another matter, namely, the suggestion that probably [this Court, leaving it open to each party to apply on the evidence there might have been evidence of to the Court for the insertion of any fact which some particular matter of fact which is not noticed in may have been omitted. The fact that the comthe case. A fact may have been omitted, or the im- missioners are not obliged to give way to frivolous portance of a fact may not have been seen, when objections shows the implicit confidence which the the case was prepared. If that point should arise Legislature reposed in them. We have no jurisdiction in the progress of the case, the Act of Parlia to decide upon the credit to be given to particular ment gives us the same power which we have witnesses; our jurisdiction is to act upon the facts in magistrates' cases, in which an express power found by the tribunal which has been created by the is given to us to send back the case if the Legislature. Are we to decide that the commissioners counsel tells us that there is evidence of some par- have not properly discharged their duty? If they ticular matter of fact not noticed in it. We can send have decided contrary to law, it is our duty to correct back the case in order to see whether the fact was their mistake; but we have no more right to attack omitted merely through mistake, or because the evi- their authority than they have to attack ours. What dence was not believed. With regard to the authority the Legislature has given is an appeal and not a reof the short hand writer's notes, it is true that they bearing, and I am of opinion that we should not go are not incorporated in the case. Reference has been into this evidence. made to the decision of the Court of Registry appeal. In that case there appeared facts sufficient to warrant the revising-barrister, so far as he was a juror, in coming to the conclusion at which he arrived, because there was proof there of the custom having been long exercised. There was evidence the other way tending to show that the custom was one of recent origin, but there was evidence which, if the tribunal below had consisted of the two distinct branches of a judge and a jury, the judge should have submitted to the jury. We held that we could not quarrel with the decision of the judge acting as a juror. It seems to me that our decision in that case cannot prevent us from doing what is asked in this case. I think, therefore, that it is open to the counsel for the appel- | lants to show either that there was no evidence of some particular matter of fact, or that there was evidence of some particular matter of fact which has been omitted. 1 Court of Common Pleas. [Reported by J. Field Johnston, Esq., Barrister-at-Law.j WHALLEY V. LORD MASSEREENE.-Jan. 29. Quare impedit-Suggestion of death of co-defendant. A co-defendant died pending the argument of a bill of exceptions taken at the trial by the defendants, and the plaintiff entered up judgment of venire de novo against all the defendants. On motion by the plaintiff that a suggestion of the death should be entered on the record, and the record, if necessary, be amended, Held, that the stat. 9 Wm. 3, c. 10, s. 7 (Ir), applied. LEFROY, C J.-In this case it appears to me that my brother Fitzgerald has in two words stated the essential distinction upon which the case turns-that ! is, the distinction between a re-hearing and an appeal. M'Causland, Q.C., for the plaintiff, moved that a The distinction between these two courses of proceed- suggestion be entered on the record of the death of ing is this:-Upon a re hearing you bring all the evi- Lord Massereene, prior to awarding a venire de novo. deuce before the Court which re-hears the case which Lord Massereene had died before the judgment. In' has a right to decide upon the application of that Newnham v. Low (5 T. R. 577), one of two plainevidence and upon the credit to be given to the wit- tiffs died before interlocutory judgment. [Ball, J.— nesses. If this was intended to be a re-hearing I am Has not the Common Law Procedure Act provided at a loss to see why the Legislature should have passed for this?] There is a question whether it applies. an Act taking these cases out of the hands of the ordi- | We are moving under the statute 9 Wm. 3, c. 10, nary tribunals, and referring them to commissioners s. 7. This is a case of surviving defendants and sole. whom it has made the judges both of law and of fact. Those commissioners were selected for the purpose of redressing the abuses of the law which had thereto fore taken place under the decisions of ordinary tribunals. The Legislature gave those commissioners the right of examining witnesses, and the power to take notes of the evidence, and having discharged those preliminary duties they are to come on that evidence, as to the relevancy of which and the credit of the witnesses they are the judges, to a conclusion as to facts; they are to make a record, not of the evidence, but of the facts which they find to be established to their satisfaction. For the purpose of an appeal they are to state not what this or that witness said, but the facts established, and having recorded these facts they are to refer them to plaintiff. We say we are entitled to enter a suggestion, and to proceed against the other two. Bouher and others v. Wood (Glasc. Rep. 75), a writ of error was brought. One of the plaintiff's died. There was one defendant. Thus there is one authority in