appearing to a certain monition issued against him for payment of the same."(a)

Lushington and Dodson, for the appellant..

Jenner and Addams, contrà.

JUDGMENT.

Sir JOHN NICHOLL.

It is difficult to ascertain from the process what was done, or intended to be done, in this cause by the Court at Gloucester-whether the monition was obeyed or evaded and resisted. The monition itself is thus worded,—"That William Medows Hamerton do pay or cause to be paid to Isabella Frances Hamerton or to her proctor, for her use, an alimony pendente lite of twenty-five pounds per month, the same to be computed from the twenty-sixth day of April now last past, and so from thenceforward every month during the continuance of this suit, under pain of the law, and contempt thereof." This monition, therefore, does not require a personal appearance; nor does it direct the payment of the alimony into Court-but to the party, or her proctor. As far as I can discover, the party, on whom this monition was served, did not intend to be contumacious, but proposed to show that he had complied with the orders of the Court. Three months had elapsed from the return of the citation to the date of the monition: at which time 757. only were

(a) [1827. Arches. M. T. 1st Session.] Notwithstanding this appeal and the inhibition served on the Judge, the registrar, and the adverse proctor, the Court below was proceeding to follow up the decree of contumacy by certifying the contempt of Major Hamerton to the Court of Chancery; when Lushington applied to this Court for its interference.

Addams, contra, stated that these steps had been taken in error; but that Major Hamerton was in no danger of arrest.

The COURT said that the measure complained of was certainly very irregular; but as the inhibition had not been returned, this Court had nothing before it upon which to act: It had, however, no doubt that on this expression of its opinion, the proceedings would be stayed.

On the same day, in the VICE-CHANCELLOR'S COURY, Mr. Koe applied for an order to restrain the Cursitor of the Court from issuing out a writ de contumace capiendo against Major Hamerton, on the ground that he had appealed from the Ecclesiastical Court of Gloucester; but before the inhibition could be served, the Court of Gloucester had granted a significavit; and upon the production of that instrument, a writ for the arrest of Major Hamerton would issue, as of course. Under these circumstances, Mr. Koe trusted his Honour would interfere to protect this gentleman from arrest on a process that was not bailable. He had used every diligence in procuring the inhibition, so that no blame was attributable to him on that head. [The VICE-CHANCELLOR asked why the Court of Arches did not interpose its authority, for the purpose of enforcing its own order?] Mr. Koe replied, that the Ecclesiastical Court could not now protect Major Hamerton, as the affair had passed into the hands of the officer of the Court of Chancery.

The VICE-CHANCELLOR, on referring to the Act of Parliament (53 Geo. III. c. 127), found that the officer was "authorized and required to grant the writ upon the production of the monition." His Honour, therefore, felt that he could not be justified in making an order in opposition to a positive Act of Parliament. The case was a novel one, and might, in his opinion, be mentioned to the Lord Chancellor.

The LORD CHANCELLOR, on the same day, refused to entertain the application until notice should be served on the wife; and, being informed that she was in France, said, notice to her Solicitor would be deemed good service.-Further steps were, however, unnecessary, as no attempt was made to sue out the writ, after the opinion expressed by the Court of Arches.

due to the wife for alimony; but taking the period to the return of the monition, only five months had passed, and consequently 1251. would, on that calculation, be the utmost extent of her claim. Now, on the 27th of September, the day on which the monition was returned, what does the husband's proctor do? He refers to certain receipts, purporting to be for various sums paid to the use of the wife, amounting together to 1277. 10s., and "also a proportionate part of 701. as part of alimony decreed." What then is meant by this? The dates of the receipts are not given; no affidavits are offered to show that these payments had been actually made since the return of the citation-the receipts themselves were not exhibited, or, at least, they are not transmitted in the process to this Court. It seems, however, from the præsertim of the appeal, that it was intended to establish that certain payments had been made to the wife, since the institution of the suit, and, therefore, that the party was not in contempt. But it is difficult, from the documents. before me, to pronounce, confidently, with what object these receipts were brought to the notice of the Court, or, whether the Judge did right or wrong in the steps he then took. If there were no affidavit to show that the receipts were for payments made subsequent,-à fortiori, if by the dates it appeared that they were prior,-to the return of the citation; if no later payment were attempted to be proved, and no reasonable cause assigned for the neglect-in that case, as the monition had, on the 3d of August, been personally served on the husband, I am of opinion that the Court was justified in enforcing its decree by pronouncing him contumacious. If, on the other hand, the receipts were dated after the citation, and the mere want of affidavits to authenticate them, was the principal informality to complain of, the Court should have allowed a short time to the party to verify their contents before it certified him to be in contempt.

