on the civil bill decrees; this notice was served on the 25th of February, 1849, and the decree had been pronounced on the 26th of January, 1849. Mr. O'Hara moved for the injunction. Sir Colman O'Loghlen contra.-The civil bill decrees are now confirmed against the administratrix absolutely, and the parties who have obtained the decrees have a right to enforce their rights against her, for those decrees were pronounced before the decree to account. As to the costs of the motion, Bookless v. Crumack (1 Purton Cooper, 125); Jones v. Jones (5 Sim. 678); Egan v. Baldwin (2 Mol. 532). Mr. O'Hara, in reply. They had notice of the decree on the 25th of February, and yet they went on; and those affirmances have been obtained behind the back of the administratrix. April 23. MASTER OF THE ROLLS.-I will stay the suits in the superior courts, and will not give the parties who so proceeded the costs of appearing on this motion; for, otherwise, if a great number of actions were depending, all the parties would be entitled to appear, for the purpose of informing the court that they could not offer any opposition to the motion. As to the civil bill proceedings, they stand upon a different footing; for a civil bill decree is in the nature of a judgment de bonis propriis, and an executor against whom such a judgment is obtained, is personally liable. It is not necessary to offer any opinion whether the form of judgment on the civil bills is correct or not. The decrees obtained in the present case appear to be in the usual form, and are equivalent to judgments de bonis propriis of the superior courts. In Terrewest v. Featherby (2 Mer. 480), where such a judgment was obtained before decree an injunction was refused; and in the case of Brooke v. Skinner (ibid., note), the Lord Chancellor said, "that if the plaintiff at law recovered a judgment de bonis testatoris, he would not suffer execution to be taken out on such a judgment; but that if he recovered de bonis propriis, this court would not restrain the execution." [His Honour then referred to the judgment in Vernon v. Thelluson, (1 Ph. 469-70), and to Clarke v. Lord Ormonde (Jac. 124), where the same doctrine is expressed.] The case of Kent v. Pickering (5 Sim. 569) was a creditor's suit, and one of the creditors, who was not a party to the suit, had recovered judgment de bonis testatoris et si non de bonis propriis; and the Vice-Chancellor said, "where there is a decree for the administration of the assets of a testator, this court will interfere so far as may be necessary to give effect to its own decree; but it will not interpose to protect the executors from any liability to which they may have subjected themselves personally." Even if judgment de bonis propriis has been obtained, the court, although it leave the executor liable, will not permit the creditors to interfere with the assets in the hands of the executor. The civil bill decrees, being in the nature of judgments de bonis propriis, I can only make an order similar to that in Kent v. Pickering, leaving the creditors to make their decrees available against the executors personally. [His Honour then proceeded to consider whether the decree to account would be a defence to the civil bills, and having referred to the 36 Geo.3, c. 55, s. 7, and 56 Geo. 3, c. 88, s. 9, by which the defendant is entitled to all matters of defence that he might have had if sued at common law or equity; and to Napier on Civil Bills, p. 107, and p. 86, where the question is considered, whether new evidence is admissible on an appeal from the Civil Bill Courts, made the following order.] “Let the said Charles Studdert, &c., be restrained from further proceedings at law in the actions commenced against the said J. Powell, as administratrix, &c., and let said parties be at liberty to come in under the decree in this cause and prove their demands, together with such costs at law as they may have respectively properly incurred, &c., up to the time at which the said parties respectively had notice of the said decree, &c., and let John North, &c., be restrained by the injunction of this court from levying in execution, or selling any part of the assets of the late Thomas Powell, under the civil bill decrees obtained by them, or from otherwise interfering in any manner with said assets; and, in taking the accounts in this cause, declare the said Jane Powell entitled to have credit for the costs properly and necessarily incurred by her in said several actions and proceedings." R. Pet. H. Book 28, fo. 378. PORTER V. VESEY.-May 1. Practice-Subpæna-Clerk in Court-Answer for a minor. Mr. McCartney moved that the clerk in court might be at liberty t put in an answer for the defendant, George Stewart, a minor, he had been served with subpoena by the name of Mervin Stewart, but an appearance had been entered in his right name. MASTER OF THE ROLLS.-I have no authority to direct the clerk in court to file an answer unless the defendant has been regularly served with subpœna. GREEN v. M'CLINTOCK.