England, and one in Ireland. Joy, Q.C., contra-This is for liberty to enter a suggestion on the record in pursuance of the statute. The only Irish statute is that of Wm. 3, and it does not provide for the present case. It contemplates the case where there is more than one plaintiff on the record. This is an application to the discretion of the Court. The notice goes on to say that the record shall, if necessary, be amended, without saying how. Lord Massereene died in April, 1863. Three full terms after, this is asked for by a party who does not He wants Motion granted. Court of Probate. Reported by W. R. Miller, Esq., LL.D., Barrister.at-Law. Pretend he did not know of the death long ago. They of whom is dead. He is going to trial. Want to send this down to be tried against the incum- to correct a mistake in entering up this judgment, and bent, who would be liable for costs. Lord Masse- if not, it will be virtually entering a stet processus. reene had a verdict in the first action. We have a We think that the words of that statute, "two or more writ of error which they did not apply to stay. plaintiffs, two or more defendants," apply as much [Keogh, J.-Is it seriously contended that the statute to one plaintiff and five defendants as to five plaintiffs does not apply?] This is an application to the dis- and one defendant. In the case cited it was the concretion of the Court. An amendment is asked, and verse of the present. We make the order that the it is not stated what it is. Judgment has been en-party be at liberty to amend this record by entering a tered. [Monahan, C. J.-As I understand, Lord suggestion of the death. Massereene died pending the argument of the bill of exceptions, and therefore before judgment.] This is a judgment against a dead man. The verdict against Lord Massereene has been set aside, and there is no verdict against him, but there is a judgment of venire de novo. The defendants are liable to costs, and poor clergymen are not able to pay costs, and are liable to six months' imprisonment. In Fishmongers' Company v. Robertson (3 C. B. 970), Wilde, C. J., says, "Speaking from my own experience of some 40 years, I must say I never knew a notion of this sort to be granted, unless where the delay had been the act of the Court." That was an application to enter up judgment nunc pro tunc. [Monahan, C. J.-Is it your argument that because judgment was entered after Lord Massereene's death, there are to be no more proceedings in this at all?] The application is to the discretion of the Court. [Monahan, C. J.-Henry Fitzgibbon, for the plaintiff, moved to fix the Supposing the House of Lords upholds the two mode of trial. The plaintiff had in his declaration Courts here?] Broom's Practice, 487. [Monahan, propounded a w. The defendant had pleaded, beC. J.-They want to do what they ought to have sides other plea, one to the effect that the will aldone before. The bill of exceptions was all right.leged by the plaintiff had been by another will made They say there ought to have been a suggestion on the file before the judgment was entered, and they want to have it entered now.] They omitted it deliberately, and for a purpose, and, if so, when the event has turned out contrary to anticipation, are they to be permitted now? The Court already decided on vowson. the demurrer in this case that the Common Law Produre Act did not apply. The Court of Error upheld that. The cause of action has not survived here. It is defunct. They claim the fee-simple. We defend the fee simple. Lord Massereene died. Who are the defendants? The incumbent and Carlisle, to whom Lord Massereene sold. The principal issue is, whether Clotworthy Massereene did or did not convey the adAs to the case in Glascott, that was a case of one defendant and two plaintiffs. [Monahan, C. J.-That is he converse.] It does not appear that there was any argument on this point [Ball, J.-What were the grounds in the case where it was refused? Was there any way in which the delay was accounted for or sought to be accounted for?] The death was in August, 1846, and the application in February, 1847. Is the delay here the delay of the Court? It is their own delay for a purpose. MONAHAN, C. J.-It seems to be almost as of course. An action of quare impedit is pending. It goes to trial, there being one plaintiff and four defendants. There was a bill of exceptions taken at the instance of the defendants. The plaintiff says advisedly, and no doubt properly, that he did not think it proper to enter the suggestion pending the argument, and he was right in not doing so. Where he made a slip was in entering up judgment against four parties, one Where a plea alleged that the will propounded in the declaration had been revoked by a later will, the date of which was not known, the provisions of which were inconsistent with those in the will alleged, and which had been given by the deceased to the plaintiff, the Court required a replication to be filed by the plaintiff. after the execution of the former, and the provisions of which were inconsistent with those in the former revoked, bat the exact particulars were not in the knowledge of the defendant; and that the said later will had been, after its execution, given by the deceased into the custody of the plaintiff. There was no alleation of its due execution, nor of its date or contents. The affidavit of scripts had denied all knowledge of any will save that alleged and another refer red to. Dr. Ball, Q.C., and Falkiner for the defendant. KEATINGE, J.