be still due if already assigned. Without saying there was perjury, the debt could not be a debt due to Hunter if the deed had assigned it. The only parties as yet were the three ordinary garnishee parties—the judgment creditor, the judgment debtor, the garnishee. Within less than two months, Edward Hunter presented his petition to the Insolvent Court. On the 27th June, 1861, James Hunter filed an affidavit as cause. I don't know what it was; for whatever reason the proceedings were in abeyance (I believe a stay of execution) for a year. Then Miss Goodfellow moves to make absolute the conditional order. The garnishee appears in Court; the assignees move to set aside the garnishee order, not then the judgment. In that state of things the order of the 4th July was made, every portion of which is material. Did Miss Goodfellow then revert to her title upon the deed? No; but still stood by the judgment. The order pro Queen's Bench, and one out of the Court of Exchequer. Execution issues, which a creditor who holds another judgment thinks fraudulent, as suppose with directions not to be executed until another execution is issued. That party has a right to bring an action against the sheriff for a false return. If the money has been brought into Court, it used to be a common proceeding to direct the other execution creditor to bring an action for money had and received, and in that trial determine the question of fraud. It appears to me as of course that if two parties claim money in Court, we must determine the right. The property did not pass to the assignees by the insolvency, as Hunter had not a beneficial interest. Unless by the fact of taking these garnishee proccedings this woman has estopped herself, she is entitled to go back on her deed. What is there to estop her? The legal estate is still in Hunter. If so it is so for her benefit. She gets a judgment to secure the same debt. She makes an affi-ceeds: "It is ordered by the Right Hon. Judge Keogh davit. She does not state her own assignment. There is no perjury or falsehood in that. Neither in my opinion is there any estoppel. In the old Term Reports are many cases which say that property in mortgage can't be disposed of in execution. We think the true construction of the order made, and the order we now should make, if that order was not made, was to put in a common law train of inquiry the question whose is this money. If Miss Goodfellow is estopped, that can be put forward as a defence in an action. It can be put upon the record, not for an ex parte decision, which is not subject to appeal, but in such a way as can be corrected if erroneous; but let us not take upon ourselves on an interlocutory motion, from which there is no appeal, to decide that this money should go to the assignees. This is the opinion of the majority of the Court and the order will be—No rule on the present motion without prejudice to renewing the motion when by an action the question is tried. that the cause be disallowed, and the order be made absolute." This is the second time Miss Goodfellow gets a judicial proceeding. The Court had staring in its face the proceedings of the assignees, and could not pay the money as it would have done to Miss G. As there was no proceeding yet to set aside the judgment, the Court directed the money to be kept in Court to abide the result of a motion to set it aside. [His Lordship read the order.] In my humble opinion, the only possible interpretation which can be put upon that order is, that the Court ordered the money to be kept to abide the motion to be made by the assignees. No other question was then before the Court but the claim of Miss G. and the claim of the assignees. It would have been a very idle and ridiculous proceeding for the assignees to go set up the other title, the title under the deed. It is said they knew of it. Miss G. did not set it up. The Court had before it only the two. If one or other claim had been disposed of, the Court would at once have ordered the money to be paid over. It therefore CHRISTIAN, J.-It is with no small amount of misgiving that I differ from the majority of the Court. My grounds will best appear by a review of the proceed-plainly stayed its hand, abiding the motion then diings. On the 25th of May, 1861, Miss Goodfellow was in this position. She had two assurances, under one or the other of which she might make available this debt due by the one Hunter to the other Hunter. She had the deed, which I have never seen, but from what I have heard it seems the debt was assigned by it to secure an antecedent debt with others. That was one of the assurances; the other was the judgment, which, upon the 25th May, 1861, was entered upon a warrant of attorney. On one or other she might have got possession of this debt. If the first was valid, the other was out of the question. On the other hand, if for any reason the deed was invalid, then the judgment by means of the garnishee clauses, offered