PIERCE SOMERSET BUTLER v Right Hon. H. E. Butler, Viscount Mountgarret

• Jurisdiction: Ireland
• Judgment Date: 26 January 1856
• Date: 26 January 1856
• Court: Exchequer (Ireland)

Exchequer.

PIERCE SOMERSET BUTLER

and

Right Hon. H. E. Butler, Viscount Mountgarret.

Inhabitants of BramleyENR 6 T. R. 330.

Goodright v. Moss Cowp. 594.

Sussex Peerage caseENR 11 Cl. & Fin. 85.

Berkely Peerage caseENR 4 Camp. 401.

Banning v. GriffinENR 15 East, 293.

Reilly v. FitzgeraldUNK 6 Ir. Eq. Rep. 335.

Walker v. Countess of BeauchampENR 6 Car. & P. 552.

Davies v. Lowndes 6 Man. & Gr. 520.

Shields v. BoucherENR 1 De G. & Sm. 40, 50.

Monkton v. The Attorey-GeneralENR 2 Russ. & M. 155.

Mosely v. DavisENR 11 Price, 162.

Campbell v. TwemlowENR 1 Price, 81.

Lord Trimleston v. KemmisENR 9 Cl. & Fin 749, 780.

Sussex Peerage caseENR 11 Cl. & Fin. 102.

Davies v. LowndesUNK 7 Scott, N. R., 141, 214.

Rex v. BurdettENR 4 B. & Ald. 95.

Trimleston v. Kemmis Ubi sup.

DerryENR 12 Cl. & Fin. 642, 665.

Negent v. Bantry 2 H. & Br. 156.

Graham's case 2 Lew. Cr. Cas. 108.

Aveson v. KinnairdENR 6 East, 188.

Piers v. PiersENR 2 H. L. C. 363, 375.

Jolly v. M'Gregor 3 Wils. & Sh. 179, 194.

Morris v. DaviesENR 5 Cl. & Fin. 240, 242.

Doe v. Allen 4 Per. & D. 220.

Rouch v. Great Western Railway 4 Per. & D. 686.

Rex v. EriswellENR 3 T. R. 719.

Shields v. Boucher Ubi sup.

Rawson v. HaigENR 2 Bing. 99.

Ridley v. GydeENR 9 Bing. 349.

Rex v. WatsonENR 1 Camp. 215.

Rex v. BurdettENR 4 B. & Ald. 95.

Davies v. LowndesUNK 7 Scott, N. R., 141.

Malpas v. ClementsUNK 19 L. J., Q. B., 435.

Goodtitle v. MilburnENR 2 M. & W. 853, 860.

Archangelo v. ThompsonENR 2 Camp. 620.

Rex v. Hensey 1 Bur. 646.

Whitlock v. WatersENR 4 C. & P. 376.

Figg v. WeddiburnUNK 6 Jur. 518.

Rex v. ErithENR 8 East, 539,

Pendrell v. Pendrell 2 Stra. 925.

Goodright v. Moss Cowp. 591.

Doe v. RandallUNK 2 M. & P. 20.

Rex v. EriswellENR 3 T. R. 709.

Walker v. Countess of BeauchampENR 6 C. & P. 650.

Reilly v. Fitzgerald Dr. Rep. 152.

Whellock v. Baker 13 Ves. 514.

Slaney v. WadeENR 7 Sim. 595; S. C., 1 M. & Cr. 338.

The Tracy Peerage caseUNK 10 C. & F. 154, 181.

Lord Trimleston v. KemmisUNK 9 C. & F. 776.

Irish Society v. Bishop of DerryUNK 12 C. & F. 665.

Bartlett v. SmithENR 11 M. & W. 483.

Goodtitle v. MilburnENR 2 M. & W. 853.

Sinclair v. BaggallyENR 4 M. & W. 312.

Anderson v. WestonENR 6 Bing., N. C., 296.

Potez v. GlossopENR 2 Ex 191.

Rex v. Plumer Russ. & Ry., C. C., 266.

Fletcher v. Braddyl 3 Star. Rep. 64.

Archangelo v. ThompsonENR 2 Camp. 622.

Stocker v. CullenENR 7 M. & W. 516.

Reilly v. FitzgeraldUNK 6 Ir. Eq. Rep. 335; S. C., 1 Drury, 122.

Berkeley Peerage caseENR 4 Camp. 401.

Reilly v. FitzgeraldUNK 6 Ir. Eq. Rep. 342.

Davies v. LowndesUNKUNK 7 Scott N. R. 141; S. C., 7 M. & G. 471.

Rex v. ErithENR 8 East, 539.

Shields v. BoucherENR 1 De G. & S. 50.

Rishton v. NesbittUNK 2 M. & R. 554.

Leader v. BarryENR 1 Esp. 353.

Read v. ProsserENR 1 Esp. 214.

Leader v. BarryENR 1 Esp. 353.

Doe v. FlemingENR 4 Bing. 266.

Doe v. GriffinENR 15 East, 293.

