of the parties with regard to something that has hap-mination of them or their umpire; and that where the pened, independently of their own acts, do not apply to the present case. This Court, I admit, is not in the habit of directing the production of cases and opinions which have been taken independently of such acts. But here the question is, as to this instrument of May, 1848, whether it is fraudulent or not; and the suit is instituted for the purpose of having decided what is the effect of the fraud, if fraud there be. And as the parties have themselves made their case by the alleged fraudulent act, then, inasmuch as the deed itself must be produced, the circumstances which are connected with the deed must likewise be disclosed.-Order for production. VICE-CHANCELLOR KNIGHT BRUCE'S COURT. PANY.-May 4 and 8. Contract on withdrawal of Parliamentary Opposition- agreement did not contain any express proviso on any matter in dispute, the arbitrators and umpire should have all the power of the Lands Clauses Consolidation Act, 1845: that the arbitrators appointed Thomas Eskridge their umpire, who duly accepted the office, and who, on the arbitrators failing to make their award, entered on his duty as umpire: that, by his award, dated the 31st December, 1847, he settled the value of the property taken at 51967. 15s.; and for compensation for severance, 8317. 5s.; and for compensation for loss of trade, 20007.; and for the purpose of enabling the Messrs. Wood to erect new buildings, 75001.; and he "also awarded that the said Company should make a good road or approach, on arches, from or near Sutton Bridge to the plaintiffs' factory yard, being the yard belonging to the plaintiffs' said cotton mills, for the purposes of business, in the line shewn on the plan annexed to the said award, from the letter A to the letter B on the said plan; and should also make a good and sufficient road and approach from the old Leek road, being the said turnOwners of Property on a Line of intended Railway with- pike-road, over Sutton Bridge aforesaid, to the said drew their Opposition to a Bill on an Agreement brewery, in the line shewn on the said plan from the that the Company should pay certain Sums and do cer- letter С to the letter D marked thereon; the several tain Acts, to be settled by Arbitration, and among them, roads or approaches to be respectively seven yards wide, that the Arbitrators, in fixing the Value, should decide and to be completed and finished by the said Company on suitable Approaches to the Property by a good Road in a workmanlike manner, and to be made according to over S. Bridge. The Umpire awarded a Sum, and the sections shewn on the said plan:" that the enjoydirected that the Company should make a good Road to ment of a free and uninterrupted passage along the the Property "from or near S. Bridge," and another turnpike-road called Mill-lane, and over Sutton Bridge, Road from a Road therein specified "over S. Bridge." is and was of great importance to, and materially enThe Company proposed to stop up the Road and destroy hances the value of, the plaintiffs' premises, and the the Bridge, making new ones; but the Court restrained same was taken into consideration by the umpire in them, on the Ground that it would be a Breach of Con-making his award, and is shewn in the plans deposited tract, and a Fraud on the Award. with the clerk of the peace, and in the plan annexed to the agreement of the 9th May, 1846, and in the plan to the award. The bill then charged that the Company alleged that they had a right to permanently obstruct and stop up the road and to destroy the bridge, which the plaintiffs charged they had no right to do: that the Company had commenced the formation of a pretended substantial road and bridge at a considerable distance from the road and bridge, and from the plaintiffs' premises, so as wholly to divert the turnpike-road from their premises and from Mill-lane into another and different turnpike-road, and in a totally different direction, pretending that the same is a sufficient substituted road, within the intent and meaning of the Railway Clauses Consolidation Act, 1845. The bill also charged that such obstruction, removal, and diversion are contrary to the plans deposited with the clerk of the peace, and the agreements and award, and not necessary to the formation and use of the railway, and that the restoration and continuance of the road and bridge at a proper elevation is compatible with the formation and use of the railway: that, on the plaintiffs discovering the intention of the Company, their solicitor gave them notice to desist, as application would be made to the Court of Chancery; but, notwithstanding which, they proceeded with their works. It