ÆäÀÌÁö À̹ÌÁö
PDF
ePub

"that whatever be the case in reference to permanent insanity, whether it ought to bar a suit or not, it may with some force be argued that until all well-founded expectation or fair hope of the respondent's being able to answer the petition be dispelled, the petitioner ought, for a reasonable time at least, to be forbidden to proceed without that answer." I entirely concur in the view thus taken of this case, I believe, as late as the month of April last, and am still of opinion that the disastrous consequences which may or must ensue whenever the Court is compelled to decide this question are such as imperatively to call upon the Court to vary and qualify this order, and stay the proceedings only for a limited and definite time. But from the view taken of the case by the Judge Ordinary and my Brother Keating, it becomes necessary to consider what power or jurisdiction this Court possesses to make an order which, in case the respondent should not recover, operates as a judgment against the petitioner, and a final bar to his suit. And here it is objected in limine that the Court has no power to appoint or to recognize a guardian ad litem to the respondent, and that therefore, if the cause proceed, no defence at all can be made on her behalf. But I am clearly of opinion that such is not the law or the practice of the Court. I conceive it to be a power inherent in all the superior Courts of Law and Equity to appoint a guardian ad litem to any infant or lunatic who may be a party to a suit, whether ex motu proprio, or at the instance of any fit and proper person willing to assume and perform the duties of the office. All the cases upon this point referred to on the one side and on the other are uniform to show that it has always been the practice of Courts Spiritual, as of other Courts of Law and Equity, to appoint and recognize guardians to minors and lunatics, parties to suits before them. In "Barham v. Barham," 1 Hag. Consist. Rep. 5, a wife, a minor, plaintiff in a suit against her husband for cruelty and adultery, appeared by a curator ad litem; and in "Beauraine v. Beauraine," 1 Hag. Consist., p. 498, a curator ad litem was appointed to the respondent, a minor, sued by his wife for a divorce by reason of cruelty and adultery. This appointment was afterwards set aside by reason of the guardian having refused to accept the office. But the practice for a minor to appear by guardian in such a suit is not questioned. And in "Hancock v. Peaty," 1 Law. Rep., Divorce, p. 335, in a suit of nullity of marriage by a wife against her husband, on the ground that she was insane at the time of the marriage, the plaintiff or petitioner appeared by a guardian, her brother, specially assigned by the Court at his own instance, and the suit was carried on and a decree of nullity pronounced, the plaintiff being lunatic, and therefore incapable of acting herself, and having appeared by guardian from the beginning to the end of the suit. In “Parnell v. Parnell," 2 Hag. Consist. Rep., 169, a husband, lunatic, was permitted to institute and carry on a suit by his committee or guardian against his wife for a divorce by reason of adultery; and the principle upon which the practice rests was clearly laid down by Lord Stowell. This case is important as showing conclusively that the insanity of a petitioner or plaintiff is no bar to a suit or a decree for a divorce by reason of adultery; and, inasmuch as adultery may be set up by way of recrimination as a defence against such petition, it seems to follow that insanity is no bar to such a charge against a lunatic, and that he must defend himself against such charge through his guardian or committee. From what fell from the Court in this case it is also clear that, if necessary, the Court of Chancery might be applied to to appoint a committee, either generally or for a limited purpose, as ad litem in any suit and in any Court; and in the case now before us the Court has assumed and

that after evidence taken on both sides and closed, and when the Court, perhaps without a jury, is, to use the language of the Act of Parliament, “satisfied on the evidence that the case of the petitioner has been proved," the respondent might become insane after the case had been so closed, and the Court about to pronounce a decree declaring the marriage to be dissolved. The suit would thus have arrived at that stage at which the words of the statute are imperative that "it shall pronounce the decree;" yet, if such an order can be made, this provision of the statute is absolutely set at naught. It would be well, also, to consider whether, if the Court had pronounced judgment in favour of the respondent and dismissed the suit, and the petitioner within the time allowed by the Act were to appeal, and the respondent then should become insane, the petitioner is also in this case to be barred of the right of appeal conferred upon him by the statute. If the making of this order be to contravene the provisions of the Act of Parliament, no question as to the analogy of a petition for a divorce to other proceedings, civil or criminal, can arise. But if it were necessary to deal with this question of analogy, I must say that I think there is no analogy whatever in a suit of this nature to an indictment for an offence against the criminal law, to which it has been assimilated in argument, and in which the personal presence of the accused, and in a sane state of mind, is indispensable. In a suit like this, there is in the petitioner a right to a reparation for a wrong done, to damages against co-respondents, and it may be to property, or to interest in property, real and personal, which might otherwise pass to or continue in the respondent. Upon an indictment there is no such party to the cause, no right to redress for a personal wrong, or to damages, or to any interest in property, or affecting property, involved in the proceeding. The party prosecuting is the Crown, representing the public, and no one is injured in either person or property by the suit being brought to an end without a trial or a judgment. So far is a suit for a divorce from partaking in any degree of the character of a criminal proceeding, that, if such a suit had been instituted in any Court Spiritual before the Act establishing the Divorce Court, it could not have been conjoined with proceedings in pœnam of a criminal nature, for adultery. The Court might pronounce sentence of divorce a mensâ et thoro, but had no jurisdiction to inflict any penalty or punishment. And if proceedings of a criminal character had been instituted, it must have been by means of articles, upon the office of the Judge promoted, as by indictment at the suit of the Queen in a criminal prosecution at the common law; and then, and then only, in such criminal suit could a sentence by way of penalty or punishment have been pronounced; and the jurisdiction to entertain a suit in pœnam for adultery and pronounce a sentence inflicting punishment is still confined to the Court Spiritual, and is not conferred upon this Court by the Act. This Court, indeed, possesses no criminal jurisdiction at all. It is true that a judgment of dissolution may operate as a punishment, but so, also, may any verdict and judgment in a civil action, whether for a wrong, as a libel or an assault, or to recover landed estate, as in ejectment, or to recover a debt or damages in an action of assumpsit or trover. Yet in all or any of these cases insanity is no defence and no bar to the suit, and no ground for a stay of proceedings. It is enough that the defendant has done a wrong, and given a right of action to the plaintiff for any of the causes above enumerated in any such case, although after the wrong done he may become insane, and so incapable of making his defence or instructing an attorney or counsel. A committee or guardian is appointed who conducts the defence, and the plaintiff

