Mr. Clarke and Mr. Leith, were for the plaintiff.
Upon the case being called on, the plaintiff took his
judgment as of course, the demand being thus admitted.
Judgment of assets quando acciderint.—Hurkaru,titled to recover on both of the bills,
March 9.

plaintff's witnesses, that the defendant and his brothers
were joint in food, and partners in trade.

MONDAY, MARCH 11.

SOMERS V. HASTIE.

The Advocate-General shewed cause against the order for enlarging the commission to examine wit pesses in England in this suit.

Sir E. Ryan said, that one month further time would be allowed, on payment of costs.

Order absolute to enlarge the time one month, on payment of costs.-Hurk., March 12.

The Court were of opinion that the plaintiff was en

Verdict for the plaintiff, Co.'s Rs. 1,250, with interest -Hurkaru, March 13.

THURSDAY, MARCH 14.

THOMAS SANDES V. AGA KURBOOLIE MAHOMED. Mr. Clarke and Mr. Cochrane showed cause against Mr. Prinsep supported the order. One of the wit the rule nisi obtained in the early part of this term for nesses to be examined, Mr. John Hastie, was in a setting aside the verdict for the plaintiff, and entering a very precarious state of health when the last accounts nonsuit instead, or reducing the amount of damages. arrived from England, and indeed had not been ex- Some of the bills of costs which were the subject matpected to recover at all. The attornies for the de-ter of the action, were in the name of T. Sandes alone, fendant, Messrs. Wight and Boyle, were in daily some in the name of Hogg and Sandes, and some in expectation of hearing upon the subject from their the name of C. Hogg alone; there were also items for partner in England, Mr. Wight, and he should only conveyancing which were objected to, as not being ask for a month at present, and if it became necessary, taxed. The objection to the plaintiff's right to recover he should renew the application. upon the bills made out in the name of Messrs. Hogg and Sandes, was that Hogg ought to have been joined as co-plaintiff, and the objection to the right to recover for the bills in Hogg's name, was that Hogg himself and not Sandes, ought to have brought the action. But the plaintiff had abandoned his claim upon all the bills which became due, during the actual continuance of the partnership, and the mere using the name of Hogg as a nominal member of the firm, after his interest had entirely ceased, did not make him a necessary party. The case of Guidon versus Robison, 2 Campb. Rep., had been cited by the other side, in support of the post. tion that an ostensible partner must be joined as a CoMr. Sandes opened the pleadings. plaintiff with the real partners. This was in point, no Mr. Leith stated, that this was an action to recover doubt, but in fact it has been since overruled. Chitty the amount of two hondees or bills of exchange for rupees in the 1st vol. Pleadings, says, that this question was one 650 and rupees 600 respectively, of which one Dabey of some difficulty, though now clearly established, and Persaud Dutt was the drawer and the defendant the he cites this very case under a sed vide. The cases of acceptor per procuration. To counts on the bills, were Glossop v. Colman, I Sta kie, Teed v. Elworthy, 14 East, added a count for money had and received. The de- and Kell v. Nainby 10 Barn, and Cress., are clearly the fendant pleaded to the former that he did not accept, other way, and establish that it is competent for the and to the latter, the general issue. It would be proved plaintiff to give evidence that one who appears as a that one of the defendant's brothers had written the ac-partner is not really interested in the partnership. ceptance to one of the bills, and another brother to the learned counsel were then proceeding to contend that other bill, and that the defendant had authorized them conveyancing items were not taxable, when the Advoto accept by procuration, that they were members of a cate General intimated, that he had no intention of joint family, and partners in the same cootie. contesting that point.]

TUESDAY, MARCH 12, 1839.

COSSINAUTH PAUL versus ROGONAUTH PAUL.

both of the bills.

Mr. Prinsep appeared alone for the defence, and submitted that the plaintiff's Counsel had adopted a very circuitous and inconclusive mode of proving so simple a matter as an acceptance to a mercantile instrument. The learned Counsel accordingly addressed the Court in the first instance for a nonsuit, contending that the plaintiff bad wholly failed to make out his case!

