Gavelkind, 120, n. (x) 123, Dubber v. Trollope, (a) Lewis *v. Pux *806] ley, 16 M. & W. 733,† Doe d. Gallini v. Gallini, 5 B. & Ad. 621 (E. C. L. R. vol. 27), 3 Ad. & E. 340 (E. C. L. R. vol. 30), Ellicombe v. Gompertz, 3 Mylne & C. 127, 152, Stanley v. Lennard, 1 Eden, 87, Tarbuck v. Tarbuck, 4 Law J., N. S., Ch. 129,(6) Morse v. Lord Ormonde, 1 Russ. 382, Malcolm v. Taylor, 2 Russ. & M. 416, 421, Hayes on Limitations to Heirs in Tail, 43, 2 Jarman on Wills (1st edit.), 398, Wight v. Leigh, 15 Ves. 564, Attorney-General v. Sutton, 1 P. Wms. 754, Langley v. Baldwin, 1 Eq. Ca. Abr. 185, pl. 28,(e) Parr v. Swindels, 4 Russ. 283, Doe d. Bean v. Halley, 8 T. R. 5, Longhead v. Phelps, 2 W. Bla. 704, Proctor v. The Bishop of Bath and Wells, 2 H. Bla. 358, Minter v. Wraith, 13 Simons, 52, Machell v. Weeding, 8 Simons, 4, Doe d. Barnard v. Reason, (d) 1 Inst. § 31, Co. Litt. 22, and Fearne's Cont. Rem. 10th edit. 252. Willcock, who appeared for the heirs in gavelkind, objected to be heard before Malins, who appeared for Robert Phillips Dearden Monypenny, contending that, inasmuch as all the parties were arrayed against his clients, he ought to have an opportunity of answering all the arguments that could be urged against them. Malins submitted, that, as his client was in possession, he was entitled first to hear upon what grounds it was sought to dispossess him. COLTMAN, J.-Mr. Hodgson, Mr. Hall, and Mr. Malins are all equally interested in opposing the claim of the heirs-at-law. The proper course, therefore, will be, for Mr. Malins to answer the arguments of Mr. Hodgson and Mr. Hall, and then to argue against Mr. Willcock's clients; and for Mr. Malins to reply to Mr. Willcock, and Mr. Hodgson to reply generally. *807] Malins (with whom was Faber), for Robert Phillips Dearden Monypenny, contended that the testator's brother Phillips Monypenny took an estate-tail in the Maytham Hall estate, and, by the recovery suffered by him in Michaelmas Term, 1827, acquired an absolute estate in feesimple therein. He cited and commented upon the following authori ties, Stanley v. Lennard, 1 Eden, 87, Seaward v. Willock, 5 East, 198, Loddington v. Kime, 1 Salk. 224, 1 Lord Raym. 203, 3 Lev. 431, Carter v. Barnardiston, 3 Bro. P. C. 64, Doe d. Cock v. Cooper, 1 East, 229, Doe d. Wright v. Jesson, 5 M. & Selw. 95, Doe d. Blandford v. Applin, 4 T. R. 82, 2 Jarman on Wills (1st edit.), 280-284, Jesson v. Wright, 2 Bligh, 1, Doe d. Bosnall v. Harvey, 4 B. & C. 610 (E. C. L. R. vol. 10), 7 D. & R. 78 (E. C. L. R. vol. 16), Doe d. Atkinson v. Featherstone, 1 B. & Ad. 944 (E. C. L. R. vol. 20), Fetherston v. Fetherston, 3 Clark & Fin. 67, 9 Bligh, N. S. 237, Doe d. Tremewen (a) Cited in Minshull v. Minshull, 1 Atk. 412. (c) Cited 1 P. Wms. 759. (d) Cited in Doe d. Bourne v. Holmes, 3 Wils. 244 v. Permewen, 11 Ad. & E. 431 (E. C. L. R. vol. 39), 3 P. & D. 303, Trash v. Wood, 4 Mylne & C. 324, Campbell v. Harding, 2 Russ. & M. 390, Doe d. Cotton v. Stenlake, 12 East, 515, Doe d. Bean v. Halley, 8 T. R. 5, Langley v. Baldwin, 1 Eq. Ca. Abr. 185, pl. 29, AttorneyGeneral v. Sutton, 1 P. Wms. 754, Humberston v. Humberston, 1 P. Wms. 332, Wight v. Leigh, 15 Ves. 564, Doe d. Gallini v. Gallini, 5 B. & Ad. 621 (E. C. L. R. vol. 27), 3 Ad. & E. 340, Parr v. Swindels, 4 Russ. 283, Bamfield v. Popham, 1 P. Wms. 54, Salk. 236, 2 Vern. 427, 449, Blackborn v. Edgley, 1 P. Wms. 605, Doe d. Liversage v. Vaughan, 5 B. & Ald. 464 (E. C. L. R. vol. 7), 1 D. & R. 52 (E. C. L. R. vol. 16), *Foster v. The Earl of Romney, 11 East, 594, Denn d. Briddon v. Page, 11 East, 603, n., Hay v. The Earl of [*808 Coventry, 3 T. R. 83, Ellicombe v. Gompertz, 3 Mylne & Cr. 127, Trickey v. Trickey, 3 Mylne & K. 560, Morse v. Lord Ormonde, 1 Russ. 382, Driver d. Edgar v. Edgar, Cowp. 379, Fearne's Cont. R. 10th edit. 204, 205, Page v. Hayward, 2 Salk. 570, Fountain v. Gooch, 4 Bac. Abr. 262, Legacies and Devises (D), Robinson v. Robinson, 11 Beavan, 371, Doe d. Jones v. Davies, 4 B. & Ad. 43 (E. C. L. R. vol. 24), Chorlton v. Craven. (a) [MAULE, J., referred to Lord Dungannon v. Smith, 12 Clark & Fin. 546, 1 Drury & W. 509, and Doe d. Woodall . Woodall, 3 C. B. 349 (E. C. L. R. vol. 54).] Coote, for Susannah Moneypenny, who claimed under the settlement of the 10th of June, 1835, upon the same grounds upon which Robert Phillips Dearden Monypenny claimed his life estate, contended that Phillips Monypenny took an