-May 1. Practice Separate answer—Married woman. The Court will not make an order that a bill be taken pro confesso against a married woman there being no order that she should answer separately. Mr. Murphy moved to take the bill pro confesso against several defendants, two of whom were married women. Mr. Richards appeared for one of the defendants who answered previously to the motion. Mr. Jenkins, for the married ladies, opposed the motion. MASTER OF THE ROLLS.-I have no authority to make an order that the bill be taken pro confesso against a married woman, no order having been obtained giving her liberty to answer separately. REVENUE EXCHEQUER. REGINA V. In Revenue Cases, the Court will not grant the Mr. Jebb, on behalf of the Commissioners of Excise, moved that the defendant should be directed to join in the expense of books, the traverser having demurred to the information. PER CURIAM.-The rule of the Court at the Common Law side and the Revenue side of the Exchequer is different. At the Law side, a defendant demurring is ruled to join in the expense of books, or judgment to go for plaintiff; but at the Revenue side such has not been the practice, and we are not disposed to vary it. QUEEN'S BENCH.-EASTER TERM. SMITH V. McEvoy.-April, 23. Promissory Note-Consideration-Delivery. A fi. fa. having been executed against the property of B., at the instance of A., while the money arising from the sale remained with the sheriff, it was agreed by deed that A. should relinquish the fruits of his execution, and should receive a certain composition on the amount of his claim, along with the other creditors of B. It was also agreed that A. might have the use of the money arising from the levy, on passing his note at four months for the amount to C., as a trustee for the creditors. A., on signing the deed, deposited his note with C.'s solicitor, receiving from him, at the same time, a written undertaking not to part therewith until the creditors had executed or assented to the deed. No creditor except A. signed the deed, which did not appear to have been further acted on. Held, that, under the circumstances, there was no consideration for the note between the parties. Held, also, that, independently of this, the action was not maintainable, the note having been deposited by A. in the hands of a third party, to be handed to C. only in a certain event, which had never happened. Semble, that in point of law there was no delivery of the note. Assumpsit by payee against maker of a promissory note. The declaration contained one count, on a note dated the 27th of May, 1848, payable in four months, for the sum of £97 15s. 2d., and also the usual money counts. Plea, general issue. Notice to prove consideration, was also served on the plaintiff. At the trial of the cause before Crampton, J., at the sittings after last Hilary Term, it appeared that the defendant had some time previously recovered a judgment, after much litigation, against a person named Reid, for a large amount, and had issued against him a fi. fa., under which his goods were sold. A portion of the debt, however, remained undischarged, and, Reid being indebted to several other parties, his friends endea voured to induce the defendant to come to terms with him, and at length prevailed on the former to agree to accept the terms offered to the body of the creditors. A deed of composition was accord pay ingly prepared and engrossed, dated the 27th day "Re THOMAS REID with his Creditors. (Dated, May 27, 1848.) To JOHN M'EVOY, Esq., Meeting-house Yard.' It did not appear that Reid had made any exertions to obtain the assent of the other creditors to the deed; on the contrary, they had been settled with pendently. The defendant never received any Iment under the deed. The note when prod appeared to have been in circulation, from et of there being a cancelled indorsement by the tiff. Upon this state of facts, counsel for the dant called for a nonsuit, which the learned refused, but allowed the plaintiff to take a ct, subject to be turned into one for the dent, in case the Court should decide in favour latter, expressing, at the same time, that the ation of his mind was with the defendant. A tional order was accordingly obtained, in the e of the present term, against which M-Donough, Q.C., (with him, Mr. O'Caln) now shewed cause. The plaintiff here sues stee for such of the creditors as inay sign the The action is by payee of a note against , and notice has been served to prove consion. The fallacy of the argument on the side consists in the assumption, that the deed be void if not executed by all the creditors. kburne, C. J.—If there be any consideration he note, he cannot set up that defence.] lefendant signed the deed. Cole v. Cresswell, d. & El. 661.) The words of the deed are, of the creditors who should elect to come in · said arrangement." The document produced e part of the defendant is at variance with the of the deed, and was, therefore, not properly able in evidence, to vary the effect of the iment under seal. Lewis v. Jones, (4 B. & 6.) [Blackburne, C. J.-The document does in my opinion, contradict the deed, or vary erms of it.] There is a covenant in the deed, old the note upon trust, to distribute the ant thereof rateably between the creditors. This pugnant to the document, which is uno flatu the deed In the case of Lewis v. Jones, no tion was taken at the trial to the admissibility evidence. Parol evidence cannot be given, ew a note not to be payable at the time men1. [Crampton, J.