should be equally paid and applied unto the survivors or survivor of them, upon the trusts thereinbefore declared as to their, his, or her respective shares, and in no other way whatsoever. This suit was instituted to administer the will of the testator, and the question now discussed was, whether the gifts to the children of his daughters and of his son Geoffrey were void for remoteness. Turner, Roupell, Malins, Teed, Toller, Selwyn, Humphries, and Nalder appeared for the different parties. VICE-CHANCELLOR KNIGHT BRUCE'S COURT. Ex parte Moss, in re DAVIES.-July 9. Practice-Equitable Mortgagee of Shares without a written Memorandum-Costs. A Deposit of Shares was made with Bankers to secure the Repayment of Money advanced by them to pay for the Shares, but no written Memorandum was made. Evidence was adduced that a written Memorandum Lord LANGDALE, M. R., said, a direction to pay on a future event, or at an indefinite period of time, implied was not usual in such Cases, according to the Custom of Business:-Held, that the Costs of the Petition of the a gift of that which was directed to be paid. There Bankers to realise the Shares should be given them, as were two classes of cases quite distinct from each other in the Case of a Deposit with a written Memorandum. -a gift to all the children of A. B. who shall attain a certain age was different from a direction to pay to This was the common mortgagees' petition, presented them as and when they shall attain a certain age. In for the realisation of the money, and liberty to prove the one case there was a distinct gift to those only who for the difference. The bankrupts were shareholders attained a certain age, and in the other not. In this in a company, and deposited their shares with the pecase the testator's property was to be invested, and the titioners, who are bankers, to secure sums advanced by dividend of one-third was to be paid to his daughter them for the purchase of the shares, but no written Nancy for life, not for her own use, but for the main-memorandum of deposit was made. Subsequently a tenance of herself and such children as she might fiat in bankruptcy was issued. An affidavit was filed happen to have. Here was a direct gift of the interest in support of the petition, in which it was sworn that for the use of the children, and they would have a right it was not the custom, in course of business on a deposit to be maintained out of that. After the death of the of shares, under the circumstances stated in the petition, daughter, there was a trust to pay, apply, and divide to have such a memorandum. the one-third part unto and amongst all the children of Bacon appeared in support of the petition.-[Knight his daughter lawfully begotten, not all who shall attain Bruce, V. C.-The only question appears to be as to a certain age, but when and as they shall severally and costs.] Although there is in this case no written merespectively attain the age of twenty-six years. It was morandum, it still does not come under the class of said that the direction to pay constituted the gift; but mortgagees' petitions without a written memorandum; the direction was," when and as," which might as well for, by reason of the circumstances stated in the affiapply to the payment only as to the gift. There was davit as to the custom and course of business, it comes an ambiguity, and it was necessary to look to the rest under the class of mortgagees' petitions with such of the will to clear it up. The testator proceeded to written memorandum; for it may fairly be said, that direct, that, in case either of such child or children, at the custom so stated has the effect of such memorandum. the time of his daughter's decease, should happen to be In Ex parte Sheppard (2 M., D., & De G. 431) a bankunder the age of twenty-one years, the trustees were to rupt had contracted to buy shares in a bank, the certi put out the principal of such child's share on Govern-ficates for which were left in the hands of the vendor ment or real securities, and pay the dividends and interest for the maintenance and education of the child. After that there was a power of advancement; and then followed the provision for survivorship, in which he directed that the principal trust-monies so given to the party dying &c. should be paid to the survivors. He would consider the case. Aug. 3.-Lord LANGDALE, M. R., said, the question in this case was, whether the gift to the children of the testator's daughter was void for remoteness, or whether they took a vested interest. Where there was a gift to such of a class or description of persons who should attain a certain age, those who did not attain that age must be excluded from the benefit of the legacy by the testator's description. The direction to pay implied a gift, and to pay at a certain age would prevent the gift from vesting in any object who did not attain the required age; but a direction to pay to an indefinite class when and as they shall attain a certain age did not necessarily, or at least so strongly, point to the exclusion of any, as in the case of such a class as before mentioned. The words might be only intended to postpone payment, without postponing the vesting. There being such an ambiguity as to the testator's meaning, it was necessary to look to the other parts of the will for an indication of his intention; and, looking to the other clauses of the will, he thought he must conclude, although it was very doubtful, that vested interests were given to children. as a security for the unpaid purchase-money, and the vendor was held entitled, as in the case of an equitable mortgagee, to an order for sale, in satisfaction of the unpaid purchase-money, with liberty to prove for the difference; the learned judge who decided that case concluding his judgment by saying, "The order must, therefore, be as prayed, with an allowance of the same costs as an equitable mortgagee with a written memorandum is entitled to." Brodrick, for the assignees. KNIGHT BRUCE, V. C.