called The City of London Loan Society, the rules and regulations of which said society were, previously to the making of the promissory note thereinafter mentioned, duly certified, deposited, and inrolled, pursuant to the provisions of the statute in that behalf made and provided. The declaration (filed the 25th October 1841), then stated: That on the 22d of April 1840, the defendant made his promissory note in writing, and thereby promised to pay to the treasurer of the society 51., for value received, by weekly payments of 2s. each; that the defendant then delivered the said promissory note to the said society, and agreed with the said society to pay them the same, according to the tenor and effect thereof; and the plaintiffs, suing as such trustees as aforesaid, averred, that although the time for payment of the whole of the said sum of 51. had elapsed, and the said note had become due and payable long before the commencement of the suit, yet the defendant had not paid the amount of the said note, or any part thereof; whereby, &c.

Demurrer; and joinder.

The causes of demurrer were stated to be, that the plaintiffs were not enabled to sue or maintain the action as trustees of the society, called The City of London Loan Society, upon the promissory note mentioned and set forth in the declaration in the cause, by the provisions of the statute 5 & 6 W. 4, c. 23, or of any other act relating to loan societies.

[422] Bompas Serjt. in support of the demurrer. The question in this case is, whether, upon the proper construction of the statute 5 & 6 W. 4, c. 23, the plaintiffs, as trustees of a loan society, were not bound to proceed against the defendant for the debt, which is the ground of the present action, in the manner pointed out by the eighth section of the act (vide infra, p. 423), instead of suing him in a superior court. The recital to that act (b) shews, that it was intended for the benefit of the labouring classes. By the fourth section (c), the property of the [423] society is vested in the trustees thereof, and all actions and other proceedings are to be conducted in their name. By the seventh section, no note or security for the repayment of any loan made under the act, is to be liable to stamp duty; and by sect. 8 (a), all such notes,

(b) "Whereas certain institutions for establishing loan funds have been, and may be, established in England, &c., for the benefit and advantage of the labouring classes of His Majesty's subjects, and it is expedient to give protection to the funds of such institutions, and to afford encouragement to the formation of other institutions of a like kind, &c."

(c) Sect. 4 enacts, "that all moneys, goods, chattels and effects whatsoever shall be vested in the trustee or trustees of such institution for the time being, for the use and benefit of such institution and the respective members thereof, their respective executors and administrators, according to their respective claims and interest; and, after the death, resignation or removal of any trustee or trustees, shall vest in the succeeding trustee or trustees for the same estate and interest as the former trustee or trustees had therein, and subject to the same trusts, without any assignment or conveyance whatever; and also shall for all purposes of action or suit, as well criminal as civil, in law or in equity, in any wise touching or concerning the same, be deemed and taken to be and shall in every such proceeding (where necessary) be stated to be the property of the person or persons appointed to the office of trustee or trustees of such institution for the time being, in his or their proper name or names, without further description; and such person or persons shall and they are hereby respectively authorized to bring or defend, or cause to be brought or defended, any action, suit or prosecution, criminal as well as civil, in law or equity, touching or concerning the property, right, or claim aforesaid of such institution, and to sue and be sued, plead and be impleaded, in his or their proper name or names, as trustee or trustees of such institution, without other description; and no suit, action or prosecution shall be discontinued or abate by the death of such person or persons, or his or their removal from the office of trustee or trustees as aforesaid, but the same shall and may be proceeded in by the succeeding trustee or trustees in the proper name or names of such person or persons commencing the same, any law, usage or custom to the contrary notwithstanding; and such succeeding trustee or trustees shall pay or receive like costs as if the action or suit had been commenced in his or their name or names for the benefit of, or to be reimbursed from, the funds of such institution."

