66

taught-in some degree a classical school-makes his will. By that will he appropriates certain property, which he desires shall be held for keeping up the school. And the way in which he does so is this. After stating that his property consists of leaseholds, to be renewed at certain intervals of either seven or four years he recommends four years he proceeds thus: "And for the defraying of this charge (that is, the charge for keeping up the estate for the benefit of the school), "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 [His Lordship read as above set forth down to the words] per annum yearly unto George Whicher his almshouses in Westminster." Now we come to the part which gives rise to the main question before your Lordships: "And also do pay 401." &c. [reads to the words] "towards the mending of the highways in and near the town of South Molton, in Devon." Now, supposing it had ended there, and there had been no authority fettering your Lordships' judgment, I would ask with confidence, could anybody doubt that what was to go to the school was the 401. a year; and that, whatever the surplus was, be it more or less, it was to go one half to the mayor, and the other half towards keeping in repair the highways? If it had rested on that part of the will, I should have said there was not the least doubt on the subject. If that even were at all doubtful, it seems to me that any possible doubt which there might have been, independently of the authorities, would be cleared up by what follows at the foot of the will, which is this. The testator, remarking that it would be difficult to tell until he had reduced the account into a tabular form what the fractions were, refers to an account which he proposes to add, and does add at the foot of his will, 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." He had given this property to South Molton, for the benefit of the free school. But some attempt is made to raise a doubt upon the expressions, as if he nad given it to the school as well as to the corporation. That is reasoning in a way that I must confess I cannot quite understand; he had given it to the corporation and to the school-to the corporation for the benefit, to a certain extent, of the school, and for certain other purposes for the benefit of the mayor, who was a member of the coporation. That is the loose way in which he describes the account. He then goes on giving an account of his income, and he puts the estate at Northam of the value of 125l.; that at Upcott at 15.; and then there is a rentcharge upon the parish of St. Margaret, Westminster, of 202.; making altogether 1607. On the other side, there are the outgoings. He enumerates the 401. in different proportions for the school; then he states the rent payable to the Dean and Chapter of Windsor; he estimates the fines payable every four years at 41. 14s. 5d., the payment to the vicar 167. a year, to the almshouses at Westminster 5l. 158.; and then he adds:-"Balance which the corporation of South Molton will gain per annum, excepting 131. 8s. per annum land-tax, whilst that lasteth, and the poor's rate, whereof the tenant (by his lease) pays the moiety, 647. 78. 94d." That is what he describes as the sum which the corporation of South Molton will gain, What does that mean, supposing it had stopped there? Does not that clearly show that he estimates the estate as then worth 160 a year? He appropriates all these different disbursements, some of which will certainly for ever remain the same, namely, the rent payable to the Dean and Chapter of Windsor the fines of course would be fluctuating--and then he states this as the balance which the corporation of South Molton will gain, except that they will have to make certain appropriations for land-tax and poor's rate. Can any one doubt that what he means is that the corporation, receiving this rent, are to pay 40%, in the way he puts it, to pay the fines, to pay the sums to the vicar and to the almshouses; and the balance is what the corporation will gain for what he calls their purposes? It is not strictly, however, for their purposes; one half is to go to the mayor, the other half is to go to repairing the highways. The

