ing deed, the instrument complained of, was executed "This indenture, made the 16th day of May, 1846, between Mary Muskett, of Peterborough, in the county of Northampton, widow, the sole executrix, and a legatee named in and appointed by the last will and testament of Charles Ashby, late of Peterborough aforesaid, gentleman, deceased, of the one part; and Charles Gillson Staplee, of Peterborough, farmer, who married Sarah, the daughter of the said Charles Ashby, deceased, of the other part. Whereas the said Mary Muskett hath heretofore placed in the hands of the said Charles Gillson Staplee the sum of 500l., for 2007., part of which, a note of hand has been given, by way of memorandum, to the said Mary Muskett by the said Charles Gillson Staplee, the receipt and payment of which said sum of 5007. he, the said Charles Gillson Staplee, doth hereby admit and acknowledge to be by him, his executors, administrators, and assigns, paid and applied to and for the several ends, intents, and purposes hereinafter mentioned and declared of and concerning the same: now this indenture witnesseth, and it is hereby declared and agreed by and between the parties to these presents, that the said sum of 500l. so placed in the hands of the said Charles Gillson Staplee was so placed in his hands, and that the said Charles Gillson Staplee, his executors, administrators, and assigns, shall stand possessed of and interested in the same, upon the trusts and for the intents and purposes hereinafter declared and expressed-that is to say, that he, the said Charles Gillson Staplee, his executors, administrators, or assigns, do and shall pay and apply the interest of the said sum of 500l., at and after the rate of 41. per cent. per annum, to the said Mary Muskett, for and during the term of her natural life; and from and immediately after the decease of the said Mary Muskett, upon trust, that the said Charles Gillson Staplee, his executors, administrators, or assigns, do and shall pay and apply 1007., part of the said sum of 5007., to Susan Staplee, daughter of the said Charles Gillson Staplee, to and for her own use and benefit; 100., further part of the said sum of 500l., to Sarah Staplee, another daughter of the said Charles Gillson Staplee, to and for her own use and benefit; 2007., further part of the said sum of 5007., to Henry Tansley, now living with the said Mary Muskett; and 1007., being the remaining part of the said sum of 500l., to Lucy, the wife of Robert Tansley, of Crowland, in the county of Lincoln, sawyer, to and for her own use and benefit, exclusive of the control of her said husband; and for that purpose it is hereby covenanted and agreed, that the said Charles Gillson Staplee, his executors, administrators, and assigns, shall, from time to time, pay and apply the same in such manner so as to effectuate the above intent and purpose." This deed was executed by Mrs. Muskett, she making her mark, being unable to read or write. The attestation was thus: "Received heretofore the sum of 5007. Charles Staplee. Witness, George Platel." Mr. Platel, the attesting witness, a solicitor at Peterborough, had prepared the deed, and ingrossed it, and debited Staplee and Mrs. Muskett, in equal shares, with the amount of charges and stamps; and no one but Mr. Platel, and Staplee, and Mrs. Muskett were connected about the matter. The charges of the bill were, that Mrs. Muskett, when she executed this deed, considered, upon the representation of Staplee, that it was a mortgage on his farm for the 5007., and that she did not have the deed read over or explained to her. The bill prayed that the deed might be delivered up to be cancelled, as being fraudulent and void, and as being a fraud upon the marital right of Griggs, who was under a treaty of marriage with her at the time, and was known to be so by Staplee. The case made by the answer was, that Mrs. Muskett was, although ignorant, a very shrewd woman of business, and knew perfectly well what she was about; and that, as the defendant's daughters were

grandchildren of Mrs. Ashby, it was natural she should provide for them, and that she had that intention; and as to the Tansleys, they were her own relations. For the plaintiffs several witnesses were examined, and among them Mr. John Ashby, Mr. Pearce, a surgeon at Peterborough, and Mr. Gaches, who, in their evidence, thus spoke of Mr. Staplee and of Mrs. Muskett. Mr. Ashby said, "I never had dealings with Mr. Staplee on my own account, but he married my sister, and I have been a good deal in his company. I think he is a man of good abilities and education. I went to school with him, and he was considered very clever there. He has a good knowledge of business and of money transactions, and I know, that, in matters of account, he thinks he is not to be beat." Mr. Pearce spoke of Staplee's intimacy with the testator, and of the confidence placed by the female plaintiff in him, (Staplee). "He has spoken to me about her health, and would speak familiarly; such as, You must take care of the little woman, doctor,' or in that way. She was very fond of boasting of the money she had; and one day, when she named it to me, I said, 'Mind you take care of it.' This was soon after Mr. Ashby's death. She said, in reply, 'He would always see her righted.' She alluded to Mr. Staplee; at least, so I understood it. She seemed to place the greatest reliance on him. She is, I think, a person fond of flattery, and what I should call a gullible woman, who would be easily led. I think her quite ignorant of matters of business; she was a good servant and a good housekeeper, but from her want of education I considered her a servant only." Mr. Gaches, the wife's solicitor, stated that Mary Griggs wanted ordinary knowledge; was ignorant of the ordinary transactions of life; was easily influenced, and illivery terate, and that she would readily fall into the opinions of others; that she placed entire confidence in Staplee, and spoke of him as the only friend she had to tell her mind to, and that, before acceding to anything, she would say that she would hear what Charles said, (meaning Mr. Staplee). Mr. Platel was examined as a witness on behalf of the defendants, and was cross-examined; and his evidence was, in substance, as follows:

