with a person named Drake, a pawnbroker, at Manchester, in the month of September, 1828, and that, in July, 1829, he delivered the duplicate to the defendant to take them out of pledge, which the defendant accordingly did on paying the pawnbroker 117. 17s. for principal and interest.

It further appeared, that, on the 9th of November, 1832, the plaintiff sent a person named Wycherly to the defendant to demand the articles. This witness said, "I demanded the articles from the defendant, who said that he had not got them, and that he would not tell me where they were. I said, of course Mr. Jones would allow him, in account, any sum he might have paid to redeem the goods.

Justice, for the defendant.-I submit that the plaintiff must be nonsuited. The defendant was entitled to hold the goods till he was repaid the sum that he had advanced to redeem them. The plaintiff's witness says that the plaintiff would allow the sum in account. That is not suf ficient. The amount ought to have been tendered.

Ludlow, Serjt., for the plaintiff.-No tender was necessary in this case. The defendant does not put it on the ground of lien, and refuse to deliver the goods upon that ground; but he says that he has put it out of his own power to deliver them up, and refuses to tell where they are (a).

Justice. The plaintiff was in no condition to ask the return of the goods till he made a tender of the money; and it therefore signified nothing where the goods were.

Mr. Justice TAUNTON.-I certainly shall not nonsuit.

(a) See the case of Ayling v. Williams, ante, p. 399.

1833.

JONES

v.

CLIFF.

Mr. Justice, if you have any evidence to offer, I will hear it.

Justice, for the defendant, opened that the pawnbroker's duplicate was put into the defendant's hands, that he might repay himself a balance that the plaintiff owed him; and, to substantiate this defence, a letter from the plaintiff to the defendant was put in.

Mr. Justice TAUNTON left it to the jury to say whether there was any agreement between the parties to the effect suggested on the part of the defendant.

Verdict for the plaintiff.

Ludlow, Serjt., and Whateley, for the plaintiff.

Justice, for the defendant.

[Attornies-J. Burns, and Burgess.]

April 18th.

COURT OF EXCHEQUER.
(In Bank.)

BEFORE LORD LYNDHURST, C. B., MR. BARON BAYLEY, AND

MR. BARON VAUGHAN.

Justice moved for a rule to shew cause why there should not be a new trial, on the ground that the defendant had a right to hold the goods, as there had been no tender of the money advanced; and also on the ground that the verdict was against evidence.

Lord LYNDHURST, C. B.-As the defendant said that he had given over the possession of the goods, and would not tell to whom, he could not insist on a formal tender. A party can only be obliged to make a tender

when, by tendering, he would get possession of the goods.

BAYLEY, B., and VAUGHAN, B., concurred.

1833.

JONES บ. CLIFF.

Rule refused.

DOE on the demise of ALLen v. Blakeway.

A. was tenant power of pointment by

for life, with a ap

will, attested

by three credible witnesses. By will, attested by

three witnesses,

EJECTMENT. The lessor of the plaintiff claimed as the heir at law of William Allen, deceased. It appeared that Richard Park, who was tenant for life of the premises in question, with a general power of appointment by will attested by three credible witnesses, by his will attested by three witnesses devised to Martha Allen for her life, he appointed and after her death to William Allen in fee. Martha the lands to B. for life, and Allen was one of the attesting witnesses to the will. On after her death the death of the testator, in 1805, the husband of Martha to C. in fee. B. Allen entered and retained possession of the premises till his death in the year 1831. Martha Allen died in the year 1828, and William Allen in the year 1832, he having

was one of the

witnesses to the appointment to fore void.

will, and the

her was there

the death of the testator, the

attained his full age of 21 years in the year 1815. The present ejectment was commenced in Hilary Term, 1833. husband of B.

Maule, for the defendant, submitted that, as the devise to Martha Allen was void by the stat 25 Geo. 2, c. 6, s.1 (a),

entered, and held the land till his death,

which was three years after the

death of B.:Held, that the

statute of limitations did not begin to run against C. till the death of B.

(a) By which it is enacted, "That if any person shall attest the execution of any will or codicil which shall be made after the 24th day of June, in the year of our Lord 1752, to whom any beneficial devise, legacy, estate, interest, gift, or appointment of or affecting any real or personal

estate, other than and except
charges on lands, tenements, or
hereditaments for payment of any
debt or debts, shall be thereby
given or made, such devise, lega-
cy, estate, interest, gift, or ap-
pointment, shall, so far only as
concerns such person attesting
the execution of such will or co-

1833.

DOE

d.

ALLEN

v.

BLAKEWAY.

the title of William Allen accrued immediately on the death of the testator; and that, as ten years had elapsed since he came of age, and before the present ejectment was brought, his entry was barred by the statute of limitations, 21 Jac. 1, c. 16.

Mr. Justice TAUNTON.-I am of opinion that the right of William Allen must be taken for this purpose not to have accrued till the death of Martha Allen, notwithstanding the life estate was bad. William Allen's estate is, by the terms of the will, to commence after the death of Martha Allen. It is analogous to the case of a remainder-man, where there has been a forfeiture of the life estate; he is not bound to insist on the forfeiture, but may wait the regular expiration of the particular estate; and the statute of limitations does not begin to run till that time. The lessor of the plaintiff is entitled to recover.

Verdict for the plaintiff.

Talfourd, Serjt., and R. V. Richards, for the lessor of the plaintiff. ›

Maule and Whateley, for the defendant.

[Attornies-How, and Watson.]

dicil, or any person claiming un-
der him, be utterly null and void;
and such person shall be admitted
as a witness to the execution of
such will or codicil, within the in-

tent of the said act, notwithstanding such devise, legacy, estate, interest, gift, or appointment mentioned in such will or codicil."

REX v. WILLIAM HANDLEY and JOHN HANDLEY.

THE prisoners were indicted under the stat. 9 Geo. 4, c. 31, ss. 11 & 12, for shooting at John Bannock, the gamekeeper of Mr. Eyston. They were also indicted, under the stat. 9 Geo. 4, c. 69, s. 9, for night poaching on the land of Mr. Eyston.

Godson, for the prisoners, submitted that, as the two indictments were in reality founded on the same identical transaction, the prosecutor ought to be put to elect which he would proceed upon, and abandon the other.

I

Mr. Justice J. PARKE.-These are quite distinct offences, and the one cannot by possibility merge in the other. think, therefore, that the prosecutor is not bound to abandon either.

The indictment for the shooting was tried, and the prisoner Willam Handley was convicted, and the prisoner John Handley acquitted (a).

Bather and Corbett, for the prosecution.

Godson, for the prisoners.

[Attornies-Duke & Salt, and Asterley.]

(a) The prisoner John Handley was discharged without being tried on the indictment for night poaching; the learned Judge ob

serving, that, by the conviction of
the other prisoner, the ends of
justice would be attained.