verdict on the other issues, but gave the plaintiff leave to move to enter a verdict in his favor on that issue also.

Wilde, Serjt., now moved accordingly, and contended, as before, that the defendant could not be entitled to set off any more than he had actually paid.

Lord TENTERDEN, C. J. This question, arising on a plea of set-off, must be treated as if it had arisen in an action on the bond. Now, that was conditioned for payment of the annuity as well as for indemnifying the defendant; and had an action been brought on this bond, the obligor would, as in the ordinary case of actiors on bonds, have been bound to prove payment.

BAYLEY, J. If the bond had been a bond of indemnity only, the defendant must have proved actual damage. But as the condition was for payment of the annuity, the onus of proving payment was upon the plaintiffs. Toussaint v. Martinnant and Another, 2 T. R. 100, is an express authority, that where a bond is given to a surety, conditioned for payment of the money, the surety may sue upon it as soon as the condition is broken, although he has not been called upon to pay.

Rule refused.

MAUGHAM v. HUBBARD and ROBINSON, Assignees of LANÇASTER, a Bankrupt. p. 14.

A witness called to prove the receipt of a sum of money, was shown an acknowledgment of the receipt of such money signed by himself; and on seeing it, said that he had no doubt he had received it, although he had no recollection of the fact: Held, that this was sufficient parol evidence of the payment of the money, and that the written acknowledgment having been used to refresh the memory of the witness, and not as evidence of the payment, did not require any stamp.

ASSUMPSIT for money had and received. Plea, not guilty. At the trial before Lord Tenterden, C. J., at the Middlesex sittings after last term, it appeared that the action was brought to recover from the assignees of the bankrupt 20. paid by the plaintiff to the bankrupt before his bankruptcy. The bankrupt being called as a witness on the part of the plaintiff stated, that he had dealt with the plaintiff several years; that in November 1822, 201. was received from the plaintiff, which was not carried to the account. A rough cash-book kept by the plaintiff was then put into his hands; in which there was the following entry: "4th of November 1822. Dr.-R. Lancaster. Check 201. R. L." The bankrupt then said, “The entry of 201. in the plaintiff's book has my initials, written at the time; I have no recollection that I received the money; I know nothing but by the book; but seeing my initials, I have no doubt that I received the money." It was contended that the paper on which this entry was made ought to have been stamped as a receipt; but Lord Tenterden, C. J., was of opinion, that though it was not itself admissible in evidence to prove the payment of the money the witness might use it to refresh his memory; and that his having said that he had no doubt that he received the money was sufficient evidence of the fact. A verdict was found for the plaintiff, but liberty was reserved to the defendant to move to enter a nonsuit, if the Court should be of opinion that this evidence ought not to have been received.

Robinson now moved accordingly, and contended, that as the entry in the plaintiff's own book could be used for no other purpose than that of proving the receipt of the money by the bankrupt, it ought to have been

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stamped. Here the witness stated that he had no recollection of the fact of the receipt of the money. The effect of allowing the witness to look at the entry to refresh his memory was to make it operate as a receipt, and it ought, therefore, to have been stamped. He cited Hawkins v. Warre, 3 B. & C. 690.

Lord TENTERDEN, C. J. In order to make the paper itself evidence of the receipt of the money it ought to have been stamped. The consequence of its not having been stamped might be, that the party who paid the money, in the event of the death of the person who received it, would lose his evidence of such payment. Here the witness, on seeing the entry signed by himself, said that he had no doubt that he had received the money. The paper itself was not used as evidence of the receipt of the money, but only to enable the witness to refresh his memory; and when he said that he had no doubt he had received the money there was sufficient parol evidence to prove the payment.

BAYLEY, J. Where a witness called to prove the execution of a deed sees his signature to the attestation, and says that he is, therefore, sure that he saw the party execute the deed, that is a sufficient proof of the execution of the deed, though the witness add that he has no recollection of the fact of the execution of the deed. Rule refused.

HENLEY v. SOPER the Elder.-p. 16.

Debt lies on the decree of a colonial court made for payment of the balance due on a partnership account. One of the partners gave his son a power of attorney, "to act on his behalf in dissolving the partnership, with authority to appoint any other person as he might see fit:" Held, that this gave the son power to submit the accounts to arbitration.

