. 23, 23,] action, a deed was executed between the defendant of the first part, T. F. of the second part, F. C. of the third part, and the several persons, creditors of the defendant, who executed or assented to the same, of the fourth part. The plea set out the deed verbatim. The following were the material clauses: Clause 4. As soon as the trustee shall, in writing under his hand, certify that these presents have been executed, or in writing assented to or approved of by a majority in number, representing three-fourths in value of the now existing creditors of the debtor, whose debts respectively amount to 10%. and upwards, the debtor shall pay to each of his now existing creditors such a sum of money or composition dividend as shall be equal to the amount of 5s. in the pound upon the whole debt now due to such creditors respectively. Clause 10. "Unless and until these presents shall become void (under clause 12), the creditors who have executed or assented to the deed, their executors, &c., shall not commence or prosecute any action at law or suit in equity, or obtain any adjudication in bankruptcy against the debtor, his heirs, &c., on account of any debt or claim provable under these presents;" and, in case of any doing so, "this agreement shall operate as an effectual release of such debt or claim, and all demands in respect thereof, and may be pleaded in bar." the trustee gives the certificate under clause 4, the assenting creditor has a right of action in case of nonpayment, but has the non-assenting creditor?] He has his action for the full amount. [Bramwell, B.— Where is the right of action between the assent of the majority in number representing three-fourths in value and the giving of the certificate?] It is suspended, as in the case where a promissory note payable at a future day is given in satisfaction of the debt. Hidson v. Barclay (10 Jur., N. S., 751; in error, 34 L. J., Exch., 217) shews that clause 12 does not make the deed bad. [Holl.-I do not dispute that. Clause 12 in itself is unobjectionable.] POLLOCK, C. B.-I am of opinion that the plaintiff is entitled to our judgment. The plea sets up a deed drawn up under the authority of an act of Parliament which has been productive of more litigation than any other in our time. Questions of great difficulty have arisen under this statute. One rule applicable to it is. that a deed is not valid which contains unreasonable conditions. The objection most ordinarily brought forward is, that the deed does not place all the creditors on the same footing. In the present case, if the deed were otherwise valid, I do not know that I could say all the creditors were not placed by it on the same footing. But this deed provides that the composition is not to be paid until a certain person has certified that the requisite number of creditors has assented. Clause 12. In case and as soon as the trustee shall at This condition is wholly novel, and wholly unwarany time hereafter certify, by writing under his hand, ranted by the act of Parliament. I cannot see what that a sufficient portion, in his judgment, in number and right there can be to introduce such a clause; and a value of the creditors of the debtor, has not executed, or difficulty is thereby created, for if no certificate is in writing assented to, or approved of these presents, or given, there can be no distribution. The act directs, the provisions hereof, or in case the debtor shall fail to that when, as a matter of fact, a majority of creditors pay the amounts herein covenanted to be paid by him, and three-fourths in value have assented to the kind or any of them, or any part thereof, to the creditors or of deed specified, it shall take effect. This deed, which creditor to whom the same are or is respectively due, makes a provision inconsistent with that enactment, upon the same being demanded by such creditors or is not within the statute, and I think the non-assentcreditor, then and in either of such cases these pre-ing creditors are not bound by it. sents and everything herein contained shall, except as to any acts or things heretofore done in pursuance hereof, and without prejudice to any right of action heretofore accrued hereunder, cease and be void. The plea went on to state, that a majority in number, representing three-fourths in value of the creditors, had assented to the deed on affidavit thereof duly filed; and that all the other requirements of the statute relating to such deeds had been fulfilled. Averment, that the defendant became, and was, entitled to the benefit of the several clauses, &c., and to plead the same in bar of the action. Demurrer to the plea, and joinder in demurrer. Holl, for the plaintiff.