The Sun.
London, England, 1870-04-28 00:00:00

THE MORDAUNT CASE

WEDNESDAY.
In the full Court of Divorce, before the Lord Chiel
Baron, the Hon. Justice Keating, and Lord Penzance,
the point as to whether the insanity of Lady Mordaunt
prevents Sir Charles from proceeding with his petition,

was argued.
Serjeant Ballantine, Dr. Spinks, Q.C., Mr. F. A. In-
derwick, and Mr. A. Cohen were counsel for Sir Charles
Mordaunt. Dr. Deane, Q.C., Mr. Archibald, and Mr.
R. A. Searle were for the guardian ad litent (Sir Thomas
Moncrieff).
Serjeant Ballantine, in opening the argument, said that
the came was one of as great importance as
could be, but there could be but little argu-
ment, and that would lie in a very narrow compass.
The real question was whether a person charged with
adultery, and who subsequently became insane, could no
be prOceeded against for the adultery. There were only
two cases in which the same question arose. One was
Borden v. Borden-2 S. and T., which came before
the lAte Judge Ordinary, who thought the petition ought
not to be proceeded with. He (the counsel) would con-
tend that the case named ought not to influence the pre-
sent one, especially as regarded the principle of the thing.
The learned judge who tried the case said that he had
heard from Dr. Bayford of the case, which was heard in
the Ecclesiastical Court, and it was there held that insa-
nity was a bar to a divorce a mense et thoro.
Lord Penzance said he had spoken with Dr. Bayford on
the matter, and found it was not a case that would operate
much.
Serjeant Ballantine apprehended not. The next case
he would refer to was " Mansfield v. Mansfield," tried in
MAssachusetts, United States, which was a wife's action.
Tne husband was said to be insane, and the court held
that the divorce could be proceeded with.
The Lord Chief Baron : Was the respondent the
lunatic?
Serjeant Ballantine : Yes; and it is all fours with the
present case.
Lord Penzance : You don't know the law of Massa-
chussets, do you!
Serjeant Ballantine : No; but I apprehend that adul-
te is the same all over—
Lord Penzance said that was so; but in this country
there was such a thing as recrimination.
Serjeant Ballantine went on th say that a lunatic might
bring a divorce, as vas laid down in Parnell v. Parnell,"
2 Consistory Reports, where the matter was fully dis-
cussed. He would argue that, as a lunatic had power to
bring a divorce, the other party had a right to re-
criminate. If the respondent alleged adultery,
how could the case be proceeded with ? It
amounted to this. that a lunatic could not be
accused of adultery, and yet he was able to charge another
with it. His proposition was that the power was a
discretionary one, and vested in the court. He did not
see any more hardship in this case than in one where
witnesses were insane, but likely to recover. In such cases
the courts had over and over again allowed the witnesses to
be called when well. He would now refer to the case.
both in a criminal and civil point of view. His proposi-
tion, firstly, was that marriage was prima facie a civil
contract ; though the parties might make it a matter of
religion. If persons entered into the contract of marriage
ha apprehended they would be bound to carry it out.
The Serjeant then went on to say that at one time
adultery was punishable by death, and at the time of the
Restoration there was an Attempt to make it a penal
offe ice. That failed, and they must therefore take it
now as a civil offence. In the case of " Owen v. Davies,"
1 Vesey, p. 82, there was a Bill to enforce a contract on
a person who was sane and then became insane. Lord
