COURT OF APPEAL... that whosoever wilfully displaces, takes up or injures the pavement without the consent of the said local board shall be liable to a penalty. The Public Health Act was applied to the town of Dover by a provisional order of the 23rd May 1850, which was confirmed by Act of Parliament in 1851, and the corporation of the town was appointed the local board of health, and they were also made the commissioners for executing the Paving Acts. The gas company then filed the bill in the present suit, praying a declaration that the plaintiffs under and by virtue of their Act of Incorporation were entitled to sink and lay down pipes and to break up the soil, pitchings and pavements of the streets in the bill mentioned, the plaintiffs being willing, if the court should be of opinion that the defendants were entitled to require the same, that the pipes should be laid down and the soil and pavements broken up under the inspection and subject to the approbation of the defendants or their surveyor, as to the manner of laying down and breaking up the same respectively; and that the defendants, their workmen, &c. might be restrained by injunction from preventing or interfering with the plaintiffs in laying down the pipes, and in breaking up the soil and pavements, and performing the works authorised by their Act, subject to such power of inspecting and approving as before-mentioned. LAW TIMES REPORTS. COURT OF APPEAL. [AUG. 4, 1855. ROLLS COURT. convenience might lead? My opinion therefore is, that neither the limited construction contended for by the defendants, nor that which I have suggested, can be supported; and the case then comes to this, that a general power is given by the Legislature, and there is no sufficient context to control it. Under these circumstances the general power must, I think, prevail. A further point was raised on the part of the question before us, have been repealed under the provisions of the Public Health Act, and that the case the defendants, that the local Acts, as far as they affect is now governed by the 68th section of that Act; but upon examining the provisional order of the board by Parliament, I am satisfied that there is no founof health, which I understand to have been sanctioned dation for the argument. The result therefore is, that there must be a declaration that they are entitled to lay down the pipes in the streets, and an injunction to restrain the defendants from interfering with their doing so. Tuesday, July 24. (Before the LORDS JUSTICES.) STOKES v. TRUMPER. Solicitor and client-Error of Solicitor-Crassa negligentia In this case, before Wood, V.C., the claim of a in which the client was the relator, was disallowed solicitor against the estate of a deceased client for costs incurred in conducting a suit by information, on account of crassa negligentia. See the case reported ante p. 140. cision of the V.C.; but the case for the appeal having Barrister-at-law. Practice-Evidence-Breach of trust-Bankruptcy of the construction of the Act of Parliament by which this company was incorporated. By this Act the company are established for the purpose of lighting the town of Dover. The recital is that it would be of great advantage to the inhabitants thereof and the public at large if the streets, highways and other public passages and places were better lighted; but that is not the only purpose of the Act, for we find The plaintiffs recently proposed to erect a gas-be safely and beneficially used and applied for lighting further on, "and whereas the said inflammable air may holder or gasometer upon some land belonging to streets, highways, squares, market-places, and other them in the town of Dover, apart from their gas public places, and also for lighting manufactories, manufactory, as a reservoir for their gas, and to enable shops, wareliouses, and private houses;" and the them more conveniently to supply the town. effect this object it was necessary to lay down ad- Act for the purpose of contracting not merely with To company is incorporated by the first section of the ditional mains and pipes along some of the streets. the commissioners under the Act, or any other persous The company accordingly proceeded, after giving the in whom their duties may be reposed, for lighting the the corporation twenty-four hours' notice, to make town, but for contracting with any person or persons the trenches in the streets for this purpose; but they who might be willing to contract with them for the were interrupted by the agents of the corporation, lighting of any public buildings, manufactories, shops, who contended that the company was not entitled to warehouses, private houses, or other buildings whatdisturb the pavements without their consent. The soever within the town or port or adjacent thereto. new mains and pipes were intended to pass through By another section of the Act power is given to the streets in which pipes had been already laid with the committee of management of the company to contract consent of the paving commissioners, and to be placed with any person or persons with full power and alongside of the existing pipes; and the trench com- authority to make or enter into contracts or agreemenced by the plaintiffs was close and parallel to the ments not only for lighting the town or streets, but pipes already laid down in the same street. aforesaid. The Act therefore has two purposes: one, any such public or private houses or buildings as public advantage in lighting the town; the other, the convenience of the inhabitants of the town; and certainly an Act passed for this purpose ought not to receive a narrow or limited construction. We must look at the particular provisions upon which the question before us immediately depends, with a view not indeed words are open to doubt to give them a construction to strain the construction of the Act, but where the which may advance the objects of the Act. The question immediately depends on the 45th and 46th sections of the Act. By the 45th section of the Act it is enacted. [His Lordship stated the section as already given.] Now, no doubt, if the case had rested on that section of the Act, the company could not have laid down any pipes without the consent of the commissioners. Reported by GEORGE WHITELEY, Esq., of the Middle Temple, But then we come to the 46th section of the Act, which is thus: [this section is set out above.] Now, ROLLS COURT. single question, What is the meaning of the words that section, as it seems to me, involves only one contained in that section, "for any other purpose tended for the defendants, that this clause is to be which may be required under this Act?" It is confor any purpose would authorise the breaking up construed reddendo singula singulis, the consent given pavement for the same or like purpose; but if this had been the intention of the Legislature, surely the rights pressed in terms more extensive than the consent to flow from the consent would not have been exfrom which they are to flow; yet this is very plainly the case. any main or mains, pipe or pipes, the Act is not to If the consent has been given to lay down prevent the pavement from being broken up for the main or mains, pipe or pipes, but any pipe or pipes purpose not merely for laying down or repairing such Lord Justice KNIGHT BRUCE.-The main, if not those words, if consent was given to lay down a main whatsoever. It cannot, I think, be denied, that under the only question, in this cause is, whether, without the consent of the defendants, but under the condi- it would be competent to the company to lay down or pipe, or, as I should think. a main only, in a street, tions in all other respects prescribed by the Act of any number of pipes in the same street, and if the 1822, mentioned in the pleadings, the plaintiffs law-right flowing from the consent goes beyond the confully can, in the streets of the town of Dover, in which gaspipes have already been lawfully laid down by them under the provisions of the Act, and now are in use accordingly, lay down additional gaspipes parallel to and to be used with the others, for the same purpose of supplying gaslight in the town. am of opinion that, according to the true construction of the Act, particularly those sections of it which have been called the 45th, 46th and 17th, the question must be answered in the affirmative. It is one as to which I do not, on reflection, entertain any doubt; the language of the 46th section, according to its ordinary and proper meaning, being large enough to admit, and there being, I think, nothing in the context to prevent or to render unreasonable or inconvenient this interpretation. We were asked by the counsel on each side to decide, as far as we could, the point, upon which, though merely legal, we have certainly upon the pleadings, and according to the course of the court, jurisdiction to make a declaration, and to enforce the declaration by an injunction; and I have no objection to do so. Something was said in argument about the plaintiffs' gasometer, with which the new pipes are to be