clark V periam periam V clark from a ms report by Lord chancellor Bathurst in  the writer possession case in which it seem to Lord Hardwicke sufficient to  put in issue the general charge of lewdness in order to admit proof of  particular act this bill be bring against defendant as she be administratrix  of Zachariah periam her late husband to have satisfaction for a annuity secure  to the Cooper t Cottonham er p plaintiff by bind out of Mr Periams asset the  defendant by her answer insist that the plaintiff be keep by Mr periam as his  mistress and that she be a woman of have character and therefore the crossbill  be bring in order to have Cooper t Cottonham the bind deliver up and for that  purpose the crossbill charge that before her acquaintance with Mr periam the  plaintiff be a Cooper t Cottonham lewd woman of a infamous character which be  deny by the answer in order to support the charge in the bill one Roger be  examine who depose nothing as to her general character but that she be a lose  woman as he believe for that he have see her at one Mr abington lodging where  he have see very indecent familiarity between they and that Mr Abington tell  he he have lie with her and that she be a excellent bedfellow and that he  believe Mr Abington keep her as his mistress to the read this evidence it be  object by the counsel for the plaintiff in the original bill that the general  character be put in issue that alone can be examine to and that under such a  general charge particular act of lewdness and incontinency ought not to be  show because by so put the matter in issue the plaintiff be deprive of a  opportunity of give a answer to they and it will be very inconvenient to allow  such general charge to be support by evidence of particular act the lord  chancellor in order to determine this question the nature of this suit be to  be consider the equity for relief against this bind be that it be give in ugly  causan in regard the plaintiff be a woman of the town and to support the  objection the case of witness and of defendant in criminal prosecution have be  rely on but I be of opinion that this case differ from those and all the other  mention of examination into general character where evidence Cooper t  Cottonham tie of particular fact have be refuse I will begin with take notice  of the authority mention the first be Whaley v Norton vern in that case the  master of the roll say that if it have be charge in the bill that the  defendant be a common strumpet and that she common practice after that sort  and use to draw in young gentleman he think it reasonable to relieve and it be  say that the plaintiff in that cause have 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 and they pray liberty to amend their bill and charge  the special matter pay the cost of the day I do it mention this as a authority  but as it show the apprehension of the court and the bar in that case for it  only mention charge her be a common strumpet and not the particular fact as  necessary to introduce the evidence the next be two case which come before I  Atkins v far Cooper t Cottonham and Robinson v Cox the case of alkins v far be  in Cooper t Cottonham there it be only charge that she the plaintiff be a  woman of a Cooper t Cottonham base and infamous behaviour Robinson v Cox see  this case Mod and ante page be last year there it be only charge that she the  defendant be a woman of bad fame and draw in r Robinson to give the note yet  in that case I find by look into the note the plaintiff enter into the most  particular fact of her behaviour this objection be not then indeed make but  that show it be look upon as the common manner of charge it Sidney v Sidney be  the next which be argue in but the master of the roll do not give his opinion  in it till the year Sidney v Sidney be now report p will there the bill be  bring Cooper t Cottonham by the wife for a specific performance of article the  defendant in his answer charge that she have much misbehave herself and that  he have be force to leave her and the master of the roll be of opinion that  deposition charge her with adultery ought not to be read but his reason be  because the answer have not put the charge of adultery in issue and certain it  have not for she may misbehave herself many way beside that as by game or  extravagance the next be the case of Lord and lady doneraile doneraile v  doneraile see before page which be a appeal from Ireland before the house of  lord in February there the defendant charge that the plaintiff have not behave  herself with duty and tenderness to he as become a virtuous woman much less  his wife and what give a ground for this be that she have as a merit in her  bill charge that she have always behave herself with all duty affection and  tenderness to her lord the defendant have enter into proof of her commit  adultery with one Barry and that evidence have be admit to be read in Ireland  and be make one of the reason for the appeal and as adultery be not Cooper t  Cottonham er p put in issue for chastity be not certain the only virtue a  woman may possess the lord do right to refuse it however I think there be some  difference between the case of a wife and a keep mistress because by admit  herself to be keep she have lie a foundation for the charge but in the other  case where the man have think proper to marry the woman the charge ought to be  more particular from these case it seem sufficient to put in issue the general  charge of lewdness in order to admit proof of particular act otherwise the  plead must be stuff with matter very indecent in a court of justice and it  will be necessary to fill they with scandal upon particular person not concern  in the cause and which may not after be prove the case argue from must be  admit to be law as if there be a criminal prosecution the prosecutor cant  enter into defendant character unless defendant begin with call to his  character