The Express.
London, England, 1851-11-21 00:00:00

itatba fittelfitgence.

EQUITT COURTS.—TESTERDAY.
Berens sue Loans howls or Arrest.
RZYNELL o. Swam—Sense e. REYNELL.
This was a motion by the defeudant to the original bill
that the hearing of the petition of appeal from a decree
made in favour of the plaintiffs by Vice-Chancellor Wigram
and the proceedings under that decree might be
stayed until certain documents, a discovery of which
was alleged to have been avoided in the course
of the proceedings below by a fraudulent mil-
' representation of the plaintiffs and their solicitor,
had been produced. The suit was by bill and cross bill by
Sir Thomas Reynell (now deceased) and Lady Elizabeth
Reynell, by revisor, on the one side, and Captain and Mro.
Sprye on the other. A decree in the court below had been
obtained by Sir Thomas Reynell and Lady Elizabeth Rey-
nell, and Captain and Mrs. Sprye by petition of rehearing
had appealed against that decree. rhe present motion
proceeded on the ground that a discovery of documents
having been required by the cross bill, that discovery was
given by Sir Thomas Reynell, but without including a
certain case and opinion or a copy thereof, it being clear
that the schedules to the answer of Sir Thomas Itcynell
ought to have included that case and opinion, if in the pos-
session of himself or of his solicitor. The affidavits in sup-
port of the motion were to the effect that the answer was
in that respect untrue—that the documents in question
were, in truth, at the time in the possession of Sir Thomas
Reynell or his solicitor, and that they were untruly and
dishonestly concealed by Sir Thomas Repel!, and that ho
wag knowingly assisted in concealment by his solicitor.
The Solicitor-Gleneral, Mr. Bethel), and Mr. Terrell,
were heard in support of the motion, and tkey conteuded
that the court would exercise its authority over the solici-
tor, who was an officer of this court, and compel the pro-
duction of the documents withheld ; and that for that pur-
pose it would stay all proceedings under the decree, as
well us the hearing of the appeal, until such documents
should have been produced, and the defendants put in
possession of all the materials to which they were entitled
fur the proper conduct of their case.
Sir Fitzroy Kelly and Mr. Shaptcr, for the plaintiffs in
the original suit, were not called upon.
Lord Justice Knight Bruce said, that assuming for tho
purpose of the argument, and for that only, the truth of
the case advanced in the support of the motion, yet the ap-
licants would not be entitled to the order they asked. It
was not competent to the court to make an order staying
the hearing of the appeal, without laying down, and in
fact, creating an entirely new system of practice. If the
facts alleged by Capt. Spryo were true, as to which no
opinion could be offered by the court, the proper course
would be by criminal proceeding, or a proreeding in
the nature of a criminal proceeding, or by a new
bill of a supplemental nature of name other kind.
With regard to staying the proceedings in the cause, ho
thought there was no ground for such an application. The
motion would, therefore, as to this, be refused, and with
costa to be paid by Captain Spryc.
Lord Justice Lord Cranworth concurred.

An order was then made by arrangement, postponing the
hearing of the appeal till the kith of December neat, in
order to afford time to the defendants fur the inspection of
various other documents, which the plaintiffs consented to
deposit for that purpose with their clerk of recur& and
writs.

