Arches' Court, Wednesday,...
oLIU5 uciug cue nrst Gay ot term, there was a numcrous attendance of advocates and proctors at prayers. After the JUDO E had coIDe into Court, HsEwiRe VAX SALISBURY, LL. I)., of Trinity.hall, Cambridge, was (In virtuc of a rescript from his Grace the Archbishop of Canter- bury directed to his hfonour the Judge, the Dean of the Arches) admitted of the number of advocates in the Arches' Court of Canter. bury, he having first duly taken the oaths of abjuration and allegiance. DURANT AGAINST DURANT. Dr. LuSZIrNGT ON, in tlhis long-depending ease, applied for per. mission to bring in an exceptive allegation on behatlf of Air. Durant. The Court would remember that this was originally a suit of senara tion and divorce, promoted in the Consistory Court of Liehfiel, by Mirs. Mary-Ann Thurant.against her husband, by reason of various acts of adultery and cruelty bv him committed. In consequence of certain proceedings had in tbit court, wherein Air. Darant was pro. nounced in coutempt, the cause was appealed up hither; when the Judge pronounced tor the appeal, and retained the principal cause. The learned counsel then recapitulated the various stages througlh whicll these proceedings hRd subsequently travelled, and went on to show that no time was lost by his clicnt's proctor after being fur- nished with copies of the voluminous depositions of 44 witnesse-. 23 of whom were examined on the first plea; and 21 on a subsequent allegation of faculties. The Court must perceive, that in order to found and prepare an exceptive allegation, it was necessary that the depositions to be excepted to should be carefully perused by those who were best qualified tojudge of their probable effect in support- ing such an allegation; and it war the more necessary in the present case, where the depositions were made upon a plea not originally given In in this court, nor settled by counsel here ; but given in the court below, where pleas were known to be more loosely settled than in the Arches' Coart. It appeared. from certain af,davits now brought in, that Mr. Wood, tlie solicitor for Mr. Durant, and resident at Wolverhampton, had been so exceedingly in. disposed from November, 1822, to January, 1823, that he was totally disqualified from attending to business. In the mean while, publication had been decreed in this court-and it was, in consequence of Al r. Durant's legal assistants having since discovered that evidence could be adduced to invalidate the testimony of the witnesses on the otherside, that the present application was made for the re-opening of the case to admit an exceptive plea. The learn. ed counsel then proceeded to demonstrate that this prayer was the more reasonable, seeing that the facts which were pleaded-and, as he contended, most vaguely and loosely pleaded-in ?drs. Durant's libel, were spread overna space of 12 years, from 1808 to 1820, and charged acts ofodulhery with various women, n;t on particular days, but " at times" in such and such years. The Court would remark also, from the temrour of Air. Durasit's affidavit on this occasion, that it miglht ptobably expose him to an indictment for perjury, should he be unable to establish the grounds of his present praver ; for it directly charged much of the opposite evidence with falseliood, anti stated that counter.evidence might be adduced to contradict it with effect. Under these circumstances. it was hoped the Court wouid be induced to allow an exceptive plea to be introduced, and would rescind the conclusion of the cause. Dr. DoDsoN followed on the sarne side. Dr. ADA}S contended that this prayer could not possibly be ac- ceded to. Tnie whole tbundation of the plea w,ls, laches on the part of a ceuntry attorney, justified or excused by indisposition. But an Ecclesiastical Court, fbr any purposes otf this nature, or with refer. ence to any such application as this, could not recognize any such officcr as an attorney. It was, perhaps, to be lrmented that so much of the businers of these Courts already tound its way into-the hands of common law attornies; but if it were said that there were occa- sions or particular states of cIrcumstances which made it indispensa. bly necessary that proceedings of this kind should beso conducted in the country, itwas at east necessary forthe Courttodrawitsbandsome. where, by way of mnaintaining the requisite distinction betwveen its owni officers and those of the common law. And, to be sure, the in. disposition of an attorney could not support an application for so dangerous a measure in an ecclesiastical suit, as admitting an exceptive plea; and rescinding the conclusion of the cause two years after publication. It tiiht be a different consideration, did the appucation regard the Ilness of any proetor in the cause- but neither the party himself, nor his proctor, having been at ali disabled fromn dul7prroseecutilng the cause, the leamed counsel sub. mitted that it would be highly inexpedient and impolitic for the Court to listen to the praver of the other side. Dr. JpNx E3L was with Dr. ADiAMs in this case, and contended strongly, that all due diligence had not beei usetl in this cause by M r. Durant. It was also material to obseive, that during the a leged period of Air. Wood's indisposition, his mind and facul. ties were, at least, active enough in the service of AIr. Pelham, a candidate for the representation in Parliament of a borough, to the freeholders and electors of which lir. Wood prepared anid atidressed a long letter on the occasion, printed and advertised in a provincial paper now produced. lloreover, during the same interval, he at. tended at several parish meetings, in the business of whicih hie took an active part. It would appear, therefore, that Air. Wrood was all this time perfectly competent to business, antl to have afi)riled NIr. Duraut all the assistance necessary for the preparation of his allegation in due time. In the course of the proceedings in this cause, a similar application had alreadly been made, on appeal to the Court of Delegates, and that appeal was rejected. Sir JoHaT NIcHToLT. particularlv stated the various pro.l ceedmn8s which had been liad in this niatter, and explained the prnciples upon which the Court sometimcs admitted, even after the publication of all facts, allegations exceptive to the credit of witniesses. But this indulgence was never granted, unless it couli be shown that the exceptive plea regarded new nititters, or things " novitcr ad Itotitiaes pervenla" as regarded the applicant; and it was also necessary to establish the fact that due diligence had been exercistd by hiM in endeavourin. to obtain the evidence necessary to support such plea in proper time The Court was even then reluctant to break through the rule of proceeding to the conclusion of the cause ; because it was clear, that to admit new testimony on one side, after the publication of all the evidence wbich was to be adduced by the adverse party, wouldi be to l open wide a door for the possible admission of perjury. and the stub. ornation of witnesses. In this case it was obvious to the Court that due diligence had not been exereised ; and without enterhig into the matter of AlIr. WVood's affidavit more particularly, it was shown on the face of it that he was sufficiently able to have conlmnt- nicated with Alr. Durant, and to have obtained all tle evidence it night have been proposed to get for an exceptive plea, in the usual and due time. Besidee, this Court could not recognize (though aware that such professional assistance as that of a solicitor in the couintry Was somettmes necessary) any oilier than tlre proctor as the respon- sible agent in a suit; he was the " damnings litLe," and not the aittorney of his party. Under all the circunistances of this applica. tion, and on the matters stated in the affidavits both of Mlr. Durant himself and Mir. Wood, the Couirt could llot consent to admit, at present, any exceptive plea, nor to rescind the conclusion of the cause, which it now assigned, absolitely, tbr sentence. On referring, too, to the minutes of proceedings, it appeared, that so long ago ats Alichaelmas Tlrerm, 1822, AlIr. Durant's party declarel thathlie should offer no allegation, unless exceptive to the credit of wvitnesses; and yet, at tlhis ilistance of fliie, it vas sought to introduce an eu. tirely new and substantive ple. _ ?ALCHES' COURT. WEnNESDAY. Nov. 3.