The Sun.
London, England, 1841-11-12 00:00:00

MORNING SUN

SPIRIT of the PUBLIC JOURNALS.

TEOII THE DAILY PAPERS OF YESTERDAY.

GLOBE.—.TheCOniraitilation; addressed by Lord
Lyndhurst to the company at the Lord Mayor's din-
ner, taken with the history of the " legislative pro-
vision" with which his Lordship connected them, sim-
ply means, that the Tories " struggled'. successfully to
prevent the public from deriving from it the advan-
tages it proposed to confer, by facilitating the adminis-
tration of justice in that Court, which had become a
nuisance rather then a benefit, in consequence of the
tardiness of its proceedings—until they should be able
to select the.additiottal Judges from their own parte
ranks, and provide for the son of Lord Abinger in the
way we have described, by fastening him—as a recom-
pense for a few months occupancy of an enormously-
paid office about to be abolished—a pensioner upon the
public revenue ! So much for the subject-matter of
Lord Lyndhurst's laudatory oration—the "we have
at length been able to obtain," to which the citizens
were expected to respond with suitable " cheers."
Lord Lyndhurst is egregiously mistaken if be sup-
poses that the newly-appointed Chancery Judges, or
the newly-issued Chancery Commission, will remove
" the standing reproach on the Court of Chancer)."
The evils in which that "standing reproach" originated,
sink deeper into the system than they will venture to
sound, and rise higher than they will presume to scar,
in search of their origin, or the patronage which pro-
tects and fosters them. Toe Court of Chancery, to
be worthy of, or worth anything to the country, must
be so constitutes as to be placed in a condition to ad.
minister justice at a cheap and easy rate to all suitors,
be the value of the property in dispute 500,0001.,
or only 50/. To palliate the evils which abound
in the constitution of that Court, is rather to retard
the crisis which assuredly awaits it, and which can
be postposed only to the period when the institu-
tions of the country are adapted to the improved spirit
and character of the age. The additional Judges, "and
the newly-issued Commission, may serve to ward off the
dreade I catastrophe from those of the present g:neta-
tion who batten upon the harassing delays and ruinous
expenses to suitors in that " standing reproach" upon
the public justice of the country. •
STANDARD.—The happy birth of the Heir Ap-
parent, and the safety of a beloved Sovereign, are still
the engrossing eubjects of interest, anti we should fret
shame for the'ilei-eneracy of Englishmen if any other
subject riralled them ; hut there is no cause for appre-
hension of such an occasion to blush. Englishmen
are what they always were.* Their public virtue has
its root where only national virtue can ever flourish—
in the reverence for domestic duties and domestic
affections ; they are the best citie2ns, because they are
first the beet sons, ,husband.', and fathers ; but al
their highest domestic affections are now awakened
symp:thy with their Sovereign aid her family.
It i; almost to desecrate the love of which Queen
Victoria is with so many millions the object, to
mingle witL it any consideration of loyalty, still
more es alloy it eeith a sense of personal interest ; but
were it not indeecree unnecessary tssk to reinforce the
feeling of personal effectiee by considerations of loyalty
and of intcre;t, the birth of an hear to the British
