Lucy Bacon afterwards died without issue, and that no descendant of Jemima can now be found; that the barony has therefore either devolved absolutely upon the claimant, or, if there be in existence any undiscovered descendants of Jemima Duke, then that it is in abeyance between the claimant and them.

The Solicitor-General (Sir F. THESIGER). This is the first occasion upon which I have had the honour to attend your Lordships in this case. I have very carefully looked over the evidence in proof of the pedigree, and it appears to me to be entirely satisfactory. I am told, also, that the present Lord Chief Baron (Sir F. POLLOCK), who has watched the whole of these proceedings before your Lordships when he was Attorney-General, is satisfied that the pedigree is proved.

It was necessary for the claimant to make out, in the first place, that this was a barony in fee, and I think that is established from the proof which has been given that upon two occasions the title devolved upon parties through females. The first instance was through Elizabeth, the only child of the seventh Lord Fitzwalter, by whom it came to the Ratcliffes, and afterwards to the Mildmays through Lady Frances Ratcliffe. Therefore I apprehend there is no doubt *956 whatever that it is a barony of the description contended for by the claimant. I think that is also proved by the proceedings in your Lordships' House upon the claim of Benjamin Mildmay in 1667, 1668, and 1669. Indeed I think the claimant might have almost commenced his evidence from those proceedings; but he has gone further, and proved the creation of the title in the reign of Edw. 1, and he has, I think, deduced it clearly down to Benjamin Mildmay, who established the claim in 1669. There is no doubt whatever that that claim was in respect of the title which was created in the reign of Edw. 1, for that is proved by the subsequent proceedings in this case, which ultimately resolved themselves into this, that he consented to take his seat in your Lordships' House as the junior baron of the reign of Edw. 1. I apprehend, therefore, that up to that point there is no difficulty whatever.

The title fell into abeyance in the year 1756, upon the death of Benjamin Mildmay, among the coheirs of Mary Mildmay, who was the sister of that Benjamin Mildmay who succeeded in establishing his title in 1669. I do not think the claimant has given very satisfactory evidence to account for the long abeyance, such as your Lordships generally require. The title fell into abeyance eighty-eight years ago, and there is no account given why it was permitted to remain so long dormant. That is an observation which I feel it my duty to throw out for your Lordships' consideration.

The only other part to which I would draw your Lordships' attention is the evidence with regard to the branch of the Gardiners. Your Lordships observe that Lucy Mildmay, Mrs.

*

Gardiner, is the eldest sister of the claimant's ancestor, *957 Frances Mildmay, Mrs. Fowler. It is important that he should satisfactorily account for that branch: I will not trespass upon your Lordships' time by adverting to the evidence on that subject. It will be for your Lordships to say whether it is satisfactory; whether the parties have used due diligence, and have resorted to the proper means for the purpose of discovering evidence for the extinction of that, the Gardiners', branch of the family. I do not mean to say that they have not done so: I merely throw it out for your Lordships' consideration whether it is satisfactory. It is difficult, perhaps, to trace a family which has fallen into decay, and appears to have emigrated; but still the result would be that the claimant, if that branch is extinct, would be the sole heir; if not, a coheir.

THE LORD CHANCELLOR.-I think the descendants of Jemima and Robert Duke are not sufficiently accounted for.

Mr. Wigram. We do not conclusively prove their extinction.

THE LORD CHANCELLOR. -The probability is that some are in existence; whether they can be found or not, is another question. What do you say as to the observation made by the Solicitor-General, that you have not sufficiently accounted

for the time that has elapsed since the barony first fell into abeyance?

Mr. Wigram.-I do not apprehend that that ought to be an objection: the barony fell into abeyance in 1756. There are cases in which claims have been sustained after an abeyance of upwards of 100 years. (a) It * may have * 958 been that none of the persons entitled at any time since 1756 to this barony was in possession of means which would make him aspire to a seat in your Lordships' House. I may add, that the grandmother of the claimant, Dame Fanny Bridges, lived till 1825, so that there has been scarcely any default in making the claim; for a female would not be so anxious for the dignity as a male heir.

THE LORD CHANCELLOR.

Then you claim as one of the coheirs. What are the terms of your claim?

Mr. Wigram. That the barony fell into abeyance upon the death of Benjamin Mildmay in 1756, between Dame Fanny Bridges, Dame Lucy Bacon, and Mrs. Jemima Duke, as the then coheirs of Mary Mildmay. We have shown that Dame Lucy Bacon died without issue; so that, assuming that Jemima Duke had issue, we say the barony is now in abeyance between the claimant and her descendants, if any there be.

THE LORD CHANCELLOR.I think that case is made out satisfactorily. It appears to me, my Lords, that the claimant has satisfactorily shown that the barony is in abeyance between himself and the descendants, if any, of Jemima Duke: therefore, that his claim is established only so far as his being one of the coheirs.

(a) The barony of Vaux of Harrowden was in abeyance from 1663 to 1838 vide ante, Vol. V., p. 526; the Braye barony, from 1557 to 1839; the Camoys, from 1427 to 1840; the Beaumont, from 1509 to 1840 vide ante, Vol. VI., pp. 757, 789, and 868: and the Hastings barony was in abeyance from 1540, if not from 1389, to 1840 vide ante, Vol. VIII., p. 144.

:

The Committee resolved accordingly, that the barony of Fitzwalter is now in abeyance between the petitioner, Sir Brook William Bridges, Bart., as grandson and heir of Dame Fanny Bridges, and the descendants (if any) of Jemima Duke; and the chairman was directed to report the resolution to the House.

[ 806 ]

A private person is not justified in arresting, or giving in charge of
a policeman, without a warrant, a party who has been engaged
in an affray, unless the affray is still continuing, or there is reason-
able ground for apprehending that he intends to renew it.
Price v. Seeley, 28.

BOND OF SURETY.

A party became surety in a bond for the fidelity of a commission agent
to his employers. After some time the employers discovered
irregularities in the agent's accounts, and put the bond in suit.
The surety then instituted a suit to avoid the bond, on the
ground of concealment, by the employers, of material circum-
stances affecting the agent's credit prior to the date of the bond,
and which, if communicated to the surety, would have prevented
him from undertaking the obligation. On the trial of an issue
whether the surety was induced to sign the bond by undue con-
cealment or deception on the part of the employers, the presiding
Judge directed the jury, that the concealment, to be undue,
must be wilful and intentional, with a view to the advantages
the employers were thereby to gain.

Held by the Lords (reversing the judgment of the Court of Session),
that the direction was wrong in point of law.

Mere non-communication of circumstances affecting the situation of
the parties, material for the surety to know, and within the
knowledge of a person obtaining a surety-bond, though not wil-
ful or intentional, or with a view to any advantage to himself, is
undue concealment, and will release the surety.
- Railton v.
Mathews, 936.

CHANCERY. See JURISDICTION.

*CHARITY.

-

960

A testator gave the residue of his estate to an incorporated company
in the city of London, upon trust, to apply one moiety of the
income to the redemption of British slaves in Turkey and Bar-