1811. NIX v. CUTTING. obtained a rule nisi for a new trial, on the authority of the case of Bland v. Ansley, 2 N. R. 331., insisting on the incompetency of the witness, inasmuch as he was interested in warranting his title to sell to the defendant. Blosset, Serjt. now shewed cause, and distinguished this from the case of Bland v. Ansley, where he said the witness was most [ 19 ] immediately interested; for the effect of a verdict in that case in favour of the defendant, for whom he was called as a witness, would have been, to satisfy an execution then issued against his goods, and to deliver him therefore from all further liability in respect of that execution: but this was only the ordinary case of proving one person devested of property by the evidence of another, to whom he has parted with it. Here the witness, by virtue of the special agreement made between him and the plaintiff, stood in the situation of a purchaser from him of the poney, and under that agreement was entitled to hold the property: but in case an action should be brought against him to recover it back, this verdict would be no evidence for him in such action, nor could it avail him in any way. [ 20 ] Sellon, Serjt. contrà. It is not necessary, in order to disqualify a person from being a witness in a cause, to shew that the verdict obtained in that cause may be used either as evidence for or against him. That indeed is one, but not the only groundof disqualification. And the question is, whether this case does not also afford another. Here the plaintiff established a prima facie case, which must have prevailed, unless the witness, by making himself the principal, and the defendant only the agent, can shift the responsibility from the defendant upon himself. In order to do this, he was first permitted to prove a debt due from the plaintiff to himself, which he was clearly incompetent to do, and then that the property became his, and was not the plaintiff's, which he was directly interested to prove, after having made a sale of and thereby warranted it to be his property to the defendant, to whom he would be liable over in case it turned out to be the plaintiff's. In this view of the case, therefore, the cause was in reality the cause of the witness. MANSFIELD, C. J. The question is, whether the witness, who bought a horse of the plaintiff, is competent to prove that fact. I cannot possibly see any objection to his proving it, for as between the witness and the plaintiff, or the witness and the defendant, the verdict which is obtained upon his testimony in this cause, will be of no avail to him. LAWRENCE, LAWRENCE, J. The case of Bland v. Ansley is clearly discernible from this: for in that ease there was an execution pending against the witness, from which he would have been relieved by a verdict given conformably to his testimony. 1811. NIX v. CUTTING. Per Curiam, Rule discharged. DOE, on the Demise of DYKE and Others, v. WHITTINGHAM. * June 20. A deed which as a covenant may take effect to stand scised, the use is to arise after the covenantor, does not affect thereby to dispose of the freehold in the is good, though and though he mean time. after the cove nantor's death, the use result time. A deed which THIS HIS was an ejectment brought to recover a messuage, garden, and two acres of land in the parish of Gnossall. Upon the trial before Lawrence, J. at the last spring assizes for the county of Stafford, it appeared that Edward Bate, being seised of the premises, on the 22d of March 1787, executed on unstamped paper an instrument in the form of a deed-poll, entitled at the top, "A deed of gift," and expressing that he, " Edward Bate, in consideration of the love, good will, and affection which he had and did bear towards his loving daughter Margaret, the wife of John Whittingham, the defendant, had given and granted, and by those presents did freely give and grant unto the said Margaret Whittingham, her heirs, executors, or administrators, (after the deceases of himself and his then wife,) the premises therein mentioned, as a gratuity for money which his said daughter had lent him, to hold the premises, (from and after the ing in the mean decease of him and his then wife,) absolutely, without any manner of condition, otherwise than what was above mentioned." It was signed, sealed, delivered, and attested. On the 5th of June 1793, he made his will, duly executed and attested to pass real estates, and after having thereby devised all his real and personal estate to his wife for her life, and having devised after her decease unto his daughter Margaret the premises comprized in the above-mentioned deed of gift, for the said Margaret Whittingham to have, hold, occupy, possess, and enjoy all the said premises, with every of their appurtenances, he willed that all the rest of his worldly estate should be equally shared among the rest of his children. The testator died in the year 1794, and the defendant, John Whittingham, and Margaret his wife, entered and were seised: in consequence of the decease of Margaret the wife in April 1799, this ejectment was brought by the other children and a grandchild of the testator, claiming the reversion in fee under the residuary devise. At the trial is produced, stamped with the stamp re. quired by 48 G. missible 3. c. 149., is admissible in evi dence, although it has not af fixed the deed stamp, of less value, required by the statutes time when such deed was exe in force at the cuted. [ 21 ] the 1811. DOE, Lessee of V. WHITTING HAM. [ 22 ] [ 23 ] the deed of gift appeared stamped with the 30s. deed stamp which was in use for deeds in the year 1811; and it was alleged that the stamp, which was in use for similar instruments in the year 1787, was obsolete and destroyed, and could not now be obtained at the stamp office. Two objections were made at the trial: first, that this instrument could not take effect, because it purported to create a freehold estate in