CHAN.] Re LAFOREST, ex parte BELL. [CHAN. Ex parte The Dudley and West Bromwich | done in that event, it takes up the cases where there is Banking Company, re Hopkins, 8 L. T. Rep. N. S. 189. Reg. v. The Justices of Essex, 8 L. T. Rep. N. S. 275. The LORD CHANCELLOR.-It is a matter of constant regret to me that I could not adhere to the original resolution I formed of abiding by the entire Consolidation Act which was brought into Parliament in 1860. One of the difficulties, and not the least, attending legislation in this country is, that the parties who propose a Bill to Parliament have to consider what portions of it have a prospect of being carried, as well as the frame into which legislation ought to be thrown. The result is, that the entire Consolidation Act having been abandoned by the force of extrinsic circumstances, difficulties have arisen in consequence of the Act of 1861 leaving portions of the law unrepealed, and being obliged therefore to be fitted into and pieced on with the remnants of the original law. In some degree that has led to the difficulty here, because it has suggested topics of argument; but I think it will be found that the provision of the new law and the regulations of the old law, in this respect at least, are perfectly harmonious. It became necessary to alter the phraseology of the old law, by reason of the great extension given to the old law, in submitting all debtors, whether traders or non-traders, to the law of bankruptcy. The old law as it stood in 1849, with reference to traders, is beyond dispute, that from the time when the certificate was allowed, the discharge of the trader was complete, and after-acquired property therefore did not pass to his assignees. Now it will be found that the new law accomplishes the same thing, and the only thing requisite to be borne in mind for the entire appreciation of the provisions of the new law is that the words "order of discharge" denote two different things; and whether they are to be held to denote one thing or the other is to be determined by the context. The two things denoted by the order of discharge are these: first, the order made by the commissioner on the application of the bankrupt, which is made and prepared by the commissioner, and recorded in the proceedings. The other thing is, that further document, certificate, or order of discharge, which is formally drawn up at a subsequent time and handed over to the bankrupt. It would have been better if, in order to preserve different appellations for different things, the order of discharge when intended to denote the certificate before it was formally reduced into the shape necessary, in order to its being delivered to the bankrupt, had been called the "order for discharge;" and, if those words had been adopted, no possible ambiguity or difficulty could have arisen, because an order for discharge would have denoted the order made by the commissioner, subject to appeal; and the order of discharge would have denoted the order handed over to the bankrupt as an indemnity and a security to him for the future. There is no difficulty in determining upon any of these sections, which of these two things is intended to be referred to. Let us take the 157th section, for the 140th merely enacts that "the court shall appoint a public sitting for the bankrupt to pass his last examination, and also, unless the court shall otherwise direct, to make application for his discharge." The 157th section speaks of the case of a discharge being suspended, and then it says, "such discharge, when allowed." That clearly means such discharge, when granted by the commissioner after the time of such suspension has expired. Next we come to the 159th section. There the first part of the section speaks of the hearing of an application for an order of discharge, and what shall be done upon it. Then it contemplates the possibility of criminal proceedings being directed, and after providing for what shall be no such impediment to the granting of the order. Then it says: "In all other cases the order of discharge shall take effect immediately from its date, subject to the appeal herein provided." The only attempt at ar gument which produced any effect at the moment was the argument upon the words "immediately from its date," because, taking the 159th in connection with the 170th section, and assuming that the actual thing denoted by the words "order of discharge" was the same in both sections, the argument was that the order of discharge spoken of in the 159th section must be that thing which is directed to be drawn up at the expiration of thirty days, and directed to be dated after the end of that period of time. But that is not so. The order of discharge spoken of in the 159th section is the order pronounced by the commissioner, which has its appropriate and proper date as recorded in the proceedings in bankruptcy. Accordingly, I find it recorded that the order of discharge granted by the commissioner in this case bears date the 28th Nov. The entry is exactly correspondent to that of any other judgment pronounced by the court; and accordingly the entry declares, after reciting that the bankrupt had passed his last examination and made application for his order of discharge, that it was adjudged by the court "that the said bankrupt was entitled to such