connected. The gasometer ought not. I conceive, to stand in their way. on land the private property of the plaintiffs, it has not hitherto become a nuisance, or caused a nuisance; nor does the evidence persuade me that it will certainly or even probably hereafter become a nuisance The plaintiff's moved before Wood, V.C. for an injunction in accordance with the prayer of their bill. The V.C. considered that the question upon the construction of the Acts of Parliament was proper to be decided by a court of law, and refused the motion. The motion came on by way of appeal before the Lords Justices on 12th June, when it was arranged that the cause should be brought to a speedy hearing, an answer being waived, and that the appeal motion and the cause should be heard together. The cause came on accordingly on the 10th July, when both parties agreeing to ask a decision from the court upon the construction of the Statutes, the court consented to determine the legal question. Rolt, Q.C. and Cairns for the plaintiffs. fendants. or cause a nuisance. the Set-off. A testator devised real estate to trustees for a term, upon trust to raise 20001., and as to 1000l., to incest the same, and pay the dividends to the testator's daughter for her separate use for life, and to divide the capital, after her decease, among her children at twenty-one. The trustees in 1817 released the land, and assigned the term to the person to whom it was devised, subject to this charge. An entry was found in the private memorandum book of this party (since deceased), made prior to the date of the release, stating that he had paid all interest on the 20001., and also the principal, to the daughter's husband. The only surviving child attained twenty-one in 1835. The wife died in 1829. He then instituted inquiries to ascertain under what circumstances the release was given. The suit toas not commenced till 1854: Held, that the entry was admissible, after the death of the Held, also, that though the plaintiff was put upon inquiry party, to prove payment of the 1000l. to the husband: in 1835, and must be taken to have knoon that the legacy was paid to his father, who was liable to repay the amount to the trustee, and therefore forbure to press the claim, it was not barred by luches or acquies cence: Held, also, that the bankruptcy of the trustee (deceased), sent in the one case, how is it to be limited in another case? The very next section of the Act, the 47th, private houses require pipes which have been tries this point. By that section, if owners of laid into their houses to be removed, the combut they cannot be removed without breaking up the Ipany are to remove them within a limited time, pavement. Then where is the right to break up the pavement for any such purpose, unless the words of may be required under this Act," be construed the previous section, "for any other purpose which generally, and not in the limited sense for which the defendants have contended. The 47th section has words, "or any other purpose which may be required suggested to my mind a possible doubt, whether the under this Act," might not mean for any other pur-term to trustees, upon trust to raise the sum of 2000Z, pose rendered obligatory on the company by the Act. and to pay 10007, to his daughter Catherine, as therein But this point was not suggested in argument, and I mentioned; and to invest the remaining 10002 and Henry Crockett, by his will, devised land for a do not think, on consideration, though I have felt pay the dividends to his said daughter for life for her language of the section is "may be required," not "is principal among all the children of his said daughters some doubt upon it, that it can be maintained. required." The word "required" must, I think, have respectively; and, subject to the said charge. The separate use, and after her decease to divide the same construction in the latter part of the section devised the estate to his son Robert. The testator as in the early part of it, and in the early part it has died in 1796. Built reference to a consent obtained. If the word Orrett, the father of the plaintiff. There was issue of Catherine married William Green "required" in this part of the section be construed the marriage two children-the plaintiff, who was born obtained to an Act rendered obligatory by the pro"rendered obligatory," we must impute to the Legis- in 1814, and a daughter, who died in 1846. In 1817 lature that it meant here to speak of a consent the trustees, by a deed to which Mr. and Mrs. Orrett tion, I think more appropriate language would have and that the remaining 1000l. had been paid to the visions of the statute. been used. I think, too, that this construction would trustees of the will of the testator, released the land If such had been the inten- paid to Mr. and Mrs. Orrett (as directed by the wild, were parties, and which recited that 1000% had been be against the spirit of the Act. There are, as I have charged with the said 20007. from the said sum, and observed, two objects of the Act-public and private signed a receipt for the same on the back of the deed, Legislature, encouraging the company to incur ex convenience; and why are we to suppose that the and assigned the term to Robert Crockett. Mrs. give them the largest range of profit, to which private ministration was granted to the plaintiff. The present pense for the public convenience, did not intend to Orrett died in 1829, William Green Orrett died in 1843. The daughter died in 1846 intestate, and Lord JUSTICE TURNER.-This case comes before us now in a wholly different position from that in which it stood before the V. C. The question before the V. C. was merely of an interim injunction, depending mainly on convenience and inconvenience of granting or withthe comparative holding the injunction. The question now before us is one of right, depending mainly, if not wholly, on the he ad ROLLS COURT. bill was filed in 1854 against the son and representative of the surviving trustee for payment of the legacy and interest. The defence of the defendant Was, first, that his father was made bankrupt in 1828, and duly obtained his certificate of conormity in 1829; but admitting that his estate was solvent, and that after paying all the creditors in full, there remained a large surplus; secondly, that the 1000%. was, in fact, paid by his father to the father of the plaintiff, prior to the date of the release; and amongst other evidence of this allegation, he produced the following entry from the private journal of Robert Crockett (since deceased): Jan, 17, 1836. Paid Mr. Orrett on my sister Cathe rine's and his own account, according to my father's will, all interest due on the 1000. I am indebted to them up to this day, and also the principal money. I have regularly procured the signatures of the parties requisite to complete the discharge of the Water Eaton estate from the above sum, for which, see the deed." There was no evidence of any interest having ever been paid to Mrs. Orrett in respect of the 10007 since the date of the release. The defendant insisted that the acquiescence and laches on the part of the plaintiff were a bar; and evidence was given on this point, which is referred to in the judgment. The defendant had filed a cross-bill alleging that the plaintiff had received his distributive share of the personal estate of his father, who died intestate, and claimed to have this sum so received, set off against the plaintill's claim, if any, to the legacy. The plaintiff demarred to that bill, in consequence of there being no personal representative of William Green Orrett made a party to the suit (no adınnistration, had in fact, ever been taken out), and the demurrer was allowed. Vide 25 L. T. Rep. 76. Palmer, Q.C. and W. W. Cooper, for the plaintiff, objected to the admissibility of of the entry from R. Crockett's journal as evidence of payment to the father. They contended that there was no laches or acquiescence on the part of the plaintiff to bar his claim. Rupell, Q.C., and Rendall, for the defendant. Short v. Lee, 2 Jac. & W. 407, was referred to on the point as to evidence: as to laches, Walker v. Symonds, 3 Swanst. 1: Adams v. Clifton, 1 Russ. 297; Bennett v. Colley, 2 Myl. & K. 225; March v. Russell, 3 Myl. & Cr. 31; Burrows v. Walls, 25 L. T. Rep. 18. The MASTER of the ROLLS.