IRELAND.

of Bevan a solicitor named Carte was appointed solicitor; that the respondent White, acting as his agent, had got the papers from Kelly and paid him a sum of 71. 10s. which the latter claimed as being due to him for drawing the bill of costs; that Carte was only continued one month as the solicitor of Tuthill, when he was changed, and the respondent appointed. The petition stated the delivery of the papers by Kelly to White to have been made without the knowledge or authority of Mrs. Beaven (now Mrs. Worrall). That on the 9th of December, 1850, the petitioners tendered to White the 77. 10s. and served a notice, requiring him to produce the papers for the use of the petitioners in the preparation and on the taxation of the costs, and undertaking to pay such other costs as should be legally due. To this notice no reply was given. The affidavit in reply stated that the papers were got from the plaintiff in the exchequer suit, and not from Mrs. Bevan.

Christian, Q. C. with W. Smith, for the petitioners. The respondent holds these papers in trust for the petitioner, whose agent Kelly was; he had no authority to give them up.

Joshua Clarke and W. Brereton, contrà.-A petition cannot be sustained except in cases in which a bill would lie, and if a plaintiff in a cause hand over the papers to a second solicitor there is no foundation for contending that the first solicitor could maintain a bill for the purpose of getting the papers for the taxation of his costs. [The LORD CHANCELLOR.

Is there any case to shew that the solicitor can withhold deeds and not produce them on the taxation? I admit he need not part with the possession of them.] They cited Molesworth v. Robins, 2 Jon. & C. 370, per Sugden; Keslop v. Metcalf, 3 Myl. & Cr. 159; Rutledge v. Rutledge, 2 Ir. Ex. Rep. 290; Beawes on Costs, 213.

The LORD CHANCELLOR.-If Bevan had even given up the papers to Tuthill I apprehend the latter could not keep them as against his solicitor requiring them for the purpose of taxation; and if Tuthill had given them to the respondent, the latter could not be placed in a better position than Tuthill himself had been. (Furlong v. Howard, 2 Sch. and Lef. 115.) His lien as a solicitor, and his right to oppose the introduction of them for taxation, are different things. W. Smith replied.

IRELAND.

ten days deliver to the petitioners all documents and
papers, &c. which he received from John Kelly, to
enable the petitioners to have their costs prepared
for taxation, and to vouch the same on taxation.
The petitioners' solicitor undertaking to return the
same within ten days after the same shall be taxed.
The 77. 10s. to be set off against the costs of this
petition, and let there be no further costs.

Equity Courts.

ROLLS COURT.
Reported by J. MACAULAY, Esq. of the Inner Temple,
Barrister-at-Law.

Monday, Feb. 25.

POTTER v. Baker.
Annuity for life, or perpetual-Construction.
A testator gave A.B. an annuity of 501. a year,
"for her and her three children," and after her
decease, directed" the money to be paid to each
of them as they attained the age of 21 years, but
if either of them should die, to be paid to the
survivor." The annuity having been held to be a
charge on the testator's real estate, a question
afterwards arose as to its duration as regarded
the three children :

Held, that the gift was a gift of so much money, as
would, if invested, produce an annuity of 50l. a
year, and not a mere annuity of 501. a year
during the lives of the children, and a sum suffi.
cient to produce such an annuity was directed to
be raised out of the real estate.

ROLLS COURT.

to be paid

after her decease directing "the money
to each of them as they attained twenty-one. The
word "money" meant merely the 50%. a-year; that
is, the income, not the corpus, out of which it is
paid; and that it was merely a life annuity of 50%.
They cited Wilson v. Maddison, 2 Y. and C. C. C.
372; Hedges v. Harpur, 9 Beav. 479.

The MASTER of the ROLLS said the case was one in which different persons would probably come to different conclusions, and even those who might come to the same conclusion might do so for different reasons. The testator had made his will in a very informal manner, and though it was not very easy to construe, what he intended was clear. His lordship then commented on the different clauses of the will, and said the whole question here turns on the meaning of the word " money," which it was argued on the one hand was only 501. a year for life, and on the other that it must be held to mean the corpus, or the fund producing the annuity. Now the money was money arising from the sale of the property, and to be invested according to the directions of the will; and, on the whole, his lordship was of opinion that the testator meant the money which he had intended to be invested to produce the annuity.

Monday, March 10.
FRY V. FRY.
Receiver-Action at law-Sheriff-Writ of fi. fa.
-Injunction-Application in a cause by a person
not a party to it.

