liberty to inspect or transcribe the same, or any of them, when they, or either of them, shall think proper, and from placing, depositing, or keeping the said partnership books, or any of them, or permitting them, or any of them, to be placed, deposited, or kept at any other place than the said partnership premises, without the consent of the plaintiffs, and from further acting or interfering in any manner whatever in or about the said co-partnership business, or the property or affairs thereof. Speed moved, ex parte, for the injunction, but KNIGHT BRUCE, V. C., said he could not interfere at once, as asked, as to the books, but granted an interim order, as prayed, as to the cheques, bills, and notes, and gave leave to give notice of motion for the 7th as to the books. Dec. 7.-Russell, with Speed, now moved for the injunction, as prayed, notice having been served, and the affidavit being regular. KNIGHT BRUCE, V. C.-I think that in Lord Eldon's time, the Court has interfered in this manner as to books. The case for the injunction as to all but that is plain, and Lord Eldon has, I believe, interfered as to that in the way now sought. Russell stated that Lane v. Newdigate, (10 Ves. 192) was a case of that sort. Speed referred to Whittaker v. Howe, (3 Beav. 388*), where the Master of the Rolls has restrained the defendant from detaining and keeping possession of the books removed by him. -- KNIGHT BRUCE, V. C.-The order will be equivalent, or nearly so, to directing the defendant to bring back the books to the place of business; but, as both in Lord Eldon's time, and in a modern case, the practice had been so, he would make the order as to the books, leaving out the word "full," and it would stand thus:"And from hindering or preventing the above-named plaintiffs, or either of them, from having access to the books of the said partnership, and liberty to inspect or transcribe the same, or any of them, when they, or either of them, shall think proper, and from placing and depositing or keeping the said partnership books, or any of them, or permitting them, or any of them, to be placed, deposited, or kept at any other place than the place of business of the said partnership, without the consent of the said plaintiffs." VICE-CHANCELLOR WIGRAM'S COURT. SAVAGE V. LANE.-Nov. 23, 24, and 25. Executor-Payment by, of Legacies before Debts-Liability-Pleading. Where, in a Suit by a bond Creditor for Payment out of the Assets of the deceased Debtor, the Bill did not raise *In the report of the case of Whittaker v. Howe, the order is not stated. Mr. Freeling, one of the counsel in the cause, has favoured the reporter with a copy of the order, and it restrained the defendant as follows: "from detaining and keeping possession of the books, &c. removed by him or by his order from the chambers occupied by the plaintiffs, and for retaining which no written authority has been produced by the defendant, as mentioned in the plaintiffs' affidavits, of &c., or any or either of them (except the five boxes not claimed by the plaintiffs), and from permitting the same, or any or either of them, except the five boxes, to remain away from the office of the plaintiffs, and from parting with the books, deeds, documents, and papers removed by the said defendant, or by his order, from the chambers occupied by the plaintiffs, or any or either &c., except the five boxes not claimed by the plaintiffs, to any person or persons other than the plaintiffs, and from destroying, mutilating, or obliterating the said books, deeds, documents, and papers, or any or either of them, except as aforesaid, or any part or parts thereof respectively, or any entry or entries therein, and from making any alteration, interlineation, or erasure in the same, or any or either of them, until the hearing of the cause, or until further order." a Case of personal Liability against the Executor, but merely prayed an Account, the Court refused to make a Decree for Payment personally against the Executor, although he admitted, by his Answer, that he had paid some of the Legacies given by the Will, while the Plaintiff's Debt remained unpaid. A Testator, in his Lifetime, executed a Deed, whereby he conveyed certain Mines and Minerals to a Trustee in Fee, upon Trust for himself, the Testator, during his Life, and after his Decease, upon Trust to sell the same, and out of the Proceeds, first, to pay and discharge all the Debts of the Testator, so as to relieve and discharge all the real and personal Estate of the Testator from the same; secondly, to pay 3000l., to be applied for the Purposes of the Testator's Will; and, thirdly, to divide the Surplus into three Parts, and to pay such third Parts to the Cestui que Trusts therein respectively named:-Held, that the Mines and Minerals comprised in the Deed formed part of the Assets of the Testator, and that the Cestui que Trusts named in the Deed were necessary Parties to a Suit by a