enforces his legal right and proceeds with the suit to verdict and judgment. Indeed, this doctrine has been carried to its extreme length by Lord Eldon, who awarded a commission of bankruptcy, partaking both of a civil and criminal character, against an insolvent trader who, after committing an act of bankruptcy, had become insane. Again, in an indictment for a criminal offence, a trial cannot be had or begun in the absence of the accused, because he has a right, not by way of procedure, but as parcel of the common law, to be asked whether he is guilty or not guilty, and to plead "not guilty" in his own person, before he can be put upon his trial. In this suit, as in a civil cause for land, or debt, or damages, no such right exists. The Court may dispense with service of the petition, and proceed to trial and judgment in the absence of the respondent. In criminal cases, although the accused may have fled from justice, and his place of abode in a foreign country may be known, his personal appearance cannot be dispensed with, and no prosecution against him can be begun, continued, or ended, but in his presence. In these suits again, as in all other civil proceedings, if the respondent or defendant has departed the realm or secreted himself to avoid service of process, the service may be dispensed with and the suit may proceed. Indeed, upon every act, step, and stage of a cause the analogy to a civil suit is perfect, while to an indictment for a criminal offence it altogether fails. It is said that the status of the respondent is affected by the judgment; but so is that of the defendant in an action of ejectment involving a question of marriage or of legitimacy. It is true that the judgment in such an action is not a judgment in rem; but this really makes no difference. Upon an information in respect of smuggled goods exhibited under the revenue laws the judgment is a judgment in rem that the goods be forfeited, but the insanity of the defendant would be no bar to such an information. Not only, then, is there no authority that a suit involving the status of one of the parties, or terminating in a judgment in rem, cannot be carried on against a lunatic, but the case before cited of " Hancock v. Peaty" is a direct authority to the contrary; the judgment in that case being a judgment in rem, putting an end to the status of marriage, and the suit having been carried on from the beginning to the end while one of the parties whose marriage was declared null and void was lunatic, and appeared throughout by her guardian. But another objection arises as to this order, which appears to me insuperable. We find that in this case two gentlemen are, under the exigency of the 28th section, made co-respondents. We must consider, therefore, how they are affected by this order, and in what condition they are placed. They are charged with acts of adultery with the chief respondent, the wife of the petitioner-a charge, if either of them be married, of a double adultery, and in that case of such a nature that until disproved it may disturb or be fatal to the domestic peace and happiness of the accused and of his wife; or if the petitioner has been the friend of the co-respondent the charge may involve the imputation of the basest treachery or ingratitude. Upon what ground can the Court deprive the co-respondent in such a case of his right to insist that the suit shall proceed to judgment; that he shall be enabled to deny and disprove these charges made against him? It was suggested during the argument that the suit might be continued against the co-respondents only. But this is not so. The petitioner may, under the 33rd section, proceed for damages alone against an alleged adulterer with his wife, and by section 11 of the 21 & 22 Victoria, cap. 108, the Court may, after the close of the evidence for the petitioner, direct the corespondent to be dismissed. But neither of these provisions applies to the

