Russell. It is desirable that as many defendants as ROLLS COURT. Dec. 23, and Jan. 28. bill at time of selllement. The solicitor of a mortgagee of property contracted to vember, to complete the contract, objections were made to the bill of costs, and several items were pointed out which were alleged to be excessive, whereupon Mr. Harrison offered to take off 61.; but this offer not being acceded to, he refused to allow the contract to be completed unless the whole bill was paid. Mr. Wyckham accordingly paid the bill in full, but under protest," intimating that he would apply to the Court to have it taxed; and he now presented a petition for that purpose. The petition alleged that though ten guineas had been charged as the costs of the action, yet attendances, &c. in respect thereof were charged for besides; that there were charges for receiving the interest on the mortgage, for which, with other like charges of the solicitor as against the mortgagee, Mr. Wyckham was not liable; and that there were several other overcharges, as well as wrong charges, such as those for examining abstracts and conditions of sale, &c.; and several of these were specified. The payment "under protest was also relied on; and it was alleged that, inasmuch as Mr. Wyckham could not obtain the delivery of the necessary papers, &c. to enable him to complete the contract, nor the concurrence of the mortgagees in the conveyance to the purchasers, payment of the bill was, under such circumstances, made under pressure, and to avoid the great inconvenience of the non-completion of the sale. Roupell, Heathfield, and Elmsley, for the petitioner, insisted that there was such a state of circumstances on the 5th of November as amounted to pressure; that there were items improperly charged, such as for the attendances, &c. in the action, which were payable by the mortgagee himself; that there were many overcharges, which were unreasonable in themselves, and that the bill was paid under protest. They cited Re Wells, 14 Law J. 215, as a case of a similar kind. ify them in applying to Parliament, and they "although I voted for proceeding with the bill, I voted er had a prospect of being enabled to carry for it under an impression which by a fraud you have the scheme for which they had collected sub-produced, and therefore I am not at all bound by the ptions, and that they knew that at a very vote I there gave, authorising you to proceed, that y period; notwithstanding which, they repre- vote being obtained by your misconduct.' The mere ced that their subscriptions were full, and in- allegation that they constituted part of the majority, ed, therefore, persons to become members of the cannot possibly amount to that connection with the ected company upon a representation which the breach of trust imputed to the defendants which ctors themselves knew to be false. The plaintiffs would prevent them from complaining of the conduct 1, after stating the mode in which the directors of the defendants. resented the money subscribed to be greater than These are the only two parts of the bill which eally was, charge, "That no shares or certificates appear to me to distinguish this case from the other hares," &c. [His Lordship read the passage from cases which have been decided, and in which it has bill down to the words refuse to discount the been held that a bill may be maintained by certain e."] It states, therefore, that in order to make shareholders on behalf of others. I am therefore of the number required by the rules of Parliament, opinion, that the judgment of Vice-Chancellor Knight cain shares were represented as having been taken Bruce was correct, and that this appeal must be disby certain parties who, however, were not really missed with costs. reholders, who never paid their subscriptions, never e, in fact, shareholders, for the purpose of filling up number required by the rules of the House of Com1s. Then it is said that these 955 persons ought be defendants, because their case is not a case imon with the plaintiffs. They must have lent mselves to the transaction improperly carried on the defendants in this cause; therefore, they are ties to the breach of trust, and if they have any erest, of course they could not be made parties h those who are represented by the plaintiffs complaining of the breach of trust. That uld undoubtedly create a very material diffity if it stood merely on the allegation that Costs-Taxation-Protest-Overcharges-Payment of h 955 shares had been so ostensibly allotted, if y had not been taken up by other persons; but en comes the allegation that the plaintiffs are ig rant who they are, but that the defendants know so they are, and can discover their names. It is t disputed that, in an ordinary case, the allegation it plaintiff cannot discover the names of parties inrested, is an excuse for not making them parties; so at a demurrer for not making them parties cannot sustained, because, if that allegation be true (and must be taken to be true), it would be compelling e plaintiffs to do that which by possibility they innot do. Then, it is said that that statement canot by possibility be true, because the parliamentary" ontract would shew who the parties were. You innot, however, challenge the truth of the allegation n demurrer, and it stands there admitted to be true. f it be admitted to be true, there is no case on the art of the defendants to complain that those 955 ersons are not parties to the suit. The other case is retty much of the same character, though not accompanied by the same allegation; it states that, according to what was required by Parliament at a certain time during the last session, a meeting was This was a petition by Mr. E. Wyckham, a trustee called of the company to consider whether they would appointed under the will of Mr. Thomas Parlabean, go on with the speculation or not; and then the bill for the taxation of the bill of costs of Mr. Harrison, for that purpose alleges such a meeting, and states which had been paid by Mr. Wyckham, "under prothat plaintiff and numerous other shareholders of the test." It appeared that Mr. Parlabean being the company, &c. (His Lordship read the passage from owner of certain real estates, had made two separate the bill down to the words "purchased by them.") mortgages, one to Messrs. Moore and Mallows, and So far as the defendants may themselves have pur- the other to Mr. Moss; and the interest payable on the The MASTER of the ROLLS.-An erroneous notion chased shares, and so entitled them to a larger in- former having fallen into arrear, an action was brought seems to prevail, that in a transaction in which a bill fluence at the meeting than they were entitled to in by Messrs. M. and M. to recover the amount due to of costs happens to be required to be, and is paid, it respect of the shares they actually held, it is merely them. An arrangement was thereupon entered into is only necessary to protest at the time of payment, an allegation affecting the conduct of the defendants whereby Mr. Parlabean agreed to sell the property and then afterwards, if possible, to find out some themselves; but they say that the other persons by auction and pay off the mortgages, &c.; and to overcharges in the bill, to acquire a right to have it became invested with the shares for this purpose; facilitate the sale and encourage competition, it was taxed; but a mere protest of itself has no operation, and the objection stated on the demurrer is, that the thereby stipulated that in the particulars of sale no amounting as it does merely to an expression of dismajority—that is, all those who constituted the ma- notice should be taken of the mortgages; that the satisfaction with the charges. Another erroneous jority ought to have been parties to the suit, upon particulars and reserved biddings should be submitted notion seems to be, that if a solicitor insists on being the ground that they were parties to authorising the to Mr. Harrison, the solicitor of the mortgagees, for paid more than he is entitled to, and the party charged defendants to proceed; and, therefore, they cannot his approval; and that the mortgagees, on being thinks fit to pay the full demand, accompanying the now insist that the defendants were wrong in pro- paid off, should reconvey the premises to Mr. Parla- payment with an intimation that he will afterwards ceeding and one of the objects of the bill is to bean, for the purpose of enabling him to complete apply to have the bill taxed, he may, on application have disallowed as against the defendants sums of the sale. It was also agreed that the action should to the Court, obtain an order for that purpose; but money expended by them in the proceedings subse- be stayed, and ten guineas should be paid and accepted the Court will not, on that ground alone, disturb the quent to a certain period, which would include