-In this case there was a clear trust, and no time of itself will bar the plaintim's claim, although every reasonable and fair presumption must be made in favour of the defendant arising out of the circumstances of the case. The first defence urged by the defendant against this claim is, that the trustee George Corser, whom the defendant represents, subsequently to the date of the deed acknowledging the receipt of the money, became bankrupt, and that he obtained his certificate of conformity. Now, I am of opinion that this is no answer to the claim of the plaintiff. The certificate would har the original debt due from the trustee, but the character of trustee is quite distinct from that of the debtor, and the functions and duties of the trustee are not affected by the bankruptcy. It was his duty to prove for the debt under the commission just as much as if he had been a perfect stranger to the commission, and he committed a breach of trust in not doing so; and the liability attaching to the trustee in that character is not affected by the certificate of conformity; and, in my opinion, if the defence to the claim rested on this question alone, the defendant, as representative of the trustee, would be liable to the extent, at least, of the dividends which would have been received; which the evidence shows amounted to 20s. in the pound. He would, therefore, in this view of the case, be liable to the whole amount of the legacy. But the defence arising from lapse of time, in connection with the facts, suggests, in my opinion, a case more difficult to be disposed of in favour of the plaintiff. The transaction relating to the release of the legacy occurred in the mouth of March 1817. The defendant, who is the son of the trustee whose estate is sought to be made liable, alleges, in substance, that he personally is ignorant of everything relating to this trust, but brings forward evidence for the purpose of showing his father, the trustee, considering that Mr. Orrett would perform the trust with regard to the legacy in the manner most beneficial to his wife and children, allowed him to receive the money, although the deed on the face of it states it to have been paid to the trustee, without which, in fact, the land would not have been discharged. This, if proved, is material in this respect, that though it would not enable the trustee to resist the claim of the plaintiff, it would give him a right against the father's estate, to be repaid the amount out of what was reeived by him. Now, the only direct evidence on this subject is the entry in a private journal, kept by Robert Crockett, the owner of the estate charged with the legacy, and which was released by the deed of 1817. The admissibility of this entry is objected to evidence for any purpose whatsoever, and, at all events, as evidence against the plaintiff: and on this point, whether it was admissible or not, I have reserved my judgment. Now, the principle which governs the admissibility of entries made by deceased as ROLLS COURT. persons in their own books, is thus stated by Sir Thomas Plumer in Short v. Lee: "The principle is, that the entry is made by an individual cognisant of the fact at a time when it was not in dispute, having no interest in making a false entry, and making one tending to charge himself." The usual case is the entry by a person of a sum of money paid to him. Such is the case of Higham v. Ridgway, 10 East, which is usually referred to as a leading case on this subject. That was the entry by a medical man, of the receipt of a charge made by him for having delivered a woman of a child on a particular day, and that entry was admitted as evidence of the age of the child. Now, this entry it is contended is of no value, because it is entry of the payment of a sum of money by a person who makes the entry, to discharge, not to charge himself, and therefore it is not admissible. I am, however, disposed to consider the evidence as admissible, on the ground that this is an entry which does not discharge Robert Crockett, but on the contrary is against his own interest. The payment of the 1000l. to Orrett was no discharge of the liability to pay that legacy of 10007., because it was paid to the wrong person. The way in which I look at the question is this. The admissibility of this evidence, cannot, I think, depend on the existence or nonexistence of the deed of March 1817, or whether his estate is or is not discharged from that legacy. If a suit had been instituted by Corser, the trustee, immediately after the execution of the deed, and notwithstanding it, to compel payment from Robert Crockett of the 10007 alleging and producing some evidence that Robert Crockett had not paid him the money, though he had promised to do so if the estate were released, but that he had paid it to another person, who was not an agent of the trustee; on such a claim, if Crockett simply alleged payment to the trustee, would not this entry in his own book have been admissible to show that the allegation respecting the payment was erroneous, and that the payment had been made to some one other than the trustee, leaving open the question whether the payment was made with or without his authority? I am of opinion that it would. If admissible in such a case, why is it not admissible here? After some hesitation and much consideration, I am of opinion that this entry is admissible between the parties to show that the 10007. was paid to Orrett and not to the trustee, who was the person to whom it ought to have been paid. If this evidence is to be relied on as conclusive, the question of authority of the trustee, after this lapse of time, could not, in my opinion, arise in the circumstances of this case; but before the court would act on this evidence, it is necessary to consider the surrounding circumstances, and to see that they corroborate or rebut this piece of testimony. Now, the result of the evidence given by plaintiff is this-that on coming of age in 1835 he was informed by his father of the legacy, who told him that he (the father) and the plaintiff's mother were obliged to release it and that it was necessary to enable his uncle to exchange the estate; but that his father said he would ask their family solicitor whether anything could be done, and that accordingly this gentleman, with the father of the plaintiff, inspected the deed of release; and that the plaintiff's father told him that the answer of the solicitor was, that nothing could be done, but that it was an iniquitous transaction, and that the plaintiff believing this to be correct, he made no further inquiries until his attention was called to the subject by a professional friend in 1852. The father, it appears, was in distressed circumstances, and had persuaded the son to join him in raising money on other property. Now, it is impossible that any solicitor, even but moderately acquainted with his business, should not have known that although the estate might be released, the statement in the deed of the payment of the legacy to the trustee made him liable to pay on account for the legacy. Why was no application made to the trustee for this purpose? The father and son were anxious to obtain money, and particularly payment of this legacy. They knew it was charged on the landed estate, and that it was payable to the son on attaining twenty-one. The solicitor, accompanied by the father, and employed to see what can be got, examines a deed by which it appears the estate was released, and the legacy paid to Mr. Corser, a banker, known to both of them, upon the trusts of the will, that is, for the plaintiff and his son. It does not require any legal knowledge or judgment to conclude that Mr. Corser would be bound to account for the legacy he had so received; and the question is, why did they not apply to him for payment? The only rational answer seems to be, in conformity with the fact alleged in the entry in Crockett's journal, that they did not do so because Corser would say, "If I am called upon to pay your son, you, the father, must repay me." The question, in connection with time, is very material as regards the plaintiff. He was informed of the legacy, but told that it was released. Now released by whom? By his father. Is it not natural that he should inquire whether the release was made without payment of the legacy? In this case again, it does not require a lawyer to know that one man cannot release a debt due to another, and that if the money was paid to the trustee who might release it on behalf of the cestois que trust, the trustee would be liable to the repayment of the money, V. c. WOOD'S COURT. and that if the trustee had released it, he could only have done so, if at all, on payment of the money. This appears to me so obvious, that I cannot doubt that the solicitor then employed was conversant of the whole matter, and I think it probable that the whole story was not told to the plaintiff, but sufficient was told him to show the impolicy of attempting to recover the money. After nineteen years it is very probable that he may have forgotten the greater part of what took place. I think I must treat him at that time as being put on full inquiry into all the circumstances of the case, which were in fact in part inquired into through a solicitor, who, if not employed by him, was the family solicitor, and who acted, in fact, for the purpose of ascertaining whether the legacy could be obtained for the son. That the advice which was given was, not to prosecute the legacy, appears to me to be clear, and on account of the consequences which would result to the father. All these facts appear to me to confirm and corroborate the entry made in the book of Robert Crockett, which I have admitted as evidence. It is upwards of nineteen years after this transaction