The British Press; or, Morning Literary Advertiser.
London, England, 1826-01-28 00:00:00

the .ffltinlitiry family, and the tithes of the district in the plaintiff.
B/thei original deed of conveyauce, the considerstiop for the tithes
o those 18 acres wa 301., orbit*, if the time at dhich that sum
True pa d be considered, it will be thought a fair and valuable con-
aidevat...m. When Sir Charles Banbury and Sir Henry
Punburv, the defendant in this cause, came into possession of the
title and estates, no one could have known the state of the title.
aid eons. client!, there coeld be no !aches on 'the part of
Sit Hei.ry Butibltry, the present proprietor. When Mr. Dennis
clime into possession he refused payment of tithes, as he rented the
Lads is question tithe free item Sir Henry Dunintry. In the suit
that attended that refusal, it-apeemed that those closes, to the
tithe of which the plaintiff laid claim, were severed from the rest by
a decision of the Commisalusters of Enclosures, and consequently
ao defence could be made. The admission that was then made was
m ignorance of the deed which was found by Mr. Holmes. and he
hoped that the I:nurt would allow the answer In this cause to be
attended. which containedlian admission, which, though it would
art be of any great advantage to Sir henry Banbury to have cor-
rected. yet it would be a setorus Injury to him that it should remain
onaniended ; lie said that he was willing to pay the costa should his
naotOtt be acceded to.

ltlr. •ltT ?wit addressed tho Court. He said the simple guess
lion was this, what is the rule of a Court of Equity ? Will a de-
fendant who has admitted what may be injurious to the totems!,
of his cause, be allowed, after he sees his error, to emend his ad-
Missions, and thus turn his !aches to a good account ? In Equity
moos he 'Nought the Court should receive such applications with
Cleat jesisusy mid caution.
The Learned Counsel wss proceeding to make further observa-
tions, when
Mr. Ihron OR AUAM observed, that the Court was In full pos•
maim ~11 tt,e nature o the case, and though he was ready and
Otte willing to hear the arguments of the Learned Oentieman, yet
he thong''' that. peliaps, to spare the time of the Chin, the
peorned Counsel would not think it necessary to press his argu-
ment.

Mr. brietT replied that he was conscious of the indulgence of
the l'ourt. and would not occupy their Lordships time with any
thrther observations. _

Mr. Jane's then addressed the Court for the plaintiff'. He said
that he objected to the application,on the ground of form; the terms
of notice of motion were too general. and it would not be invidious
temper a maxim of law that weak cases deal in generale." The
teellee was put in without oath ; it did not state specifically what
they wished. and he therefore considered the decision of the Lord
Oiancellor. in the casel'urling v. the Marquis Townshend. fatal
to the implication of the defendants in this cause. In that case it
epee decided that the notice of motion should state the nbject of web
rootiot.. It was clear that decision reformd to the terms of the no.
dice. and it tel. equally clear that in all former cases • precise state-
men of wl it:hr parties making an application to the Court wished,
had twin invariably made in the notice of motion. He objected to
the nurinn en another ground, on that of negligence. There has
been (said the Learned Counsel) coos negligence in this cam. I
do not use the words unadvisedly, and I feel confident I' shall con-
vince your Lnrdshipe that the negligence which renders this appli-
cation to the Court at all necessary, shows • hitches on the part of
the nefendaats t the perception of the tithes were in the plaintiff,
and this deed was • useless piece 01 parchment. M' hat, he would
ask. emit' knee induced the solicitor of Sir Henry Sunbury to
smirch for this tiled if it was not to make it available for the pur-
poses of this nit? Was not that solicitor (Mr. Holmes) connected
with Mr. Ca.!, who was one of the defendaws in the cue
sr Marvels. flood, and Case? Mr. Holmes has told us that the
dsetl has been found since Trinity Term, but had Mr. Holmes told
the whole tenth, he would have told us that the search foe that deed
was made us forward that case. It was a mistake to suppose that
the plaintiff in this case was the lay impropriator of 600 acres,
mated in and Sir Henry B. the improuriator of the
remainder. The question of right in this case was referred to the
Commise.onere of i,nelorures, but they refused to decide; they had
In fast no authority to gire a decision on the question. The late
tier C. Bonhory insisted that 'he was entitled to the tithes of these
lends. and if gross negligence was not attributable to the parties
Interested for the defendants, that was the time for the search for
this deed to have been made. In 1619, a bill was filed against
Lennie, to which he pt.' in an answer. That suit came to be
beard in January our title was admitted, and we got an or-
cite for an account. We have been kept at arm's length by
every *tenant in those lands ; Sir Henry Sunbury and his
agents supported those occupants in their opposition to us;
tie -was riot satisfied with countenancing this oppoeition, but a-
ferdetf-it to pe,sons with whom he had no connexion whatever.
The learned gentleman then adverted to several affidavits in the
awe, to prove that tile lards were let subject to tithes, and that
a• person of tile name of Andrews, who was steward to Sit Charles
Eisiver. swore that those lands were let subject to tithes. Tring
Infused to take the land on those Onlditiows; and en that refusal
Dennis took the lands. _

