The MASTER of the ROLLS said, he could not order the purchase-money to be distributed till the purchaser had got a conveyance of the legal estate. The purchaser could not be supposed to know what construction the Court would put upon the Act, nor, therefore, that there was no jurisdiction to direct a conveyance. There did not appear to be any way of getting over the difficulty but by an Act of Parliament; and, if they should think proper, the plaintiff might have a reference to the Master, to inquire whether it would be for the benefit of all parties that an Act should be obtained.

Thursday, Feb. 26.
RIGBY V. PINNOCK.
Practice-New Orders of May 1845-Amendment-
Traversing note-Time.

A commission to take the answer of several defendants
who were abroad was obtained, and the answers were
to be sent over, but, to save the expense of a special
messenger, they were kept back for an opportunity to
send them; under the circumstances the plaintiff ob- His lordship, in the course of the day, communi-
tained an order to amend and served it upon the de-cated with the clerk of the records and writs, who
fendants, and on taking an office copy it was found said he would receive the answers, notwithstanding
that they were required to answer the interrogatories, the amendments, if no other answer had been put in.
though, as to some of them, a notice accompanied the This, however, did not dispose of the motion; and the
service of the order to amend, that they were not re- Court then decided on the application of the Orders,
quired so to answer. On the eighth day after service and was of opinion that the motion was premature
of the order the plaintiff moved that the defendants, and fruitless, the defendant having six weeks to
who had been so noticed, should either file their an- answer, under the 14th rule of the 16th Order.
swers or allow the plaintiff to file a traversing note
against them, and the motion was refused, the de-
fendants having six weeks to answer under the 14th
rule of the 16th Order, and not being confined to
eight days under the 38th rule of the same Order.
The 38th rule of the 16th Order applies to the case of
amendments after answer, and the 14th rule of the
same Order to that of amendments before answer.
If no answer has been put in, the clerk of records
and writs will receive an answer to the original bill,
though it has been amended before the answer is pre-
sented.

In this case the bill was filed on the 14th July 1845, and an appearance was entered for the defendants (against whom the present motion was made) on the 28th of the same month, and, therefore, the time for answering expired on the 22nd September. On the 3rd November a motion was made for a commission to take the answers of these defendants who were abroad, their solicitor stating that the answers were then engrossed, and undertaking to use all expedition; and, the commission having been executed, the answers were detained for the purpose of being sent by the first opportunity without the expense of a special messenger. The patatin, however, was dissatisfied with the delay, and gave notice that if the answers were not filed by the 21st of February, he would apply to the Court for leave to file a traversing note against them. On the 18th of February the plaintiff served the defendants with an order to amend, and on taking an office copy of the amendments they found that they were required to answer the interrogatories; notice, however, had been given to those defendants against whom the present motion was made, that they should not be required to answer. On the 26th of February the plaintiff moved that the defendants should either file their answers or allow him to file a traversing note against them.

Cairns, for the motion.

It ap

under an order obtained for that purpose, the record found due to Smith, on the bills, the sum of
is altered. It is not like a case in which an answer 2,8321. 5s. 3d. In pursuance of this finding, Smith,
is put in, and then the bill is amended, and precaution on the 18th of July, 1845, presented a petition for
is taken that the defendant is not subject to any pro- payment of what was due, and of costs in the
cess, but is left to himself to answer or not as he various proceedings, and Husband afterwards pre-
pleases. But in this case there is an amendment, and sented his petition for liberty to except to the
no intimation contained in it, but only a notice ac- certificate, and the two petitions now came on to be
companying the service that the defendants were not heard, Husband's petition being opened first. The
required to answer the amendments. Well, this notice petition complained of frauds being committed by
is given, and the answers are actually ready if there Smith, alleging that he had charges in his bills for
was a fitting opportunity of sending them, the mes- disbursements never made for counsel's fees, &c. and
senger's oath being required; but they are not to the that in the course of taxation many of these were
amended bill, but to the original bill; and yet they paid, and vouchers produced which would not other-
are asked to file them, or have a traversing note filed wise have been paid; and that, after all, ninety-five
against them. My impression is, the answers, if items amounting to 1071. 17s. 10d. for counsel's fees
tendered, would not be received, becaue they are to a were disallowed, and 222 items, amounting to
bill not now on record; and, if so, the motion is 1737. 9s. 10d. overcharges, were reduced or dis-
mistaken, because the answers are to the original bill; allowed; that all the bills had not been taxed, but
and in that case to file a traversing note would be that about twenty had been allowed on the mere
against all principle. I will not dispose of it until I voucher of Smith of the several sums charged therein,
inquire.
on the ground that these bills had been paid to Hus-
band by his clients. It appeared that they were in
bankruptcy, and had been taxed by the proper officer.
But the principal objection arose out of the payments
alleged to have been made in respect of the bills, that
being the only extent to which the Taxing Master
was directed to go into the cash account.
peared that the cash account was not taken into con-
sideration till January, 1844, and that Mr. Smith had
been allowed all his cash disbursements, whether in
relation to professional business or not, but that two
Thursday, Jan. 15, and Thursday, March 5. particular items had been disallowed to Husband
Re SMITH.
amounting to 5001. each; and the disallowance of
Taxation-Constructive payment-Jurisdiction in cases these formed the principal ground of complaint. It
of taxation-Special directions to taxing Master-appeared that in August, 1835, Husband and one
His duty when no such directions.
Malachy were at the office of Smith, and Malachy
being in possession of a large number of shares in the
Wheal Brothers Mine, sold Smith twenty-five of
them for 500l. which he requested Husband (as he
alleged) to pay, and he would credit the same against
the bills of costs, and Husband accordingly agreed to
do so. At the same time, also, Smith bought twenty-
five shares of Husband at 5501. and agreed, as was
alleged, to give him credit for 500l. part thereof
against his bills of costs, the odd 501. being paid by
a cheque, which stated the circumstances under which
it was given. Smith also, as was alleged, made at
the time an entry of the sums in his cash book, to
the credit of Husband, and gave a receipt for 1,000l.
which was produced to the Master. When the mat-
ter came before the Master, he thought the evidence
insufficient as to the payment of the 500l. to Mala-
chy, and as to the other 5007. he thought the consi-
deration of it did not come within the terms of the
order of reference, and he disallowed them both. The
entries in the book of Smith were not in evidence; and
as he would not produce them, the Master refused to
compel him. The points then were, whether Mr.
Husband should be allowed in account the two sums
of 5007. and whether the Master was right in refusing
to tax the twenty bills already mentioned.

