The Express.
London, England, 1853-01-28 00:00:00

ELLiorr.—Tum WINDINO-VP Arr.

This was an appeal from a decision of Vice-Chaneellor
Kiudersley confirming an order of the Muter, placing Mr.
llowatt and Dr. Elliott on the list of contributories of a
projected railway company entitled the Dover and Deal
Railway Company. The scheme was projected in 1845,
and the shores allotted in 1816. Previoi.e to that time ne-
gotiations were entered into with the South-Eastern Dail-1
way Company by which that company was to guarantee
the expense, of the Dover and Deal Company if they did
not succeed in getting their bill through parliament ; but
if they did succeed in obtainic,.: an act, the stock of the
cornpan7 would be converted in South Eastern stock. The
completion of this arrangement was communicated to all
the allottecs by • circular dated January 24, 1846, which
accompanied the letters of allotment, and by advertisement
In the newspapers; and it was added in that circular that
Huy shareholder wished he could have South Eastern
stock for his sham, but if that was not agreed to the de-
posits would be returned without deduction. Mr. Mowstt
and Dr. Elliott signed the deed, and paid their deposits.
Since then only one pound per share of these deposits had
been returned to them; and besides that, they had ben
plated by the Master on the list of contributories, and a
call of ss. per share had been made.
Mr. Daniel and Mr. Re:burro, for Mr. Mowatt and Dr.
Elliott. contended that they were not only not liable to be
plated on the list of contributories, but were entitled to
have the remainder of their deposits returned to them.
The arguments were preceeding when it appeared that it
was a point in dispute whether Messrs. Mowatt and El-
liott had received the circular above alluded to before or
after they had signed the deed ; and the cue was ordered
to stand over for the purpose of affidavits being made in
that respect.
The re.t of the day was occupied in a continuation of the
aegunu lit. in " Its Sharp," ► lunatic, and the cue was not
concluded when the court rue.

Boom NW= or via foul.
BRALN V. SYMONS.
. .

His Ilonour gays judgment in this CUB. It hail come on
on deepness to the Master's report, and the question to be
decided was, whether a good title was shown by the vendor
to a house called Clarence Rouse, in the neighbourhood of
(Roadster, end which had been sold by the direction of the
court. The Master had found and reported that • good
title was oat shown, and the vendor had excepted to that
report. In March, Ib3o, Williams Reeves Fold the messuage
in question to Thomas Cowley for 1,8.501., of which 8001.
was to be retained for the purpose of paying off a mort-
gage. Subsequently, the legal estate became vested in
&must Basle. The question that arose was, whether
any person could make any claim by or through Cowley.
It no each claim could be made, it was not disputed there
was a good tale. It appeared that the 1,8501. paid by
Cowley was not his proper money, but was money he had
as exenutor of • Mts. Eekley ; but he died without ezecut-
tug any deed of trust, and it was contended that he was a
mere trustee, and that his interest was merely equitable.
There 'des no doubt that the legal estate had been duly
muted in the mortgagees, and was afterwards conveyed by
them to the testator Beale ; and if the court was of opinion
that there was not sufficient evidence that Cowley was a
mere trustee, then it was ooateaded that as he was an ille-
gitimate son, and died unmarried, be had no heirs, and that
no escheat to the crown took place. With regard to the
first question, though
_he was inclined to think that
Cowley bad ao besefirtal interest in the property, yet he
did mot think the evidence of such a nature as to
justify the wart in compelling the purchaser to take the
title. Oa the next question he bad arrived at the conclu-
sion that, if Cowley had any beneficial interest, no escheat
took place. But then arose a question whether the title of
the montages wasgoted as against his crediton in other
words, ul ether a 'MOW of Cowley might not have ob-
tained arlatinisiraticm, and thereupon redeemed the siert-
rote. Now Cowley died in 1831, and, though ordinary
debts might be barred by the lapse of time, it might be that
a deed of covenant might come into operation, and he did
riot see how a good tiff* could be made out without affirm.
ism the principle that • mortgagee could bold th.i whole
property against his creditors. It was true that in the pr. -
erne ore the affirming of such a principle might be pro-
ductive of no injury, but if established it would apply in
every Woe where the mortgagee might have left debts far
exceeding the amount of the mortgage, and would do great
injustice, and would be a proposition contrary to both the
principles of this courtand to authority. He should, there-
fore, affirm the Muter's report, and disallow the excep-
Cone. As, however, the ground on which he proceeded
ditd red from that on which the Master founded his report,
be should not give eats.
Mr. Roupell said he was in a condition to produce addi-
tional evidence that Cowley had no beneficial interest.
Ili. Honour said then it might be mentioned again on
Saturday.
Mr. Itoupell and Mr. Shatter were counsel for the vat-
dor, end Mr. Loyd and Mr. Iloare for the purchaser.

