Somerset, because that he (Somerset) wanted to put his nephew, Pierce Butler (plaintiff), into the estate." Heard Somerset speak on this subject; witness had told Somerset of his having met Henry Butler on that morning, who had been inquiring after his health, and what Somerset said was, that Henry Butler thought that he (Somerset) intended the Ballyconra estate for his nephew Pierce; he said "his brother Henry Butler's son, could never be the heir of the Ballyconra estate." No one was present at these conversations; Somerset's wife died about two years after him, in 1828, and Lord Kilkenny was brought over to Ireland then, Colonel Butler having charge of him; also, Lady Ormond, who deposed that "she and the late Lord Ormond were connexions of the Kilkenny family, and knew all the brothers; she heard in the family of a marriage of Henry Butler more than twenty years ago, which they spoke of as a Scotch marriage;' she had not heard of a marriage with Miss Harrison when she first heard of the Scotch marriage; witness only met Henry Butler once in England, in London, and that was after she knew of the marriage with Miss Harrison, whom witness never met among the members of the family; and witness was never visited by her, and never visited her." And Fitzstephen French, M. P., stated "witness had heard Somerset Butler, with whom he was very intimate, having known him from childhood, say, in 1818 or 1819, that Henry But first wife was alive when he married the second, and that Pierce Somerset Butler would, eventually, have the estate." The Hon. Anne Butler, widow of Colonel Butler and mother of the plaintiff, who of this letter and of other evidence in the cause, on this ground, there being post litem motam. Hereupon arose the great question, as to what was lis mota in the case. Is the lis mota the actual state of facts out of which the present controversy sprung? or is it any dispute about the marriage? or is it any question about the property? I admit that there was a dispute concerning the marriage between Taaffe and Mrs. Colebrooke, but there was no question or controversy as to the marriage of Butler with Mrs. Colebrooke anterior to the time of the declaration which had been given in evidence; and, therefore, no one had any interest at the time in making any misrepresentation. What is a lis mota? I do not push the question to the point that there must be legal proceedings pending. But the lis mota did not arise until there occurred the actual state of facts out of which the present controversy sprung, and that was long subsequent to the writing of the letter. At that time we do not find there was any question whatever relative to the marriage of Henry Butler with Mrs. Colebrooke, the point now in dispute; it could not then be in controversy. Is a piece of evidence given in a cause to be a lis mota, thereby excluding the testimony of one family by evidence given in a controversy arising in a different family? The authorities on this point show that a lis mota does not arise until the occurrence of the actual state of facts out of which the controversy springs-The Berkely Peerage case, (4ler had told him that he was married, and that his Campb.401); Walker v. Beauchamp, (6 Car. & Pay. 552); Monkton v. The Attorney-General, (2 Rus. & Mil. 147, 161), afterwards resumed as Robson v. Attorney-General, (10 Cl. & Fin. 471)-[Describes the facts and reads judgment.] [Pennefather, B.- is her eldest son, stated that she knew Somerset Observe not declarations of facts.] Reilly v. Fitzgerald, (6 Ir. Eq. R. 335); The Sussex Peerage case, (11 Cl. & Fin. 99).-[Describes the facts]. There, entries made by Lady Augusta Murray in her Bible, were admitted, but declarations by the Duke of Sussex, after the commencement of proceedings to annul the marriage, in the Consistorial Court, were excluded. No lis mota had, in this case, ever arisen about the marriage, when the letter was written and all the declarations were made during the lifetime of Somerset Butler, until whose death the circumstances of this controversy could not have arisen. [Pennefather, B. -What other evidence of declaration was given?] That of W. Percy, who was in Somerset Butler's service from November, 1815, until his death, in 1826. Somerset Butler had lost the use of his 1. Butt, Q.C., (with whom were J. Napier, Q. limbs when witness entered into his service, and he C., R. Armstrong, Q.C., Peter Barlow, and Matused to assist him, and was the only person who thew O'Donnell), in support of the conditional did so; witness heard Somerset Butler speak about order-In the first place, he wished to say a few his brother, both in the first year he was with him words on the subject of the certificate in this case, and often afterwards; heard him speak of a mar- in reply to the observations of the Attorney-Generiage of Henry Butler about September or Octo- ral. Without venturing, which would be exceedber, 1816. Somerset was then living in Chelten-ingly unbecoming, to have any controversy with ham, where witness had met Henry Butler, and it was this which led to the observations used by Somerset. He said that Henry was unfortunate, as he had