1866. HUBBARD V. LEES. legislature has in effect said, "whereas formerly three witnesses were required to a devise of real estate, and many powers of appointment by will of real estate were required to be attested by three witnesses, henceforth two witnesses only shall be necessary, unless the donor of the power shall require a greater number." Here the donor of the power, knowing that two witnesses only are required for a will, has thought fit to make three witnesses essential to the due execution of the power by will. West v. Ray (a) decided that where the donor has made certain required solemnities essential to the due execution of the power, the case does not fall within the 10th section of the 7 Wm. 4 & 1 Vict. c. 26. [Bramwell, B.-A power to appoint by any writing is within the Act, because a writing comprehends a will; but a power to appoint by any writing under hand and seal is not within the Act, because a will does not require a seal.] The statute does not operate to prevent the donor of a power from requiring whatever solemnities he may think fit. MARTIN, B.-I am of opinion that this rule ought to be discharged. It is unnecessary to advert to all the matters which have been discussed, because the letter of the defendant brings down the pedigree to John Moore, the grandfather of the plaintiff. It seems to me that, apart from the entries in the Testament, there is distinct evidence of the heirship of the plaintiff to George Hewitt Lander. But a question has been raised whether the Testament was admissible in evidence. Now, although the case was not submitted to the jury, the evidence was before them, and the rule is that if parties adduce evidence they must stand or fall by it; if the evidence was not admissible a (a) Kay, 385. EASTER TERM, 29 VICT. new trial will be granted; for it is impossible for the Court to say on what particular piece of evidence the jury may have found their verdict. But I am of opinion that this Testament was admissible in evidence. It was proved by a witness to have been in the possession of Fanny Wells, and to have been given by her to her half brother, as her grandfather's book. It came from the proper custody, and there is no ground whatever for saying that it was not admissible in evidence unless the handwriting was proved; for if the handwriting could be proved there would probably be no occasion to resort to such evidence. It is because the entries are so old that it is impossible to prove the handwriting the Testament becomes evidence. To require proof of the handwriting would be to say that no such document shall be admissible in evidence. Entries in a Bible are in the nature of a record; and if it comes from the proper custody the entries are presumed to have been adopted by relatives cognizant of the facts. For the same reason, I am also of opinion that the letters were admissible in evidence, for they were documents which came from the custody of a member of the family, and by them the fact is recognised that Ann Lander was the aunt of Fanny Wells. Then with respect to the question arising upon the execution of the power of appointment, I am clearly of opinion that the case falls within the 10th section of the 7 Wm. 4 & 1 Vict. c. 26. What the legislature meant to express by that section is this:-"We are aware that powers of appointment may often be exercised by will, and we are also aware that the power must be executed in strict conformity with the instrument which created it; but inconvenience and mischief will probably arise in consequence of the donee of a power supposing that the ceremonies required for the execution of a will are sufficient for the 1866. HUBBARD v. LEES. 1866. HUBBARD V. LEES. execution of a power by will; we therefore enact that henceforth, whenever a power may be executed by will, it shall be sufficient if executed in the manner required for a will by this Act, although some additional form or ceremony is required by the instrument which created the power." That is the plain meaning of the 10th section, and its effect is that mere matter of form, so far as practicable, is dispensed with. There is nothing whatever in our judgment which in the slightest degree conflicts with the decision in West v. Ray. For these reasons I am of opinion that there is no ground for a new trial either upon that point or the others which have been discussed, and that the rule must be discharged. BRAMWELL, B.-I am entirely of the same opinion. The only observation which I think it is necessary to make is as to the letters. It is argued that the effect of our decision will be that the bare preservation of any letter or document by any person will be equivalent to a declaration by that person of the truth of every statement contained in it. But we do not lay down any such general proposition. These letters have no circumstances of suspicion about them. They are addressed to a relative, and contain statements with respect to the family; and I think that the fact of such relative having received and preserved them is some evidence of relationship, that is, that Ann Lander was the aunt of Fanny Wells. Rule discharged. 1866. KRAMER v. WAYMARK. May 1. M. CHAMBERS, on a former day in this Term, had An action for obtained a rule calling on the plaintiffs (sic) to shew cause the Murphy now shewed cause.-First, the Court will not stay proceedings if error could not be alleged. Here it could not, since judgment has been signed within the time personal within the c. 76, s. 139. Therefore, where the such an action plaintiff in died between verdict and judgment, Held, that judgment signed within scribed by the time pre th that section was regular. The Court refused a new trial, although the damages would probably have been less if the the plaintiff's proximity of been foreseen. death had 1866. KRAMER v. WAYMARK. prescribed by the 17 Car. 2, c. 8, s. 1 (a), and the 15 & 16 Vict. c. 76, s. 139 (b). It will be argued, no doubt, that the operation of these enactments is confined to such causes of action as would survive to the representatives of the deceased. But, the language of the legislature being perfectly general, there is nothing to warrant so restricted an interpretation. Upon the construction of the 17 Car. 2, c. 8, s. 1, there are two authorities, but they are directly in conflict. In Ireland v. Champneys (c) it was held by the Court of Common Pleas that final judgment entered up in an action of libel after the death of the plaintiff was irregular, the Court holding that the case was not within the statute. But in the later case of Palmer v. Cohen (d), the plaintiff having died between verdict and judgment, it was expressly decided that the statute applied to an action of libel, and the Court refused to set aside a judgment entered up by the executor. [Bramwell, B.-After the decision in Palmer v. Cohen (d) I do not see how we can stay proceedings. The defendant, if so advised, must bring error.] Secondly, as to the new trial. [Bramwell, B.-If the event had been foreseen, there would have been smaller damages.] Damages having been fairly assessed on a balance of events, what has since occurred affords no ground for interference. M. Chambers (Beasley with him), in support of the rule. (a) The 17 Car. 2, c. 8, s. 1, enacts:-"For the avoiding of unnecessary suits and delays, &c : That in all actions, personal, real or mixt, the death of either party between the verdict and the judgment shall not hereafter be alleged for error, so as such judgment be entered within two terms after such verdict. (b) The 15 & 16 Vict. c. 76, s. 139, enacts:-"The death of either party between the verdict and the judgment shall not hereafter be alleged as error, so as such judgment be entered within two terms after such verdict. (c) 4 Taunt. 884. (d) 2 B. & Ad. 966. |