Mr. Rouse to accompany Caird. They both went over, and found the deceased in his dining-room, at a writing-table, with papers before him: he said he was very ill, and had been making his will, being assured that he could not live long." He read the will to them, and tendered a pen to Rouse that he might witness it; and, undoubtedly, it is no proof of derangement of mind, in such a person, that he was not aware of the regular form of executing a will. Mr. Rouse (thinking the deceased bilious, and out of spirits,) feeling his pulse, said he was in no danger, rallied him, and told him, he was no worse than he had been before, and, in order to avoid depressing his spirits, prevailed upon him to postpone the formal execution.

On the ninth interrogatory he says:

"He advised the deceased to postpone the execution of his will, because he considered that his mind wanted rousing; that he was already too much depressed and out of spirits, and the execution of so solemn an instrument was likely to make him worse; respondent did not perceive that the deceased's mind was in a confused state, or that he was. unfit to make a will; his memory was perfect, and his understanding correct."

Caird fully confirms Rouse's opinion, so that this alone prevented the execution, there was not any hesitation on the part of the deceased: it was not deferred from his doubting or deliberating, but because his medical attendant dissuaded and diverted him from it.

Both these witnesses were well acquainted with the deceased; Caird had been his opposite neighbour for five years, with whom he used often to gossip, as he expresses it; Rouse, his apothecary, for some length of time. They knew his general mind, and habits, and deportment: if he had been, at this time, in a state of insanity and derangement, they must have discovered it. This evidence, then, bears strongly on both pointsfixed intention, and soundness of mind. I might, perhaps, rest the case here; but where there is any suggestion of insanity, it is proper to look at all confirmatory circumstances.

On the following day, the 18th of August, the deceased was worse, and Dr. Latham was called in. His disorder was not one of the headnot paralysis or apoplexy-not brain fever-it was diarrhea. Dr. Latham, it appears, was not then consulted for the first time-he had often attended him before. He says:

"On the 18th of August, 1825, he visited the deceased, who thought himself dying; that deponent laughed at him, knowing the deceased was not in danger; that on the 19th or 20th, when he again saw him, he was much better; that on the 21st, he found him in a state of great nervous irritation and excitement, which were partly allayed; but, on the 1st of September, he considered that the case should be treated as one which might end in confirmed insanity." He further says, "that on the 18th, and on the intermediate days between that and the 21st, he is quite certain that nothing occurred, in the manner and conversation of the deceased, which gave him any reason to believe that the deceased was not of perfect capacity; he conducted himself and conversed as a person of sound mind; and at no time previous to the 21st had he any cause for believing that the deceased was not of sound mind, memory, and understanding." And to the thirty-eighth interrogatory the same witness answers, "that on the days previous to the 21st of August, the deceased was, as respondent verily believes, and of his belief he swears positively, VOL. III.

10

of sound and perfect mind, and was capable, as he believes, of any act requiring calm and cool consideration."

It may not be unfit to remark that the character of the deceased's derangement, when it does actually take place, is rather delirium than delusion-rather high excitement than false impression. In delirium, intervals of coolness, and actual lucidity, åre much more common than when a permanent delusion has seized the mind; though, when excitement returns, some circumstance, that had before made a strong impression, may, not improbably, revert, and attend the delirium: such appeared to have been the case with respect to the deceased's notion that he had been robbed, and by Warren; but that is not an impression, in any degree, connected with the disposition contained in this instrument, nor showing itself in these testamentary transactions.

