Consistory Court, Friday,...
The Times, 1824-11-27T00:00:00

-Iflm was a sUit of- separalion arid divorce by reason of adultery, promioted by Mrs. Miontague ngainst her husansd. On the question of' admitting thjis libel, Dr. ARN~OLD, on behaif Of MT. George Conway IViontagnie, the party proceeded againot, took several objectfons to the formi and thie substance of the plea. This marriage wait celebrated, as it was pleaded, so long ago as the year 1803, att Gratna-greenl, in Scotland; andi, In suipport of the averment, a certificate was poposed tobe brought in, signedby one Paislcy,thic indlividual who hadl so cele4rated the mnarriage. Now, in the very inception of this case, the proof upon a matter of erich essential irm- portanceas themiarriageof the pgrticswasgaloge'ther defective. The learned counsel thten cited a great number of authorities rorn thie books, to 3how the defective mature of this dociAinent, and-especially two passages from Philips's Law of Evidence, vol. 1, p. 408, and vol. %, p. 1-In, whichi enpregsly bore, that a book of Fleet mFarriages (as those wero commotilly calledI that were gometimesg had in that prison many,years ago) could anot be receivcd is a court of law ia A iaarriagc-regi.ster. IL wats not provided by public authiority, -nor in any way recognized for a public instrumentL So in Peslke's Evi. dlence, p. 86, it seemed that in a case which had been arguedl some time previously, the sam-e thing wasl raled by Liord Hlardfwicke and LordpChilef Justice Lee. And again, in 4 Buller, p. 2054, in at cause heard before Lord Mansfield, surh registers were determined to bealtogether inadlmissible, Btitt the erlillate now offeredto this Court wasi infinitely infe~rior In point of possible validity, even to the regiters of such a kind as were in question in the cases referred to, For, though they were not compiled by any public authority, yet they hadi about them, at least, the semblance of legitimnate evidence. Thecertificate now broughit in purported to he signed only by Mr. Joseph Paisley, the person who celebrated the mnarriage between thu lady anti this gentleman ; but it was rlearly vaguie, uncertain, atnd ineffective. Who Mlr. Paisley was9, -non ronstat, lie could not give any certigeate that would bo valid in a causie of this description. The libel, after pleading theo subsequent cohabitation of these parties Pt various times a3nd places, charged Air. Mlontague with the corn. mission of adultary; 4rnd it aqt foirth that they eontinuptd to reside in Northampton-square, in the Goswell1-strcet-road, till thie autumn of 1818, when thiey removed, after Tesiding there some timne, to Liver. pool. At.lvserpool Mr. Alontague had stayed a very short time, when he returned to London. and took aniother house in Northamp. ton-square, in whichl it was ~harged lie frequently committed adul- tery with a female servant, by whamo he hiad a child ; haying pre- viously committed a similar ofienee vinsl her sister, by whom, also, he had an illegitimate child. Now the plea was much toovague on both the-se points. Thle date of the adulterous acts 'was left tobefIn- ferred rather from the periodis at wvhich tite two children were born, than from any specifications contained in the libel ; and upon the whiole of this case the learned coutispl stqbntitted chat the libel, in its present shape, oughit to be rejected. Dr. JENtERg, on the samne side, stated, that this was asuit pro. moted by the wife agsLinst the husband, by reason of adultery; and the sieveral articles of thie libel professed to contain the grounds on which hier plea for separation was founded. The marriage took place in 1803, in Scotland ; and having so taken place out of this country, in extendment of our law, It becamelso mouch t'he morenas, cessary that the Coert should be put in possession of the actuial law of Scotland on the subject of marfriage, in order that it might be seen whether the present one had been performed agreeably to it. It was pleaded, that in the country in question, aTarciage might be contracted "1per verba tde presentti," between parties who were above the ge f puilae. uch mariae, i wa sad, wouldl be valid by th cusom o tha coutry.Thisbein preised in the libel, it an essential point, however, more espcalasoefthe dv. duals was, at the time pleaded, only 1.Tepe was-"1 that on the 29.1h of September, 1803, Mir. an r.Mntague did, at (fietna-green, in the prexence of divers respectabewtse,sv- rally and reciprocally acknowledge tliemselves for ubn n ie and were married according to a form commonlyueinadac knowledRed by the law of Scotlandl." iNow this fr uh ohv beeni specifically set out, in order that it miight beasetidwhhr the fact corresponded with the plea. Dr. ADAMS, on thec other side, Suggested, that every bodvknew there was a c-ertaini form ob-erved in m4rriages of this irregular kind. Persaiis it would not benefit hiis learned friend's case very much to plead more in detail, that this lady and gentleman were driven up to a blacksmith's forge, and there received by Mr. Paisley. (A Dr. .TEreirgr.R-.What lisa just been mi'zested only showed what little effect could attach to this certificate. "Perhaps, upon proof, it mniht liereafter turn out that3Mr. Paisley hiimself was but a black. smith.' (A laugh.) Dr. I,1HimaNGcTOm-..Oh dear,no 1-4 beg pardon-he is a tobac.. conist! (A haxunt.) I hanve just ascertained that fact, and hasten to apprise thle Court Of it. Dr. JEN5SEP.