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THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA

LOS ANGELES



SCHOOL OF LAW



THE ENGLISH REPORTS

ECCLESIASTICAL, ADMIRALTY, AND PROBATE AND
DIVORCE



CONSULTATIVE COMMITTEE



THE RIGHT HONOURABLE THE EARL OF HALSBURY,
LATELY LORD HIGH CHANCELLOR OF GREAT BRITAIN

THE RIGHT HONOURABLE BARON FINLAY OF NAIRN,
LATELY LORD HIGH CHANCELLOR OF GREAT BRITAIN



THE



ENGLISH REPORTS



VOLUME CLXIV



ECCLESIASTICAL, ADMIRALTY, AND PROBATE AND

DIVORCE

IV



CONTAINING



SPINKS (ECCLESIASTICAL AND ADMIRALTY), VOLS. 1 AND 2;
SPINES' PRIZE CASES; DEANE; SWABEY & TRISTRAM, VOLS. 1 TO 4



EDITORIAL NOTE

Only those cases are reprinted from Spinks' Prize Cases which
are not included in Spinks' Ecclesiastical and Admiralty Cases.
The Table of Cases at the end of this volume contains the
references to all cases included in Spinks' Prize Cases.



W. GREEN & SON, LIMITED, EDINBURGH
STEVENS & SONS, LIMITED, LONDON

LAW PUBLISHERS

1921



PRINTED IN GREAT BRITAIN BV

NEILL AND CO., LTD.,

EDINBURGH.

Alarcli 1021



The ECCLESIASTICAL and ADMIRALTY RE-
PORTS; being REPORTS of CASES heard
before the ARCHES and PREROGATIVE
COURTS of CANTERBURY and the CON-
SISTORY COURT of LONDON respectively,
the HIGH COURT of ADMIRALTY and the
ADMIRALTY PRIZE COURT, together with
such Cases as have been carried by Appeal from
those Courts respectively to the Privy Council.
By THOMAS SPINKS, D.C.L. Vol. I. Easter
Term, 1853, to Michaelmas Term, 1854, 16 & 17
Viet, and 17 & 18 Viet. London, 1855.



[1] IN THE GOODS OF WILLIAM SIMKIN, Deceased. Prerogative Court of Canter-
bury, May 6, 1853. Alterations in a will or codicil, bearing date in January,
1837, presumed to have been made prior to Jan. 1, 1838.

William Simkin died on the 20th July, 1847, leaving a will, dated 25th January,
1837, in which there were various alterations and interlineations. Both the will and
alterations were in the handwriting of the deceased. No evidence could be obtained
as to the time when the alterations were made. The will was found locked up in a
bureau, the key of which was in the possession of the deceased.

Dr. Jenner moved the Court to grant probate of the will as it was found, with
the alterations. He submitted that the presumption of law respecting alterations laid
down by the Superior Court in Cooper v. Bocket (4 Notes of Cases, 688 ; 4 Moore, P. C.
419) did not apply here. The will was made before the Wills Act came into opera-
tion, and there was no reason to presume that the alterations were not made during
the same year.

Sir John Dodson. Before the 1st January, 1838, these alterations would have been
entitled to probate. In the absence of evidence I apprehend that the general pre-
sumption of omnia rite esse acta must prevail ; and we must conclude that these
al-[2]-terations were made by the testator before that period. I therefore decree
probate of the will with the alterations. (a)

Proctor, Jellicoe.

(a) In Pechell v. Jenkinson, 2 Curt. 273, Sir H. J. Fust decreed probate of an
unattested codicil on the same principle. The will was dated in 1830, the codicil
had no date, and the testatrix died 20th January, 1839.



687971



2 IN RE DINMORE 1 SP. ECC. & AD 3.

IN THE GOODS OF RICHARD DINMORE, Deceased. Prerogative Court of Canterbury,
May 6, 1853. Signature of testator in the testimonium clause, not evidently
intended for his final signature. Probate granted on consent.



[S. C. 2 Rob. Ecc. 641.]
th(



Richard Dinmorc died on the 9th of April last, leaving personal property under
the value of 8001. The only testamentary paper found was one bearing date 1st Sep-
tember, 1842, in which his wife was appointed sole executrix and universal legatee.

