[Appeal from the Court of Common Pleas.] [Before COCKBURN, C. J., CROMPTON, BLACKBURN, and MELLOR, JJ., and MARTIN, CHANNELL, and PIGOTT, BB.] BAXENDALE and Others v. THE GREAT WESTERN RAILWAY COMPANY.-Feb. 4. Railway company - Carriers Conditions - Unreason able. The 10 & 11 Vict. c. ccxxvi, by sect. 53, provides that a railway company, with respect to small packages and single articles of great weight, notwithstanding the rate of tolls prescribed by their act, may lawfully demand for the carriage of small parcels (that is to say, parcels not exceeding 500lbs. weight each) any sum which they shall think fit. The 7 & 8 Vict. c. iii, provides, that in whatever way charges are made by the same company, they shall be made equally to all passengers and persons in respect of goods, &c.:-Held, that the company could not, under the former statute, charge a sum to all persons which shall be sufficient to include the cost of collecting parcels; that such a charge, though reasonable in the case of persons who require their parcels to be collected, is unreasonable in respect of those who do not. Appeal from a judgment of the Court of Common Pleas. The action was brought to recover the sum of 4451. 10s. 2d., money had and received, being the amount of alleged overcharges made by the defendants in respect of certain small parcels under 500lbs. weight, delivered by the plaintiffs to the defendants, to be carried by the defendants. The defendants were in the habit of collecting small parcels at the houses of consignors, and of delivering small parcels so consigned to them, as carriers, at the houses of the consignees, and charging a rate for the carriage, to include taking up and delivering. The plaintiffs were also carriers, and were in the habit of collecting goods, and delivering them at the various railway stations and other places. The Court of Common Pleas held that the company were not entitled to charge a sum to include the cost of collecting parcels. The case in the court below will be found reported in 9 Jur., N. S., 1175. M. Smith, Q. C. (Field with him), for the plaintiffs on appeal. The conditions imposed by the company are not unreasonable. The charges are not unequal. The fact of charging some persons less does not of necessity make a charge to others unreasonable. It is impossible to say to what extent there is an overcharge. An action for money had and received will not lie. [They cited Baxendale and Others v. The Eastern Counties Railway Company (4 C. B., N. S., 63); Stevens v. Jeacock and Others (11 Q. B. 731); Garton v. The Bristol and Exeter Railway Company (7 Jur., N. S., 1234); Pickford v. The Grand Junction Railway Company (10 M. & W. 399); and Branley v. The Southeastern Railway Company (12 C. B., N. S. 63).] Bovill, Q. C. (Pollock and Ollivant with him), contra, were not heard. * This decision has been affirmed by the Lord Chancellor. 14, COCKBURN, C. J.-We are all of opinion that the judgment of the Court of Common Pleas was right, and ought to be affirmed. The stat. 7 & 8 Vict. c. iii, contains, what has been called, the equality clause, and that enactment is again renewed by the Railway and Canal Traffic Act. A construction has been put on that statute by the Court of Common Pleas, that a railway company may not include in their charge a sum for collecting and carting small packages, because by so doing they impose on persons who do not require their parcels to be collected a charge, which though reasonable in respect of those who do, is unrea sonable in respect of those who do not, require this service. It is said that the company are authorised, by stat. 10 & 11 Vict. c. ccxxvi, to make what charge they think fit in respect of small packages under 500lbs. weight, but such charge must not be unreasonable; and it is evidently unreasonable if the same sum is charged to those who do, and to those who do not, require parcels to be collected. I think the clause referred to does not repeal the clause in the Traffic Act. It should be understood as settled law, that persons are not to be charged for services which are not required.-Judgment affirmed. COURT OF COMMON PLEAS. [Before ERLE, C. J., WILLIAMS and KEATING, JJ.] ROSEWARNE v. BILLING.