lect the testator's intention from the paper alone, or from the paper in connexion with the circumstances, or from the circumstances without the paper, it is impossible to arrive at the conclusion that a trust was intended.. It has been said, that a trust was created by the delivery of the bonds. It is certainly possible that bonds may pass by delivery. I am of opinion, however, that the delivery in this case was not meant to be inconsistent with what is expressed in the document, nor to create any different interest or power. The act of delivery was merely subsidiary to the document. I am of opinion, that the testator was not a trustee, nor was Mr. John Cave a trustee of this property. I am clearly of opinion that there was not a donation inter vivos.

I had some doubt, however, whether it might not be construed to amount to a donatio mortis causá. For that purpose, however, I must be satisfied that there was intended to be a complete delivery, under the circumstances required by the law for that purpose. A mere delivery, and that to an agent, and the agent of the testator, would amount to nothing. There must be a delivery to the legatee, or some person for the legatee, and the delivery must be coupled with an implied trust of delivery back, if required by the testator, in case he should recover. I am of opinion, however, the evidence fails to establish such a case. As the evidence stands, the custody of Mr. John Cave, on this occasion, cannot be considered other than, or different from, his custody on other occasions. It must be declared that the Dutch bonds form part of the personal estate of the testator.

where an order has been obtained ex parte under the 28th Order of May 1845 (1), extending the time for service of a copy of the bill, it is, or is not, necessary to serve on the defendant, together with the copy of the bill, a copy also of the order extending the time.

The VICE CHANCELLOR, after having mentioned the case to the other equity Judges, said they had come to the decision that it was not necessary to serve the defendant with a copy of such order. They were unwilling to impose any duty under the New Orders which was not expressly directed by the terms of those Orders.

Mr. Cooke applied for an order, under the first article of the 33rd of the Orders of the 8th of May 1845 (2), for leave to serve both the husband and wife with subpoena

to appear and answer; and

The MASTER OF THE ROLLS, after observing that, by granting the application, he should only place the defendant Dayrell in the same situation as any other defendant, who might be within the jurisdiction of the (1) Ord. Can. 294; 14 Law J. Rep. (N.s.) Chanc. (2) Ibid. 297; 14 Law J. Rep. (N.s.) Chanc. 288.

287.

Bill of Review-Materiality of Evidence. Upon petition for leave to file a bill of review, it being held that the new matter brought forward was such as, if unanswered, would entitle the plaintiff to a decree, or would raise a question of so much nicety and delicacy as to be the fit subject of the judgment on the case; the petition was granted.

This was a petition by the plaintiff in the cause, and it stated that the plaintiff had, by his bill, claimed to be entitled to a certain estate, called the Hungate estate, as being descended from Thomas Hungate, of Haverhill, who was the second son of William Hungate and Ann Oliver. He had, in

the cause, proved a copy of the register of baptisms of the said T. Hungate, and of his brother Robert, and his sister Ann, wherein they were described as the sons of W. Hungate, also certain declarations of the late Sir Thomas Gascoigne, who had married Mary Hungate, the last descendant of the Hungate family, made during the absence at sea of the petitioner, and that the heir of the Hungate family was abroad. The petitioner further stated, that he had been unable to produce any direct evidence by marriage certificate or otherwise of the marriage of W. Hungate and A. Oliver, nor any evidence to rebut the allegations of the defendants, that the W. Hungate, who married A. Oliver, and was the father of the said T. Hungate, R. Hungate, and A. Hungate, died in 1677, and could not therefore be the same W. Hungate who was stated, by the plaintiff, to have been born in 1643, and to have been alive in 1695.

Sir T. Hungate died in 1810, having, by his will, devised his estates to R. O. Gascoigne for life, with remainder to his sons in

tail, remainder to his daughters in tail, the parties now in possession of the estate, and the present defendants, who deduced their title from a different W. Hungate.

