Durant v Durant
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1828 |
| Date | 01 January 1828 |
| Court | Arches Court |
English Reports Citation: 162 E.R. 292
Arches Court
292 DURANT V. DURANT 2 ADD. 267. [267] durant v. durant. Arches Court, Michaelmas Terra, 1st Session, 1824.- When the Court is prayed to rescind the conclusion of a cause, in order to fresh matter being pleaded, it always requires to be satisfied both that the party praying it is in no laches and that the measure prayed is one essential to the ends of justice. It always further requires that some special ground be laid (as that of such fresh matter having newly come to the party's knowledge, or as the case may be) to found the prayer. [See further, 1 Hagg. Ecc. 528, 733.] (On petition.) This was a cause of divorce by reason of adultery, brought by the wife against the husband (a) The present question respected an application made to the Court on the part of the husband, by act on petition, to rescind the conclusion of the cause ò in order to receive an allegation not filed in due time, that is, before the cause was concluded, exceptive to the testimony of certain witnesses examined upon the wife's libel. Judgment-Sir John Nicholl, In deciding upon this petition I must be understood to confine myself to the matter of the petition-for I have not thought it my duty, in order to this, to peruse and consider all the evidence (the depositions of forty-four witnesses) (b) and all the pleadings in the principal cause. The petition must stand upon its own statements-together, indeed, with what of the principal cause has been brought officially to the notice of the Court in former stages of it [268] The proceedings have throughout, I must say, the same general complexion. The eause throughout has an appearance of great and studied delay in one of the parties. It is a charge brought by the wife against the husband of adultery-which, whether well or ill founded, ought at once to have been faiily met. The suit, however, has existed nearly five years, dunug the last four at least of which it has been adversely contested, without any decision either as to the principal point or even as to the matter of alimony: so that the wife has merely obtained from time to time, and with difficulty, small pittances on account of alimony, instead of being in possession of stated alimony during this long interval, to which she was justly entitled. On the second session of Hilary Term, 1823, nearly two years ago, the Court concluded the principal cause and assigned it for informations and sentence on the next Court day ; rejecting an application made by the husband's proctor to allow further time to bring in an exceptive allegation to certain witnesses examined on the wife's libel-an application founded merely upon verbal statements made by the proctor and unsupported by any affidavit. From this an appeal was lodged at once to the Court of Delegates ; who in Trinity Term, 1823, affirmed the order of this Court and remitted the cause- in which, however, when the Court was about to proceed " according to the tenor of former acts," namely, to a hearing, it was again stopped by the present petition, praying that it would rescind the conclusion of the cause and allow time for giving in an exceptive allegation-a prayer which, as I have just said, it had once already rejected when moved to grant it (at that time, to be sure, on verbal statements merely) by the defendant's proctor. [269] Applications of this nature, for obvious reasons, are seldom acceded to by the Court; though undoubtedly it is competent to the Court to accede to them. But in order to this it ought at least, I think, independent of any special ground laid, first to be satisfied both that the measure prayed is one essential to the ends of justice, and that the necessity for praying it has resulted from no laches on his part in whose behalf it is prayed. In the absence of either, a fortiori of both, those requisites, the Court is bound to reject such a prayer, if for that reason or for those reasons only- especially in a case the proceedings in which justify a suspicion that the measure itself may be one of several contrivances to protract and impede the decision of the principal cause. The special ground laid, in addition to those general ones already suggested, for an application to rescind the conclusion of a cause in order to permit fresh matter to be pleaded, ordinarily is that certain material facts are " rioviter perventa,' newly come to the knowledge of the applicant. No such ground is Uid in support of this prayer-on the contrary, the special ground is one of such a nature as to suggest serious doubts whether, under any circumstances, the Court would be justified in (a) See 1 Add. 114. (6) Twenty-three on the libel, and twenty-one on the allegation of faculties, 2 ABB 370. DURANT V. DURANT 293 attaching any weight to it in support of such a prayer. No " new facts " are even alleged to have come to the knowledge of the defendant in this cause. He hag endeavoured, however, both to relieve himself from any charge of laches and to satisfy the Court that the measure prayed is one really essential to a due decision upon the merits of the cause-with what success I proceed to consider ; in doing which, that special ground laid for sustaining the prayer of this petition, to [270] which I have just adverted, will incidentally disclose itself. Of the evidence taken in this cause, publication actually passed on the fourth session of Michaelmas Term, 1822, the proctor for the husband declaring (all facts teiug then to be propounded) that he should give no allegation unless exceptive to the...
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