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The Facts The employees were pit deputies working in the coal mining industry. Their contracts provided for a 42 hour week but the were required to work overtime at the weekends, which brought them over the maximum 48 hour weekly working limit during the week reference period, as laid down by the Working Time Regulations The employer argued that Regulation 4 1 did not create rights which were capable of enforcement in the High Court.

The Decision: High Court The High Court held that Regulation 4 1 imposes a contractual obligation on an employer not to require an employee to work more than an average of 48 hours per week during a reference period. The High Court said that this was a free-standing legal right that created obligations under the contract of employment. And it therefore decreed that the complainant and defendant be separated from bed and board forever, provided, however, that they might at any time thereafter, by their joint petition, apply to the court to have the decree modified or discharged, and that neither of the said parties shall be at liberty to marry any other person during the lifetime of the other party.

The court then referred the cause to a master to ascertain and report what should be allowed and to be paid by the defendant or out of his estate to Mrs. Barber for her suitable support and maintenance. In pursuance of this decretal order and reference, the master made a report. The defendant filed exceptions to it. The cause was regularly brought to a hearing upon the defendant's exceptions. They were overruled and a final decree was made in the cause.

The language of the decree is that the exceptions are overruled and that the report of the master is absolutely confirmed. That for the suitable support and maintenance of Mrs. Barber there should be allowed and paid to her by the defendant or out of his estate, in quarterly installments, the annual sum of three hundred and sixty dollars in each and every year, and that as it appeared he had not given to her any support in the interval between the filing of the bill in her behalf and the rendition of the decree, that the defendant should pay to her three hundred and sixty dollars a year in quarterly payments from the 1st day of July, , that being the day when the bill was filed, and it was decreed that the sum of nine hundred and sixty dollars, being the alimony retrospectively due, should be paid forthwith by the defendant, and that the complainant should have execution therefor.

It was further ordered that the permanent alimony allowed and to become due after the Page 62 U. Barber, and in case of its not being so paid, that the quarterly payments should bear interest as they respectively became due, and that execution might issue therefor toties quoties. The court then decreed that the permanent alimony allowed to Mrs. Barber was vested in her for her own and separate use, and as her own and separate estate, with full power to invest the same in a trustee or trustees, as she might think proper to appoint, with the power to dispose of the same by will or otherwise, from time to time during her life or at her death, or either, as she may think proper, free from any control, claim, or interposition of the defendant.

The said decree, with a taxed bill of costs in the suit, was signed and enrolled according to the form of the statute in such cases made and provided in the State of New York. It is upon a transcript of all the papers in that suit, authenticated as the law requires it to be done, that the suit now before us was brought in the District Court of the United States for the District of Wisconsin.

The complainants aver in their bill that they are citizens of the State of New York, and that the defendant is a citizen of the State of Wisconsin. They then set out the proceedings of the court in New York divorcing Mr. Barber from bed and board, with especial reference to the decree and the entire record of that suit, charging the defendant with not having paid any part of the alimony adjudged to Mrs. Barber, and that there was then due to her on that account the sum of four thousand two hundred and forty-two dollars and fifteen cents, with interest at seven percent, that being the legal rate in the State of New York.

The rest of the bill it is not necessary to state more particularly than that it is a recital of a suit which had been brought upon the common law side of the District Court of the United States for the County of Milwaukee, in the Territory of Wisconsin, for the amount of alimony due by the defendant, to the declaration in which he filed a demurrer, upon which a judgment was rendered in Page 62 U. To this bill also the defendant demurred on account of the case's not being within the ordinary jurisdiction of a court of chancery, that the relief sought could only be had in the court of chancery in the State of New York, and that it did not appear that the complainants had exhausted the remedy which they had in New York.

This demurrer was overruled, and the defendant was ordered to answer. He did so. He admits in his answer the legality and locality of his marriage with Mrs. Barber; the jurisdiction of the court in the divorce case; that a divorce had been decreed between them from bed and board after contestation; and that by that decree he was subjected to the payment of alimony to the extent and in the way it is claimed in the bill he was then answering.

