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and Latin tongues according to aud during the infancy of the heir the Oxford grammar, printed at to his conservators, and as there the Theatre at Oxford, with write
no heir, and no such ing, arithmetic, or accounts, or for conservators as appointed by the not leading a sober life and con- will, it would be most analogous versation, or want of good mo to his intention to hold that the rality. He then made certain de. trustees should have the power of vises and bequests for the erection removing the master for neglect of a school-house and alms-houses. or misconduct. The general rule Decrees were made in certain of the Court of Chancery was, causes relating to the property, and that whoever de facto was the by that of 1751 the charities were trustee had the
power of amotion, established, and a scheme drawn and in the present case the rule up for their management. In would be wholesomely and pro1792 the Humberstone estate was perly exercised. sold to Mr. Smith, afterwards His Honour said, that it would Lord Carrington, and in 1812, be a very irksome thing for a clerand not before, steps were taken gyman to be thus under the power that the charities should be estab of any private man or set of men ; lished, and in 1818, when the it would be equally irksome to any charity fund amounted to 24,8671., set of country gentlemen to invest the same Was effected.
Other them with such a power as was schemes were from time to time contended for. The Master had approved for the government of exercised a sound discretion, and the charities, from the last of he should therefore overrule the which the trustees filed the pre exception. sent exceptions. The first excep The principal other exceptions tion was, that the master had laid were, that the under-mastership down that there should be eighteen ought to be held from time to trustees, and that when they were time by any competent gentleman reduced to twelve those twelve willing to accept it, and that the should, by proceedings in the holder should be dismissed upon Court of Chancery, procure the receiving three months' warning number of eighteen to be made or three months' salary. up; whereas he ought to have His Honour thought the effect directed that the vacancies should of this would be to create a perbe from time to time filled up by petual auction of the office, and the remaining trustees.
to open the door to a probability The second exception was, that of a gentleman being sent out into the master had not provided that the world to earn his bread after the schoolmaster should be remov he had passed the best of his. able by the trustees for misconduct. years in the honest discharge of
Sir C. Wetherell contended that his duty. Cheap education was the trustees were the proper per no doubt good, in a sense, but not sons to have the power of amotion. in such a sense as that. On the They were in the nature of, though exception that the master ought not, actual visitors of the charity. not to be allowed to hold the of. A visitorship might be granted, or fice of a magistrate, his Honour devised. The testator had devised said that the 21st rule made ample the power of amotion to his heir, provision for that; for by that it
was said, “That the duties of the cruelty charged by her against her head master shall be to personally husband. The truth or falsehood attend in the school, and to teach of these charges were not the suband instruct the boys during the ject of the present inquiry ; nor school-hours, or so much thereof was it necessary to consider the as he is able to do consistently various charges in detail ; for there with the discharge of his parochial could be no doubt that the perand spiritual duties as vicar of the sonal ill-usage stated in the libel parish of Humberstone." If, there was of the grossest character, fore, he undertook the duties of a fecting bodily safety, and even enmagistrate, and such duties inter- dangering life, such as, if proved, fered with his parochial or magis- and not barred by legal impediterial duties, he would be liable to ment, would entitle Mrs. Snow to dismissal for breaking that rule. the separation she prayed. There But it would be outrageous to say, was only one real question to be that he should not, if he pleased, decided-namely, whether the conrecreate himself in the holydays duct of Mrs. Snow, taking it as by acting in the commission of described by herself in her own the peace; as well might it be pleading, did not form a legal bar contended that he should never to the progress of the suit; in take a walk. The exception must other words, whether it did not be overruled.
amount to condonation. Before The other exceptions were then considering the meaning and effect argued, and in most instances ex of condonation, it might be well perienced a similar fate, though to ascertain whether condonation, some few of the rules laid down being of the nature of a plea in by the Master were modified. bar, should be noticed before it is
expressly pleaded by way of deCONSISTORY COURT.
fence. When condonation is to be March 16.
inferred from the evidence only,
without any facts being pleaded on Snow v. SNOW.-CONDONATION IN either side which could raise the Case or Cruelty.
