MOORE, 96 HARRISON 2'. HARRISON [ 18421
P.C.], pp. 150, 154, as to the power of this Court to issue a mandamus to Judges of
Colonial Courts.
--
f 7 3 3 . 3 . '+p*
1961 ON APPEAL FROM THE ARCHES COURT OF CANTERBTJRY.
FISKE GOODEVE FISKE HARRISON,-AppeEZctn~; JANE €IARRISON,--
Respondent ++ [June 22 and July 6,9, 18421.
A party in contempt for not obeying a monition, whose contempt has been signi-
fied under 5 3 Geo. III., e. 127, and a w r i t de ron tumee eapiendo, extracted
against him, is not precluded from appealing from the principal smtence,
though pronounced in pcmzarn. Protest against permission to appeal, under
such circumstances, overruled [4 Moo. P.C. 991.
Sentence of nullity of marriage, caum i n i p o ~ e n t ~ ~ , pronounced on confession of
non-consummation, and refusal to undergo inspection j[4 Moo. P.C. 1031.
A medical certificate of the competency of the party in a suit impotenticr tazrcn,
not in evidence in the Court below, refused to be admitted on Appeal [4 Xoc,.
This was originally a suit for nullity of marriage, commenced in the Consistory
Court of London, by the wife against the husband, irnpotentia cnusn. The Appellant
(the husband) was pronounced in contempt, for non-compliance with a monition to
undergo inspection, and his contempt was directed to be signified pursuanb to the
Stat. 53 Geo. III., c. 127. A sipif icavit was accordingly issued to the Court of
Chancery, and the writ de contundace c a p k d o was extracted : but the Appellant;
having absented himself from home, and evaded service of the monition, the further
proceedings were carried on in penam, to the hearing of the cause, whon a sentence
of nullity was pronounced. The Appellant appealed from this sentence to the Arches
Court of Canterbury, and upon his petition, an inhibition, citation, and monition
were decreed. The Respondent appeared under protest, alleging the matters above-
mentioned, and she prayed that the inhibition might be relaxed, and the protest
sustained.
O n behalf of the Appellant, it was contended that all the proceedings subsequent
to the contempt being signified were null and void, and that the contempt was there-
fore [97] waived; and he alleged that he was willing to obey all lawful commands
of the Court.
The learned Judge of the Arches Court (Sir Herbert Jenner Fust) was of opinioli
that the Appellant was not in cantempt, when the sentence was pronounced ; and that
he was not, precluded from prosecuting the Appeal, and overruled the protest,
assigning the Appellant to appear absolutely (reported 3 Curteis, I). From this
sentence the present Appeal was brought.
Dr. Bddams, (with whom was Mr. Hope,) for the hpoi ident , in support of the
Protest (June %).--The sole question is, whether the Appellant can be let in to appeal
from the sentence pronounced i n panam, he being a t the time in contempt. It is
urged on the other side, that as we proceeded by sigikficnvit, we have waived the
contempt. This is not the case ; the waiver, if any, was only so far as the proceeding
upon the sigmficavit, not as to the contempt itself. No instance can be cited of a
sentence being appealed from, which has been pronounced in pain of contumacy. In
matrimonial causes, resort is necessary, a t times, to compulsory process $0 allow the
wife alimony, and if the husband does ncst pay it, he is in contempt, and may be
imprisoned. That however does not impede the proceedings-the principal oause
still goes 011. But where a definitive sentence, as in this instance, has been pro-
nounced in contempt, that party loses his right by his contumacy, to appeal from such
sentence. He cannot be heard upon any matter, except as Lo clearing his contempt.
[Lord Brougham:--Your argument proceeds upon the principle, that [98] when a
P.C. 1001.
* Present: The Lord President (Lord ~ ~ h a r ~ i c l i ~ e ) ~ Lord Wynford, Lord
Brougham, and the Right Hon. Dr. Lushington.
