>' Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST. DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 8638.A3 1858 Reports of cases decided in the ecclesia 3 1924 017 855 184 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924017855184 REPORTS OF CASES. REPORTS CASES DECIDED IN THE ECCLESIASTICAL COURTS doctors' Commons. By JAMES PARKER DEANE, D.C.L., IN CONTINUATION OF Dr. ROBERTSON'S REPORTS, VOL. I. LONDON : WILDY & SONS, LINCOLN'S INN ARCHWAY, CAEEY ST., LAW BOOKSELLERS AND PUBLISHERS. 1858. SUMFIELD & JONES, PUINTEHS, WEST nACDlNG STBEET, PETTEE Li.SE. PREFACE. The first number of this volume, as far as page 265, was edited in 1856 by my friend Dr. Deane himself. Some weeks since he gave me the manuscripts, consisting chiefly of the judgments, which he had provided for the second number. I have freely used and added to these materials, in order to complete the volume, which brings the series of ecclesiastical reports to within a few weeks of the date when the jurisdiction of the Ecclesiastical Courts in matters testamentary and matrimonial was abolished by the 20 & 21 Vic. chapters 77 and 85. Though under these statutes the form of proceeding is very much varied, and the Court for Divorce and Matrimonial Causes wields an ampler authority than the Ecclesiastical Courts have, pro- VI PBEFACE. bably, ever exercised ; yet, for principles which will be acted upon in a majority of instances, there can be little doubt that the series of reports, of which this is the con- cluding volume, will for many years to come fm^ish im- portant precedents. M. C. MERTTINS SWABEY, Doctors' Commons. April 30, 1858. TABLE CASES REPORTED. Alford V. Alford (by her Committee). — Prerog. Administration — Widow and next of kin — Com- mittee of lunatic widow - - Page 322 Anon. — Consistory. Impotency — Responsive allegation — Pleading - 295 Anon. — Consistory. Practice — Decree for inspection - - 333 Ash, A. M., in the Goods of. — Prerog. Incorporation of papers - - - 181 B. Baynes v. Harrison. — Prerog. Creditor — Administration - - 15 Bremer v. Freeman and Bremer. — Prerog. Will — Domicil by the law of nations — Domicil by the law of the country in which the testhtor resides — Costs - - - - - 192 TABLE or CASES REPOBTED. Campbell v. Campbell. — Consistory. Divorce a mensa et thoro — 17 & 18 Vic. c. 47 — Practice — Condonation — Delay - - 285 Cockayne, C, in the Goods of. — Prerog. Revocation — Intention — ^Newv^ill unexecuted - 177 CoUett, H. P., in the Goods of. — Prerog. Executrix during widowhood — Executors according to the tenor .... 274 Cooper, P. A., in the Goods of. — Prerog. General probate — ^Practice - 9 CrutweU and Others v. Clancy (in the Goods of Alfred Brettle, deceased). — Prerog. Will — Appointment of executors and trustees — Codicil — Partial revocation - - - 310 D. Dadds, Ann, in the Goods of. — Prerog. Will — Revocation under 20th section of Wills Act - 290 Davidson v. Davidson. — Consistory. Adultery — Attachment — Criminal intention — Op- portunity — Interrogatories — Credit of witness - 132 Denison v. Ditcher. — Arches. Clerk in holy orders — Limitation of time in cri- minal proceedings under 3 & 4 Vic. c. 86 - - 334 Dyce Sombre v. Troup, Solaroli (intervening), and Prinsep, and the Honourable East India Company (also intervening). — Prerog. Capacity — Concealed delusions — Medical evidence — Commission of lunacy — Burden of proof - 22 E. Ernest v. Eustace. — Prerog. Administration — ^Practice — Judgment and simple contract creditors - - . - 271 Ewen V. Franklin and Others. — Preroff. Testator's signature — Subscription of witnesses - 7 TABLE OF CASES REPORTED. IX Farmer v. Brock. — Prerog. Evidence — Corroborating facts — Witness dis- credited - - - - 187 Foot V. Stanton. — Prerog. Execution — Capacity — Evidence - - 19 Fyler v. Fyler. — Consistory. Husband and wife — Separate income — Costs - 175 G. Greata, W., in the Goods of. — Prerog. 15 & 16 Vic. 0. 24 — Operative signature — Words below signature - . - - 266 H. Hakewell, Emma, in the Goods of. — Prerog. Unexecuted paper — Incorporation - • 1 4 Harmar v. Harmar. — Consistory. Permanent alimony — Practice — Deduction - 282 Herbert v. Herbert. Prerog. 1 Vic. c. 26, s. 11 — Actual military service - 10 Hunt V. Hunt. — Arches. Husband and wife — Adultery — Non-consummation of the marriage — Medical evidence - - 1 2 1 J. Jenkyn v. Jenkyn. — Consistory. Adultery — Pleading — Action for goods supplied to the wife after she had left her father's house - 268 Jones, W., in the Goods of. Prerog. Execution — Acknowledgment - - 3 Leach, Sarah, in the Goods of. — Prerog. Administration with will annexed — Practice — Executors of representative of executrix — Legatee - 294 Lowe V. Lowe. Consistory. Cruelty — Practice — Answers - - 130 TABLE OF CASES REPORTED . M. Mackenzie, D., in the Goods of. — Prerog. Administration with the will annexed — Form of grant in Scotland varied as to the effects of the de- ceased in England - - - - 17 Maddock v. Allen. — Prerog. Will — Unattested paper — Reference to by subse- quent duly executed codicil - - - 325 N. Norton v. Bazett. — Prerog. 1 Vic. c. 26, s. 9 — Subscription in the presence of testator - - - 259 O. Osborne, Thomas, in the Goods of. — Prerog. Probate — Foreign law — Practice - - 4 Page V. Donovan and Hankey. — Prerog. Will— Execution— 15 & 16 "Vic. c. 24 - - 278 Pembroke, The Countess Dowager of, in the Goods of. — ^Prerog. Incorporation of papers - - -182 Poyer, John Poyer, in the Goods of. — Prerog. Residuary legatee — Executor — Revocation of ap- pointment - - - - 184 R. Rainer, Peter, in the Goods of. — Prerog. Administration with will annexed — Administra- tion bond — Inventory and account - - 317 Kudall V. Warren (by his Guardian). — ^Prerog. Will — Void devise and bequest attending it — Gift over — Administration ... 306 TABLE OF CASES REPORTED. XI S. Shilling, James, in the Goods of. — Prerog. 1 Vic. c. 26, 3. 33— Survivorship - - 183 Spratt V. Spratt. — Consistory. Surgeon — Suit in forma pauperis - - 276 Steinworth, Ellen, in the Goods of. — Prerog. Administration — Nominee of Crown — Creditor - 270 Stracey, Sir Josias Henry, Bart., in the Goods of, and Diana Stracey, his wife. — Prerog. Joint will — Practice - - - G T. Tonar, John, in the Goods of. — Prerog. Executor — Revocation of appointment - 267 w. Webb, Jane, in the Goods of. — Prerog. 1 Vic. c. 26, s. 9 — Subscription of witnesses in the presence of each other - - - 1 Welch, Jonas, in the Goods of. Will — Codicil — Date of will misrecited in codicil - 314 REPORTS OF CASES ARGUED AND DETERMINED IN THE ECCLESIASTICAL COURTS AT doctors* Commonsi* PREROGATIVE COURT OF CANTERBURY. In the goods of Jane Webb. On Motion. 1855. Nov. 7th. Jane Webb, onthelSthof March, wrote and signed where the her will, and on the 13th of May following she exe- nesses sub- cuted it, by acknowledging this signature in the pre- inVhe presence sence of A. and B., both present at the same time ; b„f„Vun1he' immediately after which B. left the room, and during P''®^®"{^^g°' ^■^^^ her absence, but in the presence of the testatrix, execution is A. subscribed the will as a witness. In a short i vie. c. 26, time B. returned to the room, in which A. and the deceased still were, and B. then subscribed the will as a witness in the presence of the deceased and of A. Deane moved for probate of the will. The 1 Vic. c. 26, s. 9, does not, in terms, require that the witnesses shall subscribe in the presence of VOL. I. B / 2 CASES DETERMINED IN THE 1855. each other. It would appear from a passage in the Nov. 7th. report of Casement v. Fulton, 5 Mo. P. C. C. 140, inthT^dsof *hat the Privy Council considei-ed a joint presence wbbb. requisite at the time of subscription ; but there is probably an error in that part of the report, for in a case which followed immediately afterwards {Faulds V. Jackson, 6 N. C. 8upl. 1), their Lord- ships held the wUl to be well executed though the witnesses did not subscribe in the presence of each other. And in Chodwich v. Palmer, 12th of July, 1851, a case which has not been reported, Sir H. Jenner Fust, referring to this passage in Case- ment V. Fulton, said, " That dictum has not been acted upon and received as the true interpretation of the statute in this Court. Cases have occurred in which the witnesses have not signed in the pre- sence of each other, yet the Court has decided that the statute was complied with." And he held the will in that case well executed, though the witnesses had not subscribed in the presence of each other. Sir John Dodson. I was at first inclined to take a different view of this case, but upon the authority of Chodwich v. Palmer, I will grant this motion. Probate decreed. PREROGATIVE COURT OF CANTERBURY. In the goods of William Jones. On Motion. 1855. Nov. 7th. William Jones left a will which was drawn up Execution by from his instructions, and read over to him in the aeknowiedg- presence of J. and E. The deceased expressed his ^|nature." approval of it and signed his name at once, and before W., one of the subscribing witnesses, had come into the room ; but when that witness came in, he stiU held the pen, and E., who had assisted the testator by holding a book on which the will was placed for him to sign, he being in bed, still held the book and the will in his hand. Imme- diately on W.'s entering the room E., in the pre- sence and hearing of the deceased, said that the paper he held in his hand was the deceased's will, and asked W. to sign it, which he did in the pre- sence of the deceased, who watched him in doing so. E. then wrote his name under that of W., upon which E. said to the deceased, " Will that do?" to which the deceased replied, " Yes." The deceased died the same day. The property left was under £100 in this country, and about £200 in Aus- tralia. Addams moved for probate of the will as having been executed by a virtual acknowledgment of the signature by the deceased, in the presence of two witnesses. B 2 CASES DETERMINED IN THE ^^^^- Sir John Dodson. Nov. 7th. I think that, from the facts of the case, what In the goods of was Said and done by the testator amounted to Jones. ^^^j^ ^^ acknowledgment as will satisfy the pro- visions of the Act of Parliament ; but had the property not been so small, I should have directed the will to be propounded. Under the circum- stances, however, I decree probate to the executor. In the goods of Thomas Osborne. 1855. Nov. 16th. Probate of several papers (one written after the death of the testator) granted as to- gether con- tainin^hiswill, on proof of the Law of the Domicil. On Motion. This deceased was a natural-born British subject, but he had resided in Spain for many years, had married a Spanish woman, and continued to reside and carry on business there till his death. He was never naturalized as a Spaniard. After his marriage, and when he had two chil- dren, he executed an instrument conferring' on his wife the power of making and extending his will, instituted his then two children his heirs, and ap- pointed his wife executrix. Subsequently, when he had five children, he executed, before the British Yice-Consul at Port St. Mary, a paper described on the face of it as a codicil to his will, appointing his wife executrix, and instructing her to dispose of his property among his five children. PREROGATIVE COURT OF CANTERBURY. After the death of the deceased, in February, 1855. OSBOKNE. 1854, the widow appeared before the Captain- Nov. leth. General of the Province in which the deceased had jntiiT^odsof resided, and produced a copy of the codicil, and prayed that the then five children might be de- clared heirs. The Captain-General having so de- creed, she, in June, 1855, appeared before a notary at Port St. Mary, and, in accordance with the power, and the codicil, and the decree of the Captain- General, made and extended the will of the deceased, and thereby instituted the five children of the deceased as his heirs, and assumed the office of executrix of the will. An affidavit of an advocate of the national tri- bunal of Spain was read, from which it appeared that by the law of Spain one person may, by an instrument in writing, direct another to make a wUl for him after his death, in conformity with the contents of such written instrument, and that the Captain-General of the Province had juris- diction over the civil afiiairs of all foreigners resi- dent therein ; and the Court was moved to decree letters of administration, with the three papers (that is, the power, the codicil, and the extended will) annexed, to the attornies of the widow. Sir John Dodson. The domicU should have been established by affidavit ; but the long-continued residence in Spain is, in the circumstances of the case, sufficient to let in the law as stated by the affidavit which has been read. The administration may therefore go as now prayed. CASES DETERMINED IN THE In the goods of Sir Josias Henrt Stracey, Bart., and Diana Stracet, his wife. 1^^^- On Motion. Dec 3d. Joint will. Sir J. H. Stracey, and Diana Stracey, Ms wife, ™'""*' made a joint will, dated the 25th of April, 1850. Lady Stracey died in June, 1854 ; Sir J. H. Stracey died on the 6th of November, 1855, without having altered or revoked the will. The will was enclosed in a sealed envelope, endorsed in the handwriting of Lady Stracey, " The will of J. H. Stracey, Esq., 1850." After her death, one of the daughters asked Sir J. H. S. whether the wiU was to be opened ; he said, " No, not in his lifetime, as it might give rise to unpleasant feelings." Lady Stracey had a power of appointment by wUl over certain property ; and Sir J. H. Stracey had, as survivor, a power of ap- pointment over other property, independent of his general property. The will commenced, "We, Josias Henry Stracey and Diana Stracey, do hereby declare this to be our last will ; and after the payment of all our just debts and funeral expenses, we direct that all our monies," &c. Certain bequests were then given to their children ; and there wias an appointment of executors of " this our joint wiU." The attestation clause described the will to have been "signed by the said J. H. S. and D. S. in our presence, who, in their presence, &c., have hereunto affixed our sig- natures as witnesses to this their will." wife. PEEEOGATIVE COURT OP CANTERBURY. 7 Deane moved the Court to decree probate of the 1855. paper, as the last will and testament of Diana Dec. 3d. Stracey, to be granted to the executors, limited to in thTgoods all such personal estate and eflFects as she, the said °^ ^hbney *^' D. S., had a right to appoint or dispose of ; also, to Stracey, decree a special general probate of the said paper, as Stkacby, hie the last will and testament of Sir J. H. S., to the executors. Hobson v. Blackburn, 1 Add. 274, is adverse to mutual wills, but, if it has any bearing upon the present case, shows the validity of & joint will like the one now before the Court. Sir John Dodson. I think you are entitled to the prayer of your motion. Hobson v. Blackburn, when examined, is certainly not an authority against you. The paper should have been proved as the will of Lady Stracey upon her decease, but that cannot affect the right of the executors now. EwEN against Franklin and Others. 1855. On admission of an Allegation. Dec. 3d. This case came before the Court upon the admis- larly drawn up sion of an allegation propounding a paper as the waa^igned by last will and testament of James Stares, propounded a^^ aTs'o wwo by Mr. W. Ewen, and opposed by an executor under witnesses in •'..'■'•'••' the margin of a prior will. the first four sheets; but in the fifth and last sheet the signature of the deceased alone appeared, — Held, that the witnesses had not subscribed the wQl. CASES DETERMINED IN THE 1855. Dec. 3d. E-WEN against Fkanklin and Others. In April, 1846, the testator gave instructions to ' his solicitor, who accordingly prepared a will, which was read over to the testator, at the solicitor's office; hut the testator declined to execute it there. The solicitor gave him full verbal instructions how to proceed, and made pencil marks indicating where the signatures of the testator and the witnesses should be placed. The will was written on five sheets of paper ; at the bottom of each of the first four sheets appeared the testator's signature in ink, above his name, penciled beforehand by the solicitor ; on the margin of each of the first four sheets appeared the subscriptions of the witnesses. On the fifth and last sheet was a testimonium clause, expressing the testator's intention of executing the paper by placing his name on each sheet, and his name and seal at the end. The testator's signature followed opposite a regular attestation clause; but the witnesses had not written their names on any part of the fifth sheet. Both mtnesses were dead; and no other person, apparently, was present at the execution. Declarations of the testator as to the execution, and that the death of the witnesses would make no dif- ference, were pleaded in the allegation, the admis- sion of which was opposed. Addams and Spinks, for different parties, opposed the admission of the allegation. Jenner and Twiss contra. PREROGATIVE COURT OF CANTERBURY. Sir John Dodson. I think the signatures on the first sheets were intended merely to guard against other sheets being interpolated ; that the testator's signature at the end of the paper is that which the Court must consider as intended to give validity to the whole instrument, and consequently that is the signature which ought to have been attested. In the Goods of Chamney, 1 Rob. 757, it clearly appeared that the signatures on the back of the paper were intended to attest the sole signature of the testator; whereas, in the present case, there is nothing even to show that the signatures in the margins were intended to attest that signature of the testator which alone would give ejffect to the paper as a will. I therefore reject the allegation propounding this paper. 1855. Dee. 3d. EWEN against Franklin and others. In the goods o/F.A. Cooper. On Motion. 1855. The deceased directed that her will was "to take effect only in the event of my son Charles dying under the age of 21 years, and my daughter Sarah dying under that age and unmarried." She then went on to leave various legacies, disposed of the residue of her estate, and appointed C. G. her executor. The personal estate was under £200; Dec. 11th. General Pro- bate. Prac- tice. General pro- bate decreed of a will in- tended "to take effect only in the event," &c. 10 CASES DETERMINED IN THE 1855. but in the event of the son dying under the age of Dec. nth. 21 years, and the daughter dying under that age In thegoods of ^^^ Unmarried, the deceased had a power, under p. A. Cooper, ^gj. marriage settlement, to dispose of a certain amount of stock. Both children were living. Probate of the will, with such limitations as the Court should think fit, was moved for on behalf of the executor. Sir John Dodson decreed a general probate to the executor. Herbert against Herbert. eecvice. 1855. On admission of an Allegation. Dec. 14th. 1 Vic. c. 26, ». The deceased in this case died suddenly on the miiitatr"' 16*^ °^ November, 1848. He had written on the same day a letter to his brother in the following terms : — " Jellundur, 16th November, 1848. "Mt dear George, " I have not heard from you for a long time, and being about to go to the Hills, sick, I write to give you a list of money, or rather a statement of my aifairs, should anything happen to me during these PREBOGATIVB COURT OF CANTERBURY. 11 disturbed times, I intend that everything I have 1855. shall be yours, with the exception of £1000, which Dec. uth. I purpose that John shall possess. My will I intend Herbert making over to George Hill, with whom I am jj^^b^kt staying. 1 have in this country, in Messrs. C. & Co.'s hands, 16,500 rupees in company's paper. I don't know the exact amount of last balance ; I believe it was 250 or 260 rupees. I have paid 3350 rupees to the East India railway. I have not yet received last month's pay, 500 rupees, from Hodgson. I owe nothing in bills; and there are about 110 rupees in my boxes. I know not where to go or what to do in consequence of my regiment having gone on service, and also because I have been suddenly and unexpectedly relieved from the acting department I held at Hoosheropoore. John and my aunts can teU the amount of my property at home — ^indeed you know it pretty well. My wound pension is due from the 1st of August, 1847, until this time. I go before the medical committee to-day, so that the next time you hear from me will be from Simlah, in all probability. " Your affectionate brother, " E. A. Herbert." The allegation propounding this paper as the will of the deceased, pleaded that in January, 1848, he was ordered from his own regiment, the 46th, then stationed at Lahore, to join a Sikh regiment at Hoosheropoore, which he immediately did, with which regiment he remained till November, 1848; that during such time he was engaged in various skirmishes with the rebel troops of Rajah Shere 12 CASES DETERMINED IN THE 1855, Sing, and that in the course of such services he was Dec. 14th. seriously injured in an arm which had been pre- herbebt viously wounded ; that during such time the de- H^BEET. ceased's own regiment was brigaded with the army on the Sutlej, and continued in active service until after his death ; that the deceased left the Sikh regiment by order to rejoin his own regiment on the Sutlej on the 13th of November ; that upon the urgent recommendation of the medical officer of the Sikh regiment, he, on his route to his own regi- ment, went to Jellundur, but little out of the direct road, to submit himself to the examination of a medical committee then sitting, in respect to the propriety or fitness of his immediately joining his own regiment, then in active service ; that on the 15th of November he arrived at JeUundur, and stopped at a friend's house, to whom he expressed his intention of leaving his property, except £1000, to his brother George, and that he died on the 16 th ; and that the paper propounded was entitled to pro- bate as the will of a soldier in actual military service, under 1 Vic. c. 26, s. 11. Sir J. D. Harding, Q-A.^ and Twiss^ opposed the admission of this allegation — ^first, on the ground that the deceased was not shown to have been in actual military service ; secondly, that the paper was not intended by the deceased as his will. Addams and Spiriks contra. Sir John Dodson. The admission of this allegation has been opposed on two grounds: first, as to the paper itself, it has PBEROGATIVE COURT OF CANTERBURY, 13 been argued that the language is not dispositive, 1855. but gives a mere list of property — is, in fact, a letter Dee. nth. without the form or semblance of a will ; and so hemert far from provinoj final intention, points in fact to against 1 • /> 1 • Ml T» Herbert. the making of another mstrument as a will. But a deed poll, a deed of gift, a bond, a marriage settle- ment, letters, and so forth, have been held sufficient in form to be entitled to probate as testamentary papers, provided the deceased intended that any of them should operate after his death : Wms. Exrs. 73, 3d ed. It is true these were cases before the present Act, but the 11th section of that Act puts the wills of soldiers on the same footing as they previously stood ; assuming, therefore, for the moment that the deceased was in actual military service, these cases are to the point. Looking next to the paper itself, I am clear that the deceased intended it to have eflfect after his death. This letter is very different from the paper in The King's Proctor v. Daines, 3 Hagg. 218, or that in Torre \. Castle, I Curt. 303. The second ground of opposition was, that actual military service was not shown by the facts pleaded. But I do not think so : the facts are much stronger than those either in Drummond v. Parish, 3 Curt. 522, where the testator was at Woolwich, or In the Goods of Hill, 4 N. C. 174, where he was on a tour of inspection at a time of perfect peace. And again : in Bowles v. Jackson, 1 Eccl. & Adm. Rep. 294, the deceased had been ordered to join the expedition, but he had not left home. In all those cases probate was refused. In the present case the deceased was on his way from one regiment to another, both of which were in actual military service. The allegation must consequently be admitted, when it has been 14 CASES DETERMINED IN THE 18^5. reformed, so that actual military service be dis- Dec 14th. tinctly pleaded. Herbert against ^~~~~~~ Herbert. (Theakston v. Marson, 4 Hagg. 297, was cited in argument, as well as the cases referred to in the judgment). In the goods of Emma Hakewell. 1856. On Motion. Jan. 13th. poration. „ , E. H. duly executed a will in February, 1847. in Unexecuted _ ■' . j j - paper, incor- which was the following clause : — " As to all the rest and residue of my estate, property, and effects, not hereby or by any codicil in writing hereinafter by me especially bequeathed, it being my intention by a separate paper to allot my plate, I give and bequeath the same, subject to the payment," &c. She executed a codicil in January, 1851. After her death in November, 1855, there was found, with the will and codicil, a paper in the handwriticig of the deceased, which began — " This is a codicil to my will dated 5th February, 1847, but which I do not wish to be proved at Doctors' Commons ;" and ended, " And I confirm my will in all respects not altered thereby." By this unexecuted paper she gave and bequeathed, &c., and allotted her plate and pictures, among several legatees ; it was dated Emma Hakewell. PRBEOGATIVE COURT OF CANTERBURY. 15 26th of April, 1847, and signed by the testatrix. 1856. The attesting witnesses to both will and codicil jan. isth. deposed that they saw nothing of this paper of the i„ thegoods of 26th of April at the execution of either will or codicil, nor was any paper attached to either of them. The codicil of 1851 confirmed the will only. Probate of the will and codicil only, excluding the paper of February, 1847, was prayed on behalf of the executors named in the will. Ferraris v. Hertford, 3 Curt. 468 ; Haynes v. Hill, 13 Jur. 1058, were cited. Sir John Dodson granted the motion as prayed. Batnes against Harrison. On Motion. 1856. Jan. 23d. J. H., late of Glasgow, died in the month of credltOTT Ad- August, 1853, a widower, and intestate, leaving "fter The death R. H., an only son. At the time of the death of °f »" intestate, ' •' _ A. procured the deceased he was indebted to B. in the sum of from b. an as- £23 4s. After the death of the deceased that debt due to b. debt was assigned to A. A decree issued at A.'s jiotion'for ad- instance, citing the son of the deceased, to accept "cht'"*'"" "* or refuse letters of administration of the effects of rejected, the deceased, or show cause why the same should not be granted to A. on his giving the usual security. This decree was personally served on 16 CASES DETEHMINED IN THE 1856. R. H., who was a minor, on board the ship in Jan. 23d. which he was serving as an apprentice, in the batnes presence of the mate of the said vessel. It appeared against that all the parties were Scotch, and that a grant had been obtained m Scotland. The property in England consisted of the proceeds of a policy of insurance, amounting to the sum of £105. In the decree served on R. H., A. was described as a cre- ditor, whilst he was in fact but an assignee of the debt. Administration to be granted to A., as a creditor of the deceased, upon his giving the usual security, was moved for. Sir John Dodson rejected the motion, observing that the decree being invalid, there must be a fresh citation, ^d that it would be a dangerous practice to decree administration of an intestate's estate to a person who had bought up a debt after the death of that intestate, especially where, as in the case before him, the assets considerably exceeded the amount of the debt. On a subsequent date the motion was granted on affidavit, stating that A. was also a creditor of the intestate, and had been chosen by the several creditors of the intestate as the person to obtain the administration for their benefit. PREROGATIVE COURT OF CANTERBURY. 17 In the goods of D. Mackenzie. On Motion. 1856. Feb. 8th. The deceased, a domiciled Scotchwoman, died in Admiiiutration Scotland in the month of August, 1852. She left ^th the win ° ' annexed. Form a will, in her own handwritinar, signed by herself, of grant in , -, 1 . , , ° . "^ p Scotland va- but unattested, and without the appomtment oi an ried as to the executor. By this will, after giving several general deceased in * and specific legacies, the testatrix gave to her ^"s'*""*- sister, for life, her money in the funds or in the bank, after payment of a legacy in the will men- tioned ; and, " After my sister's death, all to go to my nephew, George Jones." On the 3d of Novem- ber, 1852, this will of the deceased was duly confirmed by the Commissary Depute of the Commissariat of Wigtown, in North Britain, at the instance of George Jones, to whom, as executor dative, qua legatee, and residuary legatee, full power was granted by the Court of the said Commissary Depute to administer the personal estate of the deceased in Scotland, — an^d Mr. George Jones was accordingly constituted the sole personal representative of the deceased in Scotland; but it was afterwards suggested that, according to. the true construction of the wiU, Mr. Jones was not entitled, according to the law of England, to the general residue of the personal property of the deceased, and therefore not entitled, according to the ordinary practice of this Court, to the letters of administra- tion with the will annexed. It had now become VOL. I. c 1 8 CASES DETERMINED IN THE 1856. necessary, for tte purpose of substantiating pro- Feb. 8th. ceedings in Chancery, that there should be a inthegOTdaof representative of the deceased in this country. D. Mackenzie. Middleton moved for administration with the will annexed to George Jones, as legatee substituted in the will, limited to the goods of the deceased within the Province of Canterbury, varying the character of the representative so as to make the proceedings conform to the law of this country. He cited In the Goods of Read, 1 Hagg. 474, where a similar course had been adopted, the deceased having died at Madras, and probate having been granted there to the widow, as sole legatee and constructive executrix ; this Court would only decree administration with the wiU an- . nexed to the widow, as the relict and the principal legatee, upon the usual security. Sir John Dodson. Under the authority of the case cited, I feel no difficulty in granting this motion as prayed. PEEKOGATIVE COURT OP CANTERBtJEY. 19 Foot against Stanton. 1856. Feb. 8th. This was a cause of proving, in solemn form of Probate of win ■n/TAO granted m the law, the last will of Mary Ann Stanton, bearing absence of date the 15th day of October, 1850, promoted by stnictionyor Honor Fry Foot, wife of John Foot, the sister and contmtefand one of the next of kin of the deceased, against ^1^68^68 nft Henry Stanton, the sole executor named in the ™conecting ■' ' any of the cir- will. cumstances of the execution of the will. Robinson for the executor. Middleton for the next of kin. Judgment. Sir John Dodson. This paper is in due form. There is an attesta- tion clause, and two witnesses have subscribed their names. The property is so small that I was in hopes the parties might have been induced to settle the whole matter out of Court ; but as they will not do that, I must now give my opinion: The effect of the will is to give £19 19s. to Mrs. Wheeler, a sister of deceased; to Mrs. Foot, the party in the cause, £10; to Ellen and Martha Stanton, all the deceased's trinkets and jewellery; to Henry Stanton, party in this cause, £10, to be placed in his name in a savings' bank, in trust, for the children of another brother of the deceased, to accumulate till they are of age; to Henry Stanton, all furniture, linen, &c.; the residue to Henry c 2 20 CASES DETEEMINED IN THE 1856. Stanton and Westcott Stanton, another brother of ~ Feb. 8th. deceased ; to appoint Henry Stanton sole executor, ^^ and to direct him to repay to deceased's brother-in- against j^w, Hcnrv Wheeler, all monies he may have Stanton. t j j j ^ expended for her use. It revokes aU former wills. The whole property appears to be of the value of about £200. The will was propounded in a com- mon condidit, on which three witnesses have been examined ; Mr. Burke, a medical man ; and Potto, in whose house the deceased was residing at the date of the will, and till her death — these were the two subscribing witnesses. Mr. Burke has no recollection whatever of the circumstances attend- ing the execution of the wiU: in 1850 he was practising at Boxmoor and Hemel Hempstead, and was occasionally in attendance at Mr. Potto's house. When shown his subscription to the will, he has no doubt inferentially that it was so signed and subscribed as appears; he is acquainted with the formalities necessary for the execution of a will; his attendance on the deceased was not for the epileptic fits to which she was subject. The other witness, Potto, at whose house and in whose care deceased had been placed by her brother, on account of the epileptic fits from which she suf- fered, knows as little about the transaction. When Mr. Foot, on deceased's death, wrote to Potto to ask about any will, he received for answer: "I never signed any will for Miss Mary Ann Stanton, nor was she in a fit state of mind during the four years she resided with me to make a will." How- ever Mr. Potto recognises his own subscription and that of Mr. Burke, and therefore has no doubt that whatever appears on the face of the PREROGATIVE COURT OF CANTERBURY. 21 paper really took place. It is true that he can recol- 1856. lect no reading of the paper to the deceased, and Feb. sth. will not speak positively to her testamentary capa- ^^ city ; yet, there is nothing in his evidence to nega- g "f^'^'j, tive it, except at those times when she was actually under the influence of a fit. The third witness. Drew, was copying clerk in a solicitor's ojfice, and wrote out from a draft the paper now in question. He speaks to the interlineation of £19 19s. as made before it left his hands. There is no evidence of any instructions given by the deceased. How- ever, on the unopposed evidence of the subscribing witnesses, I am of opinion that I must pronounce for this will. I think Mrs. Foot was justified in putting the executor on proof, and is entitled to her costs. 22 CASES DETEEMINED IN THE Dyce Sombre against Teoup, Solaboli (intervening), and Peinsep, and the Hon. East India Company ^^^^- (also intervening). Jan. 26th. Where insa- This deceased died on the 1st day of July, 1851. confined to He left a will dated the 25 th of June, and a codicil more de™- "' dated the 13th of August, 1849. Sed'^'and'"'" On the 2d of July, 1851, a caveat was entered ; IhowJ'thrde- ^'^^ °^ ^'^^ ^*^ °^ ^^ same month an appearance ceased to have ^v^as given for the widow of the deceased, alleging been instructed *= i.n. i . -: . . to conceal the him to have died intestate, and praying administra- continued ex- , . » . . i . • i istence of such tion. At the Same time an appearance was also ddSs^and given for A. M. Troup, wife of J. R. Troup, alleging PTOvJ'^erfect'" ^^^ deceased to have died without child or parent ; recovery of that the Said A. M. Troup was his natural and law- capacity is at . . ^ . . least doubtful, ful sister, and one of his next of kin ; and praying t>Il6 will IDSidfi by a person so to be joined in the administration. And also, at though ra- ^ho Same time, an appearance was given for H. T. lionaiirin-'^" P^Qsep ; and he was alleged to be one of the ex- Btructed and ecutors named in a will of the deceased. On the executed, is not entitled to pro- 2d of September, 1851, the same proctor who had appeared for A. M. Troup intervened for G. Solaroli, wife of P. R. N. Solaroli (Baron SolaroU), and alleged her to be the natural and lawful sister of the deceased, and one of his next of kin. On the 7 th of October, G. Solaroli was admitted by the proctor for the executor to be a contradictor to the will and codicil ; and on the 7th of November, the interest of A. M. Troup was admitted. PREROGATIVE COURT OF CANTERBURY. 23 On the 13th of December an appearance was given on behalf of the Honourable East India Company, as the residuary legatees in trust named in the will. On the 16th of January the allegation on behalf of the executor propounding the will and codicil was brought in. On the 4th of June, 1853, an allegation was brought in on behalf of the next of kin; and on the 7 th of June, an allegation on behalf of the widow was also brought in. On the 30th of June additional articles to the allegation of the next of kin were brought in. On the 21st of AprU, 1854, a further allegation was brought in on behalf of the executor ; and on the 13th of October, a further allegation was brought in on behalf of the next of kin ; but on the 17th this allegation was on consent subducted, and a new allegation brought in. Upon these several pleadings 135 witnesses were examined in this country, in France, Belgium, and India. The proceedings and evidence, including a great number of exhibits, were contained in 1554 printed folio pages. There was also an octavo volume of 580 pages, published by the deceased in 1849, as a " refutation of the charges of lunacy brought against him in the Court of Chancery." The case was argued for 19 days by Bayford and Phillimore for the executor. Haggard and Rolertson for the East India Com- pany. Sir J. D. Harding, Q.A., smdJenner, for the widow. Twiss and Spinks for the next of kin. 1856. Jan. 20th. Dycb Sombre against Troup, solaroli (intervening), and Pkihsbp, and the Hon. East India Company (also inter- vening). 24 CASES DETERMINED IN THE 1856. Jan. 26th. Dycb Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). Judgment. Sir John Dodson. The question in this case is as to the validity of the will and codicil of Mr. David Ochterlony Dyce Sombre, deceased — the will bearing date the 25th of June, 1849, and the codicil bearing date the 13th of August, in the same year. The deceased died on the 1st of July, 1851, at that time lodging in Davies Street, Berkeley Square, possessed of very large property. The will and codicil are propounded by Henry Thoby Prinsep, one of the executors therein named — the two other executors, viz., the Honourable Mountstuart Elphinstone, and Sir Henry Miers Elliott, not being parties in the suit. The will and codicil were opposed by the Honourable Mrs. Dyce Sombre, widow of the de- ceased; by Mrs. Troup, his lawful sister; and by the Baroness Solaroli, asserting herself also to be his lawful sister. The interest of the last-men- tioned lady has not been confessed by Mr. Prinsep, on the alleged ground of her illegitimacy ; but she has been admitted a contradictor to the will, and has appeared by her proctor and counsel. The East India Company have likewise intervened, with the intent of supporting the will and codicU, but have Bot thought it necessary to offer any alle- gation in the cause. The will and codicil are in due form, having been respectively prepared by a solicitor, and executed by the deceased in the pre- sence of no less than three witnesses, all of them of the medical profession. As to the contents of the will, it commences with a recital of the deceased having been appointed by PREROGATIVE COURT OF CANTERBURY. 25 her late Highness the Begum Somroo trustee under certain deeds and instruments for charitable pur- poses, and appoints under such trust the bishop or senior Roman Catholic priest at Sirdhana to be his successor. It then gives special instructions for his funeral — directs that his body shall be conveyed to Sirdhana, and there buried in the corner of the Christian burying-ground facing the south-east, and that there shall be placed over it a bronze cross, to be procured, if possible, at a certain place which he mentions, viz., at a certain manufactory at Berlin ; and his heart is to be enclosed in a silver case, with an inscription thereon, and to be buried separately from his body, in the room adjoin- ing and leading into the sepulchre of the late Begum ; and tablets, with proper inscriptions, are to be placed both over his body and over his heart. It then directs the executors to attend to the erection of a monument to the late Begum, which was then preparing by the artist Tadolini, of Rome. He then orders his executors to set apart out of his personal estate a sufficient sum to enable them to pay certain annuities, or rather, I should say, certain monthly payments; for although they are described as annuities in the will, yet it is proved, and is also admitted on the other side, that they were not intended to be annual payments, but that they were intended to be monthly payments. There was a misunderstanding in that respect between him and the solicitor by whom the will was drawn. He then proceeds to enumerate the persons who were to receive those benefits. They are very nu- merous, and they seem to comprise a great number of persons who had received pensions from the 1856. Jan. 26ih. DyOB Sombre against Teoup, solaroli (intervening), and Pkinsep, and the Hon. east India Company (also inter- yening). 26 CASES DETERMINED IN THE 1856. Jan. 26th. Dtcb SOMBKE against Tboup, solaboli (intervening), and Pbinsbp, and the Hoic. East India Company (also inter- vening). Begum, and to whom he had himself made allow- ances ; and that circumstance shows that he had a very retentive memory at the time, that he was in full possession of that faculty, and in that respect it is clear that his capacity was good. The will then goes on to give the interest of 20,000 rupees for life to Mrs. Troup, his sister, and if she have any children, the principal is to go to them ; other- wise it is to fall into the residue, and is afterwards disposed of. He then makes certain other bequests to Mrs. Reghelini, to Major Reghelini, and others. He gives legacies to various persons, and, amongst others, the sum of £1000 to the Honourable Meliora Cotton, the daughter of Lord Combermere, who has had a good deal to do with this case, and is one of the witnesses examined in the cause. He then gives £500 each to the two eldest daughters of Sir Richard and Lady Jenkins, to Sir Charles Metcalfe Ochterlony £2000, and to the eldest son of Colonel Steuart the sum of £2000. The will then goes on to give to each of the 24 directors of the Hon- ourable East India Company, at the time of his death, and also to the six directors who shall be out of office by rotation, the sum of £1000 each, in addition to the sums afterwards bequeathed to the chairman and deputy chairman. It gives £5000 each to his three executors. It directs likewise that the jewels, valued at £7000, shall be divided equally amongst them at the decease of his wife. He gives the palace at Delhi to Mrs. Troup for life ; and then to her eldest and other sons, succes- sively, in strict entaU. And after other devises and bequests, he gives the East India Company the old palace at Sirdhana; and the residue of his real and PREROGATIVE COURT OF CANTERBURY. 27 personal estate to the said Mountstuart Elphin- stone, Henry Thoby Prinsep, and Sir Henry M. Elliott, in trust, to pay debts and legacies, and to invest 125,000 rupees, and apply the dividends for the support of the blind, lame, or indigent, of Sird- hana, and to pay over the clear residue to the East India Company, who are to set apart sufficient to produce the annual sum of £2500 — £1000, part thereof, to be paid to the president of the Board of Control, £1000 to the chairman of the Company, and £500 to the deputy chairman. The residue of his estate to be applied for the endowment of an institution to be called the Sombre College, for the education of the higher classes of the natives of India, without any distinction of religion. Such is the purport of the will. The codicil seems merely to have been made for the purpose of confirming the will, or to make it a little more clear ; but it makes no disposition what- ever of any property. Such are the contents of the instruments now in question before the Court. The opposition to these instruments, the will and the codicil, is founded upon the averment that the deceased was of unsound mind at the time when they were prepared and executed ; that he was la- bouring, not under any general kind of insanity, but under that form of insanity which is usually termed " monomania." On the other hand, it is contended that the deceased was at all times of per- fectly sound mind, and that the supposed delusions under which he is said to have laboured were not of an insane character, but that they were attri- butable solely to Asiatic habits and manners, to the feelings prevailing in India, and to his ignorance of 1856. Jan. 26tb. Dycb SOMBBE against Tboup, solaboli (interveniag), and Pbiksep, and the Hon. East India Company (also inter- vening). 28 CASES DETERMINED IN THE 1856. Jan. 26th. Dtcb SOMBKE against Tkoup, solaboli (intervening), and Prinsep, and ttie Hon. East India Company (also inter- vening). the customs and manners of this country ; and that even upon the supposition that he had been of un- sound mind at any particular time, he had entirely recovered from it previously to the execution of the will and the codicil, and that he was perfectly sane at those respective periods. Before I enter upon the consideration of the par- ticular delusions to which the deceased is alleged to have been subject, it may be convenient to see what are the principles which have been consi- dered in these Courts applicable to cases of this description ; and for this purpose, I think it will be necessary only to refer to the case of Waring V. Waring, which was decided by the Judicial Committee of the Privy Council, and which is reported in the sixth volume of Moore's Privy Council Cases. In that judgment reference is made to almost all the preceding cases ; and being a decision of the Superior Court, T must take it as a binding authority, even if I entertained a different opinion upon the subject, which I, however, cer- tainly do not. Lord Brougham, who delivered the very able judgment in that case, and which judg- ment was understood to have had the fuU concur- rence and sanction of all the lords who sat upon that occasion, expressed himself in these words, which are to be found at page 348 : *' The princi- ples which must govern a case of this description are sufficiently clear, and they may be regarded as well settled by the current of former decisions : in- deed, they flow easily from considering the nature of the inquiry in which such cases engage us. The question being, whether the will was duly made by a person of sound mind or not, our inquiry of PREROGATIVE COURT OF CANTERBURY. 29 course is, whether or not the party possessed his faculties, and possessed them in a healthy state ? His mental powers may be stiU subsisting ; no dis- ease may have taken them away ; and yet they may have been affected with disease, and thus may not have entitled their possessor to the appellation of a person whose mind was sound. Again, the disease affecting them may have been more or less general, it may have extended over a greater or a less por- tion of the understanding; or rather we ought to say, that it may have affected more or it may have affected fewer of the mental faculties : for we must keep always in view that which the inaccuracy of ordinary language inclines us to forget, that the mind is one and indivisible ; that when we speak of its different powers or faculties, as memory, imagi- nation, consciousness, we speak metaphorically, likening the mind to the body, as if it had mem- bers or compartments; whereas, in all accuracy of speech, we mean to speak of the mind acting va- riously, that is, remembering, fancying, reflecting — the same mind in all these operations being the agent. We therefore cannot, in any correctness of language, speak of general or partial insanity; but we may most accurately speak of the mind ex- erting itself in consciousness without cloud or im- perfection, but being morbid when it fancies; and so its owner may have a diseased imagination ; or the imagination may not be diseased, and yet the memory may be impaired, and its owner be said to have lost his memory. In these cases we do not mean that the mind has one faculty, as conscious- ness, sound, — while another, as memory or imagina- tion, is diseased ; but that the mind is sound when 1856. Jan. 26th. Dycb Sombre against Trof1>, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). 30 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce Sombre against Troup, solaroli (intervening), and Peinsep, and the Hon. East India Company (also inter- vening). reflecting on its own operations, and diseased when exercising the combination termed imagining, or casting the retrospect called recollecting. This view of the subject, though apparently simple and almost too unquestionable to require or even to justify a formal statement, is of considerable im- portance when we come to examine cases of what are called incorrectly ' partial insanity,' which would be better described by the phrase ' insanity,' or ' unsoundness, ' always existing, though only occasionally manifest." That, Lord Brougham thinks, is the correct way of expressing the state where insanity always exists, but only occasionally and on certain subjects shows itself. " Nothing," he continues, " is more certain than the existence of mental disease of this description. Nay, by far the greater number of morbid cases belong to this class. They have acquired a name — the disease called familiarly, as well as by physicians, ' mono- mania,' on the supposition of its being confined, which it rarely is, to a single faculty or exercise of the mind : a person shall be of sound mind to all appearance upon aU subjects save one or two, and on these he shall be subject to delusions, mistaking for realities the suggestions of his imagination ; The disease here is said to be in the imagination that is, the patient's mind is morbid or unsound when it imagines, healthy and sound when it re- members. Nay, he may be of unsound mind when his imagination is employed on some subjects, in making some combinations, and sound when making others, or making one single kind of combination. Thus, he may not believe all his fancies to be reali- ties, but only some or one ; of such a person we PREROGATIVE COURT OP CANTERBURY. 31 usually predicate that he is of unsound mind only upon certain points. I have qualified the proposi- tion thus on purpose ; because if the being or essence which we term the mind is unsound on one subject, provided that unsoundness is at aU times existing upon that subject, it is quite erroneous to suppose such a mind really sound on other subjects. It is only sound in appearance; for if the subject of the delusion be presented to it, the unsoundness which is manifested by believing in the suggestions of fancy, as if they were realities, would break out ; consequently, it is as absurd to speak of this as a really sound mind (a mind sound when the subject of the delusion is not presented), as it would be to say that a person had not the gout because his attention being diverted from the pain by some more powerful sensation by which the person was affected, he for the moment was unconscious of his visitation. It follows from hence, that no confi- dence can be placed in the acts, or in any act, of a diseased mind, however apparently rational that act may appear to be, or may in reality be." He goes on further, using language of the same description, and very much to the same purport, and then con- siders what a delusion is, and what is a delusion which is an insane delusion, and which has been described as a belief of things as realities which exist only in the imagination of the patient. He then gives Dr. WiUis's account with very much ac- curacy, which confirms the view which he had taken himself, and which, as I said before, had been taken by all the members of the Judicial Committee, for the judgment had their express sanction when Lord Brougham delivered it. 1856. Jan. 26th. Dtcb Sombre against TRonp, SOLAROLI (intervening), and Pkinsbp, and the Hon. East India Company (also inter- vening). 32 CASES DETERMINED IN THE 1856. Jan. 36tli. Dyce Sombre against Troup, solaroli (intervening), and Peihsep, and the Hon. East India Company (also inter- vening). We have to consider now a little of the history of the deceased, because, as I have before stated, it is asserted that he was not insane, that his imagi- nation was not unsound, and that his conduct and behaviour were not the result and consequence of insanity, but proceeded merely from his Asiatic feelings, the manner in which he had been brought up, and the mode of thinking which prevailed in India; and that he was unused and unaccustomed to society in England, and to the ways and man- ners of Europeans. The history of the deceased is this : He appears to have been born at Sirdhana, in the upper pro- vinces of Bengal, in or about the year 1808, and to have been descended from ancestors some of whom were of European, and others of Asiatic ori- gin. As to his exact pedigree, the parties are not agreed. Mr. Prinsep, the executor, alleges that Mr. George Alexander Dyce, the father of the deceased, was of Asiatic extraction ; that he was for some time a colonel in the service, and an officer in the house- hold of her Highness the Begum Sombre, or Somroo, who exercised a right of sovereignty over a certain portion of territory in the Upper Provinces of Hin- dostan ; that his mother was the granddaughter of a General Sombre, who had been the husband of the Begum, or who cohabited with her as such, but who died in her lifetime; that General Sombre, by a previous marriage or cohabitation with a native Hindoo woman, had a son named Louis Balthazar Sombre, who was the father of Juliana Dyce, the mother of the deceased. By Mrs. Dyce Sombre, the widow, it is denied that the father of the deceased was of Asiatic origin. PREEOGATIVE COURT OF CANTERBUEY. 33 On the other hand, she asserts that he, that is, the father of the deceased, was the son of a British officer, a native of Scotland; and as regards the maternal side, that the mother of the deceased was Juliana Reinaud, the daughter of Louis Reinaud, by a Miss Lefevre ; and that the said Louis Reinaud was the son, by a Rajpoot lady, of Walter Reinaud, who was a German by birth, sumamed Sombre, and who was the husband of the Begum. Now^, what may have been the very precise origin or pedigree of Mr. Dyce Sombre, it is perhaps not very easy to collect from these statements, or from the evidence given in the cause ; but it cannot, I think, be of any great importance to determine whether European or Asiatic blood prevailed in his veins. It is more to the purpose to inquire how he was brought up, and by whom he was educated, and with whom he afterwards associated. Of this, I think, a very fair and satisfactory account is given by Dr. Drever, who was an intimate friend of the deceased, who knew him well in India, and who also knew him after his return to Europe. Dr. Drever says : " I became acquainted with David Ochterlony Dyce Sombre, the deceased in this cause, in the year 1829. I was then assistant surgeon to the i||d regiment of Bengal Native Infantry, at Meerut. The deceased was living with the Begum Somroo. I knew the father of the deceased, George Alexander Dyce, who had been in the employ of the Begum, but had left her service in disgrace. The mother of the deceased I never knew. The deceased was then about 21 years of age. His father VOL. I. D 1856. Jan. 'i6th. Dyce Sombre against Troup, gOLAROLI (intervening), and Prinsbp, and the Hon. East India Company (also inter- vening). 34 CASES DETEBMTNED IN THE 1856. Jan. 36tb. Dtce SOUBBE against Tkoup, solaroli (mterTening), and Fbinsep, and the Hon. East India Company (also inter- vening). was a Protestant. I do not know it myself, but I have no doubt of the fact, that the deceased had been under the care of Mr. Fisher, a clergyman of the Church of England, who was still chaplain at Meerut. I was not on terms of intimacy with the family, but I knew his sons, who were in the same service with me. Meerut is twelve miles from Sirdhana. The deceased, while I knew him, always belonged to the Eoman Catholic Church. He mixed in the society of the civil and military servants of the East India Company. They were frequently dining at the Begum's table, and the deceased was present. It is a large military station ; there were many English families; and when at her own place at Sirdhana, there was very good English society, male and female. The deceased had acquired their habits, and conducted himself at all times in a very becoming manner. Three years after I became acquainted with him, viz., in 1832 — -I was attached to the Begum's household, as her physician; for four years I lived in her family, with the de- ceased, and we were then in daily intercourse. No person knew him so thoroughly as I did, and there was no one in whom he placed such entire confidence as in me. When going into society, the deceased dressed as an European — sometimes in plain clothes, at others in uniform, as a colonel in the Begum's service. For the oppor- tunities he had, the manners of the deceased were very good. He lived altogether as an European. In regard to the treatment of women, it is to be remembered, that though the natives do not allow the females of their families to appear in society. PREROGATIVE COURT OF CANTERBURY. 35 yet, meeting European ladies in society, they treat them with great respect. In so far, there is no difference between the conduct of Europeans and natives; but the deceased showed a marked differ- ence in another respect, viz., he had a native woman with whom he cohabited, and although very much attached to her, yet he never showed the slightest jealousy of her, but allowed many of his friends to visit her in the female apartments of the Zenana. I frequently saw her, and unveiled. It was in the palace of the Begum ; she lived in one of the apartments. His own disposition seemed to be very gentle, mild, and forgiving; I never saw him lose his temper; I have seen him under provoca- tion, not disposed to take offence; and he was unassuming, though frequently appearing and act- ing as the head of the establishment." Then he goes on with an account of the continuance of his acquaintance with the deceased till the period when he departed for Calcutta, and afterwards he corre- sponded with him, and subsequently knew him in England. The witness says that prior to the deceased's embarkation for England, he sent the witness his will. Such is the account given by this gentleman, and from which it is to be taken that the deceased certainly was cognisant to a considerable degree of European manners ; that he associated with Europeans; that he had been educated by a clergyman of the Church of England, who was a married man, and who had a family, one of his sons about the age of the deceased him- self; that he afterwards became acquainted with the officers and with their ladies, and others, who visited the Begum; that he was in the habit of D 2 1856. Jan. 26th. Dyoe SOMBBB against Tkoup, solakoli (inteivening), and Prinsep, and the Hon. East India Company (also interi veniiig). 36 CASES DETERMINED IN THE 1856. Jan. 26th. Dycb SOMBBE against Trocp, SOIiABOLI (intervening), and Pkinsep, and the Hon. East India Company (also inter- vening). going over to the military station where the officers were, and associating with them; and, therefore, that he was not altogether ignorant of European manners, though he was born in India; and I think that is the account which is pretty generally given by other witnesses who have been examined upon the point. There is a difference in some respects, in regard to his jealousy of women; because by some of them it is said that he never suffered anybody to see the women who were kept in the Zenana; but, according to Dr. Drever, he admitted his friends into the Zenana, who there saw the women, and unveiled. Now it is true that he can only mention, I think, one friend by whom they were visited besides himself, and that is a Captain Rogers; but to that extent they were ad- mitted into the Zenana, and they did see the women. However, I think his manners were to be considered as partly Asiatic and partly Euro- pean; that he was conversant both with the manners of Asia and those of Europe to a certain extent, and not so entirely ignorant of European manners as he has been described to be. In 1836 her Highness the Begum died, and upon that occasion her will was proved in the Court at Calcutta. In October, 1836, the deceased quitted Sirdhana, to which he never returned. The Begum left him, as I before stated, and he became possessed, at her death, of a very large property. On quitting Sirdhana, he appears to have gone to Calcutta, — at least he was there about the month of January, 1837, — and to have remained there until August in that year, when he sailed for Singapore and Canton, in China, and returned to PREROGATIVE COURT OF CANTERBURY. 37 Calcutta in February, 1838. He then embarked for England, and arrived at Bristol in August of that year. In September, 1840, he was married to the Honourable Mary Anne Jervis, the daughter of Lord St. Vincent. It appears that he had traveled upon the Continent for some time ; that he had made proposals to her ; that the marriage was broken off; that in consequence of a letter he re- ceived from her, he returned to this country, and the marriage took place between them, and they cohabited together after this marriage till about the month of March, 1843. At that time a separation took place between them, in consequence of the deceased having been put under restraint as a lunatic, at the Clarendon Hotel, and thence he was removed under the care of a keeper to Hanover Lodge, in the Regent's Park, at which place he continued for some time. In September, 1843, he was allowed to travel, for the benefit of his health, with Dr. Grant, who was to take care of him, and upon the 21st or 22d of September he escaped from Liverpool, and he arrived in Paris upon the 22d or the 23d of September. With respect to this confinement and the in- sanity, the charge is that he became insane in 1842 or 1843, and that it was necessary to put him under restraint. On the other hand, it is said that he was not insane at that time ; that he was not insane at any time; and Mr. Prinsep asserts, in his answers in the present suit, that he does not believe that the deceased was at any time insane. So the first question is, whether he was insane in 1842 and 1843, and especially 1856. Jan. 26th. Dyce Sombre against Trobp, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). 38 CASES DETERMINED IN THE 1856. Jan. 26fh. Dtce Sombre agaiiat Thoup, solaroli (intervening), and Pbinsep, and the HoK. East India Company (also inter- vening). in 1843, when he was put under restraint; and if it shall be established that he was insane at that time, the question wiU arise whether he had reco- vered from that insanity previous to the time of the execution of the wiU and the codicU. And the onus prohandi must, in the first case, lie upon the party setting up the insanity, since every person must be presumed to be of sound mind tiU the contrary is shown. The question is, whether Mrs. Dyce Sombre has duly discharged herself of that duty; whether she has proved to the satisfiic- tion of the Court that at this particular time, in 1842 and 1843, the deceased was of unsound mind? The witnesses who have been produced to prove the insanity upon this occasion are several. Sarah Lake, who was the servant in attendance upon Mrs. Dyce Sombre, says : " I think it was in the year 1838 that I entered the service of Mrs. Dyce Sombre, then the Honourable Miss Jervis. I have lived with her ever since. The first occasion on which I noticed anything amiss in Mr. Dyce Sombre, the deceased, was on the way from Donnington Park to Lord St. Vincent's; that was in the year 1841." So that she carries it rather farther back; but that was the first time that she noticed anything extra- ordinary, and that was upon her return from Don- nington Park, where they had been on a visit to the Marchioness of Hastings — that was in the month of May. "At Donnington, Mrs. Dyce Sombre came crying to me, in great distress, at what Mr. Dyce Sombre had been saying of her." " The next that I remarked extraordinary in him was in June PREROGATIVE COURT OP CANTERBURY. 39 of that year, at tlie Burlington Hotel. There I knew him to keep Mrs. Dyce Sombre in her room for as much, perhaps, as two hours, while he called her all sorts of names — a damned bitch, a person of improper character, worse than any woman that walked the streets," and so forth. We next come to a later period, which is rather more important. She says: "In 1842, at the Clarendon, I heard him charge her to her face with being guilty with Mr. M., with Mr. C. F., with Mr. F., with General V., with her own father." These are certainly most extraordinary charges to have been made against a lady : it is not a mere Asiatic suspicion of infidelity, but it is general infidelity, with a great number of people, and with her own father. However, it is said that this may still be consistent with Asiatic feelings — that incest between father and daughter is by no means an uncommon thing in India; and one of the learned physicians, to whose evidence I shall presently advert, says that even in England he has known very many cases of the kind. However, this is only the commencement of the charges which he makes : for they are not confined merely to those parties who are enumerated, but are made with respect to all manner of persons — ^the waiters, the tradesmen, anybody. The witness says : " I never heard him say that she had confessed it, but that her father had confessed it ; that Lord St. Vin- cent had confessed it to him, Mr. Dyce Sombre. Now, surely that is not very consistent even with Asiatic manners in a person of sound mind. "He charged her many times, and in difierent words, 1856. Jan, 36tb. Dtcb Sombre againtt Troup, solaroli (interrening), and Frinsef, and the Hon. East India Company (also inter- vening). 40 CASES DETERMINED IN THE 1856. Jan. 26th. Dyce Sombre against Troup, solaroli (interrening), and Priksep, and the Hon. East India Company (also inter- vening). but what he said was always to the same effect, and that was, her being guilty of adultery with them. He charged her with having been guilty with Mr, M., in my room ;" and so forth. In this, to a certain extent,, she is confirmed by a witness of the name of Roulin, who was the valet of Mr. Dyce Sombre at the time, and who speaks to the violent conduct of this gentleman towards his wife. But, however, it does not rest merely upon these servants, because we have the evidence of the phy- sicians by whom he was attended upon this occa- sion, and under whose authority he was put under restraint. Sir James Clark first knew him in the month of February, 1843. He says : "I was called in by another physician, since deceased." They were then at the Clarendon Hotel. " I continued . to attend him at various places, from the end of February till the end of August," that is, in 1843, " when I left him, being obliged to be in attend- ance upon the Queen. I saw him at various times and places, as I shall have occasion to relate, till November, 1848, when I saw him for the last time." Then he goes on to say that he saw the deceased in Clarges Street, in June, 1844, and so forth ; but that is not the point upon which we are now, which is confined to 1842 and 1843. "The deceased at all times manifested delusions respecting the infi- delity of his wife. I knew it to be an insane delusion, from the nature of the accusations against her, and the reasons he assigned." There- fore, it is not merely that he was jealous of his wife; for jealousy, though unfounded, might not PREROGATIVE COURT OF CANTERBURY. 41 be anyproof of insanity at all ; but the witness says he judges from the nature of the accusations against her and the reasons which the deceased assigned for them, "or rather from his inability to give any sound reason for it, or any rational account of his suspicion. One very manifest proof of its being an insane delusion, was his assertion that she had had connexion with her own father in Hyde Park in open day." So that it was not that which might exist in the mind of an Asiatic, that she had been guilty not only of adultery, but of incest; but his notion was that she had been guilty of adultery in Hyde Park in the open day, and with her own father. Certainly that is a strong instance of insanity, and I think that Sir James Clark is perfectly correct in describing that as an insane delusion. His evidence on this part concludes thus: "There were a variety of persons with whom he charged her, and not one sound reason could he at any time assign for his suspicions. On one occasion, indeed, he admitted that he might be wrong in his belief of her infidelity, but only as if he had been taught to say so — not at all as if the suspicion was abandoned, or the delusion at an end." That relates to an examination which took place at Mivart's Hotel in 1848, and the manner in which the deceased made the denial on that occa- sion must be afterwards looked at; the evidence given upon that occasion was taken by a short-hand writer and is now before the Court. There was another examination in 1844, and Sir J. Clark states not only the existence of the delusion as to adultery, but goes on to describe other matters which clearly show insanity. Referring to other 1856. Jan. 26th. Dtce Sombre against Troup, solaroli (interTening), . and Frinsef, and the Hon. East India Company (also inter- vening). 42 CASES DETERMINED IN THE 1866. Jan. 26tb. Dtce SOMBSE Tkoup, SOLAROLt (interrening), and • Prinsep, and the Hon, East India Company (also inter- vening). delusions, he says : " On one occasion, on the 10th of April, 1843, the deceased said that he had that night seen the heavens open, and one of the spirits rise from his grave, and desire him to do one of three things: the first, he said, was too bad to men- tion, and he would not mention it ; the second was to kill a cat in a particular manner; and the third was to eat his own dirt. He spoke of two spirits, one evil, the other good. One had counselled him to throw Mrs. Dyce Sombre's ring (her marriage ring no doubt) into the fire. I cannot speak to his talking to himself, or laughing aloud, &c. ; it would not happen in my experience, because when I had done talking with him I left. He was very restless, and his whole demeanour was such as to make it marvellous that any one could doubt his insanity." I think from this statement it would be marvellous that any one could doubt it ; because as to the truth of the statement there can be no doubt, since it is quite impossible to suppose that Sir James Clark would depose to facts untruly. His opinion, like the opinion of any other man, might be wrong, but he could not depose to these facts untruly; he could have no interest in stating anything that was not perfectly correct. He goes on to say that " on the 30th of March, in the same year, 1843, he had a consultation with Dr. Sutherland, Dr. Monro, and Dr. Conolly. There were present also Lord St. Vincent, T. H. Parker, Esq., Mr. Edward Ricketts, and Mr. B. J. L. Frere. That was held in his absence for the special purpose of deciding whether it was necessary to put Mr. Dyce Sombre under restraint, and it was decided that it ought to be efiected immediately, provided that the consent PEEEOGATIVE COURT OF CAKTEEBUBY. 43 of Mrs. Dyce Sombre could be obtained." It has rather been represented that she was a person eager to get this poor man placed under confinement; but the difficulty here was to get her to consent to it. The medical men and her father all thought that he was insane, and that it was necessary, even for her protection, that he should be placed under restraint, for that her life was in danger. Sir J. Clark, referring to the conduct of Mrs. Dyce Sombre, says : " She had hitherto expressed great reluctance to it. I saw her on the subject, and did strongly represent to her how indispensably neces- sary it was : she then gave her consent. There- upon a certificate was signed by Dr. ConoUy, Dr. Sutherland, and myself." Then he is placed under restraint, and Dr. Domier, a young physician, is selected to take care of him. The witness then deposes as to other instances of insanity about spirits; he says: "On the 10th of May, 1843, the deceased told me that his wife had acknowledged that her father had had connexion with her in Hyde Park in open day." Before, we had the confession of the father; now, we have her own confession : " On the 17th of May he told me that he was visited by a spirit every night ; that the day before he had dined on what he called a 'state ball,' which consisted of some bread and apple (over which he had burnt some brandy) and a glass of porter. Being asked an explanation of this, he replied that he took that kind of dinner in order to stop the Queen's levee ; and he expressed surprise that the levee had notwithstanding taken place, adding that he should protest against it." There is ample evidence of insanity here; but 1856. Jan. 26th. Dtcb Sombre against Tboup, solakoli (interTening), and Frinbep, and the Hon. East India Company (also interT veoing). 44 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). it is necessary also to advert to what he says upon the twentieth article, and it becomes necessary to advert to the particulars of the evidence which is given of the description of insanity ; because I shall have to consider presently the examination which took place before certain physicians in Paris, who came to a very different conclusion from what Sir James Clark and the other medical men who attended the deceased in England, and who were consulted upon this case, did ; a very different con- clusion. Upon the twentieth article he says : " Whilst at Hanover Lodge, in the summer of 1843, he talked to me of the terms on which he was willing that his wife should return to him. These conditions were of such an extraordinary kind, that I requested him to put them in writing. Soon after, perhaps the next day — it may have been the next, he produced to me a paper in red ink, to be delivered to Mrs. Dyce Sombre, inti- mating that it contained the conditions for her re- turn! to him." A very different account is given by the deceased when he comes to mention the cir- cumstance at Paris before the physicians there. Sir J. Clark identifies the contents of the paper, and says : " How and when I copied it, I cannot say. I have no recollection of that, or of having seen it after I sent it to Mr. Frere ; but a copy of it I must have made, as I believe. I now speak to its contents from a copy in a paper before me, which is my own affidavit embodying it, and in which I am certain that it was correctly recited. The original was in the deceased's handwriting." He then says: " I know that by the ' A. B. of C.,' were meant and intended the Archbishop of Can- PREKOQATIVE COURT OP CANTERBURY. 