The Sun.
London, England, 1841-11-11 00:00:00

LAW INTELLIGENCE.

COURT OF CHANCERY, Nov. 10.
The LORD CHANCELLOR took appeals to-day.
PRICE V. NORTH.

A gentleman behind the Bar applied to the Court this
morning in this case, under the following circumstances:
—The case, which was in fact a rehearing from the
Equity Exchequer, had by some mistake been answered
by Lord Abinger as a common petition ; such being the
fact, he had now to ask the leave of the Court that the
case might stand on his Lordship's paper of rehearings.
There was evidently some mistake about it, the manner
of answering the petition by Lord Abinger being the
following :—" Let all parties Attend me in the matter of
this petition on the first petition day in Term." Whereas
by the Act lately pasSecl the jurisdiction of the Equity
Exchequer had been done away with..
The LORD CH.i.xcELLott--That was struck out, and
the following appears to have been inserted—" Let this
cause be set down to be heard upon further directions—
hereof give notice forthwith." Now that was not ae-
cording to the practice of the Court of Exchequer, and
it was necessary, therefore, to make a special application
to the Lord Chancellor on the subject. Looking to the
order of Lord Abinger, his Lordship thought that the
original order to which Lord Abinger'i signature had
been annexed, had been struck out and the present one
substituted by the Solicitor in the cause.
Mr. GIRDLESTONE, who was one of the Counsel in the
cause, thought it probable that the alteration had been
made by one of the cificers of the Court.
1.1;e LORD CHANCELLOR thought the subject should
be inquired into, because if the irregularity he had
pointed out, had been committed, a new order must be
made. It seemed to have been assumed that Lord
Abinger had made an order for a rehearing, when, in
fact, he had not done so.
The case was then ordered to stand over, in order
that inquiry might be made as to what had taken place.

rounded on all sides by parts of the parish. The defen-
dant set up two defences ; first, that no tithe had been
paid for more than 63 years, 60 years being- the period
within which Lord Tenterden's Act 'restricted the re-
vival of a dormant claim ; and, secondly, that even if the
case did not come within that Act he was not
lialsie, because Benefield Lawn was extra-parochial. The
other defendant Sir Arthur de Capel Brooke did not
suggest that the lands belonging to him were extra-
parochial. His lands were of four descriptions ; part of
them were granted to him by letters patent of Elizabeth ;
another part by letters patent of Charles the First ; a
third part had been allotted to him in. 1832, and the last
were lands allotted to other persons. in 1832, and since
purchased by him. Now, with reFard -te the Act of
Lord Tenterden, it appeared to him that the enacting
part was so worded, that if it had not been 'fOi the preamble
the words were not large enough to entitle an one who
could prove that tithes had not been paid for sixty-three
years, to claim exemption under that Act. His Honour
then cited the preamble. The object of the Act appeared
to be to provide for cases in which too long a time was
required; and he thought, therefore, tleat its application
must be confined to such cases. 5.1 e defendant had not
carried back his proof for sixty-three years, and there-
fore had not brought his case within the exemption. The
last section of the Act said, that in the case of a party
claiming exemption, he should not have the benefit of
any such presumption, and therefore he was bound
to say that he had not proved this to be a case
of exemption. and must pay the tithe. The de-
fendant said that the plaintiff had, by his own bill,
brought the case within the operation of the Act, and
then the prescription was set forth as a claim to exemp-
tion. The lands had been exempted from payment dur-
ing a certain period when they were held by the owner.
In 1832 the plaintiff stated that the lands had been trans-
' ferred from the Crown to certain ether persons,
and insisted upon the payment of tithes. His statement
was that they had been Crown lands, but that
having passed from the Crown, they were now liable.
The defendant alleged that from time immemorial the
tithe had not been paid. If the case were to rest upnn
the bill they must take the whole statement, and, there•
fore, the fact that these tithe lands, formerly held by the
Crown, had since passed into the hailds of a subject. He
thought, therefore, that, as far as the defence rested upon
Lord Tenterden's Act, both the defendants had failed.
With respect to Sir A. de C. Brooke, he thought the
plaintiff had made out a good cause, and he must take an
account against the defendant for the payment of tithes.
With respect to the other defendant, a defence was set
up that the land was extra-parochial. lie had proved
that there had been no payment of rates or tithes for
many years. Witnesses had been called on to prove
that about ter. years ago the parish officers caused a rate
for the relief of the poor to be made on this property ;
that there was a distress to recover it ; that that was re-
sisted, and that after two or three days the distress was
returned ; and, in fact, the rate was never paid. It
was also distinctly proved that for thirty-four years
no rates had been paid in respect of this property.
If the case rested upon that evidence, he could not make
his decree for the defender t. The land, it appeared, had
been part of a forest, yielding little or no profit. and as
the claim, whenever made, was sure to be resisted, of
course the rate would not be levied while so little could
be gained by litigation. His Honour then commented
at sonic length on the evidence, and said, that if the case
had rested upon the defCndant's bill, he would have
made a decree at once; but, as the plaintiff had attempted
to prove his case by refutation, and had, in that respect,
failed, he must direct an issue. The evidence had
brought his mind to a balance. The question of boun-
dary or no boundary, was a fit one for a Jery. He
would leave the case open for i few days, but at pre-
sent his opinion was, that the case should be sent to a
Jary to try whether Benefield Lawn was occupied by
the defendant as part and parcel of the parish of Cot-
tingham or not. His Honour then directed that the
cause should stand at the head of the paper on Mon-
day next.

