Rowland v. Evans (4 Jur. 460), at least from the body of the report, but, coupled with the note by the reporter, it appears to be an authority in favour of the view the court has taken of this question. We are, therefore, of opinion, the plaintiff cannot have a verdict for any portion of this bill, nor do we think the verdict contrary to the weight of evidence; all the facts were left to them, and they have drawn their conclusion. I have the authority of my brother Lefroy for expressing his concurrence in the judgment I have pronounced.

PENNEFATHER, B., expressed his full concur

rence.*

Lessee Jordan v. Casual EJECTOR.—May.

The Court of Exchequer will allow the tenant to renew when he has signed the acknowledgment required by the 8th section of the 10 & 11 Vie c. 111, to remain in possession till he has reaped the crops sown by him since the former habere. This was an application for liberty to renew the habere, pursuant to the provisions of the 9 & 10 Vic. c. 111, s. 8. The tenants were the immediate tenants of the landlord, by whom the ejectment was brought; they had no under-tenants. They had signed the acknowledgment required by the 8th section of the 9 & 10 Vic. c. 111, and now refused to give up possession, having put crops in

the land.

plaintiff was an indorsee for value, without notice of the fraud, was a good answer to the plea; and Smith v. Martin is to the same effect. There, the Lord Chief Baron Abinger refused, at the trial, to call upon the plaintiff to begin by proving fraud, as the affirmative of that allegation lay upon the defendant, who raised the question by his plea. Both those cases turned upon their respective pleadings, and Edmunds v. Groves, (2 M. & W. 642, S. C. 5 Dowl. P. C. 775,) is to same effect as Smith v. Martin. In Bingham v. Stanley, (1 Gale & Dav. 237, S. C. 2 Q. B. 117,) the Court of Queen's Bench expressly differed with the opinion of the Court of Exchequer in Edmonds v. Groves, applying the old principles to the new law of pleading, holding that an admission on the record of fraud would throw the onus of proving consider-Practice-Renewal of Habere—9 & 10 Vic. c. 111. ation upon the plaintiff, the Court of Exchequer holding such admission to be sufficient for that purpose. This question was not raised in Bramah v. Roberts. The rule established by a long line of decisions, that if the note were proved to have been obtained by fraud or effected by illegality, would cast upon the plaintiff the burthen of shewing he was a bona fide indorsee for value was again determined in the case of Bailey v. Bidwell (13 M. & W. 73), which case was not brought under the consideration of the Court of Queen's Bench in Howard v. Shaw. In the former case the illegality was proved, and the court was called upon to say, that the plaintiff should have proved that he had given full consideration, the question directly and pointedly arose. Parke, B., in his judgment says, "It certainly has been, since the later cases, the universal understanding, that if the note were proved to have been obtained or affected by illegality, that afforded a presumption that the person who had been guilty of the illegality would dispose of it, and would place it in the hands of another person to sue upon it, and that such proof casts upon the plaintiff the burthen of shewing that he was a bona fide indorsee for value." On these authorities, we must hold that the evidence in this case was sufficient to cast this onus upon the plaintiff, and therefore he should have proved consideration; and are, therefore, of opinion, that on this point the verdict should stand. It was further contended, that the plaintiff was entitled to recover a verdict for £60, the defendant having given Joel an authority to that amount, on the principle that a firm may be liable for the acts of one member of it, so far as the bill is within the scope of his authority. Thicknesse and another v. Bromilow (2 Cr. & Jer. 425), Wilson v. Bailey (9 Dowl. P. C. 18), and others, plainly shew that prima facie all the members of the firm are bound by an instrument drawn by one of a firm, within the scope of his authority. The learned Chief Baron also referred to Jones v. Corbett, (2 Gal. & Dav. 308), and Musgrove v. Drake (1 Dav. & Mer. 347). There is a principle to be derived from these authorities applicable to the case before us; here the fraud has been proved, and the acceptor has plainly a right to say, non in hæc fædera veni; and that he is not bound by this instrument to any extent; that there is no liability what-193), Lessee Nevin v. Ejector (ib. 275). Q. B. contra I do not clearly understand the case of

ever.

