Memoranda
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1108
IN THE COURT OF KING'S BENCH
REPORTS of CASES ARGUED and DETERMINED in the COURT of KING'S BENCH. By JOHN LEYCESTER ADOLPHUS, of the Inner Temple, and THOMAS FLOWER ELLIS, of Lincoln's Inn, Esqrs. Barristers at Law. Vol. I. Containing the Cases of Easter and Trinity Terms, in the Fourth Year of WILLIAM IY. 1834. [1] cases argued and determined in the court of king's bench, and upon writs op error from that court to the exchequer chamber, in easter term, in the fourth year of the keign of william IV. memoranda. During the last vacation His Majesty was pleased, by his letters patent, to grant the dignity of a Baron of the United Kingdom of Great Britain and Ireland to the Eight Honourable Sir Thomas Denman Knight, Chief Justice of the Court of King's Bench, and the heirs male of his body lawfully begotten, by the name, style, and title of Baron Denman of Dovedale in the county of Derby. [2] In the same vacation Mr. Baron Bayley resigned his seat on the Bench of the Court of Exchequer, and was on that occasion created a Baronet of the United Kingdom. He was succeeded, on the 28th day of February, by John Williams Esquire, who was first called to the degree of Serjeant at Law, and gave rings with the motto, " Tutela legum;" and who afterwards received the honour of Knighthood. Sir William Home, in the same vacation, resigned the office of Attorney-General, in which he was succeeded by Sir John Campbell, His Majesty's Solicitor-General. Charles Christopher Pepys Esquire, one of His Majesty's Counsel, succeeded Sir John Campbell in the office of Solicitor-General, and received the honour of Knighthood. Mr. Serjeant Jones, in this vacation, received His Majesty's licence to bear the surname of Atcherley, in pursuance of the will of his late maternal uncle. Early in Easter term Mr. Justice Parke, Mr. Justice Alderson, Mr. Baron Vaughan, and Mr. Baron Williams, resigned their seats in their respective Courts. Mr. Baron Williams was appointed a Judge of His Majesty's Court of King's Bench, Mr. Baron Vaughan a Judge of the Court of Common Pleas, and Mr. Justice Parke and Mr. Justice Alderson Barons of the Court of Exchequer. They took their seats in the several Courts, according to the last-mentioned appointments, on the 29th day of April. [3] in the exchequer chamber. (error from the king's bench.) wright against doe dem. tatham(). 1834. A bill was filed in Chancery against several defendants, whereupon an issue of devisavit vel non was ordered, in which (a) The eases argued and decided in the Exchequer Chamber, on writs of error upon judgments of the Court of King's Bench, will in future be published in these reports. 1108 1AD.&E.4 WEIGHT V. TATHAM 1109 the defendants in Chancery were plaintiffs, and the plaintiff in Chancery defendant, respecting a will of M., mentioned in the proceedings, devising real property! The issue was found in the affirmative, and the bill dismissed. At the trial of the issue, one of the three attesting witnesses to the will swore to its execution. The plaintiff in Chancery afterwards brought ejectment on his own demise, as heir at law of M., against one of the defendants, who claimed, as devisee of M., for the premises which had been the subject of the issue. After the action of ejectment was commenced, judgment was entered up on the issue from Chancery, in the Court of Law in which it had been tried. An order of Court was made in the action of ejectment, that the short-hand writer's and Judge's notes of the evidence of such witnesses on the trial of the issue, as should be dead before the trial of the ejectment, should be read at the latter trial. On the trial of the ejectment, the defendant gave evidence of these several proceedings, and proved the former testimony of the above-mentioned witness, who was dead, from the short-hand writer's notes; and he produced a will, which was identified with that proved on the trial of the issue out of Chancery: Held, that this was sufficient proof of the execution of the will, though another attesting witness was present at the trial of the ejectment; but that without proof of the evidence of the deceased witness, such proceedings would not have been proof of the execution. A question having arisen as to the sanity of the devisor, letters were tendered in evidence, which had been found among his papers shortly after his death, written to him by persons of his acquaintance, of whom all but one were dead'; one of the letters purporting to be an answer to a letter written by the devisor.' Quaere, whether such letters were admissible, as shewing that the devisor was treated by his acquaintance as a person of sound mind. [For previous proceedings see 2 Euss. & M. 1: for subsequent proceedings see 7 Ad. & E. 313, 331; 5 Cl. &F. 670.] The defendant in error declared in ejectment against the plaintiff in error in the Court of King's Bench. At the trial before Guruey B., at the Lancaster Spring Assizes, 1833, the jury found a verdict for the plaintiff below, and the counsel for the defend ant below tendered a bill of exceptions. By the bill of exceptions it appeared, that the plaintiff below claimed as heir at law of John Marsden deceased, who was admitted to have died seised, leaving the plaintiff below his heir at law; but Wright claimed [4] under a will of Marsden. It appeared further, that the counsel for the defendant below were allowed to state and prove their case first. The first exception stated, that at the trial it became a matter in issue between the parties, whether or not Marsden had been, from his attaining to competent age, and down to the time of executing the will, a person of sane mind and memory,' and capable of making a will. Shortly after Marsden's death, there were found among his papers several letters appearing to be addressed to him by different individuals and one of them purporting to be an answer to a letter received by the writer from Marsden. The hand-writing of these letters was proved; and it was proved that all the writers, except one, were dead, and had been in habits of acquaintance, more or less intimate, with Marsden. These letters being offered at the trial to prove the affirmative of the above issue, and being objected to as inadmissible, " the said Baron stated his opinion to be that the said letters respectively, and each of them, were and was not by law admissible as evidence, arid refused to admit the same respectively as such. Whereupon the counsel for the said defendant made his several and respective exceptions to the said opinions of the said Baron." The second exception stated, that at the trial it further became a matter in issue between the parties, whether or not Marsden devised the premises mentioned in the declaration, so as to bar the title of the lessor of the plaintiff below. The counsel for the defendant below proved that the lessor of the plaintiff had filed a bill in Chancery against the defendant below and three other persons, in respect of the said premises, praying that a will therein mentioned, relating to the same pre-[5]-mises, purporting to be a will of John Marsden, might be set aside. It was proved, that the defendants in Chancery having, in their answer, set forth the last-mentioned will, the Master of the Rolls thereupon ordered an issue of devisavit vel rion, in which the defendants in 1110 WEIGHT V. TATHAM 1 AD. & E. 6. Chancery (including the defendant below) should be plaintiffs, and the plaintiff in Chancery (the lessor of the plaintiff below) should be defendant. The counsel for the defendant below produced the Nisi Prius record in the Court of King's Bench, of the trial of the issue, with the postea indorsed, whereby it appeared that the jury found that Marsden did devise, &e., in the words of the issue. The counsel for the defendant below further proved, that the will which had been in question on the trial of the issue was a will which he then tendered in evidence, and that one Giles Bleasdale, a subscribing witness to it, had sworn to the execution of it at the trial of the issue, and had since died. It appeared, on cross-examination of one of the witnesses produced by the defendant below, that Proctor, another subscribing witness to the will, was still alive, and was then present in Court under a subpoena, as a witness on behalf of the defendant below. The counsel for the defendant below further proved, that the Master of the Rolls by a decree...
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