the in lieu of the costs thereof. The property was ac- payment. But the main objection is that in reference period after this meeting. Now, in order to make cordingly put up to sale by auction, but not being dis- to the charges in the bill, which it is alleged the solithat an objection, it must be shewn that this allega- posed of, it was sold by private contract in March citor ought not to have charged against the mortgation alleges that which would constitute a deference and April 1846. On the 14th of August following, gor; and as to this, the petition is altogether mison the part of the defendants against a claim made by and before the completion of the contract, Mr. Par- conceived, for it proceeds on the notion that the any part of that majority. It may be, no doubt, labean died, having by his will, dated in May, 1846, mortgagor, having settled with the mortgagee and that a case may be ultimately established on the appointed Mr. Wyckham his executor and trustee, paid his solicitor's bill of costs, is entitled to tax that part of the defendants, shewing that some persons to complete the sale. The title having been investi- bill, which is made out as between the solicitor and who are now associated with the plaintiffs, as being gated, arrangements were made for a meeting of all the mortgagee, as if it was a bill of costs between represented by them, may have been parties to the parties on the 5th of November, 1846, to complete the solicitor and the mortgagor; but that is not the breach of trust, parties to the misconduct, and there- the contract. On the 16th of October, Mr. Harrison, rule. If in Re Wells any such proposition was laid fore disabled from complaining of what the defendants as solicitor for both mortgagees, sent his bill of costs down as that if a bill of costs is delivered a fortnight have done. If that should be made out hereafter, it up to that time to Mr. Lloyd, formerly the solicitor of before the transaction in respect of which it is inmay create a considerable difficulty in the plaintiffs Mr. Parlabean, and then the agent of Messrs. curred is to be settled, with full opportunity to proceeding, associated with those who themselves Jaques and Edwards, the solicitors of Mr. Wyck- examine all the items, and at the time of settlement have sanctioned the breach of trust complained of. ham, and Mr. Lloyd transmitted it to Messrs. no notice is taken of the items in the bill, the party But that is not now the question. The question is, Jaques and Edwards. This bill amounted to 651. 12s. is entitled to taxation,-if any such a proposition whether there is, on the face of the bill, such conduct but being incomplete, a supplementary bill was de was laid down in Re Wells, then that case was as imputed to any of those, the plaintiffs, or those livered to Mr. Lloyd on the 4th of November, the wrongly decided; but if it was there decided that, if represented by the plaintiffs, which amounts to a day before the day of the intended meeting, amounting a bill of costs is for the first time produced at the breach of trust, and which therefore would be a de- to sl. 8s. 6d. making in all the sum of 741. Os. 6d. time of settlement, and a request is made for an opfence by these defendants against the person so suing. On the 20th of October, Messrs. Jaques and Ed-portunity to examine it, and it is refused, the party This allegation does not do that; it is quite consistent wards wrote to Mr. Harrison to say that the charges is entitled to taxation, then the case of Re Wells was that persons may have been members of that majo-in the bill were excessive, and if, at the meeting to rightly decided; and I do not think I was wrong in rity, and have voted for proceeding with the bill, but complete, he insisted on payment without taxation making the order in that case. This case, however, voted according to the allegation of the bill, under a afterwards, it would be made "under protest," with was ultimately made to rest on the fact of there being misrepresentation made by the defendants, and there- a view to taxation, as Mr. Wyckham was only overcharges in the bill; but that is not sufficient, and fore, under circumstances which enabled them to say, a trustee. The parties having met on the 5th of No- I must dismiss the petition with costs. Kindersley, and G. L. Russell, contrà.-The payment " under protest" makes no difference unless it is accompanied with special circumstances, such as the production of the bill at the time when the parties are met to complete the transaction, without any opportunity having been given previously, or being then Held, that the bill was not liable to be taxed. given, to examine it; but in this case the bill was Protest," at the time of payment of a bill of costs, delivered nearly three weeks before the day of meetmeans merely that the party is dissatisfied, and willing, and during that time Mr. Wyckham might have apply to have the bill taxed; but the party does not obtained the common order to tax, if he had reason to thereby acquire or reserve to himself any right to find fault with the bill. Then as to overcharges, even have it taxed, unless there are special circumstances. if any such there are, they form no valid ground for Where the mortgagor, or his trustee, pays the bill of obtaining an order to tax after payment; and as to costs of the mortgagee's solicitor, he can only have it those items for which it is alleged the mortgagee and taxed afterwards in the same manner, and on the not the petitioner is liable, it is a mistake to suppose same footing, as the mortgagee himself could have that the mortgagor can tax the bill of the mortgagee's done before payment. solicitor after payment on any other terms than those on which the mortgagee himself could have done. Such is the true construction of the provisions of the 38th section of the Solicitors Act. It is not denied but that the items complained of are proper as between the solicitor and his clients, the mortgagees; they are so, therefore, as between the solicitor and the mortgagor. Tuesday, January 26. Re SAVARY. irregularity. Where a solicitor has introduced his bills of costs into the accounts of cestui que trusts made up for their trustee, but neither cash account nor bill of costs has been delivered, it is irregular to obtain an order of course for taxation; it ought to be an order on special petition. Solomon Savary, the petitioner in this case, acted as solicitor for Thomas John Savary and another, who were the executors and trustees under a will of a deceased testator. The petitioner had acted for the testator, and continued to act also for the executors, and at their request made out the accounts of the different cestui que trusts, legatees under the will, as between them and the executors; and in those accounts he inserted his costs and charges thereby incurred. These accounts being accepted by the trustees, and a settlement being made on that footing, the petitioner alleged he considered that to be a settlement not only as between the trustees and cestui que trusts, but as between the trustees and their solicitor. The petitioner, however, having afterwards delivered his bills of costs and a cash account, the trustees applied for and obtained the common order to tax, without saying anything about the alleged agreement or settlement; and this order the petitioner now applied to the Court to discharge for irregularity. It appeared there were nine bills of costs in all delivered, two of which were for business done in the testator's lifetime, and of the other seven two were in respect of those charges inserted in the legatees' accounts, which were alleged to have been thereby settled, and the other five it was not denied were liable to be taxed. Turner and Willcock, for the petitioner. Kindersley and Bates, contrà.-The account was only that between the trustees and the legatees, the cestui que trusts; and the object of this petition is to treat them as if between the trustees and their solicitor. The solicitor says, I introduced my bills of costs into the accounts between the trustees and the legatees, and that amounts to a settlement with me, though neither a bill of costs nor cash account was then delivered. But it is only now for the first time that either the one or the other was asked; and therefore now for the first time the question of a settlement with the solicitor arises. [The MASTER of the ROLLS.