Creditor against the Executors and Devisees named in the Testor's Will for Payment out of the Assets. Joseph Lane, the testator in the cause, by his will dated June, 1831, after devising a portion of his real estate to H. B. Lane in fee, a second portion to his (the testator's) nephew, Thomas Lane, for life, with remainder to Farindon Lane, the eldest son of the said Thomas Lane, in fee, and a third portion to Thomas Lane in fee, devised and bequeathed the residue of his estate, real and personal, to the said Thomas Lane, his heirs, executors, and assigns, for ever. The testator then appointed the said Thomas Lane and Farindon Lane executors of his will. The testator died in 1831; and in 1832, H. B. Lane devised to his wife, Jane Lane, and Robert Stewart, their heirs and assigns, the property which had been devised to him by the testator. The bill was filed after the death of H. B. Lane, by the assignee of a bond debt due from the testator, Joseph Lane, against the said Thomas Lane, Farindon Lane, Jane Lane, and Robert Stewart, praying for payment out of the personal estate of the testator, Joseph Lane, and if that should prove insufficient, then that the deficiency might be raised out of the rents and profits, or by sale or mortgage of the real estate; and that the necessary accounts for that purpose might be taken of the testator's real and personal estate. Thomas Lane, by his answer, stated that, by an indenture dated 11th June, 1830, made between the testator, Joseph Lane, of the first part, the said defendant, Thomas Lane, of the second part, and the said Thomas Lane, H. B. Lane, and Farindon Lane, of the third part, the testator conveyed the mines and minerals under certain freehold and copy hold lands to the said defendant, Thomas Lane, after his death, upon trust to sell the same, and to stand in fee, upon trust for the testator during his life, and, possessed of the proceeds upon trust, first, to pay and discharge all the mortgage debt and debts of the said Joseph Lane, which then existed and were charged upon any estate of his, wheresoever situate, and all and every bond and bonds, specialty, or other debt and debts whatsoever, so as to relieve and discharge all the real and personal estate of the said Joseph Lane from the same; and, upon further trust, thereout to pay to the executors of the last will and testament of the said Joseph Lane, the sum of 30007., to be applicable to the purposes of any will the said Joseph Lane might make; and from and after payment thereof, then that the residue of all such money, as should from time to time accrue, should be divided in three equal parts, and that one of such parts should belong to and be held in trust for the said defendant, Thomas Lane, his executors, administrators, and assigns, and one other third part should belong to and be held in trust for the said H. B. Lane, his executors, administrators, and assigns; and the remaining third part thereof should belong and be paid to the said Thomas Lane, H. B. Lane, and Farindon Lane, their executors, administrators, and assigns, upon the trusts therein mentioned, for the benefit of the testator's nieces, Maria Lane, Harriet Boulton, and Elizabeth Cutliffe, and their respective children, grandchildren, or other issue. The answer then alleged, that the defendant, Thomas Lane, from the statements and representations made to him by the testator in his lifetime, had every reason to expect that the mines and minerals, and mineral property, comprised in and conveyed to the defendant by the said indenture, would have been fully ample to have realized money sufficient to pay all the debts of the said testator, and to answer and satisfy other the trusts and intents and purposes of that indenture, and that, under that impression, and with that conviction, he, the defendant, out of the personal estate of the testator possessed or realized by him, and the monies advanced by him to or for the benefit of the testator's estate, had paid some of the legacies bequeathed by the testator, and that he had also thereout paid divers sums of money towards payment of the debts of the testator, or in keeping down the interest thereon, in order to preserve the property, and that there was then a considerable sum of money due to him, the defendant, from the estate of the testator. From the answer of Farindon Lane, it appeared that he had not received any part of the testator's estate. At the hearing of the cause, Bickner, for the defendants, Thomas Lane and Farindon Lane, took a preliminary objection for want of parties, and submitted that the nieces of the testator, as cestui que trusts under the indenture of June, 1830, were necessary parties to the suit. Romilly and Grenside, for the plaintiff, asked for an order for immediate payment of the debt, without the delay of taking the account before the Master. The admission in the executor's answer of the payment of legacies, while some