account between Core and Chambers and the Plaintiffs, and with the collateral securities given by Core and Chambers, which he, the surety, might, if it became necessary, call to his aid and indemnity; and his attention must have been called to the recitals in the deed by the circumstance of the memorandum indorsed on the note, which could be placed there for no other purpose than to connect the note with the transaction stated in the deed. Then, as it appears to us that the representation as to the repayment of the debt due from Coxe, and the amount of the new loan to Coxe and Chambers, was untrue, and that such misrepresentation related to a fact material to the surety's interest, we think the promissory note is thereby void. And such being our opinion on this point, it becomes unnecessary to discuss the second objection which has been urged, as to the misrepresentation in the recitals of the deed, of the then existing state and value of Coxe's policy; on which point, however, if it had been necessary, we should have been ready to declare our opinion. We think, therefore, a nonsuit should be entered. 1838. STONE V. COMPTON. 1838. REGULA GENERALIS. WHEREAS it is provided by the act of 1 & 2 Vict. c. 45. s. 3., that, after the 1st of November 1838, any person entitled to be admitted an attorney of any of the superior Courts of Common law at Westminster shall, after being sworn in and admitted as an attorney of any one of the said Courts, be entitled to practice in any other of the said Courts, upon signing the roll of such Court, and not otherwise, in like manner as if he had been sworn in and admitted an attorney of such Court; provided that no additional fee besides those payable under an act of 1 Vict. c. 56. shall be demanded or paid; and that the fees payable for such admissions shall be apportioned in such manner as the Judges of the said Courts, or any eight of them, shall, by any rule or order made in term or vacation, direct and appoint; We therefore direct and appoint that the fees payable by virtue of the said last-mentioned act for the Judge's fiat be received in the first instance by the clerk of the Judge granting the fiat, and paid over by him to the clerk of the Chief Justice or Chief Baron of the Court, as the case may be; and the day after each term, all the fees so received shall be divided into fifteen portions, one of which shall be paid to the clerk or clerks of each Judge; and further, that the fees payable by virtue of the said act to the ushers, shall be received in the first instance by one of the ushers of the Court in which the admission shall take place, and shall, on the day after each term, be divided into three equal portions, one of which shall be paid to the ushers of each Court. [Signed by all the Judges except BOLLAND B.] END OF MICHAELMAS TERM. 1838. THIS DAVIES v. Lowndes. Nov. 28, 29, 30. Dec. 1. 1. S. seised of lands purchased by and by his to his heir at rected ad HIS was a writ of right, brought to recover certain lands in Buckinghamshire, which the demandant claimed as heir general, the tenant, as devisee of Tho- himself, by mas James Selby, who being seised of lands purchased his father, by himself, by his father, and by his grandfather, de- grandfather, vised them to his right and lawful heir at law; (for devised them the better finding out of whom, he directed advertise- law, (for the ments to be published immediately after his decease, finding out of in some of the public papers;) to hold to his heir whom he diat law, in fee, subject to the payment of debts and vertisements legacies within twelve months after the testator's decease: but should it so happen that no heir was found, then the testator thereby constituted and appointed William Lowndes, Esq., his lawful heir, on condition he changed his name to Selby. The legacies were bequeathed to two daughters of the testator's first cousin on the side of his mother, and to three grand-daughters and co-heiresses of the brother of his father's mother. The testator's great grandfather was unknown. The side of his testator died in 1772. to be pub- cousin on the mother, and to the granddaughters and co-heiresses of the brother of his father's mother; and if no heir was found, to L., on condition he changed his name to S.: testator's great grandfather was unknown: Held, that the heir qualified to take need not necessarily be of the blood of the testator, and that he might sue within sixty years. 2. L. having taken possession of the property, claiming it as his own, twelve years after testator's death; having adopted the name of S.; and having levied a fine with proclamations in the name of S., Held, that such fine was a bar to a writ of right brought by an alleged heir of S., and need not be specially pleaded. 3. Held, also, that a pedigree which purported to have been compiled from monumental inscriptions, family records, and history, was not admissible in evidence. 4. The heir on the part of the great grandfather has a prior claim to the heir on the part of the maternal grandfather. 1838. DAVIES บ. LOWNDES. After a verdict for the tenant in April 1835, the Court of Exchequer Chamber, having, upon a bill of exceptions, ordered a venire de novo (a), the cause was now tried at bar a second time, and lasted four days. Talfourd Serjt., Sir W. W. Follett, and E. V. Williams, for the demandant. The Attorney General, Wilde Serjt., Kelly, R. V. Richards, and Gray for the tenant. For the tenant it was contended as before,-1. that the demandant's claim was too late: as the legatees were to be paid within a twelvemonth, the testator must have intended that the devisee should take if an heir was not found within that time; at all events the demandant should have claimed within a reasonable time, and not have delayed, as she had done, for nearly sixty years. 2. That the heir on the part of the testator's maternal grandfather had a better title than the demandant, who was descended from the testator's great grandfather. 3. That by his right heir the testator meant an heir of the blood of the Selbys: and, 4. that a fine with proclamations levied by the devisee, in Trinity term 1784, was a bar to all claims. After the will had been read, and the tenant had been shewn to be the heir of William Lowndes the devisee, who died in 1813, it was proved, That from 1774 to 1781 the devisee had held courts, as lord of the manor in which the lands lay, in the name of William Lowndes; that no court was holden from 1781 to 1783; in November 1783 a court was holden in the name of William Lowndes Selby; and that from 1784 to the devisee's death courts were holden in the name of William Selby. (a) See the will and proceedings at length, 1 New Cases, 597. and 4 New Cases, 478. 711. Then, decrees in Chancery were put in of April 1779 and March 1783, upon bills to which neither the demandant nor any person through whom she claimed was a party; and by the latter decree the Court declared that the lands in question were to be considered as belonging to the devisee, and ordered that he should be let into possession thereof, and the title deeds be delivered to him, and that the rents and profits which he had paid into the Bank as receiver should be transferred to him. (The counsel for the Demandant objected to the reception of these decrees, as res inter alios gesta: but the Court admitted them, not as binding on the demandant, but as shewing what had been done under the will.) It was then proved that, in April 1783, there had been rejoicings at Whaddon Hall, the devisee's residence, on occasion of his succeeding to the property. There was a procession of his tenants and tradespeople, fiddling, dancing, ribbons, a May-pole, and some feasting. In April 1784, the devisee executed in the name of William Selby, pursuant to a decree of the Court of Chancery, a mortgage deed of a portion of the lands, to raise money for paying the legacies bequeathed by the testator. The next evidence offered on the part of the tenant was a fine levied with proclamations by the devisee, in the name of William Selby, in Trinity term 1784. The demandant's counsel objected to this evidence, on the ground, 1. That, in order to render it admissible, the fine should have been specially pleaded; 2. That it was not levied in the name by which the conusor was known; and, 3. That he had no sufficient estate of freehold to levy a fine. 1. When the mise is joined on the mere right, the tenant asserts that he has the better right: but the 1838. DAVIES V. LOWNDES. |