The Sun.
London, England, 1825-11-17 00:00:00

HABEAS CORPUS-MOORE V. FITZGIBBON.

Mr. ADOLPHUS on a former day obtained a writ of Habeas
Corpus, which was directed to a person who had the custody
of an infant, in order that it might be brought into Court to be
delivered to Mr. Moore, the father. The Learned Counsel
moved this day, that the return to the said writ be received.
The return was accordingly handed to the Bench and read.—
The person to whom the writ was directed returned, that the
child is ill of the "'teazles, and that he could not obey the writ.
He was, however, ready to obey any further order the Court
might make.
11r. SCARLETT then moved the child be delivered to the
father. . _

The COMMON SERGEANT opposed the motion. He said
he had difficulties to contend with in this instance. He did
not mean to say a father was not entitled by law to have the
custody of his son, but it had been decided by the Lord Chan-
cellor, in the case of " De Mandeville," that a child was not to
be delivered to the father, if the object which the father had in
view was injurious to the child. The present case was one
which would justify the Court in refusing to deliver the infant:
The Common-Sergeant read the affidavits of Lord Brandon
and Lord Kilwarden, which were detailed some time since in
the Court of Chancery, upon an application to make the child
a ward of Court.
The inference drawn from those affidavits was, that Mr.
Moore wished to get possession of the child from a vindictive
motive. It was also contended, that 6,0001. had been expended
by Col. Fitzgibbon, as damages in an action of trim. con. by
way of compromise, and on condition that Mr. Moore should
allow the children ( Florence and Henry) to remain with their
mother, who, in consequence of a divorce, is now the wife of
Col. Fitzgibbon.
Mr. BRomaitram and Mr. CHITTY were heard on the same
side.
Mr. SCARLETT read the affidavit of Mr. Moore, which de-
nied the principal allegations in the affidavits made in behalf
of Col. Fitzgibbon. He described Mr. Moore to be a person
who had really an affection for his son, and as one who had
settled his fortune upon him. There was no pretence for say-
ing Mr. Moore ought not to have the custody of his son.
The LORD CHIEF JUSTICE said, there can be no doubt
we are bound to consider Mr. Moore the father or the child,
nor is there on the law that a father is entitled to the custody
of his son. We are bound to give him the benefit of the law.
I do not say if it appeared to the Court that the general interest
of the san would be injured by giving him up to the father,
that we should not be at liberty to refuse the delivery; but I
am clearly of opinion nothing of that sort appears. As to the
compromise, it seems we ought, on the affidavits, to leave that
entirely out of consideration. Then how is it to be interred
that the child would be injured in the hands of this gentleman,?
1f he is delivered over to the father, he will be brought up as
leritimate , - but if he remains with the mother, he will be
brought up as illegitimate. It seems to me, upon the whole
view of this case, that we are promoting the interest of the child
by giving him to his father. We, therefore, give a rale of
Court that the parties who make this return shall retain the
child in custody until he is sufficiently recovered front indispo-
sition to be satdy delivered over to the father.
Mr. Justice BAYLEY' concurred in the judgment of Ifie Chief
Justice.
It was then agreed that the child shall be delivered. so soon
as tile medical men can report that he is well.

CONSISTORV COURT, Nov. 16.

THE MAIIULIS OF WESTMEATH v. THE MARCHIONESS OF

W EST ME AT H.