In ascertaining what payments have been made on ac-
count of bills, questions of law and of fact may
arise which may require to be determined even in the
limited jurisdiction under which bills are taxed, but
whatever the Court itself might feel to be its duty in
such cases,
the Master's duty is to confine himself, in
a case where he has received no special directions
from the Court, to simple payments plainly proved
to have been made on account of the bills, and not to
take upon himself to certify whether a certain alleged
transaction, not amounting to actual payment, is or
is not a transaction which a court of law or equity
would, under the circumstances, adjudge to constitute
a debt or payment.

An order being made, on the petition of a country
solicitor, for the taxation of all his town agent's bills,
the taxing Master taxed all the bills except those
which had been previously taxed or paid, and as to
these he called upon the town agent merely to prove
his alleged disbursements it was held that charges
in a petition for leave to except to the report were
without foundation, no specific error being alleged to
have been made.

Turner (with him Cole), for the petitioner, cited Oakeley v. Pasheller (10 Bligh, 548); Thompson v. Percival (5 B. & Ad. 925), to shew that the credit given by Smith amounted to payment to him. Kindersley and Daniel, contrà.

In this case two petitions were before the Court, one praying leave to except to the taxing Master's certificate, and the other that it should be confirmed. It appeared that Mr. George Smith was the town agent of Mr. James Husband, a country solicitor, from the year 1825 down to the close of 1840, during all which time there had been no taxation of his bills, nor any settlement of accounts in relation thereto. March 5.-The MASTER of the ROLLS stated the Mr. Husband having been, as he alleged, defrauded facts, and proceeded :-The first observation to be by Mr. Smith in a great variety of transactions, dis-made on the case is this, that the sums of 5001. each Kindersley (with him Hallett) for Edward and continued him as agent in the latter end of 1840, and formed part of the petitioner's complaint on his first Thomas John Pinnock, two of the defendants, said employed Messrs. Bourdillon and Sons; and in May, petition, in which it was stated that Smith omitted to that if the plaintiff would dispense with a special 1841, presented a petition praying (see Re Smith, 4 credit him in account with a sum of 1,0001, for which messenger, he might have the answers immediately. Beav. 309,) for the delivery by Smith of papers, &c. he ought to have been credited in 1835, and for which The order to amend was served on the 18th of February of his further bill of costs, and his cash account dur- the petitioner held Smith's receipt in his own hand, after the answers were prepared and ready to be sent, ing the years 1830, 1831, 1832, 1833, and 1834; and dated 5th August, 1835. That petition contained no and on taking an office copy of the amendments the praying a reference to the Master to tax the bills allegation of an agreement by Smith to give credit defendants found they were required to answer the in- from 1825 down to 1840 inclusive, to settle and ad- for this sum of 1,000l. but only asked for relief on the terrogatories, though notice was also served that they just the cash account, and to take an account of all general account, which I refused; and the order was would not be required to do so. Besides, Thomas dealings and transactions between them; and that in made that the Master should have regard only to such John Pinnock is an insolvent, and his assignees must the taxation the Master might be ordered to have re- sums as were paid on account of the bills. To meet have time to answer. [The MASTER of the ROLLS.-gard to an agreement stated in the petition as to the the terms of the order, this petition states an entry in Would the clerk of records and writs receive an answer employment of Smith as agent. The order made on a book, in the presence of the petitioner and Malachy, to the original bill after amendment?] It is not likely this petition was, that the petitioner paying into Court crediting the petitioner with 1,000l. as against the he would; the answer must be not to the original bill the sum of 1,000l. and undertaking to pay what bills of costs, but the affidavit of Husband omits the which does not exist, but to the amended bill. should appear to be due on taxation of his bills, Mr. words "as against," &c. There is, however, both Smith should deliver his further bill of costs, from averment and alleged agreement, supported by affithe foot of the last bill delivered; and that the Master davit, that Smith did agree that the two sums of 500 should tax the bills and ascertain the amount due each should be credited against the bills. Smith inthereon to Smith, "having regard to the sums of sists that the transaction as to the shares was fraudumoney which have been paid by or on behalf of Mr. lent and void, and that the sums alleged to be paid to Husband to Mr. Smith on account thereof." But the Malachy were, in fact, never paid, and that there Court refused to entertain the question of the agree was no such agreement as that alleged, and that the ment, or to order an account of dealings, &c. for the Master was right in not allowing the sums. Notpurpose of adjusting the general cash account, on the withstanding the importance of keeping the jurisdicground that there was no jurisdiction to do so on a tion in cases of this kind within its proper limits, and petition for taxation. The papers, &c. were also the propriety of directing the Master to have regard ordered to be delivered to the new agents. Accord-only to sums paid on account of the bills, yet it is ingly, on the 19th November, 1841, Husband paid not improbable questions may arise as to what payinto Court the 1,000l. and on the 6th Dec. Smith ments have been so made, both of law and of fact, delivered his further bill of costs, and on the 7th the which may require to be determined even in this judeeds, papers, &c. and soon after the taxation com- risdiction; and when they should so arise, it would be menced, and was not completed till July 1845, when right to settle them according to law and justice. the taxing Master certified that Smith's bills of costs, But when the Master has received no special direcamounting to 9,1761. 6s. 8d. had been laid before him, tions from the Court, it is his duty to confine himself and he had taxed them at 8,7517. 17s. 10d. and that, to simple payments plainly proved to have been made having regard to the payments on account thereof, he on account of the bills. Upon a conflict of evidence,

