his other children out of that, but he gives all the residue of the 20007., except the five guineas, to his wife. But then he has given to his son, John Francis, the Cornwall estates; to his son, David, he has made the devise in question; to Lucy he has bequeathed 3000l., and to Thomasin 1500l.; so that he has given a full satisfaction to his other children for that which he might have appointed out of the 2000l. I think what he had in contemplation as to the satisfaction, was the claim they had in respect of that 2000l. Then he further says, he gives the five guineas to him in lieu of all claims he should have under his marriage settlement, save in regard to the real estates which are settled upon him by his marriage settlement, and over which he has no power. This clause of the will has no reference to the previous devise to Daniel Howell. The matter which the testator had in hand when inserting that clause, had no connection with the devise to David Howell. He is then concerning himself only with the way in which he should deal with the right of his son James to a portion of the 20007. So that the probability is, that the words over which I have no power," were not intended by the testator in any way to influence James. I understand the testator to say, in effect, "I give it him in satisfaction of all claims he may have under my marriage settlement, save in regard to the real estates which are settled upon him by my marriage settlement, and over which I have no power;" that is, "which I cannot prevent his having, or, of which I have no power to deprive him; and I do not affect to exercise such power." If so, the words have no meaning at all (even if read ever so much in juxta-position to or in combination with other devises) which could qualify the devise to David. It has been assumed, in argument, that these words "over which I have no power," are equivalent to an assertion by the testator, that he had no power over the reversion, and 1840. DoE dem. บ. THOMAS. 1840. DoE dem. บ. THOMAS. that therefore that reversion would not pass. Probably it is not necessary to decide that. I am far from thinking that such an assumption is one that ought to be granted. It may very well be, that a person, when he has finished a devise, and has done with it, may, in a subsequent part of his will, make an erroneous assertion on the subject of that prior devise. I think that such erroneous assertion will not have the effect, in any degree, of limiting the devise which has gone before. That was so decided in the well known case of Smith v. Doe dem. Lord Jersey (a), in which it was held, that a positive allegation in a subsequent part of the will, that a certain estate was in the county of Glamorgan, did not limit to the county of Glamorgan the previous devise of the estate by name, but that it might be construed as comprehending property in the county of Brecon. So that if the words had been, "that the testator had no power to devise the reversion in the settled estate," it would not at all follow, because he used inapt words to devise all he could devise, that it was not his intention that those words should prevail in the event of his being mistaken, and his having something more than he knew of, or different from what he supposed. These general words, therefore, may be, and often are, used by persons who draw wills, for the purpose of carrying property, of his power to dispose of which the testator may not at the moment be aware, or respecting which he may not know what the precise nature of his rights are. Therefore I think, on the whole, notwithstanding the great number of authorities which have been cited on both sides, that the clear intention of the testator is to be gathered from the will itself; and that this intention was, that every thing should pass to the devisee (a) 2 Brod. & Bingh. 473., 5 B. Moore, 332. and see Doe, dem. Douglas v. Lock, 4 Nev. & M. 815., 2 Ad. & Ell. 705. which could pass under the terms of the second devise, and that the reversion passed also. (a) The question of nonsuit, upon the construction of the will, being disposed of, the defendant's counsel applied to be heard upon the application for a new trial on the ground of the improper reception of evidence, namely, the statement by the witness Good, that in his early days he had been a land surveyor, and that many years ago a person called upon him, stating that he was sent by Mrs. Howell, and that Mrs. Howell wished him to make a map of the lands, and that he received such and such information, which statement as to information derived from a person not called, was alleged to have been inad missible. On the part of the plaintiff it was admitted that this statement, if received in evidence, had been improperly received; but the counsel for the plaintiff refused to allow this question to be decided, as proposed on the part of the defendant, by the notes of the counsel on both sides, saying, that as no doubt really existed as to the identity of the property, they claimed their right to have this point decided by the notes of the learned judge. On the part of the defendant it was stated that the Court of Exchequer had acted upon the notes of counsel, in a case where the notes on both sides differed from that taken by the learned judge. (a) And see Bac. Abr. tit. Legacies and Devises (L. 2.); 8 Vin. Abr. 273.; 10 Bythewood's Conveyancing, by Jarman, 159. 