1843. CLOWES against CLOWES. tion of marriage the accused might plead that a Jan. 20th. marriage had actually passed, and in such a way as to give that party a right to claim the benefit of it, and if the accused obtained a sentence the Court would enjoin the accuser to return to matrimonial cohabitation; on consideration, I see no reason why, in a cause of nullity of marriage, the same principle should not be applied, and if in Wescombe v. Dods I had found, that the husband had been ordered to take his wife home, and to treat her with conjugal affection, that would have been a direct admission of the principle; but it does not appear, that Sir G. Lee did make such an order, his own report does not so state. In certain cases, it is competent to one party to obtain a sentence of divorce, where the suit has been commenced by the other party for the restitution of conjugal rights; but in those cases there is always a sentence in favour of the marriage. There are many cases, in which this Court, in a suit for restitution of conjugal rights, has received a plea of cruelty or adultery, and a divorce has been pronounced for in that suit, although originally commenced for restitution of conjugal rights, and that too, in causes coming to this Court by letters of request. If, therefore, an allegation, such as this, would have been received in the Court below, it is competent to this Court to receive such allegation; and then supposing the husband's libel had been admitted, the wife might have pleaded a valid marriage. Now comes the question whether, if she had proved a valid marriage, she could have obtained a decree for the restitution of conjugal rights. It was for some time considered that, in cases of this descrip ARCHES COURT OF CANTERBURY. tion, there should be a cross-citation, and I find the history of the practice of this Court in this respect given by Dr. Swabey in the case of Best v. Best (a). It appears that, Dr. Paul, Dr. Penfold and Dr. Jenner stated in Court as their decided opinions, that no sentence of divorce could pass where the original suit was for restitution of conjugal rights, for the reason, that there could be no sentence for divorce without a cross-citation. Sir G. Lee, however, was of opinion that a crosscitation was not necessary; and he mentioned the case of Savile v. Savile before the Delegates. Some doubts were still felt on the point, as appears by a case (b) before Dr. Bettesworth, in 1769: but, since the case of Best v. Best, no doubt has been entertained, that a party may plead, in bar of restitution of conjugal rights, either cruelty or adultery without a cross-citation. Still, those cases do not go the full length of this case, where the Court is asked to receive a libel for restitution of conjugal rights in a suit of nullity of marriage, in which the original libel has not been admitted. In D'Aguilar v. D'Aguilar (c) Lord Stowell thought he might be under the necessity of pronouncing a wife under an obligation to return to her husband: that was a proceeding by the wife against her husband, for a divorce by reason both of cruelty and adultery, Lord Stowell held both grounds fully proved; but in the course of his judgment he said, "I think this lady was in that state of oppression which fully justified the steps she took in withdrawing from her husband. That is the point (a) 1 Add. 411. (b) Matthew v. Matthew, 1 Add. 415. (c) 1 Hagg. 784. 1843. Jan. 20th. 1843. Jan. 20th. CLOWES against CLOWES. . have to determine: for, if she was not justified, I must pronounce her under the obligation to return." So that, in his opinion, if the wife had failed in obtaining a separation he must, in the same suit, have admonished her to return to cohabitation. It struck me, at the time this case was cited in argument, that it was not consistent with the doctrine of Lord Stowell in other cases, and on looking into the case of Evans v. Evans (a), I find him saying, "It is a mistake to say, as have been said on this occasion, that, in the present suit, I can issue a monition to either party to return. This suit can lead to no such sentence." This seems inconsistent with the dictum in D'Aguilar v. D'Aguilar. The Court in its search into the cases, has found several which have a bearing on this point. In Barrett v. Barrett (b), it was held, that in a suit where the citation was for divorce by reason of cruelty only, a wife was at liberty to plead acts of adultery subsequent to the citation. The Court has also looked at some old cases; in Moore v. Moore (1722, a note by Dr. Andrews), there was a suit by the wife against the husband for a separation by reason of cruelty. Sentence was given in the Court at York against the wife, pronouncing that the cruelty was not proved; an appeal went to the Delegates, they affirmed the sentence. The husband prayed the Court at York, for a monition to compel the wife to return to cohabitation, and a monition issued ; she refused to return, and was, therefore, excommunicated. In the course of the subsequent proceedings, the wife appeared, and alleged that the (b) 1 Hagg. E. R. 22. (a) 1 Cons. 120. 1843. CLOWES against CLOWES. husband was a Roman Catholic convict, and not entitled to be heard. He replied, that she being Jan. 20th. excommunicate, could not be heard to make the objection; she was purged, and her objection was renewed. It was contended that a Roman Catholic convict could not be heard. The Delegates held that although he could not originate, he might defend a suit; and they also held that this was not an original suit, that the return to cohabitation was the effect of the first sentence, and the wife was ordered to return to the husband. This shews, that in a suit for a separation by reason of cruelty, if the party proceeding, either husband or wife, fails, the Court, as a consequence, may order that party to return to cohabitation. There is another case, Smith v. Smith (Easter Term, 1718). That was a suit of jactitation by the husband against the wife. The wife proved the marriage, and obtained a sentence in favour of the marriage. A monition was prayed by the wife to order the husband to take her home; it was objected that sentence having been given in the cause, the Judges were functi officio. The Court came to no determination in that case. This case seems to affirm the principal question, that if the Judges were not functi officio, they might have decreed the party to return to cohabitation. There is one other case, although perhaps not precisely in point, Borton v. Borton, in the notes of Sir E. Simpson and of Dr. Andrews. It was a suit for a separation by reason of cruelty, brought by the wife against the husband; the wife failed, but the husband was ordered to take her home and to treat her kindly. This case seems to affirm the same position, for the wife failed to establish the 1843. Jan. 20th. CLOWES against CLOWES. cruelty, and the husband was ordered to take her home. There is, however, a distinction between these cases and the present. In this case issue is joined on the fact of the marriage; in other cases both parties agree in affirming the marriage, but join issue on other facts; in the present case the husband denies the marriage; the question is, whether this is so material a distinction as to lead the Court to a different determination from those other cases? I am of opinion that it is not a material distinction, if the libel of the husband had been admitted in this case, the wife might have pleaded a valid marriage, and might have obtained a sentence in favour of it; then, according to the other cases, a monition might have issued to the husband to return to cohabitation. It does not appear to me that there is any material distinction between the cases, for in both views, the husband is before the Court in a matrimonial cause. I am, therefore, of opinion, that, under these circumstances, the libel now offered, is proper to be admitted. It is alleged that the costs of the former libel have been taxed and paid, that removed a difficulty which the Court felt on a former day. [The party having been thrice called and not appearing, the Court admitted the libel.] |