-I think there ought to be a replication filed traversing the several statements in the plea. The affidavit of scripts could not have been pointed to those statements as it was filed before the plea. Order that a replication be filed. KEOGH v. WALL-Nov. 27. Costs-Next of kin failing to impeach will-Mitchell v. Gard (3 S. & T. 275) commented on and followed. Where a will of an aged person was drawn from instructions taken by her spiritual adviser, who, though not taking any beneficial interest under it, yet took most extensive fiduciary powers as sole trustee and executor for the benefit of the next of kin; and an alleged memorandum containing such instructions was not forthcoming; and the will was drawn from such memorandum by the attorney of the clergyman, who did not see the testatrix in referer.ce thereto, nor witness it; and the draft made by the attorney was not shown to the testatrix nor produced at the trial, the Court gave the next of kin their costs out of the estate though the will was established. the will was proved in common form a few weeks after the death of the testatrix; and secondly, that the plaintiff, a next of kin and a legatee in the will, has received his legacy. In ordinary cases it is the right of the executor to require a next of kin, being also a legatee, to bring in and lodge in Court the amount of THIS was a suit brought by the plaintiff, Michael the legacy paid to him before he is permitted to disKeogh (a son of the deceased Mrs. Catherine Keogh), bar. It might be shown that the legacy was paid pute the validity of the will. Still that is no absolute in order to have revoked a probate had in common and received under mistake or misapprehension of the form of the will of Mrs. Keogh, granted shortly after facts. But no such application was made in this case her death, in 1863, to the defendant, the Rev. John Wall, R. C. C. of Roscrea, the executor named in her and the cause proceeded. The pleas filed by the will and codicil, dated respectively the 23rd February of the testatrix, and also alleged undue influence exerplaintiff traversed the due execution and the capacity and 3rd March, 1863; and to have such will and co-cised by the defendant, who was the sole trustee and dicil proved in special form of law, otherwise to show executor named in the will. It required a very strong cause why the same should not be condemned. The will gave all the testatrix's property to the defendant on various trusts for the benefit of her three children, two sons and one daughter. The only bequest to the defendant was a sum of £10 for such charitable purposes as he thought fit. A sum of £300 was left for the daughter, to be disposed of by her as she thought fit by will, and in default thereof the defendant had a power to give it to either of the two sons as he pleased. It appeared from the evidence that the defendant had himself taken the instructions from the testatrix and made a memorandum at the time, which he had given to his solicitor, who had his office in Roscrea, who prepared a draft of the will, which he sent to the defendant, who returned it approved of by him, without showing or reading it to the deceased. The attorney then engrossed the will and gave it and the memorandum to the defendant, who on the same day got it executed by the testatrix, in the presence of two witnesses whom he selected. Neither the me morandum nor the draft were forthcoming; nor were they referred to in defendant's affidavit of scripts. The jury found a verdict establishing the will. Peat (Dr. Ball, Q.C., with him), for the plaintiff, asked for costs. The memorandum was not referred to, as it should have been in the affidavits of scripts mad: by the defendant.* Notice had been given by the plaintiff to produce it, but it was not produced. The plaintiff, besides being a next of kin, is also heirat-law. He went into no special casé. After a very case indeed, on the part of the next of kin, after such curred? The case his testamentary papers being surrounded with conIf the fault lies at the door of the testator, costs of ascertaining his will should be defrayed by his fusion or uncertainty in law or fact, it is just that the two rules, viz.:-" 1st. If the cause of litigation takes estate."-p. 277. And at p..278 the Court deduces its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate. 2nd. If there be sufficient and reasonable Dr. Townsend, for the defendant. The jury found ground, looking to the knowledge and means of knowthat no undue influence had been practised by the de-execution of the will or the capacity of the testator, ledge of the opposing party, to question either the fendant. The plaintiff had received his legacy of £50, and lay by for fourteen months, having allowed probate in common form to be taken by the defendant. If costs were given to the plaintiff they would come out of the pockets of innocent persons, as the defendant takes no beneficial interest under the will.-Gamble v. Robinson (8 Ir. Jur, N.S., 55); Douce v. Reed (8ment Ir. Jur., N. S., 39); Bell v. Armstrong (1 Add. 375); Miller's Pr. Pr. 160. KEATINGE, J.—The defendant on whom the onus was cast of proving the will and codicil in this case did not press for costs against the plaintiff. The plaintiff was a legatee in the will, and there are two matters in the case which prima facie would disentitle the plaintiff to costs and which generally would render him liable to pay costs. These are first, that * See Foxwell v. Pools (32 L. J., Pr. 6), on this point. 