Tuesday, June 20. TRESS v. SAVAGE. Landlord and tenant-Lease for three years not under seal-Implied tenancy from year to year-Notice to quit—Statutes 7 & 8 Vict. c. 76, s. 4, and 8 & 9 Vict. c. 106, s. 4. A tenant occupied premises for three years under an agreement of demise for that term, which was void by statute 8 & 9 Vict. c. 106, s. 4, because not under seal. Upon the expiration of the three years, the landlord brought ejectment, without any notice to quit. Held, that the action was maintainable, because, though the statute rendered the instrument void as a lease, and the defendant was only tenant from year to year, that tenancy from year to year expired by agreement of the parties at the end of three years; and that in this respect the law was the same under statute 8 & 9 Vict. c. 106, s. 4, as it had been under the repealed statute, 7 & 8 Vict. c. 76, s. 4. This was an ejectment to recover possession of stables which the defendant had occupied as tenant to the plaintiff, under an agreement bearing date 17th Dec. 1850, whereby the plaintiff agreed to let, and defendant agreed to take the same, for the term of three years from the 25th Dec. instant. At the expiration of the said term of three years, the defendant refused to give up possession, no notice to quit having been given; and this ejectment was consequently brought. At the trial before Alderson, B., at Kingston, a verdict was found for the plaintiff, but leave was reserved to the defendant to move to enter a nonsuit; and, in the following term, a rule was obtained accordingly, upon the ground that the statute 8 & 9 Vict. c. 106, s. 4, rendered the instrument of demise wholly void, because it was not under seal, and that, if defendant held as tenant from year to year, he was entitled to the usual six months' notice to quit. June 19.—Lush showed cause.—Although the statute renders this instrument void as a lease, it still regulates the terms of the holding; so that, at the expiration of the term agreed upon, the tenant may be turned out without notice to quit. The stat. 8 & 9 Vict. c. 106 is differently worded from the former Act, 7 & 8 Vict. c. 76, which was found to be attended with inconvenient consequences, and was therefore wholly repealed. It made every void lease valid as an agreement for a lease, which parties might render effectual by going into equity for a specific performance; and the object of the second statute was to get rid of that, but not to alter the wellknown rule of law that a party occupying under a void lease holds upon the terms contained in the lease, so far as they are applicable to a tenancy from year to year: (Doe v. Stratton, 4 Bing. 446; Doe v. Bell, 5 T. R. 471.) [CROMPTON, J. referred to Doe v. Moffatt, 15 Q.B. 257; and Berrey v. Lindley, 3 M. & G. 498.] Doe v. Moffutt is precisely in point, although it was decided with reference to the repealed statute, 7 & 8 Vict. c. 76. The words in the latter statute mean only void as a lease-not that it shall cease to have any effect as evidence of the terms on which the possession is held: (Malins v. Freeman, 4 Bing. N. C. 395; the Lincoln College case, 3 Rep. 59 b.) Pearson, contrà.-The language of the last statute is different from that of the Statute of Frauds, as well as of the 7 & 8 Vict. c. 76. It expressly says that such an instrument as that under which the defendant held shall be "void at law ;" and no stronger language could have been used to express the intention of the Legislature that such an agreement, not under seal, should not in any way affect the relation of the parties. The effect of the statute will be neutralised by importing into an implied tenancy from year to year all the terms of the void lease; and unless that is done, the defendant was clearly entitled to notice to quit. Doe v. Moffatt does not apply, because it was decided upon the repealed statute. (He referred to Laythorp v. Bryant, 2 Bing. N. C. 747; Crosby v. Wadsworth, 6 East, 611; Burton v. Revell, 16 M. & W. 307.) Cur. adv. vult. COLERIDGE, J., now delivered the judgment of the court. In this case, which was argued yesterday, we took time to consider. It was an action of ejectment against the tenant of some stables by the landlord. The tenant entered under an agreement, dated Dec. 17, 1850, by which the plaintiff agreed to let and the defendant agreed to take them for three years from the 25th Dec. then following, and occupied the whole of that time at the rent reserved. At the expiration of the three years he refused to quit, and an action was brought without notice. The question was, whether a notice was necessary. This depends a good deal upon the words of the two statutes-the 7 & 8 Vict. c. 76, s. 4, repealed in the following year by the 8 & 9 Vict. c. 106, s. 4. Now, by the first of those statutes, it was enacted, "That no lease in writing whatever shall be valid as a lease or surrender, unless the same shall be made by deed; but any agreement in writing, to let or to surrender any such land, shall be valid and take effect as an agreement to execute a lease or surrender; and the person who shall be in the possession of the land in pursuance of any agreement to let may, from payment of rent or other circumstances, be construed to be a tenant from year to year." That was in 1844, and under that statute the case of Doe v. Moffatt was decided; and that case is to be found in 15 Q. B. 257. There an agreement had been executed on the 18th Sept. 1845, and it was to let the premises for the term of three years from the 29th Sept. 1845. In that respect it is exactly like this case; and then it went on to provide that, if at the end of the said term of three years the tenant should desire to renew his tenancy for three years more, he might do so on giving six months' notice before the expiration of the first-mentioned time, and then the tenancy was to be renewed for a further term. Now the same question arose in that as in this case; and there the court held, that the agreement did not make him a tenant from year to year indefinitely till notice was given, but for three years, liable to be turned out by notice to quit during any portion of the three years; but that at the end of the three years the tenancy expired by effluxion of time, and no notice to quit was necessary. That was the way the law was laid down there under the statute 7 & 8 Vict. c. 76. Now then, by the 8 & 9 Vict. c. 106, which repealed that statute by section 3, the law is laid down in this way: that a lease of any tenement, if such a lease as would be required by law to be in writing, with reference to the Statute of Frauds, should be void at law unless made by deed. Now it appears to us, looking to the two statutes, the intention of both is clear. The intention of the first was to prevent a lease being made except by deed; and that was the intention of the last. The first of these two statutes was found to effect very imperfectly the object for which it was enacted, and was made to embrace all leases, without reference to the question whether they were in law good or not without