-Nov. 19. Wagering-Void contract-Payment of money-Agent, To an action for money paid at the defendant's request, the defendant pleaded, that since the 8 & 9 Vict. c. 109, he engaged the plaintiff to enter, on his behalf, into certain time bargains in mining shares, and that the money claimed was paid in respect of losses sustained on such bargains, and that the said bargains were made in his, the plaintiff's, own name as principal, without disclosing the name of the defendant:-Held, that the plea was bad. Action for money paid for the defendant at his request, and for money due on accounts stated. Second plea, that the plaintiff was and is a mining share agent, and that the defendant retained and employed the plaintiff as such agent, after the passing and coming into operation of a certain act of Parlia ment passed in the session of Parliament, held in the 8 & 9 Vict., intituled "An Act to amend the Law concerning Games and Wagers" (8 & 9 Vict. c. 109), to make and enter into on behalf of the defendant; and the plaintiff then, in pursuance thereof, made and ewhose names were to the defendant unknown, certain tered into for the defendant, with certain persons contracts, by way of gaming and wagering, contrary to the form of the said statute that is to say, certain wagering contracts, under the semblance of pretended sales to the defendant by such persons, respecting the market price and value of certain shares in a certain mine, called the Wheal Harriet, on certain days then to come, whereby, under pretence of contracts, the said plaintiff agreed with such persons, being the perfendant, that if the price and value of the said shar sons with whom the plaintiff so contracted for the deshould be lower on the said future day than on the respective days when the said wagering contracts were respectively made as in that plea was mentioned, he, the defendant, should receive from the said persons the amount of the difference between the value of the said shares respectively on the several days when the same wagering contracts were respectively made, and the market value on the said future days; and if the price and value thereof should be higher on the said fatare days than on the respective days when the said wagering contracts were respectively made as aforesaid, the defendant should pay to the said persons respectively the amount of the difference between the value thereof on the said days on which the said wagering contracts respectively were made as aforesaid, and the market value thereof on the said future days that it never was intended that any shares should be actually bought by the defendant, or sold or delivered by such persons in pursuance of the said wagering contracts as aforesaid, or otherwise, as he, the plaintiff, always well knew; but that such differences alone should be received or paid by the defendant as aforesaid: that the money so paid by the plaintiff was paid in settling and discharging differences which had become payable to the said persons upon the said wagers and contracts so made by the plaintiff as such agent as in the plea aforesaid, he, the plaintiff, having, as such mining share agent, and according to the custom among mining share agents, made the said wagers and contracts in his, the plaintiffs, own name, as a principal, without disclosing the name of the said defendant; and that the said accounts were stated by the defendant with the plaintiff, of and concerning the said money so paid as aforesaid, and not otherwise. should be for the plaintiff. The action is for money alleged to have been paid for the defendant, at his request. The defendant, in answer, says, that the money became due under a wagering contract entered into by the plaintiff, as his agent, with other persons, since the passing of the 8 & 9 Vict. c. 109, and that the money was paid in respect of such contract. Contracts of wagering are declared by the statute on which the defendant relies to be null and void; but they are not declared to be illegal, and the parties who make these contracts are not liable in any penalty for so doing. Here there is a request to the plaintiff to pay money due on a wager contract to third parties, and I am of opinion that if a person be employed to pay a debt, even of that nature, an action will lie to recover the amount so paid. In Jessopp v. Lutwyche and Knight v. Cambers the Courts expressly state, that where there is no illegality, a request by the defendant to pay money makes him clearly liable. These cases, there fore, support our view. The engagement of another to pay a wager, in case of loss, with a promise of repayment, may be considered to be a continuing request, subject to be revoked. Here there is nothing in the plea to exclude the notion of a subsequent request to pay, and there is nothing to exclude the idea of the continuance of such a request. The plaintiff demurred to this plea, the ground stated in the margin being, "that the said contracts are not illegal, and that the said plea does not aver that the" defendant did not request the plaintiff to pay the money claimed.” Joinder in demurrer. H.J. Hodgson, in support of the demurrer.-The plea is bad. The defence is made to rest on the 8 & 9 Viet. e. 109, which, by the 18th section, declares that all contracts or agreements, by way of wagering, shall be null and void. The case of Gye v. Felton (4 Taunt. 