he note, no action would be maintainable on it, as here would be no consideration. [Ex. with them, and would give him credit upon the same, the said Win. Steward then promised the said banking The mere existence of a debt due from the customer to company to do and perform all things in and by the he bank on 31st Dec. 1855, without any balance said guarantee mentioned on his part to be done and being then struck, and unaccompanied by any claim performed. Averment, that the company did permit, ly the bank in respect of that debt, would not have and that said W. M. Courtney did open and keep a he effect of making the statute run from that date.banking account with them, and they then gave him This was an action by the plt., the registered public credit on the same, and that whilst he kept such bankofficer of the Gloucestershire Banking Company, against ing account he became indebted and liable to the said defts. the executors of one William Steward, deceased. company in a large sum, to wit, the amount mentioned The first count of the declaration was upon a pro- in the said promissory note, for or by reason and on missory note, dated 4th Dec. 1855, made by the said account of divers moneys paid, lent and advanced, William Steward in his lifetime, whereby he promised &c. (following the words of the guarantee as above to pay to the said banking company 2007. on demand. set out), and although the said company have done The second count, which was a special count, was as all things necessary, and all conditions, &c. have hapfollows:-" And plt. also sues defts., as such pened, and all times have elapsed necessary, &c., yet executors, &c., for that at the time of the making of the said W. M. Courtney has not paid the same. And the contract herein after mentioned, the said W. Steward although, &c. (as before) to entitle the said company in his lifetime, and one W. M. Courtney, made their to have the said money paid by the said W. Steward promissory note in writing, and thereby jointly and in his lifetime, and by defts. as executors as aforesaid severally promised to pay to the said banking com- after his death, yet the said Wm. Steward did not in pany 2007. on demand, and then delivered the his lifetime, nor have defts. as executors, &c., paid the same to the said company, and deft. and the said same or any part, &c. W. M. Courtney then also made and signed and delivered to the said banking company, together with the said promissory note, a certain instrument in writing or guarantee, in the words and figures following, that is to say : Pleas (the only ones material to the present question) :-1. The Statute of Limitations to the first count upon the note. 2. Non-assumpsit to the second count. At the trial before Martin, B., at the Middlesex “Memorandum.—That the joint and several pro- sittings after Trinity Term last, it appeared in evidence missory note, dated the 4th Dec. 1855, given by us that on the 4th Dec. 1855 Courtney opened an account the undersigned W. Steward and W. M. Courtney, to with the defts.' bank, giving the promissory note and the G. Banking Company for 2001., payable on de- memorandum mentioned in the declaration as a mand, is so given by us, and each of us, as a security. It appeared from his pass book that on the further and collateral security to the said banking same day he was indebted to the bank in 14s. 6d., company for the banking account intended to be being the charge for the note-stamp and commission, kept by the said W. M. Courtney with them, and shall and that on the 10th Dec. 1855 he was indebted to be held by them, and they shall be at liberty at any them in 70l. advanced, and on 31st Dec. his time hereafter to recover thereon from us and each debt was increased to 170l. 1s. 11d.; but no balance of us, up to the full amount thereof, all and every was then struck, nor was any claim made by the bank. sum and sums of money which the said W. M. Courtney His first cash payment was in Jan. 1856. Balances shall or may at any time hereafter become indebted or were struck every half year. In June 1856, when the liable to the banking company for, or by reason, or on first balance was struck, Courtney was debtor to the account of any moneys paid, lent, or advanced by amount of 1941. 5s. The account continued to be the said company to, for, or on account of carried on in the usual course until Feb. 1861, when the said W. M. Courtney, or of any bills or notes it was closed. The monetary transactions between discounted for or on account of the said W. M. Courtney, Courtney and the bank amounted to between 1200/. and or of any bills or notes discounted for, or bearing the 1400l. a-year. The promissory note was not carried to acceptance, or signature, or indorsement of the said Courtney's credit with the bank, nor was interest pa'd W. M. Courtney, or otherwise howsoever, with interest, on it; but there were half-yearly charges to him for commission and other usual bankers' charges thereon; commission and interest on balance of his account, and our and each of our liability on the said note shall which balance was sometimes more and sometimes less not be withdrawn while the said company shall be the than 2007. At the time of the closing of the account, holders of any bills or notes so discounted for, or bear-in Feb. 