KNICHT BRUCE'S COURT. or liability, which shall have been previously incurred by him, her, or them, in regard thereto." J. Parker and Hislop Clarke, in support of the motion, cited Ex parte Salter, 14 Jur. 966; and Sanderson's case, 3 De G. & Sma. 66. Wednesday, March 26. proceedings under their notice-denying that such lands were injuriously affected. An ex parte injunction had been granted. On motion to dissolve the injunction, it was Held, that whether the landowner was or was not entitled to compensation was a purely legal question, and that there was nothing in the notice of the landowners to preclude them from giving evidence before a jury of their right to compensation. This was a motion to dissolve an ex parte injunction which had been obtained by the railway company to restrain the defendants, Hall, Robinson, and Knight, from taking any proceedings against the company under a notice hereafter mentioned. lands, the sum of 1,2501. the residue of the purchase-money was paid by the trustees to Francis Collins, the attorney of Richard Hobby, the elder, and Jane Hobby, upon his undertaking to place out the same on security. This sum was not Bacon and Roxburgh for the official manager. invested by Collins, and by an order made The VICE-CHANCELLOR said he thought, and in this cause on the 28th of February, probably the Master thought, that, independently of 1837, Collins was ordered to pay into court the 34th clause, there was no question at all in 5007. admitted by him to be in his possession, and the case. The language of the deed was clear, inde- this sum having been paid in by him, was laid out in pendently of that clause. Then upon the construc- the purchase of 5507. 19s. 4d. Bank Three per Cent. tion of the 34th clause, if persons would use such Annuities. In February, 1840, Collins became language as was used here, it could not be matter of bankrupt. By a decree made on the 23rd of Novemsurprise that different minds should differ in their ber, 1841, Collins and the two trustees were declared interpretation of it. It so happened that the inter-jointly and severally liable for the 1,2501. and certain pretation his Honour put upon it was not that which inquiries were directed to be made by the Master. The bill was filed by the railway company, which, the Master had put upon it. As his Honour read Richard Hobby, the elder, died on the 28th of after setting forth the principal parts of the Acts of the deed, the 34th clanse ought to be construed in January, 1842, without having any child born sub- Parliament under which the railway company was accordance with the 13th, and so as not to contradict sequently to the date of the settlement. Richard constituted and regulated, stated that, by the 68th the 13th. The term "liability," in the 34th clause, Hobby, Thomas Bythell Hobby, Mary Ann Hughes, section of the Lands Clauses Consolidation Act, it he thought, ought to be construed with reference to and Sarah Ann Hobby, the only children who lived was enacted "that if any party shall be entitled to any the 13th clause, and with reference to the words to attain the age of twenty-one years, attained that compensation in respect of any lands or any interest "penalty" and "forfeiture" which preceded it in age in or previously to 1843. Sarah Ann Hobby therein, which shall have been taken for or injuriously the 31th clause. He thought, therefore, this gen- died in March, 1843, and her mother, Jane Hobby, affected by the execution of the works, and for tleman's name could not stand on the list. He did took out letters of administration of her estate. The which the promoters of the undertaking shall not not wonder that there should be a difference of remainder of the hereditaments were sold in January have made satisfaction under the provisions of the opinion upon words so expressed. The costs must 1845, and the proceeds were divided between Jane Act now stating, or the special Act, or any Act income out of the estate. Hobby and her children in certain agreed pro- corporated therewith, and if the compensation portions. On the 14th of June, 1845, Mary claimed in such case shall exceed the sum of 501. Ann Hughes was married to Edwin Hughes. There such party may have the same settled either by arbiHOBBY V. COLLINS. being no probability of obtaining any further sum tration or by the verdict of a jury, as he shall think Fines and Recoveries Act-Married woman- from Collins's estate, or from either of the trustees, fit; and if the party entitled, as aforesaid, desire to Reversionary interest. one of whom had taken the benefit of the Insolvent have such compensation settled by a jury, it shall be Where a married woman is entitled to a portion to Debtors' Act, Jane Hobby, Richard Hobby, Thomas lawful for him to give notice in writing of such his be raised out of real estate at a future period, Bythell Hobby, Edwin Hughes, and Mary Ann his desire to the promoters of the undertaking, stating a deed executed by her and her husband and the wife, by an indenture dated the 12th day of Febru- such particulars as aforesaid, and unless the promoother parties entitled to the estate, and acknow-ary, 1851, and duly acknowledged by Mary Ann ters of the undertaking be willing to pay the amount ledged by her under the 3 & 4 Wm. 4, c. 74, will Hughes, in pursuance of the Act for the abolition of of compensation so claimed, and enter into a written fines and recoveries, &c. respectively assigned, re- agreement for that purpose, they shall within leased, and disposed of the sum of 7281. 11s. 11d. twenty-one days after the receipt of such notice, Bank Three per Cent. Annuities (to which sum the issue their warrant to the sheriff, to summon a jury 5501. 19s. 4d. had by subsequent investments been for settling same in manner in the now stating Act increased), and 957. 9s. 6d. cash to Robert Higgins provided, and in default thereof they shall be liable and John Philpotts, upon trust, after payment of to pay to the party so entitled as aforesaid, the costs, to divide the same in certain proportions. A amount of the compensation so claimed, and the petition was now presented by Jane Hobby, the same may be recovered by him, with costs, by action tenant for life, Richard Hobby, Thomas Bythell in any of the superior courts." That they proHobby, Edwin Hughes, and Mary Ann his wife, ceeded to make and construct the railway Robert Higgins and John Philpotts, praying that and works as by said Acts authorised to be made and after taxation and payment of costs, the residue of constructed according to same Acts of Parliament the sum of 7281. 11s. Ild. stock might be paid to R. and pursuant to the provisions in that behalf therein Higgins and J. Philpotts, as such trustees, and that contained. That by the plans and sections so deposited all further proceedings in the causes might be by plaintiffs, as stated in said first Act of Parlia stayed. ment, it appeared that the railway thereby authorised to be made and constructed was intended to cross a certain road or way leading from the village of Streetbay, situate in the parishes of St. Michael, Lichfield, and Whittington, or one of them, in the county of Stafford, to a certain farm-house and lands called Hill Cottage Farm, situate in said several parishes of St. Michael, Lichfield, and Whittington, respectively in said county, on a level and nearly at right angles. That plaintiff's had made said railway across such road or way pursuant to said Act and within the limits of deviation shewn by the deposited plan therein referred to, and that said Winstanley contended that by a fine a married railway as actually made and constructed by plainwoman could bar a reversionary interest in land, but tiffs and its situation with reference to said road or if not, the statute of 3 & 4 Wm. 4, c. 74, had ex-way and said village, and said farm-house and lands, tended the power, for, by the 77th section, she was enabled to dispose of any estate in any lands, or any moneys subject to