« EelmineJätka »
it was not obligatory on the trustees to sell the real and leasehold estates during the life of the testator's widow, unless she should in writing request them so to do, or unless the trustees were both of opinion that a sale ought to take place; but that if they did not so agree that a sale was advisable, and there was no such request in writing, then they could not be compelled to sell. Held, therefore, that the appeal must be allowed. Decision of Stirling, J. reversed.
[Re Lever : Cordwell v. Lever. Ct. of App. No. 2. Lindley, Smith, and Rigby, L.JJ. Feb. 16, 17, and 18.-Counsel : for the appellant, Grosvenor Woods, Q.C. and K. G. Metcalfe ; for the respondents, Graham Hastings, Q.C. and Dunham ; P. S. Stokes ; D. Cowan. Solicitors : for the appellant, Gasquet and Metcalfe ; for the respondents, G. Cordwell.]
HIGH COURT OF JUSTICE.-CHANCERY DIVISION. Equitable Mortgage-Priorities-Declaration of Trust of Legal Estate
Power to appoint new Trustees—Vesting Declaration-Subsequent legal Mortgage-Notice.--In 1894 G. deposited with his bank to secure an overdraft the title deeds of certain property, ending with a conveyance to himself of the 15th March 1883. These deeds showed a clear title in G. The memorandum of deposit contained a declaration by G. that he would, during the continuance of the security, stand possessed of all his estate and interest in the premises charged in trust for the bank, and would convey them as they should direct, and that it should be lawful for the bank to remove G. or any other person from being a trustee in respect of the trusts thereinbefore declared, and to appoint new trustees in respect of the trust premises, and thereupon to make a declaration vesting all the mortgagor's estate in the new trustees. In Jan. 1896 G. executed a legal mortgage of the same premises to A. for £1000, “subject to the deposit with the bank and to the memorandum accompanying the same." G. having been made bankrupt, the bank in March 1896 executed a deed, appointing their general managers trustees in the place of G. and A., and containing a declaration that the legal estate in the mortgaged premises should vest in the said managers. Held, that the declaration of trust in the memorandum was valid ; that A., having taken the legal estate with notice of that trust, was a trustee thereof ; and that the vesting declaration was effectual to pass to the new trustees the legal estate vested in A. as well as that in G. G. had, in fact, dealt with the property after 1883 by mortgaging the property, selling and repurchasing the equity of redemption, and afterwards paying off the mortgage. He had before 1894 deposited the reconveyance to himself of the equity of redemption with B. to secure £300, and on the occasion of the deposit with the bank had suppressed all the deeds after 1883. Held, that there was nothing in the circumstances under which the bank had acquired the legal estate to prevent their gaining priority by such acquisition, and they had priority over B.
(London and County Banking Company Limited v. Goddard. Ch. Div.: North, J. Feb. 16 and 17.-Counsel : Rawlins, Q.C. and Vaughan Hawkins; Swinfen Eady, Q.C. and Greenwood ; T. Ribton ; C. E. E. Jenkins; E. Clayton. Solicitors : S. Pilley; Howard and Shelton; Woodbridge and Son; Sole, Turner, and Knight; Ward,
Perks, and Mackay.] Limited Company-Debentures Floating Security - Action for Fore.
closure or Sale--Absence of one of the Debenture-holders—Order for Sale.-In 1891 the Continental Oxygen Company Limited borrowed £15,000 by the issue of 150 mortgage debentures of £100 each charged as a floating security upon property of the company consisting of certain foreign patents and shares in other oxygen companies. In March 1896 the plaintiff, on behalf of himself and all other holders of debentures," commenced this action against the company, who had made default in payment of the principal and interest due under the debentures, to enforce payment either by sale or foreclosure. In May 1896 judgment was delivered declaring the plaintiff entitled to a charge on the property, and directing the usual inquiries. In Nov. 1896 the chief clerk made his certificate, from which it appeared that debentures amounting to £200 were held by Madame Jovant, a French subject, residing in Paris, and that the property upon which the debentures were charged was of very little valae. On the 4th Feb. the action came on for further consideration, when the plaintiff, with the consent of all the debenture-holders except Madame Jovant, asked for an order of foreclosure. Madame Jovant, although she had received notice of the judgment, had not appeared or taken any steps in the matter. The company did not appear in the action. Held, that an order of foreclosure might be properly made with reference to such property as was charged by these debentures, but that in the absence of one of the debenture-holders the court could not make an order of foreclosure. An order for sale was therefore made under the direction of the judge in chambers, his Lordsbip intimating that, if reasonable proposals were made the effect of which would be to vest the property in the plaintiff and the debenture-holders acting with him, they would be sanctioned, hut refusing a suggestion that the plaintiffs should be taken as trustees for the debenture-holders.
[Re The Continental Oxygen Company Limited ; Elias v. The Continental Orygen Company Limited. Ch. Div.: Kekewich, J. Feb. 18.
Counsel : Percy Wheeler. Solicitor: William Sharp.] Settlement-Family Arrangement-Debts--Death of Settlor-Liability
By a resettlement of an estate by a father and son, the estate in 1867 was limited to the use of the father for life, with remainder to the use of trustees, upon trust with the concurrence of the father and the consent of the son during their joint lives, or of the survivor during his life, and after the death of the survivor at the discretion of the trustees, to sell the same and apply the proceeds, and also the rents and profits until sale, in payment in such order and in such manner as the trustees should, with the concurrence of the father during his life.
time, determine, of all debts owing by the father, and subject thereto to hold the unsold hereditaments to the uses of an indenture of even date, whereby the father and son were successive tenants for life with remainder to an infant grandson in tail. No notice of the deed was given to the creditors. After the death of the father part of the settled estate was sold with the consent of the son, and all the debts of the father were paid except one due to his sister, which was not brought to the notice of the trustees. In 1889 the trustees and the son, who was the legal personal representative of his father, conveyed the unsold hereditaments to the uses of the second indenture of 1867. The son died in 1890. Held, that the case fell within the principle of Synnot v. Simpson (5 H. L. Cas. 121), and not within that of Garrard v. Lord Lauderdale (2 Russ. & M. 451), and that the infant tenant in tail took the estate subject to the liability to make good the debt due to his great-aunt.
