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and Latin tongues according to the Oxford grammar, printed at the Theatre at Oxford, with writing, arithmetic, or accounts, or for not leading a sober life and conversation, or want of good morality. He then made certain de vises and bequests for the erection of a school-house and alms-houses. Decrees were made in certain causes relating to the property, and by that of 1751 the charities were established, and a scheme drawn up for their management. In 1792 the Humberstone estate was sold to Mr. Smith, afterwards Lord Carrington, and in 1812, and not before, steps were taken that the charities should be established, and in 1818, when the charity fund amounted to 24,8677., the same was effected. Other schemes were from time to time approved for the government of the charities, from the last of which the trustees filed the present exceptions. The first exception was, that the master had laid down that there should be eighteen trustees, and that when they were reduced to twelve those twelve should, by proceedings in the Court of Chancery, procure the number of eighteen to be made up; whereas he ought to have directed that the vacancies should be from time to time filled up by the remaining trustees.

The second exception was, that the master had not provided that the schoolmaster should be removable by the trustees for misconduct. Sir C. Wetherell contended that the trustees were the proper persons to have the power of amotion. They were in the nature of, though not, actual visitors of the charity. A visitorship might be granted, or devised. The testator had devised the power of amotion to his heir,

aud during the infancy of the heir to his conservators, and as there was now no heir, and no such conservators as appointed by the will, it would be most analogous to his intention to hold that the trustees should have the power of removing the master for neglect or misconduct. The general rule of the Court of Chancery was, that whoever de facto was the trustee had the power of amotion, and in the present case the rule would be wholesomely and properly exercised.

His Honour said, that it would be a very irksome thing for a clergyman to be thus under the power of any private man or set of men ; it would be equally irksome to any set of country gentlemen to invest them with such a power as was contended for. The Master had exercised a sound discretion, and he should therefore overrule the exception.

The principal other exceptions were, that the under-mastership ought to be held from time to time by any competent gentleman willing to accept it, and that the holder should be dismissed upon receiving three months' warning or three months' salary.

His Honour thought the effect of this would be to create a perpetual auction of the office, and to open the door to a probability of a gentleman being sent out into the world to earn his bread after he had passed the best of his. years in the honest discharge of his duty. Cheap education was no doubt good, in a sense, but not in such a sense as that. On the exception that the master ought not to be allowed to hold the office of a magistrate, his Honour said that the 21st rule made ample provision for that; for by that it

was said, "That the duties of the head master shall be to personally attend in the school, and to teach and instruct the boys during the school-hours, or so much thereof as he is able to do consistently with the discharge of his parochial and spiritual duties as vicar of the parish of Humberstone." If, therefore, he undertook the duties of a magistrate, and such duties interfered with his parochial or magisterial duties, he would be liable to dismissal for breaking that rule. But it would be outrageous to say, that he should not, if he pleased, recreate himself in the holydays by acting in the commission of the peace; as well might it be contended that he should never take a walk. The exception must be overruled.

The other exceptions were then argued, and in most instances experienced a similar fate, though some few of the rules laid down by the Master were modified.

CONSISTORY COURT. March 16.

SNOW

v. SNOW.-CONDONATION IN CASE OF CRUELTY. Dr. Lushington delivered judgment in this case, which was a suit by Mrs. Georgiana Snow against Mr. Robert Snow, her husband, for a divorce, on the ground of cruelty. The parties were married in January, 1832, and continued to live together till the 25th of November, 1841, when the husband quitted Paris where they had been residing, and came to England, the brother of Mrs. Snow going over to Paris, for the purpose of bringing her to this country. In this suit Mrs. Snow prayed the interposition of the court, to obtain legal protection against acts of

