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« * » . 

(i. L. i:^^ ^/f 

-/•i.. F)Co 


\cw. tj.b:; 

L 300 

Digitized by 


Digitized by 


Digitized by 











HOUSE OF LORDS, by W. H. Bbknbt. Eaq. of Lincoln's 

Inn. Barrister-*t-Lsw. 
PRIVY COUNCIL, by J. W. Cookb, E»q. of Lincoln'* Inn, 



LORD CtUNCELLOR'S COURT, by Rjchabd Gmftiths 
WELPono, Eaq. of the Inner Temple, 

ROLLS COURT, by J. MacAolat, Eaq. of the Inner Temple, 

GEoaaE 9. Allnutt, Esq. of tlio Middle Temple, Barrister- 

W. H. Bbknbt, Esq. of Lincoln's Inn. Barrister-at-Law. 

Esq. of Lincoln's Inn, Barrister-at-Law. 


The QUEEN'S BENCH, by .\dam Bittlbston, Esa. of the 
Inner Temple, and Paul Pabkbll, Esq. of the Middle Tem- 
ple, 6arristers>at-Law. 

The COURT of COMMON BENCH, by John Thompsok, Esq. 
of the Inner Temple, and Danibl Thomas Etans, Esq. of the 
Middle Temple, Barristers-at-Law. 

The COURT of EXCHEQUER, by Frbdbrick Baiiet, Esq. 
and C. J. B. Hebtslet, Esq. of the Middle Temple, Barristers- 

The BAIL COURT, by T. W. Savndebs, Esq. of the Middle 

Templs, Barrister-at-Law. 
The EXCHEQUER CHAMBER, by the Reporten of the Courts 

from which the cases come. 

The INSOLVENCY COURT, by David Cato Macbab, Esq. of 

the Middle Temple, Barrister-at-Law. 
COMMISSIONERS' COURTS, by John A. Fo.nblanote, Esq. 


IRISH BANKRUPTCY COURT, by J. Lbvt, Esq. Barrister- 

IRISH INSOLVENT COURT, by 3. Levy, Esq. Barrister-at- 

CENTRAL CRIMINAL COURT, by B. C. Robinson, Esq. of 

the Mid(ue Temple, Barrister-at-Law. 

Inner Temple, Barrister-at-Law. 
NORTHERN CIRCUIT, by T. Camfbeu. Fosteb, Esq. B*- 


MIDLAND CIRCUIT, by Adam Bittleston, Esq. of the Iifcer 
Temple, Barrister-at-Law. 

WESTERN CIRCUIT, by Edward W. Cox, Esq. of the Middle 
Temple, Barrister-at-Law. 

NORFOLK CIRCUIT, by J. B. Dasbnt, Esq. Barrister-at-Law 

OXFORD CIRCUIT, by J. E. Davis, Esq. Barrister-at-Law. 

SOUTH WALES CIRCUIT, by Danixi. T. Evans, Esq. of the 
Middle Temple, Barrister-at-Law. 

NORTH WALES CIRCUIT, by Moboan Llotd, Esq. Bar- 

calfe, Esq. Barrister-at-Law. 
EXCHEQUER, by J. B. Dasbnt, Esq. Barrister-at-Law. 

DiLOVE, of Doctors' Commons. 


JoHM Thompson, Esq. Barrister-at- Law. 
ELECTION COMMITTEES, by Edwabd W. Cox, Esq. of tlie 
Middle Temple, Barrister-at-Law. 


Esq. Barrister-at-Law. 
COMMON LAW COURTS, by W. St. Leobb Babwnotox, 

Esq. Barrister-at-Law. * 

CRIMINAL COURTS, by W. St. Legeb Babbinoton, Esq. 

Barrister-at-Law. ■ 


The Written Jadgments are reported verbatim in Short-hand by Mr. H. Gregobt, Short-hand Writer. 





Digitized by 


Digitized by 




ABBOTT t>. BACON. 42, 203 
Abley v. Dale, 52, 6», 78. 168 
Abrsham r. Tlie Great Northern R^- 

wajr Company, 16 
Acraman and Another t. Hemaman, 

Adcock V. Wood, 42, 169, 203 
Addjrman v. Woodman, 160 
Aldis o. Mason, 158, 166 
Alexander v. Lmgham, 62 
Allen e. Coleman, 165 

. Jones, 144 

Loader, 241 

Ambergate, Nottingham, Boston, and 

Eastern Junction Railway Company 

V. Hodgson, 146 
Ambergate Railway Company v. Nor- 

cUSe, 146 
Ambergate Railway Company r. Fay- 
ton. 146 
Ambrose r. Kerrison, 41 
Anderson r. Goiebard, 293 
Anonymous, 79, 190, 223 
Ardin c. Goodacre, 64, 65, 158 
Armistead r. White, 155 

Wilde, 62 

Armstrong v. Parkinson, 204 
Aahton v. Lord Langdale, 175 
Askew V. MilHngton, 220 
Attomey-g«n. v. Bradbury and Eyans, 

■ Fitxgerald, 296 
The Great Northern 

Bailway Compray, 23 

- The London Dock 

Company, 66, 169, 212 

■ The Mayor of Soath- 

molt<m, 274 

■ Napier, 28 
Atkinaon r. Bottrax, 78 

Mottram, 157 

Sterens, 160 

• Wame. 62 

Awde». Didoon, 53, 189 

BACON e. COSBY, 239 

Badchnrst c. King, 175 

Bailey v. Osborne, 50 

Baker «. Boddington, 83 

Bank of Australasia v. Fraaer, 83 

Banks and Another v. Bebbick, 160, 

Bartholomew v. Hewson, 66 
Bartingale r. Hendry. 64 
Barker v. Bireb, 196 

Sown, 83 

BaisU V. Lister, 263 
Bathwick t>. Botcberiey, 109 
Baxter e. Losb, 89 
Bewcrofl r. Grorge, 65, 99 
Beanclerc (Lady) r. Clift, 62 
■ ». Commerell, 166 

Fooks, 94. 107, 165 

■ Hook, 147 

Beavan t. BeaTan, 100, 169 

Bedson r. Lenthall, 66, 99 

Beeley r. Spode, 51 

Bell e. Dominie. 41 

Beldon v. CampbeU. 83, 21% 257 

Beqjamin r. Roche, 66 

Benn r. Skidmore, 169 

Bensnsan r. Nehemias, 292 

Benson r. Nettleford, 149 

Beresfotd (Lady) ». Driver, 307 

Berg c. Brown, 142, 165 

Bernard c. Sheldban, 75 

Berry r. Brown, 130 

Besant r. Cross, 95 

Beran v. Umpleby, 62 

Biddnlph •. Chamberlayne, GO, 124, 

Blackburn v. Twendale, 83 
Btackfordr.ToUer, 231 
Blair e. Jones, 42, 99, 146 

~ Orroond, 75 

Bhkeley v. The Guardians of the Poor 

of the Hoddersfield Union, 66, 100 
Blamiere v. Hunt, 93 
Bland r. Crowley, 83, 267 

Blowers ▼. Rackham, 94, 125 
Boden t>. French, 51, 77, 78, 79 
Bolland v. Bolland, 293 
Bond V. Manning, 62 
Smith, 52 

Boosey r. Jefferys, 110 
Booth r. Clive, 52, 62, G4 

The Monmouthshire Railway 

Company, 142, 154 
Borlen v. Melladew, 90 
Bostock r. The North Staffordshire 

Railway Company, 290 
Bonlger v. Smith, 247 
Bower e. Cunningham, 59 
Bradney v. Garth, 78 
Breese v. Owens, 66, 97 
Brennan e. Husband and Another, 50 
Bridges r. Hawksworth, 183 
Brown r. Clegg, 122 

CoUifr, 147, 190 

Brotherton v. Bnessare, 83 
Brunswick (Duke of) e. Harmer, 142, 

Brysn e. LiviiM^stone, 78 
Buchanan v. Kinning. 244 
Smith, 65 

Cox e. Prichard, 67 
Coyle e. Alleyne, 239 
Crafton v. Fnth, 137 
Cridtand n. Hodgson, 66 
Crofts v. Besle, 144, 158, 168, 172 
Cross c. Bevan, 65 
Seaman, 77 

CuUenford v. Biemage, 83, 100 
Cnnliffe t. Harrison, 66, 189 
Cutts r. Salmon, 87 

Dsries ». Myers, 304 

Waring, 66, 203 

Burrelland Another. 51. 56 

Buckingham (Doke of) v. The Com- 
missioners of Inland Revenue. 83 

Burford v. Griffin and Another, 66, 99 

Burmester v. Norris, 130, 203, 232 

Burnett e. Phillips, 202 

Burt V. Kelly, 146 

Butt V. The Great Western Railway 
Company, 144 


CaudweU t>. MiUer, 52 

Cannan and Others e. Tie Soath-East- 
em Railway Company, 212 

Carman and Others r. The South-East- 
em Railway Company, 146, 160 

Came and Another v. Malin and Anor. 
66, 100, 903 

Carr e. Jaduon, 169 

Carwatdine r. M^sUade, 251 

Castry e. Brookes, 146 

Cathoina, formerly the Crmdale, 43 

Cattell V. Ray, 96 

Cawley and Another «. Famell and 
Another. 201 

Chandos (Marqais of) e. The Commis- 
sionars of Infaud Risrenne, 100, 128 

Chapman v. Chapman, 70 

Chappell r. Papuiioolas, 100 

Charlewood ir. Elliott, 78, 143 

Cheeseman e. Exall, 53 

Chelsea Waterworks Company e. Bow- 
ley, 284 

Cheironet v. Clarke and Uxor. 146 

Chichester (Earl of) v. Hall, 62, 121 

Cbrendon (Earl of) and Others e. The 
Reetor, Ac. of St. Jamea's, West- 
minster, 75 

Clarke and Another v. The Guardians 
of the Cnckfield Union, 85 

CUyv. Crofts. 212, 231 

and Other* v. Rnffoid and Others, 


aeave e. Jones, 108, 129. 288 

Clements r. Fianehon, 62 

aowes r. Beck, 300 

Cobbett V. Grey and Another, 99, 100 

Cockbnm e. Green, 58 

Coe V. Piatt. 66, 189 

Coftlan V. Dixon and Another, 155 

Colboume and Others «. Dawson. 125 

Coleman t>. Mellersh, 45 

Collett e. The London and North- 
western RaOway Company. 75. 123 

Columbine e. Penhall, 65 

Cook e. Coven^. 144 

Cooke r. Cunlifle, 143 

Cooper r. Ball, 125 

Cordy and Others e. Bentley, 279 

Cort V, The Ambergate Railway Com- 
pany, 125, 143. 179 

and Another v. The Ambeigate 

Railway Company. 62 

Cowles V. Cashmao, 40 

De Gruchv v. Bmyerea, 7 

Deeks r. Walker, and re The Borough 
of St. Marylebone Joint Stock Bank- 
ing Company and the Winding-up 
Act, 1848. 219 

Deeson v. Roberts, 96 

Delarue r. Church, 102 

Demain e. Cavell. 99 

Derbyshire, Staffordshire, and Worces- 
tershire Railway Company v. Teb- 
butt. 155 

Derinxy v. Turner, 271 

Deverenx v. Emery, 83 

Dew r. Clarke, 229, 249 

Dews e. Riley, 65, 127, 169 

Dickin r. Ward, 57 

Dirkinson and Another e. The Grand 
Junction Canal Company, 146 

Digby e. Boycott, 88 

Dixon r. Roper, 96 *( 

Doe e. Challis, 142 
King, 83 

Doe dem. Armistead •■ The North 
Staflbrdshire Railway Company, 59 
Lord Ashbatnham v. Mi- 

chael. 50. 75. 154 

Baddeley •. Maawy, 

155. 165, 221 
Betre.Neal, 77 

Benson r. Frost, 145 

Bolton V. Roe. 66 

Bond e. Burton, 62 

Bray r. Roe, 66. 99 

David and Othen «. Jones, 


Davles e. Davie*. 104 

Daviea t. Thomas, 66, 203 

Dixie V. Davie*. 66. 203 

Ever* and Ux. t. Challis 

and Another. 4 

Goodwin r. Joyce, 64 

Guest c. Bennett, 42, 189 

Hale V. Galvin, 65, 70 

Hellver e. Kiiw, 66 

Hopkins e. Prioe, 169 

HopUnson and Othen v. 

Femnd, 183 

Hudson V. The Leeds and 

Bradford Railway Company, 50 

Hutchinson ». Hurst, 168 

Hyde v. The Corporation 

of Manchester, 288 

• Jones r. Hughes, 5 

Jones V. Willis, 62, 75 

Maclienxie r. Baylb, 172 

-Roe, 65 


Morse e. Grove, 168 
Newman o. Rusham, 50, 

NichoUs V. Bower, 50, 61 
Oxby V. Flatters, 62 
Padwick V. Wittcomb, 132 
Fagev. Page, 123 
Pa£ner e. Eyn, 40, 142, 

Psrsey v. Hemming and 
Others, 89 

Patrick and Others v. The 


Duke of Beaufort, 66 

— Player v. Dashwood, 50, 

Pottow e. Fricker, 66 

and Anor. v. FHdcer 


Doe dem. Qninlan t. Roe, 51 

Richards v. Lewis, 96, 126 
Shalcroft v. Palmer, 75 
Shawcroft r. Palmer and 

Uxor, 252 

Stadden e. Beale, 40 

Tatham v. Cattamore, 50, 


Twining e. Roe, 158 
^—— Richards r. Lewis, 52 

Wcstbrook r. Johnson, 75 

—^— Walmesley and Another r. 

King, 66 
Douglas V. Stevenson, 212 
Drew and Others r. CoUins, 158, 160- 
Drnmmond t. Tillinghnrst, 50 
Duncalfr. Biddle, 42 
Dnnkley t. Paris, 75, 96, 158 
Durell e. Kevns, 66, 100 
Dyson «. Willis, 40 

127. 168, 169 

East and West India Dodcs and Bu-.- 
mingbam Junction Railway Com- 
pany r. Gattke. 85 

Easterby e. Fenwick, 138 

Eaton V. The Swansea Waterworiu-- 
Company, 50, 75, 154 

Eccles e. Chard. 283 

Edwards r. The Cameron Coal Com- 
pany, 42, 100, 130 

Elam V. The London and North-west- - 
em Railway Company, 40, 50 

Electric Telegraph Company v. Biett,- 
and Another, M, 107 

Ellard v. Cooper, 67 

Ellen V. Topp, 42, BZ 

EUiott V. Clayton, 26 

■Lewis, 62 

Ellis c. Bowman, 10 

Embrey v. Owen, 66. 79 

Emery v. Bond, 275 

England and Other* e. Smith, 98, 99~ 

E*tob «. Wri^t and Others, 280 

Bx parte Askew, 160, 169 

Alloock. 147 

Bagge, reThe Northern Coal' 


Mining Company. 13, 113 

Bedford, re Bedford, 148 

' Bird, re Boome 

' The Corpontion of Biittcd, 

Byfns e. Byflu, 30 
Carter, re Carter, 269 
Carrey, 189 
Clegg, raClegg, 259 
Crass, re Rgott, 160 
Crossfldd, re The North of 

Eni^d Joint Stock Banking Com- 
pany, 47 

Croxton, re The Oundle 

Union Brewing Company, 1 

Edwards, re Hamer, 44 

Frisby, 55, 84, 85 

The Fairish of Gatediead, 85 

Gay, re The Ijondon and Bir- 

mingham Extension, and Northamp- 
ton, Daventry, Leamington, and 
Warwick Railway Company, 240 

Hall, 189 

Hamer, re The St. Geoiga 

Steam Packet Company, 24 
—^ Harper and Aniother, 55 

Haylock. 142 

Hill and Everill, re The 

Tring, Reading, and Badngstoke 
Railway Company. 250 

Hirschel, re The Brighton, 

Lewes, and Tunbridge Wells Rail- 
way Company, 1 

HoUingworth, re HoUing- 

worth, 303 

The Rev. Mr. Holloway. 160 

Holme, re The North of Eng. 

and Another, 81 

land Joint Stock Banking Company, 

Digitized by 




Bz parte Hyde, 147, 170 

— Jamef, r* The Nortii London 

Jonction Railway Company, 88 

Johnson, re CroBs, 269 

Kearney, re Kearney, 18 

Kirit, re Kidd, 234 

■ TheTiBamington Paving Com- 
tta^a fill 

niiuioners, 85 

The London Gaelight Com- 
pany. 147 

-^ — r Meox (execnton), r» The 
Royal Bank of Australia, 48 

-r— T" ^S?^ ."«' Smu, rt The 
Rwby, Warwick, and Worcester 
Raflway Company, 58 

RalpbllBlse, 147 

— -— -Bo*«i««>, reTha B»^ BmA 
of Aostmli^ U 

""""•"^^ Synioiu, 8S 

— — Thomley, 85 

Xrercr, IV 

■The Imstoe* of 

LovaUnd, esq. 147 *" 
-— — Tba *n«teaa «C Birtw and 

Lightanctke Hamlet of Poplar and 

Bladcvall. 171 

^^— ToBstall, W. 

William Violett, 309 


Woods, >*Woaia,lM 

Erans r. George, 40, 155 


Fallc e. ThompaoB. 99 

Farrell and Another e. Caviar and 
Another. 168 ^ 

Farrington r. Bolt, 66 

Fenn and AnoOar «. Btdeatoo, 146 

— — — Olliera ». Sttlwtao and 
Others, 42 

Fennell e. Finder, 148 

Femandaa r. FarUa, 58, 189 

Fmney v. Beasley, 94 

Fishmongers' Company «.IKaadale. 7 

Flight.. Lloyd. iS^' x«-.™b./ 

Florence e. Lawson, 2S0 

Flo«ace.Nakas, 160 

Foley v.SnBtb.27S 

Forbas e. Zjimand, SIS 

Forman v. Wright, 51, 96 

Forster (executor of Smh. Claika) «. 
Dawber, 53, 203, 310 

Freeman v. Lomaa, 2St 

Friar r. Gray and Othot. iH 

Froste. Fkrker,146 


G^i ». The Bari of CoartiMm wd 

Othen. 160 
Garrett v. Stoken, 8& 
Gaskell e. Bainbridg*^ 168 
GeU V. FMOer. 171. UO 

^^^HL'- WiUia»»o» ami AiMihar, 

Geialopnlo v. WialM 17 
— __ Fooks 94 
'Gillies e. LongluidK 310 
Gladstone v. Maclean, 64 

Griffin V. Humphrey, 66, 203 
Griffith r. TregeUas, 189 

— Vanheythuysan, 119 

Gripper and Others v. White, 51 
GroTo V. Yoong, 37 
Gondry v. PInniger, 217 


Haigh •. Chambers, 146 

Hatfoul V. Caraaroo's CoalbMt^ &e. 
Railway Company, 25 

HaU V. Hall. 11 

and Others v. Flodctim and 

Others, 54 

HslUwell r. Eastwood, 95 

Hamber ». Hall, 254 

Hamer v. Hamer, 306 

Hanburr r. Hnssey, 238 

Hancock e. Amor, 229 

Hand v. Bot, 78 

Handley r. Wood, 283 

HanseU e. Hacking. 139 

Harding e. Hodgkmsan, GO. 83, 97 

Hare r. Fleav, 164 

and Others v. Corik and Baadon 

Railway Company, 21 

Hart e. Baxendale, 66. 203, 822 
Harrey t>. Towers. 66. 169 
Hawkes e. The Eastern Coontiss Rail- 
way Company, 301 
Hay r. AylinK. 26 
Hellaby r. WeaTer and OOwrs. 271 
HelUnga t. Faooi^ and Others, 169 
Hchham e. Bladcwood and Anotfier. 

158, 166, 16^ 
Henderson v. Eason< 112, 109 
Heneage p. Galland, 159 
Heron v. Hares, 168 
Heslop V. Baker and Others. K, 189. 

Hewitt r. PUerson, 158, 169 
White, 66 

Snnderlaad Marine Insurance Com- 
pany, 8 

KeighUer v. Walmsby, 83 

Kdcewick r. Keogh, 272 
Martcer, 193 

Kemp V. Sober, 117 

Kempson r. Maltby, 96 

Key r. Thimberiey, 83, 243 

Ki^e. The Rochdale Canal Companr. 

Kirk w. Vowia, 8>. 146. 20» 
Knaggs V. Knaggs, 170 
Knspp and Others e. The ParisUoners 
of St. Mary's, Willesden, 191 

LAFONE p. ELUS. 203 
Laidlow r. Laach, 83 
Lambert e. Smith. 144, 158» 167 
Steiner, 146^ 263 

Neat e. Harding, jun. 79 
Needbam e. Bnstow, 169 

Carpenter, 274 

N«*e and Another r. Holland and Wife, 

Newball e. Wilkins, 20 
Newman e. Glutton, 294 

Graham, 144 • 

Newnham r. Sterensoo and Wood, 5 
Newnr, Warrenpoint, and RoaMttotor 

Railway Company v. Moss. 206 
Newton ». Taucher, 66, 82, 189 
Nicholls r. Jones. 99 

and Others t. Dixon. 146, 159. 

Lane e. Green. 1 

— and Another r. Hooper and An, 

other, 85 
Latham v. Spaddiiw. 94, 141 
— Speddy. 50 

' V. jnaciean, o< 
— -Taylor 64 
Glover e. The Noitk Stafibsdah^ BaiU 

GlywawdoSw ». Wihrn, 160 
Goddard v. The Electric TelwiMh 

Couaor, Ue 
Gooch e. Goocb. 874 
Gore c. Harris, 93 
Governor and Campaay «f Chalssa 

Water Woriw a Bowler. 155, 165 
Gower c. BeauMcnt, 142 
Grahaae. Eqiood. 127 

" ■ ' and Another v. laanXM^r. 130 
-<a%d Qtbws (sMiannM of F«|. 

Hewson v. CsroUn. 296 
Hicks V. Watson. 169 
Hill v. The Mayor, Aldanoen, and 
Burgesses of the Boronrii ofChester, 


Spode, 168, 144 

HiUsv. M<Rae,242 

Hint v., Hlyley and Anothe^^ 53, 83 

Hoare p. Ramsey. 96. 51 

Hohby p. Collins. 2 

Holloway v. The Qoeen. 85, 155, 160, 

Hah*. Daw, 75. 94, 198 

Hooper v. BidI, 50 

Hopper V. Smwb, 96 

HorsbD V. Waring. 66 

Houghton p. Bamet^ 282 

Howard v. TSjenbttw and Othen, 83, 

Howe p. Smith. 99 

Hudson V. RoberM, 42, 146, 158 

Hughes 9. Cbark, 64 

Hull V. Hull, 235 

Robinson, 169 

Hant p. The Great Nortitem Rafiway 
Companv, 54, 63 
Wray, 212 

ford) pTErwood, 65 

- ■■ ., — -'— (ai»ig«eat) 
son, 130 

Hnrst p. Hannay. 133, 165 
Hoskisson p. Bru^e, 230 
HntcUns ». liotehins. 196 

In. goods of John Duncan. 172 

Thomas Hamilton, 172 

— B. Martin, 260 

Rev, J. Nayler, 299 

Rer. S. Wells. 20 

-..- Aootbar (assignees of 
r, ^^^^ ?• ^•''nlM". %»«. 169 
GraiM j[Tbe) JfmHan Cual Otmpaa^ 

V, PwM«,3a6 
Grante. Small. 191 
GraothMi QanalConpaiqr «. The Am. 

beiKte. NoKiaahaas. &c Bailwu 

Company. 155, 164 
GrapM «. Boiwey, 130 
Gray p. Virian. 146 
Great Northern R^pwsy Company •. 

The M a n nbeste r .Shaffiald. andUn. 

oolaAfas Railway Company. 146 
Great Western Railway Company n 

Budd and Others. 99,212 
Green «. Coz. 66 

Irvine (Elizabeth) or Dooglas and 

Others, appellant^ Kirkpetrick. xe- 

spondent. 32 
Jsckson e. The Chwing-crov Bridge 

Company. 141 
; — — — - Craib207 
•""S™* (?«rf AwO p. Bryer an4 Others. 

James p. Littlewood, 62 
J«>" <!; Whitbread and Othfrs, 78» 79, 

155, 127 

^^^. "*•' Another (ejwutors) p. 

White. 130. 203 
JeSijea p. Bigg«, 102 
Johns p. Mason, 118 
Johnion p. Clarii. 75 

M'Donald. 412 

—~^ — Wilton, 96. 127 
Jolly p. Cook, 83 
Jonaa p. Adams. 183 
Jones p. Cuney. 171 

Davis and Othmi, S6. 130, 146, 

Lavey p. The Queen. 169 
Lavisaee. Haathwaite. 127, 15^ "US 
Law p. Rawson. 66, 189 
Lawrence p. The Gnat NorOara BaO' 

way Company, 39 
Lean p. Fox, 99 
Laechman v. Manser. 52. 143 
Lenoghan p. Capone, 83. 2(U, 
Leslie p. ThoBMiBon, 277 
Levien p. Heathwaite, 127, 156»IS8 
Liddell p. Robinson. 61 
Lidgburgh p. OmIw, 146 
Lieven p. Swadaea Deck CaaBpaai.aQ&' 
Lmgard r. Taylor. 66 
Lisley p. Clarke, 146, 203 


6, 9, 10 
Lloyd r. Bettelegr, 242 
-— — Oaekbqm. 75, Itt 
Lo<&p. Baker, 66,81 
,— — De Burgh, 308 
Lodge p. Pritchard. 283 
Logan p. Courtown. 306 
Load P. tbiniv, 248 

Long p. , 223 

Lengmeid and Wife e. Holfiday, 83, 

Losh r. Brocket, 93 
- — aad Othana. Riakatt,40 
Lowe p. Carpenter. 203 
Lucasp. Baall.40 

Malcolmson p. Malcolmson, 49 
Man p. Bnckerfield, 85 
Manby p. Cremenini. 206 
Marker p. Marker, 176 
Msrabp. Jssies. 41 

MaHhall p. The York. Neveaatht, and, 

Leeds R»,liniyCoas(paBy, 144. 168 1 

MarsbaU v. York, Newcsstick aad Bar* I 

wick Railway ConI|MBg^ 304 
Misrta p. Butzen. SO 
Mawey p. GoodaU. 1554X80 
Matiier r. Eckeriey. 66 
Misthew p. Biise. 249 
Matlin p. Miller, 96 
iSttHtmne. Piamanbt, 309 
Manle p. Gregory, 99 
M^CrimMt and Othen e. Baokia. 64 
M'Intoah p. The Great WMlersi Bail, 

\ray Company, 219 
Mclntyw p. Coanell. 197 
MIehew p. Bone, 146 
Moniaen p. Hoppe, 1 
Methold p. Turner, 208 
Micklethwaite p. Winter, lig, 185 
Mjddlemes p. Hooker, 66. 203 
Afidhnd (The) Great Western Railwav 
Company «. Michael Qaio, inn. 248 
Milvain p. Casswttii, 75 

•Dd Others 62 

Nbrth Amarioaa ColonU < 

of Ireland p. Mvriaao, 271 

O'Brien p. Lord Kwypw, 43, WJ; 
Ogilby p. Robart^lft 
Obndior •. Tonroaaa, CC 
O'ReOlv p. Smitk 280 


Owens p. Breese. 285 

Parftvment p. Bending^ 146 
Parkarr. BlistQi.Wsutir 

Company. 169, 202 
Partridge e. flafdiicn, 294 
Pawsoy p. Barnes. 302 
Pears (adminislmtar) 9. WilHa 

(executor). aS. 9A 160, 199. 2UI 
Penny p. Penny, 120 
Perdval p. Oweq. 8S 
Philips P. Evans. 87 
Phillips P. Hinins, 85 
Phipps p. Danhney. 232 
Pkge V. Watkins. 53. 146 
Paravagna p. The London and NiiiH 

Weatesn Bailway Company, 4L 
Parkinson p. Mnsgrove, 64 
Paul p. Cm. 40 
Ptaoack «. Jenlun, U 
Peacock p. Pescod, 66 
PeosM V. Woodroffe, 79 
Philips p. Browne. 75 
PUl^s p. BaU, 42 
Pillay and Another p. BlihaiAusi nd. 

Others. 43. 74 
PInney p. Beesley. 75 
Pittman v. King, 283 
Plasterers' Compaav p. The BmUi 

Clerks' Company. '246 
Plus p. Howell, 99 
Popham p. Smith, 52 
Pore P. Warden, 169, 203 
Potts v. The Th,unea Havan, Qod^ md 

Railway Company, 114 
Powell p. Reynolds. 192 

Shaw, 155 

Pottaqpp. Baker.22. 
Prettyuan p. Colegnure. 50, 75 
Prew p. Squire, 41, 95 
Price P. Banks, 79 

Little, 51 

Sims, 169, 212 

Woodcock. 6«, 83, 203 

Pritchard p. Banhsw, 64. 65, 78, 199 
Pfofert and Wife r. Tregw, 51, 65 
Pugh p. Carttar. 94. 107 



• Hairison, 41 


Minn p. Stent. 290 

Mitchell and Ux. p. Cobb.'2S 

Moat p. Morison, 198 

M<>ntoy» p. The Leaiw Amrawia 

Company, 82, 83 
Morgan p. Morgan, U4, aU' 
Naah, 99 
Whitmore, 130 
Momce p. Clerk, 62 
MJoiris p. Jones, 100 
Phelps, 169 

Moseley p. Hyde, 50, 9i, 106 
Moss and Another p. Ferraad, IM 
Moniit ». ttawu 79. 157, 168 
MountcasheHEarl of) p. BaoMI, 144 
Mkirhead a. Evaaa, 66 
liCnrphy p. Keller and OttuHi 207 
Iftirray p. Bohn, 93 

NASH p. CARMAN, 203 

RaUi p. Dennartoan, 100, 127 
B*ndaU and Another p. ThiriwaB. 144 
Batt p. Parkinson and Wroth, 51, 79, 

B» -.41 

f an Attorney, 144 

— An Attorney, 96 

— The Aldham. and Uaitiri BmBditm 
Assurance Society, 155 

— Allen, 44 

— An appeal batwees St. Jama'*, 
Colchester, and Leekstwood, Salop, 

' The Arbitration betaeea LsMiie and 
Brazier, and Othars, 55 
— < Ab AHritralioB between Shaw mti 
Sims and Another, 160 

— The Ashbotoa Uaitad Mia^ 
Company, 87 

— Atkinson's Tiwt Bstaika, and tha ID 
. & 11 Vict, c 96, 282 

— Ab Aawd batmen IbeGieat Wsafr. 
em BailwM Goapanyb appallaitf*, 
and the Inhabitants eif TJlnhwu. 
respondents, 180 

— Barbw (W. H.). 75, 94, 142, 143 

— Joeeph Bell, 312 

Digitized by 




Jt« Charles Marie Bennet, 235 

— JoaepbBHa.X9k 

— Biehard Britnell. 113 

— The Bnttenrick rrM-Sriio^ UM 

— Sw Cbtkkmhmm HoM Gomtmf, 

— Clay. 133 

— QendenniDC 100 

— CoUio^tOnrilr-ntlMBAMMad 
Birmiocham RaihnqF. Cbveatvy, 
Nnneaton. Raihrmr Act, UMBi imA 
tha Loodon andllli ■laiibin. Oimti 
Jnnctioa aad IfaiM haatatv a»i Bb* 
mfacfaam RaUwar CM nHJa Kiia « nT. 

— Chaita CidlivUiVlSI 

— Commaifotd, 190 

— Coalc»2 

— William Comiw> S3& 

— Cotti and AnoliecKt 

— John Cntti, an attamsr, MO, 171 

— Jtaman, 100 

— DSduoa'aTltaf^aBS 

— Stckiao<i,lM 

— The Direct Binnhighaiii, OxfoWt 
BMdtng. aad Bri|thl*»BaitMrCoM~ 
panr, IM 

Onion'a Cn*b 130 
Thompion't Caae, 237, 261 
UpfiUVCaae(No.2). U7 

— The DiiBot BMtM^ ttfwaMtb, mi 
Derooport Baiiwar Company (Ar 
varle W. H. Be«Iar), U7 

— DabWB,UA 

— Doyle, 56 

— James Ednwadscn, 93 

— Jolm F u e em a Xdi«rd% IM 

— EUiotfs Tnut Estate aad. ibTh* 
Trastee Aot IMO. 168 

— BiiiatfaTnut,2M, 

— James Ellis, 279 

— Emery's Traa^ SO 

— Sir parte The Bamet ml K«s<k 
Metoopolitan Jaactioa BaU«ByC«»- 
l»»y, 59 " 

— FaRaBfsTnut,aO* 

— James Fisher, 312 

— Thomas Falter, 279 

— Gedye, 149 

— Gething v. Robson, 94 
Watson, 166 

— Gillson, 169 

— The Oodmanduster FreeCttammar 
School, 36 

— The Godolphin Miniiif Company, 

— B. Gooding, 278 

— The Great North of Bagland and 
Yorkshire and Glasgow Union Jane> 
Hon Railway Company — Carrieli's 
Case, 209 

— The Great North of Bngland and 
Yorkshire and Glasgow Union 
Jonction Railway Company— Bng- 
Und's Case, 175 

— The Great Western Rijlway Com. 
ptuMT and The Airish of Tilehntst, 
Berkshire, 83 

— Thomas Greares, 94 

— The Goardians of St Hattin's-In- 
the-fields. 140, 155 

— James Hnrtey, 44 

— Havin and Cavanagh, 134 

— The Hemp and FUz Mannfactaring 
Comrany, 240 

— H. C. B. Henning, gent. 67 

— Henry Herrick, 148 

— Hewson, a Innatic, 305 

— Higginson, 30 

— Hodgson's Settlement, 241 

— Benjamin Hope, 312 

— Hough's Estate, 282 

— John Howard, 312 

— Joseph Howe, 270 

— The Imperial Salt and Alkali Com- 
pany, 162 

— Tm Independent Aasoianoe Com- 
pany, 59, 89 

— Charles Jennings, Mr part* The 
Belfast and County Down Railway 
Company, 133 

— Keely. 212 

— Kelly, 212 

— Kennett and The Sonth Eastern 
Railway Company, 142 

— Leemmg, 231 

-vThe London and North-Westem 
Railway Company, 94 

— Longhome, 94, 106 

— McDonnell, 216, 246 

— M-Nerin, 287 

— Madden, 191 

— Maurice de Haber c. The Qneen of 
Portugal, 40 

— The Marylebone Joint- Stock Bank- 

fa« Goapimy aad the ynnBt^tif 
Act. 1848, 219 

— William Mingaye, 30i 

«- oeoqtMifaMMMi aia, 

— Nidmltaoid Dariea. 64 
^ MkMtOB, 41 

— The Nofwich Yam Cmatmr^ S3 
» Pattesoa mi Cotti, 67 

— Ridiaid Penneftthsik 134 

~ Waiiam Hm P«mUi 6 

— Rebbeck. 148 

— Kabiasoiih 30 

— Ronaldson, aasigneea, 133, 194 

— TheBstralBaMlcaf AMttaltat 88 

— Rnbans P. Biaisa,, C 

— Russdl'»Bttat«, SW 

— St. Georn Steam PkakstCoMpany, 
car part* Hennesey, X 

— The St. James's Chih» 219 

— 8i »p aa »' a 8attlam«BV 209 

— Henry Smith, 190 

— Smyth'aaaMRneat. 71 

— atndum's Estate, 19S 

— Thomas, 295 

— Bdiowii Henry Taylv, S 

— Richard Udmanh, 235 

— Riabanl Heniy Tolwn, 303 

— The Town Council of ^ImW«I<V 4S 
~ Iteita of tiM Will of P. J. iK 

Masselin, deceased, ISO 

— John Uptoik 171 

— ' TheTicarof Pmtaeiw IM 
-. Vonles, 41 

— WaUh, 55. 56 

— Wilkes's Charity, 101 

<« The WolTerhamytaa. Chwtim and 
BiriHmhaul Janetiaa Raibfay Coaa- 
pamy^-Coapar's oasa, 237, 861 

^ The Welwil— uiliwi, Chaiteit and 
Bh-keokcad Jaa«ti«B Itaii«ar Qdoh 
p«ar<~Halroyd'acaaa, 251 

— The Woreaatar Com Ificiwwin- 
Company, 57 

-~ Watts's Settlemaat, UO: 
Beg. on the prosea«tioa.ef Goldiaf •. 
Candwen, 160, 190 

— on Hw praaacatiaa af tha Gr e at 
Western Railwav OamiMsy v. Th» 
Inhabitants of Tllehonl; 142. 143 

on the prosecution of Kennedy 

o. AUeyne and Others, 133 
.— on the prosecution of Smith e. The 

Eastern Union Railway Company, 

on the prosecution of Winter v. 

Chilcott, 147 
Reg. r. The Ambe«gate, Nottingham, 

&c. Railway Company, 94, 165 

A'Beckett. 165 

Amos, 142. 165 

Attwood, 280 

Ayre, 94, 171 

. Bassett and Another, 155 

Ms»y Ann Bennett, 135 

Bessell 104 

W. Bills, 75 

Bills and Others, 162 

Blackstone, 165 

Blackwell. 94 

Booth, 147 

Brumby, 261 

Caldecott. 75 

Caw, 142 

Cbarlesworth, 91 

"The Birkenhead, Cheshfare, 

Beg. o. Cross, ItB 

. . Gardaer, 7 

Gariand, 3$. 165 

GsRuti. Pool, Jofcasoo. Stat 

ford, and Claifke, 67 

The GoTetnars andDiractpisaf 

the Poor of the Parish of at. JmmM. 

Wartaaiaitwb 125 

Onnt, 67 

The Great Northern Bailwaf 

CoMMy, «« jMr<( Ward. H7 
The Great Weatem Bmlwiar 

Company, 155 

Griffiths, 155. 165 

HaUett, 136 

HasUm, 142, IS6, 182 

HeUier, 85, 142, 152 

Hewitt and Othen, 3], 75. 103 

HHIs, 02 

Mary Hogan. 192 

HoUoway, 85 

J. T. Inghssnt eaq. •» p ar H 

and Lancashire Railway Cooq^any. 

The Chester and Holyhead 

Railway Company, 171 

The Churchwardens of Bangor, 


The Charchwardens, Gover- 
nors, and Guardians of St. Mary 
Newington, 85, 155, 163 

Clements, 136 

The Corporation of London, 


CotUe and Another, 15 

The Coventry, Nuneaton, Bir- 
mingham, and Leicester Railway 
Company. 160 

Thomas Coward, 71 

Curtis. 40 

Dale, 91 

Davis. 135 

Dawe. 55 

The Dean and Chapter of Ro- 
chester, 62, 73 

Delafosse and Another, 85 

Dunning and Another, 8 

The Eastern Counties Rtulway 

Company, 94 
— — Andrew Fogarty, 10 
Ford, 135 

Symons, 83 

The Inhabitant! of Caldeeoti, 

' TIm InhabitaBta of T)vweaton>. 


IriMMtaatsoTPHeit 3«t4on.91 




The Jodga of tbeCovnty Court 

of Oswestij, acrparh- Baiper fad 

Another, 55 
The Justices of MteioneHiAlM, 


The JusttosB of Middlesex, 83 

—~ The Justices of Newbury, 93, 

142, 183 

The Justices of Rochdale,. 85 

The Justices of Warwidcshire, 

Ttie JnsHoQB of Yarmontli. 85. 


Kaye, 62, 247 

The Lancashire and Yorkshire 

RaOwev Conpmw. 90, 14e, 155. IS& 

Llanelly, 90 

Tha Lowica and Nottfa-Wast-. 

em Bailwsy Compaay.62; 75. 92, 165 
The Mancbestor and Soatb 

Junction, &c. Railway Company, 71 

R. H, Blartin. 67 

Master and Fellows of the Col- 
lege of God's Gift in Dulwich. 93 

The Mayor, &o. of lichfield, 


The Lord Mayor of London, 

rt De Haba, v. Tha Queen of Por- 
tugal, 125 

The Lord Mayor of London. 

re Wadsworth*. The Queen of Spain, 

The Mayor and Council of tha 

Borough of Saltfnrd, 147 
Mills and Two Others (Justices 

of Lancashire), 164 

MonVs Kirby, 165 

Mount Kirby, 85 

Mudge, 212 

Oddy, 136 

— — Ossett, 74 

The Overseers of Leeds, 61, 142 

Pamplin, 190 

Piper, 190 

Thomas Pocock and Others, 91 

The Poor Law Board, 38 

The Poor Law Commissioners, 


William Potter, 136 

Poyser, 135 

The Printer and Publisher of 

the Momiug Advertittr newspaper, 

The Printers and Publishers of 

the Buet* ChrontHe newspaper, 133 
The Printer and Publisher of 

the Morning Herald newspaper, 83, 


— The Printer and Publisher of 
Punch, ex parte the Rev. Peter Dale, 

The Recorder of Derby, 67 

The Recorder of Liverpool, 85 

The Recorder of Manchester, 


Rowland and Others, 170 

Ryan, 192 

St. George's, Bloomsbnry, 92 

— St. James's, Colchester, 84 

St. Mary. Pembroke, 75 

St. Pkncns, 74 

Sale, 165 

Scaife and Another, 152, 143 

Scbleainger, 94, 171 

—^ Sbavington-eum-Gresley, 90 Sheriff of Gaamoigao. 41 

The Sa«th Oenm BOmcr 

The Soutik-Eastom BSdwagr 

» Southampton Oodc Coai' 
pany, 62, 94. 106 

■^ SlHitanandOt]iaa«280 

I Tboasas. 155 

Henry TliompaM. and OOntL 


'-^ Tkt "Wm CommissfensfL IS5 

' The Town Coondl wi4 Bar* 



Welch, 7\ 105 

West, 83 

Owen Williams, 94 

Wilson, 155 

Wilson m* Anothsc, JosScm 

of Kent, 147 
The York, Newcaatia, mi 

Berwidc Railway Comnany, 67, 142.. 

153, 1601. 166 

The York and N«tIt]Itd)Mld 

Railway Cmumv, ItO 
Read v. Legard, 145 

Strang«waya, 218 

Reeves r. Baker, 7v 

Beimer and Another v. Riasrar^ 18 

Richards t. Lewis, 78, 96, lB 

The Soul|i.East«(n Bailnz 

Company. 144, 158, K5 
Richardson r. Pillay, 147 

— and Another r. OaiMaU 48 

Ridgway c. Ridgway, 239 

Lord StaffonI, 5% 80 

Ring V. Jarman, 87 
Ripping t>. HiU, 43 
Risdsle v. Latoor. SO, 77, 96 
Roberts e. Burr, 93 

Whitehurst, 15» 

et Uxor r. Jones. 191 

Robertson r. Graaoing sod Aaeljher. 

Robinson r. Lawrcnce, 312 

Robinson «t Uxor*. Tba Marquis of 
Bristol, 158 

Robson e. Waii«sard, 100, 100 

Bochfort e. Fanaoicolas, 127 

Hoe e. Tha Birkenhead Bailiray Com. 
pany, 203 

The Birkenhead, Lancashire, 

and Cheshire Jonction Railway Com- 
pany, 66, 165 

Manser, 155, 165 

Rogers v. Acaster, 229 

Hooper e. Lottos, 75 

Rosetto V. Gnmey. 41, 79, 144, 242 

Rowe V. Manser, 50 

Carpenter, 43 

Rowley e. Adams. 207 
Rnmbelow e. Whalley, 3 
Russell v. Deny. 171 

The East Anglian Railway 

Company, 298 

Smith, 213 

Walker, 241 

Rutherford v. Parkins, 66 
Ryan v. Shilcock, 160 

Sainton c. Beale, 169 
Salmon e. Dean, 205 
Green, 83 

Salaman v. Cohen, 42, 99 

Samuel, The, 204 

Sanderson v. Cooper, 66 

Savoury r. Brown, 85 

Sayse s. Mason, 160 

Scadding, £. W. plaintiff in error, 

L. Loarant, defendant in error, 223 
Schmalz c. Avery, 27 
Scholefield c. Andrews, 62, 125, 142, 

Scott t. Lord Hastings, 220 

Count de Reicbburg, 96, 158 

Seaman v. Gumey, 66 
Serle and Others c. Waters, 66 
Serrell e. The Derby, Stafford, and 
Worcester Junction Railway Com- 
pany, 78 
Seymour (Lord) v. Morrell, 139 
Shailere. Tailor, 66 
Shaidlow e. Gaze, 196 
Sharp e. Eveleigb, 246 
Sharpe (clerk) e. All of Horbnry, 96 
Shatock t. Garden, 66, 163 
Shelton r. Springett, 144, 169 
Shepherd r. Geo. De la Poer Beres- 
ford. bart. 295 

Marquis of Londondeiiy, 

Sheriock t. FuUager, 62, 75 
Shew V. Odium, 236 
Shrewsbury and Birmingham Railway 

Digitized by 




Company v. The London and Noifli- 
WeMem and Shiopahire Union 
BaOwajr CompaniM. 155 

Shiewibwjr (The) and Chefter RaQ- 
nmy Company e. The ShrewibniT 
and Birmingham Railway Company, 

Shrimpton v. Yoong, 75 

Shropshire Union Junction Railway 
and Canal Company r. Chu. Ed- 
ward Coode. 100 

Sdney c. Lloyd, 169 

Herewrigbt t. Archibald, 40, 165, 264 

Symons v. May, 53 

Bimpaon r. The Earl of Carlisle, 66 

■ Cliapman, 70 
Sims V. Mairyatt, 155, 142 

SIdpper c. Great Western Railway 

Company, 83, 42 
Slocombe v. Lrall, 53, 146 
Smallwood v, Rntter, 118 
Smeatlunan c. Gray, 241 
Smith e. Bell, 96 

■ Cartwright, 258 

The Eastern Union Railway 

Company, 171 
—— Hammond, 42, 100 

Hartley, 78 

Howell, 146, 188 

■ Moore, 100 
Preston, 158 

' Sterens, 130, 145, 146 

■Stewart, 195 

Bnead c. Smith, 289 
Solomon v. Moore, 100 
Sonth-Eastem Railway Company r. 

The Queen, 112 
Soiith Staffordshire Railway Company 

V. HaU,2 
Sonthall e. Rigge, 41, 51, 64 
Spradbery r. GUlam, 99 
Sqnire v. Ford, 119 
Steinbadc e. Penning, 51, 96. 144, 255 
Stanton r. Jones, 161 
Stansfield v. Layton, 20 
Stapleton e. Stapletoo, 15 
Stebbing v. Mottram, 78 
Stainer v. Hesld and Others, 131 
Stephen v. Cook, 275 
Sterens v. The Soath Deron Ridlway 

Company, 46 
Stodci e. Tiie Mayor, Aldermen, and 

Bnigesses of the Boroogh of Hali&z, 

Stockton and Darlington Railway Com- 
pany V. Fox, 42, 146, 203 

Stodhert r. Uynor Valley R^wsy 
Company, 75 

Stokes V. Salomons, 209 

Sogden r. Higgins, 158 

Snnderland Surine Insnranoe Com- 
pany V. Kearney and Another, 62, 

Swansea Dodc Company v.- Lerien, 
146, 159. 257 

Sweeting v. Cowan, 20 


Taplin v. Florence, 63 
Tarleton r. Dddell, 62, 165, 211 
Tarn «. Ingram, 6C 
Thomas e. Robinson, 99 
Thompson t>. Haworth, 156, 168 

Phillips, 169 

Thomhill e. Manning, 208 
Tipping r. Howard, &1 
Tobacco-pipe Makers (Master, &c of) 

r. Loder, 75 
Todd V. The Metropolitan Lire Stock 

and General FroTision ilmportation 

Company, 169 
Todd and Another e. Hill, 85, 142 
Tomline v. Galland (clerk), 99, 159 
Toms V. Taylor, 66, 146 
Tonlmin r. Joynson, 53 
Toxer e. Mashford, 65 
Trowler e. Lockett and Others, 53 
Trimpler r. Lockett, 160 
Tomer e. Wilks and Another, 303 
Winterbotham, 66, 203 

and Another (assignees) r. 

Shepherdson, 66 
and Others (sssignees of Hig- 

ginson and Co. bankrupts) e. The 

Trustees, of the Liverpool Dock 

Company, 212 


Valpy and Another (assignees &e.) v. 
Oakley, 75, 124 

Vanghan v. Harrison, 168 
Vauball-'biidge Company e. Sawyer, 

Vennett V. The Sooth Baatem Raflway 

Company, 165 
Verey and Othen r. Brown, 208 

OF SPAIN. 40, 93 

Wagner v. Imbiie, 82, 212, 231 

Walker e. Elder, 64 

Walstabb r. The Patent FMl Com- 

_Mny, 66, 83. 99, 100 

Walter v. Selfe, 103 

Walton V. Midland Ridlway Company 

Walworth •. Holt and rt The Imperial 
Bank of England, 71 

Wantner (Thomas), tjr fortt, 67 

Warner v. Nubric, 53 

Ward e. Dickin, 57 

Warwick e. Hooper. 228 

Waterfordand Wexford R^way Com- 
pany r. Bensnsan, 100 

Wexford, WicUow, and 

Dublin kailway Company r. W. W, 

&c Railway Company c. 

Franklin, 83 

&C. Railway Company v. 

MaxweU. 160 

Watkins v. The Great Northeni Bail- 
way Comnmy, 74 

Watson e. The Ambergate, Netting* 
ham, &c. Railway Company, 94, 125 

Watts V. Jefferyes, at parit Reeoe, 

Ware, The. 285 

Wayne e. Hanham, 151 

Webb c. The Direct London and 
Portamonth Railway Company, 210 

Weller v. Arnold and Others, 160 

West liondon Railway Companr v. 
Iiondon and North Western Railway 
Company, 31, 41, 64, 65, 144. 15^ 

Wheen t. HtDman. 53 

Whicker e. Hnme, 173 

White r. Garden, 64 

and Another, 41 

■ Smith, 309 

White and Another (assignees) •. Mnl- 

Whitehoase v. Howells, 146, 169 
WhitAeld t. ParAtt, 161 
Wigginton v. Hards, 40 
Wi|£twidc and Others (assignees) «. 

Woodhams (bankrupt) 261 
Wnkisaon •. Fowkes, 293 
Wilks V. Tamer, 216 
Wilks and Anodwr «. Wyatt. 83 
WiUoox V. Manle, 293 
WiDes r. ChUde, 12 
Williams «. The Chester and HolyfaMd 

Railway Company, 159, 212, 269 

Dye, 147 

HoMsworth, 53, 146, 169 

The Lords Commissionas 

of the AdmiialtT, 96, 168, 200 

Marsdale and Others, 66 

Monlden, 94 

•Price, 42, 203 

Wilson r. Bennett, 240 

The Birkenhead, Lancaahnc^ 

and Chester Railway Company, 131 
Fimklin (executor, die.) 79, 

' The York. Newcastle, and 


Berwick RaUway Company, 223 
^raton (exeeator, &c)v.Dnnn, 15S, 165 
Wittington <!(■•. Wittington V. Hands, 

Wood V. Bartley, 50 

Manchester Railway Com- 


• Rowdiffe, 66, 83, 100 

Woodcock n. Pritchard and Another, 16 

Wooder e. Shannon, 62 

Woodford r. Woodford, 250 

Woodhams e. The E^l of liTerpooU 83 

Woods r. Finnis, 82 

Woriall and Wife e. White, 21 

Wonley v. Soath Deroo Railway Cosn- 

pany, 60 
Worthington v. Pakenham, 224 
Wright V. Wilson, 99 

YATES ». EASTWOOD, 66, 189 
Gardner, 66 


Digitized by 



A'BECKETT, REG. v. 165 

Acasto:, Rogers e. 229 

AdanM, Kowley v. 207 

Admiralty. Lords CommlMi<mers of, 

Williams v. 168, 200 
AUejne and Others, Reg. r. 133 

, Coyle 0. 239 

Ambergsta and Nottindiam Railway 

Company, Reg. r. 94, 165 
Ambergate, Nottingham, &c. Rwlway 

Company, Watson v. 94, 125 
Ambergate, Nottingham, Boston, and 

Eastern- Janction Railway Company, 

Grantiiam' Canal Company r. 155, 

Aml;ergate, Nottingham, Boston, and 

Eastern Junction Railway Company, 

Cort and Another v. 62, 179 
Ambergate, &c. RiUlway Company, 

Cott c. 125, 143 
Amor, Hancock r. 229 
Amoa. Reg. r. 142, 165 
Anderson, Valery v. 65 
Andrew, Scholefield t. 62, 125, 140, 

Archibald, SierewriEbt v. 40, 165, 264 
Arnold and Othen, WeUer «. 160 
Attwood, Reg. r. 280 
Aveiy, Schmals v. 27 
AyUng, Hay V. 26 
Ayie, Reg. e. 67, 94 
— , Fklmer ». 142 

BACON, ABBOTT v. 42, 203 
Bsnhaw, Pritchard v. 65, 78, 199 
Bambruge, Gasldll v. 168 
Baker, Bicnres r. 70 

. H&slop v. 189, 212. 257 

, Potter ». 22 

— — , IiO<i V. 81, 66 

and Others, Heslop v. 66 

Ball, Hoaper o. SO 

, Cooper «. 125 

— , Phillips t>. 42 
Banks, Price v. 79 
Banes, Pawsev •. 302 
Bamett, Hoaghton *. 282 
Barilett, Wood t. 50 
Bassett and Another, Reg. v, 155 
Baxendale, Hart v. 66, 203, 222 
Baylis, Btackenzie v. 172 
Beale, Lncas r. 40 

> Sainton r. 169 

, Crofts e. 144, 158, 172, 168 

BeaU, Sladdene.40 
Beasley, Finney v. 94 

Beaafort (Duke of). Fitriek and Others 

Beanmont, Gower v. 142 

Beavan, W., BesTan. J. v. 100, 169 

Beck, Clowes v. 300 

, NoweUv. 83 

Beedey, Pinney v. 75 

BeU, Smith r. 96 

Bending, Parirement v. 146 

Bennett, Mary Ann, Reg. v. 135 

, Willson ». 240 

, Guest ». 42, 189 

Bensusan, Waterford and Wexford 
Railway Company t). 100 

Bentley, Cordy, Palmer, and Lewis v, 

Beresford, Geo. De la Poer, bart.. 
Shepherd r. 295 

Beresford (Lady), Driver v. 307 

Bessell, Reg. r. 104 

Betteley, Uoyd v. 242 

Beran, Cross r. 65 

Biddle, Dancalfe.42 

Biggs, JelTeries e. 162 

Bills and Others, Reg.c. 162 

-— . W. Reg. r. 75 

Bucb, Barker e. 196 

Birkenhead, Lancaster, tad Cheshire 

Junction Rulway Company, Reg. r. 

Birkenhead, lAncashire, and Cheshire 

Janction Railway Company. Roe v. 

Birkenhead, Cheshire, and Lancashire 

Railway Company, Reg. e. 85 
Birkenhead, Lancashire, and Cheshire 

Railway Company, Wilson e. 131 
Bittleston and Others, Fenn and 

Others r. 42 

, Fenn and Another e. 146 

Blackstone, Reg. r. 165 

Blackwell, Reg. e. 94 

Blackwood and Another. Helsham r. 

Blackburn, Llord v. 75. 105 
Boddinirton, Baker r. 83 
Bohn, Mnrray v. 93 
Bolland, BoUand v. 293 
Bolt, Fairington v. 66 
Bond, Emery v. 275 
Bone, Mehew r. 146 
Booth, Reg. V. 147 
Bottruc, Atkinson v. 78 
Botcherley, Bathwick c. 169 
Bowley, Chelsea Waterworks Company 

e. 155, 284 
Bower, Nichols v. 50, 61 
Bowman, Ellis r. 10 
Bown, Barker v. 83 
Boycott. Digbr v. 88 
Boy, Hand v. 78 
Bradley and Evans, Attorney-General 

Bradbury and Another, Attorney- 
General e. 83 

Brett and Little, Electric Telegraph 
Company e. 64 

, Electric Telegr^ih Company r. 


Breese, Owens r. 285 

Bridge, Huskisson v. 230 

Bristol and Exeter Railway Company, 
Parker c. 169, 202 

Bristow, Needhsm e. 169 

Brise, Mathew e. 249 

Brocket, Losh r. 93 

Bromage, Cullenfbrd v. 83. 100 

Brown, Berg r. 142. 165 

, SaTOury b. 85 

, Verey and Others e. 203 

, Philips ». 75 

, Berry v. 130 

Bromley, Reg. v. 261 
Bruyeres, De Gmchy e. 7 
Bryer and Others, Jacobs v. 203 
Bueti CironieU newspaper, Nnters 

and Publishers of, R^. e. 133 
Bockerfield, Man v. 85 
Bndd and Othen, Great Western Rail. 

way Company r. 99 
, Great Western Railway Company 

e. 99, 212 
Boessare, Brotherton v. 83 
Bunney, Grapes e. 130 
Burr, Roberts e. 93 
Barrel! and Another, Davis v. 51, 56 
Burton, Bord r. 62 


Cameron's Coalbrook, &c. Coal Com^ 

pany, Turner e. 130 
Cameron's Coalbrook, &c. Railway 

Company, Halford v. 25 
Cameron Coel Company, Edwards r, 

42. 100, 130 
Campbell, Beldon, the younger, v. 83, 

212, 257 
Capone, Lenaghan «. 83, 203 
Caudwell. Golding v. 160 
Carell, Demain o. 99 
Cawley and Another, Farrell and Ano* 

tberv. 168 

Cartwright, Smith v. 258 
Carlisle (Earl of), Simpson v. 66 
Carman, Nash r. 203 
Carolin, Hewson e. 296 
Carr, Reg. v. 142 
Carpenter, Needbam e. 274 

, Rowe r. 42 

, Lowe r. 203 

Carttar, Pugh v. 94, 107 
Cardeo, SbattorJc v. 66, 160 
Caasavetti and Others, Milnun v. 62 
', Milvun e. 75 

Cashman, Cowles r. 40 

Cattemore, Tatham v. SO, 74, 75 

Cattell, Correll t. 50 

Chamberlayne, Biddalphr.50, 124, 155, 

Chapman, Chapman e. 70 

, Simpson, e. 70 

Chambers, Haigh r. 146 

Charing-cross-bridge Company, Jack- 
son r. 141 

Charlesworth, Reiue. 91 

Chaid, Eodes v. 283 

Challis and Another, Evers *. 4 
, Doe V. 142 

Chelsea Water-works, Goremor, &c. 
of, Bowley e. 1C5 

Chester Railway Company, Williams T. 

Chester and Holyhead Railway Com- 
pany, Williams v. 159, 269 

Chester and Holyhead Railway Com* 
pany, Reg. r. 171 

Childe. WiUes v. 12 

Chilcott, Reg. v. 147 

Churchwardens, Goremors, and Guar- 
dians of Poor of St. Mary, Newing- 
ton, Reg. V. 85 

Churchwardens of Bangor, Reg. v. 190 

Chordi, Delarae r. 102 

Clarke and Uxor, Cherronet P. 146 

aarke. Dew. e. 229, 249 

Clarke. Lisley v. 146 

Clark, Hughes e. 64 

Clark, Johnson v. 75 

Ckyton, ElUottv. 26 

Clegg, Brown e. 122 

Clements (LordViscoant), Little s. 8 

-, Reg. ». 136 

Clerk, Morrice c. 62 

Clive, Booth e. 52. 62, 64 

Clif^ Beauderc (Lady), e. 62 

Clntton, Newman e. 294 

Crock, Stephen v. 275 

Cobb, Mitchell and Uxor v. 25 

Cohen, Salaman v. 42, 99 

Colegrave, Pretyman e. SO, 75 

Coleman. Alien e. 165 

Collins, Drew and Othen e. 156 

, Drew V. 160 

, Hobbey r. 2 

Collier, Brown r. 148 
Collyer, Brown e. 190 
Commerell, Beauderk r. 165 
Commissioneis of Inland Rereaue, 

Buckingham (Duke oO f . 83 
Commissioners of Inland Revenue, 

Chandos (Marquis of) r. 100, 128 
Cordwell, Reg. c. 190 
Connell, M'Intyre v. 197 
Coode, Shropshire Union Janction 

Railway Company v. 100 
Cookfield Union (Guardians of), Clarke 

and Another v. 85 
Cooper, Sanderson e. 66 

. Ellard v. 67 

, Rackham e. 282 

Cosby, Bacon v. 239 

Cottle and Another, Beg. r. 15 

Conrtown (Earl oO end Others, 

Galini r. 160 
Courtown (Earl of), Logan c. 306 
Coventry, Nuneaton, Birmingham, and 

Leicester Railway Company, R^. e. 

Coventry, Cook e. 144 
Cowan, Sweeting e. 20 
Coward, Thomas, Reg. v. 71 
Cox, Green v. 66 

. Paul ». 40 

Craig, Jackson v. 207 
Ciemonini, Manby e. 212 
Crofts, Clay e. 212,23] 
Cross, Besante. 95 
" .». 165' 

Crowley, Bland v. 83, 267 
Cnne^, Jones e. 171 
Cnnnmgham, Bower v. 59 
, Price r. 79 

Crook, Jolly e. 83 

Cooke, Itlingworth v. 220 

Cork and Bandon Railway Company, 

Hare and Others v. 21 
Corporation of London, Reg. «. 142 
Coritoration of Mandieater, Hyde e.288 

Conlifie, Cooke v. 143 
Cortis, Reg. «. 40 

DALE, ABDY v. 65 

. Abley v. 62. 78, 168 

, Reg. e. 91 

Dalbiac, W. W. Waterford, Wexford, 
Wicklow, and Dnblin Railway Com- 
pany e. SB 

DMhwood,Pby«r «. SO, 125 

Daabner, Phipps e. 232 

Davies, Dixie r. 66, 203 

, Davies •. 104 

— — and Others, Jones v. 66, 146 

Davis, Jones *. 130, 203 

, Reg. ». 135 

Daw, Holt •.94, 75,198 

Dawber, Foster v. 203, 310 

, Fofster (executor of Josh. 

Clarke), v. 53 m 

Dawe, R«r. e. 55 * 

Dawson, Colhoome and Others e. 125 

Dean, Salmon v. 205 

and Chapter of Rochester, Reg. «. 


De Borgh, Lock v. 302 

Delafosae and Another, Beg. v. 85 

Dember, Foster v, 203 

Dennistoon, Ralli e. 100, 127 

Deny, Russel v. 171 

Derby, Stafford, and Worcester Junc- 
tion Railway Company, Serrell v. 7S 

De Richeboorg, Scott e. 96, 158 

DidcsontAwde c. 53, 189 

Dickin, Ward «. 57 

Die, Williams V. 148 

Dimes, Grand Junction Canal Com- 
panv c. 305 

Dimsoale, Fishmongers' Company e. 7 

Direct London and Portsmouth Rail- 
way ComMuy, Webb v. 210 

Dixon and Others, Coglan v. 155 

, Nidiolls >. 160 

Dominie, Belle. 41 

Dunn, Wilton e. 155, 165 

Dunning and Another, Reg. v. 8 

EASON, HENDERSON e. 112, 169 

Eastwood, HaUiwell r. 96 

Eastern Counties Railway Company, 

Hawkes v. 301 
East Anglian Railway Company, Rns- 

Eastern Union Rwlway Company, Reg. 

V. 148 
Eastern Counties Railway Company, 

Reg. r. 94 
Eastern Counties Railway Company, 

East Anglian Railway Company v. 

127. 168, 169 
Eastwood, Yates v. 66, 189 
Eckerley, Mather v. 66 

Digitized by 



Electric Telefnph Coni|iuiyi Goddard 

r. 160 
Elder, Walker v. 64 
Elliott, ChvlwDod v. 7^ 143 
Ellit, Ufooev. a03 
EtDCry, Derereux v. 83 
Ergood, Onhun r. 127 
Erwood,Gimham aad Othen (iiilgneei 

ofFiiir<nd)r. 6& 
Eran*, Philps «. 87 

. Mairhaad v. 65 

ETcleigh, Sharp r. 246 
Bxall, Cnweimaiic, &3 
Brre, Palmer r. 40. 221, 165 

OTHERS «. SI, 96, 144, 255 

Fen wick. Easterly e. 138 

Ferrsad, Moia aod Another v, 183 

, HopkinaoD and Othen ». 183 

Ftnnii, Woods*. 82 

Fitxgerald, Attomor-Gmenl «. 296 

FUtteri. Oxbjr e. 62 

Flear, Hare e. 184 

Fletdier. GiUe. 40, M 

Floekton and Odien. HaU aad Othen 

Florence, TipUn v. 63 

Fooki, Gill V. 94 

— — , Beandero r. 94, Wi M5 ■ 

Ford, Re|. v. 135 

——, Squire V. 119 

Fogartf (Andrew), Res. e. M 

FowkM, Wilkiaaon v. 293 

Fowler. Gell e. 160, 171 

Fox. Lean e. 99 

Fox, Stockton and DaAnftmt Biil- 
wa; Company r. 42^ 146, HS 

France, Llord v. 75 

Fnnklin, Wilson r. 79, 187 

Franchon, Clements e. 62 

Fraser, Bank of AoatnBae. 83 

Frendi, Baden r. 51, 77, 78 

FHcker and Another, Pottnw and An- 
other r. 81 

, Pottow r. 66 

Frith, Cnfton v. 137 

Frost, Benson v. 14S 

Frr, Fry ». 22 

FoUsrer, Sherlodt e. 75 

FullakcT. oherlodc v. OS 


, Tomline e. 99, 159 

GalTin, Hale t. 65, 79 
Garden, White v. 64 

> and Anotiier, White r. 41 

Gardner, Ref . e. 7 

, Partridge «. 2M 

, Yates B. 66 

Garland, Reg. v. 39, 165 

Garrett, t^x>l, Johnson, StURndf and 

Clarkr, Rrg . r. 67 
Garth, Bradnejr r. 78 
Gatdce, East and West India Doclcs 

and Birmingham Junction Raflway 

Company e. 85 
George, Beareroft v. 65, 99 

, ETans r. 40, 155 

Gilbert. Ricfasidson and AnotiMr r. 48 
GiUam, Spiadbery v. 99 
Goocb, Goocfa V. 274 
Goodacre, Arding a. 64, 65, US 
GoodaU, Hassey p. 181. 159 
GoTemora and Gaardians of St. Mary, 

Npwington, Re^ e. 163, 155 
Goremon and Dneeton of Poor of (bm 

Parish of St. James's.. Westminstar. 

Reg. e. 125 
Graham, Newman v. 144 
Grant. Rea. r. 67 
Gray and Othen. Friar e. 233 

, Smeatliam v. 241 

Great Western RaQway Company, 

Skippers. 42,83 
Groat Northern Rribray Company, 

Haat e. 54, 63 
Great Northern 

Abraham c. 16 
Great Northern 

Rsflway Company. 

Railw^ C o mp a n y. 

Attorney-General e. 23 
Great Northern Railway ConpaBy, 

I«wrenoe«. 39 
Great Northern Railway Company, 

Reg. r. 147 
Great Northern 

WatUns V. 74 
Great Wsstem 

Reg. r. 156 
Great Weatem 

irintash V. 219 
Green, Cockbam v, 98 

, Salmon ». 83 

, Lane e. 1 
Greening and AnoHier, Robertson v. 04 
Gregory, Maole «. 99 

BaUwi^ Company, 
Railway Company, 
Railway Company, 

Grey, Cobbett r. 100 

and Another, Cobbett v. 99 

GniBths, Reg. v. 155. 165 

Griffin and Another. Broted e. 66, 99 

Orore. Morse e. 168 

Gaae, Shardlow e. 196 

Gntrdians of the Poor of Hnddet*- 

field Union. Blakeley e. 66. 100 
Gaardians of Cnekfield Uniao, Sussex, 

CIsrke snd Another c. 85 
Onraey, Rosetto r. 41, 79. 144, 242 

, Seaman e. 66 

Ooidiard, Anderson e. 293 


Hall. Halle. 11 

, Chichester (Eari of) e. 62 

and Another, Chiefaaster (EarL 

of) r. 121 
, South Staffordshire RaQway 

Company «. 2 

. Uamber v. 254 

Hallett, Reg. «. 136 

Hamer, Hamer r. 368 

Ibmmond, Smith v. 42. 100 

Rannay. Hurst e. 133. 165 

Hanbam, Wayne p. 151 

Haimer, Brunswick (Dnke ti) *. Hi, 

Hards, Wittington dem. Wittington v. 


> Wiggipgton t>. 40 

Harding and Another, Neat «, 80 
Harrison, Cunliffe a. 66. 189 

, Jones e. 41 

', Vangban v. 1681 

Harris. Gore e. 23 
Hartley. Smith v. 78 
Haslam, Reg. «. 142. 199, 182 
Hastings (Lord), Scott v. 220 
Haworth, Thompson v. IX 
Hayca, Heran e. 168 
Hayley, Hint e. S3 

and Another, Vint v. 88 

Heald and Othen, Staioer e. 131 
Heathwaite, Urianee. 127 
', Levien *. 156 

Hemming and Othen, Psnay «. 89 
Henhall, Columbine v. 66 
Hendry, Bartingale e. 64 
Hemaman. Aotaman and Another s. 

Hewitt. Reg. e. 75 

and Otben, Reg. v. 31, 105 

Hewaon, Bartholomew t. 66 
Hide, Mosley r. 106 
Higgins, Pbfllips v. 85 
-* Sagden a. 158 

Hills, Reg. r. 62 
Hill. Ripping v. 43 

.Todd and Another e. 85 

. Todd V. 142 

Habday, Lansmeid r. 212 
Hodgson. Mdalien r. 37 

-, Cridlandv. 66 

Hodgkinson, Harding e. 66. 83, 97 
Uogan (Mary), Rag. e. 192 
Holdswotth, WilUams e. 53, 146 
Uoldsworth, Williams and Othen ». 

Hollands and Wlfc, Nere snd Another 

HblUday, Longmeid and Wib e. 243 
, Longmeid a. 83 

Holloway, Reg. s. Ki 
Holmes. Stanton v. 161 
Holt, Walworth e. 71 
Hook, Beanclerk t>. 147 
Hooker, Middienms a. 66, 203 
Hooper and Another, Lane and Another 

, Warwick r. 228 

Hoppe, Morrison r. 1 

Hope, Mount v. 79, 157. 168 

ttowardi. Thompsoa r. 168 

Howell, Smhh v. 146. 188 

Howard, llppiiw v. 231 

Howelb, Whitebonse v. 146, 1C9 

Howell, Plus r. 99 

Hudson, Oatea ». 65 

Hughes, Jones e. 5 

HuU. HnU V. 235 

Hame, Whicker*. 173 

IfaimfreT, Griffin r. 66, 208 

Hiint, Blamiere *. 93 

Hunt, Hutchinson p. 168 

Hnsband and Another, Bvennan v. SO 

Hossey, Hanbnry r. 238 

Hkitchins, Hntchins r. 196 

llyde. Modey r. 50, 94 

IMBRIE, WAGNER v. 81% 231 
Ittgfaam, Reg. a. 83 
Ingram, Tame. 66 

Inhabitants of Tnrweston, Reg. r. 171 

Monntkirby, Reg. r.85 

Tileburst, Reg. r. 143 

Caldeoott, Reg. ». 93 

Priest Satton,Reg.e. 91 

Maurice. Reg. e.62 

Irrin, SilTcrlock c. 20, 41 
Isaacs and Others. Reg. v. 43 
Isemonger, Gnbam and Another r. 130 

Jarman. Ring r. 87 
Jefferys. Boosey r. 110 
JieKfys^ Watts r. 281 
Jtmiaik, Meodt v. 41 
Jenkinson. Callow e. 146 
Johnson, Westbrook e. 75 
Jones. Bobetts and Uxor. v. 130 

. BUir r. 42, 99, 146 

. Claa*e e. 108, 288 

, AUen s. 144 


. Manh e. 41 

, Morris *. 100 

, Darid r. M)6 

, Darid and Othen e. 94 

Joynaon, Toalmin v. 53 

Joyoe, Goodwin e. 64 

Ja4ieaf Coaoty Cost e( Oswestry, 

Reg. e. 55 
Justices of Warwididiirs. Reg. *. 165^ 


Kefrbarry. Reg. a. 93, 142. 


■ Yarmouth, Reg. v. 85. 169 

■ MerionethsMie, Reg. s. 85 

■ Middlesex, Reg. v. 83 
■Ro«didate, R(«.».e9 

KAYE, REG. v. 62. 247 

Krams. Durell e. 66. 100 

Keamer and Another, Sundsriand Ma- 
rine Insurance Company r. 02 

-, Sunderland Marin* Insnr- 

anoe Company, e. 75 

Keller and Othen, Murphy v. 297 

KsUy, Burt r. 146 

Kenyoa (Lord), O'Brien e. 93. 187 

Kenhaw and Othors, Howard v. 83 
Howard r. 100 

Kerriaon, Ambrose e, 41 

King, Walmsley and AnotiMr *. 66 

, Pittman v. 283 

— , Hellyer v. 66 
-- — , Doe V. 88 

, Backhurst e. 175 

Klmting, Bochannan e. 244 
Knaggs, Knaggs e. 170 



93. 142. 155. 165 
Langdale (Lord). AsMoa «. ITS 
Lash. Baxter r. 89 
Untonr. Ridsdala *. SO, 77, 96 
Laurent, Dachement e. 160 
Lawson. Florence v. 260 
Lawrf nee, Robinson e. 212 
Layton, Stansfield p. 20 
Leach. Laidlaw e. 83 
I^eds and Bradford Railway Com pan y. 

Hudson *. 30 
Legard. Read p. 145 
Lenthsll, Bedson p. 66, 99 
Lerieo, Swansea Oodc Company «. 

159, 256 
I^wis, Elliott V. 62 

. Richards «. 52, 78, 96, 126 

Levland, Tancred and Another P. 53 

UddeU, TarMon e. 62, 165. 211 

Limond, Forbes p. 218 

Ijngham, Alexander v. 02 

lister, Bossil p. 263 

Little, Price v. 51, 79 

Littlewood, James e. 62 

liringstone, Bryan p. 78 

Liverpool Dock Company (TVastees 

of). Turner and Othen p. 212 
Liverpool (Earl of), Woodhama.p. 83 
Uanelly. Reg. p. 90 
Lloyd, Sidney p. 169 

, FUghtP. 146 

Uynor Valley Raflway Company, 

Stodbert p. 75 
Loader, Allen e. 241 
lodcett and Another, Trawler p. 53 

, Tnimpler p. 106 

Loder, Master, ttc of Tobacco Pipe 

Loftus, Roper p. 75 
liomas. Freeman p. 292 
LonicUnds, Gillies p. 250 
Londonderry (Marqi^ of) Sbephnd p. 

London and North-Westem Railway 

Company, West London Railsny 

Company p. 31, 41, 64, 65, 144, 156> 

London and North-Westem Rsflwny 

Company and Shropshire Unioa 

Railway Company, Shrewsbory and 

Binnioffham Railway Company, *. 

London and North-Westem Railway 

Company. Reg. p. 62. 92 
London and North-Westera Railway 

Company, Pamragna e. 41 
London and North-Westem BaQwny 

Company, CoUett r. 75, 123 
htmioa and North-Westem Railway 

Company, Elam r. 40, 50 
London Assurance Oompany, Moo- 

toya *. 82. 83 
Loadon Dock Company. Attorney- 

General p. 66, 169 
Lords Commisdonen of Admiralty, 

Williams r. 90, 168. 200 
Lyall, Slooombe p.53. 146 


loagec, UUjan p. 293 

MaBn and Another, Carae aad Aao- 

tberp. 66 
Malina. Carae t. 100, 203 
Maleolmsan, Mslcolmson p. 44 
Maltby. Thompson r. 96 
Manser, Leachman e. 52, 143 

, Rjec^SO, 155, 165 

Manning, ^MimaiH p. 208 
'. Bond p. 62 

Maneheater Railway Company. Wood 

p. 66 
Man<4ieater and South JuuciiOB. dtc; 

Railway Company, Reg. r. 71 
Manchester, Sheffidd, and Liuu tB l - 

shire Railiray Company, Onnt 

Northern Railway Company e. 146 
Manchester. Corporation of. Hjda «i 

Msrker. Kekewick p. 198 

. Mariier e. 176 

Marryatt, Simms and Another r. IS 

' . Sims p. 142 

Marsdale and Odters. WDHams a. 46 
Manhfbrd. Toxer *. 65 
Martin, R. H., Reg. p. 67 
Mason, Aldis p. 158, 166 

, Sayse p. 160 

^, Johns P. 118 

, Graham and Othen «. 130. 

Massey, Doe p. 155 

, Baddeiey p. 6S, 165, SEl 

Master and Fellows of the CoOeM of 

God's Gift. Dulwich, Reg. p. » 
Maule, Willcox p. 93 
Maxwell, WateHbrd, Wexfad. WidN 

low, and Dublin Railway Coaipany 

t. 160 
May, Symons r. 53, 160 
Mayor, Aldermen, and l^n^wsaw of 

Borough of Haliiaz, Stoeka and 

Othenp. 83,146, 189 

' " , &c of Southmolton, Attoraey- 

General p. 274 

, Aldermen, and ovrgeaaes of 

the Boron^ of Chester, HtR v. 83 
and Council of die Borog gh of 

Saltford, Reg. r. 147 

, &c of Lichfield, Reg. «. 180 

M'Donald, Johnson r. 142 

Melladew, Boelen p. 96 

Mellenh, Coleman p. 45 

Michael, Ashbutnham (.Eari of) a. 90^ 

Midland Railway Company, Walton p. 

Miller, Caudwell r. 52 
, Matlin p. 96 

Mills and Othen, Reg. p. 164 
Moore, Solomon p. 100 
, Smith V. 100 

Morison, Moat p. 19fl 
Morgan, Morgaa r. 114, 302 
Moriton, North American Colonial 

Association of Ireland p. 271 
Homing Adnrliur Newspaper, 

Printer and Publisher of, Reg. r. 

Morning HerM Newspaper, Printer 

and Publisher of, Reg. r. 83, 85, 93 
Monk's Kirby, Rq{. p. Iffi 
Monmouthshire Railway and CmmI 

Company, Booth p. 154 
Morrell, Seymour (Lord) p. 139 
Moss, Newry, Warrenpomt, and Rons* 

treror Railway Company «. 206 
Mottram, Stebhing p. 78 
', Atkinson p. 157 

Monlden, Williams t. 94 
Midland Railway C o m pan y , Walton *. 

Digitized by 




Modge, Km. r. 212 

MolMt, White and Another v. 146 

IfiDiogtoD, Aikew v. 220 

Mnrdock. On and Baffot (aangnMi 

Moifar< liOnd v. 248 
XupoTe, Fukinion «. 64 
Myen, DaTia «. 304 


Nuh, Morgan*. 99 
Neal. Beer v. 77 
Nehemias, Benitisan e. 292 
NettWdd, Beoyon c. 149 
Newnuo, Graham t. 96 | 

, Graham and Another (aidg- 1 

I of_8ander.) v. 66, 169 RACKHAM, BLOWERS e. 94, 125 

Printen and PuUisbersof Bueii Ckro- 
iiic/e Newspaper, Rec. e. 133 

Punek. Printer and Pablitha of, Reg. 

QUEEN, HOLLOWAY r. 85, 155. 

Qoaen of Spdn, Wordaworth v. 40. 


, Laver r. 169 

, Baatii.Baitafi Sulwar Oen^ 

pany V, 112 
— — of Portngal, Maorioe de Haber 

B. 40, 125 
Qnin (Michael, Jan.), ICdland Gnat 

Western Railway Company v. 248 

Notea, Flower «.I6» 

Noidiab. Ambeicite Rail— r Cmm- 

paay •. 146 
NoRii, BanMatere. 130.2(0,233 
North SaffordiUrs RaUway Goapany, 

Boatockr, 290 
North ataSMdabire Railway Com^ny, 

Aimfteadc. 59 
North Smabrdahive RaBway CwapMiy, 

GUaerr. 73 
North -Weateni Railwar Cwnpawy, 

Beg. a. 75, 165 


r. 75, 124 
Oddr. Rec. v. 136 
Odlmn, Shew «. 296 
OriMBd, Blair v. 75 
Oibone, Bailey v. 50 
OiMtt. Reg. e. 74 
Oraaacr ol Leeds, Beg. a. CI, MS 
Owen, Ferdval t. 83 

, Embry v. 66. 79 

Owaoa, Bnaaev.66,97 

PAGE. PAGE r. 123 
Fdner, Shawcioft r. 75, 262 

ttmrUa, R<v.r. 190 

Paaanioolas. Rodtfost v. 127 

. Cfaappril V. 160 

Patftt. WbitfieM v. 161 


PtiUU Femande* v. 53, 180 

PuUa*. Rqtfaerfoid r. 66 

Pariar. Fniat a. 146 

PuUaaoa and WroA, Batt ft. 51, 79. 

■ s Amatrong ». iO* 

Pwhiliiai. Wortttegton ». 234 

PkiUuaaera of St. Maiy'a. WHbsdMi. 
Kaapp and Othara v. 191 

Fuidi Clerks' Company, Plaatann' 
Cea^aay •. 246 

Patnoa, HeweUr. 158, 160 

Fktnt Fuel Company, WUatab a. 6C, 

Fkyten, AmbargatekNottiDa^BB, Boa- 
ton, and Eutem Junetioa BaUwar 
Ooaapany v. 146 

PeaaaU, ColombiDa «. 96 

PeoiT, Penny i\ 120 

Peaood. Peacock r. 66 

Phataa, If onria c. 169 

Philhps, Tbompsoo e. 169 

, Bamett r. 202 

FSUay, Richardson r. 147 

Pinoomb. Matthew* r. 300 ■ 

Pinniger, Gandry r.217 

Pinder. Fennel! *. 148 

Piptr, Bag. «. 190 

Piatt, Coe V. 66, 189 

hmAani Otbm. Hellk«a a. 160 

- '■ 't Thonaa^ aad Othaif. Bas. *. 

PooaJLaw Board, Reg. ic48 
■' I ' Coaimiariraiasa. Bea. «. 165 
Potte (WaiiaB), Reg. *. 136 
PoyMr. Rag. r. 135 
PraetSB, Smith c. 158 
Priea. Ha^oa r. 169 
— , Wi^ma e. 42, 2Qa 
Ptiahaid. Cos e. 67 

, Lodge r. 263 

Pritohard aad Another, Woadcodc r. 

Prialir and FabUsher of Ptmek, Bag. 


RandaU, Mountcbaahal (Bad of) a. 

Ramsey, Hoare «. 57, 96 
Rankin, M'Calmont and Othaia e. 64 
Rawson, Law v. 66, 189 
Ray, Cattell b. 96 
Bebbeck and TTife, Banks and Aa- 

other V. 170 
Btbbick. Banks and Another e. 16* 
Baetor, Vestrymen, Ac. of St Jamei^s, 

Westminster, Clareadoa (Eatl of) 

and Others r. 75 
Recorder of Lirerpool, Reg. •■ 85 
Recorder af Darby, Reg. b. 67 
Reoordw of Maodieater, Reg. e. 85, 

170 . 

Reynolds. Powell e. IS 
Biduirds. Palmer v. ISO 
Riehardson aad O&ar*. Fillap aad 

Another «. 43, 74 
RldKtt. Lndi and Others n, 40 
Ridgwar* Riditway v. 230 
Rifgo, SoatbaU «. 41. 51. 64 
Riley, Dews v. 65. 127. 169 
RingroTe, Raimer and Another *. 16 
Roberts. Hudson r. 48, 146, 156 
. Ogilby «. 168 

Smith, Bond*. 52 

, Howe e. 99 

, Hopper e. 96 

, Foley r. 273 

, O'Reilly r. 280 

. Snead *. 289 

. Bonlger t. 247 

. Rnsaell ». 213 

, White t>. 309 

Sober, Kemp r. 117 

BsioBions. Stokea e. 919 

Soalh Deroa Railway Conpiaty. Ba» 

r. 142 
Sooth Devon Railway Company, Ste- 
vens V, 46 
Sonth Devon RaUway Company, Wors- 

ley e. 60 
Senthampton Dock Company, Reg. b. 

68.94. UM 
SflMth-Waatran Railway Coapaay. Bog. 

B. 169 
Sonth-Eastera Ratway Campaay.Caa- 

naar. 160 
Sooth-Eastem BaUway Coaspaay, Van- 
net*. 165 
Sonth -Eastera Railway Campaay, 

Riehardsoa v. 165 
South - Eastern Railway Comaaay. 

Riohwds B. 144, ISB 
Speddiag, Lathaaa b. 94, 141 
Speddy, Latham B. SO 
Spode, Beeley v. 51 

, Hill B. 144, 16S 

Springett, Skelton *. 144, 160 
Seoira, Frew b. 41, 95 
Staflbrd (Lord), Ridgway 53, 80 
Stant. Minn v. 290 
Stapleton, Stapletn s. 15 
Sterens, Atkinson ». 160 
-. Uttarmasa *. 115 

UezzeU and Others. Reg. b. 136 


Vardon, Habenhon *. 196 
Vaaeher. Newton e. 66. 82. 189 
Vioent.Zalnetav. 217 
Vivian. Gray «. 146 
Vonroaen, Olaoder b. 66 

> Rosaell b. 241 

~, DeeaonB. 96 

Robiaaoa, Htf ik 169 
> LnddeU b. 61 

— . . Thomaa ». 90 

RobsoB. Gethiag*. 94 

RocMale Canal CompiBy, King v. 

Roche, Bcaigamin v. 66 
Roe, MackcBxie e. 66 
-— , Bray *. 66, 99 
— ^.Twhung e.U8 
— kBoltaa*. 66 
— . Qaialan s. 51 
Roper, Dizna e. 96 
Rowdifle, Wood a. 66, 83, 100 
Rowlands and Othets. R««. a. 171 
Rnfford and Others, Clay aad Olfaewa. 

Rasham, Newman b. SO. 125 
Rotter, Smallwaod ». U8 
Rntsen, Martin v. 50 
Ryan, Reg. «. 192 

SALE, REG. «. 147, 165 

Salmei^ Catta *. 87 

Sawyer. Vaaxhall Bridge Oompaay b. 

66k 144 
Safler. Oladstoa«v. <i 
Baaife and Another, Rcc. *. 143 
Sehleaiager. Reg. b. 171 
Saamaa. Crosa n. 77 
Self«.W^tarB. 103 
ShaonOB). Woodsr b, 62 
Shavinfton-cnm-Gresley, Reg. b. 90 
Shaw.PoweU*. I5S 
Sbeldhan. Bernard v. 75 
Sheperdson, Turner and Aaother r. 66 
Sheriff afGhmorgan. Reg. ». 41 
Sbilcock. Ryan *. 160 
Sbrewsbory and Birmingliam Railway 

Company. Sfarewsbary and Chaster 

Railway Company r. 275 
Sims, Price b. 169 
SUdcaere, Beaa e. 169 
Sloper, Waldron r. IS 
Small, Grant B. 196 
Smith. FaphaBB.53 

, Lambert *. 144, U8^ 167 

. Bnohaaan b. 65 

1 Gabriel a. 61 

1 England aad OOan*. 96, 99 

Walsby, Keigbtley *. 83 
Ward, Diekin b. 57 
Warden. Poole b. 169. 203 
Wame, Atkinson b. 62 
Waring, Horsfall b. 66 

. Davies *. 66 

Waton, Sari* aad Others bl 66. 80 
Waiaon. Hicks v. 169 

, Getbinge.l6S 

Weaver and Others, Hellabr «• 271 
Weitnard. Bobson r. 100 
Weleh,Be(.B. 75. 106 
West, Rw. B. 83 



:, Sadleir b. 224 

I a. 78, 79. 

-, Smith *. 130. 145 

Steseaaoaand Waad. Newnham «. S 
, Doagba b. 318 

Stehan, laaibart e. 

Stewaat. Smith *. 195 

Stokea, Oanctt *. 85 

Straagewayv Read a. 218 

St. Jaasea's, Coldieatsr. Bag. e. 83 

St. Mary, Pembroke. R(«. «. 76 

St. Fancna, Reg. *. 74 

St. Gaoiae'a, BloMBsbotri Bag. «. 92 

Sanderiand Marine Conipany, Kear- 
ney aad Aaodier e. 8 

Swansea Dock Company, Li***n b. 200 

Swansea Waterworiis Compaaiy, Baton 
B. 50. 75. 154 


Tailor, Shailer b. 66 

Tavlor, Thorns b. 66, 146 

Tebbutt, Derbyshire, StaffordsUra, aad 

Woroestenhire Railvar Coatiiaiiy *. 

TBehnrst, Reg. *. 142 
TBI, White*. 203 
TUIinghorst. Omauaoad ». 90 
Tithe Commisriooers, Reg. *. ISS 
Toller. Blackford «. 231 
Tepp, Ellen «. 42, 52 
Tewan, Harwy «. 66, 160' 
Town Council of Tynemoutb, Reg. b. 

Town Council and Bnrgeases of Brid> 

port, Rett. B. 85 
Thames Haven, Dock, and Railway 

Company, Potta b. 114 
Thimbleby, Key r. 83, 243 
Thompson, Fklk b. 99 

^.Leslie*. 277 

— — — (Henry) and Others, Reg. t. 

Thomas, Reg. b. 155 

, Davies b. 66, 203 

Thirlwall, Randal and Another B. 144 
Tregellas. Griffith b. 189 
Tregear, Profert and Wife b. 51, 63 
Trustees of the Uverpool Dock Com- 
pany. Turner and Others b. 212 
Turner, Quennell b. 101 


. Mrthold B. 268 

Twendale, Blackburn b. 83 

Unwin. Kirk b. 83. 146, 203 

Whitbread and Others, Ja 

White, Armistead b. 155 

, Hewett r. 66 

. Worrall and Wife b. 21 

, Jeakes and Another e. 130 

. Jiaktm B. 203 

. Gripper and Others b. 51 

Whitmore, Morgan e. ISO 

Whitebnrst. Roberts b. 158 

Whittle. Fry v. 128 

Wider. Geralopulo b. 17 

Wilde. Araaiataad b. 62 

Wilkins, NewhaU b. 20 

Wilka and Another, Taiaer *. 306 

Williamson and Anothar, Geadie* v. 

Williams (Owaa), Rag. B. 94 
Willis, Dyson b. 40 
WiUis. Joaes b. 68, 75 
Wilson, Wright r. 99 

and Another, Reg. *. 147 

and Otbera, Glynn and Othaia 

*. 160 

, Reg. ». 155 

. Pea»*.83.99. 160. Ut^aU 

Watoa, JohaMm *. 96, 187 
Wingaard, Robson b. 160 
Winter. Micklethwait *. 146, 106 
Wiataabotiian. Tnnier *. 66, 813 
Wishlade. Carwardin* b. 251 
Wittoomb, Padwidc b. 132 
Wood, Hardley b. 283 

, Adcock B. 169, 203 

Woodcock. Price e. 66, 83, 203 
Woodford, Woodford b. 250 
Woodhaa*. Whitwidc and OOMi *. 

Woodham, Wright *. 293 
Woodisaa. Addyssaaa. 140 
WoodrolTe. Peoaon «. 79 
Wray, Hunt b. 212 
Wright aad Others. Bstob b. 860 
— — , Forasaa *. 57, 96 
Wyatt, Wilk and Another b. 83 


York and North Midland RaBway 

Company. Reg. b. 160 
York, Newcastle, aad Berwick Ba|. 

way Coaspaar. Wilson *. 823 
York, Neweaatle, aad Barwiek Baflaay 

Campaay, Batrleaa *. 83 
York, Neweaatle. aad Leede BaSway 

Compaay, Marshall b. 144 
York, Newcastle, and Berwidc BriU 

way Company, Reg. b. 67, 148. 160, 

York and N ewc as t l e Railway Com- 
pany, Marshall ■>. 168 
York. Newcastle, and Berwidc RaB- 

way Company, Marshall b. 304 
Young, Sbnmpton b. 75 

, Grove b. 37 
. Long ». 65, 78, 83, 85, 99^ 130^ 


Digitized by 



when receivable in eridenee, 57; bow 
residiiary legatee to proceed for, 

waiver of treapaas, 80 
Action, firm qf— 

tat overplus of distren, 189 
AccumHlatiotu — 
disposition of under TheUiuaon'a Act, 
Adminittratort — 

See Exteutort and Adminittratort 
Adminittralion — 
joint, 259 ; of will of wife of coa- 
Ticted felon, 260 
Affidavit — 

form of, in saggestion, 98, 128 

See Principal taut Agent 
what is, 172 
Amendment — 

of plea of not guilty by atatate, 56 
Animatt — 
liability of owner of a boll for da- 
mage by, 158 
Annuity — 

constmction of gift of, 22 
Appointment — 
power of, 138 ; wbat a valid ooder • 
power, 302 
Apportionment — 

oif renta under a devise, 302 
Apprentice — 
may leave service for abandonment 
«f master of one of three trades, 
52; dismissal of, 81; settlement 
of. 92 
Arbitration — 
mward, 160; application to set aside 
mwaid when to be made, 297 

marshalling of, 67 

of a lease with covenants, 188 
Attignment — 
for beotfit of crediton, ezecntioii of, 
Atntrance, Life — 
trust to keep op policies of, not with- 
in Thellusson's Act, 263 
Attorney and Solicitor — 
privi^ge of, 7 ; rights of to produc- 
tion of papers on taxation, 21 ; bill 
of, 42; overcharges by, 45; forged 
writ of summons, 75 ; purchase of 
dient's property, 87 ; Buber's case, 
142 ; taxation of bill of costs of, 
149 ; may intanere for inbnt, 176 ; 
delivery of aigned bill to provisional 
committeeman, 232; liability of 
for vrrongful commitment, 244; 
fees of in prosecutions, 260 ; evi- 
dence of as to warrant of sale by 
clients disallowed, 263; solicitor 
•od agent, taxation of bill of, 273 ; 
•n insolvent client not responrible 
for misrepresentations by, 287; 
IRivileged communication, 288 
Auctioneer — 

authority of, 63 
Award — 
payment of money under, 184 


fiaudrient preference, 5 ; ri^ht of cre- 
ditor to be remitted to his original 
debt, 18 ; when a farmer is a trader, 
20 ; right of assignees to stop in 
iramitu, 21 ; medical man, unoer- 
tiAcated debts due to pass to 
assignees, 26; conditional certifi- 
cate, 30 ; discharge of bankrupt, 
30 ; jurisdiction of commissioner, 
30; fixtures pass to equitable mort- 

ga(^, 44 ; arrest of bankrupt after 
abjudication, 44 ; certificate, when 
granted, 55 ; of insolvent upon 
debt in his schedule, 53 ; proof of, 
on bond held for security of debt, 
55, 56 ; warrant of attorney, when 
void against, 90; construction of 
sec 1{^, 100; seamen's wages, 
proof for, 66 ; of an insolvent, 66 ; 
right to begin, 133; payment to 
bankrupt immediately before bank- 
ruptcy, 133; proof for railway calls, 
133 ; lunatic bankrupt, 134 ; arrest 
of bankrupt, 134; discharge of 
bankrupt, 148; deed of arran^e- 
qient under sec. 224, construction 
of, 158; right to stop m tramitu, 
160 ; bankrupt trustee proving 
against his own estate for trust- 
fund, 190; summoning trader, 191; 
seizure by assignee of goods of un- 
certificated bankrupt, 216; proof 
by wife on husband's estate, 216 ; 
commissioners must certify both 
truth and fulness of discovery, 232; 
rules as to sales in, 234 ; execution 
on joint judgment agunst husband 
and wife, 246 ; construction of sees. 
125 and 161, 257; crediton may 
vote by attorney, 259; disputing 
adjoduation, 269 ; jurisdiction over 
official assignee, 269 ; where bank- 
rupt has alnconded, practice, 295 ; 
proof of forged acceptances, 303 ; 
to what certificate entitled, 303 
Bill oj^ exchange — 

foreign, evidence of process of, 17; by 
joint stock company, 25 ; given for 
s bet, plea of, 26 ; pleading issoably 
on, 95 ; agreement between drawer 
and acceptor for cancellatioo, 127. 
See Promittory Note 
BUI of Lading— 

ooDStraetion of, 212 
BUI of Sate— 

validity of, 5 
Bottomry — 

when Mod attadies to vesael, 43 
Bridget — 

liabiUty of for tend tax, 144 
Broker — 

variance in bought and lold notes, 

action for, 146. See Joint Stock 
liability of >»Iway compsiues as, 
125, 223, 271 ; liabilities of, 222 
Certiorari — 
sufficiency of affidavit for, 84 ; costs 
of, 105 ; costs of in rate appeal, 
breach of trust, lOI ; payment of 
dividends to, 161 ; appointment of 
trustees, 173 ; form of application 
for, 195 ; bequest for restoration of 
Jews void, 196; construction of 
scheme for management of, 12 ; 
jurisdiction of Court as to gram- 
mar-school, 36 ; application of 
surplus funds, 274; appointment 
of trustees of sect to which testa- 
tor belonged, 296 
parishioner entitled to oppose faculty 
for repewing of, 191 
CAmtcA Rate— 
distress for, iarisdiction of justices 
in, 94; minority of vestry may 
make, 279 
See Practice, Equity 


custom to measure invalid, 258 
Cornnuttiontrt, Local — 

powers of, 122 
Commitment — 

under Small Debts Act, 244 
Common — 

right of pleading, 140 
Compotition Deed — 

validity of, 37 
Condition Precedent — 

what is, 233 
Conditiont iff Sale — 
construction of, 61 ; recovery of de- 
posit on, 106. See Vendor and 
Contolidalion Actf— 
Lands Clauses Act, 2, 16 ; compen- 
sation to landowners, 73 ; special 
damage, 74 ; consequential injury, 
compensation for, 85; assessment 
of compensation by justices, 93; 
costs of compensation, 165. See 
Joint Stock Companiet 
Conniracy — 

indictment for, 72, 105 
Contract — 
joint, what is, 40 ; sale for net cash, 
77; unpaid vendor, bankruptcy, 
124; guarantee, 105, 125; for 
article to be of a particular descrip- 
tion, 145 ; by wife of lunatie, 145 ; 
sale of sampK 148 ; bought and 
sold notes, 148 ; condition prece- 
dent delivery, 179; delivery, 212 ; 
specific performance, 229; goods 
sold, bought and sold notes of, 
264 ; enforcement of against com- 
pany for compensation, thoogh no 
damage done, 267 ; maide by secre- 
tary of a company when not bind- 
ing, 269 ; enforcement of against 
railway company to take land, 301 
Contriiutery — 

See Winding up 
Coniiertion — 

of real estate into personalty, 909 

voluntary, 126 
Conmclion — 
informal under Registration of De- 
signs Act, 106 ; enforcement alter 
appeal, 147; removal of, 152; 
under Master and Servants' Act. 
169 ; under Game Act, 170 
it included under word "estate." 
101; heriot and quit rent, pre- 
sumption as to, 121 ; evidence of 
entries in stewiird's book, 132 
in contributions to a periodical, 48 ; 
of foreign author, 110 
Copyright qf Detignt— 
tor straw hats, 83; registration of, 
104 ; informal conviction, 105 
allegation of manslaughter in inquisi- 
tion, 91 
Corporation — 
recognisances by. 8; bye-law, 162; 
void election, 163 
payment into court, 3 ; of party con- 
ducting his own opposition to a 
motion, 11 ; of wrongly setting 
down short claim, 15 ; forinfringe- 
ment of patent, 20; security for 
from foreigner, SO ; of fflonifamii* 
to Sessions, 83; under County 
Courts Act on demurrer, 95 ; tax- 
ation of, where several defendants, 
99; in charity suit, 101; of cer- 
tiorari, 105 ; affidavit of increase. 
106; of certiorari in rating ap- 
peal, 106; on misjoinder of parties 

to suit, 119; agreement to pay^ 
143 ; taxation of, 149 ; of remova 
of order of Sessions, 152 ; on dis- 
tributable issue. 164; under Lands- 
Clauses Act, 165 ; upon a cove- 
nant to indemnify, 188 ; security 
for, 192 ; of tenant for life of pro- 
perty taken under an Improve- 
ment Act, 198; secnritv for, 223; 
investment under Railway Act» 
241 ; judge in chambers may order 
under 13th sec 13 & 14 Vict. c. 
61, 246; of daim for appoint- 
ment of receiver, 293; where 
issues of law and fact, 294 

Countel — 
practice as to defending prisonerst 
10 ; notes of on brief admitted, 37 ; 
separate, iboold appear for inbnt^ 

County Courtt — 
execution, landlord's claim, 16; jnria- 
diction of Superior Coorta as to 
costs under sec ziii. 41 ; action for 
tolls in, 54, 63; interpleader, duty 
of judge in, 55; jurisdiction of 
judge, 62; when judge entitled to 
notice of action, 62 ; costs, 65 ; 
costs under sec 11 of Extension 
Act, 95 ; writ of trial directed to 
judge, 97; form of affidavit in 
su^estion, 98, 128, 143; excess of 
jurisdiction, 127; arbitrator 
pointed by, cannot administer 'j^ 
oath, 136 ; inritdietion where ti"" 
is alleged, 141; prohibitioo, 146, 
170; tnigeation, 158 ; when title 
in question, 170; prohibition for 
suing for malicious prosecutiooa, 
189 ; appeal Itoa, 201 ; practice 
of Court on, 201; appeal a* 
to agreement stamp, 231; com- 
mitment without summons, 244 1 
judge in chamben may order cost*. - 
246 ; notice of action to derks and 
baiiilb, 260; jufisdietion of jod^ 
of in insolvency, 270; writ of tnal 
cannot be directed to, 285 

Covenant — 
in a lease, 51 ; to point a boose, 56 ; 
not to carry on trade, 117; coa- 
struction of in lease, 156 ; legality 
of, 107 ; construction of, 172, 183; 
to indemnify, 1^ condition pc»- 
oedent, whatis,233 

Creditor' t Deed- 
execution of, 23 

Creditor' t Suit- 
mho may sue, 119 

Cyiminal Law — 
costs of prosecntioa, 7 ; reward for 
apprehending offenders, 8 ; coonael 
will not defend unins tm cted by aa 
■ttomey, 10; conspiracy to toiae 
wages indictable, 31 ; indictment 
for a conspiracy, 72, 105 ; allega- 
tion of msnslanghter in oorooer** 
inquisition, 91 ; removal by cerMe- 
ran', 105; larceny, bailment, 13S; 
stating proseentor's name, 135; 
using depositions in cross-examina- 
tion, 135; averment of mateiiality 
in peijury, 135; perjury before 
County Court ariiitntor, 136; 
what is a counting-house, 136; 
deposition of witness absent ttota 
illness, 136; evidence of guilty 
knowledge of recmring, 136 ; night 
poaching, description of loeut in 
quo, IZib; deposition of absent 
witness, 152 ; indictment for aid- 
ing prisoner to escape, 182 ; aban- 
donment of illegitimate child, 192 ; 
practice under 14 Vict, c 19, 223 j 
prosecutions— attorneys' fees, 260 ; 
doverasubjectof ]atceny,261 ; in- 

Digitized by 




ducement to confiBiskm, what ia, 
280; roDTietioa for ananlt bus 
(abteqaent indictment for felony, 
to measure coals InTtlid, 258 

defect discovered after delivery of 
goods, 124; for injury by a bull in 
the public way, 158 

Debtor and Creditor — 
validity of composition deed,_ 37; 
assignment for benefit of crediton, 
155 ; assignment of assurance 
policy, 18?; fraud by voluntary 
conveyance, 211; assignment to 
creditors, 218 

obtained by misrepresentation and 
concealirent, when void,32 ; coun- 
terpart of, when admissible, 64; 
erasnre in, effect of, 74 ; misnMner 
in, 78; immoral consideration, 
149 ; oonstniction of words " legal 
representatives" in, 231 

meaning of word "estate" in, 81 

of immoral consideration for deed, 

Diiorderlj/ Hotat — 
penalties for keeping, 203 

Dttlrest — 
practice of, where goods taken in 
execution by the County Coort, 
16; landlord need not state 
amount for which he claims, S3; 
of farm prodnce to be consumed 
on premises, 80 ; of madiinery, 96 


where it is, 173 


effect of interruption of enjoyment 
of for less than a year, 154 ; user 
of must be once a year to save the 
statute, 203 
writ of restitution after reversal of 
judgment, 49; omission of signa- 
ture to notice, 51 

Equitable Mortgage— 

what is. 70 
Error, Writ of— 

power of Court to arrest judgment 
on bad oonstmctlon of an indict- 
ment, 182 

meaning of term in will, 81 

by Parliamentary Agents, 7; of pro- 
test of foreign biU, 17 ; of decla- 
rations of pUintiff at time of sup- 
plying goods, 20 ; admissibility of 
agreement between two railways, 
31 ; of diverting watercourse, 40 ; 
entry by lunatic dark, 45; of Nia 
Prins Record, 56; of aeoonnt, 57 ; 
by oonoterpwt of a deed admis- 
sible, 64 ; of interested party under 
Lord Denman's Act, 97; verbal 
acknowledgment of payment of 
principal or interest sufficient to 
take case out of stet. 108 ; search 
necessary for lost deed, 126; of 
parcels by entr^ in steward's book, 
132; parol evidence of sale ad- 
mitted through bought and sold 
nntes, 148 ; deposition of absent 
witness, 152; steward's accounts, 
entry charging himself, 154 ; of 
tcieHter, iSS ; census paper, 1 72 ; 
of trading, 172; under plea of 
iStatnte of Limitations, 199; of 
alteration in a will, 252 ; interested 
pirty who is, 261; of solicitor as 
to consent to sale by clients dis- 
allowi'd, 263 ; of a nuisance, 290 ; 
surveyor's plans and estimates not 
privileged documents, 307. See 

•itficer may stop private vdiide, 192 
Ejcecvlion — 

disi^harge of insolvent prisoner, 50 
Exrctttnrt and AdminietrtUon — 

powers of, 5; devastavit by, 67; 
wh»n necessary paitiea, 120; ad- 
ministration to gnardian of ille- 
Kitiniata minor executor, 172; 
de tioiiittum, vesting interMt,172; 
testator's unsettled accounts, 231 
E.rt cniory detiit— 

w!;at is, 4 

practice as to, 2 ; where cheirograph 
destroyed, 64 

See Mortgage 
FVoiid — 
what is, by misrepresentation and 
concealment, so as to avoid a deed, 
32; in composition deed, 37; 
voluntary conveyance, 211 
Hint words pass in a will, 44 


conviction, when bad, 170 
Guarantee — 
construction of, 105, 125 


motion for, where made, 43 ; for dis- 
cbarge of insolvent, 309 
Highvtay — 

limited dedication, 91 ; right of over- 
seers to take sand on sea-shore for 
repair of, 300 
Hmband and Wife — 

liabilities of, 7 ; of husband for ex- 
penses of wife's funeral, 41; lia- 
Dility of lunatic husband for ne- 
cessaries supplied to wife, 145 ; 
right to wife's savings, 204 ; re- 
lease of wife's debt oy husband, 
229 ; where wife may join husband 
for damages, 243; execution on 
joint judgment agaiAst, 246; eqni' 
table mortgage by, 274 

construction of a local, 122 

IneloeureAet — 
construction of, 140; title to quar- 
ries nnder lands inclosed, 185 

Indictment — 
for nuisance, 39; form of for assist- 
ing prisoners to escape, 182 

liability of for calls, 248 ; petition by, 
282; appointment of mother as 
guardian, 282; must appear by 
separate counsel, 293 

Imunetion — 
Dreach of, proceedings against com- 
pany for, 23 ; against trustees for 
catting timber, 176, 193; against 
a partner not to use certain dies, 
198 ; to remove nuisance, 248 

Intoheneg — 
opposition, 6 ; contracting debts, 6 ; 
payments, neglect of, 6 ; accom- 
modation biu, contracting debt 
without probable means of pay- 
ment, 44 ; discharge of insolvent 
prisoner, 50 ; proof of bond held 
as security, 56; bankruptcy of 
insolvent, 100; friendly arrest, 
112; form of petition, 134; 
joint conusor of lands, 134; 
costs of opposition, 148 ; descrip- 
tion of creditor in schedule, 
167; misconduct of assignee, 171; 
judgment debt in schedule, 190; 
bail not opposed by affidavit, 191 ; 
action of tort broanht by insolvent, 
191 ; discharge by judge in cham- 
bers, 216; description of residence 
and place of busmess, 235 ; omis- 
sion of a christian name in a peti- 
tion, 235 ; wilful omission of debts 
from schedule, 235; prisoner for 
contempt in Chancery, discharge 
of, 249 ; liability of creditors' as- 
signee for messengers' fees, 254; 
jurisdiction of judges of County 
Courts in, 270 ; discbarKe of debtor 
in execution by plointin, effect of, 
278; privilege of attorneys, 279; 
ofattomeys clerks, 279; purchase 
for value of an equitable fund, 282 ; 
false representations by solicitor, 
client not responsible for, 287 ; 
counsel must open case of fraud, 
2H7 ; can Court discharge a trustee 
under contempt for oreach of 
trust ? 28)4 : diwharge under Irish 
Act bars debts in England, 295; as 
to debts in France and service on 
French creditors, 295; discharge 
of insolvent after twelve months' 
imprisonment, 303 ; refusal to 
file schedule, 303 ; setting aside 
half pay, 304 ; discharge as to all 
but excepted debts, 309 ; discbarge 
ad interim, 312; petition after 
petition for protection, 312; da- 
mages in action for seduction, 312; 
allowance of costs of opposition, 

312; amending description of bul, 

Inmranee, Marine — 
constructive total loss, 18. See 
Marine Intwranee. 

Lands CUnses Act, 2, 16, 21, 39, 59, 
60; recognizances by, 8; con- 
sbmcting railway in bol of a navi- 
gable river, 16 ; irqnnction against 
refiued, 21 ; when contract broken, 
proceedings thereon, 23; liability 
of bill of exchange, 25 ; admissi- 
bility of lease of a railway, 31 ; 
construction of such lease, 31 ; 
consequential damage by obstruct- 
ing water, 39 ; application of funds 
to obtaining an Act, 46; action 
ogainst on award of compensation, 
50, 59, 60; meaning of term "de- 
viation," 59; effect of notice to 
take land, 59 ; meaning of sec. 15, 
59 ; action for calls, declaration in, 
131, may prove calls against bank- 
rupt's estate, 133; i»lls payable 
by instalments, 146; shares not 
' within Mortmain Act, 175; shares 
in a banking company chargeable 
with judgments, 197; liability of 
trustees for calls, 206 ; power of 
directors to borrow money, 232; 
delivery of attorney's signed bill to 
provisional committee, 232; costs 
. of investment under Railway Act, 
241; infant's liability for calls, 
248 ; advertisement of merely to 
make calls, 25G; agreement of 
secretary when not bmdingi 269 ; 
liability of a transferor for calls, 
271 ; execution on property of in 
hands of a receiver, 298 ; where 
judge a shareholder in, 305 ; calls, 
liability for, 306 

Judge — 
should not be a witness, 260 

Judgment — 
void against creditors, 90 ; when a 
char!;e in priority, 119 

Jurisdiction — 
of Court of Equity, 297 


practice when irregularity in number 
of, 65 

Juilicet of the Peace — 
protection of, 8; jurisdiction of in 
city of York, 68; jurisdiction of, 
nnder Recovery of "Tenements Act, 
84 ; consequential damage, 85 ; 
assessment of compensation to 
railway company, 93; jurisdiction 
of, in distress for churchrate, 94 ; 
jurisdiction under Local Improve- 
ment Act, 164 ; jurisdiction of, in 
Game Acts, 170 


Re-entry for non-payment of rates, 
51, 56 ; landlord need not state the 
amount for which he distrains, 53 ; 
covenant to paint not continuous. 
5G; distress of farm produce agreed 
to be consumed on the premises, 
80; recovery of tenement before 
justices, 84 ; distraining machi- 
nery, 97 ; covenant in lease, 
117; may distrain on tenant at 
will, 145 ; alteration of tenancy, 
145; fiotioe by mortgagee to tenant, 
155; covenant not to use house 
for business, 172 ; agreement not 
to sell straw produced, 181 ; ex- 
cessive distress, 189 ; right of as- 
signee of mortgage to anteredent 
rents, 205; precedent conditions 
in lease, 233 
Land) Clautee Act— 

decisions on, 2, 16, 21 
Land Tax— 

liability of bridge tolls for. 144 ; 
waterworks not liable to, 284 
Ideate — 

covenant in, 117; construction of 
covenant in, 156; reservation of 
rent by, 183; covenant to repair — 
assignee, 188; conditions — prece- 
dent, 233 

claim for affidavit of insufficient 

assetf, 293 
Legacy Duly — 

payable bv officer in her Majesty's 
service dying in East Indies, 28 

privileged communications to jus- 
tices of the peace, 8 ; plea of justi- 

fication. 124, 166; estoppel, 166; 
what sufficient justification, 236; 
newspaper criticism — malice, 247 

LimttatioM, Statutee <j/"— 
how far will run against • deed ob* 
tained by misrepresentation and 
concealment, ^; what sufficient 
acknowledgment to take case ont 
of, 61 ; will affect simple contract 
crediton as if specialty crediton, 
when, 67 ; verbal acknowledgment 
of payment of principal or interest 
sufficient to exempt from, 108; 
mortgagor and mortgagee, 115 ; as 
to nonpayment of heriot and quit- 
rent, 121 ; effect of interruption for 
less than a year, 154 ; where two 
writs issued to save statute, 199 ; 
snbseanent promise, 201 ; construc- 
tion of , as applicable to a mortgagee 
221 ; does not run uunst a testa- 
mentary guardian, 249 ; evidence 
to take account ont of, 288 ; renewal 
of notes does not take debt out of, 

Literary Inetitutiont— 
liability to poor-rate, 75 

London, City qf— 
jurisdiction of small debt courts, 77 

Lord Tenterden'f Act- 
evidence nnder, 108 

Lunatie — 
marriage contract by. 10; liability of 
lunatic husband, for goods sup- 
plied to wife, 145 ; appearance by 
solicitor for, 241 ; allowance ont of 
surplus income, 305 

Lunatic Pauper — 
order for costs of maintenance, 74 ; 
costs of removal, Gilbert's Unions, 
91 ; property of lunatic criminal, 
106; order of maintenance on a 
single parish incorporated, 142; 
no appeal w)ere chargeable to 
county, 155 


See Jtutiee qfthe Peace 
Mttndamui — 
to Dean of Rochester, 73; to Sessions, 
cr.stsof, 83; to complete railway, 
92 ; for election of clerk to 
guardians, 140 ; to corporation in 
a void elation, 163 
Manor — 

right of, on sea-shore, 300 
Manilauphter — 

allegation of, 91 
Marine Iniuranee— 
perils bv sea, 82 ; authority of 
masten to pledge ships, 255 ; to 
bonow money, 257 ; calculation of 
partial or total loss, 242 
Marriage — 

nullity of by fraud, 235 
Married Women — 

revenionarv interest of, 2 
Matter and Servant — 
oonspiracjr by workmen to raise 
wages, indictable, 31; apprentice 
may quit service, when, 52 ; com- 
mitment for leaving service, form 
of, 169 
Medical Practitioner — 
being an uncertificated bankrupt 
cannot recover, 26 
Minet — 
of Dean Forest, powers of com- 
missioners of, 139 
Mimomer — 

in deed, 782 
Money had and received — 

when it will lie, 65 
Mortgage — 
by railway companies not within 
Mortmain Act, 175; foreclosure 
claim, 175; right of assignee to 
antecedent rents, 205 ; practice on 
foteclosare,208; title of mortgagee 
not barred by Limitation Act, 221 ; 
foreclosure daim, 241; right to 
redeem after twenty yean, 115; 
account against mortgagee, 115; 
of reversionary interest in stock 
foreclosure, 151 ; notice by mort- 
gagee to tenant, 155 ; equitable, by 
husband and wife, 274 
Mortauin — 

■hares in companies not within, 175 
Municipal Corporation — 
election of alderman, 43; voting 
papen, description on, 71 ; com- 
pensation to town cleric, 130 ; ap- 
pointment of trustees of charity, 
173; actions under for penalties. 

Digitized by 




192; inTalid cuttom to meunre 
eoik, aae. Saa Cor prntMn u 

msi PRiua- 

piactioea^ M 

—Ml— it far, by -mnmicSlS'/ to» 
jointaoalnct,M: b iiA fa mu ngfa, ^ 
lOS; what k ^phnte, 290 

owr to i < m»m . 
tcnalof, 282 

I pMcfiee in, 107 ; I*- 


fiopccty. of loatie «riininil. 


OMrt iriU not Mottew M<a of, 11 ; 
MixMati«r, 7»; what liMt, 155; 
iripattiiiaaHuaw miHlii«t«inp^ 
IW} chum bf pMrtpei*, 24S 
ofamuior ■aMMMt luiiwiti in corn- 
ami. 238 
iiifiriiigeiiMataf, InU» eMia tar, Mt 
inMofaiMBto^ 131| ti|fat «o n- 
Pmrimg mmd LifUkufAet'^ 

eonatmetioii ot lU 
PagtmiU — 
BBder ibirMt marbe raeovcndbMk, 
•6 * 

Car Imbic dimOirir bow^ 203 

daathof, tatoBmAmt^ltv^aaBm, 

L of axcBBn|a ftf tt bai, 26 j te 
BctioB tar £v«rtiag %atvooorai^' 
40; deehMtkm fcr anMaira di»- 
•tnH, 63] aoeoid aad ntisbetkai, 
biri plea of, 54; in abatement, 74; 
jmw darrtm eoutinaa n ce, 82; 
{■uhlT, 95: da d aration in an 
action for ealU. 131 ; lii^afaMi- 
man, 140; far tnwana taa burfe, 
166; plan of jartiflcalioa -and 
aatopaal. 166 : pailiaa, W,nSkt9D ; 
mi4mnder. 119 { axoaptiona for 
icandal, 161 ; tiaapaaa, rislit of 
«», 198; badonpt'a oartificate, 
SXe; caranaat br kmee, 23B; 
payment of money into cooit, 248 ; 
traiarM, 244 : aTnrmaat and venae, 
272; receipt m ainiiwaliiiaof d»- 

Jwrtiiietian «f, 96 

raar Uw Baani, jaMMia* of, 9B I 
lemoval after raaideMa with it«p- 
mother, 61 ; Innatie aadar by Jas- 
tjeet of a ctty, 62 

£^»tei)fea(— bywrriiiffottaaefeMrlc 
of distriet obarcb, 74; by apprau' 
ticeibip, 92 

Peer.»«<r-liabaty a< litwary in<H- 
tatientto, 75 

BiM^Ma — abaoee of bntbaad 
abroad, a breach of vetidenee, 
when, 90 ; retidenee btalcan by 
relief, 90; br order of reoMval. ^ 

J f pt al w aarfeaw w te bew, 170 

O virt it ii wt ui ag property of Inndtte 
criminal, 106 I 

Oawrfiaai aleetiaa of dark to, MO 
Power — 

ezeidie of, 302 
Praeliet, Common Lme— 

nnder Tmatee Act, 25, 49; Macnd- 
ment, 40; motkn <br Aaira* 
eof^pK*, 43; writ of i mllu ti uu in 
eje^en^ 49; wenri^ for ooMa 
from fereicper, 90; dMuurn of 
ineolTentpriiotnr, fiO; omiiuoaof 
rignatnie to notkia in ejectment, 
51; declaration far MecMdirtran, 
53 ; pleaof accord and aatirfiutian, 
54 ; amendment of plea, 56; per- 
mitting Areah evidenee rfker caae 
'doeed, 61 ; inecalaritT in nnmber 
of jnry, 65; ai to diichar(e of ari> 
aoner on death of plaintifT, 67; 
Jodfment as in caae afaoooaiit, 
77 ; waiver of tort to bring moaey 
had and receired, 80; j ilBla i of 
oo-phintif, 80; esato ofdeaiailrer 
nnder Connty Courts Act. 95; 
writ of trial to Connty Conrt joiWe, 
97 : death of one of the partiee, 
98 ; form of affiderit in snggestion, 
98 ; taxatioa of ooeta, 99; m eiror 

to rereree outlawry, 107 ; order to 
elect b a t w a e a two aetiaas far same 
cause, 141 ; affidavit to enlsr^ 
peremptory andestaldag, 156 ; dis- 
tribukMelisaa, 164; jodgmeat ai 
in case af lam i iiit, 170; iasuaa 
raised in action on eootnact, 179 ; 

fayawnt af ueney nadir award, 
84; seooiity far eoats in action 
far panaMaa. 192; pieadiaK ri(ht 
of my, 190; a arsiea a f writ of 

lawry, 202; pkaa of jwstOeation to 
• libel, 236; plaadiag payment of 
Boaey Mo oonrt, 843; venae, 
272; caati iibaia imam of bw a»d 

ooati, 3, II ; of eoaaael fai drfsnoe of 
prboncn, 10; of Coort of Chan- 
cery as to continaiBg tiade of part- 
nership, II ; as to coats of party 
condnctinc hit own opposition, 11; 
as to cam nnder Turner's Act, 15; 
\a l»iu< atfflin uadnst (brsCT soli- 
ettor, 21 ; admitfing ooanaal's notes 
on brief. 37; in trying validity of 
a will, 37; taking an aoaount, 45, 
57 ; uto eUms, 15; aflidavits In, 
58; setting down as short, SO; 
prayer to ancoont, 70; revivor, 
70; exceptions for insoCdeney, 
70; patUas, 87, 119, 190; disci»' 
Kan of Heater, 88; nedal cam 
■adarTtonei's Act, 80: amenrd- 
ment of dahn, 114 ; ml^ioitadar, 
119 ; daim eiders, 120; powerof 
Coatt to lire rdief at neariog, 
laO; oaderTrutee Act, 139. 190, 
' 162; eseepCons, ifsndel. 161 ; in- 
tedoeatary aap Hc attone on daims, 
162; eatoppM. 166 ; on foasdoenre 
daim, 175; appearance for infants, 
176 ; appDoatton for rapdntment 
of diarity tmataee, 196 ; affidavit 
ofplaintioin adaia, 196; exoap- 
tions to Master's eattiAcate, 196 ; 
in injunction, 196 ; nnder Trintea 
Aet.2Br;iafan!dasare,28e; dis- 
Bolving eammon iqioMlian, 817; 
Jemas a m forwent oTpaitiea, 218; 
leave to amend 68th order, 219; 
aait by ebims, star of decree, 220; 
eompromiee of suit, 220 ; s e euri Qr 
(or oosia, 223; pl is ding iirim l b n 
of anodier soft. 224 ; motion to 
cBsdmige prisaiier, 229; spedflc 
perfiiimaiice, 229 ; appeintaient of 
nedver In iafanf s estate, 231 ; 
12th General Order of 2nd of Nev. 
■ h ijuii ct W n, 230 ; refaiencp, 240 ; 
abaBonAv detaidant. Zll; ap- 
neaianae lor lunatic, 241; costaof 
lavaatment nnder Bailway Act. 
241 ; ddm by partner, 212; leave 
to file daim, 242; ddm forfore- 
doenra, 241 ; injanetioato remove 
ndsaaee, 248; prisoner for con- 
■ ddm, 290; 
scrT)eeefwr(t.2Sl; aqaitable 

to Cooatr Caut,94. 8« Om>i$ 
Promitiorf Net*— 
oonsidention for, 144; wbatisMI, 
172: set oifand award aad satis- 
faction by, 289; reodptiadiesbeite 
aCSlfl. amMittitfMxdUmt* 

jnweerfaMfeta, 147; leiBoval of order 
of. 152; aM>eal againrt eitar of 
mnovd, 170 
Qko IFarrafif o-~- 
to try vaUdity of dectioa 1o defk to 
guardians, 149 

mortgagw and sherm hi not witUn 
Mortmain Act, 175; anginaer mede 
agent of, 179 ; raong of brandi 
Hnes, 180; ipedfic p el fb t aa n u e , 
210; lieUUtiM aa auriata, 223; 
Mtiag ct, 71; fi^ of aeiiMi 
sgdnst by laadowner, 73; com- 
pensation by, 73 ; damage by ob- 
stmcting way, 74; ai s ii rteme r to 
oomplele after Moiration of eom- 
pohory pow«i% 02; aasaamsent of 
eampenaation by jaatioea, 93 ; lia- 
bilitrfor fatjaryto p ost eflieessT- 
vant^ IS3: liability aa carriers, 
125; pntdng calls apiatt bank- 
mpTi ealata. 133; siaaJsaiiir to 
oonatnad; 153; wikm. wS Ua for 
not eeapistini^ 154; u as mi a nt sja 
leese to, 157 ; pnrnham of daitty 
lands. 161; uiiaaUautiuaaf peivata 
Act, 184 ; oomfaaaatioa aad eosia, 
165; agreeneatfor nimp aiisaltai 
anfarae^ tbnagh no damage done, 
267; when amMBcnt of aecretery 
not Vinding, 269 ; iqimctioata M- 

eqnitd>la,252; promisaaryBatai. 289 

JiWfwsmf — 

of real eetate. construction alt 290 


RMtatnr Aets, 161; UnluisMMairf oa 

^Sdrsale, 161 ; liaUHty oT ea^go 
for bottoauy bond. 285 

by snspidon orMony, 66 
Spit^ie Pttformmttt^ 
punbam from client by aaoHokr. 87 

oa ooanftsrpait of deed, praof of. 6* ; 
deed of settlement— appeal ' 
oommisdonem, 128 ; 
note, 172; agreeoM 

4ABa%e. 16^8.6 

ae * 40 Gea. 1^0.98..-. 

rtfaesd,275{ i 
crty of la 

cation eaieoperty of la handeof 
receiver, 2A ; oontract to pardiaee 
land aet re qa i r ed enifarced, 301 : 
liable far damana not permitted 
by Aet. 30»t eoatMCk with for 
wnvayaafa of asrvaat. ?04; ille- 
gal preaeedinga of wreeteca <na 
gsooad for rafMag papaeat of 
edk, 306. Saa MM abet Cam- 
jNBdM^ ijUkdi-Cttftait JLett 

«f railwayih 71 i oaata of «si <toiaii 
ia. 106; for renair of n a e r a l l . 
UB; of braoeh linea of rdlway. 
18e;«hamicd waAi. 182; vali- 
dity rf rate. 8X 


temp^ 249 ( partiee to ddm, 
service of imt. 251; eoaitab 
off. 252; Itond ia coort bdondngts 
a married womaa, 274; sabaututed 
aervieeofrab|Nena,275; mtostop 
onkr on a foad by Jndi^ent cre- 
ditor. 281k petition by infanta. 
282; suAoeney of answer, 282; 
who* sought to make mother guar- 
dian, 282 ; on non-a pp earance of 
pbintiff in daim, 2Bat; in ddm for 
appointment of new trustees, 283 ; 
wnt of trial cannot be seat to the 
Coonbr Conrte, 285; pleading by 
ooe or eeveral perties interested. 
290: statement of ooansd on eflbet 
of deeds, 293; defect in supple- 
mentel bill, defendant not being a 
party, 293; affidavit of insufficient 
assets ia ddm for a legacy, 293; 
execution agdnst property in hands 
of reedver, 298; daims— for iU' 
qidrinx into trusti of a will, 293 , 
costs of in appointment of a re- 
ceiver, 293; infants must be pro- 
tected by eeperate counsel, 293; 
leave of Court to fife, 309 ; Trus- 
tee Aet— service of petition nnder, 

nssr mastbeonoeaycar, 203; right 
to lights, 246 

Principal mtd Aftni — 
wben^egeat ma)r sue ss principd, 
27; when enpneer of a company 
constituted an agent, 179; saooey 
received by, 202 

fraetiee af, 22; to Inbnfs mtalsa. 
2S1 ; oosts ef daim for appoint- 
awnt of, 293 ; eaecntiea oa pia- 
perty in hands o^ 298 
in lull of an denamd^ ona* of piaof 
Reeeyatxeaese — 

names of iasliemoa, 91 
Jboeesre or 7>a«aM«fa— 

JadadMttOB of Jaatiessk 84 
JbffidTafisa qTAd^ne— 





2ASWm.4,e.71,a.S....~ 246 

Sft4WaL4.c74 2 

o,Ut 38 

5ft6WaL4,e.62.aIi8l.l!.* 8 

1 Vict e. 26. At - tn 

l&3VIc(.a.ll^a.M m 

3»4Yiet.e.77 ~ 36 

• ft7Via».fc86»a.l ~ fO. 