and then he cant examine to particular fact so as to witness you can  only enter into the general character the reason be because that be only  collateral matter and not put in charge at all and therefore the person cant  be presume to come prepare to answer it but compare this to other case where  general character be put in issue and there court of law admit such evidence  one case except videlicet that of common barrator but that be general against  person who act as Cooper t Cottonham attorney it be a very nice thing and  depend upon variety of fact to draw the line between act only in his  profession and as a barrator but that do not hold in other case as in  indictment for keep a disorderly house or gaminghouse particular fact be prove  under the general charge and this be the general rule in all case where the  general behaviour or circumstance of mind be the thing in issue so where  weakness or drink be charge to show a liableness to be impose upon I think  therefore that the distinction be that wherever the general behaviour be put  in issue evidence of particular fact may be admit but wherever it come in  collateral it be otherwise I be therefore of opinion that this evidence ought  to be admit and to determine otherwise will be lie down a rule productive of  inconvenience not easy to be foresee the evidence a be read and decree for set  aside the bind affirm and chief on that evidence note this be a rehear of the  chancellor own decree clark v periam periam v clark l c July this case be also  report atk and and modern where it be state to have be transcribe from the ms  of Mr salt it be insert here chief from the circumstance of its author have  become Lord chancellor two work have be ascribe to Lord Bathurst the one  entitle the theory of evidence and the other sometime entitle the institute of  the law of trial at nisi prius and sometime entitle a introduction to the law  relative to trial at nisi prius Lord Bathurst be not name by Horace Walpole in  his catalogue of royal and noble author Lord orford work vol I and park  Walpole royal and noble author vol vo brook in the library law England part  two p after notice that the theory of evidence exhibit a very scientific  distribution and comprehensive system of that important branch of the practice  of the law add this work it be general understand be afterward engraft by the  learned author into another upon a collateral branch of the practice and  entitle a institute of the law of trial at nisi prius which have be since  considerable extend and enlarge by the addition of numerous authority on the  same subject by one of the present learned judge of the court of king bench  under the more general title of a introduction to the law relative to the  trial at nisi prius Mr Selwyn in the preface to his nisi prius eight edit do  not mention the theory of evidence but after notice that it cold not fail to  excite surprise that welldigested treatise on the law of action remain for so  great a length of time desideratum in the profession he add that it be not  until the year that a anonymous compilation the first deserve any notice  entitle a introduction to the law relative to trial at nisi prius be publish  the same work be republish by the late Mr I buller in the year although the  title page be silent as to this be a second edition yet from a examination of  the content it appear Cooper t Cottonham er p very clear that Mr I bullers  book be mere a republication of the anonymous treatise publish in it be very  remarkable that at this day so many different opinion shall exist as to the  real author of this compilation some person ascribe it to Mr ford other to the  late Mr I clive and other to Mr Bathurst unquestionable it be the receive  opinion at the bar upon the first appearance of this work that it have be  compile by Mr Bathurst create Lord Apsley in he become earl Bathurst on the  death of his father in September for his own private use but the dedication by  Mr buller to Lord Apsley prefix to the edition in which must have escape the  notice of those person who have so confident ascribe this work to a different  author place the question beyond the reach of controversy that dedication  express recognize this treatise as owe its origin to a collection of note  former make by Lord Apsley for his own private use the writer have have no  opportunity of inspect any edition of bullers nisi prius of a early date than  neither that edition nor any subsequent edition which the writer have see  contain the dedication to Lord Apsley mention by Mr Selwyn to be prefix to the  edition of the edition of be in quarto and purport to be the second edition  with large edition another edition of the same work appear in in octavo thus  entitle a institute of the law relative to trial at nisi prius original  publish in the year a new edition with alteration and addition by Arthur  Onslow Esq BarristeratLaw there be prefix to Mr Onslows edition the follow  advertisement this work be first publish in the year without the author name  and afterward republish by Mr justice Bullery with addition under the title of  a introduction to the law relative to trial at nisi prius the number of modern  case not insert in any edition of this work be the editor motive for this  undertake the theory of evidence be state in clarke library law to have be  print in octavo in this be seven year after Lord Bathurst have be appoint a  judge of the court of common plea the early edition of bullers nisi prius  mention in the same work be Bridgman in his legal bibliography p after mention  the theor of evidence publish in octavo and the institute of the law of trial  at nisi prius print in seven part say that the former exhibit a scientific  distribution and comprehensive system of the law of evidence be general  understand to have be afterward en graft on the latter and be considerable  extend and enlarge by the addition of numerous