ledge or belief, had added or inserted said words or any of them; and the said lease was in the same state and condition, making allowance for the effect of time, as when same was in their father's possession. That on the 28th day of February, 1866, said motion came on to be argued before Judge Hargreave, and petitioners submitted, amongst other things, that they were entitled to an issue to a jury directed to try the question. That Judge Hargreave made his order on the 28th February, 1866, whereby he declared that the lease to Bryan Reilly, dated 1st January, 1802, did not, at the time of the execution, contain the clauses of renewal which now appear therein. And petitioners submitted that the said order was erroneous; and that the said motion of the petitioners, Alexander Montgomery and wife, should and ought to have been refused so far as it sought to make said lease null and void, and that an issue should have been directed to try whether the words-" and also renewable every thirty-one years after the demise of said lives at three grains of pepper-corn," were inserted in said lease after the execution thereof by the respective parties, or whether said words were written therein after the execution of said deed. To this petition of appeal the respondents filed an answer in support of Judge Hargreave's order, now appealed from. The views taken by that learned Judge are contained in his Lordship's judgment, which was delivered in the Court below, and which is as follows: able lease. I attach no importance to this latter point, because it is quite possible it should be so in any view of the case. It is clear from an inspection of the three lives that they were originally for the term and lives only by the insertion in writing of the proper words for that purpose, though in reference to one of the leases (Patrick Murtagh's) if it was considered by itself this fact would not be very apparemt except from a comparison of handwriting. In that lease the words in question stand in a perfectly intelligible form coming in at the end of the habendum, and before the words "yielding and paying." It must be admitted, however, that there is a difference of handwriting, but whether of itself sufficient to attract attention or cause suspicion I will not undertake to say. In the two other leases produced, after the last word in the habendum, the word “continue," the words "he the said lessee, his executors, administrators, and assigns, are inserted, and but for the interpolation these words are antecedent to the reddendum "yielding and paying." In these two leases, therefore, the fact of an interpolation after the leases had been prepared is obvious, for the words in question come in an unintelligible and ungrammatical place, with the middle of the reddendum separating the person who is to pay the rent from words obliging him to do so. Now it is said—and with perfect truth-that this is consistent with the notion that the words were, by agreement of the landlord and tenant, put in before execution; and it is contended JUDGE HARGREAVE. This case comes before me that in the absence of evidence the Court ought so to for an adjudication as to the validity of an alleged presume in order not to affix the charge of fraud upon clause of perpetual renewal, contained in four leases, anyone on mere suspicion. It is also contended that to different tenants, all dated the 1st day of January, each deed must fall or stand by itself, and that the 1802, made by Francis Fetherston, the owner of this suspicion of subsequent interpolation in reference to property, from the present owner's ancestors, pur- one lease should not be increased by a consideration chased in 1805. Of these leases three are produced of suspicious circumstances connected with the others. in a mutilated condition, viz. one to Francis Murtagh, I concur in these views in the main, and my opinion one to Patrick Murtagh, and one to Bryan Reilly. The (to which I adhere) that the leases cannot be consifourth, which was apparently made to Owen O'Reilly, dered together unless the owner is able to establish a is lost, and the only secondary evidence of it is a do- prima facie case of complicity between the owners of cument of the 26th day of May, 1836, purporting to these leases to effect a fraud by inserting these words be a demise from Owen O'Reilly to Peter O'Reilly. after the execution of these leases; and this brings This deed is not evidence against Mr. Jones: but the me to what I consider to be the real cause for susCourt is not satisfied, and it is not seriously disputed, pecting the genuineness of the clause in question. I that there was a fourth lease of the 1st day of Janu- have stated that there was a fourth lease of the same ary, 1802, to O'Reilly, for the same time as the other date to Owen O'Reilly for the same term and number lease, and that the deed of 1836 was meant to be an of lives, and in all material respects similar to the assignment of it. The three leases produced are on others. The interest in this lease is claimed by the the same printed form. They are filled up so as to present tenant, who derives title in some way from operate at law for thirty-one years from 29th Sep- the