1861, there was a balance due from Courtney ing the acceptance of the said W. M. Courtney, although the same may not be at maturity; and in case of the said company suing on our promissory note, the production thereof by the said company shall be conclusive evidence as against the said Wm. Steward of the amount claimed by them from the said W. M. Courtney being due and owing by him to them, and they shall not be called upon or required to give any further or other proof of the amount so claimed by them being so due and owing. to the bank, of which a sum of 175l. was now due. Steward, the surety, had not in his lifetime, nor had his executors, the defts., since his decease, done any sct which would keep the note alive. The action was commenced on the 4th March 1862. Defts.' counsel contended, at the trial, that no right of action was given in the document, except on the note, and that the Statute of Limitations was an answer to the note. Thereupon Martin, B. directed a nonsuit to be entered, with leave to plt. to move to enter a verdict for 1757., with leave to make any amendment in the pleadings which the court should think fit. "W. M. COURTNEY, "WM. STEWARD. "Dated this 4th day of Dec. 1855." A rule was accordingly obtained, in Michaelmas Averments, that the promissory note mentioned in the Term last, to set aside the nonsuit, and to enter the said guarantee was and is the promissory note above men- verdict for plt. for 175l., on the grounds, first, that tioned, and that the said company was and is the said the promissory note was taken out of the statute by banking company in the commencement of the declara-part payments made by Courtney, and, secondly, that tion mentioned, and that the said Wm. Steward was and is the said Wm. Steward, deceased, therein also mentioned, and that for the said considerations in the said guarantee mentioned, expressed and implied, and in consideration that the said company would permit the said W. M. Courtney to open a banking account the document set forth in the second count of the declaration kept alive the remedy of the banking company on the said promissory note, and prevented the statute from running against it. Collier, Q. C. (with whom was Murch) now showed cause.-The statute ran from the date of the note, and Ex.] HARTLAND v. JUKES AND OTHERS. [Ex. prima facie was an answer to the action. The only | This was intended to be a continuing security, and the question was whether it had been avoided in any way. court would not defeat the right on a technical The memorandum must be taken to be contemporaneous point, that for a small sum of 14s. 6d. plt. might with the note. The declaration averred that defts. have had a cause of action immediately. In Webt v. promised to do all that was promised in the memoran- Spicer (in error), 13 Q. B. 886; 19 L. J., N. S., 34, dum, and then there was the breach, which was merely Q. B., it was sought to control the effect of a prothat they did not pay the promissory note. Nothing missory note by setting up a collateral agreement, and in particular was promised, and the pleader had care- the Court of Ex. Ch. held (upsetting the decision of fully avoided saying that there was; the effect was the Q. B.), that it could not be, because it was net merely to limit the claim, when sued on the note, to between the same parties (see per Parke, B. 13 Q. B. the amount due on the banking account. "The last-889); and the Court throughout held that if it had been mentioned sum of money," in the declaration, was the promissory note. The Statute of Limitations applied to both counts. [MARTIN, B.-According to that memorandum the note was to be a security for the balance.] No payment appeared in the banking || account to be made on account of the note, and it could not be said that any payments made by Courtney were on account of it, to take it out of the statute. [POLLOCK, C.B.—Would it be necessary to renew the note?] At the end of six years from its date the note expired, and all remedies with it. [BRAMWELL, B.Suppose defts. had said, "We guarantee you any amount that may be due to the extent of 600%-a floating balance-and it had gone on for ten years, and then there was something due to the bank within a few months, would they be liable?] It might be so on a guarantee, but this was on the note. no fresh right of action de die in diem on a fresh balance. [MARTIN, B.—Was there a debt due when the note was given?] Yes, a small sum of 14s. 6d, and on the 10th Dec. it was 70l. If the payments made by Courtney from time to time were in respect of the note, then the note had been long ago satisfied and was discharged. If they were not, and the agreement was strong in defts.' favour to show that they were not so made, then the statute applied. Plt. might accept either horn of the dilemma. There was between the same parties, it would have controlled the Jan. 23.-POLLOCK, C. B. now delivered the judgment of the court (Pollock, C. B., Martin, Bramwell and Channell, BB.) as follows:-This is an action by the public officer of the Gloucester Banking Company against the executors of one William Steward. The first count is upon a promissory note dated the 4th Dec. Macnamara, contra, for plt., in support of the rule.