Court Of King's Bench, We...
The Times, 1824-01-28T00:00:00

the del nas an action of debt on a covenant in a deed, whereby tdttse4enfort ape o p ananuito 80L. a.-year to me idtinii trutce fOr, hs 'Fife. Pthe fnsn5tramtitrmtof8tited that ifr6iix henatl Wdtapp`ly .alisn between 31r. and Almrs. Thurlow,'a that they had t2geed to live separate; and then set forth tihecovenant by the de- Tendant to pay the annuity to the plaintif a clergyman, for AMrs. hurlowdr tose, absolutely during her bYfie. t aleo contained a sti- atfon by him, tbat he would n&twuire her to live with bim again ; Ot ito agreement by her that she would not sue for the restitttion f cotijognal rights. Thedeeti;io; alleged that a quarcer's portion annuity was mo arrear, .nti which the defendant had refused to ray. To this there wits a plea setting forth the whole deed, 3nd as'eri ng that Irs. Thurlow did sue her husband in the Rcelesiasti. ourffora restitution of conjugal rights; that he defended thesuit , gprounnd onf aduoltery; andd that the Court found his plea [goo,ndpnone sentence of docea ntens& el toro against his vilfe. Tothis plea there was a general demurrer, which now caime onfo e_xgument. *Mr. 'C"IITY, fdr the plaintiff, said there were two questions in th cate.d4hat, wThether the plea was any answer to the action; and cnd, .vhether the deed itself was void in law. On the first peiht Idoutgh:tt tnecesary to say very litte; for as it had E:en e'xpress- li,t adulte was no answer to a bill for spific performn- ~ceomar~ga atices, as it wrought atit for%feitre of joi-ture t~heich5s anlgou sF to the provision made by tuhe deed, it could bely be contended L thnat tne tmere stSteCie ohi a SpiritualColut, zig ~t uchadutery had occusrvd, was any defence to an ac- sat Ina on suiec a deed as that bserfore the Court. But the Main rlae of ae aend would, no dloubt be -placed Bx6vthe broad gro tt the l dd itself was void, as contraeo ]tothe folicy oftheaw its contemiplated the permaneisey of e brnt dormedgy th een cases, it which'g e dst eseIal in coum ofeut~hdepessed a wish that efc a pot beesn giten to feara bt it , those very cases the nu bid given o the not feeling thusemselves atethorizb a toe dnstae lonf taindo no et lj,ns. Such was them case in the instace ofs Lord tuhdiadySt. John,"ae vl *Vesey', jun., 1i w; in "Wa-ner v. jnt cob,n leriv 1 anddi in "erMd Rodney, v: t laster wae 2wIn th i which was parallel to ir p!esent, L lienbonrouglid If it wesen iie o * get s r tha ct roudtya be made which tende, d hou n t o obter v in o f e itwere n o ao new f lTieT~ISe, fof the de usenantid, tand wie,did shotl have ghourb.' at It wou th ve falen in he gene polic Ofhelaw to hve prohibitl any su ttey w 81OWn ineeter)e in the law, an we caniiot rec the pe sent on at gtound h withoutt sayg that all contracts. whh hr entsante tendency are vicious; which w.nild extend. for auegw t I can ase, to. wife ofh,.b r t maite " ,,?' oilther Separate provision foe'the tetionlofathe husoannl." asuchwaesthms t r eultoftallycauehorit:es; maad though thec.ne of, "Durand v' Tidley," decided on wrrit of e er, might seem otherwise, its prinsiples were not inconsistent witb those susained by f (ormerjudges In that case, the contrnact was to give the wife, at her own pleasure the power of leaving her husband, tk LOi her one of the children; thus, as h?ad been observ- led, saking the husband a nere tenant at will of his marital righits. (A 'aun gh.e The Jud.es held thatcontract voitl ; but this was of a verY dfferent descrnption, and did not even encourage tieparation,a.t the annoitywveas grante without conditions. There was little fear th3at arrsangements like these would tend to lessen the security of' Marrhge by o that h eeinh wbu ich jB not partiesrto enter itwould erusllj bind them together, in spite oftlitle differences, for life. biL. PATT1SSON for the defendant, said, that hewdid not abmadon ~Is arguisect on tnie plea, which he thtought sufficient for this r=asonr.tb was clear that a reconcaiation would hiave avoided the cleed ; that reconciliation the wife herself -ought for and must haeobtained had shne not been harred by her own adultery ; was lsbe then to take advantage of her own wrong to sustain a deed in her favour? On the question of the valiaity of the deed, he admit- ted that effct hiad been oftenjgiven to siuitular instruments within the last century ; but Ile denied that ose cases were conclusive, be- causethepOint lhad never been disti2nctly raised; and he thought the case of" Duranid v.Tidley" proved that the Court was at length did- psed to act ol tose gave suggestions and weighty scruples whichte ICat been, thrown out by those whiose doutbts -were more valuable than thte certainties of ordiinary minds. In one ease, the then LordI Chanceror intimated his wish that no such deed had ever been al- lowed but hae said, aCar we now venture to overturn the law as laid dwn by those who have gone before us th The Lout CoiEF hi UStzcTICfL.And can we ? Is not that a t- =n flu us? Lite our predecessors, we maay say, that if this were ere i,rtera, we should perhaps decide otherwise; but would it not be an excess of jurndictuon in this CoLt-t t o overthrovt a system ofju- Jisprudence long acted on, upon our own notiotsof heolicy