lessee; and as the lease is lost he relies upon tember then last, or for three specific lives, the lives what is called an assignment of it made in 1836 as not being the same in the three leases. The spaces evidence of its existence, and also as evidence that it between the printed words are as usual only partially contained the same clause of renewal. On inspecoccupied by the writing; and no particular pains were tion of that assignment, which was made thirty-six taken to prevent possible interpolation, though in years after the leases, the same words are found in it, some places there appears to have been a sort of scroll and they are a manifest and palpable interpolation, or flourish put in. Such is the condition and legal still using the term without reference to the date of effects of the three leases produced; and in all of interpolation. The whole of this deed is rather closely them there is a clause in the habendum in the same written, but at two of the legal divisions of a deed, language, purporting to make the lease renewable that is, at the habendum and reddendum, a new line every thirty-one years after demise of said lives, on has been commenced with a capital letter, leaving a payment of three grains of pepper corn. There is no portion of the preceding line blank. A space of about further covenant or clause on the subject and all the two inches and a half was thus left at the end of a provisions of the lease are the usual ones in a termin-line before the word "yielding," which commences the reddendum in the next line. That space was insufficient to put in the whole of the clause now in question; and it has been put in an abbreviated form by continuing the line in a crooked direction downwards and writing the words "at three pepper-corn grains" on the end of the line. This document is put in as evidence, first, to prove the existence of a lease to the grantor in the assignment; and secondly, to show that the lease conferred a renewable interest in perpetuity; in other words, to prove the existence and contents of the lease. The habendum of this assignment is relied on as being in effect a copy of the habendum in the original lease, made by some person who either took it directly from the lease or from the instructions of the lease as to its contents. On either view of the case it is difficult to avoid the inference that the words in question were not, at the time when the assignment was written, in the original lease to O'Reilly; for if they were, how is it possible that they could have been omitted even temporarily from the assignment? It is suggested that the assignment was drawn from memory only of the contents of the original lease, and that the clause was forgotten and put in afterwards when they remembered it. It is impossible, however, to read this assignment without becoming aware that it was copied from the printed form of lease used on this estate, and filled up in a manner similar to the other three leases. The assignment is entirely written by the hand, and under ordinary circumstances we should not expect to find it punctuated at all. In point of fact it is punctuated, and, I believe, punctuated exactly as in the printed form. If anyone will take the trouble to compare them he will find that in the written assignment there is a comma between nearly all the tautologous words as there is in the printed form. In the printed form there is the "do" with a blank sufficient to put "th" to it when there is only one grantor. In the assignment the words are exactly the same, but the "doth" has not the "th," because, no doubt, the writing of them had become obliterated in the lease, just as they are now in the lease to Patrick Murtagh. I find also that the reservation of royalties is identically in the same language, which shows that it must have been copied from one of the leases on the estate, as they are not printed; but part of the written filling-up in the original leases. In fact, the identity of the document, except in names and other necessary variations, is almost absolute. The original lease from Mr. Fetherston, who was the owner of an estate there, contains a covenant on the part of the tenant to furnish two cars with horses, leaders, and proper tacklings, and two labourers for dutywork, or to pay 78. 7d. in lieu of it. This is all copied verbatim into the assignment. The habendum in the assignment, so far from being put in from memory, is in the following precise terms: "from the 25th day of May inst., for and during and unto the full end and term of thirty-one years from thence next ensuing, and fully to be completed and ended, or for and during the natural life of Neil alias John Quinn, of Mat, eldest son of Owen Quinn, now deceased, farmer." Those circumstances leave no room to doubt that the assignment was prepared from Owen Reilly's lease; and the inference is inevitable that the words in dispute were not then in that lease, and that they have been imported into this assignment subsequently. I have now the facts of this case so far as they are apparent or can with certainty be inferred from the documents; but I have not yet referred to the evidence of the experts. In reference to the last lease, I