»- : :fA, :«W^p^"^- -^■^M!m: % .,f' X Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS ^^^ AN ANALYTICAL DIGEST OF THE CASES PUBLISHED IN THE TSCEW SERIES OF THE LAW JOURNAL REPORTS AND OTHEE REPORTS ,, IN THE COURTS or COMMON LAW AND EQUITY, Mnti in ISanferuptcg, IN THE HOUSE OF LORDS, THE PRIVY COUNCIL, THE ECCLESIASTICAL COURTS, AND AT NISI PRIUS, From MICHAELMAS TERM 1850 to TRINITY TERM 1855 INCLUSIVE. By FRANCIS TOWERS STREETEN, Esq. AND GEORGE STEVENS ALLNUTT, Esq. B A RBISTERS-AT-L AW. LONDON : Printed by James Holmes, i, Took's Court, Chancery Lane. PUBLISHED BY EDWARD BRET INCE, 5, QUALITY COURT, CHANCERY LANE. 1857.' This DIGEST is in continuation of Six others, published at different times, con- taining the Cases reported in the Law Journal Reports, and other contemporary Reports since the year 1822, either of which may be had as published, at the following prices : — First, 1822 to 1828, price 11. lis. 6d. boards. Second, 1828 to 1831, price 15s. boards. Third, 1831 to 1835, price 11. 5s. boards. Fourth, 1835 to 1840, price 11. 10s. boards. Fifth, 1840 to 1845, price 11. 10s. boards. Sixth, 1845 to 1850, price 11. 10s. boards. A LIST OF THE REPORTS AND ABBREVIATIONS IN THIS DIGEST. Abireviations. Bail CO. Beav. Car. & K. Com. B. Rep. . Dears. C.C. De Gex, M. & G. De Gex & S. . Den. CO. Drew. B. &B. . Exch. Rep. Hare H.L. Cas. Kay . . Kay & J. L. M. & P. P.O. Law J. Dig. Law J. Rep. (n.s.) Chanc. Law J. Rep. (n.s.) Bankr. Law J." Rep. (n.s.) Q.B. . Law J. Bep. (n.s.) CP. . Law J. Rep. (n.s.) Exch. . Law J. Rep. (n.s.) M.C . Law J. Stat. . Mac. & G. Macq. H.L. Cas. Moore's In. App. Moore's P.O. Q.B. Rep. Rob. Ec. Rep. Sim. N.S. Sm. & G. Shorts. Courts. Bail Court Cases Queen's BencL Beavan's Reports Chancery. ( Nisi Prius, Crown Cases, Carrington and Kirwan's Reports . . j and Crown Cases re- ( served. Common Bench Reports . . . Common Pleas. Deaisley's Crown Cases . . . Crown Cases reserved. De Gex, Macnaghten and Gordon's Re- j Chancery and Bankruptcy. De Gex and Smale's Reports . . . Chancery. Denison's Crown Cases .... Crown Cases reserved. Drewry's Reports Chancery. EUis and Blackburn's Reports . . Queen's Bench. Exchequer Reports . . . . Exchequer. Hare's Reports . . . . - . Chancery. House of Lords' Cases .... House of Lords. Kay's Reports Chancery. Kay and Johnson's Reports . . . Chancery. Lowndes, Maxwell and PoUock's Practice 1 Queen's Bench, Common Cases f Pleas and Exchequer. Law Journal Digest. Law Journal Reports, New Series . . Oliancery. • Bankruptcy. Queen's Bench. Common Pleas. Exchequer. Law Journal Statutes . Macnaghten and Gordon's Reports ( Macqueen's House of Lords' I (Scotch Appeals) Moore's Indian Appeals Moore's Privy Council Oases . Queen's Bench Reports . Robertson's Ecclesiastical Reports Simon's Reports, New Series Smale and GifFard's Reports . ( Magis- ■ < trates' ( Oases. Queen's Bench, Common Pleas and Exchequer. Abridgment of Statutes. Chancery. I House of Lords. Privy Council. Privy Council Queen's Bench. Ecclesiastical. Chancery. Chancery. ^-^ Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017963459 TABLE OF TITLES. ABATEMENT. Or Action. By Death of Pmiies, 1 £y Death of Parties between Verdigt and Judg- ment, 1 £y Marriage, 1 By Bankruptcy and Insolvency, 1 Pleas in. Nonjoinder and Misjoinder of Parties, 1 ABDUCTION, 1 ACCORD AND SATISFACTION. What amounts to genekallt, 2 ExEouTOKY Accords — Pereoemanob, 2 By a Stranger, 3 Pleadings, 4 ACCOUNT. Action op Aooodnt, 4 When an Account will be decreed in Equity. In general, 4 To clear an Estate, 5 Destruction of Accounts, 5 ACCOUNT STATED. What amounts to, 5 Bakon and Feme, S bxboutors, 6 Pleading. Form of Count, 7 General Issue, 7 ACCOUNTANT GENERAL, 7 ACKNOWLEDGMENT.— See Baron and Feme — Limitations, Statute of. ACTION. When maintainable. Irish and Scotch Judgments, 7 Foreign Judgments, 8 Colonial Judgments, 8 County Comet Judgments, 9 Disoiedience to Judges Orders, 9 Former Recovery, 9 Another Suit pending, 10 NotvMhstandAng Statutable Remedy, 10 Suspension of Right of Action, 11 Malicious Acts and Legal Procedure, 11 Against Puiblic Officer for Personal Irijwry, 12 Breach of Agreement to r^er, 12 Debentmrea, 12 Circuity oe Action, 12 Notice of Action. To Judges and Officers of Inferior Courts, 12 To Magistrates, 13 To Revenue Officers, 13 Under Public Hecdth Act, 14 Under Malicious Trespass Act, 14 Form and Service, 14 Form of Action. Assumpsit or Case, 14 Assumpsit or Trespass, 15 Case or Covenant, 15 Case or Trespass, 15 ACCUMULATION.— See Thellusson Act. ADMINISTRATION. — See Executor and Administrator. ADMINISTRATION OF ESTATE IN CHAN- CERY. What Debts may be claimed, 15 Interest on Debts, 15 Marshalling Debts, 15 What are Legal AssBts, 16 Marshalling Assets, 16 Practice, 17 ADMIRALTY, COURT OF, 17 See Stat. 17 & 18 Viot. u. 78. — Prohibition — Ship and Shipping. ADVANCEMENT, 17 ADVOWSON, 17 AFFIDAVITS,— See Phaciicb, in Equity. Form of, generally, 18 Entitling, 18 Deponent's Name and Addition, 18 Several Deponents, 18 Illiterate Persons, 18 Interlineations and Erasures, 18 Before whom sworn. In general, 18 Abroad, 18 Jurat, 18 Filing and taking off the File, 19 When receivable, 19 Exhibits, 19 ALDERMEN OF LONDON.— See Justice op THE Peace. ALE AND BEERHOUSES. Licence. False Certificate to obtain, 19 Removal of, by Certiorairi, 19 Keeping open at Improper Hours, 19 Gaming, 20 Penalties, to whom payable, 20 ALIEN. Who are Aliens, 20 Plea op Alien Enemy, 20 AMBASSADOR, 20 AMENDMENT. Misjoinder of Defendants, 21 Particulars in Plaint in County Court, 21 Pleadings framed to embarrass, 21 Declarations, 21 TABLE OF TITLES. Eeoobds after Plea op Nul Tiel Record, 21 Entry of Verdicts and Judgments, 21 After Payment into Court and Accept- ance BY Plaintiff, 21 At Nisi Prius. In general, 11 In Cases of Variance under 3 ility, 43 ATTACHMENT. Fob Contempt op Process and Orders, 43 Practice, as to Affidavits and Rules, 44 Foreign Attachment, 44 Of Debts by Judge's Order, 45 ATTAINDER, 45 ATTORNEY AND SOLICITOR. Articled Clerk. Service under Articles, 46 Premium and Enrolment of Articles, 46 Admission and Re-admission, 46 Change op Name on the Roll, 46 Certificate. Renewal, 47 Effect of acting without, 47 Eights and Privileges, 47 Duties and Liabilities. In general, 47 Summary Jurisdiction over. At Law. Attachment, 48 Striking off the Boll, 48 In Equity. Orders to pay over Money, 48 , Striking off the Boll, 48 To conduct Suit to its Termination, 48 Careof Clients Papers, 49 Negligence, 49 On Undertakings, 49 Expenses of executing Process, 50 TABLE OF TITLES. Retainer and Authority to institute Pbo- cebdinqs, 50 Change of, 50 deahnas with client, 50 Bill of Costs. Delivery of, 52 Heading and Contents of, 52 Taaaiion of. In general, 53 What Bills are taucable, 55 Order of course for, wider 6 utt/ to account, 608 As regards third Persons, 609 Power and Authority op the Agent, 610 PEINCIPAL AND SUEETY, 611 PBISONER, 614 PRODUCTION AND INSPECTION OE DOCUMENTS. In general, 614 Irrespective of the Statute, 616 Under the Statute, 616 PROHIBITION, 618 PUBLIC ENTERTAINMENTS, 619 PUBLIC HEALTH, 619 QUO WARRANTO, 620 RAILWAY, 620 RAMSGATE HARBOUR DUTIES, 626 RAPE, 626 BATE. Poor Bate. Validity of, 626 Persons and Property rateable. In general, 627 Exemption mider 6 cfc 7 Vict. c. 36, 631 RateaUe Value a/nd Principle of Assessment, 633 Appeal against, 637 Church Rate, 637 County Rate, 637 Borough Rate, 638 Highway Rate, 638 Lighting, Watching and Paving Rates, 639 Sewers Rate, 640 Distress foe Rates, 640 RECEIVING STOLEN GOODS, 640 RELEASE, 641 RENTS, 642 REPLEVIN, 642 REVENUE. Income Tax, 643 Customs, 643 ROBBERY, 644 SALE, 644 SCIRE FACIAS, 645 SEDUCTION, 645 SEQUESTRATION, 645 SESSIONS. Appeal. Bight of, 646 Notice of, 646 Practice on, 646 Orders. Erroneous Procedure, 646 Enforcimg, 646 SET-OFF, 647 SETTLEMENT. Generally, 648 Construction op, 648 Covenant to settle, 652 Settlement by the Court of Chancery, 654 Portions, 654 Jointure, 655 Rectifying, 655 SEWERS, 655 SHERIFF. Right to Fees, 656 Duties and Liabilities. Escape, 666 Pxtwm, 666 Extortion, 656 ActsofBaiL^, 656 Receipts of Pimes at Sessions, 657 TABLE OF TITLES. LamdlonTs Bent, 657 Possession for UnremonahU Time, 657 SHIP AlifD SHIPPING. Chakter-Party, 657 Insurance, 660 Bill of Lading, 663 Cargo, Sale or, 663 OWNBES, 665 Master, 666 Pilot and Pilot Act, 667 Seamen, 667 Passengers Act, 668 Registry, 668 Sale and Transfer, 669 Freight, 669 Demubragb, 672 Habbodr and other DnES, 672 Lien and Mortgage, 672 Collision and Damage, 673 SHOOTING AT THIEVES, 674 SIMONY, 674 SLANDEK. When actionable, 674 When Damage must be proved, 674 Peivilbged Communications, 675 Evidence, 675 SOLDIERS, ENLISTMENT OF, 675 SPECIFIC PERFORMANCE. When decreed, 675 When EEFnsED, 678 Pbaotice in Suit foe, 682 STAMP. Agreements, 683 Bonds, 684 Conveyances, 684 Deeds, 685 Mortgages, 685 Settlements, 685 Receipts, 686 Obdbe for Payment out of Particular Fund, 686 Newspapers, 686 Denoting Stamp, 686 STATUTE, CONSTRUCTION AND OPE- RATION OF, 686 STOCK. Action for Re-delivbrt of Stock, 687 Effect of Charging Order, 688 Stock-Jobbing Act, 688 STOPPAGE IN TRANSITU, 688 SUBPCENA.— See Witness. SUIT AT LAW AND IN EQUITY, 689 SUITORS' FEE FUND, 689 SURGEON AND APOTHECARY, 689 TENANT FOR LIFE, 689 THELLUSSON ACT, 690 TITHES. Modus, Exemption and Composition, 691 Commutation Acts. Award, 692 Bent-eharge, 693 Merger, 693 Statute of Limitations, 693 TORQUAY MARKET ACT, 694 TREES, 694 TRESPASS. When maintainable, 694 Pleadings, 695 Damages, 696 TROVER. When maintainable, 696 Conversion, 697 Pleadings and Evidence, 698 TRUST AND TRUSTEE. Trust. Constitution, 698 Construction, 699 Breach of, 700 Trustee. Appointment of, 703 Semoval and Change, 704 JAdbility and Disability, 704 Powers, Sights and Duties, 707 Investment by, 708 Disclaimer, 710 Release of, 710 Trustees' Relief Act. Construction of, 710 Practice under, 710 Cestui que Trust, 711 Trustee and Mortgagee Acts. Construction of, 711 Practice under, 713 TURNPIKE, 714 UNDUE INFLUENCE, 716 UNIVERSITY, 717 USE AND OCCUPATION, 717 USURY, 717 VENDOR AND PURCHASER. Contracts and Conditions of Sale, 719 Title, 725 Warranty, 727 Lien of Vendor, 727 pueohasee. Sights and Protection of, 728 Liabilities and Duties, 728 Conveyance to, 729 Intebest on Puechase-Money, 729 Costs, 731 VENUE, 731 VESTRY, 732 VOLUNTARY CONVEYANCE AND SET- TLEMENT, 732 WARRANT AND ORDER, 734 WARRANT OF ATTORNEY, 734 WARRANTY, 735 WASTE, 735 WATCHING AND LIGHTING, 736 WATER AND WATERCOURSE, 736 WATERMEN, 737 WAY, 738 WEIGHTS AND MEASURES, 739 TABLE OF TITLES. WILL. CONSTEUCMON OF WiLLS. Oeneral Points, 740 Power to anoint Trustees, 754 Conversion of Perishxhle Property, 764 Misdescription and Ambiguity, Evidence to ea^lain, 756 Validity. Attestation, 756 A Iteration and Interlineation, 756 Establishing, 757 Publication and Republication, 757 REVOCATIOlir AND Canokllation, 757 Spoliation, 758 Codicil, 758 Election under, 759 WITNESS. Competency, 760 Pkivilege, 760 Commission and Oedeb to examine, 760 Inteebooatomes, 761 Disobeying SnBP(ENA, 761 Expenses, 761 WORK AND LABOUR, 762 WRIT OF TRIAL, 762 WRIT, DE CORONATORE ELIGENDO, 762 WRIT, NE EXEAT REGNO, 762 AN ANALYTICAL DIGEST op THE CASES REPOETED AND PUBLISHED From Trinity Term 1850 to Michaelmas Term 1855, AND CONTAINED IN THE LAW JOURNAL REPORTS, ^nir otSer (Kommporarg Heports; WITH REFERENCES TO STATUTES AND RULES OF COURT WITHIN THE SAME PERIOD. ABATEMENT. [See Alies — Nuisance.] (A) Of Action. (a) By Death of Parties, {b) JBy Death of Parties ietween Verdict and Judgment. (c ) By Marriage. (d) By Barikrwptcy a/nd Insolvency. Pleas in. (a) Nonjoinder cmd Misjoinder of Parties. (B) (A) Of Action. (a) By Death of Parties. [See IS & 16 Vict. c. 76. ss. 40, 135, 136 138, 139, 140.] (6) By Death of Parties between Verdict cmd Judg 137, [See IS & 16 Vict. c. 76. ». 139.] The Court will not depart from a general rule of practice in order to do substantial justice in a parti- cular case. The Court gives a party leave to enter judgment nwnc pro twno after the expiration of two terms, only when the delay has been the act of the Court itself. Therefore, where the executrix of a plaintiff (who had died after verdict) was unable to get probate of the will on account of a caveat entered in the Ecclesiastical Court by the defendant for the purpose of delay, this Court, though reluctantly, re- fused to give leave to enter judgment mmcpro tunc DieEST, 1850—1855. after the expiration of two terms. Free/ina/n v. Tra/Rch, or Tranah, 21 Law J. Eep. (n.s.) C.P. 214 ; 12 Com. B. Rep. 406. (c) By Ma/rriage. [See 16 & 16 Vict. o. 76. ». 141.] (d) By Bankruptcy and Insolvency of Plaintiff. [See IS & 16 Vict c. 76. b. 142.] (B) PlEAS IN. (a) Nonjoinder and Misjoinder of Parties. [See IS & 16 Vict. c. 76. ss. 34—40.] ABDUCTION. A girl under sixteen having been persuaded by the prisoner to leave her father's house, and go away with him without her father's consent, in pursuance of the arrangement between them, left her home alone and went to a place appointed. There the prisoner met her. They then went away together to a distant place, not intending to return: — Held, that there was a "taking" of the girl by the prisoner within the meaning of the statute 9 Geo. 4. c. 31. s. 20. when he met her at the appointed place, and went away with her; and that there was then a taking of her out of the possession of her father, as until the pri- soner took her, she had not absolutely renounced her father's protection, but would presumably have returned home had she failed to meet the prisoner. Regvna v. Mamhtelow, or ManJdletow, 22 Law J. Eep. (N.s.) M.C. 115; 1 Dears. C.C.R. 159. B ACCORD AND SATISFACTION. ACCORD AND SATISFACTION. (A) What amounts to qeneballt. (B) ExEcnTOKT Accords — Performance. (C ) By A Stranger. (D) Pleadings. (A) What amounts to generally. In assumpsit, the first count stated that A and B were tenants of certain chambers to one C at a cer- tain rent, payable quarterly, and that, in considera- tion that A and B would underlet the chambers to D at a certain rent, payable quarterly, D promised A and B that he would pay the said rent to C, and that if he did not do so he would indemnify A and B in respect thereof and pay the same to them ; and the breach assigned was non-payment by D of the rent due from A and B to C. Plea, that before the rent came due from A and B to C it had been agreed between A, for and on behalf of himself and B, with his authority, and D, that D should deliver up the possession of the chambers to A, and that in consideration thereof D should be discharged from further liability for rent, and that D did accordingly deliver up possession to A which he, on behalf of himself and B accepted : — Held, that this set up a good defence by way of executed contract. Smith V. Lovell, 20 Law J. Eep. (n.s.) C.P. 37; 10 Com. B. Kep. 6. The indorsee of a bill of exchange is entitled to proceed, in an action against the acceptor, for the recovery of costs, though, pending the action, pay- ment in full satisfaction of the amount of the bill with interest, and all monies due thereon, be made hy another party to the bill and accepted by the plaintiff. Where, therefore, to a declaration against the acceptor of a bill of exchange for 491. Ifo. in- dorsed by W T to the plaintiff, the defendant pleaded, first, rum accepit; secondly (puis darrein, continuance), that, after the pleading the first plea, W T had paid to the plaintiff, then being the holder of the bill, and the plaintiff had accepted 601., being the full amount of the bill, and all interest due thereon, in full satisfaction and discharge of the said bill, and of all monies due and payable on account and in respect thereof, — Held, on demurrer, that the plea was no bar to the further continuance of the action. Goodwin v. Cremer, 22 Law J. Rep. (n.s.) Q.B. 30. To a declaration in covenant on a bond, the defen- dant pleaded that after the making of the bond, and before any of the breaches of covenant alleged, M and others as his sureties executed and delivered to the plaintiffs another bond (to the same effect as that declared upon) in full satisfaction and discharge of the bond in the declaration mentioned, and of all covenants, &c. therein contained, and that the plaintiffs then accepted the said other bond in full satisfaction and discharge of the bond in the decla- ration mentioned and of all covenants, &c. -. Held, on demurrer to this plea, that it was not good either by way of accord and satisfaction, or of release. Ber- wick-upon-Tweed (Mayor, &c) v. Oswald; Same v. BenUm; and Same v. Dobie, 22 Law J. Rep. (n.s.) CI.B. 12a ; 1 E. & B. 295. In an action upon a covenant to pay upon a con- tingency, an accord executed before the contin- gency happened, is a bad plea. Bealey v. Spence, 22 Law J. Rep. (sr.s.) Exch. 249 ; 8 Exeh. Rep. 668. To a declaration for work and labour, the defen- dant pleaded that, after the cause of action, and before suit, the plaintiff levied a plaint against the defendant in a county court for 601. : that defendant being then and at the time of the accruing of the cause of action for which the plaint was levied, an infant, gave notice that he should defend himself against the plaint on that ground, and that before trial in the county court, the plaintiff and defendant agreed that the defendant should pay the plaintiff's costs and 301., and that the plaintiff should accept the 30/., and the performance by the defendant of the agreement in satisfaction as well of the cause of action for which the_plaint was levied as of all other causes of action which the plain- tiff then had against the defendant. Averment of payment of 301. and costs before suit, and acceptance by the plaintiff in pursuance of the agreement : — Held (affirming the judgment below, 23 Law J. Rep. (N.s.) C.P. 41; 14 Com. B. Rep. 118), that assum- ing the plaintiiF's claim to be for a liquidated demand, and that the defendant was not an infant, the plea shewed a good satisfaction ; as the defendant, besides paying the smaller sum, abandoned his defence of infancy in the county court, which the plaintiff other- wise would have had to litigate. Cooper v. Parlcer, (in error) 24 Law J. Rep. (N.s.) C.P. 68 ; 15 Com. B. Rep. 822. (B) Executory Accords — Perpoemanoe. A declaration in assumpsit, after stating that before and at the time of the making of the promise there- inafter mentioned, an action on the case and an action of trespass at the suit of the plaintiffs against the de- fendant, were pending in the Court of Queen's Bench, alleged that it was agreed between the plaintiffs and the defendant that the said actions should be settled and all proceedings therein stayed, and that the defen- dant should pay to the plaintiffs 40/. in respect of the costs of the said actions and 236Z. 9s, in part of damages, and the plaintiffs should receive ftom cer- tain persons named the sum of 263/. \\s., or in case of their default, then that the defendant should make good that sum also, in which case the defendant was to be entitled to do certain other things stated ; that although the plaintiffs had always performed the said agreement on their part, and confiding in the said promise of the defendant, did upon the making of the same, wholly cease to prosecute the said actions and each of them, and had thence continually hitherto stayed all proceedings therein ; and although a rea- sonable time for the defendant to pay the said sums of 40/. and 236/. 9s. had elapsed before the com- mencement of the suit, yet, &c.: Held, on motion in arrest of judgment, that there appeared a good consideration to support the defendant's promise, and that performance on the part of the plaintiffs was sufficiently averred. Crowtlier v. Farrer, 20 Law J. Rep. (N.s.) Q.B. 298 ; 15 Q.B. Rep. 677. A plea to the further maintenance of an action on the case stated, that it was agreed between the plaintiffs and the defendants that the defendants should do certain things, and that the action and causes of action included in the same should be settled, satisfied, discharged and terminated by the arranffement and agreement before mentioned. The plea then averred performance by the defendants of ACCORD AND SATISFACTION. 3 some of the things, and readiness and vdllingness to perform the others : — Held, that the plea was bad, as it did not distinctly aver satisfaction or that the plaintiffs accepted the agreement in satisfaction and discharge of the causes of action, HaXl v. Fhckton, (in error), 20 Law J. Rep. (n.s.) Q-B. 208; 16Q.B. Rep. 1039. A declaration stated a submission to arbitration under seal and an award, whereby the defendant was ordered to pay to the plaintiff S,000l by four instal- ments, the first of which was to be paid on the 1st of January and the last on the 1st of July 1851, and alleged as a breach the non-payment of SOOt parcel of the S,000i. Plea, that after a breach of the award by non-payment of the first instalment, and before any further insteilment had become due, it was agreed between the plaintiff and defendant that the plaintiff should accept in satisfaction and discharge of the sum awarded, and of all causes of action in respect there- of, and of the said breach, 4,000i. to be paid in four instalments, the third of which, 1,250?., was to be paid on the Uthof April 1851, and the last on the 14th of June 1851 ; and that the plaintiff accepted the said agreement and performance thereof in satisfaction and discharge of the said sum awarded to him, and of all causes of action, &c. ; and that the defendant paid the first and second of such instalments on the days agreed upon, and paid l,250i. on the 14th of April 1851, which the plaintiff then accepted in satisfaction and discharge of the third instalment, and paid the re- sidue on the 14th of June ; and that the plaintiff ac- cepted the said sum of 4,000Z. and the payment there- of by the said instalments on the several days on which they were paid, in pursuance of the said agree- ment. Issue thereon. The submission, award and agreement were proved as alleged in the declaration and plea. The defendant paid the first and second instalments on the days specified in the agreement; but the third instalment of 1,250?. was not paid until the 19th of April, when the plaintiff refused to receive it except on account of the 6,000?. due under the award, assigning as his reason not that the payment was made on the wrong day, but that the defendant would not sign a letter which the plaintiff had no right to require. The last instalment was duly paid on the 14th of June. The jury found that the plea was proved : — Held, that the action being brought, not upon the submission, but upon the award, the plea could be sustained without shewing an agree- ment under seal ; that the non-payment of the first instalment due under the award was a breach of the whole contract to perform the award, and that the plea was, therefore, a good answer to the action by way of accord and satisfaction, the agreement being for payment of a smaller sum at an earlier day; and that the payment of the third instalment on the 19th of April, having been accepted by the plaintiff as payment on the 1 4th, was a performance of the agree- ment. Smith v. TrowadaU, 23 Law J. Rep. (H.s.) Q.B. 107 ; 3 E. & B. 83. Several matters in difference existing between the plaintiff and defendants, some of which were the sub- ject of an action, it was agreed between them that in consideration that the defendants would consent to refer to arbitration the matters of the action, the plaintiff would accept such agreement in satisfac- tion of all damages sustained by him in respect of the othi'^r matters : — Held, that the agreement and its performance was a good bar to an action in re- spect to the last-mentioned matters. Williams v. London Commercial Escchamge Co., 10 Exch. Rep. 569. A declaration stated, that the defendant agreed to deliver to the plaintiffs 600 loads of Dantzic tim- ber, and although the defendant delivered, and the plaintiffs accepted, 143 loads of other timber as and for so much of the timber to be delivered, yet the defendant did not deliver the residue. Plea, that after the right of action, and before the suit, it was mutually agreed that the defendant should deliver certain timber, part of the cargo of the ship J, in the place of a like quantity by the contract to be delivered, and that the defendant should make up the balance by delivery of such quantity of suitable timber out of certain other ships ; and that such deli- very of the two parcels of timber should be accepted and received by the plaintiffs in full satisfaction and discharge of all causes of action upon the contract in the declaration. Averment, that in part performance of the agreement in the plea the defendant delivered, and the plaintiffs accepted, 143 loads of timber from the ship J. in satisfaction of the causes of action as to that quantity in the contract ; and that afterwards, and before suit, he duly tendered to the plaintiffs such quantity of suitable timber out of other ships to make up the residue in the contract mentioned, which the plaintiffs refused to accept ; and the defen- dant was thenceforth ready and willing to deliver to the plaintiffs the last-mentioned timber : — Held, that the plea was bad, as it did not shew an accord and satisfaction of the whole cause of action ; and that it could not be taken distributively (under section 75. of the Common Law Procedure Act, 1852) as an answer to any part. Gabriel v. Dresser, 24 Law J. Rep. (n.s.) C.P. 81; 15 Cora. B. Rep. 622. (C) By a Steanger. To an action of debt on simple contract, the defen- dant pleaded that after the accruing of the debts and causes of action, and before suit, the plaintiff drew a bill on one A B,who accepted the bill, and delivered it to the plaintiff for and on account of the said debts and causes of action, and that the plaintiff received it from A B on such account ; that the plaintiff, before suit, indorsed the bill to C D, who was still the holder and entitled to sue A B thereon : Held, a good answer to the action Wankford v. Wanli- ford, Ayloffe v. Scrimpshire, and Stracey v. the Ba/rik of England considered and explained. Belshaw v. Bush, 22»Law J. Rep. (n.s.) C.P. 24; 11 Com. B. Rep. 191. In an action for work done, the defendants pleaded that the work was done under an agreement made by the plaintiff with the defendants to build a church on certain terms; that the plaintiff stopped the works until another agreement was entered into with T P for completing the work; that T P paid the consideration-money under the second agree- ment; and that the plaintiff accepted the second agreement, and the performance thereof by T P in full satisfaction and discharge of the agreement between the plaintiff and the defendants: — Held, that this plea was bad in substance, because it did not shew that the agreement and payment made by T P were made on behalf of the defendants, or that they adopted them; the case thereby being 'distin> ACCORD AND SATISFACTION— ACCOUNT. guishable from Belshaw v. Bmsh. James v. Isaacs, 22 Law J. Kep. (N.s.) C.P. 73; 12 Com. B. Kep. 791. To an action by the indorsees of a bill of exchange, the defendant pleaded that the bill was an accom- modation bill; that the drawer indorsed the bill and other bills to the plaintiffs as security for the repayment to them of 301. advanced by them to him, and that the biU was satisfied by payment to them by the acceptor of one of the other bills of the money so advanced : — Held, that the plea was no bar to the further maintenance of the action, the payment having been made by a stranger, and not having been ratified by the defendant. Kemp v. Balls, 24 Law J. Rep. (N.S.) Exch. 47; 10 Exch. Rep. 607. (D) PlEADINGS. [Aa to averments of performance, see (B) ExEOU- TOBT AOOOKDS.] To an action upon -certain bills of exchange, drawn by M & Sons upon and accepted by the defendant, and payable to the plaintiif at certain periods after date, the defendant pleaded that after the bills came due M & Sons made an agreement with the acceptor to discharge him on receiving 2«. 9d. in the pound, upon (inter alia) the said acceptance, in consideration of the payment of a certain specified sum in settlement of their differ- ences of account, and that the plaintiff took the bills after the agreement. The plea contained an averment that M & Sons were the holders of the bills at the time the agreement was made, and that they afterwards delivered them to the plaintiff. The replication traversed the former of these allegations : — Held, that although the replication admitted a delivery of the bill by M & Sons to the plaintiff after the making of the agreement, that it did not admit such a delivery as to give the plaintiff a new title to the bill, and consequently, that the replica- tion was good so as to put in issue a substantial aver- ment in the plea. Gorlelt v. Booker, 5 Exch. Rep. 197. ACCOUNT. [See Leqact.] (A) AoTiOH OF AoconNT. (B) When an Account will be decreed in Equity. (a) In general, (5) To clear an Estate. (c) Destruction of Accounts. (A) Action of Account. If one of two tenants in common solely occupy the land, farm it at his own cost, and take the pro- duce for his own benefit, his co-tenant cannot main- tain an action of account against the former, under the statute 4 Anne, u. 16. s. 27, as his bailiff, by reason of the former having received more than comes to his just share and proportion. The statute applies to cases where rent or payment in money or in kind due in respect of the premises, is received from a third party by one co-tenant, who retains for his own use the whole or more than his proportional share. Menderson v. Bason, (in error) 21 Law J. Rep. (n.s.) Q.B. 82; 17 Q.B. Rep. 701, reversing the judgment of the Court below in a previous case. A declaration in account stated that A and B, tenants in common in fee, made a lease with a gene- ral covenant on the part of the lessee to pay the rent (without saying to whom) on Michaelmas and Lady-day. A died, and on the following Lady-day, the tenant paid half a year's rent to B. It appeared at the trial that B, the plaintiff', the heir-at-law of A, received 12s. 6d. from B; but he claimed 61. 5s., which was the amount of half of the half-year's rent: Held, that the Judge rightly directed the jury that B had received more than his share of the rent, and that he was accountable to the plaintiff for the excess. That the Statute of Apportionment, 4 Will. 4. c. 22, does not apply as between the execu- tor and heir of a tenant in fee — confirming Browne v. Amyot, 3 Sa/re, 173; s. c. 13 Law J. Sep. (n.s.) Oha/ac. 232. That as the demise purported to be a joint demise by tenants in common, with a general reddendum not specifying to whom the rent was payable, the rent followed the reversion, and on the death of A, the reversion was split, and the plaintiff became entitled to his share of the rent. Held, also, on motion in arrest of judgment, that the declaration which was in the usual form was good, without any allegation that after a request to account, a reasonable time had elapsed before the action was brought. Beer v. Beer, 21 Law J. Rep. (n.s.) C.P. 124; 12 Com. B. Rep. 60. (B) When an Aocount will be deobebd in Equity. (a) In general, A contractor having executed works for a railway company, under two contracts, distinguished respec- tively as contract No. 1. and contract No. 3, brought an action against the company for the works exe- cuted under contract No. 1. The company filed a bill to restrain this action, alleging that the plaintiff's demand depended on the result of comphcated accounts, the company being entitled to various items of set-off, and that the account under contract No. 1. was so blended with that under contract No. 3. that what was due to the contractor could not be ascer- tained without taking both accounts. The contractor, by his answer, denied any complication in the accounts, or that the accounts were blended. He admitted the receipt of various sums in payment of work done under each of the contracts, and also of a large sum which, not being appropriated by the company, he had appropriated partly to one con- tract, partly to the other. He also shewed that tlie several heads of set-off were free from all uncer- tainty. He then stated that there was work done the amount of which had not been ascertained, and other matters in respect of which he had claims on the company; — Held, on appeal from an order of the Master of the Rolls granting an injunction, first, that, taking into aocount the explanations given in the answer, there would be no difficulty in the company proving at law the claims of set-off under contract No. 1, and that no case for equitable interference was established on this ground; secondly, that before the contractor could recover anything under contract ACCOUNT— ACCOUNT STATED. No. 1. he would be obliged to prove that he had a demand, exclusive of that contract, which justified his appropriation of that part of the sum received from the company which he had not appropriated to contract No. 1 ; that, thus, the accounts under con- tract No. 3. would have to be taken, and that, in this way, the accounts of the two contracts were blended; thirdly, that it being equally possible to take at law, with justice to both parties, the accounts under contract No. 3. as those under contract No. 1, the blending of the two accounts formed no reason for withdrawing the case from the jurisdiction of a Court of law; fourthly, that the other claims set up by the contractor in his answer were such as could not be properly decided in the action, and that therefore the injunction granted was proper; fifthly, that the delay of the company in filing their bill was no ground for refusing to interfere in a case where it was clear that the Court of law could not possibly deal with the subject-matter. The South-Maiiem Rail. Co. V. Brogden, 3 Mac. & G. 8. The authorities shew that there are many cases in which a Court of equity will entertain jurisdiction in matters of account where, if the party making the claim had proceeded at law, the Court would not if applied to for that purpose, withdraw the matter from the legal jurisdiction. Ibid. A bill was filed by a contractor against a railway company, stating that the plaintiff had, under certain contracts, executed works of considerable magnitude for the defendants, which they had taken possession of; and praying for a settlement of the accounts be- tween them. The cause was brought to a hearing. No action at law had been commenced in respect of the contracts. An objection was taken at the hearing by the defendants, that the matters in dispute ought to have been made the subject of an action at law, and that a Court of equity had not jurisdiction as to them : — Held, that a Court of equity had concur- rent jurisdiction with a Court of law, and that, in that stage of the proceedings, such jurisdiction ought to be exercised. Macintosh v. the Great Western Hail. Co., 24 Law J. Rep. (h.s.) Chane. 469; 3 8m. & O. 146. It is no objection to a claim, or bill filed for an account against a confidential agent, that he has been also employed as a solicitor in respect of the same matter. Oddp v. Seeker, 2 Sm. & G. 193. The plaintiff filed a bill on behalf of himself and all other the shareholders in a projected company, against the defendants, who were the finance com- mittee, calling upon them to account for the depo- sits received, and to divide the surplus amongst the shareholders, minus whatever sum any of the share- holders might have consented to receive back upon their deposits. Fourteen of the shareholders had been repaid in full, on the ground that they had only advanced money as a loan to the company, in order to satisfy the Standing Orders of the House of Com- mons: — Held, that the persons who had lent money to pass the Standing Orders, which was a fraud upon the House, were liable as contributories, for the shares they had taken. Clements v. Bowes, 22 Law J. Rep. (N.s.) Chanc. 1022; 1 Drew. 684. Held, also, that an objection for misjoinder was removed by the 49th section of the Chancery Pro- cedure Amendment Act, although all the plaintiffs were not named upon the record. Ibid. The plaintiff filed a bill on behalf of himself and the other shareholders in a company against the persons forming the financial committee, praying that an account might be taken of all monies received by the defendants in respect of deposits upon shares, and an account of the costs and expenses incurred by them, and that the amount due to the plaintiff and the other shareholders, after giving credit for the monies paid by them, might be distributed rateably amongst the shareholders: — Held, upon demurrer to the bill, that the fact of the defendants having already rendered an account did not preclude the plaintiff from having an account taken under the authority of the Court : and that the remedy pro- vided for these cases by the Winding-up Acts did not take away the plaintiff's right to file a bill for a similar purpose. Clements v. Bowes, 21 Law J. Rep. (n.s.) Chanc. 306. Held, also, on the demurrer as to parties, that as all the shareholders had a common interest the plaintiff might without their consent- file a bill on behalf of all, and that as the financial committee were the only persons alleged, by the bill to have had power over the funds of the company, it was not necessary to make any other persons who might have acted as directors parties to the suit. Ibid. (I) To clear an Estate. Where an estate cannot be cleared until certain accounts have been taken, and is subject to a claim, whether contingent or not upon the taking of such accounts, the Court will direct them to be taken. Brogden v. Merion, 22 Law J. Rep. (n.s.) Chanc. 1040. (c) Destruction of Accovmts. Where a wrong has been committed the .wrong- doer must suffer from the impossibility of accurately ascertaining the amount of damage. Therefore, where an account of the equitable waste committed by a tenant for life was directed to be taken against his executors, which it was found impossible to take accurately, and the Master had arbitrarily charged the executors, his report was supported. The Dujce of Leeds v. the Earl of Amherst, 20 Beav. 239. When an accounting party destroys the accounts before the matters have been finally adjusted, and still more pending a litigation, the Court will pre- sume everything most unfavourable to him consistent with the established facts. Gray v. Eaigh, 20 Beav. 219. ACCOUNT STATED. (A) What amounts to. (B) Baeon and Feme. (C) Exeoctoks. (D) Pleading. (a) Form of Covmt. (6) General Issue. (A) What amounts to. Debt for dividends sold and assigned and on an account stated. Pleas, payment into court of parcel, &c., and as to the residue, never indebted. At the trial, it appeared that the plaintiff had agreed to sell ACCOUNT STATED. to the defendant certain dividends for 1751., but after the bargain was made it was found that an order of the Court of Chancery was necessary before the divi- dends could be received by the defendant, and a dis- pute having arisen as to which party was to pay the costs of obtaining this order, it was agreed that the deed of transfer should be executed and the question of costs referred to two solicitors. The deed was accordingly executed, and 125/. paid to "the plaintiff, and a paper signed by both parties, in which credit was given for that sum, and &01. stated to be the balance remaining. The deed, however, stated that the whole purchase-money was paid, and contained a release in the usual way : — Held, first, that the plaintiff could not recover the remainder of the pur- chase-money under the first count, as the debt only accrued upon the execution of the deed, and at the same time the debt was released ; secondly, that there was no evidence of an account stated, as at the time the memorandum was signed, the plaintiff ^s claim to the SOL was contingent upon the result of the refer- ence. Baker v. Heard, 20 Law J. Rep. (n.s.) Exch. 444 ; 5 Exch. Rep. 969. A declaration in assumpsit stated that the plaintiflc agreed to sell, and the defendant to buy, certain land, and that the defendant agreed to pay the purchase- money on the 1st of January 1845, and that the plaintiff agreed, upon payment of the purchase- money, to convey the land to the defendant; breach, non-payment of the purchase-money. There was also a count on an account stated. Pleas, non as- sumpsit, the Statute of Limitations, and other pleas. The defendant, by a written agreement " agreed to pay the purchase-money, on the 1st of January 1845," and the plaintiff agreed, upon payment of the purchase-money, to convey the land to the defendant. The plaintiff, in support of the account stated, put in evidence a document, dated the 19th of January 1849, in these terms: — "I here- by acknowledge the above account to be correct, the amount owing by me as cash, the 12th of January 1849, being 1,0531 7s. \d. Signed H G" (the defendant). The jury found a verdict for the defendant on the Statute of Limitations, and for the plaintiff on theaccount stated: — Held, that thedefen- dant became bound to pay the purchase-money on the 1st of .Tanuary, without a conveyance, and that the plaintiff was entitled to recover upon the account stated. Yates v. Gardiner, 20 Law J. Rep. (h.s.) Exch. 327. Declaration on a banker's cheque, and on an ac count stated. The cheque was post-dated, and in support of the account stated the plaintiff relied on a letter of the defendant's in these terms : " I must request you to oblige me by holding my cheque till Monday, and in the interim 1 will send you the amount in cash. I made a mistake in dating it to- day, as I did not expect to be in funds till Friday or Saturday": — Held,(Erle, J. dissenting) that the letter was not evidence of an account stated, so as even to entitle the plaintiff to nominal damages, there being no statement of any sum acknowledged to be due. Lane v. Hill, 21 Law J. Rep. (jn.s.) Q.B. 318; 18 Q.B. Rep. 252. A promissory note was given by the defendant to the plaintiff payable five years after date, for value received : — Held, that it was evidence of an account stated against which the Statute of Limitations did not commence running until the maturity of the note. Fryer v. Boe, 12 Com. B. Rep. 437. The plaintiff executed a written contract of abso- lute sale of some goods to the defendant ; he after- wards sued the defendant for a sum which he con- tended was due to him out of the proceeds of the goods as a balance after repaying the amount ad- vanced by the defendant on their security. The plaintiff gave evidence that on the sum being de- manded by the plaintiff's agent as the balance out of the proceeds, the defendant admitted the correct- ness of the amount, and said he would pay it over : — Held, that though the sale was absolute in law, there was evidence that it was accompanied by a trust that the defendant should account for the proceeds, and that the facts shewed a sufficient consideration for the account stated by the defendant to entitle the plaintiff to recover the balanceon thecount for money due upon an account stated. Howard v. Brownhill, 23 Law J. Rep. (n.s.) a.B. 23. A lease with a proviso of forfeiture for breach of covenants contained a covenant by the lessee to in- sure and keep insured the demised premises dming the term. The lessee had insured, but did not pay the last premium of insurance until one month after it was due : — Held, that he had thereby incurred a forfeiture which the lessor could enforce notwith- standing such payment of the premium; and that although the lessor had taken no step to enforce the forfeiture, a purchaser, with whom the lessee had contracted to sell his term, might refuse to complete his contract, and might reclaim his deposit; and, therefore, that the lessee could not recover from the purchaser, as money due upon an account stated, the amount of the deposit for which the latter had given his I O U, and that the defendant had a good defence under the general issue. Wilson v. Wilson, 23 Law J. Rep. (n.s.)C.P. 137; 14 Com. B. Rep. 616. (B) Baeoh and Feme. Declaration, by husband and wife, for money lent by, and money received to the use of the wife, " and for money found to be due from the defendant to the wife before her marriage on accounts stated between them, and for money found to be due from the defen- dant to the plaintiffs since their intermarriage on accounts stated between them since the intermarriage of the plaintiffs:" — Held upon demurrer, that the count on the account stated was bad for not averring that the account was stated in respect of money due in right of the wife, or otherwise shewing her interest in the money. Johnson v' Lucas, 22 Law J. Rep. (N.s.) Q.B. 174; 1 E. & B. 659. Semble — that a count by husband and wife, on an account stated with them, in respect of a debt aver- red to be due in right of the wife, or for which she had been the meritorious cause of action, would be good. Ibid. (C) EXECUTOES. A, at his death, left among his papers two letters sealed, and directed to the plaintiff (who had been his housekeeper for some years, but had left his ser. vice after giving birth to a child, of which he was the father) containing two promissory notes for 400/. and 200/. respectively. In one letter the note was said to be " in consideration of the long and faithful ser- vices of the plaintiff;" in the other he had written ACCOUNT STATED— ACTION. " in addition to any sum I owe you I inclose 200i as a mark of my respect." The defendants, who were the executors of A, paid 2002. after his death on ac- count of these notes to the plaintiff, and promised, in writing, to pay the residue, but subsequently declined to do BO; and the plaintiff brought an action of as- sumpsit against them, in which were counts upon the notes, and a count upon an account stated with the defendants as executors: — Held, that the testator's estate was not liable in respect of the notes, as they had not been delivered by him to the plaintiff, and could not operate as testamentary dispositions, be- cause not in conformity with the 1 & 2 Vict. c. 26. (the Wills Act); and held, also, that the defendants were not liable upon the count for an account stated, because the payments and promise had been made under a mistake as to the liability of the testator's estate, and without consideration, Goiigh v. Tindon, or Fmdon, 21 Law J. Rep. (n.s.) Exch. 58; 7 £xch. Hep. 48. (D) Pleading. (a) Form of Ooimt. [See IS & 16 Vict. i. 76. sch. B.] A declaration stating that the plaintiflT sues the defendant for money found to be due from the defen- dant to the plaintiff upon accounts stated between them, is a sufficient compliance with the form given in the schedule to the Common Law Procedure Act. Fagff V. Mudd, or Nudd, 23 Law J, Eep. (n.s.) Q.. B. 289; 3 E. & B. 650. (J) General Issue. On a settlement of accounts between the plaintiff and the defendant, the latter overpaid the plaintiff \l. lis. 5d., which they then agreed should go in discharge of the plaintiff's ensuing account. The plaintiff having afterwards done work for the defen- dant, sued him in debt on the common counts for the amount : — Held, that the defendant had a good de- fence as to 1/. 1 Is. 6d. under the general issue. Smith V. Winter, 21 Law J. Rep. (n.s.) C.P. 158. ACCOUNTANT GENERAL. W C, being in receipt of an annuity payable out of stock standing in the name of the Accountant General, became indebted to F C, who brought an action against him and obtained a judgment, upon which a fieri facias was issued, but nothing was found upon which to execute it. Upon half a year's annuity falling due, F C obtained an order stopping the Accountant General from parting with the cheque; but upon a petition, the Court declined to make an order authorizing the sheriff to seize the cheque or to direct it to be dealt with as if it was stand- ing in the name of a trustee, and the petition was dismissed. Gov/rtoy v. Vvncemt, 21 Law J. Rep. (n.s.) Chanc. 291; 15 Beav. 486. ACTION. [See Abatement — Attainder — Damaqes — Debtor and Creditor — False Representation — Justice of the Peace Partners — Parties — Sheriff — Trover.] (A) When maintainable. (a) Irish wad Scotch Judgments, (h) Foreign Judgments. (c) Colonial Judgments. (d) Covmty Corwrt Judgments. (e) Disobedience to Judge's Orders. If) Former Recovery. (g) Another Suit pendimg. (h) Notwiihsta/nding Staiutahle Remedy. (i) Suspension of Right of Action. (j) Malicious Acts and Legal Procedure. ijc) Against Public Officer for Personal (l) Breach of Agreement to refer. (m) Debentures. (B) CIRC0ITT OF Action. (C) Notice op Action. (a) To Judges and Officers of Inferior Courts. ( b) To Magistrates. (c) To Revenue Officers. (d) Vnder Public Health, Act. («) Under Malicious Trespass Act. (/) Form wnd Service. (D) Form of Action. (as) Asswmpsit or Case. ( b) Assmnpsit or Trespass, (c) Case or Covenant, (ct) Case or Trespass. ACKNOWLEDGMENT. [See Baeon and Feme — Limitations, Statute op.] (A) When maintainable. (a) Irish and Scotch Judgments. To an action on a judgment of the Court of Queen's Bench in Ireland, the defendants (a corpo- ration) pleaded that they were not served with any process, and that the plaintiff, irregularly and behind the backs of the defendants, caused an appearance to be entered for the defendants, and obtained judg- ment when the defendants were not within the jurisdiction, and had not been served with process : — Held, that the plea was bad, for not shewing that the defendants did not know of the summons, or that they did not appear in the action. Sheeliy v. the Professional Life Assv/rance Co., 22 Law J. Rep. (N.S.) C.P. 244; 13 Com. B. Rep. 787. Quare — whether the 9th section of the 13 & 14 Vict. ti. 18, which provides for substitution of service by the Irish Courts, applies to corporations. Ibid. Semble, per Maule, J., that it does apply to service upon the agent of a corporation. Ibid. A decree was pronounced in the Court of Session in Scotland, dismissing certain actions, and finding the defender entitled to his expenses, and remitting it to the auditor to tax these expenses. These expenses were afterwards taxed at i9il. Against this decree the pursuer appealed to the House of Lords. By the law of Scotland execution cannot issue on a decree pending an appeal; but by the 48 Geo. 3. c. 151. s. 17, when an appeal is lodged 8 ACTION; (A) When maintainable. in the House of Lords the Court of Session is to have power to regulate all matters relative to interim possession or execution and payment of costs and expenses already incurred according to their discre- tion, having a just regard to the interest of the par- ties as they may be affected by the affirmance or reversal of the decree appealed from; and by section 18, when the appeal shall be heard, the House of Lords may give such judgment respecting all matters which have taken place in pursuance of such regu- lations as to interim possession, execution and pay- ment of costs as the justice of the case shall appear to require. Under this statute the defender, pending the appeal, petitioned the Court of Session to grant interim execution notwithstanding the appeal, and an interlocutor was pronounced, on the 3rd of June 1852, approving of the auditor's report for 4941., and allowing the decree for that sum to go out and be extracted, and execution to proceed thereon not- mtbstanding the appeal, to the effect of enabling the petitioner to recover payment of the said sum, upon caution being given to repay the same in the event of the decree being reversed in the House of Lords. An " interim decree for payment" was made at the same time, decreeing and ordaining the pursuer to make payment to the defender of the said sum of 494i, and granting a warrant to the messenger-at- arms to enforce payment of that sum. Caution had been given by the defender in the terms of the inter- locutor, and the pursuer having come to England, the defender (while the appeal to the House of Lords was still pending) brought an action on the decree of the 3rd of June 1852 for the payment of the sum of 4941. : — Held, that the action was not maintainable, as the 48 Geo. 3. c. 151. only enabled the Court of Session to make regulations for execu- tion and payment of costs pending the appeal, which might be varied or rescinded from time to time; and that therefore the interim decree was not in the nature of a final judgment for the costs. Pal/rich v. Shedden, 22 Law J. Rep. (n.s.) iaton, 23 Law J. Rep. (n.s.) Q.B. 290. An articled clerk, who had taken a B.A. degree, and had been articled for three years to an attorney under the 7th section of the 6 & 7 Vict. c. 73, served two years with the attorney, and eight months with his London agent, after which he went to a special pleader for fourmonths, and was then examined, and passed. The examiners having refused to issue their certificate, on the ground that the clerk had not served the attorney or agent for three years, as required by the act, the Court gave him liberty to enter into further articles for four months, to com- plete the three years' service, and authorized the examiners, at the expiration of the time, to issue their certificate without further examination. Ex parte Earle, 1 Bail C.C. 180. (5) Premium and Enrolment of Articles. A clerk was articled to a solicitor at a premium of 150Z., and the articles contained a receipt for and a release from the money. Contemporaneously the clerk gave an I U for, and agreed to execute a mortgage of certain property for securing the money. The clerk voluntarily left the master seven months after thedateofthearticles. The master brought an action on the I O U, to which the clerk pleaded never indebted, payment and release, and the master aban- doned the action. He then filed his claim to enforce the mortgage security and for foreclosure. One of the Vice Chancellors dismissed the claim, on the ground that the Court would not set aside the plain- tiflF's own legal bar, but without costs, the defendant undertaking to pay 21/. as the proportion of the pre- mium for the time his service lasted. The plaintiff appealed, but it appearing that he had not, in com- pliance with the provisions of the Attornies and Solicitors' Act, 6 & 7 Vict. c. 73, made or caused to be made the necessary afiidavit to enable the defen- dant to enrol the articles, the Court dismissed the appeal, without costs, without (under the authority of the 62nd section of the statute IS & 16 Vict, t. 86.) sending the parties to law; and it appearing upon the affidavits of the defendant that there was matter impertinent to the issue between the parties, the Court ordered the defendant (under the authority of the 17th section of the same statute and the 30th Order of the 7th of August 1852), to pay the plaintiff 201. for such impertinent matter, and refused to relieve him from his undertaking to pay the 211. Du- faur V. Sigel, 22 Law J. Eep. (n.s.) Chanc. 678; 4 De Gex, M. & G. 520. (B) Admission and Ee-admission. [See Reg. Gen. Hil. Term, 1853, 22 Law J. Rep. (n.s.) ( i. ) ; 1 E. & B. App. Ivii. And as to admis- sion in Counties Palatine, see Stat. 16 & 17 Vict, c. 59. =. 7.] A Court of equity will neither admit a solicitor nor restore him to the rolls without his first having been admitted or restored to the rolls by a Court of common law; and this Court refused to make an order to issue a certificate to allow a solicitor to prac- tise where two applications, having a similar object, had been refused by a Court of common law, but the petition was ordered to stand over, and leave was given to apply. In re Barber, 23 Law J. Rep. (n.s.) Chanc. 874; 19 Beav. 378. A solicitor who had been struck oflT the roll for mis- conduct was restored after a lapse of ten years, during which, amidst great privations and suffering, he had maintained an irreproachable character, the appli- cation being supported by a memorial signed by a very large number of solicitors, and not opposed by the Law Institution, though opposed by one indi- vidual solicitor only. Anonymous, 17 Beav. 475. [See Ex parte Howard, post, (D) Certificate (a).] (C) Change of Name on the Roll. On the application of an attorney to be allowed to substitute the name of J Heaton D on the roll of attornies in the place of J D, the Court directed the Master to enter on the roll opposite the name of J D a memorandum that by rule of this Court J D was now known by the name of J Heaton D, and that the Master should make such indorsement of such alteration of the name on the Admission of the ap- plicant. In re Dearden, 20 Law J. Rep. (n.s.) Exch. 80; 5 Exch. Rep. 740; 1 L. M. & P. P.C. 666. Upon the application of a solicitor, who had as- sumed the name of Chamberlain in addition to hia own, the Court, being satisfied with the reasons, ordered an entry of the change of name to be made upon the roll of sohcitors. Ex pa/rte John Matthews, 22 Law J. Rep. (n.s.) Chanc. 22; 16 Beav. 245. (D) Certificate. [See Reg. Gen. Hil. Term, 1853, 22 Law J. Rep. (n.s.); 1 E. & B. App. Ixiii.; and as to the stamp duty, see 16 & 17 Vict. c. 63. %. 1.] ATTORNEY AND SOLICITOR; (F) Duties and Liabilities. 47 (a) Renewal. [See In re Barber, ante, (B).] It is not necessary for an attorney who has ceased to take out his certificate for a year previous to the pacing of the statute 6 & 7 Vict. c. 73. to apply to be re-admitted as an attorney, on his desiring to practise again. It is sufficient for him to obtain a rule to renew his certificate.' Ex pa/rle Mowa/rd, 20 Law J. Rep. (n.s.) Q.B. 27 ; 1 L. M. & P. P.O. 710. (6) Effect of acting without. Under the statute 6 & 7 Vict. u. 73, if an uncer- tificated attorney acts as an attorney, his acts are valid as regards other persons, though he cannot maintain any action or suit for the costs of business done while he is without a certificate. So held in the case of an attestation to a warrant of attorney by an uncertificated attorney. Moldgate v. Slight, 21 Law J. Rep. (n.s.) Q.B. 74 ; 2 L. M. & P. P.C. 662. (E) Rights and Privileges. [See Arrest — Partners.] A country solicitor, who is authorized to institute a suit, is justified in employing a London agent for that purpose, in whose name, as agent, the bill may be filed. SoUey v. Wood, 16 Beav. 370. Where two solicitors, who are not then in partner- ship, are employed in the same matter for a client, as in the defence of an action, the ^imd facie in- ference of law is, that they are partners as to that particular matter, and entitled to an equal share of the joint profits, irrespective of the quantity of work performed by each. Where the contrary is alleged, the burden of proof is on him alleging it. Eohin- son V. Anderson, 20 Beav. 98. (F) Duties and Liabilities. [Registering name and address, see Reg. Gen. Hil. Term, 18S3, r. 1G5 ; 22 Law J. Rep. (n.s.) xviii.; ] E. & B. App. xxvii.] (a) In general. A solicitor was intrusted with money by his client to be invested upon good securities. The money was invested on insufficient securities, and the greater part of it was lost. The client was not informed of the actual nature of the investments, but was assured they were ample and safe. The solicitor died, and a claim was made against his estate for the loss sus- tained by the client : — Held, that the client had a good claim against the estate for the money so lost ; that this was not a matter for an action at law, but for an account in equity ; and that the Statute of Limitations would not apply to a question of account arising between principal and agent. Smith v. Po- cocJce, 23 Law J. Rep. (n.s.) Chanc. 545 ; 2 Drew. 197. A bill of exchange received by a partner- in a solicitor's firm from a client is, prirnd facie, to be deemed to be received on behalf of the firm ; and if the solicitors allege the contrary, they are bound to prove it by clear evidence. By the decree the plaintiff's costs {3\9l.) had been ordered to be paid to her solicitors out of a fund in court, in which she was interested; but the plaintiff having, in the course of the proceedings, given to one of the firm of solicitors a bill for 300/., which they had passed away, the order for the payment of the 3191. was stayed. Moore v. Smith, 14 Beav. 393. Distinction between misrepresentations giving a legal and those giving an equitable remedy. Whit- more V. Mackeson, 16 Beav. 126. The Court, assuming that the plaintiffs had lent A B money on the security, first, of the leasehold, secondly, of a policy, and thirdly, of the written representation of his solicitor as to his solvency, held that the plaintiffs could not make the solicitor liable for misrepresentation, without shewing that they had taken proper steps to make the other secu- rities available. Ibid. The plaintiffs lent A B money on mortgage on the application of his solicitor, who assured them in writing that, in his opinion, he would be able to pay the amount. The plaintiff's, alleging this to be a false and fraudulent misrepresentation, instituted a suit in equity to make the solicitor personally liable : — Held, that then: remedy, if any, was at law. Ibid. A solicitor from whom a sum was found due, was ordered to pay all the costs of proceedings to compel payment. Be Dufawr, 16 Beav. 113. Whether it is necessary in demanding payment by attorney to leave a copy of the power of attorney. Semhle — not. Ibid. By an order for taxation, the solicitor was ordered, on payment, to deliver over the papers. Having made default, he was ordered to pay the costs of a motion to compel him, though he had delivered them up after the notice of motion, but before it had been heard. Re Mimter, 19 Beav. 33. A solicitor is bound to deliver up as part of the papers of a client all original letters received by him which exclusively relate to the client's business; he may, however, retain copies, though he cannot charge for them : but he is entitled to retain copies of all letters written by him on behalf of such client, and the client is entitled to copies of such copies on pay- ment of the charge of making them. In re Thom- son, 24 Law J. Rep. (n.s.) Chanc. 599 ; 20 Beav. 545. If an attorney or agent can shew he is entitled to purchase property, notwithstanding his character of attorney or agent, yet if, instead of openly pur- chasing it, he purchases it in the name of a third person, as his trustee or agent, without disclosing the fact, such purchase is void. Zewis v. Hillman, 1 H. L. Ca. 607. Under a will 2,91 Ot stock was vested in a testa- tor's three unmarried nieces, who were his executrixes, for themselves for life, then for children, with ulterior trusts. Their confidential solicitors were a fiim of two persons, of whom the senior under his own advice was associated as their co-trustee, and a declaration of trust prepared by the firm was exe- cuted by the four persons in 1822. Subsequently, on the advice of the senior solicitor, the fund was sold out, and paid to him alone, but he on the same day paid the precise amount to the credit of the banking account of the firm. In 1824 the senior partner untruly represented that the money had been laid out on specified freehold security, but in 1825 a sufficient freehold mortgage was taken by the senior partner to himself alone, and was treated hy him as the security for the trust fund, less a very small balance which was divided among the three 48 ATTORNEY AND SOLICITOR; (F) Duties and Liabilities. ladies. The interest was duly paid to the ladies until 1828, when the senior partner realized that security without their privity, and again untruly alleged that he had laid out the amount on another specified security. The firm dissolved partnership in 1834, and each partner practised separately ; the senior partner continued regularly to pay sums as the interest to the ladies until 1 844, when he became bankrupt, and afterwards died abroad uncertificated. In a suit by the three ladies against the junior partner, charging him as liable to make good the amount :— Held, that a sufficient investment having been made in the name of the senior partner, and communicated to the parties, and adopted, the duty of the firm was discharged, and the subsequent loss was a breach of duty by the senior partner alone, and not by the partnership, and the suit was dis- missed with costs. Ooomer v. Bromle;/, 5 De Gex & Sm. S32. (6) Swmmary Jurisdiction over. (1) At Law. (i) Attachment, [See Attachment Reg. Gen. Hil. Term, 1863, 22 Law J. Rep. (n.s.) i. ; 1 E. & B. App. iii.] (ii) Strihing off the Soil. Where a rule had been obtained to strike an at- torney off the roll of this Court, founded solely on an order of the Lord Chancellor striking him off the roll of solicitors for alleged misconduct in the Court of Chancery, but which order was subsequently re- versed and the party restored to the roll of solicitors, on payment of costs, but he was ordered to be sus- pended for six months from practising in the Court of Chancery, this Court discharged the rule on pay- ment of costs. In re Smith, 22 Law J. Rep. (n.s.) Q.B. 123; 1 E. & B. 414. A rule Jiisi to strike an attorney off the roll after he has been struck off the rolls of the other courts must be served personally. In re Anon., 23 Law J. Rep. (n.s.) Exch. 24. (2) In Equity. (i) Orders to pay over Money. A, a defendant in a suit, employed B, C & D, who carried on business in partnership as solicitors, to act for him as solicitors in the suit. A, having been ordered to pay a sum of money into court, sent a cheque for the amount in a letter addressed to B alone at the place of business of the firm. A had, throughout the whole business, addressed all letters relating to it to B alone, at the place of business of the firm. B applied the money received by him to his own use, and did not pay it into court. Motion by A, that the Court, under its summary jurisdiction over C & D as officers of the court, might order C & D to pay this sum into court to the credit of the cause, was refused, on the ground of A's having dealt with B solely instead of the firm. In re Lawrence, 23 Law J. Rep. (N.s.)Chanc. 791; 2 Sm. & G. 367. By an order of the Court the costs to be incurrtd by a married woman, suing by her next friend, in a future proceeding, were ordered to be paid to A B, her solicitor. Pending the proceedings A B was dis- charged, and C D appointed solicitor. A B received the whole costs : — Held, that the Court had juris- diction on pf-tition to order A B to pay over to C D his share of such costs; and, secondly, that A B could not set off; as against the amount, a debt due to him from the next friend. Expa/rte Bailey, im re Bar- nard, 14 Beav. 10. A purchased an estate from B, and on the com- pletion one solicitor acted for both parties and the purchase-money was paid into his hands. After- wards the purchaser was defeated by C, who had a paramount mortgage. The purchaser presented a petition against the solicitor, asking payment by the solicitor out of the purchase-money of the losses oc- casioned, or that he might indemnify the petitioner. The petition was dismissed with costs, the Court hold- ing, first, that it had no jurisdiction to award com- pensation or damages in such a case ; and, secondly, that the money having come to the hands of the solicitor as agent of the vendor, and not of the peti- tioner, it could not interfere. Tylee v. Weii, in re Einton, 14 Bea. 14. As. to the summary jurisdiction of the Court over solicitors, where monies are paid to them by clients in that character. Ibid. A solicitor who has received and has in his hands the money of his client will be summarily ordered to pay over the amount. A solicitor received monies for his client, an administratrix : — Held, that he could not set up proceedings by the next-of-kin, of whose rights he had notice, as a defence for not pay- ing the administratrix. Be BecTce, 18 Beav. 462. A solicitor professionally concerned in a transac- tion for A, received on his account, in the course of that transaction, a sum of money. Afterwards it was arranged between A and B and the solicitor, that the same should remain in the solicitor's hands as a secu- rity for the payment of the expenses of certain pro- ceedings taken in parliament by B to obtain an act for a divorce. The application to parliament having failed, and the costs of it not having exhausted the fund, — Held, that under the summary jurisdiction of the Court over the solicitor, it could order the repay- ment to A of the balance. Ex parte Wortham, 4 De Gex & Sm. 415. (ii) Striking off the Boll. A solicitor of the court who, without the authori'y of his client, had instructed counsel to consent to a petition, praying the payment out of court of a fund belonging to the client, was ordered to shew cause why he should not be struck off the roll. Having shewn cause, and the same being held insufficient, he was ordered to be struck off the roll. In re Collins; Wkeatley v. Bastow, 24 Law J. Rep. (n.s.) Chanc. 732. (c) To conduct Suit to its Termination. An attorney or solicitor retained in a suit at law or in equity is bound to carry it on to its termina- tion, unless he gives a notice that he shall discon- tinue if he be not paid or supplied with the necessary funds, or the client dies ; and the Statute of Limita- tions does not begin to run against his right to sue for his bill of costs until the happening of one of those events. Whitehead v. Lord, 21 Law J. Rep. (n.s.) Exch. 289; 7 Exch. Rep. 691. The plaintiff had, prior to 1840, been retained by A (whose administratrix the defendant was) to ap- pear for her in a suit in equity to which she had ATTORNEY AND SOLICITOR; (F) Duties autb Liabilities. 49 been made defendant by bill of revivor. In 1840 the suit was beard, and a supplemental bill ordered to be filed to make certain next-of-kin parties, but such bill was not filed nor any other step taken in the cause prior to the death of A, which took place in June 1851 . — Held, that the Statute of Limita- tions did not begin to run until the death of A. Ibid. (d) Cajre of Client's Papers. It is the duty of an attorney to keep apd deliver up his client's papers reasonably arranged. North- Western Railwwjj Compa/ny v. Sha/rp, 24 Law J. Rep. (n.s.) Exch. 44; 10 Exch. Rep. 451. The plaintiff employed the defendant, an attorney, to sue W for a debt. W, to induce the plaintiff to forbear to sue, offered to give him a mortgage on some freehold property in which he had a rever- sionary interest. The plaintiff agreed to accept it under the advice of the defendant, who was accord- ingly employed by him to act as his attorney in respect of the mortgage transaction, and to prepare the mortgage deed. The defendant stated to his clerk that he must write to his town agents to make the necessary searches, to see whether W had taken the benefit of any of the Insolvent Acts. No such letter appeared to have been written, but he sent his clerk to inquire personally of W whether he had ever been insolvent. W denied that he had, and the mortgage was executed, and the proposed action was dropped. The plaintiff afterwards discovered that W had previously petitioned the Insolvent Court, and had obtained an order for hie protection. He thereupon sued the defendant for negligence and want of skill in ascertaining W's title in not making searches to ascertain whether W had been insolvent : — Held, that the action was maintainable, for that whenever the attorney of a proposed mort- gagee has reason to suspect that the intended mort- gagor has been bankrupt or insolvent, it is the duty of the attorney to make proper searches to ascertain the fact ; and that there was some evidence of negligence in this case, since the defendant by his own language and conduct shewed that he had a suspicion on the subject, and felt that it was his duty to make a search, which he had not done. Cooper V. Stephenson, 21 Law J. Rep. (n.s.) Q,.B. 292. Execution on a judgment at the suit of M having been issued against S a trader, S petitioned the Court of Bankruptcy for protection under the 12 & 13 Vict. c. 106, and the Court under section 213. made an order, directing that his " estate and effects should be possessed and received by the official assignee, and be taken possession of by the mes- senger." The attorney to the execution creditor, with knowledge of this, and on a representation by the defendant, who was also a creditor of 8, that if M would withdraw his execution all the other creditors would concur in an arrangement with S, advised that S should make an assignment of his estate and effects for the benefit of all his creditors, upon which the defendant desired the attorney to prepare the assignment, and it was prepared accord- ingly ; iiome of the creditors having refiised to sign the deed it became useless, and S was subsequently made a bankrupt. The attorney having sued the Digest, 1850—1855. defendant for the costs of preparing the deed, Held, that the effect of the order of the Court of Bankruptcy under the 213th section was not to vest the estate of S in the official assignee nor in the messenger, and that the attorney was not guilty of ignorance in advising the defendant that S should make the assignment, as it would have been opera- tive had all the creditors concurred, notwithstanding the order of the Court of Bankruptcy. Lewis v. Collard, 23 Law J. Rep. (n.s.) C.P. 32 ; 4 Com. B. Rep. 208. A solicitor is personally responsible for neglecting to prosecute the decrees of the Court with diligence. The Master, under the 15 & 16 Vict. c. 80. ss. 7, 8, 9, having certified such neglect, the solicitor for the plaintiff was ordered to pay the costs of the report, and of the consequent application and the order thereon; and the decree made in the cause was ordered to be prosecuted before the Judge in chambers, instead of before the Master. Ridley v. Tiplady, 24 Law J. Rep. (n.s.) Chanc. 20? ; 20 Beav. 44. Where a solicitor has been retained for and has undertaken a particular business, his bill of costs for carrying that business through to its conclusion is but one bill ; and where the business in question is the prosecution of a suit, and the solicitor has by his crassa negligent^ in the conduct of the suit caused the suit to be lost, he cannot recover any portion of his bill. StoTces v. Trwmper, 2 Kay & J. 232. In a cause commenced by information, the rela- tors* solicitor intending to cross-examine two defen- dants who had previously been examined in chief on behalf of a co-defendant, such defendants were by mistake examined upon interrogatories for the examination of witnesses in chief on the part of the informant, and by reason of this mistake the infor- mation was dismissed with costs: — Held, that the mistake was crassa negligentia on the part of the solicitor, and disentitled him to recover any portion of his bill of costs. Ibid. (/) On Undertakings. A, an attorney, on obtaining from B, another attorney, the papers belonging to a former client of B, wrote to B as follows : " Out of any monies which I may receive on this or any other proceeding on her account, I will hand you such balance as may remain due of your bill of costs as settled at 9i.": Held, that A was bound upon this undertaking to pay over to B the amount of the costs due to him from the first monies he should receive on account of the client, without deducting therefrom any costs that might be due to himself for recovering such monies, or otherwise. Tharrett v. Trevor, 21 Law J. Rep. (n.s.) Exch. 59 ; 7 Exch. Rep. 161. A sale of certain property seized by the assignees of a bankrupt being about to take place, the plain- tiff gave notice to the assignees of a claim to a portion of the property under a bill of sale by way of mortgage, and thereupon the defendants, who were the attomies of the assignees, on the 26th of August, wrote to the plaintiff's attorney a letter, stating that in consideration of the plaintiff con- senting to the sale, they thereby on hehalf of the assignees consented that the net proceeds of the effects included in the bill of sale should be paid over to the plaintiff to the extent of the balance due H ATTORNEY AND SOLICITOR; (F) Duties and Liabilities. for principal and interest. This letter was written by the authority of the trade assignee, who had the management of the sale of the bankrupt's effects, but without the authority of the official assignee. In answer, the plaintiff's attorney, the next day, wrote, saying " that in compliance with the under- taking given by you herein," he, on behalf of the plaintiff, consented to the sale. The sale took place, and on the 2nd of December the defendants wrote again to the plaintiff's attorney, referring to the former letter of the 26th, and stating that unless in- formed within two days of the course the plaintiff intended to pursue, " we shall consider ourselves absolved from our promise, and shall contest the validity of the bill of sale" : — Held, first, that as the letter of the 26th and 27th August constituted a complete contract, the subsequent letter of the 2nd of December could not be looked at in construing such contract, and that the contract upon the face of it shewed that the defendants contracted merely as agents. Secondly, that the defendants had no authority to bind the official assignee to the under- taking. Thirdly, that although the defendants had no such authority, still they were not liable to be sued in an action upon the contract as principals. Lewis V. Nicholson, 21 Law J. Rep. (n.s.) Q.B. 311 ; 18 Q.B. Rep. 503. (jr) Expenses of executing Process. The attorney who issues a writ of fi. fa. and lodges it with the sheriff is himself liable, and not the client, to the bailiff who executes the writ, although the attorney does not name the bailiff to "whom the warrant is to go, nor give any specific directions as to its execution. Brewer v. JoMs, 24 Law J. Rep. (n.s.) Exch. Ii3 ; 10 £xch. Rep. 655. (G) Retainbb and Authority to institute Proceedings. [See Company.] Case by one attorney against another for falsely representing that defendant was authorized by J F to employ plaintiff to bring an action as attorney of J F, and that defendant did so employ him ; whereby plaintiff was compelled to discontinue the action and pay costs. Plea, that plaintiff was nOt employed modo et formd. Replication, that plaintiff's bill of costs in the action was referred by Judge's order to be taxed by the Master, with liberty to defendant to dispute the retainer; that the Master allowed 192/., and plaintiff brought an action against defendant for that sum, and the question of retainer was referred to Master W, who certified that the retainer had been proved to the amount of 120/., and that plaintiff signed judgment for that amount. The replication then identified the action in respect of which that claim was made, with that mentioned in the declaration : — Held, upon, demurrer, that the replication was bad; the finding of the Master being no estoppel to the defendant in the present action. Callow v. JenJcins, 2 L. M. & P. P.C. 403; 6 Exch. Rep. 666. If a suit be commenced by a solicitor without the authority of his client, it will be dismissed on motion, with costs as between solicitor and client, including the ousts of the motion to dismiss. Crossley v. Crnwther. 21 Law J. Rep. (.n.s.) Chanc. 565; 9 Hare, 3S4. Where a solicitor files a bill, the onus lies upon him to shew that he had the plaintiff's authority for doing SO; and if he fails to shew such authority or a subsequent acquiescence on the part of the plaintiff, the plaintiff is entitled to have his name removed from the record, with costs to be paid by the soli- citor. Maries v. Maries, 23 Law J. Rep. (n.s.) Chanc. 164. A solicitor obtained a retainer to proceed against executors, who had, after a long lapse of time, neg- lected to prove the will and had rendered no account, to compel probate of the will, and to take such other proceedings for obtaining an account as might be necessary. He instituted a suit to compel probate and obtained in it an account which was insuffi- cient. He took no other steps for three years, and then, without further consulting the client, filed a bill for an account; he had no other authority than that retainer, and the chent denied any parol autho- rity to file a bill: — Held, that the retainer did not justify the solicitor; and the bill was dismissed with costs to be paid bv the solicitor, as in Allen v. Bone, 4 Beav. 493. Atkinson v. Ahlott, 3 Drew. 251. (H) Change of. The 18th of the General Orders of October 1842 is not applicable to the case of a deceased solicitor; therefore, where the solicitor of a party dies pending the suit, another solicitor may be appointed without order. Whalley v. Whalley, 22 Law J. Rep. (n.s.) Chanc. 632. A country solicitor, employing a London agent in a cause upon a special contract, is not entitled to obtain an order of course to change the agent without stating the agreement; and an order so obtained was discharged for irregularity, with costs. Richards v, ilie Scarhorough Marlcet Co., 22 Law J. Rep. (n.s.) Chanc. 759; 17 Beav. 83. A dispute having arisen as to the mode and extent of a solicitor's remuneration, he refused to proceed in the cause until it had been settled. The solicitor was ordered to deliver up the papers in the cause to the new solicitor, upon his undertaking to proceed with due diligence and to hold them subject to the existing lien thereon. Wilson v. Em/mett, 19 Beav. 233. An order of course had been obtained at the Rolls to change the solicitor of two of the defendants. The solicitor was a mortgagee of certain sums of money to which these defendants were entitled in the cause; and by the mortgage deed there were special powers given to him to conduct the suit on their be- half. On motion, the order of the Rolls was dis- charged with costs. Jenkins v. Bryant, 3 Drew. 70. (I) Dealings with Client. A deed of settlement, whereby the settlor is deli- vered bound hand and foot as to the property settled into the power of his trustee, cannot be maintained in equity without the clearest proof that it was made at and with the request, consent, knowledge or in- stance of the settlor; and a solicitor who takes upon himself to prepare such a deed for execution by his client, without the clearest evidence of the concur- rence of the latter, does so subject to all the conse- quences and liabilities of the deed being set aside, notwithstanding the solicitor may have been influ- enced by motives for the benefit of his client, in ATTORNEY AND SOLICITOR. 51 preparing the settlement. Therefore, where the plaintiff, alleged by the defendant to be young and extravagant, applied to a solicitor to raise a certain sum on mortgage, and the latter, with a view to pre- vent the former from dissipating his fortune, tied up the whole of his property and constituted himself sole trustee, the Court, on bill filed by the plaintiff, alleging that the deed of settlement had been prepared without his authority, consent or knowledge, and there not being any evidence to the contrary, declared the deed void in equity, and directed a reconveyance of the trust property by the trustee. Moore v. Prance, 20 Law J. Rep. (N.s.)Chanc. 468; 9 Hare, 299. A trustee cannot refuse to reconvey trust property merely because the cestui gv,e trust declines to apo- logize for an alleged imputation on the trustee; and if a suit for a reconveyance of the property is occa- sioned by such refusal, and upon such grounds, the trustee will be saddled with all the costs. Ibid. The mere fact that the relation of solicitor and client exists between a devisee and legatee and the testator, in respect of a will prepared by the solicitor, is not sufficient to render the devises or legacies void. Bindson v. Weatherill, 23 Law J. Kep. (n.s.) Chanc. 820; 5 De Gex, M. & G. 301; 1 Sm. & G. 604. If .the will, in such a case, be in such language and made under such circumstances as that the heir in an issue devisamt ml non, or the next-of-kin by caveat against probate, could not impeach the dis- positions, this Court will not, on the above ground, fix a trust of the property on the solicitor for their benefit. Ibid. Whether it be or be not a general rule that a soli- citor who establishes a gift from his client does not obtain the costs of the investigation, still, where a party contesting the gift has full knowledge of the real facts, and then files a bill to set it aside, im- "puting unfairness and insolvency to the solicitor and drunkenness to the testator, and fails in proving the charges, the bill will be dismissed with costs. Ibid. In 1846 the defendant acted as the solicitor of A B in the sale of real estate in lots by auction. One lot only was sold at the auction, and the defen- dant was engaged in completing that sale, and in preparing abstracts of title for the other lots. In 1848 A B, in company with H, a land agent, called at the defendant's office and pressed him to purchase part of the unsold lots, when it was agreed that the consideration should be 2601. and an annuity ofiOl. for the life of A B. The contract for purchase was prepared by the defendant, who charged A B with a moiety of the costs. In 1850 the defendant, on the offer of A B, purchased the remainder of the pro- perty for an annuity of 261. a year for the life of A B. In February 1852 A B died intestate. The value of the annuities had been calculated according to the tables; but it was proved that at the times of the respective purchases, A B was of intemperate habits, and that his was not an ordinary average life. In a suit instituted by the heir of A B, — Held, upon appeal, confirming the decree below, that the rela- tion of solicitor and client continued ; and that the purchases must be set aside on the ground of inade- quate consideration. Holrrum v. Loynes, 23 Law J. Rep. (N.S.) Chanc. 629; 4 De Gex, M. & G. 270. By an indenture made between a client and his solicitor, the client, in consideration of 100?., con- veyed certain land to his solicitor. The solicitor, who had himself prepared the conveyance, alleged that it was a voluntary deed, and that no consideration had passed, the lOOi. being introduced to save the amount of stamp duty upon a voluntary instrument: Held, that the transaction could not be maintained; and the solicitor was declared a trustee for the repre- sentatives of the client. Tomson v. Judge, 24 Law J. Rep. (n.s.) Chanc. 785; 3 Drew. 306. In proceedings to recover an estate A became greatly indebted to his solicitor. An agreement was entered into between A and his brother B, by which A agreed to relinquish his interest in the estate to B, in consideration of B undertaking to pay the costs already incurred with interest : — Held, that the soli- citor, being no party to the agreement, could derive no benefit from it. Moss v. Sainirigge, 18 Beav. 478. In the course of a protracted litigation B had be- come indebted to his solicitor in 9,377?. (as was alleged), of which 4,696?. had been paid out of pocket. The solicitor agreed to accept 3,500?. in full for his costs, unless the client recovered the estate, in which case the client agreed to pay the full sum of 9,377?. The client did not dispute the validity of the agreement until seven years after, when the litigation had been successful. The Court upheld the agreement. Ibid. A client by letter undertook to pay his solicitor in- terest on the balance appearing against him from time to time, upon the principle of annual rests : — Held, that the agreement was unilateral and not binding, and that even if it had been duly signed by both parties, it was not such an agreement as could be enforced between solicitor and client, being entered into while that relation was subsisting between them. Ibid. A client signed an agreement, by which he charged his estate with the bill of costs due to his solicitor, with lawful interest, on the principle of annual rests : — Held, first, that it was voluntary; and, secondly, that having regard to the fiduciary relation between the parties it could not be maintained. Ibid. The necessary requisites stated for supporting such an agreement, assuming it not to be usurious.' Ibid. The Court looks with jealousy upon a transaction between a sohcitor and his client, and throws the burden of proving that it is proper on the solicitor. Ibid. After a long unsuccessful litigation to recover an estate, a younger brother of the unsuccessful party, and the next to him in an entail claimed in the estate, entered into an agreement with him to pay what should be due in respect of the solicitor's bills of costs, with interest on the principle of annual rests, and to commence a new litigation, at his own risk, in the name of the elder brother, who agreed on these terms to relinquish the estate to the younger brother. Shortly afterwards an agreement was en- tered into between the solicitor, who was also to con- duct the new litigation, and the elder brother, that the solicitor should be paid in respect of the old costs a specified sum, being less than the costs out of pocket, unless the brothers, or one of them, came into possession of the estate ; in which event the elder brother agreed that he or the younger brother would pay in respect of the old costs another specified sum, being the fiiU amount of the bills, with interest cal- 52 ATTORNEY AND SOLICITOR; (J) Bill or Costs. culated on the principle of annual rests. The bills had not been taxed, but had been examined, though not minutely, by a friend of the client, who had been a solicitor. The new litigation was conducted by the solicitor with his own capital. It succeeded, and the brothers came into possession of the estate. Seven years after the agreement with the solicitor had been entered into they sought to set it aside on the ground of undue influence and insufficient ad- vice : — Held, that the agreement ought to be upheld. Moss V. Bainbrigge, 6 De Gex, M. & G. 292; 18 Beav. 478. Before the new litigation was completely closed, but after a successful verdict in it, the younger bro- ther, on the eve of making an antenuptial settle- ment, signed a memorandum of agreement between himself, the elder brother and the solicitor, whereby the brother charged the estate with payment of all sums of money and bills of costs owing to the soli- citor by both or either of the brothers, with lawful interest, on the principle of annual rests. At that time the relation of solicitor and client, though not dissolved, had been loosened by differences between the solicitor and the brothers, and the influence arising from that relation did not subsist in its fiiU force. The solicitor made no attempt to prevent the brothers from consulting other solicitors ; and in fact the solicitor of the intended bride intervened, though not as the solicitor of the intended husband : — Held, first, that the agreement was not usurious; secondly, that it was not merely voluntary, and that whether the term as to annual rests could have been maintained or not, the solicitor was entitled to aban- don it, and enforce the rest of the agreement ; thirdly, that the former agreement as to the old costs was binding on the younger brother under the latter agreement; and that interest was payable on the old costs for the interval between the dates of the two agreements, as well as during the rest of the time. Ibid. The solicitor and confidential friend of a father and son being a large creditor of the father on a mortgage of his life estate, with certain policies of assurance on the father's life, induced the son, who was immediate tenant-in-tail in remainder, to concur in executing a disentailing deed a month after the son came of age, and to execute a mortgage charging this debt of the father on the inheritance, the policies of assurance being at the same time assigned for the benefit of the son. The counsel employed to pre- pare the deeds cautioned the solicitor that the trans- action might be impeached, and by his advice another solicitor was consulted on behalf of the son, who de- clined to advise the son to enter into the transaction : — Held, that the son was entitled to set aside the mortgage, on the terms of restoring the policies of assurance. King v. Savery, 1 Sm. & G. 271. Held also, that one of the policies having been sold by the son by advice of the solicitor, to pay the premiums on the others, the restoration of the money produced by that sale was sufficient. Ibid. There were three subsequent mortgages, one to the solicitor and the two others to strangers, the monies advanced on which were applied or invested in land of which the son had the benefit : — Held, not to be a sufficient confirmation. Ibid. Four years after the first mortgage the solicitor, after an ineffectual attempt to sell on behalf of the father and son, himself became the purchaser of the family estate, on an appointment of apart of the purchase-money to the son, which was less than the fair value of his remainder in fee : — Held, that the sale was invalid, and that the conveyance as against the son could only stand as a security for the amount of purchase-money appointed to the son. Ibid. (J) Bill of Costs. (a) Delivery of. The defendant was a member of the provisional committee of the Northampton, Lincoln and Hull Railway Company. The plaintiff, an attorney who had been employed by the company, delivered his bill of charges, headed "Northampton, Lincoln and Hull Railway to R. H. Daubney, debtor" : — Held, that it sufficiently charged the defendant within the meaning of the statute 6 & 7 Vict. c. 73. 