writing; and it throws no light at all on the intentions of the present provision, because in effect, as was said in the course of the argument, instead of giving or taking away from the party the enjoyment of the lease, it did but render it an agreement to execute a lease, and send him to the Court of Chancery for the purpose of effecting it. The second statute seems to us to have been intended to remedy this, as it says, in effect, You shall not make a lease except by deed; if you attempt so to do-if such a lease is attempted to be made, it shall be void in law. It puts an end to it therefore as a lease; but it leaves you, as to all other matters respecting the tenancy, exactly as you were before. Now here the tenant, according to that, seems to us to stand on the same footing as the tenant did in the case of Doe v. Moffatt; and the principle of that case, which was under the repealed statute, seems to apply to the case under the present statute. The tenant has not an interest for three years; he has no lease for three years; he may go during the course of the three years, upon giving notice, or he may be turned out during the three years, on notice given at the proper time; but, if he stays out to the end of the three years, then both parties are agreed that the tenancy shall expire by the effluxion of time, and no notice was necessary. I believe my brother Wightman entertains some doubt as to the decision we have come to; but my brothers Erle and Crompton are of opinion with myself, that on these grounds, the rule should be discharged. WIGHTMAN, J.-I entertained some doubt with respect to the operation of the Act of Parliament referred to (the 8 & 9 Vict.), the enactments of which are in some respects different from those in the previous Act. On a consideration of the case I have, after some hesitation, come to the same conclusion as my brothers in this case; and I think the rule should be discharged. Rule discharged. COURT OF EXCHEQUER. Monday, May 8. WATTS, administrator, v. REES. Personal representative-Plea of set-off. Quare: To an action by the personal representative of a deceased person, to recover a debt accrued due to him in his representative capacity, can a debt incurred by the deceased to the defendant be pleaded as a set-off to the plaintiff's demand? The declaration alleged that the plaintiff, as administrator of J. Watts, deceased, sued the defendant for money payable by defendant to plaintiff for money of the intestate, had and received by the defendant to the use of the plaintiff as such administrator; and for interest upon and for the forbearance of money due to the plaintiff, as such administrator, from the defendant, and by the plaintiff as such administrator forborne to the defendant, at his request; and for money found to be due from the defendant to the plaintiff as such administrator, upon an account stated between them. Plea.-"The plaintiff at the commencement of the suit was and still is indebted as such administrator, as in the declaration mentioned, to the defendant, in an amount equal to the plaintiff's claim, for money lent by the defendant to the said J. Watts in his lifetime; and for work done and materials provided by the defendant for the said J. Watts in his lifetime; and for money found to be due from the said J. Watts, in his lifetime, to the defendant, on an account stated between them, which amount the defendant is willing to set-off against the plaintiff's claim." Demurrer. Henniker, in support of the demurrer.—The plea is bad. The debt sued upon accrued to the plaintiff in his representative capacity as administrator of J. Watts; and it is not competent for the defendant to set off a debt incurred to him by the testator. The Statute of Set-off, 2 Geo. 2, c. 22, s. 13, enacts that, "Where there are mutual debts between the plaintiff and defendant, or if either party sue or be sued as executor or administrator, where there are mutual debts between the testator or intestate and either party, one debt may be set against another." In order to satisfy the statute there must not only be mutual debts, but mutual debts between the parties on the record: (2 Wms. Exors. 1596, 4th edit.; Glassman v. Thompson, Willes, 103; Tegetmeyer v. Lumley, Ib. 264; Hutchinson v. Sturges, Ib. 261, were cited.) Bovill, contrà.-The object of this statute was to prevent circuity of action (Foster v. Wilson, 12 M. & W. 191); and it does not deprive the defendant of any of the equities to which he is entitled by reason of the plaintiff's electing to sue in his representative capacity. Mardall v. Thelluson, 21 L. J. 410, Q.B., is an authority in favour of this plea, which is strengthened by the case of Blakesley v. Smallwood, 8 Q. B. 538; for the circumstance of the executor being plaintiff or defendant makes no difference in the principle. [MARTIN, B.-The case of Schofield v. Corbett, 6 N & M. 527, is expressly against you; so that there being a case for and against you, had you not better go to a court of error?] The passage in Wms. Exors. 1596, is founded upon the cases cited in support of this demurrer, which were none of them elaborately argued. [PARKE, B.—If you travel on of the words of the statute, you introduce a cours calculated to defeat the due administration of th assets of the deceased. If a defendant were allowe to set off a simple contract-debt of his own again an action by an executor in his representative cap city, he would be paid his entire debt at once, to t prejudice of creditors holding securities of a higher of the grounds of his claim, Since 6th May, one nature. man had during the day remained in possession, and two at night. James Summers the younger had no right to the goods seized. The interpleader summons was entitled in the original cause, and did not show at whose suit it was issued. Henniker, in reply, was stopped by the court. POLLOCK, C.B.-I agree with my brother Martin that this is a fit case to go to the court of error. It is true that the case of Mardall v. Thelluson is in favour of this plea, and that that case was decided subsequently Worsley now moved for a writ of certiorari to to the case of Schofield v. Corbett, and therefore over- remove the interpleader summons, or for a writ of rules it; but it does not appear that the last-named prohibition, directed to the judge of the Co. C. The case was cited on the argument of Mardall v. Thel-writ of certiorari is a common law right, that can luson, which makes that case of much less authority. I by no means intend to overrule that case; but I think, looking to the state of the authorities on this point, we are bound to act in accordance with the weight of those that have gone before us, leaving the defendant to his remedy by an appeal to the Court of Error. Therefore, without expressing a strong opinion one way or the other, I think the judgment of the court should be for the plaintiff. PARKE, B.