The attorney on behalf of the appellant objected to the production or admission of the deed. The appellant did not call any witnesses. The attorney for the appellant stated that the appellant, being the tenant of the land in question, could not be a trespasser, and could not be convicted under the said information for trespass in pursuit of game; and that therefore the information should be dismissed. He also contended on behalf of the appellant, that it was not shewn that the right of killing game was reserved by the landlord, and he objected to the admission of the deed produced by Mr. Garnett. The justices were of opinion that there was sufficient evidence before them, without the production of the deed, to shew that Mr. Garnett had the exclusive right of shooting the game, the appellant not producing any evidence to the contrary, and that the appellant had pursued and destroyed game on the land in question. They gave their determination against the appellant, and convicted him, being of opinion that the variance, if any, between the information and the evidence, and any defect of form in the information, was such a variance and defect as is provided for in sects. 1 and 9 of the 11 & 12 Vict. c. 43; and being also further of opinion that the appellant had not been deceived or misled. The following is a copy of the conviction : to wit. "County of Warwick, Be it remembered, that on, the 16th December, 1864, at Tamworth, in the said county, Richard Barker is convicted before us, the undersigned, two of her Majesty's justices of the peace, acting in and for the said county, for that he, the said Richard Barker, on the 7th September, 1864, at Kingsbury, in the county aforesaid, being then and there the occupier of certain lands there situate as tenant thereof to the Right Hon. Sir Robert Peel, and not having the right of killing game on the said land, but the said right then and there exclusively belonging to Charles Garnett, Esq., the lessee of the said Sir Robert Peel, his landlord, did then and there pursue, kill, and take certain game, to wit, one partridge, upon the said land, without the authority of the said Charles Garnett as aforesaid, contrary to the statute in such case made and provided. And we do adjudge that the said Richard Barker shall for the said offence forfeit the sum of 27., being the sum of 11. for the pursuit as aforesaid, and after the rate of 11. for the head of game so killed and taken as aforesaid, and shall forthwith pay the said sum, together with the sum of 14s. for costs. And that in default of immediate payment of the said sums, he, the said Richard Barker, shall be imprisoned and kept to hard labour in the house of correction of the county of Warwick for the space of two calendar months, unless the said sums shall be sooner paid. Given," &c. of variance between it and the evidence, was amend able, under sects. 1 and 9 of the 11 & 12 Vict. c. 43. [Hs was then stopped as to this point.] Secondly, that the evidence adduced at the hearing of the information was sufficient to support the conviction. Waddy, for the appellant.-The right of shooting over the land in question was, prima facie, in the appellant, the occupier; and this right, the offence charged being a criminal one, should have been dis proved by strict and incontrovertible evidence. O the contrary, there is nothing to shew that the appellant was cognisant of the right claimed by the lesse under the deed. Secondly, the right of shooting can not pass unless by deed; the deed, therefore, should have been in evidence. (Thomas v. Fredericks, 19 Q. B. 775; S. C., 11 Jur. 942). In Taylor on Evidence (p. 660, 1st ed.), it is said-" All incorporeal rights, whether they amount to an interest in land or not, lie in grant, and as such can neither be created, nor assigned, nor surrendered, except by deed." White, in reply. BLACKBURN, J.-Where the offence charged is criminal one, we should be fully satisfied as to the suf ficiency of the evidence; and in the present case I of opinion that it was insufficient. The charge appears to have been one under sect. 12 of the act, and the prosecutor, who claims the exclusive right of shooting, not having produced the deed, has failed to prove his claim. If the tenant had brought an action agains him of trespass, he would in such case have been bound to furnish strict proof of his right, in justification of the primâ facie wrong; and the same necessity exists in the present case, the rather that, in asserting his claim, he charges an offence against the appellant. SHEE, J., concurred.