In the present case, this is the forum originis-it is, also, quoad hoc, I think, the forum domicilii; for I very much question whether this deceased, at all events, was ever so domiciled in France as to render his property here liable to distribution according to the law of France, if he had died intestate-this, again, so far as regards the property which a sentence of this Court can affect, is the forum rei sitæ, a circumstance, perhaps, not wholly immaterial, taken in conjunction with others, though of little, or even of no moment, standing alone-this, lastly, is the forum contractus as it were; for the will was made in this country; was to be executed in this country; and, was drawn up plainly with reference, and in strict conformity to the highly technical requisites, in that behalf, of the law of this country. Under these circumstances, how totally inapplicable the case of Nasmyth is to the position contended for by the counsel for the widow in the present case, must, after what has already fallen from the Court, be too obvious to require any comment.

Upon the whole, being satisfied that the facts pleaded are insufficient to affect the validity of the will which has been propounded in this cause, the Court has no difficulty in saying that the present allegation must be rejected.

Allegation rejected-Costs were prayed against the widow, but the Court refused to give costs.

HARE and Others v. NASMYTH.-p. 25.

(In the Goods of Dr. James Nasmyth.)

On the validity of a will made by a domiciled inhabitant of Scotland, the Court here, will defer to the law of Scotland: and will pronounce in favour of the will, or that the deceased died intestate, according as that question is determined by the Scotch Court of Probate.

THE suit of Hare v. Nasmyth, twice referred to in the "Judgment,” or rather that part of it material to any question of domicil, was briefly as follows:

The deceased in that cause, Dr. James Nasmyth, usually resided at Hope Park, near Edinburgh(a); but, in the year 1812, he came to London, where, though intending from time to time to return into Scotland, he remained till his death, which took place on the 7th of December, 1813. He left behind him certain testamentary papers, which were propounded, in Hilary Term, 1815, by the asserted executors, in the Prerogative Court of Canterbury, the deceased having left large personal property within the Province of Canterbury (b); and the admission of the allegation propounding them was opposed by counsel for the next of kin, upon grounds, however, quite distinct from any question of do

(a) The deceased, in early life went to India: but he returned to Scotland in 1798: and from that time to 1812 he usually resided at Hope Park House, as above.

(b) The deceased, in addition to considerable real and personal property in Scotland and the Island of Jamaica, was stated to have left personal property in this country to the amount in value of 70,0002.

micil. The Court [Sir John Nicholl] expressed itself as inclined to think, that the legal presumption against the papers propounded was, as contended, too strong to be encountered by the circumstances pleaded, and, consequently, that the allegation was inadmissible; as laying no case capable, if proved, of giving the papers propounded legal validity, according to our law. At the same time, it appearing on the face of the proceedings, that the deceased was a domiciled subject of Scotland, the Court itself suggested (a suggestion upon which it subsequently acted, after mature deliberation) the propriety of suspending its proceedings, until a suit, stated to be then depending in the Courts of Scotland, touching the validity of the identical papers propounded in this (the Prerogative) Court, should be decided; for the reasons, and upon the principles stated and illustrated to the foregoing judgment-intimating, that it might feel it its duty to pronounce for the validity of the testamentary papers, or that the deceased had died intestate, according as the Courts of Scotland should determine that question, either upon general principles, or upon principles applicable to the subject, if any, peculiar to Scotch jurisprudence.

Proceedings in the Prerogative Court were, accordingly, suspended, and the admissibility of the allegation propounding the asserted will and codicils of the deceased was never, finally, debated. For the papers in question having been, in effect, pronounced for by the tenor of three interlocutors of the Lord Ordinary of Scotland, bearing date on the 18th day of May, the 9th of June, and the 14th of November, 1815; and also of an interlocutor of the second division of the Court of Session there, bearing date the 7th day of June, 1816, the next of kin of the deceased declined any further opposition to probate passing in the Prerogative Court; and probate of the asserted will and codicils was thereon decreed, by the Prerogative Court, to the executors, on the second Session of Michaelmas Term, 1816; official, or authenticated, copies of the sentences of the Lord Ordinary, and of the Court of Session in Scotland, being first brought in.

