ord Mansfield, Cadogan Kennett, Cowp. 434.) endeavours to obtain them. 4. That the shareholders ough one voluntary deed cannot avail against a never consented to the lease or amalgamation, vious voluntary deed, yet the circumstances at- though their consent was necessary. It is contended ading the execution of the settlement of 1837 made that these companies were never incorporated for the parties deriving interests thereunder purchasers purpose expressed as that to be carried out by the thin the statute of Elizabeth (Scott. Bell, 2 indenture. In the next place, to make the indenture vinz, 70; Fitzmaurice. Sadler, 9 Ir. Eq. Rep. valid, the assent of all the shareholders is necessary. and Vin. Abr. Vol. Conveyance, c. 3.) 2ndly. (He cited a MS. case, Jackson v. The Charingere was not sufficient evidence of the delivering cross-bridge Company.) [JERVIS, C.J.-You may the deed. (Doe dem. Garnous v. Knight, 5 take a rule to shew cause, but only on payment of &C. 671; Com. Dig. Fait. A. 3; Bowker costs.] I move on the ground of irregularity, Burdekin, 11 M. & W. 147.) 3rdly. There and therefore ought to have the rule otherwise. The s not sufficient search to let in secondary evi-question is, whether the plaintiffs ought to have nce of the contents. (Cruin v. Claney, 6 Ir. Eq. signed judgment? They might, perhaps, have dep. 552-556.) 4thly. The estate and interest of murred; and the question arises, they not having ewellyn Jenkin, under the deed of 1829, if the taken that course, whether what they have done is ed should be held to be found, and to have been not irregular. The Court, therefore, on these conid in its inception, was effectually barred by the siderations, should give the rule without attaching d of 1837, inasmuch as Rhys Morgan, the quasi such a condition. ant in tail under the former deed was a party to latter deed. 5thly. The mortgage to the defendby Mrs. Saunders was wholly invalid, for if the tlement was good, she had nothing but her life ate to mortgage; and if it was not, then Saunders, Keating, Q.C. Grove, and Phipson, contrá. TERVIS, C.J. in delivering the judgment of the urt, said, that with respect to the 1st point, it smot competent for a court of law to declare a re deed made by a woman about to marry void, in derogation of the marital right of her future sband-relief could only be obtained in Equity This case was tried before the Chief Baron at inst such a transaction, at law it must prevail. en one voluntary settlement could not be set up inst another voluntary settlement, and the first Gray shewed cause against a rule nisi for a prohiist prevail. Next with regard to the delivery of the ed of 1829, the Court was of opinion sufficient iderace was given of its being completely delivered. bition to the judge of the Shropshire County Court, Guildhall, when some of the issues were found for appeared to him duly entered, signed, sealed, obtained on the ground that the sum claimed ex- the plaintiff, and others for the defendant; it was d delivered, and the case of Hope v. Harman, 11 ceeded the jurisdiction, and that it had in fact been arranged to come before the court as a special case rist, 1,097, had clearly settled that the circumstance brought within the jurisdiction by a set-off. (Bes-upon the facts, which appear so fully set out in the its not being given over to the trustees did not in- wick v. Capper, 7 C.B. 699.) It appeared that the following judgment, that it becomes unnecessary to idate it. With regard to the question of search, defendant was sued as the executor of George Frankwever, the Court was of opinion that the learned lin, and the particulars attached to the plaint shewed Ige at the Swansea trial was right, and that suffi-a sum due to the plaintiff of 961. 19s. 6d. and at the nt search to admit secondary evidence had not foot thereof was written, "1850, Jan. 30. Received en made. A new trial would therefore only be by cash, 51.; ditto by Mr. Franklin's bill, anted in the detinue case on payment of costs. 451. 18s. 6d. There was a further charge of ith regard to the 4th point, it had been inge- 107. 10s. for attendances, but that amount was ously argued by Mr. Pulling, that as Rhys Mor- abandoned to bring the case within the jurisdicm was the quasi tenant in tail of the leaseholds tion. The defendant's affidavit stated that there ader the deed of 1829, he might effectually convey never had been since the testator's death, nor, e property by a simple assignment, so as to bar the to the belief of the defendant, during his lifetime, emainder over to Llewellyn Jenkin, and that such any agreement that the two bills should be set off, as the effect of the deed of 1837. On looking to the nor any balance struck; and that at the trial the vidence, however, it would be found that the legal plaintiff admitted that no balance had been ascerstate was at that time in the trustees, and the as- tained or agreed upon, and proved an existing debt ave the effect contemplated. With regard to the the judge of the County Court had no jurisdiction in gnment by Rhys Morgan could not, therefore, of 1027. 9s. 6d. due to him. It was objected, that mortgage by Mrs. Saunders, it was clear that no the case, and that the debt could not be reduced by tle passed to the defendant, and therefore, but for set off, to give jurisdiction; but the judge overruled e conveyance by Llewellyn Jenkin, the verdict the objection, and gave judgment for 401. 17s. 11d. the plaintiff would be right. The rules must be The plaintiff produced affidavits to shew that there ade absolute to enter a nonsuit in the 1st case, and had been a previous agreement between the plaintiff against each other, and to shew that this question had r a new trial on payment of costs in the 2nd case. and the testator to set off their respective accounts Rule accordingly, been discussed before the judge, and that he had determined it in favour of the plaintiff, and that his adjudication proceeded upon this view of that fact. Phipson, in support of the rule. Crowder, Q.C. argued for the plaintiff, and re Crompton, for the defendants, cited Grantvi Herring, 3 Bing. N. C.; Rees v. Warwick, 2 B Cur, adv. vulte ferred to 1 & 2 Geo. 4, c. 78; Pearson Dunlop and Mason v. Hunt, Doug. 297, 235. Tuesday, May 13. POLLOCK, C.B. delivered Hunt, 1 C.B. 443 Byles on Bills, 184; Fairlie & Ald. 113; and Archer. Bank of Ireland, 11 judgment. This was an action of assumpsit upon six foreign bills of exchange. The bills of exchange the defendants pleaded payment into court of the were all drawn by one Alexander Shiras on the des fendant in the month of November, 1841, for various sums, from 3004. upwards to 8357. There was also full amount of that bill together with interest, which a count upon an account stated. As to the first bill the plaintiff accepted. There were 38 other pleas to to the second count, averred that before the circu the different counts of the declaration, denying the drawing, the acceptance, and the indorsement of the bills respectively. The sixth plea, which is a plea as tor that the bill of exchange should be cancelled, lation of the bill of exchange in that count men tioned, it was agreed between the drawer and accep bill for the drawer, should return it to the acceptor and that Glyn and Co. who accepted the part of the for the purpose of being cancelled, and thereupon the accepted part was returned cancelled, and the bill became wholly void. A similar defence was somewhat differently, but more specially, similar pleas to the third bill; the 18th and 19th to the 4th bill; the 25th and 26th pleas to ovenant-Setting aside judgment signed on nonstated in the 7th plea, but no evidence of this issuable plea. JERVIS, C.J.