The Statesman.
London, England, 1820-01-28 00:00:00

TOII9TTII F. nALL.

.--..........---
Mr. lioNa reeved fur a new trial in this ease, which
it will be ;ecolierted was an action against the &f, nd-
+ art infringing the -plaintiff's patent for an improved
us of discharging fire-arms by means of perettssat-
ing Iminatin gunpowder. The plaintiff had a ver-
dict of 300 i.; and _ .

The Coral, after hearing the !Armed Counsel at
very considerable length, refused the rule.
eenro r. CUATMAN.

A motion was Milk by Mr. litiaTA TT, to set aside
the emeriti', situ obtain a rule r a new trial in this
ease. It was an action tried at floildhall against an at.
tbrney, to recover baek an item in his bill,*hich, it was
:11.04, lie coold not maintain. The defendant was
employed by the plaintiff to prepare an affidavit sin which
to found a commission of bankruptcy from the Court of'
Chancery against him. lie was fortunate enough, how.
nor, to get terms from his creditors, and the commis-
sloe cemsequently became nnnecesury. The affidavit
was never sworn, and from that it was, argued, that as
no proceeding was had in open Court, the bill was there-,
tom sq fir net taxable.
irhe Coen?: however, thonzlit that it was a prelimi-
nary step to found .a proceeding in open Court upon,
and that it was that sort of service for which the
db-
feudattt was entitled to claim, not a patients, *tenth, but
a fee tinder the Act of Parliatnent. It was, therefore,
ordered that the nonsuit should not be disturbed.
ACHES COURT, DOCTORS' COMMONS, JAN. 27.
iIIPOTENOY.
woaToN P. MILTON, lALSZLT CRADLING nansci.r NORTON.
.tair Jon,. NicinoL, to giving judgment on the above
nnossiow, observed, this s'it was brought by (leorge
Nation, Req. against Sarah, his wife, in order to declare
their onarriage•nuil and void.
The libel given in pleaded-the marriage to have taken
plass in Janis, 1812, he heist of the age of 45, a bache.
bee. sad the wife of the ate of 23 rears, a spinster; that
their mutual bed, board, and enhaisitation, continued till
June, 1819. That during such cohabitation they were
butts in good health, bat the husband found himself un-
able to oonsummate his said marl/age, by reason of na-
tural iansiiment and defect in the virile parts, and that
thieleneld be preved by the .fnepectioa and certificates
et reipeetalshm medical profesuoi
The libel is mat by an alitegation on the part of the
wife,-by which the husband's *tit is opposed, mad pray.
log that such may he diiisissed.
The ghosting' before the Court now was, whether it
conlakaatertiia *nth init; and whether the facts stated
in the libel, being hie of proof, the husband is
en-
tithel to his this •itase, the Coed scald
taker the faces ao. true, or, that is, capable of proof;
for the very atintiasinn of the plea waito prove the facts.
in eider to dalginniue the douhts entertained, as to the
admissibility or this libel, the Coert utast leek to the
faineos eietunnamestes pleaded sad the oh)entiona made.
The Ara objpotiost to this suit was holing altogether
of oriel Madh for, after the meet diligent monk, se
saw iwkfuuari wbarr a party' had broaght a fait
toiwAsesS_hiMlboetitage void, is alleging hid herd Mel.
panto4•:-Thhathei•snt set vdth the Lashing setting op
i
b.veri cum and obese theparty evonninials has