was prayed that the Company, their servants, &c., might be restrained from diverting, obstructing, or interfering with the said road and bridge, and with the plaintiffs' free use and enjoyment of the same, in any manner contrary to the plans deposited with the clerk of the peace, and the plan annexed to the agreement, and the plan annexed to the award, or any of them; and that they, their servants, &c., might be restrained from diverting, obstructing, or interfering with the road and bridge, unless and until they should have first made, or caused to be made, a sufficient substituted road instead of the said road and bridge, as convenient for the plaintiffs and their said premises as the said road and bridge, or as nearly so as may be. In the affidavits, which were very voluminous, The bill, among other things, stated, that the plaintiffs, Charles and Richard Wood, were owners in fee of cotton mills at Sutton, in the borough of Macclesfield, in Cheshire, immediately adjoining Sutton Bridge, on or near the turnpike-road called Mill-lane, leading from Macclesfield across Sutton Bridge towards Langley; and were also owners in fee of a brewery adjoining the mills, and immediately adjoining to Sutton Bridge and the said turnpike-road: that, on the 26th June, 1846, two acts of Parliament were passed for making two railways therein specified, and certain persons were incorporated by those acts into the North Staffordshire Railway Company, with powers to make the two lines of railway, according to plans deposited with the clerk of the peace of the county of Chester: that both lines were intended to go through and interfere with the plaintiffs' property; and while both bills were pending, they presented petitions against them; but Ricardo, Copeland, and Broderick, three of the directors duly authorised, on the 9th May, 1846, entered into an agreement with the plaintiffs, that, in consideration of their withdrawing their opposition, the Company should do certain acts and pay such sums as should be settled by arbitrators or an umpire, as in the agreement mentioned; and "sixthly, that the said arbitrators, in fixing such price, shall at the same time decide upon suitable approaches to be made by the said Company to the whole of the premises of the said Charles Wood and Richard Wood, including the brewery, by a good road, on arches, from or near Sutton Bridge to the yard, for the purposes of business:" that the plaintiffs accordingly withdrew their opposition, and the bills passed; and soon after the passing of the acts the Company began their railway; and, for the purpose of fully confirming the former agreement, the Company, by an agreement dated the 1st April, 1847, appointed two arbitrators, and bound themselves to abide by the deter *That is, the instrument of May, 1848, the production of which the defendants did not resist. the Company did not deny their intention to deviate the road and bridge, as complained of. J. H. Palmer and Townsend moved for the injunction, contending that the intention of the award was, that Sutton Bridge should remain, and the new approaches to the mill to be with reference to that structure and the Mill-lane road: that the bridge was a county bridge, and not under the management of the trustees, so as to enable them to make any contract to sell it to the Company: that the acts 9 Geo. 4, c. 77, and the 5 & 6 Will. 4, c. 50, related to such structures, and shewed that the acts proposed to be done, and to be done in the way intended, were contrary to law. at least warranted by the 30th section of the Railway Act, which received the royal assent on the 26th June, 1846, and which says, "that the Company shall, and they are hereby required to make and execute, at their own expense, to the reasonable satisfaction of the bridgemaster of the county of Chester, all necessary works for the purpose of strengthening the bridge in the parish of Prestbury, in the county of Chester, numbered, in the said plans deposited as aforesaid for the said parish of Prestbury, 453, so as to enable the said bridge to sustain the additional weight which will be occasioned by the said Company raising the road leading thereto; and the said Company shall, and they are hereby required, at their own expense, to make good any damages which may be from time to time occasioned to the said bridge, or to the county length of road on each side thereof, by the formation of the said railway, or any works connected therewith." If it had been stated, before the making of the award, to the plaintiffs, or to Mr. Eskridge, that the Company intended to effect the operation now in dispute, the award would very possibly have been materially different. The plaintiffs, in my opinion, are entitled to say, that, as