while I agree with the rest of the court that that case is distinguisable, I do not agree in the opinion of my brother Grove as to the grounds upon which it was decided. Looking to the peculiar facts of that case, and the arguments upon either side, I cannot help thinking that all the case decides is that, although the first landlord was estopped from suing, his assignee was not. I make this observation because I think that a hard case ought to be confined as far as possible in its operation.

KEATING J.-I am of the same opinion for the reasons which have been given. Rule discharged.

Attorney for the plaintiff: H. Samler, for Burrow, Collumpton.

Attorneys for the defendant: Church and Clarke.

COURT OF EXCHEQUER.

Reported by T. W. SAUNDERS and H. LEIGH, Esqrs., Barristers-at-Law.

Friday, Feb. 12.

MURPHY v. BOESE.

Statute of Frauds (19 Car. 2, c. 3) sect. 17-Vendor and vendee-Sale of goods-Memorandum signed by vendor's traveller-Signature of vendee's name by-Evidence of agency-Authority.

The plaintiff's traveller, on taking an order for goods from the defendant, wrote out, in the ordinary course of his business, in his own order book, and in the defendant's presence, a memorandum in duplicate of the order, writing therein the name of the defendant as purchaser, and handing one of such duplicate memoranda to the defendant, who kept it; and it was

Held by the Court of Exchequer (Bramwell, Pigott, and Pollock, BB.), distinguishing the case from Darrell v. Evans and others in the Exchequer Chamber (7 L. T. Rep. N. S. 97; 1 H. & C. 174; 31 L. J. 337, Ex.) that the traveller, in what he did, was acting in the ordinary course of his business on behalf of the plaintiff alone, and that there was no evidence that he signed, or had any authority to sign, the memorandum as the agent of the defendant within sect. 17 of the Statute of Frauds, and therefore the plaintiff's rule to set aside a nonsuit must be discharged. THIS was an action for not accepting and paying for certain goods. The first count of the declaration was for money payable for goods sold and delivered by the plaintiff to the defendant, and on accounts stated. The second count charged that the plaintiff and the defendant agreed that the plaintiff should sell and deliver, and the defendant should buy and accept, certain goods, to be paid for either in cash in fourteen days from date of invoice, less 2 per cent. discount, or by three months' bill, cases free, goods carriage free to London. Averment of all conditions &c., and breach assigned that the defendant did not nor would accept the said goods nor pay for the same either in cash or by bill as agreed, but therein made default and neglected and refused to do so.

The defendant pleaded, first, to the first count, never indebted; secondly, to the second count, a denial of the agreement as alleged; thirdly, to the same count a denial of the several breaches therein assigned; fourthly, to the same count that

[Ex.

the plaintiff was not ready and willing to deliver on the terms agreed.

On these pleas issue was joined and at the trial of the action before Bramwell, B., at Westminster, at the sittings after last Michaelmas Term, it appeared that the plaintiff, trading under the name of Brown and Co., carried on business as a clock and fancy ornament manufacturer, at 68, Rue de Bondy, Paris, and 30, Knightrider-street, London; and that the defendant was a tradesman dealing in such articles, and carrying on his business at Kidderminster. On the 14th July 1874, a traveller of the plaintiff called on the defendant at Kidderminster, and solicited an order for clocks and ornaments, producing at the same time photographs of the different designs, and the defendant orally agreed to purchase certain articles, amounting altogether in value to £29 Os. 9d. The traveller entered the order, stating the different articles and the prices, in his order book, in his usual course of business, and in the defendant's presence, and at the defendant's request he gave a duplicate copy of the order to the defendant. The duplicate order given to the defendant had the following printed heading upon it: "Ordered from John Brown and Co., 68, Rue de Bonda, Paris, and 30, Knightrider-street, London. Terms 2 per cent. discount for cash in 14 days, from date of arrival, or net three months' bill. Goods carriage free to London." blanks for the date and the name and address of the purchaser, which were filled up by the traveller, in pencil, at the time of taking the order, as follows: "14th July 1874." "Bernard Boese." "24, High-street, Kidderminster." The defendant did not sign the order, or any memorandum in relation thereto.