of the debts remained unpaid, was an implied admission of assets for payment of all the debts, and was sufficient ground for a decree for payment against the executor personally. (Spode v. Smith, 3 Russ. 521; Barnard v. Pumfrett, 5 My. & C. 63; Rogers v. Soutten, 2 Kee. 598; Woodgate v. Field, 2 Hare, 211). In that case, the presence of the testator's nieces would clearly be unnecessary, nor would it be requisite even for the purposes of the account. The property comprised in the deed of June, 1830, having been conveyed away by the testator in his lifetime, could not form part of his assets at his death. Bickner contended that the Court would not make a decree against the plaintiff personally, as such relief would be inconsistent with that specifically prayed, as well as with the case made by the bill. (Cook v. Martyn, 2 Atk. 3). Nor would it bind the executor to an admission of assets, where the legacies had been paid by mistake. (Horseley v. Challoner, 2 Ves. sen. 15). The parties claiming under the deed of June, 1830, as they were interested in the course of administration of the assets, were interested in the result of the accounts, and ought properly to be parties on the record. Malins appeared for the defendants, Jane Lane and Robert Stewart. Nov. 24.-Sir J. WIGRAM, V. C.-The bill in this case is filed by the assignee of a bond debt, for payment out of assets of the debtor. Two points were argued at the hearing. The first question is, whether I am to decree an account of the personal and real estate of the testator, which is the relief prayed by the bill, or whether I am at once to decree payment of the plaintiff's debt personally by the executor. The ground upon which I am asked to make the latter decree is an implied admission of assets by the executor, by having paid some legacies of the testator, whilst the plaintiff's debt remained unpaid. A passage from the answer of the executor admitting that such payment of legacies had been made was read by the plaintiff, and relied upon as sufficient to entitle him to a decree for payment of his debt, although the answer suggests that the legacies were paid under a mistake, by the executor, as to the amount of the assets. Without relying upon this suggestion in the answer, I am of opinion, that the plaintiff is entitled, in this stage of the cause, to an account, and to nothing more. The bill does not make the point, that the defendant has made himself personally liable to pay the plaintiff's debt by admission of assets, or on any other ground, and it prays an account of the testator's assets, and payment of the plaintiff's debt, in a due course of administration. Admitting, for the purposes of the argument, but not further, that payment of a legacy of 5., whilst debts remain unpaid, may be an admission of assets to pay all the testator's debts, it is obvious that the circumstances under which such payment was made may be material. And unless the plaintiff makes the point by his bill, instead of praying an account, the defendant has no opportunity of making a case in answer to the claim. I was told, however, that there were two authorities shewing that it was unnecessary that the point should be made by the bill: Woodgate v. Field, (2 Hare, 211), and Regers v. Soutten," (2 Keen. 518). But, in both those cases, the executor admitted assets; that is, he said, "Do not go to the expense of an account, for I admit that which it is the object of the account to establish." In Woodgate v. Field, the admission was an admission in terms. In Rogers v. Soutten, the defendant admitted the receipt of 2500l. personal estate, and stated the amount of debts, which left a balance more than suffcient to pay the legacies. Stopping there, the admis sion of assests was complete. But, notwithstanding the above facts, the executor denied assets; but the meaning of that denial depended upon the explanation he gave in his answer. The explanation was this, that the executor claimed to be entitled to the testator's real es tate. This claim was opposed by others, and the dispute ended by a compromise, according to the terms of which the executor was to have the real estate, he undertaking to pay the testator's debts and funeral and testamentary expenses, and the adverse claimants were to have the 25001. personal estate. The compromise was carried out, and the executor paid them the 25004 accordingly. The question then, which the Master of the Rolls had to decide, was, whether the expenditure by the executor of the personal estate (which in fact belonged to the legatees) for his own private purposes, discharged the executor from the admission of assets he had made in the first instance. The Master of the Rolls held, that it did not, in which I entirely agree with him. The denial of assets was not, as the Master of the Rolls observed, a denial that he had possessed assets sufficient to pay the legacies, for that he admitted; but simply a