remedy of the creditor is defeated or delayed by the But then the question arises, what is the property which actually passed to the trustees of the settlement under the assignment made by the debtor. At the time of the marriage of the defendants Mr. and Mrs. Willows, Mrs. Willows, then Elizabeth Story, widow, was possessed of a sum of 40001., secured on mortgage of real estates, and also of some other personal property. By a settlement made previously to the marriage, the mortgage debt of 4000l. was assigned to trustees, and it was declared that they should stand possessed of one moiety of this sum upon trusts which were, in effect, for the separate use of Mrs. Willows during her life, and after her decease for the children of the intended marriage; and in case there should be no children, upon trust for the sister, brother, and certain nephews and nieces of Mrs. Willows absolutely. And as to the other moiety of the said mortgage debt or sum of 40004, it was declared that the same should not be in any way subject to the trusts of the marriage settlement, but should, while the same remained on the existing security, be held by the trustees in trust only for the said Elizabeth Story, her executors, administrators, and assigns, and, when realised, be paid over to her and them in the same manner as she or they would have been entitled to receive the same in case the assignment and marriage settlement had not been executed. On this the first argument was, that the word "only" created a separate use in Mrs. Willows. No such conclusion can be maintained. For separate use there must be words referring to the event of marriage, and creating a separate character, or directing an exclusive enjoyment. The last words of the clause are conclusive. The last-mentioned sum of 2000, is the subject of the voluntary settlement made by the defendants Willows and wife, by an indentare, dated the 15th November, 1861, and which is fully and correctly set forth in the 12th paragraph of the amended bill. The defendants contend, that if this deed be set aside, Mrs. Willows has an equity to have an additional settlement made out of the 20007., especially as her husband is a bankrupt, and unable to maintain her. At the hearing, I doubted very much whether there was, under the circumstances of this case, any equity in the wife for an additional settlement; but on examination of the decided cases, I find they have gone so far, that I cannot refuse an inquiry whether an additional settlement ought or ought not to be made. It appears to me, therefore, that the decree ought to be thus worded:-Declare, that the deed of the 15th November, 1861, in the pleadings men- Notes for reference-1 Smith's L. C. 20, 5th ed.; Lewin on COURT OF APPEAL IN CHANCERY. STAFFORDSHIRE AND WORCESTERSHIRE CANAL COMPANY . BIRMINGHAM CANAL COMPANY.-Dec. 17, 19, and 20, 1864, and Jan. 20, 1865. Easement-Water-Canal. The waters of Canal S. had for seventy years, whenever the lock at the junction was opened, flowed into Canal B., both canals being made under special acts:-Held, that neither on the construction of the acts and the agreements between the two canal companies, nor by the lapse of time, had Canal B. acquired a right to the water so flowing. Held also, that persons claiming to have acquired rights by prescription in the water of a canal, have to meet the additional difficulty, that these waters have been devoted by the Legislature to a special purpose. This was an appeal by the defendants from a decree of Vice-Chancellor Stuart, who granted an injunction to restrain the defendants from erecting machinery to pump back the water from the lowest level of their canal, and so preventing the water from flowing into the plaintiffs' canal. The facts appear in the judgment of Lord Justice Turner, given below. Vice-Chancellor Stuart, in delivering judgment, said that it was of the essence of the legislative authority given to the defendants, that there should be a communication between the two canals. The level of the defendants' canal, for some distance before it joined the plaintiffs' canal, was such as to make it necessary that the junction should be effected by a series of locks. For more than seventy years, by the ordinary operation of the locks, the plaintiffs had enjoyed the benefit of the flow of a certain quantity of water, which, if the ordinary operation of the locks continued, they would still enjoy. The plaintiffs' case was, that by an enjoyment of more than seventy years, they had acquired such a right to that mode of communication, and to that supply of water, that the defendants could not, in order to improve their own canal, take away from the plaintiffs what they had for so long a time enjoyed. In the case of artificial watercourses, everything depended on the character of the watercourse, and the purpose for which it was made. Both parties here were in the