I allot 50%. a year as alimony, pending suit, to commence from the return of the citation, the money already paid on account being first deducted.

The Proctor of the husband prayed, that the monition should not go out till after fifteen days.

THE COURT said, that the suit had already been depending two years; that the wife had had only 80%., and that consequently there was still a balance due to her. The delay in the issue of the monition was quite unusual, and it saw no reason for departing from the ordinary practice.

HAMERTON v. HAMERTON.-p. 8. 7.ε.2.17.22

When no indecent familiarity, proximate act, or personal freedom (except two kisses), and no circumstances inferring adultery, are proved; letters from the alleged paramour, found in the wife's possession, but not necessarily implying the commission of adultery, will not support a sentence of separation by reason of her adultery: but if the evidence raises a suspicion that an adulterous intercourse is carrying on between the parties accused, the Court may, upon affidavits, rescind the conclusion, and allow the husband to give in an allegation.

The Court cannot separate on improper conduct short of actual adultery. The law does not require direct evidence of the very act committed at a specific time and place; but the Court must be satisfied that actual adultery has been committed.

THIS case, in some of its earlier stages, is reported in 1 Haggard, 23. It was now, at the hearing, argued by Lushington and Dodson, for Major Hamerton; and by the King's Advocate and Addams, contra. JUDGMENT.

SIR JOHN NICHOLL.

This is a suit for separation a mensa et thoro, by reason of adultery, brought by the husband against his wife. The parties, Major William Hamerton, an officer of Artillery, and Miss Isabella Romer, were married at the British Ambassador's chapel at Paris, in December, 1818, and of that marriage, which is confessed and sufficiently proved as the substratum of the suit, there is issue one daughter now living, and about nine years of age.

The parties cohabited together from their marriage, and up to the 25th of March, 1827, at various places-principally abroad; but, for the last seventeen months of that period, at Cheltenham: they then separated, he having dismissed her his house on finding certain letters; and no subsequent cohabitation is suggested; for she soon after went with her mother to Tours in France, and has ever since remained abroad.

During their residence at Cheltenham, which began in August, 1825, they lived, first, at a house in Montague Place till the spring of 1826, and then removed to Fancy Hall, where they continued the remainder of the time. At No. 1, Bellevue Place, near their former residence, there dwelt an elderly lady, the widow of an officer of rank, Mrs. Mathews, who had been the intimate friend of Mrs. Romer, the mother of Mrs. Hamerton, and of Mrs. Hamerton herself from her infancy.

The libel charges adultery with Mr. Bushe, a married man, who with his wife, Lady Louisa Bushe, lived at No. 2. Oxford Terrace. The acquaintance is alleged to have commenced at a fancy ball given by

Mrs. Hamerton in January 1826; though from some part of the evidence it appears, that an acquaintance between Mr. Bushe and Major Hamerton subsisted previously.

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The fifth article of the libel pleads that Mrs. Hamerton and Bushe first became acquainted at a fancy ball, to which I have just referred, and then alleges that soon after the commencement of their acquaintance an improper intimacy entirely unknown to the husband took place between them, and that at such time they have committed adultery." The sixth pleads "that in the spring of 1827 Bushe availed himself of every opportunity unknown to Hamerton, and during his absence out hunting or elsewhere, to keep up an improper intercourse with Mrs. Hamerton; that he very frequently met her by appointment (particularly at the house of Mrs. Mathews, No. 1, Bellevue Place, Cheltenham), and on many occasions gave her notes or letters, conversed with her for considerable periods of time, and occasionally in French." No adultery nor indecent familiarity is specifically alleged in either of these two articles; no impropriety but this correspondence by notes. Now, that subsequent to this acquaintance, a great intimacy arose, and that frequent interviews in the streets and at other places by appointment, and that improper conduct took place, is pleaded in the eighth and ninth articles. (a) The eighth alleges, "that in March or April, 1826, Mrs. Hamerton, being out in the carriage with her little girl, met Bushe, who said to her in French, If you will go to No. 1, Bellevue Place, Í will meet you there;' that she immediately returned home, left her daughter, and proceeded to No. 1, Bellevue Place, where on her arrival she was met by Bushe: that Mrs. Mathews went up stairs; and that Bushe and Mrs. Hamerton remained alone together in the parlour, (the 16.4 blinds of which were drawn down) for upwards of twenty minutes, and during such time committed adultery." Here is an averment of adultery, but the witnesses examined do not prove, in this parlour, (for there it is laid) any indecent familiarity, nor any thing beyond a mere visit. It is true that the blinds were down, but that was the habit of the house: it cannot be pretended that these averments of adultery are in any way proved, so that the Court can receive them as a fact established against the wife.

