The Express.
London, England, 1848-03-16 00:00:00

SPORTING.

possession of some of the parties to the deed, and ere nnw in
the possession of some of the parties to this suit, not intros
ducal by way of reviver or supplement only ; and that the
peas este on of the property has beets held uniformly and east in u-
ousiy under and for the purposes of the deed of April 4. With
this proposition it is quite consistent tosupposo that the trusts
created by the deed may, during a time, have been, and at
present may be, improperly administered, and that the title of
the charity may be defective, by reason of the existence of
rights paramount or adverse to the deed and to the charity.
These rights may be now enforceable; Mancini-, of them, sal
view the matter, is or has been at any time since the execu-
tion of the deed clothed with possession. In leas than a year
alter April 4, 1842, the ouildinge on the land w. re com-
pleted, and the defendant (Mr. Munro) accepted the appoint-
ment of minister, which he has held ever since, subject to
the question, whether he has forfeited it by separation from
the established church. For when some year, had post after
the commeneemeet of his functions, there sense, or revived,
or become more fervent and extended, the well-known con-
troversy on the subject of church patronsge in Scotland,
which produced in 1843 the equally well-known secession
from toe etabliabed church of a great body of clergy
and laity. The dissension did not fail to reach the
Scotch prmbyteriane in England, and seems strong v to
have affected the religious association now in question. The
managers of the charity were divided, no was the congrega-
tion, but riot iu either else nce equally. The majority of the
former agreed with the majority of the latter end with the
minister, a stem of things which was likely to end soil did
end in the practical defeat of the minority. The majority of
managers, however, though successful so far, seemed to have
doubted of the solidity or permanence of their merest., if
supported 'snip by means not much out of the ordinary
tours •of the dealings of mankind. For I cannot but think
that there is something strikingly opposed to general notions
of correctness in the operations which I have now to mention,
considered as the OnefatiOlS of persons intrusted with the
guardianship of the institution which those operations
were intended to destroy. His Honour then re-
ferred to the action of ejectment and the conveyance of
Feb. 1844. mentioned in our f irmer report, and proceeded as
fellows. The sen ciel case in the actton of ejectment was
stated with the concurrence and consent of ftlr. Munro, as
well as of Mr. Hebert Barbour, Mr. Alexander Bannerman,
Mr. John Bannerman, and Mr. James Burt the elder, to
whom belongs the credit (il any) of this strictly teoteric pro-
' cording. in which the attorney on one side was the partner
of the attorney on the other, so far as there could be consi-
dered to be two sides, but with which the defendants do not
scruple to connect the term " fairness." In this proceeding
judgment wee obtained against Mr. Munro by his fri. ndly
adversaries. His Honour then said that the first question
was as to the preliminary objections which had been raised
to the frame of the suit, as regarded parties, but which his
Honour did not consider well founded. The neat question
wee, whether the constitution deed ought, ter the purposes of
the suit, to he considered as valid. Ott this point his
Honour was of opinion that the constitution deed
bound all the parties to it, and amounted to a con-
tract titter. it them for valuable ...omeletelfin, that
the litnd comprised in it should be uppreprist. .! to pur-
poses which it deelereel. Any infirmity iii the title of the
contracting parties del nor, as the actual Oct. were, present
the deed Irma operating as hetwceu theinielvs P. And with
respect to persens not parties to the deed, the possession
having been such as his Honour hail stated, soy adverse
right ought, in his opinion, to be treated in the cause as it
mere outstanding claim, not clothed with possesaion. Now
it was conformable to the principles of equity, and to the
course of decisions in this court as well as in the Court of
Chancery in Ireland, to say that, where n person knowingly
acquired the possemion of property as a trustee, or being