The

а

Several witnesses were called by the plaintiff, and The Advocate-General and Mr. Prinsep, for the they deposed to the fact of the acceptance and of the defendants, in support of the rule. The cases cited by authority given by the defendant. The acceptance to the other side, are not applicable to this, because the one of the bills was proved to have been written in the sole question here is, with whom was the contract made. presence of the defendant himself. The proof, with In this country, the warrant to sue, which is indispenrespect to the other, was not so distinct, but it appeared sably necessary to authorize the attorney or attornies to that defendant and his brothers were in partnership. and act, constitutes the foundation of the express contract that he had subsequently acknowledged his liability on between the client and the a torney. In England it is otherwise,-because there, nothing more than a written, retainer is ever given, and in most cases not even retainer or written authority of any kind, so that the contract is only implied. The question, therefore, is, in vhose names are the warrants of attorney? if they are in the name of Hogg, how can this possibly authorize sandes to act or enable him to recover for his services ? But another consideration arises; how did the dissolution of paatnership take place? Was it advertised in the Gazettes, and confirmed by a deed of dissolution-and did the client, who had entrusted the conduct of his suit, to the charge of the firm jointly, assent to its transfer over to the charge of a single partner? The question is not a mere technical one, nor is the objection founded upon a principle which does not affect the merits of the case; for the defendant may have a ground of set off against the omitted partner or against the joint firm, which would not be available against the plaintiff suing one.

Sir E. Ryan said, that whether probable or improbable, there was clearly evidence to go to the Jury.

Mr. Prinsep then said, that he would go into his case, and he was instructed that he should be able to disprove altogether the alleged joint trading and dealing between the defendant and his brothers, and to shew that by whomsoever the acceptances in question were written, they were altogether unauthorized by the defendant.

The first and only witness, however, called by the learned Counsel, corroboratad the statement of the

The Court, at the close of the argument, intimated plaintiff's case altogether; but we did not believe them. their intention to look into the authorities, and give Now the affidavits which have been put in since, tend judgment at a future day.

DOE D. O'HANLON AND ANOTher v. paliOLOGUS, This is a "special case," the argument of which was appointed for this day, but it was postponed until Mon-of the locus in quo is established by the record in the

E. MACNAGHTEN, RECEIVER, &c. v. PROSONGCOOMAR decree was male, or some ulterior proceedings had, there

Mr. Clarke appled for further time to enable the defendant to put in his anwer, to the bill filed by the receiver of the estate of Ladleymobun Tagore deceased. The defendant had been absent in Jessore, and had found it necessary to refer certain papers and documents,ference as far as regarded the conscience of the Court, to instruct his solicitor in the preparation of his answer. Mr. Prinsep opposed the application; a month had been already given, in addition to the usual two mouths allowed by the practice of the Court.

was a

mere whimsical fallacy to say, that the ap- payee and indorser, and the plaintiff the indorsee and pellant was not aggrieved by the order fusing a holder. The defendant had pleaded a special plea, new trial, and that the Court could not necessarily rather curiously worded, to the effect that the note had decree in consonance with the verdict at law, pro-been delivered to the payee for a special purpose only Douuced in the issue which had been expressly di(the settlement of a certain suit between him and one rected in supplemental aid of the proceeding in equity! Rajjub Ally), which had never been accomplished, and The minute of their Lordships, disallowing appeals that the plaintiff had notice of this circumstance, and against verdicts, did not touch this application, but was ook the note without waluable consideration. There strictly consistent with it; for this was not an appeal were also money counts, to which the general issue was against a verdict, but from a distinct and substantive pleaded. order of the Court upon the Equity side. The minute of the Court runs thus: "We are of opinion, notwith

Mr. Leith, for the plaintiff, submitted, that upon that the defendant, therefore, must begin. Bills of ex, these pleadings, the issue was upon the defendant, and change and promissory notes prima facie import due the consideration, and thus discharge his liability, the consideration, and if the defendant attempts to impeach onus of proof rests upon him. This had been repeatedly decided in a recent case. Edward v. Jones, 7 Carr. and Payne 633. Mills v. Barber, 1 Mecs. and Welsby 425, Mills v. Oddy, 2 Cr, Mees and Roscoe 103.