same position, inasmuch as both undertakings were canals; and the same legislative authority governed both canals. The defendants' counsel had argued that, looking at the right in question, it was not of such a nature as to come within the scope of the law of prescription. They had contended, that the defendants were bound to use all the water in their canal for the d 2 purposes of their own undertaking; and that, as the defendants never had any right to grant what the plaintiffs claimed, prescription, which is founded on grant, could not exist in the present case. But the rights of both parties were founded on a legislative contract, which made a great difference between this case and that of private persons. The flow of water received by the plaintiffs, though intermittent, was still a flow. He knew nothing which authorised the argument, that there was no grant, or presumption of a grant, in the present case. The thing in question had been given for seventy years, and it had been given by the defendants. What difference was there upon this point between this and any other case? When the Legislature directed that there should be a junction between the two canals, their respective levels were such as to make it necessary, at that time, that there should be a flow of water; and, therefore, there was a grant. That grant had been enjoyed under legislative authority for more than seventy years; in none of the cases cited were the circumstances the same as in the present case A perpetual injunction must be granted, with the costs. The defendants appealed. Sir R. Palmer, A. G., Craig, and Jolliffe, for the plaintiffs, contended that their right was founded on a parliamentary contract, and relied on the different acts in support of that view, and on a deed of 1771. But, independently of this, they had acquired a right by user, having enjoyed it seventy years. It was true that the watercourse was artificial, but that made no difference (Major v. Chadwick, 11 Ad. & El. 571); and though that rule had been qualified by Wood v. Waud (5 Exch. 748; 13 Jur. 472), when the easement was temporary, that qualification did not apply here. Bacon and Kay, for the defendants, the appellants, contended that there had been no such parliamentary contract. Where the Legislature intended the lower canal to have the water, it made a provision to that effect, as in the 16 Geo. 3, cc. 28, 66. As to prescription, the supply of water was temporary only. (Ellwell v. Birmingham, 3 H. L. C. 812). The defendants were trustees of the canal for the public, and could not make a grant of the water, therefore none such would be presumed against them. (Rochdale Canal Company v. Radcliffe, 18 Q. B. 287). Sir R. Palmer, in reply. THEIR LORDSHIPS reserved judgment. Jan. 20.-Sir J. L. KNIGHT BRUCE, L. J.-This is a case of a dispute between two canal companies as to the power which one of them has to use a portion of the water in a manner to which the other objects. A decree was made at the hearing by one of the ViceChancellors, against which the defendants appeal. Feb. has been used, ought to conclude and to prevent any supposition or presumption of a grant by the defendants, by agreement or contract, as to the use of the water. It seems to me, that the plaintiffs' use of the water ought to be considered as merely permissive, and I find myself unable to concur in the decree. The bill must be dismissed, without costs. Sir G. J. TURNER, L. J.-The plaintiffs in this suit are a canal company incorporated by an act of the 6 Geo. 3, c. 97, by which they were empowered to make a canal from the Severn to the Trent, passing near Wolverhampton, at a place called Autherley. The defendants are another canal company incorporated by an act, the 8 Geo. 3, c. 38, by which they were empowered to make a canal from Birmingham to Autherley, there to join and communicate with the plaintiffs' canal; and by the 84th section of this act, it was enacted, that in case the defendants should not complete the intended navigation so that it might, within six months after it was finished to Birmingham, be made to communicate with the plaintiffs' canal at or near Autherley, it should be lawful for the plaintiffs. and they were thereby empowered, to complete the intended navigation, so as to cause it to communicate with their canal at or near that place, and to do this at the costs of the defendants. The plaintiffs' canal was completed under this act, and the defendants under the powers of their act made their canal to Birmingham, but they did not within the six months mentioned in the act complete it so as to communicate with the plaintiffs' canal. The defendants having thus made default in completing their canal, an agreement for the completion of it was come to between the plaintiffs and the defendants, which agreement was embodied in a deed, dated the 2nd March, 1771. Under the provisions of