The ninth article pleads, "that a few days afterwards, being in or about March or April 1826, Mrs. Hamerton being in her carriage, in the High Street, Cheltenham, met Bushe, who, after conversing with her, ordered the carriage to go to Malcolm Ghur, (a retired spot in the outskirts of the town) the residence of Major and Mrs. Croker; that the footman then told Mrs. Hamerton he had just seen them pass by, but she desired him to go to Malcolm Ghur: that on arriving there, the footman knocked at the house door, and returning to the carriage found Bushe with Mrs. Hamerton, and they remained together alone for above half an hour."

I do not understand that any impropriety or familiarity is alleged on that occasion.

The tenth article alleges, that about a month after the meeting, pleaded in the ninth article, (being therefore in March or April) Major

(a) The seventh article, in substance, pleaded, "that Mrs. Hamerton, after her intimacy with Bushe, entirely changed her usual habits, and became very inattentive to her child of whom she had been previously exceedingly fond."

Hamerton, having reason to believe that Bushe was a person of loose morals, desired his wife to break off all acquaintance with, and to cease speaking to, him; that notwithstanding such direction, she continued clandestinely to meet Bushe, and keep up an adulterous intercourse with him."

Of this interdict at this time there is no proof. Two witnesses are examined on this article. Parsloe, who was in Captain Mathews' service while at his mother's at Cheltenham, in the spring of 1826, knows of no interdict. Welch, Major Hamerton's footman, speaks to an interdict in January, 1827. Undoubtedly if Major Hamerton was persuaded that Bushe, a man of dissolute habits, was in pursuit of his wife, though he cannot be suspected of criminal imprudence or connivance; yet it would have been an act of more caution if he had withdrawn from Cheltenham, a mere casual residence, where his frequent absences in hunting exposed his wife more unprotectedly to Bushe's approaches. Though this does not amount to connivance, one of the basest offences that can be imputed, yet it does amount to want of prudence, particularly considering the opportunities that the habits of such a town as Cheltenham furnish. The eleventh and twelfth articles plead facts which I will consider hereafter.

The thirteenth charges adultery in London, and at a house near Fulham; but there is no proof that the parties ever met in London or at Fulham.

On the fourteenth article, there is no evidence that any thing criminal occurred at Pittville in July 1826.

The fifteenth alleges a meeting at the house of one Adamson; but there is no proof that they were ever in the house together. This is laid as happening the latter end of February 1827, and it is proved that Mrs. Hamerton was seen coming but of that street and going to Colonel Ollney's, and that Bushe also came out of the street soon afterwards and went to his own house. This may be suspicious, but it is no proof that they had seen each other, much less that they had met at Adamson's, and there committed adultery. It is charged that she was much flushed, and that her dress was disordered when she arrived at Colonel Ollney's, and on her return home. If it had been proved that she had been at Adamson's, these other circumstances might have aided, but no meeting is proved; and considering she was naturally of a florid complexion, and had walked through the air in the month of February, it is not surprising that her colour should be heightened: at Colonel Ollney's she sat by the fire and had a handscreen; she again walked through the air home, and appearing flushed when she arrived there, her husband asked, "What made her face look so red," and said, "It looked very odd;" he was suspicious and showed himself jealous; but there was no disorder of dress that the servant observed either at that time, or when she dressed her hair before dinner; no agitation of manner that attracted attention; nothing to show improper personal correspondence.

The next charge, on the sixteenth article, is at a house called the Pavilion. Bushe took this house on the fourth of March, 1827, and the separation took place on the 25th, and there is no proof that Mrs. Hamerton ever was in that house, nor is it even to be inferred from the letters of Bushe found in her possession.

As far then as the oral evidence goes, there is no proof of actual

19.

adultery. If there is any proof it must be on the eleventh and twelfth articles, which plead the letters. These letters begin in January and end on the 15th of March; and Bushe, in the last of them, talks of returning to Cheltenham on the 25th, on which day the discovery was made. What then are the proofs on the libel of actual adultery? for the Court cannot separate on improper conduct, short of actual adultery; such conduct may lead up to the proof of guilt; and it is true that the law does not require direct evidence of the very fact committed at a specific time and place, but it does require the Court to be satisfied → that actual adultery has been committed. That is the principle laid down and admitted by the counsel on both sides, "that there must be a surrender of her person to the embraces of the party with whom the offence is charged." Though the intercourse is alleged to have been kept up for above twelve months, and though thirty witnesses have been examined, yet no indecent familiarity is even laid; no proximate act is pleaded in the libel; and no personal freedoms are observed, except that two witnesses speak to a kiss; one, on a staircase at a ball; the other, while Bushe was handing her into the carriage, the witness standing at the door of the house. These kisses are not pleaded in the fifth article, on which the witnesses depose to them, are not strictly evidence on that article, and should scarcely have been taken down. Herbert, a confectioner at Cheltenham, of the age of twenty only at the time of his examination, speaks to the first. It was at the fancy ball in January, 1826 -the very commencement of their acquaintance; though Welch says, that Hamerton and Bushe were acquainted long before. Mrs. Hamerton undoubtedly ought to have resented this conduct; but it is a slight circumstance except as showing the assurance and libertinism of Bushe.