Pen= Trerriummune ok.k. W. Ps,e worm.
Tln MIDLAND RAILWAY CO AAA 1T r. YHA AIIPAA-
OATS, NOTTIIIONAII, AND BOSTON, AAD RAATLAII J CS (.-
110 N RAILWAY cIIITAXT,

Mr Rolt ata Mr. 41;4 on behalf of the plaintiffs ap-
plied for an injonctios to restrain the defendants from
maim, Of inthoriung, a painting the Gnat Nathan,

or any other railway c•mpatty, t, use the plaintiffs' station,
and other accomusedationt at Nottingham upon the terms
mentioned in en award made on the :eh cf August, MO, or
otherwise, and to restrain th- said defendants from bring-
in.i, nr e•ino. or einhorieing. or permitting the Great
Northern Railway Company, or any other company, to
bring or use upon the plaintiffs line of railway between the
panetien at Culwick and the plaintiff,' station at Notting-
ham any locomotive or other engine, or other description
of moving power which had not been first approved by or
on behalf of the plaintiff., pursuant to the provisions of the
Railways Clauses Consoli tation Act, or any carriage in re-
spect to w filch r pr.visior of the sante act had not been
first complied wish. It appeared that by the various acts
of the tw companies., the defendants were empowered to
make a line in substitution of a portion of their original
line, commencing at a junction with the Nottingham and
Line In branch of the plaintiffs' line at Culwick, and the
plaintiffs:were precluded from charging any further sum
than the t ins due for the distance over which the traffic of
the Ansbergate Company was conveyed along the Midland
I Railway, with a reasonable charge for loading and unload-
ing go de, and for station accommodatioo, as sereed upon
between ;he two companies, or, in ease of difference, us
should be settled by arbitration. The defendant, never
made the whole of their line, but only so much as laid be-
tween Grantham and the junction with the Midland Rail-
way at Colwiek ; and it being agreed that the traffic of
the Amhergate Company should be conveyed into
Nottingham over the plaintiffs' line, and that the
raid company should have the use of the plaintiffs' station at
Nettingham ; the question of terms was ultimately re-
ferred to Mr. George Carr Glyn, the chairman of the North
Western Company, who made hie award an follows:—'• I
think it right to premise that the decision which lam
about to give upon the point referred to Me by the Mid-
land and Amhergate Companies is 'Mlded upon the een-
sideration of the existence of a full interchange of trathe
between the two companies, and of their working recipro-
cally for the accommodation of the public, end for mutual
benefit. A deviation front this course would fairly cause a
reopening of the pending questions and another reference
uoon them. On them considerations I decide—first, that
the sum to be paid to the Midland Company by the Am-
bergate Company for rent and service in the Nottingham
station for passenger tragic should be 60tH. per annum ;
secondly, that for the goods traffic the sum to be paid to the
Midland Company by the Arnbergate Company should he
per ton, and that the charge for cartage should be the
actual disbursement paid by the Midland Company." By
a subeequent explanation of his award, the arbitrator stated
that if the Arotnogate Company should require for any
views of their own a special cleik, the payment of his salary
should fall on that company, but that the Midland Com-
pany would of course be bound to furnish sufficient accom-
modation and a pia• c in the station for the receipt of parcels
and also for making up the daily traffic returns and ac-
counts. After the making of that award the Ambergate
Company used the plaintiffs line of rail., and the plaintiffs
found station accommodation. In the year 1852 the Great
Northern Railway was completed, and opened fur traffic
between London and York ; and since that time that com-
pany had become a competing line with the plaintiffs for
the traffic between London, Grantham, Newark, Lincoln,
Y irk, and other places. In M ay, 1852, the defendants, without
the consent of the plaintiffs, entered into an agreement with
the Great Northern, by which the latter were to work the
traffic of the defendants' line from the July following, pay-
ing suck tell as would, after answering all expenses, fur-
nieh a dividend of 4 per cont. on the paid up capital of the
defendants' company, with the privilege of paying them off
at par on giving Pit months' notice. The Great Northern
Company gave notice of this agreement to the plaintiffs,
and informed them that, as it would be the interest of the
Great Northern to promote traffic over their own Nue' it
would not be compatible with their interests that the col-
, lection and delivery of goods should be dime by tee Mid-
land agents ; and that therefore they should be ?lad to
know what portion of the goods station the plaintiff, could
devote to the uses of the Great Northern Com-
pony The plaintiffs then stated to the defen-
dants that they were advised that the swat l of,
Mr. Glyn, under which they had provided aceommeda-
tion for the defendants, would not apply to the altered
cireumet meter under which the traffic was to be worked, and
that they should not hold themselves hound to continue to
provide accommodation for the Great Northern. The secre-
tary to the defendants, however, informed them that no
alteration, would take place in the errangementa of the
Anabergate Company, and that traffic would not be booked
through beyond Grautham until an interview between the
directors of the two companies had token place. The
plaintiffs, however, found that this promise was not kept;
that goods were booked through, and the Greet Northern
advertised their trains to run from Ring's-cross to
Nottingham and that engines which had never
been examined by them, in accordance with the require-
ments of the Railways' Clams Act, ran over their
line. This was denied by the defendant.; and some fur-
ther correspondence took place, which ended in the plain-
defendants '

