DECISIONS OF THE PROBATE, DIVORCE, AND ON APPEAL THEREFROM TO THE COURT OF APPEAL AND HOUSE OF LORDS. The statutory desertion arising under section 5 of the Matrimonial Causes Act, 1884, from non-compliance with a decree for restitution of conjugal rights has all the consequences of ordinary desertion for two years, and is therefore capable after its condonation of revival by subsequent adultery. Wife's petition for dissolution of marriage on the ground of the adultery of the husband, coupled with disobedience to a decree for restitution of conjugal rights, which disobedience the wife had since condoned. The marriage took place on July 17, 1894, and the only child of the marriage was born in 1895. On September 19, 1901, the husband left home as usual, ostensibly for the purpose of attending to his business, and did not return, but wrote to his wife a letter announcing that he was going abroad with a woman mentioned in VOL. 73.-P., D. & A. the letter, that he had made up his mind to leave his wife, and that nothing could. alter his decision. The husband persisting in this attitude despite the entreaties of his wife that he should return, the wife filed her petition for restitution of conjugal rights, and a decree was pronounced in the terms of the petition on February 4, 1902. The husband failed to comply with the decree, and the wife, in March, 1902, presented her petition to the Court for dissolution of marriage, charging her husband with adultery combined with the statutory desertion constituted by the non-compliance by the husband with the decree for restitution in the terms of section 5 of the Matrimonial Causes Act, 1884. Before, however, this petition of the wife for dissolution came on to be heard, the wife permitted her husband to resume cohabitation at his earnest solicitation and promise to give up his paramour, the wife thereby condoning both adultery and desertion. Shortly afterwards it came to the knowledge of the wife that her husband had again resumed the relations which he had promised to abandon, whereupon, after an angry scene, the husband finally quitted his home. The wife then presented in March, 1903, her present petition for dissolution, alleging the original desertion B PAINE v. PAINE, Div. constituted by the non-compliance of the husband with the decree for restitution, coupled with the renewed adultery of the husband since the condonation by the wife. Evidence having been given in support of the allegations in the petition, Priestley, K.C., and W. T. Barnard, for the wife. The question arising in this case is whether the desertion, being statutory merely and having been condoned, is capable of revival by the subsequent adultery. There is no question but that ordinary desertion for two years and upwards would be so revived-Blandford v. Blandford [1883]. The statutory desertion arising from non-compliance with a decree for restitution constituted by section 5 of the Matrimonial Causes Act, 1884, is on the same footing. In Bigwood v. Bigwood [1888] 2 Lord Hannen was "of opinion that section 5 of the Act of 1884 places the desertion which arises on a disobedience to a decree for restitution of conjugal rights on the same footing as desertion for two years with all its consequences." Amongst those consequences it is only logical to include capacity of revival by subsequent adultery. Le Bas, for the husband, took no part in the argument, and stated that he did not oppose the decree. GORELL BARNES, J.-I think that the subsequent adultery has the effect contended for, of reviving the statutory desertion which had been condoned. Solicitors-Norris & Norris, for petitioner; (1) 52 L. J. P. 17; 8 P. D. 19. Admiralty. THE CHALLENGE AND THE A tug towing another vessel is not necessarily exempt from the duty which rests on a steam vessel in a fog to stop her engines under article 16 of the Sea Regulations, 1897, and is to blame for not stopping so as to let the way run off her tow, when there is no difficulty in doing so, and when the circumstances are such as to require the greatest precaution. After a collision between a French vessel D. and a British vessel C., the C. proceeded to a Belgian port. The owners of the D., intending to bring an action in France against the owners of the C. in respect of the collision, took proceedings in Belgium to arrest the C. (as permitted by Belgian law) to answer the judgment which they might obtain in their action in France, and which might become enforceable in Belgium. The agents of the owners of the C., to prevent arrest, gave bail in the Belgian proceedings. Subsequently, the owners of the D. brought their intended action in France, and served notice of it upon the owners of the C. in the United Kingdom, but the owners of the C. did not appear, and judgment went against them by default. Then the owners of the D. took further proceedings in Belgium to obtain a decree to make the French judgment enforceable there. In these proceedings the owners of the C. appeared and opposed the making of the decree, which was nevertheless made, but without any enquiry by the Court into the merits of the collision:Held, that the conduct of the owners of the C. in the Belgian proceedings did not amount to a submission to the jurisdiction of the French Court, and that the rights of the parties in respect of the collision were not res judicata, so as to bar an action in this country by the owners of the C. against the owners of the D. in respect of the collision. THE CHALLENGE AND THE DUC D'AUMALE (No. 1), Adm. The plaintiffs were the Marychurch Steamship Co., the owners of the steamship Camrose; the defendants were the Elliott Steamtug Co., Lim., the owners of the tug Challenge, and La Compagnie Maritime Française, the owners of the sailing vessel Duc d'Aumale. The Camrose was a steamship of 2,565 tons gross register, and at the time of the collision was on a voyage from Ibrail to Antwerp with a cargo of grain. The Duc d'Aumale was a French four-masted barque of 2,297 tons gross register and was on a voyage from London to San Francisco via Cherbourg, in tow of the Challenge, a steamtug of 137 tons gross register, and with a part cargo on board. The collision occurred about 7 40 A.M. on June 22, 1902, in the English Channel between