The Sun.
London, England, 1857-04-24 00:00:00

THE AIOUNTGA.REETT PEERAGE CASE.

__—
Eleven of the twelve judges sat in error yester-
day for the purpose of giving judgment on the ap-
plication for a new or third trial in the now his-
toric case of "Butler v. Mountgarrett." There
having been a disagreement of opinion, their 1-rd-
ships delivered judgment seriatim., Mr. Justice
Keogh, as junior, commencing, and at the adjourn-
ment of the court four out of the eleven had still
to speak. Let the issue be what it may, it is not,
of course, in the nature of things legal that the
decision wilt have any other effect than that of
hastening the " beginning of the end" of all such
protracted and expensive suits, namely, the final
appeal to the highest and most costly tribunal in
the land. The facts of the case are briefly these :
"The action was an ejectment on the title, brought
by Mr. Pierce Somerset Butler against the Right Hon.
Henry Edmond Butler, Viscount Mountgarrett, to re-
cover possession of certain lands worth several thou-
sands of pounds per annum, and situate in the county of
Kilkenny. The declaration in ejectment was filed in
July, 1853, and, defence having been t.ken, the came
went to trial at the summer assizes of Kilkenny in 1854,
brfore -Judge Ball and a spekial jury, and, alter a pro-
tracted investigation of several days, terminated in a
verdict ter the plaintiff, the tact of the defendant's
legitimacy being the only question to be decided. In
Michaelmas term in the same year a conditional order
for a new trial was granted by the Court of Exchequer,
arid subsequently \made absolute, on the ground that
illegal evidence was admi,t,cl at the trial, &c. The case
then went down for trial again, and was re-tried before
Mr. Sergeant Berwick and another special jury at the
spring assizes of 1855, when, after another very pro-
treeted inquiry, there was a verdict the other way,
namely, for the defendant. The plaintiff then came be-
fore the Court of Exchequer and asked for a third trial
on the same ground that the second trial was granted—
viz , that illegal evidence was admitted ; but that Court
was of opinion that tha verdict in favour of Lord Mount-
garrett should staud ; and it was from that decision '
that the present appeal proceedings were instituted.
The questions raised for argument and the facts in
relation to them were shortly these :—The late Earl
of Kilkenny having died seised of the extensive
estates in question, the plaintiff claimed them as
beiraelaw, and adduced his title in the following
manner, viz., as the youngest brother of the
deceased earl, and the legitimate heir to the property,
the defendant beine, as he alleged, illegitims. e. The
deceased Earl of Kilkenny died unmarried, and had three
brothers, Somerset, who also died unmarried, Henry,
the father of the defendant, and the plaintiff, who Was
the youngest: The plaintiff alleged that the defendant's
father's marriage to his mother, Miss Harrison, was
illegal, as he lied a site alive at the time—a lady named I
ewooke ; and the only questions in the case were, in
fact, was there a marriage with Mrs. Celebroeske, and
was it a legal marriage, and such as invalidated Henry
Butler's marriage with Miss Harrison ; for, if so, it was
admitted that the plaintiff would be entitled to the ti le
and estates in question. Upon the last trial it was pro-
posed by the plaintiff to cross-examine the Dowager
Marchioness of Ormond, who was examined far the de-
fendant, to show that the representatien of the family
was that Henry Butler had formed a marriage with Mrs.
Colebrooke before his marriage with Miss Harrison, but
the evidence was objected to by the defendant's counsel,
and the objection being allowed, and the evidence ac-
cordingly rejected, the present application for a new
trial was made. That was the principal point in the
case ; but there were some other exceptions taken to the
charge of the learned judge for the exclusion of other
evidence, which were of minor importance.
" Mr. Justice Keogh having entered minutely into
the facts of the case, and reviewed the arguments of
counsel on both sides, his lordship considered the autho-
rities bearing upon the questions at issue, and concluded
an etaborete judgment by giving his opinion that the
first and principal exception, that relating to the rejec-1
tion of the Marchioness of Orrnond's evi tepee, should
be allowed, and a teneie de novo granted accordingly ;
the other exceptions to be overruled.

" Baron Greene folio wed, overruling all the exceptions,
none of which he held could be surtaiued in law.

"Judge Jackson and Barons Richards and Penne-
father also gave judgment overruling all the exception•.
"Judges Moore and Ball allowed the first exception,
and overruled the rest.

"The Court then adjourned to 11 o'clock this day,
when the other members of the Cuurt will severally pro-
nounce judgment.
" As the case now stands there are three members of
the Court for granting a venire de novo, and four contra."