this deed the defendants' canal was completed, so as to join the plaintiffs' canal at Autherley, and after the defendants' canal had been thus completed, several other acts were passed for making other canals in communication with it. Ultimately, all the acts relating to the defendants' canal and the canals connected with it were consolidated by an act of the 5 Will. 4, c. 34. The highest level of the defendants' canal is called the Wolverhampton Level, which is 130 feet and upwards above the level of the canal at Autherley, which is the lowest level of their canal; and the junction between the defendants' canal and the plaintiffs' canal is formed by a series of locks, by means of which the canal boats are enabled to pass from one level to the other. There were originally twenty of these locks, but, subsequently, in or about the year 1791, another lock was added. The lowest of the above-mentioned The defendants' ground for dissatisfaction is this- locks, that which is nearest to the plaintiffs' canal. that, as they say the alleged right can exist only by opens into a cut or basin about twenty-five yards in force of some statute or statutes, or under some length, which leads into the plaintiffs' canal, and is on grant or contract, and, as the defendants say, there a level with it, and, of course, whenever this lowest has not been any such act, grant, or contract. If they lock is opened for the passage of an ascending or de are right, the appeal is well founded, and my opinion scending boat, a lockful of water passes from the de is, that the appeal ought to be taken to be well founded. fendants' into the plaintiffs' canal. At the time wher I cannot perceive any mode in which the plain- the bill in this cause was filed, the defendants were tiffs allege the right to have arisen; and as to the proceeding to erect pumping engines and other works statutes, it appears to me, that neither by the sec- for the purpose of pumping back the water from thei tion of the said acts relied upon, nor by any other, lowest lock when full to their Wolverhampton level has the right been conferred. Then, as to the and thus materially diminishing the quantity of water ground of contract, no deed or document has been which, upon the lock being opened, would flow inte produced, nor has any document been shewn to have the plaintiffs' canal; and the bill in this cause is filed been lost or mislaid; and, upon reflection, I have for an injunction to prevent the defendants from st arrived at the conclusion, that though the length of pumping back the water. The bill alleges that the time during which the water has been allowed to flow plaintiffs' consent was asked and obtained to the in this manner is very considerable, yet the nature making of the additional lock, which was made in o and character of the respective rights of the plaintiffs about the year 1791, and which was so made as to di and defendants, and the manner in which the waterminish the quantity of water flowing from the defend Feb. 4, 1863 ants' canal into the plaintiffs' canal upon the opening of the lowest lock, but it is denied by the defendants that any such consent was asked or obtained, and the plaintiffs have given no evidence in support of their allegation on this point. There is not, as it seems to me, any other fact in dispute between the parties which is material to the case. At the hearing of the cause, Sir J. Stuart, V. C., made a decree in conformity with the prayer of the bill; from which this appeal has been brought. culty arising from the special purpose for which the water has been collected, but the difficulty arising from the waters having been devoted by the Legislature to that special purpose. It is not so in the other cases, so far as respects artificial waters of an ordinary character; the law appears now to be settled, that the purpose for which the waters have been collected is to be regarded in determining whether rights or interests have been, or can be, acquired in them by other persons than those who collected them; and this rule must, as it seems to me, apply, with still greater force, to the waters of canals. On general principles, therefore, I should feel great difficulty in holding that the plaintiff's can in this cause have acquired any such right as has been contended for on their behalf; but the case is, I think, stronger against the plaintiffs when the acts for making the defendants' canals are considered. His Lordship then commented on the terms of the acts, as shewing that the defendants were to have absolute control over the water, and on a special provision for payment of damages to the plaintiffs if the water was drawn below the level of three feet. The plaintiffs also relied on the clauses enabling the defendants to construct parallel locks for saving the water; but those clauses were necessary in order to give the defendants power to take the