tiff. giving notice to the that any each eliginee
would be removed from their line. The defendants then
gate notice to the plaintiffs that they required additional
station accommodation, according to a schedule attached to
their notice, which the plaintiffs refused to comply with.
The defendants, however, continued to work in a manner
which the plaintiffs considered to be in contravention of
the agreement between the two companies, and the conse-
quence was the filing of the present bill.
The case was adjourned at she rising of the court.

BEmis Ilscs.CaLvaiLLoi STI M.
GOODWIN y. FIELDING.

Mr. Daniel and Mr. H. F. Bristowe appeared in support
of a m"tinn for an injunction to restrain the defendants,
E. A. Fielding and T. Franks, from assigning, selling,
demising, or otherwise dealing with certain primises
known as the Beulah Spa Hotel and Gardens, at Norwood,
in Surrey, and the licenses, stock in trade, and effects unon
the same. Tho motion (which stood over from the 2:ind
of December last, on the defendant, E. A. Fielding, under-
taking not to deal with the licenses in the meantime) was
now renewed.

Mr. Malin. and Mr. W. D. Lewis for the defendent
Fielding, Mr. Bacon and Mr. Deuce for the defendant
Franks, opposed the motion.
It appeared that the plaintiff had agreed with the defen-
dant Fielding for the purchase of the hotel and property,
and business, at a specific price, and that subsequent to
that agreement the removal of the Crystal Pie.sec to
Sydenham had increased the value of the property, and
it had come to the knowledge of the plaintiff that the de-
fendant Fielding had subsequently agreed to sell the pro-
gty and business to the defendant Franks. At this hear-
tact, not alluded to in the pleadings, and of which the
plaintiff was ignorant at the time he filed his bill, were
stated. _ _

The N ice-Chancellor thought that he could not in the
present stage of the proceedings do anything as to the in-
junction. It appeared that very material facto had come to
the plaintiff's knowledge after the bill was filed, which
rendered it impossible to grant the injunction as the bill
now stood. The bill would require to be amended, setting
forth those facts, and the better course would be for things
to remain in statu quo, with liberty to the plaintiff to
amend, without prejudice to the undertaking, and the
costa of the motion to be meta in the cause.

COURT OF QUEEN'S BENCII.-YESTERDAY.
Brivsus a Basec—licross Lop CAMIIILL, Ma. Jv•ncs Cogs.

MOE, AMU ML MTN'S Wtgeniusi.
MILLER T. LEATHER AND CLOUGH.—REI

ILICOVZIL ♦ PONT.

