the proceeds paying off the demands on other writs, according to their priorities. This return is clearly bad according to the authorities. In Lorick v. Crowder, (8 B. & C. 132), it was decided, first, that goods seized by a former sheriff, and not sold after considerable delay, should have been seized by the subsequent sheriff, under a writ subsequently delivered to him; secondly, that where the second writ was delivered to the sheriff, and he found that

any

Lord Tenterden is too strong for you to struggle against. The sheriff must amend his return. Order granted.

EXCHEQUER OF PLEAS.

ASSIGNEE OF BROWNE v. BROWNE.-Nov. 8 & 24. Practice-Assignment of judgment by Assignee of Insolvent-Conusee.

Where a judgment, the property of an insolvent conusee, is vested in his assignee under the Insol vent Act, the court will direct an assignment by the latter to a third party, to be enrolled without the judgment having been revived in the name of the assignee of the insolvent.

W. Brereton moved that the officer should be at liberty to enrol the memorial assignment of a judgment under the following circumstances. The conusee of the judgment had become insolvent, and the assignee had contracted to assign the judgment, but the officer refused to enrol the memorial of assignment without the special order of the Court.

the officers of the former sheriff were in possession, it became his duty to inquire by what authority they were there; and thirdly, that the possession of the former sheriff is no more than the possession of third a bill of sale. And in person under the same case, Bayley, J. says, "There cannot be any doubt that these goods were liable to the plaintiff's execution. Where a plaintiff sues out execu tion, and seizes under a fieri facias the goods of his debtor, and suffers them to remain long in the debtor's hands, a subsequent execution creditor may treat the goods as the goods of the debtor. The only question is, does the change of sheriff make any difference? and then he proceeds to say that the second sheriff should have asked to see the warrant, and when he found from its date that there had been gross delay, he should have treated the first execution as fraudulent and void, and have seized the goods. Payne v. Drewe, (4 East, 522,) is also an authority for this point. Then there is no difficulty as to the form of the action. In Nov. 24.-Brereton-The effect of the Insolvent Chambers v. Coleman, (9 Dow. P. C. 588,) where Act is to vest the legal and equitable estate in the the circumstances were similar to those of the pre-judgment in the assignee, and the act gives him as sent case, the sheriff having recited in order a number of writs previously delivered to him against the same defendant returned, that by virtue of the said several writs, and according to the priority thereof, he had seized the goods and chattels of the defendant, and that they remained in his hands for want of buyers. The sheriff here might have adopted that form, but, at all events, the present return is informal and bad.

D. Lynch and J. Pennefather, contra. This return is perfectly good and valid, and the only one which the sheriff could have made under the circumstances, and it is the one which is most for the benefit of the execution creditor. The case before Lord Tenterden was the case of a false return. The question there, was not whether the return was good, but whether it was bona fide. Here there is no allegation that the return is false, and, if it be true, it is good on the face of it. The case cited from 9 Dow. is an authority for the present return. The return there was identical with the present return. Under all the rules of this court, the return must be taken to be true. (Doherty, C.J. That is the very ground for this application that the return being true is informal.) No other return could be here made. The legal effect of this return is the same as if the Sheriff had returned that he himself had seized the goods under the former writs, and that they were in his hands for want of buyers. And the plaintiff cannot be prejudiced in any way, for it appears that there is only £800 worth of goods, and that there are prior executions to the amount of £3000. This return is fully warranted by precedent.

PER CURIAM. The authority of the case before

LEFROY, B. having intimated a doubt, whether the proper course would not have been for the insolvent's assignee to revive the judgment, and thus bring himself into privity with the record, directed the case to stand for the full Court.

perfect a legal title as any revival by scire facias could confer. Where a judgment was assigned to new trustees under 1 W. 4, c. 60, the court directed a memorial of the assignment to be enrolled. Burrowes v. Hogan, (2 1. L. R.369). Counsel also cited Collis v. Mahon, (Jones, 132, S. C. 3 L. R. 2 s. 144,) in which case the Bankers' Act, 32, G. 2, c. 14, was held to vest a judgment legally in the trustees, without a memorial enrolled. Fortescue v. M Keon, (1 J. & Sy. 347-8.) The uniform practice in the Queen's Bench is to enrol such assignments

as a matter of course.

