The Sun.
London, England, 1842-11-25 00:00:00

VICE-CHANCELLORS' COURT, Nov. 24

(Before the VICE-CHANCELLOR of ENGLAND.)
The COURT was occupied to-day in taking unop—
posed petitions and short causes.

IN RE THE LONDON AND CROYDON, AND LONL"ON

AND GREENWICH RAILIVAYS.

This was a petition presented for the purpcse of ob-
taining payment out of Court-of two sums of money
invested in Stock, the residue of the purchase money
of property taken by the two Companies of a person
named Freen. This property was devised .by Mr.
ltd. Freen to his scn, with leave to dispose of it by
will only; both the London and Greenwich and Lon-
don and Croydon Railway Companies considered
this as equivalent to a life interest in the property, and
accordingly purchased it. By an order of the Court
the money WAS invested in another portion of real-
property, which was devised by John Freen on his
demise, to his five children, according to the terms of
his father's will. There was a residue of the purchase
money still remaining- invested in stock, and the object
of the present retition was to obtain the payment of
those two sums.—Order taken as prayed.
TIIE ATTORNEY-GENERAL V. WOODWARD.

This Wi.S originally an application having for its
object the consolidation of a number of small charities
in the city of Bristol for the support of indigent per-
sons. The Charity Commissioners had recommended
that one of these charities, which was possessed of an
almshouse, should have centered in it all the other
small ehariti:.>:.:, so as to convert them into one institu-
tion, instead of having them divided into small frag-
monts. 4.1. great inducement to take this course arose
from its being held out by several charitable persons
that they were ready to present this consolidated
charity with a suni of -800/1 The decrce of the Court
referred this application to the Master, who had in-
quired minutely into all the circumstances of the
different, charities, and reported'i-tf fa+NoUr of the ap-
plication.—Order granted`; Confirtning the Master's
report. ,

(BeforeVice-Chancellor Sir J. K. ThilicE.)
•
s. I3ARRY V. HILL. „ . -
His Hosroun gave judgment In this case this morn-
ing. In this suit fortithes;ly the rector of Brockley,
in Som metshire against an occupier c.f lands in that
po• arish, and the adjoining of Yatton, there were
sonic points not in dispubte, The plaintiff asked relief
only,,in respect, of the periOil between Lady-day in
1838, ,and the !31st of December 1841, the former
being the period .at.' which the 'composition subsisting
between tr*, parties.quded, having been determined by
a notice given by the plaintiff, and the latter being
the time from which- the statutary commutation of
tithes had taken effect the parish of Brockley. The
relief asked was algO.Testricted to the tithes of calves,
lambs, pigs, foals, and agistment in Brockley; the
tithes of such milk in tattori as was produced there;
of calves and heifers fed in
Were
with hay brought
from Brockley while they Were so fed ; and the tithes
of calves, lambs, and foals in Patton. As to Brockley,
the right to this account had not been contested; the
question raised was merely whether there should be
any and what directions as to the agistment of steers
and oxen. The main dispute as to Yatton rested upon
an alleged series of fraudulent removals of stock from
Brockley to Yatton for the purpose of depriving
the plaintiff of the tithes. Tie removals thus
alleged by the plaintiff and denied by the
defendant had been the subject of evidence on both
sides. That upon proving a fraudulent removal for
such a purpose, a tithe-owner would be entitled to
relief, was a proposition which could not be doubted ;
it was of ancient recognition in the Court. To prove
this it was not necessary to refer to any more remote
authority than the Ist of Roll's Abridgment, p. 42.
His 'Honour then referred to several cases in which
the judgment had turned upon the fraudulent re-
moval of titheable matters for the purpose of de-
frauding the tithe-owner. From all these authorities,
said his Honour, it was clear that as on the one hand
the mere fact of •the removal of cows or ewes very
shortly before the time of calving or lambing did not
entitle the owner to claim in respect of the calves or
lambs; so, on the other hand, he was entitled to relief
if the removal was effected fur the purpose of de-
priving him of the tithes. Ile thought the plaintiff's
evidence in this, can as to fraud was not wholly
unmet. Smith's evidence did not appear to him to
have that weight which the plaintiff's counsel
had given to it. He said that he had observed
the defendant's mode of using his farms in
Yatton and Brockley ever since 1838, and where
he had kept his stock during each year • and then
came a particular enunciation, which, if regularly
proved, would deserve great attention. He said that
it was from a memorandum which he had made, that
he was able to make the statement. The law of evi-
dence could not allow of a witness using notes in
memoranda, unless he had some further recollection
of the facts than as finding them written in a memo-
randum. The bill stated the defendant himself to
have admitted or acknowledged to his servants and
other persons the purpose imputed, but of this there
was no evidence, and the defendant, in his answer,
denied it; nor did the answers, taken by themselves,
or in connexion with the bill, offer in his judgment,
either evidence offraud, or grounds for suggesting fraud.
Prom the plans and statements of both parties, it ap-
peared that the Brockley and Yatton farms formed
substantially a single farm. Having regard to all the
circumstances, he could not say that the plaintiff had
established a case of fraud. in support of the de-
fendant's answer, several persons, whose respectability
saw no reason to doubt, had deposed that the re-
moval alleged to be fraudulent had been . carried on
before the period of 1838, when the composition
came to an end. He had considered, how-
ever, whether he ought not to put the case
in a train for further inquiry. Counsel had
contended that the plaintiff was entitled to an
immediate decree to the costs of the suit up to the
hearing, and the defendant's counsel having given his
consent, he was in a condition finally to dispose of the
costs up to that time. He had already said that the
plaintiff had not satisfied him as to the case of fraud
hro allegedgnaenndesqsdafu:ofeirtr;onsbtfimyi
caloinannt
tushghlloeydefte
rearli.eonal lsstb.
ants,
swill
er.
His juedlpo,
concede
alsntov
bdLu:oertslu
nn
tBttshll4tdiyeaon thenttr.oeoerfdelllaio. question of
ndhenraisectet.vinen°good
rtahlle consideringsprde3aaes7-
againstt heplai plaintiff
rr.e
Lox,qlt requested
ntlrle%ided defendant
sevidence
u ttlmg,ila.en de la.
whom he had commenced a suit to recover tithes.
Upon his stating that he was unable to give evidence
as to the quantity of potatoes produced by a particular
field, the plaintiff became exceedingly angry, and said
he would give him to Saturday to brush up his me-
mory. The plaintiff declining to give evidence,
several disputes occurred subsequently, and the
plaintiff, it was stated, acted hostilely and vexatiously
towards the defendant. His Honour said the mode of
collecting the tithes had riot been of a softening or
winning kind. On the other hand, the conduct of
tne defendant appeared, to be that which usually
resulted from such disputes. Neither appeared to
have acted in a judicious manner. He declared that
there would be no costs up to the present time. He
did not consider the case of fraud as proved against
the defendant ; his consent was not to 19e understood
as an admission of fraud. He thought the plaintiff,
by restricting the relief asked in the manner which
he had done by his counsel had exercised a wise dis-
cretion. His Honour then directed an account to be
taken by the Master.

