BARRY II. BUTLIN cl8381 11 IOORE. 480

a fresh petition to IXer Xajesty in Council, and on the: 5th of December 1839, moved

by counsel, for a day to be fired for hetwing the matter of his original petition, for

an extension of the then existing Letters Patent.

Their Lordships were of opinion, that the public were entitled to be apprised o f

the app~ication intended to be made under the recent Statute to enable parties to

enter caveats and lodge objections, and that as no new rules had been framed for

proceeding under the recent Act, those made under the former statute must be ob-

served, and directed the petitioner to advertise his intention to apply, as required

by the rules of practice under the former Act.

The Petitioner having complied with this direction (May 20, 1840 *), and the

existing practice, and no caveat being entered, the petition now came on for hearing

before the Judicial Committee.

Sir W. Follett, Q.C., and Mr. Godson, for the Petitioner-Produced witnesses to

prove the allegations of merits [480] contained in the Petition, and that the Peti-

tioner had not received adequate remI~nerat~on for his outlay, and the ingenuity

of his invention ; and

Lord Lyndhurst-On the part of their Lordships, espressed the opinion of the

Committee, that the subject-matter of the Patent was an ingenious invention, and

that as the reii~ur~eration appeared, from the evidence produced, only to have been

received for the last three years, and during that period was not of an extraordi-

nary kind, it could hardly be said, that the inventor had had sufficiently the benefit

of his invention ; they considered, therefore, that they ought to grant an extension

of the term for seven years.

[Mews' Dig. tit. PATENT F, 2, a. The Extension of letters patent for inventions is

now regulated by s. 25 of the Patents Act, 1883 (46 and 37 Vict., e. 57), and by

rules scheduled 10 on 0. in C. of 26 Nov. 1897 (Stat. R. and O.), 1899, p. 1837.1

ON APPEAL FROM THE P ~ E ~ O ~ A q ~ I V ~ COURT OF ANT ER^^^^.

P ~ N ~ O C K BARRY B A R R Y , - ~ ~ ~ e Z ~ ~ ~ ; JAMES B ~ T L I N , - ~ e s ~ ~ ~ ~ e ~ ~ t

[December 4, 5, 6, 7, and 8, 18381.

The onw of proving a Will being on the party propounding it, i s in general

discharged by proof of capacity, and the fact of execution; from which the

knowledge of and assent to its contents by the Testator will be assumed.

The fact of a p&rty preparing a Will, with a Legacy to himself, is at most otily

one of suspicion, of niore or less weight according to the circumstances, de-

manding, however, the vigilant care of the Court in investigating the case

before granting probate: and though evidettce of the instructions given by

the deceased, and the reading over of the instrument are the most satis-

factory proofs of the Testator's knowledge of the contents, they are nsf, Ihe

only description of proof by which the cognizance of the contents of tliri Kill

may be brought home to the deceased, eve11 in a case of doubtful capacity.

A Will prepared by the deceased's solicitor, under which he took a c o n ~ i d e r a b ~ ~

benefit, the only son of the deceased being excluded ; the deceased being of

weak, though of testable capacity, under tlie circumbtances vronounced for,

affirming the sentence of the Prerogative Court, with costs.

A charge in the nature of conspiracy and fraud being introduced in an allega

tion, by a party opposing probate ; for a collateral purpose not material t o

the suit, the Judicial ~ o x ~ n i t t e e a ~ r m i n g the judgment of the P r e r ~ ~ a t i v ~

* Present : Lord Lyndhurst, Mr. Justice Bosanquet, Sir Herbart Jenner, and tItc

t Present: Lord Brougham, Mr. Baron Parke, Mr. Justice Bosanquet, and tlic

_- _ ~ _ _ _ _ ~

Right Hon. Dr. Lushing~n.

Chief Judge of the Court of Bankruptcy [Sir Thomas Erskine].

