judgment as pleaded, shewed that the voyage on which | bound to Matamoras, not for the purpose of commerce the ship was captured was not a voyage from London with the inhabitants thereof, but for the purpose of to Matamoras. The plaintiff, in answer, contended, such a sale or transaction there as that the Confede first, that the decision does not profess to decide the rates should get the use of the cargo, all the words of matter of fact on which the defendant relies; and, se- the judgment have their usual meaning and effect. condly, if it had decided that matter of fact, still that We have no jurisdiction to inquire into, nor are we at the decision could not be pleaded as an estoppel; and all considering the validity of, the legal grounds of we are of opinion that the plaintiff is right. The rule the judgment; our task is to ascertain what matter making the decision of a Court which creates the sta- of fact the judge found to exist. He may have contus of a person or thing conclusive upon all persons as sidered that trading with the Confederates was not to the existence of that status, has been regarded as within the authority and intendment of public salutary. Sentences of nullity of marriage in the eccle- and was in violation of the law of nations, and the a siastical courts, of forfeiture in the Exchequer, of set- voyage to Matamoras, in order that the cargo should tlement of paupers by the quarter sessions, and of be transferred from thence to some other port or prize in prize courts, are examples. In Hughes v. place for the use of the Confederates, was a destina. Cornelius (2 Show. 232) the rule was applied within sa- tion of the cargo for such port or place, and made it lutary limits, when in trover for a ship by former liable to confiscation, and that the papers were simuowner, the sentence of a prize court was held conclu- lated and false, because they represented Matamoras sive to shew that the property had been changed. (See as the final destination, and concealed a purpose of Doe v. Oliver, 2 Smith's L. C. 634, where the whole ulterior destination. By this examination of the subject is fully considered with much learning and judgment set out in the plea, we are led to the colucid arrangement). But the rule making the finding clusion, that the learned judge did not intend to fui,! of a judge upon any matter of fact upon which he as a matter of fact, either that the ship had not sailed professed to form his judgment conclusive upon all on a voyage to Matamoras, or that, after having so the world, has been supposed to be anomalous, and to sailed, she had deviated from that voyage. But on produce pernicious results. (See Lord Eldon's opinion the contrary, he condemned her as a lawful prize bein Lothian v. Henderson to that effect; also, in Geyer cause she was in prosecution of that voyage with an v. Aquilar, 7 T. R. 681, Lord Kenyon, at p. 696, ulterior destination, either for the cargo or the ship, speaks of the rule as a source of the grossest injus- or both, as above explained. The judgment, there tice). So, in Donaldson v. Thompson (I Camp. 429), fore, does not sustain the inferences of fact which the Lord Ellenborough, speaking of the rule, says, at p. 431, defendant seeks to establish thereby, nor does it sus"The doctrine in their favour rests on an authority in tain his claim of right to prevent the plaintiff from Shower, which does not fully support it, and the prac- shewing the truth in respect of this fact; and the plea tice of receiving these sentences often leads in its con- is, therefore, bad. So far, that is the judgment of my sequences to the greatest injustice." We would refer self and my Brothers Byles and Keating. The other to Dalgleish v. Hodgson (7 Bing. 495), where Tindal, answer to that plea is the opinion of my Brother C. J., at p. 504, says, "That the sentence of the prize Byles and myself, and my Brother Keating does not court is not conclusive as to the ground of condemna- assent or dissent. tion; if there be any ambiguity as to what the ground is, it must not be left in uncertainty whether the ship was condemned upon one ground, which would be a just ground of condemnation by the law of nations, or on another ground, which would amount only to a breach of the municipal regulations of the condemning country." Although these sentences must be received in evidence, still the precedents shew that they have been carefully examined for the purpose of seeing whether the matter of fact, in proof of which they are adduced, was clearly and certainly found by the judge whose sentence is relied on. Bernardi v. Bovill (7 T. R. 523) are among numerous cases which might be cited to this effect.

We now proceed to examine the judgment set out in the eighth plea. The condemnation appears to us to have been for carrying contraband of war intended to be for the use of the enemy of the United States, and the sentence, so far from deciding that the ship, with the said goods, did not sail on the voyage from London to Matamoras, appears to us to express that she was on that voyage when she was taken. The first matter of fact found by the judge is, that the ship was knowingly on the voyage aforesaid (that is, from London to Matamoras), laden with contraband. The second is, that the said ship, with the said cargo, was not truly destined to Matamoras, a neutral port, and for purpose of trade and commerce, within the authority and intendment of public law, but was destined for some other port or place, and in aid and for the use of the enemy, and in violation of the law of nations; and that the ship's papers were simulated and false. If the judge meant to find that the ship was not bound to Matamoras, but, on the contrary, to a port of the enemy, the finding would have been so expressed. But if he meant to find that she was

