The Sun. — London, England, 1819-07-17 00:00:00

, . LAW INTELLIGENCE. COURT OF KING'S BENCH, JULY IG. Sittings , after Trinity I'ei•m before the Lord Chief Justice and a Common Jlll.l/. ASSAULT. ERODES V. LEECH. This was an action for an assault, committed -by t'•c defendant on the person of the plaintiff, on hoar') the East India Company's ship the Or well. The defendant pleaded, first, that he was V ; and, secoadiy, that the assault was connoitied in the ordinary course of ronislitnent, by reason of the mutinous, disorderly, insolent, and ithproper conduct of the plaintiff, and of 10 neglect of duty on board the said ship,'Of Which the defendant was Captain. The plaiutiff, replied„: 'bat he had not acted in the manner imputed to bins, and thereopoo issue . svas joined. • :t_fatst.t , :iT stated the case to the Jury. He that . the 1%1411114 had beea a midshipman iu v's Spin ire, and was highly connected hr birth inircninvxfons : but in conseqmnice of: the peare, I e'was an sinus to employ his time to -advairtage; and accordinglylte• engaged as grin• Per's - mate on hoard the Orwill. 'fi=at ship sail ed o China aud hack under the command of - the fetidant.:•. Duriog the -homeward voyage,: the sloth of provisions became ex tau and at la at 11 °'Iritlg Is:Maim:al for the crew hin rice and pease. When, tbc ship arrived its Margate-roads, the „plaits : tiff •wished, to clean sonic ot, the gnus ; the men complained of weakness, owing to the want of ',weer and sufficient,,fmid,„ ,and ,the plaintiff himself ' then eudeavoured to go on with the work,i hut was unable to do so. 11- , .k told the mate (not 4neaning,:however, that it shunts :be commoni 'eater/ rn the Captaii,), that tiie species of food 'which he-bad had for sevvraidaYS' had reduced his, strength so much, that he could . not - move efie guns. The Cantairpcame on deck,-charged biml with mutiny, anal made. preparations for flogging wheh the plaintiff, preferring a watery grave to such ignominious punishment, jumped over bo.lri. The Captain, instead of feeling remope for this occurrence, expressed a savage plea:gnre, 'at the fee of theplaintiff, and when some of the ;Crew wished to save:him by putting the boat out, he saill;‘‘ Olt, damn him, let bids go!" A Deal Boat, howcver, took him up,,and brought hint to the side of the ship, when the captain ordered him to be dragged tip by a rope, and desired the boatswain to flog him. Eighteen lashes were inflicted upon him, tvhile the Captain stood by, and desired the officer not to spare The Learned Counsel said, that he should prove this : case to the satisfaction of the Jury,, and should then leave then: to award inch_ damages to the ISlaintiff es the injury required. FraMis Hallson, gunner of the Orwell, deposed, that Captain Leech, the dCesidant, was tier Com islander on"tbe la,t voyage. On the 4th of May last; they tette off Margate. The plaintiff and sonic of the men had been employed about the guns. Witness saw the Captain on the deck in a sage; he saw him strike the plaintiff, and then beard him order him on . the poop. The first mate Was-on the qoarter-deck at that time. The Cap tain desired the boatswain to turn the hands up. When they came on deck, it was understood that the plaintiff was to be flogged. An alarm was then given that he was overboard. A Deal boat picked him up, and brought him alongside. He could nor get tip, and the defendant - ordered burn to be hauled op by a rope's end. He, was Cold bpd complained to the Captain that ' Lie was not Well, 'Lie Captain said'he would make tin example of him. He had said that he was too weak lb - level the guns, as be'had not had a suffi cient quantity of victuals. The Captain ordered him to strip ; and if he could- nor strip, the Mas her. was desired to cut his clothes! off. He was ;tripped, and.received eighteen lashes from the boatswain. The Captain stood by at the time, and said.!