Ex.]

WARDLE v. BROCKLEHURST.

[Ex. CH.

CHAMBER.

EXCHEQUER

Reported by C. J. B. HERTSLET, Esq., Barrister-at-Law.

Wednesday, Feb. 8.

APPEAL FROM THE QUEEN'S BENCH.

(Before WILLIAMS, J., MARTIN and BRAMWELL, BB.,
WILLES, J., CHANNELL, B., BYLES and KEATING,
JJ.)
WARDLE V. BROCKLEHURST.

year. He says, indeed, that he only loses them by his customers not returning them. Hence it was argued, very forcibly, how could he say they were stolen from him under those circumstances? He does not say they were stolen from him. It was also urged, if he cannot say they were stolen from him, how could he say they were stolen from anybody else? To which the answer is, he does not say they were stolen, but believes they were. The question is, whether it is a wholly unreasonable belief for a man who has a thousand sacks not returned to him from his customers to entertain-Right to water-Diversion-Conveyance of lands— whether it is unreasonable for him to think, when he ⚫ sees a quantity of sacks, some of which are new-not many, perhaps-cut up into waste, and being made away with for the purpose of being turned into paper, that they are his sacks. The new ones are of importance, undoubtedly, in this matter, because, if they had been old ones, and unfit for use, there would have been no ground for thinking that any of those had been stolen; but some of them being new, it seems impossible to say that there was an absence of reasonable and probable cause. All the rest of the deposition is truenamely, that they were on the wharf, and that they were in the custody of the plaintiff. For these reasons, therefore, it appears to me that the plaintiff has not shown an absence of reasonable and probable cause for the information of the defendant, and that being so, the latter is entitled to make this rule absolute-the effect of which is, as I understand, that the verdict stands for 14.

CHANNELL, B.-I am entirely of the same opinion. Upon the point of malice I shall say nothing; first, because I understand from my brother Bramwell, after consultation with my brother Willes, that it was not reserved, and in the next place it is not necessary in the view I take of this case. I certainly was under the impression at first, during a part of the argument (and which appears to have prevailed with my brother Willes), that there was a distinction between this warrant, so far as it authorised them to search the premises where the sacks were, and so far as it authorised the apprehension of the party named in it. But it appears to me, upon looking into the authorities in Burn's Justice, and especially looking into Hale's Pleas of the Crown, that the magistrate was not only at liberty to issue, but would issue as of course, a warrant with this double aspect-if I may use such an expression. I do not understand it to be an application for a warrant to arrest a person on a charge of felony, and be brought before a magistrate to be dealt with according to law. A warrant in that form is warranted by the authorities. It seems to me that the question is, was there a want of reasonable and probable cause for the information which the defendant laid before the magistrate? Now I agree that all the circumstances are entirely explained by what afterwards occurred, and that the plaintiff is involved in no imputation whatever; but we are to look at what determined and justified the impression on the mind of the defendant the moment before he laid the information. He sees a tarpaulin; the use of it is well explained, but still he sees enough to be satisfied that under that tarpaulin would be found some of his property. He found one or two sacks, no doubt his property, bearing his trade-mark upon them; and in one sack, if not two, he finds strips of sacks, evidently strips of new sacks; and with marks upon them sufficient to enable him to distinguish those as his property.

I think that there was no want of reasonable and probable cause such as would entitle the plaintiff to maintain the action upon the second count, either for the 47. in respect of the search-warrant, or for the 15. in respect of the apprehension that took place. The result, therefore, is, as my brother Bramwell has said, that the verdict will stand for the sum of 17. Rule absolute.

Priority-General words in conveyance-Licence. In an action for the diversion of water from a certain mansion-house and land of the plaintiff, it appeared that prior to 1834 the water flowed naturally into the farm A., which farm, together with "all and singular houses, &c., ways, water, watercourses, liberties, privileges, easements, profits, commodities, hereditaments, and appurtenants whatever to the said mansion-house, hereditaments and premises belonging or in anywise appertaining, or with the same demised. held, used, occupied, or enjoyed or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or of any part thereof," was conveyed to the plaintiff in fee by deed dated 25th March 1857. In 1834 Sir E. S. was tenant for life of farm A., and had a limited interest in farm B. The defendant then was and still is owner in fee of land adjoining and lying between the flow of water and farm B., and in that year an arrangement was made between Sir E. S. and defendant, in pursuance of which a culvert was constructed from the brook through defendant's land to farm B., and from thence into some other land of the defendant's to certain dye works belonging to him. This was the diversion complained of. In 1851 Sir E. S. died, and by deed dated 1st Sept. 1856, the same parties being at that time seised in fee of both farms A. and B., they conveyed farm B. to the defendant in fee, "and all and singular houses, &c., waters, watercourses, liberties, privileges, easements, advantages, rights, members and appurtenants whatsoever, to the said messuage and tenement, lands, hereditaments and premises hereinbefore described and granted, belonging or in anywise appertaining, or to or with the same, or any part thereof, held, used, occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or of any part thereof:

Held (affirming the decision of the court below), that the farm B. was conveyed to the defendant in the state in which it was at the date of the conveyance to him (1st Sept. 1856), including the culvert and all the watercourses, &c., which belonged and appertained to the premises, and which were used or enjoyed therewith: and that therefore the subsequent conveyance of farm A. of the 25th March 1857 to the plaintiff in no way interfered with the defendant's rights, he being entitled to the full flow of the water as it existed at the time of the date of the conveyance to him.

This was an appeal from the decision of the Court of Q. B. upon a special case.

The declaration alleged that before and at the time of the commencement of the action, a certain mansionhouse and lands were in the possession and occupation of one Oldham as tenant to the plaintiff, the reversion then and still belonging to the plaintiff, and by reason of the premises the plaintiff was entitled to the flow of a certain stream or rivulet to and for the use of the said mansion-house and lands, and the defendant by cutting the banks of the said stream and by placing certain obstructions in and across the same, and by means a of certain culvert and otherwise, diverted the water of the said stream away from the said mansionhouse and lands, by means whereof the plaintiff was

WARDLE v. BROCKLEHURST.

Ex. CH.] injured and prejudiced in his reversionary estate in the mansion-house and lands.

[Ex. CH.

Jington estates, and in 1850 a similar arrangement took place with reference to the Hurdsfield estates, including the Red House Farm.

In April 1853 E. H. Brooksbank was tenant for life in possession of both estates, that is to say, for a legal estate of the Tytherington property, and for an equitable estate of the Hurdsfield property, his son E. Brooksbank being tenant in tail male of the same estates respectively in remainder expectant on the

On the 21st Aug. 1855 the Tytherington estates, including the Lower Beach Farm, were, by a disentailing deed, conveyed, subject to a life-estate to E. H. Brooksbank, to the use of E. Brooksbank in fee, and on the 28th Aug. 1855 the father and son surrendered, or professed to surrender, the Hurdsfield estates, including the Red House Farm, to the same uses. In the same month 1855 the father and son directed the Hurdsfield estates to be sold by auction, and the defendant purchased the Red House Farm.

The defendant pleaded (inter alia) that, before the plaintiff had any interest in the mansion-house and lands, the Rev. E. H. Brooksbank was seised for life of the same, with remainder to E. Brooksbank in fee; and thereupon, on the 1st Sep. 1856, by deed between them and certain other parties and the defendant of the fourth part, a messuage and farm, with the appurtenances, called Red House Farm, was granted, re-decease of his father. leased and conveyed unto and to the use of the defendant, his heirs and assigns for ever; and the said E. H. Brooksbank and E. Brooksbank thereby granted unto the defendant and his heirs for ever, as owners of the said messuage and lands called the Red House Farm, for themselves and their tenants and occupiers of the same messuage or farm, the right to divert the water of the said streams or rivulets, by means of certain obstructions before then placed in and across the said streams, and a certain culvert and a certain sough or By the drain, which, at the time of the making of the said in-conveyance executed 1st Sept. 1856 the father and denture, conveyed the water of the said streams or son, and other persons parties thereto, granted, barrivulets, by cuttings in the said streams or rivulets, gained, sold and confirmed to the defendant in feethrough certain other lands of the defendant into the simple the Red House Farm, comprising the message said messuage and lands, called the Red House Farm, or tenement, fields, meadows and premises therein for the proper supplying of the same with water; and described, and the deed contained in the granting part, the defendant further said that the plaintiff claimed, and following the particular description, the following and was entitled to, the said mansion-house and lands general words: "And all and singular houses, outin the first and third counts mentioned, by a conveyance houses, ways, paths, passages, waters, watercourses, from the said E. H. Brooksbank and E. Brooksbank mines, quarries, commons, common of pasture and tursubsequent to the said grant so made by the said E. H. bary, liberties, privileges, easements, advantages, emoluBrooksbank and E. Brooksbank to the defendant as ments, rights, members and appurtenances whatsoever aforesaid, and that he the defendant did afterwards, and to the said messuage and tenement, lands, hereditawhile he was the occupier of the said messuage and ments and premises hereinbefore described and granted, farm called the Red House Farm, under and by virtue released and conveyed, or intended so to be, belonging of the said grant, divert the waters of the said streams or in anywise appertaining, or to or with the same or or rivulets by means of the said obstructions, and the any part thereof held, used, occupied, or enjoyed, or said culvert, sough and drain, into the said messuage accepted, reputed, deemed, taken, or known as part, and lands of the defendant, called the Red House parcel, or member thereof, or of any part thereof." Farm, for the proper supplying of the same with water, which are the grievances in the first and third counts mentioned.

