851.] AUGUST 23, 1851. V. C. LORD CRANWORTH'S COURT. THE LAW TIMES. V. C. LORD CRANWORTH'S COURT. V. C. TURNER'S COURT. VICE-CHANCELLOR TURNER'S COURT. Reported by J. HENRY COOKE, Esq. Barrister-at-Law. Wednesday, August 6. tion-Particulars-Conditions of sale-Excess and deficiency of acreage. Special case-Vendor and purchaser-Compensa case restraining might terminate it by giving three years' notice, the Court putting the propriety of the injunction, whether if this proposed agreement or any similar it was agreed that for all time afterwards and the decision on the demurrer at all in conflict, agreement should be entered into, the plaintiffs may to exclude them, the plainthe party receiving the notice shall be at liberty, on the one with the other. Not having the affidavits not be entitled to an injunction restraining the certain stipulated terms to use the railway of the before me in that case, I do not know what there defendants, or rather in that party giving the notice, for that does seem to me to was to shew any countervailing inconvenience that the North-Western Company, from so acting under be quasi a lease of it for ever, or at least something would result from issuing the injunction. Probably that agreement as like it, but even on that I give not the least opinion there was none; and if so, it would be true that as tiffs, from the Shrewsbury and Birmingham line or whether that is a legal objection or not. I certainly a matter of course, when I once determine that here from conducting the through traffic according to the do not feel myself called on to decide, or competent is a bill for the specific performance of an agree- terms of that contract. My refusing this injunction to decide, that that is so entirely a frivolous and ment, and the party, it is said, is going to enter into does not at all prejudice that question, and I think ridiculous objection, that I shall treat it as being a contract that will embarrass me in my litigation, I should be very much embarrassed in the case if I utterly worthless, and act against the party just as if the first impulse of the Court would be to prevent were to grant an injunction on that which in truth was he had raised no such point at all. There is another that. If there were nothing else to hold their hands not the point argued before me. The point mainly, invalid, it would be right to do so, and I must take for almost entirely, argued before me was as to the holdpoint which has struck me. Suppose it query whether this is not a divisible contract, so granted that, if the injunction went, it was because ing of this meeting and entering into the contract. I that the Court might perform part of it? It is a there was nothing of that sort brought forward. I think I ought not to embarrass it for two reasons. In contract under seal, and there may be a question cannot but suppose that if there had been a con- the first place I think I ought not to interfere to rewhether the consideration is not entire and running flict on the point, namely, what quantity of incon- strain parties, not from doing anything which they at throughout; and indeed I see a great number of venience resulting to the defendant would induce present are going to do, but which it is supposed they questions that may be raised on this point, satisfy- the Court to hold their hands, that would have been will, under a contract which they will enter into, ing me that it is not a mere pretence to say that argued, and the affidavits would have been con- authorise other persons to do. I think that would there are doubts entertained about the validity of trasted, and Lord Cottenham would have given be an unnecessary anticipation of an evil that never the contract. I cannot say that I am so entirely some opinion on it. Now, then, is that the case may happen. I cannot tell that the meeting may clear on that, that I can treat the parties as being here? I must say here, that so far from that being sanction this agreement, or that it will be entered guilty of a sort of fraud or imposition on the Court the case, I think that, by granting the injunction in into. I cannot tell that it may not be so modified con-parties to be restrained in such a case would have to in pretending that there is any doubt as to its vali- the terms in which I am asked to grant it, I should as to secure to all parties the rights they may have enter into be made parties by supplemental bill, or in some dity. Then that being so I have this before me-a be occasioning to these defendants irreparable in- under this agreement of July 1850; and, after all, the They are proposing to contract sought to be enforced by means of this in- jury to an extent that it is fearful to a contract with the London and North-Western other way, namely, the London and North-Western junction, and as to which I think not only have the template. plaintiffs probable ground for saying there is such a contract, but if I were to determine it, the leaning Company, under which the London and North- Company. Upon the whole, therefore, on full conof my mind is in their favour, that it is a valid con- Western Company bind themselves, as I under-sideration, my opinion-on the ground I have stated, tract, still I think there is a bond fide dispute as to stand it, to pay to them a sum which amounts to namely, the enormous preponderance of inconveInjunction refused. whether that is valid or not. Then it is said, in that 40,000l. or 50,000l. a year, for twelve years; that nience there might be in granting the injunction state of things I ought to be governed by that which is the advantage which they are to have. Supposing over any possible inconvenience there might be in occurred in the case of The Great Western Railway it were to turn out in the result, if I were to issue refusing it-is, that I ought to refuse the injunction. Company v. The Birmingham and Oxford Railway this injunction, that the defendants are right, and Company, which it is said is precisely the same case. that the Court of Q.B. or the Court of Ex. or the In that case the defendants, the Birmingham and Court of C.P. should hold that the agreement which Oxford Company had entered into a contract to sell you entered into is invalid, that it is invalid in toto, their railway to the plaintiffs, the Great Western that therefore there was