had the benefit of the price, so
his executrix of the right to recover this amount
from the deft. Her account is, that at the time
when the deed was executed, the deft. gave her
husband a cheque; and no doubt that cheque was
given in the presence of Mr. Garrett, and remained in
the custody of the testator Duckels till the beginning of
April. In the beginning of April, according to the con-
curring testimony of all the witnesses on this subject, the
cheque got back into the possession of the deft., and
was, he says, by him burnt or destroyed. In order to
account for that, another transaction which occupies
a large portion of the pleadings and evidence, is
brought forward by the deft. as showing that he
rightfully became possessed of the cheque, in pay-
ment of a sum of money which the testator Duckels
was bound to pay to him in respect of a joint
transaction in a building speculation. In order to
establish that part of the deft.'s case, he must prove
that there was a transaction so far completed on a
binding contract as that he has a right to claim the
benefit of that sum of 2001. as against the claim of
the plt. as executrix. Looking at the whole evidence
as to the building speculation, it is clear that the
testator did make a bargain with Snooke as the agent
of Martin, for a lease of a portion of the building
ground, and that he took that as a lease for himself.
It also appears in evidence that the testator did cer-
tainly contemplate entering into a building specula-
tion for his own benefit, and as one in which in
some way the plt. should be concerned. The plt. says
that what she heard was, that there were to be two
building leases, that the testator was to build two
houses, and the deft. to build two houses, but that
afterwards they agreed to take the whole in only
one lease.
What is certain is, that having con-
tracted in the month of February, in consequence
of a previous interview in January with Snooke,
for the granting of this building lease, the testator,
the 24th March, accompanied by the deft.
Nothard, went to Snooke and told him that the lease
from Martin must be a lease to the deft. and not to
him. That was on the 24th March. Accordingly, on
the 31st March, an instrument was executed by which,
clearly and absolutely, without being fettered by any
trust or contract that has been proved at all, the deft.
became possessed of the whole and entire interest under
that building lease. It is certainly in evidence that
the testator, just towards the end of his life, interfered
actively with the building operations, after he had
ceased, according to the documentary evidence, to have
any interest in the property at all. It also appears
that he made a bargain with the workmen for the
construction of the works. That, however, would give
him no beneficial interest in the lease. He never
acquired any interest enforceable by himself or trans-
ferable to his descendants in the building lease, or in
the operations conducted under it. No claim has been
made in respect of the sums advanced in cash by the
testator, and the deft. suggests that whatever cash was
paid by the testator in respect of wages to workmen,
was cash supplied by the deft. Very likely it was.
For, as the testator had no interest whatever in the
property, whatever might have done by the testator,
in the way of spending his own time or money,
would be a perfectly gratuitous act; because the
deft. had not given him the means of recovering any
money so spent. Therefore, it probably was the money
of the deft. But, as to the cheque, the statement in
the deft.'s answer is, that the cheque was given to
him as cash, on behalf of the testator, in respect of
the testator's share of the expense in making this
building. If so, it is certain that the testator's exe-
cutrix has no power of enforcing payment of the con-
sideration money. But it is said, that it is vain
now to look for a consideration; because what the

on

[V.C. S.