At the trial of the cause at the Chester summer assizes 1858, before Crowder, J., a verdict was found for the plaintiff subject to a special case.

In the month of Dec. 1856 the said E. H. Brooksbank and E. Brooksbank contracted with the plaintiff for the sale to him of the Lower Beach Farm, and the same was conveyed to him in fee by a deed dated the 25th March 1857. That deed contains the following general words: "Together with all and singular houses, outhouses," &c., "ways, waters, watercourses, liberties, privileges, easements, profits, commodities, hereditaments and appurtenances whatsoever to the said mansion-house, hereditaments and premises belonging or in anywise appertaining, or with the same or any of them respectively, demised, leased, held, used, occupied, or enjoyed, or accepted, reputed, deemed, taken, or known as part, parcel, or member thereof, or of any part thereof."

By indentures of settlement dated 13th and 14th July 1810, executed on the marriage of Edward Stracey, afterwards Sir Edward Stracey, with Ann Brooksbank, spinster, the Tytherington estates, including Lower Beach Farm, were conveyed to certain uses to the use of the said Edward Stracey for life, and to the use of such person or persons as the said Ann Stracey, notwithstanding her coverture, should by will appoint. In 1816 the said Lady Stracey became possessed of the Hurdsfield estates, including the Red House Farm, In the draft of the said conveyance to the plaintiff under the will of her aunt. These last estates were as prepared by his solicitors, the words "now or at any partly freehold and partly copyhold, and the Red time heretofore" were inserted before the words "deHouse Farm, though in fact freehold, was until the sale mised, leased, held, used, occupied, or enjoyed," &c.; in 1856, hereinafter mentioned, supposed to be copy- but being objected to by the solicitors of the vendors, hold. Lady Stracey died on 3rd Dec. 1832, having by were not inserted in the conveyance as executed. In her will appointed the Tytherington estates (subject to and for a long time before the month of April 1834 a life-estate to Sir Edward Stracey) to the use of E. H. there had been a great want of water (at times an entire Brooksbank for life, with remainder to his first and failure thereof) for the purposes of the Red House farm other sons in tail male. Her copyhold estates in Hurds-unsuccessful endeavours having been made by the said field she devised to Sir Edward Stracey in fee. These Sir E. Stracey and Lady Stracey to obtain a supply latter estates had been surrendered in 1816 by Sir from various sources. In the year 1832, in the lifeEdward Stracey and his wife to the uses of her will, but time of the said Lady Stracey, an arrangement was this devise as to the Red House Farm ultimately failed come to between the defendant and the said Sir E. for the reason above mentioned, viz. that it was dis- and Lady Stracey for their mutual accommodation for covered to be freehold. Upon the death of his wife in the diversion of water from the Shores Clough brook 1832, Sir Edward entered into possession of the copy-to the Red House Farm, and through the same to the holds at Hurdsfield, including the Red House Farm, defendant's property, and accordingly in the month of and continued in such possession till his death on the April 1834 the diversion complained of in the declara14th July 1851. In 1848 a deed was executed be- tion was made principally by and at the expense of the tween Sir Edward Stracey and the then existing defendant, by means of a stone culvert about sixteen or tenants in remainder for life and in tail of the Tyther-eighteen inches in diameter, and which was made larger

WARDLE v. BROCKLEHURST.

than it otherwise would have been for the purpose of | rights used with the Red House property, the defendmore convenient cleansing, and which passed from the ant, on becoming the owner of that property, could only Shores Clough brook through lands belonging to him take from the culvert so much water as was sufficient (the defendant) to the Red House Farm, then through for the purpose of supplying water through the pipes the same to and through other lands belonging to him to Red House Farm; but we think he had a right to (the defendant), and to his residence called Hurdsfield the conveyance of the culvert as it was when the deed House, and to certain dye and silk works there belong-was executed, and to the flow of the water down that ing to him. The making of the said culvert was superintended by the then agent and steward of Sir E. Stracey on his part.

