way. He was therefore to consider this case as a case to be decided on principle. They had, every day, points arising in the Courts of Law, and of Equity, in which the same principle was decided-namely, that where a party appeared to a suit and pleaded, and admitted facts, he could not after

gal was now precluded from objecting, having submitted to the jurisdiction, and that Mr Chichester was bound by her submission.

Motion refused.

termed in Scotland) recoil from those facts. The Marchioness, therefore (his honour thought,) was concluded from objecting now. Then came the important question, whether, because she had concluded herself, she had also concluded an intervening party. And this appeared to be a most important point at first sight. But the object of the law being for the benefit of persons living out of the limits of the jurisdiction of the Court, she might waive her right to such benefit if she chose. But, then, could she waive the rights of others? Undoubtedly, if it could be made out that Mr Chichester could be prejudiced in any possible way; if he (the Vice-Chancellor) could fancy a case in which it could prejudice him, it would go a great way to affect his opinion. But he could conceive no such case. If the jurisdiction of the Ecclesiastical Courts depended on the locality of the subject, then, indeed, if Lady Donegal had transferred the suit from the Court at A to the Court at B, a third party ought not to be affected by her act. But their jurisdiction depended on the locality of the person. Now, how were the interests of Mr Chichester to be prejudiced by the proceedings being instituted in London, instead of Ireland? So far from its being an inconvenience, it was a great convenience to him to have those interests tried there, rather than elsewhere. His honour, therefore, confining himself to those two points, was of opinion, on authority and principle, that the Marchioness of Done

KINE.

Consistory Court, May 25.

The counsel for her ladyship stated, that this was a cause originally instituted by the noble peer for a separation, on the alleged ground of infidelity by his lady. An appearance was given for her on the first session of Michaelmas Term, 1820; a libel. or plea, on the part of his lordship, charging various criminal acts, was afterwards given in, and admitted to proof without opposition; and several witnesses were produced and examined. upon it. In the course of the following Term, two separate pleas had been given in by Lady Erskine; the first being what is technically called an allegation of faculties, stating the amount of his lordship's income, in order to obtain therefrom a suitable allotment for support during the pendency of the cause; the other was an allegation, with some documentary proofs annexed, charging his lordship with criminalities similar to those which he imputed to his wife. Both those allegations were also admitted to proof without opposition. His lordship had not yet given his personal answers to either; but on the latter plea, charging him with infidelity, various witnesses had been produced, and had undergone examination. Among these latter was one Mary Ann Buck, a young person, niece to her ladyship. Against this witness it had been found necessary to obtain a compulsory de

cree to oblige her to attend. A decree of confrontation to compel his lordship to appear and be confronted with the witnesses, had also been ta ken out; and both decrees were served on the respective individuals, and returned into Court by the proper officer with a special certificate of service.

The evidence of the witnesses taken by secret examination, as is customary in these Courts, had not yet been made public; but on the first Session of this Term, Lord Erskine's proctor declared that his lordship did not mean to proceed any farther, and prayed that the Court would allow him to be dismissed from the suit. On the part of her ladyship, this declaration and prayer were opposed, and both parties were accordingly assigned to set forth the grounds of their application in an act on petition.

After this introductory statement, the act of petition was read, and an affidavit by her ladyship's proctor and his clerk was tendered; but the counsel for the noble lord opposed its being read. They stated, that it related principally to the supposed causes which had induced the witness, Mary Ann Buck, to delay appearing; but she having afterwards appeared, it became quite irrelevant. It was indeed irregular at first. The proper mandatory to execute the Court's decrees, is the Court's officer, and he is to explain their service, and not the proctor of either party, or the proc. tor's clerk. Here the witness, being of tender age, and standing in the peculiar situation in which she did, was naturally averse to appear. A compulsory decree was therefore served on her, and if she had still kept back, a decree viis and modis might have issued. The affidavit was made on the 8th of May, but she appeared and was pro duced for examination on the 10th,

and this affidavit was not made till the 11th.

The Court then intimated a desire to know why it was brought in at all, after the compulsory decree had had its effect?

