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

Sabre the Vaster of the Rolla.
COWMAN W. RASTSIN COU NTI ES RAILWAY. llf-
syNcrioN ourrintian TO lIMSTRA zaco r lox or
Sat HARWICH STRAY-PACES? COMPA Y'l AGREE-
YINT.—Mr. &indeed., having been heard in reply, the
Muter of the Rolls in giving judgment said, there were
three objections taken to the injunction ; the first was,
to the plaintiff personally, but he wee of opinion that on that
allegation there was no sufficient ground to sty that
the plaintiff was not entitled to sue. The next
objection was, u to the form of the pleading.,
sal the way in which the matter was brought forward.
Before he came to a conclusion as to it be would read the
pLeadings. The other objection went to the merits of the
ease. And after the discussion which had taken place, and
considering the great and extensive importance which
belonged to the question, he ought not to abstain from giving
his opinion respecting it. The plaintiff was a shareholder in
the Eastern Counties Railway Company, end he bad no
interest except in that company, and he was exposed to no
lia•ility except such as was incurred in carrying on the
business of that company. The company was one of that
kind which had been so recently introduced into this coun-
try that he believed neither the legislature nor courts of
justice had been able yet fully to understand all the different
lights in which these transactions were to be viewed. It was
necessary to have recourse to general principles, so far as
they were applicable to a company of this kind. To regard
a railway eompauy, exercising powers so large, and
affecting so extensively the rights of private individuals
ant of the public, in the light of a commin
partnership, would be a great mistake. He was of
opinion that powers given by an act of parliament
to a company like this extended no further than was espressly
stated in the act or were properly required for the purposes
which the act sanctioned. How far those powers extended
might often be a subject of great difficulty. Powers were
given by this set for the constructing and maintaining and
the proper use of a railway. But there was no power to
enter into all sorts of transactions, or to enter into any new
trade. Indeed this was admitted. But it was contended
that there was a right to pledge the funds of the company for
ether transactions which would produce great profit ; and
that the increase of liability was justified by the increase of
Irak and of profit to the shareholders. But there was no
authority se to pledge the funds of the company unless the
acts to be deem were in conformity with the powers given
by the act *turbulent. It was erroneous to suppose that
the acquiesentes of shareholders in any transactions for a
long period was any evidence of a legal right to eater into
them. The most wild projects had been encouraged by some
companies, and the shareholders had acquiesced in them
from cupidity or some other motive. But the absence of legal
decision was no ground for supposing that such transactions
were legal. In this cape be was far from saying that what
was proposed to be done might not be extremely profitable to
the company and advantageous to the public. It might be
proper to give the company power to establish a steam
packet company. Bat under the powers given to
them by their act they were propoeirg to pledge
the funds of the company to support a proposed steam packet
company, to the extent of 150,0001. or 300,0001. Interest at
6 per coat was to be allowed on the subscribed capital, and
the scheme turned out unprofitable, the company was put
en
end to, and the whole of their subscribed capital was to be
secured to the shareholders. There was nothing in the act
of parliament to authorise this. It was said th..t this must be
allowed to be done, or it must be held that nothing could be
done, out of the express power of the act of parliament.
When any other case was brought before the court, it would
he adjudicated upon accordieg to its circum.tances. There
might be things of little importance which would be allowed.
But his opinion was that the eompanyjhad power to do every-
thing that was asseemary to carry out the intention of the act
of parliament, and that they had no power to do anything
beyond it. It was of great importance to the public that the
railway itself should be safe, and that the enjoyment of it
should not be exposed to risk. But this could not be if a
railway company could be allowed ao pledge its funds for
tranmetioss which, though they might lead to advantageous
results, still might possibly lead to great loss. He should
motions the injunction, subject, however, to his aensideration
M the objection which had been taken to the form of the