DEBT on a judgment of the supreme court of judicature in Newfoundland, whereby the plaintiff recovered a debt of 6081. 2d. with costs of suit, which were taxed at 567. 9s. 11d. Count for interest. Plea, nil debet. At the trial before Gaselee, J., at the last Spring assizes for Devonshire, the proceedings of the supreme court were given in evidence, whereby it appeared that on the 4th of June, 1825, the present plaintiff presented a petition to that court, stating that he and defendant entered into certain partnership transactions in 1818; that in 1821 the defendant proposed that they should close their concerns, to which plaintiff assented; that plaintiff had been unable to obtain an account of the affairs of the partnership, and therefore prayed that the court would order him to be furnished with a true statement of the accounts. Upon this petition an order was made that the defendant should appear in court on the 6th of June to answer such questions as might be put to him touching the matters set forth in the petition. On the 13th of June, Joseph Soper, junior, as the attorney of his father, J. Soper, senior, appeared in court, and stated that he had it not in his power to answer; in consequence of which the cause was ordered to stand over until November then next, to allow defendant time to produce a statement of the partnership accounts. On the 6th of December, 1825, the plaintiff in his own proper person, and the defendant by his attorney, J Soper, junior, prayed the court that all matters in difference between them might be submitted to the arbitration of A. B. and C. D.; that the court would be pleased to appoint an umpire, and that the award of the arbitrators, signed and delivered into court, might be made a rule of the supreme court, and be considered final and binding on them, plaintiff and defendant. To which prayer the court assented, and P. M. Esq. was by the court ap pointed umpire. On the 25th of January, 1826, an award was made, and

on the 12th of July, 1826, this award was set aside by the supreme court, and the arbitrators were authorized to enter into a new investigation of the accounts between the parties, upon Mr. Soper's paying all the costs already incurred in the proceeding. On the 16th of July the arbitrators made a second award, and thereby found that Soper was indebted to Henley in the sum of 6081. 2d., and for the amount of this award the supreme court gave judgment for the plaintiff on the 31st of July, 1826, and on the 5th of July, 1827, the court taxed and allowed the plaintiff's costs at 56l. 9s. 11d. În order to prove the authority of J. Soper, junior, to appear and act as agent for his father in the supreme court, a letter was given in evidence written by the defendant to the plaintiff on the 9th of April, 1821, wherein he stated that he was determined on dissolving his connection with the plaintiff, and in order to facilitate that object, had given his son a power of attorney to act on his behalf, with authority to appoint any other person as he might see fit. And also a petition from the defendant to the supreme court, dated the 30th November, 1825, praying for further time to produce his accounts before the arbitrators. For the defendant it was contended that the proceeding in the supreme court was in the nature of a bill in equity for an account of partnership transactions, and that the money awarded was for a demand which could not be sued for in the courts of law in this country, therefore no action was maintainable on the judgment; secondly, that the authority given to the defendant's son did not warrant a submission to arbitration; and, thirdly, that the second reference did not appear to be made with the assent even of Soper, junior. The learned Judge directed the jury to find for the plaintiff for the amount of the foreign judgment, together with the taxed costs and interest, and gave the defendant leave to move to enter a nonsuit.

Wilde, Serjt., now moved accordingly. The case of Carpenter v. Thornton, 3 B. & A. 52, decided that an action will not lie on the decree of a court of equity in this country unless the decree is made for a demand constituting a debt at law. Now it cannot be supposed that this court will give greater effect to the decree of a colonial court than to a decree of the High Court of Chancery. The decree in this case was for money due on a partnership account, for which no action at law could have been maintained in this country. In Sadler v. Robins, 1 Campb. 253, which was an action on a decree of the Court of Chancery, in Jamaica, made for payment of a certain sum after deducting the defendant's costs, it was held that the action would not lie. It would be very inconvenient if this action were held to be maintainable, for the foreign judgment is only primâ facie evidence of the debt, Phillips v. Hunter, 2 H. Bl. 410, Walker v. Witter, 1 Doug. 1; and the defendant must have liberty to go into evidence of the partnership accounts, in order to answer the plaintiff's primâ facie case. At all events, the plaintiff cannot recover the costs and interest. Secondly, the authority given by the defendant to his son to settle his affairs did not extend to the mode adopted, viz. by submitting them to arbitration; and there is not any evidence that the son assented to the second reference which the court must be taken to have ordered proprio vigore.

Lord TENTERDEN, C. J. I am of opinion that the verdict in this case was right. The action was founded on a decree of a colonial court, which in substance fixed the amount of a balance due from one of two partners to the other. There is a great difference between the decree of a colonial court and of a court of equity in this country. The colonial court cannot enforce its decrees here, a court of equity in this country may; and, therefore, in the latter case there is no occasion for the interference of a court of law in the former there is, to prevent a failure of