cruelty charged by her against her husband. The truth or falsehood of these charges were not the subject of the present inquiry; nor was it necessary to consider the various charges in detail; for there could be no doubt that the personal ill-usage stated in the libel was of the grossest character, affecting bodily safety, and even endangering life, such as, if proved, and not barred by legal impediment, would entitle Mrs. Snow to the separation she prayed. There was only one real question to be decided-namely, whether the conduct of Mrs. Snow, taking it as described by herself in her own pleading, did not form a legal bar to the progress of the suit; in other words, whether it did not amount to condonation. Before considering the meaning and effect of condonation, it might be well to ascertain whether condonation, being of the nature of a plea in bar, should be noticed before it is expressly pleaded by way of defence. When condonation is to be inferred from the evidence only, without any facts being pleaded on either side which could raise the question, the result of all the cases was, that unless such condonation were established by the clearest and most conclusive evidence, the court would not be satisfied to act upon it; for if it had been expressly pleaded, the other party might have produced further evidence to explain, and disprove the defence. But he (the learned Judge) was of opinion, that this reasoning did not apply where the alleged condonation is to be inferred from the statements in the libel alone. It could not be injustice to the wife, for it is her own ex-parte statement alone which was to be considered. It was not

likely to induce error, because, if the facts were not amply sufficient to lead to a legal conclusion against the admissibility of the plea, the principle universally recognised was to allow the suit to proceed; whereas, to decline taking cognizance of the whole legal effect of the facts pleaded, in this stage of the cause, might, in some cases, lead to long delay, useless and expensive litigation, and a grievous disappointment of hopes not unreasonably entertained by the wife, in consequence of the admission of the plea. He therefore felt bound to pronounce his opinion, whether the circumstances pleaded in the libel did amount to legal condonation, and he had the authority of Lord Stowell for this course, in the case of "Popkin v. Popkin," Hagg. 766. Condonation, although a technical term, clearly imported the forgiveness of an offence done; and is stated by Sanchez, and in some of the decisions in these courts to be of two kinds-the one verbis expressis-that is, an express forgiveness and reconciliation; the other, remissio tacita: the remissio tacita is the return to connubial intercourse. He (Dr. Lushington) should endeavour to ascertain what had been decided, and then, if possible, decide this case by the application of the same principles. In the first place, he apprehended, from the result of the cases, it had been determined that a return by a husband or wife to the marriage bed, was in almost all cases a presumptio juris et de jure of connubial intercourse. Secondly, that a return to connubial intercourse was primâ facie a condonation of past adultery and previous cruelty, liable to be rebutted, however, in many cases; as where the return is compulsory, or where

in the case of adultery, the whole of the acts of adultery committed are not known to the party aggrieved. Thirdly, it had been universally laid down by all the great authorities, that a strong distinction respecting condonation existed between husband and wife, and that much would be considered culpable in the husband which is praiseworthy in the wife. Fourthly, it was equally admitted that, when once condonation had actually taken place, the right to complain of previous cruelty and adultery was gone, unless revived by the commission of the like offences, or something approaching to or savouring of them. In the present case, there being no suggestion of any revival of the cruelty after the return to the marriage bed, the sole question was, whether such return, under the circumstances pleaded, constituted condonation in its legal sense; and consequently, the difficulty which arose was the application of the third rule; for had this been the case of a husband returning to the bed of an adulterous wife, he (the learned Judge) should, without hesitation have said, that the condonation was legally complete. The case of "Timings v. Timmings," 3 Hagg, E. R., 84, though totally different in many respects, would be a strong authority for this position. But the pinch of the present case, and that which he did not find had ever been decided, was, whether, where the husband had committed adultery or cruelty, and the wife continued cohabitation, which was often held to be laudable, she could quit her husband, and maintain her suit when the cohabitation was continued after the last act of adultery or of cruelty. Of course he

excluded from consideration cases of forced continued cohabitation, of which he would speak hereafter. In the first place, to take adultery, which might be perhaps distinguishable from cruelty; if a wife, cohabiting voluntarily with her husband after the last act of adultery, may bring her suit, notwithstanding that cohabitation, many difficulties would arise. First, for how long a time was that right to exist?a week, a month, a year, or no fixed time? Was it to be left to circumstances whether the cohabitation was condonation or not? And if this question could be left in so loose and unsatisfactory a state, what became of the whole doctrine of revival by fresh offences? If cohabitation be not presumed condonation, many of the previous discussions would appear to have been utterly vain. The truth was, that the line of distinction between condonation and other conduct which would equally bar a remedy, had not, and, he might perhaps say, could not, be perfectly observed. Thus, condonation had been mixed up with that which, though it worked the same effect, was totally dissimilar in its nature. Both husband and wife might so repeatedly forgive adultery, that the remedy was forfeited, the party showing an insensibility to the injury. Most of the observations in favour of the wife's repeated forgiveness, only went to this-that her endurance shall not be construed to be insensibility to injury. It was not necessary, for several reasons, to follow out more minutely the reasoning with respect to cohabitation after adultery amounting to condonation, and a bar against the party condoning obtaining a separation; there was