in possession made himself by contract a trustee of it merly,
he could nut upon any notion of remitter or otherwise, lie
allowed in a suit seeking the performance of the trust to
assert any paramount or adverse title °filet own. That he uses
uleilly to lose the lone fit tit such title his llonsur
did
not say, but his title must be asserted, if at all, without a. .y
telvrintage derived from the pi-mission acquired in the
character of trustee. Ir was, moreover, consistent with
mint iple and with the Mortmain Act to hold that where a
p.irson to possession of land a• owner had devoted it by
deed to charitable purposes, fulfilling the conditions of the
statute, rind where the p emission had been unititerruptedly
conformable to the deed, it was competent to institute a suit
far the administration of the trust notwithstanding any
infirmity of the donor's title, and that to such a suit it could
not he a defence that the land was r. coverable by a title
paramount not clothed with poasession. With regard to
the couveyauce of February, 1844, if it had been intended
to Ise in support of the trusts of the deed of April 4, 11132, it
might have been a commendable measure; but, obtained as
it was, it Rpm used to his Honour to h ive been en act of
wrong, and something more—an act belonging to a class of
whit 6, if it were allowable to di rive an expression frum a most
venerable source, it miuht he said, ss for these things every
friend will depart." The title acquiri d under the de. d of
Feb , lfitt, was in his Honour's opinion subject to all the I
provisions and the obligations of the deed of April 4, 1832.
The in at question was as to the propriety of the manner in
which the trusts of the charity had been admiaistered, for
which the defendants or some of them were its his Honour's
opinion clearly answerable, a remark which ought not to
extend to Mr. Grant, or to thi ta, who were parties to the
suit, to assignees or executors. His Honour then proceeded
as follows: The wrong administration imputed to the des
Pendants is the perversion of the charity, by wilfully allow•
Mg it to be applied to the purpose of divine service and wor-
ship in a manner differing substantially from that in favour
or which the thality was founded. And it is a question
which preetieany may be treated as turning solely on the
fitness or unfitness, the qualification or want of qualification,
of the minister, the dispute not confining itself to Mr. Mun-
ro's fitness or unfitness, qualification or want of qualification,
but extending itself also to other ministers who necasionally
since the 22nd of May, 1843, have been allowed to officiate
with him or for him. But 1 will for the present at least
deal with the question of the fitness or unfitness,
qualification or want of qualification of Mr. Munro
alone. Now the propositions in this respect advanced
by the Attorney. General, and the plaintiffs may, I think, be
not inaccurately represented as in effect these. Ist. That it
is and has uniformly been essential to the due performance of
divine worship and ',melee, upon the foundation of the con.
stitution decreed and essential to the due ps rformanee of its
trusts, that the minister for the time being upon the founda-
tion should be a minister belonging to and in full communion
with the established church of Scotland, in the sense in
which those words were used in the constitution deed;
Zany. That in that sense Mr. Munro, at some time between
the end of llicember, 1842, and the month of July, 1844,
ei geed (if he bad not before ceased) to be and hiss not since
befit a minister belonging to end in full communion with the
established church of Scotland; 3rdly. That nevertheless
certain of the defendants, bu ing themselves of the body of
trustees and teenagers favourable to Mr. Munro's views,
having acquired practically the direction and control of the
affairs of the charity, he, with their concurrence mid support,
elticiates in the place of woraeip in question, and has ever
since the year 1842 continued to do so, and to profess the
performance there of the ecclesiastical functions belong-
ing to the minister upon the foundation and to re-
ceive the allotted stipend accordingly ; and 4thly. That
such a state of things is one requiring interpositinn
and redeem from the court. It the first and second of
these four propositions are well founded and correct the
