the representatives of the tenants in tail are to be paid by Mr. Plomley, Mr. Rogers, and Mr. Dixon. The representative of Mr. Rodd pays his own costs. On a subsequent day, it being mentioned that the representative of Mr. Rodd had been provided for in the body of the decree, and that consequently no alteration of the decree was necessary, the decree, therefore, will stand as it is. Decree accordingly. Solicitors for the Felton family and James Underwood: Cope & King. Solicitor for Messrs. Rogers & Dixon: L. F. Dixon. Solicitors for the Lisson family: Salter & Barker. 1887. Re UNDERWOOD ESTATE ACTS, IN THE MATTER OF FELTON'S PETITION. Faucett J. CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF NEW SOUTH WALES IN ITS Divorce and Matrimonial Jurisdiction, DURING THE YEAR 1887. DORN v. DORN AND NICHOLSON (1). Practice-Stay of proceedings-Costs of previous suit―Alimony-Parties. 1887. May 12. Where the respondent in a former suit has neglected to pay costs and alimony as ordered by the Court, the Court will not stay proceedings in a suit Manning, J. in which he is petitioner, on the ground that such costs and alimony have not been paid. Yetman v. Yetman (21 L.J. P. & M. 647) followed. THIS was an application by the respondent to stay proceedings on the ground that the costs of a previous suit for judicial separation and custody of the children, in which the present respondent, the wife, had been successful, had not been paid by the present petitioner. There had also been default in the payment of alimony by the petitioner, and he had been for a very long time imprisoned for contempt of Court in not paying the said alimony. Ralston in support of the application. The Court will refuse to hear Dorn until he has purged the contempt of which he has been guilty in not paying the alimony as ordered, or at any rate until he has paid the costs of the former suit. Though Nicholson was not strictly a party to that suit, yet the charge now made against him was fully gone into on that occasion by Dorn as a ground of defence, and as a ground for the custody of the children being given to him. He relies on the following authorities:-Browne on Divorce, p. 377; Divorce Amendment 1887. DORN v. DORN and NICHOLSON. Manning, J. June 2. Manning Act of 1885, s. 8; Peters v. Tilley (1); Jago v. Jago and Moriarty contra. It is only when the suit in which the costs have been incurred is the same suit which the party who has not paid those costs is desirous of prosecuting that the Court will interfere to stay proceedings. This is an entirely different suit to the one in which Dorn has not paid the costs. He refers to Yetman v. Yetman (9). Ralston in reply. SIR W. M. MANNING, J. I have examined very fully a mass of affidavits in this case and in the earlier case by the wife; and I refuse to stay proceedings in this suit. I quite concur in the decision in the case of Yetman v. Yetman; and in that case the facts were almost the same as those at present before me. The application must be dismissed with costs. Solicitor for respondent (applicant): Wilkinson. DORN v. DORN AND NICHOLSON (2). Practice Appearance under protest-Appeal on point of law pending-Pleadings not complete-Issues settled and mode of trial fixed. The Court will settle issues and fix the mode of trial, even where an appeal is pending against an order made in the suit, which appeal, if successful, would render the trial unnecessary, and though the pleadings in the suit are, at the time of making the application, not complete. Moriarty, for the petitioner, moved to settle issues and fix the mode of trial. Ralston opposed the motion on the following grounds:-(1) We have appeared under protest, and have not yet filed our answer; so the pleadings are not complete, and the motion is premature. (2) We are appealing from an order made in this (1) L.R. 11 P.D. 145. (4) 34 L.J. P. & M. 45. (6) 5 Moo. P.C. 252. (8) 22 W.R. 398. (9) 21 L.J. 647 suit on a point of law, and the Court will not proceed to try the facts of the case when a decision in our favour in the Court above would render the trial unnecessary and futile. He cites Wilson v. Church (10). Moriarty, in reply, cites In re Palmer's application (11). SIR W. MANNING, J., decided that he could settle the issues and fix the mode of trial, and ordered accordingly. Solicitor for petitioner: Dunn. Solicitor for respondent: Wilkinson. [NOTE.-The order appealed from will be found reported above.] 1887. DORN v. DORN and NICHOLSON. MCGARRY v. MCGARRY AND PIKE. Practice No answer filed by co-respondent—Right to strike jurors—Effect on nonappearance on question of damages. Where a co-respondent has not entered an appearance, or filed an answer, he is still entitled to strike jurors. The jury is bound to find some damages against a co-respondent who has not filed an answer to the petition, even though they find that the respondent has not committed adultery. Sly for the petitioner. Ralston for the respondant. THIS was a suit brought by the husband for dissolution of marriage on the ground of his wife's adultery with the corespondent. The respondent filed an answer denying the alleged adultery; but the co-respondent neither entered an appearance nor filed an answer. When the case was called on, his Honour directed him to be called outside the Court, and he, having been subpoenaed by the respondent as a witness, came into Court. Notwithstanding the fact that the co-respondent had not appeared to the suit, he was told by his Honour the Chief Justice that he was entitled to strike six jurors. Section 5 of the Matrimonial Causes Act Amendment Act (48 Vic. No. 3) provides for the summoning and striking of jurors in case of all parties appearing, but makes no provision to meet the case of any party or parties to the suit not appearing. (10) L.R. 12 Ch. D. 454. (11) L.R. 22 Ch. D. 88. May 31, Darley, C.J. |