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impeach the licence to preach granted by the bishop of the diocese, because he had not a sufficient interest. In Montague v. Montague (s), which was a cause of divorce, the Court intimated an opinion, that where the validity of the marriage was questioned, it might permit third parties, who had estates expectant inter alia upon the issue of such marriage being illegitimate, to be cited to see proceedings, so far as related to the marriage. In Nokes v. Milward (t), Dr. Swaby, in giving judgment, mentions the case of Faremouth v. Watson, wherein a decree for nullity of marriage by reason of incest was given, the cause having been promoted by a party having a civil interest in the husband's estate, liable to be defeated in the event of his marriage not being impeached with effect, during the joint lives of himself and his wife, de facto the contracting parties. No further note of the case is to be found in the books; but it is clear that the interest in the party promoting the suit was a vested interest.

In Turner v. Meyers (u), a suit for nullity of marriage by reason of insanity of the husband, promoted by himself after his recovery, former proceedings on the part of the father were not admitted, the son being of age at the time of the marriage; and in Balfour v. Carpenter (x), where the marriage was annulled by reason of the minority of the husband and the want of his father's consent, Sir John Nicholl, in giving judgment, says, It has been stated in argument, that on the son's coming of age the father took no steps to dissolve the marriage. But how could he? The son being of age, the father was not competent to prosecute the suit." So that notwithstanding any supposed

(8) 2 Addams, Ecc. Rep. 372. (t) 2 Addams, Ecc. Rep. 386.

(u) 1 Hagg. Cons. Rep. 414.
() 1 Phil. Rep. 221.

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บ.

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RAY.

or possible interest he might have, the son being of age, the father could not sustain such a suit.

Now all these authorities show, that the interest to support a suit for nullity of marriage must be a pecuniary vested interest, and that the claim here set up of succession in case of intestacy is not of that certain or vested nature as can entitle Mr. Ray to prosecute this suit. Some allusion was made in the Court below to the situation of the family, and it was said by the learned Judge of the Arches, that Miss Ray was not emancipated; that she had not quitted the parental roof, and that, by the law of nature, her father was bound to protect her, and had therefore a right to prosecute such a suit as this. There is no authority for the exercise of such a right; nor can any analogy be drawn from the poor law, whence the word emancipated has been borrowed. The expression is derived from the Civil law, and the propriety of its use is very questionable; but, at the highest, it means only a particular state of circumstances; differing entirely from the usual and popular sense of the term, and wholly inapplicable to the status of a child of the age, and in the circumstances here existing.

The King's Advocate (Sir John Dodson):

The argument on the other side proceeds on two assumptions; first, that the Legislature has used the word depending in the strictly technical sense of lis pendens, and, secondly, that, according to the civil law from whence the practice of the Ecclesiastical Courts is derived, there can be no lis pendens until there is litis contestatio. Neither of these assumptions are well founded.

The citation issued on the 24th of August 1835,

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returnable within three days after service. On the same day it was served personally both on Mr. Sher- SHERWOOD wood and Miss Emma Ray, so that it was returnable into Court on the 27th. The Act of 5 & 6 Will. 4, c. 54, received the royal assent on the 31st: it provides that no marriage shall be thereafter annulled for the cause of affinity by sentence of the Ecclesiastical Court, unless by a sentence pronounced in a cause which shall be depending at the time of the passing of that Act. This is the state of the cause at the commencement of the long vacation; and as no step could be taken until the first court-day, no appearance is entered before the 9th of September, when it being an extra court-day, the citation is brought into Court and a proxy exhibited for Miss Emma Ray. Now the wording of this proxy is not immaterial, for although it is in the ordinary form, yet it shows clearly how the Court in which the proxy is exhibited, as well as the parties themselves, treat a cause in which the steps I have already mentioned have been taken. The proxy runs thus: "Whereas there is now depending in judgment in the Consistorial Episcopal Court of London a pretended cause of nullity of marriage by reason of alleged incest," &c. On the 14th of October Mr. Sherwood exhibits his proxy in the same form. Both proxies are exhibited without protest, and thus the parties not only themselves declare that a suit is depending, but they formally enter their appearance in the Court, and submit to its jurisdiction and authority. It is quite clear, therefore, that at this period neither party thought of availing themselves of such a defence, and I apprehend, even if it were valid, it is too late to urge it now. On the 17th of November the additional articles were