su 1806,
Another eirctimetance worthy of libel,
the husband was stated to be aged 45. Now, that a
man aged 45 should be ignorant of his bodily defect,
in this respect, was most incredible. But if this was
not to be presumed, it seminal to the Court incapable of
proof by direct evidence. The presumption in this case
was in favour of the marriage; and, as to non-capacity,
the husband must prove all necessary facts in order to
invalidate the marriage. Here was a cohabitation for a
period or get en years before this suit commeiseesioind he
whist ere then hi* discovered his incapacity. Although
lapse of time might not be an absolute bar to this suit,:
brought by the party injured, it.had been so decided is
this Cooort • but the Court of Delegates held otherwise
in Ball r. /tall. The wife's modesty might account for
delay to institute in such suit, from the delicacy of the
sex ; and this *polars was eynally allowed in Mat of
wife complaining of her husband's adnltery : hut a delay
of beven years, on the part of the titan, was not a rea-
minable presumption in alleging his own fraud. Here,
be had not only defrauded the wife of her marriage rites
and property, but he comes forward seeking a remedy
against the wife, and averring his own misconduct. It'
therefore increased the presumption against him vet)
much at to the facts to be imposed upon him. Another
circumstance was this being a marriage by licence, and
it being usual for the man to obtain the lieeutw, the pre-
sumption was its being obtained on his own atiithttit.
He there avers no impedimeut ; hut here he tunics for-
ward afterwards to aver impediment in the fore of
his own affidavit,—his I.abeequent averment, there-
fore, is to be presumed the most incredible. Au-
other thing is, he cannot obtain collateral proofs
bat such as are against him. It had been stated that
the wife was pregnant, and he could not call fur proofs
of incapacity front her which it lay upos him to pro-
duce, as to whether or unt the marriage wag &meow-
mated ; for, if out constentnatei!, then that would be to
criminate herself; and then, pro, cries the inspection of
hers by select persona, was huuther species of proof.
So that, in point of.peatoof, this rase mast lest bpots his
inspection by medical own. Was there any case, where
the report of inspectors applied to otte party was me-
rited, on which to pentameter aullity of marriage? This'
coarse of proof hail always been received with a eitnsi-
deralole degree of ealcion and envie' , and had never
been held suificient ou eLiwl torrououncoe mummer of
But in this case, where there was pregnancy
of▪ Mt; wife, the Court was railed upon not only to an-
nul the marriage, bat to protionnee the wife an adul-
terra'', and to bastardise the ismte. Had there ever been
a case to bastardise the issoa-bat in that of user-stress ?
'fail bastardy ever been established,apou the incapacity
or frigidity iif the husband? Here there had been eon.
stunt at-eras. add, a+ a proof of ronsuunnatiuti, thl wife
was pregnant, winch was a proof they were boils of
them an:tiles matrintodia, yet the Conti was here railed
upon to pronouuce that the fruit of this marriage, with
which the wife. it. pregyant, is net hie progeny. In
order to support sorb a eta, it would be neee.sary that
the law authority'should be clear beyond all doubt. It
had been said the public had a right in ascerteio the
state of the party: that was true, where a marriage is
*laid to all intents and ',lupines—hut the tliestion here
was, not that this marriage was said. but whether it
was voidable? Blackstone says, that bodily injury or
consaeguinity only make a marriage void. The /441 of
the marriage remains valid, if the state of the party is
not ascertained. The Mil authority upon which the
Court could be called on to entertain this suit, was that
of the Text or Canon Law ; theu it was necessary tit ice
bow far that law aoplietl to the circumstances uf
CAM', awl if it had been received into authority. as the
law of• this count ry.—liveretals, b. 4. a. 15. c. I.—lf a
inan applies, alleging incapacity, he may be separated ;
but if it shall afterwards appear to the Church that this
was erroneous, that marriage shall remain good. Again,
if a man shall contrast wills an incapable woman, seire,er,
be shall not be separated. [Alter observing upon the
entho:ity of Commentators ou the ('anon Law, the Juliet)
bproceeded.] Here was a bodily defect, whirls must have
een knouts to the party snore than can be apparent on
inspectiot.. Where the wife joined with the husband,
on account of his impotency, the suit might he main-
tained—bid that was not the case here. She resists the
snit, and her pregnancy- proclaims his ability. The in-
spection of the wife, and her answers upon oath, might
be required, but could uut be übtaiued iu this ease. sty
the Canon Law, if pregnancy arose upon a second mar-
riage, the first marriage was valid, and the second mar-
riage null anti void. The original marriage upon which
he was separated from his wife was to remain valid, if
the cause, impediattoto, were removed ; and this must
be the case where the wife is already pregnant. There
was sonuthing in the Text Law here which did not seem
to he the law of this country. Übe contracts a mar-
riage with incapas ity in himself, *rimier, the presump-
tion in that case is stronger against him, than ar;emier
as to incapacity in the wile, where his remedy is denied,
because be has defrauded her of her rights. There was
no Precise case had ever happened whereon this Court
had adopted the Lillie rules es contained in the Canon
law, where a suit hail either been brought sir main-
tained by the impotent party ; hut if the Canon Law be
direct, it is not adopted by the law of England so as to
entertain this snit. NO principle was more cleerly laid
down, than that Do person shall take advantage of own
fraud to void his own contract. The maxim of the Can-
non haw was—" Doles acs sal veleloif reanedia, &c." By
the defrauded party alone had such suits been main-
tained, praying to be relieved.
Upon the whole of this case, and on all the argn-
meats urged upon the facts stated in this libel, the
Court tvera of opinion the husbantrwaisot retitled to
the remedy he prayed ; it was, therefore, the duty of
the Court to dismiss the libel, and the wife from this
suit.
CONSISTORY COURT, DOCTORS' CO4I3JONS.
MORTIMER r. RIOETIMIR.
This suit has been brought by the wife against her
husband, for restitution of conjugal rights, the parties
having been long separated. The question this day be-
fore the I 'ourt was Upon the admission of Al r. Mortimer's
responsive allegation; and the objection WON gave rise
to an argument of considerable length.
Sir 1% mt.' Ili SCOTT ecirressed himself anxious to hear
every thing that the Learned Counsel had to offer upon
a case of so much importance, in which the Court waa
called upon to decide whether the previous confessioo,
of a party should he allowed to operate la bar of a fa-
tore suit, and how far it would be received in proof of a
feet charged against her.
It appeared from various articles of the allegation,
that ,lohu !Mortimer, Esq. and Frances. his wife. being!
resident at Blackheath. a hir. William Aleeander Young,
who had been recently married, wasintroduelel to them
in the year INO7. A great intimacy sabsistitig hewed,
this individual. and slr. Writer., he *me very (reel
+witty as that gentleutho'a Wait flaring his absence ip
London, opal his eostmosey business; sad, sib suds et.'
regions, Mrs. lloatiaser and hh: Young Weft frinuentiti
alone together, it was .pleldeds in private 'ponies Ina'
in various houses.-- It-was further pleaded, that na the
17tharf Aaltust,. Fraacea Author'', banns`
'given hirtleto p rtMfiY4a 4 because alarmingly ill ; and
• . . .

