Forster v. Forster

In The Matter of a Suit of Robert Forster against Mary Owen Forster and Berridge.

IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER

Original Citation: (1863) 4 B & S 187

English Reports Citation: 122 E.R. 430

Thursday, June 11th, 1863.

See Mayor of London v. Cox, 1867, L. R. 2 H. L. 280; R. v. Twiss, 1869, L. R. 4 Q. B. 413; R. v. Surrey JJ., 1870, L. R. 5 Q. B. 472; Worthington v. Jeffries, 1875, L. R. 10 C. P. 383; Chambers v. Green, 1875, L. R. 20 Eq. 555.

[1871 in the matter of a suit of Egbert Forster against Mary Owen Forster and Berridge. Thursday, June llth, 1863.-Divorce Court. Foreign marriage. Suit for dissolution of marriage. Costs against adulterer. Prohibi¡tion. 20 & 21 Viet. c. 85, ss. 27, 34.-1. Quasre, whether the Court for Divorce and Matrimonial Causes, under stat. 20 & 21 Viet. c. 85, s. 27, has jurisdiction to entertain a petition for the dissolution of a marriage between British subjects when the marriage was contracted in a foreign country, as in India.-2. Qusare, whether prohibition lies to that Court1?-3. On a petition to that Court for the dissolution of marriage, the Court, if the adultery is proved, has power to order all the costs of the proceedings to be paid by the co-respondent, although it does not decree dissolution of the marriage.-4. On the 21st March, 1862, the petitioner filed a petition, in the Court for Divorce and Matrimonial Causes, for dissolution of the marriage between him and his wife, celebrated in the East Indies, according to the rites of the Church of England, on the ground of her adultery with the co-respondent, and claiming damages against the co-respondent: to which the respondent and co-respondent respectively entered an absolute appearance; but afterwards applied to the Judge Ordinary to be allowed to appear under protest, on the ground that the Court had no jurisdiction, by reason of the petitioner and respondent never having been domiciled within its jurisdic¡tion ; which application was refused. On the trial of the issues in December, 1862, the jury found that the adultery was proved, and assessed the damages to be paid by the co-respondent at 50001.; and thereupon the Judge Ordinary pronounced a decree nisi for the dissolution of the marriage, and ordered him to pay all the costs of and incident to the petition. Upon application by the co-respondent for prohibition to the Judge Ordinary : Held, that the co-respon-

4 B. AS. 188. RE FORSTER V. FORSTER AND BERRIDGE 431

dent was only aggrieved by the order for payment of the costs, which, if wrong, was ground for appeal, and therefore prohibition ought not to issue.

[See Mayor of London v. Cox, 1867, L. R. 2 H. L. 280; B. v. Twiss, 1869, L. R. 4 Q. B. 413 ; R. v. Surrey JJ., 1870, L, R. 5 Q. B. 472 ; Worthington v. Jeffries, 1875, L. R. 10 C. P. 383; Chambers v. Green, 1875, L. R. 20 Eq. 555.]

In this Term, May 26th, Coleridge obtained a rule calling upon the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes to shew cause why a writ of prohibition should not issue to prohibit him from making absolute the decree nisi for dissolving the marriage between the petitioner, Robert Foster, and the respondent, Mary Owen Forster, and from proceeding further in that suit against either or any of the parties thereto.