no legal bar to your enterCompany, and the bill was filed by the Great West- ing into this contract; and Mr. Chesshire has made ern Company against them, praying the specific per- an affidavit that he believes this contract to be most formance of that agreement, and it alleged that they highly beneficial to the defendants, and that he bewere obliged to take such proceeding because the lieves the London and North-Western Company are Birmingham and Oxford Company contending for now ready to enter into it, but that he verily believes the invalidity of their contract with the Great that if it is delayed they will not be willing to enter Western Company were proceeding to enter into into it, in what predicament would this Court then a contract to sell to the North Western Company, find itself if it should have issued an injunction reand the bill there, as here, prayed that the straining the defendants from entering into a condefendants "might be restrained by injunction tract, ex hypothesi a valid contract, which there was for the no legal ground to prevent them from entering into, any agreement from entering into the London and and then afterwards they should be unable to enter sale of that railway to North-Western Railway Company, or from in any into it, and so lose 50,000l. a-year for twenty-one manner dealing with such railway, or with the pro-years? Therefore, whatever may have been the perty or effects thereof, except with the approbation case of The Great Western Railway Company v. of the plaintiffs, and from doing or omitting to do, The Birmingham and Oxford Railway Company, in or procuring the doing or omission, of any act, this case it is obvious the effect of my injunction matter, or thing, the doing or omission of which will or may be likely to cause enormous injury to all was, or might be, in breach or violation of, or re- the shareholders in the company who are the present pugnant to, or inconsistent with the said agree- defendants. Now, that is the ground on which I ment." Now, it is said, the case now before me is feel myself bound in this case to refuse the inprecisely the same, and undoubtedly I feel that junction. I have explained it shortly, and, as there is a very great resemblance indeed. Lord I hope, clearly, so that the parties may see Cottenham, in that case, did interfere. Then what was pressed on me was, ought not I to interfere just in the same way, almost so to say blindfold, because I certainly should be the last to dispute the proposition that where a matter has been decided by a Superior Court, even if I doubted its propriety, I am bound to follow it. I have acted on that principle in several cases, restraining parties from obtaining compensation. I have only reversed my own decision or discharged an injunction which I granted myself, because since I acted on that decision of Lord Cottenham, the present Lord Chancellor has made a decision which appears to me, with all deference to him, although he says it does not mean to overrule the other, to be in direct opposition to the decision of Lord Cottenham. Therefore, if I found this case of The Great Western Railway Company v. The Birmingham and Oxford Railway Company, an express authority guiding me, I should feel I was bound to act on it, even if I felt a doubt as to its propriety; but I cannot say that on full consideration I do come to that conclusion, and I will state why. In the first place, Lord Cottenham's arguments here are directed to the demurrer; it is true that on that demurrer being overruled the injunction that had been granted by the UnfortuVice-Chancellor was also established. nately for me, at least for my peace of mind, in this matter we have none of the arguments that were urged upon the injunction; nor have we, which is much more material, any of the affidavits that were before the Court. If it is to be assumed that, as a matter of course, because the bill was not demurable, therefore an injunction was to issue, I should say then I have to decide between what Lord Eldon says and what Lord Cottenham says. It is quite clear Lord Eldon says, that it is not the law of the Court-it cannot be; and I come to that conclusion, because, although Mr. Bethell, who was counsel in the case, I think, stated (I have no doubt perfectly accurately) that the injunction was sustained, because there were no circumstances brought before the ground upon which I am going. It is this: Where property was sold by auction by particulars of sale, and one of the conditions was, that any mistake or error in the description should not annul the sale, but that compensation should be given or taken either way, and it appeared that out of four lots bought one was found to be much more than the quantity set forth in the particulars, and the three others to contain some acres less, the question of the vendor's title to compensation being submitted to the Court on a special case, it was more or for the extra quantity in the one lot, and was entitled to compensation for the deficiency in the other three lots; and it was held that the preHeld, that the purchaser must make compensation sumption of the intention to sell the property in a lump is negatived where there is beyond the description a statement of the acreage less." This was a special case under the statute 13 & 14 Vict. c. 35 (Sir George Turner's Act) for the opinion of the Court. The plaintiffs were the vendors of an estate sold by auction; the defendant was the purchaser. The case stated, that on the 29th of August, 1850, certain lands and hereditaments situate at Ïver, in Buckinghamshire, were put up for sale in several lots by auction, pursuant and subject to certain particulars and conditions of sale, with a map or plan annexed to or forming part of such particulars. That a printed copy of such particulars and conditions of sale, with a map or plan denoting the various lots, by different colours, had been sent by post to the defendant and others by the auctioneer a few days before the sale. That the defendant attended the auction, and the and was declared the purchaser of lot 1, at the price Dromenagh Lodge,' of 2,8007. That he also became the purchaser of lots 2, 3, and 4. That lot 1 was stated by the particulars to consist of a country residence, park, and grounds called nature and quantity of the land comprised in the said lot were set forth in the particulars in the words following, viz.