money due to him from Sherwin, when he was told Sherwin was not at home. Another creditor, who called about the same time for the same purpose, having received a like answer, became exceedingly boisterous, when Mrs. Sherwin appeared, and having endeavoured in vain to appease him, Sherwin was at length seen peeping over his wife's shoulder.

Hicks, another witness, stated, that he also called for money due to him, when Sherwin appeared from behind a partition at the back of the shop; but seeing the witness, immediately retired, and Mrs. Sherwin, who came forward, said her husband was not at home.

Upon this part of the case, Bosanquet J., before whom the cause was tried, directed the jury to consider "whether Sherwin had kept his house; had wilfully secluded himself; that is, had withdrawn himself from a part of the house where he was likely to meet with his creditors, to a more retired part."

The credit, however, of other witnesses called by the Plaintiff having been materially impaired, and his case being open to infirmatory observations in other respects, a verdict was found for the Defendant; whereupon

Taddy Serjt. moved for a new trial, on the ground of a misdirection as to the evidence of Willis and Hicks, and of the verdict being against that evidence. The learned Judge, he contended, had laid down the law too narrowly. Beginning to keep his house," in the language of the statute, was not confined to a trader's secluding himself in a retired part of his dwelling, or locking himself up; it was equally a beginning to keep house, if the trader shirked from a creditor, by eluding his approach, even if he only retreated behind his wife's back. In like manner, the breach of an appointment was holden to fall within the words, "departing from his dwelling-house, or otherwise absenting himself,"

Gilling

1832.

KEY

V.

SHAW.

1832.

KEY

ข.

SHAW.

Gillingham v. Laing. (a) The direction of the learned Judge would have been proper for a state of facts such as occurred in Dudley v. Vaughan (b); but it was likely to mislead the jury, where the keeping house was not so much by retiring to a less frequented part of it as by eluding the eye of the creditor.

TINDAL C. J. I think the Court ought not to grant a rule in this case. It has been objected that the learned Judge did not point the attention of the jury to that class of acts of bankruptcy on which the Plaintiff relied, and that he only put it to them to enquire whether the party had wilfully secluded himself from a creditor. Even if he had stopped there he could not easily have been misunderstood; for the jury might well apply the term wilfully secluded to a momentary concealment. But the learned Judge added words explanatory of what he meant by wilfully secluded, namely, whether the party withdrew himself from a part of the house where he was likely to meet with creditors to a more retired part? That exactly meets the testimony of Hicks and Willis; and as evidence was adduced on the part of the Defendant, on which the verdict of the jury might fairly proceed, the rule must be refused.

PARK J. The summing up of the learned Judge was as favourable for the Plaintiff as the case admitted; and the question was correctly put to the jury.

A mere omission to keep an appointment is not, as it has been suggested by my Brother Taddy, an act of bankruptcy. That was expressly determined in Tucker v. Jones. (c)

GASELEE J. concurred.

(a) 6 Taunt. 532. (b) 1 Campb. 270.

(c) 2 Bingh. 2.

BOSANQUET

BOSANQUET J. My attention had been called to the precise point, by a reference to the case of Fisher v. Boucher (a); and I told the jury, that if the party had wilfully secluded himself from a creditor, he had committed an act of bankruptcy, explaining, at the same time, the sense in which I employed the term secluded.

(a) 10 B. & C. 705.

Rule refused.

1832.

KEY

V.

SHAW.

THIS

GALL V. ESDaile.

April 25.

"As to the rest of my

to my

wife for

life; after her decease, that

in S. to my daughter, the

my two sons.

