The Express.
London, England, 1847-05-07 00:00:00

lath Enid!twice.

HOUSE OF LORDS.
ement—The Lard Chancellor, Lord Brougham, Lord Campbell, and
other Perm

TAPP VALE RAILWAY COMPANY V. NIXON AND
OTHEYO.—QUItSTION BETWEEN LAW AND EQUITY.—In
this appeal against a decree of the vice-chancellor, directing
accounts to he taken between the parties, Sir F. Kelly and
Mr. Stuart were heard hit Monday contending that the
appellants ouekt not to have been dragged into a court of
equity urn dispute* between the respondents, whereas the
subject nutter of the suit, so far as the appellants were con-
cerned, wan only fit for an action at law.
The Lord•Chaireller moved the judgment of the homes
this morning. From the consideration he had been able to
give the cue he was so satisfied that the suit wee properly
brought, that it would be a waste of their lordehips time to
hear the counsel for the respondents. The rule which go-
verned his opinion upon the case was laid down by Lord
Redeadale, to "O'Connor r. Spaight," (1 Scholcs and
Leroy, p. 309), saying " It is a proper case for equity when
the account is so complicated that a court of law would be
incomeetent to examine it upon a trial at nisi pri', with all
necessary accuracy. This is a principle on which courts of
equity constantly act, be taking cognisanee of matters which
though cognisable at law, aro yet so involved with a
complex account that it cannot properly be token
at law, sad until the result of the account, the
justice of the ease could not appear. Matter of account may
indeed be made the subject of an action at law,but an account
of this Mil is not apr .pereubject for that mode of proceeding."
His lordship then stated the circumstances of the present
ease, and said that the party, Storm, who advanced the
away to Nixon to complete his contract with the railway
empany, required security, and the security given to him
ma a power to receive the price, of the works executed fr. ra
the company. The contract, which Nixon clone had before,
was altered to a joint contract, and then :.he two parties,
Nixon and Storm, became joint contractors ; in consequence
of which accounts grew up between themselves, and between
them and the company. The company made payments
I generally to one or the other, without reference to the par-
tinder works made under the contract. It was impossible
to investigate these accounts in au action at law. And lords-
, isg to the rule laid down by Lnrd Redesdale, and to the facts
of this case, he was of opinion that it was a fit ease for a
Court of Equity, and that the Vice-Chancellor's decree wu
right.
Brougham had heard only part of the argument, hut
hearing the reasons stated by the Lord Chancellor, he fully
concurred in them.
Lord Campbell said he heard the whole of the areuments
for the appellants, and be was clearly of opinion that the
fact. Red accounts in the cause were so complicated that it
would be impossible to investigate them in a court of law ;
and if an action were brought it would be found indispensa-
bly necessary to refer the matter to an arbitrator. On the
sere opening of the case on the trial, the judge would im-
mediately recommend a ref. rence, a recommendation which
no wise suitor would resist; to that after much expense to
being an action, an arbitrator would have to take the ac-
count., not so well as a master by the machinery of the
Court of Chaaeery could take them. The Vice-Chancellor's
decree was then affirmed with costs.
WILLCOX V. FAREP.LL.—INTERESTED WITNESB.—COM-
yrrENEY —This was au appeal from a decree of the Court
of fission in Scotland excluding a witness under tbeee
contstatic.s issue having been directed to try whether
the plaintiff and others were the nearest lawful heirs of one
Alexander Wood, who died intestate, a witness wee called
for the plaintiffs, who raid that she was their paternal aunt,
and that the deceased A. Wood left landed and personal
property. Objection was taken to her further examination
on the ground that she was an interested witness, as being
one of the nest of kin of the deceased. She would share
with the plaintiffs in his personalty. Other objections were
made, and a bill of exception. was presented to tho judge's
ruling. The court allowed the exceptions. Mr. Squirt
Wortley was heard for the appellant. Sir F. Kelly and
Mr. Robertson were heard far the respondents, but the
arguments were not concluded.

