Administration-Practice-Presumption of Death of one of the Crew of a missing Ship.

A, master of the X, sailed in her from Demerara, on the 23rd of October 1858, bound for London, the ordinary duration of the voyage being five or six weeks. A few days after sailing, a hurricane passed over the West Indian Islands, in which it was supposed that the X. and all hands had been lost, neither the vessel nor any of the crew having been heard of since the vessel sailed. The underwriters on the vessel had arranged to pay the amount insured as upon a total loss. On affidavits of these facts, a motion made on the 30th of March 1859, for a grant of administration of the effects of A. was rejected, the Court holding that the application was premature, since, though the vessel might be lost, the crew might have been picked up by a vessel bound on so long a voyage, that tidings of them could not have been received in the period that had elapsed since the vessel was last heard of; and, further, that inquiries should have been made at Demerara for the crew; but on the 22nd of June 1859, the underwriters having then paid the amount insured on the vessel, and nothing having been heard of either her or any of the crew, administration was granted.

sailed thence in the Xarifa for London on the 23rd of October 1858; but neither the vessel, Henry Bishop, nor any of the crew had been since heard of. Some few days after the Xarifa had sailed from Demerara a hurricane had passed over some of the West Indian Islands, in which it was supposed that the vessel had been lost with all hands. The average duration of the voyage from Demerara to London is about five or six weeks.

The underwriters on the vessel were satisfied of her loss, and had arranged for payment of the amount insured.

On affidavits stating the above facts,

Swan (March 30) moved the Court to decree letters of administration of the effects of the deceased, as having died in or since the month of October 1858, to be granted to Emma Bishop, widow, the relict of the deceased.

SIR C. CRESSWELL.-The underwriters have not yet shewn their belief in the loss of the vessel by paying the amount for which she was insured. Independently of this, however, there are other objections to granting the motion. I think it is probable that the vessel is lost; but it does not appear that inquiries have been made at Demerara whether any of the crew have been heard of. I also think that the application has been made too soon, and that it would not be safe at present to grant letters of administration. Only five months have elapsed since the vessel sailed from Demerara; and though she may have been lost, the crew may have been picked up by some vessel bound on a long voyage, and there may have been no opportunity of tidings being received of them. I know of no case in which the Court, under similar circumstances, has granted administration so soon after the vessel was last heard of. At present, therefore, I must reject the motion.

Swan.-Will your Lordship name any time when the motion may be renewed? SIR C. CRESSWELL.-I cannot do that.

Xarifa, bound on a voyage to Barbadoes and Demerara, in the West Indies, and from thence back to London. He arrived at Demerara in September following, and

crew.

Motion rejected.

E. C. Clarkson (June 22) renewed the motion, on an affidavit, sworn on the 11th

Practice Costs-Mode of Reviewing Taxation-Costs before Suit-Attendances of Solicitor.

An order having been made, during the progress of a suit for judicial separation by a wife, that the petitioner's costs should be taxed, as against the respondent, the Registrar by his taxation disallowed, first, all charges incurred previously to the commencement of the suit; secondly, charges for attendances by the solicitor on the father of the petitioner, alleged to have been necessary in consequence of the illness of the petitioner: Held, that this taxation was right, inasmuch as by the practice of the Ecclesiastical Courts charges incurred before the commencement of the proceedings, and attendances of a proctor, unless on his client personally, were never allowed on taxation as between party and party.

The proper mode of reviewing a taxation of costs is by moving, as in the Common Law Courts, for a rule to shew cause why the taxation should not be reviewed, and not by act on petition.

This was an application to review the taxation of costs made in the course of a suit by the wife for a judicial separation.

On the 13th of February, pursuant to an order made before hearing, the registrar had taxed the petitioner's costs, disallowing (inter alia), first, all the items in the bill of costs incurred prior to the filing of the petition, amounting to about 30%.; and, secondly, the charges for several attendances by the petitioner's attorney on the

father of the petitioner and conferences with him, amounting to about 5l.

The affidavit of the clerk to the solicitors of the petitioner, in effect, stated, that before the petition was filed, in order to determine as to the steps to be taken, various witnesses had been examined, and their evidence laid before counsel, who advised that further evidence should be obtained before filing a petition; and that as nice questions were involved a case was submitted to counsel. The father of the petitioner also deposed, that in consequence of the indisposition of his daughter during the progress of the suit, he had, on various occasions, called on her solicitors, at her request, relative to matters connected with this suit.

SIR C. CRESSWELL.-The old mode in the Ecclesiastical Court of reviewing the Registrar's taxation was to proceed by act on petition,-a rather cumbersome and expensive mode of proceeding. For the future, I think the better course will be to follow the practice in the courts of common law, and grant a rule to shew cause why the taxation should not be reviewed. The affidavit on which the motion is made, should shew in what respect the taxation is objected to, and then the taxing Registrar can furnish a report before the rule comes on for argument.