-It is unnecessary to consider what the 5th bill; and the 32nd and 33rd to the 6th bill Crowder, Q.C. moved for a rule calling upon the plea was given. The 12th and 13th pleas were aintiffs to shew cause why interlocutory judgment gned herein on the 25th of March last should not agreement on conflicting evidence, for in this case to advert. The replication to the 6th, 7th, and 12th, set aside with costs. This was an action of ought to be the rule where the judge of a County Court There were also some pleas of set off, and a special Ovenant, brought on a deed made and executed for has determined the fact of the existence of such an set-off payment, to which it is not necessary further arose from the several pleas before mentioned to there was no conflicting evidence at all. The plain- and other pleas above particularised, was de injuria, each of the other bills; it is in effect the same as to tiff's account exceeded the limit of the jurisdiction of It was admitted that the plaintiff was answered as to all. The case states, that in the year 1844, Alex the County Court, and there was no evidence of any the 5th bill, and the material question in the cause ander Shiras, the drawer of the bills in question, binding agreement for a set off. carried on business as a merchant at Trieste, partly on his own account and partly as the agent and correspondent of Messrs. Dennistoun, of Liver pool and Glasgow, the defendants, with whom he amounts. The bills in the declaration were part of a series of bills which Shiras drew upon the defende was engaged in large mercantile transactions, and he was in the habit of making remittances to them from time to time, and of drawing on them for large ants at the latter end of 1841; at the time of draw ing these bills the defendants were in advance to Shiras to the amount of upwards of 30,000%. and had eleasing and amalgamation of the East Anglian and other lines with the Eastern Counties Railway. The main covenant in the deed on which the action had been brought was a covenant that the Eastern Counties railway should pay the East Anglian the costs of certain bills then before Parliament. The sum sought to be recovered was 28,000. The deendants pleaded three pleas, and the plaintiffs Assuming that those pleas were non-issuable, signed udgment, which this motion seeks to set aside. The pleas were 1. Non est factum. 2, That the said Indenture was made after the passing of a certain Act of Parliament, 8 & 9 Vict. c. 96, the purpose of which was to restrict the powers theretofore possessed for leasing railways, and that this lease had been made unlawfully. [MAULE, J.-The object of pleading issuably is this, that you shall not entangle your opponent by matter not material to the substance of the case.] 3. That the indenture was made after the passing of the said Act; and that the East Anglian Railway Company were unable to obtain the said Acts of Parliament, and had abandoned further EXCHEQUER. EXCHEQUER. EXCHEQUER. Monday, May 5. SIONERS OF INLAND REVENUE. Held, by the Court of Ex. upon appeal from the of bills was presented by the drawer to the defend- them on presentation to Glyn and Co. and not find- For the report, the reader is referred to page 98, ants for acceptance, with directions to send them to ing the firsts there, so we hope that no additional col. 3. Messrs. Glyn, Halifax, and Co. in London, the expense may be incurred from the cancelling the defendants' bankers, to be held by them at the dis- firsts." On the argument before us it was contended, position of the holder of the seconds; the seconds on the part of the plaintiff, that the defendants had THE MARQUIS OF CHANDOS . THE COMMISwere negociated at Trieste, Paris, and elsewhere; accepted the bills of exchange, as undoubtedly they and for the greater facility of negociation and con- had, and that the facts which were stated did not venience of the holder, they were addressed at the justify the finding of the jury that they were afterfoot to Messrs. Dennistoun, payable in London, the wards cancelled, for that it was agreed, first, that the first with Messrs. Glyn, Halifax, and Co. The letter of the 4th of December did not authorize the bills purporting to be the second part on which defendants to cancel their acceptances, which they the action was brought, were negociated by Shiras did on the 16th of December; and that although with Arnstein and Eckeles, of Vienna, and they did cancel the acceptances on the face of the others with Messrs. Luzzatto, merchants at bills, they did not and could not cancel the acceptTrieste, and another with an insurance com-ances by the letters of the 3rd and 8th of December, pany at Trieste. Each of these bills was in- which were in themselves a complete acceptance. dorsed to the above parties by Shiras for value re- Secondly, it was contended that the acceptances ceived by him. At the time of the negociation of could not be revoked with respect to the plaintiffs, them, Shiras represented to each of the above who were holders for value, and without notice; and, parties that the first part had been already accepted thirdly, that the letter of the 18th of December above by the defendant, and each of the above parties mentioned was a new acceptance, and that that actook the above bills as the seconds of bills of which ceptance had never been revoked. We are of opinion the first had been remitted to England for accept- that the finding of the jury, that the two letters of ance. The defendants, by letters of the 3rd and the 4th of December, 1841, were sent by the drawer 8th of December, addressed to Shiras, announced for the purpose of the acceptances being cancelled by that they had honoured all the drafts that came to the defendants, was fully warranted by the evidence. hand, and that they should honour the others which We have no doubt on the meaning of those letters, might be presented, and a memorandum of accept that the acceptances should be cancelled; and they ance was written across them, and they were trans- having been so cancelled, the obligation of the accep mitted to Glyn and Company to be held at the tors, and the bills themselves, were put an end to with disposition of the holders of the seconds; the respect to Shiras, and all persons claiming subseseconds, in some of the counts mentioned, were in- quently under him. As to any persons who had thus dorsed by Shiras on the 21st of December, others acquired an interest in those bills, the owners of the upon the 22nd and 23rd of December, to the inter- then