Turner, for other defendants, contended that as the plaintiff had amended by adding parties, viz. the assignees of the insolvent, they must have time to answer, as they could not answer without answering the amendments; it was the same as if an original answer was required, and they must have six weeks. Besides, the 38th rule of the 16th Order clearly applies to amendments after answer, as the 14th rule of the same Order applies only to those before answer.

Cairns, in reply, contended that the defendants, not being required to answer the amendments, had only eight days, under the 38th rule of the 16th Order, not six weeks, under the 14th rule of the same Order, in which to answer, unless they took out a warrant for further time; and as they had not done so, and it was then the eighth day, after service of the order to amend, the motion was quite regular.

The MASTER of the ROLLS.-The question is, whether the motion can be granted. The plaintiff having, since the answers were taken (though, perhaps, I ought to take no notice of that), amended

The VICE-CHANCELLOR.-The case of Medhurst v. Allison is an authority for a convenient and reasonable construction of an Act of Parliament, and, without expressing any opinion of my own, I shall follow it.

Rolt applied for his costs.

The VICE-CHANCELLOR said, that the defendants might elect whether they would then take 41. or let the costs be reserved.

he may have to certify that a payment has been made, pursuant to the 4 Vict. c. 94, and 4 & 5 Vict. c. 52.
but he ought not to take upon himself to say whether (Calvert v. Gandy, 1 Phil. 518.) The difficulty in the
a particular transaction, not amounting to actual pay-present case had not been removed by the 8 & 9
ment, is such a transaction as either a court of law Vict. c. 105, which was relied upon in Medhurst v.
or of equity would adjudge to constitute a debt or Allison.
payment. And in this case, considering the form and
manner in which the plaintiff's claims to this and the
two sums of 5001. each were discussed and disposed
of on the former petition, and the absence of any ex-
planation of the circumstances under which he seeks
to establish his claim on a different footing; consi-
dering the form of the order, directing regard only to
be had to the sums paid on account of the bills, and
the absence of special directions as to the sums
claimed in the petition; and further, having regard to
the claim of the 5001. alleged to have been paid, and
the 5001. which it is alleged ought to be deemed to
have been paid, I am of opinion the Master has pro-
perly disallowed these sums, and that in respect of
them there is no ground for giving the petitioner
leave to except to the report. I am further of opi-
nion that the charges made in this petition, that the
Master has not fully taxed all the bills which he was
ordered to tax, is without any just foundation. All
the bills not previously taxed or paid were fully taxed;
as to the others, Mr. Smith was called upon to
prove his alleged disbursements, and I do not find
that the petition contains any allegations of any spe-
cific error. On the whole, therefore, I am of opinion
that the petition must be dismissed, with costs.

VICE-CHANCELLOR KNIGHT
BRUCE'S COURT.

Saturday, March 7. SCOTT t. BROADWOOD. Pleading Statute of Limitations-Bill of discovery. To a bill of discovery in aid of an action of ejectment, the Court held a plea of the Statute of Limitations to be good.

VICE-CHANCELLOR WIGRAM'S

COURT.

