The Sun.
London, England, 1859-05-05 00:00:00

LAW INTELLIGENCE—May 4.

COURT OF QUEEN'S BENCH.
BIRCHAM AND OTHERS V. WALKER

The facts of this case were placed on the judge's
notes at the trial, and the learned judge, Mr. Baron
Martin suggested that the judges of this Court
should lay down the law, and also draw any infe-
rences which were to be drawn from the facts. It
appeared the plaintiffs, three in number, were
members of the firm of Birchams and Parmiter,
brewers, at Reepham, in the county of Norfolk.
The defendant had petitioned the Insolvent Court,
and the question was whether he had given
sufficient notice to the plaintiffs, so as to bar
their right to recover their debt against him
in this action. The notice had been directed io
"Messrs. Birchring and Parmiter, brewers, Run-
ham ;" it thus contained two errors, one in de-
scribing the "Birchams" as " Birchring," and the
other in describing their place of business as at the
small village of " Runham," instead of the town of
" Reepham, ' which was thirty or forty miles dis-
tant. It was admitted that the notice never reached
the plaintiffs, who knew nothing about the defen-
dant's insolvency till twelve months afterwards.
Mr. Honyman was heard for the plaintiffs. Mr.
Pearce was heard for the defendant, and cited a
Nisi Prius decision by Mr. Justice Cresswell (5,
Bing. N.C., 68), in -which it was held that such a
notice was sufficient, if there was a reasonable pro-
bability that it would reach the party.
Lord Campbell said that, as the fact was referred
to the Court, it might be a question whether the
Court should be unanimous. His lordship then
proceeded to say that the proper question of
law was put by Mr. Justice Cresswell—viz.,
whether there was reasonable expectation that the
notice would reach the creditors. That was the
question which he (Lord Campbell) asked himself ;
and, answering it as a juryman, he should say that
the notice might reasonably be expected to reach
the plaintiffs. The plaintiffs were eminent brewers
at Reepham, and probably known by every post-
master in the county; but there was no brewery at
Runham, and the probability was that when the
letter reached there itwould be sent on to Reepham.
His lordship thought the mistake in the name,
" Birchring" for " Bircham," was immaterial. His
lordship added that this was a mere question of
fact,,and could not be a precedent for any other
case; and that he was much influenced in his
opinion by the fact that the plaintiffs were emi-
nent brewers. There was no reason to suppose that
the defendant had attempted any fraud, but he had
done his best, and what was likely to gain the
object the Legislature had in view.

Mr. Justice-Erle said that on the question of law
the members of the court were all agreed. But
they had also to answer the question in the capa-
city of jurymen. The foreman of the jury (Lord
Campbell) was of opinion that the plaintiffs were
" eminent brewers ;" but he (Mr. Justice Erle) could
not see that they were such brewers that the letter
was likely to reach them. He was glad, however,
that the defendant was on other grounds entitled
to the judgment of the court.
Mr. Justice Crompton said the onus of proving
that a right description had been given lay on the
defendant; and that if a wrong description had
been given, so as not to be likely to get to the
plaintiffs, it would be insufficient, though there was
no fraud. As to the facts, his lordship said he was
not without doubt, but still he did not dissent from
what had been said by the Lord Chief Justice.
Mr. Justice Hill said he thought there was a
reasonable probability that the notice would reach
the plaintiffs, and that the rule should be made
absolute, to enter the verdict for the defendant.
Rule absolute accordingly.

In the Insolvent Court Mr. Commissioner
Murphy, this day, alluded to the above important
decision, and informed the gentlemen of the bar
that he would henceforward act in accordance there-
with, The learned Commissioner has always
evinced a strong objection to mere technical objec-
tions, and yesterday overruled three raised by a
very eminent barrister.

COURT OF COMMON PLEAS.
Sittings at, Nisi Prius in London.—(Before Mr.
Justice Williams and a Common Jury.)
COOPER V. LLOYD-ADULTERY AND CONDONATION.

This was an action to recover £l2 for board and
lodging supplied to the wife of Captain Lloyd, R.N.,
who denied his liability.
Mr. Laxton and Mr. Patchett appeared for the
plaintiff, and Mr. O'Malley and Mr. Francis for
the defendant.