Before the

of Eogland,_

COOPSIL 4.ifillll.—BlLL TOR AN ACCOUNT AGAINST
RAILWAY DIZSOTORS. QURSTION AS TO NICSJSAIIY
PARTIMP.—This was a bill filed by John Douglas Cooper,
an behalf of himself and all other the shareholders in a
eempsny formed for making a railway from York to Lan-
easter, against Sir John Webb and the other peranns form-
lag the committee of management of the said company. The
'theme was provisionilly registered in October, 1846, and
deposits to the amount of 132,0001. were pdd upon 62,320
shares, which had been allotted by the committee. The
project was brought into parliament, but failed to pass the
standing orders of the house. The project was then aban-
doned, and the directors stated that the sum of 38,8581 had
been spent by them for the necessary expenses; that they
intended to pay back to the shareholders 30s. per
share out of the deposits, and to retain in their
ewn hands the sum of 10,0001., to answer any further
liabilities. At the same time they proposed to the share-
holders that they should execute a release of all claims upon
the directors, and give an undertaking not to commence
. any proceedings against them. The plaintiff refused to ere-
mite the release, and Med this bill for an accouit against
die directors, praying that they might be or ered to pay
beck to the shareholders so much of the deposit as should
not hare been expended, after deducting what had been pro-
perly paid by them. To this bill a demurrer was put in
upon the ground that all the shareholders were necess
parties to the suit —Mr. Stuart, Mr. Bethel!, and Mr. Wetary
feed, appeared for the demurrer ; and Mr. J. Parker and
Mr. Speed for the plaintiff.
The Vice-Chancellor reserved his judgment.

Before nee-ManceUor Migrant.
Wirers* V. WINTER.—DEATH OP A CHILD, LIWATRE
UMBRA THIB WILL, LRAVIFIO leers BEFORE THE DEATH OF
?NO TIIITATOI.—CONITRUCTION OP THR WILLS ACT, 7
WK. IT., AND 1 VIC., c. 26, es. 33, 34.--This was a point
which arose upon the construction of the new Wills Act,
and the question was, whether a legacy to a child of the
testator, who was dead at the time of the making of the
will, leaving issue, and which legacy would have otherwise
lapsed, was saved by the operation of that Act fir the benefit
of the child's family. By the 33rd section of the Act it is
(waded, that " where any person, being a child or other
issue of the testator, to whom any real or personal estate
shall be devised or bequeathed, &c., shall die in the life-
time of the testator, leaving hews, sod such issue shall be
hying at the death of the testator, such devise or bequest
-shall not lapse, but shall take effect as if the death of such
person had happened immediately after the death of the tee.
tater, unless a contrary intention shall appear by the will."
By the 34th section it was enacted, the act should not extend
to any will reads before Jan. 1,1838, but that any will re-exe-
ented,re-published, or revlyedby any codicil, should be deemed
to have been made at the time at which the same should be
so re-executed, re-published, or revived." The only point in
which this case was distinguishable front " Johnson v. John-
sea " (4 Hare, 157), was that here the child of the testator,
the lnater. was dead at the date of the execution of the
eedidl. The particular facts of the present case will suffi-
eiently appear in his Honour's judgment.
Misers. Hominy, Q.C., Jones, Willcock, Walker, Q.C.,
Torriano, Wood, Q.C., K. Parker, Q.C., and Sir W. Rid-
dell, appeared for the different parties.
Sir Jas. Wigram, V.C. : John Winter by his will, dated
the 13th of Nov., 1833, gave a share of his residuary estate
te Jahn Palmer Winter, his eldest son. On the 3rd of July,
1637, the late Wills Act passed, and it came into operation,
as regards the present case, on the lit of Jan., 1838. In
1838, and after the act came into operation, John Palmer
Winter died, leaving issue, which issue survived the testator.
Oa the 16th of Feb., 1839, the testator mode a codicil to his
will, whereby, after making some alterations in the bequests
of his will, in all other respects he ratified and confirmed his
will. On the 22nd of August, 1840, he made a second
codicil, which, however, did not in any way affect the
present question. The testator died ; and the ques-
tion is, whether the legacy to J. P. Winter has altogether
lapsed, or whether by the operation of the act above
referred to, the legacy shall take effect as if the death of J.
P. Winter had taken place immediately after the death of
the testator. And this depends, first, on the effect of the
republication of the will; and, secondly, on the construc-
tion of the words " shall die " in the thirty-third section.
With respect to the republication, the ease must he con-
ordered as if the testator, on the 16th of February, 1839, the
date of the first codicil, had made a new will in the precise
words of the will of 1833 ; in which case there would 11,.ve
been the bequest of a share of the residue to J. P. Winter,
who was dead at that time. With respect to the construc-
tion of the thirty-third section of the act, the question
appears to me to be whether the words " shall die " in that
section mean "shall die after the bequest is made to him by
a will made after the 31st of December, 1837," or whether
the words " shall die" in that section mean "shall die after
the act comes into operation." II the former be the right
construction, the claim of the executors of J. P. Winter will
fail; if the latter, their claim will be good. On the face of
the sot itself I can find nothing to exclude the latter con-
struction in favour of the former • and in the absence of
anything on the face of the will to fix the precise meaning
of the words "shall die" in the thirty-third section,
I am bound as well as I can to fix that mean-
ing by considering the policy of the act and the
oblects which it intended to accomplish. Its policy and
objects are manifest so far as relate to the present question.
It was intended to prevent a portion, given by a testator to a
child, going from the estate of such child, and leaving his
famil portionless, by reason of his death under certain cir-
cumstances; a consequence of the law which the common
feeling of mankind declared to disappoint the intentions of
the testator. The cases of most common occurrence, where
the intention was disappointed, were the cases in which a
child died in the life time of the testator after a bequest
made to him; and the cases in which the testator, in pro-
viding for an ab-ent child, was ignorant of the fact of his
death ; in both cases, the family of the child dying or deed
at the time of the bequest was left unprovidcd for, and to
remedy this the 33rd section of the net was passed. The
esnstruction of the act which alone will include all the cases
which the act must be presumed to have intended to include,
is that which makes the time of the legatees death
unimportant, provided he died after the act
same into operation' and the will was made after
that date • and that construction cannot include
May "-
act.