Ex. CH.]

HOOPER v. HOOPER.

[Div.

now or at any time heretofore" were struck out on | occupied, or enjoyed." This watercourse was enjoyed the vendor's solicitors objecting to them. For mary with Red House Farm, and the words used are suffiyears the water through the culvert had been enjoyed cient to pass it if there is no objection in point of law by the occupier of Red House Farm; there was no limit to a right of this sort passing under those circumto such enjoyment, and he consumed as much as stances. Now those circumstances present these diffipassed through the pipe, and he might have culties; the watercourse was not direct, but had to used it for any purpose connected with the farm. pass over intermediate land belonging to the defen[WILLIAMS, J.-It is sufficient for you that he had a dant, before it came to Red House Farm, and right to the pipe, and therefore a right to the culvert.] was not only dependent on the assent of the Canham v. Fisk, 2 Cr. & J. 126, decides that if owner of the Lower Beach Farm, who was a land with a flow of water on it be sold, the water passes party to the conveyance, but also to the owner of with the land, and the vendee having used the water, land between the brook and Red House Farm. Then it though for less than twenty years, gains a title to it by is said that the owner of Lower Beach Farm could not appropriation, and may maintain, an action for ob- convey anything like a right, but only something substructing it; and Lord Lyndhurst there said that when ject to the capricious interference of a third partyonce there was a defined watercourse, it was immaterial that if the intervening land had belonged to a third whether it was below or on the surface of the land. In party instead of the defendant, the effect of the grant Nicholas v. Chamberlain, 2 Cro. Jac. 121, it is laid would have been the same as if he had said, "To the down that when a man is entitled to a house, land and best of my ability I grant Red House Farm, with the conduit, and he sells the house, excepting the land, the right of diverting the water from the brook, and I conduit remains appurtenant to the house, and passes hereby disqualify myself from objecting to such diverwith it. Defendant had the earlier title and the right sion as owner of Lower Beach Farm;" and it is said, to to the water, as enjoyed at the time of the conveyance make such conveyance complete, a second conveyance to him, passed with the land. The parties conveying from the owner of the intervening land would be necesto defendant were aware of the diversion, and they were sary. But the answer is, that no such second conveyat the time seised in fee of both the Lower Beach Farm ance was necessary, as the defendant himself was at and the Red House Farm; the title therefore to the the time the owner of the intervening land. Then as Red House Farm at the time of the arrangement is to the extent of the right conveyed. The plaintiff immaterial, except for the purpose of showing the contends that, as it is a right claimed by the owner of arrangement with regard to the culvert. No cause of Red House Farm as incident to the enjoyment of the action is shown. Even if there was no legal right to farm, no further supply can be claimed than was incithe water, there was a licence granted by Lady Stracey dent to such enjoyment. It seems at first sight a strong in 1832. She was entitled to grant that licence, and proposition to say, that by buying the land as he did the the defendant was entitled under it, and the case is the defendant acquired a right to the water to any extent same as if it were between the defendant and the per- he might require for his dye works; but it seems to me sons of whom he purchased; and if that be so, the clear that by buying the farm with the easement as it vendors cannot derogate from this grant, which they then existed, the defendant acquired a right to it in the would do if the right of the defendant to the water as same state as it existed at the time of the conveyance it flowed through the culvert were exempted from the to him, and a right to insist on the continuance of the operation of the deed of the 1st Sept. existence of the tunnel if necessary and ancillary to Welsby in reply.-At the time the licence is stated the right to the enjoyment of the water. It is true that to have been given, Lady Stracey was tenant for life, when the water has passed through the Red House her husband had no estate; and at the time the diver-Farm, the defendant has a very beneficial enjoyment of aion complained of was made, Lady Stracey was dead. The words in defendant's deed are "used and enjoyed." The act was unlawful and the enjoyment wrongful.

