they be in themselves doubtful, and, also, of the motive, by which the witness was induced to use those expressions; but, I think, he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness." And, "as many things may pass in one and the same conversation" which do not relate to either, the learned Chief Justice declared the opinion of the Judges, that the witness could not be reexamined even to the extent of all that might have passed relating to his becoming a witness, to which the statement proved had reference. Lord Wynford, then Mr. Justice Best, it is true, dissented (a) from this doctrine, and thought that the whole matter that passed in the same conversation was made admissible by the adversary's introduction of any part. But he rested his dissent on the propriety of giving a witness a full opportunity of self-vindication, which, in truth, the opinion of the seven Judges already secured for him; and he also lamented that the prevailing rules of evidence were too narrow, and thus proved that he rather thought it a good opportunity to extend them, than was contented to abide by them. Lords Eldon and Redesdale are also reported, in the Parliamentary Debates (b), to have intimated their disagreement from the opinion of the seven Judges. They however acted upon it; and the extreme caution with which the former learned Lord framed and often remodelled the question to be proposed to the Judges can hardly be reconciled with the doctrine that the whole (a) See 2 Hansard's Parl. Deb. New Series, p. 1302. Tt 2 of 1838. PRINCE against SAMO. 1838. PRINCE against SAMO. of what passed at the conversation referred to was for that reason admissible. Upon the whole, we think it must be taken as settled that proof of a detached statement made by a witness at a former time does not authorise proof by the party calling that witness of all that he said at the same time, but only of so much as can be in some way connected with the statement proved. But, in the present case, the statement did not proceed from a witness, but from a party to the suit; and the opinion delivered by Lord Tenterden is not only confined to the former case, but is expressly said by him not to apply in the latter. His language is accurately cited by Mr. Starkie (Evidence, vol. i. 180. ed. 2.), from 2 B. & B. 297. (His Lordship here read the passage cited antè, p. 628, 9.) We forbear from entering into a detailed examination of the doctrine here laid down. We have considered it repeatedly with the utmost care and with all the diffidence inspired by such an authority; but we cannot assent to it. We will merely observe that it was not introduced as an answer to any question proposed by the House of Lords, and may therefore be strictly regarded as extra-judicial; that it was not necessary as a reason for the answer to the question that was proposed; that it was not in terms adopted by Lord Eldon, or any of the other Judges who concurred; that it was expressly denied by Lords Redesdale and Wynford; and that it does not rest on any previous authority. We ought to add that, in our opinion, the reason of the thing would rather go to exclude the statements of a party making declarations which cannot be disinterested. Nothing would be more easy than to find or imagine examples examples of the extreme injustice that might resultfrom allowing such statements to be received. But none can be stronger than the actual case. Because the plaintiff was shewn to have said that he was insolvent, he would have been allowed, without any reference to his own insolvency, to prove by his discourse at the same period every averment in his declaration, with every circumstance likely to excite prejudice and odium. And, if this were evidence, the jury would be bound to consider, and might give full effect to it, and thus award large damages for an injury of which no particle of proof could be found but the plaintiff's own assertion. We are of opinion that the line was correctly drawn at the trial; and this rule must be discharged. Rule discharged (a). (a) See 2 Phil. Ev. 942. (8th ed.) 1838. PRINCE against SAMO. 1838. Testator de DOE on the demise of WILLIAM HODGSON vised personaltyJECTMENT for lands in Cumberland. to trustees, to pay debts, and Issue having been joined, the facts were stated, by coninvest the sur- sent of parties, for the opinion of this Court, in a case, which was substantially as follows. plus, and to re ceive the interest, and pay it to his wife during her life and widow hood, and afterwards to apply Richard Hodgson, by his will, dated 18th January 1828, devised (a) unto Jane Dalston Hodgson and her assigns, the interest, or a sufficient part, to the maintenance of his daughter I., until she should attain the age of twenty-five, and then to pay and assign the principal and unapplied interest to her; but, in case she should happen to die before attaining that age, leaving lawful issue, then in trust to pay the same to such issue, share and share alike, if more than one, as soon as they should respectively attain twenty-one, and to pay the interest towards their maintenance in the meantime; but, in case I. should happen to die under twenty-five, and without leaving lawful issue, testator bequeathed the whole surplus of the personalty to W. and D., share and share alike. By the same will, he devised to D. an annuity of 2001. for life, charged on his land, to be paid by the above-mentioned trustees; and he devised to the same trustees (one of whom was W.), and the survivors and survivor, and the heirs of the survivor, all his lands, charged with the annuity, and with so much of his debts, legacies, and funeral expenses, as the residue of the personalty would not extend to, in trust to receive the rents, issues, &c., and apply them to the use of testator's wife, during her life and widowhood, and afterwards to apply the rents, &c., to the maintenance of I. until she should attain the age of twenty-five, and afterwards in trust for I. and her heirs; but, in case it should happen that I. died without leaving lawful issue, then testator devised the lands to W. and D. in fee, as tenants in common. The will also empowered the trustees, in order to pay debts, &c., in case the residue of the personalty should be insufficient, to sell any part of the lands, and to grant, alien, and convey the same lands, or any part thereof, in fee simple. The testator's wife died in his lifetime; I. survived the testator, and attained the age of twenty-one, but died under twenty-five, leaving no issue. The personalty not being sufficient to pay the debts, the trustees sold part of the land. Held, 1. That the trustees took a legal fee simple in all the land, such estate being requisite for the purposes of the trusts. 2. That, on the testator's death, I. took a vested equitableestate tail, and W. and D. took equitable remainders. And, therefore, 3. That, I., by suffering a recovery in which the trustees did not join, created no legal estate; but that the equitable remainders of W. and D. were barred. (a) The will commenced with bequests of personalty; and the Court directed that the whole should be considered as part of the case. The bequests of personalty were substantially as follows. The testator, after bequeathing household furniture and other personal chattels to his wife Mary Hodgson, gave the residue of his personal estate to trustees (the same assigns, during her natural life, one yearly annuity or rent charge of 200%., to be issuing and payable out of all such messuages, lands, tenements, and real estate (except his estate at Fauld) as he might be possessed of at the time of his decease, to be paid, by the trustees after named, to her by half-yearly payments. And he devised to his sister Jane Hodgson the dwelling-house, &c., then in her occupation, situate at Fauld, in the parish of Burgh by Sands, during her natural life, for her own residence only. And he devised to John Forster, therein described, and to the lessor of the plaintiff William Hodgson Cadogan (by his then name of William Hodgson), and Joshua Anderson, and the survivors and survivor of them, and the heirs of such survivor, all his messuages, lands, and tenements situate at Moorhouse, Orton, and Burgh, in the said county of Cumberland, and all other his real estate whatsoever and wheresoever, subject to the life estate of his 1838. Doɛ dem. against EWART. same persons as the trustees of the realty), in trust to apply it in pay- |