The rule was granted on the application of the co-[188]-respondent, whose affidavit stated that, on the 21st March, 1862, the petitioner filed his petition in the Court for Divorce and Matrimonial Causes, in which he described himself as of Chertsey, in the county of Surrey, and a major in Her Majesty's Indian army, and alleged that he was, on the 20th June, 1839, married to the respondent, Mary Ann Forster, at Bareilly, in the East Indies, and that after his marriage, he lived and cohabitated with his wife at several places in the East Indies, as well as at several places in England ; and that she left him in January, 1854, at Chunar, in the East Indies and proceeded to England and remained there; and that he left India in November, 1861, for the sole purpose of presenting his petition to the Court for Divorce and Matrimonial Causes : that by the petition he prayed that Court to decree that his marriage with the respondent might be dissolved on the ground of adultery with the co-respondent; that it did not appear by the petition what was the domicile of origin of the petitioner or the respon¡dent, or where they were domiciled at the time of their marriage, or what was their bona fide domicile at the time of the committal of the acts of adultery by the respon¡dent set forth in the petition, or what was their domicile at the time of filing the petition : that the co-respondent was served with the petition on the 25th March, 1862, and at that time had no information on the subject of the domicile of the petitioner or respondent and no knowledge of the materiality of that fact: that after an absolute appearance had been entered on his behalf, and on behalf of the respondent respectively by their solicitors, it came to the knowledge of his solicitor that the petitioner and respondent had been born in the East .Indies; that the [189] father and mother of the petitioner and respondent were born, resided and died domiciled in the East Indies ; that the petitioner and respondent had retained their domicile there from the time of their birth up to the time of their marriage, and that the petitioner bad ever since his marriage retained his domicile there: that on the 10th April, 1862, a summons was taken out by the solicitor for the co-respondent before the Judge Ordinary, to amend bis appearance, by making it an appearance under protest to enable him to contest the jurisdiction of the Court to entertain the suit by reason of the petitioner and the respondent never having been domiciled within the jurisdiction of the Court; and about the'same time the solicitor for the respondent took out a similar summons; that, on the 29th April, the Judge Ordinary refused to amend their appearances : that on the 2nd May, 1862, a plea to the jurisdiction of the Court was filed by the respondent, but, on the 20th May, by order of the Court, was taken off the files: and on the 26th May, an act on petition, in order to raise the question of the jurisdiction of the Court, was filed on behalf of the respondent, but, on the 3rd June, by order of the Court, was taken off the files : that, on the 2nd May, the co-reapondent filed an answer to the petition to prevent judgment going against him by default; that the respondent also pleaded to the suit; that in November the co-respondent obtained leave to amend his answer: that, on the trial of the issues raised in the suit in December, 1862, the jury found that the adultery was proved, and assessed the damages to be paid by him in the suit at 50001.; and thereupon the Judge Ordinary pronounced a decree nisi for the dissolution of the marriage, and condemned the co-respondent to [190] pay all the costs of and incident to the petition : that, in April, 1863, W. G-. intervened in the suit, under the provisions of stat. 23 & 24 Viet. c. 144, s. 7, in order that the question of jurisdiction might ultimately be adjudicated upon, and in May shewed cause by counsel against the decree nisi being made absolute; and the Court decided that the question of jurisdiction could not be raised by W. G. in the character of intervenes

432 RE FORSTER V. POBSTER AND BERRIDGE 4 B. * S. 191.

The affidavit of the attorney for the petitioner, which was used on shewing causa against the rule, stated that, at the time of the filing of his petition in March, 1862, he was residing at Ghertsey in the county of Surrey ; that, at the time of the com¡mitting the adultery in the petition mentioned up to December, 1859, the respondent lived with her two sons and two daughters, being all the surviving children of the marriage, in a house in London, taken for a terra of three years; that in reply to the plea of the respondent to the jurisdiction of the Court of Divorce the petitioner filed an affidavit, dated May 7th, 1862, in which it was stated that his father and mother were natural born subjects of this realm, that he had never regarded India otherwise than as the country in which his military duties were to be performed, and had on every occasion when the opportunity offered left India for the purpose of staying in this country, and intended whenever his term of duty expired to retire to this country and pass here the remainder of his days; that his marriage with the p9titioner was celebrated according to the rites of the Church of England at Bareilly in the Arch¡deaconry of Calcutta; that he had cohabited with the petitioner during the years 1850 and 1851 in places in England, and his last child by her was born during such cohabitation on the 21st November, 1850 ; that hia [191] four surviving children had been educated and brought up in this country, and two of him were then residing with him at Chertsey, and that the respondent and her two daughters by the petitioner were still resident in England.

Coleridge, on moving for the rule, relied on the ground that the Court for Divorce and Matrimonial Causes, to which, by stat. 20 & 21 Viet. c. 85, s. 6, the jurisdiction of the Ecclesiastical Courts was transferred with the additional power by sect. 27 to grant divorces a vinculo matrimonii, had no jurisdiction to entertain the suit, the marriage having been contracted in India: and cited Soldi/v. Eatdiffand Anderson (1 Swab. & T. 467), Yelverton v. Yelverton (Id. 574, 586), Simonin v. Mallac (2 Id. 67), Oollett v. Collett (3 Curt. 726, 728, 729, 730), Tendiwti's Case, cited by Dr. Lushington in Collett v. Collett (3 Curt. 731, 732), Deck v. Deck (2 Swab. & T. 90), Bond v. Bond (2 Swab. & T. 93), Brodie v. Brodie (Id. 259, 263), Story's Conflict of Laws, eh. vii. [Black¡burn J. Yelverton v. Yelverton (Id. 574, 586) proceeds on the express ground that the respondent was not domiciled in England at the time of the suit; but the cases cited there shew that when the adulterer is in England, though a foreigner, he would be within the jurisdiction of the Court. He also referred to Dalrymple v. Dalrymple (2 Hagg. Cons. Rep. 54).]