Mr. Laxton in opening the case said that the
action had originally been brought in the Lambeth
County Court, but had been removed at the instance
of the defendant into the superior court, upon the
ground that important questions of law were in-
volved in the case ; and, indeed, the question of
adultery and condonation of adultery must arise.
Mrs. Lloyd married in 1847, and after a few
weeks' residence with her husband in the island
of Jersey he went to the East Indies on service,
and was away for three years. During his absence
disputes took place between some members of
his family and Mrs. Lloyd, and she in con-
sequence left Jersey and went to her brother,
at Fort George, Inverness. Whilst there she
became acquainted with Mr. Winslow, with whom
she committed adultery, and a child was born.
When Captain Lloyd returned his wife visited him
at Chatham, and having confessed her fault her
offence was condoned, not only by Captain Lloyd's
forgiveness, but by his sleeping with her after-
wards. The learned counsel then detailed the facts
deposed to by the witnesses, and he also referred
to passages in letters written by Captain Lloyd,
to show the captain's knowledge of what had taken
place. In one dated December 12, 1852, and ad-
dressed to Captain Wragg, Mrs. Lloyd's brother,
he said that he had seen Mrs. Lloyd, " and ulti-
mately succeeded in eliciting from her that she had
had a child by Mr. Winslow ;" and he added, " she
confessed what she had done, which I have in her
own handwriting, and I forgave her." In another
letter addressed to his wife the captain said, " What
a twofaced blackguard your brother is, to let a
sister of his nourish an illegitimate child to my
disparagement, morally and pecuniarily speaking ;"
and the learned counsel explained that this was an
allusion to the fact that Captain Wragg, in order
to screen his sister, had said that the child, which
was in his house, was his and not hers.
Mrs. Sarah Winter, the plaintiff, was examined,
and said—l have married my present husband since
the commencement of this suit. In February last
year I let some apartments, No. 4, Smirk's-road,
Old Kent-road, to Mrs. Lloyd, at 7s. 6d. a week.
I have boarded and lodged her ever since. My
claim up to the commencement of the suit is .£l2.
Mrs. Phillis Lloyd—l was married to the gentle-
man who is now Capt. Lloyd in 1857. I lived with
him two months in Jersey, and after that he left for
service in India. He had a sister and his mother
close by our house in Jersey ; and after he had
gone differences arose between me and his family.
It was quite the talk of the island. I had a boy by
Captain Lloyd, and when that child was about ten
months old I left Jersey, and went to Fort George,
the residence of my brother, who is in the Artil-
lery. I saw my husband at Chatham—l thing in
December, 1852, or January, 1853. I was invited
by him to go to Chatham. He wrote to me to
go to the Sun Hotel, and he would meet me. I
arrived there, and found he had engaged a room
for me. I stayed there that night. I afterwards
went to other lodgings in Chatham. He askedme
to give him an account of the time I had been
absent, and hinted that I had been unfaithful, but
he said what hurt him most was my want of confi-
dence in not confessing to him, and that if I did
confess he would forgive me. He did not say the
last part, but he hinted it. He took me to Ham-
mond-hill, Chatham, where his son was, and it was
there that I remained a week or more. On the
first day he stayed with me at the hotel until even-
ing, and then went to his ship. I confessed to him
in writing that I had been unfaithful to him, but I
afterwards contradicted it. I told him I had had
a child, but not by Mr. Winslow. He read over
the written confession twice. I was seated in an
arm chair. He came and knelt down at my feet,
and kissed me on the forehead, and said, "Phillis,
I forgive you; and will receive you as my own
dear wife, the same as if this had never happened."
He tore the paper, and said, " I tear this up, that it
shall never bear witness against you." After he
tore up the paper we had a long conversation toge-
ther. He said he was afraid of its getting wind in
the service, but if, putting our two heads together,
we could arrange any plan so that it would not
be known, he should be very glad. We accordingly
arranged between us that I should go to France
time,
with the two children, remain there some
and when I returned say the child wassksoedhild.
much
you Mr. nge Winslowr than he really was.
if was the fatherH of the c
I said he was. He said he was a rich man, and
said
ought to pay well for his folly; an a
outalso on half-
that if he had sufficient money tot
agnd I should go
a
pay he would go on the continsaeind
that I had £2OO
with him. Hearing that, I
with the children. I "in-
should go to France w
a year, and then, as I tell you, he settled that I
Winislhoawd allozeadymeaerthalalto,wbeuat
miet
fermi" that Mr.
Captain Lloyd offered me money,
bwya smnr o. twt
ne s
low.
h .
my husband had
but I declined to take it. I
which
left my wedding
At Chatham
my husband
.ring again ring and allt the
Jersteryin.kets
placedgven thei wedding on my finger. He
slept withtwmasetohnee
nightnight
adftuerrinheg my stay at a - Ch t
gave me the wed-
ding ring, and the following morning I left. The
following morning he had changed his mind ; he
thought I had better not remain at Chatham, but

go back to my lodgings in London with the child.
I have never seen Mr. Winslow since I confessed
to my husband.
Cross-examined—I let the house in Jersey for
£1 ls. a week. I will swear my husband did not
send me £4lO whilst he was in India; £l3O in
1848, I:105 in 1849, and £175 in 1850. I might
have received the former sum, but certainly not the
latter.
Mr. O'Malley—Was it at Inverness that Mr.
Winslow became the father of your child ?
Witness—l have not said it was Mr. Winslow's
child.