45 terbury; by the letters 'E. J.' were meant and intended the brother of Mrs. Dyce Sombre; by ' H. P.' were meant Hyde Park; and by the abbre- viations ' Vis. Ct. St. V.' were meant the father of Mrs. Dyce Sombre. That I know, because the contents of the paper had been repeated to me by the deceased by word of mouth. He talked them over seriously, the names and place being men- tioned by him at length. The paper was handed to me by the deceased deliberately, as I have said, as containing the conditions on which he would receive back his wife. The paper was subscribed ' with his own initials." The words of the paper were these : " First — Let the A. B. of C. procure and furnish every requisite for passing a pleasant evening with a virgin of the same rank as the one now lost. Second — Let Mr. E. J. produce another lady to receive the extinguisher (of rank). Third — Let there be a duel of three fires at the place in H. P. Fourth — Let;Vis. Ct. St. V. procxire a roan horse, well broke, for the occasion. Fifth — When the ground has been consecrated with the duel, I shall reconsecrate it with madame, and bring her back home on the horse." This is indeed a most extraordinary paper. The other evidence, I think, of Sir James Clark goes to the years 1844 and 1848; and I have already cited quite sufficient with reference to the year 1843; and Sir James Clark is confirmed in all these circumstances by Dr. Monro, who at- tended the deceased, in February, 1843, at the Clarendon, and, in July, 1843, at Hanover Lodge. He says : " The main feature of his case was delusion in respect to the infidelity of his wife. 1856. Jan. 26th. Dyce Sombre against Troup, solaroli (interrening), and Prinsep, and the Hon. East India Company (also inter- vening). 46 CASES DETERMINED IN THE 1856. Jan. 26th. Dtcb SOMBRB against Tkoup, soi/aroli (interrening), and Phinsep, and the Hon. East India Company (also inter- vening). In July, 1843, it was very strongly marked, and wore a settled and determined character. It was pregnant with the seeds of much risk and danger to Mrs. Dyce Sombre, from the peculiar nature of the delusion's under which he distinctly laboured with respect to her, and her supposed want of conjugal fidelity. The insane character of his suspicion was evidenced in his general accusation of incontinency with anybody and everybody; and the assertion that she had herself owned to having received men, from her own father down to shopmen. The delusion was fixed, as I have said, and was manifested by him on each of the occasions when I saw him in the years 1843 and 1844. I remember thinking that there was serious risk of his doing, her some mischief when he was at the Clarendon Hotel in 1843." This witness attended the execution of the commission which was held to inquire into the state of the de- ceased's mind, and was examined, and so were Dr. Chambers, Dr. EUiotson, and others. And he speaks not only as to this insanity with respect to the infidelity of his wife, and the nature of that infidelity, but he also speaks to the belief which the deceased entertained, that he was likely to be poisoned, which is undoubtedly a very frequent at- tendant in diseases of this kind. He says, to the sixty-third article : "I find from my affidavit, but I do not depose from recollection, though I have no doubt of the fact, that in June, 1844, the deceased stated, as he had done before to my recollection, that pernicious things had been put into his food at the Clarendon and at Hanover Lodge. His meaning, in 1843, was, as I understood PREEOGATIVB COUET OP CANTERBURY. 47 him, that such things were administered to him for the purpose of producing impotency." It does appear from the testimony of several other wit- nesses in the case, and from some of the entries in his own hand-writing, that he sometimes consi- dered that his food was poisoned, and sometimes that pernicious drugs were put in to deprive him of the power of sexual intercourse. Mr. M. has been examined, with whom the de- ceased supposed that his wife had committed adul- tery, but he seems to have had no intercourse with her to give any colour whatever to the suspicion ; he merely, I think, on one occasion went to the same theatre, and went from one box to the other for a short period of time, and then they separated. Of the other physicians, Mr. Martin says: "I was made aware of his delusions respecting his wife by his own communications, made to me personally when at Hanover Lodge. He then stated to me that his wife had been unfaithful to him, in that she had lived (for three days I think) with Sir F. B.; further, that he had seen her having sexual intercourse with soldiers of the Guards in the Regent's Park; and further, that she had had criminal intercourse with her father. At this time I became acquainted with Mrs. Dyce Sombre, I think by her signifying her wish to see me, with a view to her having a meeting with her husband. She accompanied me to Hanover Lodge, where I had previously prepared the de- ceased to expect her. They were together for per- haps half an hour alone, the door being left ajar in case of needful interference on my part, I remaining 1856. Jan. 26th. DvOB SOMBKB against Tkoop, solakoli (interveaing), and Prinsbp, and the Hon. East India ■ Company (also inter vening). 48 CASES DETERMINED IN THE 1856. Jan. 26th. Dtob Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. Ba.bt! India Company (also inter- vening). in the passage. I saw their meeting. He shrank from her as from an object that was repulsive. His manner towards her appeared to me to be repulsive, certainly not cordial. At the conclusion of the interview, I was requested to enter the room, when the deceased declared to me in her presence, that his consenting to her wish to see her again should depend upon my calling out Sir F. B., and that the sooner the meeting was arranged the better." That was the way in which he was to be re- conciled to his wife, though she had committed adultery with Sir F. B. ; that Mr. Martin was to call out Sir F. B. and to fight him, and then the husband and wife were to be reconciled. Now, this witness gives most important evidence, but it relates to other periods of time, viz., those of the examinations at Mivart's Hotel in 1848. Dr. ConoUy gives evidence to the same effect; and he speaks to the spirits, and the dining on apple and porter to prevent the levee. He says on the nineteenth article: " I have no more to say about the spirits. I remember his saying, on the occasion just deposed of, that he had dined upon an apple and some porter, I think for the purpose of pre- venting a levee ; but my recollection of that is less distinct than of what passed on the same subject in June, 1844, when he was asked about it, and ac- knowledged that he had felt displeased that the levee had not been postponed. He complained also that the influence of the Duchess of Kent had been used against him." Dr. EUiotson, in his evidence, states that the deceased called upon him, and chal- lenged him, and so forth, though he was quite a PREROGATIVE COURT OP CANTERBURY. 49 stranger to him, and wanted him to give him some- thing to make him have more intercourse with his wife. I think it is quite clear from this testimony of these physicians, that in the year 1843 the deceased was insane, and that he was incapable of making a will, or doing any act whatever requiring thought, and judgment, and reflection; for though he might converse rationally upon ordinary subjects, yet the fact of his having these insane delusions with re- spect to the infidelity of his wife, her committing adultery in the open day with her own father, with all manner of persons, with shopboys, with the waiters of hotels, with the soldiers of the Guards — his delivering the paper relating to the Archbishop of Canterbury, and the mode that was to be pursued to reconcile him to his wife — -the ex- istence of these delusions and strange fancies can leave no doubt whatever that the deceased at this time, in the year 1843, was of unsound mind, and incapable of making his will. To all this I may add, that there was the verdict of a jury in 1843, finding that the deceased was of unsound mind, and that he had been so from the preceding month of October, 1 842. The Court can, therefore, have no hesitation whatever in considering that the deceased was of unsound mind in the year 1843, Then the question is, whether he had recovered from that state of insanity. The onus prohandi that the deceased was of un- sound mind, I have stated, lay, in the first instance, upon the party alleging the insanity; but when once the existence of that insanity has been esta- VOL. I. E 1856. Jan. 26th. Dyce SOMBRJB against Troup, solaroli (intervening), and Pbissep, and tlie Hon. East India Company (also inter- vening). 50 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce Sombre against Tkotjp, solakoli (intervening), and Pbinsep, and the Hon. East India Company (alao inter- vening). Wished, as I think it undoubtedly has in the pre* sent case, then the onus prohandi is shifted ; then it is necessary that the party setting up the recovery from that insanity should satisfy the Court by dis- tinct proof that their averments are weU founded. The deceased having been for some time at Hanover Lodge, was permitted to travel ; and about the 9th September, 1843, he left Hanover Lodge, under the care of Dr. Grant. He traveled about with that gentleman; but on the 21st of that month, while at Liverpool, he escaped from Ur. Grant, and proceeded to Paris, and arrived there upon the 2 2d or 23d of September. He was shortly followed thither by Mr. Frere, who had been his solicitor, and who was the solicitor of the committees of the person. Mr. Frere took with him a keeper, and upon his arrival in Paris, he made an application to the English Ambassador, for the purpose of having, through him, an application made to the French authorities, that Mr. Dyce Sombre might be delivered up and sent back to England. However, it happened that the French authorities thought that such was not a proper course to pursue, and that it was not in conformity with the French law, considering that they were bound to inquire into the state of the deceased before they took that step ; and it was determined that an Investigation should take place, and that an Inquisition should be held. Ac- cordingly an Inquisition was held there, under the direction of Monsieur Delessert, the Prefet of Police ; and it was attended by two or three physicians, who were nominated by the French authorities for that purpose. And it now becomes necessary to see PREEt)GATIVE COURT OF CANTEUBTJRY, hi what the evidence before that Inquisition was, and what determination they came to with respect to the sanity of the deceased. I should, however, first refer to an authority upon the subject of the mode of examination in France and in England ; and I will now refer to a passage in Dr. Ray's Medical Jurisprudence, on the subject of the mode of examination which prevails in IVanee. He says, at page 246, and at section 268 : "In England, and in this country, the choice of the means for establishing the existence of insanity when concealed, is left to individual sagacity. This, no doubt, is sufficient, where great practical acquaint- ance with insanity readily suggests the course best adapted to each particular case ; but the great ma- jority of medical men will feel the need of some system or order of proceeding that will simplify their inquiries, and render them more efficient. The French arrange their means into three general di- visions or classes, which are made use of, each in succession, when the preceding class has failed of its object. They are called the Interrogatory, Con- tinued Observation, and the Inquest; and as no better arrangement has ever been oflPered, it may be well to describe it ; and it maybe added, in passing, that it would materially conduce to our success in inquiries of this kind, if they were always pursued in the course here indicated." So that he approves of the French method, and he thinks that it would be well if applied in all cases. First, there is the Interrogatory ; and he says that tliat " embraces only those means of information which are appli- E 2 1856. Jan. 26th. Dycb Sombre against Troup, solaholi (intervening)j and Prinsep, and the Hon. East India Company (also inter- vening). 52 CASES DETERMINED IN *HE 1856. JaD. 26th. Dtcb Sombre against Tkoup, solaboli (intervening), and Pkinsep, and the Hon. East India Company (also Inter- vening), cable in a personal interview with the patient. After learning generally his moral and intellectual' character, his education and habits of living, the duration and nature of his mental delusion (if it can be ascertained from his acquaintances), and the state of his relations to others, and after ob- serving the expression of his countenance, his de- meanour, and general appearance, we may proceed to a direct examination of his case" (an examina- tion of him upon Interrogatories). "He should be led to speak of his relatives and friends ;" and so forth. He states the manner in which that exami- nation should take place. Then, the next method is that of Continued Observation, frequent personal interviews, and constant watching, and inducing the suspected persons to write letters and state- ments of their wrongs and grievances.. The last is the Inquest : " "When the above means fail, our in- quiries must take a wider range, and be directed to the previous history of the patient, as made known to us by the testimony of friends and relatives," and others. "For this purpose we consult his writings ;" and so forth. So that, first, they are to interrogate the deceased; then, to consider his ha- bits and manners, and to get information from other persons as to these ; and, likewise, to consult any writings of his, if they can be obtained. Now, unfortunately, these French physicians do not seem to have had an opportunity of examining in all these respects. They examined the deceased in the form of Interrogatory; but it seems that they had very little besides. They had a letter from Sir James Clark, and that was all the instruction that PREROGATIVE COURT OF CANTERBURY. 53 they had upon which this gentleman was examined by them. The evidence given by Monsieur Delessert, the Prefet of Police, is this. He says: " On the 11th of October, 1843, the Commission appointed met in my office for the examination of Mr. Dyce Sombre. It was composed of myself, as President ; Dr. Chermside, Physician to the English Embassy ; Dr. Behier, one of the Physicians to the King of the French, and who, with Dr. Bouneau, was Physician Inspector of the Lunatic Asylums of this Depart- ment; Mr. Okey, English Lawyer, Counsel to the Embassy ; and M. Jennesser, Commissioner of Police. There was present also M. Baron Solaroli," Those were the persons who were present on the occasion. He then goes on to say, in reference to the deceased : " He looked very quiet; his features did not indi- cate any agitation. I began by explaining the state of circumstances under which the Commission met, the asserted lunacy of the deceased on the part of Mrs. Dyce Sombre, and the denial of it by Mr. Dyce Sombre himself. I then asked Mr. Dyce Sombre to tell us the reasons of his having been placed under restraint. He answered immediately, with the assistance of M. de Conches and Mr. Okey as interpreters, that he arrived from India in 1838; that he had subsequently married Lord St. Vincent's daughter; that for two years and a half he had lived very amicably with her, but then some friends interfered officiously in their private affairs, before any quarrel took place. He then said, that in April, 1843, he was placed under restraint in his hotel, watched day and 1856. Jan. 26lh. DrcE Sombre against Tkoup, solaboli (intervening), and Prinbep, and the Hon. East India Company (also inter- vening). 54 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce SOIIBBB against Tbottp, solakoli (intervening), and Pbinsep, and the Hon. East India Company (also inter- vening). liighit by servants during twelve days, and then desired to leave the house he lived in; that he refused; and then one day, when out in a car- riage, he was pulled out of it and taken to ano- ther house in Regent Street, where he was kept without inquiry from the 11th of April to the 1st of July, when a legal inquiry took place. During all the time that this restraint lasted he saw only Sir James Clark; Papers placed in a sealed box had been taken from him and never ^ven back; and tha,t he had not been permitted to see a Soli- citor, whose assistance he had requested." Now it is quite clear that those were untrue statements on the part of this gentleman, for he had not been re- fused the assistance of a Solicitor. He had been asked more than once whether he would, have a Soli- citor, but he declined to do so. He said there was a gentleman of the name of Cockerell whose advice he would take, and, nobody else, but Mr. Cockerell was in India. This circumstance is mentioned by the Solicitor of the Committee ; and it was also men- tioned by Mr. Barlow, the commissioner, to him, that he might have the assistance of a Solicitor, but he declined it altogether. Monsieur Delessert con- tinues: "He added, that in that house where he was so kept, the servants endeavoured to frighten hiija; they entered his bedroom suddenly when sleeping, placed themselves before the fire just to appear as phantoms" (that is the way in which he explains away the spirits) ; " that he was awakened by their proceedings, though not frightened." To the question to what person he attributed these proceedings, a,lid his restraint, he answered that he fEEROGATlVE COtJRT OP CANTERBURr. 55 "did not know, except it were to the East India Company" (so that the East India Company was the occasion of all this), " against whom he had a lawsuit." Then he is questioned as to the duel, and his answer is, that he did, by one of his friends, demand satisfaction of a person from whom he thought he had received provocation ; but a letter of explana- tion having been addressed to him by the person, the matter ended. That is all that is said about the duels ; yet, according to the evidence given, there can be no doubt of the fact that he had challenged a great number of persons ; that he had sent chal- lenges to several of the directors of the East India Company ; and that he had called out, or challenged, various other persons. Such is the account given by the Prefet. I come next to the account given in the Official Report. But I should state before I consider this, that it is laid down in that case to which I have already referred, the case of Waring v. Waring, that the account, and the statement, and the explanation of the parties themselves, cannot be received as suffi- cient, if they have any object whatever in view ; that is, if they have an opportunity of imposing upon the parties who are examining them, and they have any object in view, they will deny that which they would otherwise have admitted ; and that the insanity does not always come forth in the manner in which it was expected, because, generally speak- ing, if you touch: the chord of insanity, it is imme- diately responded to, and then the parties betray themselves; but if they have any object in view^^ 1856. Jan. 26th. Dycb Sombre against Trottp, solaroli (intervening), and Phinsbp, and tlie Hon. East India Company (also inter- vening). 56 CASES DETKRMINED IN THE 1856. JaD. ii6th. DrcB Sombre against Troup, solaroli (intervening), and Prinsep, and tlie Hon. £ast India Company (also inter- vening). for instance, escape from confinement — ^it is neces- sary to examine others, and to examine them closely, in order to ascertain what the real state of the case is. Now, in the Official Report this is stated : " The Prefet having then invited Mr. Dyce Sombre to give him the history of the events which have caused the sequestration of which he complained, and from which he had escaped only by flight, the latter answered by the interpretation of Messrs. Okey & Feuillet : That he arrived from Calcutta in London, on the 15th of February, 1838 ; that he married the daughter of Lord St. Vincent, with whom he has lived on the best understanding during two years and a half; that, later, some friends had improperly meddled in their affairs in a manner which had caused such trouble as had never been before between them. He says that, in the month of April last, by order only of two Physi- cians, he was confined in his hotel, and guarded day and night by servants ; that this lasted about twelve days ; that, finally, he had been required to quit the house he resided in, which he resisted ; and that, at last, one day, whilst he was taking a promenade, he was violently pulled out of his carriage, and con- ducted into another house situated in Regent Street, where he was watched over, without inquiry, from the 11th of April till the 1st of July, the day when the legal Inquiry took place. That during the whole time while this detention lasted he only saw the doctor. Sir James Clark, of whom he soli> cited with earnestness, but in vain, the favour of a public process." Now, he had seen many other PREROGATIVE COURT OE CANTERBURY. 57 persons besides Sir James Clark — Dr. Monro and others had visited him ; and Sir Charles Trevelyan, who seems to have taken a deep in- terest in this case, and to have been very favour- ably inclined towards Mr. Dyce Sombre, calls upon him in Regent's Park ; and Sir Charles Tre- velyan is satisfied that at that time, when he so visited him, he was not of sound mind. How- ever, this gentleman says that he was only visited by his Physician ; but it appears that his wife visited him during the time that he was in the Regent's Park ; " that papers which he had placed in a sealed box, and necessary for his defence, had not been delivered to him when he demanded them from Dr. Clark, to whom he had entrusted them ; finally, that he could not see an advocate, whose assistance he had required" — ^that Advocate being in India, and that being the reason that he could not see him ; and he was told that he was in India, and that he might have anybody else that he liked. He adds : " That in his house, the servants, no doubt in order to execute orders they had received, endea- voured to frighten him ; that they entered unex- pectedly into his room whilst he was sleeping ; that they placed themselves before the chimney, in which there was a fire, in order to feign shadows ; that all this awakened, but did not frighten him." That is the explanation which he gives as to the spirits ; because he had told Sir James Clark and others that he was visited by a white spirit, and by a black spirit, and at another time, I think, by a blue spirit ; and that he had been visited formerly, in India, by spirits in the form of the letter T. But now, all this is to be reduced to the mere statement 1856. Jan. 26th. Dtcb Sombre against Troup, solakoli (intei'vening), and Prinsep, and the Hon. East India Company (also inter- vening). 58 CASES DETERMINED IN THE 1856. Jan. 26th. Dycb SOUBRE against TaotJP, SOLAROLI (intervening), and Prinsep, and the Hon. East India Company (also inter- Tening). that the servants attempted to frighten him, by getting between him and the fire when he was in bed, and that this was done for the purpose of alarming him, and making him think that they were spirits. But it appears that these gentlemen had nothing before them but the statement of the poor individual himself ; they had no evidence except that letter to which I shall presently refer, viz., the letter from Sir James Clark, upon which he was examined. The report goes on to say: "The Prefet having asked him to what persons he thought he ought to attribute his sequestration, he replied : 'I am ignorant as to who could have provoked this act, somebody, however, who must have an interest in making me appear deranged ; for whUst I was in this illegal manner detained, and two days be- fore the legal inquiry, a physician, delegated by Sir James Clark, made me take a potion which gave me vertigo and giddiness — so much so, that I seemed to see the house turning over. Never before had I felt any similar thing, and never since this circum- stance has it been renewed. This lasted three days ; and it was under the influence of this draught that I appeiared before the Commissioners of Inquiry. I do not know to whom to impute these facts, if not to the East India Company, against which I have instituted a process which has lasted seven years.' " Now, certainly this is a most extraordinary statement upon the part of this gentleman. He directly charges Sir James Clark with sending another Physician to give him' a potion which was to upset his understanding and affect his reason for the space of three days; and that, during this time, they brought him before the Commission of PEEROGATIVE COURT OF CANTERBURY, 59 Inquiry, and the consequence was that he was incarcerated]. Surely, contrasting this statement of Mr. Dyce Sombre with the evidence of Sir James Clark and the evidence of all' the other Physicians who have been examined, there is but one conclusion to he arrived at. For to suppose that Sir James Clark, or any other of those per- sons, had been guilty of such improper conduct, seems to me to be quite out of the question. Then he is interrogated as to a challenge. " In- terrogated regarding a challenge to fight a duel ad- dressed by him to a person the name of whom was not asked, he said : ' Certainly I did address, by the intervention of a friend, a provocation to a person of whom 1 thought I had to complain ; but a letter of explanation, which he addressed to me, appearing to me sijfficient, this affair had no further con- sequences.' " These gentlemen think that, there- fore, there was only a single duel: he was asked about duelling, and they think that there was only one occasion of this kind, and this is the expiana-^ tipn that he thought proper to give upon that occasion of one of his proceedings. It was an act of delicacy in this gentleman and of forbearance that he did not mention the person whom he called out, and with whom he., was to have fought the duel. There is a total silence as to the challenges to the directors of the East India Company and the numerous other persons to whom he had sent challenges. Then comes the paper with respect to Article 20, which is referred to in the examination of Sir James Clark. "The Prefet asked Mr. Dyce Sombre what had been his connexions with the Archbishop 1856. Jan. 2Gth. Dyce SoitCBRE against Teocp, solaroli (intervening), and Pkinsep, and the HoM. East India Company (also inter- vening). 60 CASES DETEEMINED IN THE 1856. Jan. 26tb. Dtcb Sombre against Tttoup, SOLAKOLI (intervening), and Pkinsbp, and the Hon. East India Company (also inter- vening). of Canterbury, and he explained them imme- diately, thus : ' On arriving from India, I was bearer of a letter of recommendation from the Bishop of Calcutta for the Archbishop of Canter- bury. I saw him in order to give it to him, and I found myself a second time in his presence at the time of my marriage. It is to these two visits only that my connexions with him are confined.' " So that he confined his connexion with the Arch- bishop of Canterbury to those visits — one on his arrival from India with a letter from the Bishop of Calcutta, and the other to the time of his marriage. Then he speaks thus : " ' Regarding this matter, I ought to speak of a memorandum which I am deprived of, in order to make a weapon of it against me. During my detention, and for amusing myself, I wrote some jokes of this sort; I wrote, for instance, this among others: ' The Archbishop of Canterbury should send me a young girl ' — a bad joke, perhaps, but which was only for myself, and which should not have seen the day. Dr. Clark has preserved this memoran- dum.' " He knew that the memorandum was pre- served, and he knew that it had been sent, because it had been sent with the letter of Dr. Clark to the French authorities, those being all the instructions which they had for the examination of Mr. Dyce Sombre. But which account is the Court to take? Is it to take the account of this gentleman, that this was a scrap of paper which he had written for his own amusement, that it was a mere fancy, and that Dr. Clark had improperly possessed himself of it? Or is the Court to give credence to the evidence of Dr. Clark, that the deceased seriously and deli- PREEOGATIVE COURT OP CANTERBURY. 61 berately put this paper into his hand as a proposal, and that it should be carried into effect in the way which was described, and that in that manner a re- conciliation should take place between himself and his wife? If Monsieur Delessert and the physicians of Paris had had Sir James Clark before them, they could have interrogated him upon the point, and would have heard the account which he could give of it, and they would not for a moment have given credence, as they appear to have done, to the state- ment of Mr. Dyce Sombre on this occasion. " The Prefet invited Colonel Dyce Sombre to relate to the Commission the particulars of his flight and of his arrival in France. Mr. Dyce Sombre said : ' I was required to travel for my health, always accompa- nied by a physician and three watching servants. I have been to Bath, then at Liverpool, where I was detained in a house. In this latter town I found an opportunity to escape. I took ad vantage of it ; I escaped eight days after my arrival at Liverpool. I returned to London. I remained there two hours, and not finding any steamer going to France, where I wished to go, I took the railway, which conducted me to Southampton, where I embarked for Havre ; from there I went to Paris, where I arrived without money, so that I was obliged to sell the watch of my valet-de-chambre, which I had taken with me in my flight, as well as a pair of diamond buttons for shirt-sleeves, and a gold pencil-case.' Interrogated by the Prefet with all caution which delicacy prescribes, but however with all the authority which his character of magistrate gives him, regarding his position in respect to his wife, Mr. Dyce Sombre answered 1856. Jan. 26th. Btcb Sombre against Troup, solaroli (interveniog), and Prinsbp, and the Hon." East India Company (also inter- Teaing). 62 CASES DETERMINED IN THE 1856. Jan. 36th. Dtcb Sombre against Trottp, SOLAROI,! (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). that bis relations with her were good ; and in sup- port of this assertion he gave to the Commission the reading of a letter, dated the 6th of October, 1843, addressed to him by Lady Dyce Sombre, the terms of which proved the good understanding." Mrs. Dyce Sombre, who seems to have been a most kind wife, was at all times writing most kind letters, and seeing whether she could do anything for his comfort or his convenience ; he takes ad- vantage of this, and he produces one of her letters as if they were on good terms. But what was the last interview between them? Why, according to the evidence which the Court has recently ad- verted to, when she called upon him in the Regent's Park, he withdrew from her as it were with a sort of abhorrence, as if he could not bear her presence in the room on the occasion. He now states, with great calmness, that the relations between them were very good, he having, up to that time, charged her with having committed adultery with aU sorts of persons, including her own father. The two other physicians who were present on the occasion deposed pretty much to the same effect as Monsieur Delessert has done. When he is examined on interrogatories. Monsieur Delessert says, on the thirty-second interrogatory : " I put my questions in French, and they were translated into English, as before deposed. The deceased was not questioned as to any particular persons with whom he had charged his wife with having criminal intercourse. He was not questioned as to a charge made against her by him of having had incestuous connexion with her own father, or of having had sexual intercourse with the lowest persons, both PREROGATIVE COURT OF CANTERBURy. 63 before and after her marriage to him, and of having made a property of such conduct. The only ques- tion put to him on the subject of challenging to a duel, was that which I have mentioned. No name was introduced, none being contained in the letter of Sir James Clark." So that this was an exceedingly imperfect examination, for they had nobody to assist them even in interro- gating, since they had nothing but this letter of Sir James Clark, and this paper about the Archbishop of Canterbury, which the deceased explained away as a joke. He represented that he had no charges to make against his wife; that they were upon the best terms; and that there was only one duel which had been likely to take place, and that was accommodated without resort- ing to violent means. And upon this evidence it was that Monsieur Delessert, Dr. Bouneau, and Dr. Behier, came to the conclusion that the deceased was of sound mind at that time. And, indeed, I think they rather came to the conclusion that he never was otherwise than of sound mind; because, when I look to the deposition of Dr. Behier, I find him saying : " I entered on the investigation with a strong belief that Mr. Dyce Sombre was a lunatic ; but my opinion became completely changed. A letter was produced and read from Sir James Clark, suggesting the points of inquiry. The ques- tions were proposed by Monsieur Delessert, having that letter in his hand; but the physicians sug- gested several as the inquiry proceeded. Monsieur Jennesser acted as secretary to the Commission for the civil portion of its members, and I took notes for the medical branch. I drew up the report 1856. Jan. 26th. Dtce Sombre against Tkoup, solaroli (intervening), and Prinsep, and the Hon. East Ihdia Company (also inter- vening). 64 CASES DETEEMINED IN THE 1856. Jan. 26th. Dyce SOMBBE against TRonp, SOLAROLI (intervening), and Prinsep, and the Hon. East India compajtz (also inter- vening). which we made, the draft of which, as originally prepared by me, I hold in my hand. Every ques- tion received a satisfactory answer from Mr. Dyce Sombre. Several of them were delicate and difficult and embarrassing. He answered all with great calmness, giving many details when required. As the inquiry proceeded, I found that we had been led into error respecting him ; but we continued it throughout, in order to leave no part of the case uninvestigated. I might have been troubled to suppress my feelings, as he did his, had I been sub- jected to the same trial. I did and do feel strong indignation at the manner in which it had been endeavoured, and successfully as it appeared in England, to make Mr. Dyce Sombre a lunatic." So that upon the mere statement of Mr. Dyce Sombre as to the manner in which he had been treated, and as to Dr. Clark's conduct to him, his getting a paper from him, and his giving him this potion, Dr. Behier thinks that he had been exceedingly ill-used, for he says that he felt very strong indignation at the manner in which he had been successfully made out a lunatic. " I thought, and I now think, him an oppressed man. The examination was con- ducted by Monsieur Delessert with great skill as well as kindness." I dare say it was from the very scanty materials that he had before him; and he says : " Agreeably to Sir James Clark's suggestion in his letter, the name of the Archbishop of Canter- bury was mentioned. Monsieur Delessert having asked him a question accordingly, he voluntarily referred to a paper of which he gave us an account, very probably anticipating that it would be pro- duced; he entered into it fully, and so as to have PREROGATIVE COtJRT OF CANTERBURY. 65 an important beai'ing on my judgment respecting hira." I have no doubt it had an important bearing upon Dr. Behier's mind. " Another circumstance struck me forcibly. When asked who had caused his confinement as a lunatic, he answered that he did not linow. "Was it Mrs. Dyce Sombre? He did not believe it of her, and so on ; whereas it is observable with lunatics, that they have always some one on whom they fix as tlieir enemy." But in the report drawn up by these gentlemen, it appears that he said that it was the East India Company. " One other circumstance I re- member — he was very moderate in his expression of feeling towards Sir James Clark. When asked about poison, and if he believed any one to have a design of it against him, he laughed at the suggestion — No, he had not ; but he did think that, previous to his examination on the Commission in England 6ometh.ing had been given to him, not to do him permanent injury, but to take efifect upon him for the time ; and he explained how his head had been affected by it;" that is, he explained it in the manner stated in the Report, which was drawn up by Dr. Behier himself. Dr. Behier is exceedingly indignant at the manner in which this gentleman is treated. Now, I say, if this Inquiry was conducted without Dr. Clark or any other witnesses being called to depose to the facts, without any of the writings of the deceased being before this Commis- sion, and without their having any opportunity of knowing anything except what is declared by the deceased himself, this examination, as matter of evidence, cannot be put in competition with the evidence which was shortly before taken VOL. I. F 1856. Jan. 26th. Dycb Sombre against Tkocp, SOTAaOLI (interveniDg), and Prinsep, and the Hon. East India CoMPANr (also inter- vening). 66 CASES DETERMINED IN THE 1856. Jan. 36tb. Dyce SOUBBE against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- Tening), in England; and it cannot have the effect of proving that the deceased had entirely recovered from the insanity under which he had laboured; and much less should it have the effect of showing that he never laboured under any insane delusion whatever. But, in truth, that this conduct of the deceased was for the purpose of concealment, and that he still entertained the same opinions as to his wife — ^that he still entertained them, even at this time, when in Paris — is to be found in the evidence of other witnesses, and in the conduct of the party during the time that he was at Paris; because, very shortly after this examination had taken place, we find, from the evidence of Mr, Okey, that he still entertained the same opinion as to the conduct of Mrs. Dyce Sombre. Mr. Okey speaks of the arrival of this gentleman at Paris, and the Solicitor, Mr. Frere ; and of the ap- plication which was made to have him de- livered up; and, finally, of this inquisition being taken. Mr. Okey told him that he had received very kind letters from his wife, and the an- swer of the deceased was : " He did not doubt that his wife wrote fine sentimental letters, but her conduct towards him had been such, that it was impossible he could ever be reconciled to her again. Strangely at variance this declaration was with the continued preservation of her picture. In answer to my inquiry, what she had done so to excite him ? he replied, that she had put him in prison, for which he would never forgive her; also, that she had done things for which he had often threatened to cut off her little nose (which was a favourite expression PREROGATIVE COURT OP CANTERBURy. 67 with him). He added : 'I asked her to cover her face, as Women do in my country, but she would not.' 'Do they?' I asked. ' Yes,' he said; 'my sister does.' Then he said : ' Her conduct when I was in prison, was most shameful ;* she used to lie about with men on the grass in the Regent's Park (Mr. Q. D. he named, and Sir F. B.) in the most indecent manner.' " This is directly after his examination at Paris, when he said that he was on the best terms with his wife. " When I told him that it was a delusion, he said it was not; he had complained to Sir James Clark about it. He proposed to leave their disputes to the Jockey Club at Paris." This is immediately after his examination, when he was conducting himself to the entire satisfaction of Monsieur De- lessert and of Dr. Behier and of Dr. Bouneau, and satisfied them that he was of perfectly sound mind; but when his object is answered in that respect, immediately afterwards he repeats all those charges against his wife. " I replied, that it might be very well if Mrs. Dyce Sombre was a horse, instead of his wife. On one occasion he told me he was almost sorry he had not treated her as she deserved, and put her to a lingering death. I inquired what he meant. He said : ' You know she is a little woman ; I could have thrown her over my knee, and rasped her back, and then broken it with the but-end of my pistol,' accompanying his words with the double action of scraping and then rapping, as representing both proceedings ; upon which I told him that if he talked such mad stuff as that, I would give him up. On another occasion he said : ' Why does not the man take her; he is a rich man. I'll allow her F 2 1856. Jan. 26th. DycB Sombre against Troup, solasoli (intervening), and Prinsbp, and the Hon. East India Company (also inter- vening). 68 CASES DETEBMINED IN THE 1856. Jan. 26th. DtcE Sombre against Tboup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). a handsome sum, say three thousand a year; then she can go her way and I mine.' On another oc- casion he desired me to write to my half-brother, the late Colonel Gurwood, to remonstrate with the Duke of Wellington for inviting her to his parties." " It was as early as about the 6th or 7th of Novem- ber, 1843, that this insanity broke out respecting his wife, and it continued from that time, whenever her name was mentioned, as long as I continued to see him, till June, 1849." So that here is the evi- dence of Mr. Okey, deposing to these conversations immediately after the examiuation at Paris, in which he makes these charges against his wife, and his desire to refer their disputes to the Jockey Club at Paris ; he speaks of that and similar conversa- tions from that time, as long as this gentleman knew him, and down to the month of June, 1849, that month of June being the very month in which the will which is in dispute in this cause was executed by the deceased. But there is also the evidence of Mr. Q. D., who happened to be at Paris at the time when this gentleman arrived there, and when he under- went his examination. It was in October, 1843, that the examination took place before Monsieur Delessert. To the Twenty-fourth Article he says : " In the latter end of 1843 and beginning of 1844 I met the deceased in Paris frequently ; I went to the play with him, and met him at the Tuilleries, as well as in private circles. He complained to me, at my first meeting him in Paris, that his for- tune had been taken from him, and that he was not allowed enough to maintain him, and his wife was a party to it. He stated to me that it was a noto- PREROGATIVE COURT OF CANTERBURY. 69 rious fact that she was guilty of many infidelities. On my reasoning with him upon the impropriety and unreasonableness of such accusations, he stated that it was a matter of perfect notoriety that I and others were in a conspiracy to conceal the truth, that her father, Lord St. Vincent, had had con- nexion with her before her marriage. On my expressing indignant surprise at such a charge, he said it was quite true, and Sir James Clark would prove it." Now, again, this is directly after his examination at Paris that he makes these charges : he repeats them, and he says that there is a con- spiracy against him, and that he knew Mr. Q. D. was one of the conspirators ; and that Sir James Clark would prove the facts. Sir James Clark was to be his witness on this occasion, to prove that his wife had been guilty of all those infidelities; and I cannot help thinking that it was with the cunning which belongs to madmen, that, having an object in view at the time of his examination before Monsieur Delessert and the physicians, he concealed the opinion he entertained, which possessed him at the very time. Now, Lord Brougham, in that Judgment to which I have before adverted, speaks of the manner in which insane persons will conceal insa- nity upon a particular occasion, when they have any object in view. He says that Dr. Willis on Mental Derangement, page 151, clearly states that men often mistake for a lucid interval the mere absence of the subject of delusion." Then he pro- ceeds to mention the well-known instance, which is reported in the State Trials, of the indictment of Dr. Munro by a person of the name of Wood, for ille- 1856. Jan. 26th. Dyoe SOMBRB against Troup, sol/vroli (intervening), and Prinsep, and the Hon. East India Company (also Inter- veaing). 70 CASES DETERMINED tUt THE 1856. Jan. 36th. Dtcb Sombre agaimt Tboup, S01.ABOLI (interveniiig), and Pbinbbp, and the Hon. East India Company (also inter— veoing). gaily confining him when he was of sound mind ; that upon the first examination in court upon the indictment, a question was put to him which im- mediately elicited his insanity ; and then it was perfectly obvious to every one that Dr. Munro was justified in what he had done. But this person brought a second action, in which he again gave evidence, when it was found quite impossible to extract anything from him : they might mention to him the subject of his insanity, and try him in every possible way, but they could not elicit it from him in any way ; and if they had not had an oppor- tunity of calling in the short-hand writer who had taken notes of the evidence on the former trial, Dr. Munro must have been convicted of having illegally confined this person as a lunatic when he was of perfectly sound mind. This is a remarkable instance of the manner in which lunatics will, upon particular occasions, and when they have a particular object to carry out, deceive the parties who examine them ; and this power of concealment is admitted by all the physi- cians who have been examined both on one side and the other in this case — very skilful, able, and experienced physicians. They seem to think that though in their own case they could always detect insanity, yet that others are very frequently imposed upon. And I cannot help thinking that Monsieur Delessert and the two physicians who assisted him had so little means of examining and knowing what the real state of facts was, that they were deceived upon this occasion, and that the deceased entertained but hid from them the same insane opinions which he held when he was in England, and that this is PBBROGATIVE COUET OP CANTERBUBY. 71 pretty clearly shown by the evidence of Mr. Okey and of Mr. Quintin Dick almost immediately after the examination had taken place. Now such is the evidence in 1843. Then in 1844 there is very strong evidence to show that the deceased was then insane ; but I need not refer to any particular evidence bearing upon that time. But it should seem that this examination, which took place in Paris, is not the only inquisition which has been taken in foreign countries ; for it appears that the deceased, armed with this docu- ment from Paris, proceeds to St. Petersburg, and there an examination likewise takes place at his in- stance. He produces before certain learned physi- cians there this acquittal from Paris ; and he also states that, owing to great misconduct in England and to a bribed jury, he was there found to be an insane person, and accordingly they are satisfied at St. Petersburg that he was of sound mind. Then the same sort of thing takes place at Brussels, in the year 1845. Now at that time he had entered into a treaty with a gentleman of the name of Mahon, and he had contracted to pay Mr, Mahon the sum of £10,000, provided he should, by his exertions in obtaining evidence and procur- ing physicians to certify to his sanity, obtain the supersedeas of the Commission, and be put in pos- session of his property. Accordingly, an examina- tion of the deceased took place at Brussels in 1845 ; and it may be important to see what one or two of those persons who so examined him state. Mr. Black- wood is an English surgeon, resident at Brussels. He says that in 1845 the deceased, referring to the peculiar circumstances of his case, expressed a wish 1856. Jan. 36th. DyoE Sombre against Teoup, solaboli (intervening), and Prinsbp, and the Hon. East India Company (also inter- vening). 72 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce SOMBRB against Tkodp, solaroli (intervening), and Prihsep, and the Hon. East India Company (also inter- Teniog). to obtain a certificate, in order that the Commission of Lunacy in England might be superseded, and that he had already obtained a certificate of that kind at St. Petersburg. "Accordingly, on the 11th of June," he says, "I met Dr. Seutin in con- sultation, and we examined him together. On the 12th of June we again met, Mr. Mahon being then also present. On the next day, the 13th, I met Dr. Seutin again, the Advocate Theyssens being present for the purpose of legislation if wanted. The result was, that it was agreed to have a more extended and regular examination of the deceased, which took place accordingly on the 14th, Dr. Seutin having procured the attendance of Dr. Guislain, from Ghent ; Dr. Vleminckx, Presi- dent of the Royal Academy of Medicine in Belgium and Director of the Military Hospitals ; and Dr. Crommelinck, proprietor of a lunatic asylum here ; Mr. Mahon and myself being also present." So that upon these examinations, and upon all subse- quent examinations which have taken place, except those which have been conducted under the autho- rity of the Ivord Chancellor himself, Mr. Mahon was a constant attendant upon the physicians. He was the person who had made a contract with the deceased to give up his time, in order to procure medical men, and through their means to obtain a supersedeas of- the Commission against him. " On the^l6th of June there was a stiU further examination of the deceased, in the presence of the last-named persons, excepting Dr. Guislain. On every occasion the deceased was examined as care- fully and closely as was possible to us, and on all points which we had reason to think most likely to PREROGATIVE COURT OP CANTERBURY. 73 make manifest a delusion, if any existed. I re- member particularly that tlie report of his exami- nation at Paris was here for our guidance," exactly as it had been at St. Petersburg. " There was no shrinking on his part from any point of inquiry, and no wilful omission on ours. His replies were prompt, collected, consistent, betraying no symp- tom of insanity or delusion. On the 14th, as I recollect, a certificate was signed by all of us as to the entire competency of the deceased to manage his aflfairs. That was Saturday; and we agreed to meet again on the Monday following, all but Dr. Guislain;" So that they were all agreed upon this matter. But now let us see what this gentleman says in a later part of his examination. It is upon the eighth interrogatory. " I did not understand from the deceased that he had seen Lord Lynd- hurst ; he spoke to me about his lordship re- peatedly. At the time, or shortly afterwards, I could have fully compHed with the direction to set forth what he told me concerning those interviews and concerning his lordship. All that I can now state specifically and distinctly is this : that he could have had his supersedeas and his divorce too, if only he would have bound himself to marry Lord Lynd- hurst's daughter." Now really this is a most ex- traordinary thing to bring forward as an instance of the perfect sanity of this gentleman. They all testify to his being sane at this time ; they are as- sisted by Mr. Mahon ; they have got this certificate from Paris, and one from St. Petersburg likewise; and yet this poor individual gravely tells them that he could have got his supersedeas, and that 1856. Jan. 26th. Dtce Sombre against Troup, solaroli (interrening), and Prinsef, and the Hon. East India Company (also luter- Tening). 74 CASES DETEKMINED IN THE 1856. Jan. 36th. Dyce Sombre against Troup, solaroli (intervening), and Prinsbp, and the Hon. East India Company (also inter- vening). he could have got his divorce too, if he would have married Lord Lyndhurst's daughter. It seems to me, therefore, that we cannot rely upon this testimony, which was so got up at Brus- sels by Mr. Mahon — who had a deep pecuniary interest on the occasion, and who placed the ex- amination before the physicians — who was pre- sent upon the occasion, as we shall find that he was on all subsequent occasions when the examination of this gentleman was to take place. They certify to the perfect and entire capacity of the deceased at this time ; and yet one of the persons who signs this certificate gives this account of what the de- ceased said about what would have been the case if he had consented to marry Lord Lyndhurst's daughter. So much, then, for the foreign examinations. The one at Brussels was in 1845. Then, I think, in 1846 an examination takes place at Dover by Dr. Bright and Dr. Southey, under the authority of the Lord Chancellor. What Dr. Bright says is this : that under the direction of the Lord Chan- cellor he visited Mr. Dyce Sombre in Half Moon Street — ^that was in the month of June, 1844; and he visited him there in conjunction with other physicians. I think one or two of the physicians call it Clarges Street, but it is quite evident that they mean the same place. Sir James Clark and three or four others visited him in 1844, and they found him under insane delusions at that particular time, and each of them has been examined; two of them, I think, speak of their visits as if in Half Moon Street, and two others as if in Clarges Street; PREROGATIVE COURT OP CANTERBURY. 75 but they speak of having visited him at the same time, and therefore there can be no doubt that that examination took place in the year 1844, in one or other of those streets, and under the authority of the Lord Chancellor ; and they came to the con- clusion, from conversation which they had with the deceased upon, that occasion, that he was then insane. Dr. Bright says : " There were present Sir James Clark, Dr. Monro, Dr. ConoUy, and my colleague, Dr. Southey. On the 24th of July following I saw the deceased in company with Dr. Southey at the house, and in the presence of Lord Lyndhurst, in George Street, Hanover Square. I saw him again on the 21st and three following days of September, 1846, at Dover, in company with Dr. Southey. Again, in August, 1847, at Brighton, on more days than one, certainly two, with Dr. Southey only." Then he says that he again saw him at Mivart's Hotel, in November, 1848. ■ With regard to the examination at Dover, he finds him to be of unsound mind at that time, and so does Dr. Southey, who was present upon that occasion ; and he so conducted himself as to, leave no doubt upon their minds that he was labouring under a delusion at that particular time. It is quite clear, also, from the evidence of the two persons in whose house the deceased was lodging at that time, that he was in a state of insanity, because both the husband and the wife hear this gentleman walking about his own room talking to himself and saying : "Damn her; I will kill her; I will murder her; she shall be no wife of mine;" and conducting himself in that manner. And they 1856. Jan. 26th. Dtce Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). 76 CASES DETERMINED DST THE 1856. Jan. 26th. Dtcb SOUBRB against Tboup, solaroli (intervening), and Pbinsep, and the Hon. East India Company (also inter- vening). speak of it so as to leave no doubt whatever that he meant his wife, during the time that such ex- pressions were used. I do not know that it is necessary to enter into the particulars of the evidence of these gentlemen at Dover, Dr. Bright and Dr. Southey, respecting what took place as to the deceased continuing to labour under delusions respecting his wife (to which they most distinctly depose), because, in a subse- quent examination, in the year 1847, which took place at Brighton, when Mr. Dyce Sombre told them, or at least endeavoured to tell them, that he had got rid of those insane notions with respect to his wife, he distinctly admitted that it was since the time when he was at Dover; that he did en- tertain them at that time in Dover, viz., in 1846, at Dover ; and that it was subsequent to that time (so he tells them at Brighton) that he had got rid of those notions. So that there is the admission of Mr. Dyce Sombre himself, that up to the year 1846, and at the time of the examination at Dover, he did entertain the same insane delusions as to the infi- delity of his wife. Now, with regard to what took place at the exa- mination at Brighton, in the year 1847 : Mr. Dyce Sombre came over from France for the purpose of being examined by Dr. Bright and Dr. Southey at Brighton, upon that occasion ; and it is remarkable that upon his arrival at Dieppe, he there meets with Mr. Okey, and he tells him that he is going to England. He is asked the object of his visit, and he says it is to tell the Chancellor what a damned bitch his wife is ; showing, therefore, that he enter- tained the same opinion at that time as he had PREROGATIVE COURT OF CANTERBURY. 77 done upon a previous occasion as to her infidelity. And yet when the physicians come to examine him, he tries to parry their questions, and says that he has got rid of that delusion ; but this he does in such a way as to convince them that the delusion still prevails, for that is the opinion of Dr. Bright and of Dr. Southey ; and they entertained no doubt whatever upon the subject, either when they saw him in Half Moon Street in 1844, or when they exa- mined him at Dover in 1846, or at Brighton in the year 1847. The Court has seen that Mr. Dyce Sombre had sufficient cunning of himself at that time to parry the examinations that were made of him, as he had done at Paris. But it is important to see whe- ther that was not strongly advised and recom- mended; and whether it was not pressed upon him over and over again by Mr. Mahon and others, that he should conceal his delusion in this re- spect, that he had no chance of recovering his liberty unless he did conceal it, and unless he did state that that delusion had passed away. Over and over again is that caution given to him by Mr. Mahon and by many other persons ; but it is given more especially and more emphatically by Lord and Lady C, who have taken an active part in this matter. There is a letter from Lord C, which is dated in 1847; there are indeed earlier letters of the same kind, but this letter goes to the examina- tions which subsequently took place, namely, those in 1848, in December, and also in November, when he was examined by the Chancery physicians. Lord C.'s letter is to this eflfect: "You should 1856. Jan. 26th. Dyce SOMBKE againit Troup, solaroli (intervening)) and Pbinsbp, and tlie Hon. East India Company (also inter- vening). 78 CASES DETERMINED IN THE 1856. Jan. 36th. Dtcb Sombre against Thottp, solaroli (inteTTening), and Prinsep, and the Hon. East India COMPANT (also inter- vening). come to Dieppe, and there wait till you get the permission to come over to Brighton, to be exa- mined by Drs. Bright and Southey." So that he was preparing him for this very examination at Brighton. " If you answer their questions -coolly, and in a few words, they must declare you to be in such a state as to render you quite fit to have your liberty and property, which, I think, have been so unjustly withheld from you. I hope when you are examined, that you will say as little as you possibly can about Mrs. D. S. You should, I think, say that whatever delusion you laboured under some time ago, it has left you." It is advice not only about what he is to conceal, but what he is to say. He is to be prepared for these examinations. He is to be crammed for them, as it is sometimes ex- pressed : " You should, I think, say that whatever delusion you laboured under some time ago, it has left you, as you became divested of your eastern no- tions and feelings about women ; and further, that there is no longer any danger of your being jealous of her " (not that you are convinced that you have been under error and under delusion), " inasmuch as you have lost all love, admiration, and affection for her, and that no power upon earth should induce you to live with or go near her again. You should say, also, that it is your wish to go to India for the benefit of your health, and in order to look into and arrange your affairs. Let me know on what day you will be at Dieppe. I will go down to Brighton when I hear that you are to be there." So that he is to go down and assist him upon this occasion. Now it so happens, I suppose, that he did not render him that assistance, that he was PEBROGATlVE COURT OP CANTEEBUEy. 79 not there upon that occasion, because Mr. Dyce Sombre himself, when he is speaking of this exami- nation, mentioning it in his book, says : " But what could I do when left by myself ? I had nobody to support me, so that I was obliged to say what they would have me say." So that he did not conceal the delusion thoroughly and effectually upon that occasion ; and the consequence was, that Dr. Bright and Dr. Southey reported in the manner which I have already stated. Afterwards, indeed, at the examination in December, 1848, he had that assist- ance, for he had Mr. Mahon there, who was present and assisting upon the occasion, and Mr. Prinsep was likewise present during part of that examina- tion. He was called in when there was any diffi- culty ; if there was any difficulty that wanted explanation, then Mr. Mahon and Mr. Prinsep were to give the explanation. I have referred to the letter and the advice of my Lord C, who says that he will go down to Brighton upon the occasion and assist the de- ceased. Then we have a letter from Lady C, and that is to this effect: "Dear Colonel Som- bre, I write to congratulate you on the happy turn your affairs have taken lately." She alludes to the use of his whole income. The last Chancellor refused to let him have the income of his whole pro- perty; he was allowed to have part of the income, but that was all. "I write to congratulate you upon the happy turn your affairs have taken lately ; be assured that we feel most sincerely rejoiced at the prospect of your speedy release from con- straint and persecution. Lord C. is most anxious that you should take his and Mr. Mahon's advice 1856. Jan. 26tb. Dtcb Sombre cu/ainst Tkoup, solaboli (intervening), and Pkinsep, and the Hon. East India COMPANT (also inter- vening). 80 CASES DETERMINED IN THE 1856. Jan. 26th. DyoB Sombre against Tkoup, solakoli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). upon eyery point." That advice upon every point is, that he is to say that he gives up his delu- sions; that he no longer has any belief in them ; that he does not think his wife has been guilty of the adultery with which he has charged her, and of incestuous intercourse with her father, and of con- nexion with the very numerous gentlemen who have been mentioned, who have utterly denied all ap- pearance of it; and that he gives up his belief that she has had connexion with the waiters and with the common soldiers in Hyde Park in the open day. All that is to be abandoned. " Mr. M.," that is, Mr. Mahon, " is, I am sure, a trustworthy person, and seems to understand and feel for your position thoroughly. Now, my dear Sir, on your prudence in this emergency depends your fate through life. Guard every word and action ; and whatever your opinions are," (not only whatever your delusions are, and you know they are, and you wilfully confess they are, aiid you are sure they are, but " whatever your opinions are",) " keep them to yourself, for there is no sort of comparison between the petty vengeance of expressing your suspicions and the far greater triumph of defeating your enemies now by your own liberation, and deferring to a later period the exposure of their evil intentions and unkindness towards you. No one will believe the possibility of any one having made the confessions you so often alluded to." That is, he had not only charged his wife with committing these acts of adultery and with this incestuous intercourse with her father, but he had declared that she had confessed those acts to him, and at another time that Lord St. Vin- cent had confessed his own crime to him. " No PREROGATIVE COURT OP CANTERBURY. 81 one will believe the possibility of any one having made the confessions you so often allude to, and I have heard from a person used to such transactions" — I really do not know what these transactions are, or who the person is with whom this lady asso- ciates — " I have heard from a person used to such transactions, that the object of making those con- fessions was to induce you to repeat them, and thus, by asserting what appeared impossible, to give this proof of insanity; for who could believe that such self-accusations were possible? And yet they were made with the object I just noticed. Trusting that you will be prudent, and above all- things very quiet and abstemious, I wish you all the success you can desire for yourself;" and so forth. I think that this is a way of preparing a man to carry his point. He is recommended not to follow his own opinions, as, if he does, he will not get free. Therefore it is quite clear that it is in obedience to this pressing by Mr. Mahon, to this pressing by Lord C, and to this pressing by Lady C, that he says he gives up these delusions, though in fact he still entertains them. Then there is another letter from my Lord C. in 1846: "I regret much that you will not take my advice, as well as that of Prinsep, &c. ; indeed there is only one mode of proceeding, namely, that of signing the amended petition, which will lead to a final, and, I trust, satisfactory settle- ment of your unfortunate affairs. As to my speak- ing privately to the Lord Chancellor, it would be of no use to you, even if he would listen to me, which it would be irregular and improper for him to do. I have only to repeat (and for the last VOL. T. G 1856. Jan. 26tli. Dtcb Sombre agninat Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also iuter- veniug). 82 CASES DETEEMINED IN THE 1856. Jan. 26th. Dyce SOMBRB against Tboup, solaroli (intervening), and Pkinsep, and the Hon. East India Company (also inter- Tening). time) my recommendation to you to sign the amended petition without loss of time." This is the advice which is given by his lordship. He says in another letter : " Do not let anything irri- tate you, and when questioned by the Lord Chan- cellor, &c., avoid all remarks upon the past conduct of your wife, and say as little as pos- sible upon the only subject that excites you." So that here is a preparation for these examina- tions by Mr. Mahon, by Lord C, and Lady C. ; and he is to follow the advice of Mr. Mahon and of Mr. Prinsep when he undergoes these examinations. However, in 1847, the examination at Brighton failed, as it had done before. Dr. Bright and Dr. Southey reported against the propriety of super- seding the Commission, and the consequence was that it was not superseded. Another petition is afterwards presented to the Lord Chancellor, in order that this matter might be again investigated, and whether the Commission might not be superseded. I think there are no less than six petitions to the Lord Chancellor to have this Commission superseded. I believe the sixth was not acted upon, Mr. Dyce Sombre having died. After the examination to which I have adverted, by Sir James Clark and others at Mivart's Hotel, in November, 1848, there was an examination by physicians selected by Mr. Mahon — very eminent physicians, and whose character is entitled to great weight — ^namely, Dr. Paris, the President of the College of Physicians, and other very eminent men, who, no doubt, meant to depose, and have deposed, as far as their knowledge extended, to the facts of PEEEOGATIVB COURT OF CANTERBURY. 83 the case with great truth and propriety. But, first of all, it will he necessary to see what was the posi- tion of those physicians who examined Mr. Dyce Sombre at Mivart's Hotel in November, in the year 1848, under the authority of the Court of Chancery. Those physicians are four in number — Sir James Clark, Dr. Bright, Dr. Southey, and Dr. Martin. I think Dr. Martin was selected by the deceased himself upon the occasion. Upon the forty-sixth and forty-seventh articles, as to the examinations at Mivart's Hotel in November, 1848, Sir James Clark says: "On the 1st, 2d, and 6th days of November, 1848, I was in attendance at Mivart's Hotel, and took part in the examination of the deceased, Dr. Bright, Dr. Southey, and Dr. Martin, being also present for the purpose of that examination. I signed a joint report as the result of the inquiry. 1 do not doubt that the minutes or exhibits now shown to me contain a correct account of what passed." And it is important that we should see those minutes, because, in point of fact, they contain the only information which was given to the physi- cians, Dr. Paris and others, as to the points to which they were to examine, except those other matters which might be suggested by Mr. Mahon and Mr. Prinsep, who were present upon the occasion. But as to the evidence of all that had taken place upon former occasions, of the nature of the charges, oif his being visited by spirits, of his apprehensions of poison, and all the other subjects which have been adverted to, they do not seem to have had any information nor anything whatever laid before them, except what is to be derived from this exa- mination and the report of what took place at G 2 1856. Jan. 26th. Dycb SOMBRB against Troup, solaroli (interveDing), and Prinsep, and the Hon. East India Company (also inter- Ten iog). 84 CASES DETEBMTNED IN THE 1856. Jan. 36tli. Dtcb Sombre against Troup, solaroli (iaterrening), and Prinsep, and the Hon. East India Company (aUo inter- vening). Mivart's Hotel. " I was and am very decidedly of opinion that the deceased at that time continued to be of unsound mind. It is to be remembered that latterly he got more cautious than he had been at an earlier period, and so he fenced with the ques- tions." And 1 think that this is the true description of the examination, when you come to look at the minutes which were taken down by the short-hand writer upon that occasion. He fenced with the ques- tions, and he had been prepared to fence with them by the advice which had been given to him by Mr. Mahon, and by the strong recommendations of Lord and Lady C. He had been advised to conceal his sentiments in that respect. " He pro- fessed to have given up as a delusion the infidelities which he had charged upon his wife." They told him, Whatever your opinion is, you must ^ve up that, for nobody wiU believe it — ^nobody will be- lieve these impossibilities: that she has had con- nexion with her father, and that she has confessed it, and that the father has confessed it. " He pro- fessed to have given up, as a delusion, the infideli- ties which he had charged upon his wife, but he did not impress me with the idea that he was less under the power of the delusion. On the 1st of November, he stated that he must have been under delusions with regard to her; that he exonerated the physicians who gave their opinion on his state of mind, in 1843, and that the conclusion of the jury was just as far as respected her conduct. But on being asked whether he was satisfied that Mrs. Dyce Sombre having confessed her guilt was a delusion, his reply was, ' I believe she denies that.' " Now one of the other physicians, upon a former occasion (Dr. Conolly, I think), who has PREROGATIVE COURT OF CANTERBURY. 85 been examined, says that when he mentioned to the deceased his having given up this delusion, he immediately broke out and said, " Who the devil told you such a damned lie as that?" There- fore, upon this occasion he conceals his thoughts. He says, "I believe she denies that;" that is the way he answers it: he does not say, I was under a delusion ; I confess that I was. I am very sorry that I made these charges against her. That indeed would have been the natural conduct of a man who had recovered frOm an in- sane delusion and had become a person of sound mind ; but the answer is, " I believe she denies that.'' Then Sir James Clark says: "This reply, with several others, showed that he was by no means satisfied of her innocence. His belief in spirits he then denied, but he appeared to be capable of dissembling his delusions, and even of inventing stories to explain them. His manner, I often found, during all my attendance upon him, remarkably quiet and even self-possessed for ordi- nary purposes and subjects having no relation to his delusions." So these physicians say, upon other occasions, that he answered with great calmness. " On the subject of Madame Solaroli's illegitimacy, I must assume that the reasons assigned by him for knowing or believing in it were the offspring of his own mind, mere inventions, not only un- founded, but irrational. His manner appeared to me to indicate more caution, rather than less delusion." The impression, then, upon the mind of the witness was that he exhibited more caution ; yet that upon these several points, and upon the point of the illegitimacy of Madame Solaroli, which is a point that did not arise till a later period of his 1856. Jan. 26tb. DrcE SOMBKE against Tbocp, Solaroli (intervening), and Prinbep, and the Hon. East India Company (also inter- vening). «6 CASES DETERMINED IN THE 1856. Jan. 26tb. DrcB Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). insanity, the deceased was insane. Then he goes on to say, that at that time Mr. Dyce Sombre con- sidered that there had been something put into his food^-not so much as a poison, perhaps, as to injure his procreative powers. That appears to have been the opinion which this poor man enter- tained — that sometimes it was for the purpose of poisoning him, and sometimes for the purpose of injuring his procreative powers. He believed that poison had been administered to him at the Trois Freres Provenceaux, where he had dined, at Paris: when he was ill at dinner, he thought that he had been poisoned. Again, Dr. OUiffe, who was exa- mined on behalf of the executor to the sanity of the deceased, says that, upon one occasion, the deceased told him that the brandy had been poisoned, and Dr. Olliflfe, to convince him to the contrary, drank some of it himself; the deceased was not satisfied, and Dr. OUiffe promised to take home some of it and analyse it, in order to prove that such was not the case. That he had a belief in poison is quite evident from the entry which he makes in his pocket-book or in his journal when he is at Naples; he considers that he has been poisoned there; " it is a remarkable thing, because it is exactly at the time and in the place" (he says) " that Baron Solaroli, at Venice, had told him that it would be so." So that it is quite clear that this delusion was going on at the time when he made that entry, and also when he published the book which must afterwards be referred to. Dr. Bright, on the Fifty-sixth Article, referring to the examination at Brighton, says : " When urged to write or express regret at the pain that he must have caused his wife by his unfounded PREROGATIVE COURT OE CAOTERBURY. 8^ suspicions, he said he would not do so without consulting his lawyers; and that if he acted upon the impulse of his own heart and feelings, he should never obtain his freedom from the Court of Chancery." That is, that he never should give up that idea. Therefore, it was only in consequence of the advice which was given him, and which was so strongly urged upon him, that he feigned to give it up. Dr. Southey, who had examined the deceased at Brighton and at other places, says: "On every occasion when I was in company with him, I firmly believe that he was labouring under delu- sions which rendered him of unsound mind. Viewed by itself, I might hesitate to consider his conduct towards the Baron Solaroli, of whom he spoke in very strongly opprobrious terms, as the ofi'spring of insane delusion; but taken in con- nexion with other delusions, and with the incon- sistent reasons by which he attempted to justify his opinions, I can attribute it only to insanity." One and all of these medical persons who exa- mined the deceased on the occasioin — Sir James Clark, Dr. Bright, Dr. Southey, and Dr. Martin- came to the conclusion, in 1848, that he was of unsound mind. There is the evidence which was taken down on the occasion by a short-hand writer, who was admitted at the express request of Mr. Dyce Sombre himself. Probably he thought that he came fully prepared on this occasion, having received advice how to conduct himself, and he was prepared to make these admissions, so far as his state of insanity would allow him to do; and therefore, whatever his opinions might be, he was desirous that the evidence should be taken down, 1856. Jan. 26th. Dyce SOUBBE Troup, solakoli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). 