discharge, which was thereby granted." Well, now, when was that judicial act performed, and what was the effect of that judicial act? It was performed in the most complete manner, as far as the judge was concerned, on the 28th Nov. It was granted on that day, it was entered on that day, and that is the thing spoken of in the 159th section. Thus the words all have their appropriate effect. The order of discharge takes effect from the time when it is granted by the commissioner, and that being the particular day when it is recorded, it is said with propriety that it shall take effect "immediately from its date;" but, inasmuch as a time is allowed during which it is competent to any party interested to apply to the court to review the order, when it may be an nulled, suspended, or recalled, that condition is fulfilled by stating that it shall "take effect" subsequently to that period of appeal. Now we will go through some of the subsequent sections, and we shall find that the Legislature has interposed certain words in various places, because, having provided, as we have already found, that the order of discharge is to take effect from the time when it is pronounced, power being subsequently given to apply for a rehearing, it became necessary to provide that the order should take effect from that day, provided it be not within the time allowed for appeal, recalled, annulled, or suspended. Take the 161st section, "The order of discharge shall, upon taking effect, discharge the bankrupt," &c. That throws us back to the 159th section, and accordingly, when we have ascertained from that when the order is to take effect, these words are perfectly consistent. The order is to take effect from the day when it is granted by the commissioner. It is impossible to hold that the order of discharge spoken of in the 161st section can be the order of discharge which is afterwards to be delivered to the bankrupt, because it is said that, "the order of discharge shall, upon taking effect, discharge the bankrupt," &c. These words, "upon taking effect," were inserted to provide for the possibility of the order being suspended; because, if the order be suspended by the commissioner, the order can take effect only from the end of the period of suspension. Again, in the 162nd section, if a bankrupt, after the order of discharge takes effect, be arrested," &c. Why were these words "after the order takes effect" inserted? Why should not the production of the order of discharge by the bankrupt be sufficient? Because the writer knew well that the CHAN.] FLOYER V. BANKES. [ROLLS. egislature intended the words "order of discharge" | to be regretted that in this pauper case the course was o apply to the order as soon as it is pronounced by be Solicitors for the bankrupt, Biggenden; for the assignees, Aldridge and Bromley; for the executors, Chester and Co. ROLLS COURT. Reported by H. R. YOUNG, Esq., Barrister-at-Law. April 18 and May 4 and 23. FLOYER v. BANKES. The 5 & 6 Vict. c. 35, s. 103-The 16 of 17 Vict. c. 51, ss. 2, 17-Marriage-settlement―Jointure— Income-tax-Succession duty. The words of the 5 & 6 Vict. c. 35, s. 103, which provide (inter alia) that all contracts made or entered into for the payment of any interest, rent, or other annual payment in full, without allowing de duction for the income-tax, shall be utterly void, are clear in their meaning. They do not, indeed, apply to cases of mere bounty; but where there is a contract between the parties, then, as a matter of contract, an agreement to pay an annual sum of money without deducting income-tax is absolutely A void. marriage-settlement, executed before the passing of the 5 & 6 Vict. c. 35, provided that a jointure by way of two rentcharges in lieu of dower, thirds, and freebench, should be paid to the jointress without any deduction or abatement whatsoever on account or in respect of any taxes, charges, impositions, or assessments already charged or to be charged on the estate out of which it was to issue, or on the jointure in respect thereof. A term of years was then also created, and trusts declared of it to secure the jointure rentcharges, if in arrear, and the costs, damages, and expenses arising from the nonpayment, or the recovery thereof: Held, that the settlement was a contract within the meaning of that word in the statute; that, as the term of years was only created as a security for the due enforcement of the agreement entered into between the jointress and her husband, the operation of the statute was not ousted by the declaration of the trusts of the term, and that the jointress was therefore bound, notwithstanding the provisions of the settlement, to pay the income-tax in respect of her jointure. The 16 & 17 Vict. c. 51, s. 2, defines what dispositions and devolutions of property shall confer successions, ROLLS] FLOYER v. BANKES. [ROLLS. and the 17th section provides (inter alia) that no | in trustees (the now plts.) for a term of 500 years, contract made bonâ fide for valuable consideration upon trusts for the due management thereof. in money or money's worth, for the payment of money or money's worth after the death of any other person, shall create the relation of predecessor and successor between the person making such contract and the person to or with whom the same shall be made. H. Bankes died in 1834, and