having a direct interest as entitled in
distribution. Middleton, re.

22
2. The stat. 21 Hen. 8. c. 5. applies only
to such as are next of kin at the time of
the death. Therefore the Court made
the de bonis non grant to the executor of
the administrator (the sole next of kin
at the death) in preference to persons
entitled in distribution, who had receiv-
ed their shares and signed releases. Sa-
vage v. Blythe.

226
3. Administration de bonis non granted to
a person, entitled under a deed of gift
from the first administratrix to the whole
beneficial interest, in preference to one
who was not next of kin at the time of
the death, and who consequently had
no statutable right. Almes v. Almes. 230
4. Chose in action to wife. Husband, ad-
ministrator, dies without altering pro-
perty, and makes a will: his administrator
with will annexed takes administration
de bonis to the wife; that administration
called in by her next of kin and revoked,
the property not being altered by the
husband. Kinaston v. Mills.
231
5. Estate not vested by law or equity, ad-
ministration de bonis non to the next of
kin. Amhurst v. Bawdes.
6. Administration de bonis non to a feme
covert granted to the representative of
the husband, administrator, in exclusion
of the wife's kin. Darley v. Whaddon.

232

237

absentia of the executor, when there are
proceedings depending in Chancery.
Davies, re.
31

ADMINISTRATION, LIMITED.

1. An administration de bonis non, limited
to a certain legacy, granted to the repre-
sentative of the substituted legatee,
without citing the representative of the
residuary legatee, resident abroad, but
by practice entitled to the general de
bonis grant; no claim to this legacy hav-
ing, since the death (in 1797) of the re-
siduary legatee, (also the executor and
legatee for life) been made by his repre-
sentative. Steadman, re.
21
2. An administration (limited to substanti-
ate proceedings in Chancery)—which
was decreed, on the next of kin being
cited and after due inquiries for a will,
and was called in by the executors of a
will, not produced till long after-di-
rected to be re-delivered out, and the
executors, who might have taken a cæte-
rorum probate, condemned in costs.
Harris and Wiggins v. Milburn.
3. A will, in existence after the testator's
death, being accidentally lost and the
contents unknown, administration limit-
ed till the will be found granted (on jus-
tifying securities) to the widow alone,
with a minor daughter, entitled in dis-
tribution. Campbell, in re.

23

211

4. Administration pendente lite and limited
to certain property, granted, by consent,
to one of the parties. Schoolmasters of
Scotland v. Fraser.

222

5. 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 grant-
ed 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 es-
tate 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 de-
ceased's estate. Skeffington v. White. 225

-ADULTERY.

1. The Court cannot separate on improper
conduct short of actual adultery. The
law does not require direct evidence of
the very act committed at a specific time
and place; but the Court must be satis-
fied that actual adultery has been com-
mitted. Hamerton v. Hamerton. 13
2. Where the wife is charged with adul
tery, her conduct and declarations, on a
confession of guilt by the alleged parti-

192

ceps criminis being communicated to her,
are admissible evidence on behalf of the
husband. Harris v. Harris.
160
3. The wife's adultery being proved, and
a similar charge against the husband
failing, his relief is not barred by a slight
want of caution on his part. Harris v.
Harris.
4. In suits for adultery the party is not
limited to the contents of the libel, but
may plead fresh charges, and obtain a
sentence on facts not existing at the
commencement of the suit; but publica-
tion is a bar to further pleadings as of
right. Middleton v. Middleton.
5. Divorce-by reason of adultery, on the
part of the wife-how affected by delay
in instituting proceedings-by alleged
condonation, &c.-Ultimately granted.
Ferrers v. Ferrers.

299

354

sive to an exceptive allegation reserved
to the final hearing, the Court being of
opinion that that part if otherwise ad-
missible, was not material, and that the
remainder probably would not in the
event be of sufficient importance to de-
lay the cause. Mynn v. Robinson. 72

APPEAL.

1. Though the regular appeal from a ju-
risdiction not peculiar but subordinate is
to the Diocesan, yet, if the Judge of the
subordinate and diocesan courts be the
same person, the appeal may be per
saltum to the Metropolitan: but the rea-
son must appear by the formal instru
ments in the cause. Beare and Biles v.
Jacob.
113

2. The Court is not legally obliged to de-
fer to an appeal till an inhibition is served,
nor is there any distinction whether all
the acts be done on the day the appeal
is asserted, or some on a subsequent day:
therefore, the Court having over-ruled
the objections to the admission of an al-
legation, on the following Court-day ad-
mitted the allegation, notwithstanding
an appeal had, in the interim, been as-
serted. Middleton v. Middleton.

