Addams and Twiss then argued the case on behalf of the steam-tug. Sir J. Dodson, Q.A. and Jenner, contrà. JUDGMENT. INSOLVENT COURT, Saturday, March 11. Do the debts inserted in an insolvent's schedule bear Held, that they do not, Commissioner LAW, dis. Dr. LUSHINGTON determined that the counsel for | Limehouse-reach, when it is evident, and indeed man ought to do and what he ought not. For inthe steam-tug should begin. an admitted fact, that the steam-tug intended stance," the order of the pilot to take the vessel to to go to the eastward. A vessel at the time, the westward was improper, and the steam-tug was named Mary Clark, was proceeding to join a perfectly justified in casting off the Christina to pretier of vessels which lay moored in some part of vent that vessel running into the Mary Clark." That Limehouse-reach, and was drudging or steering; is a question for the Court to determine, from all Dr. LUSHINGTON.-It appears to me desirable, in but whatever might be the true description applicable the circumstances before it, and all the law upon the the outset of this case, to consider what is the true to the anchor at that time, unquestionably that vessel question to boot, therefore, it is very inexpedient to question submitted to me, and what I have to decide. was in motion. The steam-vessel then endeavours to attempt to palm upon the Court evidence of this Now the action is entered on behalf of the owners of pursue that course which the pilot, whether right or description, which, so long as it can form a judgment a steam-tug, alleging that, in pursuance of a contract wrong I will not now consider, determines to take, for itself, will not suffer parties to go into irrelavent entered into with the owners of the vessel proceeded namely, to the westward of the Mary Clark; and, considerations to influence that judgment. Upon the against, they duly fulfilled that contract in towing accordingly, he gives orders to the master of the whole of the case, then, what is my opinion? My her from Gravesend up to the Surrey Canal Dock. steam-tug to starboard the helm, and go to the west- opinion is, that I must pronounce against the claim. This brings me immediately to the point-a very ward. The first question then, in my opinion, of im- I am well aware that mischief may arise from pilots simple one-what was the contract to be fulfilled? portance is, whether the master of the steam-tug did having entire control and dominion over a vessel, and Upon that, I apprehend, there can exist but little or did not obey the order as soon as it was given;- giving, in some instances, orders against the judgdoubt, that it was to perform the ordinary duty of and the evidence here is conflicting, it being sworn by ment of masters of steam-tugs, who know every part towing the vessel with skill and fidelity, and in the several witnesses that the pilot did give that order in of the waters; but I am also well aware that it performance of that duty a just obedience to the an audible voice, and so audible that it was heard by would be difficult to fix a limit to the evil which orders of the pilot on board was to be observed, un- persons at a considerable distance. On the other would arise from having two counter pilots to naviless some very strong reason could be produced for hand, it is sworn by those on board the steam-tug gate one vessel-the master of the steam-tug exernot obeying such orders. On the other side, it is that the pilot only gave the order once, and it was cising his judgment as to one course, and the pilot as alleged that the collision with the Mary Clark took immediately obeyed. I cannot, looking at the evi- to another. The consequence would be two counterplace in consequence of the erroneous conduct of those dence, entertain much doubt in my own mind that acting powers, and the inevitable result would be on board the steam-tug; that loss has fallen on the this order was repeatedly given, but I am well aware, confusion and mischief. I therefore think on the owners of the vessel proceeded against, both on ac- that although it may be established in proof that the present occasion, though the pilot may not have count of damage done to the Mary Clark, and also suf order was given from on board the Christina, it is not exercised a sound discretion in the orders he gave, fered by the Christina herself. That this loss should be so easy to establish the fact that it was heard by those yet it is to my mind satisfactorily established that considered in the nature of a set-off, and having been on board the steam-vessel, who deny, as I have said, there was no justification for the conduct of the master occasioned by the employers of the steam-tug, the the fact of its having been heard by them, but they of the steam tug in refusing to obey and carry into present proceedings will not avail the owners thereof. admit they did hear it once; and I think it is per- effect those orders; and if that be the case, then he did Now I am of opinion that is not the right way to put fectly evident that they were exceedingly reluctant to not fulfil the contract on which he is suing; and if the question, because I think nothing in the nature obey it. I doubt exceedingly, if it were necessary to he did not fulfil the contract, it is impossible for me of a set-off can be contended to be operative against found a decision on this point, whether that order to decide that he is entitled to recover his demand, the owners of the steam-tug; but the true question is was obeyed by them or not. I am inclined to think and upon these grounds I must pronounce against this, Whether the contract has been fulfilled or not. it was not obeyed with that promptitude and alacrity the claim, and with costs. Now I have already said that I consider it to be part which the steam-tug, apart from considerations to of this contract to obey, generally speaking,-adverting come presently, ought to have done. But, however, to exceptions hereafter, but, generally speaking, to it was obeyed; the steam-tug starboarded her helm, obey the orders of the pilot. I have, upon former and proceeded to the westward of the Mary Clark; occasions, expressed a strong opinion of the necessity and then, without any order whatever, she makes a of adhering to this rule, and I see not the slightest signal to the Christina to put her helm to port, passes occasion to depart from the opinion I have before ex- to the westward, and casts off the tow rope. Now pressed. It is obvious that there is but one consi- here is, in my opinion, a direct disobedience of orders; deration upon which this rule must be supported and for it is precisely the same thing, in my judgment, maintained, namely, that the owner of a vessel is to disobey an order given in actual words, and to do responsible for the acts which may be done by a an act of this kind without any order at all, for the steam-tug, for the steamer is his servant. Therefore order had been to tow the Christina to the westward, what is done by the steamer, whether through error, and casting-off the tow-rope was disobedience to that negligence, or default in the performance of her duty, order. It is said, however, on behalf of the owners makes him responsible for the damage so done to of the steam-tug, that the barque could not have any other vessel. But from the consequences arising gone to the westward owing to the flood-tide running, from the errors of a pilot, whether wilful or otherwise, as it did, very strongly at the time, and she, out of the owners of a vessel, if there be a duly licensed necessity, cast off the barque when about ten fathoms pilot on board, are exempt, such exemption being for from the Mary Clarke at the same time loudly hailthe benefit conferred on account of the employment ing those on board to go to the eastward. Thereof a pilot. That is enacted for the general safety of fore it comes to this:-the steamer was able to go all vessels traversing the seas where pilots are re-to the westward, but the orders of the pilot had been quired. Now although obedience is the general duty obeyed at so late a period, whether heard or not, that of a steam-tug, I do not say there are no occasions the vessel in tow could not effect that object. Now, on which that duty may not be relaxed. But then, is that necessity proved to my satisfaction by the eviif it be shewn that due obedience has not been dence in this case? I confess it is not." I think given to the orders of the pilot, or if acts have those on board the steam-tug had not the slightest been done, without the authority of the pilot, ex right to cast-off the tow rope and persist in the inmero motu of those on board the steam-tug, they tention of compelling the barque to steer to the eastare bound, not merely to allege the exemptions, but ward. But it is said the pilot is altogether to blame; to prove it by