CANDIDATES FOU THE DIINMOW FLITCH.—The follow-
ing applications for the Dunmow flitch, to he presented
on the 24th June by W. Harrison Ainsworth, Esq ,
have been received ; and it is evident that as the claim-
ants sppeir to be equally eligible—all meek and mild,
submissive and loving, Und only one prize is offered, two
of the couples must return baconless, unit.ss some gene.
rous donor will augment the gammon. The wife of one
of the claimants has been married three times, and says
that by kx:ierience she finds a married life much happier
than a single one : _

" Staffordshire, April g, 11157.
" Sir—We are both prep-trod to substantiate our claim
for the flitch of bacon, and are now enjoying the pleas.-
lag thoughts of our anticipated visit to Dunmow, to go
in and win the prizd of our ambition. "T. J. H.
M. II."
" Saffron Walden, 31st March, 1857.
"Sir—We hereby claim the Dunmow flitch of bacon,
and are quite willing to take the oath required, and go
through the necessary ceremony in order to claim ; and
hope we shall be fortunate enough to gain the prize, as
we have never quarrelled since our marriage took place.
" W. S.
R. P. S.
" Colch est er, April 6, 1857.
_ _

"Sir--I am happy to inform you that my wife as welt
as royseif are most willing to go through the ceremony
of obtaining the Dunmow flitch, as the honourable prize
of our conjugal happiness ; and we shall be there, unless
prevented by sickness or other unforeseen accident.

" J. 0. B."

General Patrick Grant, the Coinmander-in-
Chief at Madras, an officer whose witecerlente,
character,- -and experience peculia; ly fit him for
the post, is the officer who ought to hive been sent
t) China. It is trne that he is a Company's
officer, but, for that matter, so is General Ontram.
"I am, Sir, your bedient servant.
" April 22." " PHOCION.

"Sir,—ln your leading article of the 21st inst.,
you express some,doubts as to whet General
Ashburnham is exactly the man for taking sudden
prissevion of Canton, marching on Pekin,' kc. In
those misgivings I most heartily coincide, and you
shall judge from one little episode in tho General's
services whether I have riot a good reason for so

. _
" I have now in my possession a little memoran-
dum book, in which I wrote down a few notes on
the campaign of the Sutlej in 1845.46, jotted down
immediately after the last action, Sot,rion. From
these, as-ostei by the most vivid recollection of
what occurred in my cognisance, I give you the
following details :
" That you may understand what I have to say,
I.must premise that our chief advanced post at
Rhodawal/ah was about a mile from the left front
of our camp, and about 200 yards from the nearest
point of the Sikh intrenchments ; 'that at some BGO
yards from. Rhodawallah, is the direction of the
shortest line to those intrenchments, was a Sikh
outpost termed the Maichan (look-out wage). • In
the immediate neighbourhood of this post it had
he decided by the Commander-in-Chief, Gover-
nor-General, and heads of department,, in council
assembled, that our battery of heavf artillery was
to be thrown up, destined to subdue the first of
that portion of the Sikh intrenchtnentupon which
Our main a‘tack was to be made.

" Brigadier Ashhurnham was in command of the
outpost of Rhodawallah on the 9th and 10th of
' February, 1846, having under his orders her Ma-
jesty's 9th, two native regiments, and a detail of
artillery. At 11 p.m. of the 9h I, th.n.holding
the position of a staff officer, started fr nn camp by
order of the brigadier commanding the artillery to
inform Brigadier Asliburnham that the first gun of
the siege train had got under way, and to desire
him to lose no time in taking the Sikh outpost at the
Maichan, agreeably to the orders of the Comman-
der-in-Chief. Arrived at his tent, I f mud tie
Brigadier in his dressing-gown. I communicated
to him the message I was charged with. He re-
plied that his orders were to take the Maichan with
her Majesty's 62d at 4 o'clock a.m. I objecte I
that the regiment in question was 'three miles to
the rear ; that some most valuable hours would in-
evitably be lost if he insisted on having tha, regi-
ment ; .that our, artillery was to open at dayLght,
an that, a battery could not be thrown up in three
hours ; that the 9th under his command would do
the business equally well ; and that there was
evidt•ntly a great discrepancy bet wean tie orders-he
had received and those my brigadier were in pons s-
alon of. My reasoning was of no avail. ; the 62d,
at 4 a.m., was his ultimatum. - •

