In consequence of this, the record in the present action was withdrawn by the plaintiffs. In Michaelmas Term, 1845, a rule nisi to enter a verdict pursuant to the leave reserved, or for a new trial, was obtained in Taylor v. Clay, and the case was now standing in the new trial paper for argument. On the 9th November, 1845, a rule nisi for judgment as in case of a nonsuit was obtained in the present action, which was discharged on a peremptory undertaking to try at the next Glamorganshire assizes. On the last day of Hilary Term, 1846, Hurlstone obtained a rule calling upon the defendants (the Port Talbot Company) to shew cause why the peremptory undertaking should not be enlarged to try at the next summer assizes for Glamorganshire. This rule was obtained on an affidavit, setting out the facts before stated, and also, that, if a new trial were granted in Taylor v. Clay, the present action would be brought on for trial at the same time; that the principle witnesses for the plaintiffs were mariners, who were at pre--It is clear, from the circumstances, that you were not sent abroad, and that the plaintiffs could not safely proceed to trial without their testimony. The rule had been enlarged to the present term.

E. V. Williams now shewed cause.-The same question, it is conceded, was involved in both actions, but there are several other points of law in the other action; and the principal question is, whether the fact of a rule nisi for a new trial having been granted in the other case upon points of law not connected with the present cause is any excuse for not proceeding to trial pursuant to the peremptory undertaking. The affidavit in this case ought to state who the witnesses are that are absent; a mere general statement that they are mariners is not sufficient. No case can be cited in which a trial has been postponed on such an affidavit as this. This is distinguishable from Rogers v. Vandercom, (10 Jur. 1035). The plaintiffs must have known that there was no probability of the rule for the new trial being disposed of before the spring assizes, when the peremptory undertaking was given, and ought to have then asked for a longer delay.

Hurlstone, in support of the rule.-Here the affidavit states, that the very same question is pending in both these causes. It is laid down in the books of practice as a sufficient ground for proceeding to trial. (Archb. Pract. 1080). In Lumley v. Dubourg (14 Mee. & W. 295; 3 D. & L. 80; 14 Law Journ., N. S., Exch., 334) and Petrie v. Cullen (7 Man. & G. 576) it was argued, that the plaintiff ought to have come to enlarge the peremptory undertaking before judgment absolute had been obtained. That course has been adopted here. [Wightman, J.-The question really is, whether, under the circumstances, there is any reasonable ground for the plaintiff not proceeding to trial.] It is submitted, that, the venue having been changed by the defendants themselves on the very ground that the same questions were involved in both actions, they are estopped from denying it now.

WIGHTMAN, J.-It appears to me to be rather a question of fact than of law, whether the same points are or are not involved? However, under all the circumstances of the case, I consider the peremptory undertaking should be enlarged, the plaintiffs paying the defendants the costs of the day (if any) for not proceeding to trial pursuant to the peremptory undertaking; and if not paid, the rule to be discharged.-Rule absolute accordingly.

MICHAELMAS TERM.

LEMAGE V. MEALING.-Nov. 19. Where the Defendant's Attorney left the Court in consequence of Plaintiff's Counsel saying he would with draw the Record, "but it was not actually done, and the Plaintiff's Counsel went on and gained a Verdict, Held, there must be a New Trial.

Symons had obtained a rule to shew cause why the

verdict in this action should not be set aside and a new trial had, and why defendant should not pay the costs. Thomas shewed cause.-These were two causes heard in the sheriff's court between the parties; one stood No. 3 on the list, but was the first called: unfortunately, the attorney happened at the moment to be absent, and a nonsuit was the consequence, as he was an indispensable witness. The cause No. 1 was then taken in its turn; but the attorney on the other side had then left the court, and a verdict was gained. It was alleged on the other side, that they were informed by the officer of the court that the record was withdrawn; but it was not, as was proved by the fact that the cause was ultimately proceeded with. In the first case, the counsel had wished to withdraw the record when he found himself about to be nonsuited, but the defendant would not permit him. It would have been absurd for him in this case to have withdrawn the record. [Patteson, J. ready yourselves to go on.] The affidavit of defendant's attorney alleged that the counsel only, and not the attorney, declared he would withdraw the record. It was his duty to have seen that it was actually done before he left. An application to set aside a verdict merely in consequence of a hasty expression used by counsel cannot be entertained.

