tioner, and that said receiver might be at liberty, without further order, to manage and let, with the approbation of the Master, all the lands and premises over which he should be appointed. Mr. Johns for the petitioner. The property is so very small, that if the receiver accounts every year, the costs will amount to the entire profit rent, and there will not be anything for the discharge of the debt. MASTER OF THE ROLLS-I will make the order in the usual form. Refer it to the Master to appoint a receiver, who shall enter into recognizance for the due performance of his duties, and also to account ouce in every year. SHERLOCK v. DISNEY.-March 7. Practice-Demurrer—Amendment. Where a demurrer not having been set down for argument, was allowed under the 64th General Order, the court will not permit the record to be amended, by re-introducing upon it the defend ants against whom the bill was dismissed, a new defence having arisen since the filing of the original bill. In this case, the facts of which are stated, ante, page 127, a demurrer had been taken to the bill, and same not having been set down for argument within the usual time, was deemed allowed, pursuant to the 64th General Order. On the 22nd of last December, the plaintiff moved for liberty to amend, and serve new subpoenas against the demurring parties, and the costs of the demurrer not having been paid, the motion was refused with costs. Mr. F. Fitzgerald now moved, that the bill might be restored, notwithstanding the order dismissing same, and that the defendants against whom the bill had been dismissed, might be considered parties to the cause. The defendants have been guilty of irregularity; for the demurrer was taken without an attested copy of the bill having been taken out. Also, if the amendment is not allowed, the Statute of Limitations will prevent the filing of a new bill. When the former application was made, the costs of the defendants were not paid, but that objection is now removed. Mr. Fitzgerald, in reply, cited Walkins v. Bush (2 Dick. 701, Dan. C. P. 553), and contended that if the plaintiff was compelled to file a new bill, the original defendants would be then enabled to take advantage of the Statute of Limitations as well as those who had demurred. MASTER OF THE ROLLS.-So far as this motion seeks to restore the bill as to the defendants against whom it has been dismissed, that is calling on me to set aside the 64th General Order, and the case of Knight v. Majoribanks (14 Sim. 198) is an express authority against so doing; and it is plain the application is so far unsustainable. By the second part of the notice, I am called on to permit an amendment by re-introducing defendants against whom the bill stands dismissed, thus enabling the plaintiff to get rid of the Statute of Limitations, by making the bill bear date from the year 1847 instead of the present day. If the amendments are properly made, the order which is sought could not be of any advantage, as the amendments must set forth the circumstances under which they are made, that the bill standing dismissed, with costs, liberty was given to re-introduce the defendants upon the record, and that would In the case of Hornebrooke v. Weir,† following the have the same effect as if a new bill was filed. authority of Cornwall v. Sperring, before Sir M. O'Loughlen, under the particular circumstances of the case, after a demurrer allowed under the 64th General Order, I permitted the bill to be taken pro confesso against the defendant who demurred, and I am inclined to grant such an order as is now sought, where it cannot be any advantage to the defendant to insist upon a new record; but that does not apply to a case like the present, where a defence has arisen which did not exist to the original bill. If I were to make this order, I should be depriving the party of his defence, for the only advantage to be derived from permitting this amendment would be, that the plaintiff might insist that his bill bore date of the year 1847, new rights have been acquired by the negligence with I must refuse this motion, with costs. which the plaintiff's case has been conducted; and ROWLAND v. M'DONNELL.