ATTESTING WITNESS.

299

A testamentary instrument may be esta-
blished against the evidence of all the
subscribed witnesses, but such a case
would require to be supported by the
whole res gestæ, by strong probability
arising from the conduct of all parties,
and by the improbability of the practice
of fraud, circumvention, or undue in-
fluence. Mackenzie v. Handayside. 92

B.

BAR.

160

1. The wife having failed in a charge of
adultery, and a recriminatory plea on
the husband's part being proved; cruel-
ty, and the introduction of his wife to a
female of loose character (the wife's
guilt not being connected with such in-
troduction), form no bar to his prayer
for divorce. Harris v. Harris.
2. Cruelty cannot be pleaded by the wife
ibid.
in bar of a charge of adultery.
3. Recrimination, in a suit of divorce by
reason of adultery, alleged in bar, &c.—
Party dismissed. Forster v. Forster. 358
4. Protest, Proceedings in a Court of Brus-
sels, pleaded in bar to a suit here for a
divorce by reason of adultery, not sus-
tained. Sinclair v. Sinclair.

412

A chapel being shortly before 1735 built
by private subscription, and subscribers
agreeing, out of the pew rents, to pay
the rector of the parish a yearly stipend
for performing divine service, a license
was obtained from the bishop to the
Rector and his successors, who, from
time to time, performed therein paroch-
ial duties, but there was no proof of con-
secration, nor any of composition, be-
tween the patron, incumbent, and ordi-
nary; such chapel is merely proprietary,
and the minister, nominated by the rec-
tor of the parish and licensed by the
bishop, cannot perform parochial du-
ties therein, nor distribute the alms col-
lected at the Lord's supper.

Proprietary chapels are anomalies un-
known to the constitution, and to the ec-
clesiastical establishments of the church
of England, and can possess no parochial
21
rights. Moysey, D. D. v. Hillcoat.

CHURCH RATE.

1. In a suit for subtraction of church-rate,

the Court will not, at the prayer of the
defendants, issue a monition for the pro-
duction of parish books, which are not
shown to apply immediately to the ques-
tion at issue: and on the merits, the rate
being pronounced for, the defendants
condemned in costs.

2. In questions of subtraction of
church-rate, the Court having jurisdic-
tion on the subject-matter is bound, un-
less stopped by a prohibition, to pro-
ceed to the trial of a select vestry by
which the rate was made. Goodall and
Gray v. Whitmore and Fenn.

CHURCHWARDEN.

160

1. Election of churchwarden. Alien dis-
qualified; effect of the poll considered
as to the other parties, on the disquali.
fication of the person elected. Re-elec-
tion. Anthony v. Seger.
309
2. Proceedings against a churchwarden,
for interfering to obstruct and prohibit
the form of singing, &c. which had been
authorized by the minister, sustained.

Question of practice.-Whether on a
citation to appear on a day fixed, and
receive articles, &c. the person is enti
tled to demand that the articles shall be
delivered on the first Court-day, or that
otherwise he should be dismissed.--Not
so held. Hutchins v. Denziloe. 365
3. Parochial offices. Non-resident partner,
in a house of trade, not exempted from
serving the office of churchwarden. Ste-
phenson v. Langston.

CONDONATION.

437

1. In answer to a suit for restitution of
conjugal rights brought by the husband,
legal cruelty being established, but a re-
conciliation and matrimonial intercourse
having afterwards taken place, the Court
enjoined the wife to return to cohabita-
tion, holding, that there was no proof
of subsequent misconduct by the hus-
band, sufficiently removing the bar of
condonation, and reviving the previous
cruelty, to entitle the wife to a sentence
of separation.

2. Reconciliation will supersede the
ground of complaint in the Ecclesiastical
Court, as it annihilates articles of sepa-
ration at common law.

3. The force of condonation as a bar
varies according to circumstances. The
condonation by a husband of a wife's
adultery, still more repeated reconcilia-
tions after repeated adulteries, create a
bar of far greater effect, than does the
condonation by a wife of repeated acts
of cruelty.

