ances, which I find it difficult to reconcile, and it is as difficult to decide which to believe, or whether to believe either.

But these difficulties do not end here: on the next day she comes, and disavows these answers. It seems that she was examined to the end of the sixteenth interrogatory on the 1st of December; -on the 2d of December she corrects her former statement:

"Respondent, since yesterday, has been reconsidering what she then deposed, in answer to the twelfth interrogatory, as to the day on which the cheque, interrogate, and produced to her, was signed. She now recollects more accurately, and deposes that the said cheque was signed in the evening of the 24th day of January last by the deceased, in the presence of respondent, Sarah King, and James King, who, at such time, drew out said cheque. Thomas Gay was also in and out of the room: she recollects, that the deceased told James King the sum for which he was to draw. She does not recollect any more that passed on such occasion respecting the said cheque, or the amount for which the same was drawn."

Now all this must be equally false; or, at least, it is decidedly in contradiction to herself, and to James King. According to her deposition in chief, finding she was not wanted as a witness at the time, she had left the room before the burning of the fair copy; and according to James King there was a long transaction of business; the deceased had some bills and Gay's account before her, and he, King, wrote the items on the back and cast up the whole amount-this must have taken a considerable time. These various representations are quite unaccountable, except by referring to Cunningham's answer on the last interrogatory:—

"She came to town from Bristol in company with the producent, James King, and Thomas Witchell: she is staying in Bury Street, St. James'. Sarah and James King are also staying in the same house, as did Witchell while he was in town: she sees the producent and James King daily, taking meals with them: she has conversed with James King and Witchell since their examinations; but not on the subject of this cause, because Mr. Toller warned her not to do so: she has not had any conversation whatever with the producent, or James King, or Witchell, respecting their evidence, or with either of them respecting what she herself had deposed on the preceding days of her examination, or respecting this cause, or the codicil in question."

James King, also, on the thirty-ninth interrogatory, speaks to their living in the same house, and at the same table; but that he has not conversed with the producent, or either of his fellow-witnesses since their examination, or since his own in chief, on the subject of this cause: he was admonished not to do so, and has attended to the same."

That is the way in which she ventures to answer that interrogatory. It is very difficult not to suspect-violently to suspect-that the contradiction arose from the two witnesses not having preconcerted what account they should give of this cheque: and it is equally difficult not to suspect, that there must have been, on the evening of the 1st of December, some conversation-some explanation, notwithstanding the very proper injunction from the Proctor; and that this correction by Cunningham sprung from that intercourse-James King, in his deposition in chief, having committed himself to the cheque being signed on the evening of the 24th. I find it therefore very difficult to believe that there had been no intermediate communication between them on the evening of Cunningham's first

statement, though James King, on the thirty-ninth interrogatory, unhesitatingly swears in the words already quoted.

Perhaps, without going further, this Court might be bound to say that it could not safely give credit to these two witnesses, and that the proof failed: but another important circumstance was pointed out by Dr. Phillimore in the course of the argument. The codicil, in question, is written upon precisely the same paper as the will; not only the same black margin, but the same water-mark; and it is hardly possible that James. King should have stumbled, at Bristol, upon a sheet of paper of the same sort as the deceased had happened to use, two years before, in writing her will: it is still less probable from another circumstance—the date of the paper; for it appears, upon further examination, that the date of the water-mark in each is 1813; so that James King, procuring a sheet of paper at Bristol to write this codicil, gets a sheet of paper of 1813, and that precisely corresponds with the paper of the will: this is next to incredible-it is a detecting circumstance. The counsel who spoke second in support of the codicil (for the first, if I remember correctly, did not advert to this observation), in accounting for this, was obliged to suppose that the fair copy had been made-not at Bristolbut at Hambrook, after James King's arrival on the evening of the 25th; for, had he deposed that it was written at Bristol, it was admitted it would be difficult to support his credit. His evidence is-and it is a material point

That" on the following day, in order to satisfy himself that what he had taken down in writing was of a legal effect, he made a transcript thereof in blank, as to names, and the amount of legacies, and called on an attorney, of the name of Day, and submitted the same to him. Mr. Day made a few verbal alterations: the deponent, from the original draft, and the blank transcript corrected by Mr. Day, in the course of the same morning, being the 25th of January, made a fair copy agreeably to the deceased's directions, in order to the due execution thereof as a codicil to her will." Further on he says-" he went up to the deceased's bedroom with the fair copy aforesaid"-[that is, the copy he had made at Bristol; for he had not made another]-and "from his pocket produced the aforesaid draft, and fair copy."

