had not been directed particularly to the question now disposed of; for the whole report of the case in Curteis goes on the question of the factum, and not on the alterations. Whether that last point was argued at all, does not appear. The report says, that, after deciding on the factum, the Court directed evidence of the nature of the alterations, and thereon decided for probate of the Will so altered.

1844-6.

COOPER

V.

BOCKETT,

ON PETITION FROM THE SUPREME COURT
OF JAMAICA.

IN RE GEORGE BARNETT,*

THIS was a Petition, under the 7th & 8th Vict., c. 69, for leave to Appeal direct to Her Majesty in Council, from a Judgment of the Court of Assize, in the Island of Jamaica, in an action of Assumpsit, without bringing a Writ of Error, in the Court of Errors, in the Island, the intermediate Court of Appeal.

The Petition alleged, that in the October term of the Supreme Court of Jamaica, 1842, James Steadman and John Henry Kock, gentlemen, administrators of one

* Present: Lord Langdale, Lord Campbell, Mr. Baron Parke, the Right Hon. Dr. Lushington, and the Right Hon. T. Pemberton Leigh.

Such appeal is not of course, but requires special grounds to be shown, to warrant the application.

1844.

IN RE BARNETT,

Patrick Newland, late of Glasgow, a merchant, filed a certain action of trespass on the case in assumpsit, against the Petitioner, George Barnett, and William Girod, attorneys-at-law, and surviving co-partners of John Lynch, deceased, for the recovery of monies alleged to have been received on the 30th of June 1837. That the Petitioner, and William Girod, having severed in their pleas to the said declaration, the cause came on for trial at the Assize Court at Kingston, in November, before Sir Joshua Rowe, the Chief Justice, and a jury. That Girod did not appear, but allowed Judgment to go by default. That, at the trial it appeared, among other things, that the administration had not been granted unto the Plaintiffs, until many years after the death of Lynch, and that there was no evidence of an account stated, or acknowledgment made to the Plaintiffs, as administrators after his death. That it further appeared, that the money being in part payment of a Judgment, at the suit of Patrick Newland, had been received by the said William Girod, in his character of attorney of and for the said Patrick Newland, or his estate, while the said John Lynch, and the Petitioner, were not included therein, and had never been accounted for by him, the said William Girod, to the Petitioner, and the said John Lynch, and that they had no knowledge of it. That it was contended, by the said Petitioner, at the trial, among other things, that the said action could not be maintained by the Plaintiffs, as administrators, there never having been any contract or privity, between them and the Petitioner, and the said John Lynch during his lifetime; that there was no evidence to sustain any of the counts in the declaration for monies had and received: and it was further contended,

that William Girod had no authority from his copartners to receive the money on account of the said co-partnership; and that it must be taken to have been received by him as the attorney of the deceased Newland, in which character he was alone entitled to receive it; and that the Chief Justice ought to have directed the Jury accordingly. That the Chief Justice refused to nonsuit the Plaintiffs, on the first point, or to direct the jury, as aforesaid, on the second point, but left the question to the jury, whether the said William Girod received the money as one of the firm of Lynch, Barnett, & Girod, and as attorneys-at-law of the parties entitled to the money, or as the procurating attorney; and directed the jury, that if they should be of opinion that he received it in the former character, to find their verdict for the Plaintiffs, and if in the latter, to find a verdict for the Defendant, the Petitioner. That the jury gave their verdict for the Plaintiffs, with £1,619. 12s. damages. That the counsel for the Petitioner excepted to the charge of the Chief Justice, and prepared and tendered a Bill of Exceptions to the ruling of the Chief Justice to the jury. That the said Judge had not sealed the said Bill of Exceptions, up to the date when the Petitioner left the Island; and that they were still unsealed, in consequence of some difference of opinion between the counsel. That the expense and heavy security required by the rules of the Court of Error in Jamaica, almost amounted to a prohibition against an Appeal. That the non-sealing of the Bill of Exceptions, deprived him from obtaining his Writ of Error; and that if he had done so before the said Bill of Exceptions had been sealed, it would have been a waiver of the said Bill of Exceptions. That an action on the

1844.

IN RE BARNETT.

1844.

IN RE BARNETT.

Jamaica Judgment, had been instituted in the Court of Exchequer of Pleas in England, against the Petitioner, and Judgment entered up thereon, subject to an order of the Court, on the application of the Petitioner, staying execution until leave of the Court, or of the Judge thereof, should be granted.

The Petitioner then set forth the 1st & 9th sections of the 7th & 8th Vict., c. 69 (a), and prayed that the said Bill of Exceptions, when sealed, might be returned to the Judicial Committee of the Privy Council, to be by them read and disposed of, without an intermediate Appeal, to the said Court of Appeal in Jamaica, and to make such further order thereupon.

Mr. Dysart for the Petitioner.

This is the first application under the new Act, 7th & 8th Vict., c. 69, for leave to Appeal directly from the inferior Court in Jamaica, and as there has been no Order in Council issued to carry the provisions of this Act into effect, it is necessary that there be a Special Order. [Lord Langdale: If you come here for a Special Order you must show special grounds; you must state sufficient to induce the Court to let you have such indulgence. It is not an order of course.] The Petition sets forth sufficient grounds. [Baron Parke: You ask for leave to appeal, but do not undertake to give security.] The Act of Parliament does not provide for that, but we are willing to abide any order your Lordships may think right to make.

Mr. Willes, contrà.

The Court ought not to receive this Appeal. If the application be admitted without special grounds, it (a) Appendix, p. xix.

will operate as a general order, to abolish the Court of Error in Jamaica. Nothing has been shown in the Petition to warrant such a course. There is a Court of Error in the Island, which can take cognizance of the matter. But if this Court is inclined to grant such leave, it will impose such terms upon the Petitioner as will put the party in the same position as he would be in the Island. The Jamaica Statute, 17 Geo. III., c. 16., does not go beyond the Statutes in force in this country, for regulating security to be given on Appeal in Writs of Error. Security ought, also, to be given for costs.

Lord LANGDALE:

Their Lordships are of opinion, that the prayer of the Petitioner ought to be granted; but it must be upon terms. He must give security for the debt, and for £300 for costs. If he gives security for the debt in the Court below, he is not to give such security here. The order is not to affect the right of the parties in the meantime.

By an Order in Council, it was ordered that leave ought to be granted to the said George Barnett, to enter and prosecute his said Appeal, or Bill of Exceptions, to the said charge and opinion of the said Chief Justice of the Supreme Court of Judicature of the Island of Jamaica, before Her Majesty in Council, without the intermediate Appeal to the Court of Appeal in Jamaica, and in pursuance of the Act of the 7th & 8th of Her Majesty, cap. 69, upon lodging in the Council-office a certificate of recognizance to Her Majesty, in a penalty of £1,919. 12s. (being the amount of the verdict of £1,619. 12s., given for Plaintiffs in

1844.

IN RE BARNETT.