Subsequent to this, however, the next of kin appealed from the above interlocutors of the Lord Ordinary, and of the second division of Court of Session, in Scotland, to the House of Lords; and that appeal, having been duly prosecuted, came to a final hearing, on the 27th of June, 1821; when their Lordships were pleased to reverse the said interlocutors, and to find that the asserted will and codicils were of no effect or avail in law, as testamentary dispositions. Upon this a proctor on behalf of the executors brought in the probate of the said asserted will and codicils of the deceased, decreed as aforesaid by the Prerogative Court of Canterbury, and consented to the same being revoked-whereupon the Court, on the fourth Session of Michaelmas Term in that year, proceeded to revoke the said probate of the asserted will and codicils; and finally to decree administration of the goods of the deceased as dead intestate (according to its own original impression) to certain next of kin-an official copy of the judgment of the House of Lords, above referred to, having first been brought into Court by the proctor for the next of kin.

CONSISTORY COURT OF LONDON.

HULME v. HULME.-p. 27.

(On the Admission of the libel.)

Cruelty may be, without actual, personal violence; and such cruelty (at least) when coupled with adultery, may found a sentence of separation on both grounds.

THIS was a cause of separation, à mensâ et thoro, by reason of cruelty and adultery, promoted by Harriet Hulme, of the parish of St. George, in the county of Middlesex, and diocese of London, against her husband, John Hulme, of the same parish, county, and diocese.

The libel pleaded, "that the parties were married in the month of January, 1819, and that they continued to live and reside together from that time till the beginning of February, 1820; that the said Harriet Hulme then quitted her said husband by reason of his violent conduct towards her, pleaded and set forth in the libel, and that she had never since lived or resided with him: It also pleaded, that in the same month of February, 1820, the said Harriet Hulme exhibited articles of the peace against her said husband, the said John Hulme, at the General Sessions held, for the county of Middlesex, at the Sessions House at Clerkenwell, and that, thereupon, the said John Hulme was bound by the Justices to keep the peace towards his said wife, himself in 2007., and two sureties in 100%. each."

In objection to the admission of this libel, so far as it went to set up a case of legal cruelty, it was argued, that the cruelty was laid to consist in menaces only, it not being pleaded that the husband had carried these, or any of them, into execution; even so far, as to be betrayed, in a single instance, into the commission of actual violence towards the wife. The case was distinguished in this respect from that of Otway v. Otway(a); in which a similar objection had been taken and over-ruled(b), as, though menaces were principally relied on in that case, still some (minor indeed) acts of violence were also charged on the husband, in order to found the prayer of the wife. The different circumstances of the parties of the two suits, respectively, in point of age, condition, &c. were also insisted upon: and the case of Otway v. Otway, throughout, was shown to be materially distinguished from the present, in many particulars; especially with respect to the more specific nature of the charges, and the time within which the proceedings were commenced, in the case of Otway v. Otway. The menaces, or even acts of inchoate violence (so calling them) charged in this libel, were admitted to be of the grossest description (c); it was also admitted that menaces only, sug

(a) 2 Phillimore, 95.

(b) Namely, on the admission of the libel; though no report of the argument, or judgment, is in print, that the editor is aware of.

(c) For instance, it was pleaded that the husband threatened on one occasion, "to cut his wife's arm off, and beat her brains out with it;" and, on another, (a few days after her confinement) "to pull her out of bed and kick her up and down the room" also, that he "once scized a red hot poker and brandished it, and threatened to run her through with it," and that he often attempted to strike her, &c. &c.