-Conviction quashed. COURT OF COMMON PLEAS. [Before ERLE, C. J., WILLES, BYLES, and SMITH, JJ.] Deeds, documents, and bank notes are not ordinary luggage for an attorney on a professional journey, and la cannot recover from a railway company for their less, unless declared or insured. Declaration, for that the defendants were carriers of passengers and their luggage by railway from Shrews bury station to Machynlleth station for hire; that the plaintiff became a passenger for hire, to be safely and securely carried by the defendants from Shrewsbury station to Machynlleth station with his luggage, ta The questions of law arising on the above state- wit, a portmanteau, containing divers goods, deeds, ment for the opinion of this Court, were-first, whether and documents, and Bank of England notes, of and there was sufficient evidence given before the justices belonging to the plaintiff; the said luggage to be de to enable them, in point of law, to find that Mr. Gar-livered to the plaintiff on his arrival at Machynlleth nett possessed the exclusive right of shooting over the land in question; and, secondly, whether the appellant, being the tenant of the land, was in law liable to be convicted under the information before them. If the Court should be of opinion that the said conviction was legally and properly made, then the said conviction was to stand; but if the Court should be of opinion otherwise, then the said information was to be dismissed. F. Meadows White, in support of the conviction, contended, first, that the offence charged was one under either sect. 12 or sect. 30 of the 1 & 2 Will. 4 c. 32, and that the information, if informal, or in case station. Breach, that the defendants conveyed the plaintiff to Machynlleth station, yet they did not safely and securely carry his luggage and deliver t to him on his arrival there, but through their negli gence the said luggage was for a long and unreasonable time detained and lost, and not delivered him till long afterwards; and the plaintiff says, that the object of his said journey on the occasion afore said, being to produce the said deeds and documents It appeared that the deed was executed in the presence of an attesting witness, who was not called, and was on that account objected to. 10 at a certain county court about to be holden, to wit, at Machynlleth aforesaid, on the trial of a certain cause to be tried thereat, wherein the plaintiff was attorney for the defendant therein, he, the plaintiff, was unable, by reason of the premises, to produce the said deeds and documents at the holding of the said county court on that occasion, and the trial of the said cause was in consequence thereof necessarily adjourned to the then next court, whereby the said journey of the plaintiff on the occasion aforesaid, and the expense thereof, became wholly useless, and the plaintiff was put to much trouble and expense, and lost much time in endeavouring to obtain delivery of the said luggage. Pleas-first, not guilty. Secondly, a denial of the bailment. Thirdly, except as to the claim for the portmanteau, that the goods were within the Carriers Act, 1 Will. 4, c. 68, and were above the value of 10., and were not declared or insured. Fourthly, that the defendants are the corporation, incorporated by the act of the 9 & 10 Vict., intituled An Act to consolidate the London and Birmingham, the Grand Junction, and the Manchester and Birmingham Railway Companies;" and the defendants say, that under and by virtue of the statutes relating to them, the defendants, the plaintiff, as such passenger, as in the first count mentioned, was entitled to have a certain weight of his, the plaintiff's, ordinary luggage, carried by the defendants with the plaintiff, without paying any reward for the carriage of the same, except the hire and reward payable for the carriage of his, the plaintiff's, person, which was payable by him, whether he had or had not any ordinary luggage to be carried with him by the defendants. And the defendants say, that the said luggage in the declaration mentioned was, by the plaintiff, brought with him and delivered to the defendants when the plaintiff became such passenger as aforesaid, as his, the plaintiff's, ordinary luggage, to be carried by the defendants with the plaintiff as his ordinary luggage, according to the said statutes, without the plaintiff's paying for the same as aforesaid; and the defendants accepted the said luggage as the plaintiff's ordinary luggage, to be by them carried as the plaintiff's ordinary luggage, without charging the plaintiff, or receiving from him any reward, except the said hire and reward, which was so payable as aforesaid. And the defendants say, that the said luggage was not the plaintiff's ordinary luggage, and that they had not, before or at the time when they received the said luggage, noticeable knowledge that the said luggage was not his ordinary luggage, and that he never paid, or offered to pay, any reward for the carriage of the same, except as aforesaid. Issue was joined on these pleas, and the plaintiff demurred to the third plea. The cause was tried by Byles, J., at the Sittings in London after Hilary Term, when