—I confess that when I read the case of Mardall v. Thelluson it surprised me, for it appeared to me to be at variance both with the previous authorities and with the words of the statute. Nevertheless, if it depended on me, I should, in the present case, be disposed to act in accordance with it, as being the last decision on the point, leaving the plaintiff to bring his writ of error. PLATT, B.—As in this case we are obliged to adopt one case and reject another, I must say that in my opinion the case of Schofield v. Corbett is the one we ought to adopt. By the statute a set-off is given "where there are mutual debts between the plaintiff and defendant," viz. the parties to the suit; and it adds, "or if either party sue or be sued as executors or administrators when there are mutual debts between the testator or intestate and either party;" but the debts must be mutual as between them, otherwise the case is, in my opinion, not within the statute. MARTIN, B.-I am entirely of the same opinion. The weight of authority is, in my opinion, against this plea being a good plea; but, independently of that, we should, as my brother Parke has said, defeat the due distribution of assets if we adopted the principle of Mardall v. Thelluson. Lord Campbell, C.J. in his judgment in that case says these debts are "mutual debts ;" but I think they are not; and on that point the whole question depends. For these reasons I think judgment ought to be given for the plaintiff. Judgment for the plaintiff. Saturday, May 27. M'KELLAR v. J. SUMMERS THE YOUNGER. County Court-Interpleader summons-Amount of seizure-Jurisdiction of Superior Courts. Where on a plaint in the Co. C. between A. plaintiff, and B. defendant, execution has issued, under which the goods claimed by C, have been seized, and on notice being given by him, an interpleader summons has issued: the Superior Courts have no jurisdiction to interfere, although the value of the goods seized exceeds 50%. In this case a plaint was heard before the judge of the Co. C. of Kent, holden at Rochester, on 3rd May, between Peter M'Kellar, plaintiff, and J. Summers, jun. defendant, whereby plaintiff sought to recover 231.5s. 8d. and costs; and on the hearing it was ordered that the defendant should pay the amount claimed, and 51. 1s. 8d. costs. On the same day, a brickfield and market-garden, the property of James Summers the elder, was entered, and the goods and chattels therein were seized and taken possession of by the bailiff and officers of the said court to satisfy the said debt and costs, and subsequent expenses. J. Summers the elder then gave notice to the bailiff, that the premises entered and chattels taken were his property. An interpleader summons was then issued. The goods seized were of 400%. value, and consisted of 250,000 bricks in the various stages of manufacture, machinery and plant used in making bricks, horse, van, cart, wheelbarrows, planks, and other things. No inventory of the goods had been made. The interpleader summons required James Summers the elder, five days before the 7th June, to deliver to the officer a particular of the goods so claimed, and only be taken away be express enactment. [ALDERsos, B.-Yes; but here there is no record: this proceeding is a mere excrescence engrafted on the original plaint, and we can't interfere.] Then as to the prohibition, the power of the Co. C. to continue the execution ceases on the issuing of the interpleader summons, and on the service of it the bailiff ought to retire. [PLATT, B.-What, and leave the goods for any one to take?] Here there was an excess of jurisdiction: the value of the property taken, far exceeded 501. Exparte M'Fee, 23 L. J. 57, Ex.; Beswick v. Boffey, 23 L.J. 89, Ex. were referred to. POLLOCK, C.B.-We can't interfere: the Act gives the Superior Courts no jurisdiction; there is nothing here to prohibit. What the judge ought to have done is, what the Superior Courts always do in such cases, viz., require the claimant to bring the amount of the execution into court, to abide the decision of the interpleader summons. ALDERSON, B.-I dare say the judge will give us credit for adopting the best rules of practice; and that has always been the course in the Superior Courts. Rule refused. Wednesday, June 7. WILLIAMS T. THE GREAT WESTERN RAILWAY Railway Company-Liability for passenger's luggage. The Great Western Railway Company's Act (5 & 6 Will. e. evii. s. 169), enables every passenger to take with him his articles of clothing not exceeding 40lbs. weight, and four cubic feet in dimensions:free of charge. The company (empowered by sect. 144, to make by-laws for its regulation and good government), by a by-law provided that every first-class paasenger would be allowed 112lbs. weight of luggage, and every secondclass passenger 56lbs. of luggage free of charge, but that the company would not be responsible for the care of the same, unless booked and paid for accordingly. A first-class passenger, whilst travelling on the railway with a portmanteau containing his articles of clothing not exceeding 40lbs. in weight, nor four cubic feet in dimensions, lost the same. It had been neither booked nor paid for. Held, that the by-law mude was in contravention of the Act of Parliament and bad; and that the plaintiff was entitled to recover for the articles lost. Cowling appeared in support of a demurrer to the rejoinder.It appeared that the plaintiff obtained a ticket from the defendants to go by their railway from Paddington to Bristol as a first-class passenger, and paid his fare accordingly; he had with him a portmanteau containing his clothes, and besides that a dressing-case, with brushes, razors, and the ordinary appendages appertaining to it; the portmanteau and its contents were lost during the journey, whereupon the plaintiff brought the present action. The defendent's resisted it, on the ground that the plaintiff had not booked his luggage and paid for it according to the terms of their by-law made in that behalf. The plaintiff alleged that, by the Act of Parliament regulating the company, he was permitted to carry free of additional charge, being a passenger, 40lbs. weight of luggage, not exceeding four cubic feet in dimensions; that his did not exceed that; and that the company had no power to make any by-law contrary to the Act of Parliament. By the 5 & 6 Will. 4, c. cvii. (local and personal), entitled "An Act for making a railway from Bristol to join the London and Birmingham Railway near London, to be called "The Great Western Railway,' with branches therefrom to the towns of Bradford and Trowbridge, in the county of Wilts," the company are enabled, by the 167th section of that Act, to become carriers of luggage and other goods, as well as of passengers; and they have availed themselves of the power given to them by it. The 169th section enacts, "That without extra charge it shall be lawful for every passenger travelling upon or along the said railway to take with him his articles of clothing, not exceeding 40lbs. in weight and four cubic feet in dimensions; and the said company shall in no case be in any way liable or responsible for the safe carriage or custody of, or for any loss of or injury to, any articles, matters, or things