Star.
London, England, 1821-07-30 00:00:00

LAW INTELLIGENCE.

CONSISTORY COURT, JULY 28.
COOKE V. SQUIRE.
This was a suit for nullity of marriage, by reason
of impotency. The suit was brought by the husband
against his wife; and, in consequence of the ex-
tremely delicate nature of the evidence, was heard
by Lord STOWELL in the dining-room of the hall ad-
joining the College of Advocates, all persons, ex-
cepting the Counsel and proctors for the parties,
being excluded. The physical defects of the wife
were explained by the evidence of Sir Astley Cooper.
The case occupied an hour and a half in hearing, and
the Judge deferred the conclusion of the cause for
the sake of allowing time for the production of fur-
ther evidence, and of subjecting the party proceeded
against to a surgical examination.
TILE MARQUIS OF DONEGAL V. MAY, FALSELY CALLED
MARCHIONESS OF DONEGAL.
This case has been already more than once before
the Public. It is a suit of nullity of marriage, by
reason of minority, the marriage having been cele-
brated so long ago as the year 1795, and there being
issue by it several children, all of whom will, of
course, be illegitimated should the original contract
be set aside. Collusion between the two noble par-
ties was charged to have taken place on a former
hearing of the cause, and the argument was to-day
to have been fully entered into ; but
Dr. SWABEY took an objection to the jurisdiction
of the Court. His party (Mr. A. Chichester, M.P.),
who was die next in succession to the entailed estate,
in case the marriage should be declared invalid, had
already appeared under protest, alleging that he
was not liable in a suit of the present description
(which could only immediately concern the Marquis
and Marchioness) to be made a party, by beiiil
called upon to see proceedings. But the citation set
forth that the Marchioness of Donegal was of the
parish of St. James, in the county of Middlesex, and
therefore within the jurisdiction of the Consistory
Court of London. It was sworn, however, in the
proceedings, that she had resided for the four years
last past, and was now resident, in Ireland. This
circumstance, therefore, took the case entirely out of
the local jurisdiction of the Court ; and the Learned
Counsel prayA that his patty might be dismissed ac-
c. rdingly ft urn all further ob ervance of the suit.
The Counsel for the Marquis of Donegal (Dr.
ADAM.,) and for the Marchione.s (Dr. PHI Lumone),
both contended, that allowing the objection to be a
valid one, even then it was not competent to Mr.
Chichester's Counsel to take it. But there was no-
thing to shew that the noble party herself was out of
the jurisdiction of the Court. That she was resident
in Leland was sworn, only to the best of the know-
ledge and belief of a Mr. Stratford Robinson ; and
the mere f4cr of her having assented to appear was
sufficient to found the jurisdiction of the Court. The
cases of Lord and Lady Ile:bert," and Tenducci
and Tenducci," were cited in support of the position.
Lord SrowaLt. said he would take time to consider
an objection so important as this was, and give his
opinion in the matter upon some day next week.
ARKLAY U. ARKLAY.
This was a case of divorce, by season of adultery,
brought by Captain John Arklay, commanding a
Vessel engaged in the merchant service, against Mr.:.
Ann Arklay, his wife.
Dr. SWABEY stated the substance of the depositions,
and read the plea. It stated that Mr. Arklay, now
of the parish of St. Dunstan, Stepney, was, on the
20th of July, 1811, married to Mrs. Ann Mocre, a
young widow lady, in the city of4lontreal, in Lower
Canada, under and by virtue a license obtained
from his Excellency Lieutenant-General Sir George
Prevost, Governor and Captain-General of the Pro-
vince. A certificate of the solemniaation of such
marriage by a Minister if the Presbyterian congre-
gation of Montreal was among the exhibits given in.
Froni the time of their union to the month of June,
1818, the parties lived and cohabited together, ex-
cepting during the periods of Captain Arklay's un-
avoidable absence on trading voyages; but in that
ntbnth, upon his return from the West Indies, he was
informed of the misconduct of his wife, and imme-
diately withdrew himself from all further coha-
bitation with Mrs. Arklay. It was upon this case (the
Learned Counsel ob,erved) that he should submit,
when the depositions had been stated to the Court,
that Captain Arklay was entitled to a sentence of se-
paration from his wife.
The deposition, were generally to this effect :
That on the arrival of the parties in England, they
resided in a house in Burr-street,. in the I'ari:h of
Stepney, which had been furnished by Capt. Arklay.
Sarah Thomas stated that she entered their service in
the year 1817 ; and Mr. At klay having, in the month
of April of that year, sailed on a voyage to the Wea
Ladies, witness became greatly astonished at the very
improper behaviour of her mistress, and told her
that she was desirous of leaving her service. She was
informed that if she chose to do so, she might; but
she was desired to observe, that it would be without
her wages, and without her trunk. Upon this inti-
nation witness thought proper to stay ; and, in return
for it, she appears to have employed self in nar-
rowly watching the steps of her mistress. The
result was, that very shortly afterwards she surprised
her " with a Frenchman," in a criminal situation upon
a sofa. While they still continued, Mrs. Arklay
formed an acquaintance with a person of the name
of Johnson, to whom she became exceedingly at-
tached, and with whom (as this witness deposed) she
had adulterous intercourse. In the latter end of the
year 1817, Johnson was arrested and confined in the
Marshalsea. Prison, whither Mrs. Arklay followed,
and where she at times cohabited with him. The
volatile affections of this lady weie next transferred
to a Dr. Mayne, who called himself a friend of her
husband's; and for this individual she desired her
servant to prepare a bed on the sofa, which seems to
have formed an important part of the furniture of
the house in Burr-street. She retired at night to her
own room; but when the doctor was in the house
she gave instructions that she should be denied to
everybody else. At length the doctor was compelled
to leave London, and to go to Portsmouth, from
whence he was to embark for a foreign station. It
was stated in evidence that Mrs. Arklay repaired to
the same place, and cohabited with him at the Star
and Garter Inn; but in this, as indeed in many other
parts of the case, the lady's identity was not very

