The Sun.
London, England, 1857-12-24 00:00:00

; tion, appropriating to themselves a quarter of the
money of their cestaisque trust. Sir B. Broun dis-
tinctly remonstrated upon the impropriety of t' is
appropriation, and upon the clause having been
smuggled into the agreement after it was signed by
him, were these directors in a position to deal fairly
on behalf of their cestaisqus trust, se that their con-
tract could bo enforced against those eestqc isque trust?
Were they after this proposed appropriation in a
condition to treat honestly for any material altera-
tion in the agreement ? Some further proceedings
took place with reference to the agreement, in the
course of which Mr. Sewell showed himself very
energetic and active on behalf of his client, Mr.
Sprye, his endeavours being directed to this,—that
Broun and Sprye should only transfer to the com-
pany that interest in the conti act for the purchase
of Lord Onslow's land which they actually possessed
The result was that the directors on behalf of the
company took upon themselves the expense of any
suit against Lord Onslow to compel him to trasfer
the land, which Broun and Sprye undertook to con-
vey, being, as they said, advised by counsel that
they could enforce specific performance from his
lordship. His Honour then referred to the agree-
ment of April 1, 1851, differing, as he observed,
most materially from all the other documents pre-
viously signed, in that it contained the appropria-
tion to the directors of 1-4th of the profits, and
omitted that which was most beneficial for the
cestaisque trust, the cause by which Broun and
Sprye bound themselves to perfect their contract'
with Lord Ouslow at their own expense and obtain
a transfer of the land to the company. It was im-i
possible to say that this variation, which went to'
the very root of the contract, this reservation of
interest to the trustees, coupled with the with-1
drawal of a distinct benefit from the cestuisque.
trust, would not vitiate the agreement of April 1,.
independently of the Act of 1852. The purchase
from Lord Onslow was subsequently effected, and
no doubt the company had derived great advans
tage from the goodwill at least existing in Broad
and Sprye and the steps taken by them in 1849
with a view to such a purchase. His Honour then
referred to the prospectus and the deed of settle
ment, and the proceedings taken with reference to
the Act of 1852.* Sir Richard Broun had about
this period indulged in most intemperate lan.
guage in his letters in respect of the company and
their proposed act of incorporation. This, how-
ever, was not surprising, as he seemed utterly
destitute of all sense of propriety, having thought
fit during the progress of this bill to address
letters to him (the Vice-Chancellor) of a most im-
proper character. While the Act was being carried
through Parliament the parties were clearly at
arms' length. Broun and Sprye having petitioned
against the bill, or, at all events, for a recognition
and protection of their interests ; and the assertion
of their right before the act incorporating the com-
pany passed was of considerable importance, look-
ing at the recent decisions in the House of Lords
as to contracts entered into on behalf of companieS
before incorporation. The company were forced—
and it must be taken that there was no concession
on either side—into the insertion of clause 31,
which provided, " that nothing iu the Act con-
tained should deprive any party or parties of any
legal or equitable rights, interests, or elaims to
which such party might be entitled by virtue of
any agreement or agreements entered into by any
person or persons for the time being acting as pro-
visional trustees for the company before the com-
plete registration thereof, and any such person so
acting as such provisional trustee should be held to
have acted on behiilf of the company by the act in-
corporated, as if the seal of the company had been
affixed to such agreement at the date thereof re-
spectively, provided that nothing in such agree-
ment shoald bind or enable thecompany to transfer
or convey away any portion of the land comprised
in the schedule to any party claiming under such
agreement, but that any claim with reference to
any such land should be treated as a question of
pecuaiary compensation or damages only." It
might be observed upon this clause that it did not
confirm the agreement of April, 1851, for if so it
would have been directly mentioned. The provi-
sional trustees wore thereby constituted agents of
the company for any purpose the company could
bind itself to ; and, further, the legitimate inference
arose that the act must b 3 taken to recognize the
agreement of April, 1851, and affect the company
with notice of it, subject to such defects and objec-
tions as were apparent upon its face. There wassome-
thing, however, behind this agreement of April of
which the company qua company was not aware. No
notice was given to them of the very important
agreement of the 18th of Dec., 1850, under which
they were entitled to so much greater benefits. The
agreement of December was the one really made,
and by that the directors should have stood. That
agreement, however, could not have been enforced
against the shareholders. The land was not, and
could not, under the circumstances, have been ob-
tained from Lord Onslow through the medium of
Broun and Sprye, nor from any estate existing in
them. No doubt the acquisition of the lanl was
£ruclaksal/40.11:55.- their pravioNa. rsegotiehtlorms,rltl. Lord
Onslow, but those did not amount to a contract. Ii
the company had got the benefit of the agreement
with Broun and Sprye, and thereby become pos-
sessed of the thing itself contracted for, " Bellamy
v. Sabine" would be applicable, and he should have
had no difficulty in establishing the lien of the plain-
tiffs as mortgagees. The land, however, had been
obtained from Lord Onslow independently, and as
the plaintift's had failed to establish any contract
binding upon the court, the bill must be dismissed.
He did so, however, very reluctantly, as he thought
that Broun and Sprye were entitled to a consider-
able recompense fur the real benefits which they had
conferred upon the company, by their activity aid
enterprise in. propounding the scheme, their choice
of site, S. c. They had great cause to complain of
the way in which they had been treated, and of this
attempt by the company to make out a conspiracy
between the provisional trustees and Broun and
Sprye, which had not been supported. For th-se
reasons the bill, though dismissed, would be dis-
missed without costs ; but he did not intend to
prejudice any action at law.
Mr. Cairns, Mr. Greene, and Mr. Dauncy ap-
peared for the plaintiffs ; the Attorney-General,
Mr. Willcock, and Mr. C. T. Simpson for the com-
pany ; Mr. Daniel, Mr. Osborne, Mr, Shapter,
Mr. Hardy, Mr. Fooks, and Mr. 13iron for other
parties.