8. 33. Phipps V. Daubney (in error), 20 Law J. Rep. (m.s.) Q.B. 273; 16 a.B. Rep. 514; 2 L. M. & P. P.C. 180; affirming Daubney v. Phipps, 18 Law J. Rep. (U.S.) Q.B. 337. It is not a sufficient delivery of a bill of costs within the statute for the attorney to shew it to the party charged, and then to take it away again, unless the attorney shewing it intends to leave it with the party, and merely takes it back at his request. Ibid. If an attorney deliver his bill of costs to the per- son intended by him to be charged inclosed in an envelope addressed to the person on the outside, it is a sufficient delivery of the bill within the meaning of the statute 6 & 7 Vict. c. 73. s. 37, though there be no heading to the bill and the name of the party does not appear anywhere on it as the debtor. Lucas V. Roberts, 24 Law J. Rep. (n.s.) Exch. 227. A gross sum was paid to a solicitor in discharge of his claim, but no bill of costs was delivered : Held, that the client was entitled to have a bill of costs delivered. In re JBlacJcmore, 13 Beav. 154. The solicitor of tr...v,ies and executors received payment of his bill of costs out of the estate : Held, that a residuary legatee was entitled to have a copy of the bill delivered on payment of the costs of it. Ibid. A sohcitor who delivers an unsigned bill of costs is bound by it, but his client may either treat it as a nullity or waive the want of signature and adopt it; though, after such waiver, the client cannot treat the bill as non-delivered. In re Gedye, 20 Law J. Rep. (K.s.) Chanc. 410; 14 Beav. 56. (5) Headings and Contents of. The defendant, who was an attorney, wrote to the plaintiff, also an attorney, a letter inclosing a writ of summons in a cause of P. v. B, requesting the plain- tiff to serve it, and to send the defendant an account of his charges. The plaintiff, in answer, sent a letter headed " P. v. B," informing the defendant of the service of the writ, pursuant to his instructions, and that his charges, enumerating the items, were II. Os. 6rf. : — Held, that the plaintiff's letter was a com- pliance with the 6 & 7 Vict. c. 73. s. 37, and gave the defendant sufficient information, by reference to the writ, of the court in which the business waa done. Cozens v. Graham, 21 Law J. Rep. (n.s.) C P 206- 12 Com. B. Rep. 393. Where an attorney's bill of costs, delivered under ATTORNEY AND SOLICITOR; (J) Bill; or CobtS. 53 the fi & 7 Vict. t. 73- s. 37, contains items applicable to proceedings in the superior courts of law, but does not contain any statement from which it can be inferred in which of those courts the business was transacted, the bill is to be presumed to be a com- pliance with that act, unless the party charged there- by proves that any further information was practically required for the purpose of taxation, or shews that the name of the court in which the business was done would have been of use to him. Coohe v. GUlard, 22 Law J. Rep. (n.s.) Q-B. 90; 1 E. & B. 26. The reason for requiring the name of the court to be stated, which prevailed under the 2 Geo. 3. c. 23, does not exist since the 6 & 7 Vict. c. 73, and since the scale of allowances has become uniform in all the superior courts of law. Ibid. SemMe that a bill of costs which is defective as to part of the items contained in it, may be good as to the residue, so as to entitle the attorney to recover the amount as to which a sufficient bill of costs has been delivered. Ibid, [And see Phipps v. DoMiney, ante, {a).] (c) Taxation of. (1) In general. The defendant, in June 1853, retained the plaintiff, an attorney, to conduct an action for him, and in July obtained an order to sue in formd pa/u/peris. On the 8th of December an order for dispaupering him was obtained from the Master of the Rolls, who ordered it to relate back to the 31st of October, at which time the defendant became possessed of property on the death of his father. The defendant whilst the pauper order was in force had stated to the plaintiff that he would pay his costs on his father's death : — Held, that as the dispaupering order only related to the litigating parties and not to their attorney, the plain- tiff was not entitled to claim from the defendant payment of the costs incurred between the 31st of October and the 8th of Dec^lnOer; that the defen- dant's promise to pay the same was nmdmn pactmti, and that the plaintiff was not entitled to be paid his charges for copying, nor for counsel's fees which he had not paid. HoPmes v. Penney, 23 Law J. Rep. (N.s.) Exch. 132; 9 Exch. Rep. 584. Messrs. S, solicitors, promised, by letter, to con- duct the professional business in which F might be concerned " personally or otherwise," upon the terms of receiving agency charges. F was a solicitor, but he had omitted to take out his certificate; at that time he was interested in a suit which he had pro- cured to be instituted against himself, for the purpose of administering the estate of a testatrix, whose exe- cutor he was, and in whose estate he was beneficially interested.' Upon the completion of this business, Messrs. S obtained the whole of the money belong- ing to F out of court; they repudiated theletter, and insisted upon their right to costs as between solicitor and client; they also refused all accounts, and never delivered any bills of costs. Upon a bill by F, — Held, that the letter was a valid agreement; that Messrs. S were not entitled to higher charges because F was uncertificated; that his being uncertificated was im- material, as such an agreement was legal if made with any client; that the transaction was such that it could not be taxed under the common order; and that it was necessary to file a bill and abandon the common order which had been obtained for taxation; and a reference was directed to the taxing Master to tax the bill of costs as between principal and agent. Foley V. Smith, 20 Law J. Rep. (n.s.) Chanc. 621. F had also mortgaged his interest to Messrs. S to secure asum of 150i., which tliey were to pay for F; but though they omitted to make the payment, and retained that with other money in their hands, the Court treated it as an ordinary sum of money in hand, and declined to direct the taxing Master to allow the plaintiff interest upon those sums, though the mortgage, which was to include them, was bear- ing interest. Ibid. A solicitor, who sold his business, but who con- tinued to conduct a suit in Chancery in the office as the agent of one of the plaintiffs, independently of the solicitor who had purchased the business, will not be allowed to deny his agency, or to strike from the bills of costs of such solicitor the costs of proceed- ings which had been incurred by a mistake made in conducting the cause; and a petition for the taxation of the bills of costs under special circumstances was dismissed, with costs. In re Gedye, 20 Law J. Rep. (n.s.) Chanc. 410; 14 Beav. 56. In the taxation of costs the taxing Master has authority, under the statute 6 & 7 Vict. c. 73, to disallow the charges for an action which he in his dis- cretion considers to have been improperly brought. Ibid. The statute 14 & 15 Vict. c. 83. constituting the Court of Appeal, not pointing out what is to be done as to costs, where, in consequence of the Judges differing in opinion, the decision of the Court below is affirmed, such costs follow the result of the appeal. In re Clarice, 21 Law J. Rep. (h.s.) Chanc. 20; IDe Gex, M. & G. 43. Solicitors in London were appointed to a projected company. Other solicitors were appointed as local solicitors, and were directed to prepare the notices to landowners, and other matters connected with the local board. Errors were discovered in these, and the scheme was ultimately abandoned. The London solicitors in their bill of costs charged for the prepa- ration of these notices, and the taxing Master allow- ed them. The Master of the Rolls disallowed the claim, and " directed" the solicitors to establish their right at law, on the ground that the facts were disr puted, and that on the facts, so far as they were as- certained, there were questions of law to he decided. On appeal the claim was disallowed until it should be established at law, and the solicitors " were to be at liberty" to bring such action as they might be ad- vised. In re Bwreliell, 21 Law J. Rep. (n.s.) Chanc. 236. J F, a writer to the Signet in Edinburgh, em- ployed P, a solicitor, as his agent in London, and introduced to him business of some importance, which a client of his had in England. P, by letter, promised to allow J F one half of the profits of all such business, so long as he should retain the same, directly or indirectly. Upon the discovery of this by the client, who had obtained an order for the taxa- tion of P's bills of costs, he presented a petition, asking that the taxing Master might disallow all such share of the charges as P had promised to pay to J F : — Held, that if the agreement was illegal, it could not be enforced by J F; that the 22 Geo. 2. c. 46. s. 11, being a penal act, must be construed 54 ATTORNEY AND SOLICITOR; (J) Bill of Costs. strictly; that the business having been done, the solicitor was entitled to payment, and that the client could not avail himself of the letter to refuse pay- ment, or insist upon deducting from the bills of costs what P had promised to allow to J F, and that the production of the documents, relating to the bills of costs, ought to be left to the discretion of the taxing Master; and the petition was dismissed, with costs. Oordon v. Dalzell, 21 Law J. Eep. (n.s.) Chanc. 206; 15 Beav. 361. A claim filed by a sohcitor to enforce a security for costs pending taxation of one bill, and before the delivery of other bills, will be dismissed, with costs; but without prejudice to other proceedings after the amount due is ascertained. Waugh, v. Waddell, 22 Law J. Eep. (n.s.) Chanc. 612; 16 Beav. 521. A married woman gave her solicitors a written paper, charging her separate estate with former and future bills of costs incurred in respect of her separate estate. She afterwards discharged them, and upon her applying that they might deliver their bills, she was opposed and ordered to give further security for payment of what should be found due on taxa- tion. Upon delivery of one of the bills, she obtained an order to tax it, but before the amount was ascer- tained the solicitors filed a claim to enforce generally the security she had given to them: — Held, that the claim must be dismissed, and that it could not be retained until the amount of the costs was ascer- tained. Ibid. A solicitor was separately retained by more than one defendant to a suit, and upon the application of one of such defendants his bill of costs was ordered to be taxed; the taxing officer allowed, as against the defendant on whose application the taxation was ordered, only a proportionate part of the charges of proceedings which were common to all of those defendants, although those charges were not in- creased by the proceedings having been taken on behalf of all such defendants. Upon appeal, first, to one of the Vice Chancellors, and secondly to this Court, the certificate of the taxing Master was affirmed; but as the second appeal was made at the suggestion of the Vice Chancellor, it was dismissed without costs. Ex parte Ford, in re Colquhown, 23 Law J. Rep. (n.s.) Chanc. 515; 5 De Gex, M. & G. 35; 22 Law J. Rep. (n s.) Chanc. 484; 1 Sm. & G. App. i. A solicitor, one of three trustees, appointing another solicitor to act for him on agency terms, does BO for the benefit of the trust, although it be done with the consent of his co-trustees; and any advantage which may arise to him by the contract is for the benefit of the trust estate : Held, there- fore, that a taxation of the solicitor's costs was pro- perly made as between principal and agent, instead of solicitor and client. In re Taylor, 23 Law J. Rep. (n.s.) Chanc. 857; 18 Beav. 165. A mortgagor is not liable to pay the costs of business unnecessarily done in respect of the mort- gage on behalf of the mortgagee; neither is the mortgagee bound to pay the costs of such business when done by his solicitor of his own mere motion under a general authority, but without the particular authority of his client. In re Barrow, 24 Law J. Rep. (ns.) Chanc. 126; 17 Beav. 547. An agreement by a solicitor with his client for the payment of a fixed sum in lieu of costs, will, although no bill be delivered, be enforced, and the intention of the parties carried into efiect, and that although the agreement contained mistakes not only in name, but also as to the rights of the client, which, if con- strued strictly, would deprive the solicitor of all right to relief. In the present case, the agreement made the sum payable upon a future contingent event; it was obtained without fraud or pressure; the defendant had received the full benefit of it; and it was impossible to restore the parties to the position they respectively held at the time it was entered into. Stedman v. Oollett, 24 Law J. Rep. (n.s.) Chanc. 113; 17 Beav. 608. Under an order to tax, the Master may take an account of the receipts of the solicitor on account of interest received by him, but he cannot charge him with the profits made from monies of his clients in his hands. In re Savery, 13 Beav. 424. A sum of money having, on taxation, been found due from a solicitor to his client, the solicitor was ordered to pay the costs of the application for the second order for payment. Re Baviibrigge, 14 Beav. 645. On taxation a solicitor cannot be charged with interest on balances in hand; but a solicitor having debited himself with interest in his cash account rendered, — Held, that the Master ought to have charged him. In re Savery, 15 Beav. 58. An agreement pending a litigation that a solicitor shall be entitled to compound interest on his demand cannot be supported. In 1851 A and B agreed to charge their real estates with the amount of costs due to their solicitor with annual rests. The soli- citor instituted a suit to enforce the lien, and the client presented a petition for taxation. The Court made the usual order for taxation, with a direction to the Master to ascertain the amount due in 1851, but held itself incompetent on this occasion to deal with the question of lien. In re Moss, 17 Beav. 346. Principles and practice in the taxing Master's office and before the Court in cases of taxation. Ibid. The Court will only determine questions on items in a bill of costs which involve some principle, and not those relating to quavivm, only. Ee Catlvn, 18 Beav. 508. A solicitor, in 1849, agreed to charge sums out of pocket only, provided the client was unable to re- cover the proper costs in the business. A taxation was ordered of a bill for business in 1853, in the usual terms, and without determining any question as to the agreement. Re Ransom, 18 Beav. 220. An agreement to charge only costs out of pocket does not preclude taxation. Ibid. A client, when he retained a solicitor, expressed himself dissatisfied with the usual mode of remu- nerating solicitors, but no definite arrangement was made as to any other mode of remuneration. Sub- sequently, the sohcitor, in a letter to the client, stated that, " Until I have the pleasure of seeing you and of finally making some general and well-under- stood arrangement with you on the subject of costs, it shall be understood on my part that, beyond costs out of pocket, I have no claim upon you personally." No arrangement was ever made, though the subject was often alluded to by the solicitor :_Held, that this did not amount to a concluded agreement by the ATTORNEY AND SOLICITOR; (J) Bill op Costs. 65 solicitor to claim nothing as of right but costs out of pocket. Wilson v. Em/mett, 1 9 Beav. 233. Costs of a journey to Paris to obtain the execution of a deed disallowed, beyond the expense of doing it through an agent. In re Beavan, 20 Beav. 1 46. By error and mistake some items were omitted from and others undercharged and overcharged in a bill of costs referred for taxation. On a petition by the executor of the solicitor, liberty was given to insert the omitted items and increase those under- charged, but he was not allowed to decrease the overcharges, and the costs of the application were ordered to be paid by the petitioner. Pending a taxation both the solicitor and client died, the reference was revived, and the taxation continued between the representatives. Ee WhaMey, 20 Beav. 576. (2) What Bills are Taxable. A married woman having separate estate is within the 6 & 7 Vict. c. 73. with respect to the taxation of costs. Waugli v. TFitdtfeH, 22 Law J. Rep. (n.s.) Chanc. 612; 16 Beav. 521. A Court of equity has jurisdiction to direct the taxation of the bill of costs of a solicitor acting as agent for a person in the court of a revising barrister, and at an election for the purpose of promoting his return as a member of parliament In re AnSrew, 23 Law J. Rep. (n.s.) Chanc. 129; 17 Beav. 510. (3) Order of course for vmder 6 ron v. Meunier, 20 Law J. Eep. (jt.s.) Exch. 104 ; 6 Exch. Rep. 74. The certificate of a bankrupt was suspended by the, Commissioner for a stated time, and then to be of the third class, and without protection in the mean time. The judgment was founded on the commission by the bankrupt of offences enumerated in the 2nd, 7th and 9th cases of the 256th section of the 12 & 13 Vict c. 106. The bankrupt ap- pealed ; but it appearing upon the evidence that he had committed the offences mentioned in the Sth case of that section, and his counsel declining to ac- cept the offer of the Court of a discharge of the Commissioner's order and a general refusal of cer- tificate, their Lordships dismissed the appeal on the ground of that offence, although they were of opinion (upon hearing only the bankrupt's counsel) that the evidence did not support the judgment as to the 2nd, 7th and 9th cases. Ex parte Warwieh, in re Warwick, 24 Law J. Rep. (n.s.) Bankr. 23. A, a tallow-broker in business with B, became bankrupt, and on application for his certificate had the same suspended for two years, and then to be of the third class. The case of suspension was sup- ported by the Commissioner on two grounds ; first, that the bankrupt had fraudulently induced a creditor to forbear enforcing payment of a certain sum by withholding information known to him and not known to the creditor, and which,, if known, would have induced the creditor to enforce payment; the other case was for receiving money for goods alleged by the bankrupt to have been purchased, and then re-transferring the goods to the person of whom he bought them, so that the creditor did not receive the goods, and lost his money. The Lords Justices were of opinion that the withholding of in- formation, or the silence of the bankrupt regarding that information, was not dishonestly intended in the one case, and the act by which the goods were re- transferred and the money lost !n the second case was, upon the evidence before the Court, not fraudu- lent, so far as the petitioner was concerned, and therefore they granted an immediate certificate of the first class. Ex pa/rte QvU, in re QvU, 21 Law J. Rep. (n.s.) Bankr. 43. (e) Qammg. The 20l8t section of the act enacts, that no bank- rupt shall be entitled to his certificate if he shall within one year before his bankruptcy have lost 200i!. by any contract for the sale or purchase of " any Government or other stock " : — Held, on appeal, affirming the decision of the Commissioner, that railway stock is within the meaning of this section. Ex pa/rte MatTieson, im re Matheson, 21 Law J. Rep. (n.s.) Bankr. 18 ; 1 De Gex, M. & G. 448. A bankrupt had, within a year from the date of his petition for adjudication, lost upon a contract and continued contract for the purchase of railway stock, not quite 200Z., but the loss with the broker's com- mission on the continuation of the contract was something more than 200t : — Held, that the word " contract " in the 20l3t section of the Bankrupt Law Consolidation Act, 1849, is to be read "con- tracts," and also, that the commission is to be in- cluded in the gross amount of the loss, and that the bankrupt having so lost above 200/. was within the penalty of that section. Ex parte Copeland, in re Copeland, 22 Law J. Rep. (n.s.) Bankr. 17 ; 2 De Gex, M. & 6. 914. Semhle — that railway shares, as distinguished from railway stock, are within the same section ; and Semite — that if the transaction had been brought before the Court, as one of " gaming," it would have been within the same section. Ibid. (/) Oonduct of EanJervpt as a Trader, A carried on the business of a wine-merchant for three years, at the end of which time he was made a bankrupt. He had started with a deficiency, and his expenditure and losses during that period had very considerably exceeded his profits, and there never had been, at any time, a reasonable expecta- tion of his getting over his difficulties. At different times in this period he had borrowed considerable sums of B, a person not conversant with businessj the loans having been effected by money, bills and notes, which had been given by B to A, in respect of which A deposited with B bills of lading and wine warrants. In the course of these transactions A made misrepresentations to B as to the state of his affairs and the value of the securities given. B alone opposed the granting of A's certificate : Held, that the above circumstances constituted " conduct as a trader" within the meaning of the Bankrupt Law Consolidation Act, upon which the Court could ad- judicate in the matter of the certificate. Ex parte Dornford, im, re Dornford, 20 Law J. Rep. (n.s.) Bankr. 7; 4 De Gex & Sm. 29. A trader carrying on business for two or three years with a deficiency of assets, in his application for his certificate ought to explain that circumstance, or give some fair excuse for his conduct, if any credi- tor has suffered by it. Ibid. A bankrupt, who had twice before compounded with his creditors, made false and fraudulent entries in his books, consisting of fictitious accounts in par- 84 BANKRUPTCY; (M) Ceetificate op CoxroEMiir. ticular names. He stopped payment, being at the time able to pay 12s. in the pound, and soon after offered lis. in the pound. The Commisaioner re- fused him his certificate and all protection, excepting for the twenty-one days j and on appeal, the Lords .Justices, acting under the discretion given by the 198th section of the act — "a discretion to be exer- cised on judicial grounds with reference to the na- ture of the case in general, and on its peculiar circumstances" — dismissed the petition of appeal, with costs, affirming the decision of the Commis- sioner, and refusing any protection whatever, the conduct of the bankrupt being unfeir, untradesman- like and disreputable. Hx parte Ciirties, m re Cvrties. 21 Law J. Rep. (n.s.) Bankr. 63; 2 De Gex, M. & 6. 255. Bankers who, upon the evidence before the Court, must be taken to have been, and to have known that they were, deeply insolvent, continued- to receive deposits, and to issue notes for a period of eighteen months, during which time their assets would not pay more than 5». in the pound; on an adjudication of bankruptcy, the Commissioner for this, among other reasons, refused them any certificate or protec- tion. On appeal, the Court affirmed the refusal of the certificate on the above-stated ground, but, upon the consent of the assignees and of the opposing creditors, granted protection to their persons. Fx parte Ruf~ ford, in re Bufford; Bx parte Wragge, in re Wragge, 21 Law J. Rep. (n.s.) Bankr. 32; 2 DeGex, M.& G. 234. The certificate is a benefit to which a bankrupt mav entitle himself by good conduct. Ibid. Whether, after a refusal of a certificate, the grant of protection is of any avail against the common law right of creditors who do not come in under the bankruptcy — qucere. Ibid. A trader carried on business as a baker, and, be- fore the statute 12 & 13 Vict. c. 106. came into operation, obtained money from J, on pretence that it should be invested on mortgage, which was not done. He also obtained money from F, on a similar pretence, which was not so invested. The trader became bankrupt, and the Commissioner refused him any certificate ; and, on appeal, held (dismissing the appeal), that the money of J and the money of F were obtained by fraud and falsehood ; that on these grounds he was not entitled to his certificate; that before a bankrupt can ask for his certificate he should have conformed to the bankrupt law since his bankruptcy ; that if a trader so obtains money, though not in the course of his trade, or in matters connected with his business, it is, on a question of certificate, conduct as a trader, within the meaning of the act; and that if a case come otherwise within the act, it is not the less so because the conduct com- plained of took place before the passing of the act. jEx parte Staner, in re Sta/ner, 21 Law J. Rep. (n.s.) Bankr. 66 ; 2 De Gex, M. & G. 263. A trader, who carried on business without capital, and in the usual course of his transactions purchased goods, and immediately pledged them to raise money for the purposes of his trade, was by the Commis- sioner refused either certificate or protection; but, it appearing that the buying was not with the mere purpose of pledging, and that the pledging was made in the honest belief of bei^g able to redeem the goods and sell at a profit, the Court of Appeal held, that he had not committed any of the offences enume- rated in the 256th section of the Bankrupt Law Consolidation Act; and that although the Court was bound to have regard, under the 198th section, to the bankrupt's conduct as a trader, it was not neces- sary to affirm the judgment of the Commissioner; and therefore granted a certificate of the third class, to take efl^ect at the end of two years from the peti- tion for adjudication, without any protection for two months from the date of the order on the appeal. Sx parte Mamico, m re Manico, 22 Law J. Rep. (h.s.) Bankr. 41; 3 De Gex, M. & G. 602. The 256th section is to be strictly rather than loosely construed. But, semble, that if only one of the offences therein enumerated is committed, it is not imperative on the Court to award the extreme penalty there imposed. Ibid. A trader owing 6,000i. removed from a provincial city to London, where he recommenced business, and incurred new debts, and did not inform his new creditors of the state of his pecuniary circumstances. In less than nine months he became bankrupt; and the Commissioner adjourned the grant of certificate for eighteen months, without protection for six months ; but, on appeal, by arrangement, the order was varied by granting the certificate from a day cer- tain, eighteen months from the adjudication, and giving protection at the end of nine months there- from. Ex parte Wooldridge, in re Wooldridge, 24 Law J. Rep. (n.s.) Bankr. 17. A creditor who had not been permitted to oppose the certificate before the Commissioner, on the ground of his having omitted to give the requisite notice of his intention to oppose, cannot be heard in support of the Commissioner's decision, refusing the certificate and protection, on an appeal from that decision. Ex parte SoltJiome, in re MoUhouse, 1 De Gex, M. & G. 237. The bankrupt's certificate will be altogether re- fused, if it appear that he has systematically bought on credit to sell at less than cost price. Ibid. Where a bankrupt has engaged in reckless trading and speculations of a desperate character, the Court will not grant him a certificate; but where a cotton- spinner had engaged in several other trades and un- dertakings of different kinds, and it was not shewn that he was at the time insolvent, Held, that the number and variety of these undertakings did not constitute a case of reckless trading. Ex parte Wdkefidd, in re WaTcefieU, 4 De Gex & Sm. 18. Breach of trust is not " conduct as a trader," with reference to a bankrupt's certificate. Ibid. A trader is not bound to leave off" trading merely because he is in difficulties ; the question in each case being whether he has continued trading after there ceased to be any reasonable prospect of his retrieving himself. Ex parte Johmion, m re John- son, 4 De Gex & Sm. 25. A trader, when in diflSculties and when sued, placed himself in the hands of the bulk of his credi- tors, who defended the action in his name, and in order to gain time for an arrangement, pleaded twenty pleas, without having any substantial defence: — Held, that the bankrupt was not disentitled to his certificate for having vexatiously defended the ac- tion. Ibid. A banker, who has pledged a short bill of a cus- tomer, is excluded from a certificate. Ex parte Start, in re Gibson, 4 De Gex & Sm. 49. BANKRUPTCY; (M) Cbetificate oh Coufoemity. 85 (g) Effect of, as a DiacTiurge. By the deed of settlement of a registered joint- stock company, the shareholders covenanted to pay, in manner thereinafter mentioned, the calls on their shares, and by a subsequent clause it was stipulated that no assignees of bankrupts should be entitled to become shareholders in respect of the shares held by such bankrupt shareholder in the capital of the com- pany, but that such assignees should be entitled to sell the same upon proof of the bankruptcy and of their title as assignees ; and by the next clause a general power was given to the directors to make calls on the hold«s of shares other than the bank- rupt shareholders: — Held, that the bankruptcy of a shareholder was an answer to an action for calls made and due sifter his certificate, although the assignees had not availed themselves of the power of sale, and the bankrupt still remained the nominal holder of the shares. Wylam Steam Fuel Co. v. Street, 24 Law J. Rep. (n.s.) Exch. 208; 10 Exch. Bep. 849. (A) Beference hack hy Cowrt of Appeal. Whether the Court of Appeal has jurisdiction to refer back the question of certificate after the Commis- sioner has refused it — qwcere. Ex parte WkUaher, in re Whitaker, 21 Law J. Kep. (is.s.) Bankr. 25; 1 De Gex, M. & G. 459. Whetiier the grant of the certificate by the Com- missioner after he has once refused it would be valid — qtUBre. Ibid. (s) Conditional Certificate. A bankrupt in the course of a trading of two years' duration became Uable upon accommodation bills to the sum of 59,000^ On applying for his certificate the Commissioner (chiefly upon this ground) sus- pended the same for two years, without protection in respect of such bills, and then to be of the third class, and to have annexed a condition that neither the bankrupt nor his future proprety should be pro- tected from liability in respect of the bills : — Held, upon appeal, that there being no evidence of fraud or misrepresentation, the bankrupt was entitled to a certificate of the second class; and that such a con- dition was improper to be annexed to the certificate. Ex parte Ha/nvrmrid, m re Bammond, 24 Law J. Rep. (h.s.) Bankr. 2. If a bankrupt has dealt in accommodation bills, that is a circumstance requiring a full and satisfac- tory explanation, but is not necessarily one affecting his title to a certificate; and although every such transaction must be judged of according to its parti- cular circumstances, the main point for consideration is, how far the bankrupt had reason to believe that he could discharge his liability upon such bills on their becoming due. Ibid. (N) Pkaotice in general. A creditor resident in England may vote by letters of attorney at meetings held, under the 230th section of the Bankrupt Law Consolidation Act, to take into consideration an offer made by a bankrupt to his creditors, with a view to superseding the bankruptcy. Expa/rte Clegg, in re Clegg, 20 Law J. Rep, (h.s.) Bankr. 22 ; 4 De Gex & Sm. 606. An affidavit sworn at New York before a magis- trate, with liie attestation of a notary annexed, cer- tifying that there was such a person who was a magistrate of that city, received in evidence, under the 243rd section of the 12 & 13 Vict. c. 106. Ex parte Beid, in re Came, 22 Law J. Rep. (h.s.) Bankr. 4; 2 De Gex, M. & G. 963, wm. Expa/rte Bird. As to the leave to appeal to the House of Lords under the 18th section of the Consolidation Act, 1849, and the 10th section of the 14 & 15 Vict. c. 83, the Court will not give it unless it is of opinion that the point is one both of sufficient doubt and of sufficient importance. Expa/rte Eateman, in re Bariary, 23 Law J. Rep. (n.s.) Bankr. 8; 5 De Gex, M. & G. 268. A commission of bankruptcy issued in 1817. A B acted as messenger from that time until 1821, and he was paid the greater part of his claim on account. Many years afterwards, monies came to the hands of the official assignee, and the executors of the messen- ger petitioned for payment out of these monies of the balance remaining due; but the Court, concurring in the view of the Commissioner who had refused the application, declined to make any order. Ex pa/rte Page, in re ffamimond, 23 Law J. Rep. (n.s.) Bankr. 36. A bankrupt cannot without the concurrence of his assignee or assignees obtain a summons for the exa- mination of a party under the 120th section of the Consolidation Act (12 & 13 Vict. c. 106.) who is suspected of having bankrupt's property. Ex parte Dvmsdale, in re Bitnsdaie, 23 Law J. Rep. (h.s.) Bankr. 41; 4 De Gex, M. & G. 873. A Commissioner, in the absence of one of the cre- ditors' assignees, ordered a sale of part of the bank- rupt's effects; that assignee appealed, but did not enter his petition until more than twenty-one days from the date of the Commissioner's order : — Held, that the discretion of the Commissioner could not be inter- fered with, and also that the appeal was too late, the case falling within the 12th section of the act, 12 & 13 Vict. c. 106. Ex pa/rte Flood, in re Ford, 24 Law J. Rep. (n.s.) Bankr. 1; 5 De Gex, M. & G. 398. Personal service of a summons, issued under sec- tion 78. of the statute 12 &13 Vict. c. 106, is effected by shewing the original and leaving a true copy con- taining the copy ofthe signature of the Commissioner: therefore an adjudication made upon an alleged act of bankruptcy in not, under the 80th section, paying, &c. within " seven days after personal ser- vice" of the summons, was annulled, on the ground that the copy served did not contain such signature, and was not a " true copy." Ex parte Ti/ndal, in re Tindal, 24 Law J. Rep. (n.s.) Bankr. 18. A trader did not object at the time of the service, but did not appear at the appointed day : — Held, that this was no waiver within the 80th Rule in Bank- ruptcy. Ibid. Although the assignees delay selling under an order obtained by a mortgagee for sale of the mort- gaged property, with liberty for him to bid, the Court will not depart from the rule of not giving to the mortgagee the conduct of the sale. Ex pa/rte M'Gre- gor, in re Laird, 4 De Gex & Sm. 603. The 17th of the Rules and Orders in Bankruptcy does not render it necessary or proper to serve on a mortgagee notice of an application for an order for the sale of chattels alleged by the assignees to be in 86 BANKRUPTCY. the bankrupt's reputed ownership. Such an order should be made on an ex parte application of the as- signees shewing a primd facie case. £x parte Young, in re Roebuck, 4 De Gex, M. & G. 864. Where an order of reversall upon appeal rested in minutes, and the counsel for the respondents stated that material considerations had not been brought before the Court, the Court acceded to a motion for rehearing, although twenty-one days had elapsed. £x pa/rte Turner, re Crosthwaite, 2 De Gex, M. & G. 927. Qucsre whether such rehearing was a matter of right. Ibid. The Commissioner ought to make an order for the sale of property alleged by the assignees to be in the bankrupt's reputed ownership, on their ex parte application, supported by primd facie evidence. Ex parte Wood, in re Sniton, 4 De Gex, M. & G. 861. (0) InSPEOTION of DOCtTMEITTa. A creditor, who had proved his debt, applied by his attorney, under the 232nd section of the statute 12 & 13 Vict. c. 106, for leave to inspect the affi- davit of debt, the proof of the act of bankruptcy, and other proofs filed in court, on which the adjudi- cation was founded, with a view to impeach the adjudication. The officer of the district court re- fused compliance. The creditor appealed, and it was held, that this was not a " reasonable" request, within the meaning of the statute ; that the applica- tion was properly refused, and that the appeal must be dismissed, with costs. Qucsre — Whether the above-mentioned documents and proofs are within the language of the 232nd section. Ex parte Mmell, in re Brewer, 21 Law J. Rep. (n.s.) Bankr. 27 ; 1 De Gex, M. & G. 491. (P) Solicitor. [As to bills of costs, see Reg. Gen. Bankr. May 19, 1854, 24 Law J. Rep. (w.s.) xiii xv.] A solicitor acted for an arranging debtor until the proposal for arrangement was rejected, and the debtor was declared bankrupt. The Commissioner then ordered the official assignee to appoint a soli- citor to act in the matter ; and a solicitor was ac- cordingly appointed : — Held, that the former soli- citor had no right to appeal against the order. Ex parte Smith, in re Coates, i De Gex & Sm. 287. ^Q) Messehgeb ahd othek Officbks. [Office of Secretary abolished by IS & 16 Vict, c. 77 ; and Registrar appointed to his duties by 17 & 18 Vict. c. 119. 88. 3 — 8. Charges of Accountant regulated by Reg. Gen. Bankr. May 19, 1854, 24 Law J. Rep. (n.s.) xv.] A messenger in bankruptcy, under a warrant to seize the goods of A, seized the goods of B, acting hand jide with the intention to carry the warrant into execution : — Held, that he was not entitled to the demand of a perusal and a copy of the warrant under section 107. of 12 &13 Vict. c. 106, and that he was liable in an action of trespass brought against him alone, though no such demand had been made or left at his usual place of abode. The words of the above section " acting in obedience to any war- rant," are not satisfied by bona fides and intended obedience. Munday v. Stubbe, 20 Law J. Rep. (h.s.) C.P. 59 ; 10 Com. B. Rep. 422 ; 1 L. M. & P. P.C, 675. A creditors' assignee in insolvency under 6 & 6 Vict. c. 116. s. 1. and 7 & 8 Vict. u. 96. s. 4. is not liable for the messenger's fees, except upon an ex- press contract. Bomber v. Ball, 20 Law J. Rep. (if.B.) C.P. 157j 10 Com. B. Rep. 780. (R) Costs. [See 18 & 19 Vict. c. 15. ». 10, as to orders for costs not affecting lands unless registered.] A writ of summons having issued against the de- fendant, a summons in bankruptcy was afterwards taken out against him, returnable on the 17th, on which day an order was made by the Commissioner, pursuant to the 12 & 13 Vict. c. 85, that the costs of the summons should abide the event of the action. On the 15th of October a summons was taken out before a Judge, returnable on the 17th, for staying proceedings on payment of the debt and costs, and an order for that purpose was made on the 18th. One bill having been taxed in Bankruptcy, and the other in this court, the Master added them together, and judgment was signed for the amount : — Held, that the judgment was regular, as the costs in bank- ruptcy, when taxed by the Master in Bankruptcy, became part of the judgment of the Court. Webb V. Bewlett, 20 Law J. Rep. (n.s.) Exch. 134 ; 6 Exch. Rep. 107. A trader, who was in insolvent circumstances, was the owner of leasehold property which was charged with an annuity. He committed an act of bank- ruptcy, and after that, A B paid off the arrears of the annuity and another sum, making 900^., and with the concurrence of the trader took an absolute assignment of the annuity and arrears. Then the trader was adjudicated bankrupt, and assignees of his estate were appointed, after which A B bought the leasehold property so charged, and the same was assigned to a trustee for him. Upon a bill being filed by the assignees, the sale of the annuity and of the leasehold was set aside as fraudulent and void, with costs to be paid by A B to the solicitor of the assignees. An order was made in the bankruptcy, by which it was declared that the order as to costs in the decree was to be without prejudice to any ques- tion between the trader and A B. The trader ob- tained his certificate, and the leaseholds having been sold and all the debts paid, there remained a surplus. The trader assigned all his effects for value, and the purchaser claimed the surplus, but A B insisted that he was entitled to be repaid out of it such costs of the proceedings in Chancery and Bankruptcy as he had paid to the assignees ; but the Court held, that he was not entitled to them as against the trader or his assignee for value, because, if he and the trader were trustee and cestui que trust, in the purchase, he had set up an adverse title to the trader ; and be- cause, if he and the trader had in the purchase combined to defeat the creditors, it would be against public policy to give him the costs ; and held, there- fore, that the purchaser from the trader was entitled to the surplus. Ex pa/rte James, in re Tratt, 22 Law J. Rep. (n.s.) Bankr. 8 ; 3 De Gex, M. & G. 493. Solicitors to the assignees of a bankrupt had their bills of costs taxed in March 1851 by the Registrar of the Birmingham District Court, ex parte, without BANKRUPTCY— BARON AND FEME. 87 notice to the asBigneea, but in the presence of the official assignee, who had since died. In April 1853 the assignees and some of the creditors applied to the district court for a re-taxation of the bills, which, save 1001., had not been paid, and re-taxation was refused by the Commissioner ; but upon appeal, held, that such bills must be re-taxed. As to the jurisdiction of the Registrar to tax, Lord Justice Knight Bruce doubted whether he had such juris- diction prior to the Orders of October 1852, made pursuant to the Consolidation Act, 1849; but he had no doubt that, whether the Registrar had such jurisdiction or not, it was the duty of the Commis- eioner to review the taxation as a matter of course, and without proof of objectionable items ; and Lord Justice Turner, while he considered it to be clear that the Commissioner had authority to review the taxation, held it to be his duty to exercise that authority in a case where the bills contained a series of items primd facie unreasonable and entirely un- explained. Ex parte Bate/man, im re Barbart/, 23 Law J. Rep. (n.s.) Bankr. 8; 6 De Gex, M. & G. 358. Two out of four bankrupts appealed from the ad- judication, and the Court of Appeal gave them leave to try the question in an action, upon the under- taking of their solicitors to abide by such order as the Court of Appeal might make as to costs. The ad- judication was sustained at law: — Held, that the appeal must be dismissed, but without costs; the solicitors, in pursuance of their undertaking, to pay the costs of the action. Ex parte Oastelli, in re CastelU, 23 Law J. Rep. (n.8.) Bankr. 42. Where the stock of a bankrupt had been sold in the country by tender, the Court directed that the taxation of the scale of charges for such sale should be the same as adopted in London, namely, a scale between the charges for sales by auction and sales by valuation. Ex parte Himt, in re M'Kerma, 23 Law J. Rep. (ir.s.) Bankr. 48; 5 De Gex, M. & G. 387. (S) Dividends. Where there was joint estate to the amount of 13^., Held, that the joint creditors could not receive divi- dends from the separate estate until all the separate creditors were paid in full, although it did not appear that after payment of costs any part of the 13/. would remain for distribution. Ex parte Kmnedy, in re EntwiatU, 2 De Gex, M. & G. 228. h) Property, and Settlement thereof. BARON AND FEME. [See AooonifT Stated — Bigamy — Divorob — DOWEE MaERIAQE — SETTLEMEMr.}- (A) Husband. (a) Bights of, in Wife's Property. (b) Bight to Custody of Wife. (c) Liability for Wife's Eimeral and Neces- saries. (d) Liability for Wife's Interest in Shares. (e) Liability for Wife's fraudtdent Mis- representations. (/) Property, and Settlement thereof. (B) Wife. (a) Bights and' Privileges. (C) Separate Estate. (a) Power over and Disposition of. (5) Liability in respect of. CD) Separation Deeds. (E) Actions and Suits. (o) Actions, when maintainable alone or (b) Smts. ( e ) Pleadings and Evidence. (A) Husband. (a) Rights of, in Wife's Property. A sum of money had been paid into court to the account of a female infant, a ward of court. The infant married, and a petition was presented by her and her husband for payment of the money out of court to the husband, upon the authority of two cases cited. The Court disapproved of the principle upon which the previous cases had been decided; but allowed the petition on affidavits that it would be beneficial for the husband to receive the money. In re Coohe, 21 Law J. Bep. (n.s.) Chanc. 145. A testator gave a sum of money to trustees on trust to pay the income to his wife for life, and then to divide the capital between his three daughters; one of the daughters who was married, died; her husband became bankrupt in 1839, and died before the tenant for life. When the tenant for life died, a, bill was filed by the assignees of the husband against the defendant, who was the administrator of both husband and wife, claiming to be entitled to a third of the money left by the testator: Held, that the husband was absolutely entitled in right of his wife to the reversionary interest expectant upon the death of the tenant for life, although that interest was not reduced into possession; and that the assignees had the same right to receive the money as the husband would have had. Drew v. Long, 22 Law J. Rep. (n.s.) Chanc. 717. Held, also, that the late Bankruptcy Act, 12 & 18 Vict. c. 106, did not vary the law in respect of prior bankruptcies, which made an adjudication conclusive unless disputed within a limited period. Ibid, Where a lady was possessed of jewels and orna- ments of the person before her marriage, and after her marriage they were in all writings spoken of by her husband as hers, and Were deposited with bankers, with whom she, with his consent, kept a separate account, and after her lunacy the husband made his will, giving her the use of his plate, furniture, linen, jeweli, and household effects, including the jewels and effects " which belonged to her before her mar- riage," and which he "had assumed by marital right" during her life; upon the death of the lunatic, who survived her husband, the Court held, that the next- of-kin of the husband were entitled to such of the articles as did not consist of paraphernalia, as their property, but as to such as formed paraphernalia, the next-of-kin of the wife were entitled to elect whether they would take them or the benefits given by the will. In re Hewson, D'Almaine v. Moseley, 23 Law J. Rep. (n.s.) Chanc. 256. 88 BARON AND FEME; (B) Wife. A manied woman having a reversionary interest in leasehold premises joined with her husband in levying a fine nwr concessit of the premises, which was declared to enure as to the reversionary interest in trust for the husband absolutely for the residue of the term for which the premises were holden. The existing term expired, and the lease was several times renewed. The wife survived her husband : — Held, that the right of renewal passed by the fine with the term, and the wife having parted with all her interest, the renewed term belonged to the hus- band's estate. Dickens v. Unihank, 24 Law J. Rep. (n.b.) Chanc. 501. (J) Right to Custody of Wife. Where a wife is voluntarily and without any restraint absent from her husband, a court of com- mon law has no jurisdiction upon his application to issue a writ of habeas corpus to bring up her body. Ex parte Sandilands, 21 Law J. Bep. (n.s.) Q. B. 342. (c) Liability for Wife's Fv/neral and Necessaries. When a wife dies, her husband is bound to pro- vide her with a funeral at a reasonable expense ; and if he does not do so, any person who voluntarily employs an undertaker and pays him for performing such a funeral, is entitled to recover the sum so ex- pended, from the husband, in an action for money paid. Ambrose v. Xerrison, 20 Law J, Rep. (n.s.) C.P. 135 ; 10 Com. B. Rep. 776. By marriage a wife acquires the right to be main- tained according to the estate and condition of her husband, of which right she cannot be divested, ex- cept by her own misconduct ; and, therefore, it is no defence to an action brought against a husband for necessaries supplied to his wife, that at the time they were so supplied, he was confined in an asylum as a dangerous lunatic. Head v. Legard, 20 Law J. Rep. (h.s.) Exch. 309 ; 6 Exch. Rep. 636. In an action against a husband for goods supplied to his wife, evidence is admissible for the defence that other gOods of a like nature have been supplied to her by other tradesmen within the same period. Senaux v. Teahle, 22 Law J. Rep. (n.s.) Exch. 241; 8 Exch. Rep. 680. (d) Liability for Wife's Interest in Shares. [See Dodgson v. Bell, title Bankers and Bank- ing Company (A) (6) (1).] (e) Liahility for Wife's franduleni Misrepreaen- tations. Although a married woman is generally responsible for all torts committed by her during coverture, and the husband must be joined with her as a defendant, yet she is not responsible for, nor can the husband be sued in respect of, a fraud which is directly con- nected with a contract by her, and which is in fact the means of effecting it. Therefore, an action will not lie against husband and wife for a false and fraudulent representation by the wife that she was sole and unmarried, whereby the plaintiifs were in- duced to take her promissory note as security for a loan to a third person. Fairhurst v. the Liverpool Adelphi Loan Association, 23 Law J. Rep. (n.b.) txch. 163 ; e. c. The Liverpool Adelphi Loam Asso- ciation \'. Fairhurst, 9 Exch. Rep. 422. (/) Property, and Settlement thereof. [See Settlement.] Ejectment to recover two undivided third parts of an estate called " Horsecroft." J P, being seised in fee of Horsecroft, before his marriage with M C, executed an indenture of settlement, in 1770, whereby it was witnessed that in consideration of an intended marriage between himself and M C, and of the conveyance and settlement by M C of the estate, money, &c. thereinafter mentioned, and of the bene, fit arising to J P by the marriage, and for settling a jointure and maintenance for M C and her children, and for settling 'the free estate called Horsecroft belonging to J P, he, the said J P, granted, sold, &c. to trustees and to their heirs, all that freehold estate and right of J P to the said estate and other the premises intended to be released by M C. It was then further witnessed, that in consideration of the marriage and of the jointure, and for settling the freehold estate, together with the other monies, &c. J P bargained, sold, &c. to the trustees, in trust for M C to the use of the first son of the said J P on the body of the said M C lawfully begotten, and to the heirs male of the said son lawfully begotten. J P had four children, John P, who died unmarried and intestate, and three daughters. The two lessors of the plaintiiT are the heirs-at-law of two of the daughters, and the female defendant is the other daughter. J P, in 1823, made his will as follows ; " Also I give Horsecroft, my estate that I now live in, to my son John P, a lunatic." He then gave the residue of his estate to his daughter, the defen- dant : — Held, dissentienle Piatt, B., that the deed was inoperative ; and by the whole Court, that the son John P took under the will an estate in fee in Horsecroft. Doe d. Pottow v. Friclcer, 20 Law J. Rep. (N.s.) Exch. 265 ; 6 Exch. Rep. 510. (B) Wife. (a) Sights and Privileges of. [See ante, (A) (6).] The practice which has prevailed of discharging from custody under an execution a married woman who has no separate property out of which the debt can be satisfied, prevails equally whether the husband be or be not taken in execution with her. Larlein v. Ma/rshaU dissented from. Edwards v. Martyn, 21 Law J. Rep. (n.s.) Q.B. 86; 17 Q.B. Rep. 693. (6) Property, and Settlement thereof. [See Settlement.] By a marriage settlement, in consideration of the intended marriage and of the wife's fortune, certain premises were settled to the use of the husband and wife for life, and after the decease of the survivor, in case there should be only one child then living and no other child should be dead leaving issue, then to the use of such one child in fee ; but in case there should be more than one such child living at the decease of the survivor of the husband and wife, or any child or children should be then dead leaving issue, then to the use of all and every one or more of such children of the marriage and such children's children respectively, for such estates, &c. as the husband and wife or the survivor should appoint, and, in default of appointment, to the use of all and every the children of the marriage as tenants in com- BARON AND FEME; (B) WirE. 89 mon in tail, with cross remainders ; and for default of all such issue to the use of the wife's brothers and sisters in fee. There were issue of the marriage two children, who both died without issue before the sur- vivor of the husband and wife. No appointment was ever made under the power : — Held, by Lord Oamp- heU, C.J., Coleridge, J., and Wightman, J., that the devise contemplated three contingencies, the first two of which had failed ; and that the third, viz., the default of all issue of the marriage at the decease of the survivor of the husband and wife, had taken efiFect, and that consequently the ultimate limitation to the wife's brothers and sisters took effect. Held, by Crompton, /., that the ultimat&limitation to the wife's brothers and sisters was contingent on the event of there being more than one child of the marriage living at the death of the survivor, or of a child or children of the marriage being then dead leaving issue ; and that that event having failed, the ultimate limitation never took effect ; and that the words " in default of all such issue " did not mean " in the event of there being no child living at the death of the survivor." Doe d. Lees v. Ford, 23 Law J. Rep. (n.s.) Q.B. S3 ; 2 B. & B. 970. A married woman can do no act to affect her re- versionary interest in a sum of money charged upon land, during the lifetime of the tenant for life. Holiy V. AUen, 20 Law J. Eep. (u.s.) Chanc. 199; 4 De Gex & Sm. 289, now,. Hobhy v. Collins. The husband of a married woman became in- solvent, and \iQl. belonging to her was claimed by his assignees, but upon the application of the wife, the Court ordered the surplus, after payment of the costs of all parties, to be settled for the benefit of the wife and her children. In re Cutler's Trust, 20 Law J. Eep. (ir.a.) Chanc. S04; 14 Beav. 220. A lady, who was entitled to certain property for life, married without a settlement, and an order was made by the Court that the dividends should be paid to the husband during her life. The husband after- wards became a bankrupt, and neglected to maintain his wife : — Held, that under these circumstances, the wife was entitled to a portion of the property for her separate use, and the husband's assignees to the rest of the property. Vmigha/n v. Buck, 20 Law J. . Rep. (ir.s.) Chanc. 335 ; 1 Sim. N.S. 284. A wife's equity to a settlement does not depend upon her right of property, but only attaches to and arises upon her husband's legal right to the present possession of the property. 'Therefore a settlement cannot be claimed in respect of a reversionary in- terest in property so long as such interest continues reversionary. Oslorn v. Morgwn, 21 Law J. Rep. (n.s.) Chanc. 318 ; 9 Hare, 432. A, the husband of B, to whom a share of the residue of a testator's estate had been bequeathed, assigned it to C for valuable consideration. A sum of stock representing this share was carried to the account of B in a suit. The proper terms of a settlement of the part allowed to B, by way of eqtiity of settlement, were held to be to B for life, with remainder to her children as she should appoint, with remainder to the children in default of appoint- ment, and, in default of children, if B should survive A, to B absolutely; but, if A should survive B, to C. Carter v. Taggart, 21 Law J. Rep. (if.s.) Chanc. 216 ; 1 De Gex, M. & G. 286; 6 De Gex & Sm. 49. The Court has the power of directing that, in BiflEST, 1850—1855. the last event, the fund shall be at the disposal of the wife by will ; and that in default of such dispo- sition, it shall go to the next>-of-kin of B ; but a spe- cial case must be made for such a settlement, and the circumstance that B had needy relatives was held not sufficient to justify it. Ibid. Under the will of a testator a married woman was entitled to a sum of 600Z. and upwards, and a share in a sum set apart to answer a life annuity, amounting to 346/. In an administration suit the 6p0i. was paid to the husband, with the consent of the wife. The husband and wife then joined in assigning their reversionary interest in the annuity fund for value, and the assignees procured a stop- order upon the fund. On the death of the annui- tant, the wife petitioned for a settlement of the fund : — ^el^u reversing the order of the Court below dis- missing the petition, that the wife was entitled to have the whole fund settled on herself and children, the husband being insolvent and having made no settlement upon her; that the claim of the wife was properly raised by petition ; and that the assignees, though no parties to the administration suit, had, by obtaining the stop-order, sufficiently brought themselves before the Court to enable it to deal with the fund upon petition. Scott v. ^pasJiett, 21 Law J. Rep. (U.S.) Chanc. 349; 3 M. & G. 599. Deeds of gift by a wife to her husband of property over which she has a power of appointment are re- garded by the Court with jealousy, and inquiries will be directed as to the circumstances under which they were executed. Nedhy v. Nedby, 21 Law J. Rep. (N.S.) Chanc. 446; 6 De Gex & Sm. 377. Where a wife makes a deed of gift to her husband of property over which she has a power of appoint- ment, and the deed is afterward impeached by her, the burden lies on her of shewing that the circum- stances were such as ought to invalidate it, and the burden does not lie on the husband of shewing that the circumstances were such that it ought to be sup- ported. Ibid. Property was settled on A, a married woman, for her life, with remainder to such uses as she should by deed appoint. A, by deed, dated in 1821, ap- pointed the reversion to B, her husband; and in '1836 filed a bill to have the deed set aside. The circumstances relied on by A were, that the deed had been prepared by B's solicitor, that it had not been read over at the time of the execution, and the evidence of one of the attesting witnesses that she was agitated and distressed at the time of the execu- tion, and signed it in a reluctant manner : Held, that these circumstances were not such as to invali- date the deed. Ibid. Upon the marriage of an infant the husband by an ante-nuptial settlement covenanted that upon his wife attaining the age of twenty-one he would join and concur with her, if she would consent thereto, in settling upon her and the children of the marriage certain property to which she would become entitled for her separate use. The wife attained her age of twenty-one, and refused to join in setthng the pro- perty : — Held, that the settlement was inoperative. In re Waring, 21 Law J. Rep. (n.s.) Chanc. 784. After the wife had attained her majority, informa- tion was given by her, to the trustees of the will under which she was entitled to the above property, that a bill would be filed against them charging them N 90 BARON AND FEME; (B) Wipe. with breaches of trust and eeeting an account. The trustees, after this notice, paid her share into court, under the Trustees' Relief Act. Upon petition for payment of the money out of court, the trustees were refused their costs. Ibid, A renewable leasehold, the property of the wife, was, upon her marriage, settled upon trust for her separate use during the joint lives of herself and her husband, and in the event of her surviving, upon trust for her absolutely, but in case she died in the lifetime of her husband, then on trust for him for life, with remainder to the issue of the marriage ab- solutely. The husband and wife joined in executing several deeds purporting to charge all their interest in the leasehold premises under the settlement to secure several sums of money : — Held, on exceptions to the Master's report, that upon the wife surviving her husband such deeds were invalid ; that the hus- band could not dispose of his wife's reversionary in- terest in the leasehold ; that the power of the husband to dispose of his wife's reversionary interest in chattels real depended upon whether it could vest in posses- sion during her coverture, and that this interest was not assignable by the husband, as it could not vest during the coverture; and the exceptions were overruled. Duberly v. Day, 22 Law J. Rep. (u.s.) Chanc. 99 ; 16 Beav. 33 : affirmed S H.L. Cas. 388. A married woman, being entitled to a reversionary interest in the residuary estate of a testator, joined her husband in assigning it, as a collateral security, for the payment of 4,000Z., &c. He afterwards be- came utterly insolvent, and unable to maintain his wife and family, three of whom were above twenty- one. A sum of more than 2,000^., part of the fund, fell into possession; and, upon the application of the wife, the Court, after payment of costs of all parties, ordered it to be settled for the benefit of the wife and her children, with liberty to apply upon the remain- ing part of the fund falling into possession. MaV' shall V. Fowler, 22 Law J. Rep. (u.s.) Chanc. 213; 16 Beav. 249. A married woman, whose husband was a bank- rupt, became entitled to a fund under 2001. There was an affidavit of no settlement upon the marriage, and that the wife had no other fund out of which to maintain herself or her children ; — Held, that the smallness of the amount did not prevent the wife's right to a settlement, and that the special circum- stances were sufficient to induce the Court to settle the whole fund upon her and her children ; the hus- band's assignees being excluded from any share. In re Kmcaid's Trust, 22 Law J. Rep. (N.s.) Chanc. 395 ; 1 Drew. 326. A feme covert will be allowed to revoke a consent to the payment of her fund in court to her husband, when the object of that consent may be defeated by his previous insolvency. Watson v. Marshall, 22 Law J. Rep. (n.s.) Chanc. 895; 17 Beav. 363. The provisional assignee of the Insolvent Debtors Court claimed a fund belonging to a wife, which, upon her consent, had been ordered to be paid to her husband who had been insolvent; — Held, that her consent had not vested the fund in her husband ho as to deprive this Court of its jurisdiction to re- scind the order and direct the fiind to be settled for the benefit of herself and family. Ibid. Where there was a power of advancement in fa- vour of an intaut female legatee to whom an interest for life for her separate use, without power of antici- pation, was given, with remainder to her children, the Court, after the legatee had attained twenty-one and married, ordered an advancement to be made for the purpose of enabling the husband to enter into a partnership, upon the husband insuring his life and entering into a bond for the payment of the svim ad- vanced and the premiums on the policy. Phillips V. Phillips. 23 Law J. Rep. (h.s. ) Chanc. 7 ; Kay, 40. A married woman whose husband does not main- tain her is not entitled, as against the particular assignee of the husband for value, to maintenance out of the income of real and personal estate to which the wife is entitled in equity for life, l^dd v. Lister; and Bassil v. Lister, 23 Law J. Rep. (h.s.) Chanc. 249; 3 De Gex, M. & G. 857; 10 Hare, 140. Distinction between the cases where the wife takes an absolute interest in the estate or fund, and where she takes only for life. Ibid. A married woman being entitled to a freehold and a copyhold estate for life, the husband and wife joined in assigning both estates to A as a security for money advanced to the husband, and afterwards joined in assigning the freehold estate to B for the like pur- pose : — Held, that, as against the wife, B was entitled to have A's charge satisfied out of the copyhold estate as far as it would extend. Ibid. Whether the wife could be regarded as a surety only in respect of her husband's debts quc^e. Ibid. A testator gave real estate to trustees upon T;rust to sell, and to pay the proceeds to the children of A B, upon the youngest child attaining twenty-one. Before the youngest child attained twenty-one, one of the children, a married woman, with her husband, mortgaged her share and interest by an indenture duly acknowledged pursuant to the Fines and Reco- veries Act: — Held, that the interest of the married woman passed by the mortgage. Briggs v. Cham- herlaine, 23 Law J. Rep. (n.s.) Chanc. 635; 11 Hare, 69. Jewels purchased by the husband and worn by the wife with others belonging to her husband be- come her paraphernalia, in the absence of evidence to the contrary; but family jewels by being merely worn by the wife do not become part of her para- phernalia. Jervoise v. Jervoise, 23 Law J. Rep. (n.s.) Chanc. 703; 17 Beav. 566. Husband and wife assigned a reversionary legacy of iOOl. to secure a debt of the husband's, and he afterwards became bankrupt : Held, on the legacy felling due, that the wife was entitled to have ZbOl. settled out of that and other monies to which she was also entitled. Walker v. Drury, 23 Law J. Rep. (h.s.) Chanc. 712; 17 Beav. 482. A fund was in court belonging to a married wo- man, she and her husband being both domiciled in Scotland. The husband and wife had, by memo- randum, assigned this fund to a creditor of the husband. By the law of Scotland, a husband is ab- solutely entitled to his wife's personal estate: Held, that the wife had no equity for a settlement. M'CormicJe v. Garnett, 23 Law .1. Rep. (n.s.) Chanc 777; 5 De Gex, M. & G. 278; 2 Sm. & G. 37. Although a legal estate in lands is outstanding in trustees, still a married woman cannot pass a bene- ficial or any interest in the lands unless the deed is duly acknowledged under the 3 & 4 Will. 4. c. 74. BARON AND FEME; (B) Wipe. 91 Field V. Moore, 24 Law J. Rep. (n.s.) Chano. 161; 19 Beav. 176. A widow entitled, under a former eettlement, to the dividends of 10,000/. for her life, which she be- lieved to be settled to her separate use, married an attorney who had seen the former instrument; she had the advice of her own solicitor, and she required all her property to be settled on herself. The new settlement comprised all her property, excepting the dividends of the 10,000J.,8o that the second husband did not receive any part of her fortune, and she had exclusively of this fund an income of about 450^ per annum. A separation took place eight weeks after the marriage, and the wife obtained a sentence of divorce 6, meimil et thoro on the ground of adultery, but no alimony was decreed. The wife filed her bill to enforce, among other things, her equity for a set- tlement : Held, varying a decree of the Master of the Rolls, who had ordered half the dividends to be paid to the wife, that she was entitled to the whole. Barrow v. Barrow, 24 Law J. Rep. (n.s.) Chanc. 267; 5 De Gex, M. & G. 782j 18 Beav. 529. The fact of a wife living separate from her hus- band by mutual agreement, will not give her an equity to a settlement out of her future property, where such a provision has already been settled upon her as would have entitled the husband to such fu- ture property if they had continued to live together. In re ErsJcme's Trusts, 24 Law J. Rep. (n.s.) Chanc. 327; 1 Kay & J. 302. A married woman may convey a reversionary in- terest in a sum of money, the produce of real estate directed to be sold by trustees after the death of the tenant for life. Tuer v. FuvTier, 24 Law J. Rep. (N.S.) Chanc. 663; 20 Beav. 660. Settlement of the whole of the share of a married woman in the estate of an intestate upon the married woman and her children, with a provision that if there should be no children, and the husband should survive the wife, the assignees of the husband should take' the fund, the case being one in which the hus- band being an uncertificated bankrupt, had married an infant and afterwards abandoned her. Gent v. Sarris, 10 Hare, 383. A female infant with a small fortune being per- suaded to contract a marriage with a young man without fortune, who, soon after the marriage, sepa- rated from her, on a bill by her for a settlement, the Court ordered the whole to be settled on her and her children. Layton v. Layton, I Sm. & 6. 179. A woman, joint tenant of a reversionary interest in a legacy of 2,000i. stock, married, and after the marriage the husband became bankrupt, and then the wife died, leaving the tenant for life of the fnnd surviving : Held, that by the death of the wife the other joint tenants of the fund became entitled to her interest therein by survivorship ; that that was the elder title to that of the husband, which also accrued after the death of the wife ; and that upon the death of the tenant for life the other joint tenants, and not the assignees of the husband, were entitled to what had been the wife's share of the fund. In re the Trusts of Barton's PTiM.lOHare, 12. A husband and wife in America by a deed of separation agreed to live apart, and that the wife should be at liberty to carry on business, &c. and to retain for her own use all her present and future property in any way acquired. Subsequently a legacy having accrued in right of the wife, was car- ried to the account of the husband and wife. No- thing having been heard of the husband for fourteen years, on a petition presented by the wife, asking the transfer to her of the stock, the Court directed the stock to be sold, and the proceeds paid to her on her sole receipt. Whitlow v. Dikuorth, 2 Sm. & G. 35. A, holding a promissory note from B for a 'debt, directed B to transfer it in his books to the names of A and his wife, expressing an intention to benefit his wife, and he cancelled the note and took a fresh one to him and his wife. A died, leaving his wife surviving him : — Held, that the debt belongedt o the wife, and did not form part of the testator's general personal estate. Oosling v. Gosling, 3 Drew. 335. As between the husband's creditors and the wife, in respect of the wife's equity for a settlement, the Court will, under circumstances, give the wife more than one-half ; and where the wife had been at the time of the marriage and long afterwards in circum- stances of comfort, and was reduced to distress by the husband's embarrassments, the Court gave the costs of the petitioner and of the husband's assignees out of the fund, which was 6Slt. — iOOl. to the wife, and the remainder to the petitioner ; the wife's costs out of her own fund. Ex pa/rte Pngh, 1 Drew. 202. A husband had become an insolvent in the year 1835 and a bankrupt in 1839. The wife became entitled to l,000i. Upon a claim by her, it appeared that she was in indigent circumstances, and had no settled means of subsistence, and that her husband was unable to maintain her in a respectable position; also that there was no settlement, and that the hus- band had not received any property in right of his wife, and that there was no issue of the marriage : — Held, that the rule to give one-half to the creditors and to settle the other half upon the wife, applied. The fund was, to avoid the expense of a settlement, directed to be brought into court, and the dividends to be paid to the wife for life ; in other respects the order was made according to the order in Carter v. Taggart. Bagshaw v. Winter, 5 De Gex & Sm. 466. On a claim by a wife against her husband and his assignees in bankruptcy, it appearing that a large portion of her own fortune had been settled on her, but that no property of the husband had been settled ; and that after his bankruptcy, her husband had deserted her — the whole of a sum of 1,000?., accrued to her in possession since the bankruptcy, was ordered to be settled to her separate use, with remainder to her children. Bunkley v. Dwnkley, 4 De Gex & Sm. 570. A married woman domiciled in France entered into a contract in England respecting her reversionary interest in trust money invested in the English funds, which was substantially valid according to French law, although invahd according to English law; but the contract was not entered into in the manner prescribed by French law, which requires that there should be as many original instruments as there are distinct parties to the contract: — Held, that the French law gave capacity to make the con. tract ; but that the English law regulated the form of it, and that therefore the contract was valid : and it was enforced by decree. Gviefraite v. Yowng, 4 De Gex & Sm. 217. 92 BARON AND FEME; (B) Wife. In a conflict of evidence as to the law of France on a point relating to the rights of a married woman in personalty in reversion, no presumption can be derived from the law of England. Ibid. Locus regit actum is a canon of general juris- prudence, and must be assumed, in the absence of contrary evidence, to apply to a system of foreign law. Ibid. The Court, under the circumstances of the case, directed the whole of a trust fund claimed by the assignees in bankruptcy of the husband in right of his wife, to be settled for the benefit of the wife and children. JDunMey v. Bunkley, 2 De Gex, M. & G. 390. An Englishwoman married a domiciled French- man. Articles were previous to the marriage exe- cuted in the English form, by which the wife became entitled to 200/. a year. Her husband afterwards separated from her, and subsequently the French .court condemned her for adultery : — Held, that the contract of marriage was English, and that the rights of the parties were to be regulated by the English law; and further, property of the wife having fallen into possession, and the moral conduct of both par- ties being reprehensible, the income of the fund must be equally divided between them. WaMs v. Shrimpton, 21 IJeav. 97. The Court, under very peculiar circumstances, ordered the whole income of a fund in court belong- ing to a feme covert, who had committed adultery, to be paid to her, on terms. In re Lewin's Trust, 20 Beav. 378. A sum of 462/. stock, to which a married woman, the wife of an insolvent, was entitled in remainder in her own right at the time of the insolvency, having fallen into possession, a settlement of the whole sum, after payment of costs, was directed to be made for the benefit of the wife and children, against a purchaser from the official assignee of the husband. Francis v. Bracking, 19 Beav. 347. A married woman was entitled to 602. in court, but on her marriage she was indebted to the extent of 100/. which had been proved under the husband's bankruptcy ; — Held, that the assignees were entitled to the whole fund. Bonner v. Bonner, 17 Beav. 86. The release by husband and wife of a sum of money secured by bond to A, and payable to the wife after A's death, held not binding on the wife on her surviving both A and her husband. Rogers v. Acaster, 14 Beav. 44.5. Where a feme covert is entitled to a reversionary interest in a chose in action, the release of the hus- band is as inoperative as his assignment to bind his wife's right by survivorship. Ibid. (c) Consent. Articles made on the marriage of a female infant, recited that it had been agreed that all the real and personal estate to which she was then or thereafter might be entitled should be settled, and the husband covenanted "in case she would voluntarily consent thereto, but not otherwise," that he and she would settle the same ; — Held, that the consent applied only to real estate, and that the personal estate must be settled though the wife refused to consent thereto. In re Daniets Trust, 18 Beav. 309. (C) Separate Estate. (a) Power over and Disposition of. A testator gave a sum of stock to trustees in trust to pay the dividends to his wife for her separate use for life, and he directed that the fund should remain during his wife's life, and, under the orders of the trustees, be made a duly administered provision for her, and the interest of it given to her, on her per- sonal appearance and receipt by any banker to be appointed in London or elsewhere : — Held, that the testator's widow was not prevented from disposing of her life interest by way of anticipation. In re Boss's Trust, 20 Law J. Eep. (n.s.) Chanc. 293; 1 Sim. N.S. 196. The testator's widow had married a second hus- band, and had assigned her life interest in the fund. Upon her second husband's death, the trustees paid the money into court under the Trustees' Relief Act, and her assignee presented a petition to have the divi- dends paid to him during her life. The petition was opposed, on behalf of the widow, on the ground that she had no power of anticipation under the will : — Held, that the widow was not entitled to her costs, but that her assignee's costs must be paid out of the fund in court. Ibid, A sum of stock was vested in trustees upon trust to pay the dividends to A, a married woman, for her life, for her separate use, without power of anticipa- tion, and, after her decease, to pay the capital to B, On the petition of A and B, the Court ordered a transfer of a portion of the stock to B, and a sale of such other portion as would be sufficient to purchase a government annuity equal to the dividends of the two sums of stock, and that the sum thereby pro- duced should be laid out in the purchase of such annuity, to be settled on A for her separate use, without power of anticipation. Dodd v. Wake, 21 Law J. Rep. (n.s.) Chanc. 356 ; S De Gex & Sm. 226. The trusts of a bond debt due to A, a married woman, were declared to be for A for her life, for her separate use, with remainder for such persons as A should by deed, to be executed by her in the presence of two witnesses, appoint, with remainders over. B, the husband of A, was indebted to C. A signed a letter without any attestation, which contained a de- claration that she deposited the bond as a collateral security to C for the debt due to him from B, and the letter and bond were given to C. The body of the letter had been written by C and given to B, who placed it suddenly before A, requiring her signature, and, in consequence of his urgent request, she signed it. In a suit to enforce C's lien on the bond, — Held, first, that A's life interest in the bond was bound by the letter; but, secondly, that the Court would not, in C's favour, supply the defect in the execution of the power. Thackwell v. Gardiner, 21 Law J. Rep. (n.s.) Chanc. 777; 5 De Gex & Sm. S8. A promissory note by a husband to his wife for payment of money advanced to him by her out of her separate property, constitutes a sufficient decla- ration of trust in favour of the wife. Mv/rrwy V; Glasse, 23 Law J. Rep. (n s.) Chanc. 126. By a marriage settlement certain freehold, lease- hold and personal property was vested in trustees upon trust for the wife during her life for her sepa. rate use, and after her decease for such persons as the wife should appoint by will, and in default of ap- BARON AND FEME; (C) Separatb Estate. 93 pointment for the benefit of the children of the marriage. The wife survived her husband, and appointed all her property by will to her children. She then privately married a second husband, but continued to pass as a widow; and describing herself as a widow she borrowed money and mortgaged her property to secure the repayment. A second marriage cere- mony was afterwards publicly performed: — Held, that the will was revoked as to the freehold estate by the second marriage; that the execution of the power as to the rest of the property did not con- stitute that property separate estate of the mar- ried woman, nor was it liable as such to debts con- tracted during coverture; but that the concealment of the second marriage amounted to an act of fraud, and the mortgagee was entitled to stand as a creditor upon the general assets, and if they were not suffi- cient, then the appointed property was liable to supply the deficiency as in the case of a feme sole, Vcmghan v. Vcmderstegen, 23 Law J. Rep. (n.s.) Chanc. 793; 2 Drew. 165, 363. Ileal estate was purchased by a husband with savings arising from the separate estate of his wife, and personal estate given to her separate use, was transferred into the name of her husband, who, dur- ing his life, received the income for her. The hus- band made a will devising the whole real and perso- nal estate to his brother, but they were held to be the separate estate of the wife, and the brother was de- clared to be a trustee for her. Darhim v. Darhim, 2 3 Law J. Rep. (n.s.) Chanc. 890; 17 Beav. 578. In consideration of a sum of money paid to the husband and wife, the wife concurred with her hus- band in mortgaging leaseholds settled to her separate use. The husband died, leaving his widow his exe- cutrix : — Held, in the absence of evidence that the money was advanced for the wife, that she was en- titled to the amount out of the husband's assets to the exclusion of his simple contract creditors. Hud- son T. Carmichael, 23 Law J. Rep. (n.s.) Chanc. 893; Kay, 613. A married woman to whom a sum of money was payable for her separate use, received a cheque from the Accountant General and handed it over to her solicitor, who accompanied her. The solicitor was on motion ordered to pay the balance to his client, and it was held that the onus being on the solicitor to shew cause for not paying it over, he could not set up a voluntary agreement to pay her husband's debt out of it. Mwmhood v. MUbanke, IS Beav. 36. A gift may be made by a husband to his wife which, though bad in law, will be supported in equity: though the property does not pass at law, yet in equity a hus- band being the legal owner may become a trustee for his wife, and if by clear and irrevocable acts he has made himself a trustee, the gift to his wife will be conclusive. Mews v. Mews, 15 Beav. 529. To constitute a gift between husband and wife there must either be a clear irrevocable gift to a trustee for the wife, or some clear and distinct act of the husband by which he divested himself of his property and engaged to hold it as a trustee for the separate use of his wife. If a man were to deposit money with bankers, directing them to hold it for his wife, that would probably be suflicient. Ibid. A former's wife, with his knowledge and sanction, - deposited the produce of the surplus butter, eggs and poultry with a firm in her own name, and he called it " her money." On his death-bed he gave his exe- cutor directions to remove the money and do the best he could with it for his wife ; — Held, that the evi- dence was not sufficient to establish a gift between them, and that the husband had made neither the firm nor himself trustee for his wife. Ibid. The dividends of stock purchased during coverture in the name of the wife out of funds placed at her disposal for family purposes by her husband, then an aged person, were paid into a bank to her account, and by her applied for domestic purposes. The wife dying in the husband's lifetime, in a suit to adminis- ter the husband's estate, — Held, that the presump- tion that the stock was a gift to the wife arising from the purchase being made in her name, was rebutted by the mode of dealing with the dividends. Hayes v. Kindersley, 2 Sm. & G. 195. A marriage settlement recited an agreement that the future property of the wife should be settled, but the covenant to settle was, on the part of the husband alone, to execute all necessary deeds, so that such property should (so far as he was concerned) be vested in the trustees on the trusts of the settle- ment ; — Held, that property afterwards given to the separate use of the wife was not liable to be settled. Hammond v. Hammond, 19 Beav. 29. (6) Liability in, respect of. A married woman, whose husband was of unsound mind, consulted a solicitor with respect to her sepa- rate estate ; she also communicated with him in respect of certain suits to which her children by their •next friend and also her husband were parties ; she also joined with some of her children in requesting him to take active proceedings in those suits : — Held, that her separate estate was not liable for the costs of the suits. In re Piigh, 23 Law J. Rep. (n.s.) Chanc. 132 ; 17 Beav. 336. The rights of married women may be barred, and their estates affected by active participation in breaches of trust, and if, their powers having been exercised by will, the trust funds become their assets, they must be liable for those breaches of trust — semble But the fact of a married woman having permitted her husband to receive the trust funds does not preclude a right to relief by her or her ap- pointees, for that would be to defeat the purpose for which the trust was created — the protection of the wife against the husband. Hughes v. Wells, 9 Hare, 749. A married woman having a life estate to her sepa- rate use in certain leasehold and personal property, with a general power of appointment by will only, appointed to children : — Held, that in the adminis- tration of her estate a tradesman supplying her with goods, while she concealed her marriage and dealt with him as a single woman, had a claim to be paid out of the appointed fund. Vaiighan v. Vander- stegen, 2 Drew. 408. An administrator ad litem of a married woman does not sufficiently represent her separate estate to enable the Court to decide how far that estate is liable in respect of her acts as a trustee. Shipton V. Rawlim, 4 De Gei & Sm. 477. (D) Separation Deeds. By deed of three parts between husband, wife, and trustee, reciting that differences existed, and that the 94 BARON AND FEME; (E) Aotiows and Sitits. husband and wife had agreed to live separate, the husband covenanted to pay to the trustee an annuity for the separate maintenance of the wife. The trustee having sued the husband for arrears of the annuity, the latter pleaded that he was induced to make the deed by means of false and fraudulent misrepresentations made by the plaintiff to him, that is to say, by the plaintiff, before the making of the deed, falsely and fraudulently representing to him that E, the wife, was a virtuous person, whereas in truth the said E was not a virtuous person, and the plaintiff " had then carnally known the said E, so then being the wife of the defendant, and subse- quently to the intermarriage of the said E and the defendant, and before the making of the deed," which last-mentioned facts the plaintiff concealed from the defendant, and induced him to make the deed, in order that the plaintiff might continue an adulterous intercourse with the said E. At the trial, the plea was proved, and the verdict thereon entered for the defendant : — Held, on motion to enter judg- ment for the plaintiff non obstante veredicto, that although the plea did not shew that the representa- tions set out were necessarily fraudulent, it not being alleged that the plaintiff knew them to be false, or that he knew that E was the defendant's wife at the time he had intercourse with her, yet it might be sustained as a general plea of fraud, which, after verdict, was a good answer to the action. Evans v, Mdmonds, 22 Law J. Rep. (s.s.) C.P. 211 ; 13 Com. B. Eep. 777. Held, also, that it was not necessary to allege that the vrife, as cestui que trust, was a party to the fraud upon the defendant, as a Court of law can only look to the legal rights of the parties to the deed. Ibid. Semhle—per Maule, J., that if the plaintiff, in- tending to deceive the defendant for the plaintiff 's own advantage and the defendant's disadvantage, induced the latter to make the deed by representing a fact to be true which was not true, but about which the plaintiff knew nothing, that would amount to fraud, and avoid the deed. Ibid. A husband in a deed of separation having entered into a covenant with trustees not to molest his wife, against whose debts, &c. he was indemnified, will be restrained from doing any act contrary to the terms of his covenant. Sanders v. Sodway, 22 Law J. Eep. (N.s.) Chanc. 230 ; 16 Beav. 207. A father, upon the marriage of his son, settled real estate upon the intended husband and wife. The settlement contained a proviso that in case of a separation between husband and wife, by reason of any disagreement or otherwise, the interest given to the wife should, during the joint lives of herself and her husband belong to him alone : — Held, that this proviso was in the nature of a condition, — was con- trary to the policy of the law, — and was, therefore, void. Cartmright v. Cartwright, 22 Law J. Bep. (N.s.) Chanc. 841 ; 3 De Gex, M. & G. 982 ; 10 Hare, 630. A, a husband, and B, his wife, agreed to live sepa- rately, and a deed of separation was executed con- taining the usual terms and a covenant by A to pay B an annuity for her life. They lived for some time separately. Afterwards A proposed to B that she should come and live with him, and promised that, in that event, the annuity should be continued. B returned to A, and lived with him until his death : — Held, that the annuity was not forfeited by the re- cohabitation. Webst^ V. Webster, 22 Law J. Rep. (N.S.) Chanc. 