two others are so likewise I have no manner of doubt. Are,
then, the first and the second well founded and correct?
With regard to the meaning of the words " belong rig so and
in full communion with the established church of Scotland,"
Mr. Seunro and the defendants acting with him contend
that the language imports nothing more than example, and
is satisfied 'ny an exact resemblance in point of religious be-
lief, religious discipline, and eceleseistical polity. But it ap-
pears to me impossible reasonably to acscde to such an argu-
ment. I think it plainly opposed to the context, and as
plainly upporod to the ordinary and proper sense of the
ward., independently of the context. I consider that when
the connexion of Mr. Munro with this charity be.
pen he was a minister belonging to and in full tom
muniun with the established church of Seetlend, not
merely because he believed his religious impressions,
his interpretation of the sacred writings, and hie
views of church discipline and eeclesiaetiral polity
to accord with hers, but because he was then also in s
stronger sense and a closer and mu re positive manner linked
to hi r, united to her, end of her. Agate, I consider that
when he first performed ar conducted Define worship in the
place of worship belonging to the charity as its minister, it
was done in connexion with the established church of Scot-
land, not merely because of the exterior forms and visible
observances of the worship and service, and the religious
belief of the minister and congregation, but because that
minister was then a recognised and recognising son of the
established church, and Mcaueeit was by that title that in farm
and substance he had been accepted and acknowledged as
their pastor. It is argued, however, that the estahlisbed
elierch of Scotland is not in the state in which it then was,
hat that it has ever since a time previous to June 1843,
been in a state of corruption UT error, and that
the principles and tenets of what is called :the
free church ought to govern the established church of
Scotland, and that independent of this argument all power
of a spiritual or ecclesiastical kind has ceased to be exercisa-
ble in Scotland with reference to preshyterian ministers MR-
dating in England. I have endeavoured to ascertain whe-
ther the doctrines, discipline, polity, and practice of the
established church of Scotland were substantially, at the
later periods referred to, the same as they were on the 4th of
April, 1832, ea well as with the amistaace of the materials
before the court I have been able ; mid from these materials
I think it a just and legitimate inference, that the doctrines,
discipline, polity, and practice of the established church at
Scotland were substantially such and the same on April 4th,
1832, as when Mr. Munro was ordained to the ministry on
this foundation, and were such and the same at that time as
they were in the year 1844, and are now. As to the power of
exercising spiritual or ecclesiastical jurisdiction in
Scotland so as to effect Mr. Munn, notwithstanding
his residence in England, I am ef opinion that
there was such a spiritual jurisdiction when Mr.
Munro became the settled minister of this charity,
and that the jurisdiction has never been abandimed or ceased
to exist. Whether that jurisdiction could do more than de.
dare him to be no longer a minister of the a Mal:dished chureh, '
or no longer in communion with her, I need not, and do
not, say ; nor is it necessary for the present, at least, to spe-
city or ascertain the urisdiction to exercise, or the form of
exercising such jurisdiction. I am of opinion that the first
proposition of the Attorney-General and the petitioners is
correct and well-founded. With regard to the second pro-
position, Mr. Munro was ordained to the seiritual charge
upon this foundation in 1812. In 1843 took place finally,
openly, and formally, that great secession from the establithel
church in which the free church originated. His Honour
then proceeded to read at length the various WO
of the General Assembly of the Church of Scot-
land with reference to the free church, and vari-
ous resolutions of the Kirk Session of the Menthes.
ter Congregation passed at meetings, at which Mr. Munro
and other defendants were present, expressing their
pity with the seceding party. Ills Honour also read