whatsoever, carried upon or along the said railway with or accompanying the person of or belonging to any passenger, or delivered for the purpose of being carried, other than and except such passenger's articles of clothing not exceeding the weight and dimensions aforesaid: provided always that nothing herein contained shall in any case extend, or be deemed or construed to extend, to charge or make liable the said company further or in any other case than where, according to the laws of this realm for the time being, stage-coach proprietors and common carriers would be liable; nor shall anything herein contained extend, or be deemed or construed to extend, in any degree to deprive the said company of any protection or privilege which, either now or at any time hereafter, common carriers or stage-coach proprietors have or may have; but the said company shall from time to time, and at all times, have and be entitled to the benefit of every such protection and privilege.” So that a passenger may take 40lbs. weight of luggage if it do not exceed four cubic feet in dimensions, and the articles consist of articles of clothing, without any extra charge. If there should be anything additional, then the company are not to be liable for the excess, without a special contract come to for that purpose. Here the plaintiff's luggage is alleged to be less than 40lbs. weight, and less than four cubie feet in dimensions, consisting of articles of clothing-that is, so many coats, so many waistcoats, &c. The plaintiff has entered a nolle prosequi as to the dressing-case and its contents, to make quite sure of his success. [ALDERSON, B.-The pleader was over cautious. "Articles of clothing" in the Act of Parliament means such articles as a man generally requires and takes with him, and are ordinarily used by him in travelling, and not limited strictly to the coat and trousers, &c.] The 144th section empowers the company to make by-laws, and enacts "that the said company, at some general or special general meeting of the said company, shall have full power and authority from time to time to make such by-laws, orders, and rules, as to them shall seem expedient for the good government of the affairs of the said company, and for regulating the proceedings and remunerating and reimbursing the expenses of the said directors, and for the management of the said undertaking, and of the officers and servants of the said company, in all respects whatsoever; and from time to time to alter or repeal such by-laws, orders, and rules, or any of them, and to make others, and to impose and inflict such reasonable fines and forfeitures upon all persons offending against the same, as to the said company shall seem meet, not exceeding the sum of 51. for any one offence, such fines and forfeitures to be levied and recovered as any penalty may by this Act be levied and recovered; which said by-laws, orders, and rules, being reduced into writing under the common seal of the said company, shall be printed and published; and such by-laws, orders, and rules, except such as shall relate solely to the proprietors or directors of the said company, or to any of their officers or servants, shall be painted on boards, and hung up and affixed and continued on the front or other conspicuous part of the several toll-houses to be erected on the said railway, and other buildings or places at which any rates or tolls shall be collected or paid under the authority of this Act, and which boards shall from time to time be renewed as often as the same, or any part thereof, shall be obliterated or destroyed; and such by-laws, orders, and rules shall be binding upon and be observed by all parties, and shall be sufficient in all courts of law or equity to justify all persons who shall act under the same: provided that such by-laws, orders, or rules be not re pugnant to the laws of that part of the United Kingdom of Great Britain and Ireland called England, or to any directions in this Act contained; and all such by-laws, orders, and rules shall be subject to appeal in manner hereinafter mentioned." One of the bylaws of the company, as relied upon by the defendants, was as follows:-"3. Every first-class passenger will be allowed 112lbs. and every second-class passenger 561bs. of luggage free of charge; but the company will not be responsible for the care of the same, unless booked and paid for accordingly. All surplus of luggage and merchandise of every description will be charged for. The company's porters will load and unload the luggage at the different stations, free of charge." (Allowed by Patteson, J. July 14, 1840.) What, then, is the effect of that by-law? It must be read, to be made consistent, with the clauses of the Act, supposing it to be a valid by-law so that it can be supported. It must mean that a first-class passenger may carry 112lbs. weight of luggage free of charge; but, if the passenger wishes the company to be responsible for it, if over 40lbs. weight or four cubic feet in dimensions, he must book it and pay for it accordingly. It is general in its terms, and may include other articles than clothing. The by-law, construed in any other way, would be bad. [POLLOCK, C.B.-They have no power to make such a bylaw; they may just as well make a by-law that they will not pay their bills.] (He was then stopped by the Court.) The defendant was sued in the Co. C. as administrator racter: hibition; but we have taken time to consider, and we are of opinion that there ought not to be any rule. In truth, it is a complaint to this court of an erroneous decision, if it be one, as to which it is not at all neces sary that we should pronounce any opinion. Here the question was one properly before the judge of the Co. C. It may be that he ought to have decided differently; but a wrong decision is no ground for a prohibition. If a judge of a Co. C.—there being a matter brought before him, without a particle of evidence one way or the other-were to find a verdict Held, that, although this might be a wrong decision, against the defendant, it would be very wrong; but it was no ground for a prohibition. In this case Woollett moved for a prohibition, directed to the judge of the Co. C. of Colchester, to prevent him proceeding further with this plaint. It appeared that a plaint had been issued on behalf of the guardians of the poor for the Lexden and Munster Union, against the defendant, Thomas Southgate, as administrator of John Ingate Southgate, and as executor of Jane Southgate, his widow, for the sum of 177. 18., paid for the support of certain children of the deceased persons. At the trial the defendant tendered proof that he was not the executor of the widow, and called upon the judge to make the plaintiffs elect in which character they would sue him; but this the judge declined to do, and a verdict was given against the defendant generally, in his alleged double capacity of administrator and executor, without any distinction as to the amount due from him in each character. Willes, for the defendants, was then called upon by And he now swore in his affidavit that, although the court to support the rejoinder.