Imatges de pÓgina




tute of 4 Anne, c. 16, commenced only from the filing of the bill (y), Hawkes v. Champion (2).

The plea of a suit depending must aver that there have been proceedings in the suit (a).

II. This is purely a civil suit for the purpose of declaring the status of the parties; and the first question is, can Mr. Ray, in his character of the father of this lady, sustain such a suit : The Citation states him to be a person interested in the legitimacy or illegitimacy of the issue of the marriage; but if he abstain from bringing the suit at all, the issue must be legitimate, for the marriage was celebrated before the passing of the Act 5 & 6 Will. 4, c. 54, and if he succeed in the suit he bastardizes the issue; if, therefore, the legitimacy of the issue of the marriage is his object, his real interest is to uphold the marriage.

But what interest, speaking legally, has Mr. Ray in the legitimacy of the offspring of this marriage—in the status of his grandchildren? He has absolutely none. If a child of full age be living in open prostitution, the father can have no writ of habeas corpus, nor can he have an action for taking away any of his children except his heir, Brown v. Dennis (6).

A husband suing on behalf of his wife, a father on behalf of his infant child, or a guardian ad litem on behalf of his ward, is in a representative character, and not because they have any interest. This is the principle of the common law. The Court of Chancery acts only as a trustee, and cannot interfere with the

(y) Anon. 1 Vern. 318. For. Rom. 218. 12 Bac. Ord. Bea. Ord. in Ch. p. 7.

(2) Carey, 51, et ib. 63 and 66. Toth. 28-37. 2 Collectanea Juridica, 150, 151, &c.

(a) Mit. Plead. 246. (6) Cro. Eliz. 770.


v. Ray.

infant's power over his personal estate, Ex parte SHERWOOD Philips (c).

The doctrine of the patria potestas has been utterly abolished by the Canon law, which is the authority here, so far as it has not been overruled (d), Ratcliffe's Case (e); Caudrey's Case (f).

According to the Canon law the marriage would have been legal without the consent of the parents.

The maxim of the civil law, that the child was in fact the father, was abrogated in the 11th century; from that period it has been uniformly held, that the father, quà father, has no interest in the child, with respect to matrimony, even though the child be under fourteen (9).

That was the state of the Canon law in England up to the time of the separation of this country from the see of Rome (h).

The father had no power to annul the marriage, nor could he have ravishment of ward (i). The same rules applied in Scotland, and have prevailed wherever our laws have been adopted (k).

The Act 26 Geo. 2, c. 33, first gave the father authority over the marriage of his child: by the 11th section, marriages solemnized by licence without con

(c) 19 Ves. 122.
(a) Swinburn Mat. Cont. sec. VI. IX.
() 3 Co. Rep. 37.
(f) 5 Co. Rep. 1.

(9) Greg. Dec. lib. VI. tit. 2, c. 3; Gloss. ib. Gaili. lib. II. obs. 95, p. 480. Princip. Jur. Can. Boehmer, lib. III. s. 3. tit. 3, § 368. Cor. Jur. Can. lib. II. Gloss. “Infantes.” “ Ejus.” Tractatus Universi Juris, tom. IX. Cor. Jur. Civilis, Dig. Accursius, tom. I. lib. 4, tit. 4.

(h) Coun. of Trent, s. 24, c. XI.
(1) Com. Dig. tit. Guardian, H. 3.
(k) See Chancellor Kent's Com. 2 vol. p. 73.



V. Ray.

sent of parents or guardians, the parties being under age, are declared absolutely void (1).

Butler v. Dolben (m) was the first case after that statute, and it was there decided that it is under the equity of the statute that a father is permitted to sue to dissolve a marriage contrary to the Canonical rules; such authority is, however, confined by the Act to the period of minority; what interest then can he have when the parties have attained their majority ?

By the civil law no one can commence a suit unless he has an interest; this principle is recognised both in the Commentaries of Innocentius (n) and

Alciatus (o).

() 1 Blac. Com. 452.
(m) 2 Lee, Ecc. Rep. 312.

(n) Innocentius IV. Com. Greg. Dec. lib. II. tit. 3, de Libelli obla-
tione, cap. 1, pl. 6. “In libello debet contineri causa, vel actio ex qua
agitur. Ipsam autem non potest dimittere; sed et libellum obtulit,
necessario habet ipsum prosequi, nec potest pænitere, nec se retrahere,
quin reo de interesse suo satisfacere teneatur nisi et reus consenteat-nec
etiam causam mutare, nisi primam dimittat.”
() Alciatus. Legista “De pactis.”