EQUITY COURTS.
Belay the Master of the Rolls.
_ _

FEISTEL r. Kxxo's COLLEGE.—ASSIONMEICT OF THE
INCOME OF A COLLEOE FELLOWSHIP TO SECURE A BUM
Or MONET AND INTEREET, GOOD IN EQUITY.—This case
was argued some time since, and the Master of the Rolls to-
day delivered judgment. He mid the defendant, Charles
Buller, by aa indenture of 28th December, 1812, in con-
sideration of 3001 lent by the plaintiff, assigned the income
of his fellowship in King's College, Cambridge, to the
plaintiff, on trust, to reassign it if the 3001. and interest were
repaid on a certain day, if not, a power of sale was given to
the plaintiff. and he was also empowered to receive the emo-
luments. Notice of this assignment was aiven to the col-
lege in January, 1843, and in September, Buller not having
paid any interest on the 3001., plaintiff requested the college
to pay the income to him instrai of to the defendant. In
November, 1844, the bill was flied by the plaintiff, stating
that the college had refused to pay any part of the income to
him. Buller, in his answer, stated that he was entitled, as
a tenon, to a proportionate part of the fund. of the college ,•
but he wished it to be inferred that he had been impesed
upon, and that the contract was usurious, and he submitted
that the income et a fellowship was not assignable, inasmuch
as such an assignment would defeat the intention of the
founder of the college, and that it was contrary to public
policy. His lordship thought that the evidence did not es-
tablish the case made by Mr. Boller, and that the indenture
could not be impeached on the ground of usury, and that
there was nothing in the nature of the income to which a
fellow was entitled, from which it could be inferred that it
wee not assignable in equity. The cases cited at law were
net applicable. It was said that the duties of a fellow were
such, as to make an assignment of his fellowship contrary is
public policy. It might be contrary to the intention of the
founder. rtna to the statutes of the college, but it was not on
that account void on the ground of public policy. The
advantages enjoyed by a fellow were great, and it was
right it should be so, that the world might reap
some benefit from his pursuits ; but the duties
of a fellow were intended for the college, and not for the
public, except in a very remote degree. It wee admitted by
the defendant that the office of senior fellow was not con-
nected with the administration ofjustice between the fellows
of the college, neither was there any cure of ir.uls attached
to it. And there was nothing in the case which made it in
any degree resemble those cases where the assignment was
soul on the ground of public policy. What special interest
could the public have whether Buller was a fellow or not?
He did not propose to interfere in any way with the general
income of the college, but onl that portion of it given to
Buller. As to that portion Bullet had effectually assigned it ;
and there was nothing to induce the court to interfere with
the assignment. He shculd therefore order the college to
pay to the plaintiff all sums hereafter to accrue to Buller as
his share of the income, and for that purpose the neeeseary
accounts must be taken, not of the general inoorae of the col-
lege, but of that part apportioned to Buller; and a receiver
must be appointed, or any other mode adopted fur securing
the interest of the plaintiff which should be satisfactory to
the college. The coats of the college 'mum be paid by the
plaintiff ; but he must have them again from Buller.
BAKER T. SOWTER.—PURCHASER NOT DISCHARGED BT
REASON Or IRREGULARITY IN THE DECREE.—The Muter
of the Rolls also delivered judgment in this ease, which was
a motion to discharge a purchaser on the ground of irregu-
larity in the decree directing a sale of real estate. He con-
sidered that although the stems would have probably been
varied on a rehearing, still there was no allegation of want
of jurisdiction, or west of parties; and for the reasons dated
by Lord Eldon in Jones r. Lloyd" (9 Ves.), and Sir Win.
(Brant, he thought the purchaser ought not to be discharged,
but under the circumstances he refused the application with-
out oasts.

L&NCASTER T. EVORB.—ROMIT TO IIECOVEIit INTIRROT.
—The Master of the Rolle also gave judgment in this ease,
and said the plaintiff was entitled to recover a rum of money
from the estate of Sir John Powell Pryee. The question
was, whether he wee entitled to interest on it ? The Claim
agaiust the estate of Sir J. P Pryee wax to be reoeupsd a atom
paid by the estate of Lady Pryee for Si, J. P. Pryee, and in
respect of such claim he thought that the legal personal re-
presentative of Lady Pryee would not be entitled to reenter
Interest; and, therefore, the plaintiff, resting his claim on
her right, was not entitled to do so.

Before the Vice-Chancellor of Magian&
Cot-Musa e. DOCRILANE.—QUIMEIox Or DOMICILE.--
A question in this cast was raised as to the domicile of a tes-
tator named Peter Cochrane, who was the younger son of
J. Cochrane, of Clippings, in the parish of Kilbarchan, in
Scotland. The testator was born fr. ♦ugust, 1751. At
about 15 yeah of IP he was apprenticed to a surgeon at
Kdbaerthan, and est his aprreuuceship he went to the East