-1855 made by the testator and one William Courtney, It appeared at the trial, that the note was not carried whereby they jointly and severally promised to pay to Courtney's credit on account, but he was allowed the banking company 2008. on demand. The second at once to draw against it. It was not correct to say he count is upon a special contract alleged to be contained was then indebted to the bank, for the 14s. 6d. was in the instrument hereafter mentioned, and the breach for the expenses of stamp and note The two docu- is for nonpayment of the money secured by the ments must be looked at as one agreement, or as two promissory note. The important pleas were the Statute parts of one agreement; the effect was to convert the of Limitations to the count upon the note, and noa note into an agreement. There was no cause of action assumpsit to the second count. The facts are these:on the note until there had been an advance. The In the year 1855 William Courtney proposed to open second count met the case; each advance constituted a a banking account with the Gloucester Banking Comnew cause of action on the note; and an advance was pany, and thereupon he, and the testator as his surety, made within six years before action. To hold other-executed to the company the promissory note declared wise would defeat the manifest intention of the parties, which was that the bank should have a right to sue on the note, so long as they had a right to sue on any advance. It was not within the mischief guarded against by the statute. [BRAMWELL, B.-Assume that the cause of action arose on an advance; suppose the advance paid by the customer, and then a balance in his favour, and afterwards a balance against him, and then a fresh cause of action, why should not the note apply to that? MARTIN, B.-The moment the statute began to run it continued to run.] The cases on the subject fully bore out the proposition for which he was contending: (Irving and another v. Veitch, 3 M. & W. 90.) The judgments of Lord Abinger, p. 108, and Parke, B., 109, were strongly in defts.' favour: (s. c. 7 L. J., N. S., 25, Ex.) [BRAMWELL, B. -That case seems to me in point as far as I can collect it. MARTIN, B.-I think you will find the payments there were to the note as well as to the agreement. BRAMWELL, B.--If this were a bond with a penalty, running for twelve years, and there were certain things which ought to be done in the first year, and they were not done, surely the obligee might go on to the end of the twelve years, and then say his action accrued in respect of the things not done in the first year.] on, and at the same time an instrument in writing was signed by them and delivered to the banking company. It was in the form of a memorandum, and was to the effect that the promissory note was given as a further and collateral security to the banking company for the banking account intended to be kept by Courtney with them, and that it should be held by them, and they should be at liberty to recover thereon to the full amount thereof all the money in which Courtney should at any time thereafter become indebted or liable to the banking company on his banking account. The banking account was accordingly opened, and on the 31st Dec. 1855 Courtney was indebted to the bank upon it to the amount of 1797. Is. 11d.; but no balance was then struck. The account was continued in the ordinary course of banking transactions down to Feb. 1861, when it was closed with a balance due to the banking company, of which a sum of 1751. is now due. The defts. were required to pay this balance due, and this not being done this action was brought upon the 4th March 1862, more than six years from the date of the note. The cause was tried before my brother Martis, at the sittings at Guildhall after last Trinity Term, when that learned judge directed a nonsuit, with leave reserved to the plt. to enter a verdict. A rule for this purpose was obtained, and the case has been argued ; and after much consideration we have arrived at the conclusion that the Statute of Limitations is not an answer to the first count. Had the security been in the form of a bond for 2001., and a defeasance to the effect of the memorandum, the operation and effect of this security would have been clear. Notwithstanding that the instrument is a promissory note payable on demand, which, primâ facie, indicates a present existing liability enforceable without demand, and as to which the Statute of Limitations runs from the date, we think we are bound to read that and the memorandum together, in order to ascertain the true meaning and character of the transaction. It is clear that, until an advance was made by the banking company to Courtney, no action could have been maintained upon the note; until then there would have been no consideration, and until there was consideration no action would be maintainable, and the Statute of Limitations only runs from the time when the cause of action accrued. The question, therefore, is, when did the cause of action accrue? and unless it accrued before the 4th March 1856, the statute is no bar. It was contended before us, that the statute began to run from the 31st Dec. 1855, by reason of the debt of 1791. 