` You have got a rascal there; do your quiy:" Witness did not know that plaintiff had be , ,-,n n Midshiparan before ; but I Jac always ob. s i erved that his conduct was very obedient and proper. There had been a short allowance for :a fntnight or three weeks before ; they lived on ;ire it'd peas, having no bread or meat. Field; servant to the • surgeon of the ship, Was below when th.e hands were ordered up for punishment. When he got up, plaintiff was no the poop, and' the Captain on the quarter-deck. Ide heard him order the Masterat-Arras to bring the plaintiff on the deck : be said be•would make an example of him to the ship's company for hay. ing complained of being kept on 'peas and rite; 're plaintiff 'then jumped overboard. Some one' oried.out," Lower the boat." The Captain said,' '1 Never mind him ; damn helm, let bins swim." The -Deal boat took him up. He was stripped aitd flogged. The ship was on' short allowance,' Six barrels-of beef and pork•were taken out in China. • Peter Tierney, a seaman, saw the Captain When lie ordered thee plaintiff to be brought tip. The Captain said a word or two, did nor hearwhat • they trete, andthe Captain then struck him on the face, And ordered' him on the pOop. ile jnmped ceverboard. Witness and others were going to lower the•boat, when' !lie Captain said, " Never wind; let him swim, it will do him :good." Two men in a little bOat picked -him tip. He was stripped and flogged. lhey'lad had a short al )(mance ,for ttvo or - three weeks. 4ver'y 'Man on board complained of weakness. Jahn - Probee was the arrhottrer of the ship ; lie crinfirmed the former statement . of facts, and, in addition deposed, t hat the Captain, speaking of the Deal boat, said, " I had rather have given 1001. than that that boat should have been - there." . Henry Earl, surgeon, in Beritees-street,-ox fords-treet, examined plaintiff's back after his ar rival 'in LOndon. It was in a state of consider. aide iellarnmettiop, and there were lour .places svliere the skin bad perished. The marks remained toethis afier;•anet Would remain.' •• the plaintiff, deposed, 41).0.11(1_0n was a Midshipman., and by birth, edoeinien, and connexions, a gentleman. , Wr? - itilAilayA`e; -for the derend4rti, said, that it I • 4 'llo:lllans'itticomin n to • dnish man tart moard a iving's ship %%liken noseon ducted himself. Ile was himself related to son:- wed tai persons in tile: Nary, and he haci heard one of them (now a Commander) say, that he rement, here(' with great satisfaction that he had been flogged, when young, for improper behaviour. — The Captain was placed in an arduous and difficult situation ; he found it necessary, at such a mo ment, to' cheek. insubordination, and the punish ment which the plaintiff received.was.not nutlet' , lady severe, nor more than the offence in, question merited. The following witnesses were then called : Mr. Cousins, first mate, said that. the ship was ,313 tons burden : it was a large China ship ; the crew consisted of 136 men, including officers. Witness ordered the plaintiff to draw the guns, to take eight hands, .end be • quick about it; as the pilot wished to . get the ship under way. The order was only-in part performed ; it could have been done in three hours and a half. Witness asked vt by the whole of:the guns were not drawn ? He ssid they were all drawonnt four. Witness 'then said, " I can spare plenty of hands." He replied, 0, - 1 can't do it.. 1 have been starved on board this d---d ship :71 have been fed upon pea-gravy : 1 am too weak to do it." This was insolently spoken. Witness informed the Captain of what had pasted. AVlten the Captain came, the plain- . tiff's deportment was very improper--it teas a kind of bravado, The Captain said, " What do you mean by pea-gravy ? have I not lowered the boat,fur provi,ions ? Y=3tt ought to,stt a .gpoil ex anqile, and not abuse an officer." Witness did not observe the Captain st ike him, but lizsrd him order hitn on the Pimp. The Captain then ordered all hands ercW . assem'oli-d. The plaintiff jumped overboari. Witnes war.; about to dower a boat, but one of the ()liners fur.val d called out There is a boat off, Sir.'," ‘Vitness then. ox dered them to " hold fast, and not to lower the ship's boat. 7 Plaintiff* tsar I)rouglit on boaid and flogged ;" he received eighteen lashes; it was not particularly severe ; all the crew were round to see it. In the'Lin6vaid:hound passage, the Voiio tiff's conduct was very bad ; a man of the name of Martin was punished ; there Was aslight in subordination, and the Irlai:loff joined the disaf fected. On the morning in, question a boat bad been sent ;for provisions ; the voy4ge' had been about four weeks lon:Jer Oran usual. Thomas Welsh was fourth officer on board the ship. The .plisintiff proceeded to draw the guns in a most .dilatory manlier. Never understood that he was in bad health ; his appearance did not exhibit any symptom of declining strength. Saw. . plaintiff speaking to the Mate ; did not hear what passed ; but the plaintiff appeared to have been speaking to him in a mild manner. 