antecedent to the period when these sums were written in? If one looks at the deed, and particularly at that part of the deed which my learned. brother nas referred us to, it is quite impossible that the deed could be considered as having any operation till these sums were actually written in, because, what was the object of the deed? The object of all the deed was to convey the estates to trustees, that those estates might be sold, and that the proceeds of those estates might be applied to pay certain creditors' debts, which were to be ascertained. In the preparation of the draft of this deed, blanks were left for the insertion of the sums when those sums should be ascertained. When these parties met in the King's Bench prison, can it be said that that was a perfect execution of the deeds, when the sums that were due to these creditors remained unascertained? The operative part of the deed refers to the payment of particular sums, which, as then, were unascertained. It is quite clear, if nothing had passed at this time, that the deed could not be an operative deed until those sums were introduced, because the great object of the deed was the payment of those sums. I think, therefore, taking it in this point of view, that this was not to be considered as an execution of the deed, that this was not a complete deed, — and that therefore the case falls within the authority of the case in Cowper, and not within the law which is extracted from Perkins. This deed, as I have stated, undoubtedly was not to be considered as complete until the sums were introduced. But it has been said, if it was delivered to the party, it could not be delivered as an escrow, unless so delivered, in terms. Perhaps, technically speaking, this is so; because a deed delivered to a party is not an escrow a deed delivered to a stranger is an escrow till something is done: but though it is delivered to a party, there are cases, and in the same page, to which my learned brother referred, to show that it is not a perfect and complete deed; Com Dig. tit. Faits (A 3:) "So if it be once delivered as his deed, it is sufficient, though he afterwards explained his intent otherwise, as if an obligation be made to A. and delivered to A. himself as an escrow, to be his deed on the performance of a condition, this is an absolute delivery, and the subsequent words are void and repugnant." The authorities referred to in the text, in support of this position, are at least conflicting; but in the next division (A 4) it appears that this position about delivery as an escrow is merely a technical subtilty; for the learned writer says, "If it be delivered to the party as an escrow, to be his deed on the performance of a condition, it is not his deed till the condition is performed, though the party happens to have it before the condition is performed." This he lays down on his own authority, without referring to any case; and I am warranted in saying we cannot have a better authority than that learned writer. Let us see how that doctrine applies to the present case. The parties meet; something is to be done before a complete deed can be made; the sums are to be ascertained which the different creditors are to be paid. That cannot be ascertained that day; it is ascertained at a subsequent day, and they are written in. Take it, if you please, that this is a delivery of the deed as a deed; is it not a delivery of the deed in the language of Lord Coke, upon condition; that is, upon condition that something is to be done, which at that time was not done? That something is afterwards done: then, and not till then, it becomes a perfect deed. It seems to me, therefore, without touching any of the cases that have been decided on the operation of deeds, we may say that this deed was

not a complete deed, executed so as to have effect in the hands of the parties until these sums were written in.

I shall not, after what I have said, travel through the different cases that have been cited with respect to the alteration of deeds; but I beg not to be taken as deciding, that if a deed be altered with the consent of all the parties, after it is executed, it is not to be considered as a good deed. I think, if we were driven to examine that question, it would be found that, in these times, whatever might have been thought formerly, if all the parties assent to the alteration of a deed, it will, in its altered shape, be a good deed; but I do not decide this case on that ground. I decide it on this, that it either was no deed at all. until the sums were written in, and that then the jury were warranted in presuming a delivery to make it a deed; or, if it were a deed, it was delivered only to have operation from the time that those sums were written in, which were to give it all its effect. I think we must take it, from what passed at the time of the execution, it was not to be considered as having effect, till it could have its full effect, by all the sums being written in, that were to be written in. On these grounds I am of opinion that the rule should be discharged.

My brother Burrough, (a) who heard the argument, desired I should state he concurred in this opinion.

GASELEE, J. This case has been extremely well argued, and a great many authorities have been referred to, which it is not necessary to go through at length. The authority that struck me the most, as against the opinion of my Lord Chief Justice, as now delivered, was the passage cited from Buller: "If there be blanks left in an obligation in places material, and filled up afterwards by the assent of the parties, yet is the obligation void, for it is not the same contract that was sealed and delivered." That is certainly borne out by the authority in Roll's Abr. But I think the instance which he specifies is not borne out by the authority to which he refers. He goes on:- -" as if a boud be made to C., with a blank left for his Christian name, and for his addition, which is afterwards filled up." I should certainly have thought that the leaving the blank for the Christian name and the addition, imported of itself it was to be afterwards filled up; and I think that Mr. Justice Buller's position is not warranted by the authority to which he refers. Certainly this case does not range itself within the first part of this sentence, because, notwithstanding the degree of industry with which my brother Wilde has cited cases, and the confidence with which he argued that the contract was altered, I cannot agree with him on that; it appears to me, from what was done in this case, that the contract was not altered. What was the object of the contract? The contract was to pay all that Revett was indebted to Mills, and other creditors; that which was uncertain when the deed was first executed, or rather when the deed was originally sealed, was afterwards reduced to a certainty. And the way in which I consider that this deed is good, is this, that it was an imperfect execution, with an agreement at the time that it should take effect when the blanks were filled up. There was a meeting for that purpose, the sums at that time were agreed to, and it was filled up by Brown, who was adopted as the agent of both parties; and he took away the deed for the purpose of carrying it to other parties, by whom it was also to be executed. It is said that the defendant Revett never had himself the possession of this deed. No; but a deed may be delivered either by taking hold of the deed itself, or by words, or by acts. (a) He was at chambers. Park, J., was absent, from ill health.