authority on the same subject  it be publish by the late learned judge sir Francis buller Bart under the more  general title of a introduction to the law relative to trial at nisi prius  this introduction continue Bridgman be follow by the institute of Arthur  Onslow Esq of the law relative to trial at nisi prius original publish in and  again in Lord Campbell say life of the chancellor vol v page that Lord  Bathurst have industrious make a sort of digest of the rule of evidence and  the point general arise at the trial of action and that this be afterward  enlarge by Mr justice buller and publish under the name of bullers nisi prius  Lord Campbell quote no authority Vernon add and of the deposition take in the  cause Whaley v Norton be beard in by the master of the roll sir John Trevor if  the order be make then the order of the house of lord in Filkin v hill ante  page will not at least as to one part of it altogether want a precedent Atkins  v far be report atkins the follow report of the case be take from the Joddrell  ms mention in Lord Campbells life of the chancellor vol v p Lord Campbell say  that Joddrell often do more justice to Lord Hardwicke than atkins or vesey  senior plaintiff bring billcase be that defendant in enter into a bind to  plaintiff condition to pay plaintiff pound if he do not marry plaintiff in  twelve month recite in the condition that plaintiff and defendant have agree  to marry bill suggest that defendant come to visit plaintiff about twelve  month after give the bind take the bind from her defendant by answer admit the  give the bind but say that come to visit plaintiff about twelve month after  and some difference arise between they she plaintiff voluntary give he up the  bind plaintiff die her mother as administratrix revive the suit for defendant  it be Cooper t Cottonham er p object saint that this bind be give upon a  illegal consideration ex ugly causan and dly that plaintiff do not prove or  suggest that she be ready or offer to marry defendant Mr Noel for defendant  cite key v Bradshawel vern Mr brown for plaintiff defendant do not insist on  plaintiff not offer to marry nor upon his own be ready to marry or that  plaintiff be in any default in that respect but put it upon the infamy of her  character but nothing of this prove and if plaintiff have sue at law she will  not have be oblige to plead a tender of marriage he that enter into a bind to  pay money be to tender the money and we be deprive of our legal remedy by the  act of the defendant lord chancellor here be two question saint whether  plaintiff have any original equity to come into this court for relief and dly  whether upon the circumstance here plaintiff have lose that equity as to the  first here the plaintiff on all the circumstance as to this bind be proper in  come here and the loss of the bind be a foundation of equity because at law  plaintiff can proceed without a profert in curian and here be a affidavit  annex to the bill as to the loss of the bind as usual next whether sufficient  proof of the content of this bind objection the proof of the defendant get the  bind by force by one witness only and defendant swear it be deliver fair but  the ground of objection as to one witness of oath against oath of defendant be  not the present case plaintiff entitle here to make oath herself of the bind  be in defendant band so here be two oath beside the defendant do admit the  have the bind and this amount to a confession and a attempt at avoidance and  though but one witness to prove defendant confession of take the bind by force  yet that be corroborate by another witness that defendant propose to give a  new bind but objection as to the collateral circumstance to bar plaintiff  equity and objection that this a legal demand and here not proper averment and  l c agree that be so but hold there be sufficient averment and if plaintiff  have declare at law it will have be only on the bind and the payment or excuse  must come on the part of the defendant and defendant must have plead  performance or excuse the excuse must have be that be offer to marry plaintiff  and she refuse it be not say in the condition that he be to marry her on  request but he be to do the first act and the nature of these contract be that  the man shall make the first offer unless express agree otherwise objection  here no compulsion on plaintiff to marry defendant if he have request but the  condition recite a agreement by both to marry and this under his hand  objection this bill for a penalty but the condition state the damage and what  be to be pay objection as to the character and behaviour of the woman if that  have be prove that she after turn whore there it will have be foundation for  relief here or at law if on a simple contract that may be give in evidence for  she be in fact become another woman and l c have know but one penny give in  such case and the same reason will hold here where the promise be by specialty  to give relief here no evidence of such a character of plaintiff or any  imposition on defendant and if plaintiff be induce to any have compliance yet  that no head of relief against the bind unless she be prove to be before  profligate and many case on this bead and no pretence or at least no proof of  that here the casein Vernon be upon its be a unreasonable agreement and  presume imposition wherefore decree for plaintiff that defendant pay the pound  and interest from bill file and cost when the writer first read now some year  ago Joddrells report of this case of Atkins v far it immediate bring to his  mind Mr Wests description of Lord Hardwickes notebooks Mr west say that Lord  Hardwickes notebooks general contain the statement of the case the evidence  and the argument of counsel and frequent during the argument of counsel the  answer to their argument which be enclose within bracket Joddrells report of  Atkins v far when attentive consider contain