• VIat«.ia^ 21 

a.tO,m.ll,t* m 

eft9Vlet.a.l09 7 

UftUVIet.«.106.a.41 .... 90 

13 ft U Vick. e. 61. s. 13 MC 

effect of reped oC 72 ; eaaatoMtiN 

of. 102: eaa dimttwi at a bed, 
Stoppagt fa TV aaiW a 

when ivheed, 77; form o< affidarit, 
98, 128, 143. See Cbaaiy Char* 


TVaaaf fa OnaaMW— 

partitian of manor anunc 991 


trust to keep op peHaim of 
not within, 263; ~ 


Kt mm uli , Pomr — 

Extinguishment of by iobseqisent 
eenveyano^ 226 
af BMdiinery distrainad, 96 1 avowry 
for tithe reat-charge. 106; what 
facts will soalaio avowry. tZi 
Setiitnet, BriacA ^— 

See Poor 
Rnerobmart) tfUtrmt—' 
of marrieawoaian, 2 


coveaantfar. 107 

right to where two saU of advors, 204 
Bcmooit yaMi^— 

Tsssoval of master of, 73 

form vt, 91 
Am Short— 

Righta of manor on, 300 
Setnom Quarter — 

costs of aKmAnnit to, 83; affidavit 
of service of notice for certiorari, 
84 ; cost of eerftorwri, 106 

308; pot- 
tioas^ applications e( amim, 908 

i^htafataaaatimUfataaat^ 178. 


at tba term ia a Tmn- 

gee M aw it ip ml O it pu a t imm 

laaaauidbn oi; 80 
paymaaftfasto eonrt nnder, 25; affi- 
davit 49; pnxaedings under, 207: 
order under ceanot be lude in 
petMoa, when, 231; power to 
apooiat under aec. K, 241; ap- 
pomtmeet of new truataee, 251. 
Bee ProMet (.KquUp) 

appsiatniBat ef new. under Thistee 
Act, 71; tmndbrcf etookto. 71; 
bieMsh ef trust. 118; suit by, 
under aew Act, 118; breach of, 
119: liabiUtiee o<; interest to he 
paid by, 196; for caUs in aoom- 
pany. 806; voder traMao Act, 
207 ; liability for contribotitw, 
224 ; power to appoint under 32nd 
tec. of Trustee Act, 241 ; nneqnd 
division of esUte t>y, 247 ; trsta- 
■watary guardian, liable as, 249; 
wbsa Court will appoint. 251; 
ddm for appointment of new prao- 
tiea,aata, 283; bill by, to recover 
trust fond, 290; indemnity fond 
by, how applied, 294. See Tmtm 
piactioe under, 15 

Digitized by 




eonstmctioD of the term " town" in, 

nnder snignment of a life mmaraace 
policy, 187 

Vtnaor mid PurekttHr — 
omatractioa of conditions of nle, 
61 ; oonreyance by troitees, 207 ; 
wnini Court will not force title on 
inircluaer, 240 ; evidence of loU- 
dtor at to conaent to nle by hie 
clients disallowed, 2S3; particiilan 
and conditions of sale, excess of 
•rerage, 277: purchase of rarer, 
sion mm an insolTent, 282 ; effect 
of description of parcds in a plan 
annexed to conyeyanee, 288; pur- 
chase and promoters of a poblic 
nndertalnng, 288 ; enforcement of 
contract by company to take land, 
301. See Condttimu nf Salt 

validity of proceedings of, 225 
VolwUary Comtyt»e* — 
fraud on creditors, 211 ; secret settle* 
ment on marriage, 1^ 

Warrant tf Attontjt— 
execution on against hnsbaod and 


ploughing up rabbit-wanen is not, 
20 ; by tenant for life of ornamental 
timbn-, 176; by tenant for life, 

right of owners of land to running 
streams, 79 
H'Mcr-eoiirs* — 

action for direrting, pleading and 
evidence in, 40 


construction of, I, 22, 87, 89, lOI, 
104, IM, 123, 137. 178. 196. 207. 
208, 209, 217, 220, 230. 231. 239. 
292, 294, 309 ; ezecutoiT devise, 4 ; 
chaige for payment of diebts, 6 ; on 
ciit of an annnity, 22 ; validity of, 
how heir-at-law may try, 37 ; con- 
struction of Wills Aot, s. 28, 44; 
are copyholds included nnder 
"estate,'^ 101 ; resichiary bequest, 
101 } conditional limitation in, 104 ; 
contingent Inacies, 114 ; Thellns- 
son's Act, 114 : construction of 
word "business,*' 123; Mortmab 
Act, 137 ; power of appointment. 
138 ; administration to guardian of 
illegitimate minor executor, 172; 
as to domicile, 173 ; dying without 
leavingissne, 195; as to real estate, 
207; contribution, 208; "all my 

estate and effects," 209; next of 
kin, 217 ; abatement of legacy, 
218; preotoTf words, 230; elec- 
tion, 239 ; vesting of trust property, 
239 ; power of sale of devisee of 
tnislee, 240; unequal division by 
trustee, 247 ; evidence of alteration 
in, 252 ; joint administration, 259 ; 
of wife of convicted felon. 260; 
signatnra at the foot or end, what 
is, 271 ; are sureties ehaneable 
by, 275; to fnliU trusts ofmar- 
nace settlement, 280; revocation 
of devise, 282; conditun and for- 
feiture for joiiung Roman Catholic 
establishment, JMS ; survivorship 
vesting on, 283 ; interest on legacy 
charged on land, 283; breach of 
trust, satisfaction, 292; appropria- 
tion of residue, 292; proceeding 
by residuary legatee, 293; daim 
for payment of legaejr, 293 ; appli- 
cation of an indemmty fniu], 294; 
Mtingniefament of rent - chuge 
c r es t e d by will, 296 ; appointment 
of'diartty trustees under, 296; 
conversion of real estate into per- 
sonalty, 309 
WiNDUra-op :— 
on oontribatoriea, 117; for debts, 
117; for eosts, 151; liability 

to, 58 ; when wrongly made, 240 
ContriiHioriet — 
aUottees, 1. 14, 59, 237, 261; 
transferors, 1, 14, 57, 113 ; direc- 
tors, 14, tf; devisres, 24; ex- 
ecutors, 47, M ; provisional com- 
mittee. 59, 175,209 ; compromise 
with, 89 ; calls on, 117. 151 ; by 
paymentafler scheme alMmdoned, 
137; by acceptance of shares, 


of former suit, 71 ; petition dis- 
missed, 88; UabiUtyto, 58 
of Court under. 23; of Master, 47; 
dubs within the Act, 219 
for acts of provisional committee, 
Praeliet — 
advertisements, 57 ; Court will not 
stay prooeedhigs in a suit, 219 ; 
discharge of order, 240 ; change 
of Biarter, 251 ; proof of debta, 
251 ; leave to appeal after time 
expired, 251 ; creditors may in- 
spect documents, 88 ; sectmd re- 
hearing, 137 
judge should not be^ 260; iubpcena, 
7. SeelMifme* 

[Fbr Index to Oeniral Matltr ttt tnd ^ Ve/«me.] 

Digitized by 


Digitized by 


MimoH 29.] 




vzoa-caAvo8x>XiOS xwxobt 


RcpocMdbr 0>o. 8. Aiuinnr„EML afths Kiddl* Ttnpl*, 

Frtdi^:, Feb. 14. 
Moimiso!; t. Hoppe. 
Will— Coratruclitm— Property— Beat ttiate. 
Seal tttale held to be included in the word "pro- 
perty," although the tettalor rtferred to the in- 
come arinngfiom hit property under the iermt 
-' dividendt^'^ and " interett." 
Samnel Kulcman, by bis -nriU, dated the I9th day 
oTApril, 1820, after appointing execnton and tnuteea 
of hu irill, prooeedea as follows: — "It is my will 
that my dear wife hare for her own use dturin); her 
aatanl life 400/. per annnm, arising from stock in 
the 5 and 4 per cents standing in my name, and at 
her death to cease, and the principal to be added to 
my ottier property, and to be divided equally, share 
and share alike, to each of my three danghtera, Mrs. 
Martha King, Mrs. George Biggs, and Mrs. £. 
Toawill; and I give to each of them 60/. per annum, 
ansing out of the stock in the funds, the interest 
aiiaing out of all my property. Now, I wish it to be 
so onderstood, that the property so left to my 
dang hters be secured to them, that their husbands 
shau have no power whatever to control, or constrain, 
or sell, or mortgage, any part of the property left to 
each of my daughters, or apply it to any other use ; 
bat that toe executors see the dividends received by 
them ai!d paid to my daughters regularly. And in 
case of the death of either of them, and at the death 
of each of their husbands, then to be left in trust 
for their children, and, at the age of twenty-one, 
to have share and share alike if more than 
one child be living. And I wish to give to the 
Misaionary Society, for spreading the Gospel at 
home in the villages round about London, 10/.; and 
also 10/. to the Bible Society, and 5/. to the Society 
for the Relief of the Widows of Miniiten, bold at 
Spa-fields Chapel, and 5/. to the school of Spa-fields 
Chapel. As there will be a considerable residue, 
viz. canal shares, of the annuities of Mr. J. Lidley 
and Mr. Gascoigoe, and thej.thsre stock from the 
Gqmtable and Amicable Society, which, and all 
other remaining property, to be consolidated and 
lud out in the pnblir funds, or in the most secure 
and profitable way possible, to increase the property; 
and at the death of Mrs. Kirkman, to be divided, 
tiaie and share alike, to each of my daughters, and. 
-at their death to each surviving child or children, 
share and share alike, to be so secured as they shdl 
not be at liberty to dispose of it, or to alienate the 
property from them or their children. Mind this ! 
that their husbands shall have no power to dispose 
of the property left to each of my daughters, Mrs. 
M. King, Mrs. Selina G. Biggs, and Mrs. Elizabeth 
Toswil], either by annuity, mortgage, or anything 
dse; the interest to be received by them through 
their trustees." 

The question arising in this suit iras, whether 
some real estate, of which the testator was seised at 
the time of making his will, passed under the will, 
or descended to the testator's co-heiresses at law, as 
undisposed of by the will. 

Wood, Caimi, Frith, Ifalint, and T^ntlmin, for 
parties interested under the will, contended that the 
real estate was included in the terms used by the 
testator, and cited Doe den. Walt v. Langlandi, 
14 East, 378 ; Doe dem. Morgan v. Morgan, 6 Bam. 
4 Cres. 512; Saumarez v. Saumarez, 4 Myl. &Cr. 
331 ; TAe Midland Countiet Railway Company v. 
Ottain, 1 Coll. 74 ; Ford v. Ford, 6 Hare, 486; and 
Warner v. Warner, 16 Law. T. 320. 

R. Palmer and Selwyn, for the co-heiresses of 
the testator, cited Doe dem. Bunnuy. Rout, 7 Taunt. 
79 ; and Sandermn v. Dobton, 1 Ex. 141. 
The Altomeg-General uadFooie, for the trustees. 
Brett, for another party. 

The Vice-Ch ASCKLLOR said he should have sent 
this case to a court of law, if either of the parties 
had desired it. Neither of the parties, however, had 
desired itj but, on the contrary, they had all agreed 
in reqnestiog him to decide it ; and it was not neces- 
sary that he should decline doing so. The question 
was, whether the word " property," as it occurred 
DO less than eight times in the will, or, as used in any 
one or more of those times, was to be construed in 
its ordinary, correct, and proper sense, or otherwise. 
The burden laid on those, who said that it was not 
to be construed in the ordinary, correct, and proper 
sense, to shew that it was not. In Us Honour's 
opinion those parties hod not discharged themselves 
of that burden. The only argument he thought 
colourable, ably as the case had been argued on 
bodi rides, was, that the testator had expressed him- 
sdf here and there in the words "dividends" and 
" interest," when he meant income. TtiaA, how- 

▼0&. xvxz. «•. va. 

iwt', was nbt sofficittit in liis opinion to warrant the' 
|Coart to' depart. from the ordmary meaning of the 
words ntM, and partienlariy when it was impossible' 
for any person reading this 'will to suppose that the 
testator intended to 4ie intestate as to any portfon 
of his property. ' 

Lane t. Greek. 


A tettator gate 100/. apiece to the four tone nf 

A. B. by her former hutband. The only ittue if 

A. B.'e former marriage vat three tont and a 

Held, that thete three tone and a daughter took 


Henry Wright, the testator in this cause, bv his 
will dated the 30th of June. 1846, gave " 100/. 
apiece to the four sons of Amy Hazell, wife of 
Hazell, of Chorley, near Wallingford, by her former 
husband." The testator died on the Ist of July, 
1846. From the Master's report in the cause it ap- 
peared that Amy Hazell was married hut once before 
the marriage to Hazell, and that of the first mar- 
riage the issue was three sons and one daughter, and 
that these children were living at the date of the 
testator's will and death. The Master reported that 
these three sons and one daughter were the persons 
intended in the will of the testator by the descrip- 
tion of " the four sons, &c." 'The cause now came 
on upon further dh-ections. 

Wilcock, for the pUuntiff. 

Headlam and E. G. White, for some of Mrs. 
HazelFs children, relied upon the case of Lord 
Seltey v. Lord Lake, 1 Bea. 146. 

Bagthawe, Wintlanley, Biehner, and Riley ap- 
peared for oth^r parties in the cause. 

The Ticb-Chancellor said that he thought it 
impossible to 'say that the testator did not intend to 
give 400/. ; and as there was no disptite as to the 
parties intended, he thought on this particular will 
the three sons and daughter of Mrs. Hazell should 
take the 400/. 

letter of appMeatlon; and ibimded'bn tkepronectoB^ 
'Evidence Is here that^ the appUcaait saw the pro> 

r!tas, and be most be aasomedto have'applfed'on 
foothig of that'doeuinent, which authbnses.the 
ineoiring of expenses of plans and other matters. 
yfith respect to Memdtlay'i case, there was an 
order to wind up a formed company. It was a com* 
pany incorportted, holding the certificate of tlfei 
Boaird of Trade, and having a deed of settlement^ 
aAd Messrs. Maudslay were allottees who did not 
accept shares. Here, however, there is not a fbrmed 
company in any sense whatever. It was an abortive 
stiheme, and in all other matters different fiom that 
Of-Mandslsy. Nothing Anther need be said of 
earmichaeri case, than tfakt it is one of a provincial 
oomioltteeman, and not appHbable on this' p isiw t t 
oc«atiOn. Matthhe't ease ^vemed this, where he- 
was held liable mtless then was any fraud. The- 
House of Lords have held that if there be no liabilitjr 
at law, the Winding-up Acts have not the effect 
of creating a liability, and that is the whole extent 
of the decision. Counsel also cited and observed 
on Parbery'i case, and Woolmer v. Tolty, 4 Rail- 
way Cases, 713. 

'The Vice Chancbixor during the argnments 
asked whether the present case was governed by that 
mysterious case which every one who spoke of or . 
alluded to, whether sincerely or insincerely be could 
not say, professed not to understand ; and at the dose 
observed that where Courts had been contradicting 
each other for years, this Court could do no other- 
wise than follow the last decision. As this case if de- 
cided in &vour of the official manager must directly 
contravene the principle laid down by Lord Cran- 
wolth, a course which his Honour was not in any 
degree disposed to pursue, he should order the name 
of the appellant to be removed. The costs must be 
paid out of the estate. 

Monday, March 24. 
JSr parte Hirschkl, re The Bsiorton, Lewes, 
AND Tonbridob Wells Railwat Compant. 
Joint-Stock Companiei Winding-up Aete— 
Contributory— Allottee. 
An allottee of tharet in a company, by the pro- 
ipeetui of which it vat ttated that power wat given 
to the committee to apply the fundt m payment 
itf expeiua incurred m iti formation, ifc, wat 
Beld, not to be a contributory qf the company. 

This was a motion on behalf of &»-. Daniel 
Hirschel, by way of appeal from the decision of 
Master Home, whereby Mr. Hirschel had been 
placed on the list of contributories of the above- 
named company, in respect of ten shares. The 
company was provisionally registered in September, 
1845, and in the prospectus issued, the following 
passages occurred: — 

" Until an Act of Parliament shall be obtained, 
the afiairs of this company will be under the control 
of the committee of management for the time being, 
to whom power is given to allot the shares, and to 
apply the funds of the company in payment of all 
the expenses incurred in its formation, and in the 
preparation of the plans and sections to be sub- 
mitted to Parliament. Power will be applied for in 
the Act, and in the meantime is hereby given to the 
committee of management, as above, to raise any 
additional capital, to abandon any part of the line, to 
make branch lines, or enter into an^ arrangements 
vrith any other company or companies, and also to 
nominate the first directors of the companv." 

On the 7th of October, 1845, Mr. Hirsdiel vrrote 
a letter of application for ten shares, in the form re- 
quired by the company. On the 10th of October, 
1845, the allotment committee was appointed, and 
they met on several occasions, and on the 17th of 
November ten shares were allotted to Mr. Hirschel. 
but no deposit was paid by him. It was contested 
in the Abater's ofiice whether Mr. Hirsdiel ever 
received the letter of allotment ; hot on the appeal 
the het that be had received it was admitted. 

Malha and Southgate appeared in support of the 
motion, and said that at the time of the ^otment 
the scheme bad been virtually abandoned. 

The Vicb-Chancellor called upon the counsel 
fo^ the official manager to distinguish the present 
paffi from those recently before Lord Cranwortii. 
. Btcon and Daniel for the official manager. — ^The 
letwr of application for shares was founded on the 
prospectus, and the latter, therefore, formed part of 
the contract. As by the terms of the prospectus 
authority was'given to incur expenses, this gentleman, 
bv his application, entered into a contract to bear 
his proportion of such expenses. He is not now at 
libertj to say that he is not liable. This case is dis- 
tinguubable from Cappet'e case, Maudtlay't case, 
and Carmichaeft case. In Capper' t case the letter 
of allotment was conditional, that condition was not 
agreed to, and there was, therefore, no accepted con- 
tract. Here there was an acceptance by the receipt 
of the letter of allotment, sent in pursuance of tiie 

Tuetday, March 25. 
£rpar/e Croxton, re The Odmdle Unws 

Bbewino Company. 
Joint-Stock Cempaniet Winding-up Act* — 
T%e tran^eror qf tharet in a company had beem 
f laced by the Matter on the litt qf eontributoriei 
in retpecl of the tharet up to the day qf transfer ,■ 
but, upon appeal, the Court 
Held, upon the eonttruetion qf the deed qftettle- 
meat, that the trantferor y>at not a eontrtbulory. 
This was a notion on behalf of Mr. George Cr«x> 
ton, diat the decision of the Master (Richards) 
charged with the winding up of the above-namea' 
company made on the 13th day of March instant, 
whereby the name of the said George Crozton was 
placed or directed to remain on the list or addenda 
to the list of propnetois or contributories of the said 
company, in respect of twenty-five shares of 25/. 
each, nntil the 21st day of October, 1842, might be 
reversed, and that the name of the said George 
Croxton might be struck out of the list of proprie- 
tors or contributories of the said company, or that 
the said decision might be varied. 

The Master inserted the name of George Croxton 
on the list of contributories, class 1, as a shareholder 
who had signed the deed and paid on his shares in 
full in respect of twenty-five shares of 20/. each, as 
liable in respect of those shares to the 10th October, 
1842 ; and on the same day the Master put the name 
of Charles Frederick Yorka on the list of contribu- 
tories, class 4, as a transferee of the same shares as 
liable from the 10th day of October, 1842. 

The company's deed of settlement, dated the 29th 
day of September, 1836, contained provisions for the 
transfer of shares and the registration of such trans- 
fers, which had been duly complied with upon Mr. ' 
Croxton's transferring the shares in question to Mr. 
Yorke on the 10th of October, 1842. The deed also 
contained the following clauses : — 

" 13. That no member of the said company, his, 
her, or their executors oradministntors, shall in any 
case or event (as between himself, herself, and them- 
selves, and the other members thereof) be answer- 
able or liable for or in respect of any debts, odls, 
or demands upon the said company, after he, she, or 
they shall have ceased to be a member or members 
of, er to have a share or interest in the capital stock 
of the said company in his, her, or their own ri^t ' 
or rights, or by representation, save only and except 
for and in respect of any sum or sums which he, 
she, or they shall or may be liable to pay by reason 
of any forfeiture, penalty, or misconduct under 
tome clause or provision in these presents con- 

" 34. That from and immediately after any such 
transfer or assignment, as last aforesaid, shall be 
made of any shue or shares, the former or last pro- 
prietor thereof shall thenceforth be for ever acquitted 
and discharged of and from all covenants, agree- 
ments, regulations, obligations, and liabilities what- 
soever, under or by virtue of these presents, for or 
in respect of the share or shares which shall have 
been by him, or her, or them, so assigned or trans- 
ferred, save only in respect of any penalty, forfature. 

Digitized by 




[Noj. 417. 

NNtOHT wwcg i eo«mT< 



or liaUUh, tAich sImU bAve Ixen 

coned bf mm, her, or (bem« in regard thereto.' 

/. Parker and HitUyp Clarke, in anpport of the 
motion, cited Bx parte Salter, 14 Jar. 966 ; and 
Sandereon't aae, 3 De G. & Sma. 66. 

Bacon and Roxburgh for theoffidid manacer. 

The Vicb-Chanobllok' laid he thoWhtk and 
probably the Master thoaght, that, independeatlr of 
the 34Ui clause, there wai no qnestion at idl in 
the case. The language of the deed was clear, inde- 
pendently of that claow. Then upon the construc- 
tion of the 34th clause, if penons would use sodi 
language as was used here, it could not be matter of 
sorprise that different minds should ditfer in their 
interpretation of it. It sg happened that the inter- 
pretation his Honour put upon it was not that which 
the Master had put upon it. As his Honour read 
the deed, the 34th clause ought to be construed in 
accordance with the 13th, and so as not to contradict 
the 13th. The term " liability," in the 34th claow, 
he thought, ought to be coBstroed with r^grenoe to 
the 13th clause, and with refesence to the words 
"penalty" and "forfeiture" which preceded it in 
tiie 34th clause. He thought, therefore, this gen- 
tleman's name could not stand on the list. Ha. did 
not wonder that there should be a difference of 
opinion upon words so azpresaed. The costs 
ooma out of the estate. 

Wedneedag, March 26. 


^ne* and Seeoveriee Act — itarrUi MHWMm— 
Betertioiuerg imtereit. 
Where a married teomtm ie enUtled to m portimt to 
t* raited out of real eekUe at a Jutwre period, 
m deed eaeeuied by her and her kuebemd and the 
Other partite entitled to the eetate, end aeknetp- 
ledged by her under theZtfi Wm. 4, e. 7*, will 
not bar her intereet. 
Semble, that her intereet eotdd not hate been 
barred by fine before the ttatute. 
By indentures dated nspecthrdy the 2nd and 3rd 
days of March, 1427, certain real estate in the parish 
of Brfsrd, in the connty of B ew toiJ , and el a nwhere, 
was settled and assured to the use of Thomas Eckley 
and William Hobby, their hdrs and asawna, upon 
trust a» to the prendaaa situate at Byfor^ by nle, 
mortfaga, demise, lease, or other disposition, of a 
sufficient part or parts thereof, or by all or any one 
or more of the said means, to raise any sum or 
sums of money, for the pnpose of paying the 
costs, charges, and expenses, of aad incident to 
proparing and executing the said indenture, and 
brying the fine therein mentioned, and the costs in- 
cident to the execution of the said trusts, and next 
the mortgage and interest thenoD thareiB mentioned, 
and subject to the said trusts upon trust out of the 
rents, issues, and aannal profits of the said pieraiaes 
in the parish of Byford, to pa^ and keep down the 
iaterest on the said mortgage, and the mterest on 
aey mortgage to be created under the trusts afore- 
said, and subject thereto, to pay and permit Jane 
Hobby, the wife of Riehurd Hobby the elder, since 
deceased, to receive and t^ce the rents, issues, and 
annual profits of tlM same premises daring her na- 
tural life for her separate use, withont power of anti- 
cipation ; and after her decease, then by mortgage, 
sale, demise, lease, or other disporition of a sufficient 
part or parts of die same hereditaments and pre- 
mises, or by aU the said ways and means, to lery 
and raise, or borrow, and take up at niterest, any 
sum or sums of money which the trustees 
or trustee mi(^t think proper for the purpose of 
paying, and aeeordnigly to pay when and so soon as 
Thomas Bythell Hobby and Kichard Hobby should 
both attain the age of twenty-one years, or die, or 
one of them shoi3d attain the said age and the other 
of them die under that age, tiie sum of 25(U. to Mary 
Am Hobby (afterwards Mary Ann Hughes), ho- 
executors or administrators, subject to a gift over to 
Sarah Ann Hobby in case the said Mary ^n Hughes 
should die under the age of twenty-one years with- 
out having been married, and the sura of 250/. to 
the said Saiah Ann Hobby, her executors or admi- 
nistrators, subject to a ^ over to Mary Ann 
Hughes, &c., and in case there should thereafter be 
any cUldreo of the said Jane Hobby by her said 
husband, then also tha asm of 200/. for such fature 
child or children, &c. and subject to the trusta afore- 
said, upon trust as to part of the said hereditaments 
in the parish of Byford, for the said Richard Hobby, 
his heirs and assigns, and as to the other parts of 
the said hereditaments, for Thomas Bytfaell Hobby. 
And by the said indenture, similar tmsta were de- 
clared as to the other hereditaments, and the trustees 
were empowend to decrease the amount of the 
daughters' portiensi and also, at the request of Jane 
Hobby, dnrinijr bar lifey to sell or convey in exehange 
the said hereditaments, add they were directed to lay 
out the money to arise by such sale in the purohaie 
of other lands to be vested in the trustees upon the 
trusts to which the lands sold were then subject. 
The trustees, on the 1st of February, 1832, sold a 
large portion of the lands for 3,050/. and after dis- 
charging the mortgage debt existing on the said 

laada, the sua of 1.250/. the Naidaa of tha par- 

ohaae-money waa paid by the tnisteea to Francia 
Collins, the attorney of Riohaid Hobby, the elder, 
and Jane Hobby, r^n his undertaldng to place 
out the same on security. This sum waa not 
invested by Collins, and by an order made 
in this cause on the 28th of February, 
1837, Collins was ordered to pay into court 
500/. admitted by him to be in his possession, and 
tins sum having been pidd in by him, was laid out in 
tiie purchase of 550/. 19s. 4d. Bank Three per Cent. 
Annuities. In February, 1840, Collins became 
bankrupt. By a decree made on the 23rd of Novem- 
ber, 1841, Collins and the two trustees were declared 
iointlv and severally liable for the 1,250/. and certnn 
inquiries were directed to be made by the Master. 
Ridiard Hobby, the elder, died on the 28th of 
January, 1842, without having any child bom sub- 
sequently to tiie date of the settlement. Ridiard 
Hobby, Thomas BytheU Hobbv, Mary Ann Hughea, 
and Sarah Aim Hobby, tha only children who lived 
to attain the aae of twenbr-one years, attained that 
age in or previously to 1843. Sarah Ann Hobby 
died in March, 1843, and her mother, Jane Hobby, 
took out letters of administration of her estate. The 
remainder of the hereditaments were sold in January 
I84&, and the proceeds were divided between Jane 
Hobby aad her children in certain agiead pro- 
portions. On tha I4tii of June, 1845, Mary 
Ann Hughes was married to Edwin Hoghea. Then 
being no probability of obtaining any forther son 
from CoUins's estate, or tnm eitMr of the tnistaes, 
one of whom had taken the benefit of the Insolvent 
Debtors' Act, Jane Hobby, Richaad Hobby, Thomas 
Bythell Hobby, Edwin Hughes, and Mai^ Ann his 
wife, by an indenture dated tha I2th day of Febru- 
ary, 1851, and duly acknowledged by Mary Am 
Hughes, in pramanoe of the Act lor the abolition of 
fines and raooveries, &c. respectively assigned, rs- 
leased, and disposed of the sum of 728/. lis. lid. 
Bank Three per Cart. Annuities (to which sum the 
550/. 19s. 4d. had by subsequent investments been 
increased), and 95/. 9s. 6d. cash to Robert Higgins 
and John Fbilpotts, upon tmst, after pajrment of 
costs, to divide the same in certain, proportions. A 
petition waa now presented by Jane Hobby, the 
tenant for life, Richard Hobby, Thomas BytheU 
Hobby, Edwin Hughes, and Msry Ann his wife, 
RobcD^ Higpns uu John Fhilpotts, praying that 
after taxation and payment of costs, tlis resune of 
tha sum of 728/. lis. Ud. stock might be paid to R. 
Higgins and J. Fhilpotts, as such trustees, and that 
all nuther proceedings in the causes might be 

Winttanley, in support of the petiiion, said that 
Mrs. Hughea coidd dispose of her revsrsionarT 
interest in this sum, it being subject to be laid out 
in land. He cited Goodrich v. Shadbolt, Free, in 
Ch. 333; May v. Roper, 4 Sim. 360; Forbee v. 
Adame, 9 Sim. 468 ; and the Fmes and Recoveries 
Act (3 & 4 Wm. 4, c. 74), ss. 1 and 77. 

The Vick-Chancbllor said that it might be 
assumed that tha statute did not narrow the right j 
that is, that a married woman might bar or convey 
in aU cases in which she could bar or convey by fine 
before the statute. 

Winetanley contended that by a fine a married 
woman could bar a reversionary interest in land, but 
if not, the statute of 3 & 4 Wm. 4, c. 74, bad ex- 
tended the power, for, by the 77th section, she was 
enabled to dispose of any estate in any lands, or any 
moneys subject to be invested in the pnrchsse of 
lands. He referred also to the 8 & 9 Vict, a 106, 
ss. 6 and 7, 

The Vicb-Cbancillou said, that ss he under- 
stood it, this was a sum charged on land, in which 
the wife had a reversionary interest, and he con- 
sidered that she was unable to deal with it. He 
must tlierefore refiise tlie prayer of the petition, 
His Hononr added that the point was not new to 
him ; he bad often considered it, and was cleariy of 
that opinion. _____ 

▼. o. utttB 'OBAarwoskTK'B cmniT. 

Beported by W. H. Bainm, Kmj. of Liaoola's-iaaL, 

Jan. 31, Feb. 23, 25, 27. oiuf March 22. 

SoDTH Stapfokbshibk Railway Compant 

V. Hall. 

Irgurioutly affected— Landt Claueee OoneoUdation 
Act, ISa— Injunction. 

A railway company, qfter their vorkt had been 
completed, reeeiced a notice from ownen in fee qf 
land in the neighbourhood y the railway, that by 
the execution of the workt, certain landt were 
damaged and injurUmtly tweeted, and demanded 
compeneation to the amount of 550/. and that un- 
hit luch eum wot paid by the company within 
twenty-one dme {according to the ttrme of the 
6Sth teetion qflhe Lande Claueee Cantolidation 
Act), the company were required to eummon a 
jury to ateeee the amount of compeneation. The 
company immediately fled their bill for an in- 
jemtlion to rtitrain the lartdownere from further 

proeeedinge under their notice— denyieeff that ameh 
lande were injuriouely affected. An ex parte m- 
junetion had been granted. On motion to die. 
eohe the timmeMea, it teat 
Held, that whether the landowner woe or eeaa net 
entitled to compeneation woe a purely If gat jfoea- 
tion, and that there eeae nothing in tha matte of 
the landownere to preclude them froem jrieims 
•tubiM* iifmre a jury qf their right to a otp wi 


This was a motion to dissolve an ex parte injunc- 
tion which had been obtained by the railway cob- 
puiy to restrain tiie defendants. Hall, Bobinsm, 
and Knight, fipom taking any proceedings . 
the company under a notice hereafter nventioasi 

The bill waa filed by the railway company, uUi . 
after setting forth the principal parts of tl^ Aen t( 
Parliament under which the railway ocMtnpaoy « 
constituted and regulated, stated that, by the fib 
section of the Lands Clauses ConsoIidatioB Act it 
waa enacted "that if any party shall be entittodtoiy 
compensation in respect of any lands or any aitaat 
therein, which shall nave been taken for or ii^jnfioaAr 
tSeOiei by the execution of the worka, and far 
whidi the promoters of the undertakm^ diall oat 
have made satisfaction under the piovisionB ot ttr 
Act now stating, or the special Act, or any Act is- 
coiporated therewith, and if the compenaataoa 
claimed in such case shall exceed tho stun of 241 
such party mar have the same settled either byaiii)- 
tration or by the verdict of a jury, as he shall tkist 
fit; and if the party entitled, as aforesaid, dean ts 
have such compensation settlied by a jury, it sUI b 
lawfol for him to give notice in writuiK of sock tt 
derire to the promoters of the undertudng, statiif 
sudi particulars as aforesaid, and unleaa die praao- 
ters of the undertaking be willing to paj the anna* 
of compensation so dumad, and entv into a wiiBa 
agreement for tiiat purpose, they shall siAb 
twei^-ana days after the receipt of sodi nc(i« 
issue their warrant to the sheriff, to sanunoa a pt^ 
for settling same in manner in the now statiKiii 
provided, and in default thereof tlley diall be Wt 
to pay to the party so entitled as a^ataai, tb 
amount of the compensation so claimed, sad Ike 
same may be recovered by him, with cotix, bysefia 
in any of tiie superior courts." That thy pn- 
ceeded to make aad constmct tha tAtt 
andworksasby said Acts authorised tobensdcvM 
constructed aocording to same Acts o€ ttdmaett 
and pursuant to theiwovisions in that beMflhwh 
contained. ThatbytbeplansandsectiaaiodtveBM 
by plaintiilii, as steited in said first Act o^^^ 
ment, it appeared that the railwvy tiier^ uiats- 
ised to be made and constructed was intaM A 
cross a certain road or way leading from Ha <ilhp 
of Streetbay, situate in the parishes of St. Vsiaa, 
tichfield, and Whittington, or one of them, in the 
county of Stafford, to a certain farm-hmie at 
lands called Hill Cottage Farm, situate in said sew- 
ral parishes of St. Michael, Lichfield, and Whi^Bf- 
ton, respectively in said county, on a level and aeMt! 
at right angles. That plaintiffs had nude oil 
railway across such road or way pursuant to oii 
Act and within the limits of deviation diewn by to 
deposited plan therein referred to, and that » 
railway as actually made and constmeted by ^>>>>- 
tiffs aqd its situation with reference to said tw at 
way and said village, and said farm-house and lands, 
called Hill Cottage Farm respectively, was shwo 
upon the plan to the bill annexed, and paitiaiinT 
described. That defendants. Hall, Robinson, ui 
Knight, therein particularly described, were inteieiMl 
in, and they allege that they are the ownen in &< 
according to the custom of the manor of LoncdM, 
in the county of Stafford aforesaid, of said win- 
house and hinds, called Hill Cottage Farm with thek 
appurtenances aforesaid. That the distance froa 
s<dd Hill Cottage Farm-bouse to the boundszy Bv 
on the south side of said railway as constnutt^ 
at the nearest point was about 710 feet,' and thatw 
part of said farm-house and lands, called SO 
Cottage Farm, or of the appurtenances theretb be- 
longing, hath been ixSaem or used, or waa requiiedfv 
the purpose of the said railway and works by mm 
first-mentioned Act, or by either of the otbor 01 
plaintiffs' Aots of Parliament, authorised to be oa- 
stmcted, or for the execution of such works, or, n 
fact, and that no part ofeuchfarm-houee and /«* 
Jtad been or wat injuriouely affected by the eo»- 
etruction of the laid railway and worke, orbylki 
execution qf the laid workt, aceordinifto the tret 
intent and meaning of taid Railway! Cbaaa 
Coniolidation Act, 1845, and the Lande Cbaua 
Coniolidtttion Act, 1845. or either of them ; and esia 
Hall, Robinson, and Knight were not, nor was <"■ 
was any or either of them entitled to any eomp<a*<- 
tlon in respect of said fbrm-house and lands calin 
Hill Cottage Farm, or of their or his interest therein. 
But nevertheless said Hall, Robinson, and Kni^t, 
on 12th December, 1850, served or caused to be 
served on plaintiffs a notice in writing dated tix 
2nd of same month, which notice was in the follov- 
ing words:— "To the South Staffordshire Hail*^ 
Company. — ^Whereas, in exercise of the powers coo- 

Digitized by 


MAmcM' 89.] 





talned in the Acts of FirrHsment relating to the 
South StaSiordshire Railwa; Company, yon, the said 
company, have by execution of the works of and 
belonging to the said railway damaged and injn- 
riooaly affected certain lands called Hill Cottase 
Panni sitnate in the parishes of Whittington and at. 
Slichael, both in the connty of Stafibra. Now we, 
the nndeTsigned John Hall, 'William Robinson, and 
Joseph Kmght, being the owners in fee, according 
to the custom of the manor of London, in tiie 
connty of Staiibrd, of the said lands (which are copy- 
hold') , do hereby, in imrsiiance of the ststntes in that 
case made and proriaed, give yon notice that we re- 
qmre yon to pay ns compensation in respect of the 
Bsdd lands, -which yon have damaged and uynrionsly 
affected as aforesaid, and in respect of our interest 
therein, and that the araonnt or our claim for com- 
pensation, by reason of the premises, is 550/. And, 
further, take notice, tliat muesa yon, the said com- 
pany, are willing to pay to ns the amoimt of the 
compensation so claimed, and shall enter into a 
written agreement for that prarpose within twenty- 
one days after the receipt by yon of this notice, then 
it is oar desire that the amount of the compensation 
to be paid to ns b^ yon, by reason of your haying 
damaged and injnrionsly anlMsted the said lands as 
afbreaaid, shall be settled by a special jury, according 
to the provisions contained in the Act or Acts of 
Au^ument in that case made and prorided; and if 
yon, the said company, fldl to pay the said sum 
of 55W. or to enter into sura agreement as 
aforesud, then and in ;tlwt caae we do heroby 
request and require ^on, within twenty-one days 
after the receipt of this notiee, to issae yonr war- 
rant to the snerifF of Staffordshire, or otiter proper 
officer, to snmmon a special jury for settling the 
amonnt of the said compensation as is in the said 
Act or Acts directed and provided. 'Witness onr 
hands, " Ac. That said nsu»'waa accompanied by 
a letter, dated 12th Deoembar, 18S&, and written and 

S' ^ed' by George Birch, jnn. the solicitor of said 
ril, Robinson, and Knight, and addressed to the 
secretsiy of the South Staffbrdshir^ Railway Com- 
pany as follows : — " Lichfield, IZth December, 
1B50. Bii^— Booth's trustees and the Sooth Staflbrd- 
shire Railway Company^— Serewith you' will reeeiiw 
notice of the amonnt ormy dieBti^ olaim for d>mag» 
sustained by the South Staflbnlshire ^Mlway Com- 
psBy havfaig crossed the only approach to their ihrm 
on the level. This claim is made witiiont prqudice 
to and independently of my i^ibnts' right to have the 
crossing made as convement as a level crossing is 
capable of being made. Tie cirief objeetions to the 
croeang in its present state are, that the cottage 
where the gatekeeper rcsid ea-is too far distant ftom 
the gate, sih] commands a very indifferent view of 
the lln* and the approach of the trains, and that wiUi 
the present gates, which, when opened, do not ex- 
tend aeross the line, the driving oiP cattle and other 
stock to or from the tarm is attended with gmt risk 
both to the occnpier and the railway company. Your 
obedient servant (signed), Geone Bircn, jun. To 
the Secretary of the Saatk Stanbrdshire Railway 

Hie bill then u ; pi mil} charged that no damage 
orinjnry whatever had bieen done by the construc- 
tion of the railway and worics to defimdants' said 
lands or right or easement appurtenant thereto — 
and that a jury nmmumed or qfbraaid wonld tumt 
tto power or aulhority to determine or entertain 
the preliminary qnettton, whether taid- dtfendantf 
were or were not entitled to any cempenmtian in 
ra^eel of the premieet. The bill then prayed for 
an mjunction to restrain the dcftodants fh)m rarther 
proceedings under the notice, or from taking any 
proceedings under the Lands CUnses Consolidation 
Acttbr settling the amomit of compensation. Affi- 
davits had been filed in support of these statements 
in the bill upon which the eT parte iivjunction had 
been obtained. Affidavits had also been filed on the 
^Jtof the defendants, which raised the issue as to 
WMttier damage or injury to the defendants' Und 
had been done, and as to the amount of compen- 

</«. Par*«r and Willeoch, in support of the 
Jjonon to dissolve the injunction, contended that 
they w as a remedy at law. If the defendants had 
teeelved no damage, tile jnrv mi^t find that tiiere 
WMno damage. Ttiat tiie question onglit by some 
jneaaa to be put in a course of adjudication Wore a 
ponnaon Law tribunal, and that tiie order for the in- 
^mction ought to have been accompanied by some 
JoectiOB to that eflfecti That here there was a 
vommon Law right, and a Court of Equity had no 
power to takeaway a legal right, and Uiat the com- 
•non h)junction to stay any execution on the judg- 
ment would have answ^ed all the purposes of 
justice. ^ ^ 

■Bf<*W/and Speed, in support of the injunction, 
^Btendedthi^tlie principle on which equity inter- 
'■J' to restrain parties from improperly exercising 
* "^montLaw right was clearly laid down in BlaJte- 
""•Jfv. Olamorgan»h(re Canal Company, I My. & 
*• 154, and that the Lord Chancellor Cottanham 
"M oeeided Sntithft case on that principle. They 

observed that here tiie railway had been long com- 
pleted, and that no application had been made by 
the defendants for compensation during the progress 
of the works. That they had stood by and not com- 
plained of the company till the railway was com- 
Jileted, and that thereby they had been guilty of 
ttchet. That the defendants had not attempted to 
shew that the company had done anything that was 
wrong or beyond the powers given them by their Act 
of Parliament. That this case was identical with 
Smiih'i case, and was distinguishable from Galtk^a 
caae, in which the present Lord Chancellor had 
given a contrary decision, as that was a case where 
the works were in progress, and not like these, 
which had been completed. 

Parker, in reply, said that the Railway Acts 
mnst be construed strictly against companies, and 
liberally in favour of an inaividnal. That the sheriff 
was the party intrusted by the Legislature to deter- 
mine the question at law as to compensation or not. 
'The cases cit»l and commented upon at great 
length were Cowling v. Great Northern RaUway 
Company, 14 Jnr. 128; Reg. v. The Baitem Coun- 
ties Railway Company, 2 Q.B. Rep. 347 : Reg. v. 
Lancatler Railway Company, 6 Q.B. Rep. 159; 
Cougil V. London 'and Blaeiwall RaUway .Com- 
pany, 5 Mann. & Gr. 219 ; Smith v. London and 
North-Wetlem Railway Company, 1 Hall & Tw. 
364; S. C. 1 Macn. & G. 216; Harmon v. Jonet, 
lCr.&Ph.299; East and Wett India Dock Company 
V. Oattke, MS. judgment befbre Lord Truro ; Pimm 
V. Uniboa, 2 Hi. 653; Thickneaer. Lancatler Hail- 
way Company, 4 Mees. & W. 472, 492 xHutton v. 
South-Wettem Railway Company, 7 Hare, 279; 
East and Weet India Dock Company v. Patterson, 
14 Law T. ,369 ; and the several clauses of the loads 
Clauses Consolidation Act. 

Saturday, Starch 22.— The 'Vice-Chancellob, 
»fter stating the general facts of the caae and the 
nature of the motion, said, — The plaintiffs contended 
that the defendants' property was not injuriously 
affected within the meaning of the 68th sectiuii of 
the Lands Clauses Consolidation Act. The injunc- 
tion had been granted on the authority of the deci- 
sion of Lord Cotteaham in the case of TAeLoniInn and 
North-IVettem Railway Company v. Smith. Tliat 
wasa decision of the late Ixwd Chancellor on appc:)!, 
and upon the application being inadc in tliiii case, he 
(the 'Vice-Chsncellor) had acted upon it without 
very attentivdy considering whether, if the question 
had been originally before him, he should have coma 
to the same conclusion. In the old state of 
the bw before the statute in question, a party 
claiming compensation for iijjaries or damage 
to his property from the ezendse of the powers 
given by Parliament in such cases, applied fbr 
a mandamus to compel the company to take steps 
to summon, a jury, and upon that application the 
right of the party to compensation under the Act 
was judicially determined, and the mandamus was 
issued or refused according to the circumstances. 
Under the Lands Clauses Consolidation Act, the 
Older of proceeding was changed. A person clum- 
ing paymient or compensation might fix hia own 
amount, and the company must, in twenty-one days, 
either pay the amount so fixed, or summon a jury 
to assess the true amount. If the company sum- 
moned the jury, and the amount was assessed, they 
might leave the person to bring his action for that 
amonnt, when the question of his right to any com- 
pensation might be tried, or if they £clined to sum- 
'mon a jury he might brin^ his action for the amount, 
according to his own estimate, and then the right 
'was tried at'onoe. There is no mistaking the grounds 
upon whidi Lord Cotienham proceeded in Smith's 
case. Alterinantioning the supposed InconTcnience 
which might result in the old state of the law. Lord 
Cottenham proceeded thus:-r"So stood the law. 
llien comes an Act of Parliament, which, for the 
purpose of correcting that supposed evil, creates a 
much greater one, by depriving the company of the 
means of ascertaining the question of right befoie 
they go to the sheritTs jury to assess the amonnt of 
compensation. That circumstaace algna, if it were 
not within the genatal jurisdiction of the Court, 
would be quite sufficient to justify the interposition 
of this Court, because it would notbejftst to. permit 
a party to be involred in that sort of htigation with- 
out first ascertaining whether the right claimed 
existed as between the party and the compaoy ugajnsl-. 
whom the claim is made." Now, with the most 
profound respect for ev^rvthinit that fell from that' 
most eminent judge, be (the 'Vice-Chancellor) could 
not agree in that reasoning. The change in the state 
of the law might be unwise, but it was the Act of 
the Legislature. The Legislature painted out the 
steps which should be taken, and what right 
had this Court to say that the party should 

in such a case. In this view he was emboldened by 
the late caae of East and West India RaUway Cbn^ 
pony V. Gattke, before the present Lord Chancellor, 
who had discharged an injunction gnmted by 'Vice- 
Chancellor Wigram, on the authority of the case, 
before Lord Cottenham. He admitted the force of 
the reasoning in Gattk^i case ; and the only thing 
he could venture to dissent from was the existence 
in principle of the distinction which the present 
Lord Chancellor had drawn in his judgment between 
that case and Smith's caae. I think there is no 
distinction in the circumstances whether what has 
been done by a railway company is a public wrong 
or a private injury. However, whether there was 
any such distinction or not, there was nothing in the 
case now before him to exclude the authority (rf 
Gattke' s caae. In that case the defendant made a 
claim against the company for the sum of 4802. as 
compensation due to aim for damage and injury 
alleged to have been sustained in consequence of the 
dust and dirt occasioned by the company having 
damaged his goods, and by reason of his custumen 
lukring been compielled, by the obstructions occa- 
sioned by the company's works, to quit the aide of 
the road on which the defendant's shop was situated 
and to pass on the opposite side, by reason wfaareoC 
he alleged, that dunng several weeks he had sus- 
taineil great loss in his trade, and had been 
injuriously affected and iqjured by the company 
having stopped up a lane or passage, ailong 
which he was entitied to a right of way, 
to an entrance at the back of his premiass. Ihe 
present Lord Chancellor, in his judgment, says—" If 
the Legislature has made it the du^ of the oompaay 
to issue the precept to compel payment of the com- 
pensation in tiie event of the plaintiff being foniid 
entitied to the performance of that duty, that cannot 
operate as an admission on the part of the company, . 
who have no discretion after the compensation jury 
shall have decided that he has sustained dama^ far 
which he is entitied to be compensated, the nlsimant 
is to enforce payment by a formal proceeding for that 
purpose,— which used to be by a mandamus ; and if 
the jury had no jurisdiction to decide upon the right, 
it followed that that question of the right might be 
raised upon the return to the mandamus. But since 
the'decuion of Cougil v. Tlu London and Blackwall 
Railway Company, 5 Mann, and 6. 219^ and WU- 
liams V. Jones, 13 Mees. and W. 628, it seems the 
remedy of the daimant is by action upon tiie judg- 
ment,' and he dissolved the injunction granted by 
'Vice-Chancellor 'Wipom in that case. I think tiija 
decision completely m point, and I must dissolve the 
injunction wnich I granted upon the authority of 
SmiUfs case in the present one. 

Injunction dissolved, but vitAout eoslt. 

®omnioii ftalD €taurt». 

oeosx or qtrawara saorox. 

Bsp or ted by Asxx Birrusiox and Paui, f iawstt, . 
Baqn. Barri>t«n-a(-Ira«. 

Jan. 31 and Feb. 22. 
Costs— Payment into Court— Rule T. T. 1 Viet. 
In an action of debt for work and labour, the de- 
fendant pleaded except as to 10/. nunquam inde- 
Ditatns ; aa to the excepted 10/. payment qf 101, U. 
into court! with a further plea of payment as to 
another and different \0l. parcel. See. The plain- 
ts took out the 10/. paid into court, in satisfac- 
tion <^the causes inaction to which it was pleaded, 
and joined issue e» the two other pleas.. Tie de- 
fendant failed upon the plea of the general issue, 
but succeeded upon Iks plea <jf payment, md 
became entitled to the general costs qfthe cause .- 
Held, that the plaintiff was entitled to all his costt 
as to such causes y action in respect qf which 
the money was paid into court, up to the time t^ 
the replication to the plea of payment into court, 
including the costs qfsuch replication. 
This was a role obtained by the plaintiff, caUng-' 
upon the defendant to shew cause why the Master 
should not review his taxation of the costs herein. 
The action was in debt upon a surgeon's bill, with 
one count only for work and labour done, and goods 
sold and delivered. The defendant pleaded, I. (ex- 
cept as to 10/. parcel, &c.) utmguam indebitatus; 
^.^As to 10/, (other and different parcel, &c. from 
tliat before excepted), payment ; and, 3. As to the 
si^cepied 10/. payment into court of 10/. Is. in satis- 
Csc^ibn ',o{ all causes of action in respect of the said 
Simv'qf IQI. and all damages sustained by its non- 
payment. , The plaintiff took issue on the first plea, 
traversed the payment alleged in the second plea, 
upon which' traverse the defendant joined issue, and. 

„ ._, ,._. as to the tHM plea, the plaintiff replied that he 

assert the legal right which the Act gave accepted and t^k out of court the money so paid in. 

him. [The 'Vice-Ciianoellor then read at leagtlTthe I in satisfiiction df^e causes of action in tiie plea men- 
68th section.] The case had been likened tolthe relief tioned, and praVe^ judgment for his costs aud^chaiges 
given by this Court against penalties ; but the cases in that behalf. ' , ^ 

were not analogous. It was rather making than ad- At the trial the matter was referred to an arbi- 
ministering the law to restrain the legal proceeding trator, who found fdY the plaintiff as to the first 

Digitized by 



[NTo. 417. 




ianie, tiz. tiat the defendant was indebted to a larger 

amount than lOi. that is to say, to the amount of 
201. and al to the second issue be found for the de- 
fendant. The Master taxed the defendant all his 
costs of the action except those incnrred in respect 
of the first issue, and he taxed the plaintiff his coirts 
upon the first issue only. The plaintiff claimed to 
have also the costs of the cause up to the time of 
the payment of the money into court ; but this claim 
the Master disallowed, ana thereupon the present rule 
was obtained. 

G. R. Clarkt shewed cause. 
Prtntiee in support of the rule. 
The matter is so fiilly discussed in the judgment 
of the Court that it is unnecessary to set out the 
aiKuments. The Rule T. T. 1 Vict. ; Harrimn v. 
Watt, 4 D. & L. 519; mi AT Lam ^. PhUtipt, 7 
C.B. 817, were referred to. Cur. adv. vult. 

Satvrday, Feb. 22.— Pattesos, J. deliTercd the 
judgment of the Court.— This was an action for work 
and labour done, &c. The defendant pleaded, as to 
all but lOZ. never indebted ; secondly, as to another 
and different sum of 10^ payment; thirdly, as to 
the 10/. excepted in the first plea, payment into 
court of 10/. Is. and that be never was indebted to 
the plaintiff in more than 10/. in respect of the said 
sum of 10/. and that the plaintiff had not sustained 
greater damages than Is. In respect of the non- 
payment of that 10/. the plaintiff replied, joining 
issue on the plea of never indebted, and traversing 
the plea of payment ; and as to the plea of payment 
into court, accepted the sum paid in, and prayed 
judgment for the costs in that respect At the trial 
a verdict was found for the plaintiff on the plea of 
never indebted to the extent of 10/. beyond the sum 
paid into court, and for the defendant on the plea of 
payment. The Master, on taxation, has allowed the 
• oefendaot all the costs of the mit, deducting only 
the plaintiff's costs as to the issue on the plea of 
never indebted. In so doing he has followed the 
last decision in this Court, though there have been 
one or two former decisions the other way. A rule 
niti was obtained for reviewing this taxation by 
disallowing the defendant all his costs anterior 
to the plea of payment of money into court, so 
far as relate to the causes of action to which 
the plea was pleaded, and allowing the plaintiff all 
Jiis costs as to such causes of action up to that time, 
.riodnding the costs of the replication to tlie plea of 
■-IWfinent into court. The question turns on tlierule 
. of 'Trinity Term, 1 Vict, which is this: "The plain- 
tiff, .after the delivery of a plea of payment into 
cpiut, shall be at liberty to reply to the same by 
aceepfinc the sum so paid into court in fall salisfac- 
- tion,.aii9.discharge of the cause of action in retpect 
<^ nhieh U bai been paid in, and be shall b« at 
Uberty in that case to tax bis costs of suit, and in 
case of .nonpayment thereof within forty-eight hours, 
to ngnjadgmcDt for the costs of suit so taxed, orttie 
plaintiff noij reply that he has sustained damages, or 
that the defendant was and is indebted to him to a 
greater amount than the said sum ; and in the event 
of an issue thereon being found for the defendant, 
ibe defendant shall be entitled to judgment and his 
costs of suit." By the language of this rule, it is 
plain that it contemplates payment into court either 
m respect of the whole causes of action, or in respect 
of the amount directed by the Conrt ; and in either 
case it gives the plaintiff his costs of suit, if he accept 
tiie money so paid into court in discharge. It is 
equally clear, it gives the defendant his costs of suit 
only where the plaintiff replies damages, or a debt to 
• greater amount, and there is an issue thereon, that 
la on such allegation of a greater amount of debt. 
In tlie present case|there is no such issue; therefore it 
Is not within the words of the latter part of the rule ; 
but it is within the words of the earlier part of the 
rule, because the plaintiff has accepted the money in 
' discharge of the cause of action in respect of which 
it was paid into conrt. To such a plea as the present 
the pluntiff could not reply a greater amount of 
d^t, since it is impossible for a person to be in- 
debted in more than 10/. in respect of 10/. 
The defendant by adopting this form of plea has in- 
sulated his defence to one part of the declaration 
&t>m the re.<it, and so prevented the raising such an 
issue as would bring the case within the latter part 
of the Toia if found for him, or give him the costs of 
' the suit. If he had pleaded to the whole declaration 
i payment into court of 10/. Is. and no debt ultra 
that, he would have driven the plaintiff either to 
accept that sum in discharge of the causes of 
action, or to have replied a debt ultra, and to have 
incurred the ri«k of having to pay all the costs of 
suit if he had failed on that issue. Hera the de- 
fendant could not so plead, because he was indebted 
at one time in a greater amount than the sum paid 
into conrt, and was obliged to plead as he did to get 
rid of that greater amount by a plea of payment, 
which coold not be joined with a plea of payment 
into conrt upon the whole declaration. It comes to 

the plaintiff to the alternative of accepting in dis- Bl. 358 ; Goring v. Howard, 16 Sim. 395 

cha^e of his whole demand whatever sum the de- 1 Robtnion, 2 Mer. 363. Ctar. ado. i mW 

fendant chooses to pay into court, or to proceed for JTTSOHENT. 

more at the risk of the costs of the snit. If, bow- Friday, Deetmber 6.— Lord CAirpBKi.1.. _ CJ., 
ever, the original debt is larger than the sum the delivered the judgment of the Court. This was 
defendant chooses to pay into court as the balance, a special verdict upon the constroctioii of a win, 
and thus he is obliged to plead an affirmative plea, ' and we are of opinion that the lessors of the 
and he pleads to r^oce the original debt, he neces- | plaintiff are entitied to our judgment. First, we 
sarily insolates the sum so paid in from the residue have to examine their claims to one-twelfth of the 
of the declaration, and so entitles the plaintiff to freehold property contained in the devise to Biixa- 
accept that in discharge of the cause of action beth Mana DoUey. This depends upon the liiinls- 
in respect of which it is paid into court, and tion over, in case all the children of Klizabeth 
to receive all the costs thereon. The authorities Maria Dolley should die under the ages specaficd. g 
are quite in accordance with this view. Harriton v. if she should have none. If valid, in the eresti 
Watt, 4 D. & L. 519, is identical with the present which have happened, this would vest one-third ia 
case in all points ; Goodee v. Goldsmith, 2 M. & Anne Dolley, and, on her death, die twelfth daiaaed 
W. 202, is to the same effect. M'Lean v. PhUlip*, in Mrs. Evers (late Mary Anne r>dUey), aat 
7 C. B. 817, proceeds on the very distinction above ! of the lessors of the plaintiff. On the part of 
pointed out, though it was not expressly noticed by I the defendant who claims under the eldest son of 
the Court, for there the money was pleaded to the ' the heir at law of the testator, it is first contended, 
whole declaration, and the replication claimed that the limitation is void, because it coold only tab 
damages ultra. Neither is the distinction so frivol- effect by way of executory devise, and that tke 
ous a one, in reference to the present rule of Court, 
as at first sight might, perhaps, be thought. Sup- 
pose to a decUuation for goods sold and delivered, 
and for work and labour, the defendant pleads pay- 

ment into conrt as to the goods sold and delivered, , „ 

and never indebted as to the work and labour, the j Court on this very will in Doe dtm. Dolley t- Ward, 
plaintiff accepts the money paid in discharge of the 9 A. & £. 582. The subsequent limitatum, then- 
acconnt for goods sold and proceeds to trial as to I fore, could only have taken effect by way of ezeco- 
the work and labour and fails; it seems clear he j tory devise; and as the gift over waa upon the desth rf 
would, under that rule of court, be entitled to the | the children of Elizabeth Maria, if a son or 

executory devise would be bad, as being too i 
If Elizabeth Maria had died, leaving children, tim 
objection would have been U^ ; for npon her death 
the property would have vested in them as tenasti 
in common in fee, according to the decison of tia$ 

costs as to the goods sold and delivered. But sup- 
pose the defendant paid that sum into court as to 
the whole, and the plaintiff had gone on for the 
larger sum and failed, he would be within the mean- 
ing of the latter part of the rule. Whether it would 
be right or not to alter the rule, so as to give the 
plaintiff costs up to the time of payment into court. 

under the age of twenty-three, or if a d a n^trr or 
daughters under the age of twenty-one, this would 
have been contrary to ibe rules a|unst perpetuities, 
and void. But in the event which happoied, the 
contingent remainder to the children of Hiia/ietJ i 
Maria never took effect, die never having had a 
child ; and the question is, whether in this erent toe 

where it appears plain he was right in bringing the | subsequent limitation might not take effect ass ana- 
action, it is not for us to determine; but as the rule ! tingent remainder, sopiKNrted by the life etatt^ 
now stands, we are of opinion such a case as the Elizabeth Maria, and vesting immedistely on uib 
present is not within the latter part of the rule, determination of that life estate. Although, whoe a 
though it is within the former, and the taxation must j fee is given by a vested limitation, a mm j an H ir nfea 
be reviewed. It is not contended that the defendant i it must be an executory devise ; and if it "•^ 
is entitled to costs subsequent to the payment into remote, this and all subsequent remainders are tcu, 
court, Independently of that rule. The rule must be if a fee be limited in contingraicy, and the estate M 

made absolute. 

Rule abtolute. 

Nov. 19 and Dec. 6. 

Doe dem. Evers et Ux. v. Challis and Anotheb. 
Will — Remoteneti — Executory deviee. 

A tntator devised his estate to his daughter JB.for 
life, and after her decease to such <)fker children 
who should live to a prescribed age, their re- 
spective heirs and assigns, Sep. ; and in east all 
E.'s children should die within the prescribed 
age, or in case she had none, then the testator 
gave the estate to A.,'B., and C.for their respective 
lives, and upon their decease he gave the share of 
such qf them so dying unto his children nho 
should lite to a prescribed age. And in case of 
the death of A., B., or C. without leaving a child 
u>ho should live to attain the prescribed age, he 
gave the share of the one so dying to the child or 
children qf the others who should live to attain 

given over upon a contingency divesti^ the fee : if 
the fee so limited never vests, the fire over takes 
effect as a contingent remainder. "The estate 
may be devised over in either of the two events, 
and in one event the derise may operate as aoon- 
tingent remainder, in the other as an execattsy 
devise." This is the language of Bayky, ]■ m 
Doe dem. Herbert v. Selby, 2 R & C. 926. if*" 
which seems to us to govern the present. There, 
the testator devised freehold property " to my son 
George for life, and after his decease unto all and 
every the child and children of my son George, and 
their heirs for ever, as tenants in common ; but if my 
son George should die without issue, or leavingissiie, 
and such child or children should die before attaimnf 
the age of twenty-one, or without lawfiil issue, then 
I devise the same estates to my son Thonas 
and my daughter Ann, and my son-in-law, ■Wilnam 
Duke, and their heirs for ever, as tenants m 

their parents respectively, and if only one iff A _ 
B., and C. should leave issue that lived fo the pre- 
scribed age, then he gave the whole to that issue : 

E., A., B. and C. all survived the testator. E. died 
nener having had a child. A. survived E. and 
died never having had a child. B. died leaving 
seven children, all of whom attained the pre- 
scribed ages: C. had two children who attained 
the prescribed ages in his lifetime : 

HeU, that the limitation subsequent to the death 
of Elisabeth without issue took efect by way of 
contingent remainder supported by her lye estate, 
and vesting immediately on its determination, and 
that upon the death qf A. without issue, each of 
the children qf C. took one-twefflh qf the pro- 

perty originally devised to E. 


this, therefore, that whenever the only question in- DuMeld, 1 Dow. & CI. 268; Newman v. Newman, 
tended to be raised by the pleadings is as to the 10 Sim. 51 ; Blaqrove v. Hancock, 16 Sim. 371 ; 
amount of the original debt, the defendant can put i PrPC'or T. The Bishop of Bath and Wells, 2 H. 

the proscribed age, as taking in equal shares fiom common." Now, if George had died leaving diildroi. 

" ■ * ■ the fee would immediately have vested in tMm, 

and the limitation over to Thomas, Ann, ana Wil- 
liam Duke, could onlv have taken effect as an exe- 
cutory devise. But tlie Court of K. B. cleariy held, 
that as George died without havins had a cfaiU, the 
limitation over was to be construed as a contiiigeot 
remainder. The question arose from George, m™ 
lifetime, having suflered a recovery. In the event 
which happened, if the limitation in fevour of 
Thomas, Ann, and William was to be taken as a 
contingent remainder, it waa barred by the recovery; 
bat if as an executory devise, it was not. Bayley, J- 
presiding in this court, in the absence of Abbott, CjJ. 
said, " If George had left a child, a determinable fte 
would have vested in that child, and then the devise 
over could only have operated as an *'*'''^^ 
devise ; but Geoive having died without having had 
a child, the first fee never vested, and the remaindw 
over continued a contingent remainder." Hota)yd,J- 
and littledale, J. fully concurred, and the conse- 
quence followol that the remainder over to Thomsi, 
Ann, and William Duke, continued to be a con- 
tingent remainder, and was barred by the recovOT, 
which destroyed the particular estate, and left >t 
without support. It nos been remarked, that u» 
Doe dem. Herbert v. Selby, instead of saying nw 
limitation was a contingent remainder in one we™ 
and an executory devise in the other, it would be 
more accurate to say that there were two alteraatiW 
remainders in fee, one of which was contingent, sno 
was subject to an executory limitation in favour « 
the same person, who would have been the object ot 
the alternative remainder. But, whatever n>sy_ ''* 
the technical language in which the limitatwns 
should be describ^, it was decided that if the fil* 
contingent remainder never vested, the second ^'^''f 
tion would take effect as a contingent remain*'- 
This decision, which is founded on prior authontm 

is was a special verdict found npon an action of 
ejectment tried before Coleridge J. at the sittings 
for London after Michaelmas Term 1849. It is un- 
necessary to set out the fects, which appear fully in 
the judgment. 

Malins argued for the pluntiff. Peacock for the 

The following authorities were cited : — Doe dem. 
Dolley V. Ward, 9 A. & E. 582. Doe dem. Herbert 
V. Selby, 2 B. & C. 926 ; Loddington v. A'irne, 3 
Lev. 431 i Ginger v. While, WiUes, 348 ; Goodright 
V. Dunham, Doug. 251; Maintain v. Taylor, 2 Russ. 
&M. 416; 2 Jarman on Wills, 702; Gulliver v. 
Wicket, 1 Wils. C.C. 105; Meadows v. Parry, 

1 Ves. & B. 124 ; Murraj; v. Jones, 2 Ves. & B. 313 ; 
Mackinnon v. Sewell, 5 Sim. 78; Wilson v. Mount, 

2 Beav. 397 ; Cole v. Sewell, 2 H. L. 186 ; Festing 
V. Alien, 12 M. & W. 279, Lewis on Perpetuities, 
170; Bullv. Pritchard, 1 Rnss. 213; Duffietdv, 

Digitized by 


Makob SI9.] 


Quail's BENOH. 



and has nerer been questioned, seems to ns quite 
soffident to shew that, in construing the will of 
Thomas DoUej, the limitation of the piopertr left to 
Elizabeth Maria, after her children, is to he con- 
sidered as taking effect as a contingent remunder. 
Another objection made was, upon the langnage of 
the remainder over, " nnto the child or chudren, if 
any, of my said son and two danghters," which is 
onljr, in express words, "^n case of the death of my 
son or either of my said two daughters, without 
leaviiwa child, if a son, that shall hre to attain the 
age oftwenty-three, or, if a daughter, who shall live 
to attain the age of twenty-one years," without say- 
icg, with respect to his daughter Ann DoIIey, "if 
ihe has none ;" the argument being, that as Ann 
sever had a child, the contingency has not arisen on 
which her share was devised to the children of John 
DoUey. Bat we consider it quite clear from the tes- 
tator's language, that he intended this remainder to 
take effect upon his daughter Ann having no chil- 
dren, in like manner as upon her having children, 
and dying without leaving childien who should live 
to the required age. - There is a long string of cases 
in support of the doctrine, that if there be a ^ft over 
on B class dying within a particular age, it takes 
eSect if that class never comes into ezistenoe. I 
consider it sufficient to mention the first of them, 
which has often been acted upon, Jonei v. Wett- 
eomb, 1 £q. Cas. Abr. 245, where a testator be- 
quea^ied a term of years to his wife for life, and 
after her death to the child withTwhich she was then 
encHntt, he believing she was then enctinie, and if 
such child should die before attaining the age of 
twenty-one, then one- third to his wife, and the other 
two-thirds to other persons ; the wife vnis not m- 
eemte, but Lord Hardwicke and the Court of K. 
B. held that the bequests over took effect. The les- 
sors of the plaintiff likewise claiming one-twelfth of 
the freehold property devised by the testator to his 
daughter Ann DoUey, it was admitted that this claim 
was not liable to any objection which was not urged 
against the former. Therefore our judgment will be 
in fayonr of the lessors of the plaintiff, for botf^tbe 
twelfths which are claimed. 

Judgnuntfor the plaM\f. 

covKT or ooaxMOir bbitch. 

Bsported by Jons TnoKrsos and Dutixi. Tbokas £T.urs, 
Esqrt. Barristen-at-Law. 

Friday, Vm. IS. 
Nkwnham v. Stevensok and Wood. 
J^vudulent prrferenee — "Ju» ftrtii" — 
Hoodi, (At proptrty of S. a tradtr, teere seized by 
the theriff under fi. fh. and by him auigned to 
plaiatiff, by a bill of sale, on the 2Ut qjf June, 
1849, under a judgment fmaided on a warrant of 
attorney, given by S. to plaintiff in the preceding 
February. The goodt remmned on the premisei 
oeeupiedby S. till the lUh <tf September follow- 
ing, when plaintiff look poestision <ifthem, and 
S. gttttted the house. On the 5th of October, whilst 
pUmliff was in possession nf the goods, the de- 
Jendants distrained. On the 8th 8. filed a peti- 
tion m bankruptcy, and on the 23rd assignees 
were duly appointed. 7%e assignees never inter- 
ftred with or demanded the goods, but they com- 
menced an action of trover against ptaiiUifffor 
the conversion of the goods. 
Jn an action on the ease brought by the plaintiff 
against the defendants for excessive distress. See. 
the leamedjudge directed the jury that, " if the 
warrant (ff attorney was given voluntarily by 8. 
to the plaint^ for the purpose of securing the 
plaintiff, while the rest of the creditors would be 
umseevred, it was a fraudulent transaction and 
void, and that m such case the bill of sale would 
eonvey no properly to the plaintiff, «"t° would 
not be the owner of the good* and could notmain- 
tain the action :" 
Held, a misdireetion. 

Held, also, that the defendants being wrong-doers 
could not, m such a state of facts, set up the title 
of the assignees as a d^enee to the action. 
The Acts and arguments in this case are fully set 
ont and reviewed in the judgment. 

E. James, Q.C. Phipson, and Prentice, shewed 
Byles, Seijt. Gray, and Pashley, in reply. 
The following authorities were cited in the course 
of the argument:— Iifeite v. Lot f day, 4 M. & G. 
972; Tope v. Hockin, 7 B. & Cr. 101; Rows v. 
iliiiet,6M. & W. 747; Horlock v. Tollemache, 5 
Scott, N. R. 329 ; Docker r. Hasler, 10 Moore, 210 ; 
MvtrUt T. Wells, 2 H. & 6r. 269; Ex parte 
Philpott, I De Gex, 346; Oswald y. Thomp- 
son, 17 L. J. 235, Ei. ; Ex parte Norton, 1 De 
Gex. 504; Ross v. Clifton, 11 A. & E. 631; 
Hall ▼. Wallace, 7 M. & W. 353; Sutler 
Y. Hobson, 5 Scott, 798; Hardmanr. Wilcock, 9 
Bing. 382. Contra .—11 Geo. 2, c. 9 ; Marshall v. 
Barkworth, 4 B. & Ad. 508 ; 7 & 8 Vict. c. 96, s. 41 ; 
Webb T. For, 7 T. R. 391 ; Winterbom t. Morgan, 

11 East; Fneleft. Down, 1 B. &F. 44; Nelsonv 
Cherry, 8 Bimr. 316; Branscombe v. Bridges, 1 Be 
& Cr. 145; SHtith r. (Joodwin, 4 B. & Ad. 418; 
f^sen T. Chambers, 9 M. & W. 465 ; Giles v. Graver, 
6 Bligh. N. C. 453 ; Story tm Bailments, 109; 2 Saun- 
ders, 47 E. ; The Bailiffs, S(c. ofDunwich T. Sterry, 
1 B. & Ad. 831 ; Savigny's Treatise, 29. 

Thursday, .Fei. 20.— The Court this day deli- 


Jsiivis, C.J. — This was an action on the case, in 
which the declaration contained four counts — first, 
for distraining for more rent than was due ; second, 
for ezcessive distress; third, for selling within 
five days; fourth, for selling the goods for Ie« 
than they were reasonably worth. Then there 
was a count in trover. The defendants pleaded not 
guilty by statute, and to the count in trover pleaded 
not possessed. At the trial the plaintiff abandoned 
the two last counts. The goods distrained had been 
the propertjr of Saunders, a trader, and were seized 
by the sheriff of Surrey, and by him assigned to the 
plaintiff by a bill of sale, on the 2Ist of June, 1849, 
under a judgment founded on a warrant o( attorney 

?'Ten by Saunders to the plaintiff in the month of 
ebmary preceding. After tne assignment, the goods 
remained on the premises occupied Dy Saunders ; but 
on the 11th of September the plaintiff took posses- 
sion of the goods, and Saunders and his &mily left 
the house. On the 5th of October, while the plain- 
tiff was in the possession of the goods, the distress was 
put in, and on the 8th of the same month Saunders 
filed a petition in bankruptcy, on which he was 
decUred a bankrupt, and on the 23rd assignees 
were appointed. It was not proved at the trial 
that the assignees had interfered with or de- 
manded the goods of the plaintiff ; they had not 
ratified the act of the defendant, but they had com- 
menced an action of trover against the plaintiff for 
the conversion of the goods. For the defendants, it 
was contended that the execution was a fraudulent 
preference and an act of bankruptcy ; that the pro- 
perty passed to the assignees, and that the plaintiff 
could not recover. To this it was answered the jus 
tertii could not, under the circumstances, be set up ; 
at all events, the plaintiff being in possession, might 
maintain the action. In the summing-up, the Lord 
Chief Justice told the jury, that if the warrant of 
attorney was given voluntarily on the part of 
Saunders for the purpose of securing the plaintiff in 
the event of a bankruptcy, while the rest of the 
creditors would be unsecured, it was a fraudulent 
transaction and void, and in such case the bill of sale 
would confer no property on the plaintiff, who would 
not be the owner of the goods, and could not main- 
tain the action. The jury found the warrant of at- 
torney was given by Saunders as a fraudulent pre- 
ference of the plaintiff over the other creditors, in 
contemplation of bankruptcy. Upon this finding a 
verdict was entered for the defendants. In Michael- 
mas Term, my brother Byles obtained a rule niti for 
a new trial on the ground of misdirection, which was 
discussed in the same Term, and we have taken time 
to consider our judgment that we might examine the 
authorities which were cited, and be enabled, by 
reference to the notes of the evidence, and summing 
up, to ascertain correctly the tacts which raise the 
point, and the manner in which those facts were 
left to the jury. It is unnecessary to consider whether 
the direction of the learned judge was confined to the 
iraudulent preference strictly so called, or was in- 
tended also to comprehend a transaction intendeid 
only to protect the goods against the creditors, but 
to pass no property to the plaintiff; because the 
jury found the warrant of attorney was a fraudulent 
preference, and on that finding the verdict was en- 
tered. On the facts proved, and on this finding of 
the jury, we are of opinion the verdict ought not to 
have been entered for the defendants; that the 
learned judge misdirected the jury, and that 
the rule for a new trial must be made absolute. 
It is not necessary to determine whether the 
bare possession of a mere wrong-doer will, 
as against another mere wrong-doer, entitle 
the former to maintain trover or tresjiass, nor need 
we on the present occasion advert to the distinction 
in this respect between trespass and trover recog- 
nised by the civil law, and noticed in some cases. 
Here the finding of the jury imports that Saunders 
intended the property to pass, and the plaintiff to be 
preferred to others. The plaintiff must take the 
property in the goods, and, if no bankmptey had 
intervened, he would have been an indefeasible 
owner in possession of the goods, and might have 
maintained an action. The effect of the bank- 
ruptcy, and the irsudnlent preference, is not to put 
the goods in the same situanon as if the goods and 
execution had passed to the assignees, so as to vest 
them at once bv the bankruptcy in the assignees, 
independently ot election on their part ; but by the 
transfer, which is a fraudulent preference, the pro- 
perty vests in the transferee, subject to be divested 
by the assignees, and the title b^ that transfer is 
perfect, except so far as it is avoided by the assig- 
nees. The assignees in this case were not proved to 

have done anything to affect the plaintiff's title 
They had not demanded the goods of the plaintiff, 
they had not even ratified the defendant's act 
before the commencement of the action of trover, 
which may be abandoned at any time, and 
which, as soon as the goods came into pos- 
session of the defendant, lawfiilly could not, without 
more, be taken to be the election on the part of the 
assignees to avoid the transfer. We need not, there- 
fore, consider the question which might have arisen 
had the assignees interfered: ontil thev do inter- 
fere the plaintiff, without doubt, was nimself not 
only in possession, but the owner of the goods, and 
the defendants, being n-rong doers, cannot set up the 
title of the assignees. The plaintiff was in actual 
possession ; that is, prima facie evidence of pro- 
perty. The case of the defendants is, that the 
plaintifrs property was acquired by a transfer from 
the bankrupt, which the assignees, and they only, 
had a right to question. They do not shew that 
they have qnestioncd it. The plaintiff had the sole 
property, and ought to keep the goods against all 
others. The cases of Leake v. Loveday, 4 M. & G. 
972, and Hardman v. Willcock, 9 Bing. 382, in » 
note, were relied on in the argument for the 
defendant. In Leake v. Loveday, the plaintiff' 
brought trover for goods not in his actual possession 
at the time of the conversion. It was therefore ne- 
cessary for him to shew a title, which he did bjr 
shewing that at the time the goods were his. In 
answer to this case, the defendant proved that the 
goods, at the time of the conversion, were, with the 
consent of the plaintiff, the true owner thereof, in 
the order and disposition of a person who had com- 
mitted an act of bankruptcy, and against whom a 
commission had issued ; and that the title which the 
plaintiff once had was at an end ; and the consent of 
the plaintiff, together with the bankruptcy, trans- 
ferred the property and right of possession of the 
assignees as effectually as if the plaintiff had sold and 
delivered the goods to the bankrupt ; in vrhich case, 
whether the assignees claimed the goods or neglected 
to do so, the goods would be thdrs, and not the 
plaintiff's. There the goods were in the order and 
disposition of the bankrupt ; here they were trans- 
ferred from the bankrupt by fraudulent preference. 
The distinction is obvious, and that case, when pro- 
perly understood, ought not to govern the pre- ' 
sent case. In Hall v. Wallace, 7 M. & W. {supra), 
the plaintiff had no property in the goods, special 
or otherwise; they had been removed 1^ collu- 
sion between him and the insolvent, to wliom 
they had belonged ; they had been sold by an auc- 
tioneer employed by the plaintiff, and on an action 
for money nad and received, the assignees interfered. 
The jury found the plaintiff's possession arose out of 
flraud concocted between him and the insolvent to 
defeat the other creditors. The principal question 
was whether the auctioneer was bound to account to 
the plaintiff; but the Conrt held, inasmuch as the 
insolvent could not have brought the action against 
the auctioneer, so neither could the plaintiff who 
got possesrion by fraud between him and the insol- 
vent. It becomes unnecessair to express any opinion 
on the other point discussed during the argument, 
namely, whether the assignees could impeach the 
act of bankruptcy. For these reasons we are of 
opinion that the nde for a new trial should be made 
absolute. Rule absolute. 

. oovAT or BxoRa<tiras. 

Beported by Faisnicc Binmr and C. J. B. HnisUR, 
Bsqrs. Barristen-at-Law. 

Feb. 12 and 13. 
Doe dem. Jones v. Hughes. 
A will contained the following clause: "I subset 
and make liable all my real and personal estate, 
with the payment of my just debts, fiineral, and 
testamentary expenses, and charges attendant 
thereon, the legacy hereinqfter by me bequeathed, 
and subject thereto, and to the payment Ihereiff! 
I give and devise the rents and profits of all amd 
singular my messuages, tenements, farms, and 
lands {except my Bala houses) to my wife " and it 
appointed her sole executrix and residuary 
legatee : 
Held, that such charge on the real estate for pay- 
ment of debts. Ice. did not give the executrix an 
implied power qfsale or mortgage. 
In this case an qectment had been brought by the 
lessor of the plaintiff to recover from the defendant, 
who was the tenant in possession, certain houses at 
Bala. The action was tried at Dolgelley, at the last 
Summer Assizes, before Talfourd, J. when a verdict 
was returned for the lessor of the plaintiff, with leave 
to the defendant to move to enter a nonsuit. In 
Michaelmas term Beavan obtained a rule nisi to 
enter a nonsuit, or for a new trial. 

Welsby and V. Richards now shewed cause. It 
appeared that the plaintiff claimed' as heir-at-law of 
the testator, Evan Hughes. The defendant was the 
widow and executrix of Evan Hughes, and cUdmed 
in her character of executrix, not as devisee. The 
will was in the foUovring terms : " I subject and 

Digitized by V^OOQlC 



[Hou 413. 



inak* litbls all mj iwl aad penotul eitate, with tha 
pfment of my jiigtdebta.fiiiiM«l«ndte!it»m(iit»ry ex- 
peniettandcharges atteaidant thereon, thel^ficyhere- 
aftei by me bequeathed and subject thereto, and to 
the payment thereof; I give and deviae the rents and 
vronts of all and singular my messuages, tenemants, 
tuuB, and lands (except my Bala houses), sitnate in 
the parish of IJamyUiii and Llanydl, unto my dear 
1li£9, Ann Hughes, for and during the term of her 
natunl life, and that my said wife has a power to 
charge one-half of the Talue of my Llanfyllin pro- 
perty, and to be at her own disposal ; and, after her 
oeoeaae, I give and devise my messuages called 
Brynmoer, Bryndn, and Eu Bach, unto my relation, 
Hugh Hoghes, his heirs and assigns for ever. I give 
and devise, after my wife^s decease, all and 
ffpy'.' otiux the forms, tenements, messuages, 
•nd lands sitnate in the parish of Uanycil and Llan- 
fyllin unto my friends and relations, Robert Jones 
wad Cadwalader Jones, their heirs and asaipis, for 
erer. I give and bequeath onto my friend Edward 
Bowlands 5/. for making this my will." The rest of 
liis property he devised and bequeathed to his wife, 
to De at her disposal, and appointed her sole ezecu- 
ttiz of his will ; and she, under legal advice, pro- 
ceeded to mortgage the Bala prop«^. The q<ies- 
tion was, wliether the charge of debts, funeral and 
testamentary expenses, gave to the executrix a power 
<rf appointment for the purpose of meeting those 
charges, or, in other words, whether the ex- 
ecntrix had a power which enabled her, for 
Oio pivpose of paying the debts, &c. to pass 
the legal estate to her nominee, who would 
be in effect a devisee under the provisions of 
tte win. The difficulty on the part of the executrix 
ms, that no estate was given to her by the wiQ. 
2P0«reIIon Devises, 667; Forbtt v. Peaeatk, li 
M. & W. 630 S.&; 11 Sim. 152, and. 12. Sim. 528, 
Nl: Amm. 3 Dyer. 371 b, pL 3; Jium. 2 I^onard, 
2t(yi 27G; inter's Abrids. tit. "Deviae;" TuUtm. 
r. Byde, 2 Sim. & S. 238; Ward v. Dnon, II 
Sfau 160; 1 Sue. on Powezs, 133, 13«. n. 7; Cater 
T. QotSa, 1 CoQ. 644; 1 Wms. Bxors. 511; £«•• 
ihmm V. WUUhirt, 4 Maddox. 44 ; Patttm v. Jloa- 
OaU, 1 Jae. & WaL 189; Sham v. JBorror, 1 Keens, 
659, wen cited. In all these cases thote was a 
devise and appointment, or an express directiott 
•nd devise to selL It will be found that, witboot 
•xoeption, the words "to be sold" occnr in all the 
caaescited; that in 3 Dyaria certainly thestoongest. 
The lapl estate d«sf««ils to tha heiT-at-bnr, and 
there IS no power to amoint arising f^om a 
mere charge. Thara> may oa a power by in^ 
pUotfion in tha executor; beoauae it is hia. dnty 
to administer, bnt he can only d»it.thn»^&£aiiit 

Tmlm$im, Btatmt, aad If. LUyd, in sannst 
If tins rule is not abselate, real estate can oaly be 
made chargeable bf a snitineqwfy. laaftct, tha 
dafandant is a devisee nndar tiis wiU, and if in such 
cases it were necessary to raaorttoaCoart of Eqaity, 
it WDuM generally renilt that tha whole eatate would 
be exhausted in costs, whilst thadabta. Sue. s e mai a ed 
Unsatisfied. A charge of debta on tha pr o p er ty ia 
etfoivalent to adirection to sdl tha paopeity for tlie 
payment ofdebts. The mode of egcprsasioB is of no 
consequence, if it can be seen that the intsotiaa of 
tha testator was that his debts should be paid. Tba 
Btat 3 & 4 Wm. 4, c. 104, renders freehold and 
oopyholdestatesassetsforthepaymentofdebts. The 
Legislature intended tiiat enactment to operate as a 
devise for their payment, and in such acase as this 
there is no occasion for a suit in ecjoi^- [Aldba- 
SON, B. — How can the jury ascertam if the personal 
estate has been exhsasted without a suit in equity ?] 
If die testator had fixed the mode of deaUng with his 
estate^ that is all that is requisite. Th» question is 
this, whether the testator is to make amogemoits 
tar liquidating hb debts, or leloetant parties ss« to 
be compelled to do so by a suit in eqni^. [Pabks. 
Bv— Tou mean, that if there is an express power to 
Ban, the purchaser is not bound to inanira about the 
debts owing?] In the charge of debts, &c. the 
tsitator has plaeed the realty in the same category 
M tbe personalty, shewing that he intended that 
ttey should both be subject to the same powers. 
'Wnen it appears on the face of a will that there is 
no trost commensnrate witii the power vested, that 
power may be executed by the executor. JUillward 
T. Ubore, Seville, 72, the same case as reported 
iljiMi.3 Dyer, 371 ; BUioU v. litrrmun, 3 Bamard- 
iston, 78 : BaU v. Harru, 4 Myl. & Cr. 264 ; Dalto* 
T. ^rweii, 6 Mad. 9; Blagrove v. Blagroet, 4 Ex. ; 
<^tr^it V. Futirooke, 19 Law J. 65, CL ; Williamt 
T. CMUy, 3 Ves. 545; Mmaingy. Spooner, S. V. 
117 ; Banpoed v. Oglandtr, 8 Vea. 124 ; Ntwmm 
r. Jtkmtom, 1 Ves. 44, were dted. 

Cur. adv. mil. 

Friday, Feb. 14.— Fames, B. after going 

Ann Hnghas, it U moeoeesarr to detarmi>e. It' with fnnenl and testaa^^anr axpmses, wfaicii «ae 
appsared pretty dear that ttero was not^ so that so immedi ata purpoae, srtuoh could not be loos 
SeBalahOBses passed in fee to the lessor of the| delved, that it mast be implud that be mevitthe 
plsintiS The question is whether the executrix to 

the will, wfaoaniears tohavebseninwaatof moosy 
for the purpose of paying the debts and pecuniary 
and testamentary expenses of the testator, had aright 
to sdl or mortgage Ijbe Bala hotoes for the purpose 
of raising the money. She took advice upon the 
subject, and in order to save the expense of an equity 
sui^ t^ property bmng very smaU, she took upon 
herself to mortgage tlw property to a third pereon, 
who advanced the money. Xhe question is wnether, 
under the will, she had any right to do so. In the 
course of the argument many of the cases upon this 
subject were brought before us, and it was con- 
tended on the part of the executrix that the effect of 
a charge on the real estate with debts was to nve her 
an implied povrer of sale ; bat on looking urongh 
those cases, it is perfsdly clear that there is no one 
case that goes to the extent of that proposition. 
There is a class of cases which shews that if the real 
estate were devised to trustees charged with the 
debts of the testator, that those chargsa iapose on 
the trustees &e trust of raising, money to pay tiiose 
debts, and the estate being given to them, they can, 
through the means of their estate, raise money for 
the payment of those ddits. There is another dasa 
of casss, of which several were dted; the last is 
Fiirbt$ V. Psaeoei, 11 M. & W. 630, winch decides 
that if it appear, from tha whole purview of the wiH, 
that the tsststor means hia real estate to be sold, aad 
the prooeeda of that real estate to be disbibntsd 
for the purpose for which it is given, which tba exe- 
cutOB alone by law could pertov, tbeo, th^ there 
is an implied authority — an implied power— given by 
the will to sen tha as^ta, and tiiat the exacatoa who 
is to distribute the money is the proper person to 
sen it. Several cases were dted which confirm that 
preposition. And, upon looking to these cases, there 
nnot a single case or a siogla sntharity iriiicb says 
that the simple chargeof theestate, with the payment 
of debts, does mors than make a charge upon the estate 
m the hands of the devisee if Hie estate is devised, 
in the hands of tha hai«-at-1aw if the eatata deroteea 
by the law of inheritance upon tha heir-at-law. The 
only aothorities wiuch had the aspect ot oonstitQtiac 
the execntor, or giving the exeentor ot execiilrix an 
implied powor to sell, was the dtctem of Tice-Chaa- 
cellor Shadwell io the case of Farbm v. Peatoek, 
twice before him, and also before the Court of 
Ex. ; and in one of those oaaes, in 12 Suaaa'a 
Cases in Chancery, the Vios-Chanoellcr of Ea^aad 
is reported to have said, " If a testator oharges his 
real estate with the payment of his debts, that, 
prrmi yiictr, gives his exaeutor power to sell the 
estate, and to give a good discharge for the pochase- 
money ; that was aU that I decided on the argnment 
of the demarrer." If that is correctly reported, it 
would imply that tba Vice-ChaaceOor was of opinion 
that a simple charge ofdebts without more— witfaoat 
any terms in the will iadicatmg such aa intaBtio& on 
the part of the testator, was an implied aathoeity 
given to tha execntor to seU, that would be asalitary 
anttiarity, becanse there ia none other to be foond 
thatgoes to the same extant. But the Vice-Chan- 
cellor is merdy stating what he had stated before. 
The first time the case of Forbtt v. Ptataek was 
before him, the propodtion he is there repotted to 
have stated, in the 11 Simons, is quits distinct from 
this: thcate it is perfectly deer that he gave his 
opinion upon the supposition that the will in that 
case authorised the me of the property ; that the 
testator meant it to be sold ; and that the execntor 
was the proper person to carry that intention into 
effect ; ud Iw cites, in givinf[ bis judgment, a case of 
Ward V. Bewon, before him, which was to that 
effect. "SeU all off, both the real and personal pro- 
perty, and divide the produce between my wifo, 
Muy Ann Ward, and my sons and Ha n ghter s, each 
to share alike. The law gives the house atTodding- 
ton to the youngest son; out it is my will to sellaU. 
I appoint Mr. Bobert Ward, my brother, and my 
wUs, Mary Ann Weed, my executors." That was 
the whole of the win, and he held, in that case, there 
was dearly a piwer to sell, which must be e xe cu ted 
by the executors; aad so upon the purview of tba 
whole will, in Farbat. Ptaeotk, he was of the same 
opinion, and that was the opinion which tha Court of 
EGc on the case sent to them, also entertained. That 
was the law on the subject. When the case was ha. 
fore Vice-Chanoellar Bruce, be expressly giarded 
himself from saying that be decided the efleot of a 
simpto charge of the estate woald amount to a power 
to sell : in net, there is no case that gpea to that 
extent. The only doobt that we entertuned in our 
nrinds waa, whether there was enough enablini us 
to say that the testator meant his estate should be 
sold for the same purpose — it was not that ha sob- 
jectad his real estate merdy to the payment of his 
through' the foots of the case and reading the! just debts, but his faneral and testamantary ex- 
wiO.— There is no doubt the Bala houses, not penses, and charges attendant thereon, " and tha 
bdng devised by the will to any devisee, passed i legacies hereinafter b^ me bequeathed," subjecting 
to the heir-at-law; whether there waa a remainder ' it to a charge of legaaes. He clearly ^vea no power 
of the Bala houiea after tiie death of the wife, ' of sale ; but it wae snneeted, charipng the estate 

executrix to selL Now we hare cnnHidpred tbaaa 
eases, and we have found no aathorit^ for aook a 
proposition. As to the exception in this also, " ex- 
cept my Bala bcnses," which be does not wish t» 
devise, it might be said t6 be his intention that the 
Bala houaaa should be sold, although, perfaape, not 
tha other pioperty, for the purpose of paying the 
testamentary expenaae and charges, just as if he had 
made an appointment of the Bda booses to be sold 
for that purpose, and as if he hsd given a power ta 
the executor for that purpoee. But wa are of Iranian 
that this really carries the case no tar&et ; it istif 
subjects tba estate in tha hand of the heir-at-law ts 
a charge for faneral and testamantary exp ena ae , aad 
the chaqgea fUtatAjng the proof of the will, wUck 
the execntrix musten&nce tiuough the medium of a 
court of equity, and tharefbie we think in thu cass 
the execntrix had no power to seU or mortgage that 
estate. Sfas was led into a mistake by the adTioe she 
has received for the purpose of avoiding an equity 
suit. It is not within the prindple of any of tha 
cases, in which it has been held that there is an im- 
plied power of sale and an implied power of mott- 
gsge Dy the wilt. We have peifectly satisfied oar- 
seWes on that bead, and therefore tha reeoU is dis 
rule in this case lanst be discharged. 

AioaaaoM, B-r-The strongest case waa tiiacsss 
in Dyer, where tha testator appointed lands for tha 
payment of his debts ; here ha baa only chargsl 
them, but he baa not sail for what pnrpoea. Ia 
Dyer it waa an appoiataant of a-particalar eatate ia 
general for payment of debts; in this caae it is a 
gewral charge on all the landa with tha sxoeptiaB of 
p« frt>inU» land,— for whatpnrposa those lands wae 
excepted nobody knows. Rule Otehmrytd. 

B spe t tsd by Vtno Cm Kioiui.Bki. of the IBM* 
" Tonpla, Bai(irt«r«t-I«v. 

* Tkunday, ifareh 6. 

(BsCnre Mr. Cniaeiierinner Phillips.) 
Re RuBixa P. Brainb. 
Qppost/ion — A4ii>»med hearmg. 
A creditor reeeiving due nottee iff the iearinf </mt 
intoltent, and not ap p ea rin g to oppott witil an 
adjourned hearing, it not entitled to oppott. 
This was an adjourned hearing. Several of tie 
creditors oppoaed, aad aaongat the rest one nssMd 
Cooper, who had net ap pe a red upon the first hesriBg. 
Cooke, tat thtt insolvaet, ohjeetad to his opfo- 

Ifr. Coopar add, Oat bdng unsraH at tiie oii^Hl' 

faearteg, and b^ng informed that there coeld ant be 

a final adindkation, as there were imperfect ssrrisss, 

he had reaarvad his oppcaition for to^lay. 

Mr. Commissianer FaiLLipadiaaUowed tbeoppe- 

Mtmiag. Manh 17. 

(BeCsre Mr. Caaasssioesr Lav.) 

Bt Bdvako HaNKT Tatu». 

Cdniraating deitt without reatanable e ap t ct a l imu 

^pagtntnt—Dekti in TVodr. 
Dtiit/br good* in trait may be eontraeted mi l hm ri 

rononeilt or prokabtt exveetationt qfpm pm m i . 

This inaalveotwas a papaihangsr and giaa»- u i d ls i, 
redding at HoUoway. llie aggregate aasonnt of Us 
debts was 234i. The dsbts, with oomidaiatiaa, nmo, 
1861. His inselveney was ocoasiaaed by leasss by 
contracts and- illness. Ha was o p po s ed by Ifr. 
Alfred Godett, ^aas merch ant , Soho-sqnam, npaa 
the grannd that hia debt, aau>nnting to 63/. 4i. 8d. 
for goods ia trade supplied in 1866, was contiacted 
witboot reasenaUe and probable e xp ecta ti ons of paf- 
msnt. Tba insolvent took a place of bvaineas m 
Holloway, not being dssr of debt at tha tiaae^ sod 
he carried on his trade for nine months, dorh^ 
wUch be had goods from the opposing oreditDr to 
the amount of 63/. which he sold for 7bl. bnt didast 
par him any tfasag. 

the CooBT remanded the insolvent far ai|^ 
calendar ssenths, for conteaeting the debt witiiont 
reeeooaUe or prdiable expeolafion of payment. 

lie William Hill Powell. 
Semble, that negleettng to make pagmente m ttntmtl 
ing ofthtfinti order, it a contempt qf Court, cf 
which the Court mag alwagi take notice. 
Whenapropotalitmade, the Court wiU be guidai 
kg cireumiiancet in granting or witkhotding tha 
final order, but it ditapprotet of withholdimg the 
fin^ order. 

'ThisinsolveDtwaaamsssenger of the court. He 
made a liberal proposal for the pavmentof bu debti^ 
which was aooededto by almost ul the creditors. A 
point was moated aa to whether the final ordar 
should be granted at once, or the protsetion leuc wed 
from time to tims, as the parent* were maia. ae> 
cording to the onUnary practioe. 

Digitized by 


Mabob 39.] 




Mr. Qto. lAtni, the intolnnfs attorney, men- 
&>ned to the Court the inoonraiienoe renilting to 
■n inaoWent from withholding his final ordtr in dna 
□oiune. Tlie offioen of the Coontr Courti leized 
the property of the insolvent in execution, which 
irent in due coorse, a* the proteotinf order was no 
bar to an action for the recoveiT of adebt This led 
bo the practical absindity of maUnK a man par parti- 
cular debts in his schedule by instalments at tde same 
time that they weie making payments by instahnenta 
to the creditors generally inserted in their schedules. 
The creditors who resorted to proceedings in the 
County Courts for the recore^ of their own debts in 
the schedule obtained a preferenoe orer those cre- 
ditors who did not resort to legal proceedings. If 
all the creditors took proceedings under thMe dr- 
cnmstancee, it was clear that the protection of the 
inaolTent statutes would be a nullity, which he sub- 
mitted the Court had the power to prevent, and was 
bound to prevent, by carrying out the provisions of 
the Act, and granting in due course the final order. 

Mt. Commissioner Law expressed his disapproval 
of the system into which they had bllen of not 
sraating the final order, a syrtem into whidi they 
had fiallen in consequence of the defective state of the 
Act in reference to the enfocement of these pro- 
posals if they were not acted upon after the final 
Older was obtained. His present impression was, 
that disobedience to the order of the Court 
for the payment of an instalment becoming doe 
under a proposal after the granting of the final order 
oonditioDal upon these payments beinc made, was a 
contempt of Court, and might be dealt with accord- 
ingly. In this case he did not see the usual nason 
for withholding tlie final order, for the insolvent 
b^ng an officer of the court, if the payments ware 
not made, his own income would vanidi at once. 
Th» final order might therefore be nanted, and the 
piopoaal wtU be part of the final order. 

Th*fi»al order mu granttd. 

'tin ml 9au.j^^ 

Bepocted br W. J. Miroun, Eh. of the Iniwr Tenmls, 

sirrnros rs ixtsnov aitbb idchabuub 


Saturday, Dee. 14, 1850. 

(Before Chief-Justice Jbrvis.) 


Sobp. du. tecum— £i«<iBic« — Privilege — Seeondary 
evideite^—PrceeetUnge t» ParUameni— Agent — 
lff<m attorney appeart in obedience to a subpoena 
duces tecum, and oijettt that he hold* the deed 
which he i* lubpeauud to prodttee/or a client, 
teeondary evidence ef the deed w admiteible, 
though it it not proved that euch client otjecie, 
or that he hat had notice to produce. 
A. and B. appeared in Parliament ae the agents 
for the prometert of a BiO; the proeeedingt re- 
lulted in an Act hetngmade: 
Held, that tiatemente made by A. and B. for the 
furpoiet t^ the BUI, were admiteible againet the 
pnmotere, withoutjitrtherproqfi)f authority to 
aetfor tueh promoter*. 

On the trial of this cause, a deed was called for on 
behalf of tiw plaintiff, and an attorney appeared to a 
lubpmna duces tecum, but ob.jected to produce it on 
the ground that he waa holding it for a client, and 
that he had not the authority of his client for the 
ptodoetioB. Secondary evidoioe was then tendered. 
Orowder, Q.C. objected to its reception. It did 
not appear that the dient had any objection to its 
prodoctioiv or that he had receirea notice that it was 
wasted ; the |»ivilega was that of the client, not of 
the attorney, and the ^plaintiff should, therefore, 
have given the client notice, and should have shewn 
Us dustnt to its production. 

Sir P. Theeiger, coattk. The refusal of the 
attorney to prodooe it is sufficient ; he says that he 
holds it for the cUent, and be is not, tlierefore, 
enlilled to produce it wi&out the expieaa authority 
of bis dient. A similar case occurred before 
Arke, B. and secondary evidence was admitted. 

Jbbvis, C.J.— I think it must be snffidcnt to 
shew the refusal of the attorney. The attorney, 
when ssrved with the sobpoeaa, may not have men- 
ticoed Us client to the plaintiff, and the plaintiff, 
. suppesing that the attorney holds for himself, may 
this be turned round at the trial, because he had 
given no notice to a person of whom be probably 
nsver before heard. It would be very difficult to 
obviate the objection if valid. I think secondary 
evideDce is admissible. Evidence admitted. 

It appeared that the defendants were the pro- 
moteis of a Bill in Parliament, which was carried 
^nnih and resulted in an Act. Statements made 
by Mesan. Dyson and Hall, the parliamentary 
>|tBts, when appearing for the promoters, were now 
tendered in evidence for the plaintifib. 
Crowder, Q.C. objected. The statement* of Dy- 

son and Hall were not admissible against the de- 
fendants, without shewing that they were authorised 
to act for them. 

Jbbvis, C. J.— Is it not like the attorney on the 
reoord in an action ? 

Sir F. Theeiger and Hill, Q.C. contii.— From the 
beginning to the end of the proceedings in Fariia- 
ment, Meesn. Dyson and Hall appoired as the 
agento for the promoters, they conducted all the pro- 
ceedings, and the Act was made. Surely the pro- 
moters cannot now npudiato the anthority of Messrs. 
Dyson and Hall to act for and to bind tluBm. 

Crowder, Q.C. — Suppoong an attorney has carried 
on an action. If it afterwards becomes necessary to 
prove his acts or his dedarationa against his apparent 
client, it is not snffident to shew that he is the at- 
torney upon the record. It may have been a volun- 
tary act on his part, without any retainer or authe- 
rity firom the party for whom he appears. Besides, 
some of the defendants may have become promoters 
at the last meeting, alter the statements now ten- 
dered were made. 

Jektis, C. J. — ^The statements bein^ made in the 
course of proceedings which resulted m an Act of 
BsrUament subsequently adopted by all the defend- 
ants, they sre, in my opinion, admissible against 
them withont further proof of authority. I under- 
stand tiia statements to be of such matters oniv as 
(he agents would make for the purposes of the Bill ; 
thev must be dearly within the scope of their 
anthoritv. Evidence admitted. 

Sir F. Theeiger, U. D. Hill, Q.C, Channell. 
Serjt and BovUl, for the planitiffs. 

Oowdsr. Q. C, B. Jamee, Q. C, Allen, Sent 
Skinner, BramweU, Hindmarth, and /. Brown, tar 
the defendants. ^^ 

Friday, Deeewtber 20, 1850. 
De Obdcht v. BanrsaBa. 
Hueband and wife — Separation— UaUlUy. 
Ifhveband and wife are living (giart, the hueband 
ie liable far neeeetarin. unleee he makee her an 
adequate allowanee, coneidering hie otin meane 
and irfi t' Mwifawtsi 
Semble, a letter to the wife directing her to get in 
and tend aUttqf her debt*, that tome arrange- 
ment might be made reepeeting them, dote not, 
if tueh allowanee teas adeguate, render him 
A»d temble, he it not liable, though, ofter tueh 
letter he did not, during the remaimng three 
' montht, remit any further dividende of the pro- 
perty, which wae tetiled to her leparate ute. 
The action waa in attumptit on the common oooat* 
for goods sold, and on an account stated. The deCsnd- 
ai^leaded the general issoe. 

The plaintiff waa a tradesman living at St. Heller's, 
in Jersey, and the defendant was superintendent of 
the London and North-Weatem Railway. It ap- 
peared tiiat the defendant, who was formerly an 
officer in the Engineers, married in 1822. 10,000/. 
Consols bong settied to the separate use of Us wife ; 
that afterwards a Anther sum of S,000{. stock was 
left by win to the separate use of his wife, 
vrith a remainder in a further sum of 1,0001. 
subject to a life estate; that in 1842 tiie defendant 
became embarrassed, and that it waa then arranged 
that his wife and children shoald leave him a Lon- 
don and go to live in Jeisey ; they did so, and re- 
mained thete till May 1847, they then came to Lon- 
don and steyed with the defendant till November 
1847, the wife and three diildren then returned to 
Jersey, where they remained till June 1848, when 
they finally returned to England ; the defendant was, 
dunng all tfiis time, holding the situation of super- 
intendent, at a salary of 800/. a year, and the duties 
of the place prevented him from living out of Eng- 
land; he had remitted to his wife at diffenot times 
sums of money amounting in the whole to 600/. a 
year, being equal to the proceeds of her own pro- 
perty. Some letten were read from the defendant 
to his wife, in whidh be addressed her a&ctionately 
and ur^ her to rejoin him in London. One of 
those letters was dated March 1848, and pressed her 
to send him a list of the debts owing in Jeney and 
elsewhere, that he might see what arrangement could 
be made respecting them. After that letter no further 
dividend was sent to the defendant's wife. This 
action was brought for necessaries supplied to the 
defendant's wife and children between January 1847 
and May 1817, and between November 1847 and 
June 1848; the letter ot March 1848, was not com- 
municated to the plaintiff. 

Jervis, CJ. in addressing the jury said, — This 
case presents some difficulties in law, though the 
facts are dearly ascertained. It is a question en- 
tirely of prindpal and agent The general presump- 
tion is that the wife is the agent for the husband, but j 
if you tX3 of opinion that, at the time when the ' 
credit was given circumstances existed whidi rebut ' 
the presumption of agency, you will find a ver- ! 
diet for the defmdant. You must consider | 
whether, at the very time of the contrart, there i 
was any presumed agency existing, for nothing that 
happeMO after that period could in any way vary \ 

theitata of things. It is dear that at tiut time Oa 
wife was living aput firom bar husband. She wddU. 
then, primi faeii, be preeamad to have autho- 
rity to find him ; but that presumption might be re- 
butted by the feet of his having given her an ade- 
quate allowaace, taking into consideration his meana 
and dreumstaneea. Now she waa livtug at Jersey, 
reiwrted to bea dieap place, and hsdeOO/. a year, 
which was remitted to her. He had 800/. a year 
salary, so incumbered that he could ssaicely call 
10/. a year his own. I shall lea*e to you fheas two 
questions: — Fiist, were they living seiiarately 2 
Secondly, if they were, did the defSsnaJant maka har- 
an adequate aUomuioe? If these oocatiaoa •!» 
answered in the affirmatiTe, I shall laen direct »• 
verdict for the dafendant, with leave for the plaintiff 
to move to enter a verdict for himself, on the passage 
contained in the letter of Blarch 1848, and on the 
fact of no dividends being sent to the wife after the 
d^e of that letter. It mar turn out that that letter 
will alter the dsfendaat^sliithility as to thevAoleor 
as to a part or not at alL 

The jory fooad that thay were fifing apart, and 
the allowance was sirfSdent. 

Verdict for the defendant. 

OuatneU, Seqt and H. Hill, for the ptaintiiE. 

Bplet, Sajt aad Qromptan, for the dnfandant. 

ff ircvit Sfyoitt. 

B sport e d by 3. S. Sins, Bsq. BarrMsr4t-£aw. 

Mondm, March 10. 
(BtCsre Mr. Justioe Tai.vodbj>.) 
Rbs. «. GABONBa. 
Clss<» ofpr«teution~-Jndietment under itatuta 
AnindietmiatunderHwilatuie&S(9 Vict. c.l09^ 
which enact* that eveey perton who, byfirmd or 
unlawful device, or ill practice, m fuiqmv *t- 
eardt, ice. " ehall win from any other nereon-emy 
mm qf money or viduaUe thing, ihallbe deem e d 
guilty qf obtainimg tueh money or valuable iUnq- 
from tueh othar ptreon by afalte pretence, with 
intent to cheat or d^aud euch perton V tha- 
tame, and being eonaided thertqf, thaU bt. 
pumihed mecardinglft," ie, within the meaning <if 
the ttatutti Geo. 4, e. S4, r.23, which empowers 
the Cemrt to order the autt qf protMution* im^ 
indictment* (intsr alia) fbr " knowingly and d*. 
lipm i dly obtainimf my property by fait pir*- 

The indiotasent contained dgbt counts. Of the. 
first six, some aUsged that the prisoner, wiA aaa- 
Jamaa Bristoa, and another parson unknown, oaa- 
snind to cheat and defiaad Robert Hopkins, and 
did aetoilly cheat and de&aud him of the sam of 
five pouads, setting out the overt acts in various 
ways, «ll»Ei'»g them to be the inducing Hopldna to 
play at diveta gaasea of cards, and using packed 
cards. Othsrs of the six counia alleged the oon^ 
spiiaev to be to defaaud Chariea Royrton, and the. 
actually rhcating and defirauding bim of twenty 
pounds, by similar means. The seventh and eudhta 
counts were framed under the statute 8 & 9 Vict. 
c. 109, s. 17, and icapactivaly charged the prisoner 
wiA having won trata Hopkioa the sum of five 
unds, and fiom Royston the sum of twenty paaada, 
means of unbvrfnl devices, to wit, by paoking- 
and ananging the cards. 

The jury having returned a gsoaral verdict. Cft 

Huddletton, for the proaecntioa. made an ap-^ 
jdication to the leaned judge that the costs of the 
proaacutioB should be taxed, aad allowed by the. 
officer of tiie court 

Taltoubo, J. observed that the Court bad no 
power to grant the ooato of a prosecution for oon- 

Huddleeton begged to call his lordship s attent ion 
to the huagnace tf the 17th seetion of tiie statato 
8&9Vietcri09. That section anaeto "that aracp 
person who thai] by any trwai or unlawful devi^ 
or ill practice in plaThig at or widi cards, dice-t^ka^ 
or other game, or in Bearing a ^art in tiie stakes^ 
wagen, or adventnrea, or in betting on Uie sides or. 
handa of tiiem that do pky, or in wagering on the 
event of any gaoM, spoit, pastime, or exerds^ WIB 
from any other pOTSon to himself, or any other (r 
others, i^ sum of money or valuable thing, sfaall he 
deemed guilty of obtainiiig such money or vduable 
thing from such other penon by a nlae preteaee 
with intent to cheat or defraud each personofthe 
same, and being convictsd thereof shall be punished 
aceoidingiy." Now the statute 7 Geo. 4, c. 64, «. 
23, whidi enumemted the particular description at 
misdemasnors in which power is confeired on the. 
Coart to aUow the ooato of prosecntions, exuready 
for " knowingly and SmbeaMf 
any property by fUse preteooes. He 
sub mitted that tfab inoictmsnt was in substance an 

Digitized by V^OOQIC 




fKo. 417. 




indietment for obteining property, namely, money, 
hf false pretences, and was conaeiinenflT • prosecu- 
tion in which the prosecutor was entitled to costa. 

TjU.rociu>, J. said lie felt tliat tins was a case in 
wiiidi be ought to allow costs, if be had the power. 
He woidd consult Mr. Justice Fatteeon (who had 
left Worcester) and intimate the result at Stafford. 

At the sitting of the Court at Stafford on the 12th 
of Much, 

Talfoubd, J. said, — I hare consulted my learned 
brofiier Mr. Jiutice Pattesonwitb respect to the case 
of John Fredericlc Gardner, tried at Worcester on 
Saturday last, and he is of opinion with roe that the 
two last counts of the indictment did in fikct amount 
to a charge of obtaining money by Mse pretences, 
and that I have therefore power to order costs in 
this ease, which I a'M»>rdingIy do. I should much 
regret if I had not had the power. 


nvrtdttff, March 13. 

(Before Mr. Justice TALrouRD.) 

Reo. e. DuNKiNO and Another. 

Stioard for MHgenet in tht apprthetuion of 

Hfenden—Siatate 1 Geo. 4, c. 64, t. 28. 
A perton rttiiing in a hOHit broken into by bur- 
glare, and who, by fattening them m a room, 
detain* them there until attielance it obtained, 
and the capture of the offendertefeeted, it within 
the mtamng of the ttatute 7 Geo. 4, e. 64, i. 28, 
which enablet the Court to order pavment, by 
way ^f eompentation, to any perton who appeart 
to have been active in the apprehentton cf 

^niomas Dunning and Thomas Woolman, pleaded 
guilty to an indictment charging them with bur- 
^arionsly breaking and entering the dwelling-house 
of Elizabeth Holmes, on the 27th of January, 1851, 
at the parish of Bushall, and stealing therein one 
aoTereign-balance and case, one jacket, and other 
articles, the property of A^lUam Holmes; and 
therein also assaulting, with hitent to murder, the 
said William Holmes. 

Vaaghan, who appeared for the prosecution, 
appUed to the Court to award William Holmm some 
recompense under the pecoliar drcnmstances of the 
case. It appeared from the depositions that about 
two o'clock on the night of the above day the pri- 
soners broke into the house of the prosecutrix, who 
is a farmer, living at a hamlet called the Butts, in 
the above parish, by cutting six panes of glass 
out of the kitchen window. When they had 
got in they- collected into a bundle all the pro- 
perty they thought worth removing in the lower 
part of the house, and drank two or three 
bottles of elder wine and a quantity of beer. 
Tbey then took up, the one a constable's Etas', which 
bdcmged to William Holmes, the brother-in-law of 
the prosecutrix, and the other prisoner took the iron- 
bar of one of the windows, and proceeded up stairs 
to y^lliam Holmes's bed-room, and, in the dark, 
becan to strike at hiai while be lay asleep, and then 
inflicted three severe wounds on the head. He got 
up, stnu^led with them, wrested his staft' from the 
one, and struck about right and left, and got outside 
the door, and shut it, keeping the prisoners inside, 
and shouting aloud for assistance. One of his nieces 
ran out and Drought in some of the neighbours, and 
they all then went into the room where Uie prisoners 
were detained, and there they were found lying on the 
jtronnd quite drunk. Theywere, of course, secured. 
The wounds inflicted on William Holmes were so 
very severe that they produced concussion of the 
bram, and altogether so injured him that he was not 
able to leave bis bed till yesterday, when he was 
brou{^t here, and it was probable he would never 
reoovBT. He had been obliged to have medical and 
surgical attendance ever since the event, and he 
could ill aflbrd the expense. 

TAirocaD, J. — The circumstances under which 
nie statute (a) enabling the Court to order payment 
by way of compensation, are where any person shall 

(«) 7 Geo. 4, 0. «4, s. 28, which, " for the better remimeni- 
uon of penoDi who hafe been aotive in the apprehension o( 
certain offenders," enact* " That wha« any person ahsll 
Mipear to any Court of Oyer and Terminer, gaol delivery, 
so. to have been active in or toward the apprehension of 
any person charired with mnrder, or with relonionilj and 
maUeinuly shooting at or attempting to diacharge any 
kind of loaded flrearnu at any other person, or with atab- 

on the person or with araon, or with hone' atealing, bnDock 
ateaUng, or sheep steaUng, or with befaig accessory before 
the liMt to any of the offences aforesaid, or with receiving 
any stolen property knowing the same to have been stolen : 
every aneh Court is hereby snthorised and empowered in 
any of the caaes aforesaid, to order the aheriff of the 
ooonty in which the offence shall have been committed, to 
PVto the person or persons who shall appear to the 
Oonrt tohave been aotive in or towards the apprehension 
^aay person charged with any of the said oSences, mob 
a«m or soma of money as to the Conrt ahall seem reason- 
able and snfflcient to compensate anch person or persons 
for his, her, or their expenses, exertions, and loss of time 
in or towards snch apprehensian," &c. 

appear to hsrebeen active in the apprefaeiaion of 
ofienders. Is this a case within the statute ? 

VoMghan called attention to the fact that it Was 
by the presence of mind and activity of Holmes in 
closing the door upon the prisoners, and keeping 
them there until assistance came, their apprehension 
was effected. 

After referring to the Act of Parliament, the 
learned JunoE said he was of opinion that by giving 
a liberal interpretation to the lanmiage of the statute 
the present case was brought \rithin it, and be ac- 
cordingly ordered the sum of 10/. to be handed to 
William Holmes. 


• (Before Baron Rolpb.) 

Kbaskbt and Another r. The Sunobrlaicd 

Marine Insurance Compant. 

Reeognizancei by a corporation— Practice. 

Semble, that a corporation cannot appear by the 

directort to enter into recognizance!, but ihould 

appoint an attorney, under the common teal, to 

appear and enter into reeognizancei for it. 

'This was an action of debt on a policy of insur- 
ance, at the Durham Spring Assizes, I8S0, before 
Rolfe, B. when a verdict was found for the 
plaintiff's, for 315/. the amount claimed. The de- 
claration contained a special count on the policy, and 
a common count for money paid, and an account 

The defendants, who were a registered company, 
being dissatisfled with the verdict, resolved to apply 
to the Court of Ex. for a new trial, and pursuant to 
the requirements of the 23 & 24 sees, of 2 'Vict. c. 
16, " An Act for Improving the Practice and Pro- 
ceedings of the Conrt of Pleas of the County 
Palatine of Durham, and Sadberge," entered into a 
recognizance in 600/. with two sureties, the condition 
of which after stating the trial and verdict, and the 
intention of defendants to apply to the Conrt of Ex. 
for a rule to shew cause why a new trial should not 
be granted, or a verdict entered for the defendants, 
was in these words, " If, therefore, the Sunderland 
Marine Insurance Company do make and prosecute 
such application as aforesaid, or do satisfy and pay, 
if such application shall be refused, the debt, 
damages, and costs adjudged, and to be adjadged, in 
consequence of the verdict, and all costs and damages 
to be awarded for the delaying of execution, then 
this recognizance to be void, or else to remain in full 
force and virtue." 

The directors, at a meeting, affixed the common 
seal of the company (which had the name of the 
company on it), and two of the directors signed 
their names opposite the seal, with the word, "Di- 
rectors," and the two sureties signed under them. 
The two directors, and the sureties, then acknow- 
ledged the recognizance before a justice of the court, 
and the recognizance was filed in court, and notice 
thereof given to the pluntiffs. 

At the next Conrt of Pleas the plaintiffs obtained 
a rule to set aside this recognizance, unless cause 
shewn before any of the judges at Westminster, 
pursuant to sec. 14 of the above-mentioned Act. 

The grounds on which this rule was obtained 
were: — 

1st. That the defendants were not empowered by 
any statute to appear by their directors before the 
justice who took the recognizance, and enter into the 
said recognizance ; and that, consequentiv, such 
recognizance was not bindin;; on the defendants as 
a company or individually. 

2nd. That it did not appear from, neither was it 
alleged by, the recognizance, that J. C. and R. C. 
who signed the said recognizance as " directors " 
only, were at the time the said recognizance was 
entered into the duly appointed directors of the said 
company, and that they appeared for and entered 
into such recognizance by and with the authority 
and on behalf of the defendants. 

3rd. That the recognizance being conditioned for 
the payment of money and under seal, it ought to 
have been impressed with the stamp duty impressed 
on bonds. 

4th. On the argument a fourth objection was 
raised, viz. that the rerognizanre was so framed, 
that, obtaining a rule nisi on the lOth April, Ather- 
ton appeared at Chambers before Rolfe, B. 
to shew cause, when the learned baron adjourned 
the argument for fourteen days, observing, that it 
was proper the defendant should have an opportunitv 
to apply for a new trial. On the 19th April 
Knowlet applied to the Court of Ex. for, and 
obtained a role, to shew cause why a new trial should 
not be had, or why judgment on the first count 
should not be arrested, and why the verdict on the 
second count should not be entered for the de- 

On the 9tli May Aiherton shewed cau<e to the 
rule to set aside the recognizance, and argned — Ist. 
That the judge conld not set aside the recognizance, 
but the rule should have been for leave to sign judg- 
ment. 2nd. That the plaintiHs should have sign^ 
judgment at their peril. 3rd. That the joining of 

the corporation was surpluMffe, the 
being good without their being partiee. (ZMren v. 
Dixon, 2 B. & P. 443; and iTeene r. DearOam, 8 
East, 298.) 4th. That the corporation bad execoM 
the recognizance in the mode pointed out by their 
deed of settlement for their entering into contiacts. 
5. That no stamp is necessary. (Lopez ■r. JDe TVste/, 
8 Taunt. 712.) 6th. That the condition fa in tiie 
words required by the Act of Pariiament, aood thai 
obtaining a rule ntri satisfies the condition, aid re- 
ferred to Haworth v. Omerod, 6 Q. B. 300. 

On the 18th May Rolfe, B. ifischarged the rttie 
with costs, on the ground ihtt if the recognizance 
was bad the plaintiffs should have signed jndgmest 
regardless of the recognizance, but intimated aa opi- 
nion that the recognizance was improperly entered 
into, and that the company should have appointed 
an attorney, as suggested in Cwrtie r. The Kent 
Water Workt Company, 7 B. & C. 331. to appear 
and enter into the recognizance for them ; for tney, 
being a corporation, could not appear rather in pet- 
son or by their directors. 

The defendants afterwards brought a writ of ezm 
in the Q. B. and, to stay execution on the judgment, 
to enter into another recognizance, which tiiey 
did by appointing an attorney (by power of attorney 
under the common seal of tiie company, signed by 
two directors and duly stamped) to appear in Oe 
conrt or before a^ justice thereof, and for and oa 
behalf of the] company, with two sureties, to cuts 
into a recognizance which was accordingly done in 
the following form, and no objection was taken to 

"The Sunderland Marine Insurance Company, by 
Thus. Bum, tiie solicitor, their attorney in that be- 
half, duly nominated and appointed under the com- 
mon seal of the said Sunderland Marine Insurance 
Company, and you J. T. and R. F. in your own 
proper person, do severally acknowledge to owe 
unto Matthew Kearney and Robert Noonan, the 
sum of 794/. 2s. 4d. upon condition that the Sun- 
derland Marine Insurance Company prosecute their 
writ of error with efllect, and, if judgment be af- 
firmed, shall satisfy and pay the debt, damages, and 
costs recovered, together with such costs and da- 
mages as shall be awarded by occasion of tiie deby 
of execution ; and if the said Sunderland Marine 
Insurance Company shall fail to do so, you J. T. 
and R. F. undertake to do it for them. 

" Taken and acknowledged, " &c. Not signed. 

ir(«( Vivft/m. 


Beported by "Vf. St. Laon Baamow, Esq. B suist sr. 



Jan. 21, 24, and 25. 

(Before the full Court.) 

LffrLE, Clerk, v. Loan 'ViscotiNT Clbmbkis. _ 

Libel— Protection ofjuttice in the ereeution qfhii 
office — Hit acting bonS fide, a quettion for the 
jury— Notice of action— Abeenee qf maHee— Pri- 
vileged eommunicalion. 

A. T. a married woman, went before ajnatiettfue 
peace, and charged L. who wat a clerk in half 
orders, and one of the curatet of the pariihit 
which thejuttice retided, with having committed 
an anault upon her, with intent, S(C. 7Se jm/im 
toot down her ttaiemeni in hit oim handwriting, 
in the form of a declaration, timilar to, but net 
precitely in the form pretcribed by the ttat. 5 ir • 
Wm. 4, c. 62. ». 18, and tehedule, which, hmiv 
been tigned and acknowledged by A. T. he lignei 
and inclosed in an envelope, and gave it to her fa 
give to the rural dean, which the or her huiband 
accordingly did. It wat proved that the rural 
dean had told A. T. and her husband to go befiirt 
the nearest magiitrate and make her atatemeni, 
and that before they had done to, he (the rura 
dean) had requested thejuttice to act aa he had 
done, in order that a written statement <^ the 
charge might be submitted, if necetsary, to the 
bithop. L. having brought an actum <f UM 
againtt the juttice for the fiublication of /«» 
declaration, without having given him a monlns 
notice qf action, or laying the venue in the county 
in which the act was done, or proving the cause 
of action to have arisen within six months, the 
learned judge told the jury, that though tht 
defendant might have had jurisdiction to take the 
declaration, the publication qf it waa a per- 
fectly distinct matter, and that he had no right 
to publish it, and had acted illegilly in that 
respect, and wat responsible to the plaint^ in 
damages : and only lyt it to the jury to say whe- 
ther the declaration was a libel, and whether the 
defendant had published it : 

Held, upon a bill of exceptions, that he ougU, 
under the circumstances, to have left it to the 
jury to say whether the defendant bonfi fide be- 
lieved he wat acting in hit capacity and within 
hit jurisdiction as a magistrate in the disehaiV* 
qf hi* duty I and, secondly, to have told them that 

Digitized by 


Ana. 6. !«».] 




ifhtiid what h* did boni fide, and wUhna 
maHee, he wu froteeted from Kability to tike 

Ssetptiotu. — The deehntion, wtach was in case, 
ttld contained Atc oomits, stilted, in the first connt, 
tiut file pluntiffwu a clerk in holy orders of tlie 
United Chorch uf England and Ireland, and was 
onployed and officiatM as curate in the parish of 
Clcxme, in the Connty of Leitrim, and that the de- 
fcndant was a jnstiee of the peace for the said county; 
that a charge was preferred before the defendant 
«• snch justice by one Anne Thompson against the 
plamtiff, charging the plaintHTwith haring assaulted 
Mr. with intent, &c. and ^thot the said A. T. then 
«nd (here made a deposition before the defendant in 
-wuport of tlie charge, bnt tiiat no indictment or 
■oaer crimnial proceedings had been institated 
against the plaintiff in lespieet thereof, and that the 
■ame had still remained undecided; and that ibe 
defendant, maliciously intending to! injore the 
-plaintiff as such clerk, whilst the subject of nid 
■chaise was undecided, falsely and malicioosly, and 
not Ml the execution or discharge of the defendant's 
daty as justice of the peace, or of any official duty, 
and without any reasonable or prolMble cause, did 
publish, of and concerning the plaintiff as such clerk, 
tec and of and oonaerning said charge, a certain 
&Iae, scandalons, malidous, and defkmatory Ubel, 
pnrpiaiting to be the deposition of Anne Thompson, 
setting oat, with jnuendeea, Ae charge made by 
Aone Thompaan, which commenoed as followa: — 
" County of Leitrim, to wit.— I, Anne Thompson, of 
Clooncumber, in said county, and in the parish of 
Cloone, do solemnly and sincerely declare," &c. and 
condnded in the following form : — " And I make 
the mbore declaration, conscientiously beUering the 
none to be true. Taken and acknowledired befbre 
me at Lough Rynn, in said connty, tjiis I2th day of 
March, IBSe. " CLnnNTs, J. P." 

" AwKK Thowpsow." 

