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36. An act for repairing, maintaining, and improving the line of the road from Leeds to Otley in the West Riding of the County of York.
37. An act for making and maintaining a road from the road leading from Glasgow to Carntyne, called Duke Street, to the east end of Blackfriars Street or Regent Street in the said city of Glasgow.
38. An act for better maintaining the road from Gillow Hollow in the parish of Diddulph in the County of Stafford to the Congleton and Leek turnpike road at Park Lane in the township of Congleton in the County of Chester, with the road therefrom at Lick Lane in the said parish of Biddulph.
39. An act ft:r further and more effectually repairing, amending, and maintaining certain roads in the county of Roxburgh, and other roads connected therewith, leading into the counties of Berwick, Northumberland, and Durham.
40. An act for more effectually improving the several roads from Newcastle-under-Lyme to Darlaston Bridge, Butt Lane, and Linley Lane, and through Trent Vale and Stoke-uponTrent to Shelton Wharf, all in the county of Stafford.
41. An act for maintaining, repairing, and amending turnpike roads from the town of Antrim in the county of Antrim towards Coleraine in the county of Londonderry.
42. An act for maintaining, repairing, and amending, a turnpike road from Belfast to Lisburne by Malone and by the Falls, and two turnpike roads leading from the Falls Road by Dundrod and Castlerobin respectively to Crumlin, in the county of Antrim.
43. An act for more effectually amending the roads from Manchester in the County of Lancaster through Oldham to Austerlands in the County of York, and from Oldham to Ashton-under-Lyne, and from Oldham to Rochdale, and other roads, and for making and maintaining new lines to communicate therewith, all in the said county of Lancaster.
44. An act for making and maintaining a turnpike road from Butterhotise Green in the county of Chester to Thorneley Lane End in the county of Lancaster.
45. An act for amending two several acts, of the seventh and tenth years of his late Majesty King George the Fourth, for repairing the road from Ashborne in the county of Derby to Leek in the county of Stafford, and from Ryccroft Gate upon Rushton Common to Congleton in the county of Chester.
46. An act for repairing and maintaining the road leading from Elland Bridge in the parish of Halifax into the Dewsbury and Elland Turnpike Road near the obelisk in the parish of Dewsbury, all in the West Riding of the county of York.
47. An act to enable the managers of the Sun Life Assurance Society to appropriate any part of the profits thereof for the benefit of any persons who have already effected or may hereafter effect policies of assurance with the said society.
48. An act to continue for a limited term of years the acts relating to the police of the city of Glasgow; to vest the management of the Siatute Labour Conversion Money of the said city in the board of police thereof; and for other purposes therein mentioned.
49. An act to continue for a limited term of years the police act for the barony of Gorbals in the county of Lanark, and for other purposes relating thereto.
50. An act to enlarge the powers of an act passed in the third year of the reign of hU present Majesty, intituled "An act for making a railway from London to Greenwich."
51. An act for constructing a harbour, dock or docks, piers, and other works at Trinity in the parish of North Leith and county of Edinburgh.
52. An act for better supplying with water the town and borough of Swansea in the county of Glamorgan.
53. An act for making a canal from the Stourbridge navigation near Brockmoor in the parish of Kiugswinford in the county of Stafford to the Oak Farm Colliery, with a branch to the Standliills, both in the said parish of Kiugswinford and county of Stafford.
54. An act for making and maintaining certain resorvoirs in the several township* of Holme, Cartworth, Austonley, Upperthong, Wooldale, and Hepworth, in the several parishes of Kirkburtou and Almondbury, in the West Riding of the county of York.
55. An act for better supplyiug with water the town of Wakefield and the neighbourhood thereof in the West Riding of the county of York. 8
56. An act to alter and amend an act of the last session of parliament, intituled " An act for making and maintaining a pier wharf and other works at Greenwich in the county of Kent;" and to extend the powers of the said act.