-The well-timbered park is inclosed by thriving plantations and strong oak paling. There is a neat lodge entrance containing neat sitting-room, three bed-rooms, with good garden and dually sloping wood to a pure running stream abunstrong entrance-gate. The long coppice is a graous rustic lodges and seats. This lot comprises dantly supplied with fish, and is studded with numerabout 70 acres and 24 perches, divided in the following manner : 1. Residence, offices, garden, lawn, 2. Stabling, yard, and kitchen-garden a. r. p. 3030 2030 18 0 4 46 3 0 Total acres, more or less 70 0 24 That lots 2, 3, and 4 were described in the par- ment in the amount of the property comprised therein INSOLVENCY. dication is satisfaction; but that after adjudication it is not. This was a claim by Mr. Loosemore to prove for a dividend under circumstances which are distinctly stated in the judgment. The Court delivered its opinion upon the claim to prove to-day. 66 JUDGMENT. Mr. Commissioner LAW said,-The question is raised, whether, in this case, the discharge of the debtor in execution by the plaintiff operates a satisfaction of the debt, so as to disable the plaintiff from proving for a dividend. The vesting order was made on a creditor's petition; the insolvent did not file schedule; and that creditor, Mr. Loosemore, discharged him from custody. Mr. Loosemore now claims to prove. It happens that, after so discharging the defendant, he procured himself to be appointed assignee; and it is manifest that the Court, on appointing him, was led to suppose that the insolvent was remaining in custody. These circumstances, however, do not affect the question of proof. That question is the same as if the claim were by some other person, not being petitioner nor assignee. The case is one of dividend without adjudication. The Court comes to the business in ignorance of creditors, and acts under the instruction of the 62nd section of the statute, which in such case requires the dividend to be made among those who shall prove their debts. Can, then, Mr. Loosemore prove? I think not. The law says that one who has had his debtor in execution and discharged him, has ceased to be a creditor. It has been urged that property which passed by the vesting order, is held in trust for those who were creditors at the date of the vesting order. Such are not the terms of the vesting order. The words are, in trust for the creditors who shall be entitled to share in a dividend." This sends us for information to the dividend clause which I have already mentioned, by which we find that those are entitled who shall prove their debts. Mr. Loosemore has no debt. He has done that by which he ceased to be a creditor. This Court has decided that where the debtor has been discharged by his plaintiff after adjudication, the right to dividend is not lost. But it is not inconsistent with this, to decide that in the present case it is lost. When dividend is made after adjudication, the same 62nd section gives a different criterion of the right to dividend, expressly referring us to the sworn schedule. There may be errors in the schedule, and these are open to correction; but if it has been correctly sworn to, the debts which it discloses are the debts on which dividend is to be paid. A debt which had been already lost by discharge of the person from execution, would not properly stand as an existing debt on swearing to the schedule. This distinction, thus warranted by the words of the Act, rests upon an intelligible principle. An insolvency without adjudication will not interfere with a creditor's right of to sell the lot by measurement, but that they meant suit. He holds his right untouched by the insolvent to sell the lot in the lump. It was upon that law. He holds it, then, on the usual terms, namely, point that I felt a hesitation during the discus- that if after execution against the person he dission before me. The conclusion, however, at charges the person, he discharges the debt. An which I have arrived is this, that the actual adjudication alters the law between the pardesignation of the number of acres contained ties, substituting a new relation between them in the lot negatives the presumption of any under the decree of this Court. The mode intention on the part of the vendors to sell in henceforth of acting against property is through the lump. I am of opinion that there is not a suffi- the judgment which stands on behalf of the cient ground appearing in the case to exonerate the whole body of creditors, and which can only be put purchaser from making compensation for the extra in execution under the discretion of the Court. In quantity of land. Another argument urged on be- the liability of person also a new state of things Prendergast for the defendant. This property, half of the purchaser was, that in the event of the ensues. The unlimited power of the creditor is gone unlike that in each of the cases cited, is not described purchaser being held bound to make compensation together with its incidents. It may be pronounced in the particulars of sale by superficial measure, but there was no means of estimating the amount of that in future no creditor shall take or detain the is designated by reference to metes and bounds, and such compensation. That, however, is pointed out person. Or it may be that some or all are permitted a map is referred to by which the boundaries appear by the condition of sale, which provides that the to do so for a limited time; but it is no part of the to be plantations, roads, and a stream of water. No amount of compensation shall be settled by arbitra-decree of this Court, nor in the spirit of it, that any mistake can, therefore, he inferred, as to what was tion. At all events, if the parties cannot get it creditor, though such qualified power is accorded to the property intended to be sold; it was made clear settled, this Court will get it done by a reference him, shall be required to exercise it. Those who and manifest to the eye. The mistake, if it can pro- to a Master. I declare, therefore, that in this case have not already arrested an insolvent are not comperly be considered one, was of such a gross and the purchaser is bound to make compensation for pelled to procure