238
H A R ~ I ~ O ~ 0. HARRIXOX 11 8421 IV MOORE, 99
party is in contenipt, he must purge his contempt before he can be heard, as in the
Court of aiancery; that however is only in the came itself. The Judge of the Court
of Arches held that the contempt was waived by your own conduct.] That is, be
construed the proceeding upon the s ~ g n i ~ c ~ ~ i ~ as a waiver. A party in contempt is
incoiiipetent to appeal, Maranta (Praz, de c o r ~ ~ ~ ~ r ~ ~ a ~ i ~ , part 6, see. 19) Oughton’s
Ordo / U ~ & Q I Y - W Z (lib. 1, tit 303, $e inhibition). The principle thus laid down has been
acted upon in all instances where it has been brought in question. Thus in i lerbert
v. Ne1.ber.t ( 2 Phill. 430. S.C. Con. Rep. 263), a party in contempt for non-appear-
ance, was refused leave to appeal. F i f x g e i d d v. Fitcge7.ald ( 2 Lee’s Cases, 263) skoww
the course the Appellant should have pursued. The question there, was the admission
of an allegation by the husband, who was in contenipt and exconmunicated for not
paying a l i ~ ~ ~ o n y a d costs. In order to purge his contempt, he filed an affidavit 04
his inability to pay alinicliiy by reason, of poverty. The Court, as it appeared that
the contumacy was not voluntary, suspended the decreee against him. Nere the
Appellant offers no exculpatory affidavit to account for his contempt, but interposer
ail appeal before his contempt i3 pnrged.
The Queen’s Advocarc (Sir John Dodson) and Dr. Hitrding, for the Appellant,
xere lrot called upon to address their Lordships.
Lord Brougkam.-Their Lordahips think that the Feiitence of the learned Judge
of the Court below is well founded, nnd that the Appellant ought to be allowed t o
Appeal: [99] they think also, that the priiicipsl cause ought to he heard with as
little delay as possible, and for that purpose will advise Her Majesty to retain the
cause.
In accordance with this opinion, an order was niade retaining the cause, and an
absolute appearance haviiig been give11 for the ~ e s p o n d e n ~ , a inonition issued to the
Judge and Registrar of tlte c o ~ s i s t o i ~ i ~ l and Episcopal Court of London, to transmit
tlze proceedings heard before tlmu in the cause: and the Proctor for the App~llant
was assigned to bring in his libel in the cause of Appeal, on the 4th of July then next
ensuing.
The Appellant accordingly brought in an allegation on the day above mentioned,
wherein he traversed the fact of impotency, as alleged in the libel given in the
Court below by tlie ~esporident, and pleaded a medical inspection, the certificate
whereof he appended.
The Queen’s Advocate [Sir John Dodson] (July 6 ”) now moved for leave to bring
in this allegation and certificate. He admitted lie had nbo authority for the ad-
mission of suzh a certificate upon ELI* Appeal, but submitted that as i t was without
the mischief of the rule, that after publication you cannot plead that which you might
have done before the response, which was intended to prevent perjury, by allowing
witnesses to wait till after publication of the evidence, and which could not happen
in a case of personal inspection, it being i i ~ n i a t e r ~ a l whether such was rnade before
or [loo] after publication, but essential that it should take place before a sentence r3f
nullity could be pronounced. Ne cited, Greg. Dec. lib. 9, tit. 7 ; Sanchez, lib. 7 , disp.
100, et pcrssim; The Duchess of Kingston‘s Case (20 State Trials, 355) ; Sabell’s Case
( 2 Dyer, 179 (a); S tn fordv . .P.la?iyey (cited 4 Vin. Abr. 221) ; and Popizter on Marriage
and Divorce, 158, Ed. 1524.
Dr. Addams and A h . Hope, contra, insisted on the universal rule against the
adiiiissioii of evidence after Appeal in Ecclwiastical causes, and cited 2tloi~zs v.
#orr ts (not reported), and Dick v. Dick (not reported).
Their Lordships expressed their opinion, that the safest way was to proceed to
hear the cause upon the evidence taken in the Court below, and refused the appli-
cation.
July 9 j-.-The principal cause now came on to be argued upon the merits, and
the real question was, whether the Appellant having, as it appeared from the plead-
ings, adniit t~d the on-consunimation of the marriage, but denied his ina~)ility, the
evidence was sufficient, taking into oonsideration thnt tlze marriage had &,en
* Present : Lord Wpford, Lord Brougham,, Lord Campbell, Mr. Justice Erskine,
Sir Herbert> Jenner Fust, and the Right Hon. Dr. Lushington.
Jenner Fust.
2 , I 1: resent : Lord Brougham, Lord Campbell, Mr. Justice Erskine, and Sir Herbert
239
XV MOORE, 101 HARRISON v, HARRISON [ 18421
celebrated in 1826, and the parties cohabited and lived together as man and wife,
from that period to 1833, when a separation, by mutual consent, took place, and his
refusal, in the first instance, to undergo inspection as required and admonished
by the Court. There was a medical certificate of inspection of the wife, but [loll
though it inferred the fact, it did not state her to be vir90 infactu (the libel, pleadings
and proofs, are reported in 3 Curteis, p. IS}.