-At any rate Mr. Paisley was no clerk, and his cer- tific-ate couldi go for nothing lmore than the mere averment of a witness present at such marriage, No writteis declaration from neitherof thLes parties wouldl be legal evidence of the fact of moarriage. But the main question in this causiewas, whether iMrs. Montague was enti- tled to a sentenice ef separation from her husband by reason of the adultery committed by him, the question of the fact of marriage, important as it was, being merely preliminary to fthis. Now the plea set forth, that in 1818, these parties, who had for some ttime re-. siaed at Northampton-square, near Islinibton, wvent to Liverpool; that, shortly afterwards, AIr. AMontague returned and took anothier hiouse in Northiampton-squiare, at which period Matry Baldwvin came to live in Ihis family as a female servant, anti that with hier he com- m'itted aduliterV, thlat she was delivered in the beginning of' the next. year, in Hloxton workhouise, of a childi, whichl was the fruit of thist illict intercoarse. Another article pleaded, that subsequently, Sarahi Baldwin, the sister of M1ary. came to the house in the charac- ter of a femiale servant; that with her, also, he committedt adultery, and by her had anothier illegitimate child. Now the birthst of these chiildren were no doubt pleaded as confirming the adultery that was charged, hut the mode of pleading Was altogethier loosesud uncertain, and suchi as it was very dlifficult for a partv to know lhow to shape his defence to. In these particulars,tlerefore,jhce learned counlsel submit- teti that the libel Was objectionable, Dr. ADAMS, on beiutlf'of illrs. Mlontague, said-he had just been favoaretl with a sighlt of Lord Stair's institutes ofth/e Laws of Sentland; from whichl it appeared that the age of pupilage was in the males, 14 ; In the fensales, 12. UJpon this point, therefore, and that \which reyarded the setting nut the mnarriage law of Scotland, and the marriage form more specifically, there woulti now be no ob.. jtection to mfeet thei wishes of learnied gentlemen on the othersidde. Dr. LrrSHIrGo'ro observed, that it was well known that there were two sorts of miarriages in Scotland. one of them reguilar, the othier irregutlar; but both were valid. Dr. ADAMSt then remarked that as to the objection about a defect of specification, as toth auterous intimiiacies chargedi against Mlr. MInRtague, *hat was it that hiis learnedl friendsi would require? Wouldi they, have a history, of the courtships ? When a gentleman) descended to faminiiarites of this kinid withi his servant, it was niet to be supposed that the approachezs were all as scieittific anti as regut- lar as they might possibly be in the case of a womuan of ranik; but as to the fact of adulterous intercourse the birth of a chiild, an whose account a certain suim was paid by tile ruputed father to the church. wardens of ithe parish, really appeared a pretty substantive proof' of the truith of' such a charge. Dr. hLusniN-GToK, who was witli Dr. Adamns, argegrc upon the ob- jections taken torthe I1th article,on thegroulndof a wautof6peciflesttion, that there was at great distinction to be taken between a case in which a party wvas charged with one single ~ct of adultery, and one where a continuedl lhabit of adultery was charged. AS to a miore particular statemnent of the timues at which. Mr. Mlontague c;mmiitted aduiltery with M1ary Baldwin, andl afterwards with Sarah Baldwin, of whatnimaigii,able tuse to the case of his learnied friends could that iforniation be? kt certainly seemed to be the more improper atode of' carrying oti anintercourse of this kind, to be conversing illegally wvithi two women at the same rinse ; but where they were sisters, lie supposed it was of less consequence. (A laughi.) Sir CHRISTaOPHER RouiNssozz said that thie greater and the weightier part ot' lie objections that hind been taken, wvas now dig.. posed of by agreement between the parties. Undoubtedly this Court had frequiently objected to documenitary evidence of the kind now put in ; and had even reftused to receive the registers of' birthsa and baptiss kept at the m6eting.hsouses of Dissenters, as valid evi- dence. But, as Dr. Adams had suggested? the certificale. if retain. ed, wouild not be retained as of any authority qula a certificate. Dr. ADAMSt couldi not imagine any one whiose certificate, proprio