837 ; 4 De Gex, M. & G. 437 ; 1 Sm. & G. 489. Although generally the provisions of a separation deed are annulled by reconciliation and re-cohabita- tion, yet a husband may so conduct himself subse- quently as to create new obligations on the footing of the old obligations contained in the deed of separa- tion. Ibid. (E) Actions aitd Suits. (o) Actions, when maintainable alone or jointly, A declaration in case by a husband and wife stated that the defendant, who was the maker and seller of certain lamps called Holliday's lamps, sold to the husband one of these lamps, to be used by his wife and himself in his shop, and fraudulently warranted that it was reasonably fit for that piu'pose ; that the wife, confiding in that warrantry, attempted to use it, but that in consequence of the insufficient mate- rials with which it was constructed it exploded and burnt her. At the trial, the jury found that the accident had been caused by the defective nature of the lamp ; but that the defendant was ignorant of this unsoundness, and had sold the article in good faith ; — Held, that the fraud on the part of the de- fendant having been negatived, the action was not maintainable by the wife, who was not a party to the contract. Longmeid v. Holliday, 20 Law J. Eep. (if.s.) Exch. 430; -6 Exch. Eep. 761. A married woman who has bought railway stock with her own earnings, and had it transferred to her- self, may maintain an action against the railway company for the dividends, subject to a plea in abatement. DaUon v. the Midland Covmties Sail. Co., 22 Law J. Eep. (n.s.) C.P. 177 ; 13 Com. B. Rep. 474. By settlement made on the marriage of the plain- tiff and his wife, leaseholds were assigned, upon trust, to allow the wife to receive the rents and profits during her life, to her separate use. The wife, after marriage, received the rents from the trustee, and lent a portion of them to the defendant : Held, that the plaintiff might, after his wife's death, recover this money jwre ma/riti from the defendant in an action for money lent. Bird v. Pegrum, 22 Law J. Eep. (N.S.) C.P. 166 ; 13 Com. B. Eep. 639. The indenture provided that the wife's receipt alone should be " a valid discharge " for the said rents. Qmere — whether this meant a discharge to the tenants only or to the trustee also. Ibid. (6) Suits. The plaintiff, being the wife of the principal defen- dant, filed a bill against her husband, alleging that by their marriage settlement a particular estate was charged with a jointure on her behalf; that she after- wards signed a deed exonerating that estate from the jointure, upon the understanding that it was to be charged on another estate, and that during the pre- paration of that deed the solicitor of the husband acted also on her behalf, and that she had no other legal advice. The decree prayed was that the second estate might be charged with the jointure. The husband, by his answer, stated that the transaction relative to the release of the jointure was conducted by the solicitor solely on his behalf, and the solicitor BARON AND FEME; (E) Actions akd Suits. 05 stated that the plaintiff had no separate solicitor or counsel, and acted only under the opinion of the husband's legal advisers: — Held, (reversing the deci- sion of the Court below) that the solicitor was to be deemed the solicitor of the wife as well as of the husband; and that the wife had a right to the inspec- tion of all documents which came into the solicitor's possession in relation to and during that employment. Warde v. Warde, 21 Law J. Rep. (n.s.) Chanc. 90; 3 Mac. & G. 365 : reversing 20 Law J. Rep. (n.S.) Chanc. 36; 1 Sim. N.S. 18. Semble — Where husband and wife have distinct interests, and the wife is induced, in dealing with those interests, to act under the advice of a solicitor em- ployed and paid by the husband, the solicitor will be deemed to act as the solicitor both of the husband and wife. Ibid. A deed executed by a husband, pending proceed- ings in the ecclesiastical court, for the purpose of preventing the suit, if successful, from affecting his property, declared void, and all arrears of alimony directed to be paid ; but as to future payments, qtujere. Blenkinaopp v. Blenki/nsopp, 21 Law J. Rep. (N.S.) Chanc. 401'; 1 De Gex, M. & G. 495 : affirming 19 Law J. Rep. (n.S.) Chanc. 425; 12 Beav. 568. A testator, by his will, devised his real estate for the benefit of the children of his heiress-at-law, a married woman. A bill was filed, on behalf of the children, to have the trusts of the will executed. The heiress-at-Iaw entered a cwseat against probate, but did not proceed. She and her husband, who were defendants to the suit, admitted, in their joint answer, the due execution of the will. She and her husband, in her right as heiress, brought an action of ejectment against the trustees of the will, but afterwards dis- continued it, and were ordered to pay the costs. At the hearing of the cause in Chancery, an issue devir savit vel non was, on her application, granted, her adult children being directed to be plaintiffs. The record was withdrawn by them just before the time of the trial, and the trustees were then directed to be plaintiffs. The heiress and her husband appealed from this order unsuccessfully, their petition being dismissed. Just before the time for the trial of the issue, the heiress-at-law and her husband petitioned, allegingthat the testator wasunduly influenced against them in making his will, and that they had not tried the issue at the earnest solicitation of their adult children, and praying that the orders relating to the proceeding to the trial of the issue might be dis- charged, the petitioners undertaking to admit the validity of the will, and submitting to the execution of the trusts of the same, and praying that all the costs of and relating to such orders might be costs in the cause. The cause and this petition came on for hearing together, and on the 14th of February 1833 a decree establishing the will was made, and on the petition an order was made, " the heiress-at-law, by her counsel, consenting," in conformity with the prayer of the petition. Further proceedings were afterwards taken by her and her husband, both in the ecclesiastical court and at common law, which failed, and she was enjoined by this Court from taking any further proceedings for the recovery of the real estate. On the 13th of January 1861 she obtained leave to present a petition of rehearing of the decree or order of the 14th of February 1833, and on the 29th of January she obtained an order for setting it down. On the 29th of May the order of the 13th of January for a rehearing was discharged, on the ground of the acquiescence of the heiress in the former proceedings, and the petition was ordered to be taken off the file. From this last order she appealedt^Held, that the heiress-at-law being a married woman could not con- tract not to have the cause reheard, nor could she by her conduct be in any way'bound, nor could her consent inserted in the order of the 14th of February 1833 in any way prejudice her right. Twmer v. Turner, 21 Law J. Rep. (n.s.) Chanc. 422; 2 De Gex, M. & G. 28; 20 Law J. Rep. (n.S.) Chanc. 112. Held, also, that the petition of rehearing must be restored to tlie file. Ibid. Held, further (on the rehearing), that the decree Of the 14th of February 1833 must be varied by striking out the consent of the heiress-at-law, and adding words reserving to her, if she should survive her husband, and to her heirs if she should die in his Ufetime, the right to dispute the will; but Held, also, that although the decree was inoperative against the heiress-at-law to bind her inheritance, it was conclusive as against the husband as tenant by the curtesy to the extent of his estate; the decree being, in fact, a bargain that all his and his wife's costs, to which he was alone liable, should be costs in the cause, he agreeing that they would no longer dispute the will. Ibid. The trustee of a fund, to which a young lady was entitled in remainder after the death of her mother, at the request of a needy father advanced sums of money amounting to 4S01. to enable the father to educate her. Shortly after she came of age, being engaged to be married, she, by deed prepared by the father's solicitor, reciting a contract for sale at the price of 2501., for which a receipt was indorsed, assigned the fund absolutely to the trustee, and married on the following day. The trustee was pre- sent at the wedding, but the husband was informed neither of the existence of the fund nor of the deed. On a bill by the husband and wife, — Held, that the deed falsely representing the transaction to be an actual sale must be set aside. LeweUm v. Cohbold, 1 Sm. & G. 376. (c) Pleading mid Evidence. [Declaration by husband and wife on an account stated, see Johnson v. Lacas, title AoconHT stated (B).] A declaration against husband and wife stated that the wife dwn. sola, together with J A, made their joint and several promissory note payable to the plaintiff, and the wife d/um sola promised to pay the same to the plaintiff. The declaration was (after issue) amended by adding, that the husband after the marriage, in consideration of the premises, promised to pay the plaintiff the said note. The defendants pleaded the Statute of Limitations. The evidence was that the note was made in 1837, and that inter- est was paid on it regularly until 1843, when the defendants married. On the" 10th of August 1844, a year's interest was paid by the female defendant, but without her husband's privity. The action was commenced on the 2nd of August 1850: — Held, that, under these circumstances, no promise was proved within six years, as none could have been made by the wife dum tola within that period, and 96 BARON AND FEME— BASTARDY. as the payment made by the wife within six years was without her husband's privity, no promise by him could be inferred. Nete v. Hollands, 21 Law J. Rep. (N.s.) a.B. 289; 18 Q.B. Rep. 262. Semtle — that the declaration as amended was bad in arrest of judgment. Ibid. A husband cannot make his wife a defendant to a suit instituted by him to recover real estate pur- chased by her in the name of a third party, and paid for with monies which she had accumulated unknown to her husband; and, notwithstanding an allegation that she claimed the property as separate estate, a demurrer by her to the bill was allowed. Farl v. Ferris, 24 Law J. Eep. (n.s.) Chanc. 20 ; 19 Beav. 67. Suit by a feme covert in respect of her separate estatOfin whichher husband was named asa defendant. The plaintiff proved at the hearing that her husband was out of the jurisdiction : — Held, that the suit was properly constituted. Monday v. Waghorn, 21 Law J. Rep. (h.s.) Chanc. 353. A married woman instituted a suit against her husband in respect of property come to his hands, which she claimed as belonging to her, and tendered her evidence in the suit; — Held, that her evidence was not admissible. Alcoch v. Alcock, 21 Law J. Eep. (n.s.) Chanc. 856; 5 De Gex & Sra. 671. In a suit relating to the property of a wife, the evidence of her husband is not admissible against her. M'Neillie v. Acton, 22 Law J. Eep. (h.s.) Chanc. 820. BARRISTER. [See Practice.] Right to appear. The Vice Chancellor and heads of the colleges in the University of Cambridge have authority to make a decree that every tradesman with whom any person in statu pupillari should contract a debt exceeding 5L should be required to send notice thereof at the end of every quarter to the college tutor of the person so indebted, on pain of being punished by discommuning or otherwise as to the Vice Chancellor and heads of colleges should seem fit. Where a tradesman resident in Cambridge who has violated this decree is summoned to appear before the Vice Chancellor and heads of houses to answer the complaint, he is not entitled to appear by counsel or attorney as upon a judicial proceeding. Ex parte Death, 21 Law J. Rep. (n.s.) Q,.B. 337; 18 Q.B. Rep. 647. Upon a conviction under the Copyright of Designs Act, 6 & 7 Vict. e. 65, the party convicted making default was, upon complaint made, summoned to shew cause why he had not paid the amount of the penalties and costs under such conviction, and why he should not be committed in default of payment, and be further dealt with according to law. There- upon his counsel and attorney appeared to shew cause, but the sitting magistrate refused to hear the case in the absence of the party himself, and granted a warrant reciting the summons and the neglect of the party to appear, and commanding his apprehen- sion to answer to the complaint made, and to be further dealt with according to law, under which the party was apprehended and imprisoned : — Held (the conviction being afterwards quashed), that the magistrate was liable to an action of trespass for false imprisonment: first, on the ground that the above section did not apply to default on non-appearance to a summons after conviction ; and, secondly, assuming the section to apply to a summons after conviction, that there had been no default in appearance, the appearance by counsel and attorney being suflicient. Fessell v. Wilson, 22 Law J. Rep. (n.s.)M.C. 94; lE.&B. 489. The 2nd section of the act to amend the law of evidence, 14 & 15 Vict. c. 99, does not abridge the former right of a party to a suit to act as his own advocate; and a Judge at Nisi Prius has no autho- rity to prevent a party to a suit addressing the jury as his ovm advocate, and afterwards giving evidence as a witness in support of his own case : but such a course of proceeding is most objectionable. Cobbett T. Hudson, 22 Law J. Rep. (h.s.) Q.B. 11; 1 E. & B. IL BASTARDY. [Agreement to support a Bastard, see CoNTKACT.] (A) Proof of Illegitimacy. (B) Order of Affiliation. (a) Jurisdiction to maJee the Order. (1) On Soldiers, (2) On Application of Married Woman. (3) Service of Summons. (6) Form and Sufficiency of the Order. (c) Enforcing the Order. (C) Notice op Appeal. (D) Notice of Recognizance. (A) Proof of Illeoitimaot. Where a husband after a long absence did not rejoin his wife till the 29 th of November 1849, and she nevertheless produced to him a full-grown child on the 18th of May 1850,— Held, that he could not have been the father,- and that she was guilty of adultery. Bill passed with a clause bas- tardizing the child. Heaihcote's Divorce Bill, 1 Macq. H.L. Cas. 277. Strict proof of non-access is required in such cases. Ibid. The log and muster-books of a ship, returned every quarter to the Admiralty, mentioned the name of an ofiicer as with the ship, at a certivin placp for a given period of time : — Held, that this was not sufficient evidence of his having actually been there for the time specified. Ibid. Where a wife after a long absence did not rejoin her husband till the 22nd of December 1847, and she nevertheless produced to him a full-grown child on the 5th of July 1848; the evidence of adultery (independently of non-access) being com- plete, — Bill passed, but a clause proposing to bas- tardize the child rejected. Ibid. By the law of Scotland, legitimation per suisequ£ns matrimonium operates only from the time of the marriage, not from the time of the birth. Shedden V. Patrick, 1 Macq. H.L. Cas. 635. Semble — That the ancient fiction which supposed an interchange of matrimonial consent at the mo- ment of conception, is not sanctioned by the law of Scotland. Ibid. BASTARDY; (B) Obder of Afpiliation. 97 Semhh — That the doctrine of mid-impedimenta is also without foundation in the law of Scotland. Ibid. Semlle — That by the law of Scotland, if the mother of a bastard, instead of marrying the father of the bastard, marries another man who dies, — she can afterwards, by marrying the father of the bastard, render the bastard legitimate from the date of her second marriage, but not from the date of the bas- tard's birth. Ibid. The customary law of the Isle of Man respecting legitimation by subsequent marriage of the parents, was proclaimed at a Tynwald, held on the 13th of July, 1577, aa follows: — " If a man get a maid or young woman with child before marriage, and within a year or two after doth marry her, if she was never slandered or defamed with any other before, that child begotten before marriage shall have his father's corbe and his farme, according to the custom of this Isle." This custom was (among other laws) pro- pounded for the resolution of all doubts therein, to the two Deemsters and Twenty-four Keys of the Island, on the 24th of June, 1694, and was by them confirmed and answered as follows : — " If a man get a maid or young woman with child, and then within a year or two after doth marry her, we judge them to be legitimate by our customary laws." Upon a construction of this custom, held, affirming the judg- ment of the Court of Chancery of the Isle of Man, — First, that such custom was not a rule of descent to lands of inheritance descending from father to son, but embraced the case of a female entitled as purchaser under the trusts of a will ; second, that the custom applied to a case where more than one child had been born before marriage ; and, third, that a child was legitimate, although more than two years had elapsed between the time the woman was gotten with child and the marriage of the parents. Qwane v. Qaane, 8 Moore, P.C.C. 63. The child of a married woman held to be illegiti- mate on proof of non-access of the husband, and of conduct and admissions of the wife and her para- mour, ife Sinclay, 17 Beav. 523. On the trial of an issue as to the legitimacy of a child born of a married woman, the evidence of the husband is not admissible for the purpose of proving access, or for the purpose of proving any collateral fact which would tend to shew that he had had op- portunities of access. Wright v. Soldgate, 3 Car. & K. 158. Nor in such a case is evidence of expressions of feeling by the wife towards the husband admissible. Ibid. If the jury are satisfied that intercourse took place between the husband and wife at such times as in the course of nature to account for the birth of the child, such child must be taken to be the hus- band's child, although during the same period other men may have had intercourse with the mother. Ibid. (B) Okdbb of Affiliation. - (a) Jurisdiction to make the Order. (1) On Soldiers. If an order of Justices be made commanding a soldier in the Queen's service to pay a certain sum weekly for the maintenance of a bastard child, the soldier may be indicted for refusing to obey the Digest, 1850—1856. order, and is not protected from punishment by sec- tion 52. of the Mutiny Act, 12 & 13 Vict. c. 10 ; as such disobedience is a criminal matter, and cri- minal matters are expressly excepted from the ope- ration of that section. Regina v. FerraH, 20 Law J. Rep. (n.s.) M.C. 39; 2 Den. C.C.R. 51. [But see 13 & 14 Vict. c. 5. s. 52.] (2) On Application of Married Woman. Under the 7 & 8 Vict. c. 101. s. 3. Justices have jurisdiction to make an order on the putative father of a bastard child, although the mother be a married woman living apart from her husband. Ex parte Grimes, 22 Law J. Rep. (n.s.) M.C. 153; 2 E. &B. 546. The liability of the putative father under such an order does not cease upon the return of the woman's husband and his cohabitation with her. Ibid. Justices have a discretion aa to enforcing an order of affiliation by distress ; but where they declined to issue their warrant, on the ground that the putative father was discharged from the order by reason of the husband of the mother having returned and co- habited with her, this Court made absolute a rule, under the 11 & 12 Vict. t. 44. n. 6, ordering the Justices to issue the distress warrant. Ibid, (.3) Service of Summons. A few days after D had left his father's house, his last place of abode, and sailed for America, a sum- mons calling upon him to answer the charge of being the putative father of a bastard, was left for him at his father's house. An order of affiliation, which recited that the summons had been duly served on D, was made against him in his absence from the country. On an application for a certiorari to bring up and quash the order made by D on his return from America, he swore that he did not leave home with any intention of avoiding service of the sum- mons, but he did not deny that he was the father of the child. The Court refused the certiorari. Regina V. Dams, 22 Law J. Rep. (n.s.) M.C. 143; 1 Bail C.C. 191. (5) Form and Sufficiency of the Order. The words " having also heard all the evidence tendered by the said " defendant, in the forms of ordei's of bastardy given by 8 & 9 Vict. c. 1 0, need only be inserted where any evidence has been given on behalf of the defendant. If none has been in fact tendered by him, these words are properly struck out. Regina ■v.Pearcy, 21 Law J. Rep. (n.s.) M.C. 129; 17 Q.B. Rep. 902. An order of maintenance ordered a person as putative father to pay a weekly sum for the main- tenance of a bastard child from the birth of the chUd. Aa the application for the order was not made until more than two months after the birth, the order was clearly bad as to the period between the date of the birth and the time of applying for the order. Notice of abandonment of all claim under the order for payment anterior to the date of the order had been served on the putative father : — Held, that the order was valid, and might be enforced against the putative father in respect of the weekly payments which became due after the date of the application to the magistrates. Regina v. Green, 20 Law J. Rep. (n.s.) M.C. 168; 2 L. M. & P. P.C. 130. 98 BASTARDY— BILLS AND NOTES. (c) Enforcing the Order. [See ante, (6).] The jurisdiction given to a single Justice of the Peace by 7 & 8 Vict. c. 101. s. 3, at any time after the expiration of one month from the making of an order for the maintenance of a bastard child, to grant a warrant against the putative father, for the purpose of enforcing payment under the order, is not sus- pended by an appeal to the Quarter Sessions by the putative father against the order, and the confirma- tion of the order by the Sessions subject to a special case. Where, therefore, an order in bastardy had been confirmed upon appeal, subject to a special case, and two days after the hearing of the appeal a Jus- tice of the Peace granted his warrant, under sect. 3. of 7 & 8 Vict. c. 101, to bring the putative father before two Justices for the purpose of enforcing the order,_Held, that the 1 1 & 12 Vict. c. 44. s. 2, pro- tected the Justice from liability to an action of tres- pass for the arrest under the warrant. Kendall v. Wilkinson, 24 LawJ.Rep.(N.s.) M.C. 89; 4 E. & B. 680. (C) Notice of Appeal. If a party against whom an order of affiliation has been made applies to a Justice, stating that he has given notice of appeal, and requires the Justice to take his recognizance to appear and try the appeal, and to pay costs if awarded, the Justice has no juris- diction to decide whether the notice of appeal be sufficient, for that is a question for the Sessions on hearing the appeal. In re Carter, 24 Law J. Eep. (H.S.) M.C. 72. (D) Notice of Recognizance. Justices at petty sessions, after verbally adjudgingB to be the putative father of twin bastard children, and ordering him to pay Is. a week for the maintenance of each, drew up a separate order in respect of each child. B gave notice of appeal, and entered into a separate recognizance to prosecute iu each case. One notice of recognizance only was served on the mother by the attorney of B, and it stated, " We hereby give you notice that B has entered into a recognizance to try an appeal," &c. " against an order of affiliation, made on,"&c. "whereby B was adjudged to be the father of two bastard children of which you, J T, had then lately been delivered." It was objected that the notice was insufficient, as there wag no such recognizance as that stated in the notice, and no such order as an order adjudging B to be the father of two children : — Held, that the notice of recognizance was sufficient, as, putting a reasonable construction upon it, it gave the mother sufficient information that B had entered into recognizances to appeal in respect of each child. Jtegina v. the Secorder of Leeds, 21 Law J. Rep. (n.s.) M.C. 171; 1 BaUC.C. SO. BENEFIT BUILDING SOCIETIES. [See Friendly and Benefit Societies.] BEER AND BEERHOUSE. [See Ale and Bbebbouse.] BETTING HOUSES. [See Gamikq.] BIGAMY. In order to prove that a marriage in Scotland is valid according to the law of Scotland, a witness con- versant with Scotch law as to marriage ought to be called. Regina v. Povey, 22 Law J. Rep. (n.S.) M.C. 19; 1 Dears. C.C.R. 32. BILL OF EXCEPTIONS. [See Practice.] BILLS OF EXCHANGE AND PROMISSORY NOTES. [See Company — Usury.] (A) Form and Operation. (a) Acknowledgment only. (6) CertairUy as to when and to whom pay- able. (c) Imperfect Instrument — mo Drawer, id) Joint or Several, (e) Bin or Note. (B) Stamp. (a) On re-issiie. (b) foreign or Inlcmd. (C) Alteration. (a) When material. (6) Operating as a Discharge of Liability. (D) Acceptance. (a) Wliat amownts to, lb) In blank. (c) Payable at Bamker's. (d) Revocation or CamceUation [See (G) Discharge from Liability on.] (e) Evidence of. (E) Transfer. (a) In general. !b) Indorsement in blank, c) Restricted Indorsement. (d) Without Indorsement. (e) Delivery for Special Pwrpose. (f) After Maturity. (F) Accommodation Bills. (G) Discharge from Liability on. (a) By Payment. (b) By cancelling Acceptance. (c) By giving Time. (H) Retiring Bills. (1) Consideration. (J) Payment. (K) Protest fob Non-Payment. (L) Notice of Dishonour. (a) Form and Requisites. (b) By Party having no Knowledge of the Dishonour. BILLS AND NOTES; (A) Form and Operation. 99 (c) At whai Place, (a) Withm what Time. (e) Waiver. (M) Actions and Suits. (o) Whm Bill or Note lost or destroyed, (h) Hate of Interest recoverable. (c) Parties. ' (d) Staying Proceedings. (e) Pleadings. (/) Evidence to vary Terms of Bill. (N) Sale of Bills (0) Cheques and Letters of Credit. (A) Form and Operation. (a) AcJcnowledgm£nt only. A document in the following form — " Borrowed, thia day,of J H 100?. for one or two months; cheque, 1001. on the Naval Bank. (Signed) J D," held to be a mere acknowledgment, and not to require a stamp either as an agreement or a promissory note. Eyne v. Deiedney, 21 Law J. Rep. (n.s.) Q.B. 278. The plaintiff advanced money to the defendant on the collateral security of certain debentures in the following form, varying only in the number — "No. 5262. On the ISth of July 18S0. The Governor and Company of Copper Miners in Eng- land promise to pay to ff. J. Enthoven or order, at &c., the sum of 5002., and further to pay to the holder of the warrants annexed on presentment thereof, aa they ahall fall due, interest on the said sum of 5001 at the rate of hi. per cent, per annum." To each debenture were alHxed several warrants which, differing only in date, ran thus — " The Go- vernor and Company of Copper Miners in England. Warrant for 12/. 10s. for one half-year's interest on debenture No. 5252, due the ISth of July 1849. W I, Secretary." There waa a separate warrant annexed for each half-yearly payment of interest that would fall due on the debenture. When pay- ment of interest was demanded the warrant for the instalment then due was detached and presented separately to the company's bankers : — Held, that the separated warrant was not a promiaaory note and did not require any stamp. Enthoven v. Boyle (in error), 21 Law J. Eep. (N.S.) C.P. 100 ; 13 Com. B. Eep. 373. (5) Oertaimiy as to when and to whom payable. Declaration by the plaintiff as payee, against the defendant as drawer of a bill of exchange, directed to C S, and requesting him niaiety days after sight or when realized to pay to the plaintiff or order the sum of l,256t 10*. id. sterling, value received : — Held, in arrest of judgment, tiiat the time of pay- ment waa altogether uncertain, and therefore that the alleged biU waa not a good bill of exchange, according to the cuatom of merchants. Alexander V. Thomas, 20 Law J. Rep. (w.s.) Q.B. 207 ; 16 Q.B. Rep. 333. Semhle — also, that it would have been equally in- valid supposing the proper construction to be that it was payable at all events at the expiration of the stated period of ninety days. Ibid. The following instrument was sued upon as a promissory note by the plaintiff, who, at the time of the making of it, and from thence until the com- mencement of the action, was the secretary of the Indian Laudable and Mutual Assurance Society : — " Nine months alter date I promiae to pay to the secretary for the time being of the Indian Laudable and Mutual Assurance Society, or order, company's rupees 20,000, with interest at 6/. per cent, per an- num, and I hereby depoait in his hands twenty-two Union Bank shares, as particularized at foot, by way of pledge or security for the due payment of the said sum of company's rupees 20,000, and in default thereof hereby authorize the said secretary for the time being forthwith, either by private or public sale, absolutely to diapoae of the said bank shares so deposited with him, and out of the proceeds to re- imburse himself the said loan of company's rupees 20,000, he rendering to me any surplus, and I hereby promise to make good whatever may be wanting over and above the proceeds of such sale to make up the full amount of such loan and interest " :^ Held, that the promise to pay contained in the instru- ment was a floating contingent promise, the perform- ance of which was to be made to a person to be ascertained ex post facto, na,me\y, the secretary when the instrument became due, and therefore that the instrument could not be sued upon as a promissory note. Storm v. Slirlimg, 23 Law J. Rep. (n.s.) Q.B. 298 ; 3 E. & B. 832. Quare — whether the additional promise to pay the deficiency in the event of a aale of the bank shares deposited as a security proving insulEcient, rendered the instrument invalid as a promiaaory note. Ibid. (c) Imperfect Instnmient — no Drawer. A parcel delivered to a railway company for car- riage contained 9/. 10s. in cash, and an instrument, bearing a bill of exchange stamp, in the following form : — " Three months after date pay to me the sum of \\l. 10s., value received. To Mr. Crutten- den, &c.," and written acrosa it waa an acceptance by Cruttenden. The parcel waa addressed to G, a creditor of Cruttenden, and the intention waa that G should put his name to the instrument as drawer. In the course of transmission the parcel waa opened, and the instrument and the money it contained were abstracted : — Held, in an action against the company for the loss, that the instrument was a ''writing," and not a bill, note, or security for money, within the meaning of the Carriers Act, 1 1 Geo. 4. & 1 Will. 4. c. 68. s, 1, but that it could not be con- sidered of value, so aa under that section to exempt the company from their common law liability as carriers. Stoesaiger v. the Souih-Eastem Pail. Co., 23 Law J. Rep. (n.s.) Q.B. 293 ; 3 E. & B. 549. Semile — by the law merchant an instrument is not a bill of exchange unless it has a drawer and drawee. Peto V. Meynolds, 23 Law J. Rep. (n.s.) Exch. 98 ; 9 Exch. Eep. 410. " Cameroons, September 3, 1862. Exchange for 200/. On sight of this, my third exchange, the first and second of the same tenour and date being un- paid, please to pay to S. M. Peto, Esq., or order, 200/. sterling, for value received, and place the same, by letter of advice, to the account of Alfred Righton."' Acrosa this document, Righton, the drawer, had written the words, "Accepted, S. Reynolds, Esq., Shire Lane, Bedminster, Bristol " : — Held, by Parke, B., Alderson, B. and Martin, B., that if the de- 100 BILLS AND NOTES; (A) Foem and Opebation. fendant, by acknowledging himself to be liable, ratified the act and authority of Righton, the docu- ment might be treated as a promissory note. Ibid. Semble — that the document had not an address upon it. Ibid. (d) Joint or Several. The defendant agreed to join his brother in making a promissory note on the representation that one R would also join, and that he, the defendant, should not be responsible unless R also joined. The de- fendant signed the note jointly with his brother ; R refused to sign, and the brother, without the defen- dant's knowledge, delivered the note to the plaintiff for value: — Held, that the defendant was not liable on the note. Awde v. Dixon, 20 Law J. Rep. (n.s.) Exch. 295 ; 6 Exch. Rep. 869. An action was brought upon an instrument, in the following form, dated the 1st of August 1846: — " We, directors of the Royal Bank of Australia, for ourselves and the other shareholders of the said company jointly and severally promise to pay to G W or bearer, on the 1st of August 1861, 2002. for value received on account of the company," signed by three directors. The defendants were two direc- tors, one of whom had signed the instrument in question, and four of the shareholders of the com- pany, which was an unregistered joint-stock com- pany : — Held, that, assuming the directors to have authority to bind the company by such an instru- ment, the whole of the defendants were jointly liable upon it, notwithstanding that it purported also to bind them severally, which it would not do, and not- withstanding that the note was not given in the name of the partnership firm. Maclae v. SuHier- lamd, 23 Law J. Rep. (m.s.) Q.B. 229 ; 3 E. & B. ]. Annexed to this note were coupons for the pay- ment of half a year's interest on the amount secured by the note in each successive half year subsequent to the date of the note until the period there speci- fied for payment : — Held, that these coupons could not affect the legality of the note. Ibid. (c) Bill or Note. An instrument was drawn in the following form, " Two months after date I promise to pay to A B or order 99i. 16s. H. Ohver." At the foot it was addressed to " J. E. Oliver," and across it was written, " Accepted payable S & A Bankers, Lon- don. E. Oliver": — Held, that in an action by the payee against the drawer it might be treated and declared upon as a bill of exchange. Lloyd v. Oliver, 21 Law J. Rep. (n.s.) Q.B. 307; 18 Q-B. Rep. 471. (B) Stamp. [See Statutes 16 & 17 Vict. c. 59. a. 19 ; 17 & 18 Vict. c. 83. s. 1.] (a) On He-issue. In an action by the indorsee against the acceptor of a bill of exchange, the defendant pleaded that he accepted for the accommodation of the drawer, that the drawer negotiated the bill for his own use, and paid it when it became due ; that it was afterwards delivered by the holder to the drawer, who then, without the consent of the defendant, indorsed it to the plaintiff, without having it re-stamped. The bin, on being produced at the trial, had the name of the drawer on the back, and a memorandum of the date when it was due on the face of it ; and it ap- peared that the drawer delivered it to the plaintiff after that date : — Held, that this was no evidence to go to the jury in support of the allegations in the plea, that the bill was negotiated by the drawer, and paid at maturity, — commenting on Lazarus v. Cowie. Jewell V. Parr, 22 Law J. Rep. (n.s.) C.P. 253 ; 13 Com. B. Rep. 909. Quoere — whether the plea was good. Ibid. (5) Foreign or Inland. Where b bill of exchange drawn in blank in a foreign country was sent by the drawer to his agent in London to be accepted by a customer of the drawer as a mode of payment for goods, and the agent, without any authority from the drawer, filled it up and induced the defendant, who was not a cus- tomer of the drawer, to accept it, and afterwards, in fraud of the drawer, indorsed it to the plaintiffe for value, — Held, that the bill being drawn partly abroad and partly in this country did not require a stamp. BarTcer v. Sterne, 23 Law J. Rep. (n.s.) Exch. 201 ; 9 Exch. Rep. 684. (C) Altbramon. (a) WTien material. A note was made payable five months after date with lawful interest, and afterwards and before the note became due, the words " interest to be paid at 61. per cent, per annum " were written in the corner of it without the consent of the maker ; — Held, in an action by the payee against the maker, that there was a material alteration of the note, and that the plaintiff was not entitled to recover in the action. Warrington v. Early, 23 Law J. Rep. (n.s.) Q.B. 47 ; 2 E. & B. 763. (6) Operating as a DiscJia/rge of Liability. Where a bill of exchange was, ivithout the privity of the acceptor, altered by inserting the words "payable at A," and afterwards indorsed to the plaintiff for value, who took it bond fide and with- out knowledge of the alteration, it was held that this was a material alteration which discharged the ac- ceptor. Burchfield v. Moore, 23 Law J. Rep. (n.s.) aB. 261; 3E.&B. 683. The plaintiff's remedy in such a case is confined to a right to recover the consideration for the bill as between himself and his immediate indorser ; and a similar remedy may be resorted to between all prior parties to the bill until the party is reached through whose fraud or laches the alteration was made. Ibid. The maker of a promissory note is discharged from his liability by any alteration of the note, wherever the altered instrument, if genuine, would operate differently from the original instrument, whether the alteration be or be not to his prejudice. Gardner v. Walsh, 24 Law J. Rep. (N.a) Q.B. 285. A being indebted to the plaintiffs, it was arranged between them that B and the defendant should join as her sureties in a promissory note for the amount payable to the plaintiffs. The defendant, in igno- rance of the arrangement that B should sign the note, signed a joint and several note for the amount together with A, and as her surety. The note so signed was then handed to the plaintiffs, who pro- cured it to be signed by B, without the defendant's BILLS AND NOTES; (D) Acceptance. 101 consent or knowledge: — Held, that, assuming the note to have been completely issued when it was signed by B, this was an alteration of the note and of the defendant's liability in a material point, and that the defendant was consequently discharged ; overruling Cotton v. Simpson. Ibid. (D) AOOEPTANOE. (a) What amownts to, A person who accepts a bill addressed to himself and others is individually liable. Owen v. Van Uster, 20 Law J. Rep. (u.s.) C.P. 61; 10 Com. B. Eep. 318. Where a bill was addressed to a mining company and accepted by the defendant as manager, and it was shewn that he and three others had agreed to form the company, and that the mine had been worked on the footing of that agreement, — Held, that the defendant was individually liable on the bill as a member of the company. The case of Vice V. Lady Anson, 7 B. & C. 409; 6 Law J. Eep. K.B. 24, commented upon. Ibid. A bill of exchange drawn upon a completely registered joint-stock company by its corporate name, was accepted as follows : — " Accepted J B and E N, directors of the C Company, appointed to accept this bill." J B and E N were, in fact, directors of the company. The corporate seal, having the name of the company inscribed, was also affixed to the bill, and it was countersigned by the secretary : — Held, that the bill of exchange was sufficiently expressed to be accepted by J B and E N on behalf of the company within 7 & 8 Vict. c. 110. s. 45. Salford v. Cameron's Coaibrook Steam Coal a/nd Swansea and Louglior Rail. Co., 20 Law J. Eep. (n.s.) Q.B. 160; 16 Q.B. Rep. 442. A bill of exchange, drawn on a completely regis- tered joint-stock company by its corporate name, was accepted by two of the directors of the company as follows: — "Accepted, J B and E N, directors of the C Company, appointed by resolution to accept this bill." The bill was sealed with the corporate seal, having the corporate name of the company circumscribed, and was countersigned by the secre- tary : — Held, in an action upon the bill against the company, that the bill sufficiently expressed upon the face of it that it was accepted on behalf of the company within the 45th section of the 7 & 8 Vict. c. 110, and that the company were liable upon the bill. Ed/iBojrds v. Cameron's OoalhrooTc Steam Coal and Swa/nsea and Loughor Bail, Co., 6 Exch. Rep. 269. A bill of exchange, directed to the defendant thus: " To J D, Purser, West Downs Mining Company," was accepted by him in these terms : " J D, accepted per proc. West Downs Mining Company." J D was a member of the company, but was not autho- rized to accept bills on their behalf: — Held, that he was personally liable. NicholU v. Diamond, 23 Law J. Eep. (n.s.) Exch. 1; 9 Exch. Eep. 154. (5) In hlanh. The defendant, being in execution for a debt, signed a blank promissory note in July 1846, and delivered it to the attorney for the execution credi- tor,and was thereupon released. In 1851 he became bankrupt, and obtained his certificate on the 12th of May. On the 20th of October 1852 the note was filled up and made payable at one month after date, and indorsed to the plaintiff. To an action upon the note, the defendant pleaded that he did not make the note, and his certificate under the bank- ruptcy. The jury found that the note had been filled up within a reasonable time : — Held, that the defendant was liable, and that the certificate aflxirded no defence. Temple v. PiMm, 22 Law J. Eep. (n.s.) Exch. 151; 8 Exch. Rep. 389. The defendant, in 1840, gave S, for value, his acceptance in blank, on a 5s. stamp. S, in 1852, and, as the jury found, not within a reasonable time, filled in his own name as drawer, for 200Z. at five months. The defendant, being sued on the bill by an innocent indorsee for value, pleaded, first, that he did not accept; secondly, the Statute of Limitations : — Held, that the plaintiff was entitled to the verdict on both issues, notwithstanding the finding of the jury. Montague v. Perhins, 22 Law J. Eep. (n.s.) C.P. 187. In a suit for the administration of the estate of a deceased person a claim was made, by the holder of a bill of exchange, to be admitted as a creditor, but it being proved that the holder, who was indorsee of the bill, and was aware of the fact of the acceptance being in blank, it was held he must be taken to have had as full knowledge of the circumstances of the origin of the bill as he might have acquired if he had made proper inquiry; and therefore, affirming the certificate of the chief clerk of one of the Vice Chancellors and the decision of his Honour refusing to disturb the same, the claim was disallowed. Hatch V. Searles, 24 Law J. Rep. (n.s.) Chanc. 22; 2 Sm. & G. 147. (c) Payable at Ba/iiker's. If a bill of exchange, made payable to order, be accepted payable at the acceptor's bankers, and the indorsement of the payee be forged, and the bankers pay the bill to a party presenting it for payment, they are guilty of no breach of duty towards the ac- ceptor in making the payment ; but they are not at liberty to charge the amount of the bill in account against him, although the payee be a stranger to them, and they have no immediate means of ascer- taining the genuineness of his handwriting, and have dealt with the bill in the ordinary course of busines?. Rdbwrts v. Tucker (in error), 20 Law J. Rep. (n.s.) a-B. 270; .16 Q.B. Rep. S60. Semble — that bankers have a reasonable time to inquire into the genuineness of the indorsements of strangers necessary to make out the title to the bill. Ibid. {d) Revocation or Cancellation. [See^os*, (G) Discharge from Liability.] (e) Evidence of. To an action by an indorsee against the acceptor of a bill of exchange at four months, dated the 9th of November, 1850, the defendant pleaded that he was an infant when he accepted. It was proved that the acceptance, which was not dated, was written by the defendant, that all the parties to the bill resided in London, and that the defendant came of age on the 11th of March, 1851 :_HeId, that the jury might on this evidence find for the defendant, as the proper inference from it was, that the bill was ao- 102 BILLS AND NOTES; (E) Teanspee. cepted shortly after it was drawn. Roberta v. Bethell, 22 Law J. Rep. (n.s.) C.P. 69; 12 Com. B. Rep. 778. Where, in an action against the acceptor of a bill of exchange, plea, non acceptavit, the defendant's attorney signed an admission that the acceptance was in the handwriting of the defendant, without adding the usual clause, " saving all just exceptions to the admissibility of evidence," — Held, that the jury were warranted in finding for the plaintiff, not- withstanding the non-production of the bill. Chap- lin V. Levy, 23 Law J. Rep. (tf.S.) Exch. 117; 9 Exch. Rep. 531. (E) Transfer. [See^os*, (N) Sale of Bills.] (a) In general. The rule laid down in the cases of Gill v. Ctibitt (3 B. & C. 466) and Down v. HaMng (4 B. & C. 330), that the negligence of a party taking a nego- tiable instrument fixes him with the defective title of the party passing it, observed upon, and those cases declared to be no longer law. icmi of Bengal y. Macleod, 5 Moore, Ind. App. i. (b) Indorsement in blank. Where a hill of exchange is indorsed in blank, and is transferred by the indorsee by delivery only, with- out any fresh indorsement, the transferee takes as against the acceptor any title which the intermediate indorsee possesses. Fairclough v. Pavia, 23 Law J. Rep. (n.s.) Exch. 215; 9 Exch. Rep. 690. (c) Eestricted Indorsement. Bill of exchange drawn by M, under the name of M & Co., upon and accepted by J & Co., payable six months after sight to order of M, and by M in- dorsed to B, and by B indorsed to C, " value in ac- count with the Oriental Bank," and by C indorsed to S. Action by S, as indorsee, against M, as drawer, upon the bUI being dishonoured. Demurrer, that the indorsement preceding that to S was restrictive : — Held, by the Supreme Court of Hong Kong, that there was nothing upon the indorsement by B to preclude C, the restricted indorsee, from making an assignment of the bill, so as to give the subsequent indorsee a right of action for the benefit of the re- straining indorser, or cestui que trust, as the case may be. Such decision, on appeal, affirmed by the Judicial Committee of the Privy Council. Murrow T. Stuart, 8 Moore, P.C.C. 267. (d) Without Indorsement. W, being the representative of a deceased holder of a bill of exchange, requested R, who had guaran- teed the payment, to see it paid. R. employed the plaintiff to sue upon it in his own name, and informed W of the fact, saying that he required the bill to de- liver to the plaintiff for that purpose. W thereupon gave the bill to R, who, after making a copy in his presence, gave it back, saying it would be safer in the hands of W until it was wanted. The copy was then delivered to the plaintiff, who commenced the present action. W shortly afterwards delivered the bill to his own attorney to take such steps as he might judge necessary and get the money, and the bill was subsequently given to the plaintiffi The de- fendant pleaded a denial of the indorsement, and that the plaintiff was not the holder of the bill at the commencement of the suit: — Held, that as the plaintiff had no interest in nor actual possession of the bill, nor any constructive possession thereof, inas- much as neither R nor W was his agent, the defen- dant was entitled to the verdict upon both pleas. Errnnet v. Tottenham, 22 Law J. Rep. (n.s.) Exch. 281; 8 Exch. Rep. 884. (e) Delivery for special Purpose. A, being the payee and holder of a bill of exchange, wrote his name upon it, and gave it to B for the pur- pose of getting it discounted. B never paid any money in respect of the bill, but kept it until it was overdue, when he delivered it to C vrithout receiving any value for it : — Held, that there was no indorse- ment by A to B. Lloyd, r. Howard, 20 Law J. Rep. (if.s.) Exch. 1; IS Q.B. Rep. 995. Qucere whether there was any indorsement by B to C. Ibid. Where E wrote his name on the back of a bill of exchange, and delivered it to B to get it discounted, and B deposited it with T, receiving from him a memorandum that certain goods and chattels enu- merated, and amongst them the bill in question, would be sold if not redeemed within a specified time, Held, that there was an indorsement of the bill from E to T. Barber v. Richards, 20 Law J. Rep. (n.s.) Exch. 135; 6 Exch. Rep. 63. (/) After Matv/rity. [See Jewell v. Parr, ante, (B) Stamp (a).] The right of an indorsee of an overdue bill of ex- change to sue the acceptor is not defeated by the existence of a debt due from the drawer to the ac- ceptor, and notice by the latter to the drawer, before indorsement, of his election to set off the amount against the bill; nor is the indorsee of such overdue biU of exchange affected by the existence of a right of set-off as between the acceptor and the drawer, although the bill was indorsed without value and for the purpose of defeating the set-off. Quids v. Sar- mo», 24 Law J. Rep. (n.s.) Exch. 66; 10 Exch. Rep. 572. Therefore, where to an action by the indorsee against the acceptor of a bill of exchange, the defen- dant pleaded that after the bill became due, and be- fore indorsement, the drawer was indebted to the defendant in a sum exceeding the amount of the bill, and that the drawee, in order to defraud the defen- dant and in collusion with the plaintiff, indorsed the bill to the plaintiff after it became due, in order to enable him to sue the defendant on it, and without consideration, and that the plaintiff sued merely as the agent of the drawer and in collusion with him, and that the sum due from the drawer to the defen- dant had not been paid, — Held, that the plea was no answer to the action. Ibid. It is no defence to an action against the acceptor of a bill of exchange that the bill was given for bets on horse-races made by the drawer as the acceptor's agent, but paid by him without the acceptor's re- quest. Ibid. (F) Accommodation Bills. In an action by an indorsee against the accommo- dation acceptor of a bill, it is not a good defence to the further maintenance that, after action brought. BILLS AND NOTES; (G) Disohaeqe feom Liabiiitt on. 103 the drawer paid the amount of the bill and interest to the indorsee, under a Judge's order in another ac- tion brought by the indorsee against the drawer. EamdaU v. Moon, 21 Law J. Eep. (w.s.) C.P. 226; 12 Com. B. Eep. 261. An indorsee for value of an accommodation bill, without notice that it is one of that description, may, notwithstanding notice subsequently acquired, re- lease the drawer without releasing the acceptor. Ex pwrte Qraham in re Black, 5 De Gex, M. & G. 3S6. (G) Discharge fbom Liability on. [Seeawie, (C) Alteratiom, (6).] {a) By Payment. The first count was on a promissory note of the defendant for 6002., dated the 7th of December 1 845 ; second count on a similar note, dated the 20th of January 1846, both payable on demand to J. Clark, the testator; third count, money lent; fourth count, account stated. Pleas to the first and second counts, first, payment; second, that after the making of the notes, and before demand of the principal or interest, and before any breach of the promises, J. Clark ex- onerated and discharged the defendant froAi payment of the notes; third, that after making the notes it was agreed between J. Clark and the defendant that the latter should purchase with his own money a piece of paper marked with a 1 Of. receipt stamp, and should fill up and write on it thus :_" Hull, Feb. 16, 1846. — Received of R. Dauber (the defendant) the sum of 1,0802., being the principal and interest on two notes, dated December 1845 and January 1846, in full of all demands ;' ' that the defendant should suffer J. Clark to sign his name, and that such purchase of the paper and such writing out and filling up, arid permitting J. Clark to sign it, should be accepted by J. Clark in full satisfaction and discharge of the said causes of action. Fourth plea, to the third and fourth counts, non assumpsit; fifth, to the same, payment; sixth, to the same, the Statute of Limitations; se- venth, to the same, a similar plea to the third plea. In 1835 J. Clark agreed to lend the defendant 1,0002. on receiving two promissory notes for 5002. each. The notes were given, and the interest thereupon regularly paid by the defendant to J. Clark, who on receiving it was in the habit of indorsing a memoran- dum on the back of the notes. The back of the notes being at length entirely covered, J. Clark pro- posed that the notes should be cancelled and others substituted, which was accordingly done and the notes in question given by the defendant. In February 1846 J. Clark, expressing a wish to make the defen- dant a present of the 1,0002., directed him to buy a 1 Os. stamp and draw out a receipt for 1,0002., and 802. for interest, which having been done and the receipt having been signed by Clark, no further interest was paid. J. Clark subsequently died, having previously bequeathed the notes in question to his executors, with certain directions as to the investment of the proceeds: Held, first, that the transaction did not amount to a payment of the notes. Secondly, that the third and seventh pleas were not supported. Thirdly, that the second plea of discharge was proved; that a liability on a bill of exchange may be dis- charged by parol, whether between immediate or intermediate parties; and that the same rule applies to promissory notes; and, therefore, that the second plea was good on motion for judgment Turn ohsicmte veredicto. Lastly, that the giving of the receipt was not a part payment or acknowledgment of the debt, so as to take the case out of theStatute of Limitations; and that the renewal of the two notes in January 1846 could not be considered as a promise so as to render the defendant liable by a new promise to pay the original notes. Foster v. Dawber, 20 Law J. Rep. (U.S.) Exch. 305; 6 Exch. Rep. 839. The indorsee of a bill of exchange is entitled to proceed, in an action against the acceptor, for the recovery of costs, though, pending the action, pay- ment in full satisfaction of the amount of the bill with interest, and all monies due thereon, be made by another party to the bill and accepted by the plaintiff. Goodmn v. Cremer, 22 Law J. Eep. (n.s.) Q.B. 30; 18 Q.B. Eep. 757. Where, therefore, to a declaration against the ac- ceptor of a bill of exchange for 492. 16*. indorsed by W T to the plaintiff, the defendant pleaded, first, non accepit; secondly, {pwis darrein continuance), that after the pleading of the first plea W T had paid to the plaintiff, then being the holder of the bill, and the plaintiff had accepted 602., being the full amount of the bill and aU interest due thereon, in full satis- faction and discharge of the said bill, and of all monies due and payable on account and in respect thereof, — Held, on demurrer, that the plea was no bar to the further continuance of the action. Ibid. (5) By cancelling Acceptance. A S, a merchant residing at Trieste, in November 1841, drew upon Messrs. D & Co., the defendants, merchants residing in Liverpool, a number of bills in two parts, and requested them to accept and send them to Messrs. Glyn & Co. the London bankers of the defendants, to be held by them at the disposition of the holders of the seconds. The seconds were negotiated at Trieste and other places, and were ad- dressed at the foot to Messrs. D & Co. (the defen- dants), payable in London, the firsts with Messrs. Glyn & Co. Messrs. D & Co. wrote across the bills a memorandum of acceptance and transmitted them to Messrs. Glyn & Co., to be held at the disposition of the holders of the seconds, and by letters dated the 3rd of December and the 8th of December, informed A S of what they had done. At the time the firsts were so remitted to Messrs. D & Co. A S had sent the seconds to Messrs. F & Co. of Paris, for discount, but they declined to discount them, and they were received back by A S on the 8th and 13th of December, and then cancelled by him. On the 4th of December A S wrote to Messrs. Glyn & Co. requesting them to hand to Messrs. D & Co. all the firsts so drawn by him upon them and handed to Messrs. Glyn & Co. as before mentioned. He also wrote to Messrs. D & Co. to request them to instruct Messrs. Glyn & Co. to return all thesaid firsts which remained on their hands. On the 7th of December A S wrote to Messrs. D & Co. that he bad annulled the previous instructions to Messrs. Glyn & Co., and he requested Messrs. D & Co. to replace the firsts in the hands of Messrs. Glyn & Co. to be held as before. Messrs. Glyn & Co., on the 15th of Decem- ber, remitted the bills to Messrs. D & Co. pursuant to the letter of the 4th ; and Messrs. D & Co. on the 16th cancelled the acceptances. On the 18th of December Messrs. D & Co., after the receipt of the 104 BILLS AND NOTES; (G) DiscHAsaE peom Liability on. letter of the "th of December, wrote as follows : — " Aa we stated on the 16th, the firsts of your drafts, which Glyn & Co. returned to us, were immediately cancelled, and it would hardly do therefore to re- issue them in their present state; but we have to-day written to GIjti & Co. explaining this, and request- ing them to refer the holders of the seconds to us when they are presented to them." On the 21st, 2"2nd, and 23rd of December A S issued what pur- ported to be seconds to intermediate indorsees, fi-om whom the plaintiffs afterwards received them for value in due course of business, the said intermediate indorsees having no knowledge of the correspondence except that A S represented to them that the firsts had been accepted : — Held, in an action by the holders against Messrs. D &. Co., that the acceptances were cancelled b_v the letter of the 4th of December being acted upon according to the intention of the drawer, and that the subsequent indorsements of the new seconds to the plaintiff conferred no right against Messrs. D & Co. Ealli v. Denistoun, 2frLaw J. Eep. (n.s ) Exch. 278; 6 Exch. Rep. 483. QtuBre — whether the letter of the 18th of Decem- ber amounted to a fresh acceptance; but held, that if it did, the defendants having pleaded the facts as above stated, such firesh acceptance should have been new assigned. Ibid. (c) By giving Time. To a declaration by the payee against one of two makers of a joint and several promissory note pay- able on demand, the defendant pleaded that he made the note as surety and for the accommodation of F, his co-maker, and that there never was any value or consideration for the defendant making or paying the said note, all which had always been known to the plaintiff; and averred that after the note had become due and payment had been demanded of F, the plaintiff, being the holder, gave time to F, without the consent of the defendant. After verdict for the defendant on this plea, — Held, that it was no answer to the action. Manley v. Boycot, 21 l.aw J. Eep. (N.s.) Q.B. 265; 2 E. & B. 46. The bond fide holder of a bill or note cannot be prejudiced in the rights which he has according to the terms of the instrument, by knowledge that the acceptor or maker is surety for another, where there is no specific agreement, at the time when he takes the instrument, to receive it from the acceptor or maker as a surety only. Ibid. Quare — whether if such a contemporaneous agree- ment be proved, the acceptor or maker is dischaged by time being given to his principal. Ibid, (H) Eetirisg Bills. According to the ordinary meaning of the word *' retire" aa applied to a bUl of exchange, the retiring of a bill at maturity by an acceptor takes it entirely out of circulation; but if an indorser "retires" it, he merely withdraws it from circulation as far as he himself is concerned, and may hold it with the same remedies as if he had paid the amount in due course to his indorsee. Elsam v. Denny, 23 Law J. Rep, (U.S.) C.P. 190; 15 Com. B. Rep. S7. (I) CONSIDEEATION. [See Usury.] Assumpsit on a bill of exchange, drawn by E A B, and accepted by the defendant, payable to the order of the drawer, and by E A B indorsed to W C, who indorsed the same to the plaintiff. Plea, that the bill was drawn for the accommodation of the defen- dant, and for the purpose of getting it discounted, and was indorsed in blank and delivered to the defendant; that before the biU became due the defendant delivered it to W M, who received and held it for the special purpose of getting it discounted for the defendant, and paying over the proceeds to the defendant or of returning the same; that W M did not get the bill discounted, or pay over any proceeds to him, or return the bill, but delivered the same to W C for the purpose of his, W C's, discounting it; that W C, in violation of the said purpose and against good faith, without the authority or know- ledge of the defendant or of W M, without any con- sideration or value whatever for the said indorsement, afterwards indorsed the bill to the plaintiff; and that there never was any value or consideration for the defendant's acceptance, or the said indorsements. On the part of the defendant evidence was given shewing that the bill was drawn as an accommoda- tion bill, and that M had received it in the manner and for the purpose alleged in the plea; that he had indorsed it to \V C for the purpose of his getting it discounted, who promised to do so, and to pay over the money at a stated time and place; that W C failed to perform his promise, and had never paid over any money on account of the bill : — Held, that from such evidence, the truth of the allegations in the plea as to the indorsement of the bill to the plaintiff having been against good faith and without value, might be inferred, and, therefore, that sufficient was shewn to cast on the plaintiff the onus of proving that he had given value for the bill, and in the absence of such proof to entitle the defendant to a verdict in his favoxir. Smith v. Braine, 20 Law J, Eep, (N.S.) Q.B. 201; 16 Q.B. Rep, 244. A plea to an action on a promissory note alleging '* that the note was given without consideration," and stating "that it was obtained from the defendant upon a representation by the plaintiff that a sum of money was owing from the defendant to the plaintiff by virtue of an indenture, whereas no such sum was owing," is a good plea of no consideration, without alleging that the representation was made "fraudu- lently," or that it was a representation of a matter of fact. SouthaU v. Bigg and Forman v. Wright, 20 Law J. Eep. (s.s) C.P. 145; 11 Com. B. Rep. 481. Such a plea, with the addition of the word "frau- dulently" in the statement of the misrepresentation, is sufficiently proved by a finding that the note was given upon the faith of an inniicent misrepresentation of a matter of law by the plaintiff, and the word "fraudulently" may be rejected as surplusage. Ibid. In an action by the payee against the maker of a promissory note, the defendant pleaded that it was made by the defendant at the request of the plaintiff, as a collateral security for a debt due from J B to the plaintiff, and that the defendant was not liable to pay the debt or to give the note as security, and that there was no other consideration : Held, a gond plea of want of consideration, after verdict. Crofts \. L'cale, 20 Law J. Rep. (k.s.) C.P, 186; 11 Com. B. Rep. 172. BILLS AND NOTES. 105 Where in an action on a bill of exchange by the indorsee against the acceptor, the defendant pleads that the bill was obtained from him by fraud, and that the plaintiff gave no consideration for it, to which the plaintiff replies de ifiyurid, although the latter averment is essential to make the plea good, proof of the fraud throws upon the plaintiff the buiv then of proving that he gave consideration for the bill. Harvey v. Towers, 20 Law J. Rep. (n.s.) Exch. 318; 6 Exch. Rep. 656. Upon the trial of such an issue it is not the duty of the Judge to determine whether fraud is proved, but only whether there is evidence of it to go to the jury; and it is correct for him to direct the jury that if they think the fraud proved, in the absence of proof of consideration having been given by the plaintiff, the defendant is entitled to the verdict. Ibid. Action on a bill of exchange drawn by M upon and accepted by the defendant, indorsed by M to H, and by H to the plEiintiff. First plea, that the biU was accepted by the defendant, and drawn and in- dorsed in blank by M without value; that the defendant gave it to E to get it discounted for the defendant; that E did not get it discounted, but, in fraud of the defendant, and without the consent of M, delivered it to some person unknown ; and that neither H nor the plaintiff gave value for the in- dorsements to them respectively. Second plea, the same as the first, except that, instead of alleging want of consideration by H and the plaintiff, it alleged that H and the plaintiff respectively had notice that the bill had been obtained from the defendant by fraud. On the part of the defendant, evidence was given that E had obtained possession of the bill by fraud, upon which the Judge ruled that the onus was cast upon the plaintiff of proving that he gave value : — Held, that this ruling was correct. Ben/y v. Aldernmn, 23 Law J. Rep. (N.s.) C.P. 34; 14 Com. B. Rep. 95. A plea of want of consideration, in an action on a bill of exchange, must, besides shewing the circum- stances, distinctly allege that there was no other consideration than that mentioned. Bodem v. Wright, 12 Com. B. Rep. 445. A banking firm advanced money to A and took a promissory note for such advance, which was signed by A and his wife, who had no separate property. A died an insolvent. Nine days after his death one of the partners in the bank went to the house of the widow, taking with him a proper stamp, and asked her if she could pay any money on account, and on her answering that she could not, obtained her signature to a new promissory note, written by him upon the stamp. It being doubtful whether the plaintiff knew that she was not liable upon the original note, and nothing having been mentioned at the interview concerning her non-liability, — Held, that the note so obtained was invalid, and that the case was too plain to render it necessary to send it to be tried at law. Ooward v. Hughes, 1 Kay & J. 443. (J) Payment. [See ante, (G) Discharge from Liability on (o).] To an action by the indorsee of a bill of exchange against the acceptor, the defendant pleaded that J H, the drawer, indorsed the bill to the plaintiff without value or consideration, and that the plaintiff always Digest, 1860—1855. held it without value or consideration, and that after the bill became due, J H accepted certain scrip cer- tificates from the defendant in full satisfaction and discharge of the bill. The plaintiff replied that the bill was indorsed for value and consideration, and upon this issue the defendant had a verdict: — Held, that the plaintiff was entitled to judgment nom ohsta/nte veredicto. MiVnes v. Dcvwson, 20 Law J. Rep, (n.s.) Exch. 81; 5 Exch. Rep. 948. An agreement between the payee and one Of several makers of a joint and several promissory note, that the payee sha:ll take another promissory note in satisfaction of the first, with payment of the note taken by the payee on such understanding, amounts to payment by the other makers of the joint and several note. Thorne v. Smith, 20 Law J. Rep. (N.s.) C.P. 71; 10 Com. B. Rep. 659; 2 L. M. & P. P.C. 43. A joint and several promissory note had been given by the defendant and K to the plain- tiffs. K agreed with L and the plaintiffs that the plaintiffs should take L's promissory note in satisfaction of the defendant's liability on his joint and several note. The plaintiffs having taken L's note on that understanding, received payment of it from R, authorized by L, to pay it : — Held, that in an action on the first note, the above facts might be given in evidence under a plea alleging payment by the defendant. Ibid. By the rules of a SOi money club, each member was to pay a weekly sum for each of his shares, and to take his share by sale as the sum of 50^. was paid in by the members, upon giving security to be ap- proved of by the committee. Interest was to be paid from immediately after the sale. B being a member of such club for a 40Z. share (which was subject to similar rules as the bdl. shares) became a purchaser of a 40Z. share, and together with the defendant and another person gave a joint promissory note to the treasurer of the club for 40^., payable on demand with interest. The weekly payments were duly made for some time by A and his sureties, but on their being discontinued an action was brought upon the note for the full amount: — Held, that the weekly payments were not evidence under a plea of pay- ment. Jones V. Gretton, 22 Law J. Rep. (n.s.) Exch. 247; 8 Exch. Rep. 773. A, B, and C were in partnership, as merchants, having three houses of business, at Liverpool, Man- chester and Shanghai. Their course of business was, for A to buy, for their customers, goodsat Manchester, to be consigned through the Liverpool house to the house at Shanghai for sale; and with the proceeds other goods were to be purchased and remitted to the Liverpool house. To keep their customers out of cash advances, bills of exchange for the price of the goods were drawn by the firm upon, and accepted by, the customers, and were generally discounted and the money applied in payment for the goods. The agreement was, that the return goods from Shanghai should be in the hands of the firm as security, as well for their commission as for the amount of the bills so drawn by them. The firm became bankrupt; but the fiat was subsequently annulled by an arrangement for a composition, and by the terms of the deed the equities and liens of the creditors were reserved as if the bankruptcy had continued. At the date of the fiat certain of such return goods were in the hands 106 BILLS AND NOTES; (L) Notice op Dishonocb. of the firm in specie, and other such goods, arriving subsequently, were possessed by the trustees of the composition deed. P, a customer, and the acceptor of certain bills, had, previously to the fiat, died con- fessedly insolvent, though not judicially declared so. On a suit by the bill holders, — Held, that the rule in Ex parte Waring (\9 Ves. 345) was applicable; and that the bill holders were entitled to avail themselves of the equity of the firm upon the goods in their possession, and to have such goods applied in the first place in payment of their bills either in full or pro tanto; and semble, to prove for the deficiency, if any. Powles v. Hargreaves, 23 Law J. Rep. (n.s.) Chanc. 1 j 3 De Gex, M. & G. 430. For the application of the rule in Ex parte Waring, it is not necessary that there should be a double bankruptcy ; it is sufficient if both parties are insol- vent; nor, that the deposited goods should be suflS- cient to cover the whole amount of the bills. The order in Ex parte Waring provided for the proof of the deficiency, if any. Ibid. (K) Protest foe Non-payment. Where a bill is paid supra protest for the honour of a party to the bill, it is not necessary that the pro- test shall have been formally drawn up or extended before the payment; but it is sufficient if the bill has in fact been protested, and a declaration that the payment was for honour made before a notary, and these facts recorded in the notarial registers before the payment was made. Oeralopulo v. WieUr, 20 Law J. Rep. (N.e.) C.P. 105; 10 Com. B. Rep. 690. The protest may be drawn up or extended at any time; and where protests had been formally drawn up before payment for honour and sent to Moscow, and an action was brought by the party who had paid for honour, and it was alleged in the declaration that " the bill was duly protested for non-payment, and thetreupon the plaintiff declared before a notary public that he would pay and did pay the said bill under the said protest," it was held, that duplicate protests made out from the notary's book after the action was brought were primary evidence as much as the protests sent to Moscow, and sufficient to sup- port the allegation in the declaration, it having been proved that a protest in fact took place before the payment, that a declaration that the payment was for honour had been made before a notary, and that these facts had been then recorded in the notary's book. Ibid. VandewaUv. Tyrell, (M.oo.&,M. 87,) examined and explained. Ibid. (L) Notice op Dishonouk. (a) Form and Seqvhites. A notice of dishonour sent by the indorsee of a bill of exchange to the drawer, stated the amount of the bill correctly, but erroneously described it as drawn by the acceptor and accepted by the drawer: — Held, a sufficient notice of dishonour. M'ellersh v. Rippen^ 21 Law J. Rep. (N.s.) Exch. 222; 7 Exch. Rep. 578. The following is a good notice of dishonour of a bill of exchange: — "We beg to acquaint you with the non-payment of Mr. Miles's acceptance to James Wright's draft of the 29th of December last at four months, oO?., amounting, with expenses, to 50i. 5s. \d., which remit us in course of post without fail, or pay to Messrs. Everards & Co., of Lynn." Everard v. Watson, 22 Law J. Rep. (n.s.) Q.B. 222; 1 E. & B. 801. (J>) By Party having no Knowledge of the Dis- honour. If a party to a bill gives a positive notice of its dishonour, which afterwards turns out to be true, it is immaterial whether he had absolute knowledge of the fact at the time when he gave the notice. Jen- nings V. RobeHs, 24 Law J. Rep. (N.S.) Q.B. 102; 4 E. & B. 616. The defendant indorsed a bill, accepted and pay- able in London, to the plaintiff, who indorsed it to a country bank. On the day when it fell due the plaintiff told the defendant that he had seen the manager of the bank, who said the bill would be back from London in the morning, and he asked the de- fendant for the money for it. Another witness gave a similar account of the conversation, but added that the plaintiff said the bill had been dishonoured. The manager of the bank did not, in fact, know that the biU had been dishonoured until the next morning, when the bill was returned. The Judge told the jury that if they believed the evidence, this was a good notice of dishonour, if the defendant so understood it. The jury found for the plaintiff: — Held, that the evidence was sufficient to make out a notice of dis- honour, and that there was no misdirection, what was said about the defendant understanding the words as a notice of dishonour being an observation in favour of the defendant, and by way of caution to the jury against giving to the words the meaning which they would ordinarily bear. Ibid. (c) At what Place. Notice of the dishonour of a bill of exchange for non-payment by the acceptor, was sent by the holder to the drawer through the post, addressed " London," the bill itself being dated London simply. The drawer resided at Chelsea, and the notice never reached him, and it was stated in evidence that had inquiry been made of the acceptor, whose address was given in the bill, the drawer's address might have been ascertained: — Held, in an action against the drawer, that due diligence on the part of the holder sufficiently appeared, and therefore, that he was entitled to succeed upon the issue of whether or not due notice of dishonour had been given. Swmester V. Barron, 21 Law J. Rep. (n.s.) Q.B. 135; 17 Q.B. Rep. 828. (d) Within what Time. Assumpsit on a bill of exchange drawn by G on 'K, indorsed by 6 to the defendant, by the defendant to A, and by A to the plaintiff. The bill became due on Saturday, the 15th of November, and was dishonoured. The plaintiff, the holder, on Monday the 17th, gave notice of dishonour to A. A gave no notice to the defendant, but on the 18th the plaintiff gave the defendant notice : — Held, that the notice to the defendant was too late. Rowe v. Tipper, ^1 Law J. Rep. (n.s.) C.P. 135; 13 Com. B. Rep. 249. (e) Waiver. In an action by a second indorsee against drawer, the defendant pleaded that he had no notice of dis- honour. Proof that the first indorsee, who had had BILLS AND NOTES; (M) Actions and Suits. 107 notice, had consented to a Judge's order for staying proceedings against him on payment of debt and costs, and that the defendant had provided the money to pay the amount under that order, is not such evidence of an admission of liability by the defendant as will dispense with proof of notice of dishonour. HoViaei v. Stames, 3 Car. & K. 19. (M) AoTioKS AKD Suits. [By Summary Procedure, see 18 & 19 Vict. c. 67.] (a) When Bill or Note lost or destroyed. [See 17 & 18 Vict. c. 125. s. 87.] In an action by the executor of the payee, against the maker of a non-negotiable note, the defendant pleaded mm fecit. It appeared at the trial that the note was lost, and secondary evidence of its contents was received : — Held, that even if the loss of a non- negotiable note be a good defence in an action on it, that defence does not arise on a plea of non fecit. Semile, per Jervis, C.J. that even if specially pleaded, it would be no defence. There was a plea which stated that the note had been destroyed in consequence of an agreement between the testator and the defendant : Held, that this could not be treated merely as a plea stating the loss of the note, by rejecting the rest of its allegations. On applica- tion by the defendant for leave to amend by plead- ing the loss of the note, the Court refused to grant him leave, although (semhle) the Court may give leave to amend after trial. Oha/mUy v. Grwndy, 23 Law J. Rep. (k.s.) C.P. 121; 14 Com. B. Rep. 608. A suit for the payment of- a promissory note al- leged to have been lost, but which was in the hands of the defendant, was dismissed, not on account of the frame of the suit, but upon the evidence, which preponderated in favour of the note having been given up by the deceased payee with a view to re- lease the debt. Coolc v. Darwin, 23 Law J. Rep. (n.s.) Chanc. 997; 18 Beav. 60. The Court will not entertain a bill for the pay- ment of money due upon a bill of exchange, which is proved to have been destroyed, the plaintiff having a sufficient remedy at law. Wright v. Lord Maid- stone, 24 Law J. Rep. (k.S.) Chanc. 623; 1 Kay & J. 701. (5) Jlate of Interest recoverable. In an action against the drawer of a bill of ex- change not bearing interest, which has been dis- honoured by non-acceptance, if the jury find the plaintiff entitled to interest by way of damages, the measure of damages is the rate of interest at the place where the bill was drawn. CiJSs v. Fremont, 22 Law J. Rep. (n.s.) Exch. 302; 9 Exch. Rep. 25. (c) Parties. [See Baron and Feme.] C & Co., merchants in London, being requested by then: correspondents H W & Co., merchants in America, in their own name, and through the me- dium of a broker, arranged for the purchase from the defendants M & Co., also London merchants, of a bill of exchange, C & Co. having at the time funds of H, W & Co. in their hands for the purpose. The bill was drawn by the defendants M & Co. on a banker at Paris, in the following form : — " A cinq jours de date, payer par cette premifere de -change. la seconde, &c., dix-neuf mille quatre cents soixante dix-huit francs cinq centimes. Valuer de Messieurs Coates & Co., que passerez," &c. The bill was handed over to C & Co. on one foreign post day, for a price then agreed upon to be paid, according to the custom of merchants in London, on the next foreign post day, and was forwarded to the plaintiffs P P, merchants at Paris, to whom H, W & Co. were indebted in more than the amount of the bill, to be collected to the credit of H, W & Co. The plaintiffs acknowledged the receipt of the bill, and stated that they had placed it to the credit of H, W & Co. The bill was not presented until it be- came due, when it was refused payment by direction of the defendants ; C & Co. having failed to pay the price agreed upon. H, W & Co. immediately re- imbursed the plaintiffs the amount of the bill and cost of protest, and the defendants were thereupon proceeded against as drawers : — Held, that the plaintifis were iondfide holders of the bill for value, and were entitled to maintain the action, though H, W & Co. were really the parties for whose benefit the action was prosecuted, C & Co. not acting as agents of H, W & Co. in the purchase of the bill, so as to pledge their credit to the defendants for the price. Poirier v. Morris, 22 Law J. Rep. (n.s.) Q.B. 313; 2E.&B. 89. (cT) Staying Proceedings. [See Randall v. Moon, ante, (F), and see Reg. Gen. Hil. Term, 1853, r. 24, 22 Law J. Rep. (n.s.) is. ; 1 E. & B. App. vi.] The plaintiff sued the defendant on a bill of ex- change, and at the same time proceeded by sum- mons in bankruptcy under the 12 & 13 Vict. c. 106. s. 78. The action having been stayed on payment of debt and costs, — Held, that the plaintiff had no light to keep the bill until the costs in bankruptcy were paid. Comes v. Taylor, 9 Exch. Rep. 441 . (e) Pleadings. [See amte, (I) Consideration — Forms of declara- tions, see IS & 16 Vict, c.,76. sch. B. No. 1S_18 As to pleas, see Reg. Gen. Trin. Term, 1853, r. 7, 22 Law J. Rep. (n.s.) li. ; 1 E. & B. xxx. — Equitable defence, see title Pleadino.] To an action upon certain bills of exchange drawn by M & Sons upon and accepted by the defendant, and payable to the plaintiff at certain periods after date, the defendant pleaded that after the bills be- came due, M & Sons made an agreement with the acceptor to discharge him on receiving 2s. 9d. in the pound upon, infer alia, the said acceptance, in con- sideration of the payment of a certain specified sum in settlement of their differences of account, and that the plaintiff took the bills after the agreement. The plea contained averments that M & Sons were the holders of the bills at the time the agreement was made, and that they afterwards delivered them to the plaintiff. The replication traversed the former of these allegations: — Held, that although the replication admitted a delivery of the bills by M & Sons to the plaintiff after the making of the agree- ment, that it did not admit such, a delivery as to give the plaintiff a new title to the bills, and conse- quently that the replication was good, as putting in issue a substantial averment in the plea. Corlett V. Booker, 5 Exch. Rep. 197. 108 BILLS AND NOTES; (M) Actions and Suits. (/) Evidence — to vary Terms of Bill. A made his promissory note payable on demand, with interest, in favour of B and C, the executors of D. A was, with several other relatives, to be en- titled to certain benefits, under D's will, upon the coming of age of the youngest legatee named in the will. By an agreement made between the legatees, the executors were authorized to lend the funds in their hands on personal security, and a part of these funds having been lent to A (as well as to the other legatees), he gave the executors the note in question. By the agreement it was settled that the notes given to the executors should not be sued on till the youngest legatee had arrived at the age mentioned in the will. The executors did not sign this agree- ment ; but when it had been signed by the other parties, took it into their possession. The executors brought the action while the legatee in question was alive, and before he had attained the specified age. A pleaded the agreement as an answer to the action, averring that plaintiffs accepted and received the note on the terms and conditions of the agreement, and that the youngest legatee was still under age. At the trial the agreement was proved : — Held, that the plea was bad in substance, for that the agreement was collateral, and was not between the same parties as the note. Sal/mom v. Webb, 3 H.L. Cas. 510. The terms of a bill of exchange cannot be altered by a parol contract. Besant v. Cross, 20 Law J. Kep. (N.s.) C.P. 173 ; 10 Com. B. Rep. 895 ; 2 L. M. & P. P.C. 35L A plea to the further maintenance of an action, brought by the indorsee against the acceptor of a bill of exchange, stating that the defendant was indebted to T the drawer, that it was agreed between them that the defendant should pay by four instal- ments, and that the defendant should accept a bill ; that the defendant accepted the bill in the declara- tion mentioned as security for the payment of the debt ; that T indorsed to the plaintiff to hold the bill as his agent ; that the defendant paid three of the instalments before action, and the fourth after action, on the day when it became due, and that it became the duty of T to return the bill to the plaintiff: — Held, a bad and non-issuable plea. Ibid. (N) Sale of Bills. Where bills of exchange are remitted for sale, and the proceeds directed to be applied to a specific pur- pose, the property in the bills remains in the remitter until the purpose for which they were remitted is satisfied. And, where the money realized by the sale was wrongfully applied by the agent, it was held by the Judicial Committee (affirming the judgment of the Court at Calcutta), that the remitter was entitled to recover the value of the bills in assumpsit, upon an indebitatus count, from the purchaser of them, who had notice of the purpose for which they were remitted, and the misapplication of the proceeds by the agent. Seal v. Dent, 8 Moore, P.C.C. 319. The vendor of a bill of exchange impliedly war- rants that it is of the kind and description that it purports on the face of it to be. Gompertz v. Bart- leU, 23 Law J. Rep. (n.s.) aB. 65 ; 2 E. & B. 849. Where, therefore, an unstamped bill of exchange, purporting to be a foreign bill drawn at Sierra Leone, but which had been really drawn in London, was sold, and refused payment by the acceptor, — Held, that the vendee was entitled to recover back the price of the bill, on the ground of a failure of con- sideration. Ibid. The vendor of a bill of exchange, though no party to the bill, is responsible for its genuineness, and if it turns out that the name of one of the parties is forged and the bill becomes valueless, he is liable to the vendee, as upon a failure of consideration. Owney v, Womersley, 24 Law J. Rep. (m.s.) Q.B. 4G ; 4 E. &B. 139. The defendants, bill brokers, having received from A a bill of exchange drawn and indorsed by A, for the purposes of being discounted, took it to the plaintiffs, who were money lenders, with whom the defendants had previously had similar dealings, and acting as principals, the defendants procured the bill to be discounted by the plaintiffe, without, however, indorsing or guaranteeing it, though asked by the plaintiffs to do so. The rate of discount charged by the defendants to A exceeded that charged by the plaintiffs to the defendants. The acceptance to the bill turned out to have been forged by A, and the bill proved valueless: — Held, that the plaintiffs were entitled to recover the sum paid to the defendants upon the discount of the bill as upon a failure of consideration. Ibid. (O) Cheques and Letters or Credit. The crossing of a cheque payable to bearer with the name of a banker does not restrict its negotiability to such banker alone. Such crossing is, however, so far a protection to the owner of the cheque that the banker upon whom the cheque is drawn ought not to pay it except through a banker, for if he does so and the person actually presenting it turns out not to be the lawful holder, the circumstance of his so paying would be strong evidence of negligence on the part of the banker, in the event of his seeking to claim credit against his customer for the amount. Bellamy v. Majoribamks, 21 Law J. Rep. (n.s.) Exch. 70; 7 Exch. Rep. 389. The banker's duty is the same where the crossing is by the customer or by any intermediate holder, or where the original crossing is erased, and the name of another banker written instead of it. Ibid. In an action against bankers for money lent, to which the defendants pleaded payment, it appeared that the plaintiffs had drawn a cheque on the defen- dants, crossed thus, " Bank of England, for account of the Accountant General." The payee to whom this cheque was delivered struck out the crossing by running' a pen through it, leaving it, however, per- fectly legible, and crossed it a second time with the name of his own bankers and paid it into their bank to the credit of his own account. The cheque being presented by them for payment was paid by the de- fendants, who charged it to the debit of the plaintiffs' account. The payee appropriated the sum so re- ceived to his own purposes, and it never was paid to the Accountant General ; and the plaintiffs, who were trustees, were obliged to pay the amount them- selves : — Held, that the circumstance of this cheque being thus doubly crossed afforded no additional evi- dence of negligence against the defendants. Ibid. In an action against bankers for refusing to pay a trader's cheques, they having at the time of refusal sufficient assets of the trader, the latter may recover BILLS AND NOTES— BILLS OF SALE. 109 substantial damages without proof of actual damage. Rolm V. Steward, 23 Law J. Rep. (k.s.) C.P. 148; 14 Com. B. Eep. S95. A letter of credit saying, " Please to honour the drafts of A to the extent of 4S01. 9s., and charge the same to the account of B," is an authority to make the payment, but the possession of it by the person to whom it is addressed does not prove that the pay- ment has been made. To shew that the payment has been made there must be a draft by A. Orr v. the Union Bwnk of Scotlamd, 1 Macq. H.L.C. 613. Payment of a forged draft is no payment as be- tween the person paying and the person whose name is forged. Ibid. The person presenting the letter of credit is not necessarily the person entitled to make the draft. Therefore the bankers to whom the letter of credit is addressed ought to see that the signature to the draft is genuine. If they do not, the loss will be their own. Ibid. When, for a sum paid down, a banker grants a letter of credit, he must shew that it has been com- plied with, or pay back the money. In such a case, the banker cannot insist on having the letter of credit brought back to him. Ibid. The rules applicable to negotiable securities do not hold with respect to letters of credit. Ibid. Semble — that the laws of England and of Scotland on these points correspond. Ibid. BILLS OF SALK. [As to registering, see 17 & 18 Vict, u, 36.] Judgment having been obtained against the plain- tiff in 1844, he executed a bill of sale of his plate to M to defeat the execution, M afterwards took an assignment of the judgment, and in 1 848 issued an execution against the plaintiff and seized his goods, whereupon the latter, for the purpose of defeating the execution of M, deposited the plate with the de- fendant : — Held, in an action of trover for the plate, that the defendant was entitled to set up the right of M to it. Cheesnum v. ExceU, 20 Law J. Rep. (k.s.) Exch. 209; 6 Exch. Rep. 341. Semhle that where property is pledged to which the pledgor has no title, and which he has no right to pledge, the pledgee is bound to return it to the true owner ; his undertaking, in the absence of a special contract to the contrary, being that he will return it to the pledgor, provided it turns out not to be the property of another. Ibid. A bill of sale purported to assign to G R " all the household goods and furniture of every kind and description whatsoever in the house No. 2, Meadow Place, more particularly mentioned and set forth in an inventory or schedule of even date, and given up to the said G R on the execution thereof." At the time of the execution of the bill of sale one chair was delivered to G R in the name of the whole of the said goods and furniture. The inventory did not specify all the goods and furniture in the house : — Held, that the bill of sale only operated as an assign- ment of the goods and furniture specified in the in- ventory. Wood V. Jtoweliffe, 20 Law J. Rep. (N.s.) Exch. 285; 6 Exch. Rep. 407. R, in consideration of past and future advances, by bill of sale, dated the 28th of November 1850, assigned all his household goods, growing crops, &e., to W, with a proviso of defeasance if he should re- pay W the sums advanced and to be advanced, in all not exceeding 7001. and interest thereon, on the 1st of January 1851; but it was provided that, if default was made in payment on that day, W should have possession of all the goods, &c., at his discre- tion should sell them, and should retain the proceeds in trust to pay himself the sums so due, and to pay the surplus, if any, to R. Default was made on the 1st of January 1851, and on the 4th of February W took possession of the goods, &c. On the 25th of February R filed his petition under the 7 & 8 Vict, c. S6, and the plaintiffs were appointed assignees. On the 4th of March W sold the property included in the bill of sale : — Held, in an action brought by the assignees of R, that by this sale W did not avail himself of the bill of sale within the meaning of the 7 & 8 Vict. c. 96. rs. 21, and that the assignees were not entitled to recover the goods. Simpson v. Wood, 21 Law J. Rep. (n.s.) Exch. 1S2; 7 Exch. Rep. 349. The sheriff being in possession of the goods of one T under afi. fa,, on the evening of Saturday the 20th of December executed a bill of sale of the goods seized to L, the execution creditor, containing a clause of indemnity by L to the sheriff. T had pre- viously committed an act of bankruptcy, upon which he was afterwards made a bankrupt. Notice of this act of bankruptcy was sent to L's residence, but in consequence of his absence from home, was not re- ceived by him until Sunday. L did not execute the bill of sale until Monday the 22nd, when the goods were delivered to him : — Held, that the property passed upon the execution of the bill of sale by the she- riff, and that the execution was, therefore, "exe- cuted and levied by seizure and sale" within the 12 & 13 Vict. c. 106. 