The count also averred special damage to the 
plaUfUff. In tbe second conrit the document con- 
tFi»"»«C the alleged libel was described as a " deda- 
ration," and not as a deposition ; the third connt 
was similar, but omitting the averment of 
HiB absence of reasonable or probable cause; 
fta fourth count averred that the defend- 
ant pretended and alleged that a charge was 
pnbrred before him as a justice of the pi :i r. :iti<I 
Uot he published a certain Bbel, Ac. purporting to 
lie the declaration of Anne Thompson . &e. and of 
■ndetmoeming the sud ^pretended charge. In the 
fffih count, which was similar to the preredinp, it 
was alleged that defendant was in the Imbit of acting 
as a justice of the peace. The defendant having 
rieaded the general iasne, the case was tried before 
ae Ldtd CUef-Justioe at the Nisi Prins sittings of 
^m Court after last Michaelmas Term. The Rev. 
^jAcar Hyde, the rural dr:in of thp digtrirt in wlnrfi 
Ae jdaintiff officiated, proved thnt he imt! received 
(he ori|;inal document containini; tlie alleged lilid 
frou either Anne Thompson or lior husband James 
'niompson; that it was in the defendant'!! hniid- 
writiag; that he had apitripcd tlio j>(aintift' of iia 
contents tfaron^h the Rev. Mr. Hogg, his btotiier 
curate. Tlie witness also stated tbat it was in his 
capacity of rural dean that he had received the do- 
eament, wfaidi was handed to Inm in an envelope, 
Imt whether sealed or not he could not recoUeet, 
MtdOiatif there was any address on It, it was in llie 
defendant's handwriting; that he gave it to Mr. 
Hogg that he might shew it to tile plaintiff's rertor; 
tiiat, in consequence of a written application from 
&e plamtiff, he had ||iven him the copy now 
produced; that the witness never gave a copy, 
aiotpt the one mentioned ; tiiat the charges 
eoBMned in the declaration, were intmded te have 
heen made the subject of a complaint to the bishop 
of the diocese in which the pluntiff officiated, but 
wen not, in consequence of the plaintiff having re- 
rigned his cuncy; that, in consequence of what 
James Thompson, and his wife, Anne Thompson, 
had stated to him, he (witness) had suggested to 
them to go before the nearest magistrate, without 
naming one ; that two days after that he received 
the doenmeiit from them (the Thompsons) ; that 
larevions to the taking the declaration he had a verbal 
ODOimnnicafion on tiie subject with Loid Clements, 
in which he suggested to him (Lord C.) to take it 
himself— first, as the character of a dergvman was 
involved ; and, secondly, as he did not wish to tres- 
IMi on the bishop's time without having some^ing 
•tronger to go upon than a mere verbal statement ; 
^Bat me document was all in Lord Clements's hand- 
'*iiting, and none of it in that of his clerk ; tbst the 
iHion assigned by the plaintiff fbr wishing for a copy 
xrf K, was to shew it to the bishop. The witness 
'*Im stated that he never knew of any misnnder- 
Aaading between the plaintiff and the defendant, 
■ad that he shewed the document to another 
ivm dean, and to tiie senior clergyman of the 
moose, fbr tiieh- advice, and that he believed thattiie 
'nnal dean was the proper channel through wUefa a 
epmplaint should be laid before the bishop. The 
"«v. Mr. Hogg, who was prodiKed on (he 

▼•ft. zvzz. vo. «xa. 

part of (he phinliff, stated the defendant wis 
a parishioner of Cloone; that he knew of ao 
diflerence between him and the plaintiff; and 
that tiie latter expressed an anxiety to have the 
contents of the doeumeat submitted to the bishop, 
"nie defendant's counsel called on the Lord Chief 
Justice to nonsuit the plaintiff, or direct a verdict 
for the defendant, on the ground that no notice of 
action had been given to the defendant, thon(^ it 
appeared that he was a justice of the peace, and had 
done the act complained of in his capacity as such 
justice, and also that for the same reason the venne 
should have been laid in Leitrim. The learned 
Chief Justice refhsed to nonsuit the plaintiff, but, the 
defendant having closed his case without offering 
any evidence, told the jury that in U« opinion the 
document was libellous and defamatory, and that 
the publication of it by the defendant was not on a 
justifiable occasion; and that, althoagh tiie de- 
fendant might hare had, as a magistrate, jurisdietion 
to tAe Ae declaration and to decide the case, or to 
take informations, yet that tiie act of pubhoation 
was perfecfly distinct from the taking of the deco- 
ration, and that the defendant had notigfattopnbliah 
it; and that, in so doing, he went plainly and 
distlncfly beyond his province, and acted iUegallv ; 
and that his conduct being illegal in that reapect, he 
was responsible in damages to the plaintiff, and left 
to (he jury to say, first, whether the declaration was 
a nbd ; and, secondly, whether it was pablished by 
the defendant. 

The defendant's counsel excepted to his lordship, 
on the grounds that he ought to have nonsuited the 
plaintiff for the reasons above stated ; that he ought 
to have told tiie jury l^t the act of the defendant 
was privileged, under the ciroamstanoes ; and that, 
though the publication was the act of the defendant, 
yet uiat they ought to find agahist the plaintiff if 
they believed that it was done bv the defendant 
(oaia flde in the execution of his duty as a magis- 
trats. There having been a verdict fgr the plaintiff 
for 200{. damages, the case now (Januaiy 2l8t) cam* 
on for argument upon the above exceptiens. 

Hoj/et (with whom was iTOonaffh, Q.C.) in sup- 
port of the exceptions. The defendant was entitled 
to a month's notice of action, and to have had the 
vnar laid in the county of Leitrim, aad evidence 
traght to have been given by tin plaintiff that the 
act complained of hM been done witiiin six months 
before the commencement of tte aotion. (12 & 13 
Tict. c. 16, ss. 8, 9, 10, & 12.) The defendant acted 
in the transaction as a magistate in the discharge 
of his duty. It was part of the duty of the defend- 
ant, pursuant to the & ft 6 Wm. 4, c. 62, which was 
passed to prevent the taking nmecessary oaths, to 
take "declarations," and it vronld have been a 
breadi of duty to have refused. The 18th section of 
the 5 & 6 Wra. 4, c. 62, provides that " whereas it 
may be necessary and proper in many oases not 
h ei e iu specified, to require confirmaticai of written 
instruments, or allegstions, or proof of debts, or of 
the execution of deeds or other maltert," it shall 
"and may be lawful fbr any justice of the peace, &c. 
to take the declaiatioa of any person voluntarily 
making the same before him in the form of the sche- 
dule to this Act annexed." And it is enacted that 
any penon wilfhlly making a false dedaration shall 
be deemed guilty of a misdemeanour. It was also 
the duty of the defendant to deliver the dedacation 
to the person making. If he had letained it, the 
purpose of die Act wonM hove been defeated ; for 
i n st a nee, it is the pnctice for vendors of property to 
nuke solemn dedsratisns about ii>eambaancea : at 
vrhat sse vroaM tiiese he if the magistrate had the 
power to detain them ? The defendant in deliver- 
mg tiie document to the party, iiowever, used the ut- 
most caution to piewul its contents being known 
to any one except the paitiet nakiag the 
inquiry. [Champton, /. — Brit where was the de- 
fendant's jorisdiotion to take the dedaration at all ?] 
The 18tb section ef the Act of 5 ft 6 Woa. 4. eas- 
pewered him, aad where powen are latnstad to a 
public officer it is inoambeat on him to act. The 
bishop might have objected to exhibit crimind arti- 
cles agidastthe plaintiff natS sooMthiag masvfkan a 
mere verbal statement appeared. But a magistrate is 
witUnthe protection of the statute if he bond fide be- 
lieves himself to be acting in the exercise of bis duty. 
[MoOBK, J. — May not (he words "other matters," 
m the I8di section, mean natten of a similar kind 
to tirase previously enumerated ?1 The enaatia^; 
danse is saffidently aztendve. [Paaanr, J. — Has 
tiie jnstne a right to take a dedatation in a ease 
where he can institnle a jndidal proea e d in g ; as, far 
example, where he aright have taken the infenna- 
tsens of this woman aipiast the plaintiff far the cri- 
minal offence ?] Assuming the offenoe to have been 
both aa eodesiastiail and a dvil one, the eodesias- 
(aeol lemedy may have been selected; the case woald 
hare been different had it been a charge of fdony. 
If the defimdant acted bor^ fide on a mistaken view 
nf the law, it proves it to be the very ease in which 
notice of aotion oaght to bane beeaf>iven. {Birdy. 
IhmettM, 2 Chitty, 459 ; Beeciuy w. Side; 9 B. & 
€. 896, per L«rf Tenterden ; C—k* v. dtritt, 10 

BiBg.l9; AfJ/twer T. Phrr^ 1 M. ft W. 628. p« 
Loid Abiager; RtUld v. 8coU, 2 Scott's, N.R. 6U; 
Hughei v. BackUnd. pa- Relie, B. 15 M. ft Wl 
346 : in Wedge v. BerieUy. 6 Ad. & Ell. 667.) 
Lord Denaian says — " If the plaintiff meant to say 
that the defendant acted in the execution of hii offioa 
oeloorably, or to disdiaige an old grudge, or nthea 
wise, in had ftith, he should have required tiia 
leurned jodge to have pat the questioo of iaaa 
fidai to the jnry;" and in nie same ca«i 
littledale, J. s^a, " Whether the defendant is en- 
titled to a verdict on the merits, and whether he is 
entitled to Botioe, ase 'vary diSerent inquiries. If ha 
had notice, and the merits were against him, ha 
might tender amends." {Horn t. 2nti>raioraa;^ 
3 Ex. 346.) The Lard Chief Joitice in this case 
told tiiejarr in his charge, that tiie defendant might 
hare been right in reaeivioff the decla ra tion, tho^^ 
answerable for the pnblicatien of it. [BLACKBUun, 
C. J.— What I t»ld the wry was, that whatavar 
might base been the jnrisaiotMn of the magistrate 
in acrimiaal case, he certainly had no right te maka 
Umself aacillary to the pnUicatiaa of such.] Xha 
case of TheobaU v. (kiekmore, 1 B. ft Aid. 227. 
Aews that the whale laoseedina aaaat he takea •• 
one tianaactian. [Moout, J.— -Suppose a complaiot 
mads before a magiatMte in respect of an indintahla 
offiaoce, and an inMnnation is takeo, would he ba 
wanaated in aialfiac tins the a wd inm of srsaM 
agsinst the party .'] No ; but the question fbr th* 
jary hare ww, wtethar tiie <iefendant acted iaai 
>U«— and did he bdieve Hbet be was acting in th* 
execution of his dkity. [liooaa. Jf.— I msrsly ^ 
a esse wheae a ssagialrato is jostified in taking la- 
formationa, hot xaiitea ao iaapaoper uss of tbonj^ 
[CaAMProN, J. — Assnsaiac the esse to be ssia at 
privileged oaaunnnicatiaik, there ore certain note 
wiiich a man may do, sn A aa making a speech im. 
Ite House of Commons, lint if he publish it ha 
hecooaes responsiUa. Had thedefenoaat seatthi* 
dedaration to the aditcr tt a newspaper, ]m 
oould not possibly have justifisd tlie Act.] lit 
this esse the pubUealion was a part of tiut 
oiiginal tmnsantinn, and therefore the t — 
ticn should be left to the jnry as to the character in 
iriiioh it wss done ; the question of the publication 
haring bean privileged was likewise a question for 
the jury. (Imte'w. iTnij/, 1 Saund. 131, a.) In fair- 
man T. .feat, 5 B. & Ahl. (AT, it was held that evi- 
dence was admissible ta slicw that the party believed 
the frets ta he tree. I Weathertlon v. Hawkiut, 
IT. R. 110; DmmuM y. Bi<iqt:, 1 Camp. 2C9, in 
note: ChiU v. Afleel. 9B. &C. 4a';; IVyatl t. 
Core, Holfs N. P. 2*9.) [Crampton, J.— This 
anestton was considered in Stack v. Holmes, 1 Fox 
ft Sm. 28, in this Court] 

CmrleUm aad JTarMgr, <tX:. in sanMit of the 
vcrdiot — ^The fact of a jastice af the peaee being a 
wrong-doer doss notantiiile him to notice of aelioB. 
Foriastanos, if an action is hcoagfat against a msfia. 
trate for tlie tendoleBt aenovd of prDpectf te aaaiA 
a di al S'Bs a , he is not entitled te notice. TheqaestisB 
osss is iidii^hw he is acting in the ezacatian 

of his daty. In actions aaainst a justioe a dimiatti 
may oriaeasto thelawortaefeets. The esses cited 
for the dsfsndant are of the latter class. Thqr 
admit tlie existence of authority in tiie magistesttb 
while they dispate the tacts on tMassnmsd exialeaoB 
of which the exsreise of that anthoDty is based. 
((TeNerv. 7We.9S. 364.) In this esse there sn 
tero parallel qrnestiaas dosely appreaimatia|. bat 
aar meeting, aoe for the Coort, the other far Ike 
jury. The first is a ^estioa of law whetlier the 
aet conqdained of besis sooh a Isgsl nsemhlanoe to 
the line of the wingistwte's dnty as to afford a paa- 
SBBHrtion tbst fas kemi fide hebeved he was acting 
within the scope of hasduty. Tlie seoond is a qnea- 
tion of kmUifidee in fact; what Jeremy Bea&ssa 
cslls a psychological fiKt, and is a qaestion for the 
nry. By the 20th ssetisn of tiie statute 12 ft 13 
Vict, c v9, a iiistislislii is boond M Mtaia evetjr 
infetmalion to Ite elsrit of the Petty Ssssions. 
[CnAHPTON, J.— If the defendant had traasnutted 
tiie dedaration te the Potty Sessioiu he woald haw 
taken a nost affective way of fiviag it pafaiicitgr.] It 
was not an inforaiation takea in the msnaarpsa- 
scribed by the statate,aad the magislnte not ha«iqg 
pursued the coarse pesaerifaed by law. oaaaet ami 
rely on his being a lua gi s l i ate to protect him. Ao- 
oording to the iaterpratalisn of the words "ether 
matters "in the 18 sec of the 5 ft 6 Wm. 4, c. tt, 
the defendant's coanssl, or any person whatevor. 
may tender to a magistrate any Btatement, whether 
it be alibd, a alaader. or hlss p h c my, if bs hnngsit 
to him as a dedaration ; hut the stttate ealy lae- 
vides for the sobstitntiao of dsela m tio BS wheie pie- 
vionsly oaths oiigiit have bssa taken (A f s tss ^ y T. 
Barlley, 3 Camn. 2M)), aad also in cases of tamo 
proceedings of raraign coaris. The words "otter 
■oatters " mean other matters tfmdem mmtW, ssch 
as the execotioa of deeds, &c ;-tbe defendant aoted 
at the saggeatioa of a third person, who pat hisain 
motiaa, aad who haid no right to do so; to tekeit 
most strongly for the defendant, thatto listaa ta the 
I compUnt, andtotakeitdonmiawxitiDg wBswitUn 

Digitized by V^OOQ IC 



[▼oL 17.— Mo. 418. 


{be wope of his datjr— that does not give him pro- 
fectioD ; actmg in the apparent loope of his dut]r be 
took thu information, not in the shape of an infor- 
mation, hot as a dedaration. Now the ex parte pub- 
lieation of a charge, no matter how regoliuly taken, 
ia UbeUons. (Rex r. Lt*. ft Esp. 123; Duncan v. 
TkwaHei, 3 B. and C. 556.) U a third person, as 
tite proprietor of a newspaper, having reoeiTed a 
copy conld natiuatify tb» niblication, how could a 
niapitrate? Why shooU be be justified in doing 
that wluch no other member of the community could 
be justified in doing? Can, then, it be said that where 
• juMioe has proceeded irregularly his pu b lication of 
we matter, of the diaiacter of wUch there can be no 
doubt, it having been found by the jury, can be jus- 
tified? The rnult of tlie oasea which havA been 
dted on the questkm of notice is, that where 
tiie magistrate has acted in the scope of his 
jurisdiction, but has exceeded it in some dronm- 
■tances of time and piece, then it becomes a question 
of himajUitt (Hmghety. BuekUmd. 15 it. &.W. 353, 
per Poltoefc, C.B.) ; but no oaaa is shewn in which 
notice was required, where, as here, not one single 
step was taken in the direction of duty. Upon the 
question of privilege, fai rmaa v. /«s(, 5 B. & Aid. 
m2, is disttngoishable ; the complaint there was 
madeteMftbfo toaquiiter who bad the power of 
redressing it, though not by a judicial proceeding. 
[PuuiN, J.— Here the rural dean directs the parties 
to go before the magistrate, and he communicates 
iritfa the ui aglstrate> stating tiiat he wishes the deda- 
ration to be taken, in order that he might act on it, 
if necessary, and then he inclosed it in an envelope 
to the rural dean; if lis does that ionS/idt, is it not 

Slvileged ? Can it be said that the defendant is 
veMed of a personal inteeest in the good conduct 
of tlMiuiiisterofhia paiiah? ||CaAMPTON, J.— Or 
■nppoae the magistiate had seoeived the dedaration, 
and wishtag that the diarge against the party should 
be investiptsd, as, if the charge was true, the person 
would be very unfit indeed to continue as mmister 
of the parish ?] There was not the slightest evi- 
deuce of anything of the kind here ; there was no 
evidence of Lioid Clements having acted ;iui 
parishionCT; he never songlit to investigate tfao 
complaint ; he never asked the Irishop or rural dean 
to investigate it; the rural dean asked him to take 
Oia declaistion, and, after he took it, he never made 
any investigation on the subject. R. v. Beare, 1 Ld. 
Bay. 416ri^aM «. Are, Holt'a N.P. 299, are dis- 
tingidahable. The true test of aprivilcged oommu-- 
nication is, that it is a communication to be put to 
aome use ; but this communication was put to no 
use. Blagg v. Sttirt, 10 Q.B. 899, and i^. in £x. 
Ch. 906, and I Taylor on Bvid. 39, 40, were also 

WDonouffA, Q.C. in reply.— In Wtdgt y. Berii- 
le|r,6A.ftE. 669, Colen<lg«,J.'say8 "The distinction 
is clear between that whiefa amounts to a defence, 
and that which entitles to notice." lUie the de- 
fendant was admittedly a justice of the peace for tlie 
county, and had juiisdiatMm. and it is conceded that 
he might have taken an inlramation on oath ; he was 

Sbed to as a magistrate^ he did not volunteer, he 
nly assumed to act as a justice of the peace, and 
eved be bad jurisdiction to act aa he was called 
onto do. Admitting that in the entire of that act 
Us taking tiie declaration, and returning it in an eo- 
vdope, he was not entiiely wammted, that is prs- 
dady the state of things entitling him to notice of 
an action ; the acta be did ware not alien to bis 
jurisdiction, nor done dhtno Mtutv. (Wedge v. 
BtrMey, 6 A. & E. 669; Haeelduu v. Orote, 12 
L. J., N.8. 10, H.C.) If a magistrate were a per- 
fect lawyer he wouU not require notice at all. ft is 
where a man acting bondjUe transcends his autho- 
rity, that he is entitled to notice, in order that he 
may have an opportunity of making amends. (Co* 
T. iteid, per Patteson, J.. 13 Jur. 563.) If the 
plaintiir seek to rehr on the ground that the magis- 
trate acted BO illegally as to dis e nt i t le him to notice, 
be ought to have caused this question to be pat to 
tbejury. The question of ioMl >daf is for the jurv. 
The case suggested of a magistrate rescuing his goods 
under a disbtas is not ia point, for in fueh case he 

there says,— "In general, an action lias for the 
malidoua publication of statements, which are folse 
in foct, and iiqurions to the character of another 
(within the well-known limita as to verbal slander), 
and the law considers such publicstion as malicious, 
unleas it is ftirly made by a person in the discharge 
of some public or private duty, whether legal or 
moral, or in the ooodnct of his affiun in matters 
where his interoat ia concerned. In such cassa the 
occasion prevents the inference of malice, which the 
law draws from nnanthorised commnnlcatioaa, and 
alfords a qualified defence, depending upon the 
absence of actual malice ; Vfmrlg warranted by any 
reasonable occasion or exigency, and honestly mads, 
such communications are protected for the common 
convenience and welfare of society; and the law has 
not restricted the right to make them within any 
narrow limits." Those abstract propontiona are 
universally true. No one was produced to shew that 
the defendant ever spoke to any one on the subject, 
and he indoeed the declaration in an envelcqw to 
the person who requested him to take iL [Blaok- 
BDUNE, C.J. — If you were justified in sending the 
communication to the rural dean, you are not an- 
swerable for what he afterwards did. Cramp- 
TON, J. — It is to be remarked that Lord 
Clements communicated the focts only to 
those who knew them before.] The case of 
Re The Vetn <ff Ywk, E. 35, and 1 Black. 
Com. by Staph, shew the authority of the biahop to 
act in such cases. The resident rural dean requested 
the defeoduit to act. In Padmore v. Latarenee, 
11 A. & E. 382, the Court adopts the rnlinf in 
Toogoodv. Spyrin^, holding that persons who institute 
complaints on subjects in which they are intemtad 
are privileged. (WHgkt v. WoodgmU, 2 Or. H. & 
R. miWard v. Jolly, 6 C. & P. 499; IMnm v, 
(Troew, 4Esp. 193; Woodward y. Lntier, 6 C &. 
P. 548.) [Moore, J.— In the case dted by Hr. 
Martlev from 1 Q.B. Rep. (Blaagt. Stirt), Baron 
Parke left the question of iona fidet to the jury.] 
In the present case Lord Clements was no volunteer. 
The onlv fault of which he has been guilty is, that 
he acted with the delicacy of a gentleman, and in a 
manner befitting his station. Cur. oAr. ntW. 

Satwrday, Jim. 25.— Bij^ckbdenb, C. J.— A» iiie 
timo approacbea for serving notice of a new trial, 
I take this opportunity of stating, that in the case 
of IMtle V. Lord Clement*, the Court are unani- 
mously of opinion that there ought to be a new trial; 
they think that I ought to have left it to the inrv to 
say whether Lord Clements did tond fide bebeve 
that he was acting in his eapadty, and within his 
jurisdiction as a magistrate, in the disohar|e of hia 
duty ; and, secondly, that I ought to have mformed 
the jury that if he did, what h* did bond fide 
and without malice was protected from liability. It 
is not necessary to enter more into detail, but if the 
case goes again to a jury, that is the direction in 
substance and in letter which I shaU give. 

Venire de 

priaaner who waa unable to emptor <>■>■ • l>at t 
thought the caae different as rmrdad an attorae 
A case occurred at the Special Comnoisaiaa in CIs: 
mal. before himself and the Lord Chief Joatice (Jiq 
V. Cody), in which an attorney had been paid i 
certain services, and refused to act farther witlm 
reonvinf fiirther remunoalion; the Chief Jostig 
and himself were of opinion that they had no pan 
to compel him to do ao, but they celled upon Ht 
nolastoa to defend the prisoners, and be conseatei 
to do so without the aisistanm of am attorney; tad. 
afleraaaUaadefattoa as ever he (the Chief Bsni 
had heaid iu a court of justice, the priaoncf* em 

Matmeetan said he entertained a B^eet respectfa 
Mr. Roleston. but he dissented from the pTo/atf 
of the course taken by him. Perrin, J. hiil a- 
pressed a decided opinion tiiat oouoael oughtaKB 
act without an attorney. 

Pioorr, C.B. said ha oouU not oompd csastl 
toaeti he could do no mora than appeal to the IOC 

Mwrpay (solicitor) having eonaented to sets 
attorney tor the prisoner, itaemeeAan ooascatel B 
act as oonnasl. 

does not sssume to act magi«teriallr. Preetige v. 
Woodman. 9 B. & C. 12; and WelUrr. Take, 9 E. 
363> are against the pfaunti£ Briggi v. Evelyn, 
2 H. Bladtst 114, shews that the pnaumption is in 
favour of the justice having acted magisterially; in 
the eases in vrhieh notice was held not to be requi- 
site, the acta of the justice were deatitute of autho- 
ritv, both in law and feet. (Cahereon v. IfiMoa, 
2 M. & R. 200; Briyge y. Baelyn, 2 H. Blackst. 
114, a; BaUmger *. FerrU, 1 M. & W. 629; 
Baghm v. BmeUand, 15 U. & W. 351; Bird v. 
Oamsleii, 2 Chilty, 461; Tkeoiald v. Criekmore, 1 
B. & Aid. 227: Malamey v. BarlUy, 3 Camp. 
211.} IfaBce has been negatived by the only 
two wUneesea who wan produced. On the 
qneation of privilege^ the rule as to privileged 
communicatians, as laid down by Parke, B. in 
nofoad T. Bpyrtng, 1 Cr. M. & R. 193. u now 
-aaivarsaUy adopted; ifithasbeeninanyway modi- 
IM, it has been extoided, not limited, titke, B. 



Chief Baron Pioorr took his seat in the Crown 
Court at half-past nine o'doek. 


Rko. e. Andbbw Fooabtt. 
In this case the prisoner was charged with the 
murder of his wife, Margery Fogarty, by adminis- 
tering to her a dose of atsenic, at Kilked, on the 
26th July, 1850. 

PiooTT, C.B. after conferring with the Crowa 
Solidtor, addressed Mr. Macmeehaa, and rei^aested 
that he would undertake the defence of the prisoner, 
who was unable to employ attorney or couniMl. 

Maemeehan replied that he had no objection per- 
sonally to act, but there was a feeling and opinion 
existing on the subject among the Bar wluch com- 
pdled him to beg that his lordship would excuse him 
for decUniog. 

After some oonfereooe among the maoibers of tha 

Sir Tkoma* Staple; Q.C. rose and addressed the 
Court — He said that on the part at the Bar he 
thoui^t it right to state that there was a feeling 
among them m which he quite concurred, that no 
counsel could, with propriety, undertake the defence 
of a prisoner without recdving instructions from an 
attorney. He also had to say, not on the part of 
Mr. Mae m eeha n , but on the part of the Bar, tlsstin 
every case in which counsel was assigned, the Crown 
should pay him a fee; up to a very recent period it 
was a rule to do so. 

PiooTT, C.B. said he could make no rale upon 
the subject of payment of comuds* fee in sndi eases; 
but he would certainly recommend that it should be 
paid by the Crown, and it was his own opinion that 
Uie fee ought to be paid. With respect to the aa- 
signment of counad and attorney for a priaoaer. it 
was his opinion that a judge might with pro p rie t y 
call on a barrister to give his bonofary ssrvioss toa 

%nmo <nuuroa&&o»*s emmt. 

Bsportsd by BicaABS Oacmm Wauroaa, Af. elte 
Inasr Tample, Barrlitsr-at lew. 

Ellu ». BOWIIAX. 
la it M i l i l y M e ni age eontraet—Uame to tr/fmt 

(ffa dte e a ie d hmatie to eonirmet marrwyi 
noufA a pereon met found buuitie from tfnl 
antecedent to a atarriage contracted tylmai 
a eon, tke itene qftkat marriajfe, kad ev^o 
esfof* detieed to the Umatie and Ue eUlio,mt 
UMimat* eluld,t*tCoart wUt noldeaii^ 
the validity tf each marriage mtkmt m ma 
directed to try the fact. 
This was an appeal from an order of & KiAr of 
the Rolls, directing an issue to txf wkckr i Xr. 
Bailey Biid waa, wi the year 1818, at tbtiaeof Ui 
matnsf*, • person of sound mind, ntoderm 
made in July 1850^ and the appeal am s^nidk- 
cauae tha issue stands for trial at ti* prosstaaini 
for Norfolk. Tbefetberof Mr.lU msasidi- 
teat and survevor at Norwidu Be fid ia UU, 
and beqaeathed eonadciable property It tn<m f<* 
the benefit of liiswid9wand their aelj a»,iaiia 
the event of the so* dying witbont isstcttai fcr 
the benefit of hia sister, the plaioliff, Mn. BBl 
The son had been of weak intellect from ts cil 
age ia consequence of imptoprr treatment dum^ b 
iUneast and the teatator ia hia will igat Anchcai 
with respect to the allowanoes he waa to receive f> 
bis maintnnanoB. In 1818^ with Qie oooKat td 
approbation of liis mother, he macried one i>H 
FuUer, and he had a sou, the issue of thatmsimft 
in 1819> but before the birth of the chiU the pUd 
obtained a commisainn of lunacy, and the jorr i^ 
the said Bailey Bird .to be of ansound auodb 
twenty |rears previous to tlie marriage. The filial 
of the jurr was confirmed, and cooamittees of tki 

person were duly apoointed, bat » 

prooeedinn were taken to annul the msniaie be- 
cause the Court refused to permit them to be unfa- 
taken at tha expeaae of the lunatic's estate, uvU^ 
plaintiff was not in acoadition to undertske them it 
her own. In 1825 the wife of tlie lunatio died; ^ 
1843 he died himaeU, and in 1815 hia son died, tftv 
having made a will id which he dispooed of il U> 
propeirt]r in fevour of the family of William BsuUiT- 
Under these ciicumataocea the suit was institatel m 
1847 aninst the trustees aud agwnat Bauldiy. tlK 
plaintiff claiming under the will of her father, oo tbe 
ground that Bauey Bird being an idiot and iDafHt 
of cootzacting marriage, and the issue of such n''- 
risge being illegitimate, she was entitled to the ei^it 
of the property bequeathed by the will of tbeftthA 
and the son of Bailey Bird had no right to aub 
any disposition in. fevour of Bauldry. The UssW 
of the Rolls thought it was one of those cases tbil 
the Court never disposed of without the interrentifli 
of a jnnr, and ha nude the order, against which tlK 
phuntifl^ appealed, on the ground that there n^ 
abundant evidence to justify a decree without sack 
intermediate proceeding. 

Jamei Parker, Miller, and Selteyn, for theapped 
dted Baaa* v. Blood, 3 Bro. P.C. 632; Clarir. 
C{eri,3Vernon,414; Attorney 'Genertay.Panttir, 
3 Bro. C. C. 440: Ball v. Warren, 9 Yes. S»; 
McAdam v. Walker, 1 Dow. 177; Pietering t. 
Higgineon, 27 Aug. 1807, Q,B. ; Browamt '• 
PMrse, 2 PhiUim. 59; Short v. Lee, 464. ^ 

Bolt, Ooodeve, and Barrett, contra, cited I Boiri 
Abridgment, 340. c. 8 and 10. aqd SST, Boa. 
Bastiwd; Uargreave's Coke Littleton, 88; SttM*<* 
Martoa; Serueeon v. Sealey, 2Atk. iXZi-UXtm^- 
Oonyere, 4 Ex. Jtep. .18; the PorimMltM <*»> 

Digitized by 


Apbil 5, 1851.] 






HafgBil'tEecl.Caiw; Parttr t. Ptrttr; Let'/ 
cuet, ToL 2.382; Leggaty. CtBrin, MilwBrd'i 
IrUh Eccl. Cases, 397. 

The LoKD Chancbllob.— The bill is filed by 
Mn. Ellis for the purpose of establishing the wiU 
of Bailey Bird the elder, unia which (made in 
1814) the plaintiff was entitled in remainder to the 
moper^ thereby derised, the dense being first to 
Bailey Bird the younger, and to his diildren, be not 
having any child at the date of the will. He was 
married in 1819, and there was a son the nndonbted 
issue of that marriage, who died in 1843, having 
made a will of this property in favour of William 
Baaldry. He and other parties interested were made 
defendants to the bill. The main qnestion is, 
srhether this last testator, the son of Bailey Bird the 
younger, was legidmate ; for if he was not, his will 
was CM no efieot against the plaintiff's title ; and that 
question again depends on the &ct whether Bailey 
Bird, his father, was of sufficiently sound mind to 
<ontr>ct marriage at the time at which the marriage 
de Jaclo took place. The plaintiff alleges that he 
had not at that time capacity to contract marria^ ; 
and she relies on the net that under a commission 
of' lunacy issued soon after the alleged marriage the 
iufy found Bailey Bird to have been of unsound 
mind then and for twenty years ^ireceding. It was, 
however, argiied onbelialf ofBanldry, the appellant, 
that Mrs. Ellis could not be now heard to impeach 
the validity cfthe.marnage, she Mw>s aasented to 
it aMhe time, or at all events having acquiesced. I 
have made myself perfectly acquainted with every 
point irk the affidavits, but I will not now state the 
mipressions made by them on mv mind, as the 
matter is to undergo further inqoinroy my affirming 
the order of the >faster of the Rdb. It was argued 
that the-Court ought, if possible, to^** eCfeot toths 
marriage after so long a tfan% partumlarlf after the 
alleged aeiiuiescence of the person lAo now rnipeiiehes 
the validity uf it. I cannot admit that there was 

Iff having tht eaiefiMy diteuued, will not, on thf 
dSmhargi «n apptal qf tht order made agaimC 
him, be alloitedhit cotit in the Court below. 
In tills case an order had been made bythe Master 
of the Rolls Cor an injiuiction restraining (Ue defend- 
anf from restricting his copartner, the plklnttff, in 
the enjoyment of his partnership rights according to 
the terms of the partnership articles. The plaintiff 
and defmdant are partners as brewers, maltsters, 
and wine and spirit merchants at Romsey, Hants ; 
the defendant having brought the capital into the 
business, afterwards sought to exclude the plaintiff 
from participation in its management The injunc- 
tion granted by the Master of the Bolls having been 
systraiatically disregarded bf the defendant, the 
plaintiff gave • notice of motion before the Master 
of the Bolls for the appointment of a receiver and 
manager of the copartnership business, and that the 
defendant might stand committed for breach of the 
iqjmu^n. Imt motion having stood over for some 
time at the defendant's request, and on his promise 
to act in strict regard to the partnership articles, but 
none of such promises having been kept, notice 
waa given to the defendant that the motion 
would be brought on the 8th of May, 1850. 
Instead of instructing counsel, as he had done on 
the previous motion for an injunction, the defendant 
appeu«d in person, but without offering any affidavit 
in answer to the affidavits on which the plaintiff's 
motion was founded. The plaintiff's counsel then 
waiinsd that part of the notice of motion which asked 
for the commitment of the defendant for breach of 
the injunction, and an order was made for the ap- 
pointment of a receiver and manager of the partner- 
ship. The defendant moved by way of appeal to 
discharge that cvder. 

Uoyd and S. Clarke supported the appeal 
motion, and contended that it was contrajj to the 
practice of the Court to gnnt a manager of a pait- 
neivbip business except with a view to winding it up. 

any acquiescence on the part of the pWntjff. She | and as'inoidental to a'dissolution, and that in order 
had no notice of the intended marriage until the 27th to ground an application for a receiver in partnership 
of June, 1819, and it took place on the 7th July j matters there must be an absolute exclusion of the 
afterwords. She obtained, as soon as possible, a. plaintiff from the partnership concern. They read 
commission, and the party was found to be of un- | theaMavits on which the order had been made, and 
•ound mind, and the care of him was taken fivm the ! dted Oliver v. Hamilton, 2 Anstruther, 453 ; Walere 
wife, the natural person to be appointed committee. | v. Tayler, V> Vas. 13 s Harrison v. Armitage, 4 
The onlji reason tiiat can be assigned for that a, that | Mad. 143 ; Goodman v. Whitcomb, 1 Jac. & Walk. 

the marriage waa not considered valid. It fhithBr 
appeals that the pkintiff was in poor circumstances, 
and unable to prosecute a suit (o set th^jnairiage 
auda.. She applied to the Court, asking that the ex- 
penses of a suit for that purpose should be smpitlied 
out of Bailey Bird's estate ; but the MastM' to whom 
that matter was referred reported that it waa 
Us opinion that it was not expedient to charge such 
expenses on the lunatic's estate. Tb4t npoM of the 
Master is not inconsistent with an opinMM <m hi* 
part that the marriage was invsiild. The plaintiff 
hfd no funds and was not then able to question the 
validity of the marriage. She epald not do raon 
than sae did at the time; and certainly there is no 
gjood ground to iniier her acquiescence in th* mu- 
riage; after the general finding of tmsothidness tfaa 
onus of proving a lucid interval at the time of the 
marriage Ilea on the party who now asserted such 
ladd interval Another inference of aeqaieeoence 
was that the plaintiff had written a letter to the son 
of Bailey Bird fBauldry's testator), cidKng him her 
" Dear Cousin, and asking him for peconiaiT asstet- 
ance. That was very natural. There is no Mason 
at aO, nor w:as there ever any reason, ts doubt that 
he was the offspring of Baiky Bird by the alleged 
mstriagc. There u no imputation of any impro- 
priety on the mother, and no doubt this person was 
their diild. There is no act of acquiescence on tue 
part of the plaintiff to preclude her now from ques- 
tioning the legitimacv of this person, by- whose will 
tlie property to which she is entitled, if he was ille- 
^timate, is given away from her. Shfe' has still a 
light to question the sanity of tb* father, and tlie 
vaUcBty of his marriage. After some observations 
in refersnce .to arguments urged on him by 
Bauldry's counsel to the effect that even if the mar- 
riage waa not vaKd, still he ought to constma the will 
of Bailey Bird the elder so as to give e6fect to bis 
intention therein expressed in favour of the issue of 
his ion whether legitimate or not, ssid that the law 
was opposed to such a construction, and would not 
give the property to illegitimate o&pring unless dis- 
tinctly designated. ___ 

J9fe. 7m<i9.18SO. 
Hall t). Hall. 
PartMrtk^ — Continuiug trade— Reeeiter an 

ne Court w^lt not, by the appoinlment i)f a re- 
eeiter or a receiver and manager, take the con- 
duet of a eonlintiing partnerihip trade into itt 
tm Mamdt for the ptirpoie qf being carried on. 
^ partfi teho lo eondneti hit tppoittion to a mo- 
/wvjfer a rteefver {eondtutbtg it in ptrton) that 
|l« fiutiuu, involved in the appKealion, and the 
aniiiifttiei upon it have not ieim argued, through 
meh partial iugltet, to takt the ordinarp 

589: MtrthttUr. Colman, 2 Jac. & Walk. 266; 
Smith y. Jamet, 4 Beav. 583; Sichardi r. Daviei, 
2 Boss. & Myl. 347. 

JBoea* and Welford, supported the order, and 
cited and referred to Coiut v. Harrie, Turner & 
Boss. 496; Goodman v. Whitcomb, supra; Walt- 
warih V. Holt, 4 Myl. & Cr. G.15; Wilsony. Green- 
wood, 1 Swans. 471; Richardson v. Hastings, 2 
Baa. 323; Fairihome v. Western, 4 Hare, 329; 
England ». Cnrlinq, 8 Beav. 129; Malcolm v. 
Mmtgomary. 2 Molioy, 531 ; Bowman v. Bell, 14 
Sias. 392; Thomas v. Daties, 11 Bea. 29; Danl. 
Chan. Prac.I6I2,n., 



The Lord Chanckllob. — Upon the best con- 
nderation I can give this case, I think the order that 
has been made cannot be supported. It does not 
appear to me to be consistent with the course of 
autiiority that has prevailed in the Courts, and 1 am 
not anrpnsed at that when my attention is directed to 
the extreme difficulty which must result from the 

firoaecntion of such an order under circumstances 
ike tha present. It is extremely unfortunate for the 
Conta where applications are made which depend 
npoo oartain principles of law upon which the juris- 
diction of the Court is found, that persons who are 
totally inoonpetent of bringing before the Court 
what has bean the state of the authorities to shew 
how they apply to the circumstances of the case 
should attempt to conduct their own business, they 
are wholly incapable of doing justice to their own 
case, or of calling the attention of the Court to the 
iiialwiBl circnmstancei. In this case it appears there 
waa a motion made for an injunction and receiver, or 
lather, in the first instance, for an injunction, and 
aftanrards a motion, to commit for a breach of that 
injunction, and for the appointment of a receiver. 
It does not verr distinctly appear as to what passed. 
I think, in reference to the granting of the injunc- 
tion, beyond this, that the allegation on the part of 
the plaintiff was not satisfsctonly answered, on the 
part of the defendant, to the satisfaction of the Master 
of tha Bolls, that the defendant had not observed 
but had violated some of the articles of co-partner- 
ship, and he was enjoined sgainst the continuance of 
that breach of the articles with which he was 
charged, so far as it was suy |K>sed to be made out 
Ab to the propriety of that mjunctioo, neither as to 
drcnmstances onoier wUch it vras granted, nor as 
to its partioular terms, I do not think the Court 
hat at pnaent anything to do. I do not think that 
qoettioD is at all before the Court I will therefore 
aMBma for the purpose of Uie present motion that 
the innmetion was properly granted, and that if it 
was disobeyed there was a known remedy which it 
was open to the parties to obtain agunat the party 

10 disobeying, but that could not give any power 
acC3nling to the practice of the Court, to abandon 
'that remedy, and to substitute another remedy of a 
totally different nature. I therefore cannot conceive 
that u a party is not prepared to ask for a commit* 
ment for a breach of an injunction, he can then adc 
to substitute the appointment of a receiver and ma- 
nager. The rights to those difirent remedies are 
essentiaHy distinct, depeodingnpon totally different 
grounds and circumstances. The motion, I consider, 
vras made before the Master of the Rolls for a 
receiver and manager, and upon that occasion, in all 
probability, the case was opened on the part of the 
daintiC presenting to the mind of the Master of the 
Rolls certain brea«ies of tlie articles of co-partner- 
ship of such a nature as might, ormigiit not furnish 
a ^und for the plaintiff to pray a dissolution. I 
think it is extremely probable (though not likely to 
be so intended) from the result that the Master of 
the Rolls' attention waa directed to those acts of 
alleged misconduct on the part of the defendant, and 
that it was sssumed the plaintiff was seddag for a 
dissolution of the partnership upon tliose grounds, 
and that the distinction between the iqjunction for 
breach of the articles of eopartnerahip, and the ap- 
pointment of a receiver anrt manager, vrith a view to 
dissolution, was not presented to the mind of the 
Master of the Rolls. The defondant was incompe- 
tent to do it, and the plaintiff's object and the object 
of his counsel, was to call the attention of the Master 
of the Rolls to a totally diffiarent view of the case. 
I cannot conceive that if the attention of the Master 
of the Rolls had been called to the state of the record 
and to the application of the general principles which 
had prevailed in the appointment of receivers or 
managers, I cannot but conceive, tlom my knowledge 
of the extreme care and accnraeyof that learned judge, 
that if he had intended to overrule any of the pre- 
vious decisions, he would have stated distinctly hia 
intention so to do, and have stated ample grounds 
to justify the condnsion to which he came; but 
no&iiw appears to have fkllen from him tending to 
shew that his lordship at fiiat time intended or con- 
templated introducing any decision in the sUgbtest 
degree inconristent with what had been the prenons 
course of authority of tin Court It now standa 
that this is a bill, not brought Ibr a dissolution of a 
partnership in iridch the plaintiff complains that the 
articles of the partnership have not been observed, 
he does not make that oomplaint the fbondation of 
hia prayer that he Ynay be relieved ftort the patteer- 
ship, but, on the contrary, ^liis sole otgoct is to 
establish the partnership and to |enforoe ita 
being carried' on according to its terms. It 
is, therefore, not a case vrhich at all falls 
within that class of decisions where it is in the 
election of a party who complains of a breach of the 
artides of the partnership who does elect to mdce 
that complaint the foundation of the prayer for dis- 
solution, and the general principle appears to be re- 
sulting from all the authorities, at ii» as I can col- 
lect, that the breaches of the articles of partnership 
are not necessarily the fbmichtion of a oissolntioB j 
but when those breaohee are of such a nature at to 
shew tiiat a partnership cannot be carried on for the 
benefit of the parties acoordhig to the original in- 
tention as apparent from tiie articles, inasmuch la 
one side has put on end to tiie partnership according 
to the original agreement and articles in that ease^ 
the other party may be relieved firom the partnership, 
although uiere is no express proviaioa toat the part- 
nership should determine upon the breach of either 
of those complaints or of any others. It is, there- 
fore, upon the ground that virtnally the parties have 
determined the partnership, or at least that one hat, 
as iiur as be is concerned, wiAdrawn himself firom 
the partnership aocording to the aitidet, and that 
the other, by reason of such oondaot, oloiiu to be 
relieved or prays a diesolntion, and, thstefoie, in 
every case it must be looked to to tee when com- 
plaints are made of breachea of the artides, with 
what riew the complaint is urged, whether it ia 
urged with a view of making that eomplaint tha 
foundation of ditsofaition, er tlie foundation of a 
decree enfordng or carrying on the partnership ac- 
cording to the original terms, and preventing by 
E roper means those breaehes recurring which 
ave before happened by reaaon of the ooa- 
dnct of one of the parties. Now, in tUi 
case, the party pniys the establishment of 
the partnenhip aceonUng to ita terms, namdy, 
specific performance of tiie artides of agteement. 
Well, in the course of that he findt it neoeasary to 
move for an interim injunctian, and he ahews rea- 
sonable grounds to inilaence the discretion of the 
Master of the Rolls that it ia proper for hit lafaty to 
secure, as &r as can be secured nnder the anthmi^ 
of the Court the partnenhip being oanied on until 
the hearing according to the artides. We ^t aa 
injunction ; by-and-^rek he it dissatisfied with tha 
then state of thing*, notwithstand i ng that iajuBstioB» 
and he then oomet and prays for a raceivar. Now, 
was his suit in tuch a form— had he p wat nt t d hit 
oomplaint in such a manner — at to entitle him to 
ask for that particular raUef? Wese the aeta whieh 

Digitized by V^OOQIC 



[Yd. IT.— Na. 418. 


LORD eHiiN«iiars court. 

LORD owwrnifm^ count. 

b* ku aade t&e fomdilkm of Ua rapBEaflon of 
meh s Mtaa as to ihew that when the Marine euae 
on it would be nafatorr Cor the Conrti to decree a 
apedfic perfiimuBce of the aitielea aocordinc tathe 
vatftt of the biB, which mast be the ftrnnaation of 
thatieiief? Haa be ihewn that the acta that had 
occoncd were of inch a natme ai that, although at 
the time he rnaented his bin. and bamed the prays 
of Us UO, Ins olqect waato eatablidi the paitner- 
ship, yet Uf nmoa of the ooodnct of the defendant 
cmre ^ state of things had altered, the pertDenbip 
no lonfcr could be canied on with reaaonable ad- 
Tantage to him, aoGocdiag to the osiginal tcnn? 
Why, ha might bsra amended his bill, and adapted 
his payer to any state of orcnmstances which would 
iuatify any vamtion he might be advised to aiake; 
but with the prayer standing for a specific perfona- 
anoe, or, in other words, for the estebUshment and 
oontiaoance of tiia partnership, he comes and 
asks fer a lee e i asr and manager to be ap- 
pointed. Now, hanag attended to the Tsrioos 
caaea whidi hawa been dtcd, they appear to ne to 
beaU oneway, down to the Ten last ease that has 
been lafand to, of SmtUJk r. Jama, and I find bat 
one oaae in whidi any etpisssitin is at all etpnTocal, 
aa fir aa I can jadge. I do not mean to say yon 
may not extract a sentence from some of the cases, 
or moie than a santOKC^ whidi, taken apart from the 
context and aanaideNd in the abatraet. and without 
referanoe to the aaUeet natter to which they weae 
iililiassail. it might be pneaJhletofbondadoBbtupon 
it{ ImA '■''■■If tl>* eontezt in all the cases, and 
amtymg, as it is proper it shoald be, what Erik firsm 
the Court, as ccnstraed and as made intriligiMe by 
that context, I do not see that there is any doubt 
mnniag through the esses ; and, without inrestigat- 
ing ^ par^cnlar mentaof Anatrather's Bepoita, yon 
do find theee that laid dawn by the Coart which 
■rems to me to be coaaJatent with all the subsequent 
aitffaority,.and if yon g» throagh thoae osees, theae 
is Botoae,aa it appears to ase^ that at all impngna 
the ganasal doctrine, which I coaoeire to be dear, 
that whaae it ia not the object of the aait to obtain a 
disanlntioa of partnesship, bvt, on the contrary, to 
it, that it ia not acoording to the prarfine 

prerlded. Tbeeaseitsdf wasaueedSvaadertfa- 
otdinary one, the racvrer laeie had a snnple daly 
to perfann, you may eonaidar him merely as miwia- 
tarial; be waa to reoeiTe all that the perseos paid fat 
thdr entrance to the theativ, and to aaply it accord,' 
lag to a eertain apedfic ariangemeat noit the partiea 
had beion dimctBd that he waa to do anta the hear- 
ing of the cause. The oaae appems to me to be 
very distin^uishahle in its drcnmstanosa, and tsUng 
the expnaann which ia here need aa appBedlotfae 
reeeirer, and leoeiTer only, it doea not beeoaie appli- 
cable to this case. I can readilr cone d re a eaae 
where the aiere qneation ia of receipt, 
aa in the ease of Om*l t. BarrU, the sH 
were, that of allowBncea to be l e u e i te d by 
tiea, withoot the interpoaitioa of a rteant that 
wooM not be applied to their proper puipu e es , 
fliat in truth at the hearinrof the eaae mere wo«dd 
be a {•ilnre of justice by the acts which took ^aee 
in the meea time. It seems ta me that tiiat eaae is 
not to be taken as an autimrit^ at all iwonsis t fu t 
witii the genaat course of dedaona that bad before 
prerailed. Then, if I am oonect in tiie ooadnsion 
to which I hate oome, by the rule and piaetioe 
of this Court, a r eedter or manager b only granted 
where it ia auxiliary to tiie olqeet of d l said uli ou. 
1 do not go into soy possBile caaes whidi 

of the Court to grant ia the coarse of that niit the 
appointment af the manacsr and neaixer. Thetwo 

caass thatappaared to base some expRasioaa in them 
which seem to be broarabla to the Plaintiff's riew 
of the turn, wan GsodbMB v. WMtttomi and 
Widrnm y. Crssaawisd I hare reraariLed apoa 
both these, that aith rsspact to the oae, what 
&lk from Lord Eldon in the eariiar eaae, with 
tefeamoe to the sal^ieet aiatter, clearly meant 
that a party might ao miacandnct himaelf by 
eialudiBg hie Mlow partnsr from a proper partirifa 
tiea ia the maoacsment of the boainaaa as might 
funiahagroandfordissolatioai but that is stated in 
the eomrse of oh i s rr a ti ons all directed with lafereace 
to the ytinciple that a raoeivcv and mansgsr was to 
be appoioted in reference to dissolotioa, and than 
hanag the mind directed to the subject of daaaolution. 
AaMiagst the causes of tlie dissolutioa ia the excludon 
by one pertner of the other. Coedaiaar. WkiU- 
eamt, whieh is the lost of the cases, is periectly plain 
aad iatelligiblc. It shews that Lord Eldon bad not 
ak ail altered liis view upon the matter, and had 
ahwtiaiitly removed any doubt or ambiguity as to 
the Bwaning of the ri^nression to be foimd in 
1 Saan'd ii^^J^'t^ 'i-'"' -—^ '^ iVahaortk t. Holt 
aapaaia to be a paeuliar ease ; bnt the pomt that 
tharaaroaa 008 0(8 vary distinGt nature. Thepart- 
naohip there hod oeasad to be carried on ; it waa 
qnila olmoa% &ob the bet that it could not be 
canied em, the eaueani waa iaaolrent; the partiea 
isaea midi»poasd to raise uaj capital, and the pro- 
perty of the portnenhip waa likely to be lest, aa ap- 
pears upon ue peooasdiags between the periodof 
theiBotioaaodthe bearing lost to all parties^ unless 
thaCooKhadinterfaredtoBiusartsit; and although 
Oe biU had not the word '^djasolntion" in it, yet it 
waa plain that it waa the sbjaet and necesaair effect 
of tMtbilltopat anendtotheooncami and then- 
feve it stood apoa praeisely the same bans ss if the 
biH had been filed exdusirdy for the purpose 
of dtssolutioa, and tho winding up of the con 
oasa. In the caaa of Cooef t. Jtarrit, which is the 
only case that introdaeaa any Bmbigiiity, there is 
carteialy an aapeassion, in page 525 of the report, 
that would saeaa foaourabla to the plaintiff: it says, 
" Iha sseet proariasnt {Mint on whieh the Court 
aota ia appointing a seetiver of a partnership con- 
cam ia the dmmetance af one partner baring taken 
opon himaelf the power to exslude another partner 
fiwm Ua full share of the maoKement of the part- 
aarship, as he who assiuacs that power himself en- 
joys." Now, the reodvar that was asked for in that 
aaae was a reodrcr who, it is to be justly observed, 
was whdly naeonnected with tin maoegement : he 
was to recdve, either the rent under a lease if the 
pasties thought fit to adopt that lease, or the admis- 
sisn aaouey taken at the entrance of the theatre, 
sappeaog theleesewas repudiated or not acted upon, 
aad he waa to apply it according to certain tarms 
irhich the parties t 

and prorisiona wh 

parties themselves bad 

ariaak but act acoonfing to the doctrine whieh haa 
been laid down— a doctrine, I appieheud , that ha- 
limgs to all Courts, namely, ttat yon aAera to ptia- 
dide, and apply that prindple to new caaea, so aa to 
give effect to it in the beat poasible way. Itiapoa- 
aible that theae might be s eaae arise where a party 
waasaooodoctingbinsdf aatha^ nnlesa a aaaaffsr 
waa appointed in the meantime, the coBcarami^ 
be deatroyed. Well, the Court woaU no doubt ap- 
ply the prindple that had before properly prevailed 
ta audi a eaae, bnt in die preaent eaae it sppeai s tiiat 
there ia a partner apinat whom iuaut tea ty ia not 
duBged, who haa orou^ in the whole of Ote 
capital, who. it is soggestad, is not peifeetly ooos- 
petent to anawer for any money that may coan to 
hia hands, aappoaing he is in &e habit of receiving 
money, asuipears tobe thecase. It ia said that ha 
has applied a part to hia own purposes. Well, 
how fiiir had he a right so to do, whetiicr he had ad- 
vanced any sum of money on sooount of tfia partner- 
ship, and that he rcimbnrsed himaelf out of thoee 
moneys does not appear. There may be a variety of 
dnmnstancea that may aeooont for that; but in the 
sheenee of all explanation, I simply have this eaae 
before me here of a person who is under the parfl of 
so injunction aninst the misapplieation of the (inids, 
againat whom thsi'e ia no motion to eommit fer a 
breach of that iqjnnctioa, who is not shewn to be so 
dnmmitanced as to make any such ui tt ifcii im e 
essentiid ta the security of the perties pendmg the 
heariag af Uie cause until its bearing. It seems to 
me, therefore, that no dmirastsace in this eaae 
warrants a departure from what I conceive to be the 
aatabliahed prindple of the Court now, that the 
geacral jurisdiction is auxiliary in graating a reasivar 
and """'B" to a dissolution, I concave to be dear. 
In the present case it appears to ma that what is 
; said is oonect, that by grntin^ a m o n agei in tn^ 
instead of doiqg that whidt is die only object af 
granting a receiver or ma n a ger, it is duati active of 
It. It seems to me perfectly impoesible that this 
eonoem could be carried on with that advantage 
wbidi both parties have a ri^t to expect ; it ahoiai 
be carried on until tiia hearing, when it is expected 
tiiot tlie parlnerahip should continue. It seeme to 
me impossible that the appointment of a reoaifar 
ooald be made witt any substantial benefit. I esr- 
tainly cannot adopt the view whicb one of the teareed 
connad has preaented to me of that qualified sort of 
management wUdi is to leave the parties m troth to 
manage for themselvea under the snpervisiaB of a 
manager, I do not understand 13»t. It appean to 
me tlut interference with the manager in any sub- 
stantial decree would be a contempt of the Court, 
pimiahable jnst as modi as a breach of the injuue- 
tion. Now there ore articles necessary to be pnr- 
diaaed, and there is a trade to be carried on wnich 
requires skill. This gentleman, the manager — the 
conductor of the concern, it seems to me, cannot by 
possibility conduct it in such a manner as to preaerve 
it entire and substantial for the benefit of the pert- 
ners, after the hearing of the cause, supposing a de- 
cree shall be made to carry it on. It is that kind of 
business that I think cannot be so carried on, sod it 
does not appear to me that anything has been done 
whieh will necessarily prevent the partnership being 
carried on if a decree be made fin- that purpose as 
prayed by the plaintiff at the hearing. I think, 
therefore, from the drcrfhistanoe that the attention 
of the Matter of the Rolls was not called to the state 
of the record, and to the prayer of the Bill beiag 
exdusiTely, or for the main part, directed to the 
establishment of the partnership, and to the carry- 
ing it on ; and that the act impatol to the defendant 
is by no means destrnctive of the partnership ia 
the sense that a decree would be svuilable for 
carrying it on by reason of his intermediate 
arts, it does not appear to me there wen any snfi 

cieat pouds kid beftta tiie Haater oftihe Bd^ 
hia aUeutma had Doaa l a l lpd to th em, to wsnsaft 
the order that is now complained of. Itfaink,thase. 
fore, that the sy pe al mu st h e alloiied, aadtt>oid» 
of tiie Coort balow must be dw hsi g e d , 

£W.— Yoor lordsUp wfll make tha ordar Ait 
should have been aaide in tiie court biiua iifaaj 
the motion with ceata. 
JtsesB.— No ; his haittip haa not said ikoL 
The Loan Chakcelua. — I have iiiiMJilawd tM 
point; and I do not think the defendaat shoald haie 
anyooatk There is bat one ground fi» it. Idoaot 
thfaikihe perties hare a right, at the peril of their 
o p pone n ts, to oone into ooort totally iiinsipsnil Is 
oceaaion expense for wast of the Comt beinp nS ia 
p oas» . m km of &e proper materials. I Omk mch 
partiea must oooe at thdr periL There sre sda- 
qnata meana for their protection ; andif theyduoas 
to rely upon tiieir own efbrts. be it so : tfaeCemteS 
aid them to the ntasoat of ita po<rer, bat that, Kks 
another specaktianB, ia not to be saade atothv 
peopte's expense. I there ia ie think, if a psrty pM 
his op p onent to expense far want of the Ciait 
having before it Oat assistaooe withoat wUehjaMics 
cannot be safely aduil iii s t ri i Ml , he should do tkrtst 
the peril of oosts, and dieief ore &e oiipmi mstiaa 
shoald hsm been nfnsed without costs. 


Bepostsdhr'. lUoisuT, Bn. oTtha faaseta^kk 

Bsiiittsi at Tar. 

TVesday, /aa. 14. 
Wiuju s. Cbildb. 

Om ii t Ut m o vl tfmtuttr—Estnitt vfSKMSm 
♦y frsis f iai i/ aii sdi ff iea fi i>a at r li m 

^ diorfcr «^ (to 9SM (if .darif, n> lAr iMI year 
^ the nffn </ JOng Siwari VI. etHtmlmii 
wen grwKtid to lafpart m gr ama ^'' ' 

iMikm. ta ie kept h ear mmttr t 
fit 1838 a sdleaM wmiHUtdJar ttt ■ 
Iff ilk* tnut. mtd asMi trmHtm wtntf^iKkit 
ant UwmtproMed "tkat tlUlrmlmikmU 
Hare mUkaritt from timt ia Umt, ^no- sost 
freuMfe OS tier t lm iU, m tA tii dii i i il iia , aitl 
Me eartreise aad tatettiam ^ ikt fmmt md 
irmti* rtpotd as Ukam, detmjmt it mmtOt 
matter, S(e.fram <0le«." Tin i 

^briimi the matttr (appotnUiia jmrmamj/ 
Me preatiiaas Jar that jmrjMiai) m tppsrhr^ 
ta iff wad Mmitlf or txpian km saoAid, 

p reati i aas ftr tikat pmrpom) m »pp«i '■*» 

ieftad kiwut^ or explai* Ha ssod ad.^ 

wftkimt i as Wali a f aa taf ir y ia Mi *'".'■'* 

reaannf ik'm if a tauhtUoa <a» jmaidia ft« 
cserease, as thi$ itaiai, t^iktirmao^)^''' 
that rmokdiam was Mf ttw fomii 
HtU, thai ttrjrrsaifiea m iko ae/kMi 
iSd no( os<«r en Mr Iraateeaaa orWnry jMNT 

to diamim, Jrte from the (oadrW q^Ms Cba< 

wkic*kaditiikSt»eeeAema: awfMa<MriNS> 

tort were aa( Me enfy omT atooioto fodfas* Mr 

sa^icnacy oftAe jr san d i V'raameai. 

Beid, alio, that ike ward " irwde," Uaf «vr- 

aided to ike word " power*," wmaHmmiemm 

(M*d for mme pmrpate, aad tkat weeM <■' 

parfoee ofkeepiaf ta oiew that it waaa tnatfir 


aad that it had the iffttt <if reetrittimt <** i^T 

■ se en ray whiek might etkerwiee ia fiae» ItUr 

word"dieeretioa,'^ 2V /nij«e«e ■«• i ■* "a" 

from eVhrttny M« rasaMioa^r Me rssMssf V 

tke matter. . _^ 

This waa a motion made on behalf of the piaiBm 

that the defendants nagfat be restiai na d from tskkg 

any proceedingi for the purpose of enfcrcing a nv> 

Intion by tha traatees of the gnmmar-sdwol of UiC 

Edward VI. in the boroagfa of Ludlow, aade aaW 

16th January, 1850, wheeby it waa raaolvad IM 
the plaintiff shoald be removed from the oCsaef die 
said master. The bill prayed for a dedeiatianttit 
the reaolution was inmlid, and that the phsrf" 
might be quieted ia his possession of the eC esd 
master, to which Im waa appointed ia the y<v 

The school, which was originally folded laa 
endowed by King Edward VI. and the maaaguM^ 
of it. and of die property held in ttnat for it, w, 
before the year 1848, become the snbiect of«- 
ferences of opinion and litiaation ; bnt by aa oros 
dated the 2nd of August, 1848, and made by the 
Lord Chancdior, on an information filed by the 
Attomey-Genend against the corporation of Ladlo* 
and others, a scheme for the regulation of the 
grammar-school in question, and certain otharchan- 
ties, was settled; and by the 14th regulation of thit 
scheme, it was provided as follows: — "Hiat ma 
trustees shall have authority from tisae to tine, 
upon such grounds as they shall, at their 
discretion, ia the due exerdse of the peosrs 
and trusts reposed in them, deem jaat, f"*^ 
time to time to remove the master, ush«, <^ 
sny sdditional master or masters, or either ef tkaa^ 
fh>m tiieir or his offloes or office in manner ^^ar- 
mentioned, that is to say, tb^ on the i ' 

Digitized by 


Annu 6, 13&1.] 



nous CMNtr. 


mtitiag, ngnedby threeofi]M«niittM«tlaMt, te 
secntaiy of the tnuteea ifaaU aU • meetiBg of the 
tniatees j a notice ia imtinf to be gnr«i w «aot to 
«aoh of the tnutees siz dwi bdbn the holdsig of 
tatii meeting; and ia nicb notice shall be stided, 
that at the said meeting it is intended to propose 
the lemoval from the office of master, usher, or ad- 
ditional master or masters, persons whose names 
■hall be in the said notice ; and that at the same 
Baeeting there shall be preiMnit not less tiian two- 
IliiTda of (he tnutees for the time being j and tiiat 
•t the said meeting a resolntiaD shall be proposed 
by one and seconded by another of the tnutees, for 
4£e remoTal of sodi master, nsher, or additional 
maater or masters; and that if the same be eairisd 
hy at least two-thirds of tiie tnistees so present &e 
tame shall be entered npon the minntes of the tras- 
teea and Bigned br saoh of them as vote for theaaid 
xesolotion ; and ihati the resololion sh^ at a sab- 
sequent meeting oft h (croatees odled by sockaotioe 
aa last befoie-mentiai .c,aad which notiae sat forth 
the former resolution, sod with aa intnral of one 
cal wndar month at least, whereat the same propor- 
tioa of tnutees at least shall be piessnt as is reqtmed 
to be present at the first meeting, be confirmed by 
two-thirds of the tnistees then present, the said 
master, nsher, or additional master or maaters, shall 
be considered as if removed, as on the day of the 
second meeting; and his office slall be ncaot on 
and from that day, provided that such resolution sod 
oeBflrmation thereof, as aforesaid, together with the 
groonda of such removal, shaH be enterad and 
preaerved npon the ""'""trt and nraceedinn of the 
said tnistees." 

On tiie 8th of Jannaiy, 1850, three of the tnistees 
rigaed a requisition addressed to the secretin of the 
trustees, rmuiring him to call a meeting for Wednes- 
day, the 16di day of January then next, at which 
meeting it was intended to propose the lemoival of 
the Ker. Arthur Willis, the pUntiff in the ensa, 
from his offioe of master of the school. Onthessme 
day the seeretsry gave notiee ot the intended awet- 
iag. Aooordingly the meeting was hdd on the 16di 
day of Janxiary; fifteen troslees wen pcesant; sad 
after reading tiie reqaisition and notice, rsadiag sn 
oderof tfae Gth of Angnst^ 1849, and tiie repast of 
the grammar-schaal oommittse, • lesoiatis* tot the 
lemoTal of Ur. Willis ma aiorad by oae trsstae, 
and aeconded by anofher, and then esrtsin tnutees, 
— fonrteen in number,— acting, as ther a^f, in their 
diserglion, sad in the dne ezmse and eaeention of 
the i^owers and trusts reposed in tliem, reaotred tiiat 
lb. WilUs be removed from bis office ; sad they did 
xemove him, and signed their naaieto snoh resoln- 
tipn J and thejr subjoined a statement «f the greoBCb 
orisnoh removal, whidi watesix in nassbsr j and it 
was ordered that a spedal meeliag of trustees should 
he oOBveaed for Weduesday, the SOth of Febraary 
ttaa not, at eleven o'elodcio the faienoon, for the 
pvpose of submitting the fioregoing nsotaiioo for 
•onfirmation. A meeting was aeosrdingly held on 
tiiatday. Itwssstated&attheBsv.ArtimrAiraiis, 
^master of the gramaiar-achool, and Mr. John 
wiUIanu, -die odier of the giamssar-sehocd, seveislly 
Sfltended and were hand,— that the resohtfioo of the 
Ifith ef Jssinary was read, and then that, npon the 
notion of one trustee, seconded by enethar, the 
landerrigned trustees, being not less than two4hirds 
of the trustees present at the meeting, and sUsging 
that they had beard the Ber. Arthur Willto an the 
■iMed^ and had duly coasideied the premises, 
did in their diseretion and in tiie eacereise and «x- 
eentioB of the powers snd trusts leposed in then, 
deeaait just to adopt tkt rasokrtion, and they ao- 
mrdlnglj resolved that aeMa(rfntion be coafirmed. 
The plaintiff feeling himself aggrievad by tiiese pro- 
oeedbigs on the part of the trustees, filed his MU to 
lesbain them, and thereby alleged that some of tlu 
trustees were holders of removeeble Isases, and 
Jthers were members of the oorpontion, and that 
tae oompromise which had been entered into (after 
sn faiformation had been filed respecting the charity 
uods which bad become intemnaed witii those of 
me corporation), and wWdi had been carried oat by 
W« 9 & 10 Vict, c 18, and the scheme subsequently 
"tt^ Vy the Court was lees lavonraUe to them and 
to the corporation than the terms Oiiginally pro- 
posed, and that the plaintiff having cxnted himself 
m ftvonr of tfae charity, had incnired the dispfeasnre 
OTtite trustees, because the income of the property 
(V the corporation had becomeezhaasted ia mdemai- 
Mng the charity, and the expenses of the corpora- 
tton bad to be met by a borood>-nte. The biU also 
steted that the trustees were further annoyed by tlie 
plaintiff's interfering to prevent the sale of a psirt of 
u^ charity property called Ashford estate the pbon- 
tiff conceiving that it was about to be add at an 
^dervalne, and having written to the Bishop of 
Hereford to withhold his consent sad allow the 
plaintiff, OS an ol^ect of the charibr, to be heard 
s^inst the sale. The bill tiien aU^ that the 
vnstees had concocted a plan to remove the plaintiff 
from his offioe. The bill than ststed certain rssoln- 
tions of the tnistees psssed on the 6th of Aiwwt, 
i84% whereby it was resolved that every oom^sint 

Aa disoiplfai*, cader, ar aoaduot ef the 
school Com the master or asher to mek o&m should 
in BO case be made in the presenee or bearing of aay 
soholsr; and that the play-ground attaehed tothe 
school-room should be thrown open to all the boys 
faalf-as-haor before the school eommenoed in the 
mOTning and kept open till the saho<d dosed in Hat 
eveoiDg. A oopy at tkese tesolutiaos was smt to 
the plaBtiff, who lepUad that Huf iatohtA aiaMeis 
of discipline net within the scope of the nles 
sod orders contemplated by tbs scheme, and 
preferred a complaint against tiie usher for in- 
competency and neglect of doty in absenting him- 
self from the sdiool. The bill then set out 
various matters uid resolutions of the trustees, 
sod partionlarly a reference by them to the ptm- 
mar sohod. ooaimittae, of the whole question of 
tl»adiool, witii instmotions to report tliereon, and 
the subsequent meetings and resolutions to remove 
the phdntfff, on the (pounds, as eirtered on the 
minutes, of his exdndmg the town boys from &e 
school-room and play-giound, his bossders having 
access thoeto ; seeondiv, oompelliag the town boys 
to remain in the street, oy reason of the sdwol doers 
not being open at a proper time before saimol faoms, 
thereby exposing tinm to the weather; thirdfy, 
ponisbing nevarudess Ae town boys if not in school 
at the proper time; fourthly, blaming the ndier be- 
fore the boys; fifthly, the oontinnaBee in offieeof 
the plaintiff would destroy tiie school ; and, nxthly, 
because the refusal to comjdy vdtii the rule and 
order was aa infringement thereof and of the 
sdieme; and as he had endeavoared to iatimidsite 
thetrastaes by a threat, they had no hope that the 
rules for tfae management of tiie school would be 
brought into operation under his masteiriiip, if per- 
son^ distartefhl to himself or incsnsistent with 
his intensts. The bill denied the facts stated in the 
gnrands to be true, and t h aiK s d that eertun of the 
trustees had said it was naoessary io pit rid of Urn, 
and that they had endaavonsed to get up efaawes 
sgaiast him, and that sosae of fliem admitted that 
tiiey were ignorant of tin diargss p i ef e ii e d against 
him, bat had come to the meeting witii a detarmiBa- 
tion long previouriy fmrmed to remove him ; and it 
pr^ed an iqioBCtion to restrain the trusteesCrom 
enfondng the resolution as to removal, and from 
taking any frntfaer steps in the aotion of ajeetment 
whidi they had brought to ohtslii poss essi on of the 
sdmol-howw md -premises. The plsiBtiff moved for 
an injonctianaoeoRlingiy, udddi bow eame on tobe 

jymtr and KessA«e, fnr tiie molion, rated 
Aminter r. The Oarporaiian af CMfptHkam, 14 
Yes. 245 ; Be PhUUmf$ Ckmrity, 9 Jur. 969; Jis 
Remington Behoai, 10 Jur. 5U. 

LlovdaaA Lawht, cantrip dted OUMewv. J^Xi**, 
2 T. ft C. C. C. M2 ; GUaeatty. tana, S Ph. 810 ; 
Perrtiey r. Hobion, 2 Fh. 265; Tile Atioram- 
Getterof v. The CorponctUm ofLiMaw, 2 Ph.OM; 
The AUomey- General v. MUUUetm, 2 Ves. sen. 
328; JZdsn t. Fimttr, 2 P. W. 325 ; J>MHto* v. 
Bwnl, 1 Ld. Baym. 5; lUa.t. The CorpartMim rf 
Imwich, 2 lid. Baym. 1S2 ; 8t. Jokifa CMem T. 
ttddinoton, 1 Burr. 158, 199; Jlsr T. 3%« JBM» 
(^BlV, 2 T. R. 290 ; Beg-r. The AarUaj^fon Beheol 
6 Q. B. Rep. 682; fTJWstoa v. The Dum and 
Chapter qf BodkeaUr, 7 Burr. 5S2; Jie Brixton 
School, II Jur. tei ; Bag ft case, 11 ftep. 986, 986 ; 
B» Tht Ludlow CharitUe, 2 Myl. <c Or. 316 ; Re 
PkillMi Charity, 9 Jar. 959; AaarT. OcsMa, 8 
T. R. 209; Doe dim. Barl tf Tlumtt T. OaHham, 
I'Biag. 357. 

Turner, in reply, cited ArehMd v. T%» Com- 
misHonere qf Charitatle Beg*ettt for IreUmd, 2 
H. L. Cas. 460. 

He Mastkb of tiie Rolls. — The plaintiff in this 
case compisins of his removal from the office of 
schoolmaster ; he admits that the trustees of the 
charity, if they act in the due exeralse and discretion 
of ths powers and trusts reposed in them, mid in the 
manner mthoiised by the regulstion, have a right to 
lemove the schoolmaster, and that they have even a 
discretionary ]>ower, when it is exercised, after doe 
oonsideratian, and itfter making themselves duly ac- 
quainted with tiie facts npon whidi they act But 
he denies that they have any right to removeflie 
master arUtrarily and capneionaly ; and he insists 
that in this case they have acted inegnlarly, wittout 
proper inquiry, ana unjnstiy, and^ that they have 
done him an injury, for which he is entitied to re- 
dress in this Court. The tmstees, on tfae other 
hand, insist, that they have a right to remove the 
master for any reasons whatever which'seem good to 
thonselvas; that they are not answerable to this 
Conrt for tin mode in which they have thought fit to 
eiereiae their discretion ; and they further contend, 
tiiat if they are bound to answer, or are in any way 
accountable for the exercise of tiieir diseretion, they 
are ready to shew they have proceeded regularly and 
jmtly, and Iiave removed the master for good and 
soffident reasons. The first, and perhaps tiie only 
question material to be considered at tnis time is, 
whetiier under the scheme established in this case, 
the trastees have an arbitrary and nncontroilsfale 

aothortty to dismiss the master for any caaae itiMk 
they may tiiink fit to assign. It is contended on 
their bdialf, that the decision is final and subject to 
no appeal. As an autiiority for this the Darunfftom 
Behiol esse, in the Court of Q. B. is relied upon. 
In that case there was power for tfae govemon to 
remove the master, uid appoint another accordinr 
to their sound discreticm, and upon those words ft 
was held tiut the tmstees mi^t remove tiie master 
as tiwy pleased, and that their discretion was not to 
be restricted by any opinion which tiie Court might 
form of the reasons on which they mi^t have been 
induced to exert it. When the Darlmgion School 
ease waa brought under the notice of his Honour 
Tioe-Chanedlor Knight Bruce, [in the Fremingto» 
School case, he did not think that it applied. 
In that Fitmmgion School case, by the will of the 
founder, the trustees were empowered to displace the 
master upon any neglect or misbehavloiir of the 
master, or other just cause of which they, or the 
greater number of them, should agree upon and 
think fit to iSs]dace such master and place another 
there. His Hooeur did not think the principles on 
whidi the Dtrtingion School case was dedded were 
appficable to such a case as that, but held that the 
Ooort was to consider whether there was neglect 
misbehsvionr, or other just cause. It was not 
enough for tlwm to say that there was some cause 
or some reason which tiiey might agree upon, and 
thiidc fit to displace the Master. In the esse now 
mider coBsideration the power of the tmstees is not, 
as in tte Dariimgton School case, " to remove ac^ 
cording to their sound discretion ; " or, as in the 
Premmgton case, "for such just cause as they might 
agree upon and think fit to displace him," but tiie 
power has reference to "such grounds as they shall, 
IB their discretion in the due exercise and execution 
of the powers and trusts reposed in them, deem 
just" If tiie grounds ware to be "such as they, in 
their diseretion, should deem just," irithont more. 
or if they were merely to exercise the power, it 
might be difflenit to distinguish this froig tfae 2tor- 
M^foM School ease; but neie, that which is to be 
done ta to be in tiie execution, not merdy of tiie 
powers, but of tfae powers and trusts reposed in 
them. The powers waicfa are given in such a case 
aa this, like all powns to be exerdsed for the beoeiit 
of ethers, or for purposes which ate more or less 
public, mnstin one sense be deemed to be held in 
trast. There are, indeed, very many powers in that 
sense held to be trusts whidi cannot be enforced or 
eontroBed in tids Conrt; but here is a power defined 
by this Court itself for the purpose of carrying into 
execution a charitable trust ; and it must, I think, 
be considered that tiie word "trasts" was added to 
the'werd"povrer" for some purpose; thatis,forthe 
patpoee of keeping in view tiiat it was a trust, for 
the execution of whidi the Court was providinjr; 
and the employment of the word "trusts, espedaUy 
when ooBsioered with reference to the direction of 
the les ei i ed statement of the grounds of removd 
appears to me to have the aCfect of restricting the 
laige meaning which might otherwise be given to 
the word "msention" eontained in the oidering 
part of the clause. Considaring that the tmstees 
sre not the only and Miscdute judges of flie soffi" 
ciency of the grounds of removal upon which they have 
acted, and that they sie subject to tfae jurisdiction 
and control of tfais Court, witfa execution of tiia 
trusts reposed in them, it becomes necessary to in- 
quire into tfae manner in which they have acted in 
the present esse. "Hie plaintiff alleges that the 
power of tiie trustees has oeen corraptiy exercised, 
or at least that there has been an undue exerdae <d 
tfae discretion which they had. A great many affi- 
davits have been filed; they contain much Incbnais- 
tent evidence, and it seems to me, that some, at 
least, of the trastees manifested an euer desire to 
find occasion to remove tiie plaintiff. It, upon a foir 
invMtigation of the focts, and after lust means of 
explanation and defonce had been afibfded, it had 
appeared that the employment of tiie plaintiff had 
become prejudiqal to the school, tfae tmstees would 
have been fully justified in removing him. On tiie 
merits, however, I find it very difficalt to form a 
conclusive opinion of the tmth or fslsehood of 
many of tfae allet^ons whicfa are stated. But, after 
reading the affidavits, I observe that some differenced 
having arisen between the master and the nsher, 
the tnistees not tronbling themselves to promote 
any means of conciliation or atljustment, seem to 
have been disposed to impute the principal foult to 
the plaintiff; and, instead of institating an inqufry 
in his presence, which might have afforded him the 
means of explanation and defence, they, without his 
knowledge, commenced proceedings against him by 
refenring tiie matter to the school committee to 
consider the case. The school committee proceeded 
to investigate the case in his absence and without his 
knowledge, and reported against him. The report 
was not communicated to him, but the trustees met,' 
as they say, considered the report, and in his ab- 
sence, ana without hearing him, they confirmed the 
report, and resolved to remove him; and stated the 
grounds and reasons for suCh his removaL The 

Digitized by V^OOQIC 



[VoL 17.-^Ko. 418. 


V. e. Kmetrr bruct* court. 


tmatees hanng thus committed themaeWee vithont 
hearing the ptrtf affected by their resolution ; haT- 
ing thus condemned the plaintiS' unheard — ordered 
another meetjor to be summoned for Wednesday, 
the 20th day of February then next, «t elereo o'clock 
in the fbrenoon, for the purpose of submitting the 
foregoing resolutions for confirmation. The trustees 
did not even then think it necessary to communicate 
the proceedings to the plaintiGT, but the plaintiff 
haTing by some means, not, I think, explained, 
Iwoome acouainted vrith tbo proceedings on the 
"SBtk of February, two days before the appointed 
meetiog for the 20th, trrote to the trustees a 
letter, which ought, I think, to have induced them 
to pause, and to consider whether they were proceed- 
ing with due caution and justly, "the only effect 
which it seems to hare bod upon them was to induce 
them at twelve o'clock on the day of the meeting to 
inform him that they had received his letter, and 
were ready to hear what he had to say on the 
subject of it. He did accordingly attend, and said 
what he could or thought of under such dreum- 
stanoes; and, after so hearing him, asking him, I 
think, whether he had anything further to say, and 
receiving an answer (which might well be) that he 
had not, — under those circumstances, and without 
any other hearing or inquiry in his presence, they 
oonfirmed the former resolotion to remove bim, and 
this confirmation was signed by the same fourteen 
trustees who had signed the resolution of January, 
and so previously committed themselves to the con. 
chisions and to the reasons. Care was taken to 
obterve the mere forms reouired by the I4th regula- 
tion about that. I own inat it appears to me per- 
fectly dear that Mr. Willis hod no proper opportu- 
nity afforded him of defending himself— no sufficient 
means of explanation — no means of proving his 
defence if he bad any. The evidence which is Mfore 
me does not enable me to determine whether Mr. 
Willis had • good defence or not ; and it is a most 
serious misfortune to the wel&re of this school that 
a matter of such importance should remain in sus- 
pense. I think, upon their own shewing, the trus- 
tees hare taken upon themselves to remove Mr. 
Willis without giving him a proper hearing, and the 
&cts which are disposed in the affidavits, though 
not such as to enable me to come to a saHsfactory 
conclusion, are, at least, such as to make it not im- 
probable that Mr. Willis may be able to shew that 
be ought not to have been removed. Therefore I 
am of opinion that the injunction must be granted to 
lestiain the defendants from enforcing the resolution 
of the 16th of January, confirmed on the 20th of 
Febmary. I wish only to add that I do not mean to 
aay anything that can really determine the right or 
propriety of conduct between these parties ; and 
although I tlunk they are not entitled to proceed 
upon the footing of this resnlution, I do not mean to 
insinuate in any way that tbey are not entitled to 
have a proper investigation into these or any other 
/ grounds of removal, and proceed in a just manner 
^ upon them. 


' Xsported by Qio. 8. Ai.unm, Baq. of tin Middle Temple, 


iTareh 24 oiui 29. 
Sx parte Robinsok, re Tub Rotal Bank op 


Joimt-Stoek Otrnpamet Winding-up Aett — 


A. B. IMe director ef a banking company, took 

twenty ekaret a* a qualifieationfor hit office, and 
ttgnea the deed in rtipect of them: he ifter- 
loardi, in purtuance of a reaolution by the di- 

rector; tigned a letter agreeing to take IWtharet 

more, and he gave a promittory note for 1,0001. 

in retpect ttfthete tharet, payable within fow 

yean. T7te IQO thareneere not allotted, norteai 

the deed executed by A. B. in retpect qf them. 

Sntriet vert made in A. B.'t account in the bank 
•iooktqfthe dhidendt, tee. on account of thete 

100 tharet, but the promittory note when due u>at 

not ditchargtd by A. 3. : 
.Jleld, thai A. B, wot a contributory for 120 


This was a motion on behalf of Mr. AnOiony 
'George Robinson, that the decision of Master 
Richards, dated the 25th of February hut, whereby 
-ihe name of the said A. G. Robinson was retained 
on the list of coutribntories of the above-named 
eompany for 120sharea, as executorof Joseph Phdps 
Robinson, deceased, might be reversed, or varied, 
and that the name of the said A. G. Robinson might 
be ofdered to stand on the said list as such executor 
•■ iforesud for twenty share* only. Mr. J. P. 
Bolnnaon, who was a director of the company, took 
twanty ihioes as a qualification for the oflice, and in 
nipact of these ahara paid the deposit and signed 
the deed of settlement. At a meeting of the bank, 
bald on the 7ib of Angnst, 1840, the question having 
bMB dtaeoMed wheUinr the bwk was vfoa a luffi- 

dently bioad basii to carry on the extensiTe business 
which ought reasonably to be expected in the course 
of a few years, the directors agreed among them- 
selves to fulfil their original promise at the formation 
of &e bank, by rendoing themselves responsible, 
to take eitho: by themselves or through their friends 
a number of shares within a certain period. It vraa 
then agreed, for the security of the bank, that a 
letter to tiie following effect be taken from such di- 
rectors as agreed to take this responsibility, and the 
following gentlemen signed tlie letter to the amount 
against such name : — 

" To the Directors of the Royal Bank of Australia. 
" Royal Bank of Australia, 

" liondon, 7th August, 1840, 
" 2, Moorgate-street 

"Gentlemen, — ^In reference to the five hundred 
shares in the Royal Bank of Australia, which I aipeed 
to take, in ojider to extend and secure the basis on 
which the establishment shall be placed, I hereby 
bind myself, at such time or times within four yean 
from the date of the deed of settlement as shall be 
convenienttome, to pay the deposits and calls on the 
said shares, with interest thereon, at 5 per cent, from 
the time appointed A>rthe payment of nie same, until 
such calls and deposits shall oe paid by me. 

" I am. Gentlemen, your most ohdt. servant." 

Thomas Meux 500 John W. Sutherland 500 

Alexander Codcbum 100 William P. Crawford 200 

John Connell 500 Joseph P. Robinson 100 

George Webster. .. . 50O 

Another letter, addressed by Mr. J. P. Robinson 
to the directors, was as follows : — 

"Royal Bank of Australia, 2, Moorgats-street, 
London, 7th August, 1840. 

"Gentlemen, — In reference to the one hundred 
shares in the Royal Bank of Australia, whidi I 
agreed to take, in order to extend and secure the 
iMsis on which the establishment shall bo placed, I 
hereby bind myself, at auch time or times within 
four years from the date of the deed of settlement as 
shall be convenient to me, to pay the deposits and 
calls on the said sliaies, vntfa interest thcoeon, at 5 
per cent, from the time appointed for the payment of 
the same until such calls and deposits shall be paid 
by me. " I am, &c. 


"To the IHrectora of the Royal Bank 
of Australia." 

Mr. J. P. Robinson accordingly gave a promissory 
note fbr 1,0001. being lOt. a share on account of the 
100 shares. In the beginning of the year 1842, Mr. 
J. P. Robinson, went to Sydney, where he remained 
until his death, which took place in 1848. In 1847 
the promissorv note was sent out to tSi. Boyd, the 
manager of the bank at Sjdney, but Mr. J. P. 
Robinson was not in a position to dischMrge it. In 
the ledger of the bank, entries were made in Mr. 
J. P. Robinson's account of dividends on the 100 
shares, and of the 1,000/. promissory note, and the 
interest thereon. 

R. Palmer (with whom was Caimt) contended 
that Mr. J. P. Robinson's executors were not liable 
to be placed on the list In respect of the 100 shares, 
as these dtares were not allotted, nor was the deed 
•xecnted in respect of them. Hedted GoutAumitrt 
case (before die liord Chancellor'). 

The Vice-Cban-ckllor (without hearing Jfa/mt 
and Daniel for the official manager) said, that the 
Master had treated the 100 shares on the same foot- 
ing as the twenty shares. His Honour could not 
see how he oonld have done otherwise. He thouf^ht 
it a very dear case, and most refuse the motion 
with costs. ___ 

Saturday, ifarch 29. 
£rparfeHoi,uB, reTHE North op England 

Joint-Stock Banking Company. 
Joint-Stock Companiet Winding-up Acti — Con- 
tributory — TVan^eror ^tharet. 
A. B. the holdtr of tharet in a banking company, 
tranrferred them to C. D. in January, 1847. 
Previout to thii the balance-theett efthe accounit 
up to thtHott iif the yean 1845 and 1846 theved 
eontiderable profitinr thoteyeart. On the 6th 
Iff March, 1847, the bank tutpended paument, 
and the company wot qflerwardt ordered to be 
wound up. The perton who had prepared the 
balance-theett ttated in an <fffidamt that in fact 
there had been lottet in the yean 1845 and 1846. 
The Matter rrfuted to put A. B. on the Utt at a 
contributory in retpect qf lottet up to the date qf 
tranter ,■ and on appetd, the Court affirmed 
thit dteition. 

This motion vraa made on behalf of the official 
managers of the North of Bngland Joint Stock 
Banking Compuiy, and was, that the decision of 
Master Farrer, whereby he, on the 7th of Mardi 
inst. exdnded the name of Thomas Holme from the 
list of the contributoriea of the company as a contri. 
butoiT liable to contribute to the losses (if any) sas- 
tained by the said company up to the 21at day of 
January, 1847, or other the penod of bis ceaaing to 
be the holder of fbrty-eight aharea of lOW. «adi 
might be reversed, and (hat the name of the said 

Thomas Holme might be inaeited in the aaid list of 
contributoriea aa a contributory liable to contribote 
to the losses (if any) sustained by the compur vp 
to the 2l8t of January, 1847, or other the period M 
his ceasing to he the holder of forty-eight duu«s of 
100/. each in the said company. 

The circumstances of the case will appear firom the 
following jud^ent of the Master: — 

" Application of the official managers to indoda 
Thomas Holme as liable to losses under the 26th 
article of the deed of settlement. Thonus HoUae 
signed the deed of settlement in respect of shares 
amounting to thirty, and subsequently he >oqnired 
eighteen other shares. On the 21st of JanoaiT. 
1M7, he transferred these forty-eight shares to Marr 
Aitcfainaon,baTing'receiTed dividends orprofits vhidi 
became payable up to that day. The sum ci 
255/. 14s. has been paid by Mrs. Aitdilnaon on 
account of the calls made under this reference, and 
Samuel Hedley, by his affidavit, sweara ' that be has 
been informed and believes that Mary AitchinMB ii 
totally unable to make any further payment no 
account of the sud calls or dther of them.* Under 
these drcnmstances the official manager applies to 
indnde the traoaferor, Thomas Holme, as liable to 
losses under the proviso in the 26th article of the 
deed, ' that nothing in this artide contained shaB 
extend or he eonstroed to extend to release the pre- 
vious holder of shares so forfeited or transferred as 
aforesaid from his proportion of the losses, Haaj, 
sustained by the company, up to the period of his 
ceasing to be such holder as aforesaid. In Ham- 
thorn' t case he was induded in the Hxt as liable in 
respect of lones, if anjr, sustained by the company 
up to the period of his oeasing to be a holdo'^ « 
shares, but in the present case Mr. Holme naats 
being included at all, upon the ground that at tfcs 
time ne ceased to bis a shareholder tbe comiaiiy 
had not incurred any losses; and in sspport 
of that proposition he relies upon the reports of the 
directors, and mainly upon two balance-sheets. 
One is for the year ending the 3Ut of December, 
1845, by which it is made to appear that there was 
profit for that year amountiogto 9,773/. Is. I Id. out 
of whidi a iialf-year's dividend, amooatiof to 
3,732/. 148. 3d. was paid. The other is for the 
jear ending the 31 st of December, 1846, by which 
It is made to appear that there vraa a profit for that 
Tcwr amoanting to I3,42i;. 10s. 4i. tmtaf wMoh a 
half-yeai's dividend, amounting also to 3,732/. 14s. 3a. 
was paid. Messrs. Holme and Dees have fikd a 
joint affidavit. It is argaad on behalf of lb. 
Holme that these balance-sheets ate by the taraa 
of the deed of aettlemeiiit oonclusive as to the state 
of the afiairs of the hank at the oondnston of tke 
years 1845 and 1846. Tbe official manager inasts 
that the; ai« not condnstTe, and that he has a ri|^ 
to shew that in fact the coaapany on and prior ts 
the 21st of January, 1847. bad incurred ««iy heavy 
losses, and for that purpose he has filad' anaffidair^ 
sworn by Samoel Hedley, wboy at the opening <■ 
the bank, was appointed cashier, in Mardi 1835 me- 
eeeded to the office of manager, and in l^T^^ 
became managinc director, and so contmoad nnm 
the stoppage oif the bank, or till the order of nfa^ 
enoe to me^ and is now empioyed by the official 
mana^ as a clerk in aasisBn^ them in winding 
up this company's affairs. This person, who, ul 
understand, prepared the two balance-sheets •'■'^ 
I have referred to, now bv his affidavit states that n 
thetraihb<d be«n tdM In 1846 and 1M6itwoiU 
have appeared that the buik had at tiiat time it- 
curred enormous losses, and that, therefore, the re* 
presentations so made were in substance folse. Hist 
may he so ; but for tbe purpose of the present appb- 
oation I shall give so much weight to the h»)tace- 
sheets which he prepared, as to consider that Mr 
Holme has prima facie shewn that no losses had 
been sustained when he ceased to be a sharehcUett 
and therefore I shall not include him in tbe ^J^ 
contributories, subject of coune to the right of as 
official managers to applv again when they may be m 
a situation to shew that losses in foct bad been sus- 
tained on tbe 21st January, 1847 ; but to establish 
that result it will be necessary to do much more than 
file an affidavit sworn by the aforesaid Samuel 
Hedley.— J. W. P.— 28th January, 1851." 

The 26th and 45th clauses of the deed of settle- 
ment, and to which reference was made in the argu- 
ment, were as follow:. — 26. Whenever, by Wf 
means whatsoever, anv shares shall become setoMff 
forfeited, or shall be duly and effectually transferred 
to a new holder, then, and in such case, and not 
before, the responsibility of the previous holder, ss 
a member of the company in respect of such 
shares, shall (so far as the law will in that be. 
half allow) cease and determine, and such pnnoul 
holder shall be exonerated and releaaol fiom 
all subsequent daims, demands, and <>^U(^^*| 
in respect of the same shuea, and from |aU tntun 
obaervance and performance of the ^"^"^^ 
condttiona, stipulaDons, and agreements in the dsea 
of aettlsment, contained in respect of ti>* *^V 
ahsies, provided, nevertheless, Uiat nothi^m^tltf 
artide contained shall extend, or be conatnwa t> 

Digitized by V^OOQ IC 

Aprii. 5, 1851.] 





pueCN'* BENCH. 

i'*?"^' *" release the prerions hoMer of shares so 
orfeited or transferred, as aforesaid, bom his pro- 
>ortion of the losses (if any) susbdnei) by the oom- 
>any up to the period of his ceasing to be such 
lolder. as aforesaid. -15. At ereij half-yearly general 
aoeting of th.e company, the directors shaU exhibit 
o the aharefaoldera assembled snch a balance-sheet 
a they are re«iaired to prepare by the 69th article of 
ihese presents , and sach a statement of the probable 
akiuoant of tbe losses to be apprehended from the 
subusting accounts and engagements of, or with, the 
companjr, and generally of the state and progress of 
the kffaira of the company up to the 30th day of 
June sod the 31st day of December immediately 
preceding imch meeting, as the directors shall deem 
««P«lient for the interest of the company to be made 
pnblic ; and every such balance-sheet shaH be bind- 
ingf and conclusive on all the shareholders, their 
executors, admioistrators, and assignees, unless some 
error shall be discovered therein, respectively, before 
the next half-yearly general meeting, and, in that 
case, such error only shall be rectified. 
^Baeon and J. V. 'Prior, in support of the motion, 
referredto the definition of the word " contributory," 
in the Winding-up Act, 1848, and cited Bawthom'i 
aue. 1 DeG. &Sma. 571; 1 Mee. & Gard. 49; and 
GoutAwaite't case (before the Lord Chancellor). 

The Vice-chancellor said that if he put Mr. 
Holme a nanae on the list, he should be saying that 
what the shareholders had done was not condusive 
upon them as between themselves and Mr. Hohne. 

iJacon.— But Mr. Holme was a shareholder at the 
tamo these representations of the accounts were made, 
and, therefore, he should bear the consequences. 

•^- V- Prior said that if these balance-sheets were 
to be conclusive, it wonM appear that all the 
enormous losses of this bank had occurred between 
the last acconnt and March, 1847. Notwithstanding 
the state of the bank's afifairs, it was quite consistent 
that a profit might have been made in the particular 
years. (Oldaier v. Lavenitr, 6 Km. 239.) 

The Vice-Chanckllor (without hearing S. Pal- 
mer tad Bates for Mr. Holme), said that this gen- 
tleman was not liable for any loss incurred after he 
ceased to ba a shareholder, and Ws Honour conceived 
that the mere posstbilitv that there might have been 
a loss lostained befbre fae ceased to be a shareholder 
did not give a right to })lace his name on the list. 
He waa ot opinion that it must be proved of such 
persons and aoch drcnmstances, that there had been 
« toss sustained before the periAd in Question. Mr. 
Prior had sensibly observed that it was almost an 
Urasistible inference, from the nature of the evi- 
dence, that there must have been such losses at that 

C'od, by the stoppage which occurred and the 
mtsbte wieek they appeared to have made of it. 
That tiiere would be more force in that, his Honour 
thought, bat for the circumstance he was about to 
mention i that between these disputants for the pre- 
sent purpose, the balance-sheet lipmediately before, 
and the balanoe-sheet immedist^ after, the time 
Mr. Holme ceased to be a proprietor, most be taken 
to be conclusive,— that was between these disputants 
for the pnsent purpose. He «mld not ssythat in 
hm opinion s ease had been diewn for Mr. Holme's 
name being put on the list. He agreed vrith the 
Master m pying no attention to Mr. Hedley's 
affidavit. 1 he motion must bo refused witk costs. 

Tkurtdajf, Feb. 30. 
Waldbon «. SUIPKB. 
Practice—Short eUum—Cotti. 
A claim which hat been improper^ certified at a 
tkort claim, teill be ordered to be reetared to it* 
place in the general paper, if, when it eomee on 
to be heard it appeart that it will take time, and 
the party so setting it down as a short claim, will 
be ordered to pay the costs qfihe day. 
Bethell {Rogers with him) appeued for the 
plaintiff on the hearing of a claim which had been 
set down as a short dum. It was filed by an equit- 
able mortgagee by deposit of titie deeds. It con- 
tained all^ations that he had intrusted the defend- 
ant with a deed, which it was allwed was wanted to 
be inspected by a party who was disposed to pay off 
the plaintiff's mortgage— and alleged, tiiat by his set- 
ting up a fraudulent representation, evidence of the 
mortgage deed had been lost to the plaintiff; and it 
nused other questions. 

The claim had been set down as a short claim on 
the certificate of the plaintiff's counsel, in the usuid 

Stuart {Shapter with him). Cor the defendant, 
contended that the Court had heard quite sufficient 
of the nature of the case, as made by the claim, to 
know that the hearing of this claim must necessarily 
take time. The facts were contradicted, and much 
argument must necessarily be resorted to by all 
parties. He thraefore urged that it should not now 
be heard as a short claim, and asked for the costs of 
the day. 

Giffard and T. Wood for other parties. 
The Vick-Chamcellob. — ^Ihis evidently cannot 
be what is considered as a short claim or cause, and 
the course must be followed in this as in causes 
which are improperly set down as short causes. He 
therefore directed the claim to be restored to the 
general paper, and ordered the defendant to pay to 
the plaintiff the costs of the day. 
See Hills v. Treacher, 16 Law T. 457. 

▼. o. XAm aaLMarwrnmnwu oouitv. 

Bsported by W. H. Bsnnn, Baa. «f Unsda*»4aa. 

Friday, Jan. 10. 

Staplkto:^ v. Stapleton. 
Practice— Special case under recent Act— Signa- 

ture qf Counsel, 
ne Signature of counsel to the drtfl of a spe- 

dal case intended to be argued under the Act 

13 * U Vict. e. 35 (Wr. Oeorgt Tuma's 

Act), a sufficient. 

Ftemina applied to the Court that a special case 
which had been settled under Mr. G^ige Turner's 
Act as above, might be filed witti the Clerk of 
BecOTds and Writs. He had signed the draft, as he 
vonld havo done the draft of a bill, but the officers 
were desirous of ascertaining the opinion of the Court 
whether the engrossment also should not be signed 
by counsel. The section of the Act is as follows : 
oec. 10. "And be it enacted that every such 
•pecld case shall be signed by counsel for all parties, 
uu shall be filed in the same manner as bills are 
Hed, and that the defendants may appear thereto in 
the ssaie manner as defendants appear to bills; and 
that no defendant shall be required to take an office 
•^PI .of ■ spedal case, but an office copy thereof 
shj^be taken by the plaintiff." 

The Vick-Chancej,lor considered that the sig- 
■>*«>» of connsel to the draft, in the same way as 
to » draft bill, was sufficient, and ordered the en- 
POBsmant of the special case to be filed by the 
P'otw officer. 

Canuon lata) Gonrtf. 
oovax or Qnaavs bbvob. 

Bepotted by Adah B i iT u» f u ir and Paul FxaraUi 
Baqrs. Banisters«t-Lsw. 

Xov. 22, 1850; Jan. 18, 1851. 
Reg. ». Cottle and Another. 
Turnpike Acta —" Town" —Construction of statute. 
Under a Turnpike Act prohiliting the erection of a 
toU-house in any "town," the word "town" is 
rightly defined as an inhabited place where i/it 
dwelling-houses are contiguous, not necessarily 
touching each other, but so reasonably near that 
the inhabitants may be said to be living together. 
A local Act of Parliament, which was to remain is 
force for thirty-one years, prohibited turnpike 
trustees from " continuing or erecting any turn- 
pike or toll-gate across the roads in the towns qf 
of T. and W. or in any other town through or 
into which the said roads might pass or be 
Held, that these words were not to be limited to 
the " towns," as they were at the passing qf the 
Act, but that it Was unlawful for the trustees to 
erect a toll-house in any part qf the road which, 
by the increase i^ buildings, had become part y 
the town qf T. since the passing qfihe Act. 
This was an indictment against two of the trustees 
of the Taunton roads, for obstructing a highway by 
the erection of a toll-bouse in the town of Taunton. 
The defendants pleaded " not guilty," and the ques- 
tion was, whether under the powers given to them 
by stat. 3 & 4 Vict c. xzxvi. (an Act for more 
effectually repairing several roads leading from the 
town of Taunton, &c.) the defendants were justified 
in erecting the toll-house at tiie part of the road at 
whidi they had erected it. Bysec. 27of thestatute, it is 
enacted ' ' that it shall not he lawfulfor the said trustees 
to continue or erect any tompike or toll-gate across 
the said roads in the towns of Taunton and Welling- 
ton, or in any other town through or into which the 
said roads may pass or be made ; nor to apply, es> 
tend, or appropriate any of the tolls hereby granted, 
or any of the moneys raised by virtue of the said re- 
dted Acts, &c. or to be raised, &c. in repairing or 
amending any part of the said turnpike-roads in any 
town or place which is or shall be paved or repaired 
by anv commissioners or trustees for executing any 
local Act of Parliament." It was admitted that at 
the time of the passing of the Act (1840), the spot at 
which the toll-house had been erected waa not in 
the town of Tauuton, but since that time there had 
been a large number of houses built in the outskirts 
of the old town, by reason of which, it was con- 
tended for the prosecution, that the spot in question 
was, at the time of the erection of the toll-house, 
within the " town " of Taunton, according to the 
meaning of that word in sec. 27 of the statute. 

The indictment was tried before Mr. Gurney, Q.C. 
at the Lent Assises, 1 850, for the county of Somerset. 
The jury hsd had a view of the spol^ snd the ques- 

tion was left to them whether it was witiiin the 
"town" of Taunton. The laanied judge directed 
them, that by the word "town" must be understood 
an inhabited pisce where the dwellings are contign- 
ons, so that the ooenpsnts may be tdcen to be linag 
together; that it was not necessary that the houses 
should touch each other ; that it was sufficient if they 
were so reasonably near that the inhabitants might 
be said to dwell together. A verdict was found for 
the Crown, but leave reserved to the defendants to 
move to enter the verdict for themselves, if the pro- 
hibition in sec. 27 ought to be lisaited to roads which 
were in the town of Tkunton at the time of the pass- 
ing of the statute. In the ensuing term a rule nisi 
was obtained accordingly to enter the verdict for the 
defendants ; or for a new trial upon the grounds of 
nisdirectioo, snd that the verdict was sgaiastthe 

The misdirection complained of was, that the 
learned judge did not suffideatily make it a part of 
the definition of the word "town," thai there must 
be a continuous mass of buildings, and a oontinuons 
occupation. Elliott r. The South JMvon Sailwaif 
Company, 2 Exdi. 725, was dted and oonuncntea 
on, but 

Lord CAMrBBU., C.J. said, — Substantially the 
matter was left to the jury in the veiy way in whid> 
it is contended that it oujght to have been left. 
There was certainly no misdirection. 

Crowder, Butt, and FUzherbert shewed cause. — 
The verdict on«ht to stand for the Crown. The 
words in sec. 27 shew that the future as well as the 
present state of things was oootemplBted. The 
trustees are forbidden to " continue " or " to erect," 
and that not only in the towns of TauntonBsnd 
Wellington, but in any other town through or into 
which the said roads may pass or be made, then 
being at the time when the Act passed no othei 
town through or into which the rosd in qoestioil 
passed, bat the possibility of the formation of some 
new town being antidpated-by the Legislature. The 
lut words of the section speak of " any| place which 
is or shall be paved " by local commissioners. The 
stune rule of good policy is applicable to both present 
and future. The object of the statute was to provide 
for the varying wants of the inhabitants. If the 
place were actually to cease to be town in one direc- 
tion by the removal of houses, &c. there a toll-house 
misht be erected ; but if it grow extensively like a 
Urge manufacturing district iu another, there an 
existing toll-houso must not be continued. By sec. 
32, the Act is to continue in foroe for thirty-eoe 
years, a period in which most extensive ohsBBes of 
occupation mav take place. (Hammond v. Brewer, 
1 Burr. 376; Reg. v. Fisher, 8 C. & P. 612.) 

Kittfflake, Serjt. Moody, and M. Smith, in sup- 
port of the rule. — The word " town" must be taksa 
to be used in tlie same sense throughout the Aot. 
In sec. 14, it is recited, that there are saveial tniB- 
pike or toU-liouses belonging to the said turnpike- 
roads, in and near the town of Taunton, which it 
may be convenient to discontinue as toll or collect- 
ing Xlicre the word " town " must be 
limited to tliat which was tlie town of Taunton at 
the time of tlie passing of the Act. Hie same sec- 
tion gives power to sell the then existing toll-houses, 
but no power to dispose of any thereafter to be 
erected, which surely would have been given, if any 
thereafter to be erected could become unlawful by 
reason of the town being extended to them. The 
benefits and grievances as th^ existed at the time 
of the passing of the statute were before the eyes of 
the fivmers, and they were legislating for a state of 
things which they could see and know, not far mat- 
ters of which they could then know nothing. If • 
growing town had been in their contemplation, 
words plainly future would have been used, and they 
would not have confined the operation of the Act to 
a period of thirty-one years, within which no very 
violent changes were likely to happen. The woiM 
in sec. 27, "any other town," may applv to Mine- 
head, or Milverton, or other toirns whicn are men- 
tioueid in sec. 2 of the Act, for there are other roads 
regulated by the Act which do extend to othar 
then exikting towns. The Act provides powers for 
borrowing money and for mortgaging the tolls : it 
would he unjust to the lenders to require them, in 
looking at their security, to consider any other state 
of things than that whidi existed when the Act was 
passed. [They cited many of the former local Acts 
of the town of Taunton, but as these are either re- 
pealed or relate to different matters, they reaUy throw 
no light on the question.] Cur. adv. vuU. 

Saturday, Jan. 18.— Lord Campbbu., C.J. deli* 
vared the judgment of the Court: — In this esse 
baring expressed our approbation of the directioD of 
the learned judge to the jury respecting what oadit 
to be considered the limit of the town Tithinjue 
mesning of the Act of Parliament on which the in* 
dictment is founded, we took time to consider the 
point upon which leave was reserved to enter the 
verdict for the defendant, namely, whether the pro- 
hibition to coiitinne any tumpilw-gate across roads 
in the town of Taunton applies tothe town as it 
was on the 19th of May, 1840, when the Act ] 

Digitized by V^OOQlC 



[vol a. Mo. 418. 


9uce*ra icnch. 

qvtnn boiqh. 

4)r u it might be at uiftSme during tbe tUrtr-one 
yanrs far wiiich the Act wu to be in force. We 
fadweome to the oooelMion tfart tiie latter is tte 
Jwt eotutmction. Whatarer ineoBreaieiue miri*^ 
mIm from BOthonsiBg the cnetioii of a tom^De 
■ate in a place which, when the Act paMed, had 
Maa ia the ooanbT, and before ihe Act expired had 
beeome oeariy in (lie centre of a great town; if 
tlMre had been a dear enactment to that eflact w 
matt hare been booad b^ it. Bat lookiag to tin 
llgaagn Iiere employed, we tlnink ihe LwUeton 
eaotenqilatBd the prabable increaee of TWonton 
witUn a period longer than tiiat gamaaBy aa- 
fbr a ge ne rati on of tlie fenman race, 
intended that iti Inhabitanta aa it a- 
riHmld be eunpt ikom <i>e aanojr- 
■Bce of a tompike-gate catting off tiie free in- 
tneoane Iwlwueu neighi>oarv in the aaaae stveet. 
The words are—" It smII itot be lawM for tiM aaid 
tMMteei to ooBtinBe or erect any tomptka-gate aeron 
the aid toadi in tiie town* of Tanntoa and WeWng- 
ton, or in any other town thraoafa or into wliidi the 
arid read* may pan or be made." The wliole stnu- 
tee of the eiaose ia proepeotire. Wliat i< to be 
town mnat be tiie tame aa to thecontinaiag aa to tiie 
erecting of tlie gate; and if a new gate is to lie 
(Mated in the year 1870, the tnuteet are earaW di> 
neted to eonelder whether the road is the* wKhin 
the Hiaita of tlie town of Taanton, not whether it 
wai thirty years before. This coBstraotion is fmti- 
lied by ttierefrrence to " any other town throagh or 
iato wMeh the said roads may pass," meant, pro- 
bablr, to protect the inhabMants of any new town 
wUea mint sprint; vp within tin strict while the 
Act ahoola be in force. We are therefore of opinion 
nat ihe learned jndge was bonnd to lea*e tiie qnea- 
tkm to the jury whether, when the indictment was 
fimnd, the gate stood across a toad whi<A was to be 
caB Bi d ei ed at that time ia the town of T^ontoa. We 
haire Hkewlse to dispose of tiie application for a new 
tM, on the gronnd that the verdiat in thaaflbma- 
<h« was contrary to the eridenoe. Had the verdict 
been Ae other way, we shonld have, by no iMans 
diaapprsTed of it ; bat ooosideTing that, after ifrs anex 
eepnonable direction of the learned jodge, it turned 
CB a pore qaestion offset, to be decided by twelre 
MBtlemen who had had a Tiew of the locality, and that 
they may liave come to the proper oond u sloB, we 
thhak the Terdiet ought notto oe distorbed, and &e 
nlaforanew triidmnstbediadkarged. 

^^_^ /cme oiMAtffyea. 

Feb. I awl 22. 
AmkAHAM e. Thb Ombat Novmsair Raiiwat 

Stat, ate 9 Viet. e. 20, #. IS— Obfraeftasraovri^ttMe 

Wrer — Pwrehne vf the nit. 
A aa aetUtH on the can hy the ovner i^fveiitU 
tunigatmg a navigabte river agtanrt a raUvmy 
eompanyjor filling aji and obttrueling part <if the 
ted Iff the river, to aito prevent the water JHm 
fiMring in it* aeeuttomed ehannel in <a ample a 
maimer at it otherwiee tvould have done, and for 
eonteouent ii^urg to the plaintyf, the difendmttt 
pleaded that they had done the thingi complained 
^ wider and by virtue of their Special Railway 
Act and the Landt Cleutei and Jtailway CHauiei 
VOMolidalion Actt, which were incorporated 
therewith I that the part qf the river obilrueted 
mat among the landt delineated itpon the plant 
and tectiont and boott of rrferenee depotited 
with the clerk of the peace i that they entered, 
tce.Jbr the jmrpott (ffeonttrueting the railway, 
ma not otherwite : and that it wot neeetiary to 
ttnitraet the railway in the manner complained 
Held, that it wot neither ntcettaryfor the dffend- 
mut to allege in theplea, nor to prove at the trial 
that they had taken the remtitite tiept to veet in 
themiehet the toil and bed of the river upon which 
Me oittruetion wai erected. 
BM, alto, that under tee. 16 tfHat. 8^9 Vict. 
e. 20, a railway may be conttrticted upon the bed 
vfa navigable river, to at to interfere to tome ex- 
Unt with the flow of the river and with the navi- 
gation, although under that tection a railway 
co mp a n y hat no power wholly to alter the eourte 
o^saeA a river. 

This was an action upon the case for obstrneting 
the nayigation of the navigable river Ovae, whereby 
the plaintiff was damnific. The action had been 
directed by an order of the Yioe-ChanceUor of Eng- 
land, and s^>eciBl damage to the plaintiff was, by his 
order, admitted. At the trial before Alderaon, B. 
at the Summer assizes, 1850, the defendants had a 
verAct. Subsequently a mle niti was obtained for 
a new trial upon the gronnd of misdireedtion, or for 
judgment mm obttante veredicto. The facts and 
pleadings inSciently appear in the judgment of 

WMt shewed canse. 

VMttlley and Wortledge in support of the mle. 

Cw. adv. vult. 


Saturday, Feb. 22.— Pattbsow, J. delivered the 

fndgmentof the Coart.— TVs waa an action ontbe 
case, by the ownera of c ni ti ia vesaeU navigating the 
river Onse, and the aaeead eoant of the dedantion 
charged the defradaotawith filing ap and obstmct- 
iagpart of the lied of tiie river, penahig bade the 
water, and ptavenifaig it Cram flowing ia ita ascaa- 
tomed d iaim e l and oonraeia so ample a manner as 
it etiierwiae would have done, and preventing the 
plaintiff from passing along and navigating that 
part of the river. The defrndanta pleaded 
that tiiey had done the things complained 
of, under a apedal Act for aaaUng their railway, 
under the Laada Claaaee [aad the iRailway Claaaes 
Consolidation Ada; that the plana and boohs of 
refarenoe aare deaoattad with ^ dak of a>e peace ; 
that the psiiaf the bed of the river wUdi ww ob- 
stracted was amon^ the lands ddiiteated in the 
plans and described m the booin of refrreaee; and 
that the defrndaots did, far tha Barpoae of making 
and oanstmethig tlie railway ia the aaid Act men- 
tioned, and ondCT and by virtae of the provisiona of 
the said Acts of Paiiiament therewith ineonxnated, 
and not otiMiiriae, eater opon the add part of the bed 
fo the liver, and make and oonstmct part of the aaid 
railway tbereen, the aaaie being aeoeaaary (iw tha 
porpoae of makhig the railway. Aie plaintiff repKad 
dt at^uri^ apon which issna was joined. UpoaAe 
trial, it waa contended for the pUntiff, that 

delandaats, ander this plea, wan boond not only h> 
shew that that part of the rivar ohstraeted waa de- 
lineated and described in the plans and boaka of 
raferenoe, and waa aaedisr the nsceessry eoBatrae- 
tion of the railway, bn^ also that all the notksss te- 
quired by the Act for the pardiase of each part of 
nie rtver from Ae owaera «f the bed of it hadbeoi 
given, aad all other things done which were laqni- 
site to vest that part M the bed of the river in 
the eoapany. The learned judge told tiie j«y 
tiart the allegation in the plea did not make 
such proof neosssary, aad they found for the 
defenunta. A mle niti for a new trial has 
been obtained tnpon tiie ground of misdireotion in 
tiiia respect, and also for jodnnent aoa obttante 
veredicto, on the ground that u the judge was ririit 
in bis conatnotion of the plea, the plea is bad for 
the want of an aUegstion that those various acta had 
been done wliicfa it had bean indsted ought to have 
been proved at the tiid; and, ftnther, upon the 
ground that none of the Act* of FariiameDt antho- 
rised tiM company to eoBStmet tlieir railway upon 
the bed of the navigable part of a river. This rale 
has been arrned bobra us, and, i^n considerBtien, 
we are of ojnnioa that tiie learned judge was light in 
the ooasfraetion wUefa be put vpon the plea, aad, 
therefore, thatthereisaogrpimdforgraimngsnew 
trial. Witii respect to the judgment noa obttante 
veredicto, we are at opinion, that as aadnst the 
plaintiff in this action, wnohad no interest m (he soil 
of the bed of the river, but had only the right of 
passing along a navigable highway common to all 
the Queen's subjects, it was not necessary for tbe 
defbttdanta to aver or prove that they had taken &e 
proper steps to vest in them tbe ownership ef the 
bed of theriver. If tiiey were enti&d by Act of 
Parliamentto convert a portion of a nayigibie river 
Into a railway, aad so to obstnict and do away with a 
portion of the navigable channd, it cannot be 
material to the public at laise, or to those 
persons who were in the habit of narigating 
that portion, wlietherthe ownership of the bed of tiie 
river in that portion has been effectoally transferred, 
or whetlier any body is entitied to compensation in 
respect of such ownership, or haa or has not been 
satistied. The remaining question is, whether the 
defendants were anthorised oy any Act of Pariiament 
to eonstract their railway upon the bed of the navig- 
able part of the river. He Act on which the de- 
fendants rely is the stat. 8 & 9 Vict. c. 20, s. 16, 
the Railway Clauses Consolidation Act, wUdi pro- 
vides "Tbat for the purpose of oonstmcting the 
railway tbey may make or eonstmct in, upon, across, 
under, or over, any lands, or any streets, hills, 
valleys, roads, railroads, or tramroads, rivers, canals, 
brooks, stream, or other waters within tiie lands 
described in the said plans or mentioned in the said 
books of refsrence or any correction thereof, such 
temporary or permanent inclined planes, tunnels, 
embankments, aquedacts, bridges, roads, ways, pas- 
sages, conduits, drains, piers, arches, cuttings, and 
fences as they think proper." Tbey have here con- 
stmeted an embankment and a road in and upon the 
river descritied in the plan and mentioned in the 
books of reference. The word " rivers " is here 
used without any qualification; it wonldseem, there- 
fore, to include navigable rivers as well as rivers not 
navigable, especially as the word " roads," here also 
used, plainly includes hi|(hways along which 
the public have as extensive a right of pas- 
sage as they have alom; navigable rivers. Other 
provisions are introduced into the Act as to the mode 
of using roads, but none as t» the mode of using 
navigable rivers. Whether such provisions were 
intentionally omitted, and if so, for what reason we 
cannot tell ; but we cannot see that such omission 
justifies us in qualifying the meaning of the word 

** river" in thia tlaa se , cr, in effect. mAAin g Iha aiah 
" not navisable," which are not to be taaatd m de 
dane itsdf. Tlie dans and boolcs of lefacau 
woaU be before theXegialatarewhnn tbe meeUAct 
for eonstnetiiig tills raSway was paaaed, aadalthoHi 
it nw be tme, aa vraa sanested, that aio particaisr 
iafividnal felt so aracfa interest fai oppoeinK the Ail 
by reason of the insertion of a portaon of thea 
nav%able liversin saoh plans aad boolcs aa to naia 
it asnbjeot of contioveny daring tha praptreas at fit 
Aet, yet we an not aaiiaiilid in wapipttaiag that tht 
Legidatare overlooka saoh iasertioa, or in fiiiiffsn 
the uiiuiatloB of the plaia woids which tiie Laagisia. 
tore naa employed. A sufaseqaent pert ot the das* 
in qneatfam was relied upon by the plaintxlT miai 
provides that the ooonany "may altar tiie ooatseaf 
any rivets not navigable within such Isnda for (t* 
puipose of eonstraothic and maintaining toaadi 
Midges, passages, or otiier vmrks a>ver err nndar tis 
same, aiid divert oraltsr as weUtempoiaTO J- aa pcsma- 
nentiytheoomseof any sadi rivers," tbat ia, ^tives 
not navigdiie," in ordw the more oonv eii is ud) 
to cartT the same over, or ander, or by tbe sideaT 
the railway, as thOT may tiiink proper/* AnditaBS 
aifued that the Legislstare matmkadjr Ji s ta o Aid t* 
confine tha jxnrer of diverting and aUerxng tbaooon 
of rivets to thoae which are not naTinble, whiik 
would be entiiely fhntrated, if tiie word. '* nvwi^ 'a 
the prior part of the dame were held to iadadi 
navigable rivet*; since the langnags xiaed in tta 
prior part is so comprehensive aa to indode Ar 
power of di t et t iiig and alteiing the c our ae of tivns 
there aMntioned. Bat we think tint tiiia naiaag 
ia not sound. Tbe prior part of the cfauiae fm 
oaly tim power of couslf a e U ug piers in or ^os 
rivets within the lands described in the aaid |iha* 
or mentioned in the aaid books of reference; ystw 
tiiink not so as to enable the company to Mit» 
alter tbe entire eoune of such rivers, or to ohMt 
tbe whole navigatioit of them, being navifafals; (■ 
we cannot sopposethatthe Legislatiue woaU poaK 
saeh lands to be inchided in the plana and boiabrf 
reference as would enable the company so to ifirot 
or titer the entire course of navigable liren, or to 
obatract the entire navigation of tiiein. Bst tte 
latter part of the dause, which does apply to mA 
entire diversion or alteration in the contse of a tiw, 
is expretdy conAned to those whiefa sr e na t 
navlnble: the one ooatemplatc* th* 4>I'^ 
piiaoon of part of a river to tke van of 
nie rdlway, laaviog the readne of it ^^ . 
nsoal eontse, and &• navigation <( that Tcnoia' 
unimpeded where It is a navigriila inet; te 
other oontemidate* the entire diventoa tt wo 
vrfaole course. The electing anything in a nan- 
gable river or upon a highway which weaM be a 
nidsanostf not authoriaed by the Act of FadaaMalt 
cannot by any reasoaaUaoonslmctloB of iaagaacete 
considered as a diveiting or altering tha conise tf ma 
river or highway. No doubt such an eraetfam ina 
navUiiMe nver by preventing the water from flowiag 
at aR along the site of tiie erection would " {"""J 
the water of the river from flowing in its aoeastoeud 
channd and coarse in n ample a manner as it otbir- 
wise would have donOj which is the langu^ used 
in this declamtlDn, but whicfa is a very^ dilleieat 
thing from diverting or altering the coarse at As 
river within the meanhig of the stat. 8 & 9 Vict, c 20. 
For these lessons we are of opinion that the plea 
olqscted to is snfBdent, and tiiat the rule wiiich bti 
heea obtabed matt be ditdHind. Tbme yut a 
cross rule for a new trial obtuaed by thedefendaats, 
as regarded the grievances oomplained of Id the fint 
count of the dedaiation, which was for obstracting 
a road leading to tiie river. This mle was giantea 
upon the ground of the verdict fbr tbe plaintiff being 
against the evMenoe. It has not been ai^ed, b<it 
aa the counsel for tbe defenilaDts in signing tbe etiier 
mle said tliat they did not object to a new trial fBoe> 
rally, and as the counsd for the plaintiff vrisb ror a 
new trial, we know not wiiether they intend to diew 
canse against tbe defendants' rule for a new trial or 

It was intimated to the Court that neither petty, 
was now desirons of a new trial. 

By the Coimr. Rule ditcharged. 

Saturday, Feb. 15. 
Woodcock v. Pbitchard and Another. 
Rxecution—Diitrat for rent— Landlord^ t claim- 
Wearing apparel and implementt qf trade— 
Omnty (^urt* Act. 
The wearing apparel and implementt of trade qf* 
debtor to the value hi. are protected from teizurt 
under an execution ittued out qfa County Court, 
by t. 96 qf the County Court t Act; but if the 
landlord givet to the bailiff a written notice 
claiming arreart of rent under tee. 107, _'** 
bailiff may diiirain tuch wearing apparel or vn- 
plementi of trade to tati^y the rent. 
This was an action of trespass. The declaration 
stated that the defendants, on the Utb of September, 
1849, seized certaun goods, to wit, a bedstead, sbn- 
board, pillows, &c. of the value of &/. the same bang 
the beddiog of tbe plaintiff and his frmily, ami tbe 

Digitized by 


Antii. 5, 1851.J 

THE LAW times: 




imfiemeiilM of his tndtt wrf mu wrttd and disposed 
of the same, Ac. 

The defendanto pleaded, 1st, ICot nilty; 2ndly, 
That the goods ware not th« fBodi of the plaintiff ; 
Srdly, That the goods was Hsed aOer the passinK 
of me County Courts Ae^ and nndar that Act, and 
that no notice of sctien was gfrea; 4thly, That 
before the serirare of the goods a pUiint was levied 
hf one Steword ansnst Yfooieedk (the plaintiff) 
in ttie Whitaefaapd Coonty Conik for the sum of 
11. 198. ; that Stewsrd i ia uun a i e J judgment fur that 
■am and costs; that the snas i ssaie isd was ordered 
by that Cemrttobepaidst therateof 8s. per month; 
tliat Woodcock did not pay a e ro t d faig to the order 
of ike Court, wherenpoa, after default made, 
the deik of the oomt, at the r e q asst of Steward, 
iaacwd aji.ja. snd a ws i ias t of asaeotion directed 
to the bailifib of the said eootti fartiiwith to mako 
aixi levy the amount apes the goods of the plaintiff, 
emept the wearing apparel and beddiag of the plain- 
tiff and his fcmily, and the tools aad implements of 
hia trade, if any, to theTatoe of H.; that he had no 
goods in the Whitecfca^ distriet, whereupon a 
wamnt issued into ttie diBtriefr of Lambeth County 
Coar^ and was there executed ; and mder the said 
warrant tbe goods and Uiat l til s of the plaintiff found 
in his apartments were seized, {(>r the purpose of 
larjinf tibe moneys ao tMien ts d to be levied by the 
w arran t of execntion; that the landlady of the 
apartments gare notiee to the bailifi of her claim 
for >4a. as sneara of rant; and that they distrained 
as w^ the amonnt of rent as the debt and costs I 
nnder the writ, and took the ^oods in the declaration 
mentioned, as a Jis t i e ss (spsorfVing tbe goods exactly 
as they were speeiiied in the oeaamtion') for rent, 
and afterwards sold the same, as tbey were not 
repleried. The pbintiif took ismes on the other 
pleas, and demnrred to the last. The question 
raised on this de unui e i was, wheUier a bailiff 
execnting the process of a Coanty Court for debt and 
coBtB, and on whom notice <rf a okiiin for rent 
by a londloid is serred, can make a general 
Isvy on the bedding and implements of the 
faaoe of the debtor ander tlie valne of 5/. paying 
tbersoot the rent owing by tiie debtor to his land- 
lord. The 96th section of the Connty Court Act 
(9 & 10 Vict. e. »), proTidea "that every bailiff 
eseeoting aoy proooss isning out of the County 
Conrt against the goods and lAattels of any person, 
may, by virtne thereof, seise any goods snd chattels 
of snch person, except tbe wearing apparel and bed- 
4Hng of aach person aad his family, and the tools and 
instmments of his trade to flie Tslae of 5/. which 
Shan to that extent be protected fham seizure." The 
107th section sotiierisea the laniUerd, by any vrriting 
nader iss hand, or the band of bis agent, to be de- 
Uycnd to the officer making the lery (the writing 
stating ths terms of tite lioHiag and tbe rent payable 
for tile same) to dsim any rent than dne to him, not 
exceeding the tent of fear weeks, where the tene- 
msitt is let by the work; and in oaae of the claim 
being so made, the ofioer making the lovy shall dis- 
tiain as wdl for the amonnt of the rent so claimed 
and the eosts of aneb additional distress as for the 
aasoant of money snd eosts for which the warrant of 
exeention issued nndsr this Act, snd the costs of the 

The ease was srgned bcfme ^tteson, Coleridge, 
Wuditman, and Erie, J3. 

Hait, in support of flie J ea aur wr. Can the cxe- 
calion ereditor and the bailiff of the.County Court 
compel the landlord to take the debtor's wearing 
appnci and impIameBts of trade ? Was it the in- 
tention of the statute to aire them ay such power ? 
OMriy not. Section 96 oxpnssly protects those 
aitides from seixora nnder an execution; and 
when seoti<m 107 gires power to the bailiff to 
distrain for the landjord's rant, the subject 
matter of the section is eonfined to the goods 
liable to be taken in execatioa ; and that excludes 
the implements of trade and waaring apparel. 
[CountDGX, J. — Bat the tenant may replevy the 
goods seized ss a distress for the rent ; and he can- 
not replevy those taken in exeention.] Both are in 
the nature of an execution, as appears by the use of 
the words " additional distress. If that were not 
so, the greatest eonfiision would follow ; because all 
the other provisions of tbe Act relating to the sale 
and appraisement of the goods expressly apply to 
goods taken in exeention." [Coleridge, J. — 
The law had already provided for goods dis- 
trained.] Then there must be one appraisement under 
s. 106, of the Coanty Courts Act, of goods taken in 
execution, and a separate appraisement under the 
statnte of Anne, of goods distrained for rent. 
[WiGHTM AN, J. — If the tenairt replevied, the bailiff 
would return the exoeptad articles, and sell the 
others.] [Colekiogs, J. — How does tbe tenant 
suffer? If the landlord came in peisonally, he might 
take the exempted articles. The officer becomes the 
bailiff of the landlord for one purpose, but he is the 
officer of the Court for the other .1 The statute 13 
& 14 Vict. c. 61, s. 20, requires the landlord to be 
pidd out of the moneys raised by the execution. 
[WlSRTMAN, J. — ^Bnt that statute passed after this 

seizure took place, and is not retrospective.] Pal- 
grave v. Windham, 1 Stra. 214, was referred to. 

Hannen, contra, was not called upon. 

Coleridge, J. (o) — We are all of opinion that 
the plea is good, for the reasons indicated during 
the argument. Judymunt for defendants. 

cotnzT OF co»inio>r SEirca. 

Reported by Johs TnoMPSox and Di.xiEi. Tbomas Evuib, 
Eaqra. Barnsters-at-Law. 