PIGOT, C. B.—My difficulty at first arose from the terms of the second section of 9 Geo 2, c. 5, which seems to contemplate that assignees onlywho have become such by memorials duly enrolled

should have execution, and the other remedies, on the judgment. The terms of the fourth section, however, seem sufficienly large to let in the present case, and those referred to in argument. We shall therefore make the order, the memorial to recite the vesting order.

BALLINA UNION v. WALSHE.-Nov. 22-23.

Pleading-Tender.

A declaration in debt contained four counts, pleas
of tenders to the first three, on which issues were
taken and found for the defendant; to the fourth
count was pleaded:
:- "As to the said sum in the
last count of the declaration mentioned residue of
the said several sums above demanded over and
above the said sums in the first, second, and third
counts mentioned, the said defendant says he does
not owe the same, or any part thereof, to the said

plaintiffs, in manner and form as the said plaintiffs have thereof," &c. On issue on this plea, held that plaintiffs should have shewn debt beyond the sums contained in the first three counts. Where defendant told plaintiff's agent that an amount more than sufficient to cover the demand was in desk in the room, and desired his son to hand the amount to the agent; and the son rose to do so, but was interrupted by the agent, saying, that he would not at all take the money, as a third person had forbidden him to do so. This refusal dispensed with the necessity of producing the either in number or specie.

a

money,

Held also, that evidence of such a transaction was
sufficient to support a plea of tender.
Qu. Whether the consent of the Poor Law Com-
missioners to an action for rates, as required by
6 & 7 Vic. c. 92, s. 2, should be given under their
seal; and if so, whether a defendant can avail
himself of the non-production of such sealed
assent at the trial.

Qu. Whether a tender of rates to a collector on a
Sunday is a good tender. Semble, a tender to a
rate collector, whose appointment continues, binds
the guardians, though they may have expressly
ordered him not to take the money.

THIS was an action of debt brought by the Guar-
dians of the Ballina Union against the defendant,
as immediate lessor of certain tenements within the
union, of less annual value than £4. There were
four counts in the declaration, of which the first
was for sums due out of the division of Crossmo-
lina; the second and third for two separate rates
in the division of Binghamstown; and the fourth
for £50 for rates due out of lands in the union
generally. The bill of particulars claimed £43 10s.
To the first, second, and third counts, the defendant
pleaded separate pleas of tender; and to the fourth,
"as to the sum of £50 in the fourth count men-
tioned, residue of the said several sums above
demanded, over and above the said sums in the
first, second, and third counts in said declaration
mentioned, the said defendant says he does not owe
the same, or any part thereof," &c. Issue was
joined upon all the pleas; and the defendant
paid into court £43 10s., on the pleas of tender,
being the total amount claimed by the bill of par-
ticulars. The case was tried before the Chief
Baron, at the sittings after Trinity Term, 1848;
and on the issue upon the fourth count, the plaintiff
proved an offer by the defendant to pay a sum of
money on account of rates: being, in fact, the
money claimed by the first count of the declara-
tion. On the issues taken on the second and third
pleas of tender, the defendant proved that he and
his son had met the rate collector in an hotel, who,
upon being questioned, said that he would not re-
ceive rate from the defendant, having been in-
structed by the attorney of the guardians not to do
so; that the defendant rejoined, the rate due from
him must be under £50, and that there was that
sum in a desk of his in the room, from which he
desired his son to take the money and give it to the
collector, who could afterwards account for it;
that the defendant's son thereupon was proceeding
towards the desk, but the collector said he could
not at all take the money; whereupon the defend-

ant's son sat down without producing it. It further
appeared, that on the next day, which was Sunday,
a regular tender was made to the collector, who
refused the money, on the grounds he had pre-
viously assigned. A document under the hand of
the secretary to the Poor Law Commissioners was
also admitted in evidence, authorizing the bringing
of the action; and also a draft order to the same
effect, initialed by the Chief Commissioner. To
this evidence the defendant objected, it not being
under the seal of the Poor Law Commissioners.
The Chief Baron, in his charge, left it to the jury
to say whether the tenders put in issue had been
proved, stating to them his opinion as to what was
a legal tender. He also told them to find for the
plaintiff on the fourth count, if they should be of
opinion that an admission of rates being due had been
made by the defendant. To the former part of his
Lordship's charge the plaintiff objected, and to the
latter the defendant; but his lordship refused to
vary his charge. The jury found for the defendant
on the pleas of tender, and for the plaintiff on the
fourth count of the declaration.
And now, pur-
suant to liberty reserved by the learned Judge, the
objections on both sides came on to be argued.