that the bill is filed to establish the claim; the father, who survived eleven years, is dead; the solicitor employed is also dead; and the last person who could give any information on the subject, Robert Crockett, whose estate was charged with the legacy, who paid the money, and could have explained what he knew on the subject, and who could have given evidence not open to any doubt or question, died in the course of the year which preceded the filing of this bill. In this state of things, presuming everything I can most favourably for the defendant, I am of opinion that the defendant is bound to make good the legacy to the plaintiff, but that the defendant is entitled to make any assets of the father in the hands of the plaintiff, which are properly applicable to this purpose, available for the purpose of repaying the defendant what is due to him. Now, I had considered the form of a decree, on the assumption that the legal personal representative of the father was before the court (giving the plaintiff the option of accepting it or not), by which I should have impounded the fund, not allowing the plaintiff to receive it until it should be ascertained what assets he had received from the father's estate, and until he had repaid this dismiss the bill without costs. I am of opinion that amount to the trustee, or, if he declined to do that, to he is entitled to a decree for the legacy, but that this being evidence before the court that there are assets court will not allow that to be paid to him, there of the father in his hands, until defendant has had an father's estate in such a course of administration as to opportunity of instituting proceedings, or put the make available any assets that could properly be set off against the plaintiff's claim. I will allow both parties to consider in what manner this shall be worked out; but I beg it to be understood that I make this decree hostilely as against the plaintiff, and not in any view to obtain any consent, but that in the be dismissed without costs. event of the plaintiff declining this, then the bill is to The plaintiff submitting to this decree, the question arose whether the plaintiff was liable to make good the whole amount of the legacy out of the share of his father's estate received by him, or only two-thirds received; the widow (a second wife) taking the other of the amount, that being the share which he had one-third. Palmer and Cooper argued that this being a debt the proportion of the share of his estate which he had due from the father, the plaintiff was only liable in received. Roupell and Rendall contended that he was liable for the whole, as he was cognisant of the debt at the time of his father's death, and should not have allowed the widow to receive her share until this claim had been settled. There were no means of recovering anything from her. July 10.-The MASTER of the ROLLS expressed his opinion that the plaintiff was only liable for twointerest on the other one-third, prior to the date of thirds of the amount; but he refused to give any the death of the plaintiff's father. V. C. WOOD'S COURT. Reported by J. HENRY COOKE, Esq., Barrister-at-Law. July 13 and 17. ROBERTS . KERSLAKE. A bill was filed by the devisee under a bill against the heiress-at-law of the testator to establish the will; an issue derisarit vel non was directed to be tried. At the trial the heiress-at-law set up a case of unsoundness of mind in the testator, but the jury returned a verdict in favour of the will, and a new trial was refused: Ield, that, as the heiress-at-law had ample means of forming a judgment on the propriety of such a course, and had not during the testator's lifetime raised any question of his competency, but on the contrary spoke of being remembered in his will, and as in the suit she had raised a similar defence of incapacity, she was not entitled to any of her costs; and the decree was V. c. WOOD'S COURT. made establishing the will without costs on either side. The suit in this case was originally instituted by Mrs. Roberts, the widow of Mr. James Roberts, for the purpose of establishing his will made in her favour, and the defendant was Mrs. Kerslake, his sister. The defendant, by her answer, alleged that her brother was incompetent to make a will, by reason of mental incapacity. At the hearing of the cause the V. C. directed an issue devisavit vel non to be tried, and at the trial the same case was made by Mrs. Kerslake, and many witnesses were examined on each side. The jury returned a verdict in favour of the testator's competency to make a will, and a motion for a new trial was refused, and that refusal was, on appeal, affirmed. The question now remaining for decision was, whether the heiress-at-law was or was not entitled to any costs of the suit; or, further, whether, having raised such a defence and failed, she ought not to be directed to pay the costs of the suit and of the trial of the issue. his decision. V. C. KINDERSLEY'S COURT. ficate that the testator had laboured under structural disease of the brain for a period including the date of the will (by a day or two), it would be monstrous in the present state of medical science that the rights of property should be affected by any such speculative questions as to the effect of structural disease of the brain on the condition of a man to make a will, in the face of the positive evidence on the other side. The defendant has also raised this question by her answer. I cannot therefore think it right that the plaintiff should pay the defendant any portion of her costs. There must be a decree establishing the will, with no costs on either side. V. C. KINDERSLEY'S COURT. Reported by P. M. LEONARD and H. R. YOUNG, Esqrs., Barristers-at-Law. In re AN ACT OF PARLIAMENT OF THE 9 & 10 VICT. C. CCIV. In re THE GRAND JUNCTION RAILWAY COMPANY, and In re THE ESTATE OF EDWARD NEACHELL, deceased. Railway company-Payment out of court of purchasemoney to party absolutely entitled thereto-Lands Clauses Consolidation Act, s. 80-Costs. A railway company purchased lands and paid the purchase-money into court, and it was invested and carried to the account of the then landowner (a tenant for life) under the original Act incorporating the company. The Lands Clauses Consolidation Act was passed, and then another Act dissolving the original railway company, but amalgamating it anew with others, and embodying the Lands Clauses Consolidation Act in that amalgamation Act. A petition was presented in the matter of the amalgamation Act of the original railway, and of the estate of the vendor, by a party absolutely entitled to the fund, praying payment of it out of court, and also of the costs of the petition by the amalgamated company: Held, that the company were not bound to pay the costs of such petition. On behalf of the plaintiff, the devisee, it was contended that the rule was that where an heir-at-law raised such a defence and failed, the costs fell upon him, as was also the case where the defence was fraud and it failed: (the cases of Berney v. Eyre, 3 Atk. 387, and Grove v. Young, 5 De G. & Sm. 38.) For the heiress-at-law it was insisted that if she were brought before the court and had, as she had here, a good prima fucie case of mental incompetency, it would be an absolute mockery to mulet her in costs if she failed; that the only object of bringing an heir-at-law forward was to have every question raised, and to establish the will if such questions failed; that such a course would be equivalent to saying that the will should stand, and that the heir-at-law, if he impeached it, must do so at the peril of costs, although his rights were, if the testator were incompetent, paramount to the devise. Here there had been no vexatious or litigious conduct. and one medical witness deposed to the structural disease of the testator's brain, which lasted for a period anterior to the date of the will up to the time This was a petition presented by Edward Orme of death. The following cases were cited and com- Neachell, stating in effect that, by indentures of lease mented on by the counsel for the heiress-at-law-and release dated the 17th and 18th June 1793, cerWebb v. Glaverden, 2 Atk. 424; Crewe v. Jolliffe, tain land at Wednesfield, in the parish of WolverPrec. in Chan. 93; Blinkhorn v. Feast, 1 Dick. 13; hampton, was conveyed to the use of such person and White v. Wilson. 13 Ves. 92; and Waters v. Waters, persons and for such estate and estates and subject to 23 L. T. Rep. 242; S. C. W. L. Rep. 1853-4, 642. such conditions as Edward Neachell should by deed At the conclusion of the argument the V. C. executed in manner therein mentioned, or by his last reserved his judgment to enable him to read the whole will and testament in writing, or any codicil thereto of the evidence in the cause and on the trial of the by him signed, sealed, published and declared in the issue, some parts of which evidence are referred to in presence of and attested by three or more credible witnesses appoint. The said Edward Neachell, by his James and Bagshawe for the devisee, the plaintiff. will dated the 4th Oct. 1820, duly executed and Rolt and Cairns for the defendant, the heiress-at-attested as above directed, appointed the said land to law. his son Edward Neachell the younger for his life, and July 17.