Callow v. Jenkinson.

were not stones on the surface, but stones dug out of a quarry. The act is equivalent to a deed of conveyance to the allottees of the several allotments, reserving to the lord the mines and minerals. Stone dug out of a quarry is a mineral, and mines are quarries or places where any thing is dug. All stones not on the surface, but got from quarries, are minerals, and the property of the lord.

Judgment for the plaintiff.

CALLOW v. JENKINSON.1

Trinity Term, June 4, 1851.

Pleading - Estoppel.

Case The declaration stated that the plaintiff and the defendant were attorneys; that the defendant falsely represented to the plaintiff that he, the defendant, was authorized by one Fennell to bring an action, in Fennell's name, against one C. and B., and that he was authorized by Fennell to retain the plaintiff to bring the action; that the plaintiff brought the action; that the defendant was not so authorized, and that the plaintiff was compelled to discontinue the said action and to pay costs. Other counts charged the defendant with similar acts with reference to other parties.

Plea-That the plaintiff was not employed, and did not act as such attorney.

Replication That the plaintiff ought not to be admitted to plead the said plea, because a judge's order was made for taxing the plaintiff's bill of fees in the action, in the declaration mentioned, delivered to the defendant and one Oldershaw, and one A. Jenkinson, and for the master to certify what was due; that the defendant and A. Jenkinson should be at liberty to dispute their retainer; that the master allowed 196l. 13s. 5d.; that the plaintiff sued the defendant, Oldershaw, and A. Jenkinson, for determining the question of the retainer, and recovering the sum of 1967. 13s. 5d.; that the question of the retainer being referred to the master, he certified that such retainer by the defendant, Oldershaw, and A. Jenkinson, was proved, whereupon the plaintiff signed judgment against the three parties for 2471. 3s. 10d.; and that the plaintiff's bill of fees was for fees due to him for work done by him in bringing the actions in the declaration mentioned:

Held, that the replication did not state a case of estoppel, and was bad.

CASE. The declaration stated that the plaintiff and the defendant were attorneys; that the defendant falsely and fraudulently represented to the plaintiff that he, the defendant, was authorized by one Fennell to bring an action in Fennell's name against one Chapman and Burke for the recovery of 321., and that he was authorized by Fennell to retain the plaintiff as attorney to bring the action in Fennell's name; and that the plaintiff did bring such action. Averment, that the defendant was not authorized to retain the plaintiff to bring the said action; that the plaintiff was compelled to discontinue the action and to pay costs. [There were four other counts, alleging similar false representations with respect to other parties.]

Plea That the plaintiff was not employed, nor did he act, as such attorney in the said action in the declaration mentioned modo et forma. Replication, that the plaintiff ought not to be admitted to plead the said plea, because the plaintiff says that a judge's order was made

120 Law J. Rep. (N. s.) Exch. 321.

Callow v. Jenkinson.

whereby the plaintiff's bill of fees, &c., in the several actions in the declaration mentioned, delivered to the defendant, and to one Oldershaw, and to one Alfred Jenkinson, should be referred to taxation, and that the master should certify what was due, and that the defendant and Alfred Jenkinson should be at liberty to dispute their retainer; that the master allowed 196l. 13s. 5d.; that the plaintiff impleaded the defendant, Oldershaw, and A. Jenkinson in an action. for the purpose of determining the question of retainer, and recovering the sum of 1967. 13s. 5d. The replication then set out the proceedings in the action; and that, at the trial, it was agreed that the question of retainer should be referred to the master; that the master certified that the retainer by the defendant and Oldershaw and A. Jenkinson had been proved to the amount of 125l. 15s. 11d.; and that the plaintiff signed judgment against those three parties for 2471.3s. 10d. Averment, that the plaintiff's bill of fees, &c., was a bill of fees, &c., due to the plaintiff, as an attorney, for work, &c., done by him in bringing the said several actions in the declaration mentioned. Verification.

Demurrer, assigning for causes, amongst others, that the question of the retainer of the plaintiff by the defendant was not in issue in the action by the plaintiff against the defendants, Oldershaw and A. Jenkinson, but arose incidentally and collaterally only; that it did not appear that the retainer found by the master is the same retainer as that put in issue by the plea; that there may have been such a retainer as that alleged in the replication, and yet no such retainer as that denied by the plea; that the replication is a departure from the declaration in this, that the plaintiff is alleged by the counts of the declaration to have been employed by the several persons in those counts mentioned to commence the actions, whereas it appears that he was employed to commence those actions by the defendant, by Oldershaw, and A. Jenkinson.

ure.