-March 12. Hughes, Q.C., and Mr. Robert Warren, contra.Practice-Replication, Amendment of. This is an application to the discretion of the court. Hughes, Q.C., moved, that the plaintiff's replicaIf this motion is necessary to get rid of the Statute of Limitations, the court should not interfere to the file and set aside for irregularity, on the ground tion, filed on the 16th of February, be taken off destroy that defence, but should leave the plaintiff that the plaintiff thereby purports to join issue with to his legal remedies. In the case of Knight v. one Thomas V. Clendenning, as a defendant in the Majoribanks (14 Sim. 198), it did not appear that any new defence arose out of the transaction. By cause, there being no person of that name a dethe rule of the court, this bill stands dismissed. In fendant therein; and also that the bill stand disthe case of Downing v. Hodder,* the Lord Chan- missed, with costs, for want of prosecution. In cellor laid down the principles on which this court had been made to set aside a former replication, day of an application should act, in relaxing the General Orders, and this case does not come within them. If the Sta- had not appeared, and the plaintiff obtained liberty as purporting to join issue with a defendant who tute of Limitations applies, the order to amend will not save the plaintiff's rights, as the amend- to amend, upon payment of costs; accordingly, ments would be of the day upon which the order the present replication was filed, by which issue was joined with T. V. Clendenning, who was not a party to the cause, having died in the year 1847. † Reported, ante, p. 117. Vid. ante, p. 117, note. is made. • Reported, ante, p. 137. this case on the Mr. Maley, contra, moved a cross notice for liberty to amend the replication, by striking out the name of T. V. Clendenning. From the affidavit of Mr. Wetherell, a solicitor, it appeared that the name of Clendenning was inserted by mistake, and was a mere clerical error. MASTER OF THE ROLLS.-This appears to be a mistake, and I will give liberty to amend; and let the plaintiff pay the defendant, M'Donnell, £5 costs of this motion. QUEEN'S BENCH.-HILARY TERM. Right of Allottee of Shares in Railway Company An allottee of shares in a railway company, provisionally registered, paid a deposit of £2 2s per share, and signed the subscriber's agreement, which gave the provisional directors power to carry on the undertaking, or any part of it, or to abandon the whole, or any part of it; and out of the money which should come to their hands, by way of deposit or otherwise, to make such deposits or investments as might be required by the Standing Orders of Parliament, and also to pay salaries, &c., and the costs of obtaining Acts of Parliament, &c., and generally to apply such moneys in paying and satisfy ing all other costs, expenses, or liabilities which they might incur, in relation to the undertaking. The project proved abortive; and, in un action of assumpsit to recover back the deposit, Held, that the plaintiff could not, in such action, impeach the validity of the subscribers' agree ment, and that, by executing that deed, he had authorized the directors to dispose of the money, and therefore could not recover back any part of the deposit. Assumpsit for money had and received for the use of the plaintiff, and for money due on an account stated. Plea, non assumpsit. such surveys and estimates to be made as they might think advisable, besides such as had already been made, and to abandon the undertaking, or any part thereof, and to make application to Par liament at the then ensuing session, for an Act of Parliament for all or any of the purposes therein mentioned," &c. The directors were also to have "full power to determine how far, and to what extent, the undertaking was to be carried into effect, deferred, or abandoned, and generally to enter into and carry on all such negociations, covenants, and agreements, and to do and execute all such acts, deeds, matters, and things, in relation to the said undertaking, and to the application to be made to Parliament, and for winding up the undertaking, and the affairs and concerns thereof, in case such Acts of Parliament should not be obtained, as they (the directors) should, from time to time, consider expedient." They were also to have "full power out of the money which should come to their hands, or be placed to their credit, by way of deposit or payment of calls, or otherwise, in relation to the same undertaking, to make such deposits or investments as might be required by the Standing Orders of Parliament; and also to pay and allow all such fees, salaries, and recompense to counsel and solicitors, clerks, servants, and other persons who might be employed in rela tion to the said undertaking, as they should think right, and generally to apply such moneys in and towards the fulfilment of any bargains, engage ments, contracts, arrangements, or agreements, into which they might have entered, or into which they were, by that deed, empowered to, and should or might enter for the purposes aforesaid; and towards the costs of any works or proceedings connected therewith, and in and towards the solicit ing, supporting, or opposing a bill or bills in Parlia ment, as therein mentioned, and in obtaining the necessary act, or acts, for carrying out the said undertaking, or any part or parts thereof, and generally in paying and satisfying all other costs, charges, expenses, and liabilities, which they might sustain or incur, or which might already have been sustained or incurred, in relation to the said undertaking, or otherwise, under