Luah (with him Mundell and H. F. Gibbons) shewed cause on behalf of the petitioner.-First. Prohibition cannot go to the Judge of the Court for Divorce [192] and Matrimonial Causes. That Court is constituted and derives its authority from stat. 20 & 21 Viet. c. 85, amended by stats. 21 & 22 Viet. c. 108, 22 & 23 Viet. c. 61, 23 & 24 Viet. c. 144, which last Act was made perpetual by 25 & 26 Viet. c. 81. It has a permanent Judge, called the Judge Ordinary of the Court, stat. 20 & 21 Viet. ç. 85, s, 9; by the same statute, s. 8, and 22 & 23 Viet. c. 61, s. 1, the Lord Chancellor and all the Judges of the Superior Courts of Common Law at Westminster are Judges of the Court; and by stat. 20 & 21 Viet. c. 85, s. 56, in the case of a petition for the dissolution of a marrage there is an appeal to the House of Lords. [He also referred to stat. 23 & 24 Viet. c. 144, s. 3.] If a prohibition lies to that Court a single Judge of this Court, sitting in the Bail Court, might grant it after sentence, and might also grant it to the Court of Appeal. [Blackburn J. It is not the dignity of the individual Judge which prevents prohibition from going.] The Court in question has a general and exclusive jurisdiction in matters and causes matrimonial, which is to be "exercised in the name of Her Majesty in a Court of record to be called ' The Court for Divorce and Matrimonial Causes;'" stat. 20 & 21 Viet. c. 85, s. 6. Its jurisdiction is much larger than that of the Ecclesiastical Courts, which had only a spiritual jurisdiction, and have been always treated as inferior Courts. In Ex parte Cowan (3 B. & A. 123) a prohibition was moved for to the Lord Chancellor sitting in bankruptcy, and Abbott C.J,, delivering the judgment of the Court, which disposed of the objections to the jurisdiction of the Lord Chancellor in the particular instance, expressly abstained from giving any opinion on the [193] question whether the Court had authority to grant prohibition to the Lord Chancellor sitting in bankruptcy. [Blackburn J. In Com. Dig. Prohibition (A 1) it is stated, "A prohibition lies to the Duchy Courts, and Courts of a County Palatine, if they hold plea of lands out of the duchy." Crompton J. And farther on it is added, " To the Court of Exchequer, if it grants an

4 B. 48.191 RE FORSTER V. FORSTBR AND BEBRIDGE 433

attachment for a proceeding in B. E. Dub. [Earle v. Paine] Salk. 550. D. Sir Eenry Warner] 1 Boll. 252."] The proceedings in the Courts of a County Palatine were in the name of the Counts Palatine, and the indictments concluded "against the peace of the Earl, his sword and dignity."

Secondly. A Court constituted by statute has power to construe the statute which gives it jurisdiction; In re Bawen (21 L. J. Q. B. 10; 15 Jur. 1196). The Judge Ordinary, when he refused to amend the appearance, and when he directed the plea to the jurisdiction to be taken off the files, must have considered the question of jurisdiction arising upon stat. 23 & 24 Viet. c. 144. And either the respondent or co-respondent might have appealed from each of those decisions.

Thirdly. This application is too late, being more than three months after the decree nisi, which would have been made absolute on a motion of course; stat. 23 & 24 Viet. c. 144, s. 7: and prohibition will not go after sentence, unless it appears on the face of the libel that the Court had no jurisdiction, Full v. Hutchins (Cowp. 422, 424); or that there was an excess of jurisdiction in the act of trial; Gould v. Gapper (5 East, 345, 363-4). [Coleridge, contra.-By stat. 23 & 24 Viet. c. 144, a. 7, "at any time during [194] the progress of the cause or before the decree is made absolute any person may give information to Her Majesty's proctor of any matter material to the due decision of the case," &o. He cited In re The Dean of York (2 Q. B. 1), plac. 6. Coekhurn C.J. The provision cited shews that the decree nisi does not become a final sentence until after the expiration of three months; but the delay after three months might be accounted for, therefore the present case is not brought within those in which this Court would not interfere after final sentence.]

