Lord Lorton, was aware of the dealing. That to such persons at extravagant prices, and under case went much on the doctrine of the protection circumstances demonstrating imposition or undue given to young members of a family dealing be- advantage, or an intention to connive at secret exhind the back of their parents, and the transaction travagance and profuse expenditure, unknown to was upheld for that reason, and because the goods their parents or other ancestors; Courts of Equity were sold in the course of business, at regular shop have reduced the securities and cut down the prices. There was there nothing to warrant inter- claims to their reasonable and just amount." Now, ference, the Court going on those principles, the with regard to the doctrine of King v. Hamlet, I father being a party, and no extravagant price think this transaction was not known to Lord Licharged. There are other cases where the dealing merick; it is not alleged that it was, and it seems was in reality for a loan of money, coloured by an even to have been concealed from him, for when a arrangement for the sale of goods. But the ques- family settlement made provision for the debts of tion here is, whether the doctrine applies to a case Lord Glentworth, there was no mention made of like this, conceding that an extravagant value was this debt. In so far, therefore, as this case rests put on the animals, and a security taken for it. It on the general doctrine, there is that distinction was contended that it was justifiable that a security between these cases. Bill v. Price, (1 Ves. 467;) should be taken for them at four times the value Berny v. Pitt, (2 Ves. 157,) are common cases of the animals, considering the time the vendor of post obits. As to the parties who seek this relief, was to lie out of his money, and the risk which he they are entitled to it if Lord Glentworth himself was to run; and without doubt, if the parties could have had it: that is established in Evans v. stood on equal footing, it is not to be said that the Chesshire, (Blet. sup. 317;) Molony v. Lestrange, vendor might not put a higher price on his goods (Beat. 406.) Barker v. Vansommer, (1 B. C. C. for those reasons. But the question arises, whether 149,) was a case of goods sold to be turned into behind that there is not a principle which will pro- money, and therefore does not apply to the present tect persons in the position of Lord Glentworth case; but the Lord Chancellor says-" It is argued against circumstances like those. It is necessary by one gentleman that this was a mere sale; that to look at some of the early cases, to see whether therefore the Court cannot look into it. I allow, they do not reach the circumstances of this case. that if it was in the common course of trade, it The first to which I shall refer is, Cole v. Gibbons, would be so. That was the reason upon which (2 P. W. 294.) where Lord Talbot said, "That the Court of Exchequer refused relief in the Duke the policy of the nation was to prevent what was a of Lancaster's case." In Gwynne v. Heaton, growing mischief in ancient families, that of seduc- (1 B. C. C. 9,) it is laid down, that "the heir ing an heir apparent from a dependance upon his of a family dealing for an expectancy shall be ancestor, who probably would have supported him, distinguished from ordinary cases, and an unconand by feeding his extravagancies, tempting him scionable bargain made with him shall not only be in his father's lifetime to sell the reversion of that looked upon as oppressive in the particular in estate which was settled upon him, forasmuch as stance, and therefore avoided, but as pernicious in this tended to the manifest ruin of families, there- principle, and therefore repressed. This must be fore the policy of the nation thought fit, though it taken to be the established principle. But it is at first prevailed with some difficulty, to put a stop objected that here the son had no allowance. That to so mischievous a practice, by setting aside all circumstance occurred in many of the cases. Nott these bargains with young heirs for reversions." v. Hill had everything in its favour; the father There the doctrine is applied to sales, as it is in was corrupt, it was clear of fraud, save such as Twistleton v. Griffith, (1 P. W. 310,) where the arises from inequality only. In Barnardiston v. Lord Chancellor said "he saw no inconvenience in Lingood, (2 Atk. 133,) and Chesterfield v. Jansthe objection, that at this rate an heir without dif- sen, Lord Hardwicke treated inequality as a mark ficulty could not sell a reversion; this might