Friday, March 20.

DELWAR U. ROGERS.
Cankrein moved, under the 24th Order of August
1831, for leave to enter a memorandum of service of
copy of the bill in this cause upon one of the defen-
dants, and supported the application by an affidavit
of a copy of the bill having been served, and stating
the time when the service was made, as required by
the above Order.

The VICE-CHANCELLOR.-Does the affidavit state
that the bill prays no direct relief against this defen-
dant, and that the copy served was a correct copy of

the bill?

Cankrein. It does not.

The VICE-CHANCELLOR.-Unless you can assure
me of the truth of those facts of your own knowledge,
from having drawn the pleadings, the motion must
stand over to have the affidavit amended to satisfy
the Court upon those particulars.
The affidavit was amended, and the rule was then
made.

HAMMOND U. SMITH.
Will-Construction--Vested interest.
Where a will admits of a double construction in conse-
quence of events which subsequently happened, the
Court will give effect to that construction which will
nearest carry out what was apparently the intention
of the testator, had the event which raised the con-
struction not occurred.

This was a bill of discovery filed in aid of an action of ejectment brought by the plaintiff, Joseph Scott, for the recovery of a brewery and houses at Westminster. The bill stated the claim of the plaintiff as heir-at-law to Sir Andrew Chadwick, who was seised of the property in question, and died in March 1768; and it was alleged that the property was, at the time of Sir Andrew Chadwick's death, held of him on John Hill, by his will, dated in October 1810, beleases which expired in June 1826. To this bill the queathed the interest of 8001. Consols to Hester defendant, by leave, filed two pleas as to a portion of Fox, for life, and after her decease, to his cousin, the property; first, of a fine levied by Sarah Law, as Robert Smith, for his life, and after their decease heiress-at-law of Sir A. Chadwick, and -Taylor, bequeathed as follows:-"The said capital, or in Hilary Term, 20 Geo. 3; and, secondly, of the principal sum of all such money in the Three per Statute of Limitations. The first plea contained the Cent. Consols, that I may be possessed of or enusual averments in a plea of fine and non-claim, and titled to at the time of my decease, to the two said was accompanied by an answer denying that the children of my said cousin, namely, Robert Smith property was comprised in any of the leases alleged in and Ann Smith, equal share and share alike, if both the bill. The second plea was of the 3 & 4 Wm. 4, of them be living, or the whole to the survivor on his c. 27, and contained the usual averments in support or her attaining the age of twenty-one years; and of it. the reversionary interest of the said children shall Teed and Schomberg, in support of the pleas, cited become a vested interest, and transmissible interest Gait v. Osbaldiston (1 Russ. 158); Cholmondeley v. in them respectively at the age of twenty-one years." Clinton (Turn. & Russ. 107); Macgregor v. East- The testator died in 1814. Robert Smith, the India Company (2 Sim. 349), and Chadwick v. Broad-younger, died in the lifetime of the tenants for life of wood (3 Bea. 308 and 530). the fund, having attained twenty-one years of age, and assigned his reversionary interest to the plaintiff; and the question was, whether Robert Smith took a vested or contingent interest in the fund under the will.

Rolt and Welford, for the bill, contended that the plea of a legal bar to a bill of discovery was not good (Hindman v. Taylor, 3 Bro. C. C. 483; Mendizabel v. Machado, 1 Sim. 68; Robertson v. Lubbock, 4 Sim. 173; Bailey v. Sibbald, 15 Ves. 185; and Leigh v. Leigh, 1 Sim. 349); and that the statute not having been pleaded in the action of ejectment, it could not be pleaded to this bill. (Macgregor v. East-India Company, 2 Sim. 349.)

The VICE-CHANCELLOR said that he could conceive cases in which to a bill of discovery in aid of an action at law, the Statute of Limitations would not be a good plea. He was, however, of opinion that the present bill was so framed, that the second plea was a good plea to the extent it went, and must be allowed with costs. It was not, therefore, necessary to give any opinion as to the first plea, subject to the hearing of the defendant's counsel upon the question of costs.

The second plea was allowed, and no order was made as to the first.

Wednesday, March 25. ATTORNEY-GENERAL v. Gardner. Practice-Orders of August 1841. Jurisdiction or discretionary power of the Court, by the effect of the 8 & 9 Vict. c. 105, to relax the terms of the Orders of August 1841.

Russell and R. Palmer, on behalf of the plaintiffs in this case, moved that they might be at liberty to set down the cause for argument upon the objections taken by the defendants for want of parties, notwithstanding the expiration of fourteen days (allowed by the 39th Order of August 1841) from the filing of the respective answers. They cited Medhurst v. Allison (4 Hare, 479).

