V. C. STUART'S COURT. ap sold, and relates first of all to the interest. I think I am bound to put a reasonable construction upon this memorandum as an abandonment of priority, and not to give it any larger scope and operation than the language of it naturally bears; and I cannot find that the postponement of the interest of the first mortgagee to the payment of the interest of the second, out of the accruing rates and dues, in any way justifies the application of that which should represent the whole corpus of the property, so as to bring it within the operation of the 20th section. The principal doubt that I have had throughout the argument of this case has been, how far I could deal with the rights of the plaintiff as modified by this memorandum in the absence of the Exchequer Loan Commissioners; but I think the case is relieved from that difficulty by the terms of the contract between the parties. It is plain that the Exchequer Loan Commissioners only conveyed to and vested in the present defendants, to whom they sold the whole of their right, and whom they put exactly in their position, that which they were entitled to under their security upon the construction of the Acts of Parliament, and upon the effect of this memorandum; and, in that view of the case, I cannot treat this railway company, who in the year 1843, by virtue of the powers of an Act of Parliament, purchased from the Exchequer Loan Commissioners, as having, by means of that purchase, acquired any better right against the plaintiff than the Exchequer Loan Commissioners. In fact, by purchasing, they put themselves in the place of the commissioners with reference to this property. Having notice of this memorandum, they must be taken as standing exactly in the same position with the Exchequer Loan Commissioners, who, if they were present as parties to this suit, would be absolved from all liability to the account of the subsequent rates and dues sought by the plaintiff. It was said indeed, on behalf of the defendants, that they carefully distinguished between the right of the plaintiff as against themselves, and her rights as against the Exchequer Loan Commissioners. Now, her right as against the Exchequer Loan Commissioners was simply the right of a first mortgagee, as qualified by a particular agreement for the plication of the rents and profits; and, if I find that the second mortgagee acquired priority as to the application of the rents to his interest, before the interest of the first mortgagee, and to his own principal before the principal of the first mortgagee-and if I find a sale and assignment under such circumstances, I must treat it in a way exactly the reverse of what is contended for here. I must hold that the Exchequer Loan Commissioners had the power to put the present defendants in their own stead as to their liability; and that the right under the security which these plaintiff's held is to be established now against the holder of the harbour and buildings, and the receiver of the rents and dues included in the plaintiff's security, which would have been directed against the loan commissioners if they had continued in their original position. Therefore I must declare that the plaintiff, by virtue of her security, and subject to the terms of the memorandum of the 15th April 1818, was entitled to a right against the defendants for an account of the harbour dues, and as an incumbrancer upon the harbour and buildings, is entitled to a priority over the defendants. I asked, in the course of the argument, whether the amount received since the year 1843, when the defendants became the purchasers and had the property assigned, was as much as would cover the claims of the plaintiff upon the footing of the decree that I propose to make; and it seems the amount received is nearly sufficient. It appears, in the course of this cause, that the defendants are not merely the purchasers from the commissioners, but that, besides their conveyance as purchasers, they took an assignment of the security; and therefore, as assignees of that security, they stand exactly in what I consider their proper situation with reference to the rights of the plaintiff, and the decree against them must be on that footing. If the amount of the harbour dues received by the defendants is more than enough to pay all that is due for interest in respect of the 10,000, which I understand it is, next comes the payment of what is due for the arrears of interest to the plaintiff; and after that the payment of the principal of the 10,000%; and after that the 1600/., which is the principal money of the plaintiff's security. That would relieve the case from any remedy against the harbour and buildings. As to the claim of the defendants to be allowed all the moneys they have laid out on the property for constructing a railway and other works on it, there is no case for sustaining such a claim. When I look at the way in which the property has been dealt with, and when I find that the harbour and buildings-as to which, in my opinion, the plaintiff has a clear priority -have been conveyed by the second incumbrancers to purchasers who wholly altered and converted the nature of the property; and when I find that the defendants claim interest on all their outlay for that purpose, and claim to be allowed in respect of that outlay everything that is due to them in respect of it before anything is paid to the plaintiff—I cannot recognise a claim on that footing at all. It is not within the principle of the cases cited at the bar, in V. C. STUART'S COURT. which it has been held, according to the ordinary course of the court, that a mortgagee in possession, laying out money for the improvement of the property, should be allowed for that outlay. That principle, according to the authorities, never extends to such an outlay as this, or to anything that relates to the conversion and alteration of the property; therefore I cannot recognise the right of the defendants in that respect at all. The principle of the decree which I make I have endeavoured to explain; and it would be a more satisfactory way, perhaps, in working it out, considering the amount of receipts, that the demand should be satisfied out of the produce of the harbour dues. With regard to the question on the Statute of Limitations, I do not think it has any application. I have not the least doubt as to this, and therefore I recognise the right to an interest on both sides. I give the defendants the same right. The first decla ration will be, that the harbour and buildings were not included in the operation of the memorandum (as to which the plaintiff has never lost her priority), but only the dues. Then declare that the rates, dues, and duties in respect of the harbour are applicable, first in payment of the interest due to the defendants as assignees of the security of the Exchequer Loan Commissioners; that in the second place those rates, dues, and duties are to be applied towards payment of the principal money due to the defendants as assignees of the Exchequer Loan Commissioners; and, lastly, in payment of the 16004, the principal money due to the plaintiff'; and with those declarations there will be an account on that footing. Monday, March 20. TOMKINS V. LANE. Practice. Form of order for payment of a sum of cash standing in the name of the Accountant-General to the credit of a cause, the account of a convict, to such person as her Majesty should by sign manual appoint. Testator by his will, dated the 8th March 1832, gave and devised, subject to the payment of his just debts, funeral and testamentary expenses, unto Edward Lane, defendant in the cause, 500., and all other his money and property, of whatever nature or kind soever, upon trust to pay to Mary Tomkins half-yearly the interest arising from the said 5007. during her life, and, after her death, to make an equal division of the said 5001., and of all other his money and property, between all and each of the children of his daughter the said Mary Tomkins, namely, her son William, her son James, her son Joseph, her son George, her son Henry, and her daughter Sarah (being Sarah Burtt, the present petitioner), and also Jane Deane, the natural daughter of the said Mary Tomkins, share and share alike; and if either of the children should be married, and die before their mother, and leave any child or children, in that case their issue should receive the father or mother's part, share and share alike. Testator died on the 19th Nov. 1832, and his will was duly proved by the defendant Edward Lane on the 22nd Aug. 1833. Mary Tomkins had no other child than those mentioned in the will; and she died on the 3rd Nov. 1850. All the residuary legatees mentioned in the will were living in March 1852, except George Tomkins and William Tomkins. Henry Tomkins was on the 5th Sept. 1834 indicted for felony, and was convicted and sentenced to be transported. The petitioner Joseph Tomkins was also, on the 19th Sept. 1836, indicted for felony, and was convicted and sentenced to seven years' transportation. Henry and Joseph Tomkins were both out of the jurisdiction of the court. The Master, by his report in the cause, dated the 5th March 1852, found the above facts, and also that a sum of 4877. 