-The question is, whether after what has passed, an order of course is the proper order. They employed the solicitor to make out the accounts of the estate, and he inserted therein his bills of costs, and the trustees accepted that; and the question is, would the order have been granted had this been mentioned?] The order is right as to five of the bills at all events; and the question is, whether as to the other two there are such special circumstances as to preclude an order of course. There is no allegation that payment was made to the petitioner on account of the bills of costs, and it does not appear that the whole sum is not due to him still. this case. Monday, March 22. A party LING . COLMAN. cause she might have to make good some of the trust- VICE-CHANCELLOR OF ENGLAND'S fund out of her share. COURT. GARCHES v. WARNER. John Ling, the testator in the cause, gave the interest for life of a sum of money to his wife, and all the rest of his property he bequeathed to his three. children when they came of age. By a codicil he | Will-Construction-Presumed marriage-Children— authorised Messrs. Theobald and Colman his execuPresumption of death after lapse of time. tors and trustees to carry on his trade, but there Where a testator speaks of a certain class as the was no provision for the appointment of new trus- children of his brother W. B. to each of whom he tees. The testator having died, the money, as directed, gives a benefit under his will, and many years hate was appropriated to the widow for life; and she, with elapsed since the testator's death, and part of the Theobald, one of the trustees (the other consenting), fund has been paid to them as they respectively arcarried on the testator's business till the bankruptcy rived at the proper age for receiving the same, the of Theobald. Afterwards she and Boardman, who Court will not direct an issue to try the validity of had been appointed at the request of the widow and the marriage of W. B. But where one of the children family, and with the consent of Colman, continued has not been heard of for a very considerable time, if the business till November 1839, when Boardman will direct an inquiry as to when and where he died. died; and thereupon Balls was in like manner ap- Samuel Buckle, of Peterborough, by his will bearpointed and continued to act till the month of March, ing date the 29th of May, 1813, gave and bequeathed 1845, when he died. While Theobald was carrying unto Henry Freeman, sen. Charles Warner and George on the business, he became indebted to the testator's Platel, his executors and trustees of his will, in trust estate, with the consent of the widow, to a considera- for his brother William Buckle, the sum of 10,0001. ble amount; and it was alleged by the bill that Colby twenty equal half yearly payments, but in case of man himself had been indebted to the testator, and the death of the said W. Buckle, before all the still was to the estate. The residuary legatees having, said payments should become due, then the testator under these circumstances, filed their bill for the directed the remainder thereof to be placed out general administration of the testator's estate, and at interest by his executors, such interest to be paid for an account, he, by his answer, objected that the to the said W. Buckle's children till they rerepresentatives of Boardman and Balls (who, he al- spectively attained the age of twenty-one years, and leged, were trustees) were not made parties, and also then such principal to be divided amongst them that the widow was not made a party; and the cause equally, share and share alike. was now set down to be argued on that one point of parties. W. Buckle, the testator's brother, survived him, and died on the very day on which the third payment became due, he having received the two previous payments, leaving five children, a son and four daughters, surviving. The son was bound an apprentice to a trade, but was never heard of since the year 1816. Mr. George Platel, a solicitor, and one of the trustees, managed the whole affair of the trusts, and at different periods between the years 1823 and 1833, procured releases from the daughters of W. Buckle on their severally attaining their ages of twenty-one, in respect of one-fifth share each, to which he stated them to be entitled under the will. Several of them having since married, they, in conjunction with their husbands, filed their bill in this present suit for the purpose of having it declared that the releases so executed by them, on the statements of the defendant Platel, were receipts only for so much as they actually received, and not to all that they were entitled to under the will. Kindersley and Selwyn, for the plainiffs, contended that Boardman and Balls were not trustees, but only the defendants agents: they were not necessary parties. It was said that Balls took upon him to act as trustee and executor; but even so, the plaintiffs were not obliged to resort to him, but only to the defendant, for an account. The widow had no interest, for her legacy was duly appropriated to her. Chandless, contrà.-Boardman and Balls must be considered as trustees appointed by the will, and though there was no power therein to appoint trustees, yet if the parties assent to the appointment, it cannot be considered invalid afterwards. Now the widow and family requested Colman, and he consented, to appoint both the one and the other of the parties in question, and they were treated as trustees and executors of the will. Colman was ignorant of the money being taken by Theobald, and of all the matters connected with the carrying on of the busi- The defendant, by his answer, stated as his reason ness; and it is essential to have before the Court the for not dividing the fund in fourths instead of fifths, representatives of the deceased trustees because a that there was no evidence to shew the death of the general administration is asked, and not the making son, to whose representative or some person capable good a particular breach of trust. (Skiplon v. Raw-of giving a legal discharge, he and his co-trustees lins, 4 Hare, 619; Biggs v. Penn, 4 Hare, 469; Hall v. Austin, 10 Jur. 452.) The objections are, not that Boardman and Balls were agents, but that they were trustees and ought to be represented in this suit; nor that the widow ought to be here on account of her legacy not being set apart; but because if Colman should be made answerable for the loss to the testator's estate, the widow's life interest in the sum bequeathed to her should be applied to indemnify him. were willing to pay the share to which, on attaining twenty-one, he was entitled. He believed, subject to doubts which were entertained by himself and one of his co-trustees, that the plaintiffs were the four legitimate children of W. Buckle, but no certificate of his marriage had been produced. The answer, however, as the plaintiffs alleged, admitted that on attaining twenty-one the plaintiffs thereupon became entitled to their respective shares in the 8,500l. the residue of the legacy. Bethell and G. L. Russell, for the plaintiff, contended that this last admission was, with the whole tenour of the answer, directly incompatible with the releases, which were unconditional and operated as receipts for the whole shares due; whereas it was said on the defendant's behalf that he always intended to act fairly, and had supported the plaintiffs in their infancy. But in the doubtful condition in which the matters connected with the trusts stood, it was impossible for him to act otherwise. O. Anderton and Selwyn, contrà. Kinglake for another party. Turner, in reply.-The real question is whether, these facts stated in the petition had been stated to the officer, he would have made the order of course. The MASTER of the ROLLS said he was disposed to think that the order was not regular. The MASTER of the ROLLS.-Mr. Colman is applying for an order of course is bound to state placed in a condition of considerable hardship, if the everything bearing upon the subject, and to disclose statement which has been made be true, for he has all the circumstances, and that had not been done in permitted the widow and family to do what was most The question was, how far such accept-in conformity with their own wishes. But then he had ance by the trustee as was alleged in the petition was a duty to perform, and he was executor for various to be considered as equivalent to payment of the bill. purposes, and had a discretion as to carrying on the On the whole, he was of opinion that he must dis-trade. Was he to make arrangements to free himself charge the order without costs as to the two bills, from liability and leave the cestui que trusts with such the items of which had been inserted in the accounts remedies as they might have against the debtors to of the estate, but with liberty to present a petition as the estate? Certainly not; he was responsible, and to them if they wished. the business was under his general superintendence, -or, at all events, he seems to have known what was doing. The business was therefore carried on in his The VICE-CHANCELLOR said, that he was of opibehalf, and by persons whom he intrusted for that nion that as there was no fact, except the want of a purpose. The testator intrusted Theobald, and