further notice will be taken of it. The learned Judge left it to the jury to say, whether the testator did revoke the will. The jury found a verdict for the plaintiff. In the ensuing term

J. Evans obtained a rule nisi to enter a verdict for the defendant, or for a new trial; against which, cause was shewn in last term by

Chilton and W. M. James.-The Court have certainly decided, in the former cause between these parties, that the will was not revoked by burning, within the meaning of the Statute of Frauds. But, as the present ejectment is brought to recover copy hold lands, which are not affected by that statute-Tuffnell v. Page (2), Doe v. Danvers (3), Vawser v. Jeffery, (4), Mortimer v. West (5), nor by the Statute of Wills, 32 Hen. 8. c. 1, Reyden v. Maltster (6), Carey v. Askew (7),—the Court must now determine, whether, under the circumstances of this case, there has not been a revocation of the will at common law. It is submitted that there has. There is no distinction at common law between a revocation of a will of personalty and of realty; and the facts of this case would clearly amount to a revocation of a will of personalty. A case has lately been decided by Sir H. Jenner, where a testatrix made a will in writing, and kept it with a friend at Bath. Being in Edinburgh, she desired a friend to write a letter to Bath, directing that will to be destroyed. The letter was written and sent, but the testatrix, not having expressed any wish to recall her directions, died before the will was destroyed. It was held, that this constituted a revocation -Walcott v. Aughterlony (8). Here, not merely a direction took place, but an act was done by the testator. In Roll. Abr.

Devise,' (O), instances are given of revocations by mere acts, as by the subsequent devise of the same property to a party incapable of taking it. It is found that a man threw his will on the fire, and the jury have also found that he did so with the intention of revoking it.

(2) 2 Atk. 37.

(3) 7 East, 299.

(4) 3 B. & Ald. 468. (5) 2 Sim. 274.

(6) 2 Roll. Rep. 383. (7) 3 Bro. C.C. 59. (8) Not reported.

[PATTESON, J.-Is there any case where it has been held, that a will is revoked by an act only, unaccompanied by words.] The case cited from Rolle is such a one. [PATTESON, J.-There were there two inconsistent writings.]

It cannot be necessary to have an express declaration. Suppose a testator threw his will into the river, surely it would be held that he had revoked it, though it might not be possible to prove that he uttered any words.

[PATTESON, J.-That would be a destruction of the will, though it might not be a revocation. I want to know if there is any case in which it has been held that there has been a revocation without some declaration, where the instrument has not been destroyed.]

In Roll. Abr. 'Devise,' (O), pl. 1, there is the case of a man saying, in the presence of certain persons, that he revoked his will, and would alter it when he came to D, and before he arrived there he was murdered, and it was held that his will was revoked. It is laid down in 2 Shep. Touch. 410, that a revocation of a testament "is sometimes expressed, and sometimes it is implied; for it is a rule, that any act or thing done, or words spoken by the testator after the testament made, or that doth alter or cross all or part of his testament made before, is a revocation of it, or of that part;" and in p. 412, that "a good testament may be made void by the declaration of the testator's mind, as, if a man have two testaments lying by him, the one made after the other, and they are both shewed or delivered to the testator while he lieth sick, and he, by word or sign, declare that he will have the former to stand, this declaration doth revoke the latter, and affirm the former."

Maule, J. Evans, and E. V. Williams, in support of the rule.-The question substantially submitted to the jury was, whether the testator had revoked his will by burning it. Now, although copyholds are not within the Statute of Frauds, still Doe d. Reed v. Harris is an authority to shew that this will was not burnt; the opinion of the Court being, that there was an incomplete act only; see also Doe v. Perkes (9). It is contended, on the other side (9) 3 B. & Ald. 489.

that the mere intention to revoke will operate as a revocation: that cannot be; it must be accompanied with some complete act of revocation. All the evidence in the case consisted of expressions of the testator's intention to alter or revoke the will, and this incomplete act of burning; but he never declared an actual revocation. In the case cited from Rolle, the testator called on the persons to attest his then revocation; it is, therefore, clearly distinguishable; and in all the cases the distinction is taken between words of present and those of future intention. The former operate as a revocation, but not the latter -Cranvell v. Sanders (10).

[PATTESON, J.-In Burton v. Gowell (11) the Court held, that if a testator say, "I will revoke my will," it is no revocation, whereas, if he say, "it shall not stand," it is.]