question, the result of all the cases Dr. Lushington delivered judg- was, that unless such condonation ment in this case, which was a suit were established by the clearest by Mrs. Georgiana Snow against and most conclusive evidence, the Mr. Robert Snow, her husband, for court would not be satisfied to act a divorce, on the ground of cruelty. upon it; for if it had been exThe parties were married in Ja. pressly pleaded, the other party nuary, 1832, and continued to live might have produced further evitogether till the 25th of November, dence to explain, and disprove the 1841, when the husband quitted defence. But he (the learned Paris where they had been re- Judge) was of opinion, that this siding, and came to England, the reasoning did not apply where the brother of Mrs. Snow going over alleged condonation is to be into Paris, for the purpose of bring- ferred from the statements in the ing her to this country. In this libel alone. It could not be injussuit Mrs. Snow prayed the inter- tice to the wife, for it is her own position of the court, to obtain ex-parte statement alone which legal protection against acts of was to be considered. It was not
likely to induce error, because, if in the case of adultery, the whole the facts were not amply sufficient of the acts of adultery committed to lead to a legal conclusion against are not known to the party agthe admissibility of the plea, the grieved. Thirdly, it had been uniprinciple universally recognised versally laid down by all the great was to allow the suit to proceed ; authorities, that a strong distincwhereas, to decline taking cogni- tion respecting condonation exzance of the whole legal effect of isted between husband and wife, the facts pleaded, in this stage of and that much would be consi. the cause, might, in some cases, dered culpable in the husband lead to long delay, useless and ex which is praiseworthy in the wife. pensive litigation, and a grievous Fourtlıly, it was equally admitted disappointment of hopes not unrea that, when once condonation had sonably entertained by the wife, in actually taken place, the right to consequence of the admission of the complain of previous cruelty and plea. He therefore felt bound to adultery was gone, unless revived pronounce his opinion, whether the by the commission of the like ofcircumstances pleaded in the libel fences, or something approaching did amount to legal condonation, to or savouring of them. In the and he had the authority of Lord present case, there being no sugStowell for this course, in the case gestion of any revival of the cruelty of “Popkin v. Popkin,” Hagg. 766. after the return to the marriage Condonation, although a technical bed, the sole question was, wheterm, clearly imported the forgive ther such return, under the cirness of an offence done; and is cumstances pleaded, constituted stated by Sanchez, and in some of condonation in its legal sense; and the decisions in these courts to be consequently, the difficulty which of two kinds--the one verbis ex arose was the application of the pressis—that is, an express for third rule; for had this been the giveness and reconciliation; the case of a husband returning to the other, remissio tacita : the remis bed of an adulterous wife, he (the sio tacita is the relurn to connu learned Judge) should, without bial intercourse. He (Dr. Lush hesitation have said, that the conington) should endeavour to ascer.
donation was legally complete. tain what had been decided, and
The case of “ Tinmings v. Timthen, if possible, decide this case
his case mings," 3 Hags, E. R., 84, thou by the application of the same totally different in many respects, principles. In the first place, he would be a strong authority for apprehended, from the result of this position. But the pinch of the cases, it had been determined the present case, and that which that a return by a husband or wife he did not find had ever been deto the marriage bed, was in almost cidel, was, whether, where the all cases a presumptio juris et de husband had committed adultery jure of connubial intercourse. Se or cruelty, and the wife continued condly, that a return to connubial cohabitation, which was often held intercourse was prima facie a con to be laudable, she could quit her donation of past adultery and pre husband, and maintain her suit vious cruelty, liable to be rebutted, when the cohabitation was conhowever, in many cases; as where tinued after the last act of adula the return is compulsory, or where tery or of cruelty. Of course he
excluded from consideration cases no adultery in this case, and though of forced continued cohabitation, in questions of condonation, the of which he would speak hereafter. same doctrine was almost univerIn the first place, to take adultery, sally attempted to be applied to which might be perhaps distin- condonation both of adultery and guishable from cruelty ; if a cruelty, still he thought the two wife, cohabiting voluntarily with offences so distinct in their naher husband after the last act of ture, that the same consideraadultery, may bring her suit, not tions could not be equally apwithstanding that cohabitation, plicable to both. With respect many difficulties would arise. First, to condonation for cruelty by cofor how long a time was that right habitation, there was no doubt to exist ? - a week, a month, a that where such cohabitation is the year, or no fixed time? Was it to effect of force or fraud, it never be left to circumstances whether could amount to legal