think it clearly proved beyond all doubt that when it was executed it did not contain any clause of renewal, and that it did not contain it at the time of the assignment of 1836. This lease therefore can only be allowed for the life if it is subsisting. In reference to the two leases which contain the clauses in the wrong place, Francis Murtagh's and Bryan Reilly's, I am of opinion that in the absence of all other evidence the presumption at law is adverse to the genuineness of the leases. I quite agree that an interpolation which reads sensibly and grammatically will, in the total absence of evidence, be presumed to have been made before execution unless there be other clauses in the deed which render it prima facie impossible that the interpolation was made before the execution. For example, in this case if there were any clauses exclusively applicable to a terminable lease; but when the interpolation makes nonsense, when it turns a sentence which was originally correct into something which cannot be grammatically construed, then I think the presumption of law must be against its genuineness, for I think the Court is not to presume that the parties, especially the landlord, would sign a document containing so important a clause in an absurd connexion when the thing could have been done correctly by simply filling up another printed form. I therefore rule against the clause in Francis Murtagh's and Bryan Reilly's leases. I do this upon mere presumption at law, and therefore I do not send an issue, as no further evidence could be given in favour of the clause, though there is some slight evidence against it on the face of the deeds and the opinion of the experts. In reference to Patrick Murtagh's lease, there are two points to be considered: first, whether any evidence against it can be given arising from the probable tampering which has been committed on the other documents. These documents are not admissible except upon prima facie proof of a common fraud, and there is no such proof except by production of the document. I therefore think they are inadmissible. Secondly, whether it is not sufficiently obvious on the face of the deed that the words were written after the surface of the paper had become uneven and full of creases. I will not rule on the case on this point alone as it is rather matter for a jury, and I will therefore direct an issue to try the question if the petitioners or owner desire it. The other documents may be sent to the Court in which the issue is, so that they may be given in evidence if the judge should decide that they are admissible. Flanagan Q.C. (with Richardson) for appellants.The order made by Judge Hargreave on Feb. 28, 1866, ought to be reversed. By that order the learned judge took upon himself to decide a question which ought to have been sent to a jury to decide upon the evidence which should be left before them. And further, the comparison and inspection of other leases contemporaneous with the said lease of petitioners · was not admissible as evidence, and should not have been read or referred to by counsel as evidence, or been admitted by that learned judge in reference to petitioner's lease; and also the order was erroneous in allowing the assignment produced and read upon the original objection of Bernard Reilly and John Reilly, tenants to different lands, and to which assignment petitioners were neither privy or parties, and which was not therefore evidence. Now, as to the presumption of law, no such presumption arises as that alleged by Judge Hargreave. Where a bill of exchange produced on a trial appears to have been altered, the jury cannot on inspection of such a bill without other proof decide whether it was altered at the time of making or at a subsequent period.-Knight v. Clements (8 Ad. & Ell. 215). There a bill of exchange was drawn upon a two months' stamp, and had begun with three months after date,' but the word three' had been defaced (as if blotted while the ink was wet), and 'two' months upon it and 'two' written again underneath. And the plaintiff who put in the bill at Nisi Prius offered no evidence to account for these alterations. Held that the document by itself was no evidence to go to the jury of alterations." In fact, when an alteration is made, in no case does such a presumption arise as that put by Judge Hargreave. So early as 13 Car. II. it was laid down in Trowel v. Castle (Keble's Reports, 22) that "an interlineation (with out anything appearing against it) will be presumed to be at the time of the making of the deed and not after." And so on in Co. Lit. 225-6-"Of ancient time if the deed appeared to be rased or interlined in places material, the judge adjudged upon their view to be void. But of later times the judge has left that to the jurors to try whether the rasing or interlining were before the delivery." And in a note upon the passage in Hargreave and Butler's edition of Coke upon Littleton, it is laid down ""Tis to be presumed that an interlining, if the contrary was not proved, was at the time of the making of the deed.