(a) Sect. 8 enacts, "that all notes and securities entered into for the payment of

&c., are to be made payable to the treasurer or [424] clerk of the institution; and in default of payment after demand, it is expressly enacted, that a justice of the peace may summon the party making default, and award payment to the treasurer, which may be enforced by distress. The subsequent statute, 3 & 4 Vict. c. 110, was passed after the making of the note on which this action is brought (a); but having the same object in view as, and being in pari materiâ with, the 5 & 6 W. 4, c. 23, the two acts may be considered in conjunction. The 5 & 6 W. 4, c. 23, is repealed by the 3 & 4 Vict. c. 110, which, however, enacts, that the provisions of the former statute shall be in force for the recovery of all sums lent previously to the passing of the 3 & 4 Viet. c. 110. The sixteenth section is similar to the eighth section of the 5 & 6 W. 4, c. 23; and the seventeenth section (b) enacts, that notwithstanding these provisions, the treasurer or clerk may proceed to enforce payment of a note in any county court, or court of requests, where the amount is within their jurisdiction. This shews that the legislature considered that, by the former act, the jurisdiction of the courts at Westminster had been taken away. [Tindal C. J. The general rule undoubtedly is, that the jurisdiction of the superior courts is not taken away, except by express words or necessary implication (c). Maule J. By the [425] eighth section of the 5 & 6 W. 4, c. 23, no execution is given but by a quasi fieri facias. There is no power to send the party making default to prison; and it might be argued that such a power cannot be implied.] In Cates qui tam v. Knight (3 T. R. 442), the general rule was recognised, that the jurisdiction of the superior courts is not ousted but by express words. In that case the question turned upon the construction of the 25 G. 3, c. 51; which, having created penalties of 501. and of 101., enacted that the former should be sued for in any of the courts at Westminster, and provided that it should and might be lawful for justices of the peace to hear and determine the latter penalties, with a power to them to mitigate, &c.. and it was decided that such proviso, by implication, ousted such loans shall be made payable to the treasurer or clerk for the time being of the said institution; and if the party or parties liable to pay the same shall fail to make full payment in money of the sum in the note or security mentioned, or any part thereof, for seven days after demand made on each party, or left at his usual place of abode, by or on behalf of the treasurer or clerk for the time being of the said institution, it shall and may be lawful for any one or more of His Majesty's justices of the peace for the county, riding, city, division or place where the person, &c. respectively so refusing to pay any of such notes or securities as aforesaid, shall or may happen to be or reside; and such justice or justices is and are hereby required, upon complaint made by such treasurer, &c., to summon the person, &c., against whom such complaint shall be made; and after his appearance or in default thereof, upon due proof upon oath of such summons or warning having been given or left as aforesaid, such justice, &c. shall proceed to hear and determine the said complaint, and award such sum to be paid by the person, &c. respectively liable to the payment of any such note or security to such treasurer, &c., as shall appear to such justice, &c. to be due thereon, together with such a sum for costs not exceeding the sum of 10s., as to such justice, &c. shall seem meet; and if any person, &c. shall refuse or neglect to pay or satisfy such sum of money as upon such complaint as aforesaid shall be adjudged, upon the same being demanded, such justice, &c. shall, by warrant under his hand and seal, &c., cause the same to be levied by distress and sale of the goods of the party so neglecting or refusing as aforesaid, together with all costs and charges attending such distress and sale, and returning the overplus, if any, to the owner; and no such proceedings shall be removed by certiorari or otherwise into any of his Majesty's superior courts of record." (a) The statute received the royal assent on the 11th of August 1840. (b) Sect. 17 declares and enacts, "that notwithstanding the provisions hereinbefore contained, the treasurer or clerk of such society, for the time being, may proceed for recovery of the sum due on such note, against the party or parties liable to pay the same, in any county court, or court of conscience or request, having jurisdiction to the amount so due, according to the course and practice of such courts; and in such case the act or acts, and all provisions therein relating to such court and the powers thereof, shall be applicable to the recovery of the sum so due on such note." (c) See Agard v. Candish, Sav. 134, Cro. El. 326, S. C. in error, Sir F. Moore, 564, 2 Anderson, 127. And see Cates qui tam v. Knight, 3 T. R. 442; Shipman v. Henbest, 4 T. R. 109.

