The Sun.
London, England, 1859-07-11 00:00:00

COURT OF COMMON PLEAS.

SIMAIONS V. HALE AND ANOTHER.-AN EXECUTION
AT THE LYCEUM.
The plaintiff in this case had obtained a judg-
ment against Mr. Faulkner, and during that gen-
tleman's connection with the Lyceum the plaintiff
issued an execution against him for £55 4s. The
writ was placed in the hands of a sheriff's officer
named Willis, who did not levy, but returned the
writ with the endorsement that there was no goods
or chattels of the defendant within the bailiwick
on which he could levy. The plaintiff now claimed
damages, on the ground that this was a false re-
turn.

Mr. Huddleston, Q.C., and Mr. Laxtbn appeared
for the plaintiff; Mr. Hawkins, Q.C., and Mr.
Quain for the defendants.

The facts were that, on the 4th of April, the
plaintiff directed the officer to go the Lyceum with
the writ, and on the same evening he went, accom-
panied by Strong, his assistant, and by a gentle-
man who represented the plaintiff. It was Mr.
Kingsbury's benefit. The officer declined to seize
the money which was taken at the doors ; and he
was then told that there were on the premises some
orchestra stools, seats, and music, which belonged
to Mr. Faulkner ; but he also declined to seize
them. He was told that Mr. Faulkner lodged in
Upper Wellington-street, and on the sth he went
there, but did not levy, though, according to the
plaintiff's case, there were there tables, chairs, car-
pets, bedding, &c., and, in addition, some clothes,
all belonging to Mr. Faulkner. The clothes were
subsequently valued, under process from the Insol-
vent Court, at £l9 17s. Of the clothes, however,
£3 worth were in wear at the time.
The case for the sheriffs was, that there was
nothing upon which they could have levied. The
money taken at the theatre on the 4th did not
belong to Mr. Faulkner but to Mr. Kingsbury,
who would have had a right of action if
the officer had touched it. Mr. Kingsbury's evi-
dence was, that the whole amount taken that night
was £26, and it all went to him. Further, it was
said that there was no duty imposed upon the officer
to stand at the door and take the money, and he had
not power to take the money away from the people
as they came to pay, nor had he power to take it
from the money-taker when it had got into his
hands. To take it from either party would have
been a trespass. Even if the £26 had belonged
to Mr. Faulkner, still there was £6l due for rent,
which would have absorbed it all. It was sworn
that Mr. Faulkner had no property at the theatre
at all. On the sth it was said that the money
taken at the theatre belonged to Mr. Arnold. As
to the lodgings in Upper Wellington-street, the
furniture belonged to the landlady. As to the
clothes, they were only worth £9, and the fee for
seizing would have been 95., leaving the balance,
£8 1 ls. Three pounds worth of the clothes, how-
ever, were in wear, leaving only the value of £1 lls.
that could be seized. It was provided by statute
that the sheriff might leave wearing apparel not
exceeding in value £5. Before the Sheriff could
remove the clothes he must have paid the 'rent £7
165., or at all events four weeks of it, which
amounted to £6. Under these circumstances it was
contended that there was no source from which the
plaintiff could have derived any benefit under the
execution.

The jury found a verdict for the defendant.
YATEMAN V. DEMPSEY.-AN UNFORTUNATE
MARRIAGE.
This was an action to recover damages, upon the
ground that the defendant had not performed his
promise to attend in the Divorce Court. as a wit-
ness for the plaintiff, in a suit which he had insti•
tuted for the purpose of getting his marriage an-
nulled.

Mr. Macaulay, Q.C., and Mr. Fear appeared for
the plaintiff, and Mr. Sergeant Pigott for the de-
fendant.

It was stated by counsel that the plaintiff, who
was 29 years of age, was a barrister, and seven
years ago he and his brother, who was his junior by
one year, went to lodge in Berners-street, where
they intended to pursue their studies. Oa the
opposite side of the way there lived a foreign
family, consisting of two elderly and two very
young ladies. There was something very fasci-
nating in these young ladies, and ultimately the
plaintiff and his brother each married one of them.
The intercourse which the plaintiff had with the
lady whom he married was very slight, for they

