which the deceased destroyed, but the weight of the evidence inclined the Court to think it was on a separate paper. This instrument was clearly proved to have been destroyed by the deceased, who then became intestate as to his real estate. The Mortimers were excluded, and the new executors were all revoked. The subsequent acts of the deceased, in regard to his property and relations, and his declarations, required to be rather accurately examined. Towards the end of 1822 he purchased the Fonthill estate for 300,000l., which remained in his possession till 1825. In 1823 and 1824 he purchased other estates, mortgages, and assign ments of mortgage. The purchase of the Fonthill estate was intrusted to the agency of Mr. Phillips, who, to secure the performance of the agreement concluded with Mr. Farquhar, procured from the latter an instrument in the form of a memorandum, to this effect: "1823. I do hereby direct this agreement to be carried into effect, and performed by my executors, in any will already named or to be named, as effectually as if I lived, and that this be considered a codicil to my last will, already made or to be made." This was not addressed to any executor by name, and it did not bear materially on the case. The deceased became displeased with Mr. Phillips, and removed him from the agency of the estate in 1824; suits arose between them in law and equity, which were unsettled at his death. The management of the Fonthill concern then devolved upon Mr. George Mortimer, in whom the deceased reposed great confidence, and to whom, it appeared from the exhibits in the cause, he gave large credit with his

him some

bankers. He also gave land at Fonthill for the erection of a manufactory of woollens. There were many letters addressed by the deceased to Mr. and Mrs. Mortimer, written in an unreserved manner, and confidential. On the death of the deceased taking place, his friend and his confidential solicitor, Messrs. Colvin and Drake, were sent for: they came and sealed up the repositories, and next day searched them carefully in the presence of Mr. Fraser; but no will was found. The deceased's keys were in the place, where he usually placed them. He was accustomed to tie up the two most important keys in two separate corners of a handkerchief, which he placed under his pillow; and they were found there at the time of his death. The only paper found, which was in any degree of a testamentary kind, was an envelope which had contained a will or copy of a will. Four witnesses spoke to the finding of this paper, but the circumstances they deposed to differed. It seemed to have been found in a drawer, not in the iron chest, of which the deceased was so particularly careful. This paper, accidentally, was not preserved, nor did it appear to be of much consequence how it was endorsed: for whether it was the cover of the will from India, or had enclosed the will when delivered to Mr. Bland, or accompanied the will in the iron chest, or any other paper, was not of very great moment. These leading facts admitted of no controversy; the duplicate will was not scen after the year 1822; it was then in the iron chest, of which the deceased had the key; it was not found there, or elsewhere, after his death. On these facts, the Court

had to consider what was the prima facie presumption of law, as to who had destroyed this instrument. The first presumption was, that the deceased had destroyed it himself; and if that presumption was not repelled by the evidence, the legal consequence was clear that the duplicate in India was revoked. This presumption and legal consequence might be rebutted by evidence, but the burthen of proof rested on the party setting up the will. The force of the presumption and burthen of proof, in these cases, differed according to circumstances; but if it were contended that the destruction was not by the deceased, the Court must be convinced by satisfactory proof. It might be established by circumstances, that the deceased did not do the act, or by direct evidence in a different way-as that he destroyed it when of unsound mind, or in error, or through force and fear, sine animo revocandi, or that it had been fraudulently abstracted in his life-time. But under this last supposition, the proof must be still clearer; because here a fresh presumption arose in favour of the party charged, who could be convicted only by facts leading to a certain conclusion of his guilt. All these presumptions were resolvable into the axioms drawn from the common practice of mankind. People were in the habit of keeping their testamentary papers carefully; and if an instrument was not found, common sense suggested the prima facie conclusion, that the testator destroyed it with the intention to revoke it: and if he destroyed the instrument in his possession, common dictated that he intended to cancel that which was not in his possession. It had been argued that the

sense

burthen of proof lay on the other party, to show that the deceased did destroy it. But this doctrine was new, and the Court could find no authority for it: the 'authority quoted (Swinburne) expressly negatived it. The learned Judge here observed, that he was unwilling, for obvious reasons, to refer to any dictum in this Court, in cases decided within the last twenty-nine years, though as far as he had examined them, he had seen no reason to depart from the doctrine there laid down. The learned Judge then quoted some cases decided by his predecessor, Sir W. Wynn, in which the principles he mentioned were recognized-that, where a will was not found, the prima facie presumption was, that it had been destroyed by the deceased. If, then, the presumption of the evidence established the fact, that the instrument was destroyed by the deceased, the legal consequence followed, that the duplicate was also revoked. This was a point which had been settled in a variety of cases; and there were the opinions of lord Mansfield, lord Erskine, lord Ellenborough, and sir James Mansfield, to that effect. The reason of the rule was obvious: for why should a person destroy a part in his own possession, if he meant the other part to operate? The executor might rebut the presumption that the deceased "destroyed the paper, not by direct evidence merely, but by circumstances producing a strong moral conviction that he had not done so. The executor seemed to have taken this view of the case; for he not only set forth circumstances to show that the deceased did not destroy the paper, but alleged facts, showing a fraudulent spoliation of the will by another person;