her the means of attaching it. She was plainly put to her election. She had better than any one else the means of knowing which she ought to stand by. She knew whether the deed would bear the light, and with that knowledge she and her advisers deliberately elected to proceed under the garnishee clauses. She did not bring forward her claim to attach any surplus remaining of that debt, but to attach the debt. She said as distinctly as if in so many words, "the deed is null and void so far as regards that debt," for it could not rected to be brought forward. An order on this con- pressed upon us? We ought to have set aside the aside without more ado this judgment, and in further judgment, and we ought to do so now. What would execution have handed over the money to the ashave been the next step? In my humble opinion, we signees. It is not necessary to say if the Court was ought to have followed this up by paying the money seized of this fund in a plenary way, how the Court over to the assignees. The Court had not jurisdic- would treat a third person. If it were necessary, I tion to do otherwise. I consider this money was in have great difficulty in seeing that Miss G. was in the a position analogous to goods in the hands of the she- same position as a third person. She had made a riff. A garnishee proceeding is only a new execution. claim. She had claimed in a particular right till In an interpleader proceeding, if it be ascertained that judgment is given against her, and then turns round the foundation on which the plaintiff claims fails, it is the upon her other title. A party has no right to deal duty of the Court to hand the property to the party to out his titles one after another legal and equitable. whom it would go but for the interpleader proceedings. Suppose the deed had been found against, and the asThe money could not have been given back to the gar- signees had come to claim the money, could Miss G. nishee, because he was discharged. The only persons to be heard to say, "I have my real title in reserve. I whom it could have been given, remitting the parties as tried the judgment, and I failed on that; I tried the near as possible to the position they would have been deed, and I failed on that. These were mere expein if the erroneous proceeding had not been taken, riments. I will now bring forward my real title, and were the assignees. This is analogous to the case of I ask to have the validity of that ascertained." Whea fieri facias. Suppose this a bill of sale of goods to ther, therefore, there be an estoppel, she ought to Miss G. Suppose she obtains a warrant and judg- have been held once for all to make her case, and held ment, and issues a writ of fi. fa., treating the goods to abide by it; but that is not necessary to consider, as his not hers, and in the meantime H. becomes in- because I rely on the strict analogy of an interpleader solvent, and the sheriff obtains an interpleader order order. I am of opinion that we ought to have set to determine whether the goods are the property of aside both the judgment and the order. It is said the execution creditor, an order directing the exe- we can't do that because of what has happened since cution creditor to bring an action, would the Court the order of the 8th November. I don't see that at try upon that the validity of the bill of sale? all. The order was of some use on what we did'nt Clearly not; it would try nothing but the validity of want, the 333rd section; but on the 334th section the execution. But to make it more analogous, sup- the Court had ample grounds for setting aside the pose she held out to the last to her execution, and is judgment. Are we bound to persevere for ever in a beaten, and that on this the assignees come to claim course of error-to force these parties to drink to the the money, would the Court allow Miss G. to say-dregs the cup of litigation we have mixed for them? it is true the proceedings directed have proved the What, it is said, ought to be done about the costs of nullity of my judgment, but I have another title, and the action? Both parties were more or less in the will send the parties upon a new career of litigation? wrong, if my opinion be wrong, but if I am right, the No; the argument of Miss Goodfellow's counsel ap- Court was itself wrong, and we ought not to have pears to me to assume that the office of the Court is made the order directing that action. We ought to to determine in a plenary way the property in this direct a stet processus on the action, and give the costs fund. It is not any such thing. The analogy is comof it to neither party. plete. The garnishee order is the execution. The order of the 4th July is the interpleader order. I have a case which I will refer to, though the facts do not make it an authority-Shingler v. Holt (7 H. and N. 65); a woman claimed goods which were seized by the sheriff, and the usual order was obtained. On the trial it appeared that the woman