8s. was the balance then due from the defendant Edward Lane. By an order on further directions in the cause, dated March 25, 1852, the said sum of 4871. 88. was directed (after payment of costs) to be divided into seven equal parts or shares, and that the defendant Edward Lane should pay one-seventh part or share into the Bank with the privity, &c., to be placed to the credit of the cause, to an account to be entitled "The share of the testator's grandson, Joseph Tomkins, a convict," subject to the further order of this court. And it was ordered that the same, when so carried over, should not be paid out or otherwise disposed of without notice to the solicitor of the Treasury. And it was ordered that one other seventh part or share should be paid into the Bank, &c., to the credit of the cause to an account to be entitled, "The share of the testator's grandson, Henry Tomkins, a convict," subject as above; and the same was not to be paid out without notice to the solicitor of the Treasury, as above. The moneys were paid into the Bank accordingly, and the present petition was brought by James Burtt and Sarah his wife, and also by Joseph Tomkins, stating that the petitioner, Joseph Tomkins, was now in good employment in New South Wales, and was desirous that his share (on the assumption that he could dispose of it) should be paid to his sister Sarah Burtt; also that James Burtt and Sarah his wife were advised that the shares of Joseph Tomkins and Henry V. c. WOOD'S COURT. Tomkins, the latter of whom had not been heard of for many years, and was supposed to be dead, were forfeited to the Crown, and that the solicitor to the Treasury had informed petitioner's solicitors that if so forfeited the fund would probably be paid to the family of the convict. The petition then prayed that the sum of 441. 0s. 4d. cash, standing in the name of the Accountant-General, &c. the share of Joseph Tomkins, and a like sum, the share of Henry Tomkins, might be paid to H. R. Reynolds, Esq., one of the solicitors of H. M. Treasury, to be applied and disposed of as her Majesty should think fit. Waley, in support of the petition. Wickens, for the Attorney-General, said, that all he had to suggest was, that the form of the order should be, to such person or persons as her Majesty should by sign manual appoint. The VICE-CHANCELLOR, varying the order of the petition, made an order for taxation and payment of costs, and payment of the funds to the parties named by sign manual in the usual form. Solicitors, Amory, Travers, and Smith. V. C. WOOD'S COURT. Power of appointment-Execation. Where a party has a power of appointment" by any 66 hand deed or deeds, writing or writings," under his and seal," it is not a good execution of the power, if the donee makes his will pursuant to the requisition of the 10th section of the Wills Act, 7 Will. 4 and 1 Vict. c. 60. This was a special case stated for the opinion of the court upon the effect of a will made by a party who had a power of appointment under a settlement. The facts were that certain leasehold hereditaments were assigned to trustees by way of settlement, one of the trusts of which settlement was that the trustees should hold the premises upon trust for such persons and for such purposes as the testator should by any deed or deeds, writing or writings under his hand and seal, direct or appoint. The settlor did not make any appointment professing to be an exercise of the power by which he made his will, executed in all respects pursuant to the requirements of the 10th section of the new Wills Act, 7 Will. 4 & 1 Viet. c. 60, but he declared various trusts of the property at variance with the trusts declared by the original settlement. Doubts were entertained on the occasion of some subsequent dealings with the property. After the death of the settior a special case was agreed to be submitted to the court for its opinion; the dispute being whether the property was still subject to the trusts of the settlement, or whether it was subject to those of the will; the question stated being whether the will was a valid execution of the power. For the answer in the affirmative the case of Buckell v. Blenkorn, 5 Hare, 131, was relied on, where the late V. C. Wigram had decided that such a will was a good execution of a power in similar terms; and the case of Collard v. Sampson, 21 L. T. Rep. 41, before the M. R., who followed, in a case of specific performance, that of Buckell v. Blenkorn, although his Honour said he did so with reluctance, and added that if the last-mentioned case had been before him he should not have so decided. It was admitted, however, that Collard v. Sampson had been overruled by the Lords Justices (21 L. T. Rep. 234), their Lordships holding that the title depending on such a question was not one which the court would compel a purchaser to take. For the negative proposition the overruling of the Court of Appeal of the case of Collard v. Sampson was relied upon. The following authorities and cases were also cited during the argument:-Kibbet v. Lee, Litt. Rep. 218; S. C. Hob. 312; Dormer v. Thurland, 2 P. Wms. 506; Roscommon v. Fowke, 4 Bro. C. C. 533. The VICE-CHANCELLOR.-I am called upon to consider the decision of Wigram, V. C. in Buckell v. Blenkorn, in consequence of this matter having been brought first before the M. R., and then before the Lords Justices, in the case of Collard v. Sampson, as to enforcing a contract for specific performance. The case is evidently open to the court for decision either way, and I must look at the question as if I were not guided by the decision of V. C. Wigram, further than is due to the weight generally to be attributed to the opinion of that learned judge. In the present case, the settlement reserved a power of appointment during the life of the settlor to himself as he should, by any deed or writing under his hand and seal, direct and appoint; and the settlor has made the appointment by his will, not under seal. V. C. Wigram held that, inasmuch as decisions prior to the Wills Act had determined that a power to be executed by " a writing," with certain prescribed solemnities, would be executed by a will with similar solemnities, it would now fall within section 10 of the statute, which directs that a will, executed in the prescribed form, should be a valid execution of a power of appointment by will, "notwithstanding it shall have been expressly required that a will, made in exercise of such power, V. C. WOOD'S COURT. should be executed with additional or other form of "writing" an instrument which by law will be but it has not done so. their own intentions, by using such words as are in this instrument, instead of simply stating that the power shall be exercised by "deed or will," which would obviate all difficulty. The Legislature has provided for the simple case of a will, but not for a case like the present. The line is extremely fine; for, if the settlor had said, "by writing, testamentary or otherwise," the appointment might be held to be a valid one; but in the present case the limitation was not brought within the operation of the statute, and the question must be answered in the negative. Friday, March 3. SMITH. THE LONDON AND SOUTH-WESTERN RAILWAY COMPANY. Patent-Infringement-Delay-Injunction. A patent was granted, and, it having been infringed, the patentees did not complain until three years after the patent had expired, although they were proved to have been cognisant of the infringement during the whole term of the patent. The patentees filed their bill for an injunction; but the latter was refused, and the bill was dismissed with costs. The bill in this case was filed by Messrs. Henry Smith and Thomas Willey, the assignees under a deed of assignment, dated 14th Aug. 1845, of the patent granted in 1835 to Mr. John Day, of an improvement in the manufacture of carriage-wheels, for a term of fourteen years. The specification of the patent described the improvement to consist of the centre, boss, or nave of the wheel, and also the arms and rim, being composed of wrought or malleable iron welded into one solid mass; this, according to the evidence, effecting great strength and lightness, and effecting, when used for railway purposes, a saving of 8001 and upwards upon each engine on the average period of an engine being in use. In 1845, the bill stated and the affidavits proved, the plaintiffs became aware that the wheels were being used to engines by several railway companies; but they took no active steps to stop the infringement of their rights until 1852, when they commenced an action against the London and North-Western Railway Company, which patent, it is difficult to see how any jurisdiction can attach after the expiration of the patent. In Crosley v. Beverley there were special grounds; the defendants had these fraudulently manufactured articles, keeping this secret from the plaintiff, with the intention of pouring them out upon the market after the patent had expired. It is quite possible that a case may occur where there was a fraudulent