a wife living at the time of his marriage with Miss Harrison; that Henry was a goodnatured creature, but had an 'out-hand' with Butler first in 1801, and he spoke, in witness's presence, at the end of 1815 or begining of 1816, of the marriage of Henry Butler, and he said that "he strongly suspected that his brother had been previously married;" she could not say whether this was the first time she heard of it, but he frequently adverted to the fact of that marriage having taken place, as far as he knew. On cross-examination, she stated that, "Of that marriage Somerset seemed to have a strong suspicion." There was no lis mota then to govern this case, and if that evidence were properly receivable on a question of pedigree, there was nothing as to lis mota to prevent its reception. On all these grounds, we submit that the conditional order for a new trial should not be made absolute. the learned judge who tried the case,-for he admitted that they were bound to argue the case upon the notes of the judge-he claimed for his own certificate whatever weight was usually given to the certificate of counsel. It was quite true he had used a printed report of the trial, but he adopted it, and was as responsible for it as if it were in his own handwriting; and when the Attorney-General said he had not seen it, he (Mr. Butt) would not say that he had exercised a wise discretion in avoiding an acquaintance with the facts of the case, by not using the certificate, or with the law of the case, by not looking into the Scotch authorities which related to it. If he had not read the report it was his own fault, and it was right to observe that Ball, J., agreed that the certificate was substantially accurate, although upon some important points it differed from his notes, by which, of course, they must be bound. The first ground upon which we submit that the verdict should be set aside was, that it was against the weight of evidence. That included two distinct considerations which, in this case, ran a good deal into each other. One was, whether the evidence ought to have been believed by the jury; and the other, whether-discarding, for the sake of argument, all impeachment of the evidence-the jury drew from it the right conclusion or inference. Upon the ground of a previous marriage, never acknowledged by either of the parties to it, but, on the contrary, as he thought, repudiated by them, the property and title of the defendant, whose parents had been always received in society as husband and wife, were now, after the lapse of half a century, sought to be destroyed. And what were the facts alleged to sustain that previous marriage? That Mrs. Colebrooke was, upon a particular evening, in bed with her paramour, and a gentleman, with whom she had previous intimacy, came and claimed her outside, publicly in the street, as his wife. If he (Mr. Butt) was right in his view of the Scotch law of marriage, that was a material fact. After considerable disturbance he forced his way into the house, and something was alleged to have then passed between them, by which the relation of husband and wife was constituted. Having then induced him to leave the house, she returned to the embraces of her paramour. [Whiteside, Q. C.-That is not so]. There is evidence of it, at all events. [Whiteside, Q. C.-Not a particle]. We will not quarrel about the word "embrace," but at all events she returned to him in a state of violent agitation. Mr. Taaffe's friends were sent for to protect her against any attempt of Mr. Butler's to return, and upon that it is now alleged, that by such a marriage as that, a marriage publicly in the church is to be invalidated. He thought he would be able to show that neither of the parties ever asserted that that scene was any marriage whatever, although either might have had some vague notion that it constituted some obligation under the law of Scotland. So far from asserting it to be a marriage, they repudiated it and it certainly seemned rather a strange proposition to say that, under the circumstances, third parties were to set up the marriage to destroy the claims, rights, and possessions of the defendant in this suit. He thought he might venture to say that, according to the principles of English law, by which the title of this property must be in the end deter mined, such a case, to prevail, ought to be made out conclusively. If that case were true, Henry Butler was guilty of bigamy by marrying Miss Harrison at Brighton, in 1811; but the presump tion of innocence of an act of sin, in a civil as well as a criminal court, entitled every man to the benefit of a doubt; in other words, the presump. tion of innocence, the presumption against the commission of a crime, which the law directs the jury to be guided by, applied equally to civil as to criminal cases. Every presumption of law was in favour of the innocence of the act of the second marriage. And, again, the fair presumption of the law was in favour of legitimacy; and there was this peculiarity in the case, that if they held this second marriage to be good, they illegitimatized nobody; whereas, if they took the first to be a valid one, they