the husband. The same, at Nelson Square, in the neighbourhood of Newington, to which they removed after leaving Mottingham; and then, at Loosely Row, in the parish of Princes Risborough, in the county of Bucks; where Mrs. Sullivan was resident, at the issue of the citation in the cause. And it is in proof, that the fruit of this intercourse has been two children, to whom the wife has actually given birth; without any pretended connection with her husband, the complainant in the cause.

So far then as respects the adultery charged on the wife, the case is fully proved. Now being so proved, and actual connivance, at least, on the part of the husband not being suggested; what is there, let me ask, to justify the wife's violation of her marriage vow; and so, to deprive the husband, in this particular instance, of that remedy, to which the wife's infidelity plainly entitles a husband, under ordinary circumstances? It has been argued, that the husband's going, and his long sojourn, abroad, amounts to a malicious desertion of the wife; and that this should operate as a bar. Now here, in the first place, I am still to learn, that even a malicious desertion of the wife by the husband, is any bar to a sentence of divorce prayed by the husband for adultery committed by the wife. By the law, indeed, of some countries, malicious desertion is a substantive ground of divorce, at the prayer of the wife, against the husband; but not even there, that I am aware of, it licences adultery on the part of the wife, by precluding the husband from a sentence of divorce on proof of its commission. Certainly, however, that neither is, nor ever has been, a doctrine of the law of this country; which also, as it is well known, has not recognized even malicious desertion as a substantive ground of divorce. But, though secondly, principally, I am clearly of opinion, that in true legal construction, the husband's absence from, was any thing but a malicious desertion of, the wife, under the circumstances of the case. At the time of the husband's going abroad, a suit (then just instituted) was depending, to try the validity of the marriage: nor was that question finally disposed of till long after the adulterous connexion formed by the wife, on which, being proved, the husband now relies for a sentence. But during the pendency of that suit, cohabitation was not only not incumbent, by law, on the parties, or on either of them; it would even have been legally censurable, at least in the husband. Nor could the wife at any period, till after that when she had forfeited her conjugal rights by the actual commission of adultery, have sued the husband for restitution, had he been resident in this country. Of one feature, at least, of malicious desertion, there is a total absence of any appearance in the cause-I mean that feature (often a very principal one in the character of malicious desertion) which discloses itself, in the circumstance of the wife being left unprovided for. She was amply provided for out of the husband's funds, on his becoming of age, as already said by the Court, under the deed-and, up to that time, she had been alimented at the rate of 3007. per annum, by the Courts in which the suit of nullity successively depended.

But the deed of separation has also been urged in bar of the husband's prayer. Now these Courts have so repeatedly said that such "deeds of separation" are no bars, either, on the one hand, to suits for restitution, or, on the other, as here suggested, to charges of adultery, that it would be quite superfluous to combat this argument, looking at the deed of separation between these parties, quá deed of separation

merely. But it has been said, that this particular deed of separation, by the very wording of it, amounts to a letter of license to the wife, to conduct herself howsoever, and to connect herself with whomsoever, she pleases. But I see nothing in the deed, even taken per se, which necessarily implies this. I see no more in the deed than the ordinary class of provisions (a) for enforcing, so far as may be, the continuance, and preventing the determination, of the separate state in which the parties covenant to live, by means of a suit for restitution brought by either, which, nearly in all cases, find their way into deeds of this nature; though nugatory as to any binding effect on the parties, in this particular, as already hinted. But what again, as appears in evidence, has been the conduct of the parties to the deed? Does that countenance the interpretation sought to be put upon it by the wife's counsel? Does that give it to be supposed that either the one gave, or the other took it, as a letter of licence to the effect contended? Quite the contrary. Did the wife consider it a letter of licence to connect herself with Mr. Gouldney? The clandestinity of that connexion, to which I have already alluded, shows it not to have been so regarded on her part. And as to the husband, it is not denied, that immediately on receiving intimation of what the wife's conduct had been, he takes steps to bring the matter to its present legal issue; without any suspicion, as it should seem, that he had licensed the wife to form any such connexion as that, which is the foundation of this suit-although the mere production of the deed, if a letter of licence to the wife to form such a connexion, would at once defeat the sole object of the suit, as he himself must have known.