1s. 11d. then due from Courtney, the customer to the bank; but no balance was then struck, and certainly no claim was made by the bank upon the defts.' testator in respect of that debt, and we think the mere existence of the debt, unaccompanied by any claim by the plt., would not have the effect of making the statute run from that date. Our judgment, therefore, is, that the rule should be made absolute to enter the verdict for the plt. Rule absolute. Attorney for plt., E. Doyle, 3, Verulam-buildings, Gray's-inn, agent for Taynton, Gloucester. Attorneys for defts., Maples, Maples and Teesdale, 6, Frederick's-place, Old Jewry, agents for Stone, Chamberlayne and King, Bath. Pl., in the lifetime of E. M. (his mother), by deed, dated 9th Jan. 1844,mortgaged certain premises in fee to one J., whose interest therein was subsequently vested absolutely in deft. by purchase in the year 1857, under the power of sale in the mortgage. E. M. died in 1848, having been in possession of the premises for a period of thirty years, and in 1861 plt, who was one of her next of kin, took out administration to her, and brought ejectment to recover the premises from deft., alleging that a term therein, of which E. M. died possessed, devolved upon him as such administrator. At the trial evidence was given of E. M.'s possession, and building cottages on the land, in one of which she lived, and the other she let to a tenant, and of her exercising various other acts of ownership over the premises; that a fire had happened in 1836, in which a certain deed was burnt, and due search having been made for it in vain, parol evidence was given of its contents, showing that it was an assignment made in 1819 to E. M., of the premises in question for the residue of a term of ninety-nine years, determinable on three lives, one of which lives was proved to be in existence at the time of the trial. The original lease from the freeholder in 1798, creating the term, was not forthcoming, although due search had been made for it in the proper quarter, but an old rental was put in, showing that the steward, appointed by the freeholder to be the receiver, had received the con- | [Ex. ventionary rents for the premises in 1801, 1802, 1804 and 1805. Held (per Pollock, C.B., Martin, Channell and Wilde, BB.), first, that E. M.'s possession and acts of ownership being evidence of a presumptive title in fee, unless cut down or explained, it was necessary for plt. to remove such title, and to show a legal interest in her for a term of years surviving the commencement of the action; that the parol evidence having been admitted without objection, the case must be taken as if the deed had been produced, tallying with that parol evidence; that E. M.'s enjoyment must have been a rightful enjoyment, with reference to the term of which parol evidence was given, and that there was clear evidence to go to the jury that such a term existed: Secondly, that plt., as administrator of his mother, was not estopped by his mortgage- deed of 1844 from setting up that term in the present action, as he must be considered as standing in the position of a stranger, and that his being entitled to a share in the beneficial interest in the premises as one of his mother's next of kin was immaterial and did not affect his right to sue as a stranger in his capacity of administrator. Doe dem. Hornby v. Green, 1 A. & E. 49; 3 L. J. N. S., 161, K. B., acted upon. Smith and others v. Morgan, 2 Moo. & Rob. 257, overruled. Ejectment to recover possession of two acres of meadow ground, part of Beaworthy Meadow, and two cottages, one barn, one outhouse, two gardens and curtilage adjoining the said meadow ground, the whole of such premises formerly in the occupation of Elizabeth Metters, widow, situate in the village and parish of Beaworthy, in the county of Devon. At the trial before Williams, J., at the last summer assizes, at Exeter, the following appeared to be the facts of the case:-On or about the 29th March 1798, a lease of that date was granted by the guardians of the then Sir Arscott Molesworth, Bart. (an infant), to one Richard Metters, the plt.'s grandfather, of lands at Beaworthy, for ninety-nine years, determinable on three lives. The tenement granted by this lease comprised about 300 acres, and was called "Easton's Tenement," and was occupied by R. Metters until his death on the 31st July 1818. By his will, made some years previously, whereof he appointed his natural son, John Stenning Dawe, sole executor, and by whom it was duly proved on the 6th Aug. 1818, the said R. Metters directed that "all his leasehold estate, goods, chattels, moneys, &c., and all other the property of which he should die possessed, should be divided into nine equal parts; " and he thereby bequeathed the same in equal ninth parts to the several persons therein named, of whom his legitimate son, Thomas Metters, was one; and he authorised his said executor to sell all or any portion of the said property for the purposes of the said division. Subsequently, in or about Jan. 1819, Dawe, the executor, accordingly, for a valuable consideration, sold and assigned the lands comprised in the said lease of 1798 to the said Thomas Metters, the testator's legitimate son, for the residue of the said term of ninety-nine years. Neither the original nor a copy of this assignment was produced at the trial. It was alleged also, on the part of the plt., that, in or about the month