The Express.
London, England, 1847-11-08 00:00:00

MILITARY.

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PORTsmOt:Tit, Not•. 7.—The let battalion of the 69th
regiment has arrived here foot Manchester preparatory to tealvartarg
on board the Bel::ole f‘br Marta. Three COTRINUIIA of the lir talkie
arrived on Thursday, ;ad toe remaining three and brad quarters
yesterday.

MEDICAL.

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ROYAL COLLISOI or SUROZON4.—The following gentle-
men haring undergone the neormarry ttfeinitioaa for the diploma,
were admitted member. tf the college at the meeting of the court of
examiners on the Stu inst., rin : —Yews. T. H. Wardlesworta, Bory,
Laseentdre; G. C. Hyde, Landon; H. J. Hinman, Landon; A. J.
b. pa Brampton ; it. Jones, Maentworag, Merionethshire; C. A.
Guernsey ; T. Janes, Comm, Merionethshire ; . nil O.
C. P Oile altar. At the same meeting of the court, the follow-
ing pawed their examination for naval surgeons, Ms.:—
Mews. J. Peter., T. IL. Costello, Getald Yea, L. N. Tucker, H. W.
Hornell.

SPORTING.
COLILMSG.
NEWMARKET NEETIKO.—FRIDAT.—ChipposhAm
—The baby was won by Mr. °Mode's Dsruu ; Mr. Backwash's
Bute ran up. The Cup was won by Mr. Gi.lrtVe Girl of Kent Mr.
Osbabliatotie's 1 Tinning= ran up. The Gsks arse -----"••—•"
Dobnie• Dot; his Daphne ran up. The Port nudist.—
Gillett*. Greet Western; Mr. Ituekworth's Ito--
Rutland thanes were won by Mr. Duckwirth's
Donn% Makes by Mr. Fyant's Guaarus.

11111P-._
7. • _
Eat') intrUtgentf e‘" "
EQUITY COURTd. 10 ;
IstNre the Loa ChaOcc,r. .;•• 4 V'
Iv THE Marrau 131:0114EttION.
Swaustod applied Kr a hearing
114:

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Itcfore the

or England.

golfrbt Bruce.

rapt's petition without hie attendance in court. He had
been cow micted to the gaol of Huddersfield, three years ago,
for nunitisfaitery answers before the country commisaioner,
and he lay in prison since, th, re bring no funds to enable
him to be brought up to London. There was an act paned
three years ago authorising the Lord Chancellor to order the
country commissioners and their registrars to hold sittings in
bankruptcy in different towns within their respective dis-
tricts.—The Lord Chancellor That act was paned for
another purpose ; fur the convenience of the creditors, and not
of bankrupts. His lordship afterwards said, considering the
circumstances, he would hear the petition neat Friday
morning.
SHOILE O. SHORR.—RILEANE or OBLIGOR IN A BOND
BT OIILIGER AICAPTINO Tat BOND OP ANOTHER.—This
was an appeal from an order of the Vice-Chancellor of Eng-
land. The forts were few. A Mr. Smith, having lent
2,0001. to Mr. Sidney Shore, took the joint and several bond
of him and his father, Samuel Shore, for repayment of
the money. The iiiterest on the bond was for some time duly
paid at a bank in Sheffield, in which Mr. Oftley Shore was a
partner. On the death of Sidney Shore, Smith took Offiey
Shore's bend for the debt, "in lieu of the former joint
bond." Samuel Shore died, and an administration suit was
instituted in this court by his grandson. The Sheffield
bank, in which Offiey Shore was a partner, baring become
bankrupt. Mr. Smith CAMS before the Master. to whom it
was referred, to take the accounts in the administration suit,
and tendered proof of the debt against the estate of Samuel
Shore. The Master refused to admit the proof, on the
ground that Smith had, by taking the new hond, released
the estate of the obligors in the first bond. The Vice-Chan-
cellor eonfirmed the Master's decision.—The Lord Chancel.
for rose, after hearing the point argued, agreed with the
Master and the Vice. Chancellor, and dismissed the appeal.

Before the Master of the It lie.
The faster of the Rolls heard consent petitions and short
causes ; but no question of any interest arose.