Lowndes (defendant), Mr. Martin, Mr. Berjeant Channel',
and Mr. Banton.
Several of the knights being absent when called upon, it
was agreed that an entry should be made on the rolls as of
the attendance, of a " full wise."—The officer of the court
having administered the proper oath to the knights
present, Mr. Serjeant Talfourd addressed their lord-
ships and the gentlemen of the grand aids*. He laid
he now appeared on the trial of the last writ of
right,' mad he was very happy to inform them that
their duty would be a short one. He had been counsel in
this use at different periods during the last twelve or four-
teen years, and had conducted it through two trials, with the
best attention he could employ. The conclusion he had
come to was, that no litigation whatever could disturb the
right of the tenant, Mr. Lowndes. Under these circum-
stances, he thought that the best course for the demandant
to adopt, would be to accept the sum of money offered by the
tenant. By proposing this arrangement, the tenant did not
secure any additional right to the estate in question, but
simply got rid of a trial which must have laved for several
days. He felt bound to say, that Mr. Lowndes had shown a
degree of kindness and generosity, which he, as counsel for
the lady (the demandant), never could forget. He would
have had much pleasure in conducting this case, the remnant
of past years, and in which he hail been formerly assisted by
that great ornament to the bar, Sir Wm. Follett. The pro-
oeeding, however, was now at an end, and he would simply
say, that he hoped the tenant might long and happily enjoy
the estate in question.
Mr. Martin said that the past fourteen years' litigation,
and the prospect of a long continuance of it, had induced the
tenant to enter into the present arrangement.
Mr. Justice Coltman told the gentlemen of the grand
win that their only duty now was to say that the tenant
had " more mere right" to the property in dispute than the
demandant.—Thereupon, the knights found that the tenant
had " more mere right" to the estate in question than the
demandant.
The court then broke up. The peculiar and now unusual
nature of the proceedings had caused the attendance of a
large number of rayons.