attempt to evade the patent, such as to enable the court to restrain the defendant from infringing the patent; and when the right to an injunction has been obtained, the right to an account follows. In this case a knowledge that these wheels were being used during the whole term of the patent is clearly brought home to the plaintiffs, who have not given any notice to the other side, and have not filed their bill till three years after the expiration of the patent. They proceeded to bring an action against the North-Western Company, but gave no hint of improper conduct as against this company, nor was it till nearly nine years after the infringement of the patent that any steps were taken, nor was there any attempt to restrain them by injunction during all that time. I apprehend that such delay after knowledge of the circumstances will be sufficient to justify the court in refusing to interfere by injunction. The right to an account is entirely ancillary to the injunction. Under these circumstances the bill must be dismissed, and with costs. Thursday, March 16. was tried at Liverpool at the spring assizes of 1853, and a verdict was returned with 12507. damages for the infringement of the patent. That company moved for a new trial; but the same was refused, and the judge gave his certificate that the validity of the patent had been brought in question in the action. Although, as stated above, no active steps were taken before 1852 against the London and North-Western Railway Company, a long correspondence had taken place between the patentees and that company, with a view to an arrangement for payment of compensation for the former user, and rents or royalties for the future right to employ such wheels, but the same was abortive. The plaintiffs' bill and evidence also showed, that the plaintiffs discovered that the London and SouthWestern Railway Company were using wheels in infringement of the patent ever since the year 1845, and that two of their engines (among others), viz. the "Plutus," and "Saturn," made respectively in 1847 and 1848, and which had been in constant use on the line ever since, were furnished with wheels made upon the principle of Mr. Day's invention or improvement. It was also proved that the defendants had issued advertisements for tenders from manufacturers of wheels made upon this principle. The bill alleged that, upon this fact coming to the knowledge of the plaintiffs, they had applied to the defendants in April 1853 for an account of the wheels manufactured or used by them prior to the expiration of the patent, which (being for a term of fourteen years from 1835) expired in 1849, with a view to some arrangement being come to for a payment Administration — Injunction — Colonial jurisdictionin compensation for the user of the invention. 6 & 7 Vict. c. 94. A negotiation for this purpose having failed, Where the assets of an intestate dying out of her the plaintiffs, on the 30th of June 1853, filed the Majesty's dominions are realised, or are about to be present bill, which prayed an account of all the realised in this country, under the alleged authority of wheels made on the principle of Day's invention in an English judicial assessor appointed abroad, equity breach of the patent, and used by the defendants will interfere by injunction and by appointing a rebetween the 15th Aug. 1845 and the 14th Aug. 1849; ceiver, at the instance of the English administrator, until an account of all wheels made on that principle, sold the hearing, and in the interval will direct inquiries or disposed of by the defendants, and the profits as to the foreign jurisdiction at the Foreign-office, made by such sale or disposition; an account of all pursuant to section 2 of the 6 & 7 Vict. c. 94. the profits arising from the use of such wheels from Roit and Cairns moved for an injunction to restrain the 15th Aug. 1845 to the time of the filing of the the defendant, James Coleman Fitzpatrick, and others, bill; and an injunction to restrain the defendants from receiving or demanding from Matthew Forster from using and also from selling any wheels which and John Forster, the other defendants, and that they were made on the principle of the patent during the might be restrained from paying to Fitzpatrick, the period of fourteen years for which the patent had proceeds of certain palm oil, gum, and gold, conbeen granted. Mr. Thomas Willey, one of the plain-signed to Messrs. Forster and Smith by certain vessels, tiffs, was the representative of Mr. Willey, to whom in respect of the estate of Mr. James Hervey, or any the assignment of the 14th Aug. 1845 was made. such part of the proceeds. The case made in support On behalf of the plaintiffs, in support of the motion of the motion was, that James Hervey, the son for the injunction, it was argued that, notwithstanding of the plaintiff, died at the British settlement of the expiration of the patent, they were entitled to the Cape Coast Castle, on the Gold Coast of Africa, account; that courts of equity, in such cases, did not in April 1853, intestate, and having, at the time necessarily confine granting an account to cases in of his death, a domicile in that settlement. The which an injunction could be granted; but, even if plaintiff's son at his decease had considerable property such were the case, they were entitled to this injunc- there. In Dec. 1853, the plaintiff took out letters of tion to restrain the continued user of articles pur- administration to his son from the Prerogative Court chased during the continuance of the patent; that the of Canterbury, and he claimed as sole next of kin delay which had taken place was accounted for by the and administrator to be entitled to his property in the fact of the plaintiffs not wishing to commence a inul- settlement. Mr. Fitzpatrick was at the time of the tiplicity of actions at once, but being desirous of death of Hervey resident in the settlement of Cape awaiting the result of the action against the North Coast Castle, where he was judicial assessor. He Western Railway Company. took possession of Hervey's estate, and it was alleged that he had invested a portion of it in mercantile speculations. It was stated that the defendant Fitzpatrick claimed the right of taking possession of the estate of the deceased by authority of an ordinance in the 10th year of her Majesty's reign, to provide for the protection and administration of unrepresented estates in the colony of Sierra Leone, and that he acted as receiver of unrepresented estates accordingly in this particular case. The plaintiff, however, denied that he was qualified to act under this authority; and insisted that if he was, he had violated the terms of that ordinance in many respects, and the plaintiff denied that this ordinance had been James and Selwyn, for the plaintiffs. in force in the settlement. The plaintiff had sent out Daniel and Baggallay, for the defendants. a power of attorney to Mr. Brodie Cruickshank to get The VICE-CHANCELLOR.-This case is sufficiently in the intestate's estate. It was stated that Messrs. clear on the ground of delay alone; had the case Forster and Smith claimed to be creditors of the rested solely on the expiration of the patent a few deceased for 55001. The amount of oil consigned by days or weeks prior to the complaint, there may have the Thomas Snook was 10,069 gallons. The con been some difficulty. The true ground of relief given signees, having heard of the rival claims of the by this court is laid down by Sir John Leach in Baily plaintiff and Mr. Fitzpatrick, had addressed tad v. Taylor, 1 Russ. & Myl. 73, where he uses this ex- Secretary for the Colonies on the subject. They had pression: "The court has no jurisdiction to give to sold the oil and had the proceeds in their hands at the plaintiff a remedy for an alleged piracy, unless he this time. In Aug. 1853, 17,809 gallons of palm o can make out that he is entitled to the equitable in- were consigned by Mr. Fizpatrick to Forster and terposition of this court by injunction; and in such Smith, and requested the proceeds to be placed to the case the court will also give him an account, that his credit of the late Mr. Hervey's estate. remedy here may be complete." The account given alleged that Mr. Fitzpatrick had lately come to Eng is not rested on any fiduciary principles; it is simply land, and had brought with him, as part of the intes that which this court gives as its own mode of esti- tate's estate, a further quantity of palm oil, and also mating damages when, having found it necessary to gold and gum. In reply to an application from the interfere primarily by injunction, and thus having plaintiff's solicitor for an account, Mr. Fitzpatrick had acquired jurisdiction over the case, it gives complete referred the parties to the Judicial Assessor's Court, relief to the parties; unless that primary right exist, at Cape Coast Castle. The plaintiff's counsel drew the court has no means of reaching the defendant and the attention of the court to the clause in the 6 & 7 making him pay damages. When the patent has exViet. c. 94 ("An Act to remove doubts as to the pired, the court is thrown