88 CASES DETERMINED IN THE 1856. Jan. 26th. Dyce SOMBHE against Troup, solaroli (interTening), and Pkinsep, and the Hon. East India Company (also inter- Tening). to show that he had given up those delusions. He is examined j many of the questions do not seem to be very important, or to elicit anything* " Up to the period when we saw you at Dover, you were labouring under certain delusions?" His answer is; " I had just returned from St. Petersburg, where 1 had been, and I had been reflecting on these things; on my return from St. Petersburg, I re- mained some time at Brigh.ton, and I thought a great deal about these things. I went to Paris, and from there I came to meet you at Dover. The first day I saw you, I said that, having reflected upon the disinterested opinion you gave on the subject, my mind was quite clear that, whatever I might have thought before, I must have been labouring under delusions and acting on them." In another place he says, I think, " I was obliged to do it, for I was there by myself, and was obliged to speak what they would have me say." The next question is: "Therefore I wanted you to state that in the presence of Sir James Clark, because that completely exonerates Sir James Clark and all the medical men who saw you in 1843; it exonerates them from the opinion you suppose they gave?" He answers "Yes." And then comes the question, " And it is your own conviction that the jury were justified in coming to the conclusion that you were of unsound mind when they did come to that conclusion?" The answer is, "As far as con- cerned Mrs. Dyce Sombre's conduct;" because that, it had been told him, was the only point which he had now to clear up ; that, if he would but admit that that was a delusion, then he tEEBO'GATlV^ COUKT OF CANTERBURY. 89 would get his supersedeas; so his answer is: "As far as concerned Mrs. Dyce Sombre's conduct." " There was ground enough at that time to suppose you were of unsound mind, at the time the jury found that verdict?" " Yes." " Therefore you do not entertain any hostile feeling towards the per- sons who sued out that Commission?" "I have none ; only it would have been better if I was not so much worried and annoyed about those things. If it had been left quietly to one or two physicians, I would not, perhaps, have had my mind so much annoyed and worked up about these diflFerent things. But there were too many examinations, I thought; and there was not only Sir James Clark, I believe in 1844, but there were not less than ten or twelve doctors, who examined me at different periods." "That was after the Commission?" "Yes." Further on he is asked : " You stated that once to Drs. Bright and Southey at Dover?" " Yes, that those were my impressions." So that he had those impressions upon him. " They were effaced some- what during our interview; they were not in full existence at the time of our first interview?" " That is your report." " At the first interview you did not seem to be fully convinced of Mrs. Dyce Sombre's purity?" "That was in 1844." That was an admission at that time that he did not think her pure. " Did you see Count Nesselrode at St. Petersburg?" "Yes." "Had you any com- munication with him?" "I was in the steamer with him ; like other people he talked on different subjects." Now before he had said that Count Nes- selrode had told him of all these matters as to his wife. "I was in the same steamer with him ; like other 1856. Jan. 'i6th. Dycb Sokbrb against Troup, solasoli (interTeniiig), and Pkimsep, and the Hon. East India. COMPANT (also inter- vening). 90 CASES DETEBMINED IN THE 1856. Jan. 26th. Dtcb SOMBKE against Tbotjp, solaroli (intervening), and Pkinsep, and the Hon. East India Company (also inter- vening). people, he talked on different subjects." "Con- cerning Mrs. Dyce Sombre, amongst others?" "He made some allusions to what the report was at the time." "Did he mention any particular person to you at the time?" "Not that I re- member now." " Has that impression remained firmly on your mind ever since ?" " Not since 1846." That was the time when he was at Pover; not since that time. "It has not remained?" " No." " You are not satisfied that it was a delu- sion before that period that you were labouring under?" " Certainly. What I have just been saying is, that when I came to Dover, it was with a firm mind to tell Dr. Southey and Dr. Bright, that after consideration I had come to the determi- nation that I think I might have acted under delusions; that as I had no proof, the best thing for me was to consider it sp. There was no proof of any guilt; but since then, as we are not of the same thinking, as our characters are not the same, why it is much better that there should be no talk or proposal of our living together again." Exactly what Lord Combermere told him to say. " Still your mind continued satisfied since 1846. You have not changed your mind?" "No." The delusion was that he had seen her himself having sexual intercourse in the Park with common soldiers and with a variety of. people. Now he puts it that there is no evidence, and therefore it is best to give it up. "You are, saitisfied that the confession on the part of Mrs. Dyce Sombre of her guilt — ^you are satisfied that that was a delusion,, and that she never did ;make such a confession." He does not answer, Yes, I am satisfied of that ; PREROGATIVE COURT OP CANTERBURY. 91 the answer is, " I believe she denies that," Why that is exactly fencing with the; question : " I believe she denies that." Then the question is, " Because she denied it, you disbelieve it? You have that confidence in her veracity, that you disbelieve it because she denies it?" "Yes; just so." So that though he believed that he had seen it with his own eyes, yet now he disbelieves it merely ,because she says it is not so. " You think that you must have been mistaken, and that she was right?" " Yes." " To whom was the denial made ?" " I do not know." He does not know to whom the denial was made ; he had never seen Mrs. Dyce Sombre himself, excepting on two occa^ sions, after the first removal froiifi the Clarendon Hotel. He had seen her once when he was in Hanover Lodge, in the Regent's Park, and then he shrank from her as something which he abhorred and abominated. Then he sees her at Dr. Martin's, in the year 1848, on the 10th of November, and the very same thing takes place : he shrinks from her as if he could not bear to go near her, or even bear the sight of her. The examination proceeds : " Do you remember the confession having been made to you?" " I remember something of the kind." He remembers the confession being made ; but whe- ther by Lord St. Yincent, or whether by his wife, he does not say. "Would it not be more satisfactory to your mind if the denial were made also in your presence, and not to a second or third party?" " As far as I am concerned, I am quite satisfied ; I would not wish to hear anything." " You would not wish to see her, to hear her denial?" " It would be no use." " Up to this time, you are quite 1856. Jan. 36th. Dyce SOMBBE against TRotrp, SOLAROLI (intervening), and Pbinsbp, and the Hon. East India Company (also inter- vening). 92 CASES DETERMINED IN THE 1856. Jan. 26th. Dyce Sombre aguinst Troup, solaroli (intervening), and Pkinsef, and the Hon. East India Company (also inter- rening). satisfied that Mrs. Dyce Sombre is quite innocent of all those charges ?" " Yes." " And that it was all delusion, your speaking of her before?" " Yes." " And you were mistaken in supposing that she ever did confess?" " The impression on you and Dr. Bright was, that she was innocent, and I have no reason to disbelieve it. I have not seen any of those persons who ought to have been in- formed on the subject for some years now, and therefore I only go by what I hear." Now I can- not say that that is a candid admission and ac- knowledgment that he had been under a delusion, and that he was sorry for that delusion, and that he now saw his error. It appears to me that Sir James Clark and the other gentlemen have given a true account of this examination, that he is fencing with the questions. "Did she or not confess?" " You have told me that those were delusions, and I am satisfied with your opinion." That is what satisfies him. " You would rather take that than your own impression?" " After mature consi- ration, I think so — incompatibility of temper is the only fault." That is exactly according to the ad- vice which had been given to him. He was told that, unless he did so, he never could recover his liberty. Then the question is put to him, " It is an aflPair rather of the heart and feelings. There is Lord St. Vincent — it was a terrible imputation upon him, having had incestuous intercourse with his daughter, that I should think you would be glad to have an opportunity of relieving him from as soon as you can?" What is the answer? " We have dropped all connexion." Not, I am very sorry for it, and I will make any apology for having made PREROGATIVE COURT OP CANTERBURY. 93 such a charge against him; I was insane at the time. " Does it not pain you to have made such an atrocious accusation against your own father-in- law?" "I have no objection to saying that under the circumstances in which I was placed at the time, I am sorry that I accused him of this." Then the question is, " Knowing it to be unfounded?" and his reply is, " Hearing it to be unfounded." That is, you tell me so. I take your opinion, and I am ready to subscribe to it in that way. " I think you must know that it is unfounded. You must be satisfied that it was a perfect delusion. Of course one is anxious, for their sakes, that there should be as unequivocal a recantation as possible of such a charge; there ought to be a solemn dis- avowal?" "I do not know that I can say more than I have said." "Put it down on paper; you can do it when we are gone ; you can say that you have a feeling of regret in having injured the feel- ings of Mrs. Dyce Sombre and Lord St. Vincent?" " I think it better not to mix Mrs. Dyce Sombre's affairs with her father's." " But they are mixed in the accusation?" "lam ready to express my sorrow. Lord St. Vincent can see that I am sorry for what I said at the time. As to my writing anything to Mrs. Dyce Sombre, that had better be left to the lawyers — there is Mr. Frere on her part, and Mr. Shadwell on mine." So that having made all these accusa- tions against his wife of this incest and adultery, he makes no apology for it, but thinks that it had better be left to the lawyers — Mr. Shadwell on the one side, and Mr. Frere on the other. This is the tenor of the examination which takes place on that occasion. It goes further, but no importance 1856. Jan. 26ih. Dyce SOMBSd against Troup, solakoli (interveDing), and Pbinsbp, and the Hon. East India Company (also inter- vening). 94 CASES DETERMINED IN THE 1856. Jan. 36th. Dycb Sombre against Troup, solakoli (intervening), and PSISSEP, and the Hon. East India Company (also inter- vening). seems to me to arise upon the rest of the examina- tion. There is a q;Uestion about Lord Ward, and about his mistaking another person for Lord Ward. They ask him as to that, and he says that he had no doubt that it was the same Lord Ward. " There was no hesitation on my part that it was the same man." " You had no doubt that it was the same person that was introduced to you as Lord Ward at Lord Shrewsbury's?" " No." He met a man, who was not Lord Ward, at Rome, and he mistook him for him, and he engaged him for a certain sum of money to attend to his aflFairs, and to see that a statue, which was being prepared by Tadolini at Rome, was properly carried into effect. Then there is a question about Madame Solaroli, and Mr. Dyce Sombre says : " There was always some kind of mysteries and hints thrown out about it, that she was not really the child of my father's married wife, and Lord Metcalfe put it all at an end. He said to me when he was going away to America, ' The last proof I can give you of my regard for you, is to tell you what I know about her.' " It appears as if Lord Metcalfe told him that she was not his lawful sister. This is the examination which takes place in November, 1848, after the preparation made for Mr. Dyce Sombre, by Lord C. and his lady, and Mr. Mahon; and I think it is not to be wondered at that he did not quite satisfy those physicians that those delusions had entirely passed from his mind. Upon this examination, too, it is to be observed that the advisers of Mr. Dyce Sombre did not think it necessary or proper to bring on his petition — it came before the Court at PREROGATIVE COURT OF CANTERBURY. 95 a later period — in the spring, I think, of the next 1856. year. But in December, 1848, an examination of jm. zoth. a different kind takes place, an examination by £7cb Dr. Paris and several other very eminent phy- sombre •' . against sicians, who have given their opinion as to the per- tbodp, o • PIT 11 • 1 SOLABOLI lect sanity oi the deceased at that time; and un- (intervening), doubtedly, coming as it does from persons of their pRfNSBP, eminence, it is entitled to the greatest respect and jj"^^ g^/g^ to the greatest weight. It was in 1848 that Dr. coi^pAsr Paris was applied to, and the application was made (also inter- by Mr. Mahon^-^he was the grand conductor of these matters. He had entered into an engage- ment by which he was to receive a sura of no less than £10,000, if he succeeded in obtaining a super- sedeas, and in obtaining the full possession of his property for Mr. Dyce Sombre, the deceased, by the 31st day of December, 1845. He did not succeed in this, as he fully expected to do ; and notwith- standing this agreement, Mr. Mahon made an ap- plication to the deceased for payment, on account of the work and labour which had been done for him, though, according to the terms and tenor of the agreement, he was to have no reward whatever, unless he succeeded in his attempt. Mr. Dyce Sombre refused at first to make this pajnnent, and the matter was agreed to be referred to arbitration. Mr. Prinsep was one of the referees, and Major Kichardson was the other ; and they decided that, though he had not been successful, yet it would be but fair and proper that he should be paid for the money which he had expended out of pocket, and also that he should have some remuneration for hb work and labour. They accordingly awarded to him the sum which he had paid out of his 96 CASES DETERMINED IN THE 1856. Jan. 26th. Dyce Sombre against Trodp, solaroli (intervening), and Pkinsep, and the Hon. East India COMPANT (also inter- vening). pocket, and they made him an allowance at the rate of about £400 a year for the time during which he had been employed, that being the rate which a Mr. Warwick, who had been employed to attend upon the deceased in the first instance, under the authority of the Court of Chancery, had been allowed. The consequence was, that they awarded him the sum of £2,170 7s. 6d. But very shortly afterwards that agreement is renewed, and Mr. Mahon is to conduct the business again, and he is to receive the £10,000, less the £2170 7s, 6d., in case he is afterwards successful. And then this is the effort which he makes to get the opinion of these eminent men. Part of his business was to find medical men of eminence who would speak to the sanity of the testator. Dr. Paris says: "In December, 1848, I was applied to by a Mr, Mahon, of whom I had no previous knowledge, to join with other physicians in examining into the state of the deceased's mind." And he goes on to say : " I suggested the addition of Dr. Mayo, who was called in accordingly. 1 had had put into my hands the opinion of Drs. Bright, Southey, Martin, and Sir James Clark." It appears that this was the note of the examination which I have referred to : "I saw the deceased once or twice alone, and five times in consultation with the other physicians at Mivart's Hotel. My visits were of three or four hours' duration. I had had put into my hands the opinion of Drs. Bright, Southey, Martin, and Sir James Clark. My first object was to satisfy myself as to the deceased's general de- portment and condition of mind. To me that was quite satisfactory. It had none of the character of PREEOGATIVE COURT OF CANTERBURY. 97 unnatural excitement or hallucination ; his manner was tranquil, courteous, and gentlemanlike." It appears that such was his general character, and his general mode of conducting himself. Sir James Clark speaks of that; and also at Paris he seems to have conducted himself in the same tranquil and courteous manner. " The next object was to con- sider what had been communicated in the report of the physicians I have named, and the specific alleged delusions. The first was that of having seen and negotiated with Lord Ward at Rome for for- warding the monument to the memory of the Begum to India, when it was clearly established that Lord Ward was not in Rome at the time. Upon inquiry, we came to the conclusion thatthedeceased had either mistaken some other person for Lord Ward, or that a hoax had been played upon him." It is possible that it might have been so, though the deceased could not divest himself of the notion that it was the same person whom he had met as Lord Ward at Lord Shrewsbury's. He was acquainted with him in this country; he meets with him at Rome; he thinks that he is the same person ; and he employs him, believing him to be Lord Ward. Then Dr. Paris goes on to say : " What at first sight appeared extraordinary, as to the idea of a person of Lord Ward's high station accepting such or any sum, is explicable on the consideration that the deceased was a foreigner. But he was mistaken as to the man ; and when Lord Ward was shown to him in England, he at once admitted and never afterwards hesitated to acknowledge his mistake. His notion of the illegitimacy of Madame Solaroli had a foundation in- fact. It may have been . a mistake, but it was VOL. I. H 1856. Jan. S6th. Dycb SOMBRB agninst Troup, solaboli (intervening), and Peinsep, and the Hon. East India Company (also inter- vening). 98 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce SOMBKE against Thottp, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). not a creation of his own mind." Now we shall hear the reason : " Major Bere, of his Majesty's Hussars, affirmed that her illegitimacy was an admitted and known fact." The other witnesses say that there was a letter of Major Bere produced to show that it was an admitted and acknowledged fact. But what turns out to be the case when the genuine letter of Major Bere is looked at? Why, that Major Bere says that he cannot speak to that fact; his words are — " which I cannot speak to." This makes all the difference in the case. It shows how those learned physicians were deceived upon that point. There was this question as to insanity. I am not saying now whether it was an insane delusion, or whether it was not ; but as to this delusion of the Baroness Solaroli being illegitimate, Dr. Paris and these gentlemen seem to consider that to be quite cleared up, and that it was no fiction and no delusion in the mind of the deceased, because it was asserted by Major Bere that it was an admitted and known fact, whereas Major Bere says no such thing. Major Bere, on being asked to speak to it, says that he cannot do so — " which I cannot do." " It has been regarded," Dr. Paris deposes, " as strangely incon- sistent that, under such a belief, he should have permitted her to be called his lawful sister in the instrument settling on her £20,000." Now un- doubtedly he made a very large settlement upon this lady, the Baroness Solaroli, after the Begum's death. They were always brought up together. Mrs. Troup is the admitted lawful sister of the deceased; and the Baroness Solaroli was brought up in the same manner in which Mrs. Troup was. She was always admitted by the deceased himself to be CASES DETERMINED IN THE 99 his lawful sister in India, because it was not till a late period— according to his own statement, and under his own hand — it was not till about the year 1846, that he took into his head this notion of the illegitimacy of the Baroness Solaroli. That is the time from which he dates it; and the only evidence that there is even as to any report of the Baroness Solaroli, while in India, being illegitimate, is to be found, I think, in the evidence of Mr. Craigie, who says that he heard it mentioned in common conver- sation there; but there is no other evidence whatever. Her Highness the Begum always treated her as the lawful sister; so did Captain and Mrs. Troup; and the Begum's expression is spoken to by Dr. Drever, when speaking of these two girls and of Mr. Dyce Sombre : " They are all out of one womb.'' Now Mr. Dyce Sombre does not at all doubt that the Baroness Solaroli was the child of his father, but he says that it was by a different mother. That is a strong expression of her Highness the Begum, that they all came out of the same womb. She treated the Baroness Solaroli precisely in the same manner as she treated Mrs. Troup, the other daughter ; and when the marriage took place be- tween the parties, she treated her in the same way ; and though there was a difficulty with regard to the baptismal certificate of Madame Solaroli, that matter was cleared up to the satisfaction of the parties at the time. There is no doubt that she was married as the lawful daughter, as Mrs. Troup The Begum gave the Baroness Solaroli and 1856. was. Mrs. Troup rather unequal suras, I believe, but she gave each of them a pretty large sum upon their marriage; and after the death of her Highness the h2 Jan. 26th. Dyob SOMBUB against Troup, Solaroli (intervening), Vid Prinsep, and the Hon. East . India Company (also inter- vening). 100 CASES DETERMINED IN THE 1856. Jan. 26th. Dycb SOMBKE against Tboup, solaroli (intervening), and Prinsbp, and the Hon. East India Company (also inter- vening). Begum, Mr. Dyce Sombre gives them still larger sums, so as to make them equal; for I think that the share which he gives to the Baroness Solaroli is larger than that which is given to Mrs. Troup. However, it was to put them upon an equality in that respect; and in the deed by which he conveys the property to her, she is described as his lawful sister throughout, and in that way she is treated and so considered by the deceased himself down to the year 1846. Then it is affected to be believed by him that she was illegitimate; and his assertions are most extraordinary in this respect. He says that this illegitimacy was communicated to him as a last act of favour by Sir Charles Metcalfe, before he left for Canada, and that is where he gets his information ; but it does not appear that Sir Charles Metcalfe knew anything about it. According to the account of Mr. Prinsep himself, when he is in- terrogated upon it, he says what he heard from Sir Charles Metcalfe was, that the children he saw running about when he called on the Begum were presented to him as children of Colonel Dyce and the Chotee Begum ; that the deceased was one of the children whom he saw running about when he called on the Begum, and so probably was Mrs. Troup. He could not say whether Madame Solaroli was or not : Mr. Prinsep presumes, because she was the younger. And this is interpreted into Mr. Dyce Sombre being right, and that Sir Charles Met- calfe confirmed that opinion. But how does he ^ct ? He does not give a certificate or anything in his own hand-writing to show that such was his belief, or that he had any notion of that kind. But what does Mr. Dyce Sombre say? Why that Sir Charles PREROGATIVE COURT OF CANTERBURY. 101 Metcalfe, though he would not entrust him with a paper of that sort, sent it to my Lord John Rus- sell ; and that my Lord John Russell was in pos- session of this document, which would prove this part of the case ; and he prints a letter in his pub- lication, in the year 1849, about the time of his making his will. This letter is an application to Lord John Russell to give up this document, and a sort of hint that he shall have £1000 if he will do so, and this is in the handwriting of Mr. Dyce Sombre himself; there it is, "£1000" in the corner; and he makes this application for the paper which had been entrusted to Lord John Russell before Sir Charles Metcalfe sailed, in the imagination and according to the delusion of Mr. Dyce Sombre himself. But to return to this examination. Dr. Paris says. to the third interrogatory : " No one was present during the examination who was not professionally concerned in it." It turns out from the evidence of the other physicians, that when any difficulty arose, or anything required explanation, Mr. Mahon or Mr. Prinsep was called in. " No one was pre- sent during the examination who was not profes- sionally concerned in it. I remember seeing a letter or letters upon the subject of the legitimacy of Madame Solaroli; that of Major Bere is the only one that I now distinctly remember. I think that in the course of the inquiry the statement in that letter was confirmed to us verbally by Mr. Prinsep." The statement was, that it was an admitted and well-known fact. Now I think Mr. Prinsep could hardly have done so; there must have been some mistake about that. He certainly, in his letter to 1856. Jan. 'i6th. Dyce SOIKBRB against TBOtJP, Solaroli (mtervening), and Pkinsep, and the Hon. East India Company (also inter- Tening). 102 CASES DETERMINED IN THE 1856. Jan. 26th. Dycb Sombre against Trottp, solaroli (intervening), and Pkinsep, and the Hon. East India Company (also inter- vening). Mr. Dyce Sombre, says : " You are right in saying that that was Lord Metcalfe's impression." Here is this letter that is produced of Major Bere, where, as I stated before, it is quite the contrary. Bere says that he cannot bear witness to it. Dr. Paris says : " I think that in the course of the inquiry the statement in that letter was confirmed to us verbally by Mr. Prinsep. I think it probable that I did see the letter now shown to me at page 486 of the volume,* or rather the exhibit No. 1, but I have no recollection of it." He does not know whether he saw the letter or not. Now that letter, in this book which was shown to him, at page 486, No. 1, is not the letter of Major Bere. I presume that what did take place before these learned phy- sicians was that they said : " There is a letter of Major Bere, in which he says that it is an admitted and known fact." Whether it was the genuine letter, or whether it was this mutilated letter, so mutilated by Mr. Dyce Sombre himself, does not appear with sufficient accuracy, though I am in- clined to think, from a consideration of the evidence, that it was really the genuine letter which was upon the table at the time. Some of the medical gentle- men who have been examined say that there were certain letters and papers put upon the table, but beyond that they cannot speak to the handwriting. Dr. Paris says, in another part of his evidence : " Lord C, in a letter to Mr* Mahon, distinctly states that the deceased was quite correct in saying that at Brighton, and he might also state * This volume was "The Refutation" printed in Paris by Mr. Dyce Sombre, which was brought in aa evidence, and is frequently referred to in the case. PEEROGATIVE COUET OF CANTBEBUEY. 103 upon other occasions, he, Lord C, strongly re- commended him to be very circumspect in his conduct." I have read those letters, and I think they are well described. "With respect to his suspicion of the hostility of the East India Com- pany, on the ground of his presumed pecuniary claims, I am satisfied from documents that such suspicions might be very naturally entertained in a sound mind. I have reason to believe it anything but a delusion. The indecency and grossly inde- licate language with which the deceased is charged in his quarrel with General Ventura is not uncon- formable with Eastern manners. An undue weight has been given to a very gross Hiudostanee phrase, used by General Ventura as expressive of his con- tempt; and by giving to it a literal translation, its true meaning has been unwittingly distorted." Well, but he must have taken the account here given by this gentleman, Mr. Dyce Sombre, upon the occasion. He had no opportunity of knowing what the evidence of General Ventura was upon the occasion. Is it a mere gross Hindostanee ex- pression, or anything of that sort, that takes place ? Such expressions were used, but, according to Ge- neral Ventura, they came from Mr. Dyce Sombre, and not from him. But it does not rest, as Dr. Paris seems to suppose it does, upon a mere con- versation between these parties, or upon the gross expressions which may have been used by either the one or the other of them ; but it is an act of in- decency which this poor gentleman commits at Brussels upon this occasion. There had been a previous rencontre at Baden-Baden, and afterwards at the railway station at Malines, and then some 1856. Jan. 2ath. Dtob Sombre agaimt Troup, solaroli (intervening), and Pbinsep, and the Hon. East India Company- (also inter- vening); 104 CASES DETERMINED IN THE 1856. Jan. 26tli. Dyce Sombre against Tkoup, solaboli (interT^ing), and Phinsep, and the Hon. East India COMPAMT (also inter- vening). conversation takes place again at Brussels; it is in front of the hotel, where General Ventura and his wife and another lady are in a carriage; and in the presence of the landlady of the hotel Mr. Dyce Sombre comes up, he spits upon the carriage, and then he opens his dress and exposes his person to these ladies, and to all who are present. Therefore it does not resolve itself into a Hindostanee ex- pression, or anything of the sort — it is the act of an insane man, for so I must consider him ; be- cause undoubtedly Mr. Dyce Sombre, had he been in his senses, having been brought up in a clergy- man's family, having lived with officers, and having been some time in this country, must have known that it was not an act which he should have com- mitted in Europe, and I apprehend that it was not an act that would have been committed in India or anywhere else : it does not arise from Asiatic feel- ing merely. An exhibition of this sort is made openly in the face of day, before the landlady, and before other persons who are assembled, and who might have been called to contradict General Ven- tura. Undoubtedly, 1 must give credence to Ge- neral Ventura. I see no reason to discredit him whatever. He is a man whose character is entirely unimpeached ; he is a man of high station ; 'and he speaks to a fact which takes place in his presence. He acts upon it; he applies to the police; and the consequence is, that the police interfere. Then, again. Dr. Paris, not knowing the whole facts of the case, refers to the statements as to the conduct of the deceased in the water-closet. That I do not dwell upon. I omit all the evidence both on the one side and on the other. I pass by that PREROGATIVE COURT OP CANTERBURY. 105 which took place at Paris, where, undoubtedly, he was received in good society, and where, undoubt- edly, he may have conducted himself with great propriety, because that is entirely consistent with a case of monomania. I put, likewise, out of sight the conduct of Mr. Dyce Sombre in the profligate life which he led with prostitutes of the lowest description. I do not think that either the one is to be considered as proof of his having been of sane mind, or the other of his having been under an insane delusion. Then Dr. Paris goes on to speak as to his jealousy : " Born in a harem and accustomed to its habits up to the thirtieth year of his age — a period of life at which the opinions and prejudices of early years are too deeply rooted to be easily altered or corrected by subsequent changes of residence or condition — jealousy of women is an overwhelming passion in the Asiatic mind, and evidently existed to an extreme degree in that of the deceased, and wUl go far to explain, if not to pal- liate in some degree, various acts of violence. And although there was nothing in the conduct of the deceased's wife to excite a feeling of jealousy in a well-educated European, yet it is conceivable that a person circumstanced as the deceased, and to which I have before alluded, might take an unjust offence, and entertain suspicion, without falling within the category of insanity." Undoubtedly, any person, whether an Asiatic or European, may fall into an unfounded jealousy, and may entertain suspicion that his wife is guilty without any suffi- cient foundation, or without any foundation, and yet not be of unsound mind. But how is that to apply to a person who declares that his wife has been guilty 1856. Jan. 26ih. DrcE SOMBRII against Tkoup, SOLA.ROI.1 (intervening), and Pbinsep, and the Hon. East India Company (also inter- vening). 106 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). of incest with her own father before marriage ; that she has lived with Sir F. B. (for which there is no foundation) for three weeks, or for three days, before the time of her marriage ; that she was guilty of adultery with all the waiters in the Clarendon Hotel, and that she was guilty of the same crime with shopmen, and with soldiers, and with everybody, when there is no shadow of pretence for anything of the kind ? That is a very different thing from merely considering this as a case of jealousy without sufficient foundation. It does not at all take it out of the category of insane delusions, whatever the opinion of Dr. Paris may be, because Dr. Paris did not know the extent of the delusion under which the deceased laboured. As to the delusions having passed away, let us see what Lord C.'s own feeling was. " He answered,'' when Lord C. spoke to him, "more by a shake of the head than in words. He never would allow her innocence; he never yielded the belief that she had been unfaithful to him." Why, accord- ing to the evidence of Lord C. himself, who per- suaded him to say that he had given up these delusions, he entertained them to the last moment of his life, and he never gave up the belief of her infidelity down to the latest period. The other physicians depose very much to the same effect as Dr. Paris. Dr. Copland examines the deceased in 1848. He says that he was called to see him at Dover, in September, 1846. " That was at the suggestion to me of a Mr. Mahon, a stranger, whom I viewed in the light of an agent of the deceased; but exactly in what relation he stood to him I did not know, either then or at the more PREROGATIVE COURT OF CANTERBURY. 107 recent date of which I will now depose, December, 1848, when I again saw the deceased, at his request." Then he speaks of having had five private inter- views with him, and of having read the reports of Drs. Bright and Southey, and the notes of the examination in November, 1848. He goes on to say : " My examination of the deceased was most searching, and calculated to test the character, notions, prejudices, temper, and disposition, as well as to determine the existence, of any -insane delu- sion." He says: "The charge of an indecent fracas with General Ventura could no more be considered a sign of insanity, than a quarrel between other per- sons respecting any matter, topic, expression, &c., can be so considered." So that he regards it as a mere common quarrel between two persons ; and that the circumstance is not to be considered as more indicat- ing insanity than such a quarrel would do, omitting all mention of the indecent action of this gentleman. He says : " The most important delusion imputed to the deceased, is his belief in the infidelity of his wife; and this belief, when duly considered with reference to the circumstances in which he had been placed in early life, and in this country, when viewed in connexion with his origin, his education, his society in India, and the society in which he was thrown in this country, amounted in its most exalted form merely to an exaggerated form of jealousy." And a pretty exalted form it was, I think, considering the nature of the charges. He says : " First, the deceased was three-fourths a native Asiatic" (that is rather more than he is proved to have been) " and one-fourth an European hy descent." I suppose Mr. Mahon 1856. Jan. 26tb. Dtoe Sombre against Troup, solaroli (interveniDg), and Prinsep, and the Hon. East India Company (also inter- vening). 108 CASES DETERMINED IN THE 1856. JaD.26tb. Dtcb Sombre against Tkoup, solaroli (intervening), and Pbinsbp, and the HoK. East India Company (also inter- vening). or somebody told him so at that time- The deceased himself always insisted that he was an Englishman; and he said, though born in India, yet, from the blood which was in him, he had a right to be tried in an English Court and by Eng- lishmen, and that he would not submit to the Indian Courts. " He was educated and lived among the higher class of native Indian society until he was 30 or upwards of 30 years of age." That is an incorrect account, again, which is given to this gentleman ; it was not the case that he was educated by these people, and lived with them until he was thirty years of age. Dr. Copland says, as to the excitement of jealousy : " There may, too, have been circumstances arising out of the manners, bearing, and even conduct, of Mrs. Dyce Sombre, previously to and after marriage, which, although not admitting of an unfavourable construc- tion in the society of this country, might yet have occasioned the most exaggerated jealousies in the mind of an Asiatic circumstanced as the deceased was from his birth up to his arrival in this country (soon after which period hQ became acquainted with his wife), jealousies which, however exaggerated and intense, would have nothing in common or to do with insanity, nor to be considered as any indication of unsoundness of mind. Much stress was laid on the fact of its being incestuous, but incest (and of that particular kind) is not so uncommon in India, or, as I regret to know, in this country." But with respect to all the other matters, his charges of the adultery of his wife in the open park, and his pro- posal of being restored to her through the means of the Archbishop of Canterbury selecting a virgin for him, and the other things which he demanded PREROGATIVE COURT OF CANTERBURY. 109 — these, I think, can hardly be accounted for upon the plea of his being an Asiatic. I believe the evidence of the other physicians all goes to the same effect. I do not think that they carry the matter any further ; they are very eminent men. Dr. Paris is the President of the College of Physicians, and Dr. Mayo is a person certainly of very great eminence. They consider that the de- ceased was sane at the time. But then I say that they had not the whole matter before them. They had nothing but the examination which had taken place before the other physicianl| in November, 1848, or, if they had, they had not a full account given them of all which had passed in the year 1843, and of the proposal about the Arclfbishop of Canterbury, and of all those matters. With respect to General Ventura, also, they think that it was only a quarrel between him and the deceased, like any common quarrel in the streets. They are not aware that Mr. Dyce Sombre unbuttoned his breeches and exposed his person in the manner in which he is represented to have done to those ladies, and in public. I cannot, then, consider that this testimony, given by these gentlemen, however eminent they are, and how- ever much to be relied on as speaking the truth, is sufficient to upset the testimony of the witnesses who examined the deceased so shortly previously in the very preceding month of November — persons of equal skill, who were acquainted with the par- ticular nature and the extent of his insanity, who knew what his prevailing opinions and his pre- vailing delusions were, examining him apart from Mr. Mahon and apart from Mr. Prinsep, and knowing all that had before passed. The con- 1856. Jan. 26th. Dycb SOMBBE against Tkoup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). 110 CASES DETERMINED IN THE 1856. Jan. 26th. Dtce SOUBRE agaiwt Trotjp, solakoli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). elusion at which they arrived, I think, must be deemed to be the right conclusion ; and I therefore hold that at this time, in the year 1848, in Decem- ber as well as in November, 1848, the deceased continued to be labouring under insane delu- sions, though he attempted to conceal them, ac- cording to the advice which had been given him by Mr. Mahon, and by my Lord C. and Lady C. He could not bring his mind to say that these delusions had passed away — he fenced with the questions that were put to him. There was not a franjn and free admission that he had been labouring under insane delusions, and that he was willing to do the best he could to make com- pensation for the injuries and for the calumnies which he had thrown upon respectable people during the time that he had been labouring under these delusions. I think it was merely for the purpose of deceiving, and for no other purpose, that he conducted himself cunningly, as he did. So, again, as to the physicians who were attesting witnesses to the will; they are, I think, four in number. Three of them attested the will, and two of those same persons attested the codicil, with the addition of Dr. Sigmond, who was then brought in for the first time. Dr. Olliffe is a physician who seems to have known more of the deceased than most of them, and he is one of the attesting wit- nesses. They made a joint report between them. Dr. Sigmond is an English physician of some emi- nence, resident in Paris; he had seen Mr. Dyce Sombre in England, but had a very slight degree of acquaintance with him, and he was called in to be an attesting witness to this codicil. Dr. McCarthy was the person who introduced him. PREROGATIVE COURT OF CANTERBURY. Ill He went to the lodgings of the deceased, and he says : " Dr. M'Carthy. introduced him to me, or me to him rather, as a previous acquaintance. Mr. Dyce Sombre recollected our former meeting, and spoke of the health of the prince. He then told me that he intended to publish a work on the treatment that he had received from the lawyers and persons calling themselves his friends." Now this is a most important introduction, I think, the introduction of this subject between the parties; because the first thing the deceased tells him is, that he intends in a publication to expose this matter; and that publication actually takes place very shortly after this, for it is in the month of August, 1849, the very same month in which the codicil is executed, that he publishes this refutation, which of itself affords pretty conclusive proof, I think, of the insanity of the deceased at the time when it was published. Dr. Sigmond goes on to say: " He spoke of this with great calmness of mind and apparent knowledge of the subject. He then told me that he had already made a will, to which he now wished to add a codicil. Dr. M'Carthy added: ' And it is proposed that you (I, that is) should witness it.' I said that after the conversation that had passed between them and myself, I should have no objection to sign it, if the deceased declared that he had duly considered the nature of the codicil, and that it was his own free will, uninfluenced by others. He said that as those who might have expected to benefit by his will had not behaved well to him, he had made such disposition of his property as he thought best. Some further conversation followed, in which the deceased referred to the instrument itself, as it lay 1856. Jan. 26tb. Dtoe SOUBRE against Troup, solaroli (interTening), and Prinsep, and the Hon. East India Company (also inter- 112 CASES DETERMINED IN THE 1856. Jan. 36th. Dtce SOMBRB against Trodp, SOLAROM (intervening), and Prinsbp, and tlie Hon. East India Company (also inter- vening). before him : he had brought it into the room with him, and was then sitting with it before him on the table. Dr. M'Carthy remarked that it had been made or prepared with great care, and from the deceased's own instructions. Mr. Dyce Sombre made some observation upon the seal, of which the wax impression was, as far as I recollect, already affixed. I was in earnest conversation with him, and possibly it might have been done then in my presence, but I do not remember it, or the lighting of a candle. It was then about the middle of the day; the appointment had been made for twelve o'clock. The topics of conver- sation with me and the deceased were chiefly the book" (that is the refutation) " and the codicil, together with his reason for making the disposition contained in the codicil and the will." Upon the subject of the book, he says : " I have seen the book inquired of and shown to me. I have read parts of it. I forget when exactly it was, but some time in the year before last (1850). I received from the deceased a message that a copy was left for me at Galignani's. I had heard him say, when he signed the codicil, that he was writing a life of himself, which I suppose might have reference to this volume. I gave him no advice as to not publishing it. I merely said that I thought it would be interesting for every one to know what he had to say upon his own case. I told him that whatever he did should be done with great temper and forbearance, for there were plenty of people ready to find fault. I have really no means of judging or giving any but a conjec- tural opinion on the subject of his delusions, real Prerogative court op Canterbury. 113 or alleged, having pufposely avoided all inquiry into them. I have not read enough of the book." So that this gentleman wiU not undertake to depose either one way or the other. "I have really no means of judging or giving any but a conjectural opinion" as to the state of the de- ceased's mind. He says, that his opinion from what he saw on that particular occasion was, that at that time he was of sound mind ; but as to his being sane or insane at other particular times, he says that he cannot give any but a conjectural opinion, and that he can say nothing whatever about it. • Dr. Olliffe is another person who subscribed this will. They all say that they believe the deceased to have been of sound mind, but Dr. Olliffe is a person who states that he was labouring under a delusion as to poison. He had attended him before when he was labouring under delusions, and he thought there was poison in the brandy, and he was not satisfied in that respect. Then he says : " What influenced me, I must confess — and as I believe the others also — 'Was, that the act of the Lord Chancellor, in conceding to him the control of all that was available as income, was a virtual admission of his capability to make a will." Now that is what he goes upon, and he says he believes that the others went upon it also ; that the Lord Chancellor, who at first allowed him only £4000 a-year, was induced afterwards, considering that his property had been managed well — that is, that the income had been well expended — ^to give him the whole ot his income, but refused to give him the power over the fund. Dr. Olliffe says VOL. I. I 1856. Jan. 'i6th. DVOB Sombre against Tboup, solaroli (iatervening), and Prinsep, and the Hon. East India Company (also inter- vening). 114 CASES DETERMINED IN THE 1856. Jan. 26th. Dyce Sombre against Troup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). that is what influenced him, and he believes that it influenced the other physicians; that as the Chan- cellor thought he was sane enough to have the management and expenditure of his own income, he ought to be entrusted with the power of making a will — that he was sane enough for that purpose. But that would be contrary to all the principles which are applicable to cases of this kind. A person may have the power of managing his pro- perty to a certain extent exceedingly well, and of spending his income, a-nd yet be labouring under in- sane delusions. And if there is any insane delusion whatever operating on the mind of the party, and he still entertains any opinion founded on delusion, he is, according to the law and practice of this court, and aU the decided cases, incapable of making a wUl. Therefore Dr. Olliffe, founding hia opinion chiefly upon this circumstance of the de- ceased being intrusted with his income, and be- lieving that the others do so too, detracts very much from the weight which would otherwise be attributable to the opinions of these learned per- sons. He goes on to say, not only that that is what operated upon his mind, but he adds this: " Had aU then come to my knowledge of which I have since been informed, I might have made a more searching examination; but I was satisfied with the inquiries I made in reference to what I then knew, which included the reports of the phy- sicians in England on either side, and the judg- ment of the Lord Chancellor in the spring of that year." So that what he had before him — namely, the examinations of the physicians — that is to say, the examinations of the physicians on the one side PREROGATIVE COURT OF CANTERBtTRY. 115 in November, 1848, and on the other side in De- cember, 1848, and the decision of the Chancellor as to the management by Mr. Dyce Sombre of his property, and the circumstance of his being en- trusted with the power over his own income, induced him to attest the execution of this wiU. I think one of the other physicians, instead of speaking of the expenditure of the income, thinks that the Lord Chancellor had given Mr. Dyce Sombre the entire property, and the entire control over it. However, undoubtedly the execution of this will and of the codicil in the presence of those four physicians, is a very important circumstance in this matter. But supposing these gentlemen thought, as no doubt they did think, that Mr. Dyce Sombre was in a sane state at the time of the execution of this will, in June, 1849, and again in the month of August, 1849, when he made this codicil, what are we to say to the publication of the book, " The Kefutation," which took place very shortly afterwards, which was in a state of preparation at the very time at which this will and codicil were executed? This "Refutation" was in progress at the time, and the deceased was assisted in the compilation and manufacture of it by a Mr. Mon- tucci. According to many statements in that " Re- futation," the deceased could hardly have been of sound mind when he issued it. But take it only as to the point respecting the Baroness Solaroli, to which I have before adverted, which was one of his recent insane delusions, supposing it to be an insane delusion. He had always considered her legitimate till the year 1846, and there was every I 2 1856. Jan. 26th. DyCE SOMERB against Tkoup, Solaroli (intervening), and Prinsbp, and the Hon. East India Company (also inter- vening). 116 CASES DETEEMINED IN THE 1856. Jan. 26th. Dyce SOMBBB against Tkoup, solaroli (intervening), and Prinsbp, and the Hon. East Ihdia Company (also inter- ▼ening). reason to believe that she was so; but, forsooth, all at once the deceased takes it into his head that she is illegitimate, and in the book it is stated (though the fact was quite the contrary) that she had always been reputed to be illegitimate ; but he says that all at once she is made to come out as a lawful sister, whereas she had always been reputed, until that time, as illegitimate. But when he comes to give an account of this illegitimacy, it is founded upon that which I have before mentioned — namely, the communication from Lord Metcalfe, before he left England, as a last mark of his favour to the deceased; and then there is this letter, which is left in the custody of Lord John Russell ; and we have this poor insane person writing to Lord John Russell, and intimating that he may receive £1000, if he wiU produce the document. Lord John Russell can do nothing of the kind; and that matter drops to the ground. Again, in this "Refutation" there is a republica- tion and repetition about the poisoning, and a number of other things, and about his meeting with General Ventura atKissengen and Brussels, in 1845 ; of Mr. Dyce Sombre's suspicions and quarrels with him, all of which, according to the evidence of his own valet, Roulin, had no foundation whatever in fact, because up to the latest moment (I am going back to the Clarendon Hotel now), after he had taken his wife down to her father's. Lord St. Vin- cent's, at Meaford, he returned to the Clarendon Hotel, and he desired to be called in the morning, in order that he might see his friend. General Ventura, off, who was going to India; and yet when General Ventura is gone, he takes it into his PREROGATIVE COURT OF CANTERBURY. 117 head that he has been committing adultery with his wife, he despatches a challenge after him. There is a second challenge ; he assaults him at Baden-Baden; and finally there is the scene at Brussels to which I have already alluded. Again, the deceased says that this "Eefutation" is to be forwarded to everybody, and he has 1000 copies of it left in the lobbies of the House of Lords and the House of Commons. He writes to her Majesty the Queen upon the subject of his dis- putes with the East India Company. Of course he has a letter in reply, by command of her Majesty. But the whole train of these matters is repeated over again in this book, which is called " The Refutation," which is published immediately after the execution of the will and the codicil. Therefore, vmder these circumstances, I can come to no other conclusion than that the deceased did, in the year 1843, labour under the various insane delusions which have been adverted to ; and that those delusions, or at least many of them, had not passed away, but that he continued to entertain them at the time when he executed this wiU and codicil; and at a later period, when the book called the " Refutation" was issued for distribution by him. I make no mention of the other book, namely, the " Memoir," which he wrote against Baron Solaroli in three different languages, English, French, and ItaHan, and his going before him to every town, and distributing it at the different hotels, to preju- dice Baron Solaroli. That appears to me an act of insanity in itself, looking at the charges contained in that " Memoir," because Baron Solaroli seems to have been a person of very high character. He 18«6. Jan. 26th. Dyce SOMBBE against Troup, SOLAROIil (intervening), and Pkinsep, and the Hon. East India Company (also inter- vening). 118 CASES DETERMINED IN THE 1856. Jan. 26th. Dice Sombre Tkoup, solaroli (intervening), and Prinsep, and the Hon. East India Company (also inter- vening). bore a high' commission in the army; he is now a member of the House of Representatives, or the Senate, in his own country, and he appears to stand very high in the estimation of aU persons there. And yet these papers were distributed by this poor man, giving an account of the Baron Solaroli as if he was a person of the lowest extraction, and guilty of the gravest crimes ; stating that he had been a cook in the service of the Marquis of Hertford, and that he had been guilty of murdering his own father, specifying the time and place, and making various other charges against him. Under all these circumstances, therefore, I can come to no other conclusion than that the deceased was labouring under insanity at the time in question, though he attempted to conceal it, according to the advice which he had received ; that the delusion was stiU present in his mind; and consequently, according to the principles which prevail in these courts, and according to all the cases which were cited at the Bar, and most of which are referred to in the case which I have mentioned, namely, the case of Waring v. Waring, according to the principles there laid down, I must necessarily come to the conclusion, that this gentleman was incapable of making his wiU. I therefore must pronounce against the will and codicil. With respect to the costs in this case, I must con- fess that I have found considerable difficulty; but I think that I should not discharge my duty with the firmness with which I ought, unless I were to condemn the parties in the costs of this suit. When I see how this poor man was prepared for the pur- PREROGATIVE COURT OF CANTERBURY. 119 pose of undergoing his examinations-^how he was urged by various persons to conceal his thoughts — not to give up his delusions, but to conceal them, and to pretend that he had none remaining, in order that he might pass his examination, might get his supersedeas, and might recover the whole of his property — when I see what has taken place with regard to Mr. Mahon, and with respect to Mr. Prinsep, though, undoubtedly, the letters which were written by him were not precisely of the same tenor, and I think not so blameable as those which were written by my Lord Corabermere and Lady Combermere, urging the concealment of the delu- sion — I say, that I think, under aU the circum- stances of the case, I am bound to pronounce against the will with costs. I certainly should not have thought of condemning the East India Com- pany in the expenses which have been occasioned by them with respect to this will. It might, per- haps, have been their duty to have an investi- gation to see whether this wiU was well founded, whether it was the act of a capable testator or not, since the contents of it tended so much to the benefit of the persons living within their juris- diction and under their government. But they have thought proper to make altogether a common case with the executor who has propounded the will, and therefore I cannot well distinguish the one from the other. They have come to a mutual agreement that the expenses are to be borne, if I understand it rightly, by the East India Company ; they are the parties who are to bear them ; and this investigation would, probably, not have gone on, or not have gone to this length, unless it had 1856. Jan. 36th. Dyce Sombre against TaoDP, SOLAROLI (intervening), and Prihsep, and the Hon. East India COMPAHY (also inter vening). 120 CASES DETERMINED IN THE 1856. Jan. 36th. Dyce Sombre against Tboup, solaroli (iDtervening), and Prinsep, and the Hon. East India Company (also inter'' vening). been for that understanding between the parties. I think, therefore, that I am bound to condemn the executor, and also the East India Company, in the costs of these proceedings. And I accordingly condemn those parties in costs. This case was appealed, and on the 1st of July the Judicial Committee affirmed the sentence, pro- nouncing against the will and codicil; but varied the decree as to costs, giving no costs against the appellants (the Executor and East India Company), but allowing them one set of costs only, including the costs of the appe£|>l. ARCHES COURT OF CANTERBURY. 121 ARCHES COURT OF CANTERBURY. Hunt v. Hunt. 1856. Husband and wife — Adultery — Nonconsummation of the marriage — Medical evidence. Feb. 13th. This was a cause of divorce by reason of adultery a. and b. were promoted by W. G. Hunt against his wife C. M. ]845rand lived Hunt. The libel pleaded the marriage in January, islsl'lhi'a Lit 1845, consummation and cohabitation at diflferent agS^sffOT places till February, 1853 ; the commencement of aduitei7,B. . . , • • 1 pleaded her a criminal intercourse in the summer of 1852 with virginity, and M. B. P. ; that in July, 1852, the wife and P. re- A.°a(to?tted' mained for one or two hours locked up alone in a consummated' private sitting-room, with the blinds down, at the a'^d"thrmedi- Foley Arms at Malvern: in July and August, cai evidence .* ' J a 1 proved the vir- 1852, frequent visits by the wife alone to the lodg- ginity.— Held, ings of P. in Worcester, on all or most of which guilty of adui- occasions the blinds of the room in which the parties entitled to^a^ were were pulled down; in September, 1852, visits ^^^"onthe by P. two or three times a week to the wife whilst e™"""! °*' ^'^ ' adultery.which staying alone for three weeks at the Belle Vue Hotel, was proved. Malvern, and his remaining there with her till 10 or 11 o'clock at night ; that in December, 1852, the wife, accompanied by P., went to Oldbury, and remained locked up together in a sitting-room at the Talbot Inn with the blinds down ; and the commission of adultery on each of such occasions ; a verdict, and 122 CASES DETERMINED IN THE ^^^^' £50 damages. The libel also pleaded a letter from Feb. 13th. the wife to the husband, written at the time of sepa- HuNT ration, in which she admitted her attachment for P. ijj;,j_ A responsive allegation was brought in on behalf of the wife, the 1st article of which pleaded as follows : — " Whereas it is pleaded in the 3d article of the libel given in and admitted in this cause on the part and behalf of W. G. H. that the said W. G. H. and C. M. H. his wife consummated their said marriage, and from and after the same lived and cohabited together as husband and wife at the several places and times therein mentioned; and whereas in the 4th, 6th, 7th, 8th, and 9th articles of the said libel it is pleaded that the said C. M. H. committed adultery at diflferent times and places with a person therein set forth. Now, the same is therein falsely and untruly pleaded, for the party proponent expressly alleges and propounds that although the said W. G. H. and C. M. H. did from and after the said marriage live and cohabit together as husband and wife, yet that the said W. G. H. and C. M. H. never did in fact consummate their said marriage, and that the said C. M. H. now is a virgin, and hath never been carnally known by man, as will appear on inspection of her person by physicians, surgeons, and other competent persons," &c. The 2d article pleaded admissions by the husband to several persons that the marriage had never in fact been consummated. Several fallowing articles pleaded the knowledge by the husband of the intimacy subsisting between the wife and P. ; the commission of adultery by the husband ; and " that no evidence was taken in the action brought by the said W. G. H. against the said M. B. P. ; V, Hunt. AECHBS COURT OF CANTERBURY. 123 that the verdict was for £50 nominal damages ; that 1856. the said M. B. P. was at the time in Mexico, and Feb. i3ih. had been at the time, as stated by his counsel, when j^^ the said verdict was given, sent abroad by his rela- tives before the said action was brought ; that the said verdict was given by consent of the relations of the said M. B. P., and that he was wholly unaware of the said verdict having been consented to. This allegation was admitted after opposition. The evidence of two medical men proved the first article of the responsive allegation. The facts pleaded as to the wife's intimacy with and the visits of and to P., as well as the circumstances alleged to have occurred at the Foley Arms and the Talbot Inn, were generally established, but there was no proof of any single act of indecent familiarity. The adultery of the husband was established and ad- mitted by his counsel.* Addams and Curteis for the husband. The facts proved against the wife, taken with her admitted attachment to P., establish her adultery. The evidence of virginity cannot be relied on, for many cases show that those signs, upon which the medical witnesses here rely, may exist, and yet sexual intercourse have taken place. To allow such a defence would be not merely dangerous as a precedent, but in the present case would enable the wife to take advantage of her own wrong ; she has denied her person to her husband, and so been the cause of the adultery he has committed. The result * An allegation exceptive to the testimony of one of the witnesses produced to prove the husband's adultery was brought in, and after opposition admitted on behalf of the wife, by whom the witness excepted to was produced. 124 CASES DETERMINED IN THE 1856. of the case should be to pronounce for the divorce Feb. 13th. at the suit of the husband. Hunt V. Hunt. Sir J. D. Harding^ Q.A., and Deane, for the wife. — The adultery of the husband having been admitted, the only question is whether the wife has been guilty. The circumstances are against her, but it is impossible to reconcile the medical evidence with the fact of her guilt. The case is not one of casual intercourse like those referred to in the argu- ment for the husband, but of long continued inti- macy and frequent opportunity. The husband admits he did not consummate the marriage, and the proved state of the wife is inconsistent with any other intercourse. Judgment. Sib John Dodson. The suit was commenced by the husband charging his wife with the commission of adultery, and pray- ing a sentence of separation on that ground. A libel was given in by him, and upon that libel fifteen witnesses were examined. The wife denies her guilt, and she recriminates, and makes a charge of adultery against her husband. Upon her part an allegation was given in containing those aver- ments, and fifteen witnesses were likewise examined upon that allegation. The guilt of the husband, so far as the commission of adultery is concerned, or rather, I should say, the commission of adultery by the husband, is admitted. I cannot, however, make any distinction between the fact of adultery and the guilt of that adultery ; he is proved to have committed adultery, therefore there is an end to Hunt. ARCHES COURT OF CANTERBURY. 125 that part of the case, and it is wholly unnecessary 1856. to enter upon it. The only point the Court has to Feb. latii. consider is, whether the wife has been guilty of j^^^ adultery, or any such conduct as should bar her from the remedy which she now seeks at the hand of the Court, namely, that she may be separated from her husband on the ground of his adultery. The marriage took place on the 3d of January, 1 845, and the parties cohabited together till Feb- ruary, 1853. The consummation of the marriage has been pleaded in this case by the husband in his libel. It is said that was a mere matter of form and a matter of course, and of no importance ; that it was not expected it would be denied ; but it is dis- tinctly admitted by the counsel in the case arguing for the husband that that marriage never was con- summated ; indeed, it is proved by a conversation which the husband had with Mr. Hyde, whose testi- mony has been very much eulogised as a witness of truth. A similar admission is made to the two brothers-in-law — the brother-in-law of the husband as well as the brother-in-law of the wife ; in point of fact, it is agreed by all parties, that though these persons were married in 1845, and were living together for a space of eight years, yet no sexual intercourse took place between them. I am sorry to say that in the answers of the husband there is not that distinct admission I should have expected, because, having pleaded that the marriage was con- summated, he says in these answers that he enter- tains doubts on that subject, whilst it seems he entertained no doubt whatever when he conversed with Mr. Hyde and the other gentlemen whose names I have mentioned, and his counsel now enter- 126 CASES DETERMINED XS THE Hunt. 1856. tain no doubt upon the subject. The adultery of Feb. 13th. the wife is charged to have taken place with Mr. ^^ Portman first of aU at Edgar Street, in the city of Worcester ; it appears that he was visited there by Mrs. Hunt, and frequently visited. It appears also from the testimony of the witnesses that it was not only Mrs. Hunt who visited him there, but she was occasionally attended by her mother or sister, and upon one occasion by her husband. However, it is undoubtedly clear, from the evidence of two of the witnesses living nearly opposite, and also from the testimony of Miss Norris, who was the daughter of the person who kept the house, that Mrs. Hunt not unfrequently came there by herself and re- mained there for a very considerable time. Mrs. Morris, the lady of the house, did not observe any- thing remarkable ; she never found the door locked or anything of the kind ; but the testimony of the two witnesses residing nearly opposite is, that they observed that this lady frequently went there, and on aU occasions of her going there, whether morn- ing or evening, whether the sun was on the windows or not, the blinds were pulled down ; there they con- tinued together a considerable time, and when the lady quitted the blinds were drawn up. Now, cer- tainly these are circumstances aflfbrding very great suspicion of misconduct between the parties. I do not say they are conclusive evidence of adul- tery, or that they would be presumptive evidence of adultery, if standing by themselves ; but there are other charges made, namely, of improper inter- course at the Foley Arms at Malvern, and the Belle Vue Hotel at Malvern, and also "at the Talbot Inn, Oldbury. It appears that Mr. Portman V. Hdht. ARCHES COURT OF CANTERBURY. 127 and this lady drove over to the Foley Arms at 1856. Malvern, and upon the same day Mr. Hunt, the Feb. i3th. husband, drove over a young lady who was staying j^^ on a visit with Mr. and Mrs. Hunt, and they aU went to the Foley Arms. When they all arrived there the visitors' book was presented to Mr. Port- man to inscribe the names, which is usual at that place ; and he thereupon wrote down hia name, and then the name of Mrs. Portman, in that book^ as Mr. and Mrs. Portman, and also the name of this young lady. Whether Mrs. Hunt knew any- thing of this, or Mr. Hunt knew anything of it, does not appear. It is a matter of little import- ance ; it was not pressed by counsel as having a forcible bearing on the question ; it was a mere joke of a young man writing down " Mr. and Mrs. Portman," he having driven Mrs. Hunt there, and no unfavourable inference is to be derived from that. But it does appear that they were on another occasion alone together at that hotel, and upon that second occasion the door was found locked ; that certainly is a strong ground of suspicion. And again : what is still stronger is, what took place at the Talbot Inn at Oldbury, for that is the last time they were detected acting in any clandestine man- ner. Upon this occasion Mr. Portman had driven her over in order to call on a gentleman, who had been his tutor, and who, it so happened, was not at home, and they proceeded to the Talbot. The only room that was unoccupied was one behind the bar, used as a coflfee-room, or for more parties than one. They went into that room ; the lady ordered some refreshment. After that they remained there ; and there being occasion for the niece of the land- 128 CASKS DETERMINED IN THE 1856. lady to go to the room to get her umbrella, the Feb. 13th. door was found to be locked. There is no doubt Hunt they remained in the room with the door locked for ,j^;,j_ a considerable time, for she is not the only person who deposes to that fact, she is confirmed by other witnesses. The room, when they come out, is found to be in a disordered state ; it is found that the blinds are drawn down ; but the learned counsel say that is nothing at all, it is common to draw down the blinds if the windows look, as those windows did, into the street or into a stable yard, and therefore no unfavourable inference is to be derived from that. It appears, likewise, that a pin from a lady's hair was found on the floor, or on a sofa in that room: this is said to be of common occurrence — not to be taken as proof against any particular lady. Again : as to the state of con- fiision in which the sofa is represented to have been found, it is said that it had a loose covering, and that any one sitting upon it would disorder it. The sofa was removed from the window, but it was urged there was nothing in that. Taking each of these circumstances separately, they do not amount to much ; but, taking them all together, when a young married woman goes with a young man to an inn, and the blinds are pulled down, the room is in confu- sion, the door is locked, and they are there for a considerable time, these circumstances offer a case of very strong suspicion. I do not say that they amount to more than presumption. But this is not the whole of the evidence, for there is other evidence in this case, and other most important evidence — that upon which I think I can place the most implicit reliance — the testimony given by ARCHES COURT OF CANTERBURY. 129 Dr. Farr, one of the most eminent physicians ; and 1856. by Dr. Frere, a man likewise of considerable emi- '■'^^^ ^^"' nence, who can have no interest in the case, and """'^ who depose most positively, after an examination hunt. of this lady, that she has never had sexual inter- course with man, that she is a virgin intact. It is said they have defined, and correctly defined, in what complete sexual intercourse consists. They both admit that there may be quasi sexual intercourse, that pregnancy may take place not- withstanding there has not been this complete sexual intercourse, notwithstanding the hymen may not have been perforated, or not have been broken. They give cases within their own knowledge in which these matters have occurred, and they fully confirm and fully admit the cases which are given by Dr. Blundell, in his work on the subject. But they say that in this case not only is the hymen unbroken, but that the condition of all the parts satisfies them that sexual intercourse has never taken place. "With respect to the husband, with whom this lady cohabited for eight years, it is now admitted there never was sexual intercourse with him. The conclusion necessarily is, however im- prudent the wife may have been, however repre- hensible her conduct may be and must be consi- dered, that she has not been guilty of adultery. I do not enter into other parts of the case — into what is called his connivance or encouragement. I think that was pressed against him rather more than is necessary. I am unwilling to enter upon this case, either on the one side or the other, beyond what its necessity requires. I will state that I am of opinion he has been guilty of adultery, and he has admitted VOL. I. K 130 1855 CASES DETERMINED IN THE 185^- it ; I am of opinion that she is not proved to have Feb. i3tii. been guilty of adultery, that there never was sexual H^T intercourse with man ; and upon these grounds I Hunt. prouounce for the prayer of Mrs. Hunt. CONSISTORY COURT OF LONDON. Lowe v. Lowe. Cruelty — Practice — Answers. Nov^th. rp^j, y{\qq\ of the wife in a cause of separation by reason of cruelty, pleaded certain acts of cruelty; and that the husband was only prevented from fur- ther violence by the interposition of A. L., their servant, who was present. The answer denied the cruelty, and went on to allege that the said A. L. was evidently in collusion with the wife, and at hand and ready to witness her lying on the floor on the occasion when she falsely stated she had been knocked down by the respondent ; and that from a given time the wife had adopted a systematic course of provocation, Lowe. CONSISTORY COURT OF LONDON. 13 J evidently with the view to induce the respondent to 1855. act with violence towards her. Nov. lotb. The libel further pleaded, that a summons having £^^ been obtained by the wife against the husband, the husband was convicted of the assault and fined. The answer admitted the conviction, and averred that the charge was supported by the grossest false swearing, and that the magistrates were not unani- mous in giving their judgment. Addams and Spinks, in objection to these an- swers. — The respondent cannot introduce the charges of evident collusion, and of the adoption of a systematic course of provocation ; nor can he allege that the conviction was obtained by perjury, and that the magistrates were not unanimous. Sir J. D. Harding, Q.A., and Jenner, contra. Dr. Lttshington. You have a right to say that the wife and her servant were acting in collusion ; but you should not go on to say that the wife adopted a systematic course of provocation, because if you state in answer anything which you can prove, and do not prove it, the statement in the answer goes for no- thing. You may however answer that you believe the conviction was obtained by false swearing, and that the magistrates were not unanimous. e2 ] 32 CASES DETERMINICD IN THE Davidson v. Davidson. 