The Advocate-General apprehended, that at all events, the other courts must be abandoned by the plaintiff bes fore he could call upon the defendant to begin.

standing the case of Woomeschunder Paul Chowdry, Sreemutty Woojal money Dossee, in Clarke's Rules p.172, that no petition of appeal against a verdict can be allowed. The appeal is directed to be by persons aggrieved by any judgment, decree, order, or rule of the Court;-words, which clearly do not comprehend the mere finding of a verdict, whether it be on the coinmon law side of the Court, and afterwards to be carrte l into effect by a judgment, or (as in the case cited) upon an issue directed to inform the Court sitting in Equity, whit decree or order it is to pronounce. It is not certain that the judgment, decree or order, will correspond with the finding, but if it does, the effect of an appeal against the verdict, is obtained by an appeal against the judgment Sir E. Ryan, decided upon the authority of Mills v. or ORDER founded upon it; for all the evidence and pro- Oddy, that the issue was clearly upon the defendant, and ceedings had in the cause appealed, are to be transmit. that he ought to begin. The general issue being plead, ted to the Privy Council, and they have therefore the ed to the money counts, did not alter the cases, but of fullest opportunity of deciding on the correctness of the course upon those counts the plaintiff would be preclud verdict. This view of the question is strongly cored from giving any evidence. His Lordship laughingly roborated by the provisions an to security in which it is observed, that the right to begin was claimed, in the Jeft to the discretion of the Court to direct the judgment, Cises cited, as a privilege, but here the defendant seemed decree, rule or order, to be carried into execution, or that particularly anxious to concede his right to the plaintiff ! suficient security should be given for the performance The Advocate-General (with whom was Mr. Prinsep thereof, a provision which can have no application to for the delence) then adressed the Court. It was ces Cases, where no acts of the Court direct any thing to be tainly extremely questionable in the present instance done, which is the case with the mere finding of a verdict, whether the right to begin, would prove a very valuable until it is carried into act by the judgment, decree, or privilege, but he should, nevertheless, state, without re arder of the Court. We are also of opinion, that no serve, the facts which constituted the defence upon which petition of appeal ought to contain any statement of the his clieut relied. At the time the note in question was observations made by Judges, and that if these are stated at all, it is competent for the Court to reform the petition agreement between him and the defendant, that it was given to Shaik Sheriff, there was a contemporanequa by directing the statement to be omitted. The only not to be enforced unless a certain litigation then pend ground of appeal is, that the result is wrong, and this can ing between the defendant and one Rajjub Ally, should be only depend on the pleadings and evidence, and not at favourably adjusted through the agency of the said Snaik all on the arguments used by the Court, which ought Sheriff, the payee. This litigation was not adjusted, and not therefore to be stated as grounds of appeal. We think it desirable that Judges should exercise the power Shark Sheriff, in breach of his agreement, chose to ne. the condition, therefore, remained uncomplied with, yet of reforming petitions of appeal themselves, and not refer gotiate the instrument and indorsed it to the plaintiff; them to the Master, for impertinence. And we think, in such an agreement certainly would not affect an innocent any case of appeal, they ought, at the request of either ant bona fide holder, but he (the learned counsel) was party, to furnish the parties with the statement in writing instructed that the plaintiff had full knowledge of all the of their reasons for the decision they have formed, so as circunstances, and, moreover, gave no consideration for to give them in the most authentic shape, the means o the note which he had now now put in suit. arguing in support or impeachment of their decision without treating the reasons given for it, as material in Shajk Sheriff himself was thereupon called, and exathemselves to the result of the appeal.' it was appre-mined at great length, but notwithstanding certain ques hended, therefore, that there was nothing in this minute opposed to the principle of the present application, but that it was rather confi matory of the arguments used for allowing the petition of appeal.

"

The Court said, that this was an important question, and that they wished to consider the matter more fully. Cur, adv. vult.-Hurkaru, March 19.

THURSDAY MArch 19.

AGA ABOOL HUSSAIN V. MAHOMMED MASSOOM. Mr. Morton opened the pleadings. The action was upon a promissory note, payable four months after date, for Co.'s Rs 750, with interest at 12 per cent. ; of which the defendant was the maker, one Shaik Sheriff the

Per Ryan, C. J, Grant and Malkin, J. J. Filed 20th January, 1836.

tons which might have been objected to as leading, and others whose rather obvious tendency was to impeach the testimony of the examinant himself, the examination in chief most completely proved the plaintiff's case, and made cross-examination quite unnecessary. Another witness was then called, but the learned counsel for the defence, finding themselves in the predicament of being unable to establish any case without contradicting their own witness in almost every particular, judiciously abandoned it.

