would have taken the same course. Thus viewed, it is an ordinary occurrence, from which no inference of adultery can be drawn. One of the witnesses, the cook, thinks they must have committed adultery; but she is a very forward witness. The housemaid can say nothing as to the adultery; she can form no belief as to that; and there is nothing to war> rant the Court in drawing that conclusion; no fastened doors; no forbidding of interruption; no marks on the sofa; no discomposure of dress; no familiarity seen. The husband has not ventured to cross-examine Mrs. Mathews. There is nothing, therefore, but what is consistent with the most perfect innocence. It may, connected with other circumstances, be suspicious: there might be familiarities, a pressing to the heart, as the letters would seem to indicate; but there is nothing to justify the Court in concluding that which must consign Mrs. Hamerton to disgrace.

There is another circumstance not entirely to be laid out of the case. From the libel it is to be inferred that Mrs. Mathews was privy to, and conniving at, the adultery. The cook seems to suggest that. If so, Mrs. Mathews must be one of the most infamous, most abandoned, and most profligate of women. She would be a procuress and be almost prostituting her own daughter. Up to this time Mrs. Mathews was considered as a most respectable person. Sir Alexander Bryce, and the Reverend Dr. Yates, two of her intimate acquaintance, give her the highest character. She was also the intimate and dear friend and benefactress of Mrs. Hamerton's mother; she had almost brought up Mrs. Hamerton as her own child; she has been examined as a witness, and consequently exposed to a cross-examination, but Major Hamerton has not addressed to her a single question. She states, "that she would on no account have lent herself to any connexion of a criminal nature between Isabella Frances Hamerton and John Bushe, or any other parties." And at the end of her evidence on the second article, is this passage: "Deponent verily believes that on no occasion of the meeting of the said parties at her house did they commit adultery: the thing was morally impossible." So then Mrs. Mathews, as far as in her lies, negatives the commission of adultery at her house, and if the offence was not consummated there, there is no other place where there is any semblance of its having been effected; the husband then has failed in his charge, though he has examined thirty witnesses, and the wife is entitled to her dismissal upon the oral evidence.

But there are letters exhibited, addressed by Mr. Bushe to Mrs. Hamerton under the feigned name of Mrs. Godolphin; and it is proved that she fetched and received these letters from the Post Office. They are written, as I have before said, between the 10th of January and 15th of March 1827. There is an allusion in several of them to Mrs. M., and in one of them, No. 8, to a note from Mrs. Hamerton inclosed by Mrs. M.-If by Mrs. M. was meant Mrs. Mathews, it would give a very unfavourable colour to her conduct and evidence-perhaps even a different aspect to the charge. But who Mrs. M. is, has not been explained in the evidence. It has not been pleaded, that by Mrs. M. was meant Mrs. Mathews. There is, I observe, at the end of the letter, No. 8, a reference to a Miss M. Now in the evidence there is no mention of Mrs. Mathews having any daughter, and therefore I see no reason to suppose that Mrs. M. meant Mrs. Mathews. No interrogatory has been put to Mrs. Mathews to know whether she had forwarded a note, and if she had, to explain how it happened.

The letters have been much examined and commented upon. I have + read them over and over again; but I do not intend to follow the counsel in their comments. They are written in an ardent and romantic strain; Bushe soliciting interviews for criminal purposes, for it is impossible his object, in thus addressing a married woman, could have been other than criminal, or that when a married woman receives such letters from a married man, but that she must know they were for licentious purposes. Still however some women will go a great way with-+/6 out proceeding to the last extremity of guilt; and the Court must be satisfied not only that there has been a surrender of the mind, but of the person. It has been argued, that these letters show that actual guilt had passed; but on reading them, and after the argument, I think they contain no unequivocal reference to, nor inference of, any act of adultery committed. The parts relied on are capable of explanation, though attended with much suspicion: and when the oral evidence has entirely failed in establishing the offence, and no occasion can be pointed out when adultery was actually committed; and when even these letters do not refer retrospectively to meetings at any particular time or place, it would be too much to say that such equivocal documents can be admitted as sufficient and conclusive proof.

The letters seem to show that she had consented to an interview, and had promised that she at last would meet him at the Pavilion. They are, as already observed, strange extravagant stuff, breathing the most ardent affection, and soliciting interviews, written by a profligate libertine, professing something like an honourable attachment to a weak, vain, silly woman: he a married man and she a married woman. It was highly blameable on her part to allow this correspondence, but it is hardly possible, considering the profligate character of the writer, but that they would have contained some strong and unequivocal reference to an adulterous connexion having previously taken place, some more direct and more gross allusions to past criminality, if she had surrendered her person. I do not go so far as to say that they negative adultery, but coupled with the want of oral evidence, they do not sustain the charge.

