Doe, d. Oxenden Plaintiff in Error v. Sir Arthur Chichester Defendant in Error [1816] UKHL 4

UKHL

Doe, d. Oxenden Plaintiff in Error v. Sir Arthur Chichester Defendant in Error

[1816] UKHL 4

REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session During the Session , 1816.

56 Geo . III.

ENGLAND.

ERROR FROM THE COURT OF KING'S BENCH.

No. 5

Doe , d d . Oxenden Plaintiff in Error v. Sir Arthur Chichester Defendant in Error

Feb . 22 , 25 ; June 12 , 1816 .

Subject_ EXTRINSIC OR PAROL EVIDENCE NOT ADMISSIBLE TO ENLARGE THE EFFECT OF THE TERMS OF A WILL.

Where lands at at or of of any particular place are devised, parol or extrinsic evidence is not admissible, to show that the devisor included under the description, and intended to pass, other lands not at that particular place.

And therefore where one having lands in the manor of Ashton, in Ashton parish, and also other lands in several of the neighbouring parishes, made his will, and devised lands under the description and name of “my estate of Ashton,”—and parol or extrinsic evidence was offered to show that the testator in his life-time was accustomed to designate the whole of the lands derived from his mother, including not only the estate at Ashton but also the lands in the neighbouring parishes, by the general name of his “Ashton estate,”—the House of Lords, concurring in the unanimous opinion of the Judges, held that the evidence had been properly rejected.

Ejectment.

This was an action of ejectment brought in the Court of King's Bench to recover possession of certain lands and hereditaments in the parishes of Crediton, Sandford, Netherex, and Cadbury, in the county of Devon, which the lessor of the Plaintiff claimed under the will of the late Sir John Chichester, as constituting part of the premises devised to him, under the description and by the name of

Page: 66 ↓

Whether under the words in a will, “my estate of Ashton,” extrinsic evidence is admissible to show the intent to pass other lands not in Ashton.

The cause was tried at the Assizes for the county of Devon in August, 1811, before Baron Graham, who rejected the extrinsic evidence, and a verdict was given for the Defendant. Whereupon a bill of exceptions was tendered, and duly sealed and signed. The evidence, as appearing on the bill of exceptions, was as follows:

The extrinsic evidence rejected below.

Bill of Exceptions.

Evidence.

Will, devising the Ashton estate to the lessor of the Plaintiff.

Evidence which was offered to show that the testator included under the description of “Ashton estate” lands not in Ashton.

It was proved for the Plaintiff, that “Sir John Chichester, Baronet (since deceased), was seized in his demesne as of fee, as well of the tenements in the declaration mentioned, and of the manor of Ashton, and certain other tenements and hereditaments, situate in the parish of Ashton, in the said county of Devon, all which he derived from his mother, as of divers other lands and tenements which he derived from his father, called the Youlston estate, that the said Sir John Chichester being so seized on the third day of September, in the year 1808, made and published his last will and testament, in writing, duly executed so as to pass real estates, in the terms following:

“ I give, my estate of Ashton, in the county of Devonshire, to George Chichester Oxenden, second son of Sir Henry Oxenden, Baronet, of Broome, in the county of Kent; I give my house in Seymour Place (for which I have given a memorandum <p style="text-align:right;color:#006600;background-color:white";><b>Page: 67</b>↓</p><page pagenum="67"/>of agreement to purchase, and which is to be paid for out of timber which I have ordered to be cut down) to the Reverend John Sanford, of Sherwell, in Devonshire ;”

and that the said Sir John Chichester afterwards, and before the said time when, &c. died so seized, without altering or revoking his said will. And it was further proved that the said tenements, in the said declaration mentioned, consist of the manor of Stowford, in the county of Devon, and of the tithes impropriate of the parish of Netherex, in the county of Devon, and two estates called Great and Little Bowley, in the parish of Cadbury, in the said county of Devon; that of the manor of Stowford one part lies in the parish of Crediton, in the said county of Devon, and the other part in the parish of Sandford, in the same county, the manor itself being distant from the parish of Ashton about twelve or thirteen miles; that the parish of Netherex is also eleven or twelve miles, and the parish of Cadbury fifteen miles, distant from the parish of Ashton. And it was also proved that the estate which the said Sir John Chichester so derived from his mother, and of which he was so seized at the time of making his said will, consisted as well of the tenements above particularly described, as of the manor of Ashton, the barton of Ashton, and other lands, lying within the parish of Ashton, and also of the manor of George Teign, which is situate in the said parish of Ashton. And it was further proved, (lease entry and ouster).—And in order to show that by

