Star.
London, England, 1819-07-17 00:00:00

LAW INTELLIGENCE.

CONSIBT4RY COURT, JULY 16.
PROCTOR AOA IN..!T PROCTOR.
Sir WILLIAM Scorr gave his judgment on this
cause to-day. The pasties (he ol3ervecl) to this suit
were husband and wife, and were married in Sep-
tember, 1810. The marriage was proved in else
usual firm, as well as their subsequent cohebitaticn,
at Thorley, in liertfordshises end at Mardoas-hall,
in the same County, the seat'of Mr. Proctor, and its
other places ; in ail of which they mutually recoge
nixed each other as husband and wife, and were so
received :ind accounted by their friends and acquain-
tances. There appeared to have been no issue of
this marriage, in consequence of the repeated mis-
carriages of Mrs. Proctor. In the month of August,
1814, Mr. Proctor carriee his lady to the Continent,
he being attended by a valet, named Charles Bacil-
lery, and she by her servant Dorothy Marks • 'After
visiting in succes,inn Paris, Florence, and Rome,
they arrived at Naples on the 10th of November,
where they remained till the 23d of March. 1815 ;
and here they became acquainted with Temple
French, Esq. But on the 28th. of March they ar-
rived again at Rome, and there they lived in a house
situated on the Corso. In Rome they were intro-
, duced to Charles Standish, Esq. an English Gentle-
man of large fortune, between whom and Mrs. Proc-
tor an adaterous intercourse took place, which was
'•known to the servants of this, family, but which was
unknown to the husband till the month of February,
1816; 'when he first received notice of her infidelity:
in consequence of which he brought an action at
common law against Mr. Standish (in the Court of
King's Bench), and recovered, in May, 1817, £5OO,
damages. It appeared that while they resided in
Rome, it was the custom of Mr. Proctor not to retire,
for the night, till his lady sent her servant to inform
him that else was in bed; and that it was also his
habit to rise early in the morning, and go imme-
diately into his dressing-room. By the connivance
pf Dorothy Marks, Mr. Standish was admitted, att
lurch times, into the bed-room, where those scenes of
Infidelity took place between him and Mrs. Proctor,
which were the subjects of the present suit. But it
was further proved in, evidence, that on many occa-
sions (while tl,e parties so lived in Rome) it occurred,
that when Mr. and Mrs. Proctor were sitting toge-
ther in the drawing-room, Mrs. Proctor was often..
called out of the apartment, leaving her husband re-
maining there, by Marks, who was accustomed to
say that she was wanted by her shoemaker or by the
milliner, but which pretences were made use of in
order to permit Mrs. Proctor's adjourning to Marks's
room, where the servant, having admitted him into
the house, used to secrete Mr. Standish, and where
the illicit intercourse of the parties was charged to
have been frequently repeated. In one instance,
after Mr. Standish had quitted the house, Marks
found his watch upon the. table in het room, and
carried it to Mrs. Proctor, who appeared much eon-
fused, and Mal ks took that opportunity of endea-
vouring to persuade her mistress to break off her
adulterous connection with him ; hut she replied
only, by protesting her vehement affection for him.
Immediately uron the circumstances coming to the
ears of Mr. Ptectoe, which happened by .4titiedish'e
publicly mentioning his familiar intimacy. with Mrs.
Proctor, the former of those gentlemen adopted the.,
legal steps already noticed, It was in the same capi-
tal that Mr. French visited them; and id Consequence
of their former seciety at Naples, proffered hiscora-
paey to them on their intended journey, whiek.offee
was accepted. They travelled from Rome to Padua,.
Florence, Bologna, and Vienna; and afterwards arc(
Milan, Schauffhausea, Frankfort, and finally tattle's! •
sels. During this tour an adulterous intercourse apse'
pears to have been fern,ed between the same lady angle
M. French, and carried nu, on ids part, with great
adroitness and seciecy. It was his custom always to
travel on before them to the various stages, in order to.
inspect and hire the rooms at the different inns or'
hotels at which they were to stop, taking care that
his own bed room should, if possible, adjoin theirs.—
Having accomplished this point, his next care west°
bore holes with a gimlet through the partition, by
which means he was enabled to ascertain when Mr.
Proctor went out of his room, and avail himself of
these opportunities to go in. At Padua, he was ob-
served coming out one day of Mrs. Proctor's bed-
chamber, when her husband was not in the house.—
At Schaffhausen Mr. French's valet, one Lanterre, a
Frenchman, was brushing his master's coat, when .a
note fell out of the pocket, which he, not being able..
to read English, carried to Marks. It was directedk;
to French in Mrs. Proctor's hand-writing, and reale
thus —e My dear love, for Gon's sake be more care-•
ful; for Marks, who has just left me, has noticed the
holes in the door." At Frankfort Mr. Proctor be-
came very ill, and as he was sitting alone, his valet
Bacillery first suggested to him, one evening, theens-
pscrous conduct ot his wife and, French : he was els
ceedingly surprised at the intelligence, but could ob-
tain vet positive evidence, amounting to proof of the •
adultery. He determined, however, to part with hiss,
travelling companion, and on getting to Brush neer
quested Mr. French would.deiist from accompanyintt
them : some disagreement ensued, and that Gentlest:
man quitted theM. A private and fraudulent corer
respondence was, however, continued to be carried
on between him and Mrs. Proctor, after she, with
her husband, had returned to England, through. then
kind offices of a Mdme. Detree, a millener at Bensee
sels, by whom Mr. French's letters were forwarded to
Mrs. ProstOr, 'under the assumed name of Madman
Woodforte, and addressed to be left till called for, et -
the Saracen's Head, at Ware. The husband, having
bis suspicions awakened, and being determined to.
ascertain whether they were well-grounded, obtained
possession of one of these packets, the contents of
which revealed the whole history of this latter con-
nexion of his wife's. They had arrived in Busload in
August 1815, and went to live at Gordop's Hotel,
Lions v.-hence they removed shortly after.. •But while
they continued ihere, Mr. French returned from Pa-
ris, and took up his residence at Long's Hotel, and
immediately letters and ',resents were interchanged
in profusion between that Gentleman and Mrs. Proc-
tor ; for whom he ordered some rings, ornamented
with a variety ot significant devices, at Gray's, in
Bond-street. These, she observed to her husband,
she had received from a female trier. e. Having at
:length got back to Mau-docks, she was asked at dine
ncr one day, by the Rev. Mr. P.octor, tae father cf
her husband, whether she had Any command fur the

