EXCHEQUER.

the plaintiff that the horse was sound. It was now contended that that was no part of the contract, the horse being sold by Tattersal, and no warranty being stated. Rule nisi. ROBERTS C. DAVIES.-Keating, Q.C. moved for a rule for a new tria', on the ground of surprise. Rule refused. EDMONDS AND OTHERS r. HODGES AND OTHERS.-JERVIS, C.J. In this case, which was moved by Mr. Chambers on Friday last, we have consulted our brother Alderson as to his opinion upon the verdict. He says he saw no reason to be dis

Monday, April 24.

satisfied with the finding of the jury; therefore there wil

be no rule.

Rule refused.

EDYE KINGSFORD.-Miller, Serjt. asked for this case, which is the last in the old new-trial paper, to be allowed to stand over, Byles, Serjt, who is on the other side, being cgaged elsewhere. Stands over.

Re HENRIETTA SNELLING.-Couch moved for an order to Master to receive and enrol an acknowledgment by a married woman under the Fines and Recoveries Act. The parties were married on 25th Nov. 1828, and lived together nü 1838, when, owing to continued ill usage by the husbad, they separated. By will, of 15th April 1838, certain property had been left to trustees, for the separate se of the wife, That property had been set up for sale, ad concurrence is needed and given. The husband bas been applied to to join in the conveyance, and has said he roald not do so, even if all the property were given to him. JERVIS, C.J.-That is enough. Rule granted. ALSOP r. BRITTAIN. On this case being called, Miller,

EXCHEQUER.

paid by the plaintiff to the use of the defendant; and the defendants pleaded a plea which is demurred to, that after the accruing of the said several debts and causes of action in the said declaration mentioned, and before the commencement of this suit, namely, on the 20th Oct. 1849, a petition for the protection of the defendant from process was duly, and according to the form of the statutes in such case made and provided, presented by the defendant to her Majesty's Court for Relief of Insolvent Debtors in England, the defendant being then a resident, and having for six calendar months previously resided within the jurisdiction of the said court, and thereupon afterwards, and before the commencement of this suit, namely, on the 22nd Jan. 1850, a final order for protection and distribution was made in the matter of the said petition by J. J. Harris, a commissioner of the said Court for Relief of Insolvent Debtors, duly authorised in that behalf." Then the defendant says, "the several debts in the declaration mentioned, and every of them, and every part thereof, were contracted before the day of filing the said petition in the said Court for the Relief of Insolvent Debtors;" and he further says, "that no description whatever of the said debts or

rit prayed it might stand over, Parry, who moved the debt, or causes of action, or of any or either of them,

ule, ard Byles, Serjt., who was to support it, being both bsent, the last-mentioned engaged at Nisi Prius. Lush, who ras to show cause, said, "This is an interpleader issue, and nder the circumstances not a proper matter for a new trial." le asked to discharge the rule. JERVIS, C.J.-If we begin o follow what is no doubt the proper rule, we must not only trike out this case, but the next and all subsequent cases on be paper. Let this for the future be well understood. very day, which is not marked for the special paper, the ourt will take the cases in their turn, whether counsel are

On

eady or not. To-morrow the court will begin this practice eremptory, and go right through the list.

Tuesday, April 25.

ALLSOP T. BRITTAIN.- In this case, which was one of inter

Lader, Neertham showed cause against a rule which had cen obtained by Parry for a new trial, on the ground that he jury did not distinguish in their verdict between two its of goods, one of which were found to belong to the laintiff, and others to another person. It was referred, pon the suggestion of the Court, to the Master, to ascertain le value of the two sets of goods. FISHER. WARREN was struck out, counsel not being

istracted.

EDIE C. KINGSFORD-New trial. To be reported.

HAREWELL &. INGRAM.—Wilkins, Serjt. moved for a rule for Lew trial, on the ground of the verdict being against evince. It was an action by the plaintiff against the editor the Lady's Newspaper, for what appeared a very clear

Wednesday, April 26.

Rule nisi.

This being a day set apart by public ordinance for humition and prayer on account of the war, the court did not

COURT OF EXCHEQUER. Reported by FREDERICK BAILEY and C. J. B. HERTSLET, Esqrs, Barristers-at-Law.

Wednesday, Jan. 25.

WILKIN AND ANOTHER . MANNING. solvent debtor-Omitting debt of a creditor from schedule. here a defendant, being indebted to a plaintiff, petitions, under the Insolvent Acts, 5 & 6 Vict. c. 116, s. 7 and 9, and 7 & 8 Vict. c. 96, s. 22, for his protection, and omits the debt due to the plaintiff from his schedule, by and with the knowledge and consent of the plaintiff, and through his contrivance and proCuring, the debt is barred. The effect of such an mission by the insolvent of any debt in his schedule is to defeat the object of the Acts of Parliament, to deceive the court and the other creditors, and to make the insolvent commit perjury. In legal contemplation, It is a fraud upon the court and creditors. Declaration for money paid, &c. Plea-That, after e accruing of the said debts and causes of action, d before this suit, a petition for the protection of endant from process was duly presented by him to Insolvent Court; that afterwards, and before this t, a final order for protection and distribution was de; that the several debts in the declaration were tracted before the filing of the said petition; and at no description whatever of the said debts, &c., in d declaration, or of the plaintiffs as creditors in pect thereof, was contained or inserted in the hedule annexed to the petition; and that the debts d names of the plaintiff's as creditors were omitted th the full knowledge and consent, and by and rough the contrivance and procurement of the intiff's. Demurrer to that plea. Prentice appeared in support of the demurrer. ere is no allegation of fraud here at all, and the ficulty is to see how the plaintiffs' debt can thus be nihilated. Can the defendant be allowed to set up = perjury to support his plea? He swore to the curacy of his schedule with the alleged omission. illips v. Pickford, 19 L. J. 171, C. P.; Howard v. artolozzi, 4 B. & Ad. 555, were cited. Quain, contrà, referred to 5 & 6 Vict. c. 116, ss. 7 d9; and 7 & 8 Vict. c. 96, s. 22; Stracey v. Blake, M. & W. 168; Carpenter v. White, 3 B. Moore, 231; brom v. Freeman, 2 Cr. & M. 451; Chitty on Conacts, 685, 670; Harrhy v. Wall, 1 B. & Ald. 103; Or. & M. 748.