-I think that the costs should be given, as in the case of a deposit with a written memorandum. VICE-CHANCELLOR WIGRAM'S COURT. Upon an Information filed for the Administration of The Information charged the Defendants with a Breach of Trust, in confounding the Boundaries of the Charity Property with those of the Lands held by them as a Corporation, although the Act of mingling the Property was not proved to have been fraudulent, and would eventually prove beneficial to the Charity, in consequence of Building Leases having been granted by the Defend-allegations of fraud which had been made in the inants, upon the Supposition that the Property was their formation. As to the discovery of the documentary own:-Held, that no Costs should be given to the Cor- evidence of the title of the charity, it was equally a poration, but that the Relators, the Trustees, and the surprise upon the corporation as upon the relators. Schoolmaster should be allowed their Costs out of the Teed and Dickenson, for the schoolmaster. Charity Estates. Walker and Fooks, for the present trustees of the charity, pressed for the costs of the suit against the corporation. Semble, that in Cases of Informations against Trustees of a Charity, who are contending hostilely against a Corporation, where the Charity is represented by the At- Sir JAMES WIGRAM, V. C., said he had allowed the torney-General, the Court will not hear the Trustees counsel for the new trustees to be heard, in addition to unless they bona fide differ from the Relators. the other counsel, because he was informed that the King Edward VI granted certain lands, which had Master of the Rolls, before whom the case had oriformerly belonged to the priory of Bath, for the sup-ginally been taken, had allowed them to be heard. He port of a free grammar-school for the children of the hoped, however, this permission would not be drawn inhabitants of Bath, and also for establishing and main- into a precedent to enable trustees to be heard in suptaining a hospital for ten poor women of Bath. Of port of the case of the Attorney-General, in addition these charities the corporation were the trustees. In to those who were instructed to appear for him. The 1832 an information had been filed against the trustees general rule was, that the Attorney-General represented for the better regulation of the charity property, by a the charity, and that being so, a special case must be scheme. The information had been filed by the Soli- made out to entitle the other counsel for the trustees to citor-General, in consequence of a temporary vacancy be heard. The Court, in charity cases, had a discrein the office of Attorney-General. The Municipal Cor- tion. It would always receive information on behalf poration Act having passed, a supplemental information of a charity. There might be good reasons for hearing was filed against the charity trustees of the corporation the trustees when they requested to be heard. It of Bath. Upon the hearing, the Court decreed a re- frequently happened that the information was filed ference to the Master, to inquire into the property which against the trustees, and the Attorney-General probelonged to the charities; to inquire into the leases tected the charity, and secured the objects of it. The which had been granted by the corporation; to settle a relators might take different views of the charity scheme for the management of the school and hos- from the large body of persons interested in it. If the pital; and to take all necessary accounts. This refer- trustees differed from the relators, the Court would ence was opposed by the corporation, and the informa- hear them, because it secured the great object of all tion alleging that they had mingled their own property discussion, namely, to have the case fully argued before with that of the charities, especially a portion of the it. Were it not a case in which the Court was simply estates called "Warborough Mead," the relators com- administering the charity, but the charity was contendplained that the corporation had withheld valuable do- ing hostilely against the corporation, then, if the charity cumentary evidence from the relators until it was dis- were not to be considered as adequately represented by covered in the Master's office, from an entry in the the Attorney-General, some material alteration ought corporation books. The Master, by his report, stated to take place in this branch of the practice of the Court. the nature and extent of the estates actually belong- Where such was the contest, there was the less reason ing to the charities, and prepared