Cases free. There were

The goods in the plaintiff's course of business would be sent from the Paris establishment to the house in London, whence they would be forwarded by rail to the defendant at Kidderminster. Accordingly on the 6th Oct. the defendant received from London an invoice of the goods, dated " Paris, 30th Sept. 1874," in the heading of which invoice were the following words in print: "Not responsible for breakage." Upon reading these words in the invoice, the plaintiff immediately, on the same day, wrote to the plaintiff's house in London declining to take in the goods, unless the plaintiff relieved him of the responsibility of breakage, inasmuch as no such condition formed any part of his bargain with the traveller, to which letter the plaintiff on the 8th Oct. replied, that no vendor was accountable for injuries that goods might receive in transit, unless by special agreement to that effect, and that if the defendant declined to take in the goods the plaintiff would at once sue him for their value. On the 9th Oct. (in the defendant's absence), a case of goods believed to be from Brown and Co.,was tendered at the defendant's shop and refused, and on the following day the goods were again tendered, when the defendant refused to receive them. On the 15th Oct. the plaintiff's draft at three months for 291. Os. 9d. was tendered to the defendant for his acceptance, and was refused, and thereupon the present action was brought.

The learned judge directed a nonsuit to be entered, on the ground that there was no sufficient signature to the memorandum by the defendant, or by an agent on his behalf, to bind the defendant within sect. 17 of the Statute of Frauds; but gave

leave to the plaintiff to move for a rule if the court should be of opinion that the jury ought to have found for the plaintiff, and to enter a verdict for 291. Os. 9d. or such less sum as the court might direct; and no appeal without leave of the court.

Finlay, for the plaintiff, having accordingly moved for and obtained a rule to set aside the nonsuit and to enter the verdict for the plaintiff, if the court should be of opinion that there was evidence from which the jury might and should have found that the memorandum was signed by the plaintiff's traveller as the defendant's agent.

B. T. Williams, for the defendant, now showed cause against it.-At the top of the memorandum there is printed the name and address of the vendor, "Brown and Co." and then the plaintiff's traveller, when he called on the defendant and solicited an order from him, wrote the defendant's name in the memorandum in the usual course of his business as such traveller. The sole point is, was the traveller the agent of the defendant for the purpose of putting the defendant's name to the order? [BRAMWELL, B.-If the plaintiff's traveller was the defendant's agent, then, if he had inserted a larger sum than the actual amount of the goods, he would have been liable to the defendant in an action.] According to the old books, the agent or traveller of the vendor is not to be taken to be the agent of the other party to sign for him without express authority. It is so put by Mr. Addison in his book, where he says: "A mere clerk or traveller of one party cannot be treated as an agent to bind the other, unless it be shown that he had received specific and express authority to do so," and he cites numerous well known authorities in support of that proposition: (Addison on Contracts, p. 67, 6th edit., by Cave). The case that comes nearest to the present case, and on which the plaintiff will rely, is that of Durrell v. Evans and others, in the Exchequer Chamber, reversing the decision of this court (7 L. T. Rep, 97; 31 L. J. 337, Ex.). But the material parts of that case are very different from those of the present one. The court of error there came to the conclusion that there was authority for the plaintiff's factor signing the name of the defendants, because the latter requested to have the memorandum or sale note altered. There the memorandum was drawn up in duplicate by the plaintiff's factor in the presence of the defendants, and handed to them, when they desired an alteration to be made in the date, so that they might, by the custom of the hop trade, have a week's more time for payment. It was on that fact, as a recognition of the contract between the parties, that the Court of Exchequer Chamber came to the conclusion, opposed to that of this court below, that there was evidence for the jury that the factor was the agent of both parties, for the purpose of drawing up a written record of the contract binding upon both of them; and that, if he were so, the name of the defendants written in by the factor at the head of the memorandum delivered to them was a sufficient signature by their agent, binding them to the contract, within the 17th section of the Statute of Frauds. That case has gone the farthest of any yet towards (what it almost amounts to) a repeal of the statute.