so in the said declaration alleged to have been due from the defendant to the plaintiffs, and to have accrued to the plaintiff's in manner therein mentioned, or of the plaintiffs as creditors in respect thereof, was contained or inserted in the schedule annexed to the said petition, nor were the plaintiffs named or mentioned in the said schedule as creditors of the defendant for and in respect of such debts and causes of action; and that the said debts and causes of action, and the names of the plaintiffs as creditors in respect thereof, were, and each of them was, omitted from and out of the said schedule, by and with the full knowledge and consent, and by and through the contrivance and procurement of the plaintiff." To that there is a general demurrer. The demurrer raises the question whether, where the defendant has petitioned under the Insolvent Act, 5 & 6 Vict. c. 116, ss. 7 and 9, and the 7 & 8 Vict. c. 96, s. 22, for his protection, and has omitted the debt due to the plaintiff from his schedule, by and with the knowledge and consent of the plaintiff, and through his contrivance and procuring, the debt is barred. Upon this plea it must be assumed that, in the procuring the omission, there was not any actual fraudulent intention on the part of the plaintiff; and in the absence of that circumstance we have to decide whether the designed omission of the debt would necessarily be a fraud on other persons, and then what the effect would be on the right to sue for that debt. Under the 7 & 8 Vict. c. 96, s. 22, the insolvent is required to annex a schedule to his petition in the form required by the Act, which is to be verified by his affidavit. The petition states that the schedule contains a full and true account of his debts, and by section 4 all the property of the insolvent is vested in the assignees to be nominated by his creditors. By section 9 of the 5 & 6 Vict. c. 116, future effects acquired after the final order also vest in them, subject to the orders of the court; that is, the court may order such portion as the court may think fit to be taken by them. By section 22 of this Act, and section 10 of the 5 & 6 Vict. c. 116, such final order may be made which is a bar to all future actions for the debts named in the schedule, as was decided by this court in the case of Jacobs v. Hyde, 2 Exch. Rep. 508, the result is, the Legislature intended all the insolvent's creditors to be named, and that they should be exactly on the same footing, and all his effects (those before the final order absolutely, and those after sub modo) to be applied to their benefit, and then that the insolvent should be a free man. The necessary effect, therefore, of the omission by the insolvent of any debt in his schedule is to defeat this object, and to make the insolvent commit perjury, and to deceive the court and the other creditors; and although it gives the scheduled creditors a larger share of the present effects, it injures their right to an equal distribution of his future effects. The plaintiff must be supposed to have contemplated the necessary effect of his own act, and to have meant a false representation on oath to be made to the court and the creditors of the non

existence of his debt, and to preserve the power to sue for it; and in legal contemplation this is a fraud upon the court and creditors; and, as a matter of fact, one cannot suppose any innocent purpose for which such an omission could be made, unless he means to abandon it and give it up altogether. What, then, ought to be the effect of this fraud on the plaintiff's right to sue for his debt. If this had been an action on a new security for old debts, the defendant would not have been liable, on the authority of those cases in which it has been held that a warrant of attorney and cognovit given under similar circumstances to these, under the form of the Insolvent Act, of which the principle is the same as under the Protection Insolvent Act, could not be enforced. That is the case of Tabrom v. Freeman, 3 C. M. & R. 451; Jackson v. Davison, 4 B. & Al. 691. Upon the question, whether an old debt can be enforced, in the case of Howard v. Bartalozzi a different intimation of opinion was given, or an opinion intimated it may be, by Lord Feb. 23—Parke, B.--This was an action for money Denman and myself; but ultimately the case went

JUDGMENT.

Gur. adv. vult.

EXCHEQUER.

down to a new trial, and the verdict was for the defendant, and that verdict was not afterwards disturbed. The present question is, whether this old debt could be enforced. We think it falls within the same principle: to permit the plaintiff to recover it against the defendant would be to give effect to a fraud on the court and the creditors, which the law ought not to allow. The case of Steinman v. Magnus, 11 East, 391, appears to have been decided on this principle. Also Carpenter v. White, 3 Moore, 231; and Holmes v. Viner, 1 Esp. Nisi Prius, 131, where Lord Kenyon held that, where upon a general composition with creditors the plaintiff compounded one debt and kept back another, it would be a fraud on the other creditors to permit him to sue for the latter debts, and defeat the object of the composition, which was intended by the creditors to discharge the insolvent from all his debts, as well as oppression of the debtor who had given up all his property to form a fund for their benefit. And the like principle was applied to the case of a private composition, in Britten v. Haines, 5 Bing. 460. The same principle applies to the case of a distribution of the insolvent's effects under the statute. If it would be, as we think it is, and as it has been shown to be, a fraud on the court, and the creditors, and do them a wrong, to allow the original debt to be enforced by a court of justice. the court cannot permit that to be done. The plea is a good plea, and a bar to the action. Judgment therefore will be for the defendant.

Judgment for the defendant.

Wednesday, Feb. 1.

HADLEY . BAXENDALE AND OTHERS. Breach of contruct-Dumage too remote. Where two parties have made a contract, which one of them has broken, the damages which the other ought to receive should be such as may fully and reasonably be considered either arising ordinarily-that is, according to the usual course of things, from such breach of contract itself-or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract.

This was an action brought against the defendants, as carriers, for their neglect and delay in conveying the shaft of a flour-mill, delivered to them for the purpose of being carried to be repaired, and also to serve as a model for a new one, and their omission to deliver it within a reasonable time. The mill was stopped for want of this new shaft, and the defendants, it was alleged, had notice of it. The cause was tried at Gloucester, before Crompton, J., when a verdict was returned for the plaintiff, 257. beyond the sum the defendants had paid into court. A rule nisi having been obtained to set aside the judgment and verdict for the plaintiff, and for a new trial, and that the plaintiff be directed to refund the damages:

Keating, Q.C., and Dowdeswell, showed cause.The rule was obtained on the ground that the judge at the trial should have told the jury that the damage was too remote. [ALDERSON, B.-Suppose I have a will made for my uncle, a very rich man-made entirely in my favour, at his request, and which he intends to sign-and I send it to him by carriers, and it is delayed by their neglect until he is dead; are they to be liable for the loss to me of the benefit under the will?] Here the defendants had notice of the facts, and that the shaft was required to be delivered at once, as the model for the new one to be made, and that the new one was wanted, the mill being stopped till it was brought. The authorities would appear to show the defendants were liable in such a case. The following were then referred to:-Sedgwick's book on Damages, pp. 80, 90, 94, 96; Morse v. Barns, Sir T. Raymond's Reports, p. 77; Borradaile v. Brunton, 8 Taunt 535; S. C. 2 B. Moore, 582. [PARKE, B. referred to 2 Bulstrode, 332] Ingram v. Lawson, 6 Bing, N. C. 212; Bodley v. Reynolds, 8 Q. B. 779; Buller's N. P., Kettle v. Hunt, 78a; Black v. Baxendule, 1 Ex. 410; Brandt v. Boltby, 2 B. & Ad. 932; Waters v. Towers, 22 L. J., Ex., and 8 Ex. 401; Smith v. Ward, 11 Price, 19. Adjourned.