A receiver was appointed on the application of the plaintiff over some property, after which a fi. fa. was issued against one of the tenants. The sheriff levied and sold, and out of the proceeds reThe question in this case arose upon the construc- tained six months' rent for the landlord only, a tion of the will of the late William Hawkins, dated the 11th of April, 1822, whereby he directed his larger sum being alleged to be due. This sum was claimed by the receiver. The plaintiff claimexecutors, as soon as possible after his decease, to ing to be the landlord, demanded payment of the let his freehold house, called the Red Lion, in Parlia- rent from the sheriff, and on the sheriff not payment-street, Westminster, at their option for 21 or 31 years, "which they might be able in proportion ing it, brought his action on the case against the to get the most money for." He then left to his sheriff to recover it. The sheriff applied to the executors "all the money arising from good-will, Court in the above cause, though no party to it, fixtures, plate, china, glass, and all other effects to compel the plaintiff to discontinue the action, he, the sheriff, consenting to pay the money into producing from his said freehold, and after all his just court. Motion refused with costs. The LORD CHANCELLOR.-I do not know if a bill money into the funds at the best advantage payment into court of the money sought to be redebts were paid, then his executors to put the This was a motion to stay an action at law on was ever filed in such a case as this; but I see no objec- for those whom he should hereafter name.' "covered in the action. It appeared that in the case tion resting on any sufficient ground. It is substan- After making several dispositions, the testator of Newman v. Taylor, which was an action at law, tially for the security of a specific chattel. There is then gave "to Elizabeth Luckhurst, of No. 20, judgment was obtained against James Taylor, a not in this case any remedy arising from the relation Brook-street, Lambeth, 50l. per year, for she and tenant of certain property to which John Fry, the of solicitor and client, nor could any relief be had at her three children, and after her decease the money plaintiff in this cause, claims to be entitled; and on law; whether relief might not be had upon motion in shall be paid to each of them as they attain the age the 29th of August, 1850, a fi. fa. was issued and the cause is another question. It appears that Bevan of one-and-twenty; but if either of them die, to be lodged with the sheriff of Surrey. The sheriff made was the solicitor of a person named Tuthill in a paid to the survivor. In the next place I give all a levy under the writ, and after providing for the cause in the Equity Ex. (a) when the costs were my remaining property to Mary Ann Ballard, what- expenses incurred, paid over the sum of 451. 9s. 6d. incurred; it is the right of the solicitor to secure to ever it might produce either from the rent of the to Newman, the plaintiff at law, retaining 357. the himself the payment of his demand, and here is a house or money in the funds; and she shall remain amount of six months' rent due to the landlord. On fund against which he had a lien, and which was in the house till it is let, and after one year I wish the 26th of October, John Stokes, the receiver in available to him; he dies, and the right of the per- the house to be sold to the best bidder, and the the cause, who had been appointed on an applicasonal representative is identical with the rights of his money to be put in the funds, and Mary Ann Bal- tion to the Court by the plaintiff, John Fry, gave intestate. Tuthill, the plaintiff, then employs the lard to receive the produce of it, and the money the sheriff notice that he claimed the money as respondent, a person named Kelly being then in after her decease to be divided among her four receiver. The plaintiff having also demanded the possession of the papers connected with the cause, children, or any more she may have in my lifetime, rent from the sheriff, and the sheriff not complying, and which were the papers of the first solicitor and share and share alike as they come to the age of brought an action at law against the sheriff to his special property; these papers were transferred twenty-one." The testator died on the 10th January, compel payment; whereupon the sheriff applied to to White; it is not clear through what means he got 1823, leaving Elizabeth Luckhurst and her three this Court in the above cause, to which he was no possession of them, but it is plain, as has been children then surviving. Elizabeth Luckhurst after-party, to compel the plaintiff to discontinue the alleged, they were in the hands of Kelly, and that wards married the plaintiff John Potter, and on the action, he, the sheriff, offering to pay the money into they were got from him on payment of 71. 10s.; but 6th of August, 1848. By indentures of assignment, there is no authority for asserting there was any- of May, 1844, and November, 1849, Henry Scarth thing like mala fides. Kelly, at the time he handed became entitled to the interest of the three children the papers to Carte and White, was the agent of under the will of the testator. A suit had been inBevan, and he held them subject to the same stituted for the administration of the testator's lien Bevan had upon them at the time of estate, and it was declared on appeal reversing the his death. The question then is, what is decision below that the annuities, &c., were, by the the position of a solicitor parting with the papers terms of the will, charged on the testator's freehold in a cause in the absence of any special agreement? estate. A petition was now presented by Henry I asked for such, but no evidence of any agreement Scarth, the purchaser of the shares of the three was shewn between Mrs. Bevan and Carte and children, praying that a sum sufficient to produce an White. It is the case of a solicitor in a cause, hav-annuity of 501. a-year might be raised and paid to ing costs due to him in it, and being changed he him out of the real estate, or secured to him as abandons his lien upon the papers; but it is a dif-directed by the will, and insisting that the anferent thing whether he thereby loses his right to have those papers produced for the purpose of taxation. If Tuthill would be bound at the instance of Mrs. Bevan to produce these papers, and if that right also existed in Mrs. Bevan, it cannot be taken away by any transfer, and that right still remains binding on the papers in the hands of Carte or of White, and the petitioners have no means of making these costs available but by the production of the deeds and papers. The rule appears to me to be, that in the absence of any agreement, there is an implied understanding on the part of the person obtaining 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 that he has any lien; but he says he has no security for the costs due to him. Mr. White's rights are not disturbed by anything that has taken place here. Let Edmund White within (a) This branch of the Court has been abolished, 1 & 14 Vict.

nuity was a perpetual annuity, and not merely an
annuity for the lives of the three children.

contended that the annuity was perpetual, and that
Turner, Selwyn, and Wakefield, for the petitioner,
when the testator had wished to give a mere annuity
for life, as in the case of his daughter Mary Ann
Wiseheart, he had done so in proper terms. Then
the word "money" was used all through the will to
designate corpus and not income; and there was no
reason why it should not do so here. They cited
Robinson v. Hunt, 4 Beav. 450; Stokes v. Heron,
12 Cl. and Fin. 161,3 Ir. Eq. Rep. 163; Yates v. Mad-
dan, 16 Sim. 613; Blewitt v. Roberts, 10 Sim. 491;
1 Cr. and Ph. 274; Rawlings v. Jennings, 13 Ves.
45; Ridgway v. Mankittrick, 1 Dr. & War. 84;
Philipps v. Chamberlaine, 4 Ves. 51.

S. Atkinson for the plaintiff, John Potter.
Lloyd for the trustees of the will.
Roupell and Follett for the residuary legatees, in-
sisted that in the clause giving the annuity of 501. to
Elizabeth Luckhurst and her three children, and

court.

Elderton, for the motion.

brought against the sheriff because he had paid over Turner and Hall, contrà, said the action was 451. 9s. 6d. to Newman, though he had notice from the plaintiff, Mr. Fry, who had got a receiver over the property, that the sum of 115/. was due fo rent, and, moreover, the sheriff had sold valuable manure (which, by the custom of the country, went with the farm) for a few shillings. The action against the sheriff was, then, for unduly and illegally executing the writ. The plaintiff took possession in January, 1850, of the farm, and paid the tenant for the manure, which, therefore, would be his own property, and now a stranger, not a party to the cause, comes and applies to the Court in the cause to recited Rock v. Cook, 2 Ph. 691, as applying to the strain the plaintiff from bringing his action. They present case.

did not apply to this case. If the receiver would withElderton, in reply, said the case of Rock v. Cook draw his notice his client was willing to defend the action at law. It was a hard case, for Mr. Fry, having got a receiver, then brings an action to compel the sheriff to do that which, by obtaining the receiver, he had deprived the sheriff of doing without a contempt of court.

stranger to the cause, and asks to be protected against The MASTER of the ROLLS.-The sheriff is a the receiver, who, being served, does not appear here. It appears the sheriff has not served any body in the cause, but asks to be protected against the receiver, to whom he must pay the money or be guilty of a contempt. I cannot grant the motion, but must refuse it with costs.