P.C. I. 1089 35

11 OR^^ 481 BARRY "U. BUTLEN [1838]

Court condemiied the party with costs, from the tinre of giving in his allega-

tion, toget~~er with the costs af Appeal,

Fendock Barry, of Tol~erton Hall, in the County of ~ o t t i n g h a ~ , the Testator,

r e spec t~n~ the ~ r a ~ ~ d ~ t y of whose Will the presen~ Appal arose, died on the 13th

Ej4811 of March 1833, at the age of seventy-six years, a widower, Iewing behind him

the A~pe l~an t , his son and heir, mid only next of kin.

On the 24th of September 1827, the deceased executed his Will in dup~ica~e, a t

the house of Percy, his attorney, in the presence of two witnesses, whemby he ap-

pointed the ~espo~ide~it,, Samw Butlin, sole Executor and ~ s i d u a r y Legatee, and

amongst other Legacies be~ueathed to Percy 83000, to Butlin 82000, and to White-

head, his butler, E3000.

The v a ~ i d ~ ~ ~ of this Will was d~sputed by the ~ppel lant , on the g r o ~ n d that the

~ ~ e c u ~ ~ o n was pro cur^ by the fraud and consp~racy of Percy, ~ u t ~ ~ n , and White-

head, a t a time whcn the deceased was of unsou~~d mind, and wholly ~ n c a ~ a b ~ e of

making or executing a Will, or of doing any act r e q u ~ r i ~ ~ t h o u g ~ t ~ j u ~ g ~ e n t , and

reflection.

The ~ ~ p o ~ d e i ~ t propounded the above Will for F r ~ b a ~ in the ~ r e r o ~ ~ t i ~ e

Court of Canterbury.

A caveat ~ ~ a v i n g been entered by the ~ p p e l l a n ~ , a ~ l e ~ a t ~ o n s a d exhib~t$ were

~ ? r o u ~ h t in by both parties, and w~tnesses e x a ~ i n e d in support thereof.

14823 The facts and circ~mstances pleaded, and ~ a t e r ~ a ~ to the issue, are stated

very fully in the judgment.

After various int~r~oeutory p r o c ~ d ~ n ~ s , the Judge of the PrerogFtive Court,

Sir Werbert Jenner, on the 5th of Septe~~ber 1831 (reported 1 Curters, Ecc. Rep.

614), pronounced for the force and validity of the Will.

The Appe~ant ap~ealed from this sentence to the Queen in Council,

Mr. Cresswe~l, Q.G., and Dr. A d d a ~ , for the Appellant.

The Queen's Advocate (Sir John Dodson~, and ililr, Thesige~, Q.C., for the Be-

~ p o ~ ~ d e n t .

The ~ o ~ ~ o w i n g a u t ~ ~ o r ~ t j e s w re ~,e~erred to: ~~~~~ v. Btkiize (3 Xyl. and K.

113); Pmtt v, Burker (4 Bum, 507); TU^ v. ~~~€~ (1 Hagg. ECG. Rep. 384,

391) ; Gibsvrc v. Jeyes (6 Ves. 266).

Mr, Baron Parae (Dec. 24),-The rules of law accoxd~ng to which cases of this

nature are to be decided, do not admit of any d~spute, so far as they are ~ ~ e s s & ~

to the d e t e r ~ ~ n a t i o n of the present Appeal: and they have been acquiesced in on

both sides. These rules are two ; the first that the o m s ~~b~~~ lies in every case

upon the party p rop~und~ng a Will ; and he must satisfy the conscience of the Court

that the ~ n s t r u ~ e n t so propounded is the last Will of a, free and capable Testator,

The second is, that if a party writes or prepares a Will, under which he takes a

benefit,, that is rt c i r c u ~ ~ t a ~ c e that ought genera~~y to excite the susp~cion

the Court, and calls upon i t to be vjg~lant and jealous in e x a ~ i ~ i n g the evide~ce in

support of the i ~ ~ s ~ r u ~ e n t , in favour of which it ought not to p ~ ~ i o u n c e unless the

susp~cion i s removed, and it i s ~udicially sa t~~f ied that the paper propo~i~ded does

express the true Will of the deceased,

The

former is und~sputed. The tatter is laid down by Sir John N~~ho l l , in substa~ce,

in Paske v. U ~ ~ ~ € € (2 Phill. 323); ~~~~~~ v. Wyatt (1 Tfagg, Ecc. ftep. 388); and

