tery of his wife, he would be entitled to a decree dissolving his marriage, notwithstanding her insanity at the time of the institution of the suit, or at the time of the pronouncing of the decree. After hearing the arguments of counsel, their lordships propounded certain questions of law to the Common Law Judges, viz., whether, under the statute 20 and 21 Vict., c. 85, proceedings for a dissolution of marriage could be instituted or proceeded with on behalf of or against a husband or wife who, before the proceedings, had become incurably insane. The Judges present during the argument were the Lord Chief Baron, Barons Martin and Pollock, and Justices Keating, Brett, and Denman. The Judges' opinions were as follows: Mr. Justice Brett first read his judgment on the question submitted by the Law Lords for the consideration of the Judges, as given above. After a long examination of the points raised, he came to the conclusion that the simple question was whether the statute gave procedure, for the argument seemed wholly applicable that if a right existed, a remedy must be found. By sections 29, 30, and 31, inquiry was rendered necessary into the respondent's case, and such counter-statements could not be inquired into without personal instructions from the respondent, and these could not be given by the respondent because of lunacy. This principle had been affirmed by both Sir Cresswell Cresswell and Lord Penzance, and, without overruling the opinion of those two eminent Judges, it was impossible to say that the procedure specified in the statute was applicable to this particular case. There were acts specifically required to be done by the statute which could not be done by the respondent if insane, and therefore he should answer the question propounded to him by saying that, in his opinion, a suit for the dissolution of marriage could not be proceeded with where either husband or wife were incurably lunatic before the proceedings were instituted. Mr. Justice Keating held that proceedings could be instituted but not continued against a lunatic after lunacy had been duly found. Lord Chief Baron Kelly said he had read the opinions of Mr. Baron Pollock and Mr. Justice Denman, and they agreed with his own. He then went on to say that he was of opinion that insanity was not an absolute bar to the proceedings for divorce; that the

judgment of the Court below should be reversed, and the proceedings carried on. It was argued for the respondent that these suits were in the nature of criminal proceedings, and could not be carried on against one who was insane, and therefore unable to instruct an attorney; but this was obviously unreasonable and unjust, and the act of Parliament did not justify such a construction. Arguing that divorce suits were a civil proceeding, his lordship instanced certain actions in bankruptcy as being far more in their nature criminal than these suits, and yet no one had ever maintained that they were criminal actions. He further pointed out, in reply to the argument that the dismissal of the appeal would be especially hard on the petitioner, that great and manifold evils must result either way from the decision of their lordships. If the appeal were dismissed, the appellant would be bound for life to a lunatic, and would be prevented from contracting marriage with another woman, while on the other hand if a divorce were granted, the respondent would find herself convicted of an offence of which, if she had been in her right mind, she might have proved her innocence. But the Judges were bound to give effect to the law where it was clear and distinct, without regard to the consequences. His lordship said they must look closely to the words of the statute, and, quoting provisions as to procedure contained in the several sections, he showed that the appellant had complied with them in every particnlar. What right, then, he asked, had the Court to refuse to decide on his petition? To do so on the ground that the respondent was incurably insane was to infringe the statute, and virtually to make a new law. In his opinion, therefore, the judgment of the Court below ought to be reversed.1

The judgment of the House of Lords was delivered on the 22d of June by Lords Chelmsford and Hatherley as follows: Lord Chelmsford said it was much to be regretted that this question, which was of such painful interest, and so

See "Times," 16th May, 1874. It may be as well to note in this place that adultery by an insane person (using the term in its legal sense) is not a cause for divorce. In this case, it is, from the absence of the consenting will, exactly as if it had been effected by fraud or by means of fear. In these cases, it would have been no ground for a decree, and neither can it in the case of insanity. See Nichols v. Nichols, 31 Vt. 328; and see 1 Bishop on The Law of Marriage and Divorce, p. 712.

