Clasemont, and had lately felled certain trees that had been planted or left standing or growing for the ornament or shelter of the said mansion-house, and the lawns, gardens, and pleasure-grounds adjoining; and had marked for cutting down other trees, and intended to cut down the whole or a very considerable number of the rest. The defendant had filed affidavits in opposition to the bill to the effect that after the deceased, Sir J. Morris, had built the mansion-house at Clasemont, he found that the smoke from the numerous copperworks in the neighbourhood was likely to render it an unfit residence for his family, and commenced forming a new park at Sketley, and ceased to reside at Clasemont; and that he had only carried his deceased father's intentions into effect by pulling down the house at Clasemont, and in using the materials for erecting a mansion at Sketley. That the defendant proposed cutting the timber under the impression that it had arrived at maturity, and that it was at maturity. That the proximity of copper-smoke from numerous copper-works had rendered Clasemont unfit for the growth of timber, of which proofs were adduced. To this the affidavits in reply denied that the smoke of the copper-works was injurious to the trees, or rendered the house unfit for a residence, and stated that there had been copper-works during the life-time of Sir J. Morris, deceased. The plaintiff now moved for the injunction. Jas. Parker and Beales, in support of the motion, contended that the defendant would not be allowed to take advantage of his own wrong, which he sought to do by first having pulled down the mansionhouse, and then adduced that as a reason for committing further waste by felling the trees also. There was no reason to suppose that they would not, at some future time, be required for ornament and shelter; for if by virtue of the power in the settlement to let on building leases, the property became let, those trees would again become valuable. The annoyance of the copper was not so great as the defendant represented, inasmuch as the collieries and copperworks were in existence when the mansion-house at Clasemont was first erected by Sir J. Morris, de ceased. Cases cited:-Duke of Leeds v. Lord Amherst, 10 Jur. 509, 956; Wellesley v. Wellesley, 6 Sim. 497. Bethell and Rasch contended that, as the mansion had been pulled down, which was clearly not a waste, and as a new one was built on another part of the property out of the materials, there no longer existed any necessity for the trees, which might, therefore, be felled without injury to the property. for the payment of an annuity or yearly sum of 501. The testator made a codicil to his said will, dated The Master to whom the cause stood referred by his report found that John Thomas Neate and Joseph Pickard and John Pickard were respectively indebted to the said testator in sums considerably exceeding the amount of their respective legacies, and that John Thomas Neate was indebted to the testator at the time of his decease in several sums amounting together to 4,000l. with an arrear of interest. And the Master certified that upon consideration of the said testator's will and codicil and of the several matters aforesaid, he was of opinion that the said testator did not by his codicil intend, and that such codicil did not did not operate, to release or bequeathe to the said Joseph Pickard and John Pickard, and John Thomas Neate respectively the several debts or sums of money due from them as aforesaid. To this report John Thomas Neate excepted, for the Master had not found that the testator had given to the legatees who were indebted to him the several sums of money in which such legatees were so indebted as part of their legacies. Whereas, &c. account of the charities as he had claimed by his answer. This was an information, filed in 1843, for an account of the real and personal property vested in Mr. Alderman Gibbs, in trust for the parish of St. Stephen, Walbrook. The defendant had refused to render any accounts except to the select vestry of the parish. By his answer Mr. Gibbs set out the accounts, and claimed 1,8021. 3s. 6d. to be due to him from the parish. On the 9th of July, 1844, a decree was made, referring it to the Master to take the accounts since the 10th of May, 1825, and by his report, dated the 15th of June, 1846, the Master found a balance of 5921. 14s. 10d. due to the defendant. The cause now coming on upon further directions, Swanston and Bates appeared for the relators. Roll, Heathfield, K. Parker, and Rogers, for other parties. The VICE-CHANCELLOR.-The accounts of Mr. Gibbs, as trustee of certain property held for the benefit of the parish of St. Stephen, Walbrook, have been taken for a period of twenty years. The result has been, that nothing has been found due from him upon the balance; and that a large sum, namely, a sum of 500l. or 600l. is found, in a sense, due to him-that is, his expenditure on account of the parish and in respect of the parish, has been found, during this period, to exceed his receipts by that amount. However morally just may be his claim to re-payment of that balance, I apprehend it cannot be allowed to him, and he must therefore lose it. According to my apprehension and understanding of the nature of the case, as it is agreed on all hands to be, it was a trust to apply the annual receipts substantially in annual expenditure. I apprehend, therefore, that unfortunate as the case may be for Mr. Gibbs, there does not exist any fund, and there does not exist any personal liability, which can be charged or affected, in his favour, with this sum. Therefore he must lose it, and I so decide. It is said, and truly, that before the institution of the suit, and afterwards, he claimed a much larger sum as being due to him from the parish; due to him, I say, in a sense, from the parish. It must be satisfactory, however, to all persons, if possible, to ascribe that claim rather to mistake and error than to a want of integrity. Upon the materials which were before the Master, and which are stated to a great extent in his report, it became probable, and to my mind is probable, to say the least of it, that the whole of the amount claimed by Mr. Gibbs has been expended, although not in a manner which would legally be allowed adversely The VICE-CHANCELLOR. This is the simplest against the parish. It does not, therefore, follow case possible; and it is to be remarked that as the because the sum due to him, if that expression legal estate is in the trustees, and in trust for Sir J. may be used, is less than the amount claimed Morris, and not in Sir John himself, he has no right to be due to him, that there has been any want whatever to cut timber. And it is to be observed, of pecuniary honesty, if I may use that phrase, that this estate is only held by the trustees, without and I see no reason for believing it. impeachment for waste, with the consent of the deson for believing that there has been a very misfendant, which gives him no right at all to fell the taken course of action, which, as it has happened, trees. No objection, however, is raised upon this has tended to