The present case does not go so far as that. Here the memorandum was merely written in the defendant's presence and handed to him. [PIGOTT, B.-It does not appear that the

[Ex.

defendant even looked at it.] No; that is so. It would be going further than any previous case has gone to hold the defendant bound by what was done here. The judgment of Blackburn, J., in Durrell v. Evans, in the Exchequer Chamber, is in point here. The learned judge said (at p. 101 of 7 L. T. Rep. N. S.), "I agree with what was said by my learned brothers Bramwell and Wilde below, as to bills of parcels and invoices; but (and here only I differ from the court below), I cannot look on the document in this case as being an invoice and only intended to be the vendor's account of the transaction. An invoice is not meant to be a mutual contract, but a statement by one party of his version of a mutual contract. Looking at the facts, I think there was plenty of evidence for the jury that the note was written out as a memorandum of the contract, binding on both parties, and that the name of Evans and Co.' was written on it at the defendant's request. I think Evans's request to Noakes to alter the date was strong evidence for the jury that it was the binding record of the contract between both." There is no evidence of that kind here, nor anything, it is submitted, to show that this memorandum was intended to be anything more than "the vendor's account of the transaction." Then there is another point, namely, the alteration of the terms of the bargain. The goods, by the terms of the memorandum, were to come carriage free from Paris to London." On the arrival of the goods at Kidderminster, the invoice had on it this memorandum, "not responsible for breakage," and on that ground, as being a new term, and an alteration which the vendor had no right to make, the defendant declined to receive the goods, and repudiated the contract. The nonsuit was rightly directed, and the defendant's rule should be discharged.

66

Finlay, for the plaintiff, contra, supported his rule.-With regard to the observation of Bramwell, B., that if the traveller was the defendant's agent, then the defendant would have an action against him, if he had inserted in the memorandum a larger sum than the actual price, I feel some difficulty; but here was a document drawn up under the defendant's eye, and then handed to him, and when the traveller signed it, he must be taken to have been made the defendant's agent for the purpose of signing the latter's name. There is nothing, it is contended, improbable in that. It may be conceded that it would require strong evidence to satisfy the court that a purchaser, a defendant, had intrusted a vendor's traveller to draw up for him a contract, a matter requiring the exercise of consideration and judgment, and to sign it for him; but far less evidence, and indeed very little, would be required to satisfy the court that he authorised the traveller to affix his name to a contract the terms of which were, as here, already drawn up, and it must be presumed in the ordinary course of business were known to the defendant. Apart from authority, and the cases decided on this question are most material to be attended to, it might be concluded that the word " signature" imported the actual manual signing by the party himself; but it is settled that if the name of the party appears anywhere in the body of the contract, that is a sufficient signature to bind the defendant (Johnson and others v. Dodgson, 2 M. & W. 653; 6 L. J., N. S., 185, Ex). [POLLOCK, B.-All the evidence in the present case is