the jurisdiction of the superior courts as to the 101. penalties (b). [Maule J. The jurisdiction of the superior courts seems to be reserved by the express words of the fourth section of the 5 & 6 W. 4; for it authorises the trustees "to bring or defend any action, suit or prosecution, criminal as well as civil, in law or equity, touching or concerning the property, right or claim aforesaid of such institution." Suppose the society were possessed of a chattel and sold it, and the purchaser gave a promissory note to secure the payment, that would not be a case for proceeding before a magistrate, not being a case of a loan. There is nothing in this declaration to shew that the note sued upon was given in respect of a loan.] It is certainly not so stated expressly; but it is to be collected from the whole of the declaration.

Talfourd Serjt., contrà, was not called upon.

[426] TINDAL C. J. I do not think that last objection can be got over. Besides, there are no exclusive words in the statute under consideration; and it is perfectly clear, therefore, that the jurisdiction of the superior courts is not taken away. The proceedings under the eighth section must be before a justice of the peace for the county where the party making default resides; so that if such a party lived in Northumberland, and the treasurer in London, according to the construction contended for, the latter would be compelled to go to Northumberland to lay his complaint before the magistrates.

Bompas prayed leave to amend; but the court intimated, it would be better for the defendant that they should not accede to the request. Judgment for the plaintiff (a).

[427] JOSEPH HOWARTH v. TOLLEMACHE, ESQ. June 1, 1842.

Trover against the sheriff. Plea, that a fi. fa. was delivered to the defendant at the suit of A. against B.; that the goods in the declaration were the goods of B., and that before the time when, &c., B. fraudulently delivered to the plaintiff possession of the goods under colour of a feigned, covinous, and fraudulent conveyance, to the intent to delay A. contrary to the form of the statute; and that whilst the goods were so in possession of the plaintiff, and whilst the writ was in force, the defendant, as sheriff, did seize, &c. Held, that the plea was bad, as amounting to an argumentative denial that the plaintiff was possessed, as of his own property. This was a special action of trover. The declaration recited that the plaintiff

(b) See also Fleming v. Bailey, 5 East, 313; Ex parte Langston, 1 Mont. & Bligh, 142; S. C. per nom. Ex parte Benson, 1 Dea. & Chitt. 324; Dundalk Railway Company v. Tapster, 1 Q. B. Rep. 667.

(a) In Timms v. Williams, 2 G. & D. 621, which was decided a few days subsequently to the above case, the court of Queen's Bench held that no action is maintainable at the suit of the treasurer of a loan society upon a note given to the trustees to secure the re-payment of a loan from the society. The declaration there stated that the note was given for securing the payment of 101. lent by the society. The court seem to have decided the case principally upon the ground that, by the fourth section of the 5 & 6 W. 4, c. 23, (ante, p. 422 (c)), the note would vest in the trustees of the society, and that the treasurer could only recover payment of it by a summary proceeding before a magistrate, under the provisions of the eighth section (ante, p. 423 (a)).

Lord Denman C. J. and Patteson J. appear to have considered also that by the statute the jurisdiction of the superior courts was taken away, Patteson J. observing, "I think the remedy upon these notes is confined to the summary proceedings before a magistrate. Not that the jurisdiction of the superior court is taken away without express words, but that the statute enacts an instrument of such a nature, that express words were necessary to enable the treasurer to sue upon it, and such words are not to be found. Even with regard to the trustees, there is no power given to them to sue upon these securities.

Neither this, nor the principal case, can perhaps be considered as an express decision upon the point whether the jurisdiction of the superior courts is taken away by the 5 & 6 W. 4, c. 23, in an action by the trustees of a loan society on a note expressed to be given for money lent by the society.