a detainer. So one who has before culpable nature that the plaintiffs ought not to be the extra quantity of land comprised in lot 1, arrested is not compelled to continue a detainer. It declared entitled to any additional payment, whether and is entitled to receive compensation in respect of would be a compulsion, and a compulsion resting on with or without the 11th condition of sale. (Martin the deficiency in lots 2, 3, and 4. I will give no principle if, by discontinuing the detainer, he v. Cotten, 3 Jones & Lat. 496.) Compensation will no costs on either side. should forfeit his claim to dividend. I say, then, not be given where there does not exist the means that without adjudication an insolvency has no proof ascertaining its amount, and here there are no spective consequences; is not pleadable; avails nosuch means, for the excess cannot be said to be in thing for the debtor: a plaintiff detains him as long any one part, either the park, the garden, or the as he thinks fit; but, if he voluntarily discharges coppice. (Sherwood v. Robins, 1 Moo. & Mal. him, he cannot be retaken; and the satisfaction of 194; Lord Brooke v. Roundthwaite, 3 Hare, 298.) the debt, which was inchoate by the capture, beHe also cited O'Kell v. Whitaker, 1 Phill. 338; and Higginson v. Clowes, 15 Ves. 516. comes complete. This is quite consistent with the principle that, when an insolvency has been attended with adjudication, the qualified right of detainer exists only under the special sanction of this Court; so that he who is left for some specified time at the mercy of his creditors may be discharged by those who have had him in custody, and may remain unmolested by the rest; or, till the period arrives, he may be more or less deprived by them of his liberty. It is no part of the law of this Court, that when the insolvency shall be referred into adjudication, the creditor who originally detained shall be incompetent to waive the privilege which, by the terms of that adjudication, may be continued to him. The justice of the distinction, namely, that a discharge before adjudica Malins in reply.-The intention here was to sell not in the lump, as seems to be contended for by the defendant, and that is shewn by the addition of the number of acres in the particulars of sale. No difficulty as to the mode of assessing the compensation stands in the way, because, if the 11th condition is not sufficient, the Court can have the assistance of the Master on a reference for that purpose. JUDGMENT. The VICE-CHANCELLOR.-In this case there has been a sale by auction of property in four lots. In the particulars of lot 1 there has been an understate INSOLVENT COURT. Reported by DAVID CATO MACRAE, Esq. of the Middle (Before Mr. Commissioner Law.) Re E. GOODING. Bursell contended that when a judgment was recovered there was no necessity for a change of attorneys by rule of Court. The rule of Court recognised agents. He could appear in the same way as Mr. Foulkes. Cooke said there was a case many years ago before the Chief Commissioner. Mr. Lewis was agent of a country attorney, and as such he appeared to oppose the bail. His privilege to oppose was questioned, as the attorney for whom he appeared as agent had an agent in London in Common Law matters. The Chief Commissioner declined to allow Mr. Lewis to oppose. ARCHES COURT. passed a resolution in favour of the rate. A libel pleading these facts was admitted to proof. This was a cause of subtration of church-rate, promoted by James Cordy, Richard Palmer, and John Lewis, as churchwardens of the parish of St. Nicholas, Brighton; it was brought by letter of request from the Consistorial Court of the Bishop of Chichester. The question now before the Court was, whether the libel was admissible, this involved the question, whether a rate made in conformity with a resolution passed by the minority of the ratepayers in vestry assembled, could, where the repairs of the church were urgent, and a monition had issued from the proper ecclesiastical authorities, calling on the churchwardens to take the necessary steps towards putting the church in repair, be enforced. The material averments in the libel are contained in the judgment. Mr. Commissioner Law inquired why had the Chief Commissioner refused to hear Mr. Lewis? Cooke. Because he did not come strictly within the phrase in the rule "Attorney's agent." Mr. Lewis had not done the business in the action upon which the insolvent was detained. That was the Curteis and R. Phillimore, in support of the case in the present instance. This gentleman was libel, relied on Gosling v. Veley (the Braintree neither the attorney upon the record nor the attor-case), 14 Jurist, 406; 12 Q.B. 328. ney's agent. The privilege to oppose bail was an indulgence to the attorney upon the record, and to him only, and not a general permission to the detaining creditor to employ whom he pleased. He was just informed that this gentleman could not get the discharge of the insolvent in this action, not even by the consent of the client, without the consent or authority of the attorney upon the record. Bursell said that that was so if his costs had not been paid; but if his costs had actually been paid, an action would lie against him if he refused to consent. Jenner and Harding, contrà, contended, that that case being under appeal, the Court would not consider it a binding authority; and also that the rate was invalid, since it included the cost of articles not necessary to the performance of public worship. tion is satisfaction and after adjudication is not, will easily be recognised. We are all familiar with the practice for a detaining creditor to send a discharge shortly before the hearing, thereby making it impossible for the debtor to obtain for himself the benefit of an insolvency. In 1838 I proposed a remedy for this injustice, and pressed it upon the authorities when the Act of 1 & 2 Vict. was in progress. But they were deaf to my remonstrances, and the injustice is unremedied. Surely it is fit, that one who thus perversely sends his debtor a discharge, should do so on the usual condition that such discharge operates a satisfaction of his particular debt; that, while it damages the debtor, it should also have its usual result to the creditor. A plaintiff in such case causes the insolvency to be abortive for the other party, and prevents the contemplated change of relation between him and his creditors from being matured; from the moment of that discharge he remains liable to each of those who continue creditors: the insolvency has done something against him, nothing for him. It is then a just consequence to him whose act causes such defeat of hopes, that that act should have to himself the ordinary effect. He takes from the defendant the benefit of the statute: why not then from himself also? It is, however, no less clear that, in the other case, when an insolvency has been perfected by coming to judgSir H. JENNER FUST.