SALKELD V. PHILLIPS. '
The hearing of this ease was brought to a termina-
tion. His Honour postponed his judgment.
The Court rose shortly after three.

COURT OF QUEEN'S BENCH, Nov. 10.

THE QUEEN V. THE LEICESTER AND NORTHAMPTON UNION

CANAL COMPANY.

In this case a rule had been obtained against the de-
fendants, calling-upon them to show cause why a manda-
mus should not issue directed to them, and commanding
them to make a uniform rate of toll or tonnage upon all
coals to be conveyed along the line of their canal, or
to reduce the rate of tonnage charged upon coals con-
veyed from Northampton to Market Harborough along
a portion of the line. •
Mr. Sergeant MANNING now appeared to support
the return that had been made to the mandamus.
The return set out, in the first place, the various
Acts under which the Company had been incorpo-
rated. The first Act, passed in the 33d year of the
reign of George the Third, by which certain parties
were empowered to make a canal from Leicester to
Northampton; by the 45th of the same reign the Com-
pany were empowered to alter the line of their canM ;
and then there was a third Act passed in the 50th Geo.
111., incorporating another Company with power to
make a canal from the Grand Junction Canal to the
Leicester and Northampton Union Canal, th....reby
uniting both. Now the canal originally proposed from
Northampton to Leicester was only carried eighteen miles,
and from thence there was a collateral cut to Market Ha-
borough, making the distance 24 miles, and for that dis-
tance the Company were authorized to charge ss. per ton,
and did charge 4s. 4d. A different rate of tolls was
charged along the remainder of the line, . and the people
of Market Harborough, by whom the mandamus had
been applied for, complained that they were charged a
higher rate of toll for the distance than was charged for
coals going a longer distance on the line. Now he sub-
mitted, that there was no pretence for raying that the
defendants could make a uniform rate of toll along the
entire line, inasmuch as the remainder of the line had
been formed by another Company, with different powers,
and authorised to levy different rates of toll. An attempt
was made, by his learned friend Mr. Hill, to make the rule
absolute in the first instance, on the ground that the defen-
dants had violated the provisions of the Act, and he (Mr.
Manning) had not an opportunity, on the occasion, of
addressing their Lordships, as he was at the time before
Mr. Justice Patteson endeavouring, but unsuccessfully,
to effect the liberation of a prisoner.
Lord DENMAN—Probably, if you .had been here, the
prisoner would have been set at liberty.—(Laughter.)
Mr. Sergeant MANNING submitted, that under the pro-
visions of the 3d Act of Parliament, by which the Grand
Union Canal was formed, the -Legislature expressly
sanctioned the principle of charging a rate of ton-
nage, modified by circumstances, and by the destination
of the coals or other goods to be carried thereon.
The Learned Counsel, after, referring to the various
authorities on the point, submitted that the return was
good, and. the rule for the mandamus ought to be dis-
charged.
• Mr. PEACOCK, in support of the mandamus, contended
that the return was false, inasmuch as the defendants set
out that. they were authorised to take and levy. certain
rates and tolls. The prosecutors complained that the
rates were unequal, and the defendants iti the first place
alleged that they were authorised to levy these varying
rates, and secondly that they had never been applied to
to equalise the rate of tonnage. The question before,the
Court was whether the return of the defendants was a
sufficient answer, and he submitted that it was not.
After hearing the arguments of Counsel, which lasted
for several hours,
The COURT was of opinion that the return was good,
and the judgment of the Court must be fcr the defendants.

COURT OF EXCHEQUER, Noy. 10.
BOUCHER AND ANOTHER V. DOUGLASS.

