The Express.
London, England, 1852-01-28 00:00:00

EQUITY COURTS.—YEsTERDAT.

Eirrtsias 1s I taosuiewiaiL—ttrwisis int Limo Cosner-Lat.
PERCIVAL e. CAN RT.—EVIDENCE us' ALLEGED Lt. MACY.
The case of the appellants (the defendants below) was
resumed yesterday morning. The Lord Cie ineellor having
on Monday decided that the deposition of Mrs. Page (now
one of the defendants in the revived suit), taken in the ori-
ginal suit, might be used in evidence, the deposition was
accordingly read by counsel. This document was of consi-
derable length, and stated a variety of facts, with the view
to show that Miss Caney was of unsound mind anterior to
the elate to which the verdict at the inquest earned back
the lunacy, lad including the year 1439, when the memo-
, tandem as to the MUMS held by Miss Ceeuey fur Mrs. Per-
cival was drawn up. The deponent, in her evidence, de-
scribed the filthy habits and miserly propensities of Min
Caney, and stated that ;she was generally in rags, and
bore all the appearance of a peen en in a very abject state
of poverty. fhe witness also deposed to various delusions
under which Miss Caney laboured.
Mr. Malins resumed his argument. commenting at consi-
derable length nil the evil, nee of this witmrs and the tes-
timony of a similar character given ley Mrs. Linwood, of
Cheltenham, in the cour.•e of the 1.3115 C, from all of which it
was inferred that Miss Caney was of unsound mind at the
time the memorandum was drawn up.
Mr. Chenille's, in the course of a very ingenious address,
•übmittcd that there was sufficient evidence to show that
Miss Caney was of unsound ;laud previous to, and at the
date of, the memorandum. Ile did nest tusk hie lordship abso-
lutely to dismiss the bill; but in a question where the evi-
dence was so contradictory he was entitled to ask that there
should be some further inquiry before a final decision
de-
creeing the transfer of the 4,300/. to the plaintiff waa come to.
The Lord Chancellor suEitesieil that if the elates of the
various transactions on behalf of Miss Caney in the transfer
of stock could be ascertained it might throw some light on
the subject.
Mr. Chandless—All the defendants asked was fur some
reasonable account.

The Lord Chan:isnot—Perhaps if Miss Caney's broker is
alive lie could give some information.
Mr. Stecre said it had been ascertained that the books
were burnt in the great tic at the Royal Exchange.
Mr. Ch indless concluded his whir. 44 by asking his lord-
ship for an investigation ut law into, this questio'.
Mr. Steere followed on the same side, and, amongst other
points. urged that there was no consideration for the sum
of 4,3001. alleged to be held by Miss Caney for the plaintiff.
The learned gentleman had not concluded his argument
when the Lord Chancellor ruse, at Leff-past two o'clock, to
attend a cabinet council.

The appeal has already occupied the court seven days.

R1F116% :11:•711..
BRAWN v. KING -JUDGMENT.