-Tatum v. Catamore (16 Ad. & El. N. s. 745). So, if the case had been tried by a jury they could not have been directed to raise the presumption which Judge Hargreave without the aid of a jury has raised. Butt, Q.C., with R. H. Mills, were heard in support of Judge Hargreave's decision. There is a legal presumption arising from the position in the lease in which the clause of renewal occurs, that the same must have been interpolated at some time subsequent to the execution of said lease; and from the facts and evidence in the case, that the interpolation of the clause of renewal in petitioner's lease must have been inserted subsequent to the execution thereof.-Buller's N. P. 255; Lord Trimleston y. Kemmis (9 Cl. & Fin. 775). ́ A number of cases were referred to which are collected in Broom's Legal Maxims, 4th ed. 155, note e. THE LORD CHANCELLOR.-I am of opinion that the order made by the Court below in this case cannot be sustained. I interfere with great reluctance with the decision of so eminent a judge as the late Judge Hargreave. His decisions always evinced great learning and patient investigation. His loss is a matter of public regret; and I confess that I with reluctance t pronounce a judgment which differs from his. The whole question in the present case is whether this particular interlineation was made at or before the time of the execution of the lease or subsequently; and we are not here concerned with its interpretation. Are there then grounds for supporting the order made in the Landed Estates Court? It is stated in the judgment below that admitting the general law to be that an interlineation is to be presumed to have been made before the execution of the instrument in which it occurs, still that presumption is in the present case to fall to the ground, because the interlineation in question was not in that careful and grammatical form which the Court would consider desirable. That is a dangerous doctrine. We know that error often exists in deeds prepared in the most careful manner. The custom now is to notice at the foot of a deed any interlineation which happens to occur in the body of the instrument; but that custom is by no means universal, and certainly was not so fifty-four years ago. What is the evidence in the present case which should have the effect of taking it out of the operation of the rule of law? No counterpart is produced, nor anyone who ever saw a counterpart ci his lease. No rental is produced, nor any other document, and we are asked to deal with this case upon the mere inspection of the lease itself. Now the evidence as to the interlineation being in a different handwriting from that in the body of the lease is founded on mere matter of opinion; and as to the colour of the ink in which the interlineations are written, although I don't mean to set up my own personal powers of vision in opposition to those of the gentlemen examined in this case, still I confess I do not entirely concur in their evidence upon that point. It does appear to us that the question here is one entirely for a jury; it is a question of fact. I do not concur in the view of the late Judge Hargreave that there is such a presumption of law. The current of modern decisions from Lord Coke to the present time are directly the other way; and after all that has been said in the case it comes round to this narrow question, "Is there such a presumption of law?" As I just said, the current of decisions is the other way, and I know of no single decision to the contrary. We must then reverse the order made by Judge Hargreave. THE LORD JUSTICE OF APPEAL entirely concurred with the view the Lord Chancellor had taken of the case. No doubt, the presumption of law was, that the clause in question existed at the time of the execution of the deed, and in order to displace this presumption, evidence should be laid before a jury to that effect. Reverse the order. Solicitor for the appellants-C. Reynolds, 48 Mountjoystreet, Dublin. Solicitor for the respondent-John Swanzy, 5 Bachelor'swalk. Court of Queen's Bench. Reported by William Woodlock, Esq. Barrister-at-Law. COSTELLO v. MOORE.-May 24; June 4, 22. Garnishee order-Equitable assignment. (save by the giving of the said order as aforesaid), or by the said commissioners, or otherwise, to deponent on foot of the said sum of £243 13s., the same and every part thereof was still due to this deponent. Notice of the order was at once given to the Commissioners. The case stood over for the purpose of obtaining information as to what was the property of Moore in the hands of the commissioners, and from an affidavit of Mr. John Farrell, their secretary, it appeared that when Moore became contractor, he got from them a dredge-boat, with certain mooring chains attached to it; that while it was in his possession he added other mooring chains, his own property, and that on the 19th of March the commissioners took possession of the dredge-boat with his mooring chains, and an anvil and some other small matters which were in it, the property of Moore, and that the value of these chains, and other articles of Moore's separated from those which were the property of the commissioners, was £91 16s. 6d. There were several other garnishee orders at the suit of the creditors, but all were subsequent to the order of the 4th April. Curtis, for Power, referred to the cases cited in the note to Ryall v. Rose (2 Wh. & Tud. 615). James Greer contra, for the execution creditor, argued that the order of the 4th April, 1866, could not operate as an equitable assignment as it did not ear-mark any specific fund.