11 the losing party may properly be relieved from the or to put forward a charge of undue influence or fraud, costs of his successful opponent." Now, those last lines might be read as establishing that in the case put the losing party should only be excused from the payment of costs, but it is quite plain from the judgment, as it dealt with the question of costs generally, and as it dealt with the facts of that case, that the existed for raising an issue of undue influence, the meaning of the Court was that, if reasonable grounds party doing so, though he failed, might yet get his charge to the jury, I believe that the defendant incosts. In this case, as I said several times in my tended to act with perfect fairness, yet, whether the observation be general as to other cases, or be confined to this particular case, I consider that the interference as to a will, unless in cases of absolute necessity, of any clergyman with a party whom he has as a minister of religion attended, whether he takes an interest under the will or not, is much to be deprecated, and that observation is not confined to clergymen of any denomination. I am far from saying that in extreme cases, where a clergyman interferes and the will is established, costs must come out of the estate. All depends on the special circumstances of the case, and going back to Sir J. P. Wilde's judgment" If the fault lies at the door of the testator, &c., it is just that the costs of ascertaining his will should be defrayed by his estate." In the construction of that passage, I take it to be clear that if the testator himself, instead of being active, employs another who so conducts himself as to occasion doubt and difficulty as to whether the testator was competent and uninfluenced, the same rule will apply. Now in this case there were three children of the testatrix -two sons and one daughter, and she, the testatrix, an old lady, seventy-four or seventy five years old. It was arranged, on consultation between the deceased, the defendant, Mr. Wall, who was her confessor, and a Mr. Meara, a friend of hers, to divide the property in certain shares amongst the children, and that Meara and Wall were to be trustees and executors, or, according to Meara, he was to be executor, trustee or witness, but according to Wall, Meara was to be trustee and executor. The dispositions so agreed on were by Wall, at that consultation, committed to paper. That was in 1861; and a few days before the death of Mrs. Keogh, in 1863, various alterations were made in the memorandum as to the intentions of the deceased, and the most important one was that Wall was to be sole trustee and executor, and not in the ordinary sense, having only a legal estate, but subject to certain qualifications he was to have the right to deal with the property as he pleased. The daughter, it appeared, was not strong-minded; she was nervous, and it was quite right that she and her property should be protected by trustees. But the £300 which she was to get, Wall was to pay it or not just as he pleased to her, and if that stood alone there is evi dence to account for all that caution; but by the same will a house was left to the son Joseph, subject to the right of the daughter to live in it, and the residue was given to Mr. Wall to invest it in any securities he pleased, and to pay the interest and annual produce thereof; and any part of the principal he might, at any time, pay or not to the daughter, and on her death to whichever of the sons he thought required it most. And there were the most ample indemnity clauses in the will. A document of the kind should be narrowly watched. A codicil was then made. The daughter was dissatisfied as to the disposition of the house, and the house is then given to her for her life, with power to her to dispose of it by will, and in default then it goes to Wall in trust, to give it to either of the sons; and the £300, as to which no ultimate disposition was made by the will, is given to such persons as the daughter should by her will give it to, and in default then Wall is to select the son as before. He is put, in fact, in loco parentis, but to take nothing beneficially. The validity! of those documents was found by the jury, and in accordance with my charge, and they found that there was no undue influence. But the question remains, was or was not this a fitting case for a most sifting inquiry? And did not the admitted circumstances of the case present abundant ground of suspicion? In my opinion they did. This will was prepared from the memorandum originally written in December, 1861. Mr. Wall having made certain alterations in it, questions arose as to the time when same were made, and if made then to what extent; and the transaction has been so conducted that the parties have been left only to Mr. Wall's word for the instructions. I say that it is not right that in the case of a party claiming. though only in a fiduciary character, a property over which he has such extensive rights, such important facts should depend on the evidence of a person so circumstanced alone; and the parties must depend on his evidence, because the important document which ought to be produced has not been produced. I don't collect that such a stringent search has been made for it as ought to have been made, and it may yet be in existence. I give Mr. Wall credit