Tlmrsday, Feh. 20. 
Geralopolo v. Wieler. 
Foreign bill — Evidence ofprotetts. 
Foreign bills were protested for non- payment 
{Dec. 10), and afterwards (Dec. 11), the plaintiff 
paid them, supra protest, for honour of the second 
indorsers. On the same day {Dee. 11) the pro- 
tests for non-payment and acts of honour were 
drawn up from the notarial registry, and sent by 
post to Moscow : 
Held, that duplicates (made after action brought) 
of the entries in the notarial registry af the pro- 
tests for non-payment, and of the acts of honour, 
were admissible in evidence as originals, and 
equivalent in all respects to the duplicates sent to 
The case q/'Vandewall v. Tyrrell, Moo. Sc M. 87, 
examined, and the true ground of the decision 

Assumpsit. — The first count stated that on the 
7th of August, old style, one Jean Petcheniff, at 
Odessa, in Ruiisio, drew a bill of e,\cliange on the 
defendant for 260/. payable three months after date 
to the order of Messrs. Birba, Freres ; that the de- 
fendant accepted the bill, and FratelU Birba in- 
dorsed it to Seigiiiori Fratclli Birba, of Moscow, who 
indorsed it to J. T. Fericks, who indorsed it to Giles 
Loder, who then by procuration indorsed it to the 
London and Westminster Bank, who presented it 
when due, on the 10th of December, 1849, for pay- 
ment ; that payment was refused, and the bill pro- 
tested for nonpayment on the said 10th of December, 
iat9; that on the lUh of December, 1849, the 
plaintiff appeared before the notary public, and de- 
clared that he would pay the bill under protest for 
tbe honour of the second indorsers, and that he paid 
it accordingly. 

The second plea denied that the bill was protested, 
and the third denied the payment under protest. 
On those pleas issue was joined. 

The second count was on n bill for 220/. In 
other respects, that count and the pleadings on it 
were to the same effect as the first count and the 
pleadings on it. 

At the trial before Matile, J. at the sittings after 
last Hilary Term, it appeared that the bills had been 
duly presented and protested for non-payment on 
the 10th of December; and that on the llth they 
were respectively paid by tbe plaintiff through a 
notary under protest for the honour of the second 
indorsers. The protests were regularly drawn up, 
and were forwarded by post on the llth of December, 
addressed to the second indorsers st Moscow. These 
protests were not produced at the trial, but secondary 
evidence was given of their contents, and also of 
the acts of honour for the bills ; and duphcates of 
them, drawn up by the notaries from their books in 
March and April last, after the commencement of 
the action and before the trial. A verdict was found 
for the plaintiff for 495/. with general leave to the 
defendant to move for a nonsuit or verdict for the 
A rule nisi was accordingly obtained. 
Friday, Jan. 17. — Channell, Serjt. ond Bovill, 
shewed cause ; and Byles, Serjt. argued in support 
of the rule. 

Authorities cited : — Vandewall v. Tyrrell, Moo. 
& M. 87 ; Goostrey v. Mead, Bull.N. P. 271 ; Orr v. 
Maginnis, 7 East, .^O ; 1 Selw. N. P. 380, 381, 1 1th 
edit. ; Chit, on Bills, 404, 477, and cases there cited ; 
Bavlev on Bills, 202, last edit. ; Beawes Lex Merc. 
Bills, pi. .34, 60 ; Marias, 87, 126 : Thompson on 
Bills, 495 (Scotch). Cur. adv. milt. 

Maule, J. after stating the pleodings as above, 
proceeded as follows : — Two points were insisted on 
on behalf of the defendant: first, that there was no 
primary evidence of the protest; and, secondly, that 
secondary evidence was not admissible. As to the 
first point it was argued for the plaintiff on showing 
cause that neither of the protests produced were 
original instruments, and that when the fact recorded 
in the protest had taken place, and had been duly 
entered by the notary in his book at the time of the 
transaction it was sufficient if the formal protest was 
drawn up afterwards, even although after action 
brought. For this several authorities were cited 
and the known course of practice relied on. On the 
part of the defendant it was not denied that such was 
the general rule, but it was contended that this rule 
was liable to exception in the ease of payment 

(a) Patt«floii, J. had gone to chambers. 

supra protest for tlie honour of the drawer of ttie- 
bill, in which case it was insisted that it was not 
sufficient that the facts recorded in the protest should 
have taken place, but tliat a formal instrument of 
])rotest must be drawn up or extended before the 
payment for honom-, and consequently that tlie alle- 
gation that the bills were continued and paid under 
protest was not proved, inasmuch as the protest 
must be understood to mean such protest as would 
give a right of action to the person praying for- 
honour. The authority on which the defendant 
reUed in support of the necessity of extending the 
protest before payment was that of Vandewall v. 
Tyrrell, which has sometimes been considered as 
supporting the doctrine contended for by the de- 
fendant. That case as reported was an action of 
assumpsit for money paid by the plaintiffs to the use 
of the defendant ; the defendant, who resided in 
Jamaica, drew four bills dated the 9th of September, 
1824 for 1500/. on Willis and Company in London. 
at nine months after sight ; the bills were duly ac- 
cepted, but were dishonoured and noted for non- 
payment, at the time they became due, the 30th of 
July, 1825; the plaintiti's at the request of tbe 
acceptors paid the bills for the honour of the drawer 
on the 8th of August, 1825, and gave notice to the- 
defendant the first foreign post. In May, 1826, tho 
notary public was instructed to protest the bill for- 
non-payment, which ho did ; the protest purported 
to have been made before tlie jayment, and in form, 
stated, that the " plaintiffs were ready to pay for the 
honour of tie drawer;" ho stated that the custom was 
to protest formally before the payment. The chief 
justice said, " the plaintiffs must be nonsuited ; tbey 
sue on the custom of merchants ; that custom clearly 
is that a formal protest should be made before pay- 
ment is made for the honour of any party to tbe^ 
bill." — Nonsuit. This report being short and some- 
what obscure, the Court took time to consider its 
authority, and requested the parties to obtain fur- 
ther information respecting it. We Imve since been, 
furnished with a brief, which one of the counsel in 
the cause held at the triol, and this has thrown much' 
light on the question. It appears from the brief and 
the notes of counsel that the bills in question in that 
case were duly presented and noted on the 30th of 
July, 1825, the day they fell due ; that the plaintiff 
paid tbe amount of the bills to the holder on the 8th 
of August. The payment was made by the clerk of 
the plaintiffs, no notary being present, and nothing 
as far as appeared being said by the clerk when he 
made the payment to the holder as to paying for the 
honour of any person. There was undoubtedly no. 
intervention of a notary with regard to the paymmt 
until May, 1826, when the plaintiff applied to the 
notary, who had protested the bills for the hoMnv 
who then drew up acts of honour on the same pufta^ 
as the original protests for non-payment : the protaatfr. 
for non-payment were in the usual form, and stated 
that the notary, on the 30th of July, 1825, presented 
the billsto the acceptor, whorefused payment; the acta 
of honour were not dated, but followed the signature 
of the notary to the protests for non-jiayment, and 
were in these terms : " Afterwards, before me, the 
said notary and witnesses, appeared Messrs. Vande- 
wall and Tippler, of London, merchants, and de- 
clared that they were ready and willing to p»y the- 
bill of exchange before protested, under protest fer- 
tile honour and upon the account of Joseph Tyrrell, 
Esq., the drawer of the said bill; holding, nevertho. 
less, the said Joseph Tyrrell and the acceptor of the 
said bill, and all others concerned, always bound and 
obliged to them, the said appearers, for the reim- 
bursement in due form of law, and according to the- 
custom of merchants, qnod attestor, signed by the 
notary." The notary stated in evidence, according t»- 
tho notes of counsel at the trial, that when a pay- 
ment is made for the honour of the drawer, the pro- 
test is mode before payment. The same note re^nre- 
sents Lord Tenterden as saying—" You must recover- 
by the custom of merchants ; you have not complied 
with it by protesting your bills before payment," and, 
thereupon, the plaintiff wos nonsuited. It appears, 
therefore, that in this case the plaintiff paid the bills 
on the 8th of August, 1825, without declaring to the 
notary, or otherwise, that he paid for the honour of 
the drawer, and attempted to remedy tliat omission 
by procuring an act of honour to be drawn up nino 
months after the fact recorded by the notary in that 
document; that is, the declaration by the plaintiffs, of 
their readiness and willingness to pay to the honour 
of the drawer, never having actually taken place. 
Now, it is a part of the mercantile law respecting 
payments for honour that they must be preceded or 
accompanied by a declaration, made in the presence 
of the notary for whose honour he pays the bill, 
which should be recorded'by the notary, either on 
the protest, or on a separate instrument. Beawes, 
on Bills of Exchange, placit. 57; ond Marius, 129. 
It would, indeed, be contrary to the general iirinciple 
of law and justice if a person who made a payment, or 
did an act simply without limit or qualification, conld 
afterwards, by a subsequent declaration, limiting or 
qualifying its effect, affect the rights of others: no per- 
son, therefore, paying money simply to the holder of a 

Digitized by LjOOQ IC 






bin eould, by the general nUtt of kw, by a mibw- 
qoent deelaiation cause a payment so made to 
aHume the character of a payment for honour. The 
cnitom of merchants requires the declaration which 
is to qualify the payment to be made in the presence 
of a notary. In the case of Vandeteall i. T)prrtll 
there was a substantial omission of the declairation 
in die presence of the notary, which is necessary to 
xire the payment the qiuJity of a payment for 
honour, and not merely an omission to draw up a 
formal statement of such declaration, and this sub- 
stantial omission was a dear ground of nonsuit, and 
the (?eH«ion mny be TOKtuineoon thst jroBttd. But 
it also Kiiprars that it actually ]inic<tilrd on that 
ground. The formal protest wliicU Lord Teuterden, 
as reported in Moody and Malkin, says, should be 
made before payment for honour, and the protesting 
the bills before payment, mentioned in the note of 
counsel of wliat Lord Tcnterdcn said, " you have 
not complied with it, by protesting your bill before 
payment," are to be understood not of the protest 
for non-payment, or not of that alone, but either of 
the protest and declaration before the notary that the 
payment is for honour together, or of that declara- 
tion alone. In the report in Moody and Malkin the 
reporters seem to have considered the protest for 
non-payment and the act of honour as one instru- 
ment, vhich they might naturally do, as they were 
on the same paper ; and it was the plaintiff 's interest 
to treat the protest and act of honour as one instru- 
ment. The language of the reporters is:— "The 
protest purported to have been made before the pay- 
ment, and m form asserted that the plaiutiflij were 
ready to pay for the honour of the drawer." Now, 
the protj'st for non-payment bore date the 30th of 
July, 1825, long before tlie payment, and it is in the 
act of honour, and not in the protest for non-pay- 
ment, that the assertion of readmess and willingness 
to pay is contained. The reporters, therefore, in 
speaking of the protest, must mean cither the in- 
atmment itself or the act of honour alone. In 
rither case the word "protest," as used by 
tiiem, must comprehend the instrument which 
contains the assertion of readiness and willing- 
ness to pay; and Lord Tcntenlen, in speaking 
of a formal protest, must be understood as speak- 
ing of such formal declaration before a notary as is 
before mentioned. Lord Tenterden is represented 
ia the note of counsel to have said, — "You have not 
complied with the custom of merchants, by protest- 
ing your bill in time." This seems to point to an 
onussion of somethiug which, according to tlic usual 
OBurse, the plaintiffs would have to do, and is more 
properly applicable to the omission of the notarial 
dedaistion which they ought to have made before 
payment, than to any omission of dj awing up the 
protest for non-payment, supposing sucji omission 
to have taken place. Protesting the bill for non- 
payment was a thing to be done, not by the plaintiff 
on the 8th of August, but by the holder on the 30th 
of July. It is no where stated in express terms at 
what time the protest for non-payment in the ca."e 
of Vandevall v. Tyrrell was drawn up or extended. 
There is no doubt the bills were protested for non- 
Miyment on the 30thof July, the day they became 
due, and probably the protest was drawn up before 
the payment, for it appears that the payment 
made on the 8th of August, in order to prevent the 
bills being sent to Jamaica under protest by tlia 
packet which sailed on the 9th. The brief for the 
plaintiff states that tlie bills, on being dishonoured, 
were regularly protested by the holder and indorsee, 
Mr. Simon Taylor, of London, for non-pavment, 
and the hills of exchange and protests were as fol- 
low : then it sets out the bills and protests for non- 
payment, and it afterwards states— "The parties 
appUed to the notary who had originally protested 
the bills to prepare the extension of the act of 
honour, and he prepared it on the same sheet of 
paper as the original protest." There seems no 
<k>ubt, from these circumstances, that the protests 
for non-payment had been extended before payment, 
and were, on tho Wt!. of Aiijusf, in the lii,i.iW of the 
bolder, 8imon Tsyhir, who was about to send them 
ts Jamaica the next day. We have minutely ex- 
amined this case, because it has sometimes been re- 
fand to as affording the high authority of Lord 
Tenterden to a proposition which introduoes an in- 
oonTenient and anomalous exception to the general 
role _ with respect to notarial instruments — that a 
duplicate made out from the original or protocol in 
the notarial book is equivalent to the oruiual made 
out at the time of the entey in the book. It ap- 
poaif on this examination that that case decides 
only, and in conformity with the general Uw, that a 
stmeqaent declaration cannot qualify a previous 
ao^ but that in order to have sndi effect the decla- 
ntioamnst precede or accompany the act, in con- 
formjttf wuli the law of merchanto, and in cases of 
Pyn wt for honour the declaration most be form> 
ally m*d« befcre the notary. There ia. therefore, 
■tothing in that decision which establishes any «• 
ceptieo to the general mle, or prerenta its appli- 
eicuin to the present casa, and we are of opnuon 
tliot Uw bills having bewi in &ct doly protested, and 

a declaration that payment waa asade for 
duly made before notaries, and these beta recorded 
in the usual vray in the notarial repstry before pay- 
ment, the duplicates produced at uie bial wefe ori- 
ginals, and equivalent in all respects to the dupli- 
cate which was sent to Moscow, and that it was not 
necessary to prove the contents of the last-men- 
tioned duplicate. Taking this view of the qnestian 
raised in argument, it becomes nnneoesaary to drter- 
mine the second question, wliether the conteitta of 
the protest forwarded to Moscow might be proved 
by secondary evidence, inasmuch as in whatever 
way that qnc?tion would be decided, our determi- 
nation of the first question would entitle tlie 
plaintiil to have the rule discharged. 

Jiule diteiarptd. 

coxTKT or xxcHZQtraa. 

Beported by FirDssicK Bailxt and C. J. B. HaaiSLB. 
Esqr*. BMTi*t«r».<t-Lur. 

FriJajf, Xot. 22, 1850. 


Ituurance — Comlruetire total ton — Xew THof. 
A cargo of com con$igned to ptrton* at Hull wai 
inmredfor the voyagt. Tht Tf$$el containing tie 
corn u-tu alrandtd on the coast of Noncay, and 
the corn was coniequently told ai damaged com. 
In an action on the policy claiming for a total loa, 
the judge left it to the jury to tag whether, with 
proper and reasonable care, the com might not 
kace been brought to Hnll in tht ttate of com 
though dama'/eii, and told at tueh.—that \f it 
might, there hail not been a total lott : 
Held, that such direction wat right. 
Held alto, that if the expense of bringing the com 
to Hull had e.rceeded the amount it would fetch 
there, it amounted to a total lott. 
This was an action on a policy of insurance, (fum- 
ing for total loss. It was tried at York at the last 
a:!sizes, before .\1di'r8on. B. when a verdict was found 
for the defendant. A rule nut for a new trial, on 
the ground of miiditection, was subsequently ob- 
tained, against which cause was now shewn by 

Walton, Q.C. (Hoggint, Q.C. with him).— The 
question in this < use is, whether there bos been a 
partial loss or a total constructive loss. The vessel 
contained a cargo of com, which was to be brought 
over to Hull, and she was insured for that voyage. 
Tlie vessel, however, was stramled on the coast of 
Norway, where a survey was made of it at a small 
village. The cargo of corn was found greatly 
damaged, and could not. without being kiln-dried, 
be brought on to Hull. The captain therefore sold 
it for 582/. Witnesses were called, who stated that, 
in their opinion, a prudent uninsured owner would 
have sold there. 

Pabke, B.— The rule was granted on the point 
whether the same principle applies to goods as to 

Ifatson. — Tho ressel was perfectly capable of 
carrying the care) to Hull. The question at the 
trial was. whether the com could have been brought 
to Hull in the sint.i of com. The meaning of total 
loss is explained in Labone v, Hallon, 19 L. J. 
101. C.B. ; linuj V. Salvador, 1 N. C. 52C ; Mou 
V. Smith, 19 L. ,T.228, C.B. 

Pabke, I!. — The meaning of total loss is "of no 
use or value to the plaintiff." 

Walton. — The jury found that by application of 
reasonable means it would have arrived as a cargo of 
merchantable corn. There never was a total loss, 
and there could not. therefore, have been an aban- 
donment. {Thompton v. Royal Rxchange Com- 
pany, IG Bast. ; Arnold on Insurance, p. I12I ; 
Freeman v. East-India Company, 5 B. & Al. 617; 
Anderton v. Wallace, 2 M. & Set. 240.) This was 
always a partial loss only, 

Willet ( Unthank with him) contra. — The gneetion 
intended to he discussed on the rule was, whether 
the com might have been brought as a merchantable 
article to England by tho application of reasonable 
care, and at a reasonable cost. The question to be 
discussed is the difference between this case and 
lA^orce v. Haddon. There was no notice of aban- 
donment in this case, whereas in that there was. 
The plaintiff contends that he falls within the third 
point in Roux v. Salvador. Tlie jury should have 
taken into their consideration all the expenses. 

Parke, B. — I. do not see that a notice of aban- 
donment makes any difference. 

Willet, contrk.-^The question then is, whether 
this is a constructive total loss, and it should have 
been so left to the jury. Cur. adv. mlt. 

Wtdnetday, Feb. 26.— Aloerson, B.— This was 
a new trial argned at considerable length before us. 
It was tried before me last Spring Assizes at York, 
and the question which was argued here vras, 
whether or not I had omitted to leave the point to 
the jury which was material to the issue which ought 
to Uve been determined. It was an action on a 
policy of insurance, and the question before the 
Court was, whether the plaintiff made out that he 
was entitled to recover as for a total loss. It vras an 

npoa paia :- and in tke eonne tt im 
voyage the vessel sustained considenble dimsgr by 
sea, and in conaeqasnoa tiienof was otdiged to pat 
into a port in Norway, and the cargo of ton on 
boari, being partially damaged, was tdum one fir tke 
purpose of oiahling tiie parties to repair the sUf^ 
and to continne the voyage. WWien the con 
was taken oat, it appeared &at it had snatajaed 
eonsiderahle sea damage. The question bcfate fte 
Court at Nisi Prios, mainly, vras, whether or lot 
thia loss was a total or average loss, becanse, is ooa- 
seqnence of the memorandum usoaBy oontsiiiedia 
all pofides of insurance with respect to com, tf 
there he only an average loss die parties cannot rr- 
cover at all upon it, hut if it be a total loes tkry cb. 
The question, therefore, aroae, whether diis was or 
waa not a total loss: if the damage sustained by th 
com in the coarse of the sea voyage be sneh as to be 
properly left to the jury whether itwassochas, ifOe 
Toyage had been continued, the com would hai« 
arrived in Bngland, at the port oif Hull, ia s 
state in wliich it vrould have been com or rab- 
bisb, so to speak. That point was left to tht 
jory. and detormined in favonr of the defcsidast ; 
tiiat is to say, that it waa in snch a state cf 
damacF, but that with proper and reasonable ene 
it mignt have been brought home and soU st 
damaged com when it arrival at Hull ; in short, thit 
it was a mere average loss, if that waa fiie pcnit- 
Bot there was another point made at Nia nis^ 
which was, whether or not it was a total loss in cais 
a party, if uninsured, wonld exactly have condacted 
himself as a reasonable man in the way in whidi tts 
plaintifb have conducted themselves ; that is (o By, 
selling the com and receiving tbe money, in-' 
stead of patting themselves to the eipSBse 
of bringing it home in a damaged state. Nov, 
I at that time was of opinion, and am so still, 
and I believe tiie Cawit entirely concur wil]i me ia 
it, that that was not the proper view of the ease ta 
be left to the jury at all. but that the real qaesdga 
to be left must have been whether or not fiie 
com vras in that state, that, if brought home, it 
eould not have been sold for an amount exceed^ 
the expense of bringing it home. If that weie a 
point which could properly have been made, sad 
eould have been properly determined in fivaor of 
the plaintiff, it would have been, in the opinion of 
myself and of the Couit, a total loss, and mat ques- 
tion, if it had been made at the tiiil, oaght aa- 
douhtedly to have been left to the ynj. I wu 
aaxious, thereibae, that the Court di(mM see whe- 
ther or not it hod been made a point at Oie tod 
before us, and for thst purpose we asked Hr. Vst- 
son to fbrnish us with the shortfaand-writei't Bdlit 
of the trial that took Mace before me stToik,tB 
order that my brothers Parfce (md FlaCt nughthsve 
an opportunity of seeing and heading all that lodt 
place at the trial, in order that Qtej (not myself) 
migU determine whether the point ati beea Oiade 
at all. Undoubtedly, if it had been made it «as art 
left to the jury, as it ought to have been ; hut I mast 
Say, if the point had b«n made at the trial, I AoaU 
bare determined it precisely in the same maimer n 
the Court now propose to determfaie it, namely, bjr 
saying that it would have been a clear total loss in 
ease the corn, if brought to Cngland, would not have 
sold for the expense of bringing It ftom tJie port in 
Norway to HuU for the porpose of being sold. Thereis 
no doubt about thst. It did so happen that in summiu 
up that point occurred to my mind, and I suntited 
to the jury what my opinion was on that point I 
did not leave it to the jory, but stndioiuly sab- 
tracted it from them, and they did not pass any 
judgment on it^ consequently, diere ought to have 
been a hew trial if the point had been made. Bat 
in trath (t was not made at all, nor could it have 
been made eonsistetttly with the fticis which woe 
proved, for the expense of bringing the com flrbm 
Norway (o HiUI did not exceed ISO/, and the tSSaf 
price of the com in Norway did amount' to traai 
500/. to 600f. The foct was, in real tmth the pomt 
was not made, becanse the facts did not warrant the 
learned counsel who led the cause in making it. Hy 
brothers, who have read the case, and looked at the 
shorthand-writers' notes of the trial, are of opinion 
that the point really was not made at all, and, con- 
sequently, though, in delivering judgment, we thhik 
it right to express what our opinion is upon tilie law 
of the subject, there must be no new trial, on tte 
ground that the point was not made at all, and thero- 
fore it was not left to the jury, and the reason why 
it was not left was, that the facts of ^e case did not 
warrant the counsel in making it. Consequently, 
the mle will be discharged. Rnle ditchargid. 


Bsportad by J. I^avT, Xh]. Birriater4l-La«. 
(Before Mr. Commissioner Hacak.} 

Tuetday, Jan. 28. 

Bx parte Kiarniv, re Keaknkt. 

Sight qf creditor to iertmittedtoU» original Mt,' 

Digitized by 


Anu5, 1861,] 






I m eate t»f eompotUian — Prineipal creditor be- 

[eoaiiHa teeurity for eompouHding deHor—Valu- 
mg pUdge. 
Alhough a creditor it not paid the amount of a 
I eompotition entered into viith hit compounding 

I debtor, he leilt not be remitted to hit original 

I debt, in cote qf the bonltruptcy of hit debtor, {/ 

I kt kimteff wat teeurity for payment of the com- 

i potttion to the other eroditort, and if bg hit con- 

i duel in the trantaetion it may be fairly inferred 

i that ht induced the other ereditort to enter into 

I He eompotition ; in tuch cate hit proof vill be 

coiUinea to the balance <^the original debt, after 
[ deducting the amount qf the eompotition. Jfht 

I hold a tecurity, he will be allowed to place a value 

I M it and deduct it from the mm for which he it 

mUitUd to prove: and \f he hold back any part of 
hi* debt at the time qf the eompotition, which he 
it auitequently paid, it will be deductedfrom hi* 

Thii caie wu argued by Levy, tot Kearney, a 
creditor, who ■ought to be remitted to his original 
debt, io ooosequence of not being paid a composition 
entered iato with the bankrupt. He sought also to' 
bare a Talue put on a policy of insurance which he 
held, to have that value deducted from his debt, and 
to proTe for the difference. Tn support of the right 
to revert to the original debt under such circum- 
ttaocei, Rr parte Vere, 1 Rose, 281 ; Ex parte 
Wood, 2 Dea. & C. 508; and £x parte Baleion, 
I Mont. D. & D. were cited. As to the right of a 
creditor valuing his pledge, De Gex's BanL Prac. 
195. and cases there collected, were cited. 

Walth, for the assignee, opposed the proof, on the 

Sound that the claimant haa by his conduct induced 
e other creditors to enter into the composition ; 
that he had not disclosed to them that he held a 
security ; and that having himself become security 
for the composition of the compounding debtor, and 
having assumed her debt, his right to prove for the 
coinposition was gone. He also contended that the 
poUoy of insurance, which he held as a plrdi^e, 
shoDld be brought in, end sold for the benefit of the 
estate; and the claimant, if entitled to pro%'e nt all, 
it should only be for the balance, after deducting tlie 
coinposition. To sustain these propositions, Richard 
r. Leert, 6 Adol. & E. 469; Cullingvorth v. LlovJ. 
SBeav. 385 ; McKenzie v. HcKemle, 16 Ves. ; nnd 
Ctwper V. Green, 7 Mee. & W, were cited. Tlie 
fitcts sufficiently appear in the able 
Hr. Commissioner Macan. — Iff fhe matter of 
Uvr Kearney, who had been a i>ridaw lady, trading 
inwaterfocd, Mr. James Kearney has put forward 
a proof for 547<. which appears to have been founded 
vpoo a loan of 400/. ongiaally advanced to the 
Makmpt fai 1845, and a sum of 207/. composed of 
mill iadoned by Mr. Keamev for the bankrupt's 
use, and snbseqnentW paid Dy him. These two 
nuos, amounting to 607i. from which the claimant 
nndeztakes to deduct 60/. the value upon which he 
hi* put upon a policy of insurance for 600/. upon 
the baokrmpt's life, wbicb^ it was stated, he liolds as 
* security, constitute his present claim of 547/. 
The caee has been argued before me by counsel for 
tiie claimant and counsel for the general crediton j 
•ad as it involves some very nios questions of law, I 
laive taken the trouble of looking into various auUio- 
rities besides those cited, before giving my judgment, 
and I was unable to find a case precisely analogons 
to the present. It appears that some time after the 
death of Mrs. Kearney shusband, Mr. JamesKeamey, 
her brother-in-law and the present cUumant. ad- 
vaooed her a sum of 400/. to enable her to carry on 
hei hosiness; and in the month of October, 1845, he 
obtiiaed m judgment for that amount agwnst her. 
The b^nce, consisting of the bill of exchange re- 
Anad to, haa not been ol^ected to by the assignee, 
and, therefore, no question arises with regard to their 
•mount, as it appears that the indorsement and pay* 
inant of them by Mr. James Kearney took place some 
tine anbseqaent to the deed of composition, to which 
I am abont to refer. The circnmstances connected with 
the advance of the 400/. by Mr. Keamev to the 
hanknpt were highly creditable to him. The entry 
in his ledger stated that the money was advanc id 
loan to pay Messrs. Taylor, of Liverpool, a debt 
which no doubt the^ were pressing. And if subse- 
quent events render it impossible, in my opinion, in 
pant of law, to permit Mr. Kearney to prove for his 
origiiial debt, I regret it, because I can duly appro- 
data the motives that induced him to come forward 
and aid the widow of his brother, and enable her, 
after her husband's death, to continue business, for 
the support of herself and her &mily. It appeared 
^ the 400/. had been advanced in June, 1845, and 
mt • policy of insurance for 600/. effected on the 
hie of the bankrupt, was about the same time 
•Migned to Mr. Kearney as a further security for the 
unnoe, betides a boad and vrarrant of attorney. 
Art I think I am watmnted in saying that the policy 
of imnnaitoe was effected originally for a purpose 
whouy hrrespective of the advance of the money. U 
1^ now before me, and bears date in February ; and 
the aMiiniaent was not until the end of June follow. 

ing. The assignment does not appear on the ttee of the creditor also releases the pledge which he holds, 
it to be given as a collateral security, but purports that he loses his right to retain a written instrument 
to be a sale of the policy, accompanied by aoondi- | deposited with him by thedebtor asasecurityforthe 
tion, that the premiums were to be paidby the bank- debt. Whilst I fully concur in this doctrine •■ • 
nipt herself, who, in jioint of fact, did pay them up general rule, I do not think it applies to this case, 
to the time of bankruptcv, these payments amount- The policy of insurance appears to have been some- 
ing to a sum exceeding 120/. It appears that about thing beyond a mere collateral security for the ad- 
the month of November, 1848, the bankrupt became vance made to Mr. Kearney. The bankrupt's de- 
embarrassed in her cirrnmstances, and she proposed position, upon which the assignee relied, stated that 
a composition of 10s. in the pound to her creditors, she was to [keep up the premium, the amount of 
to be secured by composition bills in this way— her which was equivalent to the interest of the 
own bills for the first instalment of 2s. 6d. and her 400/. at 5 per cent. ; and that when Mr. Kear- 

drafts on Mr. James Kearney for the remaining in- 
stalment of 7s. 6d. in the pound, at eight and twelve 
months ; and the conilition of the deed was, in con- 
sideration of such composition notes or bills, being 
banded to the creditors, they should take and re- 
ceive the same in full iwyment of their respective 
debts; and that, upon payment of said bills and 
notes or cash, the bankrupt should be released from 
all claims on the part of said creditors; and, in 
point of fact, all the creditors were actually paid the 
composition in full, except Mr. James Kearney himself, 
who, it appeared, never w.-\s paid anything on fftot of 
said composition iu ea!.h or otherwise, and never ap- 
plied for payment. I have, as I stated, looked into 
many authorities; hut I conUl not find a case in all 
respects similar to this. Here we have Mr. Kearney 
the principal creditor under the composition deed, 
and who was the first to sign it, actually securing 
the composition to all the other creditors by his own 
acceptances, whilst the condition of the deed was, 
that all the creditors, upon being handed up these 
composition bills, should receive them in full satis- 
faction of their respective debts. The arrangement, 
therefore, on the face of it, as far as regards Mr. 
James Kearney, is perfectly absurd. It enjoins an 
impossibility ; and the law never requires the per- 
formance of things impossible. Here we have Mr. 
James Kearney assuming the debts of his com- 
pounding debtor by giving his acceptances to pay 
them, and how could he be handed up his own ac- 
ceptances to pay himself the composition on his 400/, 
which was the sum set down opposite his name in 
the schedule of creditors, and which was the amount 
undoubtedly lent by him to the bankrupt in June 
18-15 ? He was not handed his own acceptances to 
pay himself, — the proceeding would have been too 
•bsurd,— nor was he made any payment on foot of 
the composition. It was then very strongly con- 
tended for by his counsel that inasmuch as no pay- 
ment had been made on foot of the composition, he 
was now remitteil to his original proof; that he had 
a right to i)rovo for the whole of his 400/. ; and that, 
by a well-known rule in bankruptcy, he had a right 
to put a value on the security held, deduct it from 
his debt, and then retain the security for his 
own benefit. As a general rule, these princi- 
iles were, no doubt, well established in bankruptcy. 
f a debtor enter into a composition, and make de- 
fault in the payment of it before bankruptcy ensues, 
the creditor is remitted to his original proof; and if 
a creditor hold a pledge, he is entitled to either put 
a value on it, deduct that value from his claim, and 
prove for the balance, or else have it brought in and 
sold for the benctit of the estate, and take his divi- 
dend on whatever it may produce. But it was power- 
fully urged by counsel for tJie assignee, that the 
drcumatances of the preseilt case and the conduct 
of the claimant were such as to disentitle trim firom 
the benefit of the application of those rules ; that 
in the first place, when entering into the composition 
with the bankrupt along with the other creditors, he 
had not informed them that he held the policy of 
insurance as a pledge, and that upon a composition 
between a debtor and his creditors, a creditor could 
not ostensibly accept a composition and sign the 
deed which expressed his acceptance of the terms, 
and at the same time stipulate for and secure to 
himself a peculiar advantage which was not expressed 
in the deed ; that a creditor holding a security for 
his debt might stipulate to have the benefit of it to 
the amount of the composition offered bv a debtor 
to his creditors, but that he must hold himself en- 
tirely aloof from the other creditors, or distinctly 
communicate with tbem on the subject if he at aU 
acts in concert with them. The case of ChiUing- 
worth V. Lloyd, in 2 Beav. — a most important one — 
has been cited in support of this doctrine ; and it 
was argued that, inasmuch as Mr. Kearney had not 
oommanicated the fact to the other creditors of his 
holding the policy of insurance, he should deliver 
it np for the benefit of the general creditors, and be 
content to take bis dividend on whatever |it might 
produce ; whilst on the part of Mr. Kearney it was 
contended that he had a right to put a value on it, 
deduct that value from his original debt, and prove 
for the balance. Whilst I adimt to the fVilIest extent 
the principle laid dovm in Chillingworth v. Lloyd, I 
do not think it applies in this ease. The ease of 
Cowper V. Green, 7 Mee. & W. was also relied on 
to shew that the creditor bad a right to give up the 
pledge to be sold fbr the benefit of tiie creditors. 
The doctrine rastained by that case is ;to the effect 
that by the release of a debt by a oompoiitibn deed. 

ney was paid his debt, the insurance was to 
be a provision for her children after her deaih. Tie 
distinction between the present case and that of 
Chillingworth ▼. Lloyd, in 3 Beavan, where the 
security was a mortgage, is quite apparent, He 
assignment of the policy of insurance is nothing more 
than a contract, from which the creditor is to derive 
a benefit if the security fail. It is dear, that if Mr. 
Kearney be now bound to give up tbe policy of 
insurance, he would have been bound to have given 
it up at the time of the coinposition. I do not think 
he was bound to give it up then, and that be is not 
bound to give it up now, but that he is entitled to 
put a value on it and deduct that value from tbe 
amount which he is entitled to prove for. With 
regard to the second point in the case, namely, the 
right to revert to his original debt, which had been 
contended for by claimant's counsel, I must take 
leave to dissent from it. I admit, as a general rule, 
that where a composition is entered into, and that 
default is made before the bankruptcy of the com- 
pounding debtor, the creditor is entitled to revert to 
his oi'igiual debt, but that rule does not apply in the 
present cise, and I think the arguments of the 
assignee's counsel on that point and the cases cited 
by him are unanswerable. The case of McKenzie v. 
McKenzie, 16 Ves. is perfectly applicable in my 
opinion. Hero wo find Mr. Kearney, who was by 
far the heaviest creditor, the first to sign tbe deed, 
thereby holding out an inducement to the other 
creditors to sign it ; we have him next, as I have 
already observed, becoming security for payment of 
the composition, and putting himself in the place of 
the compounding debtor, and under these circum- 
stances, although he has never been paid the composi- 
tion, and indeed never sought payment of it, I do not 
think the general rule applies to him, but that, on 
the contrary, his right to prove for it has been lost. 
Besides the cases cited by counsel for the assignee, I 
have, in looking into the authorities, discovered 
another case, which completelv sustains this view ; it 
is that of Good v. Cheeaeman, 2 Adol. & E. 328. 
There, a debtor being unable to meet the demands 
of his creditors, they signed an agreement, which was 
assented to by the debtor — to accept payment by his 
covenanting to pay two-thirds of his annual income 
to a trustee of their nomination, and give a warrant of 
attorney as collateral security. The creditors never 
nominated a trustee, and the agreement was never 
acted on, and one of the creditors brought an action 
against the debtor for his demand. The debtor 
appeared to have been always willing to per- 
form bis port of the engagement; and in that 
case it was held that the agreement, although 
not properly on record and satisfaction, was 
still a great defence on the general issue, 
as it constitated a valid new contract between 
the creditors and the debtor capable 6f being 
immediately enfotced; and the consideration m 
which to each creditor was the forbearance of the 
rest; and that a creditor shall not bring an action 
where others have been induced to join him in • 
composition widi the debtor, each party giving the 
rest reason to bcHeve that in consequence of fodt 
engagement his demand will not be enforced. In 
such case ^era is in point of fact and in point of 
law a new agreement substituted fbr the original 
contract with the debtor, the considention to each 
creditor being the engagement of the others not to 
press. 1 think, on the whole of this case, that the 
claimant having by hit actsevidently induced the other 
creditors toenterintothecompocition, and having thea 
become secority for the paymentof ithiinself,r«ia«nd 
it an impossibility, accordinf to the very terms of the 
deed, that he shonid pajr himself by lus own ■oeepfc' 
ances, he is now prednded firom 'proving fbr the 
amount of that composition, and that his proof must 
be restnuned to die oalanoe after dedncting the eom* . 
position. It was contended, on first opening the 
case, that his right to prove for any portion of tbe 
400/. was gone, but that position was, I tUnk, vtarf 
property given np. Iliere is, however, another item 
which must go in redaction of his proof; it is thi>-r- 
and as tlM»e is »n important principle involved in It, 
I could not pass it over, although it was not alludea 
to, or reliea upon by connsel fbr tiie asdgnee. I 
found, on reading over the bankrupf i depotitioiv 
that, since the oompoaition, she paid Mr. June* 
Kearney a ram of 35/. in fitll, which was dne to 
him at the time of the composition, btit vraS not 
taken into aooonnt then. It eaanot be Mrmittnl to 
any ereditarto keep back apart of bis demand whOi 
entering into a compolilMm with hit debtor, mf 

Digitized by V^OOQlC 



[VoL IT.— I*©. 4I«. 



Nni PMUt. 

•Ilerwatds he paid that demand in falL I ca^ot 
ptnnit it to appear that there was a shilling more due 
to Mr. E^eamey at the tin^ of the composition than 
fbe mm set oppodte to his name in the composition 
deed, and he ma<<t now deduct that 35/. from his 
ftoat. Let Mr. Kearney be at Hberty to proTe for 
tbe balance of bis original debt after dedncting the 
•nxnmt of tbe composition, and from this must be 
deducted the 35{. and tbe value set upon tbe policy 
of insonmce which he is allowed to retain for his 
own benefit ; he will of course prove also for the 
•mount of tbe bills paid by him for the bankrupt's 
us long subsequent to toe composition; either 
uitr it of comae at liberty to appeal to the Lord 
r ha ticell or from this decision. It was intimated 
oat no appeal would be taken. 

viKBmotMiTrva v\ 

Bqportsd by Dr. Wusnova, of Doeian* Ooaaon. 

Monday, Monk W. 
In the goods of Rev. 8. Wbhs. 

!nds ease is a^n reported, beeanse Hie leaned 
Jodge has come to a conclnsUm diSarent to that 
wiien it was first before him. 

On a Csrmer occasion (nmrik, p. 412), tlie Coart 
WW moved to giant admimstiaeon, wifli Oie win 
nnexed, of the goods lefl nnadnfoistered, to 
tte next of kin of the widow, the execotrix and 
nddnai; legatee (who had died, having left a will, 
Imt ^pomting no execntor or retid Mr y legatee) of the 
ttf^nia testator, aU the effects of sue* executrix 
n^Of m the archdeaconry of Totnes ; and tbe nn- 
umnustered estate of the original testator, consisting 
«rhis eqmtable interest, as surviving tmstee, of 
npt of a sam|of money, being in tiie Fnnds, and, 
Bhcrelore, bona nolabiHi. 

The Court rctjected tbe mofion, nyiiu ft could not 
owt the next of kin, Mrs. W. {the wiifow), and the 
.moaWx and residotrv legatee as repreaentmg tbe 
WWnd testator through the Totoea gnnt 

Jauur now renewed the motion. The will of 
mn. W. having been rightly proved in the Arch- 
teconry Court at Totnes, cannot be transmitted to 
flu Court ; and the persons to whom administration, 
y™ ™g "ill annexed, has been granted, cannot 
tteMOTe become her personal representatives by iti 
'jnHtcntty. The other coarse open to Ute parties 
htererted in the fund songht to be dealt with under 
ttfa admmistration, is to jqjn in nominating some 
penon to take administration with the will annexed, 
"""•o *^ ,^ '""^ *" question. That oourse, how- 
wer, would be very inconvenient and expensive. It 
" ■.I'de in the Registry of tbe Court not to gnat 
fdimnistTation limited toaoor/JMiof a ram standing 
Jn the n«me of a trustee in the BankofBnghnd. 
Almwt all tbe persons beneficially entitled to share 
to file fund have consented to (he grant as prayed. 
It appears that it has been tbe practice hi the 
Segistry to permit such grants under similar dicum- 
Manoee without objection. Several instances were 

ffir H. Jenvkb Fust.— I am disposed to make 
VBasBimt, It being for the benefit of the parties in- 
teested, and in accordance with the ordimry piac- 
Oee in tbe Registry, as ia shewn by the cases 


■*"•'* by W.J. lUn)U«a,Esq. ofllMlnaerTemnla, 
Ban i s t s r » t Law. 

Bonsaa nr londoit aftbb mr-my thbil 

^ , FHdm^, Fii. 21. 
(Before Lord Campbbu, CJ.) 

NbWBAU, ». WtLKlNS. 

■^ •^T"" '"^"/'^ <'I'»*V*V « Ptttnt. and 
jmitni: ' 

*T": " •~<'* i^patmU ton afbmed, was a4. 

J'^^J^pl'StifH, trOU eo2t,r * • •'*' 
'*™>to^— 7»e mrtptr eewM is to prodnet tmeh 

rtnord ^Ur tktjrial, wtd not b^t vtnUet. 

-f'^^."*c^°» on the caa. Ibr {nfriagiDg a 
yMmt, and a verdict, aflSiniag tiM vJUityrtf tlw 
_ yrt soii, Q.C. for the piaiatie^ then tendereda 
»BBat»4 of a fprnwr tnal. inwMoh tiw pateot was 
■toaed.m order to obtain fertiis pfau^to«Ue 
oMteaBderSfte W«i.< c. 83t »,a. •^™" """^ 
Jli^T*2i3-C. obj«*ed to Its reception after 
S&JUr** *"-»'•«» pre. inevide«oe 

Sh- F. Tketigtr, dC. for the yUoliff, tmd. timt 
"Aey did not wish to pngodioe tke defooJant't case 
V proving daring tke trial tkat tke question had 
been previously tried, and the validity of the patent I 

! previouslyaffirmed, and fliey had therefore postponed 

I tbe proof of it till after verdict. 

I Lord Campbell, C.J. — Tbe defendant bas bad 
tbe advantage of not being prejudiced by proof of 
tbe previous trial, during the present trial, and it 
would now be most ungradoos to object to its recep- 

3i. Chamben, Q.C. still pressed tbe objection, 
relying upon the words of the statute, which were 
as follow : — " That if any action at law, or any suit 
in equity for an account, shall be brought in respect 
of any alleged infringement of sncb Tetters patent 
heretofore or hereafter granted, or any icire faeioM 
to repeal such letters patent, and if a verdict shall 
pass for the patentee or his assigns, or if a final 
decree or deoetal order shall be made for him or 
them upon tbe merits of the suit, it shall be lawful 
for the judge before whom such action shall be tried 
to certify on the record, or the jodge who shall 
make sudi decree or order to give a certificate under 
bis hand, that the validity of tbe patent came in 
qoestion before him, which record or certificate 
being given in evidence in any other suit or action 
whatever touching such patent, if a verdict shall 
pass, or decree or decretal order be made, in 
favour of such patentee or bis assigns, he or they 
shall receive treble costs in such suit or action, to be 
taxed at three times tbe taxed costs, unless the 
judge making such second or other decree or order, 
or trying sucn second or other action, shall certify 
that be ought not to have such treble costs." This 
clearly contemplated that the evidence should be 
given on tbe trial and before verdict. 

Lord Campbell, C. J. — I shall admit tbe evidence, 
and it appean to me that the proper course has been 
puraued. The defendant's case ought not to be pre- 
judiced by tbe admission of tbe evidence upon the 
trial ; bat it oaglit to be proved subsequently, as 
this baa been. EviJenee admilleii. 

Sir P. T%m9tr, Q.C., TTatam, aC, WAittr, 
and DraiMii, for the pUintiflf. 

Tbe SoUeitor-Gaural, M. Chamben, Q.C. and 
Bmdmank, for tbe dafeiidant. 


Brrmres nr londoit afteb hilaby tebk. 

Uondm, Feb. 17. 

(Before Jervis, C.J.) 


fvi^Mce— Z>>e<ar«(ioiw. 
i>Kia>«<tsm vtait bf the plmntif at ihetinut^ 

impplyinp go»d» are adnatiibtt Jor Um, to prove 

that he then hnem of the exietenee <^ a dormant 

partner in the butmeti/or tehieh the good* mere 

eapplied, and that he woe retymg oa He credit. 
Batriee in the ptmntife ihop-boote mere mimutted 

Jar the tame purpoee. 

This waa aa aelioa for goods sold, and for work 
aad labour. 

The plaiatiff waa • printer, and had for some liaae 
priated tbe Literarp Gatette (at its preprietort. 
He had made tbe ooatraet wHh Jerdan, one of die 
proprieton ; and a partn ership between bias and the 
present defendant was proved, the defendant having 
been a dormant partner. 

Bple*, Serjt. (for tbe phuntiff) aaked a witness 
ealled by him, whether the plaintiff said aaytUag 
to him •• to tbe proprieton of tbe Oaxette. 

C*mmeU, Seajt. objected. The pbuntiS' could not 
give eridenoe of his own statements. He could not 
make evidence fbr himself. 

BpUe, Seijt.— The gist of the action was, whether 
tiie plaintiff gave credit to Jerdan only, or to all 
the pro p rie t er a . For that purpose, it was necessary 
to shew that the plaintiff knew that tbe defendant 
was tiien a partner. How oonld that be done but 
by ebewing that tbe plaintiff said that be was a 

Jbbvib, C.J. — For that purpose the evidence is, I 
tUnk, admissible ; but for that purpose only. Yon 
cannot uae U to shew tbe part of a partnerslup. 

Evidenee a d m itt ed. 

Entries in the plaintiff's trade books were also 
admitted for the same purpose. 

JMet, Serjt. and JUdpnard for the pUintiff. 

ChamneU, SMJt. and Phipion for tbe defendant. 

Timredap, Feb. 20. 

(Before Jkrtib, C J.) 

Stanbpikld e. Layton. 


A far m e r had a room m Air hemiefor teliiag fioar 

andpark i 
Held, that if there mm a tontiamas bapiug and 
eetting otherwise than at a farmer, he mat liaile 
at a trader to the bankrupt lawt. 
Alitsr, if he maretp to traded it the prodmte ^ kit 

This was a foigaed issue to try tbe right to some 
property. The pbuntifls were tbe assignees of a 
banknipt named Clark, and the defendant held under 
a bill m sale. Clark was a former, and kept also a 
shop or room in his house for tbe sale of flour and 
pofk. Tbe principal point in dispute was* wbetber 
Clark was a trader or not 

Knomlet, Q.C. for tbe defendant, in aiVliiasin^tk 
i jury, contended that to constitute Um a trader wttkin 
tile bankrupt laws, be must get his Uvinr by taadiag. 
(Rx parte Patterton, re Bryant, 1 Rmc, 40»!) 
Where a man sold stone which vras duglivm his oim 
' land, it was held insufficient to make him a trader 
(£x parte Gallimore, 2 Roae. 424.) In this cms 
' the farm waa the chief source of piroSt, and wis 
; chiefly used to supply the fonn-bbonrera. 
] Jervis, C.J. (to the jury.) — To uoii sti tate a 
trading, there must be a buying and aelUng, nots 
: single act, but a continuing buying and aeWng; erm 
' one act will do, if there is an intention to eontiBae 
it. As a farmer be cannot be made a banknipt, bat 
as a dealer in goods be may; tiie deaUiw must not 
be with the form produce only. If I feed pip or 
cows by means of my farm, and then sell them, 1 it 
not thus become a trader ; but if I buy mSk mi 
retail it, I do become a tiader. If a person bajn 
I horses uid sells them again, and bas the intentioaof 
I continuing to buy and sen, be is a trader. So ben, 
if Claik bought and sold flour, and eitber contiBssl 
or intended to continue to buy and Bell it, he ii t 
trader, whether be so retailea ft in exdaB|e fir 
money or goods. But, on tbe other hand, if hi 
merely sold his own flour, wbetber he reeeiveili 
exchange for it money or goods, ft ia not sgfidHi 
to make him a trader. Is there, tiien, in tins can s 
buying and selling of goods by Clark otiienrise fla 
ss a former ? If so, Clark was a tzader, sad jn 
will find a verdict for tbe plaintiC 

Bylei, Serjt and H. BiB, for tiie plamtiff. 
Knomlet, Q.C. and Vamtinmm. for tbe c' ' 


Ballo t e d by W. Sr. laan BaaoaaiaE. 1^. 

Mandap. Dee. 2. I8S0. 

SW EWU W B. Cow AN. 

ini am t tian — Plen p h in p op rahUt ■ aiii vatCc. 
The atomgkmf apipa te nan t of land iticttd mtk 
rabbilt, it not matte, mht rt the land hm neither 
been tpeeiJSeaIfy demited m a raUtf wentK *r 
it not a marren bp charter or preterimtiat. 
In this case it was aeaght by the piaintif to eea* 
tinve, uBtil the bearing m tbe etase, aa attaOiaa 
which had been obtaiiwd to iesh a i > tiie Meotet 
froaa breaking op a certain portion aftfat pcemiai la 
tbe Ull menliODad, whicb had been kBownsadased 
•a a labbst-WBina. The peculiar focU o( the gbn 
appear sulBriaatty ftoss tbe judgmaHtof tbeCoait. 

The Master of tbe Rolls.— Tlie iajuactiaB Ii 
this case waa obtained to leati ain the defeodant nl 
bis workmen, &c. and each of thena, from cattfa^af 
a portion of tbe demised pr e i u is c a, known as W 
reobit-warrea ; and the case which bas been aafe 
by tbe bill appears to be this : — Thoous Cbmi 
bmng entitled to a lease of tbe lands nadatkew 
of Unrry, on tiie 29th July, 183S, made a aaMea* 
to tbe defondant for 18 years, at tbe rent of 6W. 1 |«ar. 
Iliere were 309 acres contained in the demised biid^ 
bring along the shore of Lough Foyle. <^ which thi 
bill alleges that 190 bad never beoi bri^en a^ M 
remained a rabbU warren, consistini of smsDnolH 
and long pass. The valne of rabbat wanea !■ 
materially decreased, and, since tbe potato Ml84 
as sandy, unbroken ground, is oonsidend the bcsit) 
avoid the diaease, — although tiie groniid of the ds> 
fendant is light, it is alleged that persoiu were fonl 
who were disposed to pay 4i. an acre (or it. Tks 
bill then cfaaiiges that, exdusive of the cnltivatsd 
ground, the tenant was about to plough v A* 
rabbit warren, thus ""'""r ft no longer av^tut tct 
the usual purposes towhidi tiiis part of tbe land lal 
been appbed; and that tbe removing tike nUk 
holea would cause tbe sand to be loosened, and drift 
over on tbe anble pound. That is tiie short ontfiae 
of the bill. The defendant, in his answer, deniti 
that two-thirds of the lands have been joei ftar tha 
purposes of a rabbit warren; and be abo stats 
that he has used the fbrm under the eye of tbs 
plaintiff, bringing as much of it into cnltivstion sa 
possible, and be denies that any portion of ft b* 
been let to him as a rabbit warren ; and tbe leaB 
supports this new of tbe case. Tbe plaintJiTa vie* 
of tne case assumes tbe law to be, that tbe plon^iiiif 
up of a rabbit warren constitutes waste at commi* 
law; and if this assumption is not warranted, flM 
the plaintifi*s whole case is at end. In 22 Tmrs 
Abndgmeot, 433, tit. "Waste," which, as br « 
RoUe goes, is a translation of that author, tf» 
stating what is waste, the plougMog up of a labUI 
warren is considered not be waste, unless It is • 
warren by charter or prescription. The same pio- 
posidon is laid down in other idiridgments, and 80- 
graves, in bis note to Coke on Littleton, S3a, noteqi 
states, that ualess there is a warren by dMUter « 
prescription, tlie ploughing up of land stocked «iu 
conies would not amount to waste. I do not neas 

Digitized by V^OOQ IC 

Apbil 12, 1851.] 






to SBT tiut ifs person leww* rabbit warren, u sndi. 
the iesse* comd divcvt it to U17 otli«r purpoMj 
bat thmt is not the qoestion before the Court. The 
«••• does not apiieu a pUin one at law in fnoia of 
the plaintiff; and the rule laid down by Lord Cot- 
tenbwn, in Steveiu t. Ktatmg, 2 PhiU. 333, ought 
to b« followed, nameljr, thatanioji^iction onght not 
to bo oontiaoisd untU the hearinc, if it is at all 
likMy that the plaintiff's title is without foundation; 
for tLe adopting any other course might be inflicting 
an irrepamole uynry on a defendant The injunc- 
tion, therefore, must be refused. 


srrmrGs at nisi pairs aftbb hilabttesm. 

Saturitty. Feb. 8. 
(Before Pioot, C.B.) 
Obk and Baooot, Assignees of Praor, 
' c. MvaoocK. 
, Stoppage in transitu — Banirtaicy — TVover. 
If. and oliert, ditiUlen, rending in Seotlaad, 
having told twelve punckeoni of vhitky to P. 
eaho retfdtd at Newty, ut Ireland, they bonded 
the wiueky w tht Qfueeti iloret at Ifewry, in 
their oum nanue, giving to P. a delivery order to 
the exeiee etorekeeper, and an imioiee; P. from 
time to time, loot eight of Ike pwuheom out of 
th» bonded toareiouee, but Mt uuehency haeau 
ieeome known to the die filler*, they etopped the 
delipery of ike other four punekeone and eold 
them to the defendant/ P. having become a 
Beta, oa the authority 0/ Haig v. Wallaoe (2 Hud- 
eom Sc JOrooitfe Sep. 671), that the right to ttop 
in tranaita tea* gone, and that troeer by the 
aeaigneea <4 P. lay to reeoetrfrotn Ike d^endant 
the value vthefiur punekeone eold to htm. 
This waa an action of trorer, brought by the as- 
iirnrnn of one Puidy, a baaimipt, to recover the 
TUne of four puncheons of whisky, which had been 
•oU to Furdy by certain Scotch distillers. It ap- 
peared from ttie evidence that the firms of Meniies 
aad Co. of Edinburgh, and Stewart and Co. of 
Paialey, sold twelve puncheons of whisky to Purdy, 
who resided at Newry. This whisky was sent from 
Scotland, and bonded in Newr^ anaer the Bonded 
Warebousing Acts in the distillers' names, and a 
iaUyeacy or&r and invcdce were given to Purdy, 
idM), £rom time to time, drew out eight of the 
Boncheons from the bonded stores ; but upon his 
maolTeqcy having become known to the distillers, 
they stopped the delivery of the other four pnn- 
eheoof, and sold them to the defendant, and now 
the aSMgnees of Purdy, who had become a bsnk- 
mpt, brought the present action to recover the value 
of the fonr puncoeoQs which had been so sold to 
the defendant Upon this state of facts, 

WDonough, Q.C. and Xfpy called on (be Lord 
Chief Baron to direct a vmiiot for the defendant, 
eoateadiay thBt,iBaemuchas the whisky was bonded 
in the distiller's name, be therefore was still 
liable to the Crown fur the duty, A cliear distinction 
aztstad batsreen a bonded store, and the store of a 
wharfincer used by a vendee, and the right to 
stop tiie whisky ta trantitm upon the insolvency of 
the pmcbasar existed at any tune up to the moment 
that he paid the du^, and the wlusky came to his 
hand*. (iTEwan v. Smith, 13 Jur. 2C5.) 

mtegibbon. Q.C. apd $. D. FitxferM, Q.C 
for the plaintiffs, argued that the dehvery order to 
the Excise Storekeeper so ehanged the possession 
and ownership, that the right to stop w trantUu was 
tone ; and that upon the bankruptcy of Purd_y the 
ligfat to the whiwy became vesteid in the plaintiffs 
M his assignees. (,Oroker y. Iiawder,9 J. It. R,2\i 
Saig ▼. WaUace, 5 Had. & Br. 671.) 

Pmot, C.B. said, that thoofh at flrst be had in> 
cUned to the opinion that the n^t to itop in tran- 
eitu exkted, yei on the aothcrity of Baig v. Wat' 
laee. 2 Hud. &. Br. 671, be was bound to tell the 
jvry to find for the plaintiffs, leading it to the defend- 
ant to raise the question before a &>urt of Error. 

The defendant's counsel then tendered a bill of 
woeptions to his lordship's charge. 

Verdict for the plaintiffk, 

I BeportMl by J. B. O'FuxiejJC, Esq. Barristar.aS-Iaw. 

Nov. 5 and 6, 1850. 

I Hare and Others v. Cork and Bamdon 

Railway Company. 

I Itattway company taking potteuion of land irre- 
gularlff—No ii^unetion where the eiretmutancet 

I eilowjuitiee to be done without public detriment. 

I Where a railway company, huteadof obierving the 
mode pretcribed by the Landt Claueet Contoli' 

' dation Act (8 Vict. e. 18), to obtain poteetiion 

ef land, the amount ^ compentation for which 
M diipuled, enter into pottettion, and toy theu 
had the content q^ the ownerf tolicilor, on bill 

i filed for an injunetion, to rettrain the progreu of 

I the worki, the defindanit file an antwer, which 

VO&. XvtX. We. «1». 

it verified by an affidaeit qf tke tolieitor for the 
company, ttating variout negoeiationt and cou- 
veriotiott* witk the ownert' tolieitor, who filed 
an ^ffidatit in reply, contradicting theie itate- 
mentt. On the ityuaction being moved for, 
Beld, the affidavit verifying tke antwer being tm- 
necettary, autkoritedtke affidavit in reply to be 
uted, but the eotit of neither thould be allowed 
on taxation. And, although in tirictnett the 
itgunclion thould go, yet at great public injury 
would retult from ttopping the workt, without 
corretponding benefit to the plaintiffi, the better 
count wot, to tag, — no rule, the company at 
once to obtain the finding <^f a jury, and to pay 
all the eoite fairly incurred. 
This was a motion to restaain the defendants 
firom proceeding with the Cork and Bandon Railway 
under the following droamstanoe*. 

Certain land, smtable for building-ground, in the 
neighbourhood of Cork dty, was the subject of ne- 
gocution between the'plaintiffs and the Cork and 
Bandon Railway Companv. The company did not 
proceed under the Act to have the amount of com- 
pensation, which was disputed, duljr assessed by a 
jnrv, but relied upon some negociation between the 
SQUdtor of the plaintiffs and of the company, which 
the company treated as giving a consent to enter the 
land, and accordingly they made cuttings, which the 
bill was now filed to prevent being proceeded with. 
On the 8th of March, 1850, the plaintiffs' solicitor 
ftindshed an abstract of the title, but no steps were 
taken by Uie company until the Sth of July, when a 
notice was served, offering 64^ as the valne of the 
land. The plaintifl^ claimed 1,600/. and the com- 

5 any having entered on the land on the 22nd of 
uly, the bul for injunction was filed on the 7th of 
September. The defendants, by their answer, relied 
on consent and acquiescence, and the defendants' 
solicitor mode an affidavit verifying the answer, 
stating that the solicitor for the plaintiffs consented 
to allow the company into possession, in consider- 
ation of the solicitor tor the company expediting pro- 
ceedings, to ascertain the amount to be paid to the 
plaintiffs. This affidavit was replied to bv the 
solicitor for the plaintiiEi, who contradirtea the 
details of conversations in the aiEdavit of the com- 
pany's solicitor. 

T\ie motion being opened by /. D. Fitzgerald, 
QC. with whom was Morrison, for the pliuntiffs, 
and on proceeding to state the answering affidavit, 

Coppjatger, Q.C. with Green, Q.C. for the railway 
company, contended, no answering affidavit could 
be used. {Sock t. Mathewt, 2 Oe Gex & S. 227] 
Norway y. Rowe.l^y a. 144.) They did not seek 
to rely on the affidavit filed with the answer, which 
was med because the defendants' answer, being that 
of a corporation, and not on oath, appeared to re- 
quire verification. 

Fitzgerald, Q.C.— Tlie defendants do not rely on 
thair affidavit, because it is displaced by our answer- 
iiw affidavit. That snch an affidavit might be used 
when no title is disputed appears fVom Gibton v. 
Nichol, 6 Beav. 422 ; Madox v. Veeveri, 5 Bear. 
S03. It is where title is in dispute the rule applies 
that affidavits filed after answer cannot be used. 
(Jfoiuon V. Jenningt, 2 Hare, 030.) 

The Lord Cbakcbllor.— When an alBdavKb 
filed to verify an answer, is it not an admission of 
the party's willingnsu to allow the case to be dis- 
posed of on affidavits? I do not know any case like 
this. I think the affidavit may be used. 

Fitt^eraU, Q.C.— We are clearly entitled ta this 
injunction. This case is within the Lands Clauses 
Consolidation Act, section 21. There should have 
been the verdict of the jury as painted out by sees. 
38 and 39. Another course may have been open to 
the company, vis. power to enter on the land before 
the amount of compensation is decided by lodpng 
money in the bank, and giving the bond prescnbed 
by the 85th sec ; but then the full amount claimed 
should be U>dged. (Willey v. The South Eattem 
Railway Company, 6 Railway Cases, 100; The 
River Dun Navigation Company v. The North 
Midland Railway Company, 1 Railway Cases, 153; 
Fi-ewin v. Lewit, 4 Myl. & Cr. 254 ; Lee v. Milner, 
2 Y. ft Col. 618; Gray v. The Liverpool and Bury 
Rtalway Company. 10 Jurist, 364.) 

Green, Q.C. and Ooppinger, Q.C. coatii.— The 
company have availed themselves of one of the modes 
pointed oat b^ the Act. There is a provision in the 
Act that arbitntion may be resorted to. Here it 
wooU be imposuble to comply with the SStii section, 
aa the plaintiffil never informed us how much they 
daimed, and we had the lands valued by a magistrate 
conveisaat with valniiig land, who valued them to 
64/. These baa beeo aeonieacence on the part of 
the plaintift ; and the defendants went into posses- 
iion with the consent of the plaintiffs, throu^ their 

Morriton, for the plaintiffs, replied. — It has bean 
truly observed in one of the esses on this subject — 
" There are two arguments invariably adduced by 
these conpaaias: if tiie plamliff comes to the Court 
complaining of an injury at the commencement, it is 
said that the damage is trifling, and the actioa frivo- 

lous and vexations] if he. waits imtil it »t"^i. g^ 
graver shape, it ia said he has aoi^uiesced, uid is 
therefore precluded from complaiwng." In the 
present case there is no contuoed aoquiescenca, 
{Inaocenl v. The North Midland Railway Com- 
pany, I Railway Case*, 2^ ; The Proprietort of 
the Northern Bridge v. ne London and South' 
ampton Railway Company, 1 Railway Case*, 653] 
Barnard v. Wallit. 2 Railway Cases, 186.) Expres* 
authority to consent should appear. ( ^ood v. Led- 
bitter, ISMee. & Wels. 8380 

The Lord Cu ancrixor. — In this case the ownw* 
of the land taken by the railway company are enti' 
tied to compensation, and the company having tuletl 
to comply with the provisioDa of the Act, and en- 
tered into posscsaioiu stand at present in the con. 
dition of persons dealing with the moiierty of others 
without aaj title, and the plaiatins nave a right to 
the interposition of this Coiut, to say they anould 
not proceed fiurtherwithont making compenaation. In 
strictness, therefore, the injunction should go. I do 
not consider then h«« esi«ted such delaf on tba 
part of the plalnKIn as amounts to acquiescence; but 
the defendant* also rdy on the consent whidi has 
been given. No doubt, if this was established, thera 
might be considered enough to prevent the iqinne* 
tion issuing 1 but it lay upon the parties reljring 
on cooeent in this causey when some of the partief 
an abroad, to shew a daar and definite consent. I 
do not think the compaay have taken the proper 
steps presented by the Act to get possession if this 
land. The valuation vras not in oomplianee wijji 
the Act ; I must therefore treat it ae made for tbeit 
own iniiormation aierely. k appears pretty plain 
that the eoBi|iaii]r were not disposed to go before a 
jary if they coold possibly avoid doing so. The 
solicitor of the company seemed to think he sboiUc 
be required by the plaintiSa to go before a jury ; but 
this is net so. There is conaideisble discrepancy ia 
the details of eonvenation given by the respactiv* 
solidton^ and when this is so, the Court will not act 
on them. If I granted this iqjanction, I should bf 
doing great niMhief to the compsusr withoat any 
omresponding beneftt to the plaintiirs, by stopping 
grrat public works. All the plaintiSk seek ia com. 
pensation for the iiyurT to thiaiT pooaad. Thard^ 
not suffer any loss by the works gmog foiwand. The 
laad is laloahla far building-pound, aad the evi- 
denoe can ba given of this, although the raiiw^r ia 
made. I therefore do net think I ought to grant tb* 
iaioBCtion ander the drcnmstaocss of this cais^ 
when a great publis ii«ury would result on the pa* 
hand, without any coneaponding benefit ,on the 
other. I shall therefore adopt a middle course, mi 
say,— oo rule in this motion : the railway oompany 
umiertaking at once to issue thdr warrant for a jotv 
to assess daoMgas; plaintiOi accepting notioes, aoa 
the ooiapaav, havmg bees in the wrong, to pay the 
costs wbicb uvebeen inoorred, but not the costs of 
tba conversations batwesa the respective solicitonv 
or thair affidavits, whidi have been irregular on both 
sides, and neither party oaght to be visited with 
thenk ,. 

Friday, Ftb. 7. 
WoaaAU. and Win e. Warrs. 
Practice— New tolieitor — Right <ff former toUeitmt 
to have the ifaper* in the eaute produced at the 
taration qfhii eutt. 
The tolieitor in a caaie gam the papert to a third 
party to draw the billofcotti; the tolicilor died, 
and the tolieitor to whom the conduct qfth* eama 
wat then given obtainedihe papert from the third 
party, without paying the eotIt due to thtfirit 
tolieitor, or mMng any agreement with hit per- 
tonal repretenlative : 
Held, that by oautt petition or bill wat the proper 
mode of proceeding againtt tke new tolieitor t» 
cancel Mm to produce the deedt and papert for 
the purpott qf allowing tht eottt qfthefiret lolir 
eitor to be taxed, and that he wat bound to pro- 
duce them. 
Seroble, the tame retail might haee been Effected 
bv a motion in the caute. 

This was a cause petition, and prsjred that the 
respondent .should deliver to the petitioners aU the 
documents and papers he had received from a peraosi 
named John iCaUy, in order to enable the petltionon 
to have such costs prepared for taxation, the petf> 
tioners undertaking to return tiiem within a week 
after taxation, and the petitioners undertaking t» 

Sijr the sum of 7<. 10s. paid b^ the respondent to 
ellv. It appeared that the wife of the petitioner 
had Daen the widow and administratrix of a soltdtor 
named Bevan, who died in the veer 1848, and te 
whom in his lifetims a sum of 1,511/. 12s. lid. had 
become due for costs and advances in his capadty 
as solidtor for the plaintiff in a cause of TwHil T. 
RuettU, and that the estate about wlueh tliet eoit 
was conversant was the sole fund for the payr 
nent of the petitioner's demand. It also appeaie4 
that Bevan, pssvioualy to his death, bad giw 
the prindpal portion of his papers in that caose 
to a person named Kelly to draw a bill of the costs 
faicuned in carrying on the cause ; that at the death 

Digitized by 




[VoL 17.— No. 419. 




of Beraa a lolkitor named Carte vas appointed 
■oHotor; tliat the reapondent White, acting as his 
agent, had cot tlie papen from KeUf and jnid tiim a 
snm of 7<. 10s. which ue latter daimed as being dne to 
him for drawing the bi& of costs ; that Carte was 
only oontinned one month as the solicitor of Tnt- 
liiU, when he was changed, and the respondent ap- 
pointed. The petition stated the daUver; of the 
papers by Kelly to White to hare been made with- 
out the knowledge or aathority ^ Mrs. Beaten (now 
Mrs. Wonan). That on the 9tfa of Deeember, 1850, 
the petitioDen tendered to White the II. lOi. and 
imud a notice, requiring him to prodnce the papers 
for the ose of tlie petitioners in the preparation md 
OB the taxation of the costs, and undertakinKto pay 
sodi other costs as shoald be legally doe. To uus 
notioeno reply waa given. The affidavit in reply 
•tated fliat the papers were got firom the pUntin in 
the exdieqaer snit, and not irom Mrs. Bevan. 

Oru/iVm, Q. C. with W. SmUk, fisr the peti- 
tioneis. — The respondent holds these papers in trust 
fw the petitioner, whose agent Kelly was ; he had 
no anthoiity to give them np. 

Joikua Clarie and W.Brertto», oontriL— A peti- 
tion cannot be sustained except in eases in which a 
bill wpold lie, and if a plaintiirin a cause hand over 
tha papers to a second solicitor there is no founda- 
tion for contending that the first solidtor could main- 
tain a bill for the purpose of getting Ae papers for 
the taxation of his costs. [The Lord Chanccllok. 
•—Is there any case to shew that the solicitor can 
withhold deeds sod not produce diera on the taxa- 
tion ? I admit he need not part with tiie poeseesbn 
of them.] They cited Molttwortk v. BoHnt, 2 Jon. 
& C. 3ro, per Sogden; JTsttop t. Mttet^, 3 Myl. & 
Cr. 159; AtUltdft v. RutMfft, 2 Ir. Ex. Bep. 290; 
Baawes on Coats, 213. 

The Lord Chakcbliob.— If Bevan had even given 
np the papers to Tnthill I apprehend the latter could 
not keqitbem as sgatnst his solicitor requiring them 
for the porpose of taxation; and if IHitluU had given 
them to the respondent, the latter could not be 
placed in a better podlion than Tnthill himadf bad 
been, (nrhnf v. Howard, 2 Sdi. and Lef. 115.) His 
lien as a solicitor, and his right to oppose the intro- 
dndion of them for taxation, are diwrent tiiincs. 

W. SmUh replied. 

The LoBD CaAMCBLioB.— I do not loiow if a bin 
was ever filed in sucha case aa this ; but I see no objec- 
tion resting on anjr sufficient ground. It is sobstan- 
liallT for the secunty of a specific chattel. There is 
not in this oaae any remedy arising ttom tht relation 
of solidtor and client, nor could any relief be had at 
law; whe&er rdief might not be had upon motion in 
the cause is another question. It appears that Bevan 
waa the solidtor of a person named Tutfaill in a 
cause in the Bquit^ Ex.(a) when the costs wera 
bicnned ; it is the right of the soHdtor to secure to 
Unself die payment of his demand, and here is a 
fond against which he had a Hen, and which was 
available to him; bodies, and the right of the per- 
sonal representative is identical with the rights of his 
intestate. Tutiiill, the plaintiff, then emplovs the 
respondent, a person named Kelly being then in 
possession of the papns connected with the cause, 
and which were the papers of the first soUdtor aaif 
W»flPBdal property : these papers were transfened 
to White; It is not clear through what means he got 

V«/»amaAB«««aa ««# **- - ■ Wa>& !& 1_ _1_*_ ■ 

ten days ddirer to the petitionen all docnmenta and 
papers, &e. whidi he reorived from Jotu Kdly, to 
enable the petitioneis to have tiieir costs prepaured 
for taxation, and to vondi tiie same on taxation. 
The petitioning solidtor undertaking to return tiie 
same within ten days after Oie same dtall be taxed. 
The 71. lOs. to be set off against the costs of this 
petition, and let there be no further costs. 

poss e ssion of them, but it is pUin, as has been 
alleged, they were in the hands of Kelly, and that 
they were got from him on payment of 7t. lOs. ; but 
there is no antliority for asserting tiiere was any- 
tiiing like malafidt$. KeUy, at the time he handed 
the papers to Carte and White, waa the went of 
Bevan, and he held them subject to the same 
lien Bevan had upon them at the time of 
his death. The Question then is, what is 
&e position of a solidtor parting irith the papers 
in a cause in the absence of any special agreement ? 
I asked for such, but no evidence of any ureement 
was shewn between Mis. Bevan aasl Gate and 
White. It is the ease of a soUdtor in a cause, hav- 
ing costo due to him in i^ and being changed he 
abandons his lien upon the papers; but it is a dif- 
ferent thing whether he thereby loses his right to 
have those papers produced for the purpose of taxa- 
tion. If Tuthill would be bound at the histanc^'of 
Mn. Bevan to produce tiiese papers, and if that 
light also existed in Mrs. Bevan, it cannot be taken 
gray by any transfer, and that rirtt still remains 
radmg on the papers in the hands of Carte er of 
White, sod the petitioners have no means of making 
these costs available but bv the production of the 
deeds and papen. The rule appears to me to be, 
tliat hi the absence of any agreement, there is an 
implied understanding on the part of the person ob- 
taining possession of the papers to produce them for 
taxation. It is not pretended that Mr. White was 
employed to carry on the suit, or to realize these 
costs, nor is it said tiiat he has any lien; but he »ys 
he has no aecurity for the costs due to him. Mr. 
White's lights sre not disturbed by anything that 
has taken place here. Let Kdmnnd Wliite within 

^) ThiibruchafUi* Court has been aboUshad,! A 14 

0t«ltS CtMtt. 


Bspocied by J. Ma catoa t, Sm. of U>s laasr Tsopla, 

Mimdag, Ftt. 25. 
AnituUpfor life, or perpelMol—ConHmeUom. 
A ttttalor gm* A.B. on amtmlff iff 50f. a year, 
"for htr end her three ekUdrtn," and ^/ler ktr 
deeeaie, direefed " the money to be paid to each 
t^ them at they attained the ape <tf 21 yeart, M 
ff' eUher of them thould die, to be paid to the 
eurvitor. Tlie annuity htninp been held to be a 
charge on tht ttttatot'i real ettatt, a pieition 
oflerMiardt arose at to iti daratitm at regarded 
the three children : 
Held, that the gift vat a jnft ef to much money, at 
would, if ittvetted, produce an annuity of 50/. a 
year, md nol a mere annuity tf 50f. a year 
during the livet tf the children, and a turn luffl- 
dent to produce lueh an annuity wat directed to 
be raited out of the real ettate. 
The question in this case arose upon the consirae- 
tion of the will of the late William Hawkins, dated 
the nth of April, 1822, whereby he directed his 
executors, as soon aa possible after his deoesae, to 
let his freehold house, called tlie Red Lion, in Psrlia- 
ment-street, Westminster, atthdr option for 21 or 
31 years, "which tiiey might be able in proportion 
to gist the most money for." He tiien left to Us 
executors "all the money arisinc firom good-will, 
fixtures, plate, china, glass, and all other effects 
producing from his said freehold, and after all his just 
dabte were paid, tiien his executors to pot the 
money into the ftmds at the beat advantage 
for those whom he should hereafter name?' 
After making several dispodtions, the testator 
then gave "to Elizabeth Luckhnrst, of No. 20. 
Brook-stieet, Lambeth, Ml. per year, for abe and 
her three children, and after her dsoeaae the money 
shall be paid to each of them sS they attahi tiie am 
of one.and-twenty ; but if dther of tiiem die, to 5e 
paid to tiie survivor. In tlie next plaee I give all 
my remaining property to Mary Ann Ballard, what- 
ever it might 'produce dtiier from the rent of tlie 
bouse or mon^ in the fnnds ; and siie shall remain 
in the house tiU it is let, and aftec one year I wMi 
the house to be sold to the best bidder, and the 
money to be put in the funds, and[Mary Ann Bal- 
lard to reodve the produce of it, and tin money 
after her decease to be divided among her four 
children, or any more siie may have in myUfietime, 
share and share alike as they come to the age of 
twenty-one." The testator died on the 10th January, 
1823, leaving Elizabeth Lndchnrst and her tiiree 
children then surviving. Elizaiieth Luckhnrst after- 
wards msnied the plaintiff John Potter, and on the 
6th of August, 1848. By indentures of assignment, 
of May, 1844, and November, 1849, Henry Scarth 
became entitled to the interest of the tiiree children 
under the will of the testator. A suit had been in- 
stituted for the administration of tJie teabitor's 
estate, and it waa dedared on appeal reverting tiie 
decision bdow that tlie annuities, tec, were, by the 
terms of the will, charged on the testator^s frediold 
estate. A petition waa now presented by H«iry 
Scarth, the purchaser of the shaiea of the three 
children, praying that a snm sufficient to produce an 
annuity of SOI. a-year might be raised and pdd to 
him out of the real estate, or secured to him as 
directed by the will, and insisting that the an- 
nuity was a penetnal annuity, and not merely an 
annuity for the lives pf the three ehfldren. 

Turner, Selwyn, uid Wahffieli, for the petitioner, 
contended that the annuity was perpetual, and that 
when the testator had wished to give a mere annuity 
for life, as in the case of his daughter l^Iary Ann 
WisehMrt. he had done so in proper terms. Then 
the word " money" ms used aU through the will to 
designate eorput and not income; and there was no 
reason why it should not do so here. They dted 
Robinton v. Hunt, 4 Beav. 450 ; Stokei r. Heron, 
I2a.sndFfai. 161,3 Ir.Eq. Rep. 163; Vateir.Mad. 
dan, 16 Sim. 613 ; Blewitt T. Soberfi, 10 Sim. 491 ; 
1 Cr. and Ph. 274 ; RawKngt v. Jetmingt, 13 Ves. 
45 ; Ridgway v. Ifankittrick, 1 Dr. & Waft 84 ; 
Philippt V. Chamberlaine, 4 Ves. 51. 
S. AtUnton for the plaintiff, John Potter. 
X/oyd fbr the trustees of the will. 
Soupell and Falletf fbr die residuary legateea, hi. 
sisted thatjn the dause giving the annuitv of 501. to 
Elizabeth Luckhnrst and her three children, and 

after her decease direeting "themoner" tobeasid 
to each of tiiem aa they attained twenty-one. The 
word "money" meant merely the 50f. n-yesr; tlat 
is, tlie income, not the eorvut, out of wliieh it ii 
paid ; and that it waa mendy a lib annoity of SH. 
Tb^dted fntenv.ira(Uua«,2Y. andCCa 
372; HedgttT. Harpur, 9 Beav. 479. 

Tlie MABTBa of the Roixa said tbe ease nsi 
one in whidi diSerent persons would probably eone 
to different oondusiaas, and even thoae who suste 
come to the ssme eondusion might do so far af- 
ferent reasons. The testator had made hia will k a 

very informal manner, and though it waa not nn 
easy to constme, what he in ten ded waa dear. Ha 
lordship then eommented on the dilforent clsnsu of 
the will, and said the whole question here tarns m 
the meaning of the word " money," which it m 
argned on the one band was only 5W. • jtartotSk, 
and on the other that it must be hdd to ncaatks 
eorjmt, orthefnndprodudngttieaniHsitT. Movths 
money was money ansingftam tiie sale of the pnpsrtf, 
and to be inveated aooording to the directions of m 
will ; and, on the whole, his lordship waa of opisni 
that tbe testator meant the money wfaich ha M 
intended to be invested to p rodaee the an— H y . 

Monday, ITerc* 10. 
Far e. Far. 
Bteeiotr— Action at lam—8herif^WrU ffjLJk. 
—ti^mietian— Application in a eamm by aptnm 
■of a party to it. 
A neeiter wat i^fpobUed on the appHeatitneflU 
plaintif ooer soaw property, tfltrwthieh afLft. 
wat itSued agamtt tme iff the ttnamt o. Them- 
rif levied imd told, and oat ef thaprotetdtre- 
tained ti* months rtnt/br tm* faawsrrf sal^,s 
larger turn btina a ll e ged to b* dm*. TUtiam 
wat e laimtd by thi r sc siasr. The plainfjf elan 
ing to be the landlord, d e m ande d prnf r fal ef tbt 
r«U/rom tht therj^, and am tht ihn-jf niipm' 
ing it, bromghl hit action an the ease agtimi m 
tttriftorecootrU. The s*sry afpHiilttht 
Court in the aboot eaase, t ht mgi ma partyttit, 
to eoaqwl Ihtplaint^ to rfln sa Wa a s MsadiM^ 
he, the tharitr, contenting la pay tht i satyials 
cearf . Motion rffiutd witt eoste. 
Thia was a motion to stay aa aoliaa at law oi 
payment into oooit of the moaey aoaght to be le- 
covered in tiie action. It appeared tlM ia t)M erne 
of Newman v. Tttylor, wkicn wsa sa acfioa stlsw, 
judgment waa ob tained apinst Jassss IMtr, ■ 
tenant of certain property to which Jaha ny, Iha 
plaintiff (a tiiia eaaae, daiasstobasatidad; aadw 
dia 29th of Aagaat, 1810, Bjt.>. Ws l amm t m d 
lodged with dMshariff of Surrey. ThsshsnffMl* 
a levy under die writ, and after lasililai fcr tha 
eTpenses inoured, paid over die snai at «i. 9s. U. 
toNewman, the phuntiff at law, retsiina| SU. tha 
amonnt of six ■sonths' rent dne to dm landorl. On 
dw 26th of October, John Stokea, the reodrtr ia 
tile oaase, who bad been aspointed on anspi&a* 
tioD to the Court by the fdaintiff, John Fiy, gsie 
the sheriff notice that ha cWssed the money •• 
aiver. The plaintiff having also lisawaiiwl As 
rent bom the shanff, and the sheriff not uaiip h l a ft 
broaght an action at law agaiaat tha shvff Is 
eooMl payment; whereapon the Aeriff ttfikt t* 
tUsCoeit in the above caaae, to vrtiiohheassia 
party, to coaspel die plaintiff to diaoo 
action , he, tha sbsriff, dMag to pay the 

B I dtr t t m , tot the motion. 

TWner and HaU, eombA, said dio aetisa ass 
brouhtwainst die sheriff becaasa hehadpsidoMr 
4M. to. 6d. to Nswisan, dMogh he had aotiea ftsm 
the jdaintiff, Mr. Fry, who had got a receivsreas 
die property, that tha sum of 115/. waa das fe isaL 
and, moreover, the sheriff had sold valaalile laaiisiri 
(which, by the custom of diecoaatry, went with tht 
form) for a few shilUnn. The action ^^Mt ikt 
sheriff waa, then, (or UDdaiy and iUegally uinaHsg 
tlie writ. The plsintiff took possesdun in Jaaaan, 
1850, of the (hrm, and paid tbe tenant for laa 
manure^ whidi, thsrefor% sroald be his own |M. 
party, and now a stranger, not a party to tha casisi 
comes and appUea to the Court in tbe canse to rs* 
strain the plamtiff from bringing liia actaan. Ihsy 
dted Boct v. Coat, 2 Ph. «01, as ap|%ii« to ths 

Blderlon, in reply, said tbe caae of Roeh v. CM 
did not apply to tiua case. If tha receiver woddwiA- 
draw his notice hb dient waa willing to defend ths 
actionatlaw. Itvraaahardcsae.forMr.I^.haviagget 
arecdver, then brings an action to compel ths sheriff 
to do that which, by obtaining the receiver, he had 
deprived the sheriff of doing without a contempt of 

The Master of the RoLLa.— The sheriff is a 
stranger to tlie caaae, and a^ to be protected against 
therecdver, who, being served, does not appear 
here. It appeara tbe shoiff has not served say body 
in tlie canse, but asks to be protected sgaiast the 
reodver, to whom he must pay the money or be 
guilty of a contempt I cannot grant the motioo, 
but must refuse it with costs. 

Digitized by 


Ap&ii, 12, 1851.] 






Thurtday, Dee. i. 
Re Ths Norwich Yasn Company. 
Juriadictiott totder the Windmg-t^ AeU. 
■A elttitm earned <mbita creditor itfbre the Matter 
under an order /or tending tw a eomfumy teat by 
hine diealloieed, aid <m appeal, the validity of the 
debt being qneetioned, it urat hetd, that the Court 
had jttritdietion to direet an action at late to try 
the validity, notteithtlanding the poteen omen to 
the Cowrt and to the Matter* tinder the Winding- 
up A.etr. 

In this CMB tbe East of Eogluid Bank were oedi- 
°ton of th» Nonrich Yam Company to the amount of 
-35,755i. 2s. Sd. The Company waa established in 
1833, Mtd in 1847 ceased to ttade. Therhad kept 
■tbmr aocoants first with the Norfolk and Norwich 
J<nnt-StocV Bank, and afterwards with tbe East of 
"RnglMid, into which the former had merged. In 
1B47, ' tbey bad orerdrawn their aoeoant to the 
above •moon^ aad as they had dnwn.upon tbe 
'bank in an iofonnal manner, and not atnctly in 
•aeeovdjince with their fartoeiuiip deed, aa objection 
waa laiaad as to tba validity of tba debt before the 
Maator to whom the case Md been referred under 
•an order to wind up made in 1849, and tbe Master 
waa of opinion that the debt ought to be established 
■at law, aiid he disallowed the daim. From this de- 
cSaion the bank appealed, and the point raised was as 
to the jariadietion of the Comrt under the A^ndiag- 
'vnt'Acta to send a eaae to law, it being contended 
that the Ck>nrt was itadf bound to decide on the 
'Validity of tbe daim. 

BeiheH, it. Pabmer, and Cote, for the offidal ma. 
nacer, eontanded thattiie Masters had fuU powers, and 
were boond to decide on all matter* coming before 
them under the IK^dinc-up Act, which gave them 
power* that a court of law did not posaeu. More> 
over, tbe commoa law right to bring an action waa 
taken awa^ by the 78th section of the 12 & 13 Vict, 
c 108, which enacts that no action or suit shall be 
oommenoed or prooeeded with against the company, 
b«t after pioof of debt. It was therefore necessary 
to have a dedskm in this court first. They dted 
J T Ia aM isii V. The Utueereat Bahage C o m pan y , 
3 Ex. 10. 

Soineli and JBarft tot the oflSdal managers of the 

Yam Company. 

JValpole for certain shareholders of the company. 

TVriMr, for the directors of the company, re- 

ferced to 7/U Oerman Mining C o mp a ny , 14 Jnr. 

a74. < 

The MASTBa of the Bous.— If it wu my 
VmiMttn doty, aa is alteged. to five my opinion on 
tVe qjwartiwi of law ndsed in thu eaae. Imaattake 
aoaae tiane to consider of it ; but if, aa I think, — and 
way opiaioB is net altered by the very ingenions argu- 
■wnt put to me — it ia my duty, and it is within my 
province to obtain the asaislance of a court of law 
war tbe dateratinatioa of the legal question which is 
in issue between these parties, there i* no reason 
why I should now abstain from giving my opinion. 
In the admiaistration of assets by this Court among 
lanl creditors where the debt appears to tite Court 
to oe nleaiiy due, to be founded on fact satisfactorily 
psoved, sod nnm lepl principles fully recognised 
and eataMished, it is by no means neoasary, nor is 
it the psadioe or duty of .this Court, to send the ere- 
ditor to prove his debt at law. The Court, having 
the cae* properly befnre it, properly under it* consi- 
deratioD in the administiatian of assets, and having, 
aa I think tliere can be no doubt, jurisdiction to 
determine the question of dd>t or no debt, does so 
without unnecessarily patting tbe parties to the 
additloBal expense el a trial at law, and in this way 
debte to a vast amount, far exceeding the notion en- 
tertained OD the subject by thosewho have not given 
t h e m selves tbe trouble to obtain tbe necessary infor> 
I are constantly being proved, and being satiS' 

lied wittiont the parties ever being sent to a court of 
law on tb* sahieet. But if tbe i 

suit in which the 
pwreeJiug* tahe place depends wholly for il» vaHdity 
on tbe lecrd qnsstion of debt or no deb<^ and the 
parties intsirastcd to resist the daim desire that tbe 
matter should be tried st law, I Oiink I scarcely re> 
eoUeetan iastaoce in which the Court has rdbsed 
it4 and if the question of debt or no debt against the 
«RMe or party sought to be charged depends upon a 
MBiber M eircamstances, some of them of a compli- 
cated nature, and affected by tbe nsagea af trade— 
jAMted bv the power* which may or may not be 
Ivgally iaadent to trading partnenhips particulariy 
or peeuliarly constitatad; and, moreover, if the nlti- 
BMte result depends upon the decision of several 
ques ti o M s invcdving point* of law, some of them not 
waDaetUed, I emonve that althougb the validity of 
the whole proce e ding does not depmid on tbe parti- 
Adar daim, yet if those interested in lesistiDg the 
daim desire to have the question tried at law, 
this Court ouriit not to deprive them of their prtaMf 
JMt right to have the question so decided. Now, 
von the eondderation of the preeent ease, I am 
Ooatf of opinion that there are p<dnts of intricacy, 
<P>estiaDS of nicety in point of law, questioos which 
to IM, at least, on the oondderation of tbe questions 
that have been decided, do not appear to liave been 

perfactly decided. There are cirenmstances which ' Bowser became bankrupt. A bill waa filed by the 

indnoe me to think I ought not to deprive those who ' # /-•»— i— a« s — ^ t» -_ji.-_ 

redst the claim of that which I conceive to be their 
right, vii. to bare the legal question decided by a 
ImX tribanaL It appears to me, to use the words 
ofVice-Chancellor Knight Bruce, more proper to be 
tried at law than it is to be decided here. But no 
doubt, if the jurisdiction of the Court is ousted by 
the puticidar providons of this Act of Parliament 
then, however inconvenient, however likely to lead 
to some mistake or some misunderstanding, however 
hard on the party to be deprived of that jurisdiction 
to which the snoject properly belongs, it would be 
for me to perform, to the best of my ability, the duty 
caat upon me; and I ought to do so. Now, I have 
consideied the Act of Parliament with this view ; 
but it is nothing more than a proceeding for the 
administration of assets under partlcnlar drcnm- 
stanoes, and I am most deariy or opinion that there 
is nothing in this Act of FkrUament to deprive Qte 
Court ofavailuig itself of any means by which it 
can get the assiitence necessary to lead to a just and 
satiwtctory condnsion of the case. I think I had it 
once proaed on me, that the Solidtors' Act waa an 
Act of such a nature that I could not get assistance 
from a Court of Law; but the Court is not to be 
deprived of any mean* which the law allows it to get 
the best asdstance it can have. I say nothing about 
the argument whidi was urged warmly respecting 
the inconvenience of handing a thmg from one court 
to anodier ; it is for the Legislature to connder that. 
I say nothing about that part of the argument, well 
and wannly nned too, as to sending the snitor 
from one jurudiction to another, and there 
not being a jurisdiction in any one place to 
have a complete decision of the question, that 
is also for uie LegisUtnre. I believe, if I may 
be allowed to express a private opinion, that 
ranch may be done to lessen tbe inconvenience 
on that subject. Those who have to deal with it 
will find not so much difficulty in the court as in 
the habit of the country in havmg puticuhur juris- 
dictions allotted to particular cases, which arise be- 
tween .'parties. That we have nothing to do with 
here. I have only my duty perform, which is to 
consider whether under the consideration of this 
Act of Pariiament, though the legislature has given 
to the Master jurisdiction and power which he had 
not before, ana in this particular ease has limited 
him to the consent of the parties, it baa tied down 
tbe Court in the manner contended for ; and I can- 
not agree with the argument at to the Master's act- 
ing under the Older of reference which proceeds 
from tlia Court. T beg leave to say it is a great satis- 
faction to Uie Master that the order of reference does 
proceed from the Court, and that it is the jurisdic- 
tion of the Court which is ezerdsed ; and when the 
Master acts on tiiis he acts as assistant to, and in 
aid of , the Court, and leaves the matter altogether in 
the discretion of the Court in tbejiroper exercise of 
its jurisdirtion; and I am of opinion that in the 
exerdae of its jurisdiction I bare a right to concede 
to the partiea that which they ask, and that which I 
want for my own asdstance, the determination of a 
Court of Law on the qoestion of debt or no debt in 
this case. I wish to do it in a way most likely to 
contribute to complete justice bdng done between 
the parties here. If they desire to appeal from the 
opinion I have now expressed I must do it sdversely, 
that they may not be prevented from having an 


rcaiiiiO* xwxoB* 


Bepoiiad by Oao. 8. Ai.unin, Bsq. of the Iliddla Tsmpla, 

Tneiday, Not. 12, 1850. 

GOBB *. HAaBI*. 

Partite — Creditort. 
An attignmtnt teat made hy W. S.firthe benefit 
t(f hit creditort, but by the deed protition teat 
made for the payment nf a lien qf H. One 
iruttee died, and the other (J. B.) became banh. 
r^t. A creditor t^ W. 8. filed a bill againtt 
J. B. hit attiftteee, and H. tp let aiide the died : 
Held, that it teat neeeetary that one or more iff the 
eredUor* who had executed the deed teat or teere 
a ntcntary parly or neeeetary partiei to the 

By a deed dated the 20th of April, 1841, and made 
between William Saunders, of the first part, Charies 
Gore and John Bowser, stated to be two of tbe 
creditors of William Saunders, of the second part, 
and dl the other creditors of William Saunders who 
should execute tiie deed, of the third part, William 
Saunders assigned and conveyed all his property to 
Charies Gk)re and John Bowser, npon trust to con- 
vert the same into money, and then first to pay Mr. 
Harria a sum of money in respect of a lien on some 
part of the property, and afterwards to divide the 
reddne ratealbly among the creditors. The sdd 
Charles Gore, who was a creditor, never executed 
the deed, and died on the 21st of April, 1841. John 

executors of Charles Gore against Bowser, and his 
assignees, and afterward* a supplemental bill was 
filed against Harris, and it was coarged, among other 
things, that the sum proposed to be paid to Mr. 
Harris would very nearly exhaust the produce of tbe 
property; that Harris had no lien, and that he had 
acted improperly with reference to the preparation 
of the deed ; ana the bill pnyed thatthe deed might 
be declared void, and that Mr. Harris might pay the 
costs of the suit. By his answer, Mr. Hams sub- 
mitted that the creditors who had executed the deed 
ought to be made parties ; and upon this objection 
the cause was set down. 

Htutell and Speed, for Mr. Harris, dted, in sup- 
port of the objection, Netelan v. Lord Egmont, 
4 Sim. 585 ; S Sim. 130 ; Poire// v. Wright, 7 Bea. 
444; and Smart v. Braditoet, 7 Bea. 500. 

Stoaniton and Moton, for the plaintifis, contended 
that tbe creditors were snfficiently represented by 
Bowser and bis asdgnees, and that Harris, though 
not strictly a creditor, was interested in supporting 
the deed. Beddes this, the large interest which 
Harris took tmder the deed rendered it to be the 
interest of tbe creditors that tiie deed should be set 

The VicB-CHAKCELLoa sdd that this was a bill 
to set adde a deed made for the benefit of creditors. 
One of the trustees was dead, and the other was 
bankrupt. Mr. Harris could not, he thought, be 
taken into condderation in this respect, as be had 
not executed the deed as a creditor. He thought 
that the creditors, or some or one of them, on^t to 
be parties or a party to tbe suit, though he did not 
say how many. lie could concdve a case in which 
one creditor would be better than any other number. 
The creditors mus^ however, be substantially repre- 
sented. On prindple, and on authority, he con- 
ddered that in a case hke the present the creditors 
should be represented. He should, therefore, declare 
that one or more creditor or creditors was or were a 
necessary party or necessary parties, and reserve the 
costs. ___ 

Not. 12 and 13, 1850. 

Attobnbt-Ginbbai. v. The Great Nobthbbn 

Railway Company. 

Injtmction — Seqtiettration. 

An injtmction teat granted againtt a rattteay com- 
pany tehen their railway wat in courte of forma- 
tion to reetrain them from further interfering 
leitha certain road, mdfrom eontfrueting the 
teorht ef their railway, whereby the road thottld 
be obttrtuted, impeded, or rendered leu tecure, 
tfc. or whereby carriaget or pattenger* thoutd 
be tendered or prttentedfrom patting. Ice. The 
company q/terwarde laid their permanent railt 
over thit road on the level, and by the direction 
qf the Railway CommiteUmert erected gatet 
acrott the road for greater eecurity, and teith 
the lanetion qfthe Commiteiotieri opened the line 

Jbr public traffic : 
Held. (■ • 

. that the company had brohen theii^unctiont 
end the Court directed a lequettration to iitue 
againtt them, and rtftued to lutpend the ittuing 
0/ the procett ttntil an appeal from the order for 
a eegueetrttlion had been heard. 
This suit was instituted npon the rdation of Mr. 
Chapman, a solidtor at Biggleswade (see ante, 15 
Law T. 362), and an injunction was granted on the 
2nd of May, to reetrain the company, " their agenti^ 
workmen, and servants, from farther interfering with 
the turnpike road leading from tbe entrance of tbe 
London rood, at the south-eastern dde of the town 
of Biggleswade, dong a road called Crab-lane, to 
the end of Sun-street, in the same town, being part 
of the high road from London to York, and mm 
construcnng the works of the Great Northern Rail- 
way whereby the same road should be obstructed, 
impeded, or rendered less secure or safe for the 
passing and repassing of carriages and passengers 
thereon than the same was when first interfered with 
by the company, or whereby carriwes or passenger* 
ibould be hindered or prevented from pasdng and 
repaanng in the same way u they had been aole to 
do theretofore." 

JSacon and /. T. HamOion Sttmphreye taoni 
for a sequestration against the company for a breach 
of this iqjanction, the company having hud their 
permanent nil* over the road on the level, erected 
gates acroM the road, and opened their railway for 
public traffic 

Wigram, Malint, and Dmuon appeared for the 
company, and contended that there had been no 
breach of the iqionction. The company had applied 
to the railway oommisdoners for tbeu- certificate as 
required by the Act of Parliament, and in the mean- 
time they had tsJien the best steps in their power to 
prevent the danger apprehended from tiie railway 
crosnng this road on Bie levd. The injunction re- 
ferred onlr to such an obstruction as would render 
the road impassable or dangerous to the jrablic 
The railway oommissioners had required, for the 
safety of the poblic, the erection of the g^es across 
the road whicb were now complained of. The com- 

Digitized by 




[VoL W. — No. 419. 




misnoners of the roads had concnrred in the acts of 
the company, and Bfr. Chapman waa almost the only 
penon vfao compUoned of what had been done. 

Tuetday, Nov. 12. — The Vice-Chancbllor 
aaid that the motion on the part of the informant 
and plaintiff which he had to dispoie of in the pre- 
sent case was made on two notices, one dated the 
Slat of July last, and the other dated on the 29th of 
October following, and asked that a sequestration 
might issue agunst the company on the ground of 
alleged contempt. The first question raised by it 
was, whether a Dreach of the ininnction granted in 
the cause in May last had been wilfolly committed by 
them ; as to which it might be at once stated to be 
perfectly clear that, if the injunction had been 
broken by them, it bad been broken wilfully— that 
is to say, with direct and full notice of it and in dis- 
regard — perhaps it might be said in defiance — of 
the plaintiff's warnings and remonstrances. That 
both on the 29th of October and on the 3l8t of July 
last the company by their agents or serrants were 
obttrocting or impeding the tompike-road called 
Crab-lane, and if not rendering it less secure or 
Mfe for the passing and repassing of carriages and 
passengers on it than it was when first interfered 
with by the company, were at least hindering or pre- 
TentiiH; cairiages or passengers ftom passing and 
npassing in the same manner as &ey had theretofore 
beien able to pose and repass was a matter tree from 
donbt, and a continuance of the sameoourse ever since 
miaht be inferred. But, nevertheless, the defendants 
Iiad contended that the iqjnnction had not been 
woken, their groonds for that contention being, that, 
aa they said, the injunction was not mandatory, as 
^Btingiiislied &om what was merely prohibitory, — 
mat their tails, laid, in fact, on the turnpike road in 
question, and crossing it, were so laid, and did cross 
it when die injunction waa granted, and before that, 
whatever might be the state of things when notice of 
the motion on whidi the injunction waa gnuited was 

Siven ; and that the actual interference and intended 
ealing with the turnpike road, which the informa- 
tion and bill attributed to the company, were 
different in purpose, different io oMect, different in 
manner, (ran any actual or intended doling with it, 
which the informant and plaintiif dleged to be in 
breach of the injunction. The defendants relied 
also on certain proceedings by and before the Rail- 
v«y Commissioners, who were represented to have 
directed or sanctioned the creation of certain gates 
oomplained of, which gates, it had been said, were 
essential or material for the protection of the lives 
and limbs of men and cattle, aa the railway in its 
actual state, whether by right or wrong, crossed tlie 
turnpike-road on a level. Whether vae iiyiuiction 
in substance and effect contained anything manda- 
tory as distinenished from what was prohibitory 
maiely, he did pot think it necessary to decide, and 
bedeoiioed stating any opinion; nor need he say 
whether the informant and plaintiff was entitled, on 
ftis motion, to refer to the state of things which ex- 
isted when the notice of motion was given upon 
which the iqjunction was granted, as distiBgaished 
from the state of things existing when it was actually 
nanted; for when it waa granted the rails were, as 
Bis Honour nnderstood the frets, used only for pur- 
p«MS oonnectad with the construction of the iwlway 
and not for the conveyance of passengers or goods, — 
not for wbi^ in the language of the business, was 
oaSed "trame ;" but tlie rauway having been opened 
fi>r public use in Augnst of the present year, the 
oompany had sinoe employed the rails in Question 
for purposes exceeding, and in a aeose differing 
from, those for which they previously employed 
them; and -it was, be thought, clear that obstruction 
w impediment t« the free use of the turnpike-road was 
thue caused to s gieater extent— an extent materially 
greater than at the time of granting the injunction, 
and, in a sense, differmtly, aad this independently 
of the gates, — that waa to say, aa the case would be. 
even if those gates were removed. But the gates, 
however neoeasary or valuable they might be— and 
very likely they were— for the purpose of protecting 
life and limb against the proceedings and conduct of 
the company and their agents, did, as it appeared to 
Mm, in the saaae in which pbinly ^e words 
"obstructed," "impeded," and "hindered." were 
oaed in the ininnotien, obstmct the turnpike road in 
9ieatian,— did create, in the clearest aad most direct 
manner, such aa impediment and hindrance as the 
injonctioo, whichever way considered, had plainly 
forbidden; and thoae gates, at least, were certainly 
within the cognizance of the Court on the present 
oocaaion, and would be so were the motion of the 
29tb of October out of the case. If it were said, as 
it had been, that the effect of removing the gates 
would be to create a state of general danger, the 
answer was that the railway ought to bo stopped, 
inasmuch as it wss passing lUegdly across a road, 
the lights over which it was the office of this suit to 
OToteot. With respect to the argament grounded on , 
the language of the information and btU, it might i 
possibly, though it did not in his opinion, furnish a 
reason for varying the injunction; but upon the' 
question whether the ity unction bad been broken, it ' 

seemed to him to have no place. Hie injunction 
prohibited not merely obstruction of any particular 
kind, not obstraction with any psorticalar object 
merely, but obstruction and impediment. A man 
had a rirht of way; his neighbour obstructed it 
wrongfully, and this for a pnrpose dedared, and in a 
particubr manner, the purpose and manner being 
as to the person entitled to the right of way of 
secondary or immaterial consideration, the mere 
obstruction being that about which he cared, and 
was concerned, not becaure it was with this view or 
that, or in one form or another, but becaiue it waa 
an obstruction. Thereupon he obtained an injunc- 
tion, not against an obstruction actoated or shaped 
thus or thus, but a^nst obstruction. Upon this the 
amessor, finding it convenient to interfere illegally 
with the right of way for some otiier pnrposes, to 
obstruct it wrongfiitty for some other object, and to 
create a wroogftu obstraction in a new shape, did it, 
and then insisted that, b^ the change of sbiu>e and 
purpose, he was clear of'^ the injunotioo. This vras 
an attempted view of the law iriiich waa not wboHy 
perhaps new; but whether new or old, was one 
which certainly his Honour must decline adopting. 
With respect to the Railway Commissioners, his 
assumed that they sanctioned the opening of the 
railway in August for public use, and did so upon 
the condition that the defendants should erect the 
gates already mentioned. But if the Commissioners 
could, by any order or act of theirs, hav» rendCTed 
the defradants* present use of the turnpike road, or 
mode of dealing with it, ftwfiiil, against the rights or 
interests which it was the obJMt of tins suit to 
protect, they had not been proved to have dbne 
so, or to have professed or intended to do so. 
His impresson wss, that the case before him waa 
not in the least degree affected by any thing that 
they appeared to have done. Giving no o^nion, 
tlierefore, as to the extent of their powers, he 
thought that the part of the case concerning tiiem 
mi|;fat be dismissed from consideration. It appeared 
plain to him that Hbe company had broken me in- 
junction in letter and in spirit ; that they had dona 
so contemptuously, and that they must be taken as 
still pursuing the same course. Then oame the 
question what, if any thing, the Court ought to do 
in consequence, because it did not necessarily fellow 
that the process asked must issue. It was upon tlie 
defendants, however, to make a case to exempt 
them from it ; and, perhaps, if Hiey had shewn thor 
proceedings not to be plamly and dearly illegal— 4ie 
meant illegal, independently of any question of con- 
tempt — or had satisfied the Court that the iiqunctien 
ought not to have been granted at all, or ought to 
be dissolved, dischaiged, or pnt into a shape more 
favourable to them than it was, or had st^ed tiMt 
they had appealed firom it, or from the orda graoiiiig 
it, or intended to do so, he mi^t have decGned or 
delayed allowing the process to go. But none of 
these things had they done. On the contrary, his 
belief was strengthened of the utter impropriety, 
without any reference to the injunction or this tm, 
at the sets alleged to be also a contempt of this 
Court. His opinion was more fixed that the in- 
junction, instead of gohig too for, did not go fur 
enoagb, and that it was one of which the company 
could not justly complain. Considering their con- 
duct to be at once contemptuous and otherwise 
illegal— to be wrongfiil as against the plaintiff indi- 
vidually — wron^ul as against her Majesty's subjects 
at large, and, indeed, « bad — he had almost said 
scanddons — example, whatever amount of incon- 
venience might result from acting against the com- 
pany on this occasion, he thought it right to deal 
with them aacordiiig to their merita. The o*naa- 
queues might posriwy be to stop the railway. He 
answered again, tiiat it ought to be stopped, for it 
passed where it did, by wrong. The directors of the 
cominny, their agents and servants, could not on 
this motion be committed to prison ; but what could 
be done, should by him be done, to repress this 
daring invasion of public and private rights— an in 

quenee of a breach of that injunction. He had not 
heard any irgnraents that induced him, aa ftr as hii 
judgment waa canoemed, to doubt the pmniitti of 
that iDJnnetton. The real question appeared to tiia 
to be one to whidi he addrnaed himwlf in disposi» 
of the matter as to the breech of the injuBClioB; and 
the argument to vrhieh be had adverted waa this : a 
right m way was the anbjeet of wrongfU interfsreim 
and unlawful obatniction, and thereupon » Court gf 
Equity interfered by injunction to reatrain obttne- 
tion, not obstruction of any particular kind, for that 
would make aggression and litigation endheas; hit 
obatniction, npon which the aggressor iihanged Ibi 
comae, and addressed himself to an obafarudisa 
eqaally wrong, equally lawless, and said ttat he m 
entitled to do vriiat he bad done, and that the in- 
junction ongfat to be varied in order to be pbeed ii 
a shape which should protect the plaoatiff only 
from one mode of obstraction, lening the it- 
fendants at liberty to ex e r cis e an endless vanty 
of oppression. To ttat argument hia Hsi»» 
dedned to accede. He was of opinion dal 
the injunction had moat plainly been br o h en. He 
had heard everything wat ability oooM ing^ kt 
beBevad, in support of the present motaoa far 
delaying the iasne of the process of siKiiaiitisllw; 
behad neardnothingin (hvoorof it. If it wastes 
it mat be done by some other hnisAotion than Ul 
He thought this a caae in which not msady At 
pnUic Interest, represented bytfae Attmiey-OaanI 
on this record, not metdy the private intrisstaf As 
plaintiff, but the interests of all theOaeeo's u a tjut l 
at huge, were canoemed. It was a matter is ^nUk, 
in Irisopinioa, tii^open eonae of jnsliae waadaisi 
There waa no reason for the Courrs intarfavse, ■ 
his jxidgmant, whatever might be the aDsnolif 
inconvenienoe sustained by the oom p a aj . As lis 
informant and phdntiff was willing to wmhita bittst 
the proeesa sbonM not be exeented for tea dan ^ 
should refaie this motbn wilfa coats. 

ntudag, April 1. 
Mr parte HAMan, iw Th> St. Qmowma^Smim. 
Fackit Coufant. 
Joint-ttoek Compemiet Windin^ap Jtlt- 
A,, tke holder qf tome tkaret in a Joint i l ut tim 
pony, by hi* mil, devind kti real esMr It A, 
and made C. hit execntar, and died sa 18M. £, 
for tome ptart tjler A.'t death,' rtttitid lit 
dividendt on the thare*. The cemptMiwmm- 
dered U be woundup, and C.'t wamweifalat 
the Htt qf eontrOutoriee. It haeiai Im m imw 
tented by C. that A.'t pertonal <aM( W IM 
duty adminittertd, the Matter put B'tamtm 
tie Net ef eomtribateriei at the detiete^A. K 
iM« admitted that aU the debttduefrom lit em- 
pony at the time qfA.'t death had been MffU 
in a regular manner out qf the aeeett ^Utttih 


that B., aedtviue, wot not BaUe ott tea- 


James Hamer was a hdder of tweuly •five diirn 
in tiie above-mentioaed company. By the dssd of 
settiement of the company, dated Deoemher iH 
1833, it was declared that the company abooM eoa- 
tinue for ninety-nine years, and that the sltarshaUn 
should be entitled to the profits, and KsAle ts tke 
losses, in proportion to their shares, James ITiw, 
hj his win, gave and devised aU his real cslatsta 
his wife fbr her life, and, after her dearth, unto Us 
daughter, the vrife of Joshua Rawdon, her heirs, arf 
assigns for ever; with a direction that hia dasghtv. 
her heirs, and assigns, should, after tiie deceusof 
his wife, pay one-half of the profits thereof to bsi «» 
James Hamer dnring his life. The testator s ypuiu t rf 
hiswifeand daughter his executrixes, ThetestaHrdM 
in October, 1838, and his will was proved by UscRse- 
trixes. For some years after the death of die lustsW 
Mrs, Hamer received the dividends dedared eaibt 
i shares. The names of Mn, Hamer and Mr. aadlfn. 

vasion mamtsined, moreover, in open defiance of I Rawdon were put on the list of contribatoriea by 

Master charged with the winding np of the ( 
as the personal representatives of Mr. Haner, wa 
testator. Mrs. Hamer died in April 1890, SM is 
August in that year an aiBdavit was fifed by Mki 

all law, authority, and order. The sequestration 
must issue. 

Wtdneedav, Not. 13. — Wigram, iMinr, and 

/><niton, on behalf of the company, moved that the. . , , , , _ 

proceedings under the order of sequestration might and Mrs. Rawdon, shewing that tiie personal 
be suspended until the appeal from that order, notice 'of the testator, Mr. Hamer, had been exhavted. 
of which had been given, should be disposed of. The : The Master having placed the names of Mr. sal 
issuing of the sequestration would be attended by Mre. Rawden and Hr. James Hamer, the son, «a 
very great inconvenience to the public, and posaiMy j the list of contiributoiie* as the devisees of the tasta- 
the Court of Appeal might take a different view from I tor, this was a motion by way of app^ tmn US' 

that of his Honour. They referred to the 53rd ' • ■ ■ - • • -n . . 

section of the Lands Clauses Consolidation Act, and 
dted the case of the ManeAetter and Sheffield Kail- 
way Company, where an order for a sequestration 
had been suspended. 

The Vice-Chascbllo« (without calling on 
Walter, Bacon, and /. T. IT. Humphreyt, who 
appeared for the informant and pfauntifT) said that 

decision. It was admitted by the official 
that there was not then due any debt of the < 
wUdi was due at the death of the testator, and (hat 
an the liabilities, in respect vrhereof oootribnttoos 
were then sought, had been incurred by the osmpaay 
after the decease of the testator, 
Malini and Huntpkreyt, in supportof the metkm, 
^. , referred to 3 Wm, & Mvy, c, 14, and dted ITshaa 

the injunction in question was granted after argn- , v. JTubley, 7 Bsst, 128 ; and Farley r. Briant. SAd. 

ment m May last, and had never been sought to be ! & EH. 839, wMeh were cases under that statute, aa* 

discharged or varied until after flie making of an , also referred to tiie statutes 1 Wm. 4. c. 47, aodlha 

order m November for proceu of contempt in conse- 3 & 4 Wm. 4, c. 104. 

Digitized by 


A»Mi. 12, 1851.] 






Baeom and /. V, Prior, tttr the compaoy, dted 
Mer— V. ntelur, 5 Hare. 79. 

The Vio-Chahcbliar (without emlling for * 

reply) said he thought it licht to asimnethat neither 

tne debt* nor the liaUHtMi wliidi mbiisted at the 

iiiB« of the testator's death, now existed, and also 

that tbey had been disofaaitted, not by payments 

made by any panon in Ute efaaiBcter of surety (for 

tf that wme so Uiey might be considered as in a sense 

■tiU sdive), bnt thit they had been discharged in the 

illgwliii and ordinary way out of the fdnds whlrh 

■ sp tiiu regnlariy, property, and primarily applicable to 

fiufar payment. The liahUity now in qoMtion coald 

■ot taa^e beea established in ao action. The whole 

(OMitioa arose npon the statute law— the 1 & 2 

^m. 4, c. 47, the 3 & 4 Wm. 4, c. I»4, and the 

Joint-Stock Companie s Winding-ap Acts— which 

alone gave rise to the equitv wUdi might arise. 

He aaTB no opinion how me esse would hare 

-atoodif Oe Babiiity in qnettion eeold have been 

.aitabHabed in a coart of law, or oonld hare been 

property made the snhject of an action. The 

^aiaalion was one of intmial liability, that was, 

of eontribntion. It was not a qoestion whetber 

the devisees ware or wire not lisUe to any pro- 

■ ramllngn bv a creditor of the company as sach 

araditar. The testator died so long ago as 1838, 

J lAlch the aroentrizes for the time being had 

1 admiltrri as faoldera or proprietors of the shares 

' in qauuliuu, probably inlheir representattre ehaiac- 

' tar, bat stfll as proprietors. Besides this, for yesrs 

aftei a ai da the company was treated as solvent— -that 

was, aa having mere tban-snffieient sssets for the 

aayBCBt of tfanr debts; forprafits had been received 

syihe emcatrli for toe time being from time to 

"Ifaae for years after the testator's death. It was 

.gAar this Icnivth of time, and this coorse of pro- 

aeading, tbat tlie memhers of the company who thus 

dealt with the eceealrix, came forward and stated 

'ttat the devisees (wito had no control over the 

' ibaies, and had received no benefit whatever arising 

from them, as they were personal estate), were 

liable. Hisl l uu oui 'was Of Ofiaion that it was not 

•Cara-ooort of CMpdty, at tiiefar instance, to establish 

•DCh a liiAQity. It was o^ upon equitable con- 

•eidemtions, properiy bdoaging to soch a case, that a 

MU oonld have been ''Med, and, if it had been, it 

Ewoold probably have been disioissed. He was of 

opinion that tbe appdlaats eeoM not be placed, in 

'■■■etsr of aerisees, on the list as contribu- 

All parties most have their costs ont of the 

.. -His HonoaT' added that he doubted very 

t •whetber the groimd npon which be pat his 

indgment bad been submitted to the attention of the 

▼.«. X>aa» CBAWOB.TK'S OOUKT. 

AportMl kr W. H. Bansr, liiH.«fMaialiif»iaB, 

)(iToa>u.aad Uz. a. Coaa. 
! Act (11 4< 12 'Viet. e. ge^-rPoymrK mlo 
court tmdtr. 
p trmttet of a ttltttmunt paid into eouri 
<sasd(r Ae Trurtet Act, a nm ofl66l. 19>. lid. 
aviUeA was M« prodmte of one-eigMh part tfa 
■mm ^ttook, wkiek tloek.m thedtaih of A. B. 
■war diaMe/e aaMN^ etrfoia partiet, to one- 
•etoMA ofteUeh tin pittnttt* «>if* «"» tnttfled .• 
Sanible, t/ItU Mi* «>oaM Aaoe teen a hrtaeh nf 
*mft on Ike p*rt of the irmtee if the partitt'httd 
<n9tgioen him on anihorHj/, ejmreit or implied, 
4o toll Ihettoek, The inmtee had not paid into 
eomrttt e mail ttmn/fll. 7*. doing the one-eighth 
Of a dividend in theetooi to vhieh plaintiff woe 
•aleo entitled: 
Mold, that a/lhongk Irmteee were iomd topofrinto 
court the whole of the truetfmnd, yet, ai the reten- 
• Hon qfthiiemaUium wa* not made the ground qf 
oomplaimtaaainttlhe truetee, nor wot the quee- 
diaa raised Sy the MU, ike plainer t Wl -muet be 

"His was a blU filed to have it dedared that-ttie 
daisBdsot Cobb, ti>e -surviving trostee of a marriage 
■BtOement, was boand to-ieiHsoe a sum of 187/. lOs. 
H. par seals, (being die 'pWntifrs'Wife's one-eighth 
aiisse of a sum ef l.tOM. Ke stock) sold ont by him, 
-and to payihe share of die dividends dne; that it 
•aigfat be decreed that he should repfaioe that amount 
of <stook, and transfer that stock when purchased 
toiOa pteintift, and that the trustee might pay the 
aatli. On tiie death of one Chsries Dixon, in 
Oetsber IMS, the sum ef l.SOO/. stock became 
disidble and transfeiable in one-ehhth shares, to 
one lof -which the phdntiff andhis wife were entitled, 
mdasom of stock was a portion of a stQI larger sum 
vaHact^otbe-trasts of the-settlement. A good deal 
atf aotm p e iid eaee took plaoe after the death of 
ZNnm as -to'Mie best mode of satisfying dl parties 
bd eiea ud ander the settlement, and a letter was 
^wiiltan by the pbinMft' soUcitar (who was also 
beneficially interested :in the trust funds) to one 
«( the defendants, a sorviviag ezectttor Of Mrs. 

Dixon, in the following terms :— " S Dec. 1848. 
Sir, — I am surprised that I have not heard 
from you respectingthe distribution of the fund 
under Mr. Charles Dixon's will. As the transfer 
books close on the I3th instant, I hope no further 
delay may occur in tellinp out the itoek, and I shall be 
glad to hear iVom you m a da^ or two." All the 
other parties entitled, were willing that the stock 
should be sold ont, and the proceeds divided amongst 
them. In January 1849, the defendant Cobb ac- 
cordingly sold out the stock, which produced 1,3352. 
I9s. cash, and received a sum 261. los. lOd. as a divi- 
dend due thereon. All the parties entitled to the other 
seven-eighths had been paid their respective shares, 
and had accepted the proceeds of the stock in satiafisc- 
tion of their daims. As difficultieahad arisen as to the 
title of the plaintiff's wife to the one-eighth share, 
who derived it under a power in a will made by a 
married woman, the defendant, on the 22nd of Jan- 
nary, 1849, paid to the Aocoontant-General, under the 
?rovi«ona of the Trustee Act (as above), the sum of 
66/. 19s. lid. being one-eighth of the stock to 
which the plaintifis claimed to be entitled; and 
tiierafore, the defendant's solicitor wrote to the 
plainttffs' solicitor informing him of that bet The 
trostee did not deduct some legacy-duty which he 
aliened by his answer was payable m respect of this 
fimd, nor did he deduct anythiiu in respect of coats 
or expenses, but he retained in his hands \l. 7s. 4d. 
the one-eighth of die dividend which he admitted he 
held in bis hands in trust for the plaintjffs if en- 
The cause now came on to be heard. 
Bethel! and Cole iot the plaintiffs, contended that 
the plaintiffs being clearly entitled to receive the one- 
eighth share of the trust fond, it should have been 
transferred to them at once, without any sale or pay- 
ment into court ; that the realizatioo of the stock 
without the plaintifls' express consent was clearly 
improper; and also that the trustee was not dis- 
chaiiged, as he had notin &ct paid in tiie wholeof tlie 
trust fund, but bad retained a part. 

Bolt and WtUeoci for the defendant, ni^ that 
the trustee bad a clear right- to pay into Court, undo- 
the Trustee Act, any trust fund, whether there was a 
donbtfol title to it or not, and thus relieve himself of 
all responsibility; that what had been done by the 
trustee in the present case, had been done with the 
ooosent, exprMsed or implied, of the plaintiffi^ and 
they could not now be heard against that.airaoge- 

Bethetl, in r^dy.— As to the fsct of a bBl being 
filed, and not a potion under the Trustee Act, said 
that if it had been by petition, all parties interested 
in tiie whole fund most have been served, and thus 
created unnecessary expense ; that it could not be 
sdd the fund had been paid into Court under the 
Act, when it truth it was no part of the fond itself, 
but its prooeeds which had been paid in, and which 
was not warranted by the Act; and that what was 
p^d in was so paid in in a wanton way, and not the 
whole amoimt to which the plaintifla were entitled ; 
that although small the amount, the principle that a 
trustee must not deal with a trust fond as he likes, 
must prevul. The fund now in Court being lost, is 
unproductive, whereas if it had been the share of 
stock it would have produced jts dividend. 

Several cases were cited; the principal ones were 
Knight v. Cawthom, 1 De Gex & Sm. 714 ; Dome 
V. Dame, 4 Hare, 369; WUeou v. Wibon. 15 Sim. 
487 ; Eno v. Eno, 6 Hare, 171. 
At the close of the argument. 
The YicE-CaANCBU.oa said, he thoupbt with 
Ijord T«"g^»l» that although much mischief might 
possibly ensue firom the Act, yet that a trustee was 
entitled to come in under the Act, and pay aqy trust 
fund into Court He said, in the present case, no 
doubt the plaintiffii were entitled, unless the surviving 
trustee had done some act to discharge himself. The 
defendant savs he discharged himself by selling out 
the stock and paying in uie sliare of the prooeeds 
under the Act of Parliament, but he was clearly not 
justifi^ in converting the stock into money, unless 
be was authorised by the correspondence. Now, if 
in the correspondence there is such authority, the 
plaintiff must iisil in his dum ; and if no authority 
there was great force in the aigument that a trustee 
must pay in the fimd itself, and not a part. He said 
he would read the pleadings and correspondence, uid 

defer his judgment. 

Bttturdag, March 29.-1116 Vice-Chance llok. 
— The question is, Whether a trustee was justified in 
payine into Court under the Trustee Relief Act 
10 & II Vict. c. 96, a sum of money the produce of 
187{. lOs. Consols. The grounds upon which it was 
contended that such payment was imiiroper were 
three : first that there was no difficidty in the ease, 
the plaintiff being plainly and simply entitled to the 
fund, and in a condition to receive it; secondly, 
that the Consols ought to have been transferred and 
not sold, the plainw beioz entitled to the fund in 
'specie ; and lastly, that flie trustee was not dis- 
cnanied, inasmuch as he had not in tuA p^d in the 
whote trust fond, but had omitted to pay In -• sum 

of I/. 7s. a proportion of the dividend he had re- 
ceived before the sale of the stock, which was a part 
of a larger sum in which other persons were in- 
terested. Now he, the Vice-Chancellor, must hold, 
upon the construction of the Act that the question 
whether there was or was not any difficulty in the 
execution of the trust, was not a point open to any 
ceetui que trutt to take, and that a trustee having 
fonds in his hands wss at liberty to pay them into 
court if he were so minded. Upon the second point 
which was a question of foct whether the trustee 
was aothorised to sell die stock or not, he was'of 
opinion, upon the evidence, that the trustee had an 
implied aothority to do so, upon which he was Aurly 
justified in acting ; and upon the third point, whether 
tlie payment was defective by the omission of tdbe 
dividend, his lordship said that that might be so if 
that had been the ground of the dispute between 
the parties on the smject of the dispute. A trasiee 
papng funds into court was bound to pay in the 
whole, aad not retain a small sum which tM portlea 
might have no means of recovariag ; bat in the pie- 
sent case the attmtion of the denodaat had not 
been called to Uiis point and it was mt a pofait 
raised by the bill. If this oomplaint had been 
made, the trustee would have been bound to remove 
the objection by paying in the remainder of the 
toad at his own expense; but the Udgalion bod 
arisen en a difiarent ground. He was of opinlen 
that the omission of the U. 7s. was not a dronm- 
staoce for which the trustee should be ohargeaUe in 
this suit and be ouMt 

Bittmet the NVwiM tottl. 

firmntu6n &a)D Courto. 

' '• ■' 

oovxT or Qusaii's sairoB. 

Rsported by Asax Btmistoir and Paul SiXMMO, 
Biqn. Buiistets-at-Lsw. 

TVetdoy, Jan. 21. 

HaLFOKD «. ' CAnaON's COALBKOOK, &c.'Rau.- 

WAT CouPAtnr. 
LiaUHfy tf Joint Stock Company upon a bill tf 
exckanqe accepted by direetort—Fbrm qfaceept- 
ance-^itat. 7*8 Vict. c. 110, ». 45. 
A bill of exchange drawn upon a Joint'Slock Com- 
pony in itt corporate name, accepted by two di- 
reemre at " dSreetort qf the company appointed 
to accept thi* bill," ana bearing upon it the cor- 
porate teal and alio the eounteritgnalure of iAe 
tetreiary, it eufficiently accepted under 7 if 9 
Vict. c. 110, ». v>, to bind the eompwty. _ 

Aetumptit on a hUl of exchange for Wit. dmrn 
by the plaintiff upon and accepted by the defendtnia, 
payable three months after date. 

i>/ra— That the defendants did not accept. Istoe 

The deftadants were a joint-stock company, com- 
pletely r^tered under the 7 & 8 Vict. c. 110, and 
the bul of exchange upon which the action waa 
brought was drawn upon the company by its ooi'po- 
rate name, and was thus accepted : — " Accepted, 
John Barfaam and Edmund Korcott, directon of 
Cameron's ISteam Coal and Swansea and Lou^fhor 
Railway Coinpanv, appointed to accept thii btU." 
The common seal of the company, having its cor- 
porate name inscribed upon it, was also affixed to 
the bill, and the name of the secretary was couAter- 
signed. Mr. Baifaam and Mr. Noroott were two of 
tlw directors of the company. 

At the trial before £&le, J. it was ohjected'that 
this acceptance was not binding upon the compuiy 
under 7 & 8 Vict. c. 110, s. 45, which requires that 
all bills of excbsnge shall be accepted by and in the 
names of two of die directors of the company 6o 
whose behalf they are accepted, and ihall by eueh 
direciort be expreued to be accepted by them on 
behalf of euch company. The learned judge reserved 
leave to the defendants to move to enter a nonsuit 
on this objection, and the plaintiff had a verdict for 

Thurtday, Jan. 16.— M. Smith moved accord- 
ingly. "The acceptance docs not expreii that ifia 
on behalf of the company, although that may be 
inferred. A rule on the same point has been granted 
in the Court of Ex. in a case of Edwardt v. Th* 
tame Company (a) ; and the cases which have re- 
quired so much strictness in the fonn of attestatioa 
to a warrant of attorney also apply to the present 
case. "The bill is properly witnessed by the secre- 
tary ; but that is m compliance with a provision of 
the statute, which is cumulative. 

Cur. adv. tuU. 
Lord Camtobli,, C.J.— We have taken inae to 
consider the motion for a new trial to set a«de the 
veidict for the plaintiff in this case. Having had an 
opportunity of inspecting the bill of exchange, On 
winch the action is brought and having attentively 
■ the form of the acceptances with the re- 

Btions of the Act of Parliament upon which the 

(a) Since discharged. 

