strictly judicial, the points decided in this case are of legal authority. tI will be remembered that the petition of Colonel D'Este, son of the late Duke of Sussex, claiming the peerage dignities of his father, was disposed of by the House of Lords in the last session of parliament. The sole question was, whether a valid marriage had been contracted between His Royal Highness and the Lady Augusta Murray, regard being had to the provisions of the 12 Geo. 3. c. 11., which enacts that no descendant of George II. shall be capable of contracting matrimony without the previous consent of the person on the throne. The facts shortly stated were these:- -In the year 1793 a ceremony of marriage was celebrated at Rome between the parties by a clergyman of the Church of England (the Rev. Mr. Gunn), in a form as nearly as could be according to the rites of that establishment; in other words, the requirements of Lord Hardwicke's Marriage Act, the 26 Geo. 2. s. 33., were, as far as possible under the circumstances, complied with. And although it was admitted that the Royal Marriage Act would have annulled it had it been contracted in England, the question was, whether the same consequence attached in the case of a contract celebrated and consummated beyond the realm. Upon this point the Queen's judges were ordered to advise the committee; and, having taken time to consider, came ultimately to a unanimous opinion, delivered by the Chief Justice of the Common Pleas, that the prohibitory words of the act were general, namely, "that no one of the persons therein described should be capable of contracting matrimony." This, they held, was an abstract, unlimited interdiction, constituting in the Duke an incapacity, which he carried with him wherever he went, and which was consequently as operative and as insuperable in Italy as in this country. The marriage, therefore, was clearly bad; and to this the Committee for Privileges assented, and resolved accordingly. Such is a brief account of this determination. A point, however, arose in the law of evidence, to which attention may usefully be directed. It having been considered important for the claimant to show that, by the lex loci contractus, his marriage was good, a witness was produced to prove the existing law of Rome on the point. That witness was the learned and well-known Dr. Wiseman, who, upon examination, stated himself to be a Roman Catholic bishop, "and coadjutor to the bishop who is Vicar Apostolic to the central district of England at present." His evidence was objected to by the Attorney-General, on the ground that he was not a professional lawyer, nor had he any peculiar means of knowledge to render him admissible in the character of a skilled witness, competent to prove foreign law as matter of fact. The claimant's counsel, therefore, proceeded to qualify the witness by examining him as to his position and attainments. The doctor stated:- "I have had no personal experience of the administration of the law at Rome. I have studied the canon law. I have not gone through a regular course of it; but, for the discharge of my duties, it has been necessary that I should make myself acquainted with the canon law on all points on which it applies to matrimonial cases. I have gone through the studies usual for ecclesiastics, but not for ecclesiastical lawyers. I have not gone through such a course of study as would qualify me to be a judge in the ecclesiastical tribunals. I have no means of knowing the law on this subject more than any other learned ecclesiastic. I have been appointed an ecclesiastical judge in this country by the court at Rome, as any other bishop or vicargeneral might be. All that relates to matrimonial cases would come, of course, before me in my present office, and I should dispose of them by the canon law of Rome. It would be my duty to decide with respect to them. My decision would be of authority till reversed. I have frequently, during my residence in England, exercised this jurisdiction. I have authority to determine whether a marriage between two Catholics is or is not valid. The tribunals at Rome would respect my decisions, and act upon them. My jurisdiction is entirely confined to spiritual censures and to consequences of an ecclesiastical character, not affecting property or civil rights." Upon this the Lords determined that the witness came within the description of a person learned virtute officii, and that his evidence was therefore admissible.1 It was accordingly received; and, as we well remember, was exceedingly curious and instructive, showing how far the present law of Rome and of other Catholic countries recognises the validity of marriages contracted there by Protestants. In particular the learned doctor held that In course of the argument reference was had to a case decided by Mr. Justice Wightman at Nisi Prius, Reg. v. Dent, 1 Car. & Kir. 97., where it appears to have been held that a witness called to prove foreign law need not be at all connected with the legal profession. The question turned on the law of Scotland as to marriage. To prove it, a person was put in the box whose knowledge was stated by himself to be founded merely on these facts, namely, that he was born and educated in Scotland, where he had resided till he was twenty years of age. He, however, asserted himself to be acquainted with Scotch law; and the learned judge admitted his evidence. Adverting, however, to this decision, the Lord Chancellor took occasion, in the Sussex Peerage case, to say, that it was the "universal opinion both of the judges and the lords that the case represented to have been decided by Mr. Justice Wightman was not law." The witness must therefore either belong to the legal profession, or be (like Dr. Wiseman) peritus virtute officii. the marriage of the Prince and Lady Augusta would, under the circumstances, have been considered valid by the Italian lawyers. But all this is strangely omitted in the report. We recommend that it be inserted in Messrs. Clarke and Finnelly's next number; and we would further take the liberty of suggesting to these learned gentlemen that in reporting evidence given by witnesses vivâ voce (especially when proving a matter of science) it is not expedient to adhere too literally to the order (or rather want of order) in which answers are extracted by counsel from the party undergoing examination. In a Law Report, we submit that the substance and effect of what is said is all that is required; and that, we humbly think, should be given logically, and not in the random way in which it may chance to fall from the lips of the witness. A little attention to what we are now throwing out would have enabled the reporters to comprise in one page matter that in the report extends over thirteen. HALL V. PALMER. 