was a married woman, who left her husband, and was living with the exccution debtor. The defendant's counsel submitted that the goods belonged to the plaintiff's husband. The judge says I am not here to try questions of property but the question of the validity of the execution. There was a motion to enter a verdict for the defendant on the ground that the goods were the plaintiff's husband's. The court said No; if the parties had objected this they should have got him made a party. Baron Bramwell says, "the issue was framed in the ordinary way, to try whether the goods were the goods of the plaintiff as against the execution creditor, and a verdict was found for the plaintiff. defendant now asks that a verdict may be entered for him on the ground that something, which the plaintiffs did not go down to try, shows that the plaintiff's title was defective." This exemplifies what the nature of this proceeding is. When the case was before us on the 8th November, we ought to have set The KEOGH, J.-I will just say this, which may have escaped general attention, that the order of the 8th November, 1862, which has been questioned, was made by the entire of the Court. Court of Exchequer. No Rule. [Reported by Oliver J. Burke, Esq., Barrister-at-Law.] Pleading-Amendment-Action for fraudulent con- A count in the summons and plaint which complained "that the defendant was possessed of a grey mare called Polly, which, as defendant well knew, was unsound, and the said defendant, by the fraudulently concealing from the plaintiff that the said mare was unsound, induced the plaintiff to buy the said mare for £59, which the plaintiff paid the defendant, whereby the plaintiff lost the said £59," Ordered to be amended by inserting between the words “un sound” and “induced," the words following, "and of the facts which constitute the misrepresentation representing to him that it was sound." 66 should be set forth-Reddock v. Kavenagh (3 I. C. L. 584)—the mere selling of an unsound horse does not give the person to whom it is sold a right of action against the vendor-Hil v. Ball (2 Exch. Rep. 299); there the declaration stated that the defendant was possessed of a glandered horse, and knowing the horse to be affected with that disease, caused the horse to be sold by auction, and the plaintiff, believing the horse to be sound, became the purchaser, and paid, therefor, a certain sum, and said horse was put into a stable and infected another horse of the plaintiff's which soon after died, and it was held the declaration disclosed no cause of action, and Bramwell, B., there says, The rule "caveat emptor as reasonably applies to the sale of an unsound horse as to any other sale. This is not a count for fraudulent misrepresentation, and it fails as a count for fraudulent concealment, for the count is vague and uncertain, it does not specify what description the concealment was of-was have stated that the defendant representing to the plaintiff that the horse was sound, induced the plaintiff to buy same, this it omitted to do; the plaintiffs have exactly followed an erroneous precedent given in the first edition of Bullen and Leake, p. 196, which has been altered in the second edition, p. 291. Wall, Q.C., and Forbes Johnson, contra.—The gravamen of the action is for misrepresentation and the concealment of an unsoundness; Bramwell, B., in delivering judgment in Horsefall v. Thomas (10 Weekly Rep. 652), says it is an old rule of law caveat emptor, but if there be a flaw latent in the article sold which cannot be known or discovered by any inspection on the part of the purchaser, the vendor is bound to disclose it, though it is otherwise if patent.-If there be no cause of action disclosed in the count objected to, the course should have been to demur. [Hughes, B.-Have you any objection to state it in the manner given in the second edition of Bullen and Leake, p. 291?] None whatever, on the terms of the defendant paying the costs. THIS was an application to set aside as vague and uncertain the first count of the summons and plaint, which was as follows, Victoria, &c.,-Blenerhassett David Thompson, the defendant, is summoned to answer the complaint of Frederick Lattin Fitzgerald, who complains that the defendant is indebted to the plaintiff in the sum of £60, for that the defendant was possessed of a grey mare called Polly which, as defendant well knew, was unsound, and said defendant, by then fraudulently concealing from the plaintiff that the said mare was uusound, induced the plaintiff to buy said mare for £59, which the plaintiff paid the defendant, whereby the plaintiff lost the said £59." There was a second conut "for that the said defendant, by warranting a certain other mare to be then sound, sold the said mare to the said plaintiff, yet the said mare was not sound, whereby said mare became of no use to the plaintiff, and he incurred trouble and ex-it active concealment or passive? The count should pense in causing