ground to issue his inhibition. (c) In modern times an inhibition will be issued almost as a matter of course, but still under particular cir cumstances it is proper for the judge to consider and decide judicially whether he shall decree an inhibition, and may refuse it;(d) at the same time the court interferes with the ordinary course of appeals with great reluctance. The court is not legally obliged [561] to defer to an appeal till an inhibition is served, nor is

there any distinction whether all the acts be done on the day the appeal is asserted or some on a subsequent day; therefore the court, having overruled the objection to the admission of an allegation, on the following court day admitted the allegation, notwithstanding an appeal had in the interim been asserted.(e) In appeals from grievances the hands of the court are in no case tied up till the service of the inhibition, and the judge is to exercise a sound legal discretion whether any and what intermediate steps shall be taken. It rests with the court of appeal to determine whether the matter of fact appealed from is or is not in its nature an appealable grievance, and the inferior court is bound to defer to an appeal so far as the mere assigning of a term to prosecute can be construed a deference to it.(ƒ)

A suit for divorce for cruelty and adultery, brought by the wife, was appealed from the Consistory Court of London to the Court of Arches, and there dismissed against the husband by agreement in 1828, but the inhibition to the Consistory Court was not relaxed. In 1831 another suit for the same purpose was brought by the wife against the husband in the Consistory Court, and the judge allowed the libel to be brought in, and overruled the husband's protest, but refused to order him to appear, on the ground that the inhibition in the former suit was in force. An appeal by the wife against this decree having been dismissed for irregularity and the cause remitted, the judge of the Consistory Court refused to receive additional articles to the libel; the Arches Court on appeal admitted them, holding that the agreement putting an end to the former suit was tantamount to a formal relaxation of the inhibition. It was held by the judicial com.mittee that the Arches Court ought not to have admitted the additional articles before the husband had appeared to the suit, but they retained the cause, ordered the husband to appear absolutely to it, and declared that on his appearance they would assign to hear on the original and additional libel and exhibits.(g)

*On an appeal from pronouncing a party contumacious, [ *562 ] the judge a quo is not justified in proceeding to certify the contempt, but the superior court cannot interpose till the inhibition is returned, having nothing before it upon which to act.(h)

Allentats.]-An attentat, in the language of the civil and canon laws, is any thing whatsoever wrongfully innovated or attempted in the suit by the judge a quo pending an appeal.(i) Steps taken by the

(c) Ibid.

(d) Herbert v. Herbert, 2 Phill. R. 430; 2 Hagg. Cons. R. 264.

(e) Middleton v. Middleton, 2 Hagg. Eccl. R. Suppl. 138, n.

(f) Chichester v. Donegal, 1 Addams, 21.

(g) Smyth v. Smyth, 3 Knapp, P. C. 48; 4 Hagg. Eccl. R. 72. 509.

R. 24.

(h) Hamerton v. Hamerton, 1 Hagg. Eccl. (i) 1 Addams, 22, n.; Ayliffe, Parer. 100.

judge a quo on the same court day, but after an appeal had been entered, and subsequent thereto but prior to the service of the inhi bition, and subsequent to even the service of the inhibition, the defendant not being founded in his first appeal, were held not to be attentats.(k) It is said by Conset, that if the party appealing will proceed in the attempts, he is not compelled to prosecute or proceed in his cause of appeal until the attempts be first discussed and retracted; at least that ought to be first requested, lest he seem to recede from them; yet the said party appealing ought to take care that his appeal be not deferred whilst he is prosecuting his cause of attempts; which inconvenience he may easily remedy, having liberty to proceed in both together.(7) It seems that the regular course for revoking attentats is by a separate civil or criminal proceeding against the judge a quo, and not by charging them accumulatively in a libel of appeal.(m)

Of the effect of an Appeal.]-If an appeal be lawfully made the inferior judge cannot proceed, for his authority is suspended.(n) So by an appeal the sentence is suspended.(o) The legal effect of an appeal is mere suspension, and not the annihilation of the sentence appealed from. This is evident from these considerations: the sentence appealed from, if affirmed, that is, if it stands at all, stands as the sentence of the court appealed from, not the appellate court-the cause is remitted to the court below; it is by the authority of that court that the execution of the sentence is to be enforced;