13IlTTING AT IIIANCIT;ATTE.-- Tt"fTALVT.—.NOt a bet laid ;
racer[ u the Warwkk Thal stales and Handicap.
t 1 INl,solt SfY.V.PLE CHASE-- ENTRIE, roll THE HARM. ;
car.—St. Leger, Naworni, lird Lancer, Scylla, Anna, Young Loamy, ,
The Page, Repealer, Proceed, llipbriar, Gantry. Prodigate, Fortune.
teller, Mushruom, The Urchin, The British Yeoman, The t hanglet, I
Gipsy Queen, Alexander, Khooaloor, Mushroom by the Divinguished,
Geyburet.
BETTING AT LEAMINGTON.—Tru,nsv EvAstso.
LEAMINGTON STEEPLE CHASE.-8 to agat ht. Leger, ,
8 to I Kest British Yorman, 10 to I agat The Curate, 10 to
tautt
Jerry, 11 tot agat Edward the Pirst„ H to t egg Proceed (t), 14
oast Standard Guard. 15 to 1 apt The Chandler.
Alexander,Weicerhampton,Sir. Arthur, end Repealer are scratched.
CHESTER CUP.-20 to 1 agst Cracow, L 5 to 1 apt Blaze
(0, 25 to I apt Swallow (t freely), 23 to I agst War Eagle, 30 to I
eget Jonathan Wild, 10 to eget Iletman Platoff colt (t), to to I agst
Lightning (1), 1,000 to 15 egst Patriot (t freely).
Deauk.-9 to 1 agst Surplice, 13 to 1 east Glendower,
14 to 1 peg Springy Jack (t to, a large su, and aft off).
LEAMLNOTON AND W aura.
ARW ICE RA('O4.—%F.DIMPMOY.
DUIDALE STAKES of 5 sots. each, and 25 added. 2 mire.
(7 subs.)
Lord Strattimore's Ind Lancer (Owner) 1
Mr. Littledale's Donna Anna (Brookes) 2
Sir H. Bruce'. Botanint (Bruer) 9
Thu following also 'darted The Fairy, Cpseklenoe, Whistle !Pinkie.
Betting: 2 to 1 agst Red Lancer, 5 to I agat Donna Anna.—Won in
a Ttro.r.YEAR.OLD STAKES of tO iota. inch, and 25 added.
T. TIC. (6 subs.)
Mr. B. Green's Lammermoor
Mr. Oarnan's Feline (Marlow) 2
Mr. Critt•liny's Sir henry 'larding° ..... 3
Mr. Austin's St. Francis (Wekelield) 4
Betting: 5 to 4 egg Lammermoor, and Eto 3 apt Sir Henry
Hardtop. Won by hall a neck ; Sir Henry a bad third.
CiterLe STAKES of 25 Soya. each, 10 ft. 1 mile. (3 subs.)
Mr. J. Lilbe's The Great Western, walked over.
GREAT WARWICKSHIRE STAKES 4f 1001, added to a
Handicap or 25 WV. t ilCb, 13 ft, and 3 only it declared. 2 miles.
(40 gab., 29 at whom declared.)
Mr. E. J. Irwin ad Beilinand (3. Sharp) 1
WOW?,
Mr J. Parr'. Ferehill (0. 2
Lord st.thmore's Tit Bit ([Touch 9
The following also ran —Lyme, Malley, Sampson, and Suonyesle.
Betting: 5 to 4 apt Balling:ad, 3 to 1 eget Milliner, end 7 to 1 agst
any other. Won very easy.
SWEEPS of 5 sows. each, and 25 added. 1 tail*. (13 subs.)
Mr. Palmer's Ferrybill (Tanker) I
Mr. Parr's Marietta (Wtdtrboune) 2
The following also ran: Dipthong, Bletchiegton, Edwin (h-b),
Couaterfeit, Boon"b fby Jerry mita Barbasina, St. Alban's, Bruce,
Mr. Canine, John Harris, and The Diamond. Betting 2to I oust
Hoot., 3to 1 eget Candle, 6 to 1 SW Bruce, and 7 to 1 each agst
John Harris and Yerrybill. Woe by a head ; Caudle u bad third.
Br-11010 ON THE COUILSR.
CHESTER Cue.-40 to 1 agst Lady Hylda (t), 40 to 1 eget
BalLnatad (0,50 to 1 apt Patriot (t freely).
1/ERRT.-14 tO 1 agat Springy Jack, 40 to 1 eget
Backbiter.

