stand, and admitted the article. But, in the absence of all such averments, I must direct the article to be reformed, by striking out the epithets attached to the letters: and I am the more inclined to pursue this course, because, if it can be shown by the wife that her husband kept up a constant correspondence with this woman, she will have all the effect from that proof, that the article in its present shape could supply. Libel reformed.

The libel being admitted, a motion, founded on an affidavit that the husband was in France, was this day made to the Court,-that it would direct a list of the witnesses, intended to be examined on the libel, to be given to his proctor, in order to enable him to communicate with his client upon the interrogatories. An affidavit, on the part of the wife, (who opposed the motion) was also before the Court.

Per Curiam.

This is an application to order the proctor for the wife-the party proceeding to furnish to the adverse proctor a list of witnesses, some time anterior to their production. The general practice is quite otherwise. (a) It is incumbent, therefore, upon the husband, to show some good ground for so unusual an application; but what does the affidavit state? That the deponent received a communication this day, and also a letter last week from Mr. Morse; and to the best of the deponent's knowledge, information, and belief, he, Morse, is at the present time residing in France." The charges are said to be serious, and to run through several years; and that it is, on that account, the more requisite to have a full opportunity of preparing the defence. But all the difficulty arises from the absence of the husband himself: the whole matter rests upon that fact: and it is said that he did not quit this country till long after the institution of the present suit. The question, then, is, whether a mere voluntary absence is a sufficient justification for the Court to depart from its ancient practice, and at the same time inflict a hardship upon the wife-the complainant-in the postponement of her

cause.

In matrimonial suits, the power of the Court is in personam. The Court cannot enforce a decree upon a party who is out of the kingdom. Here the absence is voluntary; no cause is assigned for it; and nothing further is stated to induce me to violate an established rule of practice. If the absence were occasioned by particular circumstances,-from illness or urgent business, the Court might then be induced to afford every facility for the proctor to communicate with his party: but if I were to accede to this application, it would occasion great inconvenience and delay to the wife, not only in this, but in every succeeding stage of her cause. The more serious the charges, the more proper it is that the husband should be ready and prompt in his defence. Without looking into the counteraffidavit, I am of opinion that there is no sufficient ground before me to sustain this application.

Motion rejected.

(a) Oughton's Ordo Judiciorum, tit. 80. See also Ingram v. Wyatt, vol. i. 94, 97. [3 Eng. Eccl. Rep. 42.]

222 SCHOOLMASTERS OF SCOTLAND v. FRASER. T. T. 1829.

HIGH COURT OF DELEGATES.

The PAROCHIAL SCHOOLMASTERS of Scotland v. FRASER and Others. p. 613.

The appellants (interveners in the court below) being described in the commission of delegates as "the Parochial Schoolmasters of Scotland," quære whether, notwithstanding the absolute appearance of respondents, the inhibition ought not to be relaxed, on the ground that the appellants, not being a body corporate, had no persona standi in their collective capacity. Administration pendente lite and limited to certain property granted, by consent, to one of the parties.

THIS was an appeal from the Prerogative Court of Canterbury in the case of Colvin v. Fraser, ante, 113.

To a decree (issued at the instance of Mr. Fraser,) "against all persons in general having or pretending to have any right, title, or interest under or by virtne of the alleged will and codicil of John Farquhar, Esq. the party deceased, to appear and see proceedings if they should consider it for their interest so to do," an appearance had been given in the court below, on the first session of Hilary Term, 1828, on behalf of ،، the Parochial Schoolmasters throughout Scotland;" and a proctor alleged them to be the residuary legatees named in the will of the deceased, and prayed an answer to their interest. (a) But the assignation, to answer to such interest, was never complied with.

On the 1st of February, 1828, a proxy under the hands and seals of ten parochial schoolmasters of the county of Haddington: and, on the 23d of April, similar proxies from sixty-four of the parochial schoolmasters of eleven other Scotch counties were filed in the Prerogative registry; and after the sentence in that Court a petition for a commission of appeal, presented to the Lord Chancellor on behalf of "the Parochial Schoolmasters of Scotland," was granted; and, an inhibition having been served, a citation dated on the 5th of May 1829, issued, calling on Mr. Fraser and the other next of kin "to answer to the said Parochial Schoolmasters in their cause of appeal; and further to do and receive as unto law and justice should appertain; under pain of the law and contempt thereof, at the promotion of the said parochial schoolmasters."

On the first session of Easter term, the 8th of May 1829, appearances were given for the parties cited; a proxy on the part of John Farquhar Fraser, Esq. was exhibited, and the proctor for the Parochial Schoolmasters" was, at the prayer of the adverse party, assigned to libel and bring in his appeal next court and to exhibit a proxy.