5/. An act for more effectually draining of certain fen lands and low grounds in the honor manor, und parish of Wormegay in the county of Norfolk, and other lands and grounds which are now drained by means of or through a certain drain called "Polver Drain" in the said county.
58. An act for removing the markets held in the city of Worcester in the county of Worcester for the sale of cattle, horses, sheep, and pigs, and for providing another market place in lieu thereof, and for providing for the better and more effectual draining the said city.
59. An act to alter and amend an act of the sixth year of the reign of bis late Majesty, for opening certain Streets in the Burgh of Duodee, and for otherwise improving the said burgh.
60. An act for building a bridge over the river Tweed at or near to Mertoun Mill in the county of Berwick, and for making avenues and approaches thereto.
61. An act for the uniform valuation of lands and tenements in the county of Waterford in Ireland, for the purpose of levying the county rates therein.
62. An act for the recovery of small debts within the southern division of the Hundred of Roborough andwithiuthe hundred of Plympton in the county of Devon, and within the Southern division of the Hundred of East iu the county of Cornwall.
[ To he continued.]
SELECTIONS FROM CORRESPONDENCE.
PRACTICE AT JUDGES' CHAMBERS.
In consequence of the note you appended to my letter at p. 275, stating your belief that the fees received by the Judge's clerks were accounted for and paid to the Treasury, I have made enquiry on the subject, and am informed that the tees alluded to, flo not form part of those paid into the treasury, but are vacation fees, and arc received by the clerks for their own use, and not accounted for to any one.— Further, that the sums received by the vacation Judge's clerks for summonses and orders alone, during the present vacation, amonnt to upwards of 1000/.; a sum I should be afraid to mention, did I not conceive I had the information from good authority.
EarU dhanccllar'rf Court.
LIABILITY OF TRUSTEES AND OP THEIR
One of tiro trustee! transferred the trust fund to the other, by whose default it iras lost to the cestui que trust in remainder .Held, that the estate of the solvent trustee, after his death, and after it was distributed among his legatees, teas liable to supply the deficiency of the trust fund.
This was an appeal from a decree of the Muster of the Rolls. The bill was filed in 1K<3, for the purpose of recovering from the estate nf Mr. Grant, then deceased, a sum of I,n00/., of whicb he bud formerly been trustee with another person, also deceased, and which, on the request of the parties beneficially entitled iu possession, bad been transferred by Mr. Grant to his co-trustee, and subsequently lost. It appeared, that in 1807, the father of the plaintiff's made a voluntary settlement to the use of himself and wife for life, and of the survivor of them, and after the decease of the survivor, to such of their children us should outlive them, and to their issue In 1311, at the request of the settlor and his wife, Mr. (irant transferred the trust fund to his cotrustee, by whom it was converted to his own use. No steps were taken to procure a re
transfer of the fund for several years after the plaintiffs, who were the children of the settlor, and who must be presumed to have been cognizant of the facts, had arrived at majority. Not only Mr. Grant was dead, but his estate had been administered some years before the bill was filed; and on this ground, and also that there was no equity in pursuing his assets into the bunds of his legatees, it was contended that the bill could not be supported. The Master of the Rolls, however, thought that the assets of Mr. Grant were still liable to be applied in replacing the trust fund, and he made a decree to that effect.
Mr. Barber, Mr. Koe, and Mr. Lotrndei appeared for the defendants, the executors and legatees of Mr. Grant, in support of the appeal.
Mr. Wahefield and Mr. Daniel supported the decree of the Master of the Rolls, and contended that the sum must be restored, and that the suit was instituted as early as possible after the children of the settlor obtained vested rights, and were qualified to sue.