denial that he had them in hand at the time of filing his answer, which he had not, only because he had misapplied them, which of course the Court could not regard: Collis v. Collis, (2 Sim. 365). There must be, then, a deeree for an account. But a preliminary objection was taken to such a decree, upon the ground that certain persons, interested in parts of the testator's property under a deed executed by the testator in his lifetime, were necessary parties, and this was the other question argued. The deed which is set up by the an swers, and proved in the cause, is dated the 11th of June, 1830, and is made between the testator, Joseph Lane, of the first part; the defendant, Thomas Lane, of the second part; and the defendant, Thomas Lane, Henry Bowyer Lane, and the defendant Farindon Lane, of the third part. By this deed the testator conveyed the mines and minerals under certain freehold and copy hold lands to Thomas Lane in fee, upon trust, for the testator during his life, and, after his death, upen L 2 trust to sell the same, and out of the proceeds, first, to tator. The plaintiff, if bound to bring the parties inpay and discharge all the debts of the testator, so as to terested under the deed of the 11th of June, 1830, before relieve and discharge all the real and personal estate of the Court, is bound to do so, not on the ground that he the testator from the same; secondly, to pay 3007., to be claims under the deed, but because the parties who applied for the purposes of the testator's will; thirdly, claim under it are interested in the course of the adto divide the surplus into three parts, and pay it to the ministration of the assets. The real question is, could persons therein mentioned. It is these last-mentioned parties interested under the deed object to being parties who, the defendants contend, ought to be par-parties to this suit? i. e. could trustees who have ties to the suit. Thomas Lane, the trustee under the accepted this particular trust, and those who accept adeed, is already a party as an executor of the testator. benefits under the deed, refuse to be parties to a suit to The deed contains very complex powers and provisions administer the assets of the testator, the object of the as to the management of the trusts until the sale, but deed being, by means of its provisions, to protect the these do not affect the present question. At the time testator's other assets from his debts? As the plaintiff, 4 of the argument I stated my opinion generally upon however, has contended, and, I think, with apparent the law applicable to this objection; but as the correct- reason, that, if I should decide that the persons interestness of that opinion was afterwards challenged in ar- ed under the deed of the 11th of June, 1830, are neces1. gument, I will re-state it: The bill is to be paid out of sary parties to the suit, the payment of the testator's assets, first, personal; second, real. It is immaterial debts may be greatly delayed; and as the delay which for the present purpose whether the interest which the may possibly result from my making a decree, which testator had in the mines and minerals, comprised in for the present at least will avoid that inconvenience, the deed of the 11th of June, 1830, were real or per- will, if it should occur, fall upon the plaintiff, I will sonal estate. It is sufficient that it be shewn that he endeavour to frame inquiries which may possibly enhad an interest in those mines and minerals, which at able the creditors to obtain payment of their debts his death constituted part of his estate, and was applic- through the present parties to the suit, without injury able to payment of his debts. Now nothing can be to any. more clear than this, that where payment of a debt is Nov. 25.-Sir J. WIGRAM, V. C., read the following sought out of the assets of a deceased debtor, the credi- minutes of decree :-Refer it to the Master of this Court tor must bring before the Court the persons who stand in rotation, to take an account of the debts and funeral in the place of the testator in respect of those assets, the expenses of the testator, Joseph Lane, and he is to compersonal representative in respect of the personal estate, pute interest on such of his debts as carry interest the heir in respect of real estate descended, and the after the rate of interest the same respectively carry. devisee in respect of devised estates. The assets cannot And the said Master is to cause an advertisement to be be reached or marshalled without this, and the only published in the London Gazette, and such other pubquestion in this case is, whether the creditor is entitled lic papers as he shall think fit, for the creditors of the to say he will pursue those particular portions of the said testator to come in before him and prove their debts; assets which is comprised in the deed of 11th June, 1830, and he is to fix a peremptory day for that