« PreviousContinue »
The Court ordered the cause to stand over, till the Court of French Common Pleas could be moved, for leave to amend the record. And afterwards, on an application to the Chief Justice of the Common Pleas at his chambers, he directed a proper *war- [ rant of attorney to be filed and entered; and thereupon a new certiorari issued, and the judgment was affirmed in the King's Bench (*).
Kendrick V. Kynaston.
J.N assault, the latitat was of Michaelmas Term, but the de- claim of conufendant never appeared; and this Term the plaintiff entered sance by the an appearance for the defendant, and filed common bail and Q^"^ ^° left a declaration in the office. And now, before plea pleaded, made.' or imparlance prayed, Blackstone exhibited a claim of conusance (k), by the Earl of Litchfield, Chancellor of the University of Oxford; stating the charters of the University, confirmed by statute 13 Eliz. (/); and alleging, that the defendant was a privileged person, as being a matriculated person, and fellow of Brazen-Nose College, where he was a master of arts and in holy orders. This claim was under seal of the Chancellor's office, and was (previous to the present motion) entered upon record, together with a letter of attorney from the Chancellor, empowering one Elderton, an attorney of this Court, to appear in his name, and demand the conusance (/»). There
(/.-) See the form of a claim of conusance iy the Chancellor of the University of Oxbrd, In Welles v. Traherne, Willes, 233, i. (a). During the vacancy of the office if Chancellor it may be made by the Vicechancellor; Williams v. Brickenden, 11 iast, 543. A claim on behalf of the Uniersity of Cambridge is made by the Vice!hancellor, as locum tenens or deputy of be Chancellor, and of the masters and :liolar5. See the form in Browne v. Reouard, 12 Bast, 12. As to conusance by le Universities, and the time and manner f claiming it, see the above cases, aud Vilkins v. Shalcroft, Hardr. 188; Castle Lichfield, Hardr. 505; Parker v. Edards, 1 Show. 352; Woodcock v. Brooke, a. temp- Hardw. 241; Leasingbyv. Smith, Wils. 406, where the time of claiming n usance is particularly considered, (Oxrd): Case of Cambridge University, 10 od. 126; R. v. Agar, 5 Burr. 2823, 'ambridge) ; Vin. Abr. Conusance; Com. ig. Courts (P 2, 3). (/) C. 29: see 4 Inst 227. (m) It is to be observed, that the Uni
versity of Oxford has conusance of all manner of trespasses and other offences whatsoever, and of all other contracts, pleas, and complaints personal (assizes and pleas of freehold alone excepted) arising, done, or committed within the town of Oxford, &c, or elsewhere within the kingdom of England, where the scholars or their servants, or ministers, or any other persons, who ought to have any privilege of the said University, whom the Chancellor, &c. shall challenge, is one of the parties. But the University of Cambridge has conusance of all personal pleas, and of all misprisions within the town of Cambridge and its suburbs (mayhem and felony only excepted), where any master and scholar or servitor, or common minister of the said University, shall be one of the parties. Therefore in case of a claim by the latter University, it must appear by affidavit, that the cause of action, if any, arises within the liberty of the University, to wit, within the town and suburbs of the town of Cambridge.
were also affidavits from the defendant himself and another person, which proved him to be, at the time of the writ sued, and at the time of making the claim, a matriculated person (n). On reading all which, and also the charter of King Henry the Eighth under the great seal, and an exemplification of the statute 13 Eliz. (which, though printed in the statute books, is only a private act) the Court granted a rule to shew cause, why the cognizance should not be allowed; and, in the mean time, all proceedings to stay (0).
(n) It should also appear by affidavit,
R. v. Routledge, 2 Doug. 531.
(0) “The entry of the claim on the roll in the case of Kendrick v. Kynaston, in B. R. was exactly like that in Hayes v. Long, 2 Wils. 310, (which seems to be drawn from it). I was in that Court, when a rule to shew cause was made, why the claim of conusance should not be allowed; but nothing further was done, nor was the rule ever made absolute; so that whether the claim in the case of Kendrick v. Kynaston was duly made and entered or not, was never determined;" Per Wilmot, C. J., in Leasingby v. Smith, 2 Wils. 409.
BOND 0. SEAWELL.
S. C. Ante, 407, 422. [If three wit- THIS case was again argued by Willes for the plaintiff; who nerses attest the observed, that if a testator had shewn a will made on several last sheet of a will, and the pieces of parchment rolled up, so that only the bottom should other sheets are appear to the witnesses, that would doubtless be a good attest[ * 455 ) ation. That the inconvenience sug*gested, that the testator
me might substitute another sheet never seen by any witness, would room, though they do not see be equally strong, if all the witnesses had seen it; for it was them, or know all written with his own hand, and he might change any part
are so, of it at pleasure. That the dictum relied on (in Lea and Libb, it is a good attestation.]
3 Mod.) supposes, that none of the witnesses see the first sheet, which is not the present case. He also cited Wyndham and Chetwynd, 31 Geo. 2(p), from 2 Burn's Ecclesiastical Law, but was interrupted by Lord Mansfield, who said that book was no authority, and that the case cited was ill reported to his knowledge.
