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25th of November 1752, the earl of Orford made a will, in which he bequeathed his principal eftates, after the demife of his immediate heir, the present earl of Orford, to the earl of Cholmondeley, whofe grandfather had married the daughter of his ancestor, fir Robert Walpole, the first earl of Orford. In 1756, the earl of Orford made a fecond will, in which he changed the order of fucceffion, and gave a preference over the earl of Cholmondeley to lord Walpole, who is defcended in a direct line from the fecond brother of the first earl of Orford. This, of course, annihilated the first will: and, had nothing farther occurred, no question could have arifen on the fubject. But, in 1776, the earl of Orford figned a codicil, the purport of which was to make various provifions which had been omitted in his wills, and declared this codicil to be a codicil to his laft will figned on the 25th day of November 1752.

On the part of the plaintiff, it was contended, that this codicil, which was duly figned and attefted, was a revival and fetting up of the will to which it referred; and that, of course, that will retained the fame force and effect as if the fecond will had never been made.

On the part of the defendant it was maintained, in the first place, that the codicil was deftitute of thofe forms exprefsly required by the ftatute of wills, which could alone give it the effect of reviving a firft will in preference to a fecond, where a real estate was devised; and, 2dly, that it was the intention of the teftator to annex the codicil to the fecond, and not to the first will. To establish thefe points, it was propofed to adduce parole evidence; but the court in

terfered, and were unanimous in their opinion, that the established law of the land forbade the admiffion of parole evidence to contradict a written and perfect inftrument, fuch as the will and codicil together appeared to be: that the word laft, on which the council for the defendant had laid fo much stress, was an expreffion which had no determinate meaning until the death of the teftator, when it operated to explain the intended laft act of his life; that neither the will of 1752, nor the will of 1756, was, in fact, a will until the teftator was dead; that an alteration of the date of the codicil would be making a new difpofition for the dead, which no court on earth was entitled to do; the only power vefted in a court on the fubject of wills, being that of explaining the intention of the deceafed, which, in this cafe, was perfectly clear; that the wills ought to be confidered as ambulatory inftruments, fubject to the pleasure of the owner, and to be ufed by him as his judgment or caprice might direct; and that the will of 1752 was abfolutely revived, and made his last act by the codicil of 1776.

The jury, agreeing with the court, found a verdict for the plaintiff; in confequence of which, the earl of Cholmondeley will fucceed, at the death of the prefent earl of Orford, to an eftate of the annual value of 10,000l. exclusive of the magnificent feat at Houghton, which is fuppofed to have coft upward of 200,000l.

7. A caufe came on in the court of king's bench, which deferves the attention of fome ladies and gentlemen at the west end of the town, as well as of the magistrates of Westminster.

The action was brought on a

note

note of hand for 121. Mr. Mingay, for the defendant, observed, that the plantiff was a publican, and lived near Carnaby-market; and that the defendant was formerly a butcher, but now had alfo become a publican. The anfwer that he had to make to this demand was, that the confideration of this note was money won at play.

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It appeared clearly in evidence, that the plaintiff and defendant fat down in the plaintiff's houfe to play at whift on a Sunday morning; and that the defendant loft 121. for which he gave the plaintiff the note in queftion, payable in 18 months. It was alfo proved, that, the plaintiff had afterward cffered to fell this note to a third perfon for two guineas. Lord Kenyon, in fumming up, lamented that gaming had fo deeply pervaded the whofe mafs of the public. It is extremely to be lamented,' faid his lordship, that this vice has defcended to the very loweft orders of the people. It is to be regretted, that it is fo prevalent among the highest ranks of fociety, who have fet the example to their inferiors, and who, it feems, are too great for the law. I wish they could be punished. If any profecutions are fairly brought before me, and the parties are justly convicted, whatever may be their rank or ftation in the country,

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THOUGH THEY SHOULD BE THE

FIRST LADIES IN THE LAND, they hould certainly exhibit themfelves in the PILLORY. When I speak of the highest classes of society, I muft be understood to mean fubjects; for thefe obfervations do, in no reipect, apply to thofe of the very highest rank in this country; who hold out for the imitation of their fubjects, the brighteft example of every public as well as private vir. tue.Verdict for defendant.

8. Yesterday, Kyd Wake, who was convicted at the fittings after laft Hilary term, of having, on the first day of the prefent feffions of parliament, infulted his majefty in his paffage to and from parliament, by hifling, and using feveral indecent expreffions, fuch as, No George-No war,' &c. was brought up to receive the judgment of the court.

The fentence of the court was, That he be imprisoned, and kept to hard labour, in Gloucefter gaol, during the term of five years: that, during the first three months of his imprisonment, he do ftand for one hour, between the hours of eleven and two, in the pillory, in one of the public ftreets of Gloucefter, on a market-day; and that, at the expiration of his prifonment, he do find fecurity for one thousand pounds for his good behaviour for ten years. See p (14).