On the second session, the proctor for Mr. Fraser alleged, "that the Parochial Schoolmasters of Scotland were not a body corporate, and he moved the Con-delegates to direct the appellants to give security for the costs of the appeal, and also to decree letters of administration under certain limitations, and pending the appeal, to be granted to Mr. Fraser or Edward Vaughan Williams, Esq. his nominee, on giving justifying security. "

These applications were grounded on two affidavits made by Mr. Fraser: the first concluded by stating in substance, "that in consequence of the decrees (issued at his instance) appearances were given in the said

(a) The will is printed, See p. 114 et seq. notis.

cause on behalf of the Parochial Schoolmasters of Scotland, as interveners, respectively claiming interests under the alleged will, ante, 125, that on the 25th of February last, the judge of the Prerogative Court pronounced against the alleged will and codicil, and decreed the letters of administration to be re-delivered out to this deponent; that the present appeal was interposed, not by the executor, the party principal in the aforesaid cause, but on behalf of the Parochial Schoolmasters of Scotland, whose proctor had appeared in the aforesaid cause as an intervener on their behalf; that such Parochial Schoolmasters were not, as he had been informed and believed, a body corporate, and that he verily believed that every individual member of the said society resided in North Britain, and out of the jurisdiction of this court."

The second affidavit, in order to move for an administration pending the appeal and limited to the receipt of certain rents of leasehold premises, interest on mortgages, and the principal of a mortgage (the mortgagee having become a bankrupt), set forth circumstances showing that the estate was incurring great risk from the want of a personal representative.

On these applications being made to the Court of Con-delegates, it was suggested that the petition to the Lord Chancellor was on behalf of the "Parochial Schoolmasters of Scotland," and not in the names of certain individuals of that body; that the commission, inhibition, and citation all followed the petition, but that it now appeared that the "Parochial Schoolmasters" were not a body corporate, (a) and under these circumstances very considerable doubt arose, whether (even admitting, that as individuals, they had a sufficient interest) they had collectively a persona standi for prosecuting the appeal, and whether the inhibition ought not forthwith to be relaxed.

The counsel for the schoolmasters contended, that even if they had not a right to appeal in their collective capacity, the persons who executed the proxies were entitled to proceed as individuals; that they had originally appeared in conformity to a decree to see proceedings issued at the instance of the next of kin, that the objection was now taken too late, as their interest had been admitted in the court below, both by the judge and by the adverse party in consenting to their intervention, and to their being heard by counsel; and further, that if the objection could be taken at all in this court, it ought to have formed the ground for an appearance under protest to the inhibition.

The counsel for the next of kin contended, that the formal instruments, viz. the petition, commission, inhibition, and citation, showed that the appeal was prosecuted on behalf of the body and not of individuals of the body, and that this rendering all the proceedings vicious, the present objection was fatal. They denied that the interest of the Schoolmasters had been admitted in the court below; for that, on the contrary, all questions respecting their right had been specially reserved by the court; (b) and beyond that, as it now appeared on the face of the proceedings, that they were not a body corporate, the court was bound ex officio, to notice the fact, even if the parties were barred from raising

(a) Quære, whether if a body corporate, the appearance as given was good. It ought to have been by A. B. Syndic of the Parochial Schoolmasters of Scotland. Oughton, tit. 13. (n.)

(b) See ante, p. 125. notis.

the objection, owing either to their having appeared absolutely and not under protest, or to any other cause.

The Con-delegates referred the consideration of this question and of the two affidavits to the whole commission; but on the 3d of June, the motion for the limited administration being renewed, they decreed it (the other parties not opposing the same) to Mr. Fraser, limited as specified in the affidavit, and until the hearing of the matters referred to the whole commission, or until some further order.

The Judges Delegates were:-Mr. J. Bayley, Mr. J. Park, Mr. Baron Garrow, Drs. Arnold, Gostling, Blake, Haggard, Chapman.

The cause was called on for hearing before the whole commission on the 18th of June, when the counsel for the appellants declared that their parties proceeded no further in the appeal.

The limited administration, granted on the third of June, was then brought in; and the court decreed the inhibition to be relaxed.

Mr. Brougham and Dr. Addams, counsel for the Appellants.

Dr. Phillimore, Dr. Lushington, and Mr. E. V. Williams, counsel for the Respondents.

HAMERTON v. HAMERTON.-p. 618.

In a suit for separation by reason of the wife's adultery, after the arguments of counsel are closed and after the court has delivered its opinion, that, though culpable and suspicious conduct had been, adultery had not been, proved, it is a fit exercise of discretion to rescind the conclusion, for the purpose of admitting an allegation pleading further matter to establish the wife's guilt.

