The Sun.
London, England, 1840-06-08 00:00:00

ROLLS' COURT.--(THIS DAY.)

ENGLAND DOWNS AND OTHERS.-JUDGMENT.
The bill in this case prayed that a settlement made for
the benefit of the plaintiff and her two sisters by their late
mother, Joan Mason, who became the wife of the defendant
Broad, might be carried into execution. Joan Mason was
a widow, with three children, and, under the will of her
first husband, was entitled to certain freehold and lease-
hold property, some furniture, and the stock in trade with
which she carried on business.as a victualler. Contem-
plating a second marriage, she desired to make a pro-
vision for her cbildren by the first husband, and being in-
formed that a will which she had made would, upon her
second marriage, become ineffectual, she made a settle-
ment, and thereby provided that a portion of her freehold
property should be subjected to her own power of appoint-
ment, but that, in default of the exercise of such power of
appointment, the part of her property. over which it ex-
tended, together with the rest of her property, should be
limited to her own separate use for life, with remainder
to the benefit of her three daughters, in the manner men-
tioned in the settlement.

The MASTER of the POLLS, in giving judgment this
morning, observed that Joan Mason, in executing that set.
tlement, so far as it made provision for her children, was
performing a moral duty. It was her duty, before she
placed herself and property in the power of her second
husband, to secure a provision for her children by her first
husband ; but in performing a duty to her children, she
had no right to act fraudulently towards her intended hus-
band. It a woman entitled to property entered into a
treaty for marriage, and during that treaty represented
that she was possessed of certain property which the hus-
band would become entitled to, and if during the same
treaty she clandestinely dealt with that property, so as to
defeat his marital right, and secure the use of it to her-
self, and that concealment took place till the mar-
riage was effected, there could be no doubt that was
a fraud on the husband, and that in such a case he
would be entitled to relief. But the equity in these cases
rested upon whether the facts showed there was fraud
against the husband. It has been argued that mere con-
cealment in such cases was no evidence of fraud, and that
if a man, without making any inquiry as to a woman's
affairs and property, thought fit to marry her, he must
take her and her property as he found them, and had no
right to complain if, in the absence of precaution on his part,
she had tsken care of herself and children without his
knowledge. That proposition, however, his Lordship ob-
served, could not be admitted as stated. A woman in such
circumstances could only reconcile her duties by making a
proper settlement on herself and children with the know-
ledge of her intended husband. Cases had occurred in
which concealment, or rather the non-existence of
communication to the husband, had not been held frau-
dulent, and whether fraud was made out must
depend on the circumstances of each case. As an unmar-
ried woman had a right to dispose of her property as she
pleased, and as a conveyance made immediately before the
marriage was prima jade a good conveyance, it could be
impeached only by the proof of fraud. In the present
case, the plaintiff alleged no fraud was proved ; and that
even if there were any circumstances which tended to
create a doubt, they ought to have no weight, no regular
proceeding having been adopted to set aside the settle-
ment. The defendants insisted fraud was proved ; that
during the time of the marriage Mrs. Mason was in re-
ceipt of the rents of the leasehold property, and apparent
owner of the chattels ; that the settlement was concealed
from her husband during the marriage ; and that he never
acquiesced in it. The settlement was executed in August,
1818, and the marriage did not take place till the
October following. In Bones v. Strathmore, on
the 10th of January, when the settlement was made,
Mr. Gray was the intended husband of Lady Strathmore;
brit on the 17th of the same month she married Mr.
Bowes, who cemplained of the settlement; but in that
case Lord Thurlow thought that marriage in general was
the object of Lady Strathmore, and such might have
been the object of Mrs. Mason. There was no sufficient
proof that a treaty of marriage was subsisting between the
defendant Broad and Mrs. Mason at the time the settle-
ment was executed. There was no sufficient proof of con-
cealment up to the time of the marriage; and even if
Broad did not know of the settlement at the time of the
marriage, he did know of it not long afterwards, had per-
mitted his wife to act in execution of the power given her
by the settlement, and did not use any attempt to set it
aside upon any proceeding of his own, and under those
circumstances, and upon the evidence before him, the
Court was bound to give the plaintiff the relief which she
asked.

QUEEN'S BENCH.-(THIS DAY.)

(Sittings in Banco.)
THE QUEEN V. HETHERINGTON.

The defendant, who stands indicted for the selling of a
blasphemous libel, and who had been summoned to attend
at the striking of a Special Jury this day to try the case,
made application to the Court this morning to be tried by
a Common and not a Special Jury, as a Special Jury was
not a Ivy of his peers. He was proceeding with his ad-
dress when he was interrupted by the Court, and desired
to file an affidavit, setting forth the grounds of his appli-
cation, when the Court would hear his argument on the
subject.