Rolt, for the defendants, contended that the Orders of August 1841 had acquired the force and effect of an Act of Parliament, and could only be varied or rescinded by two or more of the judges of the Court,

Romilly and Robinson, for the plaintiff, cited Perry v. Wood (3 Vesey, jun. 204), Brown v. Biggs (7 Vesey, jun. 279), Moral v. Sutton (1 Phillips, 533). Walker, for the defendant Ann Smith, who claimed the whole fund by survivorship, the last tenant for life having died, cited Cripps v. Walcot (4 Mad. 11), Faber v. Beverley (1 Collyer, 108).

cause being whether one T. A. of Evesham, in Worcestershire, from whom the lessor of the plaintif proved his descent, was the same person with one T. A. carrying on business in London as a haber. dasher in partnership with his brother twelve years before; a bill in Chancery, filed by that brother alone as a trader, was offered in evidence to shew the dissolution of the partnership; and the answer thereto, and another bill and answer in Chancery, in a suit in which a member of the same family w01 defendant, were offered as declarations with regard to the condition in life of that family. Held, inadmissible.

Ejectment, tried at the last Surrey Assizes before Lord Denman, C.J. when a verdict was found for the defendant. The lessor of the plaintiff claimed the property in question under a will, whereby it was devised to the male heir of Wm. Angel, the first pur chaser of Crowhurst, and he claimed as a descendent from the youngest son of John, the eldest son of Wm. Angel, the first purchaser of Crowhurst. The lessor of the plaintiff at the trial satisfactorily traced the family of the testator at Crowhurst down to Thomas, the sixth son of John Angel, who held the office of caterer or purveyor to the court until his death in 1670; and the question in the cause was whether the lessor of the plaintiff was the male heir of that Thomas. In support of his claim, the lessor of the plaintiff proved his descent from a Thomas Angel, who, in 1682, was married at Evesham, in the county of Worcester, and who, in the marriage register, was described as of Cleeve Priors, in the county of Worcester, a tailor, and about the same age as the Thomas Angel of Crowhurst. The cause turned entirely upon the identity of the Thomas Angel, so married at Evesham, with the Thomas Angel, descended from the testator; and in order to prove that they were the same person, a copy of an entry in the register of the parish of Evesham was produced, but the register itself was not produced. The entry was of the burial of that Thomas Angel, and contained, in addition to the usual entry, these words, "descended from Crowhurst." The witness who produced the copy of the entry was cross-examined as to the state of the original register, and stated that it was discoloured and crumpled. The counsel for the defendant, in his address to the jury, imputed frand to the entry, and commented upon the non-production of the original register, which he stated to have been in court; and the learned judge, in summing up the case, said that the entry appeared open to a good deal of suspicion; and that though he imputed no fraud to the present lessor of the plaintiff, they could not doubt that somebody had dealt with the register. It was proved that, in 1664 and later, Thomas Angel, the sixth son of John, had been in partnership with his brother Justinian as haberdashers; and in order to shew that that partnership had been dissolved, a bill in Chancery, filed in 1677 by Justinian alone, described as a haberdasher, against one Townroe, and his answer, were offered in evidence, and rejected as being the declarations of other persons, not on a question of pedigree. Upon the same ground were rejected the bill (filed 1701), and the answer thereto, in a suit of Angel v. Smith, offered for the purpose of shewing that Justinian and his family at that time had been in comparative poverty.

Shee, Serjt. now moved for a rule to shew cause why the verdict should not be set aside, and a new trial granted, on the grounds of the improper rejection of evidence and misdirection, and that the verdict was against evidence. First, the bill filed by Justinian is admissible, and evidence of the fact that at that time he was suing alone as a trader; and the declaration upon oath of Townroe, the defendant, was admissible to shew the condition of the parties at The VICE-CHANCELLOR.-The words "trans- that time; being made without any interest to mismissible interest," in the second clause in this will, represent, and on a matter analogous to a question must weigh strongly in the decision of this case for of pedigree. The same observation applies to the the plaintiff; the words used in the first clause are bill and answer in the second suit of Angel v. Smith; more flexible, and cannot be construed as shewing and although these documents do not come precisely an intention in the testator to deprive one of those within the rule upon which such declarations are parties who should attain twenty-one years of age, usually admitted, still they do fall within the broad marry, and have children; but in case he died in the principle upon which that rule rests. That principle lifetime of the tenants for life, his children should is, that the best evidence which can be obtained is to have nothing. To construe the will in that manner, be admitted. [COLERIDGE, J.-Then the letter of it must follow, that in case both Robert and Ann a deceased witness, giving an account of a transachad died in the lifetime of the tenant for life, there tion, would be admissible.] But this is so closely would have been an intestacy. I am strongly of connected with a question of pedigree, that the rules opinion for the prior construction, and that these of evidence applicable to pedigree cases ought to prechildren took a vested interest on attaining twenty-vail in this; and in pedigree cases nearly all the one years of age, and therefore give judgment in favour of the plaintiff, and order the costs to be costs in the cause.

evidence is hearsay,-inscriptions on monuments, entries in Bibles, and so forth; and the reason given by Gilbert (on Evid. 212) is, that no better evidence can be obtained. [COLERIDGE, J.-The evidence in pedigree cases is the exception; you are making it the rule. Besides, in pedigree cases evidence of reputation is received, although better evidence is also given.] In Gleadow v. Ätkin (1 Cr. & M. 424), Bayley, J. rests these cases upon the principle above mentioned. [He also referred to R. v. Erith (8 East, 542); Higham v. Ridgway (10 East, Ejectment-Evidence-Bill and answer in Chancery-120); Warren v. Grenville (2 Stra. 1129; 2 Selw. N.