[Priestley v. Ellis. Ch. Div.: Kekewich, J. Feb. 9 and 10.Counsel: Renshaw, Q.C. and F. T. Procter; Warrington, Q.C. and Robertson-Macdonald; W. B. Heath. Solicitors : Ullithorne, Currey, and Currey, for J. Price, Roberts and Laurie, Llangefni; Robbins,
Billing, and Co., for C. Owen, Pwllheli ; Western and Sons. ] Settlement-Settlement of T. Estate-Will reciting erroneously that said
Settlement included B. Estate and directing said Estates to be settledSettlement accordingly-Successive Entries by Tenants for Life on said Estates by virtue of such Settlement-Estoppel.-J. D. was at the time of making his will and at his death entitled to considerable real estate including the T. and B. estates. He had several daughters and one son, who married in 1809, when the T. estate was settled upon certain uses nearly all of which failed by the death of the son in J. D.'s lifetime. By his will made in 1828 (when two daughters only survived), J. D. recited the said settlement and stated erroneously that it included the B. estate, and expressed a desire that the said estates should be settled upon the uses thereinafter declared, and the said estates passed to the trustees of the will. The testator died in 1837 and his two daughters became his coheiresses at law. By an indenture of 1842 a settlement was made for the purpose of effectuating the said will. It included both the T. and B. estates, which were settled on the daughters, and their issue, remainder to Sir J. F. for life, remainder to his sons in strict settlement, remainder to G. F. for life, remainder to his sons in strict settlement, remainders over. The daughters executed it, but Sir J. F. and G. F. did not. One daughter died in 1843, and the sister became sole heiress. She died in 1861 a spinster. Sir J. F. thereupon entered into possession of the said estates and died without issue in 1867, when Sir G. F. entered into possession of the same. He died without issue in 1894, and the property passed to the plaintiff. Sir G. F. had procured himself to be registered in the Land Registry as owner in feo of the B. estate, and by codicil devised this estate to the defendants. In an action claiming a declaration that the B. estate was effectually comprised in the settlement of 1812 and for rectification of the register, it was contended by the plaintiff that the defendants were estopped from denying the validity of such settlement. Held, that the doctrine of estoppel was applicable to the case, and that Sir G. F. and all persons claiming under him were precluded from denying that the settlement was effectual, and that accordingly the plaintiff was entitled to recover. Board v. Board (29 L. T. Rep. 459) applied.
[Dalton v. Fitzgerald. Ch. Div.: Stirling, J. Jan. 19, 20, 21, 22, 23, 26, 27, and Feb. 18.--Counsel : Hastings, Q.C. and J. T. Prior; Elton, Q.C., Buckley, Q.C., and T. H. Carson, Solicitors : H. P. Bell; Carlisle, Unna, Rider, and Heaton.]
QUEEN'S BENCH DIVISION. School Board- Election of Members of-Crosses placed by Voters against
Candidates' Names-Principle of counting Votes.-Special case stated for the opinion of the court, pursnant to the order of Hawkins, J., made under sect. 93, sub-sect. 7, of the Municipal Corporations Act 1882, in the matter of an election petition touching the election of members of the School Board for the United School District of Brighton and Preston on the 1st Oct. 1896. At the triennial election there were fifteen members to be elected, and there were eighteen candidates. The respondents (Beves, Stevens, and Roth), against whom the petition was presented, were elected, being the last three who were elected, and there were three others (Bartlett, Dodson, and Houghton) who were not elected. A petition was presented by the petitioners against the return of the respondents, alleging that mistakes had been made by the returning officer in the counting of the ballot papers and the votes recorded thereon; and that, by reason of such mistakes, the result of the poll was not accurately declared, and that the three unsuccessful candidates had a majority of valid votes at the election. The petition asked for a re-count. The questions raised in the case were ordered to be set out in the form of a special case to be stated by Mr. Cooke, of the Election Petitions Office, and that there should be an examinatior, and re-count of the votes before him. Such re-count took place, and Mr. Cooke reported the result for the opinion of the court. There were seven ballot papers not bearing the official mark, stamp, or perforation, containing fifty votes distributed among the parties to this petition. All these he disallowed in accordance with sect. 2 of the Ballot Act 1872. There were certain ballot papers on which the voters had marked a cross or crosses, and in these cases a difficulty arose as to the numerical value to be attached to such
(a) Five ballot papers were marked with & single cross opposite the name of a single candidate : (b) two papers with a single cross opposite the name of each of three candidates; (c) ten with a single cross against five candidates ; (d) eighteen with a single cross opposite the names of two, four, six,
seven, eight, nine, or ten candidates ; and (c) three with more than one cross and for more than one candidate. The returning officer counted each cross as fifteen votes where there was one cross against one candidate's name only; as five votes where there was one cross against three names only; as three votes where there was one cross against five names; and in the other cases he counted one cross as one vote. Mr. Cooke, acting on the dictum of Lord Coleridge, C.J. in Phillips v. Goff (17 Q. B. Div. at p. 815), " that a voter must be taken to vote up to the full extent of his voting power,” found, in so far as it was a question of fact for him to decide, that the voters intended by one cross opposite one name only to give fifteen votes; one cross against each of three names, five votes for each cross; and so on where the number of crosses was a measure of fifteen; but in cases where the number of crosses was not a measure of fifteen, then he rejected them altogether on the ground of uncertainty. The chief question now argued was as to whether one cross should be counted as one vote only under all circumstances, or as one or more votes according to circumstances. By an order made on the 1st Aug. 1895 by the Lords of the Committee of the Privy Council on Education, it was provided : (a) “Every voter shall be entitled to a number of votes equal to the number of members of the school board to be elected, and may give all such votes to one candidate, or may distribute them amongst the candidates as he may think fit;" (b) "the voter may place against the name of any candidate the number of votes he gives in lieu of a cross.” Cur. adv. vult. Held, that in counting the votes, the proper principle is to count “one vote for each cross ” and no more, and that this principle ought to be applied whether the voter gives one or more crosses to one or more candidates, one cross counting one vote in all cases where the ballot paper is valid.
