The Express.
London, England, 1852-11-23 00:00:00

THE EXPRESS, TUESDAY EVENING, NOVEMBER 23, 1852.

DR. ACIIILLI'S CASE

COURT OF QUEEN'S BENCH.-YIiffERDAT.
SITTOOIa n, Banco—l:Liman loan r...arau.L. NIL JUSTICIB COL..
anus, Ma. Roma Wwsnaas. Aou. N.. Jcwocc Eng.&

Tux QvLr r. lxwxex.—LllaL—RcLa xis' you Nr.w

TRIAL.

Sir :Alezander Cockburn waved for a rule to show
tame why the verdict should not be set aside and a
new trial had, upon three following grounds
[frilly, that eertain evidence had bees improperly rejected
upon the trial; secondly, that the learnid judge before
whom the trial took place misdirected the jury; and
thirdly, that the verdict was against the evidence. As to
the rejection of evidence, the were two points to be urged
upon the court. The one wu as to the question addressed
to Dr. Achilli upon the subject of cases of incontinency
alleged to have been committed by him, and not named in
the plea of justification by the defendant.
Lard Campbell her, interposed, and said that in his notes
it was distinctly stated that the learned counsel said he
would not press that point at the trial, and that therefore
he ought not to bring it forward now.
Sit A. Cockburn did not doubt but that this was so, and
therefore acquiesced in his lordship's dcci.ion. The second
point in regard to the rejection of evidence was as to the
admissibility in evidence of an article in the "Dublinßeview,"
which article was in fact the authority upon which the
statements in the libel were founded. There wu a conflict
of evidence between the witnesus who cams forward to
pro's the charges in this libel, and Pr. Achill' who denied
the truth of their statement. It was, therefore. a matter
well worthy of consideration when the court was weighing
the question of probability between the one side and the
other, to show that Pr. Aehilli had submitted, during a
long period of time, to charges which were made against
him, and with the nature of which he was well acquainted;
charges too, in most points, identical with those contained
in the libel.

Mr. Justice Erle—Then you seek the production of an
antecedent libel to support a subsequent one ?
Sir A. Cockburn weight for the production of the "Dub-
lin Review" to show how identical the charges in it were
with those subsequently put forward by Dr. Newman ; the
fact of Dr. Achilli remaining perfectly quiet under the im-
putation cast upon him by the " Review," would bo matter
for the jury to consider.
Lord Campbell having intimated he still retained the
opinion he formed at the trid,
Mr. Justice Coleridge said, be concurred in thinking the
" Dublin Revile+ " could not be given in evidence. It was
not everything that, prima fade, would strike • person as
merely tending to show the truth that could be taken in
evidence. If it were true that the charges in the alleged
libel were more probable, because one found that at a cer-
tain period before they were made by some other person,
in some other publication, yet that was far too vague a pro-
bability to be received in a court of justice. There might be
many reasons for not instituting • prosecution when the
imputations were first made—for example, the anonymous
character of the article, povert&e.
Mr. Justice Wightman and Mr. Justice Ede concurred.
Sir Alexander Cockburn, therefore, went to the next
point, via , the misdirection of the learned judge to the jury.
The misdirection complained of had reference to a certain
decree of the Court of the Holy Inquisition at Rome, which
in form consisted of two parts, one of which was the charge
bruught before that court against Aehilli, and the other the
sentence of the court upon that charge. The learned gen-
tleman did not contend that the decree should be taken as
conclusive evidence of the truth of the allegations contained
in it, but that, being the opinion of a court of justice, acting
according to the general raid applicable to the polity of na-
tions, it must be taken as possessing greater weight than
the mere dictum of an indiv,dual. The learned judge at
the trial had considered that the lirit part of it, containing
the statement of the charge s, was not in point of feet the
judgment of the Court of the laquinition, and that the latter
nut only was entitled to anything more than the or-
dinary weight. Sir Alexander Cockburn then read
• translation of the decree, sad argued from its
terms that the whole of it, being the decision
of a court having a competent jurisdiction to deal with the
matters therein alleged, was worthy of receiving a greeter
amount of credit than ordinary evidence. The learned
gentleman then addressed himself to the remaining point :
that the verdict of the jury was against the evidence. lie
first called attention to the fact that there was produced on
the ride of Dr. Newman no Ica than twenty-two witnesses,
while, en the other hand, there was only the evidence of
Aehilli himself and the wife of the tailor, or Corfu. The
woman Valente stated that Achilli had attempted to seduce
' has while she was the domestic servut of a Madame Gentili.
De. Achilli smarted in reply that at the time when such an
eithemipt was alleged to have been made he wan staying at
the house of a widow named Christopholo, and, therefore.
was sot at a Madame Gentili's. as Valente asserted, It
afterwards suss out that this Madame Christopholo bad
been a Geatili, and that it was the custom for widows in
that part of Italy to he cilled by their former names. Herr,
then, the learned gentleman wetted, was a mine ruble sub-
terror' on the part of the prosecutor, sad one which, he
thought, with all saboni-nion. had not been brought for-
ward by the court se it should have been.
Lord Campbell said this was a very unjust accusation on
the part of Sir Alex. Cockburn, as he had been most par-
ticular in reading the notes of the examination to therjury.
Sir A. Cockburn could not help thinking that if that
point bad been properly put before the jury, although,
without exception, it was the most biassed and prejudiced
he ever saw, it would have had weight with them.
The teemed counsel then with much minuteness went
through the evidence of the woman yrincipe, the tailor's
wife Gummed, the lady who acted as governess to the
daughter of Mr. Ileynolde, at Zante (who gave evidence of
an improper intimacy alleged to exist betwt. n the prosecu-
tor and the tholes since* wife), thee women who asserted
that Dr. Aehilli had had connexion with them in England,
and finally the evidence et the Doctor intent,: but es the de-
tails have already been before the public, anti the statement
of SirA.Cockburn was necessarily quite of an ell puteeharac-
ter, we do not think it neve was) to give this portion of hie
speech fully. It will suffice to note that, in concluding, he
again said, that, although he was unwilling to cut any mei-
madvenienn on that which wns the proper and legal tribu-
ne( for deciding questions of fret of this nature, he could
not bet express his opinion (sad he did not stand
alone in this respect), that a more determined btu, n more
inveterate prejudice, was never mania sted by an English
jury, then was exhibited by the gentlemen of whose verdict
he then complained.
1 Loud applause followed this concluding declaration of
the learned gentleman, which, however, was promptly
stopred by the officers of the court.
The !tuned Jurlires having considered the matt. r,
Lord Campbell said—Sir A. Cockburn, you may take a
lrale OR the ground that the verdict was against evidence,
and on no other.
Rule Urn aosordingly.

