suit, the plaintiff was solely liable to make to H. and G. the payments, the agreement by the plaintiff to make which was by the memorandum stated to be in part the consideration for Jones's agreeing, as was alleged; and that Waite was at the time of the signing by the defendant of the said memorandum, and before and at the time of the commencing of this suit, solely liable to pay the said expenses and outstanding debts in full, the agreement by the plaintiff to pay which debts in full was by the said memorandum stated to be in part the consideration for Jones's agreeing, as was alleged. Verification.

Special demurrer to the second plea for duplicity.

The demurrer was argued in the court of Common Pleas in Easter term 1835 before Tindal C. J., Gaselee J., Vaughan J., and Bosanquet J., when that court unanimously held that there was nothing upon the face of the record to shew that any part of the consideration for Jones's promise was illegal (1 New Cases, 656; 1 Scott, 730; Hodges, 166)

Jones having brought a writ of error in the Exchequer Chamber, the errors were argued on the 4th of February 1836, before Lord Denman C. J., Lord Abinger C. B., Littledale J., Alderson B., and Patteson J. That court, on the 11th of February 1839, affirmed the judgment of the court of Common Pleas, dissentientibus Lords Denman and Abinger, who were of opinion that the consideration disclosed upon the face of the declaration was illegal (5 New Cases, 341; 7 Scott, 317).

[1106] Jones having brought a writ of error returnable in parliament, the case was argued on the 1st of July 1842, in the presence of Tindal C. J., Williams J., Parke B., and Alderson B. upon the question, whether that part of the consideration for the agreement which is not answered by the plea, viz. the execution of the deed of separation, was sufficient to support the promise, or whether it was an illegal and void consideration.

T. F. Ellis (with whom was Sir W. Follett S. G.), for the plaintiff in error, cited the cases of Worrall v. Jacob (3 Meriv. 268), Wilkes v. Wilkes (2 Dick. 791), Tenant v. Brace (Toth. 78), Key v. Bradshaw (2 Vern. 102), Lowe v. Peers (4 Burr. 2225), Brown v. Peck (Eden, C. C. 140), Allen v. Hearn (1 T. R. 56), and Hartley v. Rice (10 East, 22), to shew that the consideration was illegal; and he relied upon Fletcher v. Fletcher (2 Cox, 99), Legard v. Johnson (3 Ves. 352, 361), Lord St. John v. Lady St. John (11 Ves. 526), Westmeath v. Westmeath (1 Jac. 126; 1 Dow & C. 547; 5 Bligh, N. S. 339), Durant v. Titley (7 Price, 577), and Lee v. Thurlow (2 B. & C. 547; 4 D. & R. 11), as authorities shewing the agreement to be void for the want of mutuality.

R. V. Richards (with whom was Peacock), contrà, cited Hindley v. The Marquess of Westmeath (6 B. & C. 200; 9 D. & R. 351), 2 Roper on Husband and Wife (Jacob's edition), pp. 269, et seq. Wilson v. Mushett (3 B. & Ad. 743), Hill v. The Manchester and Salford Waterworks Company (2 B. & Ad. 544), and Potts v. Sparrow (1 New Cases, 594; 1 Scott, 578).

The opinion of the judges was delivered by

TINDAL C. J. We are of opinion that no illegality is disclosed upon this record. One part of the consider-[1107]-ation for the promise of the defendant below was the execution by the plaintiff below of the deed of separation, which, as appears from the declaration, had been previously agreed upon and drawn up. The second part of the consideration was the discharge of Horne and Gates's demand, and the payment of the household expenses and certain debts in full. In this there is no illegality. The only question, therefore, is, whether the deed of separation which the plaintiff below agreed to execute was illegal. We are of opinion that nothing is disclosed upon this record whence we can discover that there was any illegality in that deed.

Lords Brougham and Campbell expressed their concurrence with the opinion of the learned judges; and the judgment of the court below was Affirmed with costs.

PHIPPS v. AKERS. August 1, 1842.

[See S. C. 9 Cl. & F. 583; 8 E. R. 539 (with note).]

A. being seised in fee of lands at W., devised "his real estate at W." to B., when and so soon as B. should attain his age of twenty-one years; but in case B. should die

under the age of twenty-one years, then he directed "that his said estate at W. should sink into his residuary real estate," and he devised all the residue of his real estates to C., subject to various limitations and provisions. A. died seised in fee of the lands at W., leaving an infant.-Held, that B., on the decease of A., took an estate in fee in the lands at W., subject to be divested in the event of his dying under twenty-one and without issue.

In this case the following question was submitted by the House of Lords for the opinion of the judges;

"A. B. being seised in fee simple of certain lands and hereditaments at W. by his will duly executed, &c. gave all his real estates at W. to his godson G. H. A., when and so soon as he should attain his age of twenty-one years; but in case his said godson should die under the age of twenty-one years, then the testator directed that his said [1108] estate at W. should sink into and form part of his residuary real estate. And by his said will he gave all the residue of his real estates to J. C., subject to various limitations and provisions affecting the same.