-If we are called on to a presumption about the dates of these instru, we must presume them to relate to the same action.] It is a settled rule, that the mere ion of the signatures of creditors is insufficient oid a deed of composition; a tender to, and al by, them, must be proved. The note ought ve been given up by the depositary, as well the creditors assenting to the arrangement, as their executing the deed, and their having ted in ready cash sums of money in satisfac of their claims, amounted substantially to J.D. Fitzgerald, Q.C. and Mr.R. Armstrong, -The deed here is merely collateral to the ent cause of action, and can be used for the ose of shewing the consideration of the note. ay, 1st, there was no delivery of the note; there was no consideration for the same; 3rdly, there was a distinct collateral agreethat the note should be delivered only on the ening of an event which never took place. e could have been no delivery until the deed een executed or assented to by all the creDelivery is as essential to the validity of a note, as it is to that of a deed. It is, therefore, no contradiction of the terms of the deed, to shew that the note was delivered as an escrow. Bowker v. Budekin, (11 M. & W. 128.) Neither the plaintiffs nor the creditors at large were bound by the deed, as they never executed it. Walwyn v. Coutts, (3 Mer. 707.) Mr. O'Callaghan in reply-The deed must be considered to intercept the note. This latter bears Smith's endorsement, and whether there were a breach of trust in the case or not, the fact of the delivery is clear. The deed was not dependent for its validity upon the signature of all the creditors. This, in fact, was the difficulty started at the time of executing the deed-namely, that the party signing might be bound, and the others free. This led to the collateral agreement, which was intended as a qualification to the terms of the deed. It is said that there was no evidence of assent in this case, but a liberal construction ought to be given to the term. The circumstances of the case must be taken into account, in the construction of this term. [Crampton, J.-In no instance has this deed been acted on. How would the case have stood, if Reid had surrendered his whole property' to the other creditors.] Your lordship suggests a case which would have completely encroached on M-Evoy's rights; but this is not the present state of facts. Here the main object was to avoid bankruptcy. The witnesses who have been examined in this case depose to the assent of the creditors, when they speak of the various settlements inade with them. That is the species of assent contemplated by the document. BLACKBURNE, C. J.-This was an action by the payee of a promissory note against the maker, an the consideration was examinable between the parties to the suit. The plaintiff, having been served with a notice to prove same, has proposed to do so by giving in evidence a certain deed of composition. Now, had this been a valid instrument, and acted upon by all parties, there is no doubt that the present action would have been maintainable. The plaintiff would then hvae been the bona fide holder of the note, according to the terms of the deed. Reid was indebted to many persons, but not to the plaintiff, who was a bare trustee for the creditors, and bad, therefore, personally no right other than that which the deed conferred-namely, to use the security for the benefit of those creditors who should come in and execute the deed. Not one of them, however, came in, or took any benefit from it; no one assented to, or took under it. The evidence is, that some accepted more, and others less, in satisfaction of their claims, but all independently of the deed. On this head, the case is clearly with the defendant, as no consideration is disclosed by the deed, and the note is between him and the plaintiff. Contemporaneously, however, with the making of the note, and as a part of the same transaction, the defendant insisted on having a document signed by the plaintiff's solicitor, with whom the note was to be deposited, that he would not part therewith until the deed was executed or assented to by all Reid's creditors. This was plainly all one transaction, and the document was not in contravention or contradiction of the deed, but in exact conformity with it. There was an abortive attempt to carry the composition deed into effect, for it was never executed. The plaintiff's solicitor was the trustee of the defendant; and, in violation of his trust, he handed the note over to the plaintiff, and thus enabled the latter to indorse it, and the solicitor then put it into circulation. This fact is established by the cancelled indorsement. I put no improper construction upon this act of the solicitor, but there was a legal obligation imposed upon him to retain the note until the proper event had occurred. I am clearly of opinion, therefore, that a verdict should be entered at once for the defendant, as the plaintiff has not been taken by surprise, and as a new trial could produce no other result. CRAMPTON, J., concurred.