Evans v. Elliott (12) also shews that a declaration of an intention to revoke will not operate as a revocation.

[PATTESON, J.-What do you say to the class of cases where a will was held to be

revoked by imperfect conveyances?]

They are considered to import a present intention to revoke, which is executed by the testator's attempting to pass away the subject-matter of the demise-1 Wms. Saund. 278, a. Assuming, however, that there was a revocation in this case, the evidence shews that there was a republication. It appears that the testator was aware that the will had not been destroyed, but had been preserved by the defendant; and though he had talked about making another will, he did not do so, neither did he attempt again to destroy it. Now, as this is not within the Statute of Frauds for the purpose of a revocation, so also it is not within it for the purpose of republication; and therefore a republication may be inferred-Brotherton v. Hellier (13) and Slade v. Friend (14).

[PATTESON, J.-It is not shewn that the testator ever subsequently recognized this as his will.]

And now the judgment of the Court was delivered by

LORD DENMAN, C.J.-This was an ejectment for copyhold premises by the heirat-law of the person last seised, against one who claimed as that person's devisee. The plaintiff succeeded at the trial, but leave was given to the defendant to move for a nonsuit, or a verdict in her favour. On discussing a rule granted in conformity to this permission, the question was, whether the will admitted to have been duly executed had been well revoked. The facts lie in a very narrow compass; the testator was much under the influence of Harris, who lived with him as housekeeper; but, according to the testimony of a witness, to whom the jury gave credit, he had frequent quarrels with her, often complained of her behaviour towards him, and on one occasion, when irritated, he threw the will on the fire; she rescued it, at which he expressed his displeasure; the paper in which it was wrapped was partially burnt, the will itself was not affected by the fire, and Harris kept it until after the testator's death. These circumstances being established in evidence, the learned Judge asked the jury, whether what was then done by the testator was an actual revocation of the will, and so intended by him. In another case, tried between the same parties, the same question had arisen, and on the same facts the Court was of opinion that the will was not revoked. That ejectment, however, was brought to recover the freehold lands, and our decision proceeded wholly on the express enactment of the Statute of Frauds, the words of which I do not here repeat. Here the will itself was not burnt; we therefore thought that the statute prevented it from being revoked, and that no evidence whatever of what was said, proving an intention to revoke, could supply that deficiency. But the property now in question being copyhold, to which the Statute of Frauds does not apply, because it is not devisable within the Statute of Wills, the point is different, and must be treated as if the first-mentioned act had never passed: in that case the law would have required clear evidence of a positive revocation of the will of the intent to revoke at the time

such declaration was made; and the jury would have had to determine whether, in fact, such a declaration was made, or such act done. Some doubt has been entertained, whether some declaration is not necessary, and whether any declaration would be sufficient without the use of the word "revoke." Upon full consideration, we think it impossible so to limit the testator's power of revocation. Many equivalent words and expressions may be easily imagined, and we cannot bring ourselves to say, that proof of any of them would not be sufficient for that purpose. But further, we are now required to consider whether, without any language at all, a testator may revoke a will by the conduct he exhibits; and this appears to be tantamount to an inquiry, whether conduct can give a positive declaration of intention. If it can, there can be no more necessity for words, than for the use of a particular expression. Now, nothing is easier than to imagine such gestures and proceedings connected with the will, as must fully convince every rational mind, that the testator intended to revoke his will, and thought he had done so by the means which he took for that purpose; but if he who has power to revoke by declaring a present resolution then to do so, does in fact make the resolution manifest, it seems clear that the act of revocation is completed in every essential part. This proposition is not inconsistent with any authority in our books. Whatever doubt may rest on it, may probably be the result of our habit of considering the subject since the Statute of Frauds. That law, on the wisest principles, although far from being complete in its detail, or fortunate in its execution, enacts certain formalities for giving effect to the revocation of a will, and the obvious good sense of that provision has, in some way, embodied itself with our ideas of revocation. But the law, with respect to wills not within that statute, is the same as it was before the statute. This use was made of our former decision between the same parties; the will was intended to be revoked by burning, but the burning was not completed, and the will was held not to be revoked. It was said to follow, as the revoking act was not performed, that there could be no revocation. But this is

