1885. WALLER บ. GIPPS. from doing anything against the interest of the company; but it asks that an account may be taken and the defendant declared a trustee for a company which is forbidden by law. It seems to me that this is precisely like the claim made in the Padstow Faucett J. Case (1), where an unregistered association sought to be wound up under one provision of an Act, which by another provision declared such an unregistered association to be illegal. This the Court refused to do. Here by asking for an account to be taken the plaintiffs are seeking the assistance of the Court in carrying out the objects of the company. The very transaction out of which the suit has arisen began while the defendants professed to be a company, and was executed by the defendant as an agent of the company, which at that time was an illegal one. The present seems to me quite a different case from Tennant v. Elliott (2), and others of that class, where money had been actually paid into the hands of a third party for the use of some one unconnected with the illegal contract. Here the objection arises on the face of the statement of claim, which shows that at the very inception of the transaction the plaintiffs were doing an illegal act, and carrying it out illegally. In spite of this they now seek to get the benefit of their illegal act. In my opinion they cannot do so, and therefore this appeal must be allowed, and the judgment of his Honour reversed. SIR G. INNES, J. I concur with the rest of the Court in thinking that this appeal must be allowed and the demurrer sustained. The point strikes me as amounting to this: Can an illegal association come into Equity and invoke the aid of the Court against its agent, who has committed a fraud in reference to the purposes of the company? It seems to me that there can be only one answer to that question. No case has been cited in which such a company has appeared as plaintiff. The difference between the present case and Butt v. Monteand (3) is clear, as his Honour the Chief Justice has said. Here the plaintiffs are seeking the aid of the Court; and they are admittedly wrong doers. The company could have registered, and ought to have been. (1) L.R. 20, Ch. D. 137. (2) 1 B. & P. 3. (3) 1 K. & J. 99. Innes J. 1885. WALLER บ. GIPPS. Innes J. They seem to me to be just as much out of Court as a married woman would have been before recent legislation. Under these circumstances, I feel constrained to give judgment for the defendant, although the present aspect of the case is most unsatisfactory. Appeal allowed and demurrer sustained with costs of the ap peal and in the Court below. Solicitors for the appellant: Norton & Co. Solicitors for the respondents: Want, Johnson & Co. Leave to intervene is only to be granted where it can be shown that the Windeyer, J. Crown Solicitor has good reason for suspecting that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case. ON the 12th of September 1884, a decree nisi was granted for a dissolution of marriage on the ground of the husband's adultery, desertion, and cruelty. Walker applied for leave to the Crown Solicitor to intervene, on affidavit by the respondent's solicitor stating that he had reason to believe that, on the marriage of the respondent to the petitioner, she had a husband living. WINDEYER, J.:-On the 12th day of September last a decree nisi was granted in this case for a dissolution of marriage on the ground of the adultery, desertion, and cruelty of the hushand, and an order was subsequently made for alimony pendente lite, the custody of the children being also given to the petitioner. An application is now made for leave for the Crown Solicitor to intervene, which is supported by an affidavit made by the respondent's solicitor, stating that the respondent is now, according to N.S.W.R., Vol. VI., P. & M. A 1885 DENT V. DENT. information received by him, in a position to prove that when he married the petitioner, supposing her to be a widow, she had, in point of fact, a husband living. The evidence which the affidavit states can be given in support of this suggestion is somewhat suspicious, and is not supported by any affidavit of the person who it is said can prove the fact of the death of the petitioner's first husband since her marriage with the respondent. When the case was tried no issue was raised by the respondent as to the validity of the marriage between the parties, which took place fifteen years ago, and this is evidently an attempt on the part of the respondent to re-open the case, which, as far as the parties are concerned, must be considered as closed, as it has been held in the cases of Stonte v. Stonte (1), and of Clements v. Clements (2), that they have no right to show cause against the decree being made absolute, whilst the latter case seems to show that the Court will not countenance their putting forward some one else to intervene in their behalf. The object of the provisions of the 28th section of the Matrimonial Causes Act was to enable the Court to receive information either from private persons outside the suit, or officially through the Queen's Proctor, which would prevent the Court being imposed upon by the parties before it. As the circumstances of this case entirely preclude the idea of collusion, and the affidavit by which the motion is supported does not suggest it, I must refuse an application for leave to intervene, which, I am of opinion, was only intended to be granted where it can be shown that the Crown Solicitor has good reason, in the words of the section, "for suspecting that any parties to the suit are, or have been, acting in collusion for the purpose of obtaining a divorce contrary to the justice of the case." I have had some doubts whether I should not make the respondent pay the costs of this application, as he evidently has put the Crown Solicitor in motion with the view of re-opening the case, but as this is the first occasion, I believe, where the right of the Crown Solicitor to intervene has been brought before the Court, I refrain from doing so. Solicitor: Williams, C. S. 30 L.J. P. & M. 255. (2) 33 L.J. P. & M. 74. Mar. 13. Misconduct and neglect conducing to wife's adultery—Condonation-Practice-Leave Feb. 25, 26. to be excused from naming a co-respondent-31 Vict. No. 9, 8. 23. The Divorce Court was established, not for the encouragement of the reckless and dissolute, but for the relief of the innocent and unfortunate. Where petitioner having seduced his wife before marriage, and lived with her in a public-house kept by him, and frequented by prostitutes and other disorderly characters, and, after leaving the public-house, habitually neglected her for a long time, and finally left her altogether for more than a year, without any means of support,-Held, that he had been guilty of such wilful neglect and misconduct as had conduced to the wife's adultery. Where the petitioner suspected that his wife was living as a prostitute, left her for fifteen months, and on his return, finding that she had taken out a warrant for his arrest for desertion, condoned her adultery without exacting any pledge from her as to her future conduct,-Held, that petitioner was guilty of misconduct and neglect, conducing to respondent's continued adultery. Application for leave to be excused from naming a co-respondent may be made at the hearing: Jeffers v. Jeffers (L.R. 2 P.D. 90) followed. THIS was a petition for divorce by the husband on the ground of his wife's adultery, alleging that she was a common prostitute. An answer was filed containing a counter-charge of adultery and allegations of cruelty, desertion, and condonation, and such wilful neglect or misconduct as conduced to the adultery. The issues were (1) Whether the said respondent committed adultery at any time between the 28th day of December, 1881, and the date of the filing of the petition herein, being the 17th day of September, 1884. (2) Whether the said petitioner, since the 28th day of December, 1881, committed adultery at divers times and occasions, and with divers persons, or with one Caffie Lizzie, or at all. (3) Whether the petitioner, since the 28th day of December, 1881, has been guilty of cruelty or such wilful neglect or misconduct as conduced to the adultery. (4) Whether the petitioner has condoned the adultery committed by the respondent (if any) since the 28th day of December last. Browning for the petitioner. On the day of hearing, the 3rd issue was allowed to be amended by the substitution of the words "since the marriage of the peti Windeyer J. |