of Jan. 1819, the said Thomas Metters, for a valuable consideration, assigned by indenture to Elizabeth Metters, his mother, the acre and half of land in question in this action, being part of Beaworthy meadow, and called "Farthing's Piece," for the residue of the said term of ninety-nine years, determinable on the said three lives. This assignment was not produced at the trial; but it was proved, on plt.'s part, that Elizabeth Metters was in possession of the piece of land from 1819 until her death, in April 1848; that she had built two cottages and outhouses on the land, in one of which she lived to the time of her death, and the other she let to successive tenants, and received rent for it from them, and that she never paid rent for the land or cottages to any one; that she enjoyed rights of common in respect of the property; and that on one occasion, when such rights were disputed, she successfully maintained them before the magistrates; and that, at the yearly revel, wrestling matches were, with her permission, and on the payment to her of a small sum of money, held on the bit of meadow in question. To prove that such an assignment had once existed plt. deposed that the deed was prepared by one Gilbert, and was signed by T. Metters and E. Metters, in his presence, and attested by two witnesses; and that the deed was delivered to E. Metters, who paid the cost of it; and that it was an assignment of the land in question for the residue of a term of ninety-nine years, determinable on three lives. Other witnesses deposed to having seen the deed, and that it was for the residue of a term of ninety-nine years, and that three lives were mentioned in it; and that E. Metter's name was in it; and that it was the same deed which she produced before the magistrates in defence of her rights of common. It was proved that Gilbert, who drew the deed, and the attesting witnesses, were dead. Evidence was then given of the destruction of the plt.'s dwellinghouse by fire in 1836, when the said deed of assignment, which was at that time in his custody in his said dwelling-house, was burnt, and that due search and inquiry had been made for it in all proper quarters in vain. There was no direct proof of the original Molesworth lease of 1798 to R. Metters, a copy or draft of such a document having been tendered by plt.'s counsel, but withdrawn on objection by counsel for deft.; but an old rental was put in by plt., which was proved to be in the writing of a former steward of the Molesworth family, and which showed the conventionary rents to have been paid by R. Metters for the tenement in question in the years 1801, 1802, 1804 and 1805. Proof was also given of proper searches and inquiries having been made, but without success, for the original lease of 1798, and also for the assignment from Dawe to T. Metters in 1816. E. Metters died in April 1848, leaving plt., her son and two daughters, surviving. On 11th June 1861 letters of administration of her estate and effects were granted to plt., and on the next day he brought the present action. [Ex. | be donee of a term of years unexpired. That as to the second point, plt. was the son and administrator of his mother, and so claimed as legal personal representative, and he referred to Doe dem. Hornby v. Glenn, 1 A. & E. 49; 3 L. J., N. S., 161, K. B., as a strong case against deft. The jury found a verdict for plt., and leave was reserved to move to enter it for deft. A rule having accordingly been obtained in Michaelmas Term last to enter the verdict for deft., or a nonsuit, on the ground, first, that plt. did not prove that he was entitled to a term in the premises, and, secondly, that he was estopped from setting up such term, M. Smith, Q.C. (with whom was C. A. Turner) now showed cause against it, and contended, as to the first ground, that there was evidence for the jury of an unexpired term of years, determinable on lives, under which E. Metters held the land in question, which term cut down her presumptive seisin in fee. After the admission of that evidence at the trial, without objection on deft.'s part, he could not now be heard to say there was no evidence on which to go to the jury on that part of the case. It was said there was no proof of title to the term; but by the Statute of Frauds, where there was no special occupant, an estate pur autre vie would go to the executors or administrators, and be assets in their hands: (1 Wm. Exors. p. 531, 3rd edit.) [CHANNELL, B.-Supposing E. Metters had died before the mortgage to Jago, would pit. have had any interest in this term?] None; but as one of her next of kin. Then, as to the second and strongest point made on the other side, namely, that of estoppel: it was submitted that plt. was not estopped from setting up his title to the term as administrator of his mother by having executed the mortgage in 1844. Estoppel, to bind, must be in the same right and interest, and between the same parties and privies. Were the mother alive, she could sne, and plt. was suing here not sui juris, but as her administrator. Quá the man he was the same, but quá the right in which he sued, he was a different person from the mortgagor in the deed of 1844. [POLLOCK, C. B.