Crown and to the House of Hanover suggests such
considerations in ample profusion. The Crown of
England is held by older, more numerous, and
more sacred titles than any crown in the world.
Its tenure is of the extent of one thousand years at
least ; and though that tenure has been in early times
broken by interruptions, these interruptions have been
brief, and the possession has constantly reverted to
the family of her who • now adorns it. This proves no
Divine right—but it proves the general virtue of the
family to which the glorious inheritance has constantly
been reserved, and the indelible loyalty of the British
nation. The dignity of the Crown of England is in-
deed transcendent, and it has been so guarded by Pro-
vidence to the family hold:ng it for a thousand 3 ears,
that there is some excuse for the votaries of Divine
right. It is, however, upon the heals of the Hanover
branch of the Illustrious House of England that the
British Crown has beamed with the greatest brilliancy
--a brilliancy not less splendid because mild and
beneficent.
COURIER.—There is not a quarter of the British
dominions, widely extended as they are, in which
the birth of a Prince of Wales will net be hailed
with an equal degree of vivid and joyous enthu-
siasm, as that which bailed the auspicious tveet oa
Tuesday throughout the length and breadth of
this vast metropolis. The birth of the Heir appa-
rent to the throne of these realms has been ever
signalized in British history as an occasion for the
outpourings of gratitude and thankfulness to the All-wise
Disposer of all Raman events as well as for the ma,lifes.
tations of that ardent and affectionate loyalty which so
prominently marks the character of Englishmen.
With us, thank heaven ! loyalty is not a bare ab-
straction ; it is a vivifying principle, inspiring senti
Intents of reverence and love for the person of the
Sovereign, of obedience and attaAtment to sovereignty
itsete and if ever the nation was permitted to give way
so its joyoeg and generous impulses wholly and unre-
tser vedly—if ever there was an event connected with the
occupants of the British Throne which may be celebrated
iby all classes. ranks, and conditions of people, as not
only a present blessing but the promise of innumerable
future ones—it is that which thrilled all loyal and faith-
fel hearts with joy on Tuesday list. The nation re-
joices in it as filing up the measure of her Gracious
Majesty's happiness—as gladdening t'.e heart of
}ter Illustrious Consort—not more illustrious by ex-
piked station, than by the sublimest virtues, and as
realising the fondest hopes of an a'ixious and grateful
peienle. Our beloved Queen has nude 'red herself to the
hesits and affections of every class of her subjects, by a
eombina,';on of the rarest moral and intellectual attri-
butes, Iu every quality that, dignifies the woman, and
beeomes the Queen of a free people, our present Gra-
cious Majesty stands alone and unapproached, the per-
fect model of every womanly and queenly virtue, And
therefore it is, that even on personal grounds she com-
mends the dutiful affections of her people. Daring her
short. reign (may it be long and glorious) she has in
evesy act of her life shown herself a truly constitutional
monarch---benevolently anxious to promote the welfare
o her people, to consult their wishes and be guided by
their legitinneeie and constitutionally expressed advice.