tb iinteitigence.
HOUSE OF LORDS—YErnaDAT.
- -

--•—••••• . •
7111 !ARID Cinalest.w., Was Thus% is. Lm.
lA-m..lc _

Grua • Dicxessom, OtHlHglee Cillais.—Dyroscs IT
111 M SCOTCH CuUNITS.

This was ea appeal from the Scotch courts, and
Involved the question whether a wife who has ob-
tained a divorce I mensal et thorn la the Ecclesiastical
Courts is England can obtain a divorce a vises&
matrimopii in the Scotch courts. The appellant is Mr. J.
E. Gaels, the son of Colonel Diets, who was the proprietor
of an estate called Durnbuck„ in Dumbartonshire. Ile was
born in 1813, and in 1834, beiog then about 21 years old,
obtained a commission in the 4th Light Dragoon', joined
his regiment in India, and returned to England In 1837,
when he passed some time at his father's house in Dumbar-
tonshire. In June, 1838, being in England, he became
acquainted with Miss Dickenson, a lady of large fortune,
about 18 years of age, and a ward in Chsnecry, and in O.
tober of that year he married her, at Bhinfleld, in Berk-
shire, where her property was situated. Alter the marriage
they had no settled residence, but lived in • famished
house, and went on a visit to Cnlonel Diets, in Scotland. In
Fels, 1813, by the death of hie father, Mr. Girls, the appel-
lant, succeeded to the estate of Dunibock, in Dumbartonshire
In September, 181.5, the parties being then in Englund,
Mrs. Oieh emigrated from her husband and insisted on a
divorce. In October, 181.5, the husband instituted a suit in
the Ecclesiastical Courts is England for • restitution of
conjugal rights. By the modern practice of the Consisto-
'dal Court, ii a wife resists such a suit on the ground of
adultery or cruelty, she does not institute kens, suit, but
puts in • responsive allegation which concludes with •
prayer for separation a mini et there; and this throws the
initiative and the onus of evidence on her. This was done
by Mrs. Girls, and a final decree wait pronounced by the
Arches Court for a separation d mensal et than in April,
1848. le May. 1849, Mrs. Diets, the present reoponaent,
brought an action in the Court of Session in Scotland for a
divorce • vinculo matrimouii. Mr. theta, her husband, the
defender in that snit, put In several jdeas, of which the two
first were now in question—sin., " that the pursuer, his
wife, was a native of hngland, and that the marriage was
contracted and solemnieeu in England, and therefore that
the Scotch courts had no jurisdiction or power to dissolve
the marriage ;" and secondly, that the pursuer bad in.
stituted a snit against him (the defender) in the Arches
Court in e:ngland, and that • sentence of separation I
anal et thorn had been decreed by that court, which
was a bet to the action." In November, 1849,
the Lord Ordinary by an interlocutor (which was not
in the present appeal) repelhd the first defence as to the
jurisdiction of the court, and reserved the second defence.
On appeal to the inner house that judgment was confirmed
in December, 1849, and the cause was remitted to the court
below to proceed on the secenil plea. In July. 18.50, the
Lord Ordinary repelled the second plea by his interlocutor,
and on appeal to the inner house his judgment was con-
' firmed, thus establishing the right of the wife to proceed in
the Scotch courts for a divorce, notwithstanding the sen-
tence of the English Eeeleeiaatical Court for • emanation,
manta et thuro. Against this decinion the appeal now
came before their lordships.
Mr. Beaten and Mr. Anderson, for the appellant (Mr.
Diets), were about to open the question of the jurisdiction
of the Scotch courts ; but
The Lord Chancellor said that question was not con-
tained in the appeal, as the first tinterlocuter was not in-
cluded in it ; in which opinion Lord Truro concurred.
After some argument as to the right of the appellant to
amend the appeal in that respect,
' Thu Lord Chancellor said it woull be irregular to allow
each an amendment, sad the appeal must be argued as it
stood, but if the house found afterwards that justice could
not be done without such amendment, they would consider
whether that course could ho taken.