Thus then stands the evidence on the libel, and on it I do not feel myself warranted in pronouncing the adultery to be proved. There is, however, an additional article alleging a renewal of adultery at Paris, where it is pleaded Mrs. Hamerton took up her residence in the early part of February, after she had removed from her mother's house at Tours. Now the only witness to this part of the case is an attorney's + clerk, a young man, not more than twenty years' old, and he was sent over to Paris, in March or April, for the purpose of collecting evidence. Surely, if such was the object of his journey, it is a further reason why the Court must consider the only proof, now adduced on this article, insufficient and unsatisfactory. The whole of this witness' evidence is, "that on the 5th of April, he saw Mrs. Hamerton get into a carriage at No. 51, in a street he describes, and that after driving about for nearly an hour, she returned to a street, close adjoining, and there entered a house, No. 3; after which the carriage drove away with a lady in it. He says, Mrs. Hamerton remained in that house for about four hours, and then walked home alone; and that shortly afterwards he saw Bushe come out of the same house, dressed as if he had not been out before on that day." How could that be known to the witness? Bushe might

/3.

X

have gone in dressed, while the witness was absent, and besides it is "In not proved that Mrs. Hamerton knew Bushe was in the house. less than a week afterwards, he saw Bushe get into a coach at No. 3, and, at No. 51, Mrs. Hamerton and another female, with bundles, get into it." This is a circumstance leading to a suspicion that Bushe and Mrs. Hamerton were renewing their intercourse. She happened casually to be at Paris; and there is nothing to show that the meeting was other than accidental. If innocent, she might be ignorant that Bushe was at the house, No. 51; and the female accompanying her, when seen with the bundles, might be her mother; they might then have been going back together to Tours; and Bushe might have called to make contrite apologies for having, by his former attentions, brought upon her these accusations. The circumstance however is certainly suspicious; but the wife is abroad, and this forms no part of the original 391 charge. The Court, therefore, would not be warranted in drawing a conclusion of criminality, when the facts were capable of a construction of innocence. It must have proof of guilt, and it cannot listen to any excuse offered on the ground of the expense, that would be necessarily incurred, in examining witnesses by commission at Paris.

As was strongly urged by the counsel for the husband, it is a great hardship for him to remain liable to cohabitation with a wife so imprudent, and so culpable, as to allow of this correspondence: but still the presumption is in favour of innocence, and without proof of actual criminality-of real adultery-it would be an injustice to cast her upon the world without a provision. No application is, as I understand, at present made to the Court, on the part of the husband, to rescind the conclusion, and permit him to go into further evidence, or to give in further articles. If he is desirous of doing so, the Court would be very unwilling to refuse an application of that kind, when there is proof of such criminality on the part of the wife.

Upon the application of the counsel for Major Hamerton, the cause was directed to stand over; and on the third session of Hilary Term, 1829, his affidavit was exhibited, which-after stating that his Proctor, and William Gyde, had, about the 25th of November, 1828, gone to Paris in order to make inquiries respecting Mrs. Hamerton; and after stating the result of those inquiries,-thus proceeded: "that he has been informed and verily believes that, on or about the 20th of December, 1828, and not before, it was ascertained that evidence could be adduced in proof of the facts pleaded, and that the facts have come to his knowledge since the said 25th of November, and that he verily believes that he shall be able to prove the contents of his allegation." This affidavit was corroborated by that of Mr. Gyde.

Upon these affidavits the Court rescinded the conclusion of the cause, and allowed an allegation to be brought in. (a) From this order an appeal was immediately entered.

(a) It is a known maxim in the civil law, "Causa nunquam concluditur contra judicem:" Oughton, tit. 117. s. 3. m. "Quoad Judicem," says Gail, "nunquam in causâ concluditur, et ideo ex officio conclusionem rescindere, ulterioremque probationem partibus injungere potest." Pract. Obs. lib. 1. Observ. 107. s. 5. et seq.-This principle has been frequently adverted to and adopted in matrimonial causes. See Elwes v. Elwes, 1 Consist. Rep. 292. Searle v. Price, 2 Cons. Rep. 191. Wyatt v. Henry, Ib. 219. And the editor has printed, in a Supplement, some notes of other cases where the same principle has been recognized and acted upon by Lord Stowell, and the late Sir William Wynne. Vide "Supplement," p. 134. et seq.

The Office of the Judge promoted by

BENNETT v. BONAKER, Clerk.-p. 25.

The Court is bound to admit articles by a church warden against an incumbent for frequent irregularities in the performance of divine service, and of parochial duties, and also for his violating the churchyard: nor (the suit being commenced in April 1828, and the alleged offences being laid from September 1824, till January 1827) is the lapse of time any bar.