vigore, would less avail than AI r. Paialey's. But the Coyrrr would see by tite language of the imlea. that it wits brought in us a paper of which Aitr. George-ConwaybMontague had possessed himself, and which he hail himself repeatedly exhibited to his friends, as evidence of his maerriage with Mlrs. MVontague, The , C6u then directed thedeates selative to M1ary BAldwin's term of service to be stupplied ; and tile 1lth and-12th orticles.of thq libel to be more specifically pleaded than they at preseint were. s3rrTH V. 971ITH. Alr. WV. Carmichael Smlith, o:i thiis cauise beffig called, shortly addressed the Gourt, l lie ad hoped that Dr. Lashishuton and Dr. Phillitniore, as enii ef hionour and integnrtv w Ihf lhave seen from teaegata that he had brought, in, and the exhi, bitt anee to it, that it was medica rather than legal ad. vice of hih hs Wife stDoo in need. lie had hoped that he should be: spared the pain andl mortific-ation and expense of' again attending that bar, and lhaving his domnestic nsisfor- tunes brought once niore before the public. He had now to pray that his allegation mighit be admitted andi he particularly called the Court's atteiitrion to the prayer contained in its 14th article (whiich was, that the Court would direct Alesi. Smith to be mxamined by iskilfuil medical mesn; anti if their report should be favourabIe to her sanityt the party proponetit engaged to take her homte, and treat her with, tthe utmost kindneSs. The CouavT saidi ha readl the allegatilia, but if Mir. Smith wished it, it slhould b- read again oublicly. Mir. Smith declined the offer: lint afterwards prayed that it mhght'. be Tead, which was done by the Regisitiar. It is only necesary to say, that it was rather informal and ramibling, and accused his %0lfe' o3f fcequent accesses of insanity, kestified by outrageous elPaduct, and. by Idecnt xpresios utere inhispresence, anti by certain let.- toreannxed(whch ettrs id ot eemto convey a similar ioipre&. Dr. sssarscog, o behlf 0' Mci. OmicaelSimith, siaid he. shold urpsey rfran fomgoig iitoth paticlas ofta lady'a uno auttery against her husband. -As the" court had read it' ft would be the most advisable eourse not now to repeat it. The afe. gation, however, which Air., Smith bad, brought in In answer,was to. tally irrelevant to the matter of the libel, and by consequence, totsly inadmissible. All the reply it attempted was, that hio wite was de- ranged'Isi maiid but anpTposigjibat to b tmue (Obhich, iolwever,-the aeftmedc ou sel.utten,el , sif besnight judgefromtlhe lallguage or the exhibits), er derangCmWt couldbenodeketfnce of his actsof J.et adauley acs o c~nltyandaduter. AB to his bavuing ninwarrasatabjly confined ber in a private mad hoUseb, from waich sihe'was brought up befere the Judges by /laeas corpus, aind fibally discharged un4er ani order from Mr. Justice Parh and,lifr. Justice Richardsoni, after Personal con- ference wits he?i, -and.learing the wtestnony of several Wltfoesme, all Mr. Smith' sanswer amounted to thi.-that he had a-bad fall from his horse, which produecd a concussion of the brain. Dr. LusHrMGTO2r, oil the same side, was at a loss to conceive how an accident of this nature could be pLeaded as a good defence ta a char e of cruelty. and adutlttry; 2and stijU more, lhow Alir. Smith l~l~sp o seccewed ini the othier part of his plea-..that in conse- ilsenceofthe corinued .illsiess that ensued upon that rccident, he continuied to keep MVrs. Smiith so confiiied. Thie prayer of the. 14th article wvas altogether unconnected with the cause * and the learned counsel Vatled on the Court to reject Ailr. Smith's allegation. In tde rcourse of hise sipeech, the learned counsel was repeatedly in. terrupte.3143yMr. Smith; who, as on a. former day, had no legal nd. visers. The learned counsel replied to his queriez and objections with great good huniour, and assured the Court he was perfectly wiling to answer the.gentleman at the lar as tho cause proceededI if that mode were more conveisient to bim than to wait fir the period of replying. It was, however, rather difficult to meet the objections oTa party without experience in -the practice of thiis Court, and, for his own part, he woutd prefer having to engage two of his learned friends on the othler side. (A laugh.) Sir CHrtUSTOpHERE ROuINSoX rejected the allegation, and as. signed the principal cause for sentence. lrs. Smith's Proetor brought in an allegation of faculties, to which Afr: Smith made no objection h but he prayed to be heard on petition, uggiius all cosp, on the next court day, which the Court consented to, after some desultory conversation. SIALL ANID sAL. Thiis is also a suit for separation and divorce, promoted by the wife against her hauband, on eocoent of crueltv and adultery but wl.en the Court rose, th9 reading of the evidence was not quite concluded. CONSISTORY COURT. FPnTIAYV V 'flP MONTAGUE V. ISONTAOUE.-GRETNA-GREXW MfAIPaAar..