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PATTESON, J. This was nothing more than the ordinary *covenant to repair; I think no forfeiture was incurred under the lease.

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Rule refused.

BUTCHER and another against HARRISON and Another. Nov. 6.

The assignees of an insolvent debtor are "parties grieved," within the meaning of the act 13 Eliz. c. 5, against fraudulent conveyances, and may recover the penalty thereby given, from the insolvent and others, parties to such conveyance.

On a fraudulent alienation of lands, the offending parties forfeit (by sect. 3 of the act), a year's value of the estate, but not the consideration money named in the conveyance.

DEBT by the plaintiffs as assignees, under the insolvent act, of the defendant Harrison's estate. The declaration stated that the defendant, Anna Louisa Harrison, was entitled to and interested in certain lands, &c., of the yearly value of, &c., and was indebted to the plaintiff, Butcher, in the sum of 307, and to other persons in divers other sums: nevertheless, that the defendants well knowing the premises, of their malice, fraud, &c., were parties to a fraudulent conveyance of the said lands, &c., from the said A. L. H. to Edward Harrold (the other defendant) by lease and release, for a pretended consideration of 5007. in the said conveyance stated to have been paid, to the intent to hinder and defraud A. L. H.'s creditors of their just debts; which conveyance the defendants, after the said A. L. H. became an insolvent debtor, did wittingly and willingly put in ure, avow, maintain, &c., to the intent before stated, contrary to the statute; whereby an action had accrued to the plaintiffs as such assignees, (being, as such assignees as aforesaid, the parties grieved by the said fraudulent conveyance,) to demand and have, for the king and for themselves as such assignees, &c., of and from the defendants, being the parties thereto, one year's value of the lands, amounting to, &c., "and also *the said sum of 5001., being the said sum of money contained in the said [*130 ance as aforesaid." Plea, nil debent. At the trial before Bosanquet, J., at the Stafford Summer assizes 1832, evidence was given in support of the averments in the declaration, and the plaintiffs had a verdict for 1507. as the annual value of the land, and 5007. as the sum contained in the conveyance.

convey

Curwood now moved for a rule to shew cause why a nonsuit should not be entered, or the judgment arrested. This is a declaration on the statute 13 Eliz. c. 5,(a) for a penalty in respect of a fraudulent conveyance; and the plaintiffs say that they claim, being, as assignees of an insolvent, by whom the conveyance was made, "the parties grieved" thereby. But assignees of an insolvent who has made such a conveyance, are not "grieved" thereby, within the meaning of the act: they cannot, as representatives of one party to such conveyance, sue the other for penalties. And further, the forfeiture given by the act is,

(a) The act is stated in sect. 1, to be for the avoiding of fraudulent conveyances, &c., as well of lands as of goods, devised and contrived to delay, hinder, or defraud creditors and others of their lawful actions, debts, &c. It is therefore enacted in sect. 2, that all and every bargain and conveyance of lands, goods, and chattels, &c., and all and every bond made to or for any intent or purpose before declared, shall be, (only as against the persons thereby hindered, delayed, and defrauded,) utterly void. And sect. 3 enacts, that the parties to such fraudulent conveyance, bonds, &c., who at any time after, &c., shall wittingly and willingly put in ure, avow, maintain, justify, or defend the same as true or made bona fide, "shall incur the penalty and forfeiture of one year's value of the said lands, tenements, and hereditaments, leases, rents, commons, or other profits, of or out of the same; and the whole value of the said goods and chattels; and also so much money as are or shall be contained in any such covinous and feigned bond;" one moiety to the Queen, the other "to the party or parties grieved" by such fraudulent conveyance, bond, &c.

*131] "one year's value of the said lands," &c., "and the whole value of the said goods and chattels; and also so much money as are or shall be contained in any such covinous and feigned bond;" that is, where land is fraudulently conveyed, one year's value of the land shall be forfeited; where goods, the value of the goods; and where a bond is given, the sum of money named in the bond: but here the plaintiffs have claimed in their declaration, and have recovered, both a year's value of the land and also the consideration money mentioned in the deed of lease and release. They were only entitled to 1507. PER CURIAM. (a) We have no doubt that the assignees were parties grieved within the statute, being the persons who, but for the fraudulent conveyance, would have been entitled to seize the lands by due process of law. As to the other point, the act declares that the money contained in any such covinous and feigned bond shall be forfeited, but not the consideration named in any fraudulent conveyance. There will, therefore, be a rule to shew cause why the damages should not be reduced to 150%. But,

R. V. Richards, for the plaintiffs, consenting, the rule for such reduction was forthwith made

Absolute,

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*EDWARD LYTTON BULWER, Esquire, v. HORNE, COSTAR, and Others. Nov. 7.