testator must have been aware that the amount, upon maintenance of a schoolmaster and ushers for the
which the balance was to be calculated. would fluc- poor; and he provided that the usher was to receive
tuate the gross sum would fluctuate (not the 81. a year, and the schoolmaster 104. a year. In course
647. 78. 94d.), because the fines would vary. He of time the property rises in value, and becomes worth
therefore adds: "If the taxes to church and poor do 1007. a year, and the question then arose whether any-
not abate somewhat thereof, but the Parliament do thing more was given to the charity than the 351. a
use to exempt Windsor, and schools and almshouses year. The question was a comparatively new one at
from taxes; but whatever the balance proves to be, that time, and, after an elaborate argument, it was
more or less, the half thereof is given every year to decided, that, although 357. a year was all that was
him that shall be Mr. Mayor in being, and the other so apportioned, 351. a year was all that the estate then
half towards mending the highways in or near South produced. The estate was given for the maintenance
Molton." My Lords, I cannot imagine language that expressly of the schoolmaster, the usher, and other
a testator could adopt more directly and more persons, and the whole was held to be given, and not
pointedly alluding to the circumstance that he did a part only. In referring to similar cases Lord Eldon
not want to have any question raised about whether has remarked that it may be very doubtful whether
it was 60%. or 641., or whatever it might be. He that or any other case having a similar aspect would,
points out those causes which would influence the if it were now to be decided for the first time, be de-
amount; but, be it more or less, he gives one half to cided in the same way. I do not know that there is
the mayor, the other half to mend the highways. An anything very material in that decision, even if it
unlearned person, who knew nothing whatever of the were now to be decided for the first time. But it
decisions that have taken place on the subject of these appears to me that that case has not the least resem-
charitable questions, could not have a doubt about blance to the present. If this testator had said-I
it. I must not, however, overlook the circumstance mean to give my estates at Northam and Upcott,
that the M. R., in alluding to this note, interprets now worth 1607. a year, for the benefit of the school
this doubt as to the amount of the balance, not which I have established at South Molton, and I give
in the way in which I should interpret it, as 50l. a year to the master, and 50%. to the usher, and
meaning to say, in a general way, that it will 60%. to so and so, apportioning the whole; then that
fluctuate from different causes; but, putting the ques- case would govern the present. If it had now risen
tion in a very neat way, he considers that the to the value, as the relator here alleges, of 8001. a
647. 78. 94d. is represented as a definite proportion, year, the whole would be so apportioned. But here
but subject to indefinite charges. Then he says: there is nothing of the sort. The testator makes a
although the sum to be received and that they will distinction between what he appropriates to the school'
gain according to the language of the testator might and the surplus, which he has given, not to the school,
fluctuate, that will not be because the 647. 78. 94d. but to the corporation. It appears to me that case
will vary, but because the charges upon the 647. 78. 94d. really does not touch the present. That case was
will vary. I confess I think that there is somewhat followed by a number of other cases where the estate
of refinement in that; but that, in truth, that is not was given for charitable purposes, and certain spe-
a correct view of the case, because the 647. 78. 93d.cified portions of the rents were appropriated in »
may vary by reason of the fluctuating nature of the
fines which have to be paid; and, although the tes-
tator estimates what it was at that time, it cannot
have been absent from his mind that that would
make the 647. 78. 91d. vary; and although his language
is not perhaps the most accurate, such as a convey-
ancer would have used for the purpose, yet, when I
see that the object of the testator was to constitute a
surplus after payment of these disbursements, one
half of which is given every year to the mayor, the
other half towards the repair of the highways, I con-
fess it seems to me to be a matter that, independently
of authority, does not admit of the least doubt in the
world. Everybody would say that the 401. is to go to
the school; the 291. 2s. is to pay the rent at Windsor.;
4. 14s. 54d. is to go for the fines; 167. to the vicar;
57. 15s. to the almshouses; and the surplus, be it
more or less, the corporation are to take for them-
selves. If it stood independently of authority, there
could be no doubt upon the case. Then is there any
thing in the authorities which have been quoted that
is to compel your Lordships to do that which it is
always most distressing to do, namely, to decide that
a testator's language is to be interpreted as meaning
something which every one of your Lordships must
feel perfectly satisfied is not what he meant? Is
there anything which will compel your Lordships to
adopt such a construction? The principle which has
been relied upon for inducing such a necessity (a very
sad necessity if ever such should exist) is, that there
has been a current or stream of authorities which
have led to putting a particular construction upon
language of this sort, and which must govern the
present case. I agree with what was said by Lord
Eldon, that where there has been such a current of
authority, or a single old authority very long acted
upon, however anomalous, it is much more to the
interest of mankind that it should be followed, rather
than speculate on whether it is right or wrong, and
adopt a construction apparently more reasonable
and more in accordance with modern times. But
I confess that I see nothing in any of the autho-
rities which necessarily leads to such a con-
clusion. The earliest authority is the case re-
ported in Lord Coke, the Thetford School case.
That was a case in which a testator gave an estate
worth 351. a year for charitable purposes, for the

