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the proctor, who had been apointed by the minor.(z) But after a child has attained the age of twenty-one years, the father, merely in that capacity, has no special privilege to institute a suit respecting a child's marriage, but must show a specific interest as well as any other person, (a) although the child continues to reside with the father as part of his family.(b) But the liability of a father to support the issue of his child constitutes such an interest in the legitimacy or illegitimacy of such children as will entitle him to maintain a suit in the ecclesiastical courts for annulling the marriage of the child, the grandfather being bound by the positive law of the country,(c) and still more by the law of nature, to provide for his grandchildren, notwithstanding their majority.(d)

It does not appear to have been determined that the next of kin of a person, qua next of kin, with a spes successionis, has been considered to possess a sufficient interest to institute a proceeding of this kind.(e) In Faremouth v. Watson,(ƒ) it was said that a slight interest was sufficient to enable a party to bring a suit for setting aside a marriage on the ground of affinity; and the sisters of a man who were his next of kin, and had an interest under a will contingent upon the death of their brother without lawful issue, were held competent to sustain a suit for setting aside a marriage of their brother with the sister of his deceased wife.(g) The situation *of a

[ *569 ] person who, instead of receiving a benefit on the failure

of issue, was bound by the will or settlement to pay a sum of money in the event of the existence of issue of the marriage, must, it should seem, have a similar legal interest to sue for the dissolution of the marriage.(h) There is however a material distinction between voidable marriages which can only be questioned during the lives of both parties,(i) and void marriages which may be called in question at any time.(j) A stranger has no interest in the marriage of others except as one of the public, and as such can only institute a criminal proceeding, which is ad publicam vindictam. A stranger wishing to proceed in a civil suit must show a special pecuniary interest.(k)

Of the Right of Intervention of a Third Party.]-In the ecclesiastical courts a third person, not originally a party to the suit or pro

(2) Turner v. Felton, 2 Phill. R. 93. (a) Turner v. Meyers, 1 Hagg. Cons. R. 414, n.; Balfour v. Carpenter, 1 Phill. R. 221. See ante, p. 200; 3 Rep. 38 b; Barham v. Dennis, Cro. Eliz. 770.

(b) Ray v. Sherwood, 1 Curteis, 173; 1 Moore, P. C. 397.

(c) Stat. 43 Eliz. c. 2; 1 Bl. Comm. 448. See 4 & 5 Will. 4, c. 76, s. 78. See Rex v. Inhabitants of New Forest, 5 T. R. 478; Rex v. Sowerby,2 Fast, 276; Rex v. Inhabitants of Roach, 5 T.R. 252; Rex v. Everton, 1 East, 526; Rex v. Bleasby, 3 B. & Ald. 377; Rex v. Wilmington, 5 B. & Ald. 525; Rex v. Lawford, 8 B. & C. 271.

(d) Ray v. Sherwood, 1 Curteis, 230; Sherwood v. Ray, 1 Moore, P. C. 353. (e) 1 Curteis, p. 225.

(ƒ) A plaintiff in a bill to perpetuate testimony must have a present interest, but the

next of kin of a lunatic who is in a most hopeless condition both of body and mind, have not such an interest as will qualify them to maintain such a suit.-6 Ves. 269; 15 Ves. 133; 2 Jac. & W. 451; Mitf. Pl. 51 -53, 4th ed.

(g) 1 Phill. R. 335; see 2 Addams, 386. The admission of the allegation was opposed, and the judge took time to deliberate whether the parties promoting the suit had not set forth sufficient interest to authorise the court to entertain the question.

(h) Sherwood v. Ray, 1 Moore, P. C. 400; see 1 Addams, 16.

(i) Ante, p. 484; see 1 Moore, P. C. 400. (j) See 1 Hagg. Cons. R. 415, n.; 1 Addams, 27.

(k) Ray v. Sherwood, 1 Curteis, 226; 1 Hagg. Cons. R. 415, n.

ceeding, but claiming an interest in the subject-matter, may interpose in defence of his own interest in every case in which it is affected either in regard of his property or person. This proceeding is termed an intervention, and is unknown in our courts of law and equity. Parties may intervene in causes of matrimony, of ecclesiastical benefices and of testaments.(1) A party who has no interest cannot be permitted to intervene in a cause on the ground that a guardian was colluding with an adverse party.(m) If a man takes out proceedings against a woman in a cause matrimonial, and the woman has either solemnized or contracted marriage with another man, such other man or third party may if he pleases interpose in the said suit, to protect his own rights, in any part of the proceedings, even after the conclusion. It matters not whether he appears in aid of the party convened or cited to appear, or in opposition [ *570 ] to the woman, or the party convened or cited acting in collusion with the plaintiff. Neither is the case altered by any previous notice he might have of the pending suit, and of the plaintiff's having proceeded to proof. The reason is, that the court favours and protects matrimony, for in such cases the welfare of the immortal soul is involved. Consequently the publication of witnesses and the conclusion in the cause, do not prevent the interposition of a third party, alleging a prior contract and a previous marriage. He must however declare on his oath, that he does not interfere with any malicious intent, or for the purpose of protracting the litigation, and that he believes that he can make good his declarations. In such case he may be admitted to tender his allegation, and to prove his interest, notwithstanding the publication of the witnesses and the conclusion of the cause. But in matrimonial causes, the party intervening ought, and is bound, to take up the cause in that stage in which he found it when he interposed, and he must not delay the suit. The plaintiff may proceed against the defendant as if the third party had not intervened.(n)