1856. Adultery — Attachment — Criminal intention — Oppor- May 17th. tuuity — Interrogatories — Credit of witness. Where tliei'e is mmi°a-\m\n?A This was a cause of divorce by reason of adultery- opportunity"'* promoted by the husband against the wife. The Hon'iMha?' li^el pleaded the marriage on the 20th of February, adultery has 1855, and cohaMtation till the 22d of May in the been commit- ' i.niii ted. Statements game year. That the wife had been partly educated rogatory are in Fraucc, and there formed an acquaintance with taken alli-^^ a young Frenchman named E. Lalouette ; that t"ou'"h a'vTit^ since leaving France she kept up a correspondence lieas be in part |^„ letter with and had two portraits of him ; that discredited, yet J i . i i n tt.^ where such notwithstanding the great kindness shown'by her witness is cor~ ' ' roborated by husband to her, she treated him with indifference. or staTementT That in May she induced her husband, much to his tory 'th™wu- inconvenience and against his wishes, to take her tiess is to be £qj. ^ ghort visit to Paris. That previous to leavinar relied on. i i i i home for Paris she destroyed her papers, and packed up and took with her all her clothes, trinkets, books, and drawing-room ornaments. That when the time of their visit to Paris had expired, and the husband was obliged to return to England, she refused to return with him, alleging that she was a Roman Catholic at heart, and would not leave France before she was formally admitted a member of that church. That at daybreak of the 22d of May she accompanied Davidson. CONSISTORY COURT OF LONDON. IS-'i her husband to the station at Paris, and saw him 1856. leave by the train for Boulogne, parting with hitn May nth. with every expression of kindness. That Denman Davidson her maid remained with her, the husband having refused the wife's repeated suggestion that he should take Denman back to England with him. That im- mediately the husband left with the train, Lalouette joined the wife on the platform, and at noon of the same day called on and remained with her for about an hour in her apartment. The remaining material articles pleaded the facts occurring during the night of the 22d and morning of the 23d, which are fully stated in the judgment. The additional articles pleaded a correspondence in April, 1855, with the authorities of the Post Office respecting the missing halves of bank notes sent in a letter addressed to E. Lalouette, and a Mr. D' Alcorn acting under the directions of the wife. The receipt of foreign letters by the wife through D'Alcorn with envelopes initialed E. L., such envelopes having been made at a sta- tioner's in London by the wife's orders, and the sending a writing-desk and her picture as a present to Lalouette in March and April, 1855. No counterplea was given in on the part of the wife ; but an allegation exceptive to the evidence of Denman was admitted on her behalf, pleading that' whereas, in answer to the 13th interrogatory, the Avitness answered "That when Mrs. W., the minis- trant's mother, arrived in Paris on the 29th of May, and I opened the door to her, she did, I think, say, the very first thing, ' Oh ! Denman, tell me, is it as bad as we think? — 'is she guilty?' or something to that effect. I did not reply ' Comfort yourself, Madam, she is not guilty.' No; I am sure I did not. I will Davidson. 134 CASES DETERMINED IN THE 1856. venture to swear that I never told the ministrant May i7ih~ that those were my very words." She hath therein Davidson knowingly, &c., for that she did reply in those very words. And that whereas, in answer to the 18th interrogatory, the witness answered, "I have not expressed to Mr. and Mrs. W., the father and mother of the ministrant, my belief that she is Innocent of the charge of adultery. I have never expressed that belief to them. I have only told them, as near as I could, everything as it occurred, the same as near as possible as I have in my evidence, but never expressed to them the belief interrogate." She hath therein knowingly, &c., repeated expressions on several occa- sions of the witness's belief in the innocence of the wife being pleaded in contradiction. This allegation was admitted after opposition. — See post page 167. Addams and Bayford for the husband. Twiss and Spinks, for the wife, contended that there was no evidence of adultery except that given by Denman ; that she was a single witness, and dis- credited. And they oited Bix v. Mix, 3 Hagg. 74 ; Hamerton v. Hamerton, 2 Hagg. 8 ; Simmons v. Simmons, 5 N, C. 347; Evans v. Evans, 1 Rob. 165, Judgment. Dk. Lushington. In the course of the argument addressed to the Court in this case, two or three questions of law were mooted, and before I proceed to the evidence in the case, I think it may be expedient to dispose Davidson V. Davidson. CONSISTORY COURT OF LONDON. l.>5 of them, tliougli indeed, according to my own judg- 1856. ment, the case must be determined by very simple May ntii. considerations ; whether or not criminal intention is proved, and whether or not there was adequate opportunity for the parties to have indulged that criminal intention. Now, I apprehend, that with regard to the proof of adultery, the doctrine has long been settled. It is not necessary to prove, that the adultery with which a party is charged should have occurred at any particular time or place. The Court must be satisfied that a criminal attachment subsisted be- tween the parties, and that opportunities occurred when the intercourse in which it is satisfied the parties intended to indulge, might with ordinary facility have taken place. Ocular proof, as was said by Sir George Hay, in Eix v. Risa^ is very seldom to be procured ; almost every case is a case of presumptive proof, though such proof varies in every possible shape and degree. There was a case, of which I am not aware there is any printed report, in which this question was very greatly discussed. I mean the case of Trotter v. Trotter, which occurred before my time, and which, when I first came to this profession, was frequently mentioned. Now, in the case of Hamerton v. Hamerton^ which has been so much discussed in argument. Sir John Nicholl said, it is true that the law does not require direct evidence of the very fact, committed at a specific time and place — repeating almost the very words of Sir George Hay — but it does require to be satisfied that actual adultery has been committed. And I entirely accede to this doctrine. It is, in other words, that no proof of criminal intention Davidson. 136 CASES DETERMIKEI) IN THE 1856. -will suffice, the parties must be placed in a con- May 17th. ditiou, as to Opportunity, when such criminal attach- DA^soN ment may be indulged. To understand the judgment in Hamerton v. Hamerton, it must be borne in mind that the suit commpnced in the Consistorial Court of Gloucester, and the libel was there admitted, and so framed that Sir John Nicholl said, as to the most important part of it, that it was impossible for the party charged to defend herself. In fact the case of Hamerton v. Hamerton was this — ^very different from what this is represented to be on the face of it — theie was conclusive proof of criminal intention on the part of Mr. Bushe, the alleged adulterer, there was less stringent proof with regard to the feelings of Mrs. Hamerton, and there was no satisfactory proof of opportunity at all. One opportunity was alleged to have takea place at Cheltenham, at the house of Mrs. Matthews. That case wholly failed, because it was admitted on all hands that Mrs. Matthews was a woman of irre- proachable character, that she was in the condition of a mother or guardian to Mrs. Hamerton; and the only interview that took place was in the drawing-room in the middle of the day. With regard to the parties being brought together at any other place, the evidence wholly failed. It had been alleged that Mr. Bushe had taken a house, which he certainly had taken, with a view of carry- ing on criminal intercourse, but there was no proof that Mrs. Hamerton was there. With regard to Paris, the same observations may be made, for the evidence only went to this, that Mrs. Hamerton was seen coming from that house on one occasion. CONSISTOEY COUKT OF LONDON. 137 and three or four hours afterwards Mr. Bushe was 1856. seen coming out, without anything like evidence to jjay i7tii. show that the parties had ever been in the house d^^sqn together. Therefore, I say, I adhere to the doctrine "■ . T /. Davidson. which was promulged in that case. I approve of Sir John Nich oils' judgment when he required further proof. But the circumstances of that case are not only of course different, but, as I shall have occasion to show in the course of further examination, wholly and altogether distinct. Reference was made to the rules which prevail, I lament to say, in this Court as to the effect to be attributed to the evidence of a single witness. I am very clearly of opinion that the circumstances of this case do not admit of the reception of such an argument ; for I apprehend that it has been held, even in these courts, on many occasions, that the evidence of a single witness, as to a particular fact, might be sufficient to establish that fact, if there was adminicular and corroborative testimony; of what kind may be matter of argument. However, to prevent misconception, I will make a few observa- tions on this topic. With respect to the case of Simmons v. Simmons, which was decided by myself, I must observe, that it was one of very great peculiarity, the whole ques- tion being hinged on the supposed commission of adultery at a particular time and place. Lucy Peacock, who cohabited with Mr. Simmons, deposed that the connexion did take place ; but there were no circumstances whatever, either admitted or proved, legally speaking, corroborative of her evi- dence. The existence of a prior intercourse dis- Davidson V. Davidson. 138 CASES DETERMINED IN THE 1856. continued was not evidence of a particular renewal ; May 17th. ^nd morc especially, as interviews were proved to have taken place for a totally different purpose, namely, the maintenance of a child, which had been the fruit of loose intercourse with her antecedent to the marriage. What was wanted in that case was, proof of a continued attachment; and there was not the least evidence to show that the inter- course which had been abandoned was likely to be revived. As the law has not been altered, I must abide by the law as laid down by the Court of Arches. I did so abide in determining myself in that divorce; I acted under the constraint of a superior court, and against my own judgment; I said so at the time ; and I should now act on the law as it stands, if I found circumstances admitted of its applica- bility; and I should do so even though the result might be, as in the case of Evans v. Evans, decided by Sir Herbert Jenner Fust, that a court of common law gave a verdict of £500 and an ecclesiastical Court dismissed the wife ; the consequence of which might be, that the husband might be compelled to take her back, notwithstanding the verdict. When I come to examine the particulars of this case, I shall be able to show what appears to me to be a very essential distinction between this case and that of Simmons v. Simmons. There was another point adverted to, which might, under the circumstances, be one of consider- able difficulty ; I allude to the question, how far inter- rogatories can or ought to be taken as admissions. It has been said, that I must not take facts admitted in the interrogatories without the colour Davidson V. Davidson. CONSISTOKY COURT OF LONDON. 139 put upon them. To tliis I cannot give my assent, 1856. at least to the full extent to which it has been car- May i7th. ried. I conceive that where interrogatories have been put, I must first look to the evidence of the witness to whom the interrogatory has been admi- nistered, and that such answer, in the first instance, is the best evidence. Next, I must enquire, whether the interrogatory was framed for the purpose of trying the credit of a witness, and that only, or as a bond fide admission of a fact, in accordance with the rest of the evidence, and only so admitted for the chance of an experiment, for ■ the purpose of putting a different construction upon it. I cannot adventure upon a general rule; the Court raust judge in each case, as I believe to be the practice in other courts of justice. There is only one other case, to the best of my recollection, in which this point has ever been mooted : that case was decided by myself, and consequently is no authority for me to rely upon ; it was twenty- four or twenty-five years ago ; that was Story v. Story. In that case I had no hesitation in assuming as proved the facts stated in the interrogatories. I have since referred to the interrogatories in that case in the original depositions. I find in pencil the observations which I made at that time on these interrogatories. I need not read them all; but my observations were, such interrogatories as these, by implication, necessarily admit the general facts. Again, on the ninth interrogatory, the question was asked, how a man was dressed when he was found under the bed by a lady, a witness, and who was the single witness in the case. This appeared to be an admission that the man was so found, and to 140 CASES DETERMINED IN THE 1856. assist the main evidence in the case. There were May 17th. many interrogatories of the same kind, but I had no da^I^on hesitation in dealing with these as admissions — from ,, "■ the desperate condition in which the party pleadinff Datidson. '^ . was placed — for there was the very strongest evi- dence of the witness having found him in the middle of the night, and concealed under the bed of the per- son charged with adultery; however, no doubt, under these circumstances, it would seem advisable to run many risks in order to get rid of the evidence. I need not occupy time in going into that case. I now proceed to the facts of this case. It is clear, beyond all doubt, that one of the most im- portant considerations to which I have to direct my attention is, the credit to be given to Ann Denman; but I must consider how far that credit is impeached — how far her statements are shown to be consistent with probability, and with the other admitted facts and circumstances. Now, her credit has been attacked in several ways : First, by the exceptive allegation ; secondly, by showing she is contradicted by one of the witnesses who has deposed to a declaration denied by Den- man; thirdly, by her own letter; and fourthly, by alleged contradictions in her own evidence. Now, I mean to consider these objections briefly in the order stated. The exceptive allegation does not contradict any of the facts pleaded, nor any of the facts given in , evidence — not one. That allegation is confined to a contradiction of certain declarations deposed to by Ann Denman, and is framed for the sole pur- pose of discrediting her testimony — not to show she had deposed erroneously as to any fact or circum- Datidson. COSSISTORY COURT OF LONDON. 141 stance, but in order to show that the Court ought not 1856. to give credit to the statements which she has made. May nth. Now, admitting for a moment the whole evidence Davidson of Mr. and Mrs. W. to be correct, it would still be a question how far it should discredit Ann Den- man, whether she was not to be believed as to the facts deposed to. As a general principle, the doc- trine of falsa in uno falsa in omnibus has not, as I believe, prevailed in any of our courts; that in par- ticular cases the evidence of a witness, proved to have sworn falsely and wilfully also, may be wholly rejected I doubt not, but each case stands on its own particular circumstances. The question I have to consider is, whether this witness is, to use a short phrase, so perjured in some particulars that she is to be wholly discredited as to all other matters. This will depend on several considera- tions, and more especially whether she is confirmed directly or indii-ectly by other evidence in the cause. It appears that Mr. and Mrs. W. did give credit to Ann Denman's statement of facts ; they con- tinued, her in their service; they were anxious that no opposition should be made by their daughter to this suit. I think that the letter of August 28, 1 855, goes further. To that letter I must refer: "Dear " Frederick, I am sorry to trouble you with this, but " we are very anxious to know about what time in " November Katherine's unfortunate case is likely " to come on, and if it is likely to come out in the " public papers at once. I am told these matters " take a long time to settle; if such is the case, and " you think it wont come on till after Christmas, we ^' could then remain here till that time. My reason " for asking is," so and so " is expecting her confine- 142 CASES DETERMINED IN THE 1856. " ment the end of ITovember, and she expects to May 17th. " come here at that time ; but as we wish to be away Davidson " during this dreadful trial, I shall arrange my future datidson. "movements according to your letter. Can you " suggest anything to me that I might in any way " check her opposition to the suit, and by that means "prevent publicity and cruel exposure to both "families?" Now, it is perfectly obvious that when this letter was written, which is August the 28th in that year, Mr. and Mrs. W. were anxious and desirous that no opposition should be made by their daughter to this suit. According to the statement in his evi- dence, which I need not refer to again, he says, " 1 " was willing and desirous all along, very much so, "that the producent should not be an opposing " party, at least not actively so, to the ministrant's " suit against the producent. I was so, because being " satisfied from Denman's repeated statements to us " that she was innocent of any criminality, I looked " forward to a reconciliation between the parties ; " and I thought that her refraining from offering any " active opposition to his suit would best promote " that result. It is only in consequence of its ap- " pearing by Denman's evidence, when it was pub- " lished, that she stated respecting my daughter " what, according to her (Denman's) own pre- " vious statements to us, we have every reason " to believe to be false, that we have been obliged " to come forward in opposition to that evidence. " We could not stand aloof when we had reason to " believe that there was false evidence against " her tending to prove her guilty — when we be- "lieved, and, from the statements of the very CONSISTORY COURT OF LONDON. 143 "party who had given that evidence, had reason 1856. " to believe her innocent." May nth. Now this is a most extraordinary statement, dayii^on whilst Mr. W. believed the evidence of Ann D^y^^soN Deninan, taking it to be such as he has represented it to be, that Mrs. Davidson was entirely innocent of the great offence, so long he withdraws from all opposition to the suit commenced for the purpose of proving she was guilty of adultery, and Mr. David- son obtaining a divorce. It does appear to me most strange, that a father, convinced of the innocence of his daughter, by the declarations of this witness, should, at the very time when he is expressing his belief of that innocence, say, " Can you not fur- nish any means whereby I can assist in putting a check to these very unhappy proceedings for both families." His opinion is now shaken — why? because he says that he finds that Ann Denman, as to her declarations to him and Mrs. W., has sworn falsely. I must say here, it is not a little singular that Mr. W. should have acted in the manner 1 have stated. If Denman did make the declarations to which he has sworn, and he did believe them, I can scarcely believe it possible that he could have advised, or been a party to the with- drawment of all opposition to this suit, and leave a daughter, whom he believed innocent, undefended and unprotected in such a suit. I will not dwell upon this. I must confess that I can place no very great reliance upon evidence which appears to me so wholly inconsistent, and so contrary to all proba- bility; but, looking at the evidence of Denman her- self, I should think it is very likely that she may Davidson. 144 CASES DETERMINED IN THE 1856. have expressed herself in very doubtful terms as to May 17th. the guilt or innocence of Mrs. Davidson, I think that Davidson ^^^i "0* having had ocular demonstration of the fact, may have stated, though we have not the terms in which she did express it, a doubt as to whether the offence was committed. I apprehend she did not choose to draw a direct conclusion as to guilt, and that she expressed herself accordingly, and it may be she went still further. She now denies that she declared that Mrs. Davidson was innocent of the fact. I believe the truth to be, that Denman did use ambiguous expressions ; that they are now re- presented by Mr. and Mrs. W. to be stronger affirmations of innocence than they really were, or than they themselves believed them to have been ; and that Denman has swayed from the strict truth in denying them altogether, instead of admitting them in a mitigated form. That I believe to be the truth. Now then, it is, I think, clear that Denman did make a similar, or somewhat similar, declaration of innocence to the witness Carr, and that she has now denied such declaration generally; but I concur in thinking that the question was not fairly put to Ann Denman, and that according to all rule, as well as all reason, the question ought to have been put more specifically, whether she did not make a par- ticular declaration in such terms to such and such a particular person" at such a time, and in such a place. With respect to the letter in Denman's hand- writing, it may be expedient that I refer to the words of it — the terms in which it is expressed. It is not necessary to go through the whole of V. Davidson. CONSISTORY COURT OF LONDON. 145 the letter, it relates to many things which are 1856. irrelevant to the issue in the cause. " I know May nth. "you are kept short of money. The dear Pets Davidson " I have not seen yet, but when I do, 1 will " kiss them for you. Do, my dear Mrs. David- " son, keep up as well as you can, there is one "' above who knows you are innocent, and will, " if you look to Him, protect you through all " your trouble." Now, I think it is impossible to deny that this is a strong- declaration of Mrs. Davidson's innocence, the witness has admitted that she did write that letter, as far as it is admitted, it is inconsistent with the evidence now given, it operates against her credit; but she has not denied writing it, and therefore she is not to be charged with false swearing in that re- spect. I think, therefore, that I must consider that this letter is in strong contradiction of what she has now sworn in the course of her evidence ; and I shall deal with this case, and wi1;h her evidence accordingly. Lastly, there are alleged contradictions in the long evidence which she has given. Now, these I do not attempt to notice in detail. They were very properly brought forward by the learned counsel in great and minute detail, every circum- stance importing the pettiest contradiction, in evi- dence of this great length, was brought under the notice of the Court. 1 do not attempt to look at them minutely, but I shall give my opinion as to their general effect. I wiU now state what is the result of the con- sideration of all these circumstances, and of the whole evidence of Ann Denman. According to my VOL. I. L V. Datidson. 146 CASES DETERM-INED IN THE 1856. opinion, Ann Denman has not been actuated by May i7ih. any malicious determination falsely to accuse Mrs. Davidson Davidson ; that as to the commission of the offence itself, her mind and opinion has fluctuated because actual guilt was a conclusion to be drawn, and was not a visible fact. That she has made declarations importing innocence, or rather negativing know- ledge of guilt. That she has most imprudently, and without due regard to the obligation of her oath, denied such declarations, and that, conse- quently, her credit is to some degree affected, and it becomes especially the duty of the Court to see that the main facts deposed to by her are, as far as the case will admit, supported by probability, and other facts not denied. In truth, this is the great point of the case, to ascertain the credit of Ann Denman. It is a most remarkable feature in this case, that the general statement made by this witness is not impugned. Some statements, of which I doubt the importance, have been questioned ; but the stress of the attack has been upon the conclusions drawn by the witness, and not upon the facts deposed to by her. I say, in my view of this case, it wiU not be necessary to travel minutely through the whole of the evidence. I think that the conclusion I am to draw, whatever it may be, must be drawn from facts which have scarcely been made matter of dispute, and not from circumstances, the truth of which has furnished so large a field for argument. It was contended by the counsel for Mr. David- son, that there was a deliberate plan on the part of Mrs, Davidson to abandon her home in the Regent's Park when she went to Paris, ^.nd to throw herself Davidson W.- Davidson. CONPISTOEY COURT OF LONDON. 147 into the arms of Mr. Emile Lalouette. It appears 1856. to me also unnecessary to trace all the circumstances May i7th, from which that inference is drawn ; the course I shall pursue is, to trace the origin and continuance of the attachment to Mr. Lalouette, and, as inti- mately connected therewith, her conduct during her married life. It is from this source that the evidence of criminal intention, if it existed at all, must be drawn. I see nothing particular in the state of Mr. W.'s family that should induce me to adopt the suggestion that this lady was peculiarly disposed from circumstances to form a romantic though innocent attachment ; nor do I see why Mrs. David- son should be in any extraordinary degree the victim of girlish fanciest She, it is true, is one of a large family of daughters ; but not, as far as ap- pears, brought up or educated as a recluse. The period and circumstances under which Mrs; Davidson's acquaintance with Mr. Lalouette origi- nated are wrapped in some obscurity. Mrs. W- deposes that about a twelvemonth, more or less, before her daughter's marriage, she discovered a letter and a portrait in her possession, and about the same time she received a letter cautioning her against going abroad, as Miss W. was about to elope with a young Frenchman. Strange to say that of the circumstances connected with these letters, she has now a very indistinct recollection. 1 must say I think they were calculated to make a much more permanent impression, taking the de- position of the witness herself. I do not collect more specific information from Mr. W.'s evidence; according to his account, the matter ended in a L 2 V. Davidson. 148 CASES DETERMINED IN THE 1856. reprimand and the return of the picture. This is May 17th. Said to havG been a twelvemonth before the mar- davidson riage. Of what may have passed in the interval there is no evidence ; but in October or November preceding the marriage, which took place in Feb- ruary, 1855, the precise period matters not, about this time, we find that Miss "W. was carxying on a clandestine correspondence with Mr, D'Alcorn, a music seller, for he states that the letters he wrote to her were addressed to Miss W., at Mr. Beider- mann's, at Newnton, and not to her father's house; and through the assistance of this person, so clan- destinely carried on, she forwarded her letters to this Mr. Lalouette, then residing in the Rue de la Paix, at Paris. I think it necessary to refer to the letter, which is the letter written by this lady, that is annexed to the additional articles. This is it — " 1 have enclosed a letter for France, which " I should feel extremely obliged to you if " you would post for me as soon as you con- " veniently can. I have enclosed Is. for you " to get a lOd. stamp to put on it for me, " You must pardon the trouble I have given, "but having within the last few days fallen a " victim to injustice and severity, I am not allowed " to do anything without the interference of " others. My letters are all read before I re- " ceive them, and all I write is also pryed into." To what injustice, to what severity this letter refers, the Court has no means of judging. If I am to trust the evidence in this case, it could not have referred — I repeat, if 1 am to trust that evidence — to the former discovery of the inter- CONSISTORY COURT OF LONDON. 14D course that had taken place — the letter between 1856. Miss W. and Mr. Lalouette, but it refers to May i7a~ something else. "I must, therefore, beg you D^^orj " never to mention having received this letter, „ "■ 1 . Davidson. and if ever you have occasion to write again, " let it be as few words as possible. You can " write me a few lines to tell me you have " received this, and also that I am forgiven for " the liberty I have taken, to the address I have " enclosed ; enclose the letter to me in that sealed, " and write For Miss W. on it. The stamps for " the music shall be sent to-morrow, I shall not " be allowed to do so, but some one else will. " I expect I may have to live in London in a " few months ; should such be the case, you " shall find me a better customer than I have " been yet. I may probably live in town after " I am married, at all events some part of the "year. I must beg you to preserve the strictest " secresy, and never allude to this letter." Now, perhaps, erroneously, the Court, when it first read this letter, and having no information before it as to the commencement of the attachment between Mr. Davidson and Miss W., was inclined to think it must necessarily have referred to that attachment ; and, I think, for the most obvious reason, because the lady speaks of going to reside in London, and speaks of being about to be married, or rather, she says, after I am married, at all events. Now it turns out, ac- cording to the argument of counsel, that this had no reference jto any acquaintance between Mr. David- son and Miss W. at all, it was either a pure in- vention of the lady to curry favour with Mr. Davidson. 150 CASES DETERMINED IN THE 1856. D'Alcorn, or it must have adverted to somebody- May 17th. else. These are matters of minor importance. The Davidson important point of the letter is, that in October or l^ovember, according to the representation of the parents, the intercourse having been broken off, as they believed a year before, we find the correspon- dence carried on, and that two or three months before the marriage. It is conclusive proof, and it would be a mere waste of time to comment upon it. Now the marriage takes place in February, and what follows ? I proceed with Mr. D 'Alcorn's evi- dence — the box and the portrait, and a conversa- tion which fixes the matter to Mr. Lalouette. Now this has taken place very shortly before the visit to Paris, not an unimportant date. In March preceding money was forwarded to this gentleman. I need not trouble myself, after stating these facts, with going into the evidence as to the box and the desk. Here is, in fact, undeniable proof of the con- tinuance' of this connexion immediately after the marriage, or nearly immediately after the marriage with Mr. Davidson, and carried on up to the very last moment of time. I must slightly advert to the conduct of Mr. Davidson after the marriage. That Mr. David- son was kind, affectionate, and indulgent to a fault, is the evidence of all of Mrs. Davidson's nearest re- latives. Now what return does Mrs. Davidson make ? An utter disregard of all the duties which, by her marriage vow, and by every tie of gratitude, she was bound to discharge ; and to such an extent does she carry her misconduct, that she is the sub- ject of just and severe reprehension from her own father. Towards her husband, she shows not a V, Davidson. CONSISTORY COURT OF LONDON. 131 spark of aflfection, regard, or just deference. To 1856. him she is cold and heartless, and what is the cause May i7ti.. of all this ? Can it be other than a disgraceful davidsoin attachment, commenced before marriage, and shame- lessly carried on afterwards. This is the state of things when the visit to Paris takes place. I shall not prolong this judgment by discussing the pre- paration for this visit, or the quantity of things taken, or the letters burnt, or the intended duration of the visit ; that is no part of my judgment ; though it may be perfectly true, that all this was a precon- certed plan, it is no part of my judgment, and is not the fact or circumstance on which I intend to rely. They go to Paris, the week expires, Mr. Da- vidson is compelled by his professional engage- ments to return to London, Mrs. Davidson refuses to accompany him. Now what is the excuse for this gross act of disobedience, this acknowledged breach of all duty. Surely there must have been some very powerful motive, some extraordinary strong feeling in operation, to induce so unjusti- fiable a resolution as that of deserting her husband, with whom she had cohabited but four months ; no ordinary cause could possibly account for this; a husband, too, who had proved himself so devoted to her and so dedicated to the promotion of her hap- piness. I repeat, there must have been some power- ful cause to work such an effect. What is a power- ful cause? A criminal attachment, sad experience shows, can sever the strongest ties by which God and man can consecrate the marriage union. To avoid this solution, this probable explanation, probable, because of all the circumstances I have already mentioned, Mrs. Davidson invents, and her 152 CASES DETERMINED IN THE 1856. counsel, in the distress to which they were driven, May 17th. adopt the explanation, that religious obligations Davidson '^^^^ ^^' ^^^ bottom of the whole affair, and that a ,, "■ regard for conscience has dictated a step apparently Davidson. ° , . . , „ • VV i-w so much at variance with all conscience. Mrs. Da- vidson appears in the new character of a Roman Catholic. Now, I admit the motive to be strong enough, if the religious conviction is established. I am well aware that bonds the most sacred may be readily broken asunder, in the manner suggested. I deny not, that a violation of the marriage vow, the sepa- ration from a kind and affectionate husband, may be brought about by a conversion to that faith ; but I must have strong proof of the reality of such con- version ; I must be convinced that the assumption of such character is not a pretext put forth for the occasion, but a bond fide abandonment of a former faith, and the sincere adoption of another church. But what are the proofs of this great and all- important change ? The lady's own letter. I have not one word of any previous attachment to the Eoman Catholic faith ; I have not a single syllable from any of the witnesses of this lady intending to become a professor of that religion. It bursts out in the shape of the lady's own letter, the letter E to which I now refer. This is that extraordinary letter which this lady wrote on the 24th of May, Mr. Davidson having then left Paris and proceeded to England: — "My dear Madgwick, I hope you " arrived home safely without being very ill in " crossing. The rain must have calmed the sea, '' I think. I am expecting to hear from you *' every day to know what arrangements you Davidson. CONSISrORY COURT OF LONDON. 153 ' have made. I do not see that these rooms we 1856. 'have are quite the right sort for me, the entre- May nth. ^ sole is not quite the proper place for a lady, Davidson ' which I did not knoAV when I took them. ' There is a very nice little apartment in the ' same house on the 4 leme etage which is let at ' the rate of £18 a month ; it is very much ' better than this, and not so public, being higher ' up. I could go into it from Saturday or Sun- ' day, if you have no objection, or I could look ' out elsewhere, for I do not think this one is ' the right one for me ; but the other is just the ' one you would like, very private, and clean and ' comfortable. Write, and tell me what you ' think ; I also must have a servant, and no time ' should be lost. She must be French, and one ' of my own choosing." I will come to that presently. "I do not think I am bound to ' submit to be kept in the custody of any one." And that also : " and if you choose to part with ' me you cannot force me to be your prisoner. ' I never shall change my determination of being ' a Roman Catholic, and as soon I can I shall be ' received into the church." So the lady was not a Roman Catholic at this time, she was only bringing up for that extraordinary change at that period. " Now, from force of circumstances, " I am a member of none ; I cannot buy even a " prayer book, but you must not think that poverty "can make me change; no, never!" Now, this is the first intimation we have, in this letter, ever breaking forth of her determination to become a Roman Catholic. I will look at the other evi- dence presently. Then she goes on, " I hope that Davidson. 154 CASES DETERMINED IN THE 1856. " the dear little children are quite well;" and in the May i7tii. whole of tMs letter now comes one train of thought : Davidson " Oh Madgwick, do not let them hate me too 1 no, " speak kindly of me to them ; sweet little Jessie, " how I should like to see her, but no ! I shall "never see any one of my once kind friends again. " I shall never consent to return to England with " the world scoffing at me and my friends neglecting "me; no, such being the case I must submit, and "here I remain." But it is said all this is to be attributed to a change of religion. I confess I cannot arrive at that conclusion; but I arrive at this conclusion, that she had determined at that period never more to return to her husband's house, nor to his bed ; and that this is expressed, according to the evidence in the case, for the first time ; for not a single syllable is elicited from any one of the witnesses that there Avas any such intention on the part of Mrs. Davidson at the time she was residing in Regent's Park; and I must say, this letter is strong corroborative proof of the argument that was addressed to the Court by the counsel for Mr. Davidson, that the fact of leaving. Regent's Park was part of a plan which was afterwards carried into effect, never to return, to her husband, but to throw herself into the arms of Mr. Lalouette on arriving at Paris. "If I have ever " said anything in a hasty moment to offend you, " and for all my past conduct, I must humbly ask " your pardon and repent, every unkind word I " retract, and only remain firm to my faith. I " never shall change that now." This is part of the evidence strongly relied upon by Mrs. Davidson's counsel, in order to show CONSISTORY COURT OF LONDON. 155 that she was actuated by such strong religious mo- 1856. tives to separate herself from her husband, to whom May nth. she had been married four months. Davidson I cannot believe that if there had been any „ "• J Davidson. truth in this averment we should not have found some evidence leading to its probability at, an earlier period, some preliminary circumstances ren- dering so great a change consistent with proba- bility. But what are the circumstances relied upon? It appears that in Mr. W.'s letter reprimanding Mrs. Davidson for disobedience, he speaks of attend- ance at Wells Street chapel. This is the subsidiary evidence on which Mrs. Davidson relies in order to prove her a convert to the Roman Catholic faith. I know none of the merits or demerits of that chapel. I know it is a chapel where the service of the Church of England is performed, and that by episcopal authority, and I do not think I am entitled to assume that the attendance on any church of that description is demonstrative proof that its congre- gation either have become or are about to become Roman Catholics : I do not think I am entitled to go so far as that. I am told it is a place of noto- riety ; but surely it cannot be that the services are conducted in such a manner that any one who goes there is at once to be described as abandoning the faith they are worshipping under. This is proof the second. Now what is proof the third? It really does appear to what stress counsel are neces- sarily driven, for it is quite necessary in these cases that everything which the ingenuity or eloquence of counsel can urge in favour of their client should be brought forward. The last pretence is, that Mrs. Davidson was once heard to say she knew a lady 156 CASES DEI'EEMINED IN THE 1856. who had been a convert to the Roman Catholic May 17th. faith. Davidson ^ ^'^ of Opinion that this excuse, even if it stood Davidson ^^'^^^ ^"d Were not to be construed with all the cir- cumstances proving the previous attachment to Mr. Lalouette, even if it were an isolated fact op- posed to none, would utterly and entirely fail to prove the fact upon which so much has been as- sumed. Then, what are the consequences? That a false pretence has been put forward to justify Mrs. Davidson's refusal to accompany her husband, that I must seek for some other cause to account for that refusal, and what other cause has been assigned, or could be assigned, except her attach- ment to Mr. Lalouette ? If there is an eifect, there must be a cause; and if there be but two possible causes, and one wholly fails, you must necessarily . resort to the other. Here too, it must be remarked also — proved by this letter, proved also by Denman's evidence, that this lady was not only desirous of severing herself from her husband, but of being removed from all pos- sible control, from any one known to the husband ; for what does that letter state ? She desired Den- man might be dismissed, and a French maid of her own choosing might be substituted. This, too, is sworn by Denman — a French maid of her own selection. Now, such is my view of the facts up to the 22d of May. I now proceed, though not in minute detail, to examine the evidence of Ann Denman. It is, in my opinion, needless to go into a detail of all the evidence which has been given on this occasion, for Davidson V, Davidson. CONSISTORY COURT OF LONDON. 157 I do not found my judgment upon minute circum- 1856. stances, but it will be founded upon and I trust May i7th. justified by the leading facts which have been de- posed to by her, and which, as I conceive, have nei- ther been controverted, nor can be controverted, in this case. My judgment will be founded rather upon the inferences I draw than from endeavouring to show that the facts have been proved which have been disputed by Mrs. Davidson's counsel. Mr. Davidson departs by the train ; no sooner is he gone than Mr. Lalouette appears on the stage. Now, was this a fortuitous event, was this a mere ac- cident, that at the moment the husband departs the lover appears — a lover with whom a correspondence is proved to have been carried on till the very eve of Mrs. Davidson's departure for Paris, as proved by D' Alcorn. I can hardly suppose that counsel seriously believed that the Court would come to the conclusion that this was all purely accidental. But be it so ; strange and improbable as such a solution is, what is the next step? Between 10 and 11 o'clock, this gentleman is received by Mrs. Davidson in her lodgings, for what time it matters not. Now, who is received ? Stop and look at these circumstances. The lover before marriage, the beloved after marriage, the donor and the donee of gifts and presents. Who receives him? The wife who has just abandoned her husband without reasonable pretext, who has clandestinely, as to her own family, corresponded with him before mar- riage, clandestinely as to her husband afterwards. These facts have not been grappled with. Now, what stretch of credulity can induce any one to believe that parties so circumstanced met for Datidson. 158 CASES DETERMINED IN THE 1856. an innocent purpose? All knowledge of human May 17th. nature, all past experience, all experience in these Dawson courts, point to but One end. On what terms must the parties have been for such an interview to take place? Where was Mrs. Davidson's sense of her own honour, left in her own keeping, of which she ought to have been more particularly cautious when her husband was away? Where is her sense of fidelity to her husband when she so received the lover at the very time and very hour of her hus- band's departure ? Can I believe that a woman so acting would be an exception from all ordinary fi:ailty, an almost unexampled instance of female chastity ? I pursue the history. It verifies, and more than verifies, all I have said. In the evening — again I say, I care not at what hour, be it 9, 10, or 11 o'clock — and I care not whether Mrs. Davidson was dressed or half dressed, or redressed — Mr. La- louette comes again, and is admitted by Mrs. David- son. What signifies it how he got the key? He came, and was by her received. This is the sub- stantive fact. No remonstrance of Ann Denman availed, and I will add that no remonstrance could have been made too strong. They remained in the sitting-room tiU two o'clock in the morning — a fact which it wiU presently ap- pear from the interrogatories is an admitted fact. Now I come to one which may be doubtful. " Mrs. Davidson was sitting on the young man's knee," says Ann Denman, " and kissing him in my presence." Now very little has been said or could be said as to this evidence- — indeed none. Now suppose I omit this improper behaviour; suppose the Court should CONSISTORY COURT OF LONDON. 159 Davidson. be of opinion that Ann Deninan was not to be 1856. credited in any particular except where she was May nih. corroborated. Why, what then ? It leaves the case damson much where it was — much where it was — for I should not for one moment doubt the certainty of such familiarities from the circumstances I have detailed, whether a witness had deposed to them or not. The circumstances I have referred to per- fectly convince my mind that the indulgence of such familiarities was a necessary and inevitable sequence to the familiarities and to all the facts to which I have before adverted, and the continuance of the parties in them.. Now what is the next step ? Mr. Lalouette un- dresses and goes into Mrs. Davidson's bedroom. What matters it whether she asked him or not? What ought to have been her conduct had she not been carried away by her unlawful passion, and divested of all sense of duty to herself and to her husband? Why to have separated from him in- stantly — to have left the room and kept aloof from all such contact at any time, at any hour of the night, if she had had a sense of duty to herself. Assume what has been the excuse — that Mr. La- louette was ill, though I do not credit one iota of that supposition. Her duty remained the same, and all that humanity in such a case, with due regard to decency and modesty, could have re- quired, was to send for a doctor, and have left him in the care of Ann Denman. Now let me see the version given at the end of the 11th interrogatory, where it is asked whe- ther Ann Denman did not authoritatively interfere to induce Mrs. Davidson to send Lalouette away. V. Davidson. 160 CASES DETERMINED IN THE 1856. admitting therefore the fact of such remonstrance, May 17th. which is deposed to by Den man. Then the inter- Davidson rogatory goes on, — " Did not Mr. Lalouette say to you, you ought to know better, and if he were your mistress he would turn you out of doors? Did not Mrs. Davidson beg him to be quiet, and take no notice of what you had said?" This is the inter- rogatory addressed to the witness. Now mark the effect of this interrogatory. In the first place the continuance of Mr. Lalouette in the apartments is admitted; secondly, that Ann Denman from a sense of its gross impropriety re- monstrates in the strongest terms ; that, thirdly, Mr, Lalouette, disappointed for the moment in his views, threatens Ann Denman. And what does Mrs. Davidson? Why so dead was she to all sense of her own honour and duty, so entirely forgetful of what she ought to have done, that instead of listening to that faithful voice which might by pos- sibility have saved her, she takes part with her lover — repudiates that interference which might have saved her from destruction. One more quotation froni the interrogatories, and I might multiply them tenfold. Look at the 12th interrogatory, a very long one, I am not going through it, but a part I must read. Look at the 12th interrogatory, " Was not Mr. Lalouette asleep during the whole of the night, except at two or three short intervals? Is it not the fact that throughout the night the rainistrant sat in a chair between the bed and the table reading a book? Did not you, Ann Denman, sit the greater part of the night at a little distance from the ministrant? V, Davidson. CONSISTORY COURT OF LONDON. 161 Is it not the fact that throughout the night you 1856. never left the room but for a few minutes?" May i7th. Now let me pause and survey the picture as datidson drawn by Mrs. Davidson and her advisers, Lalouette fast asleep for hours in her bed. Where is the illness which has been conjured up for the occasion, and proved by no one? Where is Mr. Lalouette himself ?— 7 Undressed in Mrs. Davidson's bed. Where is Mrs. Davidson? — Sitting by the side of that bed for hours, watched if you please by her servant — for such is the picture — a married woman, a wife of four months' duration, the day she quitted her husband, that day and that very night receiving the object of her affection before and after mar- riage. Can any one not fit to be an inmate of an asylum for idiots, doubt the feeliag which subsisted between these parties. Give them the opportunity of the criminal indulgence of passions already so little restrained that all sense of duty and delicacy were gone, must not any one be satisfied what of neces- sity must be the case? I have enough, and more than enough, to satisfy me of the criminal intention. I wUl say a word or two more as to Denman's evidence. Much observation has been made upon her evidence, at the conclusion of the examination in chief, on the 2 2d article. Now I read this, and I continue this rather for the sake of showing that I have not spared my trouble in the consideration of this case, much more than from any necessity which the case itself requires. Now this was her further deposition on the 22d article : — " There is one circumstance respecting one VOL. I. M 162 CASES DETERMINED IN IKR 1856. "of the visits of the said Emile Lalouette to Mrs. V. Davidson May 17th. " Davidson which I have omitted to mention, and Davidson " "which I must confess did raise my sftSpicioBs as " to something wrong having taking place between " them. It was the oaily occasion on which I can "say that I had direct reason to suspect it. I " knew it was very wrong their being together as " they used to be, but till this time I cannot say " thait it occurred to me to suspect that they had " been criminal together. It was I think on the " occasion of the second morning visit. While " Mrs. Davidson and the said Emile Lalouette were " together in the sitting-room, on that occasion I " thought I heard the door of the room locked, and " when the said Emile Lalouette was gone, I asked " Mrs. Davidson why they had locked the door, and " she said that EmUe wished it, but that she found " it would not lock, as I should find if I tried it, " she said. She came to me in my room on this " occasion directly after the said Emile Lalouette " was gone, and I noticed that her dress was" so and so, and then she says she suspected adul- tery. Now it is said this is an after thought, this is a malicious feeling of Ann Denman — for some reason never explained, and quite inconsistent with her general conductj and wholly inconsistent with the letter produced-!— entertained towards Mrs. David- son ; that this is a malevolent exaggerated statement for the purpose of destroying her case. Now it does so happen that there is something here like a corroboration of this statement, and in a very extraordinary manner, I refer now to the evidence of Mr. Henderson : — " Mary Ann Denman V, Davidson. CONSISTORY COURT OF LONDON. 163 " has not, as suggested, more than once or indeed 1856. " ever admitted or declared to me her conviction of May nth. " the innocence of the ministrant of the crime im- datidson "puted to her in this cause. She stated when " speaking of the night scene between the parties " described in the libel that she did not see adul- " tery committed, and that she could not say whether " or no adulterv had been committed on that occa- "sion; but she stated her impression or belief to " be, that on the occasion of one of the morning " visits paid to the ministrant by the young man " Emile, adultery had been committed by them ; " and she stated to me the ground of such her im- "pression and belief, which, as she stated them, " were, that while the ministrant and the young " man were in the room together she heard the door " locked; and that she observed, on the young man " leaving, on that occasion, that ministrant's face " looked flushed, and that her dress was extremely " tumbled ; and that on her Mary Ann Denman " asking the ministrant why she had locked the " door, the ministrant had said that Emile, the " young man, had told her to do so." Now this is a remarkable confirmation, to which I am by aU the rules of law entitled to resort to show that Denman has spoken the truth. If, in- deed, the credit of Denman had not been impeached, it would not be consistent with the principles of law to refer to any declaration she had previously made for the purpose of showing that her evidence was consistent with truth; but if you impeach witnesses' credit, and charge them with wilfully in- venting a story, it is then competent to refer to other evidence to show that at an earlier period M 2 Davidson V. Davidson. 164 CASES DETERMINED IN THE 1856, they have made statements similar to and entirely May 17th. in Conformity with their evidence. Now, this is a remarkable confirmation — a con- firmation of what fact? why, a confirmation of this fact, that according to the evidence the statement of Mrs. Davidson herself was, Mr. Lalouette had proposed the locking of the door. And for what possible purpose was the door to be locked when Mr. Lalouette and Mrs. Davidson were together alone, except for purposes which I need not further specify. Now, then, I proceed to the conclusion of this judgment. I speak now as to the proof of oppor- tunity, which I have incidentally glanced at as I went along. Presuming for the moment, though I am by no means satisfied rightly tliat the adultery was not actually committed on the night of the 22d of May, that is, up to six o'clock in the morning; yet I see no reason whatever to discredit Ann Den- man, that at six o'clock she left the room for two hours ; that the parties remained together ; and she did not return till eight o'clock. Now, here was ample opportunity, and I doubt not Mrs. Davidson availed herself of it. What was the attempt to get rid of this evidence? Why, reference was made to the answer to the 12th interrogatory, which was, whether she had not remained in the room all the night, and because the witness happened to answer, as she naturally would do, in the following terms — I had better read it to be accurate : — " It is the fact, that throughout the " night ministrant, whenever I went in, was sitting " in a chair which is between the bed and the table" — ^what is said, and what is the argument? That Davidson V. Davidson. CONSISTORY COURT OF LONDON. 165 the witness has said throughout the night, including 1856. the two hours in the morning, after six o'clock. May nth. I cannot say I think that is an argument which ought to overthrow the testimony of this witness. Now, I entertain no doubt about the adultery being committed at that time ; but there were other opportunities. I have noticed one, when the door was attempted to be locked, and there was ample opportunity on all subsequent visits. Denman states that Mr. Lalouette visited this lady every day, and sometimes twice a-day for the whole week. Why, to speak of want of opportunity, and compare this case with Hamerton v. Hamerton, where the parties were never brought together but on one occasion, and that in the house of a lady of irre- proachable character, in her own drawing-room, in the middle of the day — to compare these cases together, and say the preponderance is in favour of Mrs. Davidson! There is as wide a difference as by possibility there can be in two cases. That case failed because the parties were not brought together ; but this case will succeed, because they were brought together over and over again. What is more — Mr. Lalouette accompanies this lady from the house — they are out for hours together, nobody knows where they go. Again, Mr. Smart traces them to a house where there was ample opportunity. In such a case as this, any practicable opportunity suffices where the ground is laid so clearly, so distinctly — where it is impossible for any man to doubt there was a criminal attachment which had entirely destroyed all Mrs. Davidson's just feelings of regard for her husband — extinguished her sense of propriety — for less stringent terms 166 CASES DETERMINED IN THE 1856. would not suffice. To suppose, when opportunity May 17th. occurred, as it did, to suppose there was not a con- davidson summation of that which had been sought for for Da i'o ®° -^^^S ^ time, would be to suppose that which never occurred in cases of which I have had cog- nizance in this court, nor I believe in the annals of human nature. I entertain no doubt; I believe the adultery is most clearly established, and I pronounce for the separation. The wife appealed from the sentence in the Con- sistory Court, but the husband having petitioned the House of Lords before the Court was inhibited, the process was transmitted to the House of Lords, and the husband obtained a divorce, the cause never having been brought up to the Court of Arches. CONSISTORY COURT OF LONDON. 167 Exceptive allegation — Pleading* 1_ March 6th. Dr. Ltjshington. da^sok I liave read the whole of the papers aiid the evidence in this case, but it is right I should i». Davidson. _ Where a wit- state that I have not read the whole of the evidence "^^s is asked in 1 . ■■ . , . /. 1 • interrogatory ana tne papers with any view oi making up whether he has my mind on the matter in issue, because that miss'iins^ ff " can be done only at the ultimate hearing of the Ire perunett"' case, when the evidence is discussed, and I have '"i*"! issue, ' ' and he denies also heard the arguments of counsel. But it has having made always been expedient in these eases, though it has ceptiCe aiiega- not always been customary, that the Court should thTfact^oTms be in possession of the evidence before it hears and ™dmi"„fonr^ determines th.e admissibility of any exceptive alle- admissible, gation. My experience in these matters undoubtedly is, that generally speaking exceptive allegations answer very little purpose. There are very few instances on the records of this Court, though there are some, in which the case has been in any degree affected by the admission of an exceptive allega- tion. But, however that may be, if an exceptive allegation is offered, and it be framed in con- formity with the established rules which govern these matters, the Court has no option and no right on its own part to reject such allegation ; and it is not necessary that the Court, in admitting an ex- ceptive allegation to proof, should come to the con- clusion that the witness shall be proved to be utterly unworthy of credit. That is not neces- * See ante, p. 133. 168 CASKS DETERMINED IN THE 1856. Davidson V. Davidson. sary to be determined beforehand, but in admitting March 6th. the allegation to proof the Court must determine this question, whether the witness may not have his credit to a certain extent affected, if the allegation which is offered be admitted and proved. It is impossible to doubt that this witness, against whom the exception is offered, is the most material witness in the whole case, for without her it would not be contended for a single moment that there would be any evidence as to the actual commission of adultery. Let us see what are the rules which have been acted upon in this court and in other courts. I remember the time when, I regret to say, there was some doubt as to the rules which governed the admission of an exceptive allegation in this court. I think I can find instances where they were ad- mitted where now upon principle they would be rejected. For that principle I cannot refer to a better authority than the authority of the judges in the Queen's case, 2 Br. & B. 285. The result of that case on this point I conceive to be this, that if upon cross-examination, in chief it could hardly arise, a question be put to a witness touching a fact or a declaration, verbal or written, foreign to the issue to be tried, the party so putting the question must abide by the answer, and cannot be permitted to contradict it by other testimony for the purpose of discrediting the witness.. This was the judgment of the whole of the judges upon that occasion, and it was founded upon a series of cases at common law, of which there was one very memorable case, Spenceley v. De Willott, reported in 7 East. 110, where Lord Ellenborough said^the CONSISTORY COURT OF LONDON. 169 case is not before me, but I remember it very well, when an attempt was made to move for a new trial on this account — " I have overruled it over and over again ; I hope the next time it arises a bill of exceptions will be tendered, for I am sick of over- ruling the point." That is the doctrine so laid down ; but I apprehend the converse of the doctrine to be true: that upon cross-examination, if a ques- tion be put to a witness touching a declaration, verbal or written, pertinent to the issue, in that case, you are not forced to abide by the answer, but you are at liberty to contradict it. Now, in this court we have generally expressed ourselves to the same effect, though rather in a dif- ferent manner, because we have always said this, if you except to the evidence of a witness, the fact must be pertinent to the issue, and not pleadable before publication ; and we have said also, with respect to a declaration, if you except to a declara- tion, that this must he pertinent to the issue. The question, therefore, which the Court has to deter- mine is, whether what is pleaded in this exceptive allegation was that which could have been pleaded before publication, whether it be pertinent to the issue or not, and whether, if pertinent to the issue, it is sufficiently stringent in any degree to affect the credit of the witness ; because the Court never can say that the admission of the allegation if proved would utterly destroy the credit of a wit- ness, and for many reasons this would be so. I take it that nothing would be more clear than this, that a witness may be produced in order to establish a case, and may swear falsely in one part altogether, and truly in another part, and that that witness 1856. March 6th. Datidson V. Datidson. 170 CASES DETERMINED IN THE 1856. March 6th. Davidson V. Davidson. may be believed wlien he or she swears truly, though it may be admitted he is actually perjured as to part ; and if it were necessary to seek for an authority on that question I could at once give it, though my memory does not suggest the precise name ;* but it will be found in a case, where the Common Pleas laid down, that you are not entitled to ask for a new trial though it is admitted that the witness may be perjured in part, because the other evidence the witness gives may be credible, the jury may have believed it, and the judge not thought fit to except to it. Therefore the Court is not to say in all these cases that the credit of the witness is to be destroyed, but to be affected ; and that being the case, it must see how far the evidence of the witness is strengthened and corroborated, or weakened, by all the rest of the testimony. There may be many facts and circumstances appearing from the evidence of other witnesses which may have an effect one way or the other, but on that it is not my business to enter. I know of no case which militates against what I am saying in the slightest degree. The case of Burgoyne v. Free, 2 Hagg. 456, I could not alto- gether place much reliance on, and for an ob- vious reason, that the case of Burgoyne v. Free was a case in which there was a prosecution against a clergyman for immoral practices, and had refer- ence to what we call in this court a criminal pro- ceeding, which is governed by principles and rules somewhat varying from those to be considered in proceedings of a different nature ; and moreover, * See Bradley v. Rtcardo, 8 Bing. 59. CONSISTORY COUET OF LONDON. 171 Sir John Nicholl stated in that judgment, he did not mean to go into the whole doctrine of exceptive allegations, but only so far as was pertinent to the admissibility of that plea. Withyregard to the case of Atkinson v. Atkinson, 2 Add. 487, I. confess I do not see its bearing on the present case. Now, if it was a mere question as to the belief of the witness or not, it has been truly argued on former occasions, and indeed decided, that the mere belief of a witness is not a necessary matter in the case at all one way or the other, be- cause the Court founds its judgment upon facts deposed to, and not upon, as Lord Stowell ex- pressed it, the logical deductions of the witness, and most rightly and most properly was it so decided. But there is another matter in Atkinson v. Atkinson, which is this, the examination in chief was on the 15th and 16th articles, and the facts in the excep- tive allegation might have been pleaded before pub- lication. I take it to be an indisputable principle that you shall not plead after publication that wljich might have been pleaded before ; and that could not be done in this case. Again : in Atkinson v. Atkinson, the witness was not interrogated as to any admissions. "Suppose," says Sir J. NichoU in that case, "that an interrogatory had been ad- dressed to Hobbs to this effect: 'Have you never stated so and so, namely, your belief that the defendant never committed adultery with Mrs. Rolls either generally or a fortiori specifically; that is, have you never so stated to such and such persons, and so on?' Why the witness might then not improbably have admitted that she had so said, and might have accounted for her having deposed differ- 1856. March 6th. Davidson V. Davidson. 172 CASES DETERMINED IN THE ^^°' ently." It evidently was the opinion of the learned March 6tb. judgc, who decided that case, that the matter ought Davidson to havc been put in interrogatory. What would Davidson, havc been the effect of the contradiction on that interrogatory in the opinion of the learned judge is clear. In this case the question is put to the wit- ness, who negatives the admission. Then I examine .this exceptive allegation for two purposes. I lay out of the question that it is impos- sible the contradiction could have been pleaded before, and I come first to see whether it is per- tinent to the case ; and secondly whether in itself it is a stringent contradiction. "When Mrs. W.," these are the words of the witness, " when Mrs. W., the ministrant's mother, arrived in Paris on the 29th May, and I opened the door to her, she did I think say, the very first thing, ' Oh, Denman, tell me, is it as bad as we think? — is she guUty?' or some- thing to that effect." So far the witness admits the words of this interrogatory. Then the inter, rogatory goes on: "Did you not reply. Comfort yourself, madam, she is not guilty?" and the wit- ness answers, " I did not repl)', Comfort yourself, madam, she is not guilty; no, I am sure I did not." Now, that I apprehend to be a complete contra- diction to the interrogatory which has been put; and I cannot help thinking that it is a very mate- rial interrogatory with respect to this case. It is pertinent to the issue, because it relates to the com- mission of adultery, which is the very issue in the case; and it is of importance for this reason, the witness can hardly be supposed to have forgotten, so very material a declaration, if she did make it, as " she is not guilty.'' CONSIbTOBY COURT OF LONDON. 173 It has been mixed up very ingeniously by the counsel for Mr. Davidson with a subsequent part of the interrogatory. " If nay, will you venture to swear that you never told the ministrant that those were your very words." That is a totally different and distinct inquiry altogether. The one inquiry is as to the fact, did you declare to Mrs. W. that in your opinion Mrs. Davidson was not guilty. The witness has answered ; then the interrogatory goes on to a separate and distinct declaration of a dif- ferent kind : " Will you venture to swear that you never told the ministrant that those were your very words?" Then she says, "I will venture to swear that I never told the ministrant that those were my very words.'' It appears to me, with all my reluctance to ad- mit exceptive allegations, that I have no power, looking at the rules and practice which have governed this court, to reject that article. The contradiction is complete ; it propounds that she did reply in the words following : " Comfort your- self, madam, she is not guUty ;" and that such reply was made in the presence and hearing of the said B. W. It is a complete contradiction, and pertinent to the issue. With regard to the other, the 18th interrogatory, the answer to the interrogatory is: "I have not expressed to Mr. and Mrs. W., the father and mother of the ministrant, my belief that the ministrant is innocent of the charge of adultery. I have never expressed that belief to them ; I have only told them as near as I could everything as it occurred the same as near as possible as I have in my evidence, but never expressed to them the 1856. March 6th. Davidson V. Davidson. 174 CASES DETERMINED IN THE 1856. March 6th. Davidson V, Datidson. belief interrogate." The alleged contradiction is that " on several occasions since her return to England in attendance on the said Katherine Ann Davidson, party in this cause, as well as previously, she has expressed to the said Mr. and Mrs. W., the father and mother of the said Kathe- rine Ann Davidson, party in this cause, her belief in the innocence of the said Katherine Ann Davidson." Now, it is said this is immaterial; and it is said the question to the witness is in respect to immaterial matter. So it is as to the facts, but not at all imma- terial with regard to the credibility of the witness, whether she has made a declaration to that eflFect; it is the most material fact of all. It does not require, in order to eifect the declaration of a witness, that the declaration should be matter of great import- ance; it must be pertinent to the issue or it falls within the bann of Lord Tenterden ; but if pertinent to the issue, it need not be of such materiality as to affect the whole case. Looking to the whole of the allegation, I regret to say that I feel myself under the necessity of admitting this allegation. CONSISTOEY COURT OF LONDON. 175 Fyler V. Fylee. 18'''6. Aug. 8th. Husband and wife — Separate income — Costs. — ■^ ^ \ Where the wife is plain- In this case the wife instituted a suit for separa- tiffand fa'is in .J her suit, if liCT tion, on the ground of adultery, agamst the hushand. income is The husband recriminated. The witnesses were ex- poniont^™he amined vivd voce ;* and the adultery of the husband hu'X^df thl^ and wife having been proved, the Court dismissed ^°^^^^^"^m both parties. Before sentence, but whether before «» ^e 'a^^d ■, . .J 1 1 i> 1 1 ** against the the witnesses were examihed was doubtful, the husband, but proctor foj; the wife applied for payment of costs in to pay those the usual manner ; when the matter was directed "^"^ ^ '^'^^ ' to stand over. The question now was, whether the wife was entitled to have her costs paid. The facts were stated in act on petition and affidavit. Bayford and Twiss, for the husband The wife's income is £157 10s., made up of £55 10s. received by her of her trustees, and £102 paid by the husband. His net income is £308; out of which he has to pay for policies of insurance to secure money advanced by the trustees of the marriage settlement £160, he allows his wife £102 — this leaves him £46 a year. (They cited, upon the general principlej Wilson v. Wilson, 2 Cons. Eeps. 203 ; Davis v. Davis, ib. n. [Dr. Lushington -■ There and in other cases the Court kept the power as to costs in its own hands till the end of the suit] ; * This is the first instance in which the examination was throughout con- ducted vivd voce in court. 176 CASES DETEEMINED IN THE 1856. Beevor v. Beevor, 3 Phill. 261 ; Belcher v. Belcher, Aug. 8th. 1 Curt. 444 ; Walker v. Walker, ib. 564.) Ftlbr V. Ftleb. Phillimore and Spinks, for the wife — The whole of the husband's income may be said to be derived from the wife, for the husband contributed nothing to the settlement; and it has been by borrowing the wife's money from the trustees that he has attained his present rank. He has paid the costs in the suit up to the time when the wife's proctor was changed, and thereby admitted his liability to pay the whole. There is nothing to take the case out of the regular course, according to which the wife would be enti- tled to her costs de die in diem : Barrow v. Barrow, 17 Jur. 240. De. Ldshington. I must decide this case according to the ordi- nary practice of the Court. The general pre- sumption is, that the wife has no means, and then the husband must bear the burden ; but to this there are exceptions, as where the wife has a large income in comparison with the husband. If in such a case the wife is plaintiff, the Court will hold its hand till the end of the proceedings ; and if the wife succeeds, the husband is condemned in the costs, as in ordinary cases between parties not hus- band and wife. And when the wife has no income whatever, however great her demerits, whether she be plaintiff or defendant, the husband must pay the whole costs, even the costs of vexatious appeals. This case I shall deal with exactly as I should have done, had the question been raised on a question of costs de die in diem, entirely irre- PREROGATIVE COURT OP CANTERBURY. 177 spective of the merits of either party, and I shall 1856. look merely to the means of the husband and wife. Aug. sth. So far as the facts are before me,*the husband has fylek scarcely- any income at all. The insurance is a proper deduction and of essential value to the wife, as it is the security for advances made out of the settled funds. Davis v. Davis is the authority which I shall follow; and as the wife has not suc- ceeded, I shall not allow her costs to be taxed now against the husband. PREROGATIVE COURT OF CANTERBURY. In the goods of C. Cockayne. Revocation — Intention — New will unexecuted. V. FVLBR. On Motion. 1856. May 15th. This deceased made her will, dated the 21st of A.havingawiii May, 1839, and also a codicil, dated the 7th of offtheiiistpage October, 1852. The will was written on seven sides which were ""e of letter paper ; the seventh side, upon which were thTwitnrasesf the signature of the deceased, and subscription of ?"