ejusdem generis, and not light or triffling.(Neeld v. Neeld. Hagg. R. iv. p. 266.) XV.-IN CAUSES APPEALED. 1. Where the Judge â quo must proceed— (p. 106.) A suit for cruelty and adultery, brought by the wife, was appealed from the Consistory Court of London to the Arches, and, in 1828, was there alleged to be agreed, and the husband dismissed; but the inhibition to the Consistory was not relaxed. In 1831, a suit for cruelty and adultery was again brought by the wife in the Consistory; the husband appeared under protest; the judge having directed the wife's libel (which referred to and prayed leave to invoke the proceedings in the former suit, and also pleaded new facts,) to be brought in, overruled the protest; but, on the ground that the inhibition was still in force, did not assign the husband to appear absolutely, nor did it dismiss him, nor admit, nor reject the libel. The wife appealed: that appeal was dismissed for irregularity, and the cause remitted the judge below, as still inhibited, refused to proceed: the wife again appealed; and the Court of Arches held, that the agreement, and consequent dismissal of the husband, put an end to the former suit, and consequently to the inhibition, and that the judge of the Consistory Court was bound to proceed in the cause.-(Smyth v. Smyth Hagg. R. iv. p. 509.) 2. Et contra. The libel in a suit for cruelty and adultery, disclosing the existence of a former suit between the same parties, partly on the same facts and such former suit, was appealed, and in the superior Court dismissed, by consent, before sentence, held that the inferior Court cannot hear on the admissibility of such libel, the inhibition in the former suit not having been expressly relaxed. (Smyth v. Smyth. Hagg. R. iv. p. 516.) Where Governing Disposition of Property. and, consequently, that the law of Spain was -(p. 112.) The deceased (the son of a British subject, who resided for several years up to his death in Ireland, and had purchased property there,) though occasionally claiming the privileges of a British subject, and visiting England, but who was born, educated, established as a merchant, and who died in Spain, held to be clearly domiciled in Spain, to govern the disposition of his property.(Moore v. Darell and Budd. Hagg. R. iv. p. 346.) On what depending. Cases of domicil do not depend on residence alone, but on a consideration of all the circumstances of the case.-(Moore v. Darell and Budd. Hagg. R. iv. p. 352.) EVIDENCE. X.-MISCELLANEOUS HEADs of evidence. Of Husband exhibited by Wife. Letters of the husband, exhibited by the wife, are evidence against him; and explanations therein contained of his conduct, with respect to the matter charged, are to be taken into the Court's consideration; but other statements therein are not evidence for the husband, at least in debating the plea. (Neeld v. Neeld. Hagg. R. iv. p. 267.) 10. Record of Judgments-(p. 118.) Upon an application for a prohibition, propter defectum triationis, the Court of Arches had been enjoined from proceeding as to a custom, until an issue was tried-the record of the judgment, setting forth a verdict finding a custom for the parishioners to repair the chancel, is conclusive evidence, in the Ecclesiastical Court, of the existence and validity of the custom.-(The Bishop of Ely v. Gibbons and Goody. Hagg. R. iv. p. 156.) MONUMENTS. The lay rector is not entitled, as of right, to make a vault or affix tablets in the chancel, without leave of the ordinary-nor is he entitled to a faculty for such purposes, without laying before the ordinary such particulars as will afford the vicar and parishioners an opportunity of judging of it, and satisfying the ordinary that such vaults or tablets will not interrupt the parishioners in the use and enjoyment of the chancel: nor has the vicar an absolute veto, though he may shew cause against the grant of a faculty. Semble, that the consent of the lay rector must precede the leave of the ordinary, for the construction of a vault, or the erection of tablets in the chancel.-(Rich v. Bushnell. Hagg. R. iv. p. 165.) Quare, whether the consent of the vicar is Execution of. What will be insufficient. POWERS. The testatrix possessing a power of appointment, duly, by will, executed that power. By a later will, duly executed and attested according to the power, but without any recital of, or reference to, the power, she disposed of a real estate over which the power extended-left all the rest, residue, and remainder of her estates and effects, real and personal, plate, &c., or other property, whether in possession, reversion, or expectancy, or held in trust for her-revoked and made void all and every other will and wills by her at any time theretofore made, and declared this only to be her last will and testament-the Court, holding that the intention to revoke the former will was, taking all the contents of the latter will together, clear, refused probate of the two papers, as together containing her will, and granted probate of the latter paper alone. Semble, that the residuary clause in the later will was not a due execution of the power as to the personalty, and that the revocatory clause would not have revoked the prior will, unless the intention had been clear.(Hughes v. Turner. Hagg. R. iv. p. 52.) II. GRANT of. PROBATE. 7. In respect of Papers unattested. (a) Where granted-(p. 172.) Probate, in common form, of an unattested will, granted on the affidavit of one person only to handwriting, and the consent of the sole person in distribution.-(In the goods of Mary Keeton. Hagg. R. iv. p. 209.) 11. In respect of Letters testamentary in their purport-(p. 173.) An unattested letter, purporting to dispose of realty and personalty, and conditional on deceased's dying during a visit to Ireland, not admitted to probate in common form, (the parties prejudiced being minors)-the deceased having returned from Ireland, and having subsequently executed a will, attested by three witnesses, disposing of land, (purporting to be bequeathed in the letter) appointing executrix and guardian of his children, but not referring to the letter, nor to his personalty.