The Sun.
London, England, 1842-12-13 00:00:00

THE DEAN AND CHAPTER OT ELY V. ELM.
. _

Mr. BETHEL, in the absence of the Solicitor-Gene-
ral, opened this case, which involves a question of
great nicety and importance. It was a bill for tithes,
[ brought by a spiritual corporation aggregate, the
Dean and Chapter of Ely, against the defendant, who
put in a plea founded on the late Statute of Limitations,
commonly known as the 3d and 4th Wm. IV., and the
important question involved was, whether that statute
of limitations repealed the statute known as Lord
Tenterden's Act, which was passed the year antece-
dent to the former one. In the year 1833 great
changes took place in the law. In the April or May
of that year Lord Tenterden brought in a Bill, put-
ting the law of exemption with regard to tithes on a
better footing ; this Act was followed in the succeed-
ing year by the Act which altered the law of limita-
tions as far as related to real property, and what had
always been understood by the Bar, was, that the
latter statute did not supersede or render the .former
inoperative. The decision of the Master of the Rolls
ruled that the latter statute of limitations applied to
suits for tithes, and might be pleaded accordingly in
bar of such suits. The present case was an appeal
from that decision, with the view of trying the ques-
tion. The Learned Counsel then proceeded to read
the bill ; the claim against which the statute of limi-
tations was pleaded was made by the Dean and Chap-
ter of Ely for great and small tithes, under a grant
from Henry VIII.
The Lord Chancellor rose at two o'clock to attend
the prorogation of Parliament.

VICE-CHANCERY,(THIS DAY.)
(Before Sir JAMES WIGRA.M.)
FANNER V. COLLINS.

His HONOUR gave judgment in this case this morn-
ing. The plaintiffs alleged themselves to be the
trustees of a Wesleyan chapel in St. George's Fields,
and the object of the suit was to obtain payment of
the sum of 5821. 15s. 6d., alleged to have become,
and still to remain due, to the society of
which the plaintiffs alleged themselves to be trustees,
from one Collins, formerly a treasurer of the society,
in respect of monies held by him as such treasurer.
The precise mode in which the plaintiffs sought to
work out satisfaction of their claim, was by means
of a lien, or equitable charge, which they
sought to establish by their bill upon monies
of Collins in the hands of the defendant,
Collins, as the agent in this country of Collins who
was abroad. Collins had fot many years before the
institution of the suit, and still was, a resident in
Africa. He was made a defendant upon the record,
and process was prayed against him when he should
come within the jurisdiction of the Court; but he
had not appeared in this cause. The first document
relied upon by the plaintiffs was a writing signed by
Collins, and addressed by him to the defendant,
Collins, signed the 24th of February, 1820, imme-
diately after writing which he left the country, and
had not since been within the jurisdiction of the
Court. From that time down to the filing of the bill,
and subsequently, he had written letters from abroad to
Collins respecting the plaintiffs' claim, and Collins (the
defendant) had addressed letters to the plaintiffs which
were relied upon as evidencing and showing the lien
or charge which it was the object of the bill to estab-
lish. These letters came down to a period so late as
the month of December, 1840, after the institution of
the suit, and a supplemental bill had been filed to have
the benefit of one of such letters. The bill was filed
in the month of October, 1840, being more than 20
years after the debt claimed in the cause became due,
and an injunction was obtained, which had once been
continued to restrain alienation of the fund. The de-
fendant Collins claimed no interest in the fund in
question except as trustee for Collins, and he had re-
sisted the plaintiffs' claim on several grounds. First he
said that the letter of the 24th of February,
1820, did not form an effectual lien, or charge,
upon the monies now in the hands of Collins;
secondly, that the plaintiffs' title as trustees had not
been established; thirdly, that the admission in the
answer of Collins of the letter of the 24th of February,
1820, and of various other matters in the answer,
could not be received as evidence in the cause; fourthly,
he set up the statute of limitations ; fifthly, he said
that by a letter of Collins, of 1840, put in as evidence
by the plaintiffs, Collins disputed the amount claimed
by the plaintiff's, and that an account of what was
actually due could not be taken in the absence of
Collins, nor could he be bound by, any evidence in the
cause. His Honour, after going through these
grounds, said he had come to the conclusion
that he could not, upon the evidence before
him, grant the plaintiffs the relief which they
asked. If he were compelled then finally to dis-
pose of the cause, he could only dispose of it by dis-
missing the bill. He would be led to consider, however,
whether he ought in this case to grant the plaintiffs that
indulgence which a Court of Equity sometimes granted
to enable plaintiffs to perfect a suit. In considering
this he had had regard to the two considerations which
usually regulated the discretion of the Court; namely,
the merits of the case, and the risk of perjury by
which the amendment of a case after it had been
argued, was too often attended. Upon the question
of merits, his Honour referred to the letters in evi-
dence, and, amongst others, to a letter from Collins to
the defendant Collins, dated the 19th December,
1840, in which he said that the monies in
the hands of the latter were to be consi-
dered as a sacred deposit for the purpose
of paying the debt. It was the case then of
an agent, setting up on behalf of his principal and in
his absence--he did not mean improperly setting up,
but setting up defences on behalf of his principal,
which that principal in honour and conscience, felt
himself bound to repudiate. As far as the first Ties-
tion, that of merits was concerned, he thought the case
was as strong as any case which could be brought
before a Court of Justice. With regard to the second
point, he thought this was not a case which presented
any danger of perjury, for so far as the principal
claim was concerned there was evidence of it in writing
under the hands of the parties sought to be charged.
Upon the evidence before him he could not decide
at the hearing of the cause that the case was one in
which the plaintiffs might not, as against Collins, en—
title themselves to a decree. He thought he ought to
give the plaintiffs an opportunity of bringing Collins
before the Court. The remaining question, and the
only question which had seriously embarrassed him
at the hearing of the cause, was whether Collins had
not a right to have the case decided so far as he was
concerned; whether if a case had been made out against
Collins the bill should not be dismissed as against
Collins instead of his being kept before the Court as
a party to a cause, the end of which could not be
foreseen ; but when he adverted to the letters
written by Collins, to the defence which Collins had
set up, which was merely that he could not as trustee
or agent admit the plaintiff's claim in the absence of
Collins, he thought, as against him, particularly having
regard to his letter of the 19th of December, .1840,
he was not dealing unjustly by him when he said,
he thought the interest which he had in being dis-
missed from the suit was not such as ought to pre-
vent him from being retained before the Court. All,
therefore, he could do in this view of the case was to
direct the cause W.:stand over, with liberty, to the
plaintiffs to take such proceedings as they might be
advised, for the purpose of bringing the defendant
Collins before the Court. The injunction must be
continued, or a sum sufficient to cover the demand
brought into Court, the rest being left at the disposal
of Collins. The plaintiffs must pay the costs of the day.
At the close of his Honour's judgment an offer was
made on the part of the defendant of 8001. in full dis-
charge of the debt. After a short discussion the de-
cree was ultimately taken by consent, the defendant
agreeing to pay 700/. withinit costs. The bill was or-
dered to be dismissed.

INSOLVENT COURT-(TII 1S DAY)