Page: 68 ↓

Page: 69 ↓

In the first page was contained a list of various payments made by the said John Cleave, among which was the following:

“ Paid a year's annuity to Broad Clist poor, to Christmas Paid a year's annuity to Broad Clist poor, to Christmas 1799, 23 l l . 11 s s .”

which said parish of Broad Clist was wholly distinct from the estates derived by the said Sir John from his mother, but the annuity was charged on part of the said estate. The second and third pages were entitled, “ Receipt of rack rents Receipt of rack rents ,” and contained an account of the rents of the several premises composing the estate, derived by the said Sir John Chichester from his mother, except the conventionary rents of the three manors in separate sums, but added up at the end in one general total. The fourth page contained a list of rents, entitled “ Conventionary rents of the manor of Ashton Conventionary rents of the manor of Ashton .” The fifth page contained a list of two other sets of conventionary rents, the one entitled “ Conventionary rents of the manor of George Teign Conventionary rents of the manor of George Teign ,” and the other entitled “ Conventionary rents of the manor of Stowford Conventionary rents of the manor of Stowford .” The last page of the said account was entitled ‘ Account stated Account stated ,’ and is as follows:

Page: 70 ↓

ACCOUNT STATED.

“ J. Cleave J. Cleave , Dr.

£ £

s s .

d d .

“ J. Cleave J. Cleave , Cr.

£ £ .

s s .

d d .

To receipt of rack rents…

1042

2 ⁄ 12

By balance due from J. Cleave.

470

4 ⁄ 12

To receipt, of conventionary rents of Ashton Manor

To receipt of George Teign Manor…

To receipt of Stowford Manor…

To balance of last account

102

£ £ 1178

4 ⁄ 12

£1178

4 ⁄ 12

And underneath is the following receipt, the signature to which is in the hand-writing of said Sir John Chichester.

April April 1, 1800, examined this account and received the vouchers thereof; and due from the said John Cleave, on the balance thereof the sum of examined this account and received the vouchers thereof; and due from the said John Cleave, on the balance thereof the sum of 470 l. Os. 4 ½d .

John Chichester.”

Judgment in K. B. for Deft.

Error brought.

Judgment having been given for the Defendant, the Plaintiff brought his Writ of Error returnable in the House of Lords, and assigned for error, in addition to the common errors, the rejection of the evidence set out in the bill of exceptions, to show the intent of the testator to pass the whole of his maternal property under the description of his Ashton Estate; and the Defendant rejoined in nullo est erratum in nullo est erratum .

Hearing in the House of Lords, Feb. 1816.

The cause came on for hearing in the House of Lords, on February 22, 1816, (the Judges attending.)

B. Max. Rule 23.

Beaumont v. Fell . 2 P. Wms. 140.

Dowsett v. Sweet , Amb. 175.

Sawyer instead of Swopper, Masters v. Masters . 1 P. Wms. 420, 425.

Qr Qr . Andrews v. Lemon .

Finch, v. Finch , 1 Ves. 534.

Heywood, Sergt Heywood, Sergt . (for Plt. in Error.) If it had

Page: 71 ↓

Page: 72 ↓

“On the whole I think we should go further in receiving this evidence than any case has yet done.”

If Dormer v. Dormer had been there cited, he would have thought differently. ( Lord Eldon Lord Eldon (C.) Has any one looked at the Register Book to see how far this report corresponds with it?) No. The rule he says is, “that evidence cannot be received if the will has an effective operation without it.” I say there is no such rule, and I could cite thirty cases against it. There is hardly a volume of Vesey without a dozen of them. The Chief Justice said:—

James James . The evidence was received. It is not expressly said in any of these cases, that it was necessary to receive the evidence in order to give effect to the will, which could not operate without such evidence. But although this is not said, yet the rule seems to hold.”