a scheme for their to allow the trustees to be heard at all. He did not future management. The Master, amongst other wish to be understood as laying down any general rule things, approved of that part of the scheme by which upon the subject. It was the duty of the Court, in it was proposed that the boarders, whom the head every case, to take care that all parties were repremaster was permitted to take, should, with the other sented, and in possession of the facts of the case. boys on the foundation, be eligible for exhibitions to C. P. Cooper was heard in reply. the universities. The case now came on for further directions, when The Solicitor-General and Wray, for the Crown, submitted, that such part of the scheme as gave eligibility to the boarders, in respect of the exhibitions, should be varied, and that this privilege should be given alone to the poor boys on the foundation. They relied upon The Attorney-General v. The Ludlow Corporation, (2 Phill. 686). Sir JAMES WIGRAM, V. C., was of opinion that the scheme must be varied, as proposed by the counsel for the Crown; and ordered accordingly. Upon the question of costs, C.P. Cooper and W. H. Bennett, for the relators, contended, that the corporation ought to pay all the costs of the suit, (with a slight exception of the costs of an interlocutory motion and of the scheme), upon the ground that they, as trustees, had neglected to keep the charity property separate from that of the corporation, which had made it necessary to have a commission several years ago to ascertain the boundaries, and a decree had been made by the commissioners, which the trustees had not obeyed; that they had omitted to insert a part of the charity estates, called "Warborough Mead," in the schedule; and that the corporation had withheld information from the relators, as to the identity of the charity estates, until the inquiries were proceeding in the Master's office. Wood and E. F. Smith, for the corporation, resisted the payment of costs, in consequence of the failure of The following statute and authorities were referred to:-The Municipal Corporation Act, 5 & 6 Will. 4, c. 76; The Borough of Hertford v. The Poor of Hertford, (2 Bro. P. C. 377); East v. Ryall, (2 P. Wms. 284); The Attorney-General v. The Skinners' Company, (the Tonbridge School case), (Jac. 629); The AttorneyGeneral v. Caius College, (2 Kee. 150); The AttorneyGeneral v. The Burgesses of East Retford, (2 My. & K. 35); The Attorney-General v. The Drapers' Company, (4 Beav. 67); The Attorney-General v. The Corporation of Leicester, (9 Beav. 546); The Attorney-General v. The Earl of Stamford, (1 Phill. 737; 7 Jur. 359); The Attorney-General v. The Corporation of Ludlow, (2 Phill. 686). Sir JAMES WIGRAM, V. C.-Upon the moral equity of this case I am quite satisfied as to the conduct of the trustees. In principle I cannot help thinking that the case comes very near to that of The Attorney-General v. Caius College. Here the property of the charity has been improved in value by the acts of the corporation, to an extent which it might not have been if they had adhered to the letter of the trust. That there has been a breach of trust by the corporation of Bath admits of no sort of doubt. The corporation of Bath of 1849 is the same as existed in 1735, and, if they are to be treated as an individual, there is no doubt it is the same individual as that now before the Court who committed the breach of trust. That there has been a breach of trust cannot admit of argument. They were trustees of the charity, they had property of their own besides the charity land, and when called upon to account, when the commission issued in 1735, they were not able to say how much of the land was charity land, and how much of the land was their own. Certainly, one course which was taken in a case in which I was counsel was, that Sir John Leach first, and the Lord Chancellor (Lord Brougham) afterwards, said, "If a trustee cannot separate charity land from his own, I will take it all to be charity land; he is the party who has committed the breach of trust, and the charity cannot be allowed to suffer by his default. If I throw my gold into another man's crucible, and I cannot distinguish it, he keeps the whole; if he throws his gold into my crucible, and he cannot separate it, I must keep the whole." The principle is a very sound one, where that case happens, that the party who occasions the difficulty shall bear the loss, if any loss is occasioned by the irregularity. There is no doubt, therefore, that in 1735 there had been a breach of trust. Whether the intention of that fine of 50007. and 5007. was, that those two sums, or either of them, should be taken by way of substitution for the charity land, is a question which I need not now go into, because the Court, in point of fact, has determined, that, besides the 5000., which it appears the trustees would have had to account for but for the application they have made for the benefit of the charity--the Court had decided that the Warborough land shall be accounted for by the trustees. I have no discretion, therefore, about it. The Court has, in point of fact, determined that the 5000l. was not a substitution, and that, therefore, the Warborough land ought to be accounted for. There was a plain breach of trust. That