Mr. J. Pennefather.-It could never have been contemplated by the legislature that the landlord was to be kept out of possession, nor that the tenants should have the power of tilling the land. In this case, we are willing to pay for the value of the seed and labour expended. The Queen's Bench has put the party bringing the ejectment under the terms not to execute the second habere till the tenant could reap the fruits of the crop he put in the land since the former habere.†

The Court, having taken time to consider, now made the following rule, stating they would make a general one for all applications of this nature. "It is ordered by the court, that the said lessor of

plaintiff be at liberty to issue a renewal of the said writ of habere facias possession directed to the Sherid of the County of Tippe rary, without further motion. The costs of this order, of such renewal, and of taking possession thereunder, to be borne by the said lessor of plaintiff, and such renewal not to be executed until the expiration of three weeks after service, either personally upon said tenants, or at the respective dwelling houses of said Richard Stokes and Edmond Stokes, upon some inmate thereof, of this order, and of a notice annexed, stating the effect hereof, and the course to be pursued by said tenants, if they so desire, to discharge, limit, or vary this order.

* This case was heard before Pigot, C. B., Pennefather, and Lefroy, B.B. Richards, B. absent.

↑ See Lessee Wellington v. Casual Ejector (Bl. D. & 0,

The general order will be found, ante Misc. p. 220.

COURT OF CHANCERY. HAMILTON v. HAMILTON.—April 28, May 12. Bill of Revivor-Plea-Order to Revive. A defendant to a bill of revivor appeared to it regularly; an order to revive was obtained, and afterwards, within a month from his appearance, the defendant filed a plea. Held, confirming the decision of the Master of the Rolls, that the order to revive did not preclude the filing the plea.

The

reasonable construction on that practice. subpoena is regularly in this form :-" Victoria, &c. We command you, that within eight days after the service of this writ upon you, exclusive of the day of such service, and laying all matters and excuses aside, you do cause an appearance to be entered for you in our High Court of Chancery in Ireland, to a bill of revivor filed against you in our said court by A. B., and shew cause, if any you can, wherefore a cause lately depending in our said Court of Chancery, between C. D., In this case the bill stood over to be amended, by plaintiff, and others defendants, and the proceedmaking the personal representative of F. Hamiltonings thereon had should not be revived by the it is argued, that meaning is, that the appearance said C. D. against you, the said," &c.

a party pursuant to an order made at the hearing. Administration to him was taken out by one of the former defendants. The bill was amended by praying that it might be taken as a bill of revivor against her, in her capacity of administratrix, but not requiring an answer. A subpoena to revive merely was served. The defendant within eight days appeared; the plaintiff obtained the usual side-bar rule to revive on appearance of the defendant; subsequently, but within a month from appearance, the defendant filed a plea to the revivor. The plaintiff moved to have the plea taken off the file as irregular, being a plea to the revivor which had been already obtained. The Master of the Rolls refused the motion.

Mr.Christian, Q.C., moved, by way of appeal from the Rolls order; he referred to the form of subpoena to revive (Smi. Ord. Appx. 35), and argued that it shews, that not only must the appearance be entered, but cause must be shewn within eight days, or the plaintiff may revive-that cause against revivor can only be shewn by plea or demurrer, though cause against maintaining the suit may also be shewn by answer, Harris v. Pollard (3 P. Wms. 348); Lewis v. Bridgeman (2 Sim. 465); Codrington v. Houlditch (5 Sim. 286); Langley v. Fisher (10 Sim. 345; 2 Dan. Ch. P. 1422; Red. Eq. Plea, 290); Attorney-General v. Carden (How. Ex. Prac. 4); Brownlow v. Chandos (Vern. & Scriv. 109); Daly v. Kirwin (not reported); 1 Harr. Ch. Pr. 71; Dan. Ch. P. 1422. In Bowyer v. Beamish (8I.E. R.63), the bill was to revive and answer; here it is simply to revive, and we have obtained all we require by the side-bar rule.

Mr. Brewster, Q.C, and Mr. Deasy, Q.C, for the defendant. The effect of the practice contended for would be to make it impossible to prevent revivor. The 64th Rule of 1843 prescribes the time within which to file a plea or demurrer, Boyle v. Blake (2 Hog. 99) was not decided on the special facts of the case, but on the general principle, and it governs this case, (Red. Eq. Plead. 289). Cathcart v. Hewson (Glascock 109) supports Boyle v. Blake. [They referred to the 10th Rule of 1831, Eng., and contended that it has never been the practice to inquire whether the rule to revive was obtained or not before filing a plea.]

Mr. F. Fitzgerald, Q.C., in reply.