In assumpsit on a special contract, and for money had and received, &c.. defendant pleaded the general issue, and to the common counts a tender; and he paid into Court, upon a rule in the common form, not applying in terms to any particular count: Held, that such payment could not be referred exclusively to the counts as to which a tender was pleaded, but that it applied to the whole declaration, and admitted the special

contract.

ASSUMPSIT against the defendants, carriers, for not conveying the plaintiff to Cheltenham according to an agreement which was specially stated. Money counts. Plea, the general issue, except as to 17., part of the sums claimed in the third and subsequent counts (the common counts), and as to that a tender. Issue thereon. At the trial before Parke, J., at the sittings at Westminster during last Hilary term, it appeared that the plaintiff had paid a deposit of 17. for a place in the mail to Cheltenham, the defendants engaging, as they said. conditionally, but as the plaintiff alleged absolutely, to convey him: at the time appointed the mail was full, and the plaintiff proceeded in a chaise and brought this action to recover the expenses. The jury were of opinion that the contract was conditional only, but it appeared that the defendants, on pleading a tender, had, by mistake, obtained a rule of Court in the common form, for paying 17. into Court generally, and not upon the particular counts to which the tender was pleaded; and the money was so paid in. No entry of payment was made on the margin of the paper-book. It was contended for the plaintiff that this general payment must be considered an admission of the special contract stated in the first two counts; and Parke, J., being of that opinion, directed a verdict for the plaintiff for 57., giving leave to move that a nonsuit might be entered. A rule nisi having been obtained for that purpose,

*F. Pollock and Hoggins now shewed cause. The learned Judge [*133 decided rightly, and when a mistake like this is made, the party must abide by the consequences. It has been so held in a case where money was erroneously paid into Court on a declaration upon a policy of insurance.(b)

(a) Parke, Taunton, and Patteson, Js.

(6) Alluding probably to Andrews v. Palsgrave, 9 East, 325. The defendant there ob

Sir James Scarlett and Curwood contrà. The payment into Court upon this rule was not a conclusive admission, but capable of being explained. It is true that such payment under a rule of Court in an ordinary case where the general issue is pleaded, is a conclusive admission that something is due, and that an action lies on every count. But on a plea of tender that is not so. The plea states that the party, at a certain time, tendered a part of the sum claimed in certain counts of the declaration, and has ever since been and still is ready to pay it, and that he now brings it into Court ready for the plaintiff if he will accept it. In support of this last averment the money is paid in, and the rule of Court is the evidence of the payment. If the 17. were not paid, the defendant must fail on that plea. The general inference, therefore, does not arise, as in other cases, that the payment applies equally to the whole declaration. The plaintiff cannot understand it so, and such a construction would be contradictory to the record. There is no case in which it has been adopted. To make the payment here applicable to *the whole declaration, 17. ought to have been paid in upon the counts to which the tender is pleaded, and another like sum on the remaining ones.

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PARKE, J. I have always understood that payment of money on a rule of Court was deemed a conclusive admission. I yield to the objection with reluct ance, but I think we must decide that money paid in as this was, is paid upon the special as well as the general counts, and has the effect of an admission on both. It is said this was a mistake; but the defendant might have availed himself of it if he had failed on the plea of tender; for, in that case, if the plaintiff had only proved a loss of 17. incurred by him through the default complained of, the defendant would have had a verdict, and his costs subsequent to the bringing of the money into Court. As, then, he would have benefited by the error in that case, he must suffer by it in the event which has occurred. TAUNTON, J. concurred.

PATTESON, J. I am of the same opinion, though I come to the conclusion reluctantly. This is clearly a blunder, but the party making it must suffer the consequence. Rule discharged.

*The KING v. LLOYD, BURNELL, and Others. Nov. 8.