when he says he believes it has been destroyed. But next of kin have a right to ask, if destroyed, why was it destroyed? Why it was not preserved? But another document existed which we ought to have had here, but which we have not-the draft prepared by the attorney. Where is that draft? It is not forthcoming. Why in general is a draft made? Of course to enable the party making the will to go over it and see if it carries out the intentions. Mr. Wall appears to have thought that as the memorandam had been approved of by the deceased, there was no occasion to read over to her the draft, and he did not take it to her. He approved of it himself and returned it to the attorney who then engrossed the will. I think it was a great indiscretion on his part in preparing a will of a person living within a stone's throw of him, and from instructions given to him by a clergyman-his own relation, and not taking the instructions from the lady herself. Ho would have done a duty to this old lady, whose attor ney he professed to be, and discharged his duty to himself, to the public, and to his profession to have stayed his hand and insisted on seeing the lady. But he did not even insist on being a witness to the will, and as to the codicil he was doubly indiscreet. He took verbal instructions from Wall varying to a considerable extent the provisions of the will. The house was taken from Joseph and given to Catherine, and extensive powers were given to Wall to act about it as if it were his own, and so also as to the £300. The whole case was eminently suspicious until the evidence was given. Now I think it was all fair and proper. I attribute no blame, save extreme indiscretion to the attorney. Then do the facts, as they appeared before the institution of the suit, and as they appeared in Court, justify the next of kin in vehemently suspecting undue influence? Satisfied as I am with the verdict, I say there was an abundant case of suspicion. I accordingly award to the next of kin his costs out of the estate. END OF REPORTS. Decree accordingly. Law and Equity Index ΤΟ THE IRISH JURIST, INCLUDING A DIGEST OF THE CASES DECIDED IN THE COURTS OF COMMON LAW AND EQUITY IN IRELAND, AS REPORTED IN THE SIXTEENTH VOLUME OF THE IRISH JURIST (THE NINTH OF THE NEW SERIES,) AND IN THE FOURTEENTH VOLUME OF THE IRISH COMMON LAW AND CHANCERY REPORTS. The letters at the conclusion of each paragraph indicate the titles of the Reports digested, and the names of the respective Courts, thus:-Ir. Jur. Irish Jurist-Ir. C. L. R. Irish Common Law Reports-Ir. Ch. R. Irish Chancery ReportsC. Chancery-R. Rolls-Q. B. Queen's Beuch-C. P. Common Pleas-Exch. Exchequer-Cir. Cas. Circuit Cases-Ex. Cham. Exchequer Chamber-Reg. C. Registry Cases-Crim. Ap. Court of Criminal Appeal-L. E. C. Landed Estates CourtAdm. Anmiralty Court-M. O. Master's Office-Consol. Cham. Consolidated Chamber-P. C. Judicial Committee of the Privy Council-Bank. Bankrupt Court-H. L. House of Lords. ABDUCTION, See CRIMINAL LAW. ADMIRALTY. Collision.] In a suit for collision against a steamship, where she was found to have caused the total loss of the promovent vessel, her owners will be exempted from liability, if it appear that she had a duly licensed pilot in charge, and that the pilotage was by statute compulsory. The Malvina, 9 Ir. Jur. N.S. 199, Adm. In a case of collision where the impugnant steamship was found in default, and relied on compulsory pilotage as exempting her owners from liability, the right of exemption will not be forfeited by the interference of her captain, if it clearly appear that the pilot alone was to blame for the collision, and that the acts of the captain were calculated to prevent or modify it. lb. Where an impugnant ship obtains the dismissal of a suit for collision by relying on the legal defence of compulsory pilotage, each party will be left to bear their own costs. Ib. In a suit for collision to recover damages, as in the case of a total loss, the impugnant vessel will be held liable, if she ported her helm when she should, under all the circumstances, have starboarded, and if she was herself the cause of the collision, in not exhibit ing coloured lights as required by the statute. The Swan, 9 Ir. Jur. N.S. 278, Adm. Salvage.] Special agreements with the owners by the masters of a tug-steamer tc a percentage on the earnings of the tug, and by seamen to increased wages, for foregoing all claims for salvage, will not be upheld by the Court of Admiralty, as being repugnant to general principle and prejudicial to the public interest, and as the effect of such agreements would be to take away from the actual salvors the motives to all enterprise and energy. The Maryanne, 9 Ir. Jur. N.S. 60, Adm. In this case, in which the derelict barque and cargo, which sold for £27,000, was saved from total destruction, but saved without risk to life or limb, the Court considering it a case of meritorious salvage, although not of first-class merit, awarded to the salvors a su of £1,080, or "two-fifths" of the value. Ib. The Court in distributing a sum awarded for salvage will award very liberal remuneration to a steam vesse specially built for and devoted to salvage services, inasmuch as she is not employed in general trade for the conveyance of goods and passengers, and depends entirely on her chances for public encouragement and support. Ib. In this case of derelict salvage the Court awarded a sum of £470 to the salvors, or a little more than |