the most satisfactory evidence; other that he ought to have gone to the eastward-that he wise this consequence would inevitably follow, that ought not to have gone to the westward. Now, assumthat general and most important rule for the protec- ing the fact to be so, I have yet to learn that unless tion of the owners of vessels having pilots on board certain destruction was likely to arise from going to would become weakened, and in many respects be the westward, those on board the steam-tug had a overthrown. Now exemptions there are; for instance, right to exercise any discretion at all, or overrule I am speaking now of a steam-tug, in the ordinary the order of the pilot. But there is not an iota of performance of the duty of towing, and my observa- evidence of any sort or kind to shew that the Chris¿tions do not, and ought not, to apply to steam-tugs tina might not have gone to the westward just as occupied in performing a salvage service, and who well as the steamer. Even the evidence referred to are called in to remedy the errors and misfortunes of as of so much importance, the affidavit of Mr. Fisher, pilots, or who are placed in circumstances in which the harbour-master does not state that any danger they are bound to exercise a discretion, and to shew a would accrue supposing the course originally adopted knowledge independently of the pilot himself. Neither by the pilot had been pursued to the end. It is not do I say that there may not be cases in which the stated that the tier of vessels were so much to the conductor of a steam-vessel, seeing a pilot acting in westward that it was impossible for the other vessels such a manner as to denote the certain destruction of to go more to the westward, and so pass by on that one or more vessels, would not be justified in holding side; and really the truth of the whole question his hand; but that is a case of extreme and absolute seems to come to this-that the eastward would have necessity, to be alleged in the act on petition, and to been the proper course to have taken, but it was perbe demonstrated by the evidence in the case. Hav fectly easy for the vessel to have gone to the westing made these observations as to the general princi ward. Now the affidavit of Mr. Fisher is that ple, let me now look at the circumstances and facts of a gentleman to whose opinion I should be of this case, so far as I think it necessary to examine inclined to pay the greatest deference when his them, in order to support and justify the decision experience was brought to bear in a proper and which I am about to pronounce. First, then, the fitting form. If he had told me what was the pilot was engaged by this vessel at the port of width of the river there, what was the exact place : Gravesend, but nothing at all occurs till the morn- in which the tier of vessels was stationed, and Cooke objected that notice had been given only of ing of the 1st of September, when the vessel was got what was the proper course according to the ordinary one ground of motion, and that therefore the parunder weigh, and, as it is alleged, at so early an hour custom and usage in which the vessels should pro- ties must be restricted and limited to that ground. of the morning as to be a violation of the Rules of the ceed, then his evidence would have been of great Mr. Commissioner Law.-As you come here withTrinity House, and thus to throw the whole responsi- materiality; but when a gentleman reads the plead-out giving notice of your first-mentioned objection as bility upon the pilot. I am of opinion that this is a ings, and endeavours to form a judgment from the to jurisdiction, you must confine yourself to the terms matter of no importance in this case whatever. The pleadings, I look at his evidence with the greatest of the point involved in the other ground of motion. pilotmay have been greatly in error, but that error doubt and hesitation, and I am still more inclined to That seems common sense. does not appear to me to affect the merits of this case, do it with doubt and hesitation when I find he venor to operate in the slightest degree one way or the tures to come to conclusions which are rather out of other. The vessels proceed the Christina being in his peculiar department, and to take upon himself to tow of the steam-vessel-till they are approaching tell, without giving sufficient reasons for it, what a Petersdorff moved for an order of the Court to discharge or rescind an order of the 21st of May, 1829, for the payment of the annual sum of 250, to the assignee of the insolvent's estate, sufficient moneys having been received by the assignee to satisfy all debts due from the insolvent, and all costs, and that satisfaction be entered up on the judgment, signed on the warrant of attorney executed by the insolvent in favour of the provisional assignee, on the insolvent's obtaining his discharge. The party on whose behalf he made this application was discharged by this Court in 1827. The debts in his schedule amounted to above 4,000l. In the month of December, 1828, Mr. James Best, of Chatham, an uncle of the insolvent, died, and left, under his will and codicils, to trustees, certain property therein named for the insolvent's use. Upon the 21st of May, 1829, upon the application of Arabella Hazard, the assignee of the estate, the Court made an order that the "trustees and executors of the will and codicils of the said James Best should, out of the annuity of 4001. bequeathed by the codicils of the will of the said James Best unto them during the life of, and in trust for, the said insolvent-debtor, make over and pay unto Arabella Hazard, the said assignee, for the general benefit of the creditors of the said insolventdebtor entitled to claim under the judgment entered up by order of the Court, pursuant to the statute in that behalf, the annual sum of 2501. part of the said annuity of 400!. by quarterly payments, as the payments of the said annuity should come to their hands or be received by them, the first quarterly payment of the said annual sum of 250l. to be made on the 24th day of June then next, and the said quarterly payments to be continued until the Court should make order to the contrary." That was the order made directing the trustees and executors of Mr. James Best to appropriate 2501. out of the annuity of 400l. for the payment of the debts in his schedule. He now sought to have that order rescinded on two grounds:-first, that the Court had no jurisdiction to make the order of 1829; and, secondly, that all the debts in the schedule had been paid and satisfied. If the Court found that the order of 1829 was not ill made, he should rely upon the other ground. Petersdorff submitted that he was entitled to shew the nature and extent of the insolvent's interest in the property bequeathed. Mr. Commissioner HARRIS said, that he remem bered that the point now proposed to be taken by the learned counsel, in reference to the jurisdiction of the Court and the validity of this order, was taken twentytwo years before, upon the identical bequest in this will, by gentlemen from the Court of Chancery, and fully argued before the Court. After some discussion, the COURT allowed the learned counsel to proceed. would see that a warrant of attorney was given to secure the debts in the schedule. The debts being paid, the object and end of that security was accomplished; and it would be inconsistent to allow interest on the judgment, for if the assignee should issue execution upon the unsatisfied judgment, it would not cover interest. interest was payable at common law, except where it Mr. Commissioner PHILLIPS asked whether he was aware that the statute 53 Geo. 3, c. 102, s. 17, provided "that interest should not be allowed on the judgment entered up against the prisoner, until the Court made an order that interest should run on debts bearing interest." The 22nd section of that Act enacted that interest should cease on the debts of an insolvent, unless his estate, present and future, be sufficient to pay all his debts and afford competent means for his future subsistence, in which case the Court might order interest to be paid. Mr. Commissioner LAW.-If that be so, it comes pretty near the case. Petersdorff.-If the debt itself would not bear interest, then the warrant of attorney would not; but if a portion of the debts secured by the warrant of attorney would bear interest, then to that extent the warrant of attorney would bear interest also; and if interest was allowed, the Court would set it aside to that extent. But in this case there would be this difficulty-whether the warrant of attorney was given to secure debts, and not debts with interest. Недрprehended that it did not include interest. During the progressive liquidation of the debts, there was no power to issue execution. If there had been any default on the part of an insolvent, then it would bear interest. If an insolvent was not a defaulter, how could interest accrue upon the terms of the warrant? Mr. Commissioner LAW.