Lady Erskine's counsel said, the affidavit was, in fact, delivered to the opposite party before the 10th of May. The officer having made a return to the compulsory decree, certifying that the witness still kept back, it became perfectly regular in the proctor to make an affidavit, stating, on the best information he could obtain, the belief which he entertained that she was kept back by his lordship's means. Nor was it only regular at the time of making it, but it was relevant to the present act on petition; for in that act, the proctor for Lord Erskine referred to a notice sent to him by the adverse proctor, on the 4th of April, that if his lordship did not proceed in the cause, Lady Erskine would apply to the Court to be dismissed. This was, in fact, only the usual notice to urge a dilatory complainant to expedite the cause; but it had been attempted to raise an inference from either, that Lady Erskine was thereby bound to agree to the dismissal of the suit; or, at least, that Lord Erskine was led to suppose that from that period she would proceed no farther. Now, on the contrary, it appears, that from the 8th of May, he was not only aware that she was proceeding to compel Mary Ann Buck to appear; but that he was charged at least on suspicion with an attempt to tamper with the witness, and keep her back from justice. The learned counsel said, it gave them great pain to allude to such matters, but their duty to their client demanded it. They would have been justified in making them the ground of a more formal plea, and demanding his lordship's an

swers to them upon oath, but they were satisfied to state them on affidavit, leaving it to his lordship to repel the imputation in any way he thought best; but he had not attempted to repel it in any way.

To this it was replied by the opposite counsel, that his lordship had been advised by them to take no notice of a mere surmise taken up at third or fourth hand, and, therefore, deserving no notice by the Court-that the affidavit was really made with no other view than to ground a further application for compelling the witness to appear, which end had been fully answered by her appearance.

The Court said, that it should not admit the affidavit. Only two purposes were alleged for its introduction; one to compel a witness to appear, who had since appeared, the other to throw imputations of a serious nature on one of the parties in this painful cause. If such imputa tions were well founded, they certainly ought not to be brought forward on a mere loose affidavit, which the noble lord cannot be compelled to answer; but they should have been put into a more formal shape.

The main question of his lordship's right to be dismissed, in the present stage of the cause, was then proceeded on; and the adverse counsel contended, that it was absurd to suppose that a party having brought an accusation against another, and that other having put in a formal plea of recrimination, and examined witnesses upon it, the first accuser could be at liberty to put an end to the business at his pleasure. Lady Erskine here may prove her allegation against his lordship; and if she does, and his lordship fails in his proof, she will be entitled to demand a separation from him, with a proper alimony suited to the circum

stances.

Lord Erskine's counsel contended, that where the second allegation was merely defensive, and did not formally deny the guilt charged in the first instance, these principles would not hold. Here Lady Erskine not only does not deny the guilt, but she is charged with confessing it, and she does not even deny that. Moreover, she pleads that since the alleged acts of infidelity on her part, Lord Erskine has voluntarily continued his incercourse; now this can only be pleaded as a condonation, and as such is equivalent to an admission of guilt. The case is different where a party from the beginning stands on the ground of innocence. Again, if the lady has connived at her own dishonour, she cannot claim a separation. Now it is alleged in her plea, that Lord Erskine frequented houses of ill-fame from October, 1818, to the time of the plea in February, 1821, and also kept up an illicit intercourse during that time with one Elizabeth Fenning.

The cases referred to on both sides, were those of Chettle v. Chettle, in the Court of Arches, 7th June, 1820, and Best v. Best, Consistory of Rochester, 24th May, 1821. The former was a suit by the husband for adultery, which was replied to by a charge of adultery and cruelty; but the Court rejected the articles pleading cruelty, as no bar to the original suit. The latter was a charge of cruelty; but the husband alleged adultery, on which it was allowed, that he might, if it were proved, obtain a divorce.

The Court took time to deliberate on the question, whether his lordship might be allowed to retire from the suit.

Next day, the noble lord addressed the following letter to the editor of a Morning Paper :

SIR,

I have read with the utmost surprise, in several newspapers, the reports of what passed on Friday last in the Consistorial Court, in the suit which I preferred against Lady Erskine for adultery. Not having been myself present, I do not know whether they, or any of them, are correct or incorrect; but I feel myself bound, in justice to my own character, to declare through you to the public, what the case actually was :—Î had prefer red (as I have just stated) a suit against Lady Erskine for adultery; but, in the course of it, circumstances having come to my knowledge which fully convinced me of her innocence, I directed my proctor, Mr Nicholl, to withdraw my suit, which was accordingly done, and afterwards delivered to him and to my senior counsel, Dr Swabey, a written paper to that effect, and entreated them that this reason might be stated in open Court, in justice to Lady Erskine.