Symons, contra.-When the cause was called on, we were perfectly ready. The attorney understood the record was withdrawn. [Patteson, J.-It is clear it was not done formally.] That might be, but every one in court was under the impression that the fact was so, including the judge and the usher, of whom inquiry was made. This constituted a sufficient ground for the application.

PATTESON, J., made the rule absolute, but costs to abide the event.-Rule accordingly.

HILARY TERM.

REG. v. THE JUSTICES OF STAFFORDSHIRE.-Jan. 28. Where, in the Grounds of Appeal from an Order for the Removal of a Pauper, it is stated that the Examinations do not" contain sufficient legal Evidence of the Pauper's being settled in the Appellant Parish, or having come to settle in the Respondent Parish," Ob jection may be taken on these Grounds as to Proof of the Identity of the Parties through whom the Pauper claims the Settlement.

Huddlestone had obtained a rule nisi for a mandamus to the above justices, to enter continuances and hear an appeal.

Whately and Corbett shewed cause.-In this case the appellants gave notice of an appeal, and the grounds thereof, against an order for the removal of a pauper. The chief objection was, that the order and the notice of chargeability, and the examination, were defective and bad on the face of them, and contained no sufficient legal evidence of the pauper's being settled in the appellant parish, or of his having come to settle in the respondent parish, &c. At the quarter sessions the objection taken by the appellants to the examination was, that the identity of the parties, through whom the pauper claimed the settlement, was not made out by legal evidence. The respondents, however, contended, that that objection was not included under the above grounds of appeal, and therefore could not be adjudicated on by the justices. They, however, decided that the objection was both rightly taken, and in itself valid, and therefore quashed the order; hence the present application. It was clear, however, that the objection was fairly let in under the grounds of appeal, and, as the whole matter was within the discretion of the justices, and they had pronounced judgment upon it, the Court would not interfere. In fact, the only return that could be made to the mandamus was, that the appeal had

been already heard and adjudicated upon. (Reg. v. The Justices of Yorkshire, 5 B. & C. 508).

Whitmore and Huddlestone, contra.-There had been no valid hearing and decision on the point in dispute. The ground of appeal was the want of sufficient legal evidence of the settlement of the pauper. The objection allowed by the justices was the want of sufficient evidence of the identity of the parties through whom the pauper claimed. Now, under the 1st section of the Poor Law Act, if it was intended to raise this question of identity, the grounds of appeal were insufficient; they were not explicit enough did not give adequate information-were more likely to mislead than to guide the respondents. They understood the objection to apply to the want of evidence of a legal nature, and that was the natural construction of the term. Again, it was established by the case of Reg. v. Kesteven, 3 Q. B. Rep. 810), that, when there are general and specific grounds of appeal, the party must be confined to the latter; the former are merely introductory. That was precisely the present case; the appellants had alleged specific objections, and could not, therefore, raise any others. As the justices had thus entertained a question which they had no right to adjudicate on, they had exceeded their jurisdiction; and, as their decision on this point was the basis of their ultimate judgment, that judgment was absolutely null, and it must be considered that the appeal had not been adjudicated upon at all. (Reg. v. Stapleford Fitzpaine, 11 Law Journ., N. S., M. C., 38).

grant leases of the said several closes in which &c.; and the said Sir Charles Mill afterwards, and before the said several times when &c., or any of them, to wit, on &c., died so seised &c.; whereupon and whereby the said defendant Sir John B. Mill became, and was, and still is seised in his demesne as of freehold, for the term of his natural life, of and in the said several closes in which &c., with the appurtenances, and of and in the said lordship and manor of Milbrook, with the appurtenances; and thereupon, afterwards, and before the said several times when &c., or any of them, to wit, on the 28th July, 1845, he the said defendant Sir John B. Mill, then being so seised &c., did, under and by virtue of the estate and interest of him the said defendant Sir John B. Mill in the said several closes in which &c., with the appurtenances, and also under and by virtue of the power and authority given to him by the said will of the said Sir Charles Mill in that behalf, grant and demise unto Charles Bridger, his executors, administrators, and assigns, amongst other things, the said several closes in the declaration mentioned, to have and to hold &c. for and during the term of ninety-nine years, if one Capson Bridger, one Osmer Bridger, and one Arthur Bridger, or any or either of them, should so long live. And the defendants say, that afterwards, to wit, on &c., the said Bridger entered and took possession of the said several closes in which &c., as tenant thereof to the said Sir John B. Mill, under and by virtue of the said last-mentioned grant and demise. And the defendants say that, afterwards, that is to say, on the day and year last aforesaid, by a certain indenture then made by and between the said Sir John B. Mill of the one part, and the said Bridger of the other part, [profert of the deed], Bridger did, amongst other things, grant unto the said defendant Sir John B. Mill, and