66

not that the defendant authorised the traveller, but that he did not stop him in doing what appears to be the usual course of the traveller's business to do for his own purposes and convenience.] Duplicate copies were here made in the defendant's presence, and one of them was handed to and kept by him. Is it possible on principle to distinguish it from Schneider and another v. Norris (2 M. & S. 286), and numerous other similar cases ? In that case the name of the defendant, the vendor, was printed at the head of a bill of parcels, to which the vendor added in writing the names of the plaintiffs as buyers, and it was held to be a sufficient memorandum of the contract within the statute to bind the vendor. In Bird v. Boulter (4 B. & Ad. 443; 1 Nev. & Man. 313), an entry made in a sale book by an auctioneer's clerk who, as each lot was knocked down at the sale, named the purchaser aloud, and on a sign of assent from him, made the entry accordingly, was held to be a memorandum in writing by an agent lawfully authorised within sect. 17 of the statute. Wilkinson v. Evans, in the Common Pleas (L. Rep. 1 C. P. 407; 35 L. J., 224, C. P.; 1 Hay. & Ruth. 552), is an authority in favour of the plaintiff. There goods having been sold to the defendant, an invoice was sent to him, and defendant returned the invoice with the following note on its back, signed by him :-"The cheeses came to-day, but I did not take them in, for they were very badly crushed; so the candles and the cheese is returned." The plaintiff took back the candles and brought an action for the cheese, and it was held the contents of the invoice were sufficiently referred to by the note at its back, and the two together constituted a sufficient memorandum in writing of the bargain to satisfy the statute. [BRAMWELL, B.-That will not do here. The defendant here says "You the plaintiff agreed to send me these goods 'carriage free,' and I am not bound to take in goods with a liability to be responsible for breakage in the course of carriage.] Unless the court are prepared to overrule or to disregard the case of Durrell v. Evans in the Exchequer Chamber, the present rule, it is contended, must be made absolute.

BRAMWELL, B.-I am of opinion that we must discharge this rule. It is said, on the one hand, that we cannot distinguish this case from that of Durrell v. Evans in the Exchequer Chamber. On the other hand we cannot, I think, even though we should decide in seeming opposition to the Court of Exchequer Chamber, distinguish it from the words of the Statute of Frauds. Now, with regard to that case of Durrell v. Evans, I may say that I never thought that the memorandum there was an invoice. The court of error held, and, in my judgment, correctly, that it was a memorandum of the contract; and then the next question was, Did it contain the defendants' name, and, if so, was their name put there by their authority; and the Court of Exchequer Chamber held that there was evidence that the plaintiff's factor was the agent of the defendants, for the latter took part in the preparation of the memorandum. Now, if that was a wrong decision, it was wrong only in this respect, namely, that it may be perhaps said that the defendants in doing what they did did not intend to bind themselves, but only to suggest correct memorandum for the vendor. But, in the present case, the facts are very different.

a

[Ex.

What took place here was simply the ordinary course of business. The traveller made duplicate copies of the contract, it is not an invoice, and the only question is, did he do it as the authorised agent of the defendant? If anyone unacquainted with the law were asked, was the traveller here the defendant's agent ? he would, as a matter of common sense say, "certainly not; it would be unreasonable and absurd to suppose that there was any agency here." I confess that that may not be entirely satisfactory. An unreasonable thing does not mean something that is unreasonable in the opinion of an unlearned person, but of one learned and able to apply the law to the particular case, but still it is a test. Is there, then, any reason why we should go contrary to the opinion of an ordinary person? I cannot for myself at all see why we should hold that the traveller here was the defendant's authorised agent. He was acting strictly as his master's, the plaintiff's, traveller, and he made the memorandum in the ordinary course of his business as such; and the defendant took it from him as a matter of course. If he had read it and refused it, he would not have been bound. As my brother Pigott observed during the argument, if he was the defendant's agent, when did the agency commence ? Would it have been good if the defendant had been blind, or had been unable to read ? or if the copy had been written out by the traveller at an inn and sent to him, or if he had not been present, but his foreman had been, or if it had been sent to him a week afterwards from London? And as to ratification, a man cannot ratify a thing not done for him. It is absurd to suppose that the defendant could support an action against the traveller if the latter had acted dishonestly. With regard, then, to Durrell v. Evans, I do not think that it applies, for the ground of the decision there was the defendants having authorised an alteration in the memorandum. In the present case the traveller was not the defendant's agent "thereunto lawfully authorised."

