4

in

The language of Lord Bowen Stanhope v. Stanhope [1886] shews that a petition to vary settlements is not a step in the suit for dissolution, but is further relief outside that suit.

It is merely an accident that the trial takes place in this division. The proceedings might have been taken in Chancery for directions as to the application of the trust funds-Burnaby v. Baillie [1889].5

[He also referred to Nottingham Union v. Tomkinson [1879], which was a bastardy case, where Grove, J., is reported to have said, at page 174 of the text, "My opinion is that the statute applies only to proceedings instituted on the ground of adultery in the Divorce Court."]

Rawlinson, K.C., and Willock, for the official solicitor.-When parties to suits were first made compellable or competent witnesses by the Law of Evidence Amendment Act, 1851 (14 & 15 Vict. c. 99), proceedings in the Ecclesiastical Courts or instituted in consequence of adultery were expressly excepted from the operation of the Act by section 4. By section 43 of the Divorce Act, 1857 (20 & 21 Vict. c. 85), it is provided that (though the

petitioner may be a competent witness) he or she shall not be bound to answer any question tending to shew him or her guilty of adultery.

By section 48 of the same Act, the common-law rules of evidence are imported into this Court. This was followed by section 3 of the Evidence Further Amendment Act, 1869, which should receive the widest construction of which the words of the section are capable. The section on the face of it applies not only to original suits, but to all matters subsidiary to them.

The petition to vary is entitled as in the suit and the co-respondent is liable for the costs which are costs of the petitioner in the original suit-Gill v. Gill [1863].7 The whole machinery of variation is subsidiary to the principal suit. It is submitted, therefore, that statute law expressly forbids the putting of the question to the witness.

But even apart from statute the rule of law is clear as expressed by Lord Bowen in Redfern v. Redfern [1891],8 that "It is one of the inveterate principles of English Law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture, or ecclesiastical censure. In these days, when the thunders of the Church have become less formidable, the rule, so far as it relates to ecclesiastical censure, seems to wear an archaic form; but adultery is a charge of such gravity as to render it not unnatural that we should find the doctrine still applicable to it-that 'no one is bound to criminate himself.""

[They also referred to Reg. v. Boyes [1861], Harvey v. Lovekin [1884],10 Spokes v. Grosvenor [1897],11 Brownsword v. Edwards [1751],12 Chetwynd v. Lindon [1752],13 and Harrison v. Southcote [1751].14] W. T. Barnard, in reply.-As to the

(7) 33 L. J. P. & M. 43; 3 Sw. & Tr. 359. (8) 60 L. J. P. 9, at p. 12; [1891] P. D 139, at p. 147.

(9) 30 L. J. Q.B. 301; 1 B. & S. 311. (10) 54 L. J. P. 1; 10 P. D. 122.

(11) 66 L. J. Q.B. 572; [1897] 2 Q.B. 124. (12) 2 Ves. sen. 243.

(13) 2 Ves. sen. 450.

(14) 1 Atk. 528.

EVANS v. EVANS AND BLYTH, Div.

general law of the case, and apart from statute, the cases relied upon on the other side of Redfern v. Redfern and Harvey v. Lovekin 10 are distinguishable.

10

Redfern v. Redfern decides that where there is a suit for dissolution no discovery will be ordered to prove adultery. Harvey v. Lovekin was a case of nullity in which it was decided that a party interrogated might object to answer interrogatories tending to shew that he was guilty of felony. The older cases referred to are generally on the point that discovery will not be ordered tending to incriminate; in Reg. v. Orton, referred to in Stephen's Digest of the Law of Evidence (6th ed.), under article 129, page 147, this very question was allowed in cross-examination.

Le Bas, for the wife, took no part in the argument.

June 21.-GORELL BARNES, J.-In this case the co-respondent in the divorce suit was called as a witness, and counsel for the husband proceeded to ask him questions tending to shew that he had been guilty of adultery. The co-respondent took the point that he thought he ought not to answer the question unless legally liable to do so. The question is a difficult one, and has been argued in support of the contention of the witness by the

counsel for the official solicitor. This he is not strictly entitled to do, because the privilege is that of the witness; the witness, however, has had the satisfaction of having counsel's assistance in the protection of his position.

I have now to determine whether he is liable to be asked or bound to answer such a question.