between them and the Company, the award proceeded on the basis, that, so far as the powers of the act authorised, the plaintiffs should be able to cross the river, for the purposes of business, over Sutton Bridge. If the proposed operations are such as not substantially to affect the plaintiffs as to the manner of crossing the water, very possibly it would not be right to interfere by injunction against the removal of the bridge. I think, however, that this position, upon the evidence, cannot be maintained. I think there is a substantial difference to them, as owners of the pro Malins and Dickinson, for the Company, opposed the motion, arguing that the umpire never could have intended that the bridge was for all time to remain; and even if he did, parties were not bound by any such intention. The new road would be equally convenient to the use of the mill, and far more beneficial to the public at large. [Knight Bruce, V.C.-An individual has a right to complain of an injury, or an imagined injury, by an act unauthorised by law, notwithstanding the general public may be benefited.] The approaches by Sutton Bridge were no part of the award, and the umpire had made no reference to the old road; but if he had, still the special act gave the power to do what was now proposed to be done, and which, when done, would be of equal service to the plaintiffs themselves, but to the public would be of a far greater degree of convenience than now existed by passing over Sutton Bridge on the point where it stands. The plans could not bind the Company unless they were specially referred to in the act of Parliament: the mere fact of their existence was nothing. (The North British Rail-perty in question, between the place of crossing the way Company v. Tod, 12 Cl. & Fin. 722). Townsend replied. stream and the place where the bridge stands. There may very possibly exist rights paramount to the rights of the Company and of the plaintiffs, and an authority lawfully and rightfully directing the proposed operations to be effected. The exercise of any such authority cannot be restricted or impeded by my order on this motion, which is one founded merely upon the private rights alleged to exist between the plaintiffs and the Railway Company. The proper order, in my opinion, is, to restrain the Railway Company, their servants, workmen, and agents, until further order, from diverting, obstructing, or interfering with the road and bridge, called Mill-lane and Sutton Bridge, and with the plaintiffs' free use and enjoyment of the same, in any manner contrary to the plan annexed to the award. May 8.-KNIGHt Bruce, V. C.—I have considered this case, and I am of opinion that the operation, or proposed operation, of the North Staffordshire Railway Company, to which the motion relates, so far as they include the removal of Sutton Bridge, and the substitution for it of another, (for it is part of a plan destined for it for that purpose), whether likely to be advantageous or disadvantageous to the community at largewhether based or not based upon scientific principles, will, if effected, be, as between the Company and the plaintiffs, a breach of contract, if not a fraud, on the part of the Company. By a breach of contract, I mean an infringement of Mr. Eskridge's award of the 31st December, 1847, which the argument on both sides has treated, as between the parties in the suit, as valid and binding; and by fraud, I mean a fraud upon that award, which contains a provision in these words:"And I also award, order, and determine that the said Company shall make a good road or approach, on arches, from or near Sutton Bridge to plaintiffs' factory yard, for the purposes of business, in the line shewn on the plan annexed hereto, from the letter A to the letter B on the said plan; and shall also make a good and sufficient road or approach from the old Leek road, being the turnpike-road, over Sutton Bridge, to the brewery, in the line shewn on the said plan from the letter C to the letter D marked thereon." Now, this provision, or the The information, at the relation of the road trustees, first part of it, must be considered as having reference after stating the substance of the act for the formation to a direct communication then existing between the of the railway, stated, that the said proposed railway old Leek road, on the right bank of the river, and Mill-between Guildford and Godalming was in progress: lane, on its left bank, by means of Sutton Bridge. And I am of opinion that both the roads, or the more northern at least of the roads, and approaches directed by Mr. Eskridge's award to be made must be determined by the place as laid down in the plan annexed to the award, with a view, although not solely, to the