-The provisions in clauses 4, 10, and 12, looked at together, are unreasonable. The 12th makes provision that the debtor may be sued on making default in payment, but he cannot make default until the trustee has certified under clause 4. If the creditor sued in the meantime, the deed would be pleaded to the action. The trustee might subsequently declare the deed void, under clause 10, but the creditor's remedy would be gone for ever; and it will be seen that the trustee may delay to certify for any length of time, and there is the chance of his dying. There is no allegation of tender or of payment. The deed purports to bind non-assenting creditors. Harington, for the defendant.-It is the duty of the trustee to give the certificate within a reasonable time; and it will not be presumed that he will do otherwise. That being so, the trustee's certificate appears a convenient way of ascertaining the time for payment of the composition. Clause 10 can apply only to assenting creditors. [Bramwell, B.—When BRAMWELL, B.-I am of the same opinion. The fourth clause is unreasonable in point of law. I do not say that is inexpedient; nor do I think that we can assume that the trustee would not do his duty; nor do I put it on the ground that one person cannot be substituted for another who is designed by the act, although that objection might be fatal; but I think that when the act has said that the deed shall take effect on a certain event, it is unreasonable to fix a further period for its operation. I agree with the Lord Chief Baron in thinking that this objection is fatal to the deed. I think the deed would be less unreasonable if it provided that the deed should not be binding on any of the creditors until a certificate had been given. CHANNELL, B.-I agree. It is not necessary to say whether the provision was inexpedient, and I do not wish to suppose that the trustee would not do his duty; but supposing the provisions of the deed were fairly worked out, the plea is no answer to the action. We must assume that the requisite creditors have executed; and as to them there is no difficulty; but what is the position of the plaintiff with regard to the deed, whom we must assume to have neither executed it nor assented to it? If the deed is to be supported, it must be supported as a deed of composition. Now, everything relating to composition or payment is contained in clause 4; and if that clause were out of the deed, it would be invalid. If that clause provided for payment on the requisite number, &c. assenting, I do not say that the deed would not be good, but the clause is clogged and fettered by the introductory words which make the payment dependent on the trustee's certificate, for which there is no time fixed. When the statute declares that the deed shall operate by the as sent of a certain number of creditors, and an affidavit of the fact being lodged in the registry, I see no reason for resorting to any other mode of ascertaining the fact. This seems to shew that the fourth clause furnishes no valid consideration to make the deed a good deed of composition. And if we look elsewhere in the deed for any provision to make the deed a good deed in that way, there is none to be found. PIGOTT, B.-I am of the same opinion, for the same reasons.-Judgment for the plaintiff. A master's expenses, at the rate of 11. a week, allowed from the arrest of the vessel in March, 1863, to July, 1864, when the defendants applied to have the cause put off. The facts of the case have been fully reported, ante, p. 90. This was a motion on the part of the defendants to review the registrar's taxation of the defendants' bill of costs. Cur, adv. vult. Brett, Q. C., and Lushington, for the defendants. E. C. Clarkson, for the plaintiff, in support. Dec. 5.-DR. LUSHINGTON.-In this case I have to consider the validity of an objection taken by the defendants to the taxation of a single item in their proctor's bill of costs. The bill contained a claim of 4677. 108. for the detention and hotel expenses of a witness for twenty-one months and a quarter, the twenty-one months and a quarter being calculated from the 14th March, 1863, the date of the institution of the cause, to the 20th December, 1864, one week after the delivery of the judgment. The witness was the master of The Bahia, Captain Dugas. He was never, in fact, called, but the defendants maintained that he was, nevertheless, properly detained as a necessary witness, and that the charge of 4677. 10s. was a reasonable charge for such detention. The registrar, however, disallowed the claim altogether, but finding that the master had attended in court at the hearing to give evidence, if necessary, thought it fair to allow for the expense of such attendance, at the same rate as would be usual in the case of a witness of the same position, reasonably brought to London from Ramsgate, and attending the court for two or three days, or as would have been allowed to the master himself, if he had come up for examination before an examiner. It is against this decision that the defendants now appeal. It is unnecessary for me to state the facts of this complicated case. They are set out at full length in the judgment of the cause, reported 11 Jur., N. S., 