land required. His Lordship shewed that the other clauses of the act did not prevent these works, and that the stat. 2 & 3 Will. 4, c. 71, did not help the plaintiff's; and finally gave it as his opinion, that the bill ought to have been dismissed, with costs; but as the Lord Justice thought differently, it would be without costs. No costs of the appeal. It was argued for the plaintiffs, in support of the decree-first, that it ought to be concluded, upon the facts of the case, that there was a contract between the plaintiffs and defendants, that the plaintiffs should have the benefit of the water coming down into their canal by the locks from the Wolverhampton level; and, secondly, that whether there was such a contract or not, the plaintiffs had, by length of time and of enjoyment, acquired a right to the water so coming down. As to the first point, it was not pretended, on the part of the plaintiffs, that any express contract to the effect contended for could be shewn, but it was insisted that such a contract ought to be implied or presumed that the act for making the defendants' canal plainly contemplated that the communication between the two canals would be made by locks, and, as a consequence, that the water from the defendants' canal would flow into the plaintiffs' canal; that the deed of the 2nd March, 1771, must be taken to have proceeded upon this footing; and that the canal, baving been completed under the agreement contained in that deed, by locks which gave the plaintiff's the benefit of the water passing through them, the defendants were not at liberty afterwards to defeat the agreement, by depriving the plaintiffs of that benefit. But, with reference to these agreements, so far as they are founded on the act, the question we have to consider seems to me to be not what may have been contemplated at the time when the act was passed, but whether it was intended that what may then have Principal and agent-Bailee of spurious goods-Jurisbeen contemplated should remain for ever unchanged; and the act does not seem to me to furnish any ground whatsoever for supposing this to have been the case; and, with reference to the arguments, so far as they are founded on the agreement contained in the deed, I think that the deed wholly fails to support them. [His Lordship then read the deed, and came to the conclusion, that both the terms in which it was expressed, and the circumstances which led to it, limited its operation to the completion of the canal.] In my opinion, therefore, the plaintiffs' case, so far as it rests upon contract, wholly fails. It is hardly necessary to add, that the fact of the additional lock having been made by the defendants, as above mentioned, tends strongly to confirm this view. Then, secondly, as to the plaintiffs' claim to have acquired a right to the water passing through the locks by length of time and enjoyment. The first duty of a canal company is to keep open its canal. This is a duty which is imposed by the Legislature, and which every such company owes to the public. The water of the canal furnishes the means, and the only means, by which this duty can be discharged. When, therefore, the Legislature imposed this duty upon a company, it must, as I apprehend, at least primâ facie, be taken to intend that the power and control over the waters of the canal should be vested in the company. The waters of a canal, therefore, so far as respects the capacity of other persons to acquire a right and interest in them, stands upon a different footing, both from waters flowing in their natural course and from artificial waters of an ordinary character. In the case of the waters of canals, persons claiming to have acquired rights in them have to meet, not only the diffi Notes for reference-Phear on Water, 39-41; Gale on Easements, 263. HUNT v. MANIERE.-Jan. 28. diction-Injunction. This was an appeal from an order of the Master of the Rolls granting an injunction to restrain the defendant from proceeding at law to recover the amount which he had advanced on the security of some wine warrants; the defendants having refused to deliver the wine, because they had received notice that an injunction had been applied for to restrain them from doing so. The case is reported ante, p. 28. Hobhouse and Lovell, for the defendant, now moved, by way of appeal, to dissolve the injunction. Selwyn and Howard, for the plaintiffs. Sir J. L. KNIGHT BRUCE, L. J., said, that this injunction had better be continued until the hearing. The cause of Ponsardin v. Stear, in which the injunction on the plaintiffs was obtained, would be heard at the same time, and the whole matter, including the costs, would be disposed of. Sir G. J. TURNER, L. J., concurred. Note for reference-Eden on Inj. 67, 343. ROLLS COURT. Practice-Absconding defendant-Taking bill pro con- Where appearance had been entered for a defendant, and he could not be served with interrogatories, an order was made under Consolidated Order 22, rule 4, to take the bill pro confesso, without requiring the interrogatories to be advertised. See Anon. (4 Jur., N. S., 583). 