existing seconds, the act of the defendants and mediate indorsees mentioned, who had no know- Shiras in putting an end to the acceptances would ledge of the correspondence beyond the representa- have no effect; but neither Foulds and Co., nor any tion of Shiras, that the first parts of the bills had other person then, had any interest in those bills, been accepted, and the bills were afterwards in- and it was perfectly competent for the defendants dorsed as mentioned in the declaration. At the and Shiras, to put an end to the obligation, which time of remitting the firsts to the defendants, the defendants had contracted by their acceptances. Shiras had remitted the seconds to Foulds and The letter of the 4th of December refers only to the Company, of Paris, indorsed to them for the pur-firsts of the bills, and by implication directs the acpose of discount; these seconds were returned by ceptances on the face of them to be cancelled, and Foulds and Company, who did not discount them: does not refer to the letters of the 3rd and the 8th, some were received by Shiras on the 8th of Decem- which could not possibly be known to the writer; ber, and some on the 13th of December, and were but these letters, as Mr. Crompton contended, are This was an appeal by the Marquis of Chandos cancelled by Shiras before he remitted the seconds rather the narrative of the previous acceptances than against the determination of the Commissioners of which were so indorsed, as before mentioned, to the the acceptances themselves, and the cancellation of Inland Revenue, under the 13th and 14th Vict. c. 97, plaintiffs. On the 4th of December, Shiras wrote the acceptances in the bills to which they refer, put entitled "An Act to repeal certain stamp duties, the following letters, one to Messrs. Glyn and an end to the obligation as between Shiras and the and to grant others in lieu thereof, and to amend the Company, the other to the defendant; that to defendant altogether. With respect to the sugges- laws relating to the stamp duties." The 14th section Messrs. Glyn was as follows: "Trieste, 4th tion on the part of the plaintiff that the bills were for removing doubts as to the sufficiency of stamp December, 1841. Gentlemen,-I beg you will, upon again accepted by the letter of the 18th of Decem-duty paid on deeds, enacts that when any deed or the receipt of this, hand to Messrs. Dennistoun and ber, it is sufficient to say that the original accept- instrument liable to stamp duty, whether previously Company, of Liverpool, all the firsts of exchange ances being answered by the sixth plea, it is not com- stamped or otherwise, shall be presented to the Comin your hands drawn by me on the said gentle- petent to the plaintiff to resort to a second accept- missioners of Inland Revenue at their office, and the men, and handed by them to you, to be held ance without a new assignment, which would give to party presenting the same shall desire to have the at the disposition of the seconds." That to the defendants an opportunity of presenting any de- opinion of the said commissioners as to the stamp the defendants was as follows:-"Since addressing fence they might have to such second acceptance. duty with which such deed or instrument, in you, there has been no change in business, the parties We much doubt whether the letter of the 18th of their judgment, is chargeable, and shall tender to whom I sent seconds of my drafts on you to your December was written under such a full communica- and pay to the said commissioners a fee of own order inform me that they will not negociate tion of all the facts of the case, as would have ren- 10s. (which shall be accounted for, and paid more of them, and I have merely to request that dered it available as an acceptance; but whether that over as part of her Majesty's revenue arising from you will instruct Messrs. Glyn and Co. to return all be so or not, the question cannot be raised upon the stamp duties), it shall be lawful for the said firsts drawn by me which may remain uncalled for pleadings in their present shape, as the only accept commissioners, and they are hereby required to in the hands of said bankers." On the day of the ance stated in the declaration is one averred in the assess and charge the stamp duty to which in their date of this letter, or the day previously, Shiras pleas, and proved by the evidence, and found by the judgment such deed or instrument is liable, and upon received intelligence that Messrs. Foulds and jury to have been cancelled. Nor is it necessary to payment of the stamp duty so assessed and charged Oppenheim had refused the acceptance of his bills say, whether, if the letter had so operated, the by them, or, in the case of a deed or instrument on them, as after mentioned. On the 7th of Decem- drawing of the new seconds by Shiras, and the in- insufficiently stamped, of such a sum as, together ber, Shiras again addressed the defendants, as dorsement to the plaintiff of those seconds would with the stamp duty already paid thereon, shall be follows:-"Learning that the parties to whom I have given a valid title to sue. We do not think the equal to the duty so assessed and charged, and upon have indorsed several of my drafts on you were defendants can avail themselves of the 36th, 37th, 38th, payment also of the amount, if any, payable by way much committed with Rogers and Co. of Havre, and and 39th pleas, and upon the whole our judgment is, of penalty on stamping such deed or instrument, to Bacquerre, of Bordeaux, as a measure of precaution that the verdict be entered for the defendants upon stamp such deed or instrument with the proper stamp I wrote last post to Glyn and Co. to return you the 7th, 13th, 19th, 26th, and 33rd pleas, and for the or stamps, denoting the amount of the duty so paid, immediately all bills in their hands which remained plaintiff on the residue. and thereupon, or if the full stamp duty to which in uncalled for; knowing to-day that my fears were the judgment of the said commissioners such deed groundless, I address Messrs. Glyn and Co. to or instrument shall be liable shall have been preaforesaid, the said commissioners shall impress upon such deed or instrument a particular stamp to be provided by them for that purpose, with such word or words, or device or symbol thereon as they shall think proper in that behalf, and such last-mentioned stamp shall be deemed and taken to signify and denote that the full amount of stamp duty with which such deed or instrument is by law chargeable has been paid, and every deed or instrument upon which the same shall be impressed shall be deemed to have been duly stamped, and shall be receivable in evidence in all Courts of Law or Equity, notwithstanding any objection made to the same as being insufficiently stamped; save and except that such lastmentioned stamp shall not be impressed upon any deed or instrument chargeable with ad valorem duty under or by reference to the head of bond or mortgage in the schedule to this Act where the same is made as a security for the payment or transfer or retransfer of money or stock without