MONEY- MARKET and CITY NEWS.
FROM THE MORNINO PAPERS OF YESTERDAY.
/Dux—The &continuance of the second monthly I
snail to Ametea during the four months of December,
January, Fehi•it,,,;azand 11Earch, is complained of in the
City, as, sine, the Ch ,rd steamers began to ply, almost
all other conveyances for' letters have. been disused, so
that, in the event of one steamer failing, mercantile
men are certain to have to sa•:Alt an additional month for
their remittances. •
The practice adopted at the Post-office in Lombard-
street, of closing the windows on foreign post-nights im-
mediately on the clock striking ten, and notwithstanding
the presence of a - vast number of persons who have
come with their lettere,. and who not being the foremost
in the crowd are unable to give them in, is much
complained of anion;; merchants. It is clear that
the parties, by arriving at the Post-office at the
proper hour, have exercised all the punctuality that
can be fairly required, and it is hard that they should
be the sufferers whenever there is a larger concourse than
usual. The liberty of proceeding to St. Martin's-1e-
Grand is not considered sufficient, as, besides the danger
of carrying about valuable property at a late hour, the
same evil is repeated there at eleven o'clock, while at
half-past eleven all means of transmitting the letters is
at an end for the night. An easy method might be
adopted fin- the prevention of this public Inconvenience.
At the given hour a bar might be dropped preventing
the approach of persons to the ()ilk?, while all those
already there might be allowed the advantage of their
punctuality, although not 'so fortunate as to be first at
the window. This would be no more than the public
expect—namely, a fair benefit from their
have a right to ex
eo- and the prevention of a
own punctumi . ,
,_
once mere chance
to important I •
pet sting as a hini. r
_oat
.s n . _ insiness:
Another complaint 0 .i• . i lac eby mercantile men in
that on the mornings on which the foreign
post City is, tnaL . first deliveryofthe
whole of the.
post arrives, the
foreign d with
are sorted,
post is delayed until in order that both may be
the letters
the home communications,
delivered together. Even those persons who have paid
away their letters from the
for the privilege of fetching
.a. c.to
I wait till toot ern
Post-office have been c.ohmpeit
theire packets may not contain
is gone through, although
a single foreign letter. All that these parties require is,
that they may hare their packets when they send for
demand
the more urgent,
them, and they consider their facilities of
as, in consequence of the present
communi-
cation all over the country, orders which arrive in the
in the evening.
morning are expected to be executed
The railroad officers require parcels at an early , hour. and
hants can
this shortns the day to a deerree that the mere
urther sho rt-
not afforde to have their time r operation f
ened by the delay at the Post-Office.
POST.—The Committee of the Stock Exchange have
continued their inquiries from day to day into the cir-
cumstances of the Exchequer bill fraud, and the trans
actions of those members of the house who are understood
to be directly, or indirectly implicated in it. Another
Of the individuals has been required to produce his books
in furtherance of this object. The books are, however,
already in the 'patois of the Crown officers engaged in
the prosecution of Smith and his accomplices. and are
said to have been kept in a manner that does credit to the
party. The Committee have, we are informed, notwith-
standing this, so doggedly insisted upOn the production of
them as to have called flirth from the gentleman tinder
examination an expression of defiance, and from a
higher qurter a rebuff such as was perhaps more than
the case demanded. The Stock Exchange is a Court of
the wisdom of whieh the public h • toomuch •
a
ence ttire-ifuire that it should
trouble itself with the duties
of the -lloine-ete„-- but yet it is undoubtedly to be
thanked for its .virtuous
intentions.
We see it stated in the papers
Paris Bourse hats just di
that a jobber of the
disappeared, and that he is
strongly suspected of having •
bill affair. 'Phis ng been concerned in the Ex-
chequeridea is encouraged by the
knowledge that Rapallo cawith the French capital, rnd . ried on an active intercourse
and it is assumed, as highly
probable, that the suspected jobber may have absconded
to avoid the consequences
of the late disclosures, as
there is no doubt that the fre
ffected byiiuenters of the Bourse mintbe more or less a
them.

