determined when there was default in payment of the principal and interest. In Doe d. Rogers v. Cadwallader, (2 B. & Adol. 473), Littledale, J., throws doubt upon the authority of Doe d. Whitaker v. Hales, (7 Bing. 322). [Patteson, J.-I deny that the mortgagor is tenant at all to the mortgagee.] Then the question as to demand of possession falls to the ground. Cur. adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court. This was an ejectment by a mortgagee against a mortgagor. On the trial a doubt was raised whether the defendant was not entitled to a nonsuit, and a rule was moved for on the point reserved. The mortgage deed contained a power in the mortgagee to enter and distrain upon the premises for interest, if unpaid for a certain length of time, as for rent; and the lessor of the plaintiff had in fact so entered and distrained at a period later than that of the demise laid in the declaration, but for interest accruing before the day of demise, and this act of his was said to be a recognition of the defendant as a tenant.

On looking at these very prolix deeds, we think that the absolute conveyance to the mortgagee in default of payment at the time specified, and long since passed, is not at all qualified by the power to enter and distrain for accruing interest: that is a power wholly collateral, which, though it could not indeed be exercised unless the defendant were actually in possession, and is confined by the deeds to such part of the premises as shall be in the actual occupation of the mortgagor, does not create any right inconsistent with that of the mortgagee to recover by virtue of this conveyance to him, there being no clause that the mortgagor shall continue to hold possession so long as he shall pay interest, though

he covenants to do so.

The word rent does not require that a tenancy should exist at the time of distraining, but only directs the mode of dealing with the distress. Doe d. Whitaker v. Hales, (7 Bing. 322), therefore does not apply; and Doe d. Rogers v. Cadwallader, (2 B. & Adol. 473), is adverse to the defendant.-Rule refused.

CONSISTORY COURT.

TUCKER v. TUCKER.—July 14.

The Confession of the Wife, her Correspondence with the alleged Particeps Criminis, and her going to him on the Discovery of the Correspondence, although she immediately returned,-Held sufficient Evidence of the Adultery, although no Act of familiarity was proved. This was a suit for separation, by reason of adultery, brought by the husband against the wife. No plea was put in, but interrogatories were administered on the part of the wife. The libel pleaded the marriage in India, and cohabitation in the usual form, the voyage of the parties home from India in 1846, in a ship commanded by J. J., the person with whom the adultery was alleged to have been committed, and adultery on board the ship, and at Liverpool immediately after the voyage; the receipt on the 4th November, 1846, of a letter from the paramour to the wife in London, which was snatched out of the wife's hand at the moment it was delivered to her, and opened and read by him; letters dated the 4th November, 1846, from the wife to the husband and the paramour, and on the 5th to the father of the husband; the libel further pleaded that the wife went to Liverpool on the 5th November, saw J. J. there, and returned to London on the 6th, and the commission of adultery on this occasion; and other letters of later date from the wife to members of the husband's family. The witnesses could depose to no

act of familiarity, but the letters of the wife contained expressions amounting to a confession of guilt; and some of the witnesses deposed to admissions to the same purport made by her in conversation. The visit to Liverpool and the interview with J. J. was proved, but there was no evidence of any adultery then committed.

Sir J. Dodson, Q. A., (with whom was Jenner), for the husband, was not heard, but the Court called upon Haggard and R. J. Phillimore, for the wife, to begin. They argued, that the confession of the wife, supposing the admissions to amount to a confession of actual adultery, was not sufficient to enable the Court to pronounce for a separation, that supplemental evidence was necessary, shewing that opportunities of being alone had been sought, or that acts of familiarity, and what were called proximate acts, had taken place. In the present case nothing of the sort was in evidence, the fellow passengers on the voyage had seen nothing even to raise their suspicions, and the maid who attended the wife on board the ship had been sent back to India without being examined, though she was in England when the cause commenced. But the letters did not contain a confession of adultery, they merely spoke of her guilt or fault, which might be levity or imprudence, stopping short of the actual crime; and the verbal admissions made however, in moments of great excitement and distress, did not go beyond the letters. The going to Liverpool on the 5th November was no proof of adultery, and the person in whose house the wife slept on that occasion, deposed that nothing criminal could have occurred in her house. [They cited Mortimer v. Mortimer, (2 Consist. Rep. 310); Hamerton v. Hamerton, (2 Hagg. 8); Grant v. Grant, (1 Curt. 16); Noverre v. Noverre, (10 Jur. 682).