breach of trust is, of course, to be accounted for in the usual way. It appears by a rent-roll of some kind, dated in the year 1780, or about that time, that Warborough Mead was then, in point of fact, known by name, but whether the full extent of the mead was known does not appear; but it was known that certain houses, which had been built upon land claimed by the corporation of Bath, were upon land which was the whole, or parcel, at all events, of Warborough Mead. If the trustees knew, by the decree of 1735, that Warborough Mead was part of the charity land, and if, intermediately between 1735 and 1780, they had discovered that that part of the property was Warborough Mead, they had discovered that which they were bound to disclose; and although I have not the least doubt that there was not a being then living who had the least suspicion that this was part of the charity property, yet they had books in which there were entries shewing that they held property not belonging to themselves. This continues down to the time of the account being taken under the decree made in this cause, and to that part of the case the observations of the Master of the Rolls, in the East Retford case, do, to a certain extent, no doubt apply. If, then, this were a suit confined simply to the restitution of Warborough Mead, there would be a strong case against the corporation for ordering them to pay the costs; but it is very hard upon persons in that position to be obliged to pay the costs. In the case of individuals, where a new trustee comes in, and a breach of trust has been committed, it is not the practice of the Court to make a new trustee pay the costs of a breach of trust committed before he has any concern with the property; yet, by treating the corporation as one continuing individual, living for ever, in point of fact, the Court, if it orders the corporation to pay the costs, is throwing upon individuals who are perfectly unconnected with the breach of trust the costs of a breach of trust committed a hundred years before any man in the corporation was born. That is very hard, but it is very hard also that the charity should have its funds diminished, which will be the case if the costs of a suit, by means of which the trust is restored, are to come out of the charity fund. And then the question comes to this, as between two innocent individuals, (for I am persuaded there has been no mala fides in the conduct of the present trustees), who is the party who ought to pay the costs of the suit ?-and, with a view to that question, I certainly shall look very carefully into the Caius College case and the East Retford case, before I give an opinion upon it. There is another point, which is so much one of principle, that I think it right to notice it. The counsel for the corporation observed, and I think truly, that, with regard to a great number of, if not all, the references to the Master, the Master, in point of fact, had adopted those conclusions to which the corporation, by their answer, desired the Court to come; as for example, that the lease had been beneficial to the charity, and the trustees ought to be charged, as to that, in respect of the breach of trust. I take it to be so; but I apprehend the rule of the Court is this, that where a trustee is guilty, even technically, of a breach of trust, and the property has been converted in a way which is not authorised by the terms of the trust, it is the right of the cestui que trust to elect whether he will take the property into which the trustees, by a breach of trust, have converted it, or whether he will charge the trustees for the value of the property, as if they had dealt with it in a lawful manner. But, in order to exercise that election, it is necessary he should know what is most for his benefit; and therefore the Court, as a matter of course, gives him a right to an inquiry. I am not speaking of an inflexible rule; but generally it gives him the costs of an inquiry, whether the property in that state in which it is found, or in which it ought to be, is more benefi cial, or as beneficial, to him, as an account directed for the purpose of ascertaining what ought to be the actual state of the property; but, as he is entitled to that inquiry, in order to enable him to know what election to make, and as that necessity arises out of the breach of trust, it does not follow that those who have caused the breach of trust are not to pay the costs of the inquiry; because, ultimately, the cestui que trust may think it more for his benefit to take the property in the state in which he finds it, than to seek to charge the trustees in a different manner. That is a matter of principle, and I must take great care, if I am right in that, not to make any order here which will throw any doubt upon that question. Then we come to another part of the case, which may be a very serious one. The trustees in this case, as I now assume, have, however innocently, in point of fact, been guilty of a breach of trust, which is to be repaired, perhaps, at their expense; but the persons who have succeeded in the two points I have already mentioned, namely, in reclaiming Warborough Mead, and also in establishing their right to the costs of an inquiry as to other matters-those parties are chargeable with those wrongful