W. J. Bankes died in April 1855 unmarried, whereupon Geo. Bankes became tenant for life of the premises comprised in the 200 years' term, with remainder to his eldest son Edmund George Bankes in tail. In July 1855 G. Bankes and E. G. Bankes The above-mentioned jointure by way of the rent-executed a disentailing assurance, and the hereditacharges or annuities was made payable to the jointress if she survived her husband. The 16 & 17 Vict. c. 51, ss. 2 and 17, was passed in 1853. The husband died in 1856: Held, that the words "money and money's worth," in the 17th section of that statute, included the consideration of marriage; and that the jointress was not therefore liable to pay succession duty in respect of her jointure. This was a petition presented by the plts. in the suit, who were trustees of certain real estates, subject to a jointure by way of two rentcharges, to obtain a declaration as to how, and by whom, the income-tax and succession duty payable on such jointure were to be defrayed? The facts of the case were shortly these: In June 1810 certain real estates were duly limited to such uses as Henry Bankes and William John Bankes should jointly appoint, and in default of such joint appointment to the use of Henry Bankes for life, with remainders over. By a deed dated the 2nd June 1821 the said real estates were duly appointed by Henry Bankes and William John Bankes to such uses as they should jointly appoint, and in default to the use of Henry Bankes for life, with remainder to the use of William John Bankes for life, with remainder to the use of his first and other sons in tail male, with remainder to the use of George Bankes (the second surviving son of Henry Bankes) for life, with remainder to his first and other sons in tail male, with divers remainders over. ments comprised in the said term were assured to such uses as the father and son should jointly appoint, and in default to the uses declared by the deed of the 2nd June 1821, so far as the same were then subsisting. G. Bankes died in July 1856, leaving G. C. Bankes his widow, who thereupon became entitled to the jointure rentcharges of 8001. and 700%. This suit was instituted by the trustees of the 500 years' term in 1859, to obtain the direction of the court as to the management of the settled estates, when the question arose whether Mrs. Bankes was entitled to the jointure rentcharges free from the payment of any income-tax or succession duty? The jointress was not a party to the suit, but the petition was served on her, and also on the defts. Baggallay, Q. C. and C. Hall appeared for the petitioners, the plts. and trustees. Hobhouse Q. C. and Freeling appeared for the widow, and, with respect to the question of her right to receive her jointure free from income-tax, contended that the marriage-settlement in this case was not a contract within the meaning of the 103rd clause of the statute; and that by the terms of the contract, the jointress was entitled to her jointure free from the tax, as against the owners of the estate, who must therefore defray it. They cited 5 & 6 Vict. c. 35, s. 103; and No. 4, schedule A. rules 9 and 10; schedule (C) and (E); Festing. Taylor, 31 L. J., N. S., 36, Q. B. ; s. c. on appeal, 32 L. J., N. S., 41, Ex. Ch. ; 7 L. T. Rep. N. S. 429; But even if the settlement was a contract within the meaning of the 103rd section of the statute, the creation of the 200 years' term ousted the operation of the Act: Lord Lovat v. Duchess of Leeds, 2 Dr. & Sm. 62, s. c. 7 L. T. Rep. N. S. 36. They also cited Colbron v. Travers, 31 L. J, N. S., 257, C. P.; Selwyn, G. C. and G. Lovell, for the parties interested in the estates subject to the jointure, were not called upon. By a marriage-settlement, dated 7th June 1822, of George Bankes and Georgina Charlotte Nugent, Henry Bankes and William John Bankes, in exercise of the joint power of appointment reserved to them by deed of the 2nd June 1821, duly appointed, that after the marriage of said G. Bankes and G. C. Nugent, the hereditaments comprised in a certain term of 200 years thereinafter created (being the real estates herein before mentioned) should remain to the use, that G. C. Nugent might, in case she survived G. Bankes, receive during her life for her jointure, and in lieu of dower, thirds and freebench which she might otherwise have had out of her husband's freehold estates of April 18.-The MASTER of the ROLLS.-The arinheritance, a yearly rentcharge of 800l. to be issuing guments in this case adduced in support of the jointout of the term of 200 years, without any deduc- ress's contention, that she is entitled to her jointures in tion whatsoever on account of any taxes, charges, full, free from the payment of income-tax, turned upon &c. already imposed, or thereafter to be taxed, charged, the question whether the settlement, or arrangement, or imposed on the said hereditaments or on the said which was entered into for the benefit of the jointress, rentcharge of 800%., or on the said G. C. Nugent, amounted to an express contract within the terms of or her assigns, in respect thereof, by authority of Par- the 5 & 6 Vict. c. 35, s. 103 ? Now, I think the liament or otherwise howsoever, with powers of case cannot be put more favourably to the jointress distress, &c.; and to the further use, that in case of the than to assume for a moment that the Act in question deaths of H. and W. J. Bankes in the lifetime of G. C.