any limit as to the amount thereof; and provided always, that nothing herein contained shall be deemed or construed to extend, to require, or authorise the said commissioners to stamp, as last aforesaid, any probate of a will or letters of administration, or to Tuesday, May 3. Chamber.) FRY . WHITTLE. County Court-Suggestion-Form of affidavit. The affidavit to found a motion for a suggestion to deprive a plaintiff of costs, under the County Courts Act (9 & 10 Vict. c. 95, secs. 128 and 129), must allege with certainty and precision that the plaintiff did not at the time of the commencement of the action dwell more than twenty miles from the defendant; and where the affidavit stated that the plaintiff at the time of the commencement of the action dwelt at Birmingham, which is within twenty miles from Wolverhampton, the place where the defendant dwelt and carried on his business at the time this action was commenced: annul those instructions, and should they have re- (Before ALDERSON, B. sitting alone in the Exchequer viously paid and denoted upon the same in manner turned you any of your acceptances, kindly replace them in their hands to be held at the disposition of the seconds." Messrs. Glyn and Co. received the letter of Shiras on the 15th of December, and in pursuance of it upon that day remitted to the defendant the bills in question; they were received by the defendants at Liverpool on the 16th of December, and on the same day they received the above letter from Shiras, dated the 4th of December, 1841. On the same 16th of December, the defendants wrote to Messrs. Glyn, acknowledging the receipt of the bills, and informing them of the cancellation. On the 18th of December, they received Shiras's letter of the 7th of December, as above set out, and replied to it on the 18th, as follows:-"We had this pleasure yesterday, and have to-day received your favour of the 7th inst. As we stated on the 16th, the first of your drafts which Glyn and Co. returned to us, were immediately cancelled, and it would hardly do, therefore, to reissue them in their present state; but we have to-day written to Glyn and Co. explaining this, and requesting them to refer the This case is fully reported at page 98, col. 3, but holders of the seconds to us when they are presented the title of it having been then accidentally omitted, to them. In no instance but that of Baring, Bro- it has been deemed desirable, for the sake of thers, and Co. have the holders of seconds protested readier reference, to repeat the head-note here. Held insufficient, as not shewing distinctly that the The Solicitor-General contrà.-The question is one of some importance, and if the construction of the other side be correct, it will be contrary to the practice, and be the means of avoiding the Act by which it was intended to impose the duty, and evading that duty. According to the argument on the other side, a person may buy the equity of redemption for a small sum, pay the duty only on that small sum, then pay off the mortgagee or incumbrancer, take a release, and thus obtain the fee, and so avoid the stamp duty; but there is a provision in the Act expressly to meet such a case. The duke has here parted with his estate altogether; and why, therefore, should not the duty be paid as upon a sale for the amount? Is there any difference between paying the purchase-money out of his own pocket, down at once, or out of the rents and profits? This is not the case of a trust here; the word trust is carefully avoided throughout. The marquis may compound for his father's debts; and if so, the son is to have the benefit of the composition. In the ordinary case of a trustee and cestui que trust, the latter and not the former would derive the benefit of such a composition. The covenant for further assurance is absolute, which shews the object and effect of the instrument. Peacock in reply.-The mere purchase is wholly immaterial; the Court will look to see from the transaction whether it is a purchase or not. (Doe dem. Merrett v. Merrett, 1 C. & M. 820.) stamp, as last aforesaid, any deed or instrument the purchase or consideration money is 100,000l. or PARKE, B.-The consideration money agreed to be paid seems to be the true mode of construction, and of reconciling all the clauses together. If the mortgage agreed to be paid off, then it is part of the consideration money; otherwise not. (Doe dem. Langford v. Diamond, 4 B. & C. 243.) EXCHEQUER. wholly irrespective of the real value of the land. If the enactment had stopped there, there could have been no question in the case: the indenture proposed to be stamped could not be considered as a sale, as there is no purchase or consideration money expressed. The purchase or consideration is the money paid or to be paid by the vendee to the vendor or to another, at his request, as the price of the subject conveyed, and is the consideration which causes the vendor to part with it. The difficulty in this case is caused by the subsequent provision, and the question turns upon the true construction to be given to such an enactment in the Revenue Act. It is as follows: "And where any lands or other property shall be sold and conveyed in consideration wholly or in part of any sum of money charged thereon, by way of mortgage, wadset, or otherwise, and then due and owing to the purchaser, or shall be sold and conveyed, subject to any mortgage, wadset, bond, or other debt, or to any gross or entire sum of money to be afterwards paid by the purchaser." The Solicitor-General, on the other hand, contended, on behalf of the Crown, that the meaning of the words in the clause is, that, wherever the charge is not to be paid off or discharged by the vendor, it is to be considered as "to be afterwards paid by the purchaser," and that in such cases the latter obtains the power of acquiring the full value of all the estate by paying the charge whenever he pleases, and was therefore meant to be made liable to pay the duty on the full value of the estate; and that, if it were otherwise the Crown might be defrauded of part of the tax justly due to it on the sale of incumbered estates. It appears to us, that according to the ordinary meaning of the words used, the appellant's construction of the clause is right. That in the clause which is to define what is the consideration or purchase-money, the terms "to be paid by the purchaser," mean, where it is stipulated that he is to pay it, the provision applies only to those cases where, in consideration of the conveyance of the conveyance of thee state, the vendee agrees to pay a certain sum to the mortgagee or incumbrancer. Where the purchaser does not bind himself to pay it, but is left to pay it or not, as he pleases, it cannot be a part of the consideration money. It is true that the consequences of this construction may be, that a person may buy the equity of redemption of a mortgaged estate, or an estate charged with a legacy, for a certain sum, and pay ad valorem duty only on the value, or rather on the price of the estate subject to the mortgage or legacy; and may afterwards pay off the mortgage money, or charge, without paying a further ad valorem duty on that account. Why should he not do so? Why may not a man acquire the equity of redemption of an estate, or an estate subject to charge, and allow the mortgage or charge to continue, taking the benefit of the surplus rents and profits, and why should he pay the duty for the entire property, which he may never choose to acquire, and which he is not bound by his contract with the vendor to acquire? The argument, in truth, is founded upon the fallacy that the duty is imposed upon the value of the estate to the purCur. adv. vult. chaser, and not on the price or consideration to be Tuesday, May 13.