-The court is now he was administrator of J. I. Southgate, yet he was dealing with a peculiar contract-one between a car- not the executor of his widow, nor had he ever interrier and a customer. There are two modes by which meddled with her goods as executor de son tort. It a carrier may be relieved from responsibility, as was now contended that the judge had clearly acted pointed out in Baxendale v. Hart, in the court of without jurisdiction. In consequence of the verdict error. [MARTIN, B.-Surely the Act of Parliament being general, and the damages not severed, it was imgives you no power to make such a by-law as this.] possible for the defendant to know as to what part he The question here will be upon the reasonableness of the was liable as such administrator, for in fact he had by-law; and, upon looking at the whole Act, it will never been brought into court as executor. [ALDERbe found to be reasonable. Under the 144th and SON, B. However clear it may be that the judge has 169th sects. the company are to carry certain goods come to a wrong decision, we can only prohibit a in weight, &c.; they don't refuse to carry, but, in person for acting without jurisdiction.] The judge effect, say this:-If you impose upon us the responsi- was here trying two actions in one; and that was an bility of it, you must book it and pay for it. excess of jurisdiction sufficient to enable this court [PLATT, B.-It is, in fact, repealing the section to interfere by prohibition. There is a second of the Act of Parliament.] The 189th and 220th ground for the rule. At the trial of the plaint it sections are also material to be considered; the 189th was objected that there was no evidence that section enables the company to regulate the passage the attorney acting for the guardians of the on the railway. [PLATT, B.—That is for regulating poor of the Lexden and Munster Union had been the travelling, the times of departure and arrival of authorised to bring the action; and they, being a the trains, the speed, the prohibiting smoking and corporate body, could only appoint by a resolution other nuisances in the carriages, and so on.] The passed at their meeting, and which ought to be 220th section enacts that the authenticated by-laws proved. [ALDERSON, B.-If the attorney was apshall be evidence. [ALDERSON, B.-The 169th sec-pointed, he may have been improperly appointed; tion gives power to a passenger to have taken by the company articles of clothing, of certain weight and dimension free of charge; and your by-law takes that away surely.] Suppose the company should think proper to make a rule that a specific form of direction, such as "from Paddington to Bristol," for instance, or the place of the passenger's starting to the place of his destination, be put on his luggage, and an obstinate traveller refuses, and insists upon going on; the luggage is stopped. [POLLOCK, C.B.The company may say in such a case, we won't take your luggage unless our rules are complied with; there may be nothing improper in such a regulation as that perhaps.] If then they may make such a by-law as that, why may they not say also, You shall have your luggage booked? This luggage was neither booked nor paid for. [ALDERSON, B.-The by-law is clearly bad, as it is in direct opposition to the section of the Act.] [POLLOCK, C.B.-It is clearly a bad by-law, and in contravention of the 169th section of the Act of Parliament.] PLATT and MARTIN, BB. concurred. but we cannot therefore prohibit the judge from POLLOCK, C.B.-This may be a very wrong deci- ALDERSON, B.-In consequence of the smallness of the sum for which the plaint is brought, and the expense of a rule, we ought not to grant you one, unless we are sure it ought to be made absolute. JUDGMENT. Cur. adv. vult. POLLOCK, C.B.—In this case there was a motion for a prohibition, and we took time to consider whether Judgment for the plaintiff. there ought to be a rule. It appears that, before the judge of the Co. C. of Colchester, there was a June 8 and 15. plaint against the defendant in a double character. Ex parte THOMAS SOUTHGATE, re THE GUARDIANS The cause was heard, and the judge pronounced a OF THE POOR OF THE LEXDEN AND MUNSTER judgment against the defendant generally; and it was UNION V. THOMAS SOUTHGATE. contended that that was wrong-not merely wrong, County Court-Jurisdiction-Defendant sued in two but that he had no jurisdiction or authority to do so. different capacities-Prohibition. We were pressed very much to grant a rule for a pro it is no ground for a prohibition. There are certain BAIL COURT. Thursday, June 15. COOCH v. MALTBY. Costs-Higher or lower scale-Plea of tender. In an action for a sum exceeding 201. the defendant pleaded (inter alia) a tender of 231. 58. 8d., and payment into court of the sum tendered. The case was referred to arbitration, the arbitrator to have the same powers as a judge at Nisi Prius. The arbitrator found for the defendant upon the plea of tender, and for the plaintiff on the other pleas, and directed a verdict to be entered for him for the sum of 21. 10s. 5d. beyond the amount paid into court. At the taxation of the plaintiff's costs it was contended for the defendant that they should be taxed on the lower scale, pursuant to the directions to the taxing-officers of H. T. 1853; but, upon its being suggested that the arbitrator would give his certificate for the higher scale, the taxation was postponed, and the arbitrator gave his certificate accordingly; but at the time of his doing so his time for making his award had expired. The costs were subsequently taxed upon the higher scale; and upon a motion for a review of the Master's taxation, on the ground that the costs should have been taxed upon the lower scale, as the plaintiff recovered less than 201.: Held, that the taxation upon the higher scale was correct, for that the money tendered and paid into court was recovered in the action equally with that which was given beyond it, and so the amount recovered in the action exceeded 201. (overruling Dixon v. Walker, 7 M. & W. 214.) Query, whether an arbitrator, who has the same power given him as a judge at Nisi Prius, has power to grant a certificate after his time for making his award has expired. In this case the action was brought to recover the sum of 31l. 5s. 8d., for work and labour, &c. To this the defendant pleaded-1. Never indebted, except as to 231. 5s. 8d; 2. Set off; and 3. A tender of 231. 