Thursday, Feb. 2.-Whateley, Q.C. (Willes and Phipson with him) in support of the rule. There was evidence that the plaintiff was making 251. a day, and there was a delay of five days in transmitting the shaft; the jury ought, therefore, to have given 1251. or nothing. There was no special contract, and the defendants had no knowledge of the inconvenience to which the plaintiff was subject by the delay: (Borradaile v. Brunton, 8 Taunt. 535.) [ALDERSON, B.-I should very much doubt that case, both in law and in fact.] When a man enters into a contract, it is his duty to take into consideration what would be the natural result of a breach of it; but he is not bound to consider what damages might by possibility arise to the other party-and that is this case; the damages here are too remote. The principle has been much considered in the American courts, and they have gone so far as, in cases of illegal capture, to refuse to allow a calculation of profits (Sedgwick, 76-78; Schooner Lively, 1 Gallison Rep. 314) and there are many English cases in conformity with this opinion (Jones v. Gooday, 8. M. & W. 146.) [PARKE, B.-That was in consequence of the determination of the court in the case of The Duke of Newcastle v. The Hundred of Broxtowe, 4 B. & Ad. 273. There, an action hav

EXCHEQUER.

ing been brought against the hundred in consequence of the destruction of Nottingham Castle by rioters, it was held that the jury ought to consider what sum would be necessary to replace the building in the state it was in when the outrage was committed, and not whether the plaintiff was likely to make it his residence, or whether it was suitable for such residence; and, the jury having given damages to the amount of 21,000, the court upheld that decision, and an Act was passed to spread the damages over several years.] The weight of authority fully bears out this principle, that the damages must be the necessary and iminediate consequence of the act of the defendant. If a man seek to impose on the carrier any extra responsibility, he ought to make a special contract; here there was nothing beyond the ordinary bargain with the carrier. The judge ought to have told the jury that this loss to the plaintiff was not the natural and necessary result of the delay, and that they were to give the value of the piece of shaft lost. It has been said on the other side that 25%. having been paid into court by the defendant proves that he felt that his negligence subjected him to make good the loss sustained by the defendant, and not merely the value of the old shaft; but that sum was paid in for the purpose of stopping the action, and if it was too much, it arose from the liberality of the carrier, and his desire to avoid litigation, and ought not to be used to his prejudice. Here the damage was not the immediate, direct, and necessary result of the breach of contract. Broom's Max. 95, 1st ed.; Martin v. Fothergill, 7 C. & P. 392; Watson v. Ambergate Rail. Co. 15 Jur. 448; Vickars v. Willcocks, 8 East, 1; Archer v. Williams, 2 C. & K. 26; Foxhall v. Barnett, 23. L. J. 7, Q. B.; Holloway v. Turner, 6 Q. B. 928; Black v. Baxendale, suprà Lumley v. Gye, 2 Ellis & Black. 216; De Vaux v. Salvador, 4 A. & E. 420, were referred to. Cur. adv. vult. Feb. 23.-ALDERSON B. delivered judgment.-We think that there ought to be a new trial in this case; but in so doing we deem it to be expedient and necessary to state explicitly the rule which the judge at the next trial ought, in our opinion, to direct the jury to be governed by when they estimate the damages. It is, indeed, of the last importance that we should do this; for, if the jury are left without any definite rule to guide them, it will, in such cases as these, manifestly lead to great injustice. The court has done this on several occasions. In Blake v. The Midland Railway Company, 1 L. J. 237, Q. B., the court granted a new trial on this very ground, that the rule had not been definitely laid down to the jury by the learned judge at Nisi Prius. Now we think that the proper rule in such a case as the present is this: where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fully and reasonably be considered either arising naturally, that is, according to the usual course of things from such breach of contract itself, or were such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiff to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances, so known and communicated. But if, on the other hand, those special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by the special circumstances from such a breach of contract; for, had the special circumstances been known, the parties might have specially provided for the breach of the contract by special terms as to the damages in that case, and this advantage it would be very unjust to deprive him of. Now the above principles are those by which we think the jury ought to be guided, in estimating the damages arising out of any breach of contract. It is said that other cases, such as breaches of contract for the nonpayment of money, or in the not making a good title to land, are to be treated as exceptions from this, and as governed by a conventional rule; but, as in such cases both parties must be supposed to be cognisant of that wellknown rule, these cases, we think, may be more properly classed under the rule above enunciated as to cases under no special circumstances, because then both parties may reasonably be presumed to contemplate the estimation of the amount of damages according to the conventional rule. Now, in the present case, if we are to apply the principles above laid down, we find that the only circumstances here communicated by the plaintiff to the defendant, at the time when the contract was made, were, that the article to be carried was the broken shaft of a mill, and that the plaintiff was the miller of that mill; but how would these circumstances show reasonably that the profits of the mill must be stopped by an unreasonable delay in the delivery of the broken shaft by the carrier to a third person. Supposing the plain

EXCHEQUER.

for 190/.

EXCHEQUER

He was about to pay for them; bat, not having his cheque-book in his pocket, it was agre the cattle should stay in the plaintiff's field until the following Tuesday, as it was inconvenient to the defendant to drive them to his own fields before, and that the plaintiff should receive defendant's cheque for the money at any time he would call for it: it was also arranged that the plaintiff should allow defendant's men to feed them with hay, which the plaintiff consented to supply while the cattle remained in the plaintiff's field. This was done until the following Wednesday. The defendant afterwards refused to fulfil his agreement for the purchase, and this action was brought. It was tried before Martin, B, at Taunton; and, as the learned judge was of opinion there was no evidence to go to the jury of a sufficient acceptance and delivery to bind the bargain within the meaning of the 17th sect. of the Statute of Frauds, he directed a nonsuit, with leave to move to set the same aside if the court should entertain a different opinion.

