butler against dolben call herself butler arch court Trinity term July that  the rd Henry c devolve upon the dean of the arch the power of accept letter of  request in matrimonial suit without the consent of the party proceed against  the dean of the arch be bind ex debt is owed the whole of the laws to receive  they letter of request offer by two ecclesiastical judge conjoint not invalid  on that account in a suit for jactitation of marriage bring by the father  under the marriage act in which the husband have appear under protest the  court refuse he leave to extend his protest see p ante and p post John butler  Esq as natural guardian to his son James butler a minor age about year of age  bring a suit in the arch by letter of request joint from dr Simpson chancellor  of lee London and dr bettesworth commissary of buck against Martha dolben call  herself butler for jactitation of marriage she appear to the citation under  protestation first for that the arch have no jurisdiction for the letter of  request be from two judge be illegal and unprecedented and the jurisdiction  can not be find without the consent of both plaintiff and defendant second  because Mr butler the father have no interest and can not bring this suit the  minor only who be the party interest can by a guardian lawful assign commence  a suit of jactitation of marriage dr collier for Martha dolben alias butler  this be a cause of jactitation of marriage bring by Mr butler the father to  annul the marriage of his son Mr butler jun court Martha dolben she consent  and they go abroad and be lee er p marry at Antwerp the that march they  consummate and live public abroad as husband and wife till the that march when  they return home his father then apply to the Lord chancellor who commit her  to the fleet prison for marry a ware of the court of chancery before her  marriage she live at Wexham in the county of Buckingham saint sess of this  term Mr Stevens proctor for butler allege that the husband be a minor of year  that his father be his natural guardian and that she have false boast and  assert that she be marry to the son and exhibit letter of request joint from  the chancellor of London and commissary of Buckingham the court then accept  the letter of request so far as by law they ought to be accept a citation  pursuant thereto go out and be lee serve on her in the fleet which be return  the d session the d session Mr Gostling say he shall appear for her but pray  time to obtain a special proxy the court grant it and on the that session  Gostling appear for her under protest and object that joint letter of request  from two judge be unprecedented and contrary to the statute of citation Henry  c and that the husband himself by a guardian proper assign ought to be the  plaintiff and therefore pray that the suit may be dismiss minor have always  appear by a guardian assign dr hay for John butler Esq father to James butler  the question now be mere preliminary in June Mr butler place his son a minor  with the Rev Mr Wray at Wexham in Buckinghamshire for education on the saint  February he be seduce away by Martha dolben and a relation of she Mr butler  desire to have a determination whether the marriage pretend to have be  celebrate at Antwerp be valid or not doubtful what jurisdiction she belong to  whether to the diocese of London by be in the fleet or to the commissaryship  of Buckinghamshire by have reside there before she go abroad the merit of the  case will arise upon the statute Geo for prevent clandestine marriage she make  two objection to the citation saint that the letter of request be improper dly  that the father can bring this suit I be Willing to take the question separate  and argue first upon the validity of the letter of request read the act of  court and her proxy toy Gostling lee by which he be authorize to protest upon  both point dr collier argument the question be whether this court have any  jurisdiction but upon appeal the validity of a matrimonial cause be to be try  a fact of marriage be admit upon that fact the chancery proceed this be a  personal action and therefore the person of the minor must be before the court  to give answer c clark say that in a jactitation cause instead of a  contestation of suit the defendant may plead we have no cause of marriage with  the father we each object to the suit be in the father name but by a quaerela  nullitatis and as this be not a appeal a quaerela can be bring in Herbert  against Hugh above p in the arch this term it be determine that after a appeal  from a gravamen be pronounce against the court can hold the cause but by  consent of party statute Henry c refer in this case to the civil and canon law  by the civil law this question be decide only in general term prorogati  jurisdiction be voluntary or necessary by law maranta part distinct prorogati  jurisdiction a mask ad mask must be with the consent of the party when judge  to have limitatam jurisdiction c we do not consent to this court actor  sequitur forum rei but by this method party in law suit sequitur forum drover  canon law can the consent of the diocesan