877) shews there is a distinction between the right to recover on a contract which is void, and one which is illegal. Here the allegation of the plaintiff is, that he paid money at the defendant's request, and the plea does not aver that the contract is illegal: the fact of the contract being null and void as between the parties to it, is therefore no answer to the plaintiff's claim against the defendant. In Jessopp v. Lutwyche (10 Exch. 614), to a declaration for money paid, and on accounts stated, the defendant pleaded that the causes of action accrued after the passing of the 8 & 9 Vict. e. 109, under and by virtue of certain contracts made between the plaintiff and the defendant, by way of gaming upon the market price of shares. The Court, n demurrer, held that the plea was bad; Parke, B., bserving, that "it is consistent with the plea that the defendant requested the plaintiff to pay over the Loney for him to a third party, and that in fact it was o paid; in which case the defendant has no defence." He referred also to Fitch v. Jones (5 El. & Bl. 238) nd Knight v. Cambers (15 C. B. 562).] WILLIAMS, J.-I am of the same opinion. I think this plea is not to be distinguished from those in Jessopp v. Lutwyche and Knight v. Cambers. It alleges, no doubt, that the money was paid by the plaintiff to the said persons upon the said wagers and contracts so made by the plaintiff, as such agent as in the plea aforesaid, he, the plaintiff, having, as such mining share agent, and according to the custom among mining share agents, made the said wagers and contracts in his, the plaintiff's, own name, as a principal, without disclosing the name of the said defendant." I do not think that that is an allegation which creates any distinction between this plea and those to which I have referred. There is nothing in the plea to negative the fact, that the money was paid to a third party by the plaintiff, at the defendant's request. KEATING, J., concurred.-Judgment for plaintiff. COURT OF EXCHEQUER. [Coram POLLOCK, C. B., MARTIN and PIGOTT, BB.] Shipowner― Registration-Equitable rights-17 & 18 A purchaser, by bill of sale in due form from one who And by 25 & 26 Vict. c. 63, one who has paid the purchase money and taken possession of a ship, transferred by a proper bill of sale, though unregistered, has an equitable title, which will entitle him to maintain trover against any one who has not a legal as well as an equitable title. Lopes, contra.-This plea is not like that in Jessopp 3. Lutwyche, for it states that there was a contract of wagering to the knowledge of the plaintiff. The 18th oction, after declaring that all such contracts are ad, goes on to say, that "no suit shall be brought or aintained in any court of law or equity, for recoverg any sum of money or valuable thing alleged to won upon a wager, or which shall have been desited in the hands of any person to abide the event which any wager shall have been made." It is sub- The vessel in respect of which the action was itted that this plea avers that the money was won brought was sold to the plaintiff by one Atwater, in pon a wager. The money so won is the subject- the month of February, 1862. On the payment of atter of the action, and cannot be recovered. the purchase money, Atwater signed a bill of sale in ERLE, C. J.-I am of opinion that our judgment | due form, which the plaintiff took to the Custom Trover for a ship. Plea, not guilty. The cause was tried at the Sittings after Trinity Term, 1863, before Martin, B. house, but, as he was a minor at the time, it was not registered. The plaintiff took possession of the vessel, and made use of it. On the 17th July following, Atwater became bankrupt on his own petition. Assignees were appointed on the 9th August, who, on the 6th November (plaintiff having in the meantime come of age) seized the vessel, which they afterwards sold. The assignees subsequent to the seizure had the vessel registered in their names. The jury found a verdict for the plaintiff, leave being reserved to the defendants to enter a verdict for them, on the ground that the plaintiff had no legal title to the vessel. A rule was obtained in Michaelmas Term by Collier, S. G. The parts of the statute law bearing upon the rule were the following (17 & 18 Vict. c. 104):— S. 55. "A registered ship, or any share therein, when disposed of to persons qualified to be owners of British ships, shall be transferred by bill of sale; and such bill of sale shall contain such description of the ship as is contained in the certificate of the survey, or such other description as may be sufficient to identify the ship to the satisfaction of the registrar, and shall be according to the form marked (E.) in the schedule hereto, or as near thereto as circumstances permit, and shall be executed by the transferee in the presence of, and be attested by, one or more witnesses. 