ROLLS COURT.

Thursday, Dec. 5.

Re THE NORWICH YARN COMPANY. Jurisdiction under the Winding-up Acts. A claim carried on by a creditor before the Master under an order for winding up a company was by him disallowed, and on appeal, the validity of the debt being questioned, it was held, that the Court had jurisdiction to direct an action at law to try the validity, notwithstanding the powers given to the Court and to the Masters under the Windingup Acts. In this case the East of England Bank were creditors of the Norwich Yarn Company to the amount of 35,7557. 2s. 5d. The Company was established in 1833, and in 1847 ceased to trade. They had kept their accourts first with the Norfolk and Norwich Joint-Stock Bank, and afterwards with the East of England, into which the former had merged. In 1847, they had overdrawn their account to the above amount, and as they had drawn upon the bank in an informal manner, and not strictly in accordance with their partnership deed, an objection was raised as to the validity of the debt before the Master to whom the case had been referred under an order to wind up made in 1849, and the Master was of opinion that the debt ought to be established at law, and he disallowed the claim. From this decision the bank appealed, and the point raised was as to the jurisdiction of the Court under the Windingup Acts to send a case to law, it being contended that the Court was itself bound to decide on the validity of the claim.

ROLLS COURT.

perfectly decided. There are circumstances which induce me to think I ought not to deprive those who resist the claim of that which I conceive to be their right, viz. to have the legal question decided by a legal tribunal. It appears to me, to use the words of Vice-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 particular provisions 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 subject properly belongs, it would be for me to perform, to the best of my ability, the duty cast upon me; and I ought to do so. Now, I have considered the Act of Parliament with this view; but it is nothing more than a proceeding for the administration of assets under particular circumstances, and I am most clearly of opinion that there is nothing in this Act of Parliament to deprive the Court of availing itself of any means by which it can get the assistance necessary to lead to a just and satisfactory conclusion of the case. I think I had it once pressed on me, that the Solicitors' Act was 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 means which the law allows it to get the best assistance it can have. I say nothing about the argument which was urged warmly respecting the inconvenience of handing a thing from one court to another; it is for the Legislature to consider that. I say nothing about that part of the argument, well and warmly urged too, as to sending the suitor from one jurisdiction to another, and there not being a jurisdiction in any one place to have a complete decision of the question, that is also for the Legislature. I believe, if I may be allowed to express a private opinion, that much may be done to lessen the 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 having particular jurisdictions allotted to particular cases, which arise between 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 Parliament, though the legislature has given Walpole for certain shareholders of the company. to the Master jurisdiction and power which he had Turner, for the directors of the company, re-not before, and in this particular case has limited ferred to The German Mining Company, 14 Jur. him to the consent of the parties, it has tied down 874. the Court in the manner contended for; and I cannot agree with the argument as to the Master's acting under the order of reference which proceeds from the Court. I beg leave to say it is a great satisfaction to the Master that the order of reference does proceed from the Court, and that it is the jurisdiction of the Court which is exercised; and when the Master acts on this he acts as assistant to, and in aid of, the Court, and leaves the matter altogether in the discretion of the Court in the proper exercise of its jurisdiction; and I am of opinion that in the exercise of its jurisdiction I have a right to concede to the parties that which they ask, and that which I want for my own assistance, the determination of a Court of Law on the question of debt or no debt in this case. I wish to do it in a way most likely to contribute to complete justice being done between the parties here. If they desire to appeal from the opinion I have now expressed I must do it adversely, that they may not be prevented from having an

Bethell, R. Palmer, and Cole, for the official manager, contended that the Masters had full powers, and were bound to decide on all matters coming before them under the Winding-up Act, which gave them powers that a court of law did not possess. Moreover, the common law right to bring an action was taken away by the 78th section of the 12 & 13 Vict. c. 108, which enacts that no action or suit shall be commenced or proceeded with against the company, but after proof of debt. It was therefore necessary to have a decision in this court first. They cited Thompson v. The Universal Salvage Company,

3 Ex. 10.

Roupell and Burk for the official managers of the Yarn Company.

V. C. KNICHT BRUCE'S COURT.

Bowser became bankrupt. A bill was filed by the executors of Charles Gore against Bowser, and his assignees, and afterwards a supplemental bill was filed against Harris, and it was charged, among other things, that the sum proposed to be paid to Mr. Harris would very nearly exhaust the produce of the property; that Harris had no lien, and that he had acted improperly with reference to the preparation of the deed; and the bill prayed that the deed might be declared void, and that Mr. Harris might pay the costs of the suit. By his answer, Mr. Harris submitted that the creditors who had executed the deed ought to be made parties; and upon this objection the cause was set down.

Russell and Speed, for Mr. Harris, cited, in support of the objection, Newton v. Lord Egmont, 4 Sim. 585; 5 Sim. 130; Powell v. Wright, 7 Bea. 444; and Smart v. Bradstock, 7 Bea. 500.

Swanston and Moxon, for the plaintiffs, contended that the creditors were sufficiently represented by Bowser and his assignees, and that Harris, though not strictly a creditor, was interested in supporting the deed. Besides this, the large interest which Harris took under the deed rendered it to be the interest of the creditors that the deed should be set aside.

The VICE-CHANCELLOR said that this was a bill to set aside 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 consideration in this respect, as he had not executed the deed as a creditor. He thought that the creditors, or some or one of them, ought to be parties or a party to the suit, though he did not say how many. He could conceive a case in which one creditor would be better than any other number. The creditors must, however, be substantially represented. On principle, and on authority, he considered that in a case like 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.

Nov. 12 and 13, 1850.
ATTORNEY-GENERAL v. THE GREAT NORTHERN
RAILWAY COMPANY.

Injunction-Sequestration.

