case clark against PERYAM a this case be transcribe from the manuscript of Mr  salt ms a in chancery Trinity term Geo if a bill to set aside a annuity pro  ugly causan charge general that the annuitant be a lewd and infamous woman the  plaintiff may examine to particular act of lewdness and infamy S c atk the  question upon a rehear of this cause be whether a plaintiff who come to be  relieve against a annuity pro ugly causan b see Whaley v Norton vern Matthew v  Hanbury vern bainham v man vern Spencer v Hayward Prec Chan grey v rook case t  t Annandale v Harris Peer wms lady Cox case Peer wms Robinson v gee vezey  priest v Parrott vezey walker v Perkins burr hill v Spencer Amb ex part  cotterell Cowp b and charge for that purpose in the bill general that the  annuitant mrs clarke before Mr Peryams the grantors be criminal acquaint with  her be a lewd and infamous woman can examine to a particular fact as that Mr  Abingdon lie with her before Mr Peryam and whether such particular fact must  not be charge express in the bill that the party may have a opportunity to  controvert such charge and thereby have proper notice from the frame the bill  to defend herself Mr clarke argue that if a party may examine particular to  such general allegation in a bill no character can ever be safe and the party  charge with lewdness will have no opportunity of defend herself or of examine  witness to contradict such particular fact that upon general charge against  character they ought to examine general as that she be a lewd infamous woman  and not give in evidence special story of lewdness unless they have be state  in the bill that in modern report er p the court of law if you be Willing to  take away the credibility of a witness before a jury modern report you can  charge the witness with particular act of dishonesty because he have no  opportunity to contradict they and it will be a surprise upon he and therefore  you be only to speak in general that he be a man of have reputation c without  go into instance upon which you find your belief of such witness be dishonesty  have reputation c in the case of Lord and lady doneraile lady doneraile bring  her bill to have the benefit of a deed whereby three hundred pound ayear have  be give to her for pinmoney Lord doneraile the defendant put her upon the  proof of the execution and add if the deed be execute it be a imposition upon  he and obtain fraudulent and further that the plaintiff behaviour in the point  of duty and virtue to he be such as do not entitle her to relief in equity  that bill be frame like the present Lord doneraile upon this general charge  examine several witness who prove a criminal conversation especial with one Mr  Barry these deposition be read in Ireland and thereupon the bill dismiss but  as no fact in relation to her unchastity be put in issue whereby she have no  opportunity to defend herself she appeal to the lord here and the deposition  upon which the decree be find in Ireland be refuse to be read here and the  decree in Ireland reverse and as far as one can conjecture the opinion of the  lord be that particular fact be comprise in the deposition which lady  doneraile have no opportunity to object or to defend herself against and this  case be never impeach as to its authority and be very like the present one Mr  Murray argue on the same side that the case of Lord and lady doneraile be cite  by Mr clarke from the print case which be false and as he himself be counsel  in that cause in the house of peer here he cite it from the plead themselves  thus that lady doneraile charge by her bill for pinmoney that after her  marriage to his lordship she always behave herself with the utmost duty  tenderness and affection to her lord in the answer Lord doneraile deny that  she behave herself with duty and tenderness to he as become a virtuous woman  much less his wife upon this general charge what may the party give in  evidence why that she do not behave as a dutiful wife or a virtuous woman and  this sort of evidence be admit in Ireland upon appeal it be full debate in the  house of lord here and the evidence be refuse because character will be very  precarious and in great danger if such particular story be to be give in  evidence upon general allegation only and it will be impossible to make any  defence against they that the party may have express particular instance of  lewdness in the bill and it will have be expunge by the master because they be  relevant to the case and be the very fact upon which the party find his equity  as in chapman v blisset in Lord Talbot time a case tempt Talb Eq Abr a that in  indictment the fact must be state circumstantial that the party may have the  best opportunity of defend modern report himself and a indictment for murder  general be have and you can give the particular transaction of the murder in  evidence upon that general charge that in a indictment for barratry the charge  indeed be general because barratry be a compound offence and make up of many  fact but there the prisoner have a equivalent advantage to particular  description in other indictment for he have article deliver to he before his  trial which contain all the fact that be to be give in evidence against he and  thereby he have a opportunity to defend himself Mr attorneygeneral in support  of the evidence say that the case of Lord and lady doneraile be true state but  the reason of reverse the Irish decree and refuse the evidence of particular  act of lewdness be because the word virtue do not sufficient put her chastity  in issue for that word be a undeterminate one and woman have many other virtue  beside chastity and that upon such a general charge lady doneraile be not  oblige to understand it as any impeachment of her chastity though it be urge  that virtue apply to marry woman must mean chastity that none of the counsel  for lady doneraile will have think the evidence improper if the bill have  charge her with lewdness or adultery express the case of Sidney v Sidney a  Peer wms Eq Abr a beard first at the roll and afterward before Lord Talbot  upon a appeal modern report er p where the decree of the master of the roll be  affirm be thus mrs Sidney bring a bill against her husband to have the benefit  of some marriagearticle in relation to fall timber Mr Sidney insist by his  answer that she ought not to have what she pray because of her misbehaviour  and misconduct towards he as a wife and upon this charge Mr Sidney give in  evidence act of unchastity with two or three person particular the be tumble  down a Welsh mountain and kiss c and the counsel for Mr