LORD CHANCELLO R.-My present impression is, that the order of the Master of the Rolls is right, though it exhibits an anomalous condition of the practice; but I must try to put a rational and

Now,

must be entered, and the cause shewn, within eight days. I must doubt if that be the true construcThe order to revive is in the following

tion.

terms:

"Whereas Mr. G. F., solicitor for the plaintiff, this day informed the Court that the cause formerly depending in this Court, abated by the death of defendant, and thereupon the plaintiff exhibited his bill of revivor in this cause, and that appearance been entered thereto for the defendant, It is ordered by the Court, that the said cause be revived, and that the same and all proceedings therein had do stand in the same plight and condition as the same were in at the time of the death of the said," &c. Applying to the construction of this document, the passage in Lord Redesdale's Treatise and the 64th Order, it will be seen whether they cannot be reconciled, and whether, after the order to revive, the defendant is not entitled to shew that the plaintiff is not entitled to maintain his bill. At the hearing of the cause, the defendant can shew that the plaintiff has no right to revive. In Eng. land the order to revive is entered, stating that the time for answering has expired, not as here, on the appearance of the defendant. I take the form from Seton's Decrees, 384, shewing that in England the order is made on a party failing in performance of what the subpoena requires him to do. In this country, it is made merely on appearance, although, according to the rules of the court, the defendant has a month to plead or demur in general. It has been argued, that that cannot mean to plead to a bill of revivor, because the rule says, "The party shall, on the expiration of such fourteen days, proceed on such plea as if the same were an answer deemed sufficient." I do not read that as if the plea then became an answer, to all intents, where a plea ought to have been put in. I cannot look upon that as overruling the first part of the sentence. I find the subpœna calling on the defendant to appear and shew cause against the revivor, and I look on the bill as being liable to be defeated by plea or demurrer.

[His Lordship deferred his final judgment, on this motion until the 12th of May.]

May 12.-LORD CHANCELLOR.The Master of the Rolls' order in this case must be affirmed. It does appear that this plea was filed consistently with the practice of the court. The practice here is different from that in England; that is to say,

out plea or demurrer is assumed to be a submission
to a revivor. However, whatever may have been
the old practice, the modern practice is not the same,
at least in no important case has a plea under these
circumstances been set aside.
In Boyle v. Blake,
(2 Hog. 99,) it is treated as according to the current
of practice of the court.
It does appear on the do-
cuments in this cause that the question arose whether
the order to revive was entered in time because it
was obtained on the same day that the demurrer
was filed, and was not served till afterwards, but it
does not appear from the report that that was much
argued, and the judgment goes on the general prin-
ciple. Mr. Ball for the defendant said: "This de-
murrer was filed within eight days after the entry
of the defendant's appearance, and pleas and demur-