no adultery in this case, and though in questions of condonation, the same doctrine was almost universally attempted to be applied to condonation both of adultery and cruelty, still he thought the two offences so distinct in their nature, that the same considerations could not be equally applicable to both. With respect to condonation for cruelty by cohabitation, there was no doubt that where such cohabitation is the effect of force or fraud, it never could amount to legal condonation. Then could the presumption of cohabitation working condonation be rebutted by other circumstances, and if so, by what? He believed that no authority could be found bearing directly on this point. In the case of " Lord and Lady Westmeath," Sir John Nicholl said, "Cruelty in almost every instance must consist of successive acts of ill-treatment at least, if not of personal injury; so that something of a condonation of earlier ill-treatment must, in all cases, necessarily take place." In "D'Aguilar v. D'Aguilar," which bore a closer resemblance to the present case, Lord Stowell laid down the doctrine, that the patient endurance of cruel treatment, is not only not a bar to the wife's suit, but raises no presumption against the truth of her complaint. That case illustrated the difficulty of the present. There was in that case (as Lord Stowell termed it) an "extorted consent" to return to cohabitation, and that not connubial; it was not a complete forgiveness; and yet Lord Stowell thought it absolutely necessary, to show that cruelty committed prior to the return to cohabitation, had been revived by cruelty subsequent. "In Popkin v. Popkin," however, the mere

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continuance to cohabit for a short time after the last act of cruelty was not deemed by Lord Stowell as fatal to the wife's suit. bining all these considerations, he (Dr. Lushington) thought he was justified in saying, that connubial cohabitation, after the last act of cruelty, was not necessarily and universally a bar, as condonation, to the wife's suit, even though such cohabitation might not be forced or fraudulently brought about by the husband, but might be in one sense voluntary. There were many circumstances in which it would be exccedingly difficult, if not impossible, for the wife to withdraw from cohabitation, especially when abroad; and if such continued cohabitation were wholly unaccompanied with any intention to condone, and with a determination to separate on the first safe opportunity, the court would not hold the wife entirely deprived of all remedy in case of great cruelty, where there was no reason to believe that the husband was emendatus moribus. The court must consider the safety of the wife; and a continuance to share the husband's bed might not, under circumstances, in the least degree prove that she was not afraid of renewed violence, or that the husband repented, and intended to treat her with kindness. The general principle of condonation arising from connubial intercourse, though not absolutely forced or fraudulent, and of such condonation operating as a bar, did not, in all cases of cruelty, universally apply to the wife: whether such intercourse shall operate as a bar, must depend upon all the circumstances of each individual case. Without pretending to define the circumstances which should form grounds

of exception, he should proceed to consider the facts of the case. The learned judge then went through the articles seriatim, observing, that the cruelty charged commenced almost from the period of the marriage; and if the charges were true, the violence and brutality of the husband could scarcely be surpassed; but they were ex-parte charges; and the court assumed them for the mere purpose of considering the admissibility of the plea. After pointing out the articles which required reformation, and rejecting some, he held the libel (subject to the observations he had made, and to the reformations he directed) to be admissible.

VICE CHANCELLORS'
COURTS.
March 23.

BULTEEL v. LORD ABINGER.

His Royal Highness the Duke of Gloucester devised his Rapley or Bagshot estate, in the parishes of Windlesham, Winkfield, and Sandhurst, in Surrey and Berks., consisting of about 2,400 acres, a large part of which was covered with plantations, and also the rest of his real estate, charged with various legacies and bequests, to the Duchess of Gloucester, for her life, with a power of sale, with the concurrence of his executors, Sir Edmund Currey, Lord Abinger, and Benjamin Currey. The Duke died in 1834. The Bagshot estate was, by a deed of 1835, to which the Duchess was a party, vested in the three executors of the Duke, as trustees for sale, for the benefit of the legatees. Currey was the confidential solicitor of the Duke during his life, and he was also the solicitor of the

Mr. Benjamin

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