just what one may expect to find  in Lord Hardwickes notebook the case the evidence the argument of counsel and  the answer to those argument all set down with brevity but not with a brevity  which to a lawyer be obscure Atkins v far do not fall within the period  embrace by Mr Wests volume the original bill and answer in Atkins v far be  print in plead in equity illustrative of Lord Redesdales treatise by Mr  Walpole Willis page and Lord Campbell say life vol v p in the note that none  of Lord hard Cooper t Cottonham er p wicks judgement be print until after he  have resign the great seal this be not strict correct Lord Hardwicke resign  the great seal in sergeant barnardiston report of case determine in the high  court of chancery from April that to may that folio be publish in it be  singular that in the same note Lord Campbell after state the date of the  publication of the first and second volume of atkins and of the first edition  of vesey sen and that at that time ms note be much quote express enumerate  Barnardiston and also strange among the reporter of Lord Hardwickes decision  publish subsequent strange become solicitorgeneral in Geo two his report come  down to Geo two he be make master of the roll Geo two he die in and his report  be publish by his son in in vol folio who dedicate they to the earl of  Hardwicke Lord high chancellor these report therefore be print before Lord  Hardwicke have resign the great seal the case during the period of Lord  Hardwickes chancellorship commence Vol two at page and continue to page be the  end of the report there be not a single chancery case among they the chancery  case in strange be few in number and be scatter through Vol I and the early  part of Vol two they be all of a date prior to Lord Hardwickes chancellorship  strange give many decision of the court of king bench when Lord Hardwicke be  chief justice but Lord Campbell be speak of chancery decision Lord Campbell  also state that the first volume of atkins come out in the first volume of  atkins do not appear till it be but just to the memory both of the chancellor  and of the reporter to recollect that it be not until after the death of Lord  Hardwicke that atkins apply to he the follow singular apt quotation  Illius  vita many men to be preeclarisque reminder ad all men memory commendata ?Nee  yes silebi admirable quoadam et incredible ac pwne of a god he in law to  explain oequitate clearly knowledge nor for that to greater extent law  consulius how justitioe to be the chancery case during the time of Lord  Hardwicke which now form part of the nine volume of the collection know by the  name of modern report be not print until Mr leech the editor give the follow  account of these case he say in the nine volume will be find a additional  collection of case in the court of chancery during the time of Lord Hardwicke  from Michaelmas term in the that year of George the second to Trinity term in  the that of George the second these case fill two hundred and eightythree page  be ninety in number and fiftytwo now for the first time report they be all of  they except the last thirteen print from a collection of manuscript case  preserve in the library of the late Samuel salt Esq of the Inner temple they  appear to have be take with great accuracy and many of they bear the author  name which be print as it appear in the original manuscript the last thirteen  case in this volume be kind send to the editor through the hand of one of the  proprietor of the work by Charles butler Esq of Lincoln inn the ensue be a  copy of a lose paper find among the ms of sir Thomas clark m r it will be see  that he be the lead counsel for the defendant Mr Murray be the junior counsel  for the defendant the curious reader may compare it with the note of Mr  Murrays argument in atkins and modern the bill charge that before Zachariah  periam become acquaint with whether clarke she be a lewd woman and of a  infamous character it charge only her lewd life and conversation and seek on  that ground to be relieve against the bind under such a general charge against  character the witness ought only to have be examine general and not to a  particular fact as that Mr Abington lie with whether clarke before Mr periam  if special and particular story of lewdness be to be give in evidence when not  state in the bill the party charge with lewdness will have no opportunity of  defend herself she can not examine witness to contradict particular story  unless the same be state in the bill the plaintiff may have express the  special instance of lewdness in Cooper t Cottonham er p that bill and they  will have be relevant and the master will not have expunge they not be express  in the bill it be a surprise upon the party to allow evidence of they to be  read a party never can be prepare to answer particular Cooper t Cottonham fact  unless specify in the plead this be the ground why in court of law if you wish  to take away the credibility of a witness you can only examine as to his  general character and can go into particular act of dishonesty evidence of  particular fact will be a surprise upon he and he will have no opportunity of  contradiction he may be ready without notice to show a good general character  but not to answer as to particular matter it be so with regard to other case  where court of law go into evidence of character in indictment the evidence as  to the prisoner character be always general Whaley v Norton Atkins v far  Robinson v Cox Sidney v Sidney doneraile v doneraile in indictment general the  particular fact be state in order to give the prisoner good opportunity of  defend himself barratry be a exception but the defendant have a equivalent  article be deliver to he before the trial contain all the fact to be give in  evidence against the prisoner the prisoner therefore know all that be to be  bring against he under the general charge of barratry in the indictment