not certificate, to throw any doubt upon the marriage of the widow; but Mr. Colman did trust the widow, con- W. Buckle, supposing an issue were directed to A testator having directed his business to be carried on trary to the intention of the testator. On the bank-prove that fact, the jury having before them the cirby his trustees for the benefit of his family, his ruptcy of Theobald, Boardman was taken in at the cumstance that the testator spoke of the plaintiffs as widow and one of the trustees carried it on with the suggestion of Mrs. Ling; but did the testator say If the children of W. Buckle, and payments having permission of the other; but the acting trustee having you make the arrangement at the request of the been made to them in that character, the jury would become bankrupt, two other persons were successively family, you are not responsible? No. Therefore most probably come to the conclusion that they were appointed to assist the widow to carry on the busi-Boardman only acted under the authority of Mr. his legitimate children; and the doubt thrown out, ness, the other trustee consenting, but taking no part Colman, and so also did Balls. I cannot consider therefore, was rather ingenious than otherwise. in the business. The bankrupt had, with the con- them as substituted trustees by the testator. As to Moreover, if there did exist any doubt upon the matcurrence of the widow, withdrawn money from the the general account the representatives of an executor ter, it was somewhat singular that the residuary testator's estate, and applied it to his own use. The cannot be dispensed with; but here you have a person legatees did not raise it. He thought, therefore, parties interested under the will filed a bill against appointed by the testator, and the bill asks an account that there was no real doubt upon the subject, and no the other trustee for the general administration of of what was received by him or for his use, or by his enquiry on that head ought to be directed. But with the testator's estate, and an account. An objec-authority. The widow, it is said, has concurred in regard to the son, there must be an enquiry as to tion was taken to the frame of the bill for want of the misapplication of the money; and if so, she may whether he survived the testator, and when and where parties, because the representatives of the persons he died. Upon the construction of the will it was who had acted in the management of the business clear that the whole fund left unpaid at the death were not made parties. But it was held that they of W. Buckle belonged substantially to his chilwere only agents of the trustee with whose consent dren, and ought to have been laid out at interest they were appointed, and were not, therefore, necesuntil they attained twenty-one. sary parties. The widow was left by the will a certain sum of money, which was appropriated to her, and it was unsuccessfully objected that she ought to be made a party be therefore be responsible, and Colman may file a bill Reserve costs. VICE-CHANCELLOR KNIGHT Feb. 25 and March 5. A testator gave his real estate to trustees, upon trust to I not in terms call the gift of the personal estate "residuary," or the gift of a residue, ought, upon the question of exoneration, to be deemed of weight on either side, may perhaps be questionable. It has, however, been judicially said that a testator's acquaintance with the law is to be presumed; and certainly it is very plain that whatever this testator's right of arranging the order and mode in which the different portions of his property should, as between themselves, be applied, it was beyond his power to except his personal estate from liability to his creditors at least, if not from that and other liabilities; and beyond his power also to prevent his executors from acquiring the property in it, or to enable T. Robins, without their assent, or the assistance of a court of equity, to obtain any benefit from it. A testator also, knowing the law, would know the difference between legal and equitable assets. need not say whether, independently of authority, L should have thought it right, or probably right, to treat the instrument before me as exhibiting an intention of excluding the personal estate from the debts; but the question of exoneration has arisen on so many wills, has presented itself in such a variety of forms and circumstances, and is so ancient and almost so familiar a grievance of the Court, that authority upon it is abundant. The accumulation, indeed, of cases, with the different views taken by different judges of the nature and effect of particular phrases or provisions, has tended, I suppose of necessity, to embarrass the question; and this must probably be thought somewhat an unruly quarter of the law. On the whole, however, some principles of interpretation with re ference to the point under consideration have been finally recognised and established, which, whenever the point arises, are to be kept in view, and not intentionally abandoned. But still, with reference to the true construction and effect of such a will as this, the authorities cannot, I think, be represented as uniform or harmonious; and I have had, therefore, to consider whether those against or those for the plaintiff, as the testator's heir, preponderate. The reported cases more or less directly in point, which have been decided within the last 150 years, would, extracted from the many volumes. containing them, and collected, form together, I do not say a great evil, but a great book. It appeared to me on this occasion that I might content myself, in addition to Bootle v. Blundell, with consulting particularly Lord Inchinquin v. French, Ambl. 33; 1 Wils. 83; Duke of Ancaster v. Mayer, 1 Bro. C. C. 454; Webb v. Jones, 2 Bro. C. C. 60; Burton v. Knowlton, 3 Ves. 107; Brummel v. Prothero, 3 Ves. 111; Brydges v. Phillips, 6 Ves. 567; M'Cleland v. Shaw, 2 Sch. & Lef. 558; Watson v. Brickwood, 9 Ves. 447; Tower v. Lord Rous, 18 Ves. 132; Greene v. Greene, 4 Madd. 148; Michell v. Michell, 5 Madd. 69; Driver v. Ferrand, 1 Russ. & Myl. 681; Blount v. Hipkins, 7 Sim. 43; and Lamphier v. Despard, 2 Dr. & War. 59. Having done this, and having done so with the conviction that I should be in error were I to depart from any principle or rule which, in the course of the judgment in Bootle v. Blundell, (a judgment containing various observations having, as I think, a particular bearing, as well as a bearing generally on the present case,) Lord Eldon recognized or laid down, I have arrived at the conclusion that the preponderance of authority is in favour of the heir on the point of exoneration. Among the propositions in the case I have just men tioned, stated by the great judge who decided it, are these:-"I can find no rule deducible," says Lord Eldon, "from all that has been said on the subject but this (which appears to be a rule supported by all the cases taken together), namely, that since it has been laid down that express words are not necessary to exempt the personal estate, there must be in the will that which is sometimes denominated evident demonstration, sometimes plain intention and necessary implication to operate that exemption." Thus much can be collected from the cases; but when you proceed further and inquire what it is that constitutes this evident demonstration, plain intention, or necessary implication, it does appear to me that Lord Alvanley is right when he says" You are not to rest on conjecture, but the mind of the judge must be convinced that he is deciding according to what the testator intended. The expression "necessary implication " is frequently applied to cases between a devisee and heir-at-law, and yet there is hardly a case decided against an heir-at-law where the implication upon which it was so decided was of absolute necessity. It is but a loose way of defining the expression to say that the intention must be so probable that the judge cannot suppose the contrary; and it seems strange to lay down as a rule that express words shall not be required, but yet that there must be expressions tatamount to express words. I take it that this is what will be found to be the result of all the cases-that the judge is in every instance to look at the whole of the will together, and then ask himself whether he is convinced that it was the testator's intention to exempt his personal estate. Many rules are clear and positive. First, it is certain that in equity as well as at law the personal estate is first halle, render material the question whether the real assets are equitable, and to this that a creditor may, after his debtor's death, be barred by delay as to this remedy against his personal estate, without being so against his real estate in certain circumstances; and it is to be recollected that what is now true of the real estate of all deceased debtors, was