5s. 8d., and payment into court of that sum. The case was ultimately referred by order of Nisi Prius to arbitration, the arbitrator to have the same powers as a judge at Nisi Prius. The arbitrator gave his certificate, finding for the plaintiff on the two first pleas, and for the defendant on the plea of tender; and he directed a verdict to be entered for the plaintiff for 2l. 10s. 5d. beyond the amount paid into court. Upon the parties attending before the Master for the purpose of taxing the costs, it was contended on the part of the defendant that, as the arbitrator had awarded the plaintiff a sum under 20!, the taxation should be according to the lower scale, as provided by the rules of Hilary Term, 1853; the seventh rule of which directs that “in all actions on contract, other than cases wherein by reason of the nature of the action no writ of trial can, by law, be issued where the sum recovered, or paid into court, and accepted by the plaintiff in satisfaction of his demand, or agreed to be paid on the settlement of the action, shall not exceed 207. (without costs), the plaintiff's costs, as against the defendant, shall be taxed according to the lower scale of allowance in the schedule of costs hereunto annexed: provided that, in case of trial before a judge of one of the Superior Courts or judge of assize, if the judge shall certify on the postea that the case was proper to be tried before him, and not before the sheriff or judge of an inferior court, the costs shall be taxed on the higher scale." Upon this the Master was about to tax upon the lower scale, when it was suggested on the part of the plaintiff that, as the arbitrator had all the powers of a judge at Nisi Prius, he would probably, if applied to, give his certificate as provided for by the rule. Hereupon the Master consented to postpone his taxation, and upon an application being made to the arbitrator for such certificate he granted it; this, however, was done after the period limited for his making his award had expired. Upon this the Master taxed the costs upon the higher scale; whereupon Pigott, on the part of the defendant, applied to this court for a review of the master's taxation, on the ground that the arbitrator was functus officio at the time he gave his certificate for costs, and that, the award being for a sum less than 20%, the costs should be taxed on the lower scale. June 12.-H. T. Cole showed cause, and contended, first, that no certificate was necessary, inasmuch as the plaintiff had in fact recovered by his action more than 20%, the sum paid into court being as much recovered in the action as the 27. 108. 5d. awarded by the arbitrator; that this point is decided by the case of Crosse v. Seaman, 10 C. B. 884, which, though a decision upon the London Small Debts Act, 10 & 11 Vict. c. 71, s. 113, is precisely in point, as it contains similar words to the rule of H. T. 1853. In that case the defendant pleaded to a declaration, the particulars annexed to which claimed a sum of 26l. 1s. 5d., for work and labour; first, except as to 77. 15s., never indebted; secondly, except as to 77. 158., payment; and thirdly, as to 77. 15s. tender before action brought and payment of that sum into court. Upon the trial the plaintiff had a verdict for 18/. 6s. 5d., and no certificate for costs was granted. Afterwards an application was made by the defendant for a suggestion to deprive the plaintiff of costs, which was refused, on the ground that the debt had been reduced below 201., by a payment into court under a plea of tender. Subsequently the same case came again before the court (Crosse v. Seaman, 11 C. B. 524), upon an application for a rule for the Master to tax the plaintiff's costs, and upon argument the rule was made absolute, Jervis, C.J. observing—“It is clear that the plaintiff has got more than 207. by his action-we think he is entitled to costs." Maule, J., too, observed in the course of the argument: "The spirit of the thing is that the plaintiff shall not lose his costs where he has obtained by his action more than 201." That here the plaintiff has recovered by his action more than 20%., the words of the rule not limiting the recovery to a verdict. That the tender was bad, and it was incumbent on the plaintiff, notwithstanding the tender, to prove his entire demand, and show that more was due than was covered by the tender: (Woodhams v. Newman, 18 L. J. 213, C. P.) afterwards obtained to review, on the ground that the Cole was also called upon to argue as to the My judgment, therefore, must be for the plaintiff, and HOUSE OF LORDS. Tuesday, May 2. Charity-Gift of the surplus-Increased rents of estates A. by his will, after reciting that he had founded a Held, reversing the decree of the M. R., that the will contained an absolute and unconditional gift to the corporation of S. of the surplus which remained after paying the specific disbursements mentioned in the will, and that the objects did not share the increased rents in the proportions in which they stood to each other at the time of the will. two masters, 31. for an annual feast, and 77. per annum (or what should remain of the 50%. per annum), or thereabouts, for the reparation and improvement of the premises. His LORDSHIP to-day gave judgment as follows:This was a question which arises upon the construction to be put upon the directions given by the judges to the Taxing-masters; and the point was, whether or not the Master was right in taxing the costs as he did, upon the higher scale. The terms of the directions to the taxing-officers are these: [his Lordship here read the directions.] Now the facts in the present case are, that an action was brought for an The state of the authorities commented on. amount more than 20%., to which a tender was pleaded, Whether The Attorney-General v. The Drapers not of the whole sum sued for, but of a part only. Company, 4 Beav. 67, was rightly decided? The action was ultimately referred to arbitration, and This was an appeal from a decree of the M. R. the result was that a verdict was to be entered for In 1680 Hugh Squier built a free school and a the defendant on the plea of tender, and for the master's house in the town of South Molton. By an plaintiff on the other pleas, with a sum beyond indenture dated in 1686 he assigned them to five what was tendered, but for less than 20%. It was, trustees, and, after reciting his intention to settle however, contended by the plaintiff that he had re- 1000l., or lands to that value, for the better support covered more than 20%. by the action; and before the thereof, he gave directions as to the school, and reMaster it was insisted by the defendant that the costs citing that there was about 507. per annum, or money should be taxed on the lower scale, and Dixon v. to that value, desired to be given by him for a perWalker, 7 M. & W. 214, was relied upon as an autho-petual endowment, he directed 201. each to be paid to rity. And no doubt that case is greatly in point for him; for there, as in this case, there was a verdict for the plaintiff beyond the amount tendered. And Alderson, B. was of opinion that the sum recovered in the action was that which was given beyond the amount tendered and paid into court. There are, however, some subsequent cases decided upon the County Courts Extension Act, which go very far to bear out the point contended for by the plaintiff. I took some time to consider the cases, to ascertain their precise bearing. But it appears to me that there is a good ground, not adverted to in the cases-certainly not in Dixon v. Walker-which is, I think, decisive of Pigott, in support of the rule, contended that as the present case, and which arises upon the plea of less than 20%. had been awarded, he had gone on for tender, which is not in itself a plea in bar to the action. too much. [WIGHTMAN, J.