THIS was an appeal prosecuted on the part of the wife, from the Arches Court of Canterbury;(a) and the præsertim of the appeal was, "that the Judge had, on the third session of Hilary Term, 1829, rescinded the conclusion of the cause, and given leave to the proctor of William Medows Hamerton, to bring in a certain allegation theretofore by him tendered."

The allegation was immediately, upon the same session, brought into the registry.

After the usual proceedings in the Court of Delegates, the cause stood assigned for informations and sentence before the whole commission(b); and now came on for argument.

The King's Advocate, Mr. W. E. Taunton, and Dr. Addams, for the Appellant.

Mr. Campbell, Dr. Lushington, and Dr. Dodson, for the Respond

ent.

The Court pronounced against the appeal, and in favour of the order or decree appealed from, and remitted the cause.

(a) Ante, pp. 13 and 20.

(b) The Judges under this commission were:-Mr. Justice Burrough, Mr. Baron Hullock, Drs. Arnold, Chapman, and Curteis.

SKEFFINGTON v. WHITE.-p. 626.

An administration de bonis non, granted in 1827, of an intestate who died in 1790, limited to assign a leasehold property not severed in the deceased's lifetime, and only mortgaged during an original creditor administration (which was granted on the renunciation of the next of kin at the time of the death and which expired in 1806) revoked; the next of kin for the time being (in whom all the beneficial interest in the deceased's estate was vested) not having been cited when the limited grant was made, and there being a suggestion that such grant was surreptitiously obtained, and that there was a surplus belonging to the deceased's estate.

THIS was originally a cause or business of citing Henry John White "to appear and bring into and leave in the registry of the Prerogative Court of Canterbury, the letters of administration of the goods, chattels, and credits of Thomas Hubbert deceased, left unadministered by Alexander Hubbert, whilst living, a creditor of the deceased, and limited, so far as concerned all the right, title, and interest of Thomas Hubbert in and to several pieces or parcels of ground, messuages, warehouses, buildings, hereditaments, and premises with the appurtenances, situate in the parish of Saint Mary Magdalen, Bermondsey, Surrey, described and comprised in certain indentures of lease bearing date the 23d of June 1788, and 7th of March 1791, and the residue and remainder of the terms of years therein granted, (a) and all benefit and advantage to be had, received, and taken therefrom, but no further or otherwise, theretofore granted by the Court to Henry John White, as a person for that purpose named by and on the part of William Davis, Benjamin Shaw, Sir Charles Flower, and John Green, and to show cause why the same should not be revoked and declared null and void."(b)

(a) The lease of the 23d of June 1788, was for the term of seventy-nine years. The demises under the lease of the 7th of March 1791, were for various terms; some had expired, and the longest term was for forty-eight years. These leases were stated on the part of Sir L. Skeffington, to be of considerable value.

(b) Previous to the grant of limited administration, two affidavits, the substance of which was as follows, were filed:

John Green of Blackheath, Esq. made oath, "that he is one of the parties on behalf of whom application has been made for administration of the effects of Thomas Hubbert deceased, limited to all the deceased's estate and interest in certain hereditaments and premises (as comprised in the two above mentioned leases:) that by indenture dated the 23d of June 1818, the freehold and inheritance of the said hereditaments and premises became vested in the deponent, together with W. Davis, A. Jordaine, B. Shaw, and Sir C. Flower, subject to the said two indentures of lease and three annuities of 1157., 1251., and 4201. thereon charged, and in manner therein mentioned; the two former annuities being payable to Leonora Logie, widow, and the latter to Arabella Spriggs, widow; that the said indenture of lease dated the 23d of June 1788, with other title deeds relating to the said hereditaments and premises, has been in the possession of the deponent and said other parties or their agents from 1807; and the said indenture of lease, dated the 7th of March 1791, from 1824 to the present time; and he and they have been in the possession and in the receipt of the rents of the said premises, and have paid and discharged the taxes, rates, and other out-goings from 1818 to the present time; and the said several annuities have been from time to time paid by the deponent until their determination on the death of the said annuitants respectively; Mrs. Logie having died in 1821, and Mrs. Spriggs in 1824; that the said A. Jordaine is dead, and that B. Shaw is his surviving executor; that he (the deponent) verily believes, that certain original indentures dated the 31st of December 1790, the 27th of September 1802, and 6th of September 1805, (referred to in the proceedings with respect to the grant of the limited administration,) are so lost or mislaid that they cannot now be found, and that there are not any more authentic copies in the possession of the deponent, or of the said other parties, or their agents, than those produced. That in respect to a certain original deed poll, dated the 31st of January 1805, referred to, and to be produced, and appearing cancelled, the same is now in the same plight and condition as when it came into his possession with the other VOL. IV. 29