^ ^^'^'f^ ^■ ° ' J^ to bum the the witnesses, and a memorandum as to the place page so cut off. ^ A. then made some altera- tions in the remaining pages of the will, desired B. to write out a new wiJJ, and send Sor A.'s solicitor. B. wrote the new will, but did not burn the part cut off, as A. knew. A. died beforo executing the new will, — Held, on motion, that the former will was entitled to probate, lliei'S being no intention to revoke, except in connexion with the completion of a new will. VOL. I. N 178 CASES DETEUMINED IN THE 1856. where the deceased desired to be buried, contained May 15th. no dispositive part of the will. On the day before In tiiT^odsof her death the deceased cut off this seventh sheet in c.cocKAYNB. ^j^g presence of her servant, who deposed that on that day the deceased took from a locked portfolio the wUl and codicil, and that after having read the wUl, the deceased with a pair of scissors cut off the last sheet and gave it to the deponent, saying, " Take and bum that, that's nothing." But that the deponent, being the only person present, did not like to take upon herself the responsibility of destroying the paper, and accordingly left it on the table near the deceased; that the deceased gave no reason for so cutting off the last sheet, but deponent believed, from previous recent conversations with her, in which deceased expressed a desire to be buried in Brislington Cemetery; that her reason for so doing was, that the said half sheet contained a direc- tion that she should be buried at Stapleton. The deponent, after stating that the deceased then made some alterations in the remaining six sides, deposed that shortly after the alterations had been made, she, by direction of the deceased, sent a letter to Mr. Knapp, the deceased's solicitor, requesting his attendance on the following day ; that the deceased then said to her, "I wish you would write this paper for me, in case I may not be well enough to tell Mr. Knapp when he comes to-morrow ;" whereupon de- ponent proceeded to write, from her dictation, the paper, which, when completed, the deceased en- deavoured to sign, but from weakness was unable to do so. The deponent folded up in an envelope the will, including the half sheet cut off, the codicH, and the paper or intended new will, and placed them in PREROGATIVE COURT OF CANTERBURY. l79 a drawer, where they remained until after the death 1856. of the deceased, save on the occasion when they were May i5th. on the following day produced to Mr. Knapp. This j„ t^TZ'odsof gentleman deposed, that in compliance with the c.cockayne. letter sent to him, he came to the deceased; that the papers having been produced by the ser- vant of the deceased, she, the deceased, pointed to the paper written by the said servant, but was unable further to express her intentions. And deponent, finding his assistance of no avail, shortly afterwards left the deceased, who died on the same day. In some particulars the proposed new will was copied from the former will, but the instruments differed materially. The specific legacies were dif- ferent ; and the second paper appointed neither executor nor residuary legatee — the former will ap- pointed both. Jenner moved for probate of the former paper as originally executed. — The deceased had no inten- tion to revoke that will unless she could execute another ; and this she at once attempted, but was prevented by death. The codicil remained un- touched ; and the seventh sheet, though separated from the will, was preserved with the rest of the will, as the deceased weU knew. The act of revo- cation was not completed ; and the intention to re- voke was dependent on being able to give effect to another will. The case came within the principle in Winsor v. Pratt, 5 Moore, 484 ; Onions v. Tyrer, 1 P. Wms. 445; Brooke v. Kent, 3 Moo. P. C. C. 348. N 2 180 CASES DETERMINED IN THE 1856. Sir John Dodson. May 16th. — The circumstances of this case, looking to the In the goods of . «. i i i • ±' ccocKATNB, preservation of the part cut off and the subsisting codicil, are singular; and I am strongly inclined to agree with you that the deceased had no intention to revoke this will, unless she could execute another. But I do not like to dispose of the case on an euo parte motion, and in the absence of parties who may be injured by the upholding this instrument, and who may call in the probate at any time here- after. The motion was granted subsequently, on the Court being satisfied that very great delay and in- convenience would be incurred if all the parties interested were cited. PREROGATIVE COURT OF CANTERBURY, 181 In the goods of A. M. Ash.* Incorporation of Papers. On Motion. 1856. May 26th. This deceased left a will in her own handwriting, Lists of piate written on two sides of a sheet of paper, and dated Srixf but^ 23d March, 1849, by which she "gave and be- :°d~''on queathed unto my sons Edward, John, William, the same sheet J 1.1 "' paper with and James the articles of plate set down under "'e ">» which their respective names in the annexed schedule." them, as in ex- On the third and fourth sides of the same sheet of !Siirand?che- paper on which the wUl was written were lists of fhetand-^ '" articles of plate, headed with the words " list of "'"'"s »f t^e ■, J, , , . testatrix, ad- plate for ,' the name of each son being added ; ™'"ed to pro- and at the end of each list was the deceased's dence could signature, but without date or attestation. The show whethe'r" subscribing witnesses were unable to depose whether wruten'aT X these schedules were written at the time of execu- 'i""^ °' ^''^'="- tion. tion or not. Robertson moved for probate of the will with the schedules. Sir John Dodson. These schedules are on the same sheet of paper with the will, which refers to them as in existence at the time when the will was written. They may, therefore, be considered as incorporated, and as such entitled to probate. * See In the goods of Hunt, 17 Jurist, 720; In the goods of Hakewell, 4 W. R. 304. 182 CASES DETEKMINED IN THE In the goods of The Countess Dowager oe Pembroke. Incorporation of Papers. 1856. On Motion. May 26th. A paper writ- ten before the will referring to it, signed and dated but not attested, and not found with the will or pro- duced at the time of the execution of the will, not admitted to probate. Lady Pembroke left a will dated 29 th of July, 1853, and three codicils dated 29th of August, 1853, 21st of February, 1856, and 17th of March, 1856. By the first codicil she gave " to my daughter Elizabeth, Countess of Clanwilliam, such articles of plate as should be enumerated in any list or catalogue found with my will or among my papers, and marked or intended for her." No such list or catalogue was produced at the execution of any of the codicils, or found with the will ; but in a plate chest was found a sealed envelope indorsed " July, 1851. List of plate to be divided off and given to Lady Clanwilliam ; " and inside the enve- lope was a list of articles of plate, headed " Lady Clanwilliam," and signed and dated " Catherine Pembroke, July, 1851." Addams moved for probate of this list, as clearly identified and in existence when the will and codicils were executed. Sir John Dodson. There is a case in 2 Curt. 831, In the goods of Sotheron, which is an authority against this motion ; indeed, the facts in that case were much stronger in favour of the incorporation of the PREEOGATIVE COURT OP CANTERBURY. 183 papers in question than the facts are here. In 1856. rejecting that motion, Sir H. Jenner said lie was May seth. not aware of any case in which it had been held inthTgoodsof that a paper should form part of a will by merely countess beinw referred to. I must reiect this motion. dowager op "^ " Pembroke, In the goods of James Shilling. Survivorship — 1 Vic. e. 26, s. 33. Qn Motion. ^^^^- Aug. 4tli. James Shilling died in July in the present year, a. and his son having made and executed his will, and appointed dead, and no , . m, ci-MT 1 J. n • 1 evidence could his son ihomas oniumg sole executor and universal be given as to legatee. The deceased died a widower, and had no ^jved! *A.'by other issue. The deceased and his said son Thomas ""^ 1"*?,^^' pointed his son were drivinff home in a gig near the river Medway ; executor and . 11 1. f 1 • universal lega- the next morning the horse and gig were found m tee. The son the river, and the bodies of both father and son and children, drowned! No person saw the accident, and there Ad'mtoirtmtion was no proof as to which might have been the sur- "f JhefaTher vivor. ""'' '''" *"" nexed, granted Thomas Shilling left a widow and several children, to the widow, as adminis- and died intestate. tratrix of her husband,nhilst living the sole Robertson moved for letters of administration un-ye'saViega- (with the will annexed) of the goods of James tee in the win. Shilling, deceased, to be granted to Charlotte Shilling, the administratrix of Thomas Shilling, 184 CASES DETERMINED IN THE 1856. AajT. 4lh. deceased, whilst living the sole executor and uni- versal legatee named in the will of the deceased. intii^dsof He relied upon the 1 Vic. c. 26, s. 33, which pro- smw-ing vides that if any person being a child or other issue of the testator shall die in the lifetime of the testator leaving issue, and any such issue shall be living at the time of the death of the testator, the devise or bequest shall not lapse ; that this was a remedial enactment, and there were no facts before the Court to exclude its operation, so that it would govern the present case. Sir John Dodson granted the motion. In the goods of John Poyer Poyee. 1856. On Motion. Aug. 7th, A. waa ap- pointed execu- tor and residu- ary legatee in trust ; his ap- pointment as executor vpas revoked by a codicil. Ad- ministration granted to the guardian of minor children, >vho were the residuary lega- tees in prefer- ence to 4' This was a question respecting the administra- tion, with the will and codicils annexed, of the unadministered goods of the deceased. By his will, made in 1838, the deceased appointed S., C., and K., executors and residuary legatees in trust. By the first codicil, dated December, 1844, after reciting that by his will he had appointed such per- sons as executors and trustees, the testator revoked the appointment of K. as an executor and trustee, and every devise, bequest, interest, power, and PREROGATIVE COURT OP CANTERBURY. 185 authority thereby given to or vested in him, and gave 1856. the real and personal estates comprised in his will Aug. 7tii. to S., C, and N., upon the same trusts, and with ,n,h~dsof the same powers as declared in the will, in all JohnPoyeb respects confirming the will except as to the substi- tution of N. instead of K. as executor and trustee. By the second codicil, dated March, 1847, he de- sired that C. and K., named in his will as his execu- tors, be no longer regarded as such, and in their place he nominated D. and R. to succeed thein ; and after bequeathing an annuity and giving some legacies, he ratified and confirmed his will except as the same was thereby altered. On the 6th of July, 1850, the will and last codicil were proved by S. alone, D. and E. having renounced the probate. On the 13th of February, 1854, probate of the first codicil was taken by S., power being reserved to N., the executor and trustee therein substituted, to come in and prove. D. and R. renounced probate of this codicil also. S. and N. are since dead; and a grant of letters of administration of the unad- ministered goods of the deceased was required. The children of the testator, the residuary legatees named in the will on attaining the age of 21 years, were minors, and had elected their mother as their guardian to take administration of the unadmi- nistered goods of the deceased for their use and benefit. Upon this the question arose, whether the appointment of C as residuary legatee in trust was revoked either expressly or by implication by the second codicil, and whether in that character he would not be entitled to the grant though his ap- pointment as executor was revoked. It appeared by a decree of the Master of the Rolls, in a suit 186 CASES DETEEMINED IN THE 1856. respecting the trusts under the will, that the Master Aug. 7th. of the KoUs declared that the appointment of C inthT^dsof contained in the will of the testator, as one of the John poyeb trustees thereof, and the devises and bequests to him POTER. ' ^ as such trustee therein contained, were not revoked or affected by the codicils to the said testator's will, or either of them ; that the appointment of K. contained in the will to be one of the trustees thereof, and the devises and bequests to him as such, were revoked by the codicil of December, 1844 ; and that such appointment was not set up or revived by the codicil of March, 1847. Swabey moved the Court to grant the administra- tion to C, as surviving residuary legatee in trust therein named. He cited Hutchinson v. Lambert, 3 Add. 427, and relied on the general practice of granting administration, with the will annexed, to the residuary legatee in trust where an executor fails to represent a testator. Deane, on behalf of the guardian of the children, opposed the motion. (He cited Coussmaker v. Cham- berlayne, 2 Lee, 243; Boddicott v. Dalzeel, ib. 294; and Fawhener v. Jordan, ib. 327.) The practice as to grants to residuary legatees in trust is correctly stated, but C. is a mere trustee ; for the testator, by revoking his appointment as executor, has shown that he did not intend C. to take probate o:^ or inter- fere with the proving of his will. C. is not to get in the estate, though when got in it may vest in him. The testator evidently knew the distinction between the office of executor and that of mere trustee. He has revoked the appointment in one PREROGATIVE COURT Of CANTERBURY. 187 character, and C. remains but a trustee, and to a 1856. trustee, merely as such, this Court does not grant Aug. 7th. administration. i„ ^^J^, „f Sir John Dodson. I am of opinion that the appointment and revo- cation as executor distinguishes this case from those under the ordinary practice as to residuary legatees in trust, and that I cannot grant the administra- tion to a person who was clearly intended by the testator not to be intrusted with it by this Court at least, I shall decree the administration to the guardian of the children. John Poybk FOYEB. Farmer v. Brock. Evidence — Corroborating facts — Witness discredited. 1866. June 9tli. Perren Mehew left a will dated July the 3d, The two sub- •' scribing wit- 1854, in which he appomted K. A. Farmer sole nesses were the executor and residuary legatee, and by which he produced in gave several legacies to various persons, and an ^ff^neof annuity to F. W. Brock, who, as residuary legatee '^^^^ J,^; ""' in a former will dated January, 1853, now opposed ^here^^was no ^ the will of 1854. There was also a codicil to the structions. the evidence of the single witness, corroborated by the probabilities of the case. Will pro- nounced for on V, Bkock 188 CASES DETERMINED IN THE 1856. will of 1853, made in June, 1854, by which Fanner Juno 9th. was appointed executor of the will of 1853. fa^ek The will of 1854 was propounded in an allega- tion in common form, upon which the two sub- scribing witnesses were produced and examined. They deposed to the due execution of the will, but differed as to some not very material circumstances noticed in the judgment. There was no question as to the capacity of the deceased, nor was it con- tended that his signature was forged ; and the attestation clause was complete. There was no evi- dence of instructions, and the evidence tended to show that the body of the will was in Farmer's hand- writing. No counterplea was brought in before pub- lication, but an allegation was brought in excepting to one of the witnesses, Ball, on the ground that he had admitted that the will was not signed by the de- ceased in the joint presence "of himself and the other witness, and that on interrogatory he had denied having made such admission. Upon this exceptive allegation several witnesses were examined viva voce; the admission as pleaded was proved ; and at the same time it was also proved that the witness Ball was 18 or 19 years old, and a potboy in the employ of a man named "Wagener — had been tampered with by this Wagener, who had no interest in the result of the case, but expected he might make money out of one of the parties. At the time of execu- tion both witnesses were in the employ of Farmer — Bird as nurse, and Ball as porter. Jenner and Deane, for the will, submitted that the evidence of the unimpeached witness was suffi- cient to establish the will of-a testator whose PREROGATIVE COURT OF CANTERBURY. 189 capacity was not disputed, and whose signature to 1856. the will was admitted to be genuine. ju„e 9th. Farmer V. Broce. Bay ford and Phillimore. contra The evidence »• ot a single witness, however credible, if unsupported by corroborating circumstances, was never ad- mitted as sufficient proof of a testamentary act. Here there were no corroborating circumstances, but everything to raise a suspicion ; no 'proof of instructions, yet the will written by the party pro- pounding it, and who took the largest benefit under it, both witnesses being in his employ. (They cited Theakston v. Marson, 4 Hagg. 291.) In reply, Hatchwell v. Eatchwell, 2 N. C. 513, and Gove v. Gawen, 3 Curt. 151, were cited. Judgment. Sir John Dodson. After stating the facts. The discrepancy between the two witnesses is such that it cannot be ex- plained away. They differ as to whether Farmer was present or not at the time of the execution of the will ; whether they came once or twice into the room — the first time to sign their names, the second time to add their descriptions. Bird says Farmer was present aU the time, and that they came up a second time at the request of the de- ceased himself, to "figure in their descriptions." Ball deposes that Farmer was not present, and that he, Ball, went but once into the room, and then wrote his name and address as they now appear. If these were matters of importance to the issue, and I were bound to decide between these two wit- V, Broce, 150 CASES DETERMINED IN THE 1856. nesses, I should have little hesitation in trusting June 9th. Mrs. Bird rather than the other, knd for this reason, Farmer that her testimony throughout is consistent, whilst BaU contradicts himself. The material point, how- ever, is whether the deceased signed the will in their presence, and they in his ; and they both depose in the affirmative. But it is quite clear, from the evidence given upon the exceptive allega- tion, that Ball, in describing what took place at the execution of the will, has not kept to one story throughout ; and one of the questions for my de- cision is, which of Ball's statements is true. I think the truth will be found where he is corroborated by Bird, and not in those accounts of the transaction which he gave whilst in the employ of a man who was clearly shown to have endeavoured to make money by inducing this young man to give a false history. StiU BaU is discredited; and I am pressed with the argument that the Court cannot pronounce for this will on the testimony of a single witness ; and in support of that argument, and to show the practice of this Court in this respect, cases were cited, as Theahston \. Marson, 4 Hagg. 291. The marginal note of that case is correctly drawn. It was the case of an unfinished pencil memo- randum ; very diflferent, therefore, from the present case. There were no adminicular circumstances whatever ; and the whole depended upon the bare testimony of one witness. In Moore v. Payne, 2 Lee, 595, it was held that one witness was suffi- cient if corroborated by circumstances. So in Mackenzie v. Yeo, 3 Curt. 125, the evidence of one witness was held not sufficient to sustain the paper^ in the absence of any circumstance leading up to PKEROGATIVE COURT OF CANTERBURY, 191 the probability of the transaction, there being, on 1856. the contrary, various facts adverse to the validity june 9th. of the will ; and in the very next case in the same fambb volume, Gove v. Gawen, where the two witnesses „ "• , . Brock. differed, the will was pronounced for on the evi- dence of one, the probabilities of the case showing that testimony to contain the real account. In no case, then, has it been held that there must of necessity be more than one witness. " The solem- nity of the civil law is not requisite with us," observes Sir G. Lee, in Moore v. Payne, " it is suflB.cient if there be adminicular proof to corrobo- rate the one witness." What, then, are the circum- stances in this case ? There is the codicil to the first will, where Farmer is introduced as an exe- cutor, and that codicil wa,s prepared by a solicitor, and is unimpeached. Brock takes under the will propounded, in the shape of an annuity, a very considerable benefit, and so do other friends of the testator. The signature is not disputedy the capa- city is not denied ; nor, in fact, can I altogether disregard the evidence of Ball himself, given on oath, in support of a proper execution, and agree- ing with the testimony of Bird. I, therefore, pro- nounce for the will. 192 CASES DETERMINED IN THE 1856. March 3 1st. February Ist, 5th, igth. Angust 16th. Bremer v. Freeman and Bremer. Will — Domidl by the law of nations — Domicil hy the law of the country in which the testator resides — Costs. The deceased died at Paris, in April, 1853. She A, a British- born subject, many"?^'^*^ left a Will made according to English law, and exe- deS raided ^^^^ ^^ ^^"8 on the 19th of September, 1842, in in Paris for the the following words : " I, Fanny Allegri nee Calcraft, her life, and the Only surviving child of the late H. F. Calcraft, a lieutenant-general in her Majesty's service in the East Indies, and who resided and was buried at Brighton, in England, at present residing in Paris, in the kingdom of France, widow, do make and declare this my last wiU and testament in manner Italian. There following." She then dcviscd certain real property in India to D. A. Freeman, gave 1000 francs each to the two persons who might be with her in her last iU- 500 francs to two charitable institutions in died there; as- sumed for many years an Italian name, and described herself and was described in legal docu- ments as ness, was no evi- dence of the fact of mar- riage; and the statements made by the 1 in re- spect to the marriage were ijontradictory. She had real property in India, the bulk au^'ta'^C-"' ^^*® Captain Bremer, R.N., or such of them as land, and made shall be livinsT at mv dcceasc. her will in the t\ . „ n t .r-i English form, D. A. freeman and J. Gr. disposing of her property, with the exception of foar small legacies, amongst English persons. — Held, that by the law of nations the deceased was domiciled in France ; but that as she had not been naturalized, nor obtained an authorized domicil in and as required by the law of France, she might by the French law make a will in the English form, and that such will was entitled to probate in this country. deceased in re- Paris, and the remainder of her property "unto and equally among the said D. A. Freeman and my cousins, E. A. Bremer, Susan Bremer, James Grignon Bremer, and H. Bremer, children of the p such of them as And she appointed Bremer (one of such PKEROGATIVE COURT OF CANTEIlBURr. 193 cousins) executors. This will was prepared by 1856. Mr. T. Freeman, the solicitor of the deceased, and March 3ist. the father of Mr. D. A. Freeman. ^tthTig.h!'' Mr. D. A Freeman and Mr. J. G. Bremer took Aug^t i6ih. probate of this will in the Prerogative Court on the bremek 24th of June, 1853 j but some doubt having subse- fbeeman quently arisen respecting the domicil of the de- bkemer. ceased, and consequently the validity of her will, Susan Catherine Bremer, who was also one of the next of kin and entitled in distribution, on the 28th of October, 1853, called in the probate. This pro- bate was brought in, and Mr. Freeman denied Miss Bremer's interest ; an appearance was also given for Mr. Bremer, who was the brother of Miss Bremer, and he declared he did not propound the will. The suit then went on as an interest cause, in which Mr. Freeman was ultimately condemned in the costs. The interest cause being ended, the will was pro- pounded in an allegation in common form, upon which the two subscribing witnesses only were examined, the drawer of the will, Mr. T. Freeman, not being produced. A responsive allegation on the part of Miss Bremer was, after opposition, admitted, which pleaded — 1. The death of the deceased, leaving property invested in her name as Fanny Allegri. 2. Her birth at Calcutta in 1795 ; her residence in England from an early age until the year 182'5, when she left England and never afterwards re- turned. 3. Her residence in Italy, and her marriage to an Italian named Allegri ; that she lived and coha- bited with him ; and that she and Allegri on all VOL. I. 194 CASES DETERMINED IN THE 1856. March 31st. February 1st, 5th, 19th. August 16tb. BSEMER V, Freeman and Bremer. occasions, save as regards her family and friends in England, owned and acknowledged each other as husband and wife, until the death of AUegri, six months after the marriage ; that by reason of the marriage having been clandestine and kept secret from the knowledge of her father, &c., neither the exact time or place of the marriage and cohabita- tion can be ascertained; and that the deceased throughout her subsequent life referred to her mar- riage, and the death of her husband. 4. Pleaded a letter from the deceased to J. G. Bremer, dated 1st of October, 1840, in which oc- curred the passage, " I had requested my dear Mrs. C. to write to inform you of my great calamity* which had befallen me, and to tell you also of my change of name, and that I have been a widow more than ten years; but my loved sister never would acknowledge my marriage, because I did not ask her father's consent. I very much regret not having done so, and I own I did wrong." 5. That the deceased, after the death of her father (which occurred in April, 1834), was known and passed by the name of Allegri, was described in legal documents, prepared by and in the possession of T. Freeman, as Fanny Allegri, widow, and was so described by the said T. Freeman in two letters written by him to J. G. Bremer and S. C.Bremer, respectively, on the 7th and 8th of March, 1848. 6. That on the death of General Calcraft, in 1834, the sister of the deceased left England and resided with the deceased at different places on the Continent, until the summer of 1838, when they, * Tleferring to the recent death of her sister. PEEEOGATlVE COURT Ot CANTERBURY. 195 Bremer V, Freeman and Bremeh. the two sisters, took up their final and permanent 1856. abode in Paris. March sut. 7. Pleaded various letters. ^ItMmi!'' 8. Occupation of apartments in Paris under August i6th. leases ; and the renewal of the last lease for three years, from the 1st of July, 1851. 9. Permanent residence at one house in Paris. 10. Declarations of intention to remain perma- nently in France, and never return to England ; purchase of a vault in perpetuity on her sister's death, and declarations of her own intention to be buried in that vault with her sister. 11. 12. Pleaded various letters. 13. Description of deceased as " Fanny Allegri, born Calcraft, widow," in an act of notoriety on her deceased, executed by T. Freeman and another, at the instance and with the concurrence of D. A. Freeman, in July, 1853, and forwarded for regis- tration in Paris, by D. A. Freeman. 14, 15, 16. Exhibits. 17. That by reason of the premises the deceased was, at the dates of her will and death, domiciled in France ; and that no paper was valid as her will unless executed according to French law. 18. Set out the French law, and pleaded that such law applied equally to natural-born subjects of France as to foreigners who have become domiciled in France by fixing their residence with an inten- tion of permanently remaining.. 19. That the paper propounded was not executed according to French law. The witnesses produced upon this allegation were cross-examined by Mr. Bremer; and application was made to the Court, on behalf of Mr. Freeman, to o2 196 CASES DETERMINED IN THE 1856. March Sist. February lat, 5th, igth. Auguvt 16th. Rreuer V, Fhebmaji and Bkkmeb. direct the evidence given upon such cross-examina- tion to be struck out on the ground that the •will was in reality opposed by Mr. Bremer, who was in fact the party in the cause though using his sister's name, and that to allow him to interrogate her witnesses was in fact allowing him to interrogate his own witnesses. This application was rejected by Sir John Dodson. A further allegation was brought in on behalf of Mr. D. A. Freeman, pleading — 1. That the deceased left England in 1827 and not in 1825. 2. That the deceased was never married to AUegri. 3. Kesidence abroad. 4. That during her residence in Paris she con- stantly expressed her intention of leaving as soon as her health would allow her, and that she had very trifling property in Paris. 5. Her expressions of dislike to climate, habits, &c., of France. 6. Various particulars as to deceased's mode of dealing with her property during her life as tending to show that she considered England as her home. 7. Exhibits. 8. That the deceased was not by reason of the premises ever lawfully domiciled in France so as to have acquired a domicil of succession according to the laws of that country. 9. That by the laws of France the succession to the personalty of all deceased persons, whether tes- tamentary, or ab intestato, is dependent upon, and is governed and regulated by, the law of the place of , the domicil of the deceased. PEEEOGATIVE COURT OJ? CANTEKBURY. 197 10. That the laws of France in force at the time 1856. of the death of the deceased with respect to the March sist. validity of testaments, do not apply equally to ^"sfh^'iotl,*.'' natural born subjects of France as to foreigners Auguat loth. who have become domiciled there by fixing their bkemek residence with an intention of permanently re- fhebman maining, but that the succession, whether testa- bhemer. meutary, or ah intestato, of a foreigner, who was neither naturalized nor authorized to establish his domicil in France, is governed by the law of his own country. 11. That although S. C. Bremer and J. G. Bremer are appearing in this suit by separate proctors, yet that the suit, so far as concerns the said S. C. Bremer, has been and is in fact and in truth conducted by J. C. Bremer, who is acting on her behalf herein^ that he has throughout communicated with her legal advisers, and has given them every assistance in his power, and that he is desirous of securing and has throughout so acted as to secure her success and to oppose and prevent the success of D. A. Freeman. 12, 13. Exhibits. 14. That the materials of the allegation given in on behalf of S. C. Bremer were chiefly furnished to her or her advisers by her brother, J. G. Bremer, or some one acting on his behalf ; that he has sup- plied the money necessary for defraying her ex- penses, and is responsible to the proctor of S. C. Bremer for the same. 15. That the interrogatories administered by J. G. Bremer to the witnesses produced upon the allegation of S. C Bremer, were prepared after con- ference and consultation with the legal advisers in 198 CASES DETERMINED IN THE 1856. March 3Ist. February 1st, 5th, igth. August 16th. BSEAIER V, Freeman and Bbbmes. this suit of S. C. Bremer ; that the French advocate who acted on behalf of J. G. Bremer, in preparing the said interrogatories, had previously assisted S. C. Bremer in collecting evidence, and also by seeing, conversing with, and interpreting on behalf of the witnesses produced by S. C Bremer, upon the allegation. 16. That J. G. Bremer has frequently declared and admitted that his interest in opposing the wUl propounded is identical with that of his sister, S. C. Bremer ; and that he hoped she would suc- ceed, and was doing all he could to help her. The admission of this allegation, which was ad- mitted as above after reformation, was opposed as originally brought in on behalf of Miss Bremer, 3.nd also Mr. Bremer. Sir John Dodson, however, after hearing Miss Bremer's counsel, refused to hear Mr. Bremer's counsel in opposition to the admission. Upon these allegations, besides the several wit- nesses to facts, were examined eight members of the French bar, Messrs. Frignet, Senard, and Paillet, on the part of Miss Bremer ; and Messrs. Marie, Blanchet, C. de Lisle, Hebert, and Vatismesnil, for Mr. Freeman, Sir J. D. Harding, Q.A., and PKilUmore, for Mr. Freeman. — The domicil of origin is retained till a fresh domicU is acquired by fact and intention ; the mere act of residence will not effect a change of domi- cil, without the intention of permanent residence : Munroe v. Douglas, 5 Madd. 379 ; Somerville v. PREROGATIVE COURT OS CANTERBURY. 199 Fbeeuan and BSEUBB. Somerville, 5 Ves. 759 ; Munro v. Munro, 7 CI. & 1856. Fin. 842 ; De Bonneval v. De Bonneval, 1 Curt. Marcii aist. 856 ; Attorney-General v. Dunn, 6 M. & W. 527 ; ^t'Ciytht'' Craigie v. Lewin, 3 Curt. 435 ; Stanley v. Bernes, Auguat icth. 3 Hagg. 373. In the present case the deceased had, brembk neither in fact nor by intention, abandoned her original domicil, whether Anglo-Indian or English, and acquired a French domicil when she made the will. The will was valid therefore when executed ; and even admitting that she subsequently acquired a French domicil, that would not revoke the will. If the marriage of the deceased was meant to be relied on to show the change of domicil, the op- posers of the will should have proved the mar- riage, which they have not done ; for the bare passing by the description of Madame Allegri, widow, is no proof of the marriage. Again : Sup- posing the deceased to have been domiciled in France, then the case is met by Collier v. Rivaz, 2 Curt. 858, which is directly in point, and shows that under the Code Civil the wiU of a British- born subject domiciled where the code is in force, is valid, if executed according to the law of England, But this deceased was not, according to the evi- dence of the French lawyers in the case, domiciled in France. She had obtained no authorization from the Government to establish her domicil there ; and that authorization, they depose, is an indispensable condition, without which the foreigner is considered by the French law as a mere resident. Nor does the case rest upon the bare evidence of these French advocates, for their opinions are supported by seve- ral French cases ; and the text writers also state that under the Code Civil the foreigner has no 200 CASES DETERMINED IN THE 1856. means of acquiring a French domicil other than by March 3i9t. the authority of the Government (Demangeat. Hist. 6th/i9tii! ' de la Condition Civile des Etrangers en France, 369 ; Au,,^oth. j)g„^(,lomhe Cours de Code Civil, vol. I., b. 1, tit. 1, Bremer g]j. 3^ ^^^ ^g ^j^g deceased had not obtained the I'KEEMAN authorization of the Government, it follows that she and , , , bkemer. was not domiciled in France, and consequently the will is valid, being executed according to the law of England, the domicil of the testatrix. Jenner and Spinks, for Miss Bremer. — One con- tention in this case is, that a residence fixed and permanent for fifteen years in one country, and an absence from the country of original or subsequently- acquired domicil, coupled with expressed intentions of never returning to the latter, are not sufficient to constitute a domicil in the places of such continued residence. Every case cited on the other side from an English Court, on domicil, negatives that con- tention. Apart, then, from the question of mar- riage, and by the law of nations, the deceased was domiciled in France at the time of her death.; and this reflects back upon the time when the will was executed, for she never moved from Paris in the interval. But how stands the case upon the mar- riage of the deceased ? If this were a case in which a question of legitimacy or of inheritance depended on the proof of marriage, possibly the marriage could not be deemed established; but here the mar- riage is pleaded, but as a circumstance in the case showing how completely the deceased had given up her English domicil when she assumed a foreign name. But is, in a question of marriage, reputation aot to be considered? She was treated and de- PREEOGATIVE COURT OF CANTEBBURY. 201 Skemer V. Freeman and Bkeuer. scribed by all persons, including her solicitor, as a 1856. widow, in letters, in legal documents, as mortgages March sui. and conveyances— in the very will before the Court '^ti'C'imh'' — in the jurat and affidavit of Mr. D. A, Freeman, Augusuetii. when he proved the will. Five French advocates have been examined on the part of Mr. Freeman; three on the part of Miss Bremer; and, upon the point whether a domidl can be acquired in France by a foreigner without authorization, they are totally opposed ; it is clear, then, that from the opinion of these learned persons the Court can derive no great assistance, nor arrive at any satisfactory conclusion. But there were cases cited from the French Tri- bunals, and these, it is said, went to determine the question. These cases, however, are not easily reconciled with each other ; and when the French advocates were pressed on interrogatory with the conflict between their own cases, they answer, "That there are many decisions of a contrary nature, but they do not place much reliance upon them ;" or, " That they were cases in which French interests were concerned, in opposition to the interests of foreigners ;" or, " That those decrees v.'ere made in special cases, and come under the practical adage, that decrees are good for those who obtain them." There is, however, one case upon which this Court can rely (Lanenvillev Anderson, 17 Jur. 511), and since affirmed by the Judicial Committee. There the deceased had no authorization of the French Government ; the point was directly raised in the case ; and yet this Court and the Court of Appeal both pronounced for the French domicil, and the will was referred to the French tribunals to pronounce upon. 202 CASES DBTEEMINED Of THE 1856. March 31 st. February 1st, 5th, ]9tb. August 16th. Bremer V. Freeman and Bremer, Deane, for Mr. J. G. Bremer, after submitting tliat for testamentary purposes domicil might be acquired by a foreigner in France witliout au- thorization, and that the deceased was so domiciled, referred to the general practice in cases of co- plaintiffs and co-defendants, and cited Wood and others y. Goodlake and others ^ 2 Curt. 82; Dyce Somhre^s case, ante, p. 22 ; and Hyde v. Cates and Hyde, not reported, but decided in this court in June, 1853, in which last case the will of a single woman without a parent was opposed by a niece, and also by a brother, who had originally joined in taking out probate as one of the executors. The rule of practice, therefore, justified the course pursued by Mr. Bremer. At the close of the argument, Sir John Dodson directed that Mr. Freeman, the drawer of the will, should be produced and examined vivd voce. This gentleman deposed to the deceased having stated to him that she was not married, but that she would not use her maiden name. He proved the instruc- tions for the will. The French cases cited throughout the argument were, — Lynch's Case, reported in Sirey, 1851, of which the abstract is, " La hi qui regit la succession d^un etranger decede en France, quant aux meubles qui sont situes dans ce pays, est la hi du pays du defunt, alors surtout que celui-ei n'avait pas un domicile legal en France, et quiln'a ancun heritier Franqais. (Cod. Civ. 3, Z. 14 JuilL, 1819.) PREROGATIVE COURT OF CANTERBURY. 203 " En consequence, les tribunaux Franqais sont in- competens pour connattre d'une demande en liquida- tion et partage d^une telle succession. '''•Par suite encore^ un acte dmane du tribunal etranger competent, qui autorise Vun des Mriiiers h administrer provisoirement la succession du difunt, doit s^appliquer aux mevbles sitms en France, quand m^me ils ne seraint pas specialement designe's dans cet acte ; pourvu, Men entendu que I'acte dont il s^agit ne contienne rien de contraire aux principes du droit Franqais. "Ainsi, si cet acte attribice a Vheritier administrateur le pouvoir de disposer des hiens du dSfunt, les autres heritiers nepeuvent demander aux tribunaux Franqais V autorisation de faire proceder eux-mimes a la vente des meubles situes en France. " Et si le tribunal etranger a assujetti VMritier ad- ministrateur a fournir caution pour sa gestion des Mens situes a V etranger, il convient que les tribunaux Franqais exigent aussi de lui une caution a I'egard des meubles situes en France." 1856. March Slat. February 1st, 6th, 19th. August 16th. BREMEn V. Pheeman and Bremeb. Thornton v. Curling, Dalloz' Reports, 1827 : — " Doit Stre rSpute'e ouverte en France la succession d'un Stranger qui y est mort depuis la hi du 14: Juillet, 1819, aprh avoir obtenu du gouvernement la jouissance des droits civils et y avoir transfere son domicile, conformdment a Vautorisation qvHil avait ob- tenue, et cela, encore Men que cet etranger ne serait pas naturalise Franqais. Fm, consequence, c^est devant le tribunal dans le ressort duquel ilest mort que doivent Stre portees les contestations qui s'Slevent entre le fils du defunt et le legataire etranger qu'il a institue, au sujet de sa succession, et, par exemple, sur la validite 204 CASES DETERMINED IN THE 1856. March Slst. February Ist, 5tli, IQth. August 16th. Bresibr V, Freeman and Bremer. ou invalidite du testament quHl a laisse; le legataire demanderait en vain le renvoi devant les juges du pays du testateur. (C. C, 13, 110/ C. pr., 59.)" Carliek D'Abaunza, Sirey's Reports, 1842 : — " 1° Les consuls etrangers ne jouissent pas en France des prerogatives et immunites attachees a la qualite d'agens diplomatiques ; en consequence^ ils ne sont pas affranchis de la contrainte par corps, ni de la saisie conservatoire de lews meubles, b, raison des dettes qiTiis ont contractees. — Res seulement par le trib. de 1" instance, " Dans tous les cas, ils ne pourraient pretendre h CsS prerogatives qu'autant qu'ils auraient obtenu Z'exe- quatur du Gouvernement Franqais. "2° La residence prolongee d'un etranger en France et Vetablissement par mariage quHl y a forme, n* equi- valent pas pour lui a un domicile, susceptible de Vaffranchir de la contrainte par corps, a raison des condamnations r endues contre lui. (Loi du 17 Avril, 1832, art. 14.) " Ces circonstances ne sujisent pas davantage pour Vaffranchir de la saisie conservatoire de ses meubles, a laquelle est soumis tout debiteur forain. {Cod. proc. 822.)" Breul's Case, Gazette des Tribunaux, 21st July, 1852 :— '■'• L article 13 rfw Code Napoleon, qui dit que V etranger admispar le Gouvernement Franqais a etablir son domicile en France, y jouit de toits les droits civils, rHa pas eu pour objet de determiner les conditions que devait remplir un etranger pour acquJrir un domicile en France. " L etranger qui a fixe depuis pres de trente ans PREROGATIVE COURT OF CANTERBURY. 205 son habitation rMle en France^ qui ne Va pas quittSe 1856. pendant cet intervalle de temps, reunit tons les condi- March 31 st. tions legates et constitutives du domicile. C'esi done ''^s^h^igth.' aux tribunaux Franqais que doivent Stre soumises les Angust leth. questions relatives a la succession de cet Stranger mort brembk en France.^' Lloyd's Case, Sirey's Eeports, 1849 : — "Ze mari, etranger de naissance, mais domicilii depuis longtemps en France,, qui se marie sans contrat dans ce pays, avec une Franqaise, doit etre rSpute avoir consenti a la communaute Ugale etablie par la hi Franqaise, et cela, encore que le fait de son domicile n' ait pas ete accompagne de V autorisation du gouverne- ment necessaire a V etranger pour etablir son domicile en France; cette autorisation, requise pour que Ve- tranger jouisse de tovs les droits civils Franqais, n^est point nScessaire'pour I'etablissement de la communaute, qui est purement du droit des gens. {Cod. Civ. 13 et 1393)." De Veine v. Routlbbge, Sirey's Eeports, 1852 : — " 1°. La possession d'etat, a dSfaut d'acte de nais-< sance, est un element esseniiel de la preuve de la filiation legitime. " Sp^cialement : — LorsquOl ria pas M tenu de re- gistres de VStat civil dans le lieu et a Vepoque de la naissance dune personne {une fille) qui se dit enfant legitime dun homme qui aurait eti mariS, il ne saurait Stre pleinement suppleS a son acte de naissance par des declarations du pritendu pere, consignees dans des actes authentiques dresses pour le mariage de Venfant ri- clamant, et portant qu!il est ne en legitime mariage du declarant et de son epouse decMee . . . , dlors que cette V, Fbeeman and Bremer. 206 CASES DETERMINEB IN THE 1856. March Slst. February 1st, 5th, 19th. August 16th. Bremeb V. Freeman and Bremer. declaration rCest pas eorrdboree par une possession d'etat conforme, suffisamment caracterisee. {Cod. Nap. 319.) " 2°. La declaration faite dans un acte authentique par un individu, qu'il se reconnait le pere legitime de tel enfant denommS, insuffisante a elle seule pour etablir une telle filiation legitime, peut au mains valoir comme acte de reconnaissance d' enfant naturel, ( Cod. Nap. 334.) " Et, bien qu'une telle reconnaissance f&t faite par un Stranger au profit d^une autre personne pareillement eirangere, et qu'elle fAt dans le principe inu£le et sans effet legal h cause de la legislation personnelle des deux parties, qui ne donnait aw,un droit aux enfans naturels a Vegard de leurs parens, si ulterieurement Venfant a acquis la qualiti de Franqais, il peut invoquer cette re- connaissance et reclamer le benefice qiHy attache la hi Franqaise. " 3°. La succession d'un Stranger, quant aux meubles situes en France, est regie par la hi Franqaise, dlors que le dSfunt avait son domicile legal en France, et que sa succession est reclamee par un heritier Franqais centre des legataires universels etrangers. (Cod. Nap. 3, L. 14 JuiU., 1849.) " 4°. Uh testament olographe fait par un Stranger en France, et dont VexScution est demandSe devant les tri- bunaux Franqais, ne peut etre dSclarSe valable qu^autant quHl rSunit toutes les conditions de formes reconnues essentielles dans la ISgislation Franqaise, et quel que soit h cet Sgard VStat de la ISgislation du pays auquel appartient le testateur ; en consSquence, un tel testa- ment est nul sHl n^ est pas Scrit en entier de la main du testateur, ou s'il n'est pas date'. {Cod. Nap. 970, 999.) PREROGATIVE COURT OF CANTERBURY. 207 " On ne pent voir un testament olographe valable 1856. dans une lettre qui ne contient pas formellement les March aut. dispositions du testateur, mais qui annonce seulement '^'sth^ioth.'' d'une maniere ginerale et sommaire ses volontes, en se Aug ust le th. referant au surplus pour les details a un autre acte bremeb testamentaire. {Cod. Nap. 970.)" Onslow v. Onslow, Dalloz' Eeports, 1836 : — " 1! Stranger qui se trouvait, lors de la promulgation de la hi du 30 Avril, 1790, Stabli en France, y avait un domicile continu depuis cinq ans, et y avait Spousi une Franqaise, etait naturalist de plein droit, sans quHl fut tenu de preter le serment ciinqu^. Ce serment n^ etait eosigS, par cette loi, de Vetranger qu^elle naturali- sait, que pour itre admis aux avantages de la qualite de citoyen actif. '■'■ Les lois posterieures a celle du 30 Avril, 1790, et notamment la constitution de 1791, qui exigeaient des etrangers la condition du serment, riont dispose que pour Vavenir, et rHontpu enlever la qualite de Franqais a Vetranger qui, aux termes de la loi de 1790, avait ete naturalise sans prater serment. " Uh etatpeut, en vertu de son droit de souverainete, deferer a un etranger qui a fixe sa residence dans son territoire, la qualiti de regnicole, sans le consentement ou la volonte de celui a qui une pareille qualite est attribute. " L' etranger qui ne veut pas accepter la qualite de regnicole a lui deferSe par Vetat sur le territoire duquel il est venu s'etablir, doit quitter le territoire de cet etat. S^il continue d^y demeurer, il est cense s'^e soumis a la loi qui lui attribue de nouveaux droits en lui donnant une novelle qualitS. " La simple mesure d'ordre public, par laquelle il a Fbeeman and BSBMEB. 208 CASES DETEEMINED ITS THE 1856. March 31st. February Ist, 5tb,19tb. August 16th. liREMISIt V. Fkeeuan and Bremer. ^e enjoint a un etranper naturdlisS Franqais de sortir de France, n'a j)u avoir pour effet d'enlever a cet etranger la qualite de Franqais que la hi lui avait con- Jeree. ^'- n etranger qui, avant le Code Civil, a fixe sa resi- dence en France, est manifeste par plusieurs actes Vin- tention d^y rester a perpetuelle demeure, a acquis irre- vocablemeni un domicile legal en France, et ce, noneb- stant toutes lois posterieures qui auraient exigi d'autres conditions. 11 en est de mSme depuis la promulgation du code civil, encore Men que Tetrangern'ait pas ohtenu V autorisation du gouvernement. (C. Civ. 13.) " La succession d'un etranger naturalise' Franqais, qui s'est ouverte en France ou il avait son domicile legal, est regie par la hi Franqaise, tant a Vegard des liens meuhles que des immeubhs situes en France, dont la succession se compose. " On doit considerer comme meuhh faisanf partie de la succession d'un etranger domidlie en France, et soumis,par consequent, a la loi Franqaise, leprix dHm- meubles situh en pays etranger, et specialement, en Angleterre, hrsquil a M page par Vacquereur trans- porte et place en France. C'est en vain qu-un des he'ritiers pretendrait avoir le droit de reclamer ce prix comme proprietaire, par suite da privilege du statu reel de VAngkterre." Thomas Gil de Olivarez's Case, Le Droit, 11th October, 1854 :— " 1. Toute succession est regie, quant aux immeubles, par la loi de la situation, et quant aux meubles, par celle du domicile. {Art. 3 du Code Napoleon.) " Spidalement, la succession mobiliere d'un itranger dkedi en France doit kre partagie entre les divers PEEROGATIVE COURT OF CAXTKREURY. 20i) coheritiers selon les proportions etahlies par la hi Fran- qaise, si le defunt avait son domicile en France. \^5Q. "2. n acquisition par un Stranqer d'un domicile en March aiat. ■n • ir -I T T, • • • A February l.-t, Jb ranee est maependante de I autorisation qui peut etre 5th, lath. accordee aux Strangers par le gouvernement d'y fixer "^"f leur residence. Le domicile tient au droit des gens ; il Bremer est toujours determine par le lieu du principal etahlisse- fkeeman ment. bremer. ''3. Les droits et actions purement mobiliers^ bien que recueillis en France, doivent, comme torn les autres meubles, itre partages d'apres la hi da domicile de Vetranger. " 11 rHy a lieu four les coheritiers Franqais d'invoquer r application de'Vart. 2 de la hi rfw 14 Juillet, 1819, s'il riy a pas dans la succession d'immeubles situes en France, surtout qaand il s'agit de la succession d'un Espagnol." Querieux v. Riencourt, 1 Sirey, 109; Duke of D'Aremberg's case, 1 Dalloz, 382 ; De Laurencin v. Liot, 1 Sirey, 118 ; The Harmony, 2 Robins. 322 ; Dalrymple v. Dalrymple, 2 Cons. Rep. 54; Duchess of Kingston's case, 2 Add. 21; Whicker v. Hume, 15 Jur. 567. After the argument the Duke of Mecklenbourg's CASE was sent to the Court. The abstract of the case, as determined by the Tribunal Civil de la Seine, 1" ch., was, " La succession de Vetranger doit ilre considerSe comme etant ouverie en France, lorsqu'il est constant en fait que le decide avait dans ce pays son principal etablissement, et ce alors m^me quHl n'aurait pas ohtenu du Gouvernement Franqais la jouissance des droits civils. VOL. I. P 210 CASES DEI ERMINE!) IN THE 1856. March 31st. February Ist, .'Vth, 19th. August 16th. Buemer V. Freeman and Bremer. "Par suite les tribunaux Franqais sont sevls competens pour connaitre des difficultes relatives a I'ouverture de cetie succession.'" — Le Droit, 16 Mars, 1856. From tMs decree there was an appeal to the Cour Imperiale de Paris, I" ch., and the abstract of the decree of that Court was, according to the report in the Gazette des Tribunaux, 27 Juillet, 1856, "ia succession de V Stranger, decide en France, sans avoir ete autorise a y etablir son domicile, etay jouer des droits civils, est regie par la loi de son domi- cile d'origine, sHla manifeste par des actes expires V in- tention de conserver sa nationality et Fesprit de retour dans son pays natal, si ses heritiers sont Strangers et si les immeuhles dependant de la succession sont situe's hors de V empire Franqais. " Le long sejour de cet Stranger en France, et ses importantes spSculations dans des entreprises fondSes en France n'entrainent pas sa renonciation au domi- cile d'origine." And accprding to the report in Le Droit, of the same date, " Les tribunaux Franqais sont incompStents pour siatuer sur les difficultes relatives a Vouverture de la succession d'un Stranger dScSdS en France, lorsque les hSritiers sont Strangers, que les immeuhles sont situSs hors de France, lorsquHl est constant, en fait, que le dSfunt a conservS avec le gou/vernement dont il Stait sujet les rapports qu'il jugeait les plus propres a maintenir sa nationalitS. "Fn vain opposerait-on que depuis longiemps il liahitait la France et qu'il avait pris part a des spScu- lations de diverse nature. PREROGATIVE COURT OF CANTERBURY. 21 J " Ces circonstances ne sauraient entrainer la renon- 1856. ciation au domicile d'originey* m^^^^ — February Ist, ^ 6th, 19tli. Judgment. August leth. Sir John Dodson. b^^er ^ After stating the contents of the several allega- fkeeman tions. From these averments by Miss Bremer bbmer. on the one side, and on the other by Mr. Freeman, the executor, it is quite obvious that there are two principal questions for the decision of the Court. First, in what country was the deceased domiciled at the time of making the will and at the time of her death ; and, secondly, what was the nature of that domieil, and the legal eifect thereof, upon her testamentary acts. The first point for consideration then is, in what country had this deceased lady her legal domieil ? It is admitted on all sides that she was born in the East Indies in 1795, where her father was then serving as a military officer in the service of the East India Company. There can, therefore, be no doubt that her domieil of origin was Anglo-Indian. In 1805, she, together with her sister and mother, came to England, where her father afterwards came, and she resided with him and the family until some time in 1825. It is, therefore, I apprehend, equally clear, that, down to that period of time. * It would seem that the Court of Appeal reversed the sentence, npon the ground that the deceased duke had by express acts manifested his intention of returning to his native country, and had maintained such relations with the government of his own country as proved his intention to preserve his original domieil. The fact of his not being naturalized or authorized was a proof of his intention to adhere to bis original domieil, rather than a legal defect in his French domieil. p2 212 CASES DKTERjriNTED IN THE 18/56. March 31st. February 1st, 5th, 19th. August 16th. Bhemeb V. Freeman and Bremeb. namely, 1825, her domicil was, to all intents and purposes, English. Her father had sustained her ; he had personal property as well as real property; and it was the sole abode of himself, his wife, and and two children down to 1825, when this lady quitted England, her mother having died, and went to the continent with Miss Pickar, who had been her governess. She proceeds then to Rome and to other parts of Italy; and it is alleged, that there is not any evidence to show in what particular state of Italy she took up her abode ; nothing to show that she fixed her domicil or continued her resi- dence within the dominions of any particular state or government in that part of Europe. She was a mere traveller, going wherever curiosity, or plea- sure, or any other motive might induce her. If the matter had rested here there would have been no pretence for asserting that the lady had cast off her English domicil, and acquired an Italian domicil. There is, however, a circumstance of very grave importance averred by Miss Bremer in her allegation, namely, that this lady whilst in Italy intermarried with an Italian gentleman, named AUegri. The fact thus averred, if supported by adequate proof, would, in the opinion of the Court, be sufficient effectually to change the domicil of the deceased, to destroy the English and establish the Italian ; for the domicil of the wife would, by necessary implication, follow the domicil of her husband. Having married with an Italian in Italy, she would immediately acquire the Italian domicil. But how stands the proof in respect of the alleged marriage? Where was it celebrated? Was it at Rome or Naples or Genoa, or in what other town PBKROTJATIVE COUET OF CANTERBURY. 213 Bremer V. Freeman and Bremisk. or place of the Italian States ? There is no evidence 1856. of it on either side. Was any entry made in the March sist. parish books of any place there or elsewhere? ''ttTimh'' Who performed the ceremony, or was present on August i6th. the occasion? Was there any acknowledgment or repute ? Upon all these matters there .is an entire absence of proof. It is true that the deceased has asserted it, both orally and in writing ; but surely such assertions, unsupported by other testimony, can hardly be deemed satisfactory or conclusive. But how stands the matter upon the representation of the deceased herself? The marriage is said to have taken place in 1830, but it was not announced to her relations for many years afterwards, I think not till the year 1840 or 1841. It is said that she concealed it, because she had not her father's con- sent j but her father died in 1835, and the marriage, in point of fact, was never declared till after the death of the sister in the year 1840. It is true that in 1840, upon the death of her sister, she used the name of Allegri, but she did not do so till after the death of her sister. The sister always denied her belief in the truth of any such marriage ; she never would admit it. In 1840 the deceased as- sumed that name in Paris. The first avowal she makes of it to any of her friends or relations in England is to be found in a letter which is before the Court among other documents, and addressed to Mr. James G. Bremer in these terms, "Boulevard des Capucines, No. 17, Thursday, 1st October, 1840. My dear cousin, I had requested my dear good Mxs. Connell to write to inform you of the great calamity which had befallen me, and I cannot imagine why she neglected to do so, and to tell you 214 CASES DETERMINED IN THE 1856. March Slst. February Ist, 5tli, 19ib. August 16lh. Bremer V. Freeman and Bremer. also of my change of name and state. I have been a widow more than ten years, but my loved sister never would acknowledge my marriage because I did not ask her father's consent. I very much regret noi having done so, and I own I did wrong. My loved sister. had been ill for several months," and so forth. Then she states — it is, perhaps, better to read the whole, for there is some reference to a return to England, the only reference I can find — " No words can express how wretched I am, for I loved her mors as my child than my sister. I have not any intention of returning to England" — this is a declaration which may, perhaps, have some effect when we come to consider the question of domicil, or the intention of returning to England — "I shall leave France when I can." Leaving France when she could looks as if she had not taken up her abode there. There is in the testi- mony of some of the witnesses an explanation of what she means by leaving France — that she did not mean to leave it permanently, so as to give up her abode in that country, but only for the temporary purpose of travelling. " But that does not depend upon me, but upon the arrangement of the property which she has left me, which is of course in the hands of her executor. Your letter, dated the 23d ult., I only received this morning. I hope you will not accuse me of negligence." It concludes in a formal way, nothing having any bearing at all on the present question. Therefore, it is clear from this, though she says she was married as early as the year 1830, that her sister never would believe she was married, or at least never would admit the marriage. PJIEUOGATIVE COURT OF CANTEKBUUY. 215 From that time, from the time of the death of 1 856. the sister in Paris, she assumes the name of Allegri; March sut. and we find in. the very commencement of the will ^ttiiru„h'' itself she describes herself as Fanny Allegri nee August luni. Calcraft, and at the termination of the will her bhbmur signature is Fanny Allegri nee Calcraft. From fhekman that time she appears to have passed by the name bkemeu. of Allegri in Paris, and to have been known almost entirely by that name. Upon this evidence, even so far as it goes, I think the Court could not come to the conclusion that this lady had been married to this gentleman. Signer Allegri, in Italy, or that there was any contract of marriage between them which would have changed her domicil. The sister does not seem to have given credit to it ; and if she had any connexion with Signer Allegri, if she lived with him at all, it does not appear there is any evidence that she married him. Prcetexit nomine culpam. She may have called him her husband, though there is uo evidence of their living as husband and wife, or pretending so to be. But in point of fact there is evidence in this case to show that the deceased herself admitted she never had been married to Signer Allegri. After the case had been argued, I thought it right and convenient that Mr. Freeman, the solicitor, who drew the will, and who seems to have had an inti- mate knowledge of many of the proceedings of the family, should be examined, and the Court, availing itself of the power which it has under the Act of Parliament, thought proper to have Mr. Freeman called before it, and have him examined vivd voce in this Court. In the course of that examination he was asked, amongst other things, with respect to the 216 CASES DETEUJIINED IN THE 1856. marriase of Madame Allegri, Slarch 3Ut. Februai'y 1st, 5th, I9tli, Aujiuft 16tli. BBE\fER V. Freeman and Bremek. whether she was married, or whether she was not. His examination upon the point is this : He is asked, " You called the deceased Madame Allegri just this moment; was she a married woman or a spinster, or what was she?" — The answer to that is, "I should state to you, when I first acted for her, her property at Millbrook, near Southampton, had been sold in the lifetime of Miss Emily Calcraft, of whose will I was the sole executor." Q. " What was the date of that sale ?" — A. " It was, I should say, somewhere about midsummer, or the latter part of the year 1 840 ; and it remained incomplete. I was not acting at that sale Messrs. Barney were the solicitors; but in consequence of the death of Miss Calcraft, I had to communicate that event to them, and it occasioned my being joined in the assignment as the executor, and upon that occasion the draft was sent to me. I altered it from Fanny Calcraft to Fanny Allegri, widow, it having been stated to me, on the occasion of the will being sent over, that she was a widow." Q. "It having been stated by whom?" — A. "By Mr. Connell, in a letter he wrote me on the occasion of the death, sending me a copy of Miss Calcraft's will." Q. " Is that all you know, the only reason for describing her as a widow ?" — A. " That was all I knew at that time. I had never heard she had that name till I got that letter." Q. " In point of fact, that is all you know about it ?" — A. " The purchaser here desired to have the deed executed before some witnesses resident in England, and that occa- sioned me to go to Paris with my son, and then I inquired of her where Sign or Allegri was buried, as. I thought that evidence might be wanted. She PEEKOGATIVE COURT OF CANTERBURY. 217 appeared very much agitated, and said it could not 1856. be necessary — it was quite unnecessary; slie would Maichsist. not listen in fact to there being anything of that sort "atCio/h.'' required ; and the consequence was, that she exe- Augusueth. cuted the deed, and Heft her that day." Q. "How b«bmer did she execute it — in what name?" — A. "As freeman Fanny AUegri; and the next day she sent for me, brbmer. and she then said she had had no rest, that she was not married." Q. " Do you know at all where Signer AUegri died ?" The answer is, " I was never able to learn. I wished her to take the name of Calcraft, but that she was not willing to do ; and I never could learn where Signer AUegri was, whether he was living or dead, further than she represented, when her sister joined her, she heard he was dying in Russia. Whether that was the case or not I had never any means of ascertaining." But here it is, when he pressed her, when there was a necessity for executing these deeds he pressed her to make use of the name of Calcraft as a spinster and an unmarried person. He then pressed her to know where Signor AUegri was buried ; he thought the evidence might be wanted; she was greatly agitated on the occasion, and she insisted on executing the deed in the name of AUegri; she did so. The next morning she calls on him and states she has had a sleepless night — that she had not been married. Therefore I think there is quite an end of the Italian domicil ; for, in point of fact, upon her own confession — her own admission — she never was married to AUegri. The next question isj whether any other foreign domicil has been established ? I think it is quite clear there is no other foreign domicU, unless it be a domicil from residence in France, having quitted 218 CASES DETERMINED IN THE 1856. March SUt. February 1st, 6th, 19th. August 16th. Bremer V. Freemam and Bremek. Italy after the death of her father, and being joined by her sister, they went to reside at, Paris, and at Paris she continued to reside down to the period of her death. It is not pretended that the deceased was naturahsed in France, there is no averment of that kind J neither is it said that it was a domicil by the authorization of the French Government. It is a domicil de facto only, a domicil by the jus gentium; that is, she had taken up her abode meaning to remain there the rest of her life, and not to return to her former domicil in England. The question is, whether it was her fixed place of abode, and whether she had made up her mind to live there? Perhaps it may be convenient here just to restate a few of the facts. It seems that in 1834 General Calcraft, the father, died, leaving his fortune in equal shares to his two daughters. Emily, who was ap- pointed sole executrix, shortly after joined her sister on the continent, and they are said to have lived together at various places for short periods; and finally, in 1838, to have taken up their abode in Paris until the periods of their respective deaths, namely, Emily in 1840, and the deceased herself in April, 1853; that is, she lived at Paxis for the last fifteen years of her life. As to the length of time she lived there, it was justly observed by the Queen's advocate that time alone will not constitute a domicil, that a person may continue in one place for fifty or any greater number of years, and yet may always have an inten- tion to return to his or her own country ; that the oiiginal domicil is not considered and proved to have been abandoned merely from the length of time the party has resided in a foreign country. PREROGATIVE COURT OS CANTERBURY. 219 Freeman and BUEMER. Undoubtedly this is quite true. The long duration 1856. of residence in one place is a material ingredient, March siat. from which intention may be collected; but a person ^^st'hf^i^th!*' may live fifty years in a place and not acquire a Augus^ieth. domicil, for he may have had all the time an iaten- bremek tion to return to his own country. But the question here is, whether the deceased had not taken up her abode in France, and had no intention to return to England. The letter to Mr. Bremer, which I have already read, from the deceased declares she did not mean to return to England, and I cannot find any declaration of a contrary tendency in any part of the evidence before the Court. There she was not de- tained by business for any particular time, no neces- sary avocations kept her in France, she might have quitted it at any time she thought proper, but there she continued for fifteen years according to the evidence. Her sister having died, and having been buried there, she having purchased a grave in Pere la Chaise, she determined to be buried in the same grave, the same spot with her sister, and she meant to live and die at Paris. The question is, whether that is borne out by the evidence in the case. She had no other home; it was the sole place of her abode. When she was at Paris she must be considered as at home ; if she went away, had gone away from Paris, it must be considered that she had gone away from home ; and when she returned, that she came back to home. She did not, however, leave France, and therefore there is no necessity to make inquiries as to that. The evidence in this case is given by some of the persons who knew her about the year 1842 ; there is no witness who goes back further than that. She went to Paris in 1835 ; and the first witness who has 220 CASES DETEEMISED IN THE 1853. March SIst, February 1st, olh, 19th. August 16th. SSBMER V. Freeman and I3SEM£R. been examined on this point is a witness of the name of DervUle, who was acquainted with the deceased, and in fact waited and attended upon her, she being a nurse. This witness has been examined by Miss Bremer, the lady who opposes the will. She says, on the 8th article, " I do not know when Madame AUegri first came to Paris, or where she lived before she resided in the Boulevard des Capucines. The deceased hired her apartments there unfurnished, and furnished them with her own furniture." That is not taking merely temporary lodgings or ready- furnished lodgings ; she hired apartments according to the evidence of this witness, and they were fur- nished by herself. In point of fact they were fur- nished by herself and her sister originally. " At the time I knew the deceased her sister was dead, but she had a lady's maid living with her whom she discharged about seven years before her death. I do not know on what terms the deceased held the apartments she occupied in the Boulevard des Ca- pucines, but she told me she rented them on a lease of three, six, or nine years, and that it was renewed as the term expired." That is the declaration as coming from the deceased — not that she had hired apartments for a week or a month, but upon lease for three or six years, and so forth ; and they were renewed. It is clear from other evidence in the case that at the time of the death one of the leases was stiU subsisting, one of them had not expired. " Madame also told me that the last term would " expire in July last, and that she should not then " renew it, as the noise of the Boulevards annoyed "her.'' That is something like leaving these apart- ments; but she goes on, however, to state, " but that PREROGATIVE COURT OF CANTERBURY. 221 " she should remove to the Place Vend6me." The 1856. reason assigned by this witness for removing to the March sut. Place Vend6me would be, because it was more ^^Mrigth!'' quiet, but there is no change whatever of domicil August leth. — it is only a change from one part of Paris to an beemer adjacent part. freeman On the 10th article she sajs, " Madame AUegri bremek. " used to tell me latterly, that if she recovered her " health, she should travel, and go to Switzerland, "Italy, Savoy, or some other such place;" that is, if she recovered her health she would go to these places to travel, not that she would go to settle in any of these places. " And that she should take an " apartment in the Place yend6me in Paris, and " reside there six months out of the twelve. I used " to say to her sometimes, ' But, if you were to die, " madame, whilst you are travelling ?' ' Oh, then,' " she said, ' I should be brought back to Paris, and " buried near my sister, in the Cemetery of Pere la "Chaise.' She often spoke to me of England and " of the Brazils, but she never spoke to me of her " going back to England." What the meaning of speaking to her about Brazil is I cannot tell ; whether it is some mistake of the witness I do not know; but she declares she never spoke to her about going back to England. " She never spoke " to me either for or against England, but she told " me, ' I am like you, I have become a Eoman " Catholic' " So she had changed her religion after she left England, but she does not seem to have been a very strict Roman Catholic, for when she was dying, she declined to have a Roman Catho- lic pi-iest to attend on her. " She never said any- " thing to me against the climate or religion of 222 CASES DETERMINED IN THE 1856. March 31st. February 1st, 5th, 19th. August 16th. Bremer V. Freeman and Bremer. " England. The only thing she said about it was, " that persons were cleaner in England than in " France. She felt the loss of her sister very much, " and could not speak of her without tears. Only " four days before her death, " she says, " the " deceased, then referring to her lamentable state of "health, said, 'I have one consolation, I shall be " buried near my sister ;' and the deceased frequently " before that, and at long periods before that, " spoke of being buried near her sister." Again, as to quitting France, upon the 6th inter- rogatory she says, " She often, as I have before "deposed, spoke of travelling in Italy. She fre- " quently spoke of Italy as a country where she "should like to travel, but she always spoke of " spending six months of the year in France." She repeats, on a later interrogatory, that the deceased told her over and over again she should return to France for six months. Another witness of the name of Chapp6 deposes very much to the same eflfect. " The deceased "was living at No. 19, Boulevard des Capucines. "I never knew her to reside any where else from "the period of my first becoming acquainted with " her. She has several times told me she wished " to be buried near her sister, or alongside of her. " She constantly spoke to me in that way during her " last illness, and on the very last night of her life. " She did not see Maillochon during her last illness." Maillochon was a person who was employed to take care of the grave of the sister. It appears that she was in the habit of paying Maillochon a trifle annually or periodically for taking care of the sister's grave. Upon the 6th interrogatory, she PREROGATIVE COURT OF CANTERBURY. 