4 The defendant William Cowper having absconded | balances which should be reported due from him in to avoid service of process, an order was made under passing his accounts, in repect of the descended freeConsolidated Order 10, rule 6, that he should appear hold estates, as follows:-4-30th parts thereof to before the 9th April, 1864. The defendant did not William Stourton and Sarah Sophia Ann, his wife; enter an appearance, and the Court, on the 14th April, 16-30th parts thereof to the petitioner William Cross; 1864, gave leave to the plaintiff to enter an appear- and 10-30th parts thereof to the petitioner John Eden. ance for him, which was accordingly done. On the 27th July, 1863, it was ordered, that the receiver Alfred Tyrrell should bring in his account, and that the balance which should be found due from him, should be apportioned and paid in the manner directed by the order dated the 10th May, 1854, as varied by the order dated the 22nd March, 1862. Interrogatories were filed in due time, but could not be served upon the defendant. Notice of motion to take the bill pro confesso was inserted in the London Gazette (Cons. Ord. 22, rule 4); and on the 14th July, 1864, the plaintiff obtained an order to take the bill pro confesso against the defendant, in pursuance of the above order. The registrar declined to pass this order. The following is a minute of the record assigned by him: "The defendant was not shewn to be in default for want of an answer; in fact, he was not in default, never having been served with the interrogatories. Consolidated Order 22, rule 2, provided, that when a defendant did not "put in his answer in due time after appearance, &c., he should be deemed to have absconded." There would be no "due time" to answer till after service of the interrogatories. The case of Butler v. Matthews (19 Beav. 549) might seem to be in point, but then the defendant was clearly not in default a fact which seemed to have been overlooked, the attention of the Court being directed only to the question of issuing an attachment. In the cases there cited the defendant had, no doubt, been served with a subpoena to appear, and answer, under the old practice, and was in default. The difficulty occurring in the present case had been provided for in Anon. (4 Jur., N. S., 583), by directing the interest to be advertised; and that case had, as the registrar understood, been subsequently followed. Speed, for the plaintiff, asked that the order to take the bill pro confesso might be passed. He referred to the cases of Butler v. Matthews (19 Beav. 549) and Wilkins v. Hogg (30 L. J., Ch., 492), in which the order had been made without requiring the interrogatories to be advertised. Sir J. ROMILLY, M. R., directed the order to be passed. Note for reference-Morg. Ch. Ord. 400. WHITEHEAD. LYNES.-Dec. 20, 1864, and Jan. 11, 1865. order-Illegal process-Damages. A four-day order is the proper remedy against a re ceiver. Where a writ of fi. fa. had been wrongly issued against a receiver, the Court, following Arrowsmith v. Hill (2 Ph. 609), directed an action at law to be tried to assess the damages sustained by the receiver. On the 11th March, 1864, an order was made for payment, as therein mentioned, of Mrs. Stourton's share of the moneys which should be certified by the chief clerk. On the 13th April, 1864, the chief clerk made his certificate, and thereby found that the sum of 7301. 168. 4d., which had arisen from the rents and profits of the descended freehold estates, was to be paid and applied by the receiver in the manner directed by the orders of the 22nd March, 1862, and the 11th March, 1864. In pursuance of this order the moneys were duly applied, except as to the portion of the rents which, by the order of the 22nd March, 1862, were to be paid to Cross and Eden. Cross had gone to India to reside, and Eden had gone to reside at Cape Town; and the receiver handed over the moneys payable to them to his solicitors, Messrs. Torr, Janeway, & Co., to be paid by them to such persons as could give a valid discharge. Prior to the order of the 13th April, 1864, namely, on the 10th February, notice was given to Messrs. Torr & Co., as the solicitors of the receiver, on behalf of James Dickinson, not to pay the money in their hands to Cross and Eden; and prior to the 27th April, a petition to stay the payments to Cross and Eden was made on behalf of Dickinson and others, and subsequently three bills were filed for the same purpose. The petition was answered for the 27th April, when it stood over, and a counter petition was presented by Cross and Eden, praying that, in pursuance of the said orders, the receiver might be ordered to pay the balances due to them. The petition was answered for the 7th May. Both petitions were still pending, and no order had been made upon them. but No application was made on behalf of Cross and Eden to Messrs. Torr & Co., for the payment of the balances due to them; but, on the 16th September Mr. Burrell, as their solicitor, issued two writs of fi. fa. against the receiver. Execution was lodged the same day at his place of business, and also at his first resi dence. On application to the chief clerk of the vacation judge, the writs were set aside as irregular; he was of opinion, that, as no injunction had been obAdjourned summons.