The Court has been urged, over and over, to consider the ill effect which it has been partly argued, and partly assumed, that a sentence of divorce in this cause will have on public morals. This, of course, as with reference to the supposed countenance that immorality will derive, from a husband so circumstanced as the plaintiff, taking advantage, as it has been phrased, of his wife's infidelity. But is the Court, by witholding its sentence, to leave it to be inferred, as it must do, that a wife, even one so circumstanced as the defendant, has its sanction to

(a) "Now this indenture witnesseth, that in pursuance of the said agreement, &c., he, the said John Augustus Sullivan, doth covenant, &c. that the said Maria Sullivan may, at all times hereafter, live separate and apart from him, the said John Augustus Sullivan, her husband, as if she was sole and unmarried; and that she shall be free from the power and command, restraint, controul, and authority, of him the said John Augustus Sullivan; and shall and may live, and reside, in such place or places, and in such manner, as to her, from time to time, shall seem meet: and that he, the said John Augustus Sullivan, shall not, nor will molest or disturb the said Maria Sullivan in her person, or in her manner of living, &c., nor, at any time or times hereafter, by suit or process in the ecclesiastical Court, &c., or by any other means whatsoever, seek or endeavour to compel, the said Maria Sullivan, to cohabit or live with him the said John Augustus Sullivan, or to enforce any restitution of conjugal rights; and shall not, or will, for that purpose or otherwise, use any force, constraint, or violence, to the person of the said Maria Sullivan; or sue, or cause to be sued, any person or persons whatsoever, for receiving, harbouring, lodging, protecting, or entertaining her-but that she, the said Maria Sullivan, may, in all things, live, as if she was sole and unmarried without the restraint or correction of the said John Augustus Sullivan, or of any other person, or persons, by or through his means, consent, or procurement." It will be seen that these provisions are precisely similar to those in the deed of separation in the cause of Barker v. Barker. Vide page 308, ante in notis.

commit adultery? I hardly think that, of the two alternatives, this is the one least likely to countenance immorality. What should have been the wife's conduct in the peculiar circumstances under which I admit her to have been placed? Its object should have been, to qualify herself, during his absence, by mental and moral improvement, for the husband's future society; which might then, notwithstanding the state of actual separation in which they were living, have been ultimately afforded her. Instead of so doing, by abandoning herself to her vicious inclinations, she has clearly founded the sentence of legal separation now prayed by the husband-which, as thinking him justly entitled to it, under all the circumstances of the case, in spite of what has been urged to the contrary, I accordingly pronounce. (a)

(a) Mr. Sullivan has since obtained an act of parliament by which the marriage was dissolved: although he and his wife were living separate, as above, (in effect had never cohabited) when the adultery in proof was committed by the wife. To compensate for this ordinary requisite (namely the cohabitation, at that time, of the parties) to the passing of such an act, it seems, that the two houses examined witnesses to the wife's ante-nuptial incontinence. The editor conceives this to be the single instance of their having so done. Such evidence, it may be added has, in no instance, been received, to assist in making out the husband's claim to a sentence of separation by reason of his wife's adultery, in the spiritual Court. See Perrin v. Perrin, vol. i. p. 1.

PECULIARS COURT OF CANTERBURY.

ENGLAND v. HURCOMB.-p. 306.

Articles against three defendants for brawling, &c. in a church, pronounced to be proved, and the defendants suspended and condemned in full costs-the case of no one of the three, either looking to his own conduct, or that of the promovent, being held to be a case for mitigated costs.

PREROGATIVE COURT OF CANTERBURY. HUNTER v. BYRN.-p. 311.

(On Petition.)

Where objections to an inventory, given in on the oath of an executor, are taken by one only of various parties, (her interest, too, only derivative) equally interested in the effects of the testator, the rest apparently acquiescing; and where the disclosure of assets sought, refers back to transactions pretty remote in point of date, &c.-under such (and by parity of reason, under similar) circumstances, the Court will presume the inventory to be correct, and, consequently, will dismiss the executor, without strong grounds laid to induce a contrary suspicion.

HENRY FREDERICK ARBOUIN, late of Mincing Lane, London, died some time since, having duly made and executed his last will and testament, whereof he appointed his wife, Elizabeth Arbouin, James Byrn, (party in this cause), and John Sabatier, executors; who took probate, as such, of his will in the month of May, 1803.

The testator, by his said will, directed, that the residue of his estate and effects should be converted into money, and invested in the names of the said James Byrn, and John Sabatier; upon trust, to pay the interest, annual dividends, or profits thereof to his said wife, Elizabeth Arbouin, for her life; and from and after her decease, (in the event of the deaths of their common issue, under age and unmarried, a contingency which actually befel in the year 1817), upon trust, for the benefit of such person, or persons, as she, the said Elizabeth Arbouin, should, by will or otherwise, lawfully appoint.

Elizabeth Arbouin died, having first duly made and executed her last will and testament, whereof she also appointed James Byrn aforesaid, and the Rev. Daniel Veysie, clerk, executors, who duly proved the same in the month of February, 1806; having, in and by such will, directed and appointed, that both her own property, and that subjected to her appointment, by the will of her husband, in the event aforesaid, should, in that event, go to, and be divided among, certain persons in certain proportions-one eighth being limited and fbequeathed in the same, to Susannah Hunter, (formerly Arbouin) the other party in the cause.