and by virtue of these presents." It appeared from the evidence, that a bill for the incorporation of the company had been At a trial before Richards, B., at the Spring Assizes for the County Wicklow, 1848, it appeared that the defendant was one of the provisional directors, and a member of the managing committee, of a company provisionally registered under the 7 & 8 Vic. c. 110, called the Dublin and Sandy-introduced into Parliament, and that, after having mount Atmospheric Railway Company, and that the action was brought to recover the sum of £31 10s., being the amount of a deposit of £2 2s. per share, paid by the plaintiff on the allotment to him of fifteen shares in the undertaking. The plaintiff received scrip certificates for his shares, and, on the 4th of November, 1845, executed the parliamentary contract and also the subscribers' agreement. The latter deed was made between the shareholders, of the one part, and two trustees, of the other; and, by it, the shareholders nominated certain persons, including the defendant, to be the managing committee, or directors of the undertaking, and conferred on them very extensive powers. Amongst others, this deed gave to the directors "full power to take such measures as they might deem expedient to carry the undertaking into effect; and, for that purpose, to cause passed the House of Lords, it was rejected, on merits, in the House of Commons. It further appeared, that the provisional registration of the company was not renewed, and it was admitted by the defendant, that it was not intended that the project should be further prosecuted. He also admitted that the stock of the company, according to the last prospectus issued, was to have consisted of 6,000 shares of £20 each, on which a deposit of £2 2s. per share was to have been paid up, and that deposits were only paid on 3,200 shares. The solicitor for the company was called for the plaintiff, and he proved that, according to the original prospectus issued by the promoters of the undertaking, the capital was to consist of only £54,000, in 3,600 shares of £15 each, deposit £1 5s. per share, and that the alteration in the capital of the company was made by the directors on the 23rd of October, 1845, after the applications for shares, but before any were allotted. The plaintiff was then proceeding to give in evidence the particulars of a meeting of the company held on the 5th of January, 1846, when, on the part of the defendant, it was objected that any evidence should be received of the conduct or management of the comafter the time of the execution of the deeds pany by the plaintiff. The learned Judge, however, overruled the objection, and admitted the evidence. It appeared that the meeting of the 5th of January was called in consequence of some of the shareholders being dissatisfied with the manner in which the affairs of the company were managed by the directors. The causes of disapprobation were, that some of the directors had not paid the deposit on their shares that others of them, though named in the prospectus, had never acted-that one of them had never executed the deed-and that three of them had not taken any shares in the undertaking. Another cause of disapprobation was, that the son of one of the directors had been substituted in his father's place, as director, and that the substitution was not authorized by any act of the directors. It further appeared from the evidence, that previous to going before Parliament, a considerable reduction was made, by the engineer of the company, in the estimate of the probable expense of the undertaking, and that the capital was thereupon reduced from £120,000 to £83,332. At the close of the plaintiff's case, counsel for the defendant called for a non-suit, upon the following grounds:-1st. Because the contract upon which the sum of £31 10s. was paid by the plaintiff, was a contract under seal, and that money so paid could not be recovered in an action for money had and received. 2ndly. Because there was a partnership created by said deeds, existing between the plaintiff and defendant, and that by reason of such partnership, the present action was not sustainable. 3rdly. Because there was no evidence of fraud to vitiate the deeds, or to discharge the plaintiff from his contract; and, lastly, because there was no evidence of any money having been received by the defendant for the use of the plaintiff. The learned judged refused to non-suit, and the defendant then went into evidence to show the bona fide character of the proceedings; that the conduct of the directors was approved at a meeting of shareholders held on the 11th of May, 1846, at which meeting plaintiff's scrip was presented, and that the full number of 6,000 shares were allotted in the said undertaking. At the close of the defendant's case, counsel for the plaintiff submitted that the plaintiff executed the deeds upon the