LAW REPORTS.

Dominion, Volume 1, Issue 273, 11 August 1908, Page 4

LAW REPORTS.

SUPREME COURT. IN DIVORCE. DISSOLUTION OF MARRIAGE. Tho only case heard at a sitting in Divorce, held by Mr. Justicc Chapman yesterday, was that of Stephen Johns, carpenter, Brooklyn (petitioner) v. ' Florence Johns (respondent) and William Wilson, barman, Wellington (co-rcsponclcnt).

Mr. Fair (of the offico of Messrs. Skerrett and Wylie), who appeared 011 behalf of th« petitioner, ,mentioned that tho statement! .of defence had been filed by both respondent ia-nd .co-respondent. Counsel on their behalf, had, however, intimated that it was not nou" intended to defend in'tho action.

Petitioner (sworn) stilted that 110 waa married to respondent on May 19, 1899. He received an anonymous letter in October, 1906, telling him of respondent and co-re-spondent being together on several occasions. Petitioner showed tho letter to his wife. Tho suspicions then aroused rrers confirmed in December of tho same year. When he went' home ono afternoon unexpectedly for a tool which ho required, he heard .voices inside. His wifo had informed him. during the lunch hour that she was goijig out for tho afternoon. Tho back door was locked and the blinds at the back of tho house were down —an unusual circumstance. Upon petitioner forcing tho door his wifo called out to tho co-respondent to go out by way of tho front door. Petitioner ran after the co-respondent, but his wife got in tho wajj and .no gave up the chaso after ho had gone 100 yards. In reply to a question respondent said to. him that h# could never prors anything against her. Petitioner went down to, the Te Aro Hotel to see Wilson, who denied everything. Respondent left home and had only returned on a few occasions when he was absent. Petitioner saw respondent and co-respondent together in Newtown Parle on December 28. Samuol Free, private inquiry agent, deposed that he served copies of tho citation on respondent and co-respondent, who wcro living together in Abel Smith Street as Mr. and Mrs. Wilson. Respondent said that she was Mrs. Wilson, but witness replied that that could not bo so, because she was not divorced from her husband. Subsequently she remarked that petitioner could nave had a divorce long beforo if Wilson had not been' absent from Wellington for a year. Wilson was, sho continued, tho cause of tho whole troublo and should bo brought into tho case. ! His Honour granted a decree nisi: to be mado absolute 111 threo months; with costs on the lowest scalo against tho co-respo'nd-oni. THE DIVORCE LAW. CLAIMS ON GROUND OF LUNACY. - I DIRECTIONS AS TO SERVICE. . IMPORTANT JUDGMENT. Mr. Justico Chapman delivered judgment yesterday with respect to tho cases of Stovens v. Stevens and Livingstone v. Livingstoneapplications for directions as- to (service. Tli# petitions in those cases were, kis Honour said, based on subscction 2 of scction 3 of tho Divorce and Matrimonial Causes Act Amendment Act 1907 which provided that a petitioner could claim a divorco "(f) On the groilnd that the respondent is a lunatic or person of unsound mind, and has beon confined as such in any asylum or other institution or ho-uso in accordance with tho provisions ,of tho Lunatics Act ISB2 for a period or periods of not less in the aggregate than ten years within. twelve years immediately preceding the filing of the petition, and that such respondent is unlikelv to recover from such lunacy or unsoundness of mind." The other causes of divorce in the principal and amending Acts all involved matrimonial offonces or offcnces interfering with the relation of , husband and wife. Thoro was a provision in tho .principal Act (section 26) imposing on the Registrar of tho Supremo Court the'duty of forwarding a copy of tho petition to the Solicitor-General. This was followed by a power (scction 27) givefi to the Attorney-General or the SolicitorGeneral to oppose tho divorce. It appeared to the Court that section 26 _ must bo regarded as directory as tho petitioner was not called upon to prove oomplianco with its provisions'and it was not marked out as a step in the cause. Scction 27' was primarily in-, tended to enable either of tho functionaries mentioned to exercise the offico exercised by the King's Proctor in England. To the power conferred by scction 27 there was now added by the amending Act (section 4)' tho duty stated ill tho following_ terms: "(2) When the ground of any-petition for dissolution of marriago is th.o lunaoy or unsoundness of mind of tlio respondent it shall be tho duty of the Solicitor-General to take on behalf of the respondent such steps in the mattor of the petition as ho may consider necessary in tho interests of tho respondent. ' . His Honour then said that the question which he was asked to decido was whether tho above provision was intended to supercode tho necessity for the appointment of a guardian ad litem. It was suggested that substituted sorvico would bo sufficient as the offico of guardian ad litem was rendered superfluous and was therefore superseded by tho new duty c?,st upon tho Solicitor-General. For several reasons tho Court did not think that that assumption could be safely made. If it were a matter of discretion it might be sufficient to order substituted service and cast upon the petitioner the duty of giving tho Solicitor-General express notice of tho nature of the case. His Honour thought, however, that tho question of. sorvico hero raised was a ouestion of law, and that tho jurisdiction of" the Court to entertain the suit depended upon the sufficiency of tho service and representation. It was obvious that, if the Court proceeded without jurisdiction, tho gravest consoqucnces might ensuo as tho legitimacy of persons born of the subsequent marriago of one of the parties might bo questioned. A serious doubt as to the power of. tho Court to dispense with tho appointment of a guardian ad litem ought, therefore, to be a sufficient ground for insisting 011 such ail appointment. Tho least 110 could say here was that ho had such a doubt.

There was, his Honour continued, no express provision in tho Act or rules for appointing a guardian ad litem in such a case, but the jurisdiction of the Court to do so was inherent in its constitution and the provisions of the code of civil procedure applied. Tile petitioner might have to effect personal service first, but that would not nor would an order for substituted service nor would service under Rule 42 dispense with tho necessity for an appearance by guardian ad litem. The substituted service was in such a case a first step upon which a Court would appoint a guardian. In conclusion, his Honour observed:—"Tho argument used here involves the suggestion that a guardian ad litem has no real functions or duties left him by the statute. Even this would not be a conclusivo argument, but I am by 110 means satisfied that it is sound. It would at least bo his duty to inform the Solicitor-General of any matters known to himself which might throw serious doubt on the case for tho petitioner. It may be that tho Legislature in a sense intended that nominal service should suffice, but as it has not said so, and as such a conclusion does not necessarily follow from tho languago used, I think that it would bo unsafe to dopart from the well established rule. As to tho mere procedure that has to bo worked out according to the divorce rules and the Code of Civil Procedure, it is necessary in tho first placo to servo the respondent in order to givo tho Court authority to appoint a guardian. There is no difficulty about this as section 42 applies. After this the njattor has to proceed under Rulo 70. Since ufriting tho above I have couferrod with the Sjolicitor-Gcneral oil the' subject of this judgment. • Mis view of his duties coincides with that which I have expressed. He also illfirms me that ho is willing, upon a proper application lining made, to accept the office of guardian ad litem if upon inquiries ho is satisfied that thoro is no other person rjasonably available and willing to accept the appointment, A somowhnt similar practice iippoaxff to prevail in' England.-

Mr. Luekie appeared on behalf of petitioner in the first-mentioned caso, and Mr. Findlay for petitioner in the other .case: