Star.
London, England, 1825-11-17 00:00:00

HABEAS CORPUS.—moomt V. FITZGIBBON.

Mr. ADOLPHUS, on a former day, obtained a writ of
Habeas Corpus, which was directed to a person who
had the custody of an infant, in order that it might be
brought into Court, to be delivered to Mr. Moore, the
father. The Learned Counsel moved this day, that the
return to the said writ be received.

The return was accordingly handed to the Bench,
and read. The person to whom the writ: was directed
returned, that the child is ill of the meas!es, and that
he could not obey the writ. He was, however, ready
to obey any further order the Court might make.
Mr. ScsaLerr then moved the child be delivered to the father.
The COMMON SERJEANT opposed the motion. He
said he had difficulties to contend with in this instance.
He did not mean to say a father was not entitled by
law to have the custody of his son, but it had been
decided by the Lord Chancellor, in the case of 1, De
Mandeville," that a child was not to be delivered to
the father, if the object which the father had in view
was injurious to the child. The present case was one
which wonld justify the Court in refusing to deliver the
infant. The Common Serjeant read the affidavits of
Lord Brandon and Lord Kilwarden,which were detailed
some time since in the Court of Chancery, upon an ap-
plication to make the child a ward of Court.
The inference drawn from those affidavits was, that
Mr. Moore wished to get possession of the child from
a vindictive motive. It was also contended, that
60001. had been expended by Colonel Fitzgibbon, as
damages in an action of cries. con. by way of compro.
mice, and on condition that Mr. Moore should allow
the children (Florence and Henry) to remain with their
mother, who, in cons..quence of a divorce, is now the
wife of Col. Fitzgibbon.
Mr. Baoroaa.x and Mr. Cairn were heard on the same side.
Alt. SCARLITT read the affidavit of Mr. Moore, which
denied the principal allegations in the affidavits made
in behalf of Cul. Fi:zgibbon. He described Mr. Moore
to be a person who had really an aff.:ction fur his son,
and as one who had settled his fortune upon him.—
There was no pretence for saying Mr. Moore ought not
to have the custody of his son.
The LORD CHIEF JUSTICE said—There can be no
doubt but we are bound to confider Mr. Moore the
father of the child, nor is there on the law that a father'
is entitled to the custody of his son. We are bound to
give him the benefit of the law. 1 do not say if it ap-
peared to the Court that the general interest of the son
would be injured by giving him up to the fatherithat we

. .
should not be at liberty to refute the delivery; but I
am clearly of opinion nothing of that sort appears. As
to the compromise; it seems *e ought, on the attcla-
v its, to leave that entirely Out of consideratiOn. then
hr.* is it to be inferred thit the child would be injured
in the hands of this Gentleman? If be is delivered

over to the father, he will be brought tip as legitimate;
but if he remains with the mother, he will be brought,
up as illegitimate. It seems to me, Upon the whole,
view of this case, that we are promoting the
.interest
of the child by giving him to his father. We, there-
fore, give a rule of Court that the parties who make
this return shall retain the child in custody until he is
sufficiently recovered from indisposition, to be safely
delivered over to the father.

Mr. Justice BAYLICY concurred in the judgmient of the Chief
Justice.—lt was then agreed that the child shall be delivered a
soon as the medical men can report that he is well.

COURT OF COMMON PLEAJ, Nov. 16.
In one of the undefended causes, a young lad appear-
ed as witness, who rejoiced in the whimsical bacchanal
name and sirname of
_44 Port Wine," which, from his

. _
waterish aspect, was clearly not "sown ab re inditum."
CONSISTORY COURT, NOVEMBER 16.

THE MARQUIS OF WESTMEATH v. THE MARCHIONESS OF

WISTM EA TM.

