and the less so, after the offer he made to the applicant of a mitigated confinement if proper security were given for the defendant's debts.

Rule discharged.

MASON, Demandant; SADLER, Tenant. Nor. 24.

Demandant having omitted to proceed to trial pursuant to notice, in a writ of right the Court allowed judgment to be entered as in case of a nonsuit, holding insufficient the excuse of the demandant's attorney, that he did not know till too late, that the knighữ ought, under the circumstances, to have been re-sworn.

In this writ of right issue was joined on the 17th of July, 1834, and the grand assize was sworn at the Guilford assizes, the 31st of July, 1834. Notice of trial was given for the Summer assizes, 1835; but the demandant having omitted to proceed,

Channell, obtained a rule nisi for entering up judgment as in case of a DOGsuit against which,

S. B. Harrison, who shewed cause, advanced as an excuse for not proceeding to trial, that the demandant's attorney had discovered, when it was too late, that the knights ought to have been resworn at the Spring assizes, 1835.

THE COURT held this excuse insufficient; but expressing some doubt whether the statute 14 G. 2, c. 15, which provides for entering judgment as in case of a nonsuit, extends to writs of right, (sen Denman v. Bull, 3 Bingh. 499.)

Channell, referred to Almgill v. Bradshaw, 1 B. & P. 103, and Newman t. Goodman, 2 W. Bl. 1093, as authorities in point.

*PER CURIAM. It seems in some degree doubtful. But as the matter will appear on record, the rule may be

Absolute.

FINCH v. BROOK. Nov. 24.

In debt for goods sold, plea nil debet except as to 11. 12s. 5d., and as to that a tender; the jury in a county court having found that the defendant did not owe any thing except as to the 17. 128. 5d., and as to that, certain facts upon which they prayed the judgment of the Court, which was given for the defendant in the Court below, and reversed on error, Held, that upon plaintiff releasing damages the Court of Error might enter judgment for the plaintiff for 17. 12s. 5d., with the costs of the proceeding in the Court below.

To debt in the county Court of Cambridgeshire, the defendant pleaded nil debet except as to 17. 11s. 5d., parcel of the demand, and as to that sum a tender. Upon issue joined, the jury found that the defendant did not owe any part of the money demanded, except as to 17. 12s. 5d., parcel of the demand, and as to that sum, an offer, upon which they prayed the advice of the Court, being ignorant whether or not it amounted to a tender.

The Court below gave judgment for the defendant; but that judgment having been reversed on error, by this Court, who held that the offer described in the special verdict did not amount to a tender, (see 1 New Cases, 253,)

Stephen, Serjt., obtained a rule, calling on the defendant to shew cause why judgment should not be entered up for the plaintiff with his costs in the Court below, and why the prothonotary should not tax those costs. He relied on Gildart v. Gladstone, 12 East, 668, where, upon a special verdict in assumpsit, judgment having been given in the Court of Common Pleas for the plaintiffs below, which judgment was reversed upon error in the Court of King's Bench,

it was held that the defendant below was entitled *in the Court of Er*325] ror, not only to judgment of acquittal but also to the costs of his defence in the Court below; being the same judgment which the Court below ought to have given.

Butt, shewed cause. Upon a writ of false judgment this Court has no jurisdiction to enter up judgment for costs in the court below; for there is no removal of an original record on which the judgment might be entered, but a mere transcript of the proceedings. Even if the Court have the jurisdiction, they can only exercise it where there is a finding by the jury to warrant the judgment required. The Court can only give the same judgment as the court below had authority to give; Denn d. Mellor v. Moore, 1 B. & P. 30. But the court below could not supply the want of a finding by the jury. Here, if the jury can be taken to have found that there was no tender, that is the whole of their finding: they have not found any precise sum to be due to the plaintiff, nor is there even a finding in the alternative of nominal damages for the detention of any debt. Without such a finding, there is no fact on record to warrant a judgment for the plaintiff. The court cannot intend that any debt is found to be due. [TINDAL, C. J. If it is a necessary intendment we are bound to make it.] In Gildart v. Gladstone there was finding in the alternative for the defendant. [TINDAL, C. J. Here there is an alternative, though not in the usual form.] In Denn d. Mellor v. Moore, the Court left the party to enter up judgment at his own risk. Here there is no finding for the plaintiff, and if the Court supply a finding, the judgment will be ill on error.