CR AWFORD V. THE CURATE' AND HOLYHEAD RAIL-
WAY COHPANE—INJUNCTION TO ERSTRAIPI THE COM•
RANA' 11t0H TAILING LAND DISSOLVED.—This was a
motion to dissolve an injunction granted by the court to
restrain the defendants, the Chester and Holyhead Railway
Company, from taking or entering upon such Jain/ of certain
lands belonging to the plaintiff as were not within the limits
of deviation marked on the plans, except for the especial pur-
pose for which the defendants, by the Lands' Clauses Corm-
lidati• n Act, were authorised to enter upon the said lands ;
without the consent of the plaintiffs, or until the full value
thereof should have been ascertained. When the injunction
was obtained it was stated that the plaintiff had objected to
the company taking more than a portion of bis land ; that,
consequently, the railway company, having entered into the
usual bond as security for the.whole of the purchass-money,
took possession of the plaintiff's house, and actually removed
the furniture, and compelled the plaintiff and his family to
turn out when he was wholly unprepared. The lands in
question were situated at Flemondeatal, in the neighbour-
hood of Chester, and contained about two acres.
Mr. Stuart, Mr. J. Parker, and Mr. Speed, in support of
the motion to dissolve the injunction, contended that the
company had fall right to take the plaintiff's land. An act
of parliament was passed in the 10th and 11th years of the
present reign, which was entitled—" An act to authorise an
extension of and the construction of a station in connexion
with the Chester and Holyhead Railway," and by the 4th
section it was enacted that, subject to the powers of deviation
contained in the Railway Causes Cousolidation Act, it should
be lawful for this company to make and maintain the said
extension, and the said station and the works connected
therewith, in the lines and upon the lands delineated upon
the plans of the railway." It had been said that because
the ward' " subject to the powers of deviation in the
Ra 'way Clauses Consolidation Ad" were used, that the ttom-
piny had no Dower to take lands for the erection of a station
beyond the limits of their line of deviation ; but it was clear
that the Extension Act had two objects—one for extending
the line, and the other for making a station; and there
could be nn doubt that the e snap Inv ha 1 power to take
the whole of the plantiffs land fur the station, which was
one great object of the act.
Mr. Thithell and Mr. C. Hall, in support of the injunction,
contended that the words of the Extension Act were re-
strictive, and could not be held to apply to any land which
the company were not authorised by the LandeClanses Con-
solidation Act to take, and that they could not go beyond
their line of deviation so delineated on their plans.

The Vice Chancellor said the real question was, whether,
attending to the language of the special act, and the papers
repr eentiag the plans, the company had a right to take the
whole of the pleintirs land without regard to the limits of
the line of deviation. It was expressly stated i■ this act
that the object of the company was to make a new station,
and, though he thought the legislature might have used
words which would have more fully described the powers
eonferred upon the company, still he considered that the
language was sufficiently explicit to show that the intention
of the legislature was that they might take the whole of the
plaintiff's land for the purpose of their station. The injunc-
tion must, therefore, he dissolved, and, as it was obtained
upon a misapprehension, the plaintiff must pay the costs.

Toe GREAT WESTERN RAILWAY V. THE BIRMINGHAM
AND OXFORD JtiNCTION RAILWAY.—This case, the parti-
calory of which have been very fully before the public in the
ease of " Mozley v. Alston," now comes on upon demurrer
to a bill by the Great Western Railway for specific perform-
ance of an agreement entered into by the Great Western
with the Birmingham and Oefold Company for the purchase
of their line, together with that of the Birmingham. Wolver-
hampton, and Dudley Railway. Sir Fitzroy Kelly ap-
peare d on behalf of the demurring defendants, but had not
concluded hie address at the rising of the court.

BARKER V. NORTH STAFFORDSHIRE RAILWAY COM-
PANT -IRTUNCTION.-Mr. Daniell moved, ex parte, for a
special injunction to restrain the defendant' from entering
upon a piece of land at Sandbach, in Cheshire. being No. 166
on the railway plans, and for leave to give notice of motion
for an injunction as to other piece, of land and salt-works
belonging to the plaintiffs. He said the company had been
in treaty with the plaintiffs for the purchese of the lands, but
the negociatinns had been interrupted, in consequence of the
company applying for an amended act. On the 4th of
October last the plaintiffs were informed that the company
bad entered upon a portion of the land, and, supposing that
this might have happened through the inadvertence of the
contractor, the plaintiffs applied to the company's solicitor,
who said it was not intended to take possession without the
plaintiff.' consent. On the 30th of October. however, the
plaintiff. were d with a bond, under the seal of the
company, preparatory to the company taking possession, by
virtue of the 86th cause of the Lands Clauses Act. This
bond WAS insufficient, and not conformable to the notice.—
The Vice-Chancellor granted an interim order till Friday as
to the piece of land in question, with leave to give notice of
motion for Thursday.