force of fraud. Curwyn v. Milner was perfectly free him to go home and submit to his father, or to from fraud; it was £500 to pay £1000 on the debite on the bridle." Shelly v. Nash, (3 Mad. 232.) cease of either of the parents; he paid the money, The Vice-Chancellor says, that in more modern and afterwards brought his bill, and was relieved times it has been considered “that it was a fit rule on the same ground with the relief against marof policy, to impose upon all who dealt with ex- riage brokage bonds. In those cases, fraud is not pectant heirs and reversioners the onus of proving the ground of relief; it is the example and pernithat they had paid a fair price, and otherwise to cious consequences." Brooke v. Gally, (2 Atk. undo their bargains, and compel a re-conveyance 34,) may be distinguished from this case, for there of the property purchased." With regard to fraud, the goods were advanced to an infant, who gave a much of the case is founded on the alleged fraudu- promissory note for the amount, immediately on lent design on the part of Hunter, but mixed with coming of age; but there Lord Hardwicke saysit is the question of extravagant price, and as the "The case the nearest to this is, the imposition rule is stated in Bowes v. Heaps, (3 V. & B. 117,) upon young heirs in the lifetime of their ancestors, "Mere absence of fraud does not necessarily de- who, though of full age at the time of the fraud, cide the validity of the transaction." In 1 Story yet, if his necessities, extravagancies, or the seEq. Ju., sec. 348, it is stated that "contracts of a verities of his parents made him submit to the imnature nearly resembling post obit bonds have in position, this Court will give relief merely to disthe cases of young and inexperienced heirs been courage attempts of this nature." There are, howoften relieved against upon similar principles. ever, some cases very near the present case. Two Thus, where tradesmen and others have sold goods are in Vernon, which, though not very fully re ported, bear on the alleged principle, that a mere sale is not within the general doctrine. The first is Lamplugh v. Smith, (2 Vern. 77.) "The plaintiff, with other young heirs, being drawn in to buy stockings and such like goods at an extravagant price, and to accept of assignments of bad securities, and jointly to enter into securities for the payment of the monies agreed on, the bill was to be relieved against those." There it was declared "that the plaintiff should be liable to so much only as came to his own hands, and should not be answerable for his companions, and therefore referred it to a Master to examine and certify what of the goods came to the plaintiff's own hands, and what was the real value thereof, and on payment thereof, and on re-assigning such of the securities as the plaintiff had, his security was decreed to be delivered up." Whitley v. Price is reported immediately after that case, and is to the same effect. It is stated that there "the plaintff was likewise a young heir, and had been drawn in to buy ribbands and braided wares, &c., at an extravagant price, and the case being the same in effect with the case immediately preceding, had the like rule." There is nothing in either of these cases to show that it was a dealing to raise money under colour of buying goods; it is simply stated that the plaintiff was drawn in to buy ribbands, &c., at extravagant prices. Freeman v. Bishop, (Barnard, 15,) is reported in a book of little authority, but the facts are very fully reported. Freeman, being between twenty-two and twenty-three years of age, became acquainted with Bishop, who was a jockey, and during the space of a twelvemonth's time, bought thirteen horses of him. His method was, not to buy above one at a time; but he used to ride them hard, soon grew tired of them, and then re-sold three of them to the defendant, at much lower prices than he contracted for. He paid no money down, but the whole was run upon credit, and at the time that a horse was bought, Bishop frequently lent him a little money too, and then a note was given for the price contracted for the horse, and for the money at the same time; but four of these horses were at high prices; 42 guineas was the price of some of them, and £40 the price of others; however, it was sworn that the horses were not sold to him at a higher price than they were really worth, except two of them, and even as to these, one of them was only sold at about two guineas above the market price, and the other about £3." "The whole money at last amounted to £300, and thereupon he consented to