ST. PETER9BURGH) OCT. 29; Up to the
21st, 1,038 ships have arrived at }lip. The departures
were 1/034.

LAW INTELLIGENCE.
COURT OF CHANCERY, Nov. 11.

The LORD CHANCELLOR took motions and causes to-
day.
BRIERLY V. BOURCHIER.—JUDGMENT.
The LORD CHANCELLOR gave judgment to-day in this
case, which was argued before the Court a few days
since. The only question in the case was whether, under
the will of a gentleman named Owen Gray, his son,
Nathan Gray, had an absolute power of disposition over
the estate in question, or whether he had only a life
estate in diem. 'Upon the case coming on before the
present Master of the Rolls, his Lordship decided that
Nathan Gray
.had an absolute power .of disposition of
the property in question, and from that decision the
party against whom it was pronounced appealed. That
appeal was argued a few days since, and the Court now
gave judgment. His Lordship, after going over the
facts of the case, stated his opiLion to be that the judg-
ment of the Court below was correct, and ordered it to
be affirmed.

The COURT then proceeded to hear appeal motions.

ROLLS' COURT; Nov 11.

The MASTER of the Pious was occupied all the morn-
ing in hesring motions, none of which had any features
of general interest.

BARBER V. SW NN.

Mr. TURNER, with whom was Mr. Brno, stated that
this case came before the Court upon exceptions to the
Master's report. A gentleman named Barber was seised
in fee of the property in question, and in January, 1832,
agreed to sell a certain portion of it to two gentlemen
named Buddel. On the 9th of February, 18:32, Messrs.
Buddel agreed to sell the property to a person named
Wollason, and on the 22d May, in the same year, the
Buddels authorised Mr. Barber to receive the purchase
money that would be due'to them from IVollason. On.
the
.Bth February, 1833, Wollason became a bank-
rupt, and the defendants, William Swan and
Samuel Timmings, were appointed his assignees. The
bill was filed by Mr. Barber and Messrs. Buddel
against Messrs. Swan and Timmings as the assignees of
Wollason, and against Samuel William Haynes, the
petitioning creditor and solicitor under the commission,
who claimed a lien on the property, upon an agreement
for a conveyance, by way of mortgage, made to him by
Wollasan on 18th September, 1832. The cause came
on to be heard in July, 1838, and a decree was made
for a specific performance, but the right of con-
veyance of the property being in question between
Haynes and the assignees, it was ordered to be referred
to the Master to inquire to whom the conveyance
ought to be made, and on the 10th of February, 1841,
the Master -reported that conveyance of the. propel ty
ought to be made to Mr. Haynes. Two exceptions were
taken to this report—first, that the Master ought to have
found that the conveyance ought to be made to the
assignees ; and secondly, that he ought not to have re-
ported that it ought to be made to Mr. Haynes.
The Learned Gentleman said that under the circum-
stances of the case there was strong ground to pre-
sume that there never was any valid conveyance from Wol-
lason to Haynes ; and, moreover, that if there were Mr.
Ilaynes had concealed it, notwithstanding many occa-
sions had occurred in which it was his duty to have
brought forward his claim, and had permitted the as-
signees to lay out upwards of 1,0001. on the property in
building without informing them of it, and, therefore, if
the mortgage subsisted, it was not competent for him to
set it up against their title ; and that if Haynes was en-
titled to a conveyance, it was to a conveyance by way of
mortgage only, and that still a conveyance should be
made to the assignees, subject to the mortgage to
Mr. Haynes.

Mr. RINDERSLEY, on behalf of Mr. Haynes, contended
that his client was entitled to a conveyance of the fee
simple and inheritance of the property, by way of mort-
gage, than which neither then, nor at any other time,
had Mr. Haynes made any other claim. The bill al-
leged that Mr. Haynes had no claim at all,. and that the
assignees were entitled to the conveyance of the pro-
perty, on the ground of the money they had
laid mit upon it ; but, in their own state-
ment of facts, there was no suggestion that
they had expended the money in ignorance that
Mr. Haynes had a lien on the property; they only said
that Mr. Haynes had not communicated it. The equity
they attempted to set up was such as no one would. dis-
pute if it existed ; but there was nothing in the affi-
davit to show that they wore led into the expense they
had incurred on the estate, without being aware of a
charge upon it. The reason it did not appear
in the balance-sheet of the bankrupt's accounts
was, that it was not thought necessary to in-
clude that or the other liens on the estate.
l_Tp to the moment at which the proceedings commenced
Mr. Haynes had no reason to believe but that the as-
signees were perfectly well acquainted with his claim. It
was stated that on one occasion Mr. Haynes stated it to
Mr. Timmings, who said that it was of no effect, and that
subsequently Mr. Haynes wrote, offering to submit the
validity of his lien to arbitration. The money expended
on the property by the assignee was not laid %nit until
after they had received full notice of the lien ; and, there-
fore, if they, nevertheless, thought proper to expend
money on the property, Mr. Haynes was en.titled to the
benefit of it. He, therefore, asked of his Lordship to
Overrule the exceptions, and when the case should come
on for further directions to deal with it as he should
think fit.

Lord LA NG D A LE, after hearing Mr. Turner, in reply,
said that it appeared to hint that the evidence before the
Master on the part of the exceptants did not establish that
distinct equity, by, virtue of which he could establish that
a conveyance such as was sought ought not to be made
to Haynes. He, therefore, thought he must overrule
the objections, and decree that the conveyance must be
made to Haynes, subject to being redeemed by the as-
siguees•. The only difficulty he might have on fur-
ther directions was one which he owned he
might try to get over. He did not think that
it was as clearly made out as he could desire, that
the assignees had full and complete knowledge of
this lien, though they had some knowledge, no doubt.
lie should therefore try and so frame the decree, as to
leave it opn to the assignees to try other means to esta-
blish their equity, if they should be so advised.