RITTIVG! AT

RTPORR TR! Loam COAMT.T.COR,

IN ILE ROYAL BANK OP AI:811%11.1A, Ex PAIL fr. BUT-
WINDINO-UP ACT..-I'AItrSEKSUIP LIAI.IIL-
_ _

.....,..
This was an appeal, by the official manager, front a de-
cree of Vice-Chancellor Sir James Knight Bruce, under the
Winding-up Act. It is a question of some importance,
touching liability as contributories. The partnerehio was
constituted by deed executed in August, 1834. Mr. Sutton
was an original shareholder, and had signed the deed. In
1810 and 1811, he transferred his shares, for v due, to a Mr.
Malcolm, who bound himself, according to the terms of the
deed, to pay all calls that might he made thereon, and to
observe all the covenants of the deed of settlement. 'the
question turned on the construction of the 108th clause,which
was in these terms: "'That whenever, by any means what-
soccer, any share shall become forfeited or shall be dilly and
effectually transferred to a new proprietor, then and in such
ease, and not before, the responsibility of the former
proprietor in respect of such share shall eta-c and
determine, and such former proprietor shall be ex-
onerated and released from all subsequent eiaiins and
obligations in respect of the same shares, an•t from
all future obligations of performance of the covenants,
rules, regulations, and provisions affecting or which ought
to be observed or performed in respect of such shares ; and
the entry of such forfeiture or transfer in the share register
book shall be legal evidence of such share or transfer."
Mr. Sutton, therefore, claimed to he dischan:eil Flynn all
liability in respect of the shares which he had held in the
company. The Viee-Chancellor held that he was discharged
from liability under that clause, without, however, entering
into the question of a contingent liability of pail., in the
same position as Mr. Sutton, inter se, should any of these
be held liable to the creditors of the company. Against this
decree the °Mehl: manager appealed.
Mr. Holt (with him Mr. Matins and Mr. Daniell) was
now heard in support of the appeal. Ile took exceptions to
the decree on two grounds: first, that the interpretation of
the 10Sth clause was on a question not raised between the
official manager and the party sought to he charged ; and
secondly, that the portion of the decree which held that the
court was not to consider the contingent liabilities was con-
, trury to the principle of the Winding-up Act. With re-
spect to the first objection, it was contended that as between
the creditors and the transferees the 108th clause was not
binding, however much it might be binding as between the
transferror and the tranferree. On the second point it was
urged that the proceedings under the Winding-up Act were
in the nature of an extinction of the equities between the
parties, to obviate any future proceedings, such as actions
at law or suits in equity between them, and was contrary to
the principle laid down by Lord Cottenham.
Mr. Roundel! Palmer (with him Mr. Hetherington and
Mr. Combes) was heard contra.
The Lord Chanceller took time to consider his judgment.

!AMU MS lbarra or TIM ROLLS.

TOE NORTH VIE7T-EWitrIL.W-A-; COMPANY C. TOE COW.

FORATION OF LANCASTER.

Mr. Roundel' Palmer moved that the defendants in this
suit be required to pay into court the sum of 3,4001., ad•
milted in their answer to be in the hands of their treasurer,
and the further sum of 1,0001. admitted to have been re-
ceived by them, sad to have been advanced by them to the
local board of health. It appeared that the corporation had
entered into u contract with the company for the sale to them
of certain lands belonging to the corporation, but that a dis-
pute had arisen as to whether Barbadoes street was included
to the contract. The company took possession, and alter
601110 negotiation, the corporation brought an action of
ejectment, and obtained possession, and then the com-
pany paid, under protest, the purchase money
agreed upon-6,0000., and took a conveyance iu
which Barbadoesetreet was not included. The cor-
poration had applied 1,6001. of that amount to
pay off a mortgage, and had advanced 1,0001. on loan to
the local board of health. By the Lands Clauses Consoli-
dation Act, chap. 69, it is enacted that in cases where cor-
porations are vendors, the money must be paid into court,
and applied in the purchase or other land for the corpora-
tion. This money had not been so applied, and the rail-
way company were liable to pay the money over again.
Under these circumstances, he moved that the money bo

paid into court.
Mr. Loyd opposed the motion on the ground that it wan
seeking to obtain that by motion what could only be ob-
tained by decree.
The Master of the Rolls directed that the 3,4001. should
be paid into court, but not the 1,000/., saying he did soon
the principle that the fund should be secured pending
litigation • and the 1,0001., though not applied in the Linn-
ner directed by the act, was secured.

