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BOND

SEAWELL.

instrument." There is no room for presumptions here. To establish this as a good attestation, would, in point of precedent, be a great inlet to fraud. If a testator be allowed to add u a sheet not seen by the witnesses any other bad man may.

Curia advisare vult (9).

(9) But it appears from 3 Burr. 1776, that a new trial was ordered. Ld. Mansfield, C. J.-" Every presumption ought to be made by a jury in favour of such a will, when there is no doubt of the testator's intention. It is not necessary, that the witnesses should attest in the presence of each other; or that the testator should declare the instrument he executed to be his will;' or that the witnesses should attest every page, folio or sheet; or that they

should know the contents; or that each
folio, page or sheet, should be particularly
shewn to them. This has been settled.
We are all of opinion, that it ought to be
tried over again. And if the jury shall be
of opinion, that the first sheet of the will
was then in the room, they ought to find
for the will generally; and they ought to
presume from the circumstances proved,
that the will [i. e. the entire will] was in
the room."

chases

OVER-NORTON v. SALFORD.

S. C. Ante, 433. LORD MANSFIELD, C. J., delivered the opinion of the Court The son of a very briefly; that Peter White the father gained no settlement man who pure at Salford by his purchase, except during his inhabitancy

301 considerathere; which would have been the case, if this act, 9 Geo. 1, tion, born during c. 7, had been never made; for during such inhabitancy he his father's resicould not have been removed from his own. The father is ir- dence on such

purchase, is setremoveable from Salford, according to the doctrine in Wookey ded at his fae and Hinton, Stra. 476, but he gains no permanent settlement ther's prior setthere; he therefore can convey nothing to the son, but his set- tlement, though

the father still tlement at Over-Norton. What weighs with us * greatly, is

ly: 1s [ * 456 ] the inconvenience that must arise from the contrary opinion. Continues to reIf the pauper had gone to a third parish, and become charge- side on the purable; whither should he be removed? Certainly not to Salford; chased estate. because then the order must have been finally conclusive and binding upon Salford, for ever(r).

Order of Sessions discharged.

re; he thoutra. 476, but herding to the doct

(s) As to emancipation and derivative settlements, see R. v. Walpole, St. Peter's,

post, 669.

The King v. Sir EDWARD SIMPSON.

S. C. 3 Burr. 1463. M OTION for a mandamus to the Judge of the Prerogative Semble, that an Court, to permit Edmund Brown, one of the executors named executor, who in the will of Sarah Elizabeth Angelica Latour, to retract his

Latour to retrant his has formally re

nounced, can afrenunciation of the said executorship, and to grant a probate terwards retract of the said will to the said Brown and Ann Layton the other such his renunsurviving executrix.

ciation at plea

sure, before proOn behalf of the mandamus it was suggested, that Layton bate granted to was become insolvent, and that the effects (which were very his co-executor. considerable) were in danger of being dissipated in her hands,

SIMPSON.

The King to the prejudice of the residuary legatees, who were distinct

from either of the executors.

Dr. Collier shewed for cause, that Brown had twice renounced on oath before a surrogate, and that, by the practice and law of the Ecclesiastical Courts, no retractation could be admitted of a renunciation upon oath: and cited Decretal. 2, 3, 4; Decretal. 2, 7, 1, 8; Lyndewode tit. de Præsumption, ca. ne lepra. v. renuncians; that the executor has a year to deliberate, but, having once renounced, he cannot return. Broker and, Charter, Cro. Eliz. 92; the executors sent a letter to the judge of the Prerogative, desiring him to grant administration to the next of kin. The question was, if they could come in afterwards and retract? The Court held, that such refusal was binding to all the executors. The words of the oath of renunciation are," that you have not, and will not intermeddle, in the effects, &c. and do renounce all right, &c.” The question

therefore is, whether Brown shall be admitted to perjure him[ * 457 ] self. · He allow*ed, that in some cases, for good considera

tions, the renunciation might be retracted: but here is none such. This suggestion of insolvency was never made in the Spiritual Court, and Layton by the will is entitled to a legacy, of 12001.; and Brown, we say, is as poor as Layton.

Lee, on the same side, argued, that in Hensloe's Case, 9 Co., 37, it is held, that the spiritual judge may take a renunciation, from all the executors, but not from one only: and Hardr. 111, is to the same effect. Therefore by granting the probate to Layton only, Brown would be made also an executor;--the consequence of which is, that the mandamus would be nugatory, and of course the Court will not grant it.

