Star.
London, England, 1821-10-20 00:00:00

'CORK ASSIZES.

JAMES GRAHAM, TOBIAS VA.RSTON AND WIFE, SUSAN
GRADY AND OTHERS, PLAINTIFFS; HENRY WHIT-
MARSH AND WIFE, JOSEPH FRANKLIN AND WIFE,
JAMES WALL AND OTHERS, DEFENDANTS.
This was an issue directed from the Court ofChan-
cery in England to the Court of King's Bench in Ire-
land, to try whether the plaintiffs were the legitimate
children of the late Major James Graham, and born
in lawful wedlock or not. In order to prevent any
question that might arise as to the jurisdiction and
power of the Court olChancery of Enabland to dii ect
an issue to be tried by a Court of Law in Ireland, a
short bill had been filed in the Irish Court of Chancery,
praying that the issue may be tried in this country,
and the Court decreed that the issue should be tried
accordingly. The case excited great public interest,
and came on to be tried before the lion Baron Sir
WILLIAM SMITH, and a Special Jury. The circum-
stances.of the case were shortly these :—ln 1819, the
lion. John Clinton M.AnifF, late ofihe island ofJa-
maicas died intestate and without issue, leaving a con-
siderable personal property both in Jamaica and in
England. Ile was newly married: the-defendants
were his first cousins, and four of his next of kin.—
Administration to his of in England was granted
to Mrs. Whitmarsh, one of the defendants, by :her
then name of Smith. In the year IS2O the plaintiffs
filed their bill against the administratrix and the other
defendants, in the Court of Chancery in England, al-
leging that they (the plaintiffs) were six of the first
cousins of the intestate, John Clinton M'Aniff, and
that they were lawful children of Major James
Graham, late of Ballylawrence, in the county of
Cork, who was the son of Peter Graham, the mater-
nal grandfather of the intestate—that Major Graham
was lawfully married to Mary Daly, the mother of
the plaintiffs, in the parish church of Ballyhelly, in
the county of Cork, prior to the year 1785, and about
forty-five or fifty years ago, according to the rules
and forms of the Established Church of Ireland, by
the Rev. Crowder Dowden, a Clergyman of the
Established Church, the Rector of that Parish. The
plaintiff's stated, that they were the children of that
marriage, but that the Parish Register, containing an
entry of marriages prior to the year 1785, was for-
merly kept by the sexton of the parish—that his ca-
bin had been accidentally destroyed by fire, and with
it the registry of the marriage, but that the solemni-
zation of the marriage could be proved by old per-
sons who were present thereat ; that Major Graham
always acknowledged Mary Daly as his lawful wife,
that their marriage was a marriage of public noto-
riety, and that she was well known and reputed to be
his lawful married wife—that Mary Daly, being by
birth and fortune inferior to Major Graham, his re-
lations were displeased with such marrriage, and
refused to visit her, yet they acknowledged her as
hislawful wife during his life, and as his widow after
his death.
Mr. WAGGETT stated the case on the part of the
plaintiffs. The Learned Gentleman made a most
powerful, eloquent, and pathetic appeal to the Jury.
The.late Major Graham, an eccentric 'and irregular
person, was descended of an ancient and respectable
family, and inherited their estates ; but by a long
course of folly and extravagance, became ultimately
reduced to a state of the most abject poverty. Early
in life he met with the mother of the plaintiffs, then
a young woman in the humble ranks of life, who, ac-
cording to the statement of the Learned Counsel, co-
habited with him for some time, but previous to the
births of the plaintiffs, became his lawful wife, and
remained faithful and constant to him through all
the varieties and misfortunes of his life. The Learned
Counsel said, that the legitimacy of the ..!aintiffs was
not disputed until the death of Mr. M.Aniff, and
until it was discovered that he had left a large for-
tune, to which, in common with the defendants, they,
if found to be legitimate children of the late Major
Graham, would become entitled to equal shares..
The Learned Counsel went on to say, that the plain-
tiffs, before any proceeding had been taken on their
part, were anxious to have the matter settled in an
amicable manner, and they applied accordingly to
Mr. Whitmarsh, whose brother had lately married
one of the defendants, and who is an English Bar-
rister of considerable eminence, to whose arrangement
the case had been confided. That Mr. Whitmarsh
had taken an honourable and liberal view of the sub-
ject, and in answer to an application, on the part of
the plaintiffs, addressed a letter to their agent, in
which he stated, that should satisfactory evidence be
produced to prove the legitimacy of the plaintiff's,
their claims would not be contested by the adminis-
tratrix. Affidavits were prepared and forwarded ac-
cordingly, but a Mr. Franklin, one of the defendants,
meeting the question in a less amicable spirit than that
of Mr. Whitmarsh, the English Barrister, determined.
to contest the claims of the plaintiffs, and broke off
every prospect of an adjustment by a letter addressed
by him to their agent, in which he denied that the
plaintiffs had any just claim, and that he would meet
the matter in Court, and contest it step by step. The
Learned Counsel, after dwelling on the hardships of
his clients' case, and on the great advantage which
the opposite party had over them in consequence of
having got possession of their evidence, concluded a
very eloquent appeal to the Jury, by entreating them
to do justice between the parties. Two ‘N se s
were produced, who swore that they were present
when a marriage was actually solemnized in the
ruins of the old Church of Ballyconolly, between
Major Graham and the plaintiffs mother, by the
Rev. Crowder Dowden. These two persons, one al
female of the name of Mary Murley, the other a per-
son of the name of EJmond Guery, were servants
living with Major Graham, at the time of the alleged
marriage; they stated that- three Gentlemen of the
neighbourhood were also present at the marriage;
I but these Gentlemen, the Clergyman, and the clerk,
! were all dead.
They were cross-framined at great length and