communication, for the purposes of business, between the plaintiffs' property and the left bank of the river, by means of that bridge. This view of the matter, if not directed, was THE ATTORNEY-General v. THE LONDON AND SOUTH- that a turnpike-road or highway, called "The Sheet Bridge Roads," leads from Kingston-on-Thames, through Guildford and Godalming, to Sheet Bridge, near Petersfield; and that the line of railway crossed the same at Peasemarsh, in a slight cutting of about one foot six inches; and that the Company intended to carry the road over the railway by means of a bridge: that the turnpike-road was used for considerable traffic between Guildford and Godalming, the tolls received_at the gate nearest Guildford, during the last year, being 6501, and at that nearest Godalming, during the same time, being 5007., making 11507., or thereabouts: that the distance between the two towns was only four miles; and that Guildford contained 6000 inhabitants, and Godalming 4000; and that a great portion of the traffic was carried on with those towns and the intervening district, which would by no means be interfered with by the proposed railway. The information then stated the act for managing the turnpike-road in question, and the 46th, 50th, 53rd, and 56th sections of the Railway Clauses Consolidation Act, 1845; and stated, that the special act of the Company did not contain any special provisions relative to the said turnpike-road at Peasemarsh; and "that, at the place where the said proposed railway is to cross the said turnpike-road, and for a very considerable distance on each side thereof, the said turnpike-road leads across a flat, and in a straight line; and that there is no necessity whatever, for the purpose of passing over the said proposed railway, that the said road should be diverted from the straight line, and that any such diversion must occasion considerable inconvenience to the public; but that, according to the aforesaid plans of the said Company, the said turnpike-road was not to be carried over the said proposed railway, in the straight line in which it now leads as aforesaid, but is to be diverted from the straight line, carrying it from the said present line of road, on the north side of the said railway, by a sharp curve, up to the said bridge, and, having crossed the said bridge, returning into the said present line of road again by another sharp curve." The bill then set out a long negotiation and correspondence between the road trustees and the Railway Company; the former proposing, that, to ease the curve, the Company should add a pier at each side of the bridge (which was already erected) nearest the road, and purchase some of the common land adjoining the road, and, by lengthening the new part of the road at each end of the bridge still further, ease the curve at the junction with the old road. It was then charged, that, unless the Company "shall carry the said turnpike-road over the said proposed railway in a straight line, without any deviation from its present course, they will not have substituted for the use of the public, at the place aforesaid, a sufficient road over the said proposed railway, as convenient for passengers and carriages as the said present turnpike-road, or as nearly so as may be; and that, under the circumstances aforesaid, the said Company, their workmen, servants, and agents, ought to be restrained from crossing, breaking up, cutting through, or in any way interfering with the said turnpike-road, or the communication thereof, or the traffic thereon, until they shall have caused to be made, and appropriated to the use of the public, a sufficient road over the said proposed railway, as convenient for passengers and carriages as the said present turnpike-road, or as nearly so as may be; and that, if necessary, the Company, their servants, workmen, and agents, ought also to be restrained by the like order and injunction from further proceeding with the said bridge and approaches now in course of construction by them as aforesaid, and from carrying the said turnpike-road over the said proposed railway by means of such bridge and approaches; and that the land on each side of the turnpike-road was common land of little value." It prayed the injunction accordingly. The affidavits were very voluminous, and wholly contradictory, as well as to the damage and inconvenience as to the expense of any alteration of the proposed line of road. Bacon and G. L. Russell moved for the injunction; and after referring to the affidavits, and to the 16th, 46th, 50th, 53rd, and 56th sections of the stat. 8 & 9 Vict. c. 20, offered to permit the deviation of the road, by adding the piers to the bridge, and lengthening the new road, so as to ease the curves