An injunction was granted against a railway company when their railway was in course of formation to restrain them from further interfering with a certain road, and from constructing the works of their railway, whereby the road should be obstructed, impeded, or rendered less secure, &c. or whereby carriages or passengers should be hindered or prevented from passing, &c. The company afterwards laid their permanent rails over this road on the level, and by the direction of the Railway Commissioners erected gates across the road for greater security, and with the sanction of the Commissioners opened the line for public traffic:

The MASTER of the ROLLS.-If it was my bounden duty, as is alleged, to give my opinion on the question of law raised in this case, I must take some time to consider of it; but if, as I think,-and my opinion is not altered by the very ingenious argument put to me-it is my duty, and it is within my province to obtain the assistance of a court of law for the determination of the legal question which is in issue between these parties, there is no reason why I should now abstain from giving my opinion. In the administration of assets by this Court among legal creditors where the debt appears to the Court to be clearly due, to be founded on fact satisfactorily proved, and upon legal principles fully recognised and established, it is by no means necessary, nor is it the practice or duty of this Court, to send the creditor to prove his debt at law. The Court, having the case properly before it, properly under its consideration in the administration of assets, and having, as I think there can be no doubt, jurisdiction to appeal. determine the question of debt or no debt, does so without unnecessarily putting the parties to the additional expense of a trial at law, and in this way debts to a vast amount, far exceeding the notion entertained on the subject by those who have not given Reported by GEO. 8. ALLNUTT, Esq. of the Middle Temple, the end of Sun-street, in the same town, being part

themselves the trouble to obtain the necessary information, are constantly being proved, and being satisfied without the parties ever being sent to a court of law on the subject. But if the suit in which the proceedings take place depends wholly for its validity on the legal question of debt or no debt, and the parties interested to resist the claim desire that the matter should be tried at law, I think I scarcely recollect an instance in which the Court has refused it; and if the question of debt or no debt against the estate or party sought to be charged depends upon a number of circumstances, some of them of a complicated nature, and affected by the usages of tradeaffected by the powers which may or may not be legally incident to trading partnerships particularly or peculiarly constituted; and, moreover, if the ultimate result depends upon the decision of several questions involving points of law, some of them not well settled, I conceive that although the validity of the whole proceeding does not depend on the particular claim, yet if those interested in resisting the claim desire to have the question tried at law, this Court ought not to deprive them of their prima facie right to have the question so decided. Now, upon the consideration of the present case, I am clearly of opinion that there are points of intricacy, questions of nicety in point of law, questions which to me, at least, on the consideration of the questions that have been decided, do not appear to have been

VICE-CHANCELLOR KNIGHT
BRUCE'S COURT.

Barrister-at-Law.

Tuesday, Nov. 12, 1850.

GORE V. HARRIS.
Parties-Creditors.

Held, that the company had broken the injunction; and the Court directed a sequestration to issue against them, and refused to suspend the issuing of the process until an appeal from the order for a sequestration had been heard.

This suit was instituted upon the relation of Mr. Chapman, a solicitor at Biggleswade (see ante, 15 Law T. 362), and an injunction was granted on the 2nd of May, to restrain the company," their agents, workmen, and servants, from further interfering with the turnpike road leading from the entrance of the London road, at the south-eastern side of the town of Biggleswade, along a road called Crab-lane, to

of the high road from London to York, and from constructing the works of the Great Northern Railway whereby the same road should be obstructed, impeded, or rendered less secure or safe for the passing and repassing of carriages and passengers An assignment was made by W. S. for the benefit thereon than the same was when first interfered with of his creditors, but by the deed provision was by the company, or whereby carriages or passengers made for the payment of a lien of H. One should be hindered or prevented from passing and trustee died, and the other (J. B.) became bank-repassing in the same way as they had been able to rupt. A creditor of W. S. filed a bill against J. B. his assignees, and H. to set aside the deed: Bacon and J. T. Hamilton Humphreys moved Held, that it was necessary that one or more of the for a sequestration against the company for a breach creditors who had executed the deed was or were of this injunction, the company having laid their a necessary party or necessary parties to the permanent rails over the road on the level, erected suit. gates across the road, and opened their railway for public traffic.

By a deed dated the 20th of April, 1841, and made between William Saunders, of the first part, Charles Gore and John Bowser, stated to be two of the creditors of William Saunders, of the second part, and all the other creditors of William Saunders who should execute the deed, of the third part, William Saunders assigned and conveyed all his property to Charles Gore and John Bowser, upon trust to convert the same into money, and then first to pay Mr. Harris a sum of money in respect of a lien on some part of the property, and afterwards to divide the residue rateably among the creditors. The said Charles Gore, who was a creditor, never executed the deed, and died on the 21st of April, 1841. John

do theretofore."

Wigram, Malins, and Denison appeared for the company, and contended that there had been no breach of the injunction. The company had applied to the railway commissioners for their certificate as required by the Act of Parliament, and in the meantime they had taken the best steps in their power to prevent the danger apprehended from the railway crossing this road on the level. The injunction referred only to such an obstruction as would render the road impassable or dangerous to the public. The railway commissioners had required, for the safety of the public, the erection of the gates across the road which were now complained of. The com