[Morris and others (pets.) v. Beves and others (resps.). Q. B. Div.: Hawkins and Kennedy, JJ. Jan. 28 and Feb. 17.-Counsel : 8. H. Day; Corrie Grant and J. A. Johnston. Solicitors : Clarke and Calkin, for Geo. Cheesman, Brighton ; Prince and Co.]
tenance. It is submitted that the petition for maintenance should be dismissed. Dated this 28th day of Dec. 1896. (Signed) ROBERT A. PRITCHARD, Registrar.” The petitioner moved the court to vary the report of the registrar, and to direct the inquiry as to means to proceed on the merits; and the Court reversed the registrar upon the point of law, and ordered accordingly. Leave to appeal was, with some reluctance, given to the respondent, but only upon terms that, as a condition precedent to the bearing of the appeal, the costs of the petitioner up to date should be actually paid by the respondent, and further, that he should give security for the costs of the petitioner upon the appeal.
[Bishop v. Bishop. P. and D. Div.: the President (Sir F. H. Jeune). Jan. 25, 26, Feb. 1, 8, and 15.-Counsel : for the petitioner, Durley Grazebrook; for the respondent, Barnard. Solicitors : for the petitioner,
Edwin Smith and Ellis; for the respondent, E.J. H. Carter.] Divorce Practice-Permanent Maintenance-Full Inquiry as to Alimony
pending Suit - Respondent in Receipt of a Voluntary Allowance- Allotment of Maintenance thereout-Report of Registrar confirmed.-Where the respondent's only source of income was found to be a voluntary allowance from a relative, the registrar recommended an allotment of a portion of that allowance to be paid by the respondent to the petitioner by way of permanent maintenance, and the Court confirmed the registrar's report. Where a full inquiry into means has taken place in the soit, and alimony pendente lite has been thereupon ordered, the facts and figures 80 elicited constitute the basis for arriving at the proper amount to award upon the subsequent petition for permanent maintenance.
[Bonsor v. Bonsor. P. & D. Div.: the President (Sir F. H. Jeane). Jan. 25 and Feb. 1.-Counsel : for the petitioner, C. J. Willock; for the respondent, Barnard. Solicitors : for the petitioner, Lewis and Lewis ;
for the respondent, liarshall and Marshall.] Divorce Practice--- Undefended Nullity Suit-Pre-marital Incontinence
Incestuous Intercourse and Pregnancy consequent thereon-Fraudulent Concealment from Petitioner until after Marriage Summons by Petitioner for Directions as to Notice to Queen's Proctor-23 & 24 Vict. c. 144, s. 7–36 Vict. c. 31– Notice to be given to Queen's Proctor before setting down.---The husband petitioned for a decree of nullity, upon the ground that at, and prior to, the time when he went through the ceremony of marriage with the respondent (wire) sbe fraudulently concealed from him that she had been guilty of incestuous intercourse with her brother-in-law, and that she was shortly to be confined of a child, and the petition went on to allege that, within three weeks after the marriage ceremony, the respondent was, in fact, delivered of a child, as the result of her incestuous intercourse. The petitioner also alleged that, at the time he went through the ceremony of marriage, he was in complete ignorance of the respondent's condition, or of her incestaous intercourse with her brother-in-law, and that he was induced to become a party to the marriage by the fraud of the respondent in concealing from him these facts. The respondent filed no answer to the petition, and, before setting the cause down for hearing, the petitioner took ont a summons for directions as to the Queen's Proctor, with a view to baying the legal aspect of the case tbrasbed out and disposed of at the hearing. The President in chambers) directed that, as the case was undefended, the solicitors for the petitioner should give notice to the Queen's Proctor before setting the case down for bearing.
[M. v. M. (otherwise A.). P. & D. Div.: the President (Sir F. H. Jeune, in chambers). Feb. i. Counsel : Bargrave Deane, Q.C. Solicitors : Gedge, Kirby, and Millett.]
OUR LITERARY COLUMN.
PROBATE, DIVORCE, AND ADMIRALTY DIVISION.
PROBATE BUSINESS. Probate Practice Administration-Revocation of Grant-Subsequent
Order upon Administrator to file Account.-A grant of administration, which had been taken out by one of the next of kin of the deceased, as upon an intestacy, was subsequently revoked, and probate granted to one of the executors of a will which had recently come to light. Upon application by the execator for an account showing how the administrator had dealt with the estate, objection was taken, on behalf of the administrator, that the court had no jurisdiction, since the grant was revoked. Mr. Registrar Pritchard, before whom the summons was heard, thought the point a good one, and dismissed the application ; but, upon appeal to the judge in chambers, the registrar's decision was reversed, with costs, and the administrator was ordered to furnish to the executor, within fourteen days after probate should be exhibited to him, an account showing how he had dealt with the estate of the deceased. Taylor v. Newton (1 Lee, 15) followed.
[In the Goods of Thomas Jenkins, deceased. Barnes J. (in Chambers). Feb. 22.--Couprel : Priestley. Solicitors : Martyn and Martyn; Bell, Brodrick, and Gray.]
DIVORCE BUSINESS. Divorce-Petition for permanent Maintenance and an Allowance for
Child-Agreement in former Suit set up in Bar-Matrimonial Causes Act 1857 (20 $ 21 Vict. c. 85), 8. 32-Matrimonial Causes Act 1866 (29 & 30 Vict. c. 32), s. 1--- Registrar's Report-Bar-Motion-Report varied- Inquiry, as to Means, to proceed - Leave to appeal-Terms.The petitioner (wife) brought a former suit for dissolution of marriage against the respondent on the grounds of his alleged cruelty and adultery, but she withdrew that petition upon the terms hereinafter stated. The respondent was subsequently guilty of adultery, and also of statutory desertion, and, upon these grounds, the petitioner obtained a decree dissolving her marriage, and an order for the custody of the only child of the marriage. The respondent continued to pay the allow ince agreed upon, which was, in fact, the amount allotted by way of al mony pendente lite in the first suit. Upon petition for mainter ance, and for an allowance for the mainterance and education of the child the responde nt set up the agreement in the former suit as a bar, End Mr. Registrar Pritcbard so held, and reported to the court as follows: “On the 22nd day of December 1892 the petitioner filed a petition for dissolution of marriage by reason of the respondent's cruelty and adultery. On the 20th March 1894 the petition was in the list of causes for hearing, and shortly before the case was called the petitioner and respondent signed the following agreement: • The petitioner agrees to accept £130 per annum by way of permanent maintenance, this sum to include the maintenance of the child. The said allowance to be paid by Walter Harry Bishop, the respondent, by monthly payments during their joint lives. This payment to be made in any event, whether they remain married, or whether the marriage should hereafter be dissolved. Mrs. Edith Bishop, the petitioner, to have the custody of the child.' That petition was withdrawn, and oi the 17th day of July 1895 the petitioner file l another petition for dissolution of marriage by reason of the respondent's adultery an l desert on, and by a decree absolute, made by this honourable court, and tearing date the 8th day of June 1896, the marriage of the petit oner and respondent was dissolved. The petitioner asks for a further maintenance beyond that wbich is ftipulated for by the agrie nent, but it appears to me that, by the terms of the agreement, she is not entitled to any further main
STORIES FROM THE LAW REPORTS. XII.—THE STORY OF THE SECRET WEDDING OF A ROYAL PRINCE.