-The VICE-CHANCELLOR.-I have now after his decease to such person as might become the done that for the purpose of doing which I reserved wife of the said Edward Neachell the younger (if then judgment, namely, looked through the evidence. I have living) for her life, and after her decease to all and certainly been under the impression that, ever since every the children or child of the said Edward Berney v. Eyre, before Lord Hardwicke, the fixed rule Neachell the younger as tenants in common in tail; of the court has been that, while on the one hand the and for default of such issue to his (the said heir is entitled, as of course, to the trial of an issue testator's) son William Neachell in fee. The to test the validity of a will, he only standing by to testator died, leaving his son Edward Neachell see that it is properly proved, yet, on the other hand, the younger him surviving, who thereupon became if the heir set up insanity on the part of the tenant for life of the land at Wednesfield. In testator as a ground of defence, and fail, he is 1836, the Grand Junction Railway Company, in always subject to the consequences of such failure, pursuance of the powers contained in their Act by being deprived of his costs. I have been con(3 Will. 4, c. xxxiv.), purchased a portion of the land at vinced, however, that the rule is in truth one of dis- Wednesfield, and paid the purchase-money, amounting cretion with the court, and that where the heir can to 4851.. into court; and by an order dated the 1st show that he has set up such a defence on fair and July 1836, the same was invested in the purchase of reasonable grounds, the usual rule will not prevail. a sum of 5301. 15s. 7d. Three per Cent. Consolidated The fairest mode of testing the propriety and bona Bank Annuities, and placed to the credit of an account fides of the defence will be by regarding it as the entitled "Ex parte the Grand Junction Railway case of an infant, with an inquiry in chambers as to Company, the account of Edward Neachell;" and the propriety of setting up such a defence on his the dividends were directed to be paid to the said behalf, whether the court will have decided to incur Edward Neachell the younger for his life. The said the risk. Upon the result of the evidence it appears Edward Neachell the younger had married Ann his clear that, although the testator was a man of very wife, by whom he had one son, Edward Orme violent passions, and subject to delirious fits, his Neachell, the petitioner; and the said Edward illness has never once assumed the appearance of per- Neachell the younger died in 1840, leaving his widow manent mania, and it is beyond a doubt that he was and such only son him surviving. By an order dated competent to transact business on the day of making the 19th March 1842, the dividends on the said his will. If the heiress had lived at a distance from 5301. 158. 7d. were directed to be paid to the said Ann the testator, and had had no opportunity of personal Neachell for her life, or until further order. The said knowledge as to his habits and mode of life, there Ann Neachell, in 1843, married Horatio Powell; and might have been grounds for setting up this defence by an order dated the 14th Feb. 1845, the said diviand contesting it in the manner adopted. The heiress, dends were directed to be paid to the said Horatio however, lived in the same town, and was in Powell and Ann his wife during their joint lives, constant communication with her brother. There upon their joint receipt, or until further order. In had no concealment on the subject of making July 1846 an Act of Parliament was passed (the the will, but a communication to her that the 9 & 10 Vict. c. civ.), by which the 3 Will. 4, c. xxxiv. will ought to be made. In speaking upon the was repealed, and the Grand Junction Railway subject she made no representation that the testator Company (together with other companies therein menwas unfit to make a will, but merely suggested that tioned), di-s Ived as the Grand Junction Company, and he should remember her in it. If, upon an inquiry amalgamated with others, under the name of the London at chambers as already suggested, I had been told all and North-Western Railway Company By that these facts-that a medical man had attested the will Amalgamation Act it was provided that the repeal of which had been prepared by a solicitor of unimpeached the 3 Will. 4, c. xxxiv. should not affect any purchases character, and that they had had the medical assis- made under the said repealed Act, and that any contance of Dr. Jeffreson selected by the defendant her- tracts made previously to the passing of the Amalgaself to attend her brother-I could not have resisted mation Act, under the powers of the repealed Act, such a case unless there was strong counter evidence should be completed in pursuance of the repealed Act; produced to rebut it. Such counter evidence has not and the 11th section of the 9 & 10 Viet. c. eciv., inbeen produced. With reference to the medical certi-corporated with it the Lands Clauses Act 1815. The V. C. KINDERSLEY'S COURT. said Ann Powell died on the 19th Oct. 1854, having received all the dividends on the said sum of stock which had then accrued due under the beforementioned orders; and she left the petitioner Edward Orme Neachell her surviving. The petitioner having attained his majority, executed a disentailing deed, dated the 30th April 1855, whereby he became absolutely entitled to the said sum of 5301. 158. 7d. and to a sum of 147. 198. 10d. cash, representing the dividends which had accrued then due thereon; and the petition prayed the transfer out of court accordingly of the said sum of 530l. 15s. 7d. stock, and payment of the 147. 19s. 10d. to the petitioner, and that the London and North-Western Railway Company might pay the petitioner his costs of and consequent upon that application. The only question now to be discussed was, as to the costs of the petition. The petitioner claimed them as payable by the company under the 80th section of the Lands Clauses Consolidation Act; but the company refused to pay them, on the ground that the 80th section did not apply to the present case; the Lands Clauses Consolidation Act having been passed subsequently to the Grand Junction Act, under which the lands were purchased; and by which latter Act alone the question of costs ought in this case to be regulated. into H. R. Young (for J. Stuart) appeared for the petitioner.-The 3 Will. 4, c. xxxiv. was passed on the 6th May 1833, and by it the Grand Junction Railway Company was created, with the usual powers to purchase and hold lands for the purposes of that railway. In 1845 the Lands Clauses Consolidation Act was passed, by the 80th section of which provision was made for the payment of the costs of certain orders of court rendered necessary by the payment into court of purchase-money by railway companies; and amongst others, of orders," for the payment out of court of the principal of such moneys, or of the securities whereon the same should be invested, and of all proceedings relating thereto, except such as were occasioned by litigation between adverse claimants." On the 16th July 1846 the 9 & 10 Viet. c.ceiv. was passed, by the first section of which the 3 Will. 4, c. xxxiv. was, with other Acts therein mentioned, repealed, and by the 3rd section, the Grand Junction Railway Company was dissolved, and together with two others amalgamated one, to be called the London and North-Western Railway Company, with power to purchase and hold, and sell and dispose of lands, within the restrictions thereinafter, and in the Lands Clauses Consolidation Act, as extended to that Act, contained, for the purposes of that Act; and the Lands Clauses Consolidation Act was incorporated in that Amalgamation Act, by the 11th section of it. That section enacted as follows:-"That, subject to the provisions hereinbefore contained, the Lands Clauses Consolidation Act 1845 shall be incorporated with this Act." He then referred to Ex parte Eton College, 15 Jur. 45; S. C. 20 L. J. 1. The London and Birmingham Railway Company was incorporated by an Act passed in the 3rd Will. 4, c. xxxiv., and afterwards amalgamated, together with the Grand Junction Company, by the 9 & 10 Vict. c. cciv., under the like name of the London and North-Western Railway Company; and it appeared from the case of Ex parte Eton College that that last-named company had been held bound, under the provisions of the 80th section of the Lands Clauses Consolidation Act 1845, to pay the costs of an order for the interim investment of purchase-money paid into court under the original London and Birmingham Railway Company's Act. He relied upon that case, and the judgment of Lord Truro in it, as conclusive upon the present question. Speed appeared for the company.