Dr. LUSHINGTON.—If Í entertained any doubt whatestablish the charge of adultery, it would be both my ever as to the sufficiency of the evidence in this case to duty and my inclination to avail myself of the benefit I should derive from the arguments of counsel; but as I really cannot bring myself to think that there is any deficiency, either in law, or morally speaking, to affect the conviction in my own mind, I should only unnecessarily trouble the gentlemen who appear for Mr. Tucker. At the same time, I beg leave to express my obligation to the counsel for Mrs. Tucker in calling my attention to those points to which they have directed my notice, for it is desirable that the vigilance of the Court should be kept alive to these cases; and the Court always feels that obligation when its attention is aroused. But with regard to the case itself, and the principles upon which it was argued, no doubt it is true that with respect to the canon, and the numerous modes of its application to cases of separation à mensâ et thoro, as well as nullity, there can be no doubt that the Court is bound not to pronounce a separation on charges of adultery from the confession of the wife or the husband alone, and for the best and plainest reasons. I do not, in the slightest degree, dissent from the wisdom of that canon, because it is to enable the Court to guard against the possibility of imposition by a confession, which may have been brought forward-improperly and fraudulently brought forward—with the consent of both parties, to obtain a separation. That was the principle upon which the canon went; it was to prevent what, in former days, took place, but which, I hope, has not existed, at least, not in many cases, during the time I have sat in these courts, namely, attempts to obtain a separation, by reason of adultery, upon a confession, when no adultery had taken place, and the whole was mere collusion. I accede not only to the rule of the canon, but to the principle on which it is founded; but, in acceding to that principle, I must take care that I do not stretch it beyond those bounds within which it ought fairly to be confined; for if I were so to do, the inevita

ble consequence would be, that, in many instances, the husband or the wife-the injured party, whichever it may be―would be left without remedy for a real grievance. I do not apprehend this case falls within any authority that has been cited. In the case of Mortimer v. Mortimer, (2 Cons. Rep. 310), I well remember the words of Lord Stowell,-pressed as he was, and closely pressed, in argument, that there was nothing against the wife except her own confession. With his usual energy, he said, "What evidence can be more strong, more convincing to the mind of any judge, than a real and bonâ fide confession." I do not say that I use his very words, but I am sure that I express myself in the very spirit of the terms in which he did express himself. (P.315). My Lord Stowell, in that case, and in others, did not lay down any rule as to what were the circumstances which, called in aid of a confession, would be sufficient to work on the mind of the Court both a moral and legal conviction of the guilt of the party. It is true he does use the expression "proximate acts," (p. 317), because the very nature of the case itself, and the circumstances which were pleaded, naturally led to the adoption of that expression; but it was not used in the sense of expressio unius exclusio ulterius, but it was with reference to the case itself. Now, with regard to the case of Hammerton v. Hammerton, (2 Hagg. 8), that appears founded on a different principle: there the wife had received, and was convicted-if I may use the expression-of receiving letters from the supposed adulterer, of the very strongest kind; but it was also laid in the proceedings, that they had had a certain meeting, at which meeting adultery had taken place; yet, in truth, when the evidence came before the Court, it entirely failed in proving that the parties had ever met on any occasion on which carnal intercourse was likely to have taken place between them; and in that case, Sir John Nicholl, with great propriety, though feeling the hardships of the case, and being morally convinced of the guilt of the wife, would not pronounce sentence on that evidence, but gave opportunity for the production of further evidence, which was procured from Paris, and the case eventually ended in a separation. Now, with respect to Grant V. Grant, (2 Curt. 16), that is more applicable, because in that case there was evidence of a confession by the wife, and some corroborative evidence ;-I can hardly call it corroborative evidence;-but some independent evidence as to improper familiarity having taken place between them, and circumstances having occurred which led to the suspicion of adultery; but in that case the divorce was pronounced for both, by Sir H. J. Fust, in the original case, and by the Privy Council in the second instance; therefore, so far as the circumstances go, if this case does come up to that, I should use it as an authority. With regard to Noverre v. Noverre, (10 Jur. 682), the difficulty was this: it arose from the relative position in which the parties were placed. The person charged with adultery was very young, and was apprenticed to Mr. Noverre, a surgeon. Of course, from his age, and the situation in which he was, there was constant daily opportunity of their meeting, and as there was no direct act of indecent familiarity proved, the Court was in this difficulty, that it could not say, in the case of Noverre v. Noverre, that there was any one particular fact which directly led to the proof of adultery. I was under the necessity, after great consideration, of taking every one of the circumstances and combining them together, and, upon the combination, I considered myself justified in pronouncing for the separation. Now, let us look to the present case. The first consideration is, is there, or is there not, a clear confession in the letters or writing, because that is the foundation of the argument in such a case as this? Now, I have read over the letters, I do not think it necessary to go through them; but it does appear next

