[Before ERLE, C. J., BYLES, KEATING, and SMITH, if any, to the reversion, but there was no injury

15

nt's term, to recover damages for the injury to his | the plaintiffs' claims on the said note; and that the
eversion, by reason of the non-repair of the pre- plaintiffs' claim was and is thereby merged and ex-
ises. It is said that the plaintiffs have now parted tinguished, satisfied, and discharged.
ith the premises, but it may be that they would have
btained a higher price from Messrs. Myers & Son if
he building had been in good repair. They may have
een compelled, by reason of the non-repair, to sell in

narrower market.

KEATING, J.—I am of the same opinion. The de-
endant's lease expired at Christmas, 1863, and at that
me there was no binding agreement with the Messrs.
(yers & Son. The plaintiffs could, therefore, at that
me have recovered damages for the injury to the
version by the non-repair. Then, if the plaintiff
d a right of action then, why is he to be deprived
it now? It is hardly necessary to decide what
onld have been the plaintiff's rights if he had en-
red into a binding agreement with Messrs. Myers &
n during the duration of the defendant's lease.
SMITH, J.-I am of the same opinion. If the build-
♫ demised to the defendant were out of repair at
e determination of the lease, the plaintiff is entitled
recover substantial damages. The fact, that the
ildings were pulled down does not affect his right.
ere was no binding agreement with Messrs. Myers
Son until the defendant's interest in the premises
d expired; and even if there had been, I doubt
ether we ought to take that into consideration. I
ink the plaintiff is entitled to recover the damages
ased to the reversion by reason of the non-repair.-
the discharged.

ALER and Another v. MAYOR and Another.-May 8.
erger of simple contract in specialty-Promissory note
green as collateral security for part of sums secured by
deed-Giving time to principal debtor.

Fourthly, on equitable grounds, that the defend-
ants made the said note jointly with Charles Mayor,
as surety to the plaintiffs for the said Charles Mayor,
and in consideration of 1507. advanced by the plain-
tiffs to the said Charles Mayor, whereof the plaintiffs
had notice before and when they first received the
said note; and they, the plaintiffs, received and always
held the same, on the terms that the defendants should
be liable to them as the said note as sureties only for
the said Charles Mayor; and that after making the
said note and before action, the plaintiffs, without the
consent of the defendants, or either of them, for a
good, valuable, and sufficient consideration in that be-
half, agreed with the said Charles Mayor to give, and
then gave, him time for the payment of the moneys in
the said note specified, and thereby discharged the de-
fendants from the said note.

On these pleas issue was joined.

The action was tried at Guildhall at the sittings
after Hilary Term, before Erle, C. J., and a special
jury. The facts were, that Charles Mayor being de-
sirous of purchasing the business of his father, applied
to Mr. Whall, a solicitor at Worksop, to raise the ne-
cessary funds. Whall applied to an insurance office
to advance 6507. on certain securities, but the office
having refused to advance more than 500l., on the
ground partly that the life of Charles Mayor's wife was
uninsurable, application was made to the plaintiffs,
who agreed to provide the 6501. The plaintiffs were
the amount on the security of the property of the wife
trustees under a will, and they consented to advance
of Charles Mayor. In this property Mrs. Mayor had
only a life interest, and she had no power of disposi-
tion till the age of twenty-five, she being then only
twenty-three. It having come to the knowledge of
3. agreed to advance C. 6501. on security of a mortgage the plaintiffs that Mrs. Mayor's life was uninsurable,
deed, and on a promissory note by C., and two sureties
for 150, part thereof, as a collateral security. The note they insisted that Charles Mayor's life should be in-
was drawn on the 7th December, and was payable on de-sured, and that for the 150l. above the 5007. Charles
mand, with interest at 41. 108. per cent. during forbear-
ance. Aboutthe same time 150l. was paid over to C. for
his immediate necessities, and on the 22nd the deed was
ecuted by B., C. and his wife, and W., as surety, C.,
by the deed, covenanted to repay 6501. on the 22nd June
following, with interest at 51. per cent. In an action on
The note by B. against the sureties-Held, that the re-
Wedy on the simple contract was not merged in the deed,
he two securities not being co-extensive; and that the
venant in the deed, giving time to the principal debtor,
lid not operate to discharge the sureties to the note.
The declaration stated, that the defendants, on the
December, 1863, by their promissory note, pro-
sed to pay the plaintiffs on demand 150%., with in-
st thereon after the rate of 47. 10s. per cent. per
aum during the forbearance, but that the defend-
did not pay the same.

Pleas-First, traverse of the making of the note.
Secondly, payment.