-This question had frequently been brought to the attention of the courts: (Ex parte Molyneux, 2 Coll. 273; S. C. 9 Jur. 786; and Ex parte Langton, 11 Jur. 686.) Those cases supported the view for which he contended, namely, that the 80th section of the Lands Clauses Consolidation Act did not apply to the present case. Neither did the case of Ex parte Eton College; for, in the first place, that was a petition praying the interim investment of dividends on a sum of stock : whereas, this was one for the payment out of court of a principal sum to a party absolutely entitled thereto. In Ex parte Eton College, the company had never hact their conveyance, and the contract was in an incorplete state; but here, the contract was completed-the company had long since had their conveyance. Besides, in that case, the money was standing to the account of the London and Birmingham Railway Company alone; whilst here, it was standing to the account of the Grand Junction Railway Company, "the account of Edward Neachell." It was, in fact, paid in under an Act of Parliament, and was now standing to the account of a company which did not exist; and Edward Neachell was deadl He then referred to the 9th section of the Amalgamation Act; as enacting that "in all cases in which any of the said dissolved companies previously to the passing of that Act, under the powers or provisions of any of the Acts thereby repealed, or any other Acts, had entered into any contract for the purchase of, or should have taken or used any land which, at the time of the passing of that Act, should not be effectually conveyed to such company, or the AUG. 11, 1855.] V. C. KINDERSLEY'S COURT. purchase-money in respect of which should not have been duly paid by such company, then and in every such case such contract should be completed, and such land should be conveyed to the company thereby incorporated, or as such company should direct; and such purchase-money should be paid and applied pursuant to the Act or Acts under which such contract should have been made, or such land should have been taken or used, and all the clauses, provisions, powers and authorities contained in such Act or Acts in relation to the completion of such contract, and the purchase and conveyance of such land, and the payment and application of the purchase-money in respect thereof, should for the purposes of that Act, remain in full force, and should be construed and taken as if the company thereby incorporated were named in such Act or Acts and contract respectively, instead of the company which should have entered into such contract, or taken or used such land." And also to the 10th, enacting, "that in all cases in which, under the provisions of any of the Acts thereby repealed, or any Acts repealed by such lastly-mentioned Acts, or any other Acts, any sum had already been paid by any of the said dissolved companies, or by any other company incorporated with such companies, or any of them, or the company thereby incorporated into the Bank of England, to any trustee or trustees on account of the purchase of any land or any interest therein, or for any compensation or satisfaction, or on any other account, such sum, or the stocks, funds or securities in or upon which the same had been or should be invested, either by order of the Court of Ex. or the Court of Ch., or otherwise howsoever, and the interests, dividends and annual produce thereof should be applied and disposed of pursuant to the Act or Acts under which the same had been or should be so paid into the Bank of England, or to such trustee or trustees as aforesaid; and all the clauses, provisions, powers and authorities contained in such Act or Acts in relation to such moneys, stocks, funds and securities, and the dividends and annual produce thereof, should, for the purposes of that Act, remain in full force, and should be construed and taken as if the company thereby incorporated were named in each such Act, instead of He also the company to which such Act related." referred to the 11th section of that Act, and argued that the Lands Clauses Consolidation Act being incorporated into the Amalgamation Act by that section, "subject to the provisions thereinbefore contained," applied only to all that part of the Amalgamation Act which followed, and not to that which preceded the 11th section; that the 9th and 10th sections of the Amalgamation Act clearly referred to matters commenced and prosecuted under the original Acts, and as to them kept the original and repealed Acts alive; that under those sections the present matter must clearly depend upon the provisions of the original Act creating the Grand Junction Railway; and that by that Act there was no power in the court to order the company to pay the costs of payment of money out of court in such a case as the present. Further, the Lands Clauses Consolidation Act applied only to subsequent special Acts, not to those which preceded it; and by the second section of that Act, a special Act was defined to be "an Act which shall be hereafter passed, which shall authorise the taking of lands;" and, as the Amalgamation Act contained no such authority, it was not a special Act within that definition of the word, and therefore the 80th section of the Lands Clauses Consolidation Act, could not be held to affect the London and North-Western Railway He referred to Doncaster's Company in this case. Settled Estates, Wood, V. C., March 13th 1855; a petition in which he (Mr. Speed) was engaged-one precisely similar to the present, and in which the V. C. had refused to make a railway company pay the costs; but he admitted that Ex parte Eton College was not cited in the argument on that case. LAW TIMES REPORTS. V. C. KINDERSLEY'S COURT. that the policy of the Legislature was, by enacting the The VICE-CHANCELLOR.-I confess that if it had not been for the difficulty thrown in my way by the decision of Lord Truro, in Ex parte Eton College, I should have felt no doubt whatever, that under the terms of the Acts of Parliament referred to, the company are not in this case bound to pay these costs. Indeed, if I had to determine this question now for the first time, and without any reference to the case of Ex parte Eton College, my decision would have been the same. Beyond all doubt, if the circumstances of that authority had been the same as those in the present instance, I should have felt myself bound to follow it; not merely because it was a decision of the Lord Chancellor's, but because it was pronounced with the view of setting the question then discussed at rest. The case of Doncaster's Settled Estates, before Wood, V. C. appears to have been on all-fours It seems clear, however, H. R. Young, in reply, contended that the fact of with the present; but Ex parte Eton College was Ex parte Eton College not having been cited before not cited then before him. Wood, V. C. in the case of Doncaster's Settled Estates, that the facts of that case of Ex parte Eton Colmaterially lessened the weight of that last-mentioned lege were not the same as are those in the one now before me. Not only was the contract in that case authority. It had been said that because in the case before Lord Truro the contract was incomplete, while not completed, for the company had never had their here it was completed, that differed the present from conveyance; but the vendors there, if they had not that case; but what really ought to be kept in view re-invested their money in other lands, would never was, the object with which these various enactments have been entitled to take the principal out of court; had been passed, and that would be found to be the and, moreover, the money there was standing to the -same, both as to the present case and that of Ex parte account of the railway, and not of the owner of the lands Eton College. That object was to secure the re-invest-purchased. Here, however, the contract is completed; ment of purchase-moneys paid into court by railway the company have long since had their conveyance, and companies, for land bought by them, in other lands to the money is standing to the account of the owner of the be settled to the same uses as those they had taken. That land at the time of the sale of it. I am bound to admit that many of Lord Truro's observations may fairly was the intention of the Legislature; and that was what Lord Truro meant to express, when he spoke of be applied to the present case; but notwithstanding the money being “in transitu;" clearly intimating, in that, I think the fact of there having here been accordance with the spirit of the decision at which he (with the single exception of the purchase-money not ultimately arrived, that all applications in respect of having been re-invested in other lands) a complethe money in court by the parties entitled to it, should, tion of the contract, and also the fact of the money until the re-investment of it in land, be made at the having in this case been carried over to the account alone, distinguish this cost of the company. Then it had been said also, that of the owner, and being no longer standing to that of the railway company Lord Truro. Whenfrom that before the Lands Clauses Consolidation Act applied only to there is money in court belonging to a part of the Amalgamation Act; and that the Amalgamation Act was not a special Act within the definition of it in the second section of the Lands Clauses party absolutely, and to be laid out in land, the Consolidation Act. But was that so? He contended matter falls under the general jurisdiction of the VOL. XXV.