WILLIAMS, J.—I am of opinion that the judgment of the court below ought to be affirmed. There have been a variety of decisions not exactly on this kind of right, but on analogous rights in respect of ways. The first question is confined to the right to this watercourse, and it depends entirely upon whether the words used are sufficient to pass the right to it; the second, assuming the words to be sufficient for that purpose, how far that right extends. In Barlow v. Rhodes, 1 Cr. & M. 448, Bayley, B. says, "It has been decided, over and over again, that where an easement has become extinct by unity of ownership, and the owner wishes to grant the easement with the premises to which it was formerly appurtenant, he must use language to show that he intended to create the easement de novo." On the other hand, it was held, in James v. Plant, 4 Ad. & Ell. 749, that such a right will pass as enjoyed with the land, if proper words are used to describe it, and show the intention of the grantor. Apply those principles to this case, and it seems to me clear that here a right to this watercourse passed to the defendant by the deed of the 1st Sept. 1856. The important words of the deed are "and all waters, watercouses iberties, privileges, easements, advantages, rights, members and appurtenances whatsoever to the said messuage and tenement, lands and premises hereinbefore described and granted, belonging or in anywise appertaining, or to or with the same, or any part thereof, held, used,

it, and one of a very valuable nature; but he has no more than he is entitled to. Suppose a stranger had the land below Red House Farm, the defendant would be entitled to the same rights in respect of the flow of water to it which he enjoys, that land being his own. The judgment, therefore, of the Q. B. must be affirmed. Judgment affirmed.

DIVORCE AND MATRIMONIAL
CAUSES COURT.

Reported by Dr. SWABEY, of Doctors'-commons.

Wednesday, Jan. 25.

(Before the JUDGE ORDINARY, on motion.)
HOOPER v. HOOPER.

Petition for cruelty-Record withdrawn by consent-
Motion to set cause down again for trial.
On the trial of a wife's petition for judicial separation
by reason of her husband's cruelty, an arrangement
was entered into, and memorandum signed, by
counsel of both parties, before the jury were sworn,
for a referee to settle the terms of a separation by deed,
with full power over the question of income. Sub-
sequently the wife moved to re-enter the record and
set the case down for hearing. The court refused
the motion, holding the wife bound by the agreement
that the proceedings should be stayed, and the suit
not moved, so long as she could show no breach of
the terms of the agreement by the other party.
This was originally a petition by the wife for a judicial
separation, by reason of her husband's cruelty. The case
came on for hearing before the Judge Ordinary and a

Div.]

MARSH AND OTHERS v. MARSH AND OTHERS.

special jury on the 16th June 1859. Before the jury were sworn, counsel on either side stated that they had advised their respective clients that the differences between them had better be made the subject of private arrangement, and that Mr. and Mrs. Hooper had agreed to this suggestion. Accordingly the jury were dismissed, and the following memorandum of agreement was drawn up :

"In the Divorce Court, Hooper v. Hooper: record withdrawn, proceedings to be stayed, and the suit not moved; Mr. Hooper paying the present alimony of 250% per annum ordered by the court, and agreeing to add thereto 50%. per annum. Mr. Brabant to be requested to settle the terms of a separation by deed, with full power over the question of income.

"(Signed) "K. MACAULAY,

"MONTAGUE SMITH."

There was some delay in bringing the matter before Mr. Brabant. In the course of December the agents of both parties met before him, when Mrs. Hooper's solicitor seems to have expected Mr. Brabant to go into the question of cruelty, alleging that the intention of the reference was to substitute Mr. Brabant for the court, and that the question of cruelty or no cruelty might have a bearing upon the amount of income. He also urged that Mr. Hooper should pay Mrs. Hooper's costs as between solicitor and client. Mr. Hooper's proctor urged, on the contrary, that Mr. Brabant's duty was to arrange the terms of a separation, without going into the previous conduct of the parties. Mr. Brabant apparently took this view of the matter, and, under the circumstances, considered that he could proceed no further in the matter, and so informed them.

Wilde, Q.C. now moved the court for leave to reenter the record, and have the cause set down for trial. He relied on Hayward v. Hayward, 32 L. T. Rep. 262; S. C. 1 Swab. & Trist. 333.