“I need not particularize the cases of devises, where there were two persons of the same name, and where the name by which the property was devised applied equally to two estates. Such was the case in P. Williams, of a devise to Gertrude Yardley Gertrude Yardley , by the name of Catherine Earnley Catherine Earnley . And the case in Ambler, of legacies to John John and Benedict Benedict , sons of John Sweet John Sweet , who had two sons, the name of the one Benedict Benedict , but the name of the other

Page: 73 ↓

I do not dispute that there are two classes of cases, and that in one of them parol evidence is not admissible, where the will has an effective operation without it. But then, where the words are capable of two meanings, both of them giving effect to the will, the question is which meaning is to take place; and what I complain of is the application of the rule to these cases. The present case is quite clear of locality. Though there were lands in four different parishes, if he used to call them the Ashton estate, the whole would pass. They may perhaps say that of of is equivalent to at at : suppose so for the sake of argument; yet after the case of Dormer in Finch, even the word at at does not exclude evidence to show that lands in different counties were comprised. And see whether at at is always a word of locality; for if it has two meanings, that must be given to it which best corresponds with the intent. Now suppose the testator had looked at Johnson's Dictionary, he would have found that at at meant near near , and using it in that sense the whole would be included. But, however, that point is decided by the case in Finch. The next case is that of Whitbread v. May , 2 Bos. Pull. 593., where one devised his estate at at Lushill, in Wilts, and Hearne Hearne , in Kent. The testator had lands in other parishes in Kent, as well as in the parish of Hearne, all which he had purchased by

Page: 74 ↓

Page: 75 ↓

Page: 76 ↓

“Parol evidence is admissible upon a latent not a patent ambiguity, to rebut equities grounded on presumption, and perhaps to support the presumption to oust an implication, and to explain what is parcel of the premises granted or conveyed.”

After that case and that of Pulteney v. Lord Darlington , we conceived that the matter had been settled, and that these must outweigh the authority of that one decision. It was stated before that, in all cases of election, evidence was admitted to show what subjects the words were to operate upon, though they might operate without such evidence. ( Lord Eldon Lord Eldon (C.) I thought our rules as to election had been settled. It must appear on the face of the will that the testator proposes that there should be an election, and as to what subjects.) In cases of election, a latent ambiguity in the will may be explained, even when the will might take effect without, as in Finch v. Finch , 4 Bro. Ch. Ca. 48; and Rutter v. Maclean , 4 Ves. 531. Almost half of the volumes of Vesey were cases of wills, where no such rule ever appeared, as that no evidence could be admitted unless the will was inoperative without it. No such rule was ever heard of till the case of Doe, d. Chichester, v. Oxenden , in C. B.

Lepiot, v. Brown , 1 Salk. 7.6 Mod. 199.

The same rules applied as well to persons as to things, Dowset Dowset or Dorset, v. Sweet , Amb. 175.— Harris v. Bishop of Lincoln , 2 P. Wms. 125. In the former case, legacies were given to John and Benedict, sons of John Sweet. There was no John, but James, and evidence was admitted to show that

Page: 77 ↓

Finch. 432.

Gaselee Gaselee (for Plt. in Error). In every case of latent ambiguity, you must have the evidence before the ambiguity appears. Where a testator bequeathed “the house I live in,” Doe, d. Clements, v. Collings , 2 T. R. 498. evidence was admitted to show what he occupied along with it; and the stables, coal-pen, &c. were held to pass, though he used these premises for the purposes of his trade, as well as the convenience of his house, and they stood over the way; and an indictment for burglary could not be sustained upon the ground of their forming part of the dwelling house; and see also the case of Pole v. Lord Somers , 6 Ves. 309. Now what is the evidence here? The declaration of the testator to the person who made his will, as to what he wished to have done. There is no question of locality, and it seems clear that the evidence may

Page: 78 ↓

Page: 79 ↓

Wyndham, v. Wyndham , And. 58. Godbolt. 16.

Pole, v. Somers , 6 Ves. 309.— Druce, v. Denison , 6 Ves. 385.

Doe v. Greening , 3 Maul. Sel. 171.

Doe v. Oxenden , 3 Taunt. 147.

Mr. Sergeant Pell Mr. Sergeant Pell (for Deft. in error). The question ultimately will be whether under the word Ashton Ashton estate, the manor of Stowford, &c. in other parishes passed. I do not impugn the rule stated from Lord Bacon's maxims; but before that can be brought in aid, your Lordships must be satisfied that there is a latent ambiguity, and when parol evidence is offered to show a doubt, there must be further parol evidence to clear up the doubt which has been raised. They offer to show that, besides the property in Ashton parish, the testator had other property which he sometimes included under the denomination of his Ashton estate, and they said that it necessarily followed that such other property passed under this devise. That however is by no means a necessary consequence, and therefore the collateral evidence, if admitted, would not clear

Page: 80 ↓

Page: 81 ↓

Dormer v. Dormer , Finch. 432.