"That the female plaintiff had directed him (Mr. Platel) to prepare a deed of trust, whereby the sum of 5007. was to be settled, the interest to herself for life, but the disposition of the capital was not determined until after the draft had been submitted to her, when she requested him to insert the names of Susan and Sarah Staplee, who were the granddaughters of her old master, Mr. Ashby, and who were to have 100%. each after her death; and named, as the other objects of her bounty, her sister and her nephew; that the instrument was read over to the female plaintiff, who appeared perfectly to understand its nature and effect; that Mary Griggs expressed no desire to consult any other party as to the deed; and that he did not know that Mr. Gaches was her usual legal adviser."

Russell and Nalder, for the plaintiffs, contended, that there were two important grounds for setting aside the whole transaction: the first was, that Mrs. Griggs, a very ignorant and illiterate woman, had been overreached by the defendant, a man of business habits, and induced, in consequence of the confidence she reposed in him, to execute a deed, which she believed to be a mortgage of his estate to secure her money, when, in truth, she was executing a settlement, by which her money would be tied up for her life, and possibly longer, and then given, as to part of the capital, for his own children; and this deed executed in the presence of his own attorney, and not hers, although she had a regular legal adviser. The second ground was, that the transaction was a fraud on the marital rights of Mr. Griggs; for the defendant very well knew, at the time of the execution of the deed, that a contract of marriage existed, and, therefore, every disposition of her

Bacon and Seliryn argued, that the cases made by the bill were inconsistent; for if Mrs. Griggs was so illiterate and ignorant and gullible as to be the victim of such a fraud, as being entrapped to execute a settlement when she thought she was executing a mortgage, she could not be a woman capable of joining in the other alleged fraud-of joining with others in defeating the right her intended husband would legally have in her property. The two characters of her, and the two theories of the plaintiffs' bill, were wholly inconsistent. Then, it had been asserted by the bill, that Mr. Platel, the attorney of Mr. Staplee, had joined in the fraud; while the case made at the bar was of a very different nature; and it was quite out of all question to suppose that a solicitor of very long standing and of great respectability, under any circumstances, could be believed to have so misconducted himself. Then, as to the fraud on the marital right, to establish such a case it is necessary to shew not only that there was some talk or even intention of marriage, but that a binding contract had been entered into for that purpose by the parties; and that the defendant knew of such contract, and did the act complained of for the purpose of defeating it.

Renshaw appeared for parties interested under the settlement.

Russell, in reply, insisted that a contract of marriage was not necessary to support a charge of fraud on the marital right; but a mere intention to marry, and an actual marriage afterwards, were quite enough. (Goddard v. Snow, 1 Russ. 485, and Wake v. St. George, 1 My. & K. 610).

KNIGHT BRUCE, V. C., during the argument, observed, "If a party, having no wicked or improper intention, advises a party to enter into an imprudent or improvident transaction, and with that view takes such other party to his own attorney, and the party who enters into the transaction adopts the attorney and acts upon his advice; and supposing the attorney, from incapacity or ignorance, and without any wicked or improper intention, permits the completion of such imprudent or improvident transaction, such a case may not be permitted to stand, although it may not be a case of frand."

Nov. 25.-KNIGHT BRUCE, V. C., after stating the object of the suit and the history of the transaction, as disclosed by the evidence, said-That Mr. Staplee, at some time or times before or after, or before and after, the execution of the deed by Mrs. Muskett, did receive from her money to the amount of 500l. at least, cannot be doubted. It is, indeed, the case of himself and his daughters, that he is chargeable with the capital sum of 500%, received by him from her, partly before June, 1846, and partly in that month, as he says. The retention by Mrs. Muskett of the piece of unstamped paper may be thought not a circumstance adding strength or credit to the deed; but attributing in no way that circumstance as favourable to the plaintiffs, and assuming that she had an intention in favour of the Tansleys, who were her relatives, and of Mr. Staplee's daughters, I apprehend it is impossible to deny that this deed was an instrument, the execution of which was an indiscreet and imprudent step on her part. The deed did not reserve or give to her any interest-any interest independent of coverture, nor any contingent or other power of acquiring security or investment, nor of revocation or alteration by will or otherwise. Now, although a widow, she might not despair of another marriage. I do not collect that she was past childbearing, or that she thought herself so; moreover, every person mentioned in the deed might become bankrupt, or die in her lifetime, or treat her ill. Mr. Staplee, however secure his circumstances in 1846, might possibly have become or may become in