"The testator continued seised in fee-simple of the said lands and hereditaments at W. until his death, and he died without revoking or altering his will, leaving G. H. A. an infant of the age of twelve years.

"The opinion of the judges is desired as to what estate G. H. A. took in the estate at W."

The case was argued on the 10th of May last. The judges took time to consider, and on the 30th of June their unanimous opinion was delivered by

TINDAL C. J. In order to answer this question it is not necessary for us to say what would be the legal effect of a simple devise to A. and his heirs, when or if he shall attain twenty-one, without any concomitant provisions calculated to shew whether the testator did or did not mean to treat the attaining twenty-one as a condition precedent. In such a case Mr. Fearne may be right in the opinion, found among his posthumous works, that until the devisee attains the prescribed age, he takes no interest whatever in the devised lands. But, whatever may be the true meaning of such a devise, if it should occur by itself, there is ample authority for saying that such words may, from the context, be taken not to indicate the time when the estate is to vest, but to point out an event on the happening of which an estate already vested is to be divested in favour of some other person. And the cases upon subject appear to be resolvable into two classes; first, cases in which the courts have relied on the circumstance that the estate prior to the attainment of the age of twentyone, has been given to some third person, either for the benefit of the devisee him[1109]-self, as in Goodtitle dem. Hayward v. Whitby (1 Burr. 228); or for the benefit of some other persons to endure during the minority, as in Boraston's case (3 Co. Rep. 16), and Mansfield v. Dugard (1 Eq. Ca. Abr. 195); secondly, cases in which the estate is given over in the event of the devisee's dying under twenty-one, as in Edwards v. Hammond (3 Lev. 132), Bromfield v. Crowder (1 New Rep. 313), and Doe dem. Hunt v. Moore (14 East, 601).

this

The first class of cases proceeds on the ground, that the estate given to the devisee on his attaining twenty-one, is, in fact, only a remainder taking effect in its natural order on the determination of the preceding estates, and that the attaining of the prescribed age in such a case no more imports a condition precedent than any other words indicating that a remainderman is not to take until after the determination of the particular estates.

The second class of cases goes on the principle that the subsequent gift over on the event of the devisee's dying under twenty-one, sufficiently shews the meaning of the testator to have been, that the first devisee should take whatever interest the party claiming under the devise over is not entitled to; which, of course, gives him the immediate interest, subject only to the chance of its being divested on a future contingency.

Whether the doctrine on which this second class of cases has rested was originally altogether satisfactory is a point which we need not discuss. It is sufficient to say, that it clearly has been established and recognised as a settled rule of construction, not only in the courts below, but also in your lordships' House. And that rule appears to us clearly to govern the case put to us by your lordships. In conformity

with which rule, therefore, we beg leave to state that on the question put to us, we are of opinion that G. H. A., on the decease of [1110] the testator, took an estate in fee simple in the lands and hereditaments at W., subject to be divested in the event of his dying under twenty-one, and without issue.

The House, on a subsequent day (the 11th of August), gave judgment in accordance with this opinion.

Judgment affirmed.

CASES ARGUED and DETERMINED in the COURT

of COMMON PLEAS. By JAMES MANNING, Serjeant at Law, and T. C. GRANGER, of the Inner Temple, Esquire, Barrister at Law. Vol. V. From Hilary Term, 1843, to Easter Term, 1843, both inclusive. With the REGISTRATION APPEAL CASES of Michaelmas Term, 1843, and Hilary Term, 1844. London, 1845.

[1] CASES UPON APPEAL FROM THE DECISIONS OF REVISING BARRISTERS, ARGUED AND DETERMINED IN THE COURT OF COMMON PLEAS (a), IN MICHAELMAS TERM AND VACATION, AND EASTER TERM, IN THE SEVENTH YEAR OF THE REIGN OF VICTORIA (b).

WEST RIDING OF YORKSHIRE.

AUTEY, Appellant; TOPHAM, Respondent. Nov. 7, 1843.

[S. C. 7 Scott, N. R. 402; 1 Lutw. Reg. Cas. 1; Barr. & Arn. 1; 13 L. J. C. P. 39; 7 Jur. 995.]

Where the statement of the case by the revising barrister and the notice of intention to prosecute the appeal have not been sent to the masters within the four first days of Michaelmas term, the court will not, except under peculiar circumstances, allow the appeal to be entered. The statement in writing by the revising barrister is duly transmitted to the masters, but the notice of intention to prosecute the appeal is not sent in time: Held, that the appeal cannot be entered.-An affidavit by the clerk of the attorney to the appellant, stating that the notice which is required to be signed by the appellant, had by mistake not been sent, cannot be received as a substitute for such notice.