satisfactorily proved. A Captain Thompson, fe off
the good ship the Sparrow," was the next party al-
luded
to in this vagrant evidence. He used to he
with Mrs. Arklay very often; but, so far as could
be understood, no very formidable impeachment was
brought against this unfortunate lady upon his ac-
count. But a Mr. Milton, the next in succession

-- .
upon this procrastinated list of favourites, obtained a
more decided and more enviable distinction. He was
in Burr-street "late and early ; he was informed, by

a message delivered through the same conscientious
witness, that her mistress was quite alone, and wished
him to see her and keep her company ; and he
became the object of the most benevolent vigilance
that the witness could exercise. For she deposed,
that her suspicions having been long excited, she
had one night resolved to see what was going on."
Mr. Milton, it appeared, purposed to repose upon
the same hospitable sofa which had before been te-
nanted by Mr. Johnson and Dr. Mayne: but upon
this fatal night, the witness feigning herself to be
asleep, and deceiving her mistress into a belief that
she was so, watched that Lady's conduct very atten-
tively. She went up stairs into her room, and wit-
ness observed Mr. Milton following her. She was in
her robe dc chambre, and without her shoes : Mr. Mil-
_

ton was without his coat, and equally destitute of cer-
tain other necessary habiliments. Witness saw them by
" the light of the moon," which was shining through
the stair-case window, it being then about three o'clock
in the morning; and after they had gone into Mrs.
Arklay's room together, she (witness) went to the
door and tapped at it, but no answer was returned.
She then told her mistress that she wanted to come
into her room, hut still no answer was returned, al-
though she heard the Lady and Gentleman within
" laughing and tittering together." Thus disappointed
in her applications, this disconsolate servant returned
to the parlour down stairs ; and consoled herself, by
removing certain bed-clothes from the sofa, which
h-ad been abstracted from her own bed for the pur-
pose of warming and cherishing Mr. Milton, who
had so ungratefully renounced their coverture. The
other witness in this came was a Mrs. Lee ; who, as
well as her servant, deposed, that in the month of
January, 1819, a Lady, at that time unknown to her,
but whom the deponent had since ascertained to be
Mrs. Arklay, wife of Mr. John At klay, party in this
cause, came to her house, in Upper Eaton street,
for the purpose of hiring lodgings. The Lady
stated that " she never before had lived in lodgings,
but had always kept house; that her husband, Cap-
tain Arklay, was at that time out of England, and
trading upon the coast of Africa." The witness de-
manded the usual references, and was, by Mrs. Ark-
lay, directed to address herself to one or two places.
and to the counting-house of an eminent merchant in
the City, the owner, or the consignee of her husband's
ship. At all these places, Mrs. Ai klay, the party in
this cause, was spoken of and described " as Mrs.
Arklay, the wife of John Arklay, party in this cause,
and as none other." During her residence at the
house of Mrs. Lee, it was charged that she had com-
mitted adultery with several persons, but especially
with a Mr. Gordon. Tnis Gentleman, the last re-
corded " elite," was represented to Mrs. Lee as an
especial friend of Captain Arklay, and under whose
" protection" he had left his wife dining his absence
abroad. The lodgings were obtained in May, 1819,
and Mr. Gordon interposed in the matter. The mar-
riage of the parties in the cause was proved by a Mr.
Young, who was present at the ceremony ; and a Mr.
Hardy proved the absence of the husband at the dif-
fsrent times laid in the libel, and which took place
when be was upon voyages to and from Sierra Leone.
Dr. SIVABEY admitted that the identity of- Mrs.
Arklay and tlrs other parties was in form not very
sufficiently proved ; but the Court would consider
the difficulty, not to say the impossibility, which
must necessarily be experienced on that head in cases
like the present. Here the difficulty was greatly in-
creased by the very fact of the ettreme profligacy
which had marked the conduct of Mrs. Arklay; so
extensive an acquaintance (where the parties, too,
many of them had been passing, no doubt, under
feigned names) made any satisfactory identity a thing
almost impossible to be arrived at. The evidence
upon the point, though not as full as might perhaps
be wisliO, was yet sufficient for the purposes of veri-