futuro; secondly, that it could not be received in evidence, unless stamped with the particular deed stamp which was by law required at the time of the execution of the deed. Lawrence, J., however, on both points thought otherwise, and the jury, under his direction, found a verdict for the defendant. Shepherd, Serjt. in Easter term obtained a rule nisi to set aside the verdict, and enter a verdict for the plaintiff. Best, Serjt., who was in this term to have shewn cause against the rule, was stopped by the Court. Shepherd contended that this case was distinguishable from Doe ex dem. Wilkinson v. Tranmer, 2 Wils. 75. S. C. more fully Willes, 182.; that in the case cited, the estate of freehold remained in the re-lessor during his life, and upon his decease descended to his heir, who would be seised to the use of the usee. But in this case an intermediate estate of freehold was intended to intervene, namely, to the grantor's wife, for it is as if he had said, I intend that the estate shall be by some means conveyed, after my own decease, to my wife for her life; and after her decease, I covenant to stand seised of it to the use of my daughter, the defendant's wife, and her heirs; but there are no apt words by which if he had died, living his wife, the estate which he contemplates his intention to limit to his wife, could have taken effect; therefore the heir would not stand seised to her use, and then the ulterior estate to his daughter must fall to the ground, for want of any present estate of freehold to support it. HEATH, J. Here, after the death of the covenantor, there would be a resulting use. The mischief against which the law intended to provide was, that there might be no tenant to the precipe, but that would not happen in the present case. LAWRENCE, J. The case in Willes decides, that a covenant to stand seised, where the use is to arise at a future time is good: here the use will arise after the death of the wife. The objection upon the stamp was abandoned. Rule discharged. DOE, 1811. DOE, on Demise of BARBER, v. Lawrence. THIS Shepherd, Serjt. in Easter term obtained a rule nisi to set aside the verdict and have a new trial upon the ground that a right of entry could not be reserved to a stranger to the estate, and the lease shewed the legal estate to be in Reynolds. Co. Litt. 214. Best, Serjt., in this term, contended, against this rule, that the covenant of the lessee that the cestui que trust might reenter, estopped him from taking this objection, and next, that the first mortgage being paid off, the equitable estate of Barber, and legal estate of Reynolds, were at an end. But the Court, Asking for the proof of the re-assignment, held that the case was too clear for argument, and made the Rule absolute. VOL. IV. C JACKSON, 1811. June 20. J. F. advised the plaintiffs that he had re 1969 dollars, consigned to Laycock. Laycock received 4700 dollars, and pledged the bill of lading to the defendant, who received the price of the dollars at the JACKSON and Another v. ANDERSON and Others. ROVER for 3000 pieces of foreign coin called Spanish dollars. The plaintiffs were the surviving partners of Sadmitted to them ler, Jackson, and Co. merchants of London; the defendants were bankers there. In 1808, Sadler, Jackson, and Co. consigned to Mr. J. Fielding, resident at Buenos Ayres, an assortment of linen goods for sale, which he accordingly sold, and rendered them an account of the proceeds calculated in dollars, and annexed to the following letter: "Buenos Ayres, August 28, 1809. Messrs. Sadler, Jackson, and Co. Gentlemen, Annexed I hand you an account of sales of four trunks, net proceeds 1969 Spanish dollars, which amount I shall ship per the Cheerly gun brig, Lieutenant Fullarton, who will sail direct for England in 10 or 14 days; this being a direct and safe conveyance, I deemed it more your interest, than sending them to Rio, more especially as the exchange has considerably fallen there. Signed, * J. Fielding." Some time afterwards the plaintiffs received the following letter, which was brought by the ship Cheerly: "Buenos Ayres, 12th Sept. 1809. Gentlemen, I have by this conveyance sent to my friends Messrs. Laycock and Co. IF bank of England, where they were deposited for safe custody, on a sale of them to the bank. Held, 1. That the letter was a sufficient ap- mon of the dollars. 3. That specific dollars had been sever although no ed for the plain tiff, yet, as the defendant had converted all the plaintiff's and all his own, a bill of lading for a barrel of dollars, marked Р 100, in which are included 1969 for you and on your account, which sum will be rendered to you by said gentlemen. Signed J. Fielding.” Addressed to Messrs. Sadler, Jackson, and Co. per Cheerly, Captain Fullarton. Upon the receipt of this letter, the plaintiffs referred to Laycock and Co., who after repeated applications made to them, returned for answer that they had transferred the bill of lading to a friend. In consequence of this answer the trover would lie plaintiffs made inquiry at the Bank of England, and there disfor plaintiff's share. 4. That covered that the barrel of dollars upon its arrival had been dealthough the posited at the Bank, and that the bill of lading, indorsed severally by J. Fielding, Laycock, and Co., and the defendants, had been transmitted to the bullion office by the defendants, of whom the Bank had purchased the dollars, and paid them the sum of 10987. 13s. 9d., being the value of 4718 dollars contained in the barrel: which sum the defendants carried to the credit of Laycock and Co., with whom they had an account as bankers. Upon this the plaintiffs demanded the 1969 dollars of the defendants, who refused to deliver them up. This cause was tried before Mansfield, dollars remain ed in the same unaltered custody, yet the delivery, by the defendant, of the bill of lading, which was the symbol of them, and the receipt of the value, was a conversion. [ *25 ] |