Surest other affidavit* were then read, to prove that the parti.
culler doses in question were let eubject to tithes. To which Counsel
an the other aide replied, that the property of Sir Charles Banbury
ettended over • space of 600 acres in that district; that
the closes In question did not contain move than thirty ; and that
those affidavits did not prove any thing relative to the closes. Mr.
Jarvis concluded by observing that there had been a degree of
seeeligenee in the case, which he was sure (he said it with great
deference) would deprive the Court of the power of granting this
application.
Mr. KRIORT followed on the same side. He said that Illr.
Jervis had so ably discussed the case that he had left little tor
Lien to do. This, he contended, was a notice of motion, giving
the Court no jurisdiction. There were contests for years between
tbg plaintiff end Sir Henry Sunbury; there was suit after suit;
and yet this deed was never heard of until now. This was certainly
a capable negligence: In fact, the very cause which brought them
to the far of the Court was in itself an admission to that effect, and
-conclusive evidence of negligence. It' their Lordships. thought
that this was. judicisily, negligence, then the aoplication of the
'defendant could not be granted. There was no proof the identity of
the land. Mr. Feels swears that he believes (and no one was
faun disposed to credit that gentleman's belief than himself). that
they were tho same lands; but he does not state by what process
af reasoning he arrived at that conclusion. The links in the chain
-of the deterrence of thou lands was not very distinct. Potter
densely, than to Perceval, the latter to Hamner: but there was a
broad gulf between Hanmer and Sir Henry Bunbury. There was
ISO evident,' whatever of the conveyance of the land from Hanmer
so Sir Henry Bunhury; and under those circumstances he thought
no order nn the application could be granted.
Mr. MARTIN replied. He said that he bad many observations
hs make ; he would not waste the time of the Court with a repeti-
tion of arguments, •1 isec labore." and, by arguing this ease
at gitater length, he said he might, perhaps, be obliged to add.
** breurinfeo." Henry Bunbury had made the admissions ip
utter ignorance of the deed which was afterwards discovered by Mr.
Holmes, and hoped the Court would allow him to amend that ad-
mission. He then moyed for leave to file a supplemental answer
to amend the former answer filed in Court.—Hr. Baron °ARROW
udd that be could not impute any culpable negligence to the de-
;fendenes ; the perception of the tithes in litigation were in the
Banbury family, and it was not by any means surprising that in
AU*. Wilily a deed, Which referred to a matter which they could
'not deist of great Importance. should hare been overlooked. Ile
thought the motion should be granted, with payment of the
charge' of the replication and all subsequent costs.
The bomb Oust BAROII and the other Judges coincided in
this decision., and the motion was therefore granted.
Nene of the new trlais (which were fixed for this day) came on
to be beard,
The Court adjourned about three o'clock.

CONSISTORY COURT, FRIDAY, JAN. 27.

r L;)ir Sir C. Rosirrsow.)

TUN MOOT NCOtt THE MAIICNIONEIIII OF WEVINEATO

THE ?,SAIIHEIS OT WESTMEATH.

This suit, which was promoted by the Marchioness of %rest.
attach against the Marquis, for a divorce upon the grounds of
cycle" and adultery, was commenced during the last term, and
'upon its opening we endeavoured to lay before our readers what,
from the voluminous nature of the evidence, was only an abridge-
ment of the cirenmstances connected with this curious and important
ewe. The reading of the allegations having been concluded on the
lost session of the last term, the cue was called on this day for
MVO Elletn.
be. Lusnimorow, on behalf of the Marcnioness of West.
Reath, occopied the flours for more than three hours. lie said
the ease had first been brought to the notice of the Court in 11121,
'when a suit for the restitution of conjugal rights was promoted by
t baMarquis of tVestmeath against the Marchioness. The Learned
Sioartsel thought that this statement involved considerations which
ought materially to influence the decision of the Court, because it
proved that Lady Westmeath was brought reluctantly into Court,
and that It was not her lank that the unpleasant circumstances of
the case had been laid before the public to the great injury of
till parties, the principals as well as their relatives anti friends. The
wffsirs of persons of elevated rank uniformly obtain publicity,
and excite an attention which is not bestowed upon the affairs of
persons in inferior stations, and if it was only foe this reason, great
caution, consideration and circumspection should have been used b
Lord W. before he determined to read the veil from transactions which
every body must have wished had been kept secret. The prayer
of Lord Westmeath was that Lady Westmeath should be restored
to his ixiety, and again received in his house as site partner of his
inlaid and bed. This desire of his Lordship proved that. the con_
duct of Lady Westmeath was irreproaehable, and that site was
worthy to be taken again to her husband's heart. When Lord
Wastmerth instituted the snit, hie only daughter was fourteen years
of age. and yet he thought Lady W'estrulath was a fit person to
have the care and management of his daughter. The question
natotally arose whether Lord Westmeath really desiredto have his
Wee' trite under hie reef, nr whether there was some motive not
actually dialoged? Whatever Lord li'estrr,eath's motive our
bent , the Court heWas sure would not lend its sanction to his
obtsinfllkkr that to which in law and equity he was not entitled. l'his
wod Itlbe an &bare of thepowee of the Court and not a lining use
of treas undoolsielly true that a party who proved his mar.
tier t nad a right to call upon his wife to return to cohabitation with
him notelet she could show cause sufficient to debts the party noon
trietemedf claimed. The party in the present COMO came forward
to pretect'herself ftom a new cohabitation. Now, the pasty coming
leeward a 4 aggressor was always held to be bound to sarictgr rules
of evidence than when a party came into Court for self defence. In
toe case of Mortimer v. Mortimer, which was a utit'brought by
the wife for the restitution of eon)ugal rights, and detended
by the naisband on the grounds of &clattery committed by the
wife, the Court laid it clowii, that as the wife had been the
=seer greater iodulgende should be shown to the hus-
hed .greeter Weight littiebed to the evidence produced