testatrix to the cancelled paper, in mind and intention, which will authorize the Court to give it the sanction of its probate.

I could certainly comply with no such requisition. In the first place, I could have no proof that this, any more than the former, declaration, referred to this identical paper. But, secondly, and principally, admitting that it referred to it, I could by no means collect, from the declaration, that perfect adherence of the testatrix to the paper, throughout, to every part of it, which alone could justify me in departing from the ordinary presumption of abandonment furnished by the act of cancellation. The reason which the deceased is made to assign for having destroyed the paper-namely, her doubt as to its validity-is rather a singular reason-admitting it however to have been her reason, non constat, that it was her only one. She had given away, in legacies, more than the amount of her property; and that might have operated with her as a reason for destroying it. Allowing it, ex hypothesi, to be fully proved, that the deceased intended "to make a new will"-non constat, that it was to be a will of precisely the same tenor and effect as this, presuming this to have been that will referred to by the deceased, as the one which she had destroyed. Any person, much more a young lady, at the deceased's time of life, may be supposed to have varied, or departed altogether from testamentary intentions once held, in the course of three years, without any stretch of probability.

With this impression of the case, I consult the interests of all parties, in staying these proceedings in limine, by rejecting the allegation; holding the facts pleaded insufficient to sustain this paper, as they will neither show, that this very instrument ever was a finished will, nor that it was cancelled by the deceased, sine animo revocandi.

Allegation rejected.

STEADMAN v. POWELL.-p. 58.

Probate of a will refused to the executor as being the will of a married woman, and consequently invalid in law. Administration of her effects committed to her husband, whose interest, as such, had been denied by the executor. A marriage, in Ireland, between the parties, held to be proved by circumstantial evidence. Its alleged nullity, on account of its celebration by a Popish priest, held to be not proved.

MARGARET STEADMAN, otherwise Powell, died on the 22d of March, 1820, having been, for nearly forty years preceding, with the exception of the last fifteen months, in the service of her Grace the Duchess

Dowager of Rutland. At the time of her death she was in possession of personal property to the value of about 1500/., accumulated by savings from monies of her own acquirement, in the Duchess of Rutland's service; which monies, as she acquired them, the deceased had been in the habit of investing in the purchase of stock in the public funds, in the name of her brother, Mr. George Steadman (party in this cause).

The deceased left behind her a regularly executed will, bearing date the 2d of October, 1819, in which will she described herself, as "Margaret Steadman (otherwise Powell), spinster;" and the will is so signed. She had passed, however, for the last five-and-thirty years of her life, by the name and title of Mrs. Powell; and appears to have considered

herself, and was universally reputed, the lawful wife of James Powell, (the other party in the cause) until within about two years of her death. From that time it is to be inferred that the deceased considered herself as a feme sole, in consequence of having obtained something in the shape of a legal opinion, against the validity, in law, of a marriage, had under the circumstances then stated by her to have accompanied her marriage, in fact, with her reputed husband. Under this impression, believing herself at liberty to dispose of her property by will, she made and executed two wills, successively; the first, bearing date the 4th of May, 1818; the second, on the 2d of February, 1819, being the will already mentioned.

Some months after the death of the deceased, on probate of that will being applied for, by Steadman, as one of her executors, a caveat against the same passing, was found to have been entered, on behalf of Powell, alleging him to be the lawful husband of the deceased. His interest, as such, being denied by the executor, was propounded in an allegation, which pleaded (in substance) that the parties had been duly and lawfully married, in Dublin, some time in the latter end of the year 1786, according to the rites and ceremonies of the church of Ireland, as by law established; together with cohabitation, the birth of issue, and the general reputation of their being husband and wife from that time. A responsive allegation on the part of the executor, pleaded merely, first, the statute 19 Geo. 2. c. 13. Irish, enacting, "that every marriage celebrated after the 1st of May, 1746, between a papist and any person who hath been, or hath professed himself to be, a protestant, at any time within twelve months before such celebration of marriage, or between two protestants, if celebrated by a popish priest, shall be null and void, to all intents and purposes, without any process, judgment, or sentence of law whatsoever;" 2dly, that Powell and the deceased respectively professed themselves to be, and were, respectively, at the time in question, protestants; 3dly, that their pretended marriage in question, was celebrated by a popish priest.

This cause was argued, and stood for sentence, upon the evidence taken in support of the facts stated in these several allegations. JUDGMENT.

Sir JOHN NICHOLL.