on each side of the bridge; or to The take an order similar to that made by the Lord Chancellor in Kempe v. The London and Brighton Railway Company, (1 Railw. Cas. 495). Russell and Wickens, for the Company, declined the offer, but stated that the Company would, if no alteration or addition were made to the bridge, make the approaches in such a manner as any independent experienced person would say was right. The bridge was of the width, and in all respects according to the rule laid down by Parliament; and the Company, therefore, could not be called on to vary it. The proper tribunal for such a dispute was the railway commissioners, as pointed out by the 8 & 9 Vict. c. 16. learned counsel referred to the case of Cother v. The Midland Railway Company, (2 Phil. 469). KNIGHT BRUCE, V. C.-The manner in which this Railway Company intends to proceed in the operation in question is plainly stated, and the Court is compelled, for the decision is forced upon it, to come to the best conclusion on the materials before it, whether the proposed works or work, of which it can be said that the Company, in the exercise of their powers, are doing as little damage as can be, or of which it can be said that the road intended to be substituted for the road taken away, is, in the language of the 56th section, "equally convenient as the former road, or as near thereto as circumstances will allow." I find myself under the necessity of saying, that the impression made by the evidence upon my mind is, that the Company are not doing as little damage as can be, and that the road which they propose to substitute is not as convenient as the former road, or as near thereto as circumstances may allow. They are intending that which, in my view of the facts and of the law, is a wrong, and it is a wrong of a nature which I understand it to be the office of the Court to restrain. It has been said, and very justly, by Mr. Bacon, that all the Court can correctly decide, so far as it can decide upon such a motion, is, that what the Company are doing is not what the Court thinks right, whilst the Court cannot point out to the Company what they ought to do. I do not see how that is to be avoided, without disclaiming the jurisdiction alleged, unless by stating the reasons which induced the Court to come to its conclusions, or the manner in which it appears to the Court that that which seems an evil can be remedied. Now, the grounds upon which I proceed are, that the avowed plan of the Company makes a curve, or rather curves, upon the substituted road, inconveniently and unnecessarily sudden; that such suddenness might be removed, and the curve or curves made easier, without any unreasonable or heavy expense, and without any extraordinary difficulty; therefore it is easy for the Company to do so. There appear to me two ways of doing it, judging as well as I can on the subject, upon which I am bound to form an opinion, (though many other modes are suggested), viz. they had the power of increasing the width of the surface at the ends or the approaches of the bridge, in the manner suggested, with other works of a slight description which will accompany it a process which, according to my present opinion, subject to anything which the relators' counsel may wish to say, I consider the Company not bound to provide; or, if they do not think fit to adopt that course, they may, I apprehend, by lengthening the new portions of the road, requiring more land for the purpose from the common, make the curve sufficiently easy and sufficiently convenient for the public without altering or adding to the bridge. Because I think that that which is required for the public convenience may be effected in one of these ways, I think the present injunction ought to be granted; but not exactly in the terms of the notice of the motion, but subject again to hearing the counsel for the relators, if he wishes it, without prejudice to any application either party may desire to make to the railway commissioners, who have power given them from the Board of Trade. "The order will then be, "That the defendants be restrained from crossing, breaking up, cutting through, or in anywise interfering with the Sheet Bridge turnpike-road, or the communication thereof, or the traffic thereon, until they shall have caused to be made, and appropriated for the use of the public, a sufficient road over the railway, as convenient for passengers and carriages as the present turnpike-road, or as nearly thereto as may be, or until further order, without prejudice to any application by either party to the railway commissioners under the act; with liberty to apply." COURT OF QUEEN'S BENCH. SITTINGS IN BANC AFTER HILARY TERM. REG. . THE JUSTICES OF LANCASHIRE.