ERLE, J.—I think the grounds of appeal sufficiently raise the objection taken. They give, first, a generic ground, and then two explanatory ones, as to the proof of inhabitancy in the one parish, and chargeability to the other. The justices had a right to look into the whole question; the matter is clearly within their jurisdiction, and their judgment is final.-Rule dis-other the person or persons for the time being entitled charged, with costs.

COURT OF COMMON PLEAS.-MICH. TERM. PANNELL. MILL, Bart., and Another.-June 5 and

Nov. 19.

Grant, Construction of Royalties, Reservation of-Free

Warren.

A., being possessed of certain Lands, granted the same for a Term of Years to B., "excepting, and always reserving to himself, all Royalties whatsoever to the said Premises belonging or appertaining." There was also a Proviso in the Deed, that it should be lawful for A., during the Demise, to lay Informations, &c. in the Name of B. or his Tenants, being Occupiers, &c., against all Persons trespassing upon the Land, by means of hunting, coursing, shooting, or sporting thereon, A. paying all the Costs of such Proceedings:Held, that, under this Deed, A. had no Right to enter upon the Lands for the purpose of killing Birds of free Warren.

in reversion or remainder immediately expectant upon the determination of the term so granted by the said Sir John B. Mill as above in this plea mentioned, the birds of warren at any time during the said term sole and exclusive right to pursue, kill, and take all being in and upon the said several closes, or any of them; together with free liberty for himself, themselves, and his and their servants, to enter into and upon the said several closes in which &c., or any part thereof, and thereon to pursue, kill, and take the birds of warren in and upon the same, at any time, at his and their free will and pleasure. The defendants then justified committing the trespasses-the defendant Sir John B. Mill, by virtue of the said grant, and in exercise of the said rights so conferred thereby; and the other defendant, as his servant, and by his command, for the purpose of pursuing and killing and taking on the said closes divers, to wit, ten birds of warren, to wit, partridges.-Verification. The plaintiff craved oyer of the indenture in the third plea mentioned, and, having set it out, demurred to the plea. Joinder This was an action of trespass for breaking and en-in demurrer. The indenture, as set out on oyer, was tering certain closes of the plaintiff. The defendants pleaded, thirdly, that, long before the said several times when &c., or any of them, Sir Charles Mill, Bart., was seised in his demesne as of fee in, amongst other things, the said several closes in which &c., and also of and in the lordship and manor of Milbrook, of the demesne lands of which manor the said several closes in which &c. then were and still are part, and, being so seised, afterwards, to wit, on &c., duly made and published his will &c., and thereby (inter alia) gave and devised the said several closes in which &c., with the appurtenances, and also the said lordship and manor of Milbrook, with the appurtenances, to the said defendant Sir John B. Mill, for the term of his natural life, and also by his said will gave to the said defendant Sir John B. Mill power and authority to

an indenture between the defendant Mill of the one part, and one Charles Bridger of the other part, by which the defendant Mill demised to Bridger, for a certain term, the premises in which &c., excepting and reserving unto the defendant Mill, and other the person or persons for the time being entitled to the said premises demised in reversion or remainder immediately expectant upon the determination of the term thereby granted, all timber trees, &c., and also "all royalties whatsoever to the said premises belonging or in any way appertaining." [The other parts of the indenture are adverted to in the judgment of the Court.]