to impossible that any person can look through these letters addressed to Mr. Tucker, the father of Mr. Tucker, the husband, and not come to the most clear and undoubted conclusion that there is a confession of adultery committed. I must read one of these letters, a part of it at least, in order that it may be seen that I have not hastily formed an opinion of this case, however strong that may be:-" Until three days before we left the ship, and what with my husband's continued coldness, and the kindness shewed me by the other, I forgot myself. The letter R. saw was the first I received, I assure you, since we have been in London, and I had that very day determined to let R. know everything, for as he was getting kinder to me, I felt I could be false to him no longer. Father, I have deeply regretted that one unfortunate day! Oh, father, could I but see my husband, my repentance would touch him, and I feel convinced he would forgive me my fault when he thought of my youth and inexperience!" Can anybody doubt, not merely from the contents of this letter, but all the others taken together, that there was a full confession made of the adultery with Captain J.? I entertain no doubt whatever. What is the only other question? What is the auxiliary evidence? Why, the first auxiliary evidence that I have is, that it is proved the wife was ready to receive, and did receive, a letter from Captain J. himself, dated 29th October, 1816. I think, again, nobody can peruse that letter without coming to the same conclusion, that it is an admission entirely of improper intercourse taking place between the parties. It is said there is no evidence from on board the ship; it is to be regretted that there is an absence of it; at the same time, I am not prepared to say that the absence of the evidence-not knowing whether it was easy to be procured or not-could be fatal. But there are circumstances in this case which, to my mind, put it beyond all doubt and question. It is on the 4th November that the discovery takes place, in consequence of Mr. Tucker snatching a letter from his wife's hands, an perceiving in what terms Captain J. had addressed her. Then, from the evidence of the father of Mr. Tucker, I have this fact: She takes him, on the 5th, about the town, in her anxiety to visit some lady, a friend of hers whom she does not find, and then, the same day, down she goes to Liverpool, I have it from a person of the name of Swan,-and Captain J. comes with her, and takes lodgings, and there she remains till the next day. When I see that the immediate consequence the rupture is, that she falls into the arms of the paramour, is it possible I can for a single instant doubt that this intercourse had taken place between the parties? And another great principle, as well as that confes sion alone, does not support the adultery, is, that no one should be called to prove the precise time and place where it occurred. I know it has been often la down in old cases; but it is not necessary to prove the precise time and place, because so many difficulties wil necessarily arise, if proof so strong is required, that justice would often be defeated. In addition to this. there are from time to time the declarations at a subsequent period, spoken to by Mrs. Succold, though, in the first instance, she qualifies her evidence, and states that Mrs. Tucker was in that state of mind, that the de claration is not to be relied upon, yet afterwards she repeated, she renewed this declaration, when not ins disturbed state of mind. It is not simply confession: it is confession confirmed by the receipt of letters from the paramour; and by declarations made at a subse quent period, free from all reasonable doubt, and cor roborated from the circumstance of going to Captain J. I think it is impossible for the Court to entertain the least doubt of the guilt of the wife, and I must pronounce for the separation.

COURT OF CHANCERY.
GROOM v. STINTON.-Nov. 2 and 3.

Practice-Inrolment of Decree.