COURT OF QUEEN'S BENCH, Nov. 24.
(Sittings in Banco.)

BOSANQUET V. GRATUM.-BOSANQUET V. BRIDGER.
The plaintiff in these cases was the. public officer
of the Westminster Banking Company. The de-
fendant,ehor D
YGn Graham, was sued as the public officer
of t Banking Company, and the
the s Southern
defendant Bridger was sued as one of the Share-
holders of the said Company, a scire facias having
been issued against him after judgment had been ob-
tained against Graham, in conformity with the pro-
visions (if the Statute regulating Joint Stock Banks.
Mr. TBESIGER had obtained a rule calling on the
plaintiff to show cause why the warrant of attorney
given by the defendant Graham, and the judgment
entered up thereupon, should not be set aside, and
why the scire facias issued on that judgment should
not he set aside.

The Some ITOFt-GENERAL appeared this morning to
show cause against the rule, and took a preliminary
objection to the title of the affidavits in the case, and
contended that it was contrary to practice to have one
rule in two cases.
Mr. THESIGER denied that the cases were really
separate cases, the scire facias against the defendant
Bridger, as a Shareholder, being merely a following
up of the judgment against the defendant. Graham, in
the manner prescribed by the Act of Parliament.
Lord DENMAN said the feeling of the Court was
against the validity of the objection, but it would re-
serve its judgment. In the meantime the arguments
in the case had better go on.
The SOLICITOIV•GENERAL said that the rule had
been obtained on several distinct grounds. He
understood that the objections to the warrant of
attorney and to the judgment were substantially
these :—lt appeared that the warrant of attorney had
been given by Uley Graham, as the public officer of
the Southern District Bank, for 30,0001., alleged to
be due to the London and Westminster Banking
Company, on the 4th of March, 1841; and the first
objection taken to it was, that the warrant of attorney
bad not been given by him as the public officer of the