90. I do not apprehend that there is any doubt as to the law on the subject. The practice at common law in circumstances like those of the present case, so far as I can venture to give an opinion, seems to be well settled. If a party entitled to his costs, claims costs for the detention of a witness, a strict scrutiny is made to ascertain that the witness is a necessary witness, and was detained, because detention was the necessary means to ensure attendance; if it appears that, though a witness, he was in reality detained for another purpose, as, for instance, to watch the proceedings in the suit, his expenses will not be allowed. Still, if it is proved that the witness's attendance was required, and his detention was necessary to secure it, the er penses of such detention will be recoverable as part of the costs of the suit. (Mount v. Larkins, 8 Biz 195; Berry v. Pratt, 1 B. & Cr. 276; Howes v. Bre, 18 Q. B. 588; William Dowdell v. The Australim Eyal Mail Steam Navigation Company, 3 El. & Bl. 912 The first question, then, is, was the master a sary witness ? It is true, that in the event the mase. was not called upon to give any evidence at all, zi that the cause did not turn upon any issue of fact. Still, the broad fact remains, that this was a suit against the vessel in respect of the detention of the cargo. In such a suit, the master can hardly fail to be a necessary witness; and, in the present case, a appears that the counsel for the defendants did consider the master a necessary witness. Nor do I derstand that this was questioned by the registrar. It may, therefore, be assumed by the Court, and I may add that, in my opinion, the fact that the master's evidence might have been taken before an examar at an earlier stage of the suit, makes no differas: for, until the hearing actually took place, the a could not be sure in respect of what matters is dence would be required. The second quetin & whether it was necessary to detain the master, to secure his evidence? The registrar, I apprehend va of opinion that the cause of the master's detection was not that he should give evidence in this coun The master was, indeed, detained at Ramsgate during the whole continuance of the cause in this court from first to last; but then the beginning of the period of his detention was not coincident with the beginning of the cause, nor the end with the end. His detention began on the arrival of the vessel, seve ral weeks before the arrest of the vessel, and lasted many months after the delivery of the judgment This appears from the dates:-"1863, Feb. 2, master executes deed of abandonment at Ramsgate; 1864, March 13, vessel arrested; March 22, judgment of Court of Cassation; Dec. 13, judgment delivered in Admiralty Court; 1865, June, the master leaves Ramsgate in The Bahia, for Dunkirk." The registra was also of opinion, that there were reasons for holding the French litigation to have been the cause of the master's detention. The vessel itself was at Ramsgate, and it was greatly to the interest of the owner the she should remain there; for the master had, on the 2nd February, 1863, executed a deed of abandonment of her; but by the French law this was not complete until a proper certificate had been given of the unnavigability of the vessel. The underwriters, however, disputed the abandonment, wanted to remove the ve sel to Dunkirk, and, in consequence, the consul-gener of France had prohibited the vice-consul from givin the certificate. Until then, for the question as to the validity of abandonment was concluded by the decree of the Court of Cassation (not delivered until the 2 March, 1864), it was still an open question whether the vessel remained the property of her original owner or had passed to the underwriters; and, consequently, whether Captain Dugas, as being in the service of the owners, was still master of her. The registrar thought that under these circumstances it would be natura and I agree, that the master should remain with the vessel watching the progress of affairs, and that if the abandonment was declared invalid, he should reme command. And this is what he actually did; he never ceased to be master (see his affidavit of the 11th Apr 1863); he never did leave the vessel; and, finally be navigated her from Ramsgate to her original port of destination, Dunkirk. Such seem to have been the reasons on which the registrar acted, and certain? Dec 30,7 1865 [Court of Appeat.] THE JURIST REPORTS. [Court of Appeal.] 