the rules in England are different, and define more cause if any you can, &c." And the order to revive accurately the practice on this point. This was a merely states that the party appeared, but contains plea to a bill filed in time, as a plea within the not a word about his not having shown cause, though 64th General Order, which provides, that "each one would expect that to be entered; the only way defendant shall be allowed one month from appear-to construe that sensibly is, that an appearance with ance first entered, to file any demurrer or plea to the whole bill." There is no rule in these orders respecting the rule to revive. According to the English practice, a party has eight days' time to appear, and then eight days further for pleading or demurring; and it is not until the expiration of both periods that the order to revive can be entered. The rule, as stated by Lord Redesdale (Mit. Plead. 1827, p. 77), is, that "upon a bill of revivor, the defendants must answer in eight days after appearance, and submit that the cause be revived, or shew cause to the contrary; and, in default, unless the defendant has obtained an order for further time to answer, the suit may be revived without answer, by an order made upon motion, as a matter of course." But he states in the next page what seems either inconsistent with that proposi-rers have frequently been filed to bills of revivor tion, or to put a construction on the order to after the order to revive has been entered." That revive, which is the same put on it in one or two statement of counsel was made to Sir William Mac cases in this country-" And notwithstanding an Mahon, a very competent judge of the practice of order for revivor has been thus obtained, yet if the court, who says: "The order of revivor entitles the defendant conceives that the plaintiff is not the plaintiff to carry on the proceedings in the orientitled to revive the suit against him, he may take ginal cause, and he will get the benefit of them if those steps which are necessary to prevent the he shall appear to be entitled to it at the hearing of further proceeding of the bill, and which will be the cause, but it is not in any manner conclusive as noticed in treating of the different modes of defence to his right to revive the suit. Nothing can be more to bills of revivor." Now, the modes of defence desirable for the plaintiff if he has no right to revive to a bill of revivor seem to be by plea or demurrer. them that the defence should be set up as soon as In p. 201 he says, "If a bill of revivor does not possible. The entry of an appearance cannot be shew a sufficient ground for reviving the suit, or any bar to a defence either by answer, plea or deany part of it, either by or against the person by murrer." It was alleged that the report was incoror against whom it is brought, the defendant may, rect because this other ground of controversy apby demurrer, shew cause against the revival;" and peared on the documents, but I cannot so treat it. in p. 289, "If a bill of revivor is brought without It is well known that this reporter was a person in sufficient cause to revive the suit against the de- the confidence of Sir William Mac Mahon, and that fendant, and this is not apparent on the bill, the his reports have in consequence much authority on defendant may plead the matter necessary to shew points of this sort. In Cathcart v. Hewson, (Glas. that the plaintiff is not entitled to revive the suit 169; S. C. Hayes, 447,) the court recognized the against him." I cannot read that passage in p. 78 judgment of Sir William Mac Mahon in Boyle v. without respect to the subsequent passage; it is Blake, which was there referred to as a MS., or quite impossible to exclude these two subsequent within the recollection of counsel. So far, therefore, parts of the same treatise in considering the first. as any printed case of late years it seems that the According to the present English rule, it would entry of the order to revive does not prevent the seem, that a plea or demurrer would be too late filing of a plea or demurrer, the entry is on appearafter the order to revive; and there is good sense ance merely. Now it is remarkable that the orders in that, because by that order to revive, the cause of 1834 contain an order for the rule to revive, the is placed in the same state in which it was before 16th providing, "That in all cases of bills of revivor the abatement; and if the plea or demurrer were the rule to revive may be entered immediately upon allowed, there would be on the same record two the appearance of the party being entered with the orders inconsistent with each other. In this coun- registrar, and without any attachment to warrant try there is no definite rule. Formerly the same." The 18th, which immediately follows, propractice both in Chancery and in the Exche- vides that each defendant should be allowed one quer-was that a plea or demurrer could not month to file any demurrer on plea to the whole bill. be put in after an order to revive; that appears It does appear from those two rules, so close to each from Attorney General v. Carden (How. Eq. Pr. 5). other, that the attention of their framers must have When we come to look at the form of the docu-been drawn to the power to enter the rule to revive ments they do not seem very intelligible, because immediately on appearance, while, by the subsethe subpoena calls on the party to enter an appear-quent order, they gave the defendant one month's auce and shew cause: "We command you, that within eight days you do cause an appearance to be entered for you in our High Court of Chancery in Ireland to a bill of revivor, and shew

time to plead or demur. In the new rules, the 16th rule is omitted, the 18th is retained as part of the 64th rule. It was contended that that was controled by the subsequent part of the same rule, but I can

publication to pass, until the pending motion the Court of Chancery, as the person entitled to it should be decided. It is ordered by the Right Hon. the Master of the Rolls, that the plaintiffs be, and they are hereby at liberty to examine witnesses in this cause, notwithstanding publication having passed-the plaintiffs' hereby undertaking to close such examination before the second day of next Trinity Term, and to set down this cause for hearing on the second day of next term; and it is further ordered, that the defendants be, and they are hereby at liberty to cross-examine such witnessess, and it is further ordered that the parties do abide their own costs of this motion."* Lib. 285, fo. 233.

EQUITY EXCHEQUER.

In re TURNLEY ex parte THE MAYOR AND
BURGESSES OF BELFAST.
Practice-Costs-Transferring money by Town
Council to Court of Chancery, to the credit of
lunatic.

Mr. W. C. Dobbs moved that the purchasemoney lodged in this Court, pursuant to the provisions of 69 sec. of the 8 Vic. c. 18,† be paid into

In order to avoid misapprehension, it is right to mention that the observations of his Honor, reported ante page 226, were made with reference to the particular circumstances of the case, and are not to be considered as laying down the general rule, that in every case in which a notice to respite publication has been served, proceedings should be stayed until the motion is heard. By reference to the report of the motion as above, it will be seen that it is only in cases where the opposite party will not be delayed, that publication should not pass pending a motion to respite.