were seldom permitted to be alone, but she con-
trived to impress him with the notion that she was
a sort of imprisoned heroine, that there was a con-
spiracy to make her marry some one against her
will, and in one way and another she inspired him
with the earnest desire to rescue her. They eloped
and were married at Gretna-green. They had not
been married 24 hours, when she revealed to the
plaintiff, with cries and tears, that she had been
subjected to outrages of the most extraordinary
description. The consequence was that the plain-
tiff packed up his things at once, it having beea
agreed that they should not live together, and at
five a.m. he left, the apartment, and was going down
stairs, when he heard shrieks and shrill laughter
and he saw his wife dancing about in her night-
clothes, and calling him to come back, for all she
had said was pure imagination. He went back,
and lived with her on and off for four or five years
a life of extreme wretchedness. Her conduct from
time to time was monstrous and extraordinary. A
determination to live in idleness and filth was one of
her main characteristics. She would lie in bed for
weeks, and her linen got into such a state that it had
to be burned. The defendant was a medical man, who
in August, 1857, was living at Long Eaton, in
Nottinghamshire, and on the 10th of that month
he advertised that he should be glad to take care of
a lady of unsound mind. The plaintiff answered the
advertisement, and afterwards sent his wife to the
defendant, who, on the 17th September, reported
his opinion that she had a morbid perversion of na-
tural feelings, and a disposition to vice—that she
was incapable of thinking correctly, and that she
had absurd prejudices. The plaintiff had the greatest
difficulty in acquiring any information as to his
wife's habits, &c., before his acquaintance with her
commenced. He employed the defendant to make
inquiries, and to study her symptoms, principally
with the view of ascertaining her state of mind at
the time of marriage. Dr. Winslow was also con-
sulted about the case. Afterwards the plaintiff com-
menced a suit to annul the marriage, upon the
ground that his wife was not of sound mind, and
capable of making a contract at the time of marriage.
In December last the suit was ripe for trial, and on
the Bth the defendant promised the plaintiff that
he would attend the Divorce Court next day to give
evidence. The defendant, however, was not sub-
pcenaed. On the day of trial the plaintiff was ex-
amined, but the defendant -lid not make his appear-
ance then, nor on the following day. The conse-
quence of the defendant's non-attendance was that
the plaintiff's counsel had to withdraw from the
cause, and £6OO or £7OO was thrown away in law
costs.

The plaintiff was examined in support of the
statement, and in his cross-examination he said he
did not think it was his own evidence which had
destroyed his case. He had separated from his wife
several times. He had two children by her. He did
not think he cohabited with her as late as 1856.
She was now with her friends in Germany. Some
of his own friends believed that she was not mad.
He had heard his father express opinions both ways,
and his brother Henry had also done so.
Mr. Venning, the plaintiff's solicitor, was called,
and he produced a statement of the evidence which
the defendant was to give in the Divorce Court.
The defendant stated, among other things, that
the plaintiff's wife was with him from August,
1857, until March 17, 1858, and the first thing
that struck him was her his eyes because he
was rather awkward in assisting her on to her
horse. He told her that he had family prayer night
and morning, and she said it was all nonsense, and
that she had been brought up to believe that there
was no God. He sent the parson to talk to her and
soon afterwards found her chasing him round the
room with a pillow, and holding up her clothes to
enable her to follow him quickly. He (Mr. Demp-
sey) went in, and she hit him on the head with the
pillow for interfering. She afterwards played at
bagatelle, and asked the clergyman to place the
balls for her, but when he did so she hit him with
the cue. She was very filthy in her habits. She
spurted water down his (Mr. Dempsey's) back,
threw bread at him, and threatened to use a knife
to him. On one occasion he asked her to have a
shock from a galvanic battery, but she declined, and
on his placing it against her neck, but without com-
municating any shock, she stabbed him in the arm
with her scissors, and laughed at what she had done.
She on another occasion said the sides of her head
and her body were growing out, and would not be
convinced to the contrary, although her sense of
touch was appealed to.
Mr. Serjeant Pigott submitted that there was no
case to go to the jury to prove that the defendant
had contracted to dispense with a subpoena.
His Lordship doubted whether the plaintiff had
made out any case, but he thought it best to
leave the matter to the jury, giving the defen-
dant leave to move. He apprehended that under
ordinary circumstances an action would not
lie on a promise to attend as a witness, because
them would be no good consideration. The ques-
tion here, however, was whether the attendance as
a witness was incorporated into the original em-
ployment.

- Sir. Sergeant Pigott—And upon the question of
damages there was no evidence the.t the result
would have been different if the defendant had at.
tended as a witness. It was absurd to think of
annulling the marriage under the circumstances.
The defendant was called, and he said there was
a balance of £77 due to him, and that the day be-
fore the trial he called on the plaintiff, and said h 3
must have £lO. or he would throw the matter up.
The plaintiff said he would not pay him then, but
would do so after the trial. Witness said he must
have it then, but he did not get it.
Mr. Justice Byles, in summing up, said that in
all his experience he had never known an action of
this kind before, but his opinion was that an action
would lie on a promise to attend as a witness if that
promise was made for good consideration.
The Jury, after a short absence from court, found
a verdict for the plaintiff—Damages £5O.