particular way. There are the cases of The AttorneyGeneral v. Arnold, Duke, 59; and The AttorneyGeneral v. Johnson, Amb. 190; and the court, in considering those cases, always found their way to the conclusion (whether correctly or not, we have not now to decide) that, although that which was appropriated was not the whole of the rent, yet the whole was intended to be dedicated, and the surplus remained to be applied by the court, either to the same charity that was indicated by the testator, or to some other charity. Then arose, in more modern times, the cases of The Attorney-General v. Smith, 2 Vern. 746; The Attorney-General v. Brasenose College, 8 Bligh. N.S. 377; and The Attorney-General v. The Corporation of Bristol, 2 Jac. & W. 294-in which the tendency of the decisions went exactly in the opposite direction. Those were cases where estates or sums of money had been given to charities, and the surplus given to somebody else; and in those cases it was held that there was nothing whatever in the doctrine of the Thetford School case, or the cases of The Attorney-General v. City of Coventry, Bun. 290, or The Attorney-General v. Arnold, Duke, 591, or The Attorney-General v. Johnson, Amb. 190, to compel the court to say that the parties to whom the surplus was so given did not take it, as it was expressed they should take it, for their own benefit. Then there came in modern times the case before Lord Langdale, which is the sheet anchor of the respondents, and which they said was so conclusive that, if this case were decided otherwise, it would have the effect of overruling it. I mean the case of The Attorney-General v. The Drapers' Company. In that case the testator gave a sum of money to certain persons, with directions that they should out of it purchase land, which should yield a net income of 100%. a year; and then the rent was apportioned to the extent of 961. a year to a certain specified charity; and as to the residue, being 47. a year, the testator gave it to the trustee. Lord Langdale there held that, the estate having increased materially in value, all the recipients would increase in proportion, and that those who took the residue would only take in the proportion of 4%. to every 100%., and were to vary and fluctuate with the other objects of the testator's bounty. For aught I know, that decision might be exactly what your Lordships would have come to. We

perty subject to those charges, and subject to other
charges to the corporation. Then it is said that these
gifts are not to the corporation, but to the mayor
individually, and to the highways. And that obser-
vation was made in order to take away the force