This, in substance, is an issue purely matrimonial, although it occurs in a testamentary suit. The point in issue is simply, whether the party deceased, who is described, and who describes herself as Margaret Steadman, otherwise Powell, died a feme sole, or the lawful wife of James Wakeford Powell. In the former event, the deceased has died testate, and probate of her will is to be granted to George Steadman, the brother of the deceased, and an executor named in her will, the one party in this cause. As a married woman, it is not suggested that the deceased had any authority to make a will-consequently, in the latter event, her will, so styled, is a mere nullity, and the administration of her effects is to be committed and granted to Powell, her husband, the other party in the cause.

The interest of Powell, the alleged husband, has been denied generally, by the executor, and is propounded in an allegation which has been given on his behalf pleading him to have been "duly and lawfully married to the deceased in Dublin, some time in the latter end of the year 1786, according to the rites and ceremonies of the church of Ire

land"-together with cohabitation, birth of issue, and general reputation from that time downward. An allegation has also been given, on the part of the executor, which pleads, first, that marriages in Ireland between papists and protestants, or between two protestants, are absolutely null and void, if celebrated by a popish priest, under an Irish act of parliament-secondly, that Powell and the deceased were protestants respectively when married, as pretended, and were married by a popish priest; and, consequently, that such their pretended marriage was and is null and void to all intents and purposes.

Upon the face of the pleas and proceedings, two questions present themselves, first, whether these parties were married at all; secondly, whether, being so, they were lawfully married-a point, indeed, to which the executor's general negation of the interest of the alleged husband, as contained in the proceedings, is somewhat narrowed by the shape of his plea. An attentive investigation, however, of both questions, is due to the justice of the cause, and it may be convenient, for a reason which will presently appear, that the Court should address itself to these questions separately; and first, as to the former.

The facts and circumstances of the case, as pleaded and proved, which are applicable to the first of these questions, are, briefly, as follows:Margaret Steadman, the deceased, was an attendant upon the present Duchess Dowager of Rutland, and accompanied her Grace to Ireland, whither she proceeded, in the summer of 1784, to join her husband the late Duke of Rutland, then in Ireland, of which kingdom he had been recently appointed Lord Lieutenant. Powell, the party in this cause, was at that time in the service of General Finch, one of his Grace's Aid-de-Camps, and living, as such, at Dublin Castle, or the Phœnix Lodge, near Dublin, the official residences of the Irish Vice-Roy; so that Powell and the deceased, on the arrival of the latter in Ireland, were members, in a manner, of one family. In the summer of 1786, the deceased became pregnant, as she said, and as it was "rumoured,” by Powell-on becoming acquainted with which pregnancy, her mistress, the Duchess, refused to continue her in her service, unless as the wife of Powell. It further appears, that Dr. Preston (then or soon after Bishop of Ferns), at that time private secretary to the Duke, interested himself to procure a marriage between the deceased and Powell, at the request of the Duchess-and caused it to be intimated to the latter, through Emerson, a fellow servant, that his marriage with Steadman was necessary to either of the two keeping their places. A fact of marriage between the parties, to say the least, was asserted by themselves, and was generally understood by others, to have taken place accordingly. Nor was this permitted by the Duchess to rest upon the report of the parties, or upon general rumour merely-an instrument purporting to be a certificate of the marriage was produced to the Duchess of Rutland, and was shown by her to the Duke, her husband; who, being satisfied (as it should seem) by inspection of this certificate, that the parties were really married, suffered the deceased to retain her situation in his wife's service. This certificate is pleaded to have been lost or mislaid-it is said, by the Duchess of Rutland, to have been torn or destroyed, as she understood, on the occasion of some quarrel between the parties. It is further proved, that, from and after that time, the deceased was constantly addressed by the name, and treated as the wife of Powell-that she was permitted by the Duke and Duchess to lie in

at the Phoenix Lodge where she gave birth to a son, who was baptized as her lawful issue by Powell-that, on the return of the Duchess from Ireland, the deceased accompanied her, still as her attendant-and continued in her service, uninterruptedly, until compelled to relinquish it by bodily infirmity, in the month of January, 1819-that, during this whole interval, Powell, and the deceased, acknowledged each other as husband and wife, and were so reputed, and taken by all who knew them that Powell was under the necessity of living much apart from the deceased, both whilst he continued in the service of General Finch, and when, upon quitting it, he became a king's messenger, in which capacity he was occasionally absent in foreign parts; but that he frequently did, and was permitted, at all times, to cohabit with the deceased, as well at the several residences of the Duchess of Rutland, specified in the plea, as elsewhere-lastly, that the deceased had two other children, the issue of her connection with Powell, born in this country-one (a daughter) in the house of the Duchess of Rutland, in Arlington Street-both of whom were constantly owned and acknowledged, by the parties themselves, to be their lawful issue; were maintained and educated as such at their joint expense; and were constantly reputed, and taken for such, by their friends, relations, and acquain

tance.