The rest of

HIS was an action for recovering back the deposit paid by the Plaintiff as purchaser at a public auc- estate, my two tion of a freehold messuage and premises in St. John's houses in S. Lane, West Smithfield, in the county of Middlesex, and T. I give and interest thereon; and also for recovering the costs and damages sustained by the Plaintiff by reason of the Defendant's inability to establish a good title. At the trial before Alderson J., London sittings in other between Trinity term 1831, a verdict was entered for the Plaintiff, damages 300l., subject to the opinion of the Court on a case, which stated that the sale took place on or about the 1st of July 1828, and the Defendant delivered his abstract of title to the Plaintiff, purporting to be an abstract of the title of the said William Esdaile to a messuage or tenement and premises situate in St. John's Lane, West Smithfield, in the county of Middlesex, therein stating (among other things), according to the fact, that John Mayor, citizen and lorimer of London, being seised in fee-simple of two freehold messuages or tenements and premises, with their appur

tenances,

my estate of what kind soever, one third

to my wife, the rest equally

among

the

three chil

dren." The testator had no real property but the two houses: Held, that the daughter took a fee in

the house in

S.

1832.

GALL

V.

ESDAILE.

tenances, one of the said messuages being situate in St. John's Lane aforesaid, and the other in Togwell Court, Charterhouse Lane, made his will, duly executed and attested, dated the 15th of July 1735, in the words following: that is to say, "I John Mayor, citizen and lorimer of London, being in health of body, and of sound mind, understanding, and memory, do make and declare this my last will as followeth :- Firstly, 1 give my soul to God, that gave it me, resting for the salvation thereof on the alone merits of Jesus Christ, my Redeemer; my body I commit to the grave, to be decently interred at the discretion of my executors hereinafter named: and as to such worldly estate as it hath pleased God to bless me withal, I give or dispose of as followeth :- First, to my brother, Joseph Mayor, one pound one shilling; and to his wife, Sarah Mayor, the same sume, to by each of them a morning ring. To my dear and loveing mother, the sum of five pounds. As to the rest of my estate, the two houses, one in St. Joneses Lane, the other in Togwell Court, Chatehous Lane, I give to my loveing wif, Mary Mayor, for her life; and after her decease, that in St. Joneses Lane to my daughter, Mary Mayor; the other betweane my two sons, John and Joseph Mayor, to be equally divided. As to the rest of my estate, of what nature soever, one third to my wife, and the rest to be divided equally among the three children. And I do hereby make my dear wife and brother, Joseph Mayor, joynt executors of this my last will, revoking all former wills by me at any time heretofore made, and declare this to be my only last will and testament. In witness hereunto I have set my hand and seale this 15th day of July 1735." The said John Mayor left no real property beyond that specifically stated in the will.

Mary Mayor, the daughter, survived the testator,

and

and also her mother; and her interest in the said premises in St. John's Lane, or St. Jones's Lane (which were the premises purchased by the Plaintiff), was, at the time of the sale, vested in the defendant.

On the receipt of the said abstract of title, the Plaintiff objected to the title on the ground that Mary Mayor, the daughter, took a life interest only in the house in St. John's Lane under the specific devise in the will of the said John Mayor, her father, and the remainder in fee in one third part of two third shares thereof under the residuary disposition contained in the same will: so that the title to the remainder in fee of the one third share of the testator's widow, and of the two third parts of the two third shares devised to the testator's two sons, remained to be deduced from the widow and the sons.

The Defendant insisting that Mary Mayor took a fee in the entirety of the premises after the death of her mother, and the Plaintiff refusing to complete his purchase, the defendant, in Michaelmas term 1828, filed a bill in equity against the Plaintiff to compel a specific performance of the agreement for the purchase of the said premises; but the bill was, on the hearing, dismissed with costs.

It was agreed between the Plaintiff and Defendant, that, if the will of John Mayor was insufficient to ass the fee in the entirety of the said premises to the said Mary Mayor after the death of her said mother as aforesaid, the verdict should stand for the Plaintiff for the said sum of 300l., but if otherwise the verdict was to be entered for the Defendant.

Scriven Serjt. for the Plaintiff. Mary Mayor, the testator's daughter took only an estate for life. It is true the word estate is sufficient to carry a fee, if, from VOL. VIII. Ꮓ

the

1832.

GALL

V.

ESDAILE.