cated with the learned Judge, and although he does not recollect any such expression as to the validity of the count, it is clear to us that he was never requested to leave any question of fact to the jury, nor was he requested to determine in point of law what was the effect of this count as regards the facts proved. In this state of the case we might discharge the rule, but we think that instead of discharging the rule, the plaintiff may be let in to try this action again if he thinks it worth his while, but it must be on payment of the costs of the first trial and of this rule within ten days. If these costs are paid within that time the rule will be absolute for a new trial; otherwise. the rule must be discharged.

Rule accordingly.

LUCAS

v.

TARLETON.

GURNEY v. EVANS.

(3 H. & N. 122-125; S. C. 27 L. J. Ex. 166; 30 L. T. O. S. 308.) Goods having been ordered by E. were invoiced to "E. & Son," and a bill was drawn for the price on "E. & Son." The bill was accepted in the handwriting of the son, in the name of E. & Son. The son was not a partner and it was alleged that he accepted the bill only as his father's amanuensis: Held, that if the son had so conducted himself that the drawer of the bill might reasonably have believed and did believe that he was a partner, he was liable on the bill. THE declaration stated, that the plaintiff on, &c., sued out of her Majesty's Court of Exchequer of Pleas, a writ of summons against John Evans and John Evans the younger, in the special form contained in Schedule A. to the Summary Procedure on Bills of Exchange Act, 1855, and indorsed as follows (setting) out the indorsement). And the plaintiff suggests and gives the Court here to understand and be informed that the said John Evans has not appeared to the said writ, and that judgment has been signed and obtained against him herein. And the plaintiff, by &c., his attorney, declares against John Evans the younger, that the plaintiff on, &c., by his bill of exchange now overdue, directed to the defendants, required the defendants to pay to the order of the plaintiff 941., six months after date, and the defendants accepted the said bill, but have not paid the same.

Plea by the defendant John Evans the younger, that he did not accept the said bill. Whereupon issue was joined.

At the trial, before Coleridge, J., at the Bristol Summer Assizes, 1857, it was proved that the plaintiff, a timber merchant, carrying on business in London, being at Aberystwith in October, 1856, applied to Evans the father, who was a shipbuilder, for an order for some oak timber. The father would not give an order without consulting his son, but the father, the

1858. Feb. 6.

[ 122 ]

son, and the plaintiff having subsequently met, on the 13th of
October the father wrote an order for the timber. The timber
was invoiced to J. Evans & Son, and the bill on which the
action was brought was drawn upon J. Evans & Son, and
was accepted in the handwriting of the son. On the 25th of
November, the plaintiff received a letter containing these expres-
sions: "The planks have not yet arrived; but the little I
saw of them at *Newport, on board the boat, I think they will do.
I enclose my acceptance, &c.," signed "J. EVANS." This letter.
was in the handwriting of the son. The plaintiff acknowledged
the acceptance, addressing his letter to J. Evans. He then
wrote for further orders, addressing his letter to J. Evans &
Son, and eventually sent a further supply of timber, to the
amount of 2211., for which he drew a bill on J. Evans & Son..
Some of this timber having been lost on the journey, the father
sent two acceptances of his own for 100l. and 105l., but did
not returned the draft on J. Evans & Son for 2211. The plain-
tiff then wrote, alleging that he had shipped the full quantity
of timber, and saying, "I thought your firm was J. Evans
& Son: is it not so?" The son, writing in the name of the
father, answered the letter; but the answer did not explain.
that the son was not a partner. The father afterwards com-
pounded with his creditors. The plaintiff said that he believed
that the son was a partner, and that he was never undeceived
until the meeting of creditors. On behalf of the defendant
J. Evans the younger, it was proved that there was no part-
nership between him and his father: that the timber was in
fact ordered by and for J. Evans the father, and that the son
had signed the bills, and written the letters at the request of his
father, who, in consequence of an accident, was unable to
write. To explain the fact that the first bill on J. Evans & Son
was not returned, it was said that the stamp would have been
spoiled.

The plaintiff's counsel contended, that J. Evans the younger was estopped from denying his acceptance. The learned Judge told the jury that he did not think that the plaintiff intended to draw upon the son, except upon the supposition that he was a partner; and that if the plaintiff intended to draw upon the partnership only, they might find for the defendant. The jury thereupon found a verdict for the defendant.

Prideaux, in last Michaelmas Term, obtained a rule for a new trial, on the ground that the Judge misdirected the jury in telling them that if they thought that the plaintiff only drew on the son on the supposition that he was a partner, and that

he intended only to draw on the party whose business it was, and that the son, by mistake, accepted for the father in the name of Evans & Son, they were to find for the defendant: also on the ground that the son was estopped from denying his acceptance, and that the verdict was against evidence, the evidence clearly showing that the son had held himself out as a partner or co-contractor: against which,

Karslake now showed cause.

BRAMWELL, B.:

I am of opinion that this rule must be absolute. It is clear that there was evidence that the son so conducted himself that the plaintiff might have reasonably believed that he was one of the purchasers of the timber, and that the plaintiff did so believe. If so, the son would have been liable for the price of the timber, and on the same principle he is liable on this bill. What was left to the jury was, not what was the operation of the conduct of the defendant upon the plaintiff's mind, but what was in the mind of the defendant.