V. C. KNIGHT BRUCE'S COURT.

V. C. KNICHT BRUCE'S COURT. missioners of the roads had concurred in the acts of seemed to him to have no place. The injunction the company, and Mr. Chapman was almost the only prohibited not merely obstruction of any particular person who complained of what had been done. kind, not obstruction with any particular object Tuesday, Nov. 12.-The VICE-CHANCELLOR merely, but obstruction and impediment. A man said that the motion on the part of the informant had a right of way; his neighbour obstructed it and plaintiff which he had to dispose of in the pre- wrongfully, and this for a purpose declared, and in a sent case was made on two notices, one dated the particular manner, the purpose and manner being 31st of July last, and the other dated on the 29th of as to the person entitled to the right of way of October following, and asked that a sequestration secondary or immaterial consideration, the mere might issue against the company on the ground of obstruction being that about which he cared, and alleged contempt. The first question raised by it was concerned, not because it was with this view or was, whether a breach of the injunction granted in that, or in one form or another, but because it was the cause in May last had been wilfully committed by an obstruction. Thereupon he obtained an injuncthem; as to which it might be at once stated to be tion, not against an obstruction actuated or shaped perfectly clear that, if the injunction had been thus or thus, but against obstruction. Upon this the broken by them, it had been broken wilfully-that aggressor, finding it convenient to interfere illegally is to say, with direct and full notice of it and in dis- with the right of way for some other purposes, to regard-perhaps it might be said in defiance-of obstruct it wrongfully for some other object, and to the plaintiff's warnings and remonstrances. That create a wrongful obstruction in a new shape, did it, both on the 29th of October and on the 31st of July and then insisted that, by the change of shape and last the company by their agents or servants were purpose, he was clear of the injunction. This was obstructing or impeding the turnpike-road called an attempted view of the law which was not wholly Crab-lane, and if not rendering it less secure or perhaps new; but whether new or old, was one safe for the passing and repassing of carriages and which certainly his Honour must decline adopting. passengers on it than it was when first interfered With respect to the Railway Commissioners, he with by the company, were at least hindering or pre- assumed that they sanctioned the opening of the venting carriages or passengers from passing and railway in August for public use, and did so upon repassing in the same manner as they had theretofore the condition that the defendants should erect the been able to pass and repass was a matter free from gates already mentioned. But if the Commissioners doubt, and a continuance of the same course ever since could, by any order or act of theirs, have rendered might be inferred. But, nevertheless, the defendants the defendants' present use of the turnpike road, or had contended that the injunction had not been mode of dealing with it, fawful, against the rights or broken, their grounds for that contention being, that, interests which it was the object of this suit to as they said, the injunction was not mandatory, as protect, they had not been proved to have done distinguished from what was merely prohibitory,- so, or to have professed or intended to do so. that their rails, laid, in fact, on the turnpike road in His impression was, that the case before him was question, and crossing it, were so laid, and did cross not in the least degree affected by any thing that it when the injunction was granted, and before that, they appeared to have done. Giving no opinion, whatever might be the state of things when notice of therefore, as to the extent of their powers, he the motion on which the injunction was granted was thought that the part of the case concerning them given; and that the actual interference and intended might be dismissed from consideration. It appeared dealing with the turnpike road, which the informa- plain to him that the company had broken the intion and bill attributed to the company, were junction in letter and in spirit; that they had done different in purpose, different in object, different in so contemptuously, and that they must be taken as manner, from any actual or intended dealing with it, still pursuing the same course. Then came the which the informant and plaintiff alleged to be in question what, if any thing, the Court ought to do breach of the injunction. The defendants relied in consequence, because it did not necessarily follow also on certain proceedings by and before the Rail- that the process asked must issue. It was upon the way Commissioners, who were represented to have defendants, however, to make a case to exempt directed or sanctioned the erection of certain gates them from it; and, perhaps, if they had shewn their complained of, which gates, it had been said, were proceedings not to be plainly and clearly illegal-he essential or material for the protection of the lives meant illegal, independently of any question of conand limbs of men and cattle, as the railway in its tempt-or had satisfied the Court that the injunction actual state, whether by right or wrong, crossed the ought not to have been granted at all, or ought to turnpike-road on a level. Whether the injunction be dissolved, discharged, or put into a shape more in substance and effect contained anything manda- favourable to them than it was, or had stated that tory as distinguished from what was prohibitory they had appealed from it, or from the order granting merely, he did not think it necessary to decide, and it, or intended to do so, he might have declined or he declined stating any opinion; nor need he say delayed allowing the process to go. But none of whether the informant and plaintiff was entitled, on these things had they done. On the contrary, his this motion, to refer to the state of things which ex- belief was strengthened of the utter impropriety, isted when the notice of motion was given upon without any reference to the injunction or this suit, which the injunction was granted, as distinguished of the acts alleged to be also a contempt of this from the state of things existing when it was actually Court. His opinion was more fixed that the ingranted; for when it was granted the rails were, as junction, instead of going too far, did not go far his Honour understood the facts, used only for pur- enough, and that it was one of which the company poses connected with the construction of the railway could not justly complain. Considering their conand not for the conveyance of passengers or goods, duct to be at once contemptuous and otherwise not for what, in the language of the business, was illegal-to be wrongful as against the plaintiff indicalled "traffic;" but the railway having been opened vidually-wrongful as against her Majesty's subjects for public use in August of the present year, the at large, and, indeed, a bad-he had almost said company had since employed the rails in question scandalous example, whatever amount of inconfor purposes exceeding, and in a sense differing venience might result from acting against the comfrom, those for which they previously employed them; and it was, he thought, clear that obstruction or impediment to the free use of the turnpike-road was thus caused to a greater extent-an extent materially greater than at the time of granting the injunction, and, in a sense, differently, and this independently of the gates,--that was to say, as the case would be, even if those gates were removed. But the gates, however necessary 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 him, in the sense in which plainly the words "obstructed," "impeded," and "hindered," were used in the injunction, obstruct the turnpike road in question,-did create, in the clearest and most direct manner, such an impediment and hindrance as the injunction, whichever way considered, had plainly forbidden; and those gates, at least, were certainly within the cognizance of the Court on the present occasion, and would be so were the motion of the 29th 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 be stopped, inasmuch as it was passing illegally across a road, the rights over which it was the office of this suit to protect. With respect to the argument grounded on the language of the information and bill, it might possibly, though it did not in his opinion, furnish a reason for varying the injunction; but upon the question whether the injunction had been broken, it

V. C. KNICHT BRUCE'S COURT. quence of a breach of that injunction. He had not heard any arguments that induced him, as far as his judgment was concerned, to doubt the propriety of that injunction. The real question appeared to him to be one to which he addressed himself in disposing of the matter as to the breach of the injunction; and the argument to which he had adverted was this: a right of way was the subject of wrongful interference and unlawful obstruction, and thereupon a Court of Equity interfered by injunction to restrain obstruction, not obstruction of any particular kind, for that would make aggression and litigation endless; but obstruction, upon which the aggressor changed his course, and addressed himself to an obstruction equally wrong, equally lawless, and said that he was entitled to do what he had done, and that the injunction ought to be varied in order to be placed in a shape which should protect the plaintiff only from one mode of obstruction, leaving the defendants at liberty to exercise an endless variety of oppression. To that argument his Honour declined to accede. He was of opinion that the injunction had most plainly been broken. He had heard everything that ability could urge, he believed, in support of the present motion for delaying the issue of the process of sequestration; he had heard nothing in favour of it. If it was done it must be done by some other jurisdiction than his. He thought this a case in which not merely the public interest, represented by the Attorney-General on this record, not merely the private interest of the plaintiff, but the interests of all the Queen's subjects at large, were concerned. It was a matter in which, in his opinion, the open course of justice was defied. There was no reason for the Court's interference, in his judgment, whatever might be the amount of inconvenience sustained by the company. As the informant and plaintiff was willing to undertake that the process should not be executed for ten days, he should refuse this motion with costs.

