This will was written with the testator's own hand, as was proved; and was published in the presence of three witnesses, at three several times, and they all attested it in his presence, but he did not sign it in the presence of the second witness, but only owned the signing to be his hand, and desired him to attest the will, as was proved by that witness. The testator died, leaving an infant heir, and the land was decreed to be sold, and no day given the infant to shew cause against it. One of the objections to the decree was-that this was no good will within the statute of frauds and perjuries, because not attested by all the witnesses at one time, and that one of them did not see the testator sign, but only hear him own that it was his hand.

But the Lord Keeper held a publication of a will before three witnesses, though at several times, to be sufficient, and thought the writing of the will with the testator's own hand (3), a sufficient signing within the statute, though not subscribed nor sealed by him, but doubted whether acknowledging the subscription to be his own would suffice (4).

(3) According to the Code 6. 23. 28. the writing of the will with the testator's own hand, dispensed with his signing; but it was added as a condition, et hoc specialiter in scriptura reposuerit, quod hoc sua manu confecit; but it dispensed with no other solemnity.

(4) This question has been already sufficiently discussed.

In Jones v. Lake, the case upon the special verdict was thus, The testator signed and executed his will in December, 1735, in the presence of two witnesses, who attested the same in his presence; afterwards, in the year 1739, he with his pen went over his name, in the presence of a third witness, who subscribed his name in the testator's presence, and at his request. And the question was, whether this was a due execution within the statute. For the heir at law it was argued, that the statute requiring three witnesses to subscribe in the testator's presence, must intend they should be all present together ; otherwise, there was not that degree of evidence which the statute requires; for an attestation of three witnesses, at different times, has only the weight of one witness. Witnesses to a will not only attest the due execution of the will, but likewise the capacity of the testator at the time of execution. A man may be sane at the time two witnesses attest, and insane when the third attests. It cannot be considered as a will, till the third witness hath signed, for that completes the act. The will was dated in 1735; suppose lands to be purchased after the date, and before the attestation by the third witness, would the lands pass? certainly not."

On the other hand, it was argued for the devisee, that a will executed before three witnesses, though at three different times, was good; the statute not requiring they should all be present at the same tine. That the requisites under the statute were,

that the testator should sign in the presence of three witnesses at least, and that they should attest in his presence. It would therefore be adding new requisites which the act did not mention, and in effect be making a new law.

The Lord Chief Justice Lee said, the case depended upon the words of the statute. The requisites in the statute, were, that three witnesses should attest his signing, but it did not direct that the three witnesses should be all present at the same time. Here, said the Chief Justice, you have the oath of three attesting witnesses. This is the degree of evidence required by the statute. And the same credit is given to three persons at different times, as at the same time. We cannot carry the requisites farther than the statute directs. The act is silent as to this particular. It would therefore be making a new requisite. The signing is the same act reiterated. The testator went over his name again, and declared it to be his last will. Judgment was accordingly given against the heir at law.

The judges, in the case of Ellis v. Smith,' admitted the authority of these cases, and drew from them an inference in favour of the validity of the testator's acknowledgment to the witnesses of his hand-writing to the signature of the will. "To strengthen the authorities I have already mentioned, said the Lord

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Chief Baron Parker, I shall take notice of the cases which allow the witnesses to subscribe at different times; and I think they support the admission of the declaration in question; since the testator is not supposed to run over his name before every witness, but having signed before one to acknowledge it only before the rest (5). The same conclusion was drawn by Lord Chancellor Hardwicke, Sir John Strange, Master of the Rolls, and Lord Chief Justice Willes. The last of whom observed, that the authorities not in point supported the decree more strongly than those in point, for they allowed the attestation and subscription of the witnesses at different times to be good; and the testator is presumed to write his name only before one, and to acknowledge it to be his hand to the remaining two. And in the opinion of the Master of the Rolls, to permit the witnesses to attest at several times, was to admit the asseveration of the testator that it was his will, to be equivalent to signing it before the witnesses; to which Lord Hardwicke added, that he differed from those who thought that the cases which had been mentioned, only supported the case before the court, by consequential reasoning; he thought them directly in point.

(5) In Jones v. Lake, (the last case produced,) the testator did run over his name again; but the principle of the decision implied the sufficiency of an attestation, made at three distinct times.

It is to be observed, however, that these decisions, in the opinion of the whole court, went too far, and opened the way to frauds, and particularly the Chief Justice observed with great force, that " he had known one man swear, that he did not see the testator sign, and the other two swear that he signed it before the three; so might one man swear, that when he attested the will, the testator was insane; another, that he was sane; and thus an inlet was given to great frauds and impositions. But when they attested it simul et semel, they were a check upon each other, and such frauds were prevented (6); nay, said his

(6) This was certainly the doctrine of the civil law, from which the framers of the statute in question borrowed, in making this provision for preventing the forgery of wills. We have shewn that the words 'uno contextu' related to the complex ceremony of publication, which was necessary to be done by a continued act. The attestation, therefore, which was an essential part of the publication, was necessary to be done by the witnesses, simul et semel, at the same time, at the same place, and in sight of each other; not meaning, of course, by the same time, eodem instanti, but uno actus contextu, at one juncture, without break or interruption*, as the text of the Code (6. 23. 21.) well explains, distinguishing at the same time between the act of making and that of celebrating and publishing the will, to which last-mentioned act the words uno contextu' are shewn to be only applicable. In omnibus autem testamentis quæ presentibus vel absentibus testibus dictantur superfluum est uno, eodemque tempore exigere testatorem, et testes adhibere, et dictare suum arbitrium, et finire testa

All solemn legal acts and ceremonies were necessary, by the civil law, to be executed without interruption, the common phrase to express which was, uno contextu absolvi

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