tion at issue between the parties; it was sufficient to observe, that if fairly executed by the testator, with an ample knowledge of its contents, it would have the effect of recognizing and rendering legal the will it refers to, respecting which the testator's mind might have been previously fluctuating. The circumstances attending the execution of the last will were certainly such as to excite the vigilant attention of the Court; the consolidation of the two instruments into one appeared to have been effected by agreement of the parties interested, but it was not negatived that this might not have been done by desire of the deceased; he was deaf and blind, and had been for some time confined to his bed; it was to be lamented, that, in such a situation, the deceased's real intentions had not, at the time of executing the will, been more pointedly ascertained; but still, if those intentions were proved, the Court was bound to pronounce for the will. He might have understood what was going on, though prevented by his infirmities from expressing his assent more perfectly than he did; and it was to be presumed that he would not have lent his hand, as he did, for guidance to sign the will, had he not intended it as an expression of his concur. rence in that act. There was no proof of the case of control by the parties interested set up on the part of the next of kin; they had pleaded only occasional deafness in the deceased, but that was no proof of his incapacity. One of the witnesses who attended him constantly, stated only an occasional wandering of his mind, and that only within a fortnight of his

death, but the will in question was executed eighteen days prior to that event. Another, who called upon him within that time, proved that he conversed very collectedly about the sale of some wood belonging to him, and other matters of business. His deafness was said to be only occasional; deafness was a disorder always greater or less according to the state of the body; cold, amongst various other causes, tended greatly to augment it; and it was not improbable but that the deceased's deafness might have been greatly diminished by so long a confinement to his bed. It was material to look to the contents of the wills: the greater part of the property was given to the Fishers and Wheelers, for whom he had a great regard, living on terms of great intimacy, and receiving numerous civilities from them. Now, if their intentions had been fraudulent, the first will would not have given so much to his relations, and comparatively so little to them; they might have introduced a few trifling legacies to give a colour to the transaction, but they would not have done so to the extent of that will. was, therefore, most probable that the augmentation of the bequests to these parties in the latter will originated with the testator himself, though by what means could not appear, as the instructions came from the parties; but if that will, when read, was adopted by the deceased, it was equally valid as if prepared pursuant to his own verbal or written instructions, The fact of its execution then took place in the presence of one of the deceased's own relations'; there was no appearance of any con

It

straint being used, and the act was positively supported by the evidence of the two subscribing witnesses. Under these circumstances, the Court was of opinion that the mind of the testator went along with the act of guiding his hand to sign the paper in question, which must, therefore, be pronounced for, as containing his will, but without costs against the next of kin.

MATRIMONIAL CAUSES.

Consistory Court, Doctors' Com

mons.

Parnell (acting by Thomas Rownell, his Committee), against Purnell. This was a question as to the competency of a lunatic to prose cute, by the agency of his committee, a suit against his wife, for a divorce, by reason of adultery.

A libel was offered to the Court on the part of the plaintiff, stating that the parties (Mr. Peter Parnell, and Ann his wife, of Islington, Middlesex) were married in June 1790; that they lived together from that period, until some time in the year 1807, and had two children, a son and a daughter. About that time, the intellects of the husband became deranged, and he was in consequence removed to a house for the reception of insane persons. His malady continuing with but little prospect of abatement, upon the necessary inquisition being taken, ascertaining that fact, letters patent were issued by the Court of Chancery, appointing Mr. Rownell committee of the lunatic's person and property. The libel then proceeded to state, that shortly after the cohabitation of the parties had thus necessarily

ceased, the wife formed an adulterous intercourse with one Philip Crask; that she passed as his wife, and had several children by him; with a detail of other particulars tending to support the charge of adultery.

The admission of this pleading to proof was opposed by the wife's counsel, on the ground that the power of the committee of a lunatic extended only to the protection of his property; that in a civil proceeding, between a man and his wife, for a divorce à mensâ et thoro, the complaining party alone was entitled to sue, and that the judicial separation which would be effected between the parties by a sentence of divorce, had already, in effect, taken place, in consequence of the lunatic's situation.

Sir William Scott observed, that it had not been stated in argument; and it was certainly not within his experience of the practice of the Court, that a suit of this nature had ever before occurred. It was impossible, therefore, to decide upon the objections taken in the present case from precedent, but the decision must be ruled by principle and analogy. In this point of view, the question seemed to divide itself into two considerations: 1st, whether a lunatic has a right to seek a remedy for his wife's profligacy; and, 2dly, if he has, whether there is any other mode of doing so than the one which has been adopted in the present case. Upon the first point, it appeared absurd to assert that the husband's being visited with the affliction of mental derangement was sufficient to exonerate the wife from the obligation of fidelity imposed by the marriage contract; and that she should be