it to be examined, and in keeping it, and in endeavouring to induce the said defendant to receive it back, and the said plaintiff afterwards re-sold the said mare for a less sum than he paid the said defen dant for it, and incurred expense of said re-sale there fore," &c., dated 7th December, 1863. The defendant having been served with the above plaint, applied as follows by notice to plaintiff's attorney-" Take notice that, inasmuch as the defendant is ignorant what are the circumstances relied on by the plaintiff, as constituting the fraud in the first count of the plaint, I hereby require you, on or before Thursday next, to furnish us with the particulars of the said circumstances: dated 15th December, 1863." To this the plaintiff replied that, on the 21st of December, "the fraud of which the plaintiff complains of is, that the defendant knowing, and having before him conclusive evidence that the mare was unsound, and of which the plaintiff was ignorant, represented to the plaintiff that the mare was sound, and effected the sale to him on that representation. The application now made to the Court was, that the first count of the plaint be set aside as embarrassing, same being vague and uncertain and contrary to the Common Law Procedure Act 1853, as not stating the fact constituting the ground of complaint, and, further, because the particulars furnished on the 21st December last contradict and are inconsistent with the ground of complaint in the said first count, the particulars complaining of active misrepresentation, the plaint of fraudulent concealment, and further that if a false reresentation be, as it appears to be from the said particulars, the ground of suit, it should have been so averred in the plaint, in order that there might be an issue knit on the pleadings, and it does not state with suffi. cient clearness wnat the fraudulent concealment was so to raise the question between the parties. And further, that there was no ground for departing from the common and well known form of pleading in ac tions for false representation. Dowse, Q.C., in support of the motion.-The first count is for fraudulent concealment, while the complaiut, in the particulars furnished on the 21st December, is for active misrepresentation; the particulars | Costs to be costs in the cause. Costs-Executors and residuary legatees in a former will failing to set aside a later will-Executors put forward in support of legacies for charities-Costs of next of kin, also, legatees-Costs of trial-Court fees-Refreshers to counsel. Where executors and residuary legatees under an earlier will impeached a later one, on the grounds of incapacity of the testatrix, and undue influence and fraud practised upon her, and not only failed to sustain those pleas, but were themselves by the evidence plainly guilty of fraud and contrivance in the preparation of the earlier will, they were con demned in the costs of the suit, though they were put forward to sustain charitable gifts in that will. Next of kin being also legatees under such fraudulent will, and not impeaching it, but impeaching the last will, which was decreed for refused costs. But next of kin, not being legatees in and impeaching such will, allowed the costs of the pleadings, &c. But under the circumstances, the Court considering it unnecessary for their protection to appear, none of the next of kin were allowed the costs of the trial of the issue. Where final judgment is postponed after argument, additional court fees on the day of the delivering of judgment are necessary, and also refreshers to "counsel. Walker with him) for the plaintiff.-We don't ask for costs, but we say that the plaintiffs should not be made to pay any. The plaintiff, Mrs. Gamble, was residuary legatee in the will which they put forward, and she was also a legatee for £1,000 in the will alleged by the defendant. The defendant admitted the validity of the will and codicil alleged by the plaintiffs, who, in reality were put forward by the persons interested in the charities, who, not being corporations could not intervene; besides, the sudden departure from the will of September, 1862, and the last will being a death-bed will, were grounds for excusing the plaintiffs from costs. Dr. Walshe, Q.C., and Exham, Q.C., for the several next of kin asked for costs: some of the next of kiu had by pleading impeached both the wills relied on by the plaintiffs and the defendant, and others (Logan and wife) had only impeached the last. Mitchel v. Gard (vide supra). Cur. adv. vult. 24th February.-KEATINGE, J.