fication. It was not to be expected that Captain Ark-
lay should have produced further proofs, because, as
the Court would observe, he was absent timing these
transactions, on the business of his profession, and
chiefly occupied in voyages to and from the West
Indies. Unquestionably this Sarah Thomas was a
single witness, and her testimony was not corrobo-
rated by that of any other person living in the house
at the same time. Yet lie (Dr. Swabey) did submit
that sufficient had Leen shewn to satisfy the Court
of the propriety of granting Mr. Arklay's prayer
of separation.
Lord Srowata. asked, where was the defensive
plea in this case? He did not see it among his papers.
Dr. JENNER said, he would not detain the Court
upon that plea, which was of a recriminatory nature,
because he was aware that it was not sufficiently
established by evidence to enable him to support it
with effect. It was, in substance, this—that shortly
after these parties went to reside in Burr-street, Mr.
Arklay heat Mrs. Arklay so violently and cruelly,
that her life was despaired of. There was also a
counter-charge against Mr. Arklay, of an adulterous
connexion with Charlotte Godinge, their servant,
who, in April, 1815, became pregnant by him, and
• was removed by him to lodgings in the City-road,
where she was delivered of a child, and where she
was for .a long time afterwards frequently visited by
Mr. Arklay. All these were grave charges ; and had
they been backed by sufficient testimony, he (Doctor
Jenner) should have felt it his duty to urge them at
some length. In the defect of evidence, however, it
was not upon this part of the case he meant to rely.
Dr. LusitINGTON, who was Counsel with Dr. Swa-
bey for the husband, begged the Court to recollect,
that this individual was a naval man. From the na-
ture of his occupation, and the narrowness of his in-
come, it was not likely that he should be able •to
furnish more ample or more explicit evidence. The
Learned Counsel, after defending the evidence of
Sarah Thomas, remaiked, that the question of iden.
tity was completely settled by the conversation which
Mrs. Arklay held with Mrs. Lee, upon taking her
lodgings, and the inquiries which Mrs. Lee made
in consequence.
Dr. JINNAR contended, that if the evidence of the

witness, Sarah Thomas, had been the only,testimony
in this case, nothing could be supported as against
Mrs. Arklay ; for up to the period of Captain Ark-
lay's departure from England in the year 1817. her
conduct must he taken to have been unimpeachable,
seeing that nothing was alleged against it. If his
Lordship looked at the date of Thomas's discharge
from the service of her mistress, and the date of the
adultery acts alleged in the three additional articles
i which had been given in, be would find the latter bad
taken place after the witness had quitted the service.
Dr. Limn' Nororr conceived that his Learned Ftiend
was in error on this point. Sarah Thomas was not
introduced in those latter articles to depose to any
of the facts alleged by Mrs. Lee, but to vet ify her
former evidence, and to corroborate a part of Mrs.

Lee's testimony.
Dr. ENNEK, in continuation, observed, that the
three additional articles had been subsequently given
in, and pleaded acts of adultery said to have been
committed during the absence of her husband. To
the fifth and sixth articles of this libel no witnesses
had been produced ; to the others, Sarah Thomas
was the only witness examined. It was true that Mrs.
Lee, in the three latter articles, deposed to the visits
of a Mr. Gordon, with whom Mrs. Arklay was al-
leged to have entertained an adulterous connection.
But in no part was the identity of Mrs. Arklay suffi-
ciently, or indeed at all, established ; and the Court
would not, he thought, upon evidence so very de-
ficient in this most important particular, pronounce
the sentence prayed.
Lord STOWELL was quite satisfied with the proofs
in this case. There were, indeed, some deficiencies,
particularly with respect to that point which had
been just urged by the Learned Counsel, that might
have been supplied by a little more accuracy, per-
haps, on the part of the examiner. The Lady's own
Counsel had admitted, that if the identity of his party
had been sufficiently made out, the charges were fully
established. His Lordship thought that identity had
been quite established by the circumstance to which
Dr. Llishington had directed the attention of the
Court ; and no doubt could exist as to the fact of these
illicit connections. Ile therefore pronounced for the
prayer of the husband.