The Express.
London, England, 1846-12-18 00:00:00

view of the ease would not decide the presentquestion alone,
because I can only declare that which the act empowers me
to declare. If the construction of the act had been that the
words " shall die" meant " shaft (lie after the bequest
made to him," I could not, upon that ground, have
come to my present conelu4oa. I think the sound
construction is, if the bequest is made after the
act comes into operation, and that it will apply to a case in
which the child dies before the bequest is made to him, and
after the act comes into operation. The court declared that
the executrix of J. P. Winter was entitled to the legacy.

Before Vice-Chancellor Knight Bruce.
THOMAS O. I'HiLLire.—Wa`K or CONSIDERATION FOR
CONTRACT, &e.—This ease, the facts of which appeared in
this paper of yesterday, was again heard this morning on the
subject of costs. In the course of the argument a case of
•' Jones e. Thomas" (2 Youngs and Collyers) exchequer
cases, 498, in which the present plaintiff appears as the de-
fendant, was cited and commented upon.
His Honour said that as agsinst Lewis, the represen-
tative of the mortgagee, the bill must be dismissed with costs.
The question was then argued whether the assignee should
have his costa.
His Honour said that, possibly, he should allies taken the
same course as to the costs of the assignee, as he had done as
to the mortgagee, namely, allowed him his costs ; but there
were passtgee in the answer of the assignee which he most
notioe.—[His Honour then read passages from the answer of
the assignee, to the effect, that he believed that the only
deed that Rayner executed, was a deed appointing the plain-
tiff a receiver of his rents, and that Rayner believed that the
deed was of such purport only, and that he never intended to
execute a conveyance of the property to the plaintiff, but that
the plaintiff, at the meeting at the Six Bells, fraudulently
instituted a deed of conveyance for the deed which Rayner
intended to execute.] His honour then proceeded to say,
that the case upon which the plaintiff failed, was that which
related to a civil right merely. The court had been of opi-
nion that by reason of want of consideration the plaintiff
could not recover the property in this suit. The case made
by the defendant (which was not proved), was the case of
au indictable offence, an offence of such a nature that if the
charge were true, the plaintiff would be driven from society,
and, being a solicitor, would be struck off the roll. Such a
defence, unsupported as it was by evidence, ought not to have
been made; and his honour thought he should be doing jus-
tice l►mely and imperfectly if, in such circumstances, he
were to do uo more than give the plaintiff the small part of
the costs occasioned by these various and unntcesrary charges.
He was of opinion that the correct, discreet, and wholesome
administratioa of justice required that, upon the ground of
these charges, and this ground alone, assuming that other-
wise the defendant would have had all his costs of the suit,
he should have none.

COURT OF QUEEN'S BENCH.
Sittings In Banco.
Lord Denman, and Justices Pension, Coleridge, and
Wightman, took their seats on the bench at 12 o'clock
yesterday, for the purpose of delivering some judgments.
THR QUEEN V. THE COMMISSIONERS OP SEWERS.—
RIGHT OP Till COMMIesiONERs OP SEWERS TO ORDER
THAT • Sawea, WITHIN 30 FEET OF THE BOUNDARY
LINE OF THE PROPERTY OP A OIVEN PERSON BB BUILT
UP TO THAT LINE.—In this Walt, cause had been shown
against a rule nisi for a writ of certiorari, to remove into
this court a presentment made at a Court of Sewers, by
which a gen-leman named Jenkins was amerced in the sum
of 3,0001, for disoh-dience of an order of the Commissioners
of Sewers, by which he was required to carry forward a
sewer which they had permitted him to build on his own.
property, and which extended to four feet from its boundary,
up to that boundary, so that it might there be con-
nected with another, also leading to the Great Ranelagh
Sewer. Mr. Jenkins had, in fact, disobeyed this order,
which was a usual one, had stopped within four feet
of the boundary line of his land, and had built up
a wall to prevent any drsipage from the adjoining land into
his sewer. For him it had been contended that the order
was bad, because it directed him to lay out money for the
benefit of lands not his own. For the defendants it was
urged, that the leave to build the sewer, of which the land
of -Mr. Jenkins had the benefit, had been granted condition-
ally, on his complying with the order which he now re-
sisted, inasmuch as a copy of the ordinances of the commis-
sioners, by which that condition was, in all similar cases,
directed to be imposed, had been furnished to Mr. Jenkins
with the notification of leave to build his sewer.
Lord Denman now said, that the court considered the leave
to build the sewer to have been accepted by Mr. Jenkins,
under an implied promise that he would observe the con-
dition expressed in the ordinances, and therefore that he
could not now dispute the validity of the order. Of the
amount of the amerciament the court would say nothing,
because obedience to the order would prevent it from being
levied. Rule discharged.