-Feb. 8. An Order adjudicated the Settlement of a Lunatic Pauper to be in K., which was included in a Union, and ordered the Charges of Maintenance to be paid by the Treasurer of the Union :-Held, that the Overseers of the Parish and the Guardians of the Union might join in an Appeal against it, under Sect. 62 of Stat. 8 & 9 Vict. c. 126. The Pauper had become chargeable to a Township within a Borough which had a Grant of Quarter Sessions, under Stat. 5 & 6 Will. 4, c. 76, s. 103; the Order was made by Two Justices of the County :-Held, that the Appeal was properly made to the County Sessions. Quare, whether the Order was rightly made by Justices of the County? In Easter Term, 1848, Whigham obtained a rule calling upon the justices of the county of Lancaster to shew cause why a writ of mandamus should not issue, directed to them, commanding them to enter continuances and hear the appeal of the churchwardens and overseers of the poor of the township of Keswick, in the county of Cumberland, and the guardians of the Cockermouth Union, within which union the township of Keswick is included, against an order of two justices of the county of Lancaster, dated the 23rd September, 1847, adjudicating the settlement of Daniel Birkett, a pauper unatic, to be in the township of Keswick, and whereby the treasurer of the guardians of the Cockermouth Union was ordered to pay to the treasurer of the Manchester Union, in the county of Lancaster, the sum of 67. 2s. 6d., for the expenses incurred, on behalf of the last-mentioned union, in and about the examination &c., and the sum of 207. 18. 6d., the amount paid by the lastmentioned treasurer, within twelve calendar months, for the maintenance &c. of the said pauper. It appeared from the affidavits on which the rule was obtained, that, at the quarter sessions for the county of Lancaster in January, 1848, an appeal against the said order, by the churchwardens and overseers of Keswick and the guardians of the Cockermouth Union, was entered and respited, and that, on the 11th of March, 1848, notice and grounds of appeal, signed by the said churchwardens and overseers and the said guardians, was served on the overseers of the township of Manchester and on the clerk to the guardians of the Manchester Union. On the trial of the appeal, at the April quarter sessions for the county of Lancaster, it was objected, for the respondents, that the churchwardens and overseers of Keswick and the guardians of the Cockermouth Union had not a joint right of appeal; the court of quarter sessions was of that opinion, and dismissed the appeal. It appeared from the affidavits, on shewing cause against the rule, that the township of Manchester, to which the pauper lunatic had become chargeable, and from which he had been removed to the lunatic asylum, is situate wholly within the borough of Manchester; but a charter of incorporation and a separate court of quar ter sessions had been granted in 1838, under sect. 103 of stat. 5 & 6 Will. 4, c. 76; and that three courts of quarter sessions for the borough had been held since the making of the order. In Trinity Term *, 1848, Pashley shewed cause.-First, the court of quarter sessions for the county of Lancaster had no jurisdiction to hear the appeal. By sect. 62 of stat. 8 & 9 Vict. c. 126, after empowering two justices to make an order of maintenance upon the parish in which they adjudicate the settlement of the lunatic pauper to be, it is provided, that the guardians of any union or parish, or the overseers of any parish, township, or place affected by such order, may appeal against the saine, in like manner as if the same were a warrant of removal; and the power of a court of quarter sessions of a borough over appeals against orders of removal from places within the borough is exclusive. (Reg. v. The Justices of Suffolk, 2 Q. B. Rep. 72; S. P., Reg. v. The Justices of Salop, 1 G. & D. 146; 5 Jur. 1107). Secondly, sect. 62 of stat. 8 & 9 Vict. c. 126, gives the right of appeal either to the guardians of the union or to the overseers of the parish, not to both jointly. Whigham, contra.-First, the 62nd section of stat. 8 & 9 Vict. c. 126, gives the right of appeal to the parties who are affected by the order. The order is directed to the guardians of the Cockermouth Union, and the settlement is adjudicated to be in the township of Keswick, and therefore the overseers of the poor of the township, as well as the guardians of the union, are affected by the order. There is no inconvenience or impropriety in the officers of the township and the officers of the union joining in the appeal. Secondly, the application for an order for the removal of the pauper lunatic into the asylum ought to have been made to the borough justices; and then the appeal would have been to the borough sessions. This is not such an error as vitiates the appeal. Cur, adv. vult. Lord DENMAN, C. J., now delivered the judgment of the Court.