another fallacy arising from a misapplication of the Statute of Frauds. The burning, in the present case, is not the act of revocation, but it is only one of the facts by which the intention to revoke is manifest. When a positive law requires burning, there cannot be burning to a certain extent; when the law only requires evidence of intention, that evidence may be found in an imperfect act, or a mere attempt. The duty then of a Judge, in trying a question as to the revocation of a will at common law, was to lay before the jury the facts proved, and ask, whether they amounted to a revocation; and this, in truth, was done on the present occasion. There was certainly evidence from which the inference might be drawn, and by which we think it was warranted. On this point, then, there is no ground for a new trial; but the jury have found in the terms in which the learned Judge submitted the question to them, whether what was then said and done by the testator was an actual revocation of the will, and was so intended by him. That question they have answered in the affirmative. There was one other argument which requires notice. The testator was aware that his devisee had taken the will off the fire, and expressed his annoyance that she had recovered possession of it, and his intention to make a new will instead of it; yet he took no further steps towards such destruction, or making a new will; he was therefore said to acquiesce in its continuance, and the revocation itself was said to be revoked and the will revived. This state of things may exist, and if there was evidence of it, such evidence ought to have been submitted to the jury. We cannot think the mere knowledge of the continuing existence in specie of a will intended to be destroyed, when accompanied with no wish to restore its efficacy, does constitute such evidence. The recent act for amending the law of wills, will probably prevent any future application of such a case as the present. The 3rd section makes all property devisable, and the 20th and 22nd sections describe the mode of revoking, and the way the revocation should take place. In this case, therefore, the rule will be discharged.

Rule discharged.

1838.

THE QUEEN v. THE CORPORA-
TION OF LEEDS.

Jan. 31. S
Municipal Corporation-Election.

Previous to the annual election of councillors, the mayor of a municipal borough published, with the approbation of the aldermen and assessors of the wards, a notice, stating that there were two vacancies in one of the wards, one being the general vacancy, the other a presumed extraordinary vacancy, directing the electors to elect two councillors, and pointing out the proper polling booths. The election proceeded accordingly, and two candidates had the majority of joint votes, but a third had the majority of single votes. There was, in fact, no extraordinary vacancy::-Held, that the election was not void, but the third candidate was duly elected.

This was a rule for a mandamus to the town council of Leeds, calling upon them to admit Charles Wood a councillor of the North Ward of the borough of Leeds, under these circumstances. The borough is divided into twelve wards, one of which is called the North Ward, and has three councillors. On the 1st of November 1836, a Mr. Brown was elected a councillor for that ward, and on the 25th of May 1837, he became a bankrupt, by which he ceased to be a councillor, but no notice was taken by the town council, as it ought to have been under the 5 & 6 Will. 4. c. 76. s. 52. The time of service of D. Lupton, one of the councillors of the same ward, expired on the 1st of last November.

The mayor,

with the consent of the aldermen and assessors of the several wards, on the 28th of October issued and circulated a large printed notice, which stated the different polling places, and the number of vacancies; among others, the notice stated, that there were two vacancies, namely, Brown and Lupton, and that the election should take place before the aldermen and assessors of that ward. At the election which followed, Watson and Whitehead had 244 joint votes, Watson two single votes, Wood 120, and Watson and Wood two joint votes. Wood claimed to have been duly elected, as there was only one vacancy, contending, that the joint votes were all thrown away. The aldermen and assessors, however, declared Watson and Whitehead to have been

duly elected. They did not qualify, and

now

Sir W. W. Follett (with whom was Neville) moved for a rule for a mandamus to the town council to admit Wood as a councillor, he being the only party duly elected, since the votes given to the other parties had been thrown away. The notice given by the mayor was immaterial, as he was not the presiding officer, and had no authority under the act to give it.

The Attorney General and Baines shewed cause in the first instance, and contended, that this was a void election. No doubt Watson and Whitehead were not duly elected, because there was not a proper extraordinary vacancy, but as the public notice was given by the mayor, with the consent of the aldermen and assessors of all the wards, the electors were misled, and the election altogether failed. Under the 5 & 6 Will. 4. c. 76. ss. 32, 43, the election is to take place before the mayor and assessors, or the aldermen and assessors, and in cases of extraordinary vacancies, before the alderman of the ward, on a day to be fixed by the mayor. The latter, therefore, was not wholly unwarranted in issuing the notice which pointed out the times and the places when and where the elections in the different wards were to take place. Therefore the electors were deceived by a notice issued by due authority.