purpose, and only through the testator's representatives; or, whether such of the said creditors as shall not come in to prove he is not compellable, in the circumstances of this case, their debts by the time to be therein limited are to be to pursue that portion of the assets directly in conjunc- excluded the benefit of this decree. And the said Master tion with the other assets of the testator. That the is to take an account of the personal estate of the said mines and minerals in question are assets of the testator testator come to the hands of the said defendants, cannot be disputed. Suppose the deed of the 11th of Thomas Lane and Farindon Lane, his executors, or to June, 1830, had contained no gift of the ultimate sur- the hands of any other person or persons, by their or plus of the proceeds of the mines and minerals, after either of their order, or for their or either of their use; paying the debts; in that case, according to modern and the said Master is to inquire whether any and what decisions, the whole would have been a trust for the part of such personal estate is outstanding, and let the testator, and at his death the mines and minerals would personal estate of the said testator be applied in payhave been part of his assets. How, then, is the case ment of the debts and funeral expenses of the said tesaffected by the circumstance that the ultimate surplus tator, in a course of administration; and let the said is given over to volunteers. The only effect of that Master inquire whether the said testator died possessed gift is, that the testator cannot recall the interest so of any and what real estate; and he is to take an acgiven. The deed is binding upon him quoad hoc. count thereof, and to inquire whether the same, or any But, to the extent of the amount of the testator's debts, part thereof, is affected by any charge or incumbrance; his interest in the mines and minerals is untouched by and in making the last-mentioned inquiry, the Master it. Another proposition is equally clear, viz. that the is to inquire and state to the Court what is the present Court, in administering the assets of the testator, will state of the property comprised in the deed of the 11th have regard to the provisions of that deed, so as to day of June, 1830, and whether any part of the prothrow upon the mines and minerals, if that be the perty, subject to the trusts of that deed, is now availeffect of the deed, the testator's debts, in exoneration able for the payment of the said testator's debts, and, of his devised and other estates. The principle of mar- if so, to what amount. And if the Master shall find shalling may not, perhaps, be always just in practice that there is such a fund, and the same shall be insuffitowards creditors; but the principle is sound and can- cient for the payment of the said testator's debts, he is not be disputed. One party has two funds to resort to, to inquire whether the trustee acting in the trust of and the Court compels him to resort to that which will that deed, is willing, by sale or otherwise of the mines leave the rights of others, inter se, undisturbed. But it and minerals, under the trusts of the deed, to raise a was said, that the plaintiff did not claim under the fund sufficient for the payment of the said testator's deed of June, 1830, and, therefore, he might disregard debts; and if not, whether a fund may be so raised by it. There is an obvious fallacy in this argument: a sale of the testator's interest in the mines and minerals, creditor does not claim under the executor, or heir, or subject to the trusts of the deed; and let the said Masdevisee, he claims paramount all; yet, if he comes for ter inquire whether Thomas Lane, in the pleadings payment of his debt out of assets, he is compelled to named, has advanced any and what sums for the benefit bring all parties before the Court who represent the of the said estate. But these inquiries are to be withdifferent portions of the assets which the Court, pro- out prejudice to the right and interest of all parties fessing to give the creditor his due, will marshall in claiming under the said deed of the 11th of June, 1830, favour of parties claiming as volunteers under the tes-and without prejudice to any question in this cause, whether it may not become necessary to make parties to this suit, the persons interested under the said deed of the 11th of June, 1830. And for the better taking the said accounts, and making the aforesaid inquiries, the parties are to produce before the said Master, upon oath, all deeds, books, papers, and writings, in their custody or power relating thereto, and are to be examined upon interrogatories as the said Master shall direct; who, in taking the said accounts, is to make unto the parties all just allowances, and reserve the consideration of all further directions, and of the costs of this suit, until after the said Master shall have made his report, and any of the parties are to be at liberty to apply to this Court as there shall be ccasion. COURT OF QUEEN'S BENCH.