The Express.
London, England, 1867-07-30 00:00:00

LAW INTELLIGENCE.

(THI-.S DAY.)
HOUSE OF LORDS.
APPEALS.

(Praent—The Lord Chancellor, Lord Cranworth, Lord
We.tbury, and Lord Colonaay.)
LONIA (oR YELVERTOW) r. YYLN FRTON.

The facts of this case have recently appeared in our
columns. Their lordships gave judgement to-day.
The Lord Chancellor shortly recalled to their lordships`
attention 'the proceedings which had taken place. On
the nth June, 1859, the respondent raised an action to
hale it declared that the applicant was not his wife, and
that he was free of any marriage with her. On the 13th
January, 1860, she raised an action to have it declared
that she was his wife, and that they were lawfully
married persons. As the two actions involved substantially
the ...one question of fact they were conjoined, and a
proof was led in these conjoined actions applicable to
the said question of fact. The Lord Ordinary, by in-
terloeutor of 3rd July, 1862, found that the appellant
had failed to prove a marriage, and he decided in favour
of the respondent in both actions. On 19th December,
1862, the majority of the judges of the first division re.
called his interlocutor, and found that the appellant was
the wife of the respondent. Against this interlocutor he
appealed to the House of Lords, and on the 28th of July,
1464, their lordships adhered to the interlocution of the
Lord Ordinary save as to damages and expenses.
In November, 1864, Major Yelverton presented a
Petition to the first division of the Court of Sessions
praying that their lordships' judgment should be applied.
On the :Nth November the appellant gave in a minute,
craving that consideration of the petition should be super-
seded, and that she should be called to give in a conde-
scendence of rem noviter, and to lead evidence of certain
facts that had come to her knowledge after the
judgment. The judges of the first division held
that she could not at that stage be allowed
to aver and prove any res noviter, and re.
fund to sustain the proposed reference of the case
to the respondent's oath. Mrs. Yelverton appealed for
the following among other reasons : because a regular
marriage ceremony was no impediment or bar to a declara-
tion or proof of a prior irregular marriage ; because collu-
sion was not to be presumed or made a basis of judgment
without proof ; because the marriage of Mrs. Forbes with
the respondent was not entered into in bona fides, or without
notice of his first marriage with the appellant, and because
the matters of discretion on which the judgment appealed
against was rested were not such as ought to arrest the
operation of a well-established rule of law. On the other
hand it had been contended that the reference to oath was
incompetent in respect of the judgment of the House of
Lords of the 28th July, 1864 ; and in respect of the crimi-
nal nature of the charges involved in the cause, and
that it was properly rejected in the exercise of
the discretionary power of the court below. His
lordship was strongly of opinion that whatever
might have been the practice in former times, since the
statute I Ith George IV. and Ist William IV., such a pro-
ceeding as a reference to oath under circumstances similar
to those in the present case, was incompetent. It certainly
ought not to be permitted in any case where the rights
and interests of third parties who were no parties to the
litigation were concerned. It appeared that after
the time of the alleged marriage with the appellant
the respondent was married in June, 1858, to
Mrs. Forbes. If, therefore, upon a reference to
oath, a decree establishing the first marriage
were pronounced, it must necessarily deprive Mrs. Forbes
of her status as a wife, and therefore the interests of a
third party were involved. Again, if the respondent were
to admit the alleged marriage between himself and the
appellant, he must confess that he had been guilty of
bigamy. It was said that the Act 15 and 16 Victoria re-
moved all impedimenta against taking the evidence of
persons convicted of crime. Such was the argument of the
appellant on this point, but she left out of view one im-
portant consideration. It was true a party might refuse to
answer if he thought he would criminate himself, but then
he was taken to confess the facts referred to his oath, and
exactly the same benefit arose to the party from his silence
as if he had given an affirmative answer. l'nder all the
circumstances he came to the conclusion that the Court of
Session were right in refusing to sustain the reference to
oath. There could be no doubt that it was in the equitable
discretion of the court to allow or refuse the reference,
and the court of session were perfectly justified in the
exercise of such judicial discretion in refusing to sustain it.
Lord Cranworth concurred.