be invested in the purchase of lands. He referred also to the 8 & 9 Vict. c. 106, not bar her interest. Semble, that her interest could not have been barred by fine before the statute. By indentures dated respectively the 2nd and 3rd days of March, 1827, certain real estate in the parish of Byford, in the county of Hereford, and elsewhere, was settled and assured to the use of Thomas Eckley and William Hobby, their heirs and assigns, upon trust as to the premises situate at Byford, by sale, mortgage, demise, lease, or other disposition, of a sufficient part or parts thereof, or by all or any one or more of the said means, to raise any sum or sums of money, for the purpose of paying the costs, charges, and expenses, of and incident to preparing and executing the said indenture, and levying the fine therein mentioned, and the costs incident to the execution of the said trusts, and next the mortgage and interest thereon therein mentioned, and subject to the said trusts upon trust out of the rents, issues, and annual profits of the said premises in the parish of Byford, to pay and keep down the interest on the said mortgage, and the interest on any mortgage to be created under the trusts aforesaid, and subject thereto, to pay and permit Jane Hobby, the wife of Richard Hobby the elder, since deceased, to receive and take the rents, issues, and annual profits of the same premises during her natural life for her separate use, without power of anticipation; and after her decease, then by mortgage, sale, demise, lease, or other disposition of a sufficient part or parts of the same hereditaments and premises, or by all the said ways and means, to levy and raise, or borrow, and take up at interest, any sum or sums of money which the trustees or trustee might think proper for the purpose of paying, and accordingly to pay when and so soon as Thomas Bythell Hobby and Richard Hobby should both attain the age of twenty-one years, or die, or one of them should attain the said age and the other of them die under that age, the sum of 2507. to Mary Ann Hobby (afterwards Mary Ann Hughes), her executors or administrators, subject to a gift over to Sarah Ann Hobby in case the said Mary Ann Hughes should die under the age of twenty-one years without having been married, and the sum of 250l. to the said Sarah Ann Hobby, her executors or administrators, subject to a gift over to Mary Ann Hughes, &c., and in case there should thereafter be any children of the said Jane Hobby by her said husband, then also the sum of 2007. for such future child or children, &c. and subject to the trusts aforesaid, upon trust as to part of the said hereditaments in the parish of Byford, for the said Richard Hobby, his heirs and assigns, and as to the other parts of, the said hereditaments, for Thomas Bythell Hobby. And by the said indenture, similar trusts were declared as to the other hereditaments, and the trustees were empowered to decrease the amount of the daughters' portions, and also, at the request of Jane Hobby, during her life, to sell or convey in exchange the said hereditaments, and they were directed to lay out the money to arise by such sale in the purchase of other lands to be vested in the trustees upon the trusts to which the lands sold were then subject. The trustees, on the 1st of February, 1832, sold a large portion of the lands for 3,0507. and after discharging the mortgage debt existing on the said Winstanley, in support of the petition, said that Mrs. Hughes could dispose of her reversionary interest in this sum, it being subject to be laid out in land. He cited Goodrich v. Shadbolt, Prec. in Ch. 333; May v. Roper, 4 Sim. 360; Forbes v. Adams, 9 Sim. 462; and the Fines and Recoveries Act (3 & 4 Wm. 4, c. 74), ss. 1 and 77. The VICE-CHANCELLOR said that it might be assumed that the statute did not narrow the right; that is, that a married woman might bar or convey in all cases in which she could bar or convey by fine before the statute. ss. 6 and 7. v. C. LORD CRANWORTH'S COURT. called Hill Cottage Farm respectively, was shewn upon the plan to the bill annexed, and particularly described. That defendants, Hall, Robinson, and Knight, therein particularly described, were interested in, and they allege that they are the owners in fee The VICE-CHANCELLOR said, that as he under- according to the custom of the manor of Longdon, stood it, this was a sum charged on land, in which in the county of Stafford aforesaid, of said farmthe wife had a reversionary interest, and he con-house and lands, called Hill Cottage Farm with their sidered that she was unable to deal with it. He appurtenances aforesaid. That the distance from must therefore refuse the prayer of the petition. said Hill Cottage Farm-house to the boundary line His Honour added that the point was not new to on the south side of said railway as constructed him; he had often considered it, and was clearly of at the nearest point was about 710 feet, and that no that opinion. part of said farm-house and lands, called Hill Cottage Farm, or of the appurtenances thereto belonging, hath been taken or used, or was required for the purpose of the said railway and works by said first-mentioned Act, or by either of the other of plaintiffs' Acts of Parliament, authorised to be constructed, or for the execution of such works, or, in fact, and that no part of such farm-house and lands had been or was injuriously affected by the construction of the said railway and works, or by the execution of the said works, according to the true intent and meaning of said Railways Clauses Consolidation Act, 1815, and the Lands Clauses Consolidation Act, 1845, or either of them; and said Hall, Robinson, and Knight were not, nor were or was any or either of them entitled to any compensa tion in respect of said farm-house and lands called Hill Cottage Farm, or of their or his interest therein. But nevertheless said Hall, Robinson, and Knight, on 12th December, 1850, served or caused to be served on plaintiffs a notice in writing dated the 2nd of same month, which notice was in the following words:"To the South Staffordshire Railway Company. Whereas, in exercise of the powers con Jan. 31, Feb. 23, 25, 27, and March 22. LORD CRANWORTH'S COURT. LORD CRANWORTH'S COURT. JUDGMENT. tained in the Acts of Parliament relating to the observed that here the railway had been long comSouth Staffordshire Railway Company, you, the said pleted, and that no application had been made by company, have by execution of the works of and the defendants for compensation during the progress belonging to the said railway damaged and inju- of the works. That they had stood by and not comriously affected certain lands called Hill Cottage plained of the company till the railway was comFarm, situate in the parishes of Whittington and St. pleted, and that thereby they had been guilty of Michael, both in the county of Stafford. Now we, laches. That the defendants had not attempted to the undersigned John Hall, William Robinson, and shew that the company had done anything that was Joseph Knight, being the owners in fee, according wrong or beyond the powers given them by their Act to the custom of the manor of Longdon, in the of Parliament. That this case was identical with county of Stafford, of the said lands (which are copy- Smith's case, and was distinguishable from Gattke's hold), do hereby, in pursuance of the statutes in that case, in which the present Lord Chancellor had case made and provided, give you notice that we re-given a contrary decision, as that was a case where quire you to pay us compensation in respect of the the works were in progress, and not like these, said lands, which you have damaged and injuriously which had been completed. affected as aforesaid, and in respect of our interest Parker, in reply, said that the Railway Acts therein, and that the amount of our claim for com- must be construed strictly against companies, and pensation, by reason of the premises, is 