To the obliteration with ink, of the legacy of 5000. to Mr. Thomas Scruby, in the bottom line of the fourth, and top line of the fifth, sheet of the will, different considerations apply; and this, indeed, is the only part of the case upon which the Court has felt, all along, any sort of difficulty. The ground of distinction between this, and the other part of the case is, that it is impossible to ascertain the precise time at which the obliteration was made. It might have been made at any time within ten or eleven months before the deceased's death-for the deceased, as I shall presently observe, is proved to have had the will so long in his possession or custody, though for nearly the two years next after its execution, it had remained in the hands of Mr. Webb. But, on the other hand, the high probability is, that it was effected on the Friday evening preceding his decease, at which time he was, decidedly, insane. On that evening it is proved, by Taylor's evidence, to which I have already adverted, that the deceased was alone, with the instrument before him, for from half an hour to an hour, for the express purpose, as he assured the witness, of "putting some writing, or putting some more writing into it." It should seem from the deposition of the same witness, that the deceased had an equally apposite occasion of performing the operation on the same Friday morning, for he, probably, had been busy with his will, prior to his dispatching Taylor for a candle and sealing wax for the purpose of securing it in an evelope, as she speaks to his having done, on the morning of that day. Be this, however, as it may, to the morning, or the evening, of that Friday, I am clearly of opinion, that this obliteration is, with far the greater probability, to be referred.

Still, however, it must be admitted, that the Court has no direct evidence of the time, or, consequently, of the deceased's state of mind at the time, of the act done. It must have recourse, therefore, to the usual mode of ascertaining it in such cases-which is, by looking at the act itself-for this I take to be the general rule, where a will is traced into the hands of a testator, whose sanity is once fairly impeached, but of whose sanity or insanity at the time of doing or performing some act with relation to that will, there is no direct constat. In other words, the agent is to be inferred rational, or the contrary, in such cases, from the character, broadly taken, of his act.

Applying, therefore, this test to the present question, I am led to consider, whether the obliteration of this legacy of 5000. to Mr. Thomas Scruby, under all the circumstances, were a rational act in itself—and whether it were rationally done, and performed, as to the mode of obliteration resorted to by the deceased. Now I own that I can bring myself, exactly, to neither of these conclusions.

And, first, how was the act done or performed? If a person of sound mind was about to revoke a legacy, he would probably erase it, or strike his pen through, or draw lines across it; and, if a person of only ordinary caution, he would note the revocation in the margin, accompanied with its date, and authenticated by his signature, or the initials of his name. Has any thing of the sort occurred in this instance? The mode of obliteration appears to have been this:-The testator appears to have let drops of ink fall on the passage from the quill part of a pen, and then to have smeared it over with the feather end; and that so incautiously, as in part to efface, at the same time, his own signature at the bottom of the fourth sheet. Now this is hardly a sane mode of obliteration. It is observable, too, that the testator has suffered the phrase, "my eleven last VOL. II.

6

mentioned legatees," to stand at the very foot of this obliteration, though, if valid, it reduces the number to ten; and that the name of Mr. Thomas Scruby is left as an executor, though it is purported to be struck out as a legatee.

Nor, secondly, can I quite be of opinion that the act itself, independent of the mode of action, is perfectly rational: it is so far, at least, irrational as to be capable of no assignable reason, which, perhaps, under the circumstances, is all that is required. It has however been attempted to be shown, that something of a reason did exist for the testator altering his mind as to Mr. Thomas Scruby's legacy; and to this end interrogatories have been addressed to, I believe, all the witnesses, as to a misunderstanding which is supposed to have occurred between the deceased and Mr. Thomas Scruby, subsequent to the making of the will. Now, in the first place, it is not quite clear whether this misunderstanding did not occur prior to the execution of the will; but, be that as it may, this at least is certain, that any coolness which it might have occasioned between the parties had subsided, long before the deceased ever had this will in his possession. For it appears by the evidence of nearly all the witnesses, that the difference in question (as to the origin of which, too, the deceased had the candour to admit himself in the wrong) occurred in the spring of the year 1818, and that it lasted, as one of the witnesses expressed it, "a very little while." And it is manifest by the deposition of Mr. Webb, that the will was in his custody from the time of its execution till the month of May or June, 1820, when it was delivered to the deceased by Mr. Webb (of his own mere motion, and not at the request of the deceased, as for any purpose of alteration or cancellation) only ten or eleven months prior to the death of the deceased.