1009 bewolle od Jon fiw 29aneqz9 and pige Jivabitis un bis 210libers to redmon m181459 8 10 1405 they are entitled to great weight. But, on the other shednew of this list, although he was present at the next hand, what was then in lititgaion with the under-meeting of the directors, at which the minutes of the prewriters which rendered necessary the master's presencevious meeting would be redd: Held (reversing the de at Ramsgate? The place of that litigation was not at Ramsgate, nor in England, but in France. Again the vessel was put of the control of the master, it not immediately upon the execution by him of the deed V : cision of the Court below) that he was not liable as a contributory for the twenty-five additional shares! boog This was an appeal from a decision of the Master of bosh adt addam 03 noierzorg yas rot boob sila mi of abandonment, at all events, after the vessel wastories of Mr. Tothill was properly placed who had placed Mr. Tothill on the list of above company for fifty shares. It was admitted that placed under arrest by this Court. The master was I 7 upon the list in respect of twenty-five shares, and the only question was as to the remaining twenty-five shares. YT: ANIMⱭA HO Tя90 of the company, sighed the memorandum of associathe company was formed in March, 1861, and Mr. Tothill, who of the promoters and directors Weber has distinctly deposed that he was detailed, tion for twenty-five shares. On the 12th April, 1861, and detained solely, in order to give evidence. If so he forwarded a formal application to the company to detained, it makes no matter that during his detention allot him fifty shares, or any less number, subject to he came up to town from time to time to give instruc- the regulations of the company, and at the same time tions to the proctor, although if his detention had he paid a deposit of 50%, being 17. per sharere 1 been only for the purpose of enabling him to conduct The articles of association provided that the qualithe cause, the mere fact that he also gave evidence fication for a director should be the holding of fifty would certainly be no ground for applying for the expenses of his detention. For these reasons, I cannot agree with the registrar, who disallowed the master's claim altogether. I think, upon the whole, that it was necessary to detain him in order to secure his evidence, shares. No allotment was made to Mr. Tothill wa vas Which to any could to 10007. would one year's working, and seeing that to 66007, are subscribed for as fol sufficient for onena that from and that his being also occupied in the concerns of the of the capitat 660 shares, eded a bed statement of the 660 lows." shares, and Mr. a name appeared as the holder the 1 On the 11th September another meeting of the directors was held, at which Mr. Tothill was present; minutes of the last meeting would then be read over in the usual way, but there here was no evidence that they in fact read over, and Mr. Tothill denied all knowledge of the list. Iso pried ratsup & bas grònon name of of Mr. Tothill was placed upon the list for fifty shares. The facts connected with the pro were The motion and constitution of the company fully appear in Roney's and Stock's cases (10 Jur, N. S., 790, 812).10 Baggallay, Q.C and Millar, for Mr. Tothill, referred to Roney's and Stock's cases (10 Jar, N. S., 790, 812); Marquis of Abercorn's case (8 Jur., N. S., 951) Best's case (ante, p. 498); and Thompson's case (Id. 574, 958) bu tud redtogoils mials sdt howolnetb Southgate, Q. Co and Swanston, contra, cited Mauds ley v. Field (17, Sim 157) Carmichaels case (Id. 163); Yelland's case for Ge G & S 395) Cablmey's case (5 Jur., N. S., 77); and Bloxam's ease (33 Beav. 529), od J ship does not entirely destroy the claim. There remains, then, the question of quantum. The master claims no less than 4674. 10s. for his detention and hotel expenses daring a period of twenty-one months and a quarter. I consider this claim exorbitant; the rate claimed is too high. It is at the rate of 221. per month, whereas the master's wages on board ship were, exclusive of provisions, only 61. per month. And it must be remembered, that all a witness who is detained is entitled to, is maintenainee according to his rank in life. I think the equity of the case is, to disallow all claim for wages, as the master was engaged in the affairs of the ship, but to make a moderate allowance for subsistence. Again; the period of detention claimed for is too long. It appears that in July, 1864, when the Cause was ripe for hearing, the defendants, to suit their own convenience, had the hearing put off till the November term. I consider the master cannot claim for detention during the time that the cause was unnecessarily protracted by the defendants. Upon the whole, I shall allow the defendants a sum which I think adequate to meet the necessary expenses of the master's maintenance from the arrest of the vessel on the 13th March, 1863, to July, 1864, when the defend ants applied to have the cause put off. I fix this sum Sir G. JTURNER, LOJThis is an application on at 11 per week. I can give no costs, the claim which the part of Mr. Tothill to take his name off the list of was made being exorbitant,od of top and contributories of the above company in respect of Proctors For plaintiffs, Clarkson, Son, & Cooper; for de twenty-five shares. It appears that he had originally Kodi bors fendants, Rothery) to Jo) ad to signed the