SIMMONS O. SIMMONS.—WHITHER CHATTELS BELONG-
-1110 TO THE WIER WHICH ARE ontrren IN TER MAR-
RIACE SETTLEMENT UPON THE FAITH OP A PROMISE BY
THE HUSBAND TWAT THEY SHALL BR ENJOYED IN THE
SAME MANNER AS IP INCLUDED THEREIN CAN AFTER-
WARDS RE AAAA 7f HT THE HUSBAND JURE MARITL—
Quimte.—Upon the marriage of the plaintiff and his wife
certain premises, the property of the latter, including
amongst other things the house No. 3, Wilton-street, Gros-
venor-square, were assigned, together with " the fixtures
and fittings up," to trustees upon trust for the wife for life
for her separate UM' with divers remainders over. The
marriage was solemnised in 1842, shortly after the date of
the settlement, but differences having arisen between the
parties a separation soon afterwards ensued. Prior to the
marriage the house in Wilton-street, with the furniture and
fixtures therein, had been let, by parol demise, with the
concurrence of the plaintiff, to a Mr. Grieve, who had ever
since occupied it as tenant from year to year at an entire
rent of 3001. a year. The defendant, the wife, had
been permitted since the marriage to receive the whole rent,
she accounting to Mr. Rogers, one of the trustees, f0r.40/.,
part thereof, in respect of part of the furniture in the house
of which he was the owner. The bill, which was filed against
the wife, the trustees of the settlement, and the parties in.
terested in the rejoinder, after setting forth the above facts,
went on to state that the furniture and tenant's fixtures in
the house (other than the portion belonging to Rogers), and
which prior to the marrisge had belonged to Mrs.
Simmons, were not comprised in the marriage settlement,
and that, therefore, they became upon the solemnisation of
the marriage the property of the plaintiff, jure mariti. The
bill then stated that by reason of the demise to Grieve being
made at an entire rent with the concurrence of the plaintiff,
he (the plaintiff) had no remedy at law in respect of the fur-
niture or of the portion of the rent due to him in respect
thereof, and that the wife and trustees had frequently
threatened to determine the tenancy of Grieve, and then sell
the furniture in question, and it prayed that it might be de-
clared that the said fixtures and furniture were not comprised
in the marriage settlement, and that the plaintiff was in
right of his wi‘e entitled to the same, sebiect to the demise
thereof to Grieve; that the plaintiff might be declared enti-
tled to a proportional part of the rent in respect of such
fixtures and furniture from the time of the marriage as well
as for the future. The hill also prayed for an injunction to
restrain the wife and the trustees of the settlement from
parting with the said chattels, and, if necessary, for a re-
ceiver. The defendant, Mrs. Simmons, by her answer, stated
that upon the treaty for the marriage it had been intended,
both by herself and the plaintiff, that the whole of her pro-
perty, including the articles in question, should be included
in the settlement, but that on the draft of the settlement
being produced to the plaintiff, he objected to the in-
sertion of the schedules of the furniture and fix-
tures on the ground of expense, and remarked that they bad
better be omitted, promising that in case they were so he
would never interfere, and that everything should remain in
the same state as if the articles had been included. The
answer then stated that, upon the faith of that assurance,
she (the defendant) consented to the omission from the set-
tlement of the furniture, except such part as consisted of
futures and fittings up.
Messrs. Romilly and Montague for the plaintiff contended
that the evidence did not prove an intention to settle the
articles in question, and that their omission in the settle-
ment was a strong ground fora contrary presumption. The
defence at most amounted to a parol promise on the part of
the husband, and was insufficient to take the case out of the
statute of frauds within which it clearly fell. Nu fraud was
set up. As the house and furniture were let at an entire
rent, it would be difficult for the plaintiff in respect of his
portion of the furniture to recover possession at law ; nor, as
be had concurred in the letting, could he bring his action of
tracer. The only remedy, therefore, was by hill in equity.
—Mr. Role, Q.C., for the defendant, Mrs. Simmons, sub-
mitted that the tenant's Sutures as well as the furniture
passed order the words " fixtures and fittings up ;" and,
secondly, that as their omission in the settlement
had bun agreed to by the defendant upon the faith of

the plaintiff's promise, the latter would not now be allowed
to set up the statute. To allow him to dodo would enable
him to use the statute for the purpose of pretesting a fraud.
The case was analogous to those of specific performance of
contracts relating to land with parol variations; tr to those
in which a party in confidence of a parol promise by another
omits to make certain provisions, gifts, or arrangement for '
other persons, by will or otherwise ; and in which such pro
miss will be specifically enforced in equity against the pro-
misee, although founded on a parol declaration, creating a
trust contrary to the statute of frauds.—Mr. Melina, Mr.
Barber, and Mr. Bent, appeared for ether parties.—Mr.
Hominy in reply.—His Honour slid it appeared clear that
the articles in question were not comprised in the settlement,
and that at law they belonged to the husband jure mariti.
The defendants had urged circumstances upon which they
claimed an equity. Those circumstances, however, fell
short of fraud, which indeed formed no part of the defend-
ants' case. All that had been proved was a promise on the
pert of the husband, and a reliance upon his honour by the
wife. That was not sufficient to take the case out of the
statute of frauds, the parties having by agreement omitted
the articles from the settlement. It had been said that the
husband being plaintiff, be would be compelled to do equity
before the court would grant relief. The court, however, had
always disclaimed the right arbitrarily to compel a person
merely because he was plaintiff, to give property to another,
when, by a suit at the instance of the latter, he could not be
compelled to do so. With respect to the past rents, the
plaintiff had clearly no equity. The only equity (if any)
would relate to the future rents ; and before deciding that
question he would read the pleadings and the evidence.—
Judgment deferred.