The Lord Chancellor.—The two plaintiffs claimed by virtue of a settlement which gave a life interest to their parents, with remainder to such children as they might have. It appeared that in 1811, Mr. Grant, one of the trustees, had been prevailed upon to transfer the stock, which was the subject of the settlement, into the name of his co-trustee only, by whom it was sold out, and eventually lost to the cestui que trusts. The trustee who had made the transfer died about twenty years ago, and his estate was distributed among his legatees and creditors, under a decree of the Court. One of the plaintiffs was born in 1804, and the other in 1807, and consequently both were of age some years before the filing of the bill in 1833. The object of the bill was to obtain contribution from the legatees of Mr. Grant, a sum equal to that which had been lost to the plaintiffs. It was objected that assets could not he followed after presumed acquiescence in the administration, after so long a delav, and in circumstances which shewed a full knowledge of the breach of trust so long before proceedings were taken. But even after administration with the sanction of the Court, and without notice of the claims of a creditor, assets might be followed. It was the settled principle of the Court that a legatee took his legacy subject to all claims that could be made on the f und out of which it was payable; so much so indeed that it was the practice formerly to require security from legatees against such claims; and though that was now discontinued, the liability to refund still remained. There was another point whicb was argued, namely, whether it would be proper to inquire as to the plaintiffs' knowledge of the breach of trust when it was committed: but at that period, in 1811, one of the plaintiffs was only seven years old, and the other four, and though the bill was not tiled until 1833, some years after the youngest came of age, still the delay was uot a sufficient reason for refusing the relief prayed for. The judgment 340
Superior Courts: Lord Chancellor.
of the Master of the Rolls was right, and therefore the appeal must be dismissed, with costs.
March v. Huuetl and others, Sittings in Lincoln's Inn, July 20, and August 3, 1837.
CONSTRUCTION OP CONTRACT.
Circumstances in which it teas held that m contract for the occupation of land, not amounting to a lease, iras still a valid agreement, operating as a licence to keep possession oj the land.
This was mi appeal from a decree of the Master of the Rolls. The bill was filed for specific performance of an agreement, alleged by the plaintifl' to have been entered into with the defendants, and it stated among other things, that in the year 183.'), and long previously, Mr. Nelson had been tenant to Mr. Bridges, of a piece of laud near Bradford in Yorkshire, which he used as a stone quarry, desiring to enlarge the area of ground so employed. Mr. Nelson contracted in Feb. 1833, for 1200 additional square yards, and immediately afterwards began to work, and to extend the posts and rails by which his former plot of ground had been meted out. The defendant by his answer denied any licence to extend the quarry, and the question between the parties was, whether he had granted such licence. Lord Langdale on the hearing of the cause was of opinion that the evidence produced by the plaintiff, amounted to proof of an agreement, and decreed performance accordingly, and also ordered an injunction to restrain an ejectment brought by the defendant to recover possession of the land.
Sir C. Wetherell, Mr. Shirrow, and Mr. L. Wigrum, were. heard in support of the appeal from that decree.
Sir William Horne and Mr. Elmslry, contri.
The Lord Chancellor.—The plaintiff in this case was tenant to Mr. Bridges, of a piece of land which he used as a stone quarry, and being desirous of extending the area, he entered into an agreement, as the bill alleged, for an additional quantity of land. Mr. Bridges denied having made any agreement for a further demise, and asserted that he had only granted a licence to dig stone, which was revokable at any time, and which he did revoke, and took proceedings at law to recover possession of the additional 1200 yards. The whole question depended upon the balance of testimony as to the contract said to hare been made. His Lordship was of opinion thai the evidence proved a licence, though not a lease; hut many and most mines were worked upon similar terms. The issue being whether the landlord had assented to the setting out of the additional 1200 square yards, for the use of the plaintiff, he thought this was proved, and therefore, as the order of the Master of the Rolls directiug a specific performauce of the contract, was substantially correct, he ordered the appeal to he dismissed with costs.
Xelson v. Bridges.—Sittings at Lincoln's Inn, July 21 and 29, 1837.
Circumstances in which the Court feltjnstified, without evidence of the nature of the contract, to order an account of profits eiIuivalent to a specific performance.