-EASTER TERM. HUNTER V. CALDWELL.-April 26. After Verdict for Plaintiff a Rule Nisi for a new Trial or for arresting the Judgment was obtained; the Rule for a new Trial was made absolute, the Question of Costs being reserved. After Verdict for Plaintiff on the second Trial, a Rule Nisi for a new Trial, or for arresting the Judgment, was obtained, and afterwards discharged:-Held, that the Plaintiff was entitled to the Costs of the first Trial. L. & Co. having become Bankrupts or unable to pay, and, within a reasonable Time after such Notice, gave Notice to Defendants of the Premises, and, being Holder of the Notes, offered to Defendants to return them, and requested Defendants to pay the Debt; and that, had the Notes been presented to L. & Co., or to any Person on their Behalf, they would not have been paid. Rejoinder to Replication to fourth Plea, that Defendants delivered the Notes to Plaintiff in the bonâ fide Belief that they would be paid; that they had not, at the Time of the Delivery of the Notes, or before Plaintiff offered to return them, any Knowledge, or any Reason to believe, that L. & C. had become Bankrupts or unable to pay the Notes; and that Plaintiff did not give Defendants Notice of the Premises until after the Expiretion of a reasonable Time for Presentment:-Held, first, that the Pleas were good, Lord Denman, C. J., doubting. Secondly, that the Replication shewed a sufficient Excuse for Non-presentment, and a sufficient Notice to Defendants of the Insolvency of L. & Co. Thirdly, that the Rejoinder was no Answer to Replica tion, inasmuch as it was unnecessary for Plaintif to give Notice of the Insolvency of L. & Co. before the Epiration of a reasonable Time for Presentment. Debt for goods sold and delivered, and upon an account stated. Fourth plea, as to so much of the causes On the first trial of this action a verdict was given for of action in the said declaration mentioned as relates the plaintiff: a rule nisi was afterwards obtained for a to the sum of 45l., parcel of the several monies in the new trial for misdirection, and for the verdict being declaration mentioned, that, after the accruing of the against evidence, or to arrest the judgment. In Mi- said causes of action in the introductory part of this chaelmas Term, 1844, see ante, p. 772, the rule for a plea mentioned, and before the commencement of this new trial was made absolute, on the ground that the suit, to wit, on the 14th April, A. D. 1846, they the verdict was against the evidence, the question of costs defendants transferred and delivered to the plaintiff for being reserved. On the second trial a verdict was again and on account of the said sum of 45., and all causes given for the plaintiff, and a rule nisi was obtained for of action in respect thereof, divers, to wit, five proa new trial on the ground of misdirection, or for arrest-missory notes of and belonging to the defendants, and ing the judgment. At the sittings in banc after last Hilary Term the rule was discharged, see ante, p. 770. Crowder now applied to the Court to make it part of the rule that the plaintiff should have the costs of the former trial. Knowles and Bovill shewed cause in the first instance. Lord DENMAN, C. J.-The plaintiff must pay the costs of the first trial, as the price of trying the cause a second time. PATTESON, J.-It is the same thing as if the Court had refused to arrest the judgment in the first instance: in that case the defendant would have had to pay the costs of the first trial. WIGHTMAN and ERLE, JJ., concurred. Crowder asked that the application should be granted with costs. Lord DENMAN, C. J.-It appears that is not usual. -Application granted, without costs*. TRINITY TERM. ROBSON V. OLIVER and Another.-June 1. Debt for Goods sold. Fourth Plea, that Defendants delivered to Plaintiff, for and on account of the Debt, Promissory Notes, of which Defendants were Bearers, made by L. & Co., payable to Bearer on Demand, and that Plaintiff did not present them within a reasonable Time. Fifth Plea, that no Notice of Dishonour was given to Defendants. Replication, that, before the Delivery of the Notes to Plaintiff, L. & Co. be came Bankrupts and unable to pay them; that, at the Time of the Delivery of the Notes, Plaintiff had no Notice or Knowledge of L. & Co. having become Bankrupts or unable to pay; that, before a reasonable Time for Presentment had elapsed, Plaintiff had Notice of * See Reg. v. The Poor Law Commissioners, ante, pp. 99, 101. of which the defendants then were the bearers, and entitled to demand payment, that is to say, four certain promissory notes, by each of which certain persons, therein described by the name, style, and firm of La tham & Co., promised to pay to a certain person therein described as Mr. F. Gregory, or bearer, 10%. on demand, at a certain