- The Act says every judgment debt shall carry interest. Is the judgment debt under this warrant of attorney an exception? That is the broad question. Speaking of the case of to-day it must carry interest. Petersdorff.-That judgment would be signed to secure the periodical payments of the annuity. Mr. Commissioner LAW.-There is no connection between those payments and the judgment. Petersdorff said, he apprehended the 17th section of 1 & 2 Vict. did not apply in this case. Petersdorff said that the schedule of the insolvent shewed an aggregate amount of debts, 15,000l. composed of three several classes. The Court was aware that the question of interest depended very much upon the nature of the debts. The insolvent had at the time of his discharge no property, but on the 10th of September, 1828, Mr. James Best, his uncle, the testator, died and left a will and codicils, and it was in respect of the 6th codicil that he thought the Court had no jurisdiction. The annuity of 400l. was intended solely for the personal support and maintenance of the insolvent. That codicil provided that the interest in the annuity and the produce of the 5,000l. were by the testator "intended solely for his personal support and maintenance, and shall not be assignable or transferrible, nor in anywise liable to or affected by any now-existing or future debts or charges, incumbrances, engagements, or acts of him the said Richard Best; nor shall any assignee, or assignee of the estate of him the said Richard Best, Petersdorff said, that this insolvent was discharged or any other person or persons whomsoever, under under the 7th Geo. 4, c. 86, and the sections referred or by reason of any bankruptcy or insolvency which has to not having been re-enacted in any of the subsehereafter or may hereafter happen, or any assignment quent Acts relating to insolvent debtors, shewed that or judgment consequent thereon, be entitled to claim the Legislature intended that the debts of an inthe said annuity." There were two authorities to show solvent were not to bear interest, except judgthat where these expressions were used, the property ment debts, by the 17th section of the 1 & 2 Vict. bequeathed was not assignable, nor transferrible, c. 110. He submitted that, under the circumstances, nor affected by existing charges or incumbrances. in which Best was brought before the Court, interest The words of the codicil shewed that the testator had was not payable. By the 3 & 4 Will. 4, c. 27, s. 42, in his mind a desire to guard against the power of interest was given by the statute in only two instances, this Court-"nor shall any person, by reason of any and at common law interest could only be given bankruptcy or insolvency which has or may hereafter as damages. By sec. 48 of 1 & 2 Vict. c. 110, where Cooke, contrà, contended that the judgment on the happen, on any assignment consequent thereon, be en- the Court directed money to be raised by mortgage or warrant of attorney could not be considered as fully titled to claim the said annuity." He thought that otherwise for the payment of debts, when the sale satisfied until interest had been paid upon the money it was impossible for any donor to introduce words was delayed there was an express provision that the so long withheld from the creditors. Respecting the more specific. He says that no charge upon the pro. Court might order interest to creditors on debts not power of this Court to make the orders now existing perty shall affect the legatee. He had now explained bearing interest. From that provision he should for the payment of the insolvent's creditors out of the the nature of the insolvent's interest in the annuity, infer that it was not the intention of the Legislature property bequeathed to him, there could be no doubt. and should next read the auditor's report, to explain to allow interest on debts generally. The effect of The ordinary principle of law with respect to alienathe circumstances under which the application was the original discharge in favour of an insolvent was, tion was this, that if a person thought fit to make a now made. [The learned counsel read and commented that the debt was to a certain extent extinguished, provision for the object of his bounty, he had the power upon the auditor's report.] He should now assume but not so far that all remedy was lost. The dis- of limiting its enjoyment by making the demise as a that the whole of the principal debts and the costs of charge from the debts in the schedule was subject to gift over, so that it should lapse to the general estate. the assignees had been paid, and should draw atten- such power as the Court might exercise as to future- But his learned friend said that they could deprive a tion to the cases, trusting that where the Court was acquired property. The Court had the power of di- life interest of one of its incidents by vesting it. in to exercise a discretion they would look to the strict recting the payment of these debts, but not with trustees; but that was not so. He had cited the case of legality of their acts. The validity of the order interest. The order made at the adjudication had Twopenny v. Peyton, 10 Sim. 407, but that case proved of this Court, which he now sought to rescind, reference only to the debts in the schedule, and the that no life interest was ever given. It was might be open to considerable doubt. There were warrant of attorney was given in respect of debts quite plain by that case that the bankrupt had no life some cases bearing upon the point to which he would eo nomine in the schedule. It was not given to secure interest. But that was not the question. The quesnow direct attention. The case of Twopenny v. Peyton, the debts and interest; but the amount of the prin- tion whether the original order was well made or ill 10 Sim. 407. In that case a testatrix bequeathed a cipal debts being paid, the warrant of attorney ceased. made was not the question. He believed that it was share of her residue in trust for her nephew for life; His application was, that satisfaction should be well made. The question before the Court was strictly and by a codicil, after reciting that her nephew had entered up on this judgment upon the warrant of at- a question of law. Whether property was acquired become a bankrupt and was insane, she directed the torney. The power of the Court was limited to the after the adjudication or originally under the assign. trustees to apply during his life the whole or such amount of the judgment; and when the Court was ment, there was no difference in its distribution; the portion of the fund, at such time and in such manner, satisfied that that amount was paid, its power ceased. principle was precisely the same. With respect to for the maintenance and support of her nephew, and The words of the 87th section were express, “That the payment of interest, the Court was aware that for no other purpose whatever, as they in their dis- before any such adjudication shall be made with re- there had always been a distinction in law between cretion should think most expedient. It was held by spect to any such prisoner, the said Court, or com- debts which carry interest and debts which do not the Court that the nephew's assignees were not enti-missioner or justices, shall require such prisoner to carry interest. He need not go further than this tled to any portion of the provision made for him. execute a warrant of attorney to authorise the enter- statute to shew that the Legislature contemplated The question in that case was, whether or not the ing up of a judgment against such prisoner in some two descriptions of debts. It was quite a mistake to assignees were entitled to any portion of the property one of the Superior Courts at Westminster, in the suppose that interest was first given by the 6 Geo. 4, left by the testatrix, and the Court decided that they name of the assignee, &c. for the amount of the debts c. 16. That Act only enlarged the power and regu were not. The next case was Godden v. Crowhurst, stated in the schedule of such prisoner." It was im-lated the exercise of it. In Ex parte Phillips, 4 Dead. 10 Sim. 643. A testator bequeathed his residuary possible to find language in an Act of Parliament & Ch. 84, Sir George Rose closes his judgment with estate to trustees, and after making a provision out more explicit. If it was intended to have included of it for the benefit of his son for life, and, after the interest it would have said so. son's death, for his wife and children, directed that if his son should assign or charge the interest to which he was entitled, or attempt or agree to do or commit any act whereby the same or any part thereof might, if the absolute property thereof were vested in him, be forfeited to or become vested in any person or persons than the trustees, should pay and apply the said interest for and in maintenance and support of his son, and wife, any child or children he might have, and for the education of such issue as the trustees should in their discretion think fit. Some years after the testator's death, the son became bankrupt. Held, that the trust for the benefit of the son, his wife, and children, was valid, and that the assignees were not entitled to any part of the provision. Mr. Commissioner LAW observed that in that case the wife and children came in, and that made a difficulty. Mr. Commissioner PHILLIPS.