Tuesday, April 1.

Ex parte HAMER, re THE ST. GEORGE STEAM.
PACKET COMPANY.

Joint-stock Companies Winding-up Acts-
Contributory.

A., the holder of some shares in a joint stock com-
pany, by his will, devised his real estate to B.,
and made C. his executor, and died in 1838. C.,
for some years after A.'s death, received the
dividends on the shares. The company was or-
dered to be wound up, and C.'s name was put on
the list of contributories. It having been repre-
sented by C. that A.'s personal estate had been
duly administered, the Master put B.'s name on
the list of contributories as the devisee of A. It
was admitted that all the debts due from the com-
pany at the time of A.'s death had been duly paid
in a regular manner out of the assets of the com-
Held, that B., as devisee, was not liable as a con-
tributory.

pany:

James Hamer was a holder of twenty-five shares in the above-mentioned company. By the deed of settlement of the company, dated December 20, 1833, it was declared that the company should continue for ninety-nine years, and that the shareholders should be entitled to the profits, and liable to the losses, in proportion to their shares. James Hamer, by his will, gave and devised all his real estate to his wife for her life, and, after her death, unto his daughter, the wife of Joshua Rawdon, her heirs, and pany on this occasion, he thought it right to deal assigns for ever; with a direction that his daughter, with them according to their merits. The conse- her heirs, and assigns, should, after the decease of quence might possibly be to stop the railway. He his wife, pay one-half of the profits thereof to his son answered again, that it ought to be stopped, for it James Hamer during his life. The testator appointed passed where it did, by wrong. The directors of the his wife and daughter his executrixes. The testator died company, their agents and servants, could not on in October, 1838, and his will was proved by his executhis motion be committed to prison; but what could trixes. For some years after the death of the testator be done, should by him be done, to repress this Mrs. Hamer received the dividends declared on the daring invasion of public and private rights-an in- shares. The names of Mrs. Hamer and Mr. and Mrs. vasion maintained, moreover, in open defiance of Rawdon were put on the list of contributories by the all law, authority, and order. The sequestration | Master charged with the winding up of the company must issue.

as the personal representatives of Mr. Hamer, the Wednesday, Nov. 13.- Wigram, Malins, and testator. Mrs. Hamer died in April 1850, and in Denison, on behalf of the company, moved that the August in that year an affidavit was filed by Mr. proceedings under the order of sequestration might and Mrs. Rawdon, shewing that the personal estate be suspended until the appeal from that order, notice of the testator, Mr. Hamer, had been exhausted. of which had been given, should be disposed of. The The Master having placed the names of Mr. and issuing of the sequestration would be attended by Mrs. Rawdon and Mr. James Hamer, the son, on very great inconvenience to the public, and possibly the list of contributories as the devisees of the testathe Court of Appeal might take a different view from tor, this was a motion by way of appeal from his that of his Honour. They referred to the 53rd decision. It was admitted by the official manager section of the Lands Clauses Consolidation Act, and that there was not then due any debt of the company cited the case of the Manchester and Sheffield Rail- which was due at the death of the testator, and that way Company, where an order for a sequestration all the liabilities, in respect whereof contributions had been suspended. were then sought, had been incurred by the company after the decease of the testator.

The VICE-CHANCELLOR (without calling on Walker, Bacon, and J. T. H. Humphreys, who appeared for the informant and plaintiff) said that the injunction in question was granted after argument in May last, and had never been sought to be discharged or varied until after the making of an order in November for process of contempt in conse

referred to 3 Wm. & Mary, c. 14, and cited Wilson Malins and Humphreys, in support of the motion, v. Hubley, 7 East, 128; and Farley v. Briant, 3 Ad. & Ell. 839, which were cases under that statute, and also referred to the statutes 1 Wm. 4, c. 47, and the 3 & 4 Wm. 4, c. 104.

A surviving trustee of a settlement paid into court under the Trustee Act, a sum of 1661. 198. 11d. which was the produce of one-eighth part of a sum of stock, which stock, on the death of A. B. was divisible amongst certain parties, to one-v. eighth of which the plaintiff's wife was entitled: Semble, that this would have been a breach of trust on the part of the trustee if the parties had The VICE-CHANCELLOR said, he thought with not given him an authority, express or implied, Lord Langdale that although much mischief might to sell the stock. The trustee had not paid into possibly ensue from the Act, yet that a trustee was court a small sum of 11. 7s. being the one-eighth entitled to come in under the Act, and pay any trust of a dividend in the stock to which plaintiff was fund into Court. He said, in the present case, no also entitled: doubt the plaintiffs were entitled, unless the surviving Held, that although trustees were bound to pay into trustee had done some act to discharge himself. The court the whole of the trust fund, yet, as the reten- defendant says he discharged himself by selling out tion of this small sum was not made the ground of the stock and paying in the share of the proceeds complaint against the trustee, nor was the ques-under the Act of Parliament, but he was clearly not tion raised by the bill, the plaintiff's bill must be justified in converting the stock into money, unless he was authorised by the correspondence. Now, if in the correspondence there is such authority, the plaintiff must fail in his claim; and if no authority there was great force in the argument that a trustee must pay in the fund itself, and not a part. He said he would read the pleadings and correspondence, and defer his judgment.

This was a bill filed to have it declared that the defendant Cobb, the surviving trustee of a marriage settlement, was bound to replace a sum of 1877. 10s. 31. per cents. (being the plaintiff's wife's one-eighth share of a sum of 1,5007. like stock) sold out by him, and to pay the share of the dividends due; that it might be decreed that he should replace that amount of stock, and transfer that stock when purchased to the plaintiffs, and that the trustee might pay the costs. On the death of one Charles Dixon, in October 1848, the sum of 1,500. stock became divisible and transferable in one-eighth shares, to one of which the plaintiff and his wife were entitled. This sum of stock was a portion of a still larger sum subject to the trusts of the settlement. A good deal of correspondence took place after the death of Dixon as to the best mode of satisfying all parties interested under the settlement, and a letter was written by the plaintiffs' solicitor (who was also beneficially interested in the trust funds) to one of the defendants, a surviving executor of Mrs.

