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There is also a paper which is insisted upon as material; but which is not proved on the interrogatories, though annexed to them. I shall also allow the opposers to plead and prove, if they think fit, that that letter is of the handwriting of Thomas Cargill, the executor: though my only object in rescinding the conclusion is, to obtain proof of the identity.

The following minute was taken down:-"The Judge having heard the proofs read and Counsel on both sides, rescinded the conclusion of the cause for the purpose of permitting John Cargill to plead and prove the identity of the party deceased, and for permitting the adverse party to plead and prove the handwriting of an exhibit annexed to his interrogatories."

On the 4th Session of Easter Term, an allegation, pleading identity, was admitted without opposition; three witnesses were examined upon it; and Cargill having admitted the handwriting of the exhibit, the Court, on the third Session of Trinity Term, pronounced for the will, the identity being fully established.

HENLEY and DUDDERIDGE v. MORRISON.-p. 147.

In a suit for seaman's wages, the Judge may properly rescind the conclusion of the cause for the admission of further evidence.

THIS was a suit for seaman's wages, wherein Lord Stowell, as Judge of the High Court of Admiralty, had, after the cause had been opened at the hearing, rescinded the conclusion in order to allow a second witness to be produced in support of the mariner's summary petition: and, on two subsequent occasions, the Judge, on affidavits, also rescinded the conclusion for the same purpose.

From this third rescinding of the cause, an appeal was prosecuted, on the part of the owners, to the High Court of Delegates, wherein the Judges, viz. Mr. Justice Bayley, Mr. Justice Park, Dr. Daubeny, Dr. Phillimore, Dr. Gostling, Dr. Blake, and Dr. Haggard, pronounced against the appeal, and declared "that the Judge of the Court below had proceeded rightly, justly, and lawfully, and they condemned the appellants in costs, and remitted the cause.

REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

CONSISTORY COURT OF LONDON;

CONTAINING THE

JUDGMENTS

OF

THE RIGHT HONOURABLE SIR WILLIAM SCOTT.

BY JOHN HAGGARD, LL.D. ADVOCATE.

VOL. I.

CASES

DETERMINED IN

THE CONSISTORY COURT

OF

LONDON, &c.

The Office of the Judge promoted by WILLIAMS v. BOTT.-p. 1. Pleading in a criminal suit, for brawling in the church:-Office of the Judge wrongly described, in a copy of the articles, fatal.

BARHAM v. BARHAM.-p. 5.

Divorce-Protest, as to the validity of the appointment of the guardian of the wife, 7 ad litem-and as to the effect of a citation, describing the party in a wrong parish, but cured by appearance, over-ruled.

ANTHONY v. SEGER.-p. 9.

Election of churchwarden. Alien disqualified; effect of the poll considered as to the other parties, on the disqualification of the person elected. Re-election.

The Office of the Judge promoted by

BARDIN and EDWARDS v. CALCOTT.-p. 14.

Proceedings against a person for erecting tombs in a church-yard without due authority, sustained.

The Office of the Judge promoted by

BARTON v. WELLS.-p. 21.

Jurisdiction of the Bishop of London, over Ely chapel, established:-Exemption, of ancient privileges allowed to the Bishops of Ely, in virtue of their episcopal residence, in Ely palace, overruled, as not continuing after the property had been transferred.

ride 26.5.

EVANS v. EVANS.-p. 35.

Divorce by reason of cruelty.-What circumstances constitute cruelty in construction
Dismissed.

of law.

THIS was a case of divorce, by reason of cruelty, instituted by Mrs.
Evans against her husband.

JUDGMENT.

SIR WILLIAM SCOTT.

This cause has been carefully instructed(a) with evidence by the practisers, who have had the conduct of it; and has been very elaborately argued by the counsel on both sides. It now devolves upon me to pronounce the legal result of the evidence, which has been thus collected, and of the arguments raised upon that evidence-a duty heavy in itself, from the quantity and the weight of the matter; and extremely painful, from the nature and tendency of a great part of it, and from the inefficacy of this Court to give relief adequate to the wishes of both parties. Heavy and painful as it is, it is a duty which must be discharged; and which can only be discharged with satisfaction under a consciousness, that it is discharged with attention and impartiality, and under the reflection, that if, after the endeavours, which I have used in cleansing and in instructing my own conscience upon the subject, I should have taken what may be deemed an undue impression of the case, the laws of this country have not been deficient in providing a mode, by which the parties may be relieved against the infirmities of my judgment.

The humanity of the Court has been loudly and repeatedly invoked. 352, 3. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its views merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Every body must feel a wish to sever those who wish to live separate from each other, who cannot live together with any degree of harmony, and consequently with any degree of happiness; but my situation does not allow me to indulge the feelings, much less the first feelings of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons, which the law approves, and it is my duty to see whether those reasons exist in the present case.

To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wisdom and humanity, with that true wisdom, and that real humanity, that regards the general interests of mankind. For though in particular cases, the repugnance of the law to dissolve the obligations of matrimonial cohabitation, may operate with great severity upon individuals; yet it must be carefully remembered, that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake

(a) There were several pleadings, and one in exception to witnesses, on which the observations of the Court will be introduced, as a note, in the latter part of this case.

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