class are a little difficult; and they have sprung
mostly, no doubt, out of the obiter dictum in the
Thetford School case. For instance, take any of the
modern cases, which have been referred to, in which,
in point of fact, there was no gift of the residue, but
a gift to a particular body—a college, for example-which belongs to the actual devise of the property to
for the benefit of that college, and to certain persons be- the corporation, subject only to these charges. The
longing to that college, or to certain poor persons, con- answer to that is, that the testator has told you, over
fining the objects ultrà the college to particular sums and over again in this will, that he considers the gift
named; and then the question arose, what is the of the residue to be to the corporation. He has told
meaning of that? It is a gift to the college, and to you, in several parts of the will, that the gift is to the
the bursars, for example-the particular objects have corporation. The corporation represent the town; and
10%. a year given to them. Now that the rents have one-half of the expenses of the mayoralty were to be
been increased so greatly, are they not to take in the defrayed out of the surplus, for the benefit of the cor-
like proportion, with reference to the original gift, poration, thus saving the corporation for the time
with the body of the college, any increase of rent? being half the expenses of the mayoralty, so far
After a considerable struggle with the courts below, as that fund would go. The expense of the repair of
the Court of Appeal has in every instance confined the roads would necessarily fall upon the town, as
the particular objects to the sums specifically given, represented by the corporation. Therefore, at that
and left the bulk of the property, with a full increase, period, in point of fact, the gifts were gifts to the
to the body to whom no particular sum was given. corporation, in the sense in which the testator speaks
So that in all those cases, there being no gift of the of them. If you turn to the will, it is exceedingly
residue as residue, but only a gift to the body, the important as regards the intentions of this testator;
whole residue has been held to vest, however large it and it seems to me to be perfectly clear what he in-
has become, in the college for example, and without tended, from the language which he uses. He is
any right to any increase on the part of the particular speaking of the trustees of the school which he had
objects of the bounty of the testator. I asked the established, and he directs that they shall pay out
learned counsel who was addressing the House on the of the revenue of the estate certain sums for renewals
part of the respondent what would be the consequence and so on. They are to take upon themselves the
in this case if there was no gift of the residue? He en- trouble of doing that; and in respect of doing it he
deavoured to make out that, in that case, there would be, gives them 20s. a year each. What do you find
of course, the same consequence. But the cases clearly afterwards? That when he has given the estate to
establish that, if there had been no gift of the residue the corporation, the corporation are to pay those sums
in this case, if there had been perfect silence respect- to the trustees, in order that they may take upon
ing it, the corporation would undoubtedly have taken themselves the trouble to do what he has pointed out;
the whole of the property, subject to the particular and then, after having directed these payments to be
reservation. That, I apprehend, admits of no doubt. made by the trustees of the school, he says: "And
Now it would be very singular if, in the case I put of for the defraying of this charge, and for the aforesaid
there being no gift of the residue, the corporation intent and purpose, and also to the further uses that
would have taken the residue, and yet if, there being are hereinafter expressed, I do give and bequeath unto
an actual gift of the residue, they were excluded from the mayor and aldermen of the borough of South
anything beyond the actual residue at the time of the Molton," so and so. My Lords, I cannot possibly treat
testator's will; whereas, whatever might have been lightly the form and meaning of this will. Having
the increase (which might have been 10,000l. a year), directed the trustees of the school to expend certain
they would have taken the whole of that increase moneys, which he afterwards directs to be paid out of
without any gift at all. So that which was expressed the amount of the rent (subject to that charge; there-
must have been considered to have excluded them fore there is a charge on the property to that amount),
from that which they took by implication without he devises the estate itself to the corporation for ever,
any expression. My Lords, I asked another question, for the purposes before expressed, and for the uses
which appears to me to decide this case. I asked afterwards expressed, on condition that they shall do
whether the respondents contended that, if there was certain things. I do not at all deny that the words are
a deficiency of the rental, then the 407. a year was to sufficient to create a trust, and could not be construed
give way in proportion to the residue? And the as a mere condition to be taken advantage of by no-
learned counsel was necessarily compelled to say body but by the heir-at-law. For example, it is not
“Yes.” I take that to be as clear as any proposition a strict condition in law; but it amounts to this-"I
ever stated in law, that, according to the authorities devise this estate to you the corporation for ever, sub-
and according to this will, the 401. a year never was ject to the charges that I have imposed upon it, and
to abate a single shilling while the rents of the estate subject to the provision that I afterwards make."
would have produced that money, though the residue But he there gives certain specific sums, and gives
would have been nothing. I think that is perfectly them in a way that it would be utterly impossible at
clear, both in law and from the intention of this any period, under any state of the law, that the cor
testator. And then, as has been observed, the party poration could have ever resisted making these pay-
who is to take the property must also bear the bur- ments in full while the rents were sufficient to answer
then. The cases have decided that, the moment you them; or, if the rents fell below them, they must
are compelled to hold that there is a deficiency, these have apportioned them accordingly. But they never
particular parties are not to bear that deficiency. I could have retained a single shilling for themselves,
cannot agree that the framing of this devise is not whilst any of these payments required to be made.
important as regards the question whether it be a It is a gift to the corporation, subject to those parti-
condition, or a trust, or whatever you call it. This cular charges. If, therefore, there had not been a
is a case in which a particular charge is thrown upon word said about surplus, I should hold it would have
the property, and, subject to that charge, the property been utterly impossible to have argued with any hope
is actually and positively given to the corporation. of success that the corporation should not have taken
Now, if it be given to the corporation, and all the the whole property subject to these charges. The
beneficial interest be not disposed of from them, and testator, naturally enough, had a fancy for endea-
no intention be shown upon the face of the will to vouring to see how he had disposed of his funds. He
dedicate the whole to charity, it is quite clear that says: "I give 107. to one, and 57. to another, and 47.
the corporation would take it unless there is some to another, and so on. I must put them down." He
express term upon the face of the will to show an balances, as any man would do, his accounts; and he
intention that they shall not do so. Now there has says, "I have got 160l. to dispose of; let me see how
been a little mistake, I think, as regards the form I shall do it." He puts it down; and then he comes
of this will. It is supposed that the testator spoke as if to the fractions, which it is necessary for him to set
he had given the property to the corporation and to the out, in order to enable him to balance his account.
free school. He spoke of the property that he had given But does he show by that an intention, if there
to each—that is, he has given to the free school certain should be any rise in the rents, to take from the cor-
charges out of the property, he has given them pro- poration that which he has already given to them?