The first point to be decided is whether he is protected by section 3 of the Evidence Further Amendment Act, 1869. The first part of that section is a practical re-statement of the law repealed by section 1. The material portion of the section is as follows: "Provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery." According to my

view, the suggestion of the learned author of the text-book on evidence referred to in the course of the argument, supported as it is by the authority of Lord Hannen in M., otherwise D. v. D.,3 is correct, and the word "such" is to be read into the section. The further wording of the section, moreover, is, I think, consistent with this view. Therefore, if the matter is to be decided on that section alone, I think I must hold that the operation of the section is limited to proceedings in consequence of adultery, and the question resolves itself into this: Is this a proceeding instituted in consequence of adultery? This is a petition to vary a settlement. In the course of the proceedings on that petition a question has arisen whether the child in question is the child of the marriage, and the present issue has been directed on that point, and it is true that in the course of that issue the question of the admissibility of this evidence arises, but I think it arises not in a proceeding instituted in consequence of adultery, but in a petition for variation of settlements. The objection, of course, is that the petition to vary is part and parcel of the divorce proceedings. On the other hand, it is said that it is separate matter. Now it is true that the petition to vary would not be on foot unless a divorce had been obtained, but that does not make the petition to vary necessarily a proceeding in consequence of adultery. It is a separate proceeding on a separate petition. The jurisdiction depends upon section 5 of the Matrimonial Causes Act, 1859 (22 & 23 Vict. c. 61), which applies to suits for nullity as well as those for dissolution of marriage, shewing that the petition to vary is not a necessary consequence of adultery, as it might follow a nullity suit. That is the section which confers the jurisdiction to exercise the power, and the manner of its exercise appears from rules 95 to 103 and rule 204, according to which the application is to be by separate petition. Rule 103 specifically refers to the "final decree in the principal cause," shewing that the petition to vary is treated as separate matter. The language of Lord Bowen in the case of Stanhope v. Stanhope, referred to in

8

I have now dealt with the first two points as to the reading of the section and its effect, but Mr. Willock has further contended that, even apart from the section, general considerations of law forbids the putting of the question to the witness. Several cases, including Redfern v. Redfern, were referred to on this point, but there are two authorities at all events which I think are conclusive on this branch of the argument. One is that of Reg. v. Orton [1874], mentioned in the footnote to Stephen's Digest of the Law of Evidence (6th ed.), art. 129, p. 147, where a witness appears to have been ordered to answer this identical question in cross-examination.

The other is the very pertinent passage in the judgment of Chief Justice Cockburn, in Reg. v. Boyes, where he is reported to have said: "Further than this, we are of opinion that the danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things-not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. . . . The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to

justify the withholding of evidence essential to the ends of justice." Quite apart from my view as to the construction of the statute, I cannot see how it can be reasonably contended that there is anything more than, to use the language of Chief Justice Cockburn, "a mere imaginary possibility of danger" to the witness.

I think that my duty requires me to compel the co-respondent Blyth to answer the question which has been put to him.

The question having been then put to Blyth, and answered by him in the affirmative, and a body of other evidence having been given, counsel for the petitioner and the official solicitor addressed the Court on the evidence.

THE CHEAPSIDE, App.

of the Admiralty Registrar, who had struck out the counterclaim in the action.

The plaintiffs, who were foreigners resident abroad, were the owners, master, and crew of the. s.s. Oscar Dickson, and the defendants were the owners of the s.s. Cheapside and her freight. The action was brought to recover remuneration for salvage services alleged to have been rendered to the Cheapside in the river Petschora in Northern Russia. The plaintiffs alleged that while their vessel was piloting the Cheapside down the river and proceeding ahead of her to indicate the channel, the Cheapside went aground, and the Oscar Dickson towed her off. They further alleged that, owing to the accumulation of ice in the river, which had carried away many of the beacons, the navigation was rendered extremely difficult.

The defendants denied that any salvage services were rendered by the Oscar Dickson, and they alleged that the Cheapside went aground owing to the negligence of the Oscar Dickson in failing to guide the Cheapside through the proper channel. They further alleged that by two charterparties the owners of the Oscar Dickson were the charterers of the Cheapside, and owing to their delay in loading her she was late in attempting to cross the bar; and they counterclaimed damages against the owners of the Oscar Dickson for breach of the charterparties in detaining the Cheapside.

The plaintiffs applied to the Registrar to strike out the counterclaim upon the following grounds: first, that the Admiralty Division had no jurisdiction to entertain such a claim; and secondly, that, assuming there was jurisdiction to entertain it, it would embarrass and delay the fair trial of the action within Order XIX. rule 27 to allow the counterclaim to stand.

The Registrar, while of opinion that the Admiralty Division had jurisdiction to entertain the counterclaim, held that it would embarrass and delay the fair trial of the action if the counterclaim were allowed to stand, and he accordingly struck it out.