-POLLOCK, C.B., delivered paid for it. We are of opinion, therefore, that, judgment. This case comes before us on an appeal according to the ordinary rule of construction, the under the late Stamp Act, 13 & 14 Vict. c. 97, against clause in question does not apply to this case, it the determination of the Commissioners of Inland being clear that the Marquis of Chandos did not, by Revenue as to the proper stamp to be imposed upon this indenture, agree to pay off any of the mortgage a deed of settlement of the family estates made be- or charges upon the conveyed estates. But when tween the Duke of Buckingham, the Marquis of we bear in mind that this clause charges the subject Chandos, and Mr. Abrabam George Robarts, bear-with a duty, we think it does not admit of a doubt ing date the 27th of May, 1847. The deed was in that the words are not sufficiently clear on that substance a conveyance of the Duke's life-account. The Solicitor-General informs us that the interest in certain large estates and his commissioners have acted according to the usual reversion in fee simple in others, subject to mort-course of practice at the Stamp Office in this regages and annuities, and other charges, to the spect. But it is to be recollected that, until the amount of nearly 1,500,000l. the Marquis of Chandos passing of the 13 & 14 Vict. c. 97, there was practically having before cut off the entail of a large part of the no power of testing the propriety of that practice, as estates of which he was tenant in tail in remainder, there was no appeal. The only appeal that was for the purpose of raising a large part of that sum. given, was by omitting to stamp the instrument, and The commissioners were of opinion that, although then running the risk of an objection being taken, no price or purchase money was stipulated to be paid and the whole proceeding being void, and, indeed, by the marquis, yet as the estates were conveyed as the ad valorem stamp duty cannot, I believe, be subject to mortgages, &c. the deed ought to be afterwards imposed-certainly it generally cannotstamped with an ad valorem stamp upon the amount running the risk of the whole transaction being of those charges as if the purchase money had been utterly void. Practically, therefore, there was no to that amount, and for which the stamp at that appeal, and it would have been dangerous to have time would have been 1,000l. and now four times had an ad valorem stamp imposed upon a deed of that amount. We are all of opinion that the deter-less value than that required by the commissioners, Peacock then began.-This deed is dated 27th mination of the commissioners was wrong. It is a as the error, if it turned out to be one, could not be May, 1847, and the object of it was to assign well established rule in the construction of revenue corrected. We are satisfied that the Crown has not 50,000l. a year for the benefit of the Duke, to pay Acts, that a duty cannot be imposed upon the sub-made out the right to impose any ad valorem duty off debts. His son, the Marquis, did not purchase ject except by clear words. The meaning of the in this case, and therefore our judgment is in favour absolutely, and the question is, what was the con- Legislature must be distinctly made out from the of the appellant. sideration for the conveyance, as the duty is im- terms of the statute; and we think that that cannot posed by the 55 Geo. 3, c. 184, Schedule Part 1, be done in this case. The duty is imposed by the tit. "Conveyance." There is no personal under- 55 Geo. 3, c. 184, sched. part 1, under the head of taking to pay the debts, but the powers are to apply "Conveyance," whereby on the sale of lands, where the rents of the estates, joining the father's and lands are conveyed to or vested in a purchaser, the son's interest in the property together, to discharge conveyance is rendered liable to an ad valorem the father's debts out of the rents. Is this "a con- duty in proportion to the purchase or conveyance upon sale," as the schedule says, "where sideration money therein or thereupon expressed, 13 & 14 Vict. c. 97. Peacock, Q.C. for the appellant, claimed the right to begin. The Solicitor-General (Sir P. Wood) for the Crown, objected.-As the appellant thus sought to have a benefit by asking for an opinion of the commissioners, and then being dissatisfied with that opinion, applied to this Court against it. MARTIN, B.-You may call it a benefit, but it is a right under the Act of Parliament. Held by Parke, Platt, and Martin, BB. that the appellant had the right to begin. POLLOCK, C.B. dissentiente. The Solicitor-General claimed, on behalf of the Crown, the right to a general reply; and mentioned the Attorney-General v. Trueman, 11 M. & W. 690. Peacock opposed it, and referred to the Lord Advocate v. Lord Douglas, 9 Clk. & Fin. 200, and Drake v. the Attorney-General, 10 Clk. & Fin. 257. POLLOCK, C.B.-It was admitted at the bar of the House of Lords, to be the practice universally in this Court that the Crown was entitled to a general reply; in another case in the Court of Q. B. on motion, I contended for the right; it was conceded by Lord Denman, that this was the case on motion in the Court of Ex.; he also said it was so in the Court of Q. B. on prosecutions, but not on motion. In this Court the practice is universal—whether on motion, pleading, or argument of a case, the Crown has a general reply. The Solicitor-General replied generally. ERRATA.-Page 108: Cleave v. Jones. The paragraph in the head note, "Verbal evidence of acknowledgment of payment of part of principal or interest, is sufficient to take a case out of the statute of limitations," should have come in at the end of that head note.-Page 111: Boosey v. Jefferys. In the judgment, for Back v. Longman, read Donald EXCHEQUER CHAMBER. sons v. Becket.-Page 112: for Guichard v. Mori, BUSINESS OF THE WEEK, ROBERTS and UXOR. JONES-Welsby shewed cause Rule discharged with costs. TURNER C. CAMERON'S COALBROOK, &C. COAL COMPANY. Peacock and Hawkins shewed cause against a rule obtained for leave to issue execution against a Mr. News, former registered shareholder of the company. They contended it was not shewn that the present shareholders, or the company's property, had been sufficiently sought for. The party here sought to be charged was not now a shareholder, but when he was he had paid up all his calls; and the 9 & 10 Vict. e. 401, s. 5, of the local Act, provided that individual shareholders should not be liable beyond the amount or extent of the calls which could be made upon them in respect of the number of their shares taken. MARTIN, B.