Lord Campbell delivered the judgment of the court ?is
this case, which was argued in November last. His lord
ship said this was an action of replevin for the recovery of
a pony, of which possession had been taken by the defend-
ant Clough upon the representation of Leather that it had
been stolen from bhn. Upon the trial a verdict was found
for the plaintiff, with leave to the defendant Clough to set
aside that verdict on the ground that he was a constable
acting in the prosecution of his duty, and therefore pro-
tected by the 6 & 6 Will. IV., e. 76. The question before
the court was, whether or not the defendant Clough could
set out the fact of his being a constable, and protected as
above stated, under the plea of non cepit. Their lordships
were of opinion that the facts could be set out under the pie*.
Rule absolute.

Tirirlitzmx.--o: Tex ANBZIWATII RAILWAY CONIC ANT.

hiANDAMUS TO

RAILWAY.

Lord Campbell delivered judgment in this ease. As-
suming that the writ of mandamus had properly issued, the
court was of opini at that the return, stating that the capital
specified in the act had never been subscribed, and that the
company had never been able to obtain the whole 'amount of
the said capital, was a good &sewer. The mandamus com-
manded them to complete • certain portion of their line.
In their reply they showed that they were as unable to do
this as if their powers had expired ; in which latter case it
bat been settled that a peremptory mandamus ought not to
i'sue. The judgment of the court mast, therefore, be for
the defendants.
Judgment for the defendants.

BAIL COURT.—YESTERDAY.
lierrutos to Basco.—ltsrou Ye. iron= Eid.a.
?az QCXXX a. TUX REV. E. L. MuLcsatimd •:41)
OTURR3.—CIXTIOILAUL
Ur. Manesty applied for a certiorari to remove into this
court WI indictment against the defendants for an alleged
riot in Cumberland, arising out of an endeavour on their
part topeotect some land of which the rev. defendant wds a
trustee. It had been said that the riot had arisen out of on
election which took place in July last, but that was cot
true, the election haring nothing whatever to do with it.
It appeared by the affidavits that a leading article had been
published in the Carhale Journal, containing a very exag-
gerated account of the transaction which was likely to pre-
judice the defendants' case, if tried in that locality. The
defnidants also wished to have the assistance of Queen's
counsel, as the indictment had been preferred at the in-
stance of the principal agent at the election.
Mule granted.

COURT OF EXCHEQUER.—Yrzreepsy.

ILTFUTOIM BANCO.7II/7(111 Till —IOID CIIIIMBAIION. Ne. BAION

..-
r• 11114. MM. EAU. ALIAMON, AND Mt. BARON PLAIT.
WAVE/1 V. ktIDDLITON.-JVDOMENT.

This ease came before the court on a demurrer toe plea.
The Lord Chief Baron now gave judgment. The plea was
on a deed of arrangement under tits 12 and 13 Vie., c. 106,
sr c. 224, and the question at issue was ouc of very groat
public importance. By the 224th atction of the Bankrupt
Law Consolidation Act it was enacted—" that:every deed or
memorandum of arrangement now or hereafter entered into
between any such trader and hie creditors, and signed by or
on behalf of six-sevenths in number and value of those cre-
ditor. whose debts amount to 101. and upwards, touching
such trader's liabilities and his release therefrem, and the
distril.uti,.n, inspection, conduct, management, and mode of
winding-up of his estate, or all or any of such matters,
or any matters having reference thereto, shall be as effectual
and obligatory in all respects upon all the creditors who
shall not have signed such deed or snentotandopt Of arrange-