The Queen’s Advocate [Sir John Dodson] and Dr. Harding for the Appellant.--
There are two grounds of objection to this suit. First, there is nothing but the
confession of the parties, which will not satisfy the Canon; and secondly, there has
been no inspection of the husband, which is csseiitial, before such a sentence as is
prayed can be pronounced. The 105th Canon declares, that ‘I Forasmuch as matri-
xnoniai causes have been always reckoned and reputed among the weightiest, and
therefore require the greatest caution when they come to Ise handled in judgment,
especially in causes wherein matrinion~r, having been in the Church duly solemnized,
is required, upon any suggestion or protest wl~atsoever, to be dissolved o r annulled :
we do strictly charge and enjoin, thab in all proceedings to divorce and nullities of
matrimony, good circumpection and advice be used, and that the truth may (as far
as possible) be sifted out by the depositions of witnesses, and other lawful proofs and
evictions, and that credzt he ~ o t givepi to the sole cwnfe5sim of the p a 4 e s themselves,
however taken on oath either within or without court.” It is clear that according to
this Canon, the sole confession of the parties cannot be considered sufficient, that is
all that exists here, there is no extrinsic evidence, the answers and confession of the
litarty only amount t,o the admission of the party in court and o u t of courl. [Llord
Broughani.--The meaning of the Canon is, that the confession alone of one of the
parties is not [lo21 to be sufficient without other proofs. What shouId the other
proofs be? What should be the evidence of non-cons~~niation, if the Appellant
refuaes in the first instance to undergo inspection^ but having obtained a rtiedical
certificate of competence, which their Lordships refused to admit, he now thinks
thak an examination will not injure his case, nnd professes himself ready to submit
to it.] In ~~~~~~~s v. ~ L G ~ z ~ ~ ~ (2 Philf. Rep. 10) there T a s a certificate of irtspection,
hmides the confession of n o ~ i - c o n s u ~ ~ ~ ~ t i o n . If the vase is one of frigidity, there
must be R triennial cohabitation (Greg. Dm. 4, tit. 15 ; Sanchez, lib. 7, disp. 111), bhat
is, a niatrintonial cohabitation (Sanchez, lib. 7, De impedimentis ilfatrinmvii, disp.
108 ; Oughton, tit. 211, s. 7, de C;ZLGS~S ~ ~ ~ r ~ r n o n ~ ~ , ~ b u s ~ , and unless the Court is
satisfied that there has been a triennial cohabitation, it will not decree inspection,
Aleson v. Aleson (2 Lee’s Cases, 576). Thr length of time since the marriage i s also
a bar to the suit, Guest v. Guest ( 2 Bagg. Con. Rep. 323), U?OZLV v. B / - o ~ n (1 Hagg.
Dr. Addanis and Mr. Hope for the Respondents.-The intention of the 105th
Canon was t o prevent collusion (Anon. 2 Mod. Rep. 314); it cannot mean that the
coafession of the party is not sufficient, and that there must be inspection; for if
the wo~nan had been a widow previously, what evidence could there be of non-con-
suinmation, if the husband, as in this case, was contumelious, and refusod to obej-
the monition? In PolZard v. ~ ’ ~ b o ~ ~ n (1 Kagg. Eec. Rep. 725), the Court pronounced
in E1031 favour of the nullity of tila marriage without inspection of the husband ;
all it required was to be satisfied that there was no collusion hatwmn the parties.
impotentia ceria mag be pleaded generally (Sanchez, lib. 7, disp. 107, 103), and
proved by an attainable evidence (Sanchez, lib.7, disp. 109). Confessions are, therefore,
not only admissible, but often the only available evidence : The Countess of Essex’s
Case (2 State Trials, 785), Owen v. Owen (4 Hagg. Ecc. Rep. 261).
Ecc. Rep. 523) .