66

It was observed that there was an inconsistency in the legacy to Warren for his kindness and attention," and these repeated charges of robbery. In the first place, this argument assumes that the Kings are correct in fixing the date of those declarations between the 14th and 21st of August: in the next place, it assumes that the body of the will was written on the 17th, which might have been written long before the 14th; but, in the last place, what sort of inconsistency does it show? Inconsistency with the existence of insanity!--it shows, that when he wrote this will, he had not on his mind the false idea that Warren had robbed him; it, therefore, proves rather the absence than the presence of disorder. His whole conduct to Warren is natural enough, supposing him sane--he had, through error, and under excitement, made false charges against him on the 14th-he was convinced they were unfounded-Warren was hurt, and felt injured by them-on the next morning, the 15th, the deceased made him a present of a diamond ring-a sense of his injustice rendered that act not unnatural-on the 17th, being about to execute this will, by which he had bequeathed him 1007. only, he gave him a draft for another 1007. and King's bond for 3007. borrowed in the previous June or July. Whether the will was written before, and he made these gifts, not choosing to alter the will, or whether he preferred that they should not appear in his will-even if written on that day-yet they do not bear the character of an insane act, much less of still thinking that Warren had robbed him. His property was worth about 4000/.: the amount of these presents, particularly after their long connexion, and these unfounded charges, might not be irrational nor extravagant; nor does he irrationally give him either articles bequeathed specifically by will, nor even all his property ejusdem generis; for there are other bonds actually left sealed up, and the envelope thus indorsed, "To be opened by my dear cousin and executor Mr. James Hoby." This is not an unimportant act-it is an act of sanity, and not only so, but is strong to prove adherence. Whether written before the 17th, on the 17th, or after the 17th, it still has eflect-if before, it shows that the will was written before, and evidences a long and deliberate intention while sane; if on the 17th, it confirms the sanity on that day-if after, it proves adherence to this will-in either case it tends to support the will. Adherence, however, is very sufficiently established, and abandonment of, and departure from, intention, are in the last degree improbable.

On the 18th, the deceased wrote to his cousin, requesting he would bring down Brundrett, as he was extremely ill-in a dangerous way.'

Warren, who carried the letter, told the cousin that the deceased had alarmed himself; that the medical gentlemen thought that there was no danger, and that, in a day or two, he would be able to go to Brundrett (that no danger was apprehended is confirmed by the testimony of Latham and Rouse): Brundrett, the solicitor, was, therefore, not brought down; but on that, or the following day, his cousin went to see the deceased, and dined with him; the will was produced; this cousin urged him to alter it in favour of his brothers-the deceased refused, and said, "he would go to Brundrett the next day and have his will made out as it was; after the behaviour of his brothers to him, he would do no more than he had done."

Here, again, is firm adherence to the will, and sound mind.

The next day the deceased was no better; the diarrhea continued; and on the 21st he became delirious and insane, and so he remained till his death, though with intervals of calmness. The completion of the act was thus prevented, but the testamentary intention existed as long as capacity existed.

It has been asked-why was not the will executed in the intervals of the disorder?

In the first place, the intervals were hardly of that duration that it was proper, or likely, that such an act should be proposed. In the next place, the deceased was not in possession of the will; for when actual derangement seized him, all his papers were sealed up, and sent to Mr. Brundrett, his confidential solicitor, under the authority of James Hoby, who, by the instrument itself, as well as by the sealed envelope, was declared his executor.

Upon the whole, I am of opinion, that this instrument contains the same testamentary intentions of the deceased, and for these reasons:First, That it is founded upon the conduct and declarations of the deceased for years before his death; and this constitutes an important foundation of the act:

Secondly, That the deceased was of sound mind when he wrote, and, on the 17th, when he would have executed this paper; for no part of the contents connect themselves with the particular subject of the deceased's insanity-viz., his being robbed:

And, lastly, That the unfinished state of the instrument is sufficiently accounted for, and the adherence to it sufficiently proved.

I, therefore, pronounce for the paper. As to costs: Thomas Hoby, as one of the next of kin, was justified, from the unfinished state of the paper, in putting the executor on proof of it: I shall then give no costs against him; nor shall I allow his costs out of the estate-because he has set up insanity, and abandonment, and has failed to prove them-besides he has a legacy of 100l. under this instrument: nor shall I give them to the other brother who has intervened, as the appearance of two parties in the same interest, by different proctors, is not to be encouraged. I shall leave them to the liberality of the executor. Probate decreed.

HILARY TERM.

ARCHES COURT OF CANTERBURY.

BRAY v. BRAY.—p. 163.

On the Admission of Additional Articles.

In a suit for separation by reason of cruelty brought by the wife, an acquittal of her witnesses (for a conspiracy in counselling her to institute this suit) upon an indictment-laid by the husband-and his evidence thereon-in which he admitted, and repeated, certain accusations originally alleged in the libel as acts of cruelty-may be pleaded as a continuation, and admission, on oath, of that cruelty.

THIS was a cause of divorce, by reason of cruelty, originally promoted in the Consistory Court of London by Saba Eliza Bray against the Reverend Bidlake Bray; and came up to this Court by appeal from the admission of the libel. On the by-day of Michaelmas Term, 1827, the decree was affirmed, and the cause retained.