The Advocate-General begged to mention, that the first witness had told a different story when examined in the insolvent Court upon the same inatter,

Sir E. Ryan. He might have been made a witness for the plaintiff, (and you could then have contradicted, him) if you had pleaded so as to put the plaiff on proof of the indorsement.-There must be a verdict for the

plaintiff on the Count upon the promissory note, with
interest from the date at twelve per cent.
Verdict for the plaintiff.

PEREIRA AND UX. V. DE SOUZA AND OTHERS, EXECUTORS OF
F. MENDES.

In this case, a legal question of some difficulty had arisen upon a certain clause in the will of the testator, Mr. Mendes, whether a certain legacy was a lapsed legacy, by the death of the legatee in the lifetime of the testator, or was vested in the legatee in remainder. The executors were unwilling to pay over the money at their own risk (although the opinion of several Counsel taken by them, was in favour of the Court for their own security.

Mr. Prinsep and Mr. Clarke for the complainants.
The Advocate General and Mr. Barwell for the execu-

DOE V. PALIOLOGUS.

The Court intimated, that in this case (standing for Thursday), which is a "Special Case" for argument, they should adopt the rule acted upon at home, and only hear one Counsel (the juniors) upon each side.

For the lessor of the plaintiff. Mr. Clarke and Mr. Morton are the Counsel; and for the defendant, there are three. The Advocate-General, Mr. Prinsep and Mr. beith. It will be argued, therefore, by Messrs. Leith and Morton only.—Hurk., March 20.

Thursday, March 21.

DOE ON THE DEMISE OF PATRICK O'HANLON AND
WALLIS ALEXANDER V. NICHOLAS PALIOLOGUS.

mitted on both sides. The case was on this wise.

JOHN

a

3

a

Mr. Morton. The whole then depends upon the legal effect of the writ of sequestration, as given by the Charter. This writ at common law, is unknową at home, and the only writ closely analagous to it, is the writ of distringas, as given by the uniformity of process Act. 1. The object of the writ is merely to enable the plaintiff to proceed in his action, and it is, therefore, nothing more, than a formal step in the routine of procedure. This object is intended to be attained either by coercing the defendant's appearance, or dispensing with it; and such being the sole object, it is sufficiently distinguised from the fieri facias, and all writs of execution, whose object is to give the plaintiff satisfaction for a proved debt, not to put him in the way of proving an alleged debt. An obvious distinction exists between mesne process writs against property, such as the writ in this case is, and final process writs. The latter contemplate no future event to give them eff acy, but operate per se, and therefore bind the are conditional upon property, while the former subsequent event and do not transfer the property Hardwicke in Hawkins v. Crack, 3 Ark. Rep. 593. But An analogous distinction is taken by Lord some cases go even further, and decide that no sequestration, whether to compel appearance or to enforce a decree, can absolutely change the property, whether it be upon mesne or final process. Bligh v. Darnley, 2 P. Wms. 621. The distinction between sequestrations and Clerk v. Withers, 2 Lord Raym. It is not clear, howexecutions under fieri facias, is most aptly illustrated iq ever, that even a fi. fa. will pass the property to the Judgment-creditor so as to prevent the insolvency from overriding it. Per Lord Tenterden, C. J. in 9 Bingh 28; and Guy v. Hitchcock, 5 New and Manning Rep., But 11. Of the power and effect of the writ of sequestration under the Charter. The plaintiff has no power whatsoever to deal with the property, and the on. ly effect of the sequestration, if it gives him any right at all, is to confer an inchoate and contingent right, liable to be subsequently divested. It is not a lien, for lien cannot be without actual or constructive possession. Heywood v. Waring, 2 Campbell. Again, it may be

at all.