Buoas VICIFCSAIICILLOI Mom
THIHITZES OP THE RIVER LE► V. THE NEW RIVIta
COMPANY. _

Mr. Calvert moved foiit;i;junetion to restrain the de-
fendants from proceeding with some works, the nature of
which did not transpire, but the effect of which was stated
to be to diminish the quantity of water to which the plain-
tiffs were entitled.

Mr. Teller appeared for the dercndanta ; and it was
arranged that the case should stand over until the last day
of term.

Bernie VICFCILANCMLLOIIEsassa.
noun v. SMITH.
An injunction had bun granted to restrain Mr. Allen
Smith, who had been a tenant of the plaintiff, from sel:ing
or disposing of any hay, clover, or straw, produced upon
the farm and lands rented by him of the plaintiff, situate in
the parishes of New town-Linford, Marlfield, and Barden, in
the county of Leicester, and from removing from off the
said farm and lands such bay, clover, and straw.
Mr Bacon and Mr. Reguier W. Moore now moved, on
behalf of the defendant, to dissolve the injunction, on the
ground that there was no sufficient evidence of the custom
of the country which had been set up as to the landlord's
right to have the produce of the farm left on the farm. Tho
agreement to which the parties had come was verbal, and,
except by express stipulation, it wu submitted that a tenant
under a verbal agreement was not restrained from selling
the produce from off the farm.
Mr. Malins and Mr. Metcalf, in support of the injunc-
tion, said that the custom was supported sufficiently by the
evidence, and submitted that the agreement did not Mkt)
the cue out of the custom. They also alleged that the
tenant was a trespasser, having held over idler the expira-
tion of his term.

The Vice-Chancellor thought he must continue the in-
junction, and that the agreement was not sufficient to Pre-
vent the ease from being controlled by the custom of the
country, but the plaintiff must undertake that, on the value
of the produce being ascertained, he would pay the amount
within a week, the defendant to undertake to give up pos-
session, and the coots of the motion to be costs in the
CEDES.
RAYLEY V. TEE EAST AND WEST INDIA DOCKS AND
JCNCTION RAILWAY COMPANY.
Mr. Dialing, Mr. Follett, and Mr. Logic, supported a
motion for a sequestration against the company for commit-
ting or continuing to commit a breach of an injunction
granted, and an undertaking given by the company to the
plaintiffs on the 3lst of last January and the Bth of Febru-
ary, when the cart was before the N'ice-Chancellor Bruce.
It appeared that the plaintiffs are the owners of a rope walk
neer Poplar. They alleged that an undertaking to • ,
soi.
lid bridge over tho railway, to the satisfaction •
Brunel, had been violated.
The opening of case wasnot concluded when ••••••\
4 .11,
robe, and. the motion was ordered to stand over. -. s .?.; •
.
✓
II :4
• k

