1903 RUTHER v. RUTHER. in the alternative, that it was the absolute duty of the Court of summary jurisdiction of Abergavenny to discharge the order, and by the indorsement on the order the Court must be taken to have done so, and that the order was therefore in law discharged, and that the stipendiary magistrate had no jurisdiction in the matter of the respondent's information in respect of arrears after December 4, 1901. For the respondent it was contended that the order was still in force. The magistrate held that the order had not been and could not be discharged without an order of the Abergavenny justices or of the Probate, Divorce, and Admiralty Division discharging it. The magistrate, therefore, committed the appellant to prison for one month unless the sum of 181. and costs should be sooner paid. The question for the opinion of the Court was whether this decision was right in law. (1) Rowsell (Warburton with him), for the respondent. There is a preliminary objection to the hearing of this case. It is a case stated by way of appeal from an order of a magistrate committing the appellant to prison for non-payment of arrears due under the original order. By s. 11 of the Act, 1895, the appeal should have been to the Probate Division: Manders v. Manders. (2) (1) Summary Jurisdiction (Married Women) Act, 1895 (58 & 59 Vict. c. 39), s. 6: "No orders shall be made under this Act on the application of a married woman if it shall be proved that such married woman has committed an act of adultery: Provided that the husband has not condoned, or connived at, or by his wilful neglect or misconduct conduced to such act of adultery." Sect. 7: "... If any married woman upon whose application an order shall have been made under this Act. . . . shall commit an act of adultery, such order shall upon proof thereof be discharged." Sect. 9: "The payment of any sum of money directed to be paid by any order under this Act may be enforced in the same manner as the payment of money is enforced under an order of affiliation." Sect. 11: "Save as is herein provided, an appeal shall lie from any order or the refusal of any order by a Court of summary jurisdiction under this Act to the Probate, Divorce, and Admiralty Division of the High Court of Justice." (2) [1897] 1 Q. B. 474. [LORD ALVERSTONE C.J. We will hear the case before giving our decision upon the preliminary objection.] S. G. Lushington, for the appellant. The magistrate had no power to commit the appellant to prison for non-payment of arrears. Sect. 7 of the Act enacts that, on proof of an act of adultery committed by the wife, an order made against the husband for weekly payments shall be discharged. Therefore an act of adultery on September 27, 1901, having been proved, the justices on December 4, 1901, had no jurisdiction but to discharge the order; and they must be deemed to have performed their duty and done so. The indorsement on the order that the appellant had conduced to the adultery is mere surplusage, because s. 7 does not contain any proviso as to the husband conducing to the adultery. The justices appear to have confused s. 7 with s. 6, in which there is a proviso to that effect. The word "shall" in s. 7 is imperative, and it is important to note that by the use of the word "shall" in s. 7 the Legislature has departed from the language used in the previous statutes dealing with this subject; in the Matrimonial Causes Act, 1878, s. 4, and the Married Women (Maintenance in Case of Desertion) Act, 1886, s. 1, the word is not "shall," but "may." [He referred to Haddon v. Haddon. (1)] As to the preliminary objection, the appeal is properly brought to this Court. It is not an appeal from an order under the Act of 1895, and therefore does not come within s. 11. The proceedings were by information of the respondent for the purpose of enforcing payment of arrears under an order made under the Act, but the procedure does not depend on the Act of 1895; it is by s. 9 to be the same as in the case of an affiliation order, and it is therefore governed by s. 4 of the Bastardy Laws Amendment Act, 1872. The magistrate issued his warrant for the apprehension of the appellant, and subsequently committed him to prison; but he made no order under the Act of 1895 or otherwise. When a defendant is committed for non-payment of sums due under an affiliation order, no order is made by the magistrate. Rowsell, for the respondent. The committal was right. The (1) (1887) 18 Q. B. D. 778. 1903 RUTHER v. RUTHER. 1903 RUTHER 2. RUTHER. order of November 16, 1898, has never been discharged, and the appellant is therefore still liable to make the weekly payments. Sect. 7 must be read as if the adultery therein referred to were to be subject to the qualifications enacted by s. 6; otherwise an order might be discharged for a reason which would not have prevented it from being obtained in the first instance. LORD ALVERSTONE C.J. With regard to the preliminary point, I am clearly of opinion that in the circumstances of this case an appeal by way of case stated lies to this Division of the High Court. The Act of 1895 provided a new and amended procedure for making orders for the maintenance of wives, and by s. 9 it is enacted that the payment of any sum of money directed to be paid by an order under the Act may be enforced in the same manner as the payment of money is enforced under an order of affiliation. The procedure for enforcing payment is, therefore, regulated