8. 133. Christie v. Wilmington, 22 Law J. Rep. (n.s.) Exch. 212; 8 Exch. Rep. 287. By bill of sale under seal, dated the 26th of Ja- nuary 1 848, S assigned to the plaintiff all his house- hold goods in and about his dwelling-house, and all his live and dead farming stock, crops of grain and the whole of his personal estate in and about the same, and upon and about the said farm and lands, to hold the same unto the plaintiff, his executors, administrators and assigns, as a security for the payment of certain advances made and to be made, not exceeding in the whole 2,000t Proviso, that it should be lawful for the plaintiff, his executors and administrators, by virtue of the said indenture at any time or times to seize and take possession of the said household goods, live and dead farming stock, crops of grain and other effects, which should or might from time to time be substituted in lieu of the said stock, crops and implements of husbandry thereby assigned, or any part thereof, or which should for the time being be found in or about the messuage or dwelling-house, farm, lands, and premises in the life- time or after the decease of the said S, and to sell the same, and out of the proceeds to pay all costs, &c., and monies due to the plaintiff. Further sums were advanced, and on the 21st of February 1849 a sum of 1,297 1. 18s. 7d. being then due under the deed, the plaintiff, under the powers thereby granted, seized and took possession (amongst other things) of some crops of grain then growing upon the said &rm no BILLS OF SALE— BOND. and lands, and which had heen sown by the said S subsequently to the execution of the said deed. A man was then put in possession of these crops, and re- mained ill possession of the same on behalf of the plain titf. The day after this seizure RJi. fa. upon a judgment recovered against S was delivered to the sheriff, and under it he seized the said growing crops. On the 8th of March S presented his petition to the Insolvent Court under S & 6 Vict. c. 116. and 7 & 8 Vict. c. 96. The official assignee in the first in- stance claimed the crops and other things seized as above mentioned by the plaintiff, and a bill was filed by him in the Court of Chancery to restrain the plaintiff from selling the same. This bill was after- wards dismissed, upon terms agreed on between the plaintiff and the assignee, and the latter then aban- doned all claim to such crops and other things. The sheriff continued in possession ; and the crops were subsequently sold, and produced less than the claim of the plaintiff: — Held, that as against the defen- dant, the execution creditor, the plaintiff was entitled to the proceeds of the growing crops. Congreve v. Evem, 23 Law J. Eep. (n.s.) Exch. 21Z.; 10 Exch. Eep. 298. BOND. [See Extent — Replevik — Stamp.] (A) Construction and Operation. (a) Joint and several Bond. (5) Merger of SirrifpU Contract Debt, (c) Forfeiture. (B) LiABiLiTT OF Obligor. (a) On Collector's Bond. , (6) On Indemnity Bond. (c) PTAem affected or discharged ly Change of Circumstances or Parties. (d) When discharged by Payment. (e) DiscJiarge of, iy Operation of the Sta- tute of Limitaiions. (C) Release. (D) Action on. (a) Paymeni into Cowrt. (6) Pleas. (c) Signing Judgment for want of Plea. (A) Constkuotion and Operation. (as) Joi/nt amd several Bond. Bond by three obhgors, whereby they bound them- selves "jointly" and their heirs, &c. respectively, to pay, which was conditioned to be void if they or either of them, their or either of their heirs paid : Held, that it was a joint and several obligation, and one having died, that his assets were liable. Tipjpins V. Coaies, 18 Beav. 401. (i) Merger of Sirrvple Contract Debt. A bond given for a simple contract debt merges it, whatever may have been the intention of the parties. Price v. MovMon, 20 Law J. Rep. (n.s.) C.P. 102; 10 Com. B. Rep. 561. To an indebitatus count in debt for 6,0002., the defendant pleaded as to 3,000t parcel, &c., that he agreed with the plaintiffs to deliver an indenture conditioned for the payment of the said sum of 3,0001. on a certain day; that tiie defendant, with the- assent and consent and at the request of the plaintiffs, did deliver an indenture and thereby covenanted to pay the said sum of 3,000i. Replication — That the indenture was made by way of security for the pay- ment of the said sum, and that it was expressed to be made as such security. On demurrer, — Held, that the plea was a good plea of merger, although it contained no allegation that the deed was accepted in satisfaction; and that the replication was bad and gave no answer to the plea. Ibid. In the case of a bond given by one of several joint debtors the legal effect of which is to merge the simple contract debt, can this effect be con- trouled by the parties agreeing by a separate instru- ment that such bond shall be deemed a collateral security only, and that all remedies sheill remain for the simple contract debt, as if the bond had not been taken — ^ucere. Owen v. Soman, 3 Mac & G. 378. (c) Forfdtwe, Debt against the defendant, as surety for J C, on a bond conditioned that J C would duly and faith- fully account for, apply and pay to the plaintiff all sums of money which had or should come to his hands as treasurer of the S M turnpike roads, according to the direction, true intent and meaning of the 26 Geo. 4. c. Ixxi., and three other acts extending that act, and of the 3 Geo. 4. c. 126. Plea that the 3 Geo^ 4. c. 126. was repealed by the 4 Geo. 4. c. 95, and that up to the time of such repeal J C had duly and faithfully accounted^ &c. Replication, assigning as a breach that although after the said repeal J C was required by the then trustees of the S M roads to render to A C P and S G, then being persons duly appointed by them for that purpose, a true and perfect account in writing of all monies which he had received and disbursed as treasurer, and although a reasonable time had elapsed, yet the said J C had not rendered such account; and for a further breach, that J C had received large sums of money as treasurer, and had failed duly to account for and pay the same, according to the true intent and meaning of the said acts and the statute 3 Geo. 4. c. 126, and of the said bond; although before and after the said repeal large sums remained in his hands, and although during all the time there were trustees entitled and ready to receive the same, and although no other person was authorized to receive the same. Re- joinders, as to the first breach, that a part of the sum was received by J C before the repeal of the 3 Geo. 4, c. 126, for which he had duly accounted, and that the residue of the said sum was received after the repeal of the 3 Geo. 4. c 126. And as to the other breach, that no part of the sums in that breach mentioned was received by J C before the repeal of the 3 Geo. 4. u. 126: Held, upon de- murrer, first, that the repeal of the 3 Geo. 4. c. 126, did not of itself render the bond invalid, supposing the enactments of the local act to be sufficient for enforcing it. Secondly, that the first breach assigned was bad, as the local act provided only for the trea- surer being called upon to account to the trustees themselves, and the section in the 3 Geo. 4. c. 126, requiring the treasurer to accoxmt to such person or persons as the trustees should appoint, had been BOND; (B) Liability op the Obligor. Ill repealed by the 4 Geo. 4. c. fl5. Thirdly, that alfliough the other breach required no aid from the repealed eection of the 3 Geo. 4. c. 126, and there- fore that the statement as to that act was surplusage; yet as there was no allegation of a requisition to account or pay, as provided by the local act, the breach, failed to shew a forfeiture of the bond under that act, and was therefore bad. Fourthly, that the plea admitting a non-performance of the condition, subsequent to the repeal of the 3 Geo. 4. c. 126. did not answer the whole of the declaration, and was therefore bad. Dams v. Ca/ry, 20 Law J. Rep. (n.s.) Q.B. 48; IS Q.B. Rep. 418. The condition of a bond executed by the defendant as surety for A recited {ynter (dia) that it had been agreed between the directors of a company and A, that A should proceed to such a place in the East Indies, at such time and by such conveyance as the directors should direct, and there serve the company as engineer, at a certain monthly salary, to commence from the day of his embarkation at Southampton. The defeazance provided (voter alia) that if A should forthwith proceed to such place in the East Indies at such time and by such conveyance as the directors should direct, the bond should be void. A was paid part of his salary is advance in London by a clerk of the company, who, at the same time, gave him a ticket for the steamer from Marseilles, and money for the journey to that place, but he re- mained at Boulogne for some time and then returned to London : — Held, in an action against the defen- dant on the bond, that the embarkation of A at Southampton was not a x;ondition to the operation of the bond; and that there was evidence of A having been directed by the directors to proceed to the East Indies by Marseilles, and that by his neglect the bond was forfeited. Evans v. Erie, 23 Law J. Rep. (n.s.) Exch. 26S; 10 Exch. Rep. 1. {B) Liability op the Obligor. {a) On Collector's Bond, The sureties to a bond, given by a person ap- pointed a collector of Income Tax, under 5 & 6 Vict c. 35, and conditioned for the payment of all sums assessed and collected, or to be assessed and collected by him for a particular year, as such col- lector, are not liable in respect of sums collected by hun without legal authority. Kepp v. Wiggett, 20 Law J. Bep. (n.s.) C.P. 49; 10 Com. B. Rep. 35. Such a person has no legal authority to collect sums assessed under 5 & 6 Vict. u. 35, until he is fumi^ed with the duplicate assessment and warrant to collect, mentioned in section 172. of that act. Ibid. In a bond given as a security for the due perform- ance by J L of his office of collector, it was recited that he had been duly nominated and appointed a collector for the year ending the 6th of April 1847 ; and that duplicates of the assessments and a warrant for collecting the same had been delivered to him. An action was brought, and judgment given against the sureties to the bond, for default by J L in non- payment of sums received by him as such collector. Upon a writ of inquiry to assess the damages by reason of the breaches assigned, the jury found a verdict for the plaintiffs, subject to a case, which stated that J L having been nominated and appointed in the usual manner, collected several sums which had been assessed under Schedules A and D of the act for the year ending the 5th of April 1847; that as to the sums collected by him under Schedule A duplicates of assessment and a warrant for collection had been delivered to him, before he collected these sums ; but, as to the sums collected under Schedule D, that no duplicate assessment or warrant had been delivered to him, and that, at the time when he re- ceived those sums, the time appointed for appeals against the assessments under Schedule D had not expired : — Held, that the sureties were liable for the sums collected by J L under Schedule A, but that they were not liable for those collected under Sche- dule D ; such collection having been an unautho- rized act, for want of the duplicate assessment and warrant. Ibid. Held, also, that the above recitals in the bond did not estop the defendants from setting up the above defence, inasmuch as it was true that J L had been nominated and appointed a collector, in one sense, and duplicates of assessments and warrants to collect had been delivered to him with regard to the sums assessed under Schedule A, though not as to those assessed under Schedule D. Ibid. (fi) On Indemnity Bond. By a deed, atter reciting the appointment of W T as bailiff to the plaintiffs, sheriff of Middlesex, the defendants, W T and his sureties, covenanted to save harmless the plaintiffs from any action brought against them touching or concerning any matter " wherein the said bailiff shall act, or assume to act as bailiff," or " for or by reason of any extortion or escape happening by the act or default of the said bailiff." The declaration, after stating an escape, averred that it happened " by the default of the de- fendant W T, and not otherwise, he, the defendant W T, then being the bailiff of the plaintiffs as such sheriff." The defendants craved oyer, and after setting out the deed, pleaded that the default " was not the default of him, the said W T, as such bailiff of the plaintiffs " : — Held, that the plea was bad for ambiguity; but senible, that the declaration would have been bad on special demurrer, for not shewing how the escape was the default of W T. CvMtt v. Thompson, 20 Law J. Rep. (n.s.) Exch. 49; 5 Exch. Rep. 811. (c) When affected or discharged hy Ohamge of Circvmstamces or Parties, A special overseer appointed under the 7 Will. 4. & 1 Vict. u. 81. 0. 3. to make, levy, or collect borough -rates in a parish lying partly within and partly without a borough, is not an annual officer, nor is he such an officer as could be appointed under the 5 & 6 Will. 4. c. 76. s. 58. The Mayor,Sc. of Birmingham v. Wright, 20 Law J. Rep. (N.s.) Q.B. 214; 16 Q.B. Rep. 623. Therefore, where the defendants had entered into a bond as surety for W R, and the condition of the bond recited that W R had been appointed to act as overseer for making, &c. borough-rates within part of the parish of A, situate within a borough, during the pleasure of the council, and the bond was conditioned for the due performance of his duties by W R during such time as he should act as such overseer; and in an action upon the bond the defendants set out the bond and condition upon 112 BOND; (B) Liability of the Obiigoe. oyer, and pleaded that W R was duly appointed by the council to act as such overseer, subject to the pleasure of the said council, for the period of one year and no more, under and by virtue of the 7 Will. 4. & 1 Vict. c. 81, and alleged performance of the duties of the said office by W R during the period of one year for which he acted as such overseer : — Held (on demurrer to the replication), that the plea was no answer to the action. Ibid. The Municipal Corporation Act, 5 & 6 Will. 4. c. 76. 3. 58, directs the council of every borough every year to appoint a treasurer, and to take such security for the due execution of his office as they shall think proper. The treasurer, by section 60, is to account to the council, at such times during the continuance of his office, or within three months after the expiration of his office, and in such manner as the council shall direct. By the 5 & 6 Vict. u. 89. 8. 6, the treasurer, instead of being appointed annually, is to hold hie office during the pleasure of the council, but no alteration is thereby made in the nature or duties of the office. M had, before the 6 & 7 Vict. c. 89, been elected treasurer of a borough for a year, and was ordered by the council to render an account of cash in his possession at every quar- terly and adjourned meeting, and at any special meeting, if required. The defendant entered into a bond as surety for the due performance of his duty by M " during the whole time of his continuing in the said office in consequence of the said election, or under any annual or other future elections of the said council:'' — Held, first, that the council might legally take such security to remain in force under any number of successive elections ; and, secondly, that the liability of the surety was by the terms of the bond extended to a continuance in office by M under an election during the pleasure of the council ; and that there was no alteration in the time or mode of accounting, by reason of his hold- ing the office for an indefinite period, which would discharge the surety. Berwick-v/pon- Tweed (Mayor ^ &c.) V. Oswald; the Same v. Benton; the Samie v. BoUe, 22 Law J. Rep. (n.s.) Q.B. 129; 1 E. & B. 295. The Municipal Corporation Act, 6 & 6 Will. 4. c. 76. s. 68, provides that the council of every borough shall, in every year, appoint a treasurer of the bo- rough, and shall take such security for the due execution of his office as they shall think proper, and in case of a vacancy, by death, resignation, re- moval, or otherwise, may appoint another person in his place. By section 60. the treasurer shall, at such times during the continuance of his office, or within three months after the expiration of it, and in such manner as the council shall direct, duly account for money received. By the statute 6 & 7 Vict. c. 89. s. 6. the above-mentioned provision, that the council shall, in every year, elect a trea- surer, is repealed, and it is enacted, that the coun- cil of every borough shall, on the 9th of November next after the passing of the act, appoint a trea- surer, who shall thenceforth hold his office during the pleasure of the council for the time being ; and in case of a vacancy, the council shall, within twenty-one days after, appoint a fresh one. Sub- sequent to the month of November 1841, M was appointed treasurer for the remainder of the year, to November 1842, if the council should so long please. On the 9th of November 1842, he was elected treasurer again, and continued in office for the year, until the 9th of November 1843, when he was again elected to be treasurer (the statute 6 & 7 Vict. c. 89. having then come into operation) during the pleasure of the council for the time being. He remained treasurer down to June 1848. On his first election he entered into a bond, with sureties, who bound themselves for his duly ac- counting for and due payment of monies received " during the whole time of his continuing in the said office, in consequence of the said election, or under any annual or other future election." In 1848, when he ceased to be treasurer, there were certain sums which he had received since the 9th of November 1843, and which he had not duly paid over : Held, in an action against a surety, by a majority of the Court, that the change made by the statute of Victoria, in the tenure of the office from that of an annual appointment to an appoint- ment during pleasure, did not exempt the sureties from liability, as the duties were not altered, and they had agreed to be bound for his conduct as treasurer, not only during his first election, but under any annual or other future election. Oswald V. the Mayor, &c. of Berwick-upon-Tweed, 23 Law J. Rep. (N.S.) (i.B. 321; 3 E. & B. 653. R, in 1841, by a resolution of vestry, was ap- pointed permanent assistant overseer, at the annual salary of \Sl. In 1846 the vestry resolved that R continue his office, giving security. Accordingly a bond was immediately entered into by R, and two sureties, conditioned that R should from time to time and at all times thereafter, during the continuance of his said appointment, duly perform his duties ; and a warrant of appointment of R as assistant overseer was executed a few days afterwards by two magis- trates. R performed the duties of assistant overseer from 1841 to 1861 ; but the duties having been re- duced, in consequence among other things of the appointment of a relieving officer, the vestry, by R's consent, in 1851 came to a resolution that R should continue the assistant overseer's office at a salary of 14/. per annum from year to year, unless he received proper notice from the inhabitants. R after this served the office for some months, but subsequently resigned, and was found in debt to the parish : — Held, that the resolution of 1 851 did not revoke R's former appointment, but that subsequently to it he held the old office at a reduced salary ; consequently, that the liability of the sureties continued. Fraik V. EdAna/rds, 22 Law J. Rep. (n.s.) Exch. 42 ; 8 Exch. Rep. 214. The defendant, by bond, became surety for the honesty and good conduct of a clerk to the Eastern Union Railway Company. That company after- wards, by act of parliament, became amalgamated with the Ipswich and Bury Railway Company, under the name of the Eastern Union Railway Company, the present plaintiffs. By the 10th section of the Amalgamating Act, "all conveyances, contracts, agreements, mortgages, hands, covenants, and secu- rities made or entered into before the granting of such certificate to, with, in favour of, or by or for the dissolved companies, or either of them, or any person duly authorized on their behalf, shall, imme- diately after the granting of such certificate, be and remain as good, valid and eflectual in favour of, and BOND ; (B) Liability of the Obligor. 113 against, and with reference to the new company, and may be proceeded on and enforced in the same man- ner to all intents and purposes as if the last-men- tioned company had been a party to and executed the same, or had been named or referred to therein instead of the persons, company or party actually named therein respectively" : — Held, that the de- fendant, the surety, was liable to the plaintiffs, the amalgamated company, in respect of a breach of the bond committed by the clerk after the amalga- mation. Eastern Union Sail. Co. v. Cochrane, 23 Law J. Rep. (n.s.) Exch. 61; 9 Exch. Eep. 197. By a resolution of a vestry duly held on the 27th of March 1845, R L was nominated and elected assistant overseer, the salary being understood to be 271. a year with extras, but the resolution did not specify the salary. On the 25th of April 1845 two sureties were proposed to the vestry and accepted, and, on the 9th of May they executed the usual bond for the faithful performance by R L of his duties as assistant overseer. On the 19th of March 1846 the vestry resolved " that the permanent over- seer's salary," meaning the salary of R L, should be raised from 271. to 35i a year, including all other extras. On the 2Sth of June 1846 two Justices signed the warrant of appointment, which recited that R L had been appointed on the 1 9th of March 1846 :_Held, per Pollock, C.B., Parhe, B. and Alderson, B., that B L was not duly appointed assistant overseer, no appointment having been made pursuant to the resolution of the 27th of March 1845, and therefore the sureties wer6 not liable for his breach of the conditions of the bond — Ma/rtin, B. dissentiemte. ffolland v. Lea, 23 Law J. Rep. (n.s.) Exch. 122 ; 9 Exch. Rep. 430. A bond was entered into in January 1851 by the defendant and others severally to the N.-W. Rail- way Company. The condition recited that the company had agreed to appoint L as their coal agent, for the purpose of selling coal for them, at a salary of 1001. per annum, on his finding sureties for his duly accounting and his honest conduct during the time of his continuance in such coal agency; and then stated that if L should from time to time and at all times duly account and pay over the monies received, the obligation should be void : Provided, that each of the sureties should be liable only for 501. and should be at liberty to put an end to his liability on the bond on ' giving the railway company six months' notice in writing. On the execution of the bond, L entered upon his duties as coal agent, and continued therein at the fixed salary until May 1851, when it was agreed between L and the company that instead of the fixed salary of lOOl. a year L should have a commission of 6d. per ton on all the coal for which he should get orders. L after this performed the same duties as before until the autumn of ] 852, receiving or being allowed the commission, which was calculated to be, and in fact was, larger in amount than the fixed salary. The defendant never gave any notice to determine his liability. L afterwards became indebted to the com- pany for sums which he did not pay over. In an action against the defendant, as surety, it was held, that the agreement between him and the company was that he would be liable as surety so long as L continued coal agent at the specified fixed salary, and therefore that the change in the mode of remu- DiOEST, 1850—1855. neration relieved him ftom responsibility. NortJi- Weatem Rail. Co. v. Whiwray, 23 Law J. Eep. (n.s.) Exch. 261 ; 10 Exch. Rep. 77. The acceptance of the oiEce of overseer does not operate as a resignation of the ofiice of assistant overseer, under 69 Geo. 3. c. 12. And even assuming that those two oifices are incompatible, where such assistant overseer continues to perform the duties of assistant overseer after his appointment as overseer, and is guilty of defalcations, the sureties to the bond taken under the provisions of that statute are liable. Worth V. Newton, 23 Law J. Rep. (n.s.) Exch. 338; 10 Exch. Rep. 247. Semhle — that the offices of overseer and assistant overseer are not necessarily incompatible. Ibid. Declaration on a bond. Plea setting out the bond and condition, which, after reciting that E J had been appointed clerk to the Torquay Gas Com- pany, and superintendent and inspector of the works and property of the said company, and that upon such appointment it was agreed that the said E J and his co-obligors as sureties for him, should enter into such bond for the due execution of his said office, stated as the condition of the bond, that the said E J should " from time to time, and at all times so long as he shall continue to hold the said office or employment," duly and faithfully account for all sums of money received by him by virtue or in execution of his said office or employment, &c. Averment, that the appointment of E J to the oflSce and employment mentioned in the condition was for one year and no longer, and that he did well and truly perform all that the conditions of the said bond required. Replication that E J, with the assent of the other defendant and the company, continued in the said office and employment aftei: the expiration of the year in the plea mentioned for a long period of time, and during such period omitted and neglected to account ; — Held, upon demurrer, that the averment in the plea of the time for which the appointment to the office was made, had the same effect as if it had been recited in the condition of the bond, and that, in accordance with previous authorities, the liability of the sureties did not continue beyond the period of one year, and that the plea, therefore, was a good answer to the action. Kitson v. Julian, 24 Law J. Rep. (n.s.) aB. 202; 4 E, & B. 854. (d) When discharged ly Payment. To debt upon bond, the defendant may plead as to part, payment in satisfaction post diem,, under 4 & 5 Ann. c. 16. s. 12. Busbandv. Davis, 20 Law J. Rep. (n.s.) C.P. 118; 10 Com. B. Rep. 645. Payment to one of two trustees binds both. Ibid. Debt on bond in the penal sum of 2,800^. First plea : the defendant craved oyer of the bond, by which it appeared that J O and the defendant and MAN were jointly and severally bound to the plaintiff in 2,800/. The condition, as set out on oyer, was for payment of \,iOOl. by the defendant to the plaintiff on the ]2th of August 1851. There was also a memorandum on the bond that the \,iOOl. secured by the bond was the same sum as was men- tioned in a warrant of attorney given by J O to the plaintiff, upon which judgment was intended to be entered up. Averment, that J did, after the said 12th of August, and before action, pay the plaintiff Q 114 BOND; (B) Liability or the Obligob. 1,400Z. and^inferebt. Second plea, that the plaintiff impleaded [J O for the monies in the declaration mentioned and in respect of the bond, and obtained judgment for 2,800;. ; that the sheriff upon a fi.fa. sued out thereon, and indorsed to levy 1,417^. \1s.%d.^ took goods of J O of that amount, and thereout paid the plaintiff. Third plea, that J executed a w£irrant of attorney for 2,800^. with a defeasance; that the warrant was given for securing payment of 1,400/. to the plaintiff, and as a further security to him for the 1,4001 along with the bond; that the plaintiff impleaded J O for the detention of the sum of 2,800?. in the bond and warrant of attorney men- tioned, recovered 2,800^. and sued out a fi. fa. ; that J O was a trader and liable to the bankrupt laws ; that the plaintiff negligently omitted to file the warrant of attorney; that 1,417/. 17*. 8rf. was levied out of the goods of J O and paid to the plaintiff in satisfaction of his debt; that the plaintiff thereby suspended the right of action against J O and precluded himself and the defendant from suing J O, whereby the debt as regarded the defendant was extinguished. The plaintiff demurred to the second plea, and also replied to the same, that the warrant of attorney became fraudulent and void as against the a^ignees, whereby the plaintiff was obliged to pay back to them the debt and damages paid to him. Similar replications were pleaded to the first and third pleas : — Held, on demurrer to the pleas and replications, first, that the levy under the execution did not amount to payment post diem within the statute of Anne ; secondly, that the levy of the sum of 1,400/. was no answer to an action at law on the bond for the penal sum of 2,800(. Parker v. Waison, 22 Law J. Eep. (n.s,) Exch. 167; 8 Exch. Rep. 404 Held, also, that the plaintiff was entitled to judg- ment on the several demurrers. Ibid. (e) Discharge of, by Operation of the Statute of Limitations. Debt on bond, dated the 5th of December 1812 : the condition of which recited that J B had agreed to advance T W the produce of the sale of 877/. 4s. Irf., S/. per cent, stock, without any advantage over that he would have been entitled to if Ihe stock con- tinued in his own name in the books of the Bank of England. That J Bsold the stock and paid the pro- duce, 729/. 4s., to J B, and that it had been agreed between them that the same or a like sum of 877/. 4s. \d., 51. per cent, stock, should be replaced and transferred to .1 B. The condition then stated, that if T \V, before the Sth of June then next ensuing, purchased the said amount of stock, and transferred the same to J B, and paid to J B in lieu of the divi- dends thereof such sum as J B would have been en- titled to receive for the dividends of the same in case the same had continued in his name, at such time and times, in such shares and proportions, and in such manner as the same dividends would have been payable to him if the same had not been sold, then the bond was to be void; otherwise to remain in force. Breach, first, that J W did not before the said Sth of June, nor at any time since, purchase the said amount of stock and transfer the same to J B or the plaintiff as administrator. Secondly, that the dividends of the said stock, if the same had continued standing in the name of J B, would have been payable half-yearly after the date of the said bond, and the first and only one of such dividends before the said Sth of June would have been payable on the Sth of January 1813, that J B on the- 11th of September 1824 died, and that if tho said stock had continued standing in J B's name, or the plaintiff as administrator, a sum, to wit, &c. would have been payable half-yearly as dividends, and the money payable in lieu of such dividends, and be- coming due after J B's death, amounted to a large sum, to wit, &c. And although the said stock had not been transferred into the name of J B or the plaintiff, yet the said T W and the defendants had wholly failed to pay the sums which became due in lieu of the said several dividends. Plea, that the causes of action did not accrue at any time within twenty years next before the commencement of the suit. Eeplication, so far as related to the first breach, that whilst the stock remained untransferred and a certain sum, to wit, &c. was due, in lieu of the divi- dends which J A would have been entitled to receive, to wit, on the 10th of September 1824, T W made an acknowledgment that the said stock remained un- transferred, contrary to the said condition, and was due thereon by T W making to J satisfaction on account of part of the said sum of money, to wit, of 10/., and that the action was brought within twenty years next after such acknowledgment; and so far as related to the other causes of action in the decla- ration mentioned, that the said causes of action did accrue within twenty years next before the com- mencement of the suit. Rejoinder as to the first part of the replication, a traverse of the bringing of the action within twenty years, mode et formd. An agreement between J B and T W was proved, by which J B was to be boarded and lodged by T W for half-a-guinea a week, and that this weekly sum should go and be accepted in part satisfaction of the divi- dends of the stock due from T W, and that they were to have a settlement every six months. This agree- ment appeared to have been acted upon until J B's death, on the 11th of September 1824, down to which time he boarded and lodged with T W, but no settlement had taken place between them, although repeatedly asked for by J B; — Held, first, that supposing the issue raised by the rejoinder cast upon the plaintiff the buithen of proving an ac- knowledgment within twenty years next before the commencement of the action, the above was sufficient evidence to entitle the plaintiff to the ver- dict on that issue, as also on the second issue raised by the replication. Secondly, that the bond in addition was not within the Sth section of the 3 & 4 Will. 4. c. 42. That the replication, therefore, as to the first breach, set up no answer in law to the plea, and the plaintiff, consequently, was not entitled to any damages on that breach ; but as to the second breach, thirdly, that the part of the condition which stipulated for the payment from time to time of such sums as would have been payable by way of divi- dends, if the stock had continued standing in J B's name, a cause of action still existed, and, therefore, the plaintiff was entitled to judgment; the damages to be confined to those claimed in the second breach. Blair v, Ormond, 20 Law J. Rep. (N.s.) Q.B. 444; 17 Q.B. Rep. 423. Declaration in the common form on an annuity bond, dated the Sth of June 1828. Pleas, the Statute BOND; (D) Action os. 115 of Limitations, and the bankruptcy of the defendant after the making of the bond and the accruing of the causes of action in the declaration mentioned, and before the commencement of the action. Eeplica- tion joining issue on the latter plea, and as to the former, that the said causes of action did accrue to the plaintiff within twenty years next before the commencement of the action (setting out the bond and condition, and assigning as a breach of the con- dition, the non-payment of BOl. for two years and a half arrears of the annuity). The bond was a joint and several bond of the defendant and M, and was conditioned (after reciting that M had agreed with the plaintiff for the sale of an annuity of 202. to be paid to the plaintiff, his executors, &c., during the joint and several lives of the plaintiff and his wife, for the sum of 1507., and that the defendant at the request of M. had assented to join in and execute the bond for securing the due and regular payment of the annuity and the receipt by M of the said sum of ISOl.) for the due payment by M or the defendant, their or either of their heirs, &c. of the said annuity, by two equal half-yearly payments on the 9th_of December and the 9th of June in every year, during the joint and several lives of the plaintiff and his wife, and a proportionate part of the half-yearly pay- ment of such annuity in the event of the death of the survivor between the half-yearly days of payment. On the trial, it was proved that the defendant had become a bankrupt In 1836; that the defendant had, down to 1848, paid the half-yearly instalments of the annuity, but on no occasion, until after the days of payment stated in the condition ; so that there had been breaches of the bond before the defendant's bankruptcy, and, it appeared also, more than twenty years before the commencement of the action ; and that arrears were then due in respect of breaches committed since 1848 : — Held, that a new cause of action arose with each successive breach of the con- dition, and that by proof at the trial of breaches committed within twenty years, the plaintiff was en- titled to the verdict upon the issue raised by the plea of the Statute of Limitations. Amott v. jfolden, 22 Law J. Hep. (N.s.) Q-B. 14; 18 Q.B. Eep. 693. (C) Belease. A being in debt to B, C and D, three sisters, who were his near relations, partly on his own account and partly as executor of his father, executed to them a bond for SOOl At the time of the giving of the bond A objected to give it, and agreed to do so only on a verbal representation that it was not in- tended to be enforced until B, C and D should come to want, an event which did not happen. The bond remained in the hands of the three till the death of B, and after her death in the hands of the survivors, and after the death of C in the hands of D, whose property (by mutual arrangements) it was at the time of her death. On the bond was found the following indorsement — ^"This bond is never to appear against A. Witness C D." This was dated eleven years after the date of the bond. It was not made clear that C's name was written by herself; it was said that D had written it. It was, however, proved that if D had written it she did so with the authority of C:— Held, that, without say- ing whether the indorsement amounted to a release, which was a legal question, there was an equity under the circumstances against enforcing the bond; that if put in suit the action would be restrained, and that there was nothing due on the bond to the estate of D. Mcyor v. Major, 1 Drew. 166. (D) Action on. (a) Payment into Cowrt. [See Hmland v. Davis, amte, (B) {d).'\ In an action on a bond money cannot be paid into court. The Bishop of London v. M'Nid, 23 Law J. Rep. (n.s.) Exch. 11. In an action on an administration bond, breaches were assigned in the declaration, and the defendant by way of plea set out the condition and paid money into court as to certain breaches, and as to the residue averred performance or excuse for non-per- formance :— Held, that the plaintiff was entitled to strike out the whole plea, and proceed to assess damages. Ibid. (6) Pleas. The Westminster Improvement Commissioners were authorized by several acts of parliament to borrow such sums of money as they should think necessary for the purposes of the act, and to give bonds for the same, and which bonds were assignable. In an action by the plaintiff, as transferee of one of such bonds, the condition of which recited that the defendants had, in pursuance of the said acts, bor- rowed of one T P 6,000i. for enabling them to carry the said acts into execution, the defendants pleaded that they did not borrow the said sum of the said T P, or any part thereof, for the purposes of the said acts, and that they were not authorized to make the said bond, and that the same was made contrary to the provisions of the said acts, of which the said T P and the plaintiff had notice at the time the bond was made and transferred to the plaintiff: — Held, upon general demurrer, that the plea was bad. Morton v. the Westminster Improvement Commissioners, 21 Law J. Kep. (n.s.) Exch. 297; 7 Exch. Rep. 780. The defendants also pleaded, that at and before the bond was made, certain persons, namely, C M and W M, were entitled to receive from the defen- dants certain bonds; that the said T P and others conspired fraudulently to procure for T P one of the said bonds to which the said C M and W M were entitled, and that by means of such conspiracy and fraud they procured the said C M and W M to au- thorize the defendants to give to the said T P one of the said bonds they were so entitled to; and that the bond sued upon was thereupon given to T P by the defendants, and that they the defendants had never borrowed any sum of money from the said T P, of all which premises the plaintiff at the time of the transfer to him of the said bond had notice : — Held, bad on general demurrer, because the defendants could not set up as a defence the fraud that had been committed upon C M and W M, by whose di- rections they had, in pursuance of their contract with them, given the bond to T P. Ibid. (c) Signing J'udgm.eKt for Want of Plea. The Lynn and Ely Railway Company having given a bond were afterwards by act of parliament amalgamated with certain other lines, under the ]16 BOND— BURIAL. name of the East Anglian Railway Company, to ■which all the liabilities of the Lynn and Ely Railway Company were transferred. To an action against the East Anglian Railway Company upon the bond, the defendants, after setting out the deed on oyer, pleaded as follows: "which being read and heard, the defendants say that the said writing obligatory is not their deed." The plaintiff having signed judg- ment as for want of a plea the Court refused a rule to set aside the judgment, there being no affidavit of merits. Selby v. the East Anglian Rail. Co., 21 Law J. Rep. (N.s.) Exch. 27; 2 L. M. & P. P.C. 595. BOUNDARIES. [See Commission to ascertain Bouhdaeies.] BRIDGE. Liability of Countt to repair. [See Mackinnon v. Penson, title Action, (A) (i).] The Isle of Wight is a division of the county of Southampton, but has no separate commission of the peace. Before 1842 all public bridges in the Isle of Wight not repairable by tenure were repaired either by the tithings in which they were situate, or by rates in the nature of county rates, levied on all the parishes in the island, under the following arrange- ment. The Isle of Wight, having been assessed to the general county rate, and appeals against such assessment having been made, in 1774 an arrange- ment was made, by an order of Quarter Sessions and by consent, fixing certain proportions to be paid by the parishes in the Isle of Wight towards the general county rate, but leaving the expense of bridges and houses of correction to be raised by a local rate ; " the said island being adjudged and declared not to be liable to pay to the county bridge rate or to the house of correction ; the Isle of Wight agreeing to erect and maintain houses of correction and bridges within the island at its own expense." Accordingly, from 1774 the practice was for the Quarter Sessions of the county, on the application of the Justices for the Isle of Wight division, to lay a rate, in the na- ture of a county rate, on every parish in the island for the repair of the bridges and bridewell in the island, and this local rate, and not the general county rate, was always expended in such repairs. In 1813 a local act of parliament passed, by which Commis- sioners were appointed for managing the roads and highways in the island, and which enacted that all bridges, &c. which had, previous to the passing of the act, been repaired by any tithings, &c., should for the future be repaired in the same manner and by such ways and means as other bridges, usually called county bridges, within the island, had been accustomed to be repaired : — Held, that all bridges which, at the time when the local act passed, were repairable by the tithings, were thenceforward re- pairable by the county generally; and that the con- ventional mode of assessing the island alone to a rate for the repairs of its bridges and bridewell under the arrangement of 1774 could not affect the legal liability of the county, or be any answer to an in- dictment against it for non-repair of such bridges. Her/ina v. tlie Midbiianis of the Covnty of South- ampton, 21 Law J. Rep. (n.s.) M.C. 201. A bridge in the Isle of Wight was, after the passing of the above local act, wholly rebuilt by order of the Justices for the island division out of the island rate before mentioned. The construction of the new bridge was materially different from, and it stood higher up the stream than, the former bridge. None of the forms required by the 43 Geo. 3. c. 49. were observed in building the new bridge: — Held, that the county remained liable to repair the new bridge. Ibid. A foot-bridge formed by three planks, about nine or ten feet long, and a hand-rail, which carries a public footpath over a small stream, is not such a bridge as the county ia bound to repair. Ibid, BUILDING ACT. [See Meteojolitan Building Act.] BUILDING SOCIETY. [See Feiendly and Benefit Societies.] BURIAL. [See 15 & 16 Vict. c. 85; 16 & 17 Vict. c. 134; 17 & 18 Vict. c. 87; 18 & 19 Vict.c. 128; 18 & 19 Vict. u. 105.] (A) Right of Burial. (B) BuEiAL Fees. (C) Rate fob enlarging Burial Geound. (A) Right of Burial. A parent is bound to provide christian burial for the body of a deceased child if he has the means ; but if he has not the means, though the body re- mains unburied and becomes a nuisance to the neighbourhood, he is not indictable for the nuisance, notwithstanding he could have obtained money for the burial expenses by way of loan from the poor law authorities of the parish, for he is not bound to incur a debt. Eegma v. Vann, 21 Law J. Rep. (n.s.) BLC. 89; 2 Den. C.C.R. 325. Semhle — that the parish officer would be liable for a nuisance in such case. Ibid, (B) Burial Fees. In 1823 a piece of ground, in the parish of St. M in L, was bought by subscription of the. inhabitants and conveyed to the Church Building Commissioners, who erected a chapel on a portion of it, and inclosed the remainder for a burial ground. The chapel and burial ground were consecrated in 1827. In 1828 an Order in Council was made, whereby, after re- citmg the 16th section of the 58 Geo. 3. c. 45, which empowers the Commissioners to divide populous parishes into two or more distinct and separate parishes; also reciting the 21st section of that statute, which empowers the Commissioners to divide popu- lous parishes into ecclesiastical districts ; also reciting that the Commissioners had made a representation to the Crown respecting the increase of population and insufficient church accommodation in the parish ; also reciting that it appeared to the Commissioners BURIAL-CANAIi AND CANAL COMPANY. 117 expedient that an ecolesiaBtical district should be as- Bigned to the new chapel under the provisions of the 59 Geo. 3. c. 134. s. 16; and that the consent of the bishop had been obtained: His Majesty ordered that the proposed division should be made and effected according to the provisions of the said acts. The boundaries of the district were duly enrolled under the 58 Geo. 3. c. 45. s. 22. No Order in Council was made respecting the performance of the offices of the church in the said chapel, or the appropria- tion of the fees payable in respect thereof, nor did the Commissioners make any otder as to whether the fees for burials, &c. were to be reserved to the in- cumbent of the parish, or assigned to the curate of the chapel, or whether burials, &o. should be per- formed in such chapel. In the year 1848, the cor- poration of L established a cemetery within the borough, under the provisions of the 11 Vict. c. ii., by which the burial service over deceased persona re- moved for interment in the cemetery was to be per- formed by, and the fees paid to, the incumbent who might have been required to perform the service, and would have been entitled to the fees, if the inter- ment had taken place in his parish or ecclesiastical district: — Held, that the Order in Council was made under the 58 Geo. 3. c. 45. s. 21, and not under the 59 Geo. 3. c. 143. s. 16; and that upon enrolment of the boundaries, the chapelry became a separate district parish for all ecclesiastical purposes; and that after the death of the then incumbent of the original parish, the curate of the district parish was entitled to the fees for burial, both in his parish and in re- spect of deceased persons taken from the parish to the cemetery for interment. Edgell v. Bumaby, 23 Law J. Eep. (n.s.) Exch. 65; 8 Exch. Rep. 788. (C) Rate fok enlarging Burial Ground. Where the churchwardens of a parish made a single rate for providing necessary additional burial ground for the parish, which could only be done (if at all) under the powers given by the Church Build- ing Acts, and also for draining and spouting a chapel in the parish, as at common law, it was held that the rate could not be enforced. Hegma v. Ahney, and the Ghurchwwrdens of Wliitwick v. Stimson, 2 3 Law J. Rep. (N.s.) M.C. 154; 3 E. & B. 779. Qucere whether there is any power to make a rate for enlarging or for purchasing a burial ground. Ibid. CAB. [See Hackney Carriage.] CANAL AND CANAL COMPANY. [Traffic on canals, see 17 & 18 Vict. c. 31. Rules and forms of proceeding against canal companies, see Reg. Gen. (Common Pleas), 18 Vict. 1855; 24 Law J. Rep. (n.s.) xiii. ; 15 Com. B. Rep. 473.] (A) Rights and Liabilities of the Company. (B) Compensation for Damage. (A) Rights and Liabilities of the Company. Ejectment to recover a portion of the land and banks of the Swansea Canal In 1779, P, being seised of the above-mentioned land, demised the same to M & Co. for sixty-five years. In 1793 the Swansea Canal Company was formed for making a canal, which was intended to pass, amongst other places, in part through the land in question, and they obtained an act for that purpose. In 1797 M & Co. and the Duke of B. widened a canal made by M & Co., and extended the same through part of the above land, which canal joined and formed a con- tinuation of the Swansea Canal. The powers for making a portion of the canal which passes through a portion of the lands sought to be recovered were obtained by the Duke of B. and M & Co. By that act it was enacted, sect. 47, that upon payment or tender of certain sums of money, adjudged by certain commissioners or assessed by juries, for the purchase of any such lands, &c., it should be lawful for the canal company to enter upon such lands, or before such payment or tender by leave of the owners and occupiers, and thereupon such lands shall be vested in such company. The lands sought to be recovered in this action formed part of the lands authorized to be taken by the canal act. No payment or satisfac- tion was made or agreed to be made to the owners of the lands, but everything was done by the Duke of B. with the full consent and approbation and in accordance with the wishes of such owners and pro- prietors. The defendant, in 1835, became the as- signee of the said Duke of B. One J C, in 1800, became the purchaser of the said lands, and the in- terest therein afterwards became vested in the lessors of the plaintiff at the expiration of the lease in 1845 : — Held, that the lessors of the plaintiff were entitled to recover possession of the lands. Doe d. Patrich T. Beaufort, 20 Law J. Rep. (n.s.) Exch. 251; 6 Exch. Rep. 498. The Trent and Mersey Navigation Company, by the 6 Geo. 3. c. 96, were empowered to make the canal and to purchase lands for the purpose of the navigation, and, by section 12, upon payment of the purchase-money, the fee simple of the lands was to be vested in the company " for the use of the said navigation, but to or for no other use or purpose whatsoever." By a subsequent act (37 Geo. 3. c. 36,) they were empowered to make a reservoir for the purpose of supplying the canal with water, and to purchase land for that purpose, and all the clauses, powers, &c. of the former act were extended to the making the reservoir. The canal acts con- tained various clauses reserving rights of fishery, &e. to the owners of the lands through which the canal and reservoir were made, and enabling them to use pleasure-boats thereon without paying toll, but pro- hibiting the passage of any boats carrying passengers or goods for hire upon the canal, except upon pay- ment of toll. The canal and reservoir, and all the rights, &c. of the canal company were subsequently vested in the defendants (the North Staffordshire Railway Company) by act of parliament, " in the same manner and to the same extent " as the canal company could have held, used, &c. the same, and all the powers, &c. of the canal acts were extended to the railway company. The canal company pur- chased from the plaintiff's ancestor, under the powers of their acts, the land upon which they made the reservoir, and took a conveyance of it in fee to a trustee for the company. Two questions being raised, first, whether the defendants could lawfully 118 CANAL AND CANAL COMPANY. let out boats for hire upon the reservoir ; and, secondly, whether they could lawfully use the reser- voir for any other purpose than for supplying the canal with water, — Held, per Lord Camplell, C.J., that under these statutes there was not an universal prohibition against the defendants using the reservoir for any other purpose, except that of feeding the canal; but that all uses of it, whether by pleasure- boats or otherwise, other than for the purposes of the navigation, whereby the grantor of the land, or his heirs or assigns, were prejudiced, was unlawfiil ; but that the plaintiff, not being a shareholder, could not rely upon the improper application of the corporate funds to this purpose. Per Coleridge, J. and Wightman, J., that the defendants could not law- fully let out pleasure-boats for hire upon the reser- voir, or use it for any other purposes of profit, except those contemplated by the statutes under which they were incorporated, as the land was vested in them for the use of the navigation, and for no other use or purpose whatsoever ; and also, because such use of the reservoir would derogate from the rights of adjacent landholders ; and, lastly, because it involved a disposition of the corporate funds to a purpose foreign to the object of their incorporation, and might be prejudicial to the shareholders. Per Erie, X, that the canal company and the defendants ac- quired by the conveyance of the land to them all the incidents to an estate in fee simple not expressly prohibited by their acts, with the specified duty superadded of using it for the purpose of the navi- gation, and of not using it for any purpose incon- sistent with that object ; and that, therefore, they might lawfully use the reservoir with pleasure-boats, or in any other manner which did not impede the performance of the statutory duty. Bostock v. North Staffordshire Sail. Co., 24 Law J. Rep. (n.s.) Q,B. 225 ; 4 E. & B. 798. (B) Compensation for Damage. The 1 Geo. 1. c. 24, by section 1, empowered cer- tain persons to make the river Kennet navigable, and to dig and cut through the banks of the said river, and to erect in the said river, and upon the lands adjoining, weirs, pens, dams, &c., and to do all mat- ters and things necessary for making, maintaining, or improving the said navigation, the said undertakers first giving satisfaction to the owners of such lands, weirs, &c. as should be digged, cut, or removed, or otherwise made use of, as the Commissioners named for the purpose should direct, in case the undertakers should not beforehand have agreed with the pro- prietors of such lands and hereditaments concerning the same. By section 2. Commissioners were ap- pointed to mediate between the undertakers and the owners of lands and hereditaments intended to be made use of, and to settle satisfaction for such por- tion of the lands as should be cut, digged, or made use of ; and a provision was made for filling up vacancies in the body of the Commissioners. By section 18. if any person should sustain damage in his mills by the owners of the navigation taking away or diverting the water, or any similar injury, the Commissioners should, by a jury impannelled as therein directed, assess such damage and award com- pensation to the party injured. The proprietors of the navigation obstructed the water fiowing to the defendant's mill by the erection of a dam, under the powers of the above act. AU the Commissioners appointed under the act had died, and there were no Commissioners in existence by whom compensation could be assessed : Held, under these circumstances, by Wightman, J., Erie, J. and Crompton, /., that the powers of the proprietors to raise weirs for the necessary purposes of the navigation did not cease by reason of the right of the mill-owner to recover compensation for consequential damages through the Commissioners being lost. Held , by Lord Campbell, C.J. , that the power to raise the weir and cut off the water flowing to the defendant's mill, could only be exercised during the continuance of the body of Commissioners, and that upon their extinction, the extraordinary powers of the proprietors ceased. The Eennelt amdAvon Canal Navigation v. Wither - ington, 21 Law J. Rep. (k.s.) Q,B. 419 ; 18 Q.B. Rep. S31. Qiusre whether any mode of recovering com- pensation by action or otherwise existed. Ibid. A company of proprietors, by agreement among themselves, made a navigable cut through certain lands on lease for sixty-five years. In 1794 an act of parliament was passed for making the Swansea Canal; the cut which was previously made was adopted as a part of the undertaking to be made by the act, but no steps were taken under the act, or otherwise, to purchase the reversionary interest of the lands comprised in the lease, and this part of the canal was held under the lease until its expiration on the 29th of September 1844. The estate of the original lessor, who was one of the projectors of the original cut, and consented to its being made, was afterwards sold, and was purchased by the ancestor of the defendants, who, upon the expiration of the lease, brought an action to recover the land, and ob- tained a verdict ; upon which the plaintiff, who was the proprietor of the canal, and who alone had the power of levying tolls under the Canal Act, filed this bill to restrain all further proceedings at law for the recovery of the lands, and to obtain a convey- ance to confirm his rights under the Swansea Canal Act, and to assure the possession of the canal to him upon payment of a compensation under the Canal Act, or that the defendants might be restrained from interfering with the plaintiff's right as an ease- ment, and from preventing him from maintaining or using the canal through the lands : — Held, that the original lessor had notice of the appropriation of the cut to the purposes of the canal ; and that he and those claiming under him- could not obtain posses- sion of the land covered by the canal, or interfere with its use ; that the purchase from the lessor was made with an impUed knowledge that the canal was to exist for ever, and consequently that the de- fendants could not prevent the use of the cut through the land; and that upon payment of a com- pensation, to be fixed by the Judge at chambers, as the powers in the Canal Act were defective, the de- fendants must convey their interest in the lands. The Duke of Beaufort v. Patrick, 22 Law J. Rep. (n.s.) Chanc. 489 ; 17 Beav. 60. The principle upon which such compensation will be fixed. Ibid. CAPIAS— CARRIER. 119 CAPIAS. [See Arrest — Execution — Sheriff.] CAEEIEB. [See Hackney Carriage — Ship and Shipping.] (A) Common Carriers. (a) Who are. ( 6 ) Beyond the Realm. (B) DnTT AND Liability op Carriers. (^a) As regards Passengers. (1) In general. (2) Personal Injury. (b) As regards Passengers' Luggage. {c) In respect of the Conveycmce of Goods, cfcc. (1) In general. (2) Under Notice or Special Contract. (3) Decla/ration of Nature and Value. (C) Charges for Caeriage of Goods. (D) Actions. (E) Damages recoverable. (A) Common Carriers. (a) Who are. If a person holds himself out to carry goods for every one as a business, and he thus carries from the wharves to the ships in harbour, he is a common carrier. The criterion is, whether he carries for par- ticular persons only, or whether he carries for every one. If he holds himself out to do it for every one who asks him, he is a common carrier ; but if he carries for particular persons only, that is matter of special contract. Ingate v. Christie, 3 Car. & K. 61. (V) Beyond the Realm. A common carrier from a place within to a place without the realm, is subject to the same liabilities at common law as a common carrier who carries only within the realm. Crouch v. the London and North-Western Rail. Co., 23 Law J. Eep. (n.s.) C.P. 73; 14 Com. B. Eep. 255. (B) Duty and Liability of Carriers. (a) As regards Passengers. (1) In general. The plaintiff, intending to go' to L and back by the defendants' railway, paid for and received from them the following ticket at B, and went to L with it : — " B to L and back. Excursion ticket. To return by the trains advertised for that purpose on any day not beyond fourteen days after date hereof." A morning and evening return excursion trains were advertised on the Saturdays, but they were not ad- vertised to go to B. On a Saturday morning within the fourteen days the plaintiff presented himself at the L station in time for the morning return train. It became full so that the plaintiff could not find room in it, and it would have been dangerous to have added other carriages to it. The company re- fused to let him go by an ordinary train, but kept him waiting until the evening return train, in which lie found a place. That train took him only to D, where it arrived on Sunday morning. No trains ran from D to B on Sundays. The line from D to B belonged not to the defendants, but to another com- pany. The plaintiff hired a carnage to take him from D to B, and brought an action to recover the expense from the defendants: — Held, that by the terms of the excursion ticket and advertisements the defendants contracted to carry the plaintiff back to B on any day within the fourteen days that he might choose, and by any of the advertised trains that he might select ; that not sending him by the morning train was a breach of contract, and that taking him only to D instead of to B without pre- vious notice was a second breach, and that conse- quently the action was maintainable. The Great Northern Rail. Co. v. Hawcroft, 21 Law J. Eep. (n.s.) Q.B. 178. A railway company were in the habit of allowing the reporters of a newspaper, when on duty, to travel free on their line. The reporter was supplied with a ticket from the company, made out in the name of an editor or other officer of the paper, and it pur- ported on its face not to be transferable. The plain- tiff, a reporter, acting bond fide and travelling on business of the newspaper, went to a station with such a ticket, and shewed it to the porter whose duty it was to examine tickets, who said it was all right, and placed him in a railway carriage. It did not appear that the porter knew him ; but it was shewn that on several occasions the plaintiff and other reporters had travelled with similar tickets, made out in the names of persons other than those who used them, and that the persons whose names were on the tickets were known to some of the officers and superintendents of the station : — Held, on an issue whether the plaintiff was lawfully in the carriage, that the Judge was not bound, as a matter of law, on the construction of the ticket, to say that the plaintiff was not there lawfully ; but that the evidence of the irregular use of the tickets being with the sanction of the superintendents was evidence for the jury, that the plaintiff was in the carriage with the licence of the company, and therefore law- fully. The Great Northern Rail. Co. v. Harrison, 23 Law J. Eep. (n.s.) Exch. 308; 10 Exch. Eep. 376. (2) Personal Injury. A declaration in case alleged that the mails from L to T were carried on the defendants' railway, pur- suant to the provisions of the 1 & 2 Vict. c. 98. That the plaintiif was an officer of the Post Office, whom the defendants had been reasonably required by the Postmaster General to take up and carry, and had taken up and were carrying as such officer, in and upon a carriage of the defendants, in which the said mails were being conveyed. That the plaintiff, as such officer, then was lawfully in and upon the said carriage, and that thereupon it became and was the duty of the defendants to use due and proper care and skill in and about the carrying and conveying the plaintiff. Breach, that the defendants omitted and neglected to use due and proper care and skill, and so negligently and unskilfully conducted them- selves in and about carrying and conveying the plain- tiff, and in conducting, managing, and directing the said carriage and the engine and other carriages, and the railway itself, that the said carriage sustained a 120 CARRIER; (B) DoiY anb Liabilitt. violent concussion, and the plaintiff was thereby greatly injured and prevented from attending to his business, &c. (alleging special damage) : — Held, upon demurrer, that a duty as alleged arose out of the obli- gation imposed upon the defendants by the 1 & 2 Vict. c. 98, and that the action was maintainable. CoUeft V. the London and North-Westei-n Bail. Co., 20 Law J.Eep. (N.s.) Q.B. 411; 16 QB. Rep. 984. A declaration against a railway company stated, that the plaintiff, at the request of the defendants, became a passenger in one of their trains to be car- ried from, &c. for reward to them, &c. ; that through the carelessness, negligence, and improper conduct of the defendants, the train in which the plaintiff was such passenger struck against another train, whereby the plaintiff was injured. At the trial, it appeared, that the train in question had been hired of the com- pany by a benefit society for an excursion, the tickets for which were sold and distributed by the treasurer of the society, from whom the plaintiff purchased one ; and that the accident occurred by the train, in which the plaintiff was, running against a train standing at the station, it being then dark: — Held, first, that the mere fact of the accident having oc- curred, was^iWmd facie evidence of negligence on the part of the defendants. Secondly, that there was evidence for the jury that the plaintiff was a passen- ger to be carried by the defendants. Skinner v. the London, Brighton and South Coast Sail. Co., & Exch. Rep. 787. Qucere — whether in an action against a railway company, as common carriers for hire, for negligence in managing their station, whereby a passenger was injured, it is a good defence that the passenger con- tributed to the injury by his own negligence. Martin V. the Great Nortliern Rail. Co., 24, Law J. Rep. (n.s.) C.P. 209; IS Com. B. Rep. 179. {b) As regards Passengers' Liiggage. A servant travelling with his master on a railway, may have an action in bis own name against the rail- way company for the loss of his luggage, although the master took and paid for his ticket. The liability of the railway company in such a case is independent of the contract. Marshall v. the York, Newcastle and Berwick Sail. Co., 21 Law J. Rep. (n.s.) C.P. 34; 11 Com. B. Rep. 655. A declaration stated that the defendant received the plaintiff and his luggage to be carried " for re- ward to the defendants in that behalf," and it was proved that the plaintiff's master paid his fare and took the ticket : — Held, that it was immaterial by whom the reward was to be paid, and that the allegation in the declaration was proved. Ibid. SemMe — that if the allegation aii to reward meant that it was to be paid by the plaintiff, and if that allegation had been material, the payment for and on behalf of the plaintiff by his master would have been a payment by him. Ibid. The plaintiff, previously to travelling by the de- fendants' railway, paid for and took a second-class ticket and delivered her luggage into the hands of one of the defendants' porters, and told him where she was going, and saw him label it. "When she got to her journey's end, her box was missing, and it appeared that it had been stolen. She sued the company in a county court for the value. The company, in their defence, relied on a bye-law made under the provisions of their private act as exempt- ing them from liability. The bye-law was in the following terms ; — " Every first-class passenger will be allowed 1121b., and every second-class passenger .56 lb. of luggage, free of charge; but the company ivill not be responsible for the care of the same un- less booked and paid for accordingly." It did not appear that the plaintiff knew of the bye-law, or that the bye- law had been put up at the stations as direct- ed by the act. The county court Judge found for the plaintiff for the full amount of the value of the lug- gage : — Held, on appeal, that there was evidence to support his decision. Tlie Great Western Sail. Co. V. Goodman, 21 Law J. Rep. (n.s.) C.P. 197; 12 Com. B. Rep. 313. If a passenger on a railway by a third-class par- liamentary train carry merchandise packed up with his personal luggage, the railway company are not responsible for the value of the merchandise if the luggage be lost from the train. But if the mer- chandise be so packed as to be obviously merchan- dise to the eye, and the railway company make no charge or special bargain for the carriage, they will be responsible for the loss. Great Northern Rail. Co. 1. Shepherd, 21 Law J. Rep. (n.s.) Exch, 114; 8 Exch. Rep. 30. And see s. P., on second argument of the same case, 21 Law J. Rep. (n.s.) Exch. 286. The rule that each passenger by a third-class parliamentary train may carry with him 661b. weight of luggage, permits a husband and wife travelling together to take 112 lb. weight of luggage between them. Ibid. A railway company, as common ceirriers of pas- sengers and their luggage, are bound, on the arrival of a train at the terminus of the journey, to deliver a passenger's luggage into a carriage to be conveyed from their station, if required so to do, and if such is their usual practice — affirming Richards v. the London and South Coast Bail. Co. Therefore, where a passenger on the arrival of the train got out of the railway carriage on to the platform with a part of his luggage, a small hand-bag, in his hand, which he gave to one of the company's porters to take to a cab, and the porter lost it, the company were held liable as for a non-delivery of the bag; it not being found by the jury that the passenger, by taking the bag into his own possession on the plat- form, had accepted that as a performance, of the company's contract to deliver, according to their usual practice, into a cab. Butcher v. the London and' Souths WesterA Sail. Co., 24 Law J. Rep. (n.s.) C.P. 137; 16 Com. B. Rep. 13. A section of the act which incorporated a railway company, enacted that, without extra charge, it shouH be lawful for every passenger travelling on the rail- way to take with him anicles of clothing not exceeil- ing forty pounds in weight and four cubic feet in dimensions, and that the company should be in no case responsible for any things whatsoever carried upon the railway with any passenger other than such passenger's articles of clothing not exceeding the weight and dimensions aforesaid. Provided that nothing therein contained should extend to make liable the company further than where, according to law, stage-coach proprietors and common carriers would be liable. Another section enabled the com- pany to make bye-laws for the good government of CARRIER; (B) DriY and Liability. 121 the affairs of the company, and for the management of the undertaking. The company made a bye-law that every first-class passenger should be allowed to carry 1 12 lb. of luggage free of charge, but that the company would not be responsible for the care of the same, unless booked and the carriage thereof paid for: Held, that the company had no power to make the bye-law, since it was in contravention of the first section. Williams v. the Great Western Sail. Co., 10 Exch. Rep. 16. (c) In respect of the Conveyance of Goods, &c. [As to railway traffic and the jurisdiction of the Court of Common Pleas, see 17 & 18 Vict. c. 31, and for forms of proceeding under that act, see Reg. Gen. (Common Pleas) Hil. term, 18 Vict., 18SS, 24 Law J. Rep. (n.s.) xiii; IS Com. B. Rep. 473.] (1) In general. The plaintiff delivered to the defendants, a rail- way company, certain goods to be carried, and took from them a receipt note which stated that the goods were to be conveyed by the company as below, and on the conditions stated on the other side. The note stated that Bristol was the station from which, and Paddington the station to which, the goods were to be conveyed, but below the name of the consignee (the plaintiff) was added in pencil his address at Brompton, which was beyond the imme- diate vicinity of the goods station at Paddington. The conditions stated, that goods addressed to con- signees resident beyond the immediate vicinity of the company's goods station would be forwarded by public carrier, or otherwise, as opportunity might offer; but that the delivery of the goods by the company would be considered as complete, and the responsibility of the . company cease, when such carriers received the goods, and that any money received by the company as payments for the con- veyance of goods by other carriers beyond their own railway, would be received as for the conve- nience of the consignors, to be paid to such other carriers, and not as a charge made by the company upon the goods as carriers beyond their own railway. Notice was also given in the conditions, that the company would not be responsible for any loss or damage to goods occurring beyond the limits of their railway. The goods in question arrived safely at Paddington, and were there delivered to a person appointed by the defendants to collect and deliver goods beyond the limits of the railway, and by the negligence of his servants they were damaged before they were delivered to the plaintiff at Brompton. The declaration alleged a delivery of the goods to be carried from Bristol to Brompton : — Held, a fatal variance, for that the contract with the defendants ceased upon the arrival of the goods at Paddington, and that the defendants were not liable for the sub- sequent damage. Fowles v. the Great Western Rail. Co., 22 Law J. Rep. (n.s.) Exch. 76; 7 Exch. Rep. 699. A package, containing goods and marked " Soot- thorn & Co. to the East India Docks, passenger- ship MeWowrne, Australia," was sent by the plain- tiffs to the Great Bridge Station of the defendants, the South Staffordshire Railway Company, to be taken to London for hire. By the practice of the South Staffordshire Company, goods delivered at DiQEST, 1850—1855. that station for London are conveyed by their line as far as Birmingham, and thence by the London and North- Western Railway. Before the goods in question arrived in London, one of the plaintiffs delivered to a clerk at the Euston Station of the London and North-Westem Railway a written order, directing that they should be forwarded to Ratcliffe Highway. The order was, however, not complied with; the goods were taken to ihe Mel- bowrne and carried to Australia, and lost to the plaintiffs : — Held, that the plaintiffs were entitled to countermand the directions originally given by them; that the clerk at the Euston Station was an agent of the defendants, having authority to receive the countermand ; and that the defendants were, therefore, liable for a loss occasioned by their non- compliance with the countermand. Scotthom v. the South Staffordshire Rail. Co., 22 Law J. Rep. (n.s.) Exch. 121 ; 8 Exch. Rep. 341. To an action against the defendants as common carriers for refusing to carry a package of the plain- tiff, the defendants pleaded that when the package was tendered they requested the plaintiff to inform them of its contents, and that the plaintiff refused to do so ; wherefore, and because the defendants did not know what the package contained, they refiised to receive and carry it : — Held, a bad plea ; for that a carrier has no general right, in every case and under all circumstances, to require to be informed of the contents of packages tendered to him to be carried. Crouch v. the London a/nd North- Western Rail. Co., 23 Law J. Rep. (n.s.) C.P. 73; 14 Com. B. Rep. 255. The defendants, as common carriers, in their or- dinary course of dealing with the public, were in the habit of carrying packed parcels : — Held, that they were bound to carry packed parcels for the plaintiff. Ibid. (2) Under Notice or Special Contract. A declaration against a railway company stated that the plaintiffs, at the defendants' request, deli- vered, and the defendants received, certain horses to be carried and conveyed for the plaintiffs by the de- fendants, in their carriages upon and along their railway, for reward to them in that behalf, from H to S; that after such delivery and acceptance the said horses were placed in certain carriages of the de- fendants to be so carried and conveyed ; that after the said horses had left H, and whilst they were being conveyed along the railway, and whilst the said carrriages and the locomotive power thereof were under the management of the defendants, one of the wheels of the said carriages caught fire, of which the defendants had due notice, and were afterwards at a convenient time and place, to wit, at the next station, requested by the plaintiffs not to persist in conveying the said horses in the said car- riage further, which the defendants refused to do, and in spite of such request did continue to convey the said horses in the said carriage ; that afterwards the wheel again took fire by and for want of due precaution against friction, and in consequence thereof the said carriage was thrown out of its proper position on the railway, and the said horses injured. Plea, amongst others, traversing the deli- very and acceptance of the said horses to be carried modo etformd. At the trial, the defendants put jn R 122 CARRIER; (B) Duty ahd Liabiiitt. evidence a ticket signed by one of the plaintiffs on the occasion of the horses being received and placed upon the railway, in which was a memorandum stating that the ticket was issued subject to the owner undertaking all risk of injury by conveyance and other contingencies, and his seeing to the effi- ciency of the carriage before the horses were put therein, the charge being for the use of the carriages and locomotive power only; and that the company would not be responsible for any alleged defects in their carriages or trucks, unless complained of at the time of booking, or before the same left the station, nor for any damage whatever to horses, &c. travelling upon their railway in their vehicles: — Held, that the special terms of the memorandum disproved the bailment alleged in the declaration, which was ma- terial to the breach, and therefore that the defen- dants were entitled to the verdict on the above plea. Austin V. the Manchester, Sheffield, and LincoTmsTiire Rail. Co., 20 Law J. Rep. (n.s.) Q.B. 440; 16 Q.B. Eep. 600. The plaintiff, who had some cattle conveyed by a railway company, received for them a ticket, which he signed, containing the terms on which the railway company carried the cattle. At the foot of the ticket there was a clause: "N.B This ticket is issued subject to the owner undertaking all risks of conveyance whatever, as the company will not be liable for any injury or damage howsoever caused, and occurring to live stock of any description travelling upon the L. and Y. Railway, or in their vehicles." The plaintiff saw the cattle put into the truck. During the journey some of the cattle got alarmed, and broke out of the truck and were injured. The truck was so defectively constructed as to be unfit and unsafe for the conveyance of cattle : — Held, that there was no implied stipulation that the truck should he fit for the conveyance of cattle ; and that the company were protected by the terms of the ticket from liability to the plaintiff for the damage to the cattle. Chippendale v. the Za/ncashire and TorhsMre Sail. Co., 21 Law J. Eep. (n.s.) Q,B. 22. The respondent took a horse to a station on the railway of the appellants, who were common carriers of horses, to be carried to a distance along the line. After paying the charge for the carriage, he signed a ticket produced by the company's clerk, which stated : " This ticket is issued subject to the owner's undertaking to bear all risk of injury by conveyance and other contingencies," &c. " The company will not be responsible," &c. "for any damages, however caused, to horses," &c. " travelling upon their rail- way or in their vehicles." The horse was injured during the journey : — Held, that this ticket was not a mere notice which would be void under section 4, of the Carriers Act, 11 Geo. 4. & 1 Will. 4. c. 68, but contained the terms of a special agreement be- tween the respondent and the company, which was valid under section 6. of that statute; and that, con- sequently, the company were protected by its terms from any liability in respect of the injury to the ani- mal. Tlie Great Northern Rail. Co. v. MorviUe, 21 Law J. Rep. (n.s.) CtB. 319. A railway company letting trucks forliire for the conveyance of horses, delivered to the owner of the horses a ticket, in which it was stated that the owners were to undertake all risks of injury by con- veyance and other contingencies, and further stipu- lated that the company would not be liable for any damages, however caused, to horses or cattle: — Held, that the owner of the horses could not recover for damage done to them through the breaking of an axle, which was attributable to the culpable negligence of the company's servants. AvMim v. the Manchester, Sheffield, and Lincolnshire Rail. Co., 21 Law J. Bep. (n.s.) C.P. 179; 10 Com. B. Rep. 454. The plaintiff being the owner of a horse, delivered it to the defendants, a railway company, to be carried on their railway, subject to conditions which stated that the owners undertook all risks of conveyance whatsoever, as the company would not be respon- sible for any injury or damage, howsoever caused, occurring to live stock of any description travelling on the railway. The horse having been injured by the horsebox being propelled against some trucks through the gross negligence of the company, — Held, hcesitante Piatt, B., that the company under the terms of the contract were not responsible for the injury. Carr v. the Lancashire and Yorkshire Rail. Co., 21 Law J. Rep. (n.s.) Exch. 261; 7 Exch. Rep. 707. Qucere — whether the company would have been responsible if the horse had been stolen. Ibid. The York and North Midland Railway Company issued printed notices, stating that fish would be conveyed at reduced rates from S upon the condi- tion, amongst others, that the company was not to be responsible for the delivery of fish in any certain or reasonable time nor in time for any market, nor for any loss or damage arising from any delay or stoppage, nor were they to be required to carry by any particular trains. The notice also stated that the station clerk or servants of the company had no authority to alter or vary the conditions in the notice. The plaintiff, a fish-dealer at S, sued the company, as common carriers, for loss occasioned by delay in delivery of fish forwarded by the defendants' railway, after he had been served with a copy of the notice. At the time of delivery of the fish at the company's station at S, the plaintiff objected to the station- master that the notice was of no use and not binding upon him. The learned Judge at the trial left to the jury the questions of whether or not the notice had been served upon the plaintiff, and whether a special contract existed between the plaintiff and the company for the carriage of the fish upon the terms in the notice ; and he directed them that, if, being served with the notice, the plaintiff afterwards for- warded the fish, they ought to infer an agreement on the plaintiff's part to such terms, unless there appeared an unambiguous refusal by the plaintiff to be bound by the notice, and an acquiescence by the company in that refusal; and that it was to be ob- served, that the station-master had no authority to alter or vary the notice. The jury found a verdict for the defendants : — Held, that the direction was right, and that the jury were warranted in inferring a special contract to carry the fish upon the con- ditions stated in the notice; the plaintiff's objections to the statioii-master being of no avail whatever. Pleld, also, that the 4th section of the Carriers Act, 11 Geo. 4. & 1 Will. 4. c. 68, did not invalidate a contract so made. Walker v. the York and North Midland Rail. Co., 23 Law J. Rep. (n.s.) Q.B. 73 ; 2 E. & B. 750 ; 3 Car. & K. 279. CARRIER; (B) Duty anb Liability. 123 A took some cattle to a railway station to be car- ried along the railway. He hired a truck for the cattle, paid for their carriage, and thereupon re- ceiyed from the railway clerk a ticket, which con- tained terms exonerating the railway company from liability in case of injury to the animals or delay in the delivery. In an action by A against the com- pany for an injury to the animals and delay in delivering them, — Held, that on these facts the Judge who tried the cause was guilty of a misdirec- tion in leaving it to the jury to say whether the rail- way company were common carriers of cattle for hire, and whether they received the plaintiff 's cattle for carriage as common carriers for hire, or whether they received them under a special contract on the terms contained in the ticket; as there was no evi- dence of the company beiog common carriers of cattle for hire, nor of any other contract but that contained io the ticket, and that he ought to have told the jury that there was either a special contract or no contract at all. TorJc, Newcastle amd Berwick SaUway v. Crisp, 23 Law J. Rep. (n.s.) C.P. 125; 14 Com. B. Rep. 527. To an action against the defendants as common carriers for not delivering " within a reasonable time" pigs of the plaintiff, received by them to be carried from S to B, the defendants pleaded not guilty; and that they received the pigs subject to a contract with the plaintiff, that they would not be responsible for the delivery of the pigs " within any certain or definite time, nor in time for any particular market." At the trial the special contract was proved; and evidence was given that the pigs were carried from S and deUvered at B as expeditiously as the defen- dants' arrangements for the carriage of cattle would admit of, and the Judge, no objection being made by the plaintiff's counsel, nonsuited the plaintiff. The plaintiff moved to set aside the nonsuit and for a new trial, on the ground that the evidence as to the delivery within a reasonable time ought to have been left to the jury; but, inasmuch as he had not insisted at the trial upon having the evidence left to the jury, and as the .judge ought, as matter of law, to have directed the verdict to be entered for the defendants upon the plea setting up the special con- tract, the Court refused to disturb the nonsuit. Hughes v. the Great Western Rail. Co., 23 Law J, Rep. (N.S.) C.P. 153 ; 14 Com. B. Rep. 637. The course of business as to carrying pigs by a railway from H to L, which the plaintiff S well knew, was that on the delivery of the pigs, the porter who received them gave the drover of the owner a consignment note, which was signed both by the drover and the porter; that the drover then presented the consignment note to a clerk, who gave him a duplicate of a cattle note, to be presented on the delivery of the pigs at L. In the consignment note there was a notice that the company would not be liable for any articles unless they were signed for by their clerks or agents. S, after having delivered a large number of pigs in the usual manner, sent six more to the station by X, who was going to take some of his own. At the station, X got the usual notes for his own pigs, and told M, a porter, that the six pigs belonged to S, and M said that he would take care of them; but no consignment note was made out or signed. The pigs were never delivered : —Held, in an action brought by S against the rail- way company for not delivering the pigs, that he could not recover, as there was no evidence that M had any authority to contract for carrying the pigs, except in the usual manner, or that he held himself out as having such authority. Slim v. the Great Northern Mil. Co., 23 Law J. Rep. (n.s.) C.P. 166; 14 Com. B. Rep. 647. (3) Declaration of Nature and Value. [See Stoessiger v. Soath-Bastern Bail. Co., title Bills and Notes.] All persons sending packages by a carrier, con- taining valuable goods of the description and amount specified in the statute 1 Will. 4. c. 68, are bound, in order to fix the carrier with responsibility for such articles in case of loss or injury, to make a declara- tion of their nature and value at the time that they are delivered to be carried, whether the delivery be at the office, warehouse, or receiving house of the carrier, or to his servant on the road, or at any other place. Baxendale v. Hart, 21 Law J. Rep. (s.s.) Exch. 123; 6 Exch. Rep. 769: reversing j?ar« v. Baxendale, 20 Law J. Rep. (n.s.) Exch. 338 ; 6 Exch. Rep. 769. The Carriers Act, 11 Geo. 4. & 1 Will. 4. c. 68. s. 1, does not protect carriers in all cases where the owner of the article sustains damage from the neg- lect of the carrier, but the loss there referred to is confined to those cases where the article is abstracted or lost from the personal care of the carrier. A plea, therefore, alleging want of notice under the Carriers Act, is no answer to a declaration against a railway company for breach of contract, in not safely delivering the plaintiff's luggage on the termination of a journey, averring that by the carelessness of the defendants it became wholly lost to the plaintiff, and the plaintiff was deprived of the use of it from the 3rd of June to the 23rd of September, and the damages claimed being in respect of the delay in the delivery. Hearn v. tlie London amd Sovth- Western Bail. Co., 24 Law J. Rep. (n.s.) Exch. 180; 10 Exch, Rep. 793. (C) Charges poe Cabriaob op Goods. By 5 & 6 Will. 4. c. cvii. the defendants were in- corporated for the purpose of making and working the Great Western Railway. By 8. 163. all persons were empowered to use the railway, with proper carriages, upon payment of such rates and tolls as the act authorized to be taken. By s. 164. tolls, none of which exceeded Sd. per ton per mile, were allowed to be taken by the com- pany for tonnage of articles to be conveyed on the railway. By s. 166. the company were empowered to pro- vide power for drawing articles on the railway, and to receive such sums for the use of such power as they should think proper, in addition to the other rates, tolls, or sums by the act authorized. By s. 167. the company were authorized to use locomotive or other power, and in carriages drawn thereby to convey goods, and to make such reason- able charges for such conveyance as they might determine upon, in addition to the rates or toUa by the act authorized. By s. 171. the company were empowered to make such orders for fixing a sum to be charged in respect of small parcels not exceeding five cwt. as to them 124 CARRIER ; (C) Charobs fob Carkiaqk. thould seem proper ; " provided that the said pro- vision shall not extend to articles sent in large aggregate quantities, though made up of separate parcels, such as bags of sugar, coffee, raeal and the like, but only to single parcels unconnected with parcels of the like nature which may be sent at the same time." By 8. 