5507. And, liberally in favour of an individual. That the sheriff further, take notice, that unless you, the said com- was the party intrusted by the Legislature to deterpany, are willing to pay to us the amount of the mine the question at law as to compensation or not. compensation so claimed, and shall enter into a The cases cited and commented upon at great written agreement for that purpose within twenty-length were Cowling v. Great Northern Railway one days after the receipt by you of this notice, then Company, 14 Jur. 128; Reg. v. The Eastern Counit is our desire that the amount of the compensation ties Railway Company, 2 Q.B. Rep. 347; Reg. v. to be paid to us by you, by reason of your having Lancaster Railway Company, 6 Q.B. Rep. 159; damaged and injuriously affected the said lands as Cougil v. London and Blackwall Railway Comaforesaid, shall be settled by a special jury, according pany, 5 Mann. & Gr. 219; Smith v. London and to the provisions contained in the Act or Acts of North-Western Railway Company, 1 Hall & Tw. Parliament in that case made and provided; and if 364; S. C. 1 Macn. & G. 216; Harman v. Jones, you, the said company, fail to pay the said sum 1Cr. & Ph. 299; East and West India Dock Company of 5501. or to enter into such agreement as v. Gattke, MS. judgment before Lord Truro; Pimm aforesaid, then and in that case we do hereby v. Wilson, 2 Ph. 653; Thicknesse v. Lancaster Railrequest and require you, within twenty-one days way Company, 4 Mees. & W. 472, 492; Hutton v. after the receipt of this notice, to issue your war-South-Western Railway Company, 7 Hare, 279; rant to the sheriff of Staffordshire, or other proper East and West India Dock Company v. Patterson, officer, to summon a special jury for settling the 14 Law T. 369; and the several clauses of the Lands amount of the said compensation as is in the said Clauses Consolidation Act. Act or Acts directed and provided. Witness our hands,' &c. That said notice was accompanied by Saturday, March 22.-The VICE-CHANCELLOR, a letter, dated 12th December, 1850, and written and after stating the general facts of the case and the signed by George Birch, jun. the solicitor of said nature of the motion, said,-The plaintiffs contended Hall, Robinson, and Knight, and addressed to the that the defendants' property was not injuriously secretary of the South Staffordshire Railway Com-affected within the meaning of the 68th section of pany as follows: "Lichfield, 12th December, the Lands Clauses Consolidation Act. The injunc1850. Sir-Booth's trustees and the South Stafford- tion had been granted on the authority of the decishire Railway Company-Herewith you will receive sion of Lord Cottenham in the case of The London and notice of the amount of my clients' claim for damage North-Western Railway Company v. Smith. That sustained by the South Staffordshire Railway Com- was a decision of the late Lord Chancellor on appeal, pany having crossed the only approach to their farm and upon the application being made in this case, he on the level. This claim is made without prejudice (the Vice-Chancellor) had acted upon it without to and independently of my clients' right to have the very attentively considering whether, if the question crossing made as convenient as a level crossing is had been originally before him, he should have come capable of being made. The chief objections to the to the same conclusion. In the old state of crossing in its present state are, that the cottage the law before the statute in question, a party where the gatekeeper resides is too far distant from claiming compensation for injuries or damage the gate, and commands a very indifferent view of to his property from the exercise of the powers the line and the approach of the trains, and that with given by Parliament in such cases, applied for the present gates, which, when opened, do not ex- a mandamus to compel the company to take steps tend across the line, the driving of cattle and other to summon a jury, and upon that application the stock to or from the farm is attended with great risk right of the party to compensation under the Act both to the occupier and the railway company. Your was judicially determined, and the mandamus was obedient servant (signed), George Birch, jun. To issued or refused according to the circumstances. the Secretary of the South Staffordshire Railway Under the Lands Clauses Consolidation Act, the Company." order of proceeding was changed. A person claiming payment or compensation might fix his own amount, and the company must, in twenty-one days, either pay the amount so fixed, or summon a jury to assess the true amount. If the company summoned the jury, and the amount was assessed, they might leave the person to bring his action for that amount, when the question of his right to any compensation might be tried, or if they declined to summon a jury he might bring his action for the amount, according to his own estimate, and then the right was tried at once. There is no mistaking the grounds upon which Lord Cottenham proceeded in Smith's case. After mentioning the supposed inconvenience which might result in the old state of the law, Lord Cottenham proceeded thus:-"So stood the law. Then comes an Act of Parliament which, for the purpose of correcting that supposed evil, creates a much greater one, by depriving the company of the means of ascertaining the question of right before they go to the sheriff's jury to assess the amount of compensation. That circumstance alone, if it were not within the general jurisdiction of the Court, would be quite sufficient to justify the interposition of this Court, because it would not be just to permit a party to be involved in that sort of litigation without first ascertaining whether the right claimed existed as between the party and the company against whom the claim is made." Now, with the most profound respect for everything that fell from that most eminent judge, he (the Vice-Chancellor) could not agree in that reasoning. The change in the state of the law might be unwise, but it was the Act of the Legislature. The Legislature pointed out the steps which should be taken, and what right Bethell and Speed, in support of the injunction, had this Court to say that the party should contended that the principle on which equity inter- not assert the legal right which the Act gave feres to restrain parties from improperly exercising him. [The Vice-Chancellor then read at length the a Common Law right was clearly laid down in Blake- 68th section.] The case had been likened to the relief more v. Glamorganshire Canal Company, 1 My. & given by this Court against penalties; but the cases K. 154, and that the Lord Chancellor Cottenham were not analogous. It was rather making than adhad decided Smith's case on that principle. They ministering the law to restrain the legal proceeding The bill then expressly charged that no damage or injury whatever had been done by the construction of the railway and works to defendants' said lands or right or easement appurtenant theretoand that a jury summoned as aforesaid would have no power or authority to determine or entertain the preliminary question, whether said defendants were or were not entitled to any compensation in respect of the premises. The bill then prayed for an injunction to restrain the defendants from further proceedings under the notice, or from taking any proceedings under the Lands Clauses Consolidation Act for settling the amount of compensation. Affidavits had been filed in support of these statements in the bill upon which the ex parte injunction had been obtained. Affidavits had also been filed on the part of the defendants, which raised the issue as to whether damage or injury to the defendants' land had been done, and as to the amount of compensation. Jas. Parker and Willcock, in support of the motion to dissolve the injunction, contended that there was a remedy at law. If the defendants had received no damage, the