memorandum of association for twenty five aig a pesup noq us In PR 10 (452), shares, and the question is, whether he afterwards agreed regory and bonis nou o zav et toutake twenty-five shares more. The case is first put COURT OF APPEAL IN CHANCERY upon his application for allotment of fifty sharës. tod Now, it appears upon the evidence that no allotment Re LLANHARRY HEMATITE IRON ORE COMPANY was made to him and as far as the case rests upon an (LIMITED) TOTHILL'S CASE Dec. 5 and 6, ed allotment, it falls to the groundofor there was no Company Contributory Tothill's proposal to take fifty shares or any less numwild tedion, I bos agreement on the part of the company to accept Mr. A director of a company, in which the qualification for uber, and Mr. Tothill cannot be made a contributory director was fifty shares, signed the memorandum of upon his application merely, which was not a proposi association, for twenty five shares, and applied for and tion absolutely to take fifty shares, but to take fifty paid the deposit on fifty shares. No allotment of shares or any less number; subject to the regulations of was made to him, At a meeting of the directors, at which he was not present, a list of the shareholders was drawn up, including his name for fifty shares, and entered on the minutes. There was no direct evidence that No.573, VOL. XI., NEW SERIES. relied on in support of such an agreement. First, it was said that there was a resolution of the board on the 3rd September, 1861, in which there was a list of the persons who had agreed to subscribe for shares, and in this list was the name of Mr. Tothill for fifty shares, and that the resolution found its way into the books of the company in this mode:-A contract was about to be entered into for the opening of the mine, and it was necessary to ascertain what the amount of capital was. The resolution stated, that "in a calculation of the capital with which the company could be started, it was found that from 750l. to 1000l. would be sufficient for one year's working, and seeing that 660 shares, equal to 66007., are subscribed for as follows;" and the name of Tothill was included for fifty shares. the shares. Mr. Tothill's name must be struck off the list for the twenty-five additional shares; but there can be no costs either here or in the court below. Sir J. L. KNight Bruce, L. J.-I think that this case is one of unusual difficulty, but not so mach as to make it fitting to dismiss the appeal. The c stances and evidence are such as to render itse sary to decide the case, having regard to the sa which the burthen of proof lies. That burthen upon the side of the respondent, and I cannot see that he has discharged it. I concur with my learned brother. I repeat, that it is a case of very great difficulty. SPOKES v. THE BANBURY LOCAL BOARD OF HEALTH. A Public body-Nuisance-Contempt-Sequestration ment. But independently of the entry in the books of the company, it was said, secondly, that there was a list of subscribers made out by the secretary, and it was argued, that upon the resolution of the 3rd September, or by reason of Mr. Tothill's name being entered on the company's list, he was bound to take these shares. Now, with respect to the resolution, Mr. Tothill most distinctly alleges-"I was not present at the meeting of the 3rd September, and I never saw the resolution upon which the official liquidator relies, nor did I hear of it until after the proceedings for the winding up of the company had commenced, and I never received any notice of an allotment to me." Here is a positive denial, which is either true or untrue. If it was untrue, it was for the official liquidator to cross-examine the gentleman upon his statement; An order for sequestration for contempt granted agains but although Mr. Tothill thus left himself open, not a public body having property vested in it for vacat one question was put to him. I cannot, therefore, public purposes, it appearing to the Court that the assume that the statement which he made was untrue, was property on which the sequestration would operate and credit must be given to it. And if the statement be true, it seems to me impossible to say that there This was a motion for a writ of sequestration against was an agreement on the part of Mr. Tothill to take the Banbury Local Board of Health for disobeying fifty shares in the company independently of his ap-injunction granted against them, by a decree made in plication, or that there was an agreement on the part of the company to allot him fifty shares on his appli cation. It was said, however, that although he did not know of the resolution, he must have known of the list, from the presumption that, as a director of the company, he knew what was in the company's books. But what did appear in the company's books? The rough draft of the minutes did not contain the list of the persons who had subscribed; it only stated that 660 shares had been subscribed for; and this