As to the objections made to the taxation, the expenses preliminary to the commencement of the suit would not be allowed in a court of common law, and I think that rule should be followed, unless you can shew that they would have been allowed in the Ecclesiastical Courts. With respect to the attendances on the father of the petitioner, if the Registrar acted on the notion that attendances upon any other

person than the client could not be allowed under any circumstances, perhaps that might be worthy of consideration. You can take a rule generally, returnable on the next motion day.

Rule nisi.

Dr. Swabey, for the respondent, shewed cause (March 2).-The Registrar acted rightly in disallowing both classes of items. As to the first, neither at common law nor in the Ecclesiastical Courts are costs incurred prior to the commencement of proceedings taxed as between party and party. As to the second class of items, viz. the attendances, &c. of the solicitor on Mr. Weller, the Ecclesiastical Courts never allowed for attendances by the proctor on any one, except the party himself; and, apart from this rule, even if this were not so, for the most part the attendances charged for are quite unnecessary. Dr. Phillimore, in support of the rule. Cur, adv. vult.

SIR C. CRESSWELL.-This was an application to review a taxation of costs made during the progress of the suit. Two objections were made to the taxation. First, that the Registrar had improperly disallowed a number of items for charges in respect of certain steps taken by the petitioner preliminary to the filing of the petition. In doing so, he followed the practice of the Courts of common law and the Courts which this Court represents, and I must confirm his taxation. Secondly, that the registrar improperly struck out a number of items for attendances on Mr. Weller, the father of the petitioner. I find that it would be quite contrary to the practice of the Ecclesiastical Courts to allow for attendances by the solicitor or proctor on any one except the party himself, and I must, therefore, confirm the taxation as to those items also. From the aspect of the bill it would seem that Mr. Weller, taking a natural interest in his daughter's suit, looked into the attorney's office whenever he happened to be passing, and talked the matter over. The rule, therefore, must be discharged.

Rule discharged.

Dissolution of Marriage Separation without Reasonable Excuse-Clandestine Marriage-20 & 21 Vict. c. 85. s. 31.

A girl, sixteen years of age, left her home one morning, and without the consent or knowledge of any of her friends married a man aged thirty-six, with whom they were unacquainted. Immediately after the ceremony she returned home and informed her mother of the marriage. Inquiries having been made as to the character of the husband, it was found that he was not a suitable husband for her. Her friends accordingly immediately removed her to the Continent, where she remained some years. She never cohabited with her husband, and never saw him after the marriage, nor did he make any attempts to get her to live with him. The husband having subsequently been guilty of bigamy with adultery, the Court dissolved the marriage at the suit of the wifeholding, that, under the circumstances, there was reasonable excuse for the separation.

This was a petition, presented by Jane Catherine Du Terreaux, for dissolution of marriage, on the ground of the bigamy and adultery of her husband, Thomas Webb Du Terreaux.

The petition alleged that the marriage took place on the 15th of October 1853; that the petitioner never lived or cohabited with her husband, and that there had been no issue; that on the 24th of April 1858 the respondent committed bigamy by marrying Ann Butcher; and that since that date he had lived and cohabited with her as his wife, and had committed adultery with her.

The respondent did not enter an appear

ance.

The petition now came on for hearing on oral evidence (1), when the following facts appeared:-The petitioner was the daughter of a gentleman of considerable property, named Kennerley, who died in 1844. After his decease his widow married a physician, Dr. Brown. The respondent, an Englishman by birth, and by profession a teacher of the French language,

(1) Coram Wightman, J., Williams, J. and the Judge Ordinary.

was, in 1853, residing at Aberystwith, where the petitioner, with her mother and Dr. Brown, were then staying. The family of the petitioner had no acquaintance with the respondent. At seven o'clock on the morning of the 15th of October 1853, the petitioner, who was then sixteen and a half years old, left her home, as was supposed for the purpose of taking her usual morning walk, and, without the knowledge of any of her family, went alone with the respondent to the parish church of Llanbadern Faur, distant about a mile from Aberystwith, and was there married to him by licence. In the register, signed by the parties, the age of the respondent was stated to be thirty-six, that of the petitioner twenty-one. Immediately after the ceremony the petitioner returned home, and on arriving there between nine and ten o'clock in the morning she cried very much, and told her mother that she had been married to the respondent. Inquiries having been made as to the character of the respondent, he was not considered a suitable husband for the petitioner, and she was immediately sent by her friends to the Continent, where she remained for two or three years. After the marriage she never saw or had any communication with the respondent, who, on the 24th of April 1858 married Ann Butcher, with whom he had since lived as his wife.

The Court asked for the affidavit on which the marriage licence was obtained, but it was not in court.