56. "No individual shall be entitled to be registered as transferee of a ship, or any share therein, until he has made a declaration in the form marked (F.) in the schedule hereto, stating his qualification to be registered as owner of a share in a British ship, and containing a denial similar to the denial herein before required to be contained in a declaration of ownership by an original owner; and no body corporate shall be entitled to be registered as transferee of a ship, or any share therein, until the secretary or other duly appointed officer of such body corporate has made a declaration in the form marked (G.) in the schedule hereto, stating the name of such body corporate, and such circumstances of its constitution and business as may prove it to be qualified to own a British ship, and containing a denial similar to the denial hereinbefore required to be contained in a declaration of ownership made on behalf of a body corporate. 57. "Every bill of sale for the transfer of any registered ship, or of any share therein, when duly executed, shall be produced to the registrar at the port of which the ship is registered, together with the declaration hereinbefore required to be made by a transferee, and the registrar shall thereupon enter in the registerbook the name of the transferee as owner of the ship or share comprised in such bill of sale, and shall indorse on the bill of sale the fact of such entry having been made, with the date and hour thereof; and all bills of sale of any ship, or shares in a ship, shall be entered in the register-book in the order of their production to the registrar. 58. "If the property in any ship or any share therein, becomes transmitted in consequence of the death, or bankruptcy, or insolvency of any registered owner, or in consequence of the marriage of any female registered owner, or by any lawful means other than by a transfer according to the provisions of this act, such transmission shall be authenticated by a declaration of the person to whom such property has been transmitted, made in the Forms (H. and C.), containing the several statements hereinbefore required to be contained in the declaration of a transferee, or as near thereto as circumstances permit; and, in addition, a statement describing the manner in which, and the party to whom, such property has been transmitted." 61. "Of the documents hereby required to be produced to the registrar, he shall retain in possession the following the surveyor's certificate, the builder's cer tificate, the copy of the condemnation, and all declarations of ownership." By the 25 & 26 Vict. c. 63, s. 3, it is declared, "That the expression 'beneficial interest,' whenever used in the second part of the principal act, includes interests arising under contract and other equitable interests, and the intention of the said act is, that without prejudice to the provisions contained in the said act for preventing notice of trusts from being entered in the register-book, or received by the registrar, and without prejudice to the powers of disposition, and of giving receipts conferred by the said act on registered owners and mortgagees, and without prejudice to the provisions contained in the said act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other personal property." Joyce (with whom was Gibbons) shewed cause.-The certificate of itself gives ownership; registration is only required for the purpose of transfer. Without this construction, sect. 43 of the earlier act is absurd. Sect. 57 may seem against me, but it must be read along with the 43rd. (See Duncan v. Tindal, 13 C. B. 253). Supposing legal possession does not vest till re gistration, yet until a guardian is appointed for the plaintiff, a minor, Atwater was trustee for him, and mere trust property does not pass to the assignees (See 25 & 26 Vict. c. 63). By the 3rd section of this latter act all rights are left as they were; save those of persons dealing with registered owners, equitable rights are to be considered. The plaintiff had posses sion of the vessel, and therefore had a good title against all the world but those who had a better. (See Boyson v. Gibson, 4 C. B. 221, and Dixon v. Ewart, 3 Man. 122). Sir R. P. Collier, S. G., and F. J. Smith, in support of the rule.-The policy of the act is to secure certain evidence of ownership (sects. 55, 56, 57; 17 & 18 Vict. c. 104), and an opposite construction would make a great opening for fraud. The case of The Liverpool Borough Bank (29 L. J., Ch., 827, Sir W. P. Wood, V. C.) is expressly in point. [Martin, B.-The question in that case was, whether the instrument relied on was in Form 1.] That was the exact point decided; but the language of the judgment goes the length I contend for. [Channell, B.—In terms ik does, but it must be taken secundum subjecta materiam.] The marginal note is framed on the assumption of that doctrine, and the question was so treated by counsel on both sides. (See also Ep Yallop, 16 Ves. 20; Ex parte Matthews, 2 Ves. 272 and Hughes v. Morris, 2 De G., Mac., & G. 324). [Murtia, B.-The registration of the assignees is after the c version. Joyce.-I took that objection at the trial] POLLOCK, C. B.