Joseph Reeves, for the defendant. We contend,
first, that the plaintiff has not shewn the assent of
the Poor Law Commissioners to this action, as he
was bound to do by the 6 & 7 Vic. c. 92, s. 2. The
Commissioners of the Poor Law are clearly a cor-
poration (10 & 11 Vic. c. 99, s. 10), and, as such,
can do no act without seal (Steph. Comm. vol. 3,
p.126); Mayor of Ludlow v. Charlton, (6 M.&W.
815). Besides, the 10 & 11 Vic. c. 90, s. 11, ex-
pressly provides, that all rules, regulations, and
orders shall be made by them under their seal. So
likewise does 1 & 2 Vic. c. 56, s. 121. (Pennefa-
ther, B.-What right has the defendant to avail
himself of such a defence, supposing the seal to be
necessary? Can you distinguish between this case
and that of an action brought by assignees of a
bankrupt, without consent of the creditors, where
it is settled the defendant has no right to complain?)
(Lefroy, B.-The object of the clause is, to protect
the public from the waste of their funds in costs,
and not to protect parties who do not pay their
rates.) The consent is made necessary for the pro-
tection of the ratepayers, of whom the defendant is
one; and also for the protection of landlords, to
prevent their being harassed with unnecessary and
expensive litigation in the superior courts, when
they might be sued by civil bill. The cases, there-
fore, are not analogous. Secondly, we object, that
the direction of the Lord Chief Baron on the fourth
count was wrong; for that he should have required
the plaintiff to prove a demand beyond the sum
claimed in the first, second, and third counts, and
should have told the jury not to find for the plain-
tiff unless they thought his admission referred to a
sum different from those mentioned in them, Com-
pere v. Hicks (7 T. R. 727); Taylor v. Cole (3. T.
R. 296); Churchill v. Day (3 Man. & Ry. 71;
1 Chitty, 447; Bul. N. P. 17a). As to the objec-
tions raised to the evidence of the tenders in this
case, the defendant is clearly entitled to retain his
verdict. We proved a good tender on Sunday,
and the 7 Wm. 3, c. 17, does not apply to such

persons as a collector of poor rates, Drury v. Defontaine (1 Taunt. 131); Sandiman v. Breach (7 B. & C. 96); Rex v. Whitnash (7 B. & C. 596); Scarfe v. Morgan (4 M. & W. 270). Even if the tender was bad, as being made on a Sunday, the collector should have objected on that specific ground; and by not doing so at the time, he has waived the objection, Bull v. Parker (2 Doed. N. S. 345); Polglass v. Oliver (2 Cr. & Jer. 15). At all events, the tender proved on Saturday is quite a sufficient one.

such a waiver by the collector, of the actual
production of the money, as
we hold to be
sufficient evidence to support a plea of ten-
der. But, then, it is questioned, whether the
authority of the collector was not at an end at
the time of the tender, and that therefore the tender
to the collector does not affect the guardians, there
being no connexion between him and them; and it
has also been argued that the tender should have
been made in the collector's office. But even if
the guardians had duly attempted to withdraw the
authority of the collector, I should have found
some difficulty in allowing that such withdrawal
would be sufficient to vitiate the present tender.
It would lead, I think, to much collusive and op-

Whiteside, Q.C., with Otway, for the plaintiffs. The seal of the Commissioners is not absolutely necessary, either by the statutes or from their being a corporation, Mayor of Thetford's case (3 Salk. 103); Smith v. Birmingham Gas Compressive conduct if it were allowed that the colpany (1 Ad. & El. 526). And even if it were, the defendant has no right to take advantage of its absence. As regards the plea to the fourth count, the principle contended for by the defendant may be true, when pleas going to the cause of action have been pleaded to the other counts; but it does not apply where the pleas are merely in mitigation of damages, as is the case with a plea of tender. Here we allege that there is, in reality, only evidence of a dispensation with a tender, which should have been pleaded. Such was the plea in Douglas v. Patrick (3 T. R. 684). The cases on bills of exchange, in which notice is necessary, are precisely in point; and in them an allegation of notice will not be proved by evidence of a dispensation with notice, Burgh v. Legge (5 M. & W. 418). (Pennefather, B.-The difference is, that the plea of tender puts in issue an offer of payment; and if the formality be dispensed with, may be proved by any evidence shewing that fact.) (Lefroy, B.-Precisely so; for in those cases you mention, they relied on notice in pleading, and proved a waiver of it; whereas here they plead a tender, which the dispensation with the mere formality enables them to prove.) It appears from the evidence that at the time the supposed tender was made, the collector had been, so far as that sum was concerned, discharged from his office of agent to the guardians, and they, therefore, were not bound by the transac tion with him. (Pigot, C.B.—The collector was not dismissed, but was ordered to refuse; is not, therefore, his refusal the refusal of the guardians?) Counsel relied on Dickinson v. Shee (4 Esp. 67); Thomas v. Evans (10 East. 101); Phillips v. Innes (4 Cl. & Finn, 234); Krans v. Arnold (7 Moore, 59); Betterbie v. Davis (3 Camp. 70).