11. William Auftin was convicted at the Old Bailey, of forging, or aiding and aflifting in forging, a will, purporting to be the will of the Rev. Mr. Henry Lewis, of Hyga, in the county of Monmouth. Of this crime, fir John Briggs, bart. is accufed, and George Crossley, an attorney, was lately tried for it, and acquitted. Auffin was convicted principally on the evidence of Jacob ligar, an accomplice, who declared, that the prifoner received 100l. for this forgery.

12. Yefterday, at nine o'clock in the morning, Richard Thomas Crofsfield, Paul Thomas Le Maitre, George Higgins, and John Smith, charged with confpiring to compass the death of the king, were put to the bar at the Old Bailey, The indictment was then read: it contained fix overt acts of confpiring to kill and put to death our

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fovereign lord the king, with a poifoned arrow, to be thrown by the means of a brafs tube. The jury being fworn, the three prifoners, Le Maitre, Smith, and Higgins, were ordered to withdraw, and the trial of Crofsfield commenced.

Sir John Scott, the attorney-general, opened the cafe for the crown; and, after explaining the law of treason, faid, he forbore commenting upon the evidence to be adduced, as it might tend to prejudice the jury. He called

John Dowding, a workman with Mr. Fenton, a brass-founder, in New-ftreet-fquare, who fwore, that in September 1794, three perfons called at his mafter's fhop; one of them he particularly remarked was lame, that he afterward understood that his name was Upton (fince dead). The lame man afked him, if he could make a tube three feet long, one eighth inch thick, made fmooth in the infide as a cylinder. The witnefs afked him, what it was intended for, and was anfwered, that it was a fecret. They, however, obtained a tube (but not from the witnefs) which was afterward returned, not being ufeful. The counfel for the crown preffed the witnefs hard, to know whether he could recollect the two perfons who came into the fhop with the fame man (Upton); but he had not the leaft recollection of either of them.

Mr. John Fenton, the employer of the above witness, gave a fimilar teftimony.

James Bland Wood, brafs-founder, in Shoe-lane, was next called. -In September 1794, two men came into his fhop, one of them afked for a tube, or barrel, the witnefs faid, it was out of his way, and advised them to go to a clock

maker. The two perfons left the fhop, and then a third came in, and afked, if two perfons had not been in the fhop? The witnefs replied, they were just gone out.-He knew nothing more of the circumstance.

David Cuthbert, a mathematical inftrument-maker, of Arundelstreet, fwore, that he knew the late Mr. Upton, he was a watchmaker; he faw him about the middle of September, and fhewed him an air gun.

Peregrine Palmer fwore, that he knew the prifoner. They were both members of the London Correfponding Society. Being queftioned by Mr. Garrow, whether he was not acquainted with the pri foner's hand writing, he pofitively denied that he knew any thing of his writing, but that of his fignature.-The witnefs then gave the fame defcription of calling at the feveral brafs-founders' houfes, and defcribed the business in a very fi milar manner. He was fhewn a drawing, which was laid before the privy-council, and defired to recollect, whether that was the fame he faw there?-He could not recollect.

The lord chief juftice interfered, obferving, that the evafive manner in which this evidence was given entirely destroyed the credit of it. Upon the whole, the witnefs could not, from his memory, bring any charge home to the pri foner.

John Hill, turner, in Bartholomew Clofe, fwore, that in September 1794, Upton, Palmer, and another man, came to his houfe; and Upton asked him, if he could turn a model in wood, according to a plan which was produced. Upton produced a sketch. A drawing was fhewn, and the witness thought it was the fame that was then pro

duced.

duced It was drawn in his prefence; the paper was very particular on which the draft was made, having at the back the words "A houfe to be let, enquire within." The whole of the three had a fhare in the drawing, and feemed to be active in the bufinefs.-The witnefs was informed, by Upton, he should be paid for his model.

A very long argument took place, whether the remaining evidence, namely, the confeffional evidence of the prifoner himself, fhould be admitted. Mr. Adam contended, that no overt act of treafon had been proved by two witneffes. The court determined, that the confeffional evidence ought to be taken, in order that the jury might discover the intent of the prifoner's mind, and, of courfe, bring the overt act home to him.