This paper ended, " In witness whereof I, Richard Dinmore, have hereunto set my
hand and seal, this first day of September, one thousand eight hundred and forty-two."
There was no other signature of the testator, and no seal. There were three attesting
witnesses ; one of whom made an affidavit to the effect, " That the deceased had asked
him to come and attest his will ; that the deceased produced the will to him and his
fellow-witnesses, with his name already signed in the testimonium clause ; but made
no further acknowledgment of such his signature ; that such signature, as well as the
rest of the will, were in the handwriting of the deceased."

Counsel, in moving for probate, submitted, 1st, That such signature was declared
sufficient by 15 & 16 Viet. c. 24, s. 2, which provided that no will should be deemed
invalid by reason of the signature of the testator being placed in the testimonium
clause ; and, 2ndly, That the signature was sufficiently acknowledged ; and cited the
cases of Keigwin v. Keigwin (3 Curt. 610), Anne Ashmore (3 Curt. 758), Giles Davis
(3 Curt. 748) ; and, 3rdly, That the words " and seal " were mere surplusage, as the
act required no seal.

Sir John Dodson. I should, perhaps, not have hesitated to pronounce both the
signature and the acknowledgment sufficient, if the testator had omitted the words
"and seal." These words induce the belief that the testator did not intend the name
in the testimonium clause for his signature, but purposed adding another signature,
together with his seal. The act requires that [3] it shall be apparent on the face of
the will that the testator intended the name for his signature. I have some doubt of
its being so in the present case. Let the case stand over that inquiries may be made
respecting the parties entitled in distribution, and whether they will consent.

May 14. On the following Court-day proxies of consent were brought in from
a son and daughter of the deceased : but it appeared that there were some minor
children of a deceased son of the testator.

Counsel again moved the Court to grant probate of the will, and cited as analogous
the case of Francis Lamb (4 Notes of Cases, 561), in which Sir Herbert Jenner Fust
decreed probate of a will of which he had doubts, upon similar consent, notwithstanding
there were minors entitled in distribution.

Sir John Dodson. I am unwilling to put the parties to the expense of propounding
the paper as the property is so small. I decree probate of the paper.

Proctors, J. R. and G. Burchett.

IN THE GOODS OF THE REVEREND JOHN HEWLETT, Clerk, Deceased. Prerogative
Court of Canterbury, May 14, 1853. Unpublished depositions cannot be given
out of the custody of the Court, nor copies thereof be taken.

[S. C. 17 Jur. 630.]

Nathaniel Hewlett died in December, 1830, a widower, without (as was presumed)
any issue ; but leaving his brother and sister, the Rev. John Hewlett, and Mary, wife
of William Watson, his only next of kin.

A suit was afterwards commenced in this Court by Edward Wood, as guardian
of his wife Emma Wood, an alleged granddaughter of the deceased. An allegation
was given in and witnesses were examined ; but before publication the suit was com-
pounded between the parties, and letters of administration were granted to. Mrs.
Watson, the deceased's sister ; and a release was executed between the parties, which
would be a bar to any further proceedings being afterwards taken here.

The deceased's brother, the said Rev. John Hewlett, also died, and a suit was
instituted in the Court of Chancery for the administration of his affairs, entitled
Cooper v. Everett, in which it was necessary to ascertain who was at his death the
heir-at-law of the Rev John Hewlett ; and, by direction of the Master to whom such
cause was referred, an application was made to [4] this Court on the 10th March
last, to allow the depositions taken here in the suit of Wood v. Watson to be attended



1 SP. BCC. & AD. 5. BROADWOOD V. HOLLAND 3

with before the Master in the reference in the suit of Cooper v. Everett ; application
the Court then granted.

Accordingly, upon the 21st April last, the officer of this Court attended before
Master Humphrey with the original depositions, under instructions from the registry
that the said Master might open them for his own use on such reference ; but that
the same were not to be used by the parties in the suit, and that he, the said officer,
should wait and take back the evidence resealed by the Master.

The said Master read a portion of this evidence, and stated that as it was long,
and he had to make a report thereon to the Court, he could not do so effectually,
unless the original evidence, or an official copy of it, was deposited with him during
such reference ; and he, therefore, directed that a further application should be made
to this Court to permit either such original depositions, or an official copy, to be
deposited with him pending the reference before him.

Dr. Deane now moved the Court accordingly.