That

He has given to them the whole estate, not on any trust, but upon the particular condition that they shall pay those particular charges. It does not remain there. He does not speak of them as jointly with others. We are told they are joint deviseesjoint legatees, if you like to call them so. argument amounts to nothing. The argument is, that the 407. a year, for example, represents a given portion of the estate itself, whatever it may produce. Is that the way in which you speak of disbursements? How does any man speak of his own estate in making his will? He puts down on one side his means, aud on the other his disbursements. These are the expenses of the corporation. Of course, they had their payments to make. That is not the language in which a man speaks of charges which he means to represent as made on a portion of the estate itself. If you come to the case of The Attorney-General v. The Drapers' Company, taking it for granted that that case was properly decided, by dealing out the exact amount of rent, you do in effect dispose of the rent in those particular proportions, whatever the rent may be. And, as I before observed, if the amount is to be increased in the one case, so the amount must be decreased, if there be any occasion for it. Here it is not a question of inclusion-it is a question of exclusion. We are asked to exclude the corporation. What is the ground? The testator says that he gives them, after these disbursements, all the overplus, which he computes at about 601. a year. Can anything be more clear than that he speaks of that sum, not with the view of preventing them from taking whatever may be the amount, but to show what the present benefit was. I do not know how the words are to be got rid! of at the end, where he states, "whatever the balance may be, be it more or less." Why am I to exclude those words, if they are necessary, or why am I to suppose that those words are ambiguous? We are told that that is to be regulated by the amount of charges upon a given sum mentioned. I, of course, understand how this argument is put; but I do not understand the weight of it. We all understand the application of the Thetford School case, and we know how it would operate; but if you come to an uncertain and necessarily fluctuating surplus, given quà surplus, the question in the result would come to this-Is this surplus, if it be necessary to be given at all, given quà surplus? Or is it given as so much money, as representing a given portion of the estate with reference to the other sums? It does not bear a moment's argument. It is perfectly clear that it was given quà surplus. It represented the surplus at that time; and whatever is surplus is surplus to all time. And therefore nothing is taken from the corporation by these particular gifts. They already had the surplus. It was necessary to exclude them. by some clear expression. So far from being excluded, I am satisfied that no such thing was intended.. Every single passage satisfies me that they wereintended to be included by the testator. And, therefore, I very cordially concur with both my noble and learned friends in the conclusion at which they have arrived. With regard to the costs, I entirely agree. likewise. I think that this is one of those cases that ought not to be encouraged. Here is a case in which,. after a century and a half, there has been an attempt to disturb an arrangement which nobody ever thought of impeaching before. There has been plenty of opportunity of doing it. This case was brought before the commissioners in 1823, and then no step was taken, and everything was thought right and proper. There was another commission at a much later time, namely, in 1838, which was intended to wind up all these cases. This is one of those speculative cases that I did hope were entirely at an end. They were at one time a disgrace to the law, and they were put a stop to. I am sorry to see an attempt made to revive them. It would have been right enough if the case had been made out according to the decree below; but, that failing, there is no ground whatever, in my opinion, for your Lordships to make any of the inquiries or directions which have been sought for. But I think that the costs should not be given against these parties beyond the hearing-and for this reason simply, and for no other, that the learned judge in

(Before R. W. ELLIOT FORSTER, Esq., Deputy Judge.) cases.

that her son and son-in-law had robbed her, in getting her to sign those deeds. She stated she did not consider the deeds binding upon her. I told plaintiff that I had paid Mrs. Teilett.