And this last piece of evidence, by the way, nearly disposes of the argument, derived from what has been termed the deceased's "recognition" of the obliteration, contained in his declaration, already stated, to Mr. William Scruby, that he had "scratched his pen over Tom Scruby when he was a little angry with him about the small tithes.” Supposing, however, that the deceased's averment on this head had not been erroneous on the face of it, as it plainly was, still the Court could scarcely have ventured to build any superstructure on the foundation of what fell from a man, in the state of derangement which the deceased is proved to have been in at the time of making this supposed "recognition."

Upon the whole, then, the Court has reason to be satisfied that the testator was was of unsound mind, memory, and understanding, at the time, as well of cancelling this legacy to Mr. Thomas Scruby, as of defacing the bequests at the top of the fifth sheet of his will; and I have no hesitation in pronouncing for the will, as it originally stood, in both respects.

CONSISTORY COURT OF LONDON.

STANHOPE v. BALDWIN, otherwise GOSSTER, falsely called STANHOPE.-p. 93.

A marriage annulled by reason of an undue publication of banns, under 26 Geo 2. c. 33.

IN THE COMMISSARY COURT

OF THE

DEAN AND CHAPTER OF WESTMINSTER.

The Office of the Judge, promoted by CLINTON v. HATCHARD.— p. 96.

Chiding and brawling in a church," penalty of, under 5 & 6 Edw. 6. c. 4. No person can be a lecturer, although elected by the parishioners, without the rector's consent-unless there be an immemorial custom to elect without his consent.

EASTER TERM,

1st Session.

ARCHES COURT OF CANTERBURY.

SCHULTES v. HODGSON.-p. 105.

1. The admissibility of articles is not debateable, in an appeal Court, upon an appeal entered more than fifteen days after their admission by the Court à

quo.

2. In criminal suits, the defendant's answers, upon oath, are not to be required, even to those heads or positions which are not, in themselves, criminatory.

DURANT v. DURANT.-p. 114.

(An Appeal from the Consistorial Episcopal Court of Litchfield and Coventry.)

Whatever is to be done, personally, by the party principal in the cause, requires, in strictness, a personal service of the notice, or decree, for doing it, upon the party principal. Hence, the service of a decree for answers upon the proctor, will not justify the Court in putting the principal in contempt, if those answers are not brought in.

THIS, in the first instance, was a cause of divorce, or separation à mensá et thoro, by reason of adultery, promoted and brought by Mary

Ann Durant, wife of George Durant, Esq. of the parish of Tong Castle, county of Salop, in the diocese of Lichfield and Coventry, and province of Canterbury, against the said George Durant, Esq. in the Consistorial Episcopal Court of Lichfield and Coventry. The present appeal was entered, on the part of the original defendant, from a sentence or order of that Consistory Court, pronouncing him in contempt, and decreeing him to be signified, pursuant to the statute 53 Geo. 3. c. 127.

The proceedings had in the Court below are stated in the judgment. JUDGMENT.

Sir JOHN NICHOLL.

The course which the present appeal has taken relieves me from the obligation of determining on the merits of it; for it appears, if I may so say, to have determined itself. But it involves a question of some nicety in practice; upon which it may be convenient that I should embrace. the opportunity, thus afforded me, of delivering my opinion.