PIGOTT, B.-I am of the same opinion. I was at first much struck by the case of Durrell v. Evans, but on a closer consideration of the matter I do not think that it has any application to the present case. Here there was nothing done by the defendant to authorise the traveller to act as his agent in the matter. It is true that he was present when the traveller wrote down the order in his book, and he afterwards takes the copy which the traveller leaves with him. Then, when the invoice arrives he demurs, and repudiates the bargain, on account of the addition of a new term to the contract. The question for us is, is there any evidence from which we can infer authority? There is certainly no express authority, and therefore it must be, if at all, an implied one. But I can see none, nor any evidence of any. At what moment did the traveller become the defendant's agent? Was it at the moment of writing down the order, or afterwards, when the defendant kept it? There is no other circumstance here than would have taken place if the traveller were only the agent of the vendor, and it would be strange to hold him to be the agent of the vendee, when the latter does nothing, and the traveller does no more than he usually does in the ordinary course of his business. The defendant has done nothing to create an agency, and never intended to do so, and I can see no

evidence of any authority. To hold the defendant liable under the circumstances of this case, which are precisely such as occur in every bargain of the kind, would be to fritter away and virtually to repeal the 17th section of the statute. I think therefore that the plaintiff's rule must be discharged.

POLLOCK, B.-I also agree with my learned brothers, that this rule must be discharged, and. for the reasons which have been assigned by them; and I don't know that I need add anything to what has already been said, except this, that it is extremely important in such a case, where the court is asked to infer agency, to see what is the character of the party, and what is the usual course of business. At first sight, where, of two contracting parties, one is the defendant and the other the agent of the plaintiff, it would seem to be contrary to one's general notions that the representative of the plaintiff, who has a hostile and contrary interest to that of the other party, the defendant, should become the representative and agent of that other party. The great case is that of the auctioneer's clerk, cited by Mr. Finlay; but that is an exception to the ordinary rule. This matter is well put by Lord St. Leonards, in his work on Vendors and Purchasers. His Lordship says (at pp. 146-7, 14th edit.): "The statute requires that, as to goods, some note or memorandum in writing of the bargain shall be made and signed by the parties to be charged by such contract, or their agents thereunto authorised. And yet it has been decided that the signature of the party to be charged by himself or agent is sufficient, even in a contract for goods, although the other party has not signed and consequently is not bound; so that there appears to be no difference between the two clauses of the statute in regard to the appointment and power of an agent. And it may now, after much discussion, be laid down generally, that an auctioneer is the agent of both parties upon a sale of lands or goods, so as to be enabled to bind them both under the statute, and an auctioneer's clerk, who takes down the biddings openly, is considered the agent of both the seller and purchaser. But" (his Lordship adds) "this principle of implied agency in an auctioneer is not extended to other cases.' He cites that case of Bird v. Boulter (ubi sup.), and refers also to the case of The Earl of Glengal v. Barnard (1 Keen 769), in which Lord Langdale, M.R., in his judgment, explains the reasons for the application of the principle to the case of an auctioneer, as affording intelligible ground for the decisions in Emmerson v. Heelis (2 Taunt. 38), and Bird v. Boulter, and similar cases, and then proceeds to say that in the case then under consideration (Glengal v. Barnard) the solicitor who, at the request of his client, the testator in the case, had drawn up a memorandum of the terms of a proposed marriage settlement between the plaintiff and one of the testator's daughters, containing the names of the contracting parties, and which memorandum was read over to the testator and the plaintiff, who both approved of it, was not in a position analagous to that of an auctioneer, and could not be considered as having acted on the occasion as the agent of both parties, lawfully authorised by them to bind them by his signature of their names in the memorandum, which he made for the purpose of stating the terms of the contract then contemplated, and that in performing

[Ex.

the ministerial act of writing down those terms, he had no authority to bind either party. Now the case that comes nearest to the present one is that of Durrell v. Evans, and it is curious that Lord Penzance (then Wilde, B.), in his judgment in the court below in that case seems to anticipate the present case: (sec report below 4 L. T. Rep. N. S. 254; 6 H. & N. 660; 30 L. J. 154, C. P.), I do not think that it is difficult to distinguish that case from the present one. In the first place the agency did not commence until after the memorandum was made out, and then came the alteration, which was made in it at the request and at the suggestion of the defendants, and that may well he held to have been an adoption by them of the memorandum, and considering the characters of the parties, and the object of their meeting in that case, we may not unreasonably conclude that their object was to make out a bought and sold note," and that the one person, the factor, should be the agent of both parties. For these reasons I think that Durrell v. Evans is not applicable, and that this rule should be discharged. Rule discharged.