Mr. Bethel' and Mr. Andertonthen contended that this
was an English marriage, and that the question being
already res judicata, the respondent was barred from
seeking any further remedy in a court of different juris-
diction.

Mr. Moncricff and Dr. Addams, fir the wife, the re•
'pendent, urged that, *rut from the question of Jurisdic-
tion, a divorce a vincula reatrimonn was a larger taco-
sure of relief than a separation u nicnsil et there, and
that the respondent was an involuntary party to the suit
in the Ecclesiastical Courts in England, while the husband
was clearly domiciled in Scotlet.d.
At the conclusion of the argument, their lordship post-
poned judgment.

EQUITY COURT&-YESTARDAY.
now VOUNIZMUNCrUna Xisonnre

WINCH C. THE BIRKENHEAD, LANCASHIRE, AND CITE.
SHIRE JENCTION RAILWAY CONEANY.-INJUNCTION TO
RLSTILAIN TUE TILANSFRII OF A RAILWAY.
- .

In this ease an order was made by theViee•Chancellor to
restrain the defendants, their omcrrs and orate, from mak-
ing over, or transferring, to the Loudon and North Wes-
tern Railway Company, the plant and property of their
lino until they should have fully answered the bill. This
case swore out of a desire on the part of the defendants to
enter into an agreement, whereby tl-cy might transfer their
railway to the North Western Company, who had offered
them a 4/. per cent. guarantee, instead of concluding an
arrangement with the Great Western directors, who offered
only 3/. 10s. per cent. A meeting of the directors of the Bir-
kenhead Company had been held, but the terms of the agree-
ment to be entered into were not stated, in consequence of
which the plaintiff, who was one of the shareholders, applied
for and obtained this injunction. A utotMo was now made to
dissolve that injunction, on the ground that the terms of
the agreement with the North Western Company were not
intended to extend to a transfer of the ruilway, nor to
giving up the maaagenient and control over
it,
but
merely
to do what they had-full power to do by the 87th section of
the Railway Clauses Act, that is, to enter into a contract
for the passage over or along the railway of any engines or
carriages belooginr to the North West, rii Company. This
was the only contract they intended to enter into until they
should be able to apply to parliament for an ant giving
them more extensive powers to deal with another company.
The Vice-Chancellor said when he granted this injunc-
tion there appeared to him to ho sufficient ground fur
believing that the (lc (rodents, under the terms of the con-
tract they were about to enter into with the London and
North Western Company, were likely to do that which would
be contrary to their powers. Tree exact terms of that
agreement were not stated, nor were they now brought
before the court. Ilia opinion still was, there was reason
to believe that the defendaats contemplated entering into a
contract for transferring the management and oontrul of
their railway to the North Western Company, sod he
thought therefore that the injunction ought to be continued.
It had, however, been argued that the terms of the
injunction should be varied, :n order that the de-
fendants should not be precluded from doing what
they were intitled to do under the 87th section of the
Railway Clauses Act, and that they ought not to be pre-
vented from applying to nerliament to sanction a lease of
their line to the North Western Company. if he had any
idea that the terms of this injunction would prevent the
defendants from going to parliament, he would be the first'
to correct it ; for it was evident that this court could have
no pewee to prevent a company from obtaining an act of
parliament, nor would anything done by the Court of
Chancery have that effect, although it would be very pos-
sible that, if such an injunction were granted, tbe
tore would hesitate before it meted contrary to the opinion
of the court. Ho did not, however, sec that the terms of
the injunction could be construed to prevent an application
to parliament ; but, upon the argument that the defendants
ought not to be restrained from entering into a contractunder '
the 87th section of the Railway Clauses Act, he thought that
might possibly be inferred from the form used. He would,
therefore, modify it by adding, " except so far as it may
be lawful for the company-, from time to time, to enter into
any contract with any alter company for the peerage over
or along the railway of any engines, coaches, waggons, or
other carriages of any other company, upon payment of
such tolls, and under such conditions and restrictions as may
be mutually agreed upon."