Hardwicke said that equitably he must decide that the
contract must be fulfilled. In another case reported in
Vesey, p. 590, it was held that a lunacy was no defence to
a petition for bankruptcy, though it might be against an
action. He would argue that it was decided that in
ordinary civil contracts lunacy was no bar
to proceedings as to criminal law; in common law a
lunatic could not be called on to plead or even be executed
if he became insane after sentence had been pronounced,
He conceived that in every case brought before a judge
that functionary could determine how long a delay could
take place ; but not such a delay as would seriously affect
the rights of one of the parties. When he came to look
as to which side the hardship would lie he could not but
think that it was against the husband. If there was a
possibility of counter charges there were plenty about
who could make them.
Lord Penzance said that when the statute passed,
first giving the Court power of dissolving marriage, it gave
it, subject to certain conditions in the interest of the
public, and subsequently the Queen's Proctor was ap-
pointed to see those conditions were not broken. These
conditions were non-condonation, non-collusion, freedom
from adultery or cruelty on the part of the petitioner, &c.
It was found impossible to prove these bars, as both
parties were excluded from giving evidence. That raised
the most important question, seeing that the right given
was a conditional one, and that the proof must rely in a
great measure on the wife; and before the husband could
get the benefit of the statute, he must have a sane
wife, who could be examined. By the late Act the wife
could be examined. His lordship would like to have that
point fully argued.
Serjeant BALLANTINE said that an analagous case was
that where a person was charged with a crime and his
wife could not be examined. In a case of perjury he re-
membered that a woman living with a man as his wife
was called, and the man acquitted in consequence of her
evidence. Had she been his wife she would not have
been called. Their lordships would see that there were
often hardships arising, and he would refer to Lord Pen-
zance to corroborate him in saying that a wife's evidence
was seldom taken into cognizance by the court, without
taking into consideration the surrounding circumstances.
Dr. SPIN/IS, Q.C.' followed on the same side. Ho
said that in fact the order permanently stayed pro-
ceedings unless Lady Mordaunt became sane. Lord
Penzance did not profess to give any opinion of his own ;
but simply to follow the precedent of Sir Cresswell
CresswelL
Justice Keating : The Judge Ordinary says that is so.
So you will not be fettered by that.
Dr. Spinks, Q.C. went on to observe that it was not
till last April that the guardian interfered. It was by the
delay so occasioned that the bill allowing the evidence of
the wife was passed ; so that it was by mere accident that
the case was not heard when the evidence of the wife
could not have been received.
Lord Penzance said that the wife could have been called
to speak to the conduct of her husband— how he treated
her and other matters, though not as to actual adultery.
Dr. Spinks would admit that the cause could not be as well
tried as if the wife were sane. But the lunacy of one
person could not affect the rights of another. Lord
Stowell had held that the committee on a lunatic could
institute proceedings for a divorce on the ground of
adultery.
The Lord Chief Baron asked if in the case named the
wife could not recriminate and put the lunatic on his
defence,