-Rodick v. Gandell (4 De G. M'N. & G. 763); Watson v. The Duke of Wellington (1 R. & M. 602); Burn v. Carvalho (4 M. & Cr. 690). Curtis, in reply, referred to Cooke v. Black (4 A. being indebted to B., and C. being indebted to A., A. gave B. an order on C., directing him to pay to B. what he owed to him, A. At the time when the order was given, C. had in his hands goods belong. ing to A. of considerable value. Notice of the order was at once given to C. Held, that the order operated as an equitable assignment of the value of the goods to B., and took priority over garnishee orders subsequently obtained by other creditors of A. THIS was a motion to show cause against a garnishee order obtained by the plaintiff in the cause on the 8th May, attaching a sum of £91 16s. 6d. due by the Commissioners for Improving the Port and Harbour of Waterford to the defendant, Patrick Moore. The present application was made by a Mr. Power, who claimed priority over the plaintiff as an equitable assignee of Moore, the defendant, who had been a con· tractor in the service of the Waterford Harbour Commissioners, and it was grounded upon an affidavit of Mr. Power, stating that Patrick Moore, the defendant in this cause, being indebted to the deponent for work and labour, and on bills of exchange in the sum of £243 13s. sterling, the deponent, on or about the 6th day of March, 1866, caused a writ of summons and plaint entered and appropriated to the Court of Exchequer in Ireland for the recovery of £99 158. 10d. portion of the said sum, to be issued against the said Patrick Moore, and which said writ of summons and plaint was, on or about the 7th day of March, June 22.-LEFROY, C. J.-In this case the question 1866, served on the said Patrick Moore, who, on or was whether the order given on the commissioners about the 4th day of April, 1866, for the purpose of amounted to an equitable assignment of the demand arranging the said action, and in part payment of the which the party had against the commissioners. We said debt gave to deponent an order, which ran thus:- are of opinion that it did amount to an equitable as"At the request of W. Power, I hereby give the fol-signment, and therefore that the party is entitled to lowing orders on the Commissioners of Waterford the benefit of it. Harbour Works for the following amounts, as stated at foot." It then stated the items, amounting to £235 3s. 10d., and continued-"To John Farrell, Esq., Secretary, Waterford Harbour Commissioners Sir,-Please pay the above amounts, and charge to my account, and oblige yours truly-P. Moore;" that the sum of £91 163. 6d. sought to be charged by the garnishee order in this cause having been due by the said commissioners to the said Patrick Moore at the time of the giving of the said order as aforesaid, the said order operated and was an equitable assignment of the said last-mentioned debt by the said Patrick Moore to deponent, and deponent submitted that the said commissioners having admitted said sum to be in their hands, they should hold same for the use and bencfit, and as the proper monies of this deponent; that since the giving of the said order by the said Patrick Moore to deponent as aforesaid (and in consequence thereof) deponent had not taken any step in the said action so commenced by deponent against said Patrick Moore as aforesaid, and that no payment having been made either by the said Patrick Moore O'BRIEN, J.-This case stood over to get some specific information on a matter of some importancenamely, whether at the time the order was given, the Harbour Commissioners had in their possession property on which the order could attach. Under the terms of their contract Mr. Moore did not perform it, but there was a provision in it enabling the seizure by the commissioners of all their plant. Along with this of their own, they took some plant that belonged to Mr. Moore, and the case stood over to see if that was done at the date of the order, and when it was delivered. Now, there is an affidavit of Mr. Farrell which sets the matter beyond all doubt. It states that the commissioners took possession of their dredge vessel, &c. on the 19th March. Well, that took place on the 19th March. Then the question comes that even in equity it does not avail until notice is given to the debtor. Here it appears that the order was delivered to the commissioners in the first half of April, and on one of the first days of that month. Now, the earliest of these attaching orders was after that period, and if this was an equitable assignment, we have a fund in the hands of the Harbour Commissioners, and further we have the assignment completed by notice to the commissioners, and therefore the question is, is that, on the face of it, an equitable as sigument? Now, I think the result of the authorities is, that where an instrument purports to be a direction to one party to pay another out of the funds he owes the party giving the direction, it is a good equitable assignment. Does that apply to the case before us? We are at liberty to construe the agreement by reference to the state of facts existing between the parties at the time. Here we have the Harbour Commissioners having these goods; we have this fund in their hands, and the order. Now, construing that with reference to the facts as they stood at that time, can it be said that it is not an order to pay him out of the money in their hands? The rule, therefore, will be to discharge that part of the garnishee order. It is a very proper question to bring forward, and therefore, as against the judgment creditors, I do not think there should be any costs. FITZGERALD, J., concurred. LENNON v. BINKS.