Ilis Honour delivered judgment, and said this was a bill
filed by the plaintiff, who is the present holder of the pre-
bendal stall of Wiveliscomb, in the cathedral of Wells,
against the eaccutors of the lute Dr. King, who was a pre•
emus prebendary, seeking to set aside the sale of an estate,
part of the prebendal property, on the ground of fraud.
The property in question was usually demised for lives on
payment of fines, and on the sth of July, 1804, Dr. King
having purchased the interest under the existing lease, de-
raised to John King, his brother, fur the lives of his (Dr.
King's) three children at the old rent of 401. Ile then pro-
posed to sell his reversionary interest in thia property under
the powers of the act, enah'iner corporate bodies to sell lands
fur the redemption of the land tax, and by means of such
sale to redeem the land tax upon the rest of the prebendal
property. For this purpose on Ist of May, 18116, a memo-
rial was laid before the commissioners for continuing sales
under the land tax acts, but nothing further was dune
under that memorial. A subsequent memorial was pre-
sented in April, 1608, and at that time the sale was carried
out, and John King became the purchaser at the sum
of 4521. in trust for Dr. King. It was this purchase
that the bill now sought to set aside. The reversion
thus purchased by Dr. King was in part afterwards cold for
the sum of 2,0001., and the residue was conveyed to
Walker King, one of the defendants in the suit, on consi-
deration of his conveying other property to Dr. King. This
property had also been since sold by Walker King. Dr.
King died in 1827, and was succeeded in the prebendal stall
by Rev. B.C. Keen, to whom the present plaintiff succeeded
in 1833. The bill was filed May 23, 1818, and the case
made by it was that there never woe any valid assurance in
1808 ; that the lease of 1801 was invalid ; that the sale was
of property to a greater amount than was requisite for the
purpose of redeeming the land-tax. That the commissioner
were deceived by the statements made to them, and did not
properly investigate the matter ; that they never under-
stood that this was a sale by Dr. King to himself, and that
the consent of the bishop had been obtained by undue
means. That the property sold for 021. was in reality worth
2,0001.; that the sale must be taken to have been made by
Dr. King as trustee for the prebend, and that the act would
not authorise a sale of property of the description of the pre-
sent, which was of the nature ot eneyhold. The bill therefore
prayed that the sale of 1608 nu2lit be set aside, and the
deed dealt with as the court should direct, and that it might
be declared that John King held the property, subject to
the repayment of the money, in trust for the prebend—
that all proper accounts might he taken, and for an injunc-
tion, and for a receiver. The defendants by their answer
denied that the lease of 1804 was merged or vacated,
and insisted that the sale was valid, and that Dr. King
had used no undue means, and that the sum paid was the
full value, looking to the fact that only one-sixth of the
tines would have been due to the prebend—that the first
proposal was not carried out on account of the difficulty of
apportioning the sum to be paid under the act • and if that
proposal could have been carried out the prebend's share
of the 2,2001. would have been less than 4321.—that the
commissioners were not deceived, but relied upon the re-
port of Mr. Kingdon, who was an experienced surveyor—
that Dr. King always avowed that he was himself the
purchaser, and that the commissioners were fully aware of
it ; and that if the sale was set aside the prebend could get
no advantage during the lives of Walker King and James
King, the present lessees; and they insisted on the sta-
tute 57 George 111., cap. 100, which confirmed all sales
made under the superintendence of the commissioners
unless impeached within five years after the time when the
party seeking to impeach it was first in a condition to do so.
Upon this state of circumstances three questions arose—
first, whether this property was saleable at all under the
act, and if so, whether, apart from any question of fraud,
it had been sold ; secondly, whether under these acts Dr.
King could himself become the purchaser; and, thirdly,
if he could, whether the present transaction was tainted
with fraud. In support of the first question many argu-
ments were urged for the plaintiff, hut upon examination
they all resolve themselves into a legal p&nt, whether or
not the indenture of 1808 operated as a good conveyance,
if it did not, the plaintiff has a perfect remedy at law, and
nothing to the contrary is alleged upon the bill. The se-
cond question must depend upon the construction of the act,
and in coming to a conclusion, it was necessary to look to
the other clauses and provisions of that act as well as those
of former acts. Those acts were passed for a great
public object, and must therefore receive such a
construction as will carry out those objects, and
not such as will restrict them. Otis Honour
then went through the several acts, the 38 G. 111., c. 60,
40 G. 111., e. 30, and 47 G. 111., c. 76.) The object of
these statutes he considered to be to give the power of con-
senting to the sales to be made to the bishop and patron in
the first case, and subsequently to the commissioners ; but
the parties selling or buying remained the same as before
the passing of any of them ; and at that time there could
be no doubt such a sale would have been legal. But then
it was said that the universal rule of equity preventing
parties who were to sell property from becoming purchasers
would apply here; but he thought every case must he
judged by its own circumstances, and where the power of
sale was so restricted as it was in this ease, the danger whirk
had given rise to that rule of equity did not arise. On the
whole, therefore, if it had been necessary to decide that
question, he should have thought that Dr. King hail the
power to purchase. But he thought that the statute of
57 G. 111., c. 100, sees, 2.3 and 26, set the matter at rest.
By that rtatute informal sales were confirmed, provided
they had taken place under the sanction of the commis-
sioners, with a proviso allowing persons injured to conic to
the court for redress within five years. Then, assuming that
Dr. King had power to purchase, was there any fraud iu
this case, for if fraud hail been practised on the commission-
er, there had in fact been nu sale at all, and the plaintiff
would be entitled to relief. With II view of deciding that
question, he (the Vice-Chancellor) bad minutely examined
the whole of the documentary evidence. (here his Ho-
nour went through the evidence., which was extremely
voluminous) He wax! of opinion that the plaintiff had
failed to make out his case, and the usual rule, where
fraud was imputed and not proved, must be acted on ; hut
he thought, moreover, the length of time which had been
allowed to clips` before these proceedings were taken was
of itself enough to compel him to dismiss the bill. Many
parties who might have explained the different tranweetions
and whose evidence would have. been important, had died
in the interval. On the whole, therefor., the bill must be
dismissed with costs.

COURT OF QUEEN'S BENCH.—YESTERDAY.
SITTIMLIII IN BANC-O.—MVO. 1.01.0 CAtlrlit LI, Mo. JUSTICE I'AITZBOII,
*Ni, lit Jt MICR nit.lllll4lll.
TII6 CarZIN V. IN(111.04.-3UDWNT.NT.—TitS MtTROPO-
L MAN III'ILDINUe ACT.