On appeal, Gorell Barnes, J., reversed

the order of the Registrar, and ordered
that the counterclaim should stand.
The plaintiffs appealed.

Dawson Miller, for the plaintiffs.-The action is an action in rem; the counterclaim is a claim in personam which cannot be entertained by the Admiralty Division. An action in rem cannot be converted into an action in personam-The Bowesfield [1884]. The case relied on before Gorell Barnes, J., of Griendtoveen v. Hamlyn [1892],2 had no bearing on the matter, as the sole question there was one of service. Secondly, even assuming the Admiralty Division has jurisdiction to entertain it, the counterclaim ought not to be tried in the action for salvage. The claim for salvage would be tried in the ordinary way by a Judge sitting with assessors, while the defendants would be entitled to have the counterclaim tried by a jury-Order XXXVI. rule 6. Great inconvenience will thus arise by having the same facts tried by two different tribunals. Such a counterclaim therefore cannot be conveniently disposed of in the pending action within the meaning of Order XIX. rule 3; and the Registrar was consequently right in striking it out under Order XIX. rule 27, as tending to embarrass or delay the fair trial of the action-The Germanic [1896].3

D. Stephens, for the defendants.-Since the Judicature Act, 1873, the old Admiralty Court has ceased to exist; the Admiralty Division is part of the High Court and has jurisdiction to entertain any claim. Such counterclaims-namely, those in personam-are frequently set up in actions in rem. As to the second point, there need be no difficulty about the trial of the action. The Judge can try the whole action with a jury; it is entirely within his discretion so to order, as the plaintiffs have no absolute right to have the salvage claim tried by a Judge sitting with assessors. The only doubt felt by Gorell Barnes, J., was whether the plaintiffs could be made liable by way of counterclaim, they being foreigners

(1) 51 L. T. 128; 5 Asp. M.C. 265.
(2) 8 Times L. R. 231.

(3) 65 L. J. P. 53; [1896] P. 84.

COLLINS, M.R.-This is an appeal from an order of Mr. Justice Gorell Barnes, who refused to strike out a counterclaim which he was asked to strike out on two grounds.

The action was brought by the owners, master, and crew of a pilot boat-the Oscar Dickson-who are foreigners resident out of the jurisdiction, for salvage services. The defendants put in a defence, and set up a counterclaim against the plaintiffs for delay on their part as charterers of the defendants' vessel in loading her. The counterclaim is in personam, not in rem.

For the plaintiffs it is said that this is an attempt to join by way of counterclaim an action in personam with an action in rem, and it is contended that the Court of Admiralty has no jurisdiction to do this. That point has been raised before, and it has been decided that the Judge of the Admiralty Division being a Judge of the High Court has jurisdiction to entertain such a counterclaim. It is a matter for the discretion of the Judge of the Admiralty Division, subject to the review of this Court, whether or not he will entertain it in the action in rem. In this case the Judge has felt himself at liberty to do justice between the parties by not dividing the two jurisdictions, and by allowing the claim and counterclaim to be tried together. As the defendants would not have been in a position to bring their counterclaim as a separate action because the plaintiffs are foreigners resident out of the jurisdiction, they desired to avail themselves of the fact that the plaintiffs have, by bringing this action, submitted to the jurisdiction, and it is perfectly clear that that was a proper course for the defendants to take. Accord

ingly the Judge, founding himself upon the case to which we have been referredGriendtoveen v. Hamlyn-and the opinion expressed therein by Lord Coleridge, and having jurisdiction to do so, considered himself abundantly justified in exercising his discretion by allowing the counterclaim to stand. There is not the difficulty here that there was in the case of The Germanic.3 There the legal standards would have been different in the action in rem from those in the action in personam; common-law standards being applied to one part of the case, and Admiralty standards to another. There was also the complication that a jury would be the mode of trial in one part of the case, and the ordinary Admiralty method in the other. The present case is entirely free from all this. No question of contributory negligence is here in question, as was the case in The Germanic, and the law to be applied is the same as to both parts of the case. Consequently the difficulty suggested as to a jury trying one part of the case and the Judge trying another part does not exist, because the defendants may ask the Judge to try the Admiralty cause of action with a jury. The Judge would have a discretion as to trying both parts of the case with a jury. In my opinion, the Judge has exercised his discretion quite properly. The appeal must be dismissed.

STIRLING, L.J.-I agree.

Appeal dismissed.

Solicitors-Trinder, Capron & Co., for plaintiffs; Holman, Birdwood & Co., for defendants.

[Reported by J. S. Henderson, Esq., Barrister-at-Law.