his disadvantage. I am at a loss to see ground, as the trustees have not been made parties a satisfactory explanation given for his having allowed to the bill. The whole case, therefore, may be reperiod of twenty years to pass without having produced to this, namely,-the son, who has the legal duced or exhibited his accounts. It may be that he estate in remainder, complains of the father's acts, J. Parker, Rolt, and Pitman, for the residuary was not asked for it by his colleagues of the select who is the cestui que trust of the estate vested in legatees, and in support of the Master's finding, vestry; but I am of opinion that he ought not to trustees, in trust for him during his life. Now, un-held, that the mere accidental circumstance of the have waited for that. The parish at large was inless you can shew from the indenture of settlement a debts exceeding the amount of legacies could not vary terested in knowing it, and the neglect of duty on the special case which renders the rule inapplicable, the the plain meaning of the words in the codicil, nor the part of a body of which he was a member could be no general rule with respect to trees planted for shelter testator's obvious intention. The use of the word apology for that neglect of duty on his part. Upon or ornament must govern the present case. Although but" in the codicil instead of "and," shews that that ground, therefore, without at all questioning the the present case in some points differs from Wellesley the legacy was not intended to be given in addition. integrity of Mr. Gibbs, or the honesty of his inten v. Wellesley, there is in both an express power in- Bethell, in reply. tions, although, subject to that observation, censurserted in the instrument to devise lands to persons The VICE-CHANCELLOR observed, that the willing the course which he has thought it right to pursue, willing to erect houses on them. This, therefore, had clearly been drawn by some professional person, tends to sustain the right of those in remainder to but that the codicil was written by the testator himhave the trees that were planted for shelter and orna- self, which was manifest by the terms he had ment preserved, because, although the houses have not employed in expressing his meaning, whereby he yet any existence, yet it is possible that such houses shewed his ignorance of the English language, for he may be built that may require and receive ornament had used the word "renounce" instead of "revoke," and shelter from these trees; and under the circum-in reference to the two annuitants. His Honour stances of the case I feel myself bound to administer thought, looking at the words of the codicil, they the law of this Court which will not suffer the tenant could not be construed into any other meaning than for life without impeachment of waste to cut down that, if any person owed the testator any thing, the trees planted for shelter or ornament. debt should be taken as part of the legacy, namely, that the legatee should take both the legacy and a Exceptions allowed. Injunction granted. Friday, March 26. HYDE v. NEATE. Will-Legacy-Extinguishment of debt. T. P. by his will, provided, that should his legatees, or any other person to whom he had given a legacy, by any will, owe to him any sum or sums of money at his decease, it should be considered as part of their legacy. J. T. N. one of the legatees to whom the testator had given 1001. legacy, owed the testator at the time of his decease 4,000l. and upwards. This debt was held to be released to J. T. Ñ. This question came on upon exceptions to the Master's report, the suit having been instituted for the administration of the estate of the testator, Thomas Pickard, who, by his will, bearing date March 27th, 1835, who, after having given several legacies, directed his trustees to buy and purchase, or set apart and appropriate, sufficient funds to provide Bethell and E. Webster, in support of the exceptions, contended that the debts, which far exceeded the amount of the legacies, could not be taken as part of them; and the circumstance that certain other legacies were given for specific purposes, or for mar. ried women, who could not become indebted, was in. consistent with the idea that the testator intended the debts which the legatees might owe him should be deducted from their respective legacies. remission of the debt. VICE-CHANCELLOR KNIGHT March 9 and 11. Costs-Accounts. Where a churchwarden, chosen by a select vestry, had a I see rea I think he must pay the costs of the suit up to the hearing before the Master of the Rolls, subject to the observations I am about to make. That will include, I think, the costs of all persons except Mr. Atkins, who was a select vestryman, during the whole time. All the others appear to me, as far as I understand it, when they first became connected with the parish, to have found matters very much in the same condition as they had been for some time. Then comes the question of the costs after the hearing. Now, by means of the answer, but not before, the been, and did become, notorious in the parish. Had they been attentively examined, I must suppose that those who were interested in examining them might have seen and examined them in whatever manner they chose, and have ascertained that the parish had nothing to gain by taking the account at that time. Instead of examining and sifting them, they choose, with these accounts before them, and claiming, I agree, a great deal more than the sum found due, they choose to take the case into the Master's office. My opinion, therefore, is, that as to these there should be no costs on either side, and from the present time the costs should be reserved. state of Mr. Gibbs's accounts and claims must have Wednesday, March 10. pro confesso against a defendant who had appeared on the 29th of June 1846, but had not since put in his answer. At the time of his appearance, he was residing at Fladong's hotel, in Oxford-street, but he could not now be heard of. On the 4th of February an attachment was issued against him for want of an answer, and, on the 22nd of February, notice of this motion was served upon the solicitor who had before acted for him. The VICE-CHANCELLOR directed that the bill should be taken pro confesso on the second cause-day in Easter Term, but the order was made without prejudice to any application the defendant might make in the meantime. Thursday, March 18. 