In a suit for restitution of conjugal rights, brought by the first wife against the husband, the lady of the second marriage was not made a party to the suit, but Lord Stowell said she might have been a formal party if she had chosen to intervene, although in substance she was a party, as her marriage was pleaded and proved, and as much under the protection of the court as if she had been a formal party respecting the validity of the other marriage. Afterwards, on an appeal to the Court of Arches, an allegation was asserted on behalf of the lady of the second marriage, and time prayed, which was refused by the judge of the Court of Arches. But the Court of Delegates, on appeal, allowed time, and her allegation was given in, although it was ultimately rejected.(0)

(1) Oughton, tit. 14; 3 Phill. R. 586; 4 Hagg. Eccl. R. 67,

(m) Brotherton v. Hellier, 1 Lee's R. 599. Gail observes, in his very valuable observations on this subject, "the advocate on the adverse side should diligently examine into and ascertain the interest of the third party intervening, whether or not it relates to the principal matter in dispute."-Gail, lib. i. obs. 19. A third party may further institute a

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Although the practice of the ecclesiastical court allows any parties interested (not parties to the suit) to intervene in any stage of the suit, it seems doubtful whether the house of lords will allow [ *571 ] parties to intervene originally on an appeal from the court of session, and whether the cause must not be remitted for that purpose.(p)

No party can of right plead in a principal cause after publication has once passed of evidence already taken. Interveners must take the cause in which they intervene as they find it at the time of their intervention. Hence they can only of right do what they might have done had they been parties in the first instance, or had their intervention occurred in an earlier stage of the cause. But the court, if prayed, may still, ex gratiâ, permit a party so to plead on cause shown. Where facts set forth in an affidavit, in order to found a prayer to that effect, on the part of an intervener, were insufficient to sustain the prayer, the party so praying was permitted under the circumstances to cross-examine the witnesses on the other side, on first giving security for the payment of costs, if finally awarded against him by the court.(g)

Decree to see Proceedings.]-After a libel had been given in a suit of nullity between husband and wife, a decree to see proceedings in the cause, with the usual intimation, was taken out by the wife against the presumptive heirs in succession to the plaintiff's honours and estates in the event of the marriage sought to be impugned in the suit being pronounced void; the object of which was, that the wife might establish the important fact of her marriage not only against her husband but against the other parties so cited. A protest was made against such decree, on the ground that no instance had occurred of the issue of a similar process in a suit of nullity of marriage, where the alleged ground of nullity was a breach of the marriage act: that as no remainder-man can institute that species of suit for his own benefit, so neither is he compellable to become a party to it for that of any body else, that the party cited had no direct immediate interest in the point at issue in the cause; and that neither the proceedings had nor the sentence pronounced in it would be legally binding on him. Lord Stowell however decided nothing as to the liability of the party to be called upon under such circumstances *to see pro[ *572 ] ceedings ;(r) and Sir J. Nicholl, on appeal, abstained from intimating any opinion upon that point, but observed that the judge, in issuing the decree to see proceedings, appeared to have considered that it could at least lead to no injustice to give parties so deeply interested as those in remainder notice of the proceedings, and to afford them an opportunity of intervening if they thought it for their interest, leaving it for them to choose whether they would appear or not.(8) A decree to see proceedings is not a compulsory process menacing the parties cited with any penalty in case of non-appearance; it merely invites them to become parties to the suit, if they deem it their interest to do so, with intimation that otherwise the suit

(p) Macneill v. Macgregor, 2 Bligh, N. S. 393.447.

(9) Clement v. Rhodes, 3 Adda:ns's R. 37, 38, n.

(r) Donegal v. Donegal, 3 Phill. R. 586. (8; Chichester v. Donegal, 1 Add. R. 16. Se Earl of Belfast v. Chichester, 2 Jac. & W.439.

will proceed in their absence; it leaves them at liberty to appear or not to appear at their pleasure.(t)