mortgage his reversion." "The bill was brought by Freeman against Bishop, to be relieved against this mortgage, on payment of what was due on account of the horses, and the money that was lent to him." "The Lord Chancellor was of opinion that the mortgage should only stand as a security for what was really due on account for the money lent, and on account of what was due for the horses. To ascertain what was due for the horses, the defendant was to have liberty to bring his quantum meruit; and so his Lordship was pleased to decree accordingly." It is true, that case is reported in a book of little authority, and one which Lord Mansfield said he would not allow to be cited, (2 Burr. 1142;) however, it is also reported, (2 Atk. 39.) Now, there there is a clear admis sion of an important proposition by Lord Hardwicke, who takes no notice of anything, save that in such a case the Court will enter on an inquiry of the real worth of the goods. Barny v. Beaks, (2 Ch. Ca. 139,) was manifestly a colourable sale to raise money, and therefore I shall not lay any stress on it: but, considering the general principle, the position of Lord Glentworth, and the value of the goods, the Court would abandon a part of its duty if it did not put this transaction in the way of inquiry. Here is a man, reckless in expenditure wholly unwarranted by his then property, giving security of a most oppressive character, not for his necessary support, but for the purpose of indulging a wild disposition, without present means, encou raged by another party, who obtained from him securities for £2500, while I cannot discover actual value of more than £500 given for those securities. This Court would give up a valuable jurisdiction, if it refused to grant relief under such circumstances. I do not see why it should abstain from relieving the plaintiff here; the case is much like that of Freeman v. Bishop. It seems, then, that, looking at this part of the case, the plaintiff is entitled to relief, and that the Court, either by reference to the Master or by an issue, will inquire the real value of the animals, though that may be difficult to determine. The plaintiff has failed in sustaining that part of his cross bill which alleges that the new securities put an end to his debt; but I think that nothing which occurred can act as a confirmation of it. Lord Glentworth seems all his life to have been an expectant heir, to have been in the same pecuniary difficulties, and to have been many years a prisoner for debt. Everything relied on as a confirmation of these securities, occurred while he was in prison. The defendant cannot rely on any dealings under those circumstances as confirmation, as it is said in Molony v. Lestrange, (Beatt. 413,)" All acts, to have the effect of con firmation, must be purely voluntary, and done with the intent to ratify that which the party knows be is entitled to disaffirm.” In the transactions here there is nothing like such confirmation. While on the one hand, therefore, the plaintiff has not shewn that this judgment was satisfied, on the other, Mr. Hunter has failed in proving that it was confirmed. I think it is a case for inquiry, either in the office or before a jury, as to the real value of the horses; and of course I must declare that the judgments can only stand as securities for the sum really due. This case is distinguishable from Peacock v. Evans, for there the original bill, which was dismissed, was to carry into execution an incomplete contract. Book 102, for 62 The declaration contained seven demises, all laid on the 27th of March, 1848. The defendants claimed to hold the lands in question under a lease executed by Sir John De Burgho, the father of the principal lessor of the plaintiff, to Joseph Gabbett, bearing date the 23rd of August, 1817, for 999 years, at the annual rent of £100, late carrency. The plaintiff impeached the lease, as not being within the leasing power contained in the marriage settlement of Sir John De Burgho. This settlement was dated the 6th of May, 1808, and by it the lands of Drumsally, Drumclogher and Dromalta, Coolready, Coolriery, Castleconnell, Derrylusk, Cloan Lackah, in the county of Limerick, and the lands of Fairy Hall in the counties of Limerick and Tipperary, were settled to the use of Sir John De Burgho for life, with remainder to his first and other sons in tail male. By this settlement, four distinct leasing powers were reserved as to the several denominations of lands contained therein, but the only power that was alleged to warrant the lease in question was the first leasing power, which related