back to consider the object exercise of power and jurisdiction by her Majesty of equity in interfering by injunction; and this, as within divers countries and places out of her Majesty's stated on the authorities, is to prevent a multiplicity of actions arising on every fresh infringement of the which provides that, if in any suit or other proceedpatent. But, unless a case were established to pre-ings, whether civil or criminal, in any court ecclevent the user of the article 1 he existence of thesiastical or temporal, within her Majesty's dominions, For the defendants it was contended that this was the first attempt to file a bill after the expiration of a patent; and, after the delay which had taken place. the court would not grant any relief: the defendants had purchased the engines and used them openly for many years, and the plaintiffs had had every opportunity of instituting proceedings long since. The following cases in support of the bill were cited:-Whitfield v. Blewit, 2 P. Wms. 240; Crosley v. Beverley, 1 Russ. 166, n.; Crosley v. The Derby Gas Company, 3 Myl. & Cr. 428; Bacon v. Jones, 4 Ib. 433 Parritt v. Palmer, 3 Myl. & Keen, 632; Caldwell v. Van Vlissengen, 9 Hare, 415. The bill V. c. WOOD'S COURT. any issue or question of law or of fact shall arise, for the due determination whereof it shall, in the opinion of the judge or judges of such court, be necessary to produce evidence of the existence of any such power or jurisdiction aforesaid or of the extent thereof, it shall be lawful for the judge or judges of any such court, and he or they is and are hereby authorised, to transmit under his or their hand and seal or hands and seals, to one of her Majesty's principal Secretaries of State, questions by him or them properly framed respecting such of the matters aforesaid as it may be necessary to ascertain, in order to the due determination of any such issue or question as aforesaid; and such Secretary of State is hereby empowered and required, within a reasonable time in that behalf, to cause proper and sufficient answers to be returned to all such questions, and to be directed to the said judge or judges, or their successors; and such answers shall, upon production thereof, be final and conclusive evidence, in such suit or other proceedings, of the several matters therein contained and required to be ascertained thereby." They submitted that the court would ascertain the existence of the power and the jurisdiction of that foreign country, and the extent thereof, and in the mean time would grant an injunction and appoint a receiver. It seemed very unlikely that a party filling the office of a judicial assessor could have the right to intermeddle with the property of an intestate, adversely to the right of an English administrator of that intestate. Daniel, Q.C., and Jessell, for the defendant.-The first question for the court was in the nature of a demurrer to the jurisdiction. The legal right to sue was not necessarily coincident with the right of administrator. The defendants alone had the legal right to recover the proceeds: (Tyler v. Bell, 2 M. & C. 89.) The only jurisdiction in this case was before the Judicial Committee of the Privy Council, Mr. Fitzpatrick's office being held under letters pa tent, and he was assessor to the native chiefs or princes in a foreign country. This was not a case of assets or bona notabilia; the property was acquired by virtue of a jurisdiction given over property belonging to subjects of the Crown in a foreign country, and Mr. Fitzpatrick had only acted in discharge of his duty. The deceased was at his decease domiciled in the territory of a foreign prince. The VICE-CHANCELLOR observed that the questions raised by the motion were of considerable importance. As to the first point-namely, whether, assuming this gentleman, Mr. Fitzpatrick, to fill the office claimed and he did not for a moment mean to be understood as intimating that he had not acted strictly according to what he believed to be his duty-this court could now interfere in the way proposed: Although he might have the authority of the personal representative of the intestate, this left untouched the question as to the ultimate disposition of the assets in England. It might be that Mr. Fitzpatrick, as judicial assessor, might be, not merely personal representative, but also the authority to decide this question. At present, however, the court could only regard him as personal representative. He might suppose that there was some court appointed under the Act to decide in that country questions relating to the administration of assets. This would put the case, by way of analogy, on the footing of an Indian administration. The question was whether, when property of an intestate abroad had been remitted to England, with directions to the agent here to carry the proceeds to the account of the intestate's estate, and there was an administrator here, such administrator, being also sole next of kin, was not entitled to sue the Indian representative and move the court to protect the property until the question was ultimately decided. He thought this question must be answered in the affirmative. No averment had been made of any purpose for which administration abroad was necessary. This made the case a strong one. Neither was it questioned that the property belonged to the intestate. The argument that there was some other court deriving authority from the Crown, in which he would be liable, was met by the fact that the decree of this court would be ample protection. Whatever was the result of any inquiry he might make, he must hold that this court had jurisdiction over the assets when here. What the defendant insisted on was the right to take the assets to Sierra Leone, and withdraw them altogether from the jurisdiction of the court, and he would have full power of doing so unless they were protected in the mean time by the appointment of a receiver. A case was made out-even assuming him to be the representative-for saying that there ought to be a receiver until the hearing of the case. Inquiries at the Foreign-office would be more properly reserved until the hearing of the cause, but he felt no difficulty in propounding those inquiries now, if the parties desired them; and they would be these, whether her Majesty had at any time exercised any jurisdiction with respect to the administration of personal estate of persons dying intestate at Cape Coast Town-and if so, in what manner, and what had been the extent of the jurisdiction so exercised, and through what court or officer? He thought the onus probandi of showing that he was within the Act lay upon the defendant. He was asserting something which depended upon a particular statute. He BANKRUPTCY. confessed, upon this answer given at the bar, it was exceedingly questionable whether the custom, as alleged, had gone beyond the appointment of some person to take immediate possession. He would grant the injunction, and the question as to a receiver might be discussed at chambers. Some discussion ensued as to whether the intestate had died at Cape Coast Town or Cape Coast Castle. His HONOUR said, when the fact was ascertained, he would send the questions. Lavie, Olivers, and Co., solicitors for the plaintiff. BANKRUPTCY. BRISTOL. Reported by J. C. WHITEFIELD, Esq., Solicitor of the Court. (Before Mr. Commissioner STEPHEN.) Re WILLIAM WILLIAMS and SONS. Power of attorney to vote in choice of assignees-Once executed cannot be again used at subsequent choice. At the first choice of assignees a great number of porcers of attorney from creditors to vote in the choice, for which there was a strong contest, had been presented and acted upon. The assignees then chosen were subsequently removed by the commissioner, and a second choice was about to take place, at which it was attempted to use those powers again by the attorneys named in them; and they claimed to vote under the powers at such second choice: Held, they were not entitled to do so; and that the powers extended only to one occasion, and that, having been once acted on, they were spent, and not available for any subsequent service. This was a meeting for the choice of new assignees, those previously chosen having been removed by the solicitors who were connected by relationship with the Commissioner, in consequence of the appointment of bankrupts, which the Commissioner considered objectionable, and it was so held by the Lords Justices on appeal. At the first choice of assignees there was a strong contest, and a great number of powers of attorney were put in and acted on by the contending attorneys for the choice: (see form of power (a) below.) A second choice was duly advertised, but new powers from all the creditors whose votes had been recorded on the insisted that the old powers, already on the file, were first occasion had not been procured; and it was now capable of being re-exercised; and the attorneys named in them claimed to vote, and represent the creditors at this second choice, as if the documents had not been used at all, submitting that the words of the powers, authorising the attorneys to vote adjournment or