By the general law the church service ought to be regularly performed every Sunday morning and evening. Any relaxation is to be supposed to have been permitted by the diocesan, owing to the circumstances of the parish; and the terms prescribed must be strictly observed.

The Office of the Judge promoted by

MOYSEY, D. D. v. HILLCOAT, D. D.-p. 30.

A chapel being shortly before 1735 built by private subscription, and subscribers agreeing, out of the pew rents, to pay the Rector of the parish a yearly stipend for performing divine service, a license was obtained from the Bishop to the Rector and his successors, who, from time to time, performed therein parochial duties, but there was no proof of consecration, nor any of composition, between the patron, incumbent, and ordinary; such chapel is merely proprietary, and the Minister, nominated by the Rector of the parish and licensed by the Blshop, cannot perform parochial duties therein, nor distribute the alms collected at the Lord's supper.

The incumbent of the parish has a right without licence to perform divine service in any consecrated building within the parish. Semble, therefore, a licence to the rector from the ordinary, to perform divine service in a chapel, tends to show that the chapel was not consecrated.

Proprietary chapels are anomalies unknown to the constitution, and to the ecclesiastical establishments of the church of England, and can possess no parochial rights. Prima facie all parochial duties are committed to, and imposed upon, the parish incumbent, and all fees and emoluments arising therefrom belong to him; and such rights can only be granted to a chapel, or its officiating minister, by composition with the patron, incumbent and ordinary: quære, whether not also with a compensation to future incumbents.

The performance of baptisms, marriages, and burials, in a chapel existing from time immemorial, might possibly be presumptive evidence of consecration, and of a composition: aliter as to a chapel, the origin of which is ascertained.

Alms, collected in chapels as well as in parish churches during the reading of the offertory, are by the direction of the rubric at the disposal of the incumbent of the parish and the churchwardens thereof, and not of the minister or proprietors of the chapel.

PREROGATIVE COURT OF CANTERBURY.

IN THE GOODS OF MARTHA STEADMAN.-p. 59
(On Motion.)

An administration de bonis non, limited to a certain legacy, granted to the representative of the substituted legatee, without citing the representative of the residuary legatee, resident abroad, but by practice entitled to the general de bonis grant; no claim to this legacy having, since the death (in 1797) of the residuary legatee, (also the executor and legatee for life) been made by his representative.

THE deceased died a spinster; and by her will bequeathed a legacy

as follows: "I give to Frances Coventry £300 three per cents. and after her death to Thomas Coventry, and after his decease to Mrs. Margaret Coventry, his sister, for ever." In 1764, Thomas Coventry, sole executor, and residuary legatee (Frances died in the testatrix's lifetime) took probate, and received the dividends upon the above stock till 1797, when he died. The chain of executorship being now broken, and there being no personal representative to Martha Steadman,

The King's Advocate moved for an administration (with the will annexed, of the goods left unadministered by Mr. Coventry) "limited to the sum of £300 three per cents. and the dividends accruing thereon since the death of the executor in 1797," to be granted to Thomas Darby Coventry, the administrator of Margaret, the substituted legatee in the said sum.

Per Curiam.

In order to reduce this sum of stock into possession, it is necessary to have a personal representative to the original testatrix. The person, by practice entitled to the general de bonis grant, is the representative of the residuary legatee; but he is abroad, in Italy, and is not expected to return for some years. He has no beneficial interest in the £300. Since the death of Thomas Coventry, (in 1797,) the residuary legatee, the executor, and the legatee for life of this sum, no claim has been asserted on behalf of his representative to this £300, and this non-claim, for so many years, strongly confirms that he has no interest therein. The present claimant is the representative of the substituted legatee, who having survived Mrs. Steadman, took a vested interest. Under these circumstances, I think the Court may safely make the grant, without the formality of citing Thomas Coventry's representative.

Motion granted.

IN THE GOODS OF ANNE MIDDLETON.—p. 60.

On Motion.

Administration de bonis non, with a will annexed, granted to a representative interest, entitled to seven twelfths of the residuary estate, without citing those having a direct interest as entitled in distribution.

THE deceased died a widow. By her will she bequeathed the residue of her personal property to her two daughters. One died in the lifetime of the testatrix, who therefore, as to a moiety of the residue, was dead intestate. In November 1823, Mrs. Herbert, the other residuary legatee, took administration with her mother's will annexed; and upon her death, also a widow, her executors, as her representatives in the character of residuary legatee, now applied for an administration de bonis non of Anne Middleton.

The property, about £2500, was in a course of administration under the directions of the Court of Chancery; and in addition to the moiety, as residuary legatee under her mother's will, Mrs. Herbert was entitled to one-sixth of the remainder, in distribution under the intestacy. Of the other persons in distribution, there were only two (the rest being