Other cases, that have since been adjudged, were, where Jury found a verdict for the plaintiffs (g). (g) See Hooper v. Smith, post, 441; Law v. Skinner, post, 996. COMPTON V. BEDFORD. *363 1 EASTER TERM,-2 GEO. III. 1762.-K. B. MONTEFIORI v. MONTEFIORI. S. C. Cited 1 Bro. Ch. Ca. 548. carry on a mar- JOSEPH Montefiori, a Jew, being engaged in a marriage A note, given treaty, his brother Moses, to assist him in his designs, and re- fraudulently, to present him as a man of fortune, gave him a note for a large sum of money, as the balance of accounts between him and his brother Joseph; which balance he (Moses) ac*knowledged to have in his hands; though, in truth, no such balance, or any thing like it, existed. After the marriage had, Moses reclaimed given without this note, as being given on no consideration; and the matter any considerawas referred to arbitration. The arbitrators awarded the note tion. to be delivered up, which Joseph refused to do; upon which the Court was moved for an attachment against him for nonperformance of this award; and on his part a cross motion was made to set aside this award, on a suggestion that the arbitrators were mistaken in point of law. Lord MANSFIELD, C. J.-The law is, that where, upon proposals of marriage, third persons represent any thing material, in a light different from the truth, even though it be by collusion with the husband, they shall be bound to make good the thing in the manner in which they represented it. It shall be, as represented to be. And the husband alone is entitled to relief, as well as when the fortune, &c. so misrepresented has been specifically settled on the wife: For no man shall set up his own iniquity as a defence, any more than as a cause of ac MONTEFIORI tion (h). The arbitrators therefore being clearly mistaken in point of law, the award must be set aside (i). v. MONTEFIORI. DENNISON and WILMOT, JS., of the same opinion. FOSTER, absent. Rule for the attachment discharged; rule for setting aside the award made absolute. (h) So where A., on a treaty of mar- tion as to the want of consideration of a ties; see Jefferies v. Austin, 1 Stra. 674; Lickbarrow v. Mason, 2 T. R. 71; Puget de Bras v. Forbes, 1 Esp. 117; see also Grant v. Vaughan, post, 485, Guichard v. Roberts, post, 445, and notes. As to whether a promissory note is good as a gift, and an action maintainable thereupon, see Tate v. Hilbert, 2 Ves. Jun. 111. (i) The reasons, which induce an arbitrator to make his award, must appear upon the face of it; or of some paper delivered with and intended to be considered as part of the award, in order to enable the Court to examine them, and set aside the award, if the arbitrator has mistaken the law; Kent v. Elstob, 3 East, 18; and they will not set it aside, if the law be doubtful; Richardson v. Nourse, 3 B. & A. 237. See Pickering v. Watson, post, 1117. Scots manufac tures may be vended in Eng MAXWELL V. MAYRE. (Ante, 271.) LORD MANSFIELD, C. J., delivered the opinion of the Court very briefly, thus: That we are all of opinion, that the linen land by whole- manufacture of Scotland is now the linen manufacture of this [365] kingdom:-that all arguments drawn from usage to the contrary are out of the case; as upon inquiry at the hawker's and licence from the pedlar's office we find that no such usage exists:-And thereJudgment for the plaintiff. sale without a hawker's office. fore, * LOWE v. Jolliffe. who swear to the Subscribing wit- ON a trial at bar on an issue out of Chancery, devisavit vel nesses to a will, non, concerning lands in Worcestershire, the three subscribtestator's insa ing witnesses to the testator's will, and the two surviving ones nity, contradict to a codicil made four years subsequent to the will, and a dozen ed by other evi- servants of the testator, all unanimously swore him to be utterly incapable of making a will, or transacting any other business, at the time of making the supposed will and codicil, or at any intermediate time (k). To encounter this evidence, the dence. (k) S. P. Pike v. Bradbury or Bradmaring, Bull. N. P. 264, cited in Andr. 224, 237, 2 Stra. 1096; Austin v. Willes, Bull. N. P. ibid.; Hudson's Ca., Skinn. 49; S. P. per Lord Mansfield, in Abbot v. Plumbe, 1 Doug. 216. It was admitted by Lord Kenyon, C. J., and Lawrence, J., that a subscribing witness is admissible to impeach the execution of an instrument, which he has himself attested; in Jordaine v. Lashbroke, 7 T. R. 604, 611. But his evidence is to be received with great jea LOWE v. JOLLIFFE acted, may be witness. counsel for the plaintiff examined several of the nobility and principal gentry of the county of Worcester; who frequently and familiarly conversed with Mr. Jolliffe, the testator, during that whole period, and some on the day whereon the will was made; and also two eminent physicians, who occasionally attended him; and who all strongly deposed to his entire sanity and more than ordinary intellectual vigour. They also read the deposition of the attorney who drew and witnessed the codicil, who was dead, but his testimony perpetuated in Chancery; and who spoke very circumstantially to the very sound understanding of the testator, and his prudent and cautious conduct in directing the contents of his codicil. They also An executor in offered to examine Mr. Rupert Dovey, an attorney of unble- trust, who has mished reputation, who drew the will; whereby he and another examined as a were made executors in trust to sell part of the estate for payment of debts, with a legacy of 2001. each for their trouble. Before the will was contested, Dovey had so far acted in the trust, that he had contracted for and actually sold Mr. Jolliffe's chambers in the Temple to Mr. Gascoigne Frederick; but, in order to be a witness of Mr. Jolliffe's sanity, had voluntarily released his legacy (1). The counsel for the defendant still objected to his competency, 1st, As being an executor in trust, and so liable to actions; 2dly, As having acted under the trust; whereby, if the will*was set aside, he became liable to answer [366] Mr. Frederick for the damages sustained by an illegal sale of the chambers. And they cited 1 Sid. 51, 115, 1 Keb. 134. Mr. Frederick being in Court, publicly offered to enter into a rule to take no advantage of the event (however it might turn out) for the sake of public justice. But the Court thought there was no occasion for it. And by Lord MANSFIELD, C. J.