1844. The Attorney General v. The Leather-sellers Company.

Mr. John Baily, contra, contended that the party was not entitled to his discharge; that he had deviated from the direct road to the court, and was, in fact, proceeding to other places before coming to Westminster.

THE MASTER OF THE ROLLS:-The only question is, whether Mr. J. T. is entitled to his protection from arrest.

No doubt a solicitor, who is proceeding to court to attend to his professional business there pending, is privileged from arrest;

and the question always is, whether, at the time of the [*159] arrest, he was bona fide proceeding *in a direct line to or

from the court. Here, he states positively, that he was proceeding direct from his residence towards Westminster Hall, for the express purpose of attending the hearing of two petitions in the paper, and he is corroborated in this by another person, who states other collateral circumstances.

I think this would clearly be sufficient to entitle him to his privilege; but a doubt is thrown on the matter, by his not having given a distinct account to the officer of where he was proceeding it is, however, very possible that he might have been flurried at the time, and that he might have intended to go to the several places, first to the court, and afterwards to the others :this would not be quite inconsistent with what he stated.

With regard to his proceeding in a direct line, the officer says that he would not have proceeded in this direction, as the nearest and most direct way to Westminster; but he might be better acquainted with the way, and might have known a nearer road; and he has not stated that this was not the way by which persons ordinarily go from Wharton street to Westminster.

I think that, on the affidavits before me, this party is entitled to his discharge.(a)

(a) See Ex parte Ledwich, 8 Ves. 598; Gascoygne's Case, 14 Ves. 183; Castle's Case, 16 Ves. 412; Ex parte Byne, 1 Ves. & B. 317.

1844. The Marquis of Hertford v. Suisse.

THE MARQUIS OF HERTFORD V. SUISSE.

1844: February 8.

[*160]

A motion to dismiss being made, the Vice-Chancellor ordered it to stand over till the Lord Chancellor had decided on appeal a motion relating to the subject. After the Lord Chancellor's decision, the plaintiff, suppressing what had taken place before the Vice-Chancellor, obtained, at the Rolls, an order of course to amend. It was held irregular, and discharged with costs.

THE bill in this cause was filed on the 12th of July, 1842, against Suisse and other defendants. The answer of Suisse was filed on the 17th of November, 1842.

On the 8th of May, 1843, Suisse moved, before the Vice-Chancellor of England, to dismiss the bill for want of prosecution, but an appeal motion being then pending before the Lord Chancellor, which related to the matters of the cause, the Vice-Chancellor of England ordered the application to dismiss to stand over, until the Lord Chancellor had given judgment on the motion.

On the 18th of November, 1843, the Lord Chancellor gave judgment,(a) and on the 25th of January, 1844, the plaintiff, upon petition of course, obtained at the Rolls an order to amend his bill. The plaintiff, in his petition, made no mention of the pendency of the motion to dismiss, or of what had taken place before the Vice-Chancellor of England on that motion.

Mr. Roupell and Mr. De Gex now moved to discharge the order to amend. They argued, that it was irregular, first, on the merits; (which it is unnecessary to state, as the judgment was founded on the irregularity;) secondly, because it had been obtained while the motion to dismiss was pending, and by a suppression of those material circumstances which had occurred before the Vice-Chancellor.

Mr. Kindersley and Mr. Schomberg, contra, argued [*161] that the order was regular on the merits, that there was no suppression of any facts which were material; and that an

(u) 1 Phillips, 207.

1845.-Bowman v. Bell.

order to amend was regular, if obtained before judgment given on the motion to dismiss.

THE MASTER OF THE ROLLS was of opinion that the order was irregular, having been irregularly obtained, as of course, upon a suppression of material facts.(a) He said that he could. not determine the merits, as the cause was attached to the other branch of the court. He discharged the order with costs.(b)[1]

1845 February 10.

BOWMAN v. BELL.

On an issue devisavit vel non, the jury found in favor of the will, but before the cause had been heard on the equity reserved, the devisees in trust applied for a reference, to inquire whether a contract entered into by them was beneficial. Held, that the application was premature.