Thirdly, that the defendants made the said note
intly with Charles Mayor; and that after making
said note, and before action, the said Charles
or satisfied and discharged the said note, and the
intiffs' claim thereon, by executing to them a deed,
ereby the said Charles Mayor secured to the plain-
and covenanted with the plaintiffs to pay them,
01. and interest, including the amount of the said
te, for and on account, and in satisfaction and dis-
arge, of the said note, and the moneys therein men-
ned, which deed was executed by the said Charles
avor, at the request of the plaintiffs, and accepted
the plaintiffs in full satisfaction and discharge of

ties. The note was to be payable on demand, and in-
Mayor should give his promissory note with two sure-
terest at 47. 10s. per cent. during forbearance. The
draft deed was prepared on the 5th December, 1863,
and the parties were Charles Mayor and his wife, with
one Warren as surety, and the plaintiffs Boaler and
Watson. By the deed Charles Mayor covenanted that
his wife, if she became of the age of twenty-five,
should assign portions of her interest, according to the
will under which she was entitled, to her husband, and
Charles Mayor also covenanted to pay over the 6501,
with interest at 51. per cent., by the 20th June follow-
ing. The promissory note for 150l. was drawn and
executed on the 7th December by Charles Mayor, and
by the defendants as his sureties. In the meantime
Charles Mayor, who was anxious to commence his
business, asked for an advance of 150l., and that
amount was accordingly paid to him. On the 22nd
December, the deed, which had been ingrossed accord-
ing to the draft, was forwarded to London, and duly
executed, and the balance of 5007. was thereupon ad-
vanced.

With respect to the circumstances attending the
granting of the promissory note, there was some con-
tention at the trial, but it was finally agreed that the
evidence of the plaintiff Watson was a correct version
of what had taken place. His evidence, so far as ma-
terial, was as follows:-"Mr. Boaler agreed to advance
6501. There was to be a mortgage deed securing 6501.,
and a promissory note for 150l., as a collateral security.
Nothing was said as to the note being for a temporary
purpose. We did not think the deed of sufficient value
to make the whole advance upon it."

The defendants thereupon contended that the note was merged in the deed, and that as by the deed payment was not to be till June, the effect was to give time to the principal debtor, and so to discharge the sureties.

The learned judge directed a verdict to be entered for the defendants, with leave to the plaintiffs to move to enter the verdict for them, if the Court should hold that the deed was not a discharge of the note.

Macaulay, Q. C., and Cave shewed cause.-When the promissory note was given on the 7th September, there was a several debt in existence, and by the deed the several liability of Charles Mayor became merged. (Price v. Moulton, 10 C. B. 561). The joint liability of Charles Mayor and the defendants was also merged in the covenant of Charles Mayor and William Warren. (King v. Hoare, 13 M. & W. 494). In Bell v. Banks (3 Man. & G. 258), Maule, J., observes, that "it may be that the taking a security of a higher nature from one of two joint debtors would cause a merger." [Erle, C. J.-The simple contract debt is, in point of fact, extinguished rather than merged.] It may be said that the promissory note was given as a collateral security, but it does not so appear on the deed, and parol intention of the deed cannot be admitted. Yet the deed professes to set out what are the securities for the advance. It is clear what the securities weremortgage of the wife's interest, and for collateral security, the covenant of Charles Mayor and William Warren. Then the operation of the deed was to give time, and thereby to discharge the sureties. (Boultby v. Stubbs, 18 Ves. 20). [They referred also to Ex parte Glendinning (Buck's Rep. 517) and Lewis v. Jones (4 B. & Cr. 506).] [Smith, J., referred to Sharpe v. Gibbs (16 C. B., N. S., 527).]

Huddleston, Q. C., and Talfourd Salter, for the plaintiffs, were not called upon.

ERLE, C. J.-I am of opinion that the rule must be made absolute. The action was on a joint and seve

BYLES, J.-I am of the same opinion. At first, I was struck with Mr. Macaulay's argument; but I am satisfied that there can be no merger of an inferior security in a higher, unless the two are co-extensive, So far from the deed being intended as a satisfaction, it is clear that it was not to be taken in satisfaction, As to giving time, I quite agree with the judgment of Vice-Chancellor Wood in Webb v. Hewitt (3 Kay & J. 442):-"The authorities, which are almost innume rable, have settled, that upon any giving of time to a principal debtor, if there be a reservation of right against the surety, the surety is not discharged; for when the right is reserved, the principal debtor can not say it is inconsistent with giving him time, the the creditor should be at liberty to proceed agains the sureties, and that they should turn round про the principal debtor, notwithstanding the time so give him; for he was a party to the agreement by whi that right was reserved to the creditor, and the que tion, whether or not the surety is informed of arrangement, is wholly immaterial."