to the town and lands of Castleconnell, and to no other lands. That power was as follows:-"Provided always, and it is hereby agreed and declared, that it shall and may be lawful to and for the said Sir John De Burgho, during his life, by indenture or indentures, to be sealed and delivered by him in the presence of, and attested by, two or more credible witnesses, to limit and appoint, by way of demise or lease, all or any part or parts of the said honours, manors, lands, hereditaments, and premises hereby agreed to be settled, with the appurtenances, as consist of the lands of Castleconnell, with the messuages, edifices, buildings and appurtenances, to any person or persons whomsoever, for any life or number of lives, or for any term or terms of years, absolute and determinable on any life or lives, and either in possession, reversion, remainder, or expectancy, so as there shall be reserved on every such limitation or appointment, by way of demise or lease, the best or most approved yearly rent or rents, to be incident to the immediate reversion of the hereditaments so to be limited or appointed, that can or may be reasonably had or gotten for the same, without taking any fine, premium, or foregift for the making thereof, and so as there shall be contained in every such indenture of limitation or appointment, by way of demise or lease, a condition of re-entry for non-payment of the rents thereby to be reserved, and so as the person or persons to whom such limitation or appointment shall be made, his, her, or their heirs, executors, and administrators or assigns, shall not, by any clause or words to be contained in any such indenture, be made dispunishable for waste, or exempted from punishment for committing waste." At the trial of the cause before Mr. Justice Ball, at the Summer Assizes for the county of Limerick, 1848, the plaintiff went into evidence to shew that the lands demised by the lease of 1817 formed no part of the town and lands of Castleconnell, and, consequently, that the lease could not be upheld under the leasing power, which related only to those lands. Several witnesses deposed that the demised lands were called and known by the name of Portcrusha, and not Castleconnell, and that the lands of Cloon and Lacka separated the demised lands from the lands of Castleconnell. The plaintiff also gave in evidence ancient maps, and relied on them, as establishing that the lands demised formed no part of the lands of Castleconnell. This evidence was encountered, on the part of the defendant, by the production of several witnesses, who stated that they always heard the demised lands called Castleconnell. The plaintiff further contended that the lease in question was void, and called for a direction in his favour-first, because it contained a clause of surrender; secondly, because it gave permission to the lessee to cut and sell turf, thereby rendering him dispunishable for waste; and, lastly, because the number of years in the lease was absolute, and not determinable on lives; but the learned Judge refused so to direct the jury. The plaintiff then went into evidence to shew that the lease was made at an undervalue. At the close of the defendant's case, the learned Judge, with the concurrence of both parties, left the following questions to the | jury: İst. Whether the entire of the premises comprised in the lease of 1817 were, at the time of the execution of the settlement of the 6th May, 1808, part of the lands of Castle Connell? The jury found in the affirmative. 2ndly. Whether the said lands, or any part thereof were, at the time aforesaid, part of the lands of Portcrusha? The jury found in the negative. 3rdly. Whether the lease of 1817 was made at the most improved yearly rent which could be reasonably had for the same, at the time of its execution? The jury found in the affirmative. The learned judge then directed the jury to find a verdict for the defendants, reserving liberty to the plaintiff to move to set it aside, and to enter a verdict for himself, if the court above should be of opinion upon the whole of the case, that he was entitled thereto. A rule nisi having been obtained in Michaelmas term last, to set aside the verdict for the defendant, and to enter one for the plaintiff, pursuant to leave reserved, or for a new trial, Mr. Henn, (with him Mr.J.D. Fitzgerald, Q.C.) now showed cause. The mere introduction of a clause of surrender into a lease does not render it void. Lord Muskerry v. Chinnery, (Llo. & Goo. Sug. 185; Sugden on Powers, vol. 2, p. 359-364; App. 629.) Sheehy v. Lord Muskerry, (1 Cl. & Fin. N. S. 