Ray against Sherwood and Ray
| Jurisdiction | England & Wales |
| Judgment Date | 12 July 1836 |
| Date | 12 July 1836 |
| Court | Ecclesiastical Court |
English Reports Citation: 163 E.R. 58
IN THE ECCLESIASTICAL COURTS AT DOCTORS' COMMONS
[173] reports of cases argued and determined in the ecclesiastical courts at doctors' commons ray against sherwood and ray. Consistory Court of London, Hilary Term, 1st Session, Jan. 18th, 1836 -The service of a citation sufficient to constitute pendency of suit.-Held that the father, qua father, has not sufficient interest to institute 1 CBRT 174. RAY V. SHEEWOOD 59 a auit in the civil form for the purpose of annulling the marriage of his daughter wiea of age. On admission of the libel. This was a question as to the admiasibility of a libel in a cause of nullity of marriage by leaaon of affinity. The facts and circumstances of the case are sufficiently set forth m the Judgment of the Court. Addams and Nicholl in opposition to the libel The King's advocate, Phillimore, and Haggard in support of the libel Burnaby for Mis Ray. [174] Judgment-Dr. Lubhingttm. The facts which gave rise to the piesent suit are as follow:-In the month of June, 1835, Emma Surah Kay was married to Thomas Moulden Sherwood. He had been previously married to her sister, who had died some time befoie the second marriage. On the '34th August in the same year a citation was taken out against both these parties at the instance of Robert Ray, alleging himself to be the father of Emma Sarah Kay, and as such interested in the legitimacy of her issue. The proceeding was in what is called the civil form, and the citation was personally served on both patties on the 24th August, the day of its date. The citation calls on the parties to appear on the third day aftet service, if that be a court-day, if not, on the court-day next ensuing. The 9th of September was the first court-day, and then the citation was returned into Couit. Proxies for Mr. Ray and his daughter were brought in on that day. On the 9th of October a proxy for Mr. Sherwood was exhibited. On the 9th of September the libel was brought in, and on the 17th November additional articles. The contents of the libel are as follow :-It pleads m the common form , first, the marriage of Mr. Ray, the father, and the birth of two daughters, Anna Rachel Louisa and Eknma Sarah ; the marriage of Anna Rachel Louisa to Mr. Sherwood in the year 1827; her death in April, 1834 } and this marnage in June, 1835. These are facts necessary to be pleaded in every suit of this description. It further specially pleads that the marriage [175] was clandestine, that the parties were not resident in the parish where the marriage took place, and that it was not discovered till the 22d August, 1835, these proceedings having commenced on the 24th August And it may be expedient, in ordei to cleai the way, for me to express my opinion as to these special and peculiar circumstances, and to say that I conceive they cannot have the least bearing on the judgment which I have to pronounce, because, in the first place, I know not how it is possible that the clandestmity of the marriage could affect its legality with reference to the relations of the parties; and, in the second place, because it has been finally settled that the non-residence of the parties in the parish cannot be pleaded in any suit for annulling the marriage itself; and, thirdly, because I do aot think the expedition with which the party has attempted to avail himself of his right can affect the ultimate decision of the cause. The additional articles plead, first, a letter of Mr Sherwood, to prove concealment, which is pleaded in the 10th article of the libel: and secondly, that Emma Sarah Ray is entitled, under the will of her great uncle, to some property. The admissibility of the libel and articles has been very fully, laboriously, and learnedly argued, and I cannot but feel indebted to the counsel on both sides for furnishing me with so much information in this case. Two objections have been urged to the admissibility of the plea, in other words, to the maintenance of the suit itself. The first is, that however competent this proceeding might formerly have been, [176] the Statute 5th and 6th Will. IV. c. 54, passed in the last session of Parliament, has rendered all such marriages valid, save those which fall under a distinct exception in the Act itself: secondly, that the father has no legal interest sufficient to give him a persona standi, or which can entitle him to carry on a civil suit. On looking to the statute in question, no one can entertain a doubt that the validity af this marriage is unimpeachable, unless, according to the terms of the statute, there was "a suit depending at the time of the passing of the Act," videlicet, on the 31st August. Marriages liable to be objected to on the ground of affinity are, by the operation of this Act, generally made completely valid to all intents and purposes, with the exception I have before mentioned, and the onus of bringing the case within the exception