The bill came on for hearing before the Vice Chancellor of England, on the 28th of February 1834, when a decree was made that the bill should be dismissed, with costs.

The petition stated, that since the cause was heard the petitioner had discovered new matter, which he could not use at the hearing, and which was material as evidence in support of his case, and would entitle him to a decree in the suit; first, that it had been discovered by the record of a fine, levied in 1696, that W. Hungate and Ann his wife, and other persons, were deforciants of certain property in New Matton, in which parish Thomas, the son of W. Hungate, and his brother and sister were baptized; that he had also discovered records of two other fines, in which W. Hungate and Ann his wife were deforciants of certain property at North Dalton; that the dates of these fines tended to disprove the allegation of the defendants, that W. Hungate, who married A. Oliver, was the W. Hungate who died in the year 1677; that the petitioner had since discovered that Sir T. Gascoigne had stated publicly that the Hungate estate was held by him in trust, and that there was an entail upon it, and that it belonged to one of the Hungates, who was abroad. Also, that he had since discovered the register of baptism of Ann, the daughter of John Oliver, at Pocklington, on the 7th of June 1653. And he had also discovered an inscription on a tombstone at Louvain, to the memory of W. Hungate, an English colonel, who was stated to have died on the 25th of October 1710, in the 57th year of his age, thereby confirming the pedigree produced by the petitioner, that the said W. Hungate was born in 1643.

The petitioner prayed that he might be at liberty to file a bill of review, or a bill in the nature thereof, against the said defendants, Isabella Gascoigne and Elizabeth Gascoigne, to reverse the said decree of the 28th of February 1834.

Mr. Bethell and Mr. Prior, in support of the petition, said the only issue raised by the bill was, whether the W. Hungate,

under whom the plaintiff claimed, was the same W. Hungate in whom the estate was originally vested. All that could be necessary for the petitioner now to shew would be, that he had discovered new matter material to that issue, and that such new matter could not have been previously introduced into the bill. It would not be necessary to re-hear the whole of the evidence, but merely to shew that new matter had been discovered. The petitioner had now discovered new evidence, proving that his ancestor was born, as he stated, in 1643, and died in 1710, contrary to the allegation of the defendants.

Mr. J. Parker and Mr. Piggott, contrà, contended, that the Court must hear all the evidence to ascertain the materiality of the fresh matter accompanied with the old matter; and it was not enough for the petitioner to shew that the evidence he now had was new, and could not have been ascer-. tained before. In this case, the fresh matter was in no way material, and would not alter the decision of the Court.

Mitford on Pleading, p. 84, 4th edit.
Ord v. Noel, 6 Mad. 130.

The VICE CHANCELLOR.-It appears to me that there has really been no judicial decision upon the merits of the case, although, in point of form, it has been decided. I think, when it is considered that the plaintiff's title depends on a mere matter of fact, which I might have reason to think has never been brought before the Court, it would be extremely harsh and unjust to say that the plaintiff should not have his case fairly and fully heard. Lord Redesdale states the case to be, that if the Court is satisfied that the new matter is relevant and material, and such as might have occasioned a different determination, the Court will permit a bill of review to be filed. But it seems to me that the language of Sir J. Leach, in Ord v. Noel, more accurately represents the rule of the Court, viz. "The new matter must be such as, if unanswered, would entitle the plaintiff to a decree, or would raise a question of so much nicety and delicacy, as to be the fit subject of the judgment on the case;" for it seems a sort of inconsistency to say that the Court would determine what should be the result of a

Irregularity-Order of Reference-Service-Master-16th Order of May 1845.

After service of an order referring exceptions to the Master in rotation for insufficiency, it was discovered that the exceptions ought to have been referred to the Master to whom the cause has been referred, and that the word "amended" had been omitted in the order, upon which the plaintiff's solicitor (after the lapse of the fourteen days allowed for referring exceptions for insufficiency,) altered the order, by procuring the word "amended" to be added thereto, and the name of one Master to be inserted in the stead of another :-Held, that the order of reference was irregular, and must be discharged.