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post ? (at Ware). Stu bliuhuktausedingly ; and
the servant's returning, Mr. or discovered the
packet in.question. She then went to the house of
Mr. Hale, her father, and being confronted there the
next day, the 11th of October, with her husband, he
taxed her with infidelity, which she at first positively
denied ; but upon his producing the letters of which
he had obtained possession, she became exceedingly
agitated, and retired to her bed-room, whither Mr.
Proctor followed her, and took from her other letters
that jell: no doubt of her guilt. She then confessed
her adultery with French, and made attempts, by
imploring acknowledgments, to obtain a reconcilia-
tion. Being then within three months of her confine-
meat, Mr. Proctor yielded to the entreaties of herself
and the representations of her father, and did not
leave the house till after the acceuchentent had taken
place ; he then finally quitted her, and she appears to
have lived with her father from that period (January,
1.616,) to the following December.
-.The Learned JUDGE, after adverting to these facts,
Observed, that this suit was commenced in the begin-
song of 1817. Muck time was stated to have been
lost, by reason of the difficula in procuring wit-
nesses. He should not now inter into more minute
details ; the proofs of the adultery were abundant,
and .such. as were sufficient to maintain many more
than that one case he had now to decide. Thus far ,
there could he no doubt, that the husband was fully'
entitled to his separation. But the case did not rest
here; the Court was called upon to take cognizance
of other facts materially affecting, not the indisputa-
ble guilt of this female, but the title of the husband
to his remedy. Mrs. Proctor, notwithstanding all
the professions-which she made upon the discovery of
her correspondence with French, and after all her de.
clarations of sincere contrition, her entreaties for for-
giveness, and her promises of amendment to her hus-
band, bad manifested the most decided hostility to-
wards him. She had accused him,. in her turn, of
adultery with a woman named Charlotte Phipps,
whom he bad permitted to use his name, with whom
heehad.resided in various parts of. the town, in Here-
ford-street, in Marshall-street, Edgware-road, and
elsewhere, and by whom he was charged to have had'
achild. His Counsel, indeed, had acknowledged drat
fact. and• the usual plea, as to the identity of Mr.
Proctor with the person who so lived with her, and
her uon-identity with Mrs. Proctor his, wife, was fully
proved. Oa this state of facts, then, a question arose,
whether he had forfeited his title to a sentence of,
separittion or not? There seemed no reason to ima-
gine but that be had always previously confined him-
self to a strict fidelity to.bis own bed. If he hid not,
it he had forfeited this claim, the family which might
be now existing or hereafter to be born, would be-
come entitled to his name, and not mirely to the
rights of legitimacy, but to those of succession to Isis
estate. He might be the father of spurious children,%
and yet those children. would he-entitled to his pro-
perty, and himself liable for their debt. And what
would .he his remedy in that case ? He, must. resot t
to the almost insuperable difficulty of proving a non-
intercourse. with his wife, to preventlim front lying
under these most painful obligations.. By felling in
ells suit, he might be compelled to endure that the
offspring of a marriage bed, stained with pollution
and dishonour, should inherit his name, rights, and
property. This, then, would be, indeed, a' case of
great severity, as on the part of the husband there
were no previous irregularities on his side. .The law,
perhaps, provided some resource; for there was no
question that the legal nature of the marriage-con-
tract had its origin from the canon law,.hut not to
the extent of that law. The sacred obligations of
marriage might be suspended, but they could not be
extinguished. They were traced in characters inde-
lible and perpetual ; no dereliction of the mat riage-
dtrties.'rould annihilate that halkwed and solemn
contract, which by ,:he maxim of the law, was re-
cognised as inviolable. It admitted of no degrees
between living separate and being con hlered as still ,
cohabiting; and, therefore, there was no contempla-
tion as to spurious offspring. There was likewise no
distinction as to a husband seeking his remedy for the
adultery of his wife, he having committed adultery
himself, either before or after their separation. The
learned Judge said, he could not see with what suc-
cess any principle could be adopted, by which this
Court could release itself by any power of its own
from such authority, since the rule must come from
higher authority than these Courts possessed them-
szlves. Even after separation pronounced by this
Court, tJle indissolubility of the contract carries all its
consequences, and with those consequences must be
,taken the breach of the original contract, until dis-
solved a vinerdo, it contains as much as ever the force
of its existence. Taking the rule of law as binding
upoa this Court, the learned Judge said he could not
enter into a view of the manners of modern life, be-
cause the law did not furnish a sufficient remedy for
the mischief arising from the practice which the ca-
non.law had laid down. That there is no medium
between separation and actual cohabitation; there
certainly is incurred a great danger of spurious off-
spring, and the danger of their inheriting in case of
the death of his legitimate children. This Court still
remained under a legal obligation to administer the
canon law, until competent authority should provide
another. How far it ought to be revised, this Court
had no power or right to examine. With regard to
the husband, he was bound to lay himself under the
elivictest restraint of morals, and to adhere to it with
resolution. This should be impressed upon him so as
to fortify him against the temptation to infidelity,
ehe he will forfeit his legal remedy, and his children
remain exposed, whom he ought to protect with re-
gard to the claims of a spurious offspring. The law,
as it now stood, was applicable as a rule of equal
justice between the sexes.
in this case the COURT pronounced that the hus-
band was not entitled to separation, therefore dismiss-
ed the suit with mutual costs.
COURT OF KING'S BENCH, JULY 16.
ASSAULT ON A SEAMAN,
RHODES V. LEECH.
This was an action for an assault committed by
the defendant on the person of the plaintiff, on board
the East India Company's ship the Orwell. The de-
fendant pleaded, first, that he was not guilty :, and
secondly, that the assault was committed in the ordi-
nary course of punishment, by reason of the muti-
nous, disorderly, insolent, and improper conduct of
the plaintiff, and of his neglect of duty on board the
said ship, of which the defeidant was Captain. The