This ejectment was tried last sittings, when defeated by the mere appearance of the defendant, nominal verdict was given, subject to the opinion of and putting in and perfecting special bail. Pyne v. the Court, upon a "special case," the facts being ad Pyne, Clarke's Rules 151. The insolvency, therefore, Au ipso facto defeated the right, (such as it was) because, action having been commenced against one Ramkissen on general principles, it must defeat every right nat Colleah, a writ of sequestration, for non-appearance of absolute at the time. A nonsuit would defeat it also, the defendant, was sued out by the plaintiff, and the and a judgment which is a nullity (as in the case lands for which this ejectment was brought, were there, before the Court) as being obtained after the insolven under seized and sequestered. After the sequestration,y of the defendant, must have a parallel effect. But, Ramkissen filed a petition of insolvency, and an order of finally, the Court cannot hold this sale good, without adjudication was made, and the usual assignment exe.contravening the general principle of the bankruptcy cuted on the same day. After the insolvency, the se and insolvency laws, that no act of tho insolvent, whequestrator obtained an exparte judgment, and sued her of omission or commission, can prejudice the rights out a venditioni exponas, thereon; and at the Sheriff's of his creditor's. The insolvent might have pleaded his sale the defendant in ejectment, who had full notice of insolvency, puis darrein continuance, (Todd v. Maxfield, all the circumstances, became the purchaser and this 6 B. and C.) and not having done so, the luches may ejectment was instituted by the assignees of the insolvent, affect himself, but cannot possibly preclude them. to try the title. The order of adjudication was not com plied with in certain particulars, and the defendant in ejectment, contended iupon this ground, that the insol vency itself was fraudulent and void

Mr. Leith, for the defence. Considering this as strictly a bona fide insolvency, it cannot, even then be held to overrule the sequestration. It is a fallacy to Messrs. Clarke and Morton were the counsel for the say, that the object of the writ is merely to comply lessors of the plaintiff, and the Advocate-General, with with a formality, for this Court always considers the Messrs. Prinsep and Leith, were the counsel for the de-sequestration as a security for the ultimate judgment. fence, but the Court intimated that they should only In the first place, then, there is a clear analogy between hear one counsel (the junior) on each side. The special this writ and a common fi. fa. and, secondly, it will be case was accordingly argued this day by

shewn, that the effect of a fi. fa. would be to bind the property, so as to give a title paramount to that of the Mr. Morton, for the plaintiff. Besides the question assignees upon a subsequent fiat of bankruptcy or adof law, it has been attempted to establish the existence judication of insolvency. I. The cases cited on the of fraud, from the mere non-compliance with the order of Court; and this must first be considered. Sir E. Ryan. You had better go at once to point of law.

other side tend to lay down contradictory principles; for they seem to shew first, that mesne process writs the do not bind property, while final process writs do bind it; and then that neither have a binding effect! But if

the argument for the absence of all analogy between a cognizance of the question of the alleged invalidity of

an order of adjudication passed by the Insolvent Court, as long as it stands unimpeached there. 2ndly. But there is nothing whatever in the evidence before the court to justify the presumption of fraud There ap pears nothing more than a non-compliance with the order of adjudication, which, at the utmost, can only amount to laches, and no degree of laches can affect the validity of the order or of the assignments executed in compliance with it. The appropriate remedy is not an application to annul the order, but to enforce it. In point of fact there is no distinct proof even of laches; and the question ought not to be raised in this incidental manner, and between collateral parties.

The Court, at the close of the argument (which lasted about four hours) intimated that they should postpone

FRIDAY MARCH 22.

(Before Sir H. W. Seton.)

PLEA SIDE.

WIDOW AND REPRESENTATIVE OF SHAMLOLL TAGORE,

DECEASED.

Mr. Leith opened the pleadings.