Norton, Attorney-General, in support of the rule, insisted, that an executor, who has renounced, has a right to be considered as an executor, whenever he thinks proper; provided probate has not been granted, as in the present case it has not. That the common law, not the canon, must be the rule. The testamentary jurisdiction of the spiritual Courts (which originally belonged to the temporal Courts, and is retained by some to this day) arose from the statute of administrations, in the reign of Edw. 3(s). Their power of calling in and swearing executors is an usurped jurisdiction, and ought not to be endured, much less favoured, in the temporal Courts. If there be twenty executors, and one proves the will, the other nineteen are by common law executors also; and the Ecclesiastical Court has no business to call them in to prove or to renounce.

It has been held, Dyer 160 b, that an executor, though he renounces, is, by the probate granted to any other of the executors, himself become executor to all intents and purposes. Actions must be brought in the name of all, though one only proves the will. And that renunciations are not peremptory but may be retracted, appears from Robinson and Pett, in Chancery, 1734, P. Wms. (1), and House and Lord Petre, Salk.

(s) 31 E. 3, st. 1, c. 11.-See 1 Show. Vin. Abr. Prerogative (M e). 407; Offey v. Best, 1 Lev. 186; Plowd. 277; (6) 3 P. Wms. 251.

SIMPSON.

311(v). If the ecclesiastical oath is contrary to this, it is an The King illegal oath, and ought not to be administered. However it u. seems, that, upon good cause, the Court below can absolve from the oath, as well as administer it. The case in Cro. Eliz. is, * where all the executors renounced; and then the man is [ * quasi intestate, and administration must be granted under the statute, which I allow cannot be revoked. If the Judge has any doubt, he may make a return, and the ground of his doubt will be examined: for this is not a peremptory mandamus. But let him not endeavour to encroach by assuming a jurisdiction to reject a legal executor. I remember another step towards encroachment, where the Spiritual Courts refused to grant probate to an insolvent executor, unless he gave them security. But this Court held, that the Ecclesiastical Judge had nothing to do with security. The testator was to judge of the fitness or unfitness of his executor.

Lord MANSFIELD, C. J.—The consequence was, that the Court of Chancery was forced to assume a new jurisdiction, and take the power out of the executor's hands, and appoint a receiver of the effects (u).

So they must be obliged to do, should the Court refuse the present motion. Equity would compel the woman to give security.

Lord MANSFIELD.- Is there any case, where the Ecclesiastical Court has granted, or this Court has compelled them to grant a new probate to an executor, who has (formally](w) renounced ?

None; but here we come before any probate granted. Had probate been granted, without a reservation for the others to come in (which in common cases is the usual course) we might have been too late. Many advantages are gained by having the probate in one's own name; so that the mandamus will not be nugatory.

Lord MANSFIELD, C. J.—The two executors swear, that each reciprocally is insolvent. They are both merely trustees. I should be glad to hear counsel for the cestuy que trust, who is principally concerned in interest. If they mean honestly, they should both renounce, and let administration be granted to a third person named by the cestuy que trust.

*The rule was enlarged to the last day of Term, and notices * ordered to be given to the cestuy que trust. But, in the mean time, difficulties arising to prevent the mutual renunciation, it was agreed, that probate should be granted to both; they entering into a rule to give proper securities and indemnifications to the cestuy que trust and each other.

(v) And see also Mead v. Lord Orrery, after their death, and shall be preferred be3 Atk. 239, and Hensloe's Ca., cited in the fore any executor appointed by them; Bac. text. From all which it appears, that the Abr. Executors (E 9); Toller's Ex. [45]. renunciation is not peremptory; that such (u) R. v. Sir Richard Raines, Carth. as refuse may afterwards come in and ad- 457; see also Hills v. Mills, Salk, 36. minister; and that, although they never (w) In the former edition this passage acted during the lives of their co-executors, is," who has formerly renounced." they may assume the execution of the will VOL. I.

BB

The King o. FARREL. If a stroke be THE defendant was bound by recognizance to appear in this given at sea, Court to answer to a charge of murder, by giving a mortal and the party dic in Ireland, stroke to one Nunn, upon the high seas, of which he afterQu. Where shall wards died (as was alleged) at Cork in Ireland. On the other the murder be

hand, the defendant produced affidavits, that the blow was actried ?

cidental, occasioned by pulling the deceased out of his hammock, to make him return to company, which he had just retired from; and that the cause of his death was a distemper contracted at the Havannah. He therefore appeared on his recognizance, and moved to have it discharged, which was warmly opposed by the prosecutors. This occasioned some difficulty, how to dispose of him, where he was to be indicted, and how he was to take his trial. And upon Lord Mansfield's enquiring, whether the statute 2 Ed. 6(Q), was re-enacted in Ireland, it was answered at the bar, that they had a statute in 10 Car. 1, to the same effect. At length the Court continued his recognizance till the next Term; with an intimation, that if the defendant appeared at the first day of the Assizes for the county of Cork in Ireland, then, on affidavit made thereof, the recognizance should be discharged without his farther personal appearance. But the Court added, “ Let no man take occa“sion, from this order, to say in Ireland, that this Court has “ given any opinion, whether the offence is or is not there “ triable."

