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Colonial Cases

Williams v. Williams, 1879


Williams v. Williams

United States Consular Court, Shanghai
Bailey, 6 March 1879
Source: The North China Herald, 14 March 1879



Shanghai, 6th March.

Before D. H. BAILEY, Esq., Vice-Consul General.


   Mr. HENDERSON appeared for the plaintiff.

   Defendant conducted his own case.

   This was a wife's petition for the dissolution of her marriage with the defendant.  The evidence had been taken before a referee, and at a previous sitting of the Court, Mr. Henderson summed up on behalf of his client, and today the Court delivered judgment.

   The Court said - The libel in this case sets up several causes for divorce, but there are only two which need to be considered.  The first cause, recognized as the most [potent reason known to the law for decreeing a divorce, adultery, has been proved by such evidence as is entirely within the rule laid down by Lord Stowell.  Quoting the language of that great jurist:-

It is a fundamental rule that it is not necessary to prove the direct fact of adultery, because if it were otherwise, there is not one case in a hundred in which that proof would be attainable.  In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally, though many of them, of a more obvious nature, and of more frequent occurrence, are to be found in the ancient books; at the same time it is impossible to indicate them universally; because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case.

   The only general rule that can be laid down upon the subject is that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances, that are equally capable of two interpretations; neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man.  The facts are not of a technical nature; they are facts determinable upon common grounds of reason; and Courts of Justice would wander very much from the proper office of giving protraction to the rights of mankind if they let themselves loose to subtilities, and remote and artificial reasonings upon such subjects.  Upon such subjects the rational and the legal interpretation must be the same.

   It is not necessary, nor do I think it proper, to recapitulate the evidence in this particular.  It is sufficient to say that it all points with the strongest circumstantial certainty to adultery by the defendant.

   It is an axiom of the law that fraud vitiates a contract.  The testimony shows, and the defendant admits, that he married the plaintiff under a false name; that his name is John Curtis, but that he married the plaintiff under the assumed name of John Charles Williams.  There are all the indices of fraud here, legal and moral, misrepresentation and concealment; such fraud as both upon principle and precedent courts spurn from their threshold.  It is a fraud, a total lack of good faith, against the sanctity of that relationship of which Chancellor Kent says:-

The primary and most important of the domestic relations is that of husband and wife.  It has its foundations in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race.  In every age it has had a propitious influence on the moral improvement and happiness of mankind.  It is one of the chief foundations of social order.  We may justly place to the credit of the institution of marriage the great share of the blessings which flow from a refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts.

  Upon this enobling relationship the defendant has committed the grossest of frauds.  The case in 3rd Maule and Selwyn, cited by Counsel for plaintiff, presents the same question as to marriage under a  false name as is presented in this case; and there Sir William Scott unhesitatingly pronounced the marriage null and void for fraud.  In II, Kent's Commentaries, p. 432, the following language is used:-

A marriage procured by force or fraud is also void ab initio, and may be treated as null by every Court in which its validity may be drawn in question.

   The ground of the defence set up in the nature of a cross-libel, is habitual drunkenness of the plaintiff, a cause only recognized by special statutory regulations.  There is no such statute in operation here; and if there were, the attempt to show habitual drunkenness of the plaintiff has been most futile.  There has been no hurry allowed in this case.  The defendant has had ample time top prepare his defence and to marshal his witnesses.  His failure to show habitual drunkenness is complete.  If he had shown this phase of drunkenness, it would have had great weight in adjusting the costs.

   The marriage contract being, by the accepted opinions of mankind, more sacred than all other contracts, Courts travel with every necessary caution before annulling, in any case, the bonds of matrimony.  But while this rule of caution is to be observed, it is equally clear that for sufficient legal reasons the marital relations should be dissolved.

   In this case there is both adultery and fraud - heinous offences fatal to the peace and happiness of families - offences against law and morals, and to be reprobated in every walk of life.  Against these charges the defence shown is worse than flimsy.

   There will be entered, in favor of the plaintiff, a decree of divorce a vinculo matrimonii with costs, as provided in such cases, and she will be allowed a reasonable sum for Attorney's fees.

   Mr. HENDERSON, on the subject of Counsel's fees, quoted the divorce case of Burr v. Burr, decided by Mr. G. Wiley Wells, in which there was an allowance of $100 for costs, and argued that he thought if the opportunity was given him he could show that the defendant was much better off than he had represented himself to be.  By the line of defence he (defendant) had taken, he had caused a great deal of work and trouble, and Mr. Henderson thought that the sum of Tls. 100 would be a fair amount for the Court to allow, though he had to confess ignorance of the scale of fees charged by the legal profession in Shanghai.

   The Court, after the matter had been argued, said he would allow the decision in the case of Burr v. Burr, and allow $100.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School