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I BROWN.
SMYTHE v. CLAY [1770]

conclusion; whereas these orders were in their nature absolute final judgments, and when once given, nothing more remained to be done.

On the other side it was said (F. Norton, A. Wedderburn), that the House having declared upon the former appeal, that no appeal lies against an order awarding a commission of idiocy or lunacy, it was apprehended no appeal lies against an order refusing a commission of idiocy or lunacy, or refusing to direct a special jury to be impannelled for the executing of such commission. That the application for a new commission, or melius inquirendum, was without precedent, and contrary to law in this case; because the commission of the 19th of December 1766, was made out in due form, and agreeable to precedents. No misbehaviour on the execution of it, either in the commissioners or jury, was proved. The finding of the jury was direct, and apposite to the inquiry directed by the commission; and therefore the commission and return could not be quashed. The verdict upon inquisitions taken for the Crown, if the writ of commission be regular, and the finding perfect, is by law traversable by the party, where the finding is for the Crown; but if the finding be against the Crown, it is final; because otherwise such inquiries might be infinite, and productive of contradiction and uncertainty; and therefore no new commission, or melius inquirendum, could in this case issue.

After hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; as no appeal lies to the House against any proceedings, touching the awarding or refusing commissions of idiocy and lunacy. (MS. Jour. sub anno 1767–8. p. 437.)


[453] Case 5.—John Smythe, and others,—Appellants; Richard Lomax Clay,—Respondent [24th January 1770].

[Mew's Dig. i. 338: See St. Ord. H.L. No. I.]

[By an order of the House of Lords, of the 24th of March 1725, the time for receiving appeals is limited to five years from the signing and inrolling of the decree; and therefore, upon an appeal brought from two decrees, of the 15th of July 1728, and the 5th of February 1731, which were inrolled in March 1764, the House declared that the appeal ought not to have been received, and accordingly it was dismissed.—In making this order, the House is said to have considered the inrollment of any decree pronounced by the Court of Chancery, as being by legal relation, the act of the same day on which the decree was pronounced.]

Samuel Papillon, by his will, dated the 7th of October 1725, (amongst other things) devised to his son John Papillon, his executors and administrators, one moiety of his personal estate, in full for his orphanage or customary part thereof, payable to him at his age of 21; and out of the other moiety, which, by the custom of London, was in the testator's own disposal, he gave divers particular legacies; and all the rest of that moiety he gave to his brothers Lee Steere and John Gledhill, and his nephew William Voyce, and the survivors and survivor of them, and the executors and administrators of such survivor, upon trust, as soon as conveniently might be after his decease, to lay out the same in the purchase of lands in fee-simple, and to settle the same to the use of the said John Papillon for life, without impeachment of waste; with remainder to trustees and their heirs, to preserve the contingent remainders; remainder to the heirs of the body of the said John Papillon lawfully to be begotten; and in default of such issue, to the use of the children of his the said testator's three late sisters, Phebe Smythe, Mary Ball, and Ann Gledhill, and the heirs of their bodies begotten or to be begotten, as tenants in common, and not as joint tenants, each of his said late three sisters children, to have an equal third part thereof; and, in default of such issue, to the use of his own right heirs for ever: and the testator also devised unto his said brothers, Lee Steere and John Gledhill, and his said nephew William Voyce, and their heirs and assigns for ever, all his manor of Great Bentley, in the county of Essex, to the use of his said son John Papillon for life, without impeachment of waste; with remainder to trustees, to preserve the contingent remainders; remainder to the heirs of the body

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