by s. 4 of the Bastardy Laws Amendment Act, 1872, which empowers magistrates where an order for payment has not been obeyed, and no sufficient distress can be had, to commit the defendant to prison for any term not exceeding three months. For the respondent reliance is placed upon the case of Manders v. Manders (1), and it was argued that the appeal ought to be to the Probate Division; but Manders v. Manders (1) was a case of an appeal from an order on a husband for a weekly payment made under the Act of 1895, whereas in this case the appellant is not appealing against the original order, but from the warrant of the magistrate committing him to prison for non-payment which is issued under the Bastardy Act, and is not an order such as is referred to in s. 11 of the Act of 1895. It is, moreover, quite clear that if the question involved in this case had been raised by certiorari, there could have been no objection to the proceedings. For these reasons the preliminary objection fails. With regard to the substantial question raised by the case, it appears that in 1898 an order was made under s. 4 of the Act of 1895 for the payment by the appellant to the (1) [1897] 1 Q. B. 474. respondent of a weekly sum of 10s. In 1901 the appellant had got in arrears with his payments, and a sum of 551. was owing by him. He ascertained that the respondent had committed an act of adultery, and he applied to the justices that the order might be discharged in accordance with s. 7 of the Act. The justices found that the adultery was proved, and in my opinion it thereupon became their duty under s. 7 to discharge the order. What they did was to make an indorsement upon the order in the terms set out in the case. I do not know what was intended to be the effect of that indorsement. It may be that the reason of it was that the justices desired to make it clear that the wife's remedy was to be kept alive as to arrears of payments which had accrued due before that date. But however that may be, I am of opinion that after the adultery had been proved on December 4, 1901, the order ought to have been discharged, and from that date it ceased to be an effective order. The appellant was subsequently committed to prison for non-payment in respect of the period before the date of the adultery, and then the present proceedings in which a sum of 187. was claimed were instituted, and a committal order was made. The appellant offered to pay so much of that sum as represented the arrears up to December 4, 1901, the date of the adjudication as to the wife's adultery, and in my opinion he was not liable to pay anything after that date. The magistrate had therefore no power to send him to prison for non-payment of the 187., and the appeal must be allowed. WILLS J. I am of the same opinion. With regard to the preliminary objection the matter stands thus. Orders for payment made under the Act of 1895 are by s. 9 to be enforced in the same way as affiliation orders; and on looking at s. 4 of the Bastardy Laws Amendment Act, 1872, one sees what the procedure is. Therefore an order of committal for non-payment is not an order made under the Act of 1895, and is not one to which s. 11 of that Act applies. It stands on the same footing as an order of committal made in an ordinary affiliation case. That order is of course subject to the Summary 1903 RUTHER V. RUTHER. Lord Alverstone 1903 RUTHER v. RUTHER. Wills J. Jurisdiction Act, 1857, s. 2, and to the Summary Jurisdiction Act, 1879, s. 33, which give justices power to state a case after the determination of any information or complaint. These provisions are by s. 54 of the latter Act made specifically applicable to sums due on affiliation orders or on orders enforceable as affiliation orders. The magistrate therefore had jurisdiction to state this case. As to the main question, it is clear that there is no power to order committal for non-payment of the weekly sum after adultery on the part of the wife has been proved. I do not mean to say that the respondent was not entitled to recover arrears in respect of the period between the date when the adultery was committed and the date when the order ought to have been discharged; but the sum of 187., for the recovery of which these proceedings were instituted, covered more than that period, and the magistrate therefore had no power in the circumstances of this case to send the appellant to prison for non-payment of the sum of 181. If the case had come before the Court on application for certiorari, there can be no question but that the warrant of committal would have been quashed. CHANNELL J. I agree. The only point of substance which has been raised on behalf of the respondent is whether conduct by a husband which has conduced to his wife's adultery has the effect of preventing the husband from obtaining the discharge of an order in the same way as such conduct before an order prevents the husband from relying on the adultery as a reason why an order should not be made. In my opinion it is impossible to adopt Mr. Rowsell's construction of s. 7. The proviso in s. 6 cannot be read into s. 7. That being so, the appellant's liability to continue the payments ceased after the adultery had been proved. The other questions in the case are simply matters of form. Appeal allowed. Solicitors for appellant: Bell, Brodrick & Gray, for C. & W. Kenshole, Aberdare. Solicitors for respondent: H. A. Sims, for Powell & Hughes, Brynmawr. F. O. R. |