for more than five and twenty years, before 1833, true of the freehold estate of debtors who were at their deaths in trade. The particulars of the will here are soon stated. It is dated in 1845. All the real estate is devised to J. Robins and B. Robins, in trust to sell. The proceeds of the sale, and the rents in the meantime, are directed to be applied in the first place to pay and satisfy all debts due and owing from the tes. tator at the time of his decease to any person or persons whomsoever; and then to pay the trustees all costs, charges, and expenses attending the execution of the trusts thereby created, or in relation thereto; and then to pay to each of the two nieces of the testator, whom he names, 500l.; and then to invest 500l. of which he directs the interest to be paid to a third lady for life, and the capital to be, after her decease, paid to his godson, T. Robins, sou of one of the trustees. The will then proceeds and concludes in these words:-"And as, to, for, and concerning all and singular my ready moneys and securities for money to me belonging, and all other my personal estate and effects whatsoever, and wheresoever the same may be at the time of my decease, I give and bequeath unto my said godson, the said T. Robins, his executors, administrators, and assigns; I give and devise all estates vested in me on any trusts, or by way of mortgage, in fee, and which I have power to dispose of by this my will, with the appurtenances, unto the said J. Robins, and B. Robins, and to their heirs, executors, administrators, and assigns, according to the respective natures and legal qualities of the same estates, respectively, upon trust, to hold or dispose of the said trust estates, in the manner in which they ought to be held and disposed of, pursuant to the said trusts; and upon payment of the money secured on mortgage, to convey or assign the estates in mortgage to the person or persons entitled thereto for the time being; and it is my will, that the receipt in writing, of the said trustees or trustee, for the time being, acting under this my will, shall be sufficient discharges to all persons and purchasers for his, her, or their purchase, or other money or moneys, or for so much thereof as in such receipts shall be expressed, to be or to have been received without such purchaser or purchasers, or other person or persons being bound to see to the application, or answerable for the loss, misapplication, or non-application thereof, or any part thereof; and further, that it shall be lawful for the trustees or trustee, for the time being, acting under this my will, in the first place, to deduct and retain to themselves, and to allow to each other all loss, costs, charges, and expenses, they or he shall bear, or be put unto, in the execution of this my will, or in relation thereto; and that they, or either of them, shall not be answerable for the other or others of them, or for the heirs, executors, or administrators, acts, deeds, or defaults of the others, or any other of them, but each for his own acts, deeds, and defaults only; and that neither of them shall be answerable for any banker, broker, or other person, with whom or in whose hands any of the trust-moneys shall be deposited or placed; nor for any loss, damage, or misfortune, which may arise or happen in the execution of this my will, or in relation thereto, except the same shall arise or happen by or in conseThe VICE-CHANCELLOR.-Since the argument, I quence of his or their own wilful default. And lastly, have read attentively the will in this case, upon which I hereby nominate and appoint the said J. Robins two questions only were raised. As to one of them, and B. Robins executors of this my will, hereby I think that the will does not give to T. Robins, and revoking all former wills." Thus, therefore, it does not dispose of the surplus of the beneficial in- appears, that the devisees in trust are executors, terest in the produce of the testator's real estate after and are the only executors; that there is given to paying the charges which ought to be considered as the heir, the plaintiff in the cause, nothing, but imposed upon it, according to the true construction to his daughter, one of the testator's two nieces, of the instrument, and that this surplus, therefore, if the sum of 500.; that as to the beneficial interest any, belongs to the plaintiff, as the heir. The other in the produce of the real estate, there is an original question, that, namely, whether the real estate or the intestacy, not wholly, but partially at least, as it personal estate is the fund first applicable to the seems, without much or without any doubt to me; payment of the testator's debts (for the personal that there is one universal legatee of the personal estate has not been argued not to be the first fund estate; that he is neither the trustee nor an executor, for paying the funeral expenses, and the expenses of but is one of the four persons among whom the proving the will in the Ecclesiastical Court), has ap- beneficial interest in the produce of the real estate is peared to me one of more difficulty, and upon which given, so far as the testator has disposed of it; it had occurred to me to doubt whether a statute and that under the words, "all costs, charges, that relieves our laws from great discredit, I was and expenses attending the execution of the trust nearly saying scandal, the Act, namely, of 1833, the hereby created or in relation thereof," or the words, 3 & 4 Wm. 4, c. 104, ought not to have some influence, all loss, costs, charges, and expenses, they or he so as possibly to render a decision since the Act in shall bear or be put unto, in the execution of this my favour of the personal against the real estate right, will, or in relation thereto",-expressions in conwhich, before the Act, would have been erroneous. Istruing which attention ought to be given to the cannot, however, venture to say that in the present place in which they are found,-it is clear that the instance, at least, I ought so to view it; though, instrument does not in terms notice, does not excertainly, where a testator dies solvent, a charge of pressly refer to, any payment or deduction to be made his debts on his real estate by his will is at present of out of the personal estate. And it is, I suppose, little or no materiality, so far as his creditors are equally clear that the expenses of the funeral, and concerned, who need scarcely care whether the real the expenses of proving the will in the Ecclesiastical assets are legal or equitable, if they are in either case Court, are not charged on the real estate, or made sure of payment-a remark subject, of course, to this, payable out of its proceeds. Whether this circumthat the state of the property may be such as to stance-whether the fact that this particular will does Wigram and Prior for the plaintiff. JUDGMENT. EWSPAP coming insolvent, what necessity, he submitted, was there for this special application? If there was no doubt, why not proceed to take his evidence in the same manner as any other stranger. It must be clear that, from the absence of any direct authority, that the right to the leave now asked was open to considerable doubt. and that the amount of the personal estate, whatever it may be, makes no difference in the case. That was not, however, according to the old decisions, as I shall have occasion to point out to you presently. I take it to be certain also, that it is not enough for the testator to have charged his real estate with, or in any manner devoted it to, the payment of his debts; that the rule of con- The VICE-CHANCELLOR.-The facts of this case, struction is such as aims at finding not that the real as I understand them, are these.