AT ROME. (From the Sussex Peerage Case, 11 Cl. & F. 86). The Reverend Mr. Gunn was a visitor in Rome; he was a learned scholar, antiquary, and historian ; he was sitting in his rooms late in the evening in March of the year 1793, poring over voluminous piles of notes which he had been making during the day. They were notes of the “ Stuart papers ”-papers of the most enthralling interest ; papers of a family which with all its faults remains at least one of the most interesting which the world has known-a family whose very portraits inspire the imagination, and induce the beholder to ask more about them-a family all of whose famous characters raise questions which lead men on to the highest bistorical zeal, as anyone who has tried to reconcile the good and bad in Mary Queen of Scots, or the Royal Martyr, or Prince Charles Edward, will at once acknowledge.
The Rev. Mr. Gunn was a gentleman of an imaginative turn of mind, but his brain was no less industrious and energetic than it was poetical and romantic. He had come to Rome on purpose to investigate these papers about mysteries of the past; they formed a medley of stories of kings and princes, beautiful women, gallant soldiers, unknown politicians, and strange conspirators ; such a stady, in short, as might well captivate a mind like his, and lead him on further and further into the regions of research.
It was getting near the time for casting work aside and seeking the repose of night. Mr. Gunn therefore soon laid aside his papers, and, taking up bis pipe, began to meditate upon what he bad been reading. How the days of adventure, in which his soul delighted, seemed to have passed away for ever. How business and things of a commonplace order
appeared to have succeeded to the days upon which his fancy longed to dwell. How uneventful were the lives of most Englishmen at home and abroad compared with those of the stirring times gone by. What were the duties of a citizen now, if one thought of the opportunities for prowess of the old knights-errant, and of the fair women and brave men who loved to jeopardise their lives in days gone by, like Flora Macdonald, for the prince they loved ?
“Someone to see you, sir,” said the servant, breaking in upon his medi. tations at this point.
And the clergyman, bidding her show the “ someone in, politely rose from his chair, and fell a wondering what store his temporary side-board held, from which he might offer his visito: hospitality. He had only a few friends in Rome he thought, whom he knew well enough to justify their intruding upon him at this hour-friends chiefly of the student class, who had come to Rome like himself to learn at that great treasure-house of scholars' lore of every description.
But it was none of these ; it was a strange gentleman, quietly but richly dressed, whose face, although that of a very young man, was of a solemn and anxious appearance, and who entered with some degree of hesitation.
“Come in, sir," said the parson, “whoever you may be. What is your business with me at this hour? In what can I be of service to you?”
The door was not yet shut; but upon the gentleman remarking in a low voice, “Pray, sir, let us be alone,” the Rev. Mr. Gunn bade the servant close the door, saying that he should want nothing more that night.
The clergyman drew the decanter from its shelf and placed it upon the table.
“I will tell you my business now," said the visitor. “It is upon no light matter that I am come to you. To begin with, I will tell you who and what I am. My name is Prince Augustus Frederick, and I am the sixth son of King George the Third.”
"In what can I serve your Royal Highness ? said the clergyman, standing up, and raising the decanter to pour out a glass of wine for his distinguished guest.
“No sherry, thank you," said the other, " and pray sit down while I tell you my business, which is of the most urgent character. I have been so fortunate as to gain the affections of a beautiful and accomplished lady. Her name is the Lady Augusta Murray. She is the second daughter of the Earl and Countess of Dunmore. We are both desirous of being married here in Rome, and with the least possible delay. Will you do us the favour of performing the ceremony ?”
The clergyman again rose from his seat, and stood a moment regarding the Prince, mute with astonishment. The Prince, with no little appearance of anxiety and apprebension, awaited his reply.
At last be spoke. “Here ?” he said ; "at Rome ?-and in a hurry? I fear that I am obliged to tell your Royal Highness that there will be grave difficulties in carrying this out. In the first place, we are at Rome, and Rome is the capital of the Papal power. The marriage which you ask me to solemnise is one which, I fear, the laws of this country will not recognise. And that is not the only difficulty. Your Royal Highness is aware that the marriage of a prince of the blood Royal is not an affair which can be carrie out unceremoniously and without due compliance with the regulations of the Royal Household."
“God knows," replied he, " that I am but too well aware of the difficulties of wbich you speak, and I could hardly hope that an ecclesiastic of your great learning should not also be aware of them. But I put it to you that, as a clergyman of the Church, your highest duties point in the direction of your doing the service which I ask of you, and for whicb, of course, I am prepared to pay high fees. Why should a prince of the blood Royal not marry the lady to whom he has given his heart, and who has bestowed her affections upon him, as any other man might do? What right has the State to interfere with such a matter, and to drive the unfortunate beings of a particular lineage into sin ?--for does not your reason tell you that sin is the natural result of such a law ? Princes are human, and, if they may not marry, a man of sense must know whither the Devil drags tbem.”
“Heaven forbid," replied Mr. Gann, " that any such result should follow in your case. Your Royal Highness is a Christian gentleman, and that should be enough to make the mere thought of such a thing impossible. You will have my prayers."