QUEEN'S BENCH.

objection is founded, we are of opinion that no rule
ought to be granted. However unreasonable the
objection may be, and whatever facility to fraud
might arise from giving effect to it, still it must
prevail if the bill be not accepted substantially as
the Legislature has directed. Although there are
no words of nullification, the meaning of the enact-
ment must be taken to be that companies of the
description therein mentioned shall only be liable as
acceptors of a bill of exchange where the bill has
been accepted by and in the names of two directors
of the company on whose behalf it is accepted, and
expressing that it is accepted by them on behalf of
such 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 face of the
bill. According to Dr. Johnson, the meaning of the
words" to express " is, to represent in words; to
exhibit by language; 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 are drawn on the company by its
corporate name; they are sealed with the corporate
seal, having the corporate name of the company cir-
cumscribed; and they are countersigned by the
secretary of the company, who so describes himself.
Then the two directors write on the bill "accepted,'
sign their names under that word, and add " Di-
rectors of Cameron's Coalbrook Steam Coal
and Swansea and Loughor Railway Company,
appointed to accept this bill. Can there be
any reasonable doubt 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? Unquestionably by
the company who are the drawers. Do not the
directors represent that they act under that appoint-
ment? Is not this a representation by them that the
bill is accepted by them on behalf of the company?
We should not have considered it necessary to say so
much on this subject had we not been informed that
another Court, in a similar case, had granted a rule
to shew cause why the verdict should not be set
aside. We entertain the most sincere respect for
the doubts of that Court, but none of us entertaining
any doubt ourselves, we think we cannot with pro-
priety grant a rule which might, for a considerable
time, prevent the plaintiff from enforcing payment of
a just demand.
Rule refused.

HAY V. AYLING.
Bill of exchange-Illegal consideration-Pleading

-Evidence.
To a count on a bill of exchange in an action by
maker against acceptor, the defendant pleaded in
substance that he had lost 1001. to A. by betting
on a horse-race, and that the bill of exchange
declared on was afterwards, at the request of A.
given and accepted by the defendant in considera.
tion of the said sum of 1001. so won, and to secure
the payment thereof, and that the plaintiff lost
the bill with notice. The evidence was that the
bill was given in renewal of a former one, dis-
honoured at maturity, which had been given in
consideration of the lost bet :

by the defendant in consideration of the said sum of alleged agreement, and the evidence was, that the
1007. so won by betting as aforesaid, and to secure defendant having lost the money at hazard, accepted
the payment thereof, contrary to the form of the and gave him a bill of exchange for the amount on
statute in such case made, and there never was any the 23rd of July, 1833, and alleged that he indorsed
other value or consideration for the acceptance the bill to Knight; that in the month of December
of the said bills, or of either of them, &c.; following, the defendant requested him to take a
and the plaintiff, before and at the several promissory note at six months' date as a satisfac.
times when he made the said several bills, and when tion for and in substitution of the bill. The
the defendant accepted the same, had notice of the promissory note on which the action was brought
premises in this plea aforesaid, and took the said was made and delivered to him, and Knight
bills of the defendant with such notice; and the indorsed the note to the plaintiff. Lord Chief Justice
defendant further says, that the account in the last Tindal, with the other judges of the C.P. very
count mentioned was afterwards, to wit, &c. properly held the plea not proved, for the note had
stated of and concerning the moneys alleged to be not been made in pursuance of the agreement stated
due on the said bills of exchange in the said first in the plea, but in pursuance of another agreement
and second counts respectively mentioned, and of between the parties. In the present case, however,
or concerning no other money or cause; and the the plea, after stating the loss of 1007. goes on to
said sum of money in the last count mentioned allege that the two bills of exchange on which the
was and is the amount of the said several bills, and action is brought were given and accepted by the
no other money.-Verification.
defendant in consideration of the said sum of 1001. so
Replication.-De injuria.
lost by betting as aforesaid, and to secure the pay.
At the trial, before Erle, J. in Hilary Term, 1850, ment thereof; the replication de injuriá puts that
it was proved for the defendant that the defendant in issue, but this allegation was proved; the bills
lost 1007. to J. D. M. A. by betting against the horse were given in consideration of the 1007. so lost by
called Surplice, at the Derby Stakes, in the year betting, and secured to the plaintiff by them. This
1848; that at the request of J. D. M. A. and in pay-was, at all events, part of the consideration. The
ment of the bet of 1001. so lost, the defendant ac- plea adds that there was no other consideration for
cepted a bill of 1001. at a month, drawn upon him by the acceptancy; but this is an unnecessary allegation,
the plaintiff; that the bill was dishonoured; and not requiring to be proved; and if we are to understand
that afterwards the plaintiff drew upon the defendant, they were given on the first bill of 100/. likewise as a con-
and the defendant accepted the bills declared as in sideration for the acceptance, the plea is not disproved,
renewal of the dishonoured bill. Thereupon it was and becomes a bar to the action, as the bills on which
objected, on behalf of the plaintiff, that the plea was the action is brought are nullified if any part of the
not proved, inasmuch as the bills appeared to have consideration was illegal. As the law now stands,
been given, not in consideration of the bet lost, but the illegality of the consideration would be no answer
of the bill that had not been honoured; and that, to to a holder for a bona fide consideration, but the
admit the defence, the plea should have set out the plea goes on to allege, what was distinctly proved,
facts relative to the intermediate bill (Boulter v. that the plaintiff, before and at the several times
Coghlan, 1 Bin. N. C. 696). The learned judge when the payments were made and accepted, had
overruled the objections, reserving leave to the plain notice of the premises aforesaid, and took the said
tiff to move, if necessary, that a verdict be entered bills from the defendant with the said notice. We
for him; and to the defendant to amend, if neces- have therefore come to the conclusion, that in this
sary; and he left it to the jury to say whether the case there is neither deficiency of proof nor variance,
bills declared on had been made in consideration of and the application to amend the plea is unneces
the bet. Verdict was found for the defendant; and, sary. An exception was taken to the validity of the
subsequently, a rule nisi was obtained for entering a plea, on the ground that the statute 8 & 9 Vict.
verdict for the defendant, pursuant to leave, or, if c. 109, does not expressly avoid securities given for
necessary, for judgment non obstante veredicto, on gaming debts. But the statute 5 & 6 Wm. 4, c. 41,
the ground that the 8 & 9 Vict. c. 109, does not ex- s. 1, does enact such security shall be deemed to
pressly avoid securities given for a gaming debt. have been made for an illegal consideration, and
Against the rule cause was now shewn by
thereupon void, except in the hands of a bond fide
holder for value. Therefore, the rule must be dis-
charged.
Rule discharged.