Sir John Dodson, The Master in the Court of Chancery is desirous of having the
original depositions taken in this Court, in the suit of Wood v. Watson deposited
with him. These depositions were never published ; and I apprehend, that however
much I might desire to comply with the Master's wishes, I am precluded from doing
so by the rules of this Court. In. permitting them to be attended with for his inspec-
tion, I have gone to the utmost length that either justice to the party concerned or
the rules of this Court will allow. I have been informed, too, that under the new
rules of the Court of Chancery there is no necessity for the course adopted ; but if
there were, I am not prepared to admit that, on that account, this Court can be called
upon to depart from its own rules. I cannot extend the order. The officer may
attend with the depositions as before.

Proctor, Tatham.

[5] BROADWOOD v. HOLLAND. The Consistory Court of London, May 17, 1853.
Proceedings in a suit for an inventory and account stayed until the result of
proceedings in the Court of Chancery for the administration of the estate are
known. When proceedings have been commenced in the Court of Chancery
the proctor is not justified in concealing that fact from the Court.

[S. C. 17 Jur. 653.1

Matthew Broadwood, late of Oxendon Street, Haymarket, died in the month of
September, 1840, intestate, leaving Charlotte Broadwood, his widow and relict, and
two minor children, David and Frederick. In the month of October, 1840, letters of
administration were granted to the widow. She afterwards married, and again became
a widow. On the 29th June, 1852, David Broadwood, the only then surviving son,
took out a citation under seal of this Court, calling upon the administratrix Charlotte
Holland, formerly Broadwood, to exhibit an inventory and account. On the 17th
November she appeared personally, and was assigned to exhibit the same on the next
Court-day. The cause then stood over until the 18th January, 1853, when the Judge,
Dr. Lushington, at the petition of the proctor, pronounced her in contempt for not
having exhibited the inventory and account as assigned, directed such contempt to be
signified, and, on the further petition of the proctor, gave leave for the administration
bond to be attended with and produced on the same being sued for at common law.
On the following day, January 19th, Mrs. Holland appeared before a surrogate, took
the usual oath, and was absolved from her contempt. A proctor then appeared for
Mrs. Holland, and brought in an inventory and account duly sworn to by her. On
the following Court-day, 26th January, the Court was moved to rescind so much of
the order of the. 18th January as directed the administration bond to be delivered
out of the registry and produced, on the same being sued upon at common law. The
Court refused to rescind the same, on the ground that such a course would imply
error on the part of the Court in having made such order ; whereas, in fact, at the
time of making the order, there was a clear breach of the bond in the non-delivery
of the inventory. But such inventory having been brought in on the following day,
and the ground of the order being thereby removed, the Court directed the said order
to be suspended. On the 4th sess. of Hilary term, the 10th February, the proctor
of David Broadwood declared he objected to the inventory and account, prayed to
be heard on his petition, and was assigned to deliver his act to Mrs. Holland's proctor
upon the bye-day. This assignation was continued until the 2nd sess. of Easter



4 BROADWOOD V. HOLLAND 1 SP. ECC. ft AD. 6.

term, 29th April, when, upon Broad wood's proctor praying further time, on the
ground that proceedings were pending in Chancery, counsel [6] appeared for Mrs.
Holland and said that that was a sufficient ground for her dismissal from the suit in
this Court, and moved the Court accordingly.

The judge complained that no notice of this motion had been given, and no papers
had been sent to him, and directed the matter to stand over.

Affidavits made by the solicitors concerned for the parties in the suit in Chancery
were brought in on both sides. From these it appeared that David Broadwood filed
a claim for the administration of his father's estate against Mrs. Holland the adminis-
tratrix, on the 22nd June, 1852, seven days before he cited her in the Consistory
Court; that it had been referred; that the master had taken the accounts, and was
nearly ready to make his report thereon ; and further, that the parties to the suit in
the Court of Chancery were identical with the parties to the suit in this Court.