before, &c., was a publican and beer-seller, and the trade of a publican and beer-seller had used and carried on in a certain messuage of the plaintiff, parts of which said messuage he was then in the habit of letting out as furnished lodgings for certain rents or sums of money, to him payable on that behalf. And that the plaintiff, on, &c., was lawfully possessed, as of his own property, of certain goods and chattels, used and employed by him as furniture and necessaries in his said messuage, and his said trade of a publican and beer-seller, to wit, twenty tables, &c. After stating the conversion in the usual form, the declaration proceeded to allege special damage as follows; whereby and by reason of the premises, the plaintiff's said messuage had become, and was wholly destitute of the said necessary articles for furnishing the same, and the plaintiff had been wholly prevented from carrying on his said trade as a publican and beer-seller, and from procuring tenants for his said lodgings; and the plaintiff had lost and been deprived of, not only, all the profit and advantages which would have accrued to him in respect of the exercise of his said trade, but had also lost, and been deprived of, all the profits and advantages which otherwise might and would have accrued to him in respect of his said lodgings; and also, by reason of the premises, the plaintiff had incurred divers charges and expenses, to wit, to the amount of 501., [428] in and about procuring lodgings at other houses for himself and servants for a long space of time, to wit, &c.

Fourth plea, that before the said time when, &c., to wit, on, &c., a certain writ of fieri facias at the suit of one T. B. against the said J. H., was duly issued out of the court of, &c., and was indorsed, &c., and was duly delivered to the now defendant, being sheriff, to be executed according to law. And, further, that before the said time when, &c., to wit, on, &c., the said goods, &c., were respectively the goods, &c. of the said J. H., and of right belonged to him; and that afterwards, and before the said time when, &c., to wit, on, &c., the said J. H. fraudulently and collusively gave and delivered to the plaintiff possession of the said goods, &c., under colour of a feigned, covinous and fraudulent alienation, bargain and conveyance thereof from him to the plaintiff then made, to the end, intent and purpose, to delay, hinder and defraud the said T. B. and the other creditors of the said J. H. of their respective just and lawful actions, debts and demands against the said J. H., contrary to the form of the statute in such case made and provided. And further, that the plaintiff afterwards, to wit, at the said time when, &c., well knowing the last mentioned premises, claimed title to the said goods, &c., (the same then being in the possession of the plaintiff as last aforesaid and not otherwise,) under colour of the aforesaid feigned covinous and fraudulent alienation, bargain and conveyance thereof. And further, that afterwards and whilst the said goods, &c. were so in the possession of the plaintiff as last aforesaid, and whilst the said writ was in full force, to wit, at the said time when, &c., he, the defendant, as such sheriff as aforesaid, within his said bailiwick, did, by virtue of the said writ and indorsement thereon, seize and take the said goods and chattels [429] for the purpose of levying thereout the moneys so directed to be levied by the said indorsement on the said writ as aforesaid; as it was lawful for him to do for the cause last aforesaid; which is the supposed conversion in the declaration mentioned. Verification.

Demurrer to the fourth plea; for that the defendant had, by his same plea in an indirect and argumentative manner, attempted to traverse and deny the allegation in the declaration, that the plaintiff was possessed of the goods therein mentioned as of his own property, the same plea shewing facts establishing that the plaintiff's possession was fraudulent, and therefore insufficient to give him even a primâ facie right to sue in trover; and also for that the same plea should have concluded to the country, and not with a verification. Joinder.

Bompas Serjt. in support of the demurrer. The fourth plea amounts to nothing more than an argumentative statement, that the plaintiff was not possessed as against the defendant. It is, therefore, bad, as neither traversing, nor confessing and avoiding, the allegation of possession in the declaration. In Nicolls v. Bastard (2 C. M. & R. 659; Tyrwh. & Gra. 156), there was a precisely similar plea; but the plaintiff, instead of demurring, took issue on the fraudulent sale. Parke B. there observed, "The whole defence stated in the last plea would, in truth, have been admissible under the second,” (which denied that the goods were the property of the plaintiff); "the plea of no property in the plaintiff, means no property as against the defendant; which the plaintiff could not have, if the sale was fraudulent. In Rowe v. Ames (6 M. & W.