Digitized by 




[VoL 17.— No. 419. 




objection is founded, we are of opinion that no mle 
ougbt to be gianted. However unreasonable the 

objection may be, and whatever facility to fraud the payment thereof, contrary to the form of the 
might ariso from giving efiect to it, stUl it must ' statate in such case made, ana there never ires any 
{nevail if the bill be not accepted substantially as ' other value or consideration for the acceptance 
the Lezislature fau directed. Although there are ' of Uie said bills, or of either of them, &c. ; 
no words of nullification, the meaning of the enact- ' and tiie plaintiff, before and at the seveiml 
<nent must be talcen to be that companies of &e ; timet when he made the said several bills, and when 

by the defendant in consideration of the said sum of ; alleged agreemoit, and the evidence was, tiiat tlie 
1001. so won by betting as aforesaid, and to secure ' defendant having lost the money at bkzaid, Booeptad 

and gave him a bill of excbaose for the mmoaat oa 
the 23rd of July, 1833, and altegad tliat he indoned 
the bill to Knight ; that in the month of Decenber 
following, the defendant reqneited him to take a 
promissory note at six months' date •■ • ntii&e. 
tion for and in sabstitntioo of the biU. The 

description therein mentioned shall only be liable as 
acceptors of a bill of exchange where the bill has 
{leen accepted by and in the names of two directors 
of the company on whose behalf it is accepted, uid 
expressing that it is accepted by them on behalf of 
.each company. But we think there is no necessity 
for the very words and syllables here mentioned to 
be written by the two directors on the laee of the 
bill. Aocotoing to Dr. Johnson, the meaning of the 
words " to express " is, " to represent in words ; to 
exhibit by langnage; to shew or make known in any 
manner. Now, do not the two directors who have 
accepted these bills represent in words, exhibit by 
language, shew and make known that the bills are 
accepted by them as directors on behalf of the com- 
pany ? The bills ate drawn on the company by its 
ooniorate name; they are sealed with the corporate 
aeal, having the corporate name of the company dr- 
«um8cribea ; and they are countersigned by the 
jecretary of the company, who so describes himself. 
Then the two directors write on the bill " accepted," 
aign their names under that word, and add " Di- 
Tectots of Cameron's Coalbrook Steam Coal 
and Swansea and Longhor Railway Company, 
appointed to accept this bill. Can there bo 
V>T reasonable donbt that this bill is by such 
directors expressed to be accepted by them on behalf 
of that company ? By whom are they represented to 
be appointed to accept the bill ? Unquestional>Iy by 
the company who are the drawers. Do not the 
directors repreaant that they act under that appoint- 
ment? Is not this a representation by them that the 
bin is accepted by them on behalf of the company ? 
We shooM not have considered it necessary to say so 
modi on this sobject had we not been informed that 
another Court, in a similar case, had granted a role 
to shew cause why the verdict should not be set 
wjiie. We entertain the most sincere respect for 
the doubts of that Coart, but nono of us entertaining 
' anj donbt onisdves, we think we cannot with pro- 
priety grant a rule which might, for a oonsidenble 
time, prevent the phuntlff from enforcing payment OT 
a just demand. Stut refund. 

Hat ». Atmno. 
SUl qf exehmge—Ilkgat eoiuiieralion—Pkadmg 

— Evidence. 
Tat eOutUona titl (^exchange m on actio* by 
mater agahut acceptor, the dtfendant pleaded m 
eubeloHce thai he had toet lOOf. to A. by betting 
on « hune-raee, and that the bill of exchange 
declared on wo* afterward*, at the regvett of A. 
j/tvem and accepted by the dtfendant m cotuiiera. 
■tUm qfthe eaidtumqflOOI. m won, and to tecttre 
ihe payment thererf, and that the plaint^ lott 
the biU wt'M notice. 7%e evidence wot that the 
till wot given in renewal of a former one, dit- 
honoured at maturity, which had been given in 
eoniideratiOH qf the lott bet : 
Held, that there wae'no variance, and that, notwilh- 
ttmding the omittionfrom the plea qfany mention 
of the intermediate bill, the dtfendant wat entitled 
fo a verdict \f the Jury thought that the bet wat 
a contideratton that mmed the defendant to ac- 
cept the bill declared on. 

Attumptit.—TyM declaration contained three 
counts : the first on a bill of exchange for 5(V. at 
four months after dote, drawn by the plaintiff and 
accepted by the defendant; the second, on a like 
bill for Ml. at six months; the third, on an ac- 
oonnt stated. 

Third plea.—ThtX before the acceptance of the 
Mveral bills in the first and second counts men- 
tioned, or either of them, and before stating the 
account in the last count mentioned, to wit, 
certain persons whose names respectively are 
to the defendant wholly .unknown, were abont 
.to game at a certain game, to wit, a game of 
hone-radng, that is to sn, bv racing divers horses, 
to wit, a horse named Snrnlice, fcnd divers other 
horses, and the defendant tuen betted lOOf. against 
IW. with J. D. M. A. that one of the persons, C. 
who was about to game the said game with the said 
liorse named Surplice, would not win the said game 
-with the said horse ; and the said J. D. M. A. then 
betted \0I. against lOOf. with the said defendant, 
that the said person would win the said game with 
the said horse named Surplice, and the said game 
was afterwards and before, &c. to wit, &c. gamed, 
.and the s^ person then won the said game with 
the said horse named Surplice, and the said 
J. D. M. A. then, by betting on the tide of tbe said 
person, then won of the defendant the said sum of 
1001. so betted as aforesaid; and tbe said bills of 
cxdiange, in the first and second counts respectively 
mentionnd, were afterwards, to wit, on, &c. at the 
-jvqoert of the said 3. D. M. A. given and accepted 

the defendant accepted the same, had notice of the ' promissoiy note on which the action ms bronght 

premises in this plea aforesaid, and took the said 
bills of the defendant with stich notice; and the 
defendant farther says, that tbe accoimt in the last 
count mentioned was afterwards, to wit, &c. 
stated of and concerning the moneys alleged to be 
due on the said bills of exchange in the said first 
and second counts respectively mentioned, and of 
or concerning no other money or cause; and the 
s^d sum of money in tbe last count mentioned 
was and is the amount of the said several bills, and 
no other money. — Verification. 
Replication^— lie tmaria. 
At the trial, before Brie, J. in Hilary Term, 1850, 
it was proved for tbe defendant that the defendant 
lost 100^. to J. D. M. A. by betting against the horse 
called Surplice, at the Derby Stakes, in the year 
IS48 ; that at tiie request of J. D. M. A. and in pay- 
ment of the bet of 1002. so lost, the defendant ac- 
cepted a bill of 100/. at a month, drawn upon him by 
the pimntiff; that the bill was dishonoured; and 
that aft«wards the plwntiff drew upon the defendant, 
and tbe defendant accepted the bills declared as in 
renewal of tbe dishonomped bill. Thereupon it vras 
objected, on behalf of the plaintiff, that the plea was 
not proved, inasmuch as the bills appeared to have 
been given, not in consideration of the bet lost, but 
of the hill that had not been honoured ; and that, to 
admit the defence, tbe plea should have set out tbe 
bets relative to the intermediate bill (Boulter v. 
Coghlan, 1 Bin. N. C. 096). The learned judge 
overruled the objections, reserving leave to the plain • 
tiff to move, if necessary, that a verdict be entered 
for him ; and to the defendant to amend, if neces- 
sary ; and he left it to the jury t^ say whether Uie 
bills declared on had been made in consideration of 
flie bet. Verdict was found Ibr the defendant ; and, 
snbseqoently, a rule niti was obtained for entering a 
verdict for the defendant, pursuant to leave, or, if 
necessary, for judgment aon obttante veredicto, on 
the ground that the 8 & d Vict. c. 109, doe< flot ex- 
pressly avoid securitiea given for a gaming debt. 
Against the rule cause was now shewn'oy 

M. Chambert, Q.C. and Keenc—Tbe plea was 
proved. The question was one of fact for the jury, 
and their finding will not be disturbed. It is as- 
sumed on the ouier dde that, because the bills de- 
dared on were given after tha lOOi. bill had been 
dishonoured, they were given in consideration of 
that '.bill only ; bat if they were given in considera- 
tion of the bet and of that bill, and that was shewn, 
the plea was proved. It is dear, on the evidence^ 
that thev may have been so given ; the verdict shews 
that in tiie opinion of tbe jury they were so given. 
The case of Boulter v. Coghlan does not apply. 
The issue &en was whether tbe note bad been given 
in pursuance of a certain apedfic agreement, and it 
was dear that it was not. The question in this case 
was whether the lost bet was a consideration that 
moved the defendant to accept these bills. That 
case was before the 5 & 6 Wm. 4, c. 41 ; and under 
the statute of Anne a note i^n for a gaming con- 
sideration was absolutely vmd, even in the hands of 
an innocent bolder. At present notioe of the tainted 
origin must concur with the taint to avoid a bill 
lAvenfor a gaming connderation ; and, therefore, 
9ie Court will not either require that intermediate 
transactions be fiilly set ont, or be liberal in allow- 
ing amendment. [The rest of the argument is 
rendered unnecessary by the judgment.] 

Walton, Q.C. and Jamet, Q.C. contra.— The case 
of Boulter v. Coghlan was well dedded, and applies 
to this. The illq^ity relied on must be traned in 
the plea from its origin to the title of the plaintiff. 
That the transaction set out in the plea, and proved 
in evidence, is practically one and the same, b not 
enon^. (David r. Prteee, 13 L. J. Q.B. 88.) The 
plaintiff ought not to be called on to defend the 
parity of a bill which the plea does not mention. 
[The rest of the argument is xmnecessary.1 

Qir. adv. vult. 

liord Campbell, C.J. — We are of opinion the 
verdict for the defendant on the last plea ought not 
to be disturbed, as all the material allegations in 
this plea were proved. The plaintiff^s counsd rested 
their otjection on tbe authority of Boulter v. 
OoghUm, 1 Scott, 588. We entirely approve of that 
deosion. There the plea, after stating the loss of 
the monev at play, went on to allege, "the said 
money being so lost it was agreed betireen the parties 
the payment thereof should be secured by the pro- 
missoi7 note of the defendant, to be by him made ; " 
and in pursuance of that agreement the defendant 
made the promissory note on which the action was 
brought. The replication denied that the promissory 
note was made by the defiendant in pursuance of the 

was maius and ddivered to him, and Ka^ 
indorsed the note to the plaintiC Lord Chief JaslMa 
Tindal, with the other judge* of tba C.P. wy 
properly hdd the plea not proved, for tha note had 
not been made in purtuaiioe of tbe agreement ■ ' ' 
in the plea, but in pnrsnaace of anoUwr ai 
between the parties. In the present (»ae, I 
the plea, after stating the loes of lOOf . goes ta ts 
allege that the two bills of exduoga on which tbe 
action is brought were given and aoeeptad by tiie 
defendant in ooniideratien of tiie aid anm of HM. to 
lost by betting as aforesaid, and to aeeore Oa p^- 
ment thereon the replication de u^wrid pots Oit 
in issue, but this allegation was proved ; the Ub 
were given in omsideiation of this lOQt. to Ititbr 
betting, and secured to the plaintiff bT thMi. TUi 
was, at all events, part of the ooniidentira. IV 
plea adds that then was no other oonaidaatiaa fm 
theaccaptancy; butthisisannnneceaaary tlViptiwi, 
not requiring tobe proved: aod if wearetoimdaitaad 
theywere'nvenon thefirstuUoflOM. likenrisaaaaeia- 
siderationtbrtheacceptaaoe, the plea ia not dijpiuitl 
and becomes a bar to the actioo, as the bills oa wUA 
the action is brought are nullified if auay part of the 
consideration was illegal. As tha law noir Itmh, 
the illegality of the oontideration wooM be no sMasr 
to a holds' for a bond fie eonii dw ti on, bat tkt 
plea goea on to allege, what was distioctiy moved, 
that the plaintiff, before and at the sevosl tiaai 
when the payments vrere made and accepted, htd 
notice of the premises afore«id, and took Ae wiH 
bills from the oefsiidant with the said notice. W* 
have therefore come to the eondiMJnn, that ia tkil 
case there b ndther defideaey of proof nar iniia, 
and tbe application to anead the riaa is naaaoM. 
sary. An exception waa taken to toe vahdi^ of Iks 
plea, on the gronnd that the atatate 8 & 9 Tlet. 
c. 109, does not expressly avoid aecoities gitaa te 
gamins debts. But tbe statate 5 & 6 Wm. 4, a 41. 
s. 1, does enact sodi aecority sbalt be J ss s s sd to 
have been made fear an illegal iiuiisidiaalioai aad 
thereupon void, exeept in the hands of a beiUfid* 
holder for valoe. Therefon, the lab ■ntkedv- 
diarged. iWidtetayed; 

Saturday, Feb. it. 
Elliott ». Clattok. 
Uncertificated Battrupt—PerMual liloar V • 
medical praetUiemer. 
A general medical pracHtioner, being an 
caled bankrumt, but, by the atmilamce <f^ 
enabled to obtain medicinte oa credit, wdssW 
continue carrying on hi* tattaet*, eaaasi rttafcr 
for hi* attenJaneei and mtdieine, ^kitauipm 
tnleifert, and refuire payment to be imw » 

Debt.— The dedaiation stated, thatOie dAatat, 
on the 28ti> day of January, A.D. IKO, <ns iadlMM 
to the plaintiff in 23/. 3t. 6d. for tiie wnk. cm 
dlligeoce, aad attendance of the |dtdntifflv >" 
before that time performed and bes t owed tss 
surgeon and apotheory for the said defendan t, a» 
at his request, in and abaat the beating tad gp^l 
the defendant and diveia other peraoas of ana 
diseases, &c ; and alto for divoa aMdidaei ad 
other neeesssry things bv tbe plaintiff bsfo w tnt i 
time found and "provided, a diniuis t iw e d , djiww»' 
and applied on those occasions for the iubmim, 
and at his request; aad for money foand to kea> 
from the defendant to the plaintiff on an amoi 
then stated between them. 

4M P/e«.— As to the leaidae of tiie debt in As 
dedaration mentioned, that heretofore and *"" t* 
passing of the said Act of Pariiainent beninbefonB 

the second plea mentioned, to wit, on tiie saatSut 
day of November, A.D. 1845. hereinbefor * in as 
second plea mentioned, the plaintiff was a saigl* 
and apothecary, teader. dealer, and chapman, tads 
trader witUa aad •o^eet to the itatates tb(o9 
force concerning bankiapta; aad that thepw^' 
before the aocmiiig of the said reddae of the dwt m 
tbe dedaration moitioned, duly filed the said deotia- 
tion in writing berdnbefore in the second pba osa- 
tioned in manner and form aa in the said second pM 
is alleged; and that thereupon, and before Oeae- 
cniing of the said residue of the debt m tiie deoti*- 
tion mentioned, the plaintiff became and *** * 
bankrupt [setting ont the prooeedineh &e. ia haok- 
roptcy] i and that after the commencement f^y^i 
said sm^ aad after theaccming of tbe said loddne n 
the debt in the dedaration mentioDed, to wi^oft 
&C. the said Joaeph Callow, as toch itnim 
assignee as afo re s ai d, required the defendant te PV 
to him the taidretidne of the debt in the deJaialioB 
mentioned. ^^ 

Jbyfieafioa io the fimih pte».~Tiiit n* 

Digitized by 


April 12, 1851.] 






said work, care, diligence, and attendance of the 
plaintiff by him performed and bestowed as a surgeon 
and apothecary for the defendant, as in the declara- 
tion mentioned, so fitr as the same relate to the said \ 
residae of the said debt, were, and erety part of the : 
same was, merely the personal labour of ue plaintiff ! 
in that behalf, performed and bestowed after the 
filing by the plamtiff of the said declaration tiiat he 
was unable to meet his engagements, and after be 
had become and was a banltrupt as in the said fourth 
piaa mentioned, and were and erery part of the same 
Was then done, performed, giren, and bestowed in 
and for the necessary nresent maintenance, support, 
and livefihood of Ae plaintiff and his family. That 
the nid medidnes and other necessary things by the 
plaintiff found, provided, administored, delivered, and 
applied for the defendut as in the said declaration 
mentioned, tec. were and every mat of the same vras 
fooni, provided, administeret^ delivered, and applied I 
by the plaintiff as sndi surgeon and apothecary as ' 
aKKMaid after he had become and was a bankrnpt, I 
aod then were and every part of the same was pur- 
chased and obtained by the plaintiff from, by, and 
out of the earnings and profits of his professional 
labour done and performed after he had oecome and 
was a bankrupt, and not otherwise, and that the said 
medkines ana other necessary thinn were and every 
port of the same was then greatly incmsed in value 
and price by the personal labour of the plaintiff in 
preparing, mixing, compounding, and administering 
the same, and that the said medicines and other 
neoeasary things were, and every part of the same, 
was then found, prorided, administered, delivered, 
and applied by the phtintiff in and for the necessary 
pteseot maintenance, support, and livelihood of the 
lilaintiffand bis family, and as • part of and inci- 
deatal and necessary to his sud penonal labour, and 
in order that he might perform the said personal 
labour in the most advantageous manner for 
the necessary present maintenance, support, 
and liTeHbood of the plaintiff and his fomily, &c. 
And that the said residue of tbe soU debt due and 
payable from the defendant to the plaintiff in respect 
of the said work, care, diUgenoe, and attendance of 
the plaintiff, and in respect of the said medicines and 
other necessary things by the pUntiff found, pro- 
Tided, administered, delivered, and apidied fbr the 
dafendant, and in respect of the said account stated 
by and between the phuntiff and defendant, was not 
.more than sufficient for the necessary maintenance, 
support, and tirelihood of the plaintiff and his family . 
JifFe^uier.— That the said work, care, diligence, 
lai attendance of the plaintiff in the said replication 
tte'unmetf,' were not, nor was siiy riarf 'of ne same, 
nsnly the personal labour of the plaintiff performed 
or bestowed in manner and form as in the said re- 
plication is alleged, norwerenorvraaany partof the 
sane done, performed, given, or bestowed in or for 
.tte necessary present maintenance, support, orlive- 
UMMid of the plaintiff or his fomilv, nor were the 
•sid medidnes and other necessary things in the said 
replication dsentioned, nor was any port of the same 
purchased or obtained by tlie plaintiff from, bv, or 
oat ef the earnings or profits of his personal labour 
ikne or performed in manner and rorm as in the 
said lepHintion ft alleged, nor were the said medi- 
cines and ether necessary titinn, nor was any part of 
the same, foRind, provided, administered, deUvered, 
«r applied by tlie plaintiff in or for the necessary 
pw o eu t maintenance, support, or livelihood of the 
plaintiff or his iamil^, or as a part of, or incidentai, 
or nrnssaiy to his said personal labour, or in order 
tliat be might perform the said personal labour in 
tiie moot advantageous manner, &c. 

At the trial it appeared that the plaintiff, though 
' on anoertifiaited bankrupt, bad been enabled to oon- 
tiane the practice of his profesrion by the aid of 
fiienda, one of whom had bought in for him his 
stock of medidnes. He had attended ihe defendant 
■s a general medical practitioner, and supplied him 
with the neoessarymedidnei. The greatest part of the 
plointiS'a bill was for medicines ; out it|,was proved 
that the intrinsic value of the dnqp was very triiliog, 
their value depending prindpally upon the personal 
■kiU of liim who administered them. It was ob- 
ieded, first, that the repliaation was not prored; 
aeeondly, that it was bad in arrest of judgment. A 
▼eidiet was found for the plaintiff, damages 222. 17s. 
aubject to a motion upon those points. A rule niti 
, liad aoaordmgly befn obtafaied to enter the verdiet 
Air the d e ftnd g n t, o« arrest tiie judgment. 

TkmrttUif, Dee. b.— Fraud* shewed cause.— The 
replieation u proved. The sale of the medidnes is 
to blended with the mere personal skill and labour, 
fliat tiiey cannot be severeu, and the plaintiff is enti- 
tlad to recover for both. [EaLK, J. — An uncertifi- 
cated bankrupt isentitledtobispeisonaleamings; and 
tiatdoas notmeon personal labourmtrely; beeausea 
painter who produced a picture worth 100 gmneas, 
tfaoudi the materials aiight be worth only a shilling, 
would be entitled to reomve that money. Patte- 
•etr. J. — I see no evidence that the meudnes were 
pwebased out of his personal earnings.] They could 
nat be porchased in any other way. It cannot be 
•iU that the earnings were obtained by a resale of 
the n a d i cines at a profit. In tnih, die diarge for 

medicines is only a mode of charging for the personal : 
attendance. Because one-twentieth part of tne value j 
arises from the drugs themselves, the assignees claim I 
the whole, although nineteen-twentieths arise exdu- | 
sively from the personal labour. That they are not i 
entitled to do, and the replication is proved, and 
affords an answer to theplea of bankruptcy. (SiUv. { 
Otborne, 1 Esp. 140; Svant v. Brown, I Esp. 169 ; 
Bectham v. Drake, 13 Jurist, 928.) In Crifton v. 
Poole, 1 B. & Ad. 568, the work for which the 
plaintiff Bou^t to recover was not his personal labour 
at all i it was done by others whom he employed. 

Bramwell, contra. — The Court will not extend 
this privikge of an uncertificated bankrupt further 
than the cases have already carried it. [Eblb, J. — 
T do not think that the inclination of tne House of 
Lords in Beeiham v. Drake was to limit it.] It 
was not favoured in WilUanu v. Chambert, 10 Q.B, 
Rep. 337; and in Crqffon v. Poole, the plaintiff was 
nonsuited. [Wiohtmam, J.— What would be the 
dedaration by the assignees?] For work and bd>our 
and materials. [Erle, J.— Then, upon imeral de- 
murrer, would uere not be judgment for the de- 
fondant ?] Not so ; it would be good, at all events, 
as to the materials ; and if the bankrupt chooses to 
mix up the sale of goods with his personal labour, 
he loses the right to all. rWioBTMAN, J.— Then | 
a carpenter cannot recover, oecause he uses nails in , 
his work.] Not if he buys and sells. rEaLS, J.— j 
Bat the sculptor who buys a shilling's worth of | 
marble, and mokes a valuable statue, would be able | 
to recover, at all events, if he made it to order ; : 
perhain, if he made it to sell, and sold it, the pro- \ 
ceeds wotdd pass to the assignees.]. Can it depend ; 
upon whether the thing is made to order or upon I 
speculation ? The only definite and intelligible rule 
is to confine the privilege to mere personiu labour. 
This, therefore, is a bad replication, and every alle- 
gation ought to be proved. It is not proved that the 
medidnes were purchased out of the plaintiff's per- 
sonal earnings, nor that the accoant stated vras in 
respect of tiie personal labour, for no account stated 
waa proved. (He also referred to Hemty v. Stevent, 
3 Boa. & P. 565.) Cur. «fo. wit. 

CoLKUDea, J.— This wu ai^ed before my bro- 
thcn Wightman and Erie, and myself.(a) It was a 
motion to enter the verdict fbr the defendant, or to 
arrest the judgment. The action was for work and 
labour as a surgeon and apothecary, and for goods 
sold and delivered, and on an acooqnt stated. The 
plea was the bankruptcy of the plaintiiii and that the 
goods were claimed oy the assignees : NpUc^ion, in 
effect, that the labour was the personal labour of the 
phuntiff bestowed after the bankruptcy, and done for 
the necessary support of the plaintiff u>d his family, 
and ii» goods ana medidnes were purchased out of 
the proceeds of the plaintiff's personal labour, and 
increased in value by the plaintifi^s personal labour 
and skill. The rejoinder traversed that the labour 
was the personal labour of plaintiff bestowed 
after tiie bankruptcy, and that the goods and medi- 
dnes were purchased out of the proceeds of the par- 
somd labour as alleged in the replication. It was 
prosed that the plaintiff was ageneral medical prac- 
titioner, and had failed and become insolvent, and 
was an uncertificated bankrupt, but by some arrange- 
ment with a friend, who baa purchased his stock of 
medidnes, he continued in possession of credit, 
carrying on his business as Wore, and was sup- 
plied with fresh medidnes and credit from ocoasioitBl 
sources. Under these drcnmstanoes the debt was 
contracted. The plaintiff attended tiie defondant, 
giving him the beneftt!of his skill, and furnishing the 
me^dnes which he thought neoeasary. We have 
considered this case, and ore of opinion that the repli- 
cation was not proved. In Crt^tom v. Poole, 
1 B. & Ad. 568, the plaintiff was an uncertificated 
bankrupt. His busiiMSS was that of a furniture 
broker : the debt was oontraoted in the removal of 
the defenduif s goods, and to do this, the plaintiff 
had procured vans, supplied bottle cases and crates, 
and employed assistants in packing, unpacking, and 
remoring the goods. Some fiimiture he deoned and 
repaired, and found the necessary materials for those 
purposes. The Court, held this was not a demand 
for mere personal labour. Tiie plaintiff was, in sub- 
stance, carrying on his bndaess, and the proceeds 
passed to the sssignees. So it ^ipears to as here : 
in substance the plaintiff was aayixiif on his busi- 
ness as a medical practitioner; he is m possession of 
his original stock of medidnes on credit, and he pro- 
cures more upon credit, aod with these and his per- 
sonal skiU he is pursuing his occupation for profit. 
It wonld be to carry the prindple laid down in Silk 
V. Otborne, hi beyond what is reasonable to apply it 
to a case like the present. 

Rule lAeolute to enter the terdiel /or th» 
defendant. ___ 


ScBMALz *. Amr. 

Prineiful and afent—Ckarter'parti/—UeHtUf «/ 

a/en4 and nndieeloeed prine^falr-VaHanet. 

(a) PattsaOD, J. heard part of th* argument only. 

A perion contracting at agent for an unknovn <m<< 
URiuiined principal it not precluded from luing 
ae principal himielf, unleet it appear that the 
other party to the contract relied on the eharae- 
ter of the plaintiff a» agent only, and would not 
have contracted Kith Mm a* principal tf he had 
known him to to be. 

By the term qf a charter-parly made between the 
drfendant at owner of a thip, and the plaintiff ae 
agent for an unknown and uunamed principal, it 
wai agreed that the defendant ihould take on 
board a certain cargo, l(C. One qf the «f nw/o- 
tion* wai in theie wordt . — " Thi* charter ieinff 
concluded on behalf (^another party, it i» agreed 
that all retpontibiltty on the part qf 8. the 

5>leintiff, ceate at toon at the cargo it thipped." 
H an action m the charter-party by the plaint^ 

at principal/or not taking the cargo on board, it 

wai proved that the plaintiff wai thi real prk^ 

Beld, thai the dtfendatU wai entitled to lu* a§ 


Aitumpiit on a charter-party. 

The declaration stated the instrument as " a CMr- 
tam charter-party of aSreigfatment then made be- 
tween the defendant, therein described as the owner 
of the good ship or vessel called, &c. of the one part, 
and thepUdntiff, merchant, and freighter, of the other 
part." Breach,"tbataIthoughtheplaintiffhadalway8, 
from the time of making thcaoid agreement, been ready 
and wilUng to load, according to the terms of and in 
the manner spedfied by the sud charter-party, a com- 
plete cargo of large steam cools, not exceeding vrhat 
the sud ship comd reasonably stow and carry, over 
and above her tackle, &c. at any spout not above 
Howden, or from so near to any safe spout not above 
Howden as the sud ship could safely get, of wUdi 
the defendant had notice ; yet the defendant did not 
sail or proceed with allconvenient speed, or at anytime 
after tne making of the said agreement and ohsrter- 
party u aforesaid to any safe spout not above, at, or 
near Howden, as aforesaid," lie 

Ut Plea. — Non auunmnt. 

On the trial, b>fore Wi^tman, J. at the New- 
castle Summer Aniies in 1850, the followiiu: "me- 
morandum for charter," signed by the defendants 
was pnt in :— " Newcastle-upon-Tyne, 23nl day of 
July, 1849. It is this day mutually agreed betwean 
ib. 6. Avery, owner of the good ship or vernal 
called, &c. now in the Tyne, on the one part, and 
6. Sdimalx and Co. merdiants, as agents at the 
freighter, of the other part, that the said ship bdnc 
tight, &e. shall, with all convenient ipeed, tail ana 
proceed to a safe spout not above Howden, or so 
near thereunto as she may safely get, and there load 
frvm the agents of the saia freighter, in regular tarti, 
a complete cargo of large steam-coal, not exceeding 
what she can reasonably stow and carry, over aM 
above her tackle, Ac ; and being so loaded, shall 
therewith proceed to Swinemund^ and deliver the 
same to the said freighter, or his assigns, on being 
paid freight at and after the rate of," &c. Anonc 
other stipulations, it contained the foUowing: — " Thw 
charter being oondnded on behalf of another party, 
it is agreed that all responsibility on the part of 
G. Schmalx and Co. cease as soon as the cargo is 
shipped." The cUuse in italics appeared in apiinted 
form of charter, which was used oy the phuntiff and 
his partners, and, it was said, was, in the present in- 
stance, inadvertently omitted to be struck out ; and 
evidence was given, that in a oonveitation between 
the defendant and the partner of the plaintiff, the 
latter had stated that the plaintiff, was really inte- 
rested, and that it was a speculation of his own. It 
was objected, for the defendant, that there wat • 
variance between the charter-party as declared 1900 
and as given in evidence. The learned judge in- 
clined to the opinion that the plamtiff was ooaduded 
by the terms of the charter-party from saying that 
he waa not agent, and that me endenoe altered tlie 
written contract. A verdict was entered for the de- 
fendant on the first issue, and for the plaintiff on 
the second and third issues, leave bdiw reserved to 
move to enter a verdict for the pluntiff for bl. Wo. 
damages. In the following Micfiaelmas Term a rule 
nisi was granted aocordingly, against whieh canse 
was shewn (Nov. 6) by 

Walton, Q.C. and Unihani. The contact In 
this case remained executory at the time of actioa 
brought: and therefore the plaintiff, who bad 
entered into it as agent, was not entitled to sue as 
prindpal. Humble v. Hunter, 12 Q.B. 310 j 
Bickerton v. BurreU, 5 M. & S. 286. It may be 
that the defendant would have refused to deal witii 
the plaintiff as principal.— that he was willing to deal 
vrith any one whom he did not know, but aOMdntely 
unwilling to deal with the plaintiff whom he dia 
know, further, there was no mutuality between the 
plaintiff and the defendant; fbr an action for not 
loading a cargo would not have lain against Qt^ 

{ilaintiff: and, if the cargo had been shipped, tke 
iabilityof Schmalx & Co. would have been asd«> 
ded. rWiOBTMAN, J.— Schmalx was the prindpaL] 
His written statement in the contract is, that be was 
not the prindpal: and be cannot be permitted to 
contndlct this. This case is governed by JenUm* 

Digitized by 




[V«L17. Ho. 





T. Mmiehiium, 18 L. J. Q.B. 274. [Pattbson. J. 
. — In thatcase thare wia not any bindiag oontoact; 
in this tbereiwas a oontnujt, at all «*aiita oinding on 
the defendant until the ship waa loaded. It cannot 
tiare been meant that, after the loading of the ship, 
there sboold he do cooiract with any one.] The 
QOBtract was with the anknown pandpal, who was 
not to be Schmalz ; the latter was only bound to 
disclose liim if he ^ not come forward. 

Kaouln, Q.C. and UdM, contra. This objection 
Oo^t to have been taken to the reception of the 
endenoe that the plaintiff was tlie princijial ; as was 
done in Humble t. Hunitr, 12 Q.B. 310 ; bat in fact 
.parole evidence is always necessary for shewing that 
the party sbed is the party who made tiia contract, 
andisbooadbyit THimumT. X«<icr, 11 A.&E. 
509. In the case of Bieterton v. BurrM, the 
, Mntiact had been signed by ttie a^at, the pUuntiff, 
itot the principal by name, and so is distingnishiAle ; 
* .lw#dee. in Rayntry. Grote, the agent was held en- 
titled to sne in his own name for non-acceptance of 
goods on a contract which contained the name of the 
principal. If a man state himself to be an agent, but 
nas not in fact a principal, he is in law himsdf the 
•yrindpal, bothin renect ofliability to be sued and 
ability to sue. Baillen t. Hodgtoa, 4 Taun. 575 ; 
>dJ4i*o>i'<r. Gaadauqui; Attttur. Amiltr, 2 Esp. 
,493; noBuouy. I^vtt^orl, 2 Smith, L. C. 223; 
-jThey also cited Higgim t. Ssrnor, 8 M. & W. 
634; /Sows T. A>mi,S B. & Ad. 389; and Jmimi 
. ,▼. MUelmion. Cur. adv. vult. 

.A-crossmle had been obtained for entering the 
■iVKdictfor the defendant on the second issue, on the 
.ifiovai that the averment of the pUintifTs readiness 
rto load at any. spout not above Howden, &c. bad not 
ibaen pnived, {naaninoh as no particular spoat within 
■ tbeliaits fixed by the diarter>party had been therein 
.named for the defendant to proceed to and lead, and 
;<it waa not shewn that the puintiff was ready to load 
,mbaaf safe spout. It Iiad, however, appesied that 
.-4]ie plaintiff nad named to the drfendant, and had 
.b^.ready to load at the B. spout within these 
Hmits, which was a safe one. Against tlie rule eaose 
was shewn by 

Knowlet, Q.C..and UdalL—The plaintiff was 
-tmiy- to lo^ ata safe ^pont within the terms of the 
,«harter. He was not bound to be Teady at every 
ivSafo spout within the limits. • ' 

UiMaiii, oontrii, cited Matthtm v. Lmetht, 19 

.WiBHTifAN J.— Theevidenoeisthathewasready 
>to load at one spout, and tliat meets your traverse. 
^How manyspoots was be to name? Not ready to 
lload at any, means ready toload at none. Must he 
•iSbaiv.aa offer to load at averv one. 

Pahteson, J.— You read "any "as if it ware 

WioBTHAM, J.— Or " alL" 

fiytheCooBT.— RtUe dueHarfftd. 

Wtdnuiay, Fei. 26.— The judgment of the Court 
,IM8 now delivered on the first rule by 

Patiuon, J.— This wasan action of osramMit on 
^dla(te^•party, notnndar seal, against the defend- 
'.ant, a ship owno:, for not talcing a cargo on board 
, •ooording to the charter-party. The anestion raised 
,«ntbeplaaaf turn asniiiwnt is, whether the action 
jmU lie at the suit of the present plaintiff. The 
.'4lhazter-party in terms states that it is made by 
-fi e hma l z and, Co. the plaintiff, as agents for the 
-fteighter, and then states the terms lof the contract, 
•aad concludes with these words, " this charter-party 
-being concluded on behalf of another party, it is 
.■•greed that all responsibility on the part of Schmalz 
-ud Co. ceases as soon as the cargo is shipped." 
nChe declaration treats the charter-party as made 
ibatween the plaintiffs and the defendmt without 
jaaentioning the character of the plaintiffs as agents, 
-and without any refeienoe to the concluding clause, 
^thereby treating the |>Iaintiffs as principals in tiie 
.eontract. At the trial it was poved that the plain- 
,iiffs were, in point of fiset, the real freighters. No 
■objeotion was taken to the admisriUUty of the evi- 
ilenoe by which that fact was established, but at the 
jdoae of the pUintiffi' oase it was objected that they 
.ware concluded by the terms of the charter-party, 
4Dd fixed with the character ef agents, so that they 
joonld sue only in that «haiaater,and consequently that 
there was a variance between the declaration and 
.&e proof. A verdict was found for the defendant, 
.arithlftertyto enter the verdict for the plaintiff for 
■v. 2s. 6d. whioh was the agreed damage, if the Court 
4hoBld be of opinion that be was entitled to sne as 
.jciacipal, notwithstanding the terms of the charter- 
jiarty,.and a rule nisi was obtained so to enter it. 
nWe are of opinion that the role mnst be made abso- 
ilate. It is conceded if there had been a third par^, 
Arho.ans the real freighter, such third partv might 
iliave sued, although his name was not disclosed in 
tile charter-party ; hot the question is, whether the 
.■plaiatiffcan fill both characters of agent and prin- 
.aips^ or rather, whether he can repudiate that of 
agent and adopt that of imndpal, both characters 
4Mia{ referred to in the charter-party, but the name 
•^4& principal not being tberam mentioned. The 
aas o a principally relied upon for the defendant were 
fiiektflon v. Burrtll, 5 M. & 8. 3S3, and Saprur r. 

GnU, 15 U. & W. 359. in both which cases the sup. 
posed principal was named in the instrument of 
oenbnct; also the case of Humble v. Hunter, 12 
Q.B. 310. In the eaae of Biekerton v. Burrell, the 
plaintiff, an the face of the contract, professed to 
enter into it as agent for C. Richardson ; at the trial 
C. Richardson was called to prove that her name 
was used without her knowlec^, and that she had 
nothing to do with the contract. Lord EUenborqugh 
rsfiued to receive tlie evidence, and nonsuited ^e 
plaintiff. A nile nisi to set aside the nonsnit was 
obtained, but en argument was discharged, on tiie 
ground that a person who has exhibited himself as 
aocnt for another whom he names, cannot at once 
threw off Aat cbaiaeter and pat himself forward as 
principal withoot any oommanication or notice to 
the other party. All the judges relied on the want 
of such notice, which seems to have been the chief 
ground of the decision, for the^ considered that the 
defendant was thereby placed in gn»t difficulty, as 
he had oontmoted in pomt of law with C. Richard- 
son, and not with the plaintiff, and m^ht have no 
means of asosrtaining or even conjecturing that she 
was not the real party. The soundness of that 
groaad of daciaioo was somewhat doabted in 
the late -«a«e of Boyner t. Orott. There the 
plaintiff oontncted as a^entfor Johnson, hot was, 
in truth, Umsdf Hxi prmdpal. He sued the de- 
fmdant for not accepting and paying for the goods : 
the defendant had accepted and paid for a great part 
of the goods sold, and knew before he refosed the 
residue that the plaintiff was the .|«al prinemal ; and 
so the case was diatingiiiAable^iom'tMt ot Bicker- 
■Um v. Burrtll, on the very ground on which the 
deeision proceeded, and the pluntiff was held to be 
entitled to sue. The ease of HtuHble v. HmUtr 
was an action by Grace Humble on a eharter-party, 
aigned by her son J. C. Humble, in whidi he was 
'described as the "owner of the good diip or vessel 
called the Amu" then the son was called at the 
|rial, and afterobjeetion taken to his admisriUlity, 
.proved that he executed as agent for the plaintiff, 
.and the plaintiff had a ver^et. The Court, however, 
granted a new Mai on the ground tiiat it was not 
competent for a third party to come in and daim to 
be the principal, and so contradict the express state- 
ment of the contract itMlf. The case tamed npQn 
tiie foam of the contract, for it was eonosded thstif 
the words " owner of the good ship," &c. had been 
omitted, the plaintiff migbt have soed on shewing 
that she was the real owner, aad that the son iras 
bar agent only. 9nch evideoee would not have con- 
tradided tiie oaatcaet, but would only have let in 
a third party who was really int e r e st e d, in con- 
formity with the current of autiiorities in oases of 
eontrarta^aeonted by ageata in their own names. 
The qaae of JenUn* v. Hntekuutm, 18 L.J. 274, 
Q.>B. was also oitad for the defendant; but it pro- 
ceeded on a idlffeTent grooqd, and is not applicable 
to the preaei)t question. Then the defendant was 
sought to b»<duuged ae principal on a charter-party 
axecnted by -him, on the fooe of it, as agent for 
Bwnes; hebad,'in Irath, no anthority from Barnes, 
not was he hiaiseK intesested at all, and the Conrt 
held that he shedd not be sued as principal witbont 
shewingihat lie -laally was so. A distinction was 
takenon the argument in the present ease by the 
defimdant's eoimsel -between an executed and an 
executory contract, andit was stated that, whatever 
be the rule in the former class ef cases, where tiie 
defendant has received 4he benefit of the contract, 
as it is probably immaterial to him whom he pays, yet 
that in the latter class tiie defendant cannot pro- 
perty be held answerable to B. having expressly con- 
tracted with A. and a passage in the judgment oflfae 
Conrt in Aqmer v. Grote, was much relied on, 
which is this: "If, indeed, the contract had been 
wholly unperformed, end one which the plaintiff, by 
merely proving himself -to be the real.pnncipal, was 
seekii^ to enforce, the question might admit of some 
doubt. In many cases, such ss, for instance, the 
case it oontvacts in which the skill or the solvency 
of the person who is named as tlie pnndpal may be 
considered as a material ingredient in the con- 
tract, it is dear that the agent cannot then 
shew himself to be the real prindpal, and sne 
in his own name ; and it may be fairly urged that 
this, in all exeeatory coNlracts, if wholly unper- 
formed, or if partly performed, without the know- 
ledge of who is the real prindpal, may bethe general 
rale." With this passage we entirdy agree ; but it 
is plam that it is appli<M)le only to cases where the 
supposed prindpal is named in the contract ; if be 
be not named, it is impossible that the other party 
can have been in any way induced to eater into tte 
contract by any of the reasons suggested. In the 
present case, the name of the supposed freighter not 
being inserted, no inducement to enter into the eon- 
tract from the supposed solvency of tiie freighter can 
be surmised. Any one who could prove himself to 
have been the real freighter and pnndpal, whether 
solvent or not, eaight, most nnqu^ioiudily, have 
been sued on tliis ohaster-party. The defendant 
oannot bare beea in aaf way pcajudleed in respect 
of a^ sapposed aslianoe apon t£e selveaoy of the 
frdgbt«r, since tba frsifbter is admitted to .bare 

been unknown to him, and he did not tiiiak i 
necessary to inquire who lie was. It !■« indeed, pa. 
sible that he might have been contented to tak»<B 
freighter as prindpal, provided it was xkot: the posn: 
plaintit^ and he may have relied on the terai a 
tlie charter-party indicating that tbio plaintiff aa 
an agfflit only, being willing to accept of ■> 
one else, be be who be mi^t, as priaaai 
After all, therefore, the question » redaoed to dt 
whetiier we are to assume that the defeiulant did a 
rely on the character of the pkintiS* sis agiwt sab. 
and would not have contracted with iiim a 

Erindpal, if he had known him to be ao, and ant 
ly it down as a broad rule that a person ocmiimtm 
as agent for a known and nnnamed prisuapslitfa^ 
doded from saying, "I am myself the prindpd' 
Doubtless his saying so does in some meaaait at- 
tradict the written contract, espedally the mafllafic 
danse, which says, " this charter-party henig tm- 
doded on behalf of another party, • Ac." tat &Be 
was no such other party. It mav be that the pMaif 
entered into the charter-party for aome other |«t 
who had not absolately anthoniied him to doa>,ad 
afterwards declined taking it; or it may be thatk 
intendedoitiiBaUytobetlwptiacipal- Ii>aither«R 
.the charter-party woaM lie, atrictly spnalriag, taUm- 
dieted, yettne defendant does not appear tob*^ 
judiced, for as he was regardless who ttais realfieatkr 
was, it should seem that he trusted far his faai^a 
his lien on the cargo. But there is no oootiadidiM 
of the diarter-party if the plaintiff can be tonUmi 
as filling two cnaracters, namely, thoae of agcalal 
principal. A man cannot, in strict prooncty d 
speech,.be said to be an agent to hiaiarif; W b> 
ooatract of this ^scripticni we see no aiwarti^ii 
saying he might fill both cfaacacters ; tiiat heaaill 
oontnct, as agent for the frajghter, w h aei ti tia 
freighter might turn oot to-be, and miriit stiDaift 
tlie character of freighter himself if liadioae. Itee 
is nothing in the aiKument that the party's icsraai- 
bility is expressly pade to oease "as ioanasife 
cargo is sliipped, for that limitation niaialysnia 
only to the cfaaiaeter of agent, and beiag tkefld 
prindpal, his responsibility would anqaolindUr 
continue after the cargo was shipped. On the nhk 
we are of opinion that .this rale mait be mit 

ojsvmv o 

B«p0xt«d>hy Faaaaamx Buiar aad C-JVli,BBSBi^ 
JfaV*. BasaM«r»at-I«v. 

Saturdni, Fib. 15. 
Xbk ArroaNBT'CaNaBAi. •.XAznk 
Legacy duty— Domicile ((feffietr ia OfBadAtn 

CbtHipaay'* fsraiee. 
A captain Mtrviag <»ea* qfher Mmtiift iifiaaili 
IB the Mail bdiu died <A«re MssMc, Jot^ 
Ms ptrtonal titaie.tiiuate there. Ma uUm, 
who VMU aim rnident m the Bmt I»dim,tmklt 
letters of admimitration to hit eetale i^Oafn- 
per Indian court, collected and ai fc i iai i fcuil «> 
there, and inveeted thereeidue in btHafitU* 
bmnfit nf hereelf and the neiit t^ kin. Oair 
rtlum toSuatandthe took out teUereef ni aii n 
tration in the Prerogatite Court ^ diaitrhni 
ia order to recover 92/. arreart ^ payimUm 
inteitattle.eitale by the WarOffiee: 
Held, by Pabks and ALDBBSON,jBfi. Mai tfx'- 
minittratrix muet account for and fig/ irysv 
duty upon the eetate admi)u»terai as lit Aa 
Intuei, at well at upon that -portiom adswaaiiw* 
.ta thie country, (a) 

In this case the usual rule had been obtaaid bf 
Crompton, cidling on the adminitratrix to asooitf. 
/. B.Alcock now shewed canse. — The satta " 
the intestate was administered and appvprisMdia 
the Kast Indies. [Oonqi/oa.— jle was notistk 
service of the East-India Company. Pabo, B.- 
No. That makes the difference. Aldkbson, &7 
He was serving in the East Indies, and diedwitti 
the territory of the East-India Coiapany.] ¥<>' 
The admidistration was taken out here for tiie nk 
purpose of obtaining the errears from the War Ob*- 
[Faakx, B.— It is immaterial where tbe toot^ 
administiratioo. The question is, where the hadaB 
mas domiciled at the time of his death. 1 nna* 
that mnst be now considered as settled siaoe tie 
case of Thornton.} We contrad that this ti^ 
being the estate of a p«son dying in ladis, >* 
which was situate in that country, admiaistcndMo 
completely appropriated there, and broogfattotlai 
coantry not by the administratrix f u^ aonmiatt- 
triz, but as one of persons beneficudly entitled^ 
not liable to the duties imposed upon legadeasal 
shares of residue under the 36 Geo. 3, c. A 
[Pabws, B.— Was not the rule finally aettted B« 
case in the House of Lords that waa twice sqw 
—the case of Thornton v. The AAeocate-Gtaerdn 
There is a case exactly similar to tins. [Pxaai^ 
— Then it musthave one of tiie eari^ eases.] Istaa 
come to that presently. [Fabkx, B.— Of M*' 

(a) Tbed«>uigs,itwmbaobMrTCd,di&nftDB't)i^ 
the Honn af Iiotds, ia Jttormy O sawia t 

Digitized by 


Apkl 13, 18SI.] 






ibe earlier cues faare been orarrakd.] The fint 
one is the case of tioffmi y. Pahiie, 1 My. & Cr. 
59. [Parks, B. — Sorelr all those cases are orer- 
raled.J I do not beUere there is one of them orer- 
niled. [Aldbkson, B. — If the case in t^ Hous 
of Lords is to be regarded as Ihe ruling case, ymi 
nmst diatinj^b tUs (ma that. Pabxe, B. — ^Xbe 
Eonse of Lords took the advice of the judges, and 
tile judges gave their unanimous opinions.] I am 
smre of tfaat> but I do not oonaider that it was 
decided in that case that the question of domicile 
ma to be the rule in all cases. [Paakb, B. — I 
tlj^olc nofliing was more settled than that point.] A 
one approved by Lord Cottenham is on all tows 
with this— /ac/bow t. Forbet, 2 Tyr. 354 ; 2 Cr. 8c 
Jer. t82. [Pabks, B. — You do not contend that 
in this case an officer in her Majesty's service going 
to liw East Indies in kis character of oficer a»|iuree 
• domicile there?] I believe tt has been decided 
that a Queen's oAcer cannot acqoiie a domidie in 
India for the distribution of an estate [Fakuc, B. 
— And a Company's officer does.], but I do not 
know that it follows that the same domicile apriies 
for the payment of legacy duty ? [ALDiasoN, B. — 
Yes. How doyondistrngoishitbom rAouMOw'f case? 
nere the rule laid down distinctly is, that if a 
party be domiciled in England, &e accoanting is to 
take place in England as to property even in Rnasia 
or Austria, or any othn country, provided it be 
lierBonal property.] That case is merely the con- 
vene of Se EtBiH. [Aldxbjk>n, B. — ^The quesdon 
IS, where is the donuole now of this person? If 
jva make this nenon out to be domiciled in Eog- 
laad, T^onuotft case does applj;. Pakks, B,— 
It is the converse of the proposition in Thomtoa'i 
case. It was there held that if he was domiciled 
abroad, his personal property is not liable. Does it 
not foUow that the converse of the proposition is 
tme? In the case of Re Swia there was domidie 
in England and property abroad.] In Jackton v, 
FOrbti, the testator was a native of Scotland, and 
was at the time of his death seised and possessed of 
some real estate in the East Indies, and was tlso 
pooaeased of considerable personal estate and effects, 
all of which, at the time of lus death, were also in 
India. His executors were also tliere, proved the 
win there, and remitted home the estate. [Parke, 
B. — The case of Jaeiton v. Forbet came before the 
Coort of Ex. but before they had got the 
aarect role.] Bat they do not ovenmle it. In that 
case there was no dispute as to the domidie. It 
was pofectly well known there that the testator 
was a Ouen's officer. In the argument it is stated, 
" There is liere no dispate about an Indian domi- 
die, or an English domicile, acquired by a residence 
in India. Munro v. Dougtai, 5 Madd. 379, shews 
fliata Scotchman may acqtura a domicile by a local 
nddence in the East-India Company's service so 
as to make the Englidi Law of distributions prevail 
over the Scotch law, bat that u because India is 
juluect to English law. /it t/tie cau Ihere can be no 
Imaan domicile, but the damicilium originit only." 
ZIm note says, "the testator was in the King's 
service." This extract jhews that the question of 
donidle was clearly brought before the Court there, 
tmi that the testator was a King's officer, and the 
Coort of Ex. held that legacy duty was not 
(liable. "This case has been aigued before us by 
f™"t"' ; we have considered it, and are of opinion 
ihat the duties, &c. were uol chargeable in respect of 
aoy of the I«aciea, annuities, and shares of residue 
lt«,jpa.thtt«l bv the testator's will and codidl." Per 
I/mdhnrat, J. Bayley, }. Vaughan, J. Holland 
JrAJiKJt, B. — The judges give it as their opinion 
niat the question entirely turns upon the donucUe. 
AxniRsoN, B. — Wherever the domiciln is at the 
time, there the daty is payable if there be a duty 
Parks. B. — Lord Tindal, C. J. in delivering the 
opinion of the judges, says, "and as to the argu- 
meBta at your loraship's i>ar on the part of the 
Cnmn, that the proper distinction was, whether the 
4ittte was administered by a person in a representa- 
tive character in this country, and that in case of 
fadi administering the legacy duty was payable, we 
th^ it is a sufficient answer thereto that the 
fialnlity to legacy duty does not depend on 
the act of the executor in proving the will 
in this oonntry, or upon his administering here; 
the question, as it appears to us, not bdng 
srbethiBr there be administiation in England or not; 
Imt whether the will and legacy are a will and 
legacT within the meaning of the statute imposing 
Uw 4aty." Aldbrson, B.— The Lord Chancellor, 
» the oourae of the arguments in the case of Thornton 
V. Tim Advocate-General, says : " I consider that in 
an these cases domicile was the basis of the whole 
jndgment ; the only question was the effect of the 
other circumstances upon the rule of domidie." We 
had better consider when the domicile was. Do 
JOB dispute that it was in Rngiand ? Then shew as 
any «tiier oircomataBees which are to take this case 
ont of the rale of dosaidle.] The death, adminis- 
batioB, and approfnatioB abread are the droam- 
atanoes wiiiek take it oat of the rule. [Aj.dirson, 
So'SMwkatlietqrsiB the iiadgmeot. The Lord 

ChaneeDor : " I apprehend that that is an cntira 
mistake; that persoaal property in England foUows 
the law of the demidle, ana that it is predady the 
saeae as if the personal property had been in India 
at the time of testator's death." Now, take the 
converse of that. If the domicile is in England and 
the property in ladia, and if the property goes to the 
domidls, and not the domidie to the piopsriy, then 
the Indian property comes to England with the 
English demicSe, as the English property would go 
to India with an Indian domicile.] In the appeal 
in Jaekton v. Forbet, nom. Aitomey-Oeutral v. 
Jackton, 8 Bligh, N.8. 15; 2 CL & Fin. 48, 
the case was folly argued again by the Solicitor. 
General (afterwards Lord Cottenham) on tiie pastnf 
tha Crown. The Ciown pressed it on the oroand of 
administration, and said the Estate had seen ad- 
ministered in England, and, therefore^ the do^ was 
payable. But the Lend Chancellor reoommeaded 
the Hoaae to affirm the decision of the Coait of Ex. 
whidi iras done. Therefore the ease of tha AUtrmty, 
Oeiitral v. Jaekton, comes as the decision of toe 
Hoosa of Lords ; and in that case the domidie was 
dearly British, the testator being a Queen's sSser. 
Ha was in precisely the same position as tlus in- 
testate ; and unless the decision of the House of 
Loids be overruled by this Court, that case is bind- 
ing. The only distinction between that oaae and the 
present is, that there all the property was in India, 
whilst in this a portion was in this country. There 
is DO other distinction between them. The next 
case is AmoU v. Arnold, 2 M. & C. 256. [Alobb- 
aoN, B^— Lord Cottenham says: "When the Act 
spa^ of ' any will of any person,' and af the 
legacies being payable out of the penoaal estate, it 
most, I think, be considered as speaking of penoaa 
and wills, and person^ estates in this oountry."] 
Precisely ; and in tins case ndtherone northe other 
is here. [Aldbbson, B. — Then yon must add to 
that the number of opinions delivered by noble lotds 
in the House of Lords, shewing that the peraonal 
estate is always where a person is donioiled in poiat 
of law. If a man is doiniciled in this country, the 
estate is in this oonntry in point of law, thonrii in 
ftet it is a debt due from a person in India. Talcs 
Ike two oaaee toother, the dicta together, tliat seems 
to be. tlie decision at which the House of Lords 
arrived; and what Lord Campbell says is: "The 
trath is, my lords, that the doctrine of domioiU 
has sprang op in this coontry very leoendy, 
and tlwt neither the Legislature nor the judges, 
UBtil within a bw yean, thought much of it ; bnt it 
is a very convenient doctrine. It it bow wiell na- 
dersteod, aod I think that it sidvcs tiie difficulty 
wMfa whidi this ease was sunonnded.] In the same 
ease. Lord Lyndharst, speaking of the same doc- 
Mne of domicile, says thiat it has never beaa quar. 
rriled with, and is a known prindple of oor law. 
[Parkx, B. — Unluckily we have not, in Jadeim v. 
Forbet, the reasons of the Court. I have always 
nadentood, since that last case in the House of 
Lords, that domidie was the rule.] It may be, 
wbere the other facts and drcanitanoes do not-take it 
oat of the rule, as Lord Lyndbntst obaecvedin TkoM' 
ton V. The Adtocate-Gaural ; but here tlie death, 
administration, and appropriation abroad take this 
case out of the rule of domioile. In Arnold v. 
Arnold, wiiich was decided subsequently to Jaekton 
V. FOrbu, it is stated, — "George Arnold, a lien- 
tenant-oolonel in the East- India Company's asrviae, 
beiag possessed of a iarge personal estate, aitnate 
partly in England, but prindpally in the East ladies, 
wiiere he and his family then resided, by his will 
bequeathed legadcs to a large amooat. The estate 
was administned and appropriated in India by 
executors rendent there. A bill was filed here 
for the administration of the estate, and the Stamp 
Office, as usual, claimed tiie duty. The point was 
dedded on petltioD, the petitioners beiag the (Mn- 
tiffs to the bill, and their argomsnt was, that the 
question must be decided by domicUe. The SolidtoT' 
General (Sir E. RoUe) said : "The propaation that 
the domidie of the party from whom the property 
comes detenaines whether the legacy-dnty shall be 
payable or not is entirely new, and not only unsup- 
ported by authority, but directly opposed to it. 
There is no fiMndation in law for holding what has 
been assumed throarboat the argumeot on the other 
side, that a native Eagliahman may have a doaicile 
in the East Indies dutinet from and adrene to a 
domidie in England." [Parke, B.— In the case of 
Jackton v. Forbet, where did the Court assume the 
domicile to be ? Cromplon. — In the one set of ra- 

Krts domidie was not mentioned ; it is stated that 
was a King's officer in both, and in that oaae and 
in tlie other case of Arnold v. Arnold, it was said 
expraasly by the Bolidtor-Gcneral that the Crown 
did not put it on the qaeation of domidie. Pabkb, 
B.— They assumed that he had a fiweign domicile.] 
No. They knew that he had a Britiah dasniwie. 
[Parke, B.— In Mr. Jnstioe WiUians's book he 
considers that, in Jackton v. Forbet, the testator 
having been bom in Scotland, and having resided 
and died in India, therefore the domicile was in 
India.] He being a King's officer. [PAkks, B,>- 

Thatistrue; buttkaydidaotadva^tp tl^taicwnj 
stance, or dse they would have overruled Uie case pf 
R» Ewim.'] That case was dedded o.'^ the ground 
that everytUag was in England except the sitnatidn 
of tha property. Lord Brougham, m g.inng judg- 
meat in Tho Allomey- General r. JacktOn, refmp 
the hoMe to Tyrwbitf a Report. [Ai.deb.son. B. 
-i-It is dew diat tka judges aanuned. Li The 
Attomes-Oentral v. Forbet, that the t«,'t^ 
was domiciled in India. When yon ask v'bat 
the dedaion in point of law is, you must stand up on 
the ««""f facts upon wbidi the dapsioa w*it 
sopposed to be iouDded. Parke. B. — Yo« 
must look ta the ratio decidendi. Ai.dbb80M» 
B.— ^ thm mad* « miitakf in the case of Th* 
Atfornej/.Getieral v. Forbes, in supposing tliat th« 
domicile was in India, that has iiotliing to do with 
the ijuestion.] Lord Lyndhurst, who was Chan- 
cellor, in the case of Advocate- General v. Thornton, 
was Chief Baron of the Court of Ex. when Jaekton 
V. Forbes came before him with a British domicile, 
and it cannot now be said that he did not know in 
the House of Lords that the case of Jacisony. 
Forhes was one of a British domicile. He was Chkf 
Baron of the Ex. in the decision. [Aldebson, B. 
—I am not sure that it necessarily follows th»t 
he knew that Colin Anderson's domicile was not in 
India.] It was stated in the argument, and both 
sides agreed, that there was no dispute as to the 
domicile being British. This was clesriy under-: 
stood ; and Lord Brougham, in moving the judgment 
ef the House in the appeal, refers their lordaliipa to 
Tyrwhitt's Reports, which fully report the fact of the 
testator being a King's officer, and therefore havina 
the domicilium originis. In Arnold v. Arnold 
Lord Cottenham says : " The fact reUed upon ar 
subjecting the Icgades to the duty is, that the pro- 
perty was remitted from India to England, and 
administered by tlie executors in this country. This 
was an unnecessary proceeding. It may be said, m- 
deed, to be by mere accident that such a course was 
adopted ; for it is obnous that the executor in India 
having paid all the debts in India, and the executors 
in England having paid all the debts in this country, 
the former might, according to all the authorities, 
have avoided the question by remitting the legades 
direct to each legatee, or, instead of allowing them 
to pass through the hands of the personal representa- 
tive in this country, might have remitted them to as 
Scent of his own, with directions to pay over th» 
money to the persons entitled. When the Act 
speaks of any will of any person, and of the legadee 
being payable out of the personal estate, it must, I 
think, be considered as speaking of persons, and 
sills, and personal estates in tliis country, that 
being the limit of the sphere of the anaot- 
ment. It is clearly not applicable to the 
J-',:i-^t Iiulios. It is applicable to tliis country." 
[Aldbbson, B.'^Wbnredoss it appear in iite nmotf 
of tha ivpaal in The Attomty-Oentral r, Fmbui,- 
that kewaa an officer in the King's aervioe?] U. 
8 Bligb, N.S. 51. ]Ai.D«aBON. B.— Not in <3«>*t- 
V. fSuHi^. It does Bot appear to h«va been /ob- 
served.] Na, ^tut Lord Lyodbtint msnreasptip 
both SMOB, and it mnat hwe been wdl knora. 
[AuiBBsoN. B.— They moat have imaged tbat4jl 
the oases were Indian domiciles. Then, in f^mm 
the aaaa of a foieiciier with property in EqglaM. It 
implieathat they tnooght Colin Aadanoa woe, Mr 
the porpase of the BMBnent, a foreigner, and t^ 
only quastion was. whether his property beiac in. 
England made a d i ff swpc c .] Bnt the <Kt of ti» 
beiag ia the King's service was well koawR. 
[Pabcx, B.— I do not think they adverted«t 
drcniostance.] Not ia thededsion in TA* Advop^tr 
General v. rAoiMoa, I admit, because in CI. & Fin. 
they did BOtmMrtion it. [Pakkk, B.— They seemed 
to have sopposed that as he resided in India at the 
time, be waa domiciled in India, not adverting to 
the airenmataiMe that mere residence does not give 
a donidle. They do not appear to have adverted to 
the drcuBistance that he was a King's officer ; they 
assumed, that, as he resided abroad, he was domi~ 
died. If you assame thus much, that is clearly the 
ground on whieh it is to be reconciled with the judg- 
ment in the House of Lords, in Thomtoti v. The 
Adtioeate-Oeneral, and the approbation given to 
tiiat caae is upon the supposition that residence and 
domidie were tha eame thing.] The approbation of 
Lord Cottenbasn in Arnold v. Arnold, is not given, 
en that g^oonl. [.\ldkkson', B. — I think it is so.3 
Mo I for Lord Cottenham was himself present in the 
case, Hgning it for the Crown. [Parke, B. — Th^ 
never appear to have argued that he was still domi- 
dled in tadia, though living in England. Aloeb- 
aoir, B.— In Arnold v. Arnold, Lord Cottenham^ 
put the case of a Briti>li-born subject in the serviop 
of the East-India Campany's service, dying ia Ipdil^ 
as equivalent to the caae of Colin Anaerion, in the- 
jUlomty-Oe—ral r. Forbet, and, pattiiig tfiHn 
together, how can you doabt the Lord CottHtega 
though Cohn AndcMon was a Company's sOMrM 
All tha reports af the (Me vt Jackton w. Ftrkm. mi 
fiUgh's report af tite Attoruty-General v. Jacimm, 
Mat* diitinctif tlMtt Ae tottltar wM • Kioc'faMM. 

Digitized by 




Vol ir,— KW419. 




[PAmnt, B.— Tllejr dU not adrert to tbe dnnm- 
stance that ibete a a diatiiiction between a Com* 
pan/s officer and a King's officer, retiding and dying 
in the East Indies. They did not adyert to it. Tbej 
took it for granted that tiiere was no distinction. 
Ther assumed that becaoae he resided he was 
domiciled. Aldibson, B. — Snnxning the judges 
were to gire their opinion upon a sappoaed state of 
the law as not altered by a general or specific statute, 
and bad not adteMed to that statute at all, and had, 
given their iodgniant establishing a giren prindple, 
the mtio deciaendi being dear, if you point out 
afterwards that if ther had adverted to that statute 
tbegr would have deciaed otherwise, does that make 
tbtu decision on the grounik upon which ther put 
it, wrong in principle ; Would it not be quotable in 
a case if the statute did not ap|dy, just as well, eren 
tiiough it were a wrong daciaion? Lord Chief 
Barons are not inbllible on a sul^Jeot of &ct. All 
the judges are supposed to knoer the statute law, 
wUditheydonot] Bat it is dear that Lord Cot- 
tednm was perfectly oonvarsant with every (act. 
rA.Ll>BBSON, B.— He supnoaed that Tke AHorntf- 
Otmerml r. Jaehom was uka in all respects to the 
ease of Arnold r. Arnold. That was the case of a 
Companv's officer. He does not say that the dis- 
tinetam between a Company's officer and an officer 
i»ibe Queen's service, is utterly unimportant If 
lie had, it would have been very mndi in your 
bvonr.] It is quite evident that be considered 
it so. [Aldbrson, B. — Both those cases pro- 
ceeded on the ground of domicile, and that alone.] 
The Reports state otherwise. [Auubson, B.— Do 
{«a snimose everybody raads ever report ? I have 
a. ft Fin.'s Rc^x>rt, where it is not mcotioDed. 
Piuun, B.— It is dear that Lord Lyndhuist, when 
nfaning to those casea, supposes that the persons 
wen doaiidled in the East Indies. He says "it 
baa been decided in the case of British subjects 
domioBed in India." They have assumed that, be- 
oanse he was resUing there, lie wss domidlad there] . 
They have not adverted to the circumstance that hs 
went there for a teasporary purpose. [Pakkb, B.— 
After several oonflicting cases they have laid down a 
priadple which is very intelligible, and that is the 
principle adopted in the case of Tkomton v. Ti» 
Aitofte-Oemeral.—vMtaeiy, that personal property 
Boat be administered acooiding to the law of the 
oooatry where the possessor dies domidled (the old 
rafewas, that it was governed by the law of snc- 
eeasion), and goea to the person who would be 
titled. His will must be made according to the law 
of the ooontry where be was domiciled; and, there- 
fore,' in that case of Bamett, which waa before the 
delegates, of whom I was one, it was held that a 
wiU made in Lisbon, in the Enriish form, thosgh 
h i teqJtd to pass property in the EogUsh fimds, must 
be made before five witnesses, aooording to Oe law 
in lisbon, where he had been domfeOBd, «>d bad 
abjured tiie Protestant religion, and bring domiciled 
in Usbon, though he fully intended to return to 
England, he made his will, and the ddepOes held 
that that will was void, not bring made aooording to 
die law of the domicile, and that all queslioiis re- 
•peeling the penooal property of the deoeased were 
govaned by the law of the domieile. Now, after 
soiBe conflicting decisions, the Courts have arrived 
at the same condnsion with regard to the ooostmc- 
tion of this statute. As to the personal estate of a 
aanon deceased, it foUowa hia domicile. Here you 
BBva the ananimoos opinion of the judges in the 
easeof TleaMoiiv. TheAdvoeate-Oeneral.] I agree 
it is in the converse of the eaae, not in tiiia psrtiralar 
caae. [Paku, B.— The pondple bid down there 
and adopted by all the jutes, and an the learned lords 
—Lord Lyndhuist, Lord Broagfaam, and Lord Camp- 
boD— is, that the law of domieUe governs the question 
aa to whether personal property fa or is not subject 
to Isgacy dut^. If it is the personal propertv of a 
person who dies domiciled m England it is Hsble to 
duty.] You cannot leave 71* Attomqf-Gentrai v. 
JtdtMn out of your oonaideialion. [Pabkb, B.— It 
is evident that the judges never adverted to the dis- 
tinotion between a person residing in India at the 
time of his death, uid domiciled in India. After- 
wards, when the subject vras more fiUy considered, 
tba House of Lords gave judgment upon that with 
the aasistaoee of the iodges all concurring, and you 
wiU see that it lays down tlie great piincipte tint 
MBSooal property follows the domicile. Consequently 
it aftcts all the personal property of a person domi- 
cOedinEnglandatthe timeof his death, wherever 
that property is. It haf never been applied to the case 
of aa alien domiciled in Bnijand. In Mr. Justice 
Williams's book be considers that the kst caae in 
the House of Lords settles the point. Aldbbsom, 
B.— We should have no fixed law at all if we were to 
adopt your prindple of deciding cases.] 
Pabu, B. (without calling on the other side.)— I 
«oarider the prindple has been settled, and I think 
definitivdy settled by the Houae of Lords in thecase 
«f ThowuOH T. nt Aincatt-Oaurat. There had 
baa several caaes oonflictiiig before. There were 
Mas* casea before the caae oTiw Bmim, whidimade 

the duty dgiend upon the asset* bring recrived in 
England. In re JBiem the doctrine was first broached 
that the true criterion whether the parties were 
liable to legacy-duty was, whether the testator was 
domicQed in England, and that is tbe rule adopted 
by the judges in giving their opinion upon the case, 
snd all their lordships. Lord Lyndhnrst, Lord 
Brongbam, and Lord Campbell, put it upon that 
great prindple, that personal property is considered 
as bring in the place where the owner of it is domi- 
ciled at the time of his death. It is said that if we 
act wfoa this decision in the House of Lords we 
overnile another dedsion in the House of Lords in 
the case of Tke Attonuy-General v. Jaekton, at 
the case of 2^ Attorney-General v. Forbet. It is 
quite true diat if in the case of Tke Attomef- Gene- 
ral y. Jaeieon it had been hdd that at the time of 
the death of the testator he was domiciled in England 
those cases would be overruled. But it is per- 
fectly dear that they, proceeded in that case 
wUAtU aiterting to the distinction between resi- 
dence and domicile. If you look at the reports of 
thoae cases, nod the opinions afterwards given on 
those cases in the House of Lords, it is dear that 
they proceeded upon the assumption that because 
the testator retided in India at the time of his death, 
he was there domieiled. Tlie difference between a 
person redding abroad as an officer in her Majesty's 
forces, and rending abroad as an officer in the East 
India Company's serrice, toot aerer pointed oat. 
The case at Tke Attorney-General v. Jaekton it in 
trutk to eoniidtrtd, and is but another case foHing 
vrithin the same rule, and yon must treat it as bring 
domidled in India. The English statute not ex- 
tending to property in India, his property was ex- 
empt from legacy duty. Treat the case of Tke 
Attomey-Gtfiral v. Jaekton as it waa treated by 
the Houae of Lords in giving judgment in the case 
of Tke Advocate- General v. Tkomton, and it is 
exactly within the same prindple. The distinction 
p r e ss e d upon ns waa never presented. The ra<to 
ibeuiauii fells exactly within the same principle as 
Tkomton v. Tke Advocate-General. This gives 
a ven intelligible rule, though no doubt there seems 
a difficulty in applying it, because it is rather difficult 
to determine in some cases where a person's domicile 
wss at tiM time of bis death. There are no means 
of determining in every case, but sometimes it is 
perfectly dear. This is a case which Mr. Aicock has 
very properly not argued, that the intiatate's domi- 
dle was in the East Indies. If a natural-bom sub- 
ject, domiciled in Engjand before he goes abroad, 
enters into the aerrice of the Queen, and goes abroad 
at the Queen's command into foreign servioe, it is 
clear that hia original domicile has notparted with 
him. He goes for a temporary purpose, and is sup- 
posed to be there for a time, not to fix his permanent 
abode ^road. TUs officer wss no doubt domiciled 
in England, and that brim so, according to the pUin, 
intelligible rule of law laid down by the House of 
Lords, this is a case in which the Crown is entitled 

Aldkbson, B. — I am entirely of the same opinion. 
It is quite clear that the case of Tke Attorney- 
General v. Ario, and the case ofAmtMv. Arnold, 
were supposed to beby Lord Cottenbam identical cases 
in their circumstanoes. It is now said, that in the case 
of Tke Attorney General v. J>brbet, the party was a 
British subject, one of the Queen's officers, residing 
in India at the time of hia death. If so, he was 
certainly not domidled. Tk* Attomey-Gentral v. 
Foriet upon Tthe feels was decided wrong ; but the 
rule of law laid down in the case of Tke Attomey- 
Gmural v. Foriet was right, because the mle of 
law [laid down waa upon tk* tufifotilion tkat tk* 
party wat domiciled m India, and that the legacy 
duty in that caae could not attach upon property, 
whidi was situated in England at the time, because 
they said there that the property in England followed 
the domidle, or the residence of the party in India. 
At ^at time it was sunposed to be in India, and 
though it was in feet in Endand legacy duty was not 
payable. In the case of Arnold v. Arnold in like 
manner, legacy dutjr was not payable, and that was a 
right dedskm both in point of law and fact. There 
tba domicile was in India, he bring a company's 
officer at the time of his residence tboe. Therefore, 
when Lord Cottenbam . determined the case of the 
Attorney-General v. Jaekton, and the caae of Ar- 
nold V. Arnold to be the same, it it mate dear k* 
proetedtd on tke tappotilion tkat m ketk eatet tk* 
domieU* teat in India, and not in England. Then 
we have the aathorityof the House of Lords in the 
esse of Tkomton v. Tie Advoeate-Gtneral, and all 
the judges first and tbeir lordships unanimously after- 
wmds in so many words say that the domidle governs. 
That is the prindple that where a man is domiciled 
there is the peisonal property also. Now apply that 
caae. This person was domidled in England ; his 
personal property it is true, his local debts are debts 
paid in India, but the personal property foUowing 
nis domidle is to be treated as being in England at 
tfietimeof hia death. He was in England in point 
of law, though he was in India in point of fact, be- 
cause bis domicile was in England, though his per- 

aoar was in India. His penenal property, though ir 
Indian was legally in England also. Then the law of 
leipu7 daty applies to the property of all perwos 
hemg Engnah people, and the legacy duty must be 
paid. It seems to me therefore that the prindple is 
the case of T^toauon v. 3V Adeoeate-Genertl 
deariy governs the case. I cannot distinguish them. 
_ RtUe abtahttt. 

Vio-CaAvonioB Ensar Bauoa's Oonar, n fc it sd ty 

O. 8. AiurvTT, Bsq. Bwrister at Jmw. 

OousT or BunavRCT, Lovnoa, reported bj JoD i. 

VoHSLUiQCB, Biq. Barn«t«r.*t-Ijaw. 

Corat or EiXKBURCT, Dnauir, reported by J. Iiivi, 


Wtdnaday, April 2. 
(Before Mr. Commissioner FoNBi.ARttt>x.) 
Si parte BTrcs, re Bttdb. 
Cbiufi/ioaaf etrtifieate. 
Wkere tke bankrupt, immediately prerioat It Or 
fiat, ditpoted ef goodt for bittt ttkiek tvptarti 
to be frauduletU, but it wot not ettailitked tial 
tke bankrupt wat a partti to tke fraud, Ike 
eertUieatt uiat tutpendedfor two fean,- M tie 
condition wat annexed, "tkat if tke iankrat 
ikould pay to kit etttle tke value iff tk* bSk 
previout to Ike eertj^ieafe becoming due, kettifU 
tken apply for an immediate etrl^Seale." 
The fiat issued in 1843 ; immediatdr previoas t> 
thatdate the bankrupt disposed of gomis to s ooa- 
siderable amount to one Ewards, and in payment 
for the same he took bills of exchuige drawn or one 
Hart on Ewards. The bills were mshonoorad. It 
appeared that, at the time of tiiis transaction, Hsit 
was an uncertificatBd bankrupt, and Ewards has 
never been heard of. 
The bankrupt now applied (or his certificate. 
iMcat (counsd) fiir the assignees, and 
Parry (counsel) for certain crediton reading is 
the country. This bss been a (Hodnlent dispodtion 
of the estate in contemplation of bankmptry. IV 
bills appear to be merdy concocted by the bank- 
rupt and others (br the purpose of ddmfiag tbe 
creditors. It has not been shewn that such a per- 
son as Ewards ever existed. 

Lewit (solidtor) (br the bankmpt— It hss net 
been shewn that the bankrupt was privy to say Amd 
in the making of the bills; he may have beoad^ 
crived himself in the transaction eoopiained of. 

The CoxtnssioNEB, in giving J i M i g ia m t, ■■'■ir 
other remarks, said, a gross fraud has eridnttybestt 
committed in the concoction of these biSs; brt 
though it is not proved that the bankrupt was a paitt 
to it, yet it is qnite dear that at a tiaaewboiht 
ought to have been particnlariy vigilant, and deslng 
with a person whom he had good reason to dattua^ 
he waa guilty of such gross ud eulpaUe oe^goM 
in parting with goods virtually tbe propertya Ua 
creditors, as amounts as nearly as possiMe to a 

fiaudnlcnt making away with property; on flat 
ground I shall require bim to miake lepsraUoo. 
That whidi has been afforded by his brother, the 
other bankrupt,— the payment of a hundred poand^ 
— is by no means sufficient. I shall suspend Sohiaiea 
Byfns^s certificate for two years, unless in tbe mesa- 
time he restores to his creditors that which hasbeea 
so improperly abstracted from them, the amennt ef 
the two bills drawn by Hart and purporting to have 
been accepted by Edwards or Ewaids. In the enst 
of audi payment he may apply for an iiiiiiiwBsts 
certificate. ___^ 

Tketday, April S. 

(Before Mr. Commissioner Holrotd.) 


Ditekarpe 1^ bankrupt from cuttody — Praeiiee. 
Tke proper lime for Ike bankrupl't appUealimfir 

kit ditekarge from cuttody it ^fler Ike e kmei, 

unlett all partiet content. 

The banknipt, who was in custody under aa exe. 
cntion, appUed for his release. As agnn e s vren net 

HiUeary (solidtor) for bankrupt. 

Lueat, contriL 

Mr. Commissioner Holbotd. — Tbe object (rftbs 
statute in giving the Court power to disdia^p a 
bankrupt (rom custodj is to enable him to assist tas 
assignees in discovering and getting in the estate. 
The Court is, therefore, not in a podtion to decide as 
to the discharge till after the choice, unless all parties 
consent. Let the applicatioii stand over till asagoses 
have been diosen. 


Wtdntaday, March 26. 

(Before Mr. Commiasioner Stbtbn80N.) 

Re HiooiNSON. 

Practice— JuritdicHon qf O t m m iti ioner—Sae. 307 

— Renewed application for certificate. 
A eomtmtUmtr appointid in Ik* placed a f b r m ir 

Digitized by 


Araii. 12. 1851.] 





N»i nttu*. 

commitiiomtr htujiarMietUm to tutertain all op- ' 
pHealimu otfr vhiek hit predecet$ort had any \ 
mUhorUj/i and, Ihtrrfore, tchert a etrtifieale had 
leen rffiutd tf/ltr hearing by the former eommti- 
rioner, the iwio eomnuMiotur is competent to hear 
a reneved application for a certificate. 
But held, alto, that the With tectton of the Bank- 
ruptcy Law Oontolidation Act, tpeeUying the 
eatet in which tuch renewed application might 
he made, hat repealed the pnmtioni tffb sc 6 
Viet. e. 122, relating to tueh renewed appliea- 
tttna, and contequently that the Court hat no 
juritdietion to entertain any tueh application 
under Hreumttancet not tpecified in the Bank- 
ruptcy Law Contolidation Act. 
Tma was an application for a rehearing in the case 
of Mr. Jonathan Higginson, whose certificate was 
altogetlier refiued some time ago by Mr. Serjeant 

The •pplicatkm for s rehearing of the question of 
certificate was made on the ground that the certifi- 
cate bad been refused in consequence of the ab- 
sence of certun evidence which the bankrupt at that 
time could not brine forward, bat which he was now 
in a position to adduce. His Honour having heard 
die arguments, took time to consider, and uis day 


Hr. Commiarioner Stevbmson. — This is a petition 
by &e bankrupt, praying that a sitting may be ap- 
pointed for the allowance of his certificate. ThisaUow- 
anee has already been refused by my predecessor, Mr. 
Saqt. Lodlow, and it is to be obsenred that a memo- 
landnm of such refusal, nnder his hand, is on the 
file of die proceedings in this Court. The grounds 
of sadt rerasal are not mentioned in the memoran- 
dnm, but in this petition certun grounds are stated, 
whidi, it is alleged, are those upon which this certifi- 
eate was refused. The petition also states that cer- 
tain bets, which were not in evidence before my 
piedeceasor, and which in consequence thereof he 
refnaed to take into consideration, were material 
and generally in iavour of the petitioner's applica- 
tion, and if they had been fully before and explained 
to mT predecessor, the petitioner believes tiiat he 
would not have refused the certificate, and that diese 
(acta ate such as to warrant his renewing his applica- 
tion for hia certificate. The drcumstances of the 
erigiiial application for this certificate having been 
heud before my predecessor seemed to me at first to 
involve some difficulty as to my power of entertain- 
ing tlua application, for want of jurisdiction on that 
pwrnd alone, conceiving that it was open to the 
odlactiim that, by so doing, I should b9 sitting, as it 
wtH, on appeal from his judgment. It has, how. 
•vtr. been nr^ed, that the net of my appointment 
totUadistrict in the room of my predecessor would be 
to pv a ne jurisdiction to entertain this, as well as 
•WTOther application over whidi he had any an- 
uori^, and to as full an extent as he could have 
oooe had be remained the commissioner of this dis- 
W^ and, in {act, to deal with this case as if I were 
PcrsoDally representing him ; and after consideration 
I am inclined to take this view of the case, althoogh 
Icannot but feel that it is subject to great doubt. 
But supposing this view to be correct, the applica- 
bon is still open to the question of want of junsdic- 
Bon upon oOer grounds, which have been raised in 
opposition to this petition. These grounds are. that 
application can onlir be made under the recent Bank- 
n^tey I«w Consolidation Act, and in cases provided 
for by the 207th section— that is, when the Court 
«°«11 see good and sufficient cause to believe that the 
nfnal of a certificate has been obtained by false 
evidence, or by reason of any improper suppression 
of cvidaice, or otherwise fraudulently obtained, 
ytwo f which cases, it is contended, occur in the 
pnsmt instance, and of whidi there can be no 
doobt, nor, indeed, was any pressed on behalf 
Of the petitioner j but it is contended on his behalf 
uat the original hearing of the certificate having 
bean nnder a former Act (5 & 6 Vict c. 122), 
then in force, the authoritv to deal with this sppU- 
Mtkm wonld be nnder the jurisdiction conferred by 
uat Act, and which still remains for this purpose. 
Mwe first ^]ace, with regard to such jurisdiction 
Ifnng aothonty to rehear a matter of this descrip- 
ton, very great doubts have always been entertained 
whether the Commissioners of Bankruptcy have any 
meh aathority, and I am under the impression that 
■t is the general opinion of the Commissioners that 
ttey have no such |X>wer. In the case of Ex parte 
Burnt, mentioned in the argument, and reported in 
the sixth volnme of the Law Times, it appears that 
Segeut Gonlbnm considered he had no such au- 
tbnity, although he referred to a case in which, 
onder very special circnmstances, a rehearing was 
panted. But it has been shewn that my prede- 
eeiaor in one instance where he has refused a cer- 
tmcate has granted a rehearing, and subsequently 
Mowed the certificate, and that was sUted in the 
oonrse of the argument ; and even in this case he 
wnsidered that be was not precluded at some future 
time from rehearing the case. Admitting that this 
appUeition micht have been entertained ander the 

former Act, the question stiU remains whether 
the former jurisdiction of the Court can nowj 
be exercised in this instance. Now, unless there 
are any words in the Consolidation Act by which 
this turisdictinn has been expressly reserved, I appre- 
hend it is quite dear that all such jurisdiction has 
been repealed by that Act The first section, which 
repeals the former Acts, and which has been re- 
ferred to on this subject, contains only this excep- 
tion, which comes home as bearing on this point, 
viz. "except so far as may be necessary for the 
pnrpoae of supporting any proceedings taken, or to 
be taken, under and after the commencement of 
this Act by any trading, &c. or other proceeding in 
bankruptcy before the commencement of this Act" 
Now, it appears to me quite impossible to hold that 
this word proceeding," used in either part of the 
sentence, can have any reference to an application of 
the present description ; and, besides, it would not 
be a proceeding taken, or to be taken, under the 
Consolidation Act which directs that all proceediiws 
in bankruptcy depending at the commencement of the 
Act should lie proceeded with and brought to a con- 
clusion under the provisions of that Act, and which 
shews, I apprehend, the intention of the Legislature to 
be dearly, that any S^plication of an^ kind whatever 
can only be made under the jurisdiction conferred 
by this consolidated Act. Tlierefore, in whatever 
view the question of jurisdiction may be taken, in 
this case it appears to me that I have no authority to 
entertain this application, and I am bound, therefore, 
to dismiss this petition, which I do quite irrespec- 
tive of any merits of the case, and solely for want of 
jurisdiction. _^____ 

Sin 9rfii<. 


Beportsd by W. J. MnciLva, Esq. of the Inner Templa, 


Friday, fib. 7. 
(Before Lord Campbeli., C J.) 
Rbo. v. Hbwitt and Otbkrs. 
Contpiracy — Combination — Workmen. 
The Philanthropic Society of Coopert wot formed 
in order to relieve ilt memiert when tick, and to 
provide for their funeralt. One if their membert 
wat fined by them for working in a yard where 
tteam machinery wat uted, and upon nonpay- 
ment of the fine they acted in tuch a way at to 
pretent himfrom obtaining work : 
Held, an illefiul combination and contpiracy. 

This was an indictment for a combination by 
workmen, contrary to 6 Geo. 4, c. 129, and for a 

It appeared that all the defendants were members 
of a club or sodetv, called "The Philanthropic 
Society of Coopers. It was a benefit society. 
Hewitt was the president and Jack was the secre- 
tary. The sodety had an acting member in every 
cooper's yard. A man named Charles Evans was a 
member of the sodety. He was working in Mr. 
Turner's yard, hut, with the permission of Mr. 
Turner, he did four days' work li the steam mills of 
Messrs. Rosenberg and Montgomery, where steam 
machinenr was extensively employed for making 
casks. When this came to the knowledge of the 
committee of the sodety, they inflicted a fine of 102. 
payable by instalments, upon Evans, for working in 
a yard where steam machinery was employed. Evana 
refused to pay, and the other men in Mr. Turner's 
yard then left their work and refused to return 
while Evans was employed. Brans was, in conse- 
quence, thrown out of work. Each man who left 
Tumei's yard on account of Evans was paid nine 
shillings for his loss of time, by the committee. 
The fine was imposed in accordance vrith the rules 
of the sodetv. 

Wilkint, Serjt in addiesnng the jury for the de- 
fendants, contended that the defendants were mem- 
bers of a sodety which they believed to be for thdr 
benefit. They made certain rules and imposed fines 
for the breach of them. The ofience charged was con- 
spiring to do an unlawful act, but it was not an un- 
lawfulactto impose a'fine upon a member of the 
society for breach of one of the rules of the sodfty, 
unless the mies were unlawful in themsdves, or were 
made for an unlawful purpose. Tlie object of the 
defendants was to teach Evans that he had departed 
from his dutv to the sodety, and that he had broken 
its rules. The object of the Act of Fariiament was 
to protect the masters flnm the combinations of the 
men ; but here the masters did not complain, and it 
was, therefore, difficult to imagine that the statute 
had been violated. 

Lord Campbell, C.J. (to the jury). — It appears 
to me that this is one of the most important cases 
ever brought before a British jury, and npon its re- 
sult must depend very ranch the prosperity of the 
manufsctureis and the good of the operatives. But 
let it he clearly nnderstood that, whatever may be 
the tesolt of this case, such societies ss the prMcnt 

arenot in any way Qlegal. The Pbtlanthropie So- 
ciety is, according to its miss, a most lawful and 
a moat benefidaf institntkm ; the object of it is to 
take care of its members when sick, and to provides 
decent fbneral for them when they are called away, 
but it cannot he permitted that, under the guise of 
such laudable objects, the members shall enter into 
a combination or conspiracy to ii^re others. By 
law every man's labonr ia his own property, and he 
may make what bargain he pleases for his own em- 
ployment; not only so — masten or men may aaso- 
date together ; but they must not, by their associa- 
tion, violate the law ; they must not injure their 
neighbour ; tiiey must not do thst which may pnjn- 
dice another man. The men may take caie not to 
enter into engagements of which they do not ap>. 
prove, but they moat not prevent snother froiai' 
doing so. If this were permuted, not only would 
the manufacturen of the land be injured, but it would 
lead to the most melancholycoiiseqaencesto the work- 
ing classes. No doubt the defenumts may have been 
under a delusion that they were doing what tiler 
were entitied to do, but they must be instructed that 
the law must be obeyed, and that they cannot bft' 
permitted to iiijue their ndghbonrs in carrying out 
that which ther may eonmder to be a proteolion to 
themsdves. It has been stated by the witnsifc s, 
that a fine follows a man all over London and all 
over England. This shews the powers of the sodety. 
Let them have their rules, and let them act under 
them ; but if they are to fine for some nondescript 
offence, and that fine is to' follow a man all over 
England,— if the man is always to go about with that 
brand upon him. it becomes the more important 
that judges and juries should see that such aodetie* 
do not infringe the law. The payment to the men 
of the 9s. each for tiieir loss of tinie was taken ftoat' 
the funds of the society, and was a dear pervania* 
of its objects. Verdict— OuUtu. 

Lord Campbell, C. J.— This is a case in whidi it 
is right to pass judgment at once. The ofience is a 
moat serious one, and, if allowed to pass with im- 
pnnity, would bring ndn npon the trade sad nsan- 
factnres of thia oonntry, rad would involve in its 
ruin the workmen, npon whom the prosperity of tiliis 
country msinly depends. It dearty appears that tUs 
charitable instittttion, departing nrom its hndsbln 
purpose, was applied to, to prevent one of its mem- 
bers from exercising his free will, snd employing iiu 
industry in a way wmdi he thought most to bis ad- 
vantage. It is clear that the president sectelasy, 
and committee resolved that Evana should D» 
punished for having gone to work at the steam mills; 
that they unlawfully imposed on him a fine tat soi 
doing, and that thev proceeded by unlawful means to 
induce him to pay that fine. This is an offence wliidt 
the law must punish, and I hope it will be known to 
all these societies, that while uiey will be protected 
by the law when actiiig lawfiilly, the law will pnaish 
them when they interfere with the free will siMl th» 
exercise of the indnstry of their members. It is so 
offence for whidi they must be severdy punished. 

The defendants were then sentenced to 
terms of imprisonment 

The SoHcitor-Oeneral, B. Jamet, Q.C. and Anf- 
dietton, for tiie proaeention. 

M. Chamhtrt, Q,C. Wilkint, Setjt snd Wmrrm, 
for the severd defcmdants. 



Mtuday, Fth. 24. 

(Before Jektis, C.J.) 

The West London Railway Compant e. Tar 

London and Noeth • WxsTxaN Railwat 


Evidence— Agrttmenli — Copy—Admittiont—Ai. 

mittibtlity — Covtuant — Conttruetion. 
By agreement the Wttt London Railway wat to eretr 
the Oreat Wetter* Railwm on certain termt ; the. 
Wett London Company demited their railway, 
with " all their rightt, powert, and privilegetm 
relation thereto," to the North-Wetter* RtSlway 
Company. In covenant againtt the latt-mtu- 
Honed eonaany on the Itate for not ^SMently 
working the tm* I 
Held, that the agreement uat admittible againtt 

the drfendantt. 
Qiuere, whetheracopyijftueh agreement, admitted 
to be a correct copy, it admittible urithoui 
accounting for the non-production qf the ori- 
Semble, a eotenant in a lease qf a railway, that 
the leitea would, " at their own erpente, during 
the continuance qfthe leate, effidently work" tit 
railway, and that they would account to tht 
lettort for one-fourth of the grott reeeiptt i» 
retpect nf'pattengeri, goodt," a covenant 
to work tht line for pattengert at well at goodt .■ 
Qnsere, at to the printer meature tf damageifor 
breach qftueh covenant. 

This was an action of covenant on a lease. The 
lease was put in, and the copy of an agreement be- 
tween the West London Railway Company and die 

Digitized by 




[VoL W. — ^No. 4\a'. 

NMi raniSf 

House OF LORDS. 


Qnat WeMam Baibray Company was tbea ten- I Imt rtprettniation qnd cortcealmeul art precite 
dared. { in Ihtir charoettr. 

Bglm, Sent for the plamtiffi, contended that it . Mtkmtgh length of time be no bar to/rauH, yet it 
vaa adiaiMfliln withont pradodng or Rising notice to it a etrcamw^oiiee to be taken into comideration 
pnidaoe tbe original agtcament. The defendants iy tJk* Court injfomung ilt judgment 
kadadn " • 

tbe original agtcament. The defendants 
had admittnil that it wat a comet oopjr of the origi- 
■ai, which was nifficient to make it evidence in 
SUttem T. Pooley. The defendant had verbally 
mAtwatt^ l]ie coBtenta of a deed, and such verbal 
idaiiiMinnii wen^ld sufficient to prove the contents 
«tA» dead, as primary evidence ; here the defend- 
aatl, in writing, admit tbe contents of the deed. 
TIhw admit that this is a ooneet copy of the contents; 
aoaly, it most be equally admiasiole with the verbal 

Jkbvis, CJ.— It is a very doabtinl point; yon 
had better prodacetiie original, if poaaibls. 

The ati^mal was then {nodooad and tendered in 
mMmot i it oontaiocd^the terns and conditions on 
mbiA the West LoodMi Bailw^ was to cross the 
Gnat Western RaUway. 

8b F. Tkfiger ol^eetad to its reception. The 
4itedaiits have no notioe of the agreement. It 
OMaot be evidenoe against then. 

Bui**, Seqt.— Tbe railway is by tbe leese demised 
ts tbe defenda n ts, with " all their ri^ts, powers, 
tmk pavilages in relatioa therato ;" the defendants 
W tlMirfaii sssignnei of tbe agreement. 

JlBTis, C J.— Tbsfe most be in this case a qnas- 
tfoB of daiaage, and for that porpoae it will be im- 
i to ascertain what were the righta of tbe de- 
I im passing over the Great Western Railway. 
Bvidenet mdmitled. 

"Dm covenant on whidi the action was brought ran 
aa ioUovs :— " That the London and Bimundiam 
Bailwi CoasiMny" (called sabseqoantly theLon- 
4aa a^ Nottb- Western BaUway Company) "shall, 
aS tiMSr own expense, daring the continuance of this 
leasee sAciently woric and repair the railway and 
vnks hereby demised, and mdemnify the West 
faaidon Bailwsy Company against all liabilities, loss, 
ckaqea, and expanses, daims and demuids, whether 
iaeoned or sastainfd in oonseqaenoe of any want of 
«pair, or in eonsaqneooe of not working, or in any 
■■nntr connected wiA tbe working m tbe same 
■itaay and works ;" and it was also agreed to carry 
t» tbe credit of the West London lUilway Company 
am fcuitfa of the gross receipts in respect of " pas- 

magn, mods," &e. 

^fittt Derjt. < 

. contended that tbe proper conatiuc* 
tiea'af dais oonnant wask that the defendants should 
MIy work tbe line tat pasaangwn as well as goods, 
i it was not now open for die oonveyanee of 

, T km ifr, Q.C. ooolrii, urged that as there 

■e pssawiyw traffic before tbe leaae, the defend- 

I were not hound to carry paasangeis now. The 

re qui red them to do bo more than was 

J by the idaintiffs before Ranting the lease. It 

wna Bke a lease between landlord ud tenant The 
I were bound only to keep in repair, not to 
mprovesaenta. Hera tbe defendants were at 
to carry peaaennrs; bgt were not bound 
to do so. If they elected to earry pasaengers 
tbay naat pay one-foortit of tiie ptooeeds to the 
l^auitiSs. The definition of tbe word " efficiraitly," 
*M tbe point upon wfaicb tbe coastmotion of the 
covenant would torn. What was tbe definition ? 
Jbbvis, CJ.— " With.effect." 
Sir P. Tkeiiger. Q.C.— No doobt, tiie defendants 
most work tbe line with effect, or, in other words, 
nith profit and advantage. 

Jbbvis, C.J.— I shaU tdl tbe jury, that as the 
raflway is cuustruded for both p sm a i acri and goods, 
iiotii paasangan and goods ought to Se carried. It 
ia Bke a lease of two bininwari, one of them can- 
Hot be given up. 

Sic f. Thmifr, Q.C.— Tbe defendants cannot 
convenientlv carry bodi pasaengers and goods. It 
ia» single line. 
Jbbvu, C J.— I must stiU hold that they are 

I by the covenant to do so, and they cannot 
«tt«rwisa "efficiently work" the line. 

It waa sobaeqnently anranced tiiat a verdict should 
1m taken by consent, and that the construction of 
tiia oovanant and the astesament of damages should 
be left to tbe Court. 

Byfm, Seijt, £. Jamet, Q.& and Atplaad, for 

8d V. Titii0tr. Ckmtmia, Scrit. and BotiU, for 
ftn drfnnrlsnti 

. Barorladliy W.H.BBnrsr,Biq.Bairisl«r4(-I«w. 

Zn/jr awl ilM. 1,1850. 

flUXAasTR bivtirc or DonoLAs, and Othsrs, 

Appellants; Kibxpatmck, Hespondent. 

Vmd—Pttaiing—8iUina atide detdtfor 

mi»rtpre$iHtatiom ni eanemiment. 

Ottit wUt not ie set atidt ^fUr tHirty-Mfen and 

■ -tmrt ^ min t years^am tktir daim, on the grownd* 

Vmurt$r*itmta&an and ametalmtnt. tmien tie 

t in ti* flttuUmgt and proqfo/Jraudu- 

eontonani both' to thelatc qf England and Scot- 
Semble. — 7%at where a partfi eomtnunicatei the 
4^ec< nf one of tvio opiniont /riven by leparate 
comuel — with/mldinfl the one which ie oppoted to 
Me own interett in the tubject matter of the eate, 
it it both mierepretenltttion and concealment. 
A emgeetwral eetimate of what may be the value 

of an eitateienot a mierepreeentation. 
Coneealment, to be fraudulent and material, muet 
be a eoueealment qf tomelhing that the party 
eoneealing wae bound to ditelote. 
7S« reatone and argmnente of a peer on advieing 
the Houee to a particular judgment to be given, 
may be continued from one day to another. 
This appeal waa against several interiocnfors of 
the Lord Ordinary and first division of the Court of 
Session in Scotland ; by one of which the Court had 
reduced, or set aside, two several deeds of assifpution 
executed so far back as the years 1798 and 1800, in 
favour of the late Walter Irving esq. the one thereof 
by his sister, Mrs. Ann Burn, and her husband, and 
the other by three other sisters, vix. Miss Irvine, 
Mrs. Wardrobe, and Mrs. Kirkpatrick. No objec- 
tion had ever been taken by any of the parties to the 
deeds, altboufh they lived for many years after the 
deeds were executed. But the respondent alleging 
himself to be the representative of Mrs. Bum, Miss 
Irvine, and Mrs. Kirkpatrick long after their deaths 
and after the death of Mrs. Wardrobe, the other 
sister, and of Mr. Walter Irvine himself, in whose 
ftvour the deeds were Kvanted, and also long after 
all persons who could have given evidence as to the 
transaction were dead, proceeded to bring his action 
in the Conrt of Session in the month of October, 
1837, just then forty years— the period when the long 
prescription of the law of S»tland «ras on the point 
of expiring. 
The case was argued at great length by 
Sir Fitzroy Kelly and Anderton for the appel- 

The Lord Advocate, Jame* Parker, and Salt for 
tbe respondents. 

[The length of the judgment preclndea any note of 
the arguments being given, but the facts of the case, 
and'the general effect of the arguments are so fiilly 
stated in the most elaborate speech of Lord 
Brougham, in moving the reversal of the orders of 
the Courts below, setting aside the deeds, that it 
is the less necessary to give them in detail.] 
Lord Brodoham. — This case, my lords, brings 
before your lordships for decision the merits of an 
interiocutor of the Court of Session in Scotland re- 
ducing two deeds of assignment, or, as it is called in 
Scotluid. " assignation," one made in 1798 and the 
other in 1800, Mtween two parties, one of whom is 
Walter Irvine, the father of the present appelbmt. 
Lady William Douglas, and tbe others of whom are 
the four sisters of Walter Irvine— Mrs. Bom, Miss 
Irvine, Mrs. Wardrobe, and Mrs. Kirkpatrick, for- 
merly the Misses Irvine, and their representatives. 
And it is painful in the very outset of the remarks 
which T am about to submit to your lordships to ob- 
serve, that we are here deciding upon the validity of 
two deeds, made by and in favour of parties none of 
whom are here present, their interests being only 
represented by their heiis and representatives, for 
the parties themselves have long smce gone to their 
graves. The last of them died in 1829, others of 
them in 1824, 1825, or 1826, I think ; and the first 
observation which I have to make to your lordships 
will rest upon that circumstance. My lords, the 
deeds were sought to be reduced by proceedings 
commenced at periods of thirty-seven years and thirty- 
nine years respectively, from the dates of those in- 
stmments brought under reduction. Those two in- 
struments or assignations consisted of a family 
arrangement (upon which I shall say a word 
presently) between Walter Irvine, the brother, 
he and Christopher being the survivors of three 
brothers, Charles being dcad| and his four sisters 
(three of whom were then the unmarried sisters, the 
Misses Irvine), of whom Mrs. Bum was one. Miss 
Irvine another, Mrs. Wardrobe the third, and Mrs. 
Kirkpatrick the fourth. My lords, a large estate in 
Tobago had belonged to one of the brothers, Cbarka 
Irvine, who died long before the commencement 
of the suit, a considerable time before the execution 
of tbe second, and a little while before the execution 
of the fint of these deeds. He died in 1798; and 
questions of a complicated nature arose immediately 
after the death of Charles Irvine respecting the suc- 
cession to his property, for there were mortgages 
upon it to a considerable amount with other claims, 
lliere was a lunatic, a Miss Leith, who had interests 
or a claim, as it is called, on the estate, and there 
waa Walter Irvine, the heir-at-law to the real estate, 
sod who, by tlie law of Tobago, if Charles was 
understood to be tfaeie domiciled, had a claim also to 

a share of the personalty. There was likewise 
Christopher, who had a claim past all doubt to Im 
share, being the agent of tbe estate living in the 
island, and, I believe, domidled there, though that 
is immateiiaL Charles Irvine, the deceased, tD 
whom Walter succeeded as, was domi. 
ciled, as it appears, though that is not admitted, bat 
he rather appears to have been for six years, namely, 
from 1792 to 1798, resident in Scotland, being a 
native of that country, whither he had retniwd 
from Tabago, and where, without ever returning to 
Tobago, he died. At the late period to whidi I have 
alloded, namely, thirty-seven years after the bst 
of the deeds, and thiiiy-nine years after the frst 
bad been executed, proceedings were commenced in 
the coort in Scotland, out of whicb tlie jadg. 
ment arose, which is the subject of the p»- 
sent considemtion. Proceedinn were commeanf 
by an action of reduction of these two deads, 
upon the ground of misrepreaentation by Walter 
to his sisters, the Misses Irvine, or of fiando. 
lent concealment of focts within his knowledp 
from their knowledge, or both fraudulent miscpre- 
sentation and fkwidnlent concealment, whidi pastiB 
doubt if sufficiently averred on the pleadings, si^ if 
sufficiently proved in evidence would have bea 
enough to have called upon the Court to reduce > 
set aside the deeds. Tbe object of this nrrangegiat 
was, on the part of Walter, to obtain from his aslan 
the surrender of their right to thar abate of liie 
personalty of Charles thdr deceased brother, and tte 
question, and the only questton, is, as I h^ stated, 
whether in order to obtain this benefit far himseif he 
fraudulently misrepresented or fraudulently ooo- 
cealed matters to induce his sisters to enter into tint 
arrangement, and whether such misrepresentation or 
concealment, or both, operated upon them and gxra 
rise to their executing the two deeds in question. 
And here I must stop to remove out of the cause thi< 
which has not been dwelt upon except as a topic ia 
urgument occasionally, but which I consider, in &» 
circumstances of the case, to have little or no phce, 
namely, that this is in the nature of a bnHy snan|e- 
ment — for I conceive that a funily amngenest 
between parties who were treating really at siW 
length as these were, who were not upon good tarns, 
at least two of the sisters were not upon good tems 
with their brother Walter, has little or no pboe^ and 
above all where fraud is alleged. That, therelbie, I 
remove out of the cause. But, my lords, I oowoome 
to a consideration of the manner in which the Cmnt 
dealt with the case upon the pleadings. It appealed 
to their lordships, after argument, that them was 
sufficient ground for directing an issue and saxfing 
it to be tried by a jury, and firoB that dectsjan, or 
ftom the decision and the shape of die vettict no 
appeal lies any more than the motjoo for a new tnil 
wfaidi was subsequently made and refused, thenftite 
we have nothing judicially to do with that. Never- 
theless it is difficult for me in consideriDg this esse, 
and casting my eye back upon the course of the &• 
cussion on either side at the bar, it is difficult for me 
so regarding what has passed, and le gaidiu g tbe 
evidence, the mass of whu;h I now have under my 
hand to avoid expressing one word of reesC 
that snch a course was taken ; for here are Be- 
tween nine and ten hundred closely printed qoits 
pages of correspondence submitted to a jury, who 
through that maxe were to find their way, who by 
examining tbe pieces whereof that mass coDsim 
were to make up their mitads, and who, as the lesolt 
of that painful and hardly practicable examinatiaaa 
that laborious and hardly possible inquiry, were ti 
give their opinion upon the matter of fact snbmitted 
to their consideration by the issues sent to them to 
try. I had much rather that tiie opinion of the 
Court itself had been taken upon the subject than Oat 
it should have been sent to be tried by a jury. It is 
now too late to wish for that which did not tikt 
place. That which we are now dealing vrith is not 
how the Court thought fit to den] with the case litat 
at the trial, and next on motion for a new trial, as 
with neither the trial nor the motion for a new tritL 
have your lordships anything to do, but tbe indc- 
ment which they finally pronounced setting theoeeos 
aside, — and first, having a word to say with respect 
to the time which has elapsed ; I know not, howirre^ 
that it may not be more convenient that I shooM 
commence vrith what I have to offer upon the frame 
of the issues, and upon the forms of ike pleaffiiM. 
There were two deeds numbered 54 and 55 in OB 
process, or, as I see, they are called Nos. 57 and 58 
in my copy of the pleadings. I know not why, but in 
this they are called 54 and 55, being Mra.' Bura^ 
deed, and 'iiCat Irvine's, Mrs. Wardrobe'a, and Mif> 
Kirkpatrick's deed respectivelv. These deeds wo* 
the subject matter of the two issnes, and the ianes 
ate oonodved in tbe same terms, the material tibinc 
to consider being whether Walter Irvine did obtain 
(it is not even said " did or did not," so as to mak* 
it grammatical), the deeds in question, Nos. M and 
55, by fraudulent misrepresentation, or fraudulent 
concealment, from his sisters. Beyond dl manner 
of doubt this is an improper Ibrm of issue. It It 
improper for more ieas«03 than one, cadi of wUA 

Digitized by 


Apmi. 19, 1851.] 





woold be enongb to rapport its condemiution. It 
it improper to coaple together two not neceuaril7 
[ coaneeted or eren dependent israes. It is higMjr 
, Improper. iUo|ical, ud in every reipect miacliieroiu 
to pat • question on two separste matters, to one of 
, wUch an affirmatiTe answer might be returned, and 
, 'to tlie other • negative. It is asking a jurjr to answer 
, a doable qoestion, to one parcel of which they might 

a"jea, and toaoother, "nay," contiwy to every 
either of ezamiaioga witness or of interrogating 
ajoiy. Batit is improper on another Bccoant, and 
moat essentially and for paramonnt reason improper, 
■when yoQ consider that you are not asking the ques- 
tioii, la in the case of a witness of one indtviduBl bat 
of twelve, six of whom mig:ht say that the deed was 
obt^ned by fraudulent misrepreecntation, and the 
other six that it was obtuned by fraudnlent conceal- 
ment They altogether, the whole twelve, might 
join in giving that verdict which alone they gave, 
making no distinction, effecting no separation, re- 
faring to no diversity between the two matters, but 
a general verdict for the pursuer— meaning against 
the deed — not even answenng the question put, net 
even saying that it was Stndulently obtained, and 
without saying in what way, but a general verdict for 
-the parsner.loivinf theCourt to gather, and I believe 
this is not inconsistent with the loose and slovenly 
pnctice of that Court, that it was meant to answer 
the question put to the jury in the affirmattve geoe- 
nlly. How, then, can we gay that we have a verdict 
It aU upon such an issue sent to a jury, and such a 
general verdict letumed? I have no security. I 
•cannot tell; I do not mean to say that the &Hlt of 
the issue might not have been cured by the verdict 
of the jury. X do not mean to say that if the jury 
had letorned a verdict in answer to these two ques- 
tions they might not have fspt rid of the evU of the 
duplicity of these two questions, for they might have 
said if they had chosen, "we spedaUy find" so 
and so : then it must have been unanimous, and that 
would have taken away all risk of there being no 
verdict at all which exists in the present case. They 
might have said, "we find that there was fraudulent 
misrepresentation, and that the deed was obtained 
by that, but we do not find that there was fraudulent 
ooncealment;" or they might have said, " there was 
frtodulent concealment, but we do not a»j there was 
baudnlent misrepresentation;" or they might have 
said, "there was ooth fraudnlent misrepraaentation 
and fnudulent concealment," or they might have 
said there was neither. Therefore they might, by a 
apodal finding, have cured the radical defect of the 
qoestian put to them ; and why, let me ask, did the 
most able and learned judge who tried the cauae not 

nhis direction to the jury so to find ? If be bad 
so, I am far from meaning to tar ^at bewould 
^u.^ '"^j"? difficulty iuthe praseni case, bat 
at least he would have taken away from the court 
below, and from your hirdahips' deling vrith what 
waj done in the court below, the first of the great 
anncnitifs whuh meets ua and obstmcta our progress 
fa ^eavoarioff to see our way throiwh this case. 
He did not so tliink fit to do, and a geooal verdict 
was thas retomed. A motion for a new trial was 
msdefc it was refiised, and that oouldnotbe appealed 
*om. Judgment was then passed for the parsosr 
accoriing to the verdict, as tt»e Court deemed it and 
J'^^"^Ai "^ Jad^pnent was to rednoe the 
deeds, and that u the judgment and decree now 
o^^ipeat My lords, the next obeervatioo which 
I,h«ve to mak« is perhaps stiU more material with a 
vw_ to the ultimata dedsion of the caoae. The 
verdict bdng general, not finding whether it was 
miarepreqentatton or concealinent, or both: but 
oidy n^atarmg that it was neitherTit was for one or 
oOfr of those reasons, or both, I cannot tell whkih, 
ai^ cannot pretend to say which, that the jury 
loBiid for the pursuer), what positioB do we now find 
ounclvea in ? And what poaition were theCourt in. 
ttough they do not seem to have been aware of it ? 
NotwiOstanding the trial ordered, natwitfastandiiK 
the trial had, notwithstanding the verdict pro- 
nonneed, and notwithataading the rafuaal to have a 
new investigation, no valid iudgment could pass 
upon this reoord nnleas there was in the record 
tam^ to support the judgment. The verdict is 
•only aocahrr to the working out, as U were, of the 
purpose of the record. Then we are refemd to the 
mmmras and ooadaaoandeneek and whatever else on 
tbepart of the pursuer U said ts be hU recorded 
Matementof buowncaae. Well, but suppoea this, 
whjdi is poaeable, which might have happened in 
uus case, and maf happen in uy other ease of the 
*^ sort m which this doable mode of framing 
mesis adopted, rappoae one of the two matters 
were w^ rad Talidlr aliegadapoatha record, ao that 
U tto finding had been npea that there would 
nam been no doubt that jadgmast would have 
PM»ed upon it. Soppoee the otW mattar wen ao 
KtfiMrtk nixm tlia raooid that if a verdict had passed 
opraiL no iwdmaot oonld validly lava bsaDsap. 
Bivtod by tbatfiodhm: hne is a poHtioa w« are b. 
*tU aa^iwaa niiaiepi eseiil a I iun to have htsB daly 


•Oatad wtth anOeiaat spacificatiMb IwiUs«ppoaa 
^oaiwaliwit to hsiT« been not do^ alidad wA 

sufficient specification, or, which comes to the same 
thing, that it was concealment of that which the 
party had no obligation of any sort, either in law or 
equity, to reveal, and suppose the jury had found 
npon the misrepresentation in the affirmative, judg- 
ment, beyond all doubt, vroold have passed upon 
that finding. But then suppose they had found only 
npon the reoord, which vras invalidly set forth, it is 
equally dear that no judgment could have passed 
validly upon it. Well, then, where are we? We have a 
verdict, and we cannot say whether it was upon the 
misrepresentation, which verdict, if it had been upon 
that, would have supported the judgment ; or whether 
it ms for concealment, which, by the case I am 
patting, the hvpothesis I am making, wonld not 
have supported the judgment. Then how is the 
Court validly or safely to pronounce a judgment .* 
It is oontendiBd by the sppelUnts that in tlut case 
the only judgment fit to be pronounced woald be of 
an aitohnlor to aasoil the defenders, called into 
court upon such a record, and chaned only npon 
such a verdict frtim the conclusions of the summons. 
I have considered this point with great attention, 
and I have been referred to a great number of cases 
to shew that this is the common mode of pleading 
in Scotland. But upon looking into those cases, 
which I have attentively considered, onp difficulty 
occurred to me in all of them. For anght I know 
the difficulty was cured in the mode wmch I have 
described as that which might have been adopted 
here, namely, by finding specially ; I cannot teU, and 
I have asked in vain for a copy of any book in which 
any of those cases could be traced. Mr. Lefevre 
was kind enough to look this morning, at my desire, 
after I had read the cases yesterday morning, and he 
can find no book whatever in which we see the result 
of such trials. At all events, those cases (putting 
that circumstance entirely aside) were given to me 
with another view, not with a view to the ultimate 
effect of those cases, but with a view to shew that here 
the ordinary course of pleading had been porsued, and 
that it is the ordinary course of pleading I think 
is sufficiently proved. I think it is mala praxii. I 
hope and trust that it is a mala praxit which will 
be no longer followed, and I take leave most respect- 
frilly, but most eoinestly, to press npon the attention 
of their lordships in the court below the propriety 
of turning over a new leaf, and adopting a new and a 
more sensible, and ntional, and logical practice. I 
should have been in very great diffi^ty indeed upon 
this subject, if I had been of opinion that misrepre- 
sentation was validly set forth, and concealment not 
competently set fortti, or that misrepresentation was 
incompetently set forth, and that concealment was 
validly set forth. I should have been, upon the 
shape of this rerord, and its posture, in a most pain- 
frU predicament. I should then have had to go into the 
learning of those cases which were so much discussed 
here some six years ago, I mean in Mr. O'Cinoell's 
case in the case of the writ of error, in which your 
lordships decided sontrary to my opinion, contrary 
to the opinion of the great majority of the jadgea, 
contrary to the opinion of my noble and learned 
frnend. Lord Lyndhunt, with whom, by the way, I 
have consulted and considered those points in the 
present case, and who entirely agrees with me in 
opinion upon them. We were clearly of opinion 
that that case was wrongly decided, but we bowed, 
as we were bound to do, to the majority of your lord- 
ships, who decided in &vour of the writ of error of 
the plaintiff in error, and that decision was only dis- 
puted bv me on the ground of precedent and prac- 
tice. Your lordships, admitting the precedent and 
practice, held it to be mala praxii, and that it was 
fit to be reformed. But the rule to be collected in 
that esse is that in criminal eases, contrary to the 
opinion of Lord Mansfield, obiter, more or less cer- 
tainly, but a dictum deserving of the greatest con- 
sidention, and entitled to the most profound respect, 
iHU only a diehtm, not a decision of his lordship, 
that the rule is the same in criminal as in civil cases; 
I never doubted, Lord Lyndhurst never doubted, the 
majority of the judges never doubted that it vras so 
in a civil suit. If there are several counts, one of 
which is bad, and the others are good, and there is a 
general findioj; far the plaintiff upon the whole, you 
cannot apportion the damages between the two ; yon 
cannot say how much is meant to apply to the good 
and how much to the bad ; and therefore the whole 
is bad, and there is judgment non obitante veredicto. 
But now that is the rule applied to criminal cases as 
wellasdvil. The rale, therefore, ia genera] that there 
can be no judgment u|ion a verdict ao taken, either in a 
civil case or in a criminal case, for the reaaon which 
applies to this case. I have aaid that it gives me 
grrat satisfaction, after the most anxious attention 
which I have given to this cause, and to all the par- 
ticolan of iL which I shall now shortly go into, that 
I am not reduced to the necessity of deciding npon 
that ground, which might probably be enough to 
support the jadgsaent of reversal which I am about 
to move your lordships to pronounce, bat there are. 
injny opinion, other groimds on which ibat judg- 
jneot wul be sopfiortedi and. first, mv lords, I wSl 
again advott to the tana wUch hat here dapaed. 

^ Thirty-aeven years after the one deed vras made, and 
, thirty-nine years after the other, an impeadiment by 
I this action upon the allegation of fraud, is brought 
against those iostmments, and that firaud is imputed 
to a ^ntleman hitherto always supposed, as is said 
(but it is immaterial, I mnst assume it to be so), to 
be of fair and respectable character, and his nearest 
relatioiis are now to defend his memonN and deOInd 
theb own rights against that fool iSlpntation of 
fmud. of the worst description, for it was taking an 
nnfiiir and fraudulent advantage of his neatest re- 
lations, whom he was rather bound in honour to 
protect than entitled to deceive. My lords, no time 
will run as a Common Law limitation against fraud ; 
that must be on all hands admitted. No time, say 
the Scoteh lawyen. can be talwn as a bar to aa 
action of redaction like this, unless time and ae> 
quiescence be spedaUy deaded. A party meaning, 
say they, to avail himself of the topic of time, must 
do it by a plea, and must ei^r succeed altogether, 
or, I suppose, they mean to add, bil altogether. I 
cannot go so frir as that ; I too say, that no time vrill 
run to protect and screen frnud. I too say, tliat a' 
Court of Equity vrill overleap the barrier of time to 
get at the fraudulent parties and tJieir deeds, and to 
undo those deeds, and to prevent any one, whether 
accomplice or innocent, from profltiiig by the froits 
of fraud. I too say, therefore, that the length of 
time which has elapsed is not a bar to this salt. 
Bat that it should not enter into our oonsideratioB. 
that it is to be wholly dismissed ; that as a sugges* 
tion, it is to have no effect npon us in mouknng, 
as it were, in influencing the frame of n^iMl 
in which we shall be when we are to consider 
the rest of the case, either as a jnry upon tW' 
facts, or as judges upon the law ; to that pro* 
pontion I cannot assent. The parties are aB 
dead long and long ago. The party aeeoiad, 
Walter Irrine, died nine yean before the aotian waa 
commenced ; of the other parties vriio survived, the 
latest died four yean before the action was oob»> 
menced, and all their agenta and men of bnsiaeta 
are in their graves. Every one who, by parol teBti< 
mony, could have shed any light npon this traatao- 
tion, has gone. The action is broaght thirty-seveR 
and thirty-nine yeare after the fraud is alleged to 
have been committed, and forty-six and feity-eigU 
yean after that fraud is allegea to have beea com- 
mitted, the first trial by a jury t^es {dace, and tba 
matter of fact of the fraud is to be aubmitted to that 
jury : am I not to teke into aoeount this griaroo* 
injury to the party diar^ed ? I do not mean to the 
memory of Walter Irvine, and the feelings of hi* 
surviving family, bat to the parties charged, and 
sought to be ousted of their property under tbote 
deeds. Am I to dismiss that entirely from my eoo- 
sideration, and to deal drily with all the iaeto and all 
the law of this case exactly as if it had happaaad 
three or four yean before tlw action waa broaght, or 
perhaps as many months ? I cannot go that length ; 
on the contrary. I hold that it is most i ' ' 

I fearlessly lay down thk to be the law of Sootlaod, 
as wen as of England-^at in such drenmstaiioes of 
lying by, if there be no explanation, if there be bo 
satisfactory account of it. and that the party he** 
and his advison are well aware of that to|Me is clear, 
for they, in their summona, set fortii a reason to 
excuse it, which is no reason at all. that, ootil the 
Chancery suit was decided, which I <Hd not i' 
of finally till 1833, theyconld net bring the i 
Why could not they ? lley did not choose, bi 
they did not know exactly whether it woold be vrottia 
their while ; but that is not a reason to eseaae tba 
delay ; it is not even a topic of argament. I aay I 
lay down this feariessly as the law of ttasoootry 
and of Scotland, and of every country having ao aa> 
lightened and rational, and I may say adviliied, 
system of jurisprudence, that in aooh a case aa tfaii 
toe party must be held to the very stinted proof m 
regard to the &cts; but that is not aU. but thai 
aim in regard to the pleading, to the shaping of the 
action, which is his own choioe. though he caonot 
choose the fkcts. he shall be held most ricoreasly to 
the principles of strict logical pleading. It is a ease 
in which I would hold him as tight as if it were a 
question of an indictment for pequry, and assign- 
mentt of peijury were required niat A. B. did frdtohr 
swear, whereas, in truth and in feet, so and se. A 
is a case in which, as Lord Mansfield onee said when 
similarly drcumstanced, though not in respect of 
thne or of fraud, " I vrould hold the party to the 
ticking of a < and the dotting of an 4 m his pleadiags/' 
Unfortunately, my lords, this doe* not apnear te 
have been the view taken of it by the learned judfaa 
in the Court below. The Lord PiesideBt, who en- 
tirely disapproved of the verdict, and who akae of 
the four judges proooonced a very poaitivei e)aar» 
and nnhraitating opinion one way, reliea very raueh 
and largely upon the point of time. Lord Maekeniie 
alone of the other three, makes any alhmoa to il^ - 
and he aaya, " delay ia lesa material in this < 

Iweauae the evidence is dooamentary, and MfiriB 
teripla mtmel, and tiierefore this objection ia of a* 

S& farce." It might have ocenmd to hit Uad* 
p, as it does to me, that It might have been mi 

Digitized by 




[VqL 17.— No. 420. 




wboUy docomentarjr, if Uie action bad been broochC ' n and $o, and then lomething were (ot forth which ] Bora, which (tandt upon a tepanta groand. Win 

three or four rean after the alleged fraud was com' 
mitted. Lord Follerton lays nothing of time at 
an, thoagfa the Lord President seems to have 
thoiijsht it to be entireW dedaiTe ; at least tlie Lord 
President says it is sae& that it wonld be nothing 
bot a severe ecioiinal infliction, and it is a point 
wUdi Lord Maekeniie himself thinks it tight to 
deal with, "niis is wfaat they say upon tlie time, 
then i npon the case itself. Lord Jeffreys says 
. there is a great hardship. Bat of what kind? 
On account of the magnitnde of the snms and ibe 
Kpntation and character involTed? But he does 
not make the least mention of the greatest hardship 
of all, namely, the lapse of seven or eight and thirty 
years. These learned |adge«, I most say, tbougb it 
IS not now material, it la comfortable to think of it 
in the conclusion at i^ch I have arrived, and to 
which I wish yoor lordships to come, — one of them. 
Lord Mackensie, savs, " Looking at it ^toeethar, I 
cannot say the verdict is grossly wrong: I do not 
say if I had been on the jury I would have given the 
tame verdict, but I cannot say they are jnrossljr 
wrong." He adds. Lord Fulleiton says, '"niere is 
no dmibt that the ease in evidence is mudi weaker 
than the case averred npon the record, and he goes 
chiefly on the concealment, making little reference to 
the other point." Lord Jeffrey says, "on all grounds 
there is great room for diveraityof opinion. TbaConrt 
might differ firom the Jury, but that is not enough." 
Tmq he sums up : " I rather think that the impres- 
sion on my minn is, that the anangements were not 
bUj obtained." These tUngs go entirely to the 
ments of the case. In point of foct w« are only 
npon the record ; at the same time I feel gnat com- 
tort and satis&ction in lookio(| over the mass of evi- 
dence, and looking at these opmions of die judges in 
feeling pertiectly clear, that if I had been in the 
Court bidow I should have *jpeed with the clear 
opinion of the learned Lord President difiering, I 
vrill not say bom the very clear opinion, bnt from the 
Tety hesitating and hardly perfectly formed opiiiion 
of the other three jodges, who dissent, and only dit- 
lent so &r, without pledging themselves to any dif- 
fevmce upon the merits, as to say that they do not 
tUnk the jury were so dearly what they call groesly 
wrong as would jattif|r sending it again for trial. 
We now therefore some, my lords, to the leeoid, 
npoo which every thing turns, and as your lordships 
Mt npon some very important bnsiiiess at five o'dodc, 
uid I shall not be able by that time to finish what I 
have to add to my statement, which I thought it 
ven material to make fully npon the law of the case 
berore proceeding to what mnst be the ground of the 
motion, with wUch I am about to oonelnde for a 
lovarsal, I think that the mote convenient course 
vroahl be tbat I should finish any observations to- 
morrow rather than to-day. Therefore, if it is your 
lordships' pleasure, wewiuoondnde the consideration 
of this ease to-moirow ; the ease is one of great 
aazietv, and it is very fitting therefore that I shonld 
state the conclusion at whidiV have arrived. If I 
•honld not to-mocrow be able to move the judgment, 
I banre, in esse of acd^nt, annonnoed the condn- 
•ion to whidi I have come, as I did in that very ease 
of X«M T. Ini$tt, the inquiry having lasted twenty- 
iive day* before me. I would not expose the parties 
to the expense and delay of a rehearing when it had 
anived at the last stage. I shall thereiore conclude 
my observations to-monow, either at the nttiag of 
the Court or at the dose of the Coort, wUobever is 
most convenient to the parties, takinjf a course of 
which we have many examples. Lord Eldon in die 
Boritayh caae and others. Lord Eldon has re- 
peatedly broken off in the middle of a jodgmeot 
Furtier eotuidtretion pottpoued. 
Priday,AMg. 2, 1850.— Lord Bkodobam.— I had 
yesterday gone through the two important points of 
the lapse of time, and the state of the pleadingt, and 
it remains for me to apply the prtadple which 
I then laid down to wa» particiilar case, and 
to this paiticnlar record, when I stated my 
opinion with respect to llie record, the doable 
qneation involved in the issue, anil the single 
finffing fbr the purauer upon the whole matter, I 
might have illustrated it, as one or two special 
piraders with whom I have bad oommunication upon 
the subject have illustrated tt, by applying to it the 
lilies of pleading here. Suppose an action u brought 
npon a bond, and th« defendant, in order to escape 
Irom the obligation of his bond, sneeially pleads this, 
that it was obtained from him by the obligee, the 
plamtiff, by means of firaodnlent misrepresentation 
or fiandnleot concealment Suppose fraudulent 
Bdsrepreaentation is the ground or one special plea, 
and fiaodttlent concealment of another; and snp- 
pose the firaudulent misrepresmtation is stated 
validly and nnolgectionably— firandulent misrapre- 
■entation inasmodi as so and so was said or repre- 
■anted by the obligee contrary to the troth, and 
aontr ar y to his knowledge of what the trnth was,— if 
the veMict were npon that count, no question it 
wo«U stand for the defendant. But suppose there 
mi* another eoont setting forth, aa an exeose fbr the 
Bonpaynant, fr aad ul e n t esooealment, inasmadi as 

amounted to no fraudulent concealment, dther be- ! I have gone through those dilforent headi, I iliS 
cause there was no duty to disclose it, or because have exhausted the case. Now, mitu respect to tk 
the statement was felo dt tt, and shewed in itself | statements in the fifth, sixth, and seventh artida it 

that there was no fraadulent concealment, — past all 
doubt, no verdict could stand on that count Then, 
suppose a verdict were given npon both counts, with- 
out distinction, and the judgment were entered up 
npon that veitlict generally, without distinguishing 
on which of the two, or whether upon both, only 
negativing that it was upon neither, that would be this 
ease. Well, then, past all doubt, upon a writ of error 
thatcould not stand. Thentheqnestionwouldbe, whe- 
ther to give judgment for the pluntiff in consequence 
of the Mdness of the verdict and the judgment, or 
to award a repleader, or to award a vtnire dt neeo. 
A repleader could not be awarded, because it would 
be in favour of the party who had made tlie first 

tiie condescendence, if yon take the memorial wiaei 
is given in page 41 of thie appellant's case, it is fosai 
that the statement in article S of the oondeamiHiaae 
is not contrary to the fikst, when ounpled with «W 
the memorial disdoses, which is to be takeoMi 
communication made by Walter Irvine, anl M 
only as a oommanication in potat of fret made, b« 
as a communication set forth upon the pleadiiiptr 
have been made, and forming part and parcel, Oen. 
fore, of the alleged misrepresentation. Then cans 
the condeaoendence article 6, wheteia it is Hid da 
Walter Irvine stated himsdf on oath in the Coatrf 
Chancery in a proceeding in Chancery, the moctpit 
debt, as in 1797, amounting to 30,000/. ortiiBrir, 

fault in the pleading, and it would be contrary to all and that by the fhial report by the Master of Q» 

rules of pleadiM to award a repleader. A repleader 
is exdnded. Vnirt d» tuivo oould not be awarded, 
because it mnst b« npon the same record and the 
same issue, and aoa eonttat that the jury would not 
return the same verdict^ for yon have no means of 
compelling the jury to sepsnto the one f^m the 
other of 3>e issues and to return a special verdict 
Consequently tiiere mnst be in that case judgment 
for the plaintiff, that is to say, judgment against the 
plea — that is to say, judgment against the defence 
resting upon the ground of fraudulent misrepre- 
sentation or fraudulent concealment Now thatia 
just the case here, except that here it is the defendant, 
there it is the plaintiff ; because here it is the defend- 
ant who is claimiog the benefit of that role, there it 
would be the plaintiff claiming the benefit of that rule 
as against the plea in justification of nonpayment 
However, I have stated ahready that it is most satis- 
factory to me not to find that it is necessary to decide 
the cause upon that point also. I have stated enough 
with respect to the time. 1 have stated the prindple to 
be, of which there is no question, that the mere lapse 
of time is no bar in case of fraud. That time, for 
aoght I know, may, according to the Scotch rides, 
have been necessary to be pleaded and it is not 
pleaded. That it is in the nature of a plea of 

eery, it was subaequently asoertained "that it <• 
22.000/. with interest on 20,00W." Now, I U 
afterwards have ooeasion to refer to the asmoml a 
page 42 of this case, whieUi part of the ifitwiiit 
for the punoer and against the defender; I dd 
have to deal with it separately immediately, tia^ 
fore I need not enter ftarther into it now tku » 
state, npon the whole these, two articles (tkefU 
and sixth). When you take the stateoot ■ 
page 41 and the statement on page 42 togetbs, tiif 
do not set forth, in my opinloo, with any diiliKt' 
ness whatever, if at all, the charge of aHar^ 
sentatioii. Then we come to the aereath snide 
which I most s^ is a very e xtr a unli natr m, 
and calls for an exp re s si on st lent of a s tu uiri ii aa i 
on the part of the judge who considers it, .msSKt- 
ing the importance of the matter with which nai 
dealing, and the absolute neoesrity of some d«r oi 
intelBgible and oooaistent specification. "TYtmi 
Walter Irrine as having, or pretending, right to dt 
said moitgafe debt, was found by the M Uatr 
to have received payment of the whole at Oat i^ 
both the prindpal and hiterest out of the olita i 
the said John Ldth, being the prodnce of the oU 
and new Grange plantation prior to 1819." Medea 
years after the deed in quertion, and lie a to k 
, he is to be dtsqed iridi I 

m tbe nature of a . 
aoquieaceoce, or homologation, as it is called, with I diarged with presdenoe, 
acqniescenoe, that is not pleaded. Bnt although no 
bar, either here or in Scotland, although it may by 
the Scotch rules be necessary for the party to plead 
it in order to avwl himself of it as an answer to the 
action, it is still most material/ not only fer the 
jorv, and, upon tbe new trial, for the judges, 
with which we have nothing to do, npon tiie 
question of fact, but it is most material npon 
toe question of pleading also ; and, as Lord Muis- 

field said, in the case that I referred to yesterday, 

using the expression, it is a case in which, upon the That it what he is expeoled to hava hal % tae- 
record I would hold thejparty to the ticking of a f knowledge of in the year 1798, wiien he oUund 

foreknowledge, forsooth in the jmr 17S8 with k- 
spect to one, and in the year 1800 with leepect to 
the other— 21 yean and 19 y ea rs i m p e J t l w fr -of rtet 
was to be the ptodooe of tbe eropia thst nrr 
regaho' establisked and imifiirst onllnalim. amdr 
that ofa West Indian estate, where tfceeeae BO tons. 
does, wherstheraare no earthqaate^ vhere theie 
are no ehangea of weather, whan eiardu^i ii •• 
regular and mechanical as etock-wok, ai if,* *^* 
farm in Norfslk, or a fum in the ** - ' ~'^' 

or the dotting of an t. With these views let us now 
look at this caase, and I must say that it does not, 
upon the best oonoideration which I have been able 
togive to it, appear to me to be at all necessary to 
hold the party to that rigorous doseness ; it noes 
not appear to me to be at all neoessair, in order to 
support the judgment which I am amut to move 
your lordships to pronounce, to appeal to (he length 
of time which has ehuised, the decease of all die 
parties, tbe decease or all their agento, and of all 
persons connected with it, for even that de rtctnti, 
this record would not have been suffident, according 
to any doaeness and strictness of procednre to 
whidi the party might have been held. What I 
have to state resolves itself into five heads : first, 
the general allej;ations contuned in the fifth, sixth, 
and seventh articles of the Condescendence, but into 
which I need not enter so much at large, because I 
shall afterwards have to deal with the same subject 
matte: under the other heads ; secondly, with respect 
to the mortgage debt on this estate ; thirdly, with 
respect to the misrepresentation,— end hitherto I am 
npon fraudulent misrepresentation, — the charge that 
Walter Irvine represented himself as having given 
1,200/. to Christopher, whereas he gave also a bond 
releasing a debt; fourthly, the correspondence 
which took place with one of his listen with respect 
to tiie opinion of Sir Arthur Figot (then Mr. Pigot) 
and of Mr. Brown, an attorney, also stated as a mis- 
representation, partlya misrepresentation andpartlya 
concealment— a ooniDealment of the 27th of Apnl, 
when he wrote after having had Mr. Pigof s opinion, 
which differed from Mr. Brown's, and he gave Mr. 
Brawn's and not Mr. Pigof s — a misrepresentation, 
therefore^ but a concealment, in as fu- as having set 
Mr. Bniwn right upon the point of there Ming 
sisten as well as brothen, be did not, when be 
had set him right communicate that tact Also the 
conoealment that took place with respect to the 
transaction between Christopher and himself. That 
transaction nves rise to the two statement^ — tint, the 
allegation of misrepresentation, as if he had sidd he 
had given 1,200/. whereas he gave 1,200/. platibe re- 
lease of the debt due ; and, secondly, the oonoad- 

the one deed, and in die year 180O when he obtained 

the other. However, I dwell not npon thai, becagn 

of eoune the present respondent does aot neaa to 

say that It it apon that extraordinary riataaeiit he 

depends. And let me add another tUag ai&i*- 

spect to dieeardetsncss with wliich thess fkfUap 

are framed. One woaM hava thought that if pa 

wanl»d to diatge parties with a gross taai, 1» 

ought to have been a little more carefnL Whstii 

yon think of people who actealiy aivcr in thor laa- 

mons that the cssae of LtUk t. JH*aie wss onieJ 

by appeal to the Hoaae of Lord*, and dedM hf 

the House of L<*ds on the SOth of March. 18S> 

Nodihig of the kind. No appeal iraa nude, tier 

ought to have known that ; tney ongfat to hate is- 

formed themsdvea of that ; when diey efasigel thcr 

fellow Christiaiis, thair fellow men, with (laa 

fiands, they ought to take a Uttie tronbk to » 

what they are about, and espedally when ^ 

rely apon the Chuioerv proceedings as thor 

excuse, and say that until the Chautcery case <* 

over, tiiey did not choose to faring thii actiaa,> 

could not bring it or were prevented, which ii 

not true ; they were not prevented, they Sd vt 

choose to bring it tUI it was an over; theywaoKdte 

see what they were to gain by it, andhownabk. 