Lush, in support of the demurrer. The propositions in the declaration and the replication are quite distinct, and there is a clear departThe declaration alleges that the defendant falsely represented that he was authorized by Fennell to employ the plaintiff, whereas the replication alleges, in substance, that the defendant and two others gave a retainer to the plaintiff. The replication justifies the plea, and not the declaration. There is no estoppel. The declaration is framed on the principle laid down in Jenkins v. Hutchinson, 18 Law J. Rep. (N. s.) Q. B. 274.

[Martin, B. How is there any estoppel in this case? The judg ment alleged in the replication is not in point, but was merely to the effect that the plaintiff should recover a sum of money.]

Badeley, contra. First, the plea in this case merely puts in issue the question whether the plaintiff acted as attorney in the actions mentioned in the declaration. Powell v. Bradbury, 18 Law J. Rep. (N. S.) C. P. 116. Hallifax v. Chambers, 4 Mee. &. W. 662; s. c. 8 Law J. Rep. (N. s.) Exch. 117. Secondly, this is the case of an

Palmer v. Richards.

estoppel. The plaintiff recovered against the defendant Jenkinson, and that recovery was res judicata. The verdict established that the plaintiff had a good right of action. Now, if the retainer alleged in the declaration was in issue in that action against the three defendants, that question has been decided against the defendant in the present action, for it follows that the plaintiff must have been employed as attorney in the action brought by Fennell. An estoppel is sufficient if it be good to a common intent. Bro. Abr. "Estoppel," pl. 90.

[Martin, B. The estoppel is not reciprocal; it is not the same as if the action had been brought against the defendant alone with reference to the proceedings of Fennell. In Com. Dig. "Estoppel," E, 4, it is said that "an estoppel ought to be certain to every intent," and for that position the compiler cites Co. Litt. 352, b. That is inconsistent with the passage cited by you from Bro. Abr. pl. 90. The estoppel in your case is only by argument and inference.]

POLLOCK, C. B. Are you willing to amend?

Badeley consented to amend, by withdrawing the replication, and pleading a similiter.

Per curiam.1 The plaintiff may amend, otherwise there will be Judgment for the defendant.

PALMER V. RICHARDS.2

Trinity Term, May 28, 1851.

County Court Concurrent Jurisdiction - Certificate for Costs.

The court will not lay down any rule to regulate the discretionary power as to certifying for costs, which is given by the 13 & 14 Vict. c. 61, s. 12, to the judge who tries the cause.

THIS was an action, by the indorsee of a promissory note for 50%., against the maker; and upon the trial, before Pollock, C. B., at the sittings after Michaelmas term, the plaintiff recovered a verdict for 181. only. (See 15 Jur. 41; 1 Eng. Rep. 529.)

An application was subsequently made to the lord chief baron, at chambers, for a certificate to give the plaintiff, his costs under the 13 & 14 Vict. c. 61, s. 12, on the ground that the plaintiff resided in London and the defendant at Chatham, and that it was, therefore, a cause in which a concurrent jurisdiction existed under the 9 & 10 Vict. c. 95, s. 128, 129. His lordship declined to grant the certificate.

Prentice now moved for a rule, calling upon the defendant to show cause why the plaintiff should not have his costs. It is not con

I POLLOCK, C. B., ALDERSON, PLATT, and MARTIN, BB.

2 20 Law J. Rep. (N. s.) Exch. 323.

3 Before POLLOCK, C. B., PARKE, and ALDERSON, BB.

Doe d. Guest v. Bennett.

tended that Jones v. Harrison, 20 Law J. Rep. (N. s.) Exch. 166; s. c. 3 Eng. Rep. 579, was wrongly decided, but only that the court will lay down some general rule upon the subject, where the case is one in which there was a concurrent jurisdiction under the 9 & 10 Vict. c. 95, s. 128, 129. The discretionary power should be exercised with reference to the previous statute. The intention was merely to transfer the burden of proof in such cases from the defendant to the plaintiff. Here the parties resided more than twenty miles apart.

[Pollock, C. B. You applied to me, and were dissatisfied. You have no right of appeal under sect. 13.]

There would be an appeal according to the general rule, that the court may review what is done at chambers by a single judge. Graham v. Sandrinelli, 16 Mee. & W. 191; s. c. 16 Law J. Rep. (N. S.) Exch. 67.