7

1

COURT OF OtIIII2IIIIIENCH.—YEirIEADAT.
emu., is uses—slieeee gar Osseamea Ms. gunnies Pareare,
stn .fe-ries musses.: sue Ma. Rena "1""'
TUB Oren, O. NIWIIAN.—LIP2I..
In this ca.: (I bra/spirt of which appeared in last even.
ies's Ergrew) • rile W been obtaiead a fee days ago,
coifing on the prosecuM. Dro jyhlllf, to show came why
the rile for a criminal bahmedow. which he had obtained
Wm" •
tbe defendant, should mt be enlarged until the first
day of E ester Term.
ttir F. Thetiger now appeared to how cause, and eos-
seeded th it the rule must he dial s!ers'. Where • perm
bad taken ukon himself to Anoka the character of another,
he ought to be ready at the moment to justify his slander.
Thera might he circumstances is which that mbaciplo
might he relaxed, but he did not think they AMA in
this me. The application was founded on two allintela.
That of Dr. Newman stated that the matters white 1111111114
the stabled of the libel occurred at periods of time Ing
prised, sad at parts beyond the seas, and that it mai
IM
impossible for him to answer the several mattes. obi*
coustitutvl the alleged libel unless sufficient time iele•
given to him. Then there was the affidavit of one of the
fishers of the Mel, who stated that he believed it to be
necessary that some person well acquainted with the
French and Italian languages should go to Naples, Rome,
and otter places, to investigate the circumstances re-
lating to Dr. Achilli. Therefore, the ground on which this
applieation fur delay was put was, that an opportunity
should be afforded to Dr. Newman and the publishers of
the libels to send a roving commission to investigate the
whole life and conduct of Dr. Achilli fur the limit 32
years, and it was remarkable that the defendant
did not even vouch himself to a belief of the
truth of the charges which he had made Now, he was en.
tnnnely apprehensive of showing the opportunity which
ma, prayed fur by this &petit ation ; for, cousideriog also the
parties were--the nature and character of the libels on Dr.
Achilli —that one of the parties had turned from, and the
other to, the Church of Home—he must confess he could
not shut his eyes to tice possibility of ex parte affidavits
brief very easily procured in Italy, without the possibility of
any itiqui:ry into the character of the witnesaiw, or any means
of examining into the troth of their evidence. And as to
persons making affidavits out of the jurisdiction of this
court, the prosecutor would not only ho without say power
of contradicting or scrutinising their testimony, but they 1,
would left free from any punishment by the court. Dr.
Newman might, if he would venture to do so, plead the
truth of the charges under G and 7 Viet. cap. 96, and that
it was for the public benefit that ho had published
them. It would be hard to allow Dr. Newman to apply
fur commission which, in this vague and indefinite
way, would give him an opportunity of fishing up
natters in support of his lifscls ; but that would
nut lit so unjust as the present application, for if • commis-
skin were inoted to examine witnesses, the prosecutor would
have an oppoirtuaity of cross-ezamining them. The case of
Pecitieo and the Moriiiii9 Herald, which had been referred
to by the Attorney twieral in moving Mr the rule, was nut
in point. That was a libel in a letter purporting to be front
their correspondent at Atheus, and time was given to en-
able the proprietor of the Miriam.) herald to inquire on
what authority he had made the communication. That
care WWI diluent Crum the present, because there was a di-
rect applicatiun to the elianuei of communication; and it
was by consent that the rule was enlarged. Ile trusted
their lordships would not grant the time sought for.
Mr. Ellis followed on the same side. The affidavits,
which were drawn se ith great caution, did not say that
either On defendant or the publishers believed the libel to
be true, tout merely in elfeet that it the court 'would give
the defendant a few months additional times, he thought ha
could fluid rime persons in Naples and Nome who would
swear to the truth of the libels.
The Attorni.e.tf..• •

_ in support of the rule, urged
that when the cooduct of a public man was assailed, and
each conthiet was alleged to have taken place out of the
realm, the court should grant sufficient time to obtain evi-
dence to meet the application which bad been made to the
court. As to the suggestion that a commission might issue
to ezansine witncwes, his learned friend was in error, because
is a criminal case a commission to examiuc witutows could
aot be ismed.

Lord Campbell—But you can do what would be more
satishictory, you ran put your witsiesact into the box.
The Attorney-General said it would be impossible to meet
the CAS,' without getting evidence from abroad ; and no in-
justice would he done by the delay --it was only a question of
tune. It could nut be said that their lordships were not
ooespetent to deal with any description of evidence ; and if
in the end the rule for a criminal information should be
dirchari:ed, it would by nu means be final and conclusive, as
the pioorutor might then proceed by indictment.
Mr. bad, Icy, on the Wile side, contended that the rule
might to he made alsvolote, not only for the ends of jus-
tice, but for the protection of the court itself, which should
require that a party making such an spplication as that
which had been made by the prosecutor, *lnstant come with
clean bands.