-The same words are used in the 92nd section. When it shall appear "that all the debts in respect of which such adjudication was made, have been discharged and satisfied, it shall be lawful," &c. to direct the warrant of attorney to be cancelled. Petersdorff said that it spoke of debts, and nothing more. It appeared to him that these sections were conclusive on the matter. In the Bankrupt Acts there was an express provision made as to interest. Where there is a surplus, interest should be allowed on the debts. If that was intended in the Insolvent Acts, why should it not have been so expressed? But supposing that the Court should decide to allow interest, then the debts must be classed, and it would give rise to various questions as to how far contract debts, and other classes of debts, would be entitled to bear interest. That was all settled in bankruptcy, but there was no statutory power given to this Court on the subject. Petersdorff said that was so; but supposing the Court should be of opinion that they had jurisdiction to make this order originally, the next question Mr. Commissioner LAW asked whether a judgwould be, whether any and what amount of interest ment debt which had been entered up did not of itself should be paid upon these debts. Upon this point carry interest under the 1 & 2 Vict. c. 110? That the Court was aware that the nature of the debts was was the only point in the case. If that judgment of great importance. There were three classes of carried interest, there was no necessity of classifying debts in this schedule, namely, judgment debts, bills debts. of exchange and promissory notes, and simple con- Petersdorff said that the judgment entered up tract debts, for which there was no security. It was under this warrant of attorney was a special judgimportant to consider, in the first place, whether any ment to accomplish a particular purpose. The Court 16, these words:" The question in this case depends JUDGMENT. carry interest, shall first receive interest on such debts those instruments. Our warrant of attorney is, sui at the rate of interest reserved or by law payable Wednesday, March 29. This day the learned generis, the mere creature of the Court, and by thereon, to be calculated from the date of the com- commissioners delivered their judgments serialim. the Court alone urged into activity. It appears to mission; and after such interest shall have been Mr. Commissioner PHILLIPS said ―This is the me but as a piece of machinery by which the Court paid, all other creditors who have proved under the ordinary motion, calling upon the Court to order holds a petitioner within its grasp. It may be here commission shall receive interest on their debts that the warrant of attorney may be cancelled, worthy of remark, that this statute never even from the date of the commission at the rate of 41. per that satisfaction may be entered up upon the alludes to the Insolvent Court till the 23rd seccentum." But before that Act, by the 5 Geo. 4, judgment, and the estate revested in the insolvent. tion. If, however, it is contended that the 17th c. 98, the surplus was not to be handed over to the The motion has been made at the bar upon two section is intended to apply to it, we must include bankrupt until all creditors whose debts were by law grounds. Firstly, that the Court had no power to the 18th also in its application. That section enuentitled to carry interest had received it according to make the original order; and, secondly, that the merates certain creditors who are to be deemed judgthe legal rate or the rate agreed on, if less than the debts set forth in the schedule had been duly satisfied. ment creditors within the Act, and gives them all the legal rate, and all other creditors who had proved The first ground seems to have been so little insisted powers and remedies of judgment creditors. All under the commission had received it at the rate of on, that its discussion is unnecessary. I must say, persons to whom money is made payable by rules of 4 per cent.: in both cases the calculation was to be however, that the case must be strong and urgent Courts of law or equity, or by orders of the Lord made from the time of proof. The usual rule was, indeed which should induce a Court of justice to di- Chancellor in bankruptcy or lunacy, are created by that all interest on debts carrying interest should vest property of the incidents belonging to it. This this section judgment creditors. If, therefore, the cease from the time of issuing the commission; yet motion has been resisted on the ground that the debts Legislature meant to give to our judgment the force in case of a surplus left after payment of every debt, in the schedule are not duly satisfied until interest of a judgment recovered, what so easy as to have said such interest should again revive and be chargeable shall have been paid on them,-a claim said to be le- so? But suppose we concede for a moment that on the bankrupt. (1 Atk. 244; 2 Coleridge's Black-galised by the 17th section of the 1 & 2 Vict. these two judgments are analogous, how are we to stone, 448, sixteenth edition.) That was the law c. 110, and now raised for the first time since treat the 92nd section? Does not the case of The previous to the passing of the 6 Geo. 4, c. 16, the enactment of that statute. The main question Attorney-General v. The Governor and Company of the which confirmed and enlarged that power. That Act at issue seems to be, whether the judgment entered Chelsea Waterworks, compel us to construe that secwas prepared by Eden, afterwards Lord Henley, and up upon the warrant of attorney in this court con- tion as virtually repealing the 17th? According to the his interpretation of the 132nd section of that Act verts the debts in the schedule into such judgment authority of that case, where a statute is repugnant was, therefore, of great weight. In his work on the debts as are contemplated by the section in the sta- to the purview, the proviso should stand, and be held Bankrupt Laws, p. 366, published shortly after the tute, which allows interest on all judgment debts at as a repeal of the purview, as, in a will, subsequent passing of that Act, he says:-" But now by the the rate of four per cent. per annum, from the time words supersede previous ones with which they are 132nd section of the new Act the bankrupt is of entering up the judgment, or from the commence- inconsistent. Though the 17th section gives to not to receive the surplus until all creditors ment of the Act. It is conceded upon all hands that judgment creditors four per cent. interest, the 92nd who have proved under the commission shall by the operation of the 17th section, and by it alone, section coming after it provides that a prisoner shall have received interest upon their debts, which is to this right to interest is created. It seems, therefore, be entitled to his discharge when his debts shall have be calculated and paid at the rate and in the order of the last importance duly to consider the construc- been paid, neither calling them judgment debts, nor following." Now the Court would see, by the 1 & 2 tion of that section, and see whether, read by the entitling them to interest. Unless by the force of Vict. c. 110, that the principle was recognised of light of other sections in the statute, it can bear our warrant of attorney incorporating all the credithere being a class of debts upon which interest was that which is attempted to be put upon it. By the tors with those named in the 17th section, there is to be paid. By the 48th section, the Act, which 87th section the insolvent is compelled, before ad- no provision in any unrepealed Insolvent Act for the gives a discretion to the Court for the disposal of judication, to execute a warrant of attorney au- payment of interest. In bankruptcy, indeed, in case property in certain cases, it was required, amongst thorising the entering up of a judgment in one of of a surplus, interest is allowable, but that is by staother things, to make their orders for the sale or dis- the Superior Courts at Westminster for the amount tute 6 Geo. 