Doe v. Greening , 3 Maul. Sel. 171.

Casberd Casberd (for Def. in Error). The property is described as consisting of different estates in four different parishes. The paternal property had an appropriate designation of its own; the maternal had no particular designation of its own; and the question is, whether evidence shall be admitted to show that the whole passed by a new designation affixed to it by the testator himself. This does not purport to be a devise of the whole maternal property, and it is submitted that it is not competent by evidence so to enlarge it. If it had been “my estate at at ,” instead of “my estate of of ” Ashton, by the modern decisions it is clear the whole would not pass. But we are pressed by the case in Finch. Taking it for granted that it is accurately reported, I submit it is not now law. If it is, then Doe v. Greening is not law. It was held there that, as the words had a precise meaning and were sufficient to satisfy the will, it should only operate on the particular subject of the devise; so that the case of Dormer is not law. But then it is said that this is distinguishable from Doe v. Greening , as the word here is not at at , but of of ; and that therefore this is not a local description. But it is admitted, on the authority of Johnson's Dictionary, that of of means concerning, belonging, to concerning, belonging, to . Then suppose the words here had been

Page: 82 ↓

Page: 83 ↓

Page: 84 ↓

Feb. 25, 1816.

Wyndham v. Wyndham , Godbolt, 16. And. 58.

3 Maul. Sel. 171.

5 Rep. 68.

Whitbread v. May , 2 Bos. Pul. 593.

2 T. R. 498.

2 Atk. 373.

3 Taunt. 147.

Heywood, Sergt Heywood, Sergt . (in reply). If subjects were known under one general name, they would all pass under that name though in different parts of the kingdom, and however distant from each other. I do not know that I cited any cases as to fraud, presumption, and satisfaction; but I did cite several cases of election to prove that there was no such

Page: 85 ↓

Page: 86 ↓

Page: 87 ↓

Dormer v. Dormer , Finch, 482.

Lord Eldon (C.) The case which your Lordships have just heard is of too much importance for you to proceed to judgment upon without the deliberate advice of the Judges; and I mean to conclude the few words which I now offer with a question, the answer to which will, I trust, bring that advice fully before you. In the mean time I shall endeavour to clear the question of such cases as one hears most of, not at law but in equity; and to begin with the case of Dormer, I have now before me all that is necessary to prove what was the meaning of that case; not only a copy of the Register's book relative to that case, but also Lord Nottingham's manuscript notes of what he himself conceived his decision to be.

The reporter seems to have copied the will from the bill; and the words in parentheses were understood by the judges to be the surmise of the party, and not words of the original will.

The report of that case stated that Dormer, the testator, was possessed of personal estate of considerable value, and entitled to a considerable real estate in Bucks, and also of estates in Hampshire and Sussex, formerly the Banisters. But Idsworth Idsworth in Hampshire, being the ancient seat of the family, he usually comprehended the whole of the Hampshire and Sussex estates under that name. He made his will in these words:— after some expressions of

Page: 88 ↓

“as to my temporal estate it is my will that after my mother's decease the interest of my estate at Idsworth”—and then in a parenthesis “(intending the whole Banisters) shall go towards payment of my debts, and afterwards towards raising my children's portions in manner following. First, I bequeath my eldest daughter Mary, 1500 l. item l. item to my two daughters, Margaret and Elizabeth, 1500 l l . to be divided between them. And if it shall please God that one of them die (meaning before twenty-one years or marriage) then the survivor to have 1000 l l ., and if both die (meaning as aforesaid) then it is my desire that 500 l l . part of the said 1500 l l . be given to my said daughter; 500 l l . to my son Robert; 500 l l . to my son William, and if it please God my daughter Mary die (meaning before twenty-one or marriage) then her portion to be equally divided amongst my surviving children.”