576.) With respect to the power to cut and sell turf, we have now a right to assume that the lands in question are part of Castleconnell, and, as it appears from the evidence, that those lands contained a large quantity of bog, it must be inferred that they could only be rendered valuable by cutting turf. Unless, therefore, a power like this was given, no beneficial rent could be received. A power to cut turf for sale may or may not be waste according to circumstances. If a bog be only useful as a bog, and forms the principal subject of the demise, the inference to be deduced from the authorities is, that a right to cut turf for sale shall be inferred. (See the cases collected in 1 Fur. L. & Ten. 313.) Cop. pinger v. Gubbins, (9 I. Eq. R. 304.) The lease is also impeached, because it makes the tenant dispunishable for waste, but the law will not allow that to be waste which is not any way prejudicial to the inheritance. Barret v. Barret, (Hetley, 35;) Grubb v. Lord Burlington, (5 B. & Ad. 507;) Anon. (1 Hog. Rep. 147;) Saunder's case, (5 Rep. 12). Massey v. Gubbins, (Longf. & Touns. 88,) is distinguishable from the present case, because there the bog was not the principal subject of demise. Mr. Bennett, Q. C. and Mr. Napier, Q. C. con tra. The words of the leasing power require that the term shall be absolute, and that the lessee shall not be made dispunishable for waste. A lease with a clause of surrender cannot be considered an absolute term, for the rent is not continued until the end of the demise. Muskerry v.Chinnery does not settle this question, for in that case the tenant for life was empowered to take a fine to any amount. The lessee was made dispunishable for waste, when a right to cut turf for sale was given to him. The making and selling bricks was held to be waste, and an injunction granted, even though the lease was made without impeachment of waste. Bishop of London v. Web, (1 P. W. 527.) When the surface or soil is taken away it is an injury to the inheritance. of another court taken upon the subject. Under these circumstances, we think that the verdict ought to be set aside without costs upon either side. Rule absolute for a new tria COURT OF EXCHEQUER CHAMBER.' SAMUEL LINDSAY, ASSIGNEE OF WILLIAM O'CALLAGHAN v. SAMUEL M. GOING. Insolvent Act, 3 & 4 Vic. c. 107-Sale by sheriff after arrest, and before vesting order-Title of assignee under vesting order. The sheriff seized, on the 23rd of April, under a writ of Fi. Fa., founded on a judgment on a bond and warrant of attorney. A. B. the insolvent, was arrested at his own request, at the suit of another creditor, before the sale, which took place on the 23rd of May. On the 15th of June he presented his schedule to the Insolvent court; on the fol lowing day the order was made vesting his property in the plaintiff. In an action of trover against the sheriff by the assignee, Held, that the sheriff was not liable under the 48th sec. of the 3 & 4 Vic. c. 107, and that the vesting order had no relation to the date of the arrest. Mr. J. D. Fitzgerald, Q.C. in reply.-The case went to the jury upon a conflict of evidence. The This was a writ of error from the judgment of the provision enabling the tenant to cut turf is confined Court of Exchequer. The action was trover against to the bog, and the strict construction of law with a sheriff for an illegal seizure under an execution respect to what shall be considered waste, has against the goods of W. O'Callaghan, an insolvent. latterly been relaxed. Lawton v. Lawton, (3 Atk. The declaration stated, "that William O'Callaghan, 14.) [Perrin, J.-Your difficulty is, that cutting before he became insolvent, and before the making turf for sale is primâ facie waste, unless it be shewn of the court for the relief of insolvent debtors of an that that was the manner of using the property, and order vesting the real and personal estate and you have not given evidence of that custom; at effects of the said William O'Callaghan in the proleast no question was left to the jury upon the visional assignee, to wit, on the 23rd day of April, subject.] The evidence has established that the in the year of our Lord, 1846, at Clonmel, in the whole of thing demised was bog. [Moore, J.