4, c. 116, s. 132. By the 53 Geo. 3, position of mortgage or other property, “upon such of the debts of such prisoner, or of so much as shall c. 102, s. 17, interest in certain cases was allowable terms and conditions with respect to the allowance of remain unsatisfied at the time of executing such war-in insolvency. But that section has not been reinterest on debts not bearing interest" as to the rant. It is to be remarked, that by this section the enacted. In bankruptcy, therefore, a statute was Court should seem just. It was clear from that judgment is directed to be entered up for the bare necessary for the allowance of interest, and in insolsection, therefore, that the Court might order interest amount of the debts or claims contained in the sche-vency we have no power whatever, unless we put to be paid, if they should think fit. If that power dule-not one word creating a right to interest. The what appears to me to be a forced construction on was given with respect to debts not bearing interest, judgment stands as a security for the amount of the the judgment entered up upon the warrant of attorwas it not strange that the Court should not have the debts, and of the debts alone; and these words are ney. In conclusion, if the Legislature meant to give power of making orders with respect to debts bearing expressly repeated in every section of the statute interest on all the debts in the schedule, I can see no interest. (The learned counsel here commented upon where the debts are mentioned, exclusive of the 17th, reason why in this very statute an enactment was a passage in 1 Cooke's Bankrupt Laws, 207.) But with one significant exception, to which I shall here. considered necessary to give interest to creditors on the question was that suggested by the learned Com- after refer. By the 92nd section the Court is em- debts not bearing interest in case of a deferred sale. missioner Law. The warrant of attorney was given powered to direct the warrant of attorney to be can- Yet that provision is to be found in the 48th section. as satisfaction or security for the debts in the sche-celled and satisfaction to be entered up upon the judg For these reasons I am of opinion that this motion dule, and upon that judgment was entered up. The ment, when it shall be made to appear that all the should be granted. warrant of attorney was given for double the amount debts, in respect of which adjudication was made, of the debts; and why for double the amount, if not shall have been discharged and satisfied. Not all for the purpose of paying the interest and covering the debts, with interest thereon, but the debts merely. all charges? In the case of a bond, you could not If interest was meant to be given upon debts not take beyond the penalty. An absolute judgment was bearing interest, why not have so expressed it ?—the entered np upon it, and under sec. 17 of 1 & 2 Vict. silence is all but conclusive. This section also gives c. 110, it bears interest for the purposes of this Act. the Court the power to revest the estate in the insolMr. Commissioner PHILLIPS.-You contend that vent when-and it repeats the words-"the debts shall the warrant of attorney given in this court for the have been satisfied." These words seem so clear as debts in the schedule converts them, when judgment to exclude all doubt as to their interpretation. But is entered up, into a judgment debt, which, as such, if there were any doubt as to the intentions of the under the 17th section, will bear interest. But if all Legislature, let us refer to the language of the section the debts are judgment debts, why should there be a immediately following, namely the 93rd, and see substantive provision giving interest only in a certain whether all ambiguity is not at once cleared up. This case-in the case of a delayed sale? 93rd section, providing against unintentional error as to the debts in the schedule, says, the prisoner shall be entitled to the benefit and protection of the Act, and the creditor shall be entitled to the benefit of all its provisions in respect of the actual amount of such debt, claim, or balance and "neither more nor less than the same." The previous sections, silent as to interest, cannot surely be said to create it; Mr. Commissioner PHILLIPS.-It seems to me but here are words virtually excluding it. It would that this is a question whether this Court ought to atreally appear as if words were selected studiously tempt to bring up before it the insolvent who has been barring any claim to interest, if the phrase "neither heard under a new jurisdiction in the County Court. more nor less" is to be taken in its ordinary accepta- Allow me to point out to you this clause in the Act of "The Judge of tion. How can these words be reconciled to a judg- Parliament, 10 & 11 Vict. c. 102. ment of this Court, virtually repealing them by add- such (County) Court shall appoint a time and place ing interest to the debt? But it is argued that for such prisoner to be brought up before such Court, this omission is cured by the operation of the 17th and the usual notices to be given; and that any section, which gives interest to all judgment debts Court to which any such petition shall be so referred not bearing interest. This then raises the ques- and transmitted shall have and possess the same tion, Is the judgment entered up upon the war-power and authority with respect to every such petirant of attorney analogous to the judgment referred tion, and shall make all such orders, give all such to in the 17th section? If it be, why not have said directions, and do all such matters and things requiso? Are we to supply the omission of the Legisla- site for the discharging or remanding of such priture? Let us see, however, whether this incorpora- soner, and otherwise, respecting such prisoner, his tion of these judgments is authorised by their coin- schedule, 'creditors, and assignees as the said Court for cidence. Have they the same character? Do they the Relief of Insolvent Debtors, or any commissioner possess the same incidents? Can they be set in mo- thereof, might make, give, or do, in the matters of tion by the same means? Certainly not. They differ petitions heard before such Court or commissioner in almost every respect. The interest given on debts under such Acts." It was quite clear that a comby the 17th section can be levied by writ of execution missioner could not grant this application under the on the judgment. Is it so with respect to the judg-old Act, but the Court might. Now, the County ment entered up upon the warrant of attorney? No; Courts possess, under the 10 & 11 Vict. c. 102, not the intervention of this Court is required to give it only the power of a commissioner but the powers of operation. A judgment under the section may re- the Court. A County Court is constituted this quire its revival by scire facias. In no case is that Court pro hac vice, and therefore this Court has no required on the judgment on the warrant. Here, to power to grant this application. go no farther, are broad lines of demarcation between Cooke said that was not inconsistent. upon the 17th section. He stood Mr. Commissioner LAW.-The real question is, whether we shall order satisfaction to be entered upon that judgment, and not whether we should rescind the order. There was nothing to prevent payment of debts, but, on the contrary, the statute contemplated it; but, independent of that, there was a ground for claiming interest under the 17th section. Petersdorff replied.-The question, he contended, was, what effect was to be given to the 92nd section. That provision overrides the statute. Mr. Commissioner LAW observed that his present impression was to abide by the practice, as it had been hitherto. They had never given interest after the date of the petition on any debt at all, and except so far as the question arose on the warrant of attorney, which seemed to him the only point in the case, there was no ground for altering the practice. The argument of the learned counsel (Petersdorff) did not go so much upon the ground of making this insolvent law an exception from the general law as to make this case an exception. The question that remained to be considered was simply this, whether the general law giving interest was to be followed, or whether this insolvent law was to be considered an exception. Mr. Commissioner HARRIS referred to the 92nd section, and observed, that his opinion was that the judgment under this warrant of attorney was a totally different thing from a warrant of attorney as between party and party. The CHIEF COMMISSIONER intimated that the Court would take time to consider its judgment. The able judgments delivered by the other learned Commissioners will duly appear. Tuesday, March 28. (Before Mr. Commissioner PHILLIPS.) Re PETER KIRKHAM. Rehearing-County