-I am of opinion that the rule t reduce the damages should be discharged. It at found that persons were liable to be defrauded of their rights after paying the purchase money for vessel; and after the case of The Liverpool Borgå Bank a statute was passed to protect equitable rights If the case were strictly within the decision of Lord Chancellor Campbell, and the high authorities by which the question was decided in both courts, should be bound not to proceed against such authe rities without strong reason; but we have the act of Parliament to strengthen us. The plaintiff bougts the ship, and took the documents; but he could have them registered, and went away satisfied. There by the bankrupt was placed in the position of a trustee to protect his interests, and his representatives are not in a position to dispute them here. 14 MARTIN, B.-It is with great satisfaction that I think this rule ought to be discharged. In doing so, I am so far from thinking that we depart from the principles of the decided cases, that I think they were rightly decided. There are two distinct grounds for discharging the rule. The first, without having recourse to the latest act of Parliament. The plaintiff had lawful possession of the vessel, as against the bankrupt and his assignees, although he could not have transferred it. The 43rd section of the former act requires that the vessel shall be transferred by a bail of sale in the form prescribed by Schedule (E), That was done here, and that gave the plaintiff a good legal title as against the bankrupt. On that being done, the property vests in the purchaser, although by subsequent sections there are some things which he annot do. This construction gives effect to all that has been said by Lords Eldon and Campbell, and by Sir W. P. Wood, V. C. The plaintiff had a lawful claim to the ship against all but persons possessing a better title. I think it likely that Atwater might have defeated him by selling to another, as he had the ostensible title on the registry, and might have transferred it; but that was not done. All this is subject to the second Act. Could a man, after receiving the purchase money, in the interval between payment and registration, sell to a second purchaser? In regard to this question, the assignees are in no better position than the bankrupt. The point is, that when a man sells property, and receives the purchase money, he becomes a trustee for the purchaser. The 3rd section of the later act applies. To give the assignees the right they claim, they must have both the legal and the equitable title, which they have not. Therefore, the plaintiff can maintain trover; and I rejoice that we can so decide, for it is hard to imaque a greater act of spoliation and injustice than is attempted to commit by this defence. PIGOTT, B.-I will only add, that I share my Brother Martin's satisfaction that we can decide in this manner.-Rule discharged. COURT OF PROBATE. WHARRAM. WHARRAM.-Jan. 23 and March 22. Lost will-Proof of contents-Parol evidence only. The plaintiff, the widow of the deceased, after a delay of seren years, propounded the contents of a will of her eland. The document itself could not be produced, cel no sufficient explanation was offered of the manner or cause of its loss. No draft of it was in existence, et evidence was given of its due execution, and that could not have been revoked, and also of its contents. The only witnesses were the plaintiff, her niece, and an urney's clerk, who was related to the plaintiff. The urt refused to grant probate. very doubtful (notwithstanding the current of authoa) whether, having regard to the requirements of it. 1 Vict. c. 26, a lost will can be placed on the foot - if any ordinary document, as a letter or a receipt, that, the loss being proved, secondary evidence of its tts may be admitted. The plaintiff propounded the contents of the will of thew Wharram, dated March, 1857, as contained The deposition of certain witnesses to be by her prod. The defendant, amongst other things, pleaded the will propounded was not the will of the desed. The cause was heard before Sir J. P. Wilde, * Channell, B., had gone to chambers. on the 23rd January, 1864, without a jury, when Mrs. Wharram, her niece, and an attorney's clerk, Milnar, were examined. Staveley Hill appeared for Mrs. Wharram. March 22.-Sir J. P. WILDE.