Common Law Courts.
COURT OF QUEEN'S BENCH,

Tuesday, April 21.

DOE dem. ANGEL v. ANGEL.

Misdirection.

P. 754); Herbert v. Tuckal (T. Raym. 84); Lloyd In an action of ejectment, the sole question in the v. Wait (Turn. & Phill. 65); Monckton v. Attorney

General (2 Russ. & M. 156.)] Secondly, it was
a misdirection on the part of the learned judge
to tell the jury that there could be no doubt that
the register had been dealt with; the presumption
being that the entry was genuine, until impeached
by evidence; and, thirdly, the verdict was against
the evidence, because there was no evidence given to
impugn the authenticity of that entry; and taking
it to be genuine, the plaintiff's case was clearly made
out.
PATTESON, J.-I think my lord w: squite right in the
rejection of this evidence. First, a bill in Chancery was
offered, to prove that a certain partnership was dis-
solved; but how could it be evidence of that fact? It
is well settled that a bill in Chancery is no evidence
of the facts stated in it; and the reason is obvious; it
is the mere statement of counsel. Then the answers
are the declarations of strangers, which would not be
admissible on a question of pedigree, which this was
not; for the only question in the cause was one of
identity. I hardly understand the ground of misdirec-
tion. It might be a prudent course on the part of the
counsel not to put in the original register; but it was
certainly a course open to observation, considering the
extraordinary nature of the entry. Lastly, as to the
verdict being against the evidence, it was entirely a
question for the jury. On the one hand, certainly,
there were strong coincidences of time and age; but
on the other hand there were matters calculated to
excite suspicion; and all having been left to the jury,
I think we should not be justified in disturbing their
verdict.

WILLIAMS, J.-The argument of the learned counsel on the point of evidence amounts to this, that because there is a necessity for the evidence, therefore it ought to be given. Evidence of reputation in pedigree cases is admitted as an exception to the general rules of evidence, as ancient as the rule itself. It would be very dangerous if the commentary of the learned judge upon a case, not any misstatement of it, should be considered a ground for a new trial. As to the last point, I agree that the non-production of the original register, and the very unusual nature of the entry itself, meeting the very difficulty of the case, were circumstances of suspicion, which might properly weigh with the jury; and I must add that it is a remarkable fact that no intercourse should have been shewn between the two supposed branches of this same family; that the poor should have shewn no appetite for the rich during fortyfive years.

COLERIDGE, J.-If the entry were genuine, it would be conclusive of the cause; but I cannot agree that it must he taken to be genuine until the contrary was proved; there being circumstances to excite suspicion, I think it was quite open to the counsel for the defendant, or the learned judge, to comment upon them. As to the rejection of evidence, it is admitted that the evidence offered in this case did not fall within the general rule; because this was not strictly a question of pedigree; but it is contended that it comes within a principle, laid down much too broadly, that the best evidence which can be attained may always be given. The only doubt I have at all entertained was, whether the bill might not be received as evidence of the fact that the plaintiff had sued as a trader and alone; but, upon consideration, I think that that would be to receive the contents of a bill as evidence of a fact; which would certainly be wrong.

Lord DENMAN, C. J-I entirely agree with the rest of the Court as to the rejection of this evidence; and as to the point of misdirection, I doubt whether I used, without qualification, the words ascribed to me. I cannot agree with the learned counsel that every presumption was to be made in favour of the entry. That might be the case if it were an ordinary entry; but if the clergyman himself chooses to step out of his way and add to an entry the statement of a fact quite out of his knowledge, that alone would be sufficient to excite great suspicion against it. But here there were other circumstances. The disappearance of the family from Crowhurst was at the root of the case; but how can we tell that they did disappear, for from the register of that parish, 16 pages, from 1680 to 1701, had been cut out. And, further, there was a total absence of any evidence of intercourse or connection between the two alleged branches of the family from 1784 to 1837. In my opinion, the present state of the case is quite satisfactory; and ought to be so to all parties concerned. The case is perfectly dead and lifeless; it is not possible that any reasonable mind can now suppose that the lessor of the plaintiff has any connection with the family of William Angel, the first purchaser of Crowhurst.

Rule refused. ASSER V. WALKER. Contract for sale of shares through a broker-Principal and agent. A party who instructed a broker to buy shares for him, held liable to the party from whom the broker bought the shares, though the several contracts were made with the broker by name; and though, when applied to for his principal, he gave another name, as well as that of the defendant.