Court-Jurisdiction. This Court has no power to make any order in any matter of insolvency after it has been entertained by the County Courts. Cooke applied to the Court, "that the insolvent be again examined touching his estate and effects." The insolvent had been heard by the County Court at Lancaster on the 4th of March, and, being opposed, was remanded for two months on the ground of fraudulent representations in the schedule; which, however, he was not required to amend. The application was not so much for a rehearing as for an examination before his discharge. Cooke. And so it appears to me. Application refused: the counsel indorsing on his brief, "Refused,-the Court not having jurisdiction to make such order." "The Judge of the County Court has jurisdiction to make the order." Nisi Prius. COURT OF EXCHEQUER. Guildhall, Friday, Feb. 11. (Before Sir F. POLLOCK.) THE MAYOR AND CORPORATION OF ROCHESTER v. LEE. (a) Port-duty on coals-Metage-Inquisition—5 & 6 Wm. 4, c. 63. In support of an immemorial claim by the corporation of R. for a port-duty of 4d. per chaldron on all coals brought into that port, which had been commuted, under the operation of the 5 & 6 Wm. 4, e. 63 (the Weights and Measures Act), into a toll of 3d. and half a farthing per ton, the plaintiffs put in the inquisition of the jury under that Act, which shewed that the duty so commuted was one for metage. Semble, that the inquisition did not support the claim for a port-duty. Such a claim, moreover, only applies to coals introduced into the port for sale, and not for private consumption by the importer. This was an issue directed out of Chancery, in which the plaintiffs, as owners of the port of Rochester in Kent, claimed to be entitled to the sum of 3d. and half a farthing, by way of a "port-due," for every ton of coals brought by water into the said port, the same being alleged to have been commuted under the provisions of 5 & 6 Wm. 4, c. 63 (the Weights and Measures Act), by a jury, in lieu of a duty of 4d. per chaldron, which had existed prior to the time of passing the said statute, and beyond the time of legal memory. The 14th section of the 5 & 6 Wm. 4, c. 63, enacts that, "for the purpose of ascertaining and providing for the fulfilment of all existing contracts, and fixing the payments to be made in consequence of such contracts or rents, * * * and in consequence of any toll, rate, or duty heretofore payable according to the weights and measures heretofore in use, at the general or quarter sessions of the peace to be holden in every county and city, an inquisition shall be taken before the justices assembled at such general or quarter sessions by the oaths of twelve substantial freeholders of the county or city, to be summoned by the sheriff to inquire into and ascertain the amount according to the standard of weight or measure by this Act established * * * with reference to the account of any toll, rate, or duty heretofore payable according to any weights and measures heretofore in use within such county or city. * * * And such inquisition, when taken, shall be transmitted by the respective clerks of the peace and mayors of the said counties and cities into his Majesty's Court of Exchequer at Westminster, and shall be enrolled of record, and shall and may be given in evidence in any action or suit at law or in equity, and the account so to be ascertained shall, when converted into the standard weights and measures, be the rule of payment in regard to all such contracts, rents, tolls, rates, or duties in all time coming." The Attorney-General appeared, with Martin, Q.C. Petersdorff, and Lewis, for the plaintiffs, and proved that from time immemorial the port of Rochester had existed, and that the corporation thereof had claimed and received certain port-duties of 4d. per chaldron on all coals brought by water into the said port, and there exposed for sale; and in the course of their case they put in an inquisition which had been taken and enrolled in due form, according to the provisions of the 5 & 6 Wm. 4, c. 63, s. 14. That document, however, when read, purported to be an inquisition into a certain toll or duty which had been claimed and paid by way of metage of coals brought into the said port, which had been commuted from 4d. per chaldron into one of 3d. and half a farthing per ton. On this, Sir F. Thesiger, Q.C. (with him Shee, Serjt., Deedes, and Bovill) submitted that this inquisition had put an end to the case of the plaintiffs. The claim of the corporation was for a port-due of 4d. for every chaldron by prescription, which they allege to have been commuted into a toll or duty of 3d. and half a farthing per ton. The inquisition, however, directs the jury to enquire into a claim for metage of coal brought by water into the city of Rochester and its precincts, and the jury say that a certain rate, toll, or duty of 4d. per chaldron, was payable before the passing of the Act on the Shee, Serjt. followed on the same side.-The plaintiff is clearly not entitled, except by the 5 & 6 Wm. 4, c. 63, which authorised the commutation of tolls formerly collected by measure into tolls now to be collected by weight. If the toll, before existing, is a city toll for metage, there is an end of the claim of the plaintiff; and this inquisition does shew that, and it therefore disposes of the plaintiffs' case. The plaintiffs ought therefore to be nonsuited. Deedes, on the same side.-This issue is framed with a view to a claim of a port-due, by virtue of the Ownership of the port of Rochester; but that which appears by the inquisition to have been commuted was a claim for metage, and metage is quite distinct from a port-duty, as appears from Laban v. Crisp, 4 M. & W. 320. There the claim was put forward in respect of all oysters brought in boats for sale into the port of London, and the distinction now contended for is plainly laid down. The inquisition is made evidence of the toll, rate, or duty there commuted, and of none other. There is no commutation of a port-duty, and the plaintiffs must fail now; but as the Act is only directory in respect of the holding of the inquisition, it is still open to the plaintiffs to mend their case by a good inquisition, if they have any such claim as that here propounded. In the present case the plaintiff ought to be nonsuited. Bovill, on the same side also.-There is a marked distinction in substance between this inquisition and the claim. The former is for services actually rendered and performed; but the latter is for services which the plaintiff professes to be ready to render. Martin, Q. C. contrà, submitted that the case might go on. The statute prescribed nothing as to the foundation of the claim, but is general in its terms, its sole object being to substitute weight for measure. The inquest was therefore only to find the quantities payable, and to commute them into a weight. All that the inquisition says accordingly is, that the claim of 4d. was on a certain toll, rate, or duty, payable before the Act was passed in respect of coals brought in vessels into the city of Rochester or its precincts. It says nothing of what this toll is payable for, though it speaks of metage. The inqui sition does not by any means conclude the case of the plaintiff on the authority of Jenkins v. Harvey, 1 C. M. & R. 877. This case was before the ViceChancellor, and it was open to him to decide the question on this objection; but he, nevertheless, sent it to be tried here, and it ought to be tried out, and the opinion of the jury taken. POLLOCK, C. B.