Court Of Chancery, Wednes...
LAW REPORT. This being the first day of Easter Term the earlypa tof the morning was occupied in opening the term vnth the customary form. B3EER V. WARD. The LORD CHANCELLOR said that he would proceed with as much of his judment as he could until halt-past two o'clock, when he should be under the necessity of rising to give up the hall to the students. The question which arose in this case was, whether a per- son of the name of WUlliam Cotton was the legitimate or the ille. gitimate son of Willain Cotton the elder, and Elizabeth his wife. This WiUiam Cotton the younger having become a lunatic, his fa- ther took out a commission of lunacy against him; and in 1819 the lunatic died. His brotber, Roswland Cotton, upon representa- dions made to the Court, waY made committee of his estate; and if the Court was deceived by those representations, it would prevent the party from availing himself of thenosses- sion thus improperly acquired. Rowland Cotton, if VW-illiam should be proved to be illegitimate, claimed the estate as eldest legitimate son of WiUiam the elder. He (the Lord.Chancellor) had not bad time to look at the record with that degree of accuracy and attention of which he had, in some cases, been charged to be guilty. The first issue sent to the jury was, whether William Cotton, the lunatic, was legitimate or illegitimate. The case contended for on behalf of the pTaintifib was, that William Cotton ought to be taken to be legitimate, for that even although no actual marriage could be shown, yet, from the evidence, a marriage should be presumed to have taken place before his birth in the year l739; whilst the defendants contended that the marriage tu k place in 17-42. The jury wvere of opinion that William Cottos the elder had been mamed in 1742 to gebecca his wife, and that that marriage had been made out to their satisfaction. Under these circumstances a secret marriage in 1742 being proved, it was difficult to pursuade he jury that an antecedentnmarriage had also taken p lace. WVhen amotion was first made for a new trial, he (the Chancellor) was not satisfied that the case had been thoroughly tried, or that it had been put to the jury in the way in which it ought. He thought that it ought to have been put in the way in which it was upon the second trial- namely, whether they might justly infer fron; the evidence that the marriage in 1742 was a second marriage. That was the way in which it was put on the second trial ; and a new trial was now moved for on the grounds-first, that there was verdict against verdict, although not exactly under the same circum- stances; secondly, that the Chief Justice had failed to make certain important observations, which ought to have been made to the jury; and thirdly, that he had mistaken the law in the observations which he had made. Here his Lordship read and com- mented upen that part of the Chief Justice's charge which related to the Jaw of marriage in this country, before the passing of lIord Hardwickes Act. In stating that our law was the same as the law of Scotland, he was inaccurate; for it was never so loose as the law of Scotland; but that was unimportant. That a marriage might have been celebrated without the pre.ence of a clergyman, with some qualification, it was difficult to deny-that was, where the person performing the ceremony was supposed really to be a clelgyman. The case was different wliere a fraud was intensled by one of the par- ties. The Chief Justice's charge went on to say, that " a cor.tract between the parties, followed by cohabitation, and accompanied by a declaration in the presence of witnesses, constituted a ge Xd and legal marriage at that p-ried of our history, as it would in Scotland atthisday." There wasno doubt thahat at would const tutea good r ar- rniage atrpreset in Scotland, as was established iracasetheotherday inthe House ofnIrds wheresit appeared thatthenhusband snid, t i the presence of witnesses, "tadam, I acknorledge you to be my wife;" and t le replied, " Sir, I acknowledge you to be my hus- band." ln a fewmoments afterwards the husband went intoanother t:em and blew his brains out. That w ts held tO bcavalid irrregular mbyrn?g e by the Jlaw of Scotland: he said irregar, because there was a cthourence between a -ofid marriage and a regbahr marriage. It was contended in the p(reseat cae, that the attention of the jury ought to have been called to this question_" Are you sure, accord- ing te thevidence, that such a contract had been so made between these parties?" And it w oas said that the principles laid down by the (:hief Justice were bad law. Cases were cited, to show that though a contract of marriage de pa-ceenti before the year 1756 was a goed contract (to use the Solleitor-G;eneral's words) qmwad hoc, yet it was not a legal and valid marriage of itself; that was, that the issue of *uch marriage, if the parties were not after- wards compelled to celebrate it in fade ccctsiar, were illegitimate. Now he (the Chancellor) was not considering the question yet; but it seemedt to him that another point arose, it that prop Sition were made ont_namely, whether a second marriage, if celebrated volun- tarily, would nothavethe same e.fect in curingthe other, as if its ce- lebration had been made compulsory by the ecclesiastical courts, No case had been cided upon that point, which would show that not the antenati, but the postnati of the marriage of 1742 were legitimate. That appeared to he a moat im- portant point. Such were the questions of law: now for the matters of fact. So early as the year 1700, a settleimient was made by old Rowland, on his marriage with Alary, his wife, by which he became tenant for life, &c. Here his Lordship went over the various instruments which had been executed from time to time down to 1751, with their different clauses and effects; and pointed out their different hearings as evidence upon the question at issue. When his Lordship arrived at the deed of 1751, he said lie would procced w ith it on Friday, as it was then half-past two o'clock, and no doubt the legitimate members of Lincoln's-inn considered them. selves entitled to their dinner. A Gentlem.an at the bar asked his Lordship if he would go on with themotions on Friday? The LORD CHANCELLOIL-_I will hear motions afterwards; but I shall die of this case, if I am not allowed to get rid of it. COURT OF CHANCF,RY. Wrn%iv.vn, 7lf '-,.