And then followed the material words, which were wanting in the printed Report, by which he devised the whole Banisters, or the estates in Hampshire and Sussex, to his son Robert, the debts and portions being first paid. The decree states “upon reading the depositions, &c.;” these were merely that the testator was of sound mind, memory, and understanding, and no other depositions were mentioned; and then it was held that the whole of the Banisters were by the will made liable to the debts and portions. Lord Northingham, in his notes written for his own use, states the points ruled in the case; and, as far as concerns the present case, the decision is—that where a testator devises his estate at H. for payment of debts and

Page: 89 ↓

Finch, 432.

Druce v. Denison , 6 Ves. 385.

Pulteney v. Darlington , 2 Ves. Junr. 544.

Pulteney v. Lord Darlington, 2 Ves. Junr. 544.

Andrews v. Lemon , by Kenyon, M. R.

Question to the Judges.

Your Lordships have heard cases cited as to presumption, satisfaction and election, and so forth. It is true that it is a rule that where a testator gives a legacy to his creditor equal to, or greater than, the debt, the presumption is that it is meant as a satisfaction of the debt. So where a person is bound by settlement to give a portion, and gives such a portion by will, it shall be presumed primâ facie primâ facie to be intended in satisfaction of the obligation. But evidence is admissible to rebut the presumption. That however is not admitted to alter the legal effect of the terms of the will, but only to show whether what is given by the will is not a satisfaction of that which is claimed by some other title. With respect to election, I decided the case of Druce and Denison, and stated that the subject as to which the election is to be made must be clearly described in the will. I there too stated my opinion of the decision in Pulteney v. Lord Darlington . But, with that case and the other authorities before me, I thought it right to decide as I did, subject to any review in case it should be deemed fit to attempt to shake these authorities, unless the parties felt that there was some weight in another observation, that the paper there in dispute was of such a testamentary species that it would be received in the proper Court as part of the will: and if so, there would be

Page: 90 ↓

Page: 91 ↓

“whether the evidence tendered is such as according to law ought to be admitted for the purpose for which it is offered.”

Judgment, June 12, 1816.

Gibbs Gibbs (Ch. J.) (delivering the opinion of all the Judges). This case arose upon an action of ejectment, brought to recover possession of lands and hereditaments, claimed under the will of the late Sir John Chichester, as devised, under the name and description of the devisor's “estate of Ashton.” The ejectment was tried before Baron Graham, when certain evidence was offered on the part of the plaintiff which the Judge thought inadmissible; and thereupon a bill of exceptions was tendered, and sealed and signed by Baron Graham; and in that bill of exceptions the evidence is stated upon which the question arises.

The will of Sir Arthur Chichester runs in these words:

of Devonshire, to George Chichester Oxenden, second son of Sir Henry Oxenden, Baronet, of Broome, in the County of Kent: I give my house in Seymour Place, for which I have given a memorandum of agreement to purchase, and which is to be paid for out of timber which I have ordered to be cut down, to the Rev. John Sanford, of Sherwell, in Devonshire.”

“I give my estate of Ashton, in the county will

Page: 92 ↓

Whether of of or at at Ashton makes no difference.

The ejectment was brought to recover lands situate in the county of Devon, but not in Ashton; and it was insisted that under these words, “my estate of Ashton,” the testator intended to comprehend these lands, though not in Ashton, and that they passed under the will of the devisor. And evidence was tendered to show that the testator, in conversation and otherwise, comprehended under the name and description of his estate of Ashton, not only his lands in Ashton, but other lands, or the whole of the estate which he derived from his mother, and that he spoke of his paternal estate as his Youlston estate. And the question submitted was, whether extrinsic evidence could be received to explain the devise, and to show that it included lands not situate at Ashton; for we are all agreed that there is no distinction between of of and at at , and that it makes no difference whether the words are “my estate of of Ashton,” or “my estate at at Ashton.”

Where lands at or of a particular place are devised, extrinsic evidence is not to be admitted to show that the devisor meant to include lands not in that place.

I do not state the particulars of the evidence, as the question is, whether any evidence at all can be admitted to explain the bequest. We are all agreed, as I have stated, that “my estate of of Ashton” and my estate at at Ashton,” are words of the same import, and the question then is, when lands at a particular

Page: 93 ↓

Extrinsic evidence to explain a will admissible only where an ambiguity is raised by extrinsic circumtances.

And then such evidence is admissible only because it is necessary in order to give effect to the will.

