England Examples of Civil Causes and Suits (National Institute)
The original content for this article was contributed by The National Institute for Genealogical Studies in June 2012. It is an excerpt from their course English: Court Records-Criminal, Civil and Ecclesiastical by Dr. Penelope Christensen. The Institute offers over 200 comprehensive genealogy courses for a fee ($).
Some Civil Causes/Suits
A tort is a civil wrong or injury for which an action for damages may be brought.
A suit or cause is the legal prosecution of a claim, or an action in a law court.
Bankrupts and Debtors
Bankruptcy, the legal declaration of a debtor’s insolvency, was heard from 1813-1831 in courts of commissioners appointed by the Lord Chancellor. After this, those in the London area were dealt with by two judges of the Chancery division, and elsewhere by county courts, which took over all proceedings in 1847. County records should therefore be with the Clerk of the Peace records in county archives. Proceedings before 1710 can be found in the records of King’s Bench, and after 1710 in the Court of Bankruptcy, both at TNA (Bevan). Notices of every adjudication were published in the London Gazette (indexed since 1690), Perry’s Bankrupt and Insolvent Gazette and in a local paper.
Sometimes people avoided paying their debts by moving out of the country for a while, such as to Boulogne, France (Marten). Further information on bankrupts can be found in Researching English Lists, Insurance, Annuity and Business Records, Cole 2001a and 2002, and Astling’s detailed account of one family’s experiences.
Defamation is the publication (issuing, not necessarily writing) of a statement which tends to damage the good reputation of a person.Slander is a defamatory statement made in a transitory medium, generally speech. Libel is the publication of a defamatory statement in a permanent form such as print, pictures, writing, theatre, film and television. (Note that the term libel is also used in a different sense for the written case of a plaintiff in an ecclesiastical court.)
Defamation cases could be heard in either church or secular courts, both civil and criminal. Most actions were brought in civil law where the statement must be false. However in certain cases defamation could be tried in criminal courts and the truth of the statement was no defence for publishing it! (Cale).
Prior to 1858 the dissolution of a valid marriage could only be effected by death unless you were wealthy enough to afford an Act of Parliament. Various ways of separating partners in unsatisfactory marriages did take place through:
- Church courts by declaration of:
Nullity, rendering the marriage void from its beginning, any children illegitimate and the wife disentitled to dower.
- Annulment which protected the children’s legitimacy and the wife’s dower rights.
- Divorce a mensa atthoro (from bed and board) was a separation granted on grounds of adultery and/or life-threatening cruelty.
- Common law courts by private separation in which a private deed between the husband and the wife’s trustee (women were not persons then) provided for the children, and legal and maintenance provisions for the wife. Details of location of records can be found in TNA research guide L43. Separation through such deeds continued well into the 20th century until divorce on the basis of incompatibility was available.
- Informal custom including:
Desertion of wife and children; they then becoming chargeable to the parish. Quarter Sessions records have applications for relief of deserted wives. It was generally assumed that a seven-year desertion allowed remarriage, although if the errant partner returned the first marriage took precedence.
- Perhaps co-habitation or illegal remarriage (bigamy), some were prosecuted in the courts but many remained undetected by the law.
- Wife sale, a public but not legal, form of separation which transferred responsibility for the wife to another. Occasional reports may be found in Quarter Sessions records or in local newspapers.
- Full divorce a vinculo matrimonii (from the bans of matrimony) by Act of Parliament which allowed both partners to remarry. It was useful to those with large amounts of property which they wished to safeguard, particularly those whose first wives were barren. The first such act was in 1670, and there were only 317 of them. It pays to keep an eye on auction houses as papers do appear there, for example the four-page 1778 Act to dissolve the marriage of Thomas Darby, late of Feckenham, clerk, with Mary his wife, to enable him to marry again was offered on this website for £22.
