precedent. Now could there be the least doubt that the testator meant that if Lord Alford, dying in the lifetime of his father, had not at his death obtained the required dukedom or marquisate, Lord Alford's son at his death should not have, and Lord Brownlow's next should have, the estate? To say that such a proviso shall operate as a condition subsequent, if it were, in the nature of things, a condition precedent, seemed to him confounding that which was the subject-matter of intention, and that which was not, and could not be, the subject-matter of intention at all. When the Courts have seen, or thought they saw, an intention in the testator which would be defeated by the use of the words in the way he had used them, they have got over the use of words to carry into effect the supposed intention. In this case nobody could doubt what the intention of the testator was; and if it was a lawful intention, it would be defeated by the course which their Lordships were about to take. If he was right in thinking that the condition in this case was a condition precedent, the other question substantially did not arise. He had stated his grounds for thinking that there was nothing in the nature of the proviso which that House or any court of law could deal with as being void upon grounds of public policy.

He

should not repeat those reasons. The question of public policy was one always difficult to deal with. He thought it would be a very dangerous thing now to say, in deciding on a question of perpetuity, that they should extend or narrow the period until practical inconvenience was felt. He wished their Lordships had had to decide the

Thellusson case, for he protested that whatever practical inconvenience arose on grounds of public policy as applicable to the proviso here, he thought that policy was thwarted in a tenfold degree by Thellusson's will. The Court said there was nothing in law to prevent it; but that it was contrary to public policy was proved by the fact in the very next year. The Legislature interfered to prevent anything of the sort happening in future. He had come, it appeared from the opinion of the noble and learned Lord, to a wrong conclusion, though he was supported in that conclusion by the great majority of the Judges, who also differed from their Lordships' opinion. To that opinion he would most readily bow. He could only say he was glad that the real rights of the parties had been correctly ascertained; and he should rejoice, in one sense, as much as any of their Lordships, that the attempts to make these extraordinary wills would be found not very easy to carry into effect. He felt as much as any of their Lordships that it was exceedingly to be deprecated that parties should be allowed to puzzle mankind, and interfere with the ordinary enjoyment of property by any contrivances or provisions out of the ordinary course of limitations. Decree reversed.

GLOUCESTER ASSIZES.

August 8, 9, 10.

SMYTH V. SMYTH AND OTHERS.

There was tried at the Gloucester Assizes, on the 8th August, and two following days, one of the most singular cases of fraud and imposture that has been recorded among the causes célèbres of this country.

The cause was framed in the nature of an action of ejectment, by which the Plaintiff, calling himself Sir Richard Hugh Smyth, sought to establish his claim to the baronetcy and vast estates, valued at near 30,000l. a year, formerly enjoyed by the family of Smyth. The baronetcy had become, or was presumed to have become, extinct on the decease of Sir John Smyth in 1849; but the estates had passed to his sister Florence, upon whose death in 1852 they had devolved upon her son, who, with others nominally interested, was the defendant in the action, and who was still under age. The plaintiff asserted himself to be the son of Sir Hugh Smyth, the elder brother of Sir John, and consequently to have been entitled to the immediate succession, on the death of his father in 1824, to his title and estates, which on his supposed decease without issue had wrongfully passed to his collateral heirs.

The extraordinary nature and extent of the claim, the interesting and romantic circumstances which might be expected to be detailed in its substantiation, the melancholy event which had attended its first announcement, and the rumours that a wonderful

system of credulity, personation, fraud, and forgery would be exposed in rebutting the plaintiff's case, of course rendered the trial a matter of the greatest interest. The Court was crowded by the members of families connected with the Smyths, and by every person who could by any means obtain admission.