COMMON LAW REPORTS. 77 H. T. 1856. Exchequer. PIERCE SOMERSET BUTLER v. Right Hon. H. E. BUTLER, Viscount Mountgarret. Jan. 26. Tam was an ejectment on the title, tried at the Kilkenny Spring H. B., in Sep tember 1811, Assizes, March 1855, before Mr. Serjeant Berwick and a special contracted a regular marri- jury. age with Miss Thequestion involved in the case was the legitimacy of the de- 13., during the lifetime of a fendant, whom the plaintiff contended to be illegitimate, by reason Mrs. C., with whom the of his father Henry Butler having been, at the time of his marriage plaintiff al- leged that H. with defendant's mother (a Miss Harrison), already married to one B. had previ ously contract. Mrs. Colebrook ; and this alleged prior marriage was the point of ed an irregular Scotch mar-dispute. riage. Lady The following were the facts of the case :-The late Earl of 00, a member H. B.'s family, was produced by plaintiff, to prove that before she heard of the regular marriage of H. B., she had heard from members of the family of his Scotch marriage; that evidence was objected to by defendant as hearsay evidence, and not falling within any of the exceptions to the rule excluding such evidence.-Held (Floor, C. B., dissentiente), that the evidence was properly rejected. A letter of the 26th of September 1816, from S. B., a brother of H. B., to P. B., the father of H. B., in which S. B. mentioned a statement made to him by H. B., on the subject of the Scotch marriage, was offered in evidence, and rejected.-Held, that the letter was properly rejected, as not being within the class of declaÂÂrations which, in matters of pedigree, are admissible ; also as a declaration clearly made post litem motam. A letter of Mrs. C., with the Moffatt post-mark thereon, to a third person, of the 26th of March 1811, was offered in evidence by the defendant, as evidence that she was then at Moffatt ; and was objected to by the plaintiff, as evidence of that fact ; but the defendant insisted that it was evidence generally, and the Judge ruled that it was admissible. It had appeared from the evidence of a Scotch advoÂÂcate, at the time this letter was offered, that the fact of an irregular marriage depended on all the circumstances of the case, antecedent, accompanying and subsequent. After that letter had been received, the defendant gave evidence of the alleged Scotch marriage having occurred in April 1811. Another letter of Mrs. C. was also read in evidence, subject to objection, dated the 13th of May 1811; both letters were signed as Mrs. C.-Held, that the letter of May was admissible, as showing that after the alleged marriage, she still called herself Mrs. C. Held also (PIGOT, C. B., dissentiente), that the letter of March 1811 was admisÂÂsible for the same purpose, at the period of the trial at which it was offered, namely, before the defendant gave evidence of the alleged Scotch marriage having occurred in April. Held also (Floor, C. B., dissentiente), that the exception which objected to the admission of both letters was too wide, as one of the letters was admissible. 78 COMMON LAW REPORTS. H. T. 1856. Kilkenny died in the year 1846, seised of the estates in question, Exchequer. and without issue. He, however, had three brothers, the eldest of BUTLER whom was Somerset Butler, who died in 1826, without issue. The V. MOUNT- second, Henry Butler, was the father of the defendant, and died in GARRET. 1842 ; and the third, Pierce Butler, was the father of the plaintiff, and died in 1846. To prove the plaintiff's case; the following evidence was adÂÂduced :-first, a letter written by Henry Butler (the defendant's father) to Pierce Butler, dated the 7th of April 1823, which was as follows :- " Nunmonkton, 7th April 1823. " DEAR PIERcE-In your letter to me, dated the 20th of FebÂÂ" ruary, you say you are going over to Kilkenny to send me " the remnant of my last half-year's interest ; but as I have not " yet got it, I think it but right to inform you that your agent " (whoever he is) has not sent it. I have fought off my bills " in this country as long as possible ; and if I do not get a supply " from you I must go to quod.' In your letter you complain " of want of intellect to comprehend mine. I own I am not a " very clear and comprehensive writer ; but even with the small " share of said article which you allow yourself to possess, in which (take notice) I do not agree, as I think nature has been " most bountiful in that particular to you. The case relative to "Mrs. Harrison can be explained in a very few words, namely, " that my brother, in a conversation he had with her shortly after "my marriage, and at which time she was expressing her intention " of making me a present of a farm, advised her not to do so, " as I was a wild fellow, adding, sooner or later that there would " be a similar case to that of the Berkeley, and laid down at " the same time what he would do, were he in her place, relative "to her will, and that they had not spoken for many years. She " had such a deference for his opinion that she followed it. So " much for brotherly advice. With respect to the insinuations " you accuse me of, I deny them as such, for my letter to you " was open and downright, as I said, being one of the sureties. "I did not like the accounts standing unpassed for so many years ; COMMON LAW REPORTS. 79 " and also, when I mentioned my surprise that the estate was H. T. 1856. xch equer. " not as well, if not better, able to pay the interest of the different E BUTLER " charges now as at the demise of my father, I meant not to do v. " so by insinuation, but to assert what struck me as an extraor- MOUNT- " dinary thing, knowing that agricultural produce was lower then GARRET. " than even now. Relative to the other circumstance in yours, I " have only to say, when a Mrs. Crawford waited upon me to let " me know that Mr. Taaffe was going to hurry a thing through the " Courts of Edinburgh to foist off his wife upon me, I thought " it full time for me to prove that she had been married to " Mr. Taaffe long before I had been in Scotland ; and as all " or most of my witnesses were in France, without one shilling " to bring them over, I was obliged to pay the piper; and, to " enable me to do so, I was obliged to raise money. There is " nothing very insinuating in this letter. I shall, therefore, " conclude, with begging you to believe me most sincerely yours " H. BUTLER?' Sarah Blake, alias Stride, was then examined as a witness for the plaintiff, and stated that she had been lady's maid to Mrs. Colebrooke ; that after Mrs. Colebrooke's husband's death, in 1809, Henry Butler, the defendant's father, became acquainted with Mrs. Colebrooke at Brighton, and afterwards lived with her on terms of intimacy, sleeping with her at night in London ; that Mrs. ColeÂÂbrooke went from London late in the autumn of 1810, and went to Edinburgh, and Mr. Butler accompanied her as far as NewcastleÂÂon-Tyne, when he left and returned to England, and she went on to Edinburgh, where she took a house in...