- Criminal Conversation was a civil suit of King’s Bench or Common Pleas often carried out at the same time as an ecclesiastical divorce a mensa et thoro prior to a full divorce by act of parliament. Reports of such suits can be found in The Times newspaper for which there is an index 1790-1980 on CD.
On 11 Jan 1858 the new Court for Divorce and Matrimonial Causes started its work in London, being reformed as the Probate, Divorce and Admiralty Division of the Supreme Court of Judicature in 1873. It was still too expensive for most people until the 1920s when legal aid and provisions of courts in other towns meant that ordinary folk could benefit. Post-1857 divorce records include:
- Decree nisi - an order for a divorce which contains the cause.
- Decree absolute - the final divorce paper.
- Case papers which include the petition, copies of relevant certificates and affidavits, and of the decrees nisi and absolute. They don’t all survive, especially since 1938, and there is a 30-year closure period.
Information on how to use the indexes is given in TNA research guide L44 and certified copies of decrees, (specify if you need the decree nisi as well as absolute), can be obtained for a fee from the Principal Registry of the Family Division, Decree Absolute Section, First Avenue House, 42-49 High Holborn, London WC1V 6NP. The index of divorce and matrimonial causes 1858-1903 is also available on findmypast (for fee) website and Blatchford has a useful article.
Camp (Marital Discord. Family Tree Magazine Vol 16 #6, page 17-18, 2000) has good articles on marital discord and divorce indexes (Divorce Indexes at the Family Records Centre. Family Tree Magazine Vol 18 #4, page 9-11, 2002). Newspapers typically revelled in reporting the details of local divorces, an example is shown below.
Chart: Newspaper Report of Divorce
[from The Times Digital Archive 1785-1985]
| The Times, Friday 8 May 1964. pg 27, issue 56006, col A.|
High Court of Justice: Probate, Divorce and Admiralty.
DISCRETION WITH RELUCTANCE
DASHWOOD v. DASHWOOD
Before Judge Baxter
His Lordship granted Mr John Dashwood of Elvaston Place, SW7
insurance broker, a decree nisi of divorce against Mrs Susan
Boylen Duncombe Dashwood of Pitts Head Mews, W1 on the
ground of desertion. The Court’s discretion was exercised in the
husband’s favour in respect of adultery admitted by him.
The husband is the younger son of Sir John Dashwood Bt, premier
baronet, the wife being daughter of Countess Howe.
Mr Joseph Jackson appeared for the husband. The suit was
undefended, the wife being unrepresented.
His Lordship, giving judgment, said that the marriage took place in
November 1959. There were no children. At the time of the
marriage the husband was 30 and the wife 19. In December 1960
the wife left the husband. The husband did not want the wife to
leave him and hoped that she would come back. She did not come
back. After the separation the husband entered upon a course of adultery.
The wife knew of that, but his Lordship did not think that it
affected her desertion, although the parties continued to meet and
had met as recently as last night.
His Lordship was now asked to exercise discretion in the
husband’s favour. He has submitted a discretion statement and a
supplemental discretion statement which disclosed a perfectly
disgraceful state of affairs. He was quite indifferent to any
marriage promises or vows that he ever made and it was rather
difficult to see precisely upon what ground the Court could
exercise discretion in his favour. He had said that the wife had no
desire to remarry. His Lordship was not certain whether it would
be desirable, in view of his attitude, that the husband should remarry.
Mr Jackson had urged upon his Lordship that the marriage had
completely broken down and that is was in the public interest that
it should be dissolved. With the greatest possible reluctance,
therefore, his Lordship would exercise discretion in the husband’s
favour. There would be a decree nisi.
Solicitors: Messrs Stephenson, Harwood and Tatham.
Information in this Wiki page is excerpted from the online course English: Court Records-Criminal, Civil and Ecclesiastical offered by The National Institute for Genealogical Studies. To learn more about this course or other courses available from the Institute, see our website. We can be contacted at firstname.lastname@example.org
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