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brought in, and on the 18th of January following the cause was heard, when, for the first time, the objec tion was taken. True it is that both the libel and additional articles were rejected by the learned Judge of the Consistory Court; but it is not pretended that the grounds of such rejection were, that the Court had no jurisdiction by reason that no suit was depending. Mr. Ray being dissatisfied with this decision, appealed to the Arches Court of Canterbury, and there again Miss Emma Ray exhibited her proxy in the same form as before, and without protest. According, therefore, to the argument on the other side, there is this anomalous state of things, that there is a cause, begun and proceeded with through all its stages up to the hearing and judgment, in the presence of all the parties interested, carried to two successive courts of appeal without protest, and yet at this moment not depending so as to give either Court authority to decide it. A proposition involving such a position of things is, on the very face of it, untenable; but what is the practice really, as stated in the books referred to and relied upon in the Ecclesiastical Courts? In Oughton, tit. 198, "De Citatione in Causâ Matrimoniali," it is thus laid down, "Si agens in causâ matrimoniali credit, vel dubitat partem ream citandem velle (lite pendente) ad alia vota convolare (id est, cum alio aut contrahere aut solemnizare matrimonium) curare potest ut in citatione inseratur inhibitio, contra partem ream, ne (lite hujusmodi pendente) covolet ad alia vota, matrimoniumve aliunde quovis modo contrahat, et quod si, de facto antea contraxerit (id est; ante executionem citationis) illud, in facie Ecclesiæ, solemnizari non procuret, sub pœnâ juris et contemptus." So that, in a proceeding in causâ matri

moniali, if the party against whom the suit is insti-
tuted “lite pendente" enters into a contract of mar-
riage with another person, the other party has a
remedy, and this lis pendens is not only before contes-
tatio litis, but ante executionem citationis. Again, in
tit. 201, "Si mulier contra quam agitur, in causâ
matrimoniali, non obstante pendentia litis et inhibitione
(quod, lite pendente, non convolaret ad alias nuptias),
matrimonium solemnizaverit, vel matrimonium con-
traxerit cum alio; hoc allegato, et probato, est seques-
tranda (sumptibus petentis) lite pendente;" and
there are several other parts of the section De Causá
Matrimoniali which speak of a breach of the inhibi-
tion "pendente lite." In title 31,
In title 31, "De Contemptu,"
it is thus stated, "De modo petendi decretum in
negotio contemptûs, in
in causâ matrimoniali; петре
propter solemnizationem matrimonii (pendente lite) in-
hibitione judicis in contrarium non obstante." Again,
after reciting the issuing and serving of the citation
with inhibition, it proceeds: "Quodque (vestris litteris
inhibitoriis, et executione earumdem, non obstantibus)
ipsa, post executionem earumdem (in contemptum ju-
ris, et jurisdictionis vestræ, non ferendum) matrimo-
nium quoddam prætensum (de facto) contraxit, cum
quodamvis et illud, in facie Ecclesiæ, solemnizari, seu
potius profanari curavit." It appears, therefore, that,
with reference to the customary form of the instru-
ments in the proceedings in the Ecclesiastical Court,
as well as the authority of Oughton, who is relied on
as the general authority for the practice in those
Courts, that the contestatio litis is not necessary to
constitute a lis pendens, and that there may be "a suit
depending in the Ecclesiastical Court," before contestatio
litis; that the lis pendens commences with the extracting

1837.

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v.

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