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The respondents did not appear.
STEPHEN, C. J. I think we ought to order the immediate discharge of this man, and thus avoid the delay and expense of issuing and executing the writ. He is committed for six months certain (apparently) for not finding sureties-instead of being committed for that term, "unless he should in the meantime find" such sureties. This clearly makes the warrant of commitment bad, and is a sufficient ground for the order the Court is about to make. It is not necessary, therefore, that we should formally decide upon the point raised as to the information, viz., whether or not it is bad as having been sworn to by a third person-a stranger-quia timet on behalf of the person threatened. I may, however, intimate my opinion that a justice may, in his discretion, in a case like this, or in any other where he has reason to believe, from his own knowledge or from information on oath, that a breach of the peace is likely to be committed, require sureties of the peace from the person threatening to break it. It would seem, indeed, that the demanding of such sureties, when strictly quia limet, 'must be by the person who fears the personal injury. But I conceive that the discretion and duty of justices are not limited to such cases. They are the conservators of the public peace; and if they are satisfied that it is likely to be endangered, it is their duty to preserve it by whatever preventive powers the law gives them, whether the information they act on is given by the person threatened, or by another. A refusal to do so on the part of a justice would appear to me something contrary to the very nature of his office.
HARGRAVE, J. I concur on both points. There is no doubt the conviction is bad for not being in the alternative, and therefore I agree that the prisoner should be discharged. I am clearly of opinion, however, that no objection can be taken to the information, by reason of its having been sworn by a person other than the one threatened. It is the duty of magistrates to act on all satisfactory information brought before them for the
prevention of breaches of the peace. It is not a private but a public wrong that is sought to be prevented. The sureties become bound to the Queen, not to the individual who has been put in fear by the threat. There are many persons who are unable to take an oathinfidels, idiots, children, pagans, &c. Would the law allow them, on account of that incapacity, to be kept in perpetual terror, or refuse to protect them at the instance of other persons?
CHEEKE, J. I concur. The objection to the warrant of commitment is fatal to it.
Order, that applicant be forthwith discharged, without writ of habeas corpus.
MCDONALD and wife against WATSON and wife.
On motion THIS
by way of appeal for the rehearing of an
HIS was a suit instituted in the Ecclesiastical Jurisdictiou, propounding the will of Thomas Lindsay, of Branxton, and claiming that probate thereof should case, in which be granted to the plaintiff, Marion McDonald (formerly the Primary and at the date of the will Marion Lindsay), the sole Judge, coneurring in the ver- executrix named therein. dict of a special jury, had pro
Thomas Lindsay died on the 10th September, 1871, nounced sen- a widower, in the sixty-fifth year of his age, leaving two
Court by a majority (Cheeke, J., and Faucett, J.) set aside the verdict and sentence, and granted a new trial, on the ground that the verdict was unsatisfactery, and (per Cheeke, J.) opposed to and against the weight of evidence (Hargrave, P.J, dissentiente). Upon the jury giving their verdict (on a Saturday), the Primary Judge reserved his sentence and adjudication as to costs till the following Tuesday, when the plaintiffs (who had lost the verdict) asked him further to delay his sentence for eight days, in order to give them an opportunity of moving before himself for a new trial. The Judge refused the application, and proceeded to declare his sentence and adjudication. Held (per Hargrave, J., and Cheeke, J.), that, according to the law and practice of the Court in its Ecclesiastical Jurisdiction, his Honor pursued a right course.
Per Hargrave, J. The Primary Judge sitting in the Ecclesiastical Jurisdiction is not authorised to hear motions for flew trials of issues directed by and tried before himself.
Per Faucett, J., contra. The Primary Judge has power to grant new trials in ecclesiastical cases, whether tried by a jury before himself, or by himself without a jury, and the request of the plaintiffs for the postponement of the sentence should have been complied with, and a reasonable time allowed them to apply for a new trial. Observations as to what constitutes "sounduess of mind, &c.," in relation fo the validity of wills, and 'how juries are to consider the ovidence on such issues --Per Hargrave, J., and Faucett, J.
daughters, viz., Jean the elder, who was married to the defendant Watson in 1870, and Marion, who married the plaintiff McDonald after the commencement of this suit. Three days before his death Mr. Lindsay executed, with the statutory formalities, the will propounded for probate. By it he bequeathed to Mrs. Watson £2500, to her separate use for life, without power of anticipation, remainder to such of her children as should attain their majority, or marry; remainder to his younger daughter absolutely. He also gave to Mrs. Watson, with the same limitations, an interest in lands valued at £2000, but which would not commence till sixteen years after his death. All the residue of his property, valued at between £15,000 and £20,000, he gave to his daughter Marion absolutely, and appointed her his sole executrix and trustee. The will also contaiued a direction, that the bequest of £2500 should be paid within two years after his decease, in such sums and at such times as his executrix might be able to pay it, and until so paid should bear eight per cent, interest per annum.