TINDAL, C. J. It appears to me on general principles and on the authority *326] of Gildart v. Gladstone, that *this Court is bound to give such judgment

on a writ of false judgment as the justice of the case requires: and the only question now is, whether this record is in such a state that we can give judgment for the sum which is admitted to be due. The plaintiff demands a sum for the price of goods sold. The defendant pleads nil debet except as to 11. 12s. 5d., parcel of the demand, and as to that sum a tender; and the jury find that the defendant does not owe any part of the money demanded except as to the sum of 17. 12s. 5d., and as to that sum an offer made by the defendant's attorney under the special circumstances found by the jury: leaving the Court to decide whether or not the facts stated amount to a tender. The question came before this Court upon a writ of false judgment, and upon the argument then heard, we thought the facts stated did not shew a tender. The case, therefore, stands thus; that as to all the demand, except as to 17. 12s. 5d., nothing is due; and that as to 17. 12s. 5d., which is admitted to be due unless there has been a tender, there has been no tender.

In

It is objected that the jury have not found the 17. 12s. 5d. to be due. The answer is, that there was no occasion for such a finding, the existence of the debt, if there was no tender, being admitted on record. I agree that in strict form the jury should have found Is. nominal damages for detention of the debt, but the omission to find damages and costs may be aided by a release. Bentham's case, 11 Rep. 56 a, Marsh brought a writ of annuity against Bentham, and the parties came to issue, which was tried for the plaintiff, and found the arrearages, &c., but the jury did not assess any damage or costs; which verdict wis imperfect, and could not be supplied by writ of inquiry of damages; but the plaintiff released his damages and costs; and thereupon had judgment; *327] upon which the defendant *brought a writ of error, and assigned the error aforesaid, scil. the insufficiency of the verdict: sed judicium affirmatur, because the plaintiff had released his damages and costs, which was for the defendant's benefit: and the same position is to be found in 2 Roll. Abr. 722, 1. 30.

If therefore the plaintiff will release the damages of 1s. there is a perfect finding on this record involving a necessary intendment that 17. 12s. 5d. is due to

the plaintiff. If on a plea of nil debet the jury had merely found that a certain sum was owing from the defendant, without any further finding for the plaintiff, perhaps the Court would not have interfered; but here where the defendant has admitted the plaintiff to be entitled to a certain sum if there were no tender, and the finding of the jury established that there was no tender, I think we may direct judgment to be entered up for the amount, the plaintiff releasing the damages. PARK, J. concurred.

GASELEE, J. It appears to me that the record is perfect. It commences with a declaration for a certain debt; the defendant says that as to all but 17. 12s. 5d. he is not indebted; and as to the 17. 12s. 5d. alleges a tender. The jury nega tive the existence of any debt beyond the 17. 12s. 5d., and find special circumstances with respect to the tender of that sum. The Court have decided that, under these circumstances, there was no tender; a sum of 17. 12s. 5d., there fore is admitted on record to be due, and for that sum the plaintiff is entitled to judgment.

BOSANQUET, J. The simple question on this record was, whether there had been any tender of the 17. 12s. 5d., which was admitted to be due unless a tender had been *made: the rest of the claim was denied. The Court were

of opinion that, upon the facts found, there had been no tender; conse- [*328 quently it stands admitted on the record that a sum of 17. 12s. 5d. is due to the plaintiff, and to that extent there must be judgment for the plaintiff. Rule discharged.

PEARCE v. VINCENT and Others. And

WILCOX and Others v. VINCENT and Others. June 12.

Lands were devised to T. P. for life, with power to make an appointment in fee to such person of the name of Pearce, as T. P. should adopt; also to grant leases for seven years; in default of appointment, remainder in fee to the next and nearest of kin of testator at the time of his death. At that time T. P. a first cousin of the testator, was also his nearest of kin, and he made no appointment under the will. The testator had other first cousins, but they were the children of younger brothers of T. P.'s father: Held, that the ultimate limitation in fee vested in T. P.

