Per Curiam (Dr. Hay).

The Court observed-It may be mistaken in whom is the intereston that point it has no jurisdiction. The Court is ministerial, and must follow the statute: the statute Edw. 3. c. 11. having said the next lawful friend, and the statute of Hen. 8. explaining it to be the next of kin. There is no difference between the first administration and the administration de bonis. If the husband forgets to administer and dies, the next of kin will have the administration. I decree the administration, de bonis, to the next of kin of the wife.

REECE (formerly MILNER) v. STRAFFORD.—p. 347.
An Appeal from Worcester,

JANE STRAFFORD (formerly Milner), wife of Thomas Strafford, was the deceased: her husband died without taking administration. Court at Worcester granted administration to Sally Strafford, widow— the relict (second wife), and administratrix of Thomas Strafford. A citation issued, at the suit of Elizabeth Reece-the sister and next of kin of Jane Strafford deceased, to show cause why this administration should not be brought in, and a new one decreed to her. The Court, however, affirmed the grant; and the case now came, upon appeal, before the Dean of the Arches for his decision.

Per Curiam (Sir William Wynne).

The question is whether administration of the wife's effects should be granted to the representatives of the husband, or to the next of kin of the wife? This has been long settled here. Formerly it appears to have been thought discretionary in the Court-perhaps because grants (without the statute or against it), are made to the residuary legatee. There are several cases. Wellington v. Dolman was solemnly argued in the Prerogative Court in 1736, and by Common Lawyers. Elliot v. Collier, in Chancery (1 Ves. Sen. 15)-a suit by the next of kin of the wife for an account-in which it was held that they had no right; but it is laid down, in that case, that the Ecclesiastical Court was bound to grant administration in that course. In Kinleside v. Cleaver-before the Delegates in 1748-the husband took administration: it was held that made no difference, and the grant was directed to issue to the next of kin of the wife. Since that decision the practice has been settled(a).

The only point for me to consider is, whether there is any objection to the citation: it was irregular, inasmuch as it only called upon the party to bring in the administration and show cause why another should not be granted, and that it did not say-to show cause why the original administration should not be revoked;-but the grant is revoked as to the party when it is brought in; the citation, then, was sufficient.

The Judge below granted administration to the only party asking it; when that was called in, he confirmed it. No costs were given in the first instance, but it is so clear a point here, that the party might have been satisfied on any advice, and, therefore, I give the costs of the appeal.

Sentence reversed.

(a) Vide Roper on Husband and Wife. Vol. 1. p. 205. 2d Edition.

CONSISTORY COURT OF LONDON.

WEBB v. WEBB.-p. 349.

(On Motion.)

Facts of adultery newly come to the knowledge of the party may be pleaded after publication.

THIS was an application for leave to bring in an allegation, pleading further adultery on the part of Mrs. Webb, since the admission of the libel on the 10th of May, 1827.

The affidavit of the husband stated that he came to London from Bath on the third day of February instant, and that, until the fifth, he had no knowledge, nor any information, that a criminal and adulterous intercourse had been formed and carried on between his wife and Thomas Walton; that he believes such criminal connection is still subsisting, and that he shall be able to substantiate by evidence the allegation now offered on his behalf.

Dodson-in support of the motion.
Jenner-contrà.

Per Curiam (Dr. Lushington.)

It has been correctly stated, that the practice of the Ecclesiastical Court is to allow facts of adultery, that may have come to the knowledge of a party even after publication, to be pleaded: but such pleas must be strictly watched-they are open to suspicion, and care must be taken lest litigants should avail themselves of information from the evidence. In the affidavit before the Court, it is not sworn that the husband has not had access to and read the depositions-the presumption is that he has perused them. But in the case of Sir Wastel and Lady Brisco, 2 Add. 259, adultery was suffered to be put in plea long subsequent to publication-where the party was in full possession of the evidence taken on the original case, and where, if great diligence had been used, the fresh charge might have been sooner pleaded, the additional fact alleged being adultery with one of the female servants, and the birth of two children. Now, here, Webb is an attorney at Bathhe has professional avocations to detain him there; the adultery, if committed, has been in London, and he has not had the same means, therefore, of discovering any recent misconduct of his wife, as others might have possessed; and he has sworn, in his affidavit of the 9th of this month, that he only knew of this connection a few days before; he has then taken the earliest opportunity of bringing it to the notice of the Court. I shall watch the proof of this additional plea with great jealousy, but I must, according to practice, permit the allegation to be introduced.