Under these circumstances, a citation had issued, at the instance of the said Susannah Hunter, calling upon the said James Byrn, as surviving executor of the will of Elizabeth Arbouin deceased, for an inventory, and account of her effects. And the present question respected the validity of an objection taken, on the part of Mrs. Hunter, to the declaration in lieu of an inventory exhibited by the said James Byrn, under, and in virtue of, that citation.

In SUPPORT of the OBJECTION it was contended, that the inventory was unsatisfactory, as not duly setting forth the husband's effects, subjected, as above, to the disposal of the wife; to a constat of which Mrs. Hunter, as appointee to an eighth of these, was clearly entitled, and from Byrn, the party cited-he, Byrn, being the surviving executor, both of husband and wife.

ON THE OTHER HAND, it was argued that the objection was unfounded, the inventory itself being satisfactory, in the view taken of it by counsel (in effect, that stated in the judgment). It was also submitted, that the objection was one which, whether founded or not, it might be incompetent to the Court to entertain, on the authority of certain cases determined at common law; and in particular, on that of a late case, Henderson v. French, in Maule and Selwyn's Reports. (a)

JUDGMENT.

Sir JOHN NICHOLL.

This inventory or declaration is objected to, in a single item. The party who objects, states in her act on petition, that "she has been informed, and believes, that the sum of 11407. over which the said Elizabeth Arbouin is, in the said declaration, by the said James Byrn, admitted to have had a disposing power by the will of her late husband, does not constitute, and is not, in the said declaration, stated to constitute, the whole of her late husband's effects, subjected to the disposal of the said Elizabeth Arbouin, as aforesaid,"-that is, as already stated in the former part of the act. And she prays, that "the said James Byrn may be assigned to amend his declaration, either by inserting therein, or by exhibiting separately, a full, true, and particular inventory, of all and

(a) Vide case of Telford v. Morison, formerly Thomas, post, p. 322.

singular, such the goods, chattels, and credits of the husband, that at any time, since his death, have come to his, the said James Byrn's hands, possession, or knowledge, as, by the husband's will, were directed to be invested, upon trust for the benefit, in a certain contingency, of the appointees of the wife”—of which Mrs. Hunter, I may say, is fully adImitted to be one.

Now the property of the husband, so subjected to the wife's disposal, being the "residue of his effects," the exhibitant has stated, in substance, both the amount of that residue, and how derived. For he says, that, till the death of his co-executor, Mr. Veysie, in the year 1817, he, the exhibitant, scarcely intermeddled in the deceased's effects; save only that, early in that year, "at the time of his, the exhibitant's, bankruptcy, he proved, as executor of the deceased, a debt against his own estate, for the share of property due to her, the deceased, on account of a partnership concern, in which he, the exhibitant, and the deceased's late husband, had been formerly engaged;" with the dividends upon which, he purchased the sum of 15007., three per cent consolidated bank annuities, in the joint names of himself, and Mr. Sabatier, his co-executor in the estate of the husband. He admits the deceased to have had a disposing power over this, by the will of her husband; and this it is of which Mrs. Hunter speaks, in her act, as 11407., being the sum for which that stock was actually sold out in August, 1821; and which constitutes the supposed objectionable item, in the declaration now excepted to.

The question then is, whether the exhibitant is compellable, upon this statement of facts, to substitute for this sum of 11407., stated in his declaration, an inventory, in full, of the husband's effects, as now prayed? I am of opinion that he is not compellable, at this time, in virtue, at least, of the present citation, and under the circumstances. The disclosure sought, is very remote in point of time-it is sought by one, whose interest in the effects of the husband is merely derivative; and the citation is for an inventory of the wife's effects only, not those of the husband-although this last, as being a technical objection merely, inasmuch as Byrn, the party cited, is the husband's executor, as well as that of the wife, might have been overlooked by the Court, had the party citing him made a strong case upon the merits. Both testators have been dead these almost 20 years. Byrn too had co-executors in the management of the estates of both; each of whom is since also deadand of various legatees, the whole, it should seem, with the exception of Mrs. Hunter, have acquiesced in this sum of 11407., being, as he states it, that residue of the husband's effects subjected, by his will, to the wife's appointment. Now I think, under these circumstances, that I am bound to presume the inventory correct in this particular, without strong grounds laid to induce a contrary suspicion. But I have looked in vain for such, in the present proceeding. Nothing in the shape of any omission, or suppression, is specified-all which her act states (unsupported too by any affidavit) is, that she, Mrs. Hunter, has been informed, and believes, that this sum of 11407., is not the whole of her late husband's effects, subjected to the wife's disposal by his will. the contrary, it is sworn by Byrn, generally, at the end of this declaration, that no further or other goods, chattels, or credits, of the deceased, (the wife) have at any time come to his, the declarant's, hands, possession, or knowledge, than those inserted in the declaration; which would be plainly false, if this sum of 1140% did not constitute the whole

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