other meeting for the choice of nees," were amply sufficient for this purpose. For (Newport), in support of the powers. at any PREROGATIVE COURT. adjournment from the original day for choice; but, even supposing the contrary, and that they are in themselves capable of being applied to any meeting whatever subsequent to that originally fixed for choice, I am still of the opinion before expressed, that the power was to be exercised on one occasion only, and that, having been already exercised, it cannot be exercised again; and that consequently no aid can now be derived from the words "or other meeting," even though supposed sufficient in themselves to extend to any meeting whatever. I may add, however, that, even supposing the power to be meant to extend to more occasions than one, and to be capable of being twice exercised, I cannot think it would extend to an occasion like the present, arising as it does under very special and peculiar circumstances, and in consequence of the removal of the assignees who had been originally appointed; for the creditor cannot be supposed to have had such special granted the power, nor, consequently, to have incircumstances as these in contemplation when he tended it to operate under such circumstances. Upon the whole, then, I decide that the powers in question afford no authority for the votes of the attorneys therein respectively named on the present occasion, and that their votes under these powers Powers rejected. cannot be received. MANCHESTER. Where a bankrupt is a prisoner, the Court will order that he be brought up by warrant, directed to the person in whose custody he is; the costs to be paid by the trade assignee, to be repaid to him out of the estate. The facts sufficiently appear in the following judg ment: Mr. Commissioner SKIRROW.-A petition is presented in this matter by the bankrupt, who is in prison for debt, praying that he may be brought before the court on the 17th day of the present month, in order to surrender and pass his last examination in the manner set forth in the 112th section of the Bankrupt Law Consolidation Act. The 6 Geo. 4, c. 16, s. 119, provides that the bankrupt, if in prison, and desirous to surrender, shall be brought up by an order of the Commissioner, and the expense thereof shall be paid out of his estate. Soon after the passing of the 6 Geo. 4, a cause came before Lord Eldon, Re Emery, Buck. 527, in which Lord Eldon directed the bankrupt to be brought assig-up and the costs to be paid by the assignees, although they had, as in this case, no assets to pay such costs. The 112th section of the Bankrupt Law Consolidation Act adopts the words of the 119th section of the 6 Geo. 4, c. 16. Therefore Lord Eldon's decision applies to the present case, although the 6 Geo. 4 has been repealed by the Bankrupt Law Consolidation Act. The petition alleges that the bankrupt is in a state of destitution. It is not stated that he is in prison for any debt contracted in the manner set forth in the latter part of the 112th section of the Bankrupt Law Consolidation Act. It being stated to me by the solicitor to the trade assignee, and which statement was confirmed by Mr. Pott, the official assignee, that there were no assets belonging to the bankrupt's estate, I do therefore order that the bankrupt be brought up by warrant directed to the person in whose custody he is confined, in order that he may surrender on the 17th of this present month, and that the assignee pay the costs of his so being brought up, to be taxed by the proper officer; the said costs to be repaid to the trade assignee out of any assets of the said bankrupt's estate that may be realised. Mr. Commissioner STEPHEN.-My decision is now called for upon the claim that has been made by certain parties to vote under powers of attorney used at the former choice. In none of these cases does the instrument contain words purporting to authorise the attorneys to act from time to time; and therefore, whether the power be considered in reference to its wording or its presumable intention, I am of opinion that it was intended only to autho rise the attorneys to vote on one occasion, though such occasion might be adjourned. Now, in fact, the attorneys under each of these powers have acted under that power on one occasion, viz., at the choice, and on the day originally advertised for the choice; and the power is accordingly placed on the file as a power so acted upon. It is therefore, in my opinion, a power that is spent-that has performed its dutyand that cannot avail for any subsequent service. apprehend the words "or other meeting," upon which much reliance has been placed, are a mere amplification of the word" adjournment," and do not point to any meeting except such as may be held by above decision was given :(a) The following is the form of power upon which the Know all men by these presents that creditor of William Williams, William Williams the younger, and Thomas Robert Williams, of Newport, in the county of Monmouth, bankers, millers, dealers, chapmen, and copartners, the persons against whom a petition for adjudication of bankruptcy hath been filed and is now in prosecution, have made, ordained, constituted, and appointed, and by these presents do make, ordain, constitute, and appoint and my true and lawful attorneys, and true and lawful attorney, for me, and in my name, place, and stead, to appear before the commissioner acting under the said petition, at the time appointed in the London Gazette, or at any adjourn ment, OR OTHER MEETING, for the choice of assignees of the estate and effects of the said bankrupts, and then and there, for and in my name, to vote in the choice of one or more assignee or assignees of the said bankrupts' estate and effects; and also, in case that I shall happen to be chosen assignee under the said petition against the said bankrupts, then as my said attorney or attorneys, and for me, and in my name, to accept the said trust; and further to act, do, and perform all and whatsoever shall be needful and requisite to be done in, about, or concerning the premises. And I do hereby ratify, confirm, and allow all and whatsoever my said attorney or attorneys shall lawfully do or cause to be done for me by virtue of these presents, and of the power and authority hereby to him or them by me given. In witness whereof I have hereunto set my hand and seal this day of in the year of our Lord PREROGATIVE COURT. In the goods of D. DOWNER. A. B., having made his will, became insane, and whilst in that state destroyed it. He recovered his reason, and directed another will to be prepared. Before Probate was that was done he destroyed himself. granted of the unexecuted draft of the destroyed will. In the month of October 1850 the deceased duly executed a will. In the following year he began to show symptoms of derangement. These gradually increased, until his relations and friends came to the conclusion that he was decidedly insane. In October in the same year, when in paroxysm of madness, he rushed from the room in which he was sitting with his wife, fetched the will from a box in which it had been deposited, and attempted to destroy it by putting it on the fire. His wife, however, prevented in burning it, by thrusting it into the fire with the him. In the following week, however, he succeeded poker. In the course of the following month the de CIRCUIT REPORTS. ceased appeared in some degree to have recovered his reason, and frequently expressed regret at having attempted to destroy his will; and, in the month of March 1853, he called on his brother-in-law, and asked him whether he would get another will drawn up for him, the same as the last. Whereupon his brother-in-law asked him what he had done with his will; to which the deceased replied, "That time I was mad I burnt it," and expressed his regret at having done so. His brother-in-law then promised him that, when he went to London, he would get another will prepared for him, to the exact effect and purport of the one he had destroyed. Shortly after, however, and before such will was prepared, the brother-in-law of the deceased became satisfied that he was again relapsing into a state of insanity. The deceased had always refused to see any medical attendant. His wife, however, when he was very much excited, called in a surgeon, who prescribed for him; but, on the same day, the 9th April 1853, the deceased left his home, and did not return until the following day, when, after remaining at home for a short time, he again left it, and drowned himself. A coroner's jury returned a verdict that the deceased destroyed himself whilst labouring under insanity. Affidavits were brought in verifying these facts; also an affidavit of the solicitor, with the original instructions and the original draft of the will annexed, which showed that such draft was a fac simile of the will of the deceased, which he had executed and then destroyed. Bayford moved for probate of the draft of the will, as containing the substance, terms, and purport of the will itself. Sir JOHN DODSON.