-This case has been alment, and the debtor has got for himself the lowed to stand over, in the hope, rather than the benefit of it, the same thing would not be a expectation, that some final result might have been just consequence. The law is newmodelled. Indiarrived at with respect to the Braintree case, and vidual satisfaction can never again be sought by any which might have furnished the Court with some process. The law has interposed, not in the ordirule or principle upon which it might decide these nary way between A. and B. but between A. and Mr. Commissioner LAW said, the only matter that questions. Unfortunately that hope has not been the entire body of his creditors; and, though the had caused him to doubt at all the propriety of ex-realised, and the Court must therefore give its opipolicy of the law does in certain cases still prescribe cluding this gentleman from the privilege of oppos- nion without that aid. The suit is brought to the a limited liability of person, there is no ground for ing for the creditor under these circumstances, was Arches Court by letters of request from the official saying, that the law exacts, against the discretion of the suggestion that it might happen that the pro- principal of the Consistory Court of Chichester. a creditor, that he should be the inflictor of the ceedings in an action might be of some standing, The citation was returned on the 6th of August, 1850. penalty. He is entitled to say that his position is and the communication between the attorney and The rate having been made on the 9th of December, changed; he has acted for others as well as for him- client might have ceased, and therefore it might not 1849, but no explanation was given to the Court why self; he can no longer wield the power which the be reasonable to require the client to apply to the the churchwardens were so dilatory in instituting these general law gave him as a plaintiff; but he has gained same attorney. Supposing there might be a case proceedings to enforce payment of the rate. The other objects in its place: title to existing property of that kind, it had nothing to do with this case. libel consists of twenty-two articles, many of which for all creditors, and special means, through this The reason why they allowed attorneys to ap- might have been dispensed with without detriment Court, of resorting to future property if it should pear without counsel, was not that the Court to the ends of justice or affecting the merits of the arise. The rights of all, with the duties and the allowed attorneys to usurp the province of the case, inasmuch as they refer to occurrences which took risks of all, are made the same. In the present Bar as they did in some places, but the rea-place antecedent to the making the rate in dispute. case, Mr. Loosemore knowingly substituted one son of the exception was, that it was in It appears that, in the years 1816 and 1847, vestry state of things for another, as affects himself. He favour of liberty. As the time was too short meetings were held, at which a church-rate was prodischarged the judgment-debt, taking a fresh written promise having its own dimensions. On this the insolvent remains liable. Mr. Loosemore has the benefit of it. It was by his own act, the liberation of the debtor, that he got that benefit. That act made adjudication impossible. If there had been adjudication, a new promise would not have availed for that debt. The claim would have remained cognisable in this court, and this court only. Mr. Loosemore has made his election. He has discharged the debt which otherwise he would be competent to prove, and he has acquired a new right, on which there can be no proof. Claim to prove disallowed. Monday, Aug. 18. (Before Mr. Commissioner LAW.) Re JAMES ELLIS. Bail-Opposition-Privileges of attorneys. The rule or instruction by the Court respecting oppositions by attorneys, upon application of insolvents to be admitted to bail till their hearing, under 1 & 2 Vict. c. 110, is thus indorsed upon the "Original notice of sureties:"-"Any creditor, by himself, by counsel, or by his attorney or attorney's agent, may there object to the proposed sureties, or otherwise object to such application." This insolvent, lessee or proprietor of Cremorne Gardens, applied to be admitted to bail till the day appointed for his hearing. Bursell, an attorney, appeared to oppose for Mr. Thos. Foulkes, detaining creditor. Cooke, for the insolvent, objected that Mr. Bursell was not the attorney named on the record, or his agent, and therefore he was not entitled to oppose. Bursell said, in reply to the learned Commissioner, he certainly was not Mr. Foulkes, attorney in the action, nor the attorney's agent; but he had lately been employed by him in professional business as his attorney; and meeting him that morning, he had instructed him to oppose on his behalf. Mr. Commissioner LAW observed, that he was not aware whether this point had ever been discussed. The matter should be considered upon principle. Cooke referred to the invariable practice of the Court, and continued-It was not competent for a man to meet any attorney in the street and say go and oppose for me. There would be nothing to shew that an attorney so situated was properly instructed, and it might lead to great abuse. He should, at all events, come there fortified with something in writing to shew that he was authorised to appear. There had been no order of the Court to change attorneys in the action upon which insolvent was detained in custody. to instruct counsel, attorneys were permitted to Opposition by Mr. B. disallowed. Cooke said that if there was no suit, parties might just as well employ counsel as attorneys. Mr. Commissioner LAW.