The Earl of Belfast v Chichester and Attorney General
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 1820 |
| Date | 10 February 1820 |
| Court | High Court of Chancery |
English Reports Citation: 37 E.R. 696
HIGH COURT OF CHANCERY
See Davis v. Angel, 1862, 31 Beav. 231; Ellice v. Roupell (No. 2), 1863, 32 Beav. 314, n., and cases there collected; Wiltes Peerage Claim, 1869, L. R. 4 H. L. 148.
696 belfast (earl of) v. uhichester zjac. &w. 4*0. The Earl of belfast v. chichester and attorney general. Feb. 10, [1820]. [See Davis v. Angel, 1862, 31 Beav. 231; Ellice v. Roupell (No. 2), 1863, 32 Beav. 314, n., and cases there collected ; Wiltes Peerage Claim, 1869, L. B. 4 H. L. 148.] A dignity is entailed on A., who dies, leaving issue two sons, B. and C. To a bill filed in the life-time of B., by his eldest son, for perpetuating evidence of his father's marriage. Demurrers by the eldest son of ., who was dead, and the Attorney General, were allowed. Whether a court of equity has jurisdiction to entertain a bill filed to perpetuate testimony in support of a claim to a dignity. Qu. The issue " in tail cannot fife a bill to perpetuate testimony, even in the case of an entail that cannot be barred. Semble. On the 1st of July 1790, the Right Honourable Arthur Chichester, who was the fifth Earl of Donegal and Viscount Chichester in the kingdom of Ireland, was created Baron Fisherwick, of Fisher-wick, in England. The title was descendible to the heirs male of his body. He was afterwards created Marquis of Donegal and Earl of Belfast in Ireland, and died in 1799, leaving two sons, George Augustus, now Marquis of Donegal, and Spencer Stanley, commonly called Lord Spencer Stanley Chichester. In August 1795, the presentMarquis intermarried with Anna May, now Marchioness of Donegal, and there were issue of the marriage the Plaintiff, the eldest son, and six younger sons, who were infants, and were made Defendants. Lord S. S. Chichester died, leaving two sons, the Defendants, Arthur Chichester and George Chichester. The bill, after mentioning these facts, stated, that upon the death of the Marquis of Donegal, the Plaintiff would become entitled to the several dignities before [440] nien-tioned, and especially to the dignity and title of Baron Fisherwick ; and that the Defendants had lately set up a claim to that title, pretending that the Marquis and Marchioness did not lawfully intermarry before the birth of the Plaintiff; that Arthur and George Chichester alleged all the issue of the Marquis and Marchioness to be illegitimate ; while the six younger sons alleged that a valid marriage took place subsequently to the Plaintiff's birth, and that they, or some of them, were the lawful issue of the marriage. These allegations, and the pretences in support of them, were met by various charges tending to prove the Plaintiff's legitimacy. The hill also stated, that the Attorney General made some objections to the validity of the marriage, and that he intended to dispute the Plaintiff's right to the barony in case he survived his father. It prayed that the Plaintiff might be at liberty to examine witnesses to prove that the marriage was valid in perpetuam rei memoriam, and that their testimony might be perpetuated, so that the Plaintiff might have the full benefit thereof, against the Defendants and the Attorney General for the time being, in any proceedings in the High Court of Parliament respecting the right to the title and dignity of Baron Fisherwick, or otherwise relating thereto. To thia bill the Defendants, Arthur Chichester and the Attorney General, put in general demurrers. Mr. Wetherell and Mr. Blake in support of the first demurrer. This is a bill of the first impression ; it seeks to perpetuate evidence of a, right which cannot be enforced. Every claim to a peerage is addressed to the king, and legally speaking, the evidence to be perpetuated must be laid before him. His Majesty now, almost ex debito justitioe, refers the claim, by the advice [441] of the Attorney General, to the House of Lords ; but still it is in his discretion to do so or not, and in some cases this course has not been pursued. Assuming, however, that it will be adopted in this case, ths House refers the title to a committee of privileges, and it cannot be known whether it will be guided in the investigation by the rules of other courtSt The first principle of these committees is, that they are not bound by the rules of law, or even the advice of the judges, which is only taken for their information ; they decide upon their own views of the case, and upon principles which they think just, and although they frequently adopt, they are not bound by the general rules of evidence. It may be said, that the crown being represented by the Attorney General, the committee, after what took place in the Berkeley case (4 Campb. 419), would admit this evidence ; but this Court will not allow a bill to perpetuate evidence, unless it is to be offered to some court which must accept it. In other cases, the courts to which the evidence is tendered are bound, if the witnesses are dead, to 2 JAO. & W. 442. BELFAST (EARL of) V. CHICHESTER 697 receive it; they have no discretion. But in this case, neither the king, nor a committee of the House of Lords, is bound to pay, and the Court cannot know whether they will give, any attention to it. It is quite an anomalous proceeding to...
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