175. it was provided, that the rates and tolls to be taken by virtue of that act should be charged equally and after the same rate per ton per mile in respect of the same description of articles, and that no reduction or advance in the same should either directly or indirectly be made, partially, or in favour of or against any particular person ; but that every such reduction or advance should extend to all per- sons using the railway or carrying the same descrip- tion of articles thereon. By 1 & 2 Vict. c. xcii. s. 44. the company were empowered to receive a reasonable charge for the loading and unloading or weighing any articles which they might be required to load, unload, or weigh. By 7 & 8 Vict. u. iii. o. SO. the company were empowered, whenever they should act as carriers or provide locomotive power or carriages for the con- veyance of goods, to charge for such power and car- riages such sum (not exceeding the gums, if any, limited by former acts) as they should think expe- dient Provided that such charges should be made equally to all persons in respect of all articles of a like description and conveyed in a like carriage over the same portion of the railway and under the like circumstances, and no reduction or advance in any of such charges should be made partially, either directly or indirectly, in favour of or against any particular person. The plaintiff, a carrier, sought to recover, in an action for money had and received, the amount of sums alleged to have been overcharged by the de- fendants for carriage of goods by their railway. 1 . In addition to the rates fixed by the company for the carriage of goods by their scale-bills, they charged the plaintilf a sum for " loading, unloading, covering, and risk of stowage." The plaintiff never required the company to load or unload: — Held, that the rate fixed for " conveyance," where the company acted as carriers under s. 167. of 5 & 6 Will. 4. c. cvii, included the above charges; and that s. 44. of 1 & 2 Vict. c. xcii. did not apply to the case where the company acted as carriers in con- veying the goods of other persons, but only to cases in which they did not act as carriers, but performed the duty of loading and unloading for other persons carrying goods, being requested by them to per- form it. 2. Up to a certain time the company had made an allowance of 10/. per cent, to the plaintiff and other carriers for requiring them to sign certain ticking-off notes and declarations whenever they delivered goods to be carried by the company. In order to make these, some trouble was required in weighing and classifying the goods. The allowance was discontinued after the decision in Parker v. the Great Western Sail. Go. The same notes were not required from persons not being carriers: — Held, that the requiring such additional matter from car- riers without allowance, did not entitle them to an action for money had and received, as for an over- charge to them, as compared with the rest of the public, in violation of the 5 & 6 Will. 4. c. cvii. B. 176; but that it was the subject of an action for damages for any injury sustained in consequence. 3. The plaintiff and other carriers were in the habit of making charges for booking parcels. The company entered into an agreement with E S to convey goods to and from their station for l,000i., and to relinquish booking fees, which he did : — Held, that, assuming the practice of booking without fees to be continued by E S, this was no violation of the proviso in s. 175, the plaintiff not being bound to charge anything for booking, but doing it merely for his own benefit. 4. The company charged the plaintiff and other carriers 60 per cent, more for " packed parcels" than they charged the public in general : — Held, that this was a violation of the proviso in the 5 & 6 Will. 4. c. cvii. s. 175. and in the 7 & 8 Vict. c. iii. s. 50, and that the plaintiff was entitled to recover back the sums so paid. 5. The company, by a scale-bill, in force up to June, announced that on miscellaneous goods, not being aggregate of one "kind or class," they would charge 2(i. extra : — Held, that, by having used the words "kind" and "class" as synonymous, they were bound by their own definition, and could not charge goods of the same class in their scale-bill as goods unconnected with goods of a like nature, within the meaning of the proviso in s, 171. of the 5 & 6 Will. 4. c. cvii. By 5 subsequent scale-bill the goods were divided into " classes" without any miscellaneous class, and it was announced that a parcel-rate would be charged on all parcels under one cwt. When several parcels in one lot of goods of the same class, but of different kinds, each separately being under one cwt., but in the aggregate above one cwt., were directed to one consignee (as was generally the case where the com- pany carried them for the public), the company charged tonnage rate on such lot of parcels ; but when a similar lot of parcels was delivered by car- riers, directed to different consignees, the company charged each separate parcel at the parcel-rate : — Held, an unequal mode of charging within s. 50. of the 7 & 8 Vict. c. iii, and that the fact of being directed to the same or different consignees does not prevent goods from being goods carried " under the same circumstances " within that section. The mere division of goods into " classes " in the scale-bill would not enable the plaintiff to treat all the goods in a particular class as goods " of a like nature," within s. 171. of the 6 & 6 Will. 4. c. cvii, or as goods of a " like description " within s. 60. of the 7 & 8 Vict. c. iii. (post, 8th head.) 6. Held, that where several parcels of goods of the same kind were sent together and amounted to a greater weight than five cwt. (or the weight fixed upon by the company as the dividing point between the tonnage and parcels rates) they could not be charged an additional sum as "miscellaneous goods," or at the parcel-rate within o. 171. of the 6 & 6 Will. 4. c. cvii, 7. Held, that in addition to the toll of %l. per cent, which the company were empowered to take by s. 1 64. of the 6 & 6 Will. 4. c. cvii. for tonnage, they were also entitled by s. 167. to charge a reason- able sum for " conveyance " of goods as canlers, including loading, unloading, risk, &c., and were not CARRIER; (C) Charges fob Caeriaqe. 125 restricted to " such a sum rs they should think ex- pedient for locomotive power and carriages," within s. 50. of the" 7 &; 8 Vict. c. iii. (assuming that to be the true construction of the last-mentioned section). 8. Held, that according to the proper construction of the 5 & 6 Will. 4. c. cvii, s. 171, where several small parcels of a like nature, being altogether less than one cwt. (the scale-bill fixing that as the limit), were delivered in one lot directed to different con- signees, the company were entitled to charge them as one " small parcel " within that section at the parcel-rate ; and where such several small parcels were not of a like nature, though in the same " class" in the scale-bill, the company were entitled to charge each of them as a separate parcel at the parcel-rate. Parker v. the Great Western Rail. Co., 21 Law J. Rep. (N.s.) C.P. 67 ; 11 Com. B. Rep. S4S. The Great Western Railway Company, before the 7 & 8 Vict. c. iii. came into operation, was obliged by the 2 & 3 Vict, c' xxvii. s. 24. to charge for carriage to all persons equally, but they charged P, a carrier, differently from and more than the public : — Held, in accordance with ParJcer v. the Great Western Sail- way Company, that the overcharge was recoverable as money received to the carrier's use. Edwwrds v. the Great Western Rail. Co., 21 Law J. Rep. (n.s.) C.P. 72; 11 Com. B. Rep. 588. The 7 & 8 Vict. c. iii. by sections 48, 49. and 50, repealed the 2 & 3 Vict. c. xxvii. s. 24, and re-enact- ed it, with the difference that in section 50. the words " under like circumstances" were introduced, The company continued to charge P more than the public : —Held, that he might recover the overcharge, the fact of his being a carrier only not rendering the cir- cumstances unlike. Ibid. Under the company's original act, 5 & 6 WiU. 4. c; cvii. o. 171, the company was authorized to fix the sums to be charged for small parcels, provided they were not sent in large aggregate quantities made up of separate and distinct parcels. The company published scale-bills, in which they specified divers classes, containing different kinds of goods, and one class comprised miscellaneous goods, " not being ag- gregate of one class or kind," which were charged at a higher tonnage rate, with an extra charge for each parcel. The company charged P under the miscel- laneous class for aggregate goods, which though of different kinds were within the same class in the scale-bills: — Held, that this was an overcharge, and that the word "class" must be taken to mean some- thing more than " kind," and to apply to the classes mentioned in the scale-bills. Ibid. Held, also, with regard to all the foregoing over- charges, that it made no difference that the separate parcels, which were all to be delivered to the carrier or his agents at the end of the journey, were destined for different ultimate consignees. Ibid. P's servants assisted the company's servants in loading, unloading and weighing, but not at the com- pany's request, and the public gave no such assistance. The company, before the decision of Parker v. the Great Western Railway Gompwny, had allowed car- riers 10/. per cent, for such assistance, and P in this case claimed a similar deduction : — Held, that P was not entitled to any deduction on this ground. Ibid. The company, before the decision in Parker v. the Great Western Railway, had entered into an agreement with K to allow him 10 per cent, discount; but after that decision tjiey refused to make the allow- ance. K brought an action and recovered a verdict for the 10 per cent., which the company paid ac- cordingly : — P claimed the 1 per cent, on the ground that he and K had been charged unequally, K having been allowed that amount Held, that this was not an allowance which made the charge unequal. Ibid. P paid the overcharges under protest, and after notice of action to the company he sent in a claim in writing of interest. It was objected that as the notice of action did not contain a claim for interest it could not be recovered ; but as there was no plea of want of notice of action, and as the action and all matters in difference had been referred to an arbitrator : — Held, that the arbitrator might award interest under the 3 & 4 Will. 4. c. 42. s. 4. Ibid. A declaration in case alleged that the defendants were common carriers of goods for hire, and that the plaintiff delivered to them as such common carriers a package to be carried by them to the Euston station, and there to be safely and securely kept by them for the plaintiff, and that it became the duty of the de- fendants safely and securely to carry and keep the package. Breach, that the defendants did not safely and securely carry the same, but that through their negligence it was lost. Plea, that the defendants gave notice to the plaintiff that they would not carry any package containing several packages addressed to and intended for several parties unless the addresses and contents of the inclosed packages were declared, and that they would not be responsible for such pack- age, unless such declaration were made; that each of the packages in question contained several parcels addressed to and intended for different parties, and that the addresses and contents of the inclosed par- cels were not declared: — Held, on demurrer, that the plea amounted to an argumentative traverse of the bailment stated in the declaration. Crouch v. the London and North-Western Rail. Co., 21 Law J. Rep. (n.s.) Exch. 207; 7 Exch. Rep. 705. The Bristol and Exeter Railway and the Great Western Railway were continuous lines, but are worked by independent companies; and by their acts of parliament were bound to charge all persons equally under the same circumstances for the carriage of goods, &c. By the scale-bills issued by each of the companies, certain sums were specified as the charge for the carriage of goods where the goods were to be collected and delivered by the companies; and a smaller sum was specified as chargeable, where the goods were to be collected and delivered by the parties themselves. The plaintiff, a carrier, sent certain goods which he had undertaken to collect and deliver on his own account by the Bristol and Exeter Railway Company, to be carried upon both lines of railway, but he objected to the charges as being excessive, and paid the whole amount claimed under protest: Held, first, that he was entitled to recover back the amount so paid in excess of what was a fair and rea- sonable charge in an action of money had and re- ceived, although he had not made any tender of any specific sum as a fair and reasonable charge; and, secondly, that the whole sum so paid in excess was recoverable from the Bristol and Exeter Railway Company, although they had received a portion of it as agents only of the Great Western Railway Com- pany. Pmicer v. the Bristol and Exeter Rail. Co., 6 Exch. Rep. 702. 126 CARRIER— CERTIORARI. (D) Actions. [See MarahaM v. York, ike. Rail, Co., ante, (B) (J).] An action of debt is not maintainable upon an agreement that the defendant would carry certain goods for the plaintiff, in consideration that the defen- dant would carry a like quantity for the defendant. Bracegirdle v. Hincks, 23 Law J. Rep. (n.s.) Exch. 128; 9 Exch. Rep. 361. The plaintiffs declared against the defendants as common carriers subject to the terms of a special notice, for the loss of a truss of silk by the gross neg- ligence of the defendants and the felonious acts of their servants. The defendants pleaded, except as to the gross negligence and felony, that the goods were such as are excepted in the Carriers Act, and that the defendants did not declare their value. The plaintiff new assigned that he had brought his action for that the defendants' servants had feloniously stolen the goods. The new assignment was held bad, on demurrer; and the plaintiffs were allowed to amend on payment of costs, and to reply that the goods were lost by the felony of the defendants' ser- vants through the gross negligence of the defendants. Held, also, that the allegation of gross neghgence and felony in the declaration was surplusage, and that a replication of felony only without an allega- tion of gross negligence would have been bad. BiUt v. the Great Western Rail. Co., 20 Law J. Rep. (n.s.) C.P. 241j 11 Com. B. Rep. 140. (E) DAMAGE3 EEOOTERABLE. The damages recoverable for a breach of contract are such as may fairly and reasonably be considered as arising naturally; i.e. according to the usual course of things, from the breach of the contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it Hadley v. Baxendale, 23 Law J. Rep. (n.s.) Exch. 179; 9 Exch. Rep. 341. Where a contract is made under special circum- stances which are communicated by one of the con- tracting parties to the other, the damages resulting from a breach of the contract, which the parties would reasonably be supposed to have contemplated, are the amount of injury which would ordinarily fol- low from such a breach of contract under the special circumstances. But if the special circumstances are unknown to the party breaking the contract, he, at the most, can only be held to have contemplated the amount of injury which would arise generally, and in the great multitude of cases, not affected by any special circumstances, from such a breach of contract. Ibid. Therefore, where a miller had employed a carrier to convey a broken shaft belonging to his mill, to be delivered to an engineer, and the carrier was guilty of an unreasonable delay in delivering it, and the engineer was thereby prevented from making a new shaft from the model of the old one, and the mill remained idle for a considerable time, — Held, in an action against the carrier for the delay, that the jury, in estimating the damages, were not justified in taking into their consideration the loss of profits by reason of the stoppage of the mill. Ibid. The omission of the Judge to. direct the jury as to any established rules of measuring the damages ap- plicable to the particular case is a ground of new trial. Ibid. CASE. [See Action — Animals — Distress — False Re- presentation Hackney Carriage — Master AND Servant — Mine — Neghqence — Nuisance — Patent — Sheriff — Slander.] CEMETERY. [See Burial.] CERTIORARI. [Casts on removal by, see title Costs in Criminal Cases — To remove beer licence, see Regi/na v. Sal- ford, title Ale and Beerhocse, (A) (6).] (A) When it lies. (a) For Removal of CoMses from Inferior Courts. (6) For Removal of Indictm,ents. (c) For RemMial of Conmciions and Depo- sitions. {d) Though taken away by Staiuie. (B) Service of Notice. (C) Return of Writ. (D) Procedendo. (A) When it lies. (a) For Removal of Causes from Inferior Courts. [See^os«, (C).] Where a certiorari had been issued by leave of a Judge under the 9 & 10 Vict c. 95. s. 90, upon an affidavit which stated generally that difficult ques- tions would arise, but did not state what those questions were, or the grounds upon which they would arise, the Court refused to set the writ aside, — as it did not appear that those particulars were not pointed out to the Judge at chambers. Goldinq v. Camdwell, 2 L. M. & P. P.C. 175. The writ of certiorari to remove a cause from the county court in which the amount claimed is be- tween 201. and 50/. is not taken away by the statute 13 & 14 Vict. u. 61. s. 16. In re Broohmam, v. Wenham, 20 Law J. Rep. (n.s.) Q,B. 278; 2 L. M. & P. P.C. 233. Service of the certiorari on a person acting as clerk at the office of the chief clerk of the county court is good service on the Judge; though not suffi- cient to ground an attachment against the Judge where the writ does not come to the Judge's know- ledge until after the return day has passed. The Judge should be ruled to return the writ. Ibid. A writ of certiorari was granted by a Judge to two defendants to remove a plaint of replevin from a county court on an affidavit stating that the rent exceeded 20i. (9 & 10 Vict c. 95. s. 121.) No pre- vious application had been made to the county court .Judge. At the trial, the defendants presented the certiorari, and one of them offered to make the de- CERTIORARI; (A) When it lies. 127 claration under the 12l8t section, stating that the other was unable to make it. They also tendered a bond conditioned to prove in the superior court that the rent was more than 201. The sureties were not approved by the clerk of the court. A rule «m for an attachment had been granted against the Judge for not receiving and returning the certiorari. The Court refused, on the above grounds, to quash the certiorari. Mimgean v. Wheathy., 20 Law J. Rep. (N.s.) Exch. 106; 6 Exch. Rep. 88; 2 L. M. & P. P.C. 155. The Judge of the county court is bound before allowing the certiorari to see that the requirements of the 121st section have been complied with: e.g. that the declaration is made, that the bond is given, and that the names of the sureties are given, and approved by the clerk of the court. Ibid. Semhle — that a certiorari may still issue under 9 & 10 Vict. c. 95. s. 90, to remove a cause from the county court, notwithstanding 13 & 14 Vict. t. 61. D. 16; but, — Held, that all the material facts relative to the state of the cause should be brought before the Judge upon the application for the writ ; and therefore, where a certiorari had been obtained without the Judge having been informed that the cause had already been heard for several days in the county court, the writ was set aside as having been issued improvidently. Parker v. the Bristol and Exeter BaM. Co., 20 Law J. Rep. (n.s.) Exch. 112; 6 Exch. Rep. 184. In order to prevent the removal of a plaint from the county court by certiorari, on the ground of want of jurisdiction in the superior court to entertain the action after removal, the plaint ought to be so framed as to disclose a cause of action over which the superior court has no jurisdiction. Beea v. Wil- Hams, 21 Law J. Rep. (n.s.) Exch. 24; 7 Exch. Rep. 61. Where » plaint was removed from the county court by certiorari, on the affidavit of the defen- dant's attorney, that difficult questions of law would arise, the Court refused to quash the certiorari, though the affidavit of the plaintiff's attorney averred that no such difficult questions of law would arise. Ibid. Devise by a testator to his son of certain freehold and leasehold estates and chattels as follows : " On condition of my son paying the following sums, viz, (J/nter alia), I will, order, and direct him to pay unto his mother the sum of 4s. a week weekly and every week during her natural life" : Held, that this was not a claim of a legacy within the 65th section of the County Courts Act, 9 & 10 Vict, c. 95, but of a debt; and an action having been brought in the county court, the Court granted a certiorari. In re Long- bottom V. Longbottom, 22 Law J. Rep. (n.s.) Exch. 74; 8 Exch. Rep. 203. Where a plaint in the county court does not ex- ceed 51. it cannot be removed by certiorari, although the plaintiff is an officer of the court. In re Box v. Greem, 23 Law J. Rep. (n.s.) Exch. 219; 9 Exch. Rep. 503. Where the bailiff of a county court entered two plaints, one for 51. for an assault, and the other for 51. as a fine under the 9 & 10 Vict. c. 95. s. 114. for assaulting him in the execution of his duty, the assault complained of being the same in both plaints, — Held, that these were two distinct plaints, the latter being only an informal mode of claiming the fine ; and that, therefore, the plaints were not re- movable by certiorari. Ibid. (J) For Bemoval of IruUctments. The Court will grant a certiora/ri to remove an indictment for conspiracy, on the application of one of the several defendants, without the consent of the others, if that defendant will enter into a recogni- zance to pay costs if either himself or any of the other defendants are convicted. Regina v. Poulkes, 20 Law J. Rep. (n.s.) M.C. 196; 1 L. M. & P. P.C. 720. The Central Criminal Court Act (4 & 5 Will. 4. 0. 36. s. 16.) provides that the Court of Queen's Bench, or the Commissioners under that act, being Judges of the superior courts, or the Judges of the Court of Bankruptcy, or the Recorder of London, may issue writs of certiorari or other process to re- move into the Central Criminal Court indictments found at the Sessions for London, Middlesex, &c. for any offences cognizable by virtue of that act : — Held, that this does not repeal the 7 & 8 Geo. 4. c. 29. 8. 53, which enacts that no indictment for ob- taining money, &c. by false pretences shall be re- moved by cerliora/ri into the Court of Queen's Bench; but that it authorizes the several Judges there specified to issue writs, in the nature of writs of certiora/ri, to remove indictments for any offences there cognizable into the Central Criminal Court from the Sessions there mentioned. Begina v. SUlj 21 Law J. Rep. (n.s.) M.C. 214; 1 Dears. C.C.R. 10. Several defendants were indicted for a misde- meanour. One was in custody on the charge, the others were out on bail. The Court, on the appli- cation of one of the defendants who was out on bail, granted a certiorari to remove the indictment into this court, on the terms that if the defendant in prison did not consent, the applicant was to find bail for him. Begina v. Drake, 22 Law J. Rep. (n.s.) Q.B. 304. (c) For Bemoval of Convictions amd Depositions. As no certiorari issues out of the Court of Ex- chequer, a conviction is properly brought before it, if verified by affidavit. In re Allison, 10 Exch. Rep. 561. In moving for a certim-ari to bring up depositions taken before a coroner or magistrates, with a view to admitting a party committed upon them for trial on a charge of murder or manslaughter, it is the proper course to produce copies of such depositions verified by affidavit, and on them to ground the application. ~ ' - y,l Dears. C.C.R. 60. (c?) Tlumgh taken away by Statute. By the Game Act the certiorari is taken away. Qucere — whether the objection that there is no pro- per adjudication of the penalty be one for which the certiorari may nevertheless issue ; but the convic- tion having been brought up by certiorari under 12 & 13 Vict. c. 45. 8. 18. in order to be enforced, the Court entertained the objection. Begina v. Hyde, 21 Law .1. Rep. (n.s.) M.C. 94. The 11 & 12 Vict. c. 43. s. 27. provides that where Quarter Sessions, upon an appeal against an order, direct either party to pay costs, " such order shall direct such costs to be paid to the clerk of the 128 CERTIORARI; (A) When it lies. peace, to be by him paid over to the party entitled." Held, that a mistake in ordering costs to be paid directly to the party to the appeal instead of to the clerk of the peace, was not a defect of jurisdiction, but merely erroneous procedure ; and, therefore, where such an order had been made under an act taking away the certiorari, the Court refused to set it aside when brought before them by certiorari. Meginav. Binmy, 22 Law J. Rep. (n.s.) M.C. 127; 1 E. & B. 810. Where the clerk of the trustees of a turnpike-road which was out of repair had been summoned by a single Justice, and two .Justices, at a special sessions for the highways, without allowing the. clerk to shew that the turnpike funds were insufficient, made an order convicting him in a penalty and directing him to repair the road in a specified time, — Held, that though the certiorari was taken away by the act, this order was so entirely without jurisdiction that a certiorari might issue to bring up the order to quash it. Regina v. the Justices of St. Albans, 22 Law J. Eep. (n.s.) M.C. 142. An indictment for non-repair of a highway pre- ferred, and found, at the assizes by an order of Jus^ tices made under the 5 & 6 Will. 4. c. 50. s. 95, may be removed by certiorari into the Court of Queen's Bench. Regina v. the InhaMfants of San- dm, 23 Law J. Rep. (n.s.) M.C. 129; 3 E. & B. S47. The Public Health Act, 1848 (11 & 12 Vict. c. 63.), by section S5, authorizes local boards of health to make bye-laws with respect to the removal by occupiers of " dust, ashes, rubbish, filth, manure, dung, and soil," in or by the side of a street within their district, and such bye-laws are required to be allowed by a Secretary of State. By section 129. penalties imposed by bye-laws made under the act may be recovered before Justices. A local board of health made a bye-law (which was duly allowed by a Secretary .of State), requiring all occupiers within the district to remove " all snow and other obstruc- tions" from the foot-paths opposite their premises before nine o'clock in the forenoon. Upon informa- tion laid before a Justice under this bye-law, that an occupier had omitted to remove, before the hour specified, an accumulation of snow which had fallen and drifted upon the footpath, he convicted her in a penalty for neglecting to remove " snow," and de- clined to decide upon the legality of the bye-law, which was contested, considering himself bound by the feet of its allowance by the Secretary of State : — Held, that the bye-law was not warranted by the statute, and therefore, that the Justice had proceeded without jurisdiction, and that a certiorari might issue, although it was expressly taken away by the statute. Segima v. Rose, 24 Law J. Rep. (n.s.) M.C. 130. (B) Sekvice of Notice. Upon the trial of a parish appeal F S, one of the Justices, who was a rated inhabitant of the appellant parish, was on the bench during the hearing, and in the course of the proceedings referred the chairman of the Quarter Sessions to some of the documents put in evidence. Upon an observation being made that he was a party interested, F S stated that he should take no part in the decision, but he remained in court until the final decision, which was in favour of the appellants. It was sworn that he did not vote or give any opinion upon the question at issue, nor did he influence the decision of the other Justices present, and that if he had not believed that the parties were satisfied with his assurance that he would take no part, he would have retired from the court during the trial : — Held, that notice of an in- tention to move for a certiorari under 1 3 Geo. 2. c. 18. s. 6. was properly served on F S, as a Justice " by and before whom the order of Sessions was made." Regina v. the Justices of Suffolk, 21 Law J. Rep. (N.S.) M.C. 169; 18 Q.B. Rep. 416. The notice stated that application would be made for a certioran' "on behalf of the inhabitants" of the respondent parish, and was signed " J M, attor- ney for the inhabitants of the respondent parish" ; — Held, to be sufficient. Ibid. The affidavit of service of notice of an intention to apply for a certiorari to remove an order of Sessions, under the statute 1 3 Geo. 2. c. 18. s. 5, stated that the notice was served on A B and C D, two of the Justices of the Peace in and for the county of S, and stated that the deponent was present at the Quarter Sessions on a particular day, " and did then and there see the said A B and C D acting as Justices of the Peace for the said county of S at the said General Quarter Sessions of the Peace." The order of Sessions, which purported to be made on the day to which the affidavit referred, contained in the caption the names of A B and C D as two of the Justices before whom the sessions were holden. The Court quashed the certioran on the ground that the affidavit did not shew that A B and C D were two of the Justices by and before whom the order was made, and that no presumption could be drawn that they were present when the order was made from the circumstance of their names appear- ing in the caption. Regina v. St. James's, Colchester, 20 Law J. Rep. (N.S.) M.C. 203; 2 L. M. & P, P.C. 314. (C) Return of the Writ. A plaint in replevin having been commenced in the county court against the landlord and the bailiff making the distress, and a certioi'ari having issued to remove the same, the defendant's attorney deli- vered the certiorari to the Judge, and offered on the part of one of the <3efendant3 to make the declara- ration required by the 121st section of the 9 & 10 Vict. c. 95, to the effect that the rent exceeded 20/., stating that the other defendant, the bailiff, was unable to make the declaration. The defendant, the landlord, was not present, being too ill to attend ; but he had executed a power of attorney toone W autho- rizing him to sign amd seal the bond required by the 121st section, and generally to perform all such acts about the conduct, &c. of the writ as he should think proper, &c. The sureties were present in court, but sufficient time had not been given by the defen- dants to the clerk of the court to inquire into their sufficiency, and therefore the clerk of the court did not approve of them pursuant to the 121st section. The bond tendered by the defendants under that section was conditioned for their proving before the superior court that there was ground for believing that the rent exceeded 20/. The Judge disallowed the certiorari and tried the cause, on the ground of the want of time for the clerk of the court to CERTIORARI— CHARITY. 129 inquire into the sufficiency of the sureties, but he did not iix the amount for which they were to be responsible : — Held, first, that the proceeding of the Judge was erroneous, and that an attachment ought to issue against him. Secondly, that the declaration under the 121st section might be made by the attorney, and need not be made by the defendants in person, or by a writing signed by them, and that it was sufficient if made by one defendant. Thirdly, that the act of the Judge in receiving the declaration was ministerial, and that after receiving it he was bound to fix the amount in which the sureties were to be bound; and that the question of the sufficiency of the sureties did not arise until he had taken that course. Qucere — as to the proper course, if after the receiving of the declaration and fixing the amount of the sureties' liability, the defendants had been un- able to comply with the other requisites of the statute within a reasonable time. Fourthly, that the party named in the power of attorney was authorized not only to sign and seal the bond, but to make the declaration. Fifthly, that the bond in question ought to be conditioned for the defendants' proving before the superior court that there was ground for believing that the rent exceeded 20Z. and not 501.; the jurisdiction of the county court as to replevin not being extended by the 13 & 14 Vict. c. 61. Mimgewn v. WTieatley, 20 Law J. Rep. (n.s.) Exch. 103; 6 Exch. Eep. 88. A certiorari issued under -this act ought to be made returnable in sufficient time to allow the pre- liminary inquiries to be made. Ibid. The conditions imposed by the 8 & 9 Vict. c. 95. B. 121, on the removal of actions of replevin by cer- tiorari, are to be complied with when the writ is delivered to the inferior Judge in court. Ibid. Where a .Judge of a county court, not wilfully, but by mistake, disobeys a certiora/ri, the remedy is by attachment. Ibid. QwEre — whether he ought to be ruled to return the writ. Ibid. (D) Procedendo. A Judge at chambers has jurisdiction to make an order for the issuing of a writ of procedendo to send back proceedings removed by certiorari from an inferior court, and it is a matter for the discretion of the Judge whether or not a summons to shew cause should not in the first instance be granted. Megina T. Scaife, 21 Law J. Eep. (n.s.) M.C. 221; 18 Q.B. Eep. 773. (6) J0KISDIOTION OVER. (o) Of the Court of Ohcmcery. (\) In general. (2) Under 8 tt- 9 Vict. c. 70. (3) On Petition. (5) Of the Visitor. (H) Pleading and Peaoxioe. ( I ) Costs. CHARITY. [See stats. 1 6 & 17 Vict. c. 1 37. and 1 8 & 1 9 Vict. c. 124. — Also titles College — University.] (A) Commissioners. (B) Charitable Trusts Act. (C) Superstitious Uses. (D) .Construction op Instrument creating IT. (E) Devise and Bequest to — Validity of. (F) Administration. (a) Scheme. (J) Trustees. (1) Controul over. (2) Appointment of New Trustees. (c) Estates. Digest, 1850—1855. (A) Commissioners. The payment of a charity legacy into court under the Trustee Relief Act is not a suit or matter within the Charitablp Trusts Act, 18S3, to which the excep- tion in the latter act applies; and a petition as to the money so paid in was, therefore, directed to stand over, that the certificate of the Commissioners might be obtained. In re Ma/rlcwell, 23 Law J. Eep. (n.s.) Chanc. 502; 17 Beav. 618. By a private act for the management of a charity, passed before the Charitable Trusts Act, the trustees were empowered, with the approbation of the Court of Chancery, to sell or exchange lands, and to make any applications that might be necessary for that purpose before one of the Judges of the court in chambers : — Held, that notwithstanding the private act, it was imperative upon the trustees under the Charitable Trusts Act, to obtain the certi- ficate of the Commissioners, in the first instance, before taking any proceedings in the Court of Chan- cery. In re the Birtgley School and Chcurity Estate Act, 23 Law J. Eep. (n.s.) Chanc. 672; 2 Drew. 283. A testator gave property partly for the benefit of a college in Oxford and partly for a school not con- nected with the college : — Held, that it was unneces- sary to go before the Charity Commissioners for their sanction to an application to the Court in respect of that portion of the charity which applied to the college, though the sanction of the Commissioners would be required as regards the other portion of the charity. In re Meyrich's Charity, 24 Law J. Rep. (n.s.) Chanc. 669. (B) Charitable Trusts Act. A matter pending, means, within the Charitable Trusts Act, a continuation of something already directed by the Court; not a matter totally new. Ford's Chanty, 8 Drew. 324. A legacy given generally to an unendowed chari- table institution, supported in part by voluntary contributions, is not within the Charitable Trusts Act, 1853. In re Wilson's Will, 19 Beav. 594. The 28th section of the Charitable Trusts Act (16 & 17 Vict. c. 137.) confers on the Master of the Rolls and the Vice Chancellors at chambers the same jurisdiction as they would have exercised before the passing of that Act in a suit regularly instituted or upon petition. New trustees of a charity having been appointed under the act (16 & 17 Vict. c. 137.) by the Vice Chancellor, and the surviving trustee being lunatic, it is competent for the Vice Chancellor in chambers to make the vesting order under the Trustee Acts, 1850 and 1852. In re Davenport's Charily, 4 De Gex, M. & G. 839. (C) Superstitious Uses. A foreigner and Roman Catholic transferred into the names of trustees a sum of stock upon a parol 130 CHARITY. trust, to pay annuities to different churches for masses and requiems for the souls of the testator and the poor dead, and for other pious uses: — Held, that there was no violation of the Wills Act in this parol trust; but that the trust was void, as being for super- stitious purposes; that the purposes could not be considered as charitable; and that the next-of-kin were entitled to the funds. Eeath v. Chapman, 23 Law J. Rep. (n.s.) 947; 2 Drew. 417. (D) Construction op Instrument creating it. A testator possessed of lands in New South Wales, of leasehold property in Scotland, and of pure per- sonalty, devised and bequeathed all to trustees, upon trust, for absolute conversion, and after various be- quests gave the residue to trustees to apply the same at their absolute and uncontrouled discretion for the benefit and advancement and propagation of education and learning in every part of the world, so far as circumstances would permit: — Held, that the words "education and learning" were to be read " education in learning," and that there was a good charitable bequest. Whicker v. Hume, 21 Law J. Eep. (N.B.) Chanc. 406; 1 De Gex, M. & G. S06; 14 Beav. 509. Held, also, that the statute 9 Geo. 4. c. 83, which provides, that all laws and statutes of the realm shall be enforced in the administration of justice so far as the same can be applied, means *' reasonably ap- plied," and that the statute 9 Geo. 2. c. 36. is inap- plicable to lands in New South Wales. Ibid. A chapel was founded in England, and was used, and the services therein were performed according to the mode of worship in the Established Church of Scotland. The Court below held, that no person could enjoy the office of minister who was disqualified to be a minister of the Established Church of Scot- land ; and it being proved that the minister had be- come so disqualified, he was ordered to be removed, and the trustees who co-operated with him were also removed, and he and they were ordered to pay the costs of the suit. He and they appealed from the decree, but the same was wholly affirmed; Lord Chief Justice Cranworth dissenting from part of the decree by which the Court below declared that " no minister or other person is qualified for, or is com- petent to exercise the office of minister or pastor without being a licentiate and recognized minister of the Established Church of Scotland, and in full con- nexion therewith." Attorney General v. Murdoch, 21 Law J. Rep. (n.s.) Chanc. 694; 1 De Gex, M. & G. 86. An application was subsequently made to suspend the execution of the decree of the Court below, pending an intended appeal to the House of Lords; but the Court refused the motion, with costs. Ibid. A testator, by his will, dated the 12th of October 1629, bequeathed a sum of money to be employed for the good and benefit of the poor of Kensington for ever, in such manner as A and B and the church- wardens of the said parish of Kensington should think fit to establish. This sum was, in 163S, laid out in the purchase of land. It appeared in evidence that in 1629 there was a place called the town of Ken- sington, but that such place had not any known or defined metes or bounds, and that there was no muni- cipal corporate town or market town in the parish of Kensington. It appeared, also, that the rents had been always applied for the benefit of the poor of Ken- sington parish generally, and that, in all the deeds relating to the property, no distinction had been made between town and parish: — Held, that the above- mentioned trust was for the benefit of the parish of Kensington generally, and not for any particular part of it. Ex pwrte the Incumbent and Church- wardens of Brompton, 22 Law J. Rep. (n.s.) Chanc. 281 ; 5 De Gex & Sm. 626. A founded a school in the town of S, and by the indenture of foundation, declared that "there was about 50t per annum designed to be given for an endowment." He then specified iOl. a year to the two schoolmasters and several small sums which made up about SO/, a year. By his will, which recited this indenture, he gave to the mayor, &c. of S all his estate at U and N, upon condition, &c. Then fol- lowed directions as to the payments provided for by the indenture founding the school, and also as to various other payments; and the residue was to go half to the mayor of S for the time being, and the other half to mend the roads. In an account sub- joined to his will, after mentioning all these payments, he introduced this item : " Balance which the cor- poration of S will gain per annum, Sil. Is. 9\d." The estate thus given increased largely in value : — Held, reversing the decree of the Court below, that the increased residue was to go to the mayor towards defraying the expenses of the mayoralty and mend- ing the roads, and that the school was not entitled to a share in the increase. The Mayor, Aldenmen and Burgesses of Southmolton v. the Attorney General, 23 Law J. Rep. (n.s.) Chanc. S67; 5 H.L. Cas. 1: reversing Attorney General v. the Corporation of SouthTTwlton, 14 Beav. 3S7. The Hospital of St. Cross was founded, in 1157, for the benefit of 1 3 poor impotent men, and 100 others of the more indigent were to be received at the hour of dinner, and other relief was to be given to whomsoever should be in want, according to the means of the house. The Almshouse of Noble Po- verty was founded, in 1445, for two priests, thirty- five brethren and three sisters. It was within the precincts of the Hospital of St. Cross, and was under the government of the master and brethren. The charter of foundation of the Hospital of St. Cross was lost ; but the register of the Bishop of Winches- ter in 1200 referred to it, and a copy was found to be registered there some time between 1323 and 1333. The charter of foundation of the Almshouse of Noble Poverty, if ever executed, was lost; but the intention of the founder was referred to in the docu- ments by which grants were made for its endowment. In 1696, a document was executed by the master and brethren of the Hospital of St. Cross, by which they made a new disposition of the revenues of both the charities, which had been acted upon until the present time. Upon an information, Held, that the charitable purpose of the foundation was clearly made out and ought to be upheld, and that the re- venues of each ought to be applied to support the charities, though in the one they had been diverted from 1696, and in the other they had been absorbed by the original charity for 150 years and upwards; that no presumption could be made against the clear ostensible purpose of the foundation, though it was supported by a usage of ISO years; and that the purpose for which a foundation is made must deter- CHARITY. 131 mine whether it is spiritual or lay. The founder's direction that the master shall be a clerk in holy orders will not make It a spiritual foundation. At- torney General v. the Master and BreOiren of the Hospital of St. Cross, 22 Law J. Rep. (n.s.) Chanc. 793; 17 Beav. 435. The Duke of Suffolk, in 1437, as lord of the manor of Ewelme, founded, with the licence of king Henry the Sixth, an almshouse for two priests, one of whom was to be the master, and the other was to teach grammar to the children of the manor. The duke afterwards made ordinances for the government of the charity, which directed that the lord or lady of the manor for the time being should be the visi- tors, and appoint the masters and poor men in case of death or removal. The master was to be a priest thirty years of age, and of the University of Oxford, who might have other preferment, so that it did not interfere with his residence. It also directed that the house should, if thought needful, be visited an- nually by the visitors. By the attainder of the duke or his successor the manor became vested in the Crown, and was so in the reign of Henry the Eighth. In 1618 James the First, for the promotion of good literature and the increase of the stipend of the Re- gius Professor of Medicine in the University of Ox- ford, granted to the Chancellor, masters and scholars, and their successors, the donation and free dispo- sition of the mastership of the almshouse, and de- clared his pleasure and intention that the professor, though a layman, should enjoy the office, and at the same time gave his assent that in the next session of parliament it should be so enacted. No act of par- liament appeared to have been obtained; but in 1818 the Commissioners of Woods and Forests, under the £7 Geo. 3. c. 97, sold the manor of Ewelme, which subsequently became vested in the Earl of Maccles- field, who, as lord of the manor and visitor of the almshouse, on the first vacancy, appointed N to be the master ; and N and Dr. O. the Regius Professor of Medicine in the University of Oxford, each claimed the office of master of the almshouse. Upon an in- formation, — Held, that the charity vested in the Crown, upon the attainder of the Duke of Suffolk, and did not escheat and was not affected by the acts for dissolving monasteries or chantries ; that the right of nominating the master was analogous to an advow- Bon, which the founder of the almshouse could not make inseparable from the manor, and that any lord of the manor could alien the right of patronage with- out parting with the manor, and vice versd; that the grant of 1818 was sufficient to pass the right of no- mination had it been vested in the Crown, which it was not, as the grant of 1618 was sufficient to vary the nature of the office, and to sever it from the manor, and give it for the benefit of the Regius Pro- fessor of Medicine in the University of Oxford, though a layman. Attorney. General v. the Chap- lains, t&e., of (he Ewelme Almshome, 22 Law J. Rep. (n.s.) Chanc. 846; 17 Beav. 366. A gift by way of trust to build a bridge makes both principal and accumulations applicable to the pur- pose contemplated. Forbes v. Forbes, 23 Law J. Rep. (n.s.) Chanc. 422; 18 Beav. 552. In 1652 a testator devised property producing ill. a-year to a corporation, " in trust and confidence" to pay 20/., 101, and 10/. to certain charities, and so long as certain taxes continued, what the corporation could "not spare out of the overplus of rent," namely, 7/. should be deducted out of the two sums of 10/. and 10/. The rent of the estate increased: .^Held, by the Master of the Rolls, and affirmed on appeal, that the corporation were entitled to only seven forty-sevenths of the increase, subject to the payment of rates, taxes, and ordinary repairs. At- torney General v. the Corporation of Beverley, 24 Law J. Rep. (n.s.) Chanc. 374; 6 De Gex, M. & G. 256; 15 Beav. 540. A testator bequeathed a sum of money to the trea- surer for the time being of a lunatic asylum, there- after to be instituted " for the humane and charitable purposes of that institution." An asylum afterwards built under the compulsory provisions of an act of parliament supported by compulsory rates, and used entirely for the maintenance of pauper lunatics,— Held, not entitled to the bequest. Lechmere v. Cwrt- ler, 24 Law J. Rep. (n.s.) Chanc. 647. Where a charitable gift is ambiguous, it may be interpreted by the aid of contemporaneous usage ; but no length of usage will warrant a deviation from' the terms of a trust which the Court regards as plain ; and the Court did not hold itself bound as to such deviation by proceedings in former suits, in which the question did not directly arise. Attorney Ge- neral V. the Corporation of Rochester, 5 De Gex, M. & G. 797. By a local act, certain commissioners were autho- rized to levy rates for paving, lighting, watching, widening and improving streets in a town : Held, that as the object was beneficial, not only to the in- habitants subjected to the rate, but also to all other persons having occasion to visit or pass through the town, the purpose was public and charitable within the meaning of the Statute of Charitable Uses. At- torney General v. Eastldke, 11 Hare, 205. The question whether funds are dedicated to a charitable use within the statute 43 Eliz. c. 4, de- pends not on the source from which the funds are derived, but on the purpose to which they are to be applied. Ibid. Charitable gift to the use of the reparation of the church of W, and to the use of the reparation of the bridge of W, and to the use of other things needful within the parish of W, at the discretion of the trustees, to be applied and distributed for ever : Held, that the discretion applied to the third branch only, and that the three objects took equally. Re Hall's Charity, 14 Beav. US. Under Sir Samuel Romiliy's Act the Court had jurisdiction to declare the proportions in which the charitable objects are entitled, but not to repair a previous misapplication of funds amongst them. Ibid. Effect of the authorities upon the construction of Sir Samuel Romiliy's Act. Ibid. (E) Devise and Bequest to Validity op. Bequest by a will of a sum of money to be ap- plied to the restoration of the Jews to Jerusalem and their own land, — Held to be void. Habershon V. Vaa-don, 20 Law J. Rep. (n.s.) Chanc. 549 ; 4 De Gex & Sm. 467. Sums invested by the testatrix in stock, and other sums placed by her in the savings bank, were the produce of monies which had been partly collected and partly appropriated by the testatrix for 132 CHARITY; (F) ADMIIflSTKATION. the purpose of building and endowing a church in a certain parish. The stock had been invested ip the names of the testatrix and of another person. At the time of the decease of the testatrix no deed appointing or declaring the trusts of the money had been executed, and no site of the intended church had been obtained : Held, that the money and stock were at the death of the testatrix part of her personal estate, and that the liability either of the money or the stock to any charitable use "was excluded by the statute 9 Geo.' 2. u. 36. Girdlestone v. Creed, 10 Hare, 480. Exception to statute 9 Geo. 2. c. 36. in the case of a bequest of monies to the extent of 500/. for build- ing or endowing a church. Ibid. After the passing of the Mortmain Act (1736) lands were devised to trustees for a charity. The rents were so applied by the trustees and their heirs down to the present time. On an information against the heir to correct abuses, he set up the invalidity of the devise, but the Court held that the onus of proving that no other mode had been adopted to make the charity valid was on him, and that every presumption would be made in support of its validity. Attorney General T. Moor, 20 Beav. 119. (F) Administhation. (a) Scheme. By the provisions of a scheme for the management of King Edward the Sixth's Grammar School at Ludlow, duly confirmed by the Lord Chancellor, it was declared " that the trustees should have autho- rity from to time, upon such grounds as they should at their discretion in the due exercise and execution of the powers and trusts reposed in them deem just from time to time, to remove the master, usher, &c. from his office," subject however to certain ftirmali- ties being observed : — Held, that these words con- ferred an absolute discretionary power upon the trustees, provided the formalities specified were fol- lowed, and that they were not bound to summon the master before them or to give him any hearing or opportunity of defending himself against the charges whicli formed the grounds of his removal. Doe d. Child V. Willis, 20 Law J. Kep. (k.s.) Exch. 85; 6 Exch. Eep. 894. By order made in 1844 on petition, and by a sub- sequent order made on petition, under Sir Samuel RomiDy's Act, 1848, the Court confirmed certain schemes regulating the management of the Free Grammar School at Kidderminster (found by inqui- sition taken in 9 Car. 1. to be then existing for the instruction of the children generally of the inhabit- ants in good literature and learning), and restricting it to forty free boys, from eight to fifteen years of age, of such inhabitants, with a preference to such as were members of the Church of England, and in case of deficiency to children of other persons being mem- bers of the Church of England, to be instructed gra- tuitously in Latin and Greek, and for certain pay- ments in other branches of education, giving the master the privilege of taking boarders to compete with the free boys for the prizes, and power to the trustees to admit any additional number of boys at certain payments, requiring the masters to be members of the Church of England, and the head master to be a graduate of one of the English universities, and in holy orders, and allowing the latter to occupy a house exchanged for certain of the trust estates under Sir Eardley Wilmot's Act (3 & 4 Vict. c. 77). On information, filed in 1849, to vary the schemes in the above particulars, and to set aside the exchange, the Court varied the scheme as to the religious test (without costs) according to the decree in the Warvnch School case (1 Ph. 564; 14 Law J. Eep. (K..s.)Chanc. 338), and dismissed the remainder of the information, with costs. Attorney General v. the Bishop of Worcester, 21 Law J. Kep. (n.s.) Chanc. 25; 9 Hare, 328. A railway company took, for the purposes of their act, a piece of land belonging to the corporation of L, . but over which the freemen of L had certain rights. By one of the railway acts of the company it was enacted that, out of the purchase-money, the costs of the corporation should be paid, and that such a sum should be appropriated for the corporation as the Court of Chancery should, on the application of the corporation, direct, and that the residue should be applied for the permanent benefit of the freemen as the Court of Chancery should, on the same applica- tion, direct, and that notice of such application should be fixed on the door of the town hall. On an appli- cation by petition by the corporation of L for a scheme, — Held, that the freemen of L ought to be repre- sented at the hearing. Ex parte the Mayor, Aldermen, and Citizens of Lincoln, 21 Law J. Eep. (n.s.) Chanc. 621. A testator gave rents and profits to the parson and churchwardens of a parish, to be given and disposed to and among the m est needy and poor people of it, accord- hig to the discretion of the parson and the church- wardens for the time being. By a scheme, half was directed to be applied in maintaining certain schools, and half in peiisions to aged and necessitous parish- ioners. Under the Church Building Act, the parish was divided into thirteen districts, the mother church being one; and the Master directed, in amending the scheme, that the charity estate should be divided among the several districts, and that as the pensions became vacant, the money should be applied by the local incumbents and churchwardens respectively for education of the poor, but so that half the pensions assigned to each district should be retained. One of the Vice Chancellors modified this order by directing that the proceeds of vacant pensions should be at the discretion of the incumbents and churchwardens for education or pensions according to the wants of the districts : — Held, upon appeal, that the view of the Master was correct, and that it was the duty of the Court to have regard to the primary intention of the testator, namely, the benefit of poor and needy persons of the parish. In re Hie Lamheth Chanties, 22 Law J. Rep. (n.s.) Chanc. 959. If a British subject gives a legacy for charitable purposes abroad, this Court will secure the money and appoint trustees of the fund; but though the Court will direct inquiries for its guidance, it will not direct any scheme for effecting the purposes of the testatrix. Attorney General v. Stv/rge, 28 Law J. Kep. (n.s.) Chanc. 495; 19 Beav. 597. The Free Grammar School of C was founded by royal charter of King Edward the Sixth, for the education and instruction of boys and youths in grammar, and endowed with the lands of certain dis- solved chantries. By the charter, the government of the possessions and revenues of the school was vested CHARITY; (F) Administratiok. 133 in four governors, who were incorporated, with perpetual succession, and had power, with the advice of the bishop of the diocese, to make statutes and ordinances for the regulation of the school ; and on the death of a governor, the election of his successor was vested in the survivors, with certain restrictions as to his qualifications. In a scheme for the better regulation of the school, the Court refused to sanc- tion the appointment of a board of trustees to act as a check upon the governors, considering that they had a sufficient check already in the bishop and the Lord Cliancellor as visitor of the school. In re the Clielmsford Grammar School, 24 Law J. Bep. (n.s.) Chanc. 742; 1 Kay & J. 543. Religious instruction is a necessary part of educa- tion in a grammar school; and where there is reason to believe that such instruction was originally intend- ed to be according to the doctrines and principles of the Church of England, it must be according to those doctrines and principles; and the Court will not sanction the insertion of a clause in the scheme ex- empting those scholars whose parents conscientiously object thereto from receiving such instruction. Ibid. Ascheme for theadministration of a charity ordered to stand over for consideration of the Attorney Gene- ral in the first instance. In re Wyersdale School, 10 Hare, App. Ixxiv. Where property was devised in the sixteenth century in trust, to apply the income for the per- petual Bustentation of an almshouse for the comfort, placing and abiding of the poor within the city of R, and to provide six beds to harbour or lodge poor wayfiiring men no longer than one night, to each of whom fourpence was to be paid ; and also in trust to purchase flax, &c. for setting the poor at work according to the 18 Eliz. c. 3; and the income of the property had greatly increased, — Held, that an administration of the charity which made no increase in the number of wayfarers relieved, or in the amount of the viaticum, was not a proper one, and that a scheme ought to be directed upon an informa- tion being filed, although it did not pray relief in respect of the administration of this part of the charity. Attorney General v. the Corporation of MochesUr, 5 De Gex, M. & G. 797. QiUBre — whether the payment (after making pro- vision for poor travellers) of the residue of the in- come to the parish officers in ease of the rates was a proper administration of the charity. Ibid. The revenues of a charity grammar school having increased tenfold, the Court, on a vacancy, restrained the appointment of a new master until something had been settled as to a new scheme. Subsequently liberty was given to appoint a new master, he taking his office subject to any future alterations to be directed by the Court. Attorney General v. the Warden, ct-c. of the Louth Free School, 14 Beav. 201. Part of the property of a foundation school con- sisted of an advowson not producing an income. The Court considered that if the parish were within a reasonable distance and the duties of it light, the living might properly be held by the master or usher; but that not being the case, the advowson was ordered to be sold for the benefit of the charity, which the Court considered it had jurisdiction to order. At- torney General v. the Archbishop of Yorlc, 17 Beav. 435. The statutes of foundation of a school (1548) directed that the rents of the charity property should not be raised above the yearly rents then payable : — Held, that this direction was simply inoperative, and that the most must be made of the property. Ibid. In a school the first object is to provide a proper remuneration for a competent master, and this ought not to be interfered with by the institution of exhi- bitions and scholarships, however useful in them- selves. Ibid. The provisions in the statutes of foundation as to the period of attendance of the master may be modified by the Court in settling a scheme. Ibid. In the absence of express directions, it is not in- cumbent on the schoolmaster to reside in the school- house, provided he lives at a convenient distance — semble. Ibid. In raising costs out of charity property by a mort- gage, the Court is anxious to provide for its extinc-- tion by a sinking fund. Ibid. When the original charter of foundation of a charity does not exist, but copies of it are found in proper places, two of them purporting to be the original charter i/n externa, and one omitting certain trusts found in the other two, the former must be acted on though it appears that the property of the charity was afterwards diminished, and it is alleged that in consequence thereof the visitor, under the authority given by the original charter, may have limited the trusts as shewn in the third copy. Ibid. The Attorney General attends the settlement of a scheme of a charity to protect the interests of all; and the Court refused to allow a member of a corpo- ration, consisting of a master and thirteen brethren, to attend the settlement of a scheme of the charity, even at his own expense. Attorney General v. St. Cross Hospital, 18 Beav. 475. (S) Trustees. (1) Controul over. By a grant of King Edward the Sixth, the College House in Ludlow, and divers estates, were vested in the bailiffs, burgesses, and commonalty (who under the Municipal Corporation Act took the name of the Mayor, Aldermen and Burgesses) of the borough of Ludlow, to continue out of the rents, issues and profits the Grammar School in Ludlow, which was to be kept by one master and one usher. In 1838, the Court of Chancery appointed new trustees of the charity estates, and in 1848 a scheme was settled by the Court for the management of the charity, and it provided " that the trustees should have authority from time to time, upon such grounds as they should in their discretion in the due exercise and execution of the powers and trusts reposed in them deem just, to remove the master, usher, &c. from their or his office." The trustees referred to the powers, and upon inquiry and after several meetings they passed a resolution to remove the master from his office, which they confirmed. Upon an application by the master to restrain the trustees from enforcing the resolution, — Held, that the word " trust " in the scheme superadded to the word " power," was to keep in view that it was a trust, for the execution of which the Court was providing. That the word "trusts," especially when considered with refisrence to the direction to reserve the state- 134 CHARITY; (F) Admikistbatiow. ment of the grounds of remoTal, had the effect of restricting the large meaning which might otherwise be given to the word " discretion." That the regu- lation did not confer upon the trustees an arbitrary power to dismiss the master upon any ground which they might deem just, free from any controul of this Court. That the trusteesare not the only and absolute judges of the sufficiency of the grounds of removal. That the trustees, not having instituted any inquiry in the presence of the master, which might have afforded him the means of explanation and defence, the Court, without determining the right or propriety of the conduct of the trustees, granted an injunction to restrain them from enforcing the resolution of re- moval. Willis V. Childe, 20 Law J. Rep. (m.s.) Chanc. 113; 13 Beav. 117. Real estate was vested in trustees upon trust, that the incumbents of the parishes of A, B, C and I>, and their successors, should employ the rents to and for the maintenance and education and keeping at Oxford of a lad, in order to make him a minister of the Church of England, such lad to be chosen out of one of the said parishes, and of such parents who were not of ability to give him such maintenance and education, in case any such lad could be found in any of the said parishes whom the trustees should think eligible ; but, if not, then from any parish in England or Wales; but in every instance, where a candidate fit or proper in the judgment of the trustees could be found in any of the said parishes, he was to be preferred. A vacancy occurring, there were two candidates, G a native of one of the said parishes, and J a stranger. The trustees elected J. A petition was presented by the father of G and others, praying a declaration that the election of J Weis invalid, and that G ought to have been elected; or that a new election might be had. The affidavits of the trustees stated that on the day of election the cases of J and G were fully and impartially con- sidered by all the trustees, and that in the fair and bond fide exercise of their discretion, without favour or ill-feeling towards any individual or class, they unanimously considered J the proper object for the benefit of the charity ; but no reason was given why G was not considered eligible. The Court, upon appeal, refused to interfere with their discretion. In re Beloved Wilkei's Charity, 20 Law J. Rep, (n.s.) Chanc. 588; 3 Mac. & G. 440. Where, in the exercise of a discretion given to trustees, there appears an absence of indirect motive, an honesty of intention, and a fair consideration of the case, the Court will not examine into the accu- racy of the conclusion come to by the trustees. Trustees are not bound to set forth the particular grounds of selection; and, semble, it is prudent not to do so ; but where reasons are stated which do not justify the conclusion, or where it is admitted that they have acted upon an erroneous principle, the Court will interfere. Ibid. It is the duty of trustees of a charitable founda- tion to give notice of their intention to proceed to an election ; but where the fact was notorious to the parties interested, and it was not shewn that any one was prejudiced by the want of formal notice, the Court overruled the objection. Ibid. A college for the education of Presbyterian Pro- testant Dissenters, governed by u, committee of trustees chosen out of subscribers and donors, and liot fixed to any locality, may be removed, at the discretion of a majority of the trustees, from Man- chester to London, or to such other place as shall be best calculated to advance the objects and design of the institution ; and, notwithstanding such transfer, the rents and income of the trust property may be applied for the institution under the direction of the committee of management. In re the Manchester College, 22 Law J. Rep. (n.s.) Chanc. 571; 16 Beav.eia By letters patent, in 1637, the mayor, recorder, aldermen, and common council of the city of E. were incorporated and constituted the governors of the Hospital of J. and of its lands, revenues and goods, with power to purchase and take other lands, aiad to have a common seal. The recorder was not a member of, though elected by the corporation of the city : — Held, that since the passing of the act 6 & 6 Will. 4. c. 76. the corporation of the hospital was so far identical with the municipal corporation as to be within the spirit, if not the letter, of the 71st section of that act, and therefore (without deciding whether the corporation of the hospital any longer existed, or in whom the legal estate of the hospital lands was vested) that the administra- tion of its trust estates was rightly transferred to the trustees, appointed under that act, of the charitable estates of the municipal corporation. Attorney General v. the Mayor, dec. of Exeter, 2 De Gex, M, & G. 607. (2) Appointment of New Trustees. By an order, the Lord Chancellor, in whom the power of appointing new trustees was vested, referred it to the Master to approve of eight fit and proper persons to be appointed trustees in lieu of those dead or who had left the borough of L, and after his report such further order was to be made as was just. The Master reported that he had approved of eight persons as fit and proper persons to be ap- pointed, &c. This report was confirmed, and in the confirmation the trustees of the charity (naming the said eight persons and the other trustees) were directed to pay the costs of the petition for the appointment of new trustees out of the surplus funds of the charity in their hands. By the private act the property of the trust was vested in the trustees for the time being without any deed of transfer: — Held, that this was a valid appointment of the eight new trustees by the Lord Chancellor. Doe d. Child V. Willis, 20 Law J. Rep. (n.s.) Exch. 8S; S Exch. Rep. 894. In 1671 an estate was purchased out of funds, belonging to a parish, which was conveyed to the rector, churchwardens, and twelve parishioners for the benefit of the poor inhabitants. With some variations, this was managed by the parishioners in vestry. The original deed was lost By a deed dated in 1701 new trustees were appointed, which^ in a recital of the deed of 1671, stated, that when reduced to five the trustees should convey the estate to themselves and eleven other parishioners. New trustees were appointed in 1726, 1769, 1782, and 1806, and the last three deeds contained a pro- viso that the five survivors should nominate new trustees. New trustees were appointed in 1831 and 1842 by the parties acting as trustees: — Held, not- withstanding the usage, that the trustees ought to CHARITY; (F) Administration. 135 have been appointed by the parishionera in vestry assembled, and that the appointments made were invalid. Attorney General v. Dailton, 20 Law J. Eep. (n.s.) Chanc. S69; 13 Beav. 141. The parish of L having been divided into eight distinct districts, special directions were asked under the Church Building Acts, first, that in settling the scheme, the Master might take these circumstances into consideration; and secondly, as the income had to be distributed by the rector and churchwardens, that special directions might be given for the distri- bution of the portion allotted to each district. The first was refused; and it was held, that the second did not require any special direction, as the Master had authority to consider it. Ibid. The Vice Chancellors have jurisdiction to make orders for the appointment of new trustees of muni- cipal charities. In re the Northampton Oharitiea, 22 Law J. Rep. (n.s.) Chanc. 611; 3 De Gex, M. & 6. 179. The Trustee Act, 1850, does not empower the Court to appoint new trustees of charity property, without the consent of the Attorney General, and his fiat is necessary previously to presenting a peti- tion for that purpose. In re RoUe's Charity, 22 Law J. Rep. (n.s.) Chanc. 760; 3 De Gex, M. & G. 760; 10 Hare, App. xxxix. Under the 31st section of the 1 "Will. 4. c. 70. the Vice Chancellors have jurisdiction to appoint new trustees, in the place of the Judges of the Court of Chester, of a charity cast upon such Judges by virtue of their office. In re Rohinson'a Ghwrity, 22 Law J. Eep. (U.S.) Chanc. 841; 3 De Gex, M. & G. 1S8. Appointment of new trustees under the provisions of the Municipal Corporation Act may be made by the Vice Chancellors. In re the Olovxester Chari- ties, 10 Hare, App. iii. As to the number of vacancies in a charity trust which vrill justify an application to the Court. Ibid. Costs of parties appearing on such application for the purpose of aiding the Attorney General, in pursuance of public notice, in securing fit appoint- ments not allowed out of the charity estate. Ibid. Petitions for the appointment of new trustees of charity estates must be entitled in the matter of Sir S. Romilly's Act, and the fiat of the Attorney General must be previously obtained. In re the Sierton Charity Land, 10 Hare, App, xxxviii. (c) Estates. Previously to the 5 & 6 Will. 4. c. 76. the right of presentation to the mastership of St. John's Hospital, with the chapelry of St. Michael annexed, described as a living presentable with cure of souls, was vested in the corporation of Bath. The hospital was instituted for the benefit of the poor of Bath, and the master had the government of the hospital and the distribution of the funds, and the perform- ance of the ecclesiastical duties of the chapel; and the visitation was in the Lord Chancellor, the Master of the Rolls and the bishop of the diocese : .^Held, upon a petition for the appointment of new trustees, that the right of presentation was a here- ditament vested in the corporation as charitable trustees, as ancillary to the charitable objects of the hospital, within the meaning of the 71st section of the 5 & 6 Will. 4. c. 76. In re St. John's Hospital, Bath, 20 Law J. Eep. (n.s.) Chanc. 458; 3 Mac. & G. 235. The Court will sanction the sale of a piece of land, which in 1747 was purchased by trustees with charitable funds and conveyed to them, it being plainly advantageous to the charity. It will also sanction the re-investment of the money in real estate; and the Court will confer upon the trustees powers to perpetuate themselves, as well as to lease the land, there being such powers in the deed con- veying the land to the trustees originally purchasing. Ex parte the Overseen of the Poor of EcclesaU Bier- low, 21 Law J. Rep. (n.s.) Chanc. 729; 16 Beav. 297. Legacy to a Roman Catholic chapel directed to be paid to the trustees' for the necessary repairs of the chapel. De Wvndt v. De Windt, 23 Law J. Rep. (n.s.) Chanc. 776. If a charity is entitled to a particular sum as a first charge on an estate given to certain persons, and the estate is amply sufficient to secm'e payment of that sum, the fact that a portion of the estate has been lost by the alleged negligence of the donees of the estate, will not of itself justify an information on behalf of the charity against such donees. Mayor, &c. of SouthmoUon v. [riety of the decision on this point was questioned by the Judges in the Exchequer Chamber ; but the judg- ment was reversed on other grounds, ideo guwre. In the special act it was enacted, that " it should be lawful for the company to make a line to R, the line in question," and if they shall think fit, " a branch. And that the line to R shall commence at," &c., " and shall terminate at R, and the branch, if the Siime shall be constructed, shall be made," &c. In the act was a power to lease the branch, with the power for making it : — Held, that it was not obliga- tory on the company to make the line to R, the peculiar words of the special act not taking the case out of the general rule. Great Western Rail. Co. v. Regina, 1 E. & B. 874. (/) Making and maintaining Fences, [See AcTioK, (D) (a!).] A railway company is, under 5 & 6 Vict. e. 55. B. 9, bound to keep the gates at the ends of level crossings closed against all persons or cattle upon the highway, whether lawfully there or not, and they are liable to an action for any injury arising from a breach of that duty. Pawcett v. the York and North Midland Rail. Co., 20 Law J. Rep. (n.s.) Q.B. 222; 16 Q.B. Rep. 610. In an action on the case against a railway com- pany for not keeping gates closed across the ends of a highway wliich crossed the railway upon a level, pursuant to S & 6 Vict. c. 55. a. 9, whereby two horses of the plaintiff, "then lawfully being oa the said highway," strayed upon the railway and were killed, the defendants traversed that the horses were lawfully on the highway. It appeared that the horses, having been put into a field of the plaintiff's, the fences of which were suffi- ciently sound for ordinary purposes, had accidentally escaped and got into a public road, and thence along the highway through the gate upon the line of the railway : — Held, that as against the company the horses were lawfully upon the highway. Ibid. Qucere — whether the horses could under these circumstances have been distrained by the owner of the soil of the highway or impounded by the sur- veyor. Ibid. Where the plaintiff's sheep, trespassing on A's close, strayed upon the defendants' railway, which adjoined, through a defect of fences which the defendants were bound as against A to make and maintain, and were killed, — Held, that the plaintiff could not recover either at common law or under the Railways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20.) section 68, or on the ground that the defendants exercised a dangerous trade; the obliga- tion to make and maintain fences, both at common law and by the statute, applying only as against the owners or occupiers of the adjoining close. Ricketts V. the East amd West India Docks and Sirmingham June. Rail. Co., 21 Law J. Rep. (n.s.) C.P. 211; 12 Com. B. Rep. 160. The Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20. 8. 68, which requires a railway company to make sufficient fences "for separating the land taken for the use of the railway from the adjoining lands not taken," imposes on the company the obli- gation of making a fence between the railway land and a public highway which runs alongside of it; The Manchester, Sheffield and lAmcolnshire Raihaaj/ Compamy v. Wcdlis, 23 Law J. Rep. (h.s.) C.P. 85; 14 Com. B. Eep. 243. The liability of the company under this section is the same as it would have been at common law if they had been bound by prescription to repair the fence; that is, that they are only bound to keep up the fence as against the cattle of owners or occupiers of adjoining lands. Therefore, though the owner of cattle lawfully passing or driven along a highway may be considered as an occupier of it, and entitled to recover a compensation from a railway company, whose land adjoins the highway, if through a defect ill the fence between the latter and the railroad occasioned by the negligence of the company's ser- vants his cattle get on the line and are injured; yet if from the same cause such an injury happen to horses when straying on the highway the company are not liable; for the owner of cattle so straying is not in law an occupier of the highway, and conse- quently as against him there is no obligation to maintain the fence. Ibid. COMPANY — RaUway and Incorporated; (G) Powebb, Dciies, &c. 157 {g) On Openi/ng the Lime. It being proposed to form a railway from A through N and G to B, and it being known that the line when open from A to N would compete with and injure the N canal, and when open from N to G would in like manner compete with and injure the G canal, a private act of parliament (9 & 10 Vict. c. clx.) was obtained, which authorized the formation of the whole railway from A to B, and which stated that it was intended that the canals and railway should be worked in connexion, and that the canal companies should be incorporated with the railway company. Section 73. provided that the railway company should be liable to pay to the canal com- panies a specified price per share for all their shares "from and immediately after the opening of the railway between A and G for public use." The railway was afterwards made and opened for a portion only of the space from A to G, namely, from N to G: — Held, (WiUiarns, J. dissentiente) that the opening for public use of any portion of the line between A and G rendered the railway company liable to pay for the canal shares. The Gramtham Carnal Compam/ v. the Ambergate, Nottingham amd Boston and Eastern Jwnction Bail. Co., (in error), 21 Law J. Bep. (n.s.) Q.B. 322. (h) Coverumt to compensate for Lamds. A railway company, who were promoting ia par- liament a bill for an extension of their line, which, if made, would pass through the lands of the plaintiff, covenanted with the plaintiff, "that in the event of the proposed bill passing in the then session of par- liament, the company should, before they should enter upon any of the plaintiff's lands, pay to him 4,900A purchase-money for any portion not exceed- ing forty- three acres, which the company might, under the powers of their act, require and take for the pur- poses of their undertaking; and that, in addition to purchase-money as aforesaid, the company should pay to the plaintiff, before they should enter upon any part of his said land, 7,100i., as landlord's com- pensation for the damage arising to his estate by the severance thereof, in respect of the lands not exceed- ing forty-three acres to be taken by them" : — Held, that the company were not liable to pay either of these sums unless they entered upon some part of the plaintiff's lands. Gage v. the Newmairket Rail. Co., 21 Law J. Rep. (n.s.) Q.B. 398; 18 Q.B. Eep. 457. Held, also, that an absolute covenant to pay these snms to the plaintiff by the company would be ultra vires and void. Ibid. The declaration stated that the defendants were provisional directors of a certain company and pro- moters of a bill in parliament for making a railway from E to P, and that by articles of agreement between them and the plaintiff, it was witnessed, that in consideration of the covenants thereinafter con- tained, the plaintiff covenanted that he would accede to the bill, and the defendants covenanted that in the event of the bill passing into a law, the company should pay him for so much of his land as should be intersected by the railway at the rate of 120/. per acre, and secondly, that they should pay him 3,000/. in full compensation for the general damage which the railway might do to the mansion, park, and estate, including the crossing of the road near the park entrance,, the lowering the road, the obstruction of views, disturbance of privacy of the park, &c., the expense of temporary residence during the progress of the works, the depreciation as a resi- dence, the additional expense in the cultivation of farms by the alteration of the road, and all other damage to be done to the mansion and park. Aver- ment, that the plaintiff did assent to the bill, and the same passed into a law; that the company entered on the plaintiff's lands and cut down trees, &c.,and although seven acres were intersected and severed by the railway, and the park and man- sion deteriorated, yet neither the company nor the defendants had paid the plaintiff 120/. per acre, nor the 3,000/. Fourth plea, that the company did not enter on the plaintiff's land. Fifth, that the quantity of the plaintiff 's land intersected by the railway was not required by the company for the purposes of the railway, nor was it severed from the remainder of the fields: — Held, per Fairke, B. and Piatt, B., that the defendants were bound by their covenant to pay the plaintiff the sum of 3,000/. immediately after the passing of the act, although the railway had not been constructed nor any damage done to the plaintiff's land; dissentiente Pollock, C.B., who held that the plaintiff was not entitled to the 3,000/. until his land should have been taken or some damage done. Blamd v. Crowley, 20 Law J. Eep. (k.s.) Exch. 218; 6 Exch. Rep. 622. ( s ) Making and enforcing Bye-laws. F, being at Colchester and intending to travel by the Eastern Union Railway only as far as the Diss station, purposely applied for and obtained from the company's clerk at the Colchester station, within the borough of Colchester, a ticket for Norwich, and paid the fare demanded to Norwich. The pro- per fare to Diss was 7s., and the fare to Norwich, though nineteen miles further from Colchester than Diss, was, owing to competition, 5s. only. On the arrival of the train at Diss, F got out of the train and delivered his ticket to the collector, and refused to pay the difference of fare to Diss, though demanded by the collector. By one of the company's bye-laws, it was provided that every passenger should pay his fare previously to entering a carriage of the company, upon payment of which he would be fur- nished with a ticket specifying the class of carriage and distance for which the fare was paid, which ticket such passenger was required to shew when requested by a servant of the company, and to deliver up the same before leaving the carriage; and that any passenger who should enter a carriage with- out having paid his fare, or who should refuse to shew or deliver up his ticket when required, was thereby subjected to a penalty not exceeding 40s. Under this bye-law F was convicted, by two .Justices of the borough of Colchester, in a penalty of 10*., for havmg, within the said borough, unlawfully and wilfully entered a carriage of the said company, for the purpose of travelling upon the said railway from Colchester to Diss, not having previously paid his fare for so travelling : — Held, that, supposing F to have committed the alleged offence against the bye- law, it was committed within the borough of Col- chester; but that no such offence had been com- mitted by him, and that the conviction, therefore. 153 COMPANY— iJflj?