M. Smith, Q.C., contra.

[PROB.

that the costs as between solicitor and client should be
paid by Mr. Hooper. And that appears to have been
one of the matters most strenuously contended for by
Mr. Clarke in his endeavours to get the whole matter
heard by Mr. Brabant; therefore I think that the
lady, having consented that the suit should be no
further prosecuted (for that is the meaning of these
terms), and not alleging that the other party has
attempted to deprive her of the benefit of anything he
undertook to give at that time, I ought not to
allow this cause to be set down again for hearing. I
consider it a very important point, and shall be very
glad to have it finally settled by the full court, in
order that I may know hereafter whether agreements
proposed and entered into deliberately and advisedly
are afterwards to be treated as a nullity, and all the
expense to be thrown away, the unfortunate husband,
when his wife is the contending party on the other
side, being burdened with the costs of the whole
proceedings.
Motion rejected.

COURT OF PROBATE. Reported by Dr. SWABET, of Doctors'-commons.

Jan. 13 and Feb. 15.

MARSH AND OTHERS v. MARSH AND OTHERS. Will-Codicils-Presumption as to what papers form part of a duly executed will-General revocatory clause of all former wills-Effect of annexation of codicil to former wills revoked-1 Vict. c. 26, s. 22 -Costs-Omission from probate of opprobrious

terms.

When several sheets of paper, constituting a connected but not in all points consistent disposal of property are found together, the last sheet being duly executed, the presumption, in the absence of direct proof, is, that they all formed the will of the deceased at the time of execution, though a general revocatory clause of "all former wills" leads to the inference that the deceased at that time intended to leave a subsisting will.

The physical annexation (by a piece of tape, e. g.) of a duly executed codicil of later date to testamentary papers, duly executed but revoked, is no ground for inferring the "intention to revive," required by 1 Vict. c. 26, s. 22:

Semble, such intention can only be showu by the contents of the codicil itself.

Mrs. Roscoe

In this case the testator James Stamford Caldwell died a bachelor on 17th Nov. 1858. He had had three sisters, married respectively to W. S. Roscoe, Esq., A. C. Marsh, Esq., and Sir Henry Holland. and Lady Holland died before the testator; Mrs. Marsh, who had several daughters but no son, survived him, and as coheir was one of the defendants.

CRESSWELL, J.O.-I think there is a distinction between the present case and that of Haywardv. Hayward. Here the parties have agreed that the record should be withdrawn, proceedings stayed, and the suit not further moved; there the case was adjourned on the representation of counsel that an agreement out of court had been, or would be, arranged. One of the parties refused to abide by that agreement, and the cause simply remained on the books, as it was before, unheard; here the cause remains on the books subject to an agreement made in court that the suit should not be moved any further. I am of opinion that I ought not to grant the application. I have been referring to the statute to see whether the party will have an opportunity of appealing, otherwise I might have taken further time to consider the course I should pursue; but I find Mrs. Hooper may appeal if she is so advised. I think it is of the last importance that parties who come before the court with their eyes open, and agree to pursue a particular course of action, that course being confirmed by an order of the court, should not be permitted to treat the court with contempt by afterwards refusing to perform it. Parties make their agreement by the advice of counsel at the time, then, because perhaps The will of 1856 consisted of seventeen pages, and some one afterwards suggests that they might have was written on paper of three different sizes, loosely made a better bargain, they endeavour to get rid of their tied together. The first three pages and the last of the agreement. It is impossible to read the statements of two concluding sheets were in the testator's handthe parties in this matter without seeing that there has writing; ten of the intermediate pages were parts of a been an attempt to bring before Mr. Brabant matters will prepared in duplicate by testator's solicitor in 1854; which were never intended to have been submitted to and the three remaining sheets were part of a draft him, in order to get rid of the agreement which was will prepared by another solicitor, under the testator's made in this court. Mrs. Hooper undertook at the instructions, in 1856. Of this document the two last time, as to this suit, that it should not be moved; sheets were executed and attested, being dated rethat suit was not referred to Mr. Brabant, there was spectively 22nd March and 19th May 1856. The last not a syllable as to the suit or all matters in difference, sheet contained a general revocation of all former wills. or any term of that kind, being referred to Mr. The codicil of 1856 is sufficiently noticed in the judgBrabant; neither was there anything like a stipulation | ment. The codicil of 29th April 1858 was wholly in

Twenty-seven executed wills and codicils were found after Mr. Caldwell's death, besides a large number of incomplete testamentary papers; Eliza Louisa Marsh, Georgina Amelia Marsh and Rosamond Jane Marsh as executrixes; a will bearing date the 19th May 1856; a codicil of 18th June 1856; and a codicil of the 29th April 1858.