-John Fisher, the estate is charged, but that the personal estate is dis- plaintiff, filed a bill against Henry Fisher, for an accharged. Then on the question whether the personal count. J. Fisher, before the cause was at issue, estate is discharged or not, I apprehend it will be found became bankrupt, (a) and the assignees filed their bill, that the very same circumstances have, in the minds adopting the suit; and the defendant having put in of different judges, led to different conclusions, and his answer not disputing the bankruptcy, the cause this is the result to be drawn from the most diligent is at issue, and the plaintiffs are about to examine comparison of all the cases." And he afterwards their witnesses; and in that state of things a motion says:-"It is not by an intention to discharge the is now made by the assignees to be allowed to examine personal estate that the question is to be decided." the bankrupt, the sole plaintiff in the original suit, as Applying this test, or these tests, to the present will, witness in the cause. I will first consider the case and recollecting what has been determined in the cases which was cited of Hewitson v. Tookey, 2 Dick. and of which the authority is questioned, I am unable to Ewer v. Atkinson, 2 Cox. I think the question say that this testator's personal estate is not to be raised by this motion is one of mere form and subject to his debts in its ordinary course and common expense. The assignees had the liberty to adopt order; and here I may observe that the present Lord the bankrupt's suit, though not bound to do so, Chancellor, in a case before him in 1838, thus ex- as they might have passed it by and instituted an presses himself:-"We must presume that the tes-original suit by their then supplemental bill, in which tator was cognizant of the rule of law, and if he knew suit they might clearly have examined the bankrupt the law at all he must have known that he could not as a witness, saving all just exceptions; still, if the exonerate the personal estate from the burthen of his assignees thought proper to adopt the bankruptcy debts, unless he so expressed himself as to lead the suit, they must take the consequences and the risk of Court to the fair conclusion, from the language which doing so. But the question is, whether the exclusion he used, that such was the intention which he meant of the bankrupt's evidence is a consequence of adopting to express." It being clear that, upon those who the original suit by the assignees. That question allege a testator's personal estate not to be the first appears to me to resolve itself into the question, fund for paying his debts, lies the burthen of shewing whether the bankrupt at this time, and upon these that in so many words, or by expressions tantamount, pleadings, is, for any purpose, a party to the proceedhe has directed his personal estate not to be so, and ing. If he is, he cannot of course be examined as a that they must do more than bring his meaning into witness; if he is not, my opinion is that the bankrupt doubt. I do not find it possible, considering the state is a good witness for the plaintiff in the supplemental of the authorities, to declare that the legatee of the suit. Now, in considering whether he is a party or The personalty has, in the present instance, done this. I not, the first question is, is he liable to costs? must decide in the heir's favour, therefore, on both practice of the present day is, I believe, settled, that the points that have been argued; though my decision if the sole plaintiff becomes bankrupt, and the assignees would, I very much suspect, be altogether reversed do not adopt his suit by supplemental bill, the plainby the testator if he could sit in judgment on his will. tiff in the bankruptcy suit by supplemental bill may But as Lord Eldon, in a case I have several times dismiss it, but without costs. The cases upon the mentioned, said, "After all, the question is not what point appear to me to be Wheeler v. Malins, 4 Madd. the testator really meant, which can never be ascer- 171, and Huntingtower v. Sherborn, 5 Beav. 380. tained, but what he has authorised the Court to say This point was, in fact, admitted by the defendant's it is possible was his meaning." I declare that, as be- counsel; the bankrupt, therefore, does not appear to tween the real and personal estate, the personal estate me to remain a party to the suit for the answering of is primarily liable for the payment of debts. I reserve any demand with costs. Next, as to his interest: it the consideration of the question of costs. is admitted that all his interest in the suit, and all his liabilities, are transferred to the assignees, and the only remaining question is, does he remain or form a party, his name remaining upon the record in the original suit, and that all future orders and decrees will be entitled in the original suit? This is admitted; but that does not appear to me to answer the question. The original cause having been instituted by and in the name of the bankrupt, his name must of necessity VICE-CHANCELLOR WIGRAM'S COURT. April 21 and 22. FISHER . FISHER. Practice-Insolvency of sole plaintiff-Supplemental suit-Examination of insolvent plaintiff in supple-be used as a means of describing the original cause; but mental suit. An insolvent plaintiff cannot be examined as a witness in a supplemental suit filed by his assignees adopting the original suit, and continuing the name of the insolvent a party to the supplemental suit. The original plaintiff and defendant were attorneys. The suit was filed for an account of certain costs re the question remains, whether that original suit is not completely merged in the supplemental suit; and then the question is, whether the bankrupt has completed his bankruptcy quá bankrupt, as if the party had filed the original bill, although, for the purpose of describing the original suit, the name of the bankrupt will still be used. He will not be served with any proceived by the defendant, the plaintiff alleging that ceeding in the cause, nor in case of his death the parties from whom the defendant received the will his representative' be a necessary party to any ost for business done by him, were clients of the future proceedings. My conclusion, therefore, in plaintiff, and that the defendant had acted for them the absence of authority on this point, is, that as the agent of the plaintiff under power of attorney the bankrupt has ceased to be a party altogether, from him. During the progress of the suit and be- and that the assignees in truth have superseded the fore answer, the plaintiff took the benefit of the sta-original suit, and that nothing now remains but the tute for the relief of insolvent debtors, and obtained 8 an order protecting him from process under the 7 and Vict. c. 96; whereupon his assignees adopted the suit, and filed a supplemental bill. The defendant put in his answer denying the claim, and alleging that the connection as agent for the insolvent bad ceased when the business out of which the costs claimed was done, and that the business had been done by the defendant for the parties on his own account, and not as agent of the insolvent plaintiff; whereupon a replication was filed, and issue joined. James Russell and Sidney Smith now moved on behalf of the assignees for liberty to examine the insol; vent plaintiff as a witness in the cause, on the ground that he had no longer any interest in the suit, all his estate and interest being vested in his assignees, and cited Sharp v. Hallet, 2 Sim. & Stu. 496; Lord Huntingtower v. Sherborn, 5 Beav. 380: Ewer v. Atkinson, 2 Cox, 393; Motbeux v. Mackrett, 1 Ves. jun. 142; Benson v. Chester, Jacob, 577; Armiter v. Swinton, 1 Ambl. 393; Hewitson v. Tookey, 2 Dick. 799: Wheeler v. Malins, 4 Madd. 171; Edwards v. Goodwin, 10 Sim. 124. supplemental suit. I do not, however, mean to go beyond the cases before me, or to say what my opinion might be in some possible case of the bankruptcy being disputed. I had occasion to consider that fact in the case of Robertson v. Southgate, 5 Hare, 223. The question then remains, how far this case is affected by the decisions in Hewitson v. Tookey and Ewer v. Atkinson. In the former case Lord Kenyon made an order similar to the present, and the Lord Chancellor discharged it. I cannot but think, on reading the cases, that the Lord Chancellor did it upon the ground suggested by Mr. Dickens, that the bankrupt, remaining a party, is liable for the costs of the suit. With regard to the latter case of Ewer v. Atkinson, the facts are these: three persons had been in partnership, three filed a bill, the three afterwards became bankrupts, and the three having become bankrupts, an application was made by the assignees for leave to examine one of those three. Now the Master of the Rolls in that case, after observing that the bankrupt was clearly a good witness, ordered the original bill to be amended by strikng out the name of the bankrupt when the assignees desired to examine, and then ordered, upon that being done, the assignces should be at liberty to examine the bank Bagshawe, for the defendant, contended that there was no authority to shew that a bankrupt or insolvent plaintiff, on such an event, was no longer liable for costs, consequently the insolvent plaintiff must () The Vice-Chancellor throughout his judgment uses the term " still be considered a party to the suit in respect to mistake, the plaintiff being described by counsel as an insolbankrupt" in mentioning the plaintiff, through such a liability; and should it be made out that he vent, but holding an order in bankruptcy for protection was not so liable, and was no longer a party on be-gainst process under the stat. 7 & 8 Vict. c. 96, s. 1. rupt as a witness; in this case I observed the reporter says the Master of the Rolls thought it a more regular course to strike the name out. Now I do not think that the right of the assignees to examine the