Channell, Serjt., (Barstow with him), in support of the demurrer. The plea claims an exclusive right for the defendant Mill to pursue, kill, and take aÏl.birds

of warren in and upon the said closes in which &c., and several closes in which &c., with the appurtenances, to also an exclusive right to enter upon the closes to pur- the said defendant Sir John B. Mill, for life; and also sue and take the birds of warren. And it is submitted by his will granted to Sir John B. Mill power and auon the part of the plaintiff, that the reservation in the thority to grant leases of the said several closes in which lease of "all royalties whatsoever to the premises be- &c. That the said Sir C. Mill died seised &c., without longing or in any wise appertaining," and which is re-altering his will, whereupon and whereby the said Sir lied upon by the defendants, does not confer such a right John B. Mill became, and was, and still is seised in his as that pleaded in the said plea. Supposing the reserv- demesne as of freehold for life of and in the said several ation may be treated as a grant, and also supposing the closes in which &c., and of and in the said lordship and word "royalties" equal to free warren, and such warren manor &c., with the appurtenances; and Sir John B. comprises this game, yet it would, by reason of the Mill, under and by virtue of his estate and interest in words "belonging or appertaining," confer only a right the said closes, and under and by virtue of the powers to warren appurtenant; and there is no allegation in given him by the will of the said Sir C. Mill, granted this plea that the right claimed is for warren appurte- and demised to Charles Bridger, his executors, admininant to the lands. There is a great distinction between strators, and assigns, the said several closes in the defree warren in gross and free warren appurtenant. claration mentioned, for ninety-nine years, if Capson (Morris v. Dimes, 1 Adol. & Ell. 654; Bowlston v. Bridger, Osmer Bridger, and Arthur Bridger, or any or Hardy, Cro. Eliz. 547). But it is objected that the either of them, should so long live; that Charles words "all royalties" do not confer a right to free Bridger entered and took possession &c.; and that af warren, or give a right of entry on lands in pursuit of terwards, by indenture made between Sir John B. Mill game. In Pickering v. Noyes, (4 B. & C. 639), there of the one part, and the said Charles Bridger of the was no grant, but a deed reserving all royalties, as in other part, the said Charles Bridger granted to Sir John this case; and it was held, that a jury ought not to have B. Mill, and other the person or persons for the time presumed a grant. [Maule, J.-That case proceeded being entitled to the reversion or remainder immeon the ground, that there was not evidence of such long diately expectant upon the termination of the term so enjoyment of the right claimed which would warrant a granted as above mentioned, the sole and exclusive jury in presuming that there had been a grant of free right to pursue, kill, and take all birds of warren at warren.] any time during the said term being in and upon the said several closes, or any of them; together with free liberty for himself, themselves, and his and their servants, to enter into and upon the said several closes in which &c., and therein to pursue and kill and take the birds of warren in and upon the same, at any time, at his and their free will and pleasure. The defendants then justify the alleged trespass, on the ground that they were in the said closes for the purpose of pursuing therein birds of warren according to the terms of the deed. The plaintiff thereupon craved oyer of the indenture. By that indenture, made between Sir John B. Mill of the one part, and Charles Bridger of the other part, Sir John B. Mill, for the considerations therein mentioned, granted, demised, and appointed to Charles Bridger, his executors, administrators, and assigns, divers lands and tenements therein particularly mentioned, then in the tenure of John Pannell, except and always reserved out of the demise to Sir John B. Mill, and other the person or persons entitled to the said several closes thereby demised in reversion or remainder immediately expectant upon the termination of the term therein mentioned, all timber trees, or trees likely to become timber or fit for timber, with the tops and boughs thereof; and the bodies of all pollards standing, growing, or being on the said demised premises, or any part thereof, with full and free liberty for the person or persons who, under the limitations of the aforesaid Sir C. Mill, might be entitled in that behalf, and all others by them or him duly authorised, but not further nor otherwise, at all times to fell, take, and carry away the same at his or their will and pleasure; and also except and reserved all royalties whatsoever to the said premises belonging or appertaining; to have and to hold the demised premises, with their ap purtenances, except as before mentioned, for ninetynine years, if Capson Bridger, Osmer Bridger, or Arthur Nov. 19.-COLTMAN, J., now delivered the judgment Bridger, or any of them, should so long live, yielding of the Court. This case was argued before the late and paying the yearly rent of 3s. 6d. And after various Lord Chief Justice Tindal, my Brothers Maule, Cress-provisions, not material to consider, there is the followwell, and myself. It was an action of trespass for ing proviso; namely, that it shall be lawful for the said breaking and entering the closes of the plaintiff, and Sir John B. Mill, and his assigns, or the person or per doing damage thereon. The defendant pleaded, thirdly, sons for the time being entitled as aforesaid, from time that Sir C. Mill, Bart., was seised in his demesne as of to time, during the continuance of this demise, to comfee of the closes in which &c., and also of the lordship mence and prosecute any action or actions, or lay inand manor of Milbrook, of the demesne lands of formations in the name or names of the said Charles which manor the said closes then were and still are Bridger, his executors, administrators, and assigns, or part; that the said Sir C. Mill, Bart., devised the said his or their tenants, being occupiers of the said demised