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ s € v. ~ ~ ~ ~ e ~ - s (I Phill. 187) ; and i s stated by that very Ieasned and ex-

perienced Judge to Iiave been handed down to him. by his predecessors, and this

tribunal have s ~ ~ c t i o n e d and acted upon it, in a recent case; that of Baker. v. Batt

(ante [2 Moo. P.C.] 317).

Their hrdships are fully sensible of the wisdom. of this rule, and the ~ ~ p o r t a n c e

of its pr~ct,~cal ~p l~ca t ion on all occasions. At the same time their ~ordships

think it fit to observe, e s p e c ~ a ~ ~ y as there has been some discussion upon these

points, t ~ ~ a r d s the dose of this i n q u ~ ~ , that some of the expressions reported to

have been used by Sir John Nicholl in laying down this doctrine, appear to them to

he somewhat e~uivocal, and capable of ~ e a d ~ n ~ into error in the ~ n v e s ~ , j ~ a t ~ o n and

decision of questions of this nature. It i s said that where the party ~ ~ e ~ ~ e ~ ~ ~ ~ pre-

1090

These pr~nciples, to the extent that I have stated, are well estab~ished.

BARRU ‘U. BUTLIN f18381 I1 XOORE, *

pares the Will, “ the presumption and onus ~~0~~~~~~ is against the instrument^ and

the proof must go not merely to the act of signing, but to the knowledge of the

contents of the paper ” (Pnske v. ~ ~ ~ ~ t t , 2 Phill. 323) : and that. ‘‘ where the capacity

i s doubtful, there must be proof of ~ ~ ~ ? , ~ c € i ~ ~ OF F e ~ ~ ~ ~ ~ over ’’ ( ~ ~ Z ~ ~ ~ ~ ~ s t v.

Fkiekers, 1 Phill, 193). If, by these expressions, tlte learned [484] Judge meant

merely to say, that there are cases of Wills prepared by a Legatee, so pregnarit with

susp~cion, that they ought to be pro~~ct.~nced against in the absence of evidence in

support of them, and that extending t,o clear proof of the actual knowledge of the

contents, by the supposed Testator, and that instructions proceeding from him, ur

the reading over the instrument by or to him, are the most satisfactory evidence

of sucb knowledge; we fully coIicur in the proposition so understood; in all pro-

b a b i ~ ~ t y the learned Judge intended no more than this. But if the words uscd are

to be construed stvietly; if it is intended to be stated as a rule of law, that in every

case in which the party preparing a Will derives a benefit under it, the olzus pro-

bandi is shifted, and that not only a certain measure but a particular species of

proof i s thereupon required from the party propounding the W-ill,--we feel bound

to say that me assume &e doctrine to be incorrect.

The strict meaning of the term 07~zcs p r o b d i i s thig that if no evidence is given

by the party on whom the burthen is cast, the issue must be found against him.

In all cases the O?WS is imposed on the party propounding a Will, it is in general

d ~ s c ~ a r g e d by proof of capacity, and the fact of execution, from which the know-

ledge of and assent to the contents of the instrument are assumed, and it cannot

be that the simple fact of the party who prepared the Will being himself a Legatee,

is in every case, and under all circumstances, to oretite a contrary presu~~ption, and

to call upon the Court to pronounce against the Will, unless ldditional evidence

is produced to prove the knowIedge of its contents by the deceased. A single

instance, of not unfrequent occurrence, will test the truth of this p r ~ [ 4 ~ ] ~ p o s ~ t i o n .