By order of the master of the Rolls, the following case (having already been argued in the Court of Exchequer, see 1 Cro. & Mee. 509,) was submitted for the opinion of this Court:

Richard Pearce, the testator in this cause, being at the date of his will hereinafter stated, and thence until and at the time of his decease, seised in fee of certain freehold and copyhold estates in the counties of Hertford and Leicester, and at Westminster, and Rushden in the county of Northampton, by will bearing date the 30th of March, 1813, duly executed and attested, gave, devised and bequeathed such freehold and copyhold estates at Westminster and Rushden unto his cousin, Thomas Pearce, *his heirs and assigns, upon trust [*329 to sell and dispose of the same and apply the money arising from such sale in payment of debts and legacies in aid of his personal estates; and gave the surplus of such purchase moneys, if any, unto his said cousin, T. Pearce, his executors, administrators, and assigns, to and for his and their own use and benefit: and the testator devised to Mary Heygate during her natural life one clear yearly annuity of 2007., to be issuing and payable out of all and every his freehold and copyhold estates not therein before by him devised to his said cousin T. Pearce :

And subject to the payment of the said annuity, and all and every other annuity contained in that his will, or any codicil to be added thereto, and also under and subject to the directions, payments, powers, and provisos, conditions,

and declarations thereinafter expressed and contained concerning the same, the testator gave, devised, and bequeathed his manors in the counties of Hertford and Northampton, and also all and every his lands, real estates, and hereditaments, both freehold and copyhold, situate and being in the several counties of Hertford, Leicester and Northampton (except the Westminster and Rushden estates before devised, and the advowson of the church or rectory of Husband's Bosworth in the will mentioned, and the presentation thereto), or elsewhere the same might be situated, unto his said cousin T. Pearce and his assigns for and during the term of his life:

And the testator gave, devised, and bequeathed all his said manors and his advowson of the parish church or rectory of Husband's Bosworth aforesaid, with its appurtenances, and all his lands and hereditaments, situate in the said counties of Hertford, Leicester, and Northampton, and elsewhere, with their appurtenances, and all his stocks, funds, and securities for money, and all and *330] *singular other his real and personal estate (save and except as thereinafter, or by any codicil to be added to his said will, was especially bequeathed or mentioned,) and also all his copyhold lands and hereditaments, situate in the said several counties or wheresoever else the same might be situate (except the Westminster and Rushden estates therein devised),-subject, nevertheless, to the life estate therein before given to his said cousin T. Pearce of and in the said manors and manorial rights, lands, hereditaments, freehold and copyhold estates, and to the payment of the said annuity of 2007. to Mary Heygate, and of all and every other annuity contained in that his will or any codicil to be added thereto,-to the uses, upon the trusts, and for the intents and purposes, and with, under, and subject to the powers, provisos, conditions declarations, and agreements thereinafter mentioned, expressed, and declared, and hereinafter stated:

And in case such person as thereinafter was mentioned, as the testator's cousin T. Pearce should approve of or adopt, should be under the age of twenty-one years at the decease of the testator's cousin T. Pearce, the testator gave an annual sum of 2007., to be applied for and towards the maintenance and education of any person being a male relation of the testator, of the name of Pearce, whom the said T. Pearce should approve of and adopt, and should signify the same in writing under his hand,-which the testator did thereby authorise and direct the said T. Pearce to do as soon after the testator's decease as he could, conveniently,—from the time of his said cousin T. Pearce's decease, until such person should have attained the age of twenty-one years:

And from and after the decease of the testator's cousin T. Pearce, the testator devises all and singular the said premises, as well his real estate as personal as *3311 *all accumulations thereof, to such of the testator's relations of the name of Pearce (being a male) as his cousin T. Pearce should by any deed or writing, signed by him in the presence of two subscribing witnesses, or by his last will and testament in writing by him to be executed in the presence of three or more credible witnesses, give, devise, or bequeath or nominate or appoint the same to; and in default of any such gift, devise, bequest, or nomination, or appointment by the testator's cousin T. Pearce, to or in favour of any such male relation of the testator, of the name of Pearce as aforesaid, then the testator devised the said estates and premises to such of the testator's relations of the name of Pearce, being a male, as the said T. Pearce should approve of or adopt for the purposes of education as aforesaid, if he should be living at the time of the decease of the testator's cousin T. Pearce, and his heirs, executors, administrators, and assigns for ever.