. . .
plaintiff replied, thatle had not acted in the manner
• impu
ted to hint, and thereupon issue wasoined.
Mr. SCARLETT stated the case to the Jury. He
said that the plaintiff had been a midshipman in his
Majesty's service, and was highly connected by birth
and connexions ; but in consequence of the peace he
was anxious to employ his time to advantage, and
accordingly he engaged as gunner's mate on board
the Orwell. That ship sailed to China and back under
the command of the defendant. During the home-
ward voyage, the stock of prcivisions became ex-
hausted,.and at last nothing, remained for the crew
but rice and peas. When the ship arrived in Mar-
gate-roads, the plaintiff wished to clean some of the
guns, the men complained of weakness, owing to the
want of proper and sufficient food, and the plaintiff
himself then endeavoured to go on with the work,
but was unable to do so. He told the mate, (not
meaning, however, that it should be communicated
to the Captain), that the species of food which he
had had for several days had reduced his strength so
much, that he could not move the guns. The Cap-
tain came on deck, charged him with mutiny, and
made preparations for flogging him, when the plain-
tiff preferring a watery grave to such ignominious
punishment, jumped overboard. The Captain, in-
stead of feeling remorse for this occurrence, expressed
a savage pleasure at the fate of the plaintiff, and
when some of the crew wished to save him by putting
the boat eut, he said, Oh, damn him, let him A
Deal boat, however, took him up, and brought-aim to
the side of the ship, when the Captain ordered him to
he dragged up by a rope, and desired the boatswain to
flol him. Eighteen lashes' were inflicted upon him,
while the Captain stood by, and deiired the officer
not to spare-him. The Learned Counsel said, that
he should prove this case to • the satisfaction of the
Jury, and shcrlld then leave them to award such da-
mages to the plaintiffai the injury requited.
Francis 11.iiison, gunner of the Orwell, deposed,
that Captain Leech, the defendant, was her Corn-
mandor on the list voyage. On the ith of May last
they were off Margate. The plaintiff and some of the
men had been employed about the guns.. Witness
saw the Captain on the deck in a rage ; he law him
strike the plaintiff, and then heard him order him on
ne poop. The fitit mate was on the quarter-deck at
that time. The Captain desired the boatswain to
turn the hands up. When they came on deck it Was
understood that the plaintiff was to be flogged. An,
alarm was then given that he was overboard. A Deal
boat piked him up and brought him alongside. He
could not get up, and the defendant ordered him to
be hauled up by a uThe's end. He was cold and
shivering, and complained to the Captain that be
was not well. The Captain said he would make
an example of him. He had mid that he was too
weak to level the guns, as he had not had a suffi-
cient.quant:zy of v!ctuals. The Captain ordered him
to strip, and if be coaid -rot strip, "the Master v.i.s
desired to cut his clothes off. He was stripped and
received eighteen lashes from the boatswain. The
Cafttain stood by at the time, and said, " You have
got a .ritscal there, do your duty," Witness did not
know that plaintiff had been a Midshipman. before;
but had always observed that his conduct was very
obedient and. proper. There had been a short al-
lowance for a fortnight or three weeks before ; they
lived on rice and peas, having no bread of meat.
William Field, servant to the Surgeon of the ship,
was below when the hands wire ordered up for pu-
nishment. When he got up, plaintiff was on the
poop, and the Captain on the quarter-deck. He
'heard l.i a order the master-at-arms to bring the plain-
tiff on the deck; he said he would make as exaniple
of him-to the ship's •CornPany. for having complained
of being kept on peas and rice. The plaintiff then
jumped overboard. Some one cried out "Lower the
boat." The Captain sail, " Never mind him, damn
him, let him swim." The Deal boat took him up.
He was stripped and flogged. The shie was on short
allowance. Six barrels of beef and pork were taken
out in China.