Counsel now moved the Court to dismiss Mrs. Holland from this suit. The
maxim of law, nemo debet bis vexari, fairly applied. That it is not applicable merely
to a res judicata is shewn by the fact that the Courts of Common Law will interfere
sometimes to stay proceedings in ejectment, as in the case of Doe d. Pultney v.
Freeman, before Lord Kenyon (cited 2 Sellon's Pract. 144). The consolidation of
ictions proceeds upon the same principle. It has been recognised, too, in the
Ecclesiastical Courts. In Brotherton v. Hellier (2 Cas. temp. Lee, 134) Sir George
Lee said, " In the case of a creditor, or next of kin, who files a bill in Chancery and
prays an inventory there, the Court will oblige him to make his option which Court
he will proceed in ; because it is unjust that the executor or administrator should be
harassed in both Courts by the same person for the same thing." So in Pearson v.
Gainon (2 Cas. temp. Lee, 269), and in Middleton v. Eushout (1 Phillim. 247). Mrs.
Holland might have appeared under protest, but was at that time inops consilii. As
soon as her proctor discovered that the suit was pending in the Court of Chancery,
the application was made for her dismissal from the suit in this Court. The question
of the bond is entirely distinct ; that is between other parties. The order respecting
it has been suspended. The sureties would probably have a good answer when called
upon to shew cause why the bond should not be given out for the purpose of being
sued upon at common law.

Dr. Jenner opposed. The cases cited are not authorities to bind the Court, but
merely obiter dicta. The real question at [7] issue is the administration bond. The
affidavits shew there has been mal-ad ministration of the estate ; the administratrix
is in poor circumstances, and unable to pay the parties entitled in distribution ; their
only remedy, therefore, is against the sureties. This remedy would be taken away
if Mrs. Holland were to be dismissed from the suit.

May 17. Dr. Lushington. This is an application made on the part of the widow,
who is the administratrix in the case, that she may be dismissed from the proceedings
which have been instituted against her. This is opposed on behalf of the son, who
is entitled to part of the property, his father having died intestate ; and the prayer
on behalf of the son is that the Court will not dismiss, as I understand, the sureties
in the administration bond from any observance of justice to be enforced in this
Court.

Now, all the parties have grievously mistaken their way in this case grievously
so. The first proceeding in this Court bore date on the 29th of June in last year ;
and, as I understand, proceedings had already been commenced in Chancery on the
22nd of June.

Now, supposing the party was aware of these proceedings in Chancery, it was
a deception on the Court to have allowed the proceedings to take place here without
that being communicated to the Court. Whatever the effect might be which the
Court would have attributed to that suit, it was clearly a matter which ought to
have been made known to the Court for it to exercise its own judgment upon.
Instead of that the Court is unfortunately left in ignorance of the proceedings till
a late period, till the cause had gone on ; and the Court, according to the ordinary
course of proceeding, had no option but to pronounce Mrs. Holland in contempt,
which it never would have done, or thought of doing, had it been intimated that
there were proceedings in the Court of Chancery for the purpose of obtaining a due
administration of this estate.

However, so it was; and on the 18th of January, 1853, 1 did, at the prayer of



1 SP. ECC. & AD. 8. IN RE NAPOLEON BONAPARTE 5

the party, cause this contempt to be signified, and gave leave for the administration
bond to be produced on the same being sued for at common law.

Now, it is very true that Mrs. Holland was equally to blame in not making
known to the Court not having appeared that such proceedings were instituted
against her. If she had appeared and stated the fact, the Court would have held
its hand. It is equally clear, supposing the proctor for Mr. Broadwood to be aware
of the proceedings in Chancery, that the decree was obtained behind the back of the
Court, if I may [8] use the expression, because it was in ignorance of what it was
doing.

The course the Court would have taken, if it had been apprised of all these facts,
would have been as plain as it is possible to be. It would have said on the party
being cited, and being informed of the proceedings, " I hold my hand till the result
is known of what has taken place in Chancery ; " then if it had turned out that there
was a decree against the party proceeded against in this Court and in Chancery, and
that that decree could not be enforced without its aid and assistance, certainly then
the Court would have afforded its aid and assistance. That would have been the
state of the case instead of the Court doing what now unfortunately and unwittingly
it has done.

It appears that, on the 19th of January, Mrs. Holland took the usual oath; she
was absolved from her contempt; then she appeared by a proctor, and then for the
first time the Court was apprised of all these circumstances.

The course I have now to pursue is equally clear. I shall not dismiss Mrs.
Holland, unquestionably. The plea of alibi pendens, which in substance is intended
to be set up, does not apply to this proceeding, and cannot, so far as relates to the
bond being attended with. Of course it applies to the inventory and account ; that
is, the administration of the estate. That suit is going on in Chancery, and the
Court would never pretend to exercise its limited power for the purpose of ascertaining
whether she is really a debtor to the estate or not. But I shall not dismiss this suit
altogether for this reason if it should turn out that in the Court of Chancery the
decree passes against her, that she does not or cannot comply with that decree, then
I must hold the power and authority in my hand, if the Court of Chancery should
direct it, of ordering the bond to be attended with in the Court of Chancery, or
a Court of Common Law. And be it observed that this is not the first time when,
at the instigation of the Court of Equity, the bond has been directed to be attended
with in a Court of Equity or Common Law.

