PARNELL v. PARNELL.-p. 169. Committee of a lunatic competent to institute a suit of divorce, by reason of the adultery of the wife, on behalf of the lunatic. DAYS, falsely called JARVIS, v. JARVIS.-p. 172. Nullity of marriage by licence, by reason of minority and want of consent [of the parent,] sustained. EWING, falsely called WHEATLEY, v. WHEATLEY.—p. 175. Nullity of marriage, by reason of fraud and alteration of licence, not sustained. SEARLE v. PRICE, falsely called SEARLE.—p. 187. Suit of nullity of marriage, by reason of a former marriage, sustained.-Strict proof required of the identity of the parties. THIS was a suit instituted by Edward Blakemore Searle, of the parish of St. Peter, Cornhill, against Sarah, his wife, to annul his marriage with her, on the ground of a former marriage, alleged to have taken place between her and one Charles Price, who was living at the time of the latter marriage. On the part of Mrs. Searle, Dr. Burnaby and Dr. Jenner contended, that there was not sufficient proof(a) to identify the parties to the second marriage, as being the actual parties in the present cause; that the mere belief of that fact, expressed by two witnesses present at the latter marriage, undeduced from any fact stated by them to warrant such a belief, was insufficient; that the admissions or acknowledgments of the party herself could not, even if more consistent with each other than they actually were, be admitted to supply that deficiency, or furnish, in any way, grounds for a sentence in a case of this nature. On the other side, Dr. Stoddart and Dr. Lushington submitted (a) On the opening of the case, the counsel for Mrs. Searle took an objection to the reading of the evidence of Price, the alleged first husband, on the ground that it was a received principle of law, that a husband and wife cannot be witnesses either for or against each other; a principle resting on the consideration, that their evidence, if in each other's favour, was open to the presumption of an undue bias, and if of an adverse character, might lead to dissentions in families, which it was the policy of the law to discourage and repress. To this it was replied, that it was not competent to the wife to take this objection, or she would thereby admit the principal fact in question, and convict herself of an act of bigamy; and that as to the evidence of the husband, it would not tend to affect any interest under his relation to his wife, or to exonerate himself from any responsibility, but rather to onerate himself with the obligations attending the character of husband. The Court permitted the evidence to be read, de bene esse, reserving the point for more formal argument, in the event of the case appearing to depend, in any material degree, upon the evidence objected to. that the belief of identity, expressed by the two witnesses to the second marriage, was sufficiently supported by the nature of the confrontation; that the party was cited to be confronted as the party in the cause; that she appeared, in obedience to the mandate of the Court, in that character, and the general conduct of the suit in her name, and on her behalf, confirmed the fact. If, however, the Court should still hesitate on this point, they hoped it would, for its own satisfaction, extend to them the indulgence of rescinding the conclusion of the cause, to enable them to confront the party with other witnesses, in support of the identity. JUDGMENT. Sir WILLIAM SCOTT. In this case it is sufficiently established, that a Charles Price was married, on the 20th of December 1783, to a Sarah Pollard, and that a Sarah Price was married on the 28th of February 1811, to Edward Blakemore Searle, at which time the Charles Price, first married, was living. The only question therefore is, whether the Sarah Pollard, who was married to Price, is the Sarah Price who was married to Searle; whether, in fact, the identity, as to the second marriage, is proved in a way satisfactory to the Court. In all cases where a dissolution of marriage is the object of the suit, it is the especial duty of the Court, to guard against imposition: where an existing marriage is proved, it is not to be exposed to the danger of being set aside by any species of collusion; and should only be brought into question upon the most undisputed proofs. It greatly concerns the interests of families, that the marriage contract should be preserved inviolate. Experience of the world plainly shows, that married persons are often but too ready to seek a release from the nuptial chain, and too little scrupulous of the means of effecting it. For this purpose a false case might be established before the Court, whose utmost vigilance is therefore requisite, that the truth should be established, independent of the confessions of the parties. In cases of adultery, no confession of the fact can be admitted alone, and, in cases of this description, it is the more necessary to guard against the imposition of making false acknowledgments to obtain a separation. A married person may afterwards wish the marriage avoided; for this purpose a former marriage might be propounded by the one party and admitted by the other; but the Court could not rely on declarations thus made, and that too not on oath, in furtherance of the common purpose. They might go further; by substituting false parties, who might admit themselves to be parties in the cause, when they were not, and various impositions of this nature might be resorted to, to destroy the rights of the real parties. Even a decree of confrontation would not protect the Court in such a case, as the real parties might be unknown to the officers of the Court, unknown to the practisers, and certainly unknown to the Court itself; so that, in this way, a real marriage might be set aside, without the least knowledge on the part of those interested in it. It is, therefore, a clear rule, and a rule, founded on the necessity of the case, that the identity must be proved, by other testimony than that of the parties themselves; it must be proved by witnesses, who can speak to the facts from their own personal knowledge. What could have been more easy in the present case, than for a person to have appeared to the decree of confrontation, and have acknowledged herself the party in the cause? It is therefore necessary, that the party should be produced to witnesses, who have known her in both characters, or to one witness, at least, who may have known her in each; why this was not done in the present case is a circumstance, perhaps, not easily explained, however much it may be lamented, on account of the inconvenience that has been occasioned by it. The Court cannot but remark, that the result of the evidence on the present case, compared with the principles that it has thus briefly laid down, appears liable to much objection. Mr. Phippen, the witness to the second marriage, speaks only to his belief of the identity; on what he grounds such a belief does not appear, as he states no antecedent facts within his