A man of acknowledged competence and habits of business, worth ~ l O O , O O ~ , leaves

the bulk of his property to his family, and a Legacy of 350 to his con~dential

attorney, who prepared the Will: would this fact throw the burthen of proof of

actual cogn~zance by the Testator, of the contents ct.f the Will, on the party pro-

pounding it, so that i f such proof were not supplied, the Will would be pronounced

against a All that can be truly said is, that

if a person, whether attorney or not, prepares a Ryill with a Legacy to himself, it is,

at most, a suspicious c~rcuinstance, of more or less weight, according to the facts of

each part~cular case; in some of no weight a t all, as in the case suggested, varying

according to circumstances; for instance, the guctlzturn of the Legacy, and the pro-

portion i t bears to the property disposed of, and numerous other contingencies :

but in no case amounting to more than a circumsta~ce of suspicion, demand in^

the vigilant care and circums~ect~on of the Court in investigati~g the case, and

calling upon it not to grant probate wi t~ou t full and entire satisfact~on that the

instrument did express the real intentions of the deceased,

Nor can it be necessary, that ilz a Z E swk cuses, even if the ~estator’s c a p a c ~ t ~

i s doubtful, the precise species of evidence of tile deceased’s knowledge of the Will

is to be in the shape of instructions for, or reading over the ~ n s t r ~ i ~ ~ e n t . They

form, no doubt, the most sa t i s fac to~ , but they are not the oidy s a t ~ s f a c ~ r y de.

scription of proof, by which the c o ~ n i ~ ~ ~ ~ c c of the contents of the Will, may be brought

home to the deceased. The Court would naturally look for such evidence; in some

cases it might be impossible to [@6] establish a Will without it, but it has no right

in every case to require it.

I have said this much upon the rules of law applicable to this case, with the con-

currence of all their Lordships who heard the argument,, not particularly with a

view to the decision of this case, but in order to prevent any misconception upon a

subject of so great practical importance; a t the same time their Lordships wish it

to be d~stinctly u n ~ e r s ~ ~ o d , that entirely acqu~escing in the proprie~y of the rule,

so qualified and explained, they should be extremely sorry if anything which has

fallen from them should have the effect of i ~ p e d ~ n g its full operation.

Tlie case which their Lordships have now to decide has been argued a t the bar

wi th much industry and ability on both sides ; and all their Lords~~ips have besides

had an ample opportuni t~~ of pe r i~s~ng and c o n s ~ d e r ~ ~ g with due care and a~tent io?~

1091

The answer is obvious, it would not.

II xoom, 487 BARBP 'U. BUTLEN [I8381

the i~iimense mass of evidence, more or less mater~al, which was adduced in the

Court beIow-as the result of that. consideration has been to satisfy our minds, that

the Decree of the Judge of the Prerogative Court was right, it i s not necessary $0

go into the same minute statements, o r con~inent upon the evidence in the cause in

detail, which we should have thought it our duty to have done i f we had happened to

mrive at a different conclusion from that of the learned Judge. ~ ~ d o p t i n g the

~ r i ~ c i p ~ e s abov~ laid down, and a d ~ ~ t t e d on both sides, we are all quite satisfied

that the deceased was compet,ent, .and that the paper propounded by the Respo~~dent

is proved to be his true last Will, and to express his real ~ntentioi~s.

A tolerably just estimate may be formed of the [487] character and mental

powers of Mr. Barry, the deceased, from the parol evidence on both Bides, after

making some allowance for the bias under which some of the witnesses speak, a ~ d

the writtan docui~Ien~s, whicli are proved by the hand-~rritii~g of the deceased.

Froni these sources it may be collected, that he WHS a person of slender capac~ty,

of a retired dispwition, ii~do~eiit habits, and addicted to drinking, s o r ~ e ~ ~ i a ~

singular in h i s appearaiice, frivolous, and even childish in his a~nusen3ents and

occupations. On the other hand i t i s clear that be r a s not insane, and al thoug~~

the evidence embraces a period of more than fifty years, and an accoui~t of most of

the transactions of his life, there i s no satis€ac~ory evidence of a single act, denoting

that he was l a b o u r ~ n ~ under delusions, or ~ndicating such a degree of folly ps to

show that he was unfit to be trusted with the managemei~t of his own concerns.