才

The other witness is Main: he says "that he was waiting at a party at Colonel Crowder's, about March, 1826, and that, while at the halldoor, he heard the sound of a kiss after Bushe had handed Mrs. Hamerton into the carriage; and that they afterwards shook hands." The kiss, then, might be on the hand; for it is not very credible that she should have ventured further in sight of this servant. The fact, I repeat, is not pleaded, and at the utmost it is slight. No other personal familiarity is then spoken to, except the shaking of hands, which is so almost universally practised in modern manners, that it cannot lead to an inference of improper intimacy: whether the constant habit tends much to support the delicacy and propriety of females may admit of different opinions, it is to be considered as the common intercourse of society that may occur without guilt.

What then is the proof of guilt at Mrs. Mathews'? The charges are laid in the sixth, eighth, eleventh, and twelfth articles. The sixth is a mere general and introductory article; and I have sufficiently noticed it. The eighth also has been adverted to; and I may here again remark, that in that room the blinds were usually down; there was no sofa in it; no familiarity was seen, and the door was not fastened. No witness, though three have been examined, ventures, upon any sufficient ground, to swear to a belief that adultery was committed in that parlour. Welch rather negatives it.

The eleventh and twelfth articles are very loose: hardly time or place is so specifically fixed as to afford an opportunity to meet the charge. The eleventh pleads "that notwithstanding the direction given by Ma

jor Hamerton to his wife (as set forth in the tenth article) and within a few days after, she stopped and conversed with Bushe in Sherborne Walk; that they again shortly afterwards made an appointment to meet at Mrs. Mathews', at No. 1, Bellevue Place, at the door of whose house he met her, and they went in together, and remained in one of the rooms with +14., the blinds drawn down for a considerable time; and on that occasion committed adultery." But the twelfth article is the most important. 402452 It pleads that during the summer, autumn, and winter of 1826, and the beginning of 1827, Bushe and Mrs. Hamerton continued clandes-7428. tinely to carry on their intimacy; that on several occasions, and particularly in July and December, 1826, and also in January and February, 1827, they met at No. 1, Bellevue Place, and remained for considerable spaces of time alone together in a room belonging to that house, and then and there on each of these occasions committed adultery."

This is laid in such a way that it is impossible for the party to defend herself. Nothing but very clear evidence, that they did meet on some occasion, would very consistently with justice warrant the Court in concluding that she was guilty of the crime imputed: it must be such evidence as would allow the wife to counterplead even after publication.

Two maid-servants, Hargrave and Bright, depose to these articles. To what does their evidence amount? Mrs. Hamerton was almost an adopted child of Mrs. Mathews; she was very frequently at her house, at all times of the day. Mrs. Mathews had a son, Captain Mathews, who according to the evidence of Parsloe and Bright, was staying at her house eight or nine months till June 1826. Bushe was intimately acquainted with Captain Mathews, and often called upon him; Bushe, too, probably might go still more frequently for the sake of seeing and of endeavouring to seduce Mrs. Hamerton; but after Captain Mathews left Cheltenham in June 1826, Mrs. Romer, Mrs. Hamerton's mother, was at Mrs. Mathews' for three or four months in that year: and Hargrave says, "that during that time Bushe did not come at all to Mrs. Mathews';" and the libel leaves a chasm in the meetings from July till December 1826. The same witness says, "that after Mrs. Romer was gone, Bushe and Mrs. Hamerton were never left alone together by Mrs. Mathews, except for a few minutes;" and Bright thus deposes; "she well remembers that for some time before the separation, Mrs. Mathews did not ever leave Bushe and Mrs. Hamerton alone together."

Mrs. Hamerton had a husband who suspected and cautioned her, and 447 she would have acted more properly and prudently if she had carefully avoided Mr. Bushe upon any occasion. Upon one occasion, however, Mr. Hamerton dined out, and she took an early dinner with Mrs. Mathews; while they were at dinner Bushe called; he was shown up into the drawing room; there Mrs. Hamerton immediately went to receive and entertain him. There is nothing extraordinary or unusual in this interview disconnected from other circumstances, the kisses and meet- + ings; it is only what might occur in any family: the hour of visiting was not passed; a visitor was announced; Mrs. Hamerton might have said, "I'll go up stairs and entertain him while you finish your dinner." The old lady staid and finished her dinner; afterwards, according to her custom, she went to her bed-room, attended by her maid, and then came down to Mrs. Hamerton and Mr. Bushe into the drawing-room. Here then they were alone together for some time, and there was a possibility of the act of adultery. But if any one else had called, the transaction VOL. II.

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