6 & 7 Vict. c. 85-Examination of co-defendant. Where a defendant had examined a co-defendant, whose case was the same as his own, the Court declined to admit the evidence. This was a suit against two persons for the specific performance of a contract. The case for defence made by each was the same, and one of the defendants tendered the evidence of his co-defendant, who had been examined as a witness on his behalf. Bacon and Beales, for the defendants, contended that this evidence was admissible. By the first section of the 6 & 7 Vict. c. 85, it is provided that in courts of equity any defendant to any cause pending in any such court may be examined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, saving just exceptions; and that any interest which such defendant so to be examined may have in the matters or any of the matters in question in the cause shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness. Russell and Piggott, for the plaintiff. The VICE-CHANCELLOR said, that he was of opinion that in a case like the present, where the case of the two defendants was precisely the same, one could not be examined as a witness for the other. Whatever might be the opinion of any other judge upon the proper construction to be put upon this Act of Parliament, he would decline to be the first judge to hold that one defendant could be examined as a witness for his co-defendant, both having the same case. Common Law Courts. COURT OF QUEEN'S BENCE, Michaelmas Term, 1845-Hilary Term, 1847. WRIGHTUP v. GREENACRE. c. 4. Sheriff's fees, 7 Wm. 4 & 1 Vict. c. 55; 29 Eliz. The 29 Eliz. c. 4, is not repealed by 7 Wm. 4 & 1 Vict. c. 55, and an action in debt for treble damages may still be maintained against a sheriff's officer for taking more than the fees allowed under the two statutes. Debt for treble damages under 29 Eliz. c. 4, against a sheriff's officer. The declaration set out at length the allowances of the table of fees under 7 Wm. 4 & 1 Vict. c. 55, negativing the allowance of any other fees; it then averred what was due in respect of the severalfees payable upon the execution in question, and treble the amount taken above the said fees so due, claimed by virtue of the statute. The defendant demurred, on the ground that the declaration was repugnant, in admitting that more fees might be taken than those mentioned in the statute of Elizabeth, and at the same time claiming a penalty for taking more. The point for argument was, that the penal part of the statute was repealed. In Michaelmas Term, 1845, The Solicitor-General, Sir F. Kelly (with whom was Atherton) was heard in support of the demurrer, and Martin, Q. C. (with him Gunning) contrà. Cases cited: Ushers v. Walters, 4 Q. B. 553; Rex v. Cator, 4 Burr. 2026; Rex v. Northleach (Trustees), 5 B. & Ad. 978; Davies v. Griffiths, 4 M. & W. 377; Foster's case, 11 Rep. 63; Bac. Abr. title Statute, D. Cur. adv. vult. JUDGMENT. Feb. 8.-Lord DENMAN, C. J.-There was a demurrer to the first count of the declaration to recover treble damages against the defendant, as one of the bailiffs of the sheriff of the county of Norfolk, under the statute of the 29th of Elizabeth. The declaration stated the recovery of a judgment against the plaintiff; that after the passing of the Act 1 Vict. c. 55, under which the judges sanctioned and authorised the sheriffs and their officers to take certain specified fees for executing writs of fieri facias, and that no other fees were allowed by the judges than those specified, that a writ of fieri facias was issued against the goods of the present plaintiff, the then defendant, by the then plaintiff, directed to the sheriff of Norfolk, endorsed to levy 2967. 11s. and interest, and a guinea for the execution, besides, &c.; that the sheriff made his warrant directed to the defendant; I that the defendant, as such bailiff to the sheriff, levied Michaelmas Term, 1845-Feb. 8, 1847. Fee farm-Rent-4 Geo. 2, c. 28. In this case cause was shewn against a rule ob- Cur, adv. vult. JUDGMENT. Feb. 8.-Lord DENMAN, C. J.-This was an action of replevin, which was tried before the Chief Baron. The defendant made cognizance as bailiff of Lord B. and others, alleging that Lord B. the deceased, was seised as of fee of an estate of and in the manor at a fee farm rent of 11. 9s. 2d. payable from and issuing out of the dwelling-house in which, &c.; and after deducing title out of the parties under whom he made cognizance, averred the fee farm rent had been properly paid for the space of three years within the space of twenty years next before the first day of the Parliament holden in the fourth year of Geo. 2, and justified the distress for the fee farm rent. The plaintiff traversed, among other things, the allegation of the rent having been paid for the space of three years within the space of twenty years before the day in question. On the trial the verdict was found generally for the defendant, and a new trial was moved for on two grounds: first, the improper reception of certain accounts in evidence; and secondly, that there was no evidence that the rent had been paid for the space of three years continuously within the space of twenty years before the day in question. The first objection was disposed of on the argument, and we were clearly of opinion that the accounts were properly admitted. With respect to the second objection, the evidence was that rent had been paid during the years 1716, 1717, and part of 1718, and afterwards, during the year 1726, and two days of 1727, making in the whole four years, but not continuously; the question was whether this was sufficient to satisfy the words of the statute of George the Second, and we think that it was. The statute says, that "every person shall have the like remedy by distress, in cases of rent, such as had been duly paid for the space of three years within the space of twenty years, before the first day of the late session of Parlia ment." No case was cited in support of the position that the three years mentioned in the statute must be continuous; nor are we aware of any case in which it has been so held, nor do either the words or the spirit of the statute require such a construction. It appears to us sufficient, that for the space of three whole years within the twenty years before the passing of the Act the rent was paid, although these years were not continuous. An objection was also taken to the avowry in arrest of judgment, that it was bad after verdict, and that it ought to have shewed the origin of the rent; and the conclusion drawn, that the allegation of seisin in fee of the rentcharge, as no right to distrain was shewn, was bad on the face of it. Several cases were cited in support of the first objection, but without giving any opinion as to what our judgment would have been had the question arisen on demurrer, it appears to us it is too late to take the objection now, it being at most a defective there is no legal objection to the allegation of seisin statement of title, which is cured by verdict. But in fee of the fee-farm rent, and it is the usual mode of describing such an interest in rent, as in the case of Bradbury v. Wright, Douglas, 602. With respect to the right to distrain, it was decided in that case, a fee-farm rent may be distrained for under the 4 Geo. as it is in the present case. 2, provided the case is brought within the 5th section, We are therefore of opinion the present rule must be discharged on all points. Rule discharged. Saturday, Feb. 13. probable cause. Action for malicious prosecution—Reasonable and In an action for malicious prosecution, the duty of the judge is to decide whether the facts found by the jury amount to reasonable and probable cause; and amongst the facts to be found by the jury is the defendant's knowledge of those which go to constitute the reasonable and probable cause, and the defendant's belief that the charge