Though certainly not a man of business, tie w&s capable of t r a n s a c t ~ n ~ the ordinary

affairs of life, and the letters produced under his hand, and the parol evidence of

the annual settlement of his accounts, and attendsnce at the bankers, distinctly

show, that he paid 'considerable attention to his pecuniary concerns, and was coni-

petent to the conduct of his own affairs. It i s i i ~ t indeed disputed on one side

but that he was of testable capacity, nor on the other, that he waa a person of weak

mind: BS to the extent of that weakness there i s a difference, but a d n i i t t i i ~ ~ its

existence, even to the degree represented on the part of the Appellant, the only con-

sequence will be, that i t adds to the suspicio~ which unquestionably belongs to the

circunistance of the attorney who prepared the Will, tnking no less than a fourth of

the Estate, and the Legatees taking the whole to the exclusion of his own f n n ~ ~ ~ y ,

[4@$] and calls upon us to watch the proof of the Will itself with increased jealousy

and suspicion.

The question is, whether these grounds of suspicion have been s a ~ i s ~ a c t o r i ~ ~

removed, and the instrument proved to he the real Will of the Testator hiniself.

Thai he should pass over his own relthons i s rendered highly probable under the

unhappy circumstances of this case. If, all the other facts of the case being as they

were, he had lived on terms of affectionate intercourse with his son ; had received

him occas~onally as an ~nmate of the house, or had habi tua~~y correspo~ded with

him, and had always expressed for him parental regard, the case would have been

one of niuch greater susp~cion, and more d ~ ~ c u l t to decide than it i s ; but unhappily,

there i s proof of estrangement from his only son, so clear and distinct as to admit

of 130 doubt, and upon ~ i . o u ~ i ~ s which, whether the charges abainst the son were true

or false, cannot assuredly be deemed irrational. Though Hr. Barry Barry had been

guilty of violent conduet which is deposed to by some of the ~ ~ t n e s s e s , and that

operating on the timidity of his father, might have sunietimes excited his fears ;

i t i s clear from the correspondence, th& h i s father was on a f r ~ e n d l ~ foot in^ with

him, and professed much regard for him, even after that gentleman had absconded

to avoid being taken on a bench w a r r ~ n t , founded upon the eharge against him ;

but after the time that he declined to take his trial at the assizes, in March 1814,

and thereby afforded a strong ground for believing that the charge was true, all

intercourse ceased, the deceased never wrote to, or saw his son a f te rwardshe held

no con~mu~iicat~on whatever with him, and in December 1819, when in the absence

of ~ ~ ~ i t e h e a d and Butlin, under whom control the deceased i s su~~posed ~~9~ to

have been, Nr. Barry Barry went to his father's house, his father of his own acGord

excluded him from his presence, and i t appears to be clear that from the month of

Harc~I 1811, he ceased to speak of him except as an unfortunate and unhappy man.

In this state of complete alienation from his son, it is by no nieanx unn~ tu ra l to

1093

suppose that he would not make him the object of his bounty, but that he would seek

elsewhere for those on whom he would bestow it.

After his daughter’s death in 1821, he had no relations except the Neales: from

them also i t i s qua1Iy clear that his regards, i f he ever enterta~ned any, were es-

tranged. With ~~enaock,who died in Septeniber 1816, he had unfort~~iately quarrelled,

and he kept up no intercourse with the other ikiexnbers of that fa~~iiIy : under these

circumstances i t is highly probable that he would uiake a Will in order to prevent his

son enjoying his property, and that as none of his relations were on terms of friend-

ship with him, he would bestow his bbunty on those persons who were; and none

seem to have been in habits of intercourse with him xilore than Mr. Percy altd Mr.