understanding, that the capital of the proposed company was to consist of £120,000, to be subscribed in 6,000 shares of £20 each, whereas no more than 3,000 shares were actually subscribed for, and called upon the learned Judge to direct the jury to find a verdict for the plaintiff, inasmuch as the undertaking for the purpose of which the plaintiff had subscribed, and paid his deposit, was altogether abandoned before the present action was commenced, and it was not shewn that any of the money paid by the subscribers on their shares was expended in any manner authorized by the subscribers' agreement, which the learned Judge refused to do, whereupon counsel for the plaintiff excepted. The defendant's counsel then called on the Judge to direct the jury-1st, that if they be lieved the proposed undertaking was entertained and carried out, bona fide, up to the time when the plaintiff executed the subscribers' agreement, they should find for the defendant; 2ndly, that unless they believed the plaintiff was induced to execute the said deed by fraud or misrepresentation practised by the defendant, or some person in his behalf, they should find for the defendant, which the learned Judge refused to do, whereupon counsel for the defendant excepted. The learned Judge left two questions to the jury-1st, whether the project or undertaking was up to, and at time of the plaintiff's joining therein, and executing the said deeds, and payment of his deposit, a bona fide project and undertaking; and 2ndly-whether the plaintiff was induced by any untrue or fraudulent representation of the committee of management, to take part in the undertaking, and execute the deeds. Upon this second question, the learned Judge told the jury, that in considering the question of fraud, or misrepresentation, they should take into their consideration, as evidence on the said question, the facts, that four of the persons named as directors, in the prospectus of the said company, did not afterwards act therein; or execute the deed thereof, and that three of the directors did not take any shares therein; whereupon defendant's counsel objected, and insisted that the said facts and matters were not admissible upon any issue in the present action against the defendant; and that the jury should have been directed to exclude them, and all facts and circumstances occurring after the time of the execution of the said deed by the plaintiff, from their consideration, but the learned Judge ruled that all such facts and circumstances were so admissible in evidence, and thereupon the defendant's counsel excepted. The jury found in the affirmative upon both issues, and the defendant's counsel then called for a direction, in favour of the defendant, but the learned Judge directed the jury to find a verdict for the plaintiff whereupon counsel for the defendant excepted. Lynch and Lawless were now heard in support of the exceptions. This money was never had and received by the defendant for the use of the plaintiff. The defendant was not one of the trustees in whom the money was vested, and there is no evidence, that it ever came to his hands. The shareholders committed the management of the affairs of the company to the provisional directors, and the "subscribers' agreement," gave them power to apply the deposits, in payment of any charges and expenses. The plaintiff, by executing the deed, became associated with the defendant in a common adventure, a partnership was created between them. The present case is distinguishable from Walstab v. Spottiswoode, (15 M. & W. 501), for there, the plaintiff, not having executed any deed, was never jointly interested with the defendant in the undertaking, and the purpose for which the money was paid, wholly failed. The proceedings, in the case now before the court, were carried on bona fide up to the time when the plaintiff executed the "subscribers agreement," and the circumstances which took place, after the execution of that deed by the plaintiff, were not admissible in evidence, in the present action.[They cited Garwood v. Ede, (1 Ex. Rep. 264); Cobb v. Becke, (6 Q. B. Rep. 930); Hervey v. Archbold, (3 B. & C. 626); (2 Stark on Evid. 64); Howard v. Shaw, (9 Ir. L. Rep. 335); Lessee Blackwood v. Gregg, (Hayes' Rep. 277); Clements v. Todd, (1 Ex. Rep. 268); Mockler v. Sharpe, (4 Railw. Ca. 52, S. C. 11 Jur. 573).] Coates and O'Callaghan, contra :-The deeds are out of this case, as they were executed by the plaintiff, by means of a fraudulent representation. We have in this case more evidence of fraud, than existed in Mockler v. Sharpe, for we Venire de novo. MIDDLETON V. MAXWELL.