The enquirer. [volume] (Richmond, Va.) 1804-1815, 1809-10-10

s'ateu, tnat III IsVo ana loU4, person, oy tue
name Of Mrs. Purcell, was at Norfolk, and lived
Will, Jeremiah Andrews, while his wife was in
England and that people spoke freely of Mrs
Purcell, on that account and that as soon as
Mrs. Andrews returned, Mrs. Purcell was dis
charged.
4. The cross examination Of col Gamble which
had no bearing OF the question.
And thereupon the plaintiff renew wed her mott
on for alinony pendente lite. To which the coun
sci for the defendant objected:
!. Upon the ground OF jurisdiction and,
2 For the want of sufficient proof OF the n:ar.
riase. e
by the chaneeiisr-
If the Jurisdiction Of this court were
now to be settled upon English preced-nts, there
might be some doubt, about the question, from
the cases, AZ brought into one view, by Mr.. Fon
blsnque but 1 shall leave this clashing of En-
gsh Judges, to be rcconciled among themselves,
and take up the question upon first principles.
hold, that in every well.regulated govern
ment. there must somewhere exist power of
atfordiDg remedy where the law affords none;
and this peculiarly belongs to a court OF equity
and as husband and wife are considered, as one
person in law. it is evident, that in this case, the
law can afford no remedy; which is universally
admitted to be sufficient ground to give this
court jurisdiction /; and therefore it must enter.
tain the bill, if there be sufficient proof of the
marriage.
The standing rule in equity, is, that sn ans wer
is not evidence in favor of the defendant, unless
1t be responsive to the bill and, therefore what
ever the answer asserts a1sr,nativeiy, in opposi.
ton to the plaintiff s demand, must be proved by
lnaifferent testimony-appy this rule then, to the
case before me, and the result will be, that the
plaintiff must prove her marriage with the defen
dant, since he has denied 1t by his answer, and
ne must prove the ottser matters set out in his
answer, as not being responsive to the bill that
Is to say; he must prove LIST, the circumstances
which he states with respect to the relinuuish-
ment of her dover Cd, that he then denied the
marriage: 3rd, that Ann Church was the nat,l-
raj daughter of the plaintiff (if he, or his coun
sci, supposes that TO make out these points would
be OF service } 4t:, that she refused to live with
him in 1898, in the rented house and 5th, that
her manner of living, while she Wac from hin,
was uslike an upright woman or, Il it is inten-
eied to charge her with living in adultery, it must
be proved by him.
Thus having stated what dsyolves on each par
ty to prove, will next examine the proof of the
marriage, since ii seems to he admitted on ALI
hands, that IT they were married, he must allow
to her afi'nony and confess, upon this point. I
DO not perceive any ground which to rest a
douot evidence OF like description, coming
from INN under like circumstances of the most
atrocous crime, that he could commit, would be
sufficient to take his life and yet, we are told,
1t is not sufficient to fix one of the most honora
bic acts in society upon him namely, that he
was married! lest it should draw from him an
bupport MS wire ! ana II was contend
cd with great zeal and confidence, that there must
be proofo of an actual marriage, and that the de-
iendants confession of the fact, though attended
with all the present circumstances, was not suf
hcient ; and IN support of this. one solitary case
was produced OF Miller Us. Morris, d Bur. 2O57.
winch was an action for criminal conversation,
with the plaintiffs wife, which certainly bears no
snaio gy to this case, and, if it proves any thing.
proves that evidence like that which is now be-
lore the court, may be admitted in all cases but
IN prosecutions for bisamy, and for Grim con for
TINS plain reason, that crime shall not be fixed
upon one, but by the highest evidence; but the
viNuons act of nlatyi,,aonv may, in this case. as
IN many Others, be proved by esha5itati0u. na,ar
reputation, and other crcun1stances. The marriage
then beng liked beyond any doubt, in nv mind.
1t remains onlyto be enquired into, whether at
TINS stage OF the cause, the defendant has fixed
SO much blame on his wife, as that she should not
nave aEnnony fenlenfe lire. The rule as before
lard down as with respect to the answer being
evidence, must not be overlooked and the de-
PENDANT must prove his affirmative matter contai.
hed tnereln But not one title of his proof SUP.
ports the circumstances under which he states
the dover 10 have been relinquished, or that he
linen denied the marriage, or that Ann Church
was the natural daughter of his wife, or that she
refused to live with him in 1898, or that she con.
Quoted herself improperly abroad {: and the
whole OF the correspondence before stated proves
that these things, so far as they were noticed in
IT. were mott true : and this brings me to his eyi.
dcnce.
l. James Miler's affidavit states, that she said
they were married in Philadelphia but what
does this prove 1t may be Misrepresentation
on his part; and am inclined to think it was.
+ T. AS to the proof by John Sedwich, it is clear
upon the face OF his affidavits, that he was hold
ING an unauthorized conversation with her. if in
deedhe held at all, and that she was not bound
to satisfy him about it but if she did, is it not
very likely, from the contiguity of Philadelphia.
the Delaware, and the Jerseys, that names were
mistaken or misapplied, and ifso, then the evil
dence produced against her, coisipg from her.
SELF should not be sarbled and taken altore-
ther' would h1 the marriage. And,
. lfany one shall be disposed to indulge his |
suspicious, because of the evidence of Robert
Cowan, would recommend it to such person, to |
read the letters OF the defendant, addressed to the
plaintiff while she was in Norfolk at the house of
Mr.. Andrews; upon the whole do not discern
any cause OF complaint against the conduct of
Mrs Purcell, and she must be allowed aIi,noryJ
bendente lite.
Whereupon the court then made an order TO |
this effect that the defendant should nav to the
next friend of the plaintiff for her maintenance
quarterly the sum OF SIS pending this suit. to |
commence from the 1st January 1908. until the |
ih ther order of the court uness the defen. |
dalt should shew cause to the contrary before |
the ludge I'D vacation on the Goth of March ne ~ |
The defendant then flied cross bill against
tne plaintiff by tile name of Ann Hazleton and |
aiiedsed therein that he never was married I'm |
hef and called on her TO say, oath, if they ever
were marrledl and 1T they were, where did il |
take place what was her name who perform.
ed the ceremony who were present when tle |