-I southern riding of the county of Tipperary, was have very great difficulty in coming to the conlawfully possessed as of his own property of, [stat clusion, that an unlimited power of cutting turf for ing it fully], and being so possessed, he, the said sale, with a clause of surrender, would not have the William O'Callaghan, afterwards, and before the effect of causing a great injury to the reversion.] making of the said vesting order as aforesaid, casuThe court ought to be liberal in the construction of ally lost the said goods and chattels out of his pos leasing powers; the lessee can seldom know the session, and the same afterwards, and before the nature of them. Assuming the verdict of the jury making of the said vesting order as aforesaid, to to be right, and that the bog forms part of the lands wit, on the 23rd day of April, in the year 1845. of Castle Connell, we have brought our case within there came to the possession of the said defendant the words and intention of the first leasing power. by finding; yet the said defendant, well knowing BLACKBURNE, C.J. (stopping him). We will not the said goods and chattels to be the property of trouble you any further, for we are satisfied, after the said William O'Callaghan, before the making a careful examination of the evidence, that, without of the said vesting order as aforesaid, and of right violating any principle of law, or interfering with to belong to him and appertain to the said plaintiff any decided authority, justice requires the subject as assignee as aforesaid, since the making of the should be again considered by a jury, and I shall said vesting order as aforesaid, but contriving and therefore say no more upon this part of the case. fraudulently intending to injure the said William On the part of the plaintiff, it was sought to enter O'Callaghan before the making of the said vesting a verdict for him upon legal objections of very con-order as aforesaid; and the said plaintiff as assignee siderable importance, which have been taken to this lease as not being an execution of the leasing power. We are called upon, however, to consider these objections on hypothetical statements of a fact, and considering the difficulty of the questions which have been argued, we are of opinion that we ought not now to pronounce a final decision upon them, but should let the case go to another trial, thereby affording an opportunity either by a special verdict, or a bill of exceptions, of having the opinion as aforesaid, since the making of the said vesting order as aforesaid in this behalf, hath not, though often requested so to do, as yet delivered to them, or either of them, the said goods and chattels, or any part thereof, but hath hitherto wholly neglected and refused so to do, and afterwards, and after the commencement of the imprisonment of the said Coram Blackburne, C.J., Doherty, C.J., Pigot, C.B., Pennefather, B., Torrens, J., Crampton, J., Perrin, J.. Richards, B., Ball, J., Jackson, J., and Moore, J. William O'Callaghan, to wit, on the 21st day of May, in the year 1845, converted and disposed of the same to his own use, to wit, at Clonmel, in the southern riding of the county aforesaid, to the damage, &c." Plea, Not Guilty. At the trial the jury found a special verdict" That William O'Callaghan was, in the year 1843, a shopkeeper carrying on business in the town of Tipperary-that the said William O'Callaghan, on the 13th day of January, in the year 1844, executed to a person of the name of Jane Ryan, a bond and warrant of attorney, to confess judgment thereon, which bond and warrant of attorney bore date respectively the 13th day of June, 1843, upon which bond, judgment was entered up in the Court of Common Pleas, within 21 days after the execution of the said warrant that the said Jane Ryan proceeded to and Mr. Ryan, with him Mr. Napier, Q.C.-The did revive the said judgment in Easter Term 1845, question in this case arises upon the true construcand that a writ of fi. fa. founded on the said judg. tion of the 48th section of the 3 & 4 Vic., c. 107, ment, issued against the goods of the said William and to give effect to that section, this action must O'Callaghan, at the suit of the said Jane Ryan, be upheld. I fully concede that the vesting order under which writ of fi, fa. the said defendant on vests the property in the assignee. Under the the 23rd day of April, 1845, seized the stock in 48th section the insolvent is prevented giving trade in the shop of the said William O'Callaghan a bill of sale. Suppose a bill of sale had been -that after the seizure, and on the 16th day of given to this creditor, after the imprisonment, May, 1845, and before the sale which took place and before the vesting order, will it be contended on the 23rd day of May in said year, 1845, the said that the assignee could not bring trover to reWilliam O'Callaghan was arrested under a writ of cover the goods transferred by the bill of sale? capias ad satisfaciendum, which writ was issued at When a party goes into prison, that is an intimathe suit of one John Millner, and the creditor of tion to his creditors to stay their proceedings. [Penthe said William O'Callaghan, and was lodged in nefather, B.