acts, but they are not to pay the costs of that part of the suit which seeks to charge them in a way in which they are not properly chargeable. It appears, with regard to the White Hart Inn, and some other property, that the relators lay claim to that, as being charity property. If they fail in that, and if the trustees are to pay the costs of the suit as far as the relators succeed, it is but common justice to say, that, so far as the relators fail in establishing their claim, the trustees shall have their costs. And with regard to the charges of fraud in letting the property to the friends of the corporation, and so forth, it appears to me to fall under the general rule, that where the parties, not content to rest upon the simple departure from the letter of trust, seek to affect individuals or a corporation with a charge of corrupt conduct, if they fail in establishing that case, although the Court may give them relief, still, if the case, instead of being dealt with in the way I have mentioned, has involved parties in expense in consequence of charges of fraud, it is a strong case to say that those persons shall not have their costs, if any have been occasioned by that frame of proceeding. The same observation applies to a number of charges with respect to improper dealing with the property, and with respect also to charges of mismanagement of the free school, beyond the fact, that there were not so many scholars as there ought to be, and also the extent of relief which was sought, and with regard also to so much of the suit as applies to the scheme; because, however the corporation were necessary parties, with a view to enable the relators to recover the property belonging to the charity, when the property has been recovered, all that goes beyond that is a dealing with the fund properly comprised in this suit, but still a part of the case with which the corporation of Bath have nothing to do. I will look into the cases I have mentioned; but how I shall be able to deal with the case if I should be of opinion, that, between the two innocent parties, the funds of the charity are not to be diminished-how I am to deal with the case, so as to sever those charges which have been improperly made against the corporation from those which were properly made, at present I have not the least idea. It appears to me to be an inextricable difficulty, and I must have the papers. March 22.-Sir JAMES WIGRAM, V. C.-This is an information for the administration of the charity estates of the free grammar-school at Bath, of the endowment of King Edward VI: it seeks to recover from the mayor, aldermen, and burgesses of the city of Bath, lands alleged in the information to belong to the charity, but which the corporation of Bath have for a long time past claimed to be, and dealt with as, their own. It seeks also to charge the corporation of Bath with alleged breaches of trust, and some of which are alleged to have been committed in order to favour friends and relations of the corporators, in leases, which have been granted by the corporation to certain lessees; and it asks for a scheme for the future administration of the charity estates. The rights of the parties with respect to the property are settled by the decree of the Court, so far as they can be settled by the present information, and a scheme has been approved of for the future administration of the charity estates; and the only question I reserved at the hearing of the cause on further directions was, in what manner the costs of the suit should be disposed of. In dealing with this question, I owe it to the corporation to say, that I think there is no ground for any charge of fraud in any of the individuals now constituting the corporation. A breach of trust, in confounding the boundaries of the charity land with the corporation land, has been established against the corporation of Bath; but it is manifest from the evidence that that breach of trust was committed before the decree of the commissioners in 1735. And although the right of the charity to Warborough Mead has been established, or at least discovered, by evidence coming out of the possession of the corporation in the present suit, and which must have been in their possession in 1780, I am satisfied that there is no ground for imputing to the corporation actual notice of the matter so discovered, however I may be compelled to fix them with constructive notice of the evidence. With respect to the damage sustained by the charity, in consequence of Warborough Mead having been treated by the corporation as their own, it is manifest that this, though a breach of trust, has been attended with great pecuniary benefit to the charity. The corporation, treating the land as their own, have let it upon building leases-a course which I cannot suppose the trustees of the charity would have taken if they had supposed it to be charity land. The result is, that, when the leases shall have fallen in, the charity will be in the receipt of an income of 10007. or 11007. a year, instead of the rental of land unavailable for anything but common agricultural purposes. Again, although the charity has established its right to part of the lands claimed by the information, it has failed to establish its right to other lands also claimed; and the charges of