ment as if they had duly signed the same ; ai.d such deed or
memorandum when so signed shall nut be or be liable to be
disturbed or impeached by reason of any prior or
sule,equent act of bankruptcy." It had been con-
tended by Mr. Manesty, on behalf of the defendant,
that this clause was completely retrospective in its
operation, so se to take up any deed that had
theretofore been executed, entered up, signed, and com-
pleted, although the property had been completely divided
among a certain class of creditors ; and he had contended
for this upon the ground that this was the grammatical
construction of the act. The rule of construction for which
he urged hal been frequently the subject of notice in that
court. If the court were to adopt his construction the
consequences would be not merely that a deed executed in
the year 1847 was valid, about which time this question
was raised, of giving to a number of creditors a power of
releasing a debtor, notwithstanding the opposition of other
creditors; but there was no doubt that the rule would just
as well apply to a deed executed by creditors five, ten,
twenty, er forty years ago. And although it might not be
right to look to extrinsic matters for the purpose of con-
struing a deed by which they referred to the history of
legislation on the subject of bankruptcy, it was
really difficult to believe, unless under the most
stringent compulsion of language, that the legis-
lature could have meant to enact a clause
apparently so inconsistent with the general course of de-
cisions, both in and out of parliament, ever since law had
been a study in this country. The court was of opinion
that by the use of the word t' now," an the act of parlia-
ment, the legislature contemplated nothing more than this,
that whereas there miirtit already hare been certain negoti-
ations and arrangements entered into before the passing of
the act, although in equity they were binding upon the
parties, they should come within the scope and operation of
the act, provided they were in such a condition that three
months' notice might be given, which the act provided as
one of the conditions Ili cessary for the purpose of justice
between those who had been the moving parties to the
arrangement and those who opposed it. The court was
therefore of opinion that, the deed in the present case did
not come within the scope and object of the section of the
statute which had been referred te, and that the demurrer
must be allowed.
Judgment for the plaintiff accordingly.

JUDGES' CHAMBERS.—YEsmDAY.
Heroes Xs. JVIVISCL'EaI.r..
Lcsehnv v. GTE.
Another application was made in this matter in addition
to the one mentioned in our paper of yesterday. On the
part of Mr. (lye, of the Italian Opera-house, Covent-gar-
den, a summons was taken out calling on the plaintiff, Mr.
Lumley, of her Majesty's Theatre, to show cause why leave
to plead several matters and to demur at the same time
should not be given. The action arose out of Mille.
Wagner not fulfilling her engagement it her 3lsjesty's
Theatre, and the action is to recover compensation in da-
mages, the plaintiff alleging that he had sustained serious
damage inconsequence.
Mr. Creasy appeared as counsel for the defendant, and
Mr. Lewis (Lewis and Lewis) for the plaintiff.
There was a long discussion on the summons.
Mr. Justice Erle referred the matter to the court, the
plaintiff undertaking to appear, and four days' notice to
plead to be given pending the application.
ARCHES COURT.—YESTERDAT.
Biro s &a Joni Worm
TEN OFFICE OP AIME PROXOTED lIT lIVILDER AGAINST
NATHAN, CLERK.
The defendant, the Rev. Henry Nathan. incumbent of
Fishguard, in Wales, who appeared in form:, pauperis, gave
in a defonsive allegation, which, after sums reformation,
was admitted.

COURT OF BANKRUPTOT.—YEsTEnDAT.
Ein.as Els. CAMMIASSIONIM iiOl.BOlD.
IN RE MILKY AND MILEtI.

This was the last examination in the case of Henry and
Chas. Miles, drapers, of Limchouse and Cambridge-road.
The accounts extend over a year and a half prior to the
failure in September last, and show a sum of 1,1291. duo to
creditors, with assets estimated at 1311. Tl.o profits had
been 2741. ; trade expenses, 345/. ; drawn out by the part-
ner, 7411 ; losses, 2711.
Mr. I'ulling opposed for the assignees, who contended
that the bankrupts had not eccount,d for their takings dur-
ing the last two months of their trading.
Henry Miles, one of the bankrupts, was examined as to
the items in their acc,unts. It appeared their purchases
Ind amounted to 2,7831., towards which they had paid
1,413/. ; the remainder had gone in trade and house ex-
penses, a great portion of which were unvouched. They
had kept no account of their ready-money takings. Thi y
had borrowed three sums of 201., 301, and 301., of Mr.
Rawlinson, in February, April, and June last; for which
they gave a bill at two months in June, and paid it in
August, in one amount. It took all their spare cash, but a
pound or so. I 0 U's were green for the money at the
time it was lent; nothing was specified as to interest; but
81. was added to the bill for it. He had pledged goods in
February and March ; and on the 11th of August gave a
judge's order to a creditor for goods, payable in a month.
They had then past of the 881. paid to Mr. Rawlinson iu the
house. About that time he sold a sofa for H. which bad
cost 41. Was sued in the County Court for 151., and asked
for a month. Had sold goods to Nathan, of Bethnal-green-
road, amounting to about 401., for which cash was paid.
His furniture, estimated at 301, had sold for 81. 13s.