Dr. Losttixcerosr sated, that in this matter the Mar.
quiz of Westmeath originally promoted a cause of res-
titutein of conjugal rights against the Marchioness; and
the citation in that cause was returned into Court in
June, 1821. On behalf of the M irchioness the mar-
riage was confessed; and an allegation given in, in an-
swer to the libel on the part of the Marquis. That alle-
gation, to which there were ten exhibits annexed, pleaded
the marriage of the parties in May, 1812, their coha-
bitation, and the birth of two children—Lady Rosa,
who was born in May, 1814,, and a son, born in Novem-
ber, 1818, but since dead ; that in the month of
August, 1812, during the residence of these parties at
the Black-rock, near Dublin, Lord Westmeath treated
his Lady with great cruelty ; that in the year 1813, while
they were living together at the house of the Marquis
of Salisbury (the father of Lady Westmeath), his
Lordship again cmducted himself towards her with
great impropriety and violence; but that Lady West-
meath, being desirous of concealing from her family
the nature of his conduct, did not on that occasion
complain to her relations about it; that in the year
1813, Lord Westmeath again went to Ireland, and there
detained her Ladyship's pin-money; that he refused to
satisfy any of her pecuniary wants, behaved to her with
extreme cruelty, swore at her, -called her " a d—d
b—h," said he " would kick her to h-11," and treated
her with such violence, and struck her so forcibly, that
she was severely bruised, and her health became se-
riously affected ; that one night, happening in the
month of —, 1814, after they had retired to bed, Lady
Westmeath being then pregnant with her daughter,
Lord Westmeath struck her with his clenched fist a vio-
lent blow, so that her exclamations called up her ser-
vant, Sarah Mackenzie, in whose presence he acknow-
ledged that be had so struck her. In consequence of
this ill-usage, Lady Westmeath became very ill, and
experienced much cruelty from him again. in May,
1815, while she lay in with her daughter. Among other
things, he threatened to settle all his property on the
Hon. Thomas Nugent, his brother ; and that he would
cut off his daughter without a shilling; this conduct,
also, he acknowledged to his friend Mr. Wend.—
It was further pleaded that Lord Westmeath would
not allow his wife to have a wet nurse, observing
in an angry way, that •' he wondered why the
d-1 she could not nurse the child herself;" that
in July, 1815, they went 'to live for some time at
Leinster-house, where some quarrel having arisen be-
tween them, about going to the play, he struck Lady
Westmeath a blow on the head, from which she suffered
very severely ; and that on the same night, after em-
ploying the most angry language, he attempted to
smother her with a pillow, but her cries brought the
domestics to her assistance. The Learned Advocate
proceeded to detail a lengthened series of cruelties, quer-
rellings, and reconciliations, which ended in a final
separation in 1819, since which time, Lady Westmeath
has lived entirely apart from her husband. Several
cases of alleged adultery were also cited against the
Marquis, upon two of which only the Advoc ate relied.
By way of answer to the charges contained in these
allegations, Lord Westmeath had himself given in an
allegation consisting of forty-seven articles, in which he
set forth, that so far from treating his wife with vio-
lence or cruelty, his behaviour to her had been uni-
formly kind and affectionate ; that what disagree-
ment ensued, and what occasional warm language
was interchanged between them, were principally from
the reproaches with which the Marchioness was con-
stantly assailing him, on account of two natural
children which the Marquis had had before his marriage.
The remainder of this allegation comprised a minute
denial of all the facts of cruelty, adultery, and ill-usage
imputed to his Lordship; on one article alone, thirteen
witnesses were examined ; and several o her witnesses
on the remainder. This plea also set forth the practices
of one Macguire, an Irish attorney, who, with several
other persons whom he had procured (as was alleged)
to give evidence against Lord Westmeath, had been
indicted for perjury at Dublin ; when all them, with the
exception of Macguire, were found guilty and convicted.
The Learned Counsel concluded his opening by inti-
mating, that.when the evidence should be read, and the
argument proceeded with, he should move the Court
not only to dismiss Lady Westmeath from the suit of
restitution promoted against her, but to sign such a
sentence as should entitle her to the separation for which
she prayed.
Dr. JENNER, on behalf of the Marquis of Westmeath,
briefly opened the several articles which his Learned
Friend had declined either to trouble the Court with, or
to depend upon; because he, (Dr. Jenner) felt, that in
this way alone, by comparing and estimating every fact
adduced in the cause, could the Court form an accurate
judgment of the sort of case which it had been attempted
to set up against L-ard Westmeath. The Learned Coun-
sel then adverted particularly to the conspiracy set on
foot by parties who had been Lady Westmeath's agents,
to obtain witnesses against the Marquis; and after
sheaving that the whole of the charges in her Ladyship's
pleas were contradicted by the plea asserted in behalf
of his Lordship, declared that be should call upon the
Court, to direct Lady Westmeath to return to coha-
bitation with her husband.
In the Marquis's allegation, it was pleaded, that in
order to suppress the angry and vehement tone in which,
on the occasion referred to (in July, 1815) in Lady
Westmeath's plea, her Ladyship was venting her re-
roaches against him, and unwilling that her taunting
llanguage should be heard by the domestics in the house,
be (Lord Westmeath) placed a pillow over her mouth,