The defendants having entered a caveat against the application for probate, the parties thereupon filed their respective statements. And on application to Hargrave, J., the Primary Judge in Equity, sitting as Judge in
MCDONALD and wife
the Ecclesiastical Jurisdiction, an order was made that December 1, the questions of fact raised by the issues joined between the parties should be tried by a special jury of twelve, and that such issues should be
(1). Whether the document mentioned in the plaintiffs'
statement as the last will and testament of Thomas Lindsay was or was not his last will and testament. (2). Whether at the time of making and executing the said document the said Thomas Lindsay was or was not of a sound and disposing mind and understanding.
(3). Whether, if he was at that time of sound and disposing mind and understanding, he did or did not execute the document under undue influence-and
(4). Whether he was or was not induced to execute it by means of false representations made to him respecting the character of his son-in-law, the defendant Watson.
The trial of the case was commenced on the 1st of February, and lasted several days. Sixty-nine witnesses were examined; and a large number of exhibits, consisting chiefly of correspondence between Mr. Lindsay and Mr. Watson, and between Mrs. Watson and Mrs. McDonald, were put in evidence. It was almost exclusively to the second question that the evidence was directed; and as it is referred to and eommented on very fully, in the judgments of their Honors, Mr. Justice Hargrave (post, p. 16) and Mr. Justice Faucett (post, p. 81), it is ouly necessary bere to state, that Mrs. Watson's marriage took place with the full consent and approval of her parents; that Mr. Lindsay had, till shortly after the death of his wife in April, 1871, always acted as a shrewd man of business, and had often expressed, both before and after Mrs. Watson's marriage, his intention of leaving his property to his daughters in equal shares regarding them both with equal affection, as they had been equally dutiful and affectionate to him. The younger daughter resided with her father until his death; Mrs. Watson lived with her husband in Sydney; but a friendly correspondence was regularly kept up between the sisters, and between Mr. Lindsay and his son-in-law. Some contradictory evidence was given as to the feelings of Mr. Lindsay, particularly near the close of his life, towards Mr. Watson. After his wife's death Mr. Lindsay's health failed, and he contracted to some extent intemperate habits; and instances were deposed to of his having shewn himself incapable of transacting business. Whether his mind was so far affected as to be considered unsound at the time of executing this will, which disposed of his property so unequally, contrary to his often expressed intention, was the question which the jury had to determine. The Primary Judge, in charging the jury, did not read over to them the plaintiffs' evidence in cætenso.
WATSON and wife.
He directed them, first, to assume all the plaintiffs' evidence to be substantially true, and as establishing McDONALD prima facie the general sanity and capacity of the testator; and then to consider whether they could believe the truthfulness of any of the defendants' witnesses, and, if so, whether the evidence given by them overbalanced that adduced by the plaintiffs (see post, p. 24). The jury, on the last day of the trial, returned a verdict for February 10. the defendants by a majority of ten to two; and his Honor reserved his "sentence and adjudication as to costs" until February 13, when he refused an application of plaintiffs' counsel, further to delay the sentence, in order to give them an opportunity of moving before himself for a new trial, and proceeded to declare his concurrence in the verdict, pronounced against the will, and adjudicated that the costs of both parties, as between solicitor and client, should be paid out of the
16, 18, 19.
Darley (Owen and Davis with him), for the plaintiffs, March 13, 14, now moved the full Court (a) by way of appeal for a rehearing of the case, and Hargrave, J., read his notes of the evidence and charge. Several grounds were stated for the appeal, but only two were ultimately relied on, viz. :-First, that the Judge ought to have reserved his sentence on the plaintiffs' application, in order to allow them an opportunity of moving before him for a new trial; and, secondly, that the verdict was against the weight of evidence. As to the first point, after referring to the Acts, 4 Vic., No. 22, s. 28 (b), 5 Vic., Nọ. 9, s. 42 (c),
Before Hargrave, J., Cheeke, J., and Faucett, J.
Enacting "that it shall be lawful for the Court in every case, in which the ends of justice shall appear to them to render that mode of enquiry expedient, whether at Common Law or in its Equitable or Ecclesiastical Jurisdiction, to direct the trial by a jury of any feigned issue or issues, and for that purpose from time to time to make all such orders, &c., and to cause all such proceedings to be had and taken from time to time as the said Court shall think necessary; and upon the finding of such jury (unless a new trial shall for any sufficient reason in that behalf be ordered), to give such decision and make such decree, or pronounce such judgment in the cause or matter pending before them, as justice shall seem to such Court to require."
(c) Enacting "that in all cases where the Supreme Court, or any Judge thereof now are, or is, or hereafter, shall be authorised to direct the trial of any feigned issue, or the said Court shall in any action grant a new trial, it shall be lawful for the said Court or Judge to impose conditions," &c., on the parties