This was a bill for an account of the profits of certain contracts entered into with the Barrack Department for the execution of works at Dover, Hytbe, and other places, in the vears 1804,5,6, and 7- The sums received I,y Baldock, the original defendant in the suit, for the contracts amounted to near 97,000/. Of the works for which this sum was received it was charged in the bill, that Mugs, the original plaintiff, had the entire superintendence, and that he actually executed one fourth. Moss and Baldock are both dead, and the executors of the former are suing the executors of the other to exhibit the contract between Moss and Baldock, by which it is alleged in the bill that Moss w&s to have one fourth of the profit on the Dover works, coutract price for all the others, a general per-centage for his trouble, and interest on the money received from the barrack department by Baldock, part of which was admitted to belong to Moss, but which was not paid over to Moss till some years afterwards.
Mr. Wakefield, Mr. Richards, and Mr. J. Bacon, for the plaintiffs, argued that the terms of the contract were sufficiently established by the answer of the defendants, and that a reference ought to be ordered to the Master to take an account and ascertain the balance due to the representatives of Moss, which they contended was many thousand pounds.
Mr. Jacob and Mr. Turner,on the otherside, denied that there was any contract, and contended that Moss was merely to charge tradesman's prices for materials and labour. That charge he had made, the sum had been paid, and, according to the account sent in, there was nothing now due.
The Lord Chancellor.—In this case a bill was filed for the equitable performance of an agreement, alleged to have been entered into between Moss and Baldock, for the division of the profits of a contract that Baldock held from the barrack department, to execute some expensive works at Dover and Hythe. Moss and Baldock are both dead, and the suit has been carried on by the executors,—those of Moss alleging that he was to have coutract price for the work done, and the executors of Baldock denying that, but admitting suck tradesman's prices as wou d afford him reasonable compensation for his trouble. The evidence in the cause afforded very little to guide the judgment of the Court on the nature of the contract or understanding between the parties; but there was enough admitted in the answer of the defendants to satisfy him that Moss was to have an adequate remuneration. A reference must therefore be ordered to the Master, to take an account, on the footing of the only account existing in the handwriting of Moss, which account carried up the transaction between the parties to a certain period.
If that account was followed up, his lordship had no doubt it would ultimately give Moss all that it was intended he should have at the time the agreement was entered into.
Muss v. Baldock.—Sittings at Lincoln's Inn, after Trinity Term, 1837.
Stnn'i 38cud) JDractirt Court.
NEGLECT TO ENTKU APPEARANCE.—PENALTY
UNDER 9 & 10W. 3, c. 25.
The plaintiff has no lunger any right to obtain judgment against a defendant for hi., fur his neglecting to enter an appearance; the statute under which it teas claimed, the 9 10 fT. 3, e. 25, s. 33, being repealed.
Tyndale had obtained a rule calling on the defendant to shew cause why judgment should not be awarded against him for a penalty of 5/., in accordance with the provisions of the 'Mi section of the 9 & 10 W. 3, c. 25, on the ground of his having neglected to enter an appearance to a writ of summons, which had been served on him in proper form. The title of the statute shewed it to be an act " for granting to his Majesty, his heirs and successors, further duties upon stamped vellum, parchment and paper;" and the section in question provided, that sixpence should be paid for every piece of vellum, parchment or paper, upon which any common bail should be filed in any Court whatsoever, and on which any appearance that should be made upon such bail should be engrossed or written, which appearance or common bail the defendant should cause to be entered or filed within eight days after the day upon which the process on which the defendant was arrested, should be returnable, upon penalty of 51. to be paid to the plaintiff, for which the Court should immediately award judgment, whereupon the plaintiff might take out execution. The process here, had been duly served, and the eight days had elapsed, and no appearance was found to be entered on search being made.