Eyton commented strongly on the fact of having engaged two professioual gentlemen from Rhyl, a distance of twenty or thirty miles, who were entire strangers to the family, and also for having the job done at that particular time, when Mrs. Griffiths, the daughter of Mrs. Tellett, had, in consequence of fever, been, about a week previous, taken to the Denbigh Asylum.

Eyton put in a document, being a declaration made by Mrs. Tellett, subsequent to the execution of the deed of gift, in which it was stated that she was not aware of having signed the deed, and that it was void and to no purpose whatever. Witnessed by Sir S. R. Glynne, Rev. Henry Glynne, and the Rev. J. Husband. Four witnesses were called by Mr. Eyton, one of

whom stated that she had been servant with Mrs. Tellett, that she slept in the same room with her. That Mrs. Tellett "rambled" often both day and night, ordering her in the day time to lock the door and not to leave it open until ten or eleven o'clock at night. She very frequently cried out "murder" when no one excepting witness was in the room. She very often seemed as if she was nursing and embracing a child in each arm. Ordering all servants in the early part of the day to go to bed, and not to remain up at all times of night. She very often gave directions to go to milk the cows at unseasonable times of the day. The other witnesses corroborated the witness in every particular.

It appeared that Mrs. Tellett became very much affected because Mrs. Griffiths had been taken to the Denbigh Asylum, and that after her return she became more composed, insisted upon receiving the rent as usual from the defendant, which he accordingly paid.

His HONOUR, without hearing Mr. Buckton in reply, interposed, and said, that the case had now assumed a different character, and was one which his jurisdiction was ousted.

EDWARD HUGHES v. JOHN COTTERALL.
An action to recover 21. under the following circum-

stances.

years, 1851, 1852, and 1854. When the case first
came on for hearing it was adjourned in order that the
plaintiff might furnish a fresh bill of particulars. After
he had done so, the defendant, by the advice of his
solicitor, signed a confession acknowledging the debt, in
order to save the costs of a further hearing, and Mr.
Walker contended that he had done so in accordance
with a section of the County Courts Act, which had
been especially enacted for the purpose of enabling a
debtor to take that course. The question of costs was,
however, pressed on the part of the plaintiff, by Mr.
Scholes.

purchased, and consequently they were returned, per railway, to the plaintiffs. The latter refused to receive them, and since that time they had been lying in the luggage warehouse of the Mirfield station.

Several witnesses were examined as to the quality of the waste, in favour of both plaintiffs and defendants, after which,

His HONOUR said he thought the balance of evidence was against the plaintiffs, and he therefore should give his judgment for the defendants.

LAZENBY v. TONGE.

Claim for stone, referred to arbitration.

The plaintiff in this case, John Lazenby, for whom Walker appeared, is a stone-mason, and sought to reThomas Tonge, manufacturer, of Earlsheton, for stone cover the sum of 301. 6s. 10d. from the defendant, supplied for the erection of a house.

Scholes appeared for the defendant, and by mutual arbitration to Mr. John Gommersall, valuer, of consent the matter was referred for settlement, by Dewsbury.

CRAWSHAW v. CRAWSHAW.

