fendant having been asked the circumstances under which the note was given, stated; that in 1841, the plaintiff had promised to give £50 to his niece on her marriage with the defendant, and on the latter event taking place, the note, payable twelve months after date, was given with a distinct understanding, that it was only to be paid by the defendant, in case his wife (the plaintiff's niece) did not survive the marriage twelve months. The witness, also stated in reply to a question from the court, that the £50 in the promissory note, was the £50 given as the the niece's portion. The counsel for the plaintiff objected to the admission of this evidence as going to qualify and vary a written contract, but the objection was overruled, and the jury found for the defendant.

Butt, Q.C. and Armstrong, R., now moved that the verdict might be changed into a verdict for the plaintiff, or for a new trial, on the ground that the parol evidence was inadmissible, as qualifying the contract expressed on the face of the note. This is not the case of a want of consideration or a failure of consideration. The promise, according to the note, was to pay in twelve months at all events, but the defendant seeks to shew by parol that the promise was to pay only in the event of the wife dying within that time. It is admitted | that the defendant got the £50, and suppose the wife had died within twelve months, could defendant insist that there was a failure of consideration, Moseley v. Hanford, (10 B. & C 729); Woodbridge v. Spooner, (3 B. & Al. 233); Hoare v. Graham, (3 Camp. 57); Free v. Hawkins, (8 Taunton. 93.)

Charles Kelly, contra.-The evidence went to shew failure of consideration. In all the cases cited on the other side, the contingency might or might not have happened before the note became payable, here the event must necessarily have taken place, before the maturity of the instrument or not at all, Foster v. Jolly, (1 C. M. & R. 70, S.C. 5 Tyr. 239); Rawson v. Walker, (1 Starkie 361); Free v. Hawkins, (8 Taunt. 92); Solly v. Hinde, (2 C. & M. 516; S. C. 4 Tyr. 306; 2 Phillips Ev. 756.) A failure of consideration may be relied upon between the primary parties as much as the total absence of it.

R. Armstrong in reply.- When we speak of the consideration for a note or bill, the question is, did any money pass from the payee to the maker, and if money did pass, then it cannot be said that there has been a failure of consideration. (Pennefather, B.-Do not the facts given in evidence, really go to shew that here was no consideration for the note? There was no other consideration for this note, but the £50 to be repaid in a certain event, and to secure that repayment the note was passed. If the evidence goes to shew, that the event did not hap. pen, and that, therefore, there should have been no repayment, did it not go to shew that there was no consideration for the note? In one case cited

by Mr. Kelly, a note was given, payable on demand, with an agreement, that the payee should

act as executor, and evidence was let in to shew that he declined to act as such, and was therefore disentitled to recover.) In that case no money

moved from payee to maker. (Richards, Bis not the testimony objected to, merely evidenc of the true consideration for which the note was given? The party was to owe the money if a particular event happened, that event did not ha pen, and therefore no debt was contracted by the maker.)

PIGOT, C. B.-We are all of opinion that the verdict had for the defendant should not be set aside It is extremely important, no doubt, to gourd against any invasion of the rule that parolevidesen should not be admitted to vary the purport written contract, but on the authorities, this distinc tion is clearly established, that although parol ev dence cannot be received to vary or qualify my written instrument, yet a defendant may shew the want or failure of consideration in a case like present, though his proofs may involve an agreement. In the argument I referred to a of cases which serve to illustrate strikingly distinction, I mean cases where evidence is adde to shew that a bill has been accepted for the acco modation of the drawer, which frequently inve the admission of parol evidence, and, if a thority were wanted for this proposition, a st one is to be found in Pike v. Sweet, (Dans) Lloyd, Mercantile Cases, 159, S. C. I M. & 226); where it might be argued that in tha: evidence was admitted to control the cong which the instrument imported. Yet Lud Tenterden held that the evidence went, nec m control the contract, but to shew the relat between the parties at the time of the passing the note. Solly v. Hinde applies, as going to datinguish testimony which tends to establish the existence of a consideration, and that which goes to control or qualify the written contract. In th case the instrument imported a promise to para all events, yet an agreement was admitted to shew that the note was not to be put in suit in a particul event, but was to be paid only on a contingen and such an agreement was received, not as var ing the contract, but shewing a failure of conse ation. In the case before the court, the evideN went to shew that the £50 was a gift, in case defendant's wife survived the marriage tee months, and it appears that she did so sur If it were a gift, it is clear that there was no sideration for the note. The evidence objected only goes to shew, that in the events which happe it turned out to be a gift, and that therefore the was a failure of consideration. On this pr we are of opinion that the evidence was pr admitted.

Motion refused with casts.

COURT OF CHANCERY.