-From the affidavits made in this case there can be no doubt that the deceased was of unsound mind at the time he destroyed his will; he could not therefore have entertained any animus revocandi in a legal sense; and the instrument therefore, if its contents can be shown, will operate. It is proved that this draft is a fac simile of the will. The executors are therefore entitled to probate of it. Circuit Reports. Reported by J. E. DAVIS, Esq. Barrister-at-Law. OXFORD CIRCUIT. Unlawful apprehension-Power of railway servants to The prisoner was charged in the first count of the indictment with assaulting John Smith, with intent to prevent his lawful apprehension; in the second count, with an assault with intent to do grievous bodily harm; and in the third count, with intent to disable. It appeared that the prisoner got into an empty third-class carriage, attached to a first and secondclass train proceeding from Manchester to Stokeupon-Trent. On reaching North-road station, he got out on the wrong side, and was accosted by the guard, who asked him for his ticket. The prisoner replied, "Ticket be d-d; I have no ticket;" and said he had intended to get out at the station for Crewe junction. No other demand was made on the prisoner; but the guard ordered him to get into a secondclass carriage, and locked the doors. The train then proceeded to Stoke, a distance of several miles. The prisoner, on getting out, was asked for his ticket; and on his not producing that, the second-class fare from Manchester to Stoke was demanded. It not being paid, the policeman at the station collared the prisoner, who gave him a blow and and got away. He was pursued and retaken, when the prisoner pulled out his knife and cut the policeman on the back of his hand. The reason alleged for bringing the prisoner on to Stoke was that it was the head-quarters of the railway authorities, and there was no mode of dealing with the prisoner at North-road station. WIGHTMAN, J., to the jury.-The prisoner gets into the train at Manchester; he gets out at Northroad station, and his ticket is demanded, and not produced. On the contrary, the prisoner says he has not got it. The guard, instead of then taking him on the specific charge of going so far without his ticket, which perhaps he might have done, takes him in a second-class carriage to Stoke, several miles out of the way. A ticket from Manchester to Stoke is there demanded, and afterwards the full fare. It seems to me that this is clearly beyond the law, and that the railway authorities had no right to demand the fare from North-road to Stoke. I do not give any opinion IRISH. as to the right to convey a person refusing to produce his ticket at one station on to another, on the charge of not paying his fare for that specific part of the journey which the prisoner had voluntarily and fraudulently performed; but, whatever might have been the situation of the parties, if, on demand and refusal of the ticket or fare at North-road, the charge was there made, and he had been conveyed to Stoke for the purpose of dealing with it, here the arrest was for nonpayment of the fare to Stoke. The apprehension was, therefore, illegal, and the prisoner had a right to resist it. The only question is whether he did more than was reasonably necessary to effect his release from arrest. He does not appear to have had any other intent when he did the act charged than to get away. Verdict, guilty, on the ground that some excess of violence was used by the prisoner; and he was thereupon sentenced to a short term of imprison ment. Scotland, for the prosecution. Kenealey, for the prisoner, Thursday, March 16. An attempt to commit suicide is a misdemeanor at common law. The question for the jury is, whether the prisoner had a mind capable of contemplating the act charged, and whether he did, in fact, intend to take away his life. The mere fact of drunkenness in this, as in other cases, is no excuse for the crime; but it is a material fact for the jury to consider, before coming to the conclusion that the prisoner really intended to destroy his life. The prisoner was indicted for unlawfully attempting to commit suicide at Wolverhampton on the 5th March 1854. It appeared that the prisoner was at the George Inn, Wolverhampton, on the night of the 5th March, and about ten o'clock went to the water-closet. He was soon afterwards found there, suspended to a beam by a scarf tied round his neck. He was cut down and animation restored. On being taken into custody and charged with the offence, he stated that he had led a bad course of life, and had no money or friends. He now said in his defence that he had been drinking for nine days before, and did not know what he was doing. There was some evidence to show that, although he was partially intoxicated, he was quite capable of taking care of himself. WIGHTMAN, J. told the jury that the offence charged constituted, beyond all doubt, a misdemeanor at common law. The question for them to consider was whether the prisoner had a mind capable of contemplating the act charged, and whether he did, in fact, intend to take away his life. The prisoner alleged in his defence that he was drunk at the time, which must be taken to mean that he had no deliberate intention to destroy his life; for the mere fact of drunkenness in this, as in other cases, is not of itself an excuse for the crime, but it is a material fact in order to arrive at the conclusion whether or no the prisoner really intended to destroy his life. Verdict guilty. Sentence three months' imprisonment. Erish Reports. QUEEN'S BENCH. (Reported by P. J. M'KENNA, Esq., Barrister-at-Law.) Tuesday, Jan. 31. (Before LEFROY, C.J., CRAMPTON and MOORE, JJ.) CARMICHAEL v. CASSAN. Enlarging time for going to trial, pursuant to undertaking When granted - Death of attorney for plaintiff Where the attorney for the plaintiff dies after an undertaking had been given to go to trial at the sittings after the ensuing term, and his son swears that he has searched for the promissory notes in suit in the papers of the deceased, and that from their great number he was unable to find these notes: the Court will enlarge the time for going to trial pursuant to an undertaking given, as cause against a conditional order for judgment as in case of nonsuit. An action is brought on several promissory notes in 1851, and notice of trial served and afterwards with drawn. The attorney for the plaintiff is changed in 1853. In Michaelmas term 1853, an undertaking was given that the plaintiff would go to trial at the sittings after Hilary Term 1854, as cause against a conditional order for judgment as in case of nonsuit. The attorney for the plaintiff died 17th Jan. 1854, and an affidarit was made by the deceased attorney's son, stating that he could not, after diligent search, find the notes in suit in his father's papers, so great was their number. The Court enlarged the time for going to trial, and changed the venue, to enable a trial to be had during the Spring Assizes. Joshua Clarke, on behalf of the plaintiff, moved to enlarge the time for going to trial, according INSOLVENCY. to the plaintiff's undertaking, on showing cause against a motion for judgment as in case of nonsuit, and to change the venue from Dublin to Cork. The undertaking had been given in December last to go to trial at the sittings after the present term. The grounds on which additional time is asked are that Mr. Bastable, the attorney for the plaintiff, has recently died (17th Jan. last). His son swears that he has made diligent search for the notes on which the plaintiff sues in this case, but that, from the enormous amount of papers he had to search through, he has not as yet been able to find the notes in question, which had been left with his father. J. S. Greene, contrà.-So far back as Hilary Term 1851, notice of trial in this case was served and withdrawn. The plaintiff is not entitled to any consideration when he acts in this way. One of the promissory notes in this case is dated 1842, and is out of question. The others were drawn in 1851, and the statute had almost run against them. J. Clarke replied.-The late Mr. Bastable did not become solicitor for the plaintiff until 1853. [CRAMPTON, J.-It seems a hard thing to refuse a party, under these circumstances, an opportunity of going to trial. Why do you want to try the case?] It was to satisfy the defendant, who is anxious for a speedy trial, and would prefer going to Cork and having the case disposed of at the coming assizes, to waiting until the sittings after next term. If the order to enlarge the time is made, the plaintiff's attorney says he would wish to have it at Cork. LEFROY, C. J.-We will make the order, and give the defendant his costs of appearing on this motion. CONSOLIDATED CHAMBER. Friday, Jan. 6. Special jury-Striking according to former practiceCommon Law Procedure Acts (sects. 