Dr. LusitreGTO.N, upon the part of the Marchioness, stated
this to 'be a suit for restitution of conjugal rights. instituted by
the Marquis against the Marchioness of Westmeath. The
usual formalities required by the Court had been complied with,
the marriage.ol the parties was. admitted, on the 28th May .1812,
the cohabitation, and birth of two children, were alsoadmitted.
—ln answer to the libel there was an allegation from the Mar-
chioness, consisting of many pleas, stating various acts of
cruelty and, ill treatment on the part of the Marquis; that he
had treated her with cruelty in August 1812; that he had be-
haved with equal impropriety at the house of the Marquis of
Salisbury, but that she had concealed the circumstance from the
that Whilst in Ireland he had retained her Pin-money
and left her in want of necessaries ; he had upon one occasion
called her opprobrious names, and said he would kick her ;
that in May, 1814, he struck. her violently on 'the side. whilst
in :estate of pregnancy; upon this occasion the Marquis ac-
knowledged the impropriety of his conduct. That When in
the .same year she lay-in, he treated her during lief confine-
ment with barbarity, threatening to leave all his- propvrey to
his brotht4, and to cut oft his daughter. This he had also
acknowledged to his friend Mr. Wood. ppon this occasion,
when she required a wet nurse, the Marquis swore she should
nurse the. child herself. At Leinster House, in Dublin, the
Marquis- quarrelled with her about going to the play, when

PRICE SEVENPENCE.

