wife died, leaving four children-three daughters and a son: but there was no reason on her death to alter his testamentary disposition, because his property would go among his children exactly as he had intended in the event of his dying before his wife.

On the 5th of October, 1824, he married a second wife, Mary Ann Arnold, a widow, who had a daughter by her former husband and was also possessed of property of her own, both real and personal. Before their marriage a settlement was entered into, by which her real property, amounting to about 2007. per annum, was secured to the wife's separate use for life, and then to the issue of this marriage with Talbot; and 8007. was settled on her daughter by the first marriage, the interest to be applied to her maintenance, and the principal to be paid to her at the age of 21; and if she died before she attained that age, then the interest of this sum was to belong to the mother for life, and on her death the principal to go to her children by Talbot: so that, by this settlement, provision was made for his wife and the children by his second marriage; and it does not appear to me materially to vary the case, whether the provision was out of the husband's or out of the wife's property.

On the 15th of November 1827, Richard Talbot died leaving his second wife pregnant, and also one child by her. His four children by his first marriage likewise survived him. His will of 1812 he left in an uncancelled state, in his own possession, in his iron chest; and though he might talk of making, he never had made, a new will, nor taken any measures for that purpose. The question then is, whether this will of 1812 was revoked by his second marriage, and by the birth of issue? Now marriage and birth of children have never been held to be an absolute revocation; never more than a presumptive revocation, and the presumption may, under all the circumstances, be either not raised or repelled. The principle is this, that marriage and the birth of issue create such a change in the condition of the deceased, such new obligations and duties, that they raise an inference that a testator would not adhere to a will made previous to their existence, considering it an act of moral duty to revoke that disposition, in order to make provision for his new wife and new issue: but, on the other hand, if there does not arise such a state of circumstances as to produce new duties, if the change is provided for, there is no reason to presume a revocation. The question, after all, is one of presumed intention-whether to die intestate, or, notwithstanding the change of circumstances, to leave the former will existing and effective.

Here is a settlement providing for his second wife, and providing for the issue of his second marriage; that settlement must take effect notwithstanding the will and in exclusion of the children of the first marriage, while the property of the second wife must go to her own children; and if the deceased shall be held to be dead intestate, she and her children would share with the children of the former marriage; she, as widow, would take one third, and her two children a third of the remainder; that is, in addition to the settlement, they would take five ninths of the whole between them; excepting the realty, which forms the greater part of the deceased's property, and would go to his eldest son.

Under these circumstances there is no breach of moral duty-no neglect of new obligations in adhering to the former will. I am then of opinion that no presumptive revocation did take place: the marriage and issue were provided for by the settlement; the previous acts therefore

repel the presumption. And to me it seems that this view is in no way altered by the parol evidence. The deceased might have thought of making a new will, or of increasing his wife's jointure; and if he had used a part of her property, might intend to make her some compensation; but there is no reason to suppose he intended to die intestate. Inasmuch then as there is a provision regularly made for the second wife and her issue, I am of opinion that the will of the 19th of December 1812 is valid; and I accordingly pronounce for it. Costs out of the estate were decreed.

CONSISTORY COURT OF LONDON.

ASTLEY v. ASTLEY.-p. 714.

In a suit for separation à mensâ et thoro, the wife's adultery being fully established, but she having, on a recriminatory allegation, proved facts antecedent to her adultery, from which the Court necessarily presumed the husband's adultery, this amounts to compensatio criminum, and the wife is entitled to be dismissed. Semble, going to a brothel, and remaining alone for a considerable time in a room with a common prostitute, is sufficient evidence from which to infer adultery. A married man going to a brothel, knowing it to be a house of that description, raises a suspicion of adultery necessary to be rebutted by the very best evidence.

Slighter acts will bar than will found an original suit.

A single act of adultery is sufficient to bar the husband's remedy.

THIS was a suit of divorce brought by Sir Jacob Astley, Baronet, against Georgiana Caroline Astley, his wife, by reason of her adultery. The parties were married on the 22d of March, 1819; and cohabited together till the elopement of Lady Astley with Captain Garth, on the 24th of July 1826.

A libel having been admitted, an allegation, on the part of the wife, charging Sir Jacob Astley with improper familiarities and adultery with abandoned women, was also admitted. The second, third, and fourth articles of this allegation, to which the witnesses, relied upon by the Court, deposed, were, in substance, as follows.