But in every point of view, there is sufficient to induce me to arrive at this conclusion, that it will be beneficial for all parties not to remit the cause. I wish it, however, to be distinctly understood, that if these payments were made after the return of the citation, they must be deducted as so much on account of the alimony that has been allotted to the wife; but if before, then they are not to be deducted; and the husband must forthwith pay the balance that is now due, and proceed immediately to the examination of his witnesses upon the libel. I pronounce for the appeal, and retain the cause.

WYLLIE v. MOTT and FRENCH.-p. 28.

(On the Admission of the Libel.)

In a libel for perturbation of seat, a title must not be pleaded as founded on purchase, sale, letting, or bequest, all which are illegal and void. The suit may rest on a possessory title, and acquiescence of former Church-wardens, and on the fitness of the party-from the number of family, amount of property,

&c.

Pews in a church belong to the parish for the use of inhabitants, and cannot be sold, nor let without a special Act of Parliament.

Church-wardens must exercise a just discretion in the allotment of pews, subject to the correction of the Ordinary.

A party not giving in his answers on the day of the return of the decree per

sonally served, will be pronounced contumacious: similiter a witness not appearing to a compulsory.

The occupier of a pew, ceasing to be an inhabitant of the parish, cannot let the pew with, and thus annex it to, his house, but it reverts to the disposal of the Church-wardens.

A pew can only be appropriated to a house by faculty, or by prescription. In a suit for perturbation of seat, if it appears that the Church-wardens have acted properly in displacing the plaintiff, the Court will dismiss them; but will not proceed to confirm the possession of the person seated by them, as it does not form part of the question before the Court, and may be injurious to the parish by taking the pew more out of the power of the Church-wardens.

The Office of the Judge promoted by OLIVER and TOLL v. HOBART.-p. 43.

An Appeal from the Episcopal Consistorial Court of Exeter. In criminal suits, as for adultery, &c. articles must be so specific as to afford a fair opportunity of defence.

PECULIARS COURT OF CANTERBURY.

MAGNEY and Others v. The RECTOR, CHURCH-WARDENS, and PARISHIONERS of the United Parishes of St. MICHAEL, PATERNOSTER ROYAL, and of St. MARTIN VINTRY.—p.

48.

(On Motion.)

A faculty for the appropriation of a vault "to the use of a family, so long as they continue parishioners and inhabitants of the parish," will be granted, if it may be done without probable inconvenience to the parish.

PREROGATIVE COURT OF CANTERBURY.

MORRELL v. MORRELL.-p. 51.

On Motion.

The Court will grant administration with a nuncupative will annexed, as contained in an affidavit of three witnesses, holding that 29 Car. II. c. 3. s. 23, applies to merchant seamen.

CHARLES MORRELL, while second mate on board a merchant-ship homeward bound from Jamaica, died at sea, on the morning of the 25th of February, 1827, after an illness of three weeks.

The deceased, on the evening preceding his death, being then confined to his hammock, requested the attendance of the master and stew

ard of the vessel, as also of a surgeon in the royal navy (a passenger on board,) and then, in their presence and hearing, addressed them (as set forth in their affidavit sworn on the 6th of April) to the following effect: -"That he wished to make his will; and that it was his desire that all the property he should die possessed of should go to his mother, to act respecting it as she might think proper." The affidavit further stated, "that from the weather being then so tempestuous, and from the rolling of the ship, it was scarcely possible for any one to have written a paper of any length at that time; and the master being constantly engaged on deck, the preparation of a will for the deceased to execute was postponed, and he died without having made any will other than that which he had thus expressed." The personal estate of the deceased, consisting of a balance of wages, his watch, and wearing apparel, was sworn to be under the value of 201.