Mr. Bovill stated the case of the plaintiff. The claimant to this baronetcy and the large estates which would pass with it, had been

supposed to be the son of one Provis, a carpenter, of Warmin ster, in whose house he had been brought up, and by whom, and by whose family, he had always been treated as one of themselves. For certain reasons, however, the claimant, as he arrived at an age to comprehend such matters, suspected that Provis was not really his father, but that he was the son of Sir Hugh Smyth, of Ashton Hall, near Bristol, a baronet, of ancient family, and large estates. This gentleman had married in 1797 a Miss Wilson, daughter of the Bishop of Bristol; this lady having died without children, Sir Hugh married in 1822 a Miss Elizabeth Howell. Sir Hugh died, as was supposed, without legitimate issue, in 1824; and his next brother, John, succeeded to his title and the greater part of his property. As time passed on, many circumstances and many documents came to light which proved to the claimant, in the most conclusive manner, that he was in truth the legitimate son of Sir Hugh Smyth by a first and hitherto concealed marriage with Jane, daughter of Count Vandenbergh, to whom he was secretly united in Ireland in 1796. Although the claimant was in possession of documents which placed these facts beyond doubt, his humble circumstances, and the difficulty of finding any one bold enough to take up his cause, prevented his putting forth his claim until 1849; when, rendered desperate by delay, he went to Sir John Smyth, at Ashton Hall, and communicated to him his relationship, and his claims. As Sir John had been a party to certain documents executed by Sir Hugh in his lifetime (which were among those which had been dis

covered), in which the circumstances of the concealed marriage and the birth of the claimant were acknowledged, it was useless for him to deny the justice of the demand, and he immediately acknowledged the claimant as his nephew, and the rightful heir to his brother, in the most moving terms. The shock, however, of such a communication was too much for the aged baronet, now about to surrender the title, revenues, and consideration he had enjoyed for so many years he became unable to eat, wandered about the house disconsolate, and the next morning was found dead in his bed! This melancholy occurrence having removed the person who was most interested in resisting the claim, but who nevertheless readily acknowledged the plaintiff's rights, and was willing to do him justice, the rightful heir, foreseeing a desperate litigation with the next heirs, which he was in no condition to maintain, refrained from putting forth his pretensions; and travelled the country with his wife and children, obtaining a precarious living by giving lectures; and he took no steps to enforce his rights until 1851, when, after negotiations with several legal firms, he had at length found the means of pursuing his claims before the tribunals of his country.

This being the outline of the claimant's case, his counsel stated that the facts would be supported by a number of documents, the signatures of which would be incontestably proved by family reliques, seals, rings, portraits, &c., and by verbal evidence, which would fully establish the claimant's right to the title and estates of his father. He should establish beyond all doubt that the plaintiff was the

son of Sir Hugh Smyth, by Jane, the daughter of Count Vandenbergh, to whom he was married in Ireland in the year 1796. At that time there were no public registers in Ireland; but the entry of this marriage in a family Bible would be proved, and the signatures of the witnesses would be shown to be the undoubted signatures of the parties. The entry was in the following form:—

"I certify that Hugh Smyth, esq., son of Thomas Smyth, esq., of Stapleton, in the county of Gloucester, in England, by Jane his wife, was this 19th day of May, 1796, married by me to Jane, the daughter of Count John Samuel Vandenbergh, by Jane, the daughter of Major Gookin and Hesther his wife, of Court Macsherry, county of Cork, Ireland.

CONSENA LOVETT." The signature of these parties would be proved by the most unexceptionable evidence. He should also produce a brooch with the name of Jane Gookin upon it, and also a portrait of his (the claimant's) mother. The entry of the plaintiff's baptism, which was contained in the same family Bible, was as follows:

"Richard Hugh Smyth, son of Hugh Smyth, esq., and Jane his wife, born September 2nd, 1797; baptised September 10th, 1798, No. 1, Royal-crescent, Bath.

"J. SYMES, Clerk.
"CAROLINE BERNARD.
"ISABELLA THYNNE."

