ECCLESIASTICAL.

[Containing 4 Haggard's Ecclesiastical Reports, Part 1.]

ADMINISTRATION.

1. (Wife of legatee.) Administration, with the will annexed, was granted to the wife of a residuary legatee, as his attorney, under a memorandum in his hand-writing, the securities justifying. In the goods of Eliza Elderton, 210.

2. (Factor-Scotch.) Administration of a domiciled Scotsman was granted to his late agent, who had been appointed by the Court of Session to be factor loco tutoris to the infant children.-In the goods of A. Johnston,

182.

And see HUSBAND AND WIFE.

ADULTERY.

A wife brought a suit against her husband for cruelty and adultery, to which the husband recriminated. The husband's adultery was not proved; his recriminatory charge was, by a single witness, supported however by circumstances. A divorce was pronounced for.-Kenrick v. Kenrick, 114. ALIMONY.

The reduction of the husband's income, by unprofitable speculations, is no ground for a proportionate reduction of permanent alimony allotted twenty years before.-Neil v. Neil, 273.

APPEAL.

A protest against an appeal, on the ground that a party, by bringing in an exceptive allegation, subject, as alleged, to a condition that the question as to the admission should be reserved to the hearing of the cause, had perempted his right of appeal, was overruled; and on the merits, the decree of the Court, reserving the question as to the admission, was affirmed; the party having a right to appeal, if, at the hearing, the plea should be improperly rejected. Wargent v. Hollings, 346.

CHURCH-RATE.

1. (Citation.) The plaintiff's allegation must not go beyond the citation. Therefore, where the citation is limited to show cause why a rate should not be set aside by reason of its inequality, the party cannot plead the illegality of such rate in other respects.

(Jurisdiction.) The Court has no jurisdiction to set aside a rate on the

ground of inequality in the assessment; the party should refuse payment, or enter a caveat against the confirmation.-Watney v. Lambert, 184. 3. (Quantum.) Estimates for the repairs of a church, and the lawful and necessary expenses of churchwardens, amounting to 1117. laid before a vestry, and a rate to that amount proposed, but a rate of 50l. 7s. 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 on the quantum of a rate, and therefore, that parishioners, who do not contumaciously refuse to make a rate, but grant one not manifestly collusive, are not liable to be articled for refusing to make a sufficient rate.-Greenwood v. Greaves, 77. 4. (Greenwich Hospital.) 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 churchrate for premises in his beneficial occupation as governor, these premises having never been so rated before, but no valid ground of exemption being shown to found a prescription.-Smith v. Keates, 275.

5. (Presumption.) Houses and lands, and all property of that description, are prima facie liable to church-rate, unless there be some legal exemption.

S. C.

6. (Same.) The presumption of law is, that a church-rate made at a vestry duly holden, and the same as in former years, is fairly assessed, and the burden of proof is in the party objecting to payment on the score of inequality; and the presumption and burden are both increased when the rate is founded on a valuation long acted upon both for church and poorrate.-S. C.

7. (Costs.) 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 v. Weall, 102.

CRUELTY.

1. (Nature of.) In a suit by the wife for separation on account of cruelty, where the Court is convinced that the safety of the wife is in jeopardy, or may see reasonable ground to apprehend such a consequence, it will interfere to protect her; but where there is neither personal ill treatment, such as blows or bodily injury, nor threats of a description to excite in a mind of ordinary firmness fear of personal injury, the Court cannot interfere. The Court being of opinion that, assuming the facts pleaded to be true, they would not lead to a conscientious conviction that the wife might not return to cohabitation without risk to life or limb, rejected the libel.-Neeld v. Neeld, 363.

2. (Proof of minor circumstances.) When facts of violence are admitted to proof, minor circumstances may be consistently admitted, but they should be of the same character, though not to the same extent.-S. C.

3. (Inference.) Averments in a libel distinctly pleaded as facts, are to be taken as true, but those of an inferential and argumentative character, and which should be sparingly introduced, are to be taken as true only to the extent that the inferences themselves can be fairly drawn from the circumstances pleaded as facts.-S. C.

4. (Evidence.) On the question of admitting the libel, letters of the husband, exhibited by the wife, are evidence against the husband to the extent which they support the articles. Explanations therein of his conduct must be taken into consideration, but so far only as they appertain to the charges in debate.-S. C.

5. (Suit for restitution.) A suit for restitution by the wife tends strongly to show that at the time of its institution there was no reasonable grounds for apprehending personal violence, but as a wife might hazard her personal safety rather than separate, such a suit, even where legal cruelty was committed prior to its institution, would not necessarily be a bar to a sentence of separation.-S. C.

6. (Nature of.) An interdict of intercourse with her own family is not, standing alone, a substantive act of cruelty to a wife.-S. C.

