Arches' Court, Monday, No...
Thii was an appeal from the Cosiastorv Coartof Lo.rdon, whcrOni. some time since, the wife (against whom - sait for sepratfon and divorce had been promoted by her husband, by reason of her adul- tery3) was dismissed from all farther observance of the suit. Dr. JE N5Es ir. the first place recapitulated the princpal paints of the evidence as offered in the Court below (and of which we gave at the time a detailed statement), The learned consel then added, that the deed of separation, in virtue of whicih these parties we-; living scparate at the timne of the aLUeged adultery committed by hF ; BzAker. had becn 61sed for by the Judge of the Consstory t ,- who, after mtaturely considering the same, held the husband to be not entitled to the remedy be prayed fer. But, on the nat of that gentleman, letters addreused to him by his wife sabsequentl to the date ofthedeed,and other testimony,werenow adduced, wbich'would, it was trusted, stufidiently explain any thing in that docuaent, which priine facie, and in the absence of these adtitionsl proofs, might have conveyed to the learned Judge of the Cestt beo am unfavourable impression of Dir. Barker's case. It was now suhmittes tha the former sentence ought to be reversed, and the husband de- careld to be entitled to the remedy he prayed. Sir JoIIN NICHOLL. stated, that in the Court below a libel had been given in, and witnesses had been ci;aunined on it, to prove the charge of adultery brought agaisst this lady. And afterwards, a furthter allegation, or ratder an additional article to the libel, had been adrmitEed, pleading the fact that an action at common law had been brought against 3ir. Potts, the party with whom such adulterv was charged to have been comnmitted -a nda verdict *bteinedRgainit hun of 2001. damages. This was the condition in wbich the case had comne before the learned Judge of the Consisory Court, who di- rected the aiticles of separation which were frequently referred to in the libel to be brought into court; which, having deliberately con- sidered, h1e pronoanced the husbsnd not entitled to the remedy he sooglifor, and therefore dismnissed the wife fronm all furter obser- v.tnce of the suht. From that sentence an appeal waasaserted, which had been brought in theusual form tothis Court,. wherein =nelrdi_ tionalallegation wns also offiered, pleading.ceriainfctters ssritten by the )Yife to her husband-the specific groundds upon whicn the sepa. ration between them mok place-and another letter addressed by the inother of the lady to this gentleman concerning the elopementof her daughter from her house. This case therefore czenion Row under different circumstances from thosein which it must hive appeared to the Court below. Besides the former evidence, here was at pre- sentgiven in inutch extra proof ; and possibly, bad that extra pof been offered at the time, it mightbave relieredthe difficLltier of tbe. Judge in the Court below. The libel pleaded the zgainse of. thew piatieB iri 1815; the lady bing at the time a minor. Tiey robabited' toget!ier until AMarch, 1820, when, in consequence of cerfain disagreemcnts between thlem, a deed of separatfon was executed. After the separation, Airs. Barker continued to reside At Eath till June or July of the same ye,r, when she emnoved to the house Of a respectable family in Isomie part of Dqvooshire, and afterwardi' from' thence to he~r nriothir's-.... Mrs I3urdien5vho live(l at or in the lImiedliate vicinity of Teigo- MouItb. In tilelatter endt of Decemiber, 1820, she visited her hus. band, as it was pleaded, at Clifton, from whence they adjournied to Bath, where, notwithstand ing thle dteed of separaition, they cohabit- ed togethez for thtee Or four day Indiights, wh2n each of them re- turned, the one to hi os tbt,the other to her inotlier at Teignmoutb. pr,stattm,fmth sfan r,13,tee parties never agi cohaited A'eniofthbJaeurl 1 becae8ac ofquainey wiith r ota wo a lieutenant in the 1st regiment with him from her mother's protecto hywr trae. tlo te( Ying's Aenas Inn at Hamptoncourt hreteywr discovered to have beeni living together so a statofauer,adasiga husbad ntw ife. lr. Barker, wao wa tti ieat Clifton, 'receive it letter fron Airs. Barker, announcing to hiim what had hapne:heimedlately came to tonidon, took all necessary mnea- flures a l his friends) and succeeded[ i firding hig wil an Ar placedhe unu,er the care of her uncle, Ini Lontdon. At hi.S house she had resided but a very short timie, When slhe contrivedl to elope once mnore withl AMr. Potts to France, whie-re they still contiliued to' reside and cohabit tosether. Of this latter faet, liowever, no proOt' was adduced in the caise ; but of the firs:t adultery there was ample evidence; nordelid it seem that thie Judge of the Court below had ~bictd t is sflciency'. The ground of that learnel person's ob- Jeculon to the husband's prayer seemed to be somethiing arising Out Of facts occurring since the separation of these partics, anid n&t sufficiently accounted for in the proceedings before hilm. Nowv, un- dottbtedl?.