Fourthly. Prohibition is only demandable of right by a party aggrieved : it is matter of discretion whether the Court will grant it upon the suggestion of a stranger; Tfie ease of The Pariah of Aston Caslle Birmidge Chappel (Hob. 66), Serjeant Morton's Case (I Sid. 65). [Wightman J. In Tarrant v. Mawr (1 Str. 576) there being cross suits by two wives in the Spiritual Court, the two husbands entered into an agreement to stay proceedings on both sides, and upon one of the wives going on prohibition was refused to her husband.] Stat. 20 & 21 Viet. c. 85, s. 28, requires that the adulterer shall be made co-respondent in a petition for the dissolution of marriage; under sect. 33, the Judge Ordinary had jurisdiction to entertain the petition against the co-respondent for damages: and under sect. 34 he has power to order the co-respondent " to pay the whole or any part of the costs of the proceedings." The right of action for criminal con¡versation against the adulterer is taken away by sect. 59 ; and there ia no other Court in which the co-respondent could be sued. Assuming the dissolution of the marriage to be beyond the jurisdiction of the Judge Ordinary, the co-respondent is a stranger [195] as to that, seeing he has no interest in that question. The dissolution of the marriage and the decree for damages against the co-respondent are independent of each other, though connected in the same suit. (He wag then stopped.)

Dr. Deane appeared on behalf of the Judge Ordinary, but did not argue.

Coleridge, Mellish, Dr. Tristram and E. C. Willoughby, contra. First. The Court for Divorce and Matrimonial Causes has no jurisdiction over an Indian marriage.

Secondly. Under stat. 20 & 21 Viet. c. 85, s. 33, there are two distinct and independent courses which the petitioner, as a husband, might have taken. He might have limited his petition to a claim for damages against the adulterer, in which case there would have been no ground for a prohibition; but by making the adulterer co-respondent in a suit for the dissolution of the marriage, he haa made him a party to a suit over which the Judge Ordinary has no jurisdiction. [Wightman J. If the Judge Ordinary thought he had no jurisdiction over the marriage he would make no decree for dissolving it, though he might decree the damages recovered againat the adulterer: the two are in their nature separable. Cockburn C.J. In Robinson v. Robinson and Lane (1 Sw. & Tr. 363), which was a petition for dissolution of marriage, the petitioner's case depended on alleged confessions contained in a diary kept by the wife, and the full Court held that it was admissible against the wife though inadmis¡sible against the co-respondent, on the ground that the respondent and co-respondent have a [196] distinct interest in the suit; and the co-respondent having been dismissed from the suit in pursuance of the power given in stat. 21 & 22 Viet. c. 108, s. 11, the suit went on against the wife.] That section, which empowers the Court to dismiss the co-respondent from the suit if there is not sufficient evidence against him, ghew» that the suit was considered indivisible. If the Judge Ordinary had no

434 RE FORSTER t'. FORSTER AND BERRIDGK 4 B. & S. 197.

jurisdiction over the marriage he had none to order the co-respondent to pay the costs of that part of the suit: they wonld not have been incurred if he had entertained the objection to his jurisdiction. [Wightman J. Might not the co-respondent have applied for a prohibition before these costs were incurred 1 At any rate this is not more than ground of appeal. Crorapton J. Suppose the Judge Ordinary gave the petitioner the coats of an issue upon which he had not succeeded, that would not be matter for a prohibition.] The wife incurs costs in her defence which are properly the husband's, and they can only be ordered to be paid by the adulterer if the husband succeeds in the principal object of the suit, viz., a dissolution of the marriage. [Cromp-ton J. That is contrary to the words of sect. 34. Suppose the marriage is not within the cognizance of the Judge Ordinary, still that section gives him juriadiction to order the co-respondent to pay the whole costs of the proceedings : they are the penalty of his adultery.]