-Suppose a man brings The form of a plea of tender is, that "the plaintiff an action for more than 20%. and a tender is made of ought not to maintain his aforesaid action thereof less, is he bound to take it ?] The money is impro- against him to recover any more or greater damages perly refused. [WIGHTMAN, J.-Not so; more is than the said sum." It is not, therefore, in bar of the due than is tendered.] The case of Dixon v. Walker, action, but merely that the plaintiff ought not to 7 M. & W. 214, decided by Alderson, B., is exactly recover more than the sum tendered; and I find there in point in the defendant's favour. There there was is the case of Giles v. Hartis, in 1 Lord Raym. 254, an action of debt in which the plaintiff claimed more in which it was held that, "though a tender is made, than 204. The defendant pleaded as to part a tender and the plaintiff refuses the money, yet the tender before action brought, and as to the residue nunquam cannot be pleaded in bar of the action, neither in debt indebitatus. The plaintiff took out of court the money, or assumpsit, but in bar of damages only; for the and entered a nolle prosequi as to that amount, and at debtor shall nevertheless pay his debts." It seems, the trial had a verdict for the balance claimed by him therefore, that the plaintiff does recover in the action, of 131. The Master on taxation allowed the plaintiff not only the amount beyond the tender, but the his costs according to the ordinary scale. A rule was amount tendered itself. This seems to be decisive. On 24th Feb. 1709 the said Hugh Squier made his will, of which the material parts were as follow:"And whereas I have, about twenty-eight years ago, erected and built a free school in the town of South Molton, in Devon, for the teaching of thirty poor people's children to write and keep accounts, thereby to fit them for any ordinary trades and employments; and whereas the said school hath prospered hitherto very well under the government of five trustees, who have managed that affair according to divers rules and directions contained in a book of orders left with them by me, the founder, for that purpose; and my will is that, as often as any two of the five trustees shall die away, &c., and it is expected from those particular men, the five trustees, that they shall take upon them the care of paying out of the revenue of Northam and Upcott and Westminster 291. 2s. 9d. to the church of Windsor every year, and to do it betwixt Michaelmas and Christmas, for rents and tenths, and 157. at the end of every four years for a fine, for the adding of four years de novo unto their lease, or else 307. at the end of every seven years, as their custom of renewing is, together with 37. 17s. 10d. for the charges of passing and making every new lease, and adding either four or seven years thereunto, and by this renewing at every four or seven years' end, to make their estate perpetual; and, having observed that the church of Windsor did take it more kindly when I renewed at four than at seven years' end, therefore I do recommend to the five trustees to renew at every four years; and for their taking this care particularly upon themselves they shall receive a reward of 20s., I say twenty shillings, per annum, unto each trustee, for all the time they are in this employment; and for the defraying of this charge, and for the aforesaid intent and purpose, and also to the further uses that are hereinafter expressed: I do give and bequeath unto the mayor and alderman of the borough of South Molton, in Devon, and to their successors, for ever, all my right, title, and estate which I have, or hereafter shall have, in the parish of Northam, in Devon, except the presentation, which is reserved for reasons which hereinafter are expressed, provided and upon condition that they do permit Ayres, the present vicar of that parish, and his successors for ever, to have, hold, and enjoy the vicarage-house, with the gardens, orchards, and the glebe lands, lands thereunto belonging, or therewith now enjoyed, and also all the oblations, offerings, and surplice fees, and Easter duties that may arise out of the same, and do also pay him, the said Mr. Ayres, and his successors, 16., I say sixteen pounds, per annum, by quarterly payments; and do also pay the above-mentioned sums, which the church of Windsor doth usually and reasonably require for a fine upon every such renewing of their lease, as their custom of renewing is; and do also pay 51. 15s. per annum yearly unto George Whichers his almshouses in Westminster; and also do pay 401. per annum towards the maintenance of South Molton free school, that is to say, 251. to the schoolmaster, 57. to the trustees, 31. for their two usual feasts at their visitation, and 77. for the reparations of the school and schoolhouse, and the highways between the schoolhouse and Molebridge in all 401. per annum; and the overplus which the said Upcott and Northam do produce, beyond and more than all these disbursements do amount unto (which I do find and compute to be about 60%. per annum), shall go, the one-half thereof always unto him who is and shall be mayor of South Molton for the time being, towards the expenses of mayoralty, and the other half towards the mending of the highways in and near the town of South Molton, in Devon." The testator then gave three leasehold houses in St. Martin's-le-Grand to the parish of St. Margaret's, Westminster, the rents of which were to be appropriated to various purposes; and then proceeded :— "And because that several sums, whilst they stand written in words at length, and until they are set down in figures (the one sum under the other), cannot well be cast up, therefore I have drawn up several accounts-the one of all I have now given unto the corporation of South Molton, in Devon, and to the free school which I built there about 28 years ago; and the other of all I have given unto the parish of St. Margaret's, Westminster. Both of these accounts I do make to be part of this my will; and my will and meaning is that all what I have given unto the corporation of South Molton, and to the free school which I built there, shall be delivered over unto them by my executors from the time of my death; but what I have given to the parish of St. Margaret's, Westminster, my executors shall continue to keep, and the profits of it, in their own hands, and to their own use, for one year after my decease." The account reefrred to in the will was as follows, and intituled "An account of the product and of the outgoings of all the things which I have bestowed on the corporation of South Molton, and the free school I built there." To the church of Windsor, every year, for their high rents and tenths, &c. For a fine of 15l. once in four years, and 31. 178. 10d. charges for making every new lease in all 187. 