the Royal Sovereign Lightship and Dungeness. The weather at the time was very foggy. The plaintiffs' case was that the Camrose was on a Course of EAN. magnetic making from two to two and a-half knots an hour through the water with engines working dead slow, when a prolonged blast, followed by two short blasts of a steam whistle (which proved to be from the tug Challenge), was heard apparently about two points on the port bow and a good distance off. The engines were immediately stopped, and the whistle was sounded in reply. Shortly afterwards the helm was ordered to be ported, but before the order could be effectively carried out the whistle of the Challenge was again heard, apparently more ahead, and at the same time she came into sight between one and two ships' lengths off and about a point on the starboard bow. The engines of the Camrose were at once put full speed astern, and as the Duc d'Aumale came into sight between one and two ships' lengths off and about a point on the port bow of the Camrose, the helm was starboarded, but the Duc d'Aumale came across the bows of the Camrose and struck the starboard bow of the Camrose with her starboard side about amidships. The plaintiffs charged the defendants with not stopping the engines of the tug Challenge when the whistle of the Camrose was heard forward of the beam, and with breach of article 16 of the Regulations for Preventing Collisions at Sea, 1897.1 The plaintiffs also charged the defendants (inter alia) with proceeding at an excessive speed, with attempting to cross ahead, with improper starboarding, with not stopping and reversing, and with breach of articles 19, 22, and 23 of the above Regulations. The case of the defendants, the owners of the tug Challenge, was that the Challenge, with the Duc d'Aumale in tow and a scope of about eighty fathoms of hawser out, was proceeding on a course of W.S.W. magnetic and was making about two knots an hour through the water. In these circumstances the loom of the Camrose was seen from two to three points on the starboard bow and about two cables' length distant. The other defendants, the owners of the Duc d'Aumale, admitted that the whistle of the Camrose was heard on the starboard bow before she came in sight, and that the tug continued on her course. The two defendants charged the plaintiffs (inter alia) with proceeding at an excessive speed, with not stopping when the whistle of the Challenge was heard forward of the beam, with improper porting, and with not stopping and reversing. They also charged them with breach of articles 16, 22, and 23 of the Regulations for Preventing Collisions at Sea. After the collision the Duc d'Aumale was towed by the Challenge to Calais for repairs, and the Camrose subsequently proceeded to Antwerp. On June 25, 1902, the owners of the Duc d'Aumale, intending to bring an action in France against the owners of the Camrose in respect of the collision, instituted proceedings (called saisie conservatoire) in the Civil Tribunal at Antwerp to arrest the Camrose to answer the judgment which they might obtain in their action in France, and which might become enforceable in (1) Article 16: “ ... A steam vessel hearing, apparently forward of her beam, the fog-signal of a vessel, the position of which is not ascertained, shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over." mined the rights of the parties in respect of the collision. Laing, K.C., and Balloch, for the plaintiffs. Aspinall, K.C., and Lauriston Batten, for the defendants, the owners of the tug Challenge. Carver, K.C., and Noad, for the defendants, the owners of the Duc d'Aumale. 3 2 [The following cases were referred to on the question of the liability for the collision: The Merthyr [1898], The Lord Bangor [1895], and The Knarwater [1894].* The argument on the question of res judicata was taken after the first part of the judgment had been given holding the defendants to blame for the collision. The Delta [1876] 5 was then referred to.] THE CHALLENGE AND THE DUC D'AUMALE (No. 1), Adm. Belgium. To prevent the arrest, Ruys & Co., as agents of the owners of the Camrose, gave bail in the sum of 250,000 francs. Subsequently the owners of the Duc d'Aumale brought their intended action against the owners of the Camrose in the Tribunal of Commerce at Nantes, and served notice of it upon the owners of the Camrose in the United Kingdom. The owners of the Camrose did not appear, and on August 20, 1902, judgment was given against them by default. The judgment, in effect, held the owners of the Camrose responsible for the damage sustained by the Duc d'Aumale in the collision, and ordered an enquiry as to the amount thereof. The damages were eventually assessed, and judgment for the sum so found was given in favour of the owners of the Duc d'Aumale. On December 15, 1902, the owners of the Duc d'Aumale took further proceedings in the Civil Tribunal at Antwerp against the owners of the Camrose and their agents, Ruys & Co., to obtain a decree of exequatur to make the judgment of the Tribunal of Commerce at Nantes enforceable in Belgium. The owners of the Camrose appeared in the proceedings and opposed the making of the decree. The Court, however, held that the conditions necessary to make the decree of the French Court executory in Belgium had been complied with, and decreed, without enquiring into the merits of the collision, that Ruys & Co., being merely the agents of the owners of the Camrose, ought to be dismissed from the suit, and that the decision of the French Court was to have full force. The defendants now contended that the subject-matter of the present action was res judicata, and that the present plaintiffs, by giving bail to procure the release of their vessel at Antwerp and by defending the proceedings taken at Antwerp to make the French judgment executory in Belgium, had submitted to the jurisdiction of the French Court. On the other hand, the plaintiffs contended that they owed no allegiance to and had never submitted to the jurisdiction of the French Court, and that the proceedings at Antwerp were merely for the purpose of obtaining execution, and had not deter- GORELL BARNES, J.-This is a case of (2) 79 L. T. 676; 8 Asp. M.C. 475. (5) 45 L. J. P. 111; 1 P. D. 393. |