was well founded. But when the facts proved by the defendant shew reasonable and probable cause for the charge, the plaintiff must prove that the defendant himself, when he made it, did not believe it to be well founded; and an unfair use being made of the charge, is no evidence that the defendant did not himself believe that there was any reasonable and probable cause for making it. This was an action for a malicious prosecution on a charge of felony for stealing fixtures. Plea, Not Guilty. At the trial before Lord Denman, C.J. the question of malice was left to the jury, and they found that of the Exchequer Chamber in Panton v. Williams, for the plaintiff; but in conformity with the decision the learned judge directed the jury that, if they believed the evidence, there was upon the facts proved reasonable and probable cause, and the verdict was accordingly entered for the defendant. Hill, Q. C. had obtained a rule nisi for a new trial, on the ground of misdirection; against which Hoggins (Thursday, Feb. 4) shewed cause. Hill, Q. C. and Miller contrà argued that the learned judge ought to have laid the facts before the jury, and to have asked them whether in point of fact the defendant had reasonable and probable cause for the charge which he made; and also that he ought particularly to have drawn the attention of the jury JUDGMENT. open account, it was a trust account." (See per the cause of action would survive to her. (Ayling v. JUDGMENT. Lord DENMAN, C. J.-We are of opinion that this Lord DENMAN, C. J.-The prevailing law of reasonable and probable cause is this, that the jury are to ascertain certain facts, and that the judge is to decide whether those facts amount to such cause. But among the facts to be ascertained is the know-able at all, the wife may certainly be joined; because ledge of the defendant of the existence of those which tend to show reasonable and probable cause, because without knowing them he could not act on them, and also the defendant's belief that the facts amounted to the offence which he charged, because otherwise he would have made that a pretext for prosecution with out even entertaining an opinion that he had a right to do so; in other words the reasonable and probable cause must appear not only to be deducible in point of law from the facts, but to have existed in the defendant's mind at the time of the proceeding; and perhaps, whether they did so or not, is rather an independent question for the jury, to be decided on their view of all the particulars of the defendant's conduct, than for the judge, to whom the legal effects of the facts only is more properly referred. In the present case the plaintiff had certainly dealt with the defendant's goods in such a manner as could hardly fail to raise a strong suspicion that he had committed a felony; on this the judge gave his opinion that there was reasonable and probable cause for the prosecution, and the defendant's knowledge of it could not be made a matter of doubt. But the plaintiff imputed to him on the trial, that he took an unfair advantage of the irregular conduct of the plaintiff to turn him out of possession of his house, without believing a felony had been committed; and he pointed to the defendant's great eagerness to get rid of him, and possess himself of the house, as furnishing evidence not only of his motive, but of his opinion. It is difficult to distinguish between this supposed state of mind and malice; but the Court of Common Pleas, in a late decision (Broad v. Ham, 8 Scott, 40), sustained a direction that if the defendant, though cognizant of the facts which constituted a reasonable and probable cause, did not think it reasonable and probable, but acted from malicious motives only, and without that belief, then there was no probable cause. The doctrine, however, must be qualified by the necessity of requiring proof, and the absence of that proof where reasonable and probable cause is proved to have existed. There was none such evidence in this case; I was not required to lay it before the jury, and, if required, I could not have done so. An unfair use made of the charge may prove malice, and the jury held that it did; but it does not raise any inference of a belief that there was no reasonable and probable cause; but the contrary belief is perfectly consistent with malice. We are therefore of opinion that there should be no further trial. Rule discharged. BOND and WIFE v. NURSE. Action by husband and wife against a wife's trustees, for money received for her sole and separate use. In an action by husband and wife for money had and received, it appeared that the defendant was the wife's trustee, for her sole and separate use; and that he had admitted that he held the money claimed for the wife, but not subject to the husband's interference. By the instrument creating the trust, the wife's sole and separate receipt was declared to be a discharge to the trustees; and the defendant refused to pay the money without such receipt: Held, that under these circumstances the action was not maintainable. Assumpsit, for money had and received, and on an account stated. Plea, non assumpsit. At the trial, it appeared that the defendant was trustee under a will, for the sole and separate use of the female plaintiff; that he had admitted that he held the amount claimed for the wife, but not subject to her husband's interference; and that he refused to pay the money without her sole and separate receipt; which by the will was declared to be a discharge to the trustees. It appeared also that there had been a suit in Chancery; and a decree ordering certain deeds to be prepared for the purpose of carrying into execution the trusts of the will; and the defendant had declared that he would not pay the money unless the wife would execute one of such deeds. A nonsuit having been entered, a rule to set it aside and enter a verdict for the plaintiffs was afterwards obtained. Against that rule H. Hill (Thursday, Feb. 4) shewed cause. This action cannot be maintained. The case is quite different from that of Roper v. Holland, 3 Ad. & Ell. 99, where the trustee and cestui que trust stated an account; for here the account is open, and as Lord Denman, C. J. said in that case-“if this was an Thursday, Feb. 25. REG. V. THE TOWN COUNCIL OF BIRMINGHAM. The town-council of the borough of B. in order to ob The stat. of 5 & 6 Vict. c. 98, was then passed; and Held, nevertheless, that the borough were bound to pay the county the actual expenses incurred. half years ending 31st of December, 1844, and 30th day of June, 1845, and to make and levy such rate or rates within the said borough as might be necessary for raising the said sum of 11,7421. 