'Was present the day alter the flogging, when the plaintiff ap plietito the surgeon for something for his back. The surgeon said, he,did not• titink that the flog gin was such as to require him to be on the sick list ; and it Would have a bad 'appearance if lie were on that list when there was no injury.. The plaintiff said he did not cake for the flogging, but he . conceived that he had strained his back by jumping from the poop .over hoard. When there was a mutiny on board the ship, witness saw the plaintiff go among the dis affected. Witness had the custody of the stores on bowd the ship : the passage was very tedious. They had frequent supplies front other ships on their voyage, but a told wind kept them ar sea longer than they expected. Capt. Leech killed his Chinese pit's tor the ship's crew ; some of them weighed front 30 to 40th : they were boiledip the soup. There was not above one day thaLihe ship was without salt provisitins., Orinther, surgeon of the ship, deposed, ihat the 'plaintiff Came to him, and asked him to look at his back. Witness had seen him punished, and said, " Su'relv you don't meat' that the flog ging makes it uceessary for you to apply to me," He replied,'" No ; it is on account of having sprained my back in jumping overboard." Wit ness then gave him something to apply to it. The Second Uffiver of the ship deposed, that he lived at the Captain's table. He begged to de cline''anSwering the question whether there was a short allowance at his table for any time ; but be ing told that .be lutist answer that question, he said, that there had been a short allowance for four or five days. The voyage was very tedious. Mr. SCitRLEfT then replied, and The LORD cHIRF JUSTICE summed up the case to, the Jury, Ile told them, that the only (Ines tiOu for their' consideration was, whether the ; plaintiff had been guilty .of nutritious, tlis ordci•ly, and improper conduct, and of neglect of dirty, so as to justify the defendant in in... flitting punishment upon him. The miscon duct of the plaintiff on the outward-pas loge was irrelevant. Whatever punishment took place on the 4th of May could be justified only by misconduct on.that day. If they thought that the 'plaintiff, under all the circumstances of weakness, arising from the want of food, had done his best to 4iselnarge his Ahoy, and hail not been enilty of disorderly conduct, then the defendant could not be justified, and their verdict would be for the plaintiff. Vie amount of • the damages was peculiarly for their consideration ; but he had always said, and now repeat, that in cases of this nature damages should be estimated with, temper and moderation. The Jury withdrew for about half an hour, and then i'eturned with a Tcrilict for, the Plaintiff— Damages, 500/. CONSISTORY COURT, Jo LI , IG. AD.ULTERY. • PROCTOR V. PROCTOR. Sir IVILLIAM SCOTT gave his judgment on this eanse to•day. The parties (be observed) to this suit were husband and wife, and were married in September, 1810. 't he marriage was proved in the usual form, as well as their subsequent coha bitation, at Thorley, its Hertfordshire, and at Mardo,k's•hall, in the same county, the seat of Mr. Proctor. and in other places ; in all of which they mutually recognized each other as husband and wife, and were so received and accounted by their foictuls"lind acquaintances. There appeared to have been no issue of this marriage, in conse• quenee Of the repeated Miscarriages of Mr;. Proc tor. In the n o of August," 1814, Prticrot casried. his 1 . :4(.1i; to the'Conrinent, lie beifig-at tended' hy H , Vtilet, named. Charles BaC t illefy;:a . nd She by-her servant Doi why Marks. After vi4ing iu succession Paris, Florence, and Rome, they ar rivet) at Xreplei on the loth N r ov., where they re mained till the 23d •of March, 1815 ; and heie they became treqesdinted with Temple French, Esq. But on the 28th of March they arrived again at Rome, and there, they lived in a house situated on the Corso. • In Rome they were in:l-Armed to Charles Standish, Esq., an English Gentleman of large fortune, between whom and Mrs. Proctor an adulterousintercoursetOok place, which was known to the servants of this family, but which was un e known to the husband till the month of February. 