[ *563 ] *and it remains valid from the day upon which it was pronounced by the court appealed from, and not from that upon which it was merely affirmed by the appellate court. In a word, the sentence on appeal, is dormant only, not extinct-and revives, on affirmance, with every consequence attached to it, which would have attached had no appeal been interposed. (p) Hence the stat. 3 Geo. 4, c. 75,(7) which passed after a sentence of the Consistory Court of London, pronouncing a marriage null and void by reason of minority and want of consent, under the 26 Geo. 2, c. 33, s. 11, (though pending an appeal from that sentence,) was held in no degree to affect the marriage in question in that suit. (r) A court of appeal, on an appeal from a grievance, cannot enforce payment of costs incurred in the court below.(s) An appeal suspends the sentence, but the suit still continues.(t) And when the court of appeal affirms the sentence of the inferior court, and remits a cause, the cause stands on the same footing in the court below as it would have done if there had been no appeal.(u) And the court of appeal must endeavour to put parties in the situation they would have been if the court below had done right.(v) In the case of an appeal from a grievance, the parties may

23.

(k) Chichester v. Donegal, 1 Addams, 22, extinguishes the sentence quoad præsentem

be put on the terms of arrangement for the future trial of the cause. Thus in Stephens v. Webb(x) an appeal was pronounced for on an understanding that the cause should be retained, and the adverse proctor should declare in acts of court that he admitted certain points. When new facts are admissible on Appeal.]-In an appeal from a definitive sentence, it is lawful both for the party appealing and the party appellate to allege things not alleged before the judge from whom it is appealed; and to prove things not proved, so as the publication of the witnesses produced in the first instance hinder not. But it is otherwise in an appeal from grievances, which ought to be proved by the proceedings and the act of the judge from whom [ *564 ] it is appealed; unless the grievances upon which it is appealed are omitted, and left out of those proceedings so transmitted, or that the judge from whom it is appealed, or his registrar, hath refused to enter these grievances into the acts which the party appealing supposes himself grieved upon. (y) It has been laid down as a rule on this subject, that though the court, even in an appeal from a definitive sentence, may admit an allegation, yet that it ought to be cautious, and not allow any thing to be pleaded which could have been pleaded below, and which directly contradicts the plea on which witnesses have been examined in the court below, and therefore on an appeal from a definitive sentence, the court rejected an allegation pleading facts not shown to be novita ad notitiam perventa.(z) On appeals from definitive sentences, matter which could have been pleaded in the court below, and which directly contradicts the plea on which witnesses have been examined in that court, is not admissible, but matter more generally responsive may with caution be received, especially where the cause has not been properly conducted in the court below.(a) In the case of grievances, the cause of appeal should appear on the face of the inhibition.(b) An appeal upon a grievance must be heard from the acts of the court below. The process and the registrar's return are the proper evidence of what had been exhibited; and therefore the court rejected the affidavit of a party to bring in papers which were not in the cause below, and to contradict the judge and the registrar's return.(c) We have already seen that the judicial committee may admit new evidence upon the hearing, without reference to the distinction between appeals from definitive sentences and grievances.(d)

In an appeal from refusing the prayer of a petition, the appellant, who originally prayed to be heard on his petition, begins. (e) *We have already seen that in appeals from griev[ *565 ] ances, the court of appeal cannot give costs incurred in the court below.(f) In appeals to the judicial committee, the costs are in the discretion of that court.(g)

(x) 1 Lee, 262.

(y Conset. part 5, c. 1, s. 5, pl. 3, p. 216. (z) Oughton, tit. 308, s, 1; Conset, 216; Fletcher v. Le Breton, 3 Hagg. Eccl. R. 365. (a) Price v. Clark, 3 Hagg. Eccl. R. 265. See 2 Phill. R. 394. 400. 583.

(b) 97 Canon, ante, p. 559.

(c) Fanshaw v. Verdon, 1 Lee, 625.

SECT. V.-OF SUITS OF NULLITY OF MARRIAGE.