justice. There is another difference, also: in considering the proceedings of a colonial court, we must look at the substance and not at the form, according to the rule adopted by the privy council. If we, sitting in England, were to require in the proceedings of foreign courts all the accuracy for which we look in our own, hardly any of their judgments could stand. With respect to Carpenter v. Thornton, I think it does not establish the broad principle for which it was cited. It appears by the report that I then expressed myself with much caution, and I do not find that I ever said that a decree of a court of equity, fixing the balance due on a partnership account, could not be enforced in a court of law, unless the items of the account could be sued for. My judgment proceeded on the particular circumstances of that case: the bill was for the specific performance of an agreement, which is a matter entirely of equitable jurisdiction. But it is a general rule, that if a partnership account be settled, and a balance struck by due authority, that balance may be recovered in an action at law. In the present case, the first step appears to have been taken by the plaintiff to procure an adjustment of the partnership accounts. The defendant's son, acting under a power of attorney, appeared for his father, who was thereby made virtually a party to the suit. Then the accounts were referred to arbitration. The first award made by the arbitrators was certainly by the authority of the defendant, but that award was disturbed ; and it is said that neither the defendant nor any person on his behalf consented to the second reference. But looking at the substance of the proceedings, and considering that the second reference took place upon the defendant's paying the costs of the first, we must presume that it was made at his instance. Then we find the balance of a partnership account duly ascertained, and a decree made for payment of it; and I think a promise to pay the debt ascertained by that decree may and ought to be presumed. If so, there is no fault to be found with the verdict in this case. In the case of Sadler v. Robins, the sum due on the decree was left indefinite, the costs which were to be deducted never having been taxed; but Lord Ellenborough said, that, had the decree been perfected, he would have given effect to it as well as to a judgment at common law.

BAYLEY, J. I am of the same opinion: and it appears to me that the case of Carpenter v. Thornton does not militate against our present decison, for there the only obligation on the defendant was to pay something awarded on equitable principles. But an action at law is always maintainable for the balance of a partnership account duly ascertained; and it cannot make any difference that the balance in the present case was settled by the Court instead of by the parties themselves out of Court. Then it is said that Soper's son had no authority to submit the accounts to arbitration; but I think he had such power, and that we must presume his assent to the second reference, inasmuch as it was ordered upon payment of costs by him.

HOLROYD, J. But for the case before Lord Ellenborough, I should have entertained some doubts upon the present question. That, however, is an authority in favor of an action upon the decree of a foreign court of equity if duly perfected. Here the decree was perfected.

LITTLEDALE, J. I am entirely of the same opinion as to the sum decreed to be paid as the balance of the partnership account, nor do I see any objection to the demand of the other two sums for costs and interest

Rule refused.

DOE, on the demise of OLDHAM and Wife, v. WOLLEY.—p. 22. A will more than thirty years old may be read in evidence, without proof of its execution, although the testator has died within thirty years, and some of the subscribing witnesses are proved to be still living. After the lapse of a period of more than 100 years: Held, also, that in the absence of evidence to the contrary, the death of a party without issue might be presumed.

EJECTMENT for lands in Worcestershire. Plea, the general issue. At the trial before Vaughan, B., at the last Spring assizes for Worcester, it appeared that the lessors of the plaintiff claimed as devisees of Frances Wolley, who was said to be heir of T. Wolley, who died in 1800, seised of the estate in question, having devised it to his widow for life, remainder to his right heirs. This will was dated the 21st February, 1798, more than thirty years before the trial, but one of the subscribing witnesses was proved to be still living; and it was insisted for the defendant that he must be called to prove the execution of the will, as the testator had died within thirty years. The learned Judge thought that the thirty years must be computed from the date of the will, and overruled the objection. In order to prove that Frances Wolley was heir of T. Wolley, the testator, a deed was produced, being a settlement made in 1689, on the marriage of Thomas Wolley, the grandfather of T. Wolley, the testator; by which it appeared that he had several brothers, of whom Edward, the grandfather of Frances Wolley, was the youngest. No evidence was given to show what had become of the other brothers, or that they died without issue. But wills of some members of the family, made after the date of the marriage-settlement, were produced, and they did not mention any brothers, except the grandfather of T. Wolley, the testator, and the grandfather of Frances Wolley. The learned Judge said that, in the absence of any evidence to the contrary, the jury might presume that they died without issue, and the jury found a verdict for the plaintiff.

Campbell now moved for a new trial on two grounds; first, that the will of T. Wolley was improperly received in evidence, for that the plaintiff should have called the existing subscribing witness to prove the due execution of it. There is a great difference between deeds and wills; the former take effect from the execution, the latter from the death of the testator. They should not, therefore, be received in evidence without proof of the execution, until thirty years from the death of the testator have elapsed. Besides, whatever might be the case, if the witnesses could be presumed to be dead, that cannot apply where evidence of their existence has been given. In M' Kenire v. Fraser, 9 Ves. 5, it appears to have been thought that the evidence of a subscribing witness to a will, bearing date more than thirty years before the trial, could not be dispensed with, unless it were shown that he could not be found. Secondly, the learned Judge ought not to have allowed the jury to presume that the elder brothers of Frances Wolley's grandfather died without issue. Doe v. Griffin, 15 East, 293, goes further than any former case: there it was proved that a person went abroad and died there, and that none of his family ever heard that he was married, and it was held that he might be presumed to have died without issue; but there the party having died abroad, other evidence could hardly be expected, and that was contrary to the case of Richards v. Richards, cited in a note to the report.