P If the pourse of usage is to be broken, it nmust be by the WLeslature, or at lieast by that high tribuinal which is not controlletd by the decision -of other Courts, nor rposible for their errors. dlr. PATe'TISSO sraiZdhe would only utige one argument more. It 'vasl clear that deels for a fuiture separation were void; if lie could show that deeds mor present separation were equally objectionable, would not his reasninigtbe concluive? Tho LonD CHiEF' JUSTICE Sailil, that for thie reasons he had ailready given, he thiought the deed good : it was not for a futuire reparztion, but rectited that differenice.s existed, and that thhe prvti hadagreed to separate. The case of" Dumand v.Tidley" wa d -on p;rinciples not at all P'ecfting th-e geneal rule under which the present deed was held good. WVith greespect to the plea, he was celarly of opinion that it was Insufficient : for it did not even aver ch-at, adultefry haada beeenncoommnitted, an d if i tbha d imad e that avet - ment, it still would have been no answer to the claimi. Had the hushasuid choseni, he miightbhave made the annuity dependent on thie chasite behaviour of his wife- he had not done so ; and therefore her infidelity would not excuse him from paying it. Air. Ju,;tice BA,'YLEVt concurred;, and observed, that there were cases in which it might be very desirable to induce a mother to leave the house, and accept a patemienc, to prevent her exam. pIefrot Ijurng erchidre; eid nhapycutcumnstuces might ante uner hic itwoud h beterforal~parties that a separation Me. ustce Huityn ad M. Jstice BEST coneurrtd ; and WIILLANS V. TAYLORS. Ths action, which, it wil be remnembered, was tried a few days -ago in Illiddltisex, was brought under the statuite of' Anne, to rec-over fouir timnes the value of money lost in the llaming..house kept by the defendant, at roelge et -note, by a young man named W'ilalie Willans, to the amount of 0671, TIhe brother of the alleged loser was the plaintiff, and he was himrself the principal witness, and swore that he lost the money at various times in the house, where he saw Mr. Taylor nihtyresuidg ndrgual entered on a paper (which hie pro- ducel) te sms wichhe lst.The defence was,, that this witotess nevr hd te mneytoloe and that, though be had been in the house anshough r. Talrbdbe neeted'in ii, he lhad not bee t'er attheties hepretene, bo Adir. Taylor, during thos monhs, eenprenti th romwhr e was swumn to have acte si rooter Toprove this case, th poie was called, who pro. duce boks,sai tobe madie up nightl from slips of papera cost. rainik thenamesof the visiters ; th deaer,wh wore that lIlasnever played bitt for small sumns,adtt Mr. Tay. in wa not.present during the timne spokna ob him ; and thtinparticuilar, oni one nigbt. the iltb ofApi,he the wfitness (beredtat he sustained his grmtest loss, ben io.F I ka,o ply'as rraritted; and seversj persons, whd dpsdta,bn the ia,W;I lana rwa in great pecuniary distress.Thjuyafe couldriewuetiash uldamages;t hicLhheurpiged,that i'theybedietwad Wpilnst the 'weihtolewaprvi ed;ebut theyus mihatfind appeTarc of te -ahepahefit;onvwhichthbeylritetrned tveric;acthfor 6 h1., erying d-l "'ghy atnew trialifshdntbed thadt they udgd, nthpatcte imrdicit welas ~nthe~ solitaxy witness by which the case was supported. Thi nOLDottn ntxpJUSvTICE said, that the appearance of the r-e,the hooks af the defendatnt, and-thet demeanour pad testimo. -,of the witnesses on both si 'es, were all before the juiry, and idhe '...4urt could not may they had formIed an erroneous judgmient. H-ad they found a verdict for the whole sum, he was. not prepared to) say they wiould lhave done wronig.; and he c'ould not think a defendant had a right to a new trial, because they fouTid for less than they migh3t have compelled h?ss to pay. Te other Judgesgconcturred, atiad Mr. JUStiCe BAY LEY observed, that it did not seem to him thait the paper was aliwriten at the sanne time, though probably with the same kind of pen anid inl.-Thie sale was therefore re fused. SKIVNlER V, TtrCKER. Thswas an action to recover the penalty of 1OPL against the de- fendant, undier the dd Oco. Ill. c. 1337, a. 0, which enacts that no churchw'arden, over3eer, or other person having the managemnent of the poor; shall int his own name ,hor in the name of any othet person, provide, furnish, or supply, foor hio own profit, an~y goods for th e use ofany-worrkbouse, or Ir the suppo-t of the poorinbis parigb,during hishg ayor nupment,nr thabe cncerned slirectly or indirectly In fur- nishing ~ ~ mrspli-tesne, or.ui any, contract relating thereto, ewider pain o1forafeiting 1001. At the tria before the liorfl Chief Jnsticg in riliddlesex, It was clearly proved thl cheefndsj being overseer of a parish near Holborm, did interfere in obtaining tbr a' relxio a ontactfo cols,andassste 1m to Perform it. The! epgeston iediva, hathe as imslfreally the contractor; but he wtnes, wh 'tis ofnecesitycalld, wor ostiv e thina to sy wethr h hador ot;andthey fobund a vet.. Mllr. UEuaEu now moved for a rule to show cause why there rboud'nt b a nw tial on he roud that this direetton was offending should havit was not necessary sijat ilse party - Ai cpnkry interest in the 'COURT OF EING'S BENCH. WF,TrZ,TW.1..w J - 97- In'. '~~GME V. r1Tj1uA.nw.