10

(10 Jur., N. S., 573), which seems to me to be fatal. | during the argument I was inclined to think so, that E parte Cockburn was twice argued, and two deliberate judgments were delivered by the Lord Chancellor upon it, and he lays down, in the most plain and dizet terms, "that a deed to bind creditors who have not assented must be one which places the creditors who do assent and the creditors who do not assent precisely upon an equal footing in point of law." The scope of the present deed is, that the creditors should release the debtor, and that in consideration thereof they should have covenanted by the debtor and two sureties to pay the composition of 10s. in the pand, by two instalments of 58. each at future days; and unless the non-assenting_creditors have secured to them these covenants, and legal rights of action upon them, then, according to the above rule, they are not bound. Now, it is true that the words of the covenant themselves are such as to embrace, not only the assenting creditors, but the non-assenting ones; but a technical rule of law is invoked on behalf of the plaintiffs. A technical rule is one which is established y authority and precedent, which does not depend apon reasoning or argument, but is a fixed established ale to be acted upon, and only discussed as regards ts application; in truth, is "the law." The alleged ule is, that when a deed is made "inter partes," no ne except parties properly so called can sue upon a covenant contained in it; and the contention on the part of the plaintiffs is, that the parties to this deed are such of the creditors as have executed, or assented , or approved of, it, and these only, and that nonasserting creditors are not parties; and inasmuch as they cannot maintain actions upon the covenants to the composition, which in truth is the only legal right created by the deed in lieu of the released debts, they are not upon an equal footing in point of law with the assenting creditors.

the rule was one of construction only, and must yield to the plainly expressed intention of the covenantors; but I am now satisfied this is not the true nature and character of the rule, and that it is one of positive law. It was also forcibly contended, that the rule had no application to a deed whose operation was created, as regards the plaintiffs, not by their agreement to it, but by an act of Parliament. I would have lent a willing mind to this argument, had I not felt constrained by the case of Ex parte Cockburn. But the Chancellor there affirms the application of the rule to composition deeds, and states, that when a composition deed is made inter partes creditors not named or described cannot sue. He adds, "The covenants are with the parties to the deed of the second and third part; and as the deed is between parties, no person who is not a party can sue upon them. This," he adds, "clearly follows from the settled principles of law." The objection, therefore, seems to me fatal, and if it is to be overruled, in my judgment, it must be by a court of error. (See Benham v. Broadhurst, 3 H. & C. 474).

The rule and distinction as to deeds inter partes, and deeds not of that character, is very old, and to be found in the ancient legal authorities; but it is impossible to state or illustrate it more clearly than is done by Lord Tenterden in his book on Shipping, p. 170. This is part of the original text. The book has gone through, I believe, a dozen editions, several dited by Lord Tenterden himself, and the original passage is still continued. He states the rule to be a echnical one, and thus illustrates it:-"If a charterarty under seal is expressed to be made between cerin parties, as between A. and B., owners of the ship. thereof C. is master of the one part, and D. and E. of he other part, and purports to contain covenants with nevertheless C. cannot bring an action in his own ate upon the covenant, and this even although he aled and delivered the instrument; but if the charerparty is not expressed to be made between parties, at is written thus- This charterparty, indented, witseth,' it is otherwise." In the case of Berkeley v. Hedy (5 B. & Cr. 355) the same rule is laid down, and in the judgment it is stated to be a long-estaBlished technical rule, and one believed to be peculiar o the law of England. The deed now in question is ade between the several persons whose names and cals are subscribed and affixed in the schedule, being editors, executing, assenting to, or approving of, se presents of the first part; the defendant, the btor, of the second part; and the two sureties of he third part. The parties, therefore, who alone can e are the creditors executing, or assenting to, or pproving of the deed, and inasmuch as the plaintiffs sent from, and disapprove of, it, and seek to reover their entire debt of 20s. in the pound, they canot sue; and if so, they are not upon an equal footg with the executing or assenting creditors, who can. was contended, on behalf of the defendant, and

BRAMWELL, B., said, that as the Chief Baron and Martin, B., were of opinion that the case of Ex parte Cockburn was in point, he was willing that that case should be taken as decisive of the present, and the defendant left to take the case to a court of error, if he thought proper. His Lordship added, that he did not himself wish to examine narrowly whether Ex parte Cockburn was exactly in point, or to express any opinion on the correctness of that decision, which it was unnecessary to do, and might be disrespectful to the Court in which it was pronounced.