“I thank you for your prayers, sir,” said the Prince, “but flesh and blood are flesh and blood. I say the State has no right to bind me in this matter, which is my own private concern. Give me your prayers, sir, but give me also, I pray you, your offices as a clergyman in this matter. You represent my Church, and I ask my Church, through you, her representative, to enable me to enter the holy estate which no regulation of the Church at least denies to me."
s Bat your Royal Highness must see,” the clergyman made answer, "that I, and your Royal Highness also, for the matter of that, are subjects of your Royal father, and must obey his laws. Now, although I am not so learned as your Royal Higbness is good enough to say that I am, I am yet learned enongh to know that princes of the blood Royal--descendants of His late Majesty King George the Second, are restrained by the Royal Marriage Act, from marrying without the King's consent, which must be signified under the Great Seal and declared in Council ? Can your Royal Highness procure me that consent ?"
"No," said the Prince, “I cannot. But I claim that the Royal Marriage Act, an English enactment relating to England, cannot affect me here. We are beyond the limits of the jurisdiction of the English Parliament; here in Rome you may serve me and fulfil the offices of your ministry without conflicting in any way with the duties of an English citizen.”
"I fear that I am bound to think otherwise,” said Mr. Gunn.
The Prince bowed, and left the room.
The Rev. Mr. Gunn had no longer any inclination for sleep. The interview which had just occurred had been a very remarkable one. It was certainly something quite out of the common order of an English clergyman's experiences.
He felt very sorry for the Prince, whose face as he went away wore a sad and troubled expression which it would not be easy to forget. And, indeed, thought Mr. Gunn, it was hard on the Prince and the Lady Augusta that they should be debarred by an accident of birth from a right which was common to the generality of mankind. Yet the law was the law, he was bound to respect it.
He did not, however, sleep well that night. The Stuart papers fell into the background of his brain, and the Prince's request seemed to absorb most of his thoughts.
During the course of the next day a small packet, sealed with a coronet, was brought to his house with Mr. Gunn's name inscribed upon the outside in a lady's handwriting. He broke the seal, and read within these few words only: “ By your sacred office, I beseech you to do what is asked of you.-A. M.”
Who was A. M.? Why, of course, it was the proposed bride of the young Prince! And she was joining her supplications to his.
Mr. Gunn was in a state of much perplexity. He would like to do this thing, which he had been so earnestly desired to do, if it were anyway possible. Had he not been longing for a romantic adventure such as the old Stuarts and their followers used to have? Had he not complained in his reflections that the days were gone by when men could dare danger for the sake of a fair lady-(and he knew that the Lady Augusta was very fair, for he happened to have seen her lately at a festival in Rome, and had heard her name) -and when a man had from time to time the opportunity of dying for the Prince of his affections. Here he had the chance of doing a deed such as he had longed to do in the hours of reading romances, and he had refused it unreservedly !
He wrote home to his son, “Send me a copy of the statutes of the twelfth year of King George the Third, but mention this to nobody. Your silence may be important.”
The book arrived in due course, and Mr. Gunn turned to the Royal Marriage Act 1772, to consider its exact effect. It was a short enactment. It provided that no descendant of his late Majesty King George the Second (other than the issae of princesses married or who may marry into foreign families) should be capable of contracting matrimony without the previous consent of bis Majesty signified under the Great Seal, declared in Council, and entered in the Privy Council books. But it also stated that, in
any descendant of King George the Second being above twenty-five years old, should persist to contract a marriage disapproved of by His Majesty, such descendant, after giving twelve months notice to the Privy Council, might contract such marriage, and the same might be duly solemnised without the previous consent of His Majesty, and should be good except both Houses of Parliament should declare their disapprobation thereof. Mr. Gunn considered these first two provisions, and wondered whether it would be possible to induce the Prince to wait till he was twenty-five years of age and then boldly give notice to the King that he would marry the lady of his choice in spite of his disapprobation.
Mr. Gann now passed on to the third and last section of the Act, which said :-“And be it enacted that every person who shall knowingly or wilfully presume to solemnise or to assist or to be present at the celebration of any marriage with any such descendant or at his or her making any matrimonial contract, without such consent as aforesaid first bad and obtained, except in the case above-mentioned, shall, being duly convicted thereof, incur and suffer the pains and penalties ordained and provided by the statute of provision and premunire made in the sixteenth year of the reign of Richard the Second."
What these pains and penalties might be Mr. Gunn bad not the slightest idea, but he was beginning to come to the conclusion that he was prepared to run the risk of incurring and suffering them if there should prove to be indeed no other way of satisfying the Prince.
The Prince had spoken on several occasions to Mr. Gunn since their first meeting, for he had by no means given up all hope of his consent. He had seen many signs of his relenting since Lady Augusta Murray's note!
The next day the Prince called again, and renewed his importunities. The clergyman produced the copy of the Act which he had received from England, and suggested that the Prince should wait till he should be twenty-five years of age and should give the twelve months notice, which would enable him to marry even without the King's consent.
“I cannot do it," said he. I cannot wait so long-first waiting to be twenty-five, and then till the year's notice has expired. And besides, remember that there is always the danger of Parliament declaring its disapprobation, and then all my patience would have been of no avail
. No, sir, I beg you to marry me in Rome this week. It is an ill thing, I can tell you, for a Prince, when the Church forbids him to marry.”
The Prince paused and looked at the last section of the Act. “Is it this last portion of the Act that frightens you ?” he asked.
" Are you in fear of the pains and penalties threatened ? You shall be richly paid for any risk you run.'
“No," said Mr. Gunn," it is not that. Since I have seen Lady Augusta's face, I have always felt that I am more than willing to sacrifice my personal safety to carry out this much-wished-for marriage. No, my doubt is whether I should be right in doing it ?”
My good sir, it must be right. What have I done that the Church should deny me the rights which belong equally to all her children?
“ Besides,” continued Mr. Gunn,“ there is the other question. We are in Rome; and I believe that the only marriage valid by the law of this country is that in which a Roman Catholic priest officiates."
“I tell you,” said the Prince, “ that I am not to be overruled in this. With all the strength of my will I desire this marriage. If I am once married safely in Rome, I believe that the King will make the best of it, and that I can easily arrange to have the marriage recognised in England. But all must be done as speedily as possible ; and I intreat you to help an unhappy prince and the beautiful lady who is your suppliant.”
The clergyman at last gave in. “When and where is it to be ?” said he.
“The Lady Augusta Murray will let you know," said the Prince.
