The Sun.
London, England, 1859-08-27 00:00:00

ASSIZE INTELLIGENCE.

NORTHERN CIRCUIT.—LIVERPOOL, AUG. 26.
(Before Mr. Baron Watson.) ,
BOYLAN Y. GODFREY.
This was an action to recover compensation for
the alleged negligence of the defendant, an attor-
ney at Liverpool, in conducting the defence of the
plaintiff to a petition filed by the plaintiff's wife in
the Divorce Court for a judicial separation, in not
pleading and proving the adultery of the plaintiff's
wife, whereby the plaintiff was decreed to pay £1
a-week to his wife, who was judicially separated
from him.
Mr. Monk, Q.C., and Mr. Brett appeared for the
plaintiff; and Mr. James, Q.C., and Mr. L. Temple
for the defendant.
It appeared from the opening speeoh of the learned
counsel for-the plaintiff and from the evidence that
the plaintiff was married at the German Church in
Dublin in 1833, and that after the marriage he and
his wife cohabited together, and had seven children,
two sons and five daughters. At the time of the
marriage the plaintiff did not believe it to be a va-
lid marriage. After three children were born the
plaintiff and his wife lived at Waterloo, near Liver-
pool, where the plaintiff's wife let lodgings. They
then separated, and the plaintiff allowed his wife
a separate maintenance. In May, 1858, the
plaintiff's wife filed a petition in the Divorce
Court for a judicial separation, and through the
introduction of a man named Boosey, the plaintiff
made the acquaintance of the defendant, who is an
attorney at Liverpool, and whom he instructed to
take the necessary proceedings to defend the peti-
tion. The plaintiff instructed the defendant to
deny the general validity of the marriage, and also
to deny the allegatians contained in his wife's pe
tition of cruelty and adultery, and also to allege
against his wife that she had been guilty of adul-
tery, and he gave the names of the witnesses to the
defendant who could prove the fact of adultery
committed by the wife. At the trial the question
of the marriage was adjudicated against the plain-
tiff, but to his surprise he found that nothing was
said, nor was any inquiry instituted, regarding the
alleged cruelty, which he denied, nor regarding his
wife's adultery, which he was prepared to prove ;
and he subsequently discovered that the plea
which would enable his counsel to raise this de-
fence had been omitted from the record, and this
was the negligence complained of. The result was
that the Divorce Court had decreed a judicial sepa-
ration against him, he had had a large sum of
money to pay to the defendant for conducting his
case, had been saddled with the costs of the suit,
and was ordered to pay £1 a week to his wife for
the remainder of her life, she being now but 46
years of age. The • plaintiff denied the cruelty
alleged, and believed that his wife had committed
adultery, and had fully instructed his attorney to
set up these defences to the proceedings of his wife
in the Divorce Court, but the defendant, with full
knowledge of the facts, had neglected to put the
pleas on the record which enabled him to set up
these defences, and for this negligence the action
was brought. The plaintiff, who was sworn, denied
the cruelty imputed to him on oath, and swore
that he could prove that his wife had com-
mitted adultery both at Waterloo and in
France, and that he had given the particulars
to the defendant's clerk, who took them down in
writing, and also the names of Mary Bowles and
Margaret Hanlon, his witnesses. He had paid the
defendant upwards of £2O in advance to conduct
his case and take the proper steps for his defence
against the petition, and had procured the attend-
ance of his witnesses in London when the case came
before the Divorce Court in November last, but the
defence which he had instructed to be raised he
was told could not be gone into, and a judicial sepa-
ration was decree], with £1 a week alimony to be
paid by him. It appeared on cross-examination
that the plaintiff was now living with his house-
keeper, and that he had lived and cohabited with a
woman named Russell, that he had frequently left
his family in want, and had neglected to pay the
alimony to his wife which he had been decresd to
pay.
The ease was adjourned last night to this morning.
On the part of the defendant it was proved that
the instructions of the plaintiff were found, on exa-
mination, to be frivolous, and that there was no
ground for imputing adultery to his wife, and there-
fore a plea setting up that defence had not been
placed on the record. The wife of the plaintiff was
placed in the box, and she denied on her oath the
facts charged against her imputing adultery, and
her daughters proved that, so far as they had ever
observed, the conduct of their mother had been
exemplary.
His Lordship, in directing the jury, told them
that it was the defendant's duty, if satisfied on the
evidence before him that there was no ground for
imputing adultery to the wife, not to place a plea
on'the record which was frivolous, and could only
lead to an useless waste of the public time.
The jury found a verdict for the defendant.
(Before Mr. Justice Hill and a Special Jury.)
GARDNER AND OTHERS v. CATALAN GENERAL IN-
SURANCE COMPANY OF BARCELONA.
Mr. Edward James, Q.C., and Mr. Mellish were
counsel for the plaintiffs; Mr. Wilde, Q.C., and Mr.
Rew for the defendants.
This was an action on a policy of insurance for
£BOO on the freight of the ship Blorenge, on a
voyage from Mazatlan, on the west coast of Mexico,
to the United Kingdom. The defendants pleaded
that the vessel was not se tworthy, that the plain-
tiffs knew of her 1 ss at the time that the policy
was effected, and that the plaintiffs had induced
the defendants by misrepresentation to grant the
policy. The vessel was chartered in February,
1858, for the voyage in question, and £l,OOO was
insured by another company on her freight and out-
fit. On the 3d of August, 1858, the plaintiffs re-
ceived a letter from the captain, dated Mazatlan,
the Ist of June. On the latter day they applied to
Mr. Deacon, an insurance agent at Liverpool, to
procure another policy on the freight for £l,OOO.
Mr. Deacon put himself into communication with
his London correspondents, and through them ob-
tained on the 6th of August an offer from the agent
of the defendants to insure £BOO at 60s. per cent.
This offer was, on the 7th, communicated by Mr.
Deacon to the plaintiffs, who instructed him to
accept it. An insurance for £2OO was, at the same
time, effected with underwriters. On the 10th of
August the loss of the vessel, by driving from her
anchor upon the bar at Mazatlan on the 11th of
June, was announced in Lloyd's List, which the
plaintiffs swore was the first intelligence they had
of it. The news was known in London the day
before, the 9th, and the broker in London who
transacted the business with the defendants' agent
announced to him, on that day, at the same time,
that his offer was accept9d, and that the vessel was
lost. On the 2d of September the plaintiffs got, by
the same packet, four letters from the captain, the
first dated in May, and the other three in one en-
velops and dated respectively the 2d of June and
Ist and 4th of July. That of the Ist of July gave
details of the loss of the vessel, and stated that the
crew were saved. The defendants instituted in-
quiries, and were informed that letters from Mazat-
lan, 'lated the 14th of June, three days subsequent
to the loss of the vessel, had been received by
Messrs. Murietta,in London, on the 2d of August,
which, however, did not mention anything abofit
the Blorenge. Prior to the 2d of September the
plaintiffs appeared also to have stated to some of
the friends of the crew that the latter were
saved. It also appeared that the real value of
the. freight was between £1,400 and £1,500 only:
From these circumstances the defendants contended
that it might be inferred that the plaintiffs had
news of the loss before the defendants' policy was
effected.
The learned judge, in summing up, observed that
the burden of proof that the plaintiffs, previously
to effecting the insurance,, knew of the loss, rested
upon the defendants ; that tho mode in which the
loss of the ship was mentioned in Lloyd's List—
viz., that it was feared the vessel and cargo would
not be recovered, without mentioning the crew,
would naturally induce the plaintiff's to suppose
that the crew were saved, and that the plaintiffa