falls on the promoter of the suit, and in this case it is contended on his behalf that he has discharged that onus by proving the service of the citation on both 60 BAY V. SHERWOOD 1 CUET 177. parties on the 24th August, that is, seven days before the Act came into operation The counsel for Mr. Sherwood have contended that this was insufficient; that there is no lis pendens without a litis conteitatio, which clearly had not taken place in this cause on the 31st August The question I have to determine, with reference to this point, is what the Legislature meant and intended by the expressions in the Act of "a suit depending at the time of the passing of the Act." The object of the Legislature, so far as I can collect it from the words of the statute, was, in the first place to prevent such marriages in future, by rendering them null and void; and, [177] secondly, to prevent the uncertainty which existed under the old law, as to the status and condition of children, and the rights they might have. The proceeding contemplated related to the Ecclesiastical Couits only: and the first consideration, as it stiikes my mind, which I have to determine, is whether the expressions used in the statute are technical expressions, well known and admitted, and recognised in the Spiritual Courts; if so, I apprehend the Legislature must be presumed to have used them in that sense : in the same manner as if, with reference to other tribunals, the Legislature had used the expressions " heir-at-law," or ' tenant in tail," which are technical terms, and which must be supposed to be used in a technical sense. It has been said, in this case, that it is the known acceptation of lis pendens to mean the proceedings after the litis contestatio. How is such an averment to be proved' In the first place, if I could have found any decisions of these Couits which were applicable to this point, I should have considered them the very best proof of this averment. None have been cited, and to my knowledge, and as far as my search and investigation have gone, none exist in which the question has been discussed and decided. The next mode, though perhaps u less satisfactory method, is to look to books of practice , and looking to books of practice, I do not find that the position has been laid down as generally recognised or admitted it is rathei an inference from the divisions into which the subject has been parted, than a doctrine sanctioned by daily experience. There appears a doubt as to the ac-[178]-curacy and certainty of the divisions themselves, and as to what is said to form the judicmm Oughton, I find, in his Synopsis, says: "Judicium ex tnbus constat, videlicet,, principle, quod est litis eontestatio; iutermedus, quai sunt probationes , fine, qui est sententia." "Litis contestationem pnecedunt nonnulla (qu pra:paratoria judicii appellantur), utputa, citatio, certifica-torium, procuratoris constitutio, libelli oblatio " So that, according to bis definition, even the appearance of the pioctor in the cause, and the offering of the libel, are merely preparatory proceedings, and prior to the htis contestatio. In Conset (pt. '2, c. 1, s. 1, par. 3), it is said: " That which (according to Wesembecy) is called preparatory to judgment (but is no essential part of it) is the citation and the mediate parts (sell), the proof made in the cause But Mynsinger proves the contrary (scil.), that the jus vocatio, this calling to justice, or the citation, is to be accounted for the very foundation of the judicial order, being, as it weie, the causa sine qua non." To be sure, it is a rather staitling proposition that by possibility the proofs could be taken in a cause, and yet there be no lis peudens. I confess in this state of things I find extieme difficulty in saying that the lis pendens is entirely governed by there being u htis contestatio In the first place, a litis contestatio exists only in plenary suits, and it is not easy to say what is equivalent to the litis contestatio m summaiy and othei pioeeedings. This point was veiy much considered in the case of Byeily ami Wiudu* (5 Barn, and Cies.), which [179] went to the Court of King's Bench. Mr Justice Bay ley says there, if the report is conect, "According to the usage and course of proceeding in the Courts Christian, neither the personal answer nor the plea ever put in issue any of the facts in a libel, they are put in issue or admitted by a previous step-a negative or affirmative issue, a negative issue denying what the libel states, an affirmative issue admitting it." This is true respecting the plenary foim, but it is exceedingly difficult to say what the htis contestatio, 01 joining issue, is equivalent to, in the summary form of proceeding. Again, if the litis contestatio be necessary to constitute a hs pendeus, the contumacy of a party may completely defeat it. For an instance of this kind occurred about a twelvemonth ago, where the party absconded; and in such cases the party legally interested may have used all due...
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