• a ?11, f doing and violence;
but without the slighteAtintention or
and much lesi of sninthering her". . :
The reading of the eitidenee, Ste. was 'then goof i.ntt4
preparatory to the argument of Counsel, and was not completed
when the Court broke up. . , '

LISMORk V LISMORE.,
• lit •' • •
This is a case in which a suit of divorce was. in:
• -
stituteci hy.Lord Lismore against his Lody, by reasorl
of adultery. The particulars of the ca e )c.et)
fully detailed. It was contended, that the adultery by
Lady Lismore bad nit been sufficiently proved ; and
even ib iugh it had, that LOrd Lismore 's condi 'ct
wards his w ife was such as to preclude him fron redress:
On the sitting of the Court this morning,
S;r CHltitTOPtitft ROBINSIII pronounced judgment:
He said that this was a cause of divorce instituted by
Lismore against Lady Lismore, by reason of
adultery.
.The libel set forth the solemnization and
consummation of a marriage between the parties ill
1808, a cohabitation till 1819, the birth of several
children now living, and the separation of the parties
in 1821, on account of some differences, the nature of
which art not speCifically stated. It then sets forth a
long course of adulterous intertonrse between Lady
Lismore and Mr. Bingham (son to Lord Lucan), prin-
cipally at Naples and Paris, and one occurrence at
Rome, in 1822. It also pleads a confessiOn made in
this country by Lady Lismore. Six witnesses had been
examined, three of whom speak to the fact of the
mmiage, and other circumstances which require no
observation ; but the principal merits of the case are to
'be found in the evidence of a female servant,..Miss Paty,
Davis, the footman, and Mr. Butler, who, he presumed,
was a relation of the fam ly. No plea had been put in
on behalf of Lady Lismore, denying the fact, or detail-
ing. circumstances to influence the judgment of the
Court. Her Ladyship had rested her defence on the
evidence appearing on the face of the libel, and the
observations of her Learned Counsel ; and the substance
of their argument on her behalf was, that the adultery
had not been sufficiently proved ; and even admitting
the sufficiency of the proof, that Lord Lismore had,
by his neglect of his wife, precluded himself from
redress in these Courts. The Learned Judge then
detailed the evidence in support of the accusation, and
said, that if the witnesses were to be believed, there
could be no doubt of the adultery ; and after a full
examination, he saw no substantial grounds for im-
peaching their test mony. W,th respect to the second
part of the defence, he was of opinion there was no
ground for the charge of criminal neglect or connivance,
and he saw no re.tsen why Lord Lismore should be
deprived of the usual remedy in these cases. The Court,
therefore, admitted the libel, and pronouc ed the
sentence of Divorce.