FRICN SE'.IIN-PENtF.

with great ingenuity by Mr. H. D. GRADY. Guery,
on his examination, said, that at the time of the alleged
marriage, the female witness Hurley was a servant
in the Major's house; but Marley, on her cross-exa-
mination, admitted, that at the time she was not a
servant, hut lived with her father a short distance
from Graham's house. These witnesses OA one or two
other points contradicted each other; on the main
fact, of having been present at the marriage, they
however agreed. A number of other witnessei were
produced on the same side, some of them proving
actual declarations of Major Graham, with respectto
his marriage to the plaintiffs' mother, and all of them
the reputation of the country upon the subject.
The plaintiffs having closed their case, •
Mr. Grtauv, in a powerful speech for the defend-
ants, impeached the case of the opposite party, as
being a base and odious conspiracy. He dwelt with
great force on the improbability of the alleged mar-
: there was no record of such a marriage—no
registry—no certificate—no license. It was, indeed,
stated on the other side, that the parish registry was
destroyed by fire, but no evidence was given on that
head. Two witnesses were produced who asserted
that they were present when the marriage was so-
lemnized—but those wretches contradicted each other
in many essential points.—(Here he went into a de-
tailed examination of the evidence, and pointed out
in a clear and forcible manner in what respect the
account of one witness differed from the account of
the other.)—lt was a remarkable fact, that those low
menial persons were the only witnesses brought for-
ward to prove an actual marriage. They mentioned,
indeed, the names of three respectable Gentlemen,
ho they said were also present ; but these Gentle-
men, and the Clergyman, and Claa k, were all dead.
Could the Jury, in the absence of the evidence
which, if a marriage had taken place, could be
easily produced, find a verdict for the plaintiffs
upon the solitary and, indeed, self-condemned evi-
dence of those mercenary and menial persons?--
The Learned Gentleman next observed upon the
evidence of the other witnesses for the plaintiffs : they
were not, he contended, worthy of credit, andconld
not for a single moment stand against the powerful
effect of the evidence which he was prepared to lay
before the Jury—evidence which would prove be-
yond all doubt that the unfortunate Major Graham
was never considered by the country as a married
man; that, on the contrary, he was always looked
upon as a bachelor, living with a kept mistress—
with a woman who was never received as his wife,
who was treated even by his own servants as his mis-
tress, who was never acknowledged as anything else.
He would also be able to prove that Major Graham,
far from acknowledging Mary Daly as his wife, fre-
quently declared that he was never married. Nay,
more, he would shew the Jury, by the evidence of a
most respectable Gentleman, that the reputed scn of
the Major, one c,f the plaintiffs in the present case,
enlisted_in the South Cork Miiitia, under the name
of James Daly, and confessed that he was the natural
son of Major Graham. In the absence of anything
like satisfactory evidence on the other side, with the
universal opinion of the country that no marriage ever
existed between the parties, with the declarations of
Major Graham himself that he was never married,
with the declaration voluntarily made on the part of
the plaintiff, James, that he was iLegitimate, the Jury,
in his opinion, could not hesitate to find a verdict
which would promote the ends of justice and do ho-
nour to themselves—they would give a verdict against
the Fiaintiffs.

A number of Gentlemen of a respectable class in
life were produced for the defendants : they all
proved that they never heard of any marriage be.
twcen Major Graham and the mother of the plain-
tiffs—that the reputation of the country was that he
was never married.

