WESTMEATH U. WESTMEATH [ 1 8 3 41 111 ICNAPP, 49
[42] ON APPEAL FROM THE A ~ C ~ E ~ COURT OF C A N T E ~ ~ ~ ~ ~ ~
~ E ~ ~ G ~ ~ ~ ~ ~ r A ~ JOHN, Marqu~s of ~ ~ S ~ M E A T ~ , - ~ ~ e ~ ~ a ~ ; ~ M I L ANN
~ E ~ ~ E ~ ~ E ~ I ~ A ~ E T ~ , M a r c h ~ o n ~ s of E S ~ ~ A T ~ , his Wife,-
~ e ~ ~ ~ ~ ~ t , * - [ ~ o v . 13, 18341.
In estimating the amount of alimony to be allowed a wife after a se~aration,
on the ground of orudty, the husband i s not entitled to a d ~ u c t i o ~ ~ ut of
what+ would otherwise be payable by him out of his income, in respect of
money left, by wills since the marriage to his wife’s separate use, nor in
respect of his wife’s salary as a Lady-in-waiting to the Queen; but he$ is
entitled to such a. deduct~on in respect of a pension from the Crown granted
to his wife.
In Easter Teim 1821, the Marquis of ~ ~ t m ~ a t h institukd a suit in the Con-
slstory Court of London, against his wife, th0 ~ a r c l i i o n ~ ~ of ea tmea th , for
r e s t ~ ~ u t ~ o n of conjugal rights. In ~ ~ w ~ r to the ~ ~ a r q u i ~ ’ s libel, th0 M a ~ h i o ~ e s s
put in an allegation, pleading adultery and crue1t.y on &E parb. On the 21st of
April 1826, the Judge of t;he C o n s i a ~ ~ Court (Sir C. Robinson) pronounced that
the M~rch~one#s had failed in her proof of the allegatio~, and assigne~ her to
return home to the M a ~ ~ u i s , and rwtore to him. conjugai rights (see the judgment in
this case, 2 Hag. Eccles, Appendix, 5). !Fhe Marc~i~oness appealed from this sentence
to the Arches Court, and the Judge of khat CouA (Sir J. Nicholl), on the 7th: of
February 1827, revetrsed the sentence of the Consistory Court., pronounced that the
Marchionem had sufficimtiy proved [43] the1 allegation of cruelty, but had not
prom! that of adultery, and was on that account entitled to a separation, and
condemn^ the ~ a ~ u i ~ in all cos& except those occasioned by the charge of adultery
(SOY, &e j u d ~ n t in this ease, 2 Eag. Ecclm Appendix, 61). m e Marquis appealed
fr9.x this sentence ik the Delegatee, who, however, on the 18tb 09 April 1829 (2 Hag.
Ecci .s. Appendix, 134), afxirmed it, and remitted t.he cause, A petition8 for a Com-
mission of Reviexv was a f t ~ ~ w ~ d s preaented by the ~ a ~ u i s 5 md ww d ~ s n ~ i s s ~ by
the Lord Chancellor, in. June 1829.
In Michaelmas Term 1832,t an allegation of faculties was given in on behalf of
the M a r c ~ o n ~ s , and wag finally adm.itted after an opposition on the part of the
Narquis. In the following Hilary Term, the Marqu~s gave in his answers to the
allegation, which were s u b s ~ u e n t ~ y ordered to be amended. After they had been
amended, affidayits were filed by both parties in support of their respeetive state-
ments.
The Judge of the Arches Court directed the Registrar to report the lowest
amount of faculties charged in the allegation on the part of the Marchioness, the
highest a ~ o u n t admitted in the answers of the Marquis thereto, and the deduct~ons
claimed therein, and what was the amount of the separate income of the Mar-
ch i on ess.