it was proved that the plaintiff was an attorney practising at Maidstone, and had been instructed, in July, 1863, to appear for a client in a suit in which the client was the defendant at a county court at Machynlleth, in Merionethshire, and that it was necessary for the plaintiff to attend the county court in person, and to produce a certain deed and some other documents necessary for the purpose of the trial of the suit; that the plaintiff accordingly, on the 19th July, proceeded to the Euston station of the defendants' railway, and took a ticket to Shrewsbury; that the plaintiff's portmanteau, which contained the deed and other documents, and 607. in bank notes, was directed "Mr. Phelps, Passenger, Machynlleth," and was taken into the defendants' station at Euston, and delivered to a servant of the company by the plaintiff, to be placed in the train; that on the plaintiff's arrival at Machynlleth the portmanteau was not to be found; that the suit came on to be tried in the county court the next day, and the plaintiff obtained a postponement; that the plaintiff was afterwards compelled to pay 50l. into court on behalf of his client, or submit to a judgment against him; that after the delay of some days the plaintiff proceeded to London in search of his portmanteau, and found it at the lost luggage office of the defendants' company, at the Euston station. The jury found a verdict for the plaintiff, for the sum of 447. 1s., if the plaintiff was entitled to recover for the detention of the deeds, documents, and bank notes; to be reduced to 207. if the plaintiff was not entitled so to recover. 201. Kemplay obtained a rule to reduce the damages to Huddleston and Prideaux now shewed cause.-The Carriers Act only applies where goods are lost. It does not apply where damages are asked for delay. The only defence that can be set up is the Companies Act, 9 & 10 Vict. c. cciv, which provides that passengers may carry with them ordinary passengers' luggage, varying with the class by which they travel. The question is, therefore, what is "ordinary luggage?" Ordinary luggage must be the luggage which a person ordinarily carries with him, and which, of course, varies with the rank or with the calling of the passenger. A casket of jewels would be ordinary luggage for a lady of rank and fashion, or a medicine chest might be ordinary luggage for a doctor, a wig and gown for a barrister, and a deed and legal documents would be "ordinary luggage" for an attorney. In The Great Northern Railway Company v. Shepherd (8 Exch. 30), Parke, B., says, "Luggage, according to the true modern doctrine on the subject, comprises clothing, and such articles as a traveller usually carries with him for his personal convenience; perhaps even a small present, or a book for the journey, might be included in the term." This question has been considered in the American courts, and baggage has been held to include personal ornaments. A watch has been held to be personal luggage, and so have a pair of pistols, and even money in a trunk, provided it be bonâ fide for travelling expenses. So, here, the bank notes may have been intended to be used on the journey. There was no evidence as to this one way or the other. Then it will be said that the loss of the deed was a damage too remote to be recoverable. [They cited Hearn v. The London and South-western Railway Company (10 Exch. 793); Cahill v. The London and North-western Railway Company (10 C. B., N. S., 154); Hadley v. Baxendale (9 Exch. 341); Smeed v. Foord (1 El. & El. 602); and Story on Bailments, 441, 7th ed.)] Kemplay, in support of the rule.-The question is, what is the meaning of the words "ordinary luggage?" It must mean the luggage a person takes for his own use, and cannot be extended to property a person may take for another person's use. ERLE, C. J.-I am of opinion that the rule ought to be made absolute. The question is simply this— whether an attorney can recover damages for the detention of goods which he has with him when travelling, such goods being not his personal luggage, and not even belonging to him, but are carried by him in a professional capacity, to be used in a court in which he was to act as the advocate of another, or in respect of money which he carried with him for the purpose of carrying on the suit. I am of opinion that both articles fall within the same description. They are neither of them articles which he carries with him as personal luggage. It is true, that what may be an article of personal use to one may be quite unnecessary to another. But it is clearly only for articles of a personal character that a railway company can be held responsible for delay. The articles for the detention of which damage is here claimed were certainly not of a personal description. WILLES, J.-I am of the same opinion. BYLES, J.