J. W. Smith now shewed cause, and urged that the words of the statute shewed that they were not applicable to this case. They provided, that the penalty should be imposed in the event of the defendant neglecting to enter an appearance or common bail, and marked the time for doing so at eight days alter the return of the process on which the arrest had taken place. Here, the defendant was never arrested on the process, for the action was commenced on a writ of summons. It was not possible, besides, to reckon from the return of the process, for the writ was never returned. The statute was penal, and unless the case fell within its very words, the Court would strain no point 10 give it a literal construction. The provision, however, on which 'he rule was founded, must be considered to he repealed by a subsequent statute. At the time of passing the act of William 3, there was a particular form of process at common law on which a defendant might be arrested in order to compel a common appearance, namely,
the capiat or latitat in actions where a debt was claimed not amounting to 10/. In Blackstone's Commentaries. Vol. 3, p. 287, it was said, " If the sheritf has found the defendant on any of the former writs, the capias, latitat, &c, he was anciently obliged to take him into custody, in order to produce him in Court upon the return, however small and minute the cause of action might be. For not having obeyed the original summons, be had shewn a contempt of the Court, and was no longer to be trusted at large." Although a man might be thus arrested for any small sum, however, he could not be forced to put in special bail for process. It was laid down in Gilbert's Practice of the Common Pleas, p. 35, that if the defendant should be arrested by mesne process, as capias, alias, or pluries, and the plaintiff held him not sufficient to pay the debt or damages contained in the writ, the same amountiug to 10/. or upwards, the plaintiff on the return of the writ, by entering a ne recipialur with the filacer out of whose office the capias issued, might have special bail to be put in to his action which the defendant must put in before some Judge of the Court where the cause depended, who should accept it as the validity or weight of the cause required, or in his discretion he should think fit. This rule was taken from the King's Bench, where formerly, they let the person out of custody on common bail, if it were under 20/., but if above that sum, they made him find special bail before he could be let loose from the custody of the marshal. Thus then the law existed when the statute 12 G. 1, c. 29, was passed, " to prevent frivolous and vexatious arrests." The first section of that act forbad any person being held to special bail upon any process issuing out of any Superior Court, where the cause of action should not amount to 10/. or more; and by the 51 G. 3, c. 124, s. 1, the same was increased to 15/., and by 7 & 8 G. 4, c. 71. to 20/. The power of arrest, and of holding to bail, therefore, became co-extensive. No mode then existed of arresting on mesne process, when the defendant was not to put in special bail, but was to appear by common bail, or on common appearance. The statute of the 9 & 10 W. 3, became a dead letter, and the authorities on practice from the 12 G. 1, all went to shew that it was repealed. There was not one case in the books in which it was called into operation since the passing of that act, although there were many previously. It was true that there was the case of IVhile v. Holland and another, 2 Strange. 737, which appeared to have been decided in H. T. 13 G. 1, and it would, therefore, apparently be a case after the passing of the act. The statute, however, did not come into operation until the 25th June, 1726, but Queen Anne having died on the morning of the 1st Aug. 1714, the reign of Geo. 1 commenced on tqat day, and the 12th year of his reign consequently ended on the last day of July, 1726. The application in H. T. 1727, in the 13 G. I, would most probably have been made in respect of some default in appearing to process issuing before the act
came into force, and that case could not be considered as an authority to shew that the act of William had ever been carried into operation since the passing of the 12 G. 1. The usage must be taken as evidence of what the law was. Mr. Tidd evidently thought the old law was repealed by 12 Geo. 1, c. 29, for in p. 240 of his practice, note e, he said " This is the same time as the defendant was allowed to file common bail on an arrest before statute 12 Geo. 1, c. 29, and if he did not file it within that time, he was liable to a penalty of 51., to be paid to the plaintiff. Stat. 9 & 10 W. 3, c. 25, s. 35." Thus speaking throughout in the past tense. The subsequent stamp acts, besides, although they re-enacted and increased the amount of the stamp on common bail, said nothing about the penalty. It must be presumed that the legislature intended to supersede the old mode of compelling an appearance by enabling the plaintiff to enter one himself. The provisions or the Uniformity of Process Act, besides, were inconsistent with the statute of William. Section 1 & 2 gave a new species of serviceable process, and directed that a new form of appearance should be adopted; but nothing was said about common appearance or common bail. The entry of an appearance now for the defendant, was under the provisions of that act. No words, it was true, were introduced expressly abolishing the former practice, but the provisions of the new statute must override those of the old one. It had been held that the 2 & 3 W. 4, c. 39, s 11, abolished imparlances, and so in the present case the old practice must be considered to be abolished by implication. The 5 Geo. 4, c. 41, mu9t also be taken to have repealed it, for in the third schedule attached to the statute, the stamp of 2s. 6rf. on " an appearance filed or entered in any action at law, wherein no bail should be filed or put in," was repealed.