bankrupt can depend upon the question whether he was the sole bankrupt, or whether there were persons who were partners with him. If the plaintiffs were to amend the bill by striking out the name of this witness, in whatever form the misdescription may be, I think it is a mere question of form. These cases, in my opinion, do make a difference. Mr. Bagshawe argued that if the bankrupt were not a party, a special apIf I were to act plication would not be necessary. upon my own opinion, I should make the order, and Mr. Bagshawe's argument would not deter me from doing so in his trying to shew that a special application may not be necessary; but as no case has occurred in which the order has been made, although the case is one of common occurrence, I think the course I must take is not to make the order asked, because I consider I should be directly opposing the Lord Chancellor's order. It does not appear to me what the grounds of his decision were, or of the order of the Master of the Rolls. I advise an application to be made to the Lord Chancellor, both as to the substance and as to the costs, and I have not the slightest doubt he will make the order. I am quite satisfied from the authorities that he is a good witness, and therefore ought to be examined. The defendant is entitled to his costs. If I am wrong, he ought to pay the costs; if I am right, he will get his costs when he goes to the Lord Chancellor. Common Law Courts. COURT OF QUEEN'S BENCH, MCILLOP v. COOKE. Principal -Agent. Townsend moved for a rule nisi to set aside the nonsuit herein, and enter a verdict pursuant to leave. It was an action for goods sold and delivered. It appeared that six persons had joined to carry on a mine in 1843, which was discontinued in 1845, and the plaintiff was empowered to dispose of the plant and machinery, &c. The plaintiff was treasurer of the concern; he employed one Pritchard to sell it to the defendant, and the contract was made between them without any principal being named, but Pritchard stated he was agent. At the trial the plaintiff was nonsuited, because the other partners were not joined. It is submitted that here the plaintiff was the real principal, and the others were dormant partners whom it was now necessary to join. Cothay v. Fennell, 10 B. & C. 671; Skinner v. Stoiks, 4 B. & Ald. 437, Cur. ade. vult. were cited. On a subsequent day the Court granted a Rule nisi. SUTTON v. SWANWICK and ANOTHER. Notice of action-Materiality of time of imprisonment. Chilton, Q. C. moved for a rule nisi to set aside a nonsuit in this cause. It was an action against justices for false imprisonment, under a game conviction. At the trial a nonsuit was claimed for a defective notice of action. The notice stated was, "for that you, Thomas Sutton and Thomas Allen, on the 8th of September, assaulted and imprisoned the plaintiff, &c. in Chester Castle, and kept and detained him for a long space of time, to wit, 150 days next then following." It appeared, in fact, he was detained 154 days, and it was necessary to rely upon the imprisonment for the last four days to shew the action was brought within time. This was objected to, and the plaintiff was nonsuited. (Stringer v. Martin, 6 Esp.; Weston v. Fournier, 14 East, 491; Collins v. Rose, 5 M. & W. 196; Hardy v. Ryle, 9 B. & C. 603; Jones v. Bird, 5 B. & Ald. 844, were cited. [Lord DENMAN, C. J.-Were you not bound to state the time, so that the justices might know what amends to offer?] Here the plaintiff was discharged at the end of the 154 days by the order of the justices themselves. Cur. ade, vult. Upon a subsequent day the Court granted a Rule nisi. CHESSYRE v. AIRE. Evidence in reply. Godson, Q. C. moved for a rule nisi to set aside verdict for plaintiff. It was an action on a bill of exchange against the defendant as acceptor, and the question was whether it was forged or not. The plaintiff produced the bill, and a letter, not dated, and without a postmark, and called witnesses to the handwriting. Several witnesses stated it was not his handwriting, and one, being his confidential clerk, stated that the bill could not have been accepted by the defendant without his knowledge, and that he never accepted any bills. In reply, the plaintiff produced another bill in the same handwriting, and the defendant was not allowed to give evidence to shew that was also a forgery. There were also affidavits upon which the motion was made. Cur, adv. vult. On a subsequent day the Court granted a Rule nisi, T + MAY 15.] PARRATT V. LAMBERT. How far is an advertising agent entitled to recover ERLE, J.-The newspaper proprietors do not give Sittings after Hilary Term. Rule nisi. KIME U. EVERSHED. Malicious trespass-Notice of action. In an action against a person for arresting a trespasser under 7 & 8 Geo. 4, c. 30, the defendant is not entitled to notice of action unless he had reasonable ground for believing himself to be the servant, or acting under the authority of the owner. Therefore, that the jury found that the defendant acted bond fide in arresting the plaintiff, is not of itself suffi. Semble, it is not necessary for the defendant in such action to negative by evidence the application of the proviso in sec. 24. cient to entitle him to notice. THE LAW TIMES. was one for dilapidations JUDGMENT. -- April 17 and May 8. YATES v. FENTON. was Rule nisi. misconceived. action of The defence was Lord DENMAN, C. J.-This was an Money had and received-Sale of business. assault and false imprisonment. upon the 7 & 8 Geo. 4, c. 30, ss. 24 and 28. The ant's order, as a wilful and malicious trespasser, at a Knowles, Q.C. moved, pursuant to leave, for a rule plaintiff had been taken into custody by the defendto shew cause why the nonsuit in this case should not fendant was the attorney for the mortgagee of the house of which he himself was tenant. (a) The dehouse, and, seeing that the plaintiff was mounting a ladder, and was proceeding to take off the roof, he be set aside and a verdict be entered for the plaintiff authorized a policeman to arrest him, and take him for the sum of 1707. or 150l. as the Court might debefore a justice of the peace, who dismissed the termine. The action was for money had and recharge. When the plaintiff had closed his case, the ceived, and the defendant pleaded Never indebted. defendant claimed a nonsuit for want of proof of From the evidence it appeared that the plaintiff, in notice of action. The learned judge took the opinion the commencement of July 1845, had agreed to purtogether with the stock, fixtures, and fittings, for the of the jury whether the defendant acted bona fide in chase of the defendant a druggist's shop at Liverpool, sum of 300l. to be paid on or before the 20th of July, of August, 1501. more was paid on account. No apprehending the plaintiff, or whether the charge was colourable; and on their finding the act was bona fide, 1845. A deposit of 201. was paid down; on the 4th he directed a nonsuit, with leave to move for a rule to shew cause why the nonsuit should not be set aside, and the cause sent down again for trial. The more money being forthcoming, the defendant, on 41st section o' the Act, for the protection of parties in the 1st of September, gave the plaintiff notice that such action, and the cause thereof, one calendar paid before the 12th of September, he would resell the execution the Act, requires notice in writing of if the balance of the purchase-money should not be the servants of the defendant assisting him, and had month at least before the commencement of the for the best price he could obtain, and hold the plainparty who is acting in the execution of the Act, been let into possession of the shop about a fortnight, quitted possession. The defendant resumed possesaction. The defendant, however, is said not to be a tiff responsible for the loss. The plaintiff, who had The plaintiff because he was neither the owner of the house nor Trespass for false imprisonment. 1107. This action was then brought. At the trial had built several houses at Brighton, and had, some the owner's servant, nor acting by the owner's autho- taken about 40s. in money, which he kept, then time before the transaction in question, occupied one rity in arresting the plaintiff; good reasons unof them himself. He had, however, mortgaged this doubtedly why the party so arresting should not be sion, the shop was kept open by him until the folinto possession, this action and other property, had for some months left the justified under the Act, but not an answer sufficient lowing March, and was then sold to one Lyell for place, and in his absence the mortgagee had obtained for dispensing with the notice requisite for the pro- the defence was, that as the plaintiff had been let possession. Plaintiff on his return took some work- tection of those who assume to carry the Act into the whole time. The defendant, by selling, put it men with him and commenced knocking down the execution. Thus in Cann v. Clipperton, where an out of his power ever to give the plaintiff the stipuroof and outer wall of the house, asserting that he did attorney had commenced an action and directed the [WIGHTMAN, J.