or he may die worth nothing. If I were obliged, upon the materials before me, to express an opinion whether more than half of what this uneducated servant was worth in the world was affected by the deed, that opinion would be in the affirmative. Can it be a question, then, under the circumstances to which I have referred, that she should have been recommended not to execute such an instrument? That, ignorant and a woman as she was, she ought, before executing it, to have had the various particular respects in which it was objectionable brought under her attention, it must, I suppose, be in vain to deny. This duty would have been incumbent on Mr. Gaches, if he had been consulted on the subject, which he was not. As the matter was transacted, that duty was cast upon Mr. Staplee and Mr. Platel, the only actors with Mrs. Muskett in the transaction of the settlement, or by one of these two gentlemen. Now, Mr. Staplee was not, and probably without the consent of the parties in this court could not have been examined as a witness in the cause; he has, however, put in two answers, one to the original bill and one to the amended bill; but I think it right to say, that his conduct, in reference to the matter in question, seems to me open so much to just observation as to render it impossible to allow to those answers any weight against the plaintiffs' case. Now, if there is proof that this woman received advice or assistance on the subject of the deed before her execution of it, that proof is afforded only by Mr. Platel's testimony; and whether that affords any at all, I need scarcely say. What course the business would have taken if Mr. Gaches had been consulted, cannot perhaps be said; but, as matters were, it seems plain enough, that, whether from ignorance, from incapacity, from negligence, or from bad attention, upon the part of one or both of the two actors, each of whom, one or both, owed her the duty of advice and protection, she executed the deed without such advice, and without such protection as she ought to have had; and that the transaction is impossible to be viewed with approbation; or that the Court, with any conscience, can be able to ascribe to the want of attention, of knowledge, or capacity, or only of delicacy, the manner in which this very ignorant and not very wise woman was left to execute this instrument. I may observe, that the compliments to her capacity for business, and the powers of her mind, which are paid by Mr. Staplee's answer, seem to be confined to those documents, and are not discoverable in the evidence. [His Honor read at great length the evidence before stated, and proceeded:-] Upon the whole, had the plaintiffs, by their bill, put their case on those grounds which are sustained by their evidence, as I view and estimate it, and which are, in my judgment, not displaced by the opposing evidence, as I view and estimate that opposing evidence, I should, it is probable, have now made a decree in the plaintiffs' favour for the 500l., and against the deed. But the bill, as I understand it, puts their case upon two grounds merely: the first being, that, independently of any question of fraud upon Mrs. Muskett simply, and whether, if she had remained a widow, she would or would not have been entitled to relief against the transaction impeached, it is invalid in equity against the other plaintiff's marital rights, upon the principle laid down in Goddard v. Snow, (1 Russ. 485), and Wake v. St. George, (1 My. & K. 610), and some earlier authorities there mentioned; the second being, that the deed was the produce of sheer imposture, and plain cheating in the broadest manner, so as to be open certainly to a criminal prosecution; that it was obtained mainly from Mrs. Muskett by a most disgraceful conspiracy-a successful conspiracy between Mr. Staplee and Mr. Platel to entrap her into the execution of the deed, under the fiction and pre