-Specialties and securities, even if they belonged to the plaintiff, could not be personal luggage. SMITH, J., concurred.-Rule absolute. COURT OF EXCHEQUER. EASTER TERM. 18 | did what is usual under such circumstances-he allowed the goods to be used as before; but that does not affect his rights. Suppose, instead of impounding them on the spot, he had removed them to a distance, it could not be said they were in the bankrupt's possession. I think there is no difference in the present case. PIGOTT, B., concurred. MARTIN, B.-To make a case of fraudulent preference it must be shewn that the bankrupt's act was voluntary. I know of no case where a sale has been held to be a fraudulent preference. The question for the jury was, whether the assignment was made ou pressure; and I thought the case was governed by Smith v. Toppings (5 B. & Ad. 674), where it was held, that the demand made by the creditor put an end to [Coram POLLOCK, C. B., MARTIN, BRAMWELL, and the operation of the statute. As to the goods re PIGOTT, BB.] SACKER, Assignee, v. CHIDLEY.-April 18. "Possession, order, and disposition" of bankrupt. Goods belonging to a third person, which are on the premises of a bankrupt under a distress for rent by his landlord, are not in the possession, order, and disposition of the bankrupt, although he is allowed to use them off the premises. Trover for a horse, brougham, and harness. Pleas -not guilty, and not possessed. This cause was tried at the London sittings after Hilary Term, before Martin, B., and where it appeared that the horse and brougham in question were the property of one Brown, a livery-stable keeper, who was indebted to the plaintiff to the amount of 607. In consequence of repeated solicitations from the plaintiff, Brown assigned to him the horse and brougham, with the harness belonging to them. While the goods were still on the premises of Brown, the landlord of the house put in a distress for rent, and soon after Brown became bankrupt. The landlord, during the distress, allowed the horse and brougham to be let as usual, with his permission. By this means the plaintiff got them into his possession, pretending to hire them for the day. He took them away to another livery stable, where they were seized by the assignees of Brown. The jury found a verdict for the plaintiff; and M. Chambers, Q.C., now moved to set it aside, on the ground that the judge should have directed the jury that the assignment to the plaintiff was a fraudulent preference, and that the goods were in the possession, order, and disposition of the bankrupt. He argued, that as the bankrupt could at any moment have taken the goods out of the landlord's hands by paying the rent, they were really in the bankrupt's power: citing Fletcher v. Manning (12 M. & W. 571, judgment of Parke, B.) and Barrow v. Bell (25 L. J., Q. B., 2). POLLOCK, C.B.-These are more questions of fact than of law. The present case resembles that of goods on the premises of a bankrupt, seized by an officer of excise; and in that case the real owner of the goods is not to be prejudiced during the time they were in the hands of the excise officers. BRAMWELL, B.-The first question is a question of fact. The jury have found in favour of the plaintiff, and my Brother Martin is not dissatisfied with the verdict. As to the second point, the law clearly is, that to entitle the assignees the goods must be in the possession of the bankrupt at the time of his bankruptcy. Now, here the foundation of the whole case is, that they were not; they were in the possession, order, and disposition of the distrainor. It is true the distrainor maining in the possession of the bankrupt, the act of Parliament which relates to this subject may be a useful measure; but in such a case it takes the property of one man to pay the debts of another, and the In this case there is no difficulty. The goods cannet words which compose it must be construed strictly. be said to have been in the order and disposition of the bankrupt, for they were in the custody of the law. Rule refused. [Coram POLLOCK, C. B., and MARTIN, B.] Statute of Frauds-Agreement in writing-Substituting one contract for another. The defendant having agreed, by a properly signed agree ment, to buy 500 piculs of cotton, at 1s. 5d. per from the plaintiff, and the plaintiff not being able to furnish the whole number, he offered 420 piculs to the defendant, which he agreed to receive:-Held, that the plaintif might recover on a count for goods bargained and w because the contract to take the 420 piculs was in part performance of the contract for the 500, and might be proved by the written agreement for the latter. This was an action tried before Mellor, J., at the Liverpool Spring Assizes. The declaration contained a count for goods bar gained and sold, and a special count for not accepting cotton according to contract. It appeared at the tris on the 14th April, 1864, a