Tyndale, in support of the rule, submitted that none of the authorities or statutes cited were inconsistent with the 9 & 10 W. 3. The case of Sharpe v. Warren, 6 Price 131, was analagous; in the marginal note, the following passage occurred, " An act of parliament giving a summary remedy to persons against defaulters, though in terms apparently prescribing such remedy is cumulative, and does not take away the previous right to sue by action at law." The 13 G. 1 only gave the plaintiff the additional advantage of entering at his option an appearance for the defendant, but did not in any way interfere with his right to enforce an appearance by the defendant through the medium of the penalty. The Uniformity of Process Act, it must be admitted, had introduced a new form of serviceable process, as well as an appearance, but the 9 & 10 W. 3, were equally applicable to an appearance under the new act. If two statutes, therefore, could subsist together, one could not be taken to repeal the other.
Cur. adv. vult. Coleridge, J. gave judgment.—The simple question raised on the argument was, whether the clause of the statute was repealed or not i
In the ordinary sense of the word, there was no doubt it had long since become obsolete; although fuund in a stamp act, the penal part of it appeared to have been introduced to aid plaintiffs in enforcing the appearance of defendants, rather than to protect the revenue. It appeared to have been acted upon up to the time when 12 Geo. 1, c. 29, came into operation, but from that time there was nothing to shew that recourse had been had to it, the provisions of that act apparently being taken as substituted for those of the former one; and if the new powers given to plaintiffs under the Uniformity of Process Act were considered, it certainly would appear unnecessary to maintain in existence the provisions of the old enactment. No statute had been mentioned in the argument, by which there was a positive repeal of the act of W. 3; but it was contended, that it was put out of operation impliedly bv the 12 Geo. 1, c. 29, and the 2 W. 4, c. 39. 'This mode of reasoning did nut quite satisfy the mind of the Court; the penal clause of the old act might well stand with the provisions of the new statute, and when that was the case, it was contrary to the rules of legal construction to hold that a statute by implication worked the repeal of a former one. The present rule, however, might be discharged on a safer ground. The penalty attached upon the neglect to enter an appearance within a certain time after the return day of the process; the appearance so to be entered was to be written on stamped vellum, parchment or paper; and so long as the same or any additional duty remained imposed on common appearances, it might be contended, that there was matter on which the clause would operate. By the repeal of stamp duties on legal proceedings by 5 G. 4, c. 41, it was impossible for the defendant to comply in terms with this enactment, and the plaintiff had no right in enforcement of a penal statute, to insist on a compliance with it. So for want of a subject-matter to act upon, the clause must be considered to be repealed, and the rule must be discharged, and with costs; the application being merely an experimental one to revive the operation of a statute which was always somewhat severe, and was now quite unnecessary for the advancement of justice.
Rule discharged with costs.—Thomas r Nokei, T. T. 1837. K. B. P. C.
SERVICE IN EJECTMENT.
In ejectment, where the tenants lock themselves in the premises and refuse to opes the doors, placing copirs of the declaration under the doors, and giving an explanation aloud outside, will be deemed sufficient service for the granting of a rule nisi for judgment against the casual ejector. Kelly moved for judgment against the casual ejector. The affidavit of service of process stated that the deponent had been unable to serve two of the defendants, who had locked themselves up on the premises, and had re