On the first day of the next Term, on affidavit of the defendant's appearance at the Assizes, the recognizance was discharged.

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The King v. WEBB.

S. C. 3 Burr. 1468. Terms imposed THE defendant was indicted the 15th of January, 1764, at on prosecutor, Hiba's Hou for nori

á Hicks's Hall, for perjury in his evidence on a trial in the Court to quash his of Common Pleas, between Wilkes and Wood in Michaelmas own indictment. Term: which indictment was removed by certiorari into the

King's Bench, at the instance of the prosecutor. The defendant appeared and pleaded not guilty, and notice of trial was

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given for the first Sittings after Hilary Term, but counter- Tue King manded by the prosecutor on February the 11th. Whereupon ".

WEBB. the defendant gave notice of trial by proviso for the first Sittings in the present Term. And on the 3d of May, a few days before the Term, a fresh indictment was preferred and found against the defendant, and also removed by certiorari. Upon which, on the first day of this Term, Glynn, Serjeant, moved, on behalf of the prosecutors, to quash the first indictment, But it was opposed by Blackstone for the defendant, unless the counsel would name the prosecutor, and put the defendant, who was desirous of a speedy trial to clear his innocence, in the same plight as he stood in upon the former indictment; as there might otherwise be room for collusion on the one hand, or vexation and oppression on the other, if any counsel might move to quash an indictment, as on the part of the prosecutor, without naming him, if called upon. The motion was adjourned till the next morning, and was then supported by Glynn, Serjeant, Eyre, Recorder of London, Stowe, Dunning, and Wallace; and controverted by Norton, Attorney-*Gene- [* 161 ] ral, Morton, and Blackstone. And for the prosecutor it was alleged, that the first indictment was bad, the perjury being assigned improperly, in not shewing that the evidence given was in a matter sufficiently relevant to the issue (a); and that by the rule and practice of the Court, a prosecutor had a right, by his counsel, to quash his own indictment without disclosing his name. And they cited the King against Swan and Jefferies, Foster, 105, and Withypoole's Case, Cro. Car. 147. For the defendant it was insisted, that where there was so palpable a delay on the part of the prosecution, the Court would not indulge them in quashing the first indictment, without laying them under terms; and particularly, those of a speedy trial and of naming the real prosecutor. K. and Moore, Stra. 946.

And by Lord MANSFIELD, C. J., and the whole Court.There can be no such rule, that, when a man is indicted for an infamous offence, the prosecutor is entitled to come into Court, and quash his indictment as often as he pleases; it may be in infinitum. The Court will see, that no mischief or oppression ensues, before they grant leave for that purpose. Therefore, let the first indictment be quashed (6), the counsel

(a) See R. v. Griepe, 1 Lord Raym. pleaded, before another good indictment is 256; R. v. Aylett, 1 T. R. 69, per Lord found; but it seems the consent of the deMansfield; R. v. Dowlin, 5 T. R. 318. fendant is not necessary for quashing an

(6) The Court may quash an indict. indictment, even after plea pleaded ; R. v. ment, at their discretion, for an insuffi- Dr. Wynn, 2 East, 226. If a second inciency, which would make the judgment dictment be found, pending the first, the erroneous; but they are not bound to do Court will not quash the first, unless the so ex debito justitiæ, but may oblige the expenses incurred by the defendant, upon defendant to plead or demur to it; 2 Hawk. the first, be paid to him; 1 Stark. Crim. P. C. c. 25, s. 148; and see R. v. John. Plead. 282. The Court will not give leave son, 1 Wils. 325; R. v. Wheatley, ante, to quash an information filed by the At275, 2 Burr. 1127. S. C. In general, a torney-General ex officio; but he may stop motion to quash an indictment should be the proceedings by noli prosequi, and file made before plea pleaded; Frith's Ca., another; R. v. Stratton, 1 Doug. 239.1 Leach. 11 (ed. 1815). And the Court See Com. Dig. Indictment (H); 3 Bac. Abr. will not quash a defective indictment on Indictment (K); and I Stark. Crim. Plead the motion of the prosecutor after plea c. 17, p. 281.

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