Now it appears to me, that this evidence does sufficiently establish a fact of marriage between the parties. Its foundation is not the mere assertion of the parties, together with contemporary rumour or report, although these alone, possibly, under the circumstances, might justify the Court in inferring a fact of marriage; but a certificate of marriage is at the time produced, plainly satisfactory to the parties who suggested the marriage-one, at least, of whom, is to be presumed no incompetent judge of its authenticity-to omit any mention of the Bishop of Ferns, who is to be deemed, in some sort, privy to the transaction, and to have lent it, throughout, the sanction of his countenance. That the certificate in question was satisfactory to the Duke and Duchess, is plainly to be collected, as well from the positive testimony of the latter, as from their suffering the deceased to continue in their service, and even to give birth to her issue under their roof-circumstances which can only be ascribed to their perfect confidence in the genuineness, at least, of the certificate, not to say in the validity of the marriage purported to be certified.

The absence of stricter proof of a fact of marriage in the suit is, in my judgment, fairly accounted for, by the time and place, taken conjunctively, when and where the marriage was had. The locus contractus shows that such stricter proof may be dispensed with the lapse of time suggests to the Court the peculiar propriety of dispensing with it in the present instance.

And, first, as, in Ireland, marriages may be had without any celebration in fucie ecclesiæ, or in the presence of witnesses, it would be unreasonable to deny that a marriage had, in Ireland, may be proved by slenderer evidence than is requisite to the proof of a marriage celebrated in this country. With us, too, in England subsequent to the marriage act, the proper, not to say the sole, evidence, in this matter, is the register-book-a medium of proof, which, of course, is excluded where the question respects the factum of an Irish marriage, at least of this description. The general matrimonial law of Ireland is, what that of this country was prior to the marriage act; and as marriages in England were

proveable by circumstantial evidence prior to the marriage act, marriages in Ireland, I apprehend, are proveable by the same species of evidence at this day. If this be so, a marriage of some sort is proved in the present case to all intents,and purposes-for I can scarcely figure to myself stronger proof of a fact of marriage (at this distant period from the time of its celebration), by circumstantial evidence, than is to be collected from the depositions taken on the husband's plea.

Upon the whole, then, I incline to think that sufficient proof is furnished of a fact of marriage-in furnishing which, the party whose interest is denied, has discharged himself of the obligation which the law imposes upon him. The next question is, whether sufficient proof is also adduced of the alleged nullity, the burthen of proving which, I am of opinion, rests with the adverse party-the party setting it up in plea. I must observe, however, in the first place, that all presumption is in favour of the validity of the marriage, the marriage itself being once held to be proved. And, first, the presumption of law is clearly in its favour— "semper præsumitur PRO matrimonio," being the constant legal maxim upon these occasions. It has been said, indeed, that this being, at best, a secret, or clandestine, marriage, is not entitled to that presumption in its favour; and that the maxim upon which it is claimed for it, only operates upon marriages regularly celebrated. To this position I cannot, exactly, accede. The circumstances under which the marriage was had, suggested privacy as to the time of celebration-and the marriage, so far as respected the mere time of celebration, certainly was a secret marriage. But though a secret marriage, it was tainted by no character of fraud-it was not a marriage which the policy of the law discountenanced, or one which it either would or could have interfered to prohibit—it was the very contrary of all this. I am of opinion, therefore, that the general legal presumption in favour of this marriage, is not at all rebutted by the mere circumstance of its being kept intentionally secret, to answer a special purpose, as to the precise time at which it was solemnized.

Nor is the general presumption of law the only presumption in favour of the validity of this marriage. A strong presumption in its favour arises from the circumstances under which it was had. All parties must have been anxious that it should be validly solemnized: nor can any ground be suggested why, when a marriage between Powell and the deceased was once determined upon, a mode of effecting it should have been resorted to, in which its own nullity was internally involved.

Such, however, it is asserted to have actually been, upon the ground of its celebration by a popish priest; so that it becomes necessary to state and examine the evidence upon which that assertion rests.

The party who has pleaded, and who, as I have just said, is bound to prove that the marriage was celebrated by a popish priest, has produced not a single witness in support of that part of his plea. The proof is attempted to be drawn from the mouths of the witnesses examined on the adverse allegation, who are argued to have disproved their own case— with what success it remains to enquire.

The only witnesses from whose depositions this inference can be attempted to be drawn, are Mr. Hamilton, the deceased's solicitor, and her Grace the Duchess of Rutland.

Mr. Hamilton deposes to having been sent for in the month of April, 1819, to prepare a will for the deceased, who had then recently quitted