223 says, " I never heard the deceased express any 18 56. "intention of returning to England. I never March sut. " heard her speak on subjects of that description. ^'tfTimh'*' " I never heard her say that she preferred France August leth. " to England. She never spoke to me about Eng- bremer " land, or anything connected with that country." freeman There are one or two other witnesses who depose BarMEH. very much to the same effect, but there is nothing opposed to them, so it really would be a waste of time to go through the testimony of those persons. The case comes to this, that the deceased lodged for the last fifteen years of her life — that she herself furnished the apartments, in Paris, that she never quitted them, that she declared she should never return to England. She writes to her relation, Mr. Bremer, that she should never return to Eng- land. Though she spoke of leaving Paris, yet it was only for six months of the year ; and that she should keep a house at Paris, namely, at the Place Vend6me, a short distance from the Boulevard des Capucines, where she had been residir^g, and where she continued to reside down to the period of her death. Then, I think, upon this evidence I am bound to hold that the deceased was domiciled at Paris both at the time she made the will and also at the time of her death. She was there for the last fifteen years, which includes the date of the will. Accordingly, the Court having arrived at that conclusion with respect to the fact of domicil, then the next point for consideration is, as to the making of her will, by what law that was to be made, being domiciled in France de facto, according to the jus gentium. In France she was not naturalized, and was not domiciled by authorization ; and the 224 CASES DETERMINED IS THE 1856. March Slat. Bkemer V. Fkeeman and Bremer, question is, what is the effect, of that upon the Avill of the deceased, and whether the will ought to be ^t[h?i9th-'' "1 *^® English form or according to the French August 16th. form, in order to be a valid testamentary paper. Now it may be as well to see the contents of the will itself before I enter upon this question, for I find in many of the cases decided in the French courts that the contents of the wills of persons making their wills in France, in the circumstances stated, have been considered of importance, to see whether there were French executors, whether there were French heirs, the amount of the property, and so forth. The will of the deceased commences by de- scribing her as "Fanny Allegri nee Calcraft, at present residing at the Boulevard des Capucines in Paris, in the kingdom of France"^ — so that it was the place of actual residence according to that — '' the only surviving daughter of the late Henry Fox Calcraft, lieutenant-general in his late Majesty's service in the East India Company, who resided and was buried at Brighton in England." Then she proceeds to devise to Daniel Alexander Freeman a house at Calcutta and all other property in the East Indies. So that in the first place here is a property of considerable value, £300 per annum, in the East Indies — that is, in the British dominions, and not within the territory of France. She then goes on to give one thousand francs each to the two persons who shall be with her in her last illness. They might very possibly, probably would, be French. There is a legacy of £40, that being one thousand francs, to each of the two persons that might be with her — not describing them by name PREROGATIVE COURT Or CANTERBUKY. 225 or national character, but who might accidentally 185 6. be in attendance at the time. Then it goes on to March aist. give 500 francs each to the bureaux of the first and ^^hTioth!'' second arrondissements at Paris. These were for Augmt i6rh. charitable purposes, for the poor belonging to the bbemer first and second arrondissements ; and she gives freewan 500 francs to the English Charitable Fund. bke'mbr. The residue of the property, whether in England, France, or elsewhere, she gives equally between Daniel Alexander Freeman and her cousins Eliza Ann Bremer, Susan Bremer, James Grignon Bremer, and Henry Bremer. Of the last four, I apprehend, only two are living, according to the testimony of Miss Bremer, for she describes herself and her brother as the only two next of kin of the deceased. Then she appoints Mr. Daniel Alexander Freeman and Mr. James Grignon Bremer the executors of her will. So that the executors are English ; the property is all in the British dominions, with the exception of £38 ; and the whole property is left to English people, except the trifle left to the two persons who might be in attendance upon her at the time of her death ; and these little charities of 500 francs each to the bureaux of the arrondissements, and the charity for poor English persons. The property in India is considerable. There was also very considerable property in England. In short, the whole is in England, and is left to English persons, and English persons are appointed the executors. By what law is the validity or the invalidity of this wUl to be decided, so made by a person so circum- stanced as to domicil as she was ? The law of England, I apprehend, as applicable to a case of this kind, is clear. That the will must VOL. I. Q 226 CASES DETERMTNED IN THE 1856. March 3Ist. February Ist, 5th, 19th. August 16th. Bremer V. Freeman and Bremer. be deemed good or bad according to the law of the country where the deceased was domiciled, that is to say, in this instance in the view which the Court takes of it according to the law of France. What that law may be, it is certainly a matter of some difficulty to ascertain ; for notwithstanding the great industry and research of the counsel, and the very able and erudite arguments addressed to the Court on this occasion — and for which . the Court feels greatly indebted to them — and the authorities cited both from English law and also the cases decided in the French courts, the matter may well occasion some hesitation to a person not conversant with French law, and make him extremely anxious to ascertain what is the real state of that law; since MANY of the CASES that have been cited are so irreconcilable on some points that it is difficult to ascertain what the real law is, and the opinions of the very eminent and learned French advocates examined are directly opposed to each other. The 13th article of the Code Napoleon is the foundation of the French law, or rather constitutes the French law, on this matter — that is, in these words, '■^L'etr anger qui aura ete admis par le gouverne- " merit a itablir son domicile en France y jouira de "■tons les droits civils tant qu'il continuera d'y " resider." So that a stranger who has received the authorization of the government, and established his domicil in France, is to enjoy all civil rights there. I apprehend among those civil rights is the testamentary right, and this right he will enjoy, provided he has received the authorization of the government to establish his domicil there. It seems to follow, as a necessary consequence, that those PREROGATIVE COURT OF CANTERBURY. 227 Freeman and Bremer. who have not that authorization, or have not been 1856. naturalized, will not enjoy the same rights. Upon March aist. this law Dr. Phillimore cited some eminent authors '^"gth^igth ^' who have written upon it, and he has favoured me August leth. with their works. The first of these is Mr. Demo- bremek lombe. In his work called " Cours de Code Civil" "in the First Book, relating to persons, the title i?, " De la jouissance et de la privation des droits civils. " He divides this title into three chapters : first, what persons enjoy these civil rights ; secondly, how those persons who enjoy them can be deprived of them ; thirdly, what is the legal condition of strangers in France. At page 143, section 140, are these words, " Nous avons vu que la legislation de chaque pays se compose de deux elements, savoir, du droit public et du droit prive. Le droit privS, ou le droit civil, suivant V acception moderne de ce mot, est celui qui regie les inte'rSts des particuliers, la propriete, lafamille, les conventions, etc.: il est la source des droits civils, cest h dire, des facultes, des avantages, dont la jouissance appartient a tons les Franqais." I have cited this partly to show the law, and partly to show that the droit civil applies not only to political rights, as was contended by the counsel for Mr. Bremer, but embraces other civil rights — that it is not confined. Certainly the words are used by some authors with no small degree of ambiguity. Some- times droit civil is put in opposition to political rights, and sometimes it includes them ; but, according to this author, the droit civil is what I have men- tioned. It goes on as to the quality of Frenchmen, p 144, "ia qualite de Franqais ne suffit done pas pour avoir les droits politiques ; ilfaut de plus etre citoyen." There must be something more; it is not domicil q2 228 CASES DETERMINED IN THE 1856. March 31 St. February Isf, 5th, igth. August I6th. Brbmeb V. Fbeeman and Bkemer, that will give political rights, but in order to enjoy political rights he must be a citizen. " Et ce titre, '■'■dans ce cas, u'est plus, comme tres souvent, le " sijnonyme de Franqais, de regnicole ; il indique '■'■ specialement V aptitude a exercer les droits politiques. " Ai'nsi, tons les Franqais jouissent des droits civils, "mais les Franqais citoyens seuls des droits poli- " tiques." There are other passages which were cited by the learned counsel having a bearing on the same question, but it is quite unnecessary to go through them. What I have read is quite sufficient for the purpose. There is another author, M. Demangeat. He goes through the whole of the matter, and comes to his resume. The resume is in these words, p. 369 : "En resume, je crois done quHlfautdire que, sous V empire du code civil, Vetranger rSa d^autre moyen d'acquerir un domicile en France que d'ohtenir la permission du gouvernement ; et c'est a ce principe que je rattache comme consequences les regies que notes allons par- courir" So that it is quite clear, from the writings of these gentlemen, that the mere fact of the domicil, according to the law of nations, is not sufficient — that there must be the authorization of the govern- ment in order to confer the civil rights. Various witnesses have been examined, both on the one side and on the other ; and perhaps it may be convenient to refer to some of their testimony, in order to see the view which they take. In the first place there are the witnesses who have been examined on behalf of Miss Bremer. The first of these witnesses is M. Frignet. Upon the 17th article he says he is an advocate at the bar of the Council of State, and of the Court of and Bremer. PREROGATIVE COURT OF CANTERBURY. 229 Cassation — the highest court — and successor to 1856. Monsieur Bonjean, formerly minister and president March aist. at the Council of State. He is, therefore, a person ^tt'h.Tgth.*' very high in office, a person of great eminence ; ^ugnat i6th'. and of course anything coming from him is well bremer •worthy of attention. He says, "I am also a freeman docteur en droit, the highest legal title known in this country. I knew nothing whatever of Madame AUegri, the party in this cause, deceased. The will of a person domiciled in France, to be consi- sidered valid there, must be in conformity with the laws of France, in virtue of the principle locus regit actum^ and more particularly so when the will is brought under the cognizance of French tri- bunals." Then he says, " this was so ruled in the Court of Cassation last year in the case of Browning against De Veine;"* in which the will of an Englishman domiciled there was held by that Court to be invalid, in consequence of its not havino- been made conformably to the laws of France. It will be necessary that the Court should exa- mine that case with some degree of particularity afterwards. I may here state that this gentleman refers to a decision of the Court of Cassation in 1853. I have not been able to see a copy of the decision of that Court in 1853 ; but there is the decision of the Court immediately below the Court of Cassation — the Appeal Court of Paris. The highest court to which you can appeal on a point of law is the Court of Cassation. As I understand the matter, they affirmed the decree of the Court below. So, in fact, the report of 1852 is in con- * Ve Veine v. Routledge, ante p. 205. 230 CASES DETEEMINED IN THE 1856. March 31st. February 1st, 5th, lOtli. August Itith. Bremer V. Freeman and Bremer. formity with this decision, to which he refers in 1853 — the decision of the Court of Cassation. I observe that every one of the witnesses examined in this case on the one side and on the other, when they refer to the case of Browning v. De Veine* speak of it as in 1852 before the inferior court. I apprehend, as far as I can make out the statements of these gentlemen, the decision really is to the same effect. Then he goes on to depose, " There is no differ- (( ence m the law of France as to the execution " of wills in or since the year 1842 and the present " time. We are always ruled by the Code Napa- " lean in reference thereto. It is necessary to " distinguish the various forms by which wills may "be made in France." Then he proceeds to describe that there are three forms of making a will in France, namely, the authentic, the mystic, and the holograph form. It is unnecessary to go through his evidence on that point, for that is an admitted fact. It is well known as being the law of France. He goes on again, " The laws of France as to the execution of wills, as I have just stated them, apply as well to foreigners domiciled in France as to French subjects." That is put generally to those domiciled in France, whether domiciled by naturalization or not. He goes on, " In as far as the law of the country to which they belong requires them to conform to the law of the country in which they are domiciled. It is neces- sary to attend to the distinction between the law as to property and the law as to persons." So T>e Veine v. liouiledge, anle, p. 205. PREROGATIVE COURT OF CANTERBURY. 231 that locus regit actum is the principle. Then there 1856. is to be domicil ; and it is the law of France which March sut. is to govern that as far as the law of other countries ^^sfhf iguf' allows. Then he states the distinction between the August i6tii. law as to property and the law as to persons, bkemer " The law attaching to property is always the lex feeeman loci rei sitce." So that is always the case. Locus brembr. reffit actum, whether a party is domiciled or not, is to apply. So that to any stranger being in France and making his will there, unless this is to be qualified by what has been said as to domicil, the rule locm regit actum would apply — even to the testament of any person dying in France, if he had only been there twenty-four hours. That cer- tainly is not the law followed with regard to British subjects. Then if the rule is what it is stated to be, that it is valid or invalid according to the law of France, according to the place where the party is domiciled, and the law attaching to property is always the lex loci rei sitae, that would be a quali- fication. Supposing it to be always the law of the country where the property is situated, then, according to M. Frignet, this will made in France would not operate on property in England — not at all, because that is always according to the law of the country where the property is situated ; and locu^ regit actum appHes to all personal property whatever. Then he is examined on interrogatory, and inquiries are made of him as to the Code Napo- leon. Upon interrogatory (the 17th) he goes back to the case he before mentioned, Browning v. De Veine, and he speaks of it in this way : " First, when the foreigner makes his will in France, it must, according to the case I have before cited. Browning 232 CASES DETEEMINED IN THE 1856. March 31st. February 1st, 5tli, 19th. August 16th. Sbeimek V. FSEIillAN and B££;d£:i. V. De Veine, be made conformably to the law of France, because locus regit actum ; and in that case the Courts of France are competent to adjudicate on the validity or invalidity of the will," and so forth. Upon the next iaterrogatory he says, " The law of France, on the principle that the personal law follows the person, and that moveable property is dependent on the personal law, would, in the case of a foreigner dying intestate in France with- out a French domicil, distribute his moveable property according to the law of his own country. Conformably to the principle locus regit actum, a Frenchman in a foreign country must make his will according to the law of the country in which he is residing, though this rule of law is doubted among jurists of eminence in French law." So that a Frenchman must always, whether domiciled or not in a foreign country, make his will in that form. " The rule is laid down upon the principle locus regit actum, and not upon any hypothesis of convenience to the testator." He goes on, in answer to the interrogatories, to cite other cases, to which the Court will presently refer ; the case of D'Aubanza, which is an exhibit annexed to the interrogatories ; and also to the decision of the Superior Court upon the same case; but I do not think that that case of D'Aubanza has any strict application to the present. He then goes into the case of Lynch, which must be ex- amined by the Court. Such is the evidence, then, of M. Frignet ; and the evidence of the next witness, M. Senard, an advocate of the Court of Appeal, is, I think, very much to the same effect. Pie goes on the principle PEEEOGATIVE COtJET OF CANTEKEUUY. 233 locus regit actum. " When a foreigner has fixed his " principal establishment in France, and has resided " there for a long time, he' will naturally, as it seems " to me, come to adopt the forms of instruments as " used in that country, as he has adopted the habits " and customs of the place itself ; but this is of " course optional, not obligatory upon him. It is " not the fact of domicil that creates the necessity " for his conforming himself, in the execution of " instruments, to the forms of French law. That " necessity is derived from the maxim, locus regit " actum." So that he puts it quite as strongly as the first witness. The third and the last witness who has been ex- amined on that side is M. Paillet, who is an advocate of the Cour Imp^riale. He gives his evidence very much in conformity with the two witnesses whose evidence I have adverted to, and he puts the law on the same principle. N ow, on the other side, five eminent jurists have been examined; and I must briefly advert to the result of their testi- mony, and then consider the cases referred to by them, and which have an important bearing on the case. The first of those who has been examined is M. Marie. He is an advocate of the Imperial Court at Paris, and a Minster of Justice of the Order of Barristers of the Imperial Court. He expresses' his opinion thus: "According to my " opinion, the party deceased referred to was not, " by reason of the premises just read and translated "to me" (that is the statement as to her having been resident in France for the time I have stated, and not being domiciled by authorization and not naturalized), " ever lawfully domiciled in France, 1856. March 31st. February Ist, 5lh, 19lh. August 16th, V. Freeman and Bremer. 234 CASES DETERMINED IN THE 1856. March 31st. February 1st, 5th, 19th. August 16th. Bremer V. Freeman and Bremer. "so as to have acquired a doniicil of succession " according to the laws of that country. I say, that " she had not a legal domicil. A distinction, a "great distinction, must be made between a domi- " cil in the ordinary meaning of the word — which. " is the place where a person generally resides — and "his domicil in the legal sense." He, therefore, takes the distinction, and he seems to come exactly to what one would naturally suppose is the meaning of the Code Napoleon, article 13, that it applies to those who are domiciled there by the authorization of the government. " This latter domicil," he says, " consists — as very properly stated by M. De- " mante, professor of the School of Laws — ^in the " connection established by law between the person " and the place where he resides. Thus, for ex- " ample, when the law of France declares, in the " article 10 of the Code Napoleon, the place where " the succession shall be opened shall be determined " by the domicil, the law refers to the legal domi- " cil we have defined above, which is constituted, " not by the caprice of the residing party, but by " the observation of certain legal dispositions which " the Code Napoleon has clearly defined in articles " 102 and the following, and not to the actual " or de facto domicil above described, constituted by " mere residence. As an instance, suppose a per- "son having his legal domicil at Bordeaux, came " to reside at Paris, and died at Paris, that would " not be a domicil at Paris, but it must be con- '' sidered according to the real domicil at Bor. " deaux." Then he says, " There are in France " foreigners who are established without the above " authorizations, but who have resided for a long PEEROSATIVE COURT (DF CANTERBURY. 235 " time past in a permanent manner, without any 1856. " intention of quitting." That seems to describe the March 31st. state in which this lady was. She had resided in ''*5Jh'"i|J''' France for a long time without any intention of August leth. quitting it. " It has been asked, whether an excep- brembr " tion should not be made witli regard to the above fkeeman " foreigners. My opinion is, that even in such cases bremer. " the article 13 must still receive its application. " M. Proudhon has given a qualification to this class " of foreigners; he has called them 'Incolats;' and he " says, ' It is just that their persons and their acts '^ should be subjected to the legislation of the " country where they have come to reside in a " permanent manner.' This idea may be very " liberal, but in presence of the law as it stands it is " arbitrary and false." So that he does not at all yield to that. Then, as to the case and the decrees, which are referred to by M. Pioudhon and M. Merlin, speaking of these, he says, " There are to be found " objections raised to the above doctrine, supported " by some decrees of the Courts of Justice ; but " these decrees are, in my opinion, to be considered " more as having been made in view of special " cases, than as containing the general principle of " law on the subject. These decrees, thus made, in " special cases have given rise to the practical " adage, that decrees are good for those who ob- " tain them. Therefore, in applying the above " principles to the present case, I maintain that " Madame Calcraft, the deceased, had obtained no " legal domicil in France, because she did not obtain " an authorization from government to establish " one, which I consider an indispensable condition to " a legal domicil in France." His opinion, therefore, 236 CASES DETERMINED IN THE 1856. March 31st. Febraary let, 5th, 19th. August 16th. Dreuer V. Fkeeman and Bremer. is strong; and in reference to ttese cases, he says they form exceptions, and there were reasons why they varied ; and, I think, when the cases come to be examined, it does appear that the general rule is, that the party must be domiciled by authoriza- tion; that, under particular circumstances, where there are French interests concerned, and especially if the property is immoveable property in France, then the French law would consider the matter in a different point of view. Upon the interrogatories the witness says, " j " have, from having had read to me the first eight " articles of the allegation upon which I have been " examined, expressed an opinion to the effect that " the deceased in this cause was not, by reason of " the premises contained in these articles, ever law- " fully domiciled in France so as to have acquired " a domicil of succession according to the laws of " France. I mean to express thereby, that as the " deceased had not obtained an express authority to " establish a legal domicil in France, no act of her's ' could supply the deficiency of that authority. I " do mean to give it as my opinion of the laws of " France, that no foreigner can obtain a lawful " domicil in France, so that the succession to his " property shall be regulated by the law of that " country, unless he shall have received the express " authorization of the government of France, al- " though a contrary opinion has been expressed by " Proudhon and other writers." So that he adheres to that opinion, notwithstanding these cases which are referred to, and notwithstanding the opinion entertained by M. Proudhon. He then refers to the case of Onslow^ to Lloyd's case, and Thornton's PREROGATIVE COURT OF CANTERBURY. 237 case, which was very much discussed in the course 1856. of the argument, and to which the Court will March 3ist. shortly advert ; and also to BreuVs case. He ^*6lh*ioihf' speaks of Routledge v. I)e Veine, as the other wit- ^uguBueth. nesses do, as having been decided in 1852. bremer The Court does not think it necessary to go freeman through the other witnesses examined. There are bremer. five witnesses, and they all take the same view of the case, opposed to that taken by M. Frignet, M. Senard, and M. Paillet. There are five of them express their opinion one way, and three the other. With such differences the Court must have some difficulty in deciding the points of course. But it may be as well now to refer to the cases upon which the advocates have been examined — the French jurists — and which were also discussed before the Court in the argument in this case. The first of these cases was one from Sirey^s Re- ports in 1851, Brown Lynch v. Martin Lynch. The summary of the case, which is put at the com- mencement of it, and I take that summary to be what we should put in our reports as the marginal note, is this: " Foreigner — Succession — Moveables — Competency — Provision al administrator — Bail — The law which regulates the succession of a foreigner deceased in France, as to moveables which are situated in that country, is the law of the country of the deceased, especially if such person had not a a legal domicil in France, and had not any French heir." So that there are two distinctions; and this will account for some of the distinctions in the other cases, since the having a French heir seems to make some diffljrence. "Consequently, the French tribunals are incompetent to take cogni- 288 CASES DETERMINED IN THE 1856. March 3Ut. February 1st, 5th, 19th. August 16tb. Bremer V. Freeman and Bremer. zance of a demand in liquidation and division in such a succession. Consequently, an instrument emanating from the foreign competent tribunal, which authorizes one of the heirs to administer pro- visionally the succession of the deceased, ought to be applied to the moveables situate in France, although even they should not be specially named in that instrument; provided, however, that the instrument in question does not contain anything contrary to the principles of French law. Thus, if that instrument attributes to the administrative heir the power to dispose of the goods of the de- ceased, the other heirs cannot demand from the French tribunals the authority to proceed them- selves to the sale of the moveables situate in France." Now, the tribunal of the Seine, from which this was an appeal, had decided as follows: — "As to the demand for an account, liquidation, and divi- sion — ^Whereas Francis Lynch was born in Ire- land, and had his domicil there during a long time ; whereas he had never been naturalized a Frenchman, and did not even obtain from the king the right to establish his domicil in France ; that thus, therefore, he died an Englishman." That seems a direct decision in point. This man was born an Irishman ; though he was resident in France he was not naturalized by any law, and he was not domiciled by any authority of the govern- ment ; the consequence was, he died an English- man, therefore he might make his will in the English form. " Whereas his fortune is all per- '' sonalty, and therefore regulated by the personal "statute, that is to say, by the English law, which PEEEOGATIVE. COURT 01' CANTERBURY. 239 " followed him on to the soil of France, as the 1856. " French law follows the Frenchman into a foreign March bist. " country, and continues to regulate there his capa- ^^511^191^**' " city and his status ;" so that it is not only a August i6tb. consequence, but it is here stated as a necessary bremek consequence, that he may make his will according freeman to the law of England, just as a Frenchman bkb^kk. may make his according to the law of France. "Whereas the law of the 14th of July, 1819, is " without application in this case ; because, on the "one hand, his succession is all personalty ; and on " the other hand, Francis Lynch leaves no French " heir," Neither is there in this case any French heir, neither is there immoveable property. AU the property the deceased has in France is personal property, and that of small amount, the bulk of the property being in England. Now it is, I think, hardly necessary to go further into this case, it cannot be clearer ; but look at the decree of the Appeal Court, " The Court, adopting " the reasons of the first judges, confirms, and " nevertheless orders, that Martin Lynch should be " called on to give security for 20,000 francs in " respect to the valuables found in France ;" that is, he was the executor appointed, and he had taken probate in England, he had given security for the amount of property in this country, and the French adopted the English will; they only said he must give security for the due administration of the property in France, but they pronounced for and held the English will to be good. The next case that was adverted to by the jurists was that of Thornton v. Curling. The summary of that case is, "Civil rights— Foreigner — Competency 2 to CASES DETERMINED IN THE 1866. " March 31st. February 1st, 5th, 1 9th. August 16th. Bremer V. Freeman and Bremer. Succession. — Ought to be held opened in France, " the succession of a foreigner who died there since " the law of the 14th of Julj', 1819, after having " obtained from the government the enjoyment of " civil rights, and having transferred to that country " his domicil conformably to the authorization which " he had obtained, and that, although the foreigner " was not a naturalized Frenchman." So that is the point in that case ; he had been domiciled in France ; he was not naturalized but domiciled by authorization ; and being so domiciled he must be considered a Frenchman, and must adopt the French form. That is exactly the converse of the other case. In Lynch's case the deceased had obtained a domicil but not authorization, therefore the English law prevailed ; but here, in Thornton's case, was an Englishman who had obtained a domicil by au- thorization, and it was held that he was to be considered a Frenchman, and was to make use of the French form. The decree of the Court of Paris in this case was : " Considering that Thornton was not naturalized a " Frenchman, and was only admitted to establish " his domicil in France, he died a stranger ; that in " all cases the disposition of the moveables of a " stranger existing in the place where he dwelt is " submitted to the legislation of his country, de- " Clares the judgment incompetently rendered, and " sends the parties to proceed before their natural "judges." The Court of Paris reversed in this judo-men t the decree of the Court of the Seine, which had held that Thornton was domiciled in France, that moveables are regulated by the law of the domicil, PBEBOGATIVE COURT OF CANTERBURY. 241 and that it was for the French tribunals to take 1 856. cognizance of the question. But the Court of Cas- March sut. sation, the last court of appeal, reversed the judg- ^^ath^'imh.'' ment of the Court of Paris, and made this decree: ^"g"°' ^^"'- " The Court having looked at the articles l.S and brembr " 110 of the Code Civil, and 59 Code de Procedure, freeman " considering, first, that the judgment of the first bremer. " instance, not contradicted on this point by the " decree appealed from, recognises in fact that " Thornton had been authorized by a royal decree " to establish his domicil in France ; that he had " eflfectively established and preserved it there ; " also, that he died in Paris ; and that thus, under " the terms of the article 110 of the Code Civil, *' it was at Paris that his succession opened ; se- " condly, that the actual proceedings are between " the son of Thornton, his natural and legitimate " heir, and Curling, in his quality of testamentary " heir ; and that the question is, to pronounce on " the validity or invalidity of the testament of the " deceased ; and that, under the terms of the article "59 of the Code de Procidure, this question ought " to be carried before the tribunal of the place " where Thornton had acquired his domicil, and " consequently before the tribunal of the Seine. " Thirdly, that these principles are so much the " more applicable to the case, although Thornton " had not been naturalized a Frenchman, in that " the royal decree which admitted him to establish " his domicil in France, conferred on him, con- " formably to article 13 of the Code Civil, the " enjoyment of civil rights ; and that having been " in consequence of that disposition subject during " his life to the jurisdiction of the French tribunals, •"■'^T;. I. B 242 CASES DETERMINED IN THE 1856. March 81st. February lat, ath, 19th. August 16th. Bremer V. FREEiMAK and Bremer. " as well in reference to his person as to the goods " which he had in France, the difficulties rel3,tive " to the succession to these goods are necessarily "subject to the same jurisdiction; whence it fol- "lows, that in sending the parties before other "judges, the decree appealed from has violated the " laws above cited, which makes it unnecessary to " examine the first point, which remains reserved "to the parties; pronounces the judgment erro- " neous, and reverses it." So here is a clear decision on that point in Thornton's case; he having been domiciled by authorization, the law applies to him in the manner stated. Now, these two cases so far are perfectly clear. The next case is that of D'Abaunza, which has been referred to, but which has very little application and very little bearing on the present case, and which, the Court will not think it necessary to go through. The same may be said as to another case, that of Verity V. Machensie. Another case is BreuVs case, and which is referred to by several of the witnesses examined both on the one side and on the other. That came on for hearing in July, 1852, and was a question as to domicil, and the competency of the French tribu- nals. The summary of it is this: " The article 13 " of the Code Napoleon,w]\\(h. says that the foreigner " admitted by the French Government to establish " his domicil in France enjoys there all civil rights, " had not for its object to determine the conditions " which a foreigner ought to i\x\S\ in order to ac- " quire a domicil in France, The foreigner who. " has fixed his residence for more than 30 years in. " France, and who has not quitted it during that PREROGATIVE COURT OP- CANTERBURY. 243 "interval of time, unites all the legal couditions 1850. "constituting domiQil. It is, therefore, to the March aiat. " French tribunals that ought to be submitted ques- ^'ttMmir " tions relative to the succession of that foreigner Augus^ieth. " who has died in France." This is apparently in bremer direct contradiction to the two former cases which freeman I have commented upon ; but it is necessary to see bremeb. the whole of the facts of it. The following are the circumstances in which the question presents itself : M. Justin Breul, born in 1799, a Hanoverian subject, came to establish himself in Paris; there he established a manufactory of bronzes and porce- lains. On the 10th of April, 1847, he married at Paris a Frenchwoman. No contract Avas entered into for regulating the pecuni*y conditions of the marriage. This is the important circumstance, this is what gives the colour to the case — the marriage in France to a Frenchwoman, and with regard to the effect of a marriage so contracted in France as to a community of goods. On the 8th of September, 1851, Breul died in Paris. He left a will, made in the holograph form, deposited with a notary — that is, according to the French law. The natural heirs of Breul were strangers. Some were domiciled in Hanover, another at Frankfort-on-the-Maine, another at Brunswick. A suit was brought by the widow against the natural heirs. The question of incom- petency was there raised. The decision of the CivU Tribunal of the Seine was as follows : — " Considering "that according to the article 110 of the Code " Napoleon, the place where the succession is opened " is determined by the domicil; that according to the " article 102 the domicil is the place of the principal " establishment — considering that in fact Breul had e2 244 CASES DETEK5JTNED IN THB 1856. March 31st. February 1st, 5lli, igth. lugust 16i.h. Bremer V. Freeman and Bremer. " inhabited Paris more than thirty years ; that at a *' very early period he established there an important " house of commerce ; that he never ceased directing "it up to his death, and in it he realized important " profits ; that it has been articulate, and not con- " tested, that in this long interval Breul never " quitted Paris, not even in order to make a journey " to Hanover, where he was born ; that he married " at Paris a Frenchwoman ; that he therefore united " ' all the conditions constituting a domicil ; that " it is in vain to oppose the dispositions of the 13th " article of the Code Napoleon ; that in effect this "article, which says that the stranger who has been " admitted by the French Government to establish " his domicil in Fran«e, enjoys there all rights which " are found under the rubric of civil rights, has not " for its object to determine the conditions which a "stranger must fulfil in order to acquire a domicil " in France ; that it has always been recognised by "jurisprudence, that the stranger who had fixed " his real habitation in France, and who had had " the intention of fixing it there, even without the " authority of the government, did not the less re- " quire a domicil in France." Certainly that seems to go directly the reverse of the former cases, and the considerations there stated. But the decree goes on : " Considering, on the other side, that according " to the article 19 of the same code, the widow " Breul, who had lost her nationality by the fact of " her marriage with a stranger, had, by her widow- "hood, recovered her quality of a Frenchwoman." So that was one of the considerations, that he had married her without any agreement or any stipula- tion as to community of goods, and that upon his PREROGATIVE COURT OF CANTKEBUEY. 245 death she recovered her condition of a natural sub- 1856. ject of France ; therefore there were the interests of jiarch 31 st. a French subject concerned. " That on these two ^tTimii".'' "grounds the tribunal has been rightly resorted to. August iHih. "For these reasons, without delay nor having re- brbmbr " gard to the exception taken of its incompetency, freeman " it retains the cause for decision." That is all the UREMiiB. Court does. Then it is upon these two grounds, not upon a consideration of a domicil without au- thorization, but upon these two grounds, that there was a marriage between the parties without any agreement or stipulation as to a community of goods, and that the wife was a Frenchwoman, and the moment the husband died her natural character of a French subject returned to her, that the Court retained the cause for decision. It is not an abso- lute decision on the facts or law at that time, but the Court retained the cause for decision. But at a later period a decree is made by the Imperial Court of Paris. This decree that I have alluded to was upon the 11th of July, 1852, and the decree on appeal on the 17th of December, 1853, and what fell from the latter Court is this: " Con- " sidering that the husband and wife Breul were "married at Paris on the 10th of April, 1847, " without having regulated by deed their matrimo- " nial conventions ; that thus under the terms of " articles 1393 and 1400 of the Code Napoleon, their " marriage is submitted to the rule of community — " considering that the quality of a, foreigner which "belonged to Breul could not prevent the applica- " tion of these articles; that, in effect, the law, in " disposing as it has done, supposes that the parties '•voluntarily abstained from establishing by writing 246 CASES DETERMINED IN THE 1856. March 3l8t. February 1st, Sth, 19th. August I6tb. Bhemer V. Fkeeman, and Bremer. " their conventions, and that there has been formed " between them a tacit contract which the law alone " consecrates, and of which it regulates the conse- " quences ; that foreigners, capable of stipulating " in all contracts dependent on the law of nations, " as that which is in question, can, on marrying in " France, accept tacitly the rule of community esta- " blished by the law in the same manner as they " might have stipulated it expressly in a deed — " considering, however, that in order to apply these " principles to foreigners it does not suffice that the " marriage should have been contracted in France ; "that it is necessary also that the will of the con- " tracting parties should be manifested by certain "acts — considering that the establishment of a " domicil in France has always been considered as " the most positive manifestation of that will ; that, " without doubt, this domicil ought to have an im- " portance which distinguishes it from a simple re- " sidence, but that it is not necessary that it should " have been authorized by the government in the " terms of article 13 of the Code Napoleon, since that "authorization has for its object to confer on the " foreigner all the civil rights belonging to national " persons, and that these rights are not necessary for " the regulation of matrimonial conventions purely " of the law of nations — considering that, in the " case for decision, Breul, at the time at which he " was married, inhabited Paris, where he had " founded, more than twenty years since, an im- " portant commercial establishment j that this esta- " blishment was the only one which he carried on; " that he had never preserved either domicil or re- " sidence in the country of his birth ; that having " collected in this country before his marriage an PEEUOGATIVP, COURT OF CANTERBURY. 247 " important succession, he had realized all the value 1856. " of it, and had placed the products in France, where Marchsist. " already was placed the remainder of his fortune; '^"gaf^gth''; "that these facts show, in an incontestable manner, August leni. "that Breul had in France, at the time of his mar- bkembr " nage, a settled domicil," not naturalization, but freeman "Mn domicile serieux"* — "considering also that brmkr. " Breul preserved that position up to his death ; that " in his will he declared it in express terms, and at " several titnes that he was married under the rule " of Community; that thus wishing to maintain, as *' far as hu could, even after him, the seat of his " fortune in France, he ordered, by this act of his " last will, that the capital of which he disposed in " usufruct should be placed either in French rentes " or on mortgage on goods situate in France ; that " there cannot, therefore, exist any uncertainty as " to the wish of Breul to submit to the French law "the regulation of the civil conditions of his mar- "riage; that therefore there was community of " goods between the husband and wife Breul." That is the conclusion to which they came after these considerations, simply that there was com- munity of goods between husband and wife, and in consequence of that " the Court pronounces that " there is community of goods between the husband " and wife Breul conformably to the articles 1393 " and 1 400 of the Code Napoleon." That is the sum total. There is no absolute decision there, though they state thfe consideration of his being domiciled, the great number of years which he had lived in France, and likewise that the marriage was without an agree- * Serieux : Terme ck Jurisprudence. Q,ui u'eal pas siumU. — Diet, de L'Academie. 248 CASES DETERMINED IN THE 1856. March 3 let. February Ist, 6th, 19th. August I6th. Bremeb V. Fbeeman iiad Bremer. mentas to community of goods, his desire that his property should remain in France, and the fact that the widow was a natural born Frenchwoman, and on that ground they pronounce there was a com- munity of goods. Certainly there are facts in that case that do not appear to be in accordance with the cases I before cited, but the judges do not seem to rely upon them ; and the decree that was made, and the only decree that was made, respects this community of goods. Lloyd's case comes next, and the summary is this: " The husband, a foreigner by birth, but domiciled " from a long time in France, who marries without "contract in that country with a Frenchwoman, " ought to be considered to have consented to the "legal community established by the French law; " and that, although the fact of his domicil was not " accompanied by the authorization of the govern- " ment necessary to enable a foreigner to establish " his domicil in France, this authorization, required " in order that the foreigner may enjoy all French " civil rights, is not necessary for the establishment "of the community," that is, the community of goods, " which is purely of the law of nations." Therefore that seems to be a case very much to the same effect as the Breuls' case. As to Mr. Lloyd himself, it really seems to be hardly known to what country he did belong, though 1 think he turns out from one part of the case to have been an English- man, but where he was born or came from no one knows. He married in France without any stipu- lation, and the French tribunal came to this decision upon the community of goods; and beyond that the case of Lloyd does not go. PREROGATIVE COURT OP CANTERBURY. 249 The next case, which is the first mentioned by 1856. M. Frignet, is De Veine v. Routledge. That came March aist. before the Court of Appeal, and is reported by ^tth*i9th.'' Sirey, and is stated to have been decided in the Augosoeth. Court of Cassation in 1853. I have no doubt it bremer was so, but it seems, according to the statement of frebman M. Frignet, that the decision was the same as that bremeh. which took place in 1852 in the first Court of Appeal, and subsequently in the Court of Cassation, the next highest court, and the decision seems to have been sustained by the Court of Cassation according to the evidence before me. There are various points in that case which it is not necessary to go through, but the third is this : " The succession of a foreigner, as to moveables " situate in France, is regulated by the French " law, when the deceased had his legal domicil in " France, and his succession is claimed by a French " heir against foreigners as universal legatees." This is one of those cases referred to by the counsel where they speak of the variations in these deci- sions, some of them in consequence of there being French heirs, and in other cases because there are moveables in France. In this case, though there was no domicil by authorization, yet in point of fact the deceased was domiciled there according to the law of nations; but there was a French heir in the case, and the Court held that the French heir should not be injured by a disposition leaving the property in the way in which it was disposed of in the will. " Fourthly, a holograph will, made by a foreigner " in France, of which execution is demanded before " the French tribunals, cannot be declared valid 250 CASES DETERMINED IN THE 185c March 3l8t. February 1st, olh, 19t.h. Augast 16th. Bresier V. Freeman and Bremer, " unless it unites all the conditions of form recog- " nized as essential in French law, and whatever " may be in that respect the state of the law of the " country to which the testator belongs ; conse- " quently, such a will is null, if it is not written " entirely in the hand of the testator, or if it is' not " dated.'' They adhered to the French law on that point. Now, another case which was cited was, I think, from the journal Le Droit; that was Olivarez's case. I do not know that it carries the case at all further, or puts it in any different point of view at all. But the case of Onslow was very much discussed, and perhaps it may be as well to advert to that ; it was a case of naturalization. The summary of it is this : " The foreigner, who was at the time of the " promulgation of the law of the 30th of April, " 1790, established in France, had had there a con- " tinuous domicil for five years, and had married " there a Frenchwoman, was naturalized of full " right, without being bound to take the civic " oath." The sum and substance of this case of Onslow's was, that he was domiciled in France, but never domiciled according to the requirements of the Code Napoleon — never domiciled there by au- thorization of the government. But it turns out he had acquired a domicil, and he was domiciled there before the Code Napoleon was in force ; in fact, before there was any Code NapoUon at all, he had become a naturalized Frenchman ; therefore, the law applied to him as it would to a French citizen or French subject. Onsloivs case is given at great length. It seems to have been taken before the Court of Cassation ; it goes to the PREROGATIVE COURT OF CANTERBURY. 251 highest court; and it is upon the ground I have 1856. Freeman and" Beemek, Stated that he was to be considered a Frenchman, Mai-di sist. to be domiciled there as if he had been domiciled ^"Mhrioth!' there by authorization, because he had been domi- August i6;ii. ciled at the time when this act of authorization i^kemer was not necessary, being domiciled in another form, and he did not lose that domicil. Then, other cases have been cited, very especially the case of Laneuville v. Anderson, but I think it is hardly necessary for the Court to enter into that discussion. Mr. Anderson, who went to France and made his will there, left property in France to a lady to whom he had been long attached, with whom he had resided. He obtained immoveable goods in France, real property, and he left them to that lady ; therefore, the French Court declared itself competent as to the property which was in France, and pronounced the property to be the property of Madame Laneuville. There was also a case, which I think was not mentioned in argument, but which Dr. Deane, one of the counsel in this case, was kind enough to give to the Court ; a case which seemed to be very much in point, and directly contrary to the con- clusion which the Court has rather intimated its intention of arriving at. It is contained in the Journal des Tribunaux. This is a decision of the Civil Tribunal of the Seine upon the 14th of March in the present year. The case is this: " Tribunal Civil de la Seine. Etr anger — Domicile — " Succession — Ouverte en France — Competence. — La " succession de V etr anger doit etre consider ee comme " etant ouverte en France, lorsquHl est constant en fail " que le decede avait dans ce pays son principal 252 CASES DETERMINED IN THE 1856. March Slst. Februai'y 1st, 5th, 1 9th. August 16th. Uremer "f Freeman and Bremer. " etahlissemenf, et ce alors mSme qu'il naurait pas " ohtenu du Gouvernement Franqais la jouissance des " droits civils." That is the first part of the sum- mary, and it is quite clear that it is in direct opposition to several of the cases I have mentioned, because there is an express declaration that a domicil without authorization of the government will have the same eifect as, in point of fact, the authorization has. Then, ^^Par suite les trihunaux Franqais sont seuls competens pour connaitre des diffi- cultes relatives a Vouverture de cette succession." Then the report proceeds to state the case ; it is very short. On the 21st of June, 1854, died at Paris the Baron de Mecklenbourg. He left neither ascendants nor descendants ; his heirs accord- ing to the French law were four. " Ses heritiers, " d'apres la hi Franqaise, etaient quatre,pour un quart., " 1°. Mme. la Baronne veuve de Mecklenbourg ; 2". M. " le Baron Christian de Mecklenbourg; 3°. Mme. la Ba- '■'• ronne Elisabeth de Mecklenbourg ; 4°. Conjointement " Mme. la Baronne de Eeischach nee de Boeder, etMlle. " Je Boeder; ces deux dernieres par representation de " Julie Anne, Baronne de Mecklenbourg, decedee, ipouse " du Baron de Boeder. Mais, auss termes du statut " Mecklenbourgeois, Mile, de Boeder se trouvait exclue ^'' de li succession, cette loi rHadmettant la representa- " tion en ligne collaterale que jusqul au premier degre;^ so that according to the French law they were divisible into four. The Mecklenbourg law did not quite agree with the French law, because that does not admit a representation so far off as the French law does. " LorsquHl il fut procede a Vinventaire, Mile, de '■'•Boeder rietait pas presente, et le notaire, sur la PREROGATIVE COURT OF CANTERBURY. 253 " riquisition des Mfitiers, crut dtvoir appliquer aiix 1856. '■'•parties les qualites que leur attribuait la loi dupays March si at. '^ auquel appartenait M.le Baron de Mecklenhourg ■" ^^^Z^^iqI^.' so that she not being present, the notary thought August leth. proper to apply the Mecklenboure law, not the bbemek French law, and therefore excluded Mile, de Eceder. frbe'man " Mile, de Boeder a vu la une atteinte portSe h ses bremer " droits^ et avec Vassistance de Maier, son tuteur, elle " a assign^ ces coheritiers pour voir dire que Vinventaire " serait continue en sa presence, comme habile a se "porter heriiiere pour un huitieme du Baron de Meck- " lenhourg, Les autres he'ritiers ont conclu a Vincom- "■pe'tence du tribunal en se fondant sur ce que toutes " les parties etaient etranghres, et que les biens que le " defunt possedait en France ne se composaient que " de meubles. Le tribunal,, sur les conclusions de " M. le substitut Pivard, apres avoir entendu M. " Dufaur pour Mile, de Eceder, et M. Bethmont pour " les defendeurs, a rendu le jugement suivant." Then we have the judgment: '^ Attendu quHl " risulte, soit de toutes les circonstances de la cause, " soit des documens produits, que le Baron de Mecklen- " bourg avait a Paris son principal et mime son unique " dtablissement ; que, depuis 1828, il nen avait con- " serve aucun h Vetranger. Atlendu quHl risulte de " ce fait la consequence legale que le dit Baron de " Mecklenbourg avait son domicile a Paris, et que sa " succession s'y est ouverte." So that, considering that he lived there — that he was under the French law and was domiciled there, though there was no authori- zation — considering that — '"'■Attendu quHlimporte peu " que le Baron de Mecklenbourg rHait pas perdu la " qualite d' Stranger, et n'ait pas ete autorise par le " Gouvernement Franqais ajouir en France des droits 254 CASES DETERMINED IN THE 1856. March Slat. February 1st, 5th, igth August 16th. Brisker V. Freeman and Bbemer. " dvils ; que, en effet, lajouissance legale de ces droits " est independante de la question de domicile, qui ne " repose que sur celle de savoir ou est en France le ^'•pnncipal etahlissement de Tetranger qui y reside — "j)ar ces motifs, le tribunal wjette le declinatoire, " se declare competent, dit qu'il sera plaide au fond, " renvoie la cause a quinzaine pour les phidoiries ; " condamne les parties de Laperche awe depens de " rincident." So that this Court clearly decided in this case that a domicil was sufficient without any authorization ; and though it was opposed, and though it was argued by counsel on the one side and on the other, the Court was quite clear in the decision, and condemned the other party in the costs of the proceedings. Certainly I was rather surprised, for I could not by possibility at all reconcile this case with any of the cases which have been referred to, some of which went a very considerable length. There was a discrepancy on some points between this case and those which I have been referred to ; but I was very much surprised, and did not know how this matter could be sustained. However, it does so happen that there has been an appeal from this decision, and that the superior court has- reversed the judgment ; they came to a different conclusion there. The heading of the case is this, and it was under the presidency of M. Delangle, the first presi- dent of the Imperial Court of Paris — ^" Audiences " des 15, 22, et 26 Juillet, 1856. Succession ouverte " en France — Etranger — Domicile — Competence — " Succession du Baron Frederic de Mecklenbourg. — " Les tribunaux Franqads sont incompetens pour " statuer sur les difficultes relatives a I'ouverture de la PREROGATIVE COURT OF CANTERBURY. 255 " succession d'un Stranger decMe en France, lorsque 1856. " les he'ritiers sont Strangers, que les immeubles sont March 3i»t. " situSs hors de France, lesqvUl est constant, en fait, ^sJhf'igth. ' " que le defunt a conservS avec le gouvernement dont August leth. " il etait sujet, les rapports qu'ils jugeait les plus beemer '"'• propres a maintenir sa nationalite. En vain oppo- freeman " serait on que depuis longtemps il habitaii la France bremer. " et quil avoit pris part a des speculations de diverse " nature. Ces circonstances ne sauraient entrainer la " renonciation au domicile d'origine." The superior tribunal comes therefore to the de- cision of reversing the sentence that was so pro- nounced by the inferior court. Well, then, this comes to be a case directly in point, and shows that this domicil by authorization is necessary by the French law; and therefore the conclusion to which the Court would arrive upon the evidence which has been given upon the testimony supplied by the French witnesses, by these eminent jurists, five on the one side and three on the other, considering the nature of the several cases which have been adverted to, and especially considering the last case that was decided, is, that it seems to me to be quite clear that it is necessary in order to establish such a domicil in France as to affect the succession of the testator and the mode of making wills, that that domicil should be by authorization.* * In the course of his judgment, in Wrighfs Trusts, 25 L. J. Oh. 631, Vice-Chancellor Wood observes : " I have been but very little assisted by the " French opinion^. M. Cremieux has assumed throughout the domicil to be " English. M. Outilleul has not assumed that, but has argued upon it in " this way, in virhich he appears to be clearly wrong : he says that without a " licence from the government the rights of domicil cannot be acquired. " Now, three authorities have been cited which contradict that; and there- " fore I have not been able to derive any assistance from the opinion founded " upon that hypothesis." 256 CASES UETEBMINED IN THE 18/)6. March Slat. February 1st, 5th, IQth. August 16th. Bkemer V, Freeman and Breuer. In this case it appeals to me that the deceased was domiciled in France according to the jus gentium, but no further; that there was no domicil by au- thorization, and consequently she was entitled to the privilege of making an English will, more espe- cially when all the relations and all the parties who were benefited under the will, with some trifling exception, were English people, and domiciled in England ; and considering that all the property was not in France, but, with the small exception of the goods in the apartments, was in England, I think the fact of making the will in accordance with the English form was perfectly right and proper, and it will be the duty of the Court to grant probate of the paper propounded. I should have mentioned, in addition, the case of Collier V. Rivaz. In that case my learned prede- cessor came to a similar decision. It is quite true that did not relate to a domicil in France, it was in Belgium; but it appears that in Belgium the Code Civil of France is adopted, it was therefore under the same law. There were two eminent jurists examined in that case, and they came to the same opinion as the five gentlemen in the present case. Therefore the Court pronounced for the will in the English form, made by an English subject domiciled according to the law of nations in Belgium, but not domiciled there by the authority of the government of that country. It is the duty of the Court to follow in the same course, and accordingly I give my sentence for the will which was executed by the deceased, for there is no doubt whatever of the due execution of the will and the capacity of the de- ceased. The gentleman has been examined who PEEROGATIVE COUET OF CANTERBURY. 257 got the instructions from the deceased, who drew 1856. up the will, and was present at the execution, and March 3ist. he deposes in such a way as to leave no doubt on ^"su^fioth'' this subject. I therefore shall pronounce for it. August leth. There is only one. matter more to be considered, bkemer that is with respect to the question of costs. I think freeman it was quite right on the part of Miss Bremer to con- bkemer. test this will. There was so mtich doubt in the opinion of the French jurists and some of the French decisions as to the validity of an English will in the English form, that I think she was justified in calling in the probate of the will, and therefore I shall not condemn her in the costs of the proceedings. But there is another part of the case, and that is with regard to Mr. James Bremer, who was one of the executors of the will. He took probate of it, and he was acting under it while it was an out- standing probate. I do not say there was anything improper after he brought in the probate in obedi- ence to the monition that was served upon him. I do not say he was bound to defend the will, if he took a diflFerent view of the law. He had been ad- vised that it was not a good will, that it could not be sustained, therefore I do not know that he was called upon to join Mr. Freeman, his co-executor, in supporting this will. I think he might have been justified iti joining Miss Bremer, who was also a legatee. I think he might have beea justified in joining her in opposition to the will, but I think that the course which he has taken is hardly that which can receive the sanction of the Court. It is left to Miss Bremer to carry on this suit; Mr. Bremer did not join her, but he conducted the cause on her behalf; and then when her plea is given in, VOL. I. s 258 CASES DETERMINED IN THE 1856. March 31st. February 1st, 5th, 19th. August 16th. BSEMER V. Freeman and Bremer. and witnesses are produced and examined, lie takes it upon himself to cross-examine them as if he was an adverse party. Now, an application was made to the Court in the course of the proceedings toprohibit Mr. Bremer from addressing interrogatories to the witnesses, who were in point of fact his own witnesses. The Court, however, thought it was not at liberty to take that step, and to prohibit him from the course which he thought proper to take. The interrogatories which he might address to them might have been very proper. I thought it better that he should be allowed, if he chose, to pursue that course, but I confess at the same time the Court did not see with perfect satisfaction the course pursued, it did not quite become him, not that anything essentially wrong was intended, but I think the Court must do something to mark its sense of that proceeding. I shall not visit him with a serious penalty, but I think I must condemn him in something nomine expensarum. I think I shall not do injustice if I condemn him in £50 nomine expensarum. I pronounce for the will. Of course Mr. Daniel Alexander Freeman, the executor, is entitled to the probate; whether Mr. Bremer will join him I do not know ; the Court has not the power of excluding him. PfiEROGATIVE COURT OF CANTERBUEY. 259 Norton v. Bazett.* 7 Wm. 4, and 1 Vic. c. 26, s. 9 — Subscription in the 1856. presence of the testator. juiy i9th. August 4th. The deceased left a will in his own handwriting, Where thesut- executed. according to the evidence of the sub- wuoesses'takes scribing witnesses, under the following circum- ferrnt'root^''^" stances:— ^'TJ^iu'^" which the tes- During the morning he was engaged in writine t^*'"' i'; ^e in the private or inner room of the office, in which to have been room the deceased and his partners usually sat. whence he The outer room was the clerk's office, where the srenlhe^wu- witnesses sat ; the private room was entered from "Xcribed**^^ the outer room by a door which was habitually kept "*='•' names- wide open, that is, the door was habitually rather more open than it would be if standing at right angles with the wall. The deceased was a particular man with reference to his clerks, and the door was kept thus open to enable him to look after them. It stood open in this way on the morning in ques- tion, and during the morning the witnesses passed into the deceased's room several times, and observed that he was engaged writing on his private affairs. This was apparent to them from the nature of the paper on which he was writing. Between two and three o'clock in the afternoon the deceased, being still in his room, called to the witnesses to come to him, and on entering they saw him sitting at his * This case has been accidentally misplaced. s 2 260 CASES DETERMINED IN THE 1856. table with two sheets of the said paper before hira, July 19th. both written upon. His table was in the centre of Augus^th. j^.g room, and he was sitting at it, with his back Norton towards the partition wall between his room and bazett. theirs. As they passed through the doorway his chair was a little on their left hand. Immediately as they entered, the deceased said, "This is my last will and testament which I have made, and I request you to witness my signature." The two sheets of letter paper before mentioned lay before him at the time, and he at once signed his name " William Norton " at the end of the will on the second of the two sheets of paper, in their presence. They were both standing by his side at the time, and he re- mained sitting in his chair. He then handed to them the last sheet of the will, and requested them to sign their names to it, and to add the words " Witnesses to the signature of WiUiam Norton." The table in the deceased's room was full of papers, and so, for convenience in signing, they took the said last sheet to their desk in the outer office ; the other sheet of the will remained on the deceased's table. They went into the outer office and there signed their names respectively to the said last slieet in each other's presence, standing whilst they did so at that corner of the desk which was nearest to the said doorway. They so signed their names as wit- nesses, and added the words " Witnesses to the signature of WilUam Norton." The desk could be seen from some parts of the said private room, but not from all parts of it, and not from that part at which the deceased was sitting when they left the room to sign their names. He was then sitting ^ith his back to the door ; his chair was not two PREROGATIVE COURT OE CANTERBURY. 261 yards from the partition wall; and if he had moved 1856. a yard to his right hand from his chair, he could j„iy 19th. have seen the desk and -witnesses as they signed ■*^"S||^*- their names ; whether he did so move, the witnesses nomon had no means of saying. As soon as they had bazett. signed their names, one of them returned alone into the inner room with the second sheet of the will, and gave it to the deceased, who then read over the signatures. When the will was brought back the deceased was standing up at that side of his table which was parallel with the said partition wall, with his back to the wall, and exactly in front of the chair on which he had been sitting when they left the room. He was apparently arranging his papers before leaving the office. How long he had left his chair they could not judge. They neither saw nor heard him between their leaving and returning to his room. The door between the two rooms re- mained open during all the transaction. They were absent from the deceased's room about two minutes whilst so signing their names. Annexed to the interrogatories was the plan of the two rooms, on which the witnesses were re- quested to mark the places where the deceased sat and stood in the inner room, and they subscribed the will in the. outer room. A. was the place where the deceased was. B. was the place where the witnesses wrote their names. Sir J. D Harding^ Q.A., and Tmss, in support of the will. — Every presumption is in favour of a due execution of the will ; the presence, if not actual, was constructive, and thei^e was nothing to 262 CASKS DETERMINED IN THE 1856. July 19th. August 4th. Norton V. Bazett. show that the testator did not move to some part of the room from which he might have seen the wit- nesses subscribe the will. The cases in which the question of presence has been considered may be divided into two classes, those in which the deceased was bedridden, or prevented from seeing by some physical impediment, in which the will has been pronounced against; and those in which, there being no physical impediment, the will was pronounced for, on the ground that as the deceased might have seen the witnesses, if he pleased, the presumption was that he did see them ; and the present case is of this latter class. (They cited Shires v. Glascock, 2 Salk. 688; Casson v. Dade, 1 Br. Ch. Ca. 98; Newton v. Clarke, 2 Curt. 320; Tribe v. Tribe, 1 Rob. 775; Hudson v. Parker, ib. 14; Tod v. Win- chelsea, 2 C. & P. 488 ; Winchelsea v. Wauchope, 3 Euss. 441.) Jenner and Deane, contra. — The distinction taken on the other side is unsound. The true principle to be extracted from the cases is this, that if all the persons concerned are in the same room, the act shall be presumed to have been done in their pre- sence ; and that presumption requires to be rebutted by proof that they could not, from some cause or other, see each other. But if the testator and the witnesses are in different rooms at the time of their respectively signing the instrument, then the pre- sumption changes, and you must show that they could, as they were placed, see each other. Thus, in Casson v. Dade, had the carriage not been put back, the proof would have failed. The true and only safe test is, whether the witnesses and the PEEROGATIVE COURT OP CANTEEBtJEY. 263 testator were within the line of sight ; unless this 1856. be proved, the execution is bad. (After commenting juiy igui. on the cases already referred to, they cited Davy v. Augusuth. Smith, 3 Salk. 395 ; Doe v. Manifold, 1 M. & S. 294 ; n^^™" In the goods of Ellis, 2 Curt. 395 ; In the goods of bazett. Colman, 3 Curt. 118.) Judgment. Sir John Dodson. The question in the present case is, whether the witnesses subscribed their names to the paper pro- pounded in the presence of the testator within the meaning of the word " presence" used in the 9th section of the Wills Act. The will is in the de- ceased's handwriting, on two sheets of paper, dated at the beginning the 13th, and at the end the 14th of July, as if he had been occupied two days in writing it out. The witnesses state that on the 14th he was busy in the inner room of his office writing on private affairs during the morning ; that in the afternoon he called them into that inner roora, from the outer room in which they sat, signed his name in their presence, and desired them to attest his signature, whereupon they returned to the outer office, wrote their names, and one of them brought back the paper. The door between the two rooms was open ; but it appears from the evidence, and the plan which was brought in, that the place where the deceased sat in the inner room, with his back to the wall between the two rooms, was not visible to the clerks standing at the desk where they wrote their names. They could not see the deceased, nor could he see them, unless he had got up from the chair, and moved some two or three steps towards the open 264 CASES DETERMINED IN THE 1856. July 19th. August 4th, Norton V, Bazett. door. The evidence is, further, that when the clerk who brought the will came into the room, the de- ceased had risen from his chair, but was standing in front of that chair — had in fact merely got up to sort hia papers, or for some such purpose; and there is no evidence whatever to show that he moved from the table to any part of the room from which he could see the witnesses. In the course of the argument many, if not all, the cases which could assist the Court in forming its judgment were cited. In Newton v. Clarke, 2 Curt. 320, the whole transaction took place in one small room, with only the curtain at the foot of the bed to interrupt the view ; and Sir H. Jenner held the will to be well executed, observing that it would be somewhat strange to say that what was done by a person in the same room, and in the hearing of another person, was not done in his presence. Hud- son V. Parker, 1 Rob. 14, has not, I think, any very great bearing upon the present case. Tribe v. Tribe, however, in the same volume, p. 775, seems, until closely examined, at variance with Newton v. Clarke ; but it is clear that in Tribe v. Tribe it was proved that the deceased could not by possibility have seen the witnesses, and on that ground it was held that although the witnesses subscribed in the same room, still they did not so subscribe in the presence of the deceased. I should observe that most of the cases cited by counsel were also cited in Newton v. Clarke. In 3 Curt. 118, there is the case In the goods of Col- man, which very closely resembles the present ; and I can find no more sure or certain guide for my instruction than that case. The only distinction is, that there the deceased could not have moved — PREROGATIVE COURT OF CANTERBURY. 265 here he was in a situation where he could not see 1856. without moving ; and upon this distinction it has j„iy 19th. been suggested that he might have moved, and then " ^°^' '^*^' he would have seen ; but there is no proof in support Norton of the fact suggested; there is no proof whatever bazett. that he did move ; and I think it is too much for the Court to presume, that in the short space of time occupied by the witnesses in signing their names he did move. The conclusion to which I must come is, that where the witnesses subscribe in a different room from that in which the testator is, they must be shown to have subscribed in a position visible to the testator ; that is not proved here, and I must pronounce against this will. I do so with much regret, but I have no discretion ; and judging for myself, and in my own conscience, I cannot hold that there was a constructive presence such as would justify this Court, whatever the Court of Appeal may do, in pronouncing for this will. VOL. I. 266 CASES DETERMINED IN THE In the goods of W. Gbeata. 15 ^ 16 Vic. c. 24 — Operative signature — Words below signature. 1^^^- On Motion. Nov. 14th. The deceased left a will, in which there was no appointment of executors. There was no attesta- tion clause ; and in the place where this clause is generally written were the words, "John Greata, executor," these words being written on the left of and a little lower than the signature of the testator. One of the subscribing witnesses deposed that the words were so written before the wiU was executed. On the 6th of November Deane moved for pro- bate to John Greata as executor. He cited In the goods of Powell, 1 Eob. 421, and submitted that since the words were not underneath, and did not follow the signature, they came within 15 & 16 Vic. c. 24, s. 1, and were entitled to probate. Sir John Dodson directed the motion to stand over, and on the 14th rejected the motion, observing that the words were not strictly speaking under- neath the signature, but they were below; and though they did not follow, they certainly did not precede the signature, therefore they could not be included in the probate. The case was so far for- tunate, that John Greata was one of the residuary legatees, so that he might take the administration with the will annexed. PREROGATIVE COURT OF CANTERBURY. 