[*135

By the act 11 G. 4, & 1 W. 4, c. 70, s. 9, upon trials for felony or misdemeanor on a King's Bench record, judgment may be pronounced at the assizes, and shall have the effect of a judgment of the court above, unless that court in the first six days of term grant a rule nisi for a new trial, or for amending the judgment. A defendant on such record, having been sentenced at the assizes, cannot apply to the Court to amend the judgment by diminishing the punishment, upon ordinary affidavits in mitigation, or without showing some specific defect in the sentence, or some matter which could not have been adduced at the assizes.

AN indictment against these parties for conspiracy, being removed by certiorari, was tried at the last York assizes, on the civil side, before Parke, J. The defendants, Lloyd and Burnell, were convicted and sentenced, at the same assizes, to eighteen months' imprisonment. John Williams (with whom was Alexander) now moved for a new trial, on the ground that the verdict was against evidence. The Court having refused a rule nisi, Williams then moved for a rule to shew cause why the sentence should not be amended, pursuant to the statute 11 G. 4, and I W. 4, c. 70, s. 9, (a), by diminishing the punish

tained leave to amend his rule for paying money into Court, and to go to a new trial on payment of costs; but in the present case no application of that kind could be made, the damages being below 201.

(a) Which enacts, "That upon all trials for felonies or misdemeanors upon any record of the Court of King's Bench, judgment may be pronounced during the sittings or assizes,

ment. In support of this motion affidavits, sworn by the defendants respectively, were put in and read, vindicating their conduct on the merits of the case; stating hardships to which they had been *subjected by the prosecution, and alleging ill-health, poverty, and the condition of their families, as grounds for a mitigation of the sentence.

*136]

And it

DENMAN, C. J. These affidavits do not shew any thing which would have been likely to induce a judge as the assizes to pass a milder sentence. is important it should be understood, that defendants are not enabled by this statute to take the chance of a light sentence at the assizes, and afterwards, if they think proper, come to this court to amend the judgment.

PARKE, J. I am of the same opinion. The affidavits are not such as would have induced me to pass a lighter judgment. To ground a motion of this kind, the party ought to point out some essential defect in the sentence, otherwise we should lose, and not gain, by the enactment of the late statute: for after sentence had been passed at the assizes, we should still be called upon, in a number of cases, to hear the report of the trial, affidavits, and speeches of counsel, in this court, as the practice was before the act.

TAUNTON, J. concurred.

PATTESON, J. It happens here that the affidavits contain nothing which could induce a mitigation of the sentence. But if this were otherwise, I think the parties would be bound to shew why they did not suggest that matter at the Rule refused.(a)

assizes.

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*DOE dem. THOMPSON v. LEDIARD. Nov. 9.

By a local turnpike act certain tolls were made subject to the payment of moneys borrowed thereupon. The trustees granted mortgages of such tolls, in the form given by the turnpike act, 3 G. 4, c. 126, s. 81, conveying to each creditor such proportion of the tolls, and the toll-gates and the toll-houses, as the money advanced by him bore, or should bear to the whole sum due or to become due on that security. By a subsequent act for making a new branch road, the former act was continued, and certain tolls were granted in respect of the new branch, to be applied like the former, and to be subject to the debts incurred on the credit of the former tolls; and it was enacted, that all moneys due on such credit should be entitled to "a preference and priority of charge and payment" before any moneys advanced under this act, for making the new branch. On ejectment for the tolls and toll-houses by the holder of a mortgage, (framed like the former ones,) for moneys lent to complete the branch road: Held, that the words "priority of charge," did not prevent this mortgagee from acquiring a legal estate in the subjects mortgaged, and that he might recover the toll-houses and gates in ejectment, (pursuant to 3 G. 4, c. 126, s. 49,) only remaining accountable to the other mortgagees for such portion of the tolls as they were entitled to in respect of their advances.

EJECTMENT for toll-houses and toll-gates. At the trial before Littledale, J., at the Gloucester Spring assizes, 1832, a verdict was found for the plaintiff with liberty to move to enter a nonsuit, and on such motion the Court directed a special case to be stated. The case was in substance as follows:

by the Judge before whom the verdict shall be taken, as well upon the person who shall have suffered judgment by default or confession upon the same record, as upon those who shall be tried and convicted, whether such persons be present or not in Court, excepting only where the prosecution shall be by information filed by leave of the Court of King's Bench, or such cases of informations filed by his Majesty's Attorney General, wherein the Attorney General shall pray that the judgment may be postponed; and the judgment so pronounced shall be indorsed upon the record of Nisi Prius, and afterwards entered upon the record in Court, and shall be of the same force and effect as a judgment of the Court, unless the Court shall, within six days after the commencement of the ensuing terin, grant a rule to show cause why a new trial should not be had or the judg

ment amended."