-There are here two companies; first, the Parliamentary company, or company for making the railway; and, second, the present coal company. The action was for use and occupation against that.coal company. If you can shew your client had nothing to do with the coal company, but only the Parliamentary company, your arguments may perhaps apply.] He referred to 7 & 8 Viet. c. 109, s. 25, and Merston v. Lunn, 20 L.J. 190, Q.B. Bovill, contră, not heard. Rule absolute. BERRY . BROWN-Watson, Q.C. moved in this case, tried before Martin, B. at Westminster, to set aside the plaintiff's nonsuit, and enter a verdict for the plaintiff for 1577, 84. or for a new trial. There was an alleged variance in setting out the guarantee. Rule nisi. a person who had been removed from the office of [MARTIN, B.-Is not this a clerical error! his town-clerk, an annuity, to commence from a day the reversal of a judgment, but an alteratin named. By the Treasury minute it was directed terms to make it consistent with the origi that an order should be drawn up pursuant tion.] By the first order the Lords of the I thereto, and that copies of the minute and the were functi officio, and that order is binding order should be transmitted to the parties. conclusive. (He referred to Phillips. Era The minute disclosed, though the order did not, that Mee. & W. 309; Fuller v. Fenwick, 3C.. compensation had been awarded for a period Ward v. Dean, 3 B. & Ad. 234; Irvine v. Eh during which, in fact, the claimant continued to 8 East, 54; Henfree v. Bromley, 6 East, 3 hold the office: Amery, 1 Anstr. 173.) Dowl. & L. 628. This is not the case of a Whateley, in reply, cited Re Jones error. [PARKE, B.-Certainly not.] Held, that the order and the minute were to be read Keating, contra-The first order mas mali u together, and that the order was bad for so much out jurisdiction. The appeal to the Lord as had been awarded in respect of that period. Treasury was as to the amount of annuity; This was a mandamus to the mayor, aldermen, the lords not only increased the amount fra k and citizens of Lichfield, which recited a previous to 50%. but extended the payment to an autem peremptory mandamus to the council of that city, time; and in that they exceeded their powe stating that at the passing of the Municipal Corpora- could not charge the annuity tretia tions Act, the 5 & 6 Wm. 4, c. 76, Charles Simpson, [CRESSWELL, J.-The same principe da the prosecutor, held the office of town-clerk of the ply to the prospective charge. Wish p borough of Lichfield; that he was reappointed terity pay for the luxury enjoyed in the present to the office, and that after the passing of council of appointing their own fries azz the Act he continued to hold such office until J.-The Act seems to contemplate a the 20th of January, 1844, when he was removed, but if there is the alternative of p and was entitled to compensation, to be assessed down, or charging an annuity on postm by the council. That the council took into con- easy to see which is likely to be chosen a sideration his claim, and disallowed it; and the can well understand how it happens that t recited writ then commanded them to assess an ade- generally agreed that there is the alterati quate compensation to be paid to him. That the was, at all events, competent to the lords to m council assessed as a compensation the annual sum a mere mistake. The first order was not that of 301. 4s. 3d.; that the prosecutor appealed to the they intended to make: and it was not e Lords Commissioners of the Treasury, who heard the served; for it was not communicated to t appeal on the 31st of March, 1849, and ordered that The rectified order was, in truth, the the said Charles Simpson should receive the sum of binding order. [PARKE, B.-Have you 50l. 18s. 3d. per annum,-such annuity to commence averred that the amendment took place h from the 9th of September, 1835. That the order was lication of the order? Sending it to one t duly signed, and became valid, and was transmitted ties is publication enough.] It is enough to the mayor, and notice thereof was given to the amend within a reasonable time. prosecutor. The mandamus then commanded the The power of the Courts to amend their mayor, aldermen, and citizens to execute and deliver is a power to do so forthwith, but then a to the prosecutor a bond and obligation in a sufficient indivisible, and the whole term being but penalty, for the payment to him of the said last- the Court, has, in fact, the whole term. tember, 1835. To this mandamus the Corporation mentioned annuity, commencing on the 9th of Sep- there was no fresh exercise of judgment. returned that, before any order was made by the Lords Commissioners on appeal, namely, on the 23rd of March, 1849, a Treasury minute was made, which Cur. ade, ml was set out at length, and which stated the average of PARKE, B. now delivered the judgment five years' profits of the office, prior to the passing of Court. In the argument in the Court of the Municipal Corporations Act, on which they cal- my brothers Patteson and Wightman gre culated the annual amount to be 767. 78. 4d. and, clusive opinion on the question whether it making a deduction for disbursements, they gave petent for the Lords Commissioners of the two-thirds as the annual compensation, being equal sury to alter their order after it was made and elto Sol. 19. 2d, and ordered an annuity to that amount lished, by correcting & mistake of fact, but decided to be paid, to commence on the 9th of September, the demurrer against the prosecutor in the Cou 1885; and that an order should be drawn to that that the original order was bad, as the Lord Cou MORGAN 7. WHITMORE solute to enter a nonsuite effect, and delivered to the mayor, with a copy of missioners had no power under the statute Chief Baron, when the defendant obtained a verdict. It that minute. The order was also set out; and the Wm. 4, c. 76, s. 66, to give a compensation was an action of trover. Pleas- Not guilty and not pos- return averred that the minute and order did not truly of annuity for loss of office before the time that sessed. And a rule having been obtained to set aside de-expurna vered that the t and meaning of the Com- prosecutor was actually removed from that fendant's verdict, and for a new trial, James, Q.C. and C. express the true inte the same, and that the date of On that judgment a writ of error was bright the 9th of September was inserted by the mistake the argument it was contended, first, that the and inadvertence of the Commissioners, and with was valid; secondly, that the Lords of the Th intent that the prosecutor should receive such having once made and published it to the par annuity from the day he ceased to hold the office of fected by it, they were functi officio, and town clerk; and that the date was inserted under afterwards vary it, though for the purpose of . ———.