-We don't now sit here to take our rules of evidence from Siderfin and Keble. In a modern Case, of Holt and Tyrrel, (which appears, in 1 Barnard. Rep. in the King's Bench, p. 12, to have been in P. 13. Geo. 1, 1727), it was held in a trial at bar, that a trustee might be a witness without releasing; and where is the difference between an executor in trust and another trustee? His being liable to actions makes no difference; for so are all agents, and yet they are allowed to be witnesses. WILMOT, J.-I remember another trial at bar, wherein it was held, that a devisee in trust might be a witness. And no distinction was taken between his acting or not. Holt and Tyrrel was then cited and relied upon (m). Dennison and Foster, Js., absent. lousy; Howard v. Braithwaite, 1 Ves. & Beam. 208, per Lord Eldon, C.; Goodtitle v. Clayton, 4 Burr. 2224. Where one of the witnesses would not swear to the sealing and publication of a will, Holt, C. J., held it sufficient to prove his attestation; Dagwell v. Glasscock, Skinn. 413. A will may be proved by the evidence of one witness, although two of them swear VOL. I. U that the testator was incompetent; Digg's (1) See ante, 17, n. (m) Trustees and executors taking no beneficial interest under a will are competent witnesses to prove the due execution of it; Goodtitle v. Welford, 1 Doug. 139; Phipps v. Pitcher, 6 Taunt. 220, 2 Marsh. 20; per Cur. in Tomlinson v. LOWE 8. JOLLIFFE. [ *367 ] Mr. Dovey was accordingly sworn; and upon the whole it appeared to be a very black conspiracy to set aside this gentleman's will, without any foundation whatsoever; the defendant's witnesses being so materially contradicted, and some of them so contradicting themselves, that the jury, after a trial of fifteen hours, brought in a verdict for the plaintiff, to establish the validity of the will and codicil, after an absence of five minutes. The Chief Justice then declared himself fully persuaded, that all the defendant's witnesses, except one, being nineteen in number, were grossly and wilfully perjured; and called for the subscribing witnesses, in order to have committed them in Court, but they had withdrawn themselves. However, a prosecution of some of them for perjury was strongly recommended by the Court. The three testamentary witnesses were afterwards convicted (n). *Nares, Serjeant, Morton, Blackstone, Stowe, Ashhurst, Dandridge, for the plaintiff. Norton, Solicitor-General, Hewet, Serjeant, De Grey, Hussey, Yates, and Bearcroft, for the defendant. Wilkes, 2 Brod. & B. 398, 5 B. Mo. 172. 578; R. v. St. Mary Magdalen, 3 East, 7; Wyndham v. Chetwynd, ante, 95, and notes. (n) See their sentence, post, 416; R. v. Nueys & Galey. No occasion to shew, that banns were actually published, or the marriage register regularly signed, to esta blish a marriage, quoad a parish settlement. ST. DEVEREUX v. MUCH DEW CHURCH. SUSANNAH Meredith was removed by an order from Much Gryffydd Price shewed cause why these orders should not be quashed; that by stat. 26 Geo. 2, c. 33 (o), marriage without publication of banns or licence is absolutely null and void.— That banns are now as much essential to a marriage, as livery (o) See Chinham v. Preston, ante, 192. to a feoffment, or attestation to a will of lands. And here is no ST. DEVEREUX proof that banns were ever published. V. MUCH DEW But the Court, without hearing Counsel on the other side, thought the proof of the marriage sufficient; and, by Lord MANSFIELD, C. J.-In a suit in the Ecclesiastical Court for jactitation of marriage, perhaps it may be necessary to prove, that all the solemnities of the Marriage Act have been punctually and regularly complied with: but, God forbid, that in other cases (the legitimacy of children and the like) *the usual [ *368 ] presumptive proofs of marriage should be taken away by this statute. It was canvassed in Parliament, at the time when the act was made, and universally agreed, by all whose opinions were worth having, that it would not become necessary to prove the publication of banns, &c. (p). Besides, here the publication of banns is actually proved both by the entry in the register and the parol evidence of Bowen. But I think the minister highly blameable in not making the entries regular, according to the act, and that the AttorneyGeneral should exhibit an information against him ex officio. For, upon his accuracy may depend the proof of pedigrees (which begin now to be very difficult) and the descent of real estates. WILMOT, J., accord. DENNISON and FOSTER absent. Both orders quashed by the Court. (p) S. P. Reade v. Passer, Peake's N. P. [231]. Where a minor was married by license, his parents being dead and no guardian appointed, and when he arrived at full age his wife was in extremis, and soon afterwards died; the jury having presumed a subsequent legal marriage, the Court refused to disturb their verdict; Wilkinson v. Payne, 4 T. R. 468. But the party wishing to set aside a marriage may shew that the banns were not regularly published; Standen v. Standen, Peake's N. P. [32]. And though a marriage may be, and in strictness ought to be, proved by the register, or by an examined copy of it, there being also proof of the identity of the parties; (which need not be proved by the minister or subscribing witnesses; Birt v. Barlow, 1 Doug. 171); yet it may also be proved by any person present at the ceremony; even by the husband or wife, who are also competent witnesses to disprove it; Standen v. Standen, ubi supra; Henley v. Chesham, 2 Bott, 81. So, thirty years' cohabitation is presumptive evidence of a marriage; R. v. Stockland, Burr. S. C. 508; so, general reputation, the acknowledgment of the parties, and |