Proof of Marriage.]-In ordinary cases, where the plaintiff and defendant are the alleged contracting parties, and a sentence declaratory of the nullity of an alleged marriage is prayed, the court will not pronounce such a sentence without proof of the marriage sought to be annulled. If the plaintiff fails in producing such proof, it is the duty of the court to withhold its declaratory sentence of nullity, how clearly soever all the several facts may be established in evidence, upon which, had the marriage itself been established by similar evidence, a sentence declaratory of its nullity might well have been founded.(v) Cases have occurred in which an ecclesiastical court has proceeded to a sentence of nullity without full proof of the marriage declared null by its sentence, on the ground that the requiring strict proof of the marriage from the complainant would have defeated the suit. In three cases, (w) the court in which the suit was depending pronounced a marriage therein pleaded to have been void, if any such were had; plainly in the absence, as appeared by the sentence itself, of full, at least, proof of the marriage. But in none of those suits were the plaintiff and defendant the alleged contracting *parties, for the marriage sought to be impeached in every one of [ *573 ] them was not only a marriage to which the party complainant was personally not privy, but it was a marriage the particulars of which, in all probability, were studiously concealed from the party complainant by the defendant; and that expressly in order to defeat the object of the suit, namely, a sentence annulling that marriage. Consequently it would have amounted at once in effect to a defeazance of the suit, to have required strict proof of the marriage sought to be annulled from the complainant in any one of those cases.(x)

Identity of Parties.]—In all cases where a dissolution of the marriage is the object of the suit, it is the especial duty of the court to guard against imposition; where an existing marriage is proved, it is not to be exposed to the danger of being set aside by any species of collusion, and should only be brought into question upon the most undisputed proofs. In a suit instituted to annul a marriage, on the ground of a former marriage, alleged to have taken place between a woman and a man who was living at the time of the latter marriage, the identity of the parties must be satisfactorily proved.(y)

Evidence.]-In a cause of nullity of marriage promoted by the father of a minor, the evidence of the wife of such father is admissible, for he was not a party suing in his own right, but merely a formal party, to make a lawful appearance for his daughter.(z) An objection was taken to the competency of the father to be a witness, who had originally instituted proceedings (to annul the marriage of his son), which were continued by the son on his coming of age, but the objec

(t) Ibid. 10, 11.

(v) Nokes v. Milward, 2 Addams R. 386. (w) Heseltine v. Murray, Fust v. Bowerman, Watson v. Faremouth, cited 2 Addams R. 399.

(x) Nokes v. Milward, 2 Addams R. 399, AUGUST, 1841.-2 D

400.

(y) Searle v. Price, 2 Hagg. Cons. R. 187; ante, p. 414.

(z) Buckeridge v. Buckeridge, 2 Phil. R.

131.

tion was overruled, because the son's intervention in the suit was a supercession of the father, and by taking up the suit where he found it the son had adopted and sanctioned all which had been done. For the sake of greater regularity, however, the conclusion of the cause was rescinded, to enable the father formally to withdraw himself from the suit, and then with his wife to be repeated to their depositions.(a)

[ *574 ] *SECT. IV.—OF SUITS FOR THE RESTITUTION of conjugal rights.

Object of Suit.]-The suit for restitution of conjugal rights is brought in the ecclesiastical courts whenever either the husband or wife is guilty of the injury of subtraction, or lives separate from the other without any sufficient reason; in which case the other may by suit in the ecclesiastical court compel the party withdrawing to return to cohabitation, if either party be weak enough to desire it, contrary to the inclination of the other.(a) In this suit the marriage is pleaded by the party proceeding, and it is further alleged that the party proceeded against has withdrawn from cohabitation, and the prayer is that the defendant, whether husband or wife, shall be compelled to return to cohabitation. In defence, the marriage may be denied, or the adultery or cruelty of the plaintiff pleaded in bar. This process has in a very few instances been resorted to for purposes resembling those sought to be attained by the Scotch proceeding of declarator of murriage, namely, with the view of trying the validity of a marriage, respecting the legality of which some doubt may exist, and where there may be a chance that the witnesses to establish the same may, if the marriage be contested at a future time, be dead or not forthcoming.(b)

When the court will interfere.]-The ecclesiastical court can only interfere in the way of restitution of conjugal rights where matrimonial cohabitation is suspended. Hence it is not competent for the wife to institute such a suit on the ground that she is not treated by the husband with conjugal affection, for matrimonial intercourse may be broken off on consideration of health and other causes, with which it is quite incompetent for the court to interfere. (c)

If a man has solemnized matrimony with one, and afterwards marries another, if the lawful wife desires to be restored to her husband, she may institute a suit in a cause of divorce from the tie of the second marriage, and of restitution of conjugal rights. And this suit should be [ *575 ] instituted against the *man and second woman that he married, for sentence of divorce is not valid against her, unless she be cited. And what is said of the man will hold of the woman. Or if the woman in the second marriage has a mind to have that marriage declared null, she may sue in a cause of divorce from the tie of marriage; and for the reason above mentioned, she here should institute the action against the lawful wife.(d)

(a) Sumerfield v. Mackintire, 1 Hagg. Cons. R. 419, n.

(a) 3 Bl. Comm. 94; 1 Addams, 305; 3 Hagg. Eccl. R. 619.

(b) Rep. Eccl. Comm. 43.

(c) Orme v. Orme, 2 Addams, 382.

(d) Cockburn, 109, pl. 5, 6, 7.

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