Dr. Spinks : Undoubtedly.
The learned counsel went on to speak of what would be
the effect of carrying out Lord Stowell's argument on the
present law. The lunatic might be the respondent, and
recriminate, and the petitioner withdraw. Could the
lunatic go on? If so, why not be proceeded against?
In the American Courts it was allowed that if the
wife of a lunatic committed adultery she
could be proceeded against. In the case of
"Dolman v. Dolman," House of Lords reports, the Lord
Chancellor never seemed to think of not altering the status
of a married woman because she was insane. The
Divorce Court has assumed the functions of the
House of Lords, so that the case quoted was of great
importance, as skewing that their lordships never looked,
at the insanity as a bar. Every one of the discre-
tionary bars was considered by the House of Lords in the
conduct of the petitioner himself.
Mr. F. A. Inderwick, on the same side, proceeded to
comment on the words of the order, which gave the peti-
tioner leave to apply again to the court, when he could
say that the respondent had recovered her sanity. That
practically was an end to the proceedings, or might be so.
It was like the case of a witness where the Judge at
Chainbers said, let proceedings be stayed until Aor B
returns.

Lord Penzance said the point need not be laboured. He
made the order for the purpose of raising the question as
to whether a man could go on even if his wife were
insane.

Mr. Inderwick was referring to the case of " Borden v.
Borden," when
Lord Penzance said that he had sent for the papers in
the case, and Sir Cresswell Cresswell's actual order was
"This case cannot proceed."
Mr. Inderwick went on to comment on the remarks
of Lord Penzance as to the right of recrimination.
In the present suit it was not sought to punish the person
who was guilty, but it was one of a civil character—to
give a remedy to the party who had his or her contract
broken. In cases of murder, no doubt a man would
not be executed if insane, but would the court
say that if a petition was filed, and the re-
spondent subsequently became insane it could
not be proceeded with ? With regard to the rights
of a lunatic at common law, it was laid down that in a
case of trespass a lunatic could commit that act thong]_
without design. In Borrodaile v. Hunter it was reported
that a lunatic might be proceeded against for trespass, as
the case was one of injury and could be paid for. In
Tyrell v. Jenner the defendant was a lunatic, and the
plaintiff attempted to get the next presentation
of a living. The question arose as to_ service on the de-
fendant and it was held to be a good one.
The Lord Chief Baron said that it was no use to labour
the point. It was established that for debt or damages a
lunatic could be proceeded against.
Mr. Inderwick said he would come to the words of
Lord Penzance where he said that the Court felt diffi-
culty in hearing a case where the respondent was insane.
That seemed to presume that there was a defence. But
the court must not assume that even if there is a case
against the petitioner that it will be brought forward, as
experience taught the contrary. Then it was said that
the public had an interest, and the Queen's Proctor was
appointed ; but his intervention was not necessary where
the respondent chose to refrain from a defence. In another
view, suppose a man was wrecked and could not get back
within the two years required for a legal desertion, the
court in his absence had made a decree.
Lord Penzance : But it would not if it knew that he
had been so wrecked.

Mr. Inderwick : No ; but if he was found to be in corn-
rnuni.mtion with any friends, those friends could be
served. In the present case the respondent was away,
and not of her own free will. _ _

Lord Penzance : Suppose Lady Mordaunt's father
would not have anything more to do with the case.
Mr. Inderwick thought that the Court of Chancery
would appoint a committee, or the Queen's rroctor mightNVAPPOUI64 i the interests of tho publio, 2hQ btula

counsel went on to say that by the order of Lord Pen-
zance it was left for the husband to come to the court and
bay that his wife was insane. He would apply the same
Jule in the present case as was applied in common law to
waterial witnesses ; and in the position of a material
witness, Lady Mordaunt, with regard to the public,
stood.
Dr. Deane, Q.C., for the guardian ad litem, said that he
had not been able to find whether his friend said the order
was not a good one. His argument was that if the case
was allowed to go on pending the sanity of the respondent,
marriage was not a contract, but a status. The judgment
would not be in personam, but in rem. The case of
Borden v. Borden, as it stood in the books, was no doubt
a decided case in point ; but that rested much on the case
of King v. King. He had searched and found that it was
there laid down that there being an alleged insanity when
the adultery was committed the judge suggested it could
not be the cane if the respondent was insane.
The Lord Chief Baron said that the case was not a deci-
sion : it left the matter in doubt.
Dr. Deane went on to comment on the case
reported in Massachussets, "U.S. In another case,
which. occurred in Alabama, it was held that as insanity
in itself was not sufficient for a divorce, that which arose
from it could not be so either. And again, Mr. Bishop
laid it down that though recrimination was settled in this
country, such was not so in the States. With the excep-
tion of " Gordon v. Gordon," there was no authority, as
in all instances it was said that at the time of the adultery
the person was insane, and not as now, that at the time
of the service of the citation such was the case.
The Lord Chief Baron said they must not lose sight of
the fact that there were two ca-respondents in the case.
Lord Penzance said that they could go against them for
damages. _

Serjeant Ballantine said then they could allege that the
wife was a material witness, and they would be in pretty
much the same condition.

Dr. Deane went on to say that his learned friend had
argued from " Parnell v. Parnell," that the respondent
might become a quasi petitioner, and, though being
insane, could go on. If that occurred, he thought the
learned judge who presided might stop her.
The Lord Chief Baron said if the statute did not give
the power, the judge could do nothing.
Dr. Deane said the judge could, by simply saying that
the case should not be heard till such and such a date.
" Parnell v. Parnell " was worth considering. Dr. Deane
proceeded to refer to what was called the hardships of the
case. The court could not, of course, assume the respon-
dent's guilt. There could be no offspring as there could
be no access.