He admits that he left the State of New York without having paid any part of it or having made any arrangement to do so, alleging, however, that he had left real estate in New York upon which no proceedings had been taken to make it liable to the decree against him for alimony. And he then goes on to state that on the 19th day of April, , he had filed his bill in the Circuit Court of the County of Dodge, in the State of Wisconsin, against Mrs.

Barber, she then being his wife, to obtain a dissolution of the marriage contract between them, and that their marriage had been dissolved by a decree of that court, which is on record in the same. And he adds that his wife by that decree became a feme sole, and being so, she could not sue by her next friend, and that her remedy was in a court of law. To this answer a general replication was filed. The cause was carried to a hearing upon the pleadings and proofs, and a decree was made adjudging that five thousand nine hundred and thirty-six dollars and eighty cents is due from the defendant upon the alimony sued for, for principal and interest to and prior to the time of filing the bill in this cause, and that the defendant should pay it for the sole and separate support and maintenance of Mrs.

Barber, together with the costs, to be taxed within ten days, and in default thereof that execution should issue for the same. Page 62 U. It also appears from the record that the defendant had made his application to the court in Wisconsin for a divorce a vinculo from Mrs. Barber, without having disclosed to that court any of the circumstances of the divorce case in New York, and that, contrary to the truth verified by that record, he asks for the divorce on account of his wife's having willfully abandoned him.

It is not necessary for us to pass any opinion upon the legality of the decree or upon its operation there or elsewhere to dissolve the vinculum of the marriage between the defendant and Mrs. It certainly has no effect to release the defendant there and everywhere else from his liability to the decree made against him in the State of New York, upon that decree's being carried into judgment in a court of another state of this Union or in a court of the United States where the defendant may be found, or where he may have acquired a new domicile different from that which he had in New York when the decree was made there against him.

The questions made by the bill and the answer, and by the arguments of counsel, we will state in the form of an inquiry. They are as follows: whether a wife divorced a mensa et thoro may not have a domicilciation in a state of this Union different from that of her husband in another state to enable her to sue him there by her next friend in equity in a court of the United States to carry into judgment a decree which has been made against him for alimony by a court having jurisdiction of the parties and the subject matter of divorce?

In the consideration of these questions, we must not allow ourselves to be misled by the general rule which prevails in England that a suit cannot be maintained at law by a feme Page 62 U. They are exceptions to the general rule, or privileged cases under certain circumstances where it cannot be presumed, from his own acts, that the husband's control of his wife is continued and where she has been deprived of his protection to represent with her her rights and interests in a suit at law or in one in equity.

The cases mentioned in the books where a feme covert may sue as a feme sole are when her husband is banished, or has abjured the realm, or has been transported for felony; where the husband is an alien enemy, and his wife is domiciled in the realm; where the husband is an alien domiciled abroad, and has never been in the realm; or where he has voluntarily abandoned her, and is under a disability to return; so where the husband has deserted the wife in a foreign country, and she goes to England and maintains herself as a feme sole; where the husband, in a foreign state, compels his wife to leave him for another political jurisdiction, and she maintains herself there as a feme sole.

Cases have been decided in Massachusetts in conformity with the English cases. There are cases in England which have gone much further, but we do not cite them, preferring only to mention such instances as have not been questioned by subsequent cases in England or in the United States. See Story's Equity Pleading 6th edition, sec. Heath , 6 How. This is a matter of practice within the discretion of the court.

It is sanctioned in Story's equity Pleading and by Fonblanque. The modern practice in England has adopted a different course by uniting the name of the wife with a person other than her husband, in certain cases. Thus, if a married woman claims some right in opposition to the rights claimed by the husband and it becomes proper to vindicate her rights against her husband, she cannot maintain a suit against him at law, but in equity she may do so, and against all others who may be proper or necessary parties.