knowledge, from which the Court can judge of its accuracy. On the decree of confrontation, the evidence adduced is that of two witnesses, who knew the party as Mrs. Price, and who prove, that she then acknowledged herself to be the party in the cause; so that this part of the case rests only on that acknowledgment, and that is insufficient. A decree of confrontation is an assistance to the proof, only to be applied for on special grounds, and yet this is all that has been done upon it in the present case. The other evidence, that of the admissions of the party in conversation, resolves itself into the same point, as, if the Court relies on that, it will pronounce a sentence upon the mere confession of parties. Under these circumstances, it is impossible that the Court can come to the conclusion, that there is sufficient evidence to satisfy the strict demands of the law, in a case like the present. If any case, however, can be produced where a party, after having had the benefit of one degree of confrontation, has afterwards received the indulgence of another, (of the existence of which the Court much doubts,) it will yield, though not without reluctance, to the application now made. If, however, no such case can be produced by the next Court day, it will then pronounce for a failure of proof, and dismiss the suit. On a subsequent day, it was shown to the Court that three of the former witnesses had been re-examined, with the addition of one new witness; that two of them deposed to the first marriage, and the other two to the second; that they had all had an opportunity of seeing the wife, upon the occasion of her being examined at the police office, Queen-Square, upon a charge of bigamy, and that they all concurred now in identifying her. JUDGMENT. SIR WILLIAM SCOTT. The Court was certainly of opinion, at the former hearing of the cause, that there was a material defect as to the identity of the party proceeded against. The indulgence of a decree of confrontation had been granted, but the result was not such as the Court was entitled to expect. It was necessary that the wife should have been confronted with a witness who knew her in both characters, or with two or more at the same time, who could separately identify her in each. The acknowledgment, however, by the party produced, that she was the party in the cause, seemed to have been too much relied on. Acknowledgment, indeed, is a term, in such a case, improperly applied, as it is no acknowledgment at all, unless the party is otherwise proved to be the party in the cause; and, without such proof, the acknowledgment is open to the suspicion of having been collusively made, and by another than the real party. The person, however, has now been seen FIELDER v. SMITH otherwise NELSON, falsely called FIELDER. Nullity, by reason of the want of due consent: the mother, who had given consent, BRISCO v. BRISCO.-p. 199. Alimony, pending suit of divorce, proportion, according to circumstances, 2001. given -Parge, 113. WILSON v. WILSON.-p. 203. Costs of the wife, having a sufficient independent income, not allowed to be taxed, MEDDOWCROFT v. GREGORY, falsely calling herself MEDDOW- Nullity of marriage, by banns, by reason of minority and want of consent of the father. WYATT, falsely called HENRY v. HENRY.-p. 215. Nullity of marriage, by a publication of banns in a false name, sustained.-Nature of BURGESS v. BURGESS.-223. Divorce, by reason of adultery; Proof,-confession of the particeps criminis, as con- THIS was a cause of restitution of conjugal rights, instituted by Mrs. 645137 Burgess, in which an allegation was given, on the part of Mr. Burgess, pleading the adultery of the wife, and praying divorce on that ground. JUDGMENT. SIR WILLIAM SCOTT. This suit commenced by a citation on the part of the wife. The prayer of Mrs. Burgess is met by an allegation on the part of the husband, pleading facts of adultery, and, on that ground, praying the legal remedy of divorce. A responsive allegation has been given in by the wife: witnesses have been examined on both pleas; and, upon their evidence, the case now comes on for hearing. It is proper that I should consider, in the first place, the proofs of the charge against the wife; because if that is sufficiently proved, it will exclude her prayer for a restitution of conjugal rights; and if it is not proved, it will exclude his prayer for a divorce, and he will still lie under the necessity of cohabitation with her. The marriage is admitted and proved on both sides, it took place at Lambeth in the month of August 1802, and the parties lived together from that time until January 1812, and had several children. It appears, that Mr. Lane, a young gentleman, was introduced into this family about the latter end of the year 1813, or the beginning of 1814; that until that time the husband and wife had lived in a sufficient degree of amity. He was an affectionate hushand, and fond of seeing his wife admired; and she met his affection with no return of unkindness on her part; their harmony was uninterrupted, notwithstanding differences which had occurred with respect to the settlement of some family property; and it does not appear to have been affected by any waywardness of disposition on her part. There was no ground to complain of any want of attachment on the part of the husband: If any thing was to be observed, he might be said to have entertained a blind confidence in her, unsuspicious of those consequences, which might have been anticipated by a man of greater caution. In short, nothing materially affected their domestic peace, until Mr. Lane was introduced into the family; caressed and courted by the husband, and unhappily by the wife also, if the facts charged are true. In September 1814, Mr. and Mrs. Burgess, with their two children, went on a visit to the Rev. Mr. Lloyd, a friend of theirs, at his living, in Northamptonshire. Mr. Lane accompanied them. The visit appears to have lasted about a fortnight, and, during that time, Mrs. Burgess's conduct to Mr. Lane attracted Mr. Lloyd's observation: he says, "that he observed Mr. Lane was very attentive to her, and that she appeared desirous of attracting and engrossing his attention; that she was always desirous of sitting next to him at table, and on various other occasions, either in the carriage or on the barouche box; but that he never saw any thing in her conduct that approached to indecent familiarity, nor were any liberties taken in his presence, but she showed a partiality to his society; that, on one occasion in particular, when they were all on a fishing party, Mrs. Burgess separated herself from the rest of the party to return with Mr. Lane to a spot, which they had left, at a distance of more than half a mile from where they then were, contrary to Mr. Lloyd's expressed wish." In November of the same year, Mr. Lane, the father of this young man, at the request of his son, and as an acknowledgment of their civilities to him, gave them an invitation to pass a few days at his house at |