—It appeared that the deceased, Miss Anne Drummond, was a very old lady, aged about eighty-six. Her brother, the late Alderman Drummond, had died in March, 1862. By his will he left a sum of £20,000, for the purpose of establishing a school for the orphan daughters of soldiers and the residue of this estate he left to his sister, Miss Anne Drummond for life, with a power of appointment as she should choose by will; and his will also contained some legacies which were not to be paid until after his sister's death. This will also appointed John Robinson and James Robinson his executors. The property to which Miss Drummond thus became entitled was estimated to be about £8,000 or £9,000, but the exact amount is not material. THIS case came before the Court now for final judg Between Alderman Drummond's death and January, ment. The plaintiffs had propounded a will of the 1863, the deceased had made four wills; one in June, deceased, Miss Anne Drummond, dated the 9th Sep-1862; one in August, 1862; and the two now in tember, 1862, and a codicil to it, dated the 20th issue in this cause. By the first, the one in June, September, 1862. The defendant, in his plea, p10-1862, (which is lost) she left several legacies, and pounded a will of the deceased, dated the 21st day of January, 1863. Several next of kin had been cited and had appeared, and had in their pleadings impeached both the will and codicil, relied on by the plaintiff, and also the will alleged by the defen dant. The substance of these wills and of several other wills of the deceased, as well as the pleadings will be found sufficiently detailed in the judgment of the Court. The case had been tried during Term before the Court and a special jury, when a verdict was found in favour of the validity of the will alleged by the defendant, . e., the last will. appointed Messrs. James and John Robinson executors and residuary legatees. That will was prepared by Mr. James Robinson, Q. C., who was a very intimate friend of Alderman Drummond. The second will dated the 12th August, 1862, was also prepared by Mr. James Robinson from her instructions, and was duly executed. She told him on both occasions, that neither of such wills was intended by her as a final disposition of her property, and she often said, that she intended a good residue for him and his brother John. The will of the 12th August, 1862, contained more legacies than the former one, and The Solicitor-General (Whiteside, Q. C., and Dr. gave the residue to James and John Robinson, and Townsend, with him) now applied for the costs of appointed them also executors. James Robinson was the suit against the plaintiffs, on account of the present at the time of the execution of both of those charges of frand made in their pleas against the wills. At the time of the making of the second will, defendant Robinson, in which they had not only enJames Robinson was about going abroad, and in contirely failed, but the case appeared at the hearing to versation with Miss Drummond, he recommended her be one of gross fraud on the part of the plaintiffs. to employ Mr. Keys, a solicitor, an old friend of the In such cases the costs are always given against the Aldermau, if she wanted a new will or codicil. Those unsuccessful party. Mitchel v. Gard (33 L. J. Prob. wills, though not in issue in this cause, are, in my 7); Clayton v. Davis (33 L. J. Prob. 28); Summer-judgment, all important. It is said that on 9th of hill v. Clements (32 L. J. Prob. 33 & note). September, 1862, when James Robinson had gone Dr. Ball, Q.C., (Serjeant Sullivan, Q. C., and abroad, the deceased executed a will in which the names of either James Robinson or of John Robinson do not appear, either as executors or legatees, and that will is propounded by the plaintiffs, Mrs. Gamble being named in it as the executrix and residuary legatee. The will propounded by the defendant of the 21st January, 1863, being later in date must be established, unless the plaintiffs prove that the later one ought not to prevail; if they do not, the will of the 9th September, 1862, must fall to the ground. The plaintiffs as executors have a locus standi in this Court to require proof in solemn form of the last will, and accordingly the issue was directed to try the validity of that will, and that issue having been found against the plaintiffs, the general rule would seem to follow, viz.: that they should pay the costs of the suit, unless there is something special to exempt them. Executors in an earlier will have not the same protection in this Court as regards costs, as next of kin; still, cases have frequently occurred where executors named in an earlier will, which has been condemned, have not only not been condemned in costs, but have been allowed costs. These were all cases where the transaction was fair, or in the infirmities or frauds of which the executors had no concern, where they had no personal interest, and where it was impossible for them without further inquiry to say, whether the later will should prevail or not, and where the Court could not without a trial come to a satisfactory conclusion as to the document which should regulate the succession to the property. In this case it appears to me, on the few facts that I shall notice, that unless the Court is prepared to give the costs of the suit against the plaintiffs, it cannot in any