3s. 9d. for the purposes aforesaid, it was agreed between the parties that the points in dispute should be decided by the Court upon the facts stated in a case, of which the following were the material parts : The district comprised within the borough of Birmingham is situate within the county of Warwick, and before the grant of a separate Court of Quarter Sessions was liable to be rated to all rates laid and levied upon the said county. In March 1839, the council of the said borough agreed to present a petition to the Queen for a separate Court of Quarter Sessions; and appointed a committee to treat with the county justices upon the subject. Neither at that time or since has there been any gaol or house of correction within the said borough, though there was a prison for the temporary confinement of prisoners before committal,-not, however, in the order and government of the council. A committee of county justices was also appointed to confer with the council on a proposal relative to the maintenance, &c. of the borough prisoners in the county gaol and house of correction; and that committee in April 1839 reported that the county could not be repaid for the maintenance, &c. of the prisoners at a less amount than about 1s. per head per day; but that, taking all the circumstances into consideration, and being disposed to meet the question in a liberal spirit, they thought that the sum of 11d. per head per day might be fixed as a very moderate charge for one year, commencing with the date of the first commitment from the borough, which report was confirmed at the Easter Quarter Sessions, 1839. On the 12th of April in the same year, the committee appointed by the council presented their report, concluding thus:-"Your committee are not disposed to complain of the terms offered (11d. per head per day), and which they recommend should be accepted by the town council.' The council, by resolutions, directed the said report to be entered on the minutes of their proceedings, that the terms proposed by the county justices for the maintenance of the borough prisoners in the county gaol and Bridewell be accepted, and that the mayor do communicate to the chairman of the county sessions the council's acceptance of the proposed terms, at the same time intimating to him that such terms were understood by the council to embrace the maintenance as well of the prisoners tried at the county assizes as at the borough sessions. At the said meeting it was further resolved that the mayor do acquaint the Home Office with the arrangement made with the county justices to the end that there may be no further delay in the grant of Quarter Sessions. Those communications were duly made by the mayor; and on the 3rd of May, 1839, a separate Court of Quarter Sessions was granted to the borough. At the Michaelmas Sessions in that year the county justices appointed two of their number to enter into a contract for the maintenance of the borough prisoners with the council upon the terms agreed upon at the then last Easter Quarter Sessions. clerk of the peace of the county and the town clerk A correspondence then took place between the of the borough, in which the latter represented that in consequence of objections being made to the validity of their charter, the corporation could not at present fulfil engagements of a pecuniary nature on so large a scale; and subsequently a resolution was passed by the council, in which it was announced that the council was for the present unable to fulfil its part of the contract. Since the grant of a separate Court of Quarter By the 5 & 6 Vict. c. 110, the county of Warwick is Sessions, all offences coinmitted in the borough have required to pay for the building, repair, and mainte-been tried at such court, and the expenses of prosenance of the Coventry gaol and house of correction, &c. and the borough of B. had been charged by the county with a share of the money paid in the purchase of such gaol and house of correction: Held, that the borough of Birmingham was for this purpose part of the county of Warwick, and therefore liable to pay its share of that expense. A rule having been obtained calling on the council of the borough of Birmingham to shew cause why a writ of mandamus should not issue commanding them to pay to the justices of Warwickshire or to their treasurer the sum of 11,7421. 3s. 9d. being the balance due from the council of the said borough to the treasurer of the said county for expenses incurred in respect of the prosecution, maintenance, punishment, safe custody and care of prisoners committed from the said borough to the county gaol and house of correction of the said county since the grant of a separate Court of Quarter Sessions to the said borough for offences which had arisen within the same, and also in respect of the proportion due to the said borough in respect of all sums of money expended out of the county rate during the same period for other purposes than the costs arising out of the prosecution, maintenance, punishment, conveyance, and transport of offenders committed for trial in such county, and other than out of coroners' inquests, exclusive of the expenses for such matters for the cution paid by the treasurer of the borough, except at the Michaelmas Sessions, 1840, the Epiphany Sessions, and an Adjourned Sessions, 1841, when they were tried at the County Sessions, and the expenses paid out of the county fund, and charged in account against the borough. The prisoners committed for trial at the Borough Sessions have been conveyed to the county gaol for safe custody, brought back to the borough for trial, and, after conviction, reconveyed to the county gaol or house of correction to undergo their sentences. In September 1839 an account was sent to the treasurer of the borough in accordance with the before-mentioned agreement; but after doubts had arisen as to the validity of the borough charter, no further accounts for maintenance or otherwise against the said borough were delivered, nor was any demand made by the county treasurer until 1842; although the borough prisoners were sent to the gaol and house of correction of the county up to the Epiphany Sessions 1841, when the county justices made an order excluding from the house of correction all prisoners committed by borough magistrates. In September 1842 sundry accounts against the said borough for the maintenance, &c. of offenders, and the expenses of prosecutions at the assizes and sessions, were sent to the town clerk of the borough; and the maintenance accounts were made out at the rate of 11d. per head per day for each prisoner confined in the county gaol and house of correction up to the 30th of June, 1842, and not according to the stat. 5 & 6 Vict. c. 98, of the passing of which the county treasurer was not then aware. By the 15th sect. of that Act, which passed on the 10th of August, 1842, it is enacted, "That in every such borough as aforesaid, to which a separate Court of Sessions of the Peace hath or shall hereafter be granted, there shall be one common gaol, and at least one house of correction, excepting those boroughs in which the mayor, &c. shall have contracted with justices having authority or jurisdiction in or over any gaol or house of correction of the county, &c. wherein such borough is situated, &c. for the support and maintenance in such gaol, &c. of any prisoners committed thereunto from such borough, &c. And it shall be lawful for the mayor, &c. to enter into such contracts as afore said, although at the time of entering into such contract there may be no gaol, &c. belonging to such borough, &c. By