(a) As to the practice with respect to affidavits in mitigation at the assizes, see Rex v.

Cox, 4 Car. & P. 540.

By statute 6 G. 4, c. cxlvii., for improving part of the road from Cheltenham to Gloucester, &c., certain tolls thereby granted were made subject to the payment of moneys borrowed on the credit of former tolls, and to be borrowed on the tolls granted by that act, without preference among the creditors in respect of priority of mortgages, &c. By statute 9 G. 4, c. ix., for making a branch road to communicate with the former, it was declared that the former act (except such parts as were then varied, altered, or repealed,) should be as valid and effectual for carrying this act into execution as if re-enacted therein; and certain tolls were granted on the branch road, to be applied like the former tolls, and were, by section 10, made liable to all the debts incurred on the credit of those tolls. By section 11, it was nevertheless provided as follows:-"That all such *moneys as are now due and owing on the credit of the said tolls, and also [*138 all such other moneys as may hereafter be borrowed or raised for the making or completing the several branches of road authorized to be made by virtue of the said last-mentioned act (of 6 G. 4), with the interest on all such moneys respectively, shall have and be entitled to preference and priority of charge and payment, to and before any sum or sums of money to be advanced by any person or persons on the credit of the tolls granted by the said last-mentioned act or by this act, for the purpose of making or completing the new branch of road hereby authorized to be made as aforesaid, and for erecting a toll-gate and toll-house thereon, and to and before the interest on such last-mentioned sum or sums. This arrangement had been consented to before the passing of the act, by the lessor of the plaintiff, a person materially interested in the making of the branch road, and who, at the same time, agreed to advance money for the undertaking.

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The branch road was made, and a toll-house and toll-gate erected thereupon, pursuant to the last-mentioned act; and the trustees under the two acts, having borrowed 27007. of the lessor of the plaintiff, granted him, for the purpose of securing the same, twenty-seven mortgages, in the form given by the general turnpike act, 3 G. 4, c. 126, s. 81, and in each of which the mortgagors (therein named as trustees for executing the two first-mentioned acts, the titles of which were recited), in consideration of 1007. advanced by him towards defraying the expense of the branch road, granted and assigned to him, his executors, &c., such proportion of the tolls arising and to arise on the said road, and the roads *authorized by the said acts to be made, and the toll-gates and toll-houses thereon, as 1007. did or should bear to the whole sum due or to become [*139 due on the security of the said tolls; to have, hold, and take the said proportion, &c., for and during the residue of the term for which the said tolls were granted, unless the said sum of 1007., with 5 per cent. interest, were sooner paid. At the time of making these mortgages, there was and still is due to other creditors entitled to the preference given by 9 G. 4, c. ix., s. 11, the sum of 17,000l., secured to them respectively by mortgages on the tolls, toll-houses, and toll-gates, in the same form as those held by the lessor of the plaintiff. The yearly income of the tolls is not sufficient to yield anything to the lessor of the plaintiff, after paying for necessary repairs, and the interest due to prior creditors. The defendant was at the date of the demise, and still is, in possession of the toll-gates and toll-houses. This case was now argued by

Maule, for the lessor of the plaintiff. This action is well brought under section 49, (a) of the general turnpike act, 3 G. 4, c. 126, notwithstanding the pre

(a) By which, "If any mortgagee of tolls, toll-gates, &c., shall seek to obtain possession of the toll-gates, &c., in order to pay himself the principal money and interest, or any part thereof due to him, it shall be competent for him, as lessor of the plaintiff, and upon his demise only, and without uniting in such demise the other mortgagees of the said tolls and premises, to obtain such possession; but such person who shall obtain the possession thereof, shall not apply the tolls which may consequently be received by him, to his own exclusive use and benefit, but to and for the use and benefit of all the mortgagees of the said premises, pari passu, and in proportion to the several sums which may be due to them as such mortgagees."

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