Sidney in order to  have this evidence read argue that the word in the bill be a sufficient  impeachment of mrs sydney chastity and put her adultery in issue the master of  the roll after great consideration be of another opinion and refuse the  evidence to be read upon this there be a appeal to Lord Talbot who be of  opinion the word be too general to put mrs sydney chastity in issue but it be  never doubt that if it have be sufficient put in issue but that such evidence  may have be read Mr attorney say be cite this from his memory only and be not  sure whether he state the very word of the bill that case be not like that of  a suit in the spiritual court for a divorce a month et thoro for there  particular instance must be insert in the plead if a person bring a bill to  set aside a deed for fraud general the plaintiff may give in evidence  particular act of fraud without charge they special in the bill modern report  the case of indictment be very foreign be for criminal prosecution where the  party be to have all advantage he be in danger of his life or some bodily  punishment at commonlaw a man may plead that he be seize in fee general and  yet may give any deed in evidence to prove such seize without enumerate such  deed and may carry his title through several descent and the other side have  no notice of this before the trial and he may object that if he have have  notice be may have go into evidence against it upon this rehear the court  think the objection to be a point worth consider of and accord the cause be  order to stand over and at the seal of Lincoln inn hall after Trinity term  that July his lordship deliver his opinion Hardwicke Lord chancellor this  evidence ought to be read and it be proper do so upon the original hear the  objection which be make against it be that the particular fact of lewdness to  which the witness depose be not sufficient put in issue by the plead in order  to consider this question it will be necessary to see what it be that be put  in issue by the plead what it be that the witness be examine to and what be  the nature of the present suit with regard to the nature of the suit this be a  bill which be bring by the plaintiff to have a satisfaction for a bind whereby  Mr Peryam agree to pay the plaintiff a annuity of sixty pound for the life of  the annuitant not to commence however till Mr Peryams decease and the bill be  bring in order to have a satisfaction for this bind out of his personal asset  there be a crossbill bring by the defendant whereby it be pray that this bind  may be deliver up the consideration thereof be a turpis causan for that mrs  clarke the plaintiff to the original bill be a woman of a lewd life and  conversation and treat therefore this be such a bind as ought to be relieve  against the manner in which this lewdness be charge in the crossbill be that  whether clarke be a lewd woman and of a infamous character before Zachariah  Peryam become acquaint with her and it be insist on by the plaintiff in the  original bill that under this general allegation the plaintiff in the  crossbill be not entitle to examine to anything but to the general character  of whether clarke concern lewdness the foundation of this objection be that it  be impossible for a person to be prepare to answer particular fact until they  be specify in the plead and the counsel for the plaintiff have liken the  present case to the general rule of law concern examination to the character  of witness or to the character of party it have be say that a general  character indeed both of witness and party person may be suppose to be able to  support though nothing be hint at in the plead even in a general manner  against they but that particular fact they can be suppose to be able to give a  answer to unless those very fact be express enumerate in the plead but  notwithstanding this objection I be of opinion in the modern report present  case that the plaintiff in the crosscause be well entitle to examine to the  particular act of modern report er p lewdness commit by whether clarke and in  order to determine this point I shall consider the authority upon this subject  and then endeavour to show how they be support by the reason of the thing the  first case of this nature be in vern there the word of the book be the master  of the roll say that there will be a difference in these case between a  contract execute and executory and that this court will extend relief as to  thing executory which if do it may be may stand but as that case be he see no  ground to relieve the plaintiff nothing appear to he but that it be a free and  voluntary gift without anything of a turpis shrinking and in case it have be  so we know that Adam be punish though tempt by eve because he will be tempt  that if it have be charge in the bill that the defendant be a common strumpet  and common deal and practice after that sort and use to draw in young  gentleman in such case be think it reasonable to relieve and the plaintiff  have in that cause prove as much but the defendant counsel oppose the read to  that matter by reason it be not charge in the bill nor in issue in the cause  so they pray liberty to amend their bill and to charge that special matter pay  the cost of that day and of the deposition take in the cause by this case it  plain appear that the apprehension of the court and the counsel there be that  if the lewdness of a plaintiff be put in issue in the plead evidence may be  give of particular act of lewdness for all that be insist on there be that the  lewdness of the plaintiff be not put in issue the next case which be proper to  be mention be that of Atkins v far a S c atk a determine in this court the  twentyeighth of February there the charge in the bill be something to the same  effect as in the crossbill in the present case and notwithstanding the bill be  in that general manner evidence be give of special act of lewdness with  different person and no objection be make to the read that evidence and to the  like purpose be the case of Robinson v Cox determine in this court the  thirteenth of July b ante b another case cite at the bar be that of Sidney v  Sidney that case come first of all to be hear at the roll before sir Joseph  Jekyll in who take time to consider of it but by mean of some accident or  other do not give judgement in it till that be a bill bring by mrs Sidney  against her husband the present earl of Leicester in order to have a agreement  carry into execution which he have enter into with her in bar of this relief  there be two thing which the defendant insist on in his answer the one of  