But it must be done under the protection of some other person who acts as her next friend, and the bill is accordingly exhibited in her name by such next friend. Story's Equity Pl. It is also said, in the same work, to be our constant experience that the husband may sue the wife, or the wife the husband, in equity notwithstanding neither of them can sue the other at law. Cannel v. Buckle, 2 P. Brooks, Pre. These citations have been made to show the large jurisdiction which a court of equity has to secure the rights of married women, when it may be necessary to exert it with the assistance of the husband or when he improperly interferes with them, so as to make it necessary for the wife to defend herself against his unwarranted claims to her property.

The result of that jurisdiction now is that the wife may in all such instances sue her husband by her next friend. There is, too, another ground of jurisdiction in equity just as certainly established as that is of which we have just spoken.

It comprehends the case before us. It is that courts of equity will interfere to compel the payment of alimony which has been decreed to a wife by the ecclesiastical court in England. Such a jurisdiction is ancient there, and the principal reason Page 62 U. It is that when a court of competent jurisdiction over the subject matter and the parties decrees a divorce, and alimony to the wife as its incident, and is unable of itself to enforce the decree summarily upon the husband, that courts of equity will interfere to prevent the decree from being defeated by fraud.

The interference, however, is limited to cases in which alimony has been decreed -- then only to the extent of what is due, and always to cases in which no appeal is pending from the decree for the divorce or for alimony. Shaftoe v. Shaftoe, 7 Vesey ; Dawson v. Dawson, 7 Ves. Haffey, 14 Ves. Angier, Pre. Coglan, 1 Ves. Street, 1 Turn. The decree in both is a judgment of record, and will be received as such by other courts.

And such a judgment or decree, rendered in any state of the United States, the court having jurisdiction, will be carried into judgment in any other state, to have there the same binding force that it has in the state in which it was originally given. For such a purpose, both the equity courts of the United States and the same courts of the states have jurisdiction. We observe in confirmation of what has just been said that the jurisdiction of the courts of the United States is derived from the Constitution and from legislation in conformity with it.

The first limitation by the latter upon the jurisdiction of the equity courts of the United States is that no suit can be sustained in them where a plain, adequate, and complete remedy may be had at law. The Court has said: "It is not enough that there is a remedy at law; it must be plain and adequate, or, in other words, as practical and efficacious to the ends of justice, and its prompt administration, as the remedy in equity.

Boyce's Ex'x v. Grundy , 3 Pet. Rowland , Page 62 U. United States Bank , 9 Wheat. It is no objection to equity jurisdiction in the courts of the United States that there is a remedy under the local law, for the equity jurisdiction of the federal courts is the same in all of the states, and is not affected by the existence or nonexistence of an equity jurisdiction in the state tribunals.

It is the same in nature and extent as the jurisdiction of England, whence it is derived. Story , 9 Pet. Such a suit for the enforcement of a decree for alimony as that before us is not an exception unless the court has not jurisdiction over the parties and the amount be not such as is required to bring it into this Court by appeal.

We proceed to show that it has jurisdiction. The Constitution requires, to give the courts of the United States jurisdiction, that the litigants to a suit should "be citizens of different states. We have already shown by many authorities that courts of equity have a jurisdiction to interfere to enforce a decree for alimony, and by cases decided by this Court; that the jurisdiction of the courts of equity of the United States is the same as that of England, whence it is derived.

On that score, alone, the jurisdiction of the court in the case before us cannot be successfully denied. But it was urged by the learned counsel who argued this cause for the defendant, that husband and wife, although allowed to live separately under a decree of separation a mensa et thoro, made by a state court having competent jurisdiction, are still so far one person, while the married relation continues Page 62 U. It was also said, for the purpose of bringing suits for divorces, they may acquire separate residences in fact, but this is an exception founded in necessity only, and that the legal domicile of the wife, until the marriage be dissolved, is the domicile of the husband, and is changed with a change of his domicile.