-Our rules, say any Re THOMAS FULLER. not his clerk. This insolvent came up for bail, and the clerk of Opposition by attorney's clerk disallowed. Ecclesiastical Courts. ARCHES COURT. June 18 and July 17. A parish church and district chapel being both in posed, but the rate was on each occasion negatived by a majority of the persons present. No further proceedings towards making a rate appear to have been adopted until application was made by the vicar of the parish to the Court of the Archdeaconry of Lewes praying for a monition against the churchwardens calling upon them to shew cause why they did not take the necessary steps towards effecting the repairs of the church and chapel. The articles to which I have referred as being unnecessary relate to that application only, and therefore do not affect the present question. As, however, the expense of bringing in those articles, and the exhibits annexed to them, has been incurred, the Court would not reject or alter them, provided the libel were generally admissible. The article which is of most importance pleads that the ancient church of St. Nicholas and the chapel of ease of St. Peter still continuing respectively in urgent need of repair, and the churchwardens having no funds in hand wherewith to effect such repairs, they, and divers of the most substantial and others of the parishioners and inhabitants, ratepayers of the parish, on the 9th of December, 1847, met together in vestry, pursuant to public notice, and in obedience to the monition issued, at which meeting the Rev. H. M. Wagner, the vicar, presided. The churchwardens exhibited to the meeting a survey or specification and estimate of the repairs necessary to be immediately done to the church of St. Nicholas and the expenses thereof, which were computed to amount to 2781. 3s. 8d. and also the repairs necessary to be done to the chapel of ease of St. Peter, amounting to 1577. 17s. 4d. They also produced estimates of other necessary and lawful expenses incident to the execution of their office for the current year, amounting to 1881. 6s. and 1017. 3s. 9d. and of the expenses of rate-books and making the rate, amounting to 751. Mr. Cordy proposed a rate of 1d. in the pound, which was seconded by Mr. Williams, whereupon an amendment was moved to the effect "That the reparations and clean keeping of the church be done by voluntary contributions, in accordance with the statute law of the land." The Court does not know where that statute law is to be found. The chairman refused to put the amendment, on the ground that it was illegal, and another amendment was then proposed, to adjourn the consideration of the rate for six months, which the chairman also declined to put, on the same ground. The original motion was then submitted to the meeting, and negatived by a large majority, the numbers being, 47 for it, and 90 against it. The chairman declared that the votes against the motion were illegal, and thrown away, and that the motion CIRCUIT REPORTS. was carried. Upon which the chairman and other Circuit Reports. OXFORD CIRCUIT. (Before Mr. Justice ERLE.) REG. v. ATTWOOD. Confession-Inducement. CIRCUIT REPORTS. used against him on his trial if committed, is not The prisoner was indicted for uttering at Pershore IRELAND. the prosecutor before two magistrates for this same assault and had been fined, and in default of payment of such fine, had been imprisoned in Worcester gaol. A true bill had been subsequently found against the prisoners at the Spring Assizes, for the felonious assault, upon which indictment they were now tried. The jury acquitted the prisoners of the felony, and found them guilty of a common assault. ERLE, J. inquired why the conviction by the A police officer, who took the prisoner into cus- magistrates had not been pleaded in answer to this tody, was called on the part of the prosecution. He indictment, in pursuance of the statute 9 Geo. 4, stated that the prisoner made a communication to c. 31? (a) him, which he took down in writing, and the prisoner Skinner, for the prisoner Stanton, said, that insigned his name to it. Before he made the state-dependently of the fact that he was not instructed ment, the witness said, "I told him to be careful; it until after the prisoner had pleaded, there seemed to would be used against him on his trial if committed be a difficulty in pleading the conviction for the by the magistrates." assault in answer to an indictment for the felony. remy. On the statement so signed by the prisoner being tendered in evidence, W. H. Cooke, for the prisoner, submitted that it was not admissible in consequence of the terms made use of by the witness. Mr. Justice Maule had so decided with respect to precisely the same state of circumstances. Where a magistrate told a prisoner "What you say wILL be given in evidence against you," that learned judge said," It is not proper for a magistrate to tell a prisoner that what he says will be given in evidence against him. It has been held that to tell a prisoner that what he says will be used against him or for him, is an inducement, and to say that it will be given in evidence against him, comes to the same thing, for the statement is made upon an understanding that it will be given in evidence; and it does not signify that he is fold that it will be used against him, for if he is told that it is to be used at all, it may induce him to say something that he may suppose may make for him. It did not become necessary, however, to decide the point. Reg. v. Jones, Gloucester Summer Assizes, 1843, sanctioned by Rolfe, B. Gloucester Winter Assizes, Dec. 15, 1843, in Reg. v. Holmes, 1 C. & K. 248.(a) ERLE, J.-Giving the proper force to expressions, treating language in its obvious sense, it is impossible to say that an inducement was held out to the prisoner to make any statement. I have not a doubt of the admissibility of the evidence in this case. The statement was accordingly put in, and the Skinner, for the prosecution. REG. v. STANTON and OTHERS. The statute 9 Geo. 4, c. 31, provides (sec. 27) for In the course of the trial it appeared that the pri- To caution a prisoner that what he said would be of Mr. Greaves, Q.C.-[J. E. D.] ERLE, J.