-This was an application on tained, the receiver could not withhold payment of the behalf of Alfred Tyrrell, the receiver in the cause, money to Cross and Eden, on Mr. Burrell producing a that an inquiry might be directed to assess the da- proper authority. On the following day the money mages which the said receiver had sustained by the was paid to him on production of a power of attorney. wrongful issue and execution of two writs of fi. fa. out The matter was afterwards brought before his Honor of this court against the effects of the said Alfred in chambers, when he confirmed the order of the chief Tyrrell, in his character of receiver, on the 16th Sep-clerk of the vacation judge, and the present sumtember, 1864, and that William Cross and John Eden, in whose names such writs were isued by Edward Burrell, as their solicitor, and the said Edward Burrell, or some or one of them, might be ordered, within one week from the date of the certificate to be made under such inquiry, to pay to the said Alfred Tyrrell the amount which should be so assessed. By an order, dated the 22nd March, 1862, varying an order of the 10th May, 1854, it was ordered, that the receiver appointed in the cause should pay the mons for assessment of the damages was adjourned into court. His Honor had expressed in chambers his opinion that the course adopted in issuing the fi. fa.., as unlawful, and that the four-day order is the proper remedy against the receiver. Baggallay, Q. C., and Hardy, for the receiver, cited Sowell v. Champion (6 Ad. & El. 407); Rollin v. Stewart (2 Weekly Rep. 467); Barker v. Braham (3 Wils. 368); Bates v. Pilling (6 B. & Cr. 38); Frowd v. Laurence (1 J. & W. 655); Bailey v. Devereux (1 Vern, 4 269); May v. Hook (Dick. 619); and 1 Dan. Ch. Prac. the money might be paid. It is not fit for me, nor is 361. Selryn, Q. C., for Cross and Eden. Hobhouse, Q. C., and Hemmings, for Burrell, cited Cohen v. Morgan (6 D. & Ry. 8) and Carratt v. Morley (1 Q. B. 19). Baggallay, in reply, referred to Arrowsmith v. Hill (2 Ph. 609). Sir J. ROMILLY, M. R.-There are two questions to be considered upon this motion. The first is, whether the writ of fi. fa. was issued properly or improperly; and the second is, if it did issue improperly, what are the consequences of it. Now, the first question, whether the writ issued properly or not, divides itself into two questions; one is, whether it was a proper process against a receiver of this court; and another is, whether, having regard to the peculiar circumstances of this case, even if it were a proper process against a receiver, it was proper to have it sued out upon the present occasion. I am of opinion, on both these points, that Messrs. Cross and Eden have acted erroneously. In the first place, I think that the writ of fi. fa. ought not to have issued against the receiver, who is the officer of the court, at all; but that a four-day order was the proper order to have obtained against him; and that the practice of obtaining a four-day order against the receiver is not superseded, by the fact of the Court having allowed, and having by the General Orders given, a power of issuing a writ of fi. fa. However, that question has not been very fully argued before me. It was stated to me in chambers, and I expressed my opinion to that effect. But even if my opinion upon that were wrong, I am of opinion that it ought not to have been issued in this case. it the proper time for me, to go into the question as to the propriety of these petitions, or what order I should make upon them. It may be, as Mr. Selwyn and Mr. Hobhouse say, that I could not make any order upon the petition to impound the fund, or order the fund, upon the petition of Messrs. Eden and Cross, to be paid to them. However, no step was taken against the receiver at all; the money was allowed to remain in his hands; it was not asked that it should be paid into court; and the receiver, having notice of all these proceedings, supposed, which he was reasonably entitled to suppose, that the Court would determine upon these petitions, whether he was to pay the money, and in what form. In that state of things, the matter is allowed to go on. The petitions are not heard, neither party bringing them before the Court, and