[&$I By the Registrar’s report, dated the 15th June 1833, i t appeared that the
amount of the ~ a r q u ~ s ’ s income, all arising from landed property in Ireland, as
pleaded in the allegation, was &10,996 15s., subject to yearly deduot.~on~ of $2915
* Present :me Lord ~ r e ~ d e n t ( ~ a . r q u i ~ of Lansdow~e), the Tice-Cha-ncellor [Sir
~ n c e l o t S h a d w $ ~ ~ , Mr. Baron Parke, Xr* Justice ~ a u g h a n , and the Chief Judge
of thc Court of Bankruptcy [l%a Hon. Thomas Erskine].
t On the 31st of August 1831, the House of Lords, on an appeal from Ireland,
pronounced a deed, by which the Marquis had secured a separate income of A1300
a year to the Marchionew, to be void so far as she or her trustees should seek any
benefit under it. Westmeath v. Salisbury, 5 Bligh, N.S. [339; see note to West-
meath v, ~ a ~ ~ b ~ in Eng. b p , 5 R.L. p. 3491. A similar decision as to the eEwt
of this deed had been previously expressed by the Court of Xing’s Benoh in Eng-
land. ~~~1~ v, ~ e ~ t ~ ~ ~ ~ h , 6 Bar. and Cres. 200. See also ~ e s t ~ e a ~ ~ v. We&
meath, Jacob, 126).
563
XI1 XNAFP, rlli ~ ~ ~ T ~ ~ ~ A T ~ v. W ~ S T ~ ~ A T ~ fl8341
3s. 5d., leaving him, t ~ ~ e r e f o r ~ ~ a net income of $8080 12s. 76.; and that. the amount
~~~~~~~~~ by J&tb, after deduction of the same annual charges, as his net income,
on an average of four years, from 1828 to 1831, was $2808 2s. 5d. The separate
~ n ~ o ~ ~ e o f the a r c h i o i i ~ a p ~ e a r ~ to consist of $500 a year p i n - ~ o n e y ~ of the
div~dend$ on two sums of 2.6401 6s, 8d. and &4119 9s. ?d., Consols, which, together
with some otIier srnall sums, had been left to her separate use, under the wills of
different relations and friends since her m a r r ~ a g e ~ of Iier salary of $500 a year.
as a L a d ~ i n - ~ a i t i i 3 g to the Queen, in right of whioh situation she was also entitled
to apartments in St. James’s Palace; and of a pension of 2.400 a year, granted to
her by Xing George the Fourth, from the 5th o€ April 2828. The a ~ o u ~ i t , free from
deductions, which she received from this pension, was L385 a year.
On the 9th of June 1833, the Judge of the arch^ Court made his decree, by
which he allotted the sum of $700 a year to be paid by the ~ a r q u i s to the Mar-
chioness, as perK~~anent a ~ ~ ~ o ~ ~ y (in a d d i t ~ o ~ to the SUM of 32500 a year t*o which
she was entitled as pin-nioney), the same to be coniputed from the date of the
sentence of the 7th of February 1827 (a report of the judgment in this case will
appear in Dr. ~ a g g a r ~ s c c l e ~ ~ a s t i c a l Reports).
This decree was appealed aga~nst o the King ia Council.
L ~ s ~ ~ i ~ ~ ~ t o n (Dr.) and Addan3s (Dr.), for the ~ ~ p o n d e n t . ~
), and Follett, for the Appellant.
proceeded ~ r ~ n c i p a ~ l y upon the facts stated in the a l lega t~o~~,
answers, and a ~ d a ~ - i t ~ . The fo~Iowing cases were however cited, to ahow the
principle upon which the Ecclesiastical Courts have acted in ascertaining the
amourit of alimony: Fwst v. Twrst (Lee’s cases, 92, note); ~ o ~ ~ ~ e s v. ~~~~~~
(Lee’s cases, 90) ; ~ a v ~ v. Davis (2 Hag. Cms. 204, note) ; ~~~~~~ v, ~~~~0~ (2 Hag.
Cons. 203); Brksco v. Briseo (2 Eag. Cons. 199); ~o~~~~~ v. ~ ~ ~ ~ r ~ o ~ b (Lee’s
cases, 595); C o d e v, Coo&e ( 2 Phil. 40); O c ~ i ~ ~ v, ~ a~ (2 PIA 109); Lord
~ ~ ~ f ~ ~ ~ , . ~ m s e (cited in Sir J. ~ i o ~ ~ o l l ’ s j u d g ~ e n t ~ in 2 Phil, 43, and ibitll llO};
B l ~ ~ z i ~ ~ ~ ~ v. ~ ~ ~ ‘ e ~ . e (3 Phil, 258); ~ ~ ~ a ~ c v. ~ ~~a~~ (1 Hag. Eecles. 528);
Hempe v. Kempe (1 Hag. Ecclee. 632).