Walker, on behalf of the defendant, opposed the application on the ground that the amended particulars furnished by the plaintiff after the adjournment were materially different from those with which he had been previously served, and therefore his client was perfectly justified in signing the confession of the debt and opposing the costs. He contended that if the same particulars had been furnished on the first occasion the debt would have been immediately acknowledged, and the expenses saved. It appeared that goods had been supplied by the plaintiff to each of the partners in the firm of Harrison and Austin, and charged to the partnership account. A balance was struck in the plaintiff's ledger in December, 1852, at which time it appeared that he had the sum of 107. 158. 7d. from the firm, and not from Har- Claim for damages for encouraging an apprentice to rison individually, in his private capacity. Since that run away,-Allowed. time the defendant had only received about 31. worth of The plaintiff in this case, Henry Crawshaw, is a the goods, the value of which was now charged against tailor, residing at Heckmondwike, and sought to recover him. The greater portion of the goods were supplied 37. 128. from the defendant, Joshua Crawshaw, for before that date, and consequently, with the exception loss sustained in consequence of the latter encouraging of 101. 15s. 9d. worth supplied to both partners, they the plaintiff's apprentice to run away from his employer, had been settled for by the firm. After the balance was and harbouring him. struck in the plaintiff's ledger, each of the partners had been supplied with goods, till the amount as due from the partnership was 197. 58. 1d. Mr. Walker said he had advised his client to sign the confession of the debt., after the amended particulars were furnished, because the plaintiff had good grounds for action against him, as the partners were individually liable for the debts of the firm.

The plaintiff, on being put in the box and sworn, stated that he was requested by the partners, at the time the dissolution took place, to furnish particulars of the goods supplied to each individually, in order that they might be able to ascertain the amount each would have to pay, and at that time he furnished them exactly with the particulars as they appeared in the account then before the court.

Plaintiff had bought a calf from the defendant for 11. 7s. 6d., paying the money at the same time, and stipulating that defendant would give it "three meals' milk" and he would afterwards take it away. During this period defendant's mother sold the same calf to Mr. Harrison, the defendant's partner, was next put another party, who took it away. Defendant had in the box, and, on being sworn, he said that at the time offered the 11. 78. 6d. to plaintiff in return, and also the dissolution took place, a valuation was made of the 2s. 6d. for his journey, &c., which was not accepted-stock-in-trade, &c., in order to ascertain how much he 12s. 6d. being demanded.

should have to pay the defendant, who was going out of Judgment for plaintiff for 58. in addition to 17. 78. 6d. partnership. He paid him the sum of 163., with the Eyton for plaintiff, Buckton for defendant.

PETER JONES v. EDWARD BELLIS.

An action to recover 11. Plaintiff had summoned defendant to appear at petty sessions held before J. O. C. Read, Esq., at Northop, on the 27th April last, to answer a charge for having fraudulently passed with timber, carriage, and horses through the Northop churchyard gate, whereby payment of tolls (128.) was evaded, when the case was dismissed with 8s. costs.

12s. having been paid into court, was accepted.

YORKSHIRE.

DEWSBURY, June 1, 1854.

(Before T. H. MARSHALL, Esq.)

FEARNLEY v. AUSTIN.

full understanding that the defendant was to pay his
proportion of the flour account due to Mr. Fearnley,
as shown by the bill of particulars which had been
furnished by that gentleman at his (witness's) request.
He gave a copy of those particulars to his partner, and
asked him whether he would pay the amount himself, or
receive so much less from the business. The defendant
said he would have the whole amount of the 1637, and
pay the flour account himself.

Chadwick appeared for the defendant. It appeared that the apprentice was a step-son of the defendant. After the case had been fully gone into, His HONOUR gave a verdict in favour of the plaintiff for 31.

SHEFFIELD, March 23, 1854.
(Before WILLIAM WALKER, Esq.)

WOSTENHOLM v. EATON.

"The Central Democratic Association."

A newspaper proprietor being treasurer, and having
received moneys in that capacity, has no right to pay
himself his account as a creditor of the society.
The plaintiff in this action was Henry Wostenholm,
pen-knife manufacturer, and the defendant Wm. Eaton,
one of the proprietors of the Free Press newspaper.
Fretson was for the plaintiff.
Chambers for the defendant.