Finally, assuming tbat the co-respondent is a stranger, he may apply for prohibi¡tion, la De Haber v. The Queen of Portugal (17 Q. B. 171, 196), Lord Campbell, delivering the judgment of the Court, said, p. 214, " We find it laid down in books of the highest authority that, where the Court to which the prohibition is to go has no jurisdiction, a prohibition may [197] be granted upon the request of a stranger, as wall as of the defendant himself; 2 Inst. 607, Com. Dig. Prohibition (E)." [Cockburn C.J. Whether the suit is divisible or not, the applicant would only have a right to get that part of it prohibited in which he is interested.] He haa a right to apply for a prohibition of the whole if he has any interest in any part.

Lush resumed his argument.-De Haber v. The Queen of Portugal (17 Q, B. 171, 196) was a very peculiar case, in which the Lord Mayor's Court assumed juriadiction over a person not within a jurisdiction. Further, in the present case the respondent and co-respondent having appeared absolutely, and pleaded, it is too late to apply for a prohibition; Chichester v. The Marquis and Marchioness of Donegal (Madd. & G. 375; reported in the Court below, 1 Add. 5), where Sir John Leach said, pp. 398, 399, " A party admitting a fact which gives jurisdiction to a Court, and appearing and sub¡mitting to that jurisdiction, upon general principles, and upon all analogies known to us, can never recede, or as it is called in the Scotch law, resile from those facts and withdraw that admission." In this Court when a party has appeared by attorney he cannot afterwards dispute the jurisdiction of the Court; though, if he appears in person, the Court allows him to withdraw. In the ecclesiastical Court, appearance is given by tie party cited, or by a proctor authorized on his behalf; Coote's Practice of thai Ecclesiastical Courts, p. 156: and in the present case the Judge Ordinary was right in refusing to allow the respondent and co-respondent to tack on a protest to their original appearance.

[198] Cockburn C.J.-We have considered the case and need not hear further argument. On this application to the Court for the exercise of its jurisdiction by way of prohibition, more than one question of difficulty arises. Whether the juris¡diction relating to marriage and the dissolution of marriage is to be exercised according to the law of the country to which the parties belonged at the time when the marriage waa contracted, and according to the conditions under which they may be supposed to have entered into the marriage contract, or according to the law of the country where the tribunal is situate the intervention of which is prayed, is one of the most difficult questions that can arise upon the conflict between the laws of two countries. I am glad that we are not called upon to decide so intricate a question, So also, assum¡ing that this case was beyond the jurisdiction of the Court for Divorce and Matrimonial Causes: whether that Court being, as I am strongly disposed to think it is, a Court of co-ordinate rank, although the subject-matter of ita jurisdiction differs from that of the other superior Courts, is one to which a prohibition could properly issue from this Court, it a question upon which it ia unnecessary to pronounce an opinion.

We dispose of this case on the narrower ground : that ia to say, on the question relating to the exerciae of juriadiction by this Court.

The applicant, the co-respondent, is a stranger, being aggrieved, on his own shewing, only in so far as he has been decreed to pay all the costs of the suit, including those of the wife, in resisting the suit for the dissolution of the marriage. The suit was one which could be brought against him alone or aa a co-respondent. If it [199] had been dismissed as against the wife, it might have been continued against him with a view to obtain damages for the wrong which the husband had sustained. The co-

4 B. as S. 200. RE FORSTER r. FORSTEE AND BERRIDGB 435

respondant then is only aggrieved in respect of being ordered to pay the coats of that which is the legal ground of complaint,-in all other respects he ia a stranger. I entirely concur in the proposition that, although the Court will listen to a person who ia a stranger, and who interferes to point out that some other Court has exceeded its jurisdiction, whereby some wrong or grievance has been sustained, yet that is not ex debito justifies, but a matter upon which the Court may properly exercise its discre¡tion ; aa distinguished from the case of a party aggrieved, who is entitled to relief ex debito justifies if he suffers from the usurpation of jurisdiction by another Court. In the present case, all that the applicant can allege is that he haa been wrongfully ordered to pay these costs. That is matter for application to the Court itself by which the decision was given to reform or redress by its own decree ; and if redress cannot be obtained there, then to the Court of Appeal. On this ground, I am of opinion that this rule ought to be discharged.

Wightman J. I agree with what the Lord Chief Justice has said on the narrower ground, viz., the insufficiency of interest in the applicant in the subject matter to entitle him to make this application.