Lord Westbury said it was not hie intention to take any
part in the judgment of their lordships, as be bad been
compelled, from a severe domestic misfortune, to be
absent from the house during a portion of the &To-
mcat. He had, however, the advantage of hearing
the whole of the ►ppellant's address, and if he bad thought
there was any reasonable ground for believing the appeal
could be sustained, he should, out of feeling for the ap-
pellant, have endeavoured to hear the rest of the argu-
ment; but he was obliged to say that after listening to
that address he could see no reason why the judg-
ment of the court below upon this question should be
reversed.

Lord Colonsay likewise concurred, and said that titer
this unanimous expression of opinion, he supposed the
ease was practically settled.
The judgment of the court below, which refused to
sustain the proposed reference of the cue to the re-
spondent's oath, was therefore affirmed, and the appeal
dismissed.

The announcement that judgment was about to be given
in the Yelverton case had very little effect in increasing
the number of strangers present below the bar. The
appellant herself was absent.

COURT OF ADMIRALTY.
THE NEW JUDOS.

Sir Robert Phillimore, the newly-appointed judge in
the place of the Right Hon. Dr. Luahington, was to take
his seat in court this morning. There war a full attend-
ance on the occasion of the bar and of the public.
Eleven o'clock was the hour appointed, and at half-pest
10 o'clock come 30 summonses were disposed of by the
leaned judge in chambers. The Registrar (Mr. Rahn.")
announced to the bar that the judge could not sit In
court today, as the tenon patent appointing him
Judge had not arrived.
Br. Brett, Q.C.,'aeked whether there would beany court
to-morrow. lie had come from Liverpool in • case.
Dr. Deane, Q.C. said he had made his anangements
for next week. Dr. Travers Twin, on it being suggested
that the court could sit on Thursday, doubted whether it
could do so,' as her Majesty was out of town, and the
inters patent must be signed by the Queen.
The Queen's Counsel had an interview with Sir Robert
e, in his room, and the result was that the court
diner°. d sine die.
_

The bar awl the public were greatly disappointed at
there being no emu t.

COURT OF BANKRUPTCY.
(Before Mr. Commissioner Goon:aro.)
LEAVE GIVEN TO ISSUE PROCWIE ♦FTER TION OF A

DECD.

His Honour said that application bad been made to him
m behalf of some creditors of a person named Rathbone,
a commission agent, who had filed and registered
deed of arrangement. That process met issue
against him notwithstending the deed. The clause
giving the court power to do this was exceedingly vague,
and there was nothing to guide the discretion of the court.
But it had always been held that whether the debtor bad
°tiered a composition and failed to pay it, or where fraud
bad been resorted to in the oonenction of the deed, in such
cages leave ought to be given to issue process. The court
was of opinion that there was fraud in the present case.
A large debt was alleged to be due to Miss Russell, a niece
of the debtor, it not being shown bow she could have been
eof such a sum ; and still larger sum was said toried to • Mr. Griffiths, there gno clear account in
either cases how or when the advancesbein were made. The double
object of this collusion appeared to be to obtain a pre.
Pooderanoe over the other cre litors, and at the same time
to take away from them the whole of the debtor's pro-
Perty. Relieving this to be • fraudulent proceeding the
court would give leave for process to issue, but application
being made to that effect the order would he suspended
for ten days to give opportunity for appeal.

THE POLICE COURTS.
(THIS DAY.)

BOW-STREET.
A (laths Turarr, a tall FARMER IN TROUBLE.
, portly, fine-lookinq man, a
tanner, at Stone Mead, Sussex, was charged with being
drunk and incapable of taking care of himself.
Police-constable Mills, F 140, said the prisoner was
drunk lad night in Drury-lane, and a man (now in cus-
tody) attempted to rob him. As he was quite incapable of
Min; care of himself witness took him to the station-
house.
The Primmer—l utterly deny the charge. I was quite
"Table of taking care of myself. I was going borne and