KEATING, J.—I am of the same opinion, for reasons stated by the other members of the Cou Mr. Cave relied on Price v. Moulton, where it was he that irrespective of the intention of the parties, law operated a merger. But there the judgment the Court was on demurrer, and it was admitted the debts were the same. Williams, J., puts to Willes, in his reply, the very question. In this case have no doubt that the deed did not operate by of merger.

SMITH, J., Concurred, and referred to Wyke v. Ro (1 De G., Mac., & G. 408).—Rule absolute.

COURT OF EXCHEQUER.

MICHAELMAS TERM.

ral promissory note against the two Mayors. The [Coram POLLOCK, C. B., BRAMWELL, CHANNELL,

note was made between Charles Mayor, the principal debtor, the defendants as his sureties, and the plaintiffs. A mortgage deed was to be granted by Charles Mayor for the whole amount of 6507., and for the amount above 5007. it was agreed that the promissory note in question should be given by Charles Mayor and two sureties. The promissory note was drawn on the 7th December, and was payable on demand; and the deed was executed on the 22nd, and repayment was secured for the 22nd June following. It is said that the debt from the two sureties on the note is merged in the deed. I am clear, however, that the note was not merged. The sums were different, the parties were different, and repayment was due at different times. The case of Sharpe v. Gibbs is an authority applicable to the present case. That was the case of a mortgage security executed by two of three persons (the wife of the third being also a party) to secure a joint simple contract debt of the three; and it was held that the simple contract debt must in its entirety become a specialty debt, and the remedy on the deed must be co-extensive with that for the

simple contract debt. If the higher security of the deed is not co-extensive with the promissory note, the two may co-exist. Then the deed contains a covenant to pay in six months, while the note is payable on demand; and I think the covenant to pay in June operates so as that there can be no action for breach of covenant until June has passed; but the deed is silent as to any other remedy, and it does not operate so as to give time to the principal debtor, and discharge to the sureties. With regard to the intention of the parties, parol evidence must be admitted to prove Mr. Cave's view of the case.

PIGOTT, BB.]

THE ATTORNEY-GENERAL v. GELL.-Nor. 21. 4 Succession Duty Act-Succession to a right by death 4 testator devised property to A. for life, after her band's death; remainder to the child of A., if remainder over to E. P. for life, with power of app ment to his children, and in default, to his secunda the rents and profits, during the joint lives of A. and hnsband, were to accumulate, and at the end of t one years were, if A. and her husband were both aỗ to go to the person who would have been entitled to corpus if A. and her husband had died without lea children of A. The twenty-one years expired in 18 and E. P. had died previously in the same year, lea a second son, who so became entitled to the accums tions:-Held, that he was liable to succession duty reason of the death of E. P., as having become ent to property upon the death of a person dying after time appointed for the commencement of the Succe Duty Act.

Information for succession duty.-Philip Gell, he inafter referred to as the testator, by will, dated 17th February, 1839, and duly executed, appoint Edward Sacheverel Chandos Pole and John C trustees and executors thereof, and thereby devis and bequeathed to the said trustees and their be &c., all his real and personal estate upon trust, du the joint lives of William Pole Thornhill and his s Isabella, the daughter and only surviving child of testator, to accumulate the rents and produce there as therein directed (subject to the proviso for thereinafter contained), and to apply the accum tions in the purchase of other real estate; and in case

be selected. It results in this, when any body gains by a death, the State shares his benefit.-Judgment for the Crown.

CAUSES.

KNIGHT v. KNIGHT.-June 20.

Cruelty.

Continual quarrels between husband and wife, caused by his acts of adultery, and leading to violence of de meanour, and occasional acts of violence on his part, inducing mental and bodily suffering in the wife, helo to be cruelty.

This was the wife's petition, on the ground of adul tery coupled with cruelty. The respondent did no appear.

The cause was heard before the Judge Ordinary, the 14th June.