The Vice-Cl~a~icellor [Sir L a n c ~ ~ t h a d w ~ ~ l ~ . - I n this c&se their ~ r d s h ~ p s are
called upon to reverse a ~udgment of Sir John NichoIl. It i s their ~ r d s h i p s ’
opiiiion~ that ~ u d ~ ~ n e n t s ought to be n i a i ~ t a i n ~ in aKt respects, both in their prin-
4 p l e and details, unlesa some plain and manifest error a ~ p e a r s upon the face of
them.
[46] The principle upon which the judgment of Sir John Nicholl proceeded, was
passing over srnall items, to consider Lady ~ e s t ~ e a t h , s pin-~oney as a certain
sum, &500 a year; her salary of ~ ~ 0 0 , as Lady of the b e d - c h a ~ ~ r ~ as a source of
~ncome not a t all p e ~ ~ n e n L , and of which the: amount was equalled by the ex-
penses entailed upon it8 p ~ s ~ s s o r ; and her p%ns~on of &385 also; as nob a secure
source of income. Considering, therefore, her salary and pension as funds equally
ff~ictuatin~, and tending to award to Lady ~ ~ t ~ e a t ~ ~ a clear and certain allow-
ance, hy way of a l i ~ o n y , of $1200 a year, he ca~cu~ated her income a5 only $500
a year, and ordered Lord W e s t ~ e a t ~ i to pay her $700 per annum in addi t i~n to
that.
Their ~ o r d ~ h i p s concur entirely with Sir John ~ i c h o ~ l as to the ~ ~ o u n t of
~ n ~ o ~ ~ i e Lady ~ ~ ~ t n ~ e a t h ought to receive; and they think that he acted r i~ht Iy in
not e o ~ i ~ p u t i i ~ ~ her salary, on a c ~ ~ u n t of its a c ~ ~ M p a ~ ~ y i n ~ expenses; buL they think,
that in holding her pension to be u n c e ~ a i ~ , and themfore of no value, he went
farther than the law allows, because, by law, the pension i s secure (see 2 and 3 Will.
4, c. 116, s. 9 and 10; and on the subject of Pensions, see also Clay v. Sc, John, 2
S h and Stu. 32; E$ parte ~~~~~~~’ 4 Bar, and Ad. 690; Dtrsis v. The Duke nf
* The respondent’s counsel co~menced in this oase, accord in^ to the practice
in the Court of ~ e ~ e ~ ~ t e s , that, the parties should be heard in the same order in
which they had been heard in the Courts below. This praetice has, however, been
since altered by the Judicial ~ o ~ ~ i ~ t ~ ; and the practice nov is, that the appe1-
lanth counsel in all case8 should begin, the r ~ p o n d e ~ t ’ s follow, and one of the
a p ~ e ~ ~ a n t ~ s counsel be heard in reply.
584
SMYTB “U. SMYTE [1835] I11 KNMP. 47
~ ~ n ~ ~ ~ o ~ # u ~ ~ , 1 Swan. 74). ~ ~ i i I i ~ i i i g the decision, t~ierefore, to be right in all
other points, but ~hinking it wrong upon the point of the security of the ensi ion,
the opinion of their ~ordships is, that the ~ u d ~ e n t ought to be recti~ed, by strik-
ing out the amount of the peiision from the a ~ ~ ~ n o i ~ y al~owed, which will thus be
reduced to 8315 per an nun^; and a further variation must be made in that part
of the ~ u d g ~ e n t , which relates to the arrears. It is their Lordships’ opinion, l$7]
that, arrears in full upon $700 a year should be aI~owed until the time that Lady
Westmeath received the grant of the pension, and that from that time they should
he reckoned at the rate of &315 per annum.