17s. 10d. at every four years' end, one-fourth part whereof To the Vicar of Northam and his successors for the time being, per annum Also to the executors of George Whicher's almshouses in Westminster, per annum Balance which the Corporation of South 25 0 0 0 0 700 29 2 9 in whose favour the rents and profits of the estates had been bequeathed in trust to the corporation were formerly and then entitled to participate in the increased rents, in the proportions in which such rents were given by the will respectively; and a reference was made to the Master accordingly : (14 Beav. 357.) Against that decree the corporation now appealed. The Solicitor-General (Bethell), and Karslake, for the appellants, contended that the will of Hugh 5 0 0 Squier contained an absolute and unconditional gift to the Mayor of South Molton towards the expenses of the mayoralty, of one half of the overplus arising from the estates of Northam and Upcott over and above the disbursements specified in the will. The testator did not, according to the true construction, intend the free school and other charities. to partici pate in the increased rents and profits of the estates in the proportions in which the rents at the date of the will were directed to be applied. Accordingly the Attorney-General had established no case for relief, and the information ought to have been dismissed with costs. Authorities referred to: Attorney-General v. Mayor of Bristol, 2 Jac. & W. 294; Attorney-General v. Draper's Company, 4 Beav. 67, 4 14 5 Attorney-General v. Skinner's Company, 2 Russ. 435; Thetford School case, 8 Co. Rep. 130 b; Attorney-General v. Brazenose College, 8 Bligh, N. S. 377, and 2 Cl. & Fin. 295; Jack v. Burnet, 12 CL. & Fin. 812; Re Jordeyn's Charity, 1 Myl. & K. 416; Attorney-General v. Haberdashers' Company, 1 Bro. C. C. 103; £95 122 Attorney-General v. Solly, 5 L. J. 5, Ch.; AttorneyGeneral v. Grocers' Company, 6 Beav. 526; Attorney. General v. Cordwainers' Company, 3 Myl. & K. 534; Attorney-General v. Smythies, 2 Buss. & M. 717. Rolt, Q.C., and W. Morris, for respondents, con 16 0 0 5 15 0 £160 0 0 Molton will gain per annum, excepting 137. 8s. per annum land-tax, whilst that lasteth, and the poor's-rate, whereof the tenant (by his lease) pays the moiety 64 7 9 tended that on a true construction of the will, the free school and the other objects of testator's bounty were to receive the whole of the then income of the property, and that the mayor and aldermen were trustees only of such property. The cestuis que trust were entitled to the increased rents in the relative proportions in which they stood at the date of the will: (Attorney-General v. The Merchant Venturers' Company of Bristol, 17 L. J. 137, Ch.) Reliance was chiefly placed on The Attorney-General v. The Draper's Company, 4 Beav. 67. "If the taxes to church and poor do not abate somewhat thereof, but the Parliament choose to exempt Windsor, and schools and almshouses from taxes; but whatever the balance (de claro) proves to be more or less, the half thereof is given every year to him that shall be Mr. Mayor in being, and the other half towards mending the highways in or near South Molton, especially between Molebridge and the schoolhouse. "Item. I do desire the corporation, out of their 641. 7s. 94d., to pay for the children's pens, ink, and paper." The testator, Hugh Squier, died shortly after the date of the will, and made no other provision for the school except what was contained in the will. The value of the property had greatly increased, and in 1850 the gross rental amounted to more than 650l. a year. The surplus or residue of the clear income, after paying the sum of 401. to the trustees for the time being of the said school, and also making the other specific payments directed by the will, and after paying for mending the highways near the town of South Molton, had been retained by the mayor and corporation, and applied by them to their own pur poses. On 8th April 1850 an information was filed by the Attorney-General, on the relation of James Miles, of the King's-road, Chelsea, against the trustees of the school, and the then Mayor of South Molton; and it was thereby prayed that it might be declared that the lands and property devised and bequeathed by the said Hugh Squier were held by the corporation of South Molton for charitable purposes only, and that the whole of the rents ought to be applied to the several charitable purposes expressed in the will, in the proportion which the original amount devised and bequeathed to each such charity bore to the whole income of the property, and that it might be referred to the Master to take the accounts, and make the inquiries accordingly. The corporation of South Molton, in their answer, admitted the facts, as already stated, and submitted to the court whether they were bound to apply any larger sum than the above 40%. to the said free school. The trustees of the school also put in their answer, The cause came on to be heard before Sir. J. Romilly, M. R. on 25th July 1851, when his Honour made a decree, declaring that the objects The Solicitor-General replied. The LORD CHANCELLOR.-My Lords: As this case was opened yesterday, and has therefore occupied two days, it has given time to those who have heard it to deliberate on what the judgment of the House ought to be; and I think we shall not be proceeding with any undue haste, if I ask your Lordships, now to come to a decision of the question before you. In general, it is your Lordships' habit to consider cases some short time before you give your judgment; but, as in this case an opportunity has been afforded us of looking into the authorities since the case was opened yesterday, I feel no difficulty in moving your Lordships to come to a decision at once. My Lords, I cannot but think that this decree, which I for one conceive to be erroneous, was pronounced in this case in consequence probably of the attention of the very learned judge by whom it was made having been directed into a somewhat erroneous channel; beca I observe that the arguments seem to turn on the question whether this is what is called a condition or a trust. That really is an argument entirely beside the merits of the case. This is a case in which the only point really to be decided is, what were the intentions of the testator, legitimately to be collected from the words of his will? My Lords, I will consider the case first of all assuming that there had been no decisions on the subject of these charitable cases, but that we were now deciding the question for the first time. I cannot but believe that, if we were in that state of things, there could be to two opinions on the subject. The language seems to me to be so perfectly clear, that nothing but the former decisions, which are supposed to fetter your Lordships' judgment, can at all raise a doubt about the matter. This testator having an interest in the town of South Molton, which place some twenty-five or thirty years befor the date of his will he had erected a school, for the purpose of having reading, writing, and arithmeti |