-The Income-tax Act-had been actually introduced Nugent, and in case W. J. Bankes should leave no issue male, the said G. C. Nugent might receive the further yearly rentcharge of 7001. in addition to the previous rentcharge of 800l. to be issuing out of the same hereditaments, and without deduction for present or future taxes, &c., in such manner as was thereinbefore mentioned and appointed for the payment of the said yearly rent-charge of 8007. therein before limited," with the like powers of distress and entry. The marriage was shortly afterwards solemnised, and there were several children of the marriage. By a deed dated 3rd July 1821 the hereditaments comprised in the said were, with others, vested into the clause as to deduction in the deed. The statute says, in the 103rd section, "that all contracts made or entered into for the payment of any interest, rent, or other annual payment in full, without allowing deduction for the income-tax, shall be utterly void." Those words are clear, and I think the effect of them cannot be got rid of by the creation of the trust to raise the rentcharges and the costs and expenses relating thereto. The term of years was only crested as a security for the due enforcement of the agreement entered into between the jointress and her husband as to the rentcharges. The cases of Festing v. Taylor and Lovat v. The Duchess of Leeds were not cases of contracts; and the courts held that the payment of the income-tax might be excepted if a person chose to do so by way of bounty. The Act does not, indeed, apply to cases of mere bounty; but it provides that where there is a contract between the parties, then, as a matter of contract, an agreement for payment of an annual sum of money without deducting the incometax, is to be absolutely void. The cases of Colbron v. Travers and Davies v. Fitton which were cited, only make the case, as I take it, still more clear; because they decide that if there is a contract to pay an annual sum without deducting the incometax, that is void; but that, if the agreement be that if the income-tax is raised or reduced a lessee shall pay so much more or so much less rent, that is good; because that is not a contract to pay an annual sum without deducting the income-tax. In Colbron v. Tracers, the agreement was that a rent of 340l. should be paid by a tenant to his landlord; provided that, in case the income-tax was taken off, the tenant should pay only 3304. In Davies v. Fitton the question arose under the Tithe Rentcharge Act, 2 & 3 Will. 4, c. 119, & 13 (which, however, is similar to the 103rd clause of the Income-tax Act); and in that case Lord St. Leonards thought that an agreement by which a tenant was to pay 100%. rent, and in consideration of the tithe rentcharge an additional sum of 57., would be a valid contract under that Act. But all those decisions show that a contract to pay a sum of money annually, without deducting the income-tax, is not allowed by the Legislature. In the present case there was plainly a contract, and nothing but a contract; and the term of years was created, and the trusts of it were declared, for the mere purpose of securing the performance of that contract. I am therefore of opinion that the widow, the jointress in this case, is bound to submit to the payment of the income-tax in respect of her jointure rentcharges. The trustees and the defts. who are interested in the estates subject to the charges must have their costs out of the estates; but, as the jointress has failed in her contention, I cannot allow her to have her costs out of them. May 4 and 23.-Secondly, with respect to the question of succession duty. As the decision of that part of the case depended upon the construction of the 16 & 17 Vict. c. 51, which is entitled "An Act for granting to her Majesty duties on succession to property, and for altering certain provisions of the Acts charging duties on legacies and shares of personal estates," it is also necessary to state rather fully the provisions of that statute. By the 2nd section it was enacted as follows: that "every past or future disposition of property by reason whereof any person has or shall become beneficially entitled to any property or the income thereof upon the death of any person dying after the time appointed for the commencement of this Act, either immediately or after any interval, either certainly or contingently, and either originally or by way of substitutive limitation, and every devolution by law of any beneficial interest in property, or the income thereof, upon the death of any person dying after the time appointed for the commencement of that Act to any other person in possession or expectancy, shall be deemed to have conferred or to confer on the person entitled by reason of any such disposition or devolution a 'succession,' and the term successor' shall denote the person so entitled, and the term 'predecessor' shall denote the settlor, disposer, testator, obligor, ancestor, or other person from whom the interest of the successor is or shall be derived." By the 17th section, it was enacted that "no policy of insurance on the life of any person shall create the relation of predecessor and successor between the insurers and the assured, or