Company. Now the warrant of attorney showed on
the face of it that it was given by him as the public
officer of the Company. The substantial question
raised was this. It appeared that, under the provisions
of the deed of settlement of the Southern District
Bank, there was a clause, " that if at any time the
losses should exceed the surplus fund, and one quar-
ter of the capital, any shareholder should be em-
powered to call a meeting of the shareholders, for
the purpose of dissolving the partnership;" and
the defendant contended 'that on the 24th
of April, 1840, a meeting had been convened,
in conformity with the provisions of the clause,
of which Mr. W. Dunn was chairman, and at which
the Company was dissolved. It was aldo contended
that Mr. Graham was not registered as the public
officer of the Bank at Somerset-house ; but it ap-
peared not only that likwas so registered, but that
the affidavit on which 14e had been registered was the
affidavit of the very. Mr. W. Dunn, the chairman of
the meeting, and that the affidavit of Mr. Dunn was
dated 25th April, 1840, the very day after he had
presided over a meeting at which it was alleged the
Company had been dissolved. There was also an ob-
jection that he had no authority as public officer to
give the warrant of attorney, but he should show that
he had the authority of the Directors for doing what
he had done, and that the Directors were authorised
by the deed of settlement to settle all actions ; and it was
for the purpose of settling an action brought by the
London and Westminster Bank that the warrant of
attorney had been given. There was an affidavit de-
nying the debt for which the warrant of attorney had
been given, and imputing collusion to the parties ; and
it was also imputed in the affidavits that certain of the
Directors of the Southern District Banking Company
were personally indebted to the London and Westmin-
ster
Banking Company, and that the warrant of at-
torney had been given to get rid of their personal re-
sponsibility. These were the substantial objections
to the judgment ; there was also a formal objection
that the judgment had not been entered up according
to the form of the warrant of attorney, but had been
entered up in vacation. The warrant of attorney had
been given on the 4th of March, and the judg,m ent
had been entered up on the day following as of Hilary
Term. The objections to the scire facias were, that
Mr. Graves and Mr. Young, who were partners in
the London and Westminster Bank, were also partners
in the Southern District Bank, and that objection
went to the whole of the proceedings. He understood
that it was contended by the other side that the plain-
tiff could not have a scire facias against each member
of a banking company, but that a plaintiff must elect
against how many he could proceed by scire facias, and
that having once made his election, he was precl tided from
suing any one else; that he must include all against
whom he intended to proceed in one scire facias, but
could not sue the parties separately. Another objection
was that no fiere facias had been issued against the as-
sets of the Company, and it was contended that no scire
facias could be issued against Bridger, without having
exhausted every other mode of obtaining payment of the
debt. Another objection was that the scire facia% had been
tested in vacation. A scire facias had been issued on
the 2d November, 1841, against several shareholders
in the bank ; in Hilary: term following, two rules
had been obtained, then several points had been raised,
and an issue had been directed to try if the parties
were partners in the Company, and if they were in-
debted to the London and Westminster Bank ; it was
tried at the assizes for Wiltshire, and a verdict re-
turned for the plaintiff. A rule nisi-for a new trial
had been granted, on the ground that two of the par-
ties, who were partners in the London and Westmin-
ster Bank, were also partners in the Southern District
Bank ; that rule had not yet been argued, and if it
should be decided for the plaintiff, then the parties
would be liable to the scire facias, and the judg-
ment already obtained; and Mr. Bridger, by now
coming to set aside the judgment, was seeking
to deprive the plaintiff of his right as against other
parties. If Mr. Bridger had any defence as to fact, he
could plead it to the scire facias, but he surely could
have no right to set aside a judgment against Graham.
The Southern District Bank had been formed for the
purpose of carrying on banking business in the Isle of
Wight and the Channel Islands, and the London and
Westminster Bank were their London correspondents,
and the London and Westminster Bank had given
them credit on the faith of the parties connected with
it ; that they never knew or had heard of the pre-
tended dissolution of the Company ; that they, having
been informed that the Southern District Banking
Company intended giving up business, pressed for the
payment of the debts ; that the Directors, Mr. Coates
and Mr. Meek, came up to London in consequence,
and had had several interviews with the parties con-
nected with the London and Westminster Bank, when
it was arranged, as the best mode of settling the affairs
with the least loss to the shareholders of the South-