2. That in March 1826, Sir Jacob and Lady Astley (being resident in Leicester during the hunting season) went in an open carriage to the race-ground to witness a race, in which a horse of Sir Jacob's was to run; that Sir Jacob, leaving Lady Astley in the carriage, walked on the course with Mrs. Richardson, Lucy Burbridge, Charlotte Spawforth, and Mary Ann Webster, women of abandoned character; that he conversed immodestly with them, and drew up the petticoats of Burbridge, upon which a fear was expressed that Lady Astley would see and observe what passed: that after Sir Jacob had returned to Lady Astley's carriage, he sat at the back part of it, and kissed his hand to the women, and said "Girls, I will be with you at night, and I will give you a treat.”

3. That in the evening of the same day, Sir Jacob introduced into a dining-room of the Bell Inn at Leicester, several women from the

street; that he gave them spirits and wine, after which he and the women made so much disturbance, and their conduct towards each other was such, that the women were sent out of the house.

4. That on the next evening Sir Jacob, accompanied by some gentlemen, went to Richardson's; that he gave her money to procure wine and spirits for Burbridge, Spawforth, Webster, and other women who were present; that he continued in company with these women for some time; that indecent familiarities passed between him and Lucy Burbridge, and at length they retired to a bed-room, in which they were alone for about half an hour (with the door locked on the inside) when they committed adultery.

Upon the depositions taken on these pleas, the cause was argued by the King's Advocate, Phillimore, and Addams for Sir Jacob Astley; and by Burnaby and Dodson contrà.

The libel was admitted to be fully proved; and the only question raised was, whether the evidence on the allegation was sufficient to establish the guilt of the husband.

JUDGMENT.

DR. LUSHINGTON.

This is a suit promoted by Sir Jacob Astley, baronet, against his wife, Lady Astley, for separation by reason of her adultery. The marriage of the parties in 1819, their subsequent cohabitation, and the birth of children, are admitted to be fully established: nor is any objection raised to the proof of the adultery with which Lady Astley is charged. It is perfectly clear that in July, 1826, she quitted the house of her husband in Grosvenor Street, and eloped with Captain Garth, with whom her cohabitation is very distinctly proved and admitted. There is no question, therefore, that Sir Jacob Astley will be entitled to the remedy he prays, unless the recriminatory allegation of Lady Astley-for she has replied to this suit, not by denying her own adultery, but by charging her husband with a similar offence-is so proved as to call upon the Court to dismiss her from all further observance of justice.

It is unnecessary to consider the terms upon which the parties lived previous to the month of July 1826; there is nothing sufficiently established in the cause to enable the Court to form any judicial opinion on this point, anterior to that period.. In the beginning of the year 1826, these parties went to Leicester; and it is, during their residence in that town, that Sir Jacob Astley is accused of having there formed a connexion with divers women of bad character; of resorting to a house of ill fame, and of committing adultery. This is the substance of the charge. There are other accusatious of a minor nature, but they are of weight only as tending to corroborate those of a graver character.

The evidence, in respect to these charges, in part consists of the testimony of Mary Richardson, who kept this house of ill' fame, and of three common prostitutes. Now the testimony of these witnesses requires the most vigilant and accurate examination; for, independent of their character, their manner of giving evidence, and their mutual contradictions, ought to put the Court on its guard where their depositions are not confirmed by more credible testimony. There is throughout their examinations a manifest disregard of truth. The discrepancies are numerous and have been pointed out. It is quite impossible to look at the testimony of Mary Richardson without perceiving that she has deposed with very little sense of the obligation of an oath; and, as to the three

other women, they would probably be as willing to bring their evidence to market, as they were ready to offer their persons to sale. But there is, in addition, the testimony of other persons of a very different description, upon which the Court can more safely rely.

The facts appear to be as follows: It is proved that Sir Jacob Astley had asked one of his acquaintance, a witness in the cause, to show him the house of Mary Richardson; and that he went there. It is clear that nothing criminal took place on the occasion of that visit; but, at the same time, it must not be forgotten that Sir Jacob Astley was then perfectly aware of the character of this house. The next fact is an occurrence on the race-course on the day of the race. It is impossible to reconcile all the evidence on this point; but it is sufficiently proved, that Sir Jacob Astley said to the three women, to whom I have already referred, "If I win the race, girls, I will give you a treat to night." The evidence also establishes, that Sir Jacob Astley, while on the race-ground, hooked up the petticoats of a woman of a bad character. None of these acts import the degree of criminality necessary to debar the husband from the relief he prays; yet they ought not to be left out of the consideration of the Court, because they show that, even at that time, he had some acquaintance with these women.