between the insurers and Any assignee of the assured, and no bond or [ROLLS. contract made by any person bona fide for valuable consideration in money or money's worth, for the payment of money or money's worth after the death of any other person shall create the relation of predecessor and successor between the person making such bond or contract and the person to or with whom the same shall be made; but any disposition or devolution of the moneys payable under such policy, bond, or contract, if otherwise such as in itself to create a succession within the provision of this Act, shall be deemed to confer a succession." The Solicitor-General and Hanson appeared for the Commissioners of the Inland Revenue, and claimed the payment of the succession duty on the rentcharges or annuities, on the grounds that the 2nd section of the statute applied to every past or future disposition of property to take effect on the death of another person, however such disposition was created or effectuated; that reading the deed exercising the joint power of appointment as part of the settleinent, there was, in this case, as to the 800l. annuity, a succession to by Mrs. Bankes, as to one moiety from Mr. Henry Bankes; as to the other from Mr. W. J. Bankes; and as to the 700l. annuity, there was a succession in Mrs. Bankes from Mr. W. J. Bankes. They cited 16 & 17 Vict. c. 51, ss. 2, 4, 5, 7, 12 and 17; Attorney-General v. Floyer, 9 H. of L. Cas. 477; Yelverton's case, 5 L. T. Rep. N. S. 451; Attorney-General v. Lord Henniker, 7 Ex. 331; Sweeting v. Sweeting 1 Dr. 331. Hobhouse, Q. C. and Freeling, for Mrs. Bankes, insisted that she was not liable for the duty. The 17th section exempted all contracts made bona fide for valuable consideration from the payment of it; here was the valuable consideration of marriage; in addition to which Mrs. Bankes had released her right to dower thirds and freebench; and that was a contract for money's worth. They cited 16 & 17 Vict. c. 51, ss. 2 and 17; Lord Saltoun v. The Lord Advocate, 6 Jur. N. S. 713; s. c. 3 L. T. Rep. N. S. 40; Attorney-General v. Baker, 4 H. & N. 19; Oldfield v. Preston, 5 L. T. Rep. N. S. 650. Selwyn, Q.C. and G. Lovell for the owners of the estates subject to the rentcharges. Baggallay, Q.C. and C. Hall for the plts. and petitioners. The Solicitor-General, in reply, contended that the 17th section did not apply to cases of marriage-settlements, but to those of debtor and creditor. The following authorities were referred to by the M. R. :— Williams v. Sangar, 10 East, 66; Denn v. Diamond, 4 B. & C. 243; Brandling v. Barrington, B. & C. 467. May 23.-The MASTER of the ROLLS, after referring to the facts of the case as above stated, and observing, that the question as to the payment of the succession duty depended upon the construction of the 2nd and 17th sections of the 16 & 17 Vict. c. 51, and upon the consideration as to whether they related to the jointure rentcharges payable to Mrs. Bankes under her marriage-settlement, and reading those sections, continued thus:-The general effect of the 17th section is, that no contract for value ander which money is paid after the death of any person shall create the relation of predecessor and successor. It is clear that there is in this case a contract for value under which two annuities have become payable to Mrs. Bankes. Prima facie therefore the case comes within that clause. The rentcharges or annuities were not existing prior to the death of her husband, but they sprang up on his decease out of the family property, pursuant to a prior contract made in consideration of marriage. Although it is impossible to say that this case does not come within the strict words of the clause, it was argued that such a construction is not within the spirit, either of the 17th section, or of the statute generally. On the other hand it is clear, that the Act must be contrued strictly against the Crown, but liberally towards the subject; and Williams v. Sangar, Denn v. Diamond, and Brandling v. Barrington, are authorities in support of that construction. It was said, however, on behalf of the Crown, that this was not the species of contract within the meaning of the 17th clause; that it was not a contract in consideration of "money or money's worth for the payment of money or money's worth;" and that it would not have been any more contract for value, if the lady, or her father on her behalf, had paid 10,000l. to secure in return the payment of the annuities after the death of her husband. Suppose that she had paid 10,000l. to Mr. Henry Bankes and Mr. W. J. Bankes for the grant of the annuities. Could it have been then contended that this 17th section did not apply to such a case? Such a contention would have been impossible. But go one step further in advance, and let the consideration of marriage be added. Can that defeat the operation of the section, or affect the matter? Clearly not. But suppose marriage to be the only consideration. Can it be said that the statute was intended to work such a change in the law of the country as to declare that in certain cases marriage, regarded as a consideration, is one of a less valuable nature than money; or that it requires the superaddition of money to give it its full force-bearing in mind that such a result would have been affected, not by the express words