This is an appeal from the Consistory Court of Coventry and Lichfield, where the suit originally depended, being a suit of separation à mensa et thoro, promoted by the wife against the husband for adultery. The citation was returned, personally served on the 18th of January 1820; but no appearance was given for the party cited, till the 8th of May, 1821; and then only, it should seem, in consequence of a notice served upon the party on the 17th of April preceding, that he would be put in contempt and signified, failing to appear upon that day. A libel and allegation of faculties were brought in on the 22d of May, and were admitted on the 3d of July, when a general negative issue to the libel was given for the defendant, and a decree for answers, both to the libel and allegation of faculties was prayed for the plaintiff. The decree was subsequently extracted, and was returned on the 9th of October, personally served upon the defendant's proctor, who appeared to the decree, and was assigned to bring in his client's answers by the next Court. This assignation was continued from Court day to Court day, till the 15th of January, 1822, when the Judge (having already previously directed a notice to be served on the party, and which was actually so served on the 8th of November, that he would be put in contempt if his answers were not filed as on the 20th of November preceding, his proctor then appearing, and still appearing from Court day to Court day, and praying further time) pronounced the defendant in contempt, from which supposed grievance this appeal has been duly prosecuted to its present stage. Now, on the face of these proceedings, there are strong grounds to suspect, that the defendant has been, vexatiously, endeavouring to obstruct the course of justice to the plaintiff. No appearance even was given till more than a year and a quarter after the return of the citation; and though something has been said of compromise, and of proposed arrangement, which partly relieves from the impression produced by that fact, still, it is to be remembered, that this appearance, at last, is only obtained by threats from the Court of resorting to its compulsory proA general negative issue is then given to the libel (quite out of the usual course), not even confessing the marriage; so that the Court, with no constat before it of a fact of marriage, could allot the wife nothing on the account, or in the nature, of alimony. Lastly, an interval of nearly six months occurs between the decree for answers, and the step appealed from-the answers to the libel, though said to be ready,

cess.

being then unfiled, and the answers to the allegation of faculties not even being asserted to be in a state of forwardness(a).

66

It is not to be denied that the proceedings here stated compose a case of great, I may even say of extreme hardship upon the wife. Still, however, the Court would have been put to some difficulty to pronounce against the present appeal, in the absence of "a personal service, upon the party, of the decree for answers;" in which absence I should hurdly have been led to decide, that the present appellant was duly and lawfully put in contempt. And this is a question which the Court might have had to determine judicially, with reference to the merits of the present appeal, had it been made a point of, and insisted upon, by the counsel for the appellant, and had not the appeal been pronounced for, less upon the merits, than under a sort of arrangement between the parties(b). As with any immediate reference therefore to the present appeal, the question, in a manner, merges, still however it may be convenient, I repeat, as a guide to practitioners, in these and similar cases, that I should state, and examine, somewhat indeed extra judicially, and without the point having been argued, what the correct practice, in this matter of personal answers, is.

And here, in the first place, it may save time to inquire what was the old practice, in the matter inquired of; for if that be consonant to reason and analogy, and has undergone no authoritative alteration, it is, or ought to be, the practice of the Court at the present day.

From the old practice then as laid down by Oughton, Clerk, and Consett, it is to be collected that personal answers were twofold-being to be had, in certain causes, on special application, from the proctor in the cause, as well as from the principal. This is distinctly laid down by Oughton; for instance, in the 16th sec. of his 61st title(c), " de litis

(a) The appellant's proctor merely prayed "further time," upon a statement that his client's "answers to the libel, settled by counsel, had been just left with him," but that his answers to the allegation of faculties “ had not yet come to his hands."

(b) The following is the minute of the judgment entered by consent. "Bedford (proctor for the appellant) prayed the Judge to pronounce for the appeal, and complaint made and interposed in this behalf, and for his jurisdiction, and that the Judge, from whom this cause is appealed, hath proceeded wrongfully, nully, and unjustly—to reverse the order or decree appealed from-to retain the principal cause-and therein to allow time for him the said Bedford to give in his client's answers. Box (proctor for the respondent) prayed the Judge to pronounce against the appeal, and complaint made, and interposed in this behalf, and that the Judge, from whom the same is appealed, hath proceeded rightly, justly, and lawfully-to affirm the order or decree appealed from, and to retain the principal cause-and therein to decree the said Bedford's party in contempt, and his contempt to be signified according to the act of parliament, in that case made and provided, for not having obeyed the order or decree of the Judge from whom this cause is appealed, and to condemn the appellant in costs. The Judge having heard the proofs read, and advocates and proctors on both sides thereon, by interlocutory decree, having the force and effect of a definitive sentence in writing, pronounced for the appeal and complaint made and interposed in the said cause, and for his jurisdiction, and that the Judge, from whom this cause is appealed, hath proceeded wrongfully, nully, and unjustly, reversed the order or decree appealed from-retained the principal cause-and therein assigned Bedford to give in his client's answers the next Court day."

A new decree for answers was also further directed to issue, at petition of Box.

(c) Nota etiam, quod procurator actoris, postquam lis sit contestata, si crediderit se in aliquo videlicet in aliquâ positione materiali libelli, præsertim posi