And a few hours afterwards Mr. Gunn received another of that lady's dainty little packets containing the words : “At my mother's—Lady Dummore's house—in the English quarter of Rome, April the 4th, seven o'clock at night.”
Mr. Gunn accordingly sent word that he would come at the hour named to the house of the Countess of Dunmore.
At seven o'clock in the evening on the 4th April 1793 the marriage took place. It was celebrated by Mr. Gunn in a form as nearly as could be according to the rites of the Church of England, an English Prayer-book being used upon the occasion; and it was contracted and attested by two papers signed by his Royal Highness and by the Lady Augusta. The exact words of those papers have been preserved, and we give them here :
“As this paper is to contain the mutual promise of marriage between Augustus Frederick and Augusta Murray, our mutual names must be put here by us both, and kept in my possession. It is a promise neither of us can break, and is made before God, our Creator and All-merciful Father.
“ On my knees before God, our Creator, I Augustus Frederick, promise thee, Augusta Murray, and swear upon the Bible, as I hope for salvation in the world to come, that I take thee, Augusta Murray, for my wife ; for better for worse ; for richer for poorer ; in sickness and in health ; to love and to cherish till death us do part; to love but thee only and none other; and may God forget me if I ever forget thee. The Lord's name be praised! So bless me! So bless us, O God! And with my handwriting do I, Augustus Frederick, this sign, March the 21st, 1793, at Rome, and put my seal to it and my name. (L.S.) “ AUGUSTUS FREDERICK.”
Completed at Rome, April 4th 1793. “On my knees before God, my Creator, I, Augusta Murray, promise and swear upon the Bible, as I hope for salvation in the world to come, to take thee, Augustus Frederick, for my husband; for better for worse ; for richer for poorer; in sickness and in health ; to love and to cherish till death us do part. So bless my God and sign this. AUGUSTA MURRAY."
There were duplicates of these papers, and in the first of them the words Married April 4th, 1793; Rome 7 o'clock at night” were iutroduced in the place of the words “Completed at Rome April 4th, 1793."
This wedding was in no church, but simply in the Countess of Dunmore's house, whither the bridegroom had quietly conducted the clergyman.
There was no company present-not even the bride's mother, the Countess of Dunmore herself, in whose house the ceremony took place, was there. The parties had purposely arranged to have the wedding at a time when they knew that she would be away. They desired quiet and secrecy. But the ceremony was as solemn, for all that, as Mr. Gunn could make it. Though there were none of the usual accompaniments of the marriage service, there was everything which seemed essential—the ring and the words of the Prayer-book pronounced by an English clergyman, and, whatever the King and Parliament at home might say, it appeared that Holy Church had given her sanction to the solemnisation of their matrimony. The parties themselves, in spite of all that subsequently happened, certainly believed themselves to be duly married ; and it was not until years after they had both been dead that the real invalidity of the marriage was brought home practically to innocent sufferers. For whatever the parties, whatever the Church might say, whatever the law of Rome might be, this marriage was no marriage by the law of England.
The Prince gave the clergyman a handsome fee, and a year later, when he had returned to England and was busy arranging at home the results of his inquiries as to the Stuart papers and disentangling their romantic stories, he was startled for a moment from his work by a letter from the Prince Augustus Frederick which recalled to his mind his own one romantic adventure and which gave him news of the arrival of the firstborn son with whom the “Princess ” it was stated had just presented the Prince.
Mr. Gunn called his son, who was then quite a young man, into the room. “My boy,” said he, “I have one extraordinary secret, which I think you ought to hear. Look at that!" Young Gunn did so, and was astonished at the signature. “Why, father,” he said, "you are a scholar and a clergyman, and not a courtier. How comes the Prince to write to tell you of the birth of his first-born son?”
" Thereby hangs a tale, my son,” said he. “I may have been foolish, I may have been wrong, but for better for worse I married the Prince to the mother of his first-born son. I married them in Rome. I am not sure exactly what penalty I have incurred by doing so, but I greatly fear that what I have done is a criminal offence. I feared that my refusal might lead to a worse sin. I hope that it is the last that I may hear of it." And he told his son the whole story.
“There is one comfort," said the son, who was rather appalled at the narrative of the jeopardy in which his father had placed himself. There is one comfort, which is that no one but the Prince and Princess themselves seem to know what you have done. I hope, indeed, that we may never hear any more of the episode."
But they did hear more of it. The Prince and Princess were married again in London at St. George's, Hanover-square; they were resolved to do everything which they could do to make the marriage a good one.
But King George III. heard of it, and, so far was he from “making the
best of it,” as the Prince had sanguinely foretold, that he determined that the marriage should not be recognised, wishing the Prince, perhaps, to marry a nominee of his own. He therefore instituted legal proceedings.
The suit was brought by letters of request from the judge of the Consistory Court of London, in virtue of which Heseltine, the King's Proctor, prayed a citation, on the 20th Jan. 1794, against the Lady Augusta Murray, in a cause of nullity of marriage.
An appearance having been givea for the party cited, a libel was afterwards brought in and admitted, pleading the statute of 12 Geo. 3, c. 11 (the Royal Marriage Act 1772), and pleading the birth and descent of Prince Augustus Frederick (who had since become the Duke of Sussex), and that no Royal consent had been given to his marriage, and further pleading that on the 4th April 1793 Prince Augustus Frederick, being under twenty-one years of age, a marriage, or rather a show or effigy of marriage, was, in fact, bad or solemnised, or pretended to be so had or solemnised, in the house of Lady Dunmore at Rome (but by whom the party proponent was unable to set forth) between the Prince and Lady Augusta, that they shortly after came to England, and on the 4th Dec. 1793 were married by banns in the parish church of St. George's, Hanoversquare, and that both the marriages were void, for want of the Royal consent, by virtue of the statute aforesaid.
Two exhibits were pleaded. The first was an extract from the baptismal register, and the second was an extract from the marriage register of St. George's, Hanover-square.
The law of Rome, or the validity or invalidity the marriage, by that law was in no manner whatever pleaded in the cause. The libel was settled by the great Lord Stowell.
The Lady Augusta's proctor declared that he confessed the statute 12 Geo. 3 to be a public Act, and also confessed the two marriages pleaded in the libel, but otherwise he contested the suit negatively.