* Rule to enter a verdict for defendant made absolute. Mr. R. Armstrong, for the plaintiff, had, on a former day in this term, April, 20, obtained a rule nisi, to set aside the verdict which passed for the defendant, and for a new trial, on the grounds of surprise and newly-discovered evidence. Mr. Fitzgibbon, Q.C., for the defendant, now noved to set aside the rule, as having been obtained irregularly. The 125th rule of this Court requires, that where a party seeking to set aside a verdict relies upon surprise or fatality, or upon the discovery of new evidence, the application must be grounded upon affidavit, and the opposite party must have notice of the motion. Mr. Armstrong, contra, admitted that the rule nisi was irregularly obtained, but contended that the defendant had waived the irregularity, by having filed affidavits as cause against the rule. The Court set aside the rale, but without costs, being of opinion that the defendant had unnecessarily increased the expenses, by having filed affidavits that were immaterial to the motion. April, this motion was moveable during the last term, and to hear it now would be in effect turning the vacation into another term. Smith v. Shaw, (2 Law Rec. O. S. 270;) White v. Mahony, (Bl. Dun. & Osb. 192.) BLACKBURNE, C. J.-The motion ought to have been made during the sitting of the Court, and must now be refused. No rule. EXCHEQUER OF PLEAS DELANY v. NEWLAND.-April 30, 31, and May 4. Bill of Exchange-Fraud-Indorsee without Notice-Onus of Proving Consideration-Howard v. Shaw (Ir. L. Rep. 335) commented on. In an action by an indorsee against the acceptor of a bill, the defendant gave evidence that the bill was fraudulently filled for a larger sum than had been agreed upon between the drawer and a person who was no party to the bill, but to whom the drawer had sent the stamp, signed in blank. Held, that such evidence was sufficient to throw upon the plaintiff the burthen of proving consi deration. Howard v. Shaw (9 11. L. Rep. 335) commented upon, and disapproved of upon the question of fraud throwing the onus on the indorsee of proing consideration. This was an action on a bill of exchange by an indorsee against the acceptor. Plea, the general issue. At the trial before the Lord Chief Baron at the sittings after Hilary Term, the plaintiff proved the hand-writings of the acceptor, drawer, and indorsee, and, reading the bill, closed. The defendant then went into evidence to shew that the dealing from which the bill arose was between the drawer and a person named Joel, whose name was not upon the bill-that the original agreement was, that the bill should be drawn for £60-that the drawer sent a blank stamp to Joel, with the defendant's name written across it, and his own at the foot and on the back, and that he told the defendant, who accepted solely for his accommodation, that the bill was to be drawn for £60, and that the bill was filled by Joel for £200, in fraud of that agreement. Whereupon the defendant's counsel called upon the plaintiff, under these circumstances, to prove that he had given value for the bill, which, not being done, the learned Chief Baron told the jury, that, as the plaintiff had not proved any consideration given by him to Joel, and if they believed the fraud imputed to the latter, to find for the defendant; and reserved leave for the plaintiff to move the court to have a verdict entered for him for either the full amount of the bill, or for £60. Verdict for defendant. Mr. McDonough, Q.C., and Mr. D. Lynch, Q.C now moved pursuant to the leave reserved. Mr. J. D. Fitzgerald, Q.C., with Mr. Semple, contra. [The judgment of the Lord Chief Baron so ably reviews all the cases on the principal point as to render it unnecessary to give the arguments of counsel.] The following cases were relied and commented upon:-Bingham v. Stanley (1 G. & Dav. 237), Wilson v. Bailey (9 Dowl. 18); Sheriff v. Wilkes (1 East. 48); Smith v. Martin (9 M. & W. 304); Mills v. Barber (1 M. & W. 425, S. C. 5 Dowl. 77, S. C. 2 Gale, 5); Wyatt v. Bulmer (2 Esp, 538); May v. Chapman (16 M. & W. 355); Percival v. Frampton (2 C. M. & R. 180, S. C. 3 Dowl. 748); Humphries v. O'Connell (9 Dowl. P. C. 213, S. C. 7 Mee. & W. 371); Newby v. Smith (2 Esp. 537, note): Bassett v. Dodgin (10 Bing. 40); Thicknesse v. Bromilom I Cr. & Jer. 425); Bailey v. Bidwell (13 M. & W.73); Howard v. Shaw (9 Ir. L. Rep. 335); Brown v. Philpot (2 Moo. & Rob. 285); Duncan v. Scott (2 Camp. 100); Rees v. Marquis of Headfort (2 Camp. 574); Rowland v. Evans (4 Jur. 460). shewn that something has been done with it of an illegal nature, or that it has been clandestinely taken away, or has been lost or stolen, in which cases the holder must shew that he gave value for it, the onus probandi is cast upon the defendant;" an argument founded upon the principle that contra spoliatorem omnia præsumuntur. Isaac v. Farrer, (1 Tyr. &Gr. 281; S. C. 4 Dowl. 750,) was an action by the indorsee against the maker of a promissory note. The plea,after stating certain facts of the transaction, went on to say, "that the transaction was a gross fraud and imposition upon the defendant, and that the note was indorsed to the plaintiff without consideration, and that he held the same without value or consideration, and that there never was, nor is there any May 4.