the 18th sect. it is provided that where persons committed for offences within such borough have been or shall be sent to any prison of the county, in which such borough is situate, and no such special contract shall be subsisting between such borough and county relative to the said prisoners, the council of such borough shall pay or cause to be paid to the treasurer of such prison, or other person appointed by the justices of the peace in general or quarter sessions assembled for the county, in which, &c. the actual expenses heretofore incurred, or hereafter to be incurred, in the conveyance, transport, maintenance, safe custody and care of every such prisoner, according to the time for which each such prisoner shall have been or shall remain in custody there, at the average daily cost of each prisoner, according to the whole number of prisoners confined in the said prison, such average to be taken yearly, &c.: Provided always that the payment of any such expenses incurred before the passing of this Act may be made by five equal yearly instalments, the first of such instalments to be payable within three calendar months after the passing of this Act, with interest, &c." On the 1st of October, 1842, a meeting took place between two borough and two county magistrates, respectively appointed as committees for the purpose of arranging for the future use of the gaol and house cf correction, at which certain terms were proposed by the council; and on the 3rd of October, a draft agreement was sent for approval to one of the said county magistrates. That agreement was drawn up in conformity with the provisions of the last-mentioned statute, and stipulated that the council should pay for the conveyance, &c. of prisoners hereafter to be committed to the county gaol and house of correction, the actual expenses incurred: that the unsettled claim of the county against the borough for expenses heretofore incurred in the conveyance, &c. of prisoners committed to the said county gaol, should be assessed and paid upon the same principle, in conformity with the provisions of the said Act; and that the expenses heretofore incurred in the conveyance, &c. of prisoners committed to the house of correction for the county by the borough justices, should be assessed and paid in like manner. At the Michaelmas Quarter Sessions, 1842, the county justices confirmed the above agreement, which was also confirmed by the town council on the 7th of October. The accounts which had been previously delivered to the borough were then returned to the clerk of the peace for alteration in accordance with the above agreement, and after alteration were again sent to the town clerk of the borough, with a letter informing him that "the average daily cost is more than what was originally agreed upon between the county justices and the town council." commitments by county justices to the house of cor- county, or any prisoners other than such as were This case was argued on Wednesday, Feb. 10, and Thursday, Feb. 11, by Mellor, for the Justices of the County of Warwick, and M. D. Hill, Q. C. (with whom was Gale), for the Town Council of Birmingham, but the nature of the case renders it unnecessary to publish the argument. JUDGMENT. Cur. ade. vult. COURT OF EXCHEQUER. Thursday, April 15. WAIT and ANOTHER v. BAKER. Quære, whether upon a contract for the sale of corn This was an action of trover tried before Mr. Justice Williams at the last assizes for Somerset, when a verdict was found for the plaintiff, with leave given to the defendant to move to set the same aside. LORD DENMAN, C. J.-This was an application for a mandamus to pay a sum of money to the justices of the county of Warwick. By the case stated by the parties it appears a separate court of sessions was granted to the borough on the 3rd of May, 1837; the borough having no gaol, a negotiation was entered into by the borough for a contract, by which it was agreed (there being no formal contract at the time) that the sum of 11d. per head per day should be paid by the borough to the justices for such prisoners, and that the agreement should continue for one year after the quarter sessions of the county, to be computed from the time of the first commitment from the borough after the grant of general quarter sessions. It is clear that the borough could not be included in the county rate under the 5 & 6 Wm. 4, c. 76, s. 112, but for the enactment that the borough should be liable, under the 114th section, for expenses of prisoners tried at the assizes, and, under the 117th, to a proportion of other county expenses. No provision is made for the expenses of prisoners tried at the sessions, because the Act says, no grant shall be made of a separate court of quarter sessions, till the borough shall have a gaol of its own. After the grant to the borough, application was made by the justices of the county to have a formal contract entered into; but, Bult now moved accordingly, pursuant to leave reowing to a doubt which existed as to the validity of served.-It appeared that the plaintiffs and defendant the charter of Birmingham, no such contract was were corn dealers at Bristol, and the action was entered into or made. Afterwards the 5 & 6 Vict. c. brought to recover the value of a quantity of barley 98, was passed. That provides, by section 18, that sold by a Mr. Lethbridge to the defendant; two letwhen borough prisoners are sent to any prison of the ters formed the contract between the parties,-one county, on special contract subsisting between such dated the 14th of December, and the other on the borough and county relative to the said prisoners, the 16th of December, when Baker wrote, accepting the council of the borough shall pay the actual expenses barley free on board at Kingsbridge. On the 7th theretofore incurred, or thereafter to be incurred. Both of the following month the loading was completed; parties treated this section as applicable to this case, and on the 8th, the vendor called on the vendee, as appears by a draft of an agreement of the 3rd of brought a sample of the bulk, and left it with the bill October, 1842, which was not itself set out in the of lading and the invoice. The vendee was then out, case, but is recited in an order of the County Ses- but on the vendor's calling again he saw the defend. sions, which is set out; whereby it was distinctly ant, who said the sample did not accord, and he provided that the actual expenses should be paid, should require an allowance to be made him in conseboth prospectively and retrospectively; and accord-quence. The bill of lading and invoice were afteringly an account was afterwards sent in by the wards snatched up, and indorsed by the vendor to the county treasurer to the borough, charging the plaintiffs, with their knowledge of all the circumamount of 11d. per head to the amount of the stances. Baker had tendered 1,1367. the amount of actual expense. We cannot, therefore, entertain the invoice price; he claimed the right to the cargo, any doubt that the actual expenses ought to be and had gone to the vessel on its arrival and unloaded charged, and not the reduced sum of 11d. per a part of the grain, when the plaintiffs stopped the head, as to which no contract, even for a year, was delivery of the rest, of which they themselves took distinctly made. But it appears that, owing to a possession, and brought the present action to recover resolution passed at the County Epiphany Sessions, the value of what had been taken. It was submitted in 1841, the county-house of correction was closed the property passed when put on board for the against the prisoners committed by the borough ma- vendee; as the ship was hired for him he had to pay gistrates: the expenses of conveyance were incurred the freight, and it was in fact from that time at his by the borough in procuring the committal of such risk. [PARKE, B.