Sir T. Wilde, (Manning, Serjt., and Fitzherbert with him), contra.-Pickering v. Noyes does not apply. There the deeds, when produced, negatived the reservation pleaded, and the evidence did not support an exclusive right to kill game. In this case, the construction to be put on the reservation in the deed is, as to what may appear therefrom to have been the intention of the parties. The words are not to be taken in their strict sense; but the Court will look at the object and intention of the parties, and if the language used will admit of such intention being comprised in it, the Court will give effect to it. Thus, the word "freight" strictly means the hire of a vessel; yet, in Devaux v. J'Anson, (5 Bing. N. C. 519), a ship-owner's interest in the profit of conveying goods was held to be described as freight, and the ship-owner was allowed to recover on an assurance effected by him on goods. So here, under the word "royalties" it is evident that the parties meant to reserve all that usually passes under that term, although the party to whom it was reserved had parted with the possession of the land; and it was, therefore, not strictly meant to be a right appurtenant. The word "appertaining" must be taken in its popular meaning; and thus the right was a reservation of all warren on the land. The Durham and Sunderland Railway Company v. Walker (2 Q. B. Rep. 940) is an authority that a reservation in a deed will operate by way of grant. If the grant carries the free warren contended for, the right of entry follows as a matter of course. (Hinckcliffe v. The Earl of Kinnoul, 5 Bing. N. C. 1).

Channell, Serjt., replied, citing Barlow v. Rhodes (1 C. & M. 439) as shewing, that, in consequence of the words "belonging or in anywise appertaining," no warren would pass unless legally appurtenant.

Cur, adv. vult.

PREROGATIVE COURT.

v. QUINCEY and Others.-April 18. Admissibility of extrinsic Evidence. Codicil executed in 1843 purported to be a Codicil to a Will of 1833, which was not in existence, and was supposed to have been destroyed, when a Will of 1837 was executed. Evidence admitted to shew that the Reference to the Will of 1833 was a Mistake, and that the Will of 1837 was that intended by the Testator. Probate of the Will of 1837 and Codicil of 1843 granted.