tiff had had another shaft in his possession put up, or putting up at the time-that he only wished to send back the broken shaft to the engineer who made it ; it is clear that this would be quite consistent with the above circumstances, and yet the unreasonable delay in the delivery would have no effect upon the intermediate profits of the mill. So again, suppose at the time of the delivery to carry the machinery, the mill had been in other respects defective, then also the same result would follow. Here it is true that the shaft was actually sent back to serve as a model for the new one, and that the want of the new one was the only cause for the stopping of the mill; and the loss of profit really accrued from not sending down a new shaft in proper time, and that this arose from the delay in delivering the broken shaft to serve as a model; but it is obvious that in the great multitude of cases, a miller sending a broken shaft to a third person by a carrier under ordinary circumstances, such consequences would not in all probability have accrued; and these special circumstances were never here communicated by the plaintiff to the defendant. Kinglake, Serjt. moved accordingly to enter a verIt follows, therefore, that the loss of profit here cannot dict for the plaintiff, or for a new trial; there was reasonably be considered such a consequence of the some evidence to go to the jury of a delivery and breach of contract as could have been fairly and pro- acceptance, and the circumstances and facts of the perly contemplated by both the parties when they case would have justified the learned judge in leavin made this contract; for such a loss would neither the question to them. Moreton v. Tillett, 15 Q.B. have followed naturally from the breach of contract 428, and, in a note to that case, Bushell v. Wheeler, in the great multitude of such cases occurring under p. 442; Chaplin v. Rogers, 1 East, 192; Norman v. ordinary circumstances; nor were the special circum-Phillips, 14 M. & W. 277; Elmore v. Stone, 1 Taunt. stances which perhaps would have made it a reasonable and natural consequence of such breach of contract communicated to, or known by, the defendant. The judge, therefore, ought to have told the jury that, on the facts then before them, they ought not to take the loss of profits into consideration at all in estimating the damages. And therefore there will be a new trial. Lewis.-Does your Lordship say anything about the costs? The counsel are not in attendance. [ALDERSON, B.-No; it follows the general rule of a new trial for misdirection. PARKE, B.-The rule will be absolute in the terms.] Under one of the new rules, my Lords, I believe each party pays his own costs on account of misdirection, unless your Lordships gave a special direction. [PARKE, B.-The money has been levied and paid.] Your Lordships do not think it ought to make part of the rule that the costs of this trial shall abide the event of the second? [PARKE, B.-No; certainly not. ALDERSON, B.-No, because it is misdirection; in fact, these profits made a difference in the verdict. The verdict should have been for the defendant if the profits had not been taken into consideration, and there was plenty of money paid into court to govern the ordinary consequences. PARKE, B.-As the principle has been established, there will probably be no further litigation about it.] I believe there will; we are desirous, I believe, of going to a court above this. [ALDERSON, B.-It is misdirection.]

Rule absolute for a new trial. Note. This judgment was not sent to our reporters by our shorthand-writer until they had left town for circuit, which is the cause of its delay.

Saturday, April 22. STEVENS v. THE MIDLAND RAILWAY COMPANY AND

LANDER.

A. was

458.

POLLOCK, C. B.-I think there was no evidence to go to the jury in this case, as there was no acceptance and actual receiving of the cattle, which was neces sary to satisfy the terms of the statute. There may be some difficulty in perhaps reconciling all the cases decided upon the subject; but each is governed by its own peculiar circumstances, and it must necessarily be so. Here there was nothing to show the property passed.

PARKE, B.-I also think there was no reasonable evidence to go to the jury of an acceptance by the defendant, and his actually receiving the cattle; and there must be both to constitute a delivery and acceptance within the meaning of the Statute of Frauds. Did the owner of the cattle lose his lien in consequence of what took place between himself and the defendant? Is there the least doubt about it, that the seller retained his lien? The seller clearly did retain his lien. Elmore v. Stone differs from this case.

ALDERSON, B. gave a similar judgment. MARTIN, B.-I should have been glad if I could have seen my way clear to have given the plaintif all aid to recover his money, as no doubt he was very harshly treated. The bargain was a fair bargain, when made between the parties, and the defendant acted very shabbily in retreating from what he had said an! done; but still we must decide according to the law. It was a ready-money purchase, and there never was intended to be an acceptance or receipt until the money had been paid. Mr. Hoskins would have no right to take away the cattle until they had been paid for; he would have been liable to an action of trespass against him if he had taken the cattle before he had paid his money. I thought at the trial there was no evidence of Hoskins accepting and actually receiving the cattle to be left to the jury and I remain still of the same opinion. Rule refused.

Monday, April 24. LEE . SMITH. Agreement-Terms of holding-Evidence. In an action for excessive distress, the defendant having seized for two quarters' rent when one only was due an agreement was produced, the terms of which wer "that the rent was to be paid quarterly, and to be d in advance." The agreement was void, under 8 & 9 Vie c. 106. A receipt given to the plaintiff by the de dant was also produced, which expressed that the m had been received “for rent due in advance," althoug it had not been paid in advance. Held, that the agreement and receipt might be receive in evidence to show the terms under which the printi held, which were binding upon him as to the terms holding the premises as a yearly tenant; and ser per Martin, B. that the agreement alone would h been sufficient for that, purpose.

This was an action for excessive distress. first count of the declaration was for an excessive tress in having seized for two quarters' rent when only was due; the second, for money had and ceived. Pleas: 1. Not guilty by statute. 2. New indebted. The plaintiff was the assignee of o Follett, who had entered into an agreement to certain premises, "the rent to be paid quarterly, to be due in advance;" the first quarterly rent to 161. 3s. 4d., the second 251.; then for three years 1807. a year; and 2001. a year for the remainder the coachmaker's term. These were the terms up which Follett had taken the premises; and, a qua ter's rent being due on the 24th June 1853, onl 11th August following a distress was put in for two quarters' rent at 180l. a year. This action was t brought, and at the trial before Platt, B. at Liverpo the jury returned a verdict for the defendant, lea being reserved to the plaintiffs to move to enter verdict for the plaintiff for 45l.

EXCHEQUER.

Knowles, QC. now moved accordingly.-The disress was made for two quarters, when only one was due. The agreement in question gave the landlord no right to distrain beforehand.

This document

Rule nisi.

MARTIN, B.-Is not the receipt strong against Fon?

kha Diesas à vich ཟླ་

PARKE, BYou have acquiesced in the terms of the agreement by acting upon it; and the holding under the terms of the agreement was good until such notice as would determine the tenancy from year to year was given. There was ample evidence that, akhough the agreement was void, the parties conted to be tenants from year to year on the terms of paring rent in advance, and had acted upon it.

MARTIN, B.-I think there would have been suffident evidence without producing the receipt. PARKE, B.I am not prepared to agree to that; bat it is unnecessary to consider that point.

Rule refused. end in Tuesday, April 25.4 1 PACESCO ROWBERRY V. MORGAN. Common Luto Procedure Act New rules-Practice. Tent moved in this case to set aside the writ of f herein, and all subsequent proceedings, on the ground of irregularity. It appeared that a writ of ons had been issued on the 9th, specially red on the 11th it was served; on the 20th jlerent was signed for want of an appearance; and on the 27th (Monday) the execution was issued. The Cammon Law Procedure Act (15 & 16 Viet. c. 76), et 27, provides that the plaintiff may, upon such aut. issue execution at the expiration of eight days from the last day for appearance, and not before." A Sower is by that Aet given to the learned judges to ne rules of practice, and, accordingly, by the 174th it is ordered that "in all cases in which any parlar number of days, not expressed to be clear is prescribed by the rules or practice of the arts, the same shall be reckoned exclusively of the fr day and inclusively of the last day, unless the

shall happen to fall on a Sunday, Christmas * Good Friday, or a day appointed for a public der thanksgiving, in which case the time shall be rekland exclusively of that day also." In this case the last of the eight days happened to be a Sunday, and therefore the defendant would be entitled to the vids of the following day (Monday); instead of the plaintiff issued his execution on the MonRule nisi.