ADMIRALTY COURT.
COLLISION AT Sza.—Tue GAZELLE.—In this case Dr.
Lushington was assisted by two of the Trinity Mtwara. On
the 25th January last the Dispatch, laden wtth coals, came
into collision with the Gazelle steamer, when ten miles off
the South Dudgeon light. The schooner, which was of 18
tons only, sunk shortly afterwards, beceming a total loss.
Her owners in consequence brought the present action.
Dr. Lushington having explained the facts, the Trinity
Masters exonerated the schooner front all blame. The
steamer was going at too high a rate of speed in a thronged
thoroughfare.—The court consequently pronounced for the
damage, and with costs.
Tug VANCOVVSII.—SALTAGE.—This timber-laden ship,
while on a voyage from New Brunswick to the port of Lon-
don, was run into by a French brig—the Union, of Dunkirk
—and received much damage. She had several feet water in
her hold, and accepted the aid of the Stag lugger, and a
small steamer, the Rob. rt Bruce, which assisted her
by towing. At first a recompense of 2001. was tendered,
subsequently 501. more was added. The salvors considered
the offer insufficient —The learned judge decided that the
salvors were entitled to 3501.
COURT OF BANKRUPTCY.
Before Mr. Oommiadoner Fonblanque.
ALLOCATION TO CREDITOR:I.—W. H. Brett, an insol-
vent physician, cams up for his final order. Mr. Brett
distinguished himself in India in ophthalmic diseases,
and for his services received a pension of 1911. 124. from the
Honourable East India Company, having been medical su-
pervisor in the ophthalmic hospital at Calcutta. He also
enjoyed a pension of 3001. from the Bengal Medical Fund.
Since his arrival in this country he has been at the head of
the Western Eye Infirmary. His debts are 2,5491., and the
assets 1051 The question raised was whether the future
earnings of a professional man could be made available to
his creditors. His Honour thought that they could. Mr. ,
Duncan, for the creditors, said that the insiAvent had
spent more than 2,00 W. in twelve months. He
moved in first-rate society, and thus deceived the
tradesmen. The insolvent had also mortgaged his
freehold property in Devonshire, to the extent of 1,2001.,
which money had been spent ; and, under these circum-
stances, he (Mr. Duncan) prayed the court would not grant
the insolvent protection.—Mr. Cooke said that his client
would pay the creditor. 2001. a year.—Mr. Duncan would
accept nothing but half the insolvent's income, and half of
his earnings.—His Honour made an order to the following
effect :—That the insolvent pay 2001. in the first year, and
subsequently, that he should allocate one•half of his profes-
sional earnings and income. The debts to be paid in this
way, with interest, and the case to be adjourned from time
to time, so that if the insolvent f ils to comply with these
conditions, the final order to be at once suspended.

SVB.DIVISION Cover.—Before Commissioners Fonblanque, Evans,
and abepkerd.
COMMITTAL OF A BANKRUPT.—A bankrupt, named
Bingley, a silk-weaver, came up for an adjourned examina-
tion. He was brought in custody from Whitecrose-street
Prison. He has been frequently before the court, and exa-
mined with great stringency as to an alleged loss of sixty
sovereigns, which the learned commissioner (Shepherd),
before whom the case was heard, declared to be altogether
unsatisfactory, and hence the necessity of appointing • sub-
division court before an order could be made for his com-
mittal to prison for refusing to give satisfactory answers
(pursuant to the 6th Geo. I V.).—The examination as to this
alleged lose or robbery was now commenced (by Mr. Hud-
son, solicitor) de novo, but the answers did not vary from those
which were given by him upon his former examinations.—
Mr. Manning, as counsel for the bankrupt, having been
heard at some length, Mr. Commissioner Evans said--I do
not feel the slightest doubt in this case. Here is a man who
swears that he has in his pocket sixty sovereigns; that he
gets drunk and loses them ; but how and where, he gives
no explanation, nor does he complain to anybody of their
loss; and, beyond all that, he
Under these circumstanees, I cannot believe his state-
ment: and therefore I am of opinion that he must
be forthwith committed.—Mr. Commissioner Fonblanque
and Mr. Commissioner Shepherd having expressed

lar opinions—Mr. Cooper, this chief Messinger of the
court, said that as the bankrupt had come up in custody
from Whitecross-street prison, he thought that the lodging
the warrant with the keeper of that prison would be qi.ite
sufficient. —Mr. Commissioner Evans: Just ao.—The bank-
rupt was then taken away in custody.