POLLOCK, C. B., said, that he submitted with the greater deference to the authority of Ex parte Cockburn, because the Court which had decided the case was a Court which had a peculiar jurisdiction in matters affecting the law of bankruptcy.-Judgment for | the plaintiff.

COURT OF ARCHES.

EDWARDS and MANN v. HATTON.- March 25, and
May 3.

Church rate-Defendant assessed too low- Interest to
oppose-Practice.

In answer to a demand for a church rate, the defendant set out the names of 109 persons in the parish who had been under-rated, amongst whom he included himself, and alleged, that in consequence thereof, the rate was unequal and invalid. On the part of the churchwardens, it was contended that, as the defendant admitted he was under-rated, he could not be aggrieved by the rate laid, and therefore he was not in a position to question its legality-Held, that the objection could not be taken on the admission of the defendant's allegation; but that if, at the hearing, on a review of all the facts, it should appear that, although the assessment for the rate was erroneous, the party proceeded against was not aggrieved, the Court might in his particular case refuse to pronounce against the rate.

This was a cause of subtraction of church rate, brought by William Edwards and John Mann, the churchwardens of Mattishall, Norfolk, against Jonathan Hatton, of the same parish, farmer, and instituted under letters of request from the Consistorial Court of Norwich. The libel pleaded, that at a vestry held on or about the 10th September, 1863, for the said parish, a rate of one penny in the pound was duly made on all properties in the said parish so rateable, or on all the inhabitants of the said parish, and others

is not aggrieved by this church rate. The answer t that argument is, that it matters not whether he per sonally is aggrieved or not; the church rate is shewn t be unequal, and, therefore, cannot be enforced; an it is further said, that the Court has adopted and a quiesced in this argument in former cases. Now, her I must observe, that I verily believe, whatever migh have fallen from the Court in preceding cases, nothin ever was said or was properly applicable to such case as this, namely, a case where the defendant him self alleged he was rated below the real value of h property. Indeed, such a case not having actually curred, the observation would have been pertiner only to a suppositious case. In Medland and Bron v. Paine (4 Jur., N. S., 1283), however, the Court di say, that "It must not be supposed that in this mod of considering the question that Court can look on to the amount of the rate for which a party may sued, or how little such an individual may be person ally affected. It must see how such an objection a fects the rate itself, not an individual ratepayer." the rate is proved to be itself erroneous in the ma of rating, that is to say, if some properties are charge too much, and some too little, and that to a seri extent, the probability is, that the party proceede against is not fairly assessed to the rate in questi although this result may not be at first apparent! if when the cause comes on for hearing, it she clearly appear that although the assessment of the ra was erroneous, the party proceeded against was n aggrieved, the Court has never said that it will, in h individual case, pronounce against the rate. That is question still left open. So in this particular case, t Court will not, before the hearing, decide whether t party proceeded against is aggrieved or not. It most probable that he is, but the conclusion must d

so rateable in respect to such properties. That prior to and at the time of the making of the rate, Jonathan Hatton did, as he now does, hold, occupy, possess, or enjoy a farm, &c., of the annual rateable value of 807. 18., situate in Norwich-road, in the said parish, for or in respect of which he was rightly and equally rated and assessed in the rate aforesaid at the sum of 68. 8d. The allegation brought in on behalf of the defendant in the third paragraph stated-"That certain lands and other properties mentioned in and assessed to the pretended rate in question, are let to the occupier thereof at annual sums greatly exceeding the amounts or sums set down in the assessment to the said pretended rate as the rental or annual value thereof respectively, and that the entries thereof, under the head 'rental or annual value of the property,' are generally and throughout grossly inaccurate, and entirely disproportionate to the real rental or annual value of the properties against which the same are placed respectively, and that the amounts at which the properties are assessed therein at the rateable value, under the head, amount at which property is as sessed,' are less than the sums at which the same would rateably let, after deducting all the usual tenant's rates, and less the tithe commutation rentcharge, and the cost of repairs necessary to maintain them in a state to command such a rent." A list of 109 properties under-rated is then given, the 45th of which is described as follows:-" A farm in Norwichroad, in the occupation of Jonathan Hatton, which is numbered 127 in the said rate, and is assessed at the sum of 801. 1s., is of the annual rateable value of 1017. 158., which is the sum at which it is assessed under the new valuation." The fourth paragraph of the allegation further stated, that on several other properties in the parish the rate had been made on the rack rental or annual value, or nearly so, or on a ren-pend upon a review of all the facts. Until that r tal exceeding the rack rental, and it set out such properties. The whole amount required to be raised by rate was 121. 7s. 6d.