as to deprive deft. alleges is, that the interest which the testator
Duckels was to have was that, when the buildings
were completed, he was to enjoy for his life the rents
of all the houses to be built. Now, if that had been
proved to have been the agreement, it would have
turned the balance of evidence in favour of the deft.
But there is no evidence at all as to the existence of
that contract. The transaction is one into which this
deft. should have been extremely cautious in entering
with a person who is proved to have stood to him, as
the learned counsel described it, in loco parentis.
Indeed, the deft., in his answer, says, that so greatly
was he the object of the testator's bounty, that
the testator told him he intended, after his wife's
death, to leave him the whole of his property.
If that was the relation in which the deft.
stood towards the testator, he should have been
cautious that in all his dealings by way of contract
with this old man, acting under generous impulses and
generous impressions, some record should have been
preserved, and that there should not have been the
unfortunate circumstance of this long litigation in re-
spect of this transaction. I must consider that the
litigation has been occasioned by the conduct of this
deft., for although there is no ground for setting aside
the deed by which the reversionary interest was sold for
2001., yet the transaction was of such a kind, and was
conducted under such circumstances, as to be clearly of
a questionable character; and though the deft. re-
mains in possession, he can only remain in possession
by paying for it. There is a story about deft.'s
getting the cheque and burning it, and then consider-
ing it as money repaid towards building the houses;
that the testator purchased materials and employed
builders, and that out of the said sum of
2001. so placed in deft.'s hands, he from time-
to time paid, by testator's direction, for the ma-
terials and the wages of the builders; that is to
say, he calls getting back his own cheque, and
putting it in the fire, the payment of a sum of
money into his hands by the testator. There
are other passages in the answer in which the matter
is spoken of in the same way: "I refused to repay to
her, the plt., the said sum of 2004. so paid by her
said husband to me as aforesaid." The transaction
was not of a kind that it can be fairly or properly
spoken of in that way. No doubt, in a sense, if there
were evidence of an agreement it might be said that
getting back the money in this way was receiving it by
way of advance. But the deft. himself has preserved
no evidence of such a transaction. Upon the whole,
therefore, my opinion is, that I must consider the
deft. still indebted in this sum of 2001. from the date
when he took back the cheques. There will be a
decree that the deft. do, within ten days after the
date of the decree, pay to the plt. 2007., with interest
at 4 per cent. from the 31st March 1859, the
amount of such interest to be verified by affidavit.
The plt.'s costs must be taxed and paid by the deft.
The deft. must pay the costs on this ground. In
ordinary cases when fraud is charged, unless the
fraud is established, the person who makes charges of
fraud (which are odious), and fails to establish them,
pays the costs. But in this case the detail and
history of the transaction is such that, although the
bill does charge fraud, it charges it in a circumstan-
tial manner as to the nature of the transaction and
the age and eccentric habits of the testator. The true
view of the case is, to consider that the deft. in the
relation in which he states he stood to this eccentric
old man has involved the estate of his benefactor in
litigation by means of this story of there having been
a joint building speculation, and by allegations of an
agreement which he cannot prove. He has made out
a case so liable to suspicion that, when I look accurately
at the way in which fraud is charged in the bill, as it

V.C. S.]

STUBBIN V. FISHER-SLADEN v. SLADEN.

is stated at the time of the sale, and find that the case of the deft. entirely fails as to the building transaction, which is the main object of the suit, I cannot relieve him from payment of the costs. Another circumstance is, that after the bill was filed, the solicitor of the plt. with great discretion asked if the deft. would consent to put an end to the litigation on terms of paying the 2001. and the costs of the suit. This was met by defiance of the strongest kind on the part of the deft.'s solicitor, in a tone which made the prosecution of the suit a matter of necessity. Therefore I cannot relieve the deft. from the obligation of paying the costs of the suit.

|

[V.C. W.

There are grave doubts whether the C. L. P. A. applies to the Court of Ch. at all. The note, therefore, cannot be received as evidence of contract.

Cole, Q. C. and Rigby then proceeded to contend that there was no evidence of the alleged loan, and that, as there had been no payment of interest by Fisher since 1853, the claim was barred by statute.

The VICE-CHANCELLOR.-The simple question is, whether the plt. has established the debt. An objection has been taken to the production of the notes which appears to me to be well founded. On the remaining evidence, however, I think the plt. has established his case; and there must be the usual administration de

cree.

V. C. WOOD'S COURT.
Reported by W. H. BENNET, Esq., Barrister-at-Law.
Tuesday, June 3.
SLADEN V. SLADEN.

April 24.-From the decision of his Honour a petition of appeal was presented by the deft. to the Lord Chancellor, and on the cause coming on to be heard on this date, the deft. consenting to pay to the plt. one-half of the net or clear rents received by him in respect of the four houses, and to pay to the plt. one-half of the said rents to accrue due during her life which should be received by the deft., the plt. with- Gavelkind-Will-Construction · drawing all imputations against the deft., and the deft. not asking for costs, it was ordered that the decree | A. by his will dated in Oct. 1822, devised lands of gavel

should be varied as follows: It was declared that the plt. was entitled to one-half of the net or clear rents which had been received by the deft. and of the rents to accrue due during her life, and to be received by him; and it was ordered that the deft., on or before the 24th May 1862, pay to the plt. or her representatives onehalf of such rents already received, and one-half of the rents to accrue due when received by him. Depositmoney and documents to be returned to the deft.; with liberty to apply.

Solicitors, T. J. Foord; Wellborne.

Wednesday, April 16.

STUBBIN V. FISHER.

c. 106.