267 In the goods of John Tonae. Executor — Revocation of appointment. On Motion. John Tonar made his will witL. a codicil. By his will the deceased gave the residue of his pro- perty of every description to A. B. C. and D., upon the trusts in his will declared concerning the same ; and of his said wiU he appointed the said A. B. C. and D. executors. By his codicil he revoked the gift of the residue of his property so given to A. B. C. and D. and in lieu thereof gave the same to A. B. C. and E., upon the trusts in his will and the codicil expressed and declared. And he appointed the said A. B. C. and E. executors of his will, and confirmed the same in all other respects. Spinks submitted that as by the will A. B. C. and D., the residuary legatees in trust, were alone ap- pointed executors, the revocation by the codicil of the bequest of the residue to them, and the bequest of such residue to the said A. B. C. and E., and the appointment of the said A. B. C. and E. as executors, was a revocation of the appointment of D. as an executor by the wiU. Sir John Dodson. I perfectly agree with your interpretation, and decree the probate in accordance with the prayer. T 2 1856. Nov. 6th. 268 CASES DETERMINED IN THE 1856. CONSISTORY COURT OF LONDON. Jenktn v. Jbnkyn. Nov. 18th. Adultery — Verdict for goods supplied to the wife after she had left her husband^s house — Pleading. This was a cause of divorce, by reason of adultery, brought by the husband against the wife. Several pleas had been given in, and an allegation was now before the Court on behalf of the wife, pleading that " W. brought an action against the husband, for the board and lodging of and for money lent to the wife; that the husband defended the action on the ground of the wife's adultery; that the wife was exan)ined as a witness for the plaintiff and cross-examined by the defendant's counsel, and several witnesses examined on the defendant's part to prove the adultery, and notwithstanding their evi- dence the jury found for the whole amount claimed." Bayford opposed the admission of this allegation. Addams and Spinhs, in support Fraser v. Fraser, 5 N. C. 20, was cited, where the wife had been allowed to plead a verdict for the defendant in a crim. con. action. Judgment. Dr. Lushington. The present allegation is offered as responsive to Jenkyn, CONSISTORY COURT OF LONDON. 269 certain additional articles brought in on behalf of 1856. the husband : and if the matter of this allegation Nov. isth. be legal evidence, I am bound to admit it ; if it be j^^i, not, I am bound to reject it. There can be no doubt that verdicts against the alleged adulterer have been frequently admitted in pleading here — not however as proof of the adultery, but to show that the husband has not shrunk from exposing his witnesses to a vivd, voce examination in another court. But I repeat, the verdict is no evidence of adultery; and I well recollect a case before Sir H. Jenner Fust, in which he pronounced the husband to have failed on the ground that he had but a single witness; and though the husband had ob- tained a verdict and damages, yet he would not admit the verdict as adminicular evidence : Evans V. Evans, 1 Rob. 165. In Eraser v. Eraser the Court admitted the fact, that the husband had brought his action and failed — to be pleaded, not to show that no adultery had been committed, but to show that perhaps the verdict against the husband was founded on his neglect or connivance, But here is a verdict in an action between different parties, and for a totally different purpose. The very fact that the wife was examined shows that the jury gave their verdict from other facts which were brought before them, since she would not be a witness to prove her own innocence. All the usual objections to verdicts being pleaded apply to this case; and it would indeed be a grievous error to admit such an allegation. I therefore re- ject it Bayford applied for the costs of the allegation, but the application was refused. 270 CASES DETERMINED IN THE PREROGATIVE COURT OF CANTERBURY. In the goods of Ellen Steinorth. 1856. Nov. 22d. Administra- tion to the Crown's no- minee decreed, but not ex- tracted, re- volted at the instance of a creditor, with- out a fresh warrant ; and an administra- tion granted to the creditor, with the con- sent of the Queen's proctor, and upon the ori- ginal decree and advertise- ments on be- half of the Crown. On Motion. This deceased died intestate and without any known relation, and on the 26th of April adminis- tration was decreed to Her Majesty's nominee after the usual decree and advertisements. It was after- wards ascertained that the deceased had died almost insolvent, and the Queen's proctor declined to take out the administration. A creditor then applied for administration; and on his behalf, and with the consent of the Queen's proctor, the Court was moved to revoke the administration decreed to the Queen's proctor, and to decree the administration to the creditor, without compelling him to take out a fresh decree or advertise. But the motion was directed to stand over, on a suggestion that the administration granted to the Queen's nominee could not be revoked without a warrant under the sign manual. Deane renewed the motion, and referred to the case of John George Stockwell, in which case administration was, on the 6th of November, 184.7, decreed to Her Majesty's nominee. The Queen's proctor did not take out the administration ; and a PREEOGATIVE COURT OF CANTERBURY. 271 creditor then took out a decree with the usual 1856. intimation against the Queen's proctor ; and on the Nov. 22d. 28tli of April, 1848, no appearance being given to inthTiTodsof that decree, the administration was decreed to the „ ^^^^^ ' ^ Steinorth. creditor. Again, In the goods of Goldham adminis- tration was, on the 14th of June, 1849, decreed to Her Majesty's nominee; the Queen's proctor did not take out the administration; and on the 17th of January, 1850, the administration was revoked, and administration granted to a creditor. In neither case was a fresh warrant required. Sir John Dodson. If it had not been for the precedents referred to I should have hesitated a long time before granting this motion, which may now go as prayed. Ernest v. Eustace. Administration — Practice — Judgment — Simple con- tract creditor. On Motion. 1856. Nov. 22d. Sir W. C. Eustace died in February, 1855, whereajudg. 1 • Ml 1 T •! /~> /- 1 ment creditor leaving a will and codicil. Une oi the executors and a simple contract cre- ditor are both applying for administration, the Court will decree the administration to the simple contract creditor if his debt be the largest, and the majority of interests be in his favour. Ernest V. Eustace 272 CASES DETERMINED IN THE 1856. and the residuary legatee was abroad, and gave no Nov. 22d. appearance to a decree served in the Royal Exchange on his agent; the other executor renounces. The deceased died possessed of shares in the Universal Salvage Company, which, in the year 1848, was ordered to be wound up by a decree of the Court of Chancery, under 11 & 12 Vic. c. 45; and in November, 1848, Mr. Ernest was duly appointed official manager. The deceased was made a contri- butory; and in June, 1855, an order was made on him for payment of the sum of £23 15s., as a con- tributory, to the official manager. This order was alleged to have been since registered as a judgment. The death of the deceased having been notified to the Master charged with the winding-up of the company, be, in November, 1855, made a further order, directing the proper steps to be taken for obtaining letters of administration, with the will and codicil annexed; and the usual decree, with intimation, was thereupon taken out by Mr. Ernest as a creditor. Bayford moved the Court to decree the adminis- tration to Ernest, as a judgment creditor. (He referred to the Affidavit of Debt; The Orders of the Master in Chancery ; 11 ^ 12 Vic. c. 45, ss. 93, 95; and 1 # 2 Vic. c. 110, ss. 18, 19.) Addams, for Robert Fitch, opposed the motion, and asked for the administration to be decreed to Fitch, as a simple contract creditor to the amount of £115 Os. 6d. The will and codicil were brought in in obedience to a monition against the solicitors of PREROGATIVE COURT OF CANTERBURY. 273 the deceased, extracted by Fitch before any steps 1856. were taken on behalf of the official manager. Nov. 22d. Ernest Sir John Dodson. „ "• The question is, whether the administration shall be granted to a simple contract creditor for £105, or to a judgment creditor, assuming Mr. Ernest to be so, for £23 — the simple contract creditor being also the person in this case preferred by other creditors. I am not aware that there is any rule in this matter binding upon the Court. The registrar stated that the usual practice of the Court was to prefer the judgment creditor; but that I do not hold to be imperative upon the Court when the body of the creditors prefer the simple contract creditor, and the judgment debt is small. There are two cases in 2 Lee: Kearney v. Whitaker, 324; and Carpenter v. Shelford, 502, which, so far as the marginal note goes, seemed decisive as to the right of the judgment creditor; but when examined, they fail entirely, and leave the point untouched. In this case I shall not grant the administration to the judgment creditor, but to the simple contract creditor; and I take this course because the latter is the largest creditor, and is supported by a majority of interests. ECSTACE. 274 CASES DETERMINED IN THE In the goods of H. P. Collett. Practice — Executrix during widowhood — Executors 1856-7. according to the tenor. jan.23d; The deceased died in March, 1855, leaving a A. ap"^ted will in his own handwriting, of which he appointed cutrTx^urin' liis wife exocutrix " during her widowhood, and widowhood; so long as she shall continue unmarried." After C. and D. resi- ° ,. , , ^ , • it i duary legatees legacies to his Wife, he left his real and personal p"ay 'debts, ° property to residuary legatees, upon trust, among "e'a'y Other things, to pay debts and funeral and testa- expenses," &o. meutary expenses. The consent of the widow in alone proved, writing was made necessary in case the trustees out having ' thought fit to dispose of or convert any of the kavilg^BfeL"- property, or in case another trustee was to be wlu-HeU appointed. The widow proved the will in May, that c. and 'd. 1855, and died in September, 1856, without were executors according to having remarried. She left a will of which she ap- the tenor, and • . j l entitled to pro- pointed an executor. bate of A.'s will. Phillimore, for the residuary legatees in trust. — The residuary legatees in trust, by the direction in the will to pay debts and funeral and testamentary expenses, were constituted executors according to the tenor; they would therefore have been en- titled to have been joined in the probate with the widow in her lifetime, and after the death of the executor who proved would be entitled to come in to take probate: Grant v. Leslie, 3 Phil. 116; Lynch v. Bellew, 3 Phill. 424 ; In the goods of Fry, PREROGATIVE COURT OF CANTERBURY. 275 1 Hagg. Eccl. 80; Wms. Exors. 250; Harrison y. 1857. Harrison, 10 Jur. 278, 1 Rob. 406. Again, the Dec. 9th. widow had no transmissible interest ; the limitation J«°^3. of her executorship during widowhood, and so long ^ p''c^°°^'tt' as she continued unmarried, would prevent her ex- ecutor from keeping up the chain of representation : Bond V. Faikney, 2 Lee, 371. Bayford, for the executor of the widow The widow was executrix in the fullest sense of the word during widowhood. The contingency which might have determined her character as such not having occurred, she remained in the full enjoyment of that power up to the last moment of her life. Admitting that an appointment to pay debts and funeral and testamentary expenses would, standing alone, con- stitute an executor according to the tenor — still, in this case the limitations on the power of the trus- tees on those matters, where the widow's consent in writing was necessary, entirely altered their cha- racter. Judgment.' Sir John Dodson. On looking through the cases cited by counsel, I am of opinion that the residuary legatees in trust are, by the direction in the will to pay debts and funeral and testamentary expenses, constituted executors according to the tenor, and as such en- titled to take probate of the will of the deceased. That the consent of the wife was necessary to enable them to do certain acts does not seem to me sufficient distinction from the decided cases. Bayford asked for the costs of his party, on the 276 CASES DETERMINED IN THE 1856. ground that it was a question that could not be de- Dec. 9th. cided in the registry, and arose out of the am- *!l_ ■ biguous wording of the will itself. In the goods of H.p.coLLETT. yiR John Dodson decreed costs out of the estate- CONSISTORY COURT OF LONDON. Speatt v. Spratt. Pauper — Surgeon. Jan. 27. A surgeon was This was & causc of divorce by reason of adultery, admitted a . . pauper, and promotcd by the husband against the wife. The had no patients husbaud had been admitted a pauper; and the The°C()urtre. ^^^^ prayed that he might be dispaupered. An fused to dis- ^(.^ Qjj petition was brought in, from which it ap- paaper him on *^ o ? r the allegation pearcd that the husband was a surgeon, and had party, that he bccu recently discharged under the Insolvent "ami^ng anin. Dcbtors' Act. The wifc howevcr alleged that he was again in practice, and receiving or earning or at least capable of earning an income. The husband denied that he had any income whatever, and swore in affidavit that he had no patients since his discharge. come, CONSISTORY COURT OF LONDON. 277 Deane, for the wife, cited Walker v. Walker^ 1857. 1 Curt. 560. Jan. 27th. Spratt. Spbatt Tristram, for the husband The distinction "• between the present case and Walker v. Walker is, that here the husband cannot go into the market and sell his labour ; he must wait till patients come to him. In Walker v. Walker the man was a skilled artisan, and if he chose to work and earn an in- come, had nothing to do but to offer his labour and be employed. Judgment. Dr. Lushington. I think the counsel for the husband has taken the true distinction between this case and that re- ferred to. I entirely disbelieved the husband's statement in that case, that no one would employ him ; but in the absence of all proof to the contrary, how can I disbelieve the statement that the hus- band here has no patients, and consequently no income. The difference lies in the occupation of the two men. If proof can hereafter be given that Mr. Spratt is earning an income, the case may be brought before me again, but at present I cannot dispauper him. 278 CASES DETERMINED IN THE PREROGATIVE COURT OF CANTERBURY. Page v. Donovan and Hankey. ^^^^- Will— Execution— U Vic. c. 24. Feb. 9tb. The deceased The questioii before the Court, and raised on the ta France, and admission of an allegation propounding the will, nfme'^in ttie was, whether the signature of the deceased was in presence of a g^^„ pogxtion with tespoct to the end of the will so sufficient num- J ^ '■ ^ berof wit- as to give effect to that will under the 15 & 16 Vic. the end of the c. 24, s. 1. The wiU was prepared by a French radrf^a'not*/ notary at Bordeaux; and after writing the will, he which'foiiowed ^dded, on the same sheet of paper and immediately in the same following the end of the will, a notarial minute in sheet with the t mi -ii i i t t will, and which thcsc words ! ihe prcsBut Will has been dictated aiso'snbscribed by Madame Iiovelace, born Vanneck, to Mr. nesses— Held Vcrrifere Chaisy, the undersigned notary, who has agoodexecu. written it with Hs owu hand such as she dictated tion. it to him ; and who, after having finished writing it, read it over to the testatrix in the presence of the witnesses, who declared that she well under- stood it, and persisted in the dispositions which she had just made. All that is above expressed and mentioned took place in the presence of Mr. Pierre Cirode, tinman, of Mr. Matthieu Henri Hughes, stationer, of Mr. Jerome Latapie, ftirniture dealer, and of Mr. Pierre Mignel, sworn interpreter — all PREROGATIVE COURT OF CANTERBURY, 279 dwelling and living at Bordeaux, Rue Huguerie, 1857. the first at No. 9, the second at No. 4, the third at Feb. 9th." No. 6, and the last named at No. 61 — witnesses ^^ hereunto required, called by the testatrix, previously "■ informed by the notary of the conditions prescribed and for their capacity, of which an Act done and passed at Bordeaux, at the residence already men- tioned of the testatrix, the said day, the 14th of April, 1852, about three o'clock in the afternoon; and the testatrix has signed, with the four witnesses and the notary, the minute of these presents, which remains with the latter, after reading over the whole will already mentioned by the notary to the testatrix in the presence of the witnesses. The minute is thus signed : Maria Lovelace, Pierre Cirode, H. M. Hughes, Latapie Jerome, P. Mignel, and Verri^re Choisy, the latter a notary. Addams, in opposition to the admission of the allegation — Under 1 Vic. c. 26, s. 9, and es- pecially with reference to the construction put upon that section of the Act by the late judge of the Prerogative Court, probate would have been refused of this will as not duly executed ; but the WiUs Act Amendment Act subjects the case to different considerations. Section 1 of that Act enu- merates various circumstances, under none of which shall, the position of the signature of the tes- tator be held to affect the due execution of the will. But the position of the signature of the testatrix in this case falls within none of the enumerated circumstances, unless indeed it is the following : that the due execution of the will shall not be affected by the circumstance of the signature of the testator Page ». Donovan 280 CASES DETEEMINED IN THE 1857, being placed among the words of the "testimonium Feb. 9th. clausB, or of the clause of attestation." It may possibly be contended that the signature of the testa- trix is among the words of the testimonium or and attestation clause in this case. But such is not the fact. After the enumeration of circumstances, the Act proceeds : "And the enumeration of the above circumstances shall not restrict the generality of the above enactment.'' What is the " generality" of the enactment which is so not to be restricted by this enumeration of circumstances? If it had been this : " Every will shall, so far only as regards the position of the signature of the testator, be valid if the sig- nature shall be so placed that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will " — then perhaps this will would have been well executed. But the enactment is this : "If the signature shall be so placed at, or after, or following, or under, or beside, or opposite to, the end of the will as to make it apparent " — and so on. To let in the generality of the enactment, the signature must be in one of those positions. But the signature in this case is in neither of those positions. It is neither at, nor after, nor following, nor under, nor beside, nor opposite to, the end of the will. It is, and purports to be, not under the will, but under a notarial minute of the will having been written from the dictation of the testatrix, and of its having, when written, been read over to and approved by her in the presence of certain witnesses; and it is this minute, and not the will itself, that the signature of the testatrix and the signatures of the witnesses both are and purport to be appended to. PREROGATIVE COURT OF CANTERBURY. 281 Jenner, contra Even if the Act were not a re- 1857. medial Act, and entitled to a liberal construction, Feb gth. this case would fall within the very words of the ^7^ first section. The signature is at the end of the „ "• " Donovan minute, and the minute immediately follows the and will. The minute is but a publication of, and an attestation clause to, the will. Why was the minute written? To give effect to the will. Why was the minute signed? To complete and give effect to the whole. Then it is apparent on the face of the will that the testatrix intended to give effect by such signature to the writing signed as a will. But supposing there was no minute at all, but a blank space left where the minute now appears, still the signature would have effect under this Act. Judgment. Sir John Dodson. The argument against you was, that this signa- ture was written to give effect to the minute only, apart from the will. However, taking this as a remedial Act, I have no doubt that the signature is in a position to give effect to the will; and I ad- mit the allegation. VOL. I. u 282 CASES DETERMINED IN THE CONSISTORY COURT OF LONDON. 1857. Feb. 14th. The husband cannot deduct from perma- nent alimony sums paid by him on account of debts in- curred by the wife before the allotment of alimony pen- dente lite. Harmar V. Harmar. Deduction from alimony — Practice. This was an application on the part of the hus- band to be allowed to deduct from permanent alimony certain sums which he had paid for debts incurred by his wife before either the allotment or the payment of alimony pendente lite. Addams and Twiss for the husband. Bayford and Spinks for the wife. Judgment. Dr. Lushington. The parties to this suit were divorced at the instance of the wife, on the 2d day of July, 1856; and on the 8th day of August following permanent alimony was allotted, at the rate of £160 per annum. The citation was returned on the 10th day of November, 1855, and alimony pendente lite was allotted on the 10th day of February, 1856. It is alleged that the alimony (not specifying whe- ther alimony pendente lite or permanent alimony) has been paid as it became due. The first inquiry is, whether this fact so pleaded is true. As to Harmar HAajMAR. CONSISTORY COURT OF LONDON.' 283 s\]monj pendente lite, this averment is clearly con- 1857. trary to tlie truth, and so appears to be from the Feb. i4th. records of the court. I will not repeat at length the averments contained in the answer to the act on the part of the wife, and which are not contro- verted. The result is, that so far from the alimony being paid when due, it was only obtained after much delay and frequent application to the Court. I am somewhat surprised that under such circum- stances so erroneous a statem(;nt, if it refers to alimony pendente lite, should have found its way into these pleadings. With respect to permanent alimony, nothing whatever has been paid ; and therefore the allegation is, to use an expression scarcely sufficiently strong, wholly erroneous. It is under these circumstances, not certainly the most auspicious, that the Court is asked to stop the payment of permanent alimony, by deducting from it certain debts incurred before alimony pendente lite was decreed. I believe this application to be entirely novel; I am not aware of any case in which an application in any degree similar has been made to any Ecclesiastical Court. In Brisco v. Brisco, 2 Hagg. Cons. 199, Lady Brisco had incurred very large debts, for which her husband was made responsible, and that for the purpose of putting her husband to expense. There the application was made before alimony was allotted, and the Court very properly took the misconduct of the wife into consideration in allotting the amount of alimony pendente lite. This, however, is a very different case. Here I am asked to deduct from permanent alimony expenses incurred by the wife, principally on account of her maintenance from the period of u 2 284 CASES DETERMINED IN THE 1857. separation up to the allotment of alimony, which Feb. 14th, if dulj paid would exempt the husband from HHITAa responsibility. It is not alleged that during tbat Habmar. period the husband furnished the wife with any means of subsistence whatever ; and it is now esta- blished by the decree of this Court, that by reason of his cruelty, the wife was justified in separating herself from him. Under such circumstances, I will not enter into a consideration whether the expenses were extravagant or not ; the whole fault is at the door of the husband ; lie compelled her to leave his home, and left her without the means of subsistence, and so situated it might be difficult for her to get credit and live economically. But be this as it may, the application is altogether too late, and such a deduction from permanent alimony would be without precedent; and as many such causes must de faco have occurred, and no such application made, it is unwarranted by the practice of the Court. CONSISTORY COURT OF LONDON. 285 Campbell v. Campbell. 1856. 17 (S- 1.8 Vic. c. 47 — Practice — Condonation — Dday. March leth, ^ "^ 17th. Apr. 22d. This was a cause of divorce by reason of adul- ^^, " ?^"^,"' . •' rule, the Loart tery, brouslit by the husband against the wife. She "i'l ^'wys ac- iTTi- T !•• 1 cede to an ap. pleaded condonation ; and an application was made plication to 1 i 1 in f. • .,• , . ., examine wit- on her behalf, lor a requisition to examine witnesses nesses vivS in Italy and Australia. The libel was brought in ^^^^^^ ^°^^^ ^^^ on the 31st of November ; the wife's responsive pUcatioaisin- . , 1 /. 11 r 1 tended for the allegation was brought in on the 1 3th of March ; whole cause, and a further allegation, on the part of the husband, must be con! containing fresh charges of adultery, on the 14th f^ytnul^vit. of March. nesses are «- amined. Con- donation, or Addams and Twiss for the husband. coVagaUntel course, requires 7- J 7-» j^ ^1 •/' strict proof. In Jenner and JJeane tor the wiie. matrimonial causes there are T few reasons for J DDGMENT. delay. Dr. Lushington. Before I address myself to the particular cir- cumstances of this case, I think it right to make a few observations upon the 17 & 18 Vic. c. 47, which directs a particular mode of taking evidence in ecclesiastical courts which did not exist before. I am not surprised that there has not been a clear understanding as to this statute, because it gives no directions whatever as to the manner in which its provisions shall be carried into execution. It is manifest that it embraces the whole cause from the 286 CASES PETEBMENED IN THE 1857. beginning to the end, in part or altogether, and at March 16th ^^^^ time. The case may be heard entirely viva i7th.Apr.22d. vocB, OY in part by deposition or affidavit ; and the Campbell Court is at liberty, even after there have been Campbell, depositions or affidavits to examine the persons who made them viva voce. It appears advisable, when the application to take the evidence vivd voce is intended for the whole of the cause, that all the pleadings should be concluded before any evidence is received. A different course may be followed where the application is made in the course of the cause. With respect to applications of this kind, it is primd fade the duty of the Court to apply the Act, and direct the evidence to be given vivd voce whenever the application is made. This must be the general rule, for it is clear that the incon- venience of stating special reasons would be very great ; much delay and expense would be incurred ; and indeed such a course would in many cases be very prejudicial, as it might disclose the nature of the case. With regard to the proof of adultery in the present case, it appears to me wholly unneces- sary to enter into any detail of the evidence; indeed it is not and cannot be contended, that the proof of criminal intercourse is not clear and decisive. The parties were originally resident in Australia. In 1856 Mrs. Campbell with six chil- dren left Australia, and arrived in this country in April. Mr. Smithj who had been in partnership with Mr. Campbell, received her, and took her to lodgings at 17, Bloomfield Road. Mr. Garstin immediately made his appearance, and became an inmate of that house. There is no direct evidence how that acquaintance commenced ; but from the CONSISTORY COTJET OF LONBON. 287 declaration of Mrs. Campbell, she and her children 1857. received much attention from him during the March leth, voyage from Australia. Mr. Garstin remained in 1 7th. Apr. 22 . that house with Mrs. Campbell about a fortnight ; Campbell and in the beginning of May she with her children Campbem.. removed to No. 41 in the same street, and at No. 41 Mr. Garstin is again. On the 27th of May Mr. Campbell arrived from Australia, and joined his wife in Craven Street. About the 6th of June, having taken a house in Porchester Terrace, he removed his children, but Mrs. Campbell refused to accompany him. A few days afterwards a sister of Mrs. Campbell arrived in London, and by the joint persuasion of that sister and Mr. Smith Mrs. Campbell was induced to join her husband in Por- chester Terrace. According to the evidence of Mr. Smith, some time after Mrs. Campbell had gone to Porchester Terrace circumstances came to Mr. Campbell's knowledge which induced him to prosecute further inquiries ; the result was, that Mrs. Campbell left Porchester Terrace and went to the Colonnade Hotel, whence she was removed by Mr. Campbell to Hampstead, and there, so far as relates to the intercourse between Mr. and Mrs. Campbell, the history ends rather abruptly. That was in July. There is evidence of Mrs. Campbell living in various lodgings up to November, and Mr. Garstin constantly being with her. I am not about to recapitulate the acts of indecent familiarity, or the circumstances which lead to the conclusion that an adulterous intercourse was carried on be- tween the parties ; the proof of guilt is undeniable. Then what are the circumstances in this case which should induce the Court to delay pronouncing a 288 CASES DETEEMINED IN THE 1857. March 16th, 17th. Apr. 22d. Campbeli. V. Campbell. decree of separation ? The evidence already pro- duced on the part of Mrs. Campbell clearly wiU not suffice to establish condonation. Does justice require that I shall delay the decision of this cause until witnesses are examined in Australia and in Italy ? Upon what are they to be examined ? Not to prove Mrs. Campbell's innocence ; if that were the object, no expense, no delay, no inconvenience, would justly be a reason for refusing the present application ; but her guilt is admitted. The ques- tion is, whether there has been condonation of that guilt. Condonation is connubial intercourse with full knowledge of all the facts. Innocency and condonation are inconsistent pleas, but they may be pleaded. But the case then resolves itself into this : You cannot prove my guilt, but if you can you have pardoned me. It is pleaded on behalf of Mrs. Campbell, that from the 26th of June, and for several days afterwards, Mr. Campbell visited his wife at the Colonnade Hotel ; was seen to approach her for the purpose of kissing her ; spoke of having a bed made up for him in his wife's bedroom; that he remained in her bedroom for several hours, and renewed his conjugal intercourse with her. These averments are contradicted in plea by Mr. Campbell, on whose behalf it is pleaded that he never saw Mrs. Campbell at that hotel except in the presence of witnesses. Looking at the evidence, the Court is left somewhat in the dark as to what took place at that hotel; and certainly, so far as appears, Mr. Campbell did not act under the cir- cumstances with great discretion in having those interviews with his wife. Possibly that apparent indiscretion may be explained by the fact that this CONSISTORY COURT OF LONDON. 289 lady was at this time attended by a physician 1857, eminent for his treatment of diseases of the mind, March leth, and that the husband was seriously apprehensive on i^th. Apr.22d that account. But looking at the case as it stands^ Campbell has the Court good reason to believe that if the Campbell. delay asked were granted, the plea of condonation would be established? I have not from the plead- ings or the evidence the least reason to conclude that the witnesses now vouched will give any evidence material to the only issue remaining. What has the Court a right to expect, and what is offered? The most undoubted proof of conjugal intercourse ; and a statement, perhaps an affidavit, from the wife, upon which however I could not place much reliance, that the witnesses would depose to particular facts, which would leave no doubt of renewed intercourse; but this is wholly wanting. Nor does the case stand favourably in other respects. The citation was returned on the 18th of November; from the service of the citation she knew a defence must be prepared. On the 31st, the libel was brought in; she then knew the specific charges. Her proctor then applied that the witnesses might be examined vivd voce, and so posponed the ex- amination of the witnesses on the libel. But her defensive allegation was not brought in till the 13th of March, and that after repeated notices to her proctor, and though every fact was necessarily well known to Mrs. Campbell herself. For there is a wide difference in the matter of dealing between testamentary and matrimonial causes : in the first the facts and the evidence may be unknown to the party who has to set them up and procure it; but in matrimonial causes every fact and circumstance is 290 CASES DETERMINED IN THE- 1857. March 16th, i7.h.Apr.22d. courage Campbell V. Campsbll, known. The proctor fias used all diligence; his. party has not. It is the duty of the Court to dis- these delays, and, unless justice most clearly demands it, to prevent a wife putting her husband to expenses, which might in some cases be ruinous. I am satisfied that justice requires me to reject the prayer of Mrs. Campbell, which I do not think is well founded, and which, if granted to a wife admitted guilty, will impose a most onerous expense on her husband, and procrastinate this case to an indefinite period. I must conclude this cause and pronounce for the separation. PREROGATIVE COURT OF CANTERBURY. 1857. April 18th. Probate de- creed of draft copy of codicil, which had been burnt by testa- trix's order, with intent to revoke, but not in her pre- sence. ' Tn the goods of Ann Dadds (widow, deceased^. Will — Revocation under 20th section of Wills Act. This deceased died on 7th December, 1856, having made a will and codicil thereto, and thereof appointed Thomas Davis and George Sanders ex- ecutors. The codicil, executed in 1852, was at- tached with sealing-wax to the first sheet of the will, and deceased, within a week of her death ex- PREROGATIVE COURT OF CANTERBURY. 291 pressed to a niece, Miss Osborn, who resided with 1857. her, a wish and intention to revoke the same ; but V. ■ J • • XT. ^ £■ April 18th. being under an impression that some lorm was — necessary to be observed on the occasion, delayed ann dadds the revocation until she had an opportunity of d^^Ja°ed). consulting Mr. George Sanders, one of the execu- tors, about it. On the day of deceased's death Mr. Sanders and his wife, also a niece of the deceased, were at her house, when she in their presence re- peated her wish to revoke the codicil, and directed Miss Osborn, m ho had her keys, to fetch it from the drawer of a secretary in which it was locked up, and which was in a room below stairs. The will, with the codicil attached to it, was there found by Miss Osborn in an unsealed envelope, and handed to Mr. Sanders, who, on opening them, ob- served that the codicil was written on one side of half a sheet of foolscap paper, and in the hand- writing of Mr. Davis, the sole executor. Mr. San- ders then, in the same room below stairs, the de- ceased being in her bed in a room above, detached the codicil from the will and read the same, which bore the signatures of the deceased and of WilHam Hewson and Francis Hewson as attesting witnesses ; and on Mr. Sanders' suggestion that a disinterested witness should be present at the revocation, Catherine Harvey, a neighbour, was sent for, and attended at the deceased's house. Miss Osborn, accompanied by Catherine Harvey, then went up stairs to the deceased, who, in the presence of both of them, desired that the codicil should be burnt and destroyed ; but as there was no fire in the bed- room at the time, she directed that it should be taken back to the room below stairs for the purpose. 292 CASES DETERMINED IN THE 1857. Mr. Sanders being still in the room below stairs, the codicil was again handed to him ; and he being April 18th. . . ,. t n i t i, • i i • — again informed of the deceased s wish that it annDadds should be burnt, threw the codicil into the fire, i^^ed) whereby it was burnt and wholly destroyed, in the presence of his wife. Miss Osborn, and Catherine Harvey, but not in the presence of the deceased : so that the requirements of the 20th section of the Wills Act as to revocation were not observed, " or by the burning, tearing, or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same," and the codicil not legally re- voked. The only existing copy of the codicil was the original draft of it written by Mr. Davis, at the deceased's request and by her instructions, when she was on a visit at his house in the latter part of February, 1852, and which draft had been in Mr. Davis's possession ever since. Shortly after the deceased left Mr. Davis's residence at the period mentioned, he copied this draft out fairly for exe- cution on half a sheet of foolscap paper, and read it over, and as he did so compared the fair copy with the original draft ; but having varied the language in and made some additions to the copy, Mr. Davis made corresponding alterations in and additions to the original draft ; and the iaterlineations, oblitera- tions, and additions appearing in the draft before the Court were the alterations and additions then made by Mr. Davis, except the word " lives," obliterated in the 14th line of the first page of the draft, which was inserted in the copy and by mistake obliterated in the draft: there were some words appearing in pencil in the draft, inserted in contemplation of PEEROGATIVE COUET OF CANTEEBUEY. 293 further alterations in the copy, but which were not 1857. made therein. The codicil so prepared for execu- ; tion was inclosed in an envelope and forwarded by — post to the deceased with a letter from Mr. Davis, 'I^'n DArof wherein he brouerht to the deceased's notice and y'^°Z\ <-' deceased). directed her to fill in the blank spaces left in the codicil for the recital of the date of the will, and also for the date of the execution of the codicil; and Mr. Davis afterwards received information from the deceased, either by letter or otherwise, that the codicil had been executed by her. Some time in March, 1852, the deceased took a paper writing which was on half a sheet of foolscap paper, and which she described as a codicil, to the house of Francis Hewson, and there duly executed such paper in the presence of Francis and William Hewson, and then took the paper away with her. The deceased frequently mentioned, in the spring of 1852, to Mr. Sanders and Miss Osborn, that she had made a codicil, but they did not then see to it, Mr. George Sanders, who read the codicil before it was burnt, believed the draft as altered to be a true and correct copy of it. On the above statement, verified by affidavit, Middleton moved the Court to decree probate of the will and copy of the codicil without the ob- literation of the word " lives," and the interlinea- tion in pencil of the words " trust aforesaid" in the said copy, limited until a more authentic copy of the said codicil should be brought into and left in the registry of this court, to be granted to Mr. Thomas Davis and Mr. George Sanders the execu- tors. SiE John Dodson decreed probate as prayed. 294 CASES DETERMINED IN THE In the goods of Sarah Leach {widow, deceased). Practice. 1857. May 5th, 14th. L. appointed R. sole exeou- trix and resi- duary legatee. R. died with- out proving, and appointed A. and B. exe- cutors. A. alone proved R.'s will, power being reserved to B.— Held, that B. must be cited as well as A. before administration with will an- nexed of L. could be granted to a ' legatee. On Motion. Sarah Leach died on the 20th of October, 1856, having made her will, dated 20th of December, 1844, and therein appointed her daughter, Mary Jeffs Read (wife of George Read) sole executrix and residuary legatee. Mrs. Read died in the lifetime of the testatrix, leaving issue living at the time of the death of the testatrix ; and the residuary bequests thereby became vested in her under the 33d section of the Wills Act. Her husband, Mr. Read, survived her and is since dead, having made his will and appointed Charles Poulton and Edmund Pullein executors, but Poulton alone proved the will in August, 1856, power being reserved to Pullein, the other executor. Under these circum- stances H. A. Deane, a legatee, applied for and ob- tained on the 19th of February a decree with intimation against Poulton (as the sole legal personal representative of Mr. Read, who was the husband of Mrs. Read, the daughter and residuary legatee of Sarah Leach) to accept or refuse letters of ad- ministration (with the will annexed) of the goods of the said testatrix. The question raised was whether Pullein, who had not proved, should not be cited as well as Poulton, who had disappeared. May5th, 14tb. CONSISTORY COURT OF LONDON. 295 Bayford moved the Court for a decree against 1857. Poulton only, as the acting executor and sole legal personal representative of the testatrix. In the goods of Sakah Leach Sm John Dodson. (tra'" I am clearly of opinion that the administration should not be decreed without citing the executor to whom power has been reserved. The citation must, therefore, be taken out against him, as well as against the acting executor. CONSISTORY COURT OF LONDON. Anonymous. 1857. Imjpoteney — Responsive allegation — Pleading. May 16th. This case came on for hearing on admission of The husband the wife's responsive allegation in the circumstances ofnumtyof fully set out in the judgment. "asonlf Impo. tency, against Addams and Twiss for the husband, in opposition *g J^ ^ 'i^Jj" to the allegation. swer matters in '-' contradiction Jenner and Phillimore, for the wife, contra. band's case, and also the adaltery of the husband. — Held, that it was not competent to the wife to plead the husband's adultery at that stage of the cause. Anonymods. 296 cases determined in the Judgment. 1867. J)jj_ LUSHINGTON. jyj igth_ The only, question which I have now to decide is, whether the responsive allegation given in on the part of the defendant is or is not admissible in whole or in part; but it appears to me that I cannot properly decide that question without looking to the whole proceedings in this case, and briefly re- ferring to the principles and authorities applicable to cases of this description. This is a suit brought by the plaintiiF for the purpose of having his mar- riage with the defendant declared null and void, by reason of her incurable malformation and con- sequent inability for sexual intercourse. An ap- pearance having been given to the citation, a libel was brought in on January 17th. I now propose to state what I apprehend to be the contents of and objects sought to be ascertained by the libel and allegation. The libel stated the marriage to have taken place in July, 1840, plaintiff being at that time 27 years of age, and the lady past 21. It pleads cohabitation save as to sexual intercourse at various places in England, Ireland, the Continent, and Canada; that they so cohabited, save with occasional separations, until January 19th, 1855; and then, in the usua,! form, the inability of the lady for sexual intercourse from unnatural contrac- tion. The 7th article pleads special/acts to account for the delay in bringing irhis suit : it pleads that the plaintiff was aware of this defect, but believed it to be capable of remedy ; that plaintiff consulted divers medical persons, who so assured him that he re- mained in that belief until he was informed to the contrary by medical persons who had been consiilted by defendant; that this information was received CONSISTORY COURT OF LONDON. 297 May Kith. ANONyMOUS. shortly before the month of January, 1855; that 1857. he thereupon separated himself from her, and gave instructions for the suit before he went on service to the East; that he returned in June, 1856; and the citation issued, in August following. The 8th article pleads, in supply of proof, a letter alleged to have been written by the defendant in March, 1851, after consultation with Dr. R. The Court admitted this libel after consideration; and it is not necessary now to repeat the reasons which induced the Court so to do. It appears, however, that no witness has been examined upon it, nothing done ; why or where- fore the Court is not informed. In this Easter Term an allegation was given in on behalf of the defendant, the admissibility of which was debated on May 7th. The objects sought to be attained by this allegation were twofold : it pleads facts which, it has been con- tended, ought to bar the husband from prosecuting and succeeding in this suit; and, further, certain facts which will entitle the defendant to a decree of separation, on account of cruelty and adultery. These are two distinct and separate objects. It cannot be denied that defendant is entitled to plead all facts which could bar the suit of the husband : whether she is entitled to proceed for a divorce by reason of adultery and cruelty, is a question subject to different considerations. I have said that de- fendant is entitled to plead all facts which can legally bar the husband from succeeding in his suit. That some facts would have this effect no one can doubt, as, for instance, denial of malformation, averment of sexual intercourse. But there are other facts which, in this as in all other cases of a similar kind, when offered as a bar to the suit, give VOL. I. X Anonymous. 298 CASES DETERMINED IN THE 1857. rise to questions of great difficulty. Such a case ~Mr~i6th~~ ™^y^ ^^ generally described to be of this kind. True it is that the wife may be incapable of sexual inter- course, but the husband is barred by his delay or other conduct. This is the doctrine laid down, as I apprehend, in B. v. B., 1 Eccl. & Adra. Rep. 248. So far is clear. But when the inquiry is pushed farther, and it is asked what is the delay and what is the conduct which shall bar the suit, I feel that all is involved in doubt and obscurity. If I consider the question of time, I do not find that any period has been fixed. If I look to other circumstances I am still more in the dark, for I am not aware of any authority which has attempted to define them. I know nothing more painful than to have to exercise a judicial discretion without landmarks to guide the judgment. If I look to the principle by which the institution of these suits is governed, it affords me little light to discover my way in such a combination of facts as now presents itself. What is the prin- ciple, the foundation, of the right to claim a decree pronouncing a marriage void where one of the parties is incapable of consummation? It is partly stated in the case already referred to; and to that judgment I am justified in referring, for it is the judgment of all the Judicial Committee who heard the case: first, because the great chief purpose of marriage cannot be fulfilled ; secondly, because by such a marriage the temptation to evil courses is not removed; thirdly, because in some cases, especially where the defect is on the husband's side, continued cohabitation would be destructive to the health and comfort of one of the parties. There was one such case a few years since of a very distressing CONSISTORY COUUT OF LONDON. 299 May 16th. Anonymous. character. There are many other reasons which I 1837. need not recapitulate. If either party cognizant of disability married, the Courts have considered the so doing such a wrongful act, that they have condemned the party in costs. The Judicial Com- mittee in B. V. B. laid down a general proposition, that such a suit may be barred ; and it is equally my wish as it is my duty to carry out that judgment, to which I was not only a party but in which I was the organ of the Court. But there are in- herent difficulties in the subject matter which ren- der the application of the principles so laid down a very anxious task. Time is one. What combi- nation of circumstances constitutes insincerity, another. Assuming all the facts in this allegation proved, do they together form such a state of facts as the Judicial Committee intended to be comprised within the general principles laid down? Except in case of extreme old age, it is obvious that the re- fusal to allow a remedy on account of the remissness of the husband, though he personally may not be en- titled to complain, leaves untouched one reason for entertaining the suit, the prevention of illicit inter- course. Then, with regard to what is called in some preceding cases, and in B. v. B. the insin- cerity of the suit, I have great difficulty in saying what would constitute insincerity and what sin- cerity. Suppose a man anxious for issue, that motive would not constitute insincerity. Suppose a man anxious to marry another woman, I could not hold that to be insincerity. Suppose a man to indulge in illicit connections, could that be proof that he was insensible to the incapacity of his wife for conjugal intercourse? I do not think that pro- X 2 300 CASES DETEEMINED IN THE 1857. position maintainable ; it might rather bear the May 16th. other way. Could such criminal connection alone Anonymous, ^^1" the suit ? No such argument has ever been advanced, and there is no precedent for so holding. Insincerity is therefore something different. I can- not attempt to define it ; it must be a combination of circumstances which show that the alleged grievance was not the motive which led to the commencement of the suit, but what would con- stitute such a case cannot be defined beforehand. Governing myself so far as I can by the judgment of the Judicial Committee, and being of opinion that after the lapse of so many years the wife is entitled to a large indulgence for her defence, I think it right to admit — first, so mucb of this allegation as contradicts tlie malformation ; secondly, so much as may possibly form a bar to the suit, on the ground of the conduct of the husband showing it to be insincere. I will presently point out the ar- ticles which I think ought to be admitted, some with reformation. I will now address my attention to the important question, which has been raised in this suit for the first time, namely, whether the wife proceeded against can allege adultery com- mitted by the husband, and pray a separation from bed and board on that account, and that too at the same time when the other question which neces- sarily arises in such a suit as this is under inves- tigation and not decided, the validity of the mar- riage. The absence of all precedent, where similar cases must have occurred, calls upon the Court to be careful that it does not establish one without great consideration ; for the presumption is, that there would have been a precedent if, in the opi- Anonymous. CONSISTORY COURT OP LONDON. • SOI nion of the profession, such a course of proceeding 1857, could have been maintained. We all know that May leth. in suits for separation by reason of cruelty or adul- tery, the first thing to be proved is the marriage ; it is called the foundation of the suit. If the mar- riage be denied, it must be proved before the pro- ceedings can go further ; publication of the evi- dence as to the marriage is decreed, and the ques- tion of marriage decided before the suit goes further. The usual and appropriate issues in a cause of this description are : Is the malformation proved ? and is the party proceeding barred per- sonali exceptione ? Suppose this allegation admitted as it stands, two things must be proved to justify the Court in pronouncing for a separation: first, that there has been a valid marriage ; secondly, that the husband has committed adultery. But suppose that it should be proved, as is pleaded in this case, that the husband is barred personali ex- ceptione, such a decision would prevent, whatever be the merits of the case and truth of the charge, the husband from obtaining a decree of nullity j but would such circumstances authorize the Court to pronounce the marriage valid ? I exceedingly doubt if the Court could do so, and such a decree I apprehend to be indispensable to a decree for divorce. But suppose another state of things, that the malformation should be proved as well as the bar, could the Court pronounce for the validity of the marriage under such circumstances ? That I do doubt exceedingly. Take the third case, that the malformation was disproved, and the bar proved also, there would then be less difficulty, but still in eifect the proceeding would be the commencement 302 CASES DETERMINED IN THE 1857. of a new suit. It may, however, be asked. In what May 16th. position is a woman left when the husband from Anonymous ^"7 cause has failed in a suit of this description? la she without remedy ? I think not where the mal- formation is disproved. I think that in such case the wife would be clearly entitled to bring a fresh suit for divorce, and that the husband would be barred from setting up the malformation by the decree in the former suit. "What would be the case if the wife brought the suit after a decree that the husband was barred personali exceptione, but the malformation proved, I will not venture to speculate • upon : it is a very different thing to pronounce affir- matively, and to dismiss a suit by reason of a bar. I will now examine the cases cited. Best v. Best, 1 Add. 411, determines only that where a suit is brought, the basis of which is a valid marriage, as for cruelty, the husband may plead the wife's adul- tery, not only as a defence, but also for the purpose of obtaining a decree for separation against her. In Rohins v. Woheley, 2 Lee, 149, Sir W. Wolseley sued his wife for a divorce for adultery ; she denied the marriage, and pleaded that it was void by reason of a prior marriage. Sir G. Lee was of opi- nion that Sir W. Wolseley should not be permitted to prove the adultery till the question of marriage should be disposed of. This is a strong case ; for Sir W. Wolseley was prior petens, and moreover he asked to examine witnesses de bene esse, whose evi- dence he might have lost. Sir G. Lee said it would force the wife into a suit, whilst it was still sub judice, whether she was subject to such suit or not. I think this case has some bearing on the present, because here the validity of the marriage is denied CONSISTOEY COURT OF LONDON. 303 by the husband; and he commences this suit to 1857. prove its validity, and until that question is decided May leth. it cannot be known whether he is, to use Sir G. anoT^ous. Lee's words, subject to such a suit or not ; that is, a suit for separation by reason of adultery. I am unable to perceive any distinction as relates to this question between a void and what is called a voidable marriage ; a voidable marriage is equally void ab initio, but for civil consequences there must be a decree pronouncing it so to be. In Guesi v. Guest, 2 Hagg. Cons. 822, the validity of the marriage had been already pro- nounced for in a cause of divorce, and Lord Stowell held that it was a bar to a suit of nullity by rea- son of malformation. But the decision would have little bearing upon this case were it not for the expressions of Lord Stowell ; speaking of divorce by reason of adultery, he says : " The validity of the marriage is the foundation of the whole pro- ceedings ; there can be no adultery if there was no marriage." It has always been held, both here and at common law, that the first point to be proved is the marriage ; to which I will add, that if in a suit for adultery the marriage be denied, it must be proved before the party can go into evidence of adultery. Mayhew v. Mayhew, 2 Phill. 11, is to the same effect. Clowes v. Clowes, 2 N. C. 77, is to the effect, that in a suit of nullity, if the libel be rejected, the wife may give in an allegation praying restitution ; and if the libel here had been rejected I should not have doubted that the wife, without further citation, might have prayed for restitution, or proceeded for a divorce for adultery. In Cat- terall v. Catterall, 5 N. C. 468, 1 Rob. 304, 9 Jur. 304 CASES DETERMINED IN THE 1857. 951, I rejected the libel pleading tte nullity of the May 16th. marriage, but allowed the husband to proceed with Anonymous. ^ ^^^^ ^^^ divorce by reason of adultery. But the distinction between this and other cases is, that in this case the validity of the marriage is a question pending before the Court, and undecided. In Cat- terall v. Catterall the question of marriage was disposed of. The results of these cases were two- fold : first, if the marriage be denied, that question must be disposed of before evidence can be taken as to adultery or cruelty ; second, that without fresh citation the Court may, in any matrimonial suit where the validity of the marriage has been dis- posed of, receive an allegation pleading adultery or cruelty, and separate the parties if it be proved. Therefore, I am of opinion, both upon principle and authority, that I ought not now, at this stage of the cause, to admit the article pleading adul- tery to proof; but I am equally clear, for the same reason, that the Court might possibly come to a decision in this case which would justify the Court in receiving this, or an allegation to the same effect. This allegation must therefore be reformed by omitting the article pleading adultery. Were I to admit them hoc statu (I mention, this not as a reason guiding my judgment, for that is governed by the reasons already stated), the husband could not defend himself by pleading condonation of the wife's adultery, which matters would require con- sideration. Dr. Phillimore pressed the Court not to order an inspection. I am very sensible how painful this must be to any lady, and certainly would make no such order save ex dehito justitice. If the allegation had pleaded merely matters in bar, CONSISTORY COUET OP LONDON. 305 not putting in issue tlie malformation, I might 1857. have deliberated whether I would not have delayed May leth. ordering the inspection until publication had passed j^non^ocs. as to the plea in bar, for if that plea were good and proved there would: have been an end of the suit ; but this allegation puts in issue the malfor- mation, and all the facts to prove the contrary : how is it possible I could receive evidence on one side, and not legal evidence on the other ? It was said in the course of the argument that Professor S. had seen the defendant since the suit commenced ; that may be so, but still that is ex parte evidence only as to the evidence between the parties. There is stni an additional reason the defendant has brought with reference to this very question of malformation, a most serious charge against the plaintiff. She has charged him with having caused an appearance of malformation, by giving her the venereal disease. Surely it would be against all justice to allow that article to go to proof, and not permit the plaintiff by the only possible process to rebut that charge, and prove his original case. I shall admit all exhibits which are in the hand- writing of plaintiff ; they are legal evidence, and their applicability to this case will be best discussed when publication on the whole case passes: one article will be sufficient for the purpose of intro- ducing these exhibits. 306 CASES DETERMINED IN THE PREROGATIVE COURT OF CANTERBURY. RuDALL V. Waeken (by his Guardian). 1857. Will — Void devise and bequest attending it — Gift over — Administration. May 26th, June 4th, Where a devise This WHS a busmess of granting letters of ad- a charitlJr ministration (with the will annexed) of William l^dtndeV' H^l^' deceased, promoted by Sarah Eudall, wife of Mortmain Act, Thomas James Rudall, the sister and only next of a bequest to i> ^ • -i ■\ -\ • tt residuary lega- km of the Said deceased, agamst William Hall carry"out"the ° Warren, a minor (by Emma Badnell, his guardian Kfliiftoo! lawfully appointed by the High Court of Chancery), and a bequest claiming to be the residuary legatee named in the over, where the , , ° jo prior bequest Said will. contlngencieJ The deceased died on the 23d October, 1856. t'ptvmed The will was dated in October, 1853; by it for by the tes- j^g bequeathed all his real and personal estate, of tator, is also -"^ _ ■■• ' void. Admin- whatsocver kind, to William Unsworth and John istration, vfith . , . ,t i c -i • will annexed, Atkiuson, " to be my executors oi this my will ; orkinin°pref ^ud I do appoint the said Messrs. Unsworth and duary kg°atee!" -^tki^son, their cxccutors, administrators, or as- for the purpose gigus, my exBcutors or administrators to this mv of carrying out .n ,. -.r tt i t i i the intended Will. Mr. U nsworth predeceased the testator, and " "" ^' Mr. Atkinson renounced probate and execution of the will. The deceased died a widower without child or parent. PREROGATIVE COURT OF CANTERBURY. 307 The clause on which the present question arose 1857. was as follows : — " I will that my freehold house, May 26th. No. 71, Queen's Road, Bayswater, be given to the J"^""- inhabitants of Bayswater to found a lying-in asylum b^dall for unmarried women, or poor married women, if Warren. there is more than three beds to spare. I will that there shall be no paid parson, priest, or chaplain, whose services is not given gratis, attend the said asylum. I will that the same be called ' Hall's Ma- ternal Asylum for Unmarried Women.' I will that my said executors do call a meeting of the neighbours and inhabitants of one mile round the said house, as soon as convenient, to appoint a committee and trustees to carry out the same. I do appoint my godson, William Hall Warren, one of the said trus- tees, leaving to the inhabitants to make choice of as many more as they please. But in the event of the said inhabitants not appointing a committee, or not willing to carry out the same scheme, I then mil that all my said property so given to said maternal retreat or lying-in asylum shall absolutely belong to my said godson, William Hall Warren ; and I will that the deeds of the said house be. given to the said trustee or trustees. I will that the said trustee or trustees be my residuary legatees to this my will." The will proceeded to give further legacies — some to the legatees only for life, to revert " to my residuary legatee or legatees for asylum mentioned." There was no further disposition of residue. It was agreed that the devise of the freehold house was void under the Mortmain Act. Deane, for Mrs. Rudall, the sister and only next 308 CASES DETERMINED IN THE 1857. of kin of the deceased, contended that a personal j^ 26th bequest attached to a void charity as an endowment June 4th. must fail with the principal : Attorney-General v- Rddall Whitchurch, 3 Ves. 141; and Attorney-General v. Warren. Hinxman, 2 Jac. & W. 270. In the latter case Sir Thomas Plumer held that a bequest of money in trust for the use of a schoolmaster was void as being connected with the devise of a freehold house as the residence of such master. Further, that when in such a case there is a gift over of the per- sonal property, and the prior gift fails, not through the contingencies contemplated by the testator, but through an operation of law not foreseen by him, the gift over fails also: Philpotts v. St. George's Hospital, 21 Beavan, 131, where the Master of the Rolls concluded : " I wish that my view of the will should appear perfectly clear and distinct, viz., that the original gift fails by reason of its being contrary to the Statute of Mortmain, and that the gift over fails by reason of the events on which that gift over is directed to take effect not having arisen." Bayford, contrh, contended that William Hall Warren appeared on the face of the will to be the residuary legatee ; that it would be for the Court of Chancery to determine whether he was beneficially entitled or otherwise. He referred to White's Law of Legacies, c. 24, and prayed administration, with the will annexed, to be granted to the guardian of W. H. Warren, now a minor, the residuary legatee named in the said will ; but if the Court should be of opinion that the said Warren was not residuary legatee, that this guardian should have adminis- PREROGATIVE COURT OF CANTERBURY. 309 tration as guardian to him, a principal legatee 1857. named in the said will : for he submitted that the ~ " ' May 26th. Court was not bound by the statute, in the case of June 4th. administration with the will annexed, to grant it to rcdali, the next of kin ; and that there were reasons in this -vp^aREN. case, as appeared by affidavits, why the Court should not grant it to Mrs. Rudall. Judgment. Sir John Dodson. Considering the words of the will and the cases cited, I am clearly of opinion that the bequest attending the void devise fails, and the bequest over to Warren under these circumstances will also be of no effect. Neither does it appear from the whole will that Warren is residuary legatee or one of the residuary legatees, except for the purpose of carrying out the scheme for the charity; he has no beneficial interest in this character; and the next of kin is entitled to the grant. It has been contended that there are reasons in this case for the Court to depart from the ordinary rules it has laid down for itself in such cases, and to pass over the next of kin. It certainly appears that neither the deceased's sister nor her husband are very fit people to be intrusted with the administration of property; but as in this case they can only act under the direction of the Court of Chancery, no inconvenience can arise from that; and there is no sufficient reason to depart from the ordinary rules. I decree adminis- tration with the will annexed to the sister. Costs of both parties out of the estate. 310 CASES DETEEMINED IN THE Ceuttwell awd others V. Clancy. In the goods 0/ Alfred Bkettle (deceased). _^ Will — Appointment of executors and trustees — Codicil — Fartial revocation. June 12th. A., by will and The deceased in this case died on the 31st Octo- appointed'four ^^r, 1856, having made his last will and testament executors and ^j^.}j three codicils thereto, and therein named exe- trustees, and ' left them £500 cutors and trustees, as follows: — each. By a second codicil By his will, dated the 18th November, 1852, he b! and*D."in appointed and named Francis Burdett, Esq., Charles offteoTigi"^" Sedley Burdett, Esq., Thomas Cruttwell, and Ro- executors and ^crt Cruttwell, cxecutors and trustees, and thereby trustees, and ' ■' varied the bequeathed to them, as such executors and trustees, accordingly?^ the sum of £500 cach. dfherevtked' % the first codicil, dated the 18th April, 1855, any codicil or j^q testator bequeathed certain pecuniary legacies, codicils em- _ '■ r J a ? powering B. to but did not alter the appointment of the executors act as trustee, , • n mi and appointed and trustecs 01 his said Will. trust"es°andex. ^y the second codicil, dated the 24th July, 1856, *°Heid on a *^^ testator appointed John Clancy, the younger, view of all the Esq., and WiUiam Augustus Sadler Pemberton, papers, that the . . ° n ■• . .-,.,,., third codicil joiut trustccs and exccutors 01 his said will with tion oni'y°oT" the Said Thomas Cruttwell and Robert Cruttwell, ment*^and n*o't ^^ ^^^^ ^°^ ^^ P^*^ °^ *^^ ^^^^ Fraucis Burdctt and of the whole Charlss Scdloy Burdett, whose legacies he thereby codiciun which i i i i it was con- cxpressly revoked, and gave the same to the said John Clancy and W. A. S. Pemberton, as a compli- ment for undertaking the trusts and executorship of his said will. PREROGATIVE COURT OF CANTERBURY. 311 The third codicil, dated 21st October, 1856, in the testator's own handwriting, was in the follow- ing words : — " I, Alfred Brettle, residing in Paris, at number Ninety-one, Champs Elysees, declare that I revoke any codicil or codicils to my will empowering John Clancy, Esq., to act as one of my trustees to the said will. And I appoint Colonel Francis Burdett, mentioned in the said will, one of my trustees and executors of the same. " Alfred Brettlb. " Witness, Robert Burdett. " Witness, William Willis. " Paris, 21st Oct., 1856." Annexed to the affidavit of scripts was a letter from the deceased to Mr. Pemberton, as follows : — " 91, Champs Elysees, Paris, 9th Sept., 1856. " My dear Pemberton — I wish you to receive this communication with a strictly professional view. I wiU thank you if you shall have prepared for my signature, before your expected arrival in Paris, a codicil to my will (in your possession), composed of a few words, stating that I entirely cancel the appointment of executorship on the part of John Clancy, Esq. (identification following), to my said will, and that I appoint in his stead Francis Burdett, late lieutenant-colonel in Her Majesty's service (identification to follow), to act in concert with the two executors named by me in a previgus will executed by me, to wit, Thomas Cruttwell, solicitor, of Bath, county Somerset, and Eobert Cruttwell, solicitor, of Bath, county Somerset, and with William Augustus Sadler Pemberton, Esq., of 1857. June 12th. Cruttwell and others V. Clancy. 312 CASES DETERMINED IN THE 1857. 1^0. 8, Southampton Street, Bloomsbury Square, June 12th. Loudoii, solicitor, appointed by me in a subse- Cru^ell quent will co-executors with others, the said AND oTHEKs ^_ j^ g_ Pembcrton, now holding possession of Clancy, the Same, SO that the executors of my will shall be as follows : — " Thomas Ceuitwell, Esq. " Robert Cruttwell, Esq. " William Augustus Sadler Pemberton, Esq. " Francis Burdett, Lieutenant-Colonel. " The above mentioned to receive the sum of £500 sterling each from my estate." These instructions were never carried out by Mr. Pemberton, owing to the unexpected illness and decease of the testator, and were only embodied in the above recited third codicil drawn by the testator himself. On the 3d of September of Hilary Term, Robarts, as proctor for Thomas Cruttwell, Robert Crutt- well, W. A. S. Pemberton, and Francis Burdett, alleged them to be executors named in the said will and codicils, and prayed probate thereof accordingly. An appearance was given for John Clancy, Esq., alleging to be one of the executors ijamed in the second codicil, and praying he might be joined in the probate. The usual steps were taken till the second session of the present term, when a proxy of renunciation under the hand and seal of Mr. Clancy was exhibited, and it was declared that he pro- ceeded no further. PREROGATIVE COURT OF CANTERBURY. 313 Accordingly Deane moved the Court to decree probate of the will and three codicils of the deceased to be granted to the said Thomas Cruttwell, Eobert Cruttwell, "W. A. S. Pemberton, and Francis Bur- dett, the executors named therein. The only diffi- culty was, whether the words of the third codicil did not entirely revoke the whole of the second codicil. From the letter to Mr. Pemberton it was clearly the testator's intention only to revoke so much of the second codicil^ as con- tained the appointment of John Clancy, and to substitute Colonel Burdett. He submitted that, under such circumstances, a testamentary Court would not shut out any duly executed paper, but grant probate of it, and leave it to the Court of Chancery, if necessary, to determine its operation. Sir John Dodson granted the motion as prayed. 1857. June 12th. Cruttwell and others ». Clancy. VOL. I. 314 CASES DETERMINED IN THE In the goods of Jonas Welch {deceased). 1857. On Motion. June 12tb. Will — Codicil — Date of will misrecited in codicil. A. made a wiu JoNAS "Welch, of Banburv, made a will dated the m September, ' •' ' • • -m 1854, another 4tn September, 1854, prepared by his solicitor Mr. 1855^ inaco'di- Aplin, of BanbuTj. On 14th February, 1855, he FebraS,^'"' ^^^^^^ ^* ^^- Aplin's office with this wiU, and 1857, the latter instructed him to make certain alterations therein. will was re- ferred to as of Mr. Aplin findine that the testator only wished to September, , . ^ ° , . i , ,. 1854. substitute one executor and trustee m the place oi the circum- " another, and to make slight alterations in some forth^ to^be pecuniary legacies, did not make a draft of a new error of the will, but with a peucil made the alterations in ques- elerk who drew . , • • -i -ti ^ ^ m t n i -i the codicil, tion On the original will of the 4th beptember ; and the will oT ° from this will so altered a new wUl was then and r855""ranted ^^^^^ engrosscd and executed by the testator. A codicil was at the same time drawn up and executed, giving a legacy of £50 to Mr. Forbes, but no draft was made. The will and codicil were then inclosed by Mr. Aplin in an envelope, and taken away by testator. Prior to this 14th February, 1855, the testator told Mr. Brickwell (his most intimate friend) that he had appointed him his executor and residuary legatee, and shortly after the 14th Feb- ruary, 1855, the testator told Mr. Brickwell that he had made another will, and he then gave him an envelope sealed up, which he said contained his will; and Mr. Brickwell, by his desire, placed PREROGATIVE COURT OP CANTERBURY. 315 it in a tin box containing the testator's private 1857. papers ; he at the same time gave Mr. Brick- ju„e 12th ■well a paper writing, folded up, which he said — was ms lormer will, and told him to burn it, Jonas Welch which Mr. Brickwell then and there did in the tes- ^ "''"''* '' tator's presence, but he did not open or read it. On the 12th February, 1857, Mr. Aplin, by desire of Mr. Welch, called on him at his house and found him very unwell, and he then directed Mr. Aplin to prepare a codicil to his will bequeathing a legacy to his servant Elizabeth Burnham. Mr. Aplin being very busy, told his clerk, John Barton, to prepare a codicil to Mr. Welch's will to the above effect for immediate execution. Mr. Barton searched the papers in Mr. Aplin 's office for the former will, and finding the draft will of the 4th September, 1854, and none of a subsequent date, and not remem- bering that the testator had made a will of later date, he presumed that to be the date of testator's will, and accordingly described such codicil as a codicil to the will of the testator, dated " on or about the 4th September, 1854." The codicil thus prepared was taken at once by Mr. Aplin to the testator, who executed it in the presence of Mr. Aplin and two of his clerks. Prior to the exe- cution Mr. Aplin read the codicil over to the tes- tator, and asked whether the date of the will was correctly recited, to which the testator answered, " Yes ; it's all right ;" but did not refer to the will. This codicil was left with the testator, and after his death delivered by his servant to Mr. Aplin, and by him to the executor's solicitors. Mr. Welch died on 20th February, 1857 ; Mr. Brickwell was constantly with him during his last illness, and Mr. Y 2 316 CASES DETERMINED IN THE 1857. Welch then told him that at his death his will would be found in his tin box, and that there was T__ « O^Vt ' - — ' a codicil giving £50 to Mr. Forbes, and told him to Jona^Welch take charge of the box at his death and gave him (deceased). ^]^g ]jgy_ ^j.^ Brickwell h,eard of the execution of the last codicil, but did not see it until after tes- tator's death, when, on opening the tin box, Mr. Brickwell found the envelope sealed up as he had placed it there, and on opening it, found the wiQ and codicil of the 14th February, 1855, but no other testamentary paper. He made a careful search among all the testator's papers and repositories, but has not found the will of 4th September, 1854. Mr. Aplin searched his papers with a similar result. These facts were verified by the affidavits of Mr. Aplin, Mr. Barton, and Mr. Brickwell, who further swore to their belief that the reference in the said codicil to the date of the will, as being the 4th Sep- tember, 1854, was an error, and that the testator meant and believed it to be a codicil to his will of 14th February, 1855, and that from illness and pre- suming the date must be correctly recited, he did not refer to his will or discover the error. Deane moved for probate of the wiU of 14th Feb- ruary, 1855, and the two codicils. Sir John Dodson. I have no doubt that the reference in the second codicil to the will of 4th September, 1854, is an error of Mr. Barton, caused by the draft of that will remaining in Mr. Aplin's office and unnoticed by the testator at the time of executing the codicil, and decree probate as prayed. PEEEOGATIVE COURT OF CANTEEBXTRY. 