Swabey opposed the admission of the defendant's allegation. There is no averment in the allegation that the defendant has suffered any injustice under the assessment. The only injury he complains of is, that he ought to have paid more. He has no interest to dispute the rate. [He cited Watney v. Lambert and Simpson (4 Hagg. Eccl. 87, 88) and White and Jackson v. Beard (2 Curt. 500).]

Deane, Q. C., and Tristram, for the defendant.-It is not necessary that the party who opposes the rate should shew that any injury has been done to himself; it is sufficient that he proves generally an inequality in the assessment. Otherwise, the churchwardens might select an individual who happened not to be overcharged, and in proceeding against him establish an illegal rate against the whole parish.

Dr. LUSHINGTON.-This was a cause of church rate brought by the churchwardens of the parish of Mattishall, Norfolk, against Jonathan Hatton, an inhabitant of that parish. The libel was in the ordinary form, and a very long responsive allegation has been given in on the part of Mr. Hatton. That allegation states very many instances in which, as it alleges, the rate is unequal and unjust. Instances where the various properties have been unduly assessed, either at too high or too low a rate; but the peculiarity of the allegation is, it is therein pleaded that Hatton, the party proceeded against, is assessed to the church rate at a value much less than he ought in fairness to be assessed. I say this is a peculiarity; to the best of my knowledge and belief no similar averment is to be found in any of the preceding church rate cases. The churchwardens oppose this allegation, and they contend that, according to Mr. Hatton's own shewing, he

view is made, the Court cannot safely say, that, becau an individual is not charged to the full amount fair valuation, therefore he is not charged excessivel for it is manifest that others may be so much und charged as to make the rate unjust and unequali wards him. Under these circumstances, I do not thi I shall be justified in rejecting the allegation.

CROWN CASES RESERVED. COURT OF CRIMINAL APPEAL EASTER TERM.

[Before ERLE, C. J., CHANNELL, B., and BLACKBU MELLOR, and SMITH, JJ.]

REG. v. PATRICK JOYCE.-April 29. Forgery-Undertaking for payment of money-24 Vict. c. 98, s. 23.

In order to obtain the appointment of agent to an surance company, the prisoner sent to the director document in the following terms:-" In considerat your appointing Mr. Patrick Joyce, of &c., as ag your company, I do hereby guarantee you against loss, &c. which you may incur by reason of his cul negligence or dishonesty in such situation, to the te 201. sterling, &c. Signed, Christopher M'Contil!. ness, John Noonan." The signatures to the do were forgeries:-Held, that it was an undertaking the payment of money, within stat. 24 & 25 Vict.c 8. 23.

Case.-" Patrick Joyce was tried before me. sitting as commissioner of assize at Manchester, in month of March, 1865, upon an indictment w charged him with forging, and also with uttering

I am of opinion, therefore, that there was an agree-chased under the powers of the Holborn Valley Im ment binding on Mr. Gray, which is sufficiently evidenced by that letter of Mr. Brice, the authorised agent; and, consequently, that the conclusion of the Vice-Chancellor was quite right, and that the decree ought to be affirmed. I dismiss the petition of appeal, with costs.

Kay, for the defendants, opposed.

Sir J. L. KNIGHT BRUCE, L. J., had proposed to send for the briefs given to counsel, in order to enable the Court to form an opinion on the subject, but deferred to Lord Justice Turner.

Sir G. J. TURNER, L. J., said that if this Court was to be called upon to adjudicate as to counsel's fees, and as to whether they were to be ten, fifteen, or twenty guineas, the litigation and consequent injury to the snitors would be infinite, and there would be no end to the questions. It must be left to the discretion of the Taxing Master, who had already adjudicated on the matter, and this motion must be refused, with costs. Note for reference-Morg. & Dav. Costs, 351.

ROLLS COURT.

RIDLEY V. RIDLEY.-March 7 and 9, and April 21. Statute of Frauds-Promise to leave a sum by will

Parol promise-Consideration.