Mr. O'Malley—But he was the father ?
Witness—He was not. I will not tell you who
was the father. Mr. Winslow did allow me £4O
a year.
Mr. O'Malley—What for ?
Witness—Because I was poor and in want. He
never offered to allow me £lOO a year. There was
no bond prepared for that purpose. I asked him if
he would allow me more than £4O a year, and he
said he could not.
Mr. O'Malley —Why did you ask him to allow
you more than £4O a year ?
Witness—Howcould I exist on that. He allowed
it me for friendship. He was a most intimate friend
of my brother.
Mr. O'Malley you say he is not the father of
the child ?

Witness—No, I did not.
Mr. O'Malley—Then what do you say ?
Witness—l say I refuse to answer the question ?
Mr. Justice Williams —You most unquestionably
said so. Do you say he is the father of the child ?
Witness—Am I bound to answer that question ?
Mr. Justice Williams—Yes, why not ?
Witness—Well, then, I will tell the truth ; he is.
He allowed me the £4O a year for the support of
the child. He miy have given me as much as £3OO.
I may have had -0500, includinc, the money for
some railway shares, which Mr. Winslow sold for
me. Mr. Winslow had a wife and family living
with him. He visited at my brother's house and I
visited at his. After I left Inverness Mr. Winslow
saw me in London. My second child was born in
Dublin. I went to Belgium before I went to Dublin.
During this time Captain Lloyd's child was with my
aunt in Jersey. I went up the Rhine. I was on the
Continent two months, and I was in Dublin five or
six months before I was confined. Mr. Winslow
paid the expenses of these journeys. He went
with me on the Continent, and afterwards to Dub-
lin. He did not remain till the child was born.
Ido not know where he is now. He was in Ger-
many when I last heard from him. That is more
than two months ago. Ido not know whether it
is three months. I have not seen him since two
months before the birth of my child. Mr. Winslow
and I lived together. I cannot recollect where,
but I think it was at the Bedford Hotel. It was
nine months before the child was born. The child
was baptised at Greenwich as Edwin Isidore
Lloyd. When Mr. Winslow lived with me I
passed as Mrs. Winslow. I was in Paris for three
years, and I paid my own expenses. I had money,
and I did embroidery. In the latter part of 1856
I lived at Grey's-cottage, Nelson-street, Greenwich,
and was confined of my child there. Capt. Lloyd
is the father of that, child. I told Captain Lloyd
of it on board ship.
Mr. O'Malley—On your oath, did Capt. Lloyd
ever know of it till this moment ?
Witness—Yes. It was a girl. Early in 1856 I
came over from Paris to see Capt. Lloyd, and I saw
him at Chatham. I brought my second child with
me. The third child is dead. On the occasion
when my husband forgave the adultery, I told him
that I had been surprised in consequence of having
been drugged by Mr. Winslow, and that I had
never had any intercourse with Mr. Winslow
except on that occasion on which he drugged me.
I have said that Captain Lloyd remained in my
room all night after I had confessed. That was the
night of the day on which I had taken poison.
Mr. O'Malley—Had you not taken poison be-
cause he refused to live with you after your
avowal ?

Witness—For the present he did. That was
why I took poison. I tried to poison myself. My
husband was out walking when I took the poison.
It was laudanum. He gave me emetics. I was
very ill all night and the next day. -
Mr. O'Malley—Did you ask him as a dying
request to spend the night in your room ?
Witness—l did not. I did ask him, but I did
not tell him I was dying. The emetics were given
to me immediately. I swear he slept 'with me that
night. I have a recollection of what occurred. I
do not know the name of the hotel. Ido not know
Chatham. I went back to Paris. I saw him in the
summer of 1857, after my third child was born.
This was on board the Edinburgh. I told him of
the third child. My husband invited me to dine at
the mess. Captain Halstead, who commanded the
vessel, did not turn me out of the ship. I begged
to see him, because the moment I began to speak
of money my husband changed from being kind,
and said he would give me nothing till my brother
signed the deed of separation. Captain Halstead
spoke very politely, and said ladies were not allowed
to remain on board, and he could not interfere
between man and wife.

Re•examined—My husband corresponded with
me constantly•whilst I was in Paris.
At the conclusion of this witness's evidence the
further hearing of the case was adjourned until
Thursday.