Sir W. W. Follett, in reply, urged, that there was no authority whatever to warrant the mayor in issuing the notice.

[LITTLEDALE, J.-There is this difficulty-it does not appear that the alderman of this ward gave notice of the polling booths where the electors were to poll.]

That omission would not vitiate the election, because the electors did all vote, and it is not shewn that anything inconvenient occurred in consequence of that omission.

Per Curiam.-This case is very clear from doubt. It is conceded that the two persons are not duly elected, but that the votes given for them were thrown away. But it is said, that because there was a mistake of the mayor, Mr. Wood has not been elected. An election, however, did take place, and no receivable votes were given for any one but for him.

Rule absolute.

Prohibition-Pleading-Church RateExempt Chapel-Church-building Acts.

The plaintiff, in prohibition, complained of a church rate laid on three only out of four townships, composing the parish of W. The defendant claimed exemption for the fourth township, H, in a plea alleging, that it had a separate chapel of its own, and stating a custom to perform there all ecclesiastical rites, and to repair it by rates levied exclusively upon the township, and traversing the liability of all four to repair the parish church; and there was issue thereon. On the trial, the plaintiff proved merely that H. was within the parish of W. The defendant proved that there was a separate chapel in H, where the ecclesiastical rites were administered, and contended, that he was not bound to prove more facts upon these pleadings: Held, that the plaintiff had not admitted the facts stated in the inducement, and that the traverse was not immaterial; therefore a verdict for the defendant was set aside, and a new trial was granted.

A township had an immemorial separate chapel of its own, where the inhabitants had been accustomed to perform all ecclesiastical rites, and to repair by rates levied on its own inhabitants; and they never had been rated to repair the parish church. On proof of these facts, which were set out on a plea, which also averred, that the township was exempt from the repairs of the parish church, the jury found a verdict for the defendants: -Held, that the plaintiff was not entitled to judgment non obstante veredicto, but that, after this verdict, it might be presumed that the chapel was coeval with and not in aid or ease of the parish church, and therefore exempt.

Where a chapel has been built under the 58 Geo. 3. c. 45. and the 3 Geo. 4. c. 72, and there is no provision by any local act respecting the repairs thereof, it must be repaired by the place in which it was built, and those places only are to be called upon to pay the rates which were previously liable to be assessed to the repairs of the church or chapel of that place. Therefore, where a NEW SERIES, VII.—Q.B.

township was previously exempt from the repairs of the parish church, it was held not to be liable to be rated for the repairs of chapels built under those statutes within the parish, but out of the township.

Prohibition. The declaration stated, that whereas the parish of Wakefield, in the county and diocese of York, had immemorially been an ancient parish, with a parish church belonging to it, and hath been divided into certain townships, viz. Wakefield, Stanley cum Wrenthorpe, Alverthorpe cum Thornes, and Horbury, and the inhabitants of the said townships have been liable to contribute to the repairs of the parish church; and whereas, since the 3 Geo. 4. c. 72. three chapels have been erected and built within the parish of Wakefield, by virtue of the said act and other acts of parliament, then in force for building additional churches in populous parishes, viz. one chapel in Stanley, appropriated to an ecclesiastical district, ascertained and marked out under the said acts of parliament; another chapel in Alverthorpe also appropriated; and another in Thornes not appropriated; and that by the said acts, and by the law of the land, the repairs of the said district chapels of Stanley and Alverthorpe ought to be made by the said parish at large, or by the districts to which they belonged, by rates to be raised within the districts respectively, and the repairs of the said chapel in Thornes by the parish at large; and whereas, in the vestry of the said parish church, on the 11th of August 1831, the churchwardens and the inhabitants of the said parish, or the major part of them, made a rate upon the parishioners inhabitants of the said parish, for certain repairs of the said parish church, by which rate the parishioners inhabitants of the township of Horbury, were not rated to the repairs of the said church, and the parishioners inhabitants of the said townships of Wakefield, Stanley cum Wrenthorpe, and Alverthorpe cum Thornes, only, by the said rate were rated to the said repairs, excluding Horbury and the parishioners inhabitants thereof from contribution to the rate for the said repairs; and the said plaintiff, before and at the time of the making of the said rate, and thence hitherto has been,

M