LA BUSINESS OF THE WEEK. »Í, Friday, April 21.

COCKRANE E. HACKETT. Rule refused. SCITOS B. CASTLEDINÉ. „mbad" Rule refused. HALLISON AND ANOTHER . HORSFALL.Tried at Liverpool, Pure Plati, B.; verdict for the plaintiff, with leave rered to move to enter the verdict for the defendant. * QC, now moved accordingly. This was an action er for tobacco, rum, &c., and the second count of the darkan stated that the defendant was indebted to the 2. f in divers goods and chattels that is to say, palm There were also counts for money had and received, and account stated. It appeared that a Captain Wiley was Font for the plaintiff, and a Captain Thompson for the at: and the latter having fallen in with the ship * Werticy, belonging to his owners, a wreck, and de4. be applied to Captain Wiley for assistance to repel hacks, who had possession of the vessel. On surveying a discovered that she had lost twenty sheets of and her masts, and two-thirds of her cargo had been g. Under these circumstances the captain deterE to self what remained, and Wiley himself bought **wth, and gave his owners the option of taking it, they did; and Thompson bought about 2000!, worth, asing matter now in dispute. The question was, Ley, ander all the circumstances of the case, a right Rule nisi granted. A & Hirs.Tried at Stafford, before R. Gurney: for the plaintiff för 5821, in addition to 50% paid into in sateley, QC.ệ moved, by leave reserved, to increase vlat by 1224. The action was for trespass in digging Escals, The value of the coals at the pit's mouth defa efter deducting expenses of raising; but the Sind contended that he had a right to deduct 1227., under ordinary circumstances, would be paid to the *he royalty, "Martin v. Porter, 5 M. & W. 352; Wild W1672; Morgan v. Powell, 3 Q B. 278: 27. Hererood: 3 Q. B 440; Sedgwick, 536, were referred Rule nisi granted. * I* CAMPBELL, Tried at Liverpool before Platt, B.: farfimuin, damages 1251. H. Hill, Q.C., moved, by served, to enter the verdict for the defendant. The * stated a contract by which defendant agreed to Sf 100 tons of Petersburgh clean hemp, expected * curtain ships, viz. 50 tons by the George Green, y the Diana, at 341, a ton, Plea, that before fred die contract was rescinded: (Steud v. Dorber, -v. Brown, 12 Q. B. 801.) Rule rási,

Rule nisi.

MORTEN V. LAKING.-Tried at Derby before Jervis, C.J.: verdict for plaintiff. Ejectment for certain leasehold premises at Dovehold, Derbyshire. Mellor, Q.C., moved to enter

a

nonsult, or for a new trial, on the grounds of misdirection, that the verdict was against the evidence, and the improper Rule nisi. reception of evidence.

DAVIS . JONES.-Tried in Merionethshire before Williams, J., verdict for plaintiff. Welsby moved for a new trial on the ground that the verdict was against the evidence and affidavits. Rule nisi.

PIERCE WILLIAMS.-Tried at Anglesea before Williams, J.: verdict for plaintiff for 731. 12s. 9d. M. Lloyd moved to enter a nonsuit or to reduce the damages. The action was by a guarantor against the person guaranteed, and the question plaintiff before he had paid the claim. was whether there had been any sufficient demand on the Rule nisi.

GIBSON T. STURGE-Tried before Martin, B., at Guildhall: verdict for plaintiff for 444. 11s. 5d. Bramwell, Q.C., moved to enter a nonsuit, The action was for freight for carrying goods. 2664 quarters of wheat were put on board the Prompt; but, in consequence of their becoming damaged by water, when they were unloaded they were found to have increased to 27854 quarters, and the question was on which quantity was freightage to be paid: (Abbott on Shipping, 410.) Rule nisi. TIBBETTS. FOLL-Tried at Gloucester before Wightmau, J.: verdict for defendant. Whateley, Q.C., moved for a new trial, on the ground that the verdict was against evidence and misdirection. The COURT said they would confer with the learned judge who tried the canse.

KIMPTON. THE LONDON AND NORTH-WESTERN RAILWAY

COMPANY.-Tried at Liverpool before Platt, B.: verdict for plaintiff for 231 on first and fifth counts, and for 100% on second, third, and fourth counts. This was a motion for a new trial, or to reduce the damages on the second, third, and fourth counts on the ground of misdirection. Declaration-First count, nondelivery of parcel; Second, refusal to accept and carry; Third, the same as to another parcel; Fourth, the same as to another parcel; Fifth, trover. Pleas-To first count, that an action was brought after the accruing of the cause of action in the Co. C. of Liverpool and satisfaction; Second, action and judgment in consequence of such satisfaction. Replication-That plaintiff did not sue for the same cause of action. The question was whether the judgment in the Co. C. was in respect of the same cause of action: (Bagot v. Williams, 3 B. & C. 235.) Rule nisi.

AMOR v. MASTERS.-Tried before the Lord Chief Baron, in Middlesex; verdict for the plaintiff for 251. Watson, Q. C. moved for a new trial on the ground of misdirection, that the verdict was against the evidence, and also upon affidavits. It was an action of detinue for a watch. Pleas-1. Non detinet; 2. That the watch was not the plaintiff's watch; 3. That the detention was by the defendant as collector of rates for the parish of Marylebone, &c., and that no notice of action had been given to him; 4. That plaintiff occupied premises in the parish of Mary-le-bone; that he was in arrear for poor-rates for six quarters; that he was summoned before a magistrate, &c., for payment; that a warrant was issued for nonpayment, and granted to the defendant; and that he seized the watch thereunder. Replication to the third and fourth pleas de injuria. (The Mary-le-bone Act, 35 Geo. 3, c. 73, s. 187, was referred to.) Rule nisi. v. TAYLOR.-Mellor, Q. C., moved in this case, tried before the Chief Justice of the Common Pleas at Warwick, to set aside the defendant's verdict and for a new trial, on the ground of misdirection, and that the verdict was against evidence. Rule refused.

REG. . HOWARD AND ANOTHER.--Huddlestone moved for a habeas, that the defendant, committed under the Vagrant Act (5 Geo. 4, c. 83, s. 4) to Northleach prison, may be discharged on the ground of the invalidity of the commitment, it being too general. Application may be renewed. Monday, April 24. RODRIGUES V. MELHUISH AND OTHERS. Tried before Platt, B. at Liverpool. The action was brought by the owners of an anchor boat against the owners and the pilot of a ship, for damage done to the boat; and a verdict was returned for the plaintiff. Knowles, QC. now moved, on behalf of the owners, to enter a verdict for the defendants pursuant to leave; and Cowling moved, on behalf of the pilot, for a new trial, on the ground of misdirection.