jury might find that there was no damage. That the question ought by some means to be put in a course of adjudication before a Common Law tribunal, and that the order for the injunction ought to have been accompanied by some direction to that effect: That here there was a Common Law right, and a Court of Equity had no power to take away a legal right, and that the common injunction to stay any execution on the judgment would have answered all the purposes of justice. LORD CRANWORTH'S COURT. in such a case. In this view he was emboldened by the late case of East and West India Railway Company v. Gattke, before the present Lord Chancellor, who had discharged an injunction granted by ViceChancellor Wigram, on the authority of the case before Lord Cottenham. He admitted the force of the reasoning in Gattke's case; and the only thing he could venture to dissent from was the existence in principle of the distinction which the present Lord Chancellor had drawn in his judgment between that case and Smith's case. I think there is no distinction in the circumstances whether what has been done by a railway company is a public wrong or a private injury. However, whether there was any such distinction or not, there was nothing in the case now before him to exclude the authority of Gattke's case. In that case the defendant made a claim against the company for the sum of 480l. as compensation due to him for damage and injury alleged to have been sustained in consequence of the dust and dirt occasioned by the company having damaged his goods, and by reason of his customers having been compelled, by the obstructions occasioned by the company's works, to quit the side of the road on which the defendant's shop was situated and to pass on the opposite side, by reason whereof he alleged, that during several weeks he had sustained great loss in his trade, and had been injuriously affected and injured by the company having stopped up a lane or passage, along which he was entitled to a right of way, to an entrance at the back of his premises. The present Lord Chancellor, in his judgment, says—“ If the Legislature has made it the duty of the company to issue the precept to compel payment of the compensation in the event of the plaintiff being found entitled to the performance of that duty, that cannot operate as an admission on the part of the company, who have no discretion after the compensation jury shall have decided that he has sustained damage for which he is entitled to be compensated, the claimant is to enforce payment by a formal proceeding for that purpose, which used to be by a mandamus; and if the jury had no jurisdiction to decide upon the right, it followed that that question of the right might be raised upon the return to the mandamus. But since the decision of Cougil v. The London and Blackwall Railway Company, 5 Mann. and G. 219; and Williams v. Jones, 13 Mees. and W. 628, it seems the remedy of the claimant is by action upon the judgment," and he dissolved the injunction granted by Vice-Chancellor Wigram in that case. I think this decision completely in point, and I must dissolve the injunction which I granted upon the authority of Smith's case in the present one. Injunction dissolved, but without costs. Comnion Law Courts. COURT OF QUEEN'S BENCH. Reported by ADAM BITTLESTON and PAUL PARNELL, Esqrs. Barristers-at-Law. Jan. 31 and Feb. 22. RUMBELOW v. WHALLEY, Costs-Payment into Court-Rule T. T. 1 Vict. In an action of debt for work and labour, the defendant pleaded except as to 101. nunquam indebitatus; as to the excepted 101. payment of 101. 1s. into court; with a further plea of payment as to another and different 101. parcel, &c. The plaintiff took out the 101. paid into court, in satisfaction of the causes of action to which it was pleaded, and joined issue on the two other pleas. The defendant failed upon the plea of the general issue, but succeeded upon the plea of payment, and became entitled to the general costs of the cause: Held, that the plaintiff was entitled to all his costs as to such causes of action in respect of which the money was paid into court, up to the time of the replication to the plea of payment into court, including the costs of such replication. This was a rule obtained by the plaintiff, calling upon the defendant to shew cause why the Master should not review his taxation of the costs herein. The action was in debt upon a surgeon's bill, with one count only for work and labour done, and goods sold and delivered. The defendant pleaded, 1. (except as to 107. parcel, &c.) nunquam indebitatus; 2. As to 101. (other and different parcel, &c. from that before excepted), payment; and, 3. As to the excepted 107. payment into court of 107. 1s. in satisfaction of all causes of action in respect of the said sum of 101. and all damages sustained by its nonpayment. The plaintiff took issue on the first plea, traversed the payment alleged in the second plea, upon which traverse the defendant joined issue, and, as to the third plea, the plaintiff replied that he accepted and took out of court the money so paid in, in satisfaction of the causes of action in the plea mentioned, and prayed judgment for his costs and charges in that behalf. At the trial the matter was referred to an arbi trator, who found for the plaintiff as to the first QUEEN'S BENCH. issue, viz. that the defendant was indebted to a larger G. R. Clarke shewed cause. The matter is so fully discussed in the judgment JUDGMENT. QUEEN'S BENCH. Nov. 19 and Dec. 6. DOE dem. EVERS et Ux. v. CHALLIS and ANOTHER. the plaintiff to the alternative of accepting in discharge of his whole demand whatever sum the defendant chooses to pay into court, or to proceed for more at the risk of the costs of the suit. If, however, the original debt is larger than the sum the defendant chooses to pay into court as the balance, and thus he is obliged to plead an affirmative plea, and he pleads to reduce the original debt, he necessarily insolates the sum so paid in from the residue of the declaration, and so entitles the plaintiff to accept that in discharge of the cause of action in respect of which it is paid into court, and to receive all the costs thereon. The authorities are quite in accordance with this view. Harrison v. Watt, 4 D. & L. 519, is identical with the present case in all points; Goodee v. Goldsmith, 2 M. & W. 202, is to the same effect. M'Lean v. Phillips, 7 C. B. 817, proceeds on the very distinction above pointed out, though it was not expressly noticed by Saturday, Feb. 22.-PATTESON, J. delivered the the Court, for there the money was pleaded to the judgment of the Court. This was an action for work whole declaration, and the replication claimed and labour done, &c. The defendant pleaded, as to damages ultra. Neither is the distinction so frivolall but 101. never indebted; secondly, as to another ous a one, in reference to the present rule of Court, and different sum of 107. payment; thirdly, as to as at first sight might, perhaps, be thought. Supthe 107. excepted in the first plea, payment into pose to a declaration for goods sold and delivered, court of 101. Is. and that he never was indebted to and for work and labour, the defendant pleads paythe plaintiff in more than 107. in respect of the said ment into court as to the goods sold and delivered, sum of 107. and that the plaintiff had not sustained and never indebted as to the work and labour, the greater damages than 1s. In respect of the non-plaintiff accepts the money paid in discharge of the payment of that 107. the plaintiff replied, joining account for goods sold and proceeds to trial as to issue on the plea of never indebted, and traversing the work and labour and fails; it seems clear he the plea of payment; and as to the plea of payment would, under that rule of court, be entitled to the into court, accepted the sum paid in, and prayed costs as to the goods sold and delivered. But sup-, judgment for the costs in that respect. At the