-Had the plaintiff unqualified so to make some alterations in it. The defendant, apprehension of a person injuring the property of his possession?] No; there was a man in possession who was and had acted as the mortgagee's attorney, client, the jury having found the defendant acted as and who as such had carried on some negotiations the owner's servant and bona fide, but the apprelated consideration for his money. He might have respecting the house in question, after having first hension was not warranted by the statute, the judge sued the plaintiff for a breach of the agreement. conferred with the clerk to the magistrates, came to reserved leave to move to enter a nonsuit, because no tract.] We assented to the rescision, and then the spot with a policeman, and the policeman, by de-notice had been given, and this the Court held the [ERLE, J.-How is it that these chattels did not fendant's authority, took the plaintiff in custody. He defendant to be entitled to. That case is like the pass?] They were never delivered: a qualified prowas taken before a magistrate, and charged with a present one in its circumstances. Again, the Court of Perty only passed. [ERLE, J.-The property passed, malicious injury to the house, under the Malicious Exchequer held the servant of the owner of a subject to a lien, and a power to rescind the conmakes the rescision complete. (Greville v. Da Trespass Act. The magistrates dismissed the charge. fishery to Cur. adv. vult. On these facts being proved, the defendant claimed rested the plaintiff, though not trespassing within brought our action. [WIGHTMAN, J.-Can one Rule nisi. a nonsuit, on the ground that no notice of action had the limits of the fishery, and therefore wholly party rescind?] He can do what in him lies to reOn a subsequent day the Court granted a been given. Alderson, B. took the opinion of the beyond the jurisdiction, when he believed the plain-scind; and the subsequent assent of the other party jury whether the defendant had acted bona fide in tiff to be within the jurisdiction. In a former case apprehending the plaintiff, and the jury found that it of Hopkins v. Crowe, 4 A. & E., I refused to ask the Costa, Peake, Ad. Ca. 113; Palmer v. Temple, 9 A. was bona fide, upon which the plaintiff was nonsuited, jury whether the defendant acted bond fide, inasmuch & E. 308.) A rule nisi was accordingly as he did not know the owner of the house was emwith leave to move. obtained, and also on the ground that the jury should powered by the Act then in question to take the parhave been asked whether the plaintiff was within the ties into custody. These cases seem to draw the proviso of sec. 24, which excludes from the operation of distinction that a general presumption that the the Act any case where the party trespassing acts defendant had the power he claimed to exercise, under a fair and reasonable supposition that he had a would not entitle him to have notice. right to do the act complained of. There was also a Cann v. Clipperton, the defendant was found to bona fide; and in Hopkins v. Crowe the defendant point as to the defendant, being the servant of the have acted as the client's servant, and to have acted But in the present could not have supposed himself to be the owner of the house, and the Act did not give him any power, as the servant of the owner, to arrest. case, the jury were asked whether the defendant acted bona fide, or whether they believed he appeared to have been acting maliciously and culpably, no question being put to them as to his being either a servant in the house, or having the authority of the mortgagee, or in respect of believing himself to be in either of those positions. Now, if this mode of putting the question were held sufficient, numerous cases which require the defendant to believe him. self not only legally, but reasonably, justified, must be overruled. Generally, bona fides, or rather the opposite, the absence of mala fides, will lead to the use of caution in the proceedings. As we have, on such occasions expressed our opinion, it is necessary for the defendant to shew, not merely a vague opinion of having the power, but a reasonable conviction that he is enforcing and carrying out the provisions of the law, in the question was left to the jury by the learned judge committing the grievance complained of. We think imperfectly; and that they should have been asked, not only as to the bona fides of the present defendant, Rule absolute. but as to the reasonable belief that he was the ser vant of, or had the authority of, the mortgagee, and that the rule for a new trial must be made absolute. Owner. Creasy (Feb. 12) shewed cause.-The plaintiff was not within the proviso. The mortgagor out of possession can have no right to enter by force while persons are in the house, as was recently decided with respect to the right to abate a nuisance. [Lord DENMAN, C. J.-It may be necessary to negative the proviso in a conviction, but not in an action like the Then it is said that the defendant was not present.] proved to have been authorized under the Act, not being the servant of the owner, or authorised by him under sec. 28. But it is not necessary that there should be a specific appointment of the party for the purpose. In Cann v. Clipperton, 10 A. & E. 582, the defendant was the attorney. [Lord DENMAN, C. J.-There, I think, he had a general authority.] Here he had acted as attorney in respect of these houses. At any rate, he had reasonable ground for believing he had authority to prevent the destruction of the property, which would suffice; and the jury have found that he acted bona fide. The question as to his being the servant was not suggested at the trial. (He was then stopped.) M. Chambers, Q. C. contrà.-Whether he had reasonable ground of belief, as well as whether he acted bona fide, should have been left to the jury. Without negativing the proviso, no offence was proved, and no mere stranger can interfere under sec. 28. (Hopkins v. Crowe, 4 A. & E. 774.) Mr. Justice Patteson's judgment in that case shews that a mere notion, however honest, is not sufficient. (He referred also to Edge v. Parker, 8 B. & C. 697.) The defendant was not shewn to be within the description of persons mentioned in the Act. Creasy referred to Hughes v. Buckland, 15 M. & W. 348, as explaining Hopkins v. Crowe, to notice where he arbe entitled Saturday, April 17. Thus in Thursday, May 6. REG. V. THE TOWN COUNCIL OF LICHFIELD. of defending return to mandamus-Compensation for removal of officers. Municipal Corporation-Retainer of Attorney-Costs of L. to pay him compensation for the loss of an office, from which he had been removed by the town council. The corporation returned that S. had been dismissed for misconduct, which justified the disS. obtained a mandamus commanding the corporation missal. Upon traverse of the return, issue was joined, and at the trial the jury found a verdict in favour of S. The resolution of the town council removing S. from his office, contained no statement that he was but at the meeting at removed for misconduct; which that resolution was passed, the report of a committee had been presented to the council, staling that the committee could not acquit S. of misconduct. When the rule nisi for the mandamus had been ob tained, E. the attorney of the corporation, had been authorised and retained by resolution of the council to take such proceedings as should be necessary; and he accordingly conducted the return and the proAt a subsequent meeting of the ceedings thereon. council, held pursuant to a notice calling a meeting for the payment of such bills, accounts, salaries, allowances and employments as the council may think fit," an order was made upon the treasurer of the corporation, requiring him to pay E. 300l. on account of law expenses. These were the expenses incurred in defending the return to the writ of mandamus, but no bill had been delivered: out of the corporale funds, and that the order of the town council was valid. Held, that E. was entitled to be paid these expenses A rule nisi had been obtained calling upon the town council of Lichfield, and Mr. Alfred Eggington, their attorney, to shew cause why an order of the council Whitehurst, Q. C. moved, by leave, to set aside the requiring the treasurer of the borough to pay to Mr. (a) The fact was, he was the mortgagor, and the mortgagee was in possession. See statement of the case, which Eggington 300l. on account of law expenses, had been removed into this Court by certiorari, should not be quashed. From the affidavits it appeared that |