contract was entered into for the sale by the plaintiff to the defendant of piculs of China cotton. The bought note signed by the defendant was in the following form: "I have this day bought of you five hundred pics China cotton, at seventeen pence per lb., June or July delivery, 1864, guaranteed fair; marks to be given when the cotton is ready for delivery. In case of dispute arising out of this contract, the matter to be referred to two respectable brokers for settlement, wh shall decide as to the quality, and the allowance, if any, to be made. The cotton to be taken from the warehouse, with customary allowance of tare and draft, and the invoice to be dated from the date of notice. being given that the cotton is ready for delivery. Ta be delivered in merchantable condition to the buyer; the damage, if any, to be rejected, providing it can not be merchantable. Payment within ten days from date of invoice, or before delivery if required, equal to cash in ten ten days and three months." During the same month of April the defendant resold to a sub-purchaser. The plaintiff, not having himself cotton to fulfil his contract, on the 24th June purchased of Messrs. Whittaker, Whitehead & Co. & quantity equal to 420 piculs for that purpose, and received from them a delivery order for it afterwards. 19, 19,7 On the 25th June he gave the marks to the defendant. TRINITY TERM. contract, which was for 500 piculs, was not performed; but although that was true, and it was true that the Notice that this cotton was ready for delivery was plaintiff was never ready and willing to perform that Subsequently given. On the 4th July the plaintiff re- contract in toto, so that no action could be maintained ceived from Messrs. Whittaker, Whitehead, & Co. no- for that quantity, yet there was a smaller quantity tice that the cotton would be weighed, and he sent this offered by the plaintiff this did not constitute a new notice to the defendant, who indorsed it on the sub-contract, but was an offer to make part performance urchaser. The weighing took place, but neither the of the old. Now, I am clearly of opinion that there lefendant nor the sub-purchaser attended. On the was evidence of the defendant agreeing to take the th July the defendant, on behalf of the sub-pur- smaller quantity.—Rule discharged. haser, applied to the plaintiff, and received a sampling rder, and samples were taken accordingly. An inoice was then sent in to the defendant, but objection eing taken to the quality of the cotton, the defendnt requested a reference to two brokers, according to he contract. The matter was referred accordingly, ad they awarded that a certain allowance should be ade on account of the damaged portion; and an inbice was accordingly sent in, making the allowance Farded, to which the defendant made no objection. On the 7th July, Messrs. Whittaker, Whitehead, & 0., not having been paid for the cotton by the plainff, placed a stop on it, in the dock company's wareuse, where it lay, which stop continued till the 2nd ecember. The cotton remained in the dock wareuse, and was never transferred into the defendant's me. The defendant never took away or applied for e cotton; and on the 24th October the plaintiff's atrney wrote to the defendant, demanding payment r the price. Upon these facts, the jury found a verdict for the aintiff for the full price of the 420 piculs, on the ant for goods bargained and sold, leave being rerved to the plaintiff to move to enter a nonsuit, on e ground that there was no evidence of any contract accept less than 500 piculs. Brett obtained a rule nisi accordingly; against which, E. James and Crompton shewed cause, contending hat the plaintiff was entitled to recover under the ount for goods bargained and sold, because the Staite of Frauds had been complied with, and there was > need for delivery and acceptance. Brett and A. Peel, contra, contended-first, that the ntract being for 420 piculs, there must be a delivery id acceptance to satisfy the Statute of Frauds (and at there had been none); for that, secondly, there as no agreement in writing to satisfy the statute; e original agreement was for 500 piculs; the subseient sale of 420 was a new and distinct agreement. was as much different as if it had been an agreeent for a larger quantity than the first, or for a antity not one-eighth of the first. On these grounds e plaintiff cannot sue, and there must be a nonit. POLLOCK, C.B.