Indies, where he lived for 43 years, and pmeised se a medi-
cal oecer in the service of the East India Coeapsny. The
testator marred is India, where be amassed considerable
property, mid in the year 1818 he retired on a pension, and
returned to Scotland. Prior to this, in April. 1789, he bad
become possessed, by purchase from the trustees of his
father's creditors, of the family estate at Clippings, consist-
ing of 60 Scotch acne of land, upon which, in
the year 1815, • mansion-bowse and offices suitable for a
large family residence, had, by his directions, been built.
The testator took up his residence at his house at Clipping',
in June, 1820, and maintained a large eelablishment there.
In 182.5, he left Clippings for Swiaerland ; at this time he
diagnosed all his servants except two. In May, 1826, the
testator went to Paris, and resided in furnished apartments
in the Boulevards till the month of July, 1829, when he left
Paris on a visit to Scotland, spending • few days in London.
While in Edinburgh he instructed an attorney to draw his
will, which was accordingly done, and the testator having
returned to London, the said will was finally settled by Jim
and executed there. In November, 1829, the testator re-
turned to Paris, and resumed possession of his apartments In
the Boulevard.. He afterwards removed to other apartments
in the Place Vendome. On the 18th of June, 1831, the tes-
tator, being in 111 health, commenced • journey to England,
and died on his road, at Beauvais, in the evening of that
day, The chief part of the testator's property at the time of
his death consisted of the real estate at Clippings, in
Scotland, worth about 10,0001., nearly a million of
rupees in India, a large sum of money In England, and
about 30,000 French rents*. The suit was originally instituted
for the administration of the testator's estate, and upon a
reference to the master to ascertain the domicile of the
testator, the master found that his domicile, at the time of
his death, was Scotland. The case now came on upon ex-
ceptions to the master's report. The plaintiff claimed as
adonni,trator of the several persons who were the testator's
next of kin at the time of his decease, contending that in
the event" which happened there was an intestacy as from the
time of the death of the testator. Mr. Cooper and Mr. W.
Morris appeared for the exceptions, and Mr. Bothell and Mr
Gifted in support of the master's report.
The Vice-Chancellor said he considered the rule of law to
be clear that the domicile of a person remained, until by
evidence it could be shown that he had manifested an inten-
tion of changing it. The testator was forty-three years in
India, and then went to reside in Scotland, after which he
gave up his establishment and went over to Paris. His
Honour thought that the evidence only went to show that
the testator left Scotland temporarily, and that he intended
to reside for a time somewhere on the continent, and then
return to his estatel He seemed at one time to have fancied
that a Swiss education would be • good thing for his son, and
therefore took him to Switzerland; but he soon altered his
mind and he went to Paris, where he took up his residence
in apartments. The furniture was partly taken to France
from his house at Clippings, and the rest was left packed up
in Scotland ready for removal, but it was not removed. That
in some degree evinced an intention on his part to return
when he had finished his residence abroad. Under all the
circumstance, he thought that the evidence did not go to
prove that the testator had any intention of changing his
domicile, and that consequently the master was right in
finding that he was domiciled in Scotland at the time of his
decease.

Before Vior-Chaneenor Knight Bros.
CLOVOR V. RATCLIFFE.—ODD FELLOWS.—ILLIGAL As-
VIGIL/10PS —The bill in this case was filed by certain mem-
bers of the Loyal Highland Laddie Lodge of the Independent
Order of Odd Fellows, in the Mancheexer and Salford district,
who alleged that they had been improperly excluded from
the benefits of the society, and prayed relief in that respect
against the officers of the lodge and other persons. A de-
murrer [or want of equity, and far want of parties, was
argued on a former occasion. when the demurrer on the latter
ground was allowed, and liberty given to amend. A report
of this appeared in this paper on the sth of March. The
bill having been amended, a demurrer for want of equity
was again filed to the amended bill, and now came on for
argument. Mr. Rolt and Mr. R. Palmer, for the demurrer,
contended that the society of Odd Fellows was a society
coming within the provisions of the 39th Geo. 111., e. 79,
and 57th Geo. 111.. c. 19, which were directed against illegal
associations. The society, also, war not properly represented
here. The bill stated that there were 300,000 members of this
society, which was divided into lodges, deputations from which
lodges met annually, but theme annuli meetings had no
power over the particular lodges.—The Vice-Chancellor
asked whether this meeting was not what was called an
ochlocracy —Mr. R. Palmer : Yes ; there war a sort of United
States of Odd Fellows. The doenine upon the subject of
parties might be stated thus ; that there is only a sufficient
representation where thee, is an adequate representation of
every interest on the record to argue all the questions.—Mr.
Russell end Mr. Hargrave for the bill argued that the
society was charitable, and therefore within the exceptions
of the acts of George 111., though the Attorney-General
was not a necessary party to this suit. There was no neces-
sity to take the °puns& of a court of law upon this subject,
as had been suggested by his Honour.—The Vice-Chancellor
at the close of the argument said that he would give his
judgment in nest term, but regretted that the matter could
not be settled by a justice of the peace.