1820. HALFORD บ. DILLON. Margaret and Ann Parker without issue male, to Hyde Parker for life, with remainder to his first and other sons in tail male, with remainder to William Parker (eldest son of Sir Hyde Parker) for life, with remainder to his first and other sons in tail male, with remainder to William Parker (now the said Sir William Parker, Bart., and eldest son of William Parker, the son of Hyde Parker) for life, with divers remainders over. And he declared it to be the true meaning of his will, that the above mentioned estate should, after the decease of his daughters Margaret and Ann Parker, without issue male, constantly go along with and descend into the right heir male of the Parker family in the manner he had limited the same; as such heir male would inherit his title, therefore, it was his will that such his estates and title should descend and be enjoyed together as long as might be, and the laws of England would permit. Sir William Parker, Bart., therefore, the real Plaintiff, insisted, that, all intermediate persons being dead, he was now entitled to the premises in question under the will of Sir Henry John Parker. Mr. Dillon, however, contended that Sir Henry John Parker had no power to dispose, by his will, of the Talton estate, he being, as was contended, at the time of making his will, seised for life only of that estate, And this was contended on two grounds. First, That Sir Henry John Parker, having accepted certain benefits devised to him by the will of his son John Parker, (which John Parker had taken upon himself by the same will to devise the Talton estate to his father for life, with remainder to his sisters of the half blood Margaret and Ann Parker in fee,) had, thereby, elected to abide by and confirm his son's will in all parts; and that, by such acceptance and election, he was either actually divested of the reversion in fee reserved to him by by the settlement of 1741, or else, that he and all persons claiming under him were estopped from setting up that settlement, or otherwise controverting the right of John Parker to dispose of the fee of that estate to his two sisters. Secondly, that the jury ought to have been directed to presume, that some conveyance of the reversion in fee had been made by Sir Henry John Parker to his son John Parker. On the first point, many equity cases respecting election, from Noys v. Mordaunt (a) to Broome v. Monk (b), were cited, from which it was argued, that the doctrine of election is a doctrine of the common law, and borrowed from thence by courts of equity; and that, although the interposition of a court of equity may, in certain cases, be necessary to compel a party to elect, yet, that when he has made his election to take under the will, and has accepted the benefit thereby given to him, (as was argued to be the case here), the aid of such a court was not necessary to divest him of any property which he held in repugnance to the will; but, that, in such case, he was ipso facto divested or estopped by the operation of the common law. It was further argued, that, at the common law, a man may be estopped not only by record or deed, but also by matter in pais, as by the acceptance of an estate. And the Court was referred to Littleton's chapter on Remitter, with Lord Coke's commentary thereon, and to other authorities respecting the surrender of an old, by the acceptance of a new lease, for the purpose of shewing, that a man may lose his older and better title to an estate, by accepting a conveyance from another. (c) And, finally, the Court was pressed with the authority of two more modern cases, Goodtitle, dem. Edwards v. Bailey (d) and Doe dem. D. of Devonshire v. Lord George Cavendish. (e) (a) 2 Vern. 581. (b) 10 Ves. 597. (c) Lit. s. 667. Co. Lit. ibid. (d) Corp. 597 (e) 4 T.R. 741. notis. 1820. HALFORD ข. DILLON. As 1820. CROMACK stated, consulted professionally; and is not this a consulting on professional business? One is staggered at first on being told that there are decided cases which HEATHCOTE. Seem at variance with first principles the most clearly established; but the cases cited do not at all bear out the proposition contended for, and I know of no such distinction as that arising from the attorney being employed or not employed in the cause. To confine ourselves to the present case: here is a client who goes to give instructions touching a deed, and the communication must be deemed confidential, as between attorney and client, though the attorney happens to refuse the employment. I have no manner of doubt on the subject; and it might be of most mischievous consequence if, by granting a rule, we should be supposed to have cast any doubt on it. BURROUGH J. It would be most mischievous if it were once doubted whether or no a communication such as this were confidential as between attorney and client. RICHARDSON J. Suppose the case of an attorney consulted on the title to an estate, where there was a defect in the title, can it be contended that he would ever be at liberty to divulge the flaw? I never heard of the rule being confined to attornies employed in a cause. I am of opinion, that the communication in this case was of a nature not to be divulged by the attorney to whom it was made. Rule refused. 1820. ROBERT HINDE, Demandant, JOHN HINDE, Tenant, RICHARD BLAND, Vouchee. April 26. ONSLOW Serjt. moved to pass a recovery under the The Court alfollowing circumstances. lowed a re where the certificate of the notary (that covery to pass, the party who made the affidavit of the caption and ment of the warrant of attorney was sworn in his fore the deputy fiscal at Cape Town,) presence be omitted the day and month in the body of the certificate, but stated it The warrant of attorney was taken and acknowledged at Cape Town, Cape of Good Hope, before two commissioners. The usual affidavit of caption and acknowledgment was sworn before the deputy fiscal at Cape Town, by G. C., one of the commissioners, on the 31st of July, 1819; endorsed on the affidavit was a certificate of a acknowledg notary public dwelling in Cape Town, that the commissioner who had made the affidavit of the caption and acknowledgment, was sworn in his (the notary's) presence to the truth of the same affidavit, before P. B. B., on the day of , 1819; and he further certified, that the said P. B. B. was deputy fiscal, and as such, usually administered oaths, and had power to administer such oath, and that the name subscribed to the said affidavit, and also the name of P. B. B. subscribed to the jurat, were of their respective hands-writing. To the end of this certificate, the notary public making it had put the date of the 31st of July 1819, his name and description, and also, as was supposed, (for the wax was gone,) his notarial seal. The only question was, whether the recovery should pass, there being a blank in the body of the certificate for the day and month when G. C. was sworn to the truth of the affidavit of caption and acknowledgment. The learned Serjeant prayed that the re- certificate. covery might be allowed to pass, notwithstanding this blank; and urged, that the date of the certificate (31st July,) being the same as that of the jurat of the affidavit of caption, there was sufficient evidence that the certifi correctly at the end, where the notary witness ed the instru ment; the date of the jurat of the affidavit being the same as that at the bottom of the 1820. cate was a certificate of the oath being taken on the same 31st of July, and that it could not be of a subsequent day. Rule granted for the recovery to pass. April 27. ant in an action on a bail bond (given in an action of debt against himself) becoming bankrupt between plea and DINSDALE, Assignee of the Sheriff of MIDDLE- The Defend- ON the 3d of June, 1819, the Defendant was sued on a bail-bond given by him in an action for debt against himself. On the 17th of June he pleaded to the action on the bail-bond; on the 4th of November he became a bankrupt, and a commission issued against him in the course of that month. The action on the bailbond came on to be tried at the sittings in Hilary term, 1820, when a verdict was found for the Plaintiff. Judgment was entered up, and the Defendant taken in execution for damages and costs on the 29th of March, 1820; on that day the Defendant's certificate under the commissioner of bankrupt was allowed by the Chancellor, having been signed by the creditors on the 6th of February, in the year last mentioned. When the Defendant was taken in execution he paid the Plaintiff's attorney 517. towards the damages and costs. verdict in the action on the bail bond, and obtaining his certificate after judgment, is discharged from the damages and costs. Pell Serjt., having obtained a rule nisi to have this sum, paid under the writ of ca. sa., restored to the Defendant or his attorney, Taddy Serjt. now shewed cause against the rule. The question is, whether a Defendant in an action on a bail-bond, becoming bankrupt between plea and verdict, and |