condonation. the cohabitation was condonation Then could the presumption of or not? And if this question could coliabitation working condonation be left in so loose and unsatisfac- be rebutted by other circumstances, tory a state, what became of the and if so, by what? He believed whole doctrine of revival by fresh that no authority could be found offences? If cohabitation be not bearing directly on this point. In presumed condonation, many of the case of “ Lord and Lady Westthe previous discussions would ap- meath,” Sir John Nicholl said, pear to have been utterly vain. “Cruelty in almost every instance The truth was, that the line of must consist of successive acts of distinction between condonation ill-treatment at least, if not of perand other conduct which would sopal injury; so that something of equally bar a remedy, had not, a condonation of earlier ill-treatand, he might perhaps say, could ment must, in all cases, necessarily not, be perfectly observed. Thus, take place." In “ D'Aguilar v. condonation had been mixed up D’Aguilar,” which bore a closer with that which, though it worked resemblance to the present case, the same effect, was totally dis- Lord Stowell laid down the docsimilar in its nature. Both hus- trine, that the patient endurance band and wife might so repeat- of cruel treatment, is not only not edly forgive adultery, that the a bar to the wife's suit, but raises remedy was forfeited, the party no presumption against the truth showing an insensibility to the in- of her complaint. That case illusjury. Most of the observations in trated the difficulty of the present. favour of the wife's repeated for- There was in that case (as Lord giveness, only went to this--that Stowell termed it) an “extorted her endurance shall not be con consent to return to cohabitation, strued to be insensibility to injury, and that not connubial; it was not a It was not necessary, for several complete forgiveness; and yet Lord reasons, to follow out more mi- Stowell thought it absolutely nenutely the reasoning with respect cessary, to show that cruelty comto cohabitation after adultery mitted prior to the return to coamounting to condonation, and a habitation, had been revived by bar against the party condoning cruelty subsequent." In Popkin obtaining a separation; there was 0. Popkin," however, the mere
continuance to cohabit for a short of exception, he should proceed to time after the last act of cruelty consider the facts of the case. The was not deemed by Lord Stowell learned judge then went through as fatal to the wife's suit. Com- the articles seriatim,observing, that bining all these considerations, he the cruelty charged commenced al(Dr. Lushington) thought he was most from the period of the marjustified in saying, that connubial riage ; and if the charges were cohabitation, after the last act of true, the violence and brutality of cruelty, was not necessarily and the husband could scarcely be suruniversally a bar, as condonation, to passed; but they were ex-parle the wife's suit, even though such charges ; and the court assumed cohabitation might not be forced them for the mere purpose of conor fraudulently brought about by sidering the admissibility of the the husband, but might be in one plea. After pointing out the arsense voluntary. There were many ticles which required reformation, circumstances in which it would and rejecting some, he held the be exceedingly difficult, if not im- libel (subject to the observations possible, for the wife to withdraw he had made, and to the reformafrom cohabitation, especially when tions he directed) to be admisabroad; and if such continued co sible. habitation were wholly unaccompanied with any intention to con VICE CHANCELLORS' done, and with a determination to
COURTS. separate on the first safe opportu
March 23. nity, the court would not hold the
BULTEEL V. LORD ABINGER. wife entirely deprived of all remedy in case of great cruelty, where His Royal Highness the Duke there was no reason to believe of Gloucester devised his Rapley that the husband was emendatus or Bagshot estate, in the parishes moribus. The court must con
of Windlesham, Winkfield, and sider the safety of the wife; and a Sandhurst, in Surrey and Berks., continuance to share the husband's consisting of about 2,400 acres, a bed might not, under circum- large part of which was covered stances, in the least degree prove with plantations, and also the rest that she was not afraid of renewed of his real estate, charged with vaviolence, or that the husband re rious legacies and bequests, to the pented, and intended to treat her Duchess of Gloucester, for her life, with kindness. The general princi- with a power of sale, with the ple of condonation arising from con concurrence of his executors, Sir nubial intercourse, though not ab- Edmund Currey, Lord Abinger, solutely forced or fraudulent, and and Benjamin Currey. The Duke of such condonation operating as
died in 1834. The Bagshot estate a bar, did not, in all cases of was, by a deed of 1835, to which cruelty, universally apply to the the Duchess was a party, vested in wife: whether such intercourse the three executors of the Duke, shall operate as a bar, must de as trustees for sale, for the benefit pend upon all the circumstances of the legatees. Mr. Benjamin of each individual case. Without Currey was the confidential sopretending to define the circum- licitor of the Duke during his life, stances which should form grounds and he was also the solicitor of the