estate in tail general,-citing Doe d. Burrin v. Charlton, 1 M. & G. 429 (E. C. L. R. vol. 39), 1 Scott, N. R. 290, and Reece v. Steel, 2 Simons, 233. Willcock, for the heirs in gavelkind, contended that Phillips Monypenny took an estate for life only, with remainder to his eldest son for life; and that all the subsequent remainders were void for remoteness,— so that, on the decease of Phillips Monypenny in 1841, without issue, the co-heirs of the testator became entitled. He cited and observed upon the following authorities,-Brudenell v. Elwes, 7 Ves. 390, Butler's note to Fearne's Cont. R. 10th edit. 204, Chapman d. Oliver *v. Brown, 3 Burr. 1626, Wight v. Leigh, 15 Ves. 564, Doe d. [*809 Gallini . Gallini, 5 B. & Ad. 621 (E. C. L. R. vol. 27), 3 Ad. & E. 340 (E. C. L. R. vol. 30), Doe d. Burrin v. Charlton, 1 M. & G. 429 (E. C. L. R. vol. 39), 1 Scott, N. R. 290, Nicholl v. Nicholl, 2 W. Bla. 1159, Langston v. Langston, 2 Clark & Fin. 194, Pitt v. Jackson, 2 Bro. C. C. 51, Smith v. Lord Camelford, 2 Ves. jun. 698, 711, Brudenell v. Elwes, 1 East, 450, Stackpoole v. Stackpoole, 4 Drury & W. 320, Somerville v. Lethbridge, 6 T. R. 213, Seaward v. Willock, 5 East, 198, Vanderplank v. King, 3 Hare, 1, 16, Jesson v. Wright, 2 Bligh, 1, Fetherston v. Fetherston, 3 Clark & Fin. 67, 9 Bligh, N. S. (a) Cited in Mellish v. Mellish, 2 B. & C. 524 (E. C. L. R. vol. 9). 237, Colson v. Colson, 2 Stra. 1125, Doe d. Blandford v. Applin, 4 T. R. 82, Blackborn v. Edgley, 1 P. Wms. 605, Reece v. Steel, 2 Simons, 233, and Chorlton v. Craven. (a) Bagshawe, for a person who claimed under one of the co-heirs in gavelkind, observed upon Blackborn v. Edgley, 1 P. Wms. 605, and Vanderplank v. King, 3 Hare, 1, and cited Beard v. Wescott, 5 Taunt. 393 (E. C. L. R. vol. 1), 5 B. & Ald. 801 (E. C. L. R. vol. 7). Malins, in reply to Willcock and Bagshawe, referred to Doe d. Comberbach v. Perryn, 3 T. R. 484, Lord Dungannon v. Smith, 12 Clark & Fin. 546, 1 Drury & W. 509, Mortimer v. West, 2 Simons, 274, and Brooke v. Turner, 2 N. C. 422 (E. C. L. R. vol. 29), 2 Scott, 611, (E. C. L. R. vol. 30). *810] * Willcock observed upon Mortimer v. West and Brooke v. Turner. Hodgson replied generally. The following certificate was afterwards sent to Vice-Chancellor WIGRAM: "This case has been argued before us by counsel: we have considered it, and are of opinion as follows: "1. We are of opinion that Phillips Monypenny took an estate for life, in remainder after the life-estate of the widow, Mary Monypenny. 2. We think that Thomas Gybbon Monypenny took an estate for life in remainder after the life-estate of Phillips Monypenny, contingent on Phillips Monypenny not leaving any issue at his decease, and determinable on Thomas Gybbon Monypenny's becoming entitled to the estates of Elizabeth Joddrell; and also a remainder in tail general after the estate-tail of Robert Thomas Gybbon Gybbon Monypenny. 3. We think that Robert Thomas Gybbon Gybbon Monypenny took a contingent remainder in tail male after the determination of the life-estate of his father. "4. We think that Phillips Monypenny acquired no estate or interest under the recovery. "5. We think that Susannah Monypenny took no estate or interest under the said deed. 6. We think the co-heirs in gavelkind took a remainder in fee after the several estates above mentioned. Jan. 12, 1850. "W. H. MAULE. "C. CRESSWELL. (a) Cited in Mellish v. Mellish, 2 B. & C. 524 (E. C. L. R. vol. 9). (b) For the ultimate result of the case in equity, see 7 Hare, 568 and (on appeal) 2 De Gex. M'N. & G. 145. And see Doe d. Evers v. Ward, 18 Q. B. 197 (E. C. L. R. vol. 83), Doe d. Evers v. Challis, 18 Q. B. 224, 231. *SERRELL v. THE DERBYSHIRE, STAFFORDSHIRE, and WORCESTERSHIRE JUNCTION RAILWAY COMPANY. June 11. [*811 A.,B., and C., three directors of a railway company, in fraud of the company, drew a check upon the company's bankers in favour of one of their body. This check, though bearing the stamp usually impressed upon documents issued by the company, and countersigned by the secretary, did not upon the face of it purport to be drawn on behalf of the company, nor did the drawers describe themselves therein as directors :-Held, that the company were not liable for the amount to a bonâ fide holder for value. Whether one who takes an overdue check takes it subject to its equities, as in the case of an overdue bill of exchange-Quære. THIS was an action