he beat her severely, and struck her violent blows upon the
breast; he used violent language, and endeavoured to smother
her. Apprehending bad consequences from such acts, abe
applied to Mr. Cram ton, an eminent surgeon, who attended
her ; she accounted for the soreness of her breast by saying She
had got a fall. In consequence of this -conduct her health
was affected, and she determined to seek a legal separation- if
he diet not desist. The Marquis having continued his conduct,
a meeting was held at the Waterford Hotel, in September, 1.815,
for the purpose of effecting the separation, but having admitted
his bad conduct, and expressed his contrition, she gave up her
intention. In December 1815, they went to Paris, whilst at an
inn, upon the road, he beat and struck her with such violence
that she was near falling into the fire. Upon their return from
Paris, they proceeded to Ireland, and whilst in the packet he
quarrelled with, and used opprobrious language to her. In 11117,
when residing at Saville-row, she threatened to appeal to the
laws of the country for protection. The Marquis went to.' Ire-
land. whence he wrote letters, of contrition, and she abandoned
the idea of separation. In consequence of reir constant disputes
and differences, they agreed to live apart, and an indenture was
about to be prepared for the purpose. Whilst residing at Strat-
ford-place, the Marquis renewed his cruelty ; upon one ocasion,
seiz:ng a poker and shaking it over her head. She complained
to her friends, and Messrs. Sheldon and Wood were authorised
to draw up various articles which were agreed on. The papers
were sent to a solicitor to be copied but the Marquis contrived to
get-them into his possession, and they were destroyed. The Mar-
quis was anxious to obtain a bed-room in her house, to conceal
their differences from the world. He had, upon various other oc-
casions. offered her insult, and committed acts of cruelty. When
she spoke of the powers of her trustee, he affirmed that he would
chalienge him, and tire at him whilst he had a leg to stand on.
He had brought a constable into the house, and broken open
her desk to get papers, &c. These answers were put in in Ja-
nuary, 1823. There was also an additional allegation, consist-
ing of many pleas, charging the Marquis with various acts of
adultery with Sarah Smith, who lived in the house of his aunt,
Lady Glengall. There was another plea of adultery with Mary
Connel, but this the Advocate said he would not argue, as the
witnesses against his Lordship had been convicted of perjury in
Dublin, and he would not be doing his duty to the Court or to
his client if, under such circumstances, he entered into particu-
lars. He had also introduced a common prostitute, of the name
of Mary Brenan, who, at his request, went to reside with him.
The Advocate relied upon the proof of adultery with Mary Bre-
nan and Sarah Smith. The Marquis had, it seems, given in not
1 less than 47 answers, amounting to a general denial of the
pleas advanced by the Marchibness. He would call the atten-
tkm of the Court to a few. He states that, before his marriage,
he had two natural children. The Marchioness charred him
with concealing this from her, and accused him of being con-
nected with pimps and bastards. This fact was, however,
communicated to her before her marriage, by her brother, or
some other person of her family ; that in September, 1812,
she had written him most affectionate letters ; that he never
attempted to smother her, but he had, upon one occasion
laid a pillow upon her mouth ; that she never attributed her ill
• health to his treatment, but to rheumatism. He declared
that neither at the time articled, or any other time, did he
quarrel with or use violent language to her, nor did he
keep her in a state of alarm or fear ; on the contrary, his
conduct was most affectionate. The, meeting at the Water-
ford Hotel was not for the purpose of adjusting the terms of se-
paration, but of settling property, and she was in the habit of
writing him most affectionate letters, expressing her anxiety to
see him. Whilst in France they stopped at a most respectable
hotel, and she accused him of bringing her to a brothel. There
was some altercation, but lie was not furious, nor did he strike
her. Upon one occasion the Marchioness had written him a-
letter, stating, in substance, that she would not live with any
man who thought another woman, and her children, had equal
claims upon him ; they were not intended for, nor did they un-
derstand each other. There were 25 answers to the articles re-
specting cruelty. With regard to the acts of adultery, the
Marquis insists that the witnesses against him were unworthy
of belief. The entire was a conspiracy, and the evidences were
bribed. He also states that Mary Brenan vas not a com-
mon prostitute, but that she was seduced under a promise of
marriage, and it was upon this subject his Lordship had seen
her; that Sarah Smith never lived with Lady Glengall. The
Learned Advocate concluded by declaring the various acts of
cruelty to .be proved in the clearest manner. The Court
could not have the least doubt that the Marquis had so far
forgotten himself as to have, upon more than one occasion,
inflicted personal violence upon the Marchioness, and that
when such acts were committed by persons of his rank and
station, it followed as a necessary consequence, that instead of
compelling a restitution of conjugal rights, the Court would
grant the wife the right of separation as the only means of pre-.
serving her person.
Dr. JENXER, on behalf of the Marquis, stated, that this
suit, instituted by the Marquis of Westmeath, for the restitu-
tion of his rights, was originally met by the lady with pleas of •
cruelty and violence, after the continuance of this plea for some
time, there was put in another allegation, supplementary to de-
fence, stating a series of acts of adultery by the Marquis, with
a prostitute of the lowest description that can be imagined ;
and with other females of rather a different description. His
Learned Friend had wisely omitted making any precise
statement respecting the plea of adultery added to that of
cruelty, but he must in a particular manner call the attention
of the Court to the plan respecting Mary Connell, scarcely
noticed by his. Learned Friend in the opening, which he thought
proper to make. He was unwillingto trouble the Court with this
part of the allegation at present, but it appeared' to him that
the charges of adultery and cruelty, were so closely min-
gled and depended so materially upon each other, that un-
the evidenccoenewassiolo opaidboen hfotree
bi
the Court,
He would n
t
iesst wnohtoolcomeof
to a fair lo
into the plea of cruelty at present; but
fromthe
cotihiled
nature of the evidence respecting the adultery, he
thought it followed that the acts of cruelty were not supported
by evidence of such a nature as would justify the Court in
coming to the conclusion that the Marquis had used personal
violence, much less would it induce the Court to sign such a
sentence as would authorise the Marchioness to obtain the
right of separation. He would, lie feared, have it in his
power to strew that both parties had trifled with the happi-
ness which their union was intended to produce. The evi-
dences of the adultery with Mary Connel were convicted of
perjury. The charge was completely disproved; the evidence
in support of it was unworthy of belief in a Court of Jus-
tice. The transaction opened such a scene of wilful and delibe-
rate perjury, of conspiracy so systematically carried on by
those who were employed by the Marchioness for the purpose
of collecting evidence, that the Court could not view it
without indignation This circumstance bears strongly and
stringently upon the whole of the evidence. It affects the re:
gestic in such a manner, that so far from signing a sentence au-
thorising the Marchioness to withdraw herself from the alleged
force and violence used by the Marquis, it will direct her to act
conformably with his prayer, and return to her cohabitation as
she is bound by her conjugal vow.
The various proceedings in the cause were then read. The
Iperusal occupied the Court till its rising.—Further hearing
postponed.