-I hardly think that I can stop so important a case as this on any such point as that raised by this objection of a variance. I ought, think, to try it out on the merits, reserving the benefit of the objections to the party making them in the event of its being necessary to have recourse to them. The question is, whether, as the owners of the port, the plaintiffs are entitled to a port-duty; and the proof is, according to the inquisition, that the claim, whatever it was in former times, was commuted for a certain toll or metage, there being a commutation of 4d. per chaldron into 3d. and half a farthing per ton under the Act; and though I will not stop the case, I must say that it certainly appears that the objection, if it has any foundation in fact, is one which ought to prevail. I feel bound, however, to try the case, as it has been sent to me for the purpose of taking the opinion of a jury upon the existence of this alleged port-due, and as I don't feel quite clear on the point, I shall not stop the case. Objection overruled. At the close of the plaintiffs' case, Sir F. Thesiger addressed the jury for the defendant, it is to be taken as money, and supports the action for money had and received. Where deposits were paid by an allottee of shares in February 1841, and he was told in February 1842, on enquiring for the scrip, that the serip would shortly be issued, and the deed be presented for execution, but nothing more was heard of the scheme till June 1846, Held, that the action was well brought, and that the Debt for 1001. money had and received. Martin, Q.C. and Willes, for the plaintiff, stated that this was an action brought to recover the sum of 100l. which had been paid in 1841 by the plaintiff, as a deposit of 51. per share on twenty shares in the London and Westminster Water Company, which was projected in that year, and of which the defendant was one of the committee of management, and also one of the three trustees in whose name the account of the scheme was kept by the bankers, Jones, Loyd and Co. The prospectus stated that the capital of the company was to be divided into 60,000 shares, and that 51. was to be paid by way of deposit on each share, "in order to comply with the Standing Orders of the Houses of Parliament." This shewed expressly the terms on which alone the plaintiff had consented to enter upon the scheme; and if the defendant had applied those deposits to the payment of the preliminary expenses, he had broken through the contract with the plaintiff, and was bound to refund his money, the scheme having utterly failed, and there never having been any issue of scrip consequent on the allotment of shares, by reason of the scheme not being sufficiently patronised, though it was a bonâ fide scheme, and one which would have answered very well, no doubt, if it had been so patronised. These facts being proved, the plaintiff would be entitled to recover on the law as decided; but even if the money had not been improperly applied, the plaintiff would be entitled to claim back his deposit on the authority of Walstab v. Spottiswoode. The following evidence was then given :Thomas Mungrove.-I was assistant clerk to the London and Westminster Water Company, of which the defendant was a provisional committeeman in 1840. He attended the meetings of the board, and there were advertisements inserted in the Times on the 1st, 4th, 5th, 6th, 7th, 8th and 9th of January, 1841, under the direction of the committee. There was a form drawn up for the letters of application, and also for the allotment of shares. There was a meeting at the defendant's house for the allotment of shares in February 1841. After that I got the bankers' book from Jones, Loyd, and Co. and shewed it to the defendant. I had nothing to do with the scrip. The company never went to Parliament. I never saw anything of a deed. Cross-examined.-Some of the directors were at great expense. The scheme failed because it was not taken up by the public. It was a fair and promising scheme. The defendant was not a promoter of the scheme. He joined the company in December, 1840, I think. The letter of application was then put in. It differed from the following letter of allotment in the omission of the passages within brackets : London and Westminster Water Company. [Not transferrible.] allotment of shares to acquaint you that they have Guildhall, Saturday, Feb. 26. G. Palmer, a clerk of Jones, Loyd, and Co. proCLARKE v. CHAPLIN. (a) duced one of the printed receipts. It was the custom Allottee and provisional committeeman-Stamps- of the house to give one to all parties paying in deBanker's receipt-Cheque-Money had and received. posits on account of shares. The plaintiff paid in a The letters of application for shares and allotment only cheque on the Union Bank for 1001. on account of constitute the contract between the parties, and re-twenty shares in the London and Westminster Water quire a stamp when they are ad idem; but when the Company on letter of allotment No. 109, and I gave latter introduces a new term, the contract is not com- him the printed receipt. I have no doubt he gave me plete till the allottee has signified his assent to such the letter of allotment, but I have no recollection. new term of the payment of the deposit. I have not found it among our papers, and I have the others. The 100l. was credited to the account of no doubt it was handed over to the company with all the defendant and two other trustees. metage of coals so brought into the said city, and Where a letter of allotment differed from the application that is commuted by them into a payment of 3d. and half a farthing per ton. This inquisition does not support the claim of the plaintiffs, which is for a portdue. The jury have not enquired into the port-duty, if it ever existed, but a metage. The inquisition shews that no such claim as a port-due was ever com muted under the Act. (a) Reported by J. B. DASENT, Esq. Barrister-at-Law. in the insertion of the paragraph "not transferrible," Held, that no contract was established by those letters, A banker's receipt does not require a stamp; and where (a) Reported by J. B. DASENT, Esq. Barrister-at-Law. The bankers' receipt, which was in the usual form of such documents, was then tendered. It bore an agreement-stamp of 17. 15s. the ground of its not having the proper stamp. It is Sir F. Thesiger, Q. C. objected to its reception on stamped as an agreement, but it ought, as we con tend, to bear a receipt-stamp. It is said that the 1 Court above has decided that this instrument does introduces a new stipulation into the contract, and POLLOCK, C.B.-As the point depends on the proof of the letter of allotment, and none has yet been put in by the plaintiff, it is unnecessary now to decide your objection; it will be open to you to revive it at a future stage of the case. At present it is sufficient for me to say that I shall receive this receipt. G. Palmer, recalled.-I don't know whether we destroyed the letters of allotment or sent them to the company. The usual course is to do the latter. I don't remember seeing any letter of allotment when the plaintiff paid his money. I only presume that there was one as it would be in the usual course of business that there should be one. Mr. Bellinger, clerk to the Union Bank, proved that the plaintiff's cheque for 1001. was paid to the clerk of Jones, Loyd, and Co. on the 8th of February, 1841. Mr. Blanch, the secretary to the company, proved that the defendant was a member of the provisional committee; that there was a resolution came to that all moneys should be paid into the bankers' in the names of the defendant and two others, as provisional trustees; and that all cheques should be signed by those three and countersigned by the secretary. Only 1,100l. were paid in by the allottees, a sum which was quite inadequate to enable us to go to Parliament; and no scrip was ever issued. A deed was prepared, but it was not put forth for signature; and the scheme ultimately fell to the ground. In February 1842 the defendant gave me this letter from the plaintiff to answer. This letter contained a statement that on that day twelve months the plaintiff had, at the instance of the defendant, taken shares and paid his deposits thereon in the company, and demanded to know when the shares would be issued. This letter was answered by the witness, to the effect that the directors hoped to go to Parliament shortly, and that there would be a new allotment, &c. &c. Nothing, however, was done, and the deposits were spent in defraying the preliminary expenses. Cross-examined.-I believe that no shares were allotted privately, but such may have been the case. I believe letters of allotment were sent in each case. The letters of application and of allotment were not stamped. Martin called for the letter of allotment. Sir F. Thesiger.-I have none. You have not proved that there was any sent to the plaintiff; and if there was, you have not shewn that he parted with it to the bankers; nor if he did, that they sent it to us. In no point of view, then, are you entitled to call for it or to give secondary evidence of it. POLLOCK, C.B. however, having allowed secondary evidence to be given of the letter of allotment, the case for the plaintiff there closed. Sir F. POLLOCK, C.B.-You might say the same of a bank-note. If it be taken as money, it is money; and so of a cheque. If I were to hold the reverse, I should shake the commercial transactions of this city very considerably. sary in consequence of the peculiar form of the bank- Sir F. Thesiger. I contend that the stamp required is of a different denomination. It bears & stamp of 17. but I say it requires an agreement-stamp of 11. 15s. The point, moreover, does not arise. Martin, Q.C.-There is no evidence that the plaintiff ever had a letter of application, and the allotment does not require a stamp alone. The plaintiff says in his letter that he applied personally to the defendant for shares. POLLOCK, C. B.