Jonathan Le Briton stated himfelf to be a boatfteerer to the Pomona South Whaler, and that they failed from Portsmouth on the 29th of January 1794. About a fortnight before that time, the prifoner came on board as their furgeon, and, as was usual for gentlemen in that capacity, was generally called doctor. They went round to Falmouth, whence they failed February 13, and were captured on the 15th, by a French corvette, La Vengeance, by whom they were carried into Breft. The prifoner then wrote his name R. T. Crofsfield, and on his being put on board another hip, he wified the witnefs good-bye; faid that he was happy he was going to France, and that he would much rather be there than in England. They were foon after put into the fame prifon fhip, where they remained until a cartel was ready for their exchange. On the day after they failed from Portfmouth, he told the witnefs, that

he was one of those who invented the air-gun to fhoot, or affaffinate, his majefty; and described that, it was to be done by an arrow, barbed like their harpoons, through a kind of a tube, by inflammable air. When the cartel was ready, the prifoner fet himself down in the lift, by the defcription of H. Wilfon, of the Hope brig, which was alfo taken by the fame fhip as they had been.-In his cross-examination, he faid, he knew nothing of the mufter-lift; that their crew confifted of twenty-three men, and that captain Charles Clarke came back with them, who had not, however, attended the privy council, though he had feen him at Mr. White's, the folicitor's; at his lodgings; and at Mr. Smith's, at Wapping; but denied he had ever converfed with him on this fubject. He admitted, that after they were taken, they had a fcheme to seize the French fhip, in which Crossfield, as well as the reft, was engaged. He remembered, that they were allowed to take out fome of the private trade, but denied that he and the prisoner had ever quarrelled.

Thomas Dennis, mate of the Pomona, ftated, that the prifoner, the night after they failed from Falmouth, faid to him, that Pitt would fend a frigate after him, if he knew where he was; that his majesty was to have been affaffinated by a dart, blown through a tube, at the playhoufe, and that he knew how it was conftructed.-The other part of his teftimony was fimilar to that of the former witness. In his crofs-examination, he acknowledged he had written a certificate to the conful, that he was an American: he believed, the pri foner had stated himself a naturalifed Hollander. He had heard that the

prifoner

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prifoner charged the lofs of his fhip to his negligence, but they never quarrelled.

James Winter defcribed himself to be the owner of the Sufanna, a Newfoundland veffel, which was captured, and carried into Breft: after being confined fome time in the caftle, he was put on board the prifon fhip where he was introduced to the prifoner, by a capt. Yallerley, by the name of Crofsfield; but he faid, No; his name was Tom Paine; they lived in habits of intimacy for five months, conftantly fupping and dining together; during which, he frequently faid, he had fhot at his majefty between Buckingham-houfe and the palace, but unluckily miffed: he afterward fhewed the witnefs a hollow piece of iron, about a foot and a half long, as a fimilar inftrument to that with which he had made the attempt; that he had fhot a cat through it, with a poifoned dart, and that he had died immediately after. Another day he faid, he hoped he fhould live to fee the day that the streets of London would be up to his ancles in the blood of the king and his party. Interrogating him about his thooting at his majefty, he faid, that, after he had fhot at him, he was purfued by two king's meffengers; but that he escaped to Portfmouth, got aboard a South whaler, was a few days after luckily taken, and brought into Breft. One day, after dinner, a capt. Collins, who was a prifoner with them, faid, he with ed, he had the cutting off the heads of the king, Pitt, and the parliament; the prifoner replied, Have patience, I hope to have the cutting off of fome of them myself.'

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When the cartel fhip was ready, the prifoner went into the cabin with the French commodore, and 6

when he came out, faid, "Now every thing is fettled to my fatisfaction;" having, previoufly to this, often boafted that the French had offered him great encouragement. They were three days on their paffage, but immediately, on their arrival at a port near Fowey in Cornwall, the witnefs fought out a magiftrate, gave information against the prifoner, and had him taken into custody.

Richard Penny, mafter of arms of his majesty's fhip Active, was a prifoner at the fame time, and gave teftimony of fimilar expreffons.

Walter Colmer and Edward Stoker, two conftables of Fowey, gave an account of the apprehending of the prifoner, and that, as they were taking him to Bodmyn, he offered to give them two guineas a-piece, to let him go; and on their afking, what was to become of the poftboy? he faid, lend me one of your piftols, and I will foon pop him out of the way.

Elizabeth Upton fwore, that the had not feen her husband for fome time. He had fuddenly disappeared, and was fuppofed to be dead.

Two other witneffes were called to prove that Upton had been feen at one of the meetings of the correfponding fociety, with a tube. like that which was taken in his houfe.

Mr. Mortimer, the gunfmith, believed, what was fhewn him, and the drawings, to be intended for parts of an air-pump.

Mr. Wood, a barrifter, faw one of thefe drawings in the poffeffion of Upton, at his own houfe, in September 1794. He went to Mr. Pitt, the next day, to give him in. formation. And here ended the evidence for the crown.

Mr. Adam, counfel for the pri

foner,

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