..... .
Peter Turney, tt seaman, saw the Captain when he
ordered the plaintiff to• be brought up. The Cap-
tain said a word or two, did not hear what they
were, and the Captain .den struck him on the face,
And ordered him ott the poop. He jumped overboard.
Witness and others were going to lower the boa:,
when the Captain said. " Never mind, let him swim,
it ‘+ ill do him gond." Two men in a little boat
picked him up. He was stripred and flogged. They
had had a short allowance for two or -three weeks.
Every man on board complained of weakness.
John Probee was t!te armourer of the ship. He
conirmcd the former statement of facts, and in ad.
dition deposed, that the Captain, ',peaking -of. the
Deal boat, said, " I had rather have gtve,n £lOO than
that boat shoald hak been there." _ _ _

Henry Earl, surgeon, in Berner's-street, Oxford-
street, examined plaintiff's back after his arrival in
London. It was in a state of considerable inflamma-
tion, and there wet e four places where the skin had.
perished. 'The marks remained 'to this day, and
would remain.

Jane Rhodes, mother of the plaintiff, deposed, that
her son was a Midsh;prnan, and by birth, education,'
and connexions, a Gentleman.
Mr. MARRYAT, for the defendant, said, that it was
by no means uncommon to punish a Midshipman on
board a King's ship when he misconducted himself.
He was himself related to several persons in the
Navy, and he bad heard one of them (now a Com-
mander) say, that he remembered with great satis-
faction that he had been flogged, when young, for
improper behaviour. The Captain was placed in an
arduous and difficult situation ; he found it necessary'
at such a moment to check insubordination, and the.
punishment which the plaintiff received' was not par-
ticularly severe, nor more than the offence in ques-
tion merited.--,The witnesses were then called, viz.