DIVORCE.

In a suit for restitution of conjugal rights brought by the wife, the husband pleaded her adultery and impropriety of conduct,-absence from home for two nights, letters containing distinct admissions of guilt-and endeavours to induce individuals, by subornation of perjury, to make out that on the nights in question she slept where no suspicion could reasonably attach, being proved,-a separation was pronounced for.-Owen v. Owen, 261.

HUSBAND AND WIFE.

A husband, resident abroad, was directed, on the application of creditors, to give justifying security resident within the jurisdiction of the Court, on taking a grant of administration to his wife. In the goods of Catherine Noel, 207.

And see ADMINISTRATION, 1.

INVENTORY AND ACCOUNT.

1. (Lapse of time.) A party, after a lapse of thirty-five years, having called for an inventory and account of an insolvent estate, the executor, who appeared under protest, was dismissed with costs.-Bowles v. Harvey,

241.

2. (Same.) In a case of inventory and account brought by a legatee, a declaration (instead of an inventory) setting forth desperate debts due to, and larger debts due from the estate, but annexing no vouchers nor accounts, was held sufficient after a lapse of seventeen years. In such a suit the Court cannot decide whether debts alleged to be due from the

estate are a legal set-off: Semble, that in a cause of subtraction of legacy, the legatee, on giving security to refund, would be entitled to his legacy. -Higgins v. Higgins, 242.

PEDIGREE.

It is a rule of the Court, that, in cases of pedigree, the party has no right to see the adverse plea till he has set out his own pedigree.—Rutherford v. Maule, 238.

PLEADING.

1. (Answer.) In answers, a party is bound only to answer to facts, not to his own motives, nor to his belief of the motives of another person; and where the plea avers ignorance of the real nature of a transaction by a party to such transaction and to the suit, the other party is, in his answers to such plea, allowed to state facts inferring full knowledge thereof and acquiescence therein. A party is not bound to answer, when his answer would criminate himself, nor when it would tend to degrade him.— Swift v. Swift, 139.

2. (Allegation.) An allegation contradictory to the libel, both in law and in fact, was admitted.-Swift v. Swift, 243.

POOR RATE.

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 v. Weal, 96. POWER.

The testatrix possessing a power of appointment, duly executed it by will. 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 or 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.-Hughes v. Turner, 52.

PRACTICE.

1. (Suing as pauper.) An appellant, though suing not as a pauper in the Court below, was admitted a pauper in the Court of Delegates.-Grindall v, Grindall, 1.

2. (Inspection of depositions.) Inspection, by the registrar, of depositions taken abroad, is not allowed prior to publication.-Swift v. Swift, 144.

3. (Citation.) In a suit founded on a citation for cruelty, adultery of the husband occurring previously to the institution of the suit, but sworn by the wife to have come recently only to her knowledge, may be pleaded. (Best v. Best, 1 Ad. 411; Barnett v. Barnett, 1 Hag. E. R. 22.)—Sampson v. Sampson, 283.

4. (Verdict.) On an application for a prohibition propter defectum triationis, the Court of Arches had been enjoined from proceeding as to a custom till 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.-Bishop of Ely v. Gibbons, 156.

RECTOR.

1. (Rights of.) Though the freehold of the chancel be in the rector, lay or spiritual, and the burthen of repairing it rests with him, the use of it belongs to the parishioners, for the decent celebration of the communion and of marriage; and the ordinary, as protector of the rights, not only of existing but future inhabitants, must see that neither their present nor future accommodation be unduly prejudiced.—Rich v. Bushnell, 170. 2. (Lay rights of.) The lay rector is not, on the ground that the chancel is repaired by him, 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 as will satisfy 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 right of refusal, though he may shew cause against the granting of a faculty by stating the grounds of his objection.-Rich v. Bushnell, 164.

And see VICAR.

STAMP.

Under 55 G. 3, c. 184, schedule, pt. 1, and 5 G. 4, c. 41, schedule, pt. 2, a protocol of appeal, being a notarial act, requires a 5s. stamp; and the Court of Arches having decided on that ground against the validity of an appeal from the Consistory, the defect is not cured by a stamp affixed previous to the hearing in the Court of Delegates on an appeal from that decision. A seal is unnecessary to the validity of a notarial act.-Smyth v. Smyth, 72.

VICAR.

1. (Rights of.) Quare, whether the consent of the vicar is necessary to the construction of a vault, or to the affixing of a tablet, even in the body of the church; or whether he can in such a case claim a fee, unless by special custom. Rich v. Bushnell, 172.

2. (Same.) No fee to the vicar for consent to interments in the chancel is due of common right; it can only be by special custom to such effect, and such custom must limit the amount, and be strictly proved.-S. C. And see RECTOR.