With respect to the main ground of application for a prohibition I entertain great doubt, because by stat. 20 & 21 Viet. c. 85, the Judge Ordinary has abundant juris¡diction in the first instance to inquire into the matter. The enactment in sect. 27 is, "It [200] shall be lawful for any husband to present a petition to the said Court, praying that big marriage may be dissolved, on the ground that his wife has since the celebration thereof been guilty of adultery." Prima facie, therefore, the petitioner and respondent being British subjects and being lawfully married, although in a country which for this purpose must be taken to be a foreign country, the husband had a right to go to the Court and pray that the marriage should be dissolved. The objection then arises that the marriage is one which ia not within the jurisdiction of the Court. That must depend upon questions of fact to be determined somewhere; and it seems to me that the Judge Ordinary has a general jurisdiction to inquire into and determine those that may be raised as to the place where, or the circumstances under which, the marriage took place; and supposing he came to a wrong decision, I think it would be a ground for appeal rather than for prohibition. It is not, however, necessary to determine that matter.

Crompton J. I feel great difficulty as to the question whether this marriage is within the Act of Parliament relating to divorce and matrimonial causes; and agree in deciding the case on the narrower ground.

The applicant having had costs awarded against him under stat. 20 & 21 Viet. c. 85, s. 34, and being an adulterer, has no locus standi to complain of the dissolution of the marriage; the only suggestion is, that he ia aggrieved because he is ordered to pay costs. But they are independent of the dissolution of the marriage. Sect. 34 gives the Court discretion to order all the coats of the proceedings to be paid by the adul-[201]-terer,-whether those proceedings are successful or not as to the dissolution of the marriage. And, even if that were not so, and the Judge had made a wrong order respecting the costs, that is a question of practice, and not a matter upon which it would be proper for this Court to grant a prohibition. I am of opinion that we ought not, in the exercise of our discretion, to entertain this motion on the application of a itranger.

At the same time I agree with my brother Wigbtman in thinking that the Court for Divorce and Matrimonial Causes is the proper Court to decide whether this marriage is within stat. 20 & 21 Viet. c. 85, a. 27. That Court is a high Court established by Act of Parliament, with jurisdiction over marriages in general, and their dissolution; and this marriage was brought before it on matters appearing to be expressly within its cognizance. Whether the marriage ia one which falls within sect. 6, giving the Court jurisdiction, depends partly on law and partly on fact; and, looking at the scope of the Act of Parliament, I think that ia one of the questions which that high Court is appointed to decide, subject only to an appeal to the still higher Court given by sect 56. This is not like the drawing away a case from the jurisdiction of another Court, for there is no other Court except the Court for Divorce and Matrimonial Causes which can decide the question. Such appears to me to be the law on this subject, though it is not necessary to decide it positively, and we have not heard a full argument upon it.

Blackburn J. It is not necessary to decide whether, if the Court for Divorce and

436 EE FORSTER V. FORSTER AND BERRIDGE 4 B. 6 S. 202.

Matrimonial Gauges exceeded ita jurisdiction, we could issue a prohibition to it. I [202] incline to think that, if there were a clear excess of jurisdiction by that Court, we could do so, notwithstanding the high dignity of the persons who constitute it. But, an the other hand, the power of appeal to the House of Lords makes me doubt, because it is argued that if prohibition liea to the inferior it would lie also to the appellate Court.

The other question is as difficult a question aa can be raised; viz., whether this marriage comes within stat. 20 & 21 Viet. c. 85, s. 27, which enacts, " It shall be lawful for any husband to present a petition to the said Court, praying that his marriage may be dissolved." Suppose the case of a foreign husband, domiciled abroad, praying that a foreign marriage may be dissolved, whether the Court for Divorce and Matri¡monial Causes would have jurisdiction over that suit is a question of very great doubt, and which we have not to decide. Then is it a question which, when it arises before them, the Court for Divorce and Matrimonial Causes has jurisdiction to decide, subject to appeal to the House of Lords? At present the impression on my mind is, that I agree with my brothers Wightman and Crompton in thinking that it would not be an excess of jurisdiction in that Court to decide that question. The point, however, has not been fully argued because it is not necessary to decide it.