A TESTATOR devised his estate to trustees, who contracted to sell the property. This suit being afterwards instituted, the heir disputed the will. An issue devisavit vel non was directed, the accounts of the personal estate were ordered to be taken, and further directions were reserved.

The jury found in favor of the will. The trustees, before the case had been brought on upon the equity reserved, presented a petition for a reference to the master to ascertain if it would be beneficial to the parties to adopt the sale.

Mr. Kindersley, Mr. Purvis, and Mr. Shee, for different parties.

[*162] *THE MASTER OF THE ROLLS thought the applica

(a) See 6th Order of 9th May, 1839, Ordines Can. 137.

(b) See Robinson v. Milner, 5 Beav. 49; Hooper v. Paver, 6 Beav. 173; St. Victor v. Devereux, 6 Beav. 584.

[1] Plomer v. Macdonald, 8 Beav. 191.

1844. Clarke v. Manning.

tion premature, and that this petition could not be heard till the case had been disposed of on the equity reserved. He said that the issue having been directed merely to inform the conscience of the court, the validity of the will had not yet been finally established so as to enable the court at present to act upon it.

1844: February 24.

CLARKE V. MANNING.

This court has concurrent jurisdiction with courts of law in cases of fraud, but there are courses of conduct which this court construes as fraudulent, but which courts of law would not notice.

Upon an injunction to restrain an action at law, on the ground both of legal and equitable fraud, the court, admitting its jurisdiction to determine the legal fraud, permitted the action to proceed, in order to determine the question of legal fraud, and restrained execution only, with liberty to apply. The jury having found that there was no legal fraud, this court afterwards entered into the consideration of the question of equitable fraud, and finding none to exist, permitted execution to be taken out.

THIS was a motion for an injunction to restrain proceedings at law, and was founded on the merits confessed by the defendant's answer.

It appeared that in 1842 Roe & Blachford carried on business in the Isle of Wight, as bankers, and that they had in their hands moneys, to a considerable amount, belonging jointly to the defendant Manning and others, who were their customers. A joint stock bank being about to be formed, it was agreed that the business of Roe & Blachford should cease, that the banking company should be carried on upon the same premises, and that Roe & Blachford should become two of the managing directors of the banking company.

The company accordingly commenced business on the 12th of May, 1842. Manning, some time afterwards, opened

an account with the new banking company, and *Blach [*163] ford, acting for the company, fraudulently transferred

VOL. VII.

18

1844-Clarke v. Manning.

the balance of 19777., due to Manning from himself and Roe, from the account of the old firm to that of the new; and, on behalf of the bank, rendered them liable to Manning for the payment. The amount was entered in the "pass-book," but was omitted in the other books of the company. A correspondence which took place between Manuing and the company, acting by Blachford, was in like manner suppressed.

In December, 1842, Blachford and Roe became bankrupts, the frand became known, and the question was, who was to suffer by it. Manning commenced an action at law against the banking company for the recovery of the balance due, including the 1977. and the bank, submitting to the remainder of the claim, filed this bill to be relieved from the payment of the 19771., and charging Manning with fraud and collusion in the matter.

An answer was put in, denying all the charges of fraud particularly set out in the bill. A motion was now made for an injunction. The other facts of this case are stated in the judgment of the court.

Mr. Kindersley and Mr. Bagshawe, in support of the motion.

Mr. Turner and Mr. Allnutt, contra.

THE MASTER OF THE ROLLS:-The plaintiff in this case is the managing officer of the Isle of Wight Joint Stock Banking Company. The bill is filed by him for the purpose of [*164] restraining the defendants from *proceeding at law to recover a debt alleged to be due to them from the banking company.

The circumstances of this case are singular. In the month of May, 1842, two persons of the name of Roe and Blachford carried on the business of bankers at Newport in the Isle of Wight. At that time, the formation of the Isle of Wight Joint Stock Banking Company was in contemplation, and arrangements were made between Roe and Blachford and the persons forming the new company, by which the business of Roe and Blachford as bankers, was to cease, their business was to be wound up in a place in the neighborhood, and their former place of business