trial pose the defendant paid that sum into court as to a verdict was found for the plaintiff on the plea of the whole, and the plaintiff had gone on for the never indebted to the extent of 107. beyond the sum larger sum and failed, he would be within the meanpaid into court, and for the defendant on the plea of ing of the latter part of the rule. Whether it would payment. The Master, on taxation, has allowed the be right or not to alter the rule, so as to give the defendant all the costs of the suit, deducting only plaintiff costs up to the time of payment into court, the plaintiff's costs as to the issue on the plea of where it appears plain he was right in bringing the never indebted. In so doing he has followed the action, it is not for us to determine; but as the rule last decision in this Court, though there have been now stands, we are of opinion such a case as the one or two former decisions the other way. A rule present is not within the latter part of the rule, nisi was obtained for reviewing this taxation by though it is within the former, and the taxation must disallowing the defendant all his costs anterior be reviewed. It is not contended that the defendant to the plea of payment of money into court, so is entitled to costs subsequent to the payment into far as relate to the causes of action to which court, independently of that rule. The rule must be the plea was pleaded, and allowing the plaintiff all made absolute. Rule absolute. his costs as to such causes of action up to that time, including the costs of the replication to the plea of payment into court. The question turns on the rule of Trinity Term, 1 Vict. which is this: "The plaintiff, after the delivery of a plea of payment into court, shall be at liberty to reply to the same by accepting the sum so paid into court in full satisfaction, and discharge of the cause of action in respect of which it has been paid in, and he shall be at liberty in that case to tax his costs of suit, and in case of nonpayment thereof within forty-eight hours, to sign judgment for the costs of suit so taxed, or the plaintiff may reply that he has sustained damages, or that the defendant was and is indebted to him to a greater amount than the said sum; and in the event of an issue thereon being found for the defendant, the defendant shall be entitled to judgment and his costs of suit." By the language of this rule, it is plain that it contemplates payment into court either in respect of the whole causes of action, or in respect of the amount directed by the Court; and in either case it gives the plaintiff his costs of suit, if he accept the money so paid into court in discharge. It is equally clear, it gives the defendant his costs of suit only where the plaintiff replies damages, or a debt to a greater amount, and there is an issue thereon, that is on such allegation of a greater amount of debt. In the present case there is no such issue; therefore it is not within the words of the latter part of the rule; but it is within the words of the earlier part of the rule, because the plaintiff has accepted the money in discharge of the cause of action in respect of which it was paid into court. To such a plea as the present the plaintiff could not reply a greater amount of debt, since it is impossible for a person to be indebted in more than 107. in respect of 107. The defendant by adopting this form of plea has insulated his defence to one part of the declaration from the rest, and so prevented the raising such an issue as would bring the case within the latter part of the rule if found for him, or give him the costs of the suit. If he had pleaded to the whole declaration payment into court of 107. 1s. and no debt ultra that, he would have driven the plaintiff either to accept that sum in discharge of the causes of action, or to have replied a debt ultra, and to have incurred the risk of having to pay all the costs of suit if he had failed on that issue. Here the defendant could not so plead, because he was indebted at one time in a greater amount than the sum paid into court, and was obliged to plead as he did to get rid of that greater amount by a plea of payment, which could not be joined with a plea of payment into court upon the whole declaration. It comes to this, therefore, that whenever the only question intended to be raised by the pleadings is as to the amount of the original debt, the defendant can put A testator devised his estate to his daughter E. for Malins argued for the plaintiff, Peacock for the The following authorities were cited:-Doe dem. Dolley v. Ward, 9 A. & E. 582. Doe dem. Herbert v. Selby, 2 B. & C. 926; Loddington v. Kirne, 3 Lev. 431; Ginger v. White, Willes, 348; Goodright v. Dunham, Doug. 251; Maintain v. Taylor, 2 Russ. & M. 416; 2 Jarman on Wills, 702; Gulliver v. Wicket, 1'Wils. C. C. 105; Meadows v. Parry, 1 Ves. & B. 124; Murray v. Jones, 2 Ves. & B. 313; Mackinnon v. Sewell, 5 Sim. 78; Wilson v. Mount, 2 Beav. 397; Cole v. Sewell, 2 H. L. 186; Festing v. Allen, 12 M. & W. 279, Lewis on Perpetuities, 170; Bull v. Pritchard, 1 Russ. 213; Duffield v. Duffield, 1 Dow. & Cl. 268; Newman v. Newman, 10 Sim. 51; Blagrove v. Hancock, 16 Sim. 371; Proctor v. The Bishop of Bath and Wells, 2 H. QUEEN'S BENCH. Bl. 358; Goring v. Howard, 16 Sim. 395; Leake v. JUDGMENT. ་ 11 East; Fowler v. Down, 1 B. & P. 44; Nelson v. JUDGMENT. and has never been questioned, seems to us quite COURT OF COMMON BENCH. Reported by JoHN THOMPSON and DANIEL THOMAS EVANS, attorney was given voluntarily on the part of Friday, Nov. 15. NEWNHAM V. STEVENSON and WOOD. Fraudulent preference-"Jus tertii”. Misdirection. Goods, the property of S. a trader, were seized by the sheriff under fi. fa. and by him assigned to plaintiff, by a bill of sale, on the 21st of June, 1849, under a judgment founded on a warrant of attorney, given by S. to plaintiff in the preceding February. The goods remained on the premises occupied by S. till the 11th of September following, when plaintiff took possession of them, and S. quitted the house. On the 5th of October, whilst plaintiff was in possession of the goods, the defendants distrained. On the 8th S. filed a petition in bankruptcy, and on the 23rd assignees were duly appointed. The assignees never interfered with or demanded the goods, but they commenced an action of trover against plaintiff for the conversion of the goods. In an action on the case brought by the plaintiff against the defendants for excessive distress, &c. the learned judge directed the jury that, “ if the warrant of attorney was given voluntarily by S. to the plaintiff for the purpose of securing the plaintiff, while the rest of the creditors would be unsecured, it was a fraudulent transaction and void, and that in such case the bill of sale would convey no property to the plaintiff, who would not be the owner of the goods and could not maintain the action:" Held, a misdirection. Held, also, that the defendants being wrong-doers cause. Byles, Serjt. Gray, and Pashley, in reply. The following authorities were cited in the course of the argument:-Leeke v. Loveday, 4 M. & G. 972; Tope v. Hockin, 7 B. & Cr. 101; Rowe v. Ames, 6 M. & W. 747; Horlock v. Tollemache, 5 Scott, N. R. 329; Docker v. Hasler, 10 Moore, 210; Everett v. Wells, 2 M. & Gr. 269; Ex parte Philpott, 1 De Gex, 346; Oswald v. Thompson, 17 L. J. 235, Ex.; Ex parte Norton, 1 De Gex, 504; Ross v. Clifton, 11 A. & E. 631; Hall v. Wallace, 7 M. & W. 353; Butler v. Hobson, 5 Scott, 798; Hardman v. Wilcock, 9 Bing. 382. Contrà :--11 Geo. 2, c. 9; Marshall v. Barkworth, 4 B. & Ad. 508; 7 & 8 Vict. c. 96, s. 41; Webb v. Fox, 7 T. R. 391; Winterborn v. Morgan, COMMON BENCH. have done anything to affect the plaintiff's title They had not demanded the goods of the plaintiff, they had not even ratified the defendant's act before the commencement of the action of trover, which may be abandoned at any time, and which, as soon as the goods came into pos session of the defendant, lawfully could not, without more, be taken to be the election on the part of the assignees to avoid the transfer. We need not, therefore, consider the question which might have arisen JERVIS, C.J.