bastardized the children of the second. The principles of the Scotch law were equally distinct; and to prove an irregular mar riage, it was necessary to show beyond reasonable controversy not merely the facts of the marriage, but that it was in accordance with certain requi. sites which the Scotch law required as to such a marriage. The judgment of the House of Lords in the case of M'Neill v. M'Gregor, lays down the law of Scotland with regard to marriage, and in reference to which he had examined the advo. cates at the trial. [It appeared from counsel's certificate that he read to the witness, Mr. Ivory, the decision in the House of Lords, in 1828, in the case of M'Gregor v. M'Neill, (1 Dow. & Cl. 208, 246,) aud the judgments of Lord Lauderdale and Lord Eldon therein, which he stated to be binding authorities in Scotch law. He also read for him the report of the cases in the Scotch Sessional Reports, and especially the judgment of Clarke in the recent case of V. — which he stated, contained a correct view of the law of Scotland on the subject of marriage. The cases of M'Adam v. Walker, Dalrymple's case, (2 Hag. Con. R. 54,) and Frazer on Personal Relations, were also referred to on the other side]. What is the Scotch law relative to marriage?-Lockyer v. Sinclair, (8 Bell & Murray.) [Whiteside, Q. C.—Lord Eldon objected to reading any books in a somewhat similar case, and the judge here has not set them out on his notes; the case must be proved on the evidence, and not by dicta or reports in books]. [Pennefather, B.-I think we may be satisfied with the evidence of the Scotch advocates in the case]. According to their evidence, the only dif ference between the law of Scotland and our own was, that whereas our law required that it should be performed in the presence of a clergyman or registrar, there was no such restriction in Scotland; but that there must be a contract, as solemn, as deliberate, as binding, and as free as any that could be entered into here in the face of the Church. A celebrated Scotch lawyer said that a Scotchman would as soon think that a man had not been bu ried de facto because a clergyman had not read the funeral-service over him, as that a woman was not married because a clergyman had not read the marriage-service: but there must be either a marriage or a burial de facto. The common notion as to the manner in which a marriage might be cele brated in Scotland was, to a certain extent, erro neous. It was perfectly settled. No form of words, such tumult, altercation, and violence, and under no matter how solemn, really constituted a mar- the circumstances of terror and agitation in which riage, unless there was with those words the con. Mrs. Colebrooke obviously was, and continued even sensual contract, which must be free, deliberate, after this occurrence, she gave a free consent to be and solemn. There must be the present intention married to Henry Butler ? The depositions of in the minds of both parties to constitute a mar. Stanley show that there were great confusion and riage by the force of the words used. Applying alarm in the house after the alleged marriage, lest those principles, then, what were the words stated Henry Butler should return-[reads the deposito have passed on the occasion referred to? Sarah tions.] If her signature to a bill of exchange Stride was, of course, the only witness as to it, were in question here, would any jury in their and she had given different versions of what oc- senses have found that she-under such circum curred. She went into the bedroom and was called stances as are here detailed-had signed it freely upon to be witness. Henry Butler followed her into and deliberately? You have it by this evidence the bedroom, and Margaret Johnstone and William that after the husband whom-as is, forsooth, alJohnstone, the other servants, were called up. It leged—she had just acknowledged departed, a large appeared that Margaret Johnstone died three party assembled-and that even when Stanley left, years ago, exactly when Sarah Stride first told his servant remained behind-to protect her from the story. [Whiteside, Q. C.-That we dispute]. him. I ask, is all this consistent with a free It could not be disputed. It was one of the im- marriage and a deliberate consent? There is unpeachments of her evidence that, up to a few days impeachable testimony that she went away secretly ago, she denied any such marriage to both the liti- to escape from Butler, and lived with Taaffe. gants, and her first giving evidence respecting it [Pennefather, B.