-It has been decided, over and over again, that if an assignee of a bankrupt sues, you cannot, as against the estate, put in evidence statements made by him before he became assignee.] De dem. Hornby v. Glenn, 1 A. & E. 49; 3 L. J, N. S, 161, K.B., was, as was said by the learned judge at the trial, a very strong case against deft. So also was Middleton's case, 5 Co. 28 B. (MARTIN, B. referred On behalf of deft. it was proved or admitted that to Com. Dig. tit. "Administrator," C. 3; Ibid. tit. on the 9th Jan. 1844 plt., who had in another right"Estoppel," C.] Robinson's case, 5 Co. 32 B., was succeeded to the reversion, by a deed of that date mortgaged the property in question, with other hereditaments, to one Jago in fee, to secure 5507. and interest, with power of sale; that Jago died on the 30th Jan. 1853, having by will, dated 24th Feb. 1852, devised all his property, real and personal, to his daughter Elizabeth Lucas, widow, absolutely, and appointed her executrix; that said E. Lucas duly proved the said will, and by indenture of 25th May 1857 sold and conveyed to deft., for a valuable consideration, the property comprised in Jago's mortgage under the power of sale therein. Under these circumstances deft.'s counsel objected: first, that plt. had given no evidence that E. Metters' interest was a leasehold interest, and had not given any proof of possession in her; and, secondly, that plt. was estopped, by his own mortgage-deed to Jago, of 9th Jan. 1844, from setting up title to defeat such deed. The learned judge ruled that plt. had shown a prima facie case of enjoyment of the premises by E. Metters, from which a seisin in fee would be presumed; that her having put her name to the assignment was evidence cutting down such seisin, and showing her to to the same effect. It was clear, from Co. Litt., that one who was estopped as heir of his father, would not be estopped as heir of his mother. The cases were collected in 1 Taylor on Evidence, p. 82; see also 2 Sm. L. C. 618. Collier, Q.C. and Kingdon, contra, urged that this was a fraudulent attempt, by means of letters of administration taken out thirteen years after the mother's death, to oust deft. from the possession of property which plt. had deliberately mortgaged to Jaga in 1844, and which deft. had fairly purchased under the power of sale in that mortgage, and had since peaceably enjoyed. As to the first point, plt. filed to give evidence of 3 term outstanding in E. Metters. The evidence, such as it was, was rather of a fee outstanding in Lady Molesworth. It was on plt. to show that E. Metters had a term of years; a presumptive fee in her would not support the action. No lease for lives from the freeholder had been shown. [CHANNELL, B.--I should not be disinclined to agree with you but for the fact that plt.'s mother was shown to be in possession.] Yes, but unaccompanied by other evidence that would be presumptive evidence of a fee, and then plt. must fail, Vol. 7.] THE LAW REPORTER. METTERS v. Brown. [Ex. Having executed this [MARTIN, B.-The evidence of an assignment of a doubt from these conflicting decisions. Estoppel applied lease was surely evidence for the jury, from which they not only to deeds, but to any representations: (Pickard might fairly infer that E. Metters was only owner of v. Sears, 9 A. & E. 469.) [MARTIN, B.-You will the residue of a term on lives, and not of a fee.] It never make that case apply to a conveyance of land.] was apprehended not. There was no evidence to con- Plt. was bound to make out two propositions: first, neet Thomas Metters with the owner of the fee; no link an outstanding term in his mother; secondly, that as between them. If nothing else had been shown it administrator he became entitled thereto; and it was might be that plt.'s mother might have been presumed submitted that the moment he attempted to establish to be the owner of it, but here there was an entire the first proposition he was then and there estopped, break and nothing to fill it up. [CHANNELL, B.-Do and deft. was entitled to arrest him, in limine, at He could not during you go the length of saying that, even if the missing Nisi Prius, from going further. Plt. was here an actor deed had been produced, there would still have been no and came voluntarily into court. evidence to connect Thomas Metters with the owner of his mother's life have set up that the term was in her the fee?] Yes; there was no proof of such a term as at the date of the mortgage, nor could he do so now would entitle plt. to recover. The last receipt of rent-the estoppel enured now as much as if this had by the then freeholder was in 1805, the date of the alleged lease was 1819. Assuming E. Metter's possession to be referable to the missing deed, then it was not shown to have been granted by a person having a right to grant. Negatively, Thomas Metters was not Jan. 31.-CHANNELL, B. now delivered the judgshown in possession of the fee; positively, Lady Molesworth was shown to be so. It was an elementary doc- ment of the court (Pollock, C. B., Martin, Channell and trine in ejectment to trace the title back to the Wilde, BB.) as follows.