The Sun.
London, England, 1862-07-09 00:00:00

SMI :711URST V. TOMLIN.

Sergeant B 411; ntine applied to the Court that
the costs ineurve C l in the recent hearing of this
cause might c ome out of the estate. He said that
his lordship vtenuti 1 have in recollection the par-
ticulars of this ca se. Dr. Smethurst propounded
the will of Isabelle Bankes, as sole executor. le
question was rais et 1 as to his ability to do so, as he
was charged witl I the murder of the testatrix, and
was afterwards t ri, sd and found guilty of felony.
His lordship held that these charges did not bar his
right to prove th e will. Mr. Tomlin was the
brother-in-law of the deceased, and opposed on be-
half of the next of .kin. Dr. Smethurst must have
•
known that all the , circumstances would be investi-
gated, and coteld not reasonably complain that all
the facts shoulc: be sifted to the bottom. Miss
Louisa Bankes, the s ister of the deceased, gave
‘en her sister and the plain-
tiff. It was not necess, evi-
dencewhich isnubthsiestceadusbee,twart. id spoke to the relationship
try to go further into the
matter ; and the object .'f the present application
was simply to appeal to t, hp discretion of the Court
as to whether, under the cieeteumstances detailed at
the trial, the costs should et of come out of the
,state. One of the pleas was that the will was
0)1 tained by undue influence, and the defendant
might have put upon the record I bat the plaintiff
hadb een indicted for the murder ,of the testatrix,
but, its the Queen's pardon had been granted, it was
thong
advis able not to insert such plea. In a
case of such nportance, and affecting the interests
of the ne. NI of kin, Mr. Tomlin was bound to act as
he had dot 'ie, a nd he would not have done his duty
if he had nt )gle cted to institute an inquiry into the
circumstance 's under which the will was executed
Dr. Phillip tore said the jury found for the will
after a very sl. \ort deliberation, thereby showing' the
opinion they h, e 1 formed of the case. There ,was
no reason why the rule and practice of the Cou rt
lid he was thiof as
opinion that the costs not be fo, llowed in s in other cases.
His lordship s,
of the demurrer s bould come out of the estate. The
same principle di% I not, however, apply to the costs
incurred by the i 'rial. He did not think these
should come out of the estate.
THE U..I.RQUIS OF WE.S. TMEATH V. THE MARCHIONESS OF
iirEsTJAEA TH AND CHAPMAN.
Dr. Spinks moved I hat the decree nisi which had.
been made in this sui, t on the 27th of March last,
for dissolution of man iage, on the ground of the
respondent's adultery w. ith the co-respondent,should
be made absolute.
ance by the respondent or
.. colrletsepreanwdaesntr appeal
The decree was made it.'
bsolute accordingly.
GRANT V. GRANT.
An application had b co.( made in this cause 011
the Ist inst. on behalf o f the executors of the peti-
tioner (deceased) to enable the children to proceed
with the suit by their e;uardiaes. The petitioner
had instituted a suit for dissolution of marriage
against his wife, and a decree nisi had been pro-
nounced. The petitioner having died after the
granting of the de and before the time for
eee ?lim-
its being made absoltete, ti to question raised for the
decision of the Court v,els, whether or no the chil-
dren of the marriage, bei.ne* involved in the conse-
quences of the suit, might 'not proceed in the name
of the executors appointed under the will, or
'ot abated for this pur-
itioner, or whether a
whether or no the suit had
pose by the death of the pet.
decree nisi should be taken as final.
Dr. Phillimore, Q.C.,appeare,d for the executors;
Dr. Veane, Q.C., for the respo nit'ent-
His Lordship, in pronouncing judgment, said
that the application depended entirely upon the
construction that was to be put upon the statutes
regulating the authority of the Court. The 22d
and 23d Victteria gave the Court ceettein powers to
provide for the wife and children by interim order,
or to make perteanent provision upon the decree
being made final. As the authority of the Court
did not arise until ,
the decree absolute shou.:d have
been pronounced the decree absolute only could be
. regarded as final. The suit must therefore be con-
sidered to have abated by the death of the peti-
tioner.

CO UNLRY

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LEEDS—TUESDAY.
There has been much rain since Friday, but to-day is
fine, and as the trade has ceased to be influenced by the
unfavourable weather, millers were enabled to purchase
at a trifle under Frid:ty's rates. Barley nominal. Other
articles without alteration in price.