Dr. Phillimore and Welsby for the petitioner.

Judgment:

WIGHTMAN, J.-The Court is of opinion that the petitioner is entitled to the relief prayed, bigamy and adultery having been proved. There is no doubt that being only sixteen years of age the petitioner married a man who appears to have been thirty-six at that time. There is also no doubt that, immediately after the marriage, she was separated from her husband by the interference of her friends, and had never cohabited with or seen him since. It also appeared that the respondent never made any attempt to procure the petitioner's living with him, or to prevail upon her friends to interfere in his behalf. By the 31st section of 20 & 21 Vict. c. 85. the Court has a discretionary power,

although the case of the petitioner has been proved, to refuse to dissolve the marriage, "if the petitioner shall in the opinion of the Court have been guilty of having deserted or wilfully separated himself or herself from the other party before the adultery complained of and without reasonable excuse." In this case it appears to the Court that there was reasonable excuse for the separation, for we cannot doubt that the petitioner was entrapped into the marriage. It would have been more satisfactory if we had seen the affidavit on which the licence was obtained. It may have been obtained on her oath; but even if that were so she may have made it under the influence of her husband. On the whole, even though this were to be considered as a case in which the Court was not bound to dissolve the marriage, but had a discretion as to doing so or not, we think that that discretion would be very reasonably exercised in favour of the petitioner. petitioner. The marriage, therefore, will be dissolved.

Dissolution of Marriage-Petition Dismissed-Husband Accessory to his Wife's Adultery-Connivance.

A wife having carried on an adulterous intercourse with the co-respondent from 1852 till January 1855, then left her home and went to reside in the house of the co-respondent, and subsequently lived with him as his wife. In February 1855 a deed of separation was entered intobetween the husband, his wife and the co-respondent, by which the husband covenanted with the co-respondent to permit his wife to live separate from him, as if she were unmarried, and to allow her a certain sum for her maintenance, and the co-respon dent covenanted that the wife should not molest her husband, that she should maintain a child to which she gave birth in 1853, and that he would indemnify the husband against her debts. The husband was aware of the adulterous intercourse, and he admitted, on being examined by the Court, that he had always believed that the co-respondent was the father of the child born in 1853. He had nevertheless allowed the co-respondent subsequently to its birth to visit at his house.

A petition being presented by the husband for a dissolution of marriage, was dismissed on the ground that the husband knew of the adulterous intercourse, and that the deed of separation was virtually an assignment by him of his wife to the co-respondent.

This was a petition, by George Walton, for dissolution of marriage on the ground of the adultery of his wife, Jane Frances Walton, with the co-respondent, Francis Hibell.

The petition stated that the marriage took place on the 2nd of May 1826, in Ireland; that the petitioner cohabited with his wife at various places until January 1855, when she left him; that there had been issue of the marriage twelve children, viz. six sons (the last of whom the petitioner believed to be the fruit of illicit intercourse with Francis Hibell the corespondent), and six daughters; that about the months of July and August 1852, and at other times between those months and NEW SERIES, XXVIII.-PROB. AND M.

the 22nd of March 1856, the respondent, at Birmingham, committed adultery with Hibell, and that she was then living in adultery with him.

February 1855, between George Walton That by a deed made on the 26th of (the petitioner) of the first part, Jane Frances Walton (the respondent) of the second part, and F. Hibell (the co-respondent) of the third part, after reciting that, differences having arisen between the petitioner and his wife, it had been agreed that they should live separate for the remainder of their joint lives, and that the petitioner, in consideration of the covenants thereinafter contained on the part of F. Hibell, for and on behalf of the respondent, should enter into the covenants thereinafter contained on his part, and that in consideration thereof F. Hibell should enter into the covenants thereinafter contained on his part, it was witnessed that, in pursuance of the said agreement, and in consideration of the covenants thereinafter contained on the part of F. Hibell, George Walton did covenant with F. Hibell, his executors, &c., that Jane Frances Walton might at all times thereafter live separate and apart from him, the said George Walton, as if she were sole and unmarried, and that she should be free from the power, &c. of the said George Walton, and should and might live and reside at such places as she should think proper, and should be at liberty to engage in trade or business and take the profits thereof for her own separate use, without the interference of the said George Walton; that the said George Walton would not molest her, or force any restitution of conjugal rights, &c.; that the said Jane Frances Walton might in all things live as if she were sole and unmarried; that the said George Walton would, on the 3rd of each month, cause to be paid to Jane Frances Walton, for her sole use, the sum of 21. And Francis Hibell covenanted with G. Walton that the said Jane Frances Walton should not molest her husband, &c.; that she should during her life maintain, clothe, educate and provide for Frank Walton, the youngest child of the said G. Walton and his wife; and that he, F. Hibell, would save harmless and indemnify G. Walton from and against