The Express.
London, England, 1867-06-13 00:00:00

COURT OF RXCHEQUER.

Sittings in Banco.—(Before the Lord Chief Baron, and
Barons Martin, Bramwell, and Pigott.)
SLADE IN MINT.

The judgment of the court in this important case was
delivered this morning. As some time has elapsed since
it was argued the following short summary of the facts will
enable our readers to appreciate the effect of the decision.
The plaintiff is General Marcus Slade, formerly governor
of Guernsey, and twin brother of the late Sir Frederick
Slade, Dart., Q.C., who died suddenly in 1863,
and by this action of ejectment he seeks to
recover possession of the manor of North Petherton, in the
county of Somerset, and certain other lands,
entailed in the Slide family. The defendant is Alfred F.
A. Slide, the eldest son of Sir Frederick ; and the real
contest is, which of the two—uncle or nephew—is entitled
to the Slade estates and baronetcy. This involves the
legitimacy of the defendant, who claims to be the eldest
male issue of a legal marriage between his father and Mies
Maria Barbara Mostyn, spinster, at St. George's, Hanover-
square, on the 23rd December, 1833. Dy the consent of
the parties, it was agreed to have the question of fact and
law decided by this court without the intervention of
a jury.

The arguments extended over nearly ten days of List
term, the Solicitor-General being heard on the part of the
plaintiff; and Mr. Coleridge, Q.C., on behalf of the de-
fendant. It is the practice of the court to hear only one
counsel on each aids in • special awe. The other counsel
were—for the plaintiff Mr. Kingdon, Q.C., Mr. Henry
Boller, and Mr. Howe ; for the defendant Mr. Mellish,
Q.C., Mr. Henry Matthews, Mr. Bare, and Mr. Wallis.
General Slade, the plaintiff, disputed the validity of
the English marriage of 1833, on the ground that Miss
Mostyn was already married to another person, and that
her husband was then alive. There was no question that
on the 6th October, 1825, at Milan, a ceremony of marriage
was gone through between her and Van Koerber, an Aus-
trian subject and •lieutenant in the Austrian arniy,and that
be did not die until some time in 1853. The real question was
whether that ceremony was valid, according to the laws
then in force in the Austrian dominions of which Milan
then formed a part. The following were the circumstances
attending the Milanese marriage. Miss Mostyn was the
daughter of the late Mr. Charles Brown Mostyn,
of Kiddington, and the sister of George Mostyn,
now Lord Harrowden of Vaux. In 1821, being about 23
years of age, she went with her mother, who was then a
widow, on a continental trip. Ultimately, the tourists
reached Milan, where they took up their residence and
mixed in the best society of the place. Here it was that
during the carnival gaieties of winter she Ifirst met Von
Koerber, a young gentleman of good family and a
lieutenant in the Imperial Engineers, and with the
consent of Mrs. Mostyn, they entered into an engagement
to marry. A marriage settlement was regularly drawn up,
but the lady being a Roman catholic and the gentleman a
protestant a difficulty arose with regard to the parlor-
mance of the ceremony. In Lombardy, mixed marriages
were prohibited except by the permission of the Pope,
which was seldom or never given, and Pietro Zerbi, the
parish priest of St. Babyla, in Milan (the parish in which
Mies Mostyn resided), and the curator animarum of the
bride, refused to perform the ceremony, but he gave
• kind of delegation to marry the parties to Feld
Superior Nagy, a military priest, who presided
over the district of Lombardy, and by virtue of his posi-
tion did not feel himself bound by the prohibition of
mixed marriages, but followed the custom of the German
provinces of Austria, where such marriages are allowed.
On the day already named in October, 1825, Feld
Superior Nagy accordingly celebrated the marriage in the
church of St. Fedele, in Milan, in the presence of the
friends of both parties, and a welding breakfast followed
at the residence of Mrs. Mostyn. The union soon proved
to be unhappy, and in less than six months after-
wards, Miss Mostyn, by application to an Aus-
trian court, obtained a separ►tion • mensa et
thoro—from bed and board—an agreement having been
previously entered into, by which Mrs. Mostyn undertook
to pay an annuity to Von Koerber on condition that he
did not molest her daughter. Miss Mostyn never again
met Von Koerber, who eventually became a brigadier-
general, and who, up to the time of his death, in Int, was
in regular receipt of the annuity, • sum of 20,000 florins
having been deposited at Milan to provide for it. It
seemed that Miss Mostyn's acquaintance with Sir Frede-
rick, then Mr. Slade, began also at parties in Milan in the
winter of 1825-8, and on her return to England it ripened
into an intimacy which resulted in the Hanover-square
marriage of 1811.
On the part of the defendant it was contended that the
Milanese marriage was, by Austrian law, invalid, and first,
because the banns were nut duly published. As Miss Mostyn
bad not resided six weeks in St. B•hylait was said that they
ought to have been published not only there, but also
in the parish of Sta. Maria della Passione of Milan,
in which she had also resided, and that they had
not been published in either parish. Secondly, it was
argued that the bridegroom being a protestant, Feld
Snperior Nagy was not competent to perform the cere-
mony, and that it ought to have been performed by the
parish priest of St. Babyle. Upon these grounds it was
said that Lady Slade, the defendant, could, at any time,
iu Austria, have obtained a declaration of the nullity of
the marriage. and that it was not necessary that inch a
declaration should have been obtained in Austria prior to
the English marriage in 1833 in order to save that marriage
from being bigamous and void.
On the other hand, the argument for the plaintiff we.
that the numerous authentic document,' in the case showed
that all the legal formalities necess►ry to be gone through
in Austria prior to and at the performance of such a mar-
riage had been complied with ; that the presumption was
in favour of the Austrian marriage ; and that even sup-
posing there had been any irregularity, the marriage was
valid until it was declared invalid by proceedings for that
purpose before aco npetent Austrian court, at the suit of
some person entitled to question its validity.
As there was • difference of opinion among their lord-
ships,
Mr. Baron Pigott. being the junior judge, first delivered
his judgment. Having observed that the court had cast
upon it, in this case, the duty both of judge and jury, he said
the question was whether, when Min Mostyn married the
late Sir Frederick William Slade, in 1833, she was tho
wife of Carl Von Koerber by • valid marriage, according
to the Austrian law, on the fith of October, 182.5. In his
view that question involved not so much the doctrine
of presumption as of the sufficiency of evidence,
and he thought it safer to rest his judgment
upon the evidence than upon presumption. The
marriage of 1825 was said to be invalid, first be-
I cause there had been no due publication of banns,
and, secondly, that the priest who performed the
ceremony was not competent to perform it. He assumed
that, according to the Austrian law, the publication of
beans was necessary, and that there most be six weeks'