-This was an action on the case, in had the assignees interfered: until they do interwhich the declaration contained four counts-first, fere the plaintiff, without doubt, was himself not for distraining for more rent than was due; second, only in possession, but the owner of the goods, and for excessive distress; third, for selling within the defendants, being wrong doers, cannot set up the five days; fourth, for selling the goods for less title of the assignees. The plaintiff was in actual than they were reasonably worth. Then there possession; that is, prima facie evidence of prowas a count in trover. The defendants pleaded not perty. The case of the defendants is, that the guilty by statute, and to the count in trover pleaded plaintiff's property was acquired by a transfer from not possessed. At the trial the plaintiff abandoned the bankrupt, which the assignees, and they only, the two last counts. The goods distrained had been had a right to question. They do not shew that the property of Saunders, a trader, and were seized they have questioned it. The plaintiff had the sole by the sheriff of Surrey, and by him assigned to the property, and ought to keep the goods against all plaintiff by a bill of sale, on the 21st of June, 1849, others. The cases of Leake v. Loveday, 4 M. & G. under a judgment founded on a warrant of attorney 972, and Hardman v. Willcock, 9 Bing. 382, in a given by Saunders to the plaintiff in the month of note, were relied on in the argument for the February preceding. After the assignment, the goods defendant. In Leake v. Loveday, the plaintiff remained on the premises occupied by Saunders; but brought trover for goods not in his actual possession on the 11th of September the plaintiff took posses- at the time of the conversion. It was therefore nesion of the goods, and Saunders and his family left cessary for him to shew a title, which he did by the house. On the 5th of October, while the plain- shewing that at the time the goods were his. In tiff was in the possession of the goods, the distress was answer to this case, the defendant proved that the put in, and on the 8th of the same month Saunders goods, at the time of the conversion, were, with the filed a petition in bankruptcy, on which he was consent of the plaintiff, the true owner thereof, in declared a bankrupt, and on the 23rd assignees the order and disposition of a person who had comwere appointed. It was not proved at the trial mitted an act of bankruptcy, and against whom a that the assignees had interfered with or de-commission had issued; and that the title which the plaintiff once had was at an end; and the consent of ratified the act of the defendant, but they had com- the plaintiff, together with the bankruptcy, transmenced an action of trover against the plaintiff for ferred the property and right of possession of the the conversion of the goods. For the defendants, it assignees as effectually as if the plaintiff had sold and was contended that the execution was a fraudulent delivered the goods to the bankrupt; in which case, preference and an act of bankruptcy; that the pro-whether the assignees claimed the goods or neglected perty passed to the assignees, and that the plaintiff to do so, the goods would be theirs, and not the could not recover. To this it was answered the jus plaintiff's. There the goods were in the order and tertii could not, under the circumstances, be set up; disposition of the bankrupt; here they were transat all events, the plaintiff being in possession, might ferred from the bankrupt by fraudulent preference. maintain the action. In the summing-up, the Lord The distinction is obvious, and that case, when proChief Justice told the jury, that if the warrant of perly understood, ought not to govern the present case. In Hall v. Wallace, 7 M. & W. (supra), Saunders for the purpose of securing the plaintiff in the plaintiff had no property in the goods, special the event of a bankruptcy, while the rest of the or otherwise; they had been removed by collucreditors would be unsecured, it was a fraudulent sion between him and the insolvent, to whom transaction and void, and in such case the bill of sale they had belonged; they had been sold by an aucwould confer no property on the plaintiff, who would tioneer employed by the plaintiff, and on an action not be the owner of the goods, and could not main- for money had and received, the assignees interfered. tain the action. The jury found the warrant of at- The jury found the plaintiff's possession arose out of torney was given by Saunders as a fraudulent pre-fraud concocted between him and the insolvent to ference of the plaintiff over the other creditors, in defeat the other creditors. The principal question contemplation of bankruptcy. Upon this finding a was whether the auctioneer was bound to account to verdict was entered for the defendants. In Michael- the plaintiff; but the Court held, inasmuch as the mas Term, my brother Byles obtained a rule nisi for insolvent could not have brought the action against a new trial on the ground of misdirection, which was the auctioneer, so neither could the plaintiff, who discussed in the same Term, and we have taken time got possession by fraud between him and the insolto consider our judgment that we might examine the vent. It becomes unnecessary to express any opinion authorities which were cited, and be enabled, by on the other point discussed during the argument, reference to the notes of the evidence, and summing namely, whether the assignees could impeach the up, to ascertain correctly the facts which raise the act of bankruptcy. For these reasons we are of point, and the manner in which those facts were opinion that the rule for a new trial should be made left to the jury. It is unnecessary to consider whether absolute. Rule absolute. the direction of the learned judge was confined to the fraudulent preference strictly so called, or was intended also to comprehend a transaction intended only to protect the goods against the creditors, but to pass no property to the plaintiff; because the jury found the warrant of attorney was a fraudulent preference, and on that finding the verdict was entered. On the facts proved, and on this finding of the jury, we are of opinion the verdict ought not to have been entered for the defendants; that the learned judge misdirected the jury, and that the rule for a new trial must be made absolute. It is not necessary to determine whether the bare possession of a mere wrong-doer will, as against another mere wrong-doer, entitle the former to maintain trover or trespass, nor need we on the present occasion advert to the distinction in this respect between trespass and trover recognised by the civil law, and noticed in some cases. Here the finding of the jury imports that Saunders intended the property to pass, and the plaintiff to be preferred to others. The plaintiff must take the property in the goods, and, if no bankruptcy had intervened, he would have been an indefeasible owner in possession of the goods, and might have maintained an action. The effect of the bankruptcy, and the fraudulent preference, is not to put the goods in the same situation as if the goods and execution had passed to the assignees, so as to vest them at once by the bankruptcy in the assignees, independently of election on their part; but by the Welsby and V. Richards now shewed cause. It transfer, which is a fraudulent preference, the pro- appeared that the plaintiff claimed as heir-at-law of perty vests in the transferee, subject to be divested the testator, Evan Hughes. The defendant was the by the assignees, and the title by that transfer is widow and executrix of Evan Hughes, and claimed perfect, except so far as it is avoided by the assig-in