told bee
t relievipg
log/ car-
ing. Mrs.
and sap-
posing her death to be inevitable, made a :Janitor eon-,
cession to Mrs. Maria Mortimer, by whose husband it
had been administered. In consequence of this confes-
sion, various Circumstances recurred to the mind of Mr.
John Mortimer, in which he had to complain of inde-
cent familiarities observed to have passed between his
wife and Mr. You'll(; and upon Mrs. fflortimer's unex-
pected recovery from her dangerous illness, he deter-
mined, in consequence of her confession, no longer to
live with her. 41ccordingly, he acquainted her soon
after with his determination ; but being unable to ob-
tain any clear and specific ;woofs of the adulterous in-
tercourse in question, except those which resulted from
her own unsolicited declaration, he did not instiode any
criminal proceedings against her. Upon consulting
with her lathier, therefore, how best to provide for Mrs.
Mortimer's future support and condition, they mutually
agreed that she shotold co to her father's house and re-
side whit hint. Mr. John Mortimer agreeing to allow
her a maintenance of MO/. a-year.
Dr. lII:O.NANV, On behalf of the lads, opened the pro-
ceedings. Ile contended that the 3th article alone of
the allegation contained a specific fart, connected with
the criminal charge, and which was pleaded ; it was to
this effect:—" That on a day in the latter end of the
year IslO, the said W. A. 1 ming and Frances 31m-ti-
nter were alone together in an upper Tainu of a certain
house • and that the said Frances lortitner was then
observed to bare her alw rouud the neck of the said
Young, anal to be kissing him." listt there was all
through, an utter absence of any strong or air ...A tact
of adultery ; and only one circumstance mentioned, with
reference even to tio:faudliarities of tise parties. As to
the confession of the lady, he did not conceive it neces-
sary fur hiai to detain the Court upon that subject ; it
was here clearly no evidence; an I although he under-
stood the Learned Counselor the other side meant to ob-
ject to that principle, he should meet them upon a ground
arising out of the 105th comm. It was mini:dent for him
to observe, that if the party proceeded against had any
other proof, the rase might he different ; but in the pre-
sent instance, as far is the Court had yet seas, no fact
of adoltery tatl been pleaded. as between the parties.
The confession, Mrs. Mortimer retracted almost as aeon
as made, mad denied that, in fact, she had ever heeii
minty of the crltuirarrrinduct she was chartist with,
averring that it had been twice attempted, lint that the
intention had been frustrated. The* familiarities, per
se,. were insufficient to ground a snit for divoree; and
the Court would not be asked to stay proceediagis upon
them minus.-. lie submitted. therefore. that this allega-
tion could not he admitted to proof, if it Was intended
to he relied upon as pirmling adultery.
Dr. Lueltixitvosc, sin the same gisie, stsaintaitted, that
this plea ;mold not he winsitted to proof, without the
Court's violating some of the most essential rob, of its
practice. This marsiage took place in Pslbi, :1:1` the
parties cohabited together until Int I. As to the deed
I of separatiuse, no agreement of the sort could possibly
alter the legal estate and character of the patties, or
place then% in a different situation with respect to the
operation of the law. The ground of partitig as Alleged
in that very deed, was, that " some unhappy cliff reaces
had long subsisted between them." lie covenanted not
to molest her, and to allow her to see her children when
and where she pleased, anti she to refrain from all suits,
c. All this amounted to nothing, upon which a plea
of adultery could Ire sustained.
Sir WILLI ‘st Score considered it hail been always
held in that Court, that a deed of separation was Hut to
be admitted as et ialence.
Dr. Lystrtstterfue sen proreeded to show, that though
proof of adeltery was of coarse a just cause for stick in-
stitution, auspic was auto!. anti fur this plain reason
—that the extent and nature of a fart might well be clear
and definite, but no man could define what were the
hounds and limits of mere suspicion. If, as was stated
in the allegation. Mr. Mortimer was unable, even when
the facts were fresh in people's memories, to rolled such
as might found a snit, 'sow could he now hope to es-