VICE-CHANCELLOR'S COURT, Nov. 11.
(Before Vice• Chancellor KNIGHT BaucE.)
This being motion day, his Honour, on the sitting of
the Court, disposed of a few, which were on the paper,
and thou proceed to hear causes.

SEARLE V. COLT AND OTHERS.
The parties interested in the cause were the plaintiff,
Edward Searle, the personal representative of a person
named Andrew Searle, to whom the defendants Mr. and
Mrs. Colt granted an annuity of 1221. per annum,
charged upon certain freehold premises in Bushbury, in
the county of Stafford. Sir John Dutton Colt was the sur-
viving trustee of the marriage settlement of Mr. and Mrs.
Colt ; and in him the legal fee of the premises was
vested, and Robert Abraham, the legal personal repre-
sentative of a subsequent grantee of an annuity which
was charged on the same premises as the original an-
nuity, and also upon certain leasehold premises in
the county of Herts. Both the plaintiffs Edward
Searle, and the defendant, Robert Abraham, claimed
representatively. Abraham had also vested in trust for
him, as upon legacy, an old mortgage term for 500
years, which affected those freehold premises at Bush-
bury, and which term was created in June, 1749. The
object of the bill filed in the cause was, in sub-
stance, to insist that the annuity granted to the in-
testate of the defendant Abraham was in effect void for
want of proper enrolment, and to obtain for the plaintiff
the benefit of 500 years, which term, either in whole or
part, was vested in a person named Bevon, for
the benefit of Mr. and Mrs. Colt. The plaintiff
claimed the assignment of that term as a fur-
ther security for the payment of his annuity.
The facts of the case were these. On the marriage of
Mr. and Mrs. Colt in March, 1804, a marriage settlement
was executed, by which the freehold premises at Bush-
bury were conveyed to two trustees, the survivor of
whom was the defendant, Sir John Dutton Colt, upon
trust during the life of Mrs. Colt, so as to rest the legal
fee in those trustees to pay the yearly rents, profits, &c.,
of those premises to such person or persons, or for their
use, as Mrs. Colt should from time to time direct, or for
want of such directions then to pay the rents and profits
to Mrs. Colt during her life to her separate interest.
The legal fee in those premises, therefore, by that set-
tlement became vested in the trustees ; and long
antecedent to the execution of that settlement
the mortgage before-mentioned, for the term of 500
years, was created on those premises, and vested in trust
for Abraham in the following way :—At the time of the
assignment, there was due upon the mortgage of that
term, a sum of 46,1 L, to a person named Smith, who,
upon the occasion of granting the annuity to the de-
fendant Abrahams, intestate, assigned that term to
I,evon upon trust, for the purpose of securing the annuity
to
Part of
subject
.to any trust for Colt and his wife.
of Abrahams' consideration money for the purchase
of
the annuity went to pay the mortgage to Smith.
long antecedent to those transactions Mrs. Colt granted
an annuity of
19q. per annum to And
life of Mrs. Andrew Searle,
the plaintiff,
7
intestate.cnit That was an annuity during the
date
consideration money for it was
93/.; and the eof the deed granting that annuity
was April, 1810. it
premises of Bushbur ~wanal charged upon those freehold
were conveyd by ~51.13, the same deed those pre-
misesfor Jr. and Mrs. Colt to a person
named James Thorpe,
Colt should so long live. inertetrlm of 99 years, it' Mrs.
the better securing that
payment to him of it.
annuity, and by the same annuity-deed, Colt, the husband,
olt or his
covenanted with Searle for the due
The annuity was paid from time to time
his wife to Searle. It was paid, according toYthe plaintiff,
down to some time in the early part of the
'l'hat point was one of those as to the satisfactory prooflB2o.
of which a question was raised by the defendantrs
bill was filed in' November, 1839. It appeared that i 1
1
October, 1820, the plaintiffs had arre,ted Colt the hus-
band for two quarters of the annuity then due, obtained
judgment against him, and charged payment in execu-
tion. Searle, in whose favour that annuity was granted,
died in the year 1533, and it does not appear that any
part of the annuity was paid since the year 1820. Scarce
died intestate, and the present plaintiff had taken out an
administration to his estate. It was upon that state of
facts, the plaintiff founded his title.
'The arvuments in the cause had not been terminated
when the Court rose, shortly before four o'clock.
(Before Vice-Chancellor WIGRAM).
His HONOUR was engaged this morning in hearing
motions, none of which presented any feature of public
interest.