Rules nisi granted, on the ground that the joint liability alleged in the declaration was not proved. BEAVAN t. MACDONALD.-Tried at Hereford before Wightman, J.: verdict for plaintiff for 4481. Whateley, Q.C. moved for a new trial, on the ground of the improper reception of evidence. Rule nisi.

WEEKS v. REED AND ORME-Tried before Jervis, C.J.: nonsuit. Mellor, Q.C. moved, pursuant to leave reserved, to enter a verdict for the plaintiff. The action was for money had and received, and on an account stated. Plea, never indebted: (Edwards v. Lowndes, 22 L. J. 104, Q.B.; Roper v. Holland, 3 A. & E. 99; Martin v. Binnam, M. & W.; Morgan v. Thomas, 8 Ex. 302.) Rule nisi. HARRIS v. CHILD-Tried at the Kent assizes before Parke, B.: nonsuit. Cur. ado, vult.

VASING . WATSON. Tried at Nottingham before Coleridge, J.: verdict for the plaintiff, 201 Action for a malicious prosecution. Macaulay, Q.C. moved for a new trial, on the ground that the judge did not leave to the jury from what facts malice might be inferred. Kule nisi.

SMITH V. CODD.-Tried at Lincoln before Jervis, C.J.: nonsuit. Macaulay, Q.C. moved for a new trial, on the ground of misdirection. Rule nisi.

EVANS . THE ROYAL INSURANCE COMPANY.-Tried before Pl ft. B. at Liverpool: verdict for the plaintiff for 25007. Wilkins, Serjt. moved for a new trial, on the ground that the verdict was against evidence. Rule nisi.

EXCHEQUER.

THEOBALD v. THE RAILWAY PASSENGERS INSURANCE COMPANY. Tried before Pollock, C. B. at Guildhall: verdict for the plaintiff: damages on the first issue 341., and on the second 1001. Macaulay, Q.C. moved, pursuant to leave reserved, to enter a verdict for the defendant, or to reduce the damages on the second issue. The question turned on the terms of the policy, and the company's Act, 15 Vict. c. 100, 8. 12, L. P. & P., and also on what was a railway accident within those terms: the plaintiff having slipped off the step of a railway carriage whilst it was stationary.

Power reserved to defendant to amend the plea alleging negligence to an averment that the accident was not a railway accident. Kule nisi. SHEVAL . M LELLAN.-Tried before Platt, B. at Liverpool: verdict for the plaintiff for 5007. Libe!. Atherton, Q.C. moved for a new trial, on the ground that the damages were excessive. Rule refused.

Tuesday, April 25.

THOMAS v. RUSSELL Cur, adv. vuit. BULL v. ROBISON.-Tried before Platt, B. at Liverpool: verdict for the defendant. Watson, Q.C. moved for a new trial, on the ground of misdirection. The question turned upon the effect of the warranty in the case, and what was the proper meaning to be given to the term "merchantable." Gardiner v. Gray, 4 Camp. 144, was cited. Rule nisi. ROBISON v. BULL-A cross-action for not delivering the iron. The action in this case was premature, as the time had not expired. Rule nisi. SHAW . MOORE.-Watson, Q.C. moved in this case, tried before Platt, B. at Liverpool, to set aside the defendant's verdict, on the ground of misdirection. Rule refused. TOPPING, HETHERINGTON.-Edward James moved in this case, tried before Platt, B. at Carlisle, to set aside the plaintiff's verdict and for a new trial, on the ground of misdirec tion. It was an action of ejectment; and the question was, whether there was any assignment or surrender sufficient in law, or whether, under the circumstances, it was not necessary that the plaintiff should have given the defendant › a notice to quit before bringing the action. Rule nisi. LANGENSEE, STORER.-Tried before Platt, B. at Liverpool: verdict for the plaintiff, 687, 98. Edward James moved for a new trial, on the ground of misdirection, or to reduce the damages, or to enter a verdict for the defendant. It was an action upon an agreement that there should be shipped ten tons of dry raisins at a certain price, or five tons at a certain other price, and to be paid for in manner therein mentioned, by acceptance of a bill. Pleas: 1. That he did not make such an agreement. 2. Denial of shipping, &c. 3. Did not accept a bill for such costs and freight, nor was such tendered as alleged. 4. That the quantity was not offered to defendant. 5. Never indebted to the common money counts. 6. Fraud. The first, second, fourth, and sixth issues found for the plaintiff; the third and fifth for defendant There was no su hicient evidence of agency, and no acceptance under the statute of frauds; and on the second and fourth issues' the verdict should be for the defendant, and he would be substantially entitled to the verdict. Rule nisi.

EASTHAM V. BLACKBURN RAILWAY COMPANY.

Rule refused.

HUGHES v. EVANS.-Grove, Q.C. moved in this case, tried before Crompton, J. at Cardigan, to set aside the plaintiff's verdict in ejectment, and for new trial, on the ground of misdirection. He cited Henning v. Archer, 8 Beav. 294. PARKE, B. referred to the note in 3 M. & Gr. 733, on Dis- claimer; and 3 Coke's Reports, 96. Rule nisi. Cur. ade, vult.

CHAPLIN . LEVY.

WYNNE AND OTHERS T. PIERCE.

To consult Williams, J., before whom it was tried. ARNOLD v. HAMEL. Rule nisi. JONES v. WELLS. Rule refused. WOODWARD T. WALTON.-Dasent moved for a new trial in this case upon affidavits. Rule nisi.

Cur. adv. vult.

Cur, adv vult.

Cur, adv. vult. COURT said in this Rule nisi.

Thursday, April 27. NOSWORTHY v. NORTON, GARDINER v. ROWETT NEILE r. RIDLEY. WYNNE AND OTHERS. PIERCE-The case a rule nisi would be granted. HOLT . ROBERTSON.-H. Hill, QC. moved in this case, tried before the Chief Baron in Middlesex, to set aside the defendant's verdict on the second, fourth, and fifth pleas, and for a new trial, on the ground of misdirection. It was an action to recover the amount of a cheque for 300%, drawn 10th Nov. 1851. The second plea was, that the defendant was not the lawful holder of the cheque. Fourth, that it was made by defendant, and delivered to one Mills; that defendant had satisfied the amount of it, and Mills afterwards transferred the cheque without value; and that plaintiff was the holder without value. Fifth, similar; and that the cheque was transferred in fraud of the defendant, and that plaintiff had notice of it. The cheque, it seemed, had been banded over by Mills to the plaintiff, who, it was said, owed the plaintiff at the time 5001. This occurred about October 1852, and the cheque was not presented for a year after that; but neither of the pleas was proved; and the learned judge had mi-directed the jury upon the question to be left to them: (Uther v. Rich, 10 A. & E. 784) PARKE, B. referred to Rothschild v. Corney, 9 B. & C. 388. Rule nisi.