her character of executrix, not as devisee. The nees. The assignees in this case were not proved to will was in the following terms: "I subject and COURT OF EXCHEQUER. Reported by FREDERICK BAILEY and C. J. B. HERTSLET, Esqrs. Barristers-at-Law. Feb. 12 and 13. DOE dem. JONES v. HUGHES. A will contained the following clause: "I subject and make liable all my real and personal estate, with the payment of my just debts, funeral, and testamentary expenses, and charges attendant thereon, the legacy hereinafter by me bequeathed, and subject thereto, and to the payment thereof; I give and devise the rents and profits of all and singular my messuages, tenements, farms, and lands (except my Bala houses) to my wife;" and it appointed her sole executrix and residuary legatee: Held, that such charge on the real estate for payment of debts, &c. did not give the executrix an implied power of sale or mortgage. In this case an ejectment had been brought by the lessor of the plaintiff to recover from the defendant, who was the tenant in possession, certain houses at Bala. The action was tried at Dolgelley, at the last Summer Assizes, before Talfourd, J. when a verdict was returned for the lessor of the plaintiff, with leave to the defendant to move to enter a nonsuit. In Michaelmas term Bearan obtained a rule nisi to enter a nonsuit, or for a new trial. EXCHEQUER. make liable all my real and personal estate, with the payment of my just debts, funeral and testamentary expenses, and charges attendant thereon, the legacy hereafter by me bequeathed and subject thereto, and to the payment thereof; I give and devise the rents and profits of all and singular my messuages, tenements, farms, and lands (except my Bala houses), situate in the parish of Llanfyllin and Llanycil, unto my dear wife, Ann Hughes, for and during the term of her natural life, and that my said wife has a power to charge one-half of the value of my Llanfyllin property, and to be at her own disposal; and, after her decease, I give and devise my messuages called Brynmoer, Bryndn, and Eu Bach, unto my relation, Hugh Hughes, his heirs and assigns for ever. I give and devise, after my wife's decease, all and singular other the farms, tenements, messuages, and lands situate in the parish of Llanycil and Llanfyllin unto my friends and relations, Robert Jones and Cadwalader Jones, their heirs and assigns, for ever. I give and bequeath unto my friend Edward Rowlands 51. for making this my will." The rest of his property he devised and bequeathed to his wife, to be at her disposal, and appointed her sole executrix of his will; and she, under legal advice, proceeded to mortgage the Bala property. The question was, whether the charge of debts, funeral and testamentary expenses, gave to the executrix a power of appointment for the purpose of meeting those charges, or, in other words, whether the executrix had a power which enabled her, for the purpose of paying the debts, &c. to pass the legal estate to her nominee, who would be in effect a devisee under the provisions of the will. The difficulty on the part of the executrix was, that no estate was given to her by the will. 2 Powell on Devises, 667; Forbes v. Peacock, 11 M. & W. 630 S. C.; 11 Sim. 152, and 12 Sim. 528, 541; Anon. 3 Dyer, 371 b, pl. 3; Anon. 2 Leonard, 220, pl. 276; Viner's Abridg. tit. "Devise;" Tylden v. Hyde, 2 Sim. & S. 238; Ward v. Devon, 11 Sim. 160; 1 Sug. on Powers, 133, 134, n. 7; Carter v. Goslin, 1 Coll. 644; 1 Wms. Exors. 511; Bentham v. Wiltshire, 4 Maddox, 44; Patton v. Randall, 1 Jac. & Wal. 189; Shaw v. Borror, 1 Keene, 559, were cited. In all these cases there was a devise and appointment, or an express direction and devise to sell. It will be found that, without exception, the words "to be sold" occur in all the cases cited; that in 3 Dyer is certainly the strongest. The legal estate descends to the heir-at-law, and there is no power to appoint arising from a mere charge. There may be a power by implication in the executor, because it is his duty to administer, but he can only do it through a Court of Equity. ALDERSON, B.-The strongest case was the case in Dyer, where the testator appointed lands for the payment of his debts; here he has only charged them, but he has not said for what purpose. In Dyer it was an appointment of a particular estate in general for payment of debts; in this case it is a general charge on all the lands with the exception of particular land,--for what purpose those lands were excepted nobody knows. Rule discharged. INSOLVENT COURT. Thursday, March 6. (Before Mr. Commissioner PHILLIPS.) A creditor receiving due notice of the hearing of an Ann Hughes, it is unnecessary to determine. It with funeral and testamentary expenses, which was appeared pretty clear that there was not, so that an immediate purpose, which could not be long the Bala houses passed in fee to the lessor of the delayed, that it must be implied that he meant the plaintiff. The question is whether the executrix to executrix to sell. Now we have considered those the will, who appears to have been in want of money cases, and we have found no authority for such a for the purpose of paying the debts and pecuniary proposition. As to the exception in this also, "exand testamentary expenses of the testator, had a right cept my Bala houses," which he does not wish to to sell or mortgage the Bala houses for the purpose devise, it might be said to be his intention that the of raising the money. She took advice upon the Bala houses should be sold, although, perhaps, not subject, and in order to save the expense of an equity the other property, for the purpose of paying the suit, the property being very small, she took upon testamentary expenses and charges, just as if he had herself to mortgage the property to a third person, made an appointment of the Bala houses to be sold who advanced the money. The question is whether, for that purpose, and as if he had given a power to under the will, she had any right to do so. In the the executor for that purpose. But we are of opinion course of the argument many of the cases upon this that this really carries the case no further; it only subject were brought before us, and it was con- subjects the estate in the hand of the heir-at-law to tended on the part of the executrix that the effect of a charge for funeral and testamentary expenses, and a charge on the real estate with debts was to give her the charges attending the proof of the will, which an implied power of sale; but on looking through the executrix must enforce through the medium of a those cases, it is perfectly clear that there is no one court of equity, and therefore we think in this case case that goes to the extent of that proposition. the executrix had no power to sell or mortgage that There is a class of cases which shews that if the real estate. She was led into a mistake by the advice she estate were devised to trustees charged with the has received for the purpose of avoiding an equity debts of the testator, that those charges impose on suit. It is not within the principle of any of the the trustees the trust of raising money to pay those cases, in which it has been held that there is an im debts, and the estate being given to them, they can, plied power of sale and an implied power of mortthrough the means of their estate, raise money for gage by the will. We have perfectly satisfied ourthe payment of those debts. There is another class selves on that head, and therefore the result is the of cases, of which several were cited; the last is rule in this case must be discharged. Forbes v. Peacock, 11 M. & W. 630, which decides that if it appear, from the whole purview of the will, that the testator means his real estate to be sold, and the proceeds of that real estate to be distributed for the purpose for which it is given, which the executors alone by law could perform, then, that there is an implied authority-an implied power-given by the will to