And in case the testator's cousin T. Pearce should not have approved or adopted any such male relation of the testator, as aforesaid, or in case he should have made such approval or adoption of any such male relation of the testator, and there should not be any such male relation living at the time of the decease of the testator's cousin T. Pearce, then the testator devised the said estates and

premises unto the next and nearest relation or nearest of kin of the testator of the name of Pearce, being a male or the elder of such male relations in case there should be more than one of equal degree, who should be living at the testa tor's decease, his heirs, executors, administrators, and assigns, for ever: and as to the testator's advowson or rectory of Husband's Bosworth, the testator gave the first and next presentation to the same rectory which should happen after his decease unto certain persons therein mentioned in succession; and in case none of them should choose to present themselves or declare their intention of so doing by the time allowed them as therein mentioned or should refuse the same, such refusal to be declared as therein mentioned, then the testator directed that the presentation to his rectory or living of Husband's Bosworth should at all times go and belong to his cousin T. Pearce, whenever the said rectory should become vacant, to present to at all times during the life of the said T. Pearce.

The testator gave all his plate, books, and pictures, household goods, bec bedding, linen, and household furniture at Husband's Bosworth and Stanwick, in his will mentioned, or elsewhere, to his executors, in trust to permit and suffer his cousin T. Pearce to have, use, and enjoy the same during his life, and after his decease then in trust for the person who should succeed to or inheri the testator's real estates under and by virtue of his will:

[*333

And the testator declared his mind and will to be, and he did thereby order and direct his cousin T. Pearce to pay and apply so much of the rents and proits of the said estates so given, devised, and bequeathed by the testator, to him, for his life as aforesaid, not exceeding the annual sum of 2007., as he in his julg ment and discretion should think proper, for and towards the maintenance and education of such person, being a male re lation of the testator, of the name of Pearce, whom his cousin should approve of and adopt in manner aforesaid, in case such male relation should, at the time of his adoption by the testator's cousin, be a minor under age, until such person should have attained his age of twenty-one years; and to lay out and invest the residue of the said annual sum of 2007., (not expended in such maintenance and education) at interest, to accumulate in the name of the testator's cousin T. Pearce, in some of the public funds, or upon government or real securities, during the *minority of such male relation of the name of Pearce; and the testator declared and directed that his cousin T. Pearce, his executors and administrators, should stand seised of such accumulations, in trust for the benefit of such male rela tion of the name of Pearce, and the same, with the dividends and interest, should be assigned to him at such times and in such proportions after he should have attained his age of twenty-one years as the testator's cousin T. Pearce, his executors or administrators, should think most to his advantage; and in case of his death before attaining twenty-one years of age, then in trust for the benefit of such male relation of the testator of the name of Pearce as should, upon the decease of the testator's cousin become entitled to the testator's estates by virtue of his will and in case such male relation of the testator, of the name of Pearce, so approved of and adopted by his cousin T. Pearce as aforesaid, should, in the lifetime of his cousin, attain twenty-one years of age, then the testator willed and directed his cousin, during his life, to pay and allow out of the rents and profits of the estates so devised to him for his life as aforesaid, unto such male relation from the time of his attaining the age of twenty-one years, the whole of the said annual sum of 2007. :

Provided also, and the testator declared, that it should be lawful for, and he did thereby authorise and empower his said cousin to demise or lease all or any part of his said manors, farms, lands, and tenements for any term or number of years, not exceeding seven years, to take effect in possession, and at the best and most improved annual rent presently payable, and without taking any fine or premium as therein mentioned.