Lord Campbell was of opinion that the rule ought to be
discharged. He by no means considered it to be on in.
flexible rule, that if a libel was published imputing some
miscoesluct to • prosecutor in a foreign country, that he
•heall be instantly called upon to justify the truth of what
be alleged. With regard to rseifico's care, it could not be
miesidered as • precedent, because the rule had been en-
larged by consent; and, secondly, if it hod been resisted,
be should have been of opinion that it was • fair applica-
tion, for the libel consisted of • letter published in a Lon-
don journal by • correspondent in Greece ; and it was ex.
pressly stat•dl in the affidavit upon which the application
was mask that the correspondent w•, then living in °recce,
and there wee every reason to believe that he would be able te
I•stly tbe truth of the statemesit. This, however, was
diler•et case, f,a it was a nest grave and serious impute,-
Mon against the character of the pneweutor, and there IMO
nu intimati,ct in the affidavits of a single witness on whose
testimony lie. Newman had souk his statements, or from
whom he h o h said that he should be able to prove them.
He should believe him to be the last moo who would in-
vent such stories ; he might, therefore, on common
rumour have brought forward the charges without having YY
any means whatever of legally proving them; and he
might now wish to send out a commission whereby he
might, perchance, be able to find out some pereans in
Naples, Home, or some other parts of Italy, who would
support the charges he hail made. That would be placing
the prosecutor in a very unfair situation. It had been
pointed out by the learned counsel for the prosecutor, that
DT. Newman did not say in his affidavit that he believed
the truth of the statements himself; and this was an im-
portant feature in the case. Under these circumstances, the
court thought they ought not to e•large the rule. There
would sfterwarda be an opportanity of proving the charges
which he had made, if Dr. Newman could show that they
were true before • jury.
Mr. Justice Panama did set recollect any precedent for
the punting of such • rule. He remembered in the pro-
emial's of Derry O'Meara at the suit of sir Hudson Lowe,
is which he was counsel for the deknelant, where it was
secereary to obtain • great mew sM !melts of foreigners, •
similar rule was made absolute, bet that was by consent.
Mr. Justice Coleridge and Ms. Justice Wightman con-
carreel.—liule discharged.
_ _ To■ Quail p. bum liatt,—Ltert..

I=4 In this c;;thidtiniinti.-Th; proprietoraia üblialier
of the Melvin iiimerunneysper, wet Snail xat the
sittings aftve Let Ns la London N mthat
.wder *sr emu* Mink en Willie' Chalon •
Weldrynt seMeekittedent misialgot asi wrarlat
coniennes, On Whig *Denby. Me Jury endedsesem
dense* is mum en mann et the sang party feeling
mideli rained hettisen the eilli peeties into Which the Wes-
leyan body ha hem MAMA. dime section of which—that
ea* the reform party—the Witieries Times wu the ae •
katrwledged organ.
It appeared that a pen* * the =me of Charlotte Irons,
who hid lived la the enridee * fir. Clarkson, became
•
=I t and sheep* Nn with being the father of her
n September, int ye* sue sr two articles sppeand
is the jeers* is question seating the fact, without men-
den*. any name. On the 27th November an Meanie-
den reek plan Were the anupetetas, when a barrister op-
wand fee Mr. MAN* sad ear a lengthened inquiry,
he the wane *whisk the west end Mine witnesses were
examined, the magietenem diembised the nee on the
irmad that they wen het semilin that there wu any cor-
• reberatin evidence. Oa the I* Deestaber an article wee
paha* in the Wesicynn Illons, inianation that the
peseenne was the father *the MOM, lad luting the in
weft *an 'ninny by tho entharamse Into the facts ; sad
the eine pegeeentelami a ill mod imjimetiml apart of the
poseedieup lean the negioratse. Then IMO two ant
synths is the pager wthenuady. beet width it night be
_imiLthat abs-weiler bithendlle. Munn le be guilty,
the amp bed ben dimmined.
8= The*" mew nand kr the jutheneut of the
anti spin whisk oaken wen pat I. by the datenion
wild
ilh=l'
The of the former stated that he lived weer
. Heillimelleid, bat was the pieprieter et the Weskyais
Tim* Tbn the India is quintlen Inn net written by
bin sr knew* to bin wadi dry we puldiehed ia that
ampipat ; thet the undo eemigimineti et did met hewed
to Venn the peeteeeter sr pithy, but nerdy that a
ere toes wokee. out tor farfaity ythe Mink* needog
wr the enthen
The thidetek et Kr. Cleans set knit tint the libels had
Una net lendeue be hi thaneter ; that he had been 30