There was an appeal, no doabt, in tiie OiBaeaT 

Court I suffered under that appeal for twaatf^ 

days. That was an appeal, Mt not an tpfti 

carried, as the sumaaons indiatiasUy seta forth, ii B 

many words from the Court of Chancery to thr 

House of Lords, and decided in the Howe of Lo^ 

on die SOth of March. 183S. No such thi^; * 

never came near as; there waa no appeal ; it mass 

appeal from Sir Joha Leach, as Master of the BollS> 

to me, as Lord Chaacdlor, and I dedded it oa the 

SOdi of March, 183S. Ne donbt aboot that; ai 

that is die knowledge I have of this ease, and aUch 

has helped me not a Kttla in goiag throagh it Ul 

lords, I de not mean to say that goes to the qumtiw 

with whidi we are now dealing, Irat I giv« it in {M- 

ing, to shew tiie neat and ca lp a M e ca iul e — us s am 

remisaiiets wUw teeest to Imve presided over the 

wlMle of tliis extraoedinarT cue,—* ease, of aS 

meat of what he actually did give to Christopher fbr othen, wiiece time is material. — acase, of aUotiiani 
his share of the personalty. Lasdy, in the fifth requiring the greatest can and the araat delibenle 
place, we come to the deeid of assignation to Mrs. ' and caMOot dronmapeetioa. I now oome to ^ 

Digitized by 


Aymii;. 19. 1851.] 





House OF LORDS. 

ncond bead, which it the maiiigraaiid of tkednrge 
of miarepreaentatioB. Tluiti(inBHide6of theoon* 
lesoendeno^ to whidi I harealiwdy refecTsd, when 
Walter Xrwine is Bud, in oerteia praceedin(|i in the 
Court of Chaacaj, no donbt it wm bi« bnniiMf, to 
tiave stated, m repieaeating Charlw Irriiiek his 
S>rother> deoeand, themoitageddebtdae«t30,0(M(. 
or thereby. Now, aiion Hm I wonld nmaric, that 
if it was intended to cbMrge, as it ia, wilfol miarapre- 
sentation of the mortgage debU the obrions oonne 
^vas not to insinuate or leave room for inference, 
firom circumitances menly, bnt directljr to aver 
'that he. Walter Irvine, repreaented one tlunf , when 
be at that time, and lo representing, knew another 
tbinc to be the iact ; tliat he knanr the raise to be 
tiiis when be re p reaen ted it to be that j or that ha 
represented it as rae thing while he knew it to be 

another tbing. This is not dooet but things are 
stated from which it may be galhared inferentially 
that hia repraaentatioa was inomiect. Now, this 
is the very highest that we can pat the averments 
a^ namely, tliat things are stated from which 
it ma^ be gathered that Walter Irvine's repre- 
.aentationa were incorrect, and incorrect to his 
own knowledge. But when we talce all these 
accounts together the; do not even amount to this, 
for they end in averments which are quite destructive 
of the lallegation of misrepresentation. The allega. 
tion, taken altogether, is self-deatmctire as an allega- 
tion of misrepresentation, jost as if one were to sav, 
" You j^Mtend to rate .the valae at 1,000/. when it is 
in fact tirice 500/. and so you deceive." Bnt a state- 
ment that a thing is 1,000/. does not deceive persons 
when 70a aver, as the ground of that deception and 
misrepresentation, when instead of 1,000/. it is twice 
500/. That is self-destnictrre as an averment of 
ousrepresentation. Najr, in most cases there wss 
DO representation, bat only an estimate, coqjectutal, 
which of necessity nndsrvi termini was coinectural. 
Mow look at article G, and compare that article with 
the memorial ; there the mortgage debt is attested 
Xo have been stated at 30,000/. whereas the report 
of the Master found it to be 22,841/. Compare that 
with the memorial at page 42. " It sisy be further 
necessary to observe," — now this is just asmuch parcel 
-of the alleged misrepresentation as if it haa been 
contained in the summons or the condescendence, 
because it is imported into it by way of reference. 
Walter Irvine is con d escended upon as having made 
atepresentstion by means of this memorial— " It 
nwy be fortfier necessary to observe in resard to the 
debt doe from the satats of ttLr. Leith to Mr. 
Irvine, thmi the aocoaata of his intramissiolis are not 
yet finally setlletl, nor Is it ezpectsd they will but in 
the Cosrt of Cliancery ;" which proved too true, and 
they were not finally settled till the 80th of Match, 
1833. The balance due to Mr. Irvine was snniosed 
by himself to be 37,000/. or 38,000/. ; and from the 
before-mentioned tra n sac t i o n entersd into between 
Mr. Christopher Irvine and tlie attomqy 0^ General 
Leith, it win have been observed the apptsisa- 
ment of the estate of Old Grange amounted 
to 31,026/. 14s. 4d. and that estate was de- 
'Uvered over in due form to Mr. Irvine in 
part of his debt. Now let ns look at article 28, in 
page 18. These aflairs having not been acoanted, 
Walter Irvine, on the 29th day of Jaaaaiy, 1800, 
wrote a letter to his siitcrs, Mrs. Kirkpstriiik and 
Miss Irvine. This is the letter on which reliance is 
placed, as shewing misrepresentation, in which he 
thus mentionB the settlement he bad made with his 
sister, Mn. Barn, and his brothei, Christopher. I 
do not go upon that, becaase that oomai under the 
other bead— under the head of conceilment— at 
which I have not yet arrived; but the following is 
stated as the representation. In this letter, says 
the condescendence^ he, Walter, mentioned the 
mortpge upon the property in these terms. Now 
hers IS the representation, the inconsistency of w^ch, 
with tile ftct to his knowledge, is to be the ground 
of impeachment. We will suppose the Grange debt 
«ill to be from 15,000/. to 20,000/. ; call it 18,000/. 
Can any man who knows the meaning of woids, who 
a ever so little scouainted with the force of language, 
whether technical or in common parlance, fancy 
for a moment that this is a representation ? It is an 
ettioitte, and a very conjectuial eatieute, and an 
gtunate which leaves a large margin for coqjectnre. 
He does not tay it is 15,000/. ; he does not say it is 
18,000/.; he does not ray it is 20,000/. ; but be says 
4t II from 15,000/. to 20,000/. CaU it splitting the 
dnfoence, and inaccurately splitting the difiarence, 
18,M0/. : and how doea be prdace it i Not, it is so ; 
not, I tdl you it is so: not, I represent it as being so. 
we win suppose the Grange debt. Can any thing be 
more manifest than that that is any thing rather than 
• murepresentation? It is actually saying, "Put it at 
M much : I do not know what it is, hut I will take 
It to be so much ; it is from 15,000/. to 20,000/. ; 
nppouit to be 18,000/." Then it goes on in ar- 
ticle 29, which also refers to it— " And U regard to 
the Gnoge debt." The first part of this article re- 
Istea to the transaction with Christopher, which I re- 
Mrre for the next head of my argument i but this is the 
f*rttlist!Mfcntetbis representation: "Aadinrs- 

gMdto the Grsmre debt instead of 18,000/. tt 
estimated by Walter Irrine himself, indidally on 
oath, within eighteen months of the tune whoi he 
wrote this letter, at 30,000/." WeU, he might hsve 
been quite ri^t at the one time in estimating it at 
18,000/. and at the other at 30,000/. and a man's 
estimate at different times, varying from the one to 
the other date, is not proof that he made a de faeto 
representation at the one time, and that he it faeto 
knew it at that time, for he may have known it quite 
differently when in the Court of Chancery he cane 
to swear to it. The result, then, by these state- 
ments, so tsken together, and which are made as 
averments of misrepresentation, is this: — Walter 
Irvine estimated the debt at 18,000/.; he claimed 
30,000/. : he flilly and distinctly stated to his sisters 
that Mr. Leith or his agent, set it at 17,622/. in the 
year 1792 : he as fiilly stated to them that Charles 
Irvine believed it to be between 37,000/. and 38,000/. ; 
that is in the statement of the pursuer that he said 
so; he himself, in hia answer in Chancery, set it 
at 30,000/. and dumed that sum, bat in that Chan- 
cery suit nearly forty years after the arrangement 
with his meters, the amount was found to be iQ,841/. 
at which sum on the final hearing of the appeal, I, 
and not the House of Lords, determined it, and 
decreed accordingly. This is somewhat leas of a 
misrepresentation, therefore, than the case which 1 
put of the 1,000/. and twice 500/. ; it is rather as if 
the charge of misrepresentation were stating the 
1,000/. when the real value was' 500/. ; for it is aa 
allegirtioii that Walter Irvine had given in the sum 
of 37,000/. or 38,000/. instead of 22,841/. or some 
14,000/. or 1^000/. more againit himsdf than it really 
was, or than be could know it to be, unless he were 
gifted with a foreknowledge of my decree, made 
nearly forty years after his alleged miixepresentation, 
and nine years after he had gone to his grave. As to 
what he is averred in article 28 to have said in his 
letter of the 29th of January, 1800, it is pbinly 
not an averment that he made any representation i^ 
all for the reasons I have already given in dealing 
with that conjectural statement, that conjectural 
estimate, and nothing else, llirdly, the other 
charge of misrepresentation is, that Walter Irvine 
represented himself as having given 1,200/. to Chris- 
topher in his transaction or accounts with that bro- 
ther, and this is to found in article 28, at p. 16. 
Now let us see how that is set forth. It signifles 
nothing ;' what was the fact ? but let us see how it is 
set iMtn: — "I think it necessary to inform you," — 
now tUs is a letter giving an account after these 
events of tiieir having happened — " I think it neces- 
sary to inform you, the settlement I made with Mn. 
Burn stands thus : 100/. a year annuity to be paid 
on the joint lives of her and her husband in lien of 
her rights; to our brother Christopher I psid" — 
not I have bargained for or bought it, but " I paid 
12,000/. twelve months after he made the assignment. 
As for Mrs. Wardrobe, I never gave berafkrtUng." 
But ons^t not this to have been set fbrth thus : that 
he hacTsaid — " 1*0 our brother Christopher I paid 
12,000/. and no more, as a consideration for his 
share .'" It is not so set forth ; it is set forth—" To 
our brother Christopher I piud 12,000/. twelve 
iqonths after he made the assignment." He is not 
there alleged to have given the terms of his bargain 
with Christopher; he is not talking of the terms of 
the bargain ; he is saying nothing about the terms 
of the bargain ; he is stating the facts, that twelve 
months after, that bargain, whatever that bargain 
was, whidi he does not say a word of, he psid 
12,000/. to this brother, which is not denied to havq 
been the truth ; but in the other parts of the sum- 
mons and condescendence, it is, in fiict, stated to 
have been the truth : therefore that really and truly 
goes for nothing. Next come we to the grave and 
neater charge of concealment. Now, the case stands 
Ulus : — Christopher owed Walter mon« ; it is not 
ascertained how much ; it is called 5,000/. or 6,000/. 
bat that clearly means currency; )tis2,000/.or3,000/. 
cash. Christopher and he appear to have been, and 
they are stated — I am taking it only fnxa the plead- 
ings ; of coarse, I cannot travel out of them — to have 
been upon very cordial and amicable terms, to have 
lived upon the footing of affection in which brothers 
ought and generally do live ; there seems to hsve 
been little or none of that affection towards the sis- 
ters. Christopher having claims upon the person- 
altv , he , Wslter.Tiargains with him fbr giving no those 
olaims to him, Waltor ; and as to the bargain there is 
some little doubt upon even the pleadings, and I 
cannot go into the evidence, whether that debt was 
ever meant to have been exacted from his brother 
Christopher ; bat be that as it mav, assume that on 
the pleadings it is stated that he did owe him money, 
though that, like evenrthing else, is set forth rather 
inferentially than de faeto, as it ought to be in such 
a case, — assuming that he owed Walter money, and 
that Walter released that debt, and gave him 1,200/. 
besides, and diat there was added— Tor that is also 
stated in the pleadings— that he pressed upon him 
delicately, calling it a condition of the bargain, 200/. 
a-year for his Un, and lOOf. a-year for his surviving 
widow shouUl he pre-decease her, that that was 

added *» mm fratiai these was pciribly a tttda 
p i ea suie , bat at all events there is the transaction aa 
It stands between them. Now the charge of oonoaal- 
ment is this (and we are now apan oonocslment)* 
that he did not tell the whole of this transacdoa 
with his brother Christopher to his sisters, that he 
kepttfaeminigooranoeof it: and it is also set far& 
that Christopher, what is called, aided him in that 
concealment j it is distinctly stated tliat they arranged 
to conceal the transactioa firom the sisters, and the 
two brothers acted upon this arran^ment. Christo- 
pher aided his brother Walter in misrepresenting the 
nature of the settlement between them, and advised 
his sisters to trust themselves in Walter's luuids, and 
to confide in his generosity. Now, when a person is 
set fcrth as sa aooompUoe in a fraud as scceaorr 
to, and sharing in, the commission of a tKoa 
against his sisters, one expeela to see it set 
fbrth how he shared. The concealment of s 
transaction is intelligible, bat that the other party 
aids in the concealment is a most vwie and in- 
definite and ansatisfactory averment. It is not said 
how or in wh^ way, but at all events this is the 
averment, that the transaction with Christopher by 
which W^ter became entitled to Christophers share 
apon the payment of 1,200/. and releasing a debt, 
was not communicated by him, Walter, to his rister, 
Mrs. Bum, ortohissistar,Miss Irvine, or to the other 
two sisters, Mrs. Wardrobe and Mrs. Kirkpatrick, at 
the time or beAve the time when he obtuned from 
them the two deeds, from Mn. Bum the one, and 
from iba other sisten the other : and it is said that 
keeping them in igooraooe of the value of what hs 
was getting from them, for the argument is by war 
of inference only that Christopher's share was worth 
no more than theirs, and that if Christopher's shaie 
was worth the debt and the 1,200/. their share must 
have been worth the debt and 1,200/. It is not 
denied that he told them of the 1.200/.— that is ad- 
mitted, — but it is sud as one of the charges that he 
did not tell them of the release of the debt, that he 
concealed therefore a part of the transaction. A 
concealment to be material must be a concealment 
of something that the party concealing was bound 
to tdL It is perfectly evident that if I go and bar- 
gain to buy a property with A. B. and if the person 
with whom I barpin, the owner of the property, has 
before tliat had an offer of 1,000/. when he asks me 
1,500/. and, to pat it stronger, if be bad hawked it 
in every part of the land-market into which he could 
find access, and has found no person to oflbr him 
more than 1,500/. and he asks me 2,000/. I hsve no 
right, if I give him the 2,000/. to bring him into a 
Court of Equity as having deceived me on the value 
of that property by having ftiled to inform me that 
othera had onlyoffsredhimfor it 1,500/.; that he had 
tried to get a better price for it and had friled to get 
a better price for it; and that yet he made me 

Ey 2,000/. for what he himseu ought .to have 
lown he had never been able to get above 
1,500/. for. It is a mode of estimating the 
value of the property which lie has taken him- 
self; it is a mode of estimating the value of the pro- 
perty which does not bind him and doea not benefit 
me. It might be his perfect right to make me pay 
2,00(1/. for wliat he had not been able to get 1,500/. 
He had no duty whatever either at law or 
morally to tell me what he had done. His conceal- 
ment of what he had done— his withholding from ma 
the knowledge of what he had done— is no argument, 
even much less, is no ground, of eqiiitable relief 
against him for a fraudulent concealment. It must 
be a concealment of something which he was bound 
to dbclose. And Walter Irvine, past all possibilitj- 
of doubt, was not bound to disclose what had taken 
place between him and his brother Christopher- 
Bot observe I am patting the case lower than the 
bet, because the fa^, as set forth in the record, ia 
this 1 that the brother did not stand in the same rela- 
tion towards Walter Irvine in which the sisten stood. 
The brother's bargain with Walter was made np 
partly of a claim of right, and partly of the favour 
and Doiwty of Walter. Walter was so fond of his 
brother that he not only at once released the debt, 
and gave him 1,200/. whether it was worth that or 
not; but he pressed upon him ; he insisted noon it, 
says the averment in the condescendence; he in- 
sisted upon his taking 200/. a year for himself, aad 
100/. for his widow, should his wife survive him— all 
owing to kindness and favour towards that brother 
Christopher. Did the sisters stand in the same 
position? Was what passed between Walter and 
Chriatoi^er any rule for what should mu between 
Walter and them ? No such thing. What passed 
between Walter and Christopher stands upon its 
own footing, and is totally^ independent of, and 
necessarily unconnected with, what was pass- 
ing between Waiter and his sisten. Therefbre, 
I say that this is a concealment of that whidi the 
party was not bound to tell, it amounts to absolatdy 
nothing whatever material that is alleged thus to 
have been concealed. I should say that it ought to 
have been set forth a great deal more parficularty, 
even if it had been ao, than it is in the 13th, 14th, 
15th, 16th. and 17th articles. But not a word of 

Digitized by 




[VoL 17. — ^NTo. 420. 




all this, observe, appean opon tlie sammons. Now 
the summons onght to contain that which the con- 
descendence specifies more minnteljr, but here tliere 
is no generality irhaterer under which this can come 
except the general charge of fraudulent concealment. 
It should have been set forth that certain things 
passed between Walter and Christopher, which be 
was bound to communicate to his sisters, and did 
not communicate to them, and the not communi- 
cating of which was fraudnlent. The statement is 
not by any means so, but it is far more precise than 
that of misrepresentation, with which I have dealt. 
lict us take that statement, therefore ; let us pntit'as 
high as we can ; and, admitting it to be validly al- 
leged, let us see whether, when taken altogether, it 
amounts to a concealment not only of that which 
was material as tending to the price of the deeds, 
tbe making of the deeds with his sisters, but whether 
it is a concealment of something which they had a 
right from him to know, and his withholding of which 
amounted to concealment fraadolently done. In the 
fourth place, I come to particle 23, on page 17, and 
which amounts to this, that Walter had oeen con- 
sulting with Mr. Pigot, afterwards Sir Arthur Kgot, 
who "advised him that the personal 
Bcended to the nearest of kin, brothers and sisters," 
that is, not to Walter himself, provided the party was 
domioled in Scotland. Hiss Margaret Irvine had 
applied to Walter for some information as to 
Charles's succession, in which she and her sisters 
Uiought they must have an inta«st, and requested 
leave to wait on her brother respecting this business. 
Walter, on the 27th of April, returned the foUow- 
jnjf answer: — "Mr. Irvine begs leave to acquaint 
IGss Irvine that all persons who had claims 
on the estate of the late Charles Irvine, were by 
public advertisement directed to lodge them with 
Mr. Charles Stewart, W. S. which he deemed snffi- 
dent notification, but for her more immediate satis- 
faction he begs leave to transmit a mngnfih of an 
opinion he omy received yester^y nK>m an eminent 
solicitor in London. "The whole of the nal estate 
descends to the heir-at-law, who is his next eldest 
brother, if he died without issue, and no will and 
the personal estate equally divided amongst his bro- 
thers.'.',' I have yet to lou-n that a person receiving 
an opinion from an attorney or counsel is bound to 

?ive that opinion, and to give the case upon which 
hat opinion was taken ; for that is applied here by 
the usual mode of pleading followed m this extra- 
ordinary case by inference and insinnation, and not 
directly s it is implied that he ought to have given 
the case, as well as the opinion. Mr. Irvine, that is 
Walter, does not vouch for this (pinion being the 
law. There is no verv great misrepresentation even 
of the law. Those who think themselves aggrieved 
ni->y have their recourse how they may. " Ifyon are 
dissatisfied with Mr. Brown's opmion, whom I have 
consulted, yon who have not seen my ease, and wliich 
case I do not choose to shew yon, and which I am 
not bound to shew yon ; if yon choose to do so, get 
another opinion— a better opinion; do not take 
mine, for I do not vonch for its being the law, and I 
tell you nothini; of the facts upon which it is given." 
The opinion without the case certainly, or the case 
without the opinion is not worth much, but a man is 
not bound to tell his case any more than he is bound 
to give the opinion. He says " I will not tell you. 
I will not vonch for its being law, and the case I will 
not shew yon at all. Those who think themselves 
aggrieved may have their recoone how fliey may." 
That is to soy, " Yon know there are sisters as well 
as brothers ; go and tell tbe facts, and get as many 
more opinions as you choose of the counsel yon like 
best. In the mean time Mr. Irvine," that is 
Walter, " does not consider himself answerable 
in any sfai^ further than to secure his own 
. rights." Beally I think any thing less Uke a 
precise averment of misrepresentation, even as 
fiur as we have gone, I have hardly ever seen. 
Bat now the chugeis partly insinuated and partly 
stated, and it is this, that he had consulted 
Mr. Pigot, and toU Mr. Pigot there were sisters 
H well as brotheia; that he had consulted Mr. 
Brown, or got an opinion from Mr. Brown, who 
only knew of tbe brotliers, and not that there were 
nstersj and therefore it is inferred (this is only in- 
ferential, it is not stated) that Mr. Brown had been 
told by him that there were no sisters, but only bro- 
thers ; and it is inferred that he tells the opinion of 
Mr. Brown, which does not mention sisters, and 
that he does not tell the opinion of Mr. Puot, which 
mentions brothers and sisters. That is the charge. 
Ilierefore the gist of this charge is, that he repre- 
sented the law to be beneficial, a division to bro- 
thers and not to sisters, having got that law from 
a lawyer who did not know that there were any 
sisters, and who, if he had known that there were 
listen, would have sud, as Mr. Pigot did, that it 
must be divided between brothers and sisters, and 
that he did not tell the whole of Mr. Pigof s opi- 
nion, but only Mr. Brown's. Now as it stands, and 
without more, I do not think there is snfficient to 
wanant the charge. But be that aa it nay, it is 
completdy contradicted, because we are to conple 

with the averments in article 23 the state- My lords, T come, therefore, to the condnsian liat, 

ment in the memorial to which we are re- upon this record, no judgment can pass to sostasi 

ferred at page 42, namely, the second page of tbe these charges. I come to this other conclusion, thit 

memorial. " If Mr. Charles Irvine," now this is judgment of abtolvitor must be immediately passed. 

Walter's representations to the ladies, " If Mr. 

Charles Irvine is considered to hare died domiciled 

Scotland, then his personal estate will 

divide betwixt his youngest brother, the said Chris- 
toplifr Irvine, and Marp;aret, Eleonora, Isabella, and 
Ann Irvine, his four sisters ; but should Mr. Irvine 
be considered a West Indian, or not to have been 
domiciled in Scotland, then Mr. Walter Irvine, tbe 
heir, will also come in for a share of the personal 
estate, and which, so far as had been learned, vrUl 
consist of all crops off the ground in Tobago, in the 
storehouses there, or on its way to Britain, all debts 
due in the said isUmd or elsevrhere, by bond, mort- 
gage, or otherwise, to the estate," together with all 
the other circumstances ; and he sets forth a great 
number of rarticnlars of very valuable property. Is 
that concealing what the law was, that the sisters 
were entitled as well as the brothers ? On the con- 
trary, it states it most folly and most correctly. It 
states it upon the supposition of Charles having died 
domiciled in Tobago, which Walter, for his own 
interest, always oontnided he had ; it also states it 
upon the supposition of the hct, in my opinion, 
contrary to Walter's opinion, that he had died domi- 
ciled for the last six years, from 1792 to 1798, in his 
own country, Scotland; and it states that in the 
one case he, Walter, would share in tbe personalty 
as heir-at-law, and that in the otlier case he would 
be excluded, and the sisters, wiUi the yonn^ 
brother, would take. That is just the Tenr thmg 
which Mr. Pigof s opinion told him, which he is 
charged with concealing, and which Mr. Brown's 
opinion did not tell him, and which he is charged 
nth giving them as a mi s repr e s e ntation. The 
memorial to which we are referred, a* parcel of flie 
representation, states tiie very thing which ^ey say he 
onght to have stated. But niat is not M, nor nearly 
all, for there is what puts this part of the case out ot 
court more signally than the rest, In order that 
the misrepresentation or the concealment (I care not 
which, this charge is made up of bofli), may be of 
any avail whatever, it must be doltu elanu locum 
eantractui, it must inure to the date of the contract. 
If one party misrepresents or conceals, however 
frsndulently, however wrongly, and howeverwicfcedly, 
to another with whom he is treating, and if ttat 
other, notwithstanding^ the misrepresentation, As- 
covers the truth, notwithstanding the concealment, 
gets at the fact concealed before he signs the con- 
tract, the misrepreeratation and the concealment 
go for just absolutely nothing, because it must be 
doltu clanu'Jocum eoniractui. It is of no avail if the 
party has, in whatever way, became acquainted with 
the truth at the time, bnt mneh more so if he shews 
that he has become acquainted ^with it in the very 
deed which is said to have been obtained from him 
by the party misrepresenting or conceding. Now, 
this very deed (I need not raid it) contains a distinct 
statement both of tbe one and the otiier of the 
sisters having clumed ouoft txteuton daihe, and 
next of kin to Charles Irvine, in Scotland, at Edin- 
burgh, on the supposition of his having died domi- 
ciled in Scotland. There is an end, therefore, en- 
tirely of this head of misrepresentation or con- 
cealment. Hitherto I have been deaKng with tiie 
deed No. 55; it is called 58 in one case and 55 in 
the other. I have been dealing with the question as 
regards the Misses Irvine. We now come to that 
with respect to Mrs. Bums, which need not detain 
us so long. The misrepresentation there is in 
article 19. "The first of his sisters with whom 
Walter Irvine affected a settlement was Mrs. 
Bums, who had married a dernrman. Tleae 
people appear to have placed imphcit confidence 
in Walter Irvine and his agent Mr. Stenart. 
Mrs. Bums "—here is' the allegation of Walter's 
fhiudulent misrepresentation to Mrs. Boms, and 
concealment partly. " Mrs. Bums having applied 
to Mr. Stenart for information as to the personal 
succession, Mr. Stenart, on the 6tii of June, 
17%, wrote to her a letter, in which he represented 
it as nncertain whether the personal estate irould be 
equal to pay the debts affecting it. This appears to 
have been the only informatioB fbmished to these 
simple-hearted people before they agreed to assign 
over their rights to Walter Irvine.' Then comes 
the offer made by Walter. Is this a misrepresenta- 
tion of Walter Irvine, or a concealment of Walter 
Irvine? It is a concealment of Mr. Stenart, and 
they attempt to bolster up that by the immediatdy 
preceding article 18, saying, that he did not tell Mr. 
Stenart the whole. He was not boond to tell Mr. 
Stenart the whole, if he did not choose. But it 
ought to have been alleged that Walter Irnne had 
by his agent misropresented, and that he had told 
his agent so to misrepresent ; for as fraud is never to 
be presumed against a man, much less is the mis- 
representation of his agent to be set down to tiie 
debit of his account as fraodoiently misrepresenting 
himself. Nothing can be more clear than that that 
fifth and last head of this case k qoite ansappottd. 

assoilzing the defenders fivm tbe condnsion^ of i&e 

summons : and I have great satisfaction in thinkiBt 

that, besides the argument which I have fadd npn 

the lapse of time, that besides Hie topics to win 

I have had reconrse upon the frame of the record, 

and upon the f^wne of the issue, it bang b- 

necessary to dedde the question of tfae cODJott 

verdict, that is, the conjunct issue and tbe ver&t 

for the pursuer, wMiout specifying irhether conoes!- 

ment or misrepresentation, because I am of opimse 

that there is neither an allegation of misrcfn- 

sentation nor of concealment, and that qaesta 

could only have arben if tiiere had been a. valid iBb- 

gation of the one, and an insnffident aMfgafew of 

the other, but there being ndtfaer <ui allggstita el 

the one nor of tbe other, oif coarse in that ease fte 

question of the pleading it is now mmeoeasBry todol 

with or dispose of, it gives me great samhdia, 

upon looking anxiously into the opinions vlit 

leomsd judges, three of whom expressed s ray 

doubting and hesitatinc opinion in favonr of dt 

verdict of the jury, thelbakh of whom ex p nas aii 

clear, dellberata, aiad, in my opinion, a wd-os- 

sidered and a well-reasoned opinion sgaiait (k 

verdict of the jury. It gives me nnspnakable asfr 

£tction that I do not disposeof tiiis case without faBOf 

not only well weired those learned and eiihoati 

opinions, bnt having gone into the mass at tit m- 

denoe itself. If I had been sitting hi the CoortMn 

I should have differed ttom tbe majority of tier 

lordships, and have agreed witii tiie learned preadesi 

in being utterly dissatisfied with the verdict. Bit 

that it IS not now for yon or for me to eotaiia; 1 

go upon the gronnds wladi I have abeady lUii, 

and itis fbr me to add that, in my opimoo, theiii 

fkme and reputation as an hoiteat man of Wdfer 

Irvine has paased through this ordeal, and is is 

my deliberate and nnhesuaWi^ opinion whoBy b- 


InterloetUor* reverted. D^iudtrt Mhr 
ateoitiied from the eeaefawum qftke an- 
monr, vilheoett below, exeept as to eoisis 
4^ the proeeedmgt. 

0«Htts ffsactlb 

sxvoB'B corm. 

Beparud by Oao. B. AiLnrr. Bsq. of tks KUa1«^>s>^ 

Baturdag, Dee. 14. 
iteTHE GtoniiANCRSsm Fkzb Ounus 


Sir Samuel RomUly't Aet—S ir * »^- «• "v 

Where ordert have been made on a pelUit* utmr 

Sir Samuel BomiUt^t Act for ike s i ss s ff I 

of a lehool, 

Bemble, that the JurhHeHo* ftf the OxftJ^ 

been wufftetmtly flieed to atlom tif a fimt^ 

wider tlut Act md the S Ir 4 FM- e- ^ 

a* to the ditmittal (if a matter qf Me leM 

trithout obtaiitimt the Altorutg-OmttrattmSI' 


The Court hatnoi am/ iKtereMaa tmder fie 3 T < 

Viet. e. 77, see. 19 to r^fiat a detbrtHm, 

where the ditmittal i^ the matter it regulr. 

This was the petition of the Vicar of Otimt- 

chesfer, in the county of Hnntingdon, fnjif* 

declaration by the Court that Mr. lUdiard Os^ 

had been duly dismissed and removed frsn w 

mastership of the Godmandiester Free Qf^ 

School, and had ceased to be the master tfaoo'. 

Hie petition was presented nnder the 3 & 4 Viat J. 

77, by tiie 19th section of whldi provision wss siHe 

for^ecovering in a smnmary way befbre jssttes n 

the peace, premises, &c bdonging to gmasv 

schools, on die production of an tn^er of me Coat 

of Cfaanoery declaring socfa master to bave Ix* 

duly dismissed, or to have ceased to lie natf . 

The school was eitabUshed by charter of ()■•■ 

Blizabeth. Mr. Qaont was appointed Hie heal- 

master of the school in tiw month of Jannsry, IW, 

and he held tbe office nnta the Slst of Jdy b^ 

On tbe 21st of March last the governors reaotmd to 

.remove Mr. Gaimt &«m the mastership tt ?° 

school, in conseqneooe of his permanent is^^*?^ 

to discharge the duties of master, and di rerty 

thattbiee months' notice to vacate tiie mastHSsiP 

and leave tiie school-house and premises. Mr.GMst 

having refused to vacate the mastership or to PM 

up possessian of the adtool-bonse and pmrises, at 

present petition was presented. The petitioa^ 

headed " In tin matter of tbe aduxd, 9b Bsofi 

BomiUy's Act and 3 dc 4 Vict c. 77," but Ae 

Attorney-General's sanction bad not bass obtsiDtl) 

and Uiere was only one pelilluiaii. 

Xmyoa, in sapport of tiieiiadtiea,«id ifaatftt 

Digitized by 


Apmi. 19. 1851.] 






fiuds of Use gcfaool allowed of. a salary of 24/. only that it aboold not be obtained audsr an iarae dtvitmit 
to the master, which was increased by Tolantary ee/non. 

■ohscriptions. The matter had formeriy been before 
tlie Court under Sir Samuel Romilly's Act, and 
orders bad been made for the management of it. The 
Xxird CbanecUor's secretary bad, under these dr- 
cnmstances, considered that the Attoraey.Generaf s 
certificate was not now necessary to bring the case 
under that Act. 

Xhe ViCB-CHANCKL),aK said that he supposed 
that the jurisdiction of the Court had been suffi- 
deotlT fixed by the former orders. 

Terrell, for MnlGaunt, stated that aD that was 
■deed was, that a retiiinc pension should be giren on 
•eooont of his long aemces. The 18th section of 
tite 3 & 4 Tict c 77, gam the power In certain 
eases to assign a retirin|; pension. 

fiayna. in nglf. said that tlie letiring pension 
vw, loader that section, to be ^ren, '* provided that 
tiiere shall nunain suffioent means to aroTide for th^ 
"ffi-imt pecfennanoe of the datias wnich belong to 
ti^ ofioe from which such master shall be removed." 
Vb letiriag penaioo arald be girea in the piesent 
4M^ M the nttda were so small. 

iSe Vi«B-C«ANCsu.Da considered that he had 
.aadiicratioointliecasck hot that he mnst make the 

AxDMarvfl ^Tatbs. 
Coumetti uotee—iVmg cffidmUt. 
Wktrt motm t^f an ammfement apftar os cotm- 
tefe tr^/i, wAiek all agree, the Court will act 
S^tfOi tiem, tUtktnifk na taimUe qf Ike arrange- 
wmt MM* made in the regUtrar'teaoh. 
Where a time hat been appointed fir fiHng nggi- 
Jatiti, primi ttaie Uuaeiled iMer the time mtut 
ie rveeted, though the Court hat a diteretion to 
admit them m eate/aUurt (tfjuttiee or great in- 
— w i Wa iiee matMie oeeaiomed by ihar rejee- 

A petition ia &Sa canae fiw the appointment of a 
gaaraisn of infants, and of a receiver of their pro- 
Mi^, «Mae«D to be heaid on Monday, the 18th of 
Jtowiliyiv Kben it waa ananged that ail the affi-. 
dsrits shoold be filed on or before the following 
Xbataday, Nov. 21, and .that &» petition sboaU 
•tand over. Of this arrangement aa to affidavits no 
appeared in the registrar's book, bat the 
on the baeft of the connsd on both aides 
agreed in shewing that this arrangement had been 
3Mde. AfidantiOB both sides wen filed after the 
3blt,mA en tiie petitiom cemia« oti agam to be 
hmri, the i|aeation was diacaeaad whMdier these 
aMamto auriit heaaed. 

Haltai and C. U. RoupeU, for the petitk»en, 
W l Siii lnl in fcvonr of the affidwita being ased. 
W^irr aaiaod Sehej/n, tat the leapondenfa, argued 

AwTM* for aaodMr (Mty. 

Xhe ViOM^OatLKomvustk aaad that he hadooaima- 
B w a Nd with Lord Cwwiwertb. who was of opioioD 
«ilfaUBtlMit he iboaldMt upon the notes of oomi- 
•el, which all agreed, notwithstancSng the amission 
in the regisliai's botdc. As to the adasission of the 
eSdavits, yrani /b«<« afideviu filed aOer the ap- 
psinla4>taM mat be r ej ect e d. That was ooasistcnt 

Malint and Saich, for the deviseo, objected to the 

Eaint being tried in an action, contenaing that the 
cir-at-law was only entitled to have an issue deri- 
eavil vel non, if he were entitled at all to any 
farther investigation after a verdict found again^ 

The Vicb-Chancrllob. — It most appear in the 
decree that the heir-at-law elects to bring an eject- 
ment rather than an issue dentavit vel non, lam 
of opinion that he is entitled to have snc^ an action 
rather than an issue, especiiJly aeoording to the 
modem coarse of decision. 

ffnumon tUto Conrtg. 

fitii&atalsaBdiMMiiee ef tke Ceivt If it waa 
ijiinl tofiJeaffldavae after tfaetitae apiwinted, u- 
MsatiMahoaUhave been made to the Court for 
leave to do so. Lord Cranworth also agieed with 
We Heaeor. that tlMCoort had adiscratiBn to admit 
) haa a< si i| i , in oaae a Wlare of jaatice wore likely 
to oeear by reason of tiieir rejection, or gnat iaoen- 
«nisBce wooU ansae. Be iboald have pnrsued 
that (owis if sach a case ware sImwd, bnt he con- 
MsMdthatitwaidd be waU for raatioe that these 
•Marits ahsald he ineoted, and. aooordingly, he 
Wis ct ed Jl die ^Bdants filed after the 21st of No- 
Ifobpt. He wonld not direct them to be taken off 
the file, as Uier might be aasAd hereafter. 

IVvrass asked for iM oestt, but 

The Vis».C«Mfcau«a said «iat he aheidd n- 

Anoidar i afarii n g it tetheHaster to appoint a 
~ "1 was then BMda. 

Mtmday, Dee. 16, ISiO. 
fiaoTZ V. Youxo. 
BMhUetmpum. . 
S%» hekf-mUime it entitled to eleet whether the 
validity ef the will ihall ie tried iu mtane nf an 
mttitm qf g e itme nt, mr oa assae devMavit vel non. 
In thia eaae an aotion had been brooght by the 
' tliie«VTlviagdafisseintrast,for 

the win. for the porpoee of trring Ae 
er a win. Oe saaie baioigditpDted by the heir- 
Thafosmof the aation waa foriMncy had 
▲ *srd>el waa band ia fovoiir of the 

■< w iai » —a an a 
MtHM oTlU aetioawBS lafassdfcjrtbeCenftof 

a iwi ir i B ^ ff glwir sa d Aaaiet, far ths heir at .law. 

adeht be diiaated in be 

at>Mr, apd dssMag 

oovKT oi> Qvaaars vmrnom., 

Baported by Adak B iiiLSs i u y utd VtVh PAantL, 
Bsqn. Bwristan^tJiaw. 

Jwf 21, amf 22, 1850, and Feb. 22, 18S1. 
HAi.Ai.nni c. HoDoaoN. 
OompoiUion deed— Pleading— Releate—Pi-aud. 
To mt action of indebitatna assumpsit the diffend- 
anit pleaded a releate, to which theplaintig' re- 
plied that it wat obtained from Am 6y fraud, 
eotin, tfe. of the d^fendantt and othert in eoUu- 
tion with them, ft appeared that the plaintif 
had made it a eondiHon of hie executing a eom- 
poeitiom deed between the de/endantt and their 
eredUort, that he thould hate a fraudulent pre- 
ference over the other ereditort, and the fraud 
relied upon, at that under the inducement of 
wUeh he eaeeutedthe deed, wat afaleerepreeent- 
ation bg the dffendanti, that he wat the only 
f av o ure d creditor, whereat tome othert had alto 
been imp roperly preferred .- 

Held, bf Ooieridge and EHe, JJ. (Wightman, J. 
disaenttonte), that the deftndantt upon thit ittue 
were entitled to the verdict. 

In an action againtt the maker of a promittory note 
the drfendantt pleaded that theg had accepted 
certain UUe drawn bg the plaiaitif, pagable to 
Ut order, that the t^fendantt compounded with 
their eredUort bg deed, giving to the plaint^ a 
fraudulent preference t that the pkdnt^ executed 
the reloate, that it became hit duty to take up 
the biile, that he neglected to do to, and that the 
holdert then threatened to cue the dffhtdontt, 
and that, ta oensidsrs^uia e^Me piaintift taHno 
up the bilie, the dcfendanti made the promiioorg 
note, and that there wat no other eomeideration 
for their mdUng it. THe pImntifrepKed de in- 

feld, that the other allegalione in the plea being 
proved, the averment ef the plaintfft duty to 
provide for the bill wat alto pr ove d, and that 
the plamtif could not eet im hit own fraud 
which accompanied hit execution ^ the releate, 
to prove ite imvalidilu, or to exonerate h imt tif 
from the obligation ofttUng up the billt. 
This was an aotion of aitumpiit. The deduc- 
tion contained five coanta ; the first, aeeoad, third, 
and foortli apon piomiaory aotea made by the de- 
feadanta; mo fifth, a eonuaon count fivgooda sold 
and ddivared. Tliere were several pleas to the 
varioas aoantt. At the trial before Witditoum, J. 
at liveipool, at the Bommer Aanses 1849, the ver- 
dict waa foand for the plamtiff, leave being raaarved 
to the defendants to move to enter the vcrdiet for 
thentatlves apon the fifth fSen, whieh was pleaded to 
the last eoiint of Ae declaration, and alao upon the 
aeventh plea, wUdi was pleaded to the fint foor 

In the following Term a tale niti was obtained 
aoeoordinriy, against irhidi 

June iSmd and 23rd, l»0.^1tartin, Oomling, 
and Atherlon, abewed caase. 

Knowlee, Additon, and H. Hill, argoad in sup- 
port of the role. 
The fiaets and aignmoita safficiently an>ssr from 

the iodgasenta. 

The toUowiog aothoritiaa were eited : Walton ▼. 
Earl cf CharlemoHt, 18 L.J. Q.B. 65 j Chapman v. 
Black, 2 B. & A. 588; Hawley v. Beverley, 6 M. & 
6r. 221; Howden v. Haiah, 11 A. & E. 1033; 
Pendlebury v. Walker, 4 You. & C. 424 ; Higgini 
▼. Pittt, 18 LJ. Bx. 488; Xsivrtd^e v. DorvUle, 
S B. & A. 117; Stephmt v. WUkinton, 2 B. & Ad. 
320; Jonet v. Jonee, 6 M.-<e W. 88; Bx parte 
Hall, 1 Deac. Bank. Ca. 171 ; JMMaa v. Hughee, 
5 Bing. 460 ; aeager v. BilUngton, 5 Car. ft P. 456; 
Holmerr. Viner, I Esp. 132; Stilk v. Myrick, 2 
Caaap. 317 ; Davidion v. MeOragor, 8 M. & W. 
755; Doe v. Roitrle, 2 B. & A. 367; Jfooav. 
Ditehbum, 2 C. M. & E. 720, s; Spencer v. Hand. 
In, 4 M. & Gr. 420 ; Blone v. Compton, 5 Bing. 
N.C. 142; PUtrowT.PiUrow^tAtmotpherieRaS. 
way Oempany, S C. B. 440; S6uray v. Mann, 17 
hJ. Bk. 256; Bailton v. Mathewt, 10 Clk. & 
Ka. B34. Cur. adv. vult. 

(a) 8m ^ MoHer iiiniiiKiflliigs in this matter, Srav* v. 


Saturday, Feb. K.— The Conrt(«) being Avided 
in opinion upon one point, delivered their judgawots 

Wightman, J. This was an application by the 
defendants, pursuant to leave rcterved at the trial, to 
enter a verdict for them upon the issues taken on 
the liftii and seveDtb pleas. The fifth pita was 
pleaded to the last count of the dedanttim, which 
was indebiltttut attumpril for goods s<dd and ddiv- 
ered, money lent, money paid, interest, and on an 
account stated. Tl>e plea stated a release after the 
accruing of the cause of action. The plaintiff re- 
plied to the fifth plea.tlKi^ tiw release was had and 
obtained from him the Dlsintin fay the tttmA, covin, 
and misrepHMOtation of the defendoata and others 
in ooUnsion with him ; to whidu the defendants re- 
joined a denial ^>at the releate waa obtained by 
ftsai, covin, and misrepnseotatien, as sJleged. It 
appeared by the evidence that the defendants, being 
indebted to several persons, and amongst otiMrs to 
the plaintiff, whose debt amounted to 9871. 7s. pro- 
posed a composition of 6s. 8d. in the poond, which 
waa agreed to by the majority of the creditors, in 
company, but the plaintiff, whowas not present when 
the OS. 8d. was agreed to at that meeting, lefosed to 
conear anless he was paid 13a. 4d. in the ponnd, on 
part of hiadebt, and the other part was paid infUl; 
and on receiving notes for the amount agreed on, 
and the positive assurance of the defoadaat that no 
otW creditor than himself was prefoired, and that 
no one else was to have a futhing beyond 6a. 8d. in 
the ponnd, he signed the release for hit whole debt. 
The aisanuioe by the defendant that no other credi- 
tor was pnfened was antroe, as there was no doubt 
bnt that he preferred other peraens besides the 
plaintiff. It was contended for the deiandants that 
altboogh the plaintiff was induced to accept a com- 
position of 13s. 4d. in part of his debt, and to sign 
a release upon the credit, he gave to^the represstrta- 
tion and asstuanee of the defendants that no other 
creditors had any preference, and this representation 
and assurance were false, still, tfaatas he himself, by 
taking more than 6s. 8d. in the poond, had been 
goilty of a fraad on the other creditors, he was not 
at liberty to set op the ^od of theJAefeadanta prac- 
tised on him, aa an answer to the teleaas whiahhe 
had given to him, relying oa such fake repseseato- 
'tion. There is no doubt bnt that the phdntiff was 
induced by this folse representation of the defoadants 
to ezecDte tiie retease ; and it appeeurs to me that it 
is BO answer upon this issue to shew that the plain- 
tiff himself had also contracted for preference.' in 
fraud, not of the defendants, bat of the other cre- 
ditors. It must not be forgotten that in this case 
the defendants are seeking to take the benefit of a 
deed obtained firom the phuntiff by their own false- 
hood and miSEepresentstion. There is no detdrt of 
the bonafidet at the original debts, and &e prefer- 
ences are not frauds on the defendants, but on the 
creditors; and it would be too much, as it seems 
to me, to allow the defendants to eat up a counter- 
fraud by them and the plaintiff, by which they de- 
ceived other penons, as an answer to the diaige of 
fraud pradised by the defendants on the plaintiff, or 
rather as an estoppel on him on this issue from set- 
ting up that fraudulent reineseataQDn, whioli would 
have the effect of depriving him of part of his ori- 
ginal right Suppose the defendanta had iwoined, 
specially, admitmig that the releese was ootaiBed 
from the plaintiff by folsehood and misrepresenta- 
tion, bnt alleging, as an answer, that they and the 
otliers in the same traaaaction had cemmittad an- 
other fraud on other persons, creditors of the de- 
fendants, would such a rejoinder have been good i 
I think not; and no one can, if be has obtained the 
deed by felsehood and misrepiesentation, take any 
benefit under it. because he and the peraon upon 
whom he practised the folsehood and nusaepreseBta- 
tion were also engaged together at the aaaie tisse in 
snother fraud upon other persons. I rsgiet that I 
diSier on this occasion in (minion from my brathers 
Coleridge and Erie ; bnt 1 am of opinion, in the 
present case, that the release ia wholly void for 
fraud aa to both or either of the parties to it who 
wrae cognizant of this fraud; and that upon this 
evidence all the creditors were remitted to their 
original rights, notwithstanding the apeemenW and 
that the defendants can take no benefit under it, but 
ttiat the present verdict on the fifth plea ought to 
stand. With respect to the seventh plea, that was 
pleaded to the second, third, and fourth oounts of 
the declaration on three promissory notes, dated re- 
spectively the 1st of October, 1847; the plea, in 
sobstsnoe, slated that the defendanta were indebted 
to the idiuntiff in 9892. 7a. and had accepted four 
bills of exchsnge for the amount thereof, drawn by 
tlie plaintiff, and which were payable to his order; 
that the defendanta compounded with their ere- 
ditwa, and the plaintiff agreed to a composition, 
receiving a pseferenoe over other creditors and cze- 
ooted the release: that it was his duty to take up the 
four biUa of exchange, and he neglected to do ao^ and 
the holders of the bills threatened to sue the daund- 

(a) WUoh had oonslstad 6f ColRidge, Bile, and Wight- 
saD, 44, 

Digitized by 




[VoL 17. — No. 480. 




tiie dcfendmnto had Dot pud him the additional ram 
agreed ou by way of ui efar m ce, and fliere i» g tro ng tt 
reaion fat holding tMt the tdease coold not be in. 
validated by leaaon of the disappaintment in tiie 
belief that no otiier creditor had Men equally lac- 
MMft il in defianding thereet With reepect to the 
pleadiDci on the aerenlfa inne, I agree with my bio- 
theis Wightman and Coleridge, that the Teidiet 
should be entered for the defraidant. 

CoLniiDOB, J.— The fint question arises on the 
njoindor to the replication to the fifth f>Iea. To 
tiiat plea, whidi is of a release by the plaintiff, be 
replied, that the release wax obtained mm him by 
fraud, covin, anil misrepresentation of the defendant 
and others in collusion with him, and the rejoinder 
tia t eiscs this. On the part of the plaintiff it is con- 
tended that the simple issue is, whether the defend- 
ant and others in net procured the ezecntion of the 
release entirely or in part by means of any fraud or 
misiepiesentation as alleged. If be is right in so 
construing the issne, the facts certainly wamnt his 
applying to have the verdict entered for him ; for it 
is dear the defendant induced the plaintiff to exe- 
cute the rdease, merely by assuring him that the 
other crediton had no preference given to them ; 
and whatever concurring motives uiere may have 
been, be would not bnt for this assurance have ex- 
ecuted the release. His assurance related to a fact 
which was entirely within his knowledge, and it was 
untrue. But on Gie part of the defendant it is con- 
tended that this is too narrow a view of the 
issue, or rather that as the plaintiff was him- 
self, in the transaction of the composition 
and the release, guilty of fraud in respect of 
the other compounding creditors by stipulating for a 
preference to himself, he is not at liberty to insist 
on fraud at the same time practised on himself, nor, 
indMd, to say it is an^ flrand which induced him to 
enter into the composition ; and, afkera good doit of 
hesitation, I have arrived at this condnsion. The 
plaintiff in this case had entered into an arrange- 
ment for compounding his chum on the defendant, 
which is fraudulent as respects die other creditors. 
He has received the composition notes, and has exe- 
cuted the release, but he now resorts to his original 
demand, and is thereupon met by a plea of the re- 
lease. PrimI facie the release is an answer to the 
action, because, to allow the plaintiff now to recover 
for the whole original demand, would be a flnud on 
the other creditors who had come into the compon- 
tion on the faith of the plaintiff being a party to it. 
But the plaintiff replies that the release was obtained 
from him by the misrepresentation of the defendant, 
and others in collusion with him^ and this being 
denied by the rejoinder, the only question seems to 
be, whether he is estopped from proving his allega- 
tion, if trae in htA, because he and the defendant 
have, in the same transaction, concurred in a fraud 
on the other creditors. As far as regards the par- 
ticular misrepresentation, the plaintiff was innocent. 
If he had stipulated for no preference to himsdf, it 
would have been perfectly innocent in him, land- 
able indeed, to stipulate that no other creditors 
should have a prdSsrenoe, and a breach by the 
defendant of rach stipulation would dearly have 
avoided the release, and remitted the pWntiff to his 
original rights. But be has stipulated for and has 
obtained a preference for himself, which, for the 
reason I have stated, will not vitiate the release as 
af^nst himself, as it appears to me that the having 
given a p re f e r ence to others also vras no fraud on the 
plaintiff. The mere misrepresentation by the de- 
fendant of a tuck not material to the plaintifT would 
not sustain the issue, and the only way in whidi the 
misrepresentation could be material to the plaintiff 
would be, inasmuch as the defendants must be ren- 
dered less able to carry into execotion the fraudulent 
preference to himself, by having bound themsdves 

anti, who, in order to induce the plaintiff to take 
up the bUls, gave the other promissory notes in 
the second, tiiinl, and fourth counts mennoned, and 
on no other oonsidetatioo whatsoever. The pluntiff 
replied <{«iivtiri4 abimu tali caastf, and the ques- 
tion is,', whether die plea was proved. There can be 
no doubt that the plaintiff ought to have provided 
for the fbnr billa, and that, as between him and the 
deCsiidants, it was his duty to take thea up ; that 
the onlj conmderation fw the promissory notes men- 
tioned m the second, third, and fourth counts, was 
the performance of that which had been previously 
a^raed upon, namely, the acceptance of the oompo- 
sition and the execnUon of the deed. This he was 
bound to do. Upon this part of the case the qnes 
tion that arose on the ottier plea does not arise. It 
was said there was no strict legal duty cast on him to 
take up the four bills if there was a fraudulent pre- 
ference, which made the composition void ; but there 
is nothing in the plea which shews that the compo- 
sition was void as between the plaintiff and the de- 
fendants, the only fraud shewn being the plaintiCT 
own innsting on the preference of hlmadf. If it is 
not void as against him, it appears to us to be clear 
there vras no sufficient consideration for the giving 
of the notes, and that he oug^ to have protected 
tiie defendants from the consequences of liability on 
those bills. On this part of the case my brotWs 
Coleridge and Erie agree with me, though I have 
the misiortmie to differ from (hem on the other. On 
this part of the case, therefore, I think that the rale 
should be absolute for entering the verdict for the 
defendants on the issue on the seventh plea, but my 
opinion is it should be discharged as to entering the 
verdict for the defendants on the issues on the flfih 
plea; althoBgh> in conse<^uenoe of the opinion of my 
orothers bdag in opposition to anine, ^ rule will 
be absolute for entering the verdict on the fifth plea 

Erlb, J.— With respect to the ftfth plea, I take 
the fects to be as stated bv my brother Wightman, 
who tried the cause, and hare oome to the condu- 
sion that the verdict ought to be entered for the de- 
fendant. The plaintiff, by entering into the compo- 
sition deed with the other creditors, contracted a 
duty ^towards them to release the defendant from 
his debt. Each creditor consents to lose part of 
his debt in consideration of the others doing the 
same ; and each may be considered to stipulste with 
the others for a release from them to the defendants 
in consideration of the release by him. Where any 
creditor, in fraud of an agreement to socept a com- 
' -position, stipulates for a preference to himself, his 
stipulation is altogether void ; not only can he take 
no advantage firom it, but he is also to lose the benefit 
of the composition. The requirement of good fhith 
amongst tha creditors, and the preventing of gain by 
agisements in fraud for preference, have been uni- 
formly m ain t ai n ed by a series of esses firom Leiettter 
▼. ilose, 4 East, 372, to Hmedn v. Hoigh, 1 1 A. & E. 
1033 : and Bradthaw v. Bradtlune, 9 M. & W. 29. 
Here, the plaintiff having received a oompoiition, and 
the value of the preference, which was a fraud upon 
the other creditors, is seeking to gain a further ex- 
clusive advantage to himself, alsn in fraud of them, 
by sidng for the balance of his original debt, after 
•Uowing for the composition as the value of the pre- 
ference, bnt daimstoavoidhisrelc«se,on the ground 
that he was induced by the defendant to believe he 
alone was fnodolently preferred, whereas some other 
creditors have also obtained some unjust advantage. 
' Those are the fasts on which he relies to support ue 
ftepUcation, that the release was obtained by the 
' fraad of the defendant; bnt the deed is not to be 
avoided on the ground of fraudulent misrepresenta- 
° 'tioa,'tuilesa the matter misrepresented was amate- 
- rial inducement to the executbn of the deed, — in 

■ other words, where the matter was really such as, in ^ , ^ 

the case of a simple contract, would be a substantial j to act similarly to others ; but* he had no right to 
consideration for the contract. Here the misrepre- { have the preference carried into execution, and 

' aentation relied on is not of this nature. The «x- ; therefore he is not in law prejudiced by the failure 

' dnsion of others from the preference is no direct in n^iti to it. The whole considoation for the 

advantage to the plaintiff; the whole stipulation for I release is the fraudulent preference promised to 

' preference bring fraud on the part of the phuntiff himself and withbolden firom the other creditors. 

■ towards the other creditors, no part can be legally I He cannot allege the former as a fHnd on himself to 
' relied on by him as forming a material inducement ; vitiate the release, for in that he is parrfcrarcWmiNiV, 

for Us stipiilation, it couki not form any part of the and the latter is so mixed up with it, denving all the 
" legal consideration. Also as in a composition deed, { materiality from it, that the same dinbility seems 
■ the prindpal parties to the stipulation for the release : to exist as to him. If I am right in this, the de- 
•are the creditors who mutually contract each with i fendants might avail themselves of the answer by a 
4he rest of the body, any misrepresentation of the simple traverse, and there need be no special re- 
.<lebtqr to any one of the creditors cannot be relied on joinder. I have come to the condnsion, therefore. 

iitai orimjkir reffuUiimf or eam tr o nimg tiin- 
Kef or mtmmgtmmtitftMi poor, sr f Ac imrnmal 
^workhoum, or for juMmt mud r s» fr s Hn 
vetfrysMs or pariApffieirt im tit Jt s ct s iy y 
their dutiee at tuehs *»i mt€h oritrt, wkt 
inued, nftroede *tt m/st eoo^Hetimg with Urn 
pretioiuh wiadt <y local atMoritiao wider p». 
Mess afttriMrd» made if tkote amUtrakt, m 
fwmumea ef ntk Aelt. T%t Poor-Laa Ami 
ha* not, kmtner, amtioritp to etmngt, tH emit, 
or pat am tad to.tkt ttatatorp relatiom n wW 
file autlkoriliee and tfletr* cmeaHtmUd ty s p». 
tieularJetttamdto oat amotktr, nor loamttmi 
tubttamtial aUtratkm ef the w ta t him tr y atimi A 
heal Act tfraaied fiir tk* adrntimHratam if Ik 

A local Aetfbr the foaermmmU tfthepm mi 
nuamgemeai of tie ma rii mm ta ef a fmvit. 

by that one as a material inducement for the 
stipulation with the others. The debtor only 
receives the advantage which the creditors con- 
tract with each other to grant to him ; the rest 
of the creditors have made the grant which 
the plaintiff contracted for; they have been no 
•parties to any fraud, and the plaintiff does not prove 
■the iasae, that the deed which operates between him 
-and iliera, as well ns between him and the debtor, 
was obtained by fVand, by shewing he was deceived 
'by the debtor, and would not have executed the deed 
if he had not been sa deceived. I take it to be 
dear that he could not hav? avoided the lelesse if 

that the rule for entering the verdict on the fifth 
plea must be made absolute. On the other point, 
on the issue raised on the seventh plea, we are all 
agreed. I do not think it necessary to add anything 
to the reasons assigned by my brother Wightman. 
Bmle aieolute. 

Satwrdajf, Feb. 22. 

Rbo. v. Tbb Poor Law Boakd. 

Ordere ofPoor-lMW Board— Regulatiem t^ieort- 

komet— Local Act—Jwitdietioa b^ bMod—St. 

Gilee mad St. Otorge Bloomehny Local Act. 

The Poor-Law Board hae eathority bp lam to 

conferred o» Ike voetrp Ike 
limg power, and prooidedfmr the uiiBTsa tt 
Ike Ael bp a bodp ^ diraetora im islii'fci 
Hem to tke vettrp. Tka Ati mito eat^mti m 
Ike vmtrp tke power ^ a apai m t m nf . ff as. 
pemntm, and ^ rtaiotal ef terUam efiemt ti 
name, logelkmr mitk tmek, mmd at SMag <(1» 
officer*, ageate, ttraamtt, amd pa r taa e as flq 
ikouldlkimk proper, ne pmor-lmw beard, If 
am order addreteed to tke mreetmrt, ss ifti— . 
amd ckarckwardemt amd t mrtttr t ordeni, H 
artieU 66, tke aettrp la ap po i n t to Ike latnl 
officen named im artiele K of tke snfar, iosf 
for tke greater part tke tamte witk tktmatt- 
Honed m Me heal ael, amd sis* ««e* swi Wisft 
and eervamie at tke dirtettra, wUk Ut €t^■ 
tent nf Ike poor-law board, atigkt deem acea. 
larpfor Ike ^fieient per fo r ma n e e of Ike **» 
of any of tke laid offhet. Tke order dm, If 
article 88, entpoa-eredike dirteimn, at Mr dm- 
crttion, to eaipendfroat tkt ditekarge if Imw 
ker dmiiee amp natter, mtalrom, lekwkwdw, 
tekoolauttram, or medieal efpietr, aad iaiwK/ 
any euek eatpeneion tofbrthmitk report IM mm. 
together wilk tkt eamia tkertif, tt Ike ptirJm 

Held, Ikal arlielet 66 smI 88 operated ti Mm^ It 
tke direclorepowertetitferredbptkeltetlJtIm 
Ike veihy, amd tkat lotkeerttnleftkwe^ 
elet Ike order of the poor-law ieerd met bed, 
and matt be fuatktd, ^^ 

Tke order alto eont^mederdmmdrt flelwai fir^ 

Ike wtanaeememlef tke poor, the gnertmm w 

Ike workkoate, and Ike atddaaee ni "^Jf. 

Ike vetlrpmen and pariikogletn in ea^ittmtk 

proniioni of the heal Aete : 
Held, that in reepeH qf all tmek arier$ ati reft- 

laliont Ike order awe good. 

This was a rale calling on tlM Foor-lnr Boart to 
shew cause why a vrrit of cerMsrari shoold not iw 
to remove into tUs court aa order made by then on 
the 2Ist of November, 1850, relating to the maaait- 
ment of the workhouse of St. OilaaaadStGsocr. 
Bloomsbury. _u,i_ta 

The order contmned vary many artides '■■■'''jjT? 
the management of the poor; but Aosa apoa «Mm 
the decision turned are sat oat intks jodgment TM 
objection to the order was, that it vras moaaatfest 
with a local Act of Parhament; 11 Gea. i. c l«.u« 
conseqnentiy an excess of aothority on the !•■<<>■ 
the Poor-law Board. , 

Tkurtdav, Jam. 30. — The BtHeUtr-Gwad, 
(Sir A. Coekbarn), Cromptam. sad TW^Ns, 
shewed cause. 

Sir P. Kellp and Cowlimf, oonti^ 

The following authorities were referred tor-«-^- 
AlUlonefield Union, II Ad. «B. US; Av.Hi<- 
bom Union, C Q.B. 78; Re 81. Panerat, 6 hi- f 
E. 1; Re Wkiieckapel Union. Ot. 3i ; R.t.»^ 
1,3 0.6.342.».««tt. 


CoLKRiDGi, J.— This was » rule fbr a «•*•]'' 
to remove into this court aa order of the '"'tSr 
Commissioners of the 21st of Novembsr, I»* 
directed to the governors and directors of tke poor 
of the united parishes of St Giles-in-the-finUt w» 
St. George, Bloomsbury, and the churchwsrM" 
and the overseers of the said mntad parishss. ws 
have considered the case, and are of opinion that ■ 
one respect the order, whioh embraces a great MM- 
ber of particulars, transoands the powers ve^ei « 
the commissionera, and therefore that the raw 
most be made absolate. These parishes ««• 
governed, as regards the relief of the focr, 
by tiie local Act, Se 11 Geo. 4, e. 10, until the p«» 
ing of the Poor Iaw Amendment Act, th e 4»» 
Win.4,c76. Soon after the passing of thsKst*. 
this Court had occasion to consider whether "^ 
pUed, and to what extimt, to parishes whicb aen 
previously under the government of local Acto. TJ" 
dscuBon then ooms to wiU be feond to fen»"-r: 
prindple which is to govern the present case. Is" 
principle u this,— that the Legislatnre taMdi » 
provide far UBifwmity hi the mode of «»»■"■• 5J1 
reUering the poor tkranchoirt the n«dM>^'* 
this purposs ths fnmwis»nws havsajsiisffl'"" 


Digitized by 


Afbti. 19. 1851.] 






which attaehM et w y w ho re, mi it not oorted by 
the operation of Moj load itatnte. He anthoritie* 
eonititated by ■ucb itatnie mnit act in fntnre in 
mil>ordination to tlie comminioneTa, and the mles 
made firom time to time by tlie latter wonld orerrule 
aoy oonflictinK rale* prerionsljr made hj the former; 
nor can the former make anjr binding roles for the 
intaie, bat nnder the aaodion of the latter. The 
commiisioners, however, cannot put an end to, set 
aside, or alter the relation* inter «« of the tool an- 
thorities, to adopt the words oJF the jndgment pro- 
nonnoed in the case of R. r. 81. Panerat, 6 A. & E. 
9, which has ever since been considered a leading 
case on this point. The local anthraiiies may i>e 
" guided and controlled," bnt the management of 
the poor cannot be taken from them. This oon- 
clnsion was arriTed at by a carefUi examination of 
the danse* of the Act, uid may be considered set- 
tled law. Such being the law, we have now to apply 
the principle to the difTerent particnlars of the pre- 
sent order, which an objected to. Whatever merely 
regnlates or controls the relief or management of the 
poor or the government of the workhoose, or merely 
cnides or controls the vestry and parish officers, wiU 
be within the ^ower of the commissioners; bnt any 
particnlars which substantially alter the machinerv 
provided by the local Act for ite administration will 
be beyond it. We think the articles 66 and 88 of 
this order fall within the latter predicament. The 
former commences a section which is entitled " ap- 
pointment of oifloers," and by it " the vestrjrmen of 
the joint vestry shall appoint" to certain offices 
named, " and also such assistants and servants as 
they or the directors, with the consent of the Poor- 
Law Board, may deem necessary for the efficient per- 
formanceof the datiesof anyof thesaidoffices." Bythe 
latter " the directors may at their discretion suspend 
tcom the discharge of his or her duties any master, 
matron, schoolmaster, or schoolmistress, or medical 
officer, and shall in case of every such suspension 
forthwith report the same, together with the causa 
thereof, to the poor-law board." The effect of this 
is, with regard to the appointments, to make the 
directors at least co-ordinate with, if not to place 
them over, the vesbrymen : for the vestrymen most 
appoint, even against their own judgment if the 
directors, with the consent of the poor-law board, 
require it. With regard to suspension from the dis- 
charge of duties, a general discretion is placed in the 
directors, and the vestrymen have no voice in the 
matter. Now, by section 51 of the Local Act the 
power of appointment, suspension, and removal 6f 
tlK'elScers named in article 66 of the order " together 
with snch and so many other officers, agents, ser- 
yints, and persons, as they think proper," is plarad 
in the vnbymen : the directors themselves are a 
body, which, by section 63, the vestrymen are to 
elect annually ; and by section 72 they are to exercise 
all the powers and authorities relating to the relief, 
maintenance, and employment of the poor which 
the church wardeas and overseers, <n guaraians of the 
poor, are or shall be by law authoriMd to exercise. 
The vestrymen, then, weretobethe superior control- 
ling power, and nnder them the dhvctori were the ex- 
ecutive body. We have not to consider whether it 
would be expedient to vest in this body such powers 
as are sought to be given to them by the articles in 
question. Bnt it is clear tiie Act has not been law- 
fhlly obeyed by a transfer of the ordinary powers of 
the vestrymen to the directors. This disposes of the 
present rule. With regard to the other articles ob- 
jected to, we have considered them and are of opinion 
some of them do not conflict with tlie provisions of 
the Local Act, and some do, but only on such mat- 
ters as the 4 and !> William 4 has placed in 
them the power of the commissioners by the IStb 
section, that is, orders or regnlations for the manage- 
ment of the poor, or the government of the work- 
house, or the guidance and control of guardians, 
vestrymen, and parish officers. These are matters 
in which the commissioners an authorised to act, 
even if in so doing they interfere with the provisions 
of the existing law. The rule, therefon, will be 
made absolute to the extent named. 

Ruleaholule aeeordingljf. 

LAnrBBscB r. Tub Great Nobtrebn Railway 


OnuegtieiUial danuffe — ComtrueHon of JtaUteay — 
Dttmmhijf up flood watert— Award. 

A raiboay eompanpjor thtmrpou (^ eontlrueting 
tktir hne agrnd to pvrehtue certain land qf A. 
and it wa* referred to an arbitrator to determine 
thefriee to be paid by the company fvr the land 
parchawd, and alto the amomt of compentation 
to be paid for injmy done to the remainder of 
A.'t estate by eeveranee or otheneiee, and alto to 
iireetvhaibridget,arehet,euliierti, Sfe. thould 
be made over or wider the railway on the pre- 
mlt$$. The arbitrator awarded a large mm qf 
money to be paid to A. Afterwardt tome qf the 
lands qf A,tn the oeatpatton of a tenant, were 
^^wrtd by an oeerfiow cf flood watert, occa- 
tmied by the eonttruetion of the railway without 
iMsotf itficient openbtftjitr the pottage qf the 

water wider a part qf the Hne whiek patted over 
land a4)oining the Imd qf A. 
Held, 1. That the tenant'i eaute qf action wot not 
barred by the award. 2. That although the 
railway wat eonttrueled according to the require' 
mentt qf the Act cf Parliament, to that the 
company could not mae been compelled by man- 
damns to eonttruet any other pattaget for the 
water than had been constructed, yet that eir- 
eumttance wat not enough to deprhe the plain- 
tiff qf a right qf action for the h^ury whtch ha 
had tuttained. 

Case for consequential damage. The first count 
charged that the plaintiff wat possessed of three 
closes adjoining to certain low lands, over which the 
flood waters of the river Don had been accustomed 
to flow; and that the defendants had constructed a 
certain bank without sufficient water way, whereby 
theplaintifi's land was flooded. 

The second count charged that the plaintiff's land 
had been protected from the flood waters, which 
spread themselves over the low lands by a flood-bank 
erected by drainage commissioners for that purpose ; 
that the defendants bythe construction of the railway 
prevented the waters from flowing over tho low 
lands, and cut the flood-bank, whereby the water 
flowed upon the plaintiff's land. 

To this declaration there were numerous pleas, 
four of which were added at the assizes, and set up 
an agreement of reference between the company 
and Sir W. B. Cooke, the owner of the land now 
occupied by the plaintiff, and other land adjoioing 
thereto, and an award in pursuance thereof, as an 
answer to the present action. It appeared tliat the 
company had given notice to Sir W. B. Cooke of 
their intention to purchase a portion of his lands ; 
and it was referred to the arbitrator to determine 
not only the price to be paid by the company for the 
land purchased, bnt also the amount to be paid for 
injury done to the remainder of his estate by sever- 
ance or odierwise. The arbitrator was also to deter- 
mine the description and dimensions, &c. of the 
bridges, culverts, and arches to be made over or 
under the railway upon the premises. The award 
was made, Uie amount awarded paid, and the direc- 
tioDt of the award as to the construction of the rail- 
way obeyed. The district in which the plaintiff's 
land was situate, was placed nnder drainage com- 
missioners by a local Act, 7 & 8 Geo. 4, c. xciv. ; 
and they had constructed a bank, called Bentley 

Sqqd-bank, which protected the plaintiff's land 
im the flood-waters of the river Don, which spread 
themselves over the low lands of the district. The 
defendant't railway between Ooncaster and Ferry- 
bridge was made over those low lands, and crossed 
the 6ent1ey-bank ; and it appeared that the effect of 
making the railway liad been to dam up the flood- 
waters on one side of it, so that they had forced tlieir 
way through and over the Bentley-bank, and so 
flowed over the plaintiff's land. The plaintiff's com- 
plaint, therefore, was, that sufficient water-way had 
not been left nnder the railway on the opposite side 
of the Bentiey-bank to that upon which Sir W. B. 
Conke's land wat situate. 

The substantial defence was, first, that the com- 
pany had left as much water-way as they were re- 
quired to leave by their Act of Parliament, and the 
plans which had received the sanction of the Legis- 
lature; and secondly, that, at all events, the injury 
sustained by the pudntiff was one of the matters 
previously referred to arbitration, and that the plain- 
tiff's claim was barred by the award. 

At the trial, a verdict was fonnd for the pUuntiff 
on all ttie issues, wi^li 60f. damages on the first, and 
10/. on the second count ; bnt leave wat reserved to 
the defendant! to move to enter the verdict for them. 
A rule having been obtained accordingly, 

Hugh Hill and Parrer shewed cause on Friday, 
Feb. f. 

Knowlet, Watton, and Hall, contrii. 

The following authoritiea were referred to : Sher- 
rati V. 1%e North Stqfordthire Railway Company, 
2 Ph. 475; 5 Railw. Cat. 165; £ee v. Milner, 2 
M. & W. 824; 2 You. & C. 611; TAichutt v. 
The Lancailer Canal Company, 4 M. & W. 472 ; 
Clegg v. Deardtn, 17 L. J. 233, Q.B.; Reg. v. 
ne l^edt and Selby Railway Company, 3 Ad. & 
Ell. 6a3 ; Dunn v. Murray, 9 B. & C. 780; Hodioll 
V. Staltebrass, 11 Ad. & £11. 301. 

Cur. adv. vult. 


Patteson, J. — ^The plaintiff has a lease of certain 
lands under Sir Wm. B. Cooke, and he brings the 
action for injury done to his lands by their Ixing 
flooded, as he alleges, by the fault of the defendants. 
In oonstruetiDg their railwaj across the lands of 
other persons, without leaving sufficient openings 
for the passage of the flood-waters of the river Don. 
The defendants pleaded, that before the plaintifT 
had any of the lands now in his occupation, they 
gave notice to Sir Wm. B. Cooke to purchase 
certain lands, and, amongst them, those of the 
plaintiff; and it was referred to an arbitrator 
to fix the amount of the purchase-money and com- 
pensation for iiyury to the remainder of the estate of 

Sir Wm. Cooke by leveranoe or othenrit*. and to 
determine what bridges, archet, cnlvertt, Ac thoaU 
be made; that he awarded 7.990/. and directed wbtft 
thould be constructed; tiiat the money waa paid, 
and the works directed were done. The main point 
in the case it, whether that compensation relatea 
only to all damage known or contingent at the tima 
of the award, by reason of the conatmction of tlia 
rtUway on the lands purchased of Sir Wm. Cook* 
and to o^er damage ariting firom the conttructioil 
of the railwav at other places, whidi wat, ipp*- 
rently, capable of being estimated, and some of 
wU(£wat estimated; or whether it embraces alto 
all contingent and postible damages which may 
arite afterwardt by Uie workt of the company, at 
other pUces, and which could neither be foreteen 
nor be guessed at bv the arbitrator ? a proposition 
so startling, that we slionid expect tome provision to 
be pointed out to that effect either in the general 
Acta relating to rmlwaya, or the tpedal Act nnder 
which the (mrticolar railway wat made; or in tho 
instrument of reference. We have examined all 
these, and are not only unable to find any such ex- 
press provision, but any clause whatever which can 
fairly have any tuch inteipretatien put on it. We 
are thowfore clearly of opudon, that the compen- 
sation must be taken in the restricted tente which ia 
contended for by the plaintiff. Bnt it it contended 
by the defendants, that they have constructed their 
railway according to the praviaions in their spe- 
cial Act, the 9 & 10 Vict c. xvii. (local and per- 
sonal), and are not liable for any consequences that 
may follow, producing damage to the plaintiff. The 
railway passes across the low lands adjoining the 
river Don, over which the flood-waters or that river 
used to spread themselves. Those low lands were tep«- 
rated from the pUintiff's lands by a bank oonttmcted 
under certain drainage Acts, and which protected 
the pIuntilTs land from flood. By the constroctioii 
of the defendant's railway without su^cient open- 
ings, those flood-waters could not spread tbem> 
selves as formerly, and were penned up and flowed 
over the banks, and on to the plaintiff's land. 
PrimS facie, this would give the plaintiff a cause of 
action. The question is, whether the company were 
protected by their Act? Now, the 162nd section 
obliges them to make openings where the railway 
crosses any public drain, embankment or woru 
made in any drainage district, but is silent as to flood- 
waters. Tiie 163nl section obliges them to make 
openings for flood-waters in another district in ano- 
ther county, where the railway company have bought 
land. On the principle, thoefore, that exprtssto 
uniut est exelutio alteriut, it should seem, certainly, 
that BO far as any remedy, by nunufamiit or other- 
wise, to compel them to midce openings for the flood- 
waters in the Don district should be attempted to be 
enforced, the Act would not warrant it. The oom> 
pany may have been at liberty under the Act to 
construct tlieir railway across the low lands in the 
manner the^ have done, but it does not follow, in 
case an unforeseen injury arises to any one (torn the 
mode in which they construct it, that thev are not 
liable to an action. It was, indeed, helo, in the 
case in 4 B. & Adol. 30 {Rex. v. Pease), that where 
an Act of Parliament authorised the making of s 
railway, parallel and very near to a highway, the 
company were not answerable for injury sustained 
in consequence of horses passing along the highway 
being frightened. But then the proximity to the 
highway being expressly authorited by the Act, and 
the railway being used in a proper and ordinary 
manner, it was impossible to hold the company 
responsible without, in effect, repealing the Act of 
Parliament. Here, the company might, by exe- 
cuting their works with proper caution, have avoided 
the injury which the plaintiff sustained, and we 
think the want of such caution is sufficient to tuitain 
the action. The injury in the leoond connt it ex- 
pressly found by the jury, therefore the rule to enter 
the verdict for the defendant must be discharged. 
___ Bute ^charged. 

Tuetday, April 15. 
Reg. r. Gauland. 
Indictment for nuitanee— Evidence. ■ 
Indictment for burning arsenic, whereby noitome 
and unwholesome smells did arise, so that the air 
was greatly corrupted. Evidence that cattle and 
treet in the neighbourhood were poisoned by the 
particlei of while arsenic which fill on the gtwtud 
from the noisome vapour : 
Held, admissible, though the white arsenic ilie^ 
wat free from smell. 

Indictment for nuisance, charging that the de- 
fendant did burn and melt crude arsenic for the par- 
pose of making arsenic, whereby divers noisome and 
unwholesome smells did thence arise, ao that the air 
was greatly corrupted and infected ad eomanme 

At the trial, which took place before Martin, B. 
at the last Cornwall Assises, it appeared that the 
defendant was the proprietor of an aiaenic mannfiM}- 
tory ; that tho vapour produced by burning metalUe 
tnenie was offeimve to the trndl; and that particlei 

Digitized by V^OOQlC 



[VoL 17— Ncu 4i0. 




of the white arsenic were carried off in the raponr, 
and deposited on the adjoining lands. The effect 
was to poison the cattle and the trees, and evidence 
was offerol and received, after objection made, that 
smretsl of the cattle of the prosecutor, which had 
0©en tnmed upon the adjoining pasture, had actually 

A verdict was found for the down. 

Omvdfr now moved for a new trial, on the gronnd 
that fto evidence of injnry to the prosecutor's cattle 
««l trees was madmisdble. because irrelevant. That 
fcjinry proceeded from the deposited particles of 
while arsenic, and had no tendency to prove that 
tlie aff was corrupted by unwholesome smells, which 
was the only charge in the indictment. 
«ifJ!l5'A''^''.''H C.J.— Even giving to the in- 
octment tte limited construction contended for, it 
uimposBble to say that evidence of the particular 
•5<* 'n.™o do«th of the cattle and the trees was 
Mt admudble for the purpose of shewing what waa 
the qMlityofthevaponn, which emitted the offen- 
sive odonn, proved by the witnesses. 

Pattbsok, WiaaTMAN, and Erl«, JJ. con- 
•«"'«'• Rttltrtftittd. 

Wednetday. April 16. 
Paul v. Cox. 
Pleading - Varianee—Evidaue. 
"«''««• ontheean fitr dherting a ttrtam of 
mttr theplamltffalltgtd that kt wot poamed 
tf a garden near to a ttream qftcater, and that a 
irreatpart qf the water qf the ttream ought of 
'JEhLi" 'T? T*. ^^ «"'<*• '""'O' "^ through a 
ST^T^'Sr:.**'*.*^'' "^ •"'0 '*« garden^ 
2!fi%^!S''2r '** P^'mot if irrigating the 
tw« f«*r«?r. Upon a general traverte of the 
^M'tteged, if appeared that the plainHffviae 
entitled tunee a-year at the proper timet for irri- 
gatmg tut garden, to erect a dam by meant of 
wkieh the valer of the natural ttream, referred 
jom the declaration, teat forced artificially 
tlMmgh a gutter hole, into and over theplal/^i/rt 

• Ji'*^ "f P^*Wprmed the right at aUeged 
m the declaration. 

^/^ 5^ <iectoro/io» it wat charged that the 
Mfendant had wrongfully putted down a certain 
tfmi, */oiM>, and toil which had been put and 
Mwf m the taid ttream for the purpote ^ divert- 
iw th* water thereqf into the taid gutter-hole, 

**^i VIT^'' '^i^^tmumt, that thit wat tugficient 
««J that tt wat unnecettary to thow by whom the 
dam. See. were erected. 

rThja was an action upon the case for injoriiur the 
1^ s enioyment of certain water by divStine 
^l*e decUmtion aUeced that the pUintiff waS 
Pg^^^' *" of a garden and dose, with the appntten- 
■Bon, near to a certain stream of vrater running and 
flowim by the side of the said garden and close, and 
mt long befare and until the committing of the 
gwjnoes, &c., a grert purt of the watMv&c, was 
•eoMomd of nght to ran and flow, and stOl of 
t^ ought to run and flow unto, into, and through a 
eertom guttor-hole on, to, unto, into, and over the 
nrdra and doee of the plaintiff for the purpose of 
Sn^^ *f M"! thereof, &c. The declaration 
kuegea aa the wrongful act complained of that the 
•Mmaiit wrongfully polled down and dertroyed a 
•?■?■ """.»*««>«. and «oa, &c., which had been 
Waoed m, and were then standing, and being across. 
ttejMd st^a for the purpose of diverting the 
«Mer therefrom unto and into the said gutto-bole, 
ftc, by meus of which the plaintiff lost the enjov- 
■sent of the water, 4c. 

Tkethnd plea was a general traverse of the right 
oatooj, bemg in substance that the water ought not 
y "g?* to "TO nm and flowed unto, faito. and 
ttnragh the said gntter-hole, over the said garden, 
fte. in manner and form, &c. 

At Ae tri al before flie Lord Chief Baron, at the 
i*^J«"*^e county of Devon. It was proved 
aactbe piamtiff bad a nght twice a year— at the 
wper bmeafor inch inTgaaon,-toerect a dam, &c. 
ud by Oat means to force tiievrater of the natural 
weam throogh the gutter-hole on to his garden. &c. 
tothe purpose of irrigating the same. It was, 
naicjupuu, objected by the defendant tiiat there was 
• wna nce between the right claimed and the right 
jKomd. and that; therefore the defendant waa en- 
^ed to the verdict. The learned judge reserved to 
SMiMiBodant leave to move to enter the verdict on 
(taplea. and die plaintiff had a verdict upon the 

^Ai/< now moved to enter tte verdict for the de- 
Mdut aocordingly upon the third plea. The ridit 
dataad AouM have been a right to divert the water 
Wdbrigato the land. The right claimed in tins 
H— " • >*»» to the natoral flow of the water at all 
••»••. and WW diiproved by the eridence that the 
^m^jma oaly antitiad to an artificial divermon, 
1M4 to that only at slated times. 
_ Ixird Campuu,, C. J. — tlie plaintiff only 
I • right to a great put of the water. Hesays 
T about «th«r • utnd oru aitificU ooone. 

It is certainly not stated as a claim to the natural 
flow of the water, nor can it substantially mean 
any such thing. In nearly all cases of a daim to 
the enjoyment of water, the water in respect of 
which the claim is made is got by artificial means, 
yet neither prindple nor precedent require that the 
meant of getting the water should be stated. The 
right is to the water ; the rest is all evidence. The 
second objection is, that the right is improperly 
claimed for all times in the year, but I tbinlc that is 
not so. The real meaning of the decbuation is diat 
the plaintiff was entitled at the times at which 
the water was wanted for the purposes of irrigation, 
and the right at such times was proved. 

FAm80N,WiaHTUAN. and Kblb, JJ. concmred. 

Butt, then moved to arrest the judgment, upon 
the gronnd that the declaration charging an obstruc- 
tion to the plaintiff's right, by puUing down and 
removing "a dam, &c standing and being across 
the stream," &c. did not shew by whom the dam, 
&c had been erected, whetiier by the plaintiff, by 
the defendant himself, or by a stranger. If the 
dam, &c. were put thereby the defendant, he might 
remove them ; if by a stnnger, the plaintiff could 
not complain of thor removal. 

Lord Campbeli., C.J. — By whomsoever they 
were placed there, if they were there for the purpose 
of the plaintiff enjoying his right, and the removal of 
them hindered the enjoyment of his ri^hte by the 
plaintiff, the defendant is shevm to be liable to this 

By the CouKT, Arie r^fiued. 

Twnfey, April 15. 

Wmewo a v a «. Tn Quxm or Brinr.— Okmitra moved 
ibr a rale for a pndubitioa to the Lord Ifayor'i Coait, to 
prsvant *b^ flather proaMdiaga in that Oomt in the 
abore-meationed sauH. l«t. Hurt Contt had no jnriadie- 
tion over a foreisn potantate for an act done in ur •ore- 
reign cspaoity. Snd. The money attached wa* the pnbUo 
money or the Government of Spapi. StUa mm. 

OxiL e. FLaroHam. — Bmm4U nored to set aside a etrHo- 
rati wfaidi had iaaaed for &• removal at the oaue out of 
aConntrOoait, aad that the ptaiatilTaksald pay the ooeti 
inonnad in the Coaaty Oanrt. (Jbao v. Amuf, B. & 0. 
U8.) Cmr. adv. vmU. 

Bvisa e. Oaoaoi.— Z>»<aa« movad to enter the verdict 
n>r the defendant. It wai an aetian on Oe ease for ditam- 
datfoasi asd the question wai whether the penon who 
had anwintad the plaiatiirwas at the time of tfae appoint- 
ment the law&lpatKn of the peipetaal caraoy, in respect 
of which the dami aroee. Ernie miti. 

WiaenreTOV v. Euum. — Maenamara shewed caase 
■gainst a mle to reeoind an order of BCanle, J. ordering a 
writ of restitatkn to inne. — Srajr ooatra. 

_ Cfcr. mit. mit. 

W U m tt ey, ApM M. 

Jit Kamioi sa Hiaaa e. Tn Qvaaii ot Focrusu. 
— *• P. Tkfigtr moved for a proUbition to the Lord 
Mayor to reetrain him from proceediiig in this oanse in the 
Iiord Hayor'a Conrt, npon the groimd that the defendant, 
in her eorereicn eapaeity, was sot aawnaUe to the jnris- 
diction of that Ooort. But* Sitt. 

Dot itm. Fxucaa v. Eraa.— Xaawlw stored, panasat 
to leave l ea ai ied, to enter the verdict for the plaiatiir. 
The qoee^on was, whether payment of interest by a 
mortnaor to a moTtngee wonid prevent the operation of 
the Stanite of TiimitaHone in fimnr of a tenant (flie de- 
fendant) who has ooonpied for aura than twenty yean 
*ithoat nrfkigreat, having bean let tatopoaseasion shortly 
before the mortgage bythe mortoagor. (State. S A 4 
Wm. 4, 0.17, a. J; 7 Wm.*! and ITict. c.lSs Dee v. 
WUUanu, 5 A. & B. 181 i Dot dm. Oaniiif v. Carttr. 
9Q.B. MS. SuUniti. 

Oonas V. Oianuw,— X, Jamu (who was to nroart of 
the rale) eoosanling, Smlt <iiril>nruiii< 

B»o. e. Ovnat—nt AMmr m; O tnirml (who waa to 
■hew eaose) eoneeBting, 

„ Jtato aitolmlt/or a ■«* trial *po» f a$m eiU ^attft. 

I>TB0V V. Willis. — ^Hwif/VqrxnoTed for a new trial npon 
lAdavita. J2iil# mm 

Lon and Onna r. Brcxaif.— Mm, Seijt. moved fer a 
new trial apon the (lamd that flte verdict was againet the 
eri denee. BtOtmti. 

SiavawaiOHY v. AamrmiLa. ~ BooUl ahewad oanae. 
Watton end Mttielnnt in rapport of the rale. 

_ Oar. ado. vuU. 

Soi dtm. BLunmr r. BauL.— Okemell, BeHt. atored 
for a new trial npon the gronnd of miadtreetion. The 
Oovntiioa^ that the ease was net distiannUiabU Ana 
Z>(w V. Ot/ln, 4 A. & B. 80», and thare wu tterefora 

«... ^e rmla. 

Bum v. Tbb iMwwm m ITonw-WasTaait RiiuriT 
OovpArr.— If. Ckamtan, Btadtrtoa, and BraamoM ahawed 
CCBM. The .^ttnwy-OmMvi, rwk, aad OieUt ia ntppoTt 
of the rate. Argamaat a^foanud. 

oomtT or oemnnr Bawoa. 

Bepottad by Jonr Tnoanov and DanaL TnoHia Btixs, 
Esqre. Barristera^rt-Law. 

Tuetday, April 15. 
(Before Jsavia, C.J., Ckbsswsll, Wiuiams, 
and Talpoukd. JJ.) 
LccAs r. Bbalb. 
Contract, joint or teeeral—NonniU— 
L. contracted with B. in eontideration qfpityment 
qf 1,7901. arrtart qf i^ary due to L. and othert 
compoting the orehetira qf tka Boyat Italian 
Ogera. that he and they would perform to the end 
qf the teatou, and he ligned an underUMnff to 

that effect "in the name qf the gentlemen qf He 
orehettra." Suiteouentlu L. brought an aetim 
on the undertaking he had given {which had ha 
"approved" and tigned by the d^endwU],a 
which he taught to recover the 1.280/. and at At 
trial wat nontuiled : 
Held, on motion to tet atide the nontuit, that lb 
contract being made by L. on behaff of ttitn 
whUtt he tued atone, the nontuit wat right. 
Where a plaintiff deelinet leave to amatd ttUt 
trial, becaute the judge had ejtpretted a ttru$ 
opinion that he thimld be nontui/ed. the (Wf 
ictV not grant a new trial on that groitnd. 
This eanse was tried before Jervis, C J. in Vest- 
minster, at the sittings after last Term, when the 
plaintiff was nonsuited. 

Keating, Q.C. now moved for a mle cslliaf od 
the plaintiff to shew cause why the nonsait dniU 
not be set aude, and a new trial had, on thepnuid 
that the plaintiff ought not to have beoi ivxaiiltd. 
It was an action of attumptit broiq^t by the pbm- 
tiff on behalf of himself and the ouier membtn of 
the orcbestn of the Boyal Italian Opesa, Coregt- 
garden, against the defendant, fonnorly kaee if 
that theatre, and afterwards manager onderDeli- 
fidd, who since became bankrupt, to recovetsneui 
of salary due to the ordiestra, and far which, it as 
contended, the defendant had made himself nqna- 
aible. The following were the &cts under whicb tbe 
daim arose: — ^The plaintiff and other membenof 
the orchestra not having their aalaiiea regulailr (aid, 
became desirous of securing some guarantee far the 
payment of the arrears due to them; aodaatheSb 
Jaly, 1849. Madame Grisi.Mr. Costs, SignorUmo^ 
and the other prindpal artittei of tiiewtshliihnMnt 
having conaented to forego their daims until thaesl 
of the season, in order that the members of the 
orchestra might have the benefit of sadi aacriSee; 
the memben of the ordiesta thereapra pkdpd 
themselves to contiiiae their service*, provaleil Ae 
defendant vrould guarantee payment of I,280f. 129. 
the arrears of salary then due. An agreement ts 
this effect was drawn up and signed by the pbintifr 
" in the name of the gentlmnen of the orcfaesta;" 
and thereupon another paper was dnwn op bj ok 
Fenn, the tareaanrer of the eatahhduncnt, la wUch 
the above propoation was latifiad. aad sqined by 
him. This not satisfying the plaintiff and the other 
memben of the orcbBstra, me dafcirisnf was re- 
quired to signify his acceptance of tiie proposal, 
which he did by writing his name acnas the paper, 
aa follows, " Ap^Dvedby me, T.F. Scale." iVise 
two ptfon formed the j^ieemeat on wUch Oe 
plaintiff sued. The orchestra having compbedwitb 
their nndertaldng by perfonning thai doiies to the 
end of the season, called on the dtfaaUnt to fulfil 
his part of the contiart, but he replied thst he hsd 
only contracted aa the agent of Oelafidd. and that he 
had pablidy notified by placards posted in the dimtn 
that hewonid not make himself penonsUy liable. The 
plaintiff, on behalf of the whole body of paformen ia 
the orcheatza, then bnraght thb present actioo. 
At the trial the jury found that thia was not a bm< 

Sroposal but an agreement; and &t Uud Chief 
ustioe nonauited & plaintiff, on tha groand tkat 
this wasa joint and nota sevraal oontiaet, aad thit 
being so the plaintiff was not entiOed tosue on be- 
ll^ of the otoer members of the ordiestra. I1u> 
was a misdirection. It waa contended for tiie pbia- 
tiff at the trial, that Locaa being tiie agent of the 
entire orchestra could sue alone fbr Ott beneit of 
the whole. Also that Locas raiU/ being tkseia- 
tiacting party, it did not signify fat whose ose be 
contracted ; he waa entitled to sue becanae be «<• 
the party contrscting. Cleaily if tbe eimtiact net 
under seal he woidd be the proper party to mt. 
[jEBVia, C. J.— Would an actum lie against Laca 
if any of the orchestra should refuse to play? Tea 
must go that length or your aigument has no heat.] 
I submit this is a case like itetealfe v. Bytcr^' 
6 M. & Sdw. 75. [Juvis. C. J.— Yoo aunt Mt 
forget tivtt here the plaintiff signod mi bdialf <rf<>{e 
gentlemen of the orchestra.] He Bgned si tlxit 
trustee. [Crksswbu.. J. — Of irimt ?] Of the 
fund. [CaisswELi., J. — Is that so? WastbereoT 
agreement to pay to him?] No. A question ate 
ariaes whether Lucas vra* ao^ at all events, eotillM 
to sue for his own narticalar sham. [Jebtis,C.J. 
— Yonwwra offered to amend wlten that point ••> 
raised at the trial.] We thought it nnneeeessiy to 
amend after the Court had expimmid so ainn| m 
opinion that this was not a aeveial ooiM^ 
[Jbktis, CJ. — You said yon ooold not proceed is 
Chancery till you had triad a Coaamon Law Coart; 
and that yon came to this court expreaaly to try the 
queation whether one party conld ane on sack • 
contract on behalf of the whole.] It ia naosessiy ia 
determining this point to conaider the natan <■ 
interaat whidi the parties have. Here deariy tae 
inteieat is sevetaL [CutaawBLL, J. — Yon at 
nensnited : and yon piodaoe a record ia *1>>'^?^ 
evidence does not prove your oaae. Whatfloaad 
flten nan theae be for coming hava ?] I taUt it 
this cannot be constiaad a awtract byliacM u 
tnuteea fin the othaa, it is, at all orenta, «*a> • 

Digitized by 


Ann 19, 1851.] 






contract u entifles the plaintiFTto sue for the amonnt 
due to himself personally for serrices in tbe 

Ckssswell, J. — There seems to na no groand 
whatever far diatorbing this nonsiiit. The contract 
was clearly made by the plaintiff on behalf of 
others. I think, therefore, he was rightly non- 

W tttw i. 

■Williams, J. — I am of the same opinion. — There 
ia no donbt tiie nonsuit was right. It would be a 
source of great inconvenience if we granted a new 
trial in oaees where a party dedined to amend, 
because the judge entertained a strong opinion that 
the plaintiff oognt to be nonsnited. 

TALFovao, J. — I entirely agree with my leuned 

JsKTis, C.J. having tried the came, gave no judg- 
ment in the imtter. Sule rfftued. 

Widnaiay, April 16. 
Ambbose v. Kerkison. 
Hutband and iri/e. 
The plaint^ paid for the ftmaral of tin dffendanfi 
mffe, the de/endimt nut hit v)\fe by eotaent lived 
leparate far many year* More her death, and it 
did not appear that the defendant eould have 
eomnmnieated uith the hntSand brfore thefune- 
Held, that he woe entitled to reeoter the eapeniet 
paid for a decent Jkneral from the hutbana. 
Dett, for money paid by tne plaintiff for the use 
of the defendant. The defendant paid 12^. into 

At the trial, before Parke, B. at the Essex 
rtiwiinn. it appeaved tiiat the plaintiff sought to 
reeover the money paid by him for the fonenl of the 
defendant's wife; that the defendant and his wife 
had lived separate by consent for many years before 
her death ; that she bad a separate estate vested in 
tniateea for her benefit ; uid diat the plaintiff was 
acquainted and distantly oonnacted by marriage with 
the defendant's wife. The wife, dnring the separa- 
tion, lived principally in Essex, but, in January 1850, 
had removed to Camberwell, where she died. During 
her Ufetims she had expressed a wish to be bmied 
fai Bsaez. After her death a Ur. Gale, her solicitor, 
wrote to the plaintiff and informed him of i^ vriiere- 
upon the plaintiff came to London and employed an 
imdertaker to provide a coffin and take the body to 
the Baatem Counties Railway station, from whuiee 
it was emw e yed to the plaee yibatt the dofcasod had 
ezpiMeed her desire to be boned, and interred. The 
dareadant resided at the time of Ms wife's death in 
Vortgflc ; and as the plaintiff was not aware of his 
aUreH, the defendant was not informed of the 
faienl antil it had taken place. When the plaintiff 
■whed to the defendant for paymsnt of the expenses, 
the defendant agreed to pay those incurred in Lon- 
don, Imt objected to pay tme further expense of in- 
terring tiie body in I&sex. Tetdict for the plaintiff 
for 127. I2a. 

M. Chambere moved for a new trial on the ground 
of miadireetion. The plaintiff might have communi- 
cated with the defenduit through the medium of the 
vif^s trustees, and he was boand to do so before 
incurring the expenses. The atmost that the de- 
fendant was bound to provide was a decent funeral, 
and the payment into Court was sufficient for that 
perpase. "The extra chargas oonseqoait upon eon- 

rig the body into Essex are not properly charge- 
opon the defendant. The judge told the jury 
that me burial in Essex was suitable and proper, 
eonsidning the atuation of the parties and the wife's 
wishes. If that direction is correct, the defendant 
daas not object to the efasrgas. lie present case 
difcn from Jenkint v. Tueher, 1 H. Bla. 90, as 
^<n the huiiisad vrent abroad leaving his wife 
behind him with ttte usual authority to contract ne- 
•sssaiy expenses, and she died dnnng his absence; 
BOa then was a sepsnation by aoaaant, with a sa p a 
sttsastatoof tfaewife. 

JxEvis, C. J. — I am of opinion tint (here shonld 
Be no role in this case. It is admitted that if there 
** alagsl liability on the defendant, no question 
■■Mss as to the amonnt for which he is liable. We 
aiaaet discassing, therefore, whether the defiendant 
>■ aiiisfar mose than the mere decent fuaeral of 
his wife. If ao, the simple question is whether a 
°°*OBid is liable fbr the decent ftineral of his wife, 
^oe can be BO qaestion that if an undertaker had 
^frptari ly boned a deceased penon, Ait person's 
■■■^n' with assets is primarily liable to the 
^™friak er fur die expenses withont any specific 
*°obBet, sad that the undertaker may recover them 
asm him. How is that obligadon founded ? Be- 
nmt thaia is a doty imposed on the executor, hav- 
~V '2'^''' aommon deeenn aad the public health, 
^yensiB the last offioss (or the deeeased. For 
"■■■am reason that the law cssts this doty upon 
^"[•'J'ur, I think, the same duty is imposed a|»n 
^"■fiSBd of a dseaaeed wife to pay the expenses 
wiier fansssl wUh sal any sasriflc contract with the 
^S??**" psevides it. If, then, sn nndeitaker is 
?|~*~» to reeerer sosh swsenses. I can see no dif- 
"'*■>'■ between the man who has undertaken this 

daty on behalf of the husband and employed an- 
other person to conduct the funeral and an under- 
taker who incurs the expenses by virtue of his nwn 
original employment, because the undertaker does 
not do all the duty himself; he has to employ dif- 
ferent men, and he pays one for doing this thing 
and another for doing that. I therefore think, on 
reason supported by ^e decision of Jenkius v. 
Ticker, that a rule shonld be refiised. 

The rest of the Court concurred, and adopted the 
authority of Jenkin* v. Thicker, although, as Cress- 
well, J. said, there are one or two observations in 
that case that might be objected to. 

Rule refuted. 

Busnreas of thb week. 

TVcjuioy, April 1 5. 

The judges who mt thii t«im are Jerris, O.J. CresencU, 
Wmianu, and Talfonrd, JJ. 

Tua Warn LovDOir Eailwat CoKrxirr r. Tke Los- 
DOjr AKB NoBiH-WasTiax RiitWAT CoirPAirT,— B»'m, 
Serjt. {Atpland with him)j moved for a rule nUi ivny a 
writ of inquiry should not issue to asseaa the damftfres on 
the 6th iMue in this owe. The cause was tried h'^Fore 
J«rTis, O.J. in London, Verdiot for the plaintiff o:: the 
6tb iasne. The action wu brought by the pUuhli > to 
recover damsf^es for the alleged hrvach of a coT(?nuat in 
the lease of the West London line to the London and 
North- Western Kne, whereby the defendants bound them- 
selvea ** efficiently to work and repair the railway and the 
works thereby demised, and to indemnify the West London 
Railway ConuMDy against any liability for want of the 
effioiant workuigand repairing of their railway, pur<unnt 
to the oovenant." It appeared that the West L<>n<l<)n 
Bailway was formed for conveying passengers and u'' 'ods 
from Kensmgton to a station on the London and North- 
Western Kne, called Harlston.«reen, before the Oroat 
Weatem Company had obtained their Act, and the West 
London Company being thereby entitled to priority, the 
Great Western (kHnpaoy were obliged to bind thrm~t<lres 
to wait for the trains of the West London Company, ^vlicn 
required to do so. AAerwards the West London Compiiny 
demised their line, with all their right* and pririlegcs, iu- 
elnding the right to stop the trains of the Great Western 
Conroa3iy,totne London and North- Western Company, upon 
T«eerring 00,0002. in cash, and security for the pajmont of 
120,0002. and also of one-quarter of the ^ross receipts f (lie 
London and North- Weatem Company, m respect of passen. 
gera, gpoda, and other things oonveyed by the former rail- 
way. Theplai]itii&, however, complained that no aoonor wae 
thia agreement elTeoted thaoi the defendants, insteadof effi- 
ciently working the West London line pursuant to their 
BtreemsDt, oaased altogether to run passenger trains, and 
uat evan with respect to the carriage of goods, instt'ud of 
stopping and depoaiting the goods at Harlston-green, they 
took them ilrat to London, and then sent them back antl 
deporited them there at their leisure. The jury, under 
ilM direction of the Lord Chief Jnstica, decided at tho trial 
tfiat tfaia was not aa efficient working of the line, within 
the terms of the agreement, anA the question then nrose 
what amount of dunages the plaintiffi were entill< i to. 
It was thereiqjon suggested that this question slion i be 
referred to some indifferent person, but as the ^ :u-tiea 
could not agree on the terms of the referenee, the present 
motion became neoesaary. 'Klien the l ease was entered 
into tha West London Bailway was beini; worked at consi- 
derable proBt. Jaavia, 0. J.— Then it is a very remark- 
able thing that not one of the witnesses called had ever 
travelledDy the railway. It is true that upon circuit I 
accidentally met a gentleman who had done so, but he was 
the only paaaenger I erer heard of. Bflti, Barjt— Lot 
tiiat be as it might, the contract waa that passenger trains 
were to run as wall as goods trains. Otherwise, what was 
the meaning of working the line *' in connection wilh the 
London and North- Western Railway," aa apeeifled in the 
contract? JiBvis, CJ. — I think it meana that there was 
a contract for a lease if Parliament woold allow it. and 
than that the terms of ^theoontraot were to be gathered 
from the laaae. ByUt, Scrjt. — I ^prehend the true 
meaning of the contract la not that the railway was 
to be worked aa a aeparate and independent railway, but 
as a branch of the London and North-Westem Railway. 
Jaavis, C. J. — We will decide upon your motion when wo 
have heard the oroaa motion or Sir F. Tliesiger. Sir F. 
Tketiftr, on bdaalf of the dedsodanta, then moved for a 
role ttwi for a new trial, on the ground that the jury had 
been misdirected aa to the proper meaning of the term 
"efficiently" in the contract for working the plaintifis' 
line of railway. He contended that the West London 
Bailway Oesnpany, being at the tame of the^leaae in a state 
of hopeleas insolTcucy, aa appeared by their own re]K>rts, 
their giosa reoeipta baring never exceeded H. per week, 
the proper ooastmction or the covenant waa, that the line 
was to be worked in such a manner as would make the 
beat return to the proprietors ; and this being so, that the 
defondauts, bv eeaaing to run paaaenger traiaa, and by 
carrying goods only, had well performed their coviMnnt. 
JaaviB, C.J. — The Court grants a rule for a new trial on the 
ground of misdirection ; Mao arole for a writ of inquiry on 
brother Byles'a moUon. SuU am ta Ao^Jt ca-^fn. 

JtMO. V. Thb S aaaiff or Glucoboav. — Se 8i]Ci<so n and 
Divra.— dkoiMeU, Serjt. moved (or a rule eallingcn simp- 
Bon to abew oauae why a writ of attachment should not be 
set aside on the ground that before the writ isaved l>oth 
the debt and the eosts were paid. On thaSOth of Novem- 
ber a writ otjt.fa. indorsed for 39i. debt, with an average 
snm for costa, waa issued to the sherilT. On tfa£ 0th of 
l>ecember an order was made by Haule, J. for the return 
of the writ, whidi order would expire in eight days, that 
is to a^, on the 17Ut of that moDtli. The retom, hm ''ver. 
it ia amnitted, was not made in time. The nnder^lieriff' 
IMsid the amonnt to one OhariesThomaa Jones, the plain tiff's 
attorney, and took a receipt for it ; and he heard no more 
of the matter tin the 3rd of February, when the writ of 
attachment iastted. Jaavis, C.J. — There aeema to have 
been in tfaia case no witflildefiudt; the aheifir therefore is 
•ntitlad to hara Us nds on payment of ooat*. 

SmU ni*i. 

Mt t—Tom ili »tot i aakad laave to set down a spe- 

elal oaae to-Banow. It was aaoeaaaiy to mention it to- 
day. Ltaveyranled, 

Wednegdn^, April 16. 

Railway Coscpamt. — Tried in Loudon before Jervis, C.J. 
Verdict forthe plaintiff, damagcst«n guineas. The action 
was brought to recover the value of certain coral beada 
sent to Liverpool by the defendants' railway. The point in 
the ease narrowed itself to this, whether the plaintiff's 
witness, who waa called to prove the quantity of beads 
sent, W.1S mistaken ns to the exact quantity, or whether 
the box eontainind the beitds had been broken open and 
some of the heads abstracted during its tranait. Wit- 
nesses were called for the defendants, and the summing up 
of the learned judge was favourable, rather than otherwise, 
to the defendants. Humfrey now moved for a new trial on 
the (fround of the verdict being apainst the weight of the 
evidence, and urged that as the object was to vindicate tho 
character of the servants of the company, the role that a 
new trial as against evidence would not oe granted where 
tho verdict is for less then 201. would not apply. 

Jt,i7e refitted, 

Pkacock r. jEWKnT. — Kinglake, Serjt. (OomcA with 
him), moved for a rule rti^ to set aside the iudgmeut and 
potiea,onihe ground of irregularity. At >iai Prius the 
c.^use and all matters in difference were referred, a verdict 
being taken by consent for 600i. debt, damages Is. After- 
wards, by a judge's order, the reference was limited to all 
matters in difference in the cause, and an award was made 
on the 14th of February. The plaintiff signed judgment 
on the 11th of March. By the award the arbitrator found 
that tho defendant was indebted to tho plaintiff in 
38;. 123. 9<i. and tho plaintiff then drew up the potlea " as 
to the first issue that the defendant was indebted to the 
plaintiff in SHI. 12s. 9d." &c. and " they assess tho damages 
of the plaintiff at Is." It waa urged that the plaintiff had 
signed judgment too soon. (Jonesv.Iveg, 20-L. J. 69, C.P^ 
and that the poatea was not in conformity with the award, 
as the arbitrator did not specify any issue upon which he 
swarded tho 38?. 12s. 9d. or find Is. damages. 

Eule nm upon the Jirat point; rule refuted on the 

S1LVKE1.0CK V. iBwnr. — Tried in London before Jervis, 
C.J. Verdiot for tho defendant. The question was, whe- 
ther tho defendant, bv holding himself out as a partner, 
had induced the plaintinto give credit. It appeared that the 
plaintiff and two others were partners in the Literary 
Oa^ette, and that, in November, 1847, between the 20th 
and 27th, the plaintiff's cashier called upon the defendant 
for payment of the account for printing due in the August 

fireceoing, when the defendant told him that he waa no 
onger connected with the partnership. The deed of 
dissolution was dated December 1, 18-17, and waa to 
operate from the 23rd day of November then last. The 
claim in the action waa for work done subsequently to thia 
period. Siflct, Serjt. moved for a new trial, on tho ground 
of misdirection, contending that there was no notice of the 
dissolution. SuU refiutd. 

Pbkw v. Squibb. — Preniiee moved for a rule niti to set 
aside the judgment so far as related to the costs. Dt' 
murrer to a declaration in covenant, and judgment for the 
plaintiff. On the execution of the writ of inquiry, the jury 
gave a farthiufif damages. The plaintiff had taxed his costa, 
and signed judgment for them. 13 & 14 Vict. c. 61, ss. 11, 
12, 13. BiUt nW. 

Bell v. Domiwie. — ^Tried at the Surrey Assizes before 
Lord Campbeh, C.J. Verdict for the plamtiff. BramveU 
moved for a new trial, on the ground of misdirection. 

Conttilt the judge, 

Mabsu c. JoirES.— C%(2m««U, Seijt. moved to amend a 
rule of Court herein. But* refuted. 

White c. Gardbx and Axothbb. — Tried in London, 
before Jervis, C. J. and a verdict for the plaintiff. Trover 
for iron. It appeared that the iron was obtained from the 
defendants by one Parker under pretence of a contract of 
purchase, and the jury foimd that he obtained it by 
fraud and misrepresentation, never intending to pay for 
it, and that it had been in fact dehvered to him. Parker 
sold it to tho plaintiff, who purchased it of him liond jide, 
and received possession of it. The defendants discovering 
the fraud sent and took it away from tho plaintiff against 
his will, whereupon he brought this action. The question 
waa whether any propertv passed to tho plaintiff. Cases 
cited. Earl i/f Britloly. WUtmore, 1 B. 4 C. 614 ; Shtppari 
V. Skootlred, Car. and Mar. 61 ; Load v. Oreen, 15 M.4 W. 
219. HmU niti. 

EosETTO r. OuBTTET. — Tried at Liverpool, before Piatt, 
B. Verdiot for the plaintiff. Action on a poUoy of Insu- 
rance for 4,9001. insured on 3,700 qra. of com valued at 
6,*)0/. The defendant paid 3,600i. into Court, and tho 
question was whether there was a total or partial loss. 
(Thomelet/ v. Mebton, 2 B. & Aid. 613.) BuU nisi. 


Se Vouise, gent. &o. Struck aii. 


SouTHALL c. 'RtaQ.—Bj/tet, Sergeant, and J. Bnmn 
shewed cause. Part keMf4» 


Reported by Fhbdebicit Bailet and C. J. B. HBBmar, 
Esqrs. Barristers-at-Law. 

Wednesday, April 16. 
Jones v, Harbison. 

County Court— %V/ien concurrent Jurisdiction i* 
given to Superior Court — Court or a judge's dit- 
cretion to be exercised as to costs — The word 
may in 13 S( 14 Vict. c. 61, s. 13, permissive on(y, 
not imperative. 

By the 13 Sc U Vict, c, 61, s. 13 (County Courts 
Extension Act), it is provided that if the plaintiff 
shall make it appear to the satisfaction qf the 
Court in which such action was brought, or to 
a judge at chambers upon summons, that the 
action was brought for a cause in which concur- 
rent jurisdiction is given to the Superior Court* 
by the 128/A section of the previous County Cowrt* 
Act (8^9 Vict, c, 95), or for which no plaint 
could have been entered in any such Cfounty 
Court, or that the said eaute was removed frwn 

Digitized by 




[VoL 17. — ^No. 430. 




m Cntntjf Oturt iy oertionii, thenaud im mtj/ of 
tneh ean$ Ike Cmirt U wkkh the told action a 
brought, or the taid judge at ehambere, may 
thereupon, ip rule or order Xreet that the plain- 
tiff thai! receive hie eotti, and thereupon tht 
plaintiff thall ^ov* the tame judgment to recover 
kit eoib that he leould kme had if that Act had 
not been paieed: 
ffeld, Ikat Ike word nut; in that lection viae per. 
miuiee only, and not imperative, and that (burl 
or Judge could exeraee a diicretion igton the 
eate under Ike eireumttaneet at brought befbre 

This irat an action broocht in the Cosntr Cotnt 
npon a bill of exdiaoge for a sum nnaer 20/. 
(IW. 178.) 121. lis. had hien prerionsly -paid, and 
OS. were snbse^nenily paid into court. The pldntiff 
Hved and canned on bnsiness in London, and the 
defen dant lited at Doncaster,— more, therefore, &an 
twenjf milea apart from each other. An appHcadon 
had been made to Martin, fi. at chambers for the 
costs of the action, pnrsoanito the 13th section of (be 
13 & 14 Vict, c 01, wbereopon he made the foUow- 
tajj order:— "That the Master tax the pWnti«r« 
bin of costs in this canse, and also the costs of and 
occasioned by tliis appSeation, but tliat execution 
herein shall be stayed until Monday, the lltji 
January, 1851." This was for the purpose of taking 
the opinion of tiie Ponrt npon the construction oi 
the above section, and a rule niri having been ob- 
tained (reported antij 16 Law T. 369) to rescind 
that order, and also a stay of proceedings until the 
role be disposed Of. 

Am/// shewed cause.— The question is, whether 
wader the Cotmty Court* Extension Act, 13 & 14 
Vict c. 81, s. 13, a discretion is given to the judges, 
and to be exercised by theni, to allow costs on sums 
recovered under 20f. where the Snpedor Courts have 
concurrent jurisdiction. By section 11 of that Act it 
is provided, that plaintifis recovering in the Superior 
Courts sums not exceeding 20f. in actions of con- 
tract, or 5/. in actions of tort, over which the County 
Court has jurisdiction, are to have no costs. Sec. 12, 
which does not bear upon it, says that the judge at 
the trial may certify to entitle the plaintiffto coats. 
Tb«i comes section 13, which enacts, that if in any 
•tuA action, whether thevc be a verdict in such 
action or not, the plaintifT shall make it appear to 
the satisfiiction of me Court in which such action 
was brought, or to the satisfaction of a judge at 
chambers, npon summons, that the said action was 
brought for a canse in which ooncorrent jorisdiction 
i* given to the Superior Courts by the 128th section 
of the said recited Act of the tenth year of her 
Majesty, or for whirh no plaint could have been 
entered in any such County Court, or that the said 
canse was removed from « County Court by 
certiorari,- then, and in any of such cases, the court 
in which the said action is brought, or the said judge 
•t ciiambersj may, thereupon. Ire rule or order, direct 
that the plamtiif shall recover his costs ; and there- 
upon the plaintiflT shall have the same judgment to 
recover his costs that he would have had if this Act 
had not been passed. The 128th aection of the 
9 & 10 Vict. c. 95, enacts, that all actions and pro- 
ceedings which belbre the passing of this .\ct might 
have been brought in any of her Majesty's Superior 
Courts of record, where the plaintiff dwells more 
than twentjr miles from the defendant, or where the 
wose of action did' not arise vrhoUy or in some mate- 
Tlnl point within the iurisdietion of the court within 
which the defendant dwella or carries on his business 
'«t flie time of the action brought, or whore any 
officer of the County Court shalfbe a party, except, 
to respect of any claim to any goods and chattels 
taken m execution of the procen of the court, or the 
•proceeds or value thereof, may be brought and de- 
termined ra anj such Superior Court at the election 
«f the party smng, or proceeding as if this Act had 
not been passed. AdoubtissaidtoedstinMr. Jus- 
Jtce WiUiams's mmd on the point whether the word 
may is not to be read "must," and is com- 
polsory, and that a judge's discretion fa given only 
by espfeee enactment, and «iere only is he to be 
aawfied, and to exercise a discretion. By sec. 11 
there appears a prahibition clearly expressed against 
cmU ; then if you satisfy a judge in the terms of the 
I3th section, he mat direct that the plaintiff shall 
receive ha costs ; bat that ii imperative, and costs 
?^i .f"1^- J^ '™"'» "'""U »»«> power," 
rrU"?'i? *L9^;.2' =• 12. »• 18, we're held 
to be obligatory (iJ. v Barlow, 2 Salk. 609) ; 
i? *S'? "'*'' ^" stronger than the present to 
toiport «seretiott, and yet they were held to be obU- 
ptory. AgMn, npon the stat. as to the suggestion of 
breaches. [Parkb B.— That has nothing to do 
with this case.— it is a fallacy in arguing upon that] 
.^ Solet v.XoieweU, 5 T. R. 538, the stat. 8 & 5 
Wm, 3, c. 11, s. 8, which enacts, "that in actions 
2* "^1 1*™ ■o™ fof non-performancB of covenants, 
*^'.?? PlMnUff "My asaifn as many breaches, Ac, 
«nd If judgment shall he given for tbepUintiffon 
tumi ibett, a>e plaintUr may suggest on the roll as 
in«nTbreacbee.4c., aaheihaU fl3nk fit, npon which 
•hallumM • writ to the (hariff to tnmmon ajorr be- 

lbre the Justice of assise, &c., to inqnire, &&, and 
to aatess the itmafet," &&, it was held to be oom> 
pnlsory on the plaintiff i and he conld not enter np 
Judgment for the whole penalty on a judgment by 
default, as be mi|hthave done at common Uw ; see 
also page 636, ibid., Hardu v. Bern, where reasons 
are given for ttie judgment come to. ( Criip v. Bun- 
bury, 8 Bing., 399, was dted.) [Pabke, B.. aH tbe 
cases are couectsd npon that point in the 19 Law 
Journal, 181, Q.B.] 

Walton, Q.C.^contri, In support of the case. The 
13th section of this Actof Parliament is to beeonstmed 
according to the ordinary meaning of the words ex 
pressed in it, and unless the COnrt distinctly see that 
the word may is to be read as mutt, and is so in- 
tended clearly by the Act, they will not tiras deters 
mine. (He was then stopped.) 

Pollock, C.B. — I am of opnion that this mle 
must be made absolute, the rule to which the Court 
has been referred as to the construction of statatee 
must be here acted upon. In this case, by the 13th 
section, it is provided (the learned Judge read the 
section). VThat then is the meaning of the word 
" may ?" Is the judge to abstain from exerciaing 
any discretion in the matter as to giving costs in tiie 
cases within that section ? or, is he obliged, is it 
compulsory upon him to direct the costs without 
exercising any discretion or judgment in Uie matter? 
I cannot say there is no force whatever in Mr. 
Bovill's argument, that the word " may" should re- 
ceive equal force throughout, but I should certainty 
say the word " may " must here be intended to give 
a discretion to tlic judge, so that his judgment might 
be exorcised upon it as to whether the party should 
recover costs or not according to the oreumstanoes 
of the Case as he thinks ris;1it. 

Paure, B. — I nm of the same opinion as the Lord 
Chief Baron. Of late years, the Court acts accord- 
ing to the rule generally adnpted, and in the con- 
struction of a statute, to adhere to the usual and 
Ordinary meaning of the words nsed, unless that b 
at variance with the intention of the Legislature to 
be collected from the statute itself. The word 
"may," as used in the 13th section of the Act which 
has been referred to, is clearly permissive. It is to 
be read in its ordinary sense ; and that being so, ft 
gives a discretion to the jadge, in my npfnion, to be 
exercised by him as he thinks right. The ingenious 
argument of Mr. Bovill only caused me to doubt; 
but I am satisfieil it was not well founded. 

Martin, B.— I nm of opinion, aliio, this mle 
should be made absolute, 'The order was made for 
the purpose of taking the opinion of the Court npon 
it, the question being an important one. The mle 
as to tfie coustniction of a statute, as laid down by 
my brother Parke in 2 M. & W. 193, \i a very useful 
one, and in which I entirely concur. It is, to adhere 
to the ordinary meaning of the words used, and to 
the grammntiral constructfon, unless that is at 
variance with the intention of Legislature to be col. 
lected from the statute itself, or leads to any manif^ 
absurdity or repognanrc, in which case the language 
may be varied or modified,sic> astoavoid such incon- 
venience; butnofurthrr. WhatMr.Watson has said 
as to the meaniig of the Vrord " may " here is cor- 
rect. It is, in my opinion, clearly permissive. It 
Was the object of the \et to di9couni;re actions in 
the Superior Courts for araonnta under 20/. ; and tho 
13th section gives a discretion to the jndi;* at cham- 
bers, to be exercised by him in reference to the costs 
of cases within that section. A ca«<» most be made 
out to satisfy the jad;;e upon it. There may be a 
vast variety of cases in wiiich such actions may be 
brought ; and in deference to the opinion of my 
brother Williams, I made this order, that the judg- 
ment of the Court may be taken upon it. I am 
satisfied, however, that the order is wrong, and the 
rule must be absolute to rescind it. 


TvA. e. 73. t-ST; IMmmy.WrttU, 19LJ.;ft 

Bait nU temfcee tie verXd. 


x&ansTKSif, iBfu - 

Tttatdof, April UK. 

Blaib d. Jon».—Cnmft<m had obtained a nh ^'fc 
judgment mmefntux herein, it waa agreed MataitnM 
eoma on for argnoMnt at the sama time as ■■ntfcm iik 
for sMfairatidatka amid oUiiiMd by IFMoaaEto 
Term last. 