What I shall do is to stay all these proceedings till those in Chancery are known ;
and, upon their being known, at the instigation of that Court not at the suitor, I
do not bind myself to that^the Court will adopt those measures best calculated to
do substantial justice in the case.

[9] IN THE MATTER or THE WILL OF THE LATE NAPOLEON BONAPARTE. Pre-
rogative Court of Canterbury, Feb. 17, 1853. An original will, deposited in
the registry of the Prerogative Court of Canterbury, can only be delivered out
for the purpose of being given into the custody of the legal authorities of some
other country, and that upon good cause shewn.

[S. C. 2 Kob. Ecc. 606 ; 17 Jur. 328.]

Napoleon Bonaparte died on the island of St. Helena on the 5th May 1821,
leaving property under the value of 6001. within the province of Canterbury. His
will with seven codicils, which had been proved in this Court in August, 1824, by one
of the executors Charles, Count de Montholon, had remained in the registry up to
the present time. A proxy of consent had been executed by the Count de Montholon,
and an affidavit of Lord John Russell brought in, to the effect " that an application
had been made by the French government to the government of her Majesty for the
original will of the late Napoleon Bonaparte, now deposited in the registry of this
Court, to be delivered over to the French government ; that her Majesty's govern-
ment considered it advisable, on grounds of public policy, that snch application
should be complied with, and that the will should be delivered out of the registry to
her Majesty's principal secretary of state for foreign affairs, in order that the same
might be by him forthwith delivered over to the French government accordingly."
There was also an affidavit from the solicitor who had acted in administering the
estate, to shew that no one would be prejudiced by the motion.



6 IN RE NAPOLEON BONAPARTE 1 SP. ECC. & AD. 10.

The Queen's advocate (Sir J. D. Harding) now moved the Court, on these grounds,
to decree the will and codicils to be delivered out of the registry to her Majesty's
principal secretary of state for foreign affairs, in order to be delivered over to the
French government. He cited as precedents the cases of Mary Renton, 19th May,
1791 (not reported), Duncan Forbes, 23rd November, 1792 (not reported), and Sir
Herbert Taylor, 4th July, 1839 (not reported).

Sir John Dodson. This is an application at the instance of the lords commissioners
of the treasury that the will and seven codicils of the late Napoleon Bonaparte may
be delivered out of the registry of this Court to her Majesty's principal secretary
of state, for the purpose of their being given up to the French government. The
ground on which the application is made is that of public policy. That is the reason
assigned in the affidavit of Lord John Russell, and it has been relied upon in a great
measure by the learned counsel who makes the [10] motion, and who stated that
it was sufficient of itself to induce the Court to grant the prayer. But I apprehend
that it is by no means sufficient to state that the proposed measure will be advan-
tageous in point of public policy ; it is further necessary to shew, and the learned
counsel seemed to feel it, that the step proposed to be taken is conformable to law
and comes within the authority of the Court. Undoubtedly this Court, like other
Courts, would be most desirous to carry into effect the views of her Majesty's govern-
ment; but however desirous it may be to do so, it cannot venture to go beyond the
limits of legal authority. In a country governed by law it is necessary that the
Court should look to the law of the country and not to the will and desire of the
government. For instance, in the Prize Court of Admiralty it was by no means
unusual for the Crown to send down an order that a vessel seized as a prize of war
should be delivered up, and the Court obeyed it unless there had been a final decree
condemning the ship and cargo to the captor. When that has been the case, the
Crown has no longer power to release it ; the property becomes vested in the captor. (a)
Until that sentence has passed, it is the property of the Crown ; consequently the
Crown has the power of delivering it up, but after that period it has not. In this
case the learned Queen's advocate has pointed out to the Court, not only that this
motion is consonant with the views of her Majesty's government, but has also cited
cases to shew that it is within the power of the Court to order the will and codicils
to be delivered out of the registry for the* purposes he has mentioned. The first case
cited was that of Mary Renton, which occurred in 1791. In that case the will was
proved here, and ordered to be transmitted to Edinburgh to be there deposited in the
proper office for the registry of wills. But it was necessary, for legal purposes, that the



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