present case; for here the petitioner has proceeded against the respondent and co-respondents jointly, and had he proceeded against the co-respondents alone the insanity of the wife would not have affected the suit, and no such order as this could have been made. So here the evidence is not closed, or indeed opened; but if it had been closed, it would only have been if the case had failed that the co-respondents could have been dismissed, and the dismissal would have been a proceeding in the suit which this order forbids. There is, therefore, no power in the Act conferred upon the Court either to direct or to permit the cause to proceed against the co-respondents under the circumstances of this case. Indeed, if the petitioner had the power, and were so to proceed, and the wife were afterwards to recover, the adultery might be tried twice over, and with different results; the co-respondents might be convicted of adultery with the wife and made to pay large damages, and the wife might be acquitted of adultery with the co-respondents. Then, let us look again to section 28. If the insanity of a respondent wife puts an end to the suit, so also must the insanity of a respondent husband against whom a divorce for adultery is sought under the 28th section. And here a lady may be made a co-respondent and charged with adultery with another lady's husband. And if this husband become insane, the suit must be stopped, and the lady, stigmatized as an adulteress, must pass the remainder of her life with this charge hanging over her head, unable to bring her accuser to the proof and insist upon her acquittal, the petitioner in the meantime averring her guilt, but unable also to bring forward her evidence and substantiate her charge. But, further, it is provided in this clause that "either party may insist on having the contested matter of fact tried by a jury." Such an order as this absolutely repeals this all-important provision of the statute. What power has the Court so to obliterate this portion of the Act of Parliament, and take upon itself to deny alike to the accuser and the accused this great privilege thus conferred upon them by the Legislature? Next, how does this order affect the petitioner with respect to the co-respondents? Here there is no claim to damages. But in cases hereafter to be governed by this decision the petitioner may have a just claim, which he seeks to enforce against a co-respondent, to large and exemplary damages. How is he to recover them? How is justice to be done? The action of crim. con. is at an end, and the order expressly forbids any further proceedings in the suit unless the chief respondent shall recover. Can it be that the Legislature intended to perpetrate this wrong? Then, as to the costs. The petitioner or the co-respondents may have incurred considerable or absolutely ruinous costs. Is there to be no means of recovering them, even where the facts of the case entitling the one party or the other to claim them may be capable of clear and immediate proof? I cannot but think that if the Legislature had intended that the Court should have power to make such an order as this, provisions would have been found in the Act for doing justice as well to the petitioner and to the co-respondents as to the party in whose favour the order is made. Lastly, it has been said that, as by the Act of Parliament the respondent may set up matters recriminatory by way of defence, it would be unjust to allow the petitioner to proceed while the respondent is in such a condition as that she cannot avail herself of the statutory defence. But the same argument might be urged in every civil cause where the defendant has become insane. The answer is that no such incapability exists, for the guardian of the respondent may plead and give evidence in support of the plea of recrimination in like manner as the respondent herself. It is true that a rule has been made, under

the authority of the statute, that a plea of recrimination must be verified by affidavit, and it is clear that no affidavit can be made by an insane respondent; and if the necessity for this affidavit had arisen from a provision in the statute it would, no doubt, have presented the argument in a much stronger form. Where, however, the statute requires the petition to be verified by affidavit (sec. 41), the petitioner is to file an affidavit verifying the same only" so far as he or she is enabled to do so." But if the statute is imperative that the Court shall pronounce for a dissolution of marriage if satisfied upon the evidence that the charge in the petition is established, I conceive that it is not competent to the Court to make an order, the indirect effect of which would be to disable itself to proceed as required by the terms of the statute. And, as before observed, "Parnell v. Parnell," 2 Consist., 169, is an authority that the committee of a lunatic husband may sue for adultery, although the wife might in such a suit plead recrimination by way of defence, thus putting the lunatic husband in the condition of a respondent. It is undoubtedly a great evil that a woman—perhaps an innocent woman-should be made to undergo a trial in a case of this nature while labouring under a state of mind which subjects her, or those who represent her in the suit, to many and great disadvantages in making her defence, and the grievance is but partially mitigated by the consideration that a judge or jury could not fail to have regard to her unhappy condition while dealing with the evidence adduced against her. But whether the evil is so great as to overbalance the wrong done to a husband, who, with possibly conclusive evidence that his wife is an adultress, finds himself bound to her for a lifetime, by a tie that is indissoluble, and denied for ever the redress that he had been taught to believe an Act of Parliament had secured to him, is a question well worthy the serious consideration of the Legislature. But I think that the Legislature should have a voice in it, and that it is not for this Court to attempt to settle the question by a law of its own making. To the Legislature, therefore, the question should be left; and if, at last, it be its will that a husband is to be thus dealt with, it is to be hoped that the Act to be passed may contain provisions under which something like justice may be done as well to him as to all other parties to the suit. Upon all these grounds, I am of opinion that this order cannot be sustained, that the Court should stay the proceedings from time to time as long as a reasonable hope remains that the respondent may recover, but when that hope shall have ceased the petitioner should be permitted to proceed with his suit.

In accordance with the judgment of the majority of the Court, the order of the Judge Ordinary was affirmed, and the appeal dismissed with costs.

II.

THE WICKLOW PEERAGE CLAIM.

THE proceedings in this curious case commenced last year before the Committee of Privileges of the House of Lords, and the following is a summary of the facts:

William, fourth Earl of Wicklow, died on the 22nd of March, 1869, without leaving any living male issue. His next brother, the Hon. and Rev. Francis Howard, who had died in the late Earl's lifetime, had had three sons by his first marriage, all of whom were dead. By his second marriage he had had a son,

« ÀÌÀü°è¼Ó »