, 1874-06-04
THE MORDAUNT DIYORCE-CASE.
Whnt the NritiaEl Common Lnys
JulEcH Think OF II.


from the Nc,p York. SMn.
It Ia now little moro thnn tlvo yoara Bfnco Sir
Charles 1Iordaunt hled q petition IN the English
Divorce Court for a dissolution Of hia marriage
Vscount Cole and Sir Frederick Johnstono CO.
respondents Tho social standing Of the particB
Lady Mordannt being Blstcr Of the celebrat-
cd beauty, tho Countess Dudley and daughter OF
Prince Of Wales ,sas implicated IN tho scandal
gavo moro thRll 1tH1al prominence to tho case.
STR Thomas Aloncroi1fe appeared a8 guardian
I'D ]ite,n and filed m answer, alleging that his
daughter was not Of soltnd mind whom the cita-
ton was sorved upon her, aud that alo had never
since boon, ant wns not then, Of sound mind.
Tho question Of tho alleged insanity, which has
boon sot up as a bur to further proceedings, wns
tried before Lord Ponzanco and a jury i'll 1870,
and resulted in verdict that Indy Mordaunt
WAS Mt the commencement Of tho Blft and hud
since remained in such mental disorder a. to be
uuabio to give instructions for her defense. An
order was subsequently granted restraining fur
thor procccdnga until Lady hIorlaunt should
Chief Baron diuBentod from tho opinion. 7-
On the appeal from this order to the full
bench Of Tho Divorce Court it was sustained by
. majority Of tho Judges, tho Lord Chief Baron,
however, dissenting from tho opinion OF Lord
pcnzance md hlr. Justice Koating, and boing Of
opinion that the proceedings should bo stayed
only for limited tuo, nnless the respondent
should in tho mean time recover.
From this decision Sir Charles Alordaunt np-
poalod to the House Of ordB, and tho oasa was
Chelmsford, Hatherly, and ColonHay (sinca
dead), aud tho Common Law Judges, Chief
Baron Sir Fitzroy Kolley, Barons Martin and
Pollock, and justices heating, Brett, and Den
Law Lords put tie following question to lilo
Jnlgos: "Whethcr, uudor tho Act 20 aud IL
Victoria, proceedings for tho dissolution of
marriage can DO instituted or proceeded with,
other on beha!f or against a wife who, before
tho proceedings woro instituted, Inns booomo in
ourably lNnatio."
The Judges on May Is gave their answer to
this question. Mr.. Justice Brett Haid that WIS
admittol by both Hidos that the question depond-
cd solely upon tho construction Of tho statute !;
that, without ovarruiug tho olnnr viowB OF Sir
CroHwoil Croswoll and Lord ponzanco tho two
Judges most converaant with tho procedure Of
the Divorce Court nnd With tho statute, it wun
Impossible to sny that the procedure specified in
that act for Cases Of dissolution OF marriage vas
applicable to q oaso wllero the respondent was
iucurably htnatio; and that he thorofore m
Bwcrcd that proceedings for dissolution Of mar
riage in the gvon caso could not be proceeded
with. Afr. Justice keatiug took u similar view,
and thought that tho stay ought to be sustained,
rs the caso WA analogous to that Of q criminal
case where tho accused lH found nnablo to plead.
Lord Chief Baron Kelly, however. with whom
Afr. Justice Denninu and Baron Pollock concur
rcd, gave On elaborate opinion in favor Of re-
holding TINT the suit againat Lady Mordaunt
Gun bo proceeded with notwithstanding hor in
sanity. Tho hief Baron Baid TINT lo was not
aware Of any Bpocios Of Buit known to tho lnw
tho incidents OF which are to be determined by
itH analogy to criminal or civil proceedings that
tho caso was either d criminal prosecution or a
civil suit, and If it were the latter luuacy was no
bur ; aud that the stato OF tho law before the act
pnshed and tho provisions OF tho act itself
showed thnt tho petition in question was
purely d civil proceeding Az to the alleged
Injustice of a suit Of this nature against one
TINT tho evils Which will result from q decision
either way woro great aud manifold. II tho Pc
tition woro dismissed tho potitioner might find
himself. without any fault OF his own, bound to
an nnfaithful wife the tost OF his litq, compelled
by law to malntaiu hor suitably. Liable to tho risk
Ills wifo'B claim to dowor, and himself precludol
from marrying anothor woman. On tho 9th OF
hand, IT petitioner be permitted to procGad, the
consoquoncos may be scarcaly less calamitollB to
the vile, 1t mny bo ap Innocent sifo, III u caHe
Which she alone lnay bo ablo to explain. But
poliency or principle, or oven Of Justice, but
exclusively one OF tho construction OF tho aot oi
parla,nent aild without ntorpoiating or inaert.
| Ing important words In tho alatrto-which the
| court had no power to do-tho petition coull
! not be dismissed.
Tile ultimate iooinion of this interesting oueA.
tton will bo rendered by tho law Lords, but it IL
probable that thu opinion Of tho Chief Baron,
which IL that Of tho Inn 1orltY of tho common Inv
Judges, will bo followed. III that eyont tllt
| oause will 10 rcm!ttcd to tho court bolow, whore
| ii will bo trlod OIL ita norita.
| Tho pnint involved III to what provision
should 10 1nado Tor caseB where either pnrty ha.
| beGnlno iMsano IL ono of groAt importance, ant
Inc discussion Ut it wltl doubtloHH load to exprost
| legislation OIL tue sublact,