tablish his case ? It very seldom happened that awe
case improved by keeping; and be might well apply
th at remark to this. The vagueness of this plea was no
less inadmissible in point ofpractiee, than it was cruel
upon her who should be called 0/ tit Cistlitterriend to
it. llow was it possible that she was to establish her
negative, for instance, where an act was charged to have
been cot 1111 l itted by her, without further specification
than that it was committed upon a day in the latter end
of the year NIP, in a room of a certain house ? Was it
to he expected that she si Id be called upon to defend
herself against ea loose a charge, when the conseqaence
of that defence alight be likely to reduce her to poverty ?
Was she to come into Court matteelesi—lier tongitetied,
lore hands bound, and her feet fettered ? She might
have been geiltv of great levity, and gone merle far-
ther, fur aught .Ire knew to the contrary; but the rules
of law and justice must he strictly observed ; the prin-
ciple of that Court's practice must be intotutahle. The
familiarities themselves amounted to so very little. that
he was tempted to ask what it was meant they should
do? Were they to take these two riders quantities to-
gether, for such was the nature of the farts pleaded, anti
see what they amounted to?
1)r. Jeuxen (for Mr. Mortimer) did think, that the
Court would be of opinion, that the :arts of adultery had
been committed by the wife, during the several years
there specified. And as to the absence of inorm direst
and immediate proof, the Court had aleeadlii declared,
in the case of " Burgess and Burgess," w salus •
a suit for a restitution of conjugal rights, by the wife
against her husband, that a greater latitude was to be
given to the husband, in cases where he was railed upo
to answer for a restitution of conjugal rights, than in
cases where he was the original plemareaut the suit.
'fu the deed of separation there wane awe parties—the I
husband, the wife, and the father. With her tether shot
resided until the month of August, it4l6, when he died.
Now, during that period, no redress was sought for by
her in the Courts of this country ; and the ground npoir
which he now rested his plea was, that the confessioadf,
the lady was made at a time, and under cireunistaseas
of such a nature, as that the Court would nut be likely
US he deceived by giving credence to it. lie was quite,
aware of the cation to which his Learned Friend had re-1
fared, last he shonlal contend that it applied to a differ-
ent suit from this. It was not meant to apply to eases
of separation a mestso et Moro' but to eases of nullity
only. He a with his Learned Friends in thinking,
that; poseibrettere was no intermediate state between
the duties of cohabitation, and the sentence of separi-.
den from that Court. If the canon of 1603 was different
from the old law, which entitled him to a separation and
divorce, what was his condition under the present law ?
It would result from this reasoniug, that because the
I confession of the wife was not sniffeient fitc his pleas
thereto» A. heehaw& was bound to cohabit.
/ratan, was the *mations( the husband ? Heft ~poi.
llossions mesh ender riresasetasees which tesUillslilt
possibly support any thing like a condolatioe, if 114.-•
should be.helieved by the Coon t east yet the-'
was bound to take the wife bock. Sopn•-
- *hat, at tit. end of twelve

ileeett by a senteoce of the Co.
he got poseessiue of b.cts soft
atioltiry sow.plekoloil, awl that
eerkftig his remedy, hie Leer

:It
.se ; sup-

. T. E, ~ 4. AST - ,
N.
.
1- • hew the intjtretd A=TM 1111froTTirapaeffi in tie Vile( otterapsi.s.Tos7 bin' dintstitlties.
have been buttehtity ilieteffbeataMMUng of incapacity hnsband tint she could-not die litippy "anima
in the husband, but us-amoinstance of the husband's emu- her mind, by confessing to bin, that she bad
plainipg ef iecartsity in the wife. ebbing!), the* was ried sin an iulitltered• intercourse with Tout
something Nice Win a salt in 18416, Wilson r. Morris.— *winter, having received the Aricrameet
' Another circumstance worthy of is In the libel, posing hrr death to be isevitable, made a slat
nin the husband was stated to Ipe 43. Now, that • fession to Jlrs. Maria hinetimer, by whose hi
i . .. . .. . . . es • ._e.,_ I_e__. 1.—../ 1..... ..el..;niatabrodi in ran wfitience of th