place therein named, to wit, at Dover, in the county of Kent, or at a certain other place, to wit, in London, that is to say, at a certain place there known as the banking-house of Messrs. Barnetts, Hoare, & Co., bankers, London, and also a certain other promis sory note, whereby the said persons so described by the name, style, and firm of Latham & Co., as afore said, and who were in like manner described in the said last-mentioned note, promised to pay to a certain person therein described as Mr. F. Gregory, or bearer, 51. on demand, at a certain place therein named, to wit, at Dover aforesaid, or at a certain other place, to wit, in London, that is to say, at the said place there known as the banking-house of Messrs. Barnetts, Hoare, & Co., bankers, London, and the plaintiff them accepted and received the said promissory notes in this plea mentioned for and on account of the said sum of 45., in the introductory part of this plea mentioned, and all causes of action in respect thereof. Averment, that the plaintiff did not, nor did any other person, within a reasonable time after the said transfer and delivery in this plea mentioned, or at any time before the commencement of this suit, present the said promissory notes, or any or either of them, to the said persons therein described as Messrs. Latham & Co., or to any person on their behalf, at Dover aforesaid, or at the said banking-house at London aforesaid, or at any other place, nor was any demand of the said sums of money in the said notes respectively mentioned made by or on behalf of the plaintiff, or at all, upon the said Messrs. Latham & Co., or any person on their behalf, at Dover aforesaid, or at the said banking-house, or at any other place, within a reasonable time after the said notes IP were so transferred and delivered as aforesaid, or at any time before the commencement of this suit. Verification. The fifth plea was similar, alleging that eno due or sufficient notice of dishonour, or any notice r of dishonour of the notes, had been given to the defendants. Replication to the fourth plea, that, after the A making of the said notes, and on the day before the f same were so transferred and delivered by the defendants to the plaintiff, as in the said fourth plea mentioned, to wit, on the 13th April, a. D. 1846, the said Messrs. Latham & Co. became and were bankrupts and insolvent, and wholly unable to pay the said notes, or any or either of them, or any part thereof, and they continued such bankrupts and insolvent, and wholly unable to pay the said notes, or any or either of them, or any part thereof, from thence until, at, and after the plaintiff tendered and offered to return to the defendants the said notes, and until the defendants refused to take the same back, as hereafter mentioned, and from thence hitherto, nor would any person or persons on their behalf, at any time during the time aforesaid, have paid the said notes, or any or either of them, or any part thereof. Averment, that, before or at the time of the said transfer and delivery to him of the said notes in the said fourth plea mentioned, the plaintiff had not notice or any knowledge whatever that the said Messrs. Latham & Co. had so become bankrupts or insolvent, or that they were unable to pay the said notes, or any or either of them, or any part thereof, as aforesaid; and that, afterwards, and before a reasonable time had elapsed after the said transfer and delivery of the said notes to the plaintiff for the presentment of the same to the said Messrs. Latham & Co., or to any person on their behalf, at Dover aforesaid, or at the said banking-house at London aforesaid, or elsewhere, for payment thereof, to wit, on the 18th April, A. D. 1846, the plaintiff for the first time discovered, and had notice or knowledge of the said Messrs. Latham & Co. having so become bankrupts as aforesaid, or of their being so insolvent or so unable to pay the said notes as aforesaid; and that, within a reasonable time after such discovery, and after they so had notice or knowledge of the said facts, or of any or either of them, and before the commencement of this suit, to wit, on the 20th April, A. D. 1846, the plaintiff gave to the defendants notice of the premises, and being holder of the I said notes in the said fourth plea mentioned, then tendered and offered to the defendants to return and deliver up to them the said notes, and requested the defendants to pay to the plaintiff the said sum of 45l., parcel &c. But the defendants then, and from thence hitherto, have wholly refused to accept or receive back the said notes, or any or either of them, or to pay to the plaintiff the said sum of 45l., parcel &c.; and that, had the said notes been, or any or either of them, at any time after the said Messrs. Latham & Co. became bankrupt or insolvent, or unable to pay the same as aforesaid, or after the said transfer and delivery thereof by the defendants to