CHAP. Validity of deeds of separation. Action for Crim. Con., notwithstanding deed of separation. No implied warranty from high price of goods. In Rodney v. Chambers* the important question arose upon the legality of a covenant by a husband, who had been separated from his wife and had been reconciled to her, to pay a certain sum of money annually to trustees for her support in case of a future separation. His counsel contended that such a covenant was contrary to public policy, as tending to encourage the wife to leave her husband, and to disturb the harmony of conjugal life. Lord Ellenborough." I should have thought that it would have fallen in better with the general policy of the law to have prohibited all contracts which tend to facilitate the separation of husband and wife; but we cannot reject the present on that ground without saying that all contracts which have the same tendency are vicious-which would extend, for aught I can see, to provisions for pin-money or any other separate provision for the wife, which tends to render her independent of the support and protection of her husband. Deeds of separation are not illegal, and I cannot see how it is more illegal to provide for future than for present separation." [Judgment against the husband.] Whether in consequence of this deed, or from some other cause, the wife soon after separated from her husband and had an affair of gallantry with a military officer. An action for crim. con. being brought, the defence was set up that the plaintiff had voluntarily renounced the society of his wife, and therefore that this action could not be maintained, the gravamen of which is the per quod consortium amisit; but Lord Ellenborough held that although the husband had made a provision for his wife's separate maintenance, he could not be said to have given up all claim to her society and assistance, and that he sustained an injury from the adultery which brought disgrace upon his name, and might introduce a spurious progeny into his family.† In Parkinson v. Lee,‡ in contradiction to the loose maxim that on the sale of goods a sound price implied a warranty of soundness, Lord Ellenborough, with the rest of the Court, decided that upon a sale of hops, however high the price might be, there was * 2 East, 283. † Chambers v. Caulfield, 6 East, 244. + 2 East, 314. XLIX. no implied warranty that the commodity should be merchantable, CHAP. and that in the absence of fraud the governing maxim is caveat emptor. Mr. Justice Johnson, an Irish Judge, having been indicted in the Court of King's Bench at Westminster for publishing in the county of Middlesex a libel on Earl Talbot, the Lord Lieutenant of Ireland, and having pleaded in abatement that as he had been born and had constantly resided in Ireland, he was only liable to be tried in the courts of that country, Lord Ellenborough, in a very elaborate judgment, overruled the plea, thus concluding: "If the circumstances of the defendant's birth in Ireland and his residence there at the time of the publication here, have the effect of rendering him not punishable in any court in this country for such publication, this impunity must follow as a consequence from its being no crime in the defendant to publish a libel in Middlesex. Indeed, the argument rests wholly upon this position, that the defendant owed no obedience to the laws of this part of the United Kingdom, so that he has not been guilty of any crime in breaking them. The learned Judge lays down for law that if he remains at Dublin, he may by means of a hired assassin commit a murder in London without being liable to punishment." The indictment being tried at bar, the libellous letters published in 'Cobbett's Political Register' were proved to be in the handwriting of the defendant, with the Dublin post-mark upon them. They were addressed to the editor of the 'Register' in Middlesex, and they contained a request that he would print and publish them. The defendant's counsel insisted that he was entitled to an acquittal on the ground that the evidence was defective. Lord Ellenborough." There is no question of the fact of publication by Mr. Cobbett, in Middlesex, of that which is admitted to be a libel; and the only question is, whether the defendant was accessory to that publication? If he were, the offence is established; for one who procures another to publish a libel, is no doubt guilty of the publication, in whatever county it is in fact published, in consequence of his procurement." Liability for publication of a England by order of libel in persons living out of England. CHAP. English underwriters not liable for embargo the Govern assured. The other Judges concurred, and the defendant was found GUILTY.* The Government of the United States of America having in the year 1808 laid an embargo in American ports on all American put on by ships bound for Great Britain, the owners, who were insured in ment of the England, gave notice of abandonment to the underwriters, and claimed a total loss. Lord Ellenborough acquired great glory by boldly deciding that, under these circumstances, the English underwriters were not liable. He proceeded on this maxim, that a party insured can never recover for a loss which he himself has occasioned, and he laid down that under every form of government each subject or citizen must be considered as concurring in every act of the supreme power of the country in which he lives: Validity of marriage of minor. "The foundation of the abandonment is an act of the American Government. Every American citizen is a party to that act; it has virtually the consent and concurrence of all, and, amongst the rest, the consent and concurrence of the assured. The