actual fraud made against the corporation are, in my opinion, wholly unfounded. Between the two innocent parties, which is the most favourable way of stating the case on behalf of the corporation, I cannot think it would be right to diminish the charity estates, by giving the corporation the general costs of the suit. And although the charity has elected to take the benefit of the leases irregularly granted by the corporation, I take it to be clear, that, in principle, the corporation is liable to the costs of the inquiry, which was necessary in order to enable the charity to make that election with advantage to itself. The circumstance that the charity property, the right to which has been established, has been improved in value by the acts of the corporation in respect of the matters complained of, may be a proper circumstance to be taken into account in disposing of the question of costs; but I do not think this is a case in which I ought to follow the decision in The Attorney-General v. Caius College, by giving the corporation costs. If the information had been simply confined to the establishment of the right of the charity to Warborough Mead, I might possibly have felt myself bound to follow the decision in The AttorneyGeneral v. East Retford; but in this case there are some costs which ought not to be borne by the relators, and some costs which the relators ought to receive. The costs of establishing the right of the charity to Warborough Mead, and the inquiries respecting the leases, ought, I apprehend, in strictness, to be borne by the corporation. The costs of the information, so far as it seeks to recover the White Hart Inn, ought, upon the same principle, to be borne by the relators. I put these cases as examples only. Again, the information charges the corporation with gross and wilful fraud, and asks accounts against the corporation, which the Court could never give, unless gross and wilful fraud was established. The costs, if any, occasioned by this part of the information, ought not to be borne by the corporation, but received by them. So also, in the circumstances of this case, ought the costs of the information relating to the scheme. The point, therefore, which I have considered has been, whether I should treat this as an information having several distinct objects, some of which have succeeded, and some of which have failed, and ascertain which costs in particular ought to be borne by each party respectively, and set off such costs against the other, (a course which is always attended with great expense and difficulty), or whether I ought to take a course, which is not unfrequently pursued by the Court in such cases, of giving no costs to the corporation, and allowing the trustees to retain their costs out of the charity estates. I think the right course is to give no costs to the corporation, but to allow the relators, the trustees, and the schoolmaster, to have their costs out of the charity funds.-Decree accordingly. COURT OF QUEEN'S BENCH. SITTINGS IN BANC AFTER HILARY TERM. MASTERS v. BUTLER and BAKER.-Feb. 24. The Court will not permit the Renewal of an Application to their Discretion, which they have refused under the same Circumstances and for the same Öbject. But where an Attachment for a Contempt of Court in neglecting to pay the Costs of a Reference and Award, and to perform the Award, had been refused, on the Ground that no Demand of the Money had been made, and that it was not stated that the Award had not been performed, the Court granted an Attachment for the same Causes, upon Affidavits that a Demand of the Money had been made since the first Application, and that the Award had not been performed. The Court granted an Attachment for not performing an Rule calling on the defendant Butler to shew cause why a writ of attachment should not issue against him for his contempt in not paying the sum of 126l. 14s. 8d., and for not making the road and drain, pursuant to a rule of Court of the 14th November, 1846, making the submission a rule of Court, the Master's allocatur thereon, and the award made between the parties; also calling on the defendant Baker to shew cause why a writ of attachment should not issue against him for his contempt in not paying the sum of 10047. 6s. 5d., and for not making the road and drain, pursuant to the said rule, the Master's allocatur thereon, and the award made between the parties. The award was dated the 31st July, 1846. The sums mentioned in the rule were the costs of the reference and the award. In Michaelmas Term, 1847, (Nov. 17), a similar rule had been obtained. It appeared, on that occasion, that the money had not been paid at the time of the Master's allocatur, but the plaintiff had given security for it. A demand had been made up upon the defendant Butler of performance of the award, by making the road and paying the money; but it was not shewn that the road and drain were not made. Affidavits were filed, on behalf of Baker and Butler, as to the impossibility of making the road and drain. In Hilary Term, 1848*, Watson and Arney shewed cause.-There is a preliminary objection, that fresh affidavits are not admissible. [Lord Denman, C. J.