The Sun.
London, England, 1841-12-10 00:00:00

MORNING SUN

order it might afterwards think fit to make.
The Act of Parliament, however, could not be obtained
during the last Session, as the House of Commons had
come to a determination of not proceeding with any
Private Bills; and in the meantime the works complained
of had been since continued by the Company.
After some conversation among Counsel it was agreed
that the Company should undertake, by their Counsel, to
proceed with their application to Parliament, and that
the question of the legality or illegality of their acts
should be tried by indictment, and not before the Court.
The whole order stood thus—" The defendants, by their
Counsel, unde=ke to proceed with their application to
Parliament; an also undertake, by their Counsel, to
submit to, and abide by, the order which the Court may
think fit to make ; on condition, nevertheless,
that the Attorney-General do, on or before
the last day of Hilary term next, indict the
Company, to which indictment the defendants under-
take to appear, and to plead in such manner as to
try the question, whether the acts complained of in the
indictment are legal ; but the Company admitting that
that which they have done respecting the bridge over
Bermondsey-street is contrary to the Act of Parliament,
no indictment is to be preferred in respect to what they
have done with regard to that bridge." The motion was
ordered in the meantime to stand over, with liberty on
both sides to apply.
Mr. Bethell appeared for the Attorney-General, and
the Solicitor• General for the defendant.
(Before Vice-Chancellor KNIGHT BRUCE.)
TULLOCII V. lIIRTLEY. _ _ _

The arguments of Counsel having been concluded,
His Hosoca went over the whole of the facts, and
stated his opinion on most of the points raised during
the hearing of this cause, but reserved his final decision
for Monday next.
(Before Vice-Chancellor IVIGRA3I.)
TOMLIN V. TOMLIN.

His HONOUR gave judgment in this cause. The plain-
tiffs were two out of four residuary legatees under the
will of a lady of the name of Elizabeth Belcey. The
testatrix, by her will, appointed four persons her execu-
tors ; those executors disclaimed, and administration,
with the will annexed, was granted to Thomas Belcey
and Mary Belcey, the brother and sister of Elizabeth.
Thomas and Mary Belcey had since died, and adminis-
tration de bonis non of Elizabeth had been granted to
Robert Sackett Tomlin and James Tomlin, who then
represented the estate of Elizabeth. The object. of the
bill was to administer the estate of Elizabeth ;
and the plaintiffs had for that purpose brought before
the Court the personal representatives of Thomas and
Mary Belcey, treating them as persons who were ac-
countable for part of the estate of Elizabeth. In strict-
ness, therefore, the representatives of Thomas and Mary
Belcey were to be considered merely debtors to the estate
of Elizabeth, and upon that principle the case must even-
tually be decided. It had been argued, however, at the
bar, that the representatives of Thomas and Mary Belcey
were persons who had in their hands assets of the estate
of Elizabeth ; and evidence was tendered on the part of
the plaintiff, to show that those assets consisted in part
of a debt of 50,0001. An objection was taken to the ad-
missibility of the evidence upon that point, and
the cases of Law v. Hunter, Ward v. Woodward, and
Ifornby v. Hunter, were cited in support of that objec-
tion. Those cases appeared to him to decide, very clearly,
that the person beneficially interested in the estate of a
testator or intestate, might elect to consider a debt
owing from the executor of that estate, as assets in his
hand. It struck him, however, when the argument was
urged at the bar, and he still thought, that if the exe-
cutor himself said he had no such assets in his hands, he
might he treated like any other debtor, and the plaintiff
would be entitled to the usual decree. In the case of a
decree asked against the executor who administered an
estate, or of a single debt against the personal estate
alone, in every case where the Court might make a de-
cree for payment without taking an account of the assets
against the party, or only an account of the personal
estate, in respect of which the Court could decree pay-
ment without directing all the creditors to come before
the Court, the Court would in all such cases make a de-
cree against the party. But the question was, whether
that could at all affect the decree to be made in that case.
It altered the question to be tried, but it did not at all
alter the decree then to be made ; the only effect of
the alteration was, that instead of treating the debt of
fifty thousand pounds claimed against the estate
of 'Thomas and Mary Belcey, as being assets in
their bonds, the plaintiffs were to be treated as creditors
seeking payment out of the assets of Thomas and Mary
Belcey. In the present case the bill was filed to recover
a debt against the assets of a deceased party. In the
case of Owens v. Dickenson, in Craig and Phillips's
Reports, the question was, whether the plaintiff was at
once to be declared entitled to be paid an ascertained
sum of 2101. out of property it had passed under
a testamentary disposition, and the plaintiff having got a
locus standi in Court, the debt was sent by Lord Cot-
tenharn to the Master's office to be proved over again.
The bill in this cause proceeded against the real estates,
and asked a decree to bind the estate finally.
The established course of the Court was to
accept such proof as would give a title to a
decree, and then to direct it to be tried
again in the Master's office. It appeared that no injury
would be sustained by the plaintiff by pursuing the
ordinary course, whereas great injury might be done to
the defendant by departing from it. Upon these
grounds he would make the usual decree for the
plaintiff in this cause. Ile was anxious .not to
say anything with respect to the evidence :
it might prejudice the case of either of the
parties ; but he thought a strong case had been made
for proving a debt, ultra the debt sought by the plaintiff.
It was not denied that Mr. Belcey, though at one time
he admitted, had afterwards disputed, the debt. It was
quite true that the arrangement between Thomas and
Mary could not bind the parties beneficially inte-
rested, because Thomas was himself an account-
ing party. But Mary was one of the repre-
sentatives of Elizabeth, and her own interest being
deeply concerned, she admitted that Thomas had over-
stated the account. It was said that she was suffering
at the time from an attack of paralysis, but there was
no evidence to show that she was incompetent to the
management of her affairs. No attempt,had been made
to show whether Elizabeth had any property, which could
account for the enormous increase which had taken place
in the debt between the year 1818 and the year 1828.
The usual decree was then ordered to be entered for
the plaintiff, the Master being directed to state how much
was due upon the bond.