THE PRACTICE ON BILLS OF DIVORCE. CHAPTER THE FIRST. Of the Action at Law. How far the Verdict at Law ought to be pleaded in a suit of Divorce, 487.-First used in Parliament in the Duke of Norfolk's case, 488.General Rule as to Proceedings at Law, 489.—The mere result of the Action in many cases held inconclusive, ib.— Where the Wife is Complainant, 491.-Upon a Writ of Error, the House will suspend Proceedings, unless the Errors appear to be frivolous, 493.—Payment of the Damages and Costs ought to be enforced, ib.-Cases in which Proceedings at Law have been dispensed with, 495. A JUDGMENT at law against the adulterer, especially if substantial damages have been awarded, facilitates the progress of the bill in Parliament; not only as affording evidence of the husband's diligence in seeking redress, so far as redress may be had from mere judicial authority; but also as showing the opinion of a jury respecting the merits of his case: an opinion which must ever have considerable weight in the deliberations of the Legislature upon bills of divorce. It appears that verdicts for damages are made available in suits of divorce a mensa et thoro; not, however, without some expression of disapprobation from a high authority. The following important observations of Sir William Scott (") with respect to the practice of his own court, admit of very cogent application to the proceedings of the legislature on bills of divorce: "A verdict is admitted to be pleaded in the proceedings of the Ecclesiastical Court; it has been allowed for a considerable time, though I never distinctly understood on what legal principle it was originally introduced. It is often said that it is not direct proof, but merely a circumstance; yet that is surely somewhat inaccurate. If introduced as a circumstance, it can only be on the footing of a circumstance that makes proof, though of a low kind, below what the law calls a semi-probatio; yet still of the nature of evidence or proof: but how can that be evidence against the wife which has passed in a suit to which she was not privy? It is said that it is introduced for the purpose of showing that there has been no collusion. Collusion or no collusion with the alleged adulterer is a fact which cannot, either way, legally affect the wife, who is neither party nor privy in the remotest degree to that litigation; nor do I understand in what view such an action against another party can, in any degree, instruct the conscience of the court upon the issue between husband and wife." The earliest precedent for the production, on a Divorce Bill, of a judgment at law against the adulterer, is that of the Duke of Norfolk (b), where his Grace, having recovered a verdict for one hundred marks damages, against Sir John Germayne, for criminal conversation with the Duchess, it was ordered by the Lords that the Chief Justice of the Court of King's Bench should bring up the record; which was accordingly, on the 20th January, 1692, delivered in by Lord Holt, who was asked "whether the Duchess of Norfolk had been concerned in the action as a party;" to which it was (^) 1 Hag. 289. (b) Session 1692, infra. answered by the learned Chief Justice, that "her Grace was neither plaintiff nor defendant; the action having been between the Duke and Mr. Germayne." In the last century, it appears (so far as I may presume to judge), that the House attached less importance than in our day to the verdict at law; and assuredly there was then less strictness exhibited in calling for evidence, to show that the damages awarded had been rigorously and bona fide recovered from the adulterer. In modern times, especially within the last forty years, the general rule appears to be, that the party who seeks redress, by way of divorce from the Legislature, must show that a due degree of industry has been previously exerted to obtain every other species of relief which the existing law affords. A new law will not be passed for his special accommodation, until it be first demonstrated that the established institutions of the country have been resorted to and found inadequate to remedy the evil complained of. According to this principle, a husband suing a bill of divorce, must show that he has proceeded at law against the seducer of his wife; because for the injury thus sustained, the law provides a remedy: but it is not necessary that such proceeding should have proved successful. The verdict of the jury may award only nominal damages to the husband: nay, more, the verdict may even be against him. Nevertheless he has put himself in a situation to satisfy the House that the insufficiency, or the failure, of legal remedies has arisen from no lack of honest diligence on his part. And the House, if his case be in other respects satisfactorily supported, will not permit the interests of justice to be defeated by the verdict of a Jury. Moreover, although Sir William Scott holds that collusion between the husband and the alleged adulterer ought not to affect the issue between the husband and the wife, it is certain that the House of Lords would consider such collusion, if not an absolute bar, at least a very formidable impediment to the remedy (c). Whether, therefore, it is on the principle that relief by legislation will not be granted until judicial relief, to its full extent, have been first tried and found inadequate; or whether it is on the principle of collusion, which may be supposed to be best negatived by the exercise of active hostilities against the seducer; or whether, indeed, it may not be on a mixed consideration of both these principles together; this much, at all events, is certain: that in every case where the husband applies to Parliament for a bill of divorce a vinculo matrimonii, the House of Lords will require evidence to show that the omission of proceedings at law against the adulterer has been occasioned by causes sufficient to explain and to justify such omission. That the mere result of the husband's proceedings against the adulterer is, in many cases, held unimportant, or inconclusive, will, I think, appear by reference to the following examples: Thus in Mr. Cope's case (4) a verdict was recovered at law for 1,500l. damages; and yet the bill of divorce was rejected by the House of Lords. So in the case of Colonel Powlett (e) the Jury returned a verdict for the plaintiff, with an award of damages to the amount of 3,000l.; but the House of Lords rejected a Bill of Divorce, subsequently presented in Parliament. Several other precedents to the same effect might be cited; but it will be enough to refer to the language of one of their Lordships in Mr. Dundas's case (') where it was emphatically laid down, that although the Court Spiritual might grant a separation, and () Vide George's case, Session 1836, infra. (d) Session 1801, infra. the Court of Lawaward damages, yet the House of Lords, in many cases, might not grant divorce a vinculo matrimonii. On the other hand, many bills have succeeded where the verdict has been for mere nominal damages. Thus in Mr. Chamberlain's (5), Lord Lismore's("), and Mr. Graham's cases (i), merely nominal damages were recovered at law. In Mr. Malpas' case (') the Jury awarded to the plaintiff only forty shillings. Yet in all these cases the Spiritual Court pronounced decrees of separation; and Bills of Divorce, supported by the requisite evidence, were afterwards passed into law. In the case of Mr. Loveden (*) the verdict was actually returned for the defendant. The plaintiff, nevertheless, resorted to the Ecclesiastical Tribunal; where this hostile verdict was treated as deserving of no attention by Sir William Scott, who granted divorce a mensa et thoro on the evidence produced; which evidence also proved satisfactory to both Houses, on a bill brought into Parliament for the purpose of obtaining a divorce a vinculo matrimonii.. The case in which the greatest effect appears to have been given to the result of the action at law was that of Mr. Hoare (1) where there had been two consecutive verdicts returned against the petitioner, with the entire approbation of Lord Kenyon, who had tried the cause. In that case, a bill of divorce afterwards tendered in Parliament was rejected. But it is to be observed that the Counsel were allowed to open their case upon the merits of the bill; a permission which manifestly implied that the verdicts, although, no doubt, important elements of consideration, were by no means held conclusive. Where the wife is complainant, a judgment at law is (*) Session 1814. () Session 1835. |