".1 returned to camp. My brigadier, his second
in command of the same rank, and the two briga-
diers of the Engineers, disgusted at the stare of
affairs—a boggle in Umine—proceeded to Itir)da-
wallah to endeavour to persuade Brigadier Ap,h-
burnbant of tie ne,:essAy of taking the post at
once. I ac-xunpanie 1 them. They w,•re not a whit
more successful than I had been. He was obdurate.
" The whole of the offic,rs and wen attached to

the Heavy Ar illery and Engin,ers remained fr
Say, 12 o'clock till 4 a.m. kicking their h els' in
the most bitter cold night, wfliout covering orfire,
instead of throwing up the r b ittery as was in-
tended by the Commander. in-Chief.
"By th;s time Sr. H. Gough, Commander-in-
Chief, bedight in a white blanket p.iletit over his
uniform, Sir H. Hardinge in his carriage, and their
`brilliant' staffs had congregated at Ithodaw,illah.
What was said to li.igadier Ashimmliam. by Sir EI.
G ,ugh on the matter I know not, but I would not
have held his position that due morning for a good
round sum However, the 621 at I.nigt. made
their appearance. They loaded as I stool ray, anii,
under the command of Brigadier Ashburnham,
started through the darkness in the directi m of
Mitichan. Every ear was stretched to catch the
faintest noise, expecting every instant to hear a
shout and a rattle of musketry. Not a sound !
A quarter of an hour elapsed. Sir H. Gough sent
an aide-de-camp to ascertain what hal happened.
It was dark, and he lost his way. A second was not
more fortunate. A third at length returned with
the information that the 62d, under the command
of the Brigadier, were lying in the dry null th
(water-course), between us ant the Maich tn. Oh
the exasperation of that moment ! Sir H. Gough was
frantic as only Sir H. Gough could be. ! what
in the world more orders would he want .? Let him
take it immediately !' was his Excellency's reply to
the aide-d-camp.
" The regiment, under command of the cautious
Brigadier, went up to the Maichan, and—there
was not a soul in it !

" The above occurrences appear in Sir H.
Gotgli's despatch, as follows :—` It was directed
that this (the taking of the Maichan) should le.
done during the night of the 9th, !Jut the execution
of this part of the plan was deferred, owing to
mis-
conceptions and casual circumstances, until near
daybreak.'
"From the above you may perhaps gather what
General Ashburnharn's military capacity is, and
I whether he is likely to be the man for China. I
should state, however, that, on the receipt of Sir H.
Gough's despatches in England Brigrolier A.,lburn-
, ham was nominated one of her Altie•oy's ai les-de-
; camp for having, according to the de:patches
manceavred with great coolness and success as a
reserve.'

" Yours obedientl►,

"M. L."

"Sir,—Allow me to correct a mistake in your
leader of yesterday. LiGittenant-Gen-r,tl Ashburn_
barn commanded a brigade uf the army under L9rd
Gough at the hAt'le of F«rozo.shithur, on the 21st
and 22d of December, 1845, and a,.ain at Solnaon,
on the 10th of Febtuary, 1846, he being then the
junior lieu'emtut colonel of the 62d Regiment. I
do not think he could Inv() been at Chiltianwal!ah,
as he was at the time Intlitary Secretary to Lord
Falkland.

" Yours b 3diently,
" AN OLD STRINGER.
"Rockford, Essex, April 22."

CANDIDATES AND THEW. WIVES —The ladies have
taken an active part at several of the elections just
ended. At lindler,,fleld, as moat of our readers
know, Mr. Akroyd, at the close of the election, em-
braced his wife in the presence of the ae.ernbled thou-
sands in St. George's-square, to whom the lady and her
husband then bowed their acknowledgment.. It is said
that an influence that largely contributed to Lord John
Russell's return was the admiration excited by the appear.
'mice at the hustings, and active interest taken in the poll
by his wife, Lady John Russell appeared in the City with
her childrec, visited the different polling-booths, had a
smile and a courtesy ready for every voter, and completely
won the hearts of the multitude. Another candidate's
wife in the country carried matters even farther than did
Lady John Russell. Lady Mildred Hope, the daughter
of the Marquis of Salisbury and wife of .Mr. B. Hope
(who has just got in ;or Maidet, one), by the admission of
ail parties carrit d the election for her husband. She did
not exactly canvass for him, but all through the election
she was constantly driving about the towu. She was
also most active at the nomination, and during the poll-
ing ; and, at the close, unable to restrain herself any
finger, she threw up the window of her hotel, and a -
dressed the mob in a speech which everybody agreed
was better than her husband's delivered immediately
afterwards from the 'same place.—Bradford Observer.