This was an action tried before Lord Abinger in Lon-
don, when a verdict was found for the plaintiffs for 3601.
Mr. JamEs now moved for a rule to show cause why
the verdict should not be set aside, and a new trial had.
It was an action by the assignees of a bankrupt named
Maitland, to recover the value of several bills,
alleged to have been given to the defendant by
way of fraudulent preference, while the bankrupt
contemplated bankruptcy. Maitland was a leather
factor who had borrowed the above of the de-
fendant for which he had given his bill, which
would fall due on the 29th of October. On the 22d, the
bankrupt went to the defendant at Winchester, and gave
him a variety of acceptances, in substitution of the
other. It was proved at the trial that, previous to the
22d Oct., Maitland was in insolvent circumstances ; that
he had overdrawn his account 'at the bank, and that one
of his creditors had given him notice to give hail fur his
debt within twenty-one days, otherwise he would become
bankrupt. The tint was dated the 10th November; he
Mr. James) contended that there was not evidence
enough to show that, on the 22J October, the bankrupt
contemplated bankruptcy.
The CounT considered the Jury had come to a right
conclusion—the notice for bail wus a strong fact in the
case.—Rule refused.
FAULRENER V. 31`CABE.
Mr. S. WORTLEY moved to set aside the verdict, which
was for the defendant. The action was brought to re-
cover the value of certain certificates of shares from the
'public officer of a bank. It was tried at the late Liver-
pool Assizes, before Justice Wightman. It appeared
that the plaintiff, in March, 183 S, employed his brother,
who was a share-broker, to purchase for him certain shares
in the London and Birminghamliailway Company, the pay-
ment for which was to be made out of a sum of 9001. in the
hands of John Faulkener, the property of the plaintiff.
John Faulkener made a bargain with another broker,
named Hampson, for twenty quarter-shares in the above
railway, for 711/., to be paid fur on the 3d of July.
A contract note was made out and signed by the owner
of the shares, and it was clearly and distinctly in the
name of the plaintiff: On the 3d of July Hampson 4-
-died to Juhn Faulkener for payment but he, in fraud of
his hi-other, had dealt with the 9001, and could not pay.
He asked Hampton for and obtained the certificates, which
he took to a joint-stock bank in which he was
a shareholder, and although it was then after bank
hours, he immediately obtained an advance of 7001. upon
the certificates. After that John Faulkener became
bankrupt; he was considerably indebted to the Bank,
which held many shares as security, the whole of which
were sold, and amongst them those belonging tq the
plaintiff. To prove that fact, he
(Mr. W.) called both
Hampson and the broker who sold them on the part of
the Bank ; and, in order to identify
them, he asked the
witnesses what were the number of the shares. The
question was objected to. It was said he was
inquiring into the contents of a written docu-
ment, and his Lordship held the objection to
-be good. On that part of the case the Learned
Gentleman contended that he did not want to know any
thing of the contents of the certificate—all he wanted
was to treat them in the same manner as any other
chattel which had a particular mark upon it for assis;ing
its-identification ; and-in support of his view of-the case'
he cited the cases of Butcher v. Jarratt, 3d Bosanquet and
Pullar ; Jolly v. Taylor,lst Campbell, 140 ; and White-
head and Scott: He further complained that his Lord.

THE SUN, LONDON. THURSDAY, NOVEMBER 11 lB4l.

ship had left a question to the Jury upon which there was no
evidence. He left it to the Jury to say whether the shares
were purchased for the plaintiff, or whether they NI ere
not purchased for the account of John Faulkener him-
self; and the contract note an afterthought. Now there
was no evidence of that at all, but Mr. Cresswoll, with
that tact which distinguished him, mooted the point
in his reply, and they all knew with what peculiar effect
his Learned Friend addressed a Liverpool Jury.On these
grounds he trusted their Lordships would think the case
worthy of further consideration.
Lord ABINGER considered the Learned Judge had
acted right. The number alone -would not- prove that
the paper was a certificate—it was part of a written in-
strument, and must be proved.
Baron PARKE—If -the objection be taken, .it is one
that must prevail, however hard it may be. He thought
the Learned Judge was right in rejecting the evidence,
and also in leaving the question of, for whom the shares
were purchased, to the Jury.
The other Barons agreed, and the rule was refused.
SOMES V. LAWSON.

This case came before the Court upon a demurrer to
the plaintiff's plea.
Mr. PLATT applied to amend, of course, upon pay-
ment of costs.
Mr. Bovm hoped their Lordships would not grant the
application as a matter of course. The defendants had
already applied at Chambers, and got leave to amend,
and then they pleaded this plea, which was not in ac-
cordance with the rule: The action was for a series of
libels upon the defendant and his ship, and many Terms
had already been lost by the demurrer,
THE COURT—Let the plea be amended in two days,
and let the case stand in the paper for Monday next.
If, after the amendment, the plaintiff is not satisfied with
it. he may then come and argue his demurrer. The trial
will then not be delayed beyond the sittings after Term.

BAIL COURT, iNov.lo.l
. EX PARTE

Mr. ERLt applied for a rule calling upon an attorney
of the Court to show cause why he should not pay to•
Messrs. Bailey and Shaw the sum of 151/. 155., with in-
terest thereon, and also the costs of this application. It
appeared that the attorney had been applied to by Bailey
and Shaw to sue a person named Pulman on a promis
sory note for the above sum—that Pulman in April last
had paid the amount in question to- the. attorney, who
represented to tho plaintiffs- that Pulman had not
paid it—that in July the attorney acknowledged
he had received the money from Pulman, and ap-
propriated .it to his own purposes, and that he
was unable to pay the same to Bailey and Shaw. An ac-
tion had been brought against him. and the venue laid in
Bristol. The Attorney had pleaded his privilege, and
brought it back to this Court, and thus had gained the be-
nefit of the long vacation. That action had been discon
tinned, and the costs tendered to the defendant. Under
these circumstances the application had been made.—
Rule granted.