statement would not hold him liable for 50 shares. In the face of the evidence, it would not be fair to presume a knowledge on the part of Mr. Tothill of that list, which, I believe, did not exist in the company's books. Something might be said on the question, whether he could be made absolutely liable for the shares, even if he had been fixed with the knowledge of the entry; but it is unnecessary to decide that point. The purpose of the list was to know what had been subscribed, and not by whom the capital was to be taken; and there was nothing in that list which bound the company to give Mr. Tothill the shares for which he applied. It would be difficult to say, because the company made out the list of subscribers to see whether they were to carry on the works for one year, that they were to be bound to give shares in conformity with that list. Suppose the works had turned out profitably, and a great many had applied for shares, would the company have said, "We cannot part with any of the 660 shares which we have entered as subscribed for?" It would be difficult to say so; but I mention the matter, to distinguish the case from Bloxam's case, for in Bloxam's case there was an entry made which bound the company to give him Quare, whether the time named for compliance will be injunction could have been extended, except by a Can appeal, as the injunction was granted by decree, and not by interlocutory order? the cause on the 1st March, 1865, whereby they were restrained from permitting sewage, after the 1st July, 1865, from passing into the river Cherwell, so as to render it unfit for use by the plaintiff at his mili or otherwise injurious to the health of the persons resi dent there. It appeared that the defendants had not stopped the sewage, but that they had been trying to discover mens by which it might be rendered inoffensive. Evilen was given as to the property belonging to the defc ants, which they alleged that they held in trust for the different purposes and duties imposed on them. Thy also alleged that they had been most anxious to remove the annoyance, and that if they had failed, it had been from the insuperable difficulties they had to c tend with, and not from any desire to treat the order of the Court with contempt. tend the time for making their arrangements ber No application was made by the defendants to er the 1st July, 1865, when the order became absolute. Rolt, Q. C., and Renshaw appeared in support of the motion. Giffard, Q. C., E. F. Smith, Q. C., and Dickinson, f the defendants. The defendants are a public body, with public property only, vested in them for differ purposes, and a sequestration would paralyse them carrying out the various duties imposed on them by acts of Parliament. The defendants are acting f the benefit of the public, and they could nos hare stopped up the drains. Besides, though they out perhaps, to have made a formal application to exter the time allowed them, yet there has been no w contempt of Court; but they have, on the contrary done all in their power to carry out the order. this had been the case of an individual he would a 30 have been committed. The right course now would discharge the order of the Vice-Chancellor. Sir W. P. WOOD, V. C., only called for a reply on the question as to the mode of enforcing the order. Rolt, Q. C., in reply on this point. This is a deliberate breach, and we ask for a sequestration, which is the only practical mode, and which we are clearly entitled to; and we are not bound to enter into evidence as to the property to which it will apply; but we do not object to the motion standing over, so as to enable us to move against the individual members of the board. [The cases of The Attorney-General v. The Council of the Borough of Birmingham (4 Kay & J. 528); The Attorney-General v. The Great Northern Railway Company (4 De G. & S. 89); and Seton on Decrees, 945, were referred to.] The Sir J. L. KNIGHT BRUCE, L. J.-Speaking for myself alone, this motion appears to me to be groundless and frivolous. The decree is still standing, and while it stands the sequestration is a matter of course, due by the law of the country to the plaintiff as the means of enforcing the decree which he has obtained. Against that decree and the injunction awarded, there has been no application whatever; no attempt to vary it, or to dissolve the injunction, and no appeal. The present appeal must be refused, and, if my learned agrees, with costs. brother Sir G. J. TURNER, L. J.-I concur. The injunction which has been granted has been violated by the defendants; and whatever else may be in question, this plaintiff has of enforcing the decree of the Court in is obvious that sequestration is the only means the his favour. The defendants say that there has been them any wilful intention of disobeying the injuncno wilful breach of the order; but I do not ascribe to tion; indeed, their acts shew that there has been no Court. Their case amounts to this- that they are purposed intention of defeating the decree of the unable to discover any method of preventing the sewage from polluting the water at or near the property of the plaintiff; but the answer to this is, that they must not discharge it into the river at all. It was then urged on their behalf, that there should be could be reheard, or until other means could be dea suspension of the sequestration, either until the cause Sir W. P. WOOD, V. C.