-PIGOT, C. B. now delivered judgment. consideration or value on the said note between any [After stating the facts as above.] The question I left parties thereto." Replication, de injuria sua proto the jury was, whether the bill was filled in fraud pria. Demurrer. That case was decided solely of the agreement. There was no evidence of con- upon the pleadings. At the close of the argument, sideration by the plaintiff, nor was there any proof Lord Abinger, C. B. said, "one inconvenience has of his having had notice of the fraud. At the close occurred to me which has not been urged on the part of the defendant's case the plaintiff was called upon of the defendant. Formerly, on fraud being sworn, to prove that he was an indorsee for value. I directed the plaintiff was obliged to show consideration; but, the jury to find for the defendant if they believed if this replication is allowed, the whole burthen of the evidence of the fraud. The jury found for the proof will be thrown upon the defendant, he will defendant. The first question is, whether there was have to prove both fraud and want of consideration, any such evidence of fraud as to impose upon the he will have to prove a negative; therefore, it plaintiff the necessity of proving that he was an in- seems to me that he still ought, after proving fraud, dorsee for value. The case of Howard v. Shaw, to be permitted to cast the onus of shewing consi(9 Ir. L. R. 335,) renders it necessary that we should deration upon the plaintiff." And Parke, B.review the authorities on this question. Where a "Formerly, fraud was deemed prima facie evidence bill or note is obtained by fraud, the indorsee cannot of no consideration, and probably the same course recover unless he can shew a title untainted with would be followed, should this form of replication notice of the illegality or fraud, and that he is an be allowed." The Court upheld the replication, as indorsee for value. It appears certainly to have in accordance with established rules of pleading, been at one time held that the circumstance of the and at the close of the conclusion of his judgment, =original transaction being tainted with fraud did not Lord Abinger, C. B., says, "If this replication necessarily throw upon a remote indorsee the onus were not allowed, some inconvenience would of proving value. Wyatt v. Bulmer, (2 Esp. 537) follow; for in every action on a bill or note, it and Newby v. Smith, (2 Esp. ib.note.) The contrary would be competent for a defendant, by alleging of this is so clear that, if it were not for the case of fraud, or such other circumstance as would throw Howard v. Shaw, I should have had no doubt but the proof of value on the indorsee, to compel him that the proof of fraud imposed upon the plaintiff to prove it; on the other hand, if this replication the burthen of proving that he gave value. Duncan be allowed, the indorsee is left in the same situav. Scott, (1 Camb. 100,) Rees v. Marquis of Head-tion he was before-with the additional advantage, fort, (2 Camb. 574). In Heath v. Sansom, (2 B. & that he is made acquainted with the defence to be Ad. 29,) it was held "that where the note or accep- set up, which was one great object of the late tance had been obtained by felony, by fraud, or by pleading regulations; and he will be called upon duress, it has been usual to require proof of valu- to prove value given or not, accordingly as the able consideration on the part of the indorsee," and defendant shall prove or fail in the proof of the I do not dispute the propriety of that usage, as any allegation of fraud, as he would before under the one of those facts raises some suspicion of the title general issue." I have stated thus fully the opinion of the holder, and this rule was recognized in Basset of the Court of Exchequer in England, as there v. Dodgin, (10 Bing. 40.) In Mills v. Barber, (1 appears to be some misapprehension as to the effect Mee. & W. 425, S. C. 5. Dowl. P. C. 77,) Lord of the decision in Smith v. Martin, (9 Mee. & W. Abinger refers to the opinion expressed by him in 304,) upon this question. The learned Chief Baron Simpson v. Clarke, (2 ̊ Cr. M. & R. 342; S. C. 1 then referred to Whitaker v. Edmonds, (1 Ad. & Gale, 237; S. C. 5 Tyr. 593,) and recognized the El. 638, S. C. 1 Moo. & Rob. 366;) Arbouin v. distinction between bills for accommodation merely, Anderson, (1 Q. B. 498 ;) Shearm v. Burnard, (2 and cases of fraud; he says, p. 431, "If a man P. & Dav. 565,) and proceeded. Before I refer to comes into Court without any suspicion of fraud but other cases on this subject, it is necessary to observe only as the holder of an accommodation bill, it may that in Howard v. Shaw, it was not necessary to fairly be presumed he is a holder for value. The decide this question; the question there turned upon proof of its being an accommodation bill is no evi- the absence of consideration. In Bramah v. Rodence of want of consideration in the holder," "un-berts, (1 Scott, 350, S. C. 1 Bing, N. C. 469, it less, therefore, the bill be connected with some fraud, was held, that when the defendant set up by his and a suspicion of fraud be raised from its being plea a case of fraud, a replication stating that the |