*tle8e courli did not countenance consentient seipsararion oni any othergrounds but those which the law strictly recognized- Panamel, the cruelty or adultery of one of the two parties' b ut the nicre previolt separation wat hot, of itself, aniy bar to a subsequent sutit bY reason .of adualtery against either husbandl or wife. It wasi rio lic~Mce, for examnple, to- the wife to commit aduiltery, an)d per. haps to if)pcgeea spurious issuie oni her husband. Still, where a cdecd of' this kind hadl been entered into, the complainant muist clearly make Our his grievance or injuiry. Thermaxim of these courts was, thto cofe u "Dix fli injuria ;" and if a husband, therefore, chose toclf o'uIn his wife a permission to commit adultery, lie couild hot come tere andl complain of any- injury offiered to 'his miarital rights. Upont e prset plea, it w.ould be difficult to saY thlat a licece f sch naureWas thie exact construction to be put on thlis deed thugh t mst he allowed to contain some prettY strong words. Thatdeedset ut ith reciting, that it had bean agreed betwveen the paries"tht fr ivers causes and considerations proposed. by the wifeso te huban, they should for the future live separate anti ailrt romeac oter, to wihich steparation, he, the said SamuLel Barkr, he usbnd1 &c., had since conseoittil." From these cx- reso,it r.3igh at firat sight be supposed' that the hisiband had veyualsly tr eated his wife, and truns caused the separation tin qeio.Afterwards, there followedl a clause couched i-n strong terms Uzioubediy, and stipulating that thierr-after the ivife should lteWith.nny`pds;Orlr ptersbrs whlomsoever and wher&soever, without he,nelf or such person or persons for hsarbouring her becoming liable.to any suit to be brought against her or 'any of them by th~~ Samuel Brker. This Court, howAever, apprehended that rlue re'~jac cotempate bythispar ofthe deed was only to prevent thi,u,..e ad thhusand rombriningany suit of restituition of con- 3usgi rght, te oe aaint te oher byreason of their separation. Stil thre etsenogh o th fae o al tis to raise some inquixry; rin dobtlss t ws afelirng of this kind whiich had influenced the judmen gien n he court below. The question now became, whetherthe ad Itol evidence at present brought in was satisfac- toyt hw tatthee . nothing whiichi ought to deprive the huts. band of his legal remedy for the greatest injurythiat lie could in that characeter austain....anmelZy the elopemient anti adultery of his wife? Thie evidence of Mr. Bark,er's brother proved, that the deed of sepa- ,ation was executed at the solicitation of the wife-not on accotint of .any maisconduct on the part of the husband. The matter aTo-se Ouit of thaeir not being able to aigree upon a trusteeship as to certalis property. On Mrs. Basker's' coming of age, for she was a mainor at hler mnarriage, she became entitled to a life-interest in a large estate in Lincolnshire. There were great differences of opinion be- tween the husband and the wife, and between her and her tamnily, about the nomination of trustees for this property. Acting on her own suggestion, or that of otheis, she wrould not consent that he shouild niominate one out of the three trustees to be naimedl. Coun- sel's opinion had been taken as to her power, under the will of her fisher, to niominate new trusteus, anti that opinion being favourable to her, she insisteed upon naming all thiree of them ; andi after am the disputes on this account, she even went so far as t4require that her huisband should consent to a separation. Several of her letters to him had been exhibie inth oause ;Qati.tey went far to show tat shie was of a vioet eccti,anid rromantic chiaracter.Lok ing.t l h icmtneo h case, there appeared tohbe no blame Impuitable to thte husban frte conduct she observed. on this occa- sion. Buit, in fact, thewif herselfin those letters, so far from imputing to himany blame whateverin his charactercofa hiusbandl, wrote to him in the most affectionate terms long after their separation. At