-There can be no doubt that the plaintiff is entitled to recover. It was decided in Nockells v. Crosby, that when parties set on foot a scheme which failed, and they did not go on with it, they could not apply the deposits towards the expenses incurred up to that time. Here the plaintiff moreover says, I paid my money for the Standing Orders, and have a right to have it back again, as you never got so far. In point of law, I think the directors Sir F. Thesiger, Q.C.-Jones Lloyd, and Co. were had no right to apply the deposits to the liquidation of not the agents of the defendant to receive the cheques, the preliminary expenses, and my direction to the jury but cash; and when the plaintiff takes the cheque to is to find a verdict for the plaintiff; but it may be a them, he constitutes them his agents to receive the question for the jury whether the money was paid on money on it, and to convert it into money and pay it a consideration which has failed. If so, then the over to the defendant, and there is no evidence that plaintiff must have a verdict. The next question is, that was done. In the 5th place, the plaintiff has whether the cheque was paid to and received by not shewn a compliance with all the requisites which Jones Lloyd, and Co. as money, and whether the would entitle him to sue us on a failure of considera-jury would infer from those facts, in their knowledge tion. He must shew that he has complied with all of business, as carried on in London, that the money the terms which were required of him on his part. found its way to the credit of the defendants' acThat was so proved in Walstab v. Spottiswoode; and count. As to the allegation that the cheque was not the plaintiff there shewed that she applied for scrip, money, I think it would be a most mischievous thing and offered to execute the deed. Here there is no to throw any doubt over the question, and I shall hold application for scrip or offer to sign the deed, nor that it is to be considered as money. Then I think any inquiry whether any was prepared. The plaintiff, that the letter of application and allotment ought to be therefore, is not entitled to say, " Give me back my received without a stamp ; and though I am not bound money," and he must be nonsuited. to state the grounds of my decision, I will do so. I am disposed to think that the true view of the question is this-If it be important to decide whether there was any letter of application or not, I should say there was. There is evidence on both sides. letter of the plaintiff speaks of a personal applicaSir F. POLLOCK, C.B.-Vollans v. Fletcher is in tion, and yet the notice to produce treats of the point against you; for I see, on looking into the form letter of application: but I think it somewhat immaof application as given in the advertisement and the terial, for, in truth, there was no contract here at all letter of allotment, that the latter does contain two until the plaintiff paid his money, and the receipt was new stipulations. It stipulates, 1stly, that " this given; for the letter of allotment introduces an imshall not be transferable;" and, in the 2nd place, portant clause into the terms of the letter of applicathat the production of the letter of allotment would tion. As I think the receipt is receivable, there is be necessary on the payment of the deposit-neither proof of payment; and the question is, whether the of which conditions formed any part of his applica-jury think that payment was made on a failure of tion. The two letters were not, therefore, ad idem; consideration. But it is contended that the plaintiff for the motion contains two terms which are not in must do some act to complete his right of action. I the application. do not think so; for the question is, whether, in June 1846, when the action was brought, it was not certain that the scheme was utterly abandoned, and that no scrip was ever intended to be issued. To be sure, a deed was prepared, but it was never put forth to the public, though the secretary wrote to the plaintiff to say that he expected shortly to call on him to execute it; but that was in 1842, and, having waited till 1846, I think the plaintiff has a good cause of action. Verdict for the plaintiff, 1001. Ogle, on the same side.-The plaintiff cannot give secondary evidence of the contract, on the authority of Rippon v. Wright, 2 B. & C. 448; and if he could, there is not any stamp on the documents constituting the contract. Ogle. The variances pointed out are immaterial. As to the first, the contract being made with the plaintiff and no one else, could not be transferable, and therefore the idea of transferring it would be absurd. POLLOCK, C.B.-I can only say that I have tried many cases in which the allotment-letters have evidently been transferred. Ogle.-This variance, however, is not the less immaterial, nor is the other of a different character; and it is submitted that the two letters being substantially identical, they form the contract, and require a stamp, so that the terms of it cannot be proved by secondary evidence. There is no proof that the plaintiff ever had a letter of allotment; he might have got his shares personally from the defendant, as he says in his letter. This is, moreover, a contract, and a debt exists, so that the bankers' receipt requires a stamp. THE LEGISLATOR. Summary. The Sir F. Thesiger, Q.C. then submitted that the plaintiff ought to be called, as no case had been made out for money had and received, the ground of which was the failure of the consideration arising out of the contract alleged to be entered into, and in respect of which the money was paid by the plaintiff. In the first place there was no evidence of that contract it. self. The plaintiff had not sufficiently traced the Mr. EWART'S Court of Criminal Appeal Bill letter of allotment, and of application to the defendhas been postponed. Probably it will be perant and to himself, in order to shew what the conmitted to await the arrival of Lord CAMPBELL'S tract was, and to let in secondary evidence of it. Assuming, however, that there is sufficient evidence POLLOCK, C.B-Do you mean to contend that if Bill from the Lords, and then both may be of contract, and that secondary evidence has been you pay by arrangement money to an account with a referred to a Select Committee. The Governgiven of it, and that it is constituted by the letter of bank, that the banker's receipt would be inadmissible ment Bill for facilitating the Enfranchisement application and of allotment taken together, still without a stamp? If I was to hold so, I should of Copyholds is stated to be almost ready. It the plaintiff must be called, because it is clear that disturb the practice of years. A banker's receipt for is to be first introduced in the House of Lords, neither of those instruments was stamped. And as money comes within the express terms of the sta- and there moulded into such a shape as may they are now to be taken to constitute the contract tute. It does not specify the name of the party payor agreement between the allottee and the company, ing, so that it is not a discharge to any one, but please the lords of manors. Would it not they require an agreement-stamp of 11. 15s. under the simply an admission that so much money has been have been more fair to have permitted the Stamp Act, 55 Geo. 3, c. 184, schedule "Agree- received from somebody or other, and is to be paid to public, through their representatives in the ment." The plaintiff may rely on Vollans v. Fletcher, the account of a certain person by the banker giving Commons, first to shape the Bill so as to re1 Exch. R. 20, as an authority to the contrary; but that acknowledgment. Take the case of a wine-merthat case has been misunderstood by the Profession chant. Would it not be monstrous that if you paid move the evil of which they complain, and and the public to be an authority to the effect that his bill at his bankers', by his direction, you could not then let the Lords deal with it as they might no stamp at all is required; whereas it proceeded on shew it because the banker's receipt given on his deem best. It is so much easier to frame a the circumstance that the letter of allotment had im- account stating from whom the payment came was measure to suit one's purposes than to alter posed a new term or condition on the plaintiff dif- not stamped? There can be no doubt that it is the scheme of another; in the latter case, too, ferent from those proposed by him in his letter of evidence, and if you can make out by other evidence the object is so much more palpable that it reapplication. Those two documents, therefore, did the fact that you paid it, the two together constitute not constitute a final contract between the parties, a discharge to you from the debt. I see nothing in quires some courage to venture upon the task. and no stamp was required. The letter of allotment either of the points. I think that no stamp is neces- If Government is really sincere in this matter, |