-(In the goods of the Rev. B. J. Ward. Hagg. R. iv. p. 179.) 13. Of two Wills of same date. The testatrix possessing a power of ap pointment, duly, by will, executed that power. By a later will, duly executed and attested according to the power, but without any recital of, or reference to, the power, she disposed of a real estate over which the power extended-left all the rest, residue, and remainder of her estates and effects, real and personal, plate, &c., or other property, whether in possession, reversion, or expectancy, or held in trust for her-revoked and made void all and every other will and wills by her at any time theretofore made, and declared this only to be her last will and testament-the Court, holding that the intention to revoke the former will was, taking all the contents of the latter will together, clear, refused probate of the two papers, as together containing her will, and granted probate of the latter paper alone. Semble, that the residuary clause in the later will was not a due execution of the power as to the personalty, and that the revocatory clause would not have revoked the prior will, unless the intention had been clear.— (Hughes v. Turner. Hagg. R. iv. p. 52.) 4. Inequality of (p. 180.) (a) Inability of Ecclesiastical Court to set aside, by reason of. The Court has no jurisdiction, upon an original proceeding by an individual rate payer, to set aside a rate on the ground of inequality in the assessment-the remedy for the party, unequally assessed, is to enter a caveat against the confirmation, or to refuse payment of the rate.-(Watney v. Lambert and Simpson. Hagg. R. iv. p. 84.) (b) Particularity of the issue, in respect of. Objections to church-rates, on the ground of inequality, tending to occasion great inconvenience and expense to parishes, are stricti juris, and the pleas must be confined to the points originally put in issue. A rate payer, in his defensive allegation, objecting to his assessment, on the sole ground of being overrated, as compared with two others, shall not, in additional articles, introduce, as a fresh objection, that a railway passing through the parish has not been assessed. Quære, if the question whether such railway was liable to be rated to church-rate, could have been originally raised as a collateral incidental point, by a party objecting to payment of his own rate, on the ground of being overrated.-(Lambert and Simpson v. Weall. Hagg. R. iv. p. 91.) (c) Evidence of. A poor-rate, assessed on the same principle over the whole parish, though affording a fairer criterion than king's taxes, is but adminicular evidence of the equality or inequality of a church-rate. A valuation, by competent judges, and founded on the rent a tenant would pay for the premises, is the proper test; therefore, an allegation, pleading reasons why the poor-rate did not afford a fair criterion, rejected, as immaterial-an explanation of such matter in the answers being sufficient. (Lambert and Simpson v. Weall. Hagg. R. iv. p. 96.) (d) Objector, where condemned in Costs, in respect of. The Court pronounced for a church-rate, and condemned in costs a rate payer, who, as overseer of the poor, had collected rates, and had long acquiesced in the payment of church-rates, made on the same valuation, as the church-rate objected to, on the ground of inequality, such inequality not being established in evidence.-(Lambert and Simpson v. Weall. Hagg. R. iv. p. 102.) I.-SUITS FOR. (e) Presumptions in respect of. The presumption of law is, that a churchrate made at a vestry duly holden, and the same as in former years, is fairly assessed, and the burthen of proof is in the party objecting to the payment on the score of inequality; and the presumption and burthen are both increased, when the rate is founded on a valuation long acted upon, both for church and poor-rate.-(Lambert and Simpson v. Weall. Hagg. R. iv. p. 102.) 5. Liability for. (a) Who is liable. The Governor of Greenwich Hospital, founded in 1694, and part of an ancient royal demesne, to which an unconsecrated chapel, chaplains, and a burial ground are attached-but the officers of which occasionally bury, christen, marry, have pews at, and resort to, the parish church, and vote at the vestry-is liable to be assessed to church-rate, for premises in his beneficial occupation as governor; these premises having been never so rated before, but no valid ground of exemption being shewn to found a prescription.-(Smith and Moze v. Keats. Hagg. R. iv. p. 276.) (b) What Property is liable. Church-rate has existed in this country from time immemorial,-houses and lands, and all property of that description, are, primâ facie, liable to a church-rate, unless there be some legal exemption.--(Smith and Moze v. Keats. Hagg. R. iv. p. 278, 9.) IV. POWER OF ECCLESIASTICAL COURTS. Estimates for the repairs of a church, and the lawful and necessary expenses of churchwardens, amounting to £111, laid before a vestry, and a rate to that amount proposed, but a rate of £50 17s. only granted-whereupon, two churchwardens exhibited articles against two other churchwardens and ten parishioners, for refusing to make a sufficient rate: a decree, rejecting the articles, affirmed with costs. Semble, that the Ecclesiastical Court cannot decide the quantum of a rate-and, therefore, that the parishioners, who do not contumaciously refuse to make a rate, but grant one not manifestly collusive, are not liable to be articled for refusing a sufficient rate.-(O. I. P., by Greenwood and Spedding v. Greaves and others. Hagg. R. iv. p. 77.) RIGHTS (CONJUGAL.) brought by the wife, the husband pleaded her adultery, proved gross impropriety of In a suit for restitution of conjugal rights, conduct, absence from home, (unaccounted (a) Where sustained—(p. 183.) |