-Suppose he chose to lie in prison Clonmel gaol. And the said jurors upon their for six years, are the creditors to stay their hands oaths say, that said arrest under said writ of capias for that time? Or suppose a writ was put into ad satisfaciendum, was made under and by the the hands of the sheriff, and he held it for a condirections of the said defendant himself that after siderable time, and a venditioni exponas sued out, this arrest, and while said William O'Callaghan how long is the creditor who has his execution to was still in custody under said writ of capias ad be tied up? Perrin, J.-The bankruptcy cases satisfaciendum, and upon the 23rd of May, 1845, go on the principle that the sheriff seizes the prothe said defendant did, under the said writ of fi. fu.,perty of one which belongs to another.] Cooper proceed to sell, and did sell the said stock in trade and goods so seized, and convert the same into money, which the said defendant received. And the said jurors upon their oaths further say, that the said William O'Callaghan afterwards, on the 15th day of June, in the said year of our Lord 1845, and while he continued in custody under the said writ of capias ad satisfaciendum, petitioned the court for the relief of Insolvent Debtors in Ireland, for his discharge; upon which petition a vesting order was afterwards made, and bears date on the 16th day of June, 1845-that by the said vesting order, all the estate of the said William O'Callaghan was vested in plaintiff, who was appointed his assignee, and that the said William O'Callaghan was himself discharged as an insolvent. And the said jurors, upon their said oaths further say, that the said defendant had in his hands before and at the time of the said sale, certain civil bill decrees, and certain writs of fi. fa. founded upon judgments in adverse suits, and which civil bill decrees, and last mentioned judgments had been issued against the goods of the said William O'Callaghan. And the said jurors further say, that some of the said last-mentioned executions had been delivered to the defendant on the 12th of May, 1845, and others on the 21st of May, 1845, and that the said civil bill decrees were delivered to the said defendant on the 22nd of May, 1845." The jury then found the value of the goods on the declaration, aud concluded in the ordinary form. The court below, having given judgment for the defendant, the plaintiff brought his writ of error, to reverse that judgment. The principal point for argument noted was, "That inasmuch as the sale by the defendant was had under an execution which issued upon a judgment obtained on a warrant of attorney to confess judgment, and inasmuch as said sale took place after the commencement of the imprisonment of the insolvent, the plaintiff, as assignee of such insolvent, as the law stands, especially referring to the statute 3rd and 4th Victoria, chap. 107, sec. 48, was entitled to sue the defendant in tort for such sale and conversion." | v. Chitty, (1 Burr. 20, S. E.; 1 Sm. L. C. 239.) I rely entirely upon the construction of the 48th sec. [Pennefather, B.-In Groves v. Cowham, (10 Bing. 5,) the property was changed, and Mr. Smith appears to me to draw a conclusion from that case which is not warranted.] The 48th sec. sets aside the writs of execution, so as not to act upon the property. Becke v. Smith, (2 Mee. & W. 191); Burris v. Tousey, (3 Nev. & Per. 88). You must put the same construction upon the 47th and 48th sections. This case is not to be distinguished from Kelcey v. Minter, (1 Scott, 616.) The assignment has reference to the imprisonment, Guy v. Hitchcock, (5 Nev. & Man. 660,) and has the effect of a vesting order. Squire v. Huetson, (1Q. B. Rep. 308.) [Perrin, J.-Suppose the creditor applied for a venditioni, and the sheriff suggested that the insolvent was in prison, would the court grant a venditioni? Or if the sheriff returned that the goods were on his hands for want of buyers, would the court compel him to sell?] The execution creditor would be prevented from taking the goods of the party in prison, and the sheriff is equally bound to take notice of that fact. [Crampton, J.-It was conceded that Kelcey v. Minter would be exactly in point, if the action in that case was against the sheriff. I doubt that, because in the present case the sale took place before the vesting order, where |