112 Irish, and On an affidavit stating that the subsheriff of the county, 108 English). where an issue from Chancery was to be tried, was concerned in bringing about the marriage the validity of which was in question, and was one of the principal witnesses for, and a friend of, the plaintiff, the court will order the special jury to be struck according to the old practice under the power reserved in 112th section of the Common Law Procedure Act (Irish); corresponding section of the English Act, 108. order that the subsheriff of the county in which the Shikleton, on behalf of the defendant, moved for an venue was laid should proceed to strike the special jury to try the issue in this cause, according to the old practice. The question to be decided by the jury was as to the validity of a marriage which the subsheriff was concerned in bringing about. This gentleman is also one of the principal witnesses for, and a friend of, the plaintiff We swear that our object is merely to get an impartial trial. The power to make this order is reserved to the court by the section of the Common Law Procedure Act. GREEN, B.-Take the order, INSOLVENT DEBTORS COURT. (Before Mr. Commissioner BALDWIN.) Creditors-Petition-Vesting order-Filing accounts. The Court will not inquire into the motives which may induce a creditor who has his debtor in execution to apply for and obtain a vesting order; and at that stage of the proceedings it will give no opinion as to the merits of the case. All that is necessary for the creditor is to comply with the requisites of the statute. It will be unnecessary for him to set out any account between himself and the debtor if he swears that the debtor has no claim against him. The 19th section of the Irish Insolvent Act, 3 & 4 Vict. c. 107 (English analogous, 1 & 2 Vict. c. 110, s. 36) enacts that, where any prisoner charged in execution for any debt, damages, costs, &c., shall not, within twenty-one days after said prisoner shall be so committed or charged in execution as aforesaid for such debt, damages, costs, &c., make satisfaction to the creditor or creditors at whose suit such prisoner shall have been so committed, it shall be lawful for any such creditor or creditors to apply by petition in a summary way to the said court for the relief of insolvent debtors for an order, vesting the personal estate and effects of such prisoner in the provisional assignee for the time being of the said court, according to the provisions of this Act; and such petition shall be signed by the party or parties so applying; and in such petition shall be stated the time and place of the commitment or charge in execution of such prisoner at the suit of the party or parties so applying, and the amount of the debt or sum of money for which such prisoner shall have been committed or charged in execution; and such petition shall be supported by such evidence, by affidavit or otherwise, of INSOLVENCY. the truth of the matters therein stated as the said court shall think fit to require," &c. Under this section a creditor named Andrew Kerwin filed his petition and obtained a vesting order; and Hobart now came in to set that order aside, upon the ground that it was not obtained for the bond fide purpose of causing the insolvent to file his schedule or have his estate administered. The affidavit on which he grounded his application stated that Power was the plaintiff in a chancery suit against Kerwin; but the latter having a claim against him for costs, upon which he obtained a judgment, issued execution against him, and had him arrested; and then, to further embarrass him in his equity proceedings, he obtained the vesting order in question, which abated the suit until an amended bill was filed to which an assignee should be made a party-a proceeding which under the circumstances it was almost impossible to adopt, so that Kerwin by that means succeeded in putting an end to the suit, and frustrated the ends of justice. There was another objection to the vesting order which would warrant the court in setting it aside: the affidavit in support of it did not state that there was any account between the parties, as required by one of the general rules of the court; and in the case of Richardson, reported in Burke's Insolvent Practice, p. 64, the vesting order was set aside because no reason was given for not setting out crossaccounts between the insolvent and petitioning creditor. Mullens, contrà. The COMMISSIONER said that, with regard to the first ground relied upon by the counsel for the insolvent, it could not be entertained for a moment. There was nothing in the Act to authorise the court to inquire into the motives which might induce a creditor who had his debtor in execution to apply for and obtain a creditor's petition, which he was authorised to do, when the debtor remained twenty-one days in prison without filing his own petition. The statute gave the debtor twenty-one days to settle with the creditor; and if he did not do so at the expiration of that period, the creditor had a right to file a petition himself. The time was given to the debtor either to settle or petition the court himself, and if he did not do either, the statute gave a remedy to the creditor so as to prevent the debtor lying in prison as long as he thought proper, without either giving anything to the creditor, or bringing his assets into that court to be administered, and if the conditions pointed out by the statute were complied with, the court had no power whatever to inquire into the objects or motives of the creditor, or to look into the merits of the case. The statute empowered the creditor to apply by petition in a summary way to the court for an order vesting the real and personal estate and effects of such prisoner in the provisional assignee for the time being of said court, according to the provisions of this Act; and such petition shall be signed by the party or parties applying, and in such petition shall be stated the time and place of the commitment or charge in execution of such prisoner at the suit of the parties so applying, and the amount of the debt or sum of money for which such prisoner shall be so committed or charged in execution; and such petition shall be supported by such evidence as the court shall think fit to require. And then there is a rule of the court which requires the creditor to set out in his affidavit the accounts between himself and the prisoner, the securities held by him, and the benefit, if any, which accrued from his judgment. Now the creditor in the present case did all that was required by the statute; and, with regard to not setting out an account in pursuance of that rule, he swore that there was nothing due by him to the prisoner, that he had no demand against him, and consequently he had no account to set out. Even if that statement were un true, he did not think the court had power at that stage of the proceedings to investigate it. It appeared to him that the requisites of the Act of Parliament had been complied with, and that the application should be refused. (Before Mr. BERWICK, Q.C.) Re ROBERT DUFF IRONSIDE. Trading under the name of different firms, and in different places-Credits taken in balance-sheet incident to the several changes in trade-Truth of schedule. Where a trader within a short period changes frequently his place of business and name of firm under which he trades, the Court will regard such circumstance with suspicion; and if he is not able to vouch the items for which he takes credit as expenses incident to those changes, his petition will be dismissed. Where books are kept, the insolvent is bound to sustain the truth of his schedule as to his losses by reference to them. The insolvent was described as late of Victoriaroad, Cork, previously of Bank-buildings, London, trading on his own account; formerly of Newgate street, and of Bull's-head-court, and of Middle Queen's-buildings, and of Winchester-row, all in the City of London, trading with William Miller, as Ironside and Miller, and also trading with William Henry Ablett and Joseph Moore Palmer, as Ironside, Ablett, and Palmer, provision merchants, at said Newgatestreet and Bull's-head-court, London. He was opposed by Levy for a Belfast merchant, named Bell, on the ground of having contracted debts This was an appeal from an order of V. C. Kinfraudulently, and for having made away with ordersley confirming an order of the Master in Chancery, failed to account for property that came into his whereby a demand due to the appellant as solicitor of hands. The number of places and the variety of a company, whose affairs were being wound up, was names under which the insolvent traded within so allowed as a claim only, with liberty to the appellant short a period, were prima facie evidence of a fraudu- to bring an action at law. lent intention to get credit. O'Hea, for the insolvent. The COMMISSIONER said that, without going into the merits of the case, he felt bound to dismiss the petition. The number of places and the different names under which the insolvent traded, and the large sums of money he took credit for, in filling up these several places of business, although perhaps forming no specific ground of remand, should, at least, cause the court to investigate his transactions more strictly, and to be more fully satisfied of the credits which he had taken as incident to the expenses of the different changes he had made. There was one item of upwards of 6007. charged as being expended on a