In order to stop the Inrolment of a Decree, the Order for rehearing must be served before the completion of the Inrolment is made.

The Report of the Case of Robinson v. Newdick (3 Mer. 13) observed upon.

This was a motion on behalf of the defendant, to vacate the inrolment of the decree pronounced by the Vice-Chancellor of England in this cause, under the following circumstances, about which there was no dispute between the parties:-In February, 1847, the decree was pronounced, and, on the 7th July, in the same year, the docquet of the inrolment was left by the plaintiff's solicitor with the secretary for the signature of the Lord Chancellor, notice of this proceeding being given on the same day to the solicitor of the defendant. A caveat had been previously entered on behalf of the defendant, and the plaintiff was accordingly precluded from perfecting the inrolment until the expiration of twenty-eight clear days from the 7th July, namely, until the 5th August. On the 2nd August, a petition of rehearing was left by the defendant's solicitor with the secretary of the Lord Chancellor, and was answered in the usual form on the same day. On the 3rd August, the defendant's solicitor obtained the petition so answered from the secretary, and, on the 4th August, left it, accompanied with the undertaking to pay costsand the deposit of 207. with the registrar, for the purpose of having the order for rehearing drawn up, passed, and entered. Before nine o'clock on the morning of the 5th August, the defendant's solicitor gave notice to the solicitor of the plaintiff of the steps he had taken, and the order for rehearing having been drawn up, passed, and entered, he served it on the plaintiff's solicitor at about twelve o'clock. Before, however, that the order was served, but subsequently to the notice received from the defendant's solicitor, the plaintiff's solicitor perfected the inrolment, by procuring the signature of the Lord Chancellor. Under these circumstances, the defendant made the present application to vacate the inrolment; the question being whether, in order to prevent the inrolment, it was necessary that the order for rehearing should be served before the expiration of = the twenty-eight days.

2

Rolt and Terrell, for the defendant, and in support of the motion, contended, that the defendant had done all that was necessary within the time limited; that he had twenty-eight days in which to present his petition of rehearing; and that this was complied with when the petition was left with the secretary of the Lord Chancellor. [They relied on Robinson v. Newdick, (3 Mer. 13).]

J. Parker and Amphlett, for the plaintiff, argued, that a wrong view of the practice was taken on behalf of the defendant; that nothing short of the service of the order for rehearing could stay the plaintiff from completing the inrolment after the expiration of the twenty-eight days. [They cited Dearman v. Wych, (4 My. & C. 550), as being a direct authority in favour of the plaintiff, and urged, that the points really decided by the case of Robinson v. Newdick could never have arisen, if the practice were such as contended for by the other side. The cases of Stevens v. Guppy (T. & R. 178); Barnes v. Wilson, (1 Russ. & My. 486); and Wardle v. Carter, (1 My. & C. 283), were also referred to.

Rolt, in reply.

Nov. 3.-LORD CHANCELLOR.-I have looked at the cases which were referred to in the course of the argument, and I have no doubt as to the mode of proceeding applicable to the one now before me. The case first mentioned was Robinson v. Newdick, (3 Mer. 13), in VOL. XI. ૧ ૧

which there were three points raised; the first of which was doubtful, and has a bearing on the present case; but the remaining two were clear of doubt. On these two the judgment of Lord Eldon stands good, without reference to the other point. The reporter, however, makes his Lordship say, "Upon all these grounds I think the defendant right;" but it is not to be supposed, that, where there was a clear opinion expressed on two points, which were sufficient of themselves to support the decision, judicial consideration was given to any other. In Stevens v. Guppy, however, the point was distinctly raised, and there Lord Eldon decided in a manner quite contrary to what is imputed to him in Robinson v. Newdick. In Stevens v. Guppy the petition of appeal was presented on the 6th December, and the order upon that petition was made on the 7th December, but not served until the 12th. The inrolment took place on the 10th, that is, after the presentation of the petition. Lord Eldon, however, assumed the inrolment to be good, and set it aside on the ground of conduct. This is, in fact, an express decision, that to perfect the order for rehearing, and to defeat the inrolment, the order must be signed and served. The cases were all brought before me in Dearman v. Wych, (4 My. & C. 550), and I there came to the decision that service of the order was essential. The parties, however, had a right to call on me to review my decision, but they have not satisfied me that I there came to a wrong conclusion. The present application, therefore, to vacate the inrolment, has no foundation, and must be dismissed.