-Is there not some evidence singularly synchronized with the death of John- that she met Butler afterwards?] Yes, at Elvanstone, and it was also most singular that the plain- foot, and once, I think, in London; but they did tiff kept back his case until Margaret Johnstone not live together in such a way as to constitute a died-[reads her account of the marriage from the marriage. The evidence given, supposing it to be judge's notes.] It had been observed that the wit- perfectly correct, showed that there could have ness, Sarah Stride, had been cross-examined for been no marriage on that occasion. A curious three days by him, but he was limited to four question, however, occurred here, and, with great hours each day, and the questions and answers respect, we submit that the instruction which the had to be written down, so that each took about learned judge gave respecting it was calculated to five minutes. They never denied, on the part of mislead the jury, and, we believe, that it in some the defendant, that a very violent scene occurred degree accounted for the erroneous verdict which in Northumberland-street, and that Henry Butler they gave. We contended at the trial that, whatendeavoured to force Mrs. Colebrooke into some ever passed on that evening, and whatever was the promise or acknowledgment; but what he denied, intention of Butler, her sole object was to get him when he impeached the evidence of Sarah Stride, out of the house, and that she had no intention of was that anything occurred upon which the jury becoming his wife. The Attorney-General then could rely, so as to come to the conclusion that raised this point, and examined the Scotch advothere was a Scotch marriage. Was it possible to cates as to the question of fraud-[reads Mr. Bell's say that there was an intention to perform a mar- evidence as to fraud]-and the judge left it to the riage when he entered the house under the circum-jury, that if they came to the conclusion that Mrs. stances, or that the declaration on her part was free? [Reads evidence of Mr. Taaffe.] The Scotch law holds that there must be intention at the time in the minds of the parties using the words. Here she only used the words-even if all the circumstances related be taken as true-in order to get rid of him; there is no evidence that either he or she had any intention by the present words then used to enter into a contract, and-even if all the surrounding circumstances deposed be true-it does not constitute a marriage, although, perhaps, it might be evidence of a prior marriage, which, however, is not alleged; but the words do not amount to any declaration of intention on her part. But was she free at the time? No! look to the res-gesta. Her reputation and that of her children-her daughters-was at stake; she knew Butler to be a violent man; she feared a collision between him and Taaffe. Had she not the strongest inducements to get rid of Butler at any costat all hazards? Influenced by these fears she acknowledged him whom she had kept out. Let them take the facts, and say, was it not a mockery of all common sense to hold that in the midst of Colebrooke did not give the consent which in ordinary cases was necessary to constitute the relation of husband and wife in a contract of that nature, then there was the further question, whether, according to Scotch law, the marriage would not still be good, because it was a fraud upon Butler. If she had wished to entrap Butler into a marriage without constituting the relation herself, in that case her conduct would amount to fraud. [Pennefather, B.-That is what is meant by fraud.] But of this there was not the slightest evidence. We could not consider that the question of fraud arose in the case at all; the whole evidence contradicts it, and there was no pretence for leaving that question to the jury, and that it would be monstrous to hold that it did arise if her only object was to get him out of the house, and did anything which he desired in order to get him away. That was an instruction of the judge upon a most material point, and he had no doubt that upon it the jury ultimately found their verdict; for, in a question of foreign law, the instruction of the judge, although it be accompanied by a warning that he did not mean to coerce them, must be most U the reverse. It would be a verdict against the weight of evidence; but when they threw into the scale the presumption of law in favour of legitimacy, of innocence, and against crime, and the presumption of irregular marriages in the face of the church, the verdict became not merely one against the powerful in its effect on a jury. If Henry Butler had, on the very next day, gone into court and filed a declaration of marriage, would any court in Scotland have held that it was, under all the circumstances, a valid marriage as against her? Could she, on the other hand, have enforced it as against him, she who reeking from the arms of her para-weight of evidence, but against law and evidence. mour!