317 In the goods of Petee Rainiee, Esq. {deceased). On Motion, Administration with will annexed — Administration 1857. hond — Inventory and account. June 20th. Petee Rainiee died in April, 1836, having made Application to a will and codicil, and tlierein named his widow court oi^Can- Elizabeth Crow Rainier, John Rainier, and John flrm"Ind°aiiow Bowler, executors and trustees. "? account of ' administration After giving certain legacies to his wife and exe- "ith win an- cutors, the deceased dealt with the residue of his declare the ad- personal estate in moieties : — As to one moiety, he bond nu'und bequeathed the interest thereof to his wife for life ; ""gj-'on'thaf and after her death, the principal thereof absolutely *e property ,. , , /-. 1. T^ . • /-(•,. undertbewill to ms daughter Uarolme Kamier, now Caroune wasfniiyad. -r .1 -1 T._L» r 1 • • 1 ministered. — Jones, widow, on the condition oi her surviving her Heu, that the mother, and attaining the age of twenty-four years, ^"thorityto"" which events happened. The other moiety of the ''«'='«''« *« residue the testator bequeathed to his executors, in void, trust to pay the interest and dividends to his said daughter Caroline for her life ; and on her mar- riage, in trust to settle the same for her separate use for her life, and after her death to and among her children, subject to certain provisoes. Mrs. Rainier, the widow, alone proved this will and codicil, and acted in execution of the trusts thereof. Mrs. Jones married in July, 1841, her late husband, by whom she has four children, minors, 318 CASES DBTEEMINED IN THE 1857. now living. By her marriage settlement, Mrs. Jones, with the consent of her husband, assigned. — ' the moiety of the residue, to which she would ^" 'peter''"'^ become absolutely entitled on her mother's death, Rainier ^ ^^ trustces therein mentioned, in trust for the (deceased). -^ benefit of such of her brothers and sisters as should survive their mother, and they were Peter Eainier and Ellen Catherine, afterwards wife of William YoUand. No mention was made in that settlement of the other moiety, bequeathed to Mrs. Jones and her children ; but Mrs. Eainier, as the acting trustee of the said estate, continued to hold such trust funds until her death, in October, 1852. In May, 1853, letters of administration (with the will and codicil annexed) of the goods of the de- ceased left unadministered by Mrs. Rainier the' widow were granted to Mrs. Jones, on her exhibit- ing an inventory and her sureties justifying to the amount of a moiety of the deceased's unadminis- tered estate; and the usual administration bond was given by her husband and by William Pot- tinger and Archibald Weir, as her sureties. Messrs. Pottinger and Weir, the solicitors of the parties, having required some security from Mr. Jones to cover their responsibility as to the sureties to the administration bond, Mr. Jones, by indenture in April, 1854, directed, limited, and appointed an estate called Knolton Hall, with its appurtenances belonging to and vested in him, to Messrs. Pot- tinger and Weir, to hold them for a term of 1000 years, upon trust, and as an indemnity for any losses they might be put to by reason of such their suretyship, with the proviso that, upon the per- PREROGATIVE COURT OF CANTERBURY. 319 formance of sucli trusts, the term should cease and 1857. determine. june 20th. In May, 1855, on the petition of Mr. and Mrs. xn thirds of Jones and the other parties interested, an order ^^■•'^^ , y~ /. /^i . ■ Rainier was made by the Court of (Jhancery, appomting (deceased). R. P. Jones and the Rev. Ambrose Jones trustees of the estate of Peter Rainier, Esq., deceased. The estate left unadministered by Mrs. Rainier consists of the stock and moneys set forth in the inventory thereof made and sworn to by Mrs. Jones, and about to be exhibited to the Court ; the moiety thereof passing under the deceased's will to Mrs. Jones absolutely, she has paid over to her brother and sister, pursuant to the covenants of her mar- riage settlement, and the other moiety she has paid over to the new trustees of the deceased's estate appointed by the Court of Chancery, to be held by them in trust for her and her children, as directed by the will, so that the deceased's estate has now been fully administered ; and by an indenture of release, dated 26th May, 1855, those parties have respectively acknowledged to have received the sums of money and stock therein and in the said inventory stated, forming together the deceased's estate heretofore unadministered, and have dis- charged Mrs. Jones as administratrix therefrom, so that the deceased's estate has now been fully ad- ministered, and Mrs. Jones has duly made and sworn to an account, setting forth such her distri- bution thereof. Mr. Jones died in January of the present year, having duly executed his will, and therein named his wife, Mrs. Jones, executrix, who has since proved the will in the Prerogative Court. As such 320 CASES DETERMINED IN THE 1857. executrix she is desirous of selling the estate of June 20th. Knoltou Hall, and it has been advertised for sale ; In theT^ds of ^^^ ^^^ ^^^ purposes of a beneficial sale thereof, it Peter jg of great importance that the term of 1000 years, (deceased). Created therein for the benefit of Messrs. Pottinger and Weir should determine, and be reassigned to attend the inheritance of this estate ; but it appears that they declined to reassign it, on the ground that the bond to which they became sureties is still in force. Phillimore moved the Court that the accounts of the administration on oath by Mrs. Jones might be allowed and confirmed by the Court ; that Mrs. Jones might be discharged from further suits in respect thereof; and that the bond given by her husband and his sureties, on such administration being granted to her, might be declared null and void, and of none effect. He admitted that, as to pronouncing the bond null and void, he could find no case precisely in point as a precedent, but cited Towage v. Skelton, 3 Hagg. 782, and Archbishop of Canterbury v. Tappen, 8 B. & C- 151, as showing by analogy how the testamentary Court deals with administration bonds. He sub- mitted that all the conditions of the present bond had been complied with, and that, as there was nothing remaining for it to operate upon, the Court would be warranted in declaring it null and void. Sir John Dodson was of opinion that, as to declaring the bond null and void, he had no power or authority so to do ; and it was impos- PREKOGATIVE COUET OF CANTEEBCRY. 321 sible to say that no questions should hereafter 1857. arise under the administration. As to the ac- jnne20th. count, it was very inconvenient to allow and j^(.^~„jj„f confirm it merely on the ex parte statement of t>^^JJ^\ the administratrix herself, and without the par- (deceased), ties interested being cited. However, when he should be satisfied that all these were before the Court, or cited, and that the account was correct, he should have no objection to confirm and allow it. N.B. — In this case, the trustees appointed by the Court of Chancery appeared by a proctor, who exhibited a proxy under their hands and seals, and acknowledged that they had received the several sums of money and stock in the be- fore-mentioned inventory account and deed of release. 322 CASES DETERMINED IN THE Alfoed V. Alfoed {by her Committee). Intestacy — Administration — Widow and next of kin — Committee of lunatic widow. July 6th. A.diedintes. PniLrp Alfoed died intestate, without child or rate, without ' child or parent, parent, on the 11th February in the present year, widow, his bro. leaving him surviving his lawful widow Eliza entitled in dit" Alford, his brother James Alford, three sisters, and tribution, hrni ^^q nieccs, children of a deceased brother ; so that surviving. The ' * widow became the widow would be entitled to five- tenths, the lunatic, and a i i i • i committeeof brother to one-tenth, the three sisters to one-tenth e8t'ate"Ts''ap"- sach, and the two nieces to one-tenth between them Court of Chan! °^ ^^^ deccased's personal property. The present eery. On the questiou was to whoiD the grant of administration question or ' ° grant of ad- should be made? It appeared that shortly after was Held, that the husbaud's death, it was thought necessary to preferenceTx. Temovc the widow to a lunatic asylum ; and by an ercisedbythe inouisition Under the authority of the Court of discretion of ^ •' the Court in Chaucery, dated 21 st March, in the present year, widow would Eliza Alford, the widow, was found to be a person committee,™n- 0^ uusouud mind, and not competent for the k?n couirshow ^a^nagement of herself or her estate ; and Charlotte special cause to Elizabeth ParsoDS, the widow of a deceased brother of Mrs. Alford, now living as housekeeper in a gentleman's family in Portland Place, was appointed committee of her person and estate. The deceased's personal property was under £4000 in value, prin- cipally consisting of leasehold houses. James PREROGATIVE COURT OF CANTEKBCRV. 323 Alford, the brotlier, had been coachman in several ^857. gentlemen's families, and was now a cab or fly juiyeth. driver. a^d The grant of administration was claimed for the j^j^/^^^ use and during the lunacy of the widow by Mrs, Parsons, as the committee of the person and estate of the lunatic widow, fully representing her, and so preferably entitled according to the usual practice of the Court in the exercise of its dis- cretion under the Act, 21 Hen. 8, c. 5, s. 3, by James Alford, as one of the next of kin, and holding the proxies of the rest entitled in distribution, on the ground that the lunacy of the widow would determine the discretion of the Court in favour of the next of kin. The personal qualification of the respective parties was also matter of discussion. Addams and Spinks for the committee of the widow. Deane and Swabey for the next of kin. It was admitted in argument, that there was no decided case exactly in point ; but it appeared from the statement of the deputy registrar, that it is the practice in the registry to grant administration on the application of the committee of a lunatic widow without citing the next of kin. Judgment. Sir John Dodson. The first question is, whether the Court has any power of choosing between the parties. I think the result of the discussion that has taken place at the bar is, that it is in the discretion of the Court V. Alford, 324 CASES DETERMINED IN THE 1857 to grant the administration to either of the appli- juiy eth. cants. It appears that the practice in the re^stry alford is to make the grant to the committee of the widow without citing the next of kin ; the Court, how- ever, is not bound by that practice, but may, where the next of kin appears and shows sufficient reason, grant administration to them. I am in- clined to hold the committee of the widow entitled preferably, as the widow herself would be, unless good cause is shown by the next of kin ; and on a full consideration of the special circumstances of the present case, I see no sufficient reason to deprive the committee of the widow of that pre- ference. I grant the administration, limited till the lunacy ©f the widow determines, to her com- mittee. I make no order as to costs. PREKOGATIVE COURT OP CANTERBURY. 325 Maddock V. Allen. Will — Unattested paper — Reference to, by subsequent 1857. dvly executed codicil. July 9th. This was a cause of proving the last will of a. signed a Anne AUen, formerly Foote, widow, wife of Joseph for her wiu, in Emanuel Allen, late of New King Street, in the „as attested city of Bath, deceased ; promoted by Sir Thomas ^•it°"gj ""^ Herbert Maddock, one of the executors named i^^e, on the , .^ day before her therein, against Mr. I.E.Allen, the husband of death, she duly the deceased. The will, in the handwriting of the codicil " to my deceased, was dated 1st December, 1851, and [esLmen*!" attested by only one witness, and so by itself ^""^ p^p^f of jL •' T , n 1 rt II 1851 was not invalid. The codicil, dated 13th September, 1856, produced at the the day previous to the testatrix's death was duly w^s^exe^cuted!' signed and attested by two witnesses. The ques- afterT'I""""* tion was whether, under the words of the codicil death in a T 1 • /> 1 ^ • f 1 Ml locked chest in and the circumstances of the case, the informal will her room ; the was so sufficiently referred to and identified as to drawer, on a acquire validity from the due execution of the twTpaplrs, codicil. Her property was just over £2000. The ^"^ "^ *''- , , . ,, . . . dence of the papers were propounded in an allegation given in circumstances on behalf of Sir Thomas Herbert Maddock, which factum"oVthe pleaded-— 1. The settlement on the marriage of ""HeidTthat the deceased with Mr. Allen, under which she was *''/p*p^'°« ' _ 1851 was sum- empowered to dispose of certain property by will, c'entiy identi. 2. The custody of the original indenture. 3. A wiii and testa- ment referred to by the codicil, and that it required validity from the due execution of the codicil. 326 CASES DETERMINED IN THE July 9th. Maddock V. Allen, 1857. copy of such indenture in supply of proof and the identity of the parties. 4. The factum of the will, that it was written by the deceased herself on the day it bears date, and was signed by her in the presence of F. "W. Hoare, who in her presence, and at her request, subscribed and attested the same. 5. That the codicil was drawn up by her directions and instructions, and duly executed and attested on the day on which it bears date. 6. That since 1846 she had lived apart from her husband, Mr. Allen, since which time she had assumed her maiden name of Foote, and had been generally known by such name and no other (the will and codicil were signed by her in that name). 7. That after separating from her husband she declared her intention of benefiting her relatives by will, and frequently spoke of Sir Thomas H. Maddock as the friend who would manage her affairs in case of her death, and that since 1851 she spoke of having made her will, and of having appointed Sir Thomas an executor. 8. That the testatrix, in executing her aforesaid codicil to her will, meant and intended to confirm and give efifect thereto, and that by the words " This is a codicil to my last will and testa- ment" appearing written at the beginning of the said codicil, the testatrix meant and intended to refer to her aforesaid will as being such will. 9. That the testatrix having been in a state of ill health for some short time before her death, became seriously ill on the 8th September, 1856, and on the following day was attended at her residence in Bath, by Mr. F. Field, a surgeon, who visited her daily from that time until her death, which took July 9lb. Maddock V. Allbn. PREEOGATIVE COURT OF CANTEBBUEY. 327 place on the 14th of the same month ; that on the 1857. morning of the previous day the testatrix being desirous to make a codicil to her will, spoke to Mr. Field on the subject, and in direct allusion to her will, addressing him, said, " T wish you to do some- thing for me in respect to my wUl," or to that effect ; and Mr. Field having consented to comply with her desire, proposed visiting her again in the course of the same day, and he accordingly did so, when testatrix entered on the subject of her riches, and stated that she desired to leave something to her servant, and also some other trifling legacies to friends; and added, " I wish to do this by a codicil to my wiU." From the dictation of the testatrix Mr. Field then proceeded to write the codicil, and on reaching that part in which the testatrix desired that her servant Eliza Baker should have as much furniture as her executor might deem sufficient for furnishing a sitting room and bed room, he inquired of the testatrix who was the executor of her will, when she immediately rephed, " Sir Thomas Her- bert Maddock,'' and at the same time said there was another executor, but did not mention his name, and added that Sir Thomas Herbert Maddock would be the acting person. That the codicU having been completed and executed as pleaded in the 5th article, the testatrix on being asked by Mr. Field where the will was deposited said, " Oh, my will is in safe keeping." And then by her direction the codicil was placed in a chest of drawers in the testatrix's bedroom, and locked up therein. 10. That on the occasion pleaded in the next preceding article the testatrix was very ill, and was fully aware that her life was in danger, and that her Allen, 328 CASES DETEEMINED IN THE 1857. death might oecur in a very short time; that in "jX^th allusion thereto she requested Mr. Field imme- — diately on her death to apprise her fiiend Sir ». Thomas Herbert Maddock, whose address she gave him, of the event; and at the same time directed the servant Eliza Baker to take charge of her keys, and not to give them up to any one except Sir Thomas Herbert Maddock. 11. That testatrix had in her possession several Indian trunks, two of which, bearing an inscription on a brass plate, " No. 1, Mrs. A. Foote," and " No. 2, Mrs. A. Foote," were exactly similar in size and appearance, and were kept locked in testatrix's bed room; that about a week before her death the trunk No. 2 was removed from such bed room into a bed room adjoining and communicating therewith, and was so removed to make room for a sofa for the use of testatrix. 12. That testatrix died on Sunday, 14th September, 1856; and that Mr. Field immediately communicated the fact to Sir Thomas Herbert Maddock, who shortly afterwards arrived at Bath, and repaired to the testatrix's residence, and caused a search to be made for the will and codicil, and that in a small box in the Indian trunk No. 2 was found, with other papers, the will now marked A, and propounded in this cause, inclosed in a sealed envelope, with indorsement, "Mrs. Anne Foote's Will ;" and that in a drawer of the chest of drawers in the bed room of the testatrix was found the codicil now marked B ; that diligent search had been made as well in the Indian trunks Nos. 1 and 2, as in all other depositories of the testatrix, and all due inquiry made with regard to testamentary papers, and that no other paper of a testamentary character Maddock V. Allen. PREROGATIVE COURT OP CANTERBURY. 329 of the testatrix, save the will and codicil pleaded, 1857. had been discovered. 13. That the testatrix, when juiy gth. she alluded to her will and declared that Sir Thomas Herbert Maddock was an executor thereof, and further declared that such will was in safe keeping, meant and intended the very will so found in the Indian trunk, No. 2, and, with the aforesaid codicil propounded in this cause, as the last will and testament and codicil thereto of the testatrix. The will, dated 1st December, 1851, left pecuniary legacies to certain persons of the name of Drew, her brothers and nephews, and certain articles of jewellery to friends, and appointed " the Rev. — Wood, Curate of Christ Church, of Bath, and Sir Thomas Herbert Maddock, executors thereof." The codicil was as follows : — " This is a codicil to my last will and testament. I bequeath to my faithful servant Eliza Baker, now residing with me at No. 29, New King Street, in the city of Bath, the sum of one hundred pounds, with as much of my fur- niture as in the opinion of my executor will be sufficient to furnish a sittingroom and a bedroom ; I bequeath the sum of one hundred pounds to Nicholas Drew, residing in the city of Worcester, tailor. This legacy is to be duty free. I bequeath one hundred pounds to Edward Drew, of the city of Bristol, brightsmith. This legacy to be duty free." The Drews seemed to be two of those to whom legacies were left by the will. The codicil went on to bequeath certain articles of furniture and dress — some to Mr. and Mrs. Taylor, friends and neighbours of testatrix, who were in the room at the time of its execution. The codicil was subscribed by Mr. Field and VOL. I. z V. Allen, 330 ' CASES DETERMINED IN THE 1857. Thomas Hull, an inmate of the house in which July 9th. testatrix died. mI^ock The evidence of F. W. Hoare, the subscribed witness to the will of Eliza Baker, of Mr. Field, of Mr. and Mrs. Taylor, and others, sufficiently established the plea, and they were not cross- examined. Phillimore and Deane, for the executor, contended that the executor in this case had discharged the requirements which the principles applicable to such references and decided cases laid on him : first, to show that the paper or document referred to was in existence at the time the duly executed paper was drawn up, which was not disputed in the present case ; secondly, that the reference must be distinct, and such as to leave no reasonable doubt on the mind of the Court as to the identity of the paper described; thirdly, to give reasonable negative proof that no other document is in exist- ence answering to the description. Jenner and Twiss, contrh, argued that on the face of the papers the reference was not absolute or free from doubt, and that since the Wills Act the Court would be very cautious in admitting parol evidence to supply the formal execution required by the statute: Smart v. Prujean, Q Ves. 561; Utter- ton V. Robins, 1 Ad. & Ell. 431; In the goods of Lady Durham, 3 Curt. 57; Ferraris v. Lord Hertford, 3 Curt. 468 — on appeal, 4 Moo. P. C. C. 366; Ingoldhy v. Ingoldby, 4 N. C. 493; Sheldon v. Sheldon, 1 Eobert, 81, were cited. Allen. prerogative court of canterbury. 331 Judgment, 1857. Sir John DoDSON. j„iy 9*. Maddock The Court certainly has not the same extent of . "• liberty as it had before the Wills Act in dealing with testamentary papers. Then the intention of parties, however arrived at, was the polar star to guide the Court in coming to a con- clusion. It is now more strictly tied ; but I have yet to learn that the executed paper must, on the face of it, refer to the other, so as to leave- no pos- sible doubt, and that no evidence of circumstances can be received. The sole question in this case is, whether the codicil so sufficiently refers to the unduly executed will as to make it a component part of itself. The contents of the instruments have been referred to as supporting one another. Certain legacies are increased by the codicil in accordance with her declarations as established in evidence. [Here the Court went at some length into the evidence, especially that of Mr. Field.] As to the discrepancy of her talking of Sir Thomas Herbert Maddock as her executor and as the person to manage her affairs, while in fact another executor was absolutely named in the will, it is clear that she did look upon Sir Thomas as the person whom she wished to act, and was likely to do so if he survived her. The will was not then before her, and had been made some years back. The request to Mr. Field to write immedi- ately on her death to Sir Thomas, explains her view of the matter. On the whole, I have no reasonable doubt that the will of 1851 was the document referred to in the codicil. There is no trace of any z2 332 CASES DBTEEMINED IN THE 1857. other document. Eliza Baker mentions a still July 9th. earlier will made in favour of deceased's sister, but maddock ^^® ^^^o distinctly states that that was destroyed . "• after the sister's death. I cannot thinkthat the Court is so barred of its discretion as not to be free to con- sider the circumstances under which the codicil was made. In th e Marquis of Hertford's case there were several codicils, some duly executed and others unduly executed, and it was held that the expres- sion in the last duly executed paper, " I hereby confirm all my wills and codicils," would only apply to the duly executed codicils, because such papers were in existence to satisfy the strict meaning of the word. Here there is nothing before the Court but the one unattested paper. I decree probate of the two papers as together containing the last will and testament and codicil of the deceased. Costs out of the estate, as the suit was occasioned by the deceased's own act. CONSISTORY COURT OF LONDON. 333 CONSISTORY COURT OF LONDON. Anonymotjs. 1857. /. •/. -rw ■ . Aug. 13th. Impotency of wife — Decree for inspection. — Anonyuous. Jenner and Phillimore in support of the petition. Addams and Twiss contrh. Dk. LuSHINGTON. j„^g„,^t. I am of opinion that this case is brought before This case, the me, not upon any misapprehension of what the wMcra" °L Court did upon a former occasion, but upon an yjo'^'j.^^fbe expectation of what the Court would do, without <"<>« the Court , 1 T 1 n -I • n 1 on act on peti- the slightest foundation tor any such expecta- tion against the tion. I admitted the allegation of the wife deereffora after it had been twice reformed, because I was of "°"„s°the opinion that if the facts pleaded in that allegation ^^^^ to submit *• '- 111'"* personal were proved the suit of the husband would be examination. barred. Upon this admission of the allegation the proctor for the husband prayed a monition against the wife for a personal examination. The Court said nothing. Then the proctor for the wife prayed to be heard on his petition against the issuing the decree. The Court was surprised at that prayer, which appeared to be perfectly superfluous. Now, to my astonishment, comes before me a minute from the registry, in which the Court is made to say what it never did say or intended to say. The only question which I have to decide is, whether I 334 CASES DETERMINED IN THE 1857. Aug. 13th. Anonymous. shall order the inspection at once, or wait till after publication. I have no hesitation now, as I should have had no hesitation before, in refusing the monition for inspection at present ; and in so doing I am only doing what I am bound to do in sparing the feelings of the wife, where it is not absolutely necessary that she should submit to an examination. The husband will not be prejudiced by the delay, should it be necessary to have recourse to this inspection hereafter. ARCHES COURT. 1857. April 23cl. Denisos V. Ditcher. Dbnison V. Ditcher. Clerh in holy orders — Limitation of time in criminal proceedings under 3^4 Vic. c. 86. Held, that a This case Came before the Court of Arches on ** suit or pro-* ceeding" under appeal from a Sentence of the Archbishop of Can- 3&4Vic!c"86 terbury, acting for the Bishop of Bath and Wells, by thHervTcl undcr 3 & 4 Vic. c. 86, pronounced at Bath, in Oct., of the citation on the party accused, to appear at a certain time and place, before a competent Courts to answer certain de- finite charges ; that from the service of such citation the two years limited by the section must be 1 eckoned; that a commission to inquire, issued under the statute, and intermediate steps between the report of such commission and the citation, form no part of the same suit or proceeding. ISDN Ditcher. ARCHES COURT OP LONDON. 335 1846, by which the Venerable G. A. Denison was 1857. deprived of the Archdeaconry of Taunton and of April 23d. the Vicarage of East Brent, in the County of d^ Somerset and Diocese of Bath and Wells, for advisedly maintaining and afl&rming doctrines directly contrary to the twenty-eighth and twenty- ninth articles of religion, referred to in 18 Eliz. c. 12. The point here determined did not go at all to the merits of the case, but was raised on the question of lapse of time since the last offence charged on the construction of 3 & 4 Vic. c. 86, s. 20. This point was argued by Phillimore and Deane for the Archdeacon. They contended that the case was clearly within the limitation of the 20th section ; that the commission of inquiry was distinct from the suit or further proceeding; that though notice of the issuing of the commission and of its sitting was required by the statute to be given to the party accused, yet that the commissioners had no power to compel his attendance, or to inflict any punish- ment; that on the report of the commissioners neither Archbishop nor Bishop had power to punish without the consent of the party accused; that the filing the articles whether in the registry of Bath and Wells, or in the registry of the vicar-general of the Archbishop, and notice thereof given to the Archdeacon, did not call upon him to answer at any given time or place before any persons author- ized to adjudicate ; that such notice, the necessary commencement of a suit, was only effected by the requisition to appear at Bath, served on 10th June, 1856. V. Ditcher 336 CASES DETERMINED IN THE 1857. Bayford and Sjnnks, contra, argued that the issue April 23d. of the commission to inquire was the commence- Denison ment of the suit or proceedings mentioned in the Act ; or, if not that, at least the filing of articles in the registry of Bath and Wells, or the service of the copy of these on the Archdeacon; that the cases cited had come before the Arches Court by letters of request, which distinguished them from the present proceedings, and made them inap- plicable as precedents. Sherwood v. Ray, 1 Moore, P. C. C. 98 ; Bishop of Lincoln v. Day, 4 N. C. 299 ; Brooks v. Cresswell, 4 ^. C. 429; and Bishop of Hereford v. T , 2 Eobert, 595, were cited. The judgment contains a sufficient statement of various previous proceedings in the cause. Judgment. Sir John Dodson. This case come by way of appeal from a sen- tence pronounced by the Archbishop of Canter- bury, sitting pro hac vice as and for the Bishop of Bath and Wells, under the provisions of the statute the 3 & 4 Vic. c. 86, commonly called the Church Discipline Act. The proceedings in the case, so far as it necessary to state them for the present purpose, are shortly these. The Reverend Joseph Ditcher, Vicar of South Brent, in the County of Somerset, in the Diocese of Bath and Wells, having, on the 20th of October, 1854, made complaint to the Archbishop that there DiTCHEK. ARCHES COURT. 337 was a scandal and evil report against the Venerable 1857. George Anthony Denison, Archdeacon of Taunton, April 23d. and Vicar of East Brent, in the same county and dbnison diocese, for having offended against the statute of the 13th of Elizabeth, intituled, " An Act for the Ministers of the Church to be of sound Religion," by advisedly preaching and pubhshing doctrines re- pugnant to the articles of religion agreed upon in convocation in the year 1562. The prcesertim of the charges against the Archdeacon being that, on the 7th of August, 1853, and on the 6th of Novem- ber in the same year, 1853, and on the 14th of May, in the year 1854, he had preached three several sermons in the cathedral church of Wells, containing unsound doctrine, and that he had after- wards published the same. And Mr. Ditcher thereupon prayed that his Grace would grant a commission of inquiry into the grounds of the scandal; and it was agreed by the consent of counsel on both sides in the case that the time of the alleged offence having been committed should be limited to the first two sermons. The sentence appealed from related only to the first two sermons. The reason being, I presume, that there was not proof of the preaching and pub- lishing of the third sermon in the Diocese of Bath and Wells. Upon the 31st of October, 1854, a commission of inquiry issued by direction of the Archbishop. The commissioners accordingly met, and notice of such meeting having been given to the Archdeacon, he attended thereat. In January, 1856, the commissioners reported to the Archbishop that there was a sufficient primA fade ground for 338 CASES DETEEMINED IN THE 1 857. instituting further proceedings against the Arch- Aprii 23d. dcacon. The Bishop of Bath and Wells was then deniTon applied to to sign letters of request to the Arches Ditcher. Court; but he again declined to do so. Articles against the Archdeacon were then prepared and deposited in the registry of the Diocesan Court of WeUs; and also in the registry of the vicar-general of the Archbishop in London. The printed papers in this case contain the proceedings in this cause ; I find it set forth at length : — " The commissioners having made their report to the Archbishop of Canterbury, and the Bishop of Bath and Wells having been again applied to, and asked to take proceedings upon this report by sending the case to the Court of Arches, and having declined to do so, articles were prepared and deposited both in London and in Wells, on the part of Mr. Ditcher, and the Archbishop was pressed to constitute a Court, and to hear the case under section 11 of 3 & 4 Vic. c. 86. The Archbishop declined to proceed further in the matter, upon which steps were taken in the Court of Queen's Bench to compel him to proceed. The following are the dates of the several steps taken." This is a matter which has been dwelt upon very much in the argument, therefore I have stated it in the words of the book itself. Now, the dates were these. The rule nisi was applied for and obtained on the 22d of November, 1855. The rule was made absolute on the 24th of January, 1856; and peremptory on the 19th of April. The citation issued on the 5th of May from the Archbishop to the Archdeacon, summoning him to appear in London upon the 27th of May, 1856. The return to the rule was quashed ARCHES COURT. 339 Ditcher. upon the 26th of May, application having been 1857. made to the Court of Queen's Bench, and that Court April 23d. considering the return insufficient. An appear- de'^on ance in London was given to the citation upon the 27th of May, 1856. Upon the 5th of June, 1856, a requisition issued to the Archdeacon to appear at Bath, and this was served upon the Archdeacon on the 10th. Eventually a Court was formed by the Archbishop to sit at Bath. The notice or requisi- tion to appear at Bath is in these terms : — " I, John Bird, by Divine Providence Lord Archbishop of Canterbury, Primate of all England and Metropo- litan, in pursuance of a mandamus issued to me, and dated the 26th day of April, 1856, by her Majesty's Court of Queen's Bench, do hereby require you, the Venerable George Anthony Denison, a clerk in holy orders of the United Church of England and Ireland, Archdeacon of the Archdeaconry of Taunton, and Vicar of the Vicarage of East Brent, both in the Diocese of Bath and Wells, and the Province of Canter- bury, to appear before me either in person or by your agent duly appointed at the Guildhall, in the City of Bath, within the diocese aforesaid, at eleven o'clock in the forenoon of the 22d day of July,, 1856, then and there to make answer to certain articles filed in the registry of the diocese afore- said by the Eeverend Joseph Ditcher, clerk and Vicar of the Vicarage of South Brent, in the said Diocese of Bath and Wells, the party complainant, and whereof a copy was served upon you on the 4th day of August, 1855. Given under my hand, this 5th day of June, 1856 J. B. Cantuae." The requisition issued on the 5th; it was served Ditch EK. 340 CASES DETEEMINED IN THE 1857. upon the 10th of June; and on the 22d of July the April 23d. Court was opened at Bath, the Archbishop and his Dg~ ^ assessors forming the Court as required by the Act. Witnesses were examined upon the occasion, and counsel were heard. A*protest was given in on behalf of the Archdeacon, and that was argued and overruled. I think an application was m^ade to hear that in the first instance, and it was argued and overruled by the Court. And upon the 12th of August, in the year 1856, the Archbishop pro- nounced the doctrines set forth by the Archdeacon to be contrary to the twenty-eighth and twenty- ninth articles of religion; and called upon him to retract upon pain of deprivation; time being however allowed him for that purpose until the 1st of October thence next ensuing. The Archdeacon not having made the required retraction, the Court met upon the 21st of October to deliver its sentence. But a statement in writing, and also a further pro- test having been offered on behalf of the Arch- deacon, application was made to be farther heard thereon, which was granted. But the Court not deeming the same to be satisfactory, pronounced a sentence of deprivation, from which sentence the present appeal was brought to this Court. AppHcation has also been made to this Court by the learned counsel for the Archdeacon to be heard on the protest in the first instance, before entering into the principal case. It appeared to the Court, from the statement of the learned counsel, that one part of the protest, if well founded in law, might possibly dispose of the whole case, and it allowed that point to be first argued. Now, that portion of the protest which the Court Denison V. DlTCHEB. ARCHES COURT. 341 allowed, and which was assented to on all sides 1857. should be first argued, is to be found in the printed April 23d. papers. I wiU read it, for it is quite necessary that I should do so. It is the fifth paragraph of the protest, and it is in these terms : " That the suit or proceeding (if any) now pending before his Grace the Archbishop of Canterbury was commenced or instituted by the service upon the said George Anthony Denison, on the 10th day of June, 1856, of a certain instrument in writing or citation under the hand of the said Archbishop, dated the 5th day of the said month, and calling upon the said George Anthony Denison to appear at the Guildhall, in the city of Bath, either in person or by his agent duly appointed, at 11 o'clock in the forenoon of the 22d day of July, 1856, then and there to make answer to certain (pretended) articles therein alleged to have been filed in the registry of the Diocese of Bath and Wells, and of which (pretended) articles it is therein also alleged that a copy was served upon the said George Anthony Denison on the 4th of August, 1855 ; that the said pretended articles do not set forth any alleged offence, which was the subject of inquiry before the said commis- sioners, as having been committed by the said George Anthony Denison, within two years of such the commencement or institution of this suit, accord- ing to the provisions of the hereinbefore cited Act, and therefore the party accused cannot be called upon to make answer to the said articles." That was the ground of the protest, and it was founded upon the Act of Parliament, which has been referred to, the Church Discipline Act, and the 20th section I think of that Act, the 3 & 4 Vic. c. 86. 342 CASES DETERMINED IN THE 1857. The question, then, which was thus raised, and April 23d. which the Court is called upon to decide, depends denison upon what is the true construction of the statute, „ »• the 3 & 4 Vic, and especially of the 20th section of Ditcher. , , . }■ "', _ ... that Act, as applicable to the dates and circum- stances of this case. Now, by the 20th section of that Act, it is enacted, " that every suit or proceed- ing against any such clerk in holy orders for any offence against the laws ecclesiastical shall be com- menced within two years after the commission of the offence in respect of which the suit or proceed- ing shall be instituted, and not afterwards." Then follows a proviso, which I think does not apply directly to the present case ; but it is that part of the 20th section to which I have already referred, namely, that proceedings or suits are to be com- menced within two years after the offence alleged, and not at any subsequent time, " not afterwards." Now, then, the question is as to when this,'what- ever it is to be called, whether it is a proceeding or whether it is a suit, commenced against the Archdeacon — whether it was within the two years, or whether it was not; and what I have to consider is, what is the commencement of the suit or the proceeding? On behalf of Archdeacon Denison it is contended that the commencement of the suit or proceeding is referable to the service of the requisi- tion or citation on the Archdeacon to appear before the Court at Bath, that being the only Court which, under the circumstances, had authority to adjudicate between the parties. To that requisition I have already referred. That, the Archdeacon contends, is the first time that he is called upon in any suit or proceeding binding upon him, and therefore that V. Ditcher. ABCHBS COURT. 343 the commencement is to be dated from that period. 1857. On the other hand, it is said, for Mr. Ditcher, that April 23d. the commencement of the suit or the proceeding, p ~on whichever it is to be called, was first, the issuing of the commission by the Archbishop ; and if that was not the commencement of the proceeding or suit, then it must be considered that the suit commenced at the time of the filing of the articles in the Con- sistory Court at Wells, and also at the Yicar- General's Court in London ; and if the mere filing of the articles was not the commencement of it, then it must be taken that the service upon the Arch- deacon of the articles must be the commencement of the proceedings; because they contained a charge against him, they were served upon him, and there- fore that time must be held to be the commence- ment of the suit or the proceedings in the cause. It is between these two conflicting statements as to what is the commencement of the cause or pro- ceeding that the Court is now called upon to decide. With respect to the issuing of the com- mission of inquiry, whether that is to be held as the commencement of the cause or proceeding, or whether the requisition or the citation to appear at Bath is to be held as the commencement, is a very important point in the case. I must remark, in the first instance, that there is a very wide difference indeed between the issuing of a commission to inquire, and a proceeding against a party by way of punishment. The object of the commission, in the first instance, is to inquire whether there are sufficient grounds to make it advisable that " fur- ther proceedings" — as in one part of the statute DiTCHEK. 344 CASES DETERMINED IN THE 1857. it is stated — in another, that "proceedings" should April 23d. be instituted, or that " a suit" should be instituted jj~gj, or that " a suit" should be instituted against the party. Now the commissioners, though they have the power to inquire, to examine witnesses, and so on; and though they are to. give notice to the party who is charged with the offence, in order that he may attend if he thinks proper, have no power to compel his attendance, and they have no power whatever to inflict any punishment upon him, whatever the evidence may be that is given against him in the course of the inquiry which they have pursued. Neither has the Bishop, nor the Arch- bishop, nor any other person, any authority to punish for any offence that may be proved upon the evidence that is produced before the commis- sioners of inquiry, unless by the consent of the party himself. If the party defendant thinks proper to say, " I submit to the report of the commis- sioners, and I am willing to take any punishment that the Archbishop or the Bishop may award," then the Archbishop or the Bishop may give sentence against him. But it is by consent only ; they have no power whatever of themselves to do so. Then, upon their report all that can be done is to institute proceedings regularly against him, either in the Court of the Bishop himself, who is to sit there with certain assessors, or the bishop may send the case, by letters of request, to the Court of Appeal of the province ; and then the proceedings are regularly commenced, and regularly go on, as in any suit instituted against an offending party. Then, as to the articles being filed in the registry of the Court below, that would be no sufficient ARCHES COURT. 345 notice to the party. The serving of the articles 1857i npon him, whicli is required by the Act, is, to some Apniasa. extent, a notice given to him of the proceedings d^^qj, that are going on against him. But it is a very „ »• o D o ■' Ditcher. imperfect notice. He is not bound to take any steps whatever in consequence of it. He is not called upon, as in a citation in a cause to appear before any particular judge, or at any particular time or place. There is no citation of that sort. He need take no notice of it whatever, unless the parties think proper to take further steps. He is not bound to move merely because articles have been served upon him. He has no knowledge of where he is to appear, or before whom his case is to be adjudicated. It is wanting in all the requisites of a citation making tbe party the defendant in a suit. It is deficient in these respects, and, therefore, it cannot be said that that would be binding upon him, unless this service of the articles be followed up by a citation. It is said in this case, that great hardship was imposed upon Mr. Ditcher, the prosecutor, in con- sequence of tbe delay of the Court, or the Arch- bishop, or whoever is to proceed in this matter, to adjudicate upon it; that it is a great hardship upon him that lie should fail, merely because the proper steps have not been taken by the Archbishop. But suppose they have not — and suppose the Arch- bishop was to blame for not having proceeded with due celerity in this case — is it a reason why the Archdeacon should be punished, contrary to the tenor of the Act, which expressly provides that the suit or proceeding shall be commenced within two years; if, through the default of Mr, Ditcher himself, VOL. I. A A DiTCHEK. 346 CASES DETERMINED IN THE 1857. or of any other person, no such proceedings are- April 23d. taken ? If the Archdeacon is not convened before D^mToN t^^ proper court within the time required by the law — that is within two years — it is expressly pro- vided that he shall not be° proceeded against after- wards ; these are the terms used in that 20th section of the Act. And I apprehend, whosoever fault it might be, if fault there was, that the cause was not carried on with due activity, the Arch- deacon is not the person to suffer upon that account. I think it is hardly necessary to go through this Act, which has been commented upon at consider- able length by the learned counsel in the cause. But it may be as well just to observe from the recital of the Act, that its purview is this: — '* Whereas the manner of proceeding for the correction of clerks requires amendment." It is as to " causes for the correction of clerks,'' that this statute is particularly directed. And then the Act provides this court of inquiry, in a later sec- tion, for the purpose of making inquiry as to the grounds of such charge or report; that is what the commissioners are to do. They are to inquire into the ground of such charges or reports, and to see whether there is any necessity for further proceed- ings. In one or two of the sections the term "further proceedings" is used. For instance, in the 4th section they are to inquire and to see whether "further proceedings'' are to be instituted; and again, in the 6th, " any further proceedings." And after that, throughout the Act, the words are, for "instituting proceedings" after the inquiry; that is what they are to do. They are to inquire April 23d. Denison DlTCHBa, ARCHES COURT. 347 whether there is ground for the scandal, and 1857. whether there are grounds for instituting proceed- ings, that is, for bringing a suit in point of fact — for it can be by a suit, and a suit only, that the party can be proceeded against and punished, unless he shall think proper, voluntarily, to consent to the punishment assigned by the bishop or archbishop upon the evidence which is given upon the inquiry. But beyond that he is not liable ; and it appears to me, therefore, that these terms, that no suit or pro- ceeding shall be instituted after two years, are con- fined to legal proceedings in the nature of a suit or proceeding. " No suit or proceeding," or " pro- ceeding or suit," are terms which are to be reckoned precisely the same. There is no difference. Then I apprehend that the Act must meaii the suit, and not the preliminary inquiry, whether there should be a suit or not. That is " in itself no suit or pro- ceeding." Here, undoubtedly, is a suit, but not within the two years; and, consequently, as it appears to the Court, the charge brought against Archdeacon Denison does not come within the period required by the statute. There have been some cases determined upon this point, several of which have been referred to by the learned counsel in the course of the argument. I think the first of those cases was one decided by Sir Herbert Jenner Fust, and is reported in the 4th vol., Notes of Cases, p. 304. The case to which I am adverting is that of the Bishop of London v. Day. The learned judge, in the course of his judg- ment upon that case, made some remarks as to the inconvenience of delay. He says, " But supposing there are reasons for the delay, it must be admitted A A 2 348 CASES DETERMINED IN THE Ditcher, 1857. that great inconvenience results from such delay. IpiTilsI" "^^^ jurisdiction of the Court is limited to a period „ — of two years, before the commencement of the V. proceedings ; and it might happen that the report oi the commissioners of inquiry would be applicable to a different state of things, where seven months intervened between the report and the commence- ment of the suit. The Bishop issued his notice on the 7th of August, 1844, and what offences may have been proved before the commissioners, inde- pendently of these before the Court, I have no means of ascertaining. It would appear that any offences committed after the 25th of September, 1842, might have formed the subject of inquiry before the Com- missioners, whereas this Court can only inquire into offences committed after the 10th of May, 1843. This clearly shows the importance of allowing as little delay as possible to occur between the report of the commissioners, and the commencement of proceedings in this court." So that he clearly held that this Court could not proceed in regard to offences committed at a greater distance of time than two years, although the court of inquiry, from its sitting nearer to the time of those offences, might have inquired into them. If they had been inquired into, and it was found by the court of inquiry that they afforded grounds for further proceedings, or for instituting a suit against the clerk, the learned judge was of opinion that he could not take notice of those charges ; though the commissioners of inquiry might do so, he could not do so, if more than two years had elapsed from the time. And this is a case in which the learned judge expressed himself very strongly and very clearly upon the-subject. ARCHES COURT. 349 ■' Then it is said that this can only apply to cases 1857. where the suit is brought by letters of request; and April 23d. it is admitted that if the suit is brought by letters b^on of request (I do not know whether it was admitted ^ "• ^ Ditcher. merely for the purpose of argument, or whether it was admitted distinctly and absolutely), that that indeed constituted a new proceeding and a new suit ; and, therefore, that the Court sitting in consequence of those letters of request, could not inquire into prior acts; but that if the bishop or archbishop who had granted the commission of inquiry had himself proceeded, and the further proceedings or suit had been before him, that then such proceedings might have included all the facts that were charged before the commissioners, and found before the commis- isioners ; whether those facts were within the two years or not. But I really cannot see any difference between the two modes of further proceeding. If the one is a new suit ; if that which is brought by letters of request is a new suit, why, surely the other must be a new suit likewise ! How does the matter stand? When the commissioners have re- ported, it is competent to the bishop either to pro- ceed in his own court with certain assessors, or to sign letters of request. Whether he does the one thing or the other, either is a proceeding entirely free and distinct from the report of the commissioners of inquiry, whether there should be proceedings instituted, or not. It seems to me, therefore, that the opinion of the learned judge, as expressed here, is quite clear; and, also, that it would be the same whether the case were by letters of request or not. There was another case of Brooks v. Cresswell, which was also before my predecessor in this chair. Ditches. 350 CASES DETERMINED IN THE 1857. The case is reported in 4 N. C, p. 432, and the April 23d. learned judge said — "It has been also objected that deniTon " ^ specific charge laid in the third article, relating " to an occurrence in October, 1842, is out of time, " being beyond the limit of two years prescribed by " the Church Discipline Act, as the citation was not "returned till the 7th of November, 1844; whereas, " it was contended on the other side that the com- " mencement of the proceedings was the taking out "and service of the citation, which was served in " August, 1844, and consequently within two years " of the offence. This point might have been raised " in the case of Lincoln v. Day. But in that case " it was not necessary for the Court to determiae "the point, as it held the offence charged not to " have been established. The Court, however, was " then inclined to hold that the commencement of " the proceeding dates from the return of the cita- "tion, and upon further consideration, the Court " is now prepared to hold that the commencement " of the proceedings is to be dated, not from the " time the citation was extracted, but from the time " of its service upon the party." Then he goes to the case of Sherwood v. Ray. There is also another case, but that is not so important, because that was decided by myself; but it was in conformity with the decision of Sir Herbert Jenner Fust, and in fact it was founded very much upon his judgments, and upon what was considered to be the practice of the Court, and the doctrine of the Court upon this point. I refer to the case of the Bishop of Hereford against a person whose initial is T. I do not know what the name was; that is not important. It is reported in 2 Eobertson. April 23d. Dbnison ARCHES COUKT. 351 Now, -what fell from the Court upon that point is as 1857. follows : — " Hitherto, then, I do not consider that the " objections raised would warrant me in dismissing " the reverend gentleman ; but one more objection " remains to be considered, and that the most im- ^^"cher, " portant one ; namely, the question of time. The "offences are charged to have been committed *' between the months of March, 1850, and June, " 1851, but the decree was not issued until the 20th "of September, 1852; therefore the offences may "all have been committed more than two years " prior to the institution of this suit, since it is not "stated that they were continued to June, 1851. " Now, by the 20th section of the statute, it is "enacted ' that every suit or proceeding shall be com- " menced within two years.' " I need not go through that section of the statute. Then, I say: — " Here is " a positive enactment which is strengthened by the "following negative words, 'and not afterwards'. " By this section, literally as it stands, it is clear " that the person cited cannot be proceeded against "for the offences charged, as they are not, a^ I have " observed, alleged to have been committed within "two years of the commencement of this suit. But " it was said, that this section is not to be taken " alone, it is to be construed with reference to other " parts of the statute." Then I proceed to comment upon the several sections of the Act, and I state "that the term 'further proceeding' is used in " other parts of this Act j and it is said that the suit " in this court is not an original proceeding, but a "continuation of the first proceeding, namely, of " the commission of inquiry, which was instituted "within the two years." So that in this case, as in DiTCHEK. 352 CASES DETERMINED IN THE 1857. one of the cases which had been decided by Sir April 23d. Herbert Jenner Fust, there had been this commis- jy^^on s^on of inquiry, and the question was whether it was to be considered as a continuation of that, or whether it was a new suitor proceeding. " I cannot " adopt that view, though I allow that there is a " want of distinctness in some sections in reference " to the precise meaning of the words ' proceedings ' " and suit. The words of the 20th section, already " cited, are plain. I cannot, then, attempt to explain " any words that are distinct by words which are " to some extent ambiguous. Even if a doubt could "exist, as to the meaning of the 20th section, it " would be my duty, as this is a criminal proceeding, "to give the individual cited the benefit of tbat " doubt; but the truth is, I have no doubt respect- "ingthe meaning of the Legislature; the 'proceed- " ings' or 'the further proceedings,' when sent to this " court, are to be ' heard and determined according " to the law and practice ' of this court," and so on. This must, therefore, be considered as the doctrine of the Court, right or wrong, as to the course that has been pursued, and from which I am scarcely at liberty to depart, unless it should be made clearly to appear that there has been some great error committed upon the point. I say I am not at liberty to depart from that doctrine, unless there has been such error clearly made out, or unless there has been some decision of a superior court, to which, of course, it would be the duty of this Court at once to bow, and to correct the error which it might have com- mitted. But in this case I do not find that there is any decision by any superior court that at all mili- tates against the doctrine here laid down. It is quite Denison V. Ditcher. ARCHES COURT. 353 true that the Archbishop and his learned assessors 1857. came to a different conclusion, and certainly I should ^prii 23d. bow with deference and respect to them; but I have been taught in this case that the Archbishop was only sitting upon the present occasion, not as an archbishop, but as and for the Bishop of Bath and Wells ; and that it is to be considered an inferior court, and that from that inferior court the appeal lies to this court. I must therefore adhere to the doctrine that has been laid down by my learned predecessor, and which has been followed by myself, and the only conclusion to which I can come is this, that this suit or proceeding, or whatever it is to be termed, has not been brought within the time required by the statute, that more than two years have elapsed from the commission of the alleged offence; and it is, therefore, the duty of the court, I think, in this case, to pronounce for the appeal, to reverse the decision appealed from, and to dismiss the Archdeacon from all further observance of justice in this suit. I make no order as to costs. INDEX TO THE PRINCIPAL MATTERS. ADMINISTEATION. To the Crown's nominee decreed but not extracted, revoked at the instance of a creditor with- out a fresh warrant ; and ad- ministration granted to the creditor, with the consent of the Queen's proctor, and upon the original decree and adver- tisements on behalf of the Crown. In the goods of Ellen Steinorth. 270 Granted to simple contract cre- ditor in preference to a judg- ment creditor, the debt of the former being the largest and the majority of interests in his favour. Ernest y . Eustace. 271 The Prerogative Court has no power to declare an adminis- tration bond null and void. In the goods of Peter Rainier. 317 To committee of a lunatic widow in preference to next of kin. Alford V. Alford (hy her com- mittee). 322 Refused to assignee of creditor, assignment of the debt having been made after deceased debt- or's death. Baynes v. Harri- son. 15 With will annexed ; form of grant in Scotland varied as to the effects of the deceased in Eng- land. In the goods of Diana Mackenzie. 17 To the guardian of minor residu- ary legatees, in preference to an executor and residuary le- gatee in trust named in will, the appointment of the latter as executor having been re- voked by a codicil. In the goods of John Payer Payer. 1 84 With will annexed, of effects of a father granted to the widow of 356 ADULTERY. ATTESTATION. the son, as administratrix of her husband, whilst living the sole executor and universal legatee in the wiU — the father and son having been found drowned together. In the goods of James Shilling. 183 L. appointed E., her daughter, sole executrix and residuary legatee ; E. predeceased L., leaving issue and her husband hersurviving; the husband died, having appointed A. and B. his executors ; A. alone proved the husband's will, power being reserved to B. Held, that B. must be cited as well as A. before administration with the will annexed of L. could be granted to a legatee. In the goods of Sarah Leach. 294 ADULTEEY. See Condonation. Impotenct, In a suit brought by A. against B. for adultery, B. pleaded her virginity and recriminated. A. admitted that he had not con- summated the marriage, and the medical evidence proved the virginity ; held, that B. was not guilty of adultery, and was entitled to a separation from A. on the ground of his adul- tery, which was proved. Hunt V. Hunt. 121 Where there is proof of attach- ment, criminal intention, and opportunity, the presumption is, that adultery has been com- mitted. Davidson v. David- son. 132 In a suit for divorce by reason of adultery, brought by husband against wife, she was not al- lowed to plead a verdict for the plaintiff in an action brought against the husband for board and lodging of, and money lent to, the wife, which the husband had attempted to defend by trying to prove the wife's adultery. Jenkyn v. Jen- hyn. 268 Cannot be pleaded by the wife in an allegation contradicting the husband's libel for divorce by reason of her impotency. Anon. 295 ALIMONY. The husband cannot deduct from permanent alimony sums paid by him on account of debts in- curred by his wife before the allotment or payment of ali- mony ■pendente lite. Harmar v. Harmar. 282 ATTESTATION. Attesting witnesses need not subscribe in the presence of each other. In the goods of Jane Webb, 1 Names of attesting witnesses on first sheets of a will but not on the last, on which the testa- tor's name appeared singly, held to be no attestation. Ewen V. Franklin and others. 7 Attesting witnesses subscribed their names in the next room to that in which the testator remained after writing his, the door being open, but he was not in such a position as to have been able to see them; held to be no attestation. Nor- ton V. Bazett. 259 CODICIL. COSTS. 357 BOND. The Prerogative Court has no power to declare administra- tion bond null and void, though the estate in hands of the ad- ministrator may have been fully administered up to the time of the application. In the goods of Peter Rainier. 317 CLERK, IN HOLY ORDERS. A "suit or proceeding" against, under 3 & 4 Vic. c. 86, s. 20, is commenced by the service of the citation on the party accused, and from the service of such citation the two years limited by the statute must be reckoned. Denison v. Ditcher. 334 CODICIL. See ExECUTOB. Will. A. by will and first codicil ap- pointed four executors and trustees, and left them £500 •each ; by a second codicil he substituted B. and D. in place ,of two of the original execu- tors and trustees, and varied the £500 legacies accordingly ; by a third codicil he revoked any codicil or codicils empower- ing B. to act as trustee, and appointed C. one of his trus- tees and executors. Held, on a view of all the papers, that the third codicil was a revoca- tion only of B.'s appointment, and not of the whole codicil in which it was contained. Crut- well and others v. Clancy. 310 Date of will misrecited in. In the Goods of Jonas Welch. 314 Unattested will referred to and made valid by a duly executed codicil. Maddock v. Allen. 325 CONDONATION Is connubial intercourse with full knowledge of all the facts. Campbell v. Campbell. 288 Innocency and condonation are inconsistent pleas, but may be pleaded together. Ibid. To establish condonation the Court must have undoubted proof of conjugal intercourse. IMd. 289 COSTS. In matrimonial suits, the ordinary presumption is that the husband must bear them ; and when the wife has no income, however great her demerits, whether she be plaintiff or defendant, the husband must pay the whole costs ; even of vexatious appeals. But where the wife having an independent income of suflScient consequence is the plaintiff the Court will hold its hand till the termination of the suit, and give costs as in ordinary cases between par- ties not husband and wife. Fyler v. Fyler. 175 Executor propounding will of a testator who had been under insane delusions, and the East Company intervening as resi- duary legatees in trust, con- demned in costs, Dyce Som- brey. Troup and others (Arches^. 120 On appeal in the same case, the 358 DOMIC IL. EVIDENCE. Judicial Committee va.ried the above decree as to costs ; gave no costs against the appellants (the executors and East India Company), but allowing them one set of costs only, including the costs of the appeal. Ibid. A next of kin unsuccessfully op- posing a will made in the En- glish form by a British subject domiciled in France, not con- demned in costs. Bremer v. Freeman and Bremer. 257 Two executors having taken pro- bate in common form, the pro- bate was called in by one of the next of kin — one of the executors, the brother of the next of kin, declared he did not propound the will, but appeared by a separate proctor, and cross- examined the witnesses of the next of kin — his interest in fact being identical with hers ; con- demned in £50, nomine expen- sarum. Ibid. 258 DOMICIL. A., a British born subject, left England many years before her death, resided in Paris for the last 15 years of her life, and died there ; assumed for many years an Italian name, and de- scribed herself and was de- scribed in legal documents as the widow of an Italian. There was no evidence of the fact of marriage ; and the statements made by the deceased in re- spect to the marriage were contradictory. She had real property in India, the bulk of her personalty in England, and made her will in the English form, disposing of her property, with the exception of four small legacies, amongst English per- sons. Held, that by the law of nations, deceased was domiciled in France, but that as she had not been naturalized, nor ob- tained an authorized domicil according to and as required by the law of France, she might by the French law make a will in the English form, and that such will was entitled to probate in this country. Bre- mer V. Freeman and Bremer. 192 A British born subject domiciled in Spain, made his will accord- ing to the law of Spain — pro- bate granted in England. In the goods of Thomas Osborne. 4 EVIDENCE Of adultery need not go to par- ticular time and place when criminal attachment and op- portunities of indulging it are shown. Davidson v. Davidson. 135 Of a single witness in Ecclesias- tical Courts requires corrobo- rative evidence of some sort. Ibid. 137 Facts stated in interrogatories will, under circumstances, be assumed as proved. Ibid. 138 The doctrine fahus in uno falsus in omnibus has not been re- ceived in English Courts as a general principle ; each case must stand on its own particu- lar circumstances. Ibid. 141 Viva voce in Ecclesiastical Courts. Campbells. Campbell 285 EXECUTORS. INCORPORATION, &c. S59 Of attesting witnesses, and to prove instructions. See Will. Of medical men to prove vir- , gindty. Hunt v. Hunt. 129 Of medical men to prove sanity or insanity. Dyce Sombre v. Troup and others. 22 EXECUTORS. Appointment of, in following words : — "A. B. executor," written to the left of and a little lower than the signature of the testator, lield to be no part of the will. In the goods of W. Greata. 266 A testator gave the residue of his property to A., B., C, and D., upon trust, and appointed the same persons executors of his will ; by codicil he revoked the gift of the residue to A., B., C, and D., and substituted A., B., C. and E.; appointed A., B., C, and E., executors of his will, and in all other respects con- firmed it. Held, to be a revoca- tion of D.'s appointment as executor. In the goods of John Tartar. 267 A, appointed his wife executrix during widowhood ; C. and D. residuary legatees in trust, " to pay debts, funeral and testa- mentary expenses, &c." The widow alone proved, and died' without having married again, leaving B. executor of her will ; held, that C. and D, were exe- cutors according to the tenor, and entitled to probate of A.'s will. In the goods of H. P. Collett. 274 L. appointed R., her daughter, sole executrix and residuary legatee ; R. predeceased L., leaving issue and her husband her surviving ; the husband died, having appointed A. and B. his executors ; A. alone proved the husband's will, power being reserved to B, ; held, that B. must be cited as well as A. before administra- tion, with will annexed, of L. could be granted to a legatee. In the goods of Sarah Leach. 294 Revocation of, by codicil. Crut- well and- others y. Clancy. 310 Revocation of, by codicil. In the goods of John Payer Payer. 184 EXECUTION. See Attestation. Will. FOREIGN LAW. See DOMICIL. Will. IMPOTENCY. A. brought a suit for divorce against his wife, by reason of her impotency. She gave in a responsive allegation contra- dicting the libel, and further pleaded his adultery, and prayed divorce on that ground ; held, that the latter part of the alle- gation was inadmissible, for that the fact which is the ne- cessary ground of adultery and divorce therefore, namely, the marriage, was not yet ascer- tained. Anon. 295 Decree for inspection, in case of. Ibid. 304, 333 INCORPORATION OF TES- TAMENTARY PAPERS. See Will. 360 PAUPER, WILL. INSANITY. Where insanity, though confined to certain one or more delu- sions, has once existed, and the evidence shows the deceased to have been instructed to con- ceal the continued existence of such delusion or delusions, and the evidence to prove perfect recovery of capacity is at least doubtfiil, the vrill made by a person so aifected, though ra- tional and rationally instructed, is not entitled to probate. Dyce Sombre v. Troup. 22 LUNATIC. Where a lunatic widow is entitled to administration- of her bus- band's effects, and a committee of her person and estate has been appointed by the Court of Chancery, the ordinary pre- ference exercised in favour of the widow will be extended to her committee, unless the next of kin can show special cause to the contrary. Alford v. Al- ford (by her committee). 322 MARRIAGE. See Impotency. PAUPER. A surgeon recently discharged under the Insolvent Debtors Act denied on oath that he had any income at all, or that he had had any patients since his dis- charge, and was allowed to con- tinue his suit as a pauper — dif- ference in this respect between a professional man and a skilled artisan. Spratt v. Spratt. 276 PROBATE. See Will. Of a joint will granted. In the goods of Sir J. H. Tracey. 6 Of "several papers (one written after the death of the deceased) granted as together containing his wiU, on proof of the law of the domicil. In the goods of Thos. Osborne. 4 Of letter vn-itten on actual mili- tary service. Herbert v. Her- bert. 10 General probate of a will limited to take effect only in certain contingencies. In the goods of P. A. Cooper. 9 WILL. See Domicil. Attestation. A testatrix in a will bequeathed to her sons. A., B., C, and D., "articles of plate, set down under their respective names in the annexed schedule." On the same sheet of paper were lists of plate, with the name of each son attached ; there was no evidence to show whether the lists were written when the will was executed. Held, that the lists were entitled to be in- cluded in the probate. In the goods of A. M. Ash. 181 A., the day before her death, cut off the last sheet of her wiU, and desired her servant to burn it, as being of no consequence ^— this the servant refused to do; the deceased then made alterations in the body of her will, and sent for her solicitor WILL. WILL. 361 to execute a new one, but died on the next day, before any- thing could be effected; held that the intention to revoke the first was dependent on the exe- cution of a second wi!!, and that the first was entitled to probate. In the goods of C. Cockayne, 177 General probate decreed of a will expressed " to take effect only in the event, etc." In the goods of P. A. Cooper. 9 Probate decreed of draft copy of a codicil burnt by testatrix's order with intent to revoke, but not in her presence; 20th sec. Wills Act. In the goods of Ann Dadd. 290 A will signed by the testator and two witnesses in the margin of the first four sheets, but in the fifth sheet the signature of the deceased only appeared; held that the witnesses had not sub- scribed the will. Ewen v. Franklin and others. 7 Probate granted of a joint will, which is a distinct thing from a mutual will. In the goods of Sir Josias Henry Stracey and Diana Stracey. 6 Made by British born subjects domiciled in foreign countries — in France. Bremer v. Free- man and Bremer. 192 — in Spain. Inthe goods of Thomas Osborne. 4 The two subscribing witnesses were the only ones produced in support of a will — one of them was discredited ; there was no evidence of instructions ; will pronounced for on the evi- dence of the single witness, cor- roborated by the probabilities of the case. Farmer v. Brock. 189 VOL. I. B Probate of will granted in the absence of proof of instructions or knowledge of contents, and the attesting witnesses not re- collecting any of the circum- stances of the execution of the will. Foot v. Stanton. 19 Duly executed will in February, 1847, "it being my intention by a separate paper to allot my plate." A codicil in Janu- ary, 1851. After testatrix's death in 1855 there was found with the will and codicil a paper iu her handwriting purportingto dispose ofplate, pictures, etc. ; it was dated 26th April, 1847, and signed by testatrix. The attest- ing witnesses to both will and codicil deposed that they saw nothing of this paper at the exe- cution of either will or codicil. Probate of the will and codicil granted witliout the paper of April, 1847. In the goods of Emma Hakewell. 14 Will made in India on actual military service, 1 Vic. c. 26, s. 11. Herbert \. Herbert. 10 Execution of, by virtual acknow- ledgment in the presence of two witnesses. In the goods of fV. Jones. 3 A. signed a paper intended for her will in 1851, but it was attested by one witness only. In 1856, on the day before her death, she duly executed " a codicil to my last will and testament;" the paper of 1851 was not then produced, but was found in a locked chest in her room after her death — the codicil in a drawer. Held that the paper of 1851 was suffi- ciently identified so as to ac- quire validity from the duly 362 WILL. WITNESS. executed codicil. Maddock v. Allen. 325 A will signed in France before a sufficient number of witnesses, not at the end of the will itself, but at the end of a notarial minute which followed on the same sheet, held a good execu- tion under 15 Vic. c. 24. Page V. Donovan 8f Hankey. 278 A paper written before the will, referring to it, signed and dated, but not attested, and not found with the will, nor produced at the time of execution, not en- titled to probate. In the goods of the Countess Dowager of Pembroke. 182 Void devise and bequest attend- ing it under the Mortmain Act ; gift over. Rudall v. Warren (by his Guardian). 306 Will — Codicil — Date of will mis- recited in codicil — Held to be a clerical error. of Jonas Welch. WITNESS. In the goods 314 See Attestation. Will. Where a witness is asked in in- terrogatory whether he has not made admissions, if the admis- sions are pertinent to the issue, and he denies having made them, an exceptive allegation to prove the fact of his making such admissions is admissible. Davidson v. Davidson. 167 Credibility of; the maxim fahus in uno, falsus in omnibus does not obtain in our courts, id. 140 Attesting witness, discredited. Farmer v. Brock. 189 Verdict at Common Law, how used in suits for adultery. Jenkyn v. Jenkyn. 268 bUHFlELD ifi; JONE&, PAINT£BS, WEST nARDlNG STIICET, FETTEn LANE, M,