LEECH V. LAW.-Nov. 7 & 8. Registry Act-Priority-Bankrupt. unregistered mortgage has priority over the subsequent certificate of appointment of assignees duly enrolled.

his cause came before the court, on exceptions the Master's report, by the defendants, Hugh aw, Henry Milner, and Thomas Atkinson asgnees, of Joseph Beale a bankrupt. The first ception was to the Master's report of priority of sum due on foot of a deed of the 9th of Sepmber, 1837, by which Joseph Beale, conveyed to illiam Beale, certain premises upon trust, to inmnify the defendant, Richard Garret, against bilities incurred for the bankrupt, on which Garsubsequently was compelled to pay considerable ms. This deed was not registered. Joseph ale became a bankrupt in April, 1842, and the tificate of the appointment of the assignees was ly registered 20th June, 1842. The Master rerted priority to the deed. To this report the ignees excepted.

Green, Q.C. with Darley for the exception, cited, e v. Alsop, (5 B. & Ald. 142); Anon (Dea & itt. 349); Warburton v. Loveland, (6 Bli. 1); ittersby v. Rochfort (8 I. E. R. 284. 2 J. & L. | 1); Butcher v. Harrison, (4 B. & Ad. 129, S.C.; R. & M. 677); 3, 4, Vic. c. 110, s. 46. Brewster, Q. C., with F. Walsh, for the defennt, Richard Garrett, cited, Jones v. Gibbons, (9 es. 407); Mitford v. Mitford, (Ib. 87, see page 10); Saunders v. Leslie, (2 B. & Bea. 509 see ge 515); Loveland v. Ivie, (1 H. & Bro.

3).

Darley in reply, referred to Drury v. Ham, Atk. 95); Sumpter v. Cooper, (2 B. & Ad. 223); -parte Coles, (Ï Dea. & Chitt. 100); Latouche v. nsaney, (1 Sch. & Lef. 137.) LORD CHANCELLOR.-It seems strange, that s question should have occurred for the first e under the late bankrupt act, as a similar might have arisen, as the law previously exed. I should wish to look a little more carefully o the cases which have been referred to. The estion seems to be, what does the act give to creditors, whether it is not merely the property which the bankrupt can honestly dispose of. Nov. 8.-LORD CHANCELLOR.—I shall overrule s exception. The case of Sumpter v. Cooper, B.& Ad. 223), gives me some difficulty, as it seems posed to the general bearing of the other cases, d is expressly so, to the case of Jones v. Gibbons, Ves. 407); Ex-parte Coles, (1 Dea. & Chitt. 0), appears to be an authority against the asgnee, but the statement of the case shows that may have been determined, on the ground of an uitable mortgage, not admitting of registration. isregarding Doe v. Alsop, which was a contest th a subsequent deed; the case which most af ts the question, is Sumpter v. Cooper. But that se was decided on another point, and Jones v. Gibns was not mentioned, but the judgment seems to on the assumption that an unregistered deed is Did. In that case, the marginal note is, “a debtor

creditor as a security, and afterwards executed an assignment of his interest in the houses to the same party, but this instrument was never registered, pursuant to the statute 7 Anne, c. 20. The debtor afterwards became bankrupt, and the assignment of his effects, under the commission, was duly registered, the assignees brought an action against the creditor for the rents of the houses, which he had received from the time of the assignment made to him by the bankrupt. Held, that although this instrument was void, the rents which the defendant, being the equitable mortgagee, had received, could not be taken out of his hands by virtue of the registered assignment under the commission." In the statement of the facts, it is said that the assignment took place under circumstances which formed a strong case of fraudulent preference, and the instrument was never registered. Then at the trial, the Lord Chief Justice directed a non-suit, reserving liberty to the plaintiff to move to enter a verdict in their favour, if the court should think the equitable mortgage unavailable. It is clear, that fraudulent preference could not have been an ingredient in the case, if it were, that question should have gone to the jury to determine. It is not easy to see what view the court took of the point, the registry act was cited by the counsel, Campbell, (I believe afterwards Lord Campbell,) who contended that the equitable mortgage was merged by the assignment, that even if subsisting, it was void for want of registration, and was not available at law, and assumes all along that the assignment was void; he also cited Doe v. Alsop, no one seems to contradict him, and the Court, thus entirely passing by the deed itself, says, "we are of opinion that the nonsuit was right, the defendant was the equitable mortgagee of the bankrupt's moiety of the premises, and having received the whole of the rents, he would have an equitable right to retain them against the bankrupt, if he had remained solvent, or he has the same right against the assignees, who can only recover that to which the bankrupt was both legally and equitably entitled; as to the statute of Anne, we think it cannot apply to the case of an equitable mortgage, it refers only to the registration of deeds, and where there is merely a lien or equitable mortgage, created by the deposit of deeds, there is no instrument to be registered," This case appears to go against the whole current of authority, though there is a good deal to be said on the subject, particularly when we consider the case of Warburton v. Loveland, (6 Bligh.) I do not know whether the assignees may not think it worth while to have a case sent to a court of law, but my present impression is with the current of authority. (The assignees having declined to take a case.) cannot well get out of the case of Sumpter v. Cooper, except on the ground of its not having been fully argued, but I am forced by the general bearing of the cases to overrule this exception.