We had also agreed on a deed of separation; but because I would not execute it until the suit had been withdrawn, that my motive for withdraw. ing it might not be misinterpreted, the suit was continued by Lady Erskine's proctors against me, which gave the opportunity of reading my paper in Court, or of having the effect of it stated by my counsel; but, from the reports of what passed in several newspapers, I found, to my great surprise, my counsel maintaining Lady Erskine's guilt, though the evidence still continued secret, and though I had instructed them to declare my fullest conviction of her innocence; and imputing also to me the baseness of cohabiting with her, believing her to be guilty, though no such allegation was before the Court. Being ignorant of what passed in Court, I impute neither malice nor mistake to any of the

several reporters; but knowing that my proctor and my learned counsel must confirm what I have stated, it is my intention to attend in the Court on the 5th of June, being the next Court day, to justify my conduct to the world.

In the paper above-mentioned, which I desired might either be read, or the purport of it brought before the Court, I stated, that having now a full conviction of her innocence, I should think it wicked to submit to the Court for its judgment, and to the world through the publication of the evidence, what in my conscience I believe to be unfounded.

I am, Sir, your obedient servant,
ERSKINE.

Sunday, May 27.

June 5.

As soon as the Court met this morning, Lord Erskine, in pursuance of the public notification which he gave in his letter in the newspapers some days ago, appeared in Court, and took his seat on the bench next Sir William Scott, the presiding Judge.

As soon as the proctor had read the names of the distinguished parties in the suit,

Dr Swabey rose and said, that he was counsel in this suit for Lord Erskine, and he was instructed to inform the Court, that the noble lord being, since the institution of these proceedings, perfectly satisfied of the inno cence of Lady Erskine, had determined, in justice to her ladyship, and to his own feelings, to withdraw his suit for a divorce. Certain proceedings were now pending between the parties, which, the learned doctor said, he hoped would terminate the matter at issue, by a deed of separation, which was then drawn up. The Court was aware that Lady Erskine had also ap

plied for alimony, and a separation, and her suit was still pending. Lord Erskine was, however, anxious to state, that he meant altogether to withdraw his application, even if her ladyship were advised to continue her suit against his lordship, should the adjustment now going on out of Court, not terminate in a deed of separation between the parties; so that notwithstanding this abandonment of his lordship's suit, Lady Erskine might, if so advised by her counsel, still pursue her application to the Court, if the proceedings now carrying on between the parties did not end in a deed of separation. He therefore prayed, that the assignation granted by the Court should be allowed to stand over till the next Court day.

Dr Adams said, that, as counsel for Lady Erskine, he could of course have no objection to the application made on the part of Lord Erskine, that the assignation decreed by the Court should stand over until a future day. Upon the other matters referred to by Dr Swabey, he (Dr Adams) should perhaps better consult his duty by say. ing nothing upon the present occa

sion.

Sir W. Scott then ordered that the assignation should stand over till the next Court day.

Lord Erskine then rose, and, with evident emotion, observed, that he attended this morning in Court, for the purpose of declaring his concurrence in what had fallen from his counsel. He was the more anxious to do so, and he made the declaration loudly and openly, because there was no person in this land, in whose good opinion he was more anxious to stand well, than in that of the learned person who presided in that Court. The noble lord then bowed to the Court, and

resumed his seat.

Sir William Scott said, that as the

matter now stood, he trusted the learned counsel who advised Lady Erskine, would concur as far as they could, according to their sense of the justice of the case, in recommending such a course as would spare the Court the painful necessity of deciding upon this case. He (Sir Wm. Scott) had an ancient regard and friendship for Lord Erskine, and must always feel a deep interest in whatever concerned Lord Erskine, or the peace of his family.

MARQUIS OF LONDONDERRY, FOR WINDOWS BROKEN AT THE QUEEN'S ACQUITTAL.

This was an action against the Hundred of Ossulston, for damage done to the noble plaintiff's house in St James's square, upon several occasions pending the proceedings against her Majesty.

Mr Gurney stated the case. The mischief had been done upon several days-to wit, upon the 6th and 7th of June; and upon the 10th, 11th, and 13th of November, 1820. Actions like the present, the learned counsel said, became matters of public duty; for the true mode of preventing the outrages of mobs was to convince them that their attack did no real mischief to the individual against whom it might be directed.

Richard Pigott stated that he was, at the time specified in the record, in the employ of the Marquis of Londonderry. On the night of the 6th June, a mob of 150 or 200 persons assembled before his master's house. They knocked at the door and called for lights; they then threw stones, and six panes of glass were broken. On the 7th June, a mob of from 300 to 400 conducted themselves in a similar manner.