*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 150l. But,

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

*132]

*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 5l., 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.()

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

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

this

Sir James Scarlett and Curwood contrà. The payment into Court upon 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.

[*134

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 verdiet 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 1 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]

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. And it 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 assizes. Rule refused.(a)

*137]

*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 term, 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 all such other moneys as may hereafter be borrowed or raised for the [*138 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.

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."

*140] ference given by 9 G. 4, c. ix., s. 11, to debts incurred on the *credit of the former tolls, or for completing the branches of road mentioned in 6 G. 4, c. cxlvii. It is contended on the other side, that there is no legal estate in the lessor of the plaintiff, because the other creditors have a "priority of charge and payment:" but althsugh they have a right to be first paid, that does not divest him of the legal estate conveyed to him by trustees under an act of parliament; he has a right to recover what is now claimed, and the application he may be bound to make of the tolls, after having so recovered, cannot alter his right that is merely matter of account between him and the prior creditors. The same view was taken of a mortgage of tolls and toll-houses, upon which there were other mortgages, in Doe dem. Banks v. Booth, 2 B. & P. 219. It is true the eleventh section of 9 G. 4, c. ix., gives the creditors there mentioned a priority of "charge" and payment; but the word "charge" is satisfied by the application of the tolls, when recovered, to the payment of their mortgages first. If that were not so, the present lessor of the plaintiff could never recover, as long as a claim to any amount could be set up by one of the prior creditors. [PARKE, J. That is only the inconvenience to which any second mortgagee is liable.] The question is, whether the act places the lessor of the plaintiff in that situation.

W. J. Alexander, contrà. If the lessor of the plaintiff could recover, a great hardship would be thrown upon the other mortgagees. The party who first lent his money on one of these mortgages acquired a legal estate in the whole tolls, *141] toll-houses, &c., subject to two conditions: *first, the divesting of the estate on payment of the debt; secondly, the abstraction of a part of the security in favour of persons subsequently advancing money on similar mortgages. The value of the interest which such lender acquired, was to be calculated with reference to these events: but according to the claim now advanced on the other side, the act of 9 G. 4, c. ix., would entirely alter the result of this calculation. The eleventh section appears framed with a view to prevent any such assumption, for it retains to the creditors, who rank first, a priority of charge as well as of payment; the word charge evidently meaning the security they are to have, in addition to the right of being first paid: and the priority of charge is as important to them, as the preference given in respect of payment. Unless they had both, they would be subject to the very inconvenience suggested by Lord Eldon in Doe dem. Banks v. Booth, 2 B. & P. 224. "The money advanced by the mortgagee would be very ill secured, if his only remedy was either an application to the vindictive power of the Court of King's Bench, or a suit in Chancery, in which all the other mortgagees must be made parties." The lessor of the plaintiff here is only mortgagee of the equity of redemption, and has no legal estate. The very form of his mortgage shews this, for it refers to the act 9 G. 4, c. ix., and thereby incorporates the eleventh clause as if it were in terms set out. Section 49, of the general turnpike act must not be understood to govern the proceedings on all mortgages which may thereafter be made; a new act, containing a specific provision like that of 9 G. 4, c. ix. s. 11, *142] may control its operation. *And in a mortgage made since that statute, whatever be its form, the demise (as was said in Doe dem. Banks v. Booth, 2 B. & P. 223, can only operate so as to effectuate the act. The word "charge," in this act, cannot be nullified or passed over, and must be taken to imply "legal estate."

Maule, in reply. A mere conveyance of the tolls and toll-gates, without more, would clearly have entitled the lessor of the plaintiff to the legal estate. Is that right altered because the act 9 G. 4, c. ix. adds some direction as to the purpose to which the tolls are to be applied when recovered? [PATTESON, J. At the time when the act passed, there was a legal estate outstanding in the other parties. PARKE, J. ~ The legal estate was in them, subject to be opened by other mortgages granted to new creditors: the question is, whether, under the present act, it is so opened to the lessor of the plaintiff?] The mortgage to