-had thus contracted it? Are we now to say This was the strength of the case, and he would be content to rest it on that argument. So far as he had gone, no controversy was raised as to evidence. He would take Somerset Butler's letter as admis sible evidence, which did not alter the case in the slightest degree, and it only referred to the state of facts more fully deposed to by the witnesses. He was here embarrassed by no controversy or difficulties regarding principles of law. [Pennefather, B. that a marriage which could not then be set up by either party, shall now be held valid as against the children and the wife- now the widow-of Henry Butler ? It really was amusing to hear Mr. Whiteside, at the trial, putting it to the jury that they were to vindicate her character against her seducer, by making that a marriage. I believe a more profligate woman never existed, and she scarcely deserved the glowing description that had-Do you mean to argue against the admissibility been given of her by his learned friend, who represented her as an ornament to society, and tracked her up to the "Recording Angel" weeping over her frailties, having much more occasion to shed tears for her than for poor uncle Toby. It really was put thus, for Mr. Whiteside described her as calling upon them from the grave to do justice against her profligate seducer, and redeem her from infamy. In the Court of Exchequer all that appeared very absurd, but I assure the court that I believe it misled the jury, and if their Lordships had heard the power and the poetry with which his learned friend had adorned what now appeared to be very bad arguments, they would not wonder that he had misled the jury. But I put the question, Could Butler have forced that upon her as a valid marriage? or could she have forced it upon him, under the circumstances? And if we are right in this view of the case, they had a marriage, which neither of the parties themselves could have established in a Scottish court, now, after the lapse of nearly fifty years, set up against the children of Henry Butler by an innocent wife. of that evidence?] Counsel said he did, but that it did not alter the case, as the validity of the marriage as a Scotch marriage, must stand or fall by the account given by Sarah Stride. He had omitted to say, on the previous evening, that her evidence completely confirmed Mr. Stanley's, as to the friends having been summoned to protect Mrs. Colebrooke from the outrage of Butler, and that they were sent for by Taaffe, with the consent and knowledge of her mistress, and this at the very time and to guard against the violence of the very man with whom, it is alleged, she deliberately, solemnly and freely consented to marry. Another piece of evidence, as remarkable as was ever submitted, were the letters and subsequent conduct of Mrs. Colebrooke. He did not know whether it was necessary for him to argue that evidence was properly admissible here. The Scotch advocates told them that a Scotch court, or even the House of Lords, in deciding whether there was a marriage or not, would look to the subsequent conduct of the parties, with a view, as Lord Eldon said, of considering their acts, and seeing whether they imported matrimonial conJan. 20.-Butt, Q.C., in continuation, said that sent or not; and a question of much nicety would when the court had adjourned the previous evening he arise on that, as to whether that could be cou had gone to this extent, on the ground of the verdict sidered as part of the Scotch law of marriage, or being against law and evidence, or at least against was merely a rule of evidence of the Scotch courts. the weight of evidence, that, assuming all the facts The first letter of Mrs. Colebrooke read was one to be proved, and that there was no impeachment of dated from Elvanfoot, 26th March, 1811, and was the credit of the witnesses, still, according to settled given in evidence to prove she was there at that principles of English and Scotch law, there was period, before the scene at Northumberland-street. nothing in the evidence to warrant the finding of Another letter was dated the 13th May, 1811, and the jury. According to the principles of English in it she stated that she would go to Edinburgh and Scotch law, it lay on the plaintiff to establish when she got Butler not to molest her again. a present consent to immediate matrimony, deli- This leter shows that the thought of being his berate, solemn, and free. Taking the facts here, wife was ever present to her mind. One of the there was not in the words anything that, under 30th May, written to Henry Butler, stated that the circumstances, naturally imported a consent to she would retain his letters as evidence of his ina free and immediate matrimony. So far from its famous conduct, and that she desired to hear no being deliberate, the circumstances disproved it. further from him. There was no question, if they It would be a mockery to say that a consent given were to take Somerset Butler's evidence, that Mrs. in this state of things was a solemn one; and look- Colebrooke was in possession of a letter from ing at the attendant circumstances, the violence of Henry, calling her his wife and the mother of his Butler, his leaving the house, and the number of children; and it was perfectly possible that if persons who collected to preserve Mrs. Colebrooke Henry Butler wanted to marry again he would be from his outrage, they would have very great diffi-anxious to get such a letter as that out of her hand. culty in finding any evidence showing a free con- On the 10th July she wrote to him, stating that The consent was not free; and so far from his letters were in the hands of a lawyer to get an the plaintiff making out his case, he had proved opinion on them, and inquiring if he was the author sent. Elvanfoot occurred previous to the scene in Nor- of the rumour respecting her marriage with Taaffe, |