The report of the Judicial Conimittee to His Majesty in Council (which was s u b
sequently confirmed) was, “ tha t the decree appealed from ought to be reversed,
so far as regards the amount of alimony thereby allotted; that alimony, at and
after the rate of e700 per annum, was due to the most noble the ~ a s c ~ z i o ~ e s ~ of
~ e s t n ~ e a t h , the r~p5ndex~ t , from the date of the sentence or decree g i ~ e n and
~ ~ r o n o u n e e ~ in the Arches Court of ant er bury, to wit, on the I th day of February
1827, till the 5th day of April 1828 ; that the SUM of &E398 i s due for such alimony,
from the 6th day of April 1828, to the 5th day of April 1829 ; and that a ~ i ~ ~ o n y at
and after the rate of &315 per annum, from the 6th day of April 1529, to the 29th
day of Septe~ber last past, is due to the said ~ a r ~ h i o ~ i e s s of ~ ~ e s t i ~ ~ ~ a t ~ ~ ; and that
a l i ~ o n y , at+ and after the rate of the said sum af S315 per an nu^, should in future
he allotted t ~ . the said ~ a r ~ h ~ o ~ ~ e s s of ~ ~ t ~ ~ ~ a ~ ~ ~ , the Same to be payable ~ u a r t e r ~ y ,
and to be computed from the 30th day of September last past ; that the said cause,
with all its incidents (saye the cosEs incurred in this Court), should be remitted to
the Judge of the Court from which the said appeal was brought: and their Lord-
ships did further order and direct, that in case His Majesty should be pleased to
confirm such their report, that the said Marquis of ~ e s t ~ e a t ~ should pay the costs
incurred on behalf of the r~pondent , as we11 in the Court8 below as in this Court j
and referred the cwts incurred in this Court to the Deputy Registras thereof for
taxation.”
[Xews’ Dig. tit. H ~ S ~ ~ N ~ and ~ ~ F ~ , 11. DXVORCE. 12. ~2~~~~~ nid ~ ~ ~ ~ ~ ~ ~ e ~ -
mace, a. i. b. Whnt ~ ~ ~ ~ ~ t e s ~ r ~ ~ u ~ ~ ~ ~ ~ c t ~ ~ ~ ; ii. b. ~~~~~~ ~ f f ~ f f ~ ~ f ; and see
X a t r ~ ~ o n i a ~ C uses Act, 1857 (20 and 21 Vi& c. 851, 8s. 24, 32. See also t h e
Printed Cases in Privy Cauncil Appeals.]
[4$3 ON APPEAL FROM THE ARCEES COURT OF C ~ ~ ~ ~ R ~ ~ ~ ~ ~ .
dTM. HEXElui ~ A ~ ~ r ~ ~ A ~ ~ SlMY
~~~~~~~~~~ ~February 12, 18351.
k suit for a divorce brought by a wife against her ~ ~ u ~ b a n ~ in the ~ o i i ~ i s t o r y
Court of London, was appea~ed against to the Arches Court, and there dii-
missed aga~nst -he husband by a g r e e ~ e n t in 1828, but the i ~ ~ ~ ~ i b ~ t ~ o ~ ~ to tfre
Co~sistory Court was not reIaxed. ]In 1832, another s u i t €os the saiiie pur-
pose was b r o u g ~ t by the wife against the ~ ~ u ~ b a n d ~ in the ~ o ~ ~ s i s ~ ~ s ~ r ~ o u r t ,
and the Judge ~llowed the libel to be brought in, and overruled the l~usba~d’s
protest, but refueed to order him to appear, on the gsaund that the inhi&
tion in the former suit was in force. A n appeal by the wife against this
decrw, having been dismissed for irregularity, and the cause renritted, the
Judge of the Consiskory Court refused to receive additional articles to the
libel : the Arches Court, on appeal, admitted them, holding that the agree-
ment putting an end to the former suit, was ~ a n t a m o u n ~ to a fornzal relaxa-
tion of the inhibition. Held, by the Judicial Conimittee, that the Arcbe8
Court ought not. to have admitted the additional articles before the llusbaxld
had appeared to the suit; but they retained tlie cause, ordered the husbantf
to appear a~)so~uteIy to it, and declared that on his a p ~ e a r a ~ c ~ they P;OIild
assign to hear on the original and a d d ~ t i o ~ a ~ libel and exhibits.
565