Motion granted.

HARRIS v. HARRIS.-p. 351.

1. In answers to an allegation of faculties, it is proper to state that the wife brought no fortune; but not that her father is possessed of large property.

2. The estimated value of all marketable securities must be included in the calculation of the husband's income, in order to the allotment of alimony, pendente lite.

THIS was a suit of divorce instituted by the wife on a charge of adultery. An allegation of faculties having been admitted, the answers of the husband were taken, and, in respect thereof, each party had made and brought in an affidavit. The sufficiency of the answers was the question before the Court.

In his answers to the first article, the husband claimed a deduction of 267. 1s. 8d. as an annual payment for the assurance of the sum of 1,0007. on his life; and-in his answers to the seventh article-after admitting that he was entitled to six shares in the Economic Insurance Office, for which he paid 1,500/.; and also to one hundred shares in the Asylum Insurance Office, for which he had paid 4807., but that some further instalments still remained due thereon; said, "that his (the respondent's) shares in the Economic were all mortgaged and assigned as a security to his agent for advances already made and to be made to the respondent, for the purpose of paying outstanding debts now owing by him, amounting to 2507. or thereabouts, and to meet the expenses of the present suit, and he therefore derives and will derive no income whatever from such shares; and he further saith that his shares in the Asylum Insurance Office are also at present unproductive of income to him, the rules of the said office requiring as a condition of his holding such shares, that the interest thereon be paid into the office as instalments of payment for the said shares, for which purpose such interest will be applied for the next six years at least."

In a further part of his answer to the same article" that he had not on his marriage, nor has he ever since had any portion or advancement whatever with his wife, although her father is possessed of a large property and income."

Phillimore and Addams, in objection to the answers.

Jenner-contrà.

Per Curiam.

In disposing of the objections, the Court observed that, in answers to an allegation of faculties, to state that the husband had received no portion with his wife was customary and proper; but the introduction of that part of the husband's answer to the seventh article-that his wife's father was in possession of a large property and income-was improper: it could have no weight in an allotment of alimony; and was inadmissible on two grounds: first, because it might lead the Court into an inquiry as to the amount of the father's property; and secondly, because there was no legal obligation on a father to maintain his daughter after marriage. The Court was also of opinion that the husband was not entitled to make any deduction in respect of the 1,000l. for which he had insured his life, inasmuch as a policy of insurance was capable, at any time, of being converted into money; and further said, that though it might be true, the shares in the Asylum Insurance office might not, in the first instance, be available as income, yet if the Court were to allow VOL. II.

20

this exemption, a husband might so invest his income as to evade all claims upon him for the support and maintenance of his wife.

The Court-after entering into a calculation to ascertain the amount of the husband's income-continued:

Taking, then, the income of the husband at 250l. per annum, and considering that he has two children to educate and maintain, and that he will have to pay the expenses of this suit on both sides, I allot to the wife the sum of 757. per annum, as alimony, pendente lite: she must have the means of furnishing herself with a decent subsistence.

THE COURT directed the alimony to commence from the return of the citation, and that the amount of all debts which the wife had incurred since that time, and which had been discharged by the husband, should be first deducted.

Easter Term.

ARCHES COURT OF CANTERBURY.

The COUNTESS of PORTSMOUTH v. The EARL of PORTSMOUTH, by his Committee.-p. 355.

A marriage de facto, solemnized, under circumstances of clandestinity, inferring fraud and circumvention, between a person of weak and deranged mind, and the daughter of his trustee and solicitor (who had great influence over him and by whom he was clearly considered and treated as of unsound mind) pronounced null and void; and the pretended wife condemned in costs.