3 Hare, 532. Immoral Consideration. A party had bound himself by bond to secure an annuity to a woman with whom he had long cohabited, the payment to commence from the death of the obligor. This bond was prepared by his solicitors, to whom he said, in reply to a question put to him by one of them, that he still maintained his connexion with the woman, and that it was not his intention to discontinue it. The evidence also showed that it was not broken off. Such being the case, the bond was left in the possession of these solicitors till the death of the obligor, against whose executor the woman filed a bill for payment of her annuity. The demand was resisted by the executor, who contended that the fact of placing the bond in the hands of his own men of business showed that the obligor had intended to keep it under his control; so that it was fairly to be inferred that future cohabitation constituted an element in the consideration of the bond; and if so, it was not obligatory. Vice Chancellor Wigram, in disposing of the case, observed that, "it was true that a bond given in consideration, either in the whole or in part, of future cohabitation, was void; but from the evidence here, he concluded that the bond was given in performance of what the obligor was informed he was under a moral obligation to do, and that the suggestion of turpis contractus was not sustained. The onus lay on those who disputed the validity of the bond to prove that the consideration was bad. He could not distinguish this case from that of Gray v. Mathias (5 Ves. 286.), where such a bond was held valid. In that case, as in this, the intercourse between the obligor and the obligee did in fact continue. In the present case it appeared from the evidence that, although the bond was given in consideration of past cohabitation, yet the obligor at the time stated that he had no intention of breaking off the connexion. The reasonable construction of that language was that he meant to maintain the woman in a manner not unlawful." The validity of the bond, therefore, is sustained by the Vice Chancellor on the ground that it was for past cohabitation; and so far there is nothing novel or very important in the determination. But when Vice Chancellor Wigram throws out the suggestion, perhaps not necessary for the purposes of his decision, that the obligor, in speaking of the continuance of the connexion, must be supposed to mean "in a manner not unlawful," we incline to suspect that most people would draw the very opposite conclusion from the circumstances of the case. The presumption of the ecclesiastical courts would, we believe, be directly the other way. They would hold - and we believe the bulk of mankind would agree with them—that an improper connexion continued, must necessarily mean continued improperly. MILLER V. CRAIG. 6 Beav. 433. PRITT V. CLAY. 6 Beav. 503. General Release - how considered in Equity. A general release, without particular recitals, however conclusive by way of plea at law, is not so regarded in courts of equity. Those courts require the releasee to prove that every transaction to which he desires to extend the application of a release was present to the mind of the releasor at the time of the execution of the release, or had been previously called to his attention with reference to such release. Full recitals, therefore, are absolutely necessary to the finality and efficacy of a general release. In Cole v. Gibson', Lord Hardwicke said, "it was common in equity to restrain a general release to what was under consideration at the time of giving it." Again, in a later case of Ramsden v. Hylton 2, his Lordship said, "It is certain, that if a release is given on a particular consideration recited, notwithstanding that the release concludes with general words, yet the law, in order to prevent surprise, will construe it to relate to the particular matter recited which was under the contemplation of the parties, and intended to be released. It is impossible to imply within the general release that which neither party could have had under consideration." 1 1 Ves. Sen. 503. 2 Ves. Sen. 305. 310. In Lindo v. Lindo1, a release, though unlimited in its terms, was held from the recitals and context to operate only as to a particular sum mentioned in the recitals. The foregoing principles seem pertinent to the decision in the recent case of Millar v. Craig. There, an account of partnership dealings and transactions was settled; and in 1823 releases were executed between the plaintiffs, the residuary legatees of one partner, and the representatives of the other partner, who died at a later date. The releases had exclusive reference to the partnership affairs, which were recited. In consequence of the proof of numerous errors, Lord Langdale, M. R., set aside the release given by the plaintiffs; but, having regard to the lapse of time, and the loss of books and documents, his Lordship refused to open the accounts generally, and merely gave leave to surcharge and falsify. His Lordship said, "Very numerous and important errors have been proved in this case. I cannot help saying, that I do not recollect any case in which errors of such an amount and number have met with so faint an answer as has been given in this case. Errors have been distinctly proved, but it is not necessary that I should observe upon them; for, unless the release is to cover all the errors detected in the accounts, the accounts, in some way or other, must be reconsidered. Beyond all doubt, the plaintiffs, who were in Scotland, never had an opportunity of examining those accounts. "Looking at all that has taken place between these parties, what reason is there to think that the plaintiffs had any means whatever of examining the accounts, or that they signed the release, except upon the mere confidence that these accounts had been truly and properly stated? This would entirely preclude the argument, that these parties must be considered as having settled each and every disputed item, for the purpose of coming to an agreement, arrangement, or compromise. This release was signed in confidence: it was signed in the belief that these accounts had been truly stated. Seeing that the release was obtained under such circumstances, I cannot think it is consistent with justice to say, that because a considerable length of time has elapsed, before these parties, resident in a remote part of the United Kingdom, discovered the errors, the account is for that reason to stand." The subsequent case of Pritt v. Clay proceeded upon an exactly similar principle. Pritt and Clay2 were in partnership as solicitors. Pritt died; and his representatives filed a bill in this court against Clay, for the purpose of having the partnership accounts taken. The defendant by his answer rendered the accounts, but by an error, arising from ignorance of fact, omitted a claim which 1 1 Beav. 496. 26 Beav. 503. |