Dr. Spinks and Pearce, for the petitioner.—The mat riage was in September, 1851, and the parties col bited from that time until the beginning of 1865, the house of the petitioner, at York-gate, Regent park. In 1863 the respondent became acquainte with a girl named Margaret Phillips, with whom carried on an adulterous intercourse until he separate from his wife. From the time of forming this can nexion he treated his wife with great unkindness boasted to her of his connexion with Phillips, an wished to invite her to his house. Frequent quarrel on the subject ensued, and the petitioner said that th respondent pushed her about, and bruised her, &c.

sons who would have been entitled to the corpus if the daughter were dead without a child by her then husband, with a proviso for the daughter's benefit if she survived her husband. The testator died in 1842. The daughter and her husband are still living. Edward Sacheverel Chandos Pole died on the 19th Ja- COURT FOR DIVORCE AND MATRIMONIAL nuary, 1863, without making any appointment, and the defendant is his second son. The twenty-one years expired on the 25th January, 1863. The question is, whether the succession duty is payable on his interest in the rents and profits after the twenty-one years? Now, here is a past disposition of property, whereby the defendant has become beneficially entitled to the income of property. Has he done so upon the death of a person dying after the commencement" of the Succession Duty Act? Edward Sacheverel Chandos Pole has died since that time. The question is, what is the meaning of the words in the 2nd section, "has or shall become entitled to any property, upon the death of any person dying after the time appointed for the commencement of the act, immediately or after an interval certainly or contingently?" It seems impossible that the words "become entitled" can mean, both have the right and have the enjoyment, and yet there are irresistible reasons to shew that both are meant. First, to shew that it means have the title or right, and not the enjoyment, there is in the first place the word itself "entitled." A man is entitled as soon as he has the right. In the next place, he may be entitled "after an interval." Again, he may be entitled "contingently." Further, by sect. 20, the duty is payable only where the successor "shall become entitled in possession to his succession." On the other hand, "a past disposition of property, by reason whereof a person has become entitled on the death of a person dying after the commencement of the act," confers a succession. But in such case it cannot mean the accrual of the title, for that has taken place, so that the word must mean entitled in posses-tercourse with a young girl, for whom he had suffere sion. Further, if this were not so, the common case of a settlement for life with following interests would not confer a succession on the person taking in remainder. This cannot have been intended, and, indeed, is contrary to several cases. (The Attorney-General v. Yelverton, 7 H. & Norm. 306; The Attorney-General v. Gardner, 1 H. & C. 639). We must hold, therefore, that the section applies not merely to cases where the title accrues at death, but also to cases where the title has accrued before the act, but is made an interest in possession at once, or after an interval," on a death occurring after the act. So that it applies not only where the death is the cause, but also where it is the occasion of the successor's being entitled to possession "immediately," or "after an interval." But if so, that comprehends the present case. The death of his father did not entitle the defendant in the sense of giving him the title or right, but on his death the defendant became contingently entitled, after an interval, to possession.

66

We, therefore, give judgment for the Crown. Mr. Rolt's argument has not been lost sight of; but after all, if our construction of the statute is right, the question is, whether the father's death was the occasion of the son's right? We think it was. It may be that the consequence follows which Mr. Rolt pointed out, namely, that if there were a gift for ten years, and then to the rector of Dale for the time being, and A. was rector at the beginning of the ten years and died, and B. was rector at the end, B. would be liable to a succession duty, as being entitled on the death of A. It may be so no doubt; that does not seem a case in ordinary parlance, of being entitled on the death of A. But there is no other objection to such a law. There is no reason why such a subject of taxation should not

Cur, adv. vult.

June 20.-THE JUDGE ORDINARY.-It was prove beyond doubt that the respondent had, for more tha a year before this suit, maintained an adulterous in

himself to indulge a passionate attachment. For som time, by his unaccountable conduct, he tortured wife by incessant suspicion of his fidelity. The ou breaks between them springing from this fertile souri were frequent, and marked, on his part, with un strained violence of language and demeanour. one occasion she broke a blood vessel in the excit ment thus caused. On another occasion he introduc his paramour to her, and tried to obtain a place her at his table. Finally, on more than one occasio he laid violent hands on his wife, and inflicted bruis and injuries, which were afterwards visible, on person. The amount of mental and bodily sufferi thus induced-the lengthened period over which lasted-the bold and open manner in which he final avowed to his wife his passion for another wome and his determination to indulge it-combined to these acts of violence a still less excusable charact And the case is, I think, made out as one of adulte coupled with cruelty. Decree nisi, with costs.

ROWE v. ROWE.-June 13 and 20.

Judicial separation—Withdrawal of wife from bed. An allegation by the husband, in answer to his wife's suit the ground of cruelty and adultery, that she had wh withdrawn herself from his bed, and refused him ost jugal rights, is no answer.

This was the wife's petition for judicial separati on the grounds of cruelty and adultery.

The respondent, in his answer, traversed the cruelty alleged condonation as to the cruelty, traversed th adultery, alleged condonation as to the adultery, pleaded, fifthly, "that on divers occasions since the