ated in 1801, in consequence of an accident he then met with in fracturing both his legs, upon which he retired to his house at Ilfracombe, near Mount-Edgecumbe, on the opposite side of Plymouth harbour. During his residence in the dock-yard he had a clandestine connexion with a Mrs. Elizabeth Venton, by whom he had four children, two of them the minors in the present cause, and the remaining two died in their infancy. His regard for these children was unbounded. Upon the death of their mother soon after he retired to Ilfracombe, he received them into his house, superintended their education himself, intending them, as he declared, one for the church, and the other for the navy; had them baptized and registered as if they had been his legitimate child ren, and invariably behaved to them with a degree of fondness and indulgence not often witnessed. He also repeatedly spoke of his intention to leave them his property at his death, and several declarations of this kind were proved down to within a very short time of his death. Upon breaking his leg, he sent for Mr. Bennet Johns, of Plymouth-dock, and gave him instructions for his will, from which the latter prepared a draft, and left it with the deceased; but in consequence of some misunderstanding, they had afterwards no further conferences on the subject. The deceased, however, on the 4th of September, 1801, duly executed this draft in the presence of two witnesses. In February, 1805, he gave instructions to Mr. Foot, of Plymouth-dock, solicitor, for a new will, from which No. 2 was

accordingly prepared in Mr. Foot's office, and left with the deceased, who said he would call and sign it, but never did so down to his death, at which time these two were the only testamentary papers that could be found. It was proved that the words "Cancelled, and another made out,” were of the deceased's handwriting; but from his invariable declarations down to his death of having left his property to his children, the witnesses were convinced that he considered he had an operating will in existence, and for several reasons, which went to account for the non-execution of No. 2, they were further persuaded that in such declarations he alluded to No. 1, and that, with a precipitancy not unusual with him, he must have written the words importing cancellation when contemplating the making of a new will, which he afterwards abandoned, and not with any deliberate intention of cancelling No. 1. absolutely and unconditionally.

Dr. Jenner and Dr. Lushington, in support of No. 1, contended, that the cancellation was conditional: it was dependent on another will being completed, and the deceased did not intend a cancellation, except by completing that new will.

Dr. Swabey, in opposition to the paper, shortly adverted to the circumstances attending it, and the doctrine of revocation contended for on the other side, and then left the case to the candid consideration of the Court.

Sir John Nicholl remarked, that he had no doubt as to the facts of the case, nor as to the law applying to them. There was no question as to the factum

of

of the first instrument. It was valid, and had so continued for many years; but the question was, whether it was cancelled. The learned Judge then alluded to the preparation and purport of the second instrument, and observed that the deceased had in law abandoned that instrument by never executing it, and it was therefore wholly inoperative. He then proceeded to notice the evidence as to the deceased's regard for his children, his behaviour to them, his testamentary declaration in their favour down to the time of his death, and the fact of his having recognized Messrs. Birt and Glencroft as his executors just before that event, from which, the learned Judge observed, it was evident that the deceased had died thinking he had left the bulk of his property to his sons; but then there was written on the back of the perfect instrument the words "cancelled, and another made out." Could it be contended that this was an absolute revocation? If not, the circumstances mentioned should rebut it. It was a mere memorandum, not signed or dated; and the learned Judge expressed his opinion that it had been made merely to remind the deceased himself to cancel the instrument when the new one should be completed, and was entirely dependent on the new act to be done. It was not true in point of fact, for the will was not cancelled, but left perfect, and not defaced. In cases somewhat analogous, where a mere draft or inception of a will is endorsed by the testator as "my will," the Court only considers such an indorsement as a loose VOL. LVIII.

memorandum, and not as supplying the defect of execution, or otherwise giving effect to the paper; so in the present case the indorsement was a mere memorandum, and did not of itself prove that it had been done animo revocandi. Even the tearing off of a seal was not an absolute revocation, but open to explanation; and the same doctrine applied to this case. The deceased had no intention to die intestate, and it was quite clear that this indorsement was not a revocation until the accompanying act in the new will should be completed. It was highly probable, from the paper itself, and the circumstances in evidence, that the indorsement was a mere thoughtless memorandum, without the intention of doing any independent act to invalidate the instrument, and that the deceased was not aware that it could by possibility have any such effect. Under these circumstances the learned Judge said, that he was satisfied, that by pronouncing for the paper No. 1, he was carrying into effect the intention of the deceased, and decreeing probate of the paper which he considered to be his operative will. Probate of No. 1 was decreed accordingly, and the costs of the next of kin were, under these circumstances, directed to be paid out of the estate.

parish of St. George, Hanoversquare, on the 12th of October, 1812, the said Mary Usher, his former wife, being then alive.