-O. Pollock moved for a distringas to com- the belief that the 9th of September was that ing a mistake of fact, the order when Granted. day. The return then stated that on the 31st being binding on all parties by the ten PALAGE RICHARDS.-Prentice moved for and to of March a copy of the said minute was trans- statute. Upon the latter question we think show cause why the plaintiff herein should not have mitted to the prosecutor, Mr. Simpson, and also cessary to give any opinion, because, after hint, notwithstanding the late decision in Jones Hard oth of April, in the judgment of the Court of int his coste under the last County Court Act. He contended a copy of the material part of it to the full consideration of the first question, rias, 17 Law T. al, that the Courts would lay down some Mayor, It then stated, that on the 10th of April order of the Lords Commissioners of the Cpplicatious for certifea to main coming the decision on error, and the said Lords Commissioners made a so far as relates to making the annuity payable the plaintiff resided in London and the defendant at Chat: second minute, which was set out, correcting that spectively beyond the 21st Jan. 1844, ham, more than 20 miles distant; the Court would there- error, and ordering the annuity to commence from we look at the order itself, as set out i thiki foro look to the 19th ed three out, which gave - ere da and ther's quitting office; and that rus, and to that alone, we should not thin 20 miles apart, and judging from that the intention of an a letter was sent to Mr. Simpson, notifying that By sec. 66, c. 76, of the 5 & 6 Wm. 4, " Legislature, would grant this application. The application correction. The return then went on to state, that cer who shall be in any office of profita The Court been refused at chair discretion, but are to council, it was ordered that the amount of 50%. 186. 2d. its provisions, shall be entitled to have a had already been refused at chamber. Bytheplication on the 20th of April, 1849, at a meeting of the the passing of the Act, who shall be remo GRAPES U. BUNNEY.-Sir F. Thesiger had obtained a rule to set aside plaintiff's verdict, on the general issue in an action of libel against the John Bull newspaper, tried before the Chief Baron in London, and to enter the verdict for the defendant. Keating, Q.C. had obtained a cross rule to set aside verdict, and for a new trial. The COURT directed the verdict to be entered for defendant on the first count, and plaintiff on the second, unless stet proeceous consented to in ten days. GRAHAM and ANOTHER v. ISEMONGER.-O Malley and Bell shewed cause against a rule obtained to set aside the defendant's verdict, and enter it for the plaintiffs for 2644. pursuant to leave, or for a new trial. Crowder, 4.0. and Ustbank, contrà, called upon to support the rule. The question was entirely of fact. Rule Pollock shewed cause. Watson, Q.C. and Hawkins, contrà, not heard. The Coven said they were bound b, con pel appearance. certain to guide them to a concurrent jurisdiction when the parties lived more than Rule refused. be bound by rules in exercising it. It is for that you should be granted and secured by a bond or obliga- compensation, to be assessed by the council for tion under the common seal of the corporation, salary, fees, and emoluments of the office which commencing on the 20th of January, 1844, the day shall cease to hold, regard being had to the BURMESTER, one of the Public Officers of the London and that they had always been ready to execute that rest therein, and all other circumstances of the c when the prosecutor ceased to hold the office, and of his appointment to the office, his term and inte Rule absolute to enter verdict on the 5th plea. Westminster Bank, v. NORRIS, Official Manager of the Thursday, May 29. Cur, adv. vult. SMITH V. STEVENS. EXCHEQUER CHAMBER. ERROR FROM THE QUEEN'S BENCH. Reported by A. BITTLESTON, Esq. of the Inner Temple, Barrister-at-Law. The 5 & 6 Wm. 4, c. 76, s. 66, gives the Lords of pensation, or an annuity for life, or for a less tim the Treasury a complete discretion as to the make the annuity commence at a future or b mode in which the compensation shall be di- time. They are left with a complete discreti it was issued and served upon the parties several circumstances, including the state of the corp rected to be paid; and the first order was complete; the subject, to be exercised with a view to al days before the supposed amendment was made. funds, and the position of the appellant. I [MAULE, J.-Can any three Lords of the Treasury cases it may be just to both parties, and more Compensation for office of town-clerk-Jurisdiction Certainly not; yet, unless that be so, the second pal sum, in others an annuity; and the comm for a period during which the claimant continued Superior Court can only be altered during the same amount may be varied with perfect equity in of Lords of Treasury-Award of compensation order is good for nothing. A judgment even of a ment and the continuation of the annuity, and at any time reverse the order of any other three?] venient to one or both, to receive or to pay a pri Upon appeal to the Lords of the Treasury, under same Sessions. If an amendment is to be allowed damus, appears to us, therefore, to be valid, thoug term; or a judgment of Quarter Sessions during the particular case. The order itself, set out in the the Municipal Corporations Act, they awarded to after thirteen days, why not after thirteen years? it commences from the 9th of September, 1836, laintiff in error was not removed until January, because, instead of awarding a sum in gross, compensation the Lords Commissioners may be med to have thought they could distribute the hen more equally, by making the compensation ble by way of annuity, yet not altogether so, partly by a sum in gross, namely, the arrears h are payable instanter, and partly by annual ments. Such an arrangement would be within cope of the power given them by the Act, and Id therefore be legal and valid. But it is clear the Legislature never intended the Lords of the sury to have power to make a compensation to fficer for the loss of the salary, fees, and emoluts of an office during the time when he had not it, but continued in the full enjoyment of its ts, and therefore, if the order had, on the face expressly stated, that the Lords thought fit to the appellant 501. 18s. 2d. for the loss of office ight years and upwards, from September, 1835, anuary, 1844, that part of the order would be zvires and bad. Though they may exercise discretion as to the quantum and mode of payt of the compensation for loss of the profits of e, they have no right to give a compensation for its that are not lost. The question in the case is, whether the order is valid, looking to the sury minute of the 23rd of March, 1849, set out e return, and made before the order. It conthe resolution of the Lords of the Treasury to e the order, and the order is averred to have made in pursuance thereof, and a copy of the ate, as well as the order itself, is by the memoum ordered to be transmitted to the mayor, and opy of the minute was in fact transmitted he appellant. Two questions then arise; first, we read the Treasury minute in conjunction with We order, and explain one by the other? And, ndly, so reading it, what is the effect? k it was clearly intended by the Lords of the sury that one document should explain the r, as there is an order to transmit a copy of it the order itself; and we do not see any reason that intention should not be carried into effect. ought not to require strict technical formality in a proceeding. The two instruments being read ther, it appears that the Lords ascertained the al average profits for five years before the ing of the Act to be 761. 