COURT OF QUEEN'S BENCH.
_ Sittiny in Banco. _

THE QUEEN O. FONTAINEXORZAU.—IS THERE AUTHO-
RITY TO TAKE AFFIDAVITS IN PARIS IN AID OF INQUIRIES
IN Tisza COURT ?-9ir F. Thesiger, Q.C., moved for leave to
move in this case when the defendant should be brought up
ter judgment, on affidavits to be sworn in the course of such
• period now to commence as the court might fix. Affidavits
had been sworn before a British consul in France by persons
resident in Paris, and on those affidavits the application that
would be made when the defendant should be brought up
for judgment would be founded. It appeared, however, after
consulting the books, that these affidavits had been sworn
before a person who had no authority to take them. This
court had not in Paris a commissioner for taking affidavits.
There was no net of parliament which gave • power to ap-
: point persons for the purpose of taking affidavits abroad in
, aid of the inquiries in the courts of this country.—Lord
I Denman : It is a disgrace to two civilised countries that foci-
, lilies do not exist for such a purpose. You shall have any
reasonable period that you may require. Application granted.
MOORES. LAPRO.—ACTION FOR A SUNOEON'B NEGLI-
GENCIL—Mr. Knowles, Q.C., moved for a Moto show cause
why the plaintiff's verdict should not be set aside and a non-
suit entered. The action was brought to recover damages
for the alleged injury to the plaintiff's health, occasioned by
the defendant's improper treatment of the plaintiff when
suffering under a dislocation of a joint. The declaration de-
scribed the plaintiff's malady by the words " wound, frac-
ture, bruise, complaint, and disorder ;" and it was sub-
mitted that under none of these words was the plaintiff at
liberty to give evidence of a "dislocation."—The Chief
Baron, however, was of a different opinion, and the evi-
dence having been received the plaintiff had • verdict. It
was now urged that the ruling of the learned judge had been
wrong.—Lord Denman said that it was unfortunate that the
pleader had not received instructions that would have
enabled him to insert the appropriate word, but that, never-
theless, the court thought the ruling of the Chief Baron
right —Application refused.

r.VANS e. B!LL.—WOAT AMOUNTS TO • CONVERSION
or Goons.—The defendant in this case was an attorney,
and a client of his held a bill of exchange and a promissory
note, on which the plaintiff in this axe was liable. Both
these instruments were overdue, and the client required
some security to be given for their repayment. The plain-
tiff gave this security by putting the defendant in possession
of some furs, which were to be returned on the payment of
the bill and note. Proceedings were taken on boon instru-
ments. These proceedings in both cases came to an end, and
, the costs were taxed. This taxation occurred on the 12th of
I April, and within the hour a clerk to Messrs. Mayhew the
attorneys for the present plaintiff went to the defendant's
office and tendered payment of the money. The clerk saw
the defendant himself, and made the tender to him, and de-
manded the furs. The defendant answered that the busi-
ness had been under the direction of his managing clerk,
who was not then in the office, but who would call
on Messrs. Mayhew and receive the money, and return the
goods. The clerk of Messrs. Mayhew returned to his master's
who treated this as a refusal to deliver the furs, and imme-
diately brought an action of trover to recover them. Within
• very short period of time after his return the clerk of the
defendant called at Messrs. lilayhew's, to receive the money
and restore the furs, but the action had then been brought.
The cause was tried before Lord Denman, who held that
these cirrumstancea did not show a conversion, and that

consequently no action was =untamable. The jury re-
turned a verdict for the defendant. Mr. Serjeant Shee now
moved for a rule to show cause why this verdict should not
be set aside and a new trial granted. He contended that
there had been a misdirection on the part of the learned
Lord Chief Justice, and that the refusal was complete, not-
withstanding any private motive which might influence the
mind of the defendant in making it—The court expressed a
clear opinion that where a party did not claim to detain the
goods as of right, but before delivering them merely asked
to obtain a knowledge of • fact which he had the right to
know, and the knowledge of which could be speedily com-
municated, he was not guilty of a conversion, so an to subject
himself to an action of trover.—Rule refused.