-In this case probate is sought for the will of Matthew Wharram, as contained in the depositions of certain witnesses. The deceased died in March, 1857, and the proof of the will of which probate is now sought, is contained in the evidence of the widow, her niece, and an attorney's clerk named Milnar, connected with Mrs. Wharram by marriage. It is stated, that a week before his death, the deceased desired Mr. Milnar to prepare a will, giving all his property to his wife absolutely; that Mr. Milnar did so; that it was duly executed in the presence of the niece and Mr. Milnar, who signed it as witnesses, and that Mr. Milnar took it away with him. This latter fact is deposed to by the widow and niece, but Mr. Milnar does not recollect it. The widow further proved, that she was continually afterwards with her husband until he died, and that he did not destroy or revoke the will. At his death no attempt was made to prove the will, by reason, it is said, of the property being so small. An unexpected accession to it has lately put the widow upon proving it, but it cannot now be found. No draft of it is in existence, and no document that throws light on its existence or contents. Between six and seven years have elapsed since the death, and the entire proof rests on the parol evidence of three witnesses, one of whom is entirely interested in establishing the will, and neither of the others so situated as to be entirely without bias or prejudice in the matter. But they all swore to the will, and to its contents, and it was treated at the hearing as established doctrine, that a will so proved was entitled to be admitted to probate as a matter of course. And I do not say that, in reviewing the cases, there is not some colour for advancing such a proposition. But some reflexion on the subject has given rise to grave doubts in my mind, and opened up some questions of sufficient importance to the community. Is it competent in all cases to parties, however interested, to claim probate of a will which exists only in parol testimony? May this be done at any time, however remote from the death of the supposed testator? Is the character and cause of the loss of the document wholly immaterial? Does the fact that the party chiefly interested and seeking probate destroyed the will himself, voluntarily, or ignorantly, or carelessly, make any difference? And if so, would this difference extend to careless custody, by which the loss was brought about? These questions are forced upon the Court by the perusal of a case decided in the Queen's Bench. (Brown v. Brown, 8 El. & Bl. 886). In that case a supposed lost will, relating to real property, was placed on the footing of any other lost document, the loss being proved as that of a receipt or letter would have been, and secondary evidence of its contents admitted as a matter of course. If this be a sound principle, the consequences are no less obvious than momentous. The existence of a will, its due execution, and its subsequent loss, must indeed be proved, but proved by parol only, and no corroboration is required. Furthermore, its contents may be proved from memory. Property, however large, real or personal, may thus be disposed of in a direction, however strange, by the unsupported oath of a single witness. Upon such a system it would be difficult to exclude either fraud or mistake. Fraud-for by as much as false swearing is more easy to perpetrate, and more difficult to detect and expose than forgery, by so much are the safeguards which belong to a written will, and the visible signature of the testator and witnesses weakened or withdrawn. Mistake-for as the same parol evidence which sufficed for the authenticity of a will is held competent to supply its contents, the certainty of writing is replaced by the frailty of memory. But the danger has a wider range, for the same evidence that may set up a false will, may practically revoke a true one. The witness has only to give to the former a date subsequent to that of the latter, and insert a clause of revocation, and the evidence, if believed, destroys the first will, however solemnly executed or carefully preserved. A man may thus die with a perfectly executed will in his pocket, and the Court or a jury, on the oath of a single witness, may yet declare him intestate; and this is what actually happened in the case of Brown v. Brown. A will, perfectly executed, was found in the dead man's pocket, but it was set aside by proof of a second will, which was not to be found, and the existence of which was proved by the oath of one witness only. No draft or copy of it was produced, and the contents thereof were proved from memory by the same witness. The Court ruled, that the second will revoked the first, and that the second was itself destroyed by the deceased, as it was in his custody, and not found at his death. The result was, an intestacy, and real property to the value of 40,000l. passed to the heir-at-law. Now, in all this I venture to doubt if the operation of the statutes relating to wills has been sufficiently considered. To what end, it may be asked, does the Wills Act, 1 Vict. c. 26, declare that no will shall be valid unless it be in writing, and signed by the testator in the presence of witnesses, and signed by them in the presence of the testator, if a parol oath and the fiction of a loss can make a will valid without any writing at all? True, the carefully enforced method of execution created by the statute, is of some avail to secure a solemn and deliberate act, in place of a hasty expression of testamentary devise, but has it no further object? Were not this