Assumpsit on an agreement to buy and accept ten

PATTESON, J.-The cases cited of colourable qualifications to kill game, &c. are distinguishable in this respect, that they are carried out by means of conveyances, which having a well-known legal operation, cannot be rendered so merely formal as the transaction in the present case. The other judges concurring, Rule absolute.

shares in the Oxford, Worcester, and Wolverhampton v. Brown, 1 Taunt. 381; Harmer v. Westmacott, 6
Railway. Breach the refusal to accept. Pleas; Sim. 284.)
1st, the general issue; 2nd, that the plaintiff was not Welsby, contrà, was not called upon.
ready and willing to transfer, &c. within a reason-
Lord DENMAN, C. J.-This is exactly the same
able time; 3rd, a denial of notice; tried before Cole-case as if the parties had said, "we will go before
ridge, J. at York, when a verdict was found for the witnesses, and pretend to buy and sell, but will really
plaintiff. It appeared that the defendant had in- not do so." Then if either party repents, and can get
structed Mr. Barr, a sharebroker at Leeds, "to buy peaceable possession of the thing given up, he has a
for him" the shares in question; but that the contract right to retain it. The only case at all at variance
between them was in these terms :-" 16th Oct. with this view is that of Montefiori v. Montefiori;
Bought of John Barr ten shares, &c." and "sold to where Lord Mansfield, C. J. said that "no man shall
Mr. Walker, &c. at so much per share, payable on the set up his own iniquity as a defence any more than as
16th day of Nov. &c." On the same 16th of Oct. Barr, a cause of action;" but in that case, the party who
acting under similar instructions, bought for one Hay had made the fraudulent representation was seek-
ten shares in the same railway on the same terms.ing to enforce a claim founded upon it; and I think
There was a similar contract between the plaintiff, that the authority must be limited to such cases.
who was also a sharebroker at Leeds, for the sale to
Barr of certain shares in the same railway. Barr did
not dislose the name of the plaintiff, and the question
was, whether there was any evidence to fix the de-
fendant with the liability; and whether Barr was not
the principal. When the period for transfer arrived,
an application was made by the plaintiff to Barr for
his principal; and he referred the applicant to Hay
as well as the defendant, saying that he might go to
either of them; and in the first instance the plaintiff
applied to Hay; but evidence was given that it was
the well-known practice of brokers during the cur-
rency of an agreement to deliver shares by a certain
time, to enter into several contracts for the sale of
them in the meantime, and not to disclose the name
of their principal until the close of the transaction.
Watson, Q. C. now moved for a rule to shew cause
why the verdict should not be set aside, and a nonsuit
entered, or for a new trial; first, because there was
no evidence to fix the defendant; and, secondly, on
the ground of misdirection. Barr was clearly the
principal; he was so treated in the written contracts;
there was no privity between the plaintiff and defend-
ant, as is clear from the fact, that when the plain-
tiff applied to Barr for his principal, the answer was:
"You may take your choice between the defendant
and another person." The learned judge, therefore,
ought to have told the jury that there was no evidence
against the defendant.

By the COURT.-It was a matter proper for the decision of the jury upon the evidence.

Thursday, April 23.

Rule refused.

Practice. Lord DENMAN, C.J. at the commencement of the argument in the above case, suggested a stet processus, which being declined, on the part of the plaintiff, his lordship added, that parties must fully understand that when they sought to set aside verdicts, they did so at the risk of paying costs, even though the verdict should be set aside. The Court reserved to itself the right of considering the circumstances of each case, and did not by any means treat it as a matter of course that if the verdict was set aside, the party succeeding would be entitled to his costs. Welsby, though the rule had been made absolute, consented to a stet processus.

Friday, April 24. CHRISTIE and OTHERS (Assignees) v. PICKFord. Trover by assignees of bankrupt. Goods in the order and disposition of the bankrupt. Trover for thirty chests of soap, by the plaintiffs, as assignees of a bankrupt.

Pleas: first, not guilty; second, not possessed; third, that plaintiffs were not assignees. At the trial before Tindal, C.J., (at the last Warwick Assizes the last issue was found for the plaintiffs; the two former for the defendant. It appeared that the bankrupt, before committing an act of bankruptcy, by TRIX AND WIFE . THORN. leaving the country, had ordered Messrs. Pickford, Frivolous demurrer-Replication in action on bond. the defendants, to deliver a large quantity of soap to M. Smith moved for a rule nisi to rescind an order the British Alkali Company; but that a portion reof Cresswell, J. setting aside the demurrer as fri-mained undelivered when he left; that immediately volous. The action was on a bond given to the wife, after he had left the country, one of the plaintiffs, a dum sola, conditioned for the payment of money by a principal creditor, requested Messrs. Pickford to take day certain, with a general breach. Plea: setting out possession of the remaining casks; and gave them the bond on oyer, and alleging performance generally. afterwards a written notice that they were his proReplication, assigning breaches; and special demurrer perty, and directing them to hold them to his use. thereto, on the grounds, first, that it did not appear Notice of the intention to open a fiat was also that the cause of action accrued before the commence. served upon them; but the defendants delivered the ment of the action, all the dates being under a vide-soap to the British Alkali Company, who were sublicet: as to which he cited Parkinson v. White-stantially the defendants in this action. There was head (2 Man. & G. 329); Skinner v. Lambert some conflicting evidence as to the question, upon (4 M. & G. 477); Tucker v. Webster (10 M. & whose behalf the defendants consented to hold the W. 371); secondly, that the replication was bad goods after the bankruptcy; and the learned judge for not concluding to the country: citing Roakes left that question to the jury. v. Manser (1 C. B. 531); Bush v. Leake (3 Doug. Humfrey, Q.C., on Saturday, April 18, moved for 255); and 1 Wm. Saund. 103, n.); thirdly, that a new trial, on the ground of misdirection, contendthe replication was double, in assigning a breaching that the goods in question were clearly in the of the condition to pay the principal together with the order and disposition of the bankrupt, at the time of interest, the principal and interest being separate debts: the bankruptcy, with the consent of the true owner; citing Dickenson v, Harrison (4 Price, 282.) and that that was a pure question of law, upon which Rule nisi. the learned judge ought to have expressly directed the STEWART U. WILKINSON. jury. Cur. adv. vult. Trover-Colourable sale between plaintiff and defendant.