Norton, Attorney-General, for the defendant, allowed, that this instrument might be good as a will, but not as a devise of lands. That the word will is never once mentioned in stat. Car. 2. The only question is, whether it has all the statutable requisites to such a devise. We say, it is not statutably attested. It is rather a question of fact than of law. I admit, that the witness need not know the number of sheets which he attests: but here he actually did know it. When he positively says, “I attested a will of one sheet only,” and you produce a will of two sheets; the Court will say, "That is not the same
(p) Ante, 95.
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 a, sheet not seen by the witnesses any other bad man may.
Curia advisare vult (q).
(j) But it appears from 3 Burr. 1776, hat a new trial was ordered. Ld. Mansield, C. J.—" Every presumption ought o be made by a jury in favour of such a will, when there is no doubt of the testaor's intention. It is not necessary, that he witnesses should attest in the presence if each other; or that the testator should teclare the instrument he executed 'to be lis will;' or that the witnesses should atcst every page, folio or sheet; or that they
should know the contents; or that each
Over-norton V. Salford.
S. C. Ante, 433.
LORD Mansfield, C. J., delivered the opinion of the Court ery briefly; that Peter White the father gained no settlement it Salford by his purchase, except during his inhabitancy here; which would have been the case, if this act, 9 Geo. 1, . 7, had been never made; for during such inhabitancy he ould not have been removed from his own. The father is iremoveable from Salford, according to the doctrine in Wookey nd Hinton, Stra. 476, but he gains no permanent settlement here; he therefore can convey nothing to the son, but his setlement at Over-Norton. What weighs with us * greatly, is !ie inconvenience that must arise from the contrary opinion. f the pauper had gone to a third parish, and become chargeble; whither should he be removed? Certainly not to Salford; ecause then the order must have been finally conclusive and inding upon Salford, for ever(r).
Order of Sessions discharged.
(r) As to emancipation and derivative settlements, see R, v. Walpole, St. Peter's,
The son of a man who purchases under 30/. consideration, born during his father's residence on such purchase, is settled at his father's prior settlement, though the father still
[ »456 ]
continues to reside on the purchased estate.
The King V. Sir Edward Simpson.
& C. 3 Burr. 1463.
HOTION for a mandamus to the Judge of the Prerogative 'ourt, to permit Edmund Brown, one of the executors named i the will of Sarah Elizabeth Angelica Latour, to retract his enunciation of the said executorship, and to grant a probate P the said will to the said Brown and Ann Layton the other irviving executrix.
On behalf of the mandamus it was suggested, that Layton as become insolvent, and that the effects (which were very insiderable) were in danger of being dissipated in her hands,
[Sem6fr,that] an executor, who has formally renounced, can afterwards retract such his renunciation at pleasure, before probate granted to his co-executor.
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.
II 1(f). If the ecclesiastical oath is contrary to this, it is an The Kiko llegal oath, and ought not to be administered. However it *
eems, that, upon good cause, the Court below can absolve ■
rom the oath, as well as administer it. The case in Cro. Eliz. s, * where all the executors renounced; and then the man is [ *458 ] •nasi intestate, and administration must be granted under the tatute, which I allow cannot be revoked. If the Judge has doubt, he may make a return, and the ground of his doubt be examined: for this is not a peremptory mandamus. But et him not endeavour to encroach by assuming a jurisdiction o reject a legal executor. I remember another step towards mcroachment, where the Spiritual Courts refused to grant pro>ate to an insolvent executor, unless he gave them security. 3ut this Court held, that the Ecclesiastical Judge had nothing o do with security. The testator was to judge of the fitness >r unfitness of his executor.
Lord Mansfield, C. J.—The consequence was, that the 2ourt of Chancery was forced to assume a new jurisdiction, ind take the power out of the executor's hands, and appoint a •eceiver of the effects (w).
So they must be obliged to do, should the Court refuse the present motion. Equity would compel the woman to give se:urity.
Lord Mansfield.—Is there any case, where the Ecclesias;ical Court has granted, or this Court has compelled them to jrant a new probate to an executor, who has [formally] (w) relounced?
None; but here we come before any probate granted. Had irobate been granted, without a reservation for the others to :ome in (which in common cases is the usual course) we might lave been too late. Many advantages are gained by having he probate in one's own name; so that the mandamus will not ae nugatory.
Lord Mansfield, C. J.—The two executors swear, that ;ach reciprocally is insolvent. They are both merely trustees. [ should be glad to hear counsel for the cestuy que trust, who s principally concerned in interest. If they mean honestly, hey should both renounce, and let administration be granted o a third person named by the cestuy que trust.
•The rule was enlarged to the last day of Term, and notice [ * 459 ] >rdered to be given to the cestuy que trust. But, in the mean ime, difficulties arising to prevent the mutual renunciation, it vas agreed, that probate should be granted to both; they enering into a rule to give proper securities and indemnifications
0 the cestuy que trust and each other.
('') And tee alio Mead v. Lord Orrery, after their death, and shall be preferred bc
1 Atk. 239, and Ilensloe'i Ca., cited in the fore any executor appointed by them ; Bac. ext From all which it appears, that the Abr. Executors (E 9); Toller's Ex. . enunciation is not peremptory; that such («) if. v. Sir Richard Raines, Carth. u refuse may afterwards come in and ad- 457; see also Hills v. Mills, Salk. 36. minister; and that, although they never (to) In the former edition this passage irted during the lives of their co-executors, ia, "who has formerly renounced."
*ey may assume the execution of the will
VOL. I. BB