3 & 4 Will. 4,

kind tenure, and certain leaseholds to his daughter for life, with remainder to her children in the usual terms. At the death of the daughter, and on default of such children of her body, to the use of the right heirs of the testator for ever. The testator left two sons surviving him : Held, that the gift being a mixed gift, the testator's eldest son and heir-at-law, and not the two as coheirs in gavelkind, took under the devise.

The bill in this case was filed to obtain the decision of the court upon the construction of the will of a testator under the following circumstances:

Joseph Sladen by his will, dated (before the Act of 3 & 4 Will. 4, c. 106, viz.) the 14th Oct. 1822, devised to his daughter Mary Sladen his newly

Practice-Stamping documents-Promissory notes-erected house in Dover-street, Folkestone, and also all

C. L. P. A.

An insufficiently stamped promissory note cannot be received in evidence; nor can it be admitted by tendering to the registrar the deficient amount of duty, together with 11. as penalty, under the 28th section of the 17 & 18 Vict. c. 125.

that freehold messuage in Cow-street, Folkestone, to hold the same unto his said daughter Mary Sladen and her assignees for her life, she keeping the same in tenantable repair; after her death he devised the two last-mentioned tenements and hereditaments unto all and every the child of said Mary Sladen to be equally This was a bill filed by a creditor of a person named divided between them as tenants in common, and not Fisher for the administration to his estate. The object as joint tenants, and the heirs of their respective of the suit was to recover two sums of 901. and 40%. | bodies issuing, and in case any of them should happen which the plt., by his affidavit, deposed he had ad- to die without issue, then as to the part or share, parts vanced to Fisher, on the security of two promissory or shares of such child or children so dying or whose notes, one signed by Fisher and the other by his son-issue should fail, to the use of the survivors or survivor in-law.

In support of the claim the notes were tendered in evidence.

and others and other of them and the heirs of their respective bodies; and if there should be failure of issue of all the said children but one, or if there should be but one child, then to the use of such remaining or only child and the heirs of his or her bodies issuing, and for default of such issue to the use of his own

The will also contained a bequest of leasehold premises at Chartham, in the said county of Kent, the ultimate limitation as to which, after failure of issue male and female in the legatees, was "unto the right heirs of me, Joseph Sladen, for and during all the then residue and remainder of my estate and interest therein."

Cole, Q.C. and Rigby, for the deft., objected to the reception of the documents for want of a proper stamp. Both were stamped with inadequate receipt stamps. Malins, Q. C. and Geo. Simpson, for the plt., sub-right heirs for ever." mitted that the Act which was in force at the date of the documents was the 55 Geo. 3, c. 184, which gave no authority to restamp promissory notes; but, by the C. L. P. A. 1854, c. 28, it is enacted that "upon the production of any document as evidence at the trial of any cause, it shall be the duty of the officer of the court, whose duty it is to read such document, to call .the attention of the judge to any omission or insufficiency of the stamp; and the document, if unstamped, or not sufficiently stamped, shall not be received in evidence until the whole, or (as the case may be) the deficiency of the stamp duty and the penalty required by statute, together with the additional penalty of 14., shall have been paid." In this case the additional stamp duty and penalty amounted to 21. 88., which sum the solicitor now tendered to the registrar.

The house in Dover-street was leasehold for a long term of years. The house in Cow-street was freehold. Mary Sladen the daughter died in Nov. 1861, without ever having had any issue.

At the death of the testator he had two sons surviving him-Joseph Sladen the younger, his eldest son and heir-at-law, and John Baker Sladen. According to the custom of gavelkind these two sons were the joint heirs of their father.

The VICE-CHANCELLOR.-I cannot admit the docu- The suit was instituted by the plts. the heirs in sments, nor can the registrar receive the amount tendered. I gavelkind and residuary legatees of Joseph Sladen the

THE LAW REPORTER.

V.C. W.]
younger (who had died intestate as to real estate),
claiming under the ultimate limitation to the right
heir of the original testator (his father) to be entitled
to the leasehold messuage for the unexpired term
therein expectant upon the death of the daughter Mary
Sladen without issue, and also to the freehold messuage
in remainder in fee-simple expectant on such death
and failure of issue as aforesaid.

Re THE NATIONAL ALLIANCE ASSURANCE COMPANY. ASHWORTH'S CASE.

The defts., who claimed under the second son, Mr. John Baker Sladen, set up a claim that inasmuch as Joseph Sladen the younger and J. B. Sladen were heirs after the custom of gavelkind of the original testator, they as such became entitled upon the death of the daughter Mary Sladen without issue to the freehold and leasehold messuages, and that they (the defts.) were now entitled in possession as tenants in common with the plts. to one moiety of the freehold and leasehold messuages and hereditaments.