The 69th section enacts. that "If the purchase or compensation which shall be payable in respect of any lands or any interest therein, purchased or taken by the promoters of the undertaking from any corporation, tenant for life, or in tail, married woman served in her own right or entitled to dower, guardian, committee of lunatic or idiot, trustee, executor or administrator, or person having a partial or qualified interest only in such lands, and not entitled to sell or convey the same, except under the provisions of this act or the special act, or the compensation to be paid for any permanent damage to any such lands, amount to or exceed the sum of two hundred pounds, the same shall be paid into the bank, in the name and with the privity of the Accountant-general of the Court of Chancery in England, if the same relate to lands in England and Wales, or the Accountant-general of the Court of Exchequer in Ireland, if the same relate to lands in Ireland, to be placed to the account there of such accountantgeneral, ex parte the promoters of the undertaking, (describing them by their proper name,) in the matter of the special act, (citing it,) pursuant to the method prescribed by any act for the time being, in force for regulating moneys paid into the said Courts, and such moneys shall remain so deposited, until the same be applied to some one of the following purposes: that is to say,

"In the purchase or redemption of the land tax, or the discharge of any debt or incumbrance affecting the land in respect of which such money shall have been paid, or affect. ing other lands settled therewith to the same or to the like use, trusts, or purposes.

"In the purchase of other lands to be conveyed, limited and settled upon the like uses, trusts, and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled; or

at the time of the purchase by the Railway Com-
pany, had since been found a lunatic, incapable of
managing his affairs. He was a lunatic at the time
of the purchase. Prior to the purchase his father
devised the property from him, which devise was,
subsequently to the purchase, declared invalid, and
the lunatic became entitled as heir at law.
Mr. Meade, contra.—The committee of the luna-
tic has no right to get the money out of Court dur-
ing the life of the lunatic.
This is an application
to transfer the fund to the Court of Chancery, where
it will be administered without reference to the pro-
visions of the act which authorises this court alone
to deal with it. The lunatic can acquire no greater
title now than he had at the time of the purchase;
if not entitled then he cannot become so during the
continuance of the lunacy. [On the question of costs
he cited Ex parte Tetley and another v. the Great
North of England R. C., (4 Rail. Ca. 55); Ex parte
Thoroton in re the Midland Counties Railway, (17
Law Jour. 167.)]

Mr. Dobbs, in reply. The argument on the other side would go to deprive us of the reception of the money in any event; it could never have been intended that the property of a lunatic should be administered in this court. In this case there is a party absolutely entitled to this fund, for whom there are persons in existence capable of performing the necessary trusts, to whom this court will pay it. As to the costs we are entitled to them under the provisions of the 80th sec. of the 8 Vic. c. 18. The cases cited on the other side do not apply, they were not applications under the provisions of this act.

PENNEFATHER, B.-I think this is a payment out taken under the authority of this or the special act, or injured by the proximity of the works, or removing or misplacing such buildings, or substituting other in their stead, in such manner as the Court of Chancery shall direct."

• The 80th section enacts, That all monies deposited in the bank under the provisions of this or the special act or an act incorporated therewith, except where such monies shall have been so deposited by reason of the wilful refusal of any party entitled thereto to receive the same, or to convey or release the land in respect whereof the same shall be payable, or by reason of the wilful neglect of any party to make out a good title to the land required, it shall be lawful for the Court of Chancery in England or the Court of Exchequer in Ireland to order the costs of the following matters, including therein all reasonable charges and expenses incident thereto, to be paid by the promoters to the undertaking, (that is to say) the costs of the purchase, or the taking of the lands, or which shall have been incurred in consequence thereof other than such costs as are herein otherwise provided for, and the costs of the investment of such moneys in Government or real securities, and of the re-investment thereof in the purchase of other lands, and also the costs of obtaining the proper orders for any of the purposes aforesaid, and of the orders for payment of the dividends and interest of the securities upon which such moneys shall be invested, and of all proceedings relating thereto, except such as are occasioned by litigation between adverse claimants: provided always, that the costs of one application only for re-investment in land shall be allowed, unless it shall appear to the Court of Chancery in England or to the Court of Exchequer in Ireland that it is for the benefit of the parties interested in the said moneys that the same should be invested in the purchase of lands, in different sums and at different times, in which case it shall be lawful for the Court, if it think fit, to order the costs of any such investments to be paid by the

"If such money shall be paid in respect of any buildings promoters of the undertaking.