By Mr. Lawrance (for the bankrupts)—We debited our-
selves with 10 per cent. profit. The average is from 10 to
15 per cent. We had sellings-off," winch were a mere
puff, but helped off our goods. We never sold under cost-
price, or sent goods to auctions. Had never removed goods
from his premises, nor did ho believe any one else had done
so. The whole amount of goods he had pledged wu 31. as.;
they were some old goods which he wanted oat of the way.
The payment to Rxwlinson appeared in the ledger.
Clarks the other bankrupt, was examined as to
the large amount of his drawings, 3871. in 18 months. Part
of this, he stated, had gone to defray the expenses of the
Mile end shop, including salaries. A farther sum of 1691.
was entered as trade expenses.
His Honour allowed the bankrupts to pass, observing
that many of thy, objections were such as might be raised at
the certificate meeting.
_

ELPOIR MI. COIMISSIONII EVANS.
IN RN CHARLES R. VOGUE.-JUDOMENT.

The bankrupt was a solicitor, at Windsor. The case has
been several times before the court, and on the last occa-
sion was adjourned f.r judgment on the certificate meeting.
His Honour said—This was an application for a certifi-
cate on the part of Voules, who was declared bankrupt on
the 31st of October, 1631. He passed his last examination
on the 17th of June, 1852. At a meeting for granting or
refusing the certificate, on the 23rd of September, 18.52, it
was suggested that the bankrupt had not accounted for a
coasiderable sum of money. Although I make it a rule
not to allow the question as to accounts to be raised in op-
! position to the granting the certificate, yet on this occasion,
in consequence of the official assignee stating that from
illness he was absent at the time the bankrupt passed his
last examination, and that he should have stated the objec-
tion then taken, I thought it right to make an exception,
and I adjourned the meeting, for the purpose of the bank-
rupt giving the account required. The account is given, and
is admitted to be sufficient. The assignee's solicitor has not
thought it right further to oppose the granting of the
bankrupt's certificate ; but it is opposed on behalf of seve-
ral creditors. The first pound of opposition is, that the
bankrupt wee guilty of breaches of trust ; and in support
of this charge the cases of Chell and Shoolbred were
relied on. The ease of Dock was clearly not a breach of
trust. The bankrupt may have made himself liable for
some default as an attorney, but it was no breach of trust.
In the case of Winch and Chell, the bankrupt raised
the money as trustee or executor, but did not pay the whole
to those who were entitled to it. In these cases the bank-
rupt had acted so far improperly in not paying the money ;
but I cannot say that be has been guilty of any breach of
trust that ought to affect the certificate. Tho breach of
trust which would justify withholding the certificate
must, in my opinion, be the case of a trustee, in breach of
his trust, selling out stock or disposing of other property, and
using them for other purposes in his business. In the case
of Shoolbred and Co., Mr. Robinson's evidence proves that
there was no fraud. Bad book-keeping is also an objection,
made, I think, with justice. Excessive expenditure
is also justly complained of. I can never allow that a person
is justified in spending his creditors' money for the purpose
of keeping up appearances. Application was also made
that I should give the opposing creditors their costs. The
assignees in this case are not accused of not having done
their duty. It is not suggested that the creditors applied to
the assignees' solicitor to oppose on any grounds specified
by them. I therefore cannot accede to this request. It has
also been requested that I would make the certificate con-
ditional on the bankrupt paying a certain UM of money out
of his future earnings. I must s,y that I do not think I
could with propriety make any such condition. The result
of such a condition would tend to lessen the bankrupt's ex-
ertions, and, if known, must deprive him of all credit. If
the certificate were to be void on non-performance of the
conditions, then the creditors under the bankruptcy would
be entitled to come in equally with the creditors who trusted
Min alter the certificate, and without any knowledge of the
condition. Had the bankrupt's application for his certifi-
. elite been definitively heard within the usual time, I should
hare a'ljourned him for six months ; but, as long a period
' has elapsed since he was made a bankrupt, and since he
passed his last examination, I shall grant him a second-class
certificate without further delay.
Mr. Lawrance was for the bankrupt ; Mr. Dupree con-
' ducted the opposition of the creditors.