Shee Serjt. applied, on behalf of the appellant, that the appeal in this case might be entered by one of the masters, under sect. 62 of the registration act (c). By [2]

(a) Under the provisions of the registration act, 6 & 7 Vict. c. 18.

(b) These cases are reported in this place in order to render them available at the next revision of the lists of voters.

(c) Enacting, "That every appellant who shall intend to prosecute his appeal shall, within the first four days in the Michaelmas term next after the decision to which such appeal shall relate, transmit to the masters of the said court of Common Pleas the statement in writing so signed by the said revising barrister as aforesaid, and shall also therewith give or send a notice, signed by him, stating therein his intention to prosecute the said appeal; and the said appellant shall also give or send a notice, signed by him, to the respondent in the said appeal, stating his said intention duly to prosecute such appeal in the said court; and one of the masters of the said court, to be nominated for that purpose by the Lord Chief Justice of the said court, shall forthwith enter every appeal of which he shall have received due notice from the appellant as aforesaid, in a book to be kept by him for that purpose."

that section, the appellant was required within the four first days of Michaelmas term, to transmit to the masters the case, as stated by the revising barrister, together with a notice to prosecute the appeal.

The affidavits stated that the case and notice had only arrived from Leeds by that day's post, and that the delay had been merely accidental. [Tindal C. J. referred to sect. 64 of the act (a)1.] The learned serjeant submitted that the statute had been virtually complied with. The appellant is not required to enter the case within the four first days of the term, but merely to transmit it to the masters. The statement was, in fact, transmitted by yesterday's post.

Dowling Serjt., for the respondent, was willing to consent that the appeal should be received and entered. [3] The words of the act are directory, and not compulsory. In the case of Simpson, Appellant, and Wilkinson, Respondent, the court yesterday-the fourth day of the term, granted leave to extend the time for sending the notice to the masters under the sixty-second section, upon an affidavit of the clerk to the agents of the appellant, that the case had been received by that morning's post, but that the notice of prosecution did not accompany the case; and that, as the appellant resided at Peterborough, in Northamptonshire, his signature to the notice could not be obtained in time to file the appeal and give the notice within the time specified.

TINDAL C. J. The sixty-second section of the act requires the case to be transmitted, together with notice of intention to prosecute the appeal, within the first four days of the term. The sixty-fourth section expressly provides that no appeal shall be heard unless the requisite notice has been given. The notice not having been given in this case, the court has no authority to order the appeal to be entered. Possibly a case may arise, where in consequence of circumstances of an inevitable nature having occurred, the court would think it right to interfere; but none such are suggested here. In the case referred to of Simpson, Appellant, and Wilkinson, Respondent, the sixtyfourth section was not brought before the notice of the court. We shall probably have to review that decision (a)2.

(a)1 By sect. 64 it is enacted, "That no appeal or matter of appeal whatsoever shall in any case, except where the conduct and direction of the appeal, or of the answer thereto, shall have been given by order of the court of Common Pleas, or of any judge thereof, to any person, be entertained or heard by the said court, unless notice shall have been given by the appellant to the masters of the said court at the time and in the manner hereinbefore mentioned; and no appeal shall be heard by the said court in any case where the said respondent shall not appear, unless the said appellant shall prove that due notice of his intention to prosecute such appeal was given or sent to the said respondent ten days at least before the day appointed for the hearing of such appeal: provided always, that if it shall appear to the said court that there has not been reasonable time to give or send such notice in any case, it shall be lawful for the said court to postpone the hearing of the appeal in such case, as to the said court shall

seem meet."

(a) Northern Division of the county of Northampton.

Simpson, Appellant; Wilkinson, Respondent.-After the decision in the principal case, the master intimated that this case would be struck out of the list of appeals,

Whereupon Byles Serjt. for the appellant, prayed the court that the appeal might be retained on the list. He distinguished it from the principal case, inasmuch as the statement had been sent within the first four days of term, although the notice had not accompanied it; whereas in the principal case neither had been sent. He submitted, that by the sixty-fourth section a power was reserved to the court to make an order as to the conduct and direction of the appeal. And that by the proviso at the end of that section, the court might postpone the hearing of the appeal where there had not been reasonable time to give or send the requisite notice. The notice was not required by the sixty-second section to be under the hand of the appellant. It was required to be signed by him. A signature by an agent would be sufficient. the affidavit upon which the application had been made might be treated as a notice signed by the agent of the appellant.

Tindal C. J. The proviso at the end of the sixty-fourth section clearly refers to the notice therein last mentioned, which is the notice to the respondent, required to be given ten days before the day appointed for the hearing. The notice to the master is like the delivery of the writ of error with the transcript of the record to the C. P. XII.-15*