-I think this rule must be discharged. he verdict of the jury is, that the defendant accepted e lesser quantity offered by the plaintiff. I cannot ty there is no evidence to support this finding, and herefore the verdict must stand. [Coram POLLOCK, C. B., MARTIN and CHANNELL, BB.] SAUNDERS and WAINE v. MEREWETHER and Another. -May 26. Estoppel-Recitals in deed. A., mortgagor, and B., mortgagee, before the passing of the 22 & 23 Vict. c. 35, jointly demised to J., with a proviso that either might re-enter if J. assigned withou the consent of the mortgagor. Various assignments took place with A's consent. Before the expiration of the term, A. and the last assignee jointly conveyed to the defendant by a lease, reciting the former one, and containing a condition, that A. should re-enter if the premises were assigned without the mortgagor's consent:-Held, that the second lease did not create an estoppel on the defendant, to prevent him shewing that A. was not the reversioner; and, therefore, A. could not enforce the condition. This was an action in ejectment, brought by the mortgagee and mortgagor to recover possession of a public-house called "The Saddle Inn," situated in the London-road, Liverpool. By an indenture, dated the 26th April, made between Tyrer of the first part, the mortgagee, Waine, of the second part, the mortgagor and Johnson of the third part, the Saddle Inn, which was held by the lessors, under the corporation of Liverpool, for a term of years, was demised to Johnson for twenty-one years. The lease contained a proviso, that if Johnson, his executors or administrators, should at any time during the continuance of the demise assign, let, or underlet the said premises, or any part thereof, then it should be lawful for the said Tyrer or Waine, or either of them, to re-enter; and it was further provided, that "Johnson, his executors or administrators, may at any time during the said term let the said demised premises for the residue, or any part of the said term, to any good, respectable, and responsible person, of whom Waine shall approve in writing." After several mesne assignments, each made with the consent of Waine, and before the passing of the 22 & 23 Vict. c. 35, the term became vested in Reid. By indenture of the 4th October, 1854, between Reid of the first part, Waine of the second part, and the defendant of the third part, reciting the lease of the 20th April, 1849, and the several assignments that MARTIN, B.-I am of the same opinion. I think had taken place, and that Reid was under a covenant his is a plain case on examination. No difficulty not to assign without the consent of Waine, Reid rises with respect to the stop-order, for it was not put conveyed the premises to the defendant, and the den till the 27th July; if, after that time the defendant fendant covenanted not to assign the premises withad demanded his cotton and failed to get it, a ques-out Waine's consent; and it was further provided, ion might have arisen, but this did not take place; that if the defendant, his executors or administrators, The defendant never attempted to obtain possession of should at any time during the said term demise, ast. The matter upon which the trial turned, and sign, or in manner part with, the possession of all or which is now called in question, is of a prior date, the any part of the premises, for all or any part of the ate of the invoice, as to which the learned judge term thereby assigned to any person or persons, withasked the jury whether there was any evidence that out the license or consent in writing of Waine first property had passed so as to support the count for obtained, that then it should be lawful for Waine to goods bargained and sold. The objection is, that the re-enter," The defendant afterwards did assign the premises without Waine's consent. The case was tried at the Liverpool Spring Assizes, before Mellor, J., and a verdict was found for the plaintiff, leave being reserved to the defendant to move as below. In Easter Term, Mellish, Q.C., obtained a rule calling upon the plaintiff to shew cause why the verdict should not be set aside, and a nonsuit entered, on the ground that the plaintiff could not recover the premises in ejectment first, because no right of re-entry was reserved in the lease of April, 1849, on an assignment by an assignee without consent; secondly, if such a right was reserved, it was determined by the first assignment with consent; and that the plaintiff Waine could not recover possession, because he had no legal title to the premises, and the alleged right of re-entry reserved to him by the assignment of the deed of October, 1864, was void. Against this rule, a regrant to Waine in case it is assigned by Merewether. But a term cannot be assigned in that manner, to commence at an uncertain date. I can find no authority for such a disposition of property. It woul! moreover, be difficult to put such a construction upen the words of the lease; and even in that case I feel the force of Mr. Mellish's argument, that it was not so stranger, cannot take advantage of the covenant. meant by the parties. That being so, Waine, as a CHANNELL, B.