[V.C. W. [Vol. 7.

the winding-up A. claimed to set off the amount of
the debt against the calls. A compromise in cham-
bers was come to, by which A. in consideration of
paying 100l. was released from all liabilities in
respect of contribution:

Held, that B. and the others, although they had given
notice of the assignment of the debt, but not having
sued for it before the calls were made, were bound
by the compromise, and could not claim the amount
of the debt against the assets of the company.
This was a summons in chambers adjourned into

court.

worth and three others, seeking to establish a claim of The summons had been taken out by Messrs. Ash100l. against the assets of the company, its affairs being wound-up under an order of the court.

The deed of settlement of the court was executed Hobhouse, for the plts., contended that by the terms registered on the 25th Dec. Mr. G. F. Fellows was a on the 20th Dec. 1855, and the company completely of the devise, which was to the testator's right heirs, subscriber for 100 shares, and at the same time apthe descent in the gavelkind lands became broken, and pointed one of the directors. that such right heirs took: (Couden v. Clarke, Hob. director in May 1858, a sum of 100%. being due to him 29.) In support of this doctrine he also cited Roberts for fees for attendance, &c. This debt he on the 31st He ceased to be a v. Dixwell, 1 Atk. 606; Co. Litt. 10 a, and Mr. Har- Dec. 1858 assigned to Mr. Ashworth and three other grave's notes thereon; Thorpe v. Owen, 2 Sm. & gentlemen who were also directors of the company, Giff. 90; Bear's case, 1 Leon. 112; Robinson on and notice thereof was formally given to the company. Gavelkind, 3rd edit. p. 156; Cro. Eliz. 431, 833. Chas. Hall and Casson, for the defts., contended that of the company had been completely exhausted and When this assignment was made the paid-up capital the son J. B. Sladen, at the death of the daughter large liabilities incurred. On the 14th and 26th Feb. without issue, became heir in gavelkind, and that the 1859 calls of 67. and 31. were made upon the sharedefts. who claimed under him were entitled in posses-holders, and on the 25th March following the comsion as tenants in common to one moiety of the free-pany was ordered to be wound-up. Mr. Fellows had hold and leasehold messuages and hereditaments. not paid up his calls. In April 1860 a compromise They cited Davis v. Kirk, v. Norwood, 7 Taunt. 364; De Beauvoir v. De chambers between the creditors' representative and Kay & J. 391; Crump was come to with the approbation of the judge in Beauvoir, 3 H. of L. Cas. 558; Loraine v. Burton, Mr. Fellows, whereby, in consideration of 100% paid 15 Ves. 365; Gascoyne v. Baker, 3 Atk. 8; Gwynne by him, he was discharged from all liabilities in respect v. Murdock, 14 Ves. 488. of his shares, he at the same time relinquishing all to Mr. Fellows for the 1007. due to him for fees. claims against the company. Credit had been given

Hobhouse in reply.

The VICE-CHANCELLOR said he must hold that the plts., as representing the right heir of the testator, were entitled to the property in question. corroboration of what was the intention of the testator, As a strong the bequest of the leaseholds at Chartham, which were limited in remainder to the testator's right heirs, might be adduced. The two descriptions of property being thus mixed up together, upon any other construction a presumption would arise that there was an intestacy as to a portion which was not to be assumed as the intention of the testator. The blending of these properties had the effect of giving an interpretation to the will which probably might not have been put upon it if the gavelkind property only had been included in the devise, which was before the Act of the 3 & 4 Will. 4, c. 106, s. 3. The decree would therefore declare that, according to the true construction of the testator's will, the testator's leasehold dwelling-house and his gavelkind lands passed to Jos. Sladen the younger, as testator's heir-at-law. Solicitors, for all parties, St. Barbe Sladen. Decree accordingly.

Re THE NATIONAL ALLIANCE ASSURANCE COMPANY.
Thursday, July 24.
ASHWORTH'S CASE.
Winding-up-Compromise-Chose in action-
Assignor and assignee.