The present question was the admissibility of certain additional articles-pleading, first, that in February, 1827, an indictment was preferred, on the prosecution of Mr. Bray, against Elizabeth Malkin, the mother of Mrs. Bray; William Hammersley, her uncle (indicted by the name of William Spode); George Vance, her medical attendant; and Robert Shank Atcheson, her solicitor, for conspiring to separate Mr. and Mrs. Bray; and "for counselling Saba Eliza Bray to promote against the said Bidlake Bray a certain cause of divorce, or separation, by reason of cruelty;" that the Grand Jury, on the evidence of Mr. Bray, and of another witness, returned a true bill; that the indictment was heard before Lord Tenterden, and a Special Jury, on the 2d of November last, when Mr. Bray and many others were examined for the prosecution; that no witnesses were examined for the defence, but the evidence of Mrs. Bray, whose examination, taken in private, lasted four hours, was read; and the Lord Chief Justice then declining to receive any further evidence, the Jury thereupon acquitted the defendants.

The second article exhibited, in supply of proof, a copy of the bill of indictment.

The third, in substance, pleaded:-"That, in the examination of Bidlake Bray on the trial of the said indictment, he did admit and confess, that he had declared both before and after the birth of the child, of which his said wife, Saba Eliza Bray, was delivered, that he believed it to be the child of her uncle; that he had also asked the said Saba Eliza Bray, his wife, if she knew the meaning of incest, and that he had intended to convey to his said wife a reproach of incest with her uncle, William Hammersley, by his manner and insinuations; and the said Bidlake Bray did, in like manner, on the said occasion, admit that he

had, both before and after the birth of the said child, declared that he thought she, the said Saba Eliza Bray, did not come a virgin to his bed." Phillimore and Addams, in objection.

These articles are inadmissible; they can furnish no useful information: the libel consists of no fewer than 37 articles; they embrace a long period of time, and are very detailed as to acts of cruelty; and two and twenty witnesses have been examined upon them. The Court has never gone so far in admitting evidence of "res inter alios acta;" the verdict at common law against a paramour is allowed to be pleaded, in divorce causes, to show there is no collusion; but even that, till latterly, was not admitted without much opposition(a). Another objection is, that we shall be compelled to plead the grounds of the verdict, and go into a voluminous statement of Mrs. Bray's evidence. In Brisco v. Brisco, the wife was charged with adultery; and the Court of Delegates(b) would not allow the proceedings in Winnington v. Winnington(c) to be invoked, in which Winnington was proved guilty of adultery with Lady Brisco.

Dr. Jenner.-No. Winnington was proved guilty of adultery with a person supposed to be Lady Brisco.

Per Curiam.

The reason is clear, that was another cause to which neither husband nor wife was party.

Argument resumed.

We remember no instance of the introduction of the proceedings in detail, as well as of the verdict. Besides, how is this indictment cruelty? it is a proof, as far as it goes, of his attachment to his wife. Again, as to the declarations, it is not pleaded that they were made to Mrs. Bray in person; but further-these very declarations have already been pleaded in the libel.

Jenner and Lushington, contrà.

There is a great deal in this case not easy to prove, except from the declarations of the husband made at the time, or immediately subsequent; therefore the Court will not easily be induced to reject clear evidence of such declarations. As to the objection "res inter alios acta," in Verelst v. Verelst, 1 Phil. 145, the cross-examination at Common Law was invoked to discredit a witness; here, too, Bray was the party prosecuting, and was examined as a witness. Are not the repetitions of the accusations evidence of cruelty; and can the Court, on account of the length of the plea, exclude the admissions on oath of the husband that he has made such accusations? It is established that the indictment was unfounded, and only brought to put an end to this suit: this is material for the Court to know.

Both on principle, and precedent, these articles are admissible, especially when the original declarations were made in the absence of witnesses, and the whole passed merely between husband and wife. JUDGMENT.

SIR JOHN NICHOLL.

THE Court would be very unwilling to load, unnecessarily, the cause

(a) Vide Elwes v. Elwes, 1 Consistory Reports, 289, note; and Loveden v. Loveden, 2 ib. 51.

(b) Brisco v. Brisco. Delegates. 24th of July, 1826.

(c) The case of Winnington v. Winnington was decided in the Consistory Court of London on the 23d of June, 1826.