concern that at present appeared worth nothing; and there was another item of upwards of 10007., taking credit for losses in trade at a particular time, although there were no entries in his books to vouch those large sums. If he were adjudicating on the case, this might be evidence of suppression of property; but it was evidence that his schedule was not true. He (the insolvent), and not the opposing creditor, was bound to prove the truth of his schedule from his books; and, having failed to do so, the petition should be dismissed, with liberty to file again. (Before Mr. Commissioner BALDWIN.) Re HENRY LOFTUS TOTTENHAM, Affidavits as evidence in favour of an insolvent. Although the Court will receive affidavits in opposition to an insolvent's discharge on the part of distant creditors, it will not receive affidavits for him. All evidence in support of his case must be viva voce. The 63rd section of the Irish Insolvent Act permits affidavits to be used in opposition to the discharge of an insolvent who is imprisoned at a place distant from where his creditors reside, to which affidavits the insolvent may file interrogatories by way of reply. The insolvent in this case was opposed by his brotherin-law, who was a major in the army, on the ground of having committed a breach of trust with regard to some family property that came into his hands. A bill had been filed against him, and a decree of the Court of Ch. obtained, ascertaining the amount. Although the brother-in-law opposed, the sister of the insolvent, who was equally interested in the fund in question, was averse to the opposition. Creighton now proposed to put in an affidavit made by the sister, who could not attend to be examined, and which stated that whilst in India with her husband she received several sums of money from her brother, with which he was not credited in taking the account before the Master upon which the decree was founded; and that, in her opinion, he was not chargeable with any breach of trust. Curran, for the brother-in-law, objected to the reception of this affidavit in favour of the insolvent: such a proceeding was unprecedented. The COURT was of opinion that, although affidavits might be received in opposition to an insolvent's discharge on the part of distant creditors, any evidence in support of his case should be virâ voce, and it could not permit the affidavit to be used. House of Lords. Reported by JAMES PATERSON, Esq., of the Middle Temple, Barrister-at-Law. Thursday, March 16. TERRELL v. HUTTON. Solicitor and client-Winding-up Acts-Solicitor's costs before registration of joint-stock company. A. was appointed by the promoters of a proposed jointstock company to be the solicitor of the company, and he was from time to time directed by the provisional committee to do business as such. He continued solicitor up to the complete registration, and was thereafter continued solicitor of the registered company. The committee recognised his bill of costs up to the registration, as one of the liabilities of the company. An order was afterwards made to wind up the company, and A. carried in his bill of costs made out up to the date of the winding-up order, and offered proof of the same before the Master; but the Master, and afterwards the V. C., admitted his bill as a claim only, and left him to establish the debt at law. There was a clause in the deed of settlement, providing for payment out of the funds of the registered company of "the expenses of and incidental to the formation of the company, and the preparation of deeds," &c. Held, rescinding the order of the V. C. Kindersley, that, though the bill of costs included charges both previous and subsequent to registration, the debt, if not a legal debt by ratification, was at least an equitable debt; and that A. should have been admitted as a creditor for the amount of his bill, but subject to taxation, and so that he might be bound to show that the items were properly "expenses of and incidental to the formation of the company.' In the year 1846 certain parties proposed to establish an insurance company in London, under the name of the Independent Life Assurance Company, and the company was provisionally registered on 13th Feb. 1847, pursuant to the provisions of 7 & 8 Vict. c. 110. On the same day the appellant was appointed by the promoters to be their solicitor, and his name was registered as such. On 15th May 1817, at a meeting of the company, the following resolutions were passed :-" 1. That the several officers named in the said prospectus (which set out, inter alia, the name of the appellant as solicitor to the company), be appointed to the several offices to which their names are respectively attached, subject nevertheless to the forfeiture thereof and restrictions in the 11th and 12th resolutions; and that the name of the said company be altered to and called The Independent Assurance Company." "12. That no director of this company shall be personally responsible for the salaries of any of the officers of the company, and that no officer or officers of the said company shall obtain payment for his services, until a sufficient sum shall be obtained by the funds of the company for that purpose. Nevertheless the first fund, that shall be formed by the payment of the deposits on the shares to be taken by the directors and others, shall be appropriated to the payment of the expenses of the formation of the company." Thereafter on 22nd May 1847, another resolution was passed: "That a subscription be at once opened for the purpose of forming a fund to enable Mr. Terrell to have the said company advertised, pursuant to the resolution No. 14 of 15th May, and that the several sums subscribed and set forth in the list of subscriptions appended hereto be allowed each subscriber, as part payment of such shares as he or they may take in the said company." Various resolutions at subsequent meetings instructed Mr. Terrell to prepare the necessary deeds, to make inquiries respecting offices, to issue prospectuses, to re-register provisionally the company, &c. In pursuance of directions the appellant made out his bill of costs, and the provisional committee, on 27th May 1848, passed a resolution to the effect that the liabilities of the company at present outstanding and owing are, inter alia, the solicitor's bill, including counsel's fees." The deed of settlement was executed on 28th Aug. 1848. It was amongst other things provided, that, until the appointment of other officers in their stead respectively, under the provisions thereinafter contained, on their death, resignation, or removal, under such provisions respectively, the several personsTM therein named, all of whom had taken the number of shares thereinafter provided for the qualification of directors thereof, should be, and they were, the directors of the company, and the appellant the solicitor thereof. It was also declared by art. 29 that the costs and expenses of the outfit, establishment, management, and carrying on the business of the company (including the expenses of the houses of business, and of the fittings and furniture thereof), should be borne and paid out of and chargeable against the said permanent capital of the said company before mentioned. Art. 44 was in these terms: "That a sufficient part of the funds of the company should, upon the complete registration thereof under the provisions of the said Act of Parliament, be appropriated in payment of the expenses of and incidental to the formation of the company, including those of or having reference to the preparation and execution of that deed, and such complete registration as aforesaid, and every deed of supplement for the purpose." Art. 149: "That there should be a standing solicitor to the company, whose office it should be to transact the legal business of the company appropriate to the office of solicitor or attorney, and in the mean time, until the complete registration thereof, to make the returns by the said Act of Parliament required to be Art. 165: made by the solicitors of the company." "That the various officers of the company should be remunerated out of the funds thereof." On 4th Oct. 1848 the committee, by resolution, paid 607. " to Mr. Terrell, the solicitor, on account of stamps required for the deed of settlement." The company was completely registered on 19th Oct. 1848. On 25th Oct. 1848 the provisional appointment of the appellant, as solicitor of the company, was confirmed. On 27th Dec. 1848 he delivered to the secretary of the company his bill of costs up to and inclusive of the complete registration of the company, amounting to 581l. 138. 6d., and, after giving credit for a payment of the above mentioned 60%, leaving a balance of 5217. 13s. 6d. On 26th Jan. 1850 an order was made by the V. C. for winding up the company. The respondent was appointed the official manager. On 9th April 1850, the appellant delivered to Mr. Hutton his bill of costs, being the same as that delivered on 27th Dec. 1848, with the addition of the fees, charges, and disbursements since made and incurred up to 2nd Feb. 1850, including costs of opposing the petition for winding |