A. having been a director of a company, a sum of
1001. became due to him for fees for attendance,
fc. He assigned this debt to B. and three others,
also directors of the company.
Notice of this assignment was given by B. and the
others to the company. The company was subse-
quently ordered to be wound-up. B. and the others
had not received or sued for the debt assigned to
them. Calls were subsequently made on A., and on

Messrs. Ashworth and the other three directors debt of 100l., but it was disallowed on the ground that preferred their claim in chambers as assignees of the they, being the assignees of a chose in action, took the assignment subject to all equities attaching to it, and not having proceeded against the company in respect of this debt, the official manager was entitled to set off the amount against the calls due by Mr. Fellows as shareholder.

argument and decision.
The question was now adjourned into the court for

no right of set-off could be raised as against the claim
Dickinson, in support of the claim, contended that
which Messrs. Ashworth and the others had in respect
of the assignment of the debt of 1001. by Mr. Fellows;
that the compromise was come to in their absence,
and they were not bound thereby.

Daniel, Q.C. and Bush for the official manager.— Messrs. Ashworth and the three others were directors of the company, and as such had knowledge of the assignment, and failed to enforce payment under it. the time of their assignment. They cited Woodham v. They must be assumed to have had knowledge also that the debts of the company far exceeded the assets at The Australian Company, 8 Jur. Ñ. S. 148; Smith v. Parkes, 16 Beav. 116.

were under

principal facts of the case, said the claim could not be The VICE-CHANCELLOR, after stating shortly the allowed. The assignment was of a debt due by the company to one of the directors, who when called upon. The assignment was with knowliabilities to pay whatever was due by the company ledge by them of all its consequences, and the liability at any moment to a set-off in respect of this debt. When the assignment was made the liabilities of the company exceeded their assets. This the directors

SMURTHWAITE v. WILKINS.

must have known, and that of necessity a call would | vested in them all property, right and interest in and to have to be made. Before, however, any call was the said goods, and the defts. then ceased to have, and actually made, they had an undoubted right to have they had not at any time thereafter, any property or intesued for the debt in the name of Mr. Fellows: this rest in the said goods or the delivery thereof, and the they had not done. The time for asserting this right delivery, so far as the same took place, was to persons they had allowed to pass by, and the right of the com- other than the defts., and that defts. never promised the pany to set-off, which was then only inchoate, had plt. to pay him all or any of the said freight, and become matured. In Smith v. Parkes the M. R. had never were liable except or otherwise than as aforesaid: "At law they have no title, and can only sue in said." the name of Mr. Parkes. In equity they are assignees of a chose in action, and as such are liable to all they attach to the thing assigned as against the assignor." Being such, and the company having a right to set-off the amount of the debt due to Fellows against the amount of his calls, the claim must be disallowed, and with costs.

Indorser of bill of lading-Liability of freight-a bill of lading, to whom the property in the

COURT OF EXCHEQUER. Reported by F. BAILEY and H. LEIGH, Esqrs., Barristersat-Law.

Thursday, June 5.

AMOS AND ANOTHER v. SMITH. Statute of Limitations (3 & 4 Will. 4, c. 42)—Bond, action on against surely-Trustees and cestui que trust-Part payment and satisfaction of interestWhat amounts to-Acknowledgment in writing. The deft. in Nov. 1833 executed a joint and several bond, as a surety with one W., to secure the payment of 8161. and interest by W. to plts., the trustees, for the separate use of W.'s wife under her marriagesettlement. No money was paid on account either of principal or interest up to Nov. 1847; but W. was in the habit of letting his wife have money from time to time according to her requirements. In that month it was arranged, at the request of plts., between them and W. and his wife, that she should give the plts. a receipt every year for the interest due under her settlement, which she accordingly did from that time up to Feb. 1861, when she signed the last receipt, and which was expressed to be for "all interest due upon 8161. on bond given by Mr. J. W. and Mr.J. S.” (the deft.) “up to 1st Nov. 1860." No money ever actually passed on these occasions, it being understood between plts. and W. and his wife, that the arrangement was to be considered as an actual payment of the interest in money. No application was ever made to deft. respecting the amount due, nor did it appear that he knew of the receipts being given for interest by W.'s wife. W. became insolvent in 1861, and upon an action on the bond being brought by the trustees against the deft., the co-obligor, it was Held, that the arrangement between the plis. and W. and his wife was a real and bona fide transaction, amounting to and substantially the same thing as an actual payment of the interest by the obligors to the plis., and by the plts. to the wife their cestui que trust, and that it was sufficient, as a "part satisfaction," to keep the bond alive within the Statute of Limitations, 3 & 4 Will. 4, c. 42; and that it was not necessary that money should have actually passed from one party to the other in order to satisfy

the statute.