Lord Penzance observed that Dr. Deane put the case as
if the wife were insane and an innocent wife ; but if on
the other hand, she was guilty of adultery, it would be a
hardship on the husband to have to live with her after he
had discovered it. Of course he only put a hypothetical
case.

Dr. Deane said that the hardship would be nothing to a
wife being innocent, and in a few years recovering her
reason and finding herself divorced.
The Lord Chief Baron said nobody doubted the power
of the judge to put off a suit : but Dr. Deane had to
address himself as to whether a judge had the power to do
an act that might put an end to the suit altogether.
Dr. Deane went on to say that though the Act of last
session made the wife a probable witness, prior to that,
she could be asked questions.
Mr. Archibald addressed the court on the same side.
He contended that the functions of the court were
purely judicial, and unless the Act gave the
power of hearing a case in a party's absence, it
had no power to do so. There were plenty of instances
where it was held to be unjust to hear cases in the absence
of the other party, though of course this theory was liable
to qualification. It was frequently laid down as being
against the dignity of a judge to levy a fine or take a recog-
nizance from a lunatic. From this he argued that the
law did not allow a citation to be served.
Lord Penzance Then comes the question whether the
court had not the power under thee h
to hear a
guardian.
Mr. Archibald contended that it did not. If such were
to be the case, it would carry out the term of being
naturally unjust. In referring to what the other side had
termed the hardship of the case, it would not weigh at all.
They were there with not even a prima facie case.
Mr. R. Searle, on the same side, would not enter into
a lengthened argument after the speeches of his
friends. To go on with the case now would be
informal, as there had been neither substituted or personal
service. If the Act had meant to provide for such a case
it would have named somebody to appear for the respon-
dent.
The Court adjourned at four o'clock, and Serjeant
Ballantine will reply to-morrow (Thursday).

FROU-FROU " AND THE QUESTION OF
INTERNATIONAL COPYRIGHT.