COURT OF QUEEN'S BENCH, Nov. 11.
BROOKE. V. JENNY AND OTHERS.
This was an action of trespass, brought by Mr. Abra-
ham Brooke, a wine-merchant, residing at Woodbridge,
In Suffolk, against the defendant, surveyor of highways
for the parish of Hasketton, for having entered a certainfield, his property, and cut and carried away certain
trees and bushes. The case was tried before Mr. Justice
Patteson, at the Suffolk Assizes, and a verdict had for
the defendant. A rule for a new trial was now
moved for, on the ground of the verdict being

against the evidence, and of misdirection. It appeared
that the plaintiff was the owner of a certain field
adjoining the high road in the parish of Hasketton,
which he leased to a person named Butcher, reserv-
ing the trees and bushes which grew on the road side. The
defendants, as surveyors of high ways, laid an information
before the Magistrates and summoned the plaintiff, and
at the Sessions it was alleged that the trees and bushes
overhung the road, obstructed the sun and wind, and
thereby injured it. An order was made by the Magis-
trates on the 27th of November, 1839, directing the
plaintiff to cut, prune, or plash the hedge, which it was
alleged the plaintiff did in an improper way, and a man
was employed by the defendants to do so, and it was
while executing their orders that the alleged tres-
pass was committed. At the trial evidence of
a very contradictory nature was given, the wit-
nesses for the plaintiff alleging that the hedge
did not cause any damage or injury to the highway,
while for the defendants it was said that the plaintiff
bad suffered no injury by the manner in which the thorns,
&c., had been cut and pruned.
Mr. ANDREWS appeared to show cause against the rule.
One of the objections of his Learned Friend was that the
land in question was not in the possession of the plaintiff,
but in the possession of his tenant, Butcher ; but if that
were so the plaintiff could have shown before the Ma-
gistrates that he was not the owner, which he had
failed to do. Another objection to the order of
the Magistrates was that it should not have
been given in the alternative, " to cut, prune, or plash,"
as the Act the sth and 6th Geo. IV. cap. 50, gave them
no power to make an order in that form. A further ob-
jection was, that the order did not state the purpose for
which the hedge was to be cut or pruned ; and that it did
not state in express terms that the plaintiff was the
owner of the land next adjoining the high road. Now,
with respect to that objection, the order set out that the
plaintiff was the owner of the land on the right-hand side
of the highway ; and he had taken the trouble to refer
to Johnson's Dictionary to ascertain the meaning of the
word " side."—(Laughter.) The explanation given was,
" border, verge," or " edge," which, he submitted, was
a complete and pesfect description of the plaintiff's lend.
Lord DENMAN did not think it was necessary for the
Learn td Counsel to descend to such minute criticism—
it restrd with the other side to show that the description
was insufficient.

Mr. ANDREWS would put an end to all the objections
on that point by a reference to the 108th section of the
Highways Act, which provided that the omission of
matters of form should net vitiate the orders of Ma-
gistrates. A further objection to the order was,• that
it did not set out any offence ; but he contended
that the neglect to cut or prune his trees or bushes
was an offence under the Highway Act. Now,
with regard to the objection that the Magistrates
had no power to give an order in the alternative, he sub-
mitted that it was for the benefit of the plaintiff that the
order should be so given, inasmuch as he would adopt that
mode which was likely to do least injury to his hedge.
Lord DENMAN did not think that the Magistrates had
acted improperly in giving-the order in that form, because
until the surveyor went there and examined the obstruc-
tion, he could not tell what would be the best mode of
removing it.
The Learned Counsel concluded by submitting that
the finding of the Jury was correct, and that there was
no ground for disturbing the verdict.
Mr. BYLES followed on the same side.