years ia the Westerns mousezion, bat bed bath removed 1
from kis Wit maim, after oily we year's reakinsekth in. I
nemeses of thecae* which the stsionseith la the Welshman I
Tunes bed produced Ile the denied the truth of the
statement meth by Charlotte hem.
The Attorney-Gement) and Mr. IL Cbemben thee ad-
dressed tbe avert ea behalf of the defendant ; and Sir F.
Timelier for the moseeeter.
Ms. Janice Anthm, in givft the jedgment of the
mut, mid that although the leibmi resided at a dis-
tance from London, where the them ie gaieties was
minted, be mast have hi& teeth Iminthellp a the *strikes
of the articles, looking se the 'seise of Meat which bad
been made on Mr. Clarkson. If lolly ens Miele bad been
inserted, the fact of the deasilest net having thee
mat of it would have bad nos ids ea the essert
when four libels in eveneden bed bees publedeed they
could not suppose the dolesisst *Ws beta Slimes* of
the* It wee must Wimps Is some that the slaty seed
by Charlotte troth was cermet slew the elesisith which the
magistrates had come to; mod there wee foratideneals Zia r
nity in the articles complained se. Tildes lass emmiders-
tiun the recommendation of the jury, sad all the skeane
stances of the case, the sentethe of the court was that the
defendant should be imprisoned in the Queen's Prises kr
the space of four months.
IN as GOILDOI.--CIZTIOSAIII.
Mr. Hawkins moved for a writ of certiorari to remove
into this court a conviction by Sir George Carroll, whereby
Mr. Gordon was onleml to pay 1,0141. It appeared that
Mr. Gordon had born the secretary to a friendly socivy of
the Ancient Order of Foresters, the members of which had
divided into two societies, one consisting of 4,000, and the
other of 1,000 persons. Mr. Gordon held a sum of 6071.
belonging to the society before the separation, end about
the distribution of which sum there was • dispute. Mr.
Gordon held the money in trust for both until that dispute'
could be settled. Ile had however been summoned to the
Guildhall, and, under the Friendly Societies Act, 13 & 14
Viet., tined double the amount he held in his
sion for refusing to give it up to the claimants ; rat
(Mr. Hawkins) contended that the magistrate had no
jurisdiction under the circumstances.
lisle nisi granted.

BAIL COURT.—YrsrriDeT.
OPTIMA is 110.4.... —lianas NIL JC.TICI Este.
RAT Ea C. OULINSoN.—Lsor or EYIDLNCI.
A few days ago Mr. Manesty moved, on the authority of
the new Law of Evidence Act, for • rule to show cause
why the plaintiff should nut state upon oath whether the
several allegations contained in the affidavit of the defen-
dant were true, and whether ur out the plaintiff had in his
possession any documents containing entries relative to the
matter in dispute between the plaintiff and defendant, and,
if so, why he should not produce the same for the inspec-
fiefs of the derviulant.
Mr. Justice Erle, who then reserved his decision, now
said that the statute relied on did not warrant the first part
of the application, and he could uuly grant the rule to 'hew
cause why all books, documents, &c., relating to the trans.
actions between the parties should not be produced, and to
allow the delendunt or his attorney an inspection of the
same, giving the plaintiff, however, full power to withhold
Irma the observation of the other party all such books, do-
cuments, &c., as did not relate to the question at issue.