case give costs to executors against parties, who seek to establish an earlier will. If the will of September, 1862, and its codicil were the fairest transactions that ever existed, the deceased, if of a com petent mind, and fairly dealt with, had a perfect right to alter them, and make any disposition she pleased, however inconsistent with the earlier documents. Looking at the wills of June and August, 1862, and of January, 1863, I find one pervading object in them all, viz.: to make the Robinsons her executors and residuary legatees. Then, how did the will of the 6th September, 1862, come to be executed? James Robinson went abroad soon after the execution of the will of August, 1862, and the legacy of £20,000 given by Alderman Drummond to found an institution for the orphan daughters of soldiers, was the subject of a Chancery suit, instituted in order to establish the validity of and to carry into effect that charitable gift. The opinion of eminent counsel had been taken on the validity of that bequest, and his opinion was that it was perfectly valid, and Miss Drummond frequently expressed her anxiety that it should be carried out. If that gift were not valid, the amount of it would sink into the residue, and Miss Drummond would have had power to dispose, not of £8,000 or £9,000, but of £28,000 or £29,000. As gross and scandalous a fraud as I ever knew, was perpetrated in this case, by parties who, the moment that James Robinson's back was turned, misrepresented to the deceased, that the legacy of £20,000 was invalid, that the opinion of counsel that it was valid was only obtained in order to enable James Robinson to tell her that it was valid, and that his object was by misrepresenting to and misleading her as to the amount of her property, so, to become with his brother the owners of the legacy of £20,000, in addition to or as part of the residue. The direct effect of that misrepresentation was to exclude altogether the Robinsons from the will of September, 1862; they are named in it neither as executors nor residuary legatees. I regret to say that the will of September, 1862, was prepared from written instructions in the handwriting of a clergyman well known, and I believe, greatly respected, but now in his grave; and I am willing to suppose, that if he were now here, some light might be thrown on this transaction, and that we could separate him from the fraud which was practised. But whoever the parties were who were con cerned in that transaction, it was founded on a fraudulent misrepresentation; so much so, that even if the last will of January, 1863, were not in existence, and had never been executed, the Robinsons would have a perfect case under the will of August, 1862, and would be in a condition to get probate of it. I am unwilling to go into all the particulars of the management and contrivance, by means whereof the will of September, 1862, was obtained from the deceased; it is not necessary for me to do so, dealing, as I am now, only with the question of costs; but it is indispensable to notice, that in the entire transaction we have fraud-secret correspondence between Mrs. Gamble and the attorney who was employed to draw the will, suggestions as to it being executed at the of fice or town lodgings of the country attorney, as it would not be safe to have it done in the deceased's house, as Dr. Nolan who was the attending physician was absent on a foreign tour, and who, I collect could have been got, as they thought, with another gentleman, to witness the document; but Dr. Nolan was on a foreign tour; suggestions also that it was unsafe for Mrs. Gamble to leave the house. In fact the will was executed at the town lodgings of the country attorney, who drew it, and every step in the transaction was clandestine. This clandestinity as to the execution of this will is a very remarkable feature. In every step, there was concealment and secrecy, private communications, and letters backwards and forwards. In some, Mrs. Gamble refers to the legacies to the next of kin; they were to have been originally £200-then £300, and Mrs. Gamble suggests to the attorney that she would prefer that they should get £500, and they accordingly get £500. Further, a sum of £500 is given to a Mr. Shaw, whom the deceased knew not, and who is appointed trustee and executor, and to whom the will is, when executed, given. On Mr. James Robinson's return from abroad, he called on Miss Drummond, when Mrs. Gamble and the Rev. Dr. Fleury were present. This was after the execution of the will and codicil. He was received very coolly and he asked what was the meaning of it: to which Mrs. Gamble replied, that Miss Drummond wanted information about the amount of her property. That led to inquiry, and the result was that very soon Miss Drummond's eyes were opened, and she saw the fraud that had been practised upon her, and the Robinsons, and she determined to make a new will. Now, it is important to notice, that Dr. |