There was no direct proof of the marriage at Rome. Neither King's proctor nor the Lady Augusta's proctor applied to Mr. Gunn upon the matter, perhaps because both knew that it would be of no use to question the reverend gentleman regarding his share in the affair. At any rate, upon another occasion, when there were proceedings in Chancery relating to the same subject, Mr. Gunn was called as a witness. Questions were put to him upon that occasion, but he demurred to them upon the ground that if he answered them he might subject himself to the penalties prescribed by the Royal Marriage Act. For no man can be bound by English law to answer questions tending to criminate bimself.
Lady Dunmore, however, in the present proceedings, deposed that she believed (because she was so assured by her daughter, the Lady Augusta, and also by a letter from the Prince) that they were married in her (Lady Dunmore's) house by a clergyman of the Church of England in full orders.
Here is an extract from the interlocutory, pronounced by Sir William Wynne, Dean of the Arches, on the 14th July 1794. “And the judge did also pronounce, decree, and declare, that in respect to the fact of marriage, or rather show, or effigy, of marriage, pleaded in the said libel to have been had or solemnised, or pretended to be had or solemnised, at the house of the Right Hon. Charlotte Countess of Dunmore, in the city of Rome, on the 4th day of April 1793, there is not sufficient proof by witnesses that any such fact of marriage, or rather show or effigy of marriage, was in any manner had or solemnised, at the said city of Rome, between his said Royal Highness Prince Augustus Frederick and the Right Hon. Lady Augusta Murray, spinster, the party cited in the cause ; but that if any such marriage, or rather show or effigy of marriage, was in fact had or solemnised, at the said city of Rome, between the said parties, the said pretended marriage was, and is, absolutely null and void to all intents and purposes in law, whatsoever."
The Prince Augustus Frederick, however, afterwards made a solemn declaration that in spite of the decree he still considered himself bound, and he and the Lady Augusta lived as man and wife to the end of their days.
Many years later, when the Rev. Mr. Gunn had long been dead-it was in the year 1843–Mr. Gunn the younger was summoned to give evidence before the Privy Council, who had before them the petition of Augustus Frederick d'Este, claiming the honours, dignities, and privileges of Duke of Sussex, Earl of Inverness and Baron of Arklow.
“What testimony can I give ?” said Mr. Gunn the younger to the solicitor's clerk who called upon him. “I know nothing of my own knowledge as to the Prince's Roman marriage. I know what my old father told me, of course. But that is merely hearsay. You as a lawyer know, even better than I do, that hearsay evidence is not admissible at law. Hearsay evidence is worthless, and I can give you no evidence other than hearsay. What is the use of troubling me to attend?"
“ There is an exception,” said the solicitor's clerk, “to the law excluding hearsay evidence. Hearsay evidence may be given of a declaration which, at the time when it was made, was against the interest of him who made it. It was against the interest of the late Mr. Gunn to make the declaration, which we believe that he did make to you, at the time when he made it. For, by the 3rd section of the Royal Marriage Act it was provided
“Oh! I know well enough what was provided by that section," replied the other. “I was in terror of it all my father's life, and so was he. But now that he is dead, it can do no harm to disclose the whole truth. I have no objection to be a witness ; I will come if you desire it.”
“ Thank you, sir," said the clerk; and, having informed Mr. Gann, the younger, of the time and place appointed for the hearing of the petition, he withdrew.
At the hearing of the petition the old papers which had been signed in such solemn form by the late Prince Augustus Frederick and the Lady Augusta were produced by their son, who was now claiming the peerage. He also produced the little prayer-book, which had been treasured up by
OUR AMERICAN LETTER.
his mother as a precious token of the marriage which she believed to be a true marriage. The prayer-book was mildewed and stained, but on its fly-leaf you could clearly read the words which had been penned by the young bride, probably on that eventful evening of her life.
The entry ran thus ; “The prayer-book by which I was married at Rome to Prince Augustus Frederick, on the 4th day of April 1793, by the Rev. Mr. Mr. Gunn's name was left in blank, and the entry itself was undated.
The Lord Chancellor said that the entry in the old prayer-book was admissible in evidence as a declaration by one of the parties that there was a marriage, though not admissible to prove the marriage itself.
Then the declarations of the late Mr. Gunn, made to his son with respect to the marriage, were proposed to be proved in evidence by his son. For he had often told his son the whole story, from the first visit of the Prince late at night to his rooms in Rome, when he was studying the Stuart papers, to the solemn scene at Lady Dunmore's house on the 4th April 1793—the scene which was of such precious moment then to the young couple, and now so important to their heir. It was argued that these declarations ought to be received on the ground that they were the declarations of an individual who knew the facts, who was not interested in misrepresenting them, who had an interest in being silent respecting them, and whose statements, he being dead, were therefore admissible in evidence.
The Court said that the evidence could not be received. “The rule," said Lord Brougham, “as understood now, is that the declarations of deceased persons are receivable in evidence when made against the proprietary or pecuniary interests of the party making them, when the subjectmatter of such declarations is within the peculiar knowledge of the party so making them.”
Yet it was not the exclusion of this evidence which proved fatal to the petitioner's claim. For Lord Lyndhurst, the Lord Chancellor, said: “I do not entertain the slightest doubt of the sufficiency of the evidence to establish the marriage as a marriage in fact. By a 'marriage in fact’I mean that I think the evidence is sufficient to show that these parties were married at Rome by a clergyman of the Church of England, in conformity with the rites and ceremonies of the English Church.'
But, for all those rites and ceremonies, for all Mr. Gunn's endeavours to make the Prince and his lady-love man and wife, for all the solemn declarations of the Prince and his lady-love themselves, it was no valid marriage by the law of England, for the Royal Marriage Act 1772 spoke in plain words, and the Court held that it extended to prohibit the contracting of marriages, or to annul any already contracted, in violation of its provisions, whether the same might be contracted or solemnised either within the realm of England or without.
“My Lords,” said Lord Cottenham, “I think it right to say that my opinion is formed entirely and exclusively upon the Royal Marriage Act. It is only that part of the case which has been concluded, and that is the only part upon which we can properly express an opinion. I entirely agree in the opinion which has been expressed by the learned judges, inasmuch as by the construction of the Royal Marriage Act, whether the marriage would be valid by the law of Rome or not, it would not be valid by the law of this country My opinion, therefore, is against the claim."