«oa^ and Incorporated; (G) PowEfiS, Duties, &c. was bad. Regina v. Frere, 24 Law J. Rep. (n.s.) M.C. 68; 4 E. & B. 598. (j) Distraining uncertificated Engines, Declaration for converting a locomotive engine. Pleas : secondly, that because the said engine was wrongfully on the defendants' railway, incumbering the same and doing damage thereto, the defendants seized and took the said engine as a distress for the damage done, and impounded the same, &c. Thirdly, as to the alleged conversion of the said engine, that the plaintiffs brought and continued the said engine upon the defendants' railway without having first obtained a certificate of the defendants' approval of the same, contrary to the statute in such case made and provided; wherefore the defendants removed the same from the railway a reasonable distance to a fit and convenient place, which was the conversion complained of. Replication to the second plea, that the plaintiffs had the said engine in and upon the railway for the purpose of using the same, &c, according to law and under and by virtue of the powers and authorities in them vested by the statutes in that behalf; that the said engine was properly constructed as directed by the acts of par- liament in that behalf; that at and during all the times of their bringing and using the same upon the railway the plaintiffs were ready and willing to pay defendants all lawful tolls, charges and demands. New assignment to the third plea, that the plaintiffs sued, not for the removal or converting to the defen- dants' use or depriving the plaintiffs of the possession of the said engine, as alleged and justified in the said plea, but for that the defendants converted to their own use or wrongfully deprived the plaintiffs of the said engine otherwise than in the said plea mentioned. Rejoinder to the replication, that the plaintiffs had not, before the making of the distress, obtained or applied for a certificate of the defendants' approval of the engine, but brought the same upon the railway without such certificate, contrary, &c. Plea to the new assignment, that the place to which the engine was removed was land in the defendants' possession contiguous to the railway, and that the defendants continued possessed of the railway during, &c. ; that while the engine was staying in the said place in consequence of the removal, the plaintiffs demanded the engine " for the purpose and in order that they, the plaintiffs, might, by the power of the steam of the said engine, move the said engine over and upon the said land of the defendants, towards, unto, to and upon the railway of the defendants, and there again on their said railway place and use the said engine, by the power of its own steam, without having first obtained a certificate of approval as aforesaid," con- trary, &c.; and that, if the defendants had complied with the said demand, the plaintiffs would forthwith have, by the power aforesaid, moved the said engine over and upon the said land, towards, &c. ; where- fore the said defendants, when the said demand was made, and to prevent, &c., refuged to allow the plaintiffs to take possession of the said engine, &c. : Held, upon demurrer, that the common law right of the defendants to seize the engine damage feasant was not taken away by the 116th section of the 8 A: 9 Vict. c. 20, the remedy given by that section being cumulative, and therefore that the second plea was good. The Anibergaie, Nottingham and Boston a/nd Eastern Junction Bail. Co. v. the Mid- land Rail. Co., 23 Law J. Kep. (k.s.) Q.B. 17; 2 E. & B. 793. Held, also, that the plea to the new assignment by reasonable 'Construction meant that the plaintiffs had made the illegal purpose alleged a part of their demand of the engine; and not merely that such purpose rested in intention, and therefore that the plea was good. Ibid. (Jc) Amalgamation. A company for making a railway from Dublin to MuUingar was incorporated by an Act of Parliament passed in July 1845 (8 & 9 Vict. c. cxix.), under the name of " The Midland Great Western Railway Company of Ireland." Some of its directors pro- visionally registered another company for making a railway from Mullingar to Gal way, to be called "The Galway and Mullingar Junction Railway Company." Three months afterwards this name was altered at the Registration OflBoe to " The Mid- land Great Western Railway Company of Ireland (extension from Mullingar to Galway)." Most of the directors of the two companies were the same. L applied for and received scrip certificates in the extension company, and paid deposits thereon, and received receipts headed with the altered name, and signed the shareholders' agreement and parliamen- tary contract. The Midland Great Western pre- sented, in its own name and under its corporate seal, a petition to Parliament for an act to make a rail- way from Mullingar to Galway, undertaking, at its own expense, to make the railway. The act which was passed upon this petition, in July 1846 (9 & 10 Vict. c. ccxxiv.), only gave authority to make the railway from Mullingar to Athlone, or but a part of the distance. The directors had power under the act to raise the necessary sums *' by contributions among themselves or by the admission of other parties." The additional capital required for the extension was directed to form " part of the general and original capital of the company;" and the pro- visions of the recited act (that of 1845) were to ex- tend to and be read with the new act. The expres- sion " The Company," in the new act, was declared to mean the Midland Great Western Company. In September 1846, at a meeting of the directors of the Midland Great Western Company, a resolution was passed stating on what terms the holders of the extension scrip should be entitled to certificates in the joint company, and another resolution approving of and confirming those terms. At that meeting the seal of the Midland Great Western Company was affixed to the shareholders' book, which, however, did not then contain the names of the shareholders in the extension line. The latter were added in March 1847, when one of them, that of the defen- dant, was inserted. Three calls were made ; the first was dated previous to the insertion of the ex- tension subscribers in the shareholders' book, the two others after that insertion. An action was brought for the^e calls : — Held, that the act did not amalgamate the two companies ; and that even if the directors possessed a power of amalgamation, the resolution of September 1846, was not an exer- cise of that power so as to render the defendant li:i hie to an action for any one of the calls at the suit of the Midland Great Western Company. Midland COMPANY— Railway and Incorporated; (G) Powers, Duties, &c. 159 Great Western Raiheay of Irelamd v. ieecA, 3 H.L. Cas. 871. A railvray company aasociating, allying, and con- necting itself with another, does not thereby become equitably " amalgamated" with it. The Shrewstury and Birmingham Rail. Co. v. the Stow- Valley Rail. Co., 2 De Gex, M. & G. 866.'' \ An agreement to amalgamate at from a time past may possibly in equity amount to amalgamation, but an agreement to do so at a future period will not until that period arrives. Ibid. Pending, the progress of a bill through Parliament, authorizing the S. V, Company to lease their line to the N, W. Company, the bill was opposed by the S. B. Company, and upon a compromise a clause was inserted securing to the S. B. Company the use of part of the line and the joint use of a station, subject to the cesser of those rights in the event of the S. B. Railway Company being leased to or amalgamated with a fourth company, viz. the G. W., who were rivals to the N. W. Company. At this time the S. B. Company was under no engagements to the G. W. Company. Subsequently, however, these two companies entered into agreements, giving facilities and preference to each other's traffic, and they agreed to amalgamate at a future time if the sanction of Parliament could be obtained : — Held, that this was not such a change of circumstances produced by the conduct of the S. B. Company as to exclude them from equitable relief by injunction for the en- forcement of the rights of user conferred on them by the act. Ibid. The Court may interfere between two railway companies entitled to the joint use of a station by prescribing regulations for its management, but such interference ought not to take place without grave occasion. The Court may also direct a partition of the station, and appoint a receiver, if necessary. But where provisions exist for the settlement of dis- putes on the above subjects by arbitration, the Court will withhold its interposition until the remedy thus provided has been resorted to. Ibid. (?) Acts of Servants. If a servant of a corporation aggregate commit an assault "by the authority of the corporation, an action of trespass for assault and battery may be maintained against the corporation. It is not necessary that the servant should be authorized to do the act by instru- ment under the seal of the corporation. The East- ern Cowitties Rail. Co. v. Broom (in error), 20 Law J. Rep. (n.s.) Exch. 196; 6 Exch. Rep. 314. If an assault be committed on behalf and for the benefit of a corporation Eiggregate, the corporation may ratify the act of the agent, and if they do so they render themselves liable to an action of trespass for the assault. Ibid. If a servant of a railway company, acting on be- half of the company, assault and imprison a pas- senger to compel him to pay his fare for riding in the carriages of the company, the act of the servant is one which may be for the benefit of the company, and may be ratified by them. Ibid. A railway company, by agreement under seal, en- gaged a contractor to execute the railway, reserving power to the company to watch the progress of the work, and to dismiss any incompetent workmen em- ployed by the contractor. In constructing a via- duct, part of the railway, over a public highway, a stone, through the negligence of the workmen, fell upon the plaintiff's husband, who was passing along the road underneath, and caused his death : — Held, that the company were not liable in an action against them for damages, under the 9 & 10 Vict. c. 93, by the widow and administratrix of the deceased. Reedie v. the London amd North- Western Rail. Co., 20 Law J. Rep. (n.s.) Exch. 65; 4 Exch. Rep. 244. Trespass for false imprisonment. The plaintiff having seen an advertisement of an excursion train from Monk's Ferry to Bangor and back, inquired of the clerk at the Monk's Ferry station, which be- longed to the defendants, as to the return of the train, and was informed that he could return that day by the half-past 7 train. The plaintiff then took a ticket, proceeded to Bangor, and returning thence by train at the time appointed arrived at Chester, where the train stopped. The Chester station was used by the defendants and by other railway companies. A railway servant, who had charge of the train, took the plaintiff's ticket, and informing him that he ought not to have gone by that train, demanded 2s. 6d. more. Payment being refused, the railway servant and the superintendent took the plaintiff into cus- tody. The plaintiff's attorney having written to the secretary of the defendants' company, asking for compensation, received an answer from the secretary, requesting that he might be furnished with the date of the transaction and promising to make inquiries. The secretary also stated verbally that it was an awk- ward business, that the blame would fall upon the station clerk at the Monk's Ferry station, who gave the plaintiff .the false information, and he also offered to return the 2s. Sd.: — Qucere — whether there was evidence for the jury of the railway servant, who made the arrest, being a servant of the defendants. Roe V. the Birhenhsad, Lancashire amd Cheshire Junction Rail. Co., 21 Law J. Rep. (n.s.) Exch. 9; 7 Exch. Rep. 36. But held, that, at all events, there being no proof of the defendants having the power of arresting the plaintiff, there was no evidence of their having ex- pressly or impliedly authorized or ratified the arrest made by the railway servant, and therefore that they were not liable for his tortious act. Ibid. The plaintiff had some quicks which were carried at his expense by the railway company to the N station on their line. By the leave of F, a servant of the company, styled the general superintendent of the railway, the plaintiff put them into a piece of ground of the company's, adjoining the station, to keep them alive. Afterwards, wishing to remove them, he applied to the station clerk, who would not permit him to take them, but referred him to F, who refused to let him have the quicks. He subsequently applied to B, the managing director of the company, and met with a like refusal. The plaintiff there- upon brought trover against the company, but offered no evidence to shew what yiere the respective duties of the general superintendent or managing director of the railway: — Held, that it was the duty of a railway company trading largely as carriers on their line to have some servants authorized to give direc- tion's and act for the company on all occasions as the exigency of the traffic might require; that the jury might therefore infer that the general superintendent and managing director had authority to act for the 160 C0M7ANY— Railway and Incorporated; (G) Powers, Dttties, &c. company in all matters in the course of the ordinary business of the company as carriers. The Taff Vale Mail. Co. V. Giles, 23 Law J. Rep. (n.s.) Q.B. 43 ; 2 E. & B. 822. Held, further (Parhe, B. diibitamte), that the jury might also infer that it was within F's power, aa general superintendent, to grant permission to the plaintiff to put the quicks into the company's land, and that his refusal to deliver them was an act within his ordinary business and bound the company, and amounted to an act of conversion by them. Ibid. (m) Contracts generally. A public company incorporated under act of par- liament cannot generally contract, except in the mode and upon the conditions specified either in the special act or the general act to which it is subject, such as the Companies Clauses Act, 8 & 9 Vict. c. 16. The plaintiff, an engineer, entered into a contract under seal with the "Wolverhampton Waterworks Company for the supply of machinery and the execution of works for the purposes of the company, with certain jirovisions as to extra work. The company was incorporated subject to the general provisions of the 8 & 9 Vict. c. 16; but by the special act, three directors were made a quorum. Much extra work was done by the plaintiff, with the sanction of the engineer of the company, but not according to the provisions of the contract; and after the work was done, and a claim made by him for payment of the price stipulated in the contract, together with a far- ther sum for the extra work, a sum of 1,000Z. was paid to him on the general account; but no proof was given that this payment was made by the order of three directors : — Held, in an action brought to re- cover for the extra work, that there was no evidence to go to the jury of any contract with the company. Homersham v. the Wolverltampton Waterworks Co., 20 Law J. Eep. (k.s.) Exch. 193; 6 Exch. Rep. 137. Qacere — whether upon proof that such payment had been made by order of three directors any con- tract binding on the company would have been im- plied. Ibid. The plaintiff and defendants entered into an agree- ment with a railway company to execute a contract for making a timnel upon a line of railway, called "the Morley contract." The plaintiff then assigned to the defendants all his right and interest in the contract, and the defendants agreed to pay a given sum to the plaintiff upon the completion of the contract. Subsequently, it became necessary to vary the levels, and the defendants agreed with the com- pany to make the tunnel in a different directionfrom that specified in the Morley contract, and upon different terms as to payment : — Held, that the plaintiff had no right to sue the defendants for the sum stipulated to be paid to him by the agreement, as the Morley contract never was completed. Swmphreys v. Jones, 20 Law J. Rep. (n.s.) Exch. 88; .5 Exch. Rep. 952. Where a corporation have actually used and oc- cupied land for the purpose of their incorporation, by the permission of the owner, semble, that they are liable to be sued in assumpsit for use and occupation, notnithstanding they have not entered into a con- tract under their common seal. But in the case of a railway company, sued under the above circumstances, where the 8 Vict. c. 16. 8. 97. (the Companies Clauses Consolidation Act), provides that any contract, which, if made between private persons, would be valid, al- though made by parol only, may be made by parol on behalf of the company by the directors, and shall be binding on the company: — Held, that such a contract might be presumed to have been entered into, and that the company was, therefore, liable to the action. Low v. the London and North- Western Bail. Co., 21 Law J. Rep. (n.s.) CI.B. 361; 18 Q,B. Rep. 632. Although a corporation may be liable in an action for use and occupation of premises, it can only be so for the period of actual occupation, and a continuous occupation for several years will not render the cor- poration tenants from year to year. Finlay v. the Bristol and Exeter Rail. Co., 21 Law J. Rep. (n.s.) Exch. 117; 7 Exch. Rep. 409. A railway company, through their solicitor, hired rooms from the 16th of December 1846 for one year, but occupied them until the 16th of December 1848, previously to which time they removed their furniture and effects, left the keys in the door.s, and paid the rent up to that day, but gave no notice to quit : — Held, that the defendants were not liable in use and occupation for rent subsequently to December 16, 1848. Ibid. The declaration in covenant set out an indenture between the plaintiffs and the defendants, a railway company, which, after reciting that the defendants were desirous of being supplied with 350,000 sleepers of the description in the specification annexed, and that in the specification was stated the times within which, and the port at which they were to be de- livered, contained a covenant by the plaintiffs, that they should and would, within the times and at the place mentioned in the specification, as, and when, and in such quantities as the company's engineer should from time to time, or at any time within the period limited in the specification, direct and require, furnish the company with 350,000 sleepers. The engineer had power to vary the form of the sleepers, and to settle the amount of difference in price to be paid to the plaintiffs in consequence of such altera- tion. It was also stipulated that, if the contractors did not regularly deliver the sleepers, the company might determine the contract by notice. The deed then proceeded, "that the said company will pay to the said contractors, for the said sleepers hereinbefore contracted to be supplied, the price of 4s. 3d. per sleeper, at the time and in the manner hereinafter mentioned :" in effect thus : nothing was to be paid until 2,000i. worth of sleepers had been delivered and certified, and then only the excess in value above 2,000Z.; and the 2,000;. were to paid within two months after the whole of the 350,000 sleepers hereinbefore agreed to be supplied should have been delivered, and a certificate given. The declaration then set out the specification, which stated, " the number of sleepers required under this specification is 350,000; one-half of the sleepers will have to be delivered in 1847, and the remainder by Midsum- mer 1848. The port at which the delivery will have to be made is G." It then stated that the year 1847 and Midsummer 1848 had elapsed; that the plaintiffs were always ready and willing to deliver the sleepers within the times and at the place specified, when and in such quantities as the engineer bhould require : yet that the engineer did not during 1847 COMPANY — Railway and Incorporated; (G) Powees, Duties, &c. 161 give any order touching the delivery of half the sleepers, or by Midsummer 1848 for the other half. Among other pleas, the defendants pleaded that they had no notice or knowledge that the plaintiffs were ready or willing to supply the defendants with the said half of the sleepers. The issue on this plea was found for the defendants : — Held, that this in- denture contained a covenant by the railway com- pany that they would take the whole 350,000 sleepers at the stipulated price before Midsummer 1848, and also that their engineer should give the necessary orders for their delivery within the times limited by the specification. The Great Northerfu Rail. Co. V. Harrison (in error), 22 Law J. Rep. (n.s.) C.P. 49; 12 Com. B. Rep. 576: affirming Harrison v. the Great Northern Sail. Co., 21 Law J. Rep. (n s.) C.P. 89. Held, further, that the plaintiffs were entitled to judgment non obstwnte veredicto on the issue on the plea that the defendants had no notice of the plain- tiffs' readiness and willingness, as the plaintiffs were not bound to be ready and willing until they had orders from the engineer to deliver any sleepers, and need not have alleged that they were ready and willing, and that consequently notice to the defen- dants that they were ready and willing was not necessary. Ibid. A clerk in the office of the engineer to a railway company made a contract with the plaintiffs for the purchase of a number of railway sleepers upon certain terms. The sleepers were taken by a carrier employed by the company to the railway, and used upon the railway. There was a subsequent cor- respondence between the plaintiffs and another clerk of the company as to the right of the company to a set-off, but their liability for the sleepers was not disputed : — Held, that there was evidence to go to the jury that the directors had contracted by parol to take the goods upon the terms of the clerk's con- tract, and that the company were, therefore, liable under the provisions of the 8 & 9 Vict. c. 16. s. 97. PoAiMmg V. the London amd North- Western Rail. Co., 23 Law J. Rep. (n.s.) Exch. 105; 8 Exch. Rep. 867. A railway company were empowered by act of parliament to make a railway, which was intended to cross the navigable river Wensum by a swivel bridge, according to deposited plans. Owing to en- gineering difficulties, it waa found inconvenient to cross the river at the place pointed out in the de- posited plans, and another site was selected; and the consent of the Admiralty and of the owners of the adjoining lands being obtained, the works were com- menced and a centre pier to support the bridge was placed in the bed of the river. The corporation and inhabitants of Norwich preferred an indictment against the company for a nuisance in erecting the pier in the bed of the *iver, to which the defendants pleaded not guilty; and thereupon, in order to put an end to all disputes, the parties entered into an agreement, under seal, dated the 25 th of March 1847, which provided that the parties prosecuting, so fer as they were interested, should permit the pier to remain on the new site, and, in consideration thereof, the company covenanted to excavate to a certain depth the north bank of the river, and dredge and cleanse to the same depth another part of the river, so as to form a navigable channel of a certain DiOEST, 1850—1855. depth on the north side of the pier. The coinpany also covenanted to use their best endeavours to obtain an act of parliament to sanction and confirm the agreement, tlie said corporation-undertaking, on their part, to do all reasonable acts to aid the com- pany in obtaining the act The agreement further provided, that if the said pier and the works con- nected therewith were continued and completed without interruption or impediment by or at the instance of the parties prosecuting the indictment, then, whether the said act of parliament should be obtained or not, if the said works to be performed by or on the part of the company should not be completed, to the reasonable satisfaction of the engineer for the time being of the said corporation, within the space of twelve calendar months from the date of the said agreement, then and in such case the company would, on demand, forfeit and pay to the said corporation 1,000^., to be recovered as liquidated damages. Upon this agreement, the corporation of Norwich brought an action against the company to recover the said sum of 1,000Z., alleging, as a breach, the non-completion of the works within twelve months to the reasonable satis- faction of the engineer of the corporation. The defendants, in their plea, set out the agreement, and then averred that the said agreement was entered into before the passing of the company's Railway Alteration Act, 1847; that the river Wensum had been from time immemorial a public navigable river; that the said pier was a public and common nuisance and an obstruction to the navigation ; and that, at the time of making the said agreement, neither the said pier nor the proposed works in connection therewith were authorized by act of parliament. Replications: First, that the said pier and bridge were works necessary to be so erected and placed, and to be executed and completed, for the purpose of making and constructing the railway authorized to be made and constructed by the company's act, 1845. Secondly, that the said agreement was men- tioned and described in the company's Railway • Alteration Act, 1847, and that the said pier, bridge and works w^re mentioned and referred to in and by the said act, and that the said act was obtained within such time after the agreement as to leave to the defendants a sufficient time after the passing of the said act for completing, within the time men- tioned in the said agreement, the said works so agreed to be performed, as in the said agreement was mentioned : — Held, upon demurrer, by Lord CamipbeU, C.J. and Wightmam, J., that as, at the time when the agreement was entered into, the works absolutely contracted to be executed were connected with the completion of the new pier, which then was a public nuisance, and as the obtaining an enabling act of parliament was not made by the agreement a condition of the execution and com- pletion of such works, the agreement was illegal and void, and that upon the pleadings, the defendants were entitled to succeed. By Lord Campbell, C.J., that the agreement being for the construction and completion of a public nuisance, and therefore illegal, could have no validity given to it by reason of the covenant in the deed to obtain an act of par- liament to authorize the construction of the illegal works; that the works agreed to be done on the part of the directors of the Company were vll/ra vires to Y 162 COMPANY — Railway and Incorporated; (G) Powers, Duties, &c. the knowledge of the covenanteea; and on that groundj^ also, the defendants were entitled to judg- ment upon the plea. By Coleridge, J. and Erie, J., that, by the agreement declared upon, the parties did not absolutely contract for the unlawful obstruc- tion of a public highway without obtaining an act of parliament, so as to render the contract illegal and void; that the contract between the parties, as it appeared from the agreement itself, to which alone upon the pleadings the Court could look, was not necessarily unconnected with the purpose of the company's incorporation; but, on the contrary, it might, consistently with the pleadings, have been essential to, and it did tend to effect the main pur- pose of such incorporation; that the agreement, therefore, could not be considered ulira vires on the part of the directors of the company, though such purpose was agreed to be effected by means different from those at first authorized to be adopted, and upon both grounds the plea was no answer to the plaintiffs' claim. By Lord Campbell, C.J., Cole- ridge^ J. and Wightman, J., that the rephcations affiirded no answer to the plea, and were bad in substance. T!ie Mayor, &c. of Norwich v. the Norfolk Rail. Co., 24 Law J. Rep. (N.a.) Q.B. 105; 4 E. & B. 397. A provisionally registered railway company entered into an agreement with two canal companies, estab- lished by acts of parliament, for the purchase of their shares and property; and in the document it was provided that certain members of the provisional committee ofthe railway company should pay down, or procure to be paid down, the sum of 10,000/,, to be held upon trust, until the railway act should be obtained, in taking transfers of the bonds or mort- gages of the canal companies, and the remaining amount of the purchase-money, within certain stated times, amounting altogether to 50,000/.; it was also further declared, that the purchase-money should be provided by the thereunder signed six members of the provisional committee out of their own monies, or they should procure the same to be paid as afore- said, so that the canal companies should not be affected by any special trusts or liabilities which might attach to the paid-up capital of the railway company. This agreement was executed by the six, on behalf of the railway company, and by persons specially appointed by the canal companies. Three of the six provisional committee-men signed a cheque for the 10,000/., and with the concurrence of the other three handed it to a trustee for the canal companies, and the money was paid by the trustees of the railway company, which company was ordered to be wound up, and the Master authorized one of the shareholders to file a bill against the canal com- panies for the recovery of the 10,000/. : — Held, affirming the decision of one of the Vice Chancellors, that the agreement was unauthorized, and one which could not be entered into without the sanction of parliament; that the 10,000/. was trust money of the railway company, and not the private monies of the six provisional committee-men; that the canal companies, receiving the cheque as they did, and receiving the money for the cheque from the bankers of the railway company, took the 10,000/. impressed with a trust, and with notice of its being trust money, and were therefore bound to refund it. Bryson v. the Warwick and Birmingham Ca'nM Namgation Co., 23 Law J. Eep. (n.s.) Chanc. 133; 4 De Gex, M. & G. 711: affirming 1 Sm. & G. 447. Held, also, on the constitution of the suit, that the plaintiff was authorized to file the bill on behalf of himself and the other shareholders of the railway company, he having been duly authorized by the Master to institute the suit ; the 60th section of the Winding-up Act, 1848, controuling the 29th and 50th sections of the same statute. Ibid. The Shrewsbury and Birmingham Railway Com- pany opposed a bill brought into parliament by the London and North-Western Railway Company, seeking to authorize a lease to that company of the Shropshire Union Railway then in progress, and an agreement in writing was made between the two companies, that in consideration of the withdrawal of opposition by the Shrewsbury Company, an account should be kept of the profits from traffic on the Shrewsbury and Shropshire lines, and the same should be divided in stated proportions. The oppo- sition was withdrawn, and the bill passed, and when passed the agreement was re-executed under seal. The act recited three other acts, one only of which had relation to the agreement between the Shrews- bury and North-Western Companies. By the 5th section, on the completion of the works of the three lines of railways by the recited acts authorized to be made so as to be opened for public traffic, or at such other period as might be agreed upon, the Shropshire Company were empowered to grant to the North- Western Company a lease in perpetuity of the undertaking. Ry the 11th section it was enacted, that as each line of railway should be completed, the same should be worked and used by the North- Western Company, and for the purpose of such working, that company were to exercise the powers before given to the Shropshire Company in relation to every such completed railway. In other parts of the act, the authority to lease was referred to as "lease of the said railways" and " making of such lease." The Shrewsbury Company filed a bill for the specific performance of the agreement:- — Held, upon an appeal of the Shrewsbury Company against a dismissal of their bill that the directors of the North-Western Railway Company were trustees for their shareholders, and that their entering into such a contract was a breach of trust as between them and the shareholders as creating a partnership be- tween the North-Western and the Shrewsbury Companies, determinable only at the option of the latter, which varied the rights of the North-Western Company's shareholders in the gross receipta of their business, and that the Shrewsbury Company knowingly participated in such breach of trust. The Shrewsbury and Birmingham Rail. Co. V. the London and North-Western cmd Shrop- shire Union Rails, and Carnal Co.; and the London and North-Western Rail. Co. and the Shropshire Union Rails, and Canal Co. v. the Shrewsbv/ry and Birmingham Rail. Co., 22 Law J. Rep. (n.s.) Chanc. 682; 4 De Gex, M. & 6. US; 16 Beav. 441. Held, further, that parliament having, with a view to the puWic good, authorized the construction of large bodies, acting by directors, with special and limited powers, and for certain specified purposes, and for the protection of the public, and the contract being to alienate the tolls of a given portion of the COMPAViY—Itailway and Incoporated ; (G) Poweks, Duties, &c. 163 Kne, Bucli contract was contrary to the authority given by parliament, and was againat public policy. Ibid. Held, thirdly, therefore, that a Court of equity could not lend its assistance to enforce the specific performance of the contract, whether it were valid or invalid at law, and that the appeal against the dismissal of the bill must be dismissed, but without costs, and the cross-appeal must be dismissed, with costs. Ibid. Semhle — (one of the Lords Justices ditfering from the Master of the Rolls and agreeing with Lord Cottenham) that if the case had rested simply on the point, whether the contract had come into operation, the Shrewsbury Company would have been entitled to relief, although the three lines were not all com- pleted. Ibid. Heads of a proposed agreement were arranged between the directors of two railway companies, by which one company was to allow the other company for ninety-nine years to work the line, and use the pro- perty and plant of the granting company, except certain specified lands and buildings, upon certain terms of allowance for working expenses and charges, aiid the maintenance of works and ways, the pro- perty and plant to be restored on the termination of the agreement on terms of profitable return to the granting company, and provision was made for application to parliament for powers if needful. On a bill by a shareholder in the granting company on behalf of himself and all other the shareholders in that company, except the directors, against that company and the other company: — Held, first, that the proposed agreement was a delegation of some of the statutory powers of one of the companies to the other, which was contrary to the policy of their acta, and could neither be granted nor accepted without further powers from parliament; that it was a contract savouring of illegality, which at the suit of any shareholder this Court would restrain, and the Court, on motion, restrained the company from perfecting the agreement. Secondly, that such an agreement is not distinguishable on principle from a lease or grant, which is clearly not within the statu- tory powers of the granting company. Thirdly, that the 87th section of the Railways Clauses Con- solidation Act merely gives to one company a limited power to run a portion of its traffic only when itisnecessary forthepurposeof itsown traffie,overthe line of another railway company. Fourthly, that an agreement for an application to parliament for powers necessary to enter into the above terms, and upon a stipulation that they should not be acted upon until the necessary powers should have been obtained, would be lawful and would not be restrained. Fifthly, that the suit being by one shareholder on behalf of himself and the other shareholders in the granting company against that company, and the other com- pany proposing to enter into an illegal agreement, without making any directors or other persons par- ties seeking an injunction against the granting com- pany to restrain them from perfecting the agreement, was properly framed. Wmch v. Birkenhead, Lan- cashire and Cheshire JimcUon Mail, Co., 5 De 6ex & Sm. 562. («) Traffic wihd Toll Agreements. "By an agreement between the Manchester and Bolton Railway Company and the Bury and Rossen- dale Railway Company, it was agreed, first, that the M. and B. Company would concur, at the expense of the B. and R. Company, in obtaining an act of parliament in the ensuing session for a line of rail- way from the M. and B. Railway to Bury and Rawtenstall; secondly, that the B. and R. Company should have the use of the M. and B. Company's station at Salford, but not to impede the M. and B. Company's traffic, paying such charge for such requisite additional accommodation to the same arising from the traffic of the B. and R. Company, as three indifferent persons to whom it should be referred in the usual way should determine; thirdly, that the traffic of the Manchester, Bury and Rossen- dale Railway Company, whether of passengers, merchandise or coals (that is, traffic using both lines or any portion thereof), between Salford and Rawten- stall, or any points intermediate to these, should be carried on, as it respects engine power and carriages, clerks, porters and all other expenses (except the maintenance of the M. and B. Railway) at the costs and charge of the B. and R. Company, who should pay to the M. and B. Company, for the use of their railway and in respect of the traffic herein specified, a jaro raid proportion, according to the distance passed over the two lines respectively, of all and singular the gross rates, tolls and proceeds arising from the said traffic. The agreement then set out the proportion. The B.-and R. Company were incorporated first as the Manchester, Bury and Rossendale Railway Company, and afterwards, their line being greatly extended and other companies being amalgamated with them, they became the East Lancashire Railway Company, the defendants below. The M. and B. Company became the Lan- cashire and Yorkshire Railway Company, the plain- tiffs below. After the defendants below had thus extended their lines and changed their name, the plaintiffs below confirmed the original agreement by a subsequent deed : — Held, that the East Lancashire Railway Company were not limited by the agree- ment in the use of the Lancashire and Yorkshire Railway Company's line and stations on the terms specified in the agreement to traffic beginning on some part of the B. and R. Company's original line on its way to Manchester and ending on some part of it on its way from Manchester; but that it ex- tended to all traffic that passed over the original line from or to Manchester, whether its transit com- menced or ended on any part of the original line, or whether it came from or went to any station upon any part of the new and extension lines. The East Lajncashire Rail. Co. v. the Lancashire and York- shire Rail. Co. (in error), 23 Law J. Rep. (n.s.) Exch. 157; 9 Exch. Rep. 591: reversing TAe iomcosAM-e and Yorkshire Rail. Co. v. the East Lancashire Rail. Co., 21 Law J. Rep. (n.s.) Exch. 62; 7 Exch. Rep. 126. The Great Northern Railway Company and the South Yorkshire Railway Company entered into a iondjide contract by deed, by which it was provided that the Great Northern Railway Company, the de- fendants below, might for twenty-one years pass over the railways of the South Yorkshire Railway, the plaintiffs below, and have free use of their works and conveniences for the purpose of carrying coal, upon payment of certain tolls and under certain 164 COMPANY— iJai/eeos/ and Incorporated; (G) PowEBB, DuriES, &c. conditions, that is to say, when the quantity of coal carried over any part of the plaintiffs' railways to the defendants' railway, and then south of Doncaster, together with the quantity of coal carried over any part of the plaintiffs' railways by or for the defen- dants, or by any arrangement with them to any other railway for transit to the south of Sheffield or Ro- therham, should not amount to 125,000 tons in the period of six calendar months, then the defendants should pay to the plaintiffs such tolls for such period of six calendar months aa would, with any clear profit which might be made by the plaintiffs for the same period, after payment of all annual and half- yearly charges for interest and outgoings, and all expenses of management or otherwise, be sufficient to enable the plaintiffs to pay such dividends as might become payable in respect of any guaranteed or preference stock of the plaintiffs already issued, or hereafter to be issued, with the consent of the defendants, and also a clear net dividend at the rate of Zl. per centum per annum, for such period of six calendar months, upon the ordinary capital stock for the time being of the plaintiffs, then called up, or thereafter to be called up, with the consent of the defendants ; and when the quantity of coal for any such period of six calendar months should exceed 125,000 tons and not 150,000 tons, such sum as would make up in manner before mentioned the di- vidend upon the preference stock and 3/. 6s, per cent, upon the ordinary stock; and when the quan- tity of coal during the like period of six calendar months should exceed 150,000 tons and not 175,000 tons, such sum as would make up in the like manner the dividend upon the preference stock, and 3?. 10s. per cent, on the ordinary stock; and so on progres- sively, up to the carriage of upwards of 400,000 tons during any such period of six calendar months, in which case the defendants are to pay the plaintiffs such sum as, together with the clear pro6t8 made by the plaintiffs during the same period, would pay the dividend upon the preference stock, and 6Z. per cent, upon the ordinary stock. It was also provided that if the payment made by the defendants for any pe- riod of six months once made up 4/. lOs. per cent, on the ordinary stock of the plaintiffs, it should never afterwards cease: — Held, in an action to recover the siim payable under the contract, that this was a legal contract, and not beyond the powers of the re- spective companies, the payments to be made being tolls within the meaning of that word in the 87th section of the Eailwavs Clauses Consolidation Act, 8 Vict. c. 20. The Great Northern Rail. Co. v. the South Yorhshire Hail, and River Dun Co. (in error), 23 Law J. Rep. (N.a.) Exch. 186; 9 Exch. Rep. 642 : in the court below, 22 Law J. Rep.(N.s.) Exch. 305; 9 Exch. Rep. 55. Two directors of a railway company (the plaintiffs) met two directors of another railway company (the defendants), and entered into an agreement in writing, signed by all four of the directors on behalf of their respective companies, whereby it was mutually agreed that each of the companies should interchangeably use the railway of the other company on certain spe- cified terms. The agreement contained no words of succession or of restriction : — Held, that these con- tracts were not mere licences determinable at will, but conferred rights of a permanent nature on the companies. The Great Northern Rail. Co. v. the Mamchester, Sheffield and LvncoVmhire Rail. Co., 5 Oe Gex & Sm. 138. Held also, that the terms of the contract were not too vague, but that the user conceded was one con- sistent with the proper enjoyment of the railway, the subject-matter of the contract, and with the rights of the granting party. Ibid. Held also, that this Court will grant an injunction restraining the defendants from acting contrary to a negative agreement, although it "cannot specifically enforce the performance of the whole of the agree- ment. Ibid. By certain articles of agreement made between the S. and B. Railway Company, the L. and N.- W. Rail- way Company and the S. U. Railway, reciting that the S. and B. Railway Company had agreed to withdraw their opposition to a bill before parliament for authorizing a lease of the S. U. Railway Com- pany to the L. and N.-W. Railway Company, and that it had been mutually agreed by the three com- panies that the covenants thereinafter contained should be mutually entered into by them, on an act being obtained for authorizing such lease, it was wit- nessed (inter alia) that during the continuance of such lease separate accounts should be kept of all passengers, &c. conveyed on the S. and B. and S. U. Railway lines; and that the money received in re- spect of such traffic should be divided between the three companies in certain proportions; and further, that during the continuance of such lease the L. and N.-W. and S. U. Railway Companies would not carry any passengers, goods, &c., or other matters and things between certain points, nor would use a certain portion of the S. U. Railway line to compete for any traffic which properly belonged to the S. and B. Railway : — Held, first, that this agreement was not void as a fraud upon the legislature. Secondly, that it was not illegal as giving a monopoly, and de- priving the public of the benefit of competition. Thirdly, that the stipulation to divide the profits was not a fraud upon the shareholders of the respective companies. Fourthly, that the clause restraining the carriage of passengers, &c. on the S. U. Railway line was not contrary to the 1 & 2 Vict. c. 98. and the 7 & 8 Vict. c. 85. providing for the conveyance of mails and troops on railways; ani,semble — that such traffic was impliedly excepted out of the restraining clause. The Shrewsbury and Birmingham Rail. Co. V. the London amd North-Weatem Rail. Co., 21 Law J. Rep. (n.s.) a.B. 89 ; 17 Q.B. Rep. 652. A further clause of the articles provided "That the agreement thereby come to should not in any manner be evaded or eluded by either of the con- tracting parties, nor should any arrangement, scheme, device or contrivance be resorted to or attempted for that purpose": — Held, that this clause was indepen- dent of the existence of a lease, and that a breach was well assigned upon it, without averring the granting of any such lease. Ibid. The defendants, a railway company, agreed with the plaintiff's to carry coals from U to K, and to find waggons, the Y. and B. Company undertaking to haul the waggons to and fro between U and Y, and the contract was founded on the basis that there should be no unreasonable detention of waggons, whether empty or full, between Y and U : — Held, that the neglect and refusal by the Y. and B. Com- pany to haul between U and Y was an answer to an COMFA'NY—Railwat/ and Incorporated; (G) Powers, Duties, &c. 165 action by the plaintifiF against the defendants for neglecting and refusing to carry from U to K. Jo- nassohn v. Great Northern Sail. Co., 24 Law J. Rep. (h.s.) Exch. 31; 10 Exch. Rep. 434. (o) Leoivng amd working Contracts. The plaintiffs having obtained an act authorizing them to make a railway from L to meet the L. and B. and G. W. Railways at H Green, it was after- wards, by an agreement beween the plaintiffs and the G. W. Railway Company, agreed that the G. W. Railway Company should be allowed to carry their railway (which it was proposed to extend) across the course of the plaintiffs' intended railway on a level (the soil of the land at the crossing belonging to the plaintiffs) ; and by the agreement the G. W. Railway Company, among other things, covenanted to construct a railway station at the point of junc- tion, and to stop their trains at that station to meet corresponding trains of the plaintiffs, for the purpose of transferring passengers and goods. This agree- ment was afterwards noticed and treated as binding by an act of parliament. Subsequently, and after both railways were made, an act was obtained, which, reciting that the plaintiffs' railway could not be worked as a separate and independent railway with advantage to the proprietors, but that it might be worked and used in connexion with the L. and B. Railway and G. W. Railway, or either of them, by their respective companies, empowered the plain- tiffs to lease their railway, stations, and all their rights, powers, and privileges to the L. and B. Rail- way Company. Pursuant to this act the plaintiffs leased to the L. and B. Railway Company their railway, stations, and all their rights, powers, and privileges in relation thereto for 999 years, on the terras that the L. and B. Railway Company should pay them, besides a gross sum down, one-fourth of the gross receipts in respect of passengers, goods, and other things carried on the plaintiffs' line, and one- half of the net profits of the rates and tolls received for the use of the line ; and the L. and B. Railway Company covenanted that they would, "at their own expense, during the continuance of the lease, efficiently work amd repair the railway amd works demised, and indemnify the plaintiffs against all lia- bilities. Josses, charges and expenses, claims and de- mands, whether incurred or sustained in consequence of any want of repair or in consequence of not work- ing, or in any manner connected with the working of the same railway and works; but that the plaintiffs should have no controul whatever over the working or management by the L. and B. Railway Company of the plaintiffs' railway or works." The rights and liabilities of the L. and B. Railway Company having been, by statute, transferred to the defendants, the plaintiffs sued the latter on this covenant. The ma- terial breach was, that the defendants did not effi- ciently work the said railway. It appeared on the trial that the plaintiffs had worked their line pre- viously to the lease, both for passenger and goods traffic, but only in a slight degree and at a loss ; that since the lease it had never been worked for passen- gers, but only for goods traffic; that it had never been worked in connexion with trains on the G. W. or the defendants' lines; but evidence was given to shew that if passenger trains were run on the demised line in connexion with trains on the G. W. and the defendants' lines, passenger traffic would have pre- sented itself. By a clause in the local act, if the plaintiffs' railway ceased for three years after com- pletion to be worked and used as a railway, the land and soil of the railway was to vest in the adjoining landowners; and a second local act provided that, imder such circumstances, the piece of land at the point of intersection of the G. W. Railway and the plaintiffs' land was, on tender of the purchase-money, by the G. W. Railway Company, to vest in that company ; — Held, that the covenant sued upon was not a mere covenant to indemnify the plaintiffs against any loss or forfeiture in consequence of not working the railway, but that the object of the cove- nant was efficiently to work so as to secure the stipu- lated benefit to the plaintiffs in the gross receipts, and efficiently to repair so as to give them a chance of a share in the net profits; though the defendants were not bound to work the railway in such a man- ner as to produce the largest quantity of gross re- ceipts, but only to use a fair and reasonable mode of working it to make it productive. The West Lon- don Rail. Co. 1. the London am.d North-Western Sail. Co. (in error), 22 Law J. Rep. (n.s.) C.P. 117; 11 Com. B. Rep. 327. Held, next {disstntientibus Piatt, B. and Mg/rtin, £.), that the defendants were not, under all circum- stances, bound to work the line for passenger traffic, even though passenger traffic presented itself, and that the covenant would be fulfilled if, by efficiently working the railway for goods traffic only, as large an amouut of gross receipts could be obtained as by the carriage of passengers or of passengers and goods. Ibid. Held, also, that the burden and benefit of the agreement with the G. W. Railway Company to stop their trains, ran with the plaintiffs' land and passed to the defendants as assignees of the plaintiffs' estate, probably at common law, and, at all events, by virtue of the leasing act and the terms of the lease; consequently, that the defendants had power to compel the G. W. Railway Company to stop their trains to meet trains on the plaintiffs' line; but that the defendants were not bound necessarily to exercise this power in order to the efficient working of the plaintiffs' line. Ibid. Held, further, that the defendants were not neces- sarily bound to work the plaintiffs' hne in connexion with their own or the 6. W. line; though, prac- tically, it could hardly be worked efficiently without connexion with one or the other. Ibid. Held, lastly, that, in estimating the liability of the defendants, the jury ought not to treat them as if they were lessees of a separate and independent line, having no controul over any other line; but that the measure of efficient working ought to be greater in the case of the defendants, as they had entire con- troul over their own line, and had a power of adding to the traffic by a certain controul which they had over the 6. W. line, and as their capabilities and powers in this respect were reasons which disposed parliament to permit the lease to be made to them. Ibid. In 1846 the R. Railway Company proposed to make a railway from the plaintiffs' railway to the defendants' railway. For part of the distance, the proposed line ran in nearly the same course as part of a branch line at the same timeproposed to be made by 166 COMPANY — Railway and Incorporated, thedefendants. It was consequently arranged that the defendants should make their branch line, but that the R. Railway Company should have power to run over the specified portion of it, upon such terms as might be agreed upon between the defendants and the R. Railway Company. This arrangement was sanctioned by parliament in a clause in the defen- dants' act for making the branch line, which passed on the same day with the act authorizing the R. Rail- way Company to make the rest of their proposed line. The latter act empowered the R. Railway Company to lease their line to the plaintifft. In 1847, an agreement was entered into between the R. Railway Company and the defendants, to the effect that the R. Railway Company should have the right in perpetuity of using for their traffic the above-mentioned portion of railway on certain speci- fied terms. Subsequently, in 1860, the R. Railway Company leased their railway, and all their powers and privileges, and all the benefit and advantage to be derived from the agreement of 1847, to the plain- tiffs for 1,000 years, subject to the obligations and liabilities of the R. Railway Company ; — Held, that by virtue of the special acts and the Railways Clauses Consolidation Act, 1845, incorporated there- with, and the lease, the plaintiffs were entitled as against the defendants to the benefit of the agree- ment of 1847, and to stand in respect of it in the place of the R. Railway Company. The London and South- Western Sail. Co. v. the SowtJi-Eastern Bail. Oo. (in error), 22 Law J. Rep. (h.s.) Exch. 193; 8 Exch. Rep. S84. In consideration of the S. and B. Railway Com- pany withdrawing their opposition to a bill brought into parliament by the L. and N. W. Railway Company, to enable the latter to take a lease of the undertaking of the S. U. Railways and Canal Com- pany, the three companies entered into an agreement to keep a mutual account of the traffic of the S. and B. Railway and the S. U. Railway lines, and to divide the property between them in certain proportions; and that the L. and N. W. Railway Company should not use the lines to be leased to them so as to com- pete for any traffic which properly belonged to the S. and B. Railway Company; the opposition was with- drawn, and the bill passed : — Held, upon demurrer, that such an agreement was not a fraud upon parlia- ment, nor inconsistent with the duties which the directors of the several companies owed either to the public or their constituents. The Shrewsbury and Birmingham Rail. Co. v. the London and North- Wettern Sail. Co., the Shropshire Union Rails, and Canal Co. amd 0. C. Olyn and W. Cowan, 20 Law J. Rep. (N.s.) Chanc. 90; 3 Mac. & G. 70. By an act of parliament reciting three previous acts, the L. and N. W. Railway Company were em- powered, on the completion of the works of the three railways by the said recited acts authorized to be made, so as to be opened for public traffic, or at such earlier period as might be agreed upon, to accept a lease in perpetuity of the undertaking; and it was provided that, upon the completion of the under- taking, the same should be worked by the L. and N. W. Railway Company consistently with the pro- visions of the act and the lease to be granted in pur- suance thereof; and that the said L. and N. W. Railway Company should have all the powers in relation to every such completed railway as were given to the S. U. Railway Company by the act authorizing the formation thereof. The act then provided for the computation of the rent to be paid on each of the said railways when completed in suc- cession, until the lease should be executed : — Held, that upon the true construction of the act, the rela- tion of landlord and tenant, with its respective bene- fits and liabilities, arose as and when each line was completed, notwithstanding the lease could not be executed until the whole of the undertaking was completed. Ibid. An injunction, granted upon motion, by the Court below, restraining the defendants from using the lines leased to the L. and N. W. Railway Com- pany, so as to compete with the traffic properly belonging to the plaintiffs' line, was dissolved, upon appeal, with liberty to the plaintiffs to bring an action at law for breach of the agreement, the plaintiffs and the defendants mutually undertaking at the same time to keep an account of the traffic on their respec- tive lines. Ibid. Upon motion, by way of appeal, to dissolve an injunction, granted upon affidavits before answer, the answer subsequently filed was used; the Court, on dissolving the injunction, refused to give the defen- dants the costs of the appeal motion. Ibid. (H) PowEEs, Duties and Liabilities of Directors. A dkector of a railway company is a trustee; and, as such, is precluded from dealing, on behalf of the company, with himself, or with a firm of which he is a partner. The Aberdeen Rail. Co. v. Blackie, 1 Macq. H.L. Cas. 461. A contract entered into with a railway company by a director is not void under the 8 & 9 Vict. c. 16. ss. 85. and 86, though it disqualifies the director. Forster v. the Oxford, Worcester amd Wolverha/mp- ton Sail. Co., 22 Law J. Rep. (n.s.) C.P. 99; 13 Com. B. Rep. 200. The directors of the South Devon Railway Com- pany introduced two bills into parliament on behalf of the company, which it was alleged would have the effect of altering the existing and established rights of the shareholders as between themselves. They con- sisted of two classes, the holders of original or whole shares, and the holders of half or preferential or gua- ranteed shares. Uponabillfiled by a holder of original shares, alleging that the bills introduced into parlia- ment would vary the terms upon which the half shares were created, and that it would give a benefit to the holders of the half shares at the expense and to the loss of the holders of the whole shares : — Held, that the application to parliament by the di- rectors to authorize the scheme was not a breach of trust or duty to the company; and, the defendants undertaking to be answerable for the costs, the Court refused to restrain the directors from using the name and seal of the company for introducing or prose- cuting the bills in parliament; but it restrained the directors from applying the funds of the company in payment of the costs of the bills so far as they sought to alter the relative rights of the shareholders. Stevens V. the South Devon Rail. Co., 20 Law J. Rep. (n.s.) Chanc. 491; 13 Beav. 48. A scripholder of an abortive railway scheme re- ceived a pro raid dividend on his shares, and received new certificates in lieu of the original. He after- COMPANY— iiafcoy and Incorporated. 167 wards received a further aiid final dividend, sur- rendered up the new certificates, and signed a memorandum to release the provisional directors from all claims. Upon bill filed by the scripholder, on behalf of himself and all the other scrip and share- holders and subscribers (except the defendants), against the provisional directors, secretary and clerk, to refund certain sums paid by them in respect of dividends on certain alleged spurious scrip : — Held, that the bill was not sustainable; that the plaintiff could not undo the contracts entered into with the directors, and retain the dividends received under them; that he could not compel the other share- holders to refund the dividends received by them, and had no power to elect for them whether they would retain or refund such dividends; The Official Mamager of the Grand Tnmk or Stafford and Peier- Jxrrough Union Rail. Co. v. Brodie; Same v. Stwrgis, 22 Law J. Eep. (n.s.) Chanc. 5U; 3 De Gex, M. &G. 146; 9 Hare, 823. The shareholders of a railway company, at a gene- ral meeting, passed a resolution, by which they placed a large number of shares at the disposal of the di- rectors, who, as a body, did not interfere with the management of the company, but allowed G H, their chairman, to exercise a supreme controul over the company and its affairs. The shares were then placed in the share register in the name of G H at the end of the names of shareholders, and he caused numbers of the shares to be transferred into the names of divers persons, and through different brokers sold them in the market at considerable premiums. Upon a bill filed by the company, — Held, that the office of director is a place of trust: that unambiguous expressions alone could confer upon them any special power; that a resolution to place shares at the disposal of t^ directors, without more, did not render them irresponsible; that they were bound to give explanations to the shareholders, and could not derive any personal or pecuniary ad-_ vantage from the mode of dealing with the shares ; that a suggestion of the application of money for secret purposes will not exonerate the directors from accounting, nor can any person in a fiduciary position retain any remuneration for his services; that an acquiescence in the acts of the directors cannot be raised by a production of the share register books at meetings of the company, and, consequently, that G H must account for the shares disposed of, and pay the costs, up to the hearing, of resisting the ac- count. The York and NorOi, Midland JRcdl. Co.. V. Hudson, 22 Law J. Eep. (h.s.) Chanc. 629; 16 Beav. 485. A seller of land, like a purchaser of it, is entitled to file a bill for specific performance, where he seeks a more complete remedy than he could obtain by an action for damages for the non-performance of the contract. This rule applies equally to an incorpo- rated company as to individuals. The directors of an existing railway company applied to parliament for an act to make a branch line and a diverging line, one of which would touch the property of a landowner, and the other pass through his house and garden. He opposed their bill. They entered into an agreement with him to buy his land at a certain price, and on this consideration he withdrew his opposition to the bill, which then passed, but which did not give the power to make the diverging line, but only empowered them to make the branch line. The landowner executed his part of the agreement, the directors did not execute theirs, but after some time determined not to make the branch line, and gave the landowner notice that they should not want his land. He filed a bill for specific performance : Held, that as the contract was one in furtherance of the general objects of the company (although the company was not at the time of making it em- powered to execute the works for which the land was wanted) it was not a contract nltra vi/res of the directors, and that the person who had contracted" to sell the land was entitled to specific performance. The Directors of the Eastern Oovmties Rail. Co. v. Hamlces, 24 Law J. Rep. (k.s.) Chanc. 601; S H.L. Gas. 331: affirming 22 Law J. Rep. (n.s.) Chanc. 77; 1 De Gex, M. & G. 737. (I) Liability of Peovisional Committeemen. (a) For Deposits. The plaintiff, in answer to an application on his part, had shares allotted to him in a company pro- visionally registered for making a railway, the pro- spectus of which stated, that the capital of the com- pany was to be 700,000?., that there were to be 85,000 shares of 202. each, and that all the shares had been allotted. He paid a deposit on his shares, and executed the subscription contract; which deed, after setting forth the intended railway, stated that the company was to have a capital «oi exceeding' 700,000/.; and it authorized the directors to apply*- the deposits for the purposes of the undertaking, and to indemnify themselves. All the shares were not, in fact, allotted, nor was there any likelihood that; they ever would be allotted. The company, after incurring great preliminary expenses, were unable to comply with the Standing Orders of the House of: Commons, and leave to bring in a biU to carry out the scheme was refused. The plaintiff brought assumpsit for money had and received against' a! director,'to recover back his deposit. On the. trial, the Judge told the jury that the scheme having failed, the plaintiff was entitled to recover back his whole deposit, as he had subscribed to and executed the subscription contract in an association in which the capital was to be 700;000?., and the number of shares 3.5,000, all of which it was said had been allotted ; and it had turned out that the whole num- ber of shares had never .been flubscribed for,, and therefore that the committee were not authorized, to go to parliament at the plaintiff's expense. He added that the plaintiff's execution of the deed had no material effect on his right to recover, as the deed was applicable only tp a scheme in which 35,000 shares had been allotted : — Held, on a bill of excep- tions to this ruling, that the direction of the Judge was wrong; that.^the deed, which merely stated that the capital was not to exceed 700,000?., must be read by itself, and not with reference, to the previous parol contract between the parties ; and that by executing it the plaintiff had authorized the directors to apply his deposit for the purposes of the underr , taking set forth in the deed. Watts v. Salter, 20 Law J. Rep. (n.s.) C.P. 43; 10 Com. B. Eep. 476. The plaintiff applied for shares in a projected, railway company. The provisional directors sent him a letter of allotment of the shares, which in- formed him that a deposit of 21. 28. per share must 168 COMPAJ^Y—Bailway and Incorporated. be paid to certain bankers ; that on presentation of the letter and payment of the deposit, the bankers would give him a receipt, which could be exchanged for scrip on his executing the parliamentary contract and subscribers' agreement. Accompanying the letter of allotment the directors sent the plaintiff a circular, stating that, in the event of the act not being obtained, the directors undertook to return the whole of the deposits, without deduction. The plaintiff paid the deposit, executed the parliamentary contract and subscribers' agreement, and received scrip certificates. He also applied for other shares, and paid the deposit on them ; but, at his request, the directors, with knowledge of the facts, sent the letter of allotment and. circular to E and F, who, in their own names, but as his nominees, executed the parliamentary contract and subscribers' agreement. The subscribers' agreement had been prepared be- fore the plaintiff applied for any shares, and it, amongst other things, authorized the directors to ex- pend the deposits in attempting to get their pro- posed act. A large portion of the deposits was so expended, but the bill was thrown out. The plain- tiff thereupon demanded repayment of his deposits, with interest at 51. per cent, from a period ante- cedent to the date of the letter : — Held, that, on the bill being thrown out, the plaintiff was entitled to a return of the whole deposit, pursuant to the terms of the circular, notwithstanding the power given to the directors in the subscribers' agreement to expend the deposits; that his right extended as well to the shares taken in the. names of E and P as to those in his own name; that assumpsit against a director for money had and received to his use was the proper form of action; and that the demand for interest, though too large as applying to a time anterior to the demand, was yet sufficient to entitle the jury to give the plaintiff interest under the statute 3 & 4 Will. 4. c. 42. s 28. Londeshoroitgh v. Mowatt (in error), 23 Law J. Rep. (n.s.) Q.B. 38; s. c. Mowatt v. Londesiorongh, 4 E. & B. 1 : in the Court below, 23 Law J. Rep. (N.s.) Q B. 177; 3 E. & B. 307. (5) Upon Insufficiency of Funds. The plaintiff became engineer to a projected rail- way company, on the terms contained in the follow- ing resolutions : — That the provisional committee disclaimed the intention of taking on themselves any personal responsibility as regarded the expenses in- curred or to be incurred in or about the company; and that no such responsibility should attach to them ; that it was clearly understood that the plain- tiff should not have any personal claim against any member of the committee, and that the plaintiff would make no claim for his personal services until there should be sufficient funds of the company to meet any demand he might be entitled to make. The plaintiff also stated, in a letter, that he never understood that unless the project were successful the engineers were to abandon all claim, but he did understand that the individuals comprising the com- mittee were not to be held personally liable. De- posits to the extent of 4,168?. were received by the company, which, on the project being abandoned, were returned to the depositors. The plaintiif having brought an action against a provisional com- mittee-man to recover upwards of 600i., — Held, that the defendant was not personally liable, the plaintiff having, in feet, consented to be paid out of such funds as should be properly applicable towards satisfaction of his claim, and there being no funds of that description. Landmmm v. Entmiale, 21 Law J. Rep. (N.s.) Exch. 208; 7 Exch. Rep. 632. (c) For Contriiution. Where two or more members of a provisional committee jointly enter into a contract with a third party, and one of them is compelled to pay more than his just share of the debt, he may maintain an action at law against his co-contractors to recover contribution in respect of the amount overpaid by* him. Bata/rd v. Howes, and Batard v. Douglas, 22 Law J. Rep. (n.s.) Q.B. 443; 2 E. & B. 287. In order to determine the aliquot part of the whole amount which each co-contractor is to con- tribute in such a case, the number of persons who originally entered into the contract must be looked to, and not the number of persons jointly liable to be sued as contractors at the time when the plaintiff in the action paid. Therefore, where twelve persona (including the plaintiff) jointly entered into a con- tract, and after the death of two of them the plain- tiff paid the whole debt, it was held that he was entitled to recover from each of the surviving nine persons one-twelfth, and not one-tenth, of the sum paid by him. Ibid. Semble that an action at law might be maintained for contribution against the representatives of the deceased co-contractors. Ibid. (J) Borrowing Powers. [See Bond.] A railway company which, by their acts of par- liament were empowered to borrow money on mortgage, borrowed money of H. By the mortgage deed, which was in the appointed form, the company, in consideration of the sum lent, assigned to H the undertaking, and all the estate, &c. of the company therein, to hold to H until the sum, with interest, was satisfied; and added the words, "the principal sum to be paid on the 1st of January 1851." The company did not pay it when due. By the local act applicable to the case, the stat. 7 & 8 Vict. c. Ixxxv., it is provided in section 49, that the company may fix the period for the repayment of the principal sum and interest; and in such case they are to cause the period to be inserted on the mortgage deed, on the expiration of which period, it is enacted, that the principal and interest shall be paid to the party entitled to the mortgage. " Section £2. states, " that if the principal and interest be not paid within six months after the same has become payable, and after demand thereof in writing, the mortgagee may sue for the same, or if his debt amount to 5,000i. he may alone, and if not of that amount, he may in conjunction with other creditors whose debts with his amount to 10,000i., require the appointment of « receiver" : — Held, first, that the mortgage deed on its fece imported a covenant by the company to pay the money. Secondly, that where a corporation is created for certain purposes, with power to sue and be sued, and to borrow money for the completion of those purposes, and to secure the repayment of such money by an instrument, which on its face imports a covenant for repayment, if money be so borrowed and so secured, and not COMPANY— Jdint-Stock. 169 :">• duly repaid, an action may be maintained against the company on a breach of the covenant, although there are no speciBc statutory provisions enabling the company to bind themselves by such a covenant, and giving a right of action against them; conse- quently, that H might maintain an action against the company on the mortgage-deed, although he had not made any demand in writing. And further, that section 52. of the local act, in accordance with section 53. of the Companies Clauses Consolidation Act, the Stat. 8 & 9 Vict. c. 16, did not give a right of action for the principal money, but only recognized it as already existing, and provided that when there had been a default in payment for six months and a demand in writing, the lender might either sue or have a receiver appointed. The Eastern Uidon Rail. Go. V. Ha/ri (in error), 22 Law J. Rep. (n.s.) Exch. 20 ; 8 Exch. Rep. 116 : in the Court below. Hart V. stock companies are appointed they are trustees : after deposits are paid, and not before, there are trust funds, and those funds are held by the directors upon the trusts and terms of the subscribers' agreement, and if by that docu- ment the directors have power to bind by a majority all the members of the company, they have authority to resolve that a smaller number shall be a managing committee, and the latter may determine how many of their number may T)y cheque deal with the funds and so bind the whole body of subscribers. Ibid. A suit was instituted against the directors of an abortive company, to make them liable for acts of mismanagement and for the misapplication of its funds. This was compromised by an order on the defendants to pay a fixed sum. One of them having paid more than his share, — Held, that he could sustain a suit simply for contribution in respect of the compromise, and that the co-directors were not entitled, without a cross-bill, to make the plaintiff at the same time account for his general liabilities to the company. Prole v. Mastermam, 21 Beav. 61. (C) Shares. (a) Certificate of Prqpnetorship. The Joint-Stock Companies Registration Act (7 & 8 Vict. c. 110.) by section 51. enacts that, "on demand of the holder of any share the company 172 COMPANY- Joinl-Stock. sTiall cause a certificate of the proprietorship of such share to be delivered to such shareholder," and by section 3. the word " shareholder " is to mean any person entitled to a share in a company, and who has executed the deed of settlement, so far as such meaning is not excluded by the context or the nature of the suhject-matter : — Held, that a holder of shares in a joint-stock company who has not executed the deed of settlement, is not entitled to a certificate under section 51. Wilkmson v. the AnghCali- fomian Oold Mining Oo., 21 Law J. Eep. (b.s.) Q.B. 326; 18 QB. Rep. 728. The declaration alleged that the defendants were a completely registered company formed under a deed of settlement, and that the plaintiff became a subscriber for shares to be received by him as soon as the defendants were completely registered, and had paid the deposit upon such shares ; and that after the complete registration of the defendants, the plaintiff duly executed the said deed of settlement except as to a certain provision therein numbered 179, and that by virtue of the premises and of the statute the plaintiff was entitled to have made out by the defendants a certificate of the proprietorship of the said shares so subscribed for by the plaintiff as aforesaid, and alleged as a breach that the defen- dants refused to deliver to him such certificate. The plea alleged that the plaintiff had not executed the deed of settlement : — Held (on demurrer to the plea), that the declaration shewed no cause of action, as it must be taken to omit any allegation that the plaintiff had executed the deed of settlement. Ibid. There can be no such thing as a partial execution of a deed. Ibid. (i) Sale of. [See MiHB.] W E, being an allottee of shares in a joint^stock company, completely registered under the 7 & 8 Vict. c. 110, directed his brokers to sell his shares, which they did. Before W E had executed the deed of settlement, he became bankrupt. Upon the petition of the brokers that the assignees might be directed to transfer ; — Held, affirming the decision of the Commissioner, that W E not having been registered as a shareholder, the sale was absolutely void both at law and in equity, under the 26th section of the Joint-Stock Companies Registration Act, 7 & 8 Vict. c. 110. Hx parte Neilson, im re Edirumd, 23 Law J. Rep. (h.s.) Bankr. 12 ; 3 De Gex, M. & G. 556. (c) Tramfer of. The deed of settlement of a banking company allowed shareholders to dispose of their shares upon obtaining " the consent of the board of directors," which was to be testified by " a certificate in writing, signed by three of the directors.'' During the whole time that the bank carried on business a managing director received the applications for sales of shares, consented, and signed the certificate of " consent," which was afterwards signed by two other directors, but was never signed by the three assembled as a board. R S, a shareholder, had at various times, with such consents, sold his shares. The directors, under 7 Geo. 4. c. 46, made a return to that effect. The company failed, and the directors passed a reso- lution declaring that there had been no valid transfer of the shares of R S : Held, that as between him and the company the consents given by the directors, although informal and irregular, were valid, and that they could not afterwards treat R S as a member of the company. Bairgate v. Skortridge, 24 Law J. Eep. (n.s.) Chanc. 457; S H.L. Cas. 297 : affirming Shvrlridge v. Bosanqaet, 22 Law J. Rep. (k.s.) Chanc. 48; 16 Beav. 84. The deed of settlement of a joint-stock banking company provided that no person should become a shareholder without the consent of the directors, and in case the board should refuse to consent to any transfer of shares, they should, at the request of the holder, be obliged to purchase the same out of the funds, and on behalf of the company, at a price, in case the parties should not agree, to be fixed by arbitration. The plaintiff contracted to sell his shares, but the board refused to consent to the trans- fer, and he then required the board to purchase them. The plaintiff's shares not being purchased for the company, and an action being afterwards brought against him for calls made subsequently to his application to sell them, he filed a bill to compel the company to purchase the shares, and to restrain the action. On a motion for the injunction, — Held, that the fact, that at the time the application was made by the plaintiff to the board to purchase his shares out of the funds, and on behalf of the company, and thenceforward the company had no tiinds appli- cable to the purchase of shares was a defence to the equity of the plaintiff founded on the provisions of the deed to compel such purchase; that it did not follow from the absence of such funds of the com- pany that the board of directors was therefore under all circumstances bound to adopt the alternative of permitting the plaintiff to transfer his shares to any other person; and held also, that the fact of the price at which the plaintiff had contracted to sell his shares, shewing that they were then nearly valueless, and the further feet, that in the following month the banking company suspended its payments offered sufiScient priindfacie evidence that the board were justified in not purchasing or permitting the transfer of the shares, to induce the Court to refuse to stay the action for calls until the hearing of the cause, except upon the terms of bringing the amount into court : — Held, also, that the question whether the board were justified by the facts of the case in refusing either to permit the transfer of the shares, or to purchase them for the company was a question to be tried in equity. Taft v. Hamrison, 10 Hare, 489. (D) IHVESTMENT OF MOUEY PAID INTO COUBT. Order made as to the investment of money paid into court by public companies in the fimds, with reference to brokerage. In the matter of Braiih- waite's Trust, 22 Law J. Rep. (h.s.) Chanc. 915; 1 Sm. & G. App. XV. (E) Appeopriation of Funds. [See ante, 1, (G) (a) and (c).] It is not lawful to apply the funds of a company in an application to parliament for powers to extend the business of the company beyond the objects for which it was constituted, and the Court will inter- fere by injunction at the suit of a shareholder to restrain any such application. The same principles COMPANY — Dissolution and Winding-vp. 173 which regulate the rights of parties in ordinary part- nerships are applicable in determining the duties of the managing bodies in joint-stock companies, as between them and members of such companies. Sim/pson V. Demsan, 10 Hare, 51. (F) Dividends. In 1819 a person entitled to a share in a coal- mining company became bankrupt. Dividends were declared in 1831, 1838, and subsequently. The bankrupt's shares were carried over to a separate account in the company's books down to 1850, but no claim was made by the assignees until that year : — Held, that the right of the assignees to these divi- dends still subsisted, but that they were not entitled to any pro6ts made by their retainer. Penny T. Pickvmk, 16 Beav. 246. 3. DISSOLUTION AND WINDING UP OF COMPANIES. (A) When and to what Companies the Wihd- iNQ-up Acts will be applied. (a) In general. In 1845 a company was projected and was pro- visionally registered, but the allottees of shares not having paid any deposits the Standing Orders could not be complied with, and the undertaking was abandoned. The solicitor had given the members a guarantie against any expenses incurred in the forma- tion of the company, but to avoid litigation each of the members paid a sum sufficient to liquidate all liabilities, except the solicitor's bill. The brother of the solicitor then presented a petition for winding up the company under the acts : — Held, that although it had been decided that unformed companies came within the meaning of the Winding-up Acts, the Court was bound to regard the inconvenience likely to arise in such cases, where each member was only liable for the debts which he had expressly authorized ; and as there were no liabilities proved, which would not be covered by the guarantie, this was not a case for a winding-up order. In re the Nariorough and Watlmgton Rail. Co., ex parte James, 20 Law J. Rep. (U.S.) Chanc. 275; 1 Sim. N.S. 140. Held, also, that although the respondent had opposed the petition without being liable as a con- tributory, and without being served with the peti- tion, he was entitled to his costs. Petition dis- missed, with costs. Ibid. A petition was presented by a member of a joint- stock company that the company might be wound up, on the ground that a judgment had been obtained against it under which any member of it might at any time be called upon to pay 15,000/. It ap- peared in opposition to the petition, that a great majority of shareholders was opposed to it; that the assets of the company, when realized, would be greater than their debts; that arrangements had been entered into with the judgment creditor relative to the debt; that the company had ceased to carry on business; and that they were trying to wind it up themselves. The Court, in the exercise of its dis- cretion, under these circumstances declined to make the order. In re the British Alkali Co., 22 Law J. Kep. (H.S,) Chanc. 241; 5 De Gex & Sm. 458. The 12th section of the Winding-up Act gives the Court a discretion; and where it appeared that the majority of shareholders were attempting, with the creditors, to arrange the affairs of a banking company which had stopped payment, the Court refused, on the application of a single shareholder, to make an immediate order for winding up the company, but ordered the petition to stand over for two months to . enable the company and creditors, if possible, to settle the affairs without the intervention of the Court. Be the Monmowthahire amd Qlamiorgamshi/re Bamhmg Co., 15 Beav. 74. A provisionally registered railway company having abandoned their undertaking, the directors made two payments to the shareholders in part return of their deposits, and they offered to make a third and final payment, which the whole, or nearly the whole, of the shareholders except A accepted. All the debts and liabilities of the company were discharged, and all the assets of it were exhausted, and A applied for and received the second payment as being one of the shareholders who had concurred in the dissolution of the company. Nevertheless, he heing dissatisfied, as he alleged, with the directors' accounts, petitiqneii for an order for the dissolution and winding up of the company, or for winding it up if it had been already dissolved. The Court refused to make the order at once, and directed the Master to inquire and state whether it was necessary or expedient that the com- pany should be dissolved and wound up, or wound up. In re the Boston, Newairk and Sheffield Bail. Co., ex pcwie WiMams, 1 Sim. N.S. 57. A winding-up order is not to be made because a company is within one of the eight classes described in the 5th section of the act, but it is for the Court to judge of the necessity or expediency; and when a company was insolvent, but there was an arrange- ment pending, by which the admitted debts would be cleared by a subscription among the shareholders, and there was no other question except equities be- tween the shareholders, the Court refused a winding- up order on the petition of a few shareholders hold, ing a few shares. In re London Con/eeyamce Co. '^ise, 1 Drew. 466. (J) Baihiay Compa/ims, A projected railway company, provisionally re- gistered, is within the meaning of the Winding-up Acts, which may, therefore, be applied to it if a Court of equity shall so think fit. Bright v. Hvtton, S H.L. Cas. 341. The 12 & 13 Vict. c. 108. (which came into ope- ration on the 1st of August 1 849), by section 1. enacts, that the Joint-Stock Companies Winding-up Act, 1848 (11 & 12 Vict. i;. 45.) shall not apply to rail- way companies incorporated by act of parliament. The 12 & 13 Vict. c. 83. (passed on the 14th of August 1850), by section 30. provides, that notwith- standing the provision in the 12 & 13 Vict. c. 108, that act, as well as the 11 & 12 Vict. c. 45, shall apply to any incorporated railway company, in respect of which an order for winding it up may have been made previous to the passing of the act of 1 849, and that the proceedings for winding up the same shall proceed and be carried on under the Winding-up Acts of 1848 and 1849, or either of them :_Held, that this clause was retrospective in its operation, and rendered valid proceedings for the purpose of winding up an 174 COMPANY — Dissolution and Winding-up. incorporated railway company taken before the 14th of August 1 850. M'Semie v. the Sligo and Shcmium Sail. Co., 21 Law J. Rep. (n.3.) Q.B. 380. (c) CluU The affairs of a club were ordered to be wound up under the Joint-Stock Companies Winding-up Acts. In the matter of the St. James's CM, 20 Law J. Rep. (n.s.) Chanc. 630. Clubs are not partnerships or associations within the meaning of the Joint-Stock Companies Winding- up Acts. In re St. James's Club, 2 De Gex, M. & G. 383. (d) Loan Societies. A petition was presented for thewinding up of a loan society, in which certain persons united themselves to- gether, to subscribe 8*. per month, for each share, for 100 months, amounting to iOl. per share, and when- ever there should be 200i. in hand the members were to bid for the purpose of procuring a loan at 51. per cent., the premiums to be divided among the members. After fifty-one meetings the society ceased its operations, and the petition was presented on the ground that the funds had been mismanaged and the society had come to an end. The petition was resisted, for three reasons : first, that the peti- tioner was not entitled to present the petition, as nothing was due to him from the society ; secondly, that the society did not come within the meaning of the Winding-up Acts; and, thirdly, that this was not a case for the interference of the Court; — Held, that the petitioner being a member and claiming to be a contributory of the society was entitled to present the petition; that the object of the society being profit, it was within the meaning of the acts ; and that, under the circumstances of the case, the Court was bound to make the order for winding up, although it might be detrimental to the interests of the society. In re the Sherwood Loan Society, ex parte Smith, 20 Law J. Rep. (N.s.) Chanc. 177; 1 Sim. N.S. 165. (c) Pending Suit for Wvndvng wp. Winding-up order refused, on the ground (amongst others) that a suit was pending for the same purpose. In re Chester and Mcmchester Direct Hail. Co., ex parte Phillipps, 1 Sim. N.S. 606. (B) Order tor Wihdikg up. (a) On whose Petition made. A shareholder indebted for calls made two years previously to meet liabilities shewn by the accounts of that date : — Held, obiter, not to be entitled to an order for winding up the affairs of the company merely on the ground that he had been sued for a sum less than the amount due from him for calls as a debt claimed from the company, and had not been expressly indemnified or protected by the company pursuant to the Joint-Stock Companies Winding-up Act, 1848, sect. 5. case 5, the Court being of opinion that he had in his hands a suflicient indemnity for the action. In re the Birch, Torr ami Vitifer Co., ex parte Lawton, 1 Kay &. J. 204. But it appearing that the company was only existing for the purpose of winding up its affairs, and there being nothing to shew that the liabilities had since been paid, and subsequent accounts of the company shewing liabilities still outstanding and calls being due from other shareholders, including one of the trustees of the company : — Held, that although the petitioner alone desired the investiga- tion, he was entitled to an order for winding up the affairs of the company. Ibid. (i) Effect of The 73rd section of the 11 & 12 Vict. c. 45. (the Winding-up Act) authorizes a plaintiff having a claim against a dissolved company, subject to the provisions of that act, to proceed with his action against such company, " after proof or exhibiting or making such proof as he may be able, of his debt or demand before the Master" : — Held, that the plain- tiff, who had exhibited such proof and had obtained the Master's allowance, was entitled to proceed with his action, and was not bound to take any further step, as, for instance, to endeavour to obtain pay- ment of his demand. Prescott v. Eadow, 20 Law J. Rep. (N.s.) Q.B. 381; 5 Exch. Rep. 727; 1 L. M. & P. P.C. 640. Qu(Bre whether allowance of proof by the Master is essential in such a case. Ibid. The dissolution of a company by an order absolute under the Joint-Stock Companies Winding-up Act, 1848 (11 & 12 Vict. c. 45.) is no bar to an action against the company by a creditor. Neither can the omission by such creditor to prove his debt before the Master in Chancery be pleaded in bar to such an action; the appropriate remedy being under sec- tion 73, by an application to a Judge to stay pro- ceedings in the action until after proof made. M'Eemie v. the Sligo amd Sha/imon Bail. Co., 21 Law J. Rep. (N.s.) Q,.B. 380. (C) Interim Manager. An interim manager appointed under the Wind- ing-up Act (11 & 12 Vict. c. 45. s. 20.) is not an official manager within the 73rd section ; and there- fore the Court will not, under that section, stay pro- ceedings in an action against the company ordered to be wound up, or other person representing the company, unless an official manager has been ap- pointed. Brettle v. Dawes, 21 Law J. Rep. (n.s.) Exch. 94 ; 7 Exch. Rep. 307. (D) Official Manager. An action brought against a contributory of a joint-stock company is not an action against the company, or a person authorized to be sued as nominal defendant, under the 50th section of the Winding-up Act (U & 12 Vict. c. 45), and therefore need not be brought against the official manager appointed under the act. Bea/rdshaw v. Londesbarough, 21 Law J. Rep. (n.s.) C.P. 17; 11 Com.B. Rep. 498; 2 L. M. & P. P.C. 560. An action against a contributory falls under the 62nd section, which enables the official manager, by leave of the Master, to defend such action in his official name, or in the name of the original defen- dant. Ibid. The 7 & 8 Vict. c. 110. s. 66. provides that judgments obtained against a completely registered company may be enforced against shareholders. The 11 & 12 Vict. c. 45. B. 50. provides that, after the appointment of an official manager, actions which might be brought against a company or any person authorized to be sued on behalf of the company, COMPANY — Dissolution and Winding-up. 175 shall be brought against the official manager. The 67th section provides that judgments against the ofiicial manager shall have the like effect on share- holders as if the judgment had been against the company, or a person authorized to he sued on its behalf. The 12 & 13 Vict. c. 108. o. 1. extends the operation of the former act to all companies of more than seven members : — Held, that as the 67th sec- tion of the 11 & 12 Vict. c. 46. must be construed with reference, to the 60th, a judgment obtained against the official manager of a company, only pro- visionally registered, cannot be enforced against a shareholder, as the action could not have been brought against the company. Prichard v. the Official Mmwger of the London and Birmingham Extension, Northampton,, Da/ventry, Leamington and Wcunoich Rail. Go. {In re Weiss.) 24 Law J. Rep. (n.s.) C.P. 30; 15 Com. B. Rep. 331. An action cannot be maintained against the official manager of a company within the provisions of the Joint-Stock Companies Winding-up Act, 7 & 8 Vict. c. 110, and being wound up under the 11 & 12 Vict. c. 45, unless such company has been com- pletely registered ; for section 60. of the last-men- tioned act only provides for the official manager being sued where such action could otherwise have been maintained against such company or any per- son duly authorized to be sued as the nominal defendant on behalf of the same. Russell v. Croys- dJiZ, 24 Law J. Rep. (H.S.) Exch. 287; 11 Exch. Rep. 123. Under the order for winding up a joint-stock com- pany, calls were made upon the contributories to the amount in the whole of 324,0002. and upwards, of which 142,206i. only was received by the official managers and paid to the creditors of the company, not being shareholders; and 181,711'. 14*. id. was set off against the calls of certain of the contributories, thereby extinguishing such contributories' demands against the company to that extent: — Held, that under the 35th section of the Winding-up Act, 1849, the per-centage was payable only in respect of the 142,205^., the amount actually received and divided among the creditors of the company. In the matter of (he Joint Stock Oompamies Windimg-up Act 1848 and of the North of Englamd Joimt-Stoch Banking Co., 20 Law J. Rep. (h.8.) Chanc. 462. Proceedings were taken in the Master's office by the official manager, upon which he obtained the order of the Master for the production of an account of certain payments. The parties ordered to pro- duce this account appealed, and the Court discharged the order : — Held, that the proceedings being, in the opinion of the Court of Appeal, improper, the official manager must pay the costs before the Master, but that the costs of supporting the order of the Master in the court of appeal must be paid out of the estate; the former being without prejudice to any order the Master might make as to indemnity out of the estate. Ex parte Woohner, in re the Direct Exeter, Plymouth and Devowport Rail. Co., 22 Law J. Rep. (n.s.) Chanc. 613. In proceedings by the ofHcial manager of a joint- stock company, his name and address, as well as style, should be given. Ex parte Heritage, 23 Law J. Rep. (n.s.) Chanc. 200; Kay, App. xxix. An official manager who continues an existing suit, under an order of the Court, pursuant to the provi- sions of the Winding-up Acts, adopts the suit with all the imperfections and infirmities attaching upon it at the time of obtaining the order substituting the official manager for the original plaintiff. The Offi- cial Mamager of the Oramd Trunk or Stafford, &c. Rail. Co, V. Brodie; and The Same v. Sturgis, 22 Law J. Rep. (n.s.) Chanc. 614; 3 De Gex, M. & G. 146; 9 Hare, 823. A trustee cannot be charged for fraud upon the mere ground that the document, by which the alleged fraud was perpetrated, had been in his possession, but had been subsequently lost and was not accounted for. Ibid. The Court being of opinion that a bill adopted by an official manager contained charges of fraud and misconduct, not supported by the evidence, that the suit was improperly framed in its inception, and that, both with reference to the frame of the suit and the merits of the principal question, it ought not to have been adopted, dismissed the bill, with costs, to be paid personally by the official manager. Ibid. An order directing an official manager by name, and by his description of official manager, to pay costs, is an order for him to pay them personally, and not in his official character. Ibid. (E) FuTOS. (ffl) Misapplication of. A railway company was formed, and a large num- ber of shares in it was allotted, and a considerable sum paid in respect of deposits on the shares. A managing committee of the company was appointed, and five of its members were appointed a finance committee, with power to draw cheques. By the direction of the managing committee, large sums, part of the company's funds, were employed in pur- chasing shares in the market. The Master to whom the winding up of the company was referred, charged the members of the finance committee with these sums, on the ground that the managing committee was implicated in the breach of trust. The Master's order was overruled. In re the London and Bir- mingham Extension, and the Northampton, Daven- try, Leamington, and Warwick Rail. Co., ex parte Carpenter's Executors, 21 Law J. Rep. (n.s.) Chanc. 