In consideration of the plaintiffs agreeing to execute a conveyance of certain property, part of their father's estate, to a purchaser, A. verbally promised to leave them as much as they would get under their father's will:-Held, that the case did not come within the 4th section of the Statute of Frauds, and that A.'s estate was bound to make good the promise.

indenture was made between the three executors of George Ridley, of the first part; the widow of George Ridley, of the second part; his six children, of whom four were stated to be infants, of the third part; Edward Ridley, the purchaser, of the fourth part; and George Potts, a trustee for him, of the fifth part. It recited the title of George Ridley, his will, and his death, the state of his family, and the mortgages affecting the property; it recited that the two plaintiffs, Elizabeth Ridley and Edward William Ridley, who had attained the age of twenty-one, were convinced it would be beneficial to the children of George Ridley if his real estate were immediately sold; it recited the contract of sale to Edward Ridley, at the price to be fixed by two valuers; it recited that the valuers had fixed the price at 73017., free from incumbrances, or 33017. for the equity of redemption, subject to the payment of two mortgages of 1500l. and 25007. affecting the same; it recited that the widow and the daughter and son, who had attained twenty-one, had undertaken that the remaining children should execute the deed within one month after their severally that the widow and the two adult children had preattaining their respective ages of twenty-one years; vailed on the executors of the will to concur in this stone estate to Edward Ridley in fee, upon payment sale; and the deed then proceeded to convey the Hopof the sum of 33011. for the equity of redemption, and on his entering into a covenant to pay the two mortgages affecting the property.

A. was both trustee under the will of the father, and also interested as a partner of the purchaser:-Held, that deed was executed by the adult parties to it, Edward In June, 1847, being the date when, in fact, this there was sufficient consideration to support the pur-Ridley, the purchaser, was admitted to the copyhold

chase.

Motion for decree.—This suit was instituted by the widow and children of George Ridley, deceased, to obtain from the estate of Samuel Ridley, also deceased, compensation in satisfaction of a promise alleged to have been made by Samuel Ridley, to leave by his will to the children of George Ridley so much as they would get under the will of their father, provided they would concur in conveying a copyhold estate at Hopstone, part of the property of their late father, to Edward Ridley, the brother and partner of Samuel Ridley. Two questions were raised, one of fact, and another of law. The first question was, whether, in fact, any such promise was made; and the second question was, assuming such promise to have been made, whether this Court could, in the circumstances of the case, enforce the specific performance of it.

George Ridley, the father of the plaintiffs, by his will, dated the 18th September, 1844, appointed his brother Samuel Ridley, his widow Mary Muchall Ridley, and her brother Thomas Eaton Lander, executors. He left all his property to his executors, in trust for the sole use of his widow during her widowhood; and upon her death or marriage, the whole income was to be applied for the joint benefit of his children until the youngest attained twenty-one; and then the whole property was to be equally divided between them. He died in August, 1846, and all the executors proved

the will.

George Ridley left six children, of whom five were infants at the time of his death, two have since died. The four surviving children, and the husband of one of them, were co-plaintiffs with their mother.

George Ridley's personal estate was small; his debts were considerable; and the principal property he had consisted of the copyhold estate at Hopstone, held of the manor of Claverley, in Shropshire, and which was mortgaged to the extent of 4000l. This estate was conveyed to Edward Ridley for the sum of 73017., by an indenture, bearing date the 25th March, 1847. This

estate. At this time he was the partner of Samuel Ridley; they lived together; they carried on business together; they kept no accounts; Samuel Ridley was unmarried, and Edward had a wife and family. Edward Ridley made his will in October, 1852, by which he left the Hopstone property to Samuel Ridley for life, then to his own widow for life, and after her decease, to his children successively in tail. He died in the same month of October.

The plaintiff George Ridley attained twenty-one, and executed the deed in 1848. Mary Helen Ridley attained twenty-one, and executed the deed in February, 1853; she died shortly afterwards, intestate, and without issue. The plaintiff Harriette Anne Mavins attained twenty-one in 1855, and executed the deed in June, 1856. John Ridley attained twentyone in November, 1857; he afterwards executed the deed and has since died, namely, on the 23rd November, 1861.

The plaintiffs alleged that each of the executions of the deed in question was obtained by repeated assurances on the part of Samuel Ridley that he would fulfil his promise to leave each child of George Ridley the amount to be obtained from their father's estate. Samuel Ridley made three wills; the first on the 8th December, 1852, five years after the execution of the deed in question, and one month after the death of Edward Ridley, the purchaser of the Hopstone estate. By this he gave 11007. among the children of George Ridley in the following proportions-namely, 3007. to each of the plaintiffs, Edward and George; 2007. to Elizabeth Frances, and 100l. to each of the three remaining children. Afterwards, by codicil, he revoked these legacies as regarded the infant children in case they should refuse to execute the deed in question.

In June, 1857, he made a second will. At this time Mary Helen had died, and the number of George's children was reduced to five. By this will he gave 300l. to Edward William Ridley, and 2007. to each of the other four children, amounting in the whole to 11007. On the 22nd May, 1858, he made a third will,