suffered with impunity to live in a state of open profligacy, and engraft a spurious issue upon the property of the lunatic husband: this would be admitting that there exists a wrong, for which it is impossible to apply a remedy; a proposition which no system of jurisprudence, however imperfect, will distinctly recognize. The situation of a lunatic is such as to call for redress of injuries more urgently than any other. If, then, he has the right which has been claimed, and which the Court is of opinion that he has in the present instance, the only remaining question is, by what means it is to be enforced; and to this the answer seems obvious, that it must be by the same means by which his other rights are protected-the agency of his committee; to him is committed the general power of protecting the person, the estates, and the personal property of the lunatic; and the injury which either or all of these might sustain, by the wife's course of life, is sufficient to justify the present proceeding. It is true, instances have occurred where the committee has applied to the Court of Chancery for directions as to the commencement of any legal proceeding; but this is only where the propriety of such a proceeding is at all doubtful; and in which case, the committee, who is only the substitute of the Lord Chancellor, does well to resort to him, as the legal protector of all lunatics and infants, for directions. This Court, however, has no such protecting power, and can only decide upon the matter at issue between parties, according to the rules laid down by its law and

practice. Upon the question of analogy, the case seems equally clear; in other cases of legal imbecility of mind, such as that of infants, &c. their guardians have the power of bringing suits even to the dissolution of the important contract of matrimony. Upon each consideration, therefore, it appears clear that the lunatic has the right, by his committee, of asking for a sentence of this Court, so materially affecting his own and his children's interests; and, therefore, the libel now offered for that purpose is admissible to proof.Admitted accordingly.

Consistory Court, Doctors' Com

mons.

Foulkes against Foulkes.-This was an application to the Court for an augmentation of the alimony allotted to Philippa, the wife of Mr. John Foulkes, solicitor, on her obtaining a sentence of divorce by reason of cruelty and adultery, and it was founded on the fact of an increase in the husband's income since the sentence.

It appeared that the divorce was pronounced for in December 1802. At that time Mr. Foulkes's income arose principally from his practice as a solicitor; and the Court, under all the circumstances of the case, had allotted to the wife 150/. per annum, conceiving that sum, with reference to the husband's circumstances, to be as much as was necessary for her support in the decent state of retirement in which it was to be presumed she would live, under her peculiar situation. Upon the death of Mrs. Foulkes's mother in 1803, Mr. Foulkes succeeded, in right of his wife, under his mar

Mant v, Peyton.-This was an action of slander, brought by a gentleman, who had been formerly a surgeon in the Navy, when he was confidentially employed by persons interested in the Mediterranean prizes, and had since been in the militia service, against a Captain in the Navy, the nephew of Admiral Peyton. The plaintiff being about to be married to a Miss Winkworth, whom he has since married, the defendant arrived from abroad at Deal, where her family resided, on the 7th of August last, and hearing to who the lady, whom he had long known, was about to be united, said, at the house of Mr. Trownsell, in the presence of her grandmother and aunt, and Mr. and Mrs. Trownsell, that the plaintiff was a lying swindling rascal; and that if Miss W. married him, she would go to ruin; that if the family were not satisfied with his assertion, a friend of his, Capt. Campbell, of Portsmouth, would corroborate the fact; that the plaintiff was a great brute and a liar, of a most savage disposition, and very unfit for a husband for Miss W.; that he was flourishing away with property he had sold abroad in the Mediterranean, which consisted of prizes made by the squadron, and that Capt. Campbell was ready to corroborate this. Miss W. was in town at this time, preparing for the marriage, which was to be celebrated the next day; and in consequence of these words, the witness, Miss Iggulden, the lady's aunt, wrote to her mother the same evening, and the mar riage consequently did not take place till a week after the day for which it was fixed. Upon their

cross-examination the witnesses admitted that they had heard similar reports to the plaintiff's disadvantage two years before, but these were satisfactorily explained. away before he was received as a suitor. They also admitted that the defendant's communication was made to none but intimate friends of the family, and was considered as confidential; but

Lord Ellenborough thought, that the plaintiff ought not to be nonsuited upon this evidence, which was enough to go to the Jury, whether the occasion warranted the communication, and whether it was made bona fide in the discharge of a friendly duty, or officiously so as to bear the character of malice.

Mr. Topping then addressed the Jury for the defendant, and called Mr. Trownsell, who proving that the communication, which was originally made to him before he sent for the lady's family, was entirely confidential.

Lord Ellenborough held, that the law threw around it its protection, and the plaintiff was nonsuited.

The witness, Miss Iggulden, referring to the letter which she had written to the lady's mother, after the speaking of the words, to refresh her memory with them, Mr. Topping objected to this proceeding, the letter not being writ ten immediately afterwards, as a mere depository for those words, but as a free report of them for a purpose foreign to the present action.

Lord Ellenborough allowed her to adopt this poceeding; and said, that it had been held by Lord Mansfield, that this was not only