FULLER v. WILLIS.-Nov. 4.
Practice.-Irregularity in a Decree.

On the second rehearing of a Suit, the Court refused, after the Lapse of a long Period of Time, and where under the Circumstances of the Case no substantial Injustice had been committed, to interfere with the Decree merely on account of Irregularity.

On the 27th March, 1847, upon a petition presented by the plaintiffs in this suit, the Lord Chancellor granted a second rehearing of the supplemental suit, there being an evident error in the decree. The case is fully reported sup. 233, and the following account of the result of the rehearing will serve as a conclusion to the former report.

Stuart, Lovat, and Giffard, for the plaintiffs, contended that there was in fact no decree in the supplemental suit; that it was clear some decree should be made; that looking at the facts of the case, Browne Willis could be treated as filling no other character than that of mortgagee in possession, and must account accordingly.

J. Parker, and Glasse, for Browne Willis, insisted, that there was no need of any decree in the supplemental suit; that the decree of the 20th June, 1831, in the original and revived suits had exhausted the whole matter; that there was no case made out against Browne Willis as distinguished from John Willis. Stuart, in reply.

LORD CHANCELLOR.-There seems no difficulty as to the course which I am bound to pursue in this case, for though I might thereby exclude the case now raised against Browne Willis, yet I could not depart from the rule laid down by the binding decree in the cause of June, 1831. The claim was originally made against John Willis, as a mortgagee in possession. It appeared that parties had been from time to time nominated by him to receive the proceeds of the mortgaged estates; and Sir John Leach was of opinion that he must, under the circumstances, be dealt with as a mortgagee in possession. On appeal, however, this was considered to be erroneous, and that there was sufficient to shew that John Willis had only acted as receiver of the Court in

nisi for a new trial was discharged, and the bill was amended, and, as amended, contained long statements of what took place at the trial, and, on the motion for a new trial, including arguments and observations of the judge and counsel. Answers were put in to this bill, and admissions entered into for the purposes of evidence. And the original suit was now heard on the equity reserved, and the supplemental suit was also brought forward, asking to be put into possession of the estates notwithstanding the result of the trial, on the ground that the course taken by the defendants at law, was an improper evasion of the order of the Court made at the hearing, and entitled the plaintiff to be put into possession of all the estates. On behalf of the defendants it was objected, that the supplemental bill, so far as it sought to set up the proceedings at law as ground for relief, was irregular; and that any ground for relief, as connected with those proceedings, ought to have been brought before the Court by way of petition.

Willcock and Giffard, for the plaintiff, contended that in this case a supplemental bill was the right form of bringing the case before the Court. If an application were made to the Court for an indulgence, or in consequence of some miscarriage in carrying out the decree, it must be by petition; but if the matter was a ground for equitable relief, it must be alleged in the ordinary way, in order that evidence might be entered into respecting it in the ordinary way, and the defendants might be at liberty to make a case in explanation or reply. Here the plaintiff could not have had the full benefit of the equity accruing to him by reason of the conduct of the defendants otherwise than by supplemental bill, and even if he could, it had often been decided that though the plaintiff might have relief on petition, yet that was no ground for dismissing a supplemental bill, but merely made it a question of costs. They cited Milner v. Harewood, (17 Ves. 144); Usborne v. Baker, (2 Madd. 379); Morris v. Ellis, (13 Sim. 50); Waterford v. Knight, (3 Cl. & Fin. 270); Pinker v. Peters, (5 Beav. 253); Holworthy v. Mortlock, (1 Cox, 141); Davis v. Williams, (1 Sim. 5); Brown v. Newel, (2 My. & C. 558); Woodley v. Johnson, (1 Moll. 394).]

Cooper, Kindersley, Cooke, Parry, and Kenyon, appeared for defendants. [They referred to Hodson v. Ball, (1 Phill. 177), and Hope v. Hope, (MSS.).]