Robert Beecher, Esq. formerly of the North Cork
Militia, was produced. He swore that he knew a
man of the name of James Daly in his regiment.--
James Daly, in a conversation with w►tness, con-
fessed that he was the illegitimate son of Major
Graham, and that he tack the 'mire of Daly be-
cause that was his mother's name.

The witness was cross-exlmincd.—l-Te denied hav-
ing ever interested hi►r.self for the defendants. Ile
had made some inquiries, but they were made for
the sake of justice. He did not know when he made
those inquiries that the present trial was to have
come on in Cork.

Mary Morgan, a follower of the Major's family,
said she recollected the day when Mary Daly was
brought by her mother to the Major's house. She
since lived with him as his kept mistress: she was
always called Moll Dawler; she was never consi-
dered his wife; witness recollected that Moll Daw-
ley was called in the chapel by father Welsh, for
haying lived w;th the Major ; witness recollected that
one day v.llen the Majors piper; Sheehan,- began to
regret that Mr. Hare was about to take possession of
the place, Mary Dawley said, " It is nothing to me,
for neither me nor my children will be ever able to
enjoy it." Witness recollects that, some time before
the Major's death, he called at her house at Donne-
rail ; witness said she heard that he was married to
Moll Datvley ; he replied, " Oh, no, Mary, anything
but that—anything but that."
On l!er cross-examination she said, she never heard
from any one, till lately, that the Major had ever
been married.

By the insige.—Then yon must have told :1 lie to
Major Grithani, when, at Dodnetail, you said you
heard he was married ?

Witness.—Y;s, my Lord, I did, to try him.

defendants clmed thei r case—Mr. GooLo spoke
to eviJence—.the Learned Judge charged directly in
favour i f the plaintiff.,—the Jury :smile," for a few
minutes, and returned with a verdict finding that the
plaintiff, were the legitimate children of the late
Major Graham.

AMERICA.

Remarkable Address of General JAcKsoN, to his'
Soldiers, on the breaking up of the Southeto Attn:- :
•.. Head-quarters, South Division, Montpelier, May.3l.
- This day, Officers and Soldiers, closes my military functions,
and consequently dissolves the military connection which has hi-
therto existed between yott and myself, as the Commander of the
Southern Division of the Army of the United States. Many of
us have possessed tog( ther days of toil amlauglits of vigilance.—
Together, we have seen the termination of one British, and two
Indian wars, in which we leave encountered fatigues, privations,
and dangers. Attachments and friendships, formed• by associa-
tions of this kind, are the most durable, and my feelings will not
permit me, in retiring from my military command, to take a
silent leave of my companions in arms
" Justice to you, and to my own feelings, requires that I
should place before our common country the testimony of my
approbation of your military conduct, and the expression of my
individual regard. Under the present organization fur th,e re-
duc:ion of the army, agreeably to. the Act of Congress, many
valti..ble Officers who have served with me, have been suddenly
deprived of the profession which they had embraced, and thrown
upon the world. But let this be your consolation, that the gra-
titude of your country still cherishes you as her defenders and
deliverers, While wisdom condemns the hasty and ill-timed po-
licy which has occasioned your disbandment, and that too while
security was yet to b,: given to our extensive frontier, by the
erc:rion ~f the tieee,=ary fortifications for its defence, greatly ex-
tetidA as that homier has beets by the recent acquisition of the
Florida". But you, fellow-schin•rs, have that winch cannot be
taken nom you, the consciousness of having done your duty,
and, sa jib y,ur brother Officers who are retained, of having de-
fended the Anteri;:an .17..g1e where it was endangered.
" To you, my brother Officers, who are retained in the ser-
vice of your conotry, permit me to recommend the cultivation
of that harmony and friendship toward% each other, which will
render you a band of brothers. It is your duty so to conduct
yourselves on all occasions, as that your enemies shall have no
Just cause for c, nst:re. ft ought wbe borne in mind that every
Captain should be to his Company as a father, and should neat
it as his family. as his children. Continue, then, as betrtofore,,
when under my command, to watch over it with a father'
•dtrness and rare. Treat them like children; admonish them ;
u:;s1 if, unhappiiy, admonition will not have the desired effect,
coercion must. Tice wait of discipliue and order will inevitably
produce a spirit at insuborditiation, as destructive to the army
as cowardice, and win :.s certainly lead to dLustrr and di;r::ce
in the hour of battle ; this, as you regard your military reputa-
tion mid your country's good, you must prevent. linFloring
from lIKAVEN a bit dsing upon you all, I bid you aa affectionate
adieu: " AN DB EW JACKSON,.Major-General,
• Commanding the Division of the South."