-The bill of lading was not inprisoners by the county magistrates; and it is con- dorsed by Baker; and the question is, whether the tended that the commitments being by magistrates for property passes until indorsement of the bill of The council of the borough of Birmingham contend the county, the borough ought not to pay for such lading?] Could Lethbridge have maintained an acthat they are not liable to pay for any prisoners com- prisoners. By the operation of the 5 & 6 Wm. 4, it tion against the defendant for the price? He had mitted, either to the house of correction or county is clear the borough could not be made even to put it on board for him, and there was a delivery, at gaol, more than at the rate of 11d. per head per day; contribute to the expenses of prisoners committing all events after the delivery of the bill of lading and and that they are not liable to pay anything for offences in the borough, or committing offences in the invoice, and a tender had been made of the amount Since the 9th of March, 1843, accounts have been regularly sent to the borough, in accordance with the last-mentioned agreement, but none before. In July 1843, the clerk of the peace for the county, in pursuance of a resolution of the previous sessions, applied to the corporation to take early measures for the more speedy liquidation of the debt due to the county, of which a statement was at the same time sent. Sums of money have been, from time to time, paid on account by the treasurer of the borough, and no objection has been made to the accounts delivered in respect of the sum mentioned in the rule, and that sum is due unless, under the circumstances before and hereinafter mentioned, the borough is entitled to a deduction therefrom. It is contended on the part of the justices of the county of Warwick, that the council of the said borough are liable to pay for the maintenance of all the prisoners heretofore committed to the county gaol and house of correction from the districts conterminous with the borough, at the rate authorized by the 18th section of the 5 & 6 Vict. c. 98. Prius order does not supply us with that information.] POLLOCK, C.B.-We see no means of your en- BUSINESS OF THE WEEK. Rule absolute. BROADBENT and OTHERS V. FRANLEY and ANOTHER.- In the goods of the Rev. JAMES CURREY. Practice of the Prerogative Office. A trustee in the remainder of two terms of years died in 1823. Administration, limited to his interest in those terms, was granted as if the deceased had died intestate, but without citing the widow or the next of kin. The widow now produced a will, and applied for probate cæterorum, as the sole executrix thereof. The Court refused the grant, and directed that in future such administrations should not pass without the next of kin being first cited. Hoggins now moved accordingly.-The defendant was a brewer in Yorkshire, and the action was brought againt him by the plaintiff, who was an advertising agent, for work done and money paid for the use of the defendant as a director of the Dutch Hanoverian Railway Company, which began at the latter end of 1845. On the 5th of November, 1845, after the first meeting, 101. was agreed to be subscribed by each of the directors, the defendant being one, to cover preliminary disbursements. On the 1st of January, 1846, a meeting of the directors took place, but the defendant was not then present, and resolutions were then made which had been received in evidence in this case, to advertise, &c. in the necessary papers. On the 7th of January another meeting took place, at which the defendant was present, when the proceedings of the 7th of January were read but not confirmed; but it was then agreed by a resolution, into which the defendant had entered, to indemnify one Collins from liability in consequence of any advertisements ordered by the secretary. On the 14th of January, another meeting was held, at which the defendant was present; something then took place which induced him to leave, and he never attended afterwards. Early in February shares were allotted, and from the 9th to the 14th of February deposits came in to the amount of several thousands of pounds. On the 25th of February the defendant covery, instead of suing in this court. Under the 1 & 2 ceased and without their renunciation. The widow demanded back his 107. and received it: he had refused, also, to take any shares. The secretary had ordered the advertisements in pursuance of the resolutions, and it was sought to make the defendant liable on the resolutions come to on the 1st of January, at which he was not present, because they were read at the meeting on the 7th, at which he was present. No order was given by Collins, as the advertising agent refused to take it from him. Rule nisi. HILL V. BROWN. If a plaintiff agrees with defendant to postpone a cause at Nisi Prius, and the defendant undertakes to pay the costs of the day, to be taxed, under an order of Nisi Prius, and dies on the following day, the Master will not, on the defendant's executrix interfering to prevent such taxation, be directed to proceed with it, there appearing to be no means of carrying out the proceedings with effect if such costs were to be taxed. This was an action for malicious prosecution, entered for trial at the Hertford Assizes 1846. One of the defendant's witnesses, in returning home, was killed; whereupon an order was obtained (by consent) to postpone the trial, upon payment of the costs of the day, to be taxed. The day following the defendant died, and his widow was appointed his executrix. Notice was given of the intended taxation, when the attorney for the executrix attended and objected to the Master's taxing, and which he therefore declined to do. A summons was taken out and heard before Rolfe, B. for the purpose of directing the Master to proceed in the taxation, but his lordship directed it to be discharged with costs; and Lush having obtained a rule to shew cause why the Master should not tax the plaintiff his costs of the day, and Rolfe, B.'s order rescinded, Rule nisi. WINTERBOURNE v. WAGNOR.-Alexander, Q. C. moved sheriff of Middlesex, in consequence of the misconduct of a JOB PICTOR. TAFT.