In an action of trover for a heifer, upon a plea of not
possessed, an apparent sale and transfer of the heifer
from defendant to plaintiff having been proved,-
Held, that the defendant was at liberty to shew that
that sale and transfer was merely colourable, and that
the jury having so found, the verdict could not be dis-
turbed.

Trover for a heifer. Pleas: 1st, not guilty, 2nd,
not possessed. At the trial it appeaared that the
heifer originally belonged to the defendant, but that
an agreement had been entered into, which the defen-
dant contended was merely colourable, with a view to
its agistment on some common lands, for the sale of
the heifer to the plaintiff, and an actual transfer of the
heifer, and a payment of a sum of money as the price,
were, in fact, made. The jury, however, found that
the sale was merely colourable, and gave a verdict for
the defendant. A rule nisi having been obtained to
set aside that verdict, and enter a verdict for the
plaintiff, on the plea of not possessed, or for a new
trial,

Chilton, Q. C. and E. V. Williams now shewed cause, and contended that, though an agreement, fraudulent and colourable, will not operate against third parties, yet that a party to it could not avail himself of his own wrong, as a defence to an action. (Doe v. Roberts, 2 B. and Ald. 367; Brackenbury v. Brackenbury, 2 Jacob and W.391; Montefiori v. Montefiori, W. Black, 363; Curtis v. Perry, 6 Ves. 739; Steele

Lord DENMAN, C.J., now stated, that they had
consulted the Lord Chief Justice, and found that he
had left the case to the jury precisely as counsel
wished. There would therefore be no rule.
Rule refused.

Friday, April 24.
OLIVERSON . BRIGHTMAN.
BOLD v. ROTHERHAM.
Insurance.

A policy of insurance contained clauses permitting the
ship to go to any of certain ports mentioned, Canton
being one, with liberty to ship, transship, and re-
ship as should be necessary, and continuing the risk
until the ship reached the final port of destination.
The ship arrived at Hongkong when hostilities were
going on between the Chinese and the English; and
the cargo having been put on board a ship, not a car-
rying ship, the loss ensued.

Held, that this was a risk insured against. But, secus, where the policy did not contain the clause as to ship. ment, transshipment, and the acts done shewed that the removal of the ports was not a mere temporary and necessary removal, but intended to be a final removal from the ship, in which they had arrived. These were two special cases as to the liability of the underwriters upon two policies upon goods in the Penang. The question in each was, whether the goods had reached their final destination, according to the terms of the policy. The policy in the first allowed the vessel to go to any one of numerous ports mentioned (Canton and Hongkong being two of them),

Crowder, Q.C. shewed cause against a rule for produced before the magistrates. It is not so shewn. nonsuit obtained by Kinglake, Serjt. The point The case finds expressly that "the paper which purwas, whether an action for money had and received ported to be a certificate of chargeability appeared would lie, when, upon a settlement of accounts be- to be a copy; the signatures were copies, and the tween the parties, a sum had been twice allowed by place of the seal was marked with the letters L. S. mistake, but no money had actually passed between How, then, is it proved to be the certificate produced? them. Wharton v. Walton (4 B. & C. 163) was dis- It is no exhibit, as it is called, for it does not authentinguished, but ticate it as a copy, but is only a copy of certain words The COURT intimated that they felt a very strong attached to a certificate, which may or may not have opinion that the action could not be maintained, and been produced, pending the inquiry as to the settlethey deferred hearing the argument in support of the ment of these paupers. (Reg. v. Shipston-upon- Stour, rule. 6 Q. B. 119.) 2. The identity of the parties referred to in the certificate and those removed is in no way shewn. The mere fact that it is sent at the same time is nothing (Reg. v. Shipston-upon-Stour); nor is the identity of name any thing. (Reg. v. How, 11 A. & E. 159; Reg. v. Stockton-upon-Tees, 2 New Sess. Cas.) Then Reg. v. Tordoft (5 Q. B. 933) disposes of the cases cited as to intendment. So identity must always be proved when a previous conviction is brought forward against a prisoner.