We are further of opinion that the eighth plea, and the same rejoinders as last mentioned, are bad, because the finding of a matter of fact in the course of the adjudication of a prize court cannot be pleaded as an estoppel in the cases where, if adduced in evidence, the judgment would be received as conclusive evidence of the fact so found. Although the cases are numerous in which the evidence has been admitted, still there is no precedent for a plea of the fact as an estoppel that we have been able to find. The principle on which the evidence was held admissible is not clear. Lord Eldon, in Lothian v. Henderson says, it was introduced at first against the insurers to prove the loss, and was afterwards used by the insurers for their defence; Lord Ellenborough, in Fisher v. Ogle, speaks of it as a matter of comity between the two courts. Such evidence does not fall within any legal description of matter of estoppel, nor is it guarded by the safeguards against abuse which restricts matter of estoppel in respect of parties, and of subject-matter. In Barrs v. Jackson (1 Y. & C. C. C. 585), cited in Doe v. Oliver (2 Smith's L. C. 677), ViceChancellor Knight Bruce gives an elaborate judgment on estoppel at p. 595, and lays down the principle thus:-"Generally, the judgment neither of a concur rent nor of an exclusive jurisdiction is conclusive evidence of any matter which came collaterally in question before it, though within the jurisdiction, or of any matter incidentally cognisable, or of any matter to be inferred by argument from the judgment, and that a judgment is final only for its proper purpose and object." The admissibility of the judg ment of prize courts upon matters of fact is not restricted within these limits; and although we are bound here to hold that they are admissible, as far as the decided cases have established their admissibility,

et beyond that limit we would not go; and we conder that the attempt to use the judgment as an estoppel does transgress that limit, there being no predent for it. In relying upon the absence of any Precedent, we do not consider that this objection is nfined to a matter of form. It restricts, in some dee, the tendency of such evidence to defeat real Eth by technical proof, and it may have the effect preventing the foreign judgment from being misderstood or misapplied. If the judgment can only Ladduced in evidence, and is not pleadable as an toppel, the meaning may be ascertained by adducing evidence the preliminary proceedings and other atters referred to in the judgment. In Bernardi V; steur Lord Mansfield admitted a French arret, and expressed his opinion, that the proces verbal on which the judgment was founded ought to have been given in evidence at the trial by the plaintiff, to shew the meaning of the judgment-that is, to shew whether The Court intended to find enemy's property, and so prove a breach of warranty of neutrality, or to ondemn by reason of an arret against throwing Papers overboard. So, Christie v. Secretan (8 T. R. 92), the Court, by the special case, had power to refer to the proceedings before the Tribunal de Commerce, and also to a printed copy of a treaty between France and America, to shew the meaning of the udgment. So, in Pollard v. Bell, the Court referred, For the same purpose, to the judgments in the Tribunal Je Commerce at Bordeaux, in the Tribunal Civil de La Gironde, in the Cour de Cassation at Paris. So, in Dalgleish v. Hodgson, the circumstances under which the ship entered the River Plate were admitted in evidence to shew the meaning of the judgment-that is, to shew whether she was condemned for breaking blockade, or for disobedience to a municipal law of

Brazil. These are the considerations which induce us to adhere to precedent, and reject the plea of estoppel. If the judgment here in question should be hereafter adduced in evidence in support of the third plea, it may be that it would be found to refer to pleadings and doctrines of public law, and to various classes and items of proof relating to acts and declarations of parties on board, and so forth; and if the judgment was given in evidence, these matters so referred to therein might be also adduced in evidence, and might shew that the fact was not found by the judge, as supposed by the defendant. This inquiry would not tend to impeach the conclusive effect of the judgment upon the question of prize, but might prevent a mistaken assumption from prevailing over the truth. For these reasons, we give our judgment on these demurrers for the plaintiff.

We consider the eighth plea open to the further objection, that it does not plead the issuable fact in repect of the voyage, but the evidence which might Prove that fact. It pleads the probans, but not the probandum; but as this objection would not apply to the rejoinder to the third plea, we do not further advert to it.-Judgment for the plaintiff.

a plea setting out the deed of composition, in which creditors have "agreed to accept 2s. 6d. in the pound in discharge, so far as they can, without prejudice to the rights of third parties and sureties;" and alleging a tender to the plaintiff of the amount due.