nearly concerned most important and intimate domestic relations, should have led to a difference of opinion, not only in the Court below, but also among the learned Judges who had assisted their lordships. The question was one that, in whichever way it was decided, necessarily involved the most painful consequences, and the decision of their lordships would establish for the future whether any effect on suits for a divorce on the ground of adultery was produced by the circumstance that the alleged guilty party had been visited by incurable insanity. Confining his attention strictly and exclusively to the act 20 and 21 Victoria, chap. 85, by which the Court below was established, it became necessary to consider whether proceedings for a divorce were of a civil or criminal, or quasi-criminal, nature. It must be borne in mind that the act gave a right not previously existing to obtain a dissolution of marriage for adultery by the decree of a newly-created court of law, and to the provisions of that act alone they must look for the jurisdiction to be exercised. The question depended entirely upon the judicial construction of the act of Parliament. Turning, therefore, to the act as the only guide to the determination of the question raised by this appeal, he proceeded to inquire whether there was anything to be found in it to warrant the conclusion that the lunacy of the respondent created an invincible objection to proceeding with the suit. By the 31st section the petitioner was absolutely entitled to a decree unless any of the acts mentioned in the proviso were proved against him. By the proviso the Court was not bound to pronounce a decree if the petitioner had been guilty of adultery, or had delayed the institution of the suit, or had been guilty of cruelty or desertion, or had shown such wilful neglect and misconduct as had conduced to the adultery, but the respondent would now add another condition, namely, that the Court should not pronounce a decree if the respondent should become incurably insane. These were the only grounds on which the Court, under the act, was not bound to pronounce a decree. With regard to a respondent becoming incurably lunatic, the Legislature had not thought proper to provide for such a case. Either the possibility of such an occurrence did not suggest itself to the framers of the act, or, if it did, they did

not consider it ought to be a ground for staying proceedings; and what the Legislature had not expressly enacted the Judges ought not to presume. After the most anxious and careful consideration, and with no other doubt than that raised by the opinion of two of the learned Judges, he thought there was nothing in the act of Parliament to prevent a suit being instituted or proceeded with where the party proceeded against had become incurably lunatic. He was of opinion that the decree appealed from should be reversed, and the case remitted to the Court for Divorce and Matrimonial Causes, with directions to restore the petition presented by Sir Charles Mordaunt, and to hear and declare the matters referred to in such petition, and pronounce a decree upon the

same.

Lord Hatherley, after going into the familiar history of the litigation, and lamenting the retirement of Sir Samuel Martin and the death of Lord Colonsay, said that, although the conflict of opinion showed that the case was one not free from difficulty, he did not feel justified in witholding his decision until it had been more fully argued. The able opinion of Mr. Justice Brett that this was a case not provided for by the statute was, in his judgment, incorrect. The new Court of Divorce had all the powers which had formerly been exercised by the ecclesiastical courts and by Parliament, and had full jurisdiction to deal with all the subjects of her Majesty who were not specially exempted from its jurisdiction. The effect of Mr. Justice Brett's opinion was, that great hardship might be inflicted on an innocent woman if the case were allowed to go on, but that was all. The Court of Divorce had all the powers possessed by the civil tribunals generally as to the appointment of guardians ad litem for parties incapable of appearing themselves, and here a guardian had been appointed. The analogy drawn from criminal proceedings was a false one, proceedings for a divorce being in no sense criminal except that the consequences of a decree might be highly penal to a respondent (in loss of status and property,) and to a co-respondent (in heavy pecuniary damages.) If the Legislature must be taken to have purposely omitted all reference to the case of an insane respondent, the inference was that it certainly did not intend to prohibit the continuance of

proceedings instituted against one in that position. The case of Bawden v. Bawden was worthy of all respect, but it was not argued, and was, therefore, not an authority in law. On the whole, he thought that nothing would be gained by further discussion, and that the decree appealed from ought to be reversed.

Lord Chelmsford then put the question from the woolsack that the decision of the Court below be reversed, and the case remitted to the Court for Divorce and Matrimonial Causes to be tried in the ordinary way. There being no dissentient, the motion was carried.'

Since this decision. a rule nisi has been obtained by Sir Charles Mordaunt.