premises, or any part thereof, against all persons who | ham v. Hawker, the intention of the parties was clearly shall trespass on any of the land thereby demised, expressed; in the present case there is no such clear infor the purpose or by means of hunting, coursing, dication of intention. Charles Bridger might sue in shooting, or sporting thereon, &c., Sir John B. Mill, the name of his tenants to prevent trespasses on the land; his heirs or assigns, or other the person or persons en- and if he had been asked to give a liberty to Sir John titled as aforesaid, bearing and paying all the costs and B. Mill and his assigns to sport over the land, he might expenses attending every such action or prosecution or have refused. On the whole, therefore, we think, if information, and indemnifying the said Charles Bridger, we take the words "except and always reserved all his executors, administrators, and assigns, or his or royalties" as amounting to an exception, they must be their tenants as aforesaid, and every of them, there- taken to be the words of Sir John B. Mill as the from. The indenture having been set out on oyer, the grantor of Bridger: if, on the other hand, they cannot plaintiff demurred to the pleas. The question arises in be taken to be an exception or reservation, still they canthese pleadings, whether the indenture set out on oyer not be considered as amounting to a grant by Bridger, does, in legal effect, amount to a grant, such as is set up with the liberty of entering on the land for the purpose in the pleas. On the part of the defendant, the case of of shooting, unless we see clearly that such an intention Wickham v. Hawker (7 Mee. & W. 63) was relied on is to be collected from the words used. Therefore, to shew, that when there was a grant or conveyance of there will be judgment for the plaintiff. This is the land containing the words "excepting and reserving to judgment of my Brothers Maule, Cresswell, and myself; the grantors, their heirs and assigns, liberty to come on the opinion of the late Lord Chief Justice not having the land, and hawk, hunt, fish, and fowl," as such a been declared.-Judgment for the plaintiff. liberty cannot amount to an exception or reservation, that clause will operate as a grant by the party to whom the land is conveyed; and it was said that the word "royalty" was a proper description of the right In the Goods of BURTON BROWN.-QUINCEY and Others of free warren. Keble v. Hickringill (11 Mod. 74) was cited, in which the court is reported to have said, the word "royalty" signifies free warren; that is, though there is no right of free warren, a grant of free warren to a subject shall be considered to be a grant of liberty to enter on the land and kill birds of warren. The case of Parkhurst v. Smith (Willes, 332) was also cited, where it is said that the construction of deeds ought to be favourable, and as near to the apparent intent of the parties as it possibly may be; and that too much regard is not to be had to the natural and proper signification of words and sentences to prevent the simple intention of the parties from taking effect, for that the law is not nice in grants, and therefore often transposes words contrary to their order, to bring them to the intent of the parties. Hill v. Grange (Plowd. 170 a) was cited for the same purpose; and it was said, that here there could be no doubt that the parties intended that Sir John B. Mill should have the right of sporting, other wise the clause authorising him to prosecute trespassers in the name of the tenants, but at his own expense, would be idle; for no one would suppose that he would be willing to incur the expense of preserving his game and prosecuting trespassers, unless he had the right of shooting the game when preserved. The present case is distinguishable from Wickham v. Hawker, as in that case the clause "excepting and reserving liberty to hunt" could not by possibility operate as an exception or reservation. In the present case it is not so, for a royalty may be by law appurtenant to land; as in the case of a warren, a man may have warren on his own land, and that is a right description. In Brooke's Abr., tit.“ Warren," pl. 2, and Boulston v. Hardy, (Cro. Eliz. 547), it is said, "A warren is not parcel nor any member of a manor, but it may be appertaining, but that is by prescription." And it is said in Dyer, 30 b., Hil. T., 28 Hen. 8, a man may have warren in the land of another, and he may have warren as appurtenant to his own manor; and if the manor be granted cum pertinentiis, the manor will pass, but not otherwise. In the case under consideration, the words "excepting and always reserved all royalties" may have the effect of creating an exception; and the reason for holding their legal effect to be that of creating a grant by the grantee of the estate fails. But passing this by, there is another reason why the construction contended for by the defendant ought not to be adopted. It is not enough for the defendant to make out a possible intent favourable to his view: he must shew with a reasonable certainty that the intention is such as he suggests. In the case of Wick

B. Brown died in February, 1846, possessed of considerable personal property, a widower, leaving six daughters, his only children. In April, 1833, he made a will, the principal dispositions of which were to reserve a sum of 2000l. to each of his three then unmarried daughters, the deceased having, on the marriages of each of his other three daughters, given to each of them a similar sum; and to divide the residue of his property among five of his said daughters, the sixth having been otherwise provided for. In December, 1835, E. Brown, one of the unmarried daughters, intermarried with P. M., and the deceased then advanced to, or settled upon, her the sum of 20007.; and, on the 25th January, 1836, made a codicil to his said will, whereby he revoked the legacy of 2000l. thereby given to the said E. Brown; and, on the 14th July, 1837, he executed a new will, placing the said E. Brown, then E. M., on the same footing as her other married sisters in respect to her interest in the bulk of his property, and leaving his remaining two unmarried daughters provided for as in the former will of 1833, which was not forthcoming, and which there was reason to believe was destroyed when the will of 1837 was executed. This last will was placed at the deceased's bankers', and there remained till after his death. After the death of the wife of the deceased in 1843, he gave his solicitor instructions to prepare a codicil to his will, then stated by him to be at his bankers'; but the codicil of January, 1836, was given to the solicitor in the presence and by the desire of the deceased, as containing the date of the said will; and accordingly in this last codicil, which was executed on the 28th October, 1843, it was stated to be a further codicil to the will bearing date the 29th April, 1833, instead of a codicil to the will bearing date the 14th July, 1837.

Addams moved the Court to decree probate of the will bearing date the 14th July, 1837, and the codicil bearing date the 28th October, 1843, to be granted to the executors named in the said codicil.

This motion was rejected, and on a subsequent day the Court was moved to make the same grant on the