The action was brought to recover 67. 188. 10d. In the year 1851 there was formed a central democratic association, which consisted of delegates from the municipal wards, and numbered 24 members. The parties to this action were members of that society. At the close of the year, 1851, the association being in low water, it was arranged that a soiree should be got up with a view of improving the "exchequer." The soiree was held, the edibles for which were provided by Mr. Thompson, confectioner. His account, 67. 18s. 10d. was disputed, and as he found that it was probable he would never get paid at all unless he took active proceedings, he sued Mr. Wostenholm, as one of the persons who gave the order to him, for his account. Mr. Wostenholm, on that occasion denied that he ever gave the order, and asserted that it was given by a person named Forster, who has since gone to America. The judge, however, gave judgment against him for the amount sought with The defendant, on his oath, denied that ever he re21. Os. 1d. costs. Mr. Wostenholm now sought to received the particulars of the account due as from each cover from Mr. Eaton the 67. 18s. 10d, on the ground of the partners at the time of the dissolution, and said that as treasurer he held certain moneys of the associathat he never agreed to pay the amount. tion. In the examination of Mr. Wostenholm nothing His HONOUR gave judgment in favour of the plain-worthy of note, but what is stated above, was elicited.

In cross examination by Mr. Walker, the witness said that at the time of the dissolution he agreed to receive all moneys due to, and pay all debts due from, the firm, but with respect to the flour account with Mr. Fearnley, the defendant agreed to pay that when he paid him his

money.

Partnership account-Action against one of two part-tiff, and the costs were afterwards fixed by agreement
ners-Adjournment for better particulars-When at 17. 18s. 6d.
furnished between the two court days-Confession
signed under sect. 8 of 13 & 14 Vict. cap. 61, to save
costs of second hearing.

Charles Walker appeared for the defendant, James Austin, who is a millwright, and till recently was in business at Dewsbury, in partnership with a man named Harrison, the title of the firm being Harrison and Austin. The plaintiff, Jonathan Fearnley, is a corn miller and maltster, carrying on business on his own account at the Calder Mills, Dewsbury.

The action was originally brought to recover the sum of 164 12s. 6d., being balance of account alleged to be due for corn, &c., supplied to the defendant during the

DEWSBURY, June 1, 1854.

HALL v. STOFT AND SMITH.
Goods not according to sample, and returned.
This was an action brought by Messrs. George and
Samuel Hall, waste-dealers of Mirfield, to recover the
value of nine bags of shoddy or mungo, which they sold
to the defendant Stott, who represented the other
defendant, William Smith, who is an extensive manu-
facturer living and carrying on business at Batley.
Scholes appeared for the plaintiffs.
Walker conducted the prosecution for the defendants.
It appeared from the evidence adduced that in
February last the defendant Stott, purchased from the
plaintiffs nine bags of waste, by sample, which were
shortly afterwards forwarded in the usual way, and
delivered in due course at the warehouse of the defen-
dants. On examination, however, it appeared to the
defendants that the quality of the bags delivered was
much inferior to the sample by which they had been

Mr. Eaton was called as a witness for the plaintiff. He stated that he was president of the association. A sub-committee was appointed to make arrangements for the soiree, but he had nothing whatever to do with it. The books of the association, and the accounts, which had been given into the hands of a person called Staples and another to audit, were produced, and as it was set forth in these. Mr. Eaton admitted that on account of the soiree he had received from Mr. Forster the sum of 147. 19s. 2d He had made payments on behalf of the soiree, which left a balance of 51. 148. 8d. This money, the witness said, was paid to him by Mr. Forster as the principal creditor of the association. The Free Press had now an account against the association of 71. 17s. 9d. In addition to the 57. 148. 8d. balance on the soirée account, he had 11. 2s. 2d. belonging to the association. The accounts had never yet been audited, though he was anxious they should be. He did not pay the account of Mr. Thompson, because he was never authorized to do so.

The secretary of the association, Wm. Westran, was next placed in the witness-box. He produced the minutebook.