Mr. KELLY was heard in support of the rule. It
would certainly be a matter of much surprise and regret
to him, if their Lordships should be of opinion that a
surveyor proceeding under the Highway Act would be
justified in destroying the property of one of the Queen's
subjects in the manner that bad been shown in the pre-
sent case. He would remind the Learned Judge before
whom the case was tried, that a portion of some of the
trees was produced at the trial, and they were of a
height and thickness which, in Coe eyes of any fair
Jury would have at once put an end to the
case. Their Lordships would be of opinion the
ease must go down for a new trial, inasmuch
as the verdict Was against the evidence given on both
sides. He was satised that when he had called their
attention to the terms of the Act of Parliament, and the
defects in the order of the Justices, they would be of
opinion that these proceedings could not be maintained.
He was surprised at the argument of his Learned Friend,
that because the plaintiff in the first instance sought to
obey the order he acquiesced in what was done after-
wards. That was an argument which would have
very little weight with the Court. He would now
refer to the language of the-63th section, because
upon it the whole question turned. Now the
effect of the section was, that where a manager alleges
before Justices that the owner of certain land or hedges
next adjoining the highway had failed to cut it, and that
the sun and wind were prevented from coming to the
road, whereby it was injured, then the Justices might
determine the question between the parties, and might
make an order upon the owner of the land to cut and top
his hedge in such manner as that the road should not
be prejudiced. Then followed a proviso, that where
the Justices made an order, and the owner of the land
refused to obey it, then the surveyor himself may
proceed to do the act. It was as clear as the lan-
guage of the Legislature could make it, that the power
of the surveyor to cut these trees was conditional, and
dependent upon the Justices having made such an order.
Now, he thought he could show their Lordships very
conclusively, that the parties never made such an order
within the meaning of the Act of Parliament.
Lord PENMAN thought the order was a sufficient pro-
tection to the surveyor. lie could not be supposed to
examine with special pleading accuracy that the order
was in the precise terms of the. Act of Parliament. It
was only necessary that the thing should be substantially
correct, and then the surveyor was bound undera penalty
to do it.

Mr. KELLY submitted that the real question was,
whether the order was legal for not ?—and to answer
that, they must look to the framing of the Act of Par-
liament. If the defendants in the present case had
not complied with its provisions, the verdict could
not be supported. Now, the order directed the
surveyor to cut and prune these trees, but it did not
state the object for which that act was to be performed,
and that was an express contravention of the terms of
the statute. The Learned Counsel having referred to the
other points in the case,
The COVET said it was impossible not to lathent that
when the wording of the statute was so clear that
it had not been adopted in the order of the Ma-
gistrates, and thereby have saved the very long
argument that had taken place upon the question.
The objection on that point appeared to the Court to
be a good one, because when a party was called upon to
exercise a discretion his attention should be called to the
object for which that was to be done. On these grounds
the Court was of opinion that the rule for a new trial
must be made absolute.
*JONES V. GURDON.

This was an action for an assault and false imprison-
ment, brought against the defendant, a Magistrate of the
county of Suffolk. The case was tried before Mr. Jus-
tice Patteson, and the plaintiff was nonsuited, with liberty
to move for leave to enter a verdict for 101.