Law vrtlftllcstntf.
EQUITY COURTS.
The Lord Chasoellor sat in court for • few minutes only,
and retired to his private room, with counsel, to hear at,
application in the ease of" Vrarde v. Weide." His lordship
did not como into eourt during the rest of the day.

Before the Vice-Chanceitor of Enthral.
IN Z 7 TEI LONDON AND NORTH RAIMAD
COMPA.Nr.—PATIMNT UP COSTS 1:PON PUNCNASSI OF
LAND.—in this ewe it appeared that the London and North
Western .Railway Company hail taken certain land at
band Socworth, in Leivetershire, and had paid the purchase
money into court, under their act of parliament. The land
taken be!arged to a tenant :or life, who had conveyed his
interest, cabject to two .annuities, to a trustee. A petition
was presented by the trustee and one of the annuitants, that
the money might be paid out of court, and invested in go-
vernment securities. The second annuitant had been served
with the petition, and bet appeared, and now coked for his
costa—Mr. F. J. Wood appeared in support of the applica-
tion.—Mr. Spoed, for the r.ilway company, objected to the
payment of tine costa.—The Vice-Chancellor considered
that the company was bound to pay the costa of the second
annuitant, as his interest war prior to that cf the tenant for
the.

Berme The Chancellor Knight 'kW.
ATTORNET-G.EVERAL O. IIIVXkO.—SCOTCiI KIRIL.—The
main subjects of conteuticn in this nude are, the que.tions of
the validity or invalidity of a deed of trust, dated April 4,
1842; and (if it is to be teeniest as valid), of the propriety or
the impropriety of the manner in which its trteue have been
admiuratered. His Honour here stated the effector the deed
as set out in cur former report, and proceeded ac follows
This deed was executed by all the thirteen persons who were
parties to it, and (it is right to presume) on the day. of its
date. The plan of land expressed to be conveyed by it had
been respectively bought before April, 1842, as to one, from
Mr. and Mrs. Brown, who, in 1831, conveyed it to the defen-
dants, Robert Barbour and James Burt, the elder, the de-
ceased defendant Alexander Bannerman, the defendants
Daniel Grant and John Bannerman, and the plaintiff James
Kennedy, in fee ; and as to the other, from the defendant
Robt. Barbour, who, with his trustee, conveyed it in March,
1832, to the defendant, Jas. Burt the elder, the deceased
defendant Alex. I3annerman,the defendants Daniel Grant and
John Bannerman, and the plaintiff, Jam's Kennedy, in fee.
The purchase-money on each occasion was paid out of a fund
contributed by a numerous body of persons for the purpose
of appropriating the land in the manner explained in the deed
of the 4th April, which shows (as the truth was) that, with
a view to it, and in order to its execution, the conveyance of
the preceding day had been made. By that conveyance the
purebsoer, or the nominal purchaser, of the preceding March
and the preceding year, conveyed the plots of land in fee to
a trustee, who discharged himself of his trust by executing
the deed of the 4th of April. It is to be borne in mind that
of the six persons who conveyed to the trustee, all, except
Mr. James Kennedy and Mr. James Burt, the elder, were
parties to the deed of the 4th of April. It is an admitted
fact, that neither of the deeds dated previously to the 4th of
April was enrolled ; and it is cootended, and perhaps cor-
rectly, that therefore all the deeds dated before the 4th of
April ought to be conaidered as void. This, however, is a
point on which I do not thiuk it necessary to give my
opinion. It in admitted also that there was a perfect
compliance, as to the deed of April 4, with the formalities
required by the Mortraain Act, subject only to the question
as to the effect upon that instrument of the invalidity (if
any) of the ptomain' deeds. Aud how, as to the possession
of the property. It is, I thh,k, I. correct inference from the
Pleadings and'evideoce, that both the plots of land were, at
thsetisos at the execution ot the deed ot April 4, in the salmi

TUE EXPRESS, THURSDAY EYENING, MARCH 16, 1848.