PICKLES v. HOLLAND.-Wheeler moved to set aside an order of Martin, B., and the subsequent proceedings thereon. It was an order for a writ of trial before the sheriff. This was an action of trover, and the damages were unliquidated; there was no indorsement upon the writ, and this was not therefore a case under the 3 & 4 Will. 4, that could be tried before the sheriff. On the trial the objection was taken that the writ had inproperly issued. Rule nisi. MOORE v. BLAKEY.-Dowdeswell moved to set aside the defendant's verdict, on the ground of surprise, upon affidavits, and for a new trial. Rule nisi.

KEMPTON . THE LONDON and NORTH-WESTERN RAILWAY COMPANY, ex parte KEMPTON.-Watson, Q. C. moved that Kempton be discharged out of custody, and that the officer arresting him should pay the costs occasioned thereby. Kempton was attending the trial of the cause, and was also a witness; he was therefore protected from arrest in going to, staying at, and returning home from the place of trial. The officers watched him to his door on his return home, and then took him into custody. Kule nisi. ABLETT. EARLE-T. W. Suunders moved to make this rule absolute; no cause shown. Rule absolute.

ROLLS COURT.

of money for the differences and commission on such continuations; and the plaintiff, at the request of the defendant, deposited the transfer-deed of the New Rhymny Iron shares as security for the amount so alleged to have been paid by him on account of the plaintiff, and also paid to the defendant Trye a considerable sum of money in respect of such alleged payments made by the defendant for him.

The bill then stated a similar purchase by the defendant for the plaintiff of shares in the Chester and Holyhead Railway, and carrying over the settlement of such purchase from time to time, and which purchase the plaintiff alleged was in like manner entirely fictitious. On the 14th July 1853, a large balance being due to the defendant Trye from the plaintiff, on the said supposed continuations in respect of both purchases, the defendant professed to sell the said South-Eastern and Chester and Holyhead shares at a great loss, and also the new Rhymny Iron shares, leaving a balance still due to him from the plaintiff. The defendant delivered to the plaintiff sold notes or advices of such sales of the said shares; but the bill stated that the plaintiff had since discovered that such sold notes of the said railway-shares were fictitious, not corresponding to any real sale of the said shares actually effected by the defendant Trye; and that the object of the defendant in such misrepresentation was to close the transactions, as if the said purchases and sales had been genuine, and to charge the platin with the whole difference in the price of such shares respectively, besides broker's commission on such purchases and sales. The bill then charged, that, if the defendant Trye alleged that the said transactions were real and bona fide, he ought to set forth the names of the vendors, and also, in the very words and figures thereof, all the entries contained in his books referring to the purchase or contract for the purchase of the said shares; also the dates of the sales of the said shares, the names of the purchasers, with the sums paid by them respectively, and the particulars of the mode in which such sums were paid, the dates, and any other material particulars' of any cheques given in payment, and the mode in which any sams received were afterwards applied by the said defendant; and, in particular, whether any of such sams were paid to any party or parties whom the defendant alleged to be the vendor or vendors of any of the said shares to the plaintiff, or to have taken in or continued such shares on account of the plaintiff; and if so, how in particular, and to whom by name, such payments were made; and also to set forth, in the very words and figures, all the entries contained in his books referring to the sale of the said shares, or the payment for the same, or the application of such payments. The bill then charged that such continuations of the said shares were wholly fictitious, and that, if the defendant should allege that he had made any payments in respect of any alleged continuations, he ought to set forth in like manner full particulars of such payments, with the names of the parties, and the entries in his books relating thereto. The bill then stated that he had discovered that the Rhymny Iron shares had been sold by the defendant to the said defendant M'Call; and charged that it was a concerted plan to obtain for the defendant M'Call the said shares at less than the fair price, taking advantage of the pecuniary embarrassment of the plaintiff; and the bill charged that the said sale was fraudulent and

void.

The bill prayed a declaration that the said purchases and sales of the said railway and other shares were fictitious, and not binding on the plaintiff; and that the plaintiff was entitled to be relieved from them; and for consequential relief.

ROLLS COURT.

question is, what is the effect of the words in the statute 7 Geo. 2, c. 8, "any public or joint-stock or other public securities"? The court would not hold that trustees properly executed their trust by the purchase of shares or stock in any ordinary jointstock company. I cannot draw a distinction between a company under the Joint-stock Companies Act and one incorporated by Act of Parliament. The usual clause contained in an Act of Parliament incorporating such companies, that the Act shall be considered as a public Act, does not make it a public Act in the ordinary sense of the term. The effect of it is simply that the court is bound to take cognisance of it without its being specially pleaded. In my opinion the statute refers only to those stocks which are ordinarily considered as public funds or securities, namely, those for which there is a guarantee by the Government that the dividend and capital shall be paid-in the absence at least of any authority to that effect; and I am not aware of there being any. If I am right in this view of the case, there can be no penalty for dealing either in the railway-shares, or in those of the iron company, the shares in which appear to me to be in the same situation as the railwayshares. But, assuming that the defendant would not be liable to penalties by answering the interrogatories, another question is raised for the defendant. These transactions are either illegal or legal; if illegal, then it is contended there is no relief; and if legal, the relief is at law. There are, however, many cases which show that, though there may be no remedy at law by reason of the illegality of a transaction, yet this court will compel parties to account as between themselves. The case of Sharp v. Taylor is an instance of this rule of the court, which rests upon a different foundation, and proceeds upon a different view of the question from that which would guide a court of law, with respect to allowing an action to be maintained upon a transaction of an illegal nature. But, in fact, how can I tell whether these transactions were or were not illegal, until I know what the facts of the case are; or whether they are of such a nature as that this court will give relief? Even, therefore, if it should appear upon the answer that the transac tions were illegal (about which I express no opinion), since the defendant does not subject himself to any penalty by reason of his answering, I think he is bound to answer. But it is argued that, assuming the transactions to be legal, there is a remedy at law, and therefore this court ought not to grant relief; but there are many cases in which there is a remedy both at law and in this court. In Mackenzie v. Johnson Sir John Leach laid it down that an account always lies between principal and agent; and that, whenever there are dealings between principal and agent, a suit may be instituted for the purpose of obtaining an account; and that, if an agent, by reason of his agency, obtains for himself advantages which were not included in the contract, this court will make him account, and repay to his principal what he has wrongfully received, although no action could be maintained at law in respect of it. I acted upon this principle in the case of The York and North Midland Railway Company v. Hudson, 22 L. T. Rep. 29, and in many other cases. According to the allegations in the bill, though they are not very precise, assuming some of the interrogatories which the defendant refuses to answer to be answered in the affirmative, a case of this description is made out against the defendant. Taking this view of the case, and there being, in my opinion, no penalty or forfeiture by reason of answering the interrogatories, I am of opinion, whether the transactions be legal or illegal, that in either case the defendant is bound to answer

but I entertain a very strong opinion upon the subject: (see Hewitt v. Price, 4 Man. & Gr. 335.) The costs of the exceptions will be costs in the cause.