-Martin, Q. C. moved to set aside BAIL COURT. Easter Term, April 15, 1847. (Before COLERIDGE, J.) Rule nisi. The following enlarged rules will be called on for argument in this court at the termination of the second sittings after the first round of unopposed motions: In the matter of MARSH and ANOTHER, In the matter of the Westminster Improvement Dog dem. HAXBY . PRESTON. REG. v. THE JUSTICES OF SOMERSETSHIRE. In the matter of KEARNS, Gent. and ANOTHER. Friday, April 16. The deceased J. C. died on the 8th of August, 1823, leaving a will, of which his widow M. C. was appointed sole executrix. In consequence of the nature of the property, probate of the will was not required until August 1846, when the widow was sworn as executrix. Before, however, the grant had passed the seal of the Court, it was discovered that in May 1829 letters of administration, limited to the interest of the deceased as trustee in the remainder of two terms of years, had been granted to the nominee of J. M. and J. C. who had the sole equitable interest therein. According to the practice of the Prerogative Office, more than twelve months having elapsed since the death of the deceased, this administration issued without citing those interested in a general administration of the effects of the de had, therefore, no knowledge of the transaction, and the deceased was described in the grant as having died intestate. The widow was now anxious to obtain probate of the will, limited to the rest of the personal property of the deceased, exclusive of the terms already granted, and without calling in the administration under which they had been conveyed. Deane moved for probate cæterorum to be granted to the widow, citing the case In the goods of John Savory (not reported), decided Michaelmas Term, 1815, where a testator died, leaving a will dated 1828, of which his wife and two sons were named executors, and his wife also residuary legatee. The wife, however, died in the testator's lifetime. Probate of the will was not taken until 1838, when, upon the renunciation of the executors, an administration, limited to a term vested in the deceased, was granted. The Court, on an ex parte motion, allowed one of the executors to retract his renunciation, and to take a cæterorum probate, observing, "there had been no general grant." And also Harris and Wiggins v. Milburn, 2 Hagg. 62, where probate cæterorum was decreed, after an administration limited to substantiate proceedings in the Court of Chancery had been taken. Sir H. J. FUST.-In the case of Harris v. Milburn there had been a citation of the next of kin, whereas here there has been none. The administration has been erroneously granted on a statement that the deceased had died intestate; and twenty-three years after his death application is made, for the first time, for probate of his will. The party applying for this grant should consider whether the assignment under a cæterorum grant will be a valid assignment. The widow is entitled to a grant; and the only question is, in what form it should go out-whether a cæterorum or a general grant. The case must stand over for the present. Deane renewed the motion, urging upon the Court that a cæterorum grant would best serve the interest af all parties, and be the most convenient. In addition to the cases of Harris v. Milburn, and In the Chamberlaine and Candler, the one for sending and goods of Savory, he referred to another unreported the other for taking a challenge to Mr. Elgie (Mayor case, In the goods of W. Bell (the bye-day after of Worcester), to fight a duel. It did not distinctly Hilary Term 1846), where an administration, limited appear that the challenge in question was sent by to a certain term of years, passed, the deceased being Mr. Chamberlaine, and as Mr. Candler was only the erroneously described in the form of the grant to have bearer of it, his lordship thought that the circum- died a widower, and the name of one of his children havstances scarcely called for interference in this way. ing been omitted in the recital of his relations. Both Talfourd, Serjt. stated that the only object of Mr. these errors were discovered before a second adminisElgie was, as chief magistrate of Worcester, to vindi-tration passed, limited to certain trust property. The cate his character from the insult put upon it. Petersdorff shewed cause, and contended that the (Before Mr. Justice COLERIDGE.) present rule must be discharged. There was no such Ex parte F. T. ELGIE, Esq. Mayor of Worcester. person as William Frederick Brown, or any such Criminal information. cause as that named now in existence, Brown having Talfourd, Serjt. moved for leave to file a criminal died, before verdict; on the 9th of July, 1846, appli-information against two gentlemen of the name of cation was made to postpone the trial on defendant's paying the costs of the day; the defendant died on the 14th of July, and the order of Nisi Prius was made a rule of court on the 5th of November following. This is a rule calling on the widow of the defendant to shew cause why the costs should not be taxed; but the Court has no power over her, as it would have over any of its officers. She is the executrix of her husband, it is true; but she could not be attached for the costs if they were taxed, nor could any affidavits be made in the cause of Hill v. Brown, there being now no such cause. If the costs were taxed, the Court have no means of enforcing them. Lush, in support of the rule, was then called upon. -He said the plaintiff had evidence of a contract, founded on a good consideration. The Master would have taxed the costs upon the order of Nisi Prius, which was afterwards made a rule of Court, if the widow, the executrix, had not come in and interfered, and prevented him; the plaintiff has therefore now called upon her to shew cause why she does so. [PARKE, B.-You ought to shew us that you have a remedy to enforce payment of these costs after they may be taxed, otherwise the Court will not interfere, and the Nisi COLERIDGE, J. hoped that this application would answer that purpose; and that, at all events, should any further annoyance take place, Mr. Elgie would not be precluded from again applying to the Court. No rule. errors in the first form of grant were noted in the entry in the "Act Book," and in the records relating to it, proving thereby that the second administration passed with a full knowledge of the first one having been granted. In the goods of Savory, the executor was allowed to retract his renunciation of the executorship, and to take a cæterorum grant without the the peremptory undertaking herein. FALCONER V. DOWNE.-Martin, Q. C. moved to enlarge limited administration which had been granted being Rule nisi. called in, or any communication being made to those REG. . THE LORD OF THE MANOR OF CORBY.-White. interested under it. hurst, Q. C. moved for the costs of the mandamus herein. BUSINESS OF THE WEEK. Rule nisi. WEBSTER V. HOLDSWORTH.-Bovill moved, in this case (which was tried before the Under-sheriff for Yorkshire, when a verdict was returned for the plaintiff, damages 71. for a new trial on the ground of misdirection. (Henwood v. By the COURT.-Can I allow an executor to renounce a part of the execution of the will? He has the universum jus. He is the executor of the whole will. I am anxious to stop the practice as a very erroneous one, of making these grants without |