tence that it was a mortgage merely for her security and benefit; and that she so understood it from their representations at the time. Now, as to the first of these two grounds, if it had been proved in the cause that the plaintiff Thomas Griggs was engaged to be married to the other plaintiff at the time when she executed the deed, and if it were also a safe inference, that, until he had married her, he was in ignorance of the transaction, and without any useful or substantial information, I think that, although she is a co-plaintiff, I should probably have ruled against the transaction at this stage of the suit; but such a case is, in my opinion, not established. There is, however, enough before me, in my judgment, to render it right for the Court, if the plaintiff Thomas Griggs wishes it, to allow the plaintiffs to try these two questions of fact before a jury: first, whether, before the time when Mary Griggs (then Mary Muskett) executed the deed, the plaintiff Thomas Griggs was contracted or engaged to be married to her; and, secondly, whether, before the marriage, Thomas Griggs was aware or informed that she had made some settlement in favour of or for the benefit of Susan Staplee, Sarah Staplee, Lucy Tansley, and Henry Tansley, or some or one of them. If Mr. Griggs shall decline to try these issues, as perhaps he not unwisely may, or shall fail upon either of them, I must, I think, hold, that the first-mentioned ground fails. With regard to the second ground, the proof, also, in my opinion, is deficient, but not so far as to induce me, if the plaintiff Thomas Griggs wishes to try the issue whether the execution of the deed by his wife was fraudulently obtained, not to allow him to do so. Upon the pleadings and the present proofs taken together, I can do no more for the plaintiffs than I have said. If the plaintiffs elect, and very possibly it may be prudent for them to elect, not to go before a jury, I must, as the case stands before me, dismiss the bill, without prejudice to another suit. As to the costs in that event, it is true that some parts of the plaintiffs' evidence are open to remark, and the imputation made by the bill upon two persons, one of them an attorney of forty years' standing, is very grave certainly; but when men have thought it fit to engage with an ignorant woman of inferior station, able neither to read nor to write, in a transaction such and so conducted, as by such facts as are substantially beyond dispute (whatever the true state of the alleged facts that are not substantially beyond dispute) the transaction in question is shewn to have been, no fourth person being present, they ought not, I think, to wonder much, or to complain heavily, that she makes the accusation against them concerning it which she has made, the accusation throughout being a charge of stating falsely to her the contents and nature of the deed, to the intent and with the effect of procuring or causing her to execute that instrument or document, varying, to their knowledge, at the time materially, and wholly in form and substance, from her intention, and which charge is, I agree, not proved. But had the charge been, as to one person, of wheedling her weakness and ignorance into the commission of an act of indiscretion prejudicial to her and useful to him, and, as to both persons, of omitting, whether by negligence, through incapacity, from ignorance, or wilfully, to afford to her advice and assistance which she needed, and which from them were her due, my opinion as to charge might-I repeat, as to such a charge-have been materially different. If the bill is now dismissed, it must be without costs.

VICE-CHANCELLOR WIGRAM'S COURT.

WINTHROP V. MURRAY and Others.-Dec. 9. Practice-Dismissal-Order 118 of May, 1845. Motion to dismiss for want of Prosecution refused, with Costs, it appearing that the Solicitor for the Party

moving had filed an Answer for another of the Defendants within the Period allowed for obtaining an Order to amend the Bill.

The bill in this case was amended a second time on the 4th May, 1848. On the 10th June, 1848, Murray, one of the defendants, filed his answer to the bill so amended, and, on the 30th October following, served notice of motion for the 13th November, to dismiss for want of prosecution. Upon the motion coming on to be heard, it appeared, that the answer of Marshall, another of the defendants, had been put in on the 5th August, 1848, and that the time for replying to such answer, or of amending the bill, did not expire till after the 13th November, the day for which notice of motion was given. The only question, therefore, was, by whom the costs of the motion were to be paid.

Glasse, in support of the motion, asked for the costs. Elderton, contra, for the plaintiff, said, that the defendants, Marshall and Murray, had throughout the cause been represented by the same solicitor, and submitted, that the motion, as it was made through a solicitor aware of the fact, that an answer had been filed on the 5th August, was irregular, under Order 118 of May, 1845, by which it is provided, that a defendant is not to be at liberty to move to dismiss a bill for want of prosecution until after the expiration of the time within which a plaintiff may obtain an order to amend such bill. [He referred to Calvert v. Richards, V. C. E., November, 1846, (unreported), in which case a motion to dismiss the bill for want of prosecution was refused, with costs, it appearing that the solicitor through whom the motion was made had also filed an answer for another defendant, the time for replying to which had not expired at the date for which notice of motion was given.]

Sir JAMES WIGRAM, V. C., refused the motion, with costs.

Pashley moved for a rule nisi to set aside the writ in this action, and the copy and service thereof. The affidavit of William Pratt Tattersall, of Bradford, in Yorkshire, the above-named defendant, upon which, among others, the rule was moved for, stated, " That, on Monday, the 4th December instant, he, the deponent, was served with the paper writing hereunto annexed, marked A., purporting to be a copy of a writ of summons in this cause, issued out of this honourable court,' &c. The jurat purported to be sworn before the commissioner at Bradford, on the 5th December, 1848. A similar motion had been made before Patteson, J., at chambers, who refused it, upon the objection then taken, that the affidavit was defective, in not stating a date. The affidavit of the defendant may be read, as if it had stated that on the 4th December he was served with the copy of the writ therein set out. Monday, the 4th December instant," is the 4th December, 1848, if credit is to be given to the commissioner who took the affidavit. The jurat authenticates the taking of the affidavit as an act done on the 4th December, 1848; and verba relata in esse videntur. (Prince v. Nicholson, 5 Taunt. 333, 337). In Hughes v. Brown, (7 Jur. 1136; 1 D. & L. 788), the affidavit was of service "on the day of the date hereof;" there was no statement of a date, except in the jurat. [Coleridge, J.-The word "instant has no definite meaning without referring to the jurat. The date of the writ is not referred to as material to any fact stated