826; 6DeGex&Sm. 402. (5) Distribution of. In the proceedings before the Master for winding up an abortive joint-stock company, in which 53,015 shares had been subscribed for, a sum of 23,000'. was realized. After two advertisements in the daily papers for scripholders, certificates representing 26,675 were produced, 24,870 scrip shares were can- celled by arrangement with the holders, leaving 2,470 scrip shares unaccounted for. It appeared that 22,000/. assets of the company remained out- standing. On the application of the official manager the Court authorized him to pay a dividend of 16s. per share among the holders of the 26,676 scrip share?, and to pay and distribute future dividends among the holders for the time being of scrip shares, with the sanction of the Master. In re the Madrid and VaZentia Rail. Co., ex parte Quilter, 5 De Gex & Sm. 276. (F) Compromise. Upon the authority of UpfU's case, decided by 176 COMPANY — Dissolution and Winding-up. the House of Lords, W L was placed upon the list of contributories of a railway company. Subse- quently, W L, with the sanction of the Master, agreed to pay a certain sum as a compromise of all liability. Between the decision of UpfilVs case and the date of the agreement, Bi-ight's case was deoidod by the House of Lords, which overruled UpfilVs case. One of the Vice Chancellors held, that the compromise was binding, although W L alleged sur- prise and misrepresentation; and the Lords Justices, confirming that decision, — Held, first, that the ap- proval of the Master had relation back to the time of the agreement, and was not affected, therefore, by Brighi's case ; secondly, that as when the Master approved of the compromise there was a doubt, of which W L was aware, whether he was not entitled to be relieved from liability on the authority of Bright's case, the compromise was for a good consi- deration, and therefore valid; and, thirdly, that the compromise, having been entered into bond fide, the parties thinking the question between them was doubtful, although in fact it turned out that there was no real question between them, and there being no eividence of surprise or misrepresentation, was valid and binding. Mx parte Lucy, in re the Mid- land Unimh, Bwrton-wpcm-Trent, Ashiy-de-la-Zouch and Leicester Rail. Co., 22 Law J. Rep. (n.s.) Chanc. 732; i De Gex, M. & G. 356. (G) Actions and Suits aoaisst the Company or COHTRIBnTOEIES. [Sep Official Manager, amte, (D).] The plaintiffs filed a bill to wind up the affairs of a banking company, charging the directors with per- sonal misconduct. The defendants afterwards ob- tained an order to wind up the company under the Winding-up Act, although such order was opposed by the plaintiff's. The plaintiffs now moved to stay proceedings in the suit until the company should be wound up under the order for that purpose : Held, that the winding-up order could not give all the relief sought by the bill, and that the plaintiffs ought to have come to the Court promptly, instead of delaying two years and a half. Motion refused. Decks v. Stanhope, 20 Law J. Eep. (n.s.) Chanc. 485; 1 Sim. N.S. 439. A joint-stock company overdrew its account with its bankers, and was subsequently ordered to be wound up. The amount of debt was disputed, and the public officer of the bank (also a company) carried in a claim before the Master, who refused to admit it as a claim until the debt was proved at law. The Master of the Rolls on appeal admitted the claim, and directed an action to be brought; but, upon appeal, it was held, that although the order at the Rolls was correct in admitting the claim, it must be altered by giving the public oflicer of the bank liberty to bring such action against such person or persons as he should be advised. Ex parte the East of England Banhing Co., in re the Norwich Tarn Co., 21 Law J. Rep. (n.s.) Chanc. 822; 5 De Gex, M. & G. 505; 13 Beav. 426. A person having a claim as creditor against a com- pany ordered to be wound up was, after various proceedings, allowed to bring an action against the official manager, and recovered judgment for the amount and costs. The order permitting the action directed that the judgment, if any, should be dealt with as the Court should direct. The creditor applied for leave to issue proceedings at law or in 'equity against the property of the company, or against the contributories, or that the official manager might make a call for payment of the demand; — Held (overruling a decision of one of the Vice Chancellors, who had refused to make any order), that he was entitled to proceed at law; but that the Court would not make a call, as such an application must be made in the Master's office. Ex parte Prichard, in re the London and Birmingham Extension, North- ampton, Ba/eentry, Leamington and Wairwich Rail. Co., 23 Law J. Rep. (n.s.) Chanc. 914; 5 De Gex, M. & G. 484. An execution against a company having proved ineffectual, the Court allowed the creditor to issue execution against some of its members to the extent, of their shares not paid up, notwithstanding the com- pany was about to be wound up. Ex pa/rte the Warhworth DocTc Co., re Phillips, 18 Beav. 629. Upon the formation of a joint-stock company, two of the members advanced part of the purchase-money for the land required for the concern, upon a mort- gage made to a trustee for them, when the land was conveyed in trust for the company. The mortgage was afterwards transferred to strangers. The com- pany being wound up under the Winding-up Acts, the transferees, by arrangement with the oificial manager, sold the land, which did not realize sufficient to pay the mortgage debt, and proved for the deficiency as creditors. Being unable to obtain payment from the official manager, they filed a bill against him : — Held, upon demurrer, that payment of the debt was properly enforceable by suit in equity against the official manager, and that the plaintiifs were not precluded from instituting such a suit by the proceedings under the Winding-up Acts. Thompson v. Norris, 6 De Gex & Sm. 686. (H) Claims. (a) In general. Directors of one railway company passed a reso- lution to lend money to the directors of another com- pany on their personal responsibility , and the money was so lent, and some of the directors signed a gua- rantie for repayment. Under an order for winding up the company, the directors of which borrowed the money, a claim was carried in on behalf of the lend- ing company, but it was disallowed; and on appeal, it was held, — affirming the decision of the Master, — . that where a company or association is ordered to be wound up, the Master has no jurisdiction under the order to take cognizance of a claim not alleged to be due from the company, but only from individual members of it, and that it made no difference that the money was applied for the purposes of the com- pany. Ex parte Wryghte,in re the Great Western Extension Atmospheric Rail. Co., 21 Law J. Rep. (n.s.) Chanc. 807; 2 De Gex, M. & G. 636. The two trustees of a joint-stock trading company, at the request of the directors, gave a bond for 1,000?-. borrowed for and applied to the use of the company. In an action against one of these two trustees the bond creditor recovered the 1,000?. and interest and costs against him personally, and the trustees paid the debt, interest and costs. The trustee ineffectually gave notice of the proceeding to the directors of the company twice (the second time under the Winding- COMPANY — Dissolution and Winding-vp; (H) Claims. 177 upAct,1848,sect.5.caBe6). On a claim by the trustee to be admitted aa a creditor of the company under the Winding-up Acts, the Court directed an action, which established the borrowing to have been an authorized act;— Held, that the trustee was entitled to stand as a creditor for l,000i and interest and his costs, charges and expenses properly incurred as a trustee in defence of the action and of the motion, but he was allowed no damages for costs incurred in raising the amount. In re the Owndle Brewery Co., Croxton's case, 5 De Gex & Sm. 432. An engineer claimed to be admitted, under an order for winding up an abortive railway company, as a creditor for the amount of his bill for work done and money laid out. The Master, having divided the contributories into three classes, and not deter'- mining that the engineer's claim was good against all the classes, admitted it as a claim only, leaving the engineer to establish his case at law against such contributories as he might elect to sue: — Held, on appeal, that the debt, if any, due to the engineer formed a debt due from the company, proveable under the winding-up order. In re the London and Birmingham Extension, &c. Rail. Co., Pritcha/rd's case, i De Gex & Sm. 328. (8) Advances hy Directors. Where directors had advanced money (which they had borrowed and for which they were personally liable) beyond the amount authorized by the deed of settle- ment of an unincorporated company, and upon the evidence it was clear that they had acted iond fide, and that the money had been expended for the pur- poses of the company, and so as to enable them to discharge their duty as trustees towards their cestuis que trust, the shareholders, — Held, upon appeal, affirming the certificate of the Master charged with winding up the affairs of the company, and the decision of one of the Vice Chancellors refiising to disturb that certificate, that the directors ought to be allowed their payments as an indemnity in the same manner as other trustees. In re the German Mining Co., a Law J. Rep. (u.s.) Chane. 41. (c) Solicitor's Bills. Upon the winding up of a company, which had been completely registered, the solicitor carried in before the Master his bill for the whole expenses incurred, both those preliminary to the complete registration of the company and those incurred sub- sequently to that period. The Master allowed the whole bill as a claim and not as a debt, with liberty to the solicitor to bring an action : — Held, upon motion to discharge the Master's order, that the members of a completely registered company were not liable for preliminary expenses, unless they had expressly or impliedly rendered themselves liable; that the bill in this case was so framed that it was impossible to distinguish the preliminary from the subsequent expenses, and the Master had, therefore, come to a right conclusion in allowing the whole bill as a claim only. In re the Independent Assurance Co., expoHe Terrell, 21 Law J. Bep. (u.s.) Chane. 222; 2 Sim. N.S. 126. A company was completely registered. On a proceeding under the Winding-up Acts, the solicitor who had been employed in its formation carried in before the Master his bill for the whole expenses in- DiGEST, 1850—1855. purred, both those preliminary to the registration of the company and those incurred subsequently to that period. The Master only allowed the bill as a claim, and gave the solicitor liberty to proceed by action aa he might be advised : — Held, that this course was erroneous; that the Winding-up Acts embraced both equitable and legal claims; and that as there was no doubt of the retainer and employment of the solicitor, the bill ought to have been allowed as a debt, but subject to taxation. In re the Independent Assv/r. Co., B. M. Terrell v. James Hutton, official mamager, 23 Law J. Eep. (h.s.) Chano. 346; 4 H.L. Cas. 1091, (d) Salaries, When a company was formed it was resolved that no director of the company should be per- sonally responsible for the salaries of the officers, and that no officer should obtain payment for his services until a sufficient sum should have been obtained by the funds of the company for that pur- pose. It was also agreed that the officers should receive half their salaries until such time as it might be convenient to the company to pay the whole* Upon the company being wound up, the Master disallowed the claim of the secretary for salary, during the two years he had acted as such, and one year afterwards for default of notice; — Held, that the claim for the full amount of salary for two years only must be allowed. In re the Independent In- surance Co., ex parte Cope, 20 Law J. Kep. (n.s.) Chane. 28; 1 Sim. N.S. 64. (e) Costs of obtaining Act of Parliament. A committee was appointed under the provisions of the deed of settlement for winding up the affairs of a joint-stock company. The existing law being inadequate for the purpose, the committee incurred large expenses in procuring the insertion into a bill then before parliament of certain clauses applicable to the affairs of the company : Held, affirming the decision below, that these expenses were not a charge against the company, not being authorized by the deed of settlement or by the individual shareholders. In re the St. George Steam Packet Co., ex parte Cropper, 21 Law J. Rep. (n.s.) Chane. 693; 1 De Gex, M. & G. 147. (/) Policies, A joint-stock company assigned its goodwill, business, trade, property and effects to another joint-stock company, and the latter covenanted to in- demnify the former against all claims in respect of policies previously granted. Both companies were ordered to be wound up. Claims were made against the assigning company in respect of policies, and the official manager thereof claimed indemnity, in virtue of the covenant, out of the assets of the other com- pany. Part of the evidence of the claimants shewed that the assigning company was insolvent at the date of the assignment. The Master disallowed the claim, and his decision was affirmed by one of the Vice Chancellors; but upon appeal, — Held, that the claim must be allowed; that the insolvency of the company was no proof of fraud, and that the costs of the appeal, both to the Yice Chancellor and to the Court of Appeal, must be borne by the respon- dent company. Ex parte the Official Manager of 2 A 178 COMPANY — Dissolution and Winding-up. the Port of London Shipowners' Loan and Assur. Co., in re the Sea, Fire, and Life Asswr. Society, 24 Law J. Eep. (n.s.) Chanc. 705; 5 De Gex, M. & G. 465. (g) Advertisements. The registered secretary to a provisionally regis- tered company, in pursuance of instructions given to him at a meeting of the members or committee of the company, gave orders to an advertising agent to cause the scheme, &c. to be advertised. The agent executed the orders and paid for the advertisements, and afterwards claimed, before the Master charged with the winding up of the company, to be admitted a creditor of the company for the amount paid by him; but he did not know the names of the persons present at the meeting. The Master declined to admit the claim as a proof, because the affidavits in support of it did not establish a debt against any particular persons or against the whole class of con- tributories; and the Court, on appeal, confirmed the Master's decision. In re the Direct WestrEnd and Croydon Rail. Co., ex parte Lloyd, 1 Sim. N.S. 248. (A) When tarred ly Statute of Idmitaiions. A railwav company was ordered to be wound up, in 1849. in February 1 850, A filed an affidavit of debt on the allegation that he had lent the company 2,000i. in October 1845. The claim was brought before the Master in December 1851, and January and February 1852, on which occasions he disallowed it, on the ground that it was barred by the Statute of Limitations: — Held, that the claim was not barred by the statute ; and it was ordered that the Master should review his decision. In re the Great Western Extension Atmospheric Rail. Co., ex parte Wryghte, 22 Law J. Kep. (n.s.) Chanc. 183; 5 De Gex & S. 244. (I) CONIEIBUTORIES. (a) Who may lie. (1) Directors. A, a director in a joint-stock company, gave an undertaking to take 100 shares in the company and a promissory note for 1,000/. in respect of calls made on the shares. A, wishing to retire from the directorship and to give up his shares, communicated these wishes to the other directors. In June 1842 he was discharged from the directorship, and in July it was agreed that his shares should be taken ; which was carried out by the directors returning to A his undertaking and note. No other formalities were gone through. The deed of settlement of the com- pany contained ample powers for the directors to make contracts and to purchase shares. The com- pany was ordered to be woimd up : Held, that A was not a contributory. In re the Royal Banh of Australia, ex parte Cochbwm, 20 Law J. Rep. (n.s ) Chanc. 137; 4 De Gex & Sm. 177. (2) Provisional Committee-men. B allowed his name to be used as one of the pro- visional committee of a projected railway company, which was provisionally registered. A managing committee was afterwards appointed, and 100 shares were allotted to B, who thereupon wrote to the secretary, declining to accept any shares, and re- quiring his name to be withdrawn from the list of the provisional committee. After certain expenses had been incurred by the managing committee, the scheme proved abortive. B, never having previously interfered in the affairs of the company, and being ignorant that his name had been withdrawn from the list, attended certain meetings of the provisional committee for winding up the affairs of the com- pany, and joined in signing an agreement, whereby the parties signing agreed to pay a rateable propor- tion towards the expenses incurred. Under resolu- tions passed at such meetings, B paid several sums of money. The company being ordered to be wound up, — Held, that under the circumstances B was not a contributory. In re the Direct Exeter, Plymouth and Devonport Rail. Co., ex parte Besley, 20 Law J. Eep. (N.s.) Chanc. 385; 3 Mac. & G. 287. The Master placed Mr. Carmichael on the list of contributories to a company, as a provisional committee-man and as an allottee of 100 shares : — Held, that the evidence was not sufficient to shew that Mr. Carmichael had bound himself to take any shares, and that he being only in the position of a provisional committee-man, who had not authorized any expenditure on his behalf, his name must be expunged from the list of contributories. In re the Irish West Coast Rail. Co., ex parte Carmichael, 20 Law J. Eep. (n.s.) Chanc. 12. The Master had placed the name of Mr. Clarke on the list of contributories, on the ground that he had allowed his name to be advertised as one of the provisional committee. Mr. Clarke had taken no shares in the company : — Held, that a person being one of the provisional committee did not of itself subject him to any liabilities, unless he had autho- rized expenses being incurred on his behalf. The Master's decision was reversed. In re the Falmouth, Helston and Penzance Rail. Co., ex parte Clarke 20 Law J. Eep. (n.s.) Chanc. 14. A's name was placed in the list of the provisional committee of a railway company. Soon after he received a letter from the secretary of the company, containing an offer of 250 shares, or any less number he might choose. A accepted the offer of the whole 250 shares. A month after, A received a letter from the secretary to the effect that 100 shares had been allotted to him, and that the committee might find themselves in a position to allot the other 1£0. No notice was taken by A of the last letter. The company was ordered to be wound up : Held, that A was not a contributory. In re the Oxford and Worcester Extension and Chester Junction Rail. Co., ex parte Barter, 20 Law J. Eep. (n.s.) Chanc. 146. A provisional committee-man who has accepted shares in a company is liable as a contributory, following the decision in Upfill's case. In re the Direct Birmingham, Oxford, Reading and Brighton Rail. Co., ex parte Sichel, 20 Law J. Eep. (n.s.) Chanc. 129; 1 Sim. N.S. 187. A was one of the provisional committee and also one of the managing committee of a railway com- pany, directed to be wound up under the Joint- Stock Companies Winding-up Act. By a resolution of the committee, it was resolved that the committee of allotment should make an allotment, according to a scheme, under which each of the managing com- mittee should have 500 shares. By a minute made COMPANY — Dissolution and Winding-up; (I) Contributories. 179 at a meeting of the managing committee, signed by A a3 chairman, it was reported that the committee had completed the allotment of shares according to the above-mentioned scheme. Nothing further, however, was done as to this allotment : — Held, that A was properly put on the list of contributories in respect of 500 shares. In re the Oxford cmd Wor- cester Extension and Chester Jimetion Rail. Co., ex parte Morrison, 20 Law J. Rep. (u.s.) Chanc. 296. A patty consented to have his name placed on the list of provisional committee-men, and agreed to take shares. Shares were allotted to him, but he did not pay the deposits thereon until after the undertaking had been abandoned, and he never executed the subscribers' agreement or parliamentary contract, without which it was expressly stated he could take no interest in the company. The Master struck his name off the list of contributories ; — Held, upon appeal from this decision, that he had brought himself within the rule in VpJiU's case, and his name must be replaced on the list of contribu- tories. In re Hie Direct Shrewsbury and Leicester Rail. Co.,expa/rte Brittain. 20 Law J. Rep. (k.s.) Chanc. 479; 1 Sim. N.S. 281. A railway company having been only provision- ally registered, Mr. Carrick became a member of the provisional and executive committees, and took an active part in attending meetings and ordering work to be done for which expenses were incurred. He was also present at a meeting when it was re- solved that 150 shares should be offered to each member of the executive committee. Mr. Carrick did not apply for shares, but 150 were allotted to him. "When the undertaking failed, he paid 6s. per share on 100 shares towards the expenses incurred. The Master having placed his name on the list of contributories, the Court held, upon motion to reverse the Master's decision, that there was no distinct evidence of Mr. Carrick having accepted shares, or having sanctioned any of the expenses incurred, — his name must therefore be withdrawn from the list. In re the Great North of Englamd Rail. Co., ex pa/rte Ca/rrich, 20 Law J. Rep. (N.a.) Chanc. 670; 1 Sim. N.S. 505. Held, also, that the legal rights or liabilities of promoters and persons agreeing to take shares in a company provisionally registered, are not altered by the Winding-up Acts. Ibid. A was a member of the provisional committee of a projected railway company, and, as such, attended a meeting of the provisional committee, and con- curred in the appointment of a number of gentlemen as a committee of management. This committee of management, immediately on their appointment, undertook the exclusive conduct of the affairs of the company, and gave orders to engineers to make surveys, &c. in the name of the company, and incurred considerable expenses in respect of the undertaking, but, after some time, abandoned the concern. The provisional committee, after such abandonment, held a meeting, at which, under the impression that they were personally liable, they came to certain resolutions as to contributions among themselves in respect to the expenses in- curred. A attended this meeting, and took an active part in carrying out the resolutions : — Held, that A was not liable as a contributory. In the matter of the Direct Mxeter, Plymouth and Devonport Rail. Co., ex parte Tanner, 21 Law J. Rep. (n.s.) Chanc. 212; 5 DeGex&Sm. 182. The secretary of a provisionally registered railway company informed A B, by letter, dated the 6th of October, that he was entitled, as a provisional com- mittee-man, to 100 shares, provided he signiHed on or before the 9th instant what number he desired to take. A B's wife, on the 7th, asked that the shares might be reserved a few days longer. A B, on the 9th, wrote saying, " I should wish to have 100 shares reserved for me." On the 2lBt of November, the secretary required pavment of the deposit on the 100 shares "accepted" by A B. On the 27th, A B wrote, saying, " Inform me whether a sufficient amount of deposits has been paid up to enable the company to go to parliament this session, and if all the provisional committee have paid their deposits; should that be the case, I shall not hesitate to pay also, that is, upon being clearly satisfied on these points." The Master placed the name of A B on the list of contributories, as having accepted shares, and that decision was affirmed by the Vice Chan- cellor; but upon appeal to the Lords Justices, it was held, that there had been no absolute and unqualified, but only a conditional, acceptance, and as the con- dition had not been, and could not be, performed, A B's name must be removed from the list. Bx pwrte Mainwa/ring, in re the Eastern Covmties Junc- tion and Southend Rail. Co., 21 Law J. Rep. (n.b.) Chanc. 416; 2 De Gex, M. & G. 66. The provisional committee of a projected railway company passed a resolution that fifty shares should be offered to each provisional committee-man. A, a provisional committee-man, applied for fifty shares. A stated in an affidavit that no reply was given to his application, and that he never received any com- munication respecting it, and that he never attended any meetings, and did not pay anything by way of deposit or call. No evidence of any allotment of shares was given in opposition to A's statement: — Held, that A's case differed from UpfXl's case, and that he was properly excluded from the list of con- tributories. In the matter of the Brighton, Lewes and Tunbridge Wells Rail. Co., ex parte Conway, 21 Law J. Rep. (n.s.) Chanc. 461; 5 De Gex & Sm. 150. At a meeting of the managing committee of a provisionally registered railway company, at which A and B were present as members, it was resolved that the shares of the company should be allotted according to a certain scheme, by which SCO shares were to be allotted to each member of the managing committee under the head of " reserves." In fact, 100 shares only were allotted to and accepted by A and B respectively, and for that number only they signed the parliamentary contract. On the winding up of the company the Master placed A and B on the list as contributories in respect of 500 shares each : — Held, upon appeal, that A and B were liable in respect of the 100 shares only; and that the reservation of the 500 shares in their favour did not amount to a contract binding upon them to accept that number of shares. In re the Oxford and Worcester Extension amd Chester Jimetion Rail. Co., exparte Sha/rp amd James, 21 Law J. Rep. (n.s.) Chanc. 767; 1 De Gex, M. & G. 565. Mr. Hight was a member of the provisional com- mittee of a railway company, and attended one 180 COMVA'SY— Dissolution and Winding-vp; (I) Conteibutobies. meeting, at which he moved a resolution for the appointment of the officers of the company. He had taken no shares and had not signed the sub- scribers' agreement. There being no evidence that any expenses remained unpaid which had been in- curred with his sanction, it was held, that hia name had been improperly placed upon the list of con- tributories. In re Oie Dover and Deal Rail. Co., ex parte Right, 22 Law J. Eep. (N.s.) Chanc. 902; 1 Drew. 484. A B consented to act as a provisional committee- man, and signed an agreement to take one or more shares. He was then requested to take up 25 shares out of the 100 to which he was entitled, and to pay the deposit of two guineas per share. Before paying the required amount or taking up the shares the undertaking was abandoned, and the provisional committee-men were requested to pay a sum equal to the deposit upon 25 shares, to cover the expenses incurred. This sum was then paid by A B, and subsequently two further sums to the same amount were paid, upon a threat of being otherwise exposed to legal proceedings. The Master placed A B's name on the list of contributoriea : — Held, upon appeal from this decision, that A B had never con- sented to take up any shares, but had paid the calls upon him causd pads ; and his name was therefore struck off the list of contributories. In re the Wolverhampton, Chester and BirTcenhead Junction Rail. Co., ex parte Stocks, 22 Law J. Rep. (n.s.) Chanc. 218 : see also Ex parte Roberts, 22 Law J. Eep. (n.s.) Chanc. 223; 1 Drew. 204. At some of the meetings of the managing com- mittee of a provisionally registered railway company at which A, one of the committee, was present, it was resolved that certain proceedings should be ad- vertised. At another meeting attended by four of the body, but not by A, it was resolved that a circular should be sent' to the members of the provisional committee, which included the members of the managing committee, stating that on payment of 1 60/. each they should he released from all liability. A and the others paid this amount, and A never attended any subsequent meeting. Meetings of the managing committee were afterwards held, at which some of these payments were referred to, and the terms of the circular were recognized and acted upon. The company was wound up under the Winding-up Acts, and it appeared that one of the provisional committee had been compelled by proceedings at law to pay the bill of the advertising agent : — Held, that A y/a,a primd fade liable for some part of the demand, and was not exonerated by his payment of 1601. and the subsequent conduct of his co-com- mittee-men, but had been properly placed on the list of contributories. In re the Midland Union, &c. Rail. Co., Pearson's Executors'' case, 3 De Gex, M. & G. 241. A member of the committee of management of an abortive railway company attended many of the meetings, but he did not attend the only meeting at which the only unsatisfied debt of the company (being a debt to its engineer) was contracted ; he, however, attended a subsequent meeting, at which the report of the engineer was received and adopted : Held, that pnmij /aci'e the claim of the engineer was a liability of the company within the meaning of the Winding-up Acts; and that although the member was not directly liable to the engineer, he was liable to the persons liable to the engineer to contribute rateably with them ; and the member's name was retained on the list of contributories. In re the Midland Union, Buriom,- upon- Trent, &c. Rail. Co., Norhury's case, 6 De Gex &. Sm. 423. The local agent of a provisionally registered rail- way company applied to a landowner on the proposed line to become connected with the company, assuring him from the managing committee that he would incur no liability thereby, and the landowner thereupon became a provisional committee-man. On his subse- quent application for 200 shares " subject to the sub- scribers' agreement," no allotment of any shares to him were proved, but when a claim for calls was made on shares he asked time to pay them. No subscribers' agreement was ever prepared. On the winding up of the company under the Winding-up Act, — Held, that the landowner was a provisional committee-man who had taken shares in the company within the decision of UpfilVs case, and that he was a contri- butory. Ex parte Metropolitan Rail. Junction Co., Marlcwell's case, 5 De Gex & Sm. 629. (3) Devisees. A was the holder of shares in a joint-stock com- pany, the members of which had by covenant, not binding their heirs, engaged that the partnership should continue for ninety-nine years; that there should be no right of survivorship, and that the shares should be deemed personal estate. A died in 1838, having, by his will, devised his real estate to B, and appointed C his executrix. At the time of his death the company were solvent, and all the then existing liabilities were afterwards discharged. C, after A's death, was treated as the proprietor of the shares; and for five years received dividends upon them as exe- cutrix. The company became insolvent ; and, it appearing that the testator's personal estate was ex- hausted, B's name was put on the list of contributo- ries, in his character of devisee of the real estate : Held, reversing the decision of the Court below, that B was rightly placed on the list of contributories. In re the St. George Steam-PacJcet Co., ex parte liar mer's Devisees, 21 Law J. Rep. (n.s.) Chanc. 832; 4 De Gex, M. & G. 866; overruhng 20 Law J. Rep. (n.s.) Chanc. 207; 3 De Gex & Sm. 273. The statute 3 & 4 Will. 4. c. 104. charges debts of every description on the real estate of the testator; and a further debt, arising out of a previous obliga- tion of the testator, is within the act. Ibid. (4) Trustees. An insurance company allotted the managing di- rector a certain number of shares in consideration of his services, but he, being unable to take the shares in his own name by reason of being covenantee in the shareholders' deed, induced his brother to hold the shares for him and to sign the deed. The directors, considering afterwards that they had done wrong, can- ceUed the allotment and recalled the shares : — Held, that the brother having signed the deed, contracted liabilities with the other shareholders, from which he could not escape, and his name must be placed in the list of contributories. In re the Independent Asswravce Co., ex parte Holt, 20 Law J. Rep. (n.s.) Chanc. 413; 1 Sim. N.S. 389. COMPANY— Dissolution and Winding-up; (I) CoNTKlBUTOElEa. 181 (5) Executors. A, the original holder of shares in a joint-stock banking company, died in 1842, possessed of shares, and B, his executrix, upon production of the probate of his will, received the dividends upon the shares from 1842 to 1846, and signed receipts for the same, as executrix of A, the shares remaining in the name of A. An order being made for winding up the com- pany, the Master excluded B's name altogether from the list of contributories. The company's deed pro- vided, that each shareholder should be liable to losses in proportion to his shares, and each share- holder covenanted for himself^ his heirs, executors, &c., in respect of shares remaining part of his assets, to observe all the stipulations of the deed. Upon appeal, an order of the Vice Chancellor declaring that Bought, either personailly or as executrix, to be on the list of contributories, was affirmed. In re the North of England Joint-Stock Bankmg Co., expwrte Gouthwaite, 20 Law J. Rep. (N.a.)Chano. 188; 3 Mac. & G. 187. The limitation of three years, imposed by the 7 Geo. 4. c. 46. s. 13, is confined to a claim by a creditor against a retired shareholder, and does not apply to a claim by partners for contribution inter se. Ibid. A, by a letter written in 1840, addressed to the directors of a joint-stock banking company, agreed to take 100 shares in the company, in addition to twenty which he already held, and at the same time gave a promissory note for the amount of the calls. Entries were maide in the books of the company of the dividends on the shares and the interest on the note on A's account. A went abroad in 1842, and remained there until 1848, when he died. The company was ordered to be wound up : — Held, that A's executors were properly put on the list of contributories in respect of the 100 shares which A had agreed to take. In re the Royal Bwnk of Aus- tralia, ex parte Robinson's Executors, 2 De Gex, M. & G. 517 : affirming 20 Law J. Rep. Cn.s.) Chanc. 297. A, by a letter in 1840, addressed to the directors of a joint-stock banking company, agreed to take 500 shares in the company, in addition to twenty which he already held, and gave a promissory note for the amount of the calls. A died in 1841. In February 1842 A's executors inquired of the directors what was the number of the shares held by A, and received for answer that A held twenty shares. No informa- tion was ever given by the directors to the executors as to the agreement to take 500 shares or the pro- missory note. In 1843 the directors cancelled the note. In 1849 the company was ordered to be wound up : — Held, that A's executors were not liable as contributories in respect of the 500 shares agreed to be taken by A. In re the Royal Bcmk of Australia, ex parte Meux's Executiyrs, 2 De Gex, M. & G. 522: affirming 20 Law J. Rep. (s.s.) Chanc. 298; 4 De Gex & Sm. 331. A, the holder of shares in a joint-stock company, died in 1838, having made B and C his executors. The company was ordered to be wound up. In March 1849 the Master placed B on the list of con- tributories, as personally liable in respect of those shares, but in February 1851 he struck out the name of B, and placed instead the names of B and C as executors of A : — Held, that it was competent to the Master, under the joint-Stock Companies Amendment Act 1849, to review his decision in this respect. In re the North of England Joint-iStocJe Banking Co., ex parte Crossfeld, 20 Law J. Rep. (n.s.) Chanc. 801; 4 De Gex & S. 338: affirmed 22 Law J. Rep. (n.s.) Chanc. 208; 2 De Gex, M. & G. 128. B had taken the probate to the office of the com- pany, and, between 1838 and 1848, received the dividends on the shares, and had various communi- cations with the manager of the company in respect of them. In the greater part of these communica- tions B called himself, and was called, executor of A, but in some of them no allusion was made to his representative character. C had nothing to do with the shares. The company was ordered to be wound up in 1848 : — Held, that B and C were properly placed on the list of contributories as executors of A. Ibid. A proprietor of shares bequeathed them to an unmarried lady, who subsequently married. Neither on the death of the testatrix, nor on the marriage of the legatee, were the regulations of the deed of settlement complied with. The Court was of opinion that there was no sufficient evidence of the assent of the executor of the testatrix to the legacy, or that the directors of the company had approved of the legatee and her husband or either of them, as pro- prietors or proprietor of the shares; and, therefore, Held, overruling an order of one of the Vice Chan- cellors, (by which he had reversed a decision of the Master), that the legatee and her husband were not liable as contributories, and that the liability of the executor not having ceased, his name was properly placed on the list of contributories, without qualifica- tion. Ex parte Wood, in re the Vale of Neath and South Wales Brewery Joint-Stock Co., 22 Law J. Rep. (N.S.) Chanc. 365; 3 De Gex, M. & G. 272 : nom. Keene's Executors' case. By the deed of settlement of a joint-stock com- pany, the directors were specifically authorized to purchase shares of members under certain circum- stances; but the deed contained no express prohi- bition restricting the directors from buying up shares generally. The company, becoming embarrassed, summoned an extraordinary general meeting, at which a resolution was passed, authorizing the direc- tors to purchase and take a transfer of the shares of any member who would lend the company a sum of money equal to the purchase-money of his shares. The notice calling the meeting did not state, as re- quired by the deed, the specific object for which the meeting was called. At a subsequent general meet- ing, at which the resolution was read, the directors were authorized to give further time to the members who had not yet complied with the terms of the resolution. W L then sold his shares to a trustee for the company upon the terms stated in the reso- lution, and died before the transfer was effected; and the directors, at the instance of his executor, com- pleted the requisite formalities of the transfer; Held, that the resolution of the extraordinary -meet- ing was invalid for want of due notice ; and that the subsequent ratification of the same was inoperative, as in excess of the powers of a general meeting ; and that the executor of W L was properly retained on the list of contributories without qualification. In 182 COMPANY — Dissolution and Winding-up; (I) CoifTKlBtyTOKlES. re the Vale of Neath amd South Wales Brewery Joint-Stock Co., ex -parte Lawes, 21 Law J. Eep. (N.s.) Chanc 688; 1 De Gex, M. & G. 421: 20 Law J. Rep. (x.s.) Chanc. 295. Observations on the difficulty of applying the doctrine of acquiescence to joint-stock companies. Ibid. Where partnerships, as in the case of joint-stock companies, consist of a great number of individuals, the Court will hold them in their transactions strictly to the terms of the partnership contract. Ibid. By the provisions of a joint-stock company's deed of settlement, the company was to continue for forty years, and it was thereby in effect provided that no proprietor of shares should ever be dis- charged from his liability to the company until some other proprietor should have been substituted under the s,ime liability as attached to the original pro- prietor. The deed also provided that the executor of a deceased proprietor should not be deemed a proprietor until he should be duly admitted as such. The company being wound up under the Joint- Stock Companies Winding-up Acts, — Held, that the executors of a deceased proprietor were liable in that capacity to be placed on the list of contribu- tories in respect of partnership debts incurred sub- sequently to the death of their testator, although they had not complied with the formalities of the deed so as to be entitled to the profits of the com- pany. In re the NorOiem Coal Mining Co., ex parte BlaJcdeifs Executors, 3 iMac. & G. 726; 13 Beav. 133. Executors who, after the death of their testator, had purchased further shares, — Held, as to the latter to be contributories without qualification, though they had been treated as executors in regard to such further shares. Spence's case, re Newcastle, dec. Banking Co., 17 Beav. 203. (6) Bankrupts, A, a shareholder in a joint-stock company, was made a bankrupt in October 1848. In November 1850 the company ceased to carry on business, and was shortly afterwards ordered to be wound up. The assignees disclaimed the shares. The Master put on the list of contributories the assignees of A, in respect of losses incurred before the bankruptcy, and A, in respect of losses incurred after the bank- ruptcy. The Court ordered the name of A to be erased from the list of contributories. In re the Liverpool Marine Assurance Co., ex parte Green- shields, 21 Law J. Rep. (n.s.) Chanc. 773; 5 De Gex & S. 599. A joint-stock company completely registered be- came bankrupt. One of the members of the com- pany had previously been declared bankrupt, and had obtained his certificate. The Master placed the bankrupt's name on the list of contributories, and calls were made by the Master on him for contribu- tions to discharge the liabilities of the company in- curred before his bankruptcy: — Held, on his appeal, that his certificate was a bar to the liabilities to satisfy which the calls were made; and that the bankrupt's name ought to be removed from the list of contri- butories. In re the Merchani Traders' Ship, Loan and Insurance Co., Chappie's case, 5 De Gex & Sm. 400. (7) Allottee of Shares. An unaccepting allottee of shares in a company provisionally registered, held not to be liable even to the extent of the deposit required by the Standing Orders to be paid for the certificates of shares, for the preliminary expensesincurred in the formation of the company. In re the Direct Birmingham, Ox- ford, Reading and Brighton Rail. Co., ex parte Capper, 20 Law J. Rep. (k.s.) Chanc. 148; 1 Sim. N.S. 178. In July 1849 A gave B, the secretary of a joint- stock company in the course of formation, a power of attorney authorizing him to execute the deed of settlement in the name of A for five shares. In August a correspondence passed between A and B to this effect : A desired to terminate all connexion with the society; B requested A to pay the calls; A hoped the directors would excuse him, and B stated that the directors would not release him. Nothing further took place between A and B. In October the com- pany was completely registered, and B executed the deed of settlement in the name of A. The company was wound up: Held, that A had not revoked the power of attorney, and was properly placed on the list of contributories of the company, in respect of five shares. In re the Sea, Fire and Life Assurance Society, ex parte Burton, 21 Law J. Rep. (h.s.) Chanc. 781. Whether A could revoke the power of attorney^ gucere. Ibid. A person who had been allotted fifty shares in a projected railway company, and had signed the sub- scribers' agreement and parliamentary contract, but had not received his shares or paid his deposit, was held to have been properly placed on the list of con- tributories. In re the Staffordshire and Shropshire Rail. Co., ex parte Bowen and Martin, 22 Law J. Rep. (N.S.) Chanc. 856. A wrote a letter of application for shares in a rail- way company which was provisionally registered, and received an answer in the usual form declaring that certain shares had been allotted to him, on which he was required to pay a deposit. A paid the required deposit, but neither signed the subscribers' agreement nor the parliamentary contract. The scheme was abandoned : — Held, that A did not by his letter of application for shares, and by paying the deposits thereon, become a "member" of the company, or a " contributory," within the meaning of the Joint- Stock Companies Winding-up Acts. He merely bound himself to take such shares as he had applied for, should the company ever, in fact, be established. HuUon V. Thompson. Norris v. Cooper, 3 H.L. Cas. 161. Held, therefore, that his name had been im properly put by the Master among the list of contributories, and that the Court below had rightly ordered it to be expunged from the list. Ibid. The 7 & 8 Vict. u. 110. does not create any new liability in an allottee of shares beyond what his own contract imports. Ibid. The secretary to a company wrote to A, a member of the provisional committee, informing him that the managing committee had apportioned one hundred shares to each member of the provisional committee, and requesting to be informed, on or before a certain day, whether A would take that or any less number of shares, otherwise the committee would consider that he declined taking any. A, in answer, requested that the one hundred shares might be reserved for COMVANY— Dissolution and Winding-up ; (I) CoNTEiBtrTOWES. 183 him. The Court directed an issue to try whether A had accepted the shares. In re the Direct Birming- ham,- Oxford, Heading and Brighton Mail. Co., Onion's case, 1 Sim. N.S. 394. (8) Persons accepting Shares. The Master placed on the list of contributories a person who had accepted shares and paid the deposit upon them, but had not belonged to the provisional committee. The company never came actually into existence, owing to the requisite amount of capital not having been paid up. The Master's decision was reversed, upon the ground that persons, by taking shares in such a company, did not render themselves liable for any expenses incurred without their sanc- tion. In re the India and Australia Mail Steam- Packet Co., ex parte Maudslay, 20 Law J. Eep. (h.s.) Chanc. 9. £. Walstab had taken shares in a company, and had paid the deposit, but had since recovered back the deposit in an action at law against one of the directors: — Held, that she was not liable as a contributory under the Winding-up Act. In re the Direct Birmingham, Oxford, Reading and Brighton Mail. Co., ex parte Walstab, 20 Law J. Eep. (N.S.) Chanc. 58. A jointrstock company was completely registered, and a person applied for and accepted shares and paid a deposit on the shares allotted to him. The company's deed required that on its execution the names of the parties executing should be entered on the list of shareholders, and be returned to the Stamp Office, &c., and thenceforth they should have the privileges and be subject to the liabilities of share- holders. In this instance the deed was not executed, but the directors entered and returned, &c. the name : . — Held, nevertheless, that the name of this person had been properly placed by the Master, under a winding-up order, on the list of contributories to the debts and liabihties of the company. Ex parte YeUand, in re the Port of London Shipowners' Loan amd Assurance Co., 21 Law J. Eep. (n.b.) Chanc. 852: affirming 5 De Gex & Sm. 395. The liability of a person as a contributory under the Winding-up Acts is not a question of law, but of fact. The test of his liability in equity is his liability at law. Bright v. Mutton, 3 H.L. Cas. 341. Contributories are those only who have contracted by themselves or agents with a creditor, or who have agreed to indemnity or repay in part or in all, those who have contracted with the creditor on their own account. Ibid. A was a member of the provisional committee of a projected railway company, which had been provi- sionally registered, and the affairs of which were put under the authority of a managing committee. He accepted shares and paid a deposit on them, but did no further act. The scheme was abandoned: — Held, that, on these facts, he was not liable to a creditor for business done under the orders of the managing com- mittee towards completing the projected undertaking and converting the association into a regular company, and consequently he was not liable as a contributory under the Winding-up Acts. Ibid. (9) Former Holder of Shares. B, an original promoter of a company, executed the deed of partnership for 100 shares; he subse- quently obtained other shares, making in all 1,000 shares. The provisions of the deed of partnership were not duly observed by the directors. B paid three calls and received the only dividend ever made while he continued a shareholder; upon a fourth call B, without reference to the forms of the deed respecting sales of shares, gave up 260 shares to the directors, which' they agreed to purchase for the company, in consideration of a sum of money, and the amount of the fourth call. B afterwards sold the rest of his shares and ceased to be a partner. The company was carried on for eight years after the sale of the 260 shares to the company, but it subsequently fell into difficulties, and in winding up the affairs of the company, under the 11 & 12 Vict. c. 45. and the 12 & 13 Vict. c. 108, it was desired to place B upon the list of contributories in respect of the 260 shares, on the ground that the transaction with the directors was not valid : — Held, that the com- pany, after having dealt with a shareholder, could not treat the transaction as void for want of form, though not immaterial, which their own irregularities had rendered it impossible to observe; and the motion that the Master might review his decision was refused, with costs to be paid out of the estate. In re the Northern Coal Mining Co., ex parte Bagge, 20 Law J. Eep. (n.s.) Chanc. 229; 13 Beav. 162. A shareholder in a joint-stock company, who had sold his shares, held, under the terms of the deed of settlement of the company not to be a contributory in respect of liabilities of the company incurred pre- viously to the sale of the shares. In re the Oundle Union Brewery Co., Croxton's case, 1 De Gex, M. & G. 600. (10) Adventurer who had relinquished his Shares. A company was formed in Wales for working, on the cost-book principle, a lead-mine, a lease of which the adventurers held. The 24th rule gave power to shareholders to determine their liabilities on giving notice to the purser of a desire to retire, and depositing with the purser a transfer of their shares, and signing a relinquishment of claims on the company in respect of the shares. One of the adventurers having shares signed a document fur- nished him at the office, relinquishing his claims in respect of his shares. The company was ordered to be wound up. The Master held, that the adven- turer was still liable as a contributory in respect of the debts and liabilities of the company existing at the date of his letter of relinquishment; but, on appeal, the Lords Justices removed his name, and gave him all his costs. Bx parte Fenn, in re the Pennant and Craigwen Consolidated Lead Mining Co., 22 Law J. Eep. (h.s.) Chanc. 692 j 4 De Gex, M. & G. 285; 1 Sm. & 6. 26. (11) Where Shares ham teen forfeited. A took shares in a joint-stock company, and paid a deposit and a call, but did not execute the deed of settlement. A further call was made, which A did not notice. The deed of settlement contained clauses authorizing the directors to declare shares forfeited for non-payment of calls, and for not executing the deed of settlement. The directors declared A's shares to be forfeited for non-payment of calls. The company was ordered to be wound up: — Held, that A was not a, contributory. In re Eollma/tm's 184 COWPAl^Y— Dissolution and Winding-tip; (I) CotfTRinuTORlES. Railway Locomotive and Ca/rriage Improvement Co., ex parte Baily, 20 Law J. Kep. (n.s.) Chanc. 145. (12) Transfa-or under invalid Transfer of Shares. By the deed of settlement of a joint-stock com- pany no shares could be transferred without the consent of the directors. The company being un- prosperous, and serious disputes existing, some of the shareholders agreed to pay a sum to the direc- tors in full discharge of all their liabilities, which money was accepted, and transfers were made to two persons, and the shareholders retired. The directors applied the money partly in payment of claims of the lessors (who were also directors) of the property held by the company, and partly in payment of other claims, which were the subjects of the disputes. The company having been ordered to be wound up, the Master placed the name of one of the retiring shareholders on the Ifit of contributories, and the Master of the Rolls refused to remove him; and, on appeal, the decision of the Master and of the Master of the Rolls was supported, the agreement being idira vires, the directors having no authority thus to sanction the retirement of a body of the shareholders. £x parte Bennett, in re Cameron's Coalbrook Steam Coal and Swansea and Laugher Mail. Co., 24 Law J. Rep. (n.s.) Chanc. 130; 5 De Gex, M. & G. 248; 18 Beav. 339. A director of a company is in a very diiferent position from an ordinary shareholder, for, having the means of seeing that all the formalities of transfer required by the constitution of the company are complied with, he is bound, in transferring his own shares, to see to the regularity of the transfer; if he neglect to do so, and there be a want of formality therein, he remains a contributory. In re the New- castle-uponrTyne Marine Insurance Co., ex parte Brown, 19 Beav. 97. A company, being in an unprosperous condition, its operations, accounts, audits, dividends, &c., being suspended, and its shares worthless, the auditor sold his shares to the managing director, and gave notice, and the transfer was entered in the minute-book as approved by the directors. The transfer was, in fact, informal. The Court, doubting the hona fides of the transaction, and seeing that proper steps had not been taken to ascertain that all the necessary formahties had been complied with, — Held, that the auditor was still a contribu- tory. In re the Newcastle upon-Tyne Marine Insurance Co., ex parte Henderson, 19 Beav. 107. (13) Transferee of Sliares. A purchased fifty shares in a banking company from the directors of the company. No deed of transfer of these shares to him was executed, as re- quired by the deed of settlement of the company, but the directors gave him certificates of the shares, and he received the dividends declared on them from time to time. The company was ordered to be wound up : — Held, that A was properly put on the list of contributories in respect of these shares. In the matter of the North of England Joint-Stock Banking Co., ex parte Bernard, 21 Law J. Rep. (s.s.) Chanc. 468; 5 \)e Gex & Sm. 283. A purchased of B, a shareholder of the company. thirty shares in the company. No deed of transfer was executed, as required by the deed of settlement, but the directors gave A certificates, and he received the dividends declared on them : — Held, that the formality had been waived, and that the transfer had been complete; and that A had properly been put on the list of contributories in respect of the shares. Ibid. Equitable considerations will be regarded in deter- mining whether a party is a member of or con- tributory to the liabilities of a company under the Winding-up Acts. In re the North of England Joini Stock Banking Co., ex parte Straffon's Exe- cutors, 22 Law J. Rep. (n.s.) Chanc. 194; 1 De Gex, M. & G. 576; 4 De Gex & Sm. 266. Distinction between the cases where directors are acting in substantial contravention of the objects and scope of their deed of settlement, as in Ex parte Morgan, and Ex parte Lawes, and where their course of dealing in the transfer of shares has not been in compliance with the strict formalities of the deed. Ibid. J S purchased 120 shares in the company, and the requisite notices of and consent of directors to such transfer were given. J S did not execute the deed of settlement, but he executed a deed of transfer of ten of these shares, by which he covenanted with the public officer of the company to observe all the stipulations, &c. of the settlement deed. The set- tlement deed provided that one execution of the deed fay a shareholder was sufficient for all his shares, J S afterwards purchased other shares, making alto- gether 700. No formal deed of transfer was exe- cuted in respect of any of these shares (except as above), but the consent of the directors to such trans- fer was testified by writing across the notice of sale " Transferred," which was signed by one of the direc- tors. The deed of settlement provided that such consent should be testified by the directors signing their name in the margin of the deed of transfer, and that all transfers not made in accordance with the deed of settlement should be void. .7 S had received dividends upon the 700 shares : — Held, that the re- quisitions of the deed had been complied with in substance, and that by the course of dealing between the parties, the directors could not dispute J S's title, nor J S his liability as a member; and, conse- quently, that J S was liable as a contributory in re- spect of his 700 shares. Ibid. J S sent to the office of the company a deed of covenant in respect of a transfer of shares, apparently executed by himself, though in fact his name was signed by a third party; and he acted under the deed, and received benefits under it : Held, that his executors were estopped from saying that it was not his deed. Ibid. In case of a contract for purchase of shares, and an incomplete or informal transfer, the vendor has an equity to call upon the purchaser to clothe him- self with the legal title ; and this equity will impress upon the latter the character of a purchaser upon a completed contract. Ibid. A mining company was professed to be carried on upon the cost-book principle. The 23rd rule of the company provided that a written notice of any in- tended transfer should be sent to the purser, and that no share should be sold unless in a particular form, and that no transfer in any other form should COMPANY — Dissolution and Winding up; (I) Contributoribs. 185 be valid. The 24tl) rule provided that any share- holder might determine his liability upon giving no- tice to the purser of his intention, and depositing the transfer, and signing a relinquishment of all claims upon the company. The company was ordered to be wound up. S, a shareholder, had entered into a contract with M to sell to him his shares, and he was to take them subject to the conditions on which they were then held. The shareholder S went with the shareholder M to the oflSce of the company, and deposited with the purser a transfer of the shares in the required form, but no previous notice was given of the intended transfer. The Master placed the name of M upon the list of contributories; and the Vice Chancellor affirmed that decision. Upon ap- peal to the Lords Justices, — Held, that M was pro- perly placed upon the list; and, before the full Court of Appeal, held, that the liability of M, as such con- tributory, was not limited to the time from which he took a transfer of the shares. JEa parte Mayhew, in re the Pennant cmd Craigwen Consolidated Lead Mining Co., 24 Law J. Rep. (k.s.) Chanc. 353; 5 De Gex, M. & G. 837. (14) Where Object of Cormpamy altered. A prospectus was issued for the establishment of a company. A B took shares and paid his deposit. Afterwards, at a meeting of shareholders, the scheme was greatly varied. A B was present, but took no part in the matter, and never after in any way inter- fered. The company was formed on the new scheme, and failed : — Held, that A B was not a contributory. Goldamid's ease, in re the British and Americam Steam Navigation Co., 16 Beav. 262. A B took ten shares in a company intended to be formed for specified objects, and on stated principles. The projectors afterwards materially varied its cha- racter. A B did no act by which he assented to the variation, or adopted the new company. Some time after the directors agreed that nine of A B's shares should be cancelled, and that A B should remain a shareholder for one : — Held, that A B was not a contributory in respect of the nine shares. Meyer's case, in re the British and American Steam Naviga- tion Co., 16 Beav. 383. (J) Extent of Mobility of. (1) /» general. It having been decided that Mr. Upfill was a con- tributory, the Master made a call upon all contribu- tories, rateably, according to their number of shares : — Held, upon appeal, that the Master could not make a call upon any contributory u/til he had de- cided that the contributory was liable to the pay- ment of the debts in respect of which the call was made. In re the Direct Birmingham, Oxford, Bead- ing amd Brighton Rail. Co., ex parte UpJiU, 20 Law J. Rep. (h.s.) Chanc. 480j 1 Sim. N.S. 395. A contributory, under the Winding-up Act, in respect of 173 shares purchased by him, had cove- nanted in a deed, transferring a portion of the shares to him, to pay all instalments and sums of money in respect of the shares transferred, and to execute the company's deed of settlement. The contributory having died without executing the settlement, — Held, on petition (Wightmam, J. assisting and concurring), that the company were not entitled to rank as specialty creditors against the estate of the contribu- , Digest, 1850-1855. tory for any of the shares except those vested in him by the deed of transfer, ffay v. Willoughby; May V. Flintoff; In re the North of Englamd Jovnt-Stoclc Banki/ng Co., ex parte Morrison, 22 Law J. Rep. (h,s.) Chanc. 249; 10 Hare, 242. The provisional directors of a projected railway company, pursuant to a resolution, transmitted a circular letter to M, amongst others, by which they undertook to return to the subscribers the whole deposit in case they should not be able to obtain their act of parliament. On the faith of this letter, M subscribed for shares and paid the deposit and executed the subscribers' agreement, a deed under seal, which contained a covenant by the subscribers to pay the expenses of the provisional directors, whether the act passed or not. The company failed to obtain theu: act, and it was ultimately ordered to be wound up. M was placed upon the list of con- tributories; and the Master made a general call upon all the contributories, for the purpose of de- fraying the expenses of the company. The Vice Chancellor refused to discharge that call as against M : — Held, upon appeal, discharging the order against M, that the provisional directors, by sending that letter to M, had as between themselves and M, rendered themselves primarily liable to the expenses; and that the call ought to be made in the first instance exclusively against those primarily liable, except in the case where they were confessedly insolvent, or there was difficulty in recovering the money from them. In re the Dover amd Deal Bail. Co., ex parte Mowatt, 22 Law J. Rep. (h.s.) Chanc. 578; 3 De Gex, M. & G. 254: reversing 1 Drew. 247. A railway company was projected, but proved abortive. The subscribers' agreement was of three parts: the subscribers of the first part; proposed trustees of the second part ; and the managing directors (who were some of the parties of the first part) of the third part. The deed recited that the managing directors had accepted that office and subscribed the requisite number of shares. The deed contained a covenant by the subscribers to indemnify the managing directors against all liability. In the proceedings under the Winding-up Acts, it was proved that, before the execution of the deed by any person, Mr. F, one of the persons named as a managing director, had refused to accept that office or to execute the deed; and it was not proved that Mr. M or Mr. C (two other of such persons) had ever accepted office. Only nineteen subscribers executed the agreement, and none of the managing directors executed it or took shares, but, except as before stated, they accepted office and acted. The parties settled on the list of contributories were the acting directors and the subscribers; and it becoming necessary to make a call for debts and costs, the Master made a call on all the contributories rateably, treating each director as the holder of the number of shares requisite to a qualification for office ; and as to the costs made a call upon all the contributories equally : — Held, upon appeal, that the directors having knowingly made misrepresentations of fact, they could not have the benefit of the covenant; that as the subscribers acted on the faith of such repre- sentations, they had an equity to restrain the direc- tors from enforcing the covenant; that the directors were primarily liable for the debts; that, under the 2B 186 COMPANY — Dissolution and Winding up; (I) Conteibptoeies. Winding-up Acts, the subscribers could assert the invalidity of the deed without taking proceedings to impeach it; and that the directors were primarily liable to the costs as well as the debtsi and the call for both was discharged, as against the subscribers. Ex parte Carew, m re the J)over, Hastings amd Brighton Junction Sail. Co., 24 Law J. Eep. (n.s.) Chanc. 769. The subscribers' agreement of an intended railway company provided that the committee of manage- ment might dissolve and wind up the affairs of the company at any time before the act of incorporation was obtained. Under these powers the committee of management dissolved the company, and proposed to return to each scripholder a certain amount of the deposit. Before such amount was received by any scripholder he had to sign an assent to the can- cellation of his scrip, and he became entitled to receive such further sum as the committee of manage- ment might declare payable after a final settlement of all claims upon the company. The company being subsequently wound up under the Winding-up Acts, a list of contributories divided into several classes was settled, and a call was made for the costs incurred in the winding up ; — Held, that the Master was not justified in making the call exclu- sively on that class of the contributories which included those scripholders who had received back part of the deposit; but that such class being entitled to participate in any further sum which might be declared payable, was liable pari passu with all the other contributories to the call made to discharge the expenses incidental to the winding up. In re Rugby, Warwick amd Worcester Rail. Co., Preece and Mvam's case, 2 De Gex, M. & G. 374. A was in his absence chosen by the provisional committee of a provisionally registered railway to be one of the managing committee, to whom, by resolutions of the provisional committee, power was given to allot shares and to apply the funds of the company in payment of expenses. The scheme having proved abortive, the allottees recovered their deposits in actions against A, and other persons who had been appointed to be members of the managing committee. The members of the managing com- mittee thereupon appointed a sub-committee, of which A was one, to take measures to protect the members of the committee. A was a constant attendant at the meetings of the sub-committee, and took an active share in providing for some of the demands on the committee of management, and resisting others : — Held, that he thereby sanctioned and adopted the former proceedings of the managing committee in which he had not taken part, and was liable to contribute in respect of them. Spotiis- woode's case, and Amsin^Je's case, 6 De Gex, M. & G. 345. B, who was appointed and acted as a member of the managing committee of a provisionally regis- tered railway company, with power to contract with engineers for the requisite surveys, &c., was one of the members liable in respect of an order given to the engineers, who afterwards, being unable to com- plete the contract by the required time, offered to Forego it, and to substitute a contract for a part of the line only, on the terms that the completion of the latter within the time should not be required. At a meeting at which B was not present, the majority of the managing committee present resolved to accede to the proposal. B at a subsequent meeting op- posed the confirmation of the resolution. Afterwards he concurred in resolutions for providing means of satisfying the engineers' demand among others : — Held, that the substituted contract was only a modification of the contract in respect of which B was liable, and that, under the circumstances, B was liable to contribute to the payment of the engineers' demand. Ibid. Contributions may be enforceable on general principles of justice, independently of contract. Ibid. (2) Debts and Losses before Transfer. In January 1847, A transferred some shares held by him in a joint-stock banking company to B. By the deed of settlement it was declared, that the holder of shares, after a transfer, should be free from all subsequent obligations in respect of them, but that this should not extend to release him from his proportion of losses sustained by the company up to the period of his ceasing to be a member; and it was further declared, that half-yearly balance sheets should be exhibited to the shareholders, shewing the profits and losses of the company, and that such balance sheets should be binding and conclusive on all the shareholders, unless error was shewn within a given time. The half-yearly balance sheets, before and immediately after A's transfer, shewed profits to a large amount, and dividends were declared accord- ingly. In 1849 the bank failed for a very large amount: — Held, that the losses to which a trans- feror of shares was liable, were losses appearing upon the balance sheet ; and none such appearing, and A having ceased to be a member for three years, he was properly excluded from the list of contributories. In re the North of Englamd Joint-Stock Banlcing Co., ex parte Holme, 22 Law J. Rep. (n.s.) Chanc. 226; 2 De Gex, M. & G. 113: affirming 20 Law J. Eep. (n.3.) Chanc. 300; 4 De Gex & Sm. 312. Qucere — whether there could be any losses within the meaning of the clause so long as any part of the capital of the company remained uncalled up ? Ibid. The deed of settlement of a company provided that when any shares in the capital should be trans- ferred to a new proprietor, the responsibilities of i previous owner should cease, and such previous owner should be exonerated and discharged from all " subsequent claims," demands and obligations in respect of the same shares, and from all future ob- servance of the covenants of the deed in respect of the same shares: — Held, affirming the decision of the Court below, that the transferee of shares was subject to the debts and liabilities of the company, as well those incurred before, as those subsequent to the date of his transfer. In re tlie Monmouthshire and Glamorganshire Joint-Stock Banking Co., ex parte Cape's executor, 22 Law J. Rep. (h.s.) Chanc. 601 ; 2 De Gex, M. & G. 562. Semble — -In the absence of express provisions in the deed of settlement to the contrary, the trans- feree would be held to stand in the place of the original owner for all purposes. Ibid. A had been a member of the provisional com- mittee, and had accepted shares in a company which was ordered to be wound up. The Master placed A's name on the list as a contributory to the expenses of the committee incurred between the COMPANY — Dissolution and Winding up; (I) Contuibutoeies. 187 14tli October, 1845, the day on which he accepted his shares, and the 30th November, 1845, on or before which day the company ought, according to the Standing Orders, to have deposited their plans, &c. in order to obtain an act of incorporation in the then next session. But they did not do so, nor did they after that day take any steps towards the esta- blishment of the company : Held, that A was liable to contribute to the expenses incurred between the 14th October and 30th November, 1845, both inclusive, but was not liable to contribute to the expenses incurred before the former day or after the latter. In re tlie Direct Birmimgham, Oxford, Reading and Brighton Rail. Co., Bright'a case, 1 Sim. N.S. 602. (3) Borrowed Money and Advances. Directors and shareholders in an unincorporated company made hondfide advances of money for the purpose of carrying on a mine established abroad, and without which advances the property would have been wholly ruined. The money was applied to purposes for which these parties and the other shareholders were jointly personally liable. The company was ordered to be wound up, and the Master made a call on these directors and share- holders and the other shareholders, as contributories, and he allowed these parties their several advances as set-off against their calls as contributories : Held, on appeal, that the Master was correct. In re the Oermam Mining Co., 22 Law J. Kep. (n.s.) Chanc. 926; 4 De Gex, M. & G. 19. The deed of settlement of a joint-stock company established for erecting and maintaining a corn ex- change, provided, that the capital of the company should consist of a sum of 4,000/. divided into shares of 51. each ; and the directors were empowered from time to time to make calls upon the shareholders not exceeding the amount of their shares unpaid, and also to borrow money to the extent of 2,000^. for the purchase of the site and for erecting the building, instead of calling for instalments upon the shares. In the purchase of the site and the erection of the building the directors expended more than double the amount of the capital, having borrowed the money of the shareholders and of their bankers, one of whom was a director of the company. An order was made for winding up the company, and a general call was made upon all the shareholders : Held, upon appeal, discharging the order for a call, first, that, upon the construction of the deed, the directors had power to borrow only to the extent of the unpaid capital. Secondly, that the liability of the shareholders was limited to the amount of their respective shares unpaid, and the directors were pri- marily answerable for the excess of expenditure. Thirdly, that a creditor, having notice of the limited liability under the deed, was bound by such notice. Fourthly, that the company was not a trading part- nership, and therefore the directors could not, in excess of their authority under the deed, pledge the credit of the shareholders even to a creditor who had no notice of the deed. In re the Worcester Com Exchange Co., 22 Law J. Rep. (n.s.) Chanc. 593; 3 De Gex, M. & G. 180. A joint-stock company was formed in England for working mines in Germany, subject to the terms of a deed of settlement, which provided that the capi- tal should he 50,000i., and gave no powers to the directors to raise money except by the creation of new shares. The capital was paid up and proved insufficient for working the mines. The wages of the miners being in an'ear, and other debts being due, the managing directors obtained advances from some of the shareholders for the purpose of paying those debts and preventing the mines from being seized under the law of the country. The directors also borrowed other sums on their personal guaran- tie from the bankers of the company, not for pay- ment of debts, but for carrying on the business of the company in its ordinary course, and they after- wards repaid the bankers these advances. The com- pany was wound up under the Winding-up Act : Held, first, that the advances made by the share- holders to pay debts of the company might be set off by them, with interest, against a call. Secondly, that although the advances made by the bankers did not constitute a debt due to them from the company, the directors having no power to borrow, the direc- tors were entitled to be allowed the amount ref(aid by them to the bankers, the directors being trustees, and in that character entitled to indemnity from their cestuis que trust against expenses iondfide in- curred. Thirdly, that the distinction between advances by shareholders to pay necessary expenses and a loan contracted by them is a sound one. Ex parte Chippendale, in re the Oermam Mvni/ng Co., i De Gex, M. & G. 19; 22 Law J. Rep. (n.s.) Chanc. 926. (4) Ouarantie to return Deposit. Three of the directors of a projected railway company, with their letters of allotment, sent a letter to each allottee, containing the following passage; — "In the event of the act not being ob- tained, the directors undertake to return the whole of the deposits without deduction." The act was not obtained, and the company was ordered to be wound up. The Court having decided that as between these three directors, and allottees who had signed the subscribers' agreement (by which it was stipulated that the expenses of the provisional directors in raising the company should be borne by the parties thereto, whether the act was obtained or not), on the faith of the guarantie, the three directors were primarily liable for all the expenses, the Master made a call upon them. One of the Vice Chan- cellors refused an appeal motion from an order for the call, and the Lords Justices affirmed the decision of His Honour, by dismissing the appeal, but with- out prejudice to any question between the three directors who signed the guarantie on the one hand, and the other directors on the other ; and also with- out prejudice to any question between those three directors and the other directors on the one hand, and such of the allottees as might have signed the deed not on the faith of the guarantie on the other hand. Ex parte Londesborough, in re the Dover, Deal and Cinque Ports Rail. Co., 22 Law J. Kep. (us.) Chanc. 736; 4 De Gex, M. & G. 411. Three directors of a projected railway company, with their letters of allotment sent to each allottee a letter saying, " In the event of the act not being obtained, the directors undertake to return the whole of the deposits, without deduction." The Master decided, that the three directors who signed' the 188 COiiPA^Y —Dissolution and Winding up. letters were alone liable, and made a call on them aceordinglj' for the expenses incurred. One of the three paid the whole, and then sought for contribu- tion from the other fiTC directors, who had not signed the letter : — Held, that the decision of the Master was correct, and that the three alone were liable. Ex parte Londesborough, in re the Dover, Deal and Cingue Ports Rail. Co., 23 Law J. Eep. (s.s.) Chanc. 738; 4 De Gex, M. & G. 411. (5) Costs of Winding ivp. The Master having made a call for payment of costs, incurred under a winding-up order, upon all the contributories rateably, according to the number of shares taken by each of them, it was held, that no call for payment of costs could be made before the Master had ascertained that such costs had been in- curred in respect of some liabilities which attached to each particular person. Master's order discharged. In re the Direct Birmingham, Oxford, Heading and Brighton Rail. Co., ex parte Hunter, 20 Law J. Kep. (n.s.) Chanc. 483; 1 Sim. N.S. 435. An association was provisionally registered, but no deed of settlement was executed, and it was ordered to be wound up. The Master, by his report, found that the only contributories were provisional and managing committee-men, who had agreed to take shares, and thereby became liable equally among them to the expenses of forming the concern and to the expenses of its being wound up;thatthe greater part of the expenses had been paid by means of calls and other payments; but for paying all the remaining expenses, costs of winding up, &c., which he estimated at a certain sum, money must be raised by a call of 60/. on each of the contributories. He accordingly made an order for a call, dated the same day as his report; — Held, that each contributory was liable to pay the call ; that the principle on which the Master had proceeded was correct; that it was no objection to the call that if all the con- tributories paid, more than sufficient would be raised; and that it was unimportant whether the liabilities were liquidated or unliquidated. Ex parte Dale, in re the Wolverhampton, Chester and Birk- enhead Rail. Co., 21 Law J. Eep. (m.s.) Chanc. 341; 1 DeGex, M. & G. 513. Held, also, that the call, being founded on a report, which the contributories had an opportunity of questioning, but which they did not question, could not be impeached on the ground of any in- validity of the report. Ibid. (c) Rights of. An order was made for the winding up the affairs of a joint-stock company; the property of the com- pany being about to be sold by auction, a meeting was held for the purpose of fixing a reserved bid- ding; at the meeting, the contributories claimed a right to be present, but the Master excluded them. From this decision they appealed, and the Vice Chancellor reversed the Master's determination ; and, on an appeal from the order of the Vice Chancellor, it was held, that the 38th section of the statute 11 & 12 Vict. c. 45. did not give the Master autho- rity to exclude the contributories. In re the Imr- perial Salt and Alkali Co., 21 Law J. Rep. (n.s.) Chanc. 224; I De Gex, M. & G. 64; 5 De Gex & Sm. 34. (J) Calls. A signed a deed by which he and other parties agreed to pay all the expenses incurred and to be incurred, with the view to the formation of a pro- jected railway company, such expenses to be assessed rateably on the' sums subscribed. Some expenses were incurred, but the undertaking was abandoned, and the company was ordered to be wound up under the Joint-Stock Companies Winding-up Act. The Itlaster made a list of contributories, in which all the parties to the subscription contract were in- cluded. It appeared that a suit and an action were in prosecution by and against the official manager, and that the official manager had no assets in hand, and that it was necessary that some funds should be supplied. The Master made a call on all the sub- scribers to the subscription contract. This was resisted by some of the subscribers on the ground that the managing committee, who were included in the list of contributories, had received large sums which they had not accounted for, and that these sums ought in the first instance to be obtained and applied. In answer to this, evidence was given that the persons forming this committee were not in solvent circumstances : — Held, that, under all these circumstances, the Master had authority to make the call, and that he had properly exercised his discretion in making it. In the matter of the London and Birmingham Extension andNorthampton, Daventry, Leamington and WarwicTc Rail. Co., ex parte Gay, 21 Law J. Rep, (n.s.) Chanc. 284; 1 De Gex, M. & G, 347; 5 De Gex & Sm. 122. A subscribed the deed of settlement of a joint- stock company, instituted for the purpose of granting assurances on ships, for 1,000 shares of 25/. each. By the deed of settlement it was declared that a deposit of 21. 2s, should be paid on each share, and that a further call of 21. 2s. might be made by the directors, but that no further call should be made without a previous resolution of the shareholders assembled at a general meeting. The company granted several policies. The company was after- wards made bankrupt, under the 7 & 8 Vict. u. Ill, and debts were proved against it to the amount of 70,000/., and upwards. It was afterwards ordered to be wound up under the Joint-Stock Companies Winding-up Act. The Master placed A on the list of contributories, and made an order that he should pay 25,000/. Motion, that the order as to the call should be discharged was refused. In re the Mer- chant Traders' Ship Loan and Assurance Associa- tion, ex parte Lord Talbot, 2 1 Law J. Rep. (n.s.) Chanc. 846; 5 De Gex & Sm, 386. A decree was made declaring that an incorporated company was bound to indemnify its retired direc- tors, and a reference was made to the Master. An order being afterwards made to wind up the company, the official manager was substituted in the suit. On further directions an order for payment and indem-, nity was made on the official manager, and the Master was directed to make proper calls on the contributories for that purpose. Form of order in such a case where the plaintiffs were themselves contribu- tories. GUadovi v. the Hull Glass Co., IS Beav. 200, (K) Actions, The 73rd section of the 11 & 12 Vict, t. 45. (the COMPANY — Dissolution and Winding «p. 189 Winding-up Act) authorizes a plaintiff having a claim against a dissolved company, subject to the provisions of that act, to proceed with his action against such company, " after proof or exhibiting or making such proof as he may be able, of his debt or demand before the Master" : — Held, that the plain- tiff, who had exhibited such proof and had obtained- the Master's allowance, was entitled to proceed with his action, and was not bound to take any further step, as, for instance, to endeavour to obtain pay- ment of his demand. QuiBre — whether allowance of proof by the Master is essential in such a case. Prescott V. Madow, 20 Law J. Rep. (n.s.) Exch. 18; S Exch. Rep. 726. Two members of a joint-stock company, but which was not completely registered, in their own names, entered into a contract by their agent, but which was, in feet, for the benefit of the company : — Held, that they might sue and be sued upon the contract. Clay v. Sovcihen, 21 Law J. Rep. (h.s.) Exch. 202; 7 Exch. Rep. 717. The 3 & 4 Vict. c. 95, after reciting that several persons had formed themselves into a company or partnership for effecting assurances on lives, and that dilEculties might arise in recovering debts due to the company, since by law all members of the company must be named in every action or suit for such purpose, enacted that all actions and suits against any person indebted to the company, or upon any bonds, covenants, bills of exchange, promissory notes, or agreements, and, generally, all other pro- ceedings whatsoever at law or in equity, by or on behalf of the company, against any person or per- sons, whether such person or persons be a proprietor or proprietors of the company, or not, shall be com- menced in the name of the chairman, or of a direc- tor, or the secretary of the company, as the nominal plaintiff: — Held, that the company might sue, in the name of the nominal plaintiff, one of its own members for a debt due to the company. Reddish V. Pimwck, 10 Exch. Rep. 213. (L) Practice. {a) 'Wmdmg itp in Ohamhers. A company may be wound up in chambers under the acts 1848 and 1849, instead of by the Master. In re the Newcastle, Shields, amd Simderlamd Unimi Bank, 17 Beav. 470. (J) Advertisement of Petition. An advertisement under the Joint-Stock Com- panies Winding-up Act stated that the petition would be heard on " Satmday, the 20th of Decem- ber." The 20th being on a Thursday, the Court would not hear the petition, but required fresh no- tices to be given. In re the Jovnt-Stoch Companies ) Act, 13 Beav. 434. (c) He-hearing. The 33rd section of the Joint-Stock Companies Amendment Act, 1849, does not apply to the case of a motion to re-hear an order of the Lord Chancellor. In re the Direct Exeter, Plymouth cmd Devonport Sail. Co., ex pwrte Besley, 20 Law J. Rep. (m.s.) Chanc. 385; 8 Mac. & G.287. A special application for leave to move for a second re-hearing does not necessarily require notice. Ibid. (d) Appeal. The 33rd section of the statute 12 & 13 Vict, c. 108. (the Joint-Stock Companies Winding-up Act Amendment Act) is imperative; and therefore the Court has no authority to enlarge the time for giving notice of appeal, after the three weeks from the making of the order complained of has elapsed. £!x pairte Qreen, in re Cameron's Cocdbrook Steam Coal and Swansea amd Laugher Sail. Co., 24 Law J. Rep. (n.s.) Chanc. 331. Seven persons were elected the managing com- mittee of a company, and performed acta in that character. The scheme proved abortive. Actions were brought against one of the seven, and he ob- tained an order for winding up the company. Others of the seven had made a similar attempt, but were not in time to do so before the order was actually obtained. An official manager was appointed, and the order was prosecuted with the concurrence of all seven. Four of the seven appealed from the order for winding up, and also from an order for a call to pay the coats and expenses and the debts; but it was held, first, that whether the order for winding up were rightly or wrongly made, the four could not move to discharge it ; and, secondly, that the order for the call was properly made on the seven members of the managing committee. Ess parte Woohner and others, in re the Direct Exeter, Plymouth and Devonport Bail. Co., 21 Law J. Rep. (n.s.) Chanc. 