Attorney for the plaintiffs, W. R. Buchanan. Attorneys for the defendant, Berkeley and Calcott, agents for Crowther, Kidderminster.

Monday, Jan. 18.

BERRINGTON v. SCOTT AND OTHERS.

Fines and Recoveries Act (3 & 4 Will. 4, c. 74, 88. 15, 22, 34)-Disentailing deed-Protector-Consent of" Under the same settlement"-Tenant for life not under the same settlement-When consent not necessary-Object of the statute. A disentailing deed, executed in pursuance of the 3 & 4 Will. 4, c. 74, s. 15, by a tenant in tail in remainder of lands under the will of A., who was tenant in fee in remainder expectant on the death of C., the tenant for life of the same lands under the will of B., is valid and effectual to bar the entail, although C., the tenant for life, was not a party thereto, as "protector" under the statute; because and C.'s consent is not necessary,

the

whose

"prior estate' of the person "consent " a8 "protector" is required by sect. 34 of the Act, must, by sect. 22 be an estate subsisting "under the same settlement" as that which created the estate tail; the object of the Act being to prevent a tenant for life not under the same settlement from interfering in the matter.

So held by the Court of Exchequer (Cleasby, Pollock, and Amphlett, BB.), in this case. THIS was an action of ejectment against the several defendants, in which, under the order of Pollock, B. dated the 14th March 1874, the defendant appeared and defended, as the landlord of all the defendants for the property claimed; and in pursuance of the leave and order of Bramwell, B., dated the 27th March 1874, according to the Common Law Procedure Act 1852, s. 179, there was stated for the opinion of the court the following

by law required for the devise of freehold estates, and thereby devised all his freehold and leasehold houses and property to his daughter Anne for life, with remainder to trustees to preserve contingent remainders, with remainder to her sons severally and successively in tail male, with remainder to her daughters in tail as tenants in common, with remainder to his brother, Jenkin Davies Berrington and his heirs for ever.

3, 4. The said Rhys Davies did not at any time revoke or alter his said will, and continued to be seised of and entitled to the said freehold and leasehold houses and property, up to the time of his decease, which occurred in Nov. 1809, leaving his said daughter Anne, and his said brother, Jenkin Davies Berrington, him surviving, and his will was duly proved by the executrix.

5. The above-named Anne was married in or about the year 1810, to Col. Perrott, who died in 1850, and the said Anne died on 31st March, 1872, without ever having had issue.

6. The above-named Jenkin Davies Berrington, after the death of his said brother, Rhys Davies, duly made and published his will, dated 7th May 1834, and duly attested as then by law required for the devise of freehold estates, whereby, after reciting (among other things) that he was entitled, in the event of his niece, the said Anne Perrott, dying without issue, to certain freehold houses and other property in the town of Swansea, and in the parish of Oystermouth and Bishopstone, in the county of Glamorgan, under the will of his late brother, Rhys Davies, deceased, he gave and devised the same as follows, that is to say, after making two several devises of certain properties therein specified (and which are not the subject of this action), unto his daughter, Arabella Davies Berrington, and his son, Jenkin Davies Berrington, respectively in fee, he gave and devised unto his son (the defendant), William Morgan Davies Berrington, and his said daughter, Arabella Davies Berrington, their heirs and assigns, as tenants in common and not as joint tenants, two-thirds of all his other house and reversionary property situate in the town of Swansea aforesaid; and he gave and devised unto his son, Rhys Davies Berrington, and his heirs lawfully begotten, the other one-third of his said houses and other reversionary property as aforesaid; and in default of issue by his said son, Rhys Davies Berrington, he gave and devised the said other third part or share unto his said son, Jenkin Davies Berrington, his heirs and assigns.