-Jan. 27. Priority between Sequestrations- Costs and Expenses-Liability of Sequestrator for ArrearsApportionment of Rent-charge-5 Geo. 4, c. 91; 1 & 2 Vict. c. 106. costs which he had incurred in relation to his sequestration. A sequestrator is liable to account for an arrear of rent-charge which became due while he was in possession. Where the possession of the sequestrator ended the 5th March, 1844, no apportionment of the rent-charge which accrued between the 1st of November, 1843, and that date, could be made, so as to charge the sequestrator. A sequestrator is not liable for the gale which became due previous to his appointment. The plaintiff in this case had, in Easter Term, 1841, obtained a judgment for £500 against the defendant, who was then vicar of the prebendary of Balla, and rector of the parishes of Minolla levari issued on that judgment, and on the 3rd of and Roslee, in the diocese of Tuam. A writ of June, 1841, the benefices of the defendant were sequestered, and T. Lancaster appointed seques fendant did not reside in any of his parishes; and, trator. When this sequestration issued, the de on the 20th of July, 1841, the Lord Bishop of served on the defendant, and, being disregarded by Tuam issued a monition to reside, which was him, a sequestration for non-residence issued on the 5th of March, 1842, and the said T. Lancaster was On the 5th of March, appointed sequestrator. 1844, the benefices of the defendant became void, from non-residence, and on that day another cler gyman was inducted into them. On the 15th of June, 1848, the plaintiff obtained, from this court, an order of reference to the Master, to take an ac count of the revenues of the benefices of the defendant, from the 3rd of June, 1841, the time when the first sequestration issued, to the 7th of March, 1844, when the benefices were avoided-to report how said revenues were applied, and what sum was due to the plaintiff, after giving all just credits and allowances. The proceedings upon this reference January, 1849, the Master made his report, in were by charge and discharge; and, on the 3rd of which he certified (among other things) that counsel for the plaintiff objected to allow the bishop several sums which he claimed credit for in his discharge, and submitted that the bishop should be charged with the receipt of certain moneys, the particulars of which the Master set out in his report, and referred back to the court, as involving questions of law. The case now came before the court upon motion on behalf of the plaintiff to confirm the report. Sir T. Staples, Q.C. (with him Dr. Wiley) for the plaintiff.-The officer has referred six questions to the court. 1st. Whether the bishop, or his seques trator, is liable to account for an arrear of £63 A judgment creditor issued a sequestration against which became due while the sequestrator was in an incumbent, and thereupon went into the possession of his benefices. The bishop of the diocese actual possession. 2ndly. Whether the sequessubsequently issued a sequestration for nontrator is liable for the gale which became due residence against the same incumbent. Held, on the 1st of May, 1841, amounting to £143. (Crampton, J., dissentiente) that the sequestra- [Blackburne, C. J.-You cannot claim that.] tion for non-residence had the effect of suspending 3dly. Whether there should be an apportionment the creditor's sequestration, and that the bishop of the rent-charge which became due between the was entitled to apply the proceeds of the benefices, 1st of November, 1843, and the 5th of March, in the first instance, in defraying the necessary 1844. [Crampton, J.-The sequestrator could expenses of serving the cure, and in paying the not bring any action until after the 1st of May when the gale became due.] [Moore, J.-It is only in the name of the sequestrator you can bring an action.] The fourth question has reference to certain sums that the sequestrator paid, which, we submit, he was not authorized to pay ; first, £2 10s. paid in October, 1841, to the chapter of the cathedral for preaching-[Blackburne, C. J.-It is a necessary outgoing for the special duties of the parish, and the bishop has a power to appropriate a sum out of the proceeds for such purposes. The parochial duties are performed by the curate, but there are charges for which the prebendary of the cathedral is liable]; and, secondly, £30 9s., the costs of the sequestration which issued in 1842, after the creditor's sequestration, for the purpose of enforcing the residence of the incumbent. [Perrin, J.-It is a subsequent demand for a paramount title.] A subsequent right of action ought not to interfere with the prior title of the judgment creditor. [Blackburne, C.J.-The question is, whether the bishop can interfere with the prior sequestration, so as to enforce the perform ance of the duties of the parish upon which the property is held.] [Moore, J.-Whether this is not an exercise of a paramount title by the bishop.] The fifth question is, whether the bishop was empowered, after one sequestration issued, to increase the salary of the curate to £75. [Moore, J.