285., 3 Mod. 229., Carthew, So a devise of lands "not before devised," Rooke V. Rooke, 2 Vern. 461., 1 Equity Cases Abridged, 210.; or, of lands "not before disposed of," Willows v. Lydcot, 2 Ventr. 1840. DoE dem. บ. THOMAS. 1840. Doe dem. ย. THOMAS. 13th June. On a subsequent day, Erskine J. stated that he had seen Gurney B. who informed him, that the evidence (a) was not received, and did not go to the jury; and that besides the evidence which he had reported, he having only reported the evidence bearing upon the particular point on which the motion had been made,— there was other evidence upon which the jury were well warranted in finding a verdict for the plaintiff. (6) (a) Meaning, probably, the evidence of agency derived from Good's statement, as to his being employed by a person describing himself as agent to Mrs. Howell in mapping the estate. In the report of the learned judge it was stated, that he at first refused to receive the map made by the witness Good in, evidence; but that Mr. Evans said, "I offer it in evidence thus: - I have proved that in 1790 the agent of Mr. Howell employed Good to make this map, and that the premises, at that time so mapped, are those belonging to the defendant." Upon which Mr. B. Gurney reports that he said, "I do not see how the map would advance the case; but the witness Good has given the map as correctly describing the premises; and, therefore, I admit it." (b) So in Doe, dem. Lord Teynham v. Tyler, 6 Bingh. Rule discharged. 561., 4 M. & P. 377., this Court held, that it was not a ground for granting a new trial, that evidence had been admitted which ought to have been rejected, if, exclusive of such evidence, there were enough to warrant the finding of the jury. But in the more recent case of The Baron de Rützen and Wife v. Farr (a case also tried before the same learned judge in Pembrokeshire) 5 Nev. & M. 617., 4 Ad. & Ell. 53., the Court of King's Bench held, that the alleged immateriality, of evidence improperly admitted, was not a ground for refusing a new trial, unless the court were able to see that the evidence had not weighed with the jury in forming their 'opinion, or that an opposite verdict, given upon the remainder of the evidence in the cause, must necessarily have been set aside as being a verdict against evidence. 1840. VAUGHTON V. BRINE, BAILEY, and THORNE. June 1. ASSUMPSIT, for the work and services of the plain- A resolution of an unincorporated asupon their retainer, and at their request. Plea, non sociation, assumpsit. By his particulars of demand, the plain- signed by the tiff claimed 201. for four weeks' salary, from the 18th September to the 16th October 1839, as clerk and secretary to the defendants. tiff as clerk and secretary to and for the defendants, At the trial, before the undersheriff of Middlesex, in December last, the two first-named defendants alone parties mak ing it, for the appointment of an individual to the office of secretary to the association appeared to defend. The following agreement (which for a spewas duly stamped), dated the 5th June 1839, and signed cified period by the three defendants, was given in evidence on the part of the plaintiff. at a weekly salary, is not an agreement dum of an agreement, 1 requiring a stamp, within 55 G. 3. "We, the undersigned, forming the provisional com- or memoranmittee of a projected association of persons intended to be called 'The Brighton and Sussex Zoological Association,' having, in order to carry into effect the intention of the said association, entered into articles of c. 184. agreement with the Norwich Union Assurance Company for the purchase of certain premises situate at Brighton, and known as Ireland's Gardens, do hereby acknowledge the past services of John Vaughton in canvassing for, negotiating, and generally assisting in the preliminary business of and connected with, the said Association; and, in consideration of such past services, do hereby, for ourselves jointly and severally, undertake and agree to appoint the said John Vaughton to the office of secretary to the said association, to be held by him so long as we shall be in the direction and controul |