case TWAITES and smith a child of a residuary legatee no witness to prove a  will relate to personal estate by the civil law by which law only such will be  determinable a appeal be bring before the court of delegate from a sentence  give by dr watkinson chancellor of the archbishop of for the validity and  probate of a will of a personal estate the single matter in question be that  there be only three witness to the will and two of those happen to be child of  the residuary legatee wherefore it be insist that those two child be not  competent witness for as much as by the civil law the child be not allow to be  a witness for his parent and so be the express text thereof as appear by the  digest title de witness and this be say not to be any of the solemnities or  ceremony of the civil law for then it may not be bind here no part thereof be  Obligatory or necessary to be observe among we but what be require by the law  of nature and nation but the reason of this prohibition of child from bear  witness in case where their parent be peer William concern proceed from the  affection and duty they owe to their parent and so be albericus pagan in his  tract de witness queen foe in answer to which it be allow to be true that by  the civil law child be incapacitate as above but then the same be urge to be  only one of the ceremony of that law and so not of force with we just as a  woman be thereby prohibit to be a witness whereas our law know of no such  prohibition but admit these child be exceptionable for that reason yet here  remain one witness altogether without exception and by the civil law one good  witness may supply the deficiency of another exceptionable witness see  Farinacius de witness Q foe who word be testis One inhabilitas et diminution  to fill up ex fide et habilitate of one another and it be order by the  civilian that precedent shall be search for the appellant the case of Marwood  versus Metcalf be produce where upon a appeal from the court of York to the  delegate this very exception be insist upon and at length allow also the case  of sir Thomas Littleton where the like exception prevail but this last case  not be before a court of delegate there be no commonlaw judge for the  defendant be show the precedent of late adjudge by a court of delegate where  Mr justice Powell jun be in the commission and present and which at the bear  of this principal case he remember the point there be upon the revocation of a  will and whereas by the statute of fraud car cap sect et vide post onion v  tyrer it be enact that no will shall be revoke but where the write revoke it  be sign in the presence of three witness it fall out that there be in that  case three peer William witness two whereof be unexceptionable but the three  be the child of the residuary legatee be for that reason object to as no  witness by the civil law but it be decree by the judge delegate that there be  two good witness which be sufficient to prove the revocation by the civil law  though the statute require a three witness yet that other witness add by the  statute need not to be qualify accord to the civil law from whence the  commonlawyers infer that our judge have not look on themselves as bind up by  the rule of the civil law but at liberty to follow their own where the two law  differ to which it be reply first that this be a will of a personal estate  only be proper to be determine by the canon and civil law post Anonymous mich  term and plume v beal and that the judge have in all such case conform thereto  salk   indeed where some temporal matter depend on a ecclesiastical cause and  be necessary to be determine with it there though the ecclesiastical judge may  try such temporal matter yet they ought to do it by the rule of the commonlaw  to which it proper belong else the commonlaw judge will interpose by send  prohibition and that with this distinction be all the case wherein the  temporal judge have differ from the civilian to be reconcile second that in  this case the have of one good witness will not help the disability in the  rest for that be to be understand where the exception go only peer William er  p to diminish in part the credit of the witness as on account of friendship or  even relation in a further degree but not in case of exception to a child who  be absolute prohibit to be any witness at all peer William three that the  exception to witness in the civil law and in a cause triable by they be not to  be compare to such exception as may lie against witness at commonlaw where the  trial be by jury but rather to exception to the jury and this of relation be a  good cause of challenge to a juryman even at commonlaw Inst a last as the  strong argument in favour of the exception the constant practice be appeal to  and that the defect can not be supply by another entire witness be say to  appear from Swinburne who give a account of the practice and law here in that  particular lib sect express say when the law resist the examination of witness  it shall not be supply by any other witness whereupon the commonlaw judge  agree with the civilian that these two child be not to be allow as witness  therefore the will fail for want of proof one witness be by the civil law as  no witness and so administration be grant to Twaites the appellant Powel sen  be a little doubtful but think that in this case he be to be bind by the  civilian he at length agree and the sentence give at York be reverse afterward  a commission of review be sue out upon this sentence but the party agree and  the executor renounce woman be not permit to be present at the Roman assembly  where former will be make and so can not be witness thereto wood Inst civil  law I e where the party have the power of choose his witness as in case of a  will but woman be by the civil law allow to be witness where no other can be  produce roof lib S pl quere if the will in question appear to be write or so  much as subscribe by the testator own hand since in either of these case it  will have be good without any witness at all vide Swinb so although only  dictate by the testator as instruction for a will caryi v askew bro c c S c  Cox et vide matthews v Warner Ves Ves Habber field v Browning cobbold v baa  cite Ves Scott v Rhodes Phil Sandford v Vaughan ib green v Skipworth ib wood v  wood ib read v Phillips Phil Huntingdon v Huntingdon ib peer William de  boundary S HILLARII b r