-in a proceeding for the benefit of the creditor, the Must not the sequestrator take the rents and profits, subject to the right of the bishop to provide for the due administration of the duties of the parish?] The last question is, whether we are entitled to interest, as against the sequestrator. [Blackburne, C.J.-We will not argue this question until we see if there is a fund in the hands of the sequestrator.] incumbent, and ended in the avoidance of his benefices. It is perfectly plain, that the right of the sequestration creditor to attach the income arising from these benefices, was, in its nature, puisne to the sequestration of the bishop. The bishop issued his sequestration to compel the incumbent to perform one of the paramount duties connected with his benefices, namely, to reside in his parish; and it suspended the right of his creditor while that duty remained unperformed, the creditor being in no better condition than the incumbent. The bishop was acting in the discharge of a public duty, and having nominated the same sequestrator who had been appointed the year before, the proceeds of the benefices, after the taxes were defrayed and the necessary expenses of serving the cure deducted, were to be applied in the payment of such reasonable expenses as might be incurred in relation to the sequestration. These are the expenses which the plaintiff now objects to allow the bishop; but, in my judgment, the bishop's right to those credits is paramount to any title which the creditor has to the income of these benefices. It is plain, that the bishop might have effectually put the creditor's sequestrator out of possession, and thereby have treated his sequestration as a perfect nullity. I may further observe, that these costs were incurred Dr. Radcliffe and R. B. M'Causland for the Lord Bishop of Tuam.-The title of the sequestrator ceased in March, 1844, and the arrear of £63 is part of the rent-charge which became due on the 1st November, 1843. [Blackburne, C.J.He must be charged with that arrear, for the succeeding incumbent has no right to receive any part of the rent-charge which became due before his appointment.] The 5 Geo. 4, c. 91, s. 25, gives the power to the bishop to sequester the living, and to pay the charges incidental thereto. [Crampton, J.-The only difficulty is with respect to the costs of the second sequestration.] They referred to Waite v. Bishop (5 Tyrw. 90; S. C., 1 Cr. M. & R. 507); and Egan v. Heenan (3 Ir. E. R. 50). Dr. Wiley, in reply. The court decided, upon the former motion, that the sequestration of the bishop was puisne to the sequestration of the cre ditor. I admit that the English statute (the 1st and 2nd Vict. c. 106, s. 110) which gives power to the bishop to sequester for non-residence, gives a priority to his sequestration, except in the case of a sequestration upon a judgment duly redocketed; but my argument is, that it required express legislation to postpone the creditor's sequestration. BLACKBURNE, C.J.-The only matter remaining to be disposed of is, as to the costs of the seques tration which issued in 1842. That sequestration issued in consequence of the non-residence of the object being to enforce the residence of the incumbent, upon which the estate was to depend. CRAMPTON, J.-I am not able to take the same view of the question before the court. That question has reference to the priority between two sequestrations. In May, 1841, the plaintiff obtained a sequestration against the benefices of which the defendant was then the incumbent. That sequestration issued in the ordinary form, and, under its authority, the rents of the benefices became legally vested in the sequestrator; it was duly published, possession taken under it, sums received, but the creditor was not paid the entire amount of his judgment, for £200 yet remained due to him. In March, 1842-nearly a year after the bishop issues a sequestration for nonresidence. I see no conflict between these two sequestrations. The bishop exercises his power, as ordinary of the diocese, by penalties, and one of them is to compel a forfeiture of the living; that power has been exercised, the incumbent is put out of the living, but the title of the creditor cannot be divested by the bishop. From the period of the sequestration under the levari, the rents remained undivested, and were the property of the creditor. The second sequestration cannot have effect until the first sequestration is completely answered; the law prior tempore prior jure applies, and renders the second sequestration inoperative until the first is discharged. If this question were raised in England, it would be decided in favour of the bishop, the difference being created by legislative enactment. The object of the bishop's sequestration was the enforcement of a penalty against the incumbeut for nonresidence; it was to punish him for personal misconduct, and was not to deprive the creditor, in the meantime, of his right. The two sequestra |