be require to letter of request the  judge alone can consent without a mandate from his bishop Brossius de to be  able vicar the bishop in his court of audience have a concurrent jurisdiction  with his vicargeneral the jurisdiction of this court must be find lee by  consent both of the party and of the bishop h quo a judge can devolve his  jurisdiction Brossius lib who nu a judge can without special mandate from his  bishop devolve his jurisdiction to the metropolitan superior judge also can  take the cause without consent of the bishop a quo it do not appear that there  be letter of request because they be not under office seal her domicil be not  now at Wexham she be of the jurisdiction where her husband reside durance do  not make a domicil she be improper cite by the father dr hay for butler I  agree that durance do not create a domicil where the party do not consent the  court must determine the statute authorize the court to judge of the reason on  which letter of request be grant this be a new case lee er p arise upon the  late statute of marriage the doubtfulness of the jurisdiction be good ground  for receive the letter of request hob Jones v Jones reference from the  inferior judge to the superior hold to be a good ground of jurisdiction under  the statue of citation dr bettesworth same side the grant and receive letter  of request be discretionary the statute do not oblige the inferior judge to  take cognizance in Jones case hob Rep dr Talbot say the inferior judge be not  bind to give reason for devolve his jurisdiction hob f neither party can be  aggrieve by the court be accept letter of request judgement sir George lee I  be of opinion the jurisdiction of the court of arch be now entire settle by  statute r lee c that the arch be by that statute empower to take original  cognizance by virtue of letter of request of such cause as the civil and canon  law allow the inferior judge to devolve to the superior which be those that be  call arduous cause of which matrimonial be always esteem the chief that the  statute vest the power of devolve in the judge without mention consent either  of the bishop or party that in fact the bishop consent be never require and  that if the party consent have ever be deem necessary there hardly can be a  cause commence here by request for the defendant almost constant desire as  many opportunity of appeal as possible for delay as to the discretion of this  court whether it shall accept or refuse letter of request when grant by a  proper judge the delegate hold in the case of dr pelling against Whiston dr  pelling v Whiston in which cause the refusal of a citation in a libel of  heresy be hold to be a good ground of appeal to the delegate Com Rep Gib a  that the dean of the arch be bind to receive they ex debt is owed the whole of  the laws but that it be in the discretion of the inferior judge whether he  will grant they in this case the party appear under a protestation against the  citation fast because the request be irregular make joint by two judge and  second because the father have no interest to commence the suit the first  point only have be argue it be clear she must be subject either to the  jurisdiction where she last have a domicil or to that where she be local  present for to say she must follow the forum of her husband be beg the  question when the point in issue be whether she have a husband or not which  ever of the two judge have not the lee jurisdiction his act in join in the  request be mere void for he can not devolve a jurisdiction which he have not  and in this case I think she be subject to the jurisdiction of the chancellor  of London notwithstanding she be local present in that diocese by durance for  the statute say that no person shall be cite out of the diocese or peculiar  jurisdiction where the per on cite shall be inhabit and dwell at the time of  award or go forth of the citation or summons and therefore she be inhabit and  dwell in the fleet at the time the letter of request be grant and the citation  issue may have be cite by the chancellor of London and I think that  notwithstanding the durance she be citable where she be inhabit pursuant to  the statute and great will be the mischief if a person by be in custody be  privilege against be cite to do justice person often continue in prison for  debt for many year and have no other habitation it therefore pronounce for the  jurisdiction of the arch court by virtue of the joint letter of request as to  the other point the suit be bring by the father her proctor pray time to the  next term to extend his protest and to consult his client but that attempt be  plain to delay the cause and gain the long vacation and as it be one of the  objection to the citation upon which he be express authorize by his proxy to  protest I will not give further time and dr collier declare he be not ready  and can not then argue that point I reject that part also of the protestation  and order her proctor to appear absolute and admit the libel it be a common  libel of jactitation her proctor then protest of appeal from the whole decree  to the delegate