-This was a rule for a mandamus to the justices at sessions to hear and determine an appeal against an order of two justices of the county of Lancaster adjudicating the settlement and directing the maintenance of a lunatic pauper. The order is made adjudicating the settlement to be in Keswick, and, that place being in a union, it is directed to the treasurer, commanding the payment of the maintenance-money. The magistrates appear to have refused to hear the appeal, because both the overseers of the poor for the parish, and the guardians of the union, have joined in one appeal as appellant parties. It is further said, on the one side, that the appeal ought to have been to the borough quarter sessions, and not to the county: on the other, it is said, that the order ought to have been made by the borough justices in the first instance; but that, having been made by magistrates of the county, the appeal was properly made to the county sessions. It is not necessary for us at present to express any opinion whether the original order was rightly made by county magistrates; but, being made by them, the appeal was clearly to the quarter sessions for the county: and this defect in the original order, if any, was not a reason for refusing to hear the appeal; but it was matter, if properly raised, to be discussed on the hearing. Nor, indeed, does it appear, that this objection was much, if at all, insisted on at the sessions. The question in the case, then, is, whether the appeal was rightly constituted as to the parties appellant; and the objection was not so much, that either the guardians or the overseers had not primâ facie a ground of appeal, as that their grounds, if any, were not joint, and, therefore, could not be made the matter of a joint appeal. Now, the appeal in this case included not only *June 14, before Lord Denman, C. J., Coleridge and Erle, JJ. Patteson, J., was at the Central Criminal Court. an appeal against the payment of the maintenancemoney, but also one against the adjudication of the settlement: an appeal of this sort necessarily must do so in effect, for the liability to the former must depend on the decision as to the latter; (Reg. v. The Justices of Middlesex, 5 D. & L. 9; 11 Jur. 803); and both the parties appellant were necessarily interested in the decision of both parts of the order. The treasurer of the guardians, on their behalf, was clearly, and by the statute, interested to appeal against the payment of the maintenance-money; and, if so, as that depended on the settlement, he was interested to dispute that adjudication. The overseers were clearly interested to get rid of the settlement, and also the payment of the maintenance-money, which depended on it; because, when their parish settled its accounts with the union, the burthen would ultimately fall on their rate. As, then, either party might have appealed separately, and each had an interest in the whole matter of the appeal, we can see no ground for objecting to the joinder of both in one appeal; and therefore the rule will be absolute. -Rule absolute *. Lord DENMAN, C. J., now delivered the judgment of the Court.-The question in this case was, whether an action for money had and received was maintainable. The plaintiff was administrator of Jane Vaughan, who died in March, 1843. The defendant was executor of Anne Vaughan, (sister of Jane), who died in March, 1844, and who was younger than Jane. Sometime in 1839, Jane Vaughan lent 150l. to Evan Evans, and received from him, as a security, his promissory note for 150l., payable, as it was said by the plaintiff, to Miss Vaughan. After the death of Anne, the defendant, as her executor, brought an action upon the note against Evan Evans, alleging it to be payable to the Miss Vaughans, and not to Miss Vaughan only; and as Anne survived her sister, she would have the right to enforce payment. Evan Evans settled the action, and paid the amount of the note to the defendant, who claimed as executor of the surviving payee. For the plaintiff it was alleged, that the letter "g" had been fraudulently added to the word " Vaughan," and that the defendant had wrongfully received payment from Evans of the promissory note, which really belonged to the plaintiff as administrator of Jane Vaughan, the payee, who furnished the consideration. are of opinion that the objection is well founded, and that the plaintiff cannot succeed in this form of action. VAUGHAN, Administrator of JANE VAUGHAN, v. MATTHEWS, Executor of ANNE VAUGHAN.