;iMOCS «. WooB,— JCbaaafayiMvaa iaanMloriidt 
ment Jbfciw 

Siirrxa «. Tn Gtau Vft/nttat San-wir OsBixi^ 
Jiam moved fbr a naw Wal haeiBOB tkacnattf ifc 
AneUoa. It waa an acMonia siiiiai«ii"»»r*a»aiw«<i 
sdabtatsd s t s n|> ii limt Han. whi^ waa tibd oa lb 
railroad by a Mrt-bona gattng oat of an i^m^ laift 
tion is th« borse-boz, knocking bar down, aod Mi^iii 
hertodaaSi. Hie defcadanta, itsppeazed, iifliil ti 
tba groom, on the ddSrcTT of tta nar*. vtt Mn^ 
aotioe ^— ■• Tb* dinetocawm not b* aiianaHifci Jmmi 
doBB to any bonaa soBmysd iTtlias r^lwar^ ■dtia 
noon was mwindtoslcn, and had awi^ tWonsr 
tberaondfr-wnttea memorandiaa ;— " I agrae to It boaaS 
by tbs above noUoe." The qaeition waa, wbethcrtMs 
restricted &a reipo na flbflSty ctf the rafiway eeanay m to 
entitle them to a vevdtatP iiwaa iwiiifaiiihiriMl It^r 
wen boaad «a pnvida pnper and sniBdaat kesie fatti 
eaaveyanoa of hsNts, wUeb tber bad ae^eetei te 1^ 
andtha^tbarefon, tbey were lialua : a varaiBt Wlw 
retnrned for the defendanti, under the diKHlioarftki 
lord Chief Baroa, that tbet« was no e i M e ace , Sa> '. 
Tkt To* JtUtamI Jtolfcuy O i m mi j , IS Ik J. m, O.K.! 
Xfonr. Um,, SBut,«l; ITiU v. n«t/brrf, ««.lw. 
Ml) jndtpneol of Pute, B. ia that caaai 8t«ray«M. 
aunts, SH; Tba Canaan' Avt, 11 Geo. 4: ud> Wm. i, 
c. 48, were cited. ' CW-.ait.alf. 

Bows V. CABmTBa.—lVap<>i* tried at BeraAelbrita 
Pattesan, 3.—&rtme$ movad (br a rule to-ibaasst^ 
a new trial eboald not be bad, or jadgmititalasdai 
a Mentf i m i tf ifc ' f tfa . Maiitm. 

Doa iem. Ovm v. Bnxan.— JZaiiAvjr mini, fU- 
aaaot to leave reaened. <br a rola to jbew cum whrOt 
verdict for the plaintifTaereln uionld not tw taUna te 
the defendant. ItwaeaqtteeBonof ow utta elleBofnil 

Buis a, Torr.— To be reportadl 

MfmeniM at drfinial. 

WiLLUif B e. Paica.— Tried hdbre ](ule, J. at the bil 
Flintabire awiea, and a rerdiet retniaed tar tbe JdM- 
ant. — WeUbf mOred for a mle aMmr • nf trial ; it n> 

an action for (be price Of ttaadiacj 
market-pUe*. (Ac t t e f i vf Wt 

Wednetday, April IG, 

Dpncalf r. BtDDLB. _ 

Atlomey'i hUl—Cmutmclion of 61(1 Vict. e. 73. 1 8iocxto» ann lUaiJsoToir Bi 
». Z7-Belivery of a proper bill. T°\- ^. -^yy *^'??^ "TIJI 

Wheatlty. Q.C. movid in this case, tried at Sfaf- *"''"" ' ""^'^ "" *•"*»•»* "** 
ford before Pntteson, 3 

to set aside the plaintiff'a 
verdict, and to enter a nonsuit, pursuant to leave, 
or to enter a verdict for the defendant on the third 
plea, or to reduce the damages. Tho action was 
upon an attorney's bill : money lent, money paid, 
and upon an account stated. Plea*. — A'uninuin 
indebilatui, payment, and that no signed bill had 
been delivered. The question is, whether a proper 
and good bill has been delivered. The courts in 
which the proceedings took place are not properly 
described fn the bill ; no sufficient information given 
of the business done to enable the taxing officer to 
decide upon the matter ; several things lumped to- 
gether, instead of being separate items, and no rea- 
sonable dates are given. He cited Mmey v. Mark; 
16 M. & W. a»3; Lewit v. Primrote, 6 Q.B. 265; 
Page v. WatHnt, 16 Law T. 512. [Parke, B.— 
You observe that there is no one item here of busi- 
done in either of the Superior Courts.] 6 & 7 1 


, , iiiMphiiT.awtot. 

3 B. & XdoL 4li.|l ' A<>wi. 

ftiLuux «. Coaan.— £«mI ntarcd fa ■ nl* *». •>>'■ 
caoie why the evmaiiasioiu inned by Tn^laian, J. m tu 
canse eboald not iieae to Gibraltar and SarbadMs, <s ex- 
amine u ltu ea a e i Hrd wee, inatsal ef aree ial«ii<<ia*«n«i 
and irity, it B*eaaaaiy, the oghr <£ Wift m n, l. itoM 
not be amended. (U Om. 3, *.4t;-l VikV «.■> 
aa.l.4> **"^_ 

BDWAsna «. Thb Cahxsos C<ui Cojpixr.-BtjO 
moved fcr a rule to shew canae why eiactoon AooBlwt 
issue agalnst'a Shareholder of tUi compaiy. Adcai*. 
WtiMtiaj, April IB. 

Jrtrs- and Oimias e. BittttaTO* and Orasaa— ''■"'"'i 
Q.C. nmved ia tUieata, tried in iMdoa, keMe <beM 
OUWrBams; to set arid* lite pUeCTs vecdiAaDita 
enter itfcr»«Jefc Bd e a «»,jir.fai>nife;>. °'.'°",» ? 
trial, on the ground of BUMUrectton. ^e refcRM n 
Onritm v. JTinpfr, 7 V, B, »i Awdlmt. ttfty, 1 C.B. 

ilnBOTTT.Bxcoir.— ^ytra^Serjt moted »• •^J"'?'*} 
defendant's verdictron the ground of tiMtmom,'^ 

tat a new trial,)* tat jadgaent mm **«»'« •j-.u- 
The action waa for libd, tried at yon**. *•***!'• 
Chief Joakice of the Common Pleaa, the defeadaat »»« 
propriplbr of the JTonric* Xercmry, and the UxJ'f'J 
plained of was, that the plauBiratcde from tba Ana 
another peraoa, aeoaaa, nakle% > Jiair bniik, vu «*^ 
goods 1 that on Itl Vme^BcovelMTtod a proaBieMU 
not «»Wp«*e bite, be BikarwaiA ^■orted tbe-pkajto. 
Pint— Hot goUrr, and jaatiaeation generiiUy to tbeekdj; 
bat it omitted tba pi^lMi and tiMJaatifloatioa «ia o^ 
as to ope bottle of capers, one pareel Of rotta^ *ee, <** 
aegar, oAe botti* of Uaeasaar oil, one ioatb ')»■,«• 
one pot of eapers. The tary foaad he elalii «M> eapM "> 
■oOinirelaerthaiafentbe* en | i rt» *r*« 
the joiy niadireotedi bat &d, .thaflea >• • W**** 
(2«alv.aV«!«»oo*lCMi.Blia.MS.>. , , _ ,,. 

verdict waa again 

<iMea<a tarailMo, The aetioa was Kpoa 
2,60W. '-*•■•-- - • 

tbagtoond ofWadirectiea ; tk*^ 
the evidence; and foriuilgwatJJ 

dted Oofcier. V. XoaAw. lOyiftrW 

Bud, aa to the sixth plea, CamOen v. ITarf, II"' 
*.<JB. ^ ..^ 

Ealt wMJktra «• trial, orfiirj»ifmtUI M* •'"■ 
fredido. L^.JAi 

Hvaaoir v. Bouaxa,— J!. Jmmm, Q.C. i«m»«*»'*TS 
tbaplaintUrsvardiot.and to enter a nqqaait, pmja<"»r 
leave. The action waa in com, for kecpiiig a ""f'SrJJI 
bot there waa no evidence eiTen of a Kwafar, JJJJ^i: 
tion conld not be mafattadied witfaoot. BW«' — '.,. 

Sum ». HAMm>I>^-^PanuU. awnd tte altJj«2f^ 
the cerUeniri obtained npon an order <^ .'*VSLl^ 
and fbr a praeedawb. trattT v. Tk* f-'-' 
Sailray Cbn^aitg, 20 Ii J. Ex. Jan. 1831 J 

pBiLLirs e. Ball.— BaeUr moved to a«t ■•"".^jEia* 
tlTa verdict for IM. iatbis cmae, tried anbela*wW» 
Asaiiea, on the ground that it bad bean eettled t^KV 

trial, aad doa Dotiea tharsof piviioasly givsa. 


Digitized by 


Apbil 19. 1851.] 







■Axs oovmv. 

SeporUd hf T. W. Binrsns, X^. of tha Middk Twapla 


TVuitrfajr, ^prf{ IS. 

(Before Mr. Jnrtiee Coleudok.) 

iZf Tbb Towk Cottncil or SHErriELD. 

li Jtmudpal eorporttion—Emmtmt tleclion vf 

' R. lUa nored ftir • wiwi— i for tha dactien 

of nren ddermen for the boroagh of SheflMd. It 

I •pM««ddutoiitiM2MiofAnK<ut,181S,>eh*rter 

k 01 nompontion wm gruttad to the borough of Shef- 

< fieU, and it WM thereby diiacted thrt there should 

< be- Hmi t MJU « Meiiu aB, eewn of whom ehonld go out 
of oOce ererr three yean. There waa alao a cl a a i e 
direetiiig that the elections shooU take place at rodi 
tiinea and pUoea as is provided for In the eaeei of 
bara^hs named in the tchadale of the 5 & 6 Wm. 4. 
e. 76 (tha Mimioi|Ml Carporatioa Aet). and by 
see. SS of that Act prorision is made for the electioa 
of aldermen on the 9th of NoTember, hi the year 
1835, and of one half of their number on the 9ui of 
Motenber, in every tlurd succeeding year. Under 
tUa siisi I ■lint, tha last alaetian of aldermen in 
boroagha named in the sobedote thereto took place 
on Oe 9tfa of November, I8S0. The town eonneil 
of Sheflldd, however, thinking that the triennial 
eledkm of aldermen should be computed from the 
fiiet election in IM3, elected audi aldermen in tha 
*«an 1846 and 1849, no election having taken place 
in the year 18S0. Sadi timas of election being 
deemed erroneous, and the caae of Iteg. v. T%e 7>nro 
CotMU ^Bnt^ord, 16 Law T. 372 ^an. 2S, 1851), 
Vaving decided that the elections under these char* 
tsis ahoald be holden at the same tinse'as those 
under tiie 5 & 6 Wm. 4, c. 76, the present applica- 
tion waa deemed advisable. 

Oeertnd, on th« part of the town eonndl, and 
■bo on that of the seven outgoing aldermen (eadi 
of whom had renounced), appeared to consent to 
the mumdamu* issuing. 

Jtailr ittolutt/or m mandamtit. 

Wediutiay, April 16. 
(Before Mr. Justice Colkriimjk.) 

Rbo. v. laAAca and OrsBiia. 
Habtai eormu ad retpondeaAutt, 
A motion for tha Mow writ rkamlH te mad* «• a 
judat at eAamien, OHd not to the Omrt. 
Mauom moved for a writ of hai*a$ corptu ad 
tmfnindwm,to be dnvcted totha gaoler of Lewes, 
diieelii^ Urn to pradnee the body of one John 
lsn«s before the justices of Sussex, at Horsham on 
Satoday next, on the charge Of bnrglary. 

CoLEMDox. J. — This has always hitherto been an 
appUeation it chambers, and I do not think I ought 
to dsoart Aom the ordinary rule, paitienlarly as I 
than oe at chambers in tlie aAonoon, when the 
■p p Hc ation ean then be made, and no time will be 
MM. JifpiieatUm to he mad» at ehoMttr: 


Pnur sad Asonns v. fficaAsssoir sad Orans.— 
Wdtnt. Q.C. movsd for ami* to Ht Mid* a pica in abate. 
IHBt of BODipiiidcr, on the crooad thstitwaa not dated 
enfiwdayofltsbehiirplemdM. SabaM. 

ffTdtadaf, April M. 
Bimire itm. e. KiLL.—Iar§laJf mored to Mt aside the 
dadarstion sod all s nb seanent prnwieiliim herehi. 


Bspostsd by Dr. WAaBnova,of Doatort' fomawns, 

Mmdau, Sfareh 3. 
The Catbabut A, formerlv the Cboxdaxjb. 

ABriHAmaaal iad taitn up momtp on iettomrp; 

tit* pal into m/artipn pott, and waa thtra told iy 

4e aatkurUy qf tM maittr ; tha pttrekattr had 

■0 Moiiet of tha bond: 
Bald, that Ika hond attaehadlo tha ttaatl, and har 

oaiu May tissi||Iei«ii4 to matt it, a aaia waa da- 

ara att* 

lUs waa • (|nestion whether a 
att ach e d to a VMsel which had been purchased at a 
fanign poi^ the pnrcliaaer not being aware' of the 
enatenae of each bead. Tha facta are suiBaiently 
set forth in the jodnnent. 

fi'anN^f|^»n>«d, in'opposifion to the daim of the 
bondholdv. He dted Jtoiu: v. Salvador, 3 Bing. 
N.(X 266, as shewing that the doctrine hdd m 
T k mpau n V. The Xopal Baehanga Aaanranet Com. 
" r> 1 M. & 8. 31, did not apply to a foreign 

Bttgflird and IVtst, for the bondholder, dted 
T kt mpau n v. 7%e Rofal Sxehanpe Aanuranct Com- 
Pgmii Tha Draeo, 2 Sumner's American Bep. 157 ; 
ThaDaala,t Wm. Bob. 427. 


Dr. LuaTOfOTOM.— Having before I oaiM into 
Coot oareAdly eonaidered uw facta and dream- 

stances of this case, I see no reason for postponing 
my. judgment. The question arises as to the validi^ 
of^B bond, dated " Buenos Avres, 16th April, 1849,'' 
for the sum of 31 5<. 10s. wnich includes maritime 
interest, payable on the arrival of this vessel at the 
port of London. The vessel originally belonged to 
tha port of Sunderland, and in June 1848 sailed for 
Buenos Ayres, but put into Rio for supplies. 
There Messrs. 'Whittle and Co. advanced on bot- 
tomry 58.'i/. 168. payable on her arrival at Buenoa 
Ayres. When she arrived there, however, on tha 
IOd> of January, 1849. the agent for the owners de- 
clined to advance the money, and it was therefore 
competent for tlie bondholder to have then proceeded 
against the vessel. This, however, he consented to 
abstain from doing, but advanced the sum neoes- 
sarv to enable her to prosecute her voyage home, 
and taking another bond to cover both tue sums 
advanced. It is admitted that the bond is valid; 
and the defence is, that the circuraatances which 
liave occurred since the bond was given, have de- 
prived the bondholder of his rif[ht to proceed against 
the vessel for tho purpose of enforcing payment 
of the bond. It appears that the vessel put into 
Bahia, and it is alleged, on the one hand, 
that she was in distress, which is denied on 
the other. The Court has no evidence as to 
bow the diittress was occasioned; but the vessd 
was sold at Bahia. I must now consider the ques- 
tions of law which arise out of these facts. Assuming 
that there lias been a lonSfide sale, by what means, 
when a vessel has once been aflected by a lien on 
account of a valid bond, can she be released there- 
from except by payment ? It may be, that if a vessel 
is sold by the decree of a competent Court, the 
purchaser takes her free from all lien whatsoever. It 
must be presumed that the Court has protected him 
so far as the law will permit against all claims in the 
nature of lien. The question as to other sales may 
he divided under two heads — sales from necessity, 
and sales without necessity. In the latter case, 
whenever the sale takes place, the purchaser must 
take CUM onere, otherwise the master might sell the 
veasd in any foreign port, and thus get rid of the 
bond. The effect of a sale from necessity is subject 
to another and a very different consideration. Sup- 
pose a master had no credit and no means of taking 
S> money on bottomry, it may be questionable whe- 
er a purchaser would be justified in paying the 
purchase-money over to the master without any 
regard to the interest of a bondholder, supposing he 
knew that there was one in existence. The miadiief 
wonld he great if a ship ooold be so sold. A wide 
door wonld be opened to firaud which scarcely any 
cautioo could prevent; and it would he exceedingly 

fnjadidal to the mercantile interests of the country, 
should greatly doubt whether, under such circum- 
stances, a vessel could be sold free from lien. There 
was another question, which was originally raised in 
this case, but which has been in some measure with- 
drawn from the attention of the Court, becaosc it was 
not earnestly contended that the Biazilian law was 
proved. It is very important, however, to consider 
tlie effect to be attributrd to the law of a foreiicn 
country where a sale of this kind takes place. We 
must carefiilly diatinguish between the law of a 
foreign country, where a British vessd is sold to a 
fordgner, and sales made by one shipowner to ano- 
ther where the muniripal laws of England must be 
strictly enforced ; but we must also take care not 
to confiise with these, sales under the direc- 
tion of a competent Court. There waa a period 
in the history of the sale of British ships wlien the 
law applicable thereto was heU more strictly than it 
is now. The inclination of the Courts of Common 
Law went almost to the extent, that a master could 
not, under any circumstances whatever, sanction the 
sale of a ship abroad, unless invested with authority 
by his owners ; snch was the principle in Said v. 
Darby, I0East,I43. In later days I think a wiserview 
of this question has been taken, because I consider 
the law now to be, that where an urgent necesnty 
exists, which the matter cannot meet, it is compe- 
tent to him to sell the vessel. I will now examine 
the facts of this case itsdf. Has the sde arisen from 
absolute necessity, and has it been a bond fide sale ? 
I will assume that the sale has been bond fide, be- 
cause it is not necessary to raise that question ; there 
iscertainlynot anyevidence toconvince the Court that 
there waa any mala fide* on the part of the purchaser. 
Whether there was any ma/a fidet on the part 
of_ the master, is anouier and different question. 
His conduct is by no means satisfactorily expUined. 
It was in the month of May that the vessel put into 
BaUa, and the Court is, as I have dready remarked, 
without anv information as to what took place on the 
voyage. The surveys made undoubtedly reported 
that the veisel, in order to be repau«d, would require 
a larger sum of money to be laid oat upon her than 
she was actually wortn, and that she waa not sea- 
worthy. It would have been more tatisfaotory to 
have had the evidence of the British Consul than to 
be told the matter went on through him. However, 
a sale took pbMX by public andion, and I onght to 
infer, in justice to the pnrdiaser, that such sale took 

place with the consent of the British Consul. The 
pnrchaser alleges that no notice was given of any 
lien. Then come the questions,— first, was notioe 
neceasaij ? secondly, if so, who ooght to have nven 
that notice ? If the British Consul waa aware of the 
lien, it was his duty not to sanction the sale under 
any drcumstanoes whatever, without causing public 
notioe to be ^ven of the fact. It was also tae duty 
of the auctioneer, and, i fortiori, of the master 
himself, but from these Individuals we have no notice 
whatever. Who is the purchaser is also ingenioudy 
concealed even from the proctor in the cause. It b 
alleged on behdf of the pnrchaser, that he never 
saw die British Begister. Why, it is • matter of 
astonidiment to me, notorioos as it is thst the 
British Register is the great title to all ships, and that 
mortgages and bottomry bonds are endorsed upon tt, 
that any man should purchase a British ahip, even 
in a foreign port, without requiring to see the Regis> 
ter. I do not mcnn to exempt from Wiimc the mas- 
ter who did not shew it, or the Briti^li Consul who 
did not look at it ; but it was an act of neglect on 
tlie part of the purchaser himself. It is admitted 
that when there is a lieu on a ship it can only be 
rtmoved in a legal form, yet no inquiry is made upon 
tlie matter. There is one gentleman who represents 
himself as having been present at the sale, and he 
declares that he heard notice given ; but there are 
five or six who state they were present, and did not 
htar it. It may be, however, that the declaration 
took place when they were not present ; but my 
judf^ment will not turn upon the fact that notice of 
the lien was or was not given. If the British Con- 
sul, the auctioneer, or the master knew of the bot- 
tomry bond, and the master must have known of it, 
for he signed it, and they concealed it from the pur- 
chaser, they were participators in a fraud. There is, 
bowever, .siill a fact which Bri«es in this case iode- 

Sendently of all others, to whidt I must advert. I 
not find it averred that money might have been 
borrowed on bottomry for bringing the vessel home. 
If money could have been borrowed, there it an 
end of the necessity, and it is clear that the master 
had not authcnity to sell the veeseL That is not tita 
law of Rnjfland peculiarly ; but it is the law of the 
whole ssaritime world for the protactwn of all aUj^ 
owners against all masteia. I have not therefore to 
consider whether this is a case of necesnty or not. 
But sumiodnK the vessd coold have been bron^to 
Engbmd, did tlie bottomry bond oontinne, or 
did it not? The caae dt«l, Ttompton v. 7%e 
Koffoi Bxchanpe Aaatawue Company, was an actios 
on a policy of assoranoe upon a bottomry bond; and 
the qoeation was^ whether the iasnred eonld recover 
ajjainst the inanrer, anleas it was proved that th* 
nsk mentiiHied in the policy had actually taken pUoiL 
and the bottonuy bond thereby lost; and Losn 
Ellenboraugh decided that the Doixl could not be 
lost so long as the vessd remained in specie. That 
waa the law of the land long before Lord Ellen* 
borough declared it so to be. If a ship waa onee 
bottomried, the bond attadied to the very last planl^ 
and the bondholder might have that sold forhia 
benefit. I have no doMt that whan thia veasd 
arrived at Bahia, if aha waa unable to prosecute hw 
voysfo, the bond inatantlv became due. The 
condition waa gooe, and the bond was ^ood. That 
is the doctrine Uid down by Mr. Jnstioe Story in 
the Draco, and that waa the doctrine I hdd in the 
case of tlie Dante, I do not think it necessary for 
me to enter minntdy into the question as to whether 
all these repairs were necessary or not; perfaapa the 
sum of from 2,0001. to 3,0001. waa raoniata, in order 
to make a complete rqidr ; bnt^ on tse other hand, 
the vessel might have been bronght to this oonatiy 
for a mudi smaller snm. I have, on the whole oif 
the caae. come to the fbUowmg oooduaioB : — 1 tUnk 
that a British vessel, coming into a foreign poi^ 
cannot be sold by tha master, so as to confer a per- 
fect title agdnst his owners, and eztingnish all 
mortgage dainu, and all lieos on bottomry or 
wages, even in a case of necessity. I do not say it 
might not be done where reeonne waa bad to a omut 
of jiutice, and a decree waa made. That wonld 
ovoride all other cooaideratioas to which I have 
adverted. I apprehend that tiie geoesal maritime lasr 
of the world la directly opposed to the saleof veaaele 
in the manner fai which thia baa been sold, and t» 
the oonaeqnencea attempted to be eogiaftad npon it. 
I am of opinion that it ia the daty of focaign ngr- 
chaaers to open theureyea, and to take care what Kind 
of bargaina they make, that it is their duty to guard 
themsdvea against liens which adhere to the 
ship. I am not satisfied in this caae that these wie 
any necessity for a sale, and tbtrefose my Jadgment 
goes alao on that lower ground. I am therefore of 
opinion that this was originally a valid hoed, and 
that it can be lawfully enforced against the shm. I 
also give costs, it baring been tliewn by affidavit 
that the vdne of tha veaad woald not satitfy the 
bond. TheConrtdecieedthevaasdtobeaold. 

Digitized by 




[Vd. II No. 430. 





YwammacawLio* EnSBX Bbcci'b Coxrwt, reported bj 

Q. S. Aixsm, E>q. BuTuter-at>£aw, 

Oimi cm BiirxsvTTcT, Lomoir, reported by Jomr A. 

FomnAiTQCi, Baq. Bernster-at^Lenr. 

OMarov Kunmomr, Dinmr, repoiied by J. Litt, 

Eiq. Bacifater it It . 


Sahtrdoj/, April 5. 

(Before Mr. Commissioner Etans.) 

Ex parte Edwards, re Haubb. 

BquUabl* mortgage — FIxlurei. 

fiMtmrtt on premitet eharaed by mag of equitable 

mortgage pate to equitaite mortgagee. 

The bankrupt was indebted to Ednards in the snm 
of 2S(U. secured by the deposit of a lease, accom- 
panied bya memoiandom in the foDowing terms, 
Tix. : — "The lease you hold as collateral security for 
ISO/. I am ready to convey to you wheneTer called 
tip«n so to do.' There were on the premises com- 
firiaed in the lease fixtures of the value of 25/. llie 
framises and fixtures were sold, but did not realise 
•offident to repay to Edwards the snm advanced by 
Iiim. Edwards now appUed to prove for the residue 
of his debt, and the ijuestion was, whether the 
fixtorea formed part of his security, or whether the 
B i n i gBW^ were entitled to receive the snm for which 
they sold, snch sum to be added to the residue to be 

Sagley, tea Edwards. 

JciMt, solicitor, for the assignees. 

Kr. Commissioner Etans.— On the authority of 
B* parte Backhorue, 2 M. D. & De Gex, decided 
that Uis fiztnros passed under the equitable mort- 

B sg ett sa by Jon Lstt, Eaq. BacnMer.«t-Lnr. 

Satwrdttf, April 12. 
(Bates Hr. Commiarioner PLtrmur.) 
Re Jama HtrKLBT. 
O m Malm g property— ArreU qf bmakrnpt ifier 
A hniinpt wko ie about to aieeoitd, or to remote 
artamaeat kit properif, may be arreeted tmder 
«i» 4M atetion ofthelriok Baitknipt Act, 12 it 
13 Viet. e. 107 {Bi^Ueh om/eyMw, 12 t( 13 Vict. 
«. 106^ «. 94), (tMa thoagh adjttdiaUUM hat taken 
place; and upon being iroagktupand eaamined, 
ko may be iieekarged by ike Commiteioner, tuek 
Utekarge to be indormd am tke book tfthe war- 
rmtlupm vMe* kaie irougktjrom tke priton to 

The 4th seoiion of the Iridi Baokrapt Act aad 
ilM 99th section of the Engfish Consolation Act 
aro almost identicals tiiay eaaot that where a Com- 
aiiaion has issned, or a patition for adindicBtion has 
beea ffled against any trader, and that it shall be 
praradto the satisfaetioA of the Commissioner that 
waih persoB is aboat to quit Inland (or EngUnd), 
«r to naova or eonoeal any of his goods or '•huttnls, 
with intent to daftaad his orediton, unless he be 
fothfrith appiefaended, it duU be lawful for the 
C owmi s s i o nsr (or Conrt) to israe a warrant to swxe 
th« boi^, papen, goods, aad chattels of snch 
tiailn. or to asrest his person, and him safdy keep 
«nlU the expiratioD of the time allowed for opening 
■nab commiasioB (or adiadieation), or antU sbcC 
pewm shall be a4iadged bankrupt, and be there. 
BpoB dealt with aooeiding to tba laws rehOiDa to 
baahnpts. It has been held that if snch penan 
wsaaoaireslsdbafbrsa^udicatian, the warraot was 
th«k spent, and that sadi wanaat did not apply 
to an aneat after adjaiication. The only daci- 
•Mon the point here was that of Re Craaepton, 
DMHe Mr. Jnatiae Moon, ia diambers; and the 
C osMn i ssi onws having doubtad ita prapnetv, they 
nMted a wanant some wsaks ago, after adjudiea- 
00% IB the case af KonaUson, but he had escaped 
toiaa srica, and it was not exeented as far as his 
peana was ooacamad. In tiie present case, the 
baahmpt waa a Inder, raiding at Kinsale, in the 
oowttyofCark) aad on the messenger of tke Coart 
goiag down, ke foand Oat the bHtenpt was shnt 
vpJM Us hoBS^ thadoortof wUeb had to be breken 
opaii bat the house was perfectly empty, tha goods 
haTms been previoasljr rsmored and sold by aoc- 
tooBj OBa«Bd«ntofthe»efcots,i>i»,tethepoti- 
toamg credttus, tha Messrs. Ltom, of Cork, ap. 
^M fcr a wairaat nader the 4Ui section, natwitb. 
■taodiBc that the adjudication had taken place; and 
• tpeaal messenger faavfaig beui swnm in, the bank- 
cnotans aoasted as he oaaw oatof the raUway train 
^«*k oMmyad to |>ison in DobBii, and upon 
•eaMUng hu penoaa hoadrad paonda iB boik notes 
f!"»«»«?»,«n»din*haBningof histest. Hewas 
orougfat bafoia the CoauaiaaioBsr on the faDowing 
«ar> md examined at considerable length touching 
haest^andtrfTects; and tha petitioniDg crediton 
not Mcking to detain him ioither, the Conrt directed 

that he should be discharged. The form of the dis- 

Chstve was onder the 6th section, which empowers 

the Commisrioner to make such orders as to him 

shaD seem meet (the same is in substance contained 

In die 99th section of the English Act), and was 

indorsed on the bade of the warrant by which the 

bsBkmpt was broi^t from the prison to the coort. 

The indorsement was to the effect that the banknipt 

having been arrested by wantmt under the 4th seo- 

tioa, and having been brought up and examined 

tondiing his estate and eOiscts, and his surrender | John, being seised of prsooisas held for three Em 

having been taken, the Conrt doth discharge him i and ninety-aine years eo uuuaeu t, one life haaa ati 

it, B'.itto let tkepremite*, and gitt* the rent fe 

My soa Cybr kit mppart," 
HeUikat a tooktka aktolmU tataU im Oe f*. 

Held alto, tkal tke \ Viet. e. i&, had put red tU 

perianal ettate on a partly. 

This was a suit for the declaratioa of the plaintif i 
rights as devisee of John Malcnlmsosi, on the cos. 
structioa of whose will the q«esti<»i tamed. 7k 
facts wase, Jaoiea Maloohaaao, the fstha tf 

firom the said warrant, and grant him protection 

till the day of . 

(Nora. — ^This case is considered of great importanoe 
to the trading community, as it sanctions the principle 
of arrest, afnr as well as before adjodieatioo, where 
the trader is abont to abscond or conceal property. 
Heretofore, in order to effect an arrest after adiBdi 

in existence, by his will, beaiiag date Dss Itt 
Amust, 1840, devised in the fbllow' 

" Fburthly, 1 leave to my smi, Thoaaaa ] 

the house I live in in Banbridie, the back-yaid i 

farden, and thetwo fiaidsin BdyhaUy, &C. tolMbft 
in trust for my son, John Maloolmaaa, tbit k, 
tlioBias is to let the hoaa^ ba^.yvd aad faim, 

cation and before snnender, <be bankrupt should be and said field, and giva the rents thareof, sftar f^. 

served with a summons to attend, to be examined, 
and, upon disobeying it, then a warrant was issned. 
In some cases such summons was only a notice to 
the fiaodulent trader to escape, whilst, by the pre- 
sent proceeding, the arrest is effected without any 
previous notice or examination whatever.) 


Bepwted by J. LsVT, Eaq. Buri>ter.«t-Lwr. 

Jfare* I85I. 
(Before Mr. Commissioner Baldwin.) 
Se Allxn. 
jl0eoNmia<ia/ioii bill— Contracting a debt witkout 
probable meant iif payment— Evidence ef/raudu- 
lanl intent. 
Accepting an aceommodalion bill at a time wken 
. Ike acceptor it unaUe to pay kit debit contracted 
for ealuaUe contideralion, it contracting a debt 
toilkout probahlt expectation qf paying tame: 
and allowing tke principal leko received money 
for tke biU to tell kit ekaitett and leave tke 
country witkout informing tkepartiet wko dit- 
eaunted Ike bill wUl be deemed evidence of an 
original fraudulent intention. 
The insolvent was suppogrl«d by Creigkton, and 
opposed by PUUipt and Levy, for the Royal Bank, 
under the following drcumstances : — It appeared 
that he resided with his brother in the county 
Meath, who was a brmer and srazier, which busi- 
ness the insolvent also followed. A bill for 700/. 
was drawn by his brother, and accepted by him, for 
which the Royal fiaak gave cash. This bill was 
renewed once or twice, and on ^adi occasion ac- 
cepted by the insolvent, his brother being the drawer, 
and, whilst die last renewal was mnnmg due, the 
brother sold ail his iarming-stnck and (£attds by 
anotion, and abaoonded to Ameifea, without the m- 
solventaver havmc mformed the bank of what he was 
doing. The insolvent himself was dien arrested on 
a fiat or judge's order, as it was apprehended that he 
intaaded to follow his brother to America ; and he 
now came before the Conrt to seek his disdivge. 

The onrasing counsel contended, first, that accept- 
ing an aooommodation bill diat the party was not 
prepared to pay, or at a time when he was unable to 
pay his other debts, was oontracting a debt under 
die 68th section of the Act (English aiulogous, 1 & 2 
Vict c. 110, s. 78), without probable expectation of 

Eayment; and, secondly, that omitting to inform the 
ank of his brother selling bis chattels, and going to 
America, was evidence of an original intention to 
obtain the money fraudolendy. 

Creigkton, for tbe insolvent, contended that the 
renewals of the bill ought to have led the bank to 
watoh more closely, and inquire more partieolarly 
mto the solvency of the parties. If they had not 
renewed the bill, they might have sued the brotbor, 
and recovered the amount before be left tbe country. 
The loss arose from their own laches: thev were un- 
able to trace a shilling of the proceeds of the bill into 
the nossearion of the insolvent, and his schedule had 
not been Msifled, although there was a r afe i eu c e to 
tbe chief deric for that purpose. 

The CoMMissioMBB was dearly of opinioo, that 
all the facts of tbe ease AiUy sustained the points of 
opposition that had been raised. The interests of 
trade and the protection of bankers required that an 
example should be made,'and he would remand the in- 
wlvent for sixteen months from the date of the vest- 
ing order. 

ing tbe ground rent, to my son John for Ui ^p- 
port," and the testator appointed Tboaoas Hdnhs 
son trustee and exeevlor. The taatator, atlktias 
of his making diis devise^ had four otka ng^ 
Samud, Thomas, Jasses, and Richard, soi om 
daughter, Jane ; to eaofa of theae, except Smb^ 
who was previously provided f<v, tha testat* (sn 
absolute mterests in tbe premiaea devised to Htm, 
John and Richard were both minors at the dite c< 
the will. In May, IMGi John Maloofaatoa died of 
full age and umauried, having pievioasiy, 2Gtk Ja^, 
1843, made bis will, whereby he devised tla ;te- 
misesgiven him by his fethor, to Thomas aad Bidmi 
the plaintiff, subject to a legacy of 100/. i ImpJ 
thereon. The defendant daimeo, as heir-at-las <t 
Samuel, who was the eldest brother. Tbomas 4isi 
in April 1847, having bequeathed his moiety la la 
sister Jane^ who waa also a defeadaot. James «« 
always a person of weak mind and capacity, bat bf 
a consent entered into in the eaaae ha aas adaittM 
to be capable of makiui a wiU. 

Sutton, Q.C. with Rom Moore, fiorthe phiatift. 
— TheexpreesioB " his support." hss been held ts 
pass the whole estote, and the other iiiiiiiiaiiiai is 
the will indicate an intantiOB in die testator dat 
this estote was not to go to his heir-at-law. He 
state of John's mind is a reason for net giriog bim 
the actual management of the estate. Tkoaiss took 
an absolute estate in truat. (1 Tint c. 26^ >. 28.) 
Tlerefore his crs/ai ;ii< trutt most lim takes s 
similar estate. The testator had four stlxrduUra^ 
ail of whom took absoiate intstesti ia tk 

irtel Utfntt. 

Baporteit by J. Bucxaui, Bsq. BarTiatsr-at>Iaw. 

Jan, 28, and Feb. 5. 


WtU—Devite qf freekotd eitate-Conttruetien— 
Intent cf ceatni que trast— 1 Ffc. C. 26. «. 28. 
30, » 31. —. •"• 

A.btimg itited qf premitet qfa/rteMd tenure, 
davindtktmloB. "to be kept in truit fir C that 

devised to them, and though Bickard «B> iaa«f« 
than John, yet the testator giies even to Ua sa 
absolute estate. This is dear evidence ef iutm- 
tion. He cited Ntwland v. Sbtptai, 2 C. V. 
194; S. C. 2, Ex. ca. ab. 139; Pesiv.Pele, Aab. 
387. And as cases in which there wM m 4edsa>- 
tion of trust subsequently to the aoa stUidBg da 
age of twenty-one. {Ckallenger v. Sbi^trd, t 
T. R. 597, recognised by Lord CettBahan; Maori 
V. Clegkom, 12 Jur. 591 ; Knigkl v. £eUy, 3 Mas. 
& Gr. 29, S. C. t 3 Scott, N.R.) 

Brtwiler, Q.C., Jndrewt, Q.C. and S. Ullir, 
tar the defendants.— The cases dtad bate no tp\^ 
cation. The Conrt cannot declare the intentiaa 
against tbe positive mle laid down liytlie stMte. 
Thomas takes but a life estate, and ms ctthu fu 
trutt can take no more. Hie 28tb sectioB awliesoali 
to persons taking diemsdves a beDefidal mterat; 
and 1 Vict. e. 26, s. 30, gives die same estate to thi 
teitm que /rwsf aswas taken by the ttasles. Ita 
question is, are there words in the will to riiew i con- 
trary intention ? There is no authority in tbe boda 
upon this section. On the 24th secMoa it has bees 
held that the intention must be apparent. ( Cbfa r. 
Scott, 14 Jur. 25 J 16 Sim. 259; 1 Mac. * G«. 
527.) The words "for support" mean durinjtta 
life of John. Sect. 30 was intended to put sn end 
to tbe indefinite state of the law aa to the eilste 
taken by trustees ; bnt the question of the etistaia 
by implication of a liferent estate is stHl open. 
(Jarman, Wills, 228-30.) The power to let i« con- 
sistent »nth the lif^ estate ; there are no wonb « 
limitation in this case as in Afoorev. CSegkom, wa 
tbe other cases dted. Newland v. Skmkeri mt 
qasrrelled with by Lord Hardwidce in F^ntrtnr. 
i^Mereau, 3 Adc. 316. If the question of inteitii|a 
is open to us, tbe case of Cole v. SeotI roles this 
case. Ifaih v. Coatet, 3 B. & Ad. 13 ; TrigonmU 
V. Sydenham, 3 Dow. 194, P.C. were also dttd. 
Id all the cases dted the devisees got somedmg 
more by the will than mere support. 

B. Sfep^nt appeared for Jane MaloolmsoB. 

ilDss Moore replied. 

Wednetday, nb. 5.— The Jjoto Chakcbixo«.-" 
The bill in this was filed to ascertain tbe rigWia^ 
persons daiming as devisees. rHislordsirip stated As 
nets.] The question for oonsiaerstion depends oo the 
construction of tbe devise br James MalcohiBa ta 
his son Jolm, and is, wlietner the latter iakssW 
entile i ntere st in flie prenuses devised or fat i^ at 
only. The wiH was made after die passing of wt 
recent Statute of WiUs, 1 VIA. c. 26, wearsBfl* 
therelbra embinwsed bf die ttdmieifiiltt «f v* 

Digitized by 


April 26. 1851.] 






yw i oi n ly existing Isw, A derite of this nature 
««iM, before the |)ae!<injr of that atatute, hvw oon- 
m^ oaly an ntate for life, bat the 28th aectien 
lias altered the law in that respect; it is now reTcned, 
•ad saeh a derise tpyea the entire intereat oranch 
lOtlm estate as the teatatorlwd in bis power, and the 
Mq^nanon of a cnntnrv iaiteBtion is oecessarr to 1 iia it 
tiwtealate. ItiscDntei>ded,oathe]>artoftheplaiatifl', 
4hat the eonstniction of the derise most be governed 
bf tbe prwriaiaaa «f the atatute (s. 30), that where 
then is a derise to trastees, the cittui ^t trtut will 
take tte entire interest given to the trustee, and that 
im«nii>7iasthat doctrine to tiiis case the trast will 
mare to the orstat giw/nu/aslf madedirectly to him. 
A ^oeatieo has been ^soassed as to Ae laeanioj; of 
the deriaee to trastees is tbe 30tb and 31st sectioas. 
It is not easy to say wbeAer these sections relate to 
tbe estate to be taken by tbe ttthti fue tnut or to 
■en ^rust estates. It appears to me t1>e estate of 
the emtui pie <rw/iaio be determined by the estate 
-nvvn to tbe trastee, as in tbe ease of Ctallmfer v. 
Siepkerd. I do not think this is very material to 
eonaider, as on the whole I am of opinien John 
Maloalmson took the entire interest in the premises 
(laffsad to bim. The first case referred to was that 
4i MTewhrnd v. Sitfptra, 2 P. W. 194. auppoaing 
<that to be a valid decision, it isanaotbority tosbew 
ttat the devise in this case to the trastee in tee 
voaU give John Maloolmson the entlra estate; that 
CM* waa observed open in Fmtrtm r. Fa»er—i, 
'wHdi has never since been oaermled orde(^iTed not 
to bo law. The nutrginal note in Ckailtm§*r v. 
Sitaptrd is eonfirmatmr of this view.aod that mse 
"•"lowed in KniffU v. Seliti. aad conArmed in 
abort V. Clegbom. The lywd Cbaneellor. speaking 
<iCktMt»fn- V. Shtpiwrd, savs. -in Knipki v. 
IMbu, Chief Jastieellodal savs. This ease cninotbe 
MBigoidied froan that of ChaUettotr v. Shtp^erd, 
vttcre it was held tint when an estate in fee is de- 
»ia«d to tmstsca ia trast for A. B. without any 
lir ai tetan ii of the estate to the ttntui pu tnut, the 
lat ter tab es the beneficial iaterest in fee. these being 
&• very words of the m arg i u el note in Chmllenftrv. 
Skepptrd. Thos, then, the jadRsa have that case 
eitad,ooBcarinthedeeisioa,aMlaotuaoait Norale 
tbere&re, be better eataUiahsd than this is.'" 

I his object in making this gift ? 
a piaia intantieo to restrict it. 

If so, thwe most be 

t^aUaiftr T. Skepftrd was a^Jin observed on in 

m» «aae of Bradthme t. BradtAmw, & Ir. Bx. R. 310, 

ia tha CofBt of Bx. I dteresaid. ineonunentingon 

tiMse aaaes, " but wbeo we refer to tbe «aae of 

Kmi^ V. Selby, where praeiselr tbe same qmatioa 

<HM before tbe Coart of C. P. in England, w« find 

'■*■» it was held ths« a devise of red estate to 

. Uaslata. their heirs aad assigns, in trast "to theaee 

«( T. If. and J. M. and theohiUmt of the aid W. 

ILind Mary Knight, in cqnal shares and pre^sc 

■aaa, as tmants in ronuann," gave to the ertlid sue 

matan astate m fee. Tbe Ceort conridered t4ie 

^ "»_ **«««.9"- V. Shrpptrd as a faiodiag 

y?.*"!'* "Pon *• »«»y point, aad the judges, in 

Wiamng their opinioM. ecpnasly stats that the 

*W ground npnn which OmUengtrr. SktpptnlwM 

oeodsd was, that wlicn lands are given to trastees 

■■* ttaw- heirs in trast tor A. cMftri fne tnut 

totas tiw abs<dnte interest, theagh no warda of 

tettatMB on and in the deelaratien of trnst as to 

mm." Tile Court decided that case on the parti- 

nitr reading of the will. My brother Bioherds 

aoManrad in the opinion I then expressed as to the 

. •aathonty of CAalltnper v. Bhtppenl, fcat ny brother 

lOoy entertained some doobt of it; the Oowt 

r, decided that ease on ether groands. But 

re soase parts of the will in tint <Bsa not 

1 of appiicabiKty to the pessent. If the wiU ta 

^eaaaatopped at the words, " toba kept in trast ibr 

MhDHdcaimson," he wsuld nadoabtadhr have taken 

•tha esttat interest In ooaatmfaif this Act of Pariia- 

■eat, we most, as fer as possible, constrae it by Oie 

JMw^y existinc mka, and in CWr ▼. 8*»it, the 

tfcflrtChanosMor Cottenham adopts this view j he says 
627), "Now, 1 find, on tha fcir eanstraction of 
»^in question, adopting tiiose ndss of oon- 
<na«nmi which are nsuaUy adoptsd in constmtnr 
^fOM, that tha contrary attention dees not appear." 

■ •e eoaaider these rnlea of eonstniction, it will be 
jwad^tiiat when there is, in the prsvioBS part of the 
■Jkraiasnt, a dear devise, oonfening an absolute 
«*ta on the devisee, it would require dear words to 
«* down this limitatinn, and givo him a lesser 
•rtata. Tbe rale is stated in TMwmAill v. Hall, 2 CI. 
OtPta.afi: " I hold it to be a rale that adnita of no 
«mfrtian in the constradion of written instroiaents, 
tint, w here one interest is liven, where one estate is 
«M«e*ed. where one beaeAt is bestowed in one part 
af an iutnunent by terms dear, naambigaons, liable 
tOBO doubt, ftc. it is not sufficient vou should 
^* a possibility; it is not even snfBeient vou 
•bsald deal in probabilities ; but yaa mast shew 
asaiathing in another part of that instraawnt which 

■ asdaciBive the one way as tbo other terms were 
*«"B« the other way." There are no word." in this 
•ansa to alter tbe previous derise. I naay go Airtber, 
maay that the words "for support" laidcenodif. 
*Mw ia tfae4e*ise. Tha matter to be oonsidsied 
It,— baa the testator, in tbe first instance, expressed 

▼OS. zvzz. vo. «ax. 

The Statnte of Wills has placed real estate and 
personal upon the same footing. {Cole t. Scott, 
ubi sap. i29.) I am of opiaioa, though the devise 
in this case is of rents wd profits, it passes the 
absolute interest ; there are decisions upon bequests 
of money in very similar terms, in which it has been 
held that the absolute interest passed to tbe eeitui que 
tnut. Billing v. giUimg, 5 Sim. 232, establishes 
that proposition. It has been said that John Mal- 
colmson was a miaor ; aad, tiuthcr, that be was in- 
capable of conducting bis own affairs. In Billing v. 
Billing the devisee was deaf and dumb : the bequest 
was in these words : — " 1 bequeath all my money, 
effects, 4c. to (brastces), thtit they do invest and 
place the wKole proceeds, &c. in such securities, &c. 
for the use and benefit of my nephew, and to be paid 
at such time and in such manner as they (the trus- 
tees) shall think fit ; and when the said (nephew) 
shall arrive at the age of twenty-one, then that the 
said (trastees) shall by deed covenant and pay the 
. interest or prooeeds of tbe money and effects to (hie 
nephew) as they shall think most for bis advantage, 
in monthly or quarterly payments, ibr and during 
his natural life." These words are much stronger 
than any in ^e oase before me to shew an intention 
to give a life estate only. The Vice-Chancellar 
(ShadweU) says, " In the first part of the will there 
is an absolute boqoest ; aad I cannot cut down that 
which \» plain haoeuse there is, in a subsequent part 
of the will, na imperiectlv expressed intention thait 
James £. Billing should take for life only." I find 
in the gift to John llaloobnaon a plain bpqncst of an 
absalnto interest, and the only words relied upon to 
limit that estate is, that the trastee is to " let the 
pranises." In Bitktraa v. Cobbe, 5 Myl. & Cr. 145, 
a bequest in equally strong terms was held to pass 
the absolate interest ; I have not in this case any 
naterials to out down tbe absolute interest given by 
the statute j the subsequent declarations are not, in 
my mind, anffident to out down tlie previons abso- 
late estate. These premises may hereafter be held 
for vean after tbe expiration nf the lives in the lease, 
in tlMlt aventthe anthorilies I have referred to settle 
the spiastian as to persenalty, aad I ^o not think I 
i ca nbioM di&reotly as to the realty. 

•04*Hlv QtamK. 

■eportsdlKr Btoajuw Ow i r it a « Wimroitp. Kiq. of lh« 
lour bnpU, BsRiatw-«t.Law. 

Fe». 27<m<f /ttfy, 1850. 
Coleman r. Mrllbbmi. 
Selilad aeeoimt* — Opening aecounls or gieinti teme 
to lurebarge and /altify~Seeondary evideme*— 
Whir* a grou turn had been aUeptd in an aeeomU 
betteten an attortuy and hit client, at profei- 
tional charge*, no bill iif cottt hating been deli- 
ttrtd, and it ^fUrwardt tpvearing that nirh 
grou turn eontiderably exceeded uhal teat rially 
dnafor pn^ettional eharget, it wot 
Htld, that tie aeeemnt mutt be taken at on open 
aetoumt, and that it could not bt tet rigJU «a a 
dtertt to overeharge and faltify. 
Where it not propated to read the entry </ thi de- 
fendant' t clerk in a diary, tucA clerk hating be- 
come Itiaatie, it wot 
Held, that at the mating of tit entry formed no 
part qf the clerk' t duty, tueh entry conld not be 
road at evidence. 

This was an appeal from the decree of the Vice- 
Chancellor of Sofdand directing the reopeniiie of 
acoounts between the defendants Mellcrsh aad Mar- 
shall and their late client, William Coleman. Tbe 
plaintifl' is the widow and administratrix of Coleman. 
The bill stated a purchase in 1829, by Coleman, of 
the tithes at Dorfcinfc with a view to iceale to the 
owners of the lands a&cted by the tithes, and being 
in want of monev to efiect the pnrdiase, employed 
Mellersh and Marshall, solicitors, who agreed to 
supply him with the money required ibr the pur- 
chase, in eoosideratioa of a bonus in addition to 
their professional charges. This bonns was aliened 
by one of the defendants to be SMI. by the ether 
1,9001. There had been, it was alleged, no deUvary 
of aoconats to Coleman, and tbe bill stated that 
th^re were apparent errors on the face of the accounts 
which were sufficient to open them, aad that the 
bonus alone would induce the Court to reopen the 
account. Tbe transaction between W. Coleman and 
the defendants formed tlie subject-matter of seven 
acconnts, extending over Ae period between 18^ 
and 1832. It was admitted by the defendatits that 
tbe first acoonDt, ameonting to 3,200/. and for which 
W. Coleman had given a mortgage secnrity dated 
the 28th October. 1830, had not been sigoed by W. 
ColeoMn, and that it coataiaed an item of MO/, for 
professional charges, in respect of which no bill of costs 

. had been sent in. It appeared also, by a reference 
to the book from which the acoonnt must have been 
I taken, that the real amount for professional charges 
I could only have been 524/. 18s. 4d. According to 
I the evidence of Mr. Limbird, a clerk of tbe defend- 
I ants, tbe difference was accounted for by stating that 
I there were certain fees to bo paid to counsel, ajid 
other expenses wluch at the time it was agreed be- 
tween W. Coleman and the defendants should be 
I considered as included in and settled by the pay- 
ment of the sum of 600/. It was eodeavourcd to 
be proved by tbe evidence of this clerk that 'W. 
Coleman had carefully inspected the accoagts, 
and had all tbe documents connected therewtdi 
produced to him. The six subsequent accounts 
were all signed by W. Coleman, the seventh 
and last containing an item of 500/. which was 
treated in the argument as being in respect of the 
bonus. There was an indenture without date, but 

? roved to have been executed on the 14tb of Mty, 
830, by which W. Coleman secured to the defend- 
ants a sum of 500/. with interest, but it appeared by 
a raemorandnm. dated the 14tb of May, 1830, that 
only one-half of this sum was then actually due. It 
was said by the defendants that this 500/. had no- 
thing to do with the bonus, and also that the deisd 
was never ac.ted on, the 500/. secured by it being 
brought into the first of the seven accounts, rad 
forming part of the 3,200/. in respect of which tlie 
mortgage of the 28th of October, 1830, had been 
given by W. Coleman. 

Bethell, R. Palmer, and Rumphreyt, for 4>e 
plaintiff, cited Horlock v. Smith, 2 Myl. & Cr.495; 
Pickering v, Pickering, 2 Bea. 31, 

Sluart and Gi^ord, for defendant Mellersh, dted 
Allfrey v. AUfrey, 1 Macn. & Gor. 87 ; Inlet T. 
Moore, XT L. J. Chan. 383 ; Morgan v. Leiett, 4 
Dow. 29; ira/«r» v. Tayler, 2 Myl. & Cr. 526. 

Roll and Fleming, for deleodaat Marshall, le- 
ferred to VTillit v. jemegan, 2 Atk. 251; Harrit T. 
Tremenheere, 15 Ves. 34. 

Bethell, in reply, mentioned Ifemman v. PaMe, 
2 Ves. jun. 199; Jenkint v. Gould, 3 Russ. iSi} 
Monletquieu v. Sandifi, 18 Ves. 313 ; Croasley y. 
Parker, 1 Jac. & W. 460; Bemellr. Taylor,^ Vet. 
381; Patterihell v. Tmrford. 3 B. & Ad. 890; 
Phillips on Evidence, vol. 1, p. 322 ; vol. 2, p. 210. 

To prove that Coleman had gone over the acconnta 
with a clerk of the defendants, who had sinoe be- 
come lunatic, it was proposed, during tbe argumebt, 
to read from tbe diary of that clerk a memorandiun 
to that effect 

The evidence was objected to, and it was claimed 
to be admissable as a contemporaneous entry, the 
derk's insanity being equivalent to his death. 

The Lord CHANaF.jyi.ou. — I think the evidence 
iuadmissable, for the entry appears to be nothing 
more than a mere private memorandum ; it was no 
part of the clerk's business to have mode it. 

/a/y, 1850.— Tbe Lobd Cbancbllor.— 13ie 
decree appealed from directs an open account to be 
taken between the late Mr. Coleman and Messrs. 
Mellersh and Marshall, attorneys, at Godalmiag. 
The petition of appeal not only disputes the pxo- 
priety of this direction, but prays that the bill nay 
be dismissed. This is proved by tbe defendants' own 
caae to be an antonable proposition, as will SMsar 
from the observations I am about to make. Xlie 
only question is, whether the case proved justifies ue 
decree as pronounced, or whether it ought to have 
been limited to a direction that the plaintiff should 
be at liberty to surcharge and falsify the ac- 
oounts. There is a material difference in the 
principle on which the Court deals with settled 
accounts with reference to those two kinds of 
decrees, as there undoubtedly is in the effect 
in woi^ng them out. A settled account, other- 
wise auimpeachable, in which an error is proved 
to exist, may be sabjected to a decree to sur- 
charge and falsify upon the supposition that one 
error having been proved, others mav be expected 
upon investigotion to be discovered; but if the reki- 
tive sitoatioa of tbe parties, or the manner in which 
tbe settlement took place, or the natore of the error 
proved, shew that the alleged settkment ought not 
to be ccHisidered as an act binding apon the party 
signing, and that it would be inequitable for the ac- 
counting party to take advantage of it, the Conrt is 
not content with enabling the party to snrchai]ge 
and felsify an account which never ought to have 
been so settled ; but directs the taking of an open 
account, .\moagst the grounds on which the Court 
rests the application of this principle none are 
stronger than tbe fact that the accounCuig party was 
the solicitor or agent of the party sougat to be 
charged, or that the circumstances gave him a COB- 
roanding power or influence over him, or that tha 
iai^s proved that be possessed and abused tbe con- 
fidence which bad been reposed in him ; all thtse 
appear to me to concur in tbe present case. It is 
not possible from the evidence to ascertain widi any 
degree of certainty at what time the late Mr. Cole- 
man first became the cheat of Messrs. Mellerah und 
Marshall, nor does it seem to be very material, not- 

Digitized by 




[▼«L 17. — ^Ko. 421. 




witbalBading the uzietT diipUyed by Mr. limbird, 
the witDSM for the defendsnts, to fix it at the 
♦»♦"■»" of 1829. I cuinot doubt bat their mauge- 
Bient w{& him, and their ilipalatiaii for > bonu 
orer and abore their pnrfeasional diargea, waa oor- 
not, and araae <Tom nie application by lum for their 
Miiitinoe in carrjine into effect the purchase and 
male of tithe*. If Mr. Cdemaa was not a dient 
of Meors. Mellersh and Mamhall at the time this 
stipulation was made, it is clear that it waa the con- 
dition upon which they woold nndertake the duties 
of their profesalonal calling. It wonld seem dear 
ttat the SOM. mentioned m the memoiandom was 
the same SON. for secnring which the undated deed 
waa esecated. And limbird says that such MOf. 
was bronght into the account upon whidi 3,20M. 
ma made to appear to be doe firom Mr. Coleman, 
and for which the security of the 28th of October, 
1830, was giten, and tliat &e 50(U. therein men- 
tioned waa the 500/. agreed to be Kiven as a bonus 
to Messrs. Mellersh and MarshaU. If such were 
the iJMts, the case would be that of a bonus in con- 
ridantion of future profits, secured with inteiest 
from tb» date, taken by an attorney from his client 
Viideranaoeoiint,andby a deed representing that 
the whole SOOf. was an actual debt, the at- 
torney by a memoiandum acknowledging that 
half the sum only waa actually doe. It was 
argued at tbe bar on behalf of Mr. Marshall 
that the SOU., for whidi the undated secnrity was 
given, had nothing to do with the bonos, if thepro> 
position was admisaable aod true, theposition of the 
soHdtor would not be improved. The security re- 
presdota 500/. as actually due, and which, if it did 
not oonaist of the bonus, must have consisted of 
adfanoe* or costs, and provides for inteiest at fire 
per cent, from the date, and the memorandum ad- 
mits that this statement is false, and that 250/. only 
has been paid. It was also said that the interest 
waa never diarged upon thia 500/., but the soUdtors 
took by tbdr security the means of compelling pay- 
ment of interest, and I am considering the transao- 
tioD for tiia purpose of ascertaining tbe position in 
which they have placed themsdves with reference to 
their client, and now tiiey had used the power and 
inilBence they had acqniied over him and his affiun. 
Thoae transactions are left in total obscurity by the 
defondanta, whereas they might, if the &cts were suf- 
ficiently proved, show how the 250/. had become doe, 
and how the remaining 250/. had been subsequently 
advanced so as to entifle them to the whole 500/. ; 
hot this not having been done, it must be assumed, 
upon the groond of the memorandum alone, that 
ae 250/. remains whollv unaccounted for, the 500/. 
h*nin|beea treated as me amonat of the debt. Tbe 
l^oe-Chaacdlor decided this case prindpally upon 
the Hera of 600/. for costs in the Bin, making 3,200/. 
doe from Mr. Coleman : and althoogh there is much 
more in the ease, I think that item quite sufficient to 
aupport his decree. It is proved that at thia time the 
ooats of the solidtors sgainst their dient amounted to 
924/. 18a. 4d., was the whole that, according to their 
■latement, they could have been entitled to demand; 
600/., howiBver, vras charged as due to them for costs. 
Mr. limbird, their witness and derk, endeavoured 
to account for this by stating, that thoe were heavy 
ftes to counsel then due andnnpaid, not induded in 
flidr bills, and that the 524/. ISs. 4d. was raiaed to 
flOM. in order to provide fsr such fees. This, how- 
am; is not the ground taken by tiie defendant Mar- 
ahad, who says, in his answer, that such addition 
waa made at the dienf s request as an additional re- 
muneration; but of this statement, or ^ the 
amount of feea due, no evidence is given. It most 
tharefme be aasnmed that tbe 3,200/7, for whidi the 
eecnrity of tbe 28th October. 1830, was given, con- 
dsted in part of 600/. claimed as the amount of bills 
of coats, but of whidi no billa of that amount existed, 
and the amount in the ImoIcs of the solicitor being 
considerably leaa than that sam. This is not only 
an enor in the sense in whidi tlie term is used for 
the pupose of opening accounts, but a misstate- 
ment and folae repres e ntation deaignedly made. It 
cannot be attributed to the bounty of the client for 
of that or of any soeh intention thm is no proof; 
and if in antidpation of coata not paid or 
aafiertained, and stiefa costs have not been proved 
to have snbseqnently become due, it is ob- 
vions that the secnrity at the utmost can 
onW l>e available for what may, upon investigation, 
be found to be doe. After what I have already ob- 
•arved upon, it appears to me to be unnecessary to 
say anything upon tbe minor points which arise 
npon an examination of this acooun^ making tlie 
%200/. due. These more important points prove not 
only that the accounts were eironeous, but that the 
dealings were snch as could not be maintained 
between any parties, and certainly not as between 
aoEdtor and dient. It was indeed argued fiom the 
pressure of the eaar, that whatever erron there 
might be in the first aoooont, the subsequent accounts 
wonld not beaftcted by it, inasmuch as there were 
no balances on either ttde, and that the suppression 
of a balance really due, or destroyed by a false debit, 
wooUnot aftct a aobaeqaeat acooant; bat it is 

dear that aUflie subsequent aoeonnta are afleeted 
by the vices of this first ; and, indeed, except bom 
the additional difficulties in which Mr. Coleman was 
afterwards involved, the relative situation of the 
pardea was not altered by any subseauent tranaae- 
tions. I am, therefore, of opinion, that the Vloe- 
Chancellot's decree waa right, and the petition of 
appeal must be diamiaaad, with coata. 


woitoM oovmv. 

Bsportsd by 3. Xaoauut, Aa. of tha Inasr Tsasale, 

SrsTiNa r. Tbb Sovth DBVOir Railwat 


/on. 16, I7.(nMf24. 
SaUwaf—It^imetUm^ApplieaiUm tf thtfimi* <ff 
Ike eompaitf to payment oftxpente* ^oStabUng 
an Act of Partiament — Uitno naaw or $e*l y 
the company — Undertaking— sehtme for eomtmm- 
tation of privUeget ef one class q^ ikarthotdert 
in a railway company — Breach tgiruit — D^* 
tnee MweenpnUie eompa ni ee tmd private pat 
The Soutk Devon Sailway Company hating been 
incorporated by Act qf Parbamint, and em- 
powered to raiee eapitat i» Me nmat way, at- 
tained a teeond Act qf Parliament, whereby they 
were authorited to raite, by the creation ^f aev 
tharte or ttoeh, a fiarther turn not agfeeding a 
certain amowU; tueh neir thareo to beofimeh 
nomtnal amoitnt and entitled to each prvritegee at 
the company might determine. In 1847 a resefa- 
(tM wat aecorJungly patted, that a certain imn 
ihould be railed by the creation (ffiharei (ff haff 
the amount qf the original iharet, and that 6 per 
cent, ikontdbe guaranteed for a limited period 
on all colli. Ice. paid thereon, and that tueh 
guarantee ehould not ettelmde the holdert tf luth 
hatf-ihOTtl from parKeifoting in any higher 
rate of dividend for the time being payable 
on the whole iharet. T%e platnkf be- 
longed to the datt qf original ihareholden, 
and, at alleged by hint, the diree t on were 
largely nderttted in the haV-thmrti. liil8S0<il« 
dirtctort endeavoured to obtain an Ad ttf Parlia- 
ment to authoriie the creation tf nav ihmm, to 
bear intereit in perpetuity, at any rate not er- 
eeeding 6 per cent, per annum, but they failed. 
At a general meeting held on the 12th I f ote mb er 
/at/, the diredort recommended a ichemefor the 
commutation qf the primlegei attached to the 
haff-ihartt, limilmr to that prtotoutly propoied, 
and their report wai'adopted, and they were 
authorited to take all n ict ttar y ttept, and parti- 
cularly to apply to Parliament for addUional 
powertto carry out thticheme. ThiplabU^, 
contidering the leheme a» calculated to gitt a 
benefit to the holder! tff the haff-ihartt at the 
expente and to the toit of the original thwrt. 
holdert, filed Ut bitt to rtttrain themfrompro- 
eeeding^ to carry the teheme into ffeet, andmioed 
for an n/wic/ioii to rtttrain them from igtplying 
thefimA or credit of the company in pamnent of 
the cottt, tre. qftoKciiing the Bitlin Parliament, 
and from mring the name or see/ q^ th* com p a ny 
in to doing: 
Seld, that the nature cfthe caie wot not tueh ai to 
make an application to Parliament by the com- 
pany for the pwrpoH of authoriiing the icheme 
in quettion, a breach qf trutt or y^duty to th* 
co m pa ny , the principlei of mieate par tn enh ip t, 
uneonneeted with fubUe dutiei and capable if 
dittolution, not being ttrietly applicaHe to coat- 
paniti qfthii kind ; 
That the dfftndanti, howeeer, were not at liberty 
to apply thefimdt qfthe company in their handi 
inpayment qfthe cottt, Ice. qfto muehqfthe Bill 
at propoted to ^eet the teheme fitr the eoanm- 
Mfo* tfthe prMUgei qfthe holdert qfthe haff- 
thartii but 
That the drfendanti wtreal Uterty to uie the mnn* 
and teal qf the company in tolieitnu the Bitt, 
upon gieing an undertaking that the Miant\fand 
other memben qf the company, allegina thent- 
tdvet to have an advene interett, thould bi at 
liberty to emptor in oppotition to the Bill. 
This was a motion to restrain the defeodanta, the 
dfanctors of the South Devon Railway Company, 
ttOBi applying the fbnds of the ooinpaay in payiDaeat 
of the expenses, &c of carrving'a Bill through Par- 
liament, which was intended, as alleged, to aflect tbe 
relative rights of different dasaes of sharehoUen to 
&B injury of one class and the corresponding benefit 
of anotlier; and fi^Mn using the name or seal of the 
company in solidting such Act. The foots and ar(a- 
ments are fully set out in the judrment 
TVimer, Steveni, and Caimt, for tbe motion. 
S. Palmer and C. JIaU, contii. 
The following caaeswere died ■.—Qmtl v. Harrii, 
Turn. & R. 496; 7^ Altomey-Oeneral v. An- 
drewi, 14 Jur. 124, 905; J^ Attomeg-Oeneral v. 
3^ Guardiant qfthe Poor of Southampton, 17 Sim. 
6; The Attomey-Generat t. The Corporation qf 

Norwich, 16 Sim. 2» t Mmnt* v. Tha Shrtmebmt 
and Chitttr RaUway Compmuf, 15 Jar. 26; Wa^ 
V. Society ^ Attomeyt. 1 ColL 370: BtathaU 
V. Tht Iforlh Stqfordihire Baihmmw Compmrn. 
2 Man. ft G. 100. 

Tbe MxaraK or tbb Roixa. — Thia waa a ■*. 
tion made on behalf of tbe plaintiff for an {qjaadka 
to realiain the defiaodanta from tsaiiiK oranMi 
the lands, moneys, and credit of the Sooth Dana 
RaOway Company in, for, or towarda the |ia|— il 
of the coats, chuiea, and expenses of or jriiki^il 
or preparatory to the introduciiaa into and srosiea. 
tion in Psriiainent of two Billa, mentioMd k At 
plaintiira bill of complaint, or either of them (nay 
other Billa for the like porpoee, and ataofromiato. 
dadag or aoUdting tiie said two Bills, or ayste 
BUI for the like panose, or using tbe nam* or sat 
of the company fir the iatrodadag or aolidliar aoek 
Bills or dttier of them. The Sooth Deisa laieay 
Company waa faieorporated by an A«t of Miasa^ 
to which the royal assent waa given on fhsM gf 
Jnly, 1844, and by which tt waa providal&ittk* 
som of 1,100,000/. shoold be die cnpital of Otaia. 
pany, and that tbe same should b« divided ialB UN 
sharea, each of the amount of 50/. and OstsiWT 
person subscribing 50/. to tlie capital was to w 
deemed a shareholder of the company, and la ksN 
one share therein allotted to him, and aftor thsokls 
snm of 1,100,000/. should have been aubscribed fa, 
and one-half thereof had been actually pod i^ As 
'bompany were empowered to borrow on mai1|pfi« 
bond soeh sums of money as shonld from tms to 
time be authorised to be bomnred by ordsroflit 
general meeting, not exceeding in the wlKiie tkisn 
of 366,500/. Byareaotation of the company, cokmt 
hito fai August 1844, it waa resolved that ths disc 
tors shonld take m easu re s to rednce the si s i n i < tf 
the capital of 1,100.000/. to l.OOO.OOOt ; sad. eoa- 
seqnently, 2,000 of the sharea which wen astks- 
liaed to be issued were not isaaed. Byasirtsf 
Parliament, which received tbe royal assmtsatt* 
28lh of August. 1846, ths company were srikoal 
to raise, by the creation of new sharea or tek, t 
fiirtbersam, not exceeding 500,000/. with i fwd» 
that the newabacea ao tobe created ihoaldbsel 
sodmoaunal amooBt, and entilled to sack fiivaaM 
as tbe company alight detetmiae. At aa sna- 
ordiunr meeting of the sharefaolden^ held oa Ika 
9tb of January, 1847, the directors wen satkriM 
to nise aa ad£tioaal capital of 509,(MK ■ ack 
manner as they might deem expedfrat, f^J^ <^ 
intereat of the company; and oa the ZH> cf 
January, 1847, in porsuance of tkst satkorih', IM 
director* naolved, tbat tbe susi of JOOiWKK. Ml 
be raised by tbe creation of baV-ihsR* of lU. aidi; 
oa tiie ISth of March. 1847, ^"t 6 pa eent mi 
aaaom diould be guaranteed ontil the lath olluim, 
1847, on an calls paid.andanansBmir«een«ilB 
aatidpalion of calls, by authority of Ike hoad of 
dhectoi*, hi re*pect of laeh half-ahans, aadaatM 
goaraatee ahoold not exdode the •hanhaUsnMi 
partidpalhig in any higher rate of dividaadfern* 
time bahig, payable on the whole sharei. ,I> (■* 
aaaace and on the terms of this resolatkn, ns 
director*, on the 15th of March, 1847, ismedfl^ 
half.shareaofSB/.eacb. Uader theee drcaMtiaeai, 
than are two dassea of shareholders, naaeir, a* 
holdera of the originsl or 50/. shsres, sad A* 
hoUers of the 25/. or half-aharea. The fhistC 
belongs to the first dms; he is die bote ». 
or intereatad in, a great many original 
and has paid aboot 70,000/. for calls It 
he is BOt toe holder of aay 25/. or half^ 
It is said that the company have bonowedsl tt* 
moaey they are entitled to raise on mortgHi • 
bond, and that the raUway baa been oom^stuai 
opoied fbr traffic bam Exeter to Plyaaoadi, a <*■ 
taaoe of fifty-aevea milea, and is yieldiaf ae«B> 
derabla yearly revanaa, but that no dividead M 
yet been dedated on either dw whole or the W 
afaarea. In this state of thing* d iff eraaes s »w* 
ariaan between the shareholder* of die two dM*> 
as to the true meaniag and effect of the leMhtioiei 
dm 19di of Jaaaary, 1847. The plaintiff, who iio- 
teresled only in the whole diarea, aliens ttat n* 
directors are largely interested in the n a if ** W» 
and although tbe holders of the balf-diaree siaW- 
titled to soeh and only soeh nivileae* as win t"^ 
to them by die reaohitioo or the 19th of Janmiy. 
1847 : yet dM director*, in die year 1850, faitrodacHU 
or caused to be introdnced, into FarUiuBeataBu 
purporting to empower the oompeny to ""^^^ 
shaiea to aa amount not exceeding 6^,000/., to beir 
intereat hi perpetuity at any rate not a«»eiEBgn 
per cent per annum ; and the plaintiff uprehsad. 
Sag diat dw efliict of sudi Bill, if passed into a b^ 
win be to alter the existing and established rirtii « 
the holder* of die original shares, and the boldos 01 

the half-sharea in the company as between tbi^ 
sdves, and to vary the terms upon which th ebaic 
shares have been created, applied to be heard bsism 
the Committee of the Houseof Commons, to wajm 
the Bill was referred, and tbe rommitte* reporttd 
that tbe |H«amble of the Bill was not proved, so* 
the BiUwsa for that time ab andoMd. Thedtoec*M 

Digitized by 


Araii,.26. 1851," 






however, continaed to attend to the subject, and 
with s Tiew to the difficulties arising ont of the 
opposing' daiiris of the two classes of shareholderB, a 
special meeting of the shareholders was held on the 
24th of September last, and it was then resolred 
that it appeued for the interest of the company that 
lome eqnitaMe arrangement shonld be made with 
the holders of the hslf-shares with a view to admit 
both dasses of shardiolden toan immediate participa- 
tion in the revenues of flie eompanr, and the directors 
were requested to put themselTes in communication 
with some of the leading shareholders of both classes 
with a view to devise some scheme for the purpose, 
and that scheme was to be submitted to a meeting 
of shareholders, to be afterwards convened to con- 
sider it' The directors, having consnlted Mr. A. 
and received a report from hm>, issued a notice, 
wberebjr they convened an extraordinary meeting of 
the shareholders of the company, to be held on the 
I2th of November last, to receive and consider a 
special report of tiie directors relative to the pro- 
posed commutation of the privileges attached to the 
25/. or half-shares of the company referred to the 
conmdetation of the board by a resolution of the 
special meeting of the 24th of September, and also 
relative to the other matters in the same notice 
stated. At this meeting the directors made their 
own report, stating and recommending a scheme for 
the propcned commutation of the privileges attached 
to tne 25/. or half-shares in the company. The re- 
port of the directors was adopted, and the directors 
were authorised to take all necessary and proper 
measures for the purpose of giving effect to tne re- 
commendation tiierein contained, and particularly to 
sppl]r to Parliament for all such additional powers 
u might be requisite for that purpose ; and accord- 
ingly the directors have taken, and are taking, the 
aeceasary steps for that purpose. I do not tmnk it 
necessary to discuss the merits of the proposed 
icbeme for the pikrpose of considering whether in 
.tself, and independently of the pecuBar circnm- 
itances which may on the whole recommend it to 
he adoption of the company, it is calculated to pro- 
note either its general interest, or the peculiar 
nterest of either of the two classes of shareholders 
nto which it is divided. The plaintiff alleges that it 
s calculated to give a benefit to the holders of the 
uJf-sbares, at the expense and to the loss of die 
lolders of the whole shares. It may be so, and it 
nay at the game time be possible that even such 
» amngement and such a commutation of the 
nivileges attached to the 25/. or half-shares 
hough at first it would be productive of some loss 
a the shareholders of the whole shares, may ulti- 
mately be so beneficial to the general concerns of 
the company as in the end to be profitable to the 
hidden of tne whole shares themselves. Into this 
I do not enter ; for it seems to me to be clear that 
the scheme, if authorised and carried into effect, 
will very materially alter the existing rights ai^ 
interests of the two classes of sharehohlers who are 
interested in it. It is, I think, admitted that the 
rompany itself has no legal power to do this. Ftr- 
lioment alone has power to authorise it ; but I can- 
not say the nature of the case is such as to make an 
application to Parliament by the company for the 
purpose of authorising the scheme a bread of trust 
or of dutr to the company. To hold otherwise 
would, I think, be applying strictly to a company of 
this land the principles admitted to be applicable to 
a private partnership— private partnerships resting 
on private contracts, unconnected with public duliea 
tod interesto, and capable of dissolution. It was, 
maeed, stlted that if the application to Parliament 
were made by or in the name of the company, the 
pkintiff and other members of the company, allqpng 
that they had an advene interest, would not be 
allowed to appear in opposition to the Bill. I own 
I have great difficulty in supposing that such is the 
course of proceeding in parliamentary committees; 
bQtitissaid that some instances have occurred in 
which this has been done, and it is therefore safisfac- 
ton to sae that there is in this Court such a precedent 
»s is found in the case of Partfr v. Tk« Dmm Na- 
mgation Company; and in this case the defendanto 
have offered to give the undertaking that was given 
ov the defendants in that case; and upon tiieur 
giving that undertaking, I am of opinion that I 
ought not to restrain the defendants from using the 
name or seal of the company for the mtrodudng or 
prosecuting the BiU. It is plain that using the 
name or seal of the company may subject the 
company to some lUbilityj and if die Bill should 
not pass, or if it should pass without a clause 
authorising the payment of the costs out of the 
™>ds of the coimHuiy, or other funds, it may be a 
VMtion hereafter how those costs ought to be paid,— 
that seems to me to be a question which the com- 
ply lu their authorised proceedings may be left to 
2«u with when it arises,— and in respiect of such 
^■tore ^ilities, I think I ought not now to inter- 
itte. But u to the present funds of the company, 
»e case seems to be different. Those funds consist 

« moDoys paid or subscribed for the general pur- ^ , ., , 

POMi of the company, for the purposes in wluch all ' between her son Bichard Hall and her daughter 

the shareholders of the company are interested, 
according to ttie contracts now subsisting between 
them : it is beyond the power of the company itself 
to alter and modiAr these contracts, and I think it is 
reasonable, and witbin the jurisdiction of this Court, 
until legal authority is obtained, to restrain the de- 
fendants from applymg the fiinds or money of the 
company now in tlieir hands in or towards the pay- 
ment of the costs of so much of the BiU as proposes 
to effisct the scheme for the commutation of the 
privilqfes attached to the 25/. or half-shares. 

Some discussion then took place as to the form of 
the order. 

Palmer then gave the undertaking alluded to in 
the judgment, and the injunction was granted till 
further order, in the limited terms therein also 
mentioned. _____ 

Txea-oxAvoasxAS mmxumt 


BepcMed by Oio. B. ALurvn, Esq. of the ICddle Temple, 

^pri/ 16 ami 17. 
B» parte Cwoawoho, reTHcNoiiTH or Enoland 

Joint-Stock Banking Comfant. 
JoM-Sloek Comptadet Whtding-up Acte-Jrtrit- 
diction of the Matter— Conlritutory—Bxeculor. 
A. and B. were the eseeutort of C. D. the pro- 
prietor nf thirty thara in ajoint-etoet banking 
company. C. D. died in 1938, and probate iff her 
mil wot entered in 1840 <it the eompany'i hooke. 
In the dividend-litt* qfliiS and 1846, A.'e name 
appeared at executor, but tie warrante were 
made out in fatour of A. limply. Notice* were 
o/m addreeied to A. alone, though in A.'i letter! 
to the manager qf the company he occaeionally 
referred to hit being executor. In 1845, A. alone, 
at executor, tranif erred fifteen of the iharei to a 
purchater. The company being ordered to be 
wotmd up, the Hatter placed A?t name alone on 
the litt of contributoriet, and excluded that of 
B. but tubteguently he renewed hit deciiion and 
placed B.'i name on the litt at pertonal revre- 
tentative <tf C. D. On an appeal by B. from 
thii deciiion, the Court 
Held, that the Matter had juriidietion, under the 
nth Hction of the Act q/" 1849, Ihui to review 
JU* deciiion: andfitrther, that B.'t name wai 
properly placed on the litt i^ contributoriet. 
This was a motion on behau of Mr. James Cres- 
field, that so much of the certificate or order of the 
Master chaived with the winding up the North of 
Enghmd Jomt-Stock Banking Company, dated the 
12to day of Mardi, 1851, as included the said James 
Ciosfleld in the sud Master's settlement of the list 
of contribntories as a contributory for fifteen shares 
in the character of one of the personal represente- 
tives of Ann Hall, deceased, mi^fht be discharged 
or reversed, and that his name might be struck out 
of the said list, and that the official managers might 
be ordered to pay him the costs incurred by him in 
defending the proceedings of the official managers 
in this matter, and of the present application. The 
certificate of die Master was in snbstence as follows: 
I, James Wm. Paner, hereby certify, at the re- 
quest of James Croefield, that the official managers 
made ont, on the 22nd of November, 1848, a list of 
contribntories, wherein was included the names of 
the nid James Crosfield and of Richard Hall as 
contribntories of fifteen shares of 100/. each, in the 
character of executors of Ann Hall, deceased, and 
ontbe22ndof Decemberfollowing I settled thesaid list, 
and after reading (among other documents) four divi- 
dend warrants payable to the order of the said Richard 
Hall, and hearing his admission that he had received 
dividends on the shares, and reading the letters of 
the said Richard Hall after mentioned, I included 
his name in die setUed list of _ contribntories, as a 
contributory personally responsible for the said fif- 
teen shares, and struck out the name of the said 
James Crosfield. T was, on the 28th of May, 1850, 
applied to by the solicitors for the official managers 
to reconsider and review my setdement of the list, 
and to alter the same, by placing the names of the 
said Richwd Hall and James Crosfield thereon for 
the fifteen shares, in the character of personal repre- 
sentetives of Ann Hall, deceased. On the 26th of 
February last, I included the name of James Cros- 
field a* a oontribntrary in respect of the fifteen 
shares as one of sudi personal representetives; and 
on the 7th of March I reviewed the setdement of 
the list as to the said Richard Hall, and included 
his name as a contributory in respect of the said 
fifteen shares as one of such personal representa- 
tives. — J. W. Parrer. The facts were, that by deed 
of transfer, dated die lOdi of March, 1835, tbirtv 
shares were transfmred to Ann Hall, widow, with 
the consent of the managing director of the bank, 
and the same was duly completed and regirtered. 
Mrs. Han, by her will dated die 19th of November, 
1829, bequeraied the residue of her personal estate 
(which included the thirty shares) unto and equally 

Rebecca Hall, and appointed her said son and James 
Crosfield (the appeUant) her executors. She died 
on the 30th of December, 1838, and her will was 
proved by both executors on the I3th of April, 1839. 
From the share-ledgers of the company it appeared 
that " Probate of Ann Hall's wiU was exhibited 9th 
of March, 1840," and the names of Richard Hal], 
her son, and James Crosfield entered as exe- 
cutors. In the diridend lists of 1845 and 1846 
the name of Richard Hall appeared as Ann 
Hall's executor. The dividend warrants of 
March and September 1845 and 1846, were made 
out in favour of "Mr. Richard Hall" only, and 
signed by the managing director, or die manager of 
the company, "for the directors and company." 
Notices of matters of business, dated 1842, 1843. 

1844, 1845, and 1846, were sent bjr the manager to 
Mr. Hall, and addressed to him without any refer- 
ence to his being an execntor, and in some of them 
speaking of his dividends on thirty shares. On the 
7th of March, 1845, Mr. Hall wrote to the manager, 
" I will thank you to remit the dividend on die 
thirty sbwes in the name of Ann Hall." . . "Are 
there any other dividends due to the estate of Ann 
Hall?" On the 23ni of September following: "Yon 
would oblige me by forwarding the interest on the 
thirty shares of the late Ann Hall, which is in the 
name of Richard Hall, executor." On the 29th of 
September, 1846 : " I believe there was a dividend 
due from the North of England Bank on the 15th of 
this month ; will you please to remit me mine ?" 

Mr. Crosfield affirmed that he had had nothing 
whatever to do with the shares, and that it was Mr. 
Hall and not he who exhibited the probate at the 
office of the company. On the I5th of October, 

1845, Mr. Hall transferred fifteen of the thirty 
shares to a purohaser, and the transfer was duly 
entered in the books, and consented to by the 
directors, but the notice of their transfer when en- 
tered was given to the bank by Mr. Hall, as " exe- 
cutor of the said Ann Hall." 

Ruttell and Randall, in support of the motion, 
contended that the Master had no jurisdiction to 
renew his setdement of the list, but that by the 
terms of the Winding-up Act, 1848, he was con- 
cluded from so doing. They dted Beift case, 
before lioid Cranworth. (See 16 Law T. 3400 

Bacon and J. V. Prior argued that by the Wind- 
ing-up Act of 1849 the Master had authority to re- 
view such a matter, and that Lord Cranworth had 
not decided the case refemd to on any ground now 
insisted on. 

The Vicx-Chancbllo> said that the ground of 
the decision did not appear in the report, but Lord 
Cranworth, in a note his Honour had received from 
him, said that he decided the Master to have no 
jurisdiction, because the matter had come before his 
Honour. "Iliepresentease, his Honour was of opinion, 
was within the 17th section of the Winding-up Amend- 
ment Act, 1849, which empowered the Master to re- 
consider and review any order or proceeding which 
might have been made by, or might have taken 
place before, him under the Act, upon such terms 
and in such manner as he might think fit. He could 
conceive the possibility of a case in which the Master 
should so exercise his discretion under that section 
as that it might be fit to bring the matter under the 
attention of the Court, and the Court might dissent 
from what had been done, and direct that the matter 
should remain as it was. 

Suitell, on the main question, insisted that the 
whole proceeding on the part both of Mr. Hall and 
of the company shewed that Hall was treated as the 
absolute owner of the shares, and not as the executor 
of Ann HaU. 

Thurtday, April 17. — Randall, on the same side, 
referred to several of the clauses of the deed of set- 
tlement, to prove that the course of proceeding was 
such as to shew that the bank considered they were 
dealing with an absolute owner of shares, although 
the terms "executor" and "as executor" mi^ 
occasionally appear. 

Bacon was not called on to reply. 

The Vicb-Cbanceixok. — How this case would 
have stood if Mr. Hall had not been an executor of 
the wiU of this lady it is not necessary for me to say. 
He was an executor, and joined with Mr. Crosfiud 
in proring the vrill of Mn. Ann Hall, and, therefore^ 
it appears to me that there is no case to shew that 
he was owner, or that his membenhip of the com- 
pany was in any character than that of execntor of 
the will in question. No act which took place, no 
drcnmstance that occurred between Mr. Hall and 
the company appears on the evidence to have 
taken place, or to have occurred in any other 
character, or to be attributable to any other cha- 
racter than that of execntor. If any of the deal- 
ings between die company and Mr. Hall had 
been shewn to be inconsistent with the proper 
dealings between them and an acting exe- 
cutor of a will, the case might have been diSisrent ; 
but such dealings were consistent with such cha- 
racter. If it was correct in the Master to review 
the decision be originally came to respecting the 
settlement of the list of contribotoaries, and I think 

Digitized by 




VoL 17.— No. 421. 




it was, I am of opinion that the Matter came to a ' itate that the late Mr. Meux held twenty shares in pan^ hnt two, one of whom was out of the jmis- 

correct conclusion on such review, by placing the the Royal Bank of Australia, of 50/. eaich, and on 
name of Mr. Crosfield on it in his character of which 10/. per share has been paid, 
execntor. No circamstances appear to have arben . " I am. Sir, yoor most obedient serrant, 

before tli<? blaster to satisfy my miikl that such ulti- " Gbo. H. Wrat. 

mate conclusion at which he arrived was not a cor- " To Alfred Tomer, esq. 32. Eed Lion-sqaare." 
rect one, nor to satisfy my mind that the coune be ' On the 27tii of July, 1843, Mr. Tomer addressed 
took in proceeding to review his former decision ; the following letter to Mr. Wiay : — 
was otQcrwise. I wish to know whether the counsel " 32, Red Lion-sqiiare, 27th July, 1843. 

for Mr. Crosfield considers he has a case to shew I " Sir,— I shall feel obliged by your informing me 
that any circumstances took place which can alter j if there is any and what interest dne and receivable 
y'r. Crosfiald's position ia conseqoence of the i on the shares of the late Mr. Thos. Meoz in the 
^raster's decision ? Whether any sucb circumstances Royal Bank of Australia to the executors, of whom 

have arisen as render it inequitable that the Master 
should have reviewed his decision as be has done ? 
{RiumII said be had no information sufficiently ex- 
plicit on the point.] The motion most be 

Baron applied for costs, but the Court refused to 
give them, and directed those of the official mana- 
gers to be paid out of the estate. 

T%undtt/, April 17. 

Rp parte Mevx's Exbcdtoos reTni Botal 

Bank or Australia. 

Joint Stock Compcmtet Windinf'Up Act* — Conitj- 

A. It., a dircelor of a boating company, and the 
holder qf twenty shares, in ptarsuanee of a reso- 
lution of the directors, in ISIO, siipieaa letter, 
agremug to take 500 shares in addition to those 
he then held, and, in 1841, he gore a promissory 
note for 5.000/., payable fire years after date, in 
respect qf these shares. Vpon A. B.'s death his 
executors, in 1842, applied to the directors to 
ascertain the number of shares held by A. B., to 
u/iieh application it teas replied that he held 
twenty shares. 7%e executors afterwards sold 
the tttenJy shares. I* 1843 the directors resahed 
to cancel the 50O " credit sharesheld by A. B.," 
and the promissory note, it appeared, teas also 
cancelled. In 1B50, an order to toind up the 
company was made. The Master placed A, B.'s 
executors on the list of contributories in reject 
of iOO share*. On appeal the Master's decision 
teas reversed. 

This was a motion on behalf of the Rev. Thnmas 
Maude and Alfred Turner, executors of Thomas 
Meux deceased, that the decision of Master Richards, 
who v7as charged with the winding-up of the above- 
named bank or company, whereby the names of the 
said Thomas Maude and Alfred Turner, eienutors 
of the said Thomas Meux, had been included in 
Class 5 of the list of contributories, in respect of 
500 shar^ might be reversed, and that the names of 
the said lliomag Maude and Alfred Turner might 
be struck out of the said list of contributories of 
the said bank or company. Mr. Thomas Meux was 
one of the directors of the company, and the holder 
of twenty shores, and be hod signed the letter, dated 
the 7th of August, 1840, and set out in Robinson's 
case (ante, p. 14,) in respect of 500 shares. Pur- 
suant to a resolution of the directors, pa'^sed on the 
29th of September, 1841, Mr. Meux gave the fol- 
lowing promissory note, as a provision for payment 
of the calls on the 500 shares taken by him on cre- 

" London, 2nd Oct. 1841. 
" Five years after date I promise to pay to the 
tmstees of the Royal Bank of Australia the sum of 
live thoDSand pounds, with interest at the rate of 5/. 
per cent, per annum, value received. 

"Thomas Meci." 
In the general led^r of the company the follow- 
ing entry under Mr. Mcox's name appeared : — 
" Db. 
" 1841. Doc. To subscribed stock .... £5,000 
" 1842. Dec. To bills receivable 5,000 

I am one. 

"I am. Sir, jova most obedient servant, 
" Alfred Turner. 
"To G. H. Wray, esq. 
" Royal Bank of Aostr^ia, 2, Moorgate-street." 

It did not appear whetiier any reply to this letter 
was sent. Mr. Turner, in an affidavit, stated that 
he "never, upon any occasion, received the least 
information ftora Mr. Wray or the directon of the 
said bank as to 500 shares said to have been held by 
the late Mr. Meox." 

The following entry a p pea re d ia the books of the 
company : — 

" At a meetinc of the Royal Bank of Australia, 
held on Wednesday, 29th June, 1843 : 

" Present Messrs. Sntherland, M. Boyd, ConneH, 

" The subject of the credit shares, held by the late 
Mr. Meux, was brongbt under the attention of the 
conrt, and after (nil consideration it was resolved 
that they be cancelled. 

(Sitmed) "J. W. Sctherland." 

The name of Mr. Meux on the promissory note 
was cancelled. The twenty shares were duly tranS' 
ferred by Mr. Menx's executors. The company 
having boen ordered tn be wound np, the Master 
placed Mr. Menx's executors on the listof contribn- 
torics in respect of 500 shares. 

Baeon and Bush, in support of the motion, cited 
Cocibum's case, 15 Jur. 28, and Robinson's case, 
ante. p. 14. 

Malinx and Daniel, for the official manager. 

The Vice-Chaxcellor said, — How this case 
would have stood if Mr. Jleux had continued to live, 
and had himself dealt, and had been dealt with, as 
his executors dealt, and were dealt with, it was 
unnecessary to say : his Honour's opinion being 
that the executors did not, in every sense and for 
every p\irpose, stand in the same position as Mr. 
Meux, the personal knowledge possessed by whom 
they had no(. Again, be thought it unnecessary to 
say whether, in the dealings between the executors 

diction, and the other insolvent, baTing compro. 
mised, with the consent of the Master, the oil 
of 4/. per share, which had been made on the IM 
of July. The Master having been applied to to 
sanction the payment by the official manager of the 
liabilities of the company, had directed that this ap- 
I^ication should be made before the fiinds wot 
parted with. The official manager was willing that 
the costs of all partiea appearing on this uotua 
should be paid out of the estate. 

FoUett, for the contributories who obtuned tkt 
order of the 30th of November, consented. 

The Vick-Chamcellor said that, as Sir Geor^ 
Rose, the Master, considered the arrangemrait to be 
proper, he would discharge the order as asked. 

Beported by If. B. BmsT, Esq. of IJno<da'»Jn, 

Titmday, April 15. 
KicBARDSON and Akothbr c. 
Copyright— i it 6 Viel. c. 45. 
Semble, f%af the composition of an artiek i» a 
periodical publication must be aetueUty paii fir 
by the proprietor of such publication, brfert te 
can obtain a legal title to the exdiitite etfyrigU 
of tuck article. 
Where it tRiiinetty appeared by the erUenee tilt 
the plainti/ft had been supplied ttith the trticks 
to a periodical ptiilication, on the terms tU 
they should be paid for, such articles will k 
protected by injunction from being puUishsd h 
any other periodical work. 
This was a motion to dissolve an injonction «Ud 
had been obtained ex parte, restraining the de- 
fendant (a bookseller in London) from printing, or 
publishing, or selling, or parting with any copies or 
copy of a publication containing a copy il an sitids 
in the Dublin Reriew, of the January number of 
the present year ; or any copy of the said ortids, or 
any work or composition containing, or purpordag 
to contain, any copy of the same, and fiiim other- 
wise infringing the plaintifTs copyright The piam- 
tiffs alleged by their bill that theV were booksdfal, 
printers, and publishers, in, ia Derby, aad 
in Dublin, and that they were the proprietor* pab- 
lishers, and printers of the Dailn Reriew, a 
periodical work, published in qoarferij- nomboK 
consisting of original nomjKJsitioiis or artirks. Thlt 
a certain article, beinj the tenth srticle in the tfty- 

eighth number of the said publication, haiieen 

„^ , ... ^_ posed for and for the use of the pl^ifi, by fee- 

and the directors, the latter exceeded the powers] sons employed by plaintiffs to compost Ike same,im 
confided to them by the company or shareholders at the terms that the copyright or property tkerm 



"1841. Dec. By bills receivable £5,000 

" 1842. Dec. By subscribed stock .... 5,000 

After Mr. Meux's death, Mr. Tomer, his exe- 
coter, wrote the following letter: — 
" To tiie Directors of the Royal Bank of Australia, 
2, Moorgate-street, Lothbury. 
" 32, Red Lion-square, 24th l\-b. 1842. 
" Gentlemen, — I shall be obliged by your infurm- 
in( mo, as executor of the kite Thomas Meux, esq. 
of Bloomsbury-sqoarc, what shares that gentleman 
held in your company, aod whether there is anvlhing 
due to or fi-om him in respect of them, as I wish, 
before proving the will, to ascertain the amount of 
Mr. Meux's property. 

" I am, gentlemen, yonrs, fee 

" Alfred Turner." 
To this letter the following answer was received: — 
" Royal Bank of Australia, 2, Moorgate-street. 
" Loudon, 2ud March, 1842. 
" Sir,— Yoor letter of the 24tb ultimo, addressed 
to the directors, came before tliem this day at the 
meeting of the board, and ia reply I am desired to 

large, because there were some cases in which, al 
though an agent did exceed his authority, he bound 
hii principal : there were, of course, many cases in 
which, exceeding his authority, be did not. The 
present, however, not being one of thow cases, he 
thought, that if in what the directors did they ex- 
reeded their authority, the cnrapany were neverthe- 
less bound. The facts were these : the executors of 
Mr. Meux, vrithout any per<:onal knowledge of the 
nature or extent of his connection with the bank, 
applied to the directors, or to the person who was 
conducting their aflairs, or representing them, to 
know what was the extent and what was the natnrc 
of that connection, and their answer, in sobstancc 
and effert, nIlhou?h not in terms, was, that the ex- 
tent of that connection was, that Mr. Meux was the 
holder of twenty shares. This took place in 1842 ; 
the executors acted upon that information ; they sold 
the shares, and considered, as they had a right to 
consider, their connection with the company as de- 
termined. More than seven years passed away, 

should belong exclutir'ely to the ptaaUiffi, a»d 
should be paid for by them. That such srtjde sad 
number liad been duly registered by them. Tkst 
under the 3 & 6 Vict. c. 45, " .In .\ct to tm«id the 
Law of Copyright," they were now entitled to^j* 
exclusive property and cnpyright in such tentt 
article. This article was entitled " The llieiardiy. 
The Bill subsequently alleged that the detoi^ 
had, earty in the present year, published » printrf 
pamphlet, called "The Roman Cathohc Qoerfoo, 
containing, amongst other things, a verbatiiii copyrf 
the tenth article in the Dublin Review, with ^ae 
trifling variations. This copy in the defcndarft 
'publication was headed "'The Hierarchr," ftom 
the D«*/in Reriew for Jannary 1851," which pw- 
licatinn was composed of a series of papers, !«»• 
lished at the price of Id. for general drculsBW- 
The plaintiffs denied having ever, directly ornj- 
rectly, authorised or sanctioned the defenda^ 
publication. The bill then charged that the *- 
fendant had thereby realised large profits, and ffl- 

during the whole of wliicli that mistake, if there was jnred the sale of the fifty-eighth number oftt« 
one, or misrepresentation, if there was any, was not | Dublin Reriew. An injunction, in the terms o^ 
corrected. Everything went on on each side, on the j stoled had been ^ntcd on the filing of »• "^ 
footing of the accuracy of the representations made w^ on the affidamt of the clerk or manager OC tjo 
to the executors in 1842. In 1850, more than seven plaintiffs, verifpng these facts, 
years afterwards, a petition was pn>sentcd for the ; To this bill the answer of the defendant h«a«" 
purpose of winding up the affairs of the company, filed ; and by it he challenged the right of thepW- 
and an order was made upon it. Then it was said by tifib to the exclusive copyright of tl»e Dublin H^Jfc 
the official manager, on behalf of the shareholders, ' or to the article copied from it into the d"«?~**T 
that this representation, thus made by their agent, ' publication, alleging his belief that the »»**°JS 
was to go for nothing, and that the executors were oeen written by, and vras the property of, C*"!^ 
to stand exactly in the same position as thev would Wiseman, and that tie Dni/jii Review »» t"" 
have stood if they had been told that the whole 500 property of the said Cardinal Wiseman aud the «»?»• 
shares had been allotted. He thought fliat was , riors of .Maynooth College. The <lefends«trtD 
against equity, if not against the law, and be could ' alleged his belief that the composition of 5*i j^ 
not place the names of those executors upon the list j had not been paid for by the proprietors of theJg^ 

" "" "" ....1 j^ffp^ an J that the nonpayment was to be g«oni« 

from the omission of the statement of any sach pjf- 
ment intheplaratTfTs bill. He also allraed that tw 
fifty-eighth number of the Review had been •*'J~ 
him anonymously, which he supposed was done JT 
the editor of the Review, with the- <''V«*?.JJl 
understood it, that the article should be copieo Ijwj 
the defendant's publication, which publicatioo M* 
been in a previous numbn- of the Reriew n"^ 
pndsed. One of the expressions of praise «■ " 
these terms: "But wo must first call atteatkm w 

of contributories. He dissented from the Master's 

Thuradmy, April U. 
Re Tbb Godolphik Mining Coup.\nt. 

Joint -Slock Companies Winding-up Acts. 
Tfistop Clarke, on behalf of the official manager 
of the above-mentioned company, moved that the 
order made by tlje Vicc-Chancellor on the 30th 
of November last (see 16 Law T. 209) might 
be discharged, all the centributoiies of the eom- 

Digitized by 


Apbm. 26, 1861.] 






70 most useful compibtions. The first is Gilbert's 
lies of pamphlets on the Catholic csnse, purged, as 
has beeo, of some objectiouable matter that had 
3pt in. It em bodiet many documenit which laould 
rr« lo be ottmenvue sought with great labour in 
wspaper files." There was, however, no proof of 
e number of the Review in which the copied 
dele was, havnng been sent to the defendant with 
e plaintiff's knowledge. _ 

An spplication was now made to dissolve the in- 
nction on the answer. 

The Solicitor- General (Wood) and Sensham, in 
tppoTt of the motion, contended that no legal title 
> the exclusive copyright in the article was shewn, 
bktby the 18th section (a) of the Copyright Act 
I & 6 Vict. c. 45) it was provided that any article in 
periodical publication must be actually paid tar 
-jftire the legal title would be vested. That the 
ime point had been adjudicated upon by the V'ice- 
hsncellor Shadwell, in Brown v. Cook, II Jur. 
' ; and, as in that case, the plaintiffs should be put 
I trv their legal right by an action at law. They 
so 8tBt«d, that the whole bets of the case had not 
sen mentioned to the Court when the ex parte in- 
motion was applied for and obtained ; and that the 
ith of the author or proprietor of the Review as to 
^nership should hare been made, instead of that of 
derk or manager. 

JoM. Parker and Bagiiaw, after referring to 
e nth section of the Copyright Act, contended 
at the defendant having confessed to the piracy 
tempted to justify the act by saying that the plain- 
is had not made tbemaehres proprietors of the 
rated article by paying for it. The injunction was 
ituned under great pressure of time, but the facts 
id dates were all then stated. It was said that a 
mtnct by a publisher with an antiior on certain 
rms did not entitle him to the copyright under the 
Ith section. In that view hardly a publisher would 
tve s copyright, for it hardly ever happened that 
e money for an article was actually paid before or 
the time it was supplied ; it was written under a 
neral understanding as to the terms, and the reta- 
in once being shewn to subsist between the aulfaor 
id poblither, the copyright jiassed nnder the I8th 
ction. It often happened, indeed, that the work 
IS paid for by part of the proceeds of the sale of 
; and the words "paid for " meant under the em- 
oyment of the proprietors. 
The Solicitor- General, in reply. 
(Spotlitwoode v. Clarke, 2 Phill. 154, was also 


The Yice-Chamcellor said that his opinion was 
lat the injunction ought not to be dissolved. The 
nly point was that it was said that the plaintiff's 
tie did not appear. That the defendant was a 
rong-doer was clear ; but the Court must be very 
lutions in allowing itself to act upon that. It was 
1 old saying that " hard cases made bad law ;" but 
Is lordship's opinion was, that the plaintiff's title 
id sufficiently appear upon the bill and affidavits, 
'pon referring to the Copyright Act, it certainly 
ppeared that the view of the Solicitor-General was 
right one, and that actual payment was a necessary 

condition, and it was not certain that that was not 
intended by the Act. Now, upon referring to the 
bill, it not only appeared that all articles were sup- 
plied upon the terms that they should be paid for; 
but it was stated distinctly that the article called 
"Hierarchy" was the exclusive property of the 
plaintiffs, and this was confirmed by the affidavit. 

The motion mtut, tkerrfore, be reftued, but 
without eottt. 

(a) The foDowlos is the section : " And be it enaoted, 
lat when any pubUaher or other person shall before or at 
le time of Uie paaaing of this Act have projected, con* 
Tucted, and carried on, or shall hereafter project, con- 
uct, and carry on, or be the proprietor of any encyclo- 
aedia, review, maearine, periodical work, or work pnb- 
ahed in a leriei of books or parts, or any book whatso- 
rer, and shsil hare employed or khall employ any persons 
> Gompoee the same, or any Tolomes, parts, essays, articles, 
r ponioQs thereof, for publication in or aspartof the 
une ; and such work, Toitunes, parte, essays, articles, or 
ortions shall hare been, or shall hereafter be composed 
nder each employment, on the terms that the copyright 
bereia shall belong to snch proprietor or projector, pub- 
sher or oondnotor, and paid for frjr tuck proprutor, pro- 
tctor, pnHUker, or eondttaor, tne copyrifrht in every such 
ncTclopndia, rcTiew, manahie, periodical work, and 
rorx published in a series of booka or parts ; and in CTery 
olaine, part, essay, article, and portion to compoted and 
«>^ X^, shall be the property of such proprietor, pro- 
Mtor, pnUiaber, or other eondnetor, who shall enj<rr the 
use rights aa if he were the actual sothor thereof, and shall 
lave such term of oopyright therein aa ia given to the 
mthors of books by this Act, except only that in the case 
if essays,^ articles, or portioDs forming part of, and first 
inblished in reviews, magazines, or other periodical works 
'f * like nature, after the term of twenty M^ight years from 
"^ fir^ pnbbeation thereof respectively, the right of 
■nblishing the same in a separate form shall revert to the 
uthor for the remainder of the term given by this Act, 
"Tovided ahravs, that daring the term of twenty-eight 
'ears the saia proprietor, projector, publisher, or oon- 
dnotor shall not publish any such essay, article, or portion 
sparalely or singly without the consent previously obtained 
f ue author thereof, or his aforeeaid ; prorided also that 
othing herein contained shall alter or affect the right of 
ay person who shall have been, or who shall be, employed 
s Ubreaaifl, in nuljlish any siloii liiM r-urnposill'ii in a 
operate form, who l)y any contract, CTpr.^''^ iir nnplied, 
i*y have reserved, or may hereafter reserve, to liimaclf 
noh right; but every author reservinj;, retaining, or 
AViag such right, shall be entitled to the ctipyright in 
noh composition when published in a separate form, 
«OTrdin^ to this Act, without prejudice to the right of 
J™ proprietor, projector, publisher, or conductor as 

irxcB-CBAjrcaxAom xmuram's 


Beported by J. Hanax Coox, Bsq. Barriat«i-at-Law. 

April 15 and 16. 
Re Nicholson. 
Truttee Aet—Praetiee—Affidavtt—Truelee^* 
Semble, that the affidavit or eert^ate, under the 
Trtutee Act (,1S50), for the appointment of a 
new tmtlee, on the ground of the wnwillingneu 
of the exitting truttee to act, ought not merely 
to etate generaUg the fad of nteh unwilUngneu, 
but to ditelose eireumetanea shewing whether 
lueh unwillingnett woe or woe not ^uttijiable. 
C. P. Phillipi moved, upon notice, under the 
38th section of the Trustee Act of 1850, to confirm 
the certificate of the Maater for the appointment of 
new trustees, the surviving trustee havmg died, and 
his personal representative having expressed his un- 
wiUingness to act in the execution of the trust. 
The Master, in his certificate, stated that he had 
been attended by the solicitor, who, by his affidavit, 
merely stated that the representative of the sur- 
viving trustee was " unwilhng to act." The parties 
had gone before the Master, without any previous 
application to the Court 

His Honour asked to be famished with the cer- 
tificate, and said he would mention on the following 
morning whether he was satisfied that the materials 
on which the motion was founded were quite 

Wedneedaf, April 16. — TbeVicE-CHANOKLLon, 
on coming into court, said that he had looked at the 
certificate, but he did not perceive in it any state- 
.ment shewing that the parlor was sought to bo re- 
moved for any other reason than th^ he had ex- 
pressed his "unwillingness to act." This admitted 
of explanation, shewing whether his unwillingness 
arose from being requested to perform some act 
which he was not bound to do. 

Glome said he appeared for the personal repre- 
sentatives of the surviving trustee, and was instructed 
to consent to the application. 

The Vice-Chancbllok then made the order as 

Oomnion Hato Courtt. 
oovBT OF QTraair's bbitoh. 

Reported by Adiu Bitti.sstov and Fj>ul Fiairsi,L, 
S^rs. Barristers-at-Law. 

Wedneidan, April IG. 
WiTTiNOTON dem. WtxriNOTox t>. Hards. 
Writ qfreetitulion after revertal qf irregular 
Judgment in ejeclment. 
The leuor (if the plaint\ff in ejectment obtained an 
irregular judgment, which woe aflerwardi eel 
aiide. By rule of Court, it war ordered that 
potienion ehould be restored to the ienantt, and 
that H. should be admitted to d^end as landlord. 
H. did enter into the ordinary content rule, but 
not at landlord, the premitet having in the mean- 
time been given up to him by the tenants. The rule 
could not be served upon the lessor of the plain- 
t{ff, who absconded, and an order wot then made 
by a learned judge for a writ of restitution. 
Upon application to rescind that order. 
Held, that a writ of restitution wat the proper and 
established remedy in such a case. 
A rule ntst had been obtained to rescind an order 
of Manle, J. directing that a writ of restitution 
should issue in this case. 

It appeared by the affidavits that in Juno last the 
lessor of the plaintiff obtained judgment as upon a 
vacant possession, but that judgment was erroneous, 
because the tenants of defendant Hards were then in 
possession. Accordingly the judgment was set aside 
by Patteson, J. in the Bail Court, and it was ordered 
tliat possession should be restored, and Hards ad- 
mitted to defend as landlord. He did enter into a 
consent role, but not as landlord, he having became 
himself the occupier in the meantime. The rule of 
Court was drawn op, but every effort to serve it upon 
the lessor of the plaintiff was incffrrtnnl; and it was 
sworn that he liod absconded. Application was 
then made to Maule, J. nt chambers, nho made the 
order above mentioned. 

April 15. — Maciiawara shewed cause against the 
rule. Tlie writ of restitution is the proper remedy 
in this case and bos been constantly resorted to. 
(Goodriyht v. Noriyht, Buincs, 178; Doe v. Shall, 

2 Dowl. tc L. 161 ; Doe dem. Pitcher v. Roe, 9 
Dowl. 971 ; Doe v. Williamt, 2 Ad. & EU. 381.) 
The dictum of Lord Holt, in R. v. Leaver, 2 Salk. 
587, is not at all conclusive cf this case; because, 
there the case put is that of mere strangers. This 
defendant is not a mere stranger. In Doe dem. 
Stevens v. Lord, 7 .A.d. & Ell. 610, 6 Dowl. 
256, the judgment had not been set aside, and 
therefore the writ conid not issue. But the rule is, 
that when the judgment has been set aside, the writ 
lies to restore the party wrongfully disposset!^. 
(Tidd's Forms, 690.) 

Gray, contrk. — The writ of restitution can issue 
only upon matter of record, as between the parties 
to the record, the ordinary instance being upon re- 
versal of a judgment by Court of Error. Several 
cases may certainly be found in which the writ has 
been issued in cases similar to the present, but they 
are all referable to the case in Barnes, where the 
matter was not at all discussed. [Lord Campbell, 
C.J. — But we should not be disposed to disturb a 
practice settled by a long course of precedents.] 
There are authorities the other way : — Lilly's Pr. 
Reg. tit. " Restitution and Re-restitution;" Anon. 
2 Solk. 588; and 72. v. Leaver, ib. 587. It is not 
merely necessary that the applicant for the writ 
sbonla be a party to the record, but the right to the 
writ must appear by record. [Eulk, J. — Even 
upon reversal of a judgment in error, it does not 
appear by the record that possession has been taken.] 
"Then there must be a id. fa. quare rettitutionem 
non. [Lord Campbell, CJ. — In reason, the party 
ought to be restored to what he has lost by an erro- 
neous judgment.^ But this is a writ of execution, 
and the ordinary incident attaches. [Erlk, J. — la 
Sellon's Practice, the rule is laid down that the writ 
is the proper remedy in a case like this.] In Doer. 
Williamt, it is said that the order of tlie Court ought 
to be upon the. party in possession, not upon the 
sheriff. In Doe v. Lord, also, no sanction is given 
to this practice. [Erle, J. — Lilly, in his Practical 
Rixister, upon wmch you rely, says that this writ is 
to be resorted to on extraordinary occasions, when 
the ordinary process will not do.] Attachment is 
the well-known remedy for disobeying an order of 
the Court. Cur, adv. vult. 


Lord Campbell, C.J.— In this case, which was 
argued yesterday, we took time to consider, and are 
now prepared to give our judgment. AVe think that 
the rule for rcsdndin^ the judge's order, directing a 
writ of restitution to issue, ought to be discharged. 
The established practice bas bucn that when a jodg- 
ment in ejectment has been irregularly obtained) 
and possession has been delivered under it to the 
lessor of the plaintiff, the Court wilt, in the first in- 
stance, grant a rule upon him for restoring the pas- 
session ; but if that rule becomes ineffectual from 
the party having absconded, a writ of restitution is 
awarded. In Doe dem. Williamt v. Williamt, the 
writ of restitution was set aside as irregular ; but 
there no previous rule had been made on the lessor 
of the plaintiff to restore possession, and the inter- 
ference of the sheriff under the writ of restitution 
might have been unnecessary. So in Doe dem. 
Stephent v. Lord, the Court said that there could 
not be a writ of restitution, after setting aside a writ 
of habere facias possessionem ; judgment having 
been obtained by the lessor of the plaintiff still re- 
\ mained in force, and tlio proper relief was declared 
to be by a mie on the party to restore possession. 
But in the present case the judgment in ejectment has 
been set aside, and the prior rule for restoring posses- 
sion has. been found inulfectual from the party having 
absconded. It was admitted by ^Ir. Gray ttiat the case 
in Barnes has been followed by a number of other 
cases, in which a writ of restitution has been granted 
undersimilar circumstances. Heveryleamedlyargned 
that all the.'!e decisions are different, and that tha 
practice which has sprung upought to be condemned, 
on the ^ound, that there can be no writ of restitu- 
tion except on matter of record. The most usual 
writ of restitution has certainly been on the reversal 
of a judgment, hy a Court of Error ; but he did not 
cite any authority to shew that a writ of restitution 
is necessarily confined to matter of record ; and on 
principle, there seems no reason, where possession 
has been obtained under a judgment, tliat the writ 
should not be directed to the sheriff, to restore pos- 
session if the judgment be set aside. The obje<»on 
made in this cose, that the defendant was not a party 
to the record, was answered by the affidavit tfa^ he 
bad appeared and entered into a consent rule, and 
the possession may be considered as taken tromhim, 
as it was taken from the tenant who held under him, 
and it may well be said to be restored. We are, 
therefore, of opinion that the order of the learned 
judge was authorised by the established practice, 
and this practice is not contrary to any principle of 
law, and enables the Court to redress a wrong which 
could not otherwise be redressed, without the delay 
and expense of an action of ejectment We aU 
think it ought not to be disturbed, and the rule will 
therefore be discharged for setting aside the judga'i 
order. Rule diichargea. 

Digitized by 




[Vd. 17. — ^No. 421, 




T/mniaf, April 17. 

Drvmmond v. Tillinobdrst. 

Beewrityfor ecitt — Ftrtigntr rttidtnt m Mi* 

A foreigner aetuallf reeident teithin IhU realm, 

e»d not *hew* to katt mty domcU abroad, frill 

not te r e gu i rtd to give tteurityfor eoitt, although 

it be tworm that he it omljf temporarily rerident. 

Greenmood nored for • rale to shew came why 

Ihe proceedmp shoald not be stayed until the plain- 

tUT gave lecuntY for costs. The plaintiff was a negro, 

•nd had been hired by the defendant at California to 

serve as cook on board his vessel on her voyage to 

Bndand. The affidavit fiirther stated that the 

plamtiff had declared that he was a native of Phila- 

ddphia; that he was only temponrily resident in 

this country ; and that the deponent believed that as 

eonveyance of the land to the company. These had 
been no payment or tender of the money, nor any 
tender M any conveyance by the company. The 
leuor of the plaintiff then gave notice to the com- 
pany to quit and deliver np possession of the land 
and brought this ejectment. At the trial, before 
Ciesswell, J. at die last assises for the county of 
York, it was contended that the defendants, having 
been let into pos s es si on by the consent of the lessor 
of the plaintiff, were mere tenants at will, and that 
the lessor of Ae plaintiff was entiUed to determine 
that will by notice, and bring this action. The 
learned judge, however, directed a verdict for the 
defendants, reserving to the plaintiff leave to move to 
enter the verdict for nimself. 

Knmolet now moved aocordingir, and contended 
as before at the trial. He argued, also, thati>o«<i«i 

JFfdBMciqr, Aftil tt. 

Doa itm. irsvKur v. Bnixuf. — Ontcder moved, pn- 
•nant tolemra nwrred, to eater a wnuDit. Tbe q a«« tx» 
was, whether a ooarejanee inder which the l e nor of tkt 
pUintJff eUimed wu void a* imwrn/k erediuxs. (Jtmm t. 
WUIaktT, Long. & Town. F. Sx. B«s. 141 ; S Saffka'i 
Vend. &F.9S^ £ici« to dknc enM. 

XoaLar v. lirTn.—WliaUlnxumai tat a new trial, oa 
the groond of misdirection. The qnestkm tamed spot 
the oonstmction to be pnt spon •oma oBnditiaaa of Mt. 
(ComU V. CatUU, 4 H. * W. 734) 

JW« tim, mint lit fartim earn ^fvwit* 

tBuillt HIM. 

Bows V. ICuraaa.— ir. Oamttrt moved forantwtnl, 
upon the ground that the verdiot was againaS Ot» endaan 
aad npon sffldsvita, XuU to •*«■ canr. 

KiToa e. Tb> 8wi>su Winawoaxa Co»iaT.— 
J. Svam moved for a new trial qioa the KTaand aim' 

soon as tbe money which he now had in his pos- Anattead v. T%e North Sti^ordthire Saiheay 
session was spent he would have no means of| OMnMny, Q. B. (not rejiorted) was distingoisbable, 
subsistence, and would be compelled to go to sea Uie landowner there 'being in fiiult, and having a 

^_:. //if^.. _ ^- » K D ff. A1J (wio . ...J i—£ At 1 ri.:.i i j ^i ^ i J 

anio. (0/tea v. Johnton, 5 B. & Aid. 908; and 
Naylor v, Joieph, 10 Moore, 522, are authorities in 
snpport of this application. [Lord C ahpbill, C.J. 
I alwajrs thought that the rnle was, that even though 
the plaintiff was a foreigner, the Court would not 
require security for costs, if at the time he was resi- 
dent in this country.] The rule is not so stated in 
Olioa V. Johnion. [Erlk, J.— That case seems to 
stand alone. In an Anonymout case, 8 Taunt. 737 ; 
3 Moore. 78, it was sud that security would not be 
rei^nxred, where tbe plaintiff was a foreigner usually 
resident abroad, but at that time staying in this 
country; and that case is cited and acted npon 
in DowNnf v. Harmait, 6 Mee. & W. 132. 
WiOHTMAK, J. — In Oliva v. Johnton, a foreign 
domicil was distinctly sbewn.l Sorely, that cannot 
be the test. A foreigner who apparently has no 
Jomicil anywhere, but is wandering over the world 
from one country to another, is a sort of person firom 
whom it would oe more reasonable to reouire secu- 
rity for costs, than a foreigner permanently resident 
•t some known place abroad, and occasioiudly 
visHinc this country. 

Loid Campbbll, C.J.— This application seeks to 
carry the rule further than any of the cases cited. 
The utmost that has been decided is, that a foreigner 
having s domidl abroad, may be called npon to give 
security, though at the time resident here ; bnt in 
tiiis case the plsintiff is a fordgner domidled here, 
so far as appears, or at least having no domicil else- 
where. TM presumption is, therefore, that he will 
mnain here ; and he ought not to be required to give 
•aeority for costs. 

Paitbsok, J.— Even if a fordgner be domiciled 
•broad, it lies on tbe defendant who asks for security 
for costs to shew that his residence in this country is 
of a merely temporary nature. 
WioBTMAK, J. concnired. 
Erle, J.— In many cases the application has been 
lefosed, if the pUntiff, though a foreigner, was actu- 
ally resident here at the time. There is only one 
«ase the other way, that of Oliva v. Johnton ,- that 
case, therefore, is not to be extended ; and there it 
appeared clearly that the foreigner was domiciled 
abroad. There is no case or principle of law, which 
will sost^ the present appHeation. 

— — RuUr^fiued. 

Wednttday, April 23. 
Do* Am. HcDSON «. Tas Lbkos and BRAoroBD 
Railwat Compamt. 
JUtUmay eompany—Oompentation— Award. 
A rtUway company [having by itt Act of Parlia. 
ment powert to take tifndt eompnltory) entered, 
bf the content cf a landowner, upon certain <if 
tie land*, and an aortement wat made between 
the bmdowmr and tie company to rrfer the 
qutetion of ihe anumnt qf compentation to an 
mrbitrator. After the award wat made, but 
brfore payment of any money or any tender ef a 
conveyance of the landt, Ihe landowner gave the 
company notice to guif the landt, and brought an 
aetUm ^^ectment : 
Held, that tie action teas nof maintainable. 

This was an action of ejectment brought to recover 
a iriece of land ai)joiniqg the river Aire, and formerly 
bdonging to the lessor of the plaintiff. Upon the 
4th of July, 1844, the defendants obtained their 
special Bailway Act, in which were contained powers 
for tbe ooinpulsorv purchase of certain lands. On 
tbe 29th of December, 1845, the lessor of the plaintiff 
gave the defendants permission to enter the land in 

Xiestioo (part of the lands within the powers of the 
et), and agreed with them by an agreement (which 
was modified in the year 1847 by another ureement) 
to refer the amount of compensation to be paid to 
him to an arbibrator. The companv entered and 
took possession of the lands under this agreement. 
Tbe arliitrator did not make his award until the 9th 
of Ma^, 1849, when he awarded to the lessor of the 
plaintiff the sum of 5,023/. for the land and injury, 
me. Itupeared that at tbe reference there had 
bean a dispute as to some rights claimed by the 
lesMT of the plaintiff to the use of the water 
of the liver Aire, and this dispute was renewed after 
the Bward in a negotiation about the terms of the 

remedy for the valae of his land ; and that case having 
also proceeded upon stat. 8 & 9 Vict, c 18, wUch 
was inapplicable to the present. 

Lord Campbbll, CJ. — The learned judge was 
quite right at the trial. This action of ejectment is 
not maintainable. Under the special Act of this 
railway, the defendants had a right to get possession 
of the nroperty by proceeding in a certain manner. 
Instead of that, aU the parties interested agree to refer 
to an arbitrator. Meanwhile the defendants take 
posseasion, and probably make valuable improve- 
ments. They cannot be treated as mere tenants at 
will, or at any time be made to become trespassers 
by a demand of possession. The plaintiff has here 
just as good a remedy as in Doe dem. Armittead v. 
The North Stafferdtkire Railway Company, tor he 
may have his mone^ for the land under the award. 

Pattbson, J. — Under the spedal Act the com- 
pany cannot enter upon the lands which they have 
the power tp take compulsorily until compensation 
be made. But when consent is given to their enter- 
ing, nothing remains but the compensation. It would 
be monstrous if any landowner, dissatisfied with the 
amount of compensation awarded him, m%ht revoke 
his consent, and make the company trespassers. 

WiOHTMAN and Eblb, JJ. concurred. 

Rule rrfuted. 

TInmimi, April 17. 

Xxnnr «. 'Bvtm.—iratmn moved for a new trial on 
attdavitj that the danueea were ezoflsrfve. The trtel took 
phue before CrenweU, J. at York. Salt rf^td. 

BiiK B. Tb« Lohms lire Noan-Wasnaa Rulwat 
CoitTK-sr. —Htndtrim sod BrammU were heard againut 
the rule. The .Mfonurjr-Sowni/, red, ud OwMe oontrl, 
were not esUed npoa. Salt tlktobittfir a mm trial. 

Dob <lem. Niczolls v. Bowaa.— Arff moved to enter 
the rerdiot for the plaintiff on the flrtt and seeond demises, 
and M to part of the proper ty on the third. BmltmM. 

BTSDVLra t. Cbakbbblatbb.— Action for libd, im. 
pnting to the plaintifr that he maintained a nnisanoe on 
his property, tried before Patteson, J. at Hereford ; rer- 
dict for the plaintiff, damage* 40», WiattUf moved to 
enter the veroiot for the defendant on the seoow) •pedal 
plea, or for a new trial, on tbe grannd of nriedirection. 
The Iramed jndge told the jnty that the plea wm not 
proved, nnleu certain aDeotkns in it were proved, which 
were now contended to be immaterieL (Lousier r. Poimttr, 
5B.>0.647; Sttdit r. Tlu tomdon omd'yorO-Wttlmi 

reotian. and that the vetdiet was against t 

npon affldavits. Cmr. adr. mit. 

BaamrAB v. Hirsaura aad AvorxBa. — au^ geqi. 
moved for a new trial, npon the eroand that tha •■•(•• 
were uiuisilie, or to redaoe the damage*. 

Xrnlt r^hrf, 

Dob dw. Putbbv. DtMmmoao.—Bmlt moved, imwit 
to leave reaerved, to enter the vaidiet for tbe dAaiati 
agon sevCTil groond*. Hie aetion wa* brought agaia • 
lesiee upon aa alUged foffeitare, and it wa* am oo*. 
tended— 1. That there wa* a waiver of the tbifdlmt,i 
■ay, or aa aoqnieeoeme in the doing of that lAick n* 
complained of ■* the breadi of oovenant. {Dot v. JBm, 
STaaBt.78; Dot y. KmgU.iC.kV.atU; 2)Mv.JMh>, 
9 C. & P. 706; Jrwuifj. Woodward, 8 B. & C. tit. Bm 
also 1 Smith'* L. C. Bote*, 18, 19.) I. That then ni • 
license from the l***or to do iht act complained at, vtiek 
liccnae w*a nnrevoked. S. That, under the p iii* > *i*Hf 
Parliament for *ettling the«*tate*iadiapate,tkaiaMa 
of tlie plaintiff had no title. (Damper'* caae, I ^Hit 
h. C. 1»-IS: atrtnett't ca*e, ib. »). 

Xmlt to Jkemtmtm. 

BuiAT e. OsBOBBB.— Xlivial*, Scijt. moved btttm 
trial npon the gronnd of miadbeetioB. He mad* ta» 

r>int*, Bnt the lint w** < 
Bx. >30. and tbe Oonrt 
proved at Ihe trial tqpoB 

WooB «. Babtist.— Flaad moved to *at aaide i^nloia. 
tonr jodgment, to reaoind an order of Brla, J. aai fcr 
leave to tha defendant to plewl to the actioo. XtUtM. 

covKT or OOl 


SaamuQmfamM, 4 Ex. Bep. t4t; Qaanaaa v. BanttU, 
«H.&W.4Mi JNdtv.Ai<(<QleU,4C.B.78S, were cited. 


HoorBB e. Baix.— Cue for diatnrliaaoe of a wur ; Ptaa, 
traverse of tbe right ; tried before Martin, B. in Will*, 
*ad verdict for tbe plaintiff. Englakt, Sent, moved for a 
new trial, oa the gronnd of nuaduection. The defondnnt 
held under a leaae for live* from the bttbop, granted in 
IMS ; and had obetmcted the way in 1846 by potting np 
poat*, which bad rcmaiaed down to the commencement of 
the action in 1850. There wa* evidence of n*er for about 
twenty years before 1846. The judge merdy asked the 
jnry whether there had beeo a n*er ■* of right tat twenty 
yean before tbe obetmetion! telling them that, if so, 
they onirht to find an immemorial riKht, and a verdict 
for tbe plaintiff. He onfAt to have told them that, if there 
w«« an antecedent period when no aach right existed, 
their verdict onftht to be for the defendant; aad there 
wa* anch a period in this oaaa, beoanae tbe naer anbae- 
qnent to the leaae in 18S3 oonld not bind tb* reveraiooer. 
irigitt V. Walktr, 1 Cr. M. & B. 217 ; Gale on EaaemenU, 
IM. Jtmlfiti. 

Dob dtm. Titham «. CAnAMoaB.— Praraca moved fbr a 
new trial herein, on the eroand that tbe leuned Judge had 
miadirected the jury aa to tbe effect of eertain aramrea in 
tbe deed* upon whieb tbe leaaor of the plsintiff relied. 
{Figgotft c**e, 11 Bep. 27 Com. Dig. Fait, F. I ; KmgU 
V. Cttwumtt, 8 A. & B. S16i O^ard v. Porter, 1 M. & O. 
909. Oir. ode. tuU. 

PBBmcAB e. CotBOBAVB.— Tbi* wa* a Uthe iaane, tried 
before AUaiaon, B. at Uncoln, when a verdict wa* found 
for the defendant. WkUekurtt now moved for a aew trial, 
on the groond of miadireotion aad that the verdict we* 
«g«in«t evideoee. Cur. adt. nUI. 

Latbav v. Sfbddt. — £mA moved to reacind an order 
of Patteaon, J. aUowing the plaintiff ooata under aeo. 13 of 
tb* laat County Court Act (13 A 14 Tict. c. 61), tbe 

having been removed by etriiarari. The judge at the trial 
had refoaad to certify ; and the olaoae wa* now lield to be 
permiiaive, (Jm«i v, Barriton, 17 Law T. 41.) 