Lord LANGDALE, M.R., at the conclusion of the argument, said, that there were more authorities on the practice than had been cited during the discussion. When a cause was brought on for hearing, and it appeared that the plaintiff was not entitled to the equitable relief which he asked for, and could not establish his right to it without first establishing his right at law, the Court delayed its decision on the equity, retaining the bill for a period, enabling the plaintiff to establish his right at law, by giving directions, if necessary, to facilitate the proceedings at law, and preventing the defendant from setting up a defence which might defeat the trial of the legal question. But primâ facie this Court had nothing to do with the proceedings at law. Applications for a new trial must be made to the court of law, and this Court never gave directions for a new trial in such a case. But this Court did not abandon all attention to the subject. It might happen, from some misconception, that the proceedings adopted at law were of such a nature that the real question between the parties could not be tried, in such a case it was the duty of the party to come immediately to the Court, and the Court might attend to the subject so far as to give directions, by means of which the question might be tried. If it appeared that a longer time was necessary for the trial of the question, the bill might be retained for a longer period; but if the proceedings at law were at an end, the Court considered itself bound

by them, and it took the facts as they appeared at the hearing, together with the result of the trial, and the consideration then was, whether, taking them together, the plaintiff was entitled to the relief which he asked for, or to any other and what relief. And it did not necessarily follow, that, because the plaintiff succeeded at law, he was entitled to relief in equity. In this case the plaintiff's title to relief rested on the facts proved at the hearing, and the result of the trial. But that was partly in his favour and partly against him; and to eke out his equity he filed the supplemental bill containing the allegations which it did, and praying to be put into possession. What right had he to add these additional grounds of relief without the leave of the Court? Circumstances might arise in which the Court would give relief, but here the complaint was, that the trial was not so arranged, and the action was not in such a form as to enable the question which the Court intended to be tried, to be tried at all. This matter ought to have been brought to the attention of the Court at the earliest period. The application for a new trial was in 1845. The plaintiff then knew that the question to be tried was defeated by the course adopted by the defendants, and he might have applied for assistance to put the matter in a proper condition. But he did nothing of the sort, but filed a supplemental bill in addition to the bill of revivor, in which he brought forward all the circumstances which have been so often adverted to. He would consider the case, but his impression at present was, that it was not brought forward in a proper manner.

July 29.-Lord LANGDALE, M. R.- By the decree made in the cause of Smith v. Lord Effingham, on the 6th May, 1844, it was ordered that the plaintiffs' bill should be retained for twelve months, with liberty for the plaintiffs, or either of them, in the meantime to proceed at law touching the matter in question in the cause, as they might be advised; and the defendants were restrained from setting up in their defence against any such action the outstanding terms in the pleadings mentioned, or either of them, and from pleading the Statute of Limitations. The plaintiffs, pursuant to the leave reserved, brought an action of ejectment to recover possession of the estate in question, against several persons in possession or occupation of lands upon which the plaintiffs claimed to be first incumbrancers, namely, against Gardiner Chapman, who was a defendant to the bill in equity, and against William Martin and other persons, who were not parties to the cause in equity. The action was tried at Norwich on the 2nd August, 1844; a verdict was given in the action for the defendants William Martin and others, occupying tenants, who were not parties to the cause in equity, and for the plaintiffs, against Gardiner Chapman, with liberty to him to move the Court, by the judge before whom the action was tried. On the 11th November, 1844, a motion was made in the Court of Exchequer, on the behalf of Gardiner Chapman, for a new trial, and a rule nisi was granted. Pending the proceedings at law, Dudgeon, one of the plaintiffs, died, and before that rule nisi was disposed of, that is, on the 7th December, 1844, the plaintiff Smith filed his bill of revivor and supplement, praying upon the supplemental bill for so much of the relief prayed by the original bill as was not waived at the hearing, and that the plaintiffs might be let into possession of the lands in question; and that the rents accrued due since the 2nd August, 1844, might be accounted for; and that on any new trial of the action, Chapman might be ordered to admit that Dudgeon's title accrued to him within twenty years next before the commencement of the action; and for other relief. Very soon after the bill was filed, the rule nisi for a new trial was discharged. The supplemental bill was afterwards amended. Answers were obtained; and the cause is now brought on