then, in that state of things, one of the persons who has presented a petition (assuming, therefore, that the four-days' order was not the proper proceeding) goes to the office of the Clerk of Records and Writs, and obtains a fi. fa. against the receiver, and gives the receiver no notice of his intention to do so. The writ is issued on the 16th September. On the same day Messrs. Eden and Cross, by their solicitors, apply for payment of the money, and upon refusal they issue the fi. fa., and put the sheriff in possession of the receiver's goods. It is impossible to state these facts without seeing that that is a very violent proceeding; and if the party were entitled to the fi. fa., why did they not obtain it in the month of April, May, or June? Why did he not bring on his petition, or apply for the four-day order? Why did he not submit the whole question The circumstances of the case are very peculiar. to the jurisdiction and consideration of the Court? In the first place, an order is made in March, 1862, by On the contrary, in the middle of the Long Vacation, which the receiver is ordered to pay 4-30ths of cer- on the 16th September, he obtained, really ex parte, a tain funds to Mrs. Stourton and her husband; 15- writ of fi. fa., upon which he put the sheriff in possession. 30ths to Mr. Cross; and the remaining 11-30ths to I have not the slightest hesitation that, upon the case Mr. Eden. In the month of April of the present year, coming before me, the writ of fi. fa. would be set aside, the chief clerk granted a certificate, stating that there and that the person who obtained it must pay all the being between 8007. and 9007. in the hands of the re- costs. The person who obtains it obtains it at his ceiver, which was property divisible, thereupon an ap- own risk and peril, and he must take the consequences plication was made by the lady who was entitled to of his having so applied for it; and it is the bounden 4-30ths, and she obtained her share. Properly speak-duty of this Court to put the parties exactly in the ing, the course to have been adopted in such a case was similar to that which would be adopted if the money were in the hands of the Accountant-General. The Accountant-General would not act upon an order, unless it specified the exact amount to be paid under the order; and that would be the usual course with respect to receivers. However, the receiver would have been quite justified (if no step had been taken to prevent it) in paying the money according to the order of March, 1862, and in the proportions there stated. Accordingly, the receiver's solicitor, Mr. Janeway, informed the parties that he should do so, unless the matter was stopped. What did Messrs. Eden and Cross do? There was one course, a very simple one, open to them, namely, to apply for a four-day order. This took place in April, and there was plenty of time to do so before the Court rose; but in the meantime, and before anything is done by them, three persons make a claim, and they present a petition, asking that the money be impounded in the meantime, until their rights are determined. A petition is also presented by Messrs. Eden and Cross, praying that the money may be paid to them. It is true, that the petition involved other things, namely, a question as to the capital; but I am now only dealing with the income. These petitions pray, as to one, that the money might be impounded; and as to the other, that same situation as if the writ never had been obtained; and that is the duty which the Court has to perform on an occasion of this nature. It is said that this order of the 24th September was in the way of compromise, and by the free will of the receiver. In the first place, the alleged compromise is between the receiver and the person who obtained the fi. fa., when the sheriff is actually in possession of his goods, and then he is told it is of his own free will, and in order to free himself from this, of his own free will, that he consents to pay the money. That is a species of free will which is exceedingly like coercion, when the consequence of his not adopting it, and having his own free will, is to pay the money which he admits is not his own, and with which he has nothing to do. The consequence of not paying the money will be, that all his goods will be sold, besides the injury done to himself, and the discredit brought upon him in the neighbourhood, he being a person of respectability, which I assume the receiver to be, and he is told that this is a transaction which takes place by arrangement and free will between the parties, and that it is a compromise, and that the order ought to be set aside. I do not set it aside at all. If the matter had been brought before me, and if it had been possible to bring it before me, and I had been sitting in the vacation, I should simply have discharged the writ of fia. fa., with costs. That would |