Marriot v Marriot. in Scaccario

[666] browning vers. newman. At Guildhall coram Raymond C. J. de B. R. Case for words by which he lost the custom of J. S. and several others ; the plaintiff shall only be admitted to prove the loss of J. S.'s custom particularly. This was an action upon the case for these words; " You are a thief, and I will prove you so." The plaintiff declared that by reason of the defendant's speaking them, one John Merry and divers others, who were his customers, left off dealing with him in his trade. Upon the trial the plaintiff proved the speaking the words, and the special damage as to Merry; and would have gone on to prove by several others, that had likewise left off dealing with him by reason of the defendant's speaking these words. But the defendant opposed this; because (as he insisted) he could not be supposed to be prepared to answer such uncertain kind of evidence. The Chief Justice said, that in actions for words which are not in themselves actionable, and where the special damage is the git of the action, this sort of evidence is allowed, though the particular instances of such damages are not specified in the declaration : but in actions for words which are themselves actionable, (as the present words are) particular instances of special damage shall not be given in evidence, unless particularized in the declaration. And therefore he thought the plaintiff could not be allowed to give particular instances of the loss of any other customer, except Merry. He said that he had known it ruled otherwise; but that this was his K. B. xxii.-25 770 MICHAELMAS TERM, 12 GEO. 1 STRANOB, 667. opinion: however he admitted the plaintiff to give general evidence of the loss of customers (1). (1) That modern practice does not warrant this distinction, vide Bull. L. N. P. 7.

marriot vers. marriot. in scaccario. After probate of the will a Court of Equity may inquire into the fairness of a residuary devise of personal estate. Marriotj Master of the Exchequer of Pleas, made his will, and left his wife executrix and residuary legatee. His sons were plaintiffs in this case, and contended, that this devise of the residuum was gotten by fraudulent means, and by surprize. The wife produced the probate of the will; and the counsel in behalf of the wife the defendant contended, that the [667] probate of the will was conclusive evidence touching this disposition of the residuum, and that a Court of Equity could not look into the same, but that it was merely of ecclesiastical jurisdiction, and to be determined there. And in this question four things were considered by the Court. First, how the jurisdiction of testamentary matters stood by the civil law. The way of authenticating wills in the civil law waa first before the praetor, and afterwards before the magister census, for they reckoned wills to be in the nature of judgments or decisions that a man himself made touching his estate. And therefore they were shut up with the magistrate during the life of the person, for the quiet and repose of the family, but were opened after his decease. They were signed by the testator, and sealed by him, and by the witnesses, upon a thread, and carried in to the praetor: after the death of the party the witnesses were called if living, to acknowledge their seals; if they were not living, then the seals were broke, and the will opened, in the presence of other sufficient witnesses; and the will was registered, and a copy of it delivered over to any person that would ask for the same. For it was reckoned as a matter of record, and therefore any person might have access to it. For this see Digest, lib. 28, tit. 1, Qui testamenta facere possunt, et quemadmodum testamenta fiant: and Cod. lib. 6, tit. 32, Quemadmodum testamenta aperiantur, &c. When any legacy was disposed of to pious uses for the use of the Church, or for monasteries, or for the poor, the bishops were to sue for the same, and see to the administration thereof. This appears by the Code, lib. 1, tit. 3, leg. 42, 6, Neces-sarium 7, 8, and 9. Upon this the bishop began to intermeddle with the probate of wills, which was a temporal authority. But this Justinian would nob endure, and therefore in his Code he puts the law against the bishop's probate of wills before the laws herein before mentioned: and it is afterwards said, eodem tit. leg. 41, Repetita proraulga-tione, non solum judices quorumlibet tribunalium, verum etiam defensores ecclesiarum hujus aim sb urbis, quos turpissimum insinuandi ultimas deficientium voluntates genus irrepserat, prsemonendos esse censemus, ne rem attingant, quae nemini prorsus omnium, secundum constitutionum praecepta, prasterquam magistro census, competit; absurdum etenim clericis est, immo etiam opprobriosum, si peritos se velint [ostendere] discepta-tionum esae forensium: temeratoribus hujus sauctionis poena quinquagiuta librarum auri feriendis: datum xm. Kal. Dec. C. P. Justiniano A. II. et Opiliano Coss. DXxriir. Thus things stood by the civil law. [688] We come now, in the second place, to consider how things stood by the canon law. The Popes, as their power increased, endeavoured to get the juriadiction over testaments; and this appears by the Decretal, lib. 3, tit. 26, c. 6, Si hseredes jussa testatoria non adimpleverint, ab episcopo loci illius omnis res qusa eis relicta est canonice interdicatur, cum fructibus et caeteris emoluments, ut vota defuncti adim-pleantur. And likewise Decret. lib. 3, tit 26, De Testamentis, c. 17, Tua nobis fraternitas intimavit, quod nonnulli tarn religiosi quam clerici seculares, aut laici, pecuniam et alia bona quaa per manus eorum ex testamentis decedentium debent in usus pios expendi, non dubitant aliis usibus applicare; cum igitur in omnibus piis voluntatibus sit per locorum episcopos providendum, ut secundum defuncti voluntatem universa procedant, licet etiam a testaboribus id contingeret interdici: mandamus 1STKANGE,869. MICHAELMAS TERM, 12 GEO. 771 quatenus executores testamentorum hujusmodi, ut bona ipsa fideliter et plenarie in uaua praedictoa expendant, monitione prsemissa, corapellas. Pope Innocent the Fourth upon this law, fol. 152, says, that the bishop may dispense this charity, if there be no executor appointed by the will, and if there be au executor and he does not fulfil the will, that then he may take it to himself. Decret. lib. 3, De Testamentis, tit. 26, c. 19, Johannes elericus et P. laicus executores ultimee voluntatis O. clerici sanctaB crucis, qui venerabilibus et piis locis de bonis suis in ultima voluntate legavit, mandans insuper satisfieri creditoribus per eosdem, post mandatum susceptum per dioecesanum cogi debent testatoris explore ultimam volun-tatem. Vide Innocent in Legem 153. Panormitan upon the law, si hseredes, says, that this matter of will, even where the devise is to pious uses, is mixti fori, and that the heir or executor is to have a year's time to fulfil the will, before he can be compelled to it by ecclesiastical censure. Upon the law, tua nobis, Panormitan says, that the bishop ia to compel by ecclesiastieal censure the executor to perform the will to pious uses, although the will itself says, that the bishop was not to intermeddle: for they look upon that as an irrational part of the deviae, which is in itself void. The last chapter, verbo Johannes; the case as Panormitan states it was, where after debts paid the residue was left to pious uses, and there the bishop was to compel the payment of debts, and afterwards to see the disposition of the residuum. I do not find that any of the canonists pretend, that wills are of ecclesiastical cognizance sua natura, but only such wills as were made for pious uses. [669] Lyndwood, fo. 174, verbo approbatis says, that jurisdiction of the Ecclesiastical Courts touching testamentary matters is by the custom of England, and not by the ecclesiastical law. We are thirdly to consider upon what foot the ecclesiastical jurisdiction stood by the law of England. In England the bishop and sheriff sat together...