1816,when he first received notice of her infidelity;- in consequence of whielt he brought an act ion' at common Jaw against Mr. Standish (in the Court of King's Bench), and recovered, in May 1817, 5001. damages,. It appeared that while they re sided at Rome, it was thecustom of Mr. Proctor not to retire for the night till his lady sent her servant to inform him that she was in bed ; and that it was also his habit to rise early in the morning, and go immediately into his dressing room, By the connivance of Dorothy Marks, Mr. Standish was admitted, at sech times, into the bed-room, where those scenes of infidelity took place between him and Mrs. Proctor which' were tee subjects of the present suit. But it was further proved in evidence, that on many occ:1- .;ions (while the parties so lived in Route) it oc curred, that when Mr. and Mrs. Proctor were sit ting together in the drawing-room, Mrs. Proctor evits'often' called out of the apartment, leavit u her hosbent! remaining there. by Marks, who was accustomed to say that she was counted by her shoemaker or by the milliner, but which pretences were made wee of in order to permit Mrs. Proc tor's adjourning to Marks's room, where the ser yaw, having admhted him-into the house, n'sett • o secrete Mr. Standish, anl where the illicit inter course of the parties was charged to have been frequently repeated. In one instance, alter Mr. Standish had quitted the !loess, Marks found his VlT;t*.efl uphn'the table in her room, and carried it ro Mrs. Proctor, wlso appeared much coutused, Ahd Marks took that opportunity of cedeeVoeuing to persuade her reistress to break off her adulte rous connexion with hits ; hut she replied oily by protesting her vehement affection for him. hone dietely upon the circumstances coming to the ears of Mr. Proctor, which happened by Standish's publicly mentioning his familiar intimacy with Mrs. Proctor, the former of those gentlemen adopted the legal steps already noticed. It was in the same capital that Mr. French visited them, and in consequence of their former society at Naples, proffered his company to them on their iotendcd journey, which offer was accepted.-- They travelled from Rome to Padua, Florence, Peologrea, and Vienna ; and afterwards to Milan, Schautihausen, Frankfort, and finally to Brussels. During-this triur an'adulterous intercourse appeals to have been formed'hetWeen the same lady and M. French, and carried on, on his part, with great adroitness and secrecy. it was his custom always to travel on before them to the various stages, in order to inspect and hire the rooms at the different inns or hotels at which they were to stop, taking care that his .own bed-room elioddic if possible, adjoin theirs. Having accomplished this point, his next care was to bore holes with a gimlet, through the partition, by Which means he was eoa bled to ascertain when Mr. Proctor went out ()Oils room, and avail himself of these opportunities to go in. At Padua, he was observed coming rint one day of Mrs. Proetor's bed-chamber, when bier hus b an d was not in the house. At Schaffiratesen Mr. French's valet, one Lanterre, a Frenchman, was brushing his master's coat, %viten a vote fell out o f tire pocket, which he, net being able to see d English, carried to Mails. It was directed to French in Mrs. Proctor's hand•wrhing, end ran thus :-e" My dear love, for God's sake be more careful, for Marks, who has just left use, has noticed the holes in the door." At Frankfort Mr. Proctoebeeame very ill, and as he was sitting a l one , his valet Bacillery first suggested to him, I Ql re e n e c v b e ;" was e as suspicions g surpri s ed '(u i e 'fhs w ) at i t i l t t e e telligence, 'but could obtain no positive evi dence, amounting to proof of the adel•cry.