those be that the plaintiff have not offer by her bill to perform her part of  the article and the other that she have much misbehave herself and that he be  force to leave her the defendant enter into proof and produce evidence that  she have be guilty of adultery on the hear of modern report that cause a  objection be make that the evidence ought not to be read his honour take time  to consider of it and on the twentyseventh of February be deliver his opinion  with regard to the first part of the defence which be make by the answer he  lie that out of the case for his opinion be that the court may take care that  she shall perform her part of the agreement as well as that he shall perform  his but as to the other defence his opinion be that the evidence ought not to  be read and the reason which he give for it be that the answer have not put  the charge of adultery in issue for though it be swear by the answer that the  plaintiff have misbehave herself and that the defendant be force to leave her  yet his honour say she may misbehave herself in various way without be guilty  of adultery this opinion of the roll be undoubted a right one for certain the  charge of lewdness must be allege in a general manner in order to let in  evidence of this sort the principal authority which have be rely on by the  plaintiff in the present case be that of Lord and lady doneraile that be a  cause in the court of chancery in Ireland and from the decree there a appeal  be have to the house of lord here in that be a bill bring by lady doneraile  against Lord doneraile who be her husband and one allegation in the bill be  that she have all along behave herself with duty tenderness and affection  towards her lord to this bill the defendant put in his answer and thereby  among other thing insist that she have not behave herself with that duty  tenderness and affection as become a virtuous woman much less his wife after  put in this answer the defendant examine his modern report er p witness and  prove that she have be guilty of a criminal conversation with Barry that cause  come on to be beard in the court of chancery in Ireland where this evidence be  allow to be read from that decree a appeal be bring to the house of peer here  where a objection be make that that evidence ought not to be read and the  house be of opinion it ought not I be not present in the house of lord when  they give their opinion but from what appear by the print case there be  something to distinguish that case from the present one for there it be allege  that in the case of Lord doneraile there be not even a general charge of  adultery or incontinency in lady doneraile the plaintiff for there may be many  other instance wherein a wife may be guilty of the want of virtue towards her  husband without the act of unchastity which circumstance distinguish that case  from the present one for here the general charge of lewdness be express allege  this be as much as necessary to be observe with regard to the authority and  precedent of the court and it appear thereby that it have be the uniform sense  of the court that it be sufficient to make a general allegation of lewdness in  order to let in particular proof of it and if the contrary be necessary it  will be a mean of have such fact insert in bill and answer as will tend to  great indecency modern report I shall in the next place consider how these  case be support by the reason of the thing and as to that it seem in itself to  be a thing that be reasonable that upon such a general charge the party shall  be allow to give evidence of particular act of lewdness by the ordinary rule  of law a prosecutor be not allow to give evidence in support of the character  of his witness unless the other side produce some evidence in order to impeach  their character if indeed the defendant do give such evidence that be consider  as a challenge to the prosecutor to support their character but these rule  concern evidence to the character of witness or party hold only in those case  where the question concern the character come in collateral from the evidence  and do not arise from the face of the plead and where that be the case there  seem to be a very good reason why the court shall be cautious in allow of  evidence which be relative to character but where the question concern  character do not arise collateral from the evidence but be point out by the  plead the objection of surprise in a great measure cease a case have be put at  the bar of a indictment of barratry find against a attorney it have be say  that the method in that case be not to describe the particular act which  constitute the barratry in the indictment but that instead thereof the  prosecutor give in article to the defendant contain the particular act of  barratry which he intend to give evidence of and from thence a argument have  be draw that upon such a general charge as be in the present case the party  ought not to be admit to give in evidence those particular fact which she have  do and it be indeed true that that be the rule relate to the indictment of  barratry but that be a singular case and the foundation of it seem to be that  it be often pretty nice to distinguish what amount to the barratry and what do  not and therefore that the party may be better prepare in order to show what  they do do not amount to it article of this sort be to be deliver but that  case be not like the present one and that which show that the reason of these  article arise from the particular nature of barratry be that in other  indictment which be equal general article of this sort be not necessary to be  give as in indictment for keep a common bawdyhouse the charge be as general as  that of barratry and yet there article of this kind be not require and yet the  prosecutor be allow to give in evidence particular fact of person resort to  the house for such lewd purpose so where a issue be try relate to a person be  non compos the party be not confine to give general evidence of the other  insanity but he may give particular act of it in evidence and the like rule  hold where a issue be direct concern another be of a weak understanding and  the same of drunkenness these thing show that there be such a distinction  which have be mention videlicet that where the charge be put in issue though  in a general manner particular fact may be give in evidence in order to  support it but where the matter come in only collateral from the evidence it  can for these reason I be modern report of opinion that the evidence in the  present case ought to be read and the decree affirm modern report er p