Bath she vis%ited And cohabited with hirm for several days. No quarrel. took place on that occasion nor was there any complaint m.ade of any want of tenderness on IgparTt When theY so mtet. Having quitted Bath on the 31st of December, she niext day (the lst of January, 1.821) wrote him- a mnost affectionate note, expressinig it hope that at some futuire time they might Again live togethier, " never more to part." And as lately as the 3d of F'ebruary following, sIte wrote .wain, sending hiim a ring, enclosing somle of her iiair. WhIethier these expressions of afectiotivwere genuine, might be a little doubt. fuil, for it appeared that she had formed an acquaintance with Lietnt. Pottt -tome tivne in 1820, and eloped with hini in tile month of Febru- ary, 1821. being in less than three weeks after the (late of the last Of these letters to her hiusband. The Court then adverted tolllrs. But. dery's letter to Mr. Barkter informinig him of the elo-semrnt, anti to the pirompt and proper steps which that gentleman took in consequernce. They testified that, he felt as a man shotuld do, alive to the duties which his own honour required ofhimn. The case here offered itself undeer a totally cliff'erent aspect fromi tlat whiich it bore when" it was before the learnt-e permon whlo presided in the conirt below anld it was this CourVt' opinion, that, under the eireumstanice8, tim hiusband Was etwitled to a sentence of separation from his wife ulln acount Of her adusltery.-Appeal affirmed. Grrs.s AGA1SyST GrLrS. Dr. PseLLaMOTtF. opened tiis casge. It wasa suit of separationl and divorce promoted by Mrs. Sarah Giles, against her husband, .James P. Gyiles, Esq., by reason of adultery by himn committed and camne up hither byletrers of request from the Cousistorial Court of Bath and WVells ; whiich letters were exhibited in January of the present year. The libel constistedI of 19 articles; whicti pleaded thie marriage of the parties on the Mill of Janutary, 10801, the register and certificate of the tame, the partiCes'cohabiltation at Bath and -elsewhere,' the birth of four children, and that in 1821, ltr. Giltia entertained ain adulterouis connexion withi divers womnen, &r- It further pleadedl, that in the month of August, 1815, a Young1 woman, named Sally Wheeler, was taken into the service of Airs. ils,as a nurse, and so c.,ntirnued to live witli themn, until Mrs. Ohiles qluitted her husband's hiouse that in 1821, usiknown to that lsd v; he carried o anL crimninal intercourse with Sally Wheeler; that he w,ould siend for hier after dinner, and give hier fruit and wine that Sally assiumed prodigiously iupon ibis distinction, bothi with hner fellow.ser7ants, arid with her mistress; that Mlr. Giles, uipon his wife's remionstratinr with him, protested " that Sally was more than a wrife to him," andI that when MrTs. Giles proposed to dismiss her from her service, sally positively declined to go, observ- ing, that she should take her orders from her mnatter, and not frum Mrs. Giles. The remainder of the libel pleaded various acts of in.- sult oni the youlng woman's part towards hier mnistress, and ithe infa- tuated attachmaent s'hich her mnaster continued to enitertain for her- His expressions of contyrition to his lady, and lhis refus;al to send the girl away-the departure of hilrs. Gilca from her own house--her being overtaken at Devizes 6n he-r road to L-ondon by her husband, s;ho passedl the evening with her, but nextnmorning slolermny pro. k.tedrt that he could not part with the Fiascintatng servant, andfinally, his reidencaTand cohabitation foe* a period of between three and four mnonths at an inn at Weston-super-Mare, with the same SallY Wiheeler hts. GilIes, during this mimne, had successi velY reni'Oved with her children froin Bellevuc, in Bath, to Lansdo'Mceset in that city ; and from Lensdown-.crescent, Bathi, toinon There was no evidence adduced in su1mort of the charge asto r.1 (siles'si indiscriminate adulteries witlo variouis wometi, &c. The learned wounsel submittedi, that his client, Mlrs. Giles, was eviriently entitled to the sentence she craved. Dr. JixroER thought that he must admit the adultery; hut doubted whether the identity of his party' was suafficiently proved. Sir Joww NII-TOLL said heielt qute satisfied with theproofs both s to he ientit, an as t theadultery conismitte4 by t Gile myhs all Whele: wereorehe pronounced a sentence of repaatin, s payed~Qusrin a topermanent alimnony reserved. * Thy wre ot eadIn Court. ARCE{ES' COURT, MowNDAY, Nov. 22. BARKEYL AGAINST BAJREM