Bodger v. Arch, 10 Ex. 333; 24 L. J. 19, Ex. ; 24
L. T. Rep. 184, is not distinguishable.
Declaration stated that deft. by his bond became
bound to plts. in the sum of 1636% to be paid by deft.
to plts., and plts. claim 2000.

Plea, that the causes of action did not accrue within twenty years before suit.

Replications:-1. That deft. within twenty years before suit, made an acknowledgment, to wit, by part payment and satisfaction on account of interest then due on the said bond; that the debt in the declaration mentioned then remained unpaid and due to pits. 2. That deft. within twenty years, &c., made an acknowledgment in writing, signed by his agent, that the debt, &c. then remained unpaid and due to plts. Issues thereon.

At the trial before Martin, B., at the Middlesex sittings, the following facts appeared :-Plts. were trustees under the marriage-settlement of one John Woodhams and Helen his wife, and they brought this action to recover the sum of 8167., being the principal sum secured by the joint and several bond of deft. and Woodhams the husband, together with interest at 5 per cent. from 1st Nov. 1860, under the following cir

cumstances:

Previous to the marriage of Woodhams in 1830 with his wife, then Helen Amos, a sister of the plts., a settlement of her reversionary interest was executed, by which the trustees (plts.) were authorised to invest the

[Ex.

money in the public funds, and the income was to be payable to the wife during life for her separate use. In 1833 the property was reduced into possession, and consisted of 8167., which ought to have been invested, according to the terms of the settlement; but, instead thereof, plts., in pursuance of an arrangement between themselves, Mr. Woodhams and his wife, lent the money to the husband, he executing the bond in question, together with the deft. Smith, who was his surety. The date of the bond was 1st Nov. 1833. From that time till 1st Nov. 1847 no money whatever was paid to plts. by Woodhams or by deft., either on account of principal or interest, nor did plts. apply to him or deft. respecting the amount due. Woodhams was in the habit of paying his wife various sums of money according to her requirements from time to time, but no arrangement existed that they should be considered as payments on account of the principal and interest due on the bond.

In 1847 one of the plts. suggested that an arrangement ought to be made respecting the interest due, and that Mrs. Woodhams should give a receipt for the interest due under her settlement every year, which both the husband and wife acceded to, and a receipt, in the following terms, was drawn up by one of the plts., and signed by the wife, in her husband's presence:-"1st Nov. 1847. Received of Messrs. J. and D. Amos, trustees of my marriage-settlement, the sum of 2441. 168., being six years' interest on money secured for me, Helen Woodhams." It was clearly understood between the plts. and Woodhams and wife that this was to be considered as an actual payment in money for six years' interest by Woodhams to plts., and by them to the wife; and it was then arranged that a similar receipt should be given every year. This arrangement was adhered to in the following year, when a similar receipt was drawn up and signed by Mrs. Woodhams, in the presence of her brother, one of the plts. No more receipts were given till 1854, and, on the 1st Nov. in that year, the wife gave a receipt similar to the first for the six years' interest. On the 1st Nov. 1857 Mrs. Woodhams signed, and gave to the trustees, a similar receipt for three years' interest. The next receipt was given by her on the 5th Jan. 1860, and was expressed to be for "all the interest due upon 8167. at 5 per cent., on bond given by Mr. J. Woodhams and Mr. James Smith, up to Nov. 1, 1859, upon my marriage-settlement." And on the 11th Feb. 1861 the last receipt was given by her, in the same form, for a year's interest "up to the 1st Nov. 1860."

In Oct. 1861 Woodhams, the husband, executed an assignment for the benefit of his creditors, and trustees under the deed took possession and proceeded to wind-up his estate. A claim for the amount of the bond was put in by plts. The wife subsequently applied to plts., her brothers, to secure the year's interest then due to her, and this action was consequently brought against deft. Woodhams and his wife have no letters from deft., nor have they communicated with him since application was made to him for the money. It did not appear that deft. was ever made aware of the fact of receipts being given by Mrs. Woodhams to her trustees for the interest, nor did it probably come to his knowledge till after the action was brought, and he never inquired of Woodhams or his wife as to the bond, or whether the interest had been paid.

Under these circumstances plts.' counsel contended at the trial that the bond, as against deft., the co-obligor, was taken out of the statute, and they cited Bodger v. Arch, 10 Ex. 333; 24 L. T. Rep. 184; 24 L. J. 19, Ex. Martin, B. was of that opinion, and that plt. ought to recover, as he thought there could be no doubt what the transaction was. It was a pure question of law, did it amount to payment or satisfac