“Huic que annotant doctores eum, cujus amplius interesse desinit à judicio repelli. Hac enim exceptio, tua non interest, ante litem contestatam, ut de ejus natura est, apposita, agentem à limine judicii summovet *. “Nam sicut à principio agere is non potest cujus non intersit t; ita si ex post facto res ad eum casum deveniat à quo nequit inciperet. Idemque de exceptione dicendum ut is solus cujus interest excipere potest s. Actio nihil aliud est quam jus persequendi judicio id quod sibi debetur || : non potest aliquis ad hoc solum agere ut alii noceat nec sibi prosit.” "Impossibile est quod oriatur actio ex quo nihil debetur

* Bart. ff. de ineff. test. Lex Posthumus sect. “ si quis ex his."
† ff. Ad Senatus Consult. Trebell. lex “si patroni;” sect. 2. “qui fidei com.”
I ff. De verborum obligationibus, lex “si sub una," sect. 1.
$ ff. Ad Senatus Consult. Trebell. lex "à quo,” sect. “si de testamento.”

|| Dig. Inst. tit. VI. ff. De rei venditione, l. “In fundo.” Barth. 1.
"Edita.” Cod. “De edendo."




And the kind of interest requisite is speciale inSHERWOOD teresse (p).

III. The origin of this sort of suit in the Ecclesiastical Court may be gathered from a passage in the Institutes of Lancellottus (9); and the principle is, that no person shall accuse the marriage, unless he has - interesse," a distinction being taken between absolute and respective interest. Thus, during the lives of the husband and wife, the parents of neither party could attack the marriage; but after the death of one of the parties to the marriage, the relations, though

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parti *.”

* Appellatione 'interesse' quantumcunque generali non venit nisi damnum emergens vel lucrum cessans t."

(p) Greg. Dec. lib. V. tit. 1. “De accusationibus," cap. 17. “Quando agitur civiliter non agitur, nisi ratione speciale interesse : quod ex ipsa definitione actionis patet sive de crimine agitur puta furto vel simili, sive de pecuniaria causa agitur puta ex empto, vel deposito, vel simili; nisi in popularibus actionibus f ubi agitur civiliter et tamen speciale interesse non prosequitur: tamen potest dici quod in populari actione speciale interesse prosequitur universitates cujus nomine agitur: quando autem criminaliter agitur, nullum proprium interesse prosequitur sed tantem pænam imponi accusato, sive vindictam, sive ultionem.

(2) Inst. Jur. Can. lib. II. tit. 15, “Qui matrimonium accusare vel contra aliud testificare possunt.” Tit. § 2. "Ad accusandum matrimonium, non causa delicti soli conjuges admittuntur. Hoc dicit, sed nec omnes ad accusationem, testimoniumve dicendum admitti debent: nam si de tali impedimento agendum sit, quod neque conjugium in se delictum contineat, nec ob id matrimonium dissolvi cujusquam intersit, præterquam ipsorum conjugum, (ut puta, si erratum in conditione status fuerit : vel si mulier ita sit ut cognosci non possit: arcta, vel si frigidus, ut coire nequeat,) soli ipsi conjuges admittuntur.”


* Ib. p. 168.

† Ib. p. 169. Gloss. Barth. Bald. et al. 1. “Unica.” Cod. VII. tit. 17. De sententiis quæ pro eo quod interest proferuntur."

# Vide Gothofred. Dig. de popularibus actionibus. Bart. idem.



1. Ray.

collateral, might attack it, subject, however, to any interest the relations of the deceased party had to revindicate the marriage. It amounted to this, that the issue of the marriage might be bastardized after the death of one of the parties to the marriage, but not during their lives (r).

In France, previous to the Code Civil, under the ordinance of Blois, Art. 40, and the declaration of Louis XIII. of 16th November 1639, the marriage of minors, without the consent of parents, was void ; but if, after the son attained majority, he married before thirty, or the daughter before twenty-five, though they were subjected to be disinherited, yet the marriage was valid (s).

In the time of Edward III, the contest arose between the spiritual and temporal courts respecting the bastardizing the issue of a marriage contracted contrary to the ecclesiastical law, when the Court of King's Bench, for the first time, decided that, after the death of either of the parties to the marriage, no suit could be entertained, the object of which was to bastardize the issue, and granted a prohibition against the prosecution of such suits (t). The Court, however, would not exercise this interference during the lives of the parents; and hence arose the distinction between marriages void or voidable. Kenn's Case (u). Respecting the making valid the marriage, the case was different, for all persons having an interest in

(r) Euvres de Pothier, 4to. ed. 3 vol. p. 336. 343, et Part V. c. 1, art. 1-7, p. 443.

(8) Pothier, Traité du Mariage, Pt. 4, c. 1. p. 326.

(t) See Cases Collected Temp. Ed. III. Harris on Adulterino Bastardy, p. 34 to 43. (u) 7 Co. Rep. 42-45.

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