ASSIZE INTELLIGENCE.
YORK lw EDNIRDAY.

Before Mr.

THE STARTFORTH repeat
closed yesterday when Mr. Justioe Creesserell was summing up.
We now add the main points of hisaddreas His lordship hay-
ing stated that almost every part of the evidence seemed tole
important, instead of giving a summary of it, detailed it to
the jury entire. First, said his lordship, it pointed to
the period at which the prisoners, the deceased, and the
principal witness went to the spot where the crime was
said to have been committed ; then it shows, by the eye-
witness, the fact that the man was killed ; and then it
confirms that testimony by collateral circumstances observed
by other persons at the time and after the time in question.
But here a question arose, " What can have induced the
commission of such a crime?" It was suggested that Barker
was afraid of Yates giving some evidence against him re-
specting a coat, and that for that reason he had 'necked him
on the night in question. Barker's motive, therefore, was
not so muck that of revenge as to prevent something
which he feared happening to himself. As to one of the
other men, Heine, the motive of getting money from
Yates was assigned to him—his object, it was said, was
robbery; but with regard to Breckon, no distinct motive
was assigned. And, in proportion as the motile seemed
obscure or inadequate, so much the more careful must the
jury be to inquire whether the evidence was sufficient to
overcome the improbability that the crime was committed for
wean Inadequate motive. On coming to the testimony of Ann
Humphreys, the principal witness, his lordship observed that
It was of the utmost importance, and it was necessary that
the jury should examine it most scrupulously. It was said
on the part of the defence that she was a person of immoral
character, having been in the habit of associating with men
in public-houses, in a disreputable manner. No doubt there
was a good deal of truth in all that, mid 'the jury must
weigh and consider it, and compare her character
with the other circumstances in the case, and then
say whether they believed her or not. If her state-
ment were believed, he did not know that he could
present any alternative, as no suggestion had been
offered that the crime was anything less than murder, if cam-
mitted at all. If the jury did not believe this girl, hen the
case fell to the ground ; because, whatever noises had been
heard—whatever appearances there might have been at the
spot, there was no proof that a murder had been committed,
and of course the pnsoncn must he acquitted. The jury
would either believe or not Ann Humphreys' statement. If
they believed that a murder had been committed by the pii-
goners, then, combining her testimony with that of the other
witnesses, they would find them guilty. And if found guilty,
they must be found guilty of murder, because there had
been no struggle or fight, as far as had appeared, which
could lead the jury to reduce the offence to one of man-
slaughter. The learned judge read the evidence of Ann
Humphreys with great care, commenting upon particular
passages as he proceeded ' • and he then directed the
attention of the jury to the corroborative evidence,
After all, the whole case turned upon the testimony of the
girl. In conclusion his lordship repeated the nature of the
verdict which the jury would have to record, if they were
satisfied that Joseph Yates was murdered, and by the prisoners,
If they were sosatisfied, then, however painful their.duty, he
was sure they would perform it like men, and return a
verdict of guilty. On the other hand, if the nature of the
story of the principal witness was not satisfactory—if the
circumstance of the concealment of it, and the other circum-
stances which surrounded the case, left them in any substan-
tial doubt, they would give the prisoners the ileac& of that
doubt, and acquit them.
The jury retired, and not being able to agree, they were
—after their three days' attendance—locked up " without
meat, drink, or fire," the weather being intensely cold, for a
period of nine hours. At half past ten at night, those of
them who were for a conviction surrendered their opinions
in favour of those aho were for an acquittal, and returned
into court with a verdict of Not guilty.
The jury were s orn on Monday morning at nine o'clock,
and were not discharged until eleven o'clock nn Wednesday
night, having been in charge of the sheriff for sixty-six

.J 4 IS
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4 6p.
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