Butlin, and i t is by no means improbable that he would give a part to an old

servant in whom he had reposed great coniidence and trust. It i s true that this

con~dence was in some respect misplaced, and ~ ~ h i t e l ~ e a d seems to have taken

liberties in his master’s house which he could hardly have sanctioned ; but still its

does not appear that his master knew it, and he was entrusted to the last with the

management of his domestic affairs.

With these probabilities then in f ~ v o u r of the Will propounded, let us look a t

the evidence of the fuetztm, which though not so strong as direct proof of written

[~9~] inst~ructions, to the full extent of the Will, or direct proof that i t was read

over, i s still of a very satisfactory nature, and, with the other circu~stances to which

I have adverted, leaves the mind permanently satisfied that the instrument expresses

his real vishes.

In the first place it i s a fact beyond dispute that Mr. Percy, who prepared the

Will, at all events meant that it should be fairly and openly esecuted in the presence

of r e spec t~~ le witnesses. Mr. Sniith was c e r ~ a i n ~ ~ applied to by him for that

purpose, and could not attend, Dr. Davidson and Mr. Chapman, all answering that

descrjpt~on, did attend. This ci~cunistance i s strong to prove the absence of clandes-

tinity and fraud,

There were instruct~ons for the burial and funeral, in the hand~r i t i ng of the

Testator. These prove no more than that his mind was directed on the subject of

arrangement after his death; but they do not carry the case further, they do not

lead necessarily to the inference that he had a Will in view ; but Exhibit C. is proved

by a witness named Gough (and there i s no fair ground to disbelieve his evidence)

to have been transmitted to the deceased. It incorporated the Memorandu~ D.,

and was a draft of the Will, and that Draft, in a page of i t which contains tlte

legacies to Whitehead and his wife, is twice altered in the hand-writing of the

Testator ; which distinctly proves that his mind was employed on the subject, and

affords reasonahltt evidence that he was cognisable of its contents. In addition i o

this, Gough proves that i t was Mr. Barry who sent him to desire Mr. Chapman “ t o

come and see him execute his Will.’’ We also sent him with the same message to

Dr. Marsden, but that [&lI g e n t ~ e ~ a n was not at home; Dr. D a ~ ~ d s o x ~ , who did

attest it, expressly swears that Yr. Barry declared it to be his last Will and Testa-

ment, and requested him and Yr. C ~ a p ~ a n to witness it; and he adds his belief

tphat Mr. Barry was of perfectly sound mind, memory, and understanding, and

capable of doing any act which required thought, j u d g ~ e ~ t , and reflection. It is

suggested that there was some secrecy in the preparation of the Will, in Mr. Percy’s

oflice, for ~ightingale, who was an old cIerk, did not know it ; but we think that this

does not raise any inference of this kind, as i t may naturally be accounted for by

the practice of entrusting different matters of business to diffe~ent clerks, and if

a fraud had been intended and cancooted between three Legatees i t i s rather mort!

likely that Nightingale, who was an associate of Whitehead, should be employed,

than Gough, who was not.

We think, therefore, on the whole, that tnhe evidence of the ~~~~~~ coupled

with the strong ~rob&b~li t ies of tbe case, is sufficien~ to remove the suspicions which

naturally belong to the case of all Wills prepared by persons in their own favour,

especially when made by those of weak capac~ty. The undue infiuence, and the

~ ~ p o r t u n ~ t y which, if they are to defeat a Will, must be of the nature of fraud or

duress, exercised on a, mind in a state of debility, are insinuated but not proved.

W h i ~ h e a d ’ ~ authority and power over his master is, no doubt, sufficient~y

established ; but that such authority and power were in any way exercised to procure

1093

*

11 XOORE, 492 MELLIN U. MELLIN [1838]

this Will to be made is only conjecture; and there i s nothing like proof of authority

or control of any kind on the part of Butlin or Percy.