peewee from the answers, and then proceeded as follows:—
The whets of the evidence, taken together, has convinced
me, and I must declare my opinion to be, that Mr. Munro
hee placed himself within the predicament of adherence,
elated in the General Assembly's Enactment of June, 1846,
which I have read, and that he was net when the suit com-
menced, and has not been since June, 1844, and cannot be
taken now to be, a minister belonging to, and in full corn.
trunnion with, the established church of Scotland, within the
meaning of the deed of April 4, 1842, nor has the per-
, formance of divine won ip been in counexion with the esta-
blished church of Scotland. I mutt state my opinion to be,
that the government and administration of the properly in
dispute were before and when this litigation began, and must
be token to be still, improper and incorrect, and in contra-
vention of the deed of April, 1842. It may be right to add
that my opinion is not feunded in any degree upon the sen-
tence of the Presbytery of ticlinburah, pronounced in Ja-
nuary, 1844; 1 must therefore make a decree in the follow-
ing terms: first saying, that though fulls aware of there
hissing been, and being within the church reflect the Free
Chinch of Sentient( m. is (not a few) whose theological and
general learning, whose aldicy, and the purity of whose
lives ..re univeraidly acknowledged—though recognising in
the amplest manner (whether the particular views and opi-
nione of that church are rroneous or exempt from error)
the clear right of every men entertaining these views and
°pillions to looter, encourage, and support them by any
fair means not infringing the equal right of another,
nor implying the justification of a bad faith by
religious disagreement, still true conduct and proceedings of
the minister upon this foundation, and those among the
parties to the constitution deed who were concerned in the
action of ejectment and the conveyance of February, 1814,
appear so contrary to justice,, plan dealing, and fidelity, as
to render It impossible with propriety to avoid directing the
stirs ore of them to pay the relators' and petitioners' costs
of the suit at least to this time.—llia Honour, alter con-
cluding a judgment which occupied two hours and a half in
the delivery, handed to the registrar the minutes of the de
cree, referring it to the Muter to appoint a new minute r
and new trustee: of the chap 1, and restraining the present
miniiitrr and:ten of the trustees from officiating any longer,
and also directing various accounts ; but, aft.. r come discus-
sion, the final settlement of the minutes was postponed till
next.

uoaa.y

Before Vice-Clnoboaler Wigram.
FITCH v. WHIIEIL.—CONSTRUcTIon OF WlLL.—This way '
• question of construction, arising upon the will of Anne I
Taylor, deceased. The testatrix gave by the will all her
real and personal estate to trustees, upon trust, to sell her '
real estate, and such parts of her personal estate as should
be saleable, and stand possessed of the proceeds to arise from
the sale of the real estate as a fund personal. and not real !
estate ; for which purpose the testatra dtclured that such .1
proceeds. or any part thereof, should not in any event I
lapse or result for the benefit of her heir-at-law. And out of 1
such proceeds and other her personal estate, the testatrix
then gave several legacies, and concluded by giving t re-
sidue of her estate not previously disposed of by thhe e wil
upon such truss, intents, and purposes, as *lie should by any
c dieil to her will direct or appoint. The testatrix died
without making ai.y codicil to her will, end tie
hill was tl.eit tiled by her next of kin, fur
the administration of her estate. The question standing for
judgment was whether the diwetion in the wilt that the
proceeds arising from the sale of the reel estate ihuu:d form
a personal fund and not real estate, and should not lapse or
go to the heir-at-law of the testatrix, created by
implication a gift for the benefit of the next of kin,
or whether such proceed,' belonged to the heir-at-
law of the testatrix, under the ordinary rule that the
mete direction to convert real estate in a will, un-
attended by a disposition of the proceed*, is not of itself
sufficient to entitle the next of kin of the testator to such
proceeds all against his heir-at-law. Miser'. Wood, Walker,
lingers, Ilsrily, d It. P.Juier, rue arts' the liter-
ing fur the elil;en tit to the c.uw. Ilis honour
now delivered judgment, observing that words di-
recting that the proceeds of the reality should be a personal
fund, and should not result fur the benefit of the heir-at-law,
as they had not been followed by an express disposition of
such proceeds, were not sufficient to raise a trust fur the next
of kin, in exclusion of the heir-at-law. The sums, therefore,
which had been applied out of the general proceeds of the
estate in payment of the legacies given by the will, would
Dave to be apportioned between the real and personal estate ;
and the residue of the proceeds arising from the salt- of the
real estate paid to the heir-at law.