The permitting this person to take the deed away for the purpose of the other parties' executing it, is of itself fit to be left to the jury, as a ques tion whether or not that was not (if a redelivery should be held to be necessary) a redelivery on the mere insertion of the sums. On that ground I am of opinion this trust deed is to be considered as good.

With respect to the witness Brown, I should have great difficulty on the subject, taking it in the usual course, in saying that Brown would be at witness. He is a party to the deed, and he had, at the time of the trial, incurred expenses, and the expenses were to be paid according to the terms of the deed. But, considering it in the point of view in which my Lord Chief Justice has considered it, and in which I have known issues, directed by the Court of Chancery, treated, where the object was to satisfy the conscience of the Court; if, upon the whole, we see that justice has been done, there is no occasion to send it down to a new trial. Now, has justice been done here? and does it depend really and singly on the testimony of Brown? First of all, What is the probability? The proba bility of the case is, that it was left for future consideration. There are

a great many blanks when the deed is carried to be executed the first day in the King's Bench; all the blanks are filled up, except Mills's debt; the probability is that, at that time, Mills's debt was not ascer tained; we have it from Brown it was done the next day. Does it rest on his evidence only? Mr. Chapman says, "I saw Revett afterwards, with the draft of the deed before him; he was reading; he told me he had executed it, and that he had got time: therefore the evidence of Chapman shows that what was done the second day of meeting was done with Revett's assent. But it does not rest there; it appears that Revett was cognizant of all he had done, and he expressly acts upon and confirms the deed; for he says, in a letter to Moss, a tenant, "Having this day executed to Mr. Thomas Hudson, of the firm of Messrs. Harveys and Hudsons, bankers at Norwich, a conveyance of all my estate and hereditaments, in trust, for the purpose of satisfying various charges and encumbrances on the above property, I write to desire that you will in future pay your rents to the said Thomas Hudson, or his appointed receiver, whose receipt will be a sufficient discharge." That letter, therefore, shows the confirmation of the contract; it shows he was aware of what had been done, and I think satisfies the Court that the jury, upon this occasion, have done justice.

Rule discharged.

In an action for a libel, it is no plea that the defendant had the libellous statement from another, and upon publication disclosed the author's name.

To the ninth count of a declaration for libel, the defendant, after pleading the general issue, pleaded, secondly, As to the publishing, and causing and procuring to be published, the following parts of the said supposed libel of and concerning the said plaintiff, in the said ninth count of the said declaration mentioned, with the intent and meaning therein mentioned: to wit," Mr. De Crespigny told Mr. Wellesley he was wrong in supposing he had spoken to his father, Sir W. De Crespigny, (meaning the said plaintiff) he had written a letter to him, and he had his (meaning the said plaintiff's) answer, in which he admitted the fact; and that his wife, Mrs. De Cres