The decision, however, in this case, must depend on the occurrences which took place at the house of Mrs. Richardson, either on the evening of the race, or on the evening after. This part of the case is proved by three gentlemen, associates of Sir Jacob Astley: leaving out of consideration the testimony of the other witnesses. It is proved that Sir Jacob Astley went to Mrs. Richardson's from a dinner-party at the Bell Inn; that he went up stairs with one of the women, and that he remained alone with her at least a quarter of an hour. These facts are demonstrated: they are undenied and undeniable. It has been urged that the going to this house was unpremeditated and accidental, and was in order to protect one of the party who had been assaulted. This may be possible; yet I cannot help thinking there was something in the nature of an anterior appointment on the race-course; or, if the visit were unpremeditated, it would lead me to a conclusion that Sir Jacob Astley had been at this house on more than one occasion, as asserted in the evidence of the women. I am not, however, disposed to conclude positively, either that this visit was in pursuance of an actual engagement, or that it was accidental. I take the fact as I find it-that Sir Jacob Astley was there, and remained alone in a room with a woman of notorious character for a considerable space of time, as already stated: and on this state of facts the questions are; first, whether or not a legal presumption of the commission of adultery arises; and secondly, supposing that it does arise, whether it is sufficient to bar the husband of the remedy he now seeks?

It cannot be denied that Sir Jacob Astley could not have a more ample opportunity of committing an act of adultery than at a house of ill fame, and alone, at least for a quarter of an hour, in a room with a common prostitute.

If these facts are not sufficient to raise a presumption of adultery, what facts would be sufficient? All the probabilities unite in this conclusion, that Sir Jacob Astley would not have placed himself in this situation except for a criminal purpose. But even if the conviction of the Court did not lead it to that inference, there are authorities which bind it to conVOL. III.

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clude that, in such circumstances, adultery has been committed. In Eliot v. Eliot, mentioned by Lord Stowell in Williams' case, [1 Consistory Reports, 302. See also Popkin v. Popkin, infra, (Supplement) notis.] it was held, "that a woman going to a brothel with a man, furnished conclusive proof of adultery." Now, if a married man goes to a brothel, he being perfectly aware of the nature of the house, I will not say that it does not supply an equal presumption of guilt as in the case of a woman; but supposing the Court not inclined to push this presumption so far as to hold the proof conclusive, still it cannot be denied that such conduct furnishes a violent suspicion-a suspicion that must be rebutted, if rebutted it can be at all, by the very best evidence.

Now what is the evidence to rebut the suspicion in the present case? As to the testimony of Lucy Burbidge, with whom Sir Jacob Astley was shut up, it is impossible that the Court can give any credit to her denial: she is a witness not to be listened to; and in respect to the opinion of the three gentlemen, who were also in this house at the time, that no act of adultery was committed, it is, I apprehend, the duty of the Court to draw its own conclusions, and not allow itself to be led away by the abstinence of the witnesses. In Elwes v. Elwes, 1 Consistory Reports, 278, Lord Stowell said: "If the facts are of such a nature as justifiably, and almost necessarily, lead to a conclusion of guilt, the scepticism of a witness, even if it really exists, signifies nothing. The Court, representing the law, draws that inference to which the proximate acts unavoidably lead; and therefore if the witnesses, even in this case, hesitated, and paused about drawing that conclusion, I should not conceive myself, in any degree, limited by their hesitation." To this opinion I entirely accede; and it does appear to me that the circumstances of this case raise so strong a suspicion of adultery, that it is scarcely possible to be rebutted by any evidence; but, manifestly, not by the evidence before the Court. And when I consider that Sir Jacob Astley is the party proceeding against his wife for a divorce, and that this matter is merely recriminatory, and set up to bar his remedy, I also feel myself bound by the reference, in the argument, to the case of Lord and Lady Leicester; [cited in Forster v. Forster, 1 Consist. Rep. 153. See also, Durant v. Durant, infra, (Supplement.) D'Aguilar v. D'Aguilar, ibid., and Beeby v. Beeby, ibid.] "that where adultery is pleaded by way of recrimination, and as a bar, it is not necessary to prove such strong facts, as are required to convict the other party." It was said, this is a loose doctrine; I will not stop to consider it, but shall pass it with this observation; that the doctrine has received the sanction of Lord Stowell, and is binding on this Court. I am, then, of opinion, that the charge against Sir Jacob Astley is sufficiently established. If, however, he is really innocent, I can only regret that he has voluntarily exposed himself to such an accusation; but if a man will associate with common prostitutes, as Sir Jacob Astley is proved to have done, whether he be guilty or innocent, every court of justice must, I think, come to the same conclusion to which I have arrived in this case.

The only remaining question is, whether, as there is no proof of further adultery, the husband is debarred by this single act from the remedy he seeks?

Many arguments have been urged as to the hardship that Sir Jacob Astley will incur from the refusal of a sentence of separation: but this is an inconvenience which he has brought upon himself, and which the