and though no direct and specific act was alleged which could be rebutted, it was insinuated insinuated too plainly to be misunderstood, that Mrs. Mortimer was the person who committed the act. This was a serious offence charged against her, and should be supported by pretty clear proof. If proved, there was an end of the case. It was alleged that the deceased, during the latter period of his life, left his keys and papers about, and that Mr. and Mrs. Mortimer had access to his house in town. What did this amount to? A possibility that an act of spoliation might have been committed, but it supplied no proof of its commission, or the least circumstance whence it could be inferred. The insinuation could only be supported on the testimony of Mrs. Hurst, an undertaker and upholsteress, at Storey's-gate, who stated that Mrs. Mortimer had declared that she had destroyed the will. There was no means of contradicting this, as no other person was alleged to have been present. The Court considered it an act of justice to Mrs. Mortimer not to get rid of this evidence on the ground of its inadmissibility. If Mrs. Mortimer had really been guilty of this act of spoliation, it was highly improbable that she should not have thought it improper, or should have made it known to this witness. The whole ground-work of the alleged conversation respecting the administration was fallacious. The witness had applied repeatedly for a loan of money to Mr. Mortimer, who had neglected her applications, and it was hardly likely she would have suppressed such a secret. Not getting pecuniary assistance from Mr. Mortimer, an anonymous letter found its way to Mr. Colvin,

stating that Mrs. Hurst could give some important information respecting Mr. Farquhar's will, and thus it came out. The memory of the witness was, however, not very accurate. She denied facts which her own letters proved. In short, no reliance could be placed on the evidence of this witness; and it was but just to Mrs. Mortimer to state, that not only was this charge not proved, but that she was wholly acquitted of the imputation of having destroyed this will. No proof existing that the will was destroyed by any other than the deceased: the case rested on general statements, intended to show the improbability of the deceased's doing it, and to lead the Court to conclude that it was done by others. The learned Judge then entered upon a long consideration of the probabilities of the deceased's adherence to the will, observing that the dispositions in favour of the Scottish Universities, modo et forma, was not likely to have been adhered to, after the exact inquiries made by the deceased on the spot. On the other hand, the deceased was not destitute of regard for the ties of blood, as appeared from his acts and letters. Observing the conduct of persons in general, and the example set by the rest of the world, the deceased might conclude that such undertakings as the one contemplated by his will were not to be accomplished by an individual, but by the contributions of the many. Besides, the destruction of the codicil might set up the original will as far as the alteration went, but not the parts cancelled and erased. The learned judge then proceeded to show the effects of the destruction of the codicil on the interests of the parties and the main question,

could not direct them to be paid out of the estate. Where an executor propounded a paper under these circumstances, he did it at his own peril, at least at his own risk. There were several facts pleaded which had not been satisfactorily proved, and charges which had not been supported. Great expense had been occasioned, as well as anxiety to the relations. The learned judge did not see the obligation of Mr. Colvin to bring this will before the Court. If he had made inquiry, he must have been satisfied that the deceased had destroyed the will himself; that was his own impression; and he could not be misled by the law, as to the duplicate not being revoked. Therefore, in the Court's judgment, there was no legal or moral obligation to bring it before the Court. In respect to the parties cited, they were under no obligation to appear; and it would be introducing a precedent, attended with bad consequences, if, when an executor was before the Court, propounding a will, unless there was some reason to suppose collusion, legatees should interfere, and take their costs out of the estate. The Court left the several parties to the consideration of the next of kin; it was not at liberty to indulge its liberality at the expense of the next of kin, unless public justice demanded it. The Court, therefore, made no order as

to costs.

LANCASTER, MARCH 21. Prosecution under the Marriage Act.

Thomas Buxton, Mary Ann Buxton, William Webster, Erasmus Webster, and Benjamin Wilde,

were indicted for conspiring to effect a marriage without the due publication of banns.

Mr. Brougham opened the case. Miss Elizabeth Hickson, with whom the pretended marriage had been celebrated, was the daughter of a lady, who, having married again, was now called Wayte, and the grand-niece of a gentleman of very large fortune, Mr. Thomas Wilson, of the firms of Wilson and Co. Warnfordcourt, London, as well as of his brother, Mr. John Wilson, of Stenson, in Derbyshire. The latter had carried on the business of farming to a very considerable extent, and partly by that, and partly by inheritance, had amassed a large fortune; and being unmarried, he had adopted Miss Hickson as his child. Miss Hickson was entitled, in her own right, to a small fortune, about 2,000l.; but had very large expectations from her uncle. Mr. William Webster, the contriver of the plot which had been laid against the peace and the future welfare of Miss Hickson, was a sheriff's officer at Derby; and, at the time of this transaction, was involved in great pecuniary difficulties. His brother, Erasmus Webster, was at one time an attorney at Manchester, but was compelled, by pecuniary difficulties, to leave that place just before the plans of his brother were carried into effect. Benjamin Wilde, the third defendant, had been in the army, in which he attained the rank of captain; but, for several years past, had employed himself in keeping a second-rate publichouse, called the White Lion, in an obscure part of the town of Manchester. Mary Ann Buxton was the youngest sister of the remaining defendant, Thomas Bux