Dob dtm. loan AsBBvavoAK v. Kicbabl.— iUbn 
moved for a new trial, on the gronnd that certain entriee 
in the steward's sooounta bad been improperiy received. 

Cktr. od*. vmli. 

Bspocted by JoBB Tboktsob and DABiBa Tasaus Xru^ 
Jtaqn. B»rri»t*ia at T< a. 

tiwrtday, April 17. 


Rxeeution—Ditchmrgeofimolventp r i itnir Plain- 

t{f dead, leaving no neif tfMn. 
In the year 1847 a dffemdmt wm taien aancB- 
tion, and in July 1849. tie J^nttif Sti imiml. 
vent cireumttanee*. On I9M Ftbnary, ISO, 
IhepUmttift will wat proved, Ms vide* Mag 
executrix. In the following Augmt the wUaw 
died intettate, and without ittue: tad tk»m$k 
diligent tearch had been made, ao aert tf km 
cotUd be found. The Court declined grantint a 
rule for the drfendantt ditcharge, but acceded t* 
a propoMl qf tie dtfendant that tie cote tkimU 
be rfferred to tie Matter to inquire iaia and 
report upon it at tie drfendantt expent, potter 
being given Mm to advertieefor next rfUn. 
Ball morei for a rnle, to shew cause why the de- 
fendant herein should not be discharied oat of cat- 
tody. The affidavit disdosed the foUowiag &ets. 
The defendant was taken in ezecation and in- 
prisoned at the suit of the plaintiff in tbe year 1847, 
for the sums of 647/. and 112/. remectiTely. On tkt 
18th of July, 1849, the plaintiff died, being thea is 
insolvent circamstaaoea. His will was proved ea 
the I9th of February, 1850, his widow boBf tm- 
cutriz. In the following August the widow died ia* 
testate, irithont children ; and though diUgeot sesrck 
had been made, no personal repicaentative of tha 
parties nor any next of Idn could be discovered. This 
gentleman remaining in custody under tbeae dieaa- 
stancesL it is submitted the prewnt motioD dioeld be 
granted. Brougkton v. Martin, 1 Bos. it PuL ITS. 
In that case the Court discharged a defendant out ef 
custody who was in execution at the suit of a pUatiff 
decnsed, on whose part no will had been ptwsed w 
administration granted, and wboae fomily dadmsd 
interfering. The diflferenoe is, that in thiB prestnt 
case there are no next of kin to serve the rule on. 
{Parkinton v. Horlock, 2 New. Rep. 240 ; Gore v. 
Wriqkt, 1 Dowl. N. S. 864 ; Taylor t. Jtarwsn, 
16 M. & W. 781 ; Camp v. Pope, 14 Law T. SM). 
These are all the cases in fsvour of or adverse to ws 
application. The case of Camp v. Pope is an saitbo- 
nty which supports this motion. There the Coat 
granted a rule for the discharge of the defjeodtnt. 
though the affidavit contained no statement of Ae 
plaintiff's death. Here ire have not on]^ evidenoe 
of the plaintiff's death, bnt also of adminiatntioa. 
[Williams, J.— What a singular thing it is that 
here are two persons, ndther of whom baa any next 
of kin.] It is. [Cbbsswbll, J.— There is one 
good reason oo the fooe of your affidaeit why At 
Court should not interfine. It i> sworn that Kids- 
dale died insolvent. Tbe defendant is imprinoad 
for a large sum of money, aad tbe plaintifl*s erediton 
may vrish to detain him tOl payment]. n« d»> 

Digitized by 


April 26, 1851.3 






md&nt U whollf unable to pa; ; he might aa well 
e asked to clear off the national debt ai the snm for 
rhich he is imprisoned. We do not even know who 
to creditor* are. Perhaps the Conrt will allow the 
ase to go before the Master. ^Jsavis, C.J. — ^You 
ropose that the Master should inquire into the case, 
nd report upon it at your expense ?] Yes. 
Jkbtis, C.J. — Let the application be referred to 
lie Master to inquire into the case, and report upon 
; at the defendant's expense j power to be given to 
he Master to advertise for next of kin and make his 
eport to-tiiis Court. ___ Btil* aeeordtnglj^. 

Dob dem. Quinlak v. Roc. 
ludgmtnt agiuiut eaiual ijtetor — Omiuion of tig- 

When the notice to the tenant in potHMtion had 

not been euiieribed with the name qf the eaeual 

Rector, the Court nevertheleei granted a ml* for 

judgnunt agahut Aim. 

Joyt* moved for judgment against the casual 
jector on the nsoal affidavit of personal service of 
be declaration upon the tenant in possession. The 
blaster having objected to draw up the rule, upon 
he ground tlut the notice to the tenant to appear 
raa not signed in the name of the casual ejector or 
ritb any other name. 

Joyce, for the lessee of the pluntiff, now snb- 
litted that the omission of the name was of no oon- 
eqnence and altogether immaterial; mistakes in 
lore important parts of both notice and declaration 
ad been held not material, and in one case where 
lie notice was subscribed in the name of the plain- 
tff instmd of the casual qector ; a rule for judgment 
ras nevertheless granted. {Haelewood v. i%ateher, 

T. B. 351, overruling Peaceable v. Troublttome, 
brnes, 173.) 

By the Cocbt. — ^The notice will do, you can take 

rule. Ride granted. 

Datis e. BunnxLL and Anotbbk. 
Landlord and tenant— Covenant to pay rate* — 

Demand — Re-entry. 
There a landlord it entitled to relate po*$e$tion of 
premiie* on breach of a covenant, la a teaie, by 
the tenant, to pay rate*, it it not neceuary that 
ihe rate* thoutd have been demanded ffthe tenant 
b^or* the landlordretmne* pottetrion under euch 
protito m the leate, nor that the tenant ihould 
have received notice ef the anettment of mteh 

This was an action of trespass for fidse imprison* 
aent. The plaintiff is a puolican and liverv-stable 
leeper, lately occupying a livery yard, stnbles, and 
oachhoose in Cathenne Wheel-vard, Windmill- 
treet. These premises were held by him nnder an 
ismgnment of a lease granted by the defendant 
Sondl to one Smith, which lease was purchased 
rom the Utter by plaintiff, and assigned to him by 
liiection of Barrel). The lease contained a covenant 
o repair, also s covenant to pay rates, in the usual 
brm, with a proviso for re-entry in case of breach, 
rbe defendant Burrell distrained for half a jrear's 
ent due at Lady-day, 1850, but found a sulSdency 
if foods in the premises, and the plaintiff still re- 
named in possession, but he endeavoured to let the 
iremises. On the 25th of April, during the tempo- 
ary absence of plaintiff's servant, the defendant 
lurrell closed the outer gate of the yard, and placed 
adlocks on the stables, coachhouses, and other 
iremise* so occupied by the plaintiff; he also de- 
ained fixtures belonging to the plaintiff, and refused 

permit their remov^. In this state of matter* 
he plaintiff, on the said 25th of April, proceeded 
rith his attorney and other persons to the premises, 
rhere they saw Lane, the other defendant, who re- 
iresented himself to be Burrell's attorney. A con- 
ersation ensued, and eventnaUy the defendants 
■lied the police, nve the plaintiff into custody, and 
lad him removed to the police station. For this 
respass the present sction was brooght. The da- 
aaces wera laid at 300/. 

The defendants pleaded, 1st, Not gnilty by statute; 
Ind, That defendant Burrell was at said time when, 
'k. lawfully possessed of the said premises, and 
>eing so possessed, the plundff with divers other 
•ersons were committing a breach of the peace, and 
rndeavouring to beat in and break the doors of the 
aid premises and to effect a forcible entry tiierein. 
thereupon the defendants, to prevent his further 
Tooeedinf in that breach of the peace, then gave 
lie plaintiff into custody as they lawfully might for 
to cause aforesaid ; 3rd, That the defendant Borrell 
'•s lawfully possessed of and in a certain part of a 
srtun yanl and certain stables adjoining thereto, 
nd that plaintiff entered the yard with other per- 
ms and made a great noise and disturbance, uid 
led violent and threatening lanynage, and disturbed 
lurrell in the peaceable possession of the said yard, 

1 breadi of the peace, &c. ; whereupon the defend- 
ats, in order to preserve the peace, gave the plaintiff 
ito charge as they lawfully might. 

Seplication — De injuria. 

The cause was tried before the Lord Chief Justice 
t (be littingi after Hilary Term in Westminster, 

when a verdict was found for the defendant, leave 
bein^ reserved to enter the verdict for the plaintiff 
if this Conrt should so order it, with 5/. damages. 
The landlord, Burrell, at the trial, contended that 
the premises were out of repair, and that two poor- 
rates were unpaid ; and therefore he rightly took 
possession on breach of the covenant in the lease. 
The jury found that the premises were in repair, but 
that two rates were unpaid. 

Prentice now moved as above, and for a new trial, 
on the ground of misdirection. He made two 
points,— First, that it was not proved at the trial 
that the rates had been personally demanded, or 
that the plaintiff had ever received notice of the rates 
having oeeia assessed. It had been proved, indeed, 
that the rates had been demanded firam the defend- 
ant's son upon the premises, but that was not suffi- 
cient, for a rate is not " due and pajrable " till it has 
been regularly made and notice given to and the 
rate demanded qf the tenant. ( Vrinlh v. Hurrell, 
2 Bailey Moore, 417.) [CnasawBiJ., J. — All you 
make out by tint case is, that the rate is not due by 
dittreu, and not that it is not " doe and payable.'n 
The tenant must have a reasonable time allowed 
him to pay. The second point made was, that, as 
the taking of possession by Burrell, and the en- 
deavour to regain possession by the pUintiff formed 
one transaction, the defendant's possession was in 
fiu:t gained by a forcible entry, and therefore was 
not a lawful le-entry. {Neaton and Wife v. J3ar- 
land, 1 M & G. Mi.) 

CaEsswELL, J. — ^That case has been overruled. 
If the landlord has a right to enter, and be does 
enter, surely he does nothing wrong. This entry 
seems to have been lawful. 

By the Coubt.— In this ease then must be no 
role. The plaintiff was bonnd to take notice of the 
assessment of the poor-rate, and no point was 
made, or could have been made, that a reasonable 
time had not elapsed for the payment of the rates 
by the plaintiff. It was his duty to seek out the col- 
lector and pay the rates. He makes a covenant, 
and it is on him to fulfil it, which he has not done. 
This rule, therefore, most be refused. 

Rule routed. 

BCsnrBSS of the webe. 

W mnrf cMf, April 17. 

EoiHxv t>. WiioHT. — This was an action on a promia- 
•ory sot« given by defendant to pUintiff on 7th NoTsmber, 
IMS, for the sam of Sit. Ik. lOd. The defendant pleaded 
— 1st, that he did not make the note ; 2DdJv, that tae note 
waa given on fraodolent re p ra w ntation, ana there wu only 
partial consideration. The eaoie was tried at the laet 
saaues at Maidatone, before Lord Campbell, C J. and a 
verdict entered for the plaintiff, subject to a motion to 
enter it for the i^pfetidant on the second plea to thp first 
count of the declaration ; alno on two other plenn. Cham. 
frerf, Q.C. now nH)\ o.l ucfuriiinply, and contended that the 
aecona pV'a was not a plea of fraud, Iiut of partial t'l ' tre 
of ooniiaenuiun. The worda "fraudulently and <V it- 
folly" in the plea were mere aurplasaffe, and nii^'lil be 
■truck ont as immaterial. (Barley on Bills, 49-1.) This 
being a plfa of partial failure of consideration, it was not 
necessary to prove fraud, (flari/r v. .B«rJtAoM«e, F-oiVe'a 
N. P. Caa. til.) If rou prove a partial failure of con-i fa- 
tion, no m.'itter under what circumstances, the plaint:: an 
onlvrecOTcr for the remainder, n^tigerv. Vrc, l''i 
N. P. Caa. 216.) By the Couei.— Take a rule. 


Paorsar and Wirs e. TaioSAB. — This cause waa tried 
before the Ijord Chief Juatice at the aittinga after Term. 
Verdict for plaintiiT, damagea 52. Sua^freiff Q.C. now 
moved for a nile oalUua on the pUintiff to shew canse ^hy 
the verdict should not be Bet aaide mid a new trial had, on 
the ground of misdirection, or to arrest the judc^ent, or 
for a eeinr« dt novo. It waa an ai'tion fur slander, nr^rl it 
was now contended that the words set out in the d'" ' ra- 
tion did not joatiiy the inoendocs, and that his Im Up 
shonld have so dii«otad the jory, whereas his lordiihi|i put 
the case to them in the veirworda used in the declaration. 
The langnage used by the defendiant could not, iu point of 
law. bear the meaning the plaintiff had put upon it in thia 
declaration. [Jaavis, C.JT — It is the province of the jury 
to say what the words mean. I tliiuk the first count, at 
an events, is good, though the ■■'•■oiid may not he •;o.1 
The verdict being entered generally uu bvth oouotd, if 
one is bad, I am entitled to my rule. Bj the Covbt. — 
Take a role to arreat the judgment, or for a iw aire do novo. 


BoDiir V. Fbbkch.— Thia canae waa tried before the 
Lord Chief Joatiee at Qnildhall, and the pUintiff noa- 
soited. B$Um, Sent, now moved pnrsoant to leave le- 
ierred to set aaide the nonsoit, and enter a verdict for the 
plaintiff for 7tl. Thia waa aqoeation on the oonatmotion 
of a oontraot for the sale of coab. S*U uiii. 

Rati e. PAaanrsoa and Aiioimaa. — In this ease, which 
waa tried before Brie, J. at the Spring Aaaiaea for Bm^- 
ingham, the plaintiff was DonsoitM. CJCoUey, Q.O. now 
moved, pursnaat to leave reserved, for a role ouling on 
the defendant to shew oanae why the nonsoit sluada not 
be set aside, and a verdict entered ibr the pUintiff for the 
sum of it. This wss an action of trespass against two 
josticet of the peaee fbr a levy made under a warrant 
leaned by them for the payment of a ohoreh.vate. The 
objeotioa ia, that the warrant waa bad on the face of it. 
The directions of the Chnreh.rate Act have not been oom- 

C" d with. The learned judge ruled that thia action had 
n brooght in the wrong form ; it ahoold have been in 
*' oaae " not " treapaaa." fjiavu, CJ. — SopposiDg Par* 
kinaoa's warrant had been in form right, he wo^d have 
been aoting within hia jariadiction.] He iaaoed a warrant 
of diatrecs beoaose there had been a refliaal to pay the 
ehufehwarden, whereas he ought not to have iaaoed it 
ontQ there had been a demand made before the magistoatas. 

He exceeded his jurisdiction by doing that which the Uw 
gave him no aathority to do. There is a case directly in 
point in thu qneation. {Ltan v. Patridi, 4 New Msa. 
Caa. 2fi8.) rjxxru,C.J.— Baathewarraatbeenqoaahedr] 
So. But that ia immaterial ; what the statute says is, 
that no action aliaU arise unleea the oonviotian is iirst 
quashed. By the CocsT.— Take a role. Xulo nioi, 

SocTHiLL e. Kiaam.—BuU, Q.C. and J. Bmtn agreed 
that this caae ahonld atand over. The Court consented to 
the arrangement. 

BaiLST V. Srona. — This canae waa tried at Stafford 
Aaaiaes, before Talfourd, J. — Yerdict for plaintiff^ 
damages, lOOf, WTuUolei, Q.C. now moTed for a mis to 
ahew canae why the Ter£ct ahoold not be set aakie, and 
for a new writ of inquiry, on the grotmd that the damagea 
were exceaaive. The learned judge aeemed to think at the 
trial, that a aom of from VA. to Sol. would be sofBcieBt for 
the traapaaa complained of. TCaxaswiu,, J. — But this 
might have been a oaae in which a jury wera better, cooa- 
petent to estimate the amount of iqjoiy than the judge.] 
There waa no apeciflc damage proTed. By the Couat.— 
There will be no rule. SiU r^fu—i. 

Oazrrxa and Oihzss v. Whitb, — C6U moved for a rule 
calling on the defendant's attorney to ahew canae why an 
.order ahould not be made on him to pay a anm of money 
in thia canae, on the ground that he had not paid the debt 
and coeta iu an action according to his undertaking. He 
had paid part, made many promises by Utters to pay re- 
mainder, bnt 61. waa stiil doe. [Jaavis, C.J.— Wl^ did 
yoo not go to jndges' chambers tor the order ?] In sneh 
a caae we cannot get a judge's sommona in term time. By 
the Cocar.— Take a rnU to shew canae. BmUjM. 

Hoixs v. Baxskx.— Thia waa an action against the de- 
fendant, the proprietor of the Wett tf Enflaad Q is si r ai i - 
iivo newapaper, for giring an inaconrate report of proceed- 
ings which took pialje in a former action of libel orouj^ 
by the plaintiff' and tried at OoUdford Aaaiaea in 1847. I^ 
oanae waa tried at Bxeter Aaaiaea before the Lord Chief 
Baron — verdict for the defendant. Corfor now moved for 
a new trial, on three mtonda, — lat. The improper rejec- 
tion of evidence; 2nd, Uiadirection; 3rd, That the rerdiot 
waa againat the evidence. Aa to the first point, a news- 
paper was pUoed in the hands of a Mr. Hibbert, one of 
the defendaat'a witnesses, and he was asked " whether a 
report of the trial in that newap^ier waa the aame as that 
wUch he had described aa a fair report." The Lord Chief 
Baroa ruled that the qoeetion ooold not be naked j soeh a 
qneation could only be put with reference to a pwer in 
witneaaea's own handwriting, or one which he had aeen 
before. Oartor then asked the witneaa, " Waa a report of 
the trial pnbliahed in the A'aaiieal Staitdard, and did you 
belieTe that to be a fair report P" The learned judge 
woidd not permit the question, and, on being requested to 
take a note that the question had been jraonibited, aakad 
oounael " Will yoo take a note yoursalfr" This waa the 
rejection of eridence complaiaed of. And next, as 
to the point of misdirection; he anbmitted that mis- 
direction might be by actions aa well aa by words. 
The Lord Chief Baron, by oontinued intermptiott and 
remarks, so prejudiced the esse before the jniy, aa to induce 
them to ovenook their du^ (which waa to give due weight to 
the plaintilTa case), and to find for the defendant. Hia 
lordship aaid, " Here ia a pUintiff who complained ot a 
libel last year, and now ooinee again to-day with the ^erf 
aame libel and makes a brief of it." CarUr therefore anb- 
mitted that auch ao obeerration from the Bench was im- 
proper, aa he had not finiahed hia caae, and it was likely to 
prejudice the result. The learned judge replied, ** Before 
you indulge, air, in ancb obaerrationa, you should be osre- 
ful to be correct and to speak the truth." On this eonnssl 
rejoined, " My lord, b what am I incorrect t" The learned 
judge, "In saying you had not finiahed your caae." Car<fr 
then aaid he had not finiahed hia croaa-examination, and 
waa entitled to call witneaaea in reply. The Lord Chief 
Banm then aaid, " Sir, I have no peraonal aoqnaintaaee 
with you, I never heard of you before, and imtil thia day 1 
waa not aware of vour eziatence." Such obaerrations sa 
theee were oalonUted, he submitted, to prqodioe his 
client's interest, and amounted to a misdirection. The 
aumming-np, he contended, waa a oompUte "reply" on 
the plaintiff's caae. The learned judge rebuked the de- 
fendant's ooiuael for not having been aealona enough for 
the defendant, and aaid to the jury, "Can yon give 
more than a farthing damagea t " It was imputed to 
pUntiffs oounsel, that, because he aaked the Bev. 
Mr. Hatchard, "Can you aay, aa a minister of the 
eospel, that thai u a fair repoit ? " he was insulting the 
witneea ; and the aame with regard to a Captain Somara, of 
whom he had asked, ** Were yoo -not the writer of an 
aoonymoiis Utter ? " Another misdirection waa thU, the 
jodge aaid we were bonnd to prove the report an uafUr one. 
This is not ao, we did what waa sufficient — we proved the 
publication of the paragraph, and the Uw vriU infer maliee 
from the fact of publication. Laatly, in leaving the case 
to the jury, the learned judge gave ail the evidence in 
chief for the defence, but not one word ot the cross 
examination. The learned ooonsel then went into the 
point that the verdict waa against evidence, where it is 
needless to follow him. By ue Conn.— We will eonte 
wiUi the Lord Chief Baron aa to the evidence rqeetad. 
With regard to the Verdict being against the areUit 
of evidence, tiie mU cannot go on that ground. Tor 
two witneaaea awore the report waa a fiur report, aad 
Hibbert, on whose croea-examination the plaintiff rdisd, 
did not swear it waa not a fair report ; it waa, thsiaforei 
entirely a question for the jury. Aa to the point of isia- 
direction, it does not appear to the Conrt that the learned 
jodge said any thing which could have misled the jniTi 
there vraa nothing againat which a bill of exceptions could 
have been tendered, aad therefore we have no ground for a 
roU on that point. But on the point of improper rqeetioa 
of eridence, the mU may go. Bmlt aW, 

Paics V, LirrLX. — T. W. Sawndert moved for a rule 
calling on plaintilTa attorney to shew cause why ao ordae 
ahould not laane for taxation of coata indoraed on a writ of 
Bommona, and, if more than oneniixth be taxed off, that he 
ahould not only pay the coeU of taxatjon, bnt also of thia 
apcheation. The dedaion would govern five other cases. 

Wtdnadaj, April IS. 

StUKBiax a. Faratss.— ThU case was tried before 
Flatt, B. at the last Spring Aaeiaee at Liverpool, vardiot 
Sir the plaintiff. The action waa on a policy of insaraaoa 

Digitized by 




[VoL Ur. — No- 421. 




on the •hip Sartland for 1,9761. It speared that the 
B m llimi imi uDed from Qnebee for Enghuid in the 
oootae of the ^ear 1846| bat hninK become injiired, me 
broofbt beek mnd repeired. Tlie captain not haTing snffl. 
cisnt fimde to meet the eipenaea inoorred bj theae repain, 
vhioh amoQBted to 1,676{. apptied to certain penons at 
Qaebeo tending under tlie name of Oilmore and Co. to ad. 
Tance the lame, wliiefa thej consented to do. He at tlie 
name time gare tliem bills on the owners in England, and 
ezeeoted a mortgage, by which it was agreed, in the erent 
of the bills being ushononred, Oilmore and Co. should be 
st Bbertf to take poascfiioiof tkesaid ship, and by pro- 
cealiaaOomtof AdmhiU/haTchersoId. On the 1st of 
Deeeaber, 1846, the poUcy was effected on behalf of Oil- 
Murt and Co. In IToTeBber of the same year the Teasel 
■aiM for Enf^aad, but Ihanng enconstered nnfoTonrable 
weather in the St. Lawrence ue went on shore; shewaa 
ultimately got off, bronsht back, and by process in the 
AdalraMy Court sold. On the »th of Febmary and the 
17th of Jima, Ittt, notices of abandonment were giren by 
OikMfV and Co.— -IT. H. Walton now mored fbr a mle to 
ahew eanse why a rerdict riumld Bot be entered for the de- 
fondaat or a nonaoit entered, or why the damages should 
not be rednoed. Be did so on three grounds, — 1st, That 
the master had no power to mortgage the ship ; 2nd, Ad- 
mittlag that he had, then the interest of Oilmore and Co. 
waa not ptoperlf described in the poBey ; 3rd, Supposing 
that this waa a hypothecation of the ship, then no loss had 
beea inenrred, since the Tease l still remained in specie. 
He cited the foUowhig authorities -.—WiUm t. Ifu Boyal 
Xxkangt Iiuuranee Oampanf, I Camp. 623 ; TtumptOH t. 
Tht JtafOl Exchange Innranee Omfanf, 1 H. & 8. 30 ; 
Com. Kg. tit. "Admiralty;" Viner's Abr. " Hypotheca- 
tion |" OraHltMni, 8 Rol. Ad. B. ; BriJnum'i ease. Hob. 
U : Aortem^ t. XMu, Noys. K. 9 ; jtOat case, i Hagg. 
Ad. B. 48; IWMU t. Vaitk, 19 L. J. li.S. W», Q.B.; 
UaifiM t. MdMmd, 4 B. & Aid. M2. 'Rult «M. 

Bo oth e. Cun.— Tried at the last adjourned Hiddlesex 
titUugs before Jerris, C.J. It was an action against the 
defendant aa judge of the Sonthwark County Court for 
fiUae Imprisonment. Verdict for the defendant. Hunt- 
^ty now mored for a rule to shew cause why the verdict 
ahoold not be set aside and a new trial granted on the 
ground of miadirection. Cur. adv. nU. 

BOBB e. 810TB.— Tried before WnHams, J. at the hut 
OlamorgansUre Auizes. It was an action for seduction, 
and the plaintiff obtained arerdiet for aW. JSrontnow 
ZDored for a new trial, on the ground that the rerdict was 
■gainat eridence. SaU rtftutd. 

OkVDwsu. v. MniBB.— Tried before Talfonrd, J. at the 
i"* &''"f '*««lie« at Oxford. It waa an action of trorer 
for title-deeds. Verdict for the defendant. Alexander 
now mored for a new trial, on the ground of miadirection. 

RnU refuted. 

Do« deal. Richuss c. Lims ; Bichixds v. Samx. — 
Theae eaaes were tried at the last Assises ; the flnt before 
laUburd, J. at Monmouth; the second before Williams, J. 
■t Swansea. Verdict for the plaintiff in both cases. 
K&tHng now moTed for a rule to shew cauxe why a non- 
suit should not be entered, or a Terdict for the defendant. 


lAMsKAV n. Mmsxx. — This waa an action otaenmpiU 
on the indebitatut counts, to which the defendant had 
pleaded sareral pleas. The action was hrooght for certain 
aums which the plaiDtiff alleged to bo due, br virtue of an 
agreement made Iwtween her and the defenaant, whereby I 
the defendant, promised that, in consideration of the plain- 1 
tiff withdrawing an appeal which she had entered at the I 
Hertford Sesaions in the year 1843 against an award made 
onder the Inclosure Act, ho would pay the costs incurred 
in entering and respitiDs; the same. 'The defendant con- 
tended that he had pudall the costs that were incurred, 
and that nothing more was due. The plaintiff obtained a 
Tercet. Ckamnell, Sent, now mored, porsnant to leave 
reaerred, for a rule to shew cause why a nonsuit should not 
be entered, or why a rerdict should not be entered for the 
defindant on certain of the Issues raised by the pleas. 

Bule niei. 

AXLrr V, Oals. — This waa an action of trespass for 
alae imprisonment ; plea, not guilty ; Terdict for the plain- 
tiff. ifacmUajf, Q.C. now moTcd for a rule to shew cause 
why the Terdict should not be set aaide and a nonsuit 
entered, on the ground that there was no evidence to con- 
oeet the defendant vrith the apprehension of the plaintiff. 

Sale nisi, 

Poru>«. Svmi.— In tUa case a rerdict had been taken 
by aoBsent for the plaintiff on certain temu. The plaintiff 
mhaeqaaatly objected to comply with those terms. Btlei, 
Berft. DOW moved for a mle on the part of the defendant, 
to mew cause why a mle of Court should not be drawn up, 
embodTlng those terms, or why the Terdict should not be 
■etMide with costs. Mule niti. 


B«port«d by ViUDnioE Bailit and C. J. B. amnsT, 
Baqrs. Barriaters-at-Law. 

Monday, Jan. 20. 

Ellbn r>. Topp. 

Muter wtd apprentice— Matter carrying on three 

irtdei — Stlmfuu/nnent by him of one of them 

ekurng the time of apprentieethip—Jaetification 

/6r the apprentice leaving brfore expiration (j/* 

Where an apprentice it hound to a matter carrying 

am at that time three tradet, and during the ap- 

prtntieethip the matter abandoni one of thote 

Held, to be a tuffieient Juttificationfor the appren- 

tiettoleate the lervice befbre the expiration of 

tht period qfhit apprenticethip. 

This cue was argaed on the 26th April, 1850, but 
wai directed hy the Coart to be re-argued. It waa a 
demamr to a replication in an action of covenant 
upon an indenture of apprenticeship brought by a 
master against the father of bis apprentice, in con- 
leqaenoe of the apprentice refusing to serre the 
remsiDder of the term of fire years, for which he 

was hound by the indentnre. The master had re- 
ceired 70f. as a premium, and, at the time the in- 
denture of apprentioeahip was entered into, was an 
anetkneer, appraiser, and combctor. Dniioi tbe 
term, the basineas of a com&ctor was' reiinqaisned ; 
whereupon the defendant's son absented himself 
from the plaintiff's serrioe, and the defendant pleaded 
that fact as a justification. The plaintiff replied that 
he discontinued one of inch occnpations, and ceased 
to carry on tbe business of a com&ctor ; and that 
the alteration in his business was made by consent 
of the puties, bat without setting out any deed. To 
this replication there was a demurrer. He srgn- 
ment, howerer, proceeded upon tlie raHdity of the 
plea, and tbe question was whether, if an apprentice 
18 bound to a master carrying on three trades, and 
the master abandon one of thrai, he can maintain an 
action on an indentnte of apprenticeship for the 
appientiee refiistnij to serre the whole term for which 
he waa bound, or is it a jnstiftcation for the appren- 
tice to leave the service of the master when the mas- 
ter abandons one of the trades. 

Maenamara appeared for the defendant. —The 
plaintiff, by his own act, has disabled himself from 
enforcing this contract. The gist of tbe breach is, 
tliat the apprentice should serve according to the 
nature and tenor of the covenant ; yet here he had 
given up one of them, and he could not, therefore, do 
so. The plaintiff, consequently, cannot maintain this 
action. (Comvn's Dig. trt. "Condition," M. 3 & L 4; 
Coke Litt. 206 i and 221 ; Uughet v. Hmmhriet, 
6B. & C. 280; Winttoney. Linn, 1 B. * C. 460; 
Robion v. Drummond, 2 B. & Adol. 303 ; see 1 Salk. 
665 ; Baxter y. Bulterfield, 2 Strange, 1266; Planehe 
T. Colbum, 8 Bing. 14 ; 4 M. & Gr. 498 ; Lloyd T. 
Blaeibum, 1 Dowl. N.S. 647 ; Kingr. St. MartitCt, 
Bxeter, 2 A. & E. 655; Ford v. TV/?*, 6 B. & C. 
325 ; Bryant v. Beattie, 4 Bing. NTC. 263 ; Holme 
V. Ouppy, 3 M. & W. 389; Keyt r. Harmood, 
2 C. B. 905.) Second. The exercise of the three is 
entire and indivisible, and an abandonment of one is 
an equivalent to an abandonment of the whole. The 
consideration is also entire. The benefit was to 
result from the three trades jointly. {Chanter v. 
Leett, 4 M. & W. 295, and in error, 5 M. & W. 698). 
And the principle is laid down in 1 Saunders, 320 b ; 
Kingdom v. Cox, 5 C. B. 522 ; Witcher v. Hall, 

5 B. & C. 269. It is analogous to a partial eviction, 
and if so no rent can be recovered in that case. Third. 
3. The exercise of the three is a condition precedent 
to the right of the master to insist on performance. 
(1 Saund. 320 i ; 2 Smith's Leading Cases, 9; Boon 
V. Eyre, 1 Hy. BUck. 273 & 279 ; Galtieorthy t. 
Struit, 1 Ex. 659.) The non-abandonment of either 
of the three' is a condition precedent to his power of 
insisting on or enforcing his right. The master was 
treated with not in his personal but in his trading 
capacity, and solely on account of his carrying on 
the three — suppose the case, also, of a solicitor and 
notary, or jeweller and watchmaker. Then the 
breach here cannot be compensated for in damages ; 
the only remedy is to leave the service, and seek 
another master ; the covenant goes to the whole of 
the consideration. (Boonv. Eyre, 1 Hy. Black. 273, 
note, and 2 Wm. Black. 1312 ; Campbell v. Jonet, 

6 T. R. 576; Duke of SI. Albant v.^Shaw, I Hy. 
Black. 270 ; Graiebrook v. iroo<fn/#c, 8 T. R. 366 ; 
Larger. Chethire, 1 Ventris, 147; Oliver v. Fielding, 
4 Ex. 138.) 4. If it be not a condition precedent, 
then they must he concurrent considerationa, so that 
the plaintiffs should be always ready and willing to 
perform, and have the ability to do so ; but here it 
is shewn he had relinquished one of the trades, and 
tbe defendant has a right to assume the im- 
portant one, ond he has not therefore the ability to 
perform the covenant. 

Taprell, for the plaintiff. — This plea is no answer 
to the declaration. (R. v. Daniel, 6 Moo. 182 ; 1 
Salk. 68; R.v. Horberton, 1 T. R. 139 ; see 3 M. 
& Selw. 497, and 3 B, & C. 486, King v. Chipping 
Warden ; and 1 Salk. 66 ; fief v. Bamtley, 1 M. & 
Selw. 377; fie* v. Stephen, 1 Dong. 76; R. v. St. 
Martin't, Exeter, 2 A. & E. 6.S9; Bacon's Abr. 
tit. "Master and Servant," G.; Viner's Abr. "Ap- 
prentice," G.) An executor has an interest in the ap- 
prentice of a deceased master, so a service with the 
master's consent with another master to a different 
tradeisaaerviceundertheindenture ; personal instruc- 
tion bv the master himself ia not necessary. (Viner's 
Abr. tit. " Apprentice," K. p. 31 ; R. v. Inhabit- 
anit <if Gwinear, 1 A. & E. 152.) The bankruptcy 
of a master is no discharge to the apprentice. (Strange, 
582; and 49th section of Old Bankruptcy Act; 6 
M. & Selw. 351.) When the master declines btisi- 
ness it is not determined. {R. v. Chipping Warden, 
8 T. R. 108.) If the master takes a different busi- 
ness it is not determined ; the apprentice's time is 
hb master's. (1 Salk. 68; Wiliini v. Wingate, 6 
T. T. 62; 1 Taont. 112; PMer v. Stent, 3 M. & 
Selw. 200.) It may be likened t4> an eviction {Mor- 
, rt'ion V. Chadwich, 7 C. B. 282) ; and that case is 
somewhat like this. Snppose that of a Unendraper 
and hatter, on the Master giving up one, ia the ap- 
prentice to abscond ? Then theae covenants are in- | 
dependent of each other. Wintton ▼. Lynn Is an j 

authority; the plaintiff ia to teadi One trade; th 
consideration is divisible. 8 Viet, c- 16, a. 2, n 
cited. The Court will not take iodiGSal notke <it 
these are three trades. (JFrankKn ▼. BtHt, 4 A i 
E. 60S; Davidton v. Gttryim, 12 East, 389.) TIsei 
should have been an avennent that the com&^ 
was material. See 3 Bine. 355; I Sannd. 330, d 
Cutler v. Banner, II Q. B. 973. Here there U 
been a teaching of tiie three tradea for three y&n 
1 Wms. SauncL 28, shews a plea bad in put ii \ti 
in tbe whole. The parties here are not wittac 
their remedy against the master. 5 Eliz- clet 
1 Wms. Saund. 304, were ref»red to. The sfpo- 
tioe and his father should get rid of the iada^t 
The plea does not shew a sufficient breadi, ao^ar 
replication is no departure, and is good. 

JtfoeiiaauiFa, in reply. Cur. adt. nil. 

Tuetday, April 15.— Pollock, C.B. iiiati 
judgment — In this case, which was toTvaeiiafai 
before my brother Parke, the present LatCa- 
worth, now a'jVioa-Chancellor, my brotbRncaj 
mygelf, and was subaaquently reargioed, I asr 
to deliver the judgm«it of the Court. TUiaia 
action on an inoenture of apprenticeship \fii 
master against the bther of t^ apprentice, feraB- 
fulfilment of the contract, and ^e breaek HEpel 
is, that the apprentice " did not nor woaU Ut^ 
serve the plaintiff, according to the tenor and 4n 
true intent, and meaning of tlie said iodeatock 
on the contrary thereOT, the taid Riduni Tsft, 
during the said term of five years in tlie said Iniii' 
tnro mentioned, to wit on tlie said 22ad dtjufh^ 
1849, did anlawfdlly absent himself &om tfa< sew 
of the plaintiff, and hath from thence hittiii&» 
mained and continued absent from the serrice^it 
plaintiff, contrary to the tenor and efiect al^d 
indenture." On the part of the defendaat ki 
was a plea, craving oyer of the indenbire, 6t»f^ 
it appeared that the master waa to teach the s^ia- 
tioe, and the apprentice waa to become his spja- 
tice in the business of an auctioneer, appraiie, ti 
comfactor. The defendant pleaded tiist the aas: 
had discontinued one of those oocnpatiai!, aa^ 1*1 
ceased to carry on the business of coratsctrr. Jg 
this plea there was a replication that the altnalis 
was made by the consent of the parties, bat xrtM 
setting out any deed. To that reiHicadcn thee •» 
a demurrer, and the question that we hm esf^ 
consider is, whether the plea is a fgoodpla a not 
On the part of the plaintiff it was act axtai^ 
that the replication could he soppcitni It it»- 
viously bad. Such a parol consent (Xr1I'><i(.«|^ 
the plaintiff to maintain an actios efammtm to 
form, which is founded altogetfas co « dw '»*' 
seal. The question, therefore, resshes itidf ato 
the only matter really argued befoR ts,«iak»iii 
whether the plea was good. On thepotol^?**- 
tiff it was contended, ttiat the plea alorieiio'*- 
swer to the plaintiff's cause of artioa, oa tm 
grounds,— first, Mr. Taprell conteniicd that iB 
which the plaintiff undertook to do was to te»a 
three trades, and that he might continas to » 
although he had ceased to carry on oM^ 
them ; and that the plea contained no avmnait tat 
he was nnable to do so. But this objecticn t< I 
founded. The breach complained of is "* * 
apprentice "did not, nor would, serve the pto" 
according to the tenor and effect, true intent «■ 
meaning of the indenture." Now, looking ai* 
indenture, we see that the real engagement was » 
the son Richard, by and with tbe consent d ^ 
defendant, his father, did put himself appRD^* 
the plaintiff, described (in the indentnjt) » • 
auctioneer, appraiser, and com factor, to learn p 
art, and with him "^erthe manner of an appnsts 
to serve." And then the defendant, attieeail^ 
the deed, bound himself to the plaintiff for die « 
performance of that engagement- What then ■» • 
which the defendant contracted the son shonU * 
— to become the plaintiff's apprentice, " to leara » 
art;" that is, the art of an auctioneer, appraisir.oj 
corn factor, and "to serve him after the ""'JJ'*; 
an apprentice." Now, service with a mea "*"' 
the manner of an apprentice " imports, accor^'" 
the meaning of those words, as ordinarily E*'- 
stood, the party served should be carrying (« ^ 
trade which the apprentice is to learn, otherwiat*' 
one is to teach, and the other is to learn the Base. 
not aa between maater and apprentice, but as * 
stmctor and pupil, when, therefore, the one ^ 
ceases to carry on the trade, he, by his act, mats' 
impossible for the other "to serve him *^^ 
manner of an apprentice," and he cannot be bw^ 
to complain that the other parly has wilfiilly up** ' 
impossible for him to do so. The other objectsa 
Ulten by Mr. Taprell was that the carrying on of » 
the three trades was not a conditidn precedmt to t» 
plaintiff's right to recover, hot that the oroissioa* 
refusal to carry on any one must be the aabject a ' 
cross action. This objection is founded on one * 
the rules for determining when covenants 'f^'^^^ 
dents on each other, which was laid down in w* 
V. Eyre, 1 Henry Blackstone, 273, in the m" * 
and followed by Campbell v. Jonet, 6 T. R- S^*^ 
the other cases collected in the note in 1 WlUii*'^ 

Digitized by 


Atml 26, 18&1.] 






Sannden. 320, C. That rale ii, that where the core- 
nant goes to part of the consideration on both sides, 
that is, forms part of the consideration on the plaintiff 
side for the aefeodant's coreoant on the other, a 
breach of such a covenant may be paid for in damages, 
and the whole of the remaining consideration has 
beai bad by the defendant. The covenant is inde- 
pendent, and the performanoe of itisa condition pre- 
cedent. The reason of the dedsion in these cases is, 
as was observed by the learned editor of the work 
cited, that where a person has received a part of the 
conmdention for which he has agreed to maiu a re- 
torn, it would be oiqust, because he did not actually 
hsive the whole ; that he should enjoy that part with- 
out payii^ aoyttiing for it; and, therefore, the law 
obliges him to perform his part, and gives him a 
remedy for any damages he may have sustained from 
not having the whole consideratioB. It is remark- 
abb, that according to this rule the construction of 
an instrument may be varied by matter tx post facto, 
and that which is a condition pracsdent, when the 
deed is executed, may cease to be so by the sabse- 
qnent conductofthecovenanteeinaccaptingthe lease. 
So, in the cases referred to, the defendant, in tbe 
first, must have objected to the transfer altogether if 
tbe plaintiff had no good title to support the breach, 
and he might have refused to pay ; and in tbe second 
he might have objected to the payment if the plaintiff 
had refused to transfer the payment, though he had 
had tiie benefit of learning the art of bleaching. But 
this isno objection to the soundness of tbe role, which 
has been much acted upon; yet there is often a diffi- 
culty in its application to the paiticnlar cases that 
arise; and it cannot be intended to apply to every 
case, even if tbe covenant be not completed as to that 
which forms no pert of the consideration ; and if tbe 
residue of the consideration has been performsd by 
the defendant, that residue must be a substantial part 
of the contract. So, if in the case of Boom 
V. Eyre two or three negroes had been accepted, 
and tbe equity of redemption was not com- 
plete, we do not apprehend the plaintiff coald 
nave recovered tbe whole stipulated price, and left 
the defendant to recover damages for the non-con- 
veyance of the equity of redemption. Whether the 
rale can be applied to the present case has been a 
matter of groat doubt in the minds of some of us, 
but after much consideratinn we agree that it is not 
applicable to this case. If this b^ been an action 
on a covenant to pay an apprentice-fee at the end of 
the term, and the apprentice had served the whole 
period, and had bad the benefit of instruction as 
mSn in two of the trades, it would, we are disposed 
to tUnk, be no answer to the action that the plaintiff 
had £«contiiiued one of them. But this is an action 
tor not continuing to serve as an apprentice, and 
dthoigh the later services of an apprentice are 
much more valuable than the earlier ones, and 
•TO, in part, a compensation to the master 
for the instivction in the conunencement of tlie 
apprenticeship, and so are analogous in some degree 
to aa apprentice-fee payable i» futiuro, the imme- 
diate cause of action is the breach of tlw contract to 
serve, and it seems that the obligation to serve de- 
pends on the corresponding obligation to teach " as 
an apjnentice," and if the master is not ready to 
teach fai the very trade in which he stipulated to 
teach, the apprentice is not bound U> serve. To this 
particular covenant to serve, the relative duty to 
teach seems to us to be directiy in tbe nature of a 
condition precedent, and we are not able to distin- 
guish between the three trades of an auctioneer, ap- 
P™''*'". and com factor, so as to say one is a more 
substantial part of tlie contract than the other. As 
ue plaintilt by his own fault, has disabled himself 
frOAaetingasa master in all the three trades, he has 
no right to conaplain of tbe defendant refiising to con- 
fanne to serve him in any. Our judgment will 
thenfoie be for the defendant. 

Judgment for tkt dffemdwit. 

TkartJof, April 17. 

vBaisV V, Tjord Kr mr ow. Judgment, 

•J3""" •• Mat.— Tried before th* lord Chi«f Baroir at 
OnldliMl, sad a verdict retamed for tko pUintMT, with 
bbwty to nor* for a rule to enter the sane lor the defen- 
d*at.^H»(^/r«y moved sooordiagly. This w»s an actioa on 
tour Mils of exchange dmirn on Reid, Irring, and Com- 
pany, m India. The defendant h»d pleaded th»t he had 
taksB tke heneSt of the Insol'ent Act in India, that he 
ua set fonli a true acoonnt of his debts, &«. in bb sohe. 
di]la,«idamoiiataUier>tlm<l«bt<iftb«piihiti£ Keplies- 
tioi, tkit the defendant did not file the aohednle* men- 
BOMd m tlu! pica, mado ct forma. It appeared that the 
putatuTfl name wu entered in the schedule ns " Simons " 
■a^ejdof "Symons." It was contended thut this was a 
J"*Went desofiption, and conld not mislend ; the object was 
™ ncsioe should be Riren to the cntditora here that the 
Wis w«» ftJJv described. The Indian laaohaDoy Act, 
^ ^ot.0. 21, doas Dot contaia the same chuuia raspeeting 
tha desotiption of bills in the sokedole as the Bngliah Act, 
wit aeMttlne ont tbe bill is sofBcient. (JTuu r. XlcM- 
•"b Bym aad Ifoodv, S32, and the judgment of Abbott, 
VJ. m that ease ; Wtad t. JmeM, note 4, B. and O. iM.) 

Ajfcie nut grwtUd. 

S"»rv. Hatlkt aod aaatb«rAssi<nna.— Tried it York 
"•MjeCrMsweU, J. when a verdict was retnmod tat the 
VaS^ JuaK(s>aowmored,pannaattoleavii,forlih«rtj 

to enter a nonsnit, if the Coort aboold be of opinion that 
the plaintiff was not bound to pay a certain snm of money 
to the bonk, of which he was a director ; and for a nev 
trial, on the ground of misdirection. Th© action was, 
bronght for ftmutore seised under a bill of sale. Fleas, 
Not guilty, not posaesaed. The plaintiffwas director of a 
bank at Huddersfietd, and had permitted the bankrupt 
(Banner) to overdraw his account, to secnre the repay- 
ment of which he had token an aeeicrnment of all his pro- 
perty in certain mills, ko. for 2,000/. stated to be for 
money lent. At the time of the execution of the deed no 
monev had in fact paaned, but certain bills, amonnting to 
l,300f. were oominff due. It appeared that there were 
entries in the bank ooolu aa fallows ; — This account (the 
bankrupt's) is j^aranteed br Abraham Hirst for aQ above 
600?." " Mr. Hirst says, the account shall be paid oft." 
"The 600/.1 is ffood too." These entries were signed by 
the plaintiff. It was contended that this was a void gua- 
rantee, there being ao ooaaideration, and that the plamtif 
waa not bound to pay ; the sum was paid by the plaintiff 
after the act of l»i>krnptey. Cresawell, J., at tne trial 
had said that this mlf^ht !>e taken as a goarantee for any 
snm above 600^ The m.-un point was whether the date of 
the Act of Bankruptcy was the date to he considered with 
referenoa tothispaTmentorthsdataoftheflat. (Tmimg 
V. Bolt, 3 Ex. 105; iiii Vict. o. 2»; 12 it 13 Vict. o. 10«, s. 
126.) Cur. adv. vuU. 

Avni c. DicasoK.— Tried at York, before Croaswell, J. 
when a verdict was returned for the plaintiff. Wafton 
moved, pnrauant to leave reserved, for a rule, to shew 
cauae why the verdict should not be set aside, and a non- 
snit entered. Thin was an action on a proniiasoTy notn for 
lOM. The defendaat pleaded that he did not make the 
note. The facta were these. The defendant's brother 
wished to borrow 100/. and applied to tbe defendant to 
become one of his sureties, which he agreed to do, on the 
representation that one Robinson should be his co-surety, 
and that he should not bo responsible unless BobinsoD 
joiaed, oad be wrote his name on tbo note, leaving a space 
for Bobinson's. The name of the payee was leftm Mank. 
Bobinson refused. The defendant then stated that he also 
reftised to be a surety, and required that the note should 
be destroyed. The stamp had been provided by the bor- 
rower. Robinson refbaing to join, the solicitor with whom 
the negotiation had taken place declined the security, and 
prevented his client advancin; the money. Bufaeequently, 
the plaintiff avreed to become suretr to the bank for the 
borrower (defendant's brother), and at that time he pro- 
duced the note in question, ana said he had authority to 
deal with it, and the hank ngent then filled up tbe date, 
and inserted the plaintiiTs name aa payee. Tbe offence 
of the borrower amounted to a clear forgerv. [Pollock, 
C.B.— Wa held lately, that where a man indorsal ft>r a 
particular purpose, and the bill was used for another. 
It was still a Kood indorsement, and his remedy was a^^ain&t 
the hffent who had misapplied it .3 Yes; bnt in Ruuetl 
V. Lanqnttiff, and many other similar cases, there waa an 
authority to All up. In those cases th-s instmments were 
perfect; this never was. [Fot.locc, C.B. — Yen mean to 
say, Mr. Wateon, that where the person who has tiie pos- 
session of the note cannot use it without a crime, the In- 
dorsee is not responsible ; but where otherwise, he is.] 
[Uarnon v. AVen, S M. It W. [Pasoi, B. — The 
qneetion is, did he tjikn every means in bis power to re- 
cover possession of the note P' The general rule is, that 
the holder of a bill in bhink hw authority to fill it np ; in 
this CMC a contract is ingrafted on the orij^ol 
transaction.] Sal^s ttUi qranUd. 

Chsbsmait e. Exam.— Tried in Kent, before Lord 
Campbell, C.J. Verdict for the defendant. Shre. Serjt. 
moved for a new trial, 'on the ^^ronnd of misdirection, and 
that the verdict was aninst evidence. The Court 
said that they had received aa intimation from Lord Camp- 
boll, C.J. that he thought the verdict a proper one. 

Side rifu9»d. 

FosetER, Executor of Josh. Clarke, e. D^wn us. —Tried 
at Kingston, before Tyird Campbell, C.J. Verdict for the 
defendant on the fine, third, and seventh issues, jk. 
CJuimifrg moved for a rule to shew cause why the verdict 
should not be entered for the plointitT on those issues. 
Shee, Serjt. moved for a cross rule. Soth rulfn granted. 

Fhkkijcdezb. Parkix. Furlkeard. 

WAttXKB V. Kcsaic. — B. D. Keane shewed canse. 
flamiy, in support. Xnh dufkarged. 

TFednetdav, April 23. 

Paob r. WATitixs.— CToiaSei-j, Q.C. moved in this case, 
tried before the Chief Boron, in Middlesex, to set aside the 
defendant's verdict, and for a new trial. Suit ttui. 

Wnaair e. Hnx.itxf.—Siee. Sent, moved in this cause, 
tried before Lord Campbell, C.J. in Kent, to set aside the 
plaintiff's verdict, on the ground that it was af^iinst the 
evidence, for misdirection, and that evidence had been 
improperly received . RhU refkirif. 

F»a:vAKDKs «. Pasxiit (part heard). — The AUanuf. 
General continued hia argument on this motion for a new 
trial. The cause waa tried before Cresawell. J. and was a 
question as to custom of the manor of Wakefield. He 
contended there had been a misdirection, and an improper 
admission of evidence, snd also to arrest the judi^ment on 
the second count, as the custom hein;; an unreasonable 
one. (Ridtanfcmv. JTaMrer, 2B. *. C. 827.) 

Ride niei/oT mudiredion and rejection qfemdsnet. 

BiDGWAT r. LoBD %r kVTOwt .-^WTtatelei/ , Q.C. moved 
for leave to enter a verdict for the defendant on the fl(Hi 
count, or to reduce the damages. It was an action fbr an 
excessive distress. Car*, ado. vuU. 

TouLKiN e. .loTssoir.— JTiisirlM. Q.C. moved to set 
asida the defendant's verdict, and for a new trial, on the 
ground of misdirection. SmU refuetd. 

TsoWLxa e. LocKsrr and Otbbrs.— TFa<soa, Q.C. moved 
to set aside the pUintilTs verdict, obtained at Ooildhall, 
before tbo Lord Chief Baron, on the ground that the ver- 
dict was against the evidence. SuU itiei. 

Slocoicbb e. LvALt,. — Humfrey, Q.C. moved to setaaide 
the defendant's verdict, on the ground of misdireotioB. 
It was an action of trespass, tried before the Chief Baron, 
in Middlesex. Unit nui. 

WitUAMS e. HoLDswoBTH. — WehAtf moved for a cer< 
tiorari to bring np an order made agamst an attorney Ibr 
certain costs, by the County Court judge at Merioaeth, 
for the purpose of having inch order Set aside. 

SiUs awl* 

Beportadby A. Brmisros', Bsg. of the laner.Teaipla, 


Saturday, Feb, 1. 
Tamcbsd and Anotheh e. Letlanp. 
Disirenfor rent — DutrauUng/or more than it 
due— Sale. 
There it no obligation ttpon a landlord, when he 
dittraint for rent, to itaie for what amowU he 
diitraintt and if he maka a faUe ilatemmt 4/* 
the amount, thai doe$ not give the tenatii a eaute 
(tf action, unleu it be accompanied with fecial 
The cote (i/'Taylor r. Henniker, 12 Ad. Sf Sll. 488, 

A declaration in cote alleged that the dtfendaat* 
took the plaintUT' goodt at a dittrett for certain 
arrears of rent, to wit 45/. pretended to be due, 
and under that pretence wrongfully told the 
goods as such distress for the imaalleged arrtan 
of rent and the costs, whereas a tnuM part only 
of the stud pretended arrears was due : 
Held, that there was no express or implied aver- 
ment that more goods were sold than were neces- 
sary to satiny the arrears actually due, and that 
the whole declaration disclosed no cause of action. 
Error upon a judgment of the Court of Q.B. in 
favour of the plaintiff upon the first count of the 

The first count of the declaration was in ease, and 
alleged that whereas the plaintiff, before and at the 
time of the committing of the several grievances 
hereafter next mentioned, held a certain messnage 
and premises, with the appurtenances, as tenant 
thereof to the defendant, Charles Tancred, at and 
under a certain rent therefore, payable by the ploinfiff 
to the defendant, Charles Tancred. Yet the defend- 
ants, contriving and intending to iqjure the plaintiff* 
in this behalf, to wit on, &.o. wrongfully and in- 
juriously seized and took in and upon the sud mes- 
suage and premises with the appurtenances, divers 
goods and chattels of tbe plaintiS, to wit, &c. of the 
value of 801. as a distress for certain arrears of rent, 
to wit 45/. then claimed and pretended by the de- 
fendants to be due and in arrear to the defendant, 
Charles Tancred, for the said messuage and premise* 
with the appurtenances, and the defendants afore- 
said, to wit on, &c undiier that pretence wrongfully 
sold the said goods and chattels as such distress for 
the said aUegeid arrears of rent, and the costs and 
charges of the said distress and of the appraisement 
and sale of the said goods and chattels. Whereas 
in truth and in fact, at tbe time of the making the said 
distress, and during all the time aforesaid, a smaU 
part only, to wit 17/. IDs. of tbe said pretended 
arrears of rent so distrained for as aforesaid, was io 
arrear to the defendant, Charles Tancred, for or in 
respect of the said messnage and premises. 
The second count was in trover. 
To the first count the defendants pleaded payment 
into Court of Is. and no damages ultra. 
Jteplication — Damages ultra ; and issue thereon. 
The jury found for the plaintiff upon that issue, with 
40/. damages ; and the judgment was that the plaintiff' 
should recover the sum of 40/. and 71/. for his costs- 
Upon that judgment error was brought, and ike fol- 
lowing points for arKumont were stated by tbe plain- 
tiff in error, that the first count of the decUntion 
discloses no cause of action, for that no legal injury 
or damage is shewn to have been sustained by tbe 
plaintiff below. The only canse of action aUegad 
being that at the time of the making the distress the 
defendants below said, or, in the language of tbe 
declaration, pretended that more rent was due than 
was in fact due. It will be contended, therefore, 
that as the declaration admits that a tenancv existed, 
and that at the time of the seizure and sale of the 
goods therein mentioned to have been distrained 
there was some rent due, and that aa it nowhere 1^ 
peared that the said seiaura was excessive as a dis- 
tress, or that the goods so seized were sold for more 
than the amonnt admitted to be due, such distren, 
seizore, and sale were lawful acts. The declaration 
does not state that the act complained of, if, indeed 
any act is complained of, was wilAiUy or D^doadf 

The case was argued on Wednesday, Nov. ^ 
before Parke, B. Maole and Creswell, JJ. Flatt, B. 
and Talfourd, J. by 

Peacock {Udall with him) for the pluntiff in 
error; and 
Cowling, contri. 

The following authorities were cited : Taylor t. 
Hewniker. 12 Ad. & EU. 488; W«/*iiuon v. Terry. 
1 Moo. & Rob. 377 ; Atenel v. Croker, 1 Moo. & 
Malk. 172; The Six Carpenters' case, 8 Co- Bep. 
299; Z,y»n« v. Moody, 2 Stra. 851; Crowthtr T- 
Ramsbottom, 7 T. R. 654 ; Eiherton v. PopplewtO, 
I East, 139; Grentille v. The College of PhyiC 
dans, 12 Mod. 387; Carter v. Carter, 5 Bing. 406; 
Hunt V. Sound, 2 Dowl. 558 ; Rogers v. Birkmyr*. 
Cas. Temp. lUrd. 245; 2 Stnt. 1040; Wait v. f%t 
Bristol Poor, I Ad. & Ell. 282; 2 Wma. Suud. 

Digitized by 




[VoL 17. — ^No. 431. 




S84M.2; Smith t. OMiwim. 4 B. & Adol. 413; 
Orowdtr v. Stif, 2 Moo. ft Bob. 190; Vm. Ab. 
"OutiCM," S.; Teiintt T. 8My, 6 Ad. ft EU. 786. 

Cur. adv. imU. 


PAmu, B. now ddirered the judgment of the 
Court. On the argament before ns, it wu con- 
tended tint the first anmt In the declaration was 
bad, iiMwmach aa it disclosed no cause of action, as 
no legal iqjorr waa shewn to bate been committed by 
tbe plaintiff below. The first coont alleges as the 
canse of action: first, tiiat the delbndant took cer- 
tain goods as a distress for certain arrears of rent 
then daimed and pretended by the defendant to be 
doe to him, wher«u part only of the rent waa doe ; 
•nd, secondly, that they wrongfolly sold the said 
goods as soch distreas for the sud alleged arrears of 
rent and coato. As some rent is admitted to have 
been dne at the time of the distress, the distress 
itaelf was not a wrong to the plaintiff below. There 
U no allegation that an nnreasonable quantity of 
goods were taken, sudi aa to constitute an excessira 
-diatreaa ; and the only qnestion is, whether the tact 
of the making of the distreas for rent, some rent 
bebig dne, is rendered illegal by being accompanied 
liy • daim or pretence by the defendant that more 
mi dne than really was doe, or by being followed by 
« sale of tiie goods distrained for, for these pretended 
wreaia, in me manner described in the latter part 
of the first connt. It cannot be disputed that an 
imtnie claim or pretence may gire a canse of action, 
aaiD (Use and nntrae statements may, if all the cir- 
cnmstanoes should concur in respect to it wUefa ate 
necessary to make a false representation actionable, 
and, amongst others, if it had beoi followed by any 
apeoal damage; at if, for instance, the tenant had 
bisen prerented thereby from obtaining sureties 
to join in a replerin bond, some friends being ready 
to join in An bond to secure the true amount, who 
would not i<dn in one to secure the amonnt claimed ; 
nor can it be disputed, if a larger onantity of goods 
i* taken than waa sufficient to raise the amount of the 
rent in anrear and the legal costs, and had been snb- 
leqnently told, such exeesaiTe sale would have been 
ilMgal and actionable. Bat it is contended for the 
pluntiff in error that, putting the construction the 
most fcrourable to the plaintiffs below that can be 
pot on the allegation in the first connt as to the sale. 
It baa really no such import. We agree that erery 
intendment is to be made for the plaintiff, and that 
the dedaration is to be construed to contun a snf- 
fioent canse of action, after pleading orer, if it 
be reaaonablT capable of such a oonstmction ; 
b«t we nunk .thn allegation cannot be reason- 
■Uy ao understood. The ancnment is simply that 
the goods distrained were sold for the said arrears 
and costs, that is, for the purpose of satisfying the 
laid arrears and costs, not for a sum equal to the 
iM aneart and costs, or as and for arrears due. 
Tbm ano express or implied arerment that mora 
goods were sold than were neoessarr to raise the 
■moont of the arrears actuallr due and costs, and all 
Oat need bare been proved if that allegation had 
bean bavened, was that he sold the goods seized for 
Uievai]ipse of paying the arrears, and consequentiy 
byfliepleanotiiing more is admitted. That being 
Mi tAe only (question is whether the simple fiwt of 
ntking the dittrass accompanied by an ontrue claim 
or pretence that more was dne than really was due, 
it actionable? It it said it is so at common Uw, and 
the argament, therefore, ia founded on the snpposi- 
tion that the common Uw casts the duty on a land- 
lord distraining to inform the tenant what it the 
Miear of rent for which he distraint. We think that 
the common law cattt no inch obligation on the dis- 
tn^cr. It has been expressly laid down, "if the lord 
distrains for rent or senrices, he hat no occasion to 
ftre notice to the tenant for what he distrains, for 
the tenant br intendment knows what things are in 
tamt for his land." That is dted from HoU's 
Abridgment, titie "Diitrest" (S). 674, and the an- 
ttority for this IS the Year Book, 45 Edw. 3, 9, where 
™ ^jef Justice, in answer to an argument that 
tte lord, on taking a dittrett, ought to gire notice 
to-the tenant what the cause of taking is, says, " It 
}• not «». lor the tenant it alwayi held by common 
mtmdment to know what thingt are in arraar for bis 
7^ Ti^*^ terrice;" and thit it adopted by 
I«d Chief Baron Gilbert, in his Treatise on Dis- 
JJg. 48. The defendant, howcTer, relied on the 
nrctoon on a similar question by the Court of 
4 £• B .^ case of Taflor t. HeimUttr, 12 
*V* JS. 488, m which it was laid down tiiat a 
dJtbeas under a pretence that more wat due than 
MUly was due wat nnUwfhl in ita inception, the 
•* bdng only matter of acgmTation. We do not 
Swi^ii^S'J^'"'"^"^- We do not tee on 
SJrJyi^'^P'*"""'*""?!"'**'- Noautho- 
2Jy~ oted m farour of the decision, «nd tiiose 
.^ referred to m RoU't Abridgment andtiie Year 
NW P^ not brought before the Coort Some 
««Rins anttonties whidi were dted were in 
grow the defendant : that of Lord Tentetden in 
MriS!k^ w^ "• A»*^' > Moo. ft M. 172, in 
P««>^; but that of Lord AUnger,in CroJdtr 

V. 8itf, 2 Moo. ft R. 190, wat not dted. We are 
not si^sfied with the dednon of the Q. B. 
and therefore think it should be OTermled. The 
judgment, therefore, in the present case mnst be 
rerersed. Judgmatt reverttd. 

Monday, Feb. 3. 
Hall and Others r. Flockton and Othcbs. 
Pltad^tf— Accord and tati^aclion— Accord with- 
out ttttUfaetiem—Part performamet. 
An averment m a pita that it tea* aprttd befteeen 
phdMt\fa and dtfendantt that eertatntkingtehould 
ie done, and " that the action andeamee qf action 
thould be Httled, eatitfted, diteharged, and ter- 
minated by the arrangement and agreement btfore 
Held, to be an inn^fieient averment that the mere 

agreement woe accepted in eatiffaetion. 
THe plea went on to aver that the drfendanie per- 
formed tome <if the thingt epeeified in the agree- 
ment, and were ready and willing to perform the 
Held, iniifffieient to make thita good plea tif accord 
and eati^aetion. 

Error upon a judgment of the Court of Q. B. in 
fiiTour of the plaintiiET upon demurrer to defendants' 
plea, liie action was in eoic, for the infringement 
of a patent. 

VUm, pme darrien eontiuuanee, that the pluntiffs 
ought not further to maintain their action, because 
the defendants say, that after the commencement of 
the suit, to wit, &c. " it was agreed between the 
plidntiff W. F. and the defendants, that the defend- 
ants should admit (and as they then did admit) their 
liability to this action ; and further that a license 
should be taken by the defendants from the plaintiffs, 
and which plaintifis were to grant to the defendants 
for the nte of the said invention in the declaration 
mentioned, and that the defendants ihonld draw a 
cheque npon their (the defendants') bankers, 
to wit, &c. for 75/. payable to the bearer 
thereof, and delirer tlie same to one C. B. 
to be held by him until the said license 
should be granted, and to be then ddirered 
orer by him to the plaintiffs; and further that the 
pfadntiBs and the defendants should respectivdy bear 
and pay their own cost* incurred in this action, and 
that the action and the causes of action indnded in 
the same should be tetded, tatisfied, discharged, and 
terminated by the arrangement and agreement 
before-mentioned. That thereupon, and within a 
reasonable time in that behalf, and on the faith of 
the said agreement, and before this day, to wit, on, 
fte. the dMendants did admit their liability as afore- 
said, and did draw and deliver to the said C. B. a 
cheque on thdr bankers, to wit, &c. for 75/. pay- 
able, fte. according to the said agreement, and upon 
the terms thereof as aforesaid, and the same was 
then received and thence hitherto hath been and 
still is held by the said C. B. upon the terms afore- 
said, and the defendants have always from the time 
of the making of the said agreement and amnge- 
ment hitherto been ready and willing to perform and 
fulfil the said agreement in all things on thdr part 
to be performed and fulfilled, and to take the said 
license to be granted to them by the plaintiffii, and 
to bear and pay thdr own costs incurred in this 
action, and whereof plaintiflk have always hitherto 
had notice." 

Special demnrrer, assigning for grounds {inter 
alia) that the accord is not suffidently certain, as 
no time ia stated within which it is to be performed. 
That die plea is in effect a plea of accord without 
satisfection, aa the agreement could not ope- 
rate as a satisfaction, there being no allegation that 
the agreement was accepted by the plaintiffs in full 
aatisnction ; neither could the admission of a lia- 
bility which did not advance the plaintifis' right or 
remedy. That the delivery of a cheque to C. B. was 
mere part performance, and insnffident. That it 
should have been shewn that the accord wat exec- 
cnted before plea. That if the plea is intended not 
to bar, but in suspension of the right of action, it is 
bad, as it mnst be a final bar or nothing. 

Upon that demurrer the Court of Q. B. gave 
judgment for the plaintiffs ; and npon that judgment 
error was brought. 

The case was argued before Parke, B. Alderson, B. 
Maule, J. Cresswell, J. Talfourd, J. and Martin, B. 
Phipeon, for the plaintifis in error. — The plea is 
good. An agreement accepted in satisftction is in 
itself a good bar without pcnformanre (Cate v. Bar- 
ber, IfRaym. 450; Good v. Cheetman, 2 B. ft A. 
328); and that is the effect of this plea. Where 
there are words of express present agreement that 
the action shall be barred, it would be inperfiuons 
to add, that the agreement was accepted in satis- 
faction. [Pakks, B.— What do you say to the 
word "airangement"?! There ia no special de- 
murrer on the gronnd of ambiguity ; and agreement 
and airanfement are identical. Evam r. Powit, 
1 Ex. Bep. 606, oonlBrms the doctrine of Good r. 
Cheeeman ; and if the acceptance in satisfaction had 
bean added to the plea, it could not have been tra- 

versed. If the Conrt should co uttt ue ttui « a 
agreement by the plaintiff to accent, not the wne. 
ment itself, but the performanoe or i^ Oat moM be 
a different case altogether ; but even in that vie* it 
is submitted that Oe plea is good, becaose tt doa 
shew a performanoe by the defoidant of all dot vk 
to be performed b^ him. [Pakxz, B.— Hat ii igt 
enoogo, if the tUng to be done in satia&ctionia 
nocdone.] When we had performed ^ourpst,^ 
performance became tatisfiiction by virtue of Ik 
agreement. [Maclk, J. — In am ordinarr plit d 
accord and satisfiustion, the acreement Jkfti a, 
that when the thing is done it shall operate m Ms. 
feetion; as, for example if yon iOmi a bone, I 
will accept him in satialkction. But tiiea it ii sol 
enough to say tiiat the horse was delivend, vjtkoit 
adding, that he was accepted in satisfectioa.] Thci 
the first point is tuSdent, that tiie agrecwe^ifaie 
ban the action, and that the plea wonU bei|ood 
plea if it ended with the words "bytlNaiue. 
ment and aitreeinent before mentioned." hTms 
referred to /oieet v. Vatet, 9 B. ft C. 532: WOia 
V. JTetto//, 7M.ftW.a64. 

Melliih, oontrl, was not called upon. 

Pabks, B.— We are all of coinionthsibj^ 
ment of die Court bdow it ri^t, and IksttfefJei 
is defective in not stating that the plsintifaocerted 
the agreement (not the nerfinmanoe of it) is o^ 
faction. All that is sainin the plea is, tiat it m 
agreed that the canaet of action shooU beMfiri 
and satisfied by the agreement and iiiiiiiiaiit 
mentioned, and we think that thatnuttoMaiaae- 
thing more than the mere agreement, vii. theony. 
ing out of the agreement. That was the rievtitei 
by the Court of Q.B. and we concur io it 

Maulb, J.— We are not to be oonnderriMsir- 
ing that there are no other deCects in the pia. 


maxb oomn. 

Reported by T. W. Siimns, B^. of tb* Utfetaele, 

TkwrtdKg, Afrii 17. 
(Before Mr. Justice Colxudol} 
Ht;NT V. Ths Guat NosTazax lUawAr 


Gnmfy Omrt—PnMkifim TMtr. 
Under their Ad ^ParHamtattkeereetlferatn 
Railway Company were rtfoini te tuuey <• 
their line the eoalt, tfc if vtktrpenmi n Of 
carriage* qfiueh p er t t m at * eerta raff ; end 
they were alio re^fuiredteamie) heck til imfli 
carriagee at to much per wait far wA. 0« « 
certain number qf loaded eamtffi tciaf pre- 
tented to the company fir coaKynee tloaj tbeir 
tine, they not only then demand^ fefmat^ Hi 
forward carriage, but alto m turn fir IM tad 
carriage; thit latter turn being rrfiui, the eiU' 
pony declined to convey the gioii, wte r wyoa a 
action wat brought tn the Conlj Ciiri fir 
damagit, retulting from the «aa.ce«i«|nee v 
the tttid goodt. Upon an otjectiM lihet tl w 
trial, that thit wat a muttian rf a rifU (• tsD. 
and, therefore, under the prowite efite. 58 of (fc 
9 ^ 10 VM. e. 95, not mthin thejwiiiicliw i 
the County Court, the judge hM thit 1^,^ 
juriedietiam, and decided the cam <f "^^ 
the plaintif't favour. Upon < molim isiif- 
quently to thit Court for a prthitilion : 
Held, that at the titU to the toll wm mt ieuii, 
but only the time atwhieh itwatiematiitkmi 
payable, which depended upon the eoatfr^" 
to be put upon the Act <if Parliamtnt, tk >4' 
^ the County Court had juritdiclimt, M w 
writ wat refuted. 

Wordtworth moved for a prohibitios to »*«• 
the judge of the County Court, at Barnet, frM"^ 
ther proceedings in this canae, nndertbefw*^ 
drcumitances. By thdr Act of P*^'*"''''?^ 
company are required to carry flie coals, 4c. 01 o» 
parties, in the carria|et of luch parties, st ^eate 
of Id. pertonperiuie; andtiiqr are alioaaera 
obligation to convey back the empty etnactuoe 
rate of 4id. per mue each. The plsintiff baof *■ 
sirous of tending ten trucks of coal by this lite &» 
Peterborough to Potter's-bar, appEed to Aeeoij- 
pany to convey them. The company, hownai J* 
only required payment for the forwaid caniapi "• 
demanded 2/. lOi. as then payable for the bi^ w^ 
riage, which they insisted, under thdr Act, 13«» 
Vict c. 61, sees. 12 and 13, they were entifltdtbti 
to have. The plaintiff having refosed to psT ■■ 
advance the amount for the bide caniags, tbea** 
pany dedined to carry the fmdo, whewag^ 
pUuntiff sued than ia the County Court, at BW* 
for the amount of lost sustained by him """S 
qnenceofsuchreftatal. The cause came otWO" 
on the 24th of February, when it was objeo" "[S 
part of the company that tiie action involvedsflP 
to tolls, and therefore the Court had nojom"^ 
sec. 58 of tiHi 9 ft 10 Vict, c 95 (*eCo«gOi*« 
Act), providing " that the Court shall not to«^ 
nixanceof any action of ejectment, or m ««« >" 

Digitized by 


Ann. 26, 1851.] 






tub to aBf coiptweal or iDoorponal beredjUmenU, 
or to any toll, fair market, or franchiae, thall be in 
qneatioii," &c The qoeation Iianng been arfned 
at length, the jodge took time to consider Us 
hidgment, when, on the 28th of March, be gsre 
It in fiTOnr of the plaintiff, assessing the damages at 
39(. 13s. 6d. On the 9th of April a copjr of the order 
was serred, adjodging the defendants to pay 
SSI. 10s. lOd. being this total amount of damages 
and costs. The present rale waa mored for on the 
groond that the action inTolved a title to toll, and 
was therefore not within the jurisdiction of the 
County Court. 

CoLBMDOB, J. — There sppears to be no dispute 
about the toll itself, but only when it is payable, 
whidi turns upon the constraction of the Act of 
Fsrfiament; and I cannot interfere with the con- 
struction pot upon the Act by the County Court 


Fordtworth.—TiM plaintiff says that die company 
aM not entitled to demand this toll ; the plaintiff 
tendered all the toll except that for the back carriage ; 
it is, therefore, a iond fide question ss to a right to 

CoLBunoa, J.— It is not a question as to a r«ht 
to ton, but whether it was than payable. Suppose a 
demand for a turnpike toll is maoe npon aperson who 
has never passed throngh the gate; tbatwonld not 
be a question of a right of toll. The question is, 
whether the company bsTe a right to secure in the 
first instance the toll for the back carriage. 

tTonbiMrM.— The argument on the other aide 
was that they had no right to charge this toll. 

CouuuDOE, J. — I am ht from saying that in this 
case the jodge of the Conntr Court has properly oon- 
sbned the Railway Act : or that I form no opinion. 
The question I hare to dedde is, whether the title to 
the ton in this case came in question at aU. Itseems 
to me that it did not, but only whether in this parti- 
cnlar case the company had a right to demand pay- 
ment at the time they did. Thn is really merely a 
qoestion of the construction of an Act of nrliament, 
and that was clearly a matter for the judge, and with 
which I cannot interfere. Now it is not disputed that 
the company had a right to toU in respect of parti- 
cular carriMes, and the question was whether the 
carriages of the plaintiff were such as were liable to 
toll at that time. The judge would hare had no right 
(D decide whether or not toU was demandable npon 
eaniagea, but he had as to whether or not these 
eaiTiages were such upon which toll could rigbtiy be 
demanded. I think, therefore, that the judge had 
jurisdiction, and that there should be no nUe. 

__ SMer^fiutd. 

Ba«. «. The Jooob or tbb Coomty CotmT or 


Kx parte Haupxb and Akotbbe. 
Cttiatjf Cttrt—MerpUader claim— StMeiencf ^ 

artfee— M a n da m us to a judge to hear. 
Wiere ahtdfe <ff a CtnoUg Court rtfutei to kear 
M ^fflietUtoH upon a» emmtout tuppotition that 
ttme preUmmtn req uir ement JUt not ieen com. 
^ittwUh, tUt CourluriUintetfere »y aunuiaani* 
w COM^ Aim to hear. 
Ju^meat hmiing hem obtained againit a drfendant 
inan action in the County Court, execution iteued, 
«M certain property wot seized thereunder. 
Hereupon • claim um made ty A. and B. that 
inch looit u>ere their*, and the form of their 
troundi <tf claim «m», " that the said two hortet. 
nvo coUam, and two hridlee were auigned to ue 
h/an indenture, dated the ZSth day qf May, 
18S0, siuf made hetween," ice. {elating the par- 
iMt). Upcn am oijection fahen at the trial, that 
tUtHatement wa$ not a compHanee with Rule 
39, the Judge held the olnection to be good, and 
rc/Wed to hear the daim. 
Upon «b application to thie Court for a mandamus 

tothehidge to hear the claim, 
Atfi fAaf theetatement qfthe groundof claim wot 
nffieient, and the mandamus wae ordered to go. 
In this case a rule luti had been obtained, caUmg 
^n the judge of the County Court of OswestiT, 
rairopshire, to shew cause why a mandamut should 
not issue oommanding him to bear and abjudicate 
upon a daim to certain goods msde by Harper and 
i5^r, It aroeared that a plaint had been entered 
mtteCountjr Court in a cause of Daoiet r. Holbrooi, 
WMKln Daries obtained judgment, npon which, on 
ne 31st of October, execution issued. A \btj waa 
■Mde, and eertun goods were seized. On thie 6th 
of NoTember following a claim was made by Harper 
md Jones to such goods under a deed of assignment 
nom Holbrook, executed in May preceding. The 
paroeolaia of the claim were as follows :— 

"To the derk and hich-baUiff of the County 
vNit of Shropshire, at Oswestry, and to whom 
dse it may oonoem.— The particnlan of tiie daim 
■Bade by us, and mentioned in the interpleader som- 
>>ons issued from the above coort in the cause of 
Bavjes uainst Holbrook, dated the 5th day of No- 
wmber, 1850. are as follows :— Two horses, two coU 
w^aad two bridles, which wereseixed in a stable at 
"•■••y, m the parish of Hordley, in the ooun^ of 

Salop, on the thirty-Arat day of October, in the year 
of onr Lord 1850 : the ground of our claim to ihe 
sud two horses, two eollus, and two bridles is, that 
they were assigned to us by an indenture, dated the 
twenty-eighth day of Msy, in the year of oar Lord 
1850, and made between Thomas Holbrook, defend- 
ant in the said cause, of the one part, and onrselres 
of the other part Dated the eleventh day of No- 
vember, 1850. " Geo. Harper, 

R. Parry Jones." 

At the hearing, it was contended, on the put of 
the ezecntioncredttor, that the notice was insuffident, 
and did not comply with the 39th Rule, inasmuch as 
it was not stated what was the consideration fbr the 
assignment The judge, thinking the objection to 
the claim was wdl founded, ded&d upon not hear- 
ing the claim. 

Peacock, Q.C. now appeared for the judge of die 
County Court, and contended that the judge was 
right in his decision, inasmuch as the notice was in- 
sufficient. (Er parte Tanner, 19 L.J. 318, Q.B.) 

CoLKKiDOX, J. — ^There the claim was merely re- 
peated, but here it is said that the claim is founded 
upon a deed. 

Peacock.— Tbe statement should have shewn that 
the deed was made for a valuable consideration. 

CoLBBiDGE, J. — PrimS facie the deed imports 
consideration. Your contention is that a claimant 
shoidd set out a good case. In ex parte Tanner the 
daimant merely said the goods were his property, 
whidi was not suffident 

Lu$h, for the execution creditor, argued, first, 
that as a competent tribunal had already dedded 
npon the insuffidencv of the notice, this Court would 
not interfere ; second, that the notice was not suffi- 
dent in form for not stating the consideration or 
purposes of the deed, 

Jonet, for the claimant, submitted that the notice 
was imfficien^ and that as the judge had dedined to 
adjudicate npon the daim, the nunufasnu onght to 


CoLEMnOB, J. — It is a weU-known distinction 
witii reference to inferior courts, that if they abstain 
from ad^dieating upon a question n)>on any erro- 
neous view of a preliminary point, this Court wiU 
interfere to compd them to proceed and adjudicate, 
bnt that it is otherwise where they enter into the 
question and decide it, though their decision is nn- 
satisfiwtory. The question is, whether there has 
been an adjudication npon the merita ; or whether 
the Court abstained on account of a prsBmiiuuy 

Kint Now, I most take it that the daimant has 
en refused a hearing on account of not baring 
given a suffident notice; bnt as to that, it really 
seems to me that the notice waa quite suffident. 
The notice need not set out a good ground of daim ; 
it will stiU be a good daim if it describes in what 
way the party claims. The judge will dedde upon 
the validity of the daim whmi he has heard the case. 
This is not the case of Bx parte Tanner. Here the 
daimanta shew how they daim. It is said that the 
daim is not suffident, as thedeed may have been a 
voluntary one, and void as against creditors. So it 
may be ; still thev say this is onr dum, and it is for 
the judge to adjudicate upon it. The rule must be 
absolute. Rule abtolule. 

Thmiaf, April 17. 

Bx roam FstsBT. — Walton, Q.C. thawed oauaa sgainst 
a mla for a vrohibitiOB to certain parties to restrain thsm 
team prooMoing fiirther npon an appUoatioa to hire pos- 
Mnkm of oMtam jMvmiscfl given up nsdar ths 1 & S Viet, 
o. 74. — Lmtk oontra. Cmr, adv. mU. 

Xt Txa AasnaATioii BSTwsijr Laush aito Bbuhb 
Avn Othsss. — Majfnunl ZDored for a mla oaHiog npon 
the dafeadsats to pay a sum of money pnzsnant to an 
awtrcl. Salt aM. 

Sae. e. 'Okwe.—TUam moved for a et r i io rari to bring op 
the depoeitioes taken before the eoroner of SoniaieeteMre, 
npon an inqoiritioo, wherenpoa a verdiot of manalanghter 
waa returned, and why the dafaodant thonU not be ad- 
mitted to bsiL AfpUcationtramlad. 

Tiox.Ciu>oiuaB Enaar Baooa's Couat, reported by 

B. 8. ALLinm, Esq, Barriater4>t.L«w. 

Cointi or BurxBCTTOT, Loanoa, reported by Jobb A. 

VonvLkMqvm, Baq. Barrist«r4t.Iiaw. 

CouBT or Bmauncr, Dvaua, reportsd by J. Lbvt, 

Baq. Barriatarmt.Law. 

A/be. 26, 1850, and March 31. 
Bx parte Wa KBriRLo, re Wakbpiblo. 
Bankrupt Law Coneolidation Act— Certificate. 
Where a bankrupt had been guilty ^ breachet ef 
trutt, the Court granted to him a certificate, 
with a provieo that it thould not extend to pro- 
tecl him from elaimt upon him at a tryttee. 
This was a_ petition bv the bankrupt appealing 
tnm the decision of Mr. Commissioner Balgny, 
who bad refused to grant to the bankrapt his certi- 
flcate on the ground of breaches of trust committed 
by him, and reckleaa trading. The case came on to 

be heard on the 26tb of November, when, after 
some discussion by Bacon and H. H u mpkr e y e, in 
support of the petition, and Rueeell and Dani^ far 
the aadRnees, 

The Vicb-Chamcbi.u>b observed fliat it had not 
been shewn that the bicadies of trust were committed 
by the bankrapt in his oondnet as a trader, and tiiata 
case of reckless tradfaig had not been established 
against the bankrapt, and accordingly his Honoar 
granted a certificate of the third dass, upon the bank- 
rupt's undertaking that it might be readied and caai- 
ceUed upon any grounds which might thereiAer be 
shewn for so dealing with it. 

Monday, March 31.— The petition came on tat 
rehearing, when 

Bacon and IT. Humphrey t sopesred for the hank- 
rapti and Ruttell and Daniel fat the assignees. 

vie Vicb-Cbancbllob said that he consideredit 
a very important ingredient in the case, though it 
seemed that the order, by inadvertence, did not nio> 
ride for it, — that the certificate did not extena to 
protecting the bankrapt from any claims npon Ua 
as a trustee, or any demands upon him as an exe- 
cutor, — a drcnmstanee which rendered it unnecM- 
sary for hia Honour to give any opinion, as fhr ■• 
this case was concerned, upon the enect or """^n^if 
of the words " conduct as a trader," as well as upon 
the effect, whether retrospective or not retrospective, 
of the 286th section of the Bankrapt Law OnaoU. 
dation Act. Wttb regard to the other grounds of 
objection, be must say, not only were they not 
bronght before him vrith sufficient clearaess and pre- 
cision to enable him to act upon them, but assuming 
them to be subject to fair observation, as probaUy 
they were, he was of opinion that this bankruptcy 
having been acljudicated in July 1848, and the certi- 
ficate on which this re-hearing now proceeded having 
been granted more than two years afterward^ then 
I had been a sufficient dmree in effect, though not in 
I nune, of suspension. It seemed to his Hononr, Hi 
this state of circumstances, that the period had 
arrived when the certificate must go. It must be io 
worded as not to protect the bankrupt as to all 
demands against him as a trustee ; bnt for this, there 
was a portion of the transactions which would have 
required very careAil and attentive consideration, 
but, as he said before, there were circumstaoeM 
whidi rdieved him from dealing with that portion of 
tbecaae. __ 

Baportsd by Joa> Lxvr, Esq. Barristar4t.I«w. 

(Before Mr. Commiaaioner Balowik.)' 
it* Walsh. 
Rehearing <if ineoloent—Diimieeal ofpetitiom-' 
A trader, who hoe been ducharged under the Jb. 
eohent Deblore Acl,3S(4 Viet. e. 107 {BnaUtk 
analagoue, I {r 2 Viet. e. 110), may be dedartd 
bankrupt upon a debt returned m hi* teheduttt 
but hi* eetate i» not thereby ditetiedfiom tha 
protieional attignee, and it eoa oafjr veet in tk* 
attignee under the bankruptcy upon the dbi 
miual ijf hi* petition; and euch ai*mi*nd mk 
take place only on a rehearing. 
Creighton appUed to the Court for a rehearing tt 
this eaae, with a view to have the insolvent's patt 
tion dismissed. He proved upon the affidavit ol 
Lyndsay, a creditor, wuich stated that the fasolvent 
had beoi discharged in Cork some six montha pre- 
viously ; that the debt doe to Lyndsay was retomel 
in insolvent's schedule ; that upon thi^ same dektbs 
had recenUy issued a commisskm of haidanptey, to 
which the Mnkrapt had sorrendered ; that nptm Ua 
examination on snirender it appeared that he had 
concealed property to a considerable amount, 
and baring, therefore, obtafaied his disdiaige 
by false representations, any creditor waa entitled 
to ask for a rehearing. [CoMMisaiONaB.— not 
if I rehear the case, I must adjudieato on it, and 
punish him for the fraud. Yon seem to wish to 
liave the petition dismissed.^ That was nndonbteOy 
the object of the appUcatioo. The case had been 
bronght into the Bnikrnpt Coort, but the ptuu er ty 
discovered could not be aaministered there nntu the 
petition was dismissed, and the dismissal could take 
place only upon a rehearing. [The Commissiombb, 
— The creditors in the hankraptcy have got hold ci 
the property, and tiiev want to withdraw tiie eaae 
from tUs Court; but nave not I a duty to p e tfa m 
in punishing the fraud?] No doubt that waa 6ie 
object; bnt as the discovery waa made through tiie 
agency of the Bankrapt Court, the creditors wtahed 
to have tiie estate iKlministered there. They did nut 
seek to have the bankrupt puniriied, inasmuch as lie 
made a fiill and tne disdosnre when examined 
before tiw commissioners, and thus made every 
atonement in his power for what he had previoody 
done. [The CouMisaioifBB.— I am not satisfied to 
let a case of this kind escape because c red i tors have 
now got hold of property which canaet be ad- 
ministered in the Buikitipt Court withont withdraw- 
ing the inaolveot bom the jurisdiction of tins Coat.1 
It wonld eaaharass the eaae very much if it-wan te 

Digitized by 




[ToL 17 — No. m. 



Nl«l PRIUS. 

b» teteiiMd io the Tuolreat Court, and the insolrent 
. mbjaatad to a long lemwd for finudulant coacesl- 
ment of property, 

The CoMVisaiovBB comaated to diraun the 
Mtition, the cace net to be taken as a precedent for 

Re DoYLB. 
Equitable meiigmnent qf bond — Lackei, 
^ ertmtor to whom it htnded a bond at a tetmrits/ 
/or hie debt without a»y attignmetit, and omilt to 
have judgment entered up apaintt the obligor, 
lahmriby the debt it loit, cannot, upon the in- 
tolveney of the obligee, prove tipes He eitate for 

Xbif bad been an iniolvancy of many years' stand- 
ing. The inaolTent bad died, and a scbednle- 
. <nditor having disooveied that hii personal repre- 
W n ta ti TO wa< in posmsion of propertv that bad been 
oautted from tiie schadole, proaeeded to have it 
iMiile amiable for the benefit of the creditors. 

Creighton, for the credits, moved the Court (br 
•Border to compel the personal representative of 
tiM insolvent, who had been also appointed assisnee, 
to execute a declaration of trust as regarded the 

r party omitted firom the scbadnle, and which was 
bis possession as personal tapiaseatativa of the 

hny, for tlie personal leprasentatiTe and assignee, 
obtained a reference to the chief derk to inqnire and 
Mport into the nature and amount of the creditor's 
4«0tj and the chief clerk's report stated that the 
Owditor had been originally handed a bill for 2M. 
md • bond for 5(W. ; the aooeptor of the bill and 
tba obligor of the bond was a person named Hughes, 
who was dead, having left proporty sufficient to pay 
. the bond and the bill, but tne former was barred by 
tlta Statute of Limitation, and the second could not 
be reoowred, inasmuch as judgment had never been 
MitSKd up on it. 

CreigUon contended that the mere handing over 
<rf.tii« bond was an imperfect asiignaieDt of a chose 
In action ; and that not being duly assigned to the 
' eraditor, it vested in the assignee of Doyle, and that 
lit was not competent for the creditor to lave iudg- 
•aentmtered up on it after the iasolvency; that it 
was tha duty of the debtor, who was to have been 
discharged, to have taken care that a proper assign- 
ment should be executed. It was his duty to do 
that wfaich was to rdsase Urn from his liability. 
(Crawley v. HiUary, 2 M. & S. 120.) It was his 
duty also to inform the obliipr of the bond that it 
had been handed over or assigned to a third party. 
ITie creditor was not therefore guilty of any laches, 
it ma the debtor and his estate should tie liable. 
With r^ard to the bill, he admitted that that should 
Jm ftoodc off the creditor's claim. 

£«*y was stopped by the Court. 

Hi* LoROSBip lliougbt there had been a per- 
ig«ay valid equitable assignment, and that a cre- 
iditw could not be permitted to bold over a security, 
«ri^naUy good, until it was valnelen, and that 
Jiaving autber pat it in suit himself or offered it to 
tiie assignee for the benefit of the creditors, he could 
not now be permitted to prove it on the Insolvent's 
Mtate. Claim onfootqfbiU and bond reeled. 

Jbu»leent debtor~PetHiai^ ertdiior't debt. 
A. debt from which an iniolvtut it ditcharged by 
the Iniolveni Debtor*' Oamrt will be a good 
petitioning ereditor'i debti but the Ba»krvpt 
Court camutt admnieler hit eitate until hit 
getitio* in the Intolvent Court it ditmiited. 
Tbe bankrupt in this case had been discharged as 
.an insolvent debtor in Cork, and the petitioning 
Gseditor was returned in his schedule for the same 
. debt, upon whidi the present oommission bad been 
. mad out. The Commissiooer, on the case coming 
before him, waa somewhat apprabensive that theie 
sraold be a difficult in tbe way, for although, on the 
.mftority of the case of JolU* T. itoun(fourd, 4 B. 
& A. 256, a debt returned in an insolvent's sdiedul6, 
onder which he had taken his discharge, will be a 
. jgpoA. petitioning creditor's debt, yet, inasmuch as 
more than two months elapsad since the filing of the 
.Mbsdule, the Bankrupt Court could not administer 
tba estate until the insolvent's petition was dis- 
missed, and the property divested from the pro- 
vilioosl assignee in tha Insolvent Court 

CreighUm, ica the petitioning creditor. — There 
was no doubt that the creditor's debt was not dis- 
diaigad by the operation of the Insolvent Debtors' 
Act, so as to jprevent him sueing out a commission. 
The other dilBcttlty, no doubt, existed, and it was 
the intention of the petitioning creditor to apply to 
Aa Insolvent Debtors' Court to have the petition 

Xoy. for tbe bankrupt.— His client would co- 
agenta in having his jpetition MtnA^^^ ^id his 
>«state brought into the Banknipt Cowt 

X<s< Vrfus. 


Seperted by W. J. Mitcalh, £<q. of the Inner Temple, 



Monday, Feb. 10. 

(Before Jebvis, C.J.) 

Davis r. Burbkll and Lane. 

Amendment — Eridetice—Vmti-a — Appreheation — 
2 4-3 Vict. e. il— Notice of action— CoTewint— 
Waiver— Certificate— YS i( 14 Vict. c. 61. 

The defendant pleaded not guilty by ttatute, and it 
utat to entered in the ittue; but in the Nisi 
Priut record the word* "by liutute" were 

Held, that it could not be amended, except by 

And qnsere, <u to the amendment with content. 

The f/Ui Priut record of nn action in ejectment, 
with the postea indorted, it eeidenee to thew that 
the trial toot place, but not to thew that the lettor 
ifflhe plaint^ wat not entitled to the premitet : 

Qntere, whether an action in ejectment between 
Doe dem. A. r. B. is admittible in an action by 
B. V. A. and C. 

Plaintiff wot tenant to defendant, with a covenant 
in the leatefor thtpayment oj'ralee, and a proviio 
for re-entry, on non-payment. Thf ratet were 
in arrears the defendant entered in plaintift 
abienee, md put locit on the doort ; plaintiff, on 
hi* return, broke the locit, and trot given into 
euitody. In tretpast for fahe impritonment ; 

Held, drfendant wat lawfully in potteision of the 
premitet, and that he wat authorised by 2^3 
Viet. c. 47, It. 54, 66, to give plaintiff into 

Quiere, y defendant had been timplyin potiettion. 

A covenant to paint at the end of every five yeart it 
not a continuing covenant. 

A verdict for a turn not exceeding 5/. requiret a 
certificate for eottt under 13 l( 14 Viet. e. 61, 

This was an action of trespass for false imprison- 
ment. The defendants pleaded not gulltv by sta- 
tute, and that the plaintiff was found within the 
Metropolitan Police District committing a breach 
of the peace and endeavouring to make a fordble 

The words "by statute" were annexed to the plea 
in the issue, but were not inserted in the Nisi Prius 

Bylet, Serjt. for the defendant, applied to amend 
the record by inserting the words ; the record was 
made up by the pUintiff, and it was his &nlt that 
the omission was made. 

jEavis, C.J. — I cannot amend it; it can only be 
done by consent. 

E. Jamtt, Q.C. for tbe plaintiff, consented. 

Jervi8,C.J. — I will not, even with consent, make 
the amendment ; and I should advise the officers to 
have nothing to do with it ; the plaintiff's attorney 
has made the mistake ; he ought to make the amend- 

tThe record was then amended by the plaintiff's 

It appealed that Barrell had demised to Smith 
for twenty-five years, from December 25th, 1842, at 
1751. per annum I that the lease contained a covenant 
to repvr and to pay rent and rates, with a proviso 
for re-entry for breach of covenant j that Smith had 
assigned to the plaintiff; that the defendants, al- 
leging breaches of covenant, had entered and obtained 
possession in the absence of the plaintiff; that the 
plaintiff, on his return, endeavonred to force an entry, 
and knocked off from the doors the locks which had 
been put on by tbe defendants; that for so doing he 
was given into custody, and that the charge made at 
the police station was " wilfully breaking off some 
locks from some doors in Catherine Wheel-yard, 
Great Windmill-street" To shew that the defend- 
ants were not lawfully in possession of the premises 
damaged, the Nisi Prius record of a prior artion in 
ejectment in which tbe present plaintiff was defend- 
ant and the defendant Burrell was lessor of the 
plaintiff, was tendered ; the pottea was indorsed, 
shewing a verdict for the then defendant. 

Bylet, Serjt. objected the record was not properly 
made up, and was therefore not admissible. But 
even if admissible, it was not evidence against the 
present defendants— first, because Doe was the 

C' 'itiff in the former action; secondly, because 
«, at all events, bad nothing to do with it. 

Jertis, C.J.— If binding on Doe it is binding on 
his lessor. 

Bylet, Serjt. — Probably they would be identical, 
but at any rate it was not evidence against both the 
present defendants. 

Prentice, contra. — This was the only record made 
up when the verdict was for the defendant. 

Jxnvis, C.J. — No doubt that is the practice, but 
the pottea proves only that there was a trial between 
the parties, not that judgment followed. 

The evidence was not pressed. Itwasshen^ 
there was a distress ou'April 13th on behalf rfg 
defendant Burrell far rent due March 25th. 

Bylet, Seijt contended that Barrell vis MH 
In possession ; that he bad a right to enter fbrst 
repair, for non-payment of rent sad of rata; Is 
he did enter ; that after he had entered, uai iti 
lawfully in possession, the plaintiff csme and >si: 
the locks; that for this he was properly {im^ 
charge, under the Police Act, 2 & 3 victcC 
s. 51, div. 10; that s. 66, of th&t Act eaJM\ 
owner of the property to apprefaraid any pas 
found committing snoh offence. Sot tiie d<MK 
were entitled to notice of action, for 2 iSTi. 
c. 17, was to be construed as one A[ct with ISGs i 
c. 44, and sec. 41 of that Act exprarir ntos 
notice of action. Notice of action ires steie^aB 
under 7 & 8 Geo. 4, c 30, s. 41. He ioya 
offence against sec. 24 of that Act, any fa M scta; 
in execution of tbe Act waa entiW s slice. 
{Hughet V. Buckland, 15 M. & W. 316; Bwr. 
Thnmboroiigh, 3 "Ex. 846.) 

Jervir, Cf.J. — ^The question is. whettatek- 
fendant believed that tbe plaintiff was bnabilii 
lock, notwhctherhe believed himadftnhssK^ 
the property. It is for the jury ; so is tfefiA 
whether there was a want of repair. 

Bylet, Serjt — They have shewm onrriglitbdt 
our entry, and that we were at the time in psoa 
It is sufficient that the defendaata were in psE- 

Jervis, C.J.— I shall leave to the ^vMr 
the defendants were lawfully in posseasioa. If e 
I shall reserve to you tbe quesUoo whetbr|a» 
sion alone is suffi<Hent. 

Bylet, Serjt— The defendants claim AsIk 
given the plaintiff into custody under aeci'U 
3 Vict. c. 47, for attempting to eomoiit <ta& 
entry, and for a breach of the peace. Sec ffiatf 
" That any person found committing uj <^ 
punishable either upon indictment or u t ast 
meanour, upon summary conviction bjmtaiik 
Act, may be taken into custody," Ac Te &^lh 
committing a forcible entry. ' Tilis, tao^ i< ims 
the presence and sight of tme police aasttH^ 
takes him. 

Jertis, C.J.— Breaking lo<to or bnl^S^ 
peace in the presence of a constable mnM sattaaa 
the constable to take him. But ii (is cue Ik 
constable waits and the defieadasa jf* iie in 
charge. The constable docs not io itostoo^n 
motion, but on your order. It«s«* tla*"* *> 
tlie question whether you vr«K oiram of tie pre- 
mises. If the jury thmk tbst tiken «« »'™'« 
repair and an entry, and if they shsllttei*^^ 
defendants, being thus lawfully in poBBsioo, We« 
that they were acting under the statasa,t^ waa 
be entitled to notice of action. ^ , 

Bylet, Serjt— The defendants were sho ems 
to enter for breach of the covenant to ssist nail* 
the end of every five years, and outsias «t tin « 
of every scvenyears. 

Prentice. — ^That Is not a continnioi ha* ' 
was waived by distress for teat. So the (»•■! 
for payment of rates. 

Jervis, C.J.— To the jury : Was Buudl ia ps 
session ? The defendant's counsel sap Ata f 
three w»8 in which he may have been so : sate a* 
proviso for re-entry for non-repair ; fornoe-pna* 
of rates ; and for not painting. Now, the P^ 
covenanted to yield up the fixtures to tiie d efaj* 
at the end of his lease, and he has na** 
some; but the Court of C. P. has heldttitfaa 
removal gives no right of re-entry, for he Wi* 
them back daring the term : I shall bold S9; t* > 
he has removed them so recklessly as to asal 
damage, it would amount to want of repiir. ^ 
must be reasonable repur, but there must ito «' 
reasonable time for repair. If you find wjs( of *" 
pair, the defendant had a right to enter: *«'*' 
then be lawfully in possession, and I sha^&^ 
a verdict for the defendants on the geatsil ** 
under the Police Act. So if you find that tbl* 
were in arrear. As to the painting, it is not a*' 
opinion, a continuing covenant but it is bof ^ 
have your opinion upon it As to the second ;!*' 
was the plaintiff there making a disturbance >»*' 
deavouiing to enter forcibly ? Assess the liu'P 

Verdiel^iremiteiin repair andpnatii-* 

ratet in arrear, and plaintiff then rt^ 

a ditturiance— damage*, 5/. 

Jervis, C.J. — I think, that as the rates <Met 

arrear, tbe defendant was entitled to enter i ^^ 

was therefore properly in possession, and v ^ 

titled to notice of aotion. The verdict must U* 

tercd for the defendants on the general issue. 

Prentice applied for a certificate under theC^ 
Courts Act >n case they should $uo<»ed io salv^ 
the verdict for tbe plaintiff.' The Exteo^^ 
13 A 14 Vict c 61, 8. II, provides that tiie pUf 
shall have no costs, if " be shall racovar a iO* 
exceeding 51." 
Jervis, C.J.— Granted the certifioate. 

Digitized by 


Mat 3. 1851.] 






Stforted by BicmAXo Qxanatxt Wxltoxs, Ewj. of the 
letter Ien^«, B«rritter-«t-Ziaw. 

July * and 15, IBM. 

Jte St. Gboroe Steam Pacxet CoxvAirr^ 

rf parte Hbnbsset. 

fVwufir ^mharei— Acceptance — Pwrekate m naau 

yanntthr r penon — liiability — Contributory, 
fVhert the £eed oftettlement of ajomt-ttoci com- 
pany required that each trantftr thould be exe- 
cuted by both the trantferor and transferee, anda 
gurehater o^tharei had been made by a father tn 
the name oj hit ton, whott name wat thereupon 
interted in the litt of thareholdtn ; neither lie 
purehater or hit ton executed the tranter, and 
the ton repudiated the tharet ; it wot 
B.M that a valid transfer of the tharet had apt 
been made by the vendor, and thai he mat 
properly placed on the litt of contrtbutftriet uader 
an order to Kind up the company. 
J. C. Heneasey, tne executor of M. Heneawx, 
appealed against an order made by Vice-Chancellor 
Knight Bruoe, by ndiicb was rewned the decision 
of the Master, who had excluded the name of the 
tppeUant from the list of contributories of the above 
sompoDy, and referred back the report to be re- 
newed. Id 1841 M. Henessey was the owner of 
iertain ahares in the St. George Steam Packet Com- 
lany. On the 22nd Oct. 1841, he sold sixteen 
ibaies of 25j. each to Thomas Richard Needham for 
190/. that gam being provided and paid by T. R. 
Needham. It appeared that, in consequence of di- 
eetioos given by T. R. Needbam, the shares sold 
rere tiansfiarred inbx the name of R. Needham, tlie 
on of T. R. Needham ; that this tranifer was exe- 
nted by M. Henessey, but was not executed by R. 
■feedham ; that the name of R. Needham, was, bow- 
iTcr, dnly enrolled in the books of the company, and 
Hgistered as one of the shareholders of the company, 
talso appeared that R. Needbam fste no authority 
p fais &ther for the transfer, but, m het, from the 
;rst repudiated the gift ; that he never received any 
Svidend on the shturas, or attended any meeting of 
iie company ; th^t the repudiation of the transfer, 
lioqah known to T. R. Needham, was never com- 
inmcated to M. Henessey or the company ; that 
oth M. Henessey, during his life, and J. C. Henes- 
ey, as his ezecnttU', afur his death, wliich took 
ilaoe in May, 1846, ptud calls on shares, which M. 
Seneasay continued to hold in the company, but no 
Mils on the sixteen shares transferred ; that neither 
If. Henessey nor his executors heard anything in 
tetBreoce to these shares until October 1849, when 
me latter received notice that his name was put on 
the list of contributories of the company by ^ offi- 
~ial_ manapr. T. R. Needham made an affidavit, 
jtatinq that in consequence of his son re- 
pudiatmg the gift of the shares, and the 
transfer not having been executed, he treated 
the transaction as at an end, and that, though 
lie received circulars and notices addressed to his 
son, he destroyed them without making any com- 
mnnica^n to his son. The fallowing clauses of the 
deed qf settlement were referred to : — " Clause 17. 
that it shall be lawful for the proprietors in the said 
oompany, or their legal representatives, whether by 
marriage, or as execntors; or administrators, or lega- 
tee«, to sell and tmnsfer to any penon or persons 
wbomaoever all or ai^ of the shares of such pro- 
prietor in the property and funds of the coqipany> 
and nheDftver any sw^ sale and transfer fhall be 
made, a return or account thereof shall be made tp 
the dark or the agent for the time being of the said 
companj, and shall from time to time be entered 
and registered in the books of the said company, on 
Sayment of the fee of 2s. 6d. on each share so 
tnuuferred; and the person or persons to whom 
tnch transfer shall be mad^ shaU be and shall stand 
in all respects, and to all nitenta and ptnposes, in 
fhe place and stead of the person or persons making 
such transfer, and shall be liable to be sued in an 
action of covenant, or otherwise, for any breach of 
ue roles and reeulationk of the said company, as 
nilly and effecttiaUy, to all intents and purposes, as 
if such person or persons to whom such transfer or 
transfers shall have been made had been a proprietor 

S proprietors at the date of these presents, and the 
nn of transfer of such share or abates may be in 
the foUowing words, or to the like effect, varying the 
name* tad descriptioDS of the «oatr«ctiqg pwties as 
toe case may require : — 

To- , nl. of ,to 

both inoluaive, J consideration of 
^d to me by 
w , in the connty of , do hereby 

«H|lin, sell, asaicn, and tnne&r to tbe said 

shares, of J. each, numbered as per margin, cf 
wain tbe capital ateekef the company caltedtbe 
w. Geaege Staaai-padut Conpany, to hold nnto 
the said , his hesrs,.a(eentaie, adoUnistrB* 

*ow, and ■s rtps , sobjeet to tiie saa^ oottdMens a* 

▼Ok, xvn. So. Aaa. 

I held the same immediately before the execution 
heieof. And I, the said , do hereby agree 

to accept and take the said shares, sul^ect to the 
same conditions. As witness onr hands, this 
day of , 18 . 

'Witness, Signed. 

Clause 18. " And every deed or transfer being 
exBcnted by the seller or sellers and the purchaser or 
purchasers of such share or shares diall oe delivered 
to and kept by the clerk of tbe said company, who 
shall enter in a proper book or books to be kept for 
that purpose, a memorial of such transfer and sale, ^ 
and endorse the entry of such memorial on the said 
deed of sale or transfer, for which no more than Is. ' 
is to be paid, and on request a certificate of each 
share ^all be delivered by him to tbe purchaser or | 
purchasers for his, her, or their security, and for , 
which certificate no more than Is. 6d. shall be paid : 
and until such memorial shall have been made and 
entered as above directed, such purchaser or pnr- 
chasers shall have no part or share in the profits of 
the said company, nor any interest for anA share or 
shares paid to him, her, or them, nor any vote or 
votes in respect thereof as a proprietor or proprietors 
of the company." 

Clause 22. That every person who, being a par- 
chaser of any shares in the capital of til* company, 
shall take a transfer or assignment of such shares, 
and shall not, previously to such purchase, have 
executed or otherwise acceded to these presents, and 
shall not at the time of the said shares vesting in 
him in such capacity by the means aforesaid, oe a 
recognised proprietor in the compeny in respect of 
any other snares in the capital, shall, as to all duties, 
obligations, claims, and demands upon or agaipst 
him in respect of such shares, be considered as a 
proprietor in the company firom the time of the 
shares being so j^nrchased by or becoming so vested 
in him as aforesaid, but as to all profits, rights, pri- 
vileges, benefits, and advantages to arise from the 
said shares, no such person shall be considered a 
proprietor in respect of the same until he shall have 
executed or otherwise acceded to these presents." 

By the 51st clause it was declared that the person 
in whose name the shares stood should he dfeemed 
tbe absolute owner, and that the company should not 
be affected with notice of any trusts. 

Malint and Lunage, for the appellant, cited 
Taylor V. Hughes, 2 Jones & Lat. 24; Barnei v. 
Pennill. 2 Bouse of Lords Cas.497; Fatter v. The 
Bant qf Bnaland, 15 L. J. Q.B. 212. 

Bacon and Prior, contra. 


The LoKD CoMyiasioNin (Mr. Baron Rolfe). — 
In this case the companj had been dnly constituted 
br deed, and it was in fall operation. Michael 
Henessey was in and prior to the year 18il a share- 
holder, holding several shares, that is, one of WOl. 
and several of 25J. ; andthepnly qoestSen is, whether 
on the 22nd October, 1641, he sold and transferred 
sixteen 25{. shares, as to have gotten rid of aH Ka- 
bSity to the company in respect of thera. M. 
Henessey fed in 1846; and J. C. Henessey is bis 

5 ersonal representative. The Master considered that 
I. Henessey had in 1841 divested himself of ail in- 
terest in these sixteen shares, and reftised toplaee his 
executor on the list of contribntories. Butontne appli- 
cation of the official manager, Vice-Chancellor Knight 
Bmce came to a different conclosion, and rsferred 
it back to the Master to review his report, in ofder 
that be might place on the list the nameaf J. C. 
Henesaey, as execntor of Michael. Mr. Henessey 
moved by way of appeal to discharge this order, on 
the ground above stated, namely, that Michael 
Henessey had cetaed to be the holder of these Aares 
in October, 1841. A great deal of evidence was 
taken before the Master; but tiiere appears in the 
result to be no donbt about the faets, and Ae only 
qnestion is as to the legA conseqaenoe of those facts 
when considered witii Terence to the clause in the 
company's deed relative to transfiers. The cbnae 
direrting the mode of transfsr is clause 17, and is as 
follows. (His lordship here read the clause asabove 
set out.) The facts are these: in October, 1841, 
Thomas Richard Needham, wishing to benefit bis 
son, Richard Needham, who was an engineer, and 
whose bnsineas made it necessary for bun often to 
eroas to end from Bncland and Ireland, pmebased 
for his son, through a broker, at Cork, the sixteen 
shares in question fVom Mlehari Henessey (the 
bolder of snares to a cerfmn amount, having the 
privilege Cff passing to and from in the company's 
vessels without charge. The pnrcbase-money, I9M. 
was then paid to Minnel Henessey by the agent of 
Thomas Riehard Needham ; but tbe purchase was 
made in the name of the son. Michael Henessey 
therenpon executed, at the office of the company at 
Cork, a transfer to the son, that is, Riehard Need- 
hami of the sixteen shares; bnt this transfer was 
never execnted or aeosded to by Richard Needbam. 
On tbe contWT, when he was soon afterwards in- 
fbnned by 'Thomas Riehard Needham, his father, of 
what bad been done, he wholly declined to have any- 
thing to do with tbe shares, beKeving, as he says, 
Muit the company vrsB insolvent. Under these cW- 
eoBMtmees it is pWn that netfaing had been dene 

by Richard Needham vbich could make him liable 
as a confribntOT. It was, htmever, aligned, ttat 
though Richard Needbam. the propoeed transfaee, 
mi^t not be liable, still tbe company had pie- 
dnded itself from treating Midiael Hea^sey as still 
being one of its members; but Ibis is not so; 
Micfasd Henessey, in order to rdieve hinself fiom 
liability, was bound to procure a transferee, niuf 
shoidd pot himself in his phKe. The only transftr 
ever attempted to be made was to Riehwd Need- 
ham, die son, who, it is admitted, never in any 
manner accepted it. The mode of transfer reqaired 
by the deed of settlement is, as we have abeadf 
seen, a transfer to be execnted by the transferee, im 
order to signify his consent, and so to make him- 
self liable as a purchaier. Jill that had beea 
done, tbe seller continues liable to the oea)- 
pany as one of its members. It was said tiisft 
there were lachet in the company in not getting^ 
the transferee to signilV his acceptance or rejeotion,' 
but this is not so. What conld the company do 
more than they did i There was the transfer exe- 
cuted by the seller waiting to be execnted by t^e 
purchaser, if he bad chosen to present himself, bat 
he never did so. It was argued that thie was really 
a purchase by tbe father, and some facts were relief 
on in tbe evidence tending to ^ew that tbe com- 
pany considered and treated the firtber as the poiw 
chaser. This, we think, is not at 8H made ont, bnt 
evcQ if it were, it wonld not vary the case, for it is 
abundantly clear that the tiansfer in tbe bodes was- 
te tbe son and not to tbe fetber ; and the evidenqa- 
clearly shews that tbe father nevw accepted or in- 
tended to accept any of the shares in qnestion^ 
Whether, as between Henessey and the fanier, the 
father might be compelled to accept the idiaies in 
question, is not now before ns. Vice-ChanaeUcr 
Knight Bruce was of opinion that Michael Henessey, 
ae a shareholder, was liable up to the 21st of October, 
1841; that never having made a valid transit, be- 
continued liable after that date, and up to his deatb, 
and so that the name of J. C- Henessey, his execntor, 
was properly placed on the list of contributories. In 
that opinion we entirely concur, and this motioB 
must uierefoie be refii»ea with costs. 

▼z«»«H4.9ieaxiZ«« xarsaxr 

aaportedl>y Oeo.S. A&urvR,BM. of tlM Mlddls Tsaiple, 

Saturday, April 26. 
B* Thc WoBCBSTsa Coum Ei^obakox Compant, 
Joat-tloah Companies Windtng-up Actt—Adtar-' 

iitewtenit qf order fifreftrenee to the Matter. 

In this case an ordorwas made on tbe 16th of N<t- 
vember last, sefsrring it ,to ibe Master to iqqoina 
whether it was expedient or necessary that tbe oanv* 
panr should be dissolved and wound up uudei tbei 
Act (16 Uw T. Itl9>. The Master (Kinderaley) 
having reported that it was expedicBt, the present 
petition was presented, praying the usual order fos 
^e dissolution and windinj( up of the company. 

Sinyihe appeared in support of the petition, and 
stateil tliat the order of reference had not been ad- 
vertised pursuant to the 15th section of the Wind- 
ing-up Act of 1848, which requires tliat tbe date, 
title, and ordering part of every order of tbe Court 
made upon any such petition previously to, and in- 
cluding the order absolute, shall, within twelve days 
after the date thereof, be advertised once in the 
London Gaiettf. The original petition, however, 
hnd been duly advertised, and all the other proceed- 
ings wore regular. The directors had tiled a decla- 
ration of insolvency, upon which the original petition 
was founded, and they had been summoned by the 
Master upon the inquiry before him. The 16th 
section of the Act of 11^49 enacts " that it sliall be 
lawful for tbe Master in such casos, as he thinks fit, 
to dispense with any advertisements reqpircd by tlie 
said \ci to be made of any call, or of any other pro- 
ceedings, by or before thc Master;'' and the Mastei; 
considered that in this case tlie advorti.scment might 
tie dispensed with. 

tagthime, for tbe seoretaiy of tbe oompany. con-, 

The Vici-Chancelu>b said that tbe 16& sectioa 
of tbe Act of 1849 was applicable only to prooeedio^ 
by or beCera tbe Master; but he thought that it 
Master Kinderaley was satisfied that tjie advertise- 
msBt might be dispansed with, be might be. He 
wonld, therefore, make tbe order. 

DicKiN V. Ward. 
Wakd r. Dm: KIN. 
Svidenee — Aeeoumt*. 
A. B. and C. D. had dealiupt and trantaetiont Ha* 
gether, in the eourtt ef which a bmtd far i.OCKH. 
mat given by A. B. to C. B. Both of them ajftar' 
wardt died. E. P. the rtpfettntatioe of C. J>. 
(Me oblig-) filfi a bUi *a e^oree the bamd. 
e. H. the reprnentoHxtef A. B, (the obHgory 
filtd « *m4o'hma tht aase— fa Mwesn A. Mt 

Digitized by 




[YoL 17. — Ifo. 452. 




«ut C. 2>. taien, and thi Umd made tul^eet io 
tuck aeeotmt*, and prmid <m aectnmt in C. D.'i 
itm d wrUing. A decree woe made m ioM tM* 
rfferrimg it to ike Matter io take the aeeounte, 
mud to imnurt tmder ichat cireumtttmeet tie 
ioHdwaigwen, and in the decree the account i* 
C. D.'e ian^ariting wat entered a* read: 
Beld, on exeeptiont to the Mattel' i report, that 
tkii aetomnt wot receivable by the Matter m 
«*iAae*, at well againil at far O. H. the repre. 
lentatite qfA. B. 

This cue came on to be heard upon exceptions to 
the Maatar'i report, under the following eircnm- 
■tenoes :— George Dicida and Stephen DicUn, who 
ware brother*, had ruioiu deilinn together, in tiie 
oonne of wUdi a bond fo^ 4,()00L was given by 
Geone Diddn to Stephen Didon. Georee Diddn 
die^ uaTing E. Uoyd Ward and John Dicldn his 
•zecntor* ; and afterwards Stephen Dickin died in- 
tntete, MM l^ten of administration of his eifeeta 
were granted to his widow, Mary Dicldn. Marr 
INekiB inatito t ed the suit of Dickin v. Ward, 
•■iinst B. L. Ward and J. Dickin, for the pnrpose 
<^ enforcing the bond for 4,000/. against George 
Dickin's estate. SnbsequenU; E. L. Wanl and 
J. Diddn instituted the suit of Ward v. nickm, 
•gdnst Uary Dickin, in order that an account 
micht be taken of the various dealings and trans- 
Mtiona between George Dickin and Stephen Dickin, 
and that the bond might be taken as subject to such 
aoooonts. Ward and J. Dickin proved, in the soit 
of Ward v. Dickin, two accounts in the hand- 
wiitjng of Stephen Dickin, the obligee of the bond. 
Upon the causes coming on to be neard, a decree 
waa made whereby it was referred to the Master to 
take an aoconnt of the dealings and transactions be- 
twaoi Geoige and Stephen Dickin, and to inquire 
«4ietfaer any aoconnts bad been settled between them, 
and when and under what drenmstanoes such ac- 
oonnts ware settled, and under what circumstances 
the bond mentioned in the pleadings had been 
gnaa; with liberty to state drcaqistances specially. 
Zn tiiis decree the two aoconnts in Stephen Dicldn s 
hai^writing, and wliich were marked respectively 
C. and 8. were entered as read. By his report die 
Master stated (among other things) as follows: — 
" The exhibit C, proved in the second mentioned 
eaoie by and on behalf of E. L. Ward and J. 
Diddn, plaindfis in that canse, and defendant In 
the first mentioned cause, is parQy written in ink 
and partlv in pencil, and is wholly in the hand> 
writing of the said intestate, Stephen Dickin, and 
was finmd among his papers by Uie said Mary 
Diddn, and is in the words and figures following, 
tbat is to say (jtetting out the account), and I con- 
Kder tliat the said exMbit C is to be taken a* suffi- 
cient proof between the parties (independently of 
any ouier evidence given in tliese causes) as to the 
accuracy and truth of the several items (herein con- 
tained, except aa hereinafter appears, and as shew- 
ing the deahngs and transactions between them so 
ftr a* the items therein extend." The report also 
contained a similar statement as to the exhibit S. 
and a statement of the excepted items before re- 
ftiredto. To this reports. L. Ward and J. Diddn 
took several exceptions, Ote third of wlileh was in 
the fbiltfwing terms t — 

"The Master has a&owed the said exhibit C as 
■ndi laroof accordingly, and has diarged the estate 
of the said 6. Diofan. in aeeoont with the estate of 
die said 8. DieUn, upon the evidence of the said 
exhibit; whereas the sud Master ought not to have 
aDowed tiie exhibit C as evidence against the expec- 
tants whereon to charge them widi any of the items 
of aooonnt tiierdn appearing." 

The sevenfli exception related to the Master'sie- 
port as to tiie exhibit S. 

jRafMOand Ooodeve, in snpportof theexceptions, 
tailed npoo the case of Haufford v. Randford, 
S EbrSL 212, where it was held that evidence received 
at the hearing of the canse, and entered in die de- 
moo, is not necessarily admimble as against all par- 
tiea on ioqnitias before the Master under the decree. 
Gtasse appeared in support of the Master's report 
The Vicb-Cbancillok sdd, the question was 
not baiiara him whether a document in a dispute be- 
tween tlie two litigants, which was made evidence by 
one of them agmnst the other for one purpose, was 
Ibenfue to be eridenoe between them for all pur- 
woasa. He had nothing to do with anv such ques- 
Von, and. of eooise, m pve no opinion upon it. 
Hie qoenoa here was this :— There were two bn>- 
thera who had vaifams pecuniary dealings and tians- 
•Btions togethw, in the course of whi£ a bond was 
^ren by (me to the other. After the deaths of both, 
thabondwaa,onthebehalf of the estate of the obligee, 
aooght to be enforced according to the letter. "No," 
said the rspreaentative of the obligor, " It can- 
not be enforced acconluigto the letter, because you, 
the obligee, have yoursdf written accounte between 
yoaiself and your brother which shew that an account 
was pending, and therefore the bond cannot be 
tMatsdaaa oond int«ided to be used aooording to 
thelettar." By means of Oat eridenoe, eitber^ane 
crwMiollMVovidanoskthe psnonal laimamtslirea 

of the obligor succeeded in bdng relieved against 
the bond, ss a bond to be taken according to the 
letter, and the accounts between the two estates were 
dircK^ed to be taken on that footini^ That was 
entered on the decree. It was then sMd, when the 
accounte were obtained in this manner, and by these 
means, that the person againrt whom, for the pur- 
pose of obtaining the accounte, this document was 
used, should not be allowed to use it for himsdf. 
He never heard of such a proposition beinf; ad- 
vanced before, and bdieved it to be entirdy without 
foundation. Tlie onestion was, not what was the 
wdght of the evidence, but whetiier it waa to be 
evidence— whether it was to be some eridence of the 
truth of those items, figures, or things mentimed in 
the Bcoonnts. Thetre might be evldenoe against 
them which might destroy every portion of them. 
That was not the question. The question was, 
whetiier the Master was justified in looking at it as 
evidence for, or as between the two, or for each, and 
against eadi. His Honour was of opinion tiist he 
was, and made the following order:— "Declare, as 
lespecto the tiiird and seventh exceptions, that the 
exhibite C. and S. having been made and used at 
the hearing of these causes as evidence on the part 
of the exceptente, and having been entered in the 
decree accordingly, they were, from the nature of 
pleadings and the drcumstances of the case, pro- 
perty recdvable by the Master in evidence, as wdl 
against as for the exceptante, and with tiiat dadara- 
tion ndther allow nor overrule the exceptions." 

Monday, March 17. 
CocKBUur *. GnEiN. 

Practice— Beidenee on elaimt—4ffidavHt by the 

This was a spedal claim, in whidi the minutes of 
an order for r^erenoe to the Master to take oeirtain 
accounts had been apned upon. A question was 
raised as to the mode m which the aiEdavite filed by 
the plaintiff and defendant should be treated in the 

Sheibeare appeared ibr the plaintiC 

Blderton for tiie defiandants. 

The Vici-Chakcbllob said that tl^ affidavito of 
the plaintiff and defendant should be entered as read, 
with a dbection to the Master that the pUintUTs 
affidavit was not to be considered as evidence of the 
matter there stated, except by the oOBseot of the 
defendant, and that the oefeadant's affidavit should 
be treated in all teepeete as if it ware Us answer to 
a bin filed against mm. 

scrip, upon their agreeing to the '•'■^"■■w of tla 
shares. The sum of two gmnsas per share had Ims 
paid by way of &padt upon the allotment of &i 
shaiea. Onthelstof June, 1849, an order for wi^ 
ingnp the company was made. (13 lawT. 2%) 
The official manager earned into the Master's ofiei 
a list of oMitribntoties, arranged in the foDowiai 

7\tiir t it»r, May 1. 
Bxparte Pxsaoa and Btams, reTwt RnwsT, 
Warwick, and WoBOBsran Railwat Cou- 


Joint-Stock O t nu an i et WinJHng-up Act»—Cett»— 

Where a company had boon ordered to be w ound 
up, and HO debit had been tttmbUriud, bmt iio 
Matter htid attowod the eistms ^ ertdUort at 
claimt only, the Matter wot hM io heme jwm- 
diction to make a call npen the eonirHutoriet in 
retpect of the cottt t^ proeetdtny* in and about 
the winding up, although they had not been taxed 
or adjudiaUed by the Court. 

T*e Matter hoeing titled the litt ^contributoriet, 
and divided it into teteral elattm (aac q/* uMah, 
contained thaot teripholdert who, prooioua to the 

order fir win d in f up. had reetbud boot part (^ 
the origin^ dtfOtUfrom the direefon upon the 
ctmeellation tf thefr tharet), made a ctil in sv- 
tpeet of the cottt in and tjiout the win^Ungi t^, 
upon that clatt and amUhar. Amotiambyomtif 
tueh teripholdert to ditehargt Oo Mtttttfi ordtr 
Ar the eiaUwat routed. 

This wu a motion on behalf of Richard Matthias 
Fleece and Tliomaa Henry Bvans, wiwse aaaes ap> 
peered on flie list or dass of oontiibatories No. 6 
jointiy as Messrs. Preeee and Evans, that the order 
or direction of Richard Richards, esq. the Master 
charged with the winding up of the above-mentiaoad 
company, made in this matter on the 28th of Mwah, 
1851, whereby it was ordered that a oaU of 4a. nsr 
share should be made upon all oontiibatatias in Uate 
or dasse* 4 and 6 (being the oontribotories to whom 
ISs. per share was paid or returned), and all sndi 
other contributortes in liste or dasses of condrib*- 
tories numbered 1 and 2 as were not induded in Hste 
or classes 4 and 6, and who had ndther transfgrred 
their shares, nor received or been paid 15s. per 
share; and whereby it was ordered that eadi of 
sndi oontributories on or before Monday, the 
28th day of April. 1851, should pay to the 
official manager of tiiis company at his office. 
No. 4, Sambrook-oourt, Bssinghall-atiee^ in the 
dty of London, such call of 4i. per share on the 
babnce (if any) whidi would be due firom him after 
debiting his account in the oommny's books w^ 
sncfa csll, might be discharged. The Rugby, War- 
wick, and Worcester Railway Company was pro- 
jected in 1845, and in 1846 the project was aban. 
doned. In June, 1846, the direotorsannoanced that 
Oey woaU ntum ISa. per share to the boUsrs of 

" Chm No. 1. — List of centribntories. being ihsn. 
holders, wiio have paid deposit and signed deedi. 

"Class No.2.— List of eontributories, being dafc 

hdden, who have paid deposit, and not signeddeek 

" Claa No. 3.— List of allottaes who have app£ed 

for shares, and to whom they have been allotted, Int 

who have neither paid deposit nor signed deeds. 

" Chus No. 4.— Original allotteca. who had aot 
parted with shares, and delivered them up oa » 
cdving 15s. per share from the Areetors. 

"Cbss No. 5w— OrigiBal allottees win bsd not 
signed, but who have reedved the 15a. 

" Class No. 6.— Tiansferees of sharea, fat wUdi 
tiie original allottaes have signed the deed. 

" Clua No. 7.— IVansferees of shares far «)gek 
the otigina] allottees have not signed the deed. 

" Clsss No. 8.— Persons who have signed tlv tad 
and not reodved back the IS*. 

"Chss No. 9.— Persons who had not sigaed tte 
deed nor received bade the 19a. 

"Class No. 10. — Rroviaonal directon who lisic 
signed the deed, and who paid the deposit 

"Class No. U.— Provisional directon who im 
neither signed the deed nor paid tl>e deposit" 

Messrs. Preeoe and Evans ware atodcbiokci^ mf 
entitled to 680 shares in the company, harinf jat- 
diased the scrip from persons who dther were^ « 
represented parties who were, original allottewititr 
were placed by the Master in dtes* No, 6. ChMt 
No. Sand No. 5 were disallowed ^y the MsriK.mi 
in dass No. 7 no names were inserted. The MmUTk 
on the 28th of March last, made a call of 4i. per 
share on rlsmos No. 4 and No 6, in which wen 
those persons who had reodved the ISs. per shark 
and on rlsnsfs 1 and 2. and it waa this order wkick 
waanowaougbttobeifischarged. The