assured having prevented the vessels from sailing, can they make the detention of the vessels the foundation of an action? "+ Where a marriage had been regularly celebrated by a priest in illegitimate orders, in the face of the church, between a man of full age and a woman under age, who was illegitimate, with the consent of her mother, the father being dead, and they had lived together as man and wife for many years, Lord Ellenborough decided (I think erroneously, although he had the concurrence of two able Judges, Le Blanc and Bayley) that the marriage was void and their children were bastards, because the Court of Chancery had not appointed a guardian to the minor, to consent to the marriage. This most revolting decision might have been avoided by holding on the true principles for construing statutes, that although Lord Hardwicke's Act (26 Geo. II. c. 33) says that all marriages not solemnized in the manner therein mentioned shall be void, this nullification applies only to the marriages of persons † 10 East, 536. Conway v. Gray. * 6 East, 583; 7 East, 65. XLIX. in the contemplation of the legislature, and that the marriages CHAP. of illegitimate minors could not have been in the contemplation. of the legislature with respect to this consent, as the condition requiring the consent of parents or guardians could not be fulfilled-so that this being casus omissus, the marriage in question was valid. But Lord Ellenborough's nature was somewhat stern, and he did not dislike a judgment that others would have found it painful to pronounce—rather rejoicing in an opportunity of showing that he was not diverted by any weak sympathies from the upright discharge of his duty.* HOTTEN However, he was always eager to extend the protection of Case of the British law to all who were supposed to be oppressed. Upon an TOTVENUS. affidavit that an African female, formed in a remarkable manner, was exhibited in London under the name of the HOTTENTOT VENUS, the deponents swearing that they believed she had been brought into this country and was detained here against her will, he granted a rule to show cause why a writ of habeas corpus should not issue to her keepers to produce her in court, and that in the mean time the Master of the Crown-office and persons to be appointed by him should have free access to her: At Venus ætherios inter Dea Candida nimbos Dona ferens aderat. She appeared before the Master and his associates magnificently attired, offered them presents, and declared that she came to and remained in this country with her free will and consent. A report to this effect being made to the Court, Lord Ellenborough said, "We have done our duty in seeing that no human being, of whatever complexion or shape, is restrained of liberty within this realm. Let the rule be discharged." † One of the most important questions which arose in the Court of King's Bench, while Lord Ellenborough was Chief Justice, was, whether the captain of a man-of-war be liable to an action for *Priestly v. Hughes, 11 East, 1. Mr. Justice Grose dissented; the decision was condemned by Westminster Hall, and finally the law was rectified by the Legislature. 4 Geo. IV. c. 76; 6 and 7 Wm. IV. c. 85. + Hottentot Venus's Case, 13 East, 384. VOL. III. M Liability of captain of a ship of war for damage done by her negligent management. XLIX. CHAP. damage done by her in running down another vessel, without proof of any personal misconduct or default? An award had been made against him by a legal arbitrator, who set out the facts on the face of his award for the opinion of the Court. Lord Ellenborough be in fluenced by lobster sauce. Lord Ellenborough.-"Captain Mouncey is said to be liable for the damages awarded in this case, by considering him in the ordinary character of master of the ship by means of which the injury was done. But how was he master? He had no power of appointing the officers or crew on board; he had no power to appoint even himself to the station which he filled on board; he was no volunteer in that particular station, by having entered originally into the naval service; he had no choice whether he would serve or not with the other persons on board, but was obliged to take such as he found there and make the best of them. He was the King's servant stationed on board this ship to do his duty there, together with others stationed there by the same authority to do their several duties. How, then, can he be liable for their misfeasance any more than they for his?" [Award set aside.]* The only occasion when Lord Ellenborough was ever seriously supposed to supposed to be swayed by his own interest, was in deciding whether sailors employed in the lobster-fishery were privileged his love of from being pressed into the Royal Navy. He had an extreme love of turbot, with lobster-sauce, and although sailors employed in the deep-sea fishing, where turbots are found, were allowed to be privileged from impressment, the Admiralty had issued orders for impressing all sailors employed in collecting lobsters on the rocks and bringing them to Billingsgate. Writs of habeas corpus having been granted for the purpose of discharging several who had been so impressed, the counsel for the Crown argued strenuously that upon the just construction of 2 Geo. III. c. 15, and 50 Geo. III. c. 108, they were not entitled to any exemption, not being engaged in the deep-sea fishing. Lord Ellenborough." I think the policy of the legislature seems to have been directed to the better supplying the inhabitants of the metropolis and other parts of the kingdom with fish, and for that purpose to bring sound and well-flavoured fish to our markets at a Nicholson v. Mouncey, 15 East, 384. |