The Courts of law have been jealous of the admission of extrinsic evidence to explain the intention of a testator; and I know only of one case in which it is permitted, that is, where an ambiguity is introduced by extrinsic circumstances. There, from the necessity of the case, extrinsic evidence is admitted to explain the ambiguity; for example where a testator devises his estate of Blackacre, and has two estates called Blackacre, evidence must be admitted to show which of the Blackacres is meant; so if one devises to his son John Thomas, and he has two sons of the name of John Thomas, evidence must be received to show which of them the testator intended. And so also if one devises to his nephew William Smith, and has no nephew answering the description in all respects, evidence must be admitted to show which nephew the testator meant by a description not strictly applying to any nephew. The ambiguity there arises from an extrinsic fact or circumstance, and the admission of evidence to explain the ambiguity is necessary to give effect to the will, and it is only in such a case that extrinsic evidence can be received. It is of great importance that the admission of such extrinsic evidence should he avoided where it can be done, that a purchaser or an heir at law may be able to judge from the instrument itself what lands are or are not affected by it.

Here the devise is of all the devisor's estate at Ashton; for there is no difference between of of and

Page: 94 ↓

Dormer v. Dormer , Finch, 432. The reporter has confounded the facts of that case with the surmise of the parties.

Facts and grounds of decision of the case of Dormer in Finch, 432.

We were pressed a good deal by the case of Dormer in Finch, where it was stated to have been determined that by a devise of lands at Idesworth, lands out of Idesworth were also intended and included in the devise. There is some obscurity in the case as reported. The statement appears to have been transcribed from the bill, and the reporter has confounded the surmise of the parties with the facts of the case. The facts in substance are these; Dormer died possessed of personal estate of considerable value, and seized of real estate in Buckinghamshire, and also, of real estates in Hampshire and Sussex, formerly called the Banisters, and Idesworth, the family-seat in Hampshire, was part of the Banisters estate. By his will he directed that the rents of his estate at Idesworth should go to pay debts and raise children's portions. In Finch it is stated thus:

raising my children's portions, &c.”

“It is my will, that after my mother's decease, the interest of my estate at Idesworth (intending the whole Banisters) shall go towards payment of my debts, and afterwards towards

Page: 95 ↓

The words intending the whole Banisters intending the whole Banisters , the statement being taken from the bill, are only the suggestion of the party. The fact is merely that he directed that the interest of his estate at Idesworth should go towards payment of debts and portions. In a subsequent part of the will he directs that his son Robert shall have the Banisters, the debts and portions being first paid. It was certainly a question in that case, whether the whole Banisters estates were affected by the debts and portions; and the object of the bill was so to charge them. The answer was, that, under the will, the estate at Idesworth only could be affected by the debts and portions, while on the other hand it was insisted that it was the testator's intention to include the whole Banisters. To make that case applicable to the present however, it must appear that extrinsic evidence was received to show the intention. But, instead of that, the contrary appears; for the evidence of the only two witnesses examined in that case was confined to the sanity of the testator at the time of making his will. The Lord Chanchellor does indeed determine that the whole Banisters were affected; not because of evidence admitted to show that it was the testator's intention, nor because it appeared in any way to be his meaning to include the whole under these words “my estate at Idesworth,” but because in another part of the will the testator gives the whole of the Banisters to Robert his son, or brother, after the payment of the debts and portions after the payment of the debts and portions , which showed the intention of the testator, that the whole Banisters should be charged. So far then as that case is an authority, it amounts

Page: 96 ↓

Having removed that case out of the way, we are all of opinion, that there is nothing to impugn the general rule, that, unless in cases where there is a latent ambiguity, parol or extrinsic evidence is not admissible to explain a will.

Lord Eldon (C.) When this case was argued at your Lordships' bar it was contended for the plaintiff, that the extrinsic evidence ought to have been received; and that if it had been received the verdict would have been clearly for him: and for the defendant it was contended that the evidence ought not to have been received, and was properly rejected; and that, though it had been received, it did not follow that the verdict ought to have been against him.

Whether in case the evidence had been received the verdict ought to have been the one way, or whether it ought to have been the other way, are questions with which your Lordships need not trouble yourselves, provided you concur in the opinion delivered by the Judges. Speaking for myself, I have only to say that such is clearly my individual opinion, and that, upon the question that this judgment be reversed, I shall vote that it be affirmed.

Judgment affirmed affirmed .

Solicitors: Agents for Plaintiff in error, Harman and Newby.

Agents for Defendant in error, Anstice and Cox.