Feb. 17, 20, and 22. WILSON v. DUNSANY.

Rompell, Q.C., and Renshaw, in support of the exceptions, cited Green v. Weaver, 1 Sim. 404; Hender

V. Bice, 3 Stark. 158; Ex parte Dyster, 1 Mer. 155; Wells v. Porter, 2 Bing. N. C. 722; Oakley v. Rigley,

Ib. 782.

Bagallay (Palmer, Q.C. with him) cited Short v. Mercier, 3 Mac. & Gor. 205, 214; Grisewood v. Blane, 21 L. J. 46, C. P.; 8 & 9 Vict. c. 109.

The MASTER of the ROLLS mentioned Sharp v. Taylor, 2 Phil. 801.

The MASTER of the ROLLS.-In my opinion the defendant must answer the interrogatories. The first

VOL. XXIII.-No. 579.

ditors-English and Irish assets-English judgment Effect of decree in foreclosure suit in Ireland. A testator died domiciled in Ireland, and having English and Irish assets. There were English judgment debts, and a debt upon mortgage and covenant (registered in Ireland), upon which a decree had been obtained in a foreclosure suit there.

Held, first, that the assets must be administered according to the rules of the country of the domicile, and that the English judgments, being considered in Ireland as foreign judgments, only ranked as specialty-debts, and therefore had no priority over specialty-debts in Ireland. Secondly, that the decree in the Irish foreclosure suit was not in the nature of a judgment for the debt itself, and therefore that this debt and the English specialty debts must be paid pari passu out of the assets in Ireland and England.

This suit was instituted by the plaintiffs as specialty-creditors in Ireland of the testator, who was domiciled in Ireland at the time of his death, and left Irish and English assets for the administration of his

estate.

COURT OF APPEAL.

testator in Ireland, and their debt was further secured by a covenant, registered in Ireland. They had, in the lifetime of the testator, obtained a decree in a foreclosure suit there, which is a decree for payment of the debt, or, in default, for a sale. Default having been made, the mortgaged premises were sold, but the proceeds were insufficient to discharge their claim, and they therefore sought payment of the balance against his estate. They were the only specialty-creditors in Ireland, but there were also judgment-creditors in England.

Upon taking the accounts before his Honour's chief clerk, it appeared that his estate, which consisted almost entirely of rents due to the testator at the time of his death in respect of property in Ireland and England (of which he was tenant for life), was insufficient to pay the plaintiffs and the judgment-creditors in England in full.

A question therefore arose as to the order in which the two classes of creditors should rank, and as to the mode in which the English and Irish assets should be distributed between them, having regard to the fact of the testator being domiciled in Ireland at the time of his death; the plaintiff's contending that they were entitled to have the whole of the testator's assets applied in payment of their debt, in priority of the other creditors.

R. Palmer, Q.C., and Borill, for the plaintiffs, contended that the administration of the testator's estate must be regulated by the rules of the country of his domicile: (Wms. Exors. 1197, and cases there referred to; Thomson v. Advocate-General, 12 Cl. & Fin. 1; Price v. Dewhirst, 4 M. & Cr. 76; Sims v. Thomas, Longfield & T. 19.) The plaintiff's debt was established on a judgment-debt, by the decree in the foreclosure in Ireland, which had the effect of a judgment at law for payment of the debt: (Duke of Beaufort v. Phillips, 1 De G. & Sm. 321.)

The judgment-creditors in England were only entitled to rank as simple contract-creditors in Ireland, the judgments of the English courts being, as foreign judgments, not recognised there: (Smith v. Nicholls, 5 Bing. N. C. 208; Bank of Australasia v. Harding, 19 L. J. 345, C. P.; Ottway v. Ramsay, 4 B. & Cr. 414; and see Harris v. Saunders, Ib., note; Hall v. Odbur, 11 East, 24; Walker v. Witter, 1 Doug. 1; Carlton's Law of Judgments in Ireland, 211; Balfour v. Scott, 6 Bro. P. C. 550; Story's Equity Juris. 774, s. 524: Boullenois' Traité des Lois, 685.)

Goldsmid, for the English judgment-creditors, contended that, though the domicile regulated the administration of the estate as between next of kin, the rule was not so as regarded creditors, and that the assets in England were primarily liable to the payment of the English judgment-creditors. If the executor had been sued here by an English specialtycreditor, a judgment-debt in Ireland would have been no bar to the action; but, in any event, the English creditors were entitled to payment pari passu with Irish specialty-creditors; and that the plaintiffs' debt was not entitled to rank as a judgment-debt by virtue of the decree in the foreclosure suit. He cited Story's Conflict of Laws, 524, 546; Preston v. Lord Melville, 8 Cl. & F. 1.

Feb. 20.-The MASTER of the ROLLS.-His opinion was that the assets must be administered between the creditors according to their priority by the law of Ireland, where it was admitted the testator was domiciled at the time of his decease; and that the creditors who had obtained judgment in England were not entitled in the distribution of such assets to stand as judgment-creditors, but only as specialtycreditors upon bond or covenant. But with respect to the other question, whether the plaintiffs were entitled to priority over them by virtue of the decree obtained by them in the foreclo ure suit in Ireland, he should reserve his judgment, to enable him to make inquiries as to the effect of a decree in a foreclosure suit in Ireland.

Feb. 22.-His HONOUR was of opinion that the decree in the foreclosure suit in Ireland was not a decree for the payment of the mortgage-debt. If the decree had been in the English form, no question could have arisen, because that only bars the equity of redemption, and does not enable the plaintiff to obtain payment of his debt. The decree in Ireland is in a different form, being a decree for sale in the alternative of nonpayment. But he had ascertained that it is considered in the same light as a foreclosure decree here is, viz. not as a decree for the payment of the money; and attempts which have been made to register such a decree as a judgment for the amount had failed. He was therefore of opinion that the plaintiffs ranked as specialty-creditors only, and, consequently, were only entitled to be paid pari passu with the other specialty-debts found by the Master's certificate.

COURT OF APPEAL IN CHANCERY. Reported by OWEN DAVIES TUDOR, Esq. of the Middle Temple, Barrister-at-Law. Thursday, March 16.

In the Estate of J. H. KEOGн, deceased.