747), which was an action on the case against the sheriff for neglecting to sell the goods of R. W. that had been seized by him in execution, the defendant, among other pleas, pleaded [430] that R. W. became a bankrupt, and that within two months after the issuing of the writ in the declaration mentioned, and the delivery thereof to the defendant, and of the seizure of the goods, and before the passing of the 2 & 3 Vict. c. 29, and before the defendant could or ought to have sold the said goods, a fiat issued, and the said R. W. was declared a bankrupt; and that, before the commencement of the action, an official assignee was appointed, in whom the said goods so taken in execution became and were vested; and this plea upon demurrer was held bad. [Maule J. It may be a question, whether, in the present case, the deed set out in the plea, is good even as between the parties.]

Channell Serjt. was then called upon to support the plea. First, as to the deed not being good as between the parties. The difficulty arises from the statement in the plea, that John Howarth gave the plaintiff possession "under colour of a feigned, covinous and fraudulent alienation, &c." But the word "feigned" is used in the statute 13 Eliz. c. 5, which, in sec. 1, is declared to be passed "for the avoiding and abolishing of feigned, covinous and fraudulent feoffments, gifts, grants, alienations, &c.; which feoffments, &c. have been and are devised and contrived of malice, fraud, covin, &c., to the end, purpose and intent to delay, hinder or defraud creditors and others of their just and lawful actions, &c." And then by sect. 2 it is enacted, that "every feoffment, gift, grant, &c., to or for any intent or purpose before declared and expressed, shall be deemed and taken (only as against that person or persons, his or their heirs, &c., whose actions, &c., by such guileful, covinous or fraudulent devices and practices, as is aforesaid, are, shall, or might be in any wise disturbed, hindered, &c.), to be clearly and utterly void, &c." So that it is clear, the "feigned alienation" mentioned in the plea would, [431] under the statute be void only as against creditors, and would be valid as between the parties themselves. The plaintiff complains of the conversion of his goods. The object of the plea is to give colour to him, by shewing that he was in possession of the goods with certain rights; the deed of alienation being valid as between himself and John Howarth though it would be "feigned, covinous; and fraudulent" as against the creditors, whom the plea alleges that the deed was given "to delay, hinder and defraud, contrary to the form of the statute." The deed would be valid under the statute, not only as between the parties, but as against all the world but the creditors of John Howarth.

It is extremely doubtful, whether the defence raised by the plea could have been given in evidence under the plea of "not possessed," notwithstanding what was said by Parke B. in Nicolls v. Bastard, which appears to have been the expression of an opinion formed at the moment, and certainly was not the point decided in the case. In Howell v. White (1 Moo. & Rob. 400), Patteson J. ruled that, under the plea of "not possessed," the defendant could not shew that a sale of the goods to the plaintiff had been fraudulent. So, in Samuel v. Duke (3 M. & W. 622), which was an action of trover against the sheriff and the execution creditor, it was held, that it was not competent to the sheriff, under that plea, to give in evidence certain facts justifying the seizure, which distinguished his case from that of the other defendants; but that such a defence should have been specially pleaded. Here, the defendant admits possession and some property in the plaintiff, as against all but certain parties who put him, the defendant, in motion. [Tindal C. J. The defendant is sheriff; he stands in the shoes of the creditors, against whom the deed is void: it is void, therefore, for the purpose of [432] this action.] The sole object in this case, is to comply with the rule that requires pleadings in confession and avoidance to give colour. The leading authority on that doctrine is Leyfield's case (10 Co. Rep. 88 a.), which is thus stated and commented on in Stephen on Pleading (pages 229, 230, 4th ed.). "To an action of trespass for taking the plaintiff's corn, the defendant may plead, in confession and avoidance, that he was rector, and that the corn was set out for tithe, and that he took it as such rector. Now it is to be observed that this is not an absolute confession, that he took the plaintiff's corn as alleged in the declaration. The defendant asserts, on the contrary, a title to the corn in himself. But still he admits that the plaintiff was the original owner, and entitled against all the world, except the defendant. There is, therefore, a confession so far as to admit some sort of apparent right or colour for the action; and the plea consequently complies with the terms of the rule now under consideration, and is sufficient." The rector there alleged the goods were his; and in the same manner the defendant here