M. Chambers, Q.C. and Keene.-The 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 other side that, because the bills de-
clared on were given after the 1007. bill had been
dishonoured, they were given in consideration of
that bill only; but if they were given in considera-
tion of the bet and of that bill, and that was shewn,
the plea was proved. It is clear, on the evidence,
that they may have been so given; the verdict shews
that in the opinion of the jury they were so given.
The case of Boulter v. Coghlan does not apply.
The issue there was whether the note had been given
in pursuance of a certain specific agreement, and it
was clear that it was not. The question in this case
was whether the lost bet was a consideration that
Held, that there was no variance, and that, notwith-moved the defendant to accept these bills. That
standing the omission from the plea of any mention
of the intermediate bill, the defendant was entitled
to a verdict if the jury thought that the bet was
a consideration that moved the defendant to ac-
cept the bill declared on.

Assumpsit. The declaration contained three counts: the first on a bill of exchange for 501. at four months after date, drawn by the plaintiff and accepted by the defendant; the second, on a like bill for 50%. at six months; the third, on an account stated.

Saturday, Feb. 22. ELLIOTT V. CLAYTON. Uncertificated Bankrupt-Personal labour of a medical practitioner. A general medical practitioner, being an uncertificated bankrupt, but, by the assistance of friends, enabled to obtain medicines on credit, and so to continue carrying on his business, cannot recover for his attendances and medicine, if his assignees interfere, and require payment to be made to

them.

Debt.-The declaration stated, that the defendant, on the 28th day of January, A.D. 1850, was indebted to the plaintiff in 237. 3s. 6d. for the work, care, case was before the 5 & 6 Wm. 4, c. 41; and under diligence, and attendance of the plaintiff by him the statute of Anne a note given for a gaming con- before that time performed and bestowed as a sideration was absolutely void, even in the hands of surgeon and apothecary for the said defendant, and an innocent holder. At present notice of the tainted at his request, in and about the healing and curing origin must concur with the taint to avoid a bill the defendant and divers other persons of divers given for a gaming consideration; and, therefore, diseases, &c.; and also for divers medicines and the Court will not either require that intermediate other necessary things by the plaintiff before that transactions be fully set out, or be liberal in allow-time found and provided, administered, delivered, ing amendment. [The rest of the argument is and applied on those occasions for the defendant, rendered unnecessary by the judgment.] and at his request; and for money found to be due from the defendant to the plaintiff on an account then stated between them.

JUDGMENT.

Cur, adv. vult.

Watson, Q.C. and James, Q.C. contrà.-The case Third plea.-That before the acceptance of the of Boulter v. Coghlan was well decided, and applies several bills in the first and second counts men- to this. The illegality relied on must be traced in tioned, or either of them, and before stating the the plea from its origin to the title of the plaintiff. account in the last count mentioned, to wit, That the transaction set out in the plea, and proved certain persons whose names respectively are in evidence, is practically one and the same, is not to the defendant wholly unknown, were about enough. (David v. Preece, 13 L. J. Q.B. 88.) The to game at a certain game, to wit, a game of plaintiff ought not to be called on to defend the horse-racing, that is to say, by racing divers horses, purity of a bill which the plea does not mention. to wit, a horse named Surplice, and divers other [The rest of the argument is unnecessary.] horses, and the defendant then betted 1007. against 107. with J. D. M. A. that one of the persons, C. who was about to game the said game with the said Lord CAMPBELL, C.J.-We are of opinion the horse named Surplice, would not win the said game verdict for the defendant on the last plea ought not with the said horse; and the said J. D. M. A. then to be disturbed, as all the material allegations in betted 101. against 1007. with the said defendant, this plea were proved. The plaintiff's counsel rested that the said person would win the said game with their objection on the authority of Boulter v. the said horse named Surplice, and the said game Coghlan, 1 Scott, 588. We entirely approve of that was afterwards and before, &c. to wit, &c. gamed, decision. There the plea, after stating the loss of and the said person then won the said game with the money at play, went on to allege, "the said the said horse named Surplice, and the said money being so lost it was agreed between the parties J. D. M. A. then, by betting on the side of the said the payment thereof should be secured by the properson, then won of the defendant the said sum of missory note of the defendant, to be by him made;" 1007. so betted as aforesaid; and the said bills of and in pursuance of that agreement the defendant exchange, in the first and second counts respectively made the promissory note on which the action was mentioned, were afterwards, to wit, on, &c. at the brought. The replication denied that the promissory request of the said J. D. M. A. given and accepted note was made by the defendant in pursuance of the

4th Plea.-As to the residue of the debt in the declaration mentioned, that heretofore and after the passing of the said Act of Parliament hereinbefore in the second plea mentioned, to wit, on the said 31st day of November, A.D. 1845, hereinbefore in the second plea mentioned, the plaintiff was a surgeon and apothecary, trader, dealer, and chapman, and a trader within and subject to the statutes then in force concerning bankrupts; and that the plaintiff, before the accruing of the said residue of the debt in the declaration mentioned, duly filed the said declaration in writing hereinbefore in the second plea mentioned in manner and form as in the said second plea is alleged; and that thereupon, and before the accruing of the said residue of the debt in the declaration mentioned, the plaintiff became and was a bankrupt [setting out the proceedings, &c. in bankruptcy]; and that after the commencement of the said suit, and after the accruing of the said residue of the debt in the declaration mentioned, to wit, on, &c. the said Joseph Callow, as such surviving assignee as aforesaid, required the defendant to pay to him the said residue of the debt in the declaration mentioned.

Replication to the fourth plea. That the