-Feb. 24. Plaintiff was Administrator of J. Vaughan, who died in March, 1843. Defendant was Executor of A. Vaughan, (Sister of J.), who died in March, 1844, For the defendant it was contended, that, admitting and who was younger than J. In 1839 J. Vaughan the whole of the plaintiff's case, as stated by him, an lent 150l. to Ě. E., upon the Security of his Promis- action for money had and received could not be mainsory Note for 1501., payable, as it was said by Plain-tained, and that the plaintiff must be nonsuited; and we tiff, to Miss Vaughan. After the Death of A., Defendant, as her Executor, brought an Action upon the Note against E. E., alleging it to be payable to the Miss Vaughans. E. E. settled the Action, and paid the Amount of the Note to Defendant:-Held, that, admitting the Letter "s" to have been fraudulently added to the Word" Vaughan," and Defendant to have wrongfully received Payment of the Note from E. E., Plaintiff could not maintain an Action for Money had and received against Defendant. Assumpsit for money had and received by the defendant, as executor of Anne Vaughan. On the trial, before Williams, J., at the Lent Assizes at Chester in 1848, it was contended, that the defendant had received payment of a note which had been originally drawn payable to Jane Vaughan, and which had been altered, so as to appear to be payable to Jane and Anne Vaughan. The facts appear sufficiently from the judgment of the Court. A verdict was given for the plaintiff, leave being reserved to the defendant to move to enter a nonsuit. In the following Easter Term, (April 15), Chilton moved for a rule nisi accordingly. First, the plaintiff was bound to shew, first, that the note had been vitiated by the alleged alteration, so that the defendant could not recover upon it. (Master v. Miller, 4 T. R. 320; Davidson v. Cooper, in error, 13 Mee. & W. 343). Secondly, the cause of the present action was one upon which the plaintiff was entitled to recover. On a subsequent day, the Court granted a rule nisi; against which, in last Hilary Term†, Welsby and Townsend shewed cause.-Evans, the maker of the note, paid the money to the defendant under duress, and under a belief that the defendant was entitled to receive it; and, as to a moiety at least, he is discharged from the original consideration. In Master v. Miller, (4 T. R. 320), where there was a material alteration in the bill, Buller, J., (p. 340), said, "The defendant has got that money in his pocket, which, in justice and conscience, the plaintiffs ought to have; and therefore they are entitled to recover it in an action for money had and received." *See Reg. v. The Justices of Glamorganshire, ante, p. 453. † Jan. 25, before Lord Denman, C. J., Patteson, Coleridge, and Wightman, JJ. The defendant received the money in his own right in payment of a note, which, if genuine, would have been his property, as executor of Anne Vaughan. The payment was not in respect of a note to which, if genuine, the plaintiff would be entitled, nor can the defendant be considered as acting in any respect as his agent. The facts stated do not raise the legal inference that the money paid by Evans was had and received by the defendant to the use of the plaintiff. Evans may still be liable to the plaintiff for the money lent to him by Jane Vaughan, if not upon the note; and the defendant may be liable to refund to Evans the money paid by the latter under mistake or misrepresentation; but there is no contract, express or implied, between the plaintiff and the defendant. In the case of Marsh v. Keating, (1 Bing. N. C. 198), the defendants had in their hands the proceeds of the plaintiff's stock; but in the present case the money in the defendant's hands is not the proceeds of a note to which the plaintiff would have been entitled, but of another, which, if genuine, would have belonged to the defendant; and the cases are, therefore, distinguishable. If the defendant had obtained payment of the genuine note by means of a false or forged representation of authority from the plaintiff, the case would have resembled that of Marsh v. Keating, and the plaintiff might have adopted the agency, and treated the money in the defendant's hands as had and received to his use, supposing the defendant not to have been actually shewn to have himself committed a felony. The plaintiff in this case can only recover by adopting and affirming that which the defendant has done, viz. obtaining payment of a note payable to both the sisters, which would be inconsistent with his claim, and, in effect, destructive of it. We are, therefore, of opinion that a nonsuit should be entered.-Rule absolute. EASTER TERM. REG. v. THE INHABITANTS OF EALING.-April 28. Appellants against an Order of Removal stated, as their Ground of Appeal, that the Husband of the Pauper, |