Lord Llrougham.-Their Lordships are of opinion that the Decree of nullity of
marriage pronounced by the Consist$ory Court ought to be affirmed. It has been in-
sisted by the Counsel for the Appellant, that the confession of l ion-consu~~nat~on is
not sufficient to satisfy the 105th Canon, and that there must be some extrinsic proof,
and for this purpose, proof by inspection i s said .to be essential. Their Lordships
give no opinion on this Gonstruc~io~ of the Canon; for if adminicu~ar proof is
requisite, they think that the circu~stance of the Appellant’s having taken a legal
opinion on the validity of the nzarriage, which he admits in his answer, coupled wit,h
the confession of non-consummation, and his refusal in the first instance to undergo
240
[;tM] os ~~~~~~ ~~U~ mE ~~~~~~~ ~~~ O F ~~~~~~~~~~-
The Rev. ~~~~~~~S SWEET E ~ ~ ~ ~ ~ ~ - ~ ~ ~ e ~ ~ ~ ~ ~ ~ ~~~~ ~~C~ ~o~~~
i V I A S T I N , - ~ e s i ~ # ? z ~ e ~ , ~ * [June 23 aiid 24, 18421.
A child baptised with water in the name of the Trinity, by a layman (a Wesleyan
Methodist) not authorised to administer the site of baptism. Held not to be
‘‘ uiibaptised ” witbirin the meaning of the rubric for the burial of the dead
in the C o m ~ o ~ ~ Prayer Rook, m ~ ~ ~ c o r ~ o r a t c d in o the ~ n i f o r ~ ~ ~ y Act, 13th
and 14th Car, If., e. 4.
A. c ~ e r ~ ? ~ ~ ~ ~ ~ of the Church of England having refused to perform. tho oBce of
~ i ~ ~ r ~ ~ i e ~ ~ t , after due notice of are death, of a p ~ ~ r ~ s l ~ i o ~ e r so b a ~ t ~ ~ e ~ ~ sus-
pended fro~n the ministry- for three months, under the 68th Cauon of l603.
~ o r i ~ ~ ~ ~ ~ ~ t ~ o ~ ~ of &e r ~ ~ ~ ~ ~ ~ s of tho ~ ~ ~ o n Prayer B oks of the years 1603 and.
The a d ~ ~ ~ ~ s s ~ ~ i of a witness that he i s a member of a re1igh.m sect “who hold a
certain principle as a body, which, i f acknowledged individually, would
aubjcct him to exconununication ipso facto, by the 12th canon of 1603. Held
insufficient to disable hiiu f m n giving evidence in the suit [4 Moo. P.C. 1201.
Alld
Q t m e ~ e . If e ~ e o ~ i r n ~ i ~ i i c a t ~ o n ipso fczcCa, (if no6 absolutely abolished by S t a t ~ ~ t e
53 Geo. XII., c. 127,) disables a party from beiiig a witness until &sohred.
This was %a Appeal fi-om the Arches Court of ~ ~ ~ t e ~ ~ u r y , in a sui$ o€ %he oftioa
of Judge, promot,ed by the ~ e s ~ o i i d e ~ ~ t , a ~ a r ~ s ~ ~ ~ o ~ ~ e r and ~ n ~ a b ~ ~ & ~ t of the parish
of Gedney, in the county and diocese of Lincoln, against the ~ p ~ e ~ ~ a n t , a minister
of the Church of ~ n ~ ~ a ~ ~ , and vic r of ~ e d ~ i e y ~ for reftrsing to bwy the corpse of
~ ~ ~ ~ ~ b e ~ h Ann Cliff, the infant d a ~ ~ ~ ~ ~ e ~ ~ of Thomas Clifi’ and Xarah his vife-
The ~ ~ o c ~ e ~ ~ n g s e o ~ ~ ~ ~ e ~ ~ e d in the Arches Court of Canterbury, by virtue of
€&ters of ~ e ~ ~ ~ ~ s t from the ~ ~ a ~ ~ c e ~ l o r of the diocese of Lincoln.
The c i r c ~ i ~ s ~ a ~ c e s of the case were pleaded in the articIes in t,he f o ~ ~ o ~ n ~
The first, three articles pleaded the incumbency of the Appellant, and Elis obliga-
tion as a priest or minister of the Church of England, t o observe the laws, canons,
rind ~ o ~ ~ ~ ~ t ~ ~ t ~ ~ ~ s ecclesiastical of this r e a h .
‘She pwrth article pleaded that by the 68th Cmon, entitled, ‘‘ ~ ~ n ~ s ~ e r ~ not, to
refuse to christen or bury,” it i s decreed, ordained and contained as follows:-
‘‘ No minister shaIl refuse or delay to cha‘isten any cbild, according TO the form of
t f ie book of ~ o n ~ ~ o ~ i Prayer, that i s b r o ~ ~ ~ ~ ~ up io tS&e church to hiin OB Sundays or
ho~ydars to be c ~ r ~ s t ~ e d ~ or io bury any corpse that i s brought to the church 01-
l.na~-lneP.