-We are of that opinion.] It is not shewn by the affidavits on which the rule was obtained that the costs have been paid by the plaintiff; and the Court will not grant an attachment unless there has been a clear contempt. (Price v. Philcox, 7 Dowl. 559, 561; Payner v. Hatton, 8 Dowl. 891). Sir F. Thesiger, (with him was Barstow), contra.The allocatur of the Master states what part of the costs is to be paid by Baker, and what part by Butler. Lord DENMAN, C. J.-As to the attachment against Baker, persons knowing the facts ought to bring them by distinct averment before the Court. The Master's allocatur does not shew that the money had been paid also with a true copy of the rule marked with the letter "A," (being the rule making the agreement of reference a rule of Court, dated the 14th November, 1846), and the Master's allocatur thereon thereunto also annexed; and that he then demanded of Butler the performance of the award, by making the road and drain in the award mentioned; and that, on the 24th May, he served the defendant Baker with copies of the award and plan, and rule with the Master's allocatur thereon, thereunto annexed; and that he then demanded of the defendant Baker performance of the award, by making the road and drain in the award mentioned, and by paying the 10047. 6s. 5d. in the said rule mentioned. Another affidavit made by the plaintiff, in which he was joined by his attorney, James Boor, referred to the award and rule as being also annexed to that affidavit. There was also an affidavit that the road and drain were not made. The exhibets marked on the award and rule, by the commissioner who swore the plaintiff to his affidavit, did not refer to the affidavit in which the plaintiff was the sole deponent, but to that in which he and his attorney were joint deponents. The memorandums of exhibet were as follows: "This is the award and plan mentioned and referred to in the affidavit of Jonathan Hooper Masters and James Boor, sworn before me this 1st day of June, 1848. "JOHN C. FUSSELL, a Commissioner" &c. "This is the rule, and Master's allocatur thereon, mentioned and referred to in the affidavit of Jonathan Hooper Masters and James Boor, sworn before me this 1st day of June, 1848. "JOHN C. FUSSELL, a Commissioner" &c. In Michaelmas Term, 1848*, Watson and Arney shewed cause.-First, the former rule against Butler was discharged as to the alleged contempt in not making the road and drain. This is a second rule for the same cause. (Rex v. Orde, note (a) to Reg. v. The Manchester and Leeds Railway Company, 8 Adol. & Ell. 420). [Wightman, J.-Here the case was defective at the time of the first application. The plaintiff had not paid the money, and therefore could not move for an attachment.] Where a party has had the power of doing an act required to be done, in order to found an application to the Court, and he has purposely omitted it, and on that ground fails in his application, he cannot make another application. (Reg. v. The Manchester and Leeds Railway Company, 8 Adol. & Ell. 413; Rex v. Barton, 9 Dowl. 1021; Reg. v. The Great Western Railway Company, 5 Q. B. 597; 1 D. & L. 874; 8 Jur. 107; Reg. v. Pickles, note (a) to Reg. v. Thomas, 3 Q. B. 599; S. C., nom. Reg. v. The Chapelwardens of Haworth, 5 Jur. 1122; Lord Denman, C. J., in Bodfield v. Padmore, note (a) to Rev. Eve, 5 Adol. & Ell. 785; Sanderson v. Weston, 8 Dowl. 652; Rex v. Harland, Id. 323; Ex parte Haseldine, 1 Dowl., N. S., 17; Parke, B., in Joynes v. Collinson, 2 It was ordered by the rule, that a writ of attachment was a defective statement of existing facts.] In Er D. & L. 449). [Coleridge, J.-In all the cases there issue against John Butler for his contempt in not pay-parte Thompson, (6 Q. B. 721; S. C., nom. Reg. v. The ing the sum of 1267. 14s. 8d., pursuant to the Master's allocatur thereon and the award made between the parties, but that the said attachment do lie in the office for a fortnight; and it was further ordered, that the residue of the said rule be discharged, without costs. at the time. PATTESON, J., concurred. COLERIDGE, J.-It is a condition precedent to issuing an attachment, that the money should have been actually paid; and it does not appear clearly to have been paid. A mere probability that a thing has been done is not enough to place a party in contempt. WIGHTMAN, J., concurred.-Rule accordingly. Upon moving for the second rule, an affidavit of the plaintiff, in which he was sole deponent, upon which the second rule was obtained, stated, that on the 17th April, 1848, he served the defendant Butler with a copy of the award, and which award was thereunto annexed, and with a true copy of the plan annexed to the award, and * Jan. 28, before Lord Denman, C. J., Patteson, Coleridge, and Wightman, JJ. Mayor, &c. of Stamford, 9 Jur. 159), which was an application for a mandamus to a corporation to make an order, the first rule was discharged on the ground that a demand had not been made; and the Court refused to grant a new rule, though a demand and refusa! had taken place since the discharge of the former rule. [They also cited Patteson, J., in Rosset v. Hartley, (n.(a) to Todd v. Jeffery, 7 Adol. & Ell. 522), and Dodgson v. Scott, (12 Jur. 521).] The plaintiff has a remedy for the costs by an action upon the award. Secondly, service and demand of performance of the award and service of * Nov. 22, before Lord Denman, C. J., Coleridge, Wightman, and Erle, JJ. |