On the twenty-eighth interrogatory he says "that he did, on the morning of the 25th day of January (previous to drawing out, in its present form, the codicil in question), call at the office of Mr. Brooke Smith, an attorney in Bristol: Mr. Smith was not at home, in consequence of which respondent went to Mr. Day, before whom he laid an A. B. C. case for instructions to guide him in preparing the codicil in question. In the evening of the same day, and, after respondent had prepared and finished the codicil in question, he again (before leaving Bristol to go to the deceased) called on Mr. Smith, who was then, again, out of the way: respondent saw his managing clerk, Mr. Rawlinson, from whom he, verbally, enquired the form to revoke a bequest; which form Mr. Rawlinson wrote down on a piece of paper: respondent did so, to satisfy himself that the information he had, in the morning, obtained from Mr. Day was correct: he found that it was so."

Here, then, the witness, not in one passage, but repeatedly, does fix himself with having written the codicil at Bristol before his return to Hambrook Lodge; the paper is nearly conclusive to discredit the witness. to that fact.

The signature itself is suspicious-it is not unlike that to the first codicil-it is very dissimilar from those to the drafts signed by her within the last three months, and from that of the draft dated on the 24th or 25th of January-whichever it may be. And though Witchell supposes he may have seen this codicil signed, deception may have been resorted to, and the affair so managed as to impose upon him in that respect. Such a similitude to the former codicil, and dissimilitude from the drafts, is a circumstance not altogether free from suspicion, though it is not necessary that the Court should rely on it in the decision of this

cause.

ex

The whole transaction is clandestine, which, of itself, affixes a strong indication of fraud and contrivance. Here is not a single declaration by the deceased of a wish, about this time, to do a testamentary act of any sort-there is no recognition whatever by her that she had done any such act-there are no disinterested persons who have access to her, cept Mr. Baker. Here is, on the following day, the 26th, a messagesent by Gay from Mies King-to Russell, that " Mrs. Brydges is much in the same state, and could not see him"-excluding Russell thereby. Here is subsequent concealment-not venturing to disclose the existence of the paper, as if conscious that it would not bear investigation--all these are confirmatory circumstances of suspicion.

Looking, therefore, to the improbability of the disposition-from its difference, in the character and amount of the legacies, from the former papers-looking at the condition of the deceased-considering who were the persons around her-that they are, most of them, closely connected together, and are materially benefitted under this paper-considering also the necessary jealousy of the law in guarding the beds of dying persons against fraud, and circumvention-I am of opinion that the evidence of the two subscribing witnesses (for the third can prove nothing sufficiently material) is so shaken in credit, that the validity of this cocil cannot safely be pronounced for upon such testimony: I, therefore, pronounce against it.

No costs have been prayed by Sir Harford Jones-either from a conviction, that the deceased intended, and ought to have done, something in the way of remuneration for Miss King-or from a hopelessness of ever receiving them, if given: he has, perhaps, acted properly-but, certainly, very liberally, in not praying costs.

THE COURT, therefore, is not called upon to make any further observation on the subject, but merely to pronounce against the codicil.

DEW v. CLARK and CLARK.—p. 311.

A sentence of the Prerogative Court-pronouncing against a will, and decreeing administration to the daughter-having been affirmed by the Court of Delegates, and the cause remitted: the Court will not allow the execution of the sentence to be delayed-by a prayer for an answer to the interest of the widow, who had been cognizant of, though not cited to see proceedings-nor by a ca

veat.

21 Hen. VIII. c. 5. § 3. leaves it to the discretion of the Ordinary to grant administration to the widow or to the next of kin.

In the Goods of Dame SUSANNA GRAVES.-p. 313.

On Motion.

A monition against an administrator pendente lite, will be granted at the end of a suit, to compel him to transfer, to the person entitled, every thing in his possession acquired in that character.

A SUIT was lately depending in this Court respecting the validity of the will and codicil of Dame Susanna Graves, widow-promoted by William Blacknell Wilson, one of the next of kin of the deceased, against Robert Baxter, the surviving executor named in the said will; and afterwards against Daniel Heming, the executor of Robert Baxter, who died during the dependence of the cause.