-I think that in this case the defendants have been labouring under a very great mistake, which I attempted to dissipate in the Birmingham case, and the order in that case was obeyed, without appeal. There I was told that the town of Birmingham would be stifled, and perhaps subjected to pestilence, if the board were not allowed to discharge the whole of their sewage into the river, in which the plaintiff, a private gentleman, had certain rights. It appeared to me quite plain, upon the act of Parliament, that they had no right to discharge their sewage into the river, and I did not in the least regard the circumstance of their acting for 100,000 people, any more than I should have regarded the circumstance of their acting for one single person; and I think that must be the true principle of law. What diffe-vised, by consultation with distinguished engineers and rence can it make as to the commission of an illegal wished that the parties had agreed to this; but the chemists, of disposing of the sewage. I could have act, whether a man acts on behalf of thousands or on behalf of himself only? The act being illegal, the plaintiff is unwilling to agree, and the Court must, party injured has a right to be protected; and it does therefore, dispose of the case as it stands. The Court, in making the decree, must have been satisfied that not signify whether the injury is inflicted by many or there was material injury to the plaintiff, and that the by one. Now, as regards the question of wilful breach of mischief would be continued if the sequestration were suspended. It is not contended, or even suggested, this injunction, it was said, that if this were the case that the mischief has been at all diminished, except of an individual, the Court would not commit him unless it was convinced that there had been a wilful moment there is a larger flow of water in the river by the accidental circumstance, that at the present breach. I answer, without doubt, that if this had than usual; but this is no sufficient reason for susbeen the case of an individual, I should have considered what has been done as a breach, and I should pending the execution of the writ. Moreover, the have committed him. Assuming it to be the case of application with that object ought to have been made an individual, the matter will not bear argument for a moment, and I am very glad that illustration was put, because it corroborates my strong opinion, that the rights of those who are injured cannot depend npon the question of whether it be one or many who inflict the injury. [After further discussing the question, his Honor held that a clear breach of the injunction had been committed, and that it was doubtful whether the time could have been extended, as the order was not interlocutory, and he continued:] It is, therefore, quite plain that the plaintiff cannot be protected except by simply stopping the sewage, and that is the course which the defendants ought to have taken. They created the evil; it did not exist until they made their works. That question was tried at the hearing, and I cannot now rehear the cause, and those who created the evil must remove it. It is not for me to say how; they must take their own steps. The only doubt I had was as to the sequestration, and that was, whether it would be effective. I see, however, a certain class of property which I do not wish to specify, but on which I think it could operate; and therefore I shall grant the sequestration, and the costs of this motion must, of course, be paid by the defendants. Dec. 15.-The defendants now moved to vary or to the Vice-Chancellor. It was then said that this was trust property, and that sequestration could not properly go against trust and it will be for him, in enforcing his remedy, to see property. But the plaintiff has a right to the order, that he does not unduly do so, and to ascertain against what parts of the property of the defendants the writ can properly be executed. The motion must be refused, with costs. Note for reference-Set. Dec. 945. ROLLS COURT. Re THE TRUSTS OF THE WILL OF GEORGE INSOLE.- Mortgage of wife's personal property in reversion-Judi- A husband and wife mortgaged reversionary personal property of the wife, held under a will dated in 1830. They were afterwards judicially separated. The fund then fell into possession, the husband being still living :Held, that the wife was absolutely entitled to the fund to the exclusion of the mortgagees. This was a case decided as to the effect of a judicial |