CONSISIOKY COURT.
Before Dr. Lushinatam.
DAWFON V. DA WAUN —Ds Volo.CE.-1 his was a !tat brought
by the wile agaisist the husband tor •divorrx, on the ar.,unds
ot cruelty and adultery. There was no opposition, and the
court pronounced Cu. the divorce as prayed.

ADSI I li.laY
Before Ur. Luslangtuu.
_ _ . . _

This was the default day after the last term. Two motions
were in the first instance disputed of.
THE HUWENA.—SALVAna.—Thi, was a suit for salvage
services rendered to the lturena while on a trailing voyage
to Site.* Leone. The salvors all. ged that she was out of her
course in September lout. The masterdied, and the principal
salvo brought the ship home to London. Tne value
was about 1,1001. A tender had been made and re
fused—After hearing civilians, the learned Judge
considered there bad been Food services rendered. The court
also held that there was • legal claim for salvage. The
Rowena left Sierra Leone in September, and, soon after, the
master died. The ship fell in with the Mary, the master of
which went on board and brought the Rowena into Cowes.
Fears were for some time entertained of a shortness of pro-
visions. The services of Acreman, the master. wete accepted,
and hi brought her home. The Rowena was not in much
danger. Food, water, and medicine were short, and the
court could not but mark with its disapprobation the fact of
• vessel so situate being sent from Sierra Leone to London.
The ship w t a brought safely to Cowes, and there was danger
and ri,k in the master of the Mary gong on board when the
captain of the Rowena had died of fever. The court, under
the circumstances, allotted 1501. and costa.

WESTMINSTER COUNTY COURT.
Before D.C. Moylan, Esq.
GRIM; V. TINME.—SCLITTINO A CAUME or ACTION.—
This was an action of special damage brought by the plain-
tiff, a fishmonger carrying on business in Castlevtreet,
Leicester-square, against the defendant, an agent of Mr.
B. Gregory. On the 21st of February last, whilst the plain-
tiff was at market, the defiluint, accompanied by sic men,
armed with crowbar', sows, eke., proceeded to his house,
No. 67, Castle-street. When they arrived there no one was
present but the plaintiff's wife, whom they told they had
come to repair the house. She wished them to wait until her
husband eamehome, but they refused, and commenced tear-
irgtne flooring up, and pulled down the stairs. On the
plaintiff returning home, he saw what had been done, hut
not wishing to lose his custom, exposed his fish en the board
for sale. The defendont ordered the men to w hitewash the
ceiling ; pails of water and brushes were procured, and the
water thrown upon the ceiling, falling upon the fish, mate-
rially injured it. The next day the defendant nailed boards
up in front of the premises, so that the plaintiff's fish was
destroyed, and had to be conveyed away in the dust-cart.
It was for this wilful damage to the fish that the plaintiff
now claimed compensation. In answer to the learned judge,
the plaintiff said an action would he brought against Barnard
Gregory and the other pull. s for trespass, but it had not yet
been done,—The Judge was of opinion that before the plain-
tiff could proceed in the present action, he must give an under-
taking not to proceed with an other ; if he was allowed to go
on with the present it would be completely contravening the
spirit of the act of parliament, which did not allow asplitting
of a cause of action. The present claim was but one part of
the damage under the trespass; and, if it was allowed, the
plaintiff might bring a separate claim for the damage done to
the stairs and a separate claim for tearing op the floor.
Agiiia, the question of t:tle to the pri•soises would likely
arise.—The defendant said the title was involved in the ques-
lion. Mr. Gregory had been ordered to take possession of
these premises, by order of the Insolvent Court, and the
plaintiff, in keeping possession, was the trespasser.—The
learned Judge, alter hearing Mr. Roberts, refused to go into
the merits of the case—becaua• tint, it wa. asplitting of a ca rise
of action ; and secondly, that us a question of title to the pre-
mises was mixed up in the question, he had no jurisdiction.
It was clearly a cat* for the superior courts.—Mr. Roberts
said if he had been instructed uglier he should have advised
the plaintiff to have gone at once to the superior court.