It was then resolved that the claimant had not made out his claim to be Duke of Sussex..
The Reverend Mr. Gunn had warned the Prince and the Lady Augusta that the law of England would not recognise their marriage as a valid one. They had insisted upon being married in despite of his warning. They had lived happily themselves, for in their own eyes they were man and wife, and were satisfied with their wedding by an English clergyman. It was their posterity that suffered.
Legal Proposition.-Although one of the exceptions to the law against admitting hearsay evidence is an exception in favour of admitting the declarations of a deceased person, when such declarations were at the time when they were made against the proprietary or pecuniary interest of that person, yet this rule is not to be extended to declarations made against the deceased's interest other than proprietary or pecuniary interest. The declarations, therefore, made by a deceased person, to the effect that he had done an act which he conceived to be and which was a criminal offence, are not receivable in evidence as the declarations of a deceased party made against his own interest, such interest not being an interest of a proprietary or pecuniary nature. The law does not recognise the apprehension of possible danger of a prosecution as creating an interest, which can bring these declarations within the rule in favour of their admissibility in evidence, upon the ground of their being declarations made against the interest of the party making them. See Higham v. Ridgeway (10 East, 109, and 10 R. R. 235), which states the principle rule as to declarations against interest; and cf. the notes thereon in Smith's Leading Cases, 10th edit., vol. ii., pp. 327-342. Refer, also, to Best on Evidence, 8th edit., pp. 440 and 441.
New York, Jan. 30. A DECISION recently rendered by the Court of Appeals of New York may not bring to an end the long litigation over the will of Daniel B. Fairweather, but it settles many of the disputed questions which have arisen in that remarkable case. Mr. Fairweather, who died over six years ago, left an estate of over 5,000,000 dollars, which has since been largely increased by interest and other additions. Mr. Fairweather left a wife and three nieces, but had no children or descendants. He gave to his wife the dwelling-house in which they had lived, a small sam of money, and a life annuity of 15,000 dollars. He made bequests aggregating a few handred thousand dollars to his nieces and to some hospitals. About half of his remaining fortune was given to twenty colleges, in sums ranging from 300,000 to 50,000 doll By the will which he originally made several years before his death, the residue of his estate was given to his executors to convert into cash, and divide the amount equally between the colleges to which he had already made large bequests. The laws of New York State forbid a testator having a wife, child, or parent to give more than one-half of his estate to charitable, benevolent, or literary institutions. A few months after signing the original will, Mr. Fairweather revoked the residuary clause, and by a codicil gave the residuary estate to two of his friends absolutely. Later he made other codicils, which did not change the disposition of the residuary estate. He also wrote memoranda, which were given to one of the persons named as trustees, in which suggestions were made as to some of the colleges mentioned in the will. A few weeks before Mr. Fairweather's death, and after he was stricken with a fatal illness, a third friend of Mr. Fairweather began to take an active interest in the disposition to be made of the estate, and finding out that the residuary estate had been given absolutely to two men, he had many interviews with Mr. Fairweather, which resulted in the addition of his name to those of the two other friends named as residuary legatees. The last codicil was executed only a few hours before Mr. Fairweather's death. During the six years which have followed, there has been almost constant litigation over the estate. The persons named as residuary legatees, a few months after Mr. Fairweather's death, executed a deed of gift by which they distributed the large residuary estate principally among colleges and hospitals, some of which were named in the will, and others which had not been mentioned in that document. They also made addi. tions to the bequests made to the widow and nieces of Mr. Fairweather. A contest was begun by the next of kin of Mr. Fairweather, but after further addition had been made to the amount set apart for the widow and nieces, releases were made by all of them, and that phase of the contest was ended. Subsequently an action was brought by some of the twenty colleges to which bequests were made in the will and which had not received large additional amounts by the deed of gift executed by the residuary legatees, to compel the distribution of the residuary estate, not in accordance with the deed of gift, but in accordance with the residuary clause of the original will, by which each of the colleges mentioned in the preceding paragraph was to receive an equal share of the residuary estate. This action has just been successfully brought to a conclusion. The Courts, including the Court of Appeals, have held that there was a promise or understanding that the persons named as residuary legatees should distribute the money, in accordance with the residuary clause of the will, giving an equal share to each of the twenty colleges mentioned in the will. As the widow had released all her rights, she could no longer claim the benefit of the statute prohibiting the giving away of more than one half of his estate, by the will, for charitable purposes. The amount of the estate is so large that the interest on the amount invested has thus far more than paid the expense of the litigation, so that there is still a large sum to be distributed. Mrs. Fairweather has died since her husband's death, but an effort to set aside the release given by her and others is still carried on, and the end of the “Fairweather case” has not yet been reached.
The matter of divorces granted in a loose fashion in some of the Western States and territories is again under discussion by lawyers because of some recent decisions by the courts. A New York Supreme Court justice recently granted to a divorced husband the custody of his young child because the divorce had been obtained in North Dakota by the wife who went there for that purpose, remained only the ninety days necessary to establish a residence, did not serve the husband with papers within the State, and almost immediately after obtaining the decree of divorce married another man. Justice Russell held that the wife could not acquire a foreign residence for the express purpose of freeing herself from the marriage obligation, and, where jurisdiction had not been obtained by personal service upon the defendant or by his voluntary appearance, the decree was invalid. The woman, he held, was still the lawful wife of the plaintiff at the time she went through the form of marriage with another man after the decree had been obtained. therefore, refused to surrender to her her own child by the husband from whom she had sought to obtain a divorce. In the case of a prominent citizen of New Jersey, another complication has resulted because, after he obtained his divorce in a Western State and had married another woman, the Court by which the decree was granted revoked it because the costs of the action had not been paid. The man now declares that he will abandon the woman whom he last married, and will return to his first wife, from whom no decree of divorce now stands upon the record. The Supreme Court of Alabama, in the case of Mickle v. State (21 South. Rep. 66), has just rebuked a somewhat similar action by a divorce court in that State. The decree of divorce was granted, containing at the close this clause : “ This decree is, however, suspended until the costs are paid (except so far as to issue execution for costs), and then to be in full force and effect.” The Supreme Court held that the suspension or attempted
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