Action on a bill of exchange. The defendant pleaded a composition deed, setting out the deed. The deed was made between the defendant of the one part, and his the defendant had proposed to pay to all his said crecreditors of the other part. It recited (inter alia) that respective debts; and that a majority in number, reditors a composition of 2s. 6d. in the pound upon their had agreed to accept the said composition in discharge presenting three-fourths in value of the said creditors, of their respective debts, so far as they were able to do So, without the consent or permission, and without prejudice to the rights or claims, of third parties or sureties, but no further; and it was witnessed, that in consideration of the payment of the said composition to the said creditors respectively on or before the 10th April then next, the said creditors agreed to receive and accept the said composition in discharge to such extent as therein before mentioned. The plea went on to say, that all the conditions required by the Bankruptcy Act, 1861, had been complied with; that the plaintiff, at the time of the deed, was a creditor for fulfilled necessary to make the deed binding on him, the amount now claimed; that all conditions had been and to discharge the defendant from paying him any further sum than the said composition of 2s. 6d. in the pound; and that, before the said 10th April, the defendant was, and thence hitherto had been, and still was, ready and willing, and before the said 10th April refused the same, the amount of the said composition. tendered and offered, to pay to the plaintiff, who then The plaintiff demurred to this plea, and the defendant joined in demurrer. The case was argued by Hance, for the plaintiff.

H. James, for the defendant.

Park Company v. Pattinson (3 H. & C. 829); Wells v. The following cases were referred to:-The Ipstone Hacon (33 L. J., Q. B., 204); Eyre v. Archer (16 C. B., ham v. Atkinson (4 B. & S. 722); and Symons v. George N. S., 638); Tabor v. Edwards (4 C. B., N. S., 1); Clap(33 L. J., Ex., 231).

Cur, adv, vult.

Jan. 30.-CHANNELL, B., now delivered the judgment of the Court.-The question in this case arises upon a demurrer by the plaintiff to a plea setting up a composition deed under the Bankruptcy Act, 1861, as a bar to an action against the defendant as acceptor of a bill of exchange. It was argued before us last term. The main point insisted on, on the part of the plaintiff, was, that as the deed contained no release, it could not be pleaded in bar. Two cases were cited in support of this view, viz. The Ipstone Park Company v. Pattinson (3 H. & C. 829) and Eyre v. Archer (16 C. B., N. S., 638). On the part of the defendant it was urged, that the plea was good, as in accord and satisfaction. The plaintiff did not execute the deed; and therefore the first question for our determination is, whether the requirements of the 192nd and following sections of the Bankruptcy Act, 1861, have been sufficiently complied with to bind the minority, by the assent of the majority, of creditors in number and value. Compliance with such requirements as proving assents, registration, &c., is sufficiently alleged in the plea, and therefore admitted on demurrer. The case of Clapham v. Atkinson, in error (4 B. & S. 730), has decided that it is no valid objection that the deed is a mere composition deed, containing no cessio bonorum. Another objection was suggested to the deed, viz. that it contains no coveAn action brought by a non-assenting creditor is barred by nant by the debtor to pay the composition mentioned

COURT OF EXCHEQUER.
HILARY TERM.

Coram POLLOCK, C. B., BRAMWELL, CHANNELL, and
PIGOTT, BB.]

v.

GARROD
1865.
Bankruptcy Act, 1861-Composition deed-Accord and
satisfaction.

SIMPSON.-Nov. 7 and 9, 1864, and Jan. 30,

they impropriator had any control whatever over theancel, or the seats there, and asserted that the Vicar is entitled by law to a seat in the chancel, and that the erection of the proposed seat will not inconrenience the parishioners." No proof was given of the averments, either in the statement or answer; but on the facts therein alleged, and after a personal inspection of Seighford Church, on the 15th December, 13, the Chancellor of Lichfield decreed a faculty to issue, authorising the Rev. Edwin Cresswell Perry, the vicar, and John Ward, the churchwarden, to place two movable benches in the chancel of Seighford Church. for the use of the vicar and his family, according to the plan annexed to the citation, and condemned the defendants in the costs of the proceedings. From this decree Mr. Eld only appealed to the Court of Arches.

Deane, Q. C., and Swabey, for Mr. Eld, contended that the vicar had no right to a seat in the chancel; that as the churchwardens had allotted ample pew accommodation to the vicar and his family, the faculty had been obtained on a false suggestion. [They cited Griffin v. Dighton (10 Jur., N. S., 69).]

Robertson, for the vicar and churchwardens, submitted that this Court, in such a case, would not reverse the decision of the local ordinary, made after a personal inspection. [He cited Woollocombe v. Ouldridge (3 Add. 1).]

communion. This is distinctly controverted, and I must presume, and ought to presume, that the chancellor of the diocese had a knowledge of the locality, to which I cannot pretend; and it is clear that, in his opinion, no such inconvenience will occur. I must further observe, that the judge has been very cautious, for he has directed that the two benches in the chancel shall be movable, thereby reserving to himself, in case of any just cause of complaint, the power of determining thereupon. Perhaps I ought to mention, that Mr. Eld complains, that the use of his vault will be impeded; but that cannot be, as the seats are movable. On the whole, I am of opinion that the appellant has entirely failed in producing any just grounds for his appeal; and I dismiss it, with costs.