ROLLS COURT.

HILLAS V. PHILLIPS.-Nov. 17. Practice-Substitution of Service-Decree.

I

permit substitution of service of a decree and memorandum under the 104th General Order. This was an application to substitute service of a decree and memorandum under the 104th General Order, and a subpoena for costs.

L. Morgan. On Sunday the 5th of November, the plaintiff served the defendant personally by handing him a copy of the decree and subpoena, but this being irregular, on the following day the plaintiff went to the house of the defendant, whom he saw in the parlour, plaintiff went to the window, and shewing defendant the decree, posted a copy on the outside of the window. In Daniel's Ch. Pra., Vol. 2, p. 1025, it is laid down that under the old practice substitution of service of a decree has been allowed, and that probably now, under special circumstances, the court would permit the decree to be served on the solicitor.

MASTER OF THE ROLLS.-You may take the order, serving a copy through the post-office.

Held

Where a person was put into possession of a gatehouse as care-taker, and, after several years, refused to deliver possession to the owner. that a bill for an injunction will lie. The bill was filed for an injunction to put the plaintiff in possession of a gate-house occupied by the defendant, and stated that in the year 1819, Daniel Moore, deceased, hired the defendant as a servant, and put him into the gate-house as caretaker, and that the defendant never was a tenant; that Daniel Moore by his will demised the beneficial interest in the premises to H. Moore, with the remainder to Wm. Moore. That after the decease of the testator, probate was granted to William Moore and Robert Molyneux. That William Moore, as executor, paid the defendant his wages up to February, 1848, and also gave him a gratuity. That William Moore discharged Marsh, but did not require him to give up possession of the gatehouse. That in August, 1848, an agreement had been entered into with a Mr. Belas for an assignment of the premises, including the gate-house, that Mr. Belas called upon Moleneux to give him possession, which was demanded from Marsh, but refused. That Marsh threatened to resist any attempt to remove him by force. That plaintiff was reluctant to assert his right to take possession, as it might lead to a breach of the peace.

Martley, Q. C.-This is a case in which this court should exercise its authority. Biddulph v. Molloy, (2 I. E. R. 228); Sherrock v. Chartres, in note to Biddulph v. Molloy; Edgeworth v. Edgeworth, (2 Bro. P. C. 27, Tomlin's ed.; Furlong, L. & T. 210. (Master of the Rolls-The passage referred to is that of the determination of a tenancy; in the present case there never was any tenancy. I wish to know has this proceeding ever been applied to a case of lawful entry and forcible detainer, where the relationship of landlord and tenant does not exist.) In the case of Biddulph v. Molloy, the tenancy had determined, that was a case of forcible

CALLAGHAN v. Callaghan.—Nov. 27. Receiver-Ejectment-Leave of the Court. Where an ejectment was brought against lands over which a receiver had been appointed, upon application to the Court the proceedings will be stayed, and, in every such case, leave of the Court to bring an ejectment should be obtained; and, if the receiver has funds in hands, he will be compelled to pay the costs incurred by nonpayment of the rent.

THIS was an application on behalf of Walter Morrogh, the receiver in the cause of Callaghan v. Callaghan, that the proceedings by ejectment, brought by J. Hunt, the receiver in the causes of Gage v. Ld. Audley, and Nelligan v. Ld. Audley, for non-payment of rent, should be stayed, the said Walter Morrogh undertaking to pay one year's rent, inasmuch as said ejectment was brought without any formal demand for the rent, and also without leave of the court.

It appeared that in May, 1848, W. Morrogh, who had been appointed receiver in the cause of Callaghan v. Callaghan, was extended over the lands of Castlehaven, against which the ejectment had been brought, and the rent of which was payable to Mr. Hunt, the receiver in the cause of Gage v. Ld. Audley, and Nelligan v. Ld. Audley, upon the passing of his account in the month of May, 1848, there being a large arrear due upon this estate, the Master refused to allow Mr. Hunt poundage. Shortly after this, Mr. Hunt caused a statement of facts to be laid before the Master, who directed an amended statement to be filed at the receiver's expense, which was accordingly done on the 24th of June, and the Master, by his report, directed ejectments for non-payment of rent to be brought against the lands.

Brewster, Q. C., with whom was R. Deasey, now moved to have these proceedings stayed, the leave of the court not having been obtained, and relied on the cases of Cocker v. Tempest, (7 M. &W.502); Jefferies v. Sheppard, (3 B. & Ald. 696). There should have been a demand, McIntosh v. Haydon, (R. & M. 363).

Hughes, Q. C., and Hunt, contra.-The case of Townshend v. Somerville, (1 Hogan 99) decides that an application need not be made to the court for liberty to proceed in ejectment proceedings until the habere is about to be executed.

MASTER OF THE ROLLS.-I have a clear authority to deal with this case. Even if the case of