Such, however, and not the views which have been taken in Europe generally, by its jurists, of the domicile of a wife divorced a mensa et thoro. They are contrary, too, to the generally received doctrine in England and the United States upon the point. In England it has been decided that where the husband and wife are living apart under a judicial sentence of separation, that the domicile of the husband is not the domicile of the wife. When Mr. Philemore wrote his treatise upon the law of domicile, he said he was not aware of any decided case upon the question of the domicile of a wife divorced a mensa et thoro, but there can be little doubt that in England, as in France, it would not be that of her husband, but the one chosen for herself after the divorce.

In support of his opinion, he cites Pothier's Introd. Bishop, in his Commentaries on the law of Marriage and Divorce, has a passage so appropriate to the point we are discussing that we will extract it entire. It is of the more value, too, because it comprehends the opinions entertained by eminent American jurists and judges in respect to the domicile of a wife divorced a mensa et thoro.

He says, in discussing the jurisdiction of courts where parties sought a divorce abroad for causes which would have been insufficient at home, that "It was necessary to settle a preliminary question -- namely whether for the purpose of a divorce suit, the husband and wife can have separate domiciles; that the general doctrine is familiar that Page 62 U.

But it will probably be found on examination that the doctrine rests upon the legal duty of the wife to follow and dwell with the husband wherever he goes. In other words, she must establish a domicile of her own, separate from her husband, though it may be, or not, in the same judicial locality as his. Courts, however, may decline to recognize such domicile in a collateral proceeding -- that is, a proceeding other than a suit for a divorce.

But where the wife is plaintiff in a divorce suit, it is the burden of her application that she is entitled, through the misconduct of her husband, to a separate domicile. So when parties are already living under a judicial separation, the domicile of the wife does not follow that of the husband. Chief justice Shaw says, in Harlean v. Harlean, 14 Peck , , the law will recognize a wife as having a separate existence and separate interests and separate rights in those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved or so modified as to establish separate interests, and especially a separate domicile and home.

Otherwise the parties in this respect would stand upon a very unequal footing, it being in the power of the husband to change his domicile at will, but not in that of the wife. The cases which were cited against the right of a wife, divorced from bed and board, to choose for herself a domicile, do not apply.

Donegal v. Donegal, in 1 Addam's Ecclesiastical 8, That of Shachell v. Shachell, cited in Whitcomb v. Whitcomb, 9 Curtteis Ecclesiastical , are decisions upon the domicile of the wife, when living apart from her husband by their mutual agreement, but not under decrees divorcing the wife from the bed and board of the husband.

The leading case under the same circumstances is that Page 62 U. Warrender, 9 Bligh. In that case, Lord Brougham makes the fact that the husband and wife were living apart by agreement, and not by a sentence of divorce, the foundation of the judgment. The general rule is that a voluntary separation will not give to the wife a different domiciliation in law from that of her husband. But if the husband, as is the fact in this case, abandons their domicile and his wife to get rid of all those conjugal obligations which the marriage relation imposes upon him, neither giving to her the necessaries nor the comforts suitable to their condition and his fortune, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone makes his domicile hers, and places her in a situation to sue him for a divorce a mensa et thoro, and to ask the court having jurisdiction of her suit to allow her from her husband's means, by way of alimony, a suitable maintenance and support.

When that has been done, it becomes a judicial debt of record against the husband which may be enforced by execution or attachment against his person issuing from the court which gave the decree, and when that cannot be done on account of the husband's having left or fled from that jurisdiction to another where the process of that court cannot reach him, the wife, by her next friend, may sue him wherever he may be found or where he shall have acquired a new domicile for the purpose of recovering the alimony due to her or to carry the decree into a judgment there with the same effect that it has in the state in which the decree was given.

Alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is. When it is not paid, the wife can sue her husband for it in a court of equity as an incident of that condition which gave to her the right to sue him, by her next friend, for a divorce. It was decided in the State of Massachusetts as early as the year that there were circumstances under which it appears to be absolutely necessary for the wife to sue as for the recovery of alimony.

That case was the same in its circumstances as this with which we are dealing. The wife libeled Page 62 U. The divorce was decreed, and the husband was ordered to pay to her alimony in quarterly installments. The wife afterwards brought an action against him for arrears. He demurred to the declaration, and judgment was given for her.