7, 8. The said Jenkin Davies Berrington (the father) duly made a codicil to his said will, dated 10th May 1834, not affecting his said will so far as is hereinbefore set forth, and died on the 12th May 1834, leaving his said three sons and daughters surviving, and without having in any manner altered or revoked his said will and codicil, and the same were duly proved by the executors.

9. By indentures of lease and release, dated respectively the 1st and 2nd Aug. 1838, and made between the above-mentioned Rhys Davies Berrington of the one part, and David Edwards of the other part, and duly enrolled in Chancery on the 4th Aug. 1838, the said Rhys Davies Berrington,for the consideration therein expressed, and in order to dock and bar and extinguish all estates tail, and all remainder and reversions of and in the thereinafter described messuages, lands, and hereditaments, granted and conveyed to the said D.

[Ex.

Edwards and his heirs (inter alia) All that one undivided third part or share of him the said Rhys Davies Berrington, of and in all those two several messuages or dwelling houses and shops, with the appurtenances thereunto belonging, situate in Castle-square, in the town of Swansea, in the county of Glamorgan, and then in the respective tenures or occupations of John Millward and Mary Davies, spinster (which do not form any part of the claim in this action) together with all the appurtenances to the same hereditaments and premises belonging, and all (if any) other hereditaments and premises which in and by the said recited will of the said Jenkin Davies Berrington, deceased, were devised to the said Rhys Davies Berrington in fee simple or in fee tail, and the reversion, &c., and the estate, &c., to hold the same unto the said David Edwards and his heirs, freed and absolutely discharged of and from the estate tail of the said Rhys Davies Berrington therein, and of and from all other estates tail, remainders, reversions, conditions, and limitations thereupon expectant and depending, but nevertheless to the uses upon and for the trusts, inter.ts, and purposes thereinafter declared of and concerning the same (that is to say) To the use of such person or persons, for such estate or estates, &c., and to and for such uses, &c., and in such manner and form as the said Rhys Davies Berrington by deed or will respectively signed sealed, and delivered, or executed and attested as therein mentioned, should appoint, give, or devise the same. And in default of, and until such appointment, gift, or devise, and as to such part or parts of the hereditaments and premises of which no complete appointment, gift, or devise should be made, or to which any such appointment, gift, or devise should not extend, to the use of the said Rhys Davies Berrington and his assigns during his life, and from and after the determination of that estate by any means in his lifetime to the use, &c., (the ordinary dower uses), with remainder to the only use and behoof of the said Rhys Davies Berrington, his heirs and assigns for ever.

11 and 12. The above mentioned Rhys Davies Berrington by his will, bearing date the 31st Jan. 1840, duly executed and attested as by law required, gave and bequeathed all his real and personal estate whatsoever or wheresoever which he might die possessed of, or which he might thereafter become possessed of or entitled unto either in reversion, remainder, or expectancy at the time of his decease, unto his brother the above-mentioned defendant, William Morgan Davies Berrington, and his sister Arabella Davies Berrington, their heirs and assigns for ever, share and share alike as tenants in common, and not as joint tenants.

13, 14. The above-mentioned Rhys Davies Berrington died on the 20th August 1841, without having had issue, and without in any way altering or revoking his said will, and leaving his said eldest brother and heir at law, Jenkin Davies Berrington (the father of the plaintiff), since deceased, and his brother, the above-named defendant William Morgan Davies Berrington, and his said sister Arabella Davies Berrington, him surviving, and his will was duly proved by the

executor.

15. The above-mentioned Arabella Davies Berrington died unmarried on the 21st Jan. 1842,