— He determined, however, to part Whh his travelling companion, and on getting to Brossels requested Mr, Fieneh would desist from :teem paoying them : some disagreethent ensued, and t hat gentleman quitted them. A private and correspondence was, however, conti nued-to be carried on between him and Mrs. Proc.: tor, after she, with her husband, had retorecd to England, throegh the kind offices of 2 Madame Decree, a .milliner at Brussels, by whom Mr. French's letters were forwarded to Mrs. Proctor, under the aseumed name of Madame Woodforte, and addressed to be left till called tor, at the Sa racen's Head, at Ware. The husband, having his suspicions awakened, and beiog determined to 'ascertain whether they were well-grounded, obtained possession of one of these peelkets, the ,contents of which revealed the whole history of this latter connexion of his wife's. ThevTliad ar rived in England in August, 1815, and Went to live at Gordon's Hotel, from whence they re moved shortly after. But while they continued there, Mr. French returned front Pariv, and took up his residence at Long's Hotel, and im mediately letters and presents were interchangeo in profusion between that Gentleman and ,Mrs. Proctor ; for whom he ordered some rings, or un mented with a variety of significant devices, at Gray's, in Bondostreet. These, she observed to her husband, she had received front a female friend. Ildving at length got back to Merdocka, site was asked at dinner one day, by the Rev. Mr. Proc tor, the father of her husband, whether she had ersy commands for the post ? (at Ware.) She . ,blushed exceedingly ; and on the servaot's.re torn, Mr. Proctor, discovered the packet in ques tion. She then went to the house of Mr. Lisle, her father ;* and being confronted there the next day, the Ilth of October, with her husband, lie taxed her with infidelity, which she at first po sitively denied ; but upon his producing the Ist !ers of which lie had obtained possession, site became exceedingly 'agitated, and retired to her bed-room, whither Mr. Proctor followed her, and onl fronoher otherUteeri that left no doubt of ;;gilt. She then confessed her adultery with Freech, and made attempts by imploring aeknowe ledgrne4ittii to obtain .a recOnedietion, being; 'then leithin three months of her confinement, Mr. PrOCIOt yielded to the entreaties of herself and ~; the ketiresentations of her fethir, end net Ir s " the arouse till,after time " aecouchemenrrivvi takrn place : he then finally quitted her, and she apped rs to have lived with her father from that e Kr i°d (Jan. 1816) to the following December. The Learned Judge, atter adverting to the° facts, observed, that this suit was commenced iR -the beginning of 1817. Much time was stared t° have been lost, by reason of the difficulty in 1int'10:: curing witnesses. He should not now enter more minute details ; the proofs of ,the adulteri were abimdant,and such as were sufficient to Ma il) : .lain Many more than the one case he had now 1 1 decide. Thus far there could be no doubt that the husband Was fully entitled to his separation! Mit the case did not rest here ; the Court called upon to take , cognizance of other tees I na ' terielly affecting, not the indisputable guilt of this female, but the title of the linsbapd to his Mrs. Proctor, notwithstandine - all the professin n ." which she made upon the discovery of tier cerr e ' espoodenee with French, anti after all her (10 13 ' 7 rations of sincere • coetrition, her entreaties Pi t forgiveness, and her promises of amendment t , her husband, had manifested the most 'decide' hostility towards hitn. She had aCellStAl t,i:try id lier turn, of adulter'y with a w6inati n am ed Uter i lotte Phinis„whoere lie. had permitted to use 131 s name, with whom he had resided in, various pa" - , of the town, in Hereto:l-street, in Marshall-stre et ° the Edgware-road, and elsewhere, and by % vital he was charged to, have had a child, His Ctl o -.l*• sel, indeed, had acknowledged that fact, and t li . l usual plea, as to the identity of 111 i. timer& wit' the person who so lived with her, and her non identity with Mrs. Proctor his wife, was killf proved. Oo this stare of facts, then, a question arose, whether he bad forfeited hi s title to a sew' tence of separation or not ? There seemed no res . , son to imagine but that lie had a l wa y s provisosli confined himself to a strict fidelity to his own be If he had not, if he had forfeited this claim, lb* family which might be univ existing, or herceli er to be born, would become emitted to his nettle' and not merely to the rights of legitimacy, ba t to those of succession to his estate. He rnig itt be 'the father of spill ions children, and yet tito s children would be entitled to his property, al himself lieble for their debts. And what two be his remedy in the case ? He must resort t" the almost insuperable difficulty of proving ts non-intercourse with his wife, to prevent him fro t h lying under these most painful obligatimo. --4 