of assumpsit. The first count of the declaration was on a banker's check alleged to have been drawn by the defendants on Messrs. Hankey, payable to Daniel Turton Johnson, for the sum of 4201., and by him transferred to the plaintiff, who sued as lawful bearer of the same. There was also a count upon an account stated. The defendants pleaded, to the first count,-first, that they did not make the check, modo et formá,—secondly, that the check was not duly presented for payment,-thirdly, that the defendants had not due notice of the non-payment of the check,-fourthly, that the check was delivered to Daniel Turton Johnson by the directors of the Derbyshire, Staffordshire, and Worcestershire Junction Railway Company, for remuneration to him as a director of the said company, but that no determination as to such remuneration was ever come to by the said company at a general meeting thereof, and that the plaintiff took the check with notice of these facts,-fifthly, a similar plea to the fourth, but, instead of alleging that the plaintiff took the check with notice, alleging that he took it after the expiration of a reasonable time for presenting it for payment, sixthly, a similar plea to the fourth, but, instead of alleging that the plaintiff took the check *with notice, alleging that he [*812 was the bearer thereof without value,-seventhly, a similar plea to the fourth, but, instead of alleging that the plaintiff took the check with notice, alleging that he took it on certain terms and conditions which he had violated; and, to the last count,-eighthly, that they did not promise modo et formâ. The plaintiff joined issue on the first, second, third, and eighth pleas, and replied de injuria to the fourth, fifth, sixth, and seventh. The cause came on to be tried before WILDE, C. J., at the sittings in London after Michaelmas Term, 1848, when a verdict was found for the plaintiff for the amount of the check and interest, subject to th opinion of the court upon the following case,-power being reserved to the court to draw any inference or conclusion from the evidence which a jury might have drawn at Nisi Prius, and to consider the questions as to the admissibility of evidence as reserved at the trial: The following is a fac simile of the check, and of the stamp or mark thereon impressed; and it was agreed between the parties that the original check should, if required, be produced by the plaintiff to the court. The check was not under the common seal of the company. "Messrs. Hankey, "London, August 13, 1847. "Pay Daniel Turton Johnson, Esq., or bearer, four hundred and twenty pounds. "4201. 08. Od. "J. M. MATHEW, "E. J. SPIERS. "R. S. MACKENZIE, Sec." *813] *The date stamp impressed upon the check was put upon all the documents of the company. Upon the trial, on the part of the plaintiff, the act of parliament establishing the company was produced, and the same was to be considered as forming part of the case, and was to be referred to by either side upon the argument. The act received the Royal assent on the 2d July, 1847. The company had been in existence for the purpose of obtaining the act for about two years previously; and the parties whose names appear as the drawers of the check, as well as Daniel Turton Johnson, the payee, had been directors of the company during the whole of that time, and were such directors when the check was made. The act nominated five persons as the first five directors of the company, viz., Sir John Foster Fitzgerald, Daniel Turton Johnson, William King, John Mee Mathew, and Edmund John Spiers, and incorporates with it the Companies Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 16. The check mentioned in the declaration was produced; and, after the evidence hereafter mentioned, after proof of the handwriting of the three persons whose names were subscribed as drawers, and of Mackenzie, the secretary of the company, was read. The evidence of the circumstances under which the check was drawn, was to the following effect: The three persons by whom the said check is drawn, were three of the directors of the said company, as before mentioned. The first general meeting of the proprietors was held on the 29th of December, 1847. Upon the 13th of August, 1847, a meeting took place of the five directors before mentioned, viz., Sir John Foster Fitzgerald, Daniel Turton Johnson, William King, John Mee Mathew, and Edmund John |