-In my opinion, the conviction would have been an estoppel to the indictment for the felonious assault and wounding, if pleaded; and although it has not been pleaded, I am bound to consider the charge as having been already adjudicated upon, and the prisoner as having undergone the punishment allotted for it. I think the justice of the case will be answered by all the prisoners entering into their own recognizances to appear and receive judgment when called upon, and to keep the peace to the prosecutor for one year. The prisoners entered into their recognizances Irish Reports. COURT OF CHANCERY. Will, to fulfil trusts of marriage settlement-" Not This was a suit to establish the will of John Edward O'Reilly, and that the plaintiff, Janette Martha O'Reilly, might be declared to be absolutely entitled, for her separate use, to the moneys due for principal and interest upon a mortgage of the 5th of June, 1847, for 4,0001. and also to an estate for life in the mortgaged premises, and in certain other lands in the pleadings mentioned. It appeared that the plaintiff, being possessed of a sum of 7,3647. by indenture of marriage settlement, bearing date the 4th day of May, 1847, it was witnessed that the sum of 7,3647. should be vested in trustees, upon trust, that if the said John Edward O'Reilly should secure by mortgage certain pemiums belonging to the testator, for the payment of 4,0007., that then the trustees should pay to him out of the trust-money the sum of 4,3561. for his own use and benefit. The trustees were to invest the residue of the trustmoney, &c. and to pay the dividends or interest during the joint lives of the plaintiff and of the testator to the plaintiff for her sole and separate use, then to the survivor, and at the death of the survivor to hold the principal for the child or children of the intended marriage, and if but one child, in (a) The statute 9 Geo. IV. c. 31, provides for the summary conviction of persons for common assaults and batteries, and gives power to two justices of the peace to in case of non-payment; or, if the offence be not order the offender to pay a fine, with imprisonment proved, or is of so trifling a character as not to merit punishment, to dismiss the complaint, and make out a certificate under their hands, stating the fact of such dismissal, such certificate to be delivered to the party against whom the complaint was preferred. Sec. 28 enacts, "That if any person against whom any such complaint shall have been preferred for any common assault or battery, shall have obtained such certificate as aforesaid, or having been convicted shall have paid the whole amount adjudged to be paid under such conviction, or shall have suffered the imprisonment awarded for nonpayment thereof, in every such case he shall be released from all further or other proceedings, civil or criminal, for "Provided always and be it enacted (sec. 29), that in case the justices shall find the assault or battery complained of to have been accompanied by any attempt to commit felony, or shall be of opinion that the same is, from any other circumstance, a fit subject for a prosecution by indictment, they shall abstain from any adjudication thereupon, and shall deal with the case in all respects in the same mander as they would have done before the passing of this Act," &c. the same cause." IRELAND. trust for that child. But in case there should be no child, then upon trust, if the plaintiff should survive the testator, for the plaintiff, her executors, &c.; but if she should die in the lifetime of the testator, then upon such trusts as the plaintiff should appoint. The trustees of the mortgage were to pay the interest to the testator during his life, after his death to the plaintiff, and after the death of the survivor, the trustees were to hold for the benefit of the children, and should there be none, for the testator absolutely. 66 The testator executed the mortgage and died on the 3rd of September, 1848, having, by a will bearing date the 7th of November, 1848, devised all his real and personal property to trustees, first, the trusts of my marriage settlement, then for my to fulfil nephew, C. J. Smith, esq. for his life, and, after his death, to his child or children, as he shall appoint; should he die without issue, then to the sole use of my sister Margaret for her life, and to her children as she shall appoint; in default of such appointment by her, to her children share and share alike as tenants in common for their lives, her daughters to hold as femmes sole, notwithstanding coverture, and at the demise of said children of said Margaret, to my right heirs, if women, as femmes sole, As to my funded property, my trustees are to hold 5001. of 34 per cent. stock, for the sole and absolute use of Isabella Cusack, and to pay it only on her sole and separate receipt notwithstanding her marriage; the remainder of said stock I bequeath for the sole and separate use of said Margaret Reilly, her husband or his creditors to have no interference therewith whatever; if she do not survive me, then for the use of her children in equal proportions, their executors, administrators, or assigns, the women to hold as femmes sole. I wish to alter a portion of that part of my will above relating to the funded property bequeathed for Margaret or her family. Should my wife have a child by me, they are to pay C. Smith, esq. 5001. sterling out of it; should such child or children survive me, my heirs, though life tenants, can cut, sell, and carry away turf bog off said lands, and cut timber, as well off the demesne of Annagh as in the churchyard therein. I give to my beloved wife all our furniture, horses, and moveables at Chester, as well as all her own fortune not included in our marriage settlement, for her sole use as a feme sole should she marry again. I direct my furniture at Annagh shall be sold, the carriage we travelled in from London (with the exception of the pictures and engravings, which I leave to my wife), and produce handed to my cousins, and to C. J. Smith, his executor, who proved the will." Christian, Q.C. Francis Fitzgerald, Q.C. and R. R. Warren, for the plaintiff, cited Strode v. Russell, 2 Ves. 621; S. C., Eq. Ca. Ab. 210, pl. 18; 3 Ch. Russ. 169, affirmed on appeal; Vorn Lytton v. Lady Folkland, 3 Bro. C. C., Tom. Ed. 24; Chester v. Chester, 3 P. W. 56; Glover v. Spenlove, 3 Bro. C. C. 337; The Incorporated Society v. Richards, 1 Dr. & War. 258; 4 Ir. Eq. R. 177. Green, Q.C. Deasy, Q.C. and Hemphill, for the defendant, Margaret Reilly, cited, as to the first clause in the will, Adams v. Adams, 1 Hare, 537; Doolan v. Smith, 9 Ir. Ex. 426; Gough v. Andrews, 1 Col. 69; V. C. Sondoy's case, 9 Co. 127. On the second clause, Cooke v. Oakley, 1 P. W. 302; Church v. Munday, 15 Ves. 396; Welby v. Welby, 2 V. & B. 187; The Attorney-General, 8 Ves. 256, 294; Daniel v. Miles, 6 East, 494; Straugh v. Teatt, 2 Burr. 912. Rolleston, Q.C. J. Maley, and John M'Mahon, appeared for other parties. F. Fitzgerald replied. The Lord Chancellor having expressed his then opinion, subsequently desired to have the case reargued. It is not necessary to state this opinion, as he repeated it in his final judgment. Monday, Feb. 10.