The deceased left behind him his mother, and two brothers—both minors-the only parties entitled in distribution to his personal estate in case he had died intestate. In the month of August, a decree, with intimation, issued at the instance of the mother; and having been personally served on the two minors, in the presence of their aunt (after their mother, their next of kin,) and on the said aunt, at whose house they then

were:

Lushington now moved, that letters of administration, with the will nuncupative annexed of Charles Morrell, the deceased, be granted to Sarah Morrell, widow, the natural and lawful mother, next of kin, and universal legatee therein named. It seemed to him that this will did not fall within the restriction imposed on nuncupative wills by the statute of frauds, though some doubt had been entertained whether the 23d section applied to seamen on board merchant ships.

Per Curiam.

THE COURT was of opinion, that this will, being made at sea, would come under the exception in the 23d section of the statute of frauds; but said, that in this case, there was what was nearly tantamount to a rogatio testium, as appeared from the full statement of facts given in the affidavit of three disinterested and respectable persons. The property was very small, and the disposition natural. The Court, therefore, decreed administration with the will, as contained in the affidavit, to the mother as sole legatee-no executor having been named.

Motion granted.

YOUNG, otherwise MEARING v. BROWN.-p. 53.

On Motion.

An administrator, pendente lite, will be appointed, such appointment being necessary from the nature of the deceased's property, and from the conduct of one of the parties in the suit: and the nominee of the other party, on whose conduct there is no imputation, may be selected if shown to be impartial, competent, and responsible.

Phillimore moved for an administration pending suit, on the affidavit. of Mr. Young, one of the parties:-"That the deceased, James Brown Unwin, was, at his death, possessed of certain freehold and leasehold

houses (at Bethnal Green, and in Quaker Street, Spitalfields,) some of which are tenanted by persons accustomed to pay their rents weekly, and that unless they are so collected, there is great danger they may be irrecoverable. That Brown, the other party, since the commencement of this suit, has received some of the rents, and distrained for others; and having removed some of the household furniture and goods belonging to the deceased from his late dwelling-house, retains them in his possession." Young further made oath, "that he verily believes it is for the interest of this estate, that there should be an administrator pending the suit; and that William Gale, of Bethnal Green Road, who was the chief collector of the deceased's rents during his life, should be so appointed.

Per Curiam.

This is an application for a grant of administration pendente lite; and the first question is,-whether any necessity exists for the grant. The estate consists principally of houses, of which the rents must be collected weekly, otherwise there will be great danger of loss. This fact, as well as Brown's conduct, in collecting the rents, shows a necessity for the grant. The Court, then, is satisfied that an administration, pending suit, is proper in this case; and the next question is,-to whom it shall make the grant. The Court never selects either of the parties, but generally an indifferent nominee. Young is executor of a latter will,-there is no imputation on his conduct; but from the proceedings it appears, that Brown took probate, and, in some degree privately, of an earlier will; and he has since got possession of some of the effects,-conduct which was improper, and which is not denied. Who, then, does Young propose? Mr. Gale-who filled the office of receiver during the lifetime of the deceased: he knows the property,-no objection is offered to his responsibility and impartiality, nor any dissent expressed to his appointment. Let the decree issue to him.

Motion granted.

On a prayer to condemn Brown in the costs, the Court declined so to It thought the application premature, as the motion had been entirely ex parte; besides, no objection had been made to the person proposed, by Young, as administrator.

LAW v. CAMPBELL.-p. 55.

On Motion.

The Court will grant administration, with the will annexed, to one of two universal legatees, a decree with intimation having issued in the name of the other, who was since dead.

JAMES LAW, late a lieutenant in His Majesty's 46th regiment, died on the 20th of October, 1823, in the East Indies, leaving Lieutenant Campbell, on duty in that country, sole executor of his will. The deceased appointed his uncles, Henry and Edward Law, universal legatees. In July, 1827, a decree, with the usual intimation, issued at the instance of Henry Law, and was served on Lieutenant Campbell's agents, and also upon the Royal Exchange: no appearance being given, a decree, for the administration with the will annexed, passed on the Caveat-day, in October, to the said Henry Law: but this decree having become inef