WATSON, B.:

The proper question was not left to the jury in this case; they should have been asked whether the conduct or statements of the defendant J. Evans the younger led the plaintiff to believe that the defendant and his father were in partnership, and whether the plaintiff acted on that belief. The plaintiff said that he did believe it. The statement of the defendant was, that the invoice was sent to Evans & Son. The defendant received it: he never returned it, or said it was a mistake. A bill was then drawn on Evans & Son. The father being *present, the defendant, his son, accepted it in that form; the father saying that otherwise the stamp would have been spoiled. There was a second sale of timber, invoiced in like manner, to J. Evans & Son, in respect of which a bill was drawn on J. Evans & Son, and a correspondence, and still no denial by the son that he was a partner. These facts furnished evidence that the defendants had held themselves out as partners, which ought to have been submitted to the jury.

CHANNELL, B:

I concur in thinking that this rule must be absolute for a new trial. The plaintiff had a right to have the question left to the jury, whether the defendant held himself out as a partner.

Rule absolute.

GURNEY

v.

EVANS.

[*125]

R.R.-VOL. CXVII.

40

1858. Feb. 9, 10.

[125]

[ *126 ]

ATTORNEY-GENERAL v. MIDDLETON.

(3 H. & N. 125-143; S. C. 27 L. J. Ex. 229; 6 W. R. 300; 30 L. T. O. S. 323.) A testator devised his real estate to D. for life, and after D.'S decease to his eldest and other sons in tail male and in default of such issue to H. for life, and after his decease to the eldest son of H. for life, with remainders over. The testator died in June, 1835, leaving D. and H., and the defendant (the eldest son of II.), him surviving. H. died in November, 1849, leaving the defendant him surviving. On the 19th of May, 1853, "The Succession Duty Act, 1853," came into operation. In November, 1856, D. died, whereupon the defendant succeeded to the estate under the testator's will: Held, that the defendant was chargeable with duty under the 2nd section of the Succession Duty Act, 1853.

INFORMATION by the Attorney-General as follows:

1. The object of this information is to obtain payment of the duty, which has become payable to her Majesty in respect of the succession of the defendant, who is the eighth Baron Middleton, to certain real property, formerly belonging to Henry, sixth Baron Middleton, deceased, hereinafter referred to as "the testator."

2. The testator was, at the time of making his will and of his death, absolutely beneficially seised and entitled, for an estate of inheritance in fee simple, of and to certain real property, such as in the Succession Duty Act, 1853, is mentioned, being the manors, hereditaments and real estate *particularly described in his will, and thereby devised as hereinafter stated, or otherwise had full power to appoint and dispose of the same by will; and, on the 18th of June, 1834, the testator made his last will and testament in writing, of that date, which was duly executed and attested as was then by law required for the devise of freehold estates; and thereby, amongst other things (to which it is unnecessary for the purposes of this suit more fully to refer), he gave his wife Jane, Lady Middleton, a life estate in his mansion-house at Langford in the county of Nottingham, and in 100 acres of land adjoining thereto, and devised the same at her decease to the uses to which he had thereinafter devised the residue of his Langford estate; and the rest of the said will (so far as is necessary for the purposes of this suit to state the same) is in the following terms, that is to say: "I give and devise all my freehold manors, mansionhouses, messuages or tenements, advowsons, farms, lands, tithes, collieries, hereditamens and real estate, situate, standing, lying, arising, or being at Langford aforesaid, and at Wollaton Trowell and Lenton, in the said county of Nottingham, and at Stapleford, and at Carlton in Moorland aforesaid, and at Middleton, in the said county of Warwick, and their rights, members and appurtenances, and all other the freehold hereditaments and real

estate, if any, situate and being in the said counties of Nottingham, Lincoln and Warwick, or any of them, of or to which I, or any person or persons in trust for me, am, is, or are seised, or entitled, for an estate of inheritance in possession, reversion, remainder or expectancy, or which I have any power to appoint or dispose of by this my will, with their and every of their rights, members and appurtenances, &c., (then followed certain exceptions, including the mansion-house, lands and hereditaments at Langford), To the use of my cousin the said Digby Willoughby and his assigns during *his life, without impeachment of waste; and after his decease, to the use of the eldest and every subsequently born son of the said Digby Willoughby who shall be born in my lifetime, and his assigns, severally and successively, according to his respective seniority, during his life, without impeachment of waste; and after his respective decease, to the use of the respective first, and every other son of such eldest and subsequently born sons as last aforesaid, severally and successively, according to his respective seniority, in tail male; but so that the respective son, or sons of the elder of such eldest and subsequently born sons (if more than one), and his and their issue male, shall always take before, and be preferred to the respective son or sons of the younger of such subsequently born sons, and his, and their issue male; and in default of such issue, to the use of every son of the said Digby Willoughby who shall be born after my decease, severally and successively, according to his respective seniority in tail male. And in default of such issue, to the use of Henry Willoughby and his assigns during his life, without impeachment of waste; and after his decease, to the use of the eldest son of the said Henry Willoughby and his assigns, during his life, without impeachment of waste:" with divers remainders over, as by the said will or an office copy of or extract from the same or the probate thereof when produced will appear.

3. The testator died on the 6th of June, 1835, without having altered, or revoked the disposition of his said real property made by his will as before stated, and he left the said Digby Willoughby and Henry Willoughby, in his said will named, who were respectively his first cousins, and also the above-nameddefendant, who was the eldest son of the said Henry Willoughby, him surviving. And upon the testator's death, his cousin Digby Willoughby succeeded to the title, and became the seventh Baron Middleton, and he also succeeded to the said real property as tenant for life thereof in possession, under the disposition thereof made by the testator's will as before stated.