the plaintiff as aforesaid, been presented to the said Messrs. Latham & Co., or to any person on their behalf, at Dover aforesaid, or at the said banking-house at London aforesaid, or at any other place, for payment thereof, the same would not, nor would any or either of them, or any part thereof, have been paid by the said Messrs. Latham & Co., or by any person or persons on their behalf, or otherwise; and the defendants sustained no damage or loss whatever by the non-presentment of the same to the said Messrs. Latham & Co., or to any person on their behalf, at Dover aforesaid, or at the said banking-house at London aforesaid, or otherwise for payment thereof, of which premises the defendants also, at the time of the said tender and offer to re-deliver and deliver up to them the notes as aforesaid, had notice.-Verification. The replication to the fifth plea was similar to the replication to the fourth. Rejoinder to the replication to the fourth plea, That the defendants were the holders of the said notes as in the said fourth plea mentioned, in the regular course of business; and that, so being such holders, they transferred and delivered the said notes to the plaintiff, as in the fourth plea mentioned, in the like regular course of business, and in the sincere and bonâ fide belief and expectation that the said notes and each of them would be duly paid and honoured upon the same being presented for payment, according to the tenor and effect thereof. And that the defendants had not, at the time of the delivery or transfer of the said notes to the plaintiff, as in the said fourth plea mentioned, nor at any time before the plaintiff gave the defendants the said notices in the said replication to the said fourth plea alleged to have been given by the plaintiff to the defendants, or before the plaintiff so tendered and offered to return and deliver up the said notes, as in the said replication to the said fourth plea mentioned, any knowledge, notice, belief, or suspicion, or any reason to know, suspect, or believe that the said Messrs. Latham & Co., in the replication to the said fourth plea mentioned, had become or were bankrupts or insolvent, or unable to pay the said notes, or any of them, or that the said notes, or any of them, would not be duly honoured and paid, nor had any fiat or fiats in bankruptcy then issued against the said Messrs. Latham & Co. And that the plaintiff did not give to the defendants the said notices in the said replication to the fourth plea alleged to have been given by the plaintiff to the defendants, or any notice of the premises in that replication mentioned, or of any part thereof, until after the expiration of a reasonable time for the presentment for payment of the said promissory notes; nor did the plaintiff tender or offer to return or deliver up to the defendants the said notes or any of them, or request the defendants to pay the plaintiff the said sum of 45. in the said replication to the fourth plea mentioned, at any time after the said transfer and delivery of the said notes to the plaintiff, and before the expiration of such reasonable time as last aforesaid.-Verification. Demurrer to the replication to the fifth plea on the following, among other grounds, that it did not contain any sufficient excuse for not giving due or sufficient notice of the dishonour of the said notes; and that it was not alleged, nor did it appear by the replication, that the said notes differed from other promissory notes, or that the bankruptcy or insolvency of the makers thereof would dispense with presentment or notice of dishonour, or render a return of the said notes to the defendants a substitute for presentment, or for due and sufficient notice of dishonour, which the said replication admits not to have been given. Demurrer to the rejoinder to the replication to the fourth plea, "That it does not sufficiently confess and avoid, or traverse and deny, the matters in the said replication alleged. That it is multifarious, and alleges facts wholly immaterial to the merits. That the averment that the said notice was not given until after the expiration of a reasonable time for the presentment of the said promissory notes is improper and immaterial, inasmuch as the defendants have admitted that the plaintiff first discovered the bankruptcy and insolvency of the said Messrs. Latham & Co., before a reasonable time after the said transfer and delivery of the said notes had elapsed for presenting the same. That the plaintiff cannot traverse the allegation, that notice was not given until after the expiration of a reasonable time for presentment, because, by so doing, he would be guilty of a departure from his previous pleading, which alleges, that notice was given in a reasonable time after discovery of the bankruptcy and insolvency of the said Messrs. Latham & Co. That the defendants should have traversed such averment of the plaintiff, or, if the |