Air. Cousins, first mate, said, that the ship was
1313 tons burden ; it was a large China ship ; the
crew consisted 0f.1t16 men, including officers. Wit-
ness ordered plaintiff to draw the guns, to take eight
hands, and be quick about it, as the pilot wished to
get the ship under way. The order was only jr. part
performed : it could have been done in three hours
and a half. Witness asked why the *hole of the guns I
were not driwn ? He said they were all drawn but
four. Witness then said, " I can spare plenty of
hands." He replied, 44 0, I can't do it. I have been
starved on board this d—clship; Ilhave hein fed
upon pea-gravy ; I am too weak to do it." This was
insolently spoken. Witness informed the Captain of
What had passed. When the Captain came, the

plaintiff's deportment was !ITT improper—it was aj
kind ofliraeado. The' Captain said, " What do you-
mean by pea-gravy ? havel tot lowered the boat for
provisions? You ought to set a good example, and
not abuse an Officer.' Witness did not observe the
Captain strike him ; but heard him order him on the
poop. The Captain then orlered all hands up : the
crew 'assembled. The plaintiff jumped overboard.—
Witness was about to low& a boat, but one of the
officers forward called out " There is a boat off, Sir."
Witness then ordered them " to hold fast, and not to
lower the ship's boat." Plaintiff was brought on
board and flogged ; he received eighteen lashes; it
was not particularly severe; all the crew were round
to see it. In the outward bound passage, the plain-
tiff's conduct was very bad ; a man of he name of
Martin was punished; there was a slight insubordi-
nation, and the plaintiff joined the disaffected. On
the morning in question a boat had been sent for
provisions ; the voyage bad been about lour weeks
loner than usual.
Thomas Welsh was fourth officer on board •the
ship. The plaintiff proceeded to draw the guns in a
most dilatory manner. Never understood that he was
in bad health ; his appearance did not exhibit any
symptoms of declining strength. Saw plaintiff speak-
ing to the mate; did not hear what passed ; but the
plaintiff appeared to have been peaking to him in a
mild manner. Was present the day after the flog-
ging, when the plaintiff applied to the surgeon for
something for his back. The surgeon said, he did
not think the flogging was such as to require him to
be on the sick-list; and it would have a bad appear-
ance jibe were on that list when there was no injury.
The plaintiff said, he did not care for the flogging,
but he conceived 'that he had strained his back by
jumping from the poop overboard. When there was
a mutiny on board the ship, witness saw the plaintiff
go among the disaffected. Witness had the custody
of the stores on board the ship ; the passage was very
tedious. They had frequent supplies from other ships
on their voyage, but a foul wind kept them at sea
longer than they expected. Captain Leech killed his
Chinese pigs for the ship's crew ; some of them
weighed from 30. to 401bs. they were boiled • in the
soup. There was not .above one day that the ship
was without salt provisions. _ _

William Brinim. er, .surgeon of the ship, deposed,
that the plaintiff eau* to him, and asked him to look
at his back. Witness had seen him punished, and
said, a Surely you don't mean, that the flogging
makes it necessary for you to apply to me." lie re-
plied, " No ; it is on account of having sprained my
back in jumping over hoard." Witness then gave him
sotnething to apply to it.
• Mr. Andrews, the second officer of the ship, de-
posed, that he lived at the Captain's table. Ile beg-
ged to decline answering the question whether there
was a short allowance at his table for any time ; but
being told that he must answer that question, he said
that there had been a short allowance for four or five
days. The voyage was very tedious.
Mr. SCAIMETT addressed the Jury, contending
that the defence set up was an aggravation of the
plaintiff's injuries.
The Lotto Cum.-JUSTICE summed up the case to
the Jury. lie told them, that the only question for
their consideration was, whether -the plaintiff had
been guilty of mutinous, disorderly, and improper
conduct, and of neglect of duty, so as to justify the
defendant in inflicting punishment upon him? The,
misconduct of the plaintiff on the outward-passage
was irrelevant. Whatever punishment took place.on
the 4th of May could be justified only by misconduct
on that d:ty. If they thought that the plaintiff, un-
der all the circumstances of weakness, arising from
the want of food, had done his best to discharge his
duty, and had not been guilty of disorderly conduct,
then the defendant could not be justified, and their
verdict would be for the plaintiff. The amount of
the damages was peculiarly for their consideration ;
but he had always said, and he would now reiseat,
that in cases of this nature the damages should be
estimated with temper and moderation.
The Jury withdrew for about half an hour, and
then returned with a verdict for the plaintiff—Da-
mages, Five Ihndred Pouhds.

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