I now come to the ground upon which I agree with the Lord Chief Justice and my brothers Wightman and Crompton in thinking that this rule should be discharged. Prohibition is granted for two reasons, as is said in Com. Dig. Prohibition (C) (not by Chief Baron Comyns, but in a paragraph between brackets which has been intro¡duced by one of his editors, and which I think is cor-[203]-rect): " In prohibition, are, 1st, contempt of the Crown, and, 2dly, a damage to the party." If we see a contempt of the Crown, that is a case in which we ought to interfere. A stranger has in general no right to require our interference ; but if he shews that he is aggrieved and has sustained damage, then, ex debito justitue, as in any other suit, he has a right to our opinion upon the question. The distinction has not been very distinctly taken in any of the previous cases; but it seems to me to be well founded on common sense; and there can be no doubt that it is far better, as a matter of dis¡cretion, that this question should be disposed of by a Court of appeal than raised in this Court by prohibition. Then is the applicant, the co-respondent, in any sense a party aggrieved by an excess of jurisdiction, assuming the proceedings to dissolve the marriage to be such 1 He has no interest in the question whether the marriage is to stand or not. It was argued that he is not liable to damages in the present case, because he had been joined as co-respondent in the petition which claimed a dissolu¡tion of the marriage, and that if the marriage was not to be dissolved he was not liable to pay damages. I do not concur in that construction of sect. 33. I think that under sect. 29, although the Court on bearing any countercharge against the petitioner should conclude that the marriage ought not to be dissolved, the co-reapondent who had been convicted of adultery would have no right to get free from damages on thit ground. But whether that be the right of construction of the statute or not, the matter is within the jurisdiction of the Court for Divorce and Matrimonial Causes, and consequently not ground for prohibition. It is further said that the Court for Divorce and Matrimonial Causes has awarded [204] that the co-respondent should pay all the costs of the proceedings, and, consequently, has included the costs of that part of them which was incidental to the dissolution of the marriage and to the attempting to raise the question in that Court; and it is argued that if the Court had no right to dissolve the marriage, it had no right to order these costs. But sect. 34 enacts, " Wherever in any petition presented by a husband the alleged adulterer shall have been made a co-respondent, and the adultery shall have been established, it shall be lawful for the Court to order the adulterer to pay the whole or any part of the costs of the proceedings." This says in words, and must have been intended to have the meaning, that if, in the course of a petition, it appears that the co-respon¡dent was the adulterer, then whether the petition for the dissolution of the marriage were granted, or whether for some reason it were dismissed, the Court should have the power to order all or part of the coats to be paid by him. As a rule of practice it may be discreet not to order the coats to be paid by the adulterer if the petition ia dismissed; but the Court has jurisdiction to order them : and therefore on that narrow ground I think this rule ought to be discharged.

4B.&S.205. THE QUEEN V. INGHAM 437

On the other points, which were not fully argued, I desire what I have said to be considered as dicta partly obiter. Rule discharged, with costs.

[1871 in the matter of a suit of egbert forster against mary owen forster and BflRRiDGE. Thursday, June llth, 1863.-Divorce Court. Foreign marriage. Suit for dissolution of marriage. Costs against adulterer. Prohibi¡tion. 20 & 21 Viet. c. 85, ss. 27, 34.-1. Quasre, whether the Court for Divorce and Matrimonial Causes, under stat. 20 & 21 Viet. c. 85, s. 27, has jurisdiction to entertain a petition for the dissolution of a marriage between British subjects when the marriage was contracted in a foreign country, as in India.-2. Qusare, whether prohibition lies to that Court1?-3. On a petition to that Court for the dissolution of marriage, the Court, if the adultery is proved, has power to order all the costs of the proceedings to be paid by the co-respondent, although it does not decree dissolution of the marriage.-4. On the 21st March, 1862, the petitioner filed a petition, in the Court for Divorce and Matrimonial Causes, for dissolution of the marriage between him and his wife, celebrated in the East Indies, according to the rites of the Church of England, on the ground of her adultery with the co-respondent, and claiming damages against the co-respondent: to which the respondent and co-respondent respectively entered an absolute appearance; but afterwards applied to the Judge Ordinary to be allowed to appear under protest, on the ground that the Court had no jurisdiction, by reason of the petitioner and respondent never having been domiciled within its jurisdic¡tion ; which application was refused. On the trial of the issues in December, 1862, the jury found that the adultery was proved, and assessed the damages to be paid by the co-respondent at 50001.; and thereupon the Judge Ordinary pronounced a decree nisi for the dissolution of the marriage, and ordered him to pay all the costs of and incident to the petition. Upon application by the co-respondent for prohibition to the Judge Ordinary : Held, that the co-respon-