Richard Reeves, for defendant, was not called on. PIGOT, C.B.--We are all of opinion that the verdict for the defendant, on the pleas of tender, should stand; and that the verdict for the plaintiff, on the fourth count, should be set aside. As regards the pleas of tender, a great deal has been urged upon us, and we have been asked to reconsider what we are inclined to hold as settled law; viz., that a party, to whom money is offered, may dispense with the actual production of it, or the offer of the precise amount, and by such dispensation make an otherwise informal tender good. Such being the law, the evidence that went to the jury in this case was quite sufficient to show that there had been an offer by the defendant, and

lector might receive from one person, and reject from another. It is a mistake to suppose that the collector is an agent of the guardians, voluntarily retained, and whom they may direct and order at their pleasure. The collector is appointed by virtue of the act of parliament, and derives his authority and functions from its enactments, more than from any orders or directions of the guardians ; and it is his duty, at all reasonable times, to receive payment of the rates, whether in his office or not. It would be most dangerous to say, that if the guardians choose to receive money from one person, and not from another, that a tender by the ratepayer to the person lawfully authorized to receive shall not protect him from the consequences of such wrongful conduct. Here, however, there is no sufficient evidence of a withdrawal of the collector's authority. The guardians have not intimated their order, as far as appears; and no direction from attorney, or other person, would be sufficient to interfere with the collector. There has, therefore, been no withdrawal of authority shown; and, even if there had been, I should be unwilling to allow it to vitiate the tender. As for the tender on Sunday, we do not think it necessary to consider it, as the jury have found the tender on Saturday to have been good, but we do not wish to encourage money dealings on the Sabbath. As regards the question on the fourth count, and the plea to it, we are of opinion, upon the cases cited, that the plaintiff should have shewn a demand beyond what was covered by the pleas of tender, and that, not having done so, the verdict on it must be for the defendant. Upon the question as to the assent of the commissioners being under seal, the case being decided for the defendant ou the other points, it becomes unnecessary for us now to form a determination.

RICHARDS, B.-I concur in the judgment of my Lord Chief Baron. Without, however, intending to say, that, if the authority of the collector to receive rates had been properly and lawfully withdrawn by the Board of Guardians, a tender to hìm would then be valid.

LEFROY, B.-Without doubt, if the authority of the collector were properly and legally withdrawn, and due notice of such withdrawal given, a subsequent tender to the collector would be ineffectual; but, until then, it would be extremely inconvenient and mischievous, as my Lord Chief Baron has remarked to deprive the public of the right of paying to him. Verdict for defendant.

COURT OF CHANCERY.
MURRAY v. RICHARDSON. .-Dec. 11, 12.
Will-Codicil-Revocation.

A. by his will, bequeathed, one-seventh of a fund
to B. for life, with remainder to her daugh-
ter. The residue of the fund was bequeathed to
the sisters of B. for life, with remainder to
their children, with an executory limitation over
in default of children, in the nature of cross re-
mainders. By his codicil, A. revoked the bequest
of one-seventh to B. and her daughter, and de-
clared his intention that they should take no
benefit under his will. Held a revocation of the
interest of B. under the executory limitation.
THIS case came before the court on exceptions to
the Master's report. The question raised by those
exceptions was, whether an executory devise, in the
nature of cross remainders, was revoked bya codicil.
The Master reported that it was revoked, and to this
report exceptions were taken. The will (which was
very verbose) is, so far as material, sufficiently set
out in the judgment of the Lord Chancellor.