By failing in this suit he might be compelled t° endure that the Offspring of a marriage bed, stai t ': ed with pollution anti dishonour, should his name, rights, and propetty. This then w'e n ' be, indeed, a case of great severity, as on the pa' t of the husband there were no previous be egol t i rities on his side. The late, perhaps, prwid eg some, resource ; for there was no eeestion that 1 116 legal nature of the.marriage-contract hod its o rieil l from time canon law, but not to the e e t e et of ilia c laW. The sacred obligations of marriage init; : l C be sespended, but they could not be extingnish e -"‘ They we:e traced in characters indelible and P ere petual ; no dereliction of the marriage-ditt ies could - annihilate that hallowed and sete - eu en"", tract, which, by the maxim of the law,iVls reCOg ilized as inviolable. With regard to the k" . ,‘ guments which the learned Couusel had fount' ed . upon the principle of colitpensatio, it was a doctrine not -iistredeeed by the ca' non law, but one which appeared to have be ell a standing institution of the civil law, and ( ' generally quoted in cases of this nature, where t‘ legal separation was prayed. Certain it teas t hat the general matter i k f eompensAt rigs aS r e 4 utlltred by principles which elme 'fi'ned. There were res cases on their books praetice, none on the records of their Court (ePl) l ' A cable to the circumstances of this seit) whico prived that husband of a sentence, who had cootin e i hiiinself to the marriage-bed, till after be had le Ii a Wife —a • Svpa . rallil i. occasioned by her " o ,' , misconduct. No such decisions Wergetri be hewn r ' but the canon law thought otherwise, It i n . tended to provide agaios't the tnischie'fs, aml t remedy those inconveniences to w(tich'parties subjected by mutual' separatiun : it therefore hely that a husband and wife, thus ciretitesiene e" should be through life upon an equal footing' ," That such was the doctrine of the canon kW uite Certain. It saw no distinction bet wf e ts q e the husband's eonnuittieg adultery before 1 0 ' i % the misconduct of the wife. The Court • syn a t t subject itself to the charge of idle eedantry, ,i multiplyiug authorities (beyend those it had a ready quoted) on . a doctrine so clearly establiol d, . 4 l conduct were to be tithe') as its guide in "'l ease, there could he no question as to its senten ce, . if not, it must rest upon the decisions of their o' v ' s •He was sorry to say none were to b found.. if they, then, were wanting, recoil ° e. : most b e h a d t o considerations of reason, Inc' relity, and public convenience. It was .I ) .e r :i tem ly notnrions that this country; after the Re 1. 4%, matioo, adopted the whole of the marriage ri te :. from the canon law ; the whole of our ma rriog s law in matter and form was COnstrtiCrefl upon it and that the doctrine of its indissolubility st ilt re d ' maincd in toil force, time coudoct of the feegis'- tore in interfering to grant divorces, under som a ? Cases, especially proved. The eripciple, th en : being retained, cerried with it ell its conic ' quenres. It carried with it even all the disso il l billy which " Mlultery cerriret into t h e orig inal contract of marriage. " Yet, tithing this (c ot " cinder! the Learned. Judge) tor my guidance, or cannot he blind to the fact, that the canon l ut prevailing on this Rotor, in this and other le 7 n rP ; 'peen conntrles, does not give that benefit to ", husband which it ought to do." Its results %i'e re ', spurious children antisepareie debts w hat o'e r ; the inconveniences; of the rule, as is no w slot ig d however, was- a qeestion such as the Court a , no right nor any ditty to exert:lee. Then, a s t („„ this species of retaliarien, whether such rel"'": 1 ) , • tiou ought to lie indulged, consistently will' is , interests of general morality, was E. matler beyond its enquiry. The vesiion confined its i c to this—whether the hushaitd was entitled, 0 ",`,, c , 6 the existingcirconistanees, to a separation ? Court was of opinion that he was nut,--eSuit I missed. Isg R)\ ; brit 04 :fty J. 11. I(SIVA Itt.3;. of Nti. Orpiroui-sireet; Queell-silimre; aod published. kr' , SCRIPPS, of No. 7, South Molson-street, at'T" ° . o */ • Otli.c, No. 11", Strand ; where Adrotisernenis, 411 " Letters, 4c, (post-paidj cunt be aJdrcaacd. ~, 1 Y~~ , ~~ q tr , the sK hi ti ~. ~.0 ~~1 ~' R ', .~~ i ~. y :