The bill was filed on the 28th of June 1844, and the answer on the 7th of October 1844; the bill was amended on the 5th of March 1845, by adding new defendants; and, on the 20th of June 1845, the defendants to the original bill put in their answer to the amended bill; and the new defendants put in their answer on the following day. On the 6th of November 1845 the plaintiffs filed exceptions for insufficiency to both answers. The order referring the exceptions for insufficiency, was dated the 18th of November 1845; and the fourteen days limited by the 26th article of the sixteenth Order of May 1845 (1) expired on the 20th of November 1845. In pursuance of a warrant obtained by the plaintiff on the 22nd, the parties attended Master Senior, who was the Master in rotation, on the

(1) Ord. Can. 285; 14 Law J. Rep. (N.s.) Chanc. 285.

25th of that month, when the defendants' solicitor objected to the Master proceeding under the order, inasmuch as a reference in the cause of prior date had been made to Master Brougham. Master Senior refused to act under the order. Afterwards, and on the same day, an order of reference was served on the defendants' solicitors, bearing date the 18th of November 1845, though in fact obtained on behalf of the plaintiff, on the 25th of November (being more than fourteen days after the exceptions had been filed,) the word "amended," immediately preceding the word "bill," having been added thereto, on the same day, (the 25th of November); that order, after the same had been altered, by adding the word "amended," and the name of Master Brougham substituted for Master Senior, was not signed by the sitting Master, nor produced to him for his signature; counsel for the defendants had attended before Master Senior, but declined arguing the exceptions, and insisted on the objections arising from the irregularity of the plaintiff's proceedings. The plaintiff then took the order into the office of Master Brougham, the Master to whom the cause stood referred, and took out a warrant to proceed on the plaintiff's exceptions thereunder; but further proceedings were suspended, in order to give the defendants an opportunity to move to discharge the order dated the 18th of November, for irregularity.

Mr. Toller, in support of an application to that effect, contended that both the orders, dated the 18th of November, were erroneous, inasmuch as the alteration of the original order made it, in effect and substance, a new order; and if it was a new order, then it was not served on the defendants' solicitor until after the lapse of the fourteen days limited by the 26th article of the 16th of the Orders of May 1845; that if the order in question should not be considered a new order, still it was not competent for the plaintiff to procure an alteration of the order in any respect, but the duty of the plaintiff to see that the order made by the officer of the court, in the first instance, was the correct one; that the order was also irregular in making the reference to the Master in rotation. The cases of Taylor v.

Harrison(1), and Attorney General v. Clack (2), were cited in support of the motion.

Mr. Bilton, contrà, contended that there had been a waiver of the irregularity by the attendance on behalf of the defendants before the Master; that the reference to the Master in rotation was nothing more than a clerical mistake, and unimportant, and that the omission of the word " amended," in the order of reference, was the accidental mistake of the officer; the prayer of the petition asking for an order for the Master to look into the "amended bill."-Tuck v. Rayment (3) was cited.

Mr. Toller, in reply.

The MASTER OF THE ROLLS.-After an order has been given out, if I were applied to, I might direct a clerical error to be corrected, and so, where the careless marking of the name of the Master had occurred, which might throw great uncertainty on the proceedings in the suit; but that is not the matter for present consideration. If the correction in this case had occurred previously to the first service of the order, I should not have been inclined to disturb it; but if the alteration be effected after service of the order, the case becomes a very different one. If the party had been informed of the objection to the order, and had gone on, it might have been necessary to consider whether the word "amended" was necessary to be inserted, for the purpose of rendering the order a valid one; but here the party alters the order, and then serves it in that shape, after the time allowed for the service of the order had expired, and has thus determined the necessity of the insertion of the word "amended" against himself. The order being, therefore, irregular, must be discharged with costs; but this does not prevent the party applying, on the merits, to remedy the irregularity. As to costs, I have no jurisdiction (were I inclined) to order the costs of the present motion to be. costs in the cause, the suit belonging to another branch of the court.