WELLESLEY V. LOAD MORNINGTON.
The Vice-Chancellor also gave judgment in this
petition, which involved the following short ques-
tion ;—By the marriage settlement of the late Earl
ofMornington certain Irish estates were charged with
25,0001. by way of portion for the younger chil-
dren of the marriage. These Irish estates were
sold in the Encumbered Estates Court, and
25,0001. was set apart by the commissioners out of
the proceeds to answer the portions charged
thereon. This 25.0001. was invested, and the di-
vidends were received by the late earl, who died
on the Ist of July last. The question arose as to
the dividend accruinq upon the sth of July be-
tween the present Earl of Mornington and the
younger chiliren, upon petition for payment of
their portions.
The Vice-Chancellor, after referring to the En-
cumbered Estates Act (11th and 12th Vic., cap.
48), and the order of the commissioners in Ireland,
said that the 25,0001., when invested, was during
the lifetime of the tenant for life to be dealt with
as land. The Legislature did not intend to inter-
fere with the rights of persons entitled to the lend
beyond making a provision for the payment of en-
cumbrances. The late earl therefore was clearly
entitled during his life to the income of the
25,0001. as if it had been land, and the petitioners
would only receive the apportioned part of the di-
vidends accrued since the Ist of July last.
Mr. Cairns, Mr. Ruh, Mr. Druca, Mr. Milder,
Mr. Bagshawe, jun., and Mr. F. G. A. Williams
appeared upon the petition.

ASSIZE INTELLIGENCE.

WESTERN CIRCUIT.

TAUNTON, WEDNESDAY, Dec. 23.
Thomas Miller was indicted for the wilful murder
of Sarah Border, at, Bathford, on Oct. 10.
When called upon to plead the prisoner made no
answer, and a plea of not guilty was ordered by the
Court to be enterod.

Mr. Tiffin.- was counsel for the prosecution, and
Mr. T. W. Saunders defended the prisoner.
It appeared that the prisoner was a cowherd and
resided at Worley. On the evening of the 10th Oct.
two persons were heard going to the prisoner's cot-
tage, and &)on, afterwards a scream was heard, aLd
the deceased cried out ‘• Oh my dear husband !'' The
neighbours ran out and found the decnsed lying on
the ground by the prisoner's door. She had b7ea
stabbed. Her husband was also lying a short way
off. Ho had als:i been stabb-id. Both died in a short
time. Search was made for the prisoner, and he was
found in an adjoining garden lying on the ground
in a pool of blood. There was a cut in his throat
and in the abdomen.

Evidence was given to show that the prisoner
was often very wild and strange, and on that day
he had complained very much, and said he had had
a dreadful fight with the Indirins, and he wished
he was iu the hospital. He also said that Mrs.
Border had accused him of having something to do
with the murder of the woman in Leigh-wcods.
The prisoner's father had been in a lunatic asylum.
Mr. Justice Willes, in summing up, said there
could be no doubt the prisoner was guilty of this
murder, unless they should be satisfied that he was
in such a state from disease of the mind as not to
know he was doing a wrong act at the time he in-
flicted the blow. In late times defences of this de-
scription had been set uplen most frivolous grounds,