of the Legislature, but by mere inference from them? It would be impossible to enumerate the evils which would flow from the construction that the words "money or money's worth" in the 17th section do not include the consideration of marriage. But it was well observed on behalf of the jointress, that under this contract Mrs. Bankes gave up her right to dower, thirds, and freebench, as a consideration for the grant of the annuities. It cannot, I think, be seriously argued that such a right is not one in the nature of "money or money's worth." The cases which were cited on behalf of the Crown, and in support of its claim to the succession duty, do not in my opinion support that claim. The present case is, in fact, untouched by authority; but I cannot help feeling a strong conviction that the words of the 17th section of the Act exactly govern the case; and that there is nothing in the rest of the statute to affect that opinion. Even if there were any other inconsistent clauses I should be inclined to concur with Lord Tenterden's observations in Brandling v. Barrington, 6 B. & C. 479, where he said that, "there is always danger in giving effect to what is called the equity of a statute; and that it is much safer and better to rely on and abide by the plain words, although the Legislature might possibly have provided for other cases had their attention been directed to them." The result therefore is, that in my opinion no succession duty is payable in respect of the two rentcharges or annuities. The costs of all parties (except the Crown) must come out of the estate. Solicitors for the parties: The Solicitor for the Inland Revenue; M. and T. Davidson; Gregory and Rowcliffes; and Lovell and Co. [ROLLS. May 7 and 8. ELLICE v. ROUPELL. Bill to perpetuate testimony-Admission by defts. of plts.' right to relief-Motion by defts, to stay proceedings in the suit refused with costs. Where the defls. to this suit, which was one to perpetuate testimony, put in an answer to the bill which virtually admitted the plts.' right to the relief they prayed, and afterwards moved to stay all further proceedings in the suit on the ground that there was another pending, in which the subject-matter of this could be immediately dealt with; it was Held, that such motion must be refused, and with costs. N.B.-The proceedings in the suit were afterwards, however, staid by consent of all parties. This was a motion by the defts. in the suit for an order to stay all further proceedings for the perpetuation of testimony as prayed by the bill, and that the defts.' costs of suit might be taxed and paid. The facts of the case sufficiently appear from the report of it, ante p. The pits. had filed replication, and were about to examine witnesses with a view to the perpetuation of their testimony. The defts. now moved, as above stated, upon the grounds that by the institution of the suit before Wood, V.C., the plts. had themselves shown that the subject-matter of this suit was capable of immediate investigation, and that the defts. ought not to be oppressed by two concurrent suits for the same object. The Solicitor-General, Selwyn, Q. C. and C. Swanston supported the motion; and cited Blinkhorne v. Feast, Dick. 153; Anon. v. Andrews, Barnardiston's Chan. Rep. 333. Baggallay, Q. C., Hobhouse, Q. C. and Cotton, for the plts., were not called upon. May 7.-The MASTER of the ROLLS.-This case is not only singular in its own circumstances, but seems destined to raise a number of points of pleading. The present motion is substantially nothing more than the argument of the plea over again. That was admitted in the argument; but then it was said that on this occasion the defts. are free from the technicalities attending the plea. Some rules of pleading must however be preserved. Here the defts. had put in an answer to the plts.' bill, admitting the right of the latter to examine witnesses in perpetuis rei memoriam-admitting, in fact, the plts.' right to the whole of the order usually made in suits of this nature. Is it now open to them to say to the pits. that they are not entitled to make use of that order, but that all further proceedings under it ought to be stayed? Supposing that a plt. files a bill to perpetuate testimony, and it appears on the face of it that he can properly bring the matter before a court of law; in that case the bill would be open to a demurrer. But suppose that the deft. instead of demurring answers the bill. Can he afterwards move to stay proceedings on the ground that the matter is capable of being tried at law? It is obvious, to my mind, that in such a case this court would say: "You onght to have availed yourself of this defence by demurrer." And I think the case would not be different, if proceedings at law had been actually commenced. This court will not allow a deft. who has admitted the plt.'s title to the usual order in a suit like the present, afterwards to say that he was wrong in making that admission; and to ask that further proceedings under the order may be stayed. No instance of an order such as is now moved for can be found in the books. The propriety of such a motion as this must have been often considered; for suits of this nature were, under the old practice of the court, usually prolonged for a considerable time, and pending those proceedings the obstacle which |