[Alderson, B. If the lord chief baron had certified, there would have been no appeal, although the certificate might have been granted upon an erroneous ground, according to Cann v. Facey, 4 Ad. & E. 68; s. c. 5 Law J. Rep. (N. s.) K. B. 1.]

Per curiam. It has been settled that the power is discretionary under this act, and the object of this motion is to fetter that discretion by rules. Rule refused.

DOE d. GUEST v. BENNETT.1

Trinity Vacation, June 21, 1851.

Devise - Mortgage - Legal Estate.

The following devise, "I leave my wife, R. H., to receive all moneys upon mortgages," gives the wife the legal estate in the mortgaged premises.

EJECTMENT to recover possession of a dwelling-house and piece of land in Great Grimsby.

At the trial, before Alderson, B., at the last Lincolnshire Spring assizes, the following facts were proved: The lessor of the plaintif having borrowed a sum of money of Thomas Hayes, for securing the same caused the premises to be conveyed to him, in fee, by way of mortgage. Hayes, in 1838, made his will in these terms: "I also leave my wife, Rebecca Hayes, to receive all moneys upon mortgages, and on notes out at interest; and at my wife's decease, I leave my niece, Mary Brumpton, to bury my wife decently and to pay all my wife's debts, and to take all that remains of my property, land, or personal property." On the death of Hayes, Mary Brumpton married a person named Osburn, who sold the premises in question to the defendant. For the defendant, it was contended that the lessor of the plaintiff was not entitled to recover on the ground that the will of

1 20 Law J. Rep. (N. s.) Exch. 323.

Doe d. Guest v. Bennett.

Thomas Hayes conveyed the legal estate in the premises in question to his wife Rebecca. The learned judge reserved the point, and the jury found a verdict for the lessor of the plaintiff, with leave to the defendant to move to enter a verdict for him.

A rule nisi having been obtained accordingly,

Macaulay and Mellor showed cause. Under the terms of this will, the wife did not take the legal estate. Doe d. Roylance v. Lightfoot, 8 Mee. & W. 553; s. c. 11 Law J. Rep. (N. s.) Exch. 151, shows that, under a devise of the testator's real and personal estate, "after payment of his just debts and funeral expenses," lands mortgaged in fee to the testator do not pass. Silvester v. Jarman, 10 Price, 76, applies to this case; there the word "mortgages" occurs, but still the legal estate was held not to pass. The wife, no doubt, was entitled to receive the mortgage money, but she had not the legal estate. The rule, that a gift of mortgages places the donee in the situation of owner of the estate, does not apply to trust property. The reasoning urged in Doe d. Roylance v. Lightfoot expresses the whole of the arguments on behalf of the lessor of the plaintiff. They cited and referred to Mather v. Thomas, 10 Bing. 44; s. c. 2 Law J. Rep. (N. s.) C. P. 234; and 1 Jarman on Wills, 645.

[Parke, B., referred to Galliers v. Moss, 9 B. & C. 267; s. c. 7 Law J. Rep. K. B. 109.]

Hayes, in support of the rule. First, this will passed the legal estate to the wife; secondly, if it be held not to have that effect, it passed the property to the niece, notwithstanding the devise for payment of debts. The wife would be unable to obtain what she was entitled to, unless she had the legal estate. Mather v. Thomas applies to this case there a devise of messuages, buildings, chattels, rent, ready money, securities for money, debts owing, and personal estate, save what were before otherwise disposed of, to trustees and their heirs, in trust to pay the rents and profits to C. for life, and after his decease to divide such residue among the children of J. C., was held to pass lands vested in the devisor as mortgagee. There the word "securities" was used, and that makes the only distinction between that case and the present. All the authorities applicable to the point are collected in that case. Crips v. Grysil, Cro. Car. 37, is in point. [Parke, B. The record in that case was searched by Mr. Jarman, and it was found that the will contained other terms than those stated in the report.]

The giving of this land is a giving of the whole interest that the testator had in the land, subject to the same equity that existed against him.

[Alderson, B. The effect of the will is, in fact, this: "Whereas I, the testator, am mortgagee of certain property, I make you, the devisee, the mortgagee."]

The defendant relies on the meaning of the testator's intention, and upon the cases of Crips v. Grysil and Mather v. Thomas. He also cited Ex parte Barber and Silverschidt v. Schiott, 3 Ves. & B. 45.