THIS was a suit of nullity of marriage instituted, originally, in the Consistory Court of London, on the part of the Earl of Portsmouth, acting by his Committee; and, in an early stage of the proceedings came up, by appeal, to the Court of Arches, where it was retained.

The cause was argued by Lushington and Pickard for the Earl of Portsmouth; and by the King's Advocate and Dodson contra. JUDGMENT.

Sir JOHN NICHOLL.

This suit is described as brought by the Earl of Portsmouth, acting by his Committee, against Mary Ann Hanson, falsely calling herself Countess of Portsmouth, to have a marriage, in fact solemnized between them, declared to be null and void in law.

The proceedings originated in the following circumstances. In January 1823, a Commission issued to inquire into the alleged lunacy of Lord Portsmouth:-the inquisition was executed-very long proceedings took place the matter was strenuously contested-a great number of witnesses were examined-and the finding of the Jury was, "that

Lord Portsmouth is of unsound mind, so that he is not sufficient for the government of himself and his property, and has been in the same state of unsound mind from the first of January 1809." In consequence of this finding, Mr. Henry Fellowes, a distant relation, was appointed Committee; and, by an order made in the Court of Chancery, the Committee was directed to institute proceedings in the Ecclesiastical Court "for the purpose of annulling and declaring void the marriage of John Charles Earl of Portsmouth with Miss Mary Ann Hanson, now Countess of Portsmouth."

Thus the proceedings commenced in the Ecclesiastical Court. verdict would not of itself affect the validity of the marriage, de facto solemnized-though solemnized within the time of the finding by the Jury. The finding is a circumstance and a part of the evidence in support of the unsoundness of mind at the time of the marriage, but no more; for this Court must be satisfied by evidence of its own, that grounds of nullity existed. Accordingly a long libel was given in, setting forth in detail the mental condition and unsound conduct of Lord Portsmouth, and the measures pursued to effect the marriage; his birth in December, 1767; the death of his father in 1797; the great weakness of his mind from the earliest period; his marriage with Grace Norton in November 1799; the settlement on that marriage, and the names of the trustees; Mr. John Hanson, the solicitor of the family, being one of those trustees. libel goes on, that after that marriage his mental weakness increased until at length he became of unsound mind, that he so continued and still continues of unsound mind: averring, therefore, that he was from his birth and before his first marriage, not of "unsound," but only of "weak mind," which afterwards "became unsound." The libel then proceeds to allege a variety of facts from that marriage till the death of Grace Lady Portsmouth, as indicating unsoundness of mind, and proving that he was treated as a person incapable of managing his own property, and was always kept under a certain degree of superintendence and restraint. It further recounts Lord Portsmouth's conduct on the death of Grace Lady Portsmouth in November, 1813, and the circumstances attending the second marriage to Miss Hanson on the 7th of March following, to show that that marriage was not the act of a person of sound mind, but was effected by fraud and circumvention. It then details the subsequent conduct of Lord Portsmouth and the treatment he experienced, in continuation and confirmation of his former unsoundness. It mentions the birth of a female child at Edinburgh, in July 1822; his removal from thence just before that event by some of his family, and the subsequent proceedings under the inquisition already mentioned.

This is the general substance of the libel. The prayer of it is, "that the marriage may be declared null, by reason of the Earl being at the time of unsound mind and incapable of forming such a contract; and also by reason of the fraud and circumvention practised on him upon that occasion; and that Mary Ann Hanson may be condemned in the costs of suit." It consists of forty-nine articles, and on it sixty-seven witnesses have been examined.

On the part of Lady Portsmouth, an allegation in reply was given, setting forth that Lord Portsmouth-was possessed of a capacity and understanding fully equal to the ordinary transactions of life-was so considered and treated by all persons, till removed from Edinburgh on the 2d of July, 1822-corresponded with his friends-mixed in society like