(1) 1 Myl. & Cr. 274. (2) Ibid. 367.

(3) Ante, p. 103.

A motion made after the New Orders of 1845 came into operation, is to be governed by those Orders, although the notice of motion was given, or the facts to which it related occurred while the former Orders were in force: but, in deciding upon such a motion, the Court will take into consideration whether the proceedings of the party would have been satisfactory according to the former practice.

All special applications for leave to amend must, for the future, be made, in the first instance, to the Master in rotation, and not to the Court, except by way of appeal.

The affidavits, in support of a special application for leave to amend, after the expiration of the four weeks mentioned in the 68th Order of May 1845, must strictly comply with the requisition of that Order; and the affidavit of the solicitor himself will not be dispensed with. But where the defendants are abroad, or are a corporate body, and an affidavit cannot be obtained from them, the affidavit of their solicitor will be sufficient.

This suit was instituted by the corporation of the city of London, as governors of Christ's Hospital. The defendants were the trustees of certain trust property, and the Attorney General. The trustees put in their answer in April 1843, and the Attorney General on the 1st of the following month of May. The bill was amended in December 1843, and the corporation of Reading were made defendants; and they and also the trustees put in their respective answers to the amended bill on the 20th of June 1844. The corporation admitted, by their answer, that they had in their possession nearly 22,000 documents relating to the matters in dispute. In February 1845 the plaintiffs obtained an order to inspect these documents, and Mr. Peacock, a clerk of the plaintiffs' solicitor (Mr. Maberley) went down to Reading at the end of March, and examined the documents on the 28th, 29th, and 31st of that month. On the 12th of May he resumed the examination, and continued it for six days. On the 26th of NEW SERIES, XV.-CHANC.

August he resumed it, and finished it on the 5th of September.

On the 31st of October 1845, notice was given of a motion for the 13th of November, being the second seal in Michaelmas term, for leave to amend the bill. In support of the motion, affidavits were filed by Mr. Maberley, the solicitor for the plaintiffs, and by Mr. Peacock. The latter stated that the documents were kept in boxes, without any arrangement as to dates, or the subjects to which they referred, and that the examination of them necessarily occupied a considerable time; and that he was unable to proceed with the examination with greater expedition from the pressure of other important business, which it was necessary for him to attend to. The affidavits contained a statement as to the amendments, to the effect required by the 13th Order of 1828 (1).

The VICE CHANCELLOR granted the application on the 4th of December 1845; and the defendants now moved to discharge the order of the Vice Chancellor.

Mr. Bethell and Mr. Selwyn, in support of the motion.-The order of the Vice Chancellor is open to three objections. First, under the Orders of May 1845, an application for leave to amend ought to be made in the first instance to the Master; and

(1) The 13th Order of 1828, as amended, directed that "No further leave to amend should be granted after an answer and before replication, unless the Court should be satisfied by affidavit that the draft of the intended amendments had been settled, approved and signed by counsel, and that such amendments were not intended to be made for the purpose of delay or vexation, but because the same were considered to be material to the case of the plaintiff." Ord. Can. 8; 1 Law J. Rep. (N.s.) Chanc. 1.

The 67th and 68th Orders of May 1845 are as follows:

Order 67. "A special order for leave to amend a bill is not to be granted without affidavit, to the effect, first, that the draft of the proposed amendments has been settled, approved, and signed by counsel; and second, that such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff."

Order 68. "After the plaintiff has filed or undertaken to file a replication, or after the expiration of four weeks from the time when the answer or last answer is deemed sufficient, a special order for leave to amend a bill is not to be granted without further affidavit, shewing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into such bill." Ord. Can. 308; 14 Law J. Rep. (N.s.) Chanc. 290.

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