An administration pendente lite-limited to the receipt and investment of the dividends due or to grow due on two certain sums of stock, "for the use and benefit of such person or persons as should thereafter appear to have a just right and title thereto"-was granted to Thomas Wilson, and Thomas Brooksbank, respectively the nominees of the parties in the suit.

The will and codicil were, on the 19th of February, 1827, pronounced to be valid; probate thereof was granted to Daniel Heming, and the limited administration pendente lite decreed to have ceased, and expired.

Mr. Heming had called upon the administrators to transfer the stock purchased by the dividends, as aforesaid, into his name: Mr. Wilson was ready, but Mr. Brooksbank refused, so to do.

Lushington now moved for a monition to issue against Mr. Wilson and Mr. Brooksbank, requiring them to transfer this stock into the name of Mr. Heming, the general representative of the deceased.

Addams, contrà.-That it is impossible to comply with the motion, one circumstance will satisfy the Court-a petition was presented to the Vice-Chancellor praying, that stock belonging to the deceased's estate, and standing in the name of the Accountant-General, should be transferred to Mr. Heming, and the application was refused.

Lushington.-The fact is, during the pendency of the suit, respecting the validity of the will, in this Court, the proceedings in Chancery were suspended: in that cause an order was made on Baxter-who had then a limited probate-limited to the property over which Lady Graves had a disposing power by settlement-to pay all stock into the Accountant-General's hands; certain stock was transferred; afterwards the limited probate was revoked and a general probate granted by this Court to Heming. The petition to the Vice-Chancellor was in respect to a sum of 7,000l. in the hands of the Accountant-General; and was refused, because the matter could not be decided on an interlocutory proceeding, but must wait the final hearing; but no order has ever been made on Brooksbank to pay over the money in his possession.

Per Curiam.

An administrator pendente lite is merely an officer of the Court, and holds the property only till the suit terminates; as soon as it is concluded he must pay over all that he has received, in his character of administrator, to the persons pronounced by the Court to be entitled: his other functions are then completely at an end, and the Court is bound to take

care he discharges the duty committed to him, as far as the delivery over of every thing to the proper party. In the present instance if there is any contest or opposition respecting the property, application must be made elsewhere, but as it is my duty to enforce the transfer of the stock, I am bound to grant this motion. If, from the proceedings in the Court of Chancery, there is sufficient reason to stop this transfer, an injunction may be applied for.

Motion granted.

In the Goods of JOHN O'BYRNE.-p. 316.

On Motion.

Administration being granted to a person out of his majesty's dominions, the sureties to the bond should be resident within the kingdom.

On the 16th of January, 1823, administration, under the sum of 100%. to John O'Byrne, was committed by this Court to Edward Gernon as the attorney of Mary Burke, widow-the lawful daughter of the deceased.

Addams―stating, that an increase in the property had arisen from the award of a sum by the Commissioners for adjusting the claims of British subjects on the French government-now moved the Court to enlarge the administration to the sum of 8,000l.; and to decree a requisition to issue to swear Edward Gernon, at Bourdeaux, to the truth of the premises, and to take his bond for the due administration.

Per Curiam.

This attorney is resident out of the jurisdiction of this Court; and the application is not only for a requisition to swear him, but also to take security; under these circumstances the sureties should be resident in this country; there should also be an affidavit why the additional grant is necessary, and it would be better to insert, if the fact be so, that no person in this country has a claim upon the property. This affidavit being brought in, the requisition may issue.

Motion granted.

MACLAE and EWING v. EWING and CRUM, and also v. REID and Others.-p. 317.

Probate will not be granted to a paper never seen by, nor read over, but only explained, to the deceased-who died suddenly before he saw the solicitor; the answers of the executor (speaking against his own interest) being the only evidence of instructions which were verbally conveyed by him to the solicitor; especially when the intentions of the deceased appeared fluctuating, and when there was a previous paper, in his hand-writing, clearly entitled to probate.

THIS was a cause of proving, in solemn form, the last will and testament of Robert Ewing deceased, promoted by Humphrey Ewing Maclae, and Margaret Ewing-the executors named in a will bearing date the 1st of June, 1825-against James Ewing and John Crum-two of the executors named in a testamentary schedule, bearing date the

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