In the year 1814 a man named Grace, who was Sir Hugh's butler, represented to Sir Hugh that his son, who had gone abroad, was dead. The claimant's mother died in giving him birth, and Sir Hugh kept his existence a secret, lest it should prove an obstacle to a marriage he wished to contract with Miss Wilson, a daughter of the Bishop of Bristol. He was there. fore placed with a carpenter at Warminster named Provis, and was passed as his son; but not withstanding this apparent lowness of origin he was educated at Winchester School, and, as it was believed, at the expense of Sir Hugh. Sir Hugh's acknowledged wife (Miss Wilson) having died childless, he married, in the year 1819, a Miss Howell. Circumstances having convinced Sir Hugh that the plaintiff was still alive, he in the year 1822 executed a document declaring the plaintiff to be his son. This document was discovered in the possession of a member of the family of Lydia Reed, the

plaintiff's nurse. It was signed by Sir Hugh Smyth, the deceased baronet, in a trembling hand, and by Sir John Smyth, his brother, and other persons as witnesses. All these signatures would be proved to be genuine. It was as follows:

"I, Sir Hugh Smyth, of Ashtonpark, in the county of Somerset, and of Rockley-house, in the county of Wilts, do declare that in the month of May, 1796, I was married, at Court Macsherry, in the county of Cork, in Ireland, by the Rev. Verney Lovett, to Jane, the only daughter of Count John Samuel Vandenbergh, by Jane, the only daughter of Major Gooking, of Court Macsherry, and Hester, his wife. Now, my wife, driven from Ireland by the troubles there, came to Warminster, in the county of Wilts, on the 2nd day of February, 1797, gave birth to a son, and she died the same day. The boy was left to the care of my own nurse, Lydia Reed, who can at any time identify my son by marks upon his right hand. The boy was baptized at No. 1, Royal crescent, Bath, by the Rev. James Symes, curate, by the names of Richard Hugh Smyth, son of Hugh Smyth and Jane his wife. From circumstances of a family nature this boy was brought up in private, and through the rascality of my butler Grace, under whose especial charge my son was, he left England clandestinely in the year 1813, and I had been assured by Grace that my son had died abroad, but at the death of Grace I became possessed of doubts of my son's demise. Now, under the impression that my son had died, I made or executed a will in the year 1814. That will I now abrogate, annul, and sett asside by this my last will and tes

tament, and by this document do acknowledge Richard Hugh Smyth my legitimate son and heir, and that he must possess, him and his heirs for ever, the vast estates of my ancestors, as secured to him by the will of my late excellent father, Thomas Smyth, of Stapleton; and here I implore my dearly beloved brother John to use his best endeavours to secure the return of my son, and, in case he does return, to restore to him his rights, and which I know my brother will do for my sake. Further, I do desire that documents do remain in the custody of my nurse, Lydia Reed, and whom, no doubt, my son will be sure to seek. In security of and in furtherance of the object of this deed, I, Sir Hugh Smyth, do seal it with my seal and sign it with my name this 27th day of January, in the year of our Lord, 1822, in the presence of the parties whose signatures appear.

Bandon.

Witnesses thereto-the Countess of Bandon and Consena Lovett. In the following year Jane Smyth, my wife, came to England, and, immediately after giving birth to a son, she died, on the 2nd day of February, 1797, and she lies buried in a brick vault in Warminster churchyard. My son was consigned to the care of my own nurse Lydia Reed, who can at any time identify him by marks upon his right hand, but more especially by the turning up of both the thumbs, an indelible mark of identity in our family. My son was afterwards baptized by the Rev. James Symes, of Midsomer-Norton, by the names of Richard Hugh Smyth; the sponsors being the Marchioness of Bath and the Countess of Bandon, who named him Richard, after her deceased brother Richard Boyle. Through the rascality of my butler Grace, my son left England for the Continent, and was reported to me as having died there, but at the death of Grace the truth came out that my son was alive, and that he would soon return to claim his rights. Now, under the impression of my son's death, I executed a will in 1814. That will I do by this document declare null and void, and to all intents and purposes sett asside in all its arrangements; the payment of my just debts, the provision for John, the son of the late Elizabeth Howell, and to the fulfilment of all matters not interfering with the rights of my heir-at-law. Now to give every assistance to my son, should he ever return, I do declare him my legitimate son and heir to all the estates of my ancestors, and which he will find amply secured to him and his heirs for ever by the will of his grandfather, the late Thomas