John Brooke, Q.C., with Gresson, for the exceptions, referred to Doedem Dearle v. Hicks (8 Bing. 475, S. C. 1 Moo. & Scott, 759); Francis v. Collier (4 Russ. 333); Roach v. Haynes (6 Ves. 153); Darley v. Langworthy (3 Bro. P. C. 359). Gilmore Q. C., with Hughes, Q.C., and J. C. Lowry, for the report cited Persse v. Daly (9 I. E. R. 508); Murray v. Johnson (3 Dru. & Warr. 143); Read v. Backhouse (2 Russ. & My. 546).

and after her decease then to her present daughter, Eliza Walker, her heirs, executors, administrators, and assigns." The disposition to her is thus different from the disposition to the other sisters, giving an interest to the daughter nominatim, while the shares of the other sisters are given to their children generally. However, this difference appears to be immaterial. He then gives three other sevenths to his sisters Catherine, Anne, and Sarah, in the same manner as those given to his sister Amelia, and the said Mary Lawson who should be living at the remaining seventh to the "child, or children, of the death of the said testator, share and share alike, if more than one of such issue, and to their executors, administrators, and assigns; and if there should be but one of such issue living at the death of the said testator, and if but one child, the seventh remaining portion to that one child, her or his heirs, executors, administrators, or assigns." Then comes the following clause of accruer as it is called, being an executory devise of the property, "and in case of the death of any of my last-mentioned sisters without leaving a child, or children, living at her death, it is my will and intention that the share or proportion of such sister, or sisters, so dying without any child living at her death shall go to and be received by the surviving sisters or sister, together with such child, or children, of the said Mary Lawson, who, if more than one, are all to be considered as one person, and to take but one person's share only, and which shares and proportions are to be vested in my surviving sisters and the children of the said Mary Lawson, for such estates, and with such remainders, and subject to such limitations over in default of a child, or children, as are herein before specified, with respect to the original seventh part so devised to them respecDec. 12th.-LORD CHANCELLOR-I have read tively; and in case of the death of any of the through the will and codicil, and the case seems children of the said Mary Lawson, without issue, one of some difficulty. Both documents seem to then his, her, or their share of the said part shall have been prepared with great care, and it is im- be equally divided among the survivors of them." possible to mistake the intention of the testator. He then charges his lands with an annuity of £60 He devised his leasehold lands to trustees therein for the said Eliza Walker, the elder, and a sum of named, to hold upon trust, to pay certain por- £1,000 to Eliza Walker, the younger, in satisfaction tions to some of his sisters (he having then six) of some trust money of theirs misapplied by him; and and the children of a deceased sister, Mary Law-in case all his sisters, and their children, should son; he then disposes of the surplus of the rents and profits, but appears to contemplate that disposition continuing only during the time those portions shall remain unpaid; and, after their payment, he bequeaths the rents and profits as follows:-"Oneseventh part thereof to the said Charity Ashmore, during her natural life, and from and after her decease, to such child or children, male or female, lawfully to be begotten, as she shall leave at the time of her death, share and share alike, if more than one, his, her, or their heirs, executors, administrators, or assigns. One other seventh part to the said Amelia Johnston for and during her natural life, and from and after her decease, then to the child or children, male or female, of the said Amelia Johnston, lawfully begotten, whom she shall leave at the time of her death, share and share alike, if more than one, and to his, her, or their heirs, executors, adininistrators, and assigns. Another seventh part thereof to the said Elizabeth Walker for and during her natural life, and from

Gresson, in reply, cited Doe Dem Murch v. Marchmont (6 Man. & Gr. 813); Newman v. Lade (1 Yo. & Col. C. 680); Beauclerk v. Meade (2 Atk. 167).

die without issue, he devises all the lands to his right heirs; then, after some bequests, he devises all the residue of his property to such of his sisters as should be living at his decease, and the children of any of his deceased sisters as should then be living, share and share alike, the children of such deceased sisters, if more than one, to be taken and considered as one person only, and to receive only one person's share. After this he makes a disposi tion with respect to two sums of £200 and £400, which he directs to be paid by John Blair and James Lawson, to entitle their families to the benefits thereby bequeathed them, which sums he orders to be applied in payment of his debts, or to be divided amongst his sisters. On this portion of the will there can be no question-the codicil creates the whole difficulty. There is no doubt of the intention; he considered that Mrs. Walker had disentitled herself to any benefit from him, and seems to have taken special care to exclude her from all such benefit. If he has failed, it is not