4. On the execution of articles of se-
paration, not followed by matrimonial
intercourse, the wife's reluctant assent

1. Costs, [though in the discretion of the
Court, are in its legal discretion guided
by former precedents, and are almost
universally decreed in suits for church-
rates, where the rate is pronounced to
be subtracted. Goodall and Gray v.
Whitmore and Fenn.

160
2. Where capacity and volition are estab-
lished, a party suing in forma pauperis
who after a long acquiescence calls in
probate of a will, on a suggestion of in-
capacity, fraud, and circumvention, may
be condemned in costs; and the taxation
be suspended. Wagner v. Mears. 197
3. The costs of exceptive allegations ten-
dered on both sides (the admission
whereof was suspended till the final
hearing, and then not prayed to be re-
ceived), not allowed to be taxed'against
a party condemned in costs. Bird v.
Bird.

211
4. Costs of the wife, having a sufficient
independent income, not allowed to be
taxed against the husband during the
proceedings. Wilson v. Wilson.

CRIMINAL SUIT.

527

1. In a vestry-meeting for civil purposes,
as a full latitude of discussion must be
allowed, mere coarse expressions do
not constitute "brawling," but on proof
of an act of "smiting," the Court is
bound, whatever may be the origin of
the dispute, to proceed to award pun-
ishment, under the 5 & 6 Edw. 6. c. 4.
and 53 Geo, 3. c. 127.

A party pronounced excommunicate,
sentenced to seven days' imprisonment,
and condemned in costs. Hoile v. Seales.

1817; a separation was then agreed up-
on, but, on a reconciliation, matrimonial
cohabitation and intercourse were re-
newed. The court on appeal-holding
that adultery was not proved; that cru-
elty up to 1817, was proved, and that,
though afterwards there was no perso-
nal violence, his conduct, exciting rea-
sonable apprehension of it, revived the
former cruelty-decreed a separation,
and condemned the husband in the costs
in both Courts, exeept those incurred
by certain charges of adultery.

2. To entitle a wife to a separation by
reason of cruelty, there must be ill-treat-"
ment and personal injury, or the reason-
able apprehension of personal injury.

3. Aggravations of cruelty may arise
from the station of the parties; from the
condition of the sufferer; from natural
or even acquired feelings.

4. If legal cruelty be established, a
subsequent reconciliation and matrimo-
nial intercourse form a legal bar to a se-
paration for such preceding cruelty. And
the question then is, whether any sub-
sequent acts take place furnishing fresh
grounds of legal complaint, or at least
reviving former wrongs, and, in con-
nection with those former wrongs, cre-
ating reasonable apprehension of a re-
newal of ill treatment.

5. Cruelty generally consists of suc-
cessive acts of ill-treatment, if not of
personal injury, so that something of a
condonation of the earlier ill-treatment
necessarily takes place.

6. If a wife, after legal cruelty, con-
sents to a reconciliation and to matrimo-
nial cohabitation, former injuries would
revive by subsequent misconduct of a
slighter nature than would constitute
original cruelty, though the reconcilia-
tion would be a bar if no further ill-
treatment took place. Westmeath v.
Westmeath.

238

2. Divorce by reason of cruelty.-What
circumstances constitute cruelty in con-
struction of law. Dismissed. Evans v.
Evans.
310

"

$311.438.
D. 2.23.

1. The Court is bound to admit articles
by a church warden against an incum-
bent for frequent irregularities in the
performance of divine service, and of
parochial duties, and also for his violat-
ing the churchyard: nor (the suit being
commenced in April 1828, and the al-
leged offences being laid from Septem-
ber 1824, till January 1827) is the lapse
of time any bar. Bennett v. Bonaker. 21
2. Upon the proof against a clergyman,
of repeated and habitual acts of incon-
tinency, coupled with neglect of duty
and other conduct affording just scan-
dal and offence to his parishioners, the
Court is bound to proceed to depriva-
tion. Burgoyne v. Free, D. D.
3. A clergyman may be deprived for for-
nication without previous monition or
suspension. Sentence of deprivation
affirmed with costs. Free, D. D. v.
Burgoyne.

192

226

4. Proceedings under the stat. 13th Eliz.
c. 12. against a Clergyman, for preach-
ing doctrines contrary to the articles of
religion.-Deprivation. Bishop, H. M.
Procurator General, v. Stone.

DILAPIDATION.

445

Dilapidation.-Demand against a seques-

VOL. IV.

75