THE QUEEN D. GOMPERTZ AND WITHAM.—CONSPI-
see.—This was an application by two persons who had
been convicted of a conspiracy to defraud Captain Rose, by
obtaining his acceptance to certain bills of exchange, on the
pretence that a person named was about to advance money
on them. The defendant Oompertz moved in arre-t of judg-
ment, and also for a new trial, on the ground that evidence
had been impraperly received, and that the verdict was not
warranted by the evidence. The defendant Witham applied
for a new trial, on affidavits which suggested that he had
been mistaken for his brother. The court, after heaLoinz
the argument, had postponed the judgment, and
Denman now said that there was no around for arresting
the judgment. One count was good on the authority
of a case which had never been overruled. Then it had bean
suggested that as the verdict was general, and must be taken
therefore to be one on all the counts, there ought to be • new
trial. This was a novel objection, founded on the case of
"O'Connell v. the Queen," and not well founded. In that
case there had been a judgment on several counts, some of
which were not good: here there was as yet no sentence,
and it was not to be presumed that sentence would he passed
on a bad count. Ts the objection that the jury had found the
defendants guilty on all the counts, and that there ought to be
a finding as to each count, the answer was that the same
evidence had been found by the jury to prove each count.
And with that finding the court was not dissatisfied. The
next ground urged for a new trial was, that an unstampesl
instrument, purporting to he a warrant of attorney, had
been received in evidence. Toils raised a question of great
importance. The instrument in question had been used,
not to prove a liability or confer a right, but as a collateral
means of promoting the fraud intended. The fraud was
rendered more complete by the instrument having been
used; but the validity of the instrument was not in any way
essential to proof of the charge in the indictment. It had
been further objected that the verdict was not warranted by
the evidence, because the charge was of a conspiracy to
obtain acceptances from the prosecutor, whereas the
evidence showed that the acceptances were ready
written, and that only the signature of the prosecutor was
wanted. There was, however, no legal distinction between
the two things. It had been urged lastly that there was a
variance from the indictment, because tne evidence showed
that all parties knew the prosecutor to be without money ;
and his acceptant s, so far as his means of paying them were
concerned, quite worthless. Though there should he ground
for so speaking of the prosecutor's means, the fraud would,
n theless, be the same. They who had sought to defraud
him of these acceptances must have expected some benefit
either tram him or his friends. So far, therefore, as the
defendant Oomperts was concerned there was no ground for
the application that had been made ; but as the court thought
that the affidavits of the defendant Witham and of his
his father rendered the verdict as to the defendant Witham
unsatisfactory, and as the court could not determine what
effect adverse to one of two defendants the evidence
which implicated the other might have had, it was of
opinion that there must be a new trial of the two defendants.
—Rule absolute fur a new trial.
EXTANT)! BLI:CX. IN KZ RACKNAMT. BLUM PROHIBITION.
—Thecourt had postponed it•edecision in this ease,which was
an application for a prohibition to the Bishop of Norwich to
prevent him from executing a sentence, affirmed by the
Privy Council on appeal, of forfeiture of one third
of the annual profits of the applicant's benefice on the
ground of his having been non-resident without leave, for •
period longer than three months and less than six months.
The grounds of the application were : Ist. That proceedings
for forfeiture were in their nature criminal, and ought to have
been instituted under the Church Discipline Act, whereas the
proceedings in this case had been by civil suit. 2nd. That
the libel did not specifically allege that the applicant had
cure of souls as well as the benefice. 3rd. That the sentence
referred it to the registrar to ascertain the value of one-third
of the annual profits of the benefice, instead of being cer-
tain and definitive. Lord Denman mow said that the pro-
ceedings were not criminal, but civil, as well in form as in
the interest in the result of the person, the bishop, who had
authorised the instituting them ; that the proper tribunal
(the Privy Council) had held that the libel used words which
alleged a cure of souls; and that the last objection impeached
a rule of practice on which the court could not, even if a
competent tribunal had not pronounced it good Omit a pro-
hibition at this stage of the proceedings. The rule nisi there-
fore, must be di charged with coats.