sum of £1,000 sterling as security for performance of the Order in Council to be made on appeal. The petitioner refused to comply with these terms, and presented a petition to Her Majesty in Council, praying to be allowed to appeal against such sentences, upon giving the usual security for costs of appeal.

Mr. Burge, Q. C., in support of the Petition.

The Court below did not deny our right to appeal, but imposed such conditions for securities as we could not give. The Charter of Justice of the Mauritius (a) gives the subject a right of appeal from the Cour d'Appel, in the island, to the Queen in Council, against any final judgment, sentence or decree of the said Court, or against any rule or order made in any civil suit or action, having the effect of a final or definite sentence when the subject-matter at issue amounts to £1,000. By the same Charter, power is reserved to the Crown upon special petition to admit an appeal upon such terms as Her Majesty may think fit to prescribe. No provision is made in the Charter or Order in Council for an appeal from a sentence á vinculo. Such a sentence was never contemplated. Unless we are admitted under the reservation contained in the Charter empowering the Crown to admit appeals not otherwise provided for, it will operate as a denial of justice. The Courts below may impose such terms as may amount (as in this case) to a refusal. [The Right Hon. Dr. Lushington.-In Cambernon v. Egroignard (b), their lordships held that the Court in the Mauritius was the sole judge of the sufficiency of the security, and that this Court had no jurisdiction in the matter.] That case was a question of succession, and came within the

(a) 13 April 1831. Clark's Col. Law, 569. (b) 1 Knapp, 251.

1843.

HULM

v.

HULM.

1843.

HULM

v.

HULM.

terms of the Charter; and the question there was not as to the amount, but as to the sufficiency of the security; that is, the bail was deemed insufficient. We are willing to give such reasonable security as your lordships may think fit to order.

Lord BROUGHAM:

Their lordships are of opinion that the Charter is sufficiently comprehensive to admit this appeal. The consequence of not allowing this appeal would be, to give the Court below the power to prevent any appeal by fixing an exorbitant amount as security for costs. The petitioner will be let in on terms of giving security for costs below and here.

By an Order in Council made on the petition, it was ordered "that the appeal from the said sentence should be allowed, on lodging in the Council Office the certificate of recognizance to Her Majesty, on a penalty of £300 sterling, to be entered into by some proper person (and approved by the Clerk in Council) before one of the Barons of the Exchequer, conditional to stand and abide such determination as might be made and awarded in the said appeal, as well as the costs thereof."

The mere cir

cumstance of having called in two wit

the deceased

THIS was originally a cause of proving, in solemn 21st February form, a holograph instrument made by the Rev. Henry Masterman, deceased, purporting and intended to be his last Will and Testament. The paper was signed by him, and attested by three witnesses; the attestation clause being in these words, "Signed, sealed and delivered in the presence of us, Samuel Hopkins, Henry Eaton, and John Chaffy, the 8th of September 1841." It contained various bequests, and appointed the Appellant, James Ilott, and Thomas Balston, exe

cutors.

Upon inspection of the paper, it presented the appearance of the signature of the deceased, and the date on which the execution took place having been written with different ink from the body of the Will, and in

Lord

(Lord

* Present: The Lord Chancellor (Lord Lyndhurst), Brougham, the Lord Chief Justice of the Queen's Bench Denman), the Lord Chief Baron of the Exchequer (Lord Abinger), Lord Campbell, Mr. Baron Parke, the Vice-Chancellor Knight Bruce, and the Right Hon. Dr. Lushington.

nesses "to sign a paper for him," (which

they did in his presence,) but explanation

without any

of the nature

of the instru

ment being made to them,

or the witnesses being

able to see if

any signature or writing was upon it

when they attested it:

Held by the

Judicial Com

mittee of the Privy Council, affirming the judgment of the Prerogative Court not

to amount to an acknowledgment of the signature by the deceased, so as to satisfy the provisions of 1 Vic., c. 26, sec. 9, and Probate refused to such paper.

1844.

ILOTT

v.

GENGE.

serted after the Will was written and as the attestation clause did not show upon the face of it that the provisions of 1 Vic., c. 26, s. 9, had been sufficiently complied with, the subscribing witnesses were applied to, to make an affidavit in the form required by the practice of the Prerogative Court, to supply this defect; they declined, however, to make such affidavit, whereupon a caveat having been entered, the paper was propounded in solemn form by the Appellant, as an executor named therein, and opposed by the Respondent, Mrs. Genge, whose interest, as the lawful second cousin, and next of kin of the deceased, in case he had died intestate, was admitted.

The first article of the allegation pleaded that on the 8th day of September the deceased, at about four o'clock in the afternoon, called on Samuel Hopkins, the parish clerk of Milton Abbas, who was at work in his shop, with Henry Eaton, his son-in-law, and said, 'I want to hinder you two for a short time, to come to my house to sign a paper for me," or to that very effect; upon which the said Samuel Hopkins said, "We will come immediately." That the deceased then left, and went to his own house. That Hopkins and Eaton shortly afterwards went to the deceased's house, and found him standing at his writing desk, which was so placed on a small table near the wall that his back was turned towards them as they entered the room. That on their entering the room, the deceased turned round and said, "Well, Mr. Hopkins, you are come: I want you to sign this paper for me." The deceased then turned round again to his writing desk, and still standing up, did something with the paper, and it appeared to them, from his attitude and manner, that he was writing upon it. That after

a short interval, during which the deceased was so employed, he moved the paper from the desk, and put it on the table on which the desk was standing, and said, pointing with his finger to the bottom thereof, 'Sign your names here." That Hopkins then took the pen, which was in the ink bottle, and which apparently the deceased had been just using, and signed his name in the deceased's presence, and in the presence of the said Eaton, and Eaton also signed his name in the presence of Hopkins and of the deceased; but that the upper part of the said paper was so folded or turned down as to conceal the writing on the concluding part thereof, so that Hopkins and Eaton could not see whether or no there was any signature or seal to it. That the deceased, on the same afternoon, called on John Chaffey at the School House, and requested him to put his name to the paper, under those of Hopkins and Eaton, which he accordingly did; that the said paper was again so folded or turned down, as to conceal the writing on the concluding part thereof, but neither Hopkins nor Eaton were present when this third person signed.

The second article pleaded the handwriting.

The depositions of the subscribing witnesses were taken, and they were also examined upon Interrogatories. Hopkins, in his deposition respecting the signing of the paper by the deceased, stated that when he and the other witness, Eaton, went into the room, "The deceased was standing at a table on which was a little desk, his back to us, directly opposite the door at which we entered. He was doing something to a paper which was before him, for I could see a portion of it. I think he was folding it. It was at that table and desk that he did all his writings, as far as I

1844.

ILOTT

V.

GENGE.