This ease came before the court, and was argued upon a
return to a mandamus. Lord Campbell now gave judg-
ment. The question arose out of the Metropolitan Baild-
inga Act, i & 8 Viet., cap. 84. Complaint was made before
Mr. Ingham, the magistrate, of an obstruction to a public
highway by the placing of building materials on the foot-
pavement. It was contended before the magistrate that
the obstructions complained of were projections from •
building, to which the act of parliament in question ap-
plied, with the sanction of the surveyor of the district ; and
that the sole jurisdiction over each matters of complaint
was vested in the official referee under the act. Mr. Ing-
ham had agreed is this construction, and dismissed the

elloeplaine The defendant relied en the 6th section, which 1,
"meted that, notwithstanding anything to the contrary in
My eat of parliament, all buildings, &c., should be built
eouforintty to the reeulatious in the schedule specified ;
"and subject, in case of doubt, differenee, or eliseatistilC•
tics in respect thereof, between any pasties or
C 7
nsisaend the surveyor of the district, to the
ties of the official referees," de. According
te the &fondest's construction of that section, the effect
of the Matins wu to vest the sole jurisdiction of deciding
SE eneroachtnents upon ways, in connexion with buildings
within the operation of the statute, in the official referee.
The court were of opinion that the clause referred to had
the effect of vesting in the official referee the sole jUrifitie-
UPI to areautise questions respecting the rights and duties
eresioluil%be Metropolitan Buildings Act, and connected
lieltik operations, snub as questions with reference
tie Matt als and dimensions of walls, de., without the
Mee extended jurisdiction of deciding incidentally on
SOO which existed independently of the Building Act,
and Whisk right exist without reference to my building
opeeetiens. If the Avid T jurisdiction had been intended,
it would have burn eapresord in the act ; but it wu not so.
The power to Mae the regulations of the statute by the
official referee might be salutary, if confined to building
operations, but daugerous if extended to encroachments on
public ways. Ou these ground* the court were of opinion
that any right to any alleged footway which existed when
the 7 and It Viet., cap. 81, paseeel, was list taken away by
that statute ; and that a defence in respect of an alleged
encroachment would still prevail. The rule for •mandamus
to the magistrate to hear the complaint must, therefore, be
made absolute.

BAIL COURT.—YESTERDAY.
Pinnies is WUMA—liaras, Ma. Jessica Kam
Tue. Ql:sail e. Till ill'avicas or Losiws.—A NEW
011N9111*--CEILEWEARi.
Mr. Se.rjeant Bytes, with whom was Mr. Pulling, applied
for a rule to show cause why a writ of certiorari should not
issue to bring up an order of the London stolen.. Ile
grounded his motion on the circumstance that the re-
spondent (who WAS a magistrate) had sat upon the bench
during the hearing of the CAW. It appeared that his client,
Mr. Maenamars, had constructed an omnibus to carry 13
pmengeni—vii , five on each vide, and three sitting with
their faces to the conductor, and with their backs to this
horses. The affidavit stated that Alderman Wilson had
taken a very prominent part in the proceedings against
omnibus proprietor., and, considering the cross seat at the
top of the omnibus to he an infringement of the act, be
inspected the vehicle. and employed a man called Rowe, •
servant of the Aldermen of London, to lay all informatics&
against the proprietor. Sixteen inches were allowed on the
cross seat for tech person The affidavit further natal
that Alderman Wilma. being the teal prosecutor, sat as
judge on the eO4, and departed from his turn on the rots
to do so. Having heard the case, he gave Maenamara i.et
to consider whether he would alter his omnibus; bat that
gentleman. confidently believing that he hail constructed
his omnibus in conformity with the ~th and 6th Viet., c.
79, declined adopting the suggestion, whereupon (the affi-
davit stated) Alderman Wilson, in an excited manner, fined
Mr. Mummers la, saying, "Take that." Notice of
appeal against the dee.sion was given, Mr. Mummers, of
course, being the appellant, and Alderman Wilson the re-
spondent. !hiring the hearing of the appeal case the
alderm in was sitting on the bench. and conversing with
the ether lustier*, and on rumination of the omnibus
(which was outside the eourt. pnslueed according to notice),
Aldernitn Wilson was with the Recorder and aldermen when
they went into the omnibus, and they ordered iilaenamara
and some others nut of it, and stayed there shut up for 110111 C
time. When the party returned, Mr. Wilson again took his
seat on the l.cneh, and withdrew before the decision was
announeed, and the magistrates tin a confirmed the convic-
tion. lie (Serjeant Nylon argued that the conduct of
Alderman iVilson in sitting on the bench, being an late- •
rested party, was an interference with the jurisdiction ; and
such conduct would, he hoped, lead the court to grant a
certiorari. Ile quoted cases in support of this position.
There was also an objection to the conviction, viz., that it
stated together that the party ennvicted should pay a aim of
101., and in the event of nun-payment that • distress should
be imam!, and in the absence of sufficient &utmost that he
should be imprisoned.
Rule nisi granted.

COURT OF COMMON PI.F.AB.—YESTERDAT.
SITTI,IIII AFTER TIRM.
To-day settee was given that two or more of the puisne
judges of the court will sit as A Coast of A:opeal on Wednes-
day. Ith ; Thursday, sth; Mmsday, 9th ; and Tuesday, loth
February nett, to hose County Court appeals. Upon the
sane days they will also held 'Minas, and proceed in ths-
paler of the hisoneys now pendimr on the paper of new
trials, and in me, na ju.lament on certain alba matters that
will then by standing for the consideration of the court.