Mr. ANDREWS now appeared to show cause against
the rule. The facts of the case were as follows :—The
plaintiff was brought before the defendant and the officer
of Excise of the district on the 25th October, 1839, and
charged with having on the 22d October, 1838, shot at a
hare, without a game license, and thereby incurred a
penalty of 201. It appeared that shortly after the alleged
offence took place, the plaintiff left his home, and did not
return for six or eight months afterwards, and that would
account for the delay that had taken place in the com-
mitment. For the plaintiff it was alleged that the con-
viction not having taken place within three calendar
months after the date of the offence, the "party could not
be convicted in the penalty of 201. under the 52d George
111., c. 93, but that lie should hare been convicted undr
another Act, the 43d George 111., which limited the pe
nalty to 51. He submitted, however, that Mr. Gurdon
had good defence to the action, because, where the Ma-
gistrate acted erroneously it was held that an action of
trespass could not be maintained against him, but only
an action upon the case, and even an action on the case
could not be maintained unless it was averred and proved
that the Magistrate had acted maliciously.
Mr. BYLES followed on the same side.
Mr. KELLY submitted that there was no legal authority
for the proceedings taken in the present case, and that
the Magistrate had no jurisdiction in the matter. By the
Act the Magistrate was bound to issue a summons, and
bring the party before him; but that had never been done
—no" opportunity was given him of bringing forward his
witnesses and meeting the case, and without any previous
inquiry a warrant was issued for his apprehension. That
warrant was not put in force for six months after his re-
turn home, and he submitted that there never was a
grosser violation of all law than the apprehending the
plaintiff under such circumstances, and sending him to
prison for 38 days. Independently of the want of juris-
diction in one Magistrate to adjudicate upon an informa-
tion laid before another, he submitted that the conviction
was a direct violation of the statute, which provided that
it must be laid within three months after the offence had
been committed.
The COURT took time to consider its decision.

was only the factor of Clapham ; that the money ad-
vanced to the latter was in the • nature of loan,
to be repaid as the goods of the borrower happened to be
sold fur him by the plaintiff--that the property never
was in the plaintiff—and that the defendants, having the
goods in their possession, hail a lien on them for
freight and wharfage. The case was tried at Guild-
hall before the Lord Chief Justice, and the Jury
found for the plaintiff in damages 5001. Mr.
Sergeant Channell obtained a rule nisi to set aside
the verdict, on the ground that the verdict was
against evidence, inasmuch as it was proved that the
property had not passed from the consigner to the plain-
tiff, there having been no bill of lading or other instru-
ment by which it could appear that the goods were con-
signed for plaintiff's own use.
Mr. Sergeant TALFOURD showed cause against the
rule, and
Mr. Sergeant CHANNEL replied at great length.
Their Lounsiares, after a brief consultation, discharged
the rule.

THE SUN, LONDON, FRIDAY, NOVEMBER 120841.

compromise for 10s. per pound was entered into with his
other creditors, but the defendant refused to come in.
The father-in-law of the plaintiff thinking it would prove
his son's ruin, gave the defendant 551. I 9s. Bd. to induce
him to sign the deed of composition. This was clone
without the knowledge of the plaintiff. As soon as he
became aware of it he brought his action for the recovery
of the excess. It was tried before Lord Abinger, who
nonsuited the plaintiff. Mr. Erie had obtained a rule
nisi to enter a verdict for the plaintiff, or for a new trial,
cause against which was now shown by
Mr. TEESIGER, who contended that as the father-in-law
had paid the money voluntarily, as there was no pressure
upon him, he could not maintain an action for its recovery;
and as he could not give the plaintiff a title which he had not
himself, the nonsuit was right. The Learned Gentleman
cited many cases in support of his view of the case, and
also to show that the transaction having been concluded,
no action was maintainable. He admitted that had the
defendant been seen seeking to enforce an agreement
which was clearly in fraud of the other creditors, he
could not have recovered, as its illegality would have
been a good defence.
Mr. ERLE and Mr. BRAMWELL appeared in support of
the rule, and contended that a fraudulent preference was
in itself illegal, even although the money was not that of
the debtor. As the defendant could not enforce any
such an illegal agreement, could he do so indirectly by
circulating the bills given him for such preference ?
The COURT
,were of opinion that there should be a
further inquiry, because no evidence had been given of
the payment of the bills. Neither did it appear that
they were in the hands of third parties, when they were
paid. They would therefore make the rule for a new
trial absolute, the costs to abide the event.