Object of these Suits.]-Suits of nullity or suits instituted for the purpose of having marriages declared null and void are of two kinds : first, when the marriage is ipso facto null and void, and no declaratory sentence is absolutely necessary; but when it is expedient to procure a sentence to prevent the consequences which might in future take place from the death of witnesses, or other occurrences rendering proof of the invalidity of the marriage difficult or impossible. Under this head are comprised suits for declaring a second marriage null and void, when at the time of such second marriage one of the parties had been previously legally married, and the marriage not dissolved by death or the operation of law; suits for the purpose of having a marriage de facto declared null and void by reason of legal invalidity arising from a noncompliance with the marriage acts, or from force, or in very rare instances, where there is an extraordinary combination of circumstances proved in effect equivalent to force.(a) Where the marriage act declares marriages to be void, the sentence of the ecclesiastical court is declaratory only, it does not make them void. (b) But though no such sentence is necessary, it is a matter of convenience to the parties that it should be given, and it is a duty which the court owes to the public to declare the situation of the parties.(c)

The second description of suits of nullity is in cases where the marriages are voidable. (d) A sentence of nullity as we have already seen, may be obtained on account of impotence or sterility in either sex, when it can be proved to have existed at the time [ *566 ] of the marriage, (e) or on account of the marriage being within the prohibited degrees.(ƒ) In the case of voidable marriages, if the sentence of a proper ecclesiastical court be not obtained during the lifetime of both the parties, it cannot, after the death of either, be questioned in any court whatsoever.(g) In the case of a sentence in a matrimonial suit, on a voidable marriage, it does not appear that after the parties are dead the question can be agitated again by the children.(h)

In suits of nullity the court is bound to act with peculiar caution, lest the legitimacy of children may improperly be brought into question.(i) It is competent to a party to set up the nullity of a first marriage in bar of a sentence praying the nullity of a second marriage by reason of the first, although the party has previously been convicted and sentenced to transportation for bigamy in respect of such two marriages.(k)

By whom suit may be Instituted.]-Either of the parties to a marriage may institute a suit for having it declared void, on the ground

that it is material to their interests and that of the public that their status should be known, and that it should be defined by the sentence of a competent court.() The interest of the public has been considered greater in cases of marriages absolutely void, than in those merely voidable. (m) A sentence of nullity is not discretionary on the part of the court. Every person interested, who thinks there is a legal defect in a marriage, may apply and has a right to a declaratory sentence, if his application is well founded. It may be necessary for the convenience and happiness of families and of the public likewise that the real character of these domestic connections should be ascertained and known.(n) We have already seen that either of the parties to a marriage *within the prohibited degrees, and [ *567 ] that parties having a pecuniary interest depending upon the validity of such a marriage, may institute suits of nullity.(0) In suits for nullity of marriage the committee may proceed for dissolution of the marriage on account of the alleged incapacity of the lunatic at the time it was celebrated.(p)

Every parent is deeply interested in the welfare of his children as affected by matrimonial connections, and has a right to question a matrimonial contract entered into during the minority of his child;(9) not on the ground of any pecuniary, but of a moral interest, which he has in the welfare of his child.(r) So a guardian may institute a suit of this kind in respect of his ward, without reference to any pecuniary interest.(s) On a petition on the part of the wife, stating that the suit had been commenced by the father, as guardian of the minor, who was then of age, and praying that he might then be cited to appear and carry on the suit in his own name, with intimation that the court would otherwise dismiss the wife, it was held that the father might go on with a suit clearly instituted during the son's minority, after the minor came of age; and if the minor should appear in the cause, it would not abate the suit.(t) So the consent of a minor, not being necessary for suits of nullity, a testamentary guardian may proceed after the minor has attained his majority.(u) It does not appear to have been determined that the father or guardian can commence a suit after the minor has come of age; but Lord Stowell would not say that he might not, as in case of the son's death, or other particular circumstances, it might be convenient that he should have such right.(x) Where the court finds a guardian apparently appointed with sufficient regularity, in absence of proof of the invalidity of the appointment, it will be presumed that the party was properly qualified to receive it. (y) Where a minor had been excommunicated, to compel a lawful appearance in a suit for nullity of marriage, a person having appeared ready to take the *568 ] guardianship, the court ex officio appointed him, with the consent of