-It is hardly necessary to say mora If the plaintiff is to succeed he must shew that the is an existing condition, and that it has been brokea. When we come to see the recitals contained in th latter lease, we shall find that the doctrine of estopp : does not apply; and it would only be straining the language of the instrument to take it as making an grant upon a certain event. There is no ground f saying that the parties intended it as a regrant. Th verdict may stand if it can be maintained by either of the parties. But Saunders the other plaintiff to from the original mortgage, and the condition is TOGG as against him. If I were at liberty to look for the real intention of the parties without regard to technical objections, I should agree with the plaintiff's counsel; but we are bound by the authorities on the question of law, and must give effect to them.-R-k absolute. Brett, Q. C., and A. Peel shewed cause.-It is impossible to contend that the right reserved by the former lease was affected by the 22 & 23 Vict. c. 35, which was not passed until after the period of the transaction. But the second lease recognises Waine as the owner of the premises, and therefore the defendant is estopped from saying that he is not. [Bramwell, B.--The second lease only gives you the power of avoiding the original lease.] Estoppel is further created by pay- COURT FOR DIVORCE AND MATRIMONIAL ment of rent. Secondly, this is not strictly a condition, but an agreement that Waine may re-enter on non-payment of rent. (Doe d. Davis v. Elsam, Moo. & COUSEN v. COUSEN.-May and June, 1864, and June 15 M. 189). [Channell, B.-That case has been doubted.] An estoppel need not be by words; it is enough if the position of the parties makes one. The estoppel prevents your going to the first deed to shew another state of things. (See also Doe d. Anstow v. Pegge, 1 T. R. 758, in notis; Doe d. Johnson v. Baytup, 3 Ad. & El. 188). Mellish, Q. C. (with him was C. Russell), contra.-In the latter lease the right of re-entry is given to one who has no legal estate. In the former there is no right of re-entry in case of assignment by an assignee. [He was then stopped.] POLLOCK, C. B.-What has passed during the argument is sufficient to shew conclusively that the rule should be made absolute. CAUSES. and July 18, 1865. Cruelty. Indifference, neglect, aversion to wife's society, us-thom of husband's adultery and cruelty. The case came on on the 4th May, 1864, when husband's adultery with a servant in the house where he was living with his wife was proved, and the foe. lowing evidence of the petitioner, as taken before one of the registrars of the court, was read :— MARTIN, B.-I think both points made by the defendant's counsel fail. The first is, that the defend- "I was married to Mr. Cornet Bacon Cousen, ant is estopped from shewing that Waine, to whom respondent, on the 23rd April, 1861. My name the right of re-entry is reserved, is not the legal owner then Moncrieff Macintosh. We were married at of the estate. In my opinion there is no estoppel. James's Church, Piccadilly. After spending a f If we knew nothing more than appears on the face of days at Brighton, we went on the 1st May to Bra the later deed, we should be led to believe that Waine ford, to the house of the father of. the responden was the reversioner; but there is no estoppel arising This was by arrangement; we had agreed to stay the from presumptions of this sort; and where the lan- for a year or a year and a half. My husband guage of the deed is ambiguous as to whether there is stone quarries; he had a share in them; they w an estoppel or not, we may discover the true state of principally his father's. I had been acquainted wi things by looking at the former deed, which is recited the respondent for four years before our marriage. in the latter, in which it appears that Waine is a had not seen much of him before the previous summe stranger to the legal estate. Now, there is no positive We continued to reside with my husband's father averment in the latter deed that Waine is the rever- the last week in July, 1862. My husband's cond sioner; and that is the only way in which, under these was unkind during May, June, and July, but not circumstances, an estoppel could be created. As it is, unkind as he became afterwards. I went to Lo Waine is a stranger, and you cannot make a covenant by myself, at the end of July, to see my mother, with such a person. I see that it was the intention of was ill. My husband had no objection; he gave the parties that Merewether should not be at liberty some of the money to pay the railway ticket fr to assign, and if I could give effect to that intention by Bradford to London, but not all. I had to supply any reasonable construction I would. I thought at rest. He joined me in London the beginning of A one time that that might be done by construing the gust. We stayed with my mother in Jermyn-street deed so as to regard it as a grant to Merewether, and We were in town together about a fortnight. H |