883; 2 De Gex, M. & G. 665; 6 De Gex & Sm. 117. The general rule of practice of the Court of Chan- cery, by which a successful appellant is not allowed the costs of his appeal, does not apply to proceedings under the Winding-up Acts, but the costs of all the proceedings are in the discretion of the Court. In re the'North of Englamd Joint-StocJe Banhing Co., em parte Hall, 1 De Gex, M. & G. 1. In a case where the official manager succeeded before the Master, and on appeal before the Vice Chancellor, 'in obtaining the name of a party to be included in the list of contributories, but these decisions were ultimately reversed by the Lord Chancellor, the costs of all the proceedings, including the costs of the appeals and in the Master's ofHce, were ordered to be paid by the official manager to the party sought to be charged. Ibid. (c) Order to stay Proceedings. An order was made for winding up an abortive railway scheine. A list of contributories was pre- pared, but it contained the word "adjourned" writ- ten in pencil against some names. Six persons were comprised in the names on this document. The Master made a call upon the six, and, against the consent of the official manager, compromised the liabilities of five of these persons by payment of a stated sum each. The sixth person was a managing committee-man, and although he at one time denied his liability before the Master, he ultimately consent- ed to remain. He then gave two notices of motion, one to remove his name from the list, and the other to discharge the order for a call, or that the compro- mise might be set aside. One of the Vice Chancel- lors considered that the order to wind up could not be sustained, aa there was, in fact, no company to wind up, and, therefore, he discharged the order for 190 COUPA'SY— Dissolution and Winding up; (L) PbACTICB. the call, and ordered all further proceedings under the winding-up order to be stayed. The official manager appealed. On tlie hearing of the appeal, this contributory offered to pay back the money which the other five had paid on the compromise : — Held, that the Court below htid no jurisdiction to make the order to stay proceedings, it being a rule of the Court that where necessary parties, being served, do not appear, the terms of the notice of motion can- not, so far as they are interested, be materially de- parted from; that, notwithstanding the dissent of the official manager to the compromise, and the offer of the party moving to repay the money the compro- mising contributories had paid, the compromise could be supported ; and that the list of contributories was not such as the act of parliament required. Sx parte Underwood, in re the Eastern Counties a/tid South- end Junction Sail. Co., 23 Law J. Rep. (n.s.) Chanc. S4.3 ; S De Gex, M. & G. 677. The Master charged with the winding up of an abortive scheme settled on the list of contributories the members of the managing committee and parties who had signed the subscribers' agreement; but as the latter had, in that instrument, covenanted to In- demnify the managing committee from all costs, the Master made a call upon them exclusively, as being primarily liable. From this order three of the parties appealed, seeking its discharge, or for leave to ap- peal from the settlement of the list of contributories; and, on the hearing, one of the Vice Chancellors directed all the contributories to be served, and, al- though all did not appear when served, his Honour made an order discharging the call and directing a stay of all proceedings under the winding-up order, and directing the official manager to repay all monies he had received. From this order the official ma- nager appealed : — Held, that the order of the Vice Chancellor must be discharged altogether, and an order be substituted discharging the order for the call, the materials before the Court not being suffi- cient to support it; and all parties to be paid their costs of the proceedings before the Vic^ Chancellor and upon the appeal out of the estate. Ex pa/rte Carew, in re the Dover, Hastings and Brighton Junction Rail. Co., 23 Law J. Rep. (n.s.) Chanc. 761; 5 De Gex, M. & G. 94; 2 Sm. & G. 1. The circumstance that an order goes beyond the notice of motion on which it is made, however imma- terial as between those who have appeared and taken part in the discussion upon the motion, is not so as to those parties interested in the subject-matter of the motion, who, being served with notice thereof, did not appear thereon, for these are entitled to rest on their right to assume that nothing beyond what is contained in the notice will be asked upon the motion. Ibid. Qucere — whether supposingall whohad been served had appeared, such an order would be sustainable, being made in the absence of the creditors of the company who had proved their debts before the Master under the winding-up order. Ibid. A railway company was ordered to be wound up. A claim was made before the Master, but not pro- secuted. One contributory agreed to pay all debts proved before the Master, and thereupon an order was made to stay all proceedings under the winding- up order. In the same matter two solicitors obtained an order for the taxation and payment of their bills of costs. The taxation was commenced, and had not concluded when the order to stay proceedings was made: Held, that the claimant was entitled to pro- ceed before the Master to exhibit such proof as he might be able. Ex parte Clifton, Ex parte Booh, and Ex parte Thompson, in re Dover, Deal and Cinque Ports Kail. Co.. 24 Law J. Rep. (n.s.) Chanc. 83; 5 De Gex, M. & G. 743. Held, also, that the solicitors were entitled to pro- ceed with the taxation of their bills of costs. Ibid, if) Discharging the Order. A petition to discharge a winding-up order dis- missed, with costs, on account of delay in presenting it. In re the Chepstow, Gloucester and Forest of Dean Hail. Co., 2 Sim. N.S. 11. _ An application may be made by motion, with notice, to discharge a winding-up order which has been made upon petition. In re Metropolitan Carriage Co., Clarice's case, 1 Kay & J. 22. Where such an application was made fifteen months after notice of the order, and when consider- able costs had been incurred in the winding up, al- though made by a person directly after he was placed upon the list of contributories, and although sup- ported by evidence of facts which, if disclosed, on the hearing of the petition would have prevented the order : — Held, that the Court could not discharge the order unless the applicant would consent to pay the costs which had been incurred by the official manager, and as he declined to do so the motion was refused, with costs. Ibid. (g ) Form of Master's Certificate. The Master certified that he had included A's name in the list of contributories not as a share- holder, but as a contributory in respect of any expen- diture which he might be proved to have incurred. The Court held the certificate to be informal, and directed the Master to review his certificate, with liberty to either party to adduce fiirther evidence. In re the Shrewsbury and Leicester Direct Fail Co., Fiddle's case, 1 Sim. N.S. 402. (A) Feviewing Master's Feport. The Master having placed Mr. Best upon the list of contributories, his decision was reversed by Knight Bruce, V.C. and the name expunged. After the decision in Upfill's case, the Master reviewed his re- port, and again placed Mr. Best's name upon the list : — Held, that a party can, under no circumstances, be summoned a second time before the Master, as to his liability for any shares in respect of which he has once been excluded from or included in the list of contributories. The Master's decision reversed. In re the Direct Birmingham, Oxford, Heading and Brighton Fail. Co., ex parte Best, 20 Law J. Rep. (n.s.) Chanc. 125; 1 Sim. N.S. 193. The 17th section of the Winding-up Amendment Act, 1849, is retrospective as well as prospective^ and gives the Master power to review a decision made by him prior to the passing of that act. In re the North of England Joint-Stock Banking Co., ex parte Cross- field, 22 Law J. Rep. (N.s.) Chanc. 208; 2 DeGex, JM. & G. 128; 20 Law J. Rep. (k.s.) Chanc. 301; 4 De Gex & Sm. 338. The question whether the Master has properly exercised his discretion in reviswing his decision, par- COMPANY — Execution against Shareholders. 191 ticularly with reference to the circumstances that may have happened between his first and second decisions, may properly be brought before the Court by way of appeal. In re the North ofEngUmd Joint- Stock Banking Co., ex parte Orossfield, 20 Law J. Kep.(if.3.)Chanc.301; 4De Gex &Sm.338: afiirm- ed, 22 Law J. Rep. (n.s.) Chanc. 208; 2 De Gex, M. & G. 128. (t) Proof of Deht. A party claiming to be a creditor of a company ordered to be wound up, is entitled to produce all his evidence before the Master to establish it. Ex parte Priehard, in re the Warwick and Worcester Sail. Co., 23 Law J. Rep. (n.s.) Chanc. 9S8; 5 De Gex, M. & G. 495. {j ) Service of Notice. A notice of call was sent to a contributory out of the jurisdiction, by a letter posted and directed to his last known place of residence in England, and at the same time by a letter posted and directed to him at the place out of the jurisdiction where he was last quartered on military duty. It did not appear upon the evidence that the notice had not come to his hands: — Held, that the notice was well served within the 108th section of the 11 & 12 Vict. c. 45. Ex parte D' Urban, in re the Direct Exeter, Ply- mouth, and Devonport Rail. Co., 24 Law J. Rep. (n.s.) Chanc. 701. Held, also, that he was liable for costs incurred by the official manager in unsuccessfully endeavouring to place various persons on the list of contributories, he (this contributory) having had an opportunity of examining the documents in the Master's office, and of disputing the validity of the call, and having failed in so doing. Ibid. (Jc) Costs of Witnesses. Where an alleged contributory, whose name is finally settled on the list of contributories of a joint- stock company ordered to be wound up, is summoned to attend before the Master, under the 64th section of the act of 1848 (11 & 12 Vict. c. 45.), semble (per Lord Justice Tv/rner) that he is entitled to have his travelling expenses tendered to him at the time of the service of the summons. Ex parte Mercer, in re the Northern and Sotithern Connecting Rail. Co., 23 Law J. Rep. (N.s.) Chanc. 246; S De Gex, M. & G. 26j 2 Sm. & G. 87. 4. EXECUTION AGAINST SHAREHOLDERS. (A) Railway and other Ikcorpoeated Com- panies. Under section 36. of 8 & 9 Vict. c. 16. the Court will not order execution to issue against a share- holder of a company without a scire facias, but will only, upon sufficient ground being shewn, -allow a scire facias to issue, in order that execution may be obtained against such shareholder to the extent pointed out by that section. A suggestion is not the proper course. Hitchings v. the Kilhemmj, &c. Rail. Co., in re Emery, 20 Law J. Rep. (n.s.) C.P. 31; 10 Com. B. Rep. 160; 1-L. M. & P. P.C. 712. It is not sufficient, in order to obttiin leave for issuing such scire facias, to shew that f,. fa.'a have been issued against the effects of the company into two counties, and nuUa bona returned to him. Ibid. A scire facias may issue at the suit of a judgment creditor of a company, subject to the provisions of the 8 Vict. c. 16. s. 36. (the Companies Clauses Consolidation Act), against a shareholder; but, qucere. whether that is the sole remedy. Devereux v. the Kilkenny a/nd Great Southern and Western Rail. Co., in re Emery, 20 Law J. Rep. (n.s.) Exch. 37; 5 Exch. Rep. 834. When it is proved to the satisfaction of the Court, upon the motion for such scire facias, that an execu- tion has been issued against the company, and that it has been unproductive, the issuing of the scire facias is still a matter of discretion with the Court. Ibid. Where a company was established for making a railway in Ireland, although no proceedings had been taken to procure satisfaction in Ireland, and the affidavits did not expressly negative the exist- ence of property there, the Court granted a rule for a scire facias against a director who had stated at a meeting of the company in London, that in conse- quence of the shareholders not paying the calls, the directors had no funds to meet the claims against them, one of the claims being the judgment obtained by the plaintiff. Ibid. The averments in the scire facias that the party is a shareholder, and as to the amount of his shares unpaid, are traversable. Ibid. A judgment creditor of a railway company within the operation of the Companies Clauses Conso. lidation Act, 1845, is entitled to issue execution against a shareholder, under section 36, although he has before issued an elegit against the lands of the company, but such lands are insufficient to satisfy the judgment debt; and the Court granted a man- damus to compel the production of the register of shareholders for his inspection. Regina v. the Der- byshire, Staffordshire and Worcestershire Junction Rail. Co., 23 Law J. Rep. (n.s.) Q.B. 333; 3 E. & B. 784. An affidavit in support of an application under the Companies Clauses Consolidation Act, 8 & 9 Vict. c. 16, for a scire facias for execution against a shareholder on a judgment against a railway com- pany, stated that the deponent "having been foiled in his attempts to obtain a sight of the register, and so obtain authentic and official information on the subject, deponent instituted inquiries aliunde as to who really were the shareholders of the company, and hath been credibly informed by parties officially connected with the said rail way, and which informa- tion deponent verily believes to be true, that the said J P F, who has been a director of the said ' company from the commencement, was a duly registered shareholder of seventy shares in the said company, and that 1,085^. was due thereon in respect of subscriptions not called up, the shares in the said company being 20/. shares, and only 4?. 10s. per share having been paid up or called : — Held, that this affidavit unanswered was good priTud facie evidence of the party being a shareholder of the company. Rastrick v. the Derbyshire, Staffordshire and Worcestershire Junction Rail. Co., 23 Law J. Rep. (n.s.) Exch. 2; 9 Exch. Rep. 149. Where a creditor had obtained a judgment against a company which had been ordered to be wound up 192 COMPANY— CONFLICT OF LAWS. under the 11 & 12 Vict. c. 45, having first proved liis debt before the Master, and execution had been jneffectually issued against the company, and there was no prospect of a payment being made to the creditors out of the funds in court under the Wind- ing-up Act within a reasonable period, the Court granted a scire facias for execution upon the judg- ment against a shareholder. Mackenzie v. tlie Sligo and Shannon Rail. Co., 24 Law J. Rep. (R.s.) Q.B. 17; 4E. &B. 119. Where execution by fi. fa. and elegit issued against the property of a railway company for 800/., and the sheriif returned to the elegit that lands of the company, amounting in annual value to lOg , had been taken under the elegit, and the plaintiff had not taken possession of the land, nor had he levied the sum of money due to him, and the land was not sufficient whereon to levy the principal money and interest mentioned in the writ, — Held, that the extent in question of the land was no answer to the scire facias for the whole amount issued under the 8 Vict. c. 16. s. 36. against a shareholder of a com- pany who had not fully paid up his shares. Addison v. Tate, 24 Law J. Kep. (k.s.) Exch. 249; 11 Exch. Rep. 250. The solicitors of a public company, being also shareholders in the company, sued the company for their bill of costs, and obtained judgment by default. They then issued a writ of scire facias against two of the shareholders only for the purpose of putting a stop to a suit against the directors, in which those shareholders were plaintiifs: — Held, that the Court would restrain proceedings upon the scire facias. Horn V. the Kilkenny and Great Southern and Western Rail. Co., 24 Law J. Rep. (n.s.) Chanc. 241; 1 Kay & J. 399. The original bill having been filed for the purpose of charging the directors with certain shares, and the proceedings complained of having been taken by the solicitors for the purpose of assisting the direc- tors and putting a stop to the suit : — Held, that this was proper matter to be introduced by amendment, and not inconsistent with the original purpose of the suit. Ibid. (B) Joint-Stock Companies. Scire fa/Aas against a member of a company completely registered under the Joint-Stock Compa- nies Act, 7 & 8 Vict. c. 110, to obtain satisfaction of a judgment and execution against the company, the plaintiff having failed to obtain satisfaction of the said judgment, by execution against the property and effects of the company. Plea, first, that due diligence had not been used to obtain satisfaction by execution against the effects of the company, con- cluding with a verification. Secondly, that no rule or order of the Court or a Judge had been obtained for leave to issue the scire facias. Replication to the first plea, that due diligence was used to obtain satisfaction by execution against the property of the company, concluding to the country : — Held, upon demurrer, that the 68th section of the 7 & 8 Vict. <.'. 110. was cumulative only, and did not preclude the plaintiff firom proceeding by scire facias, to obtain satisfaction of his judgment from the defendant, under the 66th section. Marson v. Lund, 20 Law J. Rep. (U.S.) Q.B. 190; 16 Q.B. Rep. 344. Held, also, as to the pleadings, first, that the second plea was bad ; secondly, that the replication was sufficient, and properly concluded to the country. Ibid. (C) Limited Liability Companies. [See Stat. 18 & 19 Vict. c. 133. s. 8.] COMPANIES CLAUSES ACT. The 12th section of the Common Law Procedure Act, 1854, authorizes the Court to appoint an um- pire in all cases of arbitration where the parties or two arbitrators are at liberty to appoint an umpire, and do not do so, although the submission to arbitration may have taken place before the act came into operation. In re Lord, and In re tlie Governor and Comipany of Copper Miners in Eng- land, 24 Law J. Rep. (n.s.) Chanc. 145; 1 Kay & J. 90. Where, by a special act, certain matters not con- nected with railways were referred to arbitration in the manner provided by the Companies Clauses Consolidation Act, 184S, it was held, that as the arbitration clauses of that act only applied to cases where a railway company was one party to the arbi- tration, an umpire might be appointed under the Common Law Procedure Act, 1854. Ibid, COMPENSATION. [See Lands Clauses Consolidation Act — Mas- ter and Servant — Negligence.] CONCEALING THE BIRTH OF DEAD CHILDREN. Placing the dead body of a child under the bolster of a bed with a view to its temporary concealment, although with the intention of removing it elsewhere when opportunity offers, is a disposing of the body within the meaning of the statute 9 Geo. 4. c. 31. s. 14. Regina v. Perry, 24 Law J. Rep. (n.s.) M.C. 137; 1 Dears. C.C.R. 47. If a woman be delivered of a child, which is dead, and a man take the body and secretly bury it, she is indictable for the concealment by secret burying, under the stat. 9 Geo. 4. c. 31. s. 14, and he for aiding and abetting her, under s. 31, if there was a common purpose in both in thus endeavouring to conceal the birth of the child; but the jury must be satisfied not only that she wished to conceal the birth, but was a party to the carrying that wish into effect by the secret burial by the hand of the man in pursuance of a common design between them. Re- gina V. Skelton, 3 Car. & K. 119. CONFLICT OF LAWS. A mortgagor resident in this country mortgaged, by deed executed in England, to mortgagees also resident here, real estate in Demerara, and before the mortgagees completed their title to the mort- gaged property according to the laws of Demerara, the mortgagor became bankrupt, and his assignees CONFLICT OF LAWS— CONSPIRACY. 193 in this country sold the property and received the proceeds. Whether the rights of the contracting parties have ceased to be governed by the law of Denierara, the lex lod rel sitce, and must be governed by the law of this country, the lex loei cmttract&s— qacere. Waterhouse v. Stansfield, 21 Law J. Itep. (N.a.) Chanc. 881; 9 Hare, 234. _ A contract of marriage made in London, in the Scotch form, will be construed in England according to the law of Scotland. The domicil of the parties must determine the remedies by which the contract must be carried into effect. Dwncan v. Cawium, 23 Law J. Rep. (n.s.) Chanc. 26S ; 18 Beav. 128. A domiciled Scotchman intermarried with an Englishwoman in London; a contract of marriage was entered into in the Scotch form; they went to reside in Scotland, but subsequently came to re- side permanently in England, where he engaged in trade, and became a bankrupt, having received a, great portion of the property of his wife from the trustee of her father's will. Upon a bill by his wife, asking that the trustee might make good the sums paid, — Held, that he was not liable to make good any money paid upon the joint receipt of the husband and wife; but that the assig- nees of the husband could give no valid discharge for the property of the wife, and that he must make good such sums of money as he had paid to them, and also a sura lost. That all unpaid property of the wife, including the sums to be made good, be- longed to her, subject to the life estate of the hus- band. That the life interest of the husband could not be impounded to secure the provision he had, by the marriage contract, agreed to make for his wife and children. That the property, so far as it was not affected by the marriage contract, was the property of the wife, and must be settled for the benefit of herself and her children. Ibid. British subjects may contract that the law of any foreign state shall regulate their rights ; and such contract, if not contrary to the policy of the law of England, will be carried into execution by the Courts of law here in accordance with the law of the state contracted for. A marriage valid by the law of England will be held valid in France to support a contract of marriage entered into in France, although it was alleged that the contract was invalid there as having been entered into in contemplation of the marriage being solemnized in France, which was never done. By the law of France, property not included in the marriage contract remains the separate property of the p'arty to whom it belonged, and although such contract of marriage might be invalid in France as to property there, it will, as to property in England, be carried into effect by the Courts here, in accordance with the law of France. If a wife might, by the law of France, make a valid will there, and dispose of her separate property not included in her marriage contract, she may, in Eng- land, make a will valid by the law of England and dispose of her property in England, and that, al- though the marriage contract might not be valid in France. The law of England will imply a power of disposition over property in England if such a power ' would have been given by the law of France. Two domiciled English subjects entered into a French contract of marriage, and stipulated that their pro- perty should be regulated by the law of France, Digest, 1850—1855. which recognized the wife's right of separate estate over property not brought into community, and gave her a power of making a will and disposing of it. The marriage was solemnized in the chapel of the British ambassador at Paris, but it was not cele- brated in accordance with the law of France. The husband and wife immediately separated, and she died in 1850 a domiciled English subject, leaving her husband surviving, having, by her will duly executed by the law of England, made a legal ap- pointment of her property in England, and appointed the plaintiff her executor, to whom limited admi- nistration was granted : — Held, that the marriage was valid by the law of England; that the contract of marriage, though in the French form, was valid, and that this Court would carry it out in accordance with the law of France; that as the law of France recognized the right of the wife to dispose of her separate property by will, this Court would imply not only an authority to make a will, but also a power of disposition over her property in England, and that the jus mariti of the husband was wholly taken away by the marriage contract. Este v. Smyth, 23 Law J. Eep. (n.s.) Chanc. 705; 18 Beav. 112. CONSIGNEE. A consignee of West India estates appointed by the Court was discharged at his own request, there being a large balance due to him : — Held, that he was entitled to be indemnified out of the slaves compensation money (which had been paid into court and accumulated) for his expenditure and costs in priority to a mortgagee, whose security was prior to the suit, but who was not made a party till after the discharge of such consignee, Morrison v. Morrison, 2 Sm. & G. 564. A consignee appointed by the Court, and expend- ing his money under its sanction, may reasonably look for reimbursement out of every fund arising from the estate under its controul. Ibid. A consignee of the same West India estates ap- pointed after the mortgagee had become a party to the suit, and the compensation money for the slaves had been paid into court, a large balance being found due to him, — Held, that while consignee he could not be paid out of the fund in court; but on his amended petition to be discharged and to have the corpus paid to him, the order was made. Ibid. A consignee of West India estates, appointed by ' the Court, has a right to be reimbursed his expendi- ture out of the rents of the English estates of the same owners, although the consignee is not the receiver of these estates. In re Tha/rp, 2 Sm. & G. 678. CONSPIRACY. (A) The Offence. (B) Indictment. (A) The Offence. A conspiracy to procure by false pretences, false representations, and other fraudulent means, a young girl to have illicit carnal connexion with a man, is a 20 194 CONSPIRACY— CONTRACT. misdemeanour at common law. Regina v. Mears, 20 Law J. Rep. (n.s.) M.C. 59; 2 Den. C.C.E. 79. An indictment alleged that S sold B a mare for 39/.; that while the price was unpaid B and C con- spired by false and fraudulent representations made to S, that the mare was unsound, and that B had sold her for 27/., to induce S to accept 27/. instead of the agreed-on price of 39/., and thereby to de- fraud S of 12/. ; Held, that the indictment was good, and that, being supported by proof of the facts alleged, it warranted a conviction. The Queen v. Carlisle, 23 Law J. Rep. (n.s.) M.C. 109; 1 Dears. C.C.R. 337. (B) Indictment. The 3 & 4 Will. 4. c. 63. s. 120. enacts, that all suits, indictments or informations exhibited for any oifence against that or any other act relating to the Customs in any of his Majesty's Courts of Record at AVestminster, shall be brought within three years after the date of the commission of the offence : — Held, that this was confined to indictments to be brought under sections 75. and 112. in the name of the Attorney General, in one of the courts of record at Westminster, and did not apply to an indictment preferred at the assizes for a conspiracy to defraud the Queen of certain duties, which was an offence at common law. Regina v. TJiompson, 20 Law J. Rep. (N.s.) M.C. 183; 16 Q.B. Rep. 832. An indictment charged A, B and C with conspiring together and " with divers other persons, to the jurors unknown." The evidence at the trial applied only to A, B and C. The jury found that A had con- spired with either B or C, but that they could not say with which. The Judge directed a verdict of guilty to be entered against A, and of not guilty in favour of B and C : — Held, {Brie, J. dissentiente) that on this finding A was entitled to be acquitted, as the words " persons unknown" meant persons other than A, B and C, and that there was no evidence adducedas to any other persons being concerned. Ibid. In an indictment for a conspiracy to violate an act of parliament charging the acts prohibited by the statute as the means by which the conspiracy is to be effected, it is not necessary to allege those acts as specifically as in a conviction under the statute. Seginay.Bowlands, 21 Law J. Rep. (n.s.) M.C. 81; 2 Den. C.C.R. 364. In an indictment for conspiracy to injure a trades- man in his trade, under the 6 Geo. 4. c. 129, it is sufficient to allege that the defendants conspired, &c. by "molesting,"*' using threats," " intimidating" and " intoxicating" workmen hired by the tradesman in order to force them to depart from their work ; and, also, that they conspired, &c. to "molest" and "ob- struct" the tradesman and his workmen, with the same object, and in order to force him to make an alteration in the mode of carrying on his trade, the words used being those employed in the statute, and it not being necessary to set out the means of mo- lestation, intimidation, &c. more specifically. Ibid. Counts framed upon the 4 Geo. 4. c. 34. charged that the defendants conspired, &c., by " molesling" and "obstructing" and by " using threats and inti- midation," to obstruct such workmen as might be willing to be hired by the tradesman to prevent them from hiring themselves to him : — Held, sufficient, ibid. Other counts charged the defendants with con- spiring to intimidate, prejudice, and oppress A B in his trade, and to prevent his workmen from con- tinuing to work for him ; and with conspiring by divers subtle means and devices and wicked acts and practices to injure and oppress A B in his trade, and to induce his workmen to leave their hiring before the period of their agreement was completed ; and with conspiring to intimidate, prejudice, and oppress A B in his trade, and to entice and seduce away his workmen from their employment, and thereby to injure and oppress the said A B in his trade: — Quwre — whether they were not too vague. Ibid. CONSUL. [Power to administer oaths and do notarial acts, see 18 & 19 Vict. c. 42.] CONTRACT. [See Action — Company — Damages — Evi- dence Highway — Indemnity — Landlord and Tenant — Pabtnebs — Principal and Agent — Sale Specific Perfobmance.] (A) What amounts to a Contract. (B) When valid ob illegal. (a) In general. (b) As being contrary to Statute or Public Policy, {c) In Restrai/nt of Trade or Residence. (C) Construction of Contracts. (a) In general. ( b) Joint or several. (c) As to the Description of Article con- tracted for. (d) As to particular Words. (1) " Say not less than." (2) "About." (c) When Performance dependent on certain Events. (f) Breach before Performance. (g) Conditiom precedent, (h) To procure Employment, {i) To execute Railway Works. (D) Rescission and Abandonment. (A) What amounts to a Contbact. The declaration stated that one J A was indebted to the plaintiffs, and that the defendant's agent, by a written instrument, addressed and promised the plaintiffs as follows : — " Mr. A (the defendant) offers to pay a composition of 7s. in the pound on your account against his nephew, J A, on your giving pro- per indemnification to both. In the event of your accepting the oifer, I will thank you to forward me full particulars of your account, in order that the same may be properly examined ;" that the plaintiffs accepted the oifer of the defendant, and forwarded the full particulars of their account to the agent ; and although the plaintiffs had always been ready and willing, and offered to give a proper indemni- fication to .1 A and the defendant, yet the defendant CONTRACT; (B) When valid or illegal. 195 did not pay the compoBition : — Held, on demurrer, that this was merely an incomplete agreement, and that the defendant was entitled to judgment. Cojse V. Albinson, 22 Law J. Rep. (n.s.) Exch. 37; 8 Exch. Rep. 185. Certain guardians of the poor issued an advertise- ment, stating that they would receive tenders for tlje supply of the workhouse with meat for three months from 30 to SO stone (setting out the description of meat) ; that sealed tenders were to be forwarded to the clerk, and that all contractors would have to sign a written contract after acceptance of tender. The defendant wrote to the plaintiffs as follows : " I propose to supply your house with meat according to advertisement for the ensuing three months at 6rf. per pound." The defendant's proposal was accepted, and he was informed that he was appointed butcher, upon which he immediately declined the appoint- ment : — Held, that the transaction amounted merely to a proposal for a contract, and that there was no binding contract until a written agreement had been signed. Governor, Guardiams, Sc, of the Poor of Kingston-upon-Hull v. PcicA, 24 Law J. Rep. (n.s.) Exch. 23; 10 Exch. Rep. 611. A. wrote to B on the ISth of July proposing a partnership, saying, "As to the time, I certainly should wish it by the end of August." To this B answered on the 16th, "I am ready to accede to your proposal. With regard to time, if you could possibly defer my coming until the second week in September, it would suit much better." On the 19th A again wrote, " The time is very important, and ought not to be later than August:" — Held, that those letters did not constitute an absolute agree- ment ; and the .Tudge of the county court having left it to the jury to determine whether B's letter of the 16th of July was a positive acceptance of A's pro- posal of the 1 5th, Held, a misdirection. Ckeveley v. Fuller, 13 Com. B. Rep. 122. A local act of 6 Geo. 4. c. clxxix. for the manage- ment of the poor of Brighton, by s. 204, empowered the directors and guardians, when and as they should find it necessary, to alter, enlarge, extend, and repair the existing poor-house, or to erect other houses or buildings for the better receiving, employing, and maintaining the poor : and s. 220 provided that all contracts or agreements made between the directors and guardians and any other person or persons re- lating to " any act, matter, or thing to be done in pursuance of that act," should be reduced into writing, and signed by the parties thereto. By the Poor Law Act of 7 & 8 Vict. c. 101, the commissioners are for the first time empowered to direct that schools shall be built in parochial districts : — Held, that a con- tract made by the directors and guardians, by order of the poor-law commissioners, in relation to the erection of an industrial school within the parish, was not a contract for " a thing to be done in pursuance of the local act," and therefore was not required by the 220th section of that act to be in writing. Arm- atrong v. Bowdidge, 16 Com. B. Rep. 358. R, after some negotiations, contracted with the assignees of Messrs. E, for the purchase of certain claims of the bankrupts against the estate of G F B. He represented that he acted on behalf of himself and M, who was clearly cognizant of the negotiations and contract. Several documents passed between the parties, and finally a draft of a deed was pre- pared, which recited that the contract was a joint purchase by R and M. This was submitted to M, who approved of it ; and at that time he was willing to adopt the contract, but subsequently, upon an alteration of circumstances, M objected to the con- tract, and refused to join in the purchase : — Held, that there was no evidence that M had entered into any agreement, or that R acted as his agent; and that the recital of an agreement in a document in- tended to be executed, would not bind a party who had done nothing to recognize it, though at one time it was apparent that he was willing to execute it, and the bill was dismissed against M, with costs; but as R admitted the plaintiffs' case, a decree was made against him, without costs. Foligno v. Mwrlm, 22 Law J. Rep. (n.s.) Chanc. 502. (B) When valid or illegal. [Contracts void for fraud and misrepresentation > see Bankrcpt — Baron and Feme — False Repre- sentation, And see Insolvent — Ship and Ship- pins — Weights and Measdres.] (o) In general. An agreement was made, in the following form, between the plaintiff Mary, when unmarried, and the defendant, being the parents of the child men- tioned therein : — " Agreement made this 14th day of March 1846, between J L (the defendant), of, &c., and M S (the plaintiff Mary), single woman, of, &c., respecting the maintenance of a certain illegitimate female child. The said J L agrees to pay the sum of i6l. to the said child, as follows : 12/. to be paid down, and the remaining ZZl. in four equal payments, in four years. The first of such payments, 8i. 5s., to be made on the 30th of De- cember 1846, and every succeeding 30th of Decem- ber, till the period of four years do expire. But if the said child should die before the said four years do expire as aforesaid, the payment to cease on such decease." Signed by both parties. The 12i. was paid down, and the agreement was placed in the possession of one of the attesting witnesses. On the 26th of November in the same year, M S, hearing that the defendant had obtained possession of the agreement, and believing that she had thereby lost her remedy upon it, went before a magistrate for a summons against the defendant, and on the 31st of December an affiliation order weis made, and 2s. Qd. a week ordered to be paid by the defen- dant, which was regularly done. On the 26th of March 1848 M S intermarried with the plaintiff W C, and an action of mdebitatus asmmpsU was subsequently brought. The first count was for necessaries supplied to the child by M S before her marriage, alleging a promise to her. The second count was for necessaries supplied by the plaintiffs, and on an account stated between them and the defendant. Plea, non assumpsit. At the trial, the jury found as a fact that M S did not intend to abandon the agreement when she went before the magistrate. A verdict was returned for the plaintiffs, with HI. 10s. damages on the first count, and 16/. 10s. on the second ; — Held, that either the agreement merely imported that M S was to support the child, in which case there was no consideration for the defendant's promise, as M S being the child's mother was bound by law to support it, or else the agree- 196 CONTRACT; (B) When valid on illegal. ment also imported that M S would abstain from obtaining an affiliation order, in which case the consideration had failed. Croviliurst v. Lamrack, 22 Law J. Rep. (n.s.) Exch. 57; 8 Exch. Rep. 208. To a declaration in covenant the defendant pleaded that, before the making of the covenant, it was unlawfully agreed between the plaintiff and the de- fendant that the defendant bhould sell and the plaintiff purchase certain lands for a certain sum of money, to the intent and in order and for the pur- pose, as the plaintiff at the time of making the agreement well knew, that the lands should be sold by lottery contrary to the statute ; that afterwards, ill pursuance of the said illegal agreement, the said binds were conveyed to the defendant, and a part of the purchase-money for the same being unpaid, the defendant to secure the payment thereof made the covenant declared on. A verdict being found for the defendant on the issue on this plea, the plaintiff obtained judgment non obstante veredicto : — Held, in error, reversing the judgment below (22 Law J. Rep. (U.S.) Q.B, 270; 2 E. & B. 118), that the plea was good, that after verdict it ought to be taken to mean that the covenant was given in pursuance of the illegal agreement, and, even if not so understood, that the covenant could not be enforced, since it was given as a security for the payment of money due under an illegal contract. Bridges v. Fisher, 23 Law J. Rep. (h.s.) Q.B. 276; 3 E. & B. 642. (6) As leing contrary to Statute or Public Policy. [See Company — Covenant.] An agreement, for a pecuniary consideration, for the resignation of a commission in the East India Company's service, is the sale of an office within the statute 49 Geo. 3. c. 126, and is therefore illegal^nd void. Graeme v. Wroughton, 24 Law J. Rep. (n.s.) Exch. 265; 10 Exch. Rep. 146. To an action on a bond conditioned for the pay- ment of 4,000 rupees, the defendant pleaded that he vas a lieutenant and the plaintiff was a captain in the 5th Native Cavalry (Madras), and that G was a major in the same regiment, and all were British subjects, and that it was corruptly agreed by and between the plaintiff and the defendant, and the siu'd G and divers other officers of the said regiment subordinate to the said G, that the plaintiff and defendant and the said other officers should subscribe and pay to, and that G should accept a sum of money to induce him to, and on condition that he should give up and relinquish his said office and employment and retire from the said regiment and create a vacancy of major therein, and so occasion a step for promotion in the regiment. The plea then alleged the subscription and payment by the other officers and by the plaintiff for himself and on behalf of the defendant, and by way of loan from the plaintiff to the defendant to G of the baid sum, and his resignation and consequent creation of a vacancy, which was filled up by the plaintiff, and that the bond was given as a security for the repayment of the said loan and contribution made by the plaintiff on the defendant's account, the plaintiff having notice of and being privy to the premises : — Held, that the plea constituted a good answer to the action. Ibid. SeiiMe that the contract was also illegal under the 24 Geo. 3. u. 25. Ibid. The question whether a contract is void as contrary to public policy is for the Court, when the circum- stances raising the question are conceded; and, semble, that the plaintiff in his declaration, or the defendant in his plea, may introduce averments of circumstances for the purpose of maintaining either side of that proposition. Tallis v. Tallis, 22 Law J. Rep. (N.S.) Q.B. IBS; 1 E. & B. 391. (c) In Restraint of Trade and Residence. [See Covenant.] An agreement between the plaintiffs and the defendant for the purchase, by the plaintiffs, of .the defendant's shop, premises, and stock of wines, and his good-will of the business of a wine and spirit merchant, then carried on at Carnarvon, stipulated that the defendant, in consideration of the premises and of the payments aforesaid, did thereby promise and agree with and to the plaintiffs, that he would not, at any time or times thereafter, by himself, his partner, or agent, or otherwise howsoever, either directly or inclirectly, set up, embark in, or carry on the business or trade of a wine and spirit merchant at Carnarvon aforesaid, or at any other town or place within the three counties of Carnarvon, Anglesey, and Merioneth. After the making of the agreement the defendant set up in business as a wine and spirit merchant at Chester, and supplied wine and spirits to persons resident in Carnarvon and other places within Carnarvon, Anglesey, and Merioneth, upon orders solicited within the said town and places per- sonally and by agents, but he had no place of residence or of business within the said town or places : Held, that it was not necessary to the carrying on of business within the meaning of the agreement that the defendant should have some place of business within Carnarvon or the other pro- hibited places, and that the defendant had been guilty of a breach of the agreement. Turner v. Evans, 22 Law J. Rep. (n.s.) Q.B. 412; 2 E. & B. 512. The defendant agreed to serve the plaintiff, a solicitor and estate agent, as his clerk at T, the plaintiff being at liberty to determine the agreement by a month's notice, and in case of such deteimina- tion the defendant agreed that he would not, unless with the consent of the plaintiffj for the space of twenty-one years from the expiration of such notice, and notwithstanding the decease of the plaintiff, reside in the parish of T, or within twenty-one miles thereof, or transact or carry on therein or within the distance aforesaid, any business of the nature or description of the business that .might be carried on under the agreement, under a penalty of 2,000?. To a declaration on this agreement, alleging by way of breach, that after notice the defendant resided in the parish of T, and also within twenty-one miles thereof, and had transacted and carried on in the said parish of T, and also within the distance of twenty-one miles thereof, business of the nature and description of the business to be carried on under the said agreement, the defendant, treating the de- claration as containing two breaches, pleaded to the first breach, that although he had since the expiration of the said notice resided in the said parish of T, and within twenty-one miles thereof, yet he had not so resided as aforesaid for the purpose or with the intention of carrying on business of the nature or CONTRACT; (C) Construction oe Contkacts. 197 description to be carried on under the said agreement : — Held, that the plea was bad. Dendy v. Hender- son, 24 Law J. Rep. (n.s.) Exch. 324; 11 Exch. Kep. 194. Qmere whether, if the true construction of the agreement were to restrain the defendant from re- siding at T, independently of carrying on the busi- ness, it would be void as being contrary to public policy. Ibid. A and B were respectively- carrying on the business of a general merchant in a country town. A entered into an agreement with B for the purchase of his business, and one of the terms was, ihat B should enter into a bond conditioned to pay 2,000Z. if he, B, should, after a certain date, be "concerned in any trading establishment" within a particular dis- trict. Upon a suit by A for specific performance of this agreement, it was held, that the restraint upon B's trading was not too general, as in construing such a condition a Court of law would take into consideration the circumstances at the time of the execution of the bond, and the nature of the business the goodwill of which was sold. Avery v. Langford, 23 Law J. Rep. (M.S.) Chanc. 837; Kay, 663. (C) Construction of Contkacts. (a) In general. [See Sale.] ILdts V. the London and Blackwall Rail. Co., 6 Law J. Dig. 179: reversed, 3 H.L. Cas. 470.] As a general rule, the lex loci contractus governs the construction of contracts. Gihhs v. Fremont, 22 Law J. Eep. (n.s.) Exch. 302; 9 Exch. Rep. 25. P C while in India made his will, leaving his daughter, who was born there, a lac of rupees. U|ion the completion of her education, P C, who had returned to England, sent her back to India, and on that occasion he wrote to a particular friend, to whose guardianship and charge he confided her, " In regard to her settlement in life I shall be naturally anxious." " You may assure the young gentleman that she may choose that, on his marriage with her, he shall have 2,000/. sterling; nor will that be all; she is and shall be noticed in my will, but to what furtJier amount I cannot say, owing to the present reduced, and reducing, state of interest, which puts it out of my power to determine at pre- sent what I may have to dispose of." H M, having made proposals of marriage, was informed of the letter written by P C, and also of the will he had made, and after some negotiations the marriage was solemnized in 1826, and in 1829 H M and his «ife returned to England. In the same year P C, who was a domiciled Scotchman, executed, in Edinburgh, another will, by which he gave all his real and personal property for the benefit of his wife and his two sons by her, and, in case of their dying without issue, he gave the whole to the issue of his daughter. P C died in 1831, without having made any provision for his daughter, leav- ing the will made by him in India in the state it was when he executed it; and upon a bill filed by his daughter, insisting that the testator had con- tracted to settle a lac of rupees upon her, and that the contract was contained in the letter written by him, — Held, that, in construing contracts, the Court must ascertain the real meaning of the words used; that when no definite or specific sum was mentioned or referred to, the Court cannot enforce any contract; that the testator had not afforded means of reference to any other document; that except from the answer of H M there was no evi- dence that he married on the faith and belief that a lac of rupees would be settled; and that it was not evidence to be acted upon in favour of the plaintifi' against the estate of the testator, as previous to marriage it had been pointed out to H M that the letter did not state any precise sum ; and that the testator had left himself unfettered by any contract : and the bill was dismissed, but without costs, Moorhouse v. Cohm, 21 Law J. Rep. (n.s.) Chanc. 177,782; 15Beav. 341. In March 1853, H, by parol, sold goods to the defendant, at an agreed price, and the defendant then took possession. In the following May, by articles of agreement, it was agreed between them as follows : " that H shall sell, and the defendant shall purchase (the same goods), and that the price to be paid for the same shall be the fair amount of the value thereof, such amount to be settled, in case the parties shall differ as to the same, by arbitration in manner hereinafter mentioned, and that the defen- dant shall pay to H the amount of such price within two calendar months after such price shall have been fixed as aforesaid." The defendant continued in possession of the goods, and never objected to the price originally fixed. H having become bankrujjt in August, his assignees, in November, sued the defendant for the amount, as for goods sold and delivered : — Held, that in the absence of evidence that the parties had diflTered since March as to the amount then fixed, it was not shewn that the event upon' which the arbitration clause was to apply had ever arisen, and that the fair value mentioned in the agreement must be taken to be the value previously ascertained and agreed to. Cannan v. Fowler, 23 Law J. Rep. (n.s.) C.P. 48; 14 Com. B. Rep. 181. It was agreed between M, the lessee of certain premises, and the plaintiff, that M should grant him a lease, which was to contain the usual covenants, and particularly those contained in the lease under which M held the premises, so that the same in no way restricted the trade of a retailer of beer. The original lease did contain a restriction against the use of the premises by a retailer of beer: — Held, that whether the words " so that the same'"' referred to the original or the proposed lease, the meaning was that M should grant a lease without the covenant in restraint of trade, and was not a warranty that the original lease contained no such covenant. Hayward V. Parleys, 24 Law j. Eep. (n.s.) C.P. 217; 16 Com. B. Rep. 297. The agreement was made and the plaintiff entered in March 18S3, and in August his attorney sent a draft lease containing a covenant in restraint of selling beer. M died in September, and the plain- tifl^'s attorney returned the diaft in November, objecting to the covenant. A correspondence sub- sequently took place, and early in March 18S4 the defendants, as M's executors, offered a lease pur- suant to the agreement, but it was not accepted : — Held, that a reasonable time had not elapsed before the testator's death for him to grant the lease, nor after it for the executors to do so. Ibid. 198 CONTRACT; (C) Consteuction or Contracts. By memorandum of agreement between the de- fendants (brewers) and one C (a publican), the defendants agreed to lend C l&Ol. on his promissory- note, payable on demand, with interest, C depositing a lease of certain premises as security for the repay- ment of the 1501. and interest, and the defendants agreeing not to call for repayment for two years, on condition that the interest, the rent of the premises, and C's account with the defendants for beer were duly paid; and in case of non-performance of any of the conditions, the defendants were to be at liberty to enforce payment of the note, and if not paid, with costs and interest, they might then sell the lease and deduct from the proceeds the ISOi. and interest, as also any money due to them from C for beer : — Held, that on tender by C or (he having become insolvent) by his assignee, of the amount of the note and interest, the latter became entitled to the possession of the lease; and that the agreement gave the defendants no right to detain the lease on accoimt of any money due to them from C for beer, the lease being deposited only as security for the 150/. and interest. Chilton v. Oarrington, 24 Law J. Hep. (h.s.) C.P. 10; 16 Com. B. Kep. 206. (6) Joint or several. The plaintiff, acting on behalf of the members of an orchestra, to which he himself belonged, signed a proposal, " on behalf of the members of the orches- tra," to continue their services, provided the defen- dant would guarantee certain salary then due to them. The defendant accepted this proposition, but failed to pay the salary due. The plaintiff alone brought an action, for the whole money due to him- self and the rest, and stated the contract to be with himself and the rest. The jury found that he acted on behalf of himself as well as the rest : — Held, that the contract was joint, and that he could not recover. Lucas V. Beale. 20 Law J. Eep. (N.s.) C.P. 134; 10 Com. B. Rep. 739. (e) As to the Description of Article contracted for. The plaintiff having agreed to sell to the defendant a quantity of oil, described as foreign refined rape oil, but warranted only equal to samples, and having delivered oil which was not foreign refined oil, but which corresponded with the samples, — Held, that the defendant was not bound to accept the same, as he was entitled to the delivery of oil answering the description of foreign refined rape oil, and that the statement in the contract as to samples related only to the quality of the oil. Nichol v. Godts, 23 Law J. Rep. (N.s.) Exch. 314; 10 Exch. Rep. 191. (d) As to particular- Words. (1) "Say not less than." An agreement, dated the 12th of December, be- tween the plaintiff and the defendant, who carried on the business of a puller of wool, stipulated that the defendant should sell to the plaintiff what he might pull up to the 6th of January, " say not less than 100 packs of wool:" — Held, (dissentiente CoUridge, J.) that in the absence of an averment that the word "say" had any particular meaning, the agreement imported that the defendant should poll and supply to the plaintiff 100 packs as a minimum during the spe- cified period, and that the plaintiff should take .iny further quantity which should be pulled by the defen- dant during the period. Leeming v. Snaiih, 20 Law J. Rep. (h.s.) Q.B. 164; 16 a.B. Rep. 275. (2) "Ahout" A contract for the sale of nitrate of soda was in these terms: — "Sold, for, &c., about 500 tons of nitrate of soda, &c., to be ready for delivery on, &c."; and it then proceeded to state — " It is understood that the above nitrate of soda is to form the full and complete cargo of the J P, 345 tons register, now on her pas- sage, &c., to proceed to, &c., and there load. In the event of the J P being unable to prosecute her voyage, then the sellers to deliver another cargo of about equal quantity," &c. The only ground on which the seller was to be excused was the loss of the J P, or other vessel substituted for her, on the homeward voyage. The J P could not carry 500 tons : — Held, that the contract was for about 500 tons at all events, and not for a less amouint, being the whole that the J P could carry. Bowme v. Seymour, 24 Law J. Rep. (U.S.) C.P. 202; 16 Com. B. Rep. 337. Qu(Bre — whether, under the above contract, the buyer would have been entitled to more than 500 tons if the J P could have carried more. Ibid. On the argument of demurrers, where the defendant demurred to the second count of the declaration, and the plaintiff demurred to a plea to the first count, — Held,^hat the plaintiff had the right to begin. Ibid. (e) When Perfm-ma/nce dependent on certain Events. The declaration stated ^that L, being possessed of land, agreed with M, an architect, that he should lay out the land for building purposes, and make sur- veys, &c. ; that he should make no charge for the above services, but in the event of the land being dis- posed of for building purposes, M should be appointed architect oh L's behalf; and the parties building should pay him a per-eentage on the outlay, provided they did not employ him as their own architect; but in the event of L, or his executors, wishing to dis- pense with M's services, that he or they should remu- nerate him for his services in making the preparations. L made the surveys, &c.*, the land was not disposed of for building purposes, and L's executors dispensed with M's services, and put it out of their power to dispose of the land for building purposes, and there- upon L claimed remuneration for the preparations : ^Held, that he was not entitled to recover, the dis- posing of the land for building purposes being the event in which he was to have any remuneration; that even if the declaration could be taken as charging the executors with wrongfully putting it out of their power to dispose of the land for building purposes, no contract could be implied from the agreement that L or they should not dispose of the land other- wise than for building, in which case M was not entitled to anything. Moffatt v. Laurie, 24 Law J. Rep. (H.S.) C.P. 56; 15 Com. B. Rep. 583. (/) Breach lefore Performance. Declaration, that in consideration that the plaintiflT would agree to enter the service of the defendant as a courier, on the 1st of June 1852, and to serve the defendant in that capacity, and travel with him as a courier, for three months certain, from the said 1st of June, for certain monthly wages, the detendant agreed to employ the plaintiff as courier on and from the said Ist of June for three months certain, to travel CONTRACT; (C) Cokstutjction of Contracts. 199 with him on the Continent, and to start with the plaintiff on such travels on the said day, and to pay the plaintiff duringsuch employment the said monthly wages. Averment of an agreement to the said terms on the part of the plaintiff, and of his readiness and willingness to enter upon the said employment and to perform the said agreement. Breach, that the de- fendant, before the said 1 st of June, wholly refused to employ the plaintiff in the capacity and for the purpose aforesaid, on or from the said Ist of June or any other time, and wholly discharged the plaintiff from his said agreement and from the performance of the same, and from being ready and willing to perform the same; and the defendant wholly broke and put an end to his promise and engagement;^ Held, in arrest of judgment, that, after the refusal by the defendant to employ, the plaintiff was entitled to bring an action immediately, and was not bound to wait until after the day agreed upon for the com- mencement of performance had arrived. Hochster V. De Latour, 22 Law J. Rep. (h.s.) Q.B. 455; 2 E. & B. 678. In assessing damages in such a case the jury are justified in looking at all that had happened or was likely to happen down to the day of trial, to increase or mitigate the plaintiff's loss. Ibid. (g) Condition, precedent. [See Mason v. Harvey, title InsukANCE.] A building contract between A and B contained a proviso that the payments thereby agreed to be made by B should only be due provided the certificate of the surveyor of B for the time being should first be obtained. A having sued in indebitatus assumpsit for the balance alleged to be due, — Held, that under the general issue, the absence of the certificate was a good answer to the action, and that the plaintiff was not at liberty to shew that it was withheld frau- dulently and in collusion with the defendant. Milner V. PieU, 20 Law J. Eep. (n.s.) Exch. 68; S Exch. Eep. 829. Qi) To procwre Erruployment. Declaration upon an agreement, which stipulated, amongst other things, that it had been mutually agreed between the plain tiff and the defendant; and, first, the plaintiff agreed that he would serve the de- fendant as a manufacturer and assistant for the term of seven years, at a salary of lOOi. per annum, &c.; secondly, the defendant agreed to pay the said yearly salary, and if he should, from any cause, give up his business as a manufacturer, or not require the plain- tiff's services, then that he would use his best en- deavours to procure for the plaintiff employment in some similar business, and for which he would receive a salary of not less than lOOi. per annum, or in case he should be unable to do so, the defendant would pay the yearly salary of 1 OOZ. during the residue of the term of seven years. Averment of performance on the part of the plaintiff. Breach, that the defen- dant did not continue the plaintiff in his employ until the expiration of the seven years, but refused to do so, and wrongfully discharged the plaintiff therefrom", without reasonable or probable cause. And, further, that although the defendant had not continued the plaintiff in his employ, but had discharged him as aforesaid, yet the defendant did not use his best or any endeavours to procure, nor did he procure the plaintiff employment in some similar business, for which he should receive a salary of 1 OOZ. a year, but had wholly failed to find the plaintiff such employ- ment. Plea, that at the time when the plaintiff was discharged, the defendant was, and thence hitherto had been, wholly unable to procure for the plaintiff any such employment as in the agreement mentioned : Held, upon demurrer, that the agreement did not leave it open to the defendant to pay the plaintiflF after his discharge lOOZ. a year without first using any endeavours to obtain a situation for the plaintiff; but that the undertaking by the defendant to use his best endeavours to procure employment for the plaintiff in some similar business was a primary part of the agreement, which the defendant was bound to fulfil, and therefore that the second part of the breach was good. Bust v. Nottidge, 22 Law J. Rep, (h.s.) Q.B. 73; I E. & B. 99. Held, also, that it was not necessary to aver a request by the plaintiff that the defendant would use his best endeavours. That the allegation of perform- ance was sufficient, without any averment of readiness and willingness. And that the mode in which the breach was alleged rendered it unnecessary to aver that a reasonable time had elapsed. Ibid. Held, further, that the plea raised an immaterial issue; and was bad on general demurrer. Ibid. (j) To execute Railway WorTcs. [See CoMPAHT.] A railway company agreed with contractors that the latter should work the hue, keep the engines and rolling plant in repair, and do certain other acts for seven years, at stipulated amounts of remuneration; if the contractors did not repair, within forty-eight hours after notice, the company might by another notice determine the contract, and resume possession of the plant, sheds, buildings, &c. ; and it was agreed that the contractors should make good all damages done by collisions, &c., but they were not to be answerable for loss in respect of death of, or injury to, passengers, &c. by accident, unless arising from their neglect, and then only for 1 OOZ. in respect of all deaths, injuries, &c. caused by each accident. • The company gave a notice to repair, and the repairs could not be completed within the forty-eight hours. The contractors filed a bill, praying a declaration that the true construction of the agreement was that only such repairs were to be done within forty-eight hours as could reasonably be completed in that time, and for an injunction against giving the second notice to determine the contract. One of the Vice Chancellors refused a motion for the injunction, and the contractors appealed : — Held, that, although not in form, the suit was in effect for specific perform- ance, and must be so treated; and, assuming the plaintiffs' case to be true, as it did not fall within any of the classes in which the interference of the Court had been accustomed to be exercised, there being no mutuality, for if the contractors failed to perform their duty the Court could not compel them, and as for any breach of the contract by the company the contractors had a right to sue at law, if the agree- ment were legal, the motion must be refused. Johnson v. the Shrewsbury and Birmingham, Rail. Co., 22 Law J, Rep. (n.s.) Chanc. 291; 3 De Gcx, M. & G. 914. 200 CONTRACT— CONVENTIONS BETWEEN NATIONS. Semile — that as by the working of a line by other p:irtieB than a company itself, the public loses the benefit of the guarantie thereby afforded for care and attention, such an agreement is illegal, as con- trary to public policy. Ibid. A contract between a railway company and a building contractor stipulated that payments should from time to time, during the progress of the works, be made by the company to the contractor, such payments to be made on certificates granted by the " principal engineer of the company, or his assistant resident engineer.*' In case of dispute between the contractor and the assistant resident engineer the de- cision of *' the principal engineer of the company*' was to be final; but at the completion of the works, if the contractor and the principal engineer differed, the differences between them were to be settled by arbitration. After differences had so arisen between the contractor and the company, it was discovered by the former that the principal engineer was a shareholder in the company. On a bill to have accounts taken, one of the grounds for which was this tact, then first discovered, — Held, that (no fraudulent concealment being alleged) it formed no ground for relief; for that, by the contract, the con- tractor had bound himself to submit to the judgment of a particular individual, whose position as principal engineer made him interested for the company. The case of Dimes v. fJie Grand Junction Canal Co. (3 H.L. Cas. 759) held not to apply. Ranger v. the Great Western Rail. Co., 5 H.L. Gas. 72. A contractor undertook to do certain works within a given term, or to pay certain fixed sums; whether these were penalties or unliquidated damages was not necessarily the subject of a bill in equity, but might properly have been decided in an action at law. The fact that a bond with a penalty had been given to secure the payment of them was itself strong evidence to shew that they were liquidated damages. Ibid. A contractor agreed with an incorporated company to do certain works, the contract being under seal. In this contract there was a stipulation, that if the company should think proper at any time to make any addition to the original works, the company should be at liberty to do so on giving him written instructions for that purpose, signed by the principal or assistant engineer. A verbal arrangement was afterwards made by the principal engineer for the execution of certain extension works, allowing for a variance in the prices, but stipulating that with the exception of that variance, all the provisions of that contract should be considered as applicable to the extension work. This work was executed by the contractor under this arrangement : — Held, that he could not afterwards reject the terms of the contract, and claim remiuieration for the work as upon a quantum meruit, nor could be ask in equity for accounts to be taken independently of the contract. Ibid. In a contract with a railway company for the execution of certain works, there was a clause empowering the company, after notice, to take pos- session of the plant and to finish the work; the company acted on this clause : — Held, that this did not furnish ground for a bill in equity as putting an end to the contract, though it might be the subject of an action for damages. Ibid. (D) Rescission and Abandonment. The declaration stated that the plaintiff' bought of the defendant divers lots of timber trees, to be felled and removed under certain conditions; and that the defendant would not permit the plaintiff' to fell or remove a certain remainder of the lots pursuant to the sale and conditions. The defendant pleaded, first, that before the breach, the plaintiff' felled and carried away and converted divers other trees of the defendant in substitution of the remainder mentioned in the declaration; secondly, that before breach the plaintiff fraudulently felled and removed other trees of the defendant not comprised in the lots sold, and to which theplaintiflFhad no right, and which exceeded in number and value the remainder mentioned in the declaration; that the plaintiff' fraudulently pretended that the trees which he so took were the trees which he had purchased; that they were taken in fraudu- lent substitution of those named in the declaration, and that the plaintiff converted them to his own use: Held, that these pleas were bad; that they shewed no rescission of the contract stated in the declaration, and that the plaintiff' was not estopped by his own fraud and trespass from bringing hjs action on the contract. Lewis v. Clifton, 23 Law J. Hep. (N.s.) C.P. 68; 14 Com. B. Rep. 24S. B agreed to sell her estate and raise 1,000/. for A"s use, and pay off two mortgages on his estate; in consideration of which, A agreed to pay B interest for life, and to settle his own estate on his wife (B's daughter) and their children. The l,000i. was raised on a mortgage of B's estate, and the joint ami several covenant of A and B. Seventeen years elapsed without any further steps being taken to carry the agreement into eff'ect, and A died : — Held, that the agreement must be considered abandoned, and that it could not be enforced. Guhitt v. Blake, 19 Beav. 4S4. CONTRACTOR. [See Master and Servant.] CONTRIBUTORY. [See Company.] CONVENTIONS BETWEEN NATIONS. [See Marshal v. Nichols, title Action, (A) (A).] A, a British subject, claimed to be entitled to com- pensation for certain losses suffered by him through confiscation of his property in the first French Revo- lution. The governments of England and France entered into conventions respecting compensation to be afforded to British subjects. The English govern- ment received all the money agreed upon between the two governments as the amount of compensation, and undertook to satisfy all the claimants. An act of parliament was passed declaring how claims were to be preferred and liquidated. A presented his claim to commissioners appointed under the act, and adopt- ed the modes of proceeding provided by it; his claim was rejected. After paj ment of the claims which CONVENTIONS BETWEEN NATIONS— CONVERSION. 201 were established to the satisfaction of the Comtnis- sioners, a surplus remained, which, in accordance with one of the provisions of the act, was paid over to the Lords of the Treasury. A proceeded to make his claim afresh under a petition of right : — Held, that he had no remedy except under the provisions of the statute. The Baron De Bode v. Begina, 3 H.L. Cas. 449. CONVERSION. [See Teover.] (A) What amocnts to a Conversion. (B) Extent of its Opekation. (C) Monet treated as Real Estate. (a) Consols. (6) Trust Monies. (D) Eleoiion, What amounts to. (A) What amounts to a Conversion. Real estate, settled on marriage upon trusts for sale, on request of the husband and wife, or the sur- vivor, was taken by the corporation of London under compulsory powers in the London Bridge Acts, with- out any conveyance by the trustees, and the value assessed by a jury paid into court, and, on petition of the trustees, invested in consols, upon the trusts of the settlement; — Held, not to amount to a conver- sion of the real estate into personalty. In re Taylor^s Settlement, 22 Law J. Rep. (n.s.) Chanc. 142; 9 Hare, S96. A B, having certain property within the limits of deviation allowed to a railway company for the con- struction of their line, entered into an agreement with the company, that in case they should construct their intended railway under the authority of the act and within the limits of deviation) they should pay to A B for such of his lands as they should require, at the rate of SOOZ. per acre. After the death of A B, the company took five acres of the land in question : — Held, that the contract did not operate as a con- version of the purchase-money into personal estate. In re Walker's Estate, 22 Law J. Rep. (n.s ) Chanc. 888; 1 Drew. SOS. After the testator, whowas a shopkeeper, had made a will bequeathing his leasehold house and shop and the stock in trade therein to his wife (subject to cer- tain trusts which failed), and giving his residuary estate in another manner, he became insane. No commission of lunacy was taken out, but his wife not being disposed or competent to carry on the trade joined with the persons whom he had named execu- tors, and also with the residuary legatees in an agree- ment for the sale of the leasehold premises and stock in trade therein for a gross sum to be paid by instal- ments. After this agreement was made and posses- sion of the property delivered to the purchaser the testator died. The Court in an administration suit approved of the agreement as beneficial to the estate, and directed it to be carried into effect ; — Held, that, notwithstanding the agreement for sale and the transfer of the possession of the property specifically bequeathed, none of the parties having any lawful authority to effect such a sale, both the leasehold estate and the stock in trade must be taken as un- DiGEST, 1850-1855. converted at the death of the testator, and passed to the specific legatee. Taylor v. Taylor, 10 Hare, 475. (B) Extent oe its Operation. Where a testator directs his real estate to be sold, and the proceeds to go as his personal estate, the conversion will be absolute for all the purposes of the will, but the direction will not operate so as to change the character of any share of the proceeds undis- posed of by the will. PhilUps v. Phillips, 1 IVIyl. & K. 649; s. c. 1 Law J. Rep. (n.s.) Clianc. 214, overruled. Taylor v. Taylor, 22 Law J. Rep. (n.s.) Chanc. 742; 3 De Gex, M. & G. 190. (C) Money treated as Reai, Estate. (a) Consols. Lands, settled on A for life, with remainders over, with an ultimate remainder in fee to A, were taken under the authority of an act of parliament which contained the usual disability clauses. The purchase- money was paid into court, and invested in consols, and the dividends were ordered to be paid to A for life. A died intestate. At the time of A's death, the other remainders had failed, and A would have died absolutely entitled to the land in fee, had it not been taken : — Held, that the consols were to be treated as real, and not as personal, estate, of A. In re Homer's Trusts, 22 Law J. Rep. (N.s.) Chanc. 369; 5 DeGex&Sm. 483. Land settled on A for life, with remiiinder to her children, with remainder to B, in default of children, in fee, was taken under the authority of an act of parliament, which contained the usual disability clauses. The money was paid into court, and in- vested in consols, and the dividends were ordered to be paid to A for life. In 1844 B died, and in 1849 A died without children. B had done no act in his lifetime shewing any intention to treat the consols as personal estate ; — Held, that the consols were to be treated as real, and not personal, estate of B. In re Stewart's Trusts, 22 Law J. Rep. (n.s.) Chanc. 369; 1 Sm. &. G. 32. Whether B could, by any act during the life of A, have elected to treat the consols as personal, and not real, estate — quwre. Ibid. (5) Trust Monies. In 1789 certain trustees had in their hands the sum of 1,800Z. belonging to D, then the wife of C. By a deed dated in 1789, in consideration of this sum of 1,800Z. paid by the trustees, certain real estate was conveyed to them, upon trust for D, for life, with remainder to her children. There were no words of inheritance used in the gift to the chil- dren, and there was no other disposition of the pro- perty. In 1801 the real estate was sold, and the purchase-money was invested in consols in the names of the trustees. In 1835 C died. D, by her will, made a general bequest of her personal estate, but there were no words in it affecting real estate. In 1845 D died, leaving E, a grandson, her heir-at-law. There were several children of the marriage, of whom only two survived D : — Held, that the fund in the hands of the trustees was impressed with the character of real estate, and (subject to life interests in a part of it of the two surviving children) belonged to E as the heir-at-law of D. Gillies v. Longlands, 2D 202 CONVERSION— COPYHOLD. 20 Laiv J. Kep. (n.s.) Chanc. 441 ; 4 De Gex & Sm. 372. A reversion of real estate, which, subject to an old life estate, was vested in trustees, was sold. The trustees of the settlement had power of sale, with a direction to lay out the produce in land to be settled to the same uses. Upon the sale the trustees, in- stead of paying the value of the old life estate to the tenant for life, invested the whole in their names, and paid that person the dividends for her life. The old tenant for life, the tenant for life under the settlement, and the party ultimately entitled to the fee simple imder that instrument, concurred in the sale and in this dealing with the purchase-money. Upon the death of the old tenant for life, questions were raised as to whether the money representing the sold estate was realty, or whether the acts of the party ultimately entitled to the fee simple did not amount to an election on his part to take the fund as money; and one of the Vice Chancellors decided in favour of the latter view; but, upon appeal, Held, that the money represented, and must be treated as, real estate. In re Pedder's Settlement, 24 Law J. Rep. (n.s.) Chanc. 313 ; 5 De Gex, M. & G. 890. (D) Election, What amounts to. Under a marriage settlement the trustees were directed to invest a sum of money in the purchase of real estate to be conveyed to the use of Lord Har- court for life, with remainder, subject to certain terms bf years for raising different sums of money, to the use of the right heirs of Lord Harcourt for ever. The money remained uninvested in lands for upwards of fifty years, and was dealt with by Lord Harcourt in the same manner as the rest of his per- sonal property : — Held, that it was not necessary for a party to express a strict intention to convert, and that the circumstances of this case were sufficiently strong to shew that Lord Harcourt had elected to take this trust money as personal property. Har- court V. Seymcmr. Seymour v. Lord Vernon, 20 Law J. Rep. (n.s.) Chanc. 606 ; 2 Sim. N.S. 12. Where real estate is bequeathed in the character of personalty, and is enjoyed unconverted by the legatee, slight circumstances are sufficient to raise a presumption that he has elected to retain it as realty. In the absence of any other circumstances the fact that a person has for a great length of time pre- served the property in its actual state will be suffi- cient to induce the Coiu:t to come to this conclusion. A B being entitled to an undivided share in a real estate impressed with the character of personalty, rt;tained possession for between two and three years, and died without having said or done anything to indicate an intention to reconvert : — Held, that at his death it was personalty. Bixrm v. Gay fere, 1 7 Beav. 433. COPYHOLD. [As to enfranchising copyhold lands, see stats. 14 felSVict. c. 57; IS &'l6Vict. c. 51; 16 & 17 Vict. c. 57; and see 16 & 17 Vict. c. 124, con- tinuing the copyhold commissions.] (A) Custom. (ct) Free Bench. (6) Heriot Custom,. (B) SORRENDEn AND ADMITTANCE. ( a ) Sufficiency and Legality of the Surrender, (h) Trustees. (c) By Way of Recovery. (d) Mcmdamus to admit. ( e ) Devise by unadmitted Surrenderee. (C) Fees and Fines. (D) Forfeiture. (E) Enfranchisement — Costs of Petition FOB Investment. CONVICTIOISr. [See JrbTicE.oF the Peate Sessions.] (A) Custom. (a) Free Bench. The custom of the manor of D was, that the wife of a copyholder was entitled to free bench of all the copyhold lands of which the husband was at any time during the marriage seised for an estate of in- heritance. A was married in 1843, and purchased a copyhold estate, held of this manor, in February 1851. The terms of the surrender were to such uses as A by surrender or by his will should appoint, and in default of appointment, to A and his heirs; but A was admitted, not according to those terms of the surrender, but simply to hold to him and his heirs. A died in September 1851, having by will devised this estate to trustees on certain trusts : — Held, that A's widow was entitled to free bench out of the copyhold estate. Powdrell v. Jones, 24 Law J. Rep. (n.s.) Chanc. 123; 2 Sm. & G. 407. Copyholds are not affected by the Dower Act (3 & 4 Will. 4. c. 105). Ibid. By the custom of a manor, the widow of a tenant was entitled to free bench in one moiety of the copy- hold land of which her husband died seised during the spousals. S B was admitted tenant, and sold and surrendered to G S, who married after the 1st of January 1834, when the act (3 & 4 Will. 4. c. 105.) came into operation. G S died intestate, without having been admitted. The heir of G S was not admitted. The widow claimed free bench, and the Master of the Rolls decided that the heir of G S, until admittance, was a trustee of half the rents foi her, for that the seisin of the surrenderee, G S, would take effect from the date of the surrender if the heir were admitted, so as to entitle the widow to fi-ee bench ; but, upon appeal by the heir of G S, Held, that the widow had no title to free bench, and that she had no equity to compel the heir of G S to be admitted. Smith v. Adams, 24 Law J. Rep. (n.s.) Chanc. 258; 5 De Gex, M. & G. 712; 23 Law J. Rep, (n,s,) Chanc. 525; 18 Beav. 499. The Dower Act does not extend to free bench. Ibid. (h) Hcrinl Custom. The plaintiffs, who were lords of a manor, alleged by their bill that tliirty-eight ostiites held by the COPYHOLD; (B) Suerenhee AND Admittance. 203 defendant within the manor, had been subject, from time immemorial, to the payment of certain sums in lieu of heriots and reliefs; that by reason of the confusion of boundaries, the plaintiffs could not ascertain in respect of what particular estates the payments were respectively due, and were therefore unable to recover the amount by distress. The bill prayed that the plaintifts might be declared entitled to the several sums claimed, and that the precise boundaries of the estates might be ascertained. The biU alleged the heriots and reliefs to be payable by custom, but there was no allegation of a custom of distress. A demurrer was allowed, without costs, and leave given to amend. The Mayor, Aldermen, amd Bwrgesses of Basingstoke v. Lord Bolton, 22 Law J. Eep. (n.s.) Chanc. 305; 1 Drew. 270. If this had been a bill proving a long usage of rent only, but that by reason of accident or lapse of time the boundaries had become confused, and there was difficulty in the way of obtaining a legal remedy, the Court would have given relief. Ibid. Bill by lord of a manor against the tenant, alleg- ing immemorial payments as rent, or in the nature of rent, on the death of each tenant by his successors in respect of thirty-eight different estates. The payments were in lieu of heriots and reliefs. It appeared by the evidence that the heriots were more properly heriot custom than heriot service, and that the relief was by custom and not by common right or by reservation. Some of them had been paid by the executors of the deceased. It was not shewn that the tenant was in possession of all the lands alleged to be liable, and only the aggregate amount of rent was known, not the proportion due to each estate : — Held, that, under these circumstances, the lord had no equity against the executors of the deceased tenant, although it appeared that, in con- sequence of the description and identity of the lands being lost, he could not enforce any claim at law. The Mayor and Corporation of Badngatoke v. Lord Boltm, 3 Drew. SO. (B) SuEaENDER AND ADMITTANCE. (a) Sufficiency amd Legality of the Swrrender. A surrender by a copyhold tenant to such uses as A B shall appoint, and, in default of and until appointment, to A B, his heirs and assigns for ever, is not such a surrender as, in the absence of any special custom, the lord can be compelled to accept. Flack V. the Master, Fellows, and Scholars of Downing College, 22 Law J. Rep. (k.S.) C.P. 229. Mandamus to receive and enrol a surrender of certain copyholds. It appeared from the writ that a testator, by his will, devised certain copyhold estates to his son G R and others, his executors, upon trust to sell and convey the same by bargain and sale to the purchaser. After the testator's death G R was, according to the custom of the manor, admitted to the said estates, to hold the same for the intents and purposes and subject to the powers declared and contained by and in the will, and on his admittance paid a full fine to the lord of the manor. The executors subsequently, in accordance with the power contained in the will, sold the said estates to G R and executed a convey- ance of bargain and sale to him in fee, which was aftenvards duly enrolled according to the custom of the manor. G R was afterwards desirous of surren- dering the same out of court according to the custom of the manor, and of having such surrender enrolled, but the steward of the manor refused to receive or to enrol such surrender. Return stating the custom of the manor, from which it appeared that where a will contained a power of sale of copyhold estates ij was customary, in order to prevent a seizure into the lord's hands, for the customary heir or some other person to be admitted as tenant to the lord, to hold the said estates for the intents and purposes, and subject to the powers declared and contained in the will, and therefore to pay a full fine; and that, afterwards, upon the execution of the power by bargain and sale, or otherwise, according to the custom and due enrolment of such bargain and sale, or other customary conveyance, the pur- chaser became fully entitled to be admitted tenant. The return then alleged that G R had not, since the execution of the power in the will, claimed to be admitted tenant, nor paid or offered to pay a fine in respect of the estate conveyed under the said power and the said bargain and sale: — Held, upon demurrer, that as by the custom of the manor there had been only an admittance of G R as donee of the power in the will quoiisgue, the effect of such admittance ceased upon the exercise of the power, and that until G R afterwards obtained a fresh admittance, as bargainee under the execution of the power, he could not compel the lord to receive and enrol a surrender by him of the estate. Begina v. Corhett, 22 Law J. Rep. (n.s.) Q.B. 335; 1 E. & B. 836. A surrender of copyhold lands of a married woman (who was examined thereupon as to her consent) was taken out of court by a deputy steward, who was at the time an infant of the age of twenty years and upwards : — Held, affirming the decision of the Court below, that the surrender was not invalid by reason oftheinfancy of the deputy steward. Bdleston v. Collins, 22 Law J. Rep. (u.s.) Chanc. 480; 3 DeGex, M. & G. 1; 10 Hare, 99. (i) Trustees. A testator devised copyholds to such uses as his two trustees, or the survivor of them, or the execu- tors or administrators of such survivor, within twenty- one years after the death of such survivor should, by deed, appoint; and subject thereto to the use of his two trustees, their heirs and assigns for ever; and he directed them to sell the same, and gave them power to give receipts for the purchase-money ; — Held, that a purchaser who had agreed to buy was bound to complete on having a proper deed of appointment from the trustees without the trustees being first admitted. Glass v. Richardson, 22 Law J. Rep. (n.s.) Chanc. 105; 2 De Gex, M. & G. 658; 9 Hare, 698. Where copyholds devised to an infant for life, remainder to his first and other sons in tail, were decreed to be sold to pay the debts of the testator, and an order was made in the cause, and pursuant to the 1 Will. 4. u. 47, ^hat the guardian of the infant should surrender them to the purchaser : Held, that the purchaser was entitled to require that an order should be made discharging the contingent rights of the unborn issue of the infant under sec- tion 20. of the Trustee Act, 1 850. Wood v. Beetle- stone, 1 Kay & J. 213. ■ 204 COPYHOLD; (B) Subbender and Admittance. An order under the Trustee Act, 1850, may be made hi a cause without petition. Ibid, (c) By Way of Recovery. J and S, two married women, being joint tenants in tail in remainder, after the death of the tenant in free bench, of certain descendible copyhold lands, J. and her husband, in 1831, without the concurrence of the tenant for life, surrendered their estate in the premises to such uses as the husband should appoint by will. J died, leaving her husband and S surviving her. Tlie husband died, having by his will appointed the surrendered share to his executors. Upon bill by S and her husband, claiming the entirety of the premises by right of survivorship : — Held, upon appeal, that by analogy to the rule in the case of freehold estates, the surrender did not operate to bar the remainders for want of the concurrence of the tenant for life. Edwards v. Champion, 23 Law J. Rep. (N.s.) Chanc. 123; 3 De Gex, M. & G. 202. A surrender by one joint tenant to the uses of a will of a third party who survived the joint tenant, will not operate as a severance of the joint tenancy — semble. Ibid. (d) Mandamus to admit. [See post, (C) Fees and Fines.] The Court will grant a mandamus to compel the lord of a manor to admit a person who claims as heir of a deceased copyholder, if he has made out a primd facie case of title by descent according to the custom of the manor; even though the lord suggests that the tenement has escheated to himself for want of an heir. Set/ina v. Bendy, 22 Law J. Eep. (n.s.) Q.B. 39. Mandamus to ihe lord and steward of the manor of C, to admit E H P, upon payment of the usual fines and fees, to certain copyhold estates which were alleged in the writ to have descended to the said E H P, as the heiress-at-law of S T, deceased, who was her maternal uncle and the person last seised. The return alleged that the said copyhold estates did not descend to the said E H P, as the heiress of S T, and that the said E H P was a stranger in blood to the said S T, and not entitled to the said estates, whereof the said S T died so seised. Pleas, first, that the said estates did descend to the said E H P, as the heiress-at law of the said S T; secondly, that the said E H P was not a stranger in blood to the said S T as alleged; thirdly, that E H P was, on the death of S T, entitled to the said estates whereof S T died so seised: Held, upon demurrer to the second plea, that it was to be considered as a distinct and single plea, and that it traversed an immaterial allegation in the return, and was, therefore, bad. And, per Erie, J., that one plea, traversing the whole of the allega- tion in the return, would have been good. Per Crompton, J., that the rule of pleading, which ad- mitted of the whole of an allegation being put in issue though too much had been alleged, did not apply. Jieyina v. Dendy, 22 Law J. Rep. (n.s.) Q.B. 247; 1 E. & B. 829. (e) Devise by mmdinitted Surrenderee. The surrenderee of a copyhold, who has not been admitted, cannot by devise give a legal title to his devisee; and tlie devisee does not gain such title by admittance; and the case is the same whether the burrender was for value or voluntary. Matthew v. Osborne, 22 Law J. Rep. (n.s.) C.P. 241; 13 Com. B. Rep. 919. (C) Fees and Fines. Where a copyhold estate is devised to several as joint tenants, the lord is bound to admit any one of thera to the entirety, and cannot refuse to do so on the ground that the amount of fine claimed by him is not paid. Regina v. the Lord of the Manor of Wanstead, 23 Law J. Rep. (n.s.) Q.B. 67. By the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 18. s. 95, every conveyance to the promoters of an undertaking of copyhold land is to be enrolled on the rolls of the manor, on payment to the steward of such fee as he would have been entitled to on the surrenderofthesame to a purchaser, and on enrolment the conveyance shall have thesameefFectasifthelands had been of freehold tenure, but until enfranchise- ment the same fines, trusts, &c, are to be paid to the lord as before the conveyance. The 96tli^ section provides that the promoters shall procure the lands to be enfranchised on application to the lord, on pay- ment of compensation ; and in estimating such com- pensation, the loss in respect of fines, services, &c., or any other matters which would be lost by the vesting of the lands in the promoters, shall be allowed for: — Held, on tlie conveyance of a copyhold to a railway company, that the lord is not entitled to a fine on the execution of the conveyance by the copyholder or its enrolment under the 95th section, or as a part of the compensation for loss by the vesting of the land under the 96th section. The Ecclesiastical Commissioners v. the London and North- Western Rail. Co., 23 Law J. Rep. (h.s.) C.P. 177; 14 Com. B. Rep. 743. Tenant in fee of copyhold hereditaments devised them to E, M, and W on certain trusts. E demanded admittance: the steward refused admittance except on payment of a treble fine. Mandamus granted to admit, the right to the fine accruing only by reason of the admittance. Regina v. Wellesley, 2 E. & B. 924. A, by will, devised a copyhold tenement to B, C, and D, upon certain trusts, and appointed the trus- tees executors, who