—No. 645. case ever V. C. KINDERSLEY'S COURT. court; which enables a party so entitled to present Wednesday, July 25. a This was a bill filed by a creditor who had obtained judgment in the Shoreditch Co. C. of Middlesex against the defendant Thomas Powell. The bill, after stating in detail how the debt arose, stated that Howell Powell, by his will, dated the 5th Dec. 1839, gave and bequeathed unto the defendants William strators and assigns, four leasehold houses in New Smith and James Nichols, their executors, adminiIvy-street, Hoxton Old-town; three houses in Edenplace, Hoxton Old-town; eight houses in Ebenezerbuildings, Ivy-lane, Hoxton; six houses in Lukestreet, Paul-street, in the parish of Shoreditch; two houses in Clerkenwell-close, in the parish of St. near the Crooked Billet, Hoxton, with their appurJames, Clerkenwell; and four houses then building, tenances, upon trust in the first place, out of the rents and profits of the same premises, from time to time and at all times to duly pay and satisfy the several rents and perform the covenants and agreements, reserved and contained by and in the several leases under which the said testator then or at his decease should hold the same; and upon further trust, out of the clear net rents and profits of the said eight houses in Ebenezer-buildings, if unto his son the defendant Thomas Powell, during his the same should be sufficient for such purposes, to pay natural life, one annuity or yearly sum of 351. to be paid quarterly on the usual quarter-days; and out of the clear net rents and profits of the said six houses in Luke-street, to pay unto his said son during his life another annuity or yearly sum of 107. to be paid quarterly as aforesaid; and as to the said two houses in Clerkenwell, after the decease of the testator's wife, out of the clear net rent and profits of the said two last-mentioned houses, to pay unto his said son during his natural life the further annual sum of 25%. to be paid quarterly as aforesaid; and the testator appointed his will. The testator died in the month of Feb. the defendants W. Smith and J. Nichols executors of 1840 without having altered his will, and the defendants Smith and Nichols proved the same, and have since that time received the rents and profits of the said houses. The testator's widow died several years since, and on the 17th June 1852 the plaintiff J. Bennett brought an action against the defendant Thomas Powell in the Shoreditch County Court of Middlesex, for the sum of 481. 14s. 2d., and proceeded to trial of such action, and obtained judgment thereon for the said sum, together with 77. 16s. 2d. for costs to be paid by instalments. Powell having failed to pay the first instalment, on or about the 6th July 1852, a warrant of execution was issued out of the said court to the high bailiff thereof, empowering him to levy on the goods and chattels of the defendant Powell the sum of 571. 138. 8d., being the amount of such debt and costs. The bill also contained an allegation that the defendant Thomas Powell had not any goods or chattels which could be taken in execution under the said warrant, but that he was in receipt of the several annuities under the trusts of his father's will; that the whole of the said debt was still due and owing, and that the plaintiff was without remedy in the premises unless by the assistance of a court of equity; and prayed that it might be declared that the said amount was a charge upon the said annuities, and that an account might be taken of what was due to the plaintiff, and that the same might be raised by sale or mortgage of the said annuities, and that in the meantime the defendants Smith and Nichols might be decreed to pay the said several annuities, or such part of them respectively as might accrue due to the plaintiff on account of the said sum of 57l. 138. 8d. and interest. Bovill and D. Bruce in support of the bill.-This were a judgment of court would aid a judgment-creditor to realise his security against the equitable interest of his debtor. If one of the Superior Courts, there would be no questhe judgment in this case (1 & 2 Vict. c, 110, s. 13); and a judgment of the tion about the plaintiff's right to the relief he prayed Co. C. put the party obtaining it in the same By the County Courts Act, 9 & 10 Vict. position. c. 95, s. 96, "every bailiff or officer executing any process of execution issuing out of the said Co. C. against V. C. KINDERSLEY'S COURT. the goods and chattels of any person, may, by virtue thereof, seize and take any of the goods and chattels of such person (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade to the value of five pounds, which shall, to that extent, be protected from such seizure), and also seize and take any money or bank-notes, whether of the Bank of England or of any other bank, and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to any such person against whom any such execution shall have issued as aforesaid." If these annuities had been legal interests not vested in trustees for the defendant, the high bailiff could have seized them; but, as the high bailiff could not seize them, the plaintiff asked the aid of this court to enforce his rights; and this case came within the doctrine of courts of equity as laid down by Mr. Justice Story in his work on Equity Jurisprudence, vol. 2, par. 1216; and also as laid down by Lord Redesdale's book on Pleading, 5 ed. 148. The following cases were also cited:-Veate v. Marlborough, 3 Myl. & Cr. 407; Angel v. Draper, 1 Vern. 399; York v. Twine, 3 Cr. 78. W. Morris, for the defendant Powell, contended that G. Simpson for the trustees. that an The VICE-CHANCELLOR.-There is no doubt as to the principles on which courts of equity act in aid of judgments; but the only question here was, whether those principles were applicable in the present case; and I am of opinion that they are. a court of law of competent jurisdiction has given a It is clear that if judgment for payment of a sum of money, which could be enforced by the creditor by writ of fieri facias, and that if there were chattels which could not by reason of their being equitable be recovered by that process, this court will make them available in the same manner as if they had been legal. In this case a judgment has been obtained in the Shoreditch Co. C., which court, by the 9 & 10 Vict. c. 95, s. 3, is a court of record, under which judgment the defendant is liable to pay a certain sum to tie plaintiff; execution has issued upon that judgment, and it has been enforced so far as could be by the high bailiff. The defendant is entitled to three annuities payable out of leasehold property vested in trustees. Had the defendant's interest in those annuities been a legal one, the amount might have been levied out of them. What reason is there then that this court will not apply the equitable doctrine in this case? The case of Berkeley v. Elderkin is very different from the present one; that case decided action in one of the Superior Courts could not be maintained upon a judgment of the Co. C.; and, if I may be permitted to use the expression, I entirely concur with that decision. The object of the action in the Superior Court was to obtain a judgment which could be executed in a manner different to that in which Co. C. judgments are carried into effect. This court leaves the judgment of the Co. C. just as it was, and merely makes the equitable interest of the debtor liable. It has been contended that, inasmuch as under the Statute of Frauds a judgment would not affect leaseholds until a fi. fa. was lodged in the hands of the sheriff, and as this writ could never be lodged with the sheriff, leaseholds were not bound by it. The Act of the 9 & 10 Vict. c. 95, 3. 