sell the estate, and that the executor who is to distribute the money is the proper person to sell it. Several cases were cited which confirm that proposition. And, upon looking to these cases, there is not a single case or a single authority which says that the simple charge of the estate, with the payment of debts, does more than make a charge upon the estate in the hands of the devisee if the estate is devised, in the hands of the heir-at-law if the estate devolves by the law of inheritance upon the heir-at-law. The only authorities which had the aspect of constituting the executor, or giving the executor or executrix an implied power to sell, was the dictum of Vice-Chancellor Shadwell in the case of Forbes v. Peacock, twice before him, and also before the Court of Ex.; and in one of those cases, in 12 Simon's Cases in Chancery, the Vice-Chancellor of England is reported to have said, "If a testator charges his real estate with the payment of his debts, that, prima facie, gives his executor power to sell the Mr. Cooper said, that being unwell at the original Tomlinson, Beavan, and M. Lloyd, in support.estate, and to give a good discharge for the purchase-hearing, and being informed that there could not be If this rule is not absolute, real estate can only be money; that was all that I decided on the argument a final adjudication, as there were imperfect services, made chargeable by a suit in equity. In effect, the of the demurrer." If that is correctly reported, it he had reserved his opposition for to-day. defendant is a devisee under the will, and if in such would imply that the Vice-Chancellor was of opinion Mr. Commissioner PHILLIPS disallowed the oppocases it were necessary to resort to a Court of Equity, that a simple charge of debts without more-without sition. it would generally result that the whole estate would any terms in the will indicating such an intention on be exhausted in costs, whilst the debts, &c. remained the part of the testator, was an implied authority unsatisfied. A charge of debts on the property is given to the executor to sell, that would be a solitary equivalent to a direction to sell the property for the authority, because there is none other to be found payment of debts. The mode of expression is of no that goes to the same extent. But the Vice-Chanconsequence, if it can be seen that the intention of cellor is merely stating what he had stated before. the testator was that his debts should be paid. The The first time the case of Forbes v. Peacock was stat. 3 & 4 Wm. 4, c. 104, renders freehold and before him, the proposition he is there reported to copyhold estates assets for the payment of debts. The have stated, in the 11 Simons, is quite distinct from Legislature intended that enactment to operate as a this: there it is perfectly clear that he gave his devise for their payment, and in such a case as this opinion upon the supposition that the will in that there is no occasion for a suit in equity. [ALDER- case authorised the sale of the property; that the SON, B.-How can the jury ascertain if the personal testator meant it to be sold; and that the executor estate has been exhausted without a suit in equity?] was the proper person to carry that intention into If the testator had fixed the mode of dealing with his effect; and he cites, in giving his judgment, a case of estate, that is all that is requisite. The question is Ward v. Devon, before him, which was to that this, whether the testator is to make arrangements effect. "Sell all off, both the real and personal profor liquidating his debts, or reluctant parties are to perty, and divide the produce between my wife, be compelled to do so by a suit in equity. [PARKE, Mary Ann Ward, and my sons and daughters, each B.-You mean, that if there is an express power to to share alike. The law gives the house at Teddingsell, the purchaser is not bound to inquire about the ton to the youngest son; but it is my will to sell all. debts owing?] In the charge of debts, &c. the I appoint Mr. Robert Ward, my brother, and my testator has placed the realty in the same category wife, Mary Ann Ward, my executors." That was as the personalty, shewing that he intended that the whole of the will, and he held, in that case, there they should both be subject to the same powers. was clearly a power to sell, which must be executed When it appears on the face of a will that there is by the executors; and so upon the purview of the no trust commensurate with the power vested, that whole will, in Forbes v. Peacock, he was of the same power may be executed by the executor. Millward opinion, and that was the opinion which the Court of v. Moore, Saville, 72, the same case as reported Ex. on the case sent to them, also entertained. That Anon.3 Dyer, 371; Elliott v. Merryman, 3 Barnard- was the law on the subject. When the case was beiston, 78; Ball v. Harris, 4 Myl. & Cr. 264; Dalton fore Vice-Chancellor Bruce, he expressly guarded v. Hewen, 6 Mad. 9; Blagrove v. Blagrove, 4 Ex.; himself from saying that he decided the effect of a Curtis v. Fulbrooke, 19 Law J. 65, Ch.; Williams simple charge of the estate would amount to a power v. Chitty, 3 Ves. 545; Manning v. Spooner, S. V. to sell: in fact, there is no case that goes to that 117; Harwood v. Oglander, 8 Ves. 124; Newman extent. The only doubt that we entertained in our v. Johnson, 1 Ves. 44, were cited. minds was, whether there was enough enabling us Cur. adv. vult. to say that the testator meant his estate should be sold for the same purpose-it was not that he subFriday, Feb. 14.- PARKE, B. after going jected his real estate merely to the payment of his through the facts of the case and reading the just debts, but his funeral and testamentary exwill. There is no doubt the Bala houses, not penses, and charges attendant thereon, "and the being devised by the will to any devisee, passed legacies hereinafter by me bequeathed," subjecting to the heir-at-law; whether there was a remainder it to a charge of legacies. He clearly gives no power of the Bala houses after the death of the wife, of sale; but it was suggested, charging the estate JUDGMENT. Monday, March 17. (Before Mr. Commissioner Law.) Re EDWARD HENRY TAYLOR. Contracting debts without reasonable expectations of payment-Debts in Trade. Debts for goods in trade may be contracted mithout reasonable or probable expectations of payment. This insolvent was a paperhanger and glass-cutter, residing at Holloway. The aggregate amount of his debts was 2341. The debts, with consideration, were, 1857. His insolvency was occasioned by losses by contracts and illness. He was opposed by Mr. Alfred Goslett, glass merchant, Soho-square, upon the ground that his debt, amounting to 637. 4s. 8d. for goods in trade supplied in 1850, was contracted without reasonable and probable expectations of payment. The insolvent took a place of business in Holloway, not being clear of debt at the time, and he carried on his trade for nine months, during which he had goods from the opposing creditor to the amount of 637. which he sold for 751. but did not pay him any thing. The COURT remanded the insolvent for eight calendar months, for contracting the debt without reasonable or probable expectation of payment. PROTECTION CASE. Re WILLIAM HILL POWell. Semble, that neglecting to make payments pursuant to the terms of the proposal made upon the granting of the final order, is a contempt of Court, of which the Court may always take notice. When a proposal is made, the Court will be guided by circumstances in granting or withholding the final order, but it disapproves of withholding the final order. This insolvent was a messenger of the court. He made a liberal proposal for the payment of his debts, which was acceded to by almost all the creditors. A point was mooted as to whether the final order should be granted at once, or the protection renewed from time to time, as the payments were made. according to the ordinary practice. |