WEDNESDAY.
In the Court of Vice-Chancellor Sir W. M. James to-
day, the cause of Wood v. Chart was investigated. This
was a bill presented, with the view of preventing the de-
fendant, Mr. Nye Chart, proprietor of the Brighton
Theatre, from performing the five-act French comedy,
" Frou-Frou," at his place of amusement, the plaintiff
having become entitled to the translation by purchase
from the French authors, MM. Meilhac and Halevy.
The question involved was an important one, namely,
whether foreign dramatic authors under the existing
International Copyrights Act, or by virtue of any con-
vention confirmed by order of Council, are really able
to secure a marketable property in their productions in
this country. The case having created considerable in-
tenst, a large number of profesional g ;ntlemen were pre-
sent in court whilst the case was ihoca.ding.
Mr. Eddis, Q.C., and Mr. Beale were counsel for the
plaintiff • and Mr. Kay, Q.C., and Mr. Lindley for the
defendant.
Mr. Eddis, in openinr, the case, said the real question
at issue was whether the play which had been performed
at the defendant's theatre was a piratical translation or a
fair adaptation. Within three months of the publication
of the play in France the provision of the International
Copyrights Act was complied with by the registration of
the play at Stationers' Hall. The comedy was
first
.produced at the Theatre du GymnAse,
in Paris in October, 1869, and the authors then notified
their intention of reserving their right of translation, but
on the 18th of January following they assigned to the
plaintiff, who was a music-seller, carrying on business in
Regent-street. London, the right of representation, whether
in English or French, in England. The piece was duly
translated by Mr. Sutherland Edwards, and pull:dished in
The Musical World, which translation was acknowledged
by the authors. Subsequently Mr. Benjamin Webster,
jun., intimated his intention of producing on the London
stage a translation of the piece, but to this the plaintiff
objected, and threatened to apply for an injunction in
Chancery to restrain him if he persisted in his intention.
The production of Mr. Webster's translatiol on the
London stage was abandoned for a time, but a short
time afterwards it was presented at the Theatre Royal,
Brighton, the characters being precisely the same as in the
original piece with the exception of a very subordinate
one, which was entirely omitted, while the scene arrange-
ments differed in no material point whatever. The plain-
tiff prayed, consequently, that the defendant might be
restrainedby injunction from representing at Brighton and
elsewhere the play in question, and that an account might
be taken of the loss which hehad sustained in consequence
of the defendant's proceedings. Mr. Eddis added that in
Mr. Edward's translation the French names had been
Anglicised ; but the characters were identical, and the
dialogue, the sequence of events, and entire plot precisely
the same as in the original. It was true that there were
several omissions in the plaintiff's translation, but the
translation contained all the essential elements of the
original, and what was of more importance, in its bearing
upon the issue of the cause, had obtained the sanction of
the authors.
Mr. Kay contended for the defence that the production
of Mr. Webster, jun., was a fair adaptation of the French
play. The material point was to define the distinction
between a translation and an adaptation, and he argued
that in a case where no less than 141 out of somethinc, like
400 speeches were omitted, it could not be regarded as
a translation. Madlle. Beatrice, who was con-
nected with Mr. Chart as defendant, first
saw the play at Paris, and, being desirous
of having it produced in England, she made bond fide
arrangements to that end with Mr. Webster, and the
piece was actually in course of preparation when the
plaintiff's interference occurred. It was not, therefore, a
case in which, even if the defendant had erred, the court
could properly grant the extraordinary relief of an injunc-
tion, but merely damages.
Mr. Lindley pointed out that Mr. Webster, in his affi-
davit, stated that his adaptation was such as was usual
and fair amongst theatrical adaptators. Mr. Horace
Wigan, who as a French scholar was scarcely inferior to
any in the c nintry, averred, too, that the plaintiff's was
not a translation of the original comedy at all. Looking
even to the title of plaintiff's supposed translation the
defects were obvious, for nobody could say that " Like to
Like" was a translation of " Frou-Frou.'
The Vice-Chancellor : It would be rather difficult I
Ihink, to translate " Frou-Frou." It is intended to repre-
sent the rustling of silk, and that would be just the same
in French as in any other language, (Laughter.)
Mr. Lindley continued that the plaintiff's play was
merely a version of the original, and the defendant could
not therefore be liable. The business of a translator was
not to omit, nor on the other hand to invent or interpolate,
and all this Mr. Edwards had done.
The argument was proceeded with until 4 o'clock,
when the Court adjourned.

ILLEGALLY STORING PETROLEUM—A tradesman
has been fined at Manchester for keeping 330 gallons of
petroleum within fifty yards of a dwelling-house or build-
ing in which goods were stored. The defence was that
the stuff was intended for booth-keepers at Knot Mill
fair, and that it was only in the yard about a quarter of
an hour. The petroleum was forfeited.
S.P.G.—The Guardian, noticing the condition of
the Society for the Propagation of the Gospel, has reason
to believe in the truth of a recent statement that the ex-
penditure of that society in administering funds of about
£90,000 a year, is no less than 212,000. Nearly half of
this immense Burp- goes to defray the expenses of the
various "deputations," by whom meetings are held and
At the last meet-
isneormaonlestpterleawcashedrinewalidfroofmthtehseocheetyv..
Lryrner Belcher,
offering. to give £5 for every £l,OOO collected for a new
house for the Society.

Ulric de Fonvielle presided at one of the public
meetings respecting the Plebiscite held in Paris, the
manner in which the malcontents should protest against
it being the subject of discussion. At another meeting,
at which three thouscnd persons assembled, M. Lissa-
garay, who has lately been released from Sainte Pelagie,
presided. M. Raspail has addressed a vehement letter
to the electors of Lyons and of Paris, exhorting them
strenuously to vote "No " on the day of the
by P. 49041 they Will do a good action.