Thomas le Gard Grissen, the first witness, deposed, that he was employed in the secretary's office, in the India-house, and now produced the book of the register of marriages in the East Indies.

The Rev. Arnold Burrowes deposed, that he was chaplain to the presidency of Bombay for 42 years. In the year 1794, he knew Miss Mary Usher. He was also acquainted with Captain Harrower. Heard that the latter was paying his addresses to the former, and was applied to for the purpose of performing the marriage ceremony between them. He did not, however, do so; but believed that the Rev. Mr. Owen, the chaplain of Calcutta, then on a visit to Bombay, did marry the parties. Captain Harrower and Miss Usher afterwards passed as man and wife, and witness was invited to an entertainment by Captain Harrower, when Miss Usher presided as his wife. This, however, was not on the occasion of their marriage. Witness never heard of the separation of the parties, until Captain Harrower left India for Europe. Witness. was in the habit of forwarding copies of the registers of marriages at Bombay home to the Indiahouse.

The witness being referred to a copy of a register, signed with his own name, and certifying that he had compared it with the original register of the marriage of Captain Harrower and Miss Mary Usher in February 1794, Mr.

Alley, for the prisoner, objected to the question, but the objection was overruled by the court; and the clerk read from the registerbook, the copy of the marriage, dated the 5th of February, 1794, between George Harrower, free mariner, to Miss Mary Usher, spinster," certified, a true copy of the parish registers of Bombay, between the 14th of February, 1773, and the 8th of November, 1799.-Signed, Arnold Burrowes.

Mr. Alley contended, that the certificate just read was not framed agreeably to the marriage act.

Mr. Justice Abbott said, that the act alluded to did not extend to Bombay.

Mr. Alley now called upon the counsel for the prosecution to prove that the register, of which the one put in professed to be a copy, was drawn up in conformity to the marriage law of Bombay. He argued further, that it should be proved whether the marriage had been celebrated by license or banns.

Mr. Serjeant Best, for the defence, desired the witness, Mr. Burrowes, to read over the entry, and asked whether he had so compared it with the original as to swear to it? Witness would not positively swear to it, but he firmly believed he had compared all the entries to which his signature had been affixed, to be the original registers of marriages.

Re-examined by Mr. Gurney. Witness was in the constant habit of sending home by the East India ships duplicate, triplicate, and quadruplicate copies of the registers of such marriages as took place in Bombay.

Mr. Baron Richards (to the witness)

witness)-Can you undertake to swear whether you compared the present register with the original one sent home in the year 1799? No, I cannot.

Examination continued. Witness saw Mrs. Harrower in the month of November 1813, previous to his leaving India for England. She was then residing at the house of a Mr. Cook, a relation of hers at Bombay. Witness received three letters of Mrs. Harrower's, which were delivered to him by Mr. Cook. These he brought over with him to England, and delivered them to one Giblett, a butcher, whom he understood to be the father of Captain Harrower's last wife. This was in June 1814. Prior to the first examination of Captain Harrower at Bow-street, the latter called upon him, ond requested him not to give evidence against him. The witness told him on that occasion that he had seen his wife at the house of Mr. Cook, previous to his leaving India.

Cross-examined by Serjeant Best.-Witness communicated all his information in July 1814 to Giblett. During the year 1815, he was never called upon to give evidence against Captain Harrower. Witness had heard that Giblett was insolvent. Mrs. Harrower, in India, was a lunatic, at sometimes wild. When he left Bombay, however, she was perfectly quiet, and had no doubt she was the person who was once called Miss Mary Usher.

Lionel Thompson knew Capt. Harrower, and had seen him write frequently. Here the witness was shown aree letters, which he identified as the hand

writing of Captain Harrower.] Witness, about the close of the year 1814, was asked by Captain Harrower to accompany him to Calais, stating his wish to leave the country, as there was a conspiracy against his life, on account of his being married twice; a circumstance which he (Captain H.) declared to be as untrue as Heaven was just. After this assertion he accompanied him to France. When they were walking upon the pier of Calais, witness again put the question to him respecting his first marriage, and asked him if his first wife were really living or no. Captain Harrower, after some hesitation, confessed that she was still alive. Witness then advised him never to return to England, but he had known him to have come to England twice before his apprehension.

Cross-examined by Serj. Best. -Witness was not a creditor under the commission of bankruptcy against Giblett. He had no quarrel with Captain Harrower, but the latter had withdrawn himself from his acquaintance. The communication made to him by Captain Harrower at Calais he made known to several persons soon after his return from that place. He might have known Giblett previous to his going to France. He had frequently called upon Giblett; it might be en passant. Witness admitted he had dined with Giblett years before his daughter was married to Captain Harrower. He did not reveal the conversation he had had with Captain Harrower, when he gave his deposition at Bow-street against him, because he was not asked the question. Witness did $ 2

not