[4921 We are, therefore, of opinion that the Will ia established, and ought to be

admitted to proof. We have entertained some doubt as to the propriety of that part

of the decree which condemns the Appellant in the costs s u ~ e q u e n t o the giving in

his allegation dated the 7th of November 1833. The case is one in which the

Appellant was well justified in calling for the proof of the Will, and watching and

sifting that proof, and he certainly ought not to have had to pay the costs of that

inquiry. But as the case made by his allegation was a charge in the nature of

conspiracy and fraud, and that charge has failed, and as a part of it, and that

causing no small addition to the expense, is introduced for a collateral purpose,

not material to the decision of this suit, we do not think we ought to vary the Decree

of the Court below in respect to the costs, and the appeal must be consequently

dismissed, and we think with cmts.

See ~ u r ~ ~ q ~ g v. ~ o v e l u ~ , 2 Curteis, 225, 227-8.

[Mews’ Dig. tit. WILL, I. TESTANESTABY CAPACITY, h. U d a e Inf lumce uad P r o d ,

also VIII. d. 3 Orms of Proof, E. Costs. Followed in

~ ~ ~ t c ~ ~ e ~ ~ v. ~ ~ o r ~ a s , 1847 12 Jur. 967 ; G ~ r - d ~ o z ~ e v. BlncLEturn, 1866, L.R.

1 P. and D. 116; ~ ~ ~ r e Z Z v. ~ u ~ t o n (1894), P. 151 ; ~ u ~ r e l l ~ v. C O ? . ~ ~ ~ U T ~ (1899),

A.C. 567 ; and Sharna C h u r n Kuridu v. K ~ e t ~ ~ . o m o ~ ~ &si (1899), L.R. 27 Ind.

App.,XO. Cf. also Cleare v. Gleare, 1869, L.R. 1 P. and D. a t p. 657; and

Hastdow v. Stobie, 1865, 1 P. and D. 69. On point as to costs, see note t o

Armstrong v. Huddleston, 1838, 1 Moo. P.C. 492.1

S.C., below, 1 Curt. 614.

E4931 ON APPEAL F R O M ~ H E ~ O N S ~ S T O ~ Y COURT OF YORK.

JAKE MELLIN,--Appellmt; RICHARD JOHN SUTCLIFFE MELLIN,---Respo?t-

dent* [8 and 12 Dec. 18381.

The fact of a marriage celelxated in the Isle of Man, though averred in the libel

and not controverted by the answer, is not sufficieiitly proved in a suit for

divorce on account of adultery, by the production of a copy of the certificate :

but further proof was supplied by the viva voce examination of a witness

before the Judicial Committee under the 3 and 4 Will. IV., e. 41, s . 7.

This was an Appeal from a sentence of divorce or separation by reason of

adultery, in a cause promoted by Richard John Sutcliffe Mellin, of Belle Vue, in the

p r i s h of Sandal Magna, in the Diocese of York, against Jane Mellin his wife.

The sentence was proi~ounced after hearing the cause, by the O6cial Principal

of the Co~sistory Court of York, on the 14th of July 1837, alimony liaving been

assigned pending the suit.

The marriage was averred in the libel, and though not controverted, was not

admitted by the answer, and was only proved by a certificate, which purported to he

:2 copy from the register of marriages in the parish church of Malew, in the Isle of

Xan.

The certificate stated the marriage to have been by special license a t Castletown,

in the Island, on the 9th of June 1823; it was signed by the Vicar and the parties

thereto, and appeared to have been solemnized in the presence of two witnesses. This

certificate was made an exhibit, but the marriage was not proved by the examination

of either of the witnesses.

[49Q On the Appeal coming on, Dr. Phillimore took a prelimirlary objection on

the part of the Appellant to the want of sufficient proof of the marriage, and cited

~ a r ~ l ~ v. H a r n l k (heard in the Arches Court, ~ i c h a e ~ a s Term, 1836), which was

a suit originally begun in the Consistory Court of Bath and Wells, for divorce 011

* Present : Lord Brougham, Mr. Baron Parke, Rfr. Justice Bosanquet, and the

Chief Judge of the Court of Bankruptcy [Sir Thomas Erskinef.

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