writing itself, and the triple signatures, with the detailed requirements as to their position on the paper, intended also as living witnesses, to bear visible testimony to the reality of the act, and the exact disposition of property which they were designed to attest? And if so, can the Court dispense with the paper and writing altogether? These matters were not adverted to in the case of Brown v. Brown, nor was the attention of the Court directed to them in argument. I persuade myself they are worthy of consideration. Some parallel to the Wills Acts may be found in the Statute of Frauds, which, in like manner, enforces writing as requisite to the validity of certain contracts. Has it ever been solemnly decided that a man may recover, upon a contract within the statute, on parol proof that the requisite contract was signed but had been lost? A very learned judge, the late Baron Alderson, in The Attorney-General v. Sitwell (1 Y. & C. 559), observed, that to reform a written contract by parol, and then enforce it, would be virtually to repeal the Statute of Frauds. Would the substitution of parol evidence for writing in the whole contract be less so? I do not propose to reason out this question, still less to decide it. Before long it may be necessary to do so. Meanwhile, the authorities in the ecclesiastical courts, which are those of this court also, do not, I think, enforce a decision based on such dangerous ground. They are not numerous, and most of them before the Wills Act, 1 Vict. c. 26. In Foster v. Foster and Others (1 Add. 462), a will had been seen and read after the death of the testator. It was subsequently torn up, but most of the fragments were collected and pasted on two sheets of paper, and the rest made up from the context and memory. In Martin v. Laking and Oldham (1 Hagg. Eccl. 244), a will in favour of a child was destroyed by the widow, the draft was I and the widow admitted its existence and destr In Knight v. Cook (1 Phillim. t. Lee, 413), a w torn up after death, and the scraps were past cessfully together. In Davis v. Davis (2 Add the Court was satisfied of the contents of the w that it was not revoked; the deceased had ke a box, where an independent witness had seen the death it was not forthcoming. There a further authorities, namely, In the Goods of T. deceased (2 N. C. 105), and In the Goods of A. L ceased (6 N. C. 528), to the like effect. And i must be added the case of Trevelyan v. Treve Phillim. 149), in which a will was destroyed person in whose custody it was, under the idea had been executed in jest, but the testator was to have spoken of it up to his death as his will. these cases probate was granted, and the like h done by Sir Cresswell Cresswell twice at lea the establishment of this court, but in both ( the authority of Brown v. Brown, in the Queen's above cited. Now, here I must observe two t first, that this current of authority appears flowed on past the period of the Wills Act any notice of that enactment, certainly without argument upon its effect in this regard; and, s that the cases themselves were, in their fa sources of evidence, such as entirely to sati Court. On the other hand, in Huble v. Clark ( Eccl. 115), Sir John Nicholl refused probate, the existence and contents of the will were pro two witnesses, saying, that as the will was alle have been purposely destroyed after death, the would require the most stringent evidence to es it. The result of these authorities is, that this has been in the habit, without notice of the Wi or any reference to its provisions, of allowing be proved by parol only. But it has done so fairly free from doubt or suspicion. From thi of practice the Court does not propose, in the case, to depart. But, at any rate, since the W the parol evidence that should be permitted in the place of a written will, ought to be of cogent character. The Court ought not, I t act on less proof than the Court of Chane always required when asked to rectify mist written contracts, and thus replace written by parol. In Heukle v. The Royal Exchange sen. 318), the Lord Chancellor, speaking of suc said, "To come at that, it is certain there ong the strongest proof possible." And again, in I v. Inchiquin (1 Brownl. 341), I find it said, "To it must be strong irrefragible evidence." An in The Marquis of Townsend v. Strangroom (6 proper irrefragible evidence" is the expressi Is the evidence in this case of that character were, I should desire that the effect of the W should be fully argued and considered. But think it is so. The long delay in applying for the total absence of testimony as to the ma cause of the loss, the custody of the documen was that of the agent of the person chiefly in the interest of one witness, and the natural le the two others, all conspire to infuse doubt tolerable certainty ought to prevail. Unde circumstances, the Court must refuse the gran Note for reference-Brown v. Brown (8 El. & Bl |