COURT OF APPEAL IN CHANCERY.
Re MIDLAND COUNTIES BENEFIT BUILDING SOCIETY.
-July 23 and Aug. 3.

Benefit building society-Winding up.

A benefit building society does not come within the Industrial and Provident Societies Act, 1862, and cannot be wound up in the county court; or, if it can, the jurisdiction of this Court is not thereby ousted.

of the Rolls, who refused to make an order for winding
This was an appeal from a decision of the Master
up the Midland Counties Benefit Building Society, on
the ground that the society ought to be registered, and
then be wound up in the county court. The case is
reported 10 Jur., N. S., 505.

S. Thompson, for the petitioners (the appellants).
Swanston, for the society.

Aug. 3.-Sir J. L. KNIGHT BRUCE, L. J., said, that it might possibly be a proper interpretation of the acts to hold that the jurisdiction did exist in the county court. That might or might not be; but his Lordship thought that the jurisdiction in the Court of Chancery existed, and that the petition ought to be

restored.

Dr. LUSHINGTON.-This is an appeal from the Consistory Court of Lichfield, brought under the following circumstances:-The vicar applied for a faculty to enable him to erect a pew or seats in an unoccupied space within the chancel of Seighford Church, to be allotted and appropriated, when erected, for the use of the vicar for the time being of that parish and his family. This faculty was opposed by Mr. Eld. The two churchwardens took different sides in the contest. The judge decreed the faculty to pass. It is my duty to consider whether there are sufficient grounds for the revocation of this faculty. It is agreed by the parties, that no question shall be raised as to the jurisdiction of the bishop acting by his chancellor. The substance of the faculty is, that it authorises two Sir G. J. TURNER, L. J., after stating the facts, said, movable benches to be placed in the chancel for the that the ground of the decree of the Master of the use of the vicar and his family, according to the plan Rolls appeared to be, that the society ought to be annexed to the citation. Dr. Robertson called my at-wound up under the Industrial and Provident Societies tention to the case of Woollocombe v. Ouldridge (3 Add. 1), and I conceive, that the decision in that case contains sound law. I quite agree with Sir J. Nicholl, and should be very unwilling to disturb the judgment of a local ordinary in a matter of this nature, unless it could be clearly shewn that it either involved the plain violation of some private right, or would give rise, actually or probably, to some considerable degree of general inconvenience. That principle will cover my judgment. I should observe, that I have no evidence to guide me. All the Court can do is to examine the pleadings, and the plans of the church annexed, and to inquire whether, from them, enough can be extracted to justify me in reversing the judgment complained of. It must be, and indeed is, admitted on all hands, that the vicar and his family ught properly to be accommodated with sittings in the church. The first averment, in substance, is as follows-that the accommodation now sought for is not for the vicar's family, but for his pupils. This is denied, and as there is no proof of it, I must dismiss it from my consideration. The next objection is, that the vicar was offered sufficient accommodation; but Looking at the plans, I cannot come to that conclusion. I do not think that the pew pointed out was fit for the purpose. Lastly, it is stated, that the proposed beats will inconveniently obtrude upon the space required on the occasion of the celebration of the holy No. 533, VOL. XI., NEW SERIES.

Acts, in which case the jurisdiction would be in the county court. But assuming that the Industrial and Provident Societies Acts ought to be applied to societies which might be registered under those acts, his Lordship thought that benefit building societies were quite distinct from the societies to which the Provident and Industrial Societies Acts applied. Those acts seemed to apply only to societies formed for carrying on or exercising any trade or labour. His Lordship thought that the winding-up order prayed for ought to be made.

Notes for reference—10 Jur., N. S., 505; 25 & 26 Vict. c. 87.

REDE v. OAKES.-Feb. 17.

Vendor and purchaser-Interest on deposit. Where a vendor's bill was dismissed, the Court, having regard to the circumstances, would not order interest to be paid on the deposit, but made no order as to the deposit, leaving the purchaser to his remedy at law for the deposit and interest.

In this case (reported 10 Jur., N. S., 1246) a bill by a vendor for specific performance was dismissed, and the deposit on the sale was ordered to be returned.

Selwyn and J. T. Humphry, for the defendant, now asked for a direction to be inserted in the order giving interest on the deposit (Anson v. Hodges, 5 Sim. 227;

k

SOUTHAMPTON STEAM-BOAT COMPANY v. RAWLINS.- church of Biggleswade.