-This was an action brought by freeholder, who alone had power to give title. John Metters, administrator of his mother Elizabeth Then as to the second point, it had been established Metters, against Charles Brown. The cause was tried in a series of cases that, as between mortgagor before my brother Williams, at the last summer asan sizes for the county of Devon, when a verdict was and mortgagee, a mortgage-deed generally was absolute estoppel, and that the mortgagor was equally found for the plt., with leave reserved to the deft. to estopped from setting up the title of a third person. move to enter a nonsuit on two points. The action Doe dem. Ogle and others v. Vickers, 4 A. & É. 782; was an action of ejectment, and it was brought to re6 L. J., N. S., 266, K. B., showed that such a lease cover a small piece of land consisting of about an The plt. sued as administrator could not be set up against a mortgagee. That was the acre and a-half, and there were two cottages and some general rule where a man was suing in his own right. outbuildings thereon. Then did his suing as an administrator make any of his mother, and he sought to recover the premises difference with regard to estoppel? Had the mort- in question by reason of a term, of which it was said gagee brought ejectment in the mother's lifetime plt. his mother died possessed, and which devolved upon him could not have set up as a defence that his mother had as administrator, and would continue down to and after an outstanding term. But here plt. was described in the time when the action was brought. The defence He took a was, that administration had not been taken out by the writ as entitled in his own right. beneficial interest as one of her next of kin, and quoad the present plt. until nearly fourteen years had elapsed such beneficial interest he was estopped, and if estopped from the time of his mother's death, and the deft. had as to part it was difficult to say he was not as to the been in possession of the premises by reason of a 9th Jan. 1844, by which whole. The two interests were not easily distinguish- mortgage executed by the plt. in the lifetime of the able. [MARTIN, B.-It strikes me that the doctrine mother, dated the of admissions and declarations which has been alluded the premises sought to be recovered, together with to does not bear on this case, which stands on the some adjoining premises, were mortgaged to one Jago, technical ground that there is no estoppel, because the and whose interest it was said had not vested in the land now comes to plt. in a different character. It is plt., but had vested in the deft. The two objections mot a question of evidence or admission, it is estoppel.] specifically made by the deft. to the plt.'s right to recover In Middleton's case, relied on by the other side, there were these: that there was no evidence on the part of the was a note throwing a doubt upon the decision, and plt. to establish the existence of the term which it was referring to Whitehall v. Squire, 1 Salk. 295, as an said had vested in the plt. as administrator; and in authority the other way. See also the comments of the next place, supposing there was evidence of that Williams, J. on Doe v. Glenn, and Whitehall v. Squire, term, then that the executor was estopped from setting In Doe v. Glenn up that term, and recovering by virtue of that term 1 Wms. Exors. 312-13, 3rd edit. the plt. was executor de son tort, and it was not a case by reason of the mortgage executed in the month of But the plt. Jan. 1844, by which he had mortgaged the premises, of a deed, but a mere parol statement. here by deed has said that there was no such title as together with other premises. The first question, In Smith and then, that arises, is, whether there was any evidence that which he was now setting up. others v. Morgan, 2 Moo. & Rob. 257, it was held by to show the existence of the term? The mother in Tindal, C.J. that the declarations of a party suing as her lifetime was in possession of the land; she had a representative of others, made before he became such, built cottages upon this land, she lived in one, and let were evidence affecting the interests of creditors, and the other and received the rent; there was, there the C. J. there said that the distinction attempted to fore, emple evidence to show a title in her in fee, presumably, unless it was be established was new to him. [POLLOCK, C.B.It was necessary on the part of the plt. With all due respect for that learned judge, I have no plained. I to remove the title in fee that was in the mother, hesitation in saying that that decision was wrong. The verdict was for plt., and to show not only a chattel interest, but a legal was counsel in that case. At the trial he did that and so the point became immaterial, and was interest for a term of years that would survive the V. Thornton, commencement of the action. not questioned, but in Fenwick 1 Moo. & Malk. 51, there is an earlier ruling of in this way: he showed that there had been a fire upon Lord Tenterden's entirely contrary to that in Smith v. plt.'s premises, wherein a certain deed was at the time Morgan; both, however, are decisions at Nisi Prius deposited, and that such deed had been then burnt. only. MARTIN, B.-The present case has nothing Search was made in the proper quarter to account for to do with admissions at all, it is a question of pro- the existence of it, and parol evidence was then perty]. At all events it was clear there was a admitted to show what was the interest which the cut down or ex |