writ of sequestration and a writ of fieri or levari facias, depends upon shewing, that the former contemplates a future event, and therefore cannot operate per se, this is easily answered by shewing, that the latter writs par take obviously of a similar character. The act which they contemplate, is the suing out of the, venditione exponas, which is the sole authority to sell. This is proved by the case (in the House of Lords) of Giles v. Grover, 9 Bingh, where it was held, that an extent at the suit of the crown takes priority of a precedent fieri facias at the suit of a subject; and the dicta of the Judges eight of whom delivered their opinions seriatim, shew that the execution of that writ is incomplete until the sale by the Sheriff. So are the King v. Giles, 8 Price, and King v. Cotton in Parker's Reports. Again II., if the analogy, is proved between this writ, and the writ judgment.-Hurk,, March 22. of fieri facias, the case is at an end, for the authorities shew that under the latter writ, the judgment creditor has a right paramount to that of the assignees under a subsequent commission of bankruptcy. Thomas v. De Sauges, 2 Barn, and Alderson. The question of the creditor's rights being thus affected by the laches of the bankrupt, does not arise; for the laches was anterior to the bankruptcy, as it consisted in omitting to enter an appearance, and thus allowing the seques- HORLOLL TAGORE V. SREEMUTTY SEFBOOSOONDERY DABEY, tration to issue in the first instance. But the argument up to this point, has proceeded upon the supposition that the insolvency is bona fide;-the circumstances, however, shew that it was fraudulent and void. The The Advocate. General stated, that this was an action terms of the order of adjudication have never been complied with, and the insolvency, therefore, can only brought to recover the sum of Company's rupees 36,406, be inchoate and not complete. The assignments are (with interest) paid by the plaintiff for the use of the mere voluntary assignments, and the assignees of the deceased Shamloll, being in satisfaction of a writ of exe insolvent are not in any more favourable position than cution issued on a judgment obtained in this Court by the aliences under an ordinary deed of assignment. The Connyfoll and Gupaulloll Tagore, against both Shamlolt and Hurloll jointly, but for which Shamloll was, in fact, case of Gale v. Röbert McClintock, Sheriff of Calcutta, in the year 1824, decided in this Court, is expressly by virtue of a certain agreement between themselves, in point. An action was there brought against the solely liable. These parties, Shamloll and Hurloll Ta Sheriff for a false return of nulla bona, and a question gore, were brothers, the sons and co-heirs of Ladley arose between the sequestrators under, a subsequently Ladleymohun, they had entered into mutual agreements, mohun Tagore, deceased. After the death of their father issued writ of sequestration, and the trustees under a deed of assignment, and the Court held that the seques-effects, and a fair apportionment of the liabilities and for the purpose of effecting a fair division of his estate and tration overrode the assignment; so the sequestrator rethe debt in question, upon which the judgment and execlaims against the estate ; and under these agreements cution by Connyloll and Gopauloll had been obtained was the proper debt of Shamloll, but it had been paid in fact by Hurloll, who had advanced the money at his brother's special instance and request, and who now sought to recover the amount from the legal representative Mr. Morton in reply. The case of Gale v. McClin- of the said Shamloll. The defendant had pleaded only tock, is only intelligible on thesupposition that the Court the plea of no assets; and the plaintiff, submitting to the had grounds for considering the assignment to be frau- plea, had replied, craving judgment of assets quando. dulent and void. Upon any other supposition, it labours The plea of plene administravit, standing alone upon under the serious defect of over proving the point; for it the record, of course did not put the existence of the debt is impossible to hold that a subsequent sequestration can in issue, but, by implication, admited it; yet as the decla bar an honest assignment, without holding that it is ration was upon the common money counts, where the absolutely impossible to make a valid and effectual damages never specially appear, being laid at a large assignment, which may not be defeated by subsequent arbitrary sum, (in the present case at one lakh of rupees.) events! Besides this, a voluntary assignment to trustees, it would be necessary to give proof of amount.* before the Insolvent Court or the Insolvent Act were

covered against the Sheriff. That case guès even be yond the present, and must decide it.

Upon the plaintiff's counsel rising to reply, the Court expressed a doubt, whether he was entitled; but after some discussion, the right was conceded.

a

in existence, does not stand upon the same footing as an assignment directed by an express order of adjudicaWitnesses were then called to prove the sum paid by tion. No case has been cited to shew that a sequestra- draft on Messrs. Carr and Tagore, drawn by Hurloll tion binds property. The whole of the defendant's case in favour of the judgmeut-creditors, and duly honoured. rests upon a supposed analogy between the present Mr. Prinsep, who was instructed for the defence, writ and a fieri facias; but the analogy has has only cross-examined the witnesses, with respect to the ac. been shewn in one particular, and the distinction is lost count upon which the payment was made, and also the sight of, that the former is only for the purpose of prov-particulars of the agreements, and the arrangement ening an alleged debt, while the latter is to satisfy an estatered into between the brothers! blished debt. With respect to the alleged fraud, which it is contended, vitiates the insolvency and order of adjudication, there are two answers. 1stly. Even if the inference of fraud were warranted by the facts disclosed, this is not the proper mode of advantage of it, for the Supreme Court cannot, except by way of appeal, take

Query, nevertheless, whether any evidence at all was necessary, and whether, upon such pleadings, the plaint and particulars together, did not ascertain the amount for which the plaintiff was entitled to take his judgment in futuro.