—May 26. New trial-Misdirection-Deed-Property-Interpleader. A bill of sale recited an agreement to sell certain goods; in the operative part it omitted to name the articles, but they were set out in a schedule. There was a delivery of the goods. Upon an interpleader issue between the claimant under the deed, and an execution creditor of the grantor, the judge withdrew the question as to the property in the goods from the jury, and directed a verdict for the creditor. Held, that this was a misdirection, and that there should be a new trial. Hemphill, Q.C. for the defendant, shewed cause against a conditional order for a new trial obtained by the plaintiff on the ground of misdirection. The case was an interpleader issue, the claimant being plaintiff, and the execution creditor defendant. The plaintiff claimed under a bill of sale dated the 3rd of February, 1866. The deed recited an agreement on the part of the debtor to sell certain goods to the plaintiff. The operative part of the deed omitted the articles, but they were named in a schedule. There had been a delivery of them. The judge at the trial withdrew the question as to the property in the goods from the jury, and directed a verdict for the defendant in the issue, the creditor in the execution. putes arising under it to the arbitration of parties residing in England. Upon an action being brought upon the contract in this country, a motion to refer the matter to the arbitrators named was refused, there being no provision in the stipulation for compelling the attendance of witnesses belonging to this country before the arbitrators, and the question likely to arise being one as to facts existing in this country. Dowse, Q. C. on behalf of the defendant, moved to have the matters in dispute referred to arbitration pursuant to the terms of the contract between the parties. The action, which was for not delivering a cargo of corn in this country, was brought on a corn-contract, which contained a provision that if any dispute concerning it should arise, it should be referred to the arbitration of two gentlemen named, both of whom of the Common Law Procedure Act of 1856; Hatresided in England. Counsel referred to section 14 tersley v. Hatton (3 F. & F. 116); Mason v. Hatton (6 C. B. N. 8. 626); Blythe v. Lafontaine (1 Ell. & Ell. 491); Roper v. Lendon (5 Jur. N. S. 491). [Fitzgerald, J.-There is nothing in the provision in this contract to compel the attendance of witnesses before these English arbitrators, and that being so, and the question likely to arise being as to the condition of the corn when it arrived here, we ought not to grant this motion.] Palles, Q.C., contra, referred to O'Flanagan v. O'Geoghegan (16 C. B. N. s. 636). Motion refused with costs. THE QUEEN V. NOLAN.-June 22. Criminal law-Bail-Harbouring-Treason-felony. Application to admit to bail a prisoner charged with harbouring a party connected with the Fenian conspiracy, refused, though it was sworn that the prisoner's health was suffering from confinement, that his affairs were going to ruin, and that he had no sympathy with the conspiracy, and though he offered bail to the amount of £1,000 (O'Brien, J. dissenting). THIS was a motion to admit a prisoner to bail. Nolan had been arrested on a charge of harbouring one Morris, who had subsequently been found guilty of treason-felony as being connected with the Fenian conspiracy as head-centre for Carlow. From the affidaTHE COURT held the question too plain for argu- vits it appeared that Nolan had been arrested in March ment. The articles had passed by delivery. The of the present year, that he was over seventy years deed recited an agreement to sell them. The ques-ot age, that his health was failing in consequence of tion should have been left to the jury, and therefore there must be a Rule absolute for a new trial. MACKEN V. ALEXANDER.-June 11. Contract-Provision for arbitration-Stat. 19 & 20 Vict. c. 13, s. 14. his imprisonment, and that the affairs of his farm were going to ruin. A memorial for his discharge, signed by the clergymen and gentry of his neighbourhood, had been forwarded to the Lord Lieutenant. No answer had been received to that memorial till three days ago. The prisoner's affidavit denied all connec tion with the Fenian movement. Byrne in support of the application. We have made a case for having our application granted.A contract contained a stipulation for referring dis- Baronet's case (5 Dearsley, C. C. R. 51); Aylesbury's |