gesting the probability of great personal violence, might possibly constitute a case of legal cruelty. But the ground of holding the fitness of divorce, by reason of cruelty consisting in menaces only, was argued to be this--the probability of menaced violence, especially of a certain description, leading to, and terminating in, actual violence, of which Courts are bound to interfere not only for the redress, but also for the prevention. Hence it had constantly been inquired in such cases, was the Court to wait till the mischief was done, till the offence was consummated, before it intervened? Here, it was said, that argument does not apply: the parties have been separated upwards of three years, nor is it suggested that the husband is seeking either to compel, or even to persuade, the wife to return to cohabitation. Added to this, the wife has exhibited articles of the peace against the husband: and the husband is actually bound to keep the peace, towards her, himself in 2007. and two sureties in 1007. each. Consequently, the Court is not called upon, in this instance, to interfere for the prevention of mischief-the wife has resorted for that to another tribunal, the interposition of which she does not suggest to have been ineffectual: so that the ordinary ground for dealing with menaces as with legal cruelty seems to fail in this case. But,

The COURT

Was of opinion, that the husband's conduct as pleaded, notwithstanding all this, was of a nature to found a case of legal cruelty, and consequently that the libel was admissible in toto(a).

(a) This cause came to a final hearing on the by-day after Trinity Term, 1824, when the libel was held to be proved in both particulars; and a divorce was consequently pronounced for, on both grounds.

HIGH COURT OF DELEGATES.

MILLER v. BLOOMFIELD and SLADE.-p. 30.

An allegation-responsive to a libel thentofore admitted in the cause, pleading a church-rate including "stock in trade." [See vol. i. p. 499.]-suggesting, 1st, that the parishioners were omitted to be rated for "shipping;" 2dly, that several parishioners possessed of stock in trade, were altogether omitted to be rated in the said rate, and consequently that the rate was invalid-directed to go proof.

HILARY TERM,

1st Session.

PREROGATIVE COURT OF CANTERBURY.

OLIVER and TUKE v. HEATHCOTE.-p. 35.

(Upon an Objection to " Personal Answers.")

"Personal answers" are not confined to being mere echoes of the plea, accompanied with simple affirmances or denials; but the respondents are further at liberty to enter into all such matter as may fairly be deemed not more than sufficient to place the transactions as to which their answers are taken, in, what they insist to be, the true and proper light.

An objection taken to "answers" for redundancy, held, upon this principle, not to be sustained; and, consequently, over-ruled.

JOSIAS COCKSHUT TWISLETON, the party deceased in this cause, late of Osbaston Hall in the county of Leicester, died the 30th March, 1821, aged 82 years. A will of the deceased, bearing date the 4th March, 1818, was propounded on behalf of the Reverend John Oliver, and John Tuke, two of the executors named therein; and was opposed on the part of Mary Heathcote (wife of Bache Heathcote, Esq.), his only child.

It had been pleaded on her part, in reply to a condidit given in on behalf of the executors, that the deceased, for many years prior to the date of the will in question, was labouring under mental delusion, of which her allegation had also stated a variety of supposed instances; and, that he was not in possession of testamentary capacity at the time when the said will purported to bear date(a). It was pleaded by the executors, in rejoinder, that the deceased, though a man of singular and eccentric habits, and profuse in his expenditure, or an "unthrift," never laboured under mental delusion, until several months subsequent to the month of March, 1818, the date of the will. And in affirmance of that averment, they had proceeded to state numerous matters of moment and concern, in which the said deceased was engaged up to that period, and which he personally transacted; with the knowledge and approval (so pleaded) of the very parties now setting up that he was insane at those times, and had been so, for years preceding.

Among other specific instances of the deceased's capacity, up to the period aforesaid, pleaded by the executors, was the following, as stated in the ninth article of their rejoinder, or second allegation:

"That, after the said Josias Cockshut Twisleton, the party in this cause, deceased, had made and executed his last will and testament,

(a) In the month of November, 1818, the deceased had been found a lunatic and to have so been, without lucid intervals, for the space of two years then last past, under a "commission in the nature of a writ de lunatico inquirendo," which issued about that time out of Chancery, on the petition of Sarah Cockshut Twistleton, his then wife. And Mr. and Mrs. Heathcote, respectively, his son-in-law and daughter, afterwards petitioned for, and obtained, a "commission of lunacy" against the deceased; and were appointed committees of his person and estate, under that return.