96, directs that a warrant of execution shall issue to the high bailiff of the court, and it would be a very narrow construction to say, that because the officer of the court was called high bailiff, and not sheriff, those leasehold chattels could not be bound; but as the Co. Courts were not in existence at the time of the passing of the Statute of Frauds, that Act was not applicable to the present case. I am of opinion therefore that the plaintiff is entitled to the relief he asks; but as the rents appear sufficient, a sale or mortgage is unnecessary. I will therefore declare that the trustees shall pay the sum due out of the rents. HOUSE OF LORDS. House of Lords. Reported by JAMES PATERSON, Esq. of the Middle Temple Thursday, March 8. Held, the interest in the arbitrator was too remote to Where an arbitrator examines witnesses behind the back Session in Scotland, as to the validity of an award. sum. he "proceeded to hold a private meeting with a witness, and examined him on the matter out of the presence of the appellant, and even without his knowledge, and without affording the appellant any oppor tunity of either examining the said witness or hearing what evidence such witness gave," &e. substance, alleged that the said proceedings comThe said Peter Drew, the now respondent, as well as the arbitrator, answered these allegations, and, in plained of occurred with the knowledge of the appellant, who never objected to the same, but continued to attend before the arbitrator. the submission; whereupon Alexander Drew ap- tended that the circumstances alleged constituted a Peter Drew, were both sons of the late William ciples upon which an arbitrator is to proceed must be The appellant Alexander Drew, and respondent Drew, and had some disputes as to certain pro- the same both in this country and in Scotland. He The LORD CHANCELLOR.-My Lords, the prin perty which they claimed under the father's will. is bound to proceed fairly and honestly, and to conThey entered into a deed of submission, where- duct himself without bias or partiality towards either by they referred to the decision of Thomas Leburn, side; and undoubtedly he subjects himself to the as arbitrator, "all demands, claims, disputes, ques- gravest censure, and to legal proceedings, if he acts tions and differences subsisting between them on any otherwise. Upon the question, however, of putting account." arbitration proceeded through that year and up to the and the law of Scotland materially differ. As the The date of this deed was 1848, and the month of January 1850, when Alexander Drew, one law of England stood before the recent alterations, a stop to a pending arbitration, the law of England of the parties, the now appellant, applied to the court commencing, I think, with the statute moved by my to rescind the submission, on the ground of interest noble and learned friend, who held the Great Seal in and misconduct on the part of the arbitrator. The 1833 (Lord Brougham), followed by several subsegrounds alleged were thus stated by the appellant:quent statutes, amending and extending the proviThe said Thomas Leburn is one of, and solicitor to, sions then introduced, if parties submitted a matter the trustees of Mrs. Peat, whose husband five or six for arbitration to a private tribunal, to be decided by years ago lent the sum of 10,0001. belonging to Mrs. firm was dissolved, a negotiation of some length took That was an inconvenient, and, I think I may be alPeat, to the late firm of William Drew. a selected person, either of them might at any time, place between the said Peter Drew and the said lowed to say, an irrational state of the law. If parties When that without assigning any ground, revoke that submission. Thomas Leburn, as solicitor for the trustees, for the choose to select their own judge, they ought to be bound transference of the said loan to the said Peter Drew to submit to his decision, and not to let it proceed to a stock, It was ultimately agreed by and between the opinion, or any look of the arbitrator that he was individually, on the security of certain shares of bank certain point, and then, if they could extract from any said Peter Drew and Thomas Leburn on the part of hostile to them, revoke the submission. I say that the trustees, that the said Peter Drew should be accepted as the debtor to the trustees in the aforesaid rectified; and now the law may be represented as was an absurd state of the law, which has since been Peter Drew has been in insolvent circumstances, an arbitration pending its proceedings without first Since the date of the submission, the said being, that neither party to a submission can stop whereby the security of the said loan is endangered, obtaining the sanction of some court of Westminster and the said Thomas Leburn exposed to risk Hall, or one of the judges of a court for so doing. It his whole position in the transaction, he had the power of stopping it upon reference to a judge, or liabilities, in consequence whereof, and of was very reasonable that there should be still reserved and has a manifest and undue personal interest in because the proceeding before a judge or a court for supporting the credit and solvency of the said Peter that purpose would be a very short and summary Drew, and was ard is unfit and disqualified for ex- proceeding; and it might be that a party to the ercising the office of arbitrator, and observing that arbitration might say, "Things are in such a state, that strict impartiality which is requisite. In the pro- if it goes on the only result will be that more expense ceedings which have taken place in the submission will be incurred, and the award must inevitably be the said Thomas Leburn has shown by his conduct set aside. I will not take any further part in it; I that he in him an improper bias towards the claims of Peter done something which he has no right to do, and I actuated by the aforesaid interest creating have found out that the arbitrator is corrupt; he has Drew, and has in various instances acted corruptly will not waive the evil consequences resulting to mer and with undue partiality towards the said Alexander from the course he has pursued, and therefore when Drew. In particular with regard to a demand made the award is made it will be a nullity, and it may by Peter Drew against the firm for a large sum in be just as well stopped in timine." Upon that ground the occupied by them, although it was not denied that to an arbitration to apply in a summary manner to a name of rent for the premises belonging to him and Legislature has still reserved the power enabling a party no rent had ever been paid to the said Alexander court or a judge, in order that he may, with the assent paid into the partnership funds in common with the That in the courts in England is a very short and sumDrew for his premises, but that the same had been of that court or judge, put an end to the arbitration. rents of the other real estate, the said Thomas Leburn mary proceeding. The person applying states uponentertained the said claim and proceeded to hold cer- affidavit the ground upon which he says the award Drew, and Donald Ferguson, a servant of Peter If that statement upon affidavit be answered, then the tain private examinations of William Drew, Janet must be set aside, whatever is the result of the award. Drew, on the subject thereof; at this time William court does not interfere, but says, "Let it go on till Drew and Janet Drew were engaged in conjunction the award is made." If it is not answered by affiander Drew for the purpose of superseding him in the with Peter Drew in hostile proceedings against Alex-davit, then it is dealt with as a sort of admitted case, possession and management of his property, and no intimation was given to him of any such examinations being about to take place, nor was he present at any of them, nor aware of what passed, or that such proceedings were in contemplation, and no opportunity was offered him of hearing the statements of the said persons or putting any questions to them on the subject; but the said Thomas Leburn in respect of what passed at such private interviews, of which no record or evidence exists, corruptly, illegally, and contrary to the facts and evidence, found in favour of the said Peter Drew." With regard to another transaction the appellant alleged that the arbitrator, "instead of appointing the said Peter Drew to establish a certain claim made by him by legal evidence, proceeded to take what he, the said arbitrator, called the solemn declaration of Peter Drew on the subject, and thereupon and in respect of such declaration, being the mere assertion of Peter Drew, corruptly, illegally, and partially, found in favour of the said Peter Drew." With regard to another subject before the arbitrator, and the court interferes and suffers the litigant party different. When a party has submitted to arbitration by a proper deed of submission, he cannot revoke to stop the arbitration. Now the law of Scotland it: it must go on. corruption-in which you may stop a pending arbitration by a proceeding less summary than what is adopted here. The exact form of the proceeding it There is only one case that of is not necessary to inquire into. It is enough to say that if the grounds alleged by the appellant herewould not be sufficient to enable a court in this country to stop the arbitration from proceeding, much less would they enable the courts in Scotland to do so. Now, the grounds upon which Alexander Drew seeks been anything properly called corruption on the part to stop the proceedings here are not that there bas of Mr. Leburn-the whole of the evidence shows that there has not-but he has placed his case upon three grounds:-First, he says that Mr. Leburn has ar interest in sustaining the views of Peter Drew agains Alexander Drew, which were not fully understood by him when he consented to the submission. Secondly |