7s. 4d. and they deone-third (no doubt in respect of the exempby the appellant hereafter of all further trouble loss of time, which the actual exercise of the e would have cost him), and they fix the annual amount at 50/. 18s. 2d. which the Lords direct be the amount of the annuity. We do not feel doubt from the language of the minute that the rds considered 507. 18s. 2d. a year to be the full pensation due to the appellant for the loss of h year's profit respectively, and, therefore, as y have awarded that sum for each year from the September, 1835, they have awarded compensaa for a time during which the appellant held the ce and enjoyed the profits of it. Taking the nute and order together, it is equivalent to an ard by the Lords of the Treasury, that for the loss the profits of the office from September the 9th, 5, to January 28th, 1844, being eight years and rmonths, he should have at the rate of 501. 8s. 2d. year, and an annuity of the same amount for following year. For the period of time between 9th of September, 1835, and January 20th, 1844, y had no power to make any compensation at all, pro tanto their award is bad. We, therefore, ak, for these reasons, that the judgment of the B. is right, and ought to be affirmed. Reported by C. J. B. HERTSLET, Esq. of the Middle ERRORS FROM THE EXCHEQUER. Friday, May 16. Cleasby (with him Hindmarch) for the defendants now contended that this was not a valid patent. The first patent did not expire till 1846, and at the time still subsisting. The garancine process, it was true, had not been applied to spent madder when the patent was taken out, but no one could take out a patent whilst the first patent remained in existence. the second patent was taken out, that patent was before, but not heat. The garancine process only It had been usual to apply acid to spent madder adds heat, and would have been no infringement of the first patent; by the process of applying heat you obtain, from spent madder, a powder which contains a valuable colouring power. He cited Kay v. Mar shall, 4 Bing. N.C. 492; Report of Proceedings in that Lords, 8 C. & F. 245. It is said, on the other side, that case in Chancery, 1 Beavan, 535; in the House of that was a case that turned on a defective specifi cation; but the point decided was what could be the subject of a patent. There a patent had been ob and spinning flax, hemp, and other fibrous subtained for new and improved machinery for preparing spinning consisted in placing the retaining and had ever been used before in flax spinning drawing rollers nearer to each other than they stances, by power. The improvement as to the This was an action on the case, for the infringe- the shortening of the reach being rendered manufacture of a certain colouring matter, com- new machinery for preparing it. It appeared that ment of letters patent for an invention of a new practicable by the maceration of the flax in the monly called garancine." It appeared that the in- spinning machines varying in the distance of the vention consisted in manufacturing a certain colour- each according to the length of the fibre of the sub ing matter called garancine from spent madder, or stance to be spun, had been in use before the patent madder which had been previously used in dyeing, was obtained, and it was held that the machinery for ordinarily thrown away, as spent and of no value; patent was not valid in point of law. It was, in on the bill of exceptions, but it is in fact so, that such madder having prior to the said invention been spinning was not a new invention, and that the and garancine having theretofore been produced fact, a mere novel application. It does not appear the present defendants paid the plaintiff for a licence from fresh or unused madder. expired. The discovery of Steiner was that spent to use this patent up to 1846, when the first patent the application of acid cold. True it was very little madder could be made to yield colouring matter by used, for it was found to be very imperfect when applied, the colours being fugitive; but the mere nent, would not prevent its being an infringement of application of heat with the acid, which made the original invention perfect and rendered the dye perma the patent. There is, to a certain extent, a similarity between fresh and spent madder; the same properties The declaration alleged, that the plaintiff, before was "the true and first inventor of a certain new and at the time of the making of the letters patent, facture of a certain colouring matter, commonly manufacture within this realm, to wit, a new manucalled garancine." The defendant pleaded:-1. Not guilty. 2. That the plaintiff was not the true and first specification did not sufficiently describe the inveninventor. 3. That the invention was not new as to the public use thereof in England. 4. That the ld good, under 8&9 Vict. c. 16, s. 26. mini wou tion. 5. That the invention was not any manner of This was an action of debt for railway calls. The manufacture. 6. That the invention was not a new claration stated, "for that the defendant is the manufacture of a certain colouring matter, called reside in both, and may be reached by proper means. lder of the shares in the said company, and is in- garancine, as in the declaration alleged. The This is a stronger case than Kay v. Marshall: there bted to the said company in 1001. in respect of a evidence shewed that the invention consisted in the same process was applied to different substances; 11 of 10. on each of the said shares, whereby an obtaining the residue of the colouring matter, called here it is the same process applied to the same sub tion hath accrued to the said company by virtue of garancine, which remained in the spent madder after stance, and producing the same results. The autho Company's Clauses Consolidation Act, 1845, the madder had undergone the usual process of boil-rity of Kay v. Marshall, shews this to be no inne Birkenhead, Lancashire, and Cheshire Junction ing, to extract the amount of colouring matter fringement of a patent. The case of Crane v. Price, ailway Company's Act, 1844; and the Birkenhead, which could be obtained in that way. A person well on which the other side mainly rely, reported 4 M. ancashire, and Cheshire Junction Railway, and acquainted with the process of dyeing had stated in & G. 580, was decided in 1842. In that case A. had Chester and Birkenhead Railway Amalgamation Act, evidence that he had become acquainted with the btained a patent for the use of a hot-air blast in |