ern District Bank, that the London and West-
minster Bank should not press for immediate
payment of the debt due to them, on condition that
the Directors of the Southern District Bank should
give a judgment fur the amount of the debt ascer-
tained to be due. Mr Graham, who was also a
Director of the Company, was the person who, as
public officer, had given the warrant of attorney, and
Mr. Griffith, the other Director, was perfectly aware
of what was going on, and was a consenting party.
When the first scire facias was sued out, so far was
Mr. Bridger from denying that he was a partner, so
far was he from saving that the Company was dis-
solved, that he actually paid a call of 61. made upon
him as part payment of the debt, to avoid having pro-
ceedings taken against him on that scire facias, and
on the understanding that his liability was still to
continue. Instead of raising the point that he had
paid the 6E., it was not until the Jury who had
tried the issue and found that the Southern District
Bank was indebted to the London and Westminster
Bank in the sum of 8,8861., that he raised these
objections. If the Company had been dissolved prior
to giving the warrant of attorney that would be
a perfectly good defence to the scire facias, but he
contended that the Company never had been dis-
solved. Nothing was mentioned as to dissolution in
the circular convening the meeting ; the persons who
made and seconded the resolutions for the dissolution
were not eligible to propose or second any such
motion, and the whole proceeding was a juggle. It
was stated that Mr. Bridger was present at the
meeting. If that were so, and he considered that the
Banking Company had been dissolved, it was strange
that he should subsequently have paid his portion of
the debt on two distinct occasions.
The Learned Gentleman was proceeding with his
argument, when
Lord DENMAN suggested that an issue might be di-
rected to try the fact in dispute.
Mr. TIIESIGER—AII we are desirous of doing is to
be enabled to plead, so as to raise the question in dis-
pute, which we cannot do by pleading to the scire
facias.
The Somerroa-Geeteetar.—Let the proceedings on
the scire facias stand over until their Lordships shall
have decided the questions at issue.
Lord DENMAN One question to be ' discussed
would be, that you were not aware of the dissolution.
The Somefroa-GENERAL—AII that the defendant,
has a right to ask, is to have the question tried, Was
he, or was he not, a member of the Company which
owed money to the plaintiff? I have no objection to
let him raise that question.
Mr. THESIGER—Bat we are desirous of being per-
mitted to raise the issue that the warrant of attorney
and the judgment thereon were obtained collusively.
We understand that there is another action pending
against Mr. Uley Graham-L-Will you let us in to
plead to that ?
The SOLICITOR-GENERAL—Certainly not.
Mr. TRESIGER—SureIy we ought to be at liberty
to question proceedings which we call collusive.
That judgment is now standing, and the attorneys for
the plaintiff are cueing out scire facias after scire
facias against the shareholders of the Company.
Lord DENMAN--YOU wish to add another issue, that
the proceedings are collusive and fraudulent ?
The SOLICITOR-GENERAL said the fact was, that
certain shareholders wished to avoid payment of the
debts, and the attorneys for the plaintiff thought that
the fairest way was to make each shareholder contri-
bute his quota towards the payment of the debt due
to the London and Westminster Banking Company,
instead of coming upon one party only.
Mr. THESIGER—Justice cannot be done unless we
have an opportunity of questioning the validity of the
judreent.
The SOLICITOR-GENERAL said the fact was, this
was an attempt of the defendants in the former action
to set aside the verdict of the Jury, and they made use
of the name of Mr. Bridger for that purpose. If Mr.
Bridger were not a partner, that would be a decay
good answer to the scire facias, and might be pleaded.
Mr. TuesiGert—But we say the scire facias is bad
in point of form.
Lord DENMAN—We had better hear the arguments
on that point.
The SOLICITOR-GENERAL said that the objection to
the validity of the scire facias was, that it was tested
in vacation, and therefore bad; but he contended that
as the defendant had taken a step in the cause without
noticing it, that was a waiver of the irregularity.
Mr. THESIGER contended that the scire facias was
not merely irregular, but was void, and that, even
admitting that it was merely an irregularity, that
might be cured; still the defendant had not taken any
step which could be considered as a waiver of the ir-
legularity.
Lord DENMAN—We will not at present decide
that point. We wish to hear you, Mr. Thesiger, on
the case generally .
Mr. TRESIGER said that the Southern District
Bank had:beenproposedto be established with a capital
of 200,0001. Of this capital
about
. 23,0001. had been
subscribed. The London and Westminster Bank had
been their town agents, and
had
5 0001. on the establishment ofd advanced them
the bank. The
Southern District Bank soon got into difficulties.
ll.} l'elatwent on struggling with those difficulties for.
. ri
...srtwo three years, when that occurrence took place

1
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