pigny, and himself had the letter; that all of the family knew of the circumstance, (intimancy,) that his poor brother William, who is dead, was extremely jealous of his father, (meaning the said plaintiff,) and had been turned out of his house; that his mother had told him that a child had been born, and that it had been her conclusion that his brother Herbert had spoken to his father (meaning to the said plaintiff) upon the subject, who replied that he (meaning the said plaintiff) entreated that so distressing a subject might not be again mentioned to him, (meaning to the said plaintiff;) the Rev. Mr. De Crespigny told Mr. Wellesley he thought he was quite right not to allow his children to remain with people so infamously connected. Mr. De Crespigny informed Mr. Wellesley he had seen the Miss Longs yesterday, at their house in Berkshire, and that he had directly accused Miss Emma Long with her intrigue, upon which she got so confused that she left the room in the greatest embarrassment; that he then stated to Miss Dora Long, that Miss Emma Long had intrigued with his father, (meaning with the said plaintiff,) and that Mr. Wellesley (meaning the said defendant) intended to publish the whole story, unless they immediately gave up his children: Miss Long replied, that she had nothing to do with her sister's intrigue, and she must be responsible for her own conduct; but that no one would believe what Mr. Wellesley said: Mr. De Crespigny assured Mr. Wellesley that she never denied her sister's having committed the fault: Mr. De Crespigny told her his father had confessed it, (not denied it ;) to which she made no reply, but put herself into a violent passion, and said she did not wish to see any of Mr. Wellesley's friends within her house ; — notwithstanding such declaration, she invited Mr. De Crespigny to dine with them, and to sleep at Binfield House; the above minutes were shown to Capt. De Brooke, and on the part of the Rev. H. C. De Crespigny he admitted them twice to be correct, with the exception of one word, viz., that for confessed it, the words not denied it ought to be substituted;" the said defendant, by leave of the Court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says, that the said plaintiff ought not to have and maintain his aforesaid action thereof against him, because he says, that before the publishing of the said parts of the said supposed libel in the said ninth count of the said declaration mentioned, to wit, on the 5th day of December, in the year of our Lord 1827, at, &c., the said Rev. H. C. De Crespigny told the said defendant that he was wrong in supposing that he, the said H. C. De Crespigny, had spoken to his father, Sir W. De Crespigny he had written a letter to him, and that he had his (meaning the said plaintiff's) answer, in which he (meaning the said plaintiff) admitted the fact; and that his (the said H. C. De Crespigny's) wife and himself had the letter; that all the family knew of the intimacy; that his poor brother William, who was dead, was extremely jealous of his father, (meaning the said plaintiff,) and had been turned out of his house; that his brother Herbert had spoken to his father (meaning the said plaintiff) upon the subject, who had replied, that he (meaning the said plaintiff) entreated that so distressing a subject might not be again mentioned to him, (meaning to the said plaintiff:) and the said H. C. De Crespigny then and there further told the said defendant, he thought he was quite right not to allow his children to remain with people so infamously connected: And the said H. C. De Crespigny, afterwards, and before pub

lishing the said libel in the introductory part of this plea mentioned, to wit, on, &c., at, &c., further told the said defendant that he had seen the Misses Long yesterday at their house in Berkshire, and that he, the said H. C. De Crespigny, had directly accused Miss Emma Long with her intrigue, upon which she got so confused that she left the room in the greatest embarrassment; that he then stated to Miss Dora Long, that Miss Emma Long had intrigued with his father, (meaning the said plaintiff,) and that Mr. Wellesley (meaning the said defendant) intended to publish the whole story unless they immediately gave up his children. That Miss Long replied, she had nothing to do with her sister's intrigue, and that she must be responsible for her own conduct, but that no one would believe what Mr. Wellesley said; and the said H. C. De Crespigny assured the said defendant that she never denied her sister's having committed the fault. Mr. De Crespigny told her his father had not denied it; to which she made no reply, and said she did not wish to see any of Mr. Wellesley's friends within her house: notwithstanding such declaration, she invited Mr. De Crespigny to dine with them, and to sleep at Binfield House. And the said defendant further said, that before the publishing the said parts of the said supposed libel in the introductory part of this plea mentioned, to wit, on, &c., at, &c., certain minutes and statements in writing were made as and for correct minutes and statements of the said communications and representations so made by the said H. C. De Crespigny es aforesaid, and the same were then and there revised and corrected by the said H. C. De Crespigny; and when so revised and corrected, contained, and still do contain, the words and matter following, with the interlineations and alterations as follows: (here followed a statement of the minutes as revised and corrected by the Rev. H. C. De Crespigny. The expression not denied was substituted for confessed ; and the statement that his mother told him a child had been born, was erased; in other respects the minutes corresponded with the foregoing statement.) And the said defendant further said, that afterwards, and before the publishing of the said parts of the said supposed libel, in the said ninth count mentioned, to wit, on, &c., at, &c., the said H. C. De Crespigny caused the said minutes and statements, so revised and corrected by him as aforesaid, and containing the words and matter last aforesaid, to be delivered to him, the said defendant, as and for a true and correct statement of the conversation he, the said H. C. De Crespigny, had had with the said defendant as aforesaid; and the said minutes were theretofore, to wit, on, &c., at, &c., shown to the said Captain De Brooke, in the presence the said Colonel Freemantle, Mr. Saville Lumley, M. P., and Colonel Paterson. And the said defendant further said, that at the time of the publishing the said parts of the said supposed libel in the said ninth count and in the introductory part of this plea mentioned, as therein mentioned, he, the said defendant, also published that the same had been so published to him by the said H. C. De Crespigny, therein mentioned as aforesaid; wherefore he, the said defendant, at the said several times when, &c., in the said ninth count mentioned, did publish of and concerning the said plaintiff the said several parts of the said supposed libel in that count mentioned, as he lawfully might for the cause aforesaid, and this he is ready to verify, &c.

To this plea there was a demurrer; and many causes of demurrer were specified and argued; but as the decision turned altogether on the general question, it is unnecessary to state the other points.