-The case was now re-argued by F. Fitzgerald, Q.C. and R. R. Warren, for the plaintiff. LORD CHANCELLOR'S COURT. and moveables at Chester, as well as all her own Equity Courts. LORD CHANCELLOR'S COURT. July 19 and Aug. 7. Judgment debt-Charging order-Stop order on c. 110. A judgment creditor who has obtained a charging In this cause, a petition had been presented by LORD CHANCELLOR'S COURT. 281 after to accrue thereon should from time to time, until further order, be paid to Alexander Taylor to answer his annuity. had executed a bond to the petitioner, dated the 19th day of November, 1835, conditioned for payThe petition then stated that Alexander Taylor ment to the petitioner for his life of an annuity of brought an action on the bond in the Court of Ex1047. 2s. 6d. and that in the year 1843 the petitioner chequer against Alexander Taylor for recovery of the arrears then due on the annuity, and recovered marked with execution to issue for 3811. and costs. judgment in the action for the penal sum of 3,0001. That sum was levied under a writ of fieri facias arrears of Alexander Taylor's annuity, which formed on a cheque by the Accountant-general for 500l. the the subject of a former petition in these causes. The tioner caused a writ of inquiry to be issued for the purpose of assessing the damages due to him on petition then stated that in Hilary Term last the petifurther breaches of the condition of the bond by nonpayment of the annuity, which were assessed at 9537. 15s. 7d. and costs, for which execution was then to issue. By a rule made ex parte in the action by Martin, B. dated the 25th of February, 1851, on the application of Reece, the petitioner, it was ordered that unless cause was shewn to the contrary to the judge at chambers on the 15th of March, the sum of 6,8677. Bank Three per Cent. Consolidated Annuities before mentioned should stand charged with the payment of 9407. 6s. 1d. being the amount due to the petitioner; and by a rule dated the 15th made absolute, and that the said Bank Annuities day of March, it was ordered that the rule nisi was should stand charged with that amount. The petition then stated that the time was not yet elapsed, after which the petitioner would be at liberty, acTaylor from receiving the dividends to accrue on the claimed to be entitled to a stop order, to prevent cording to the statute, to enforce his charge, but annuities. That the respondent was resident out of the jurisdiction, and that on a former petition Messrs. Chauntler and Westwood, of Gray's-inn, had acted as his solicitors. The original petition was heard ex parte on the 25th of June, when ViceChancellor Knight Bruce made an interim stop order on the funds till the 9th of July, and directed that service of the petition on Messrs. Chauntler and Westwood should be good service on the respondent Taylor. The petition again came on to be heard before the Vice-Chancellor, when the interim order was discharged, and the petition was ordered to stand over until after the end of six calendar months from the date of the charging order. Against that order the petitioner appealed. Bacon and Smythe supported the appeal petition. has a benefit from the charging order, therefore the trustees, they would have been served with notice of Green, Q.C. and Deasy, for the defendant. Warren replied. Tuesday, Feb. 11.-The LORD CHANCELLOR.On consideration, I see no reason to change the opinion which I originally formed upon the first question raised in this case. It has been contended instituted for carrying into execution the trusts of The petition was presented in several causes, that under the first part of this devise the testator the will and codicils of Thos. Cape, the testator in could not have intended to confine the trusts of the the causes, who by the second codicil to his will, will to the money fund already secured by the mort-dated the 16th day of June, 1847, bequeathed an gage of the lands specified. I cannot yield to that annuity of 2001. to Alexander Taylor, the respondent distinction. It is first to be observed that the tes- in this petition, and directed his executors and trustator does not devise the lands therein mentioned to tees, as soon as conveniently might be after his dethe trustees of the marriage settlement, but to new cease, to appropriate and set apart sufficient funds trustees, and it seems to me the words "to fulfil the wherewith to pay and satisfy the said annuity clear trusts of my marriage settlement" will be satisfied of all income and property tax. by holding the entire lands to have been devised as in these causes, dated the 18th of November, 1850, a security for that mortgage debt, and to me there it was ordered that the acting executor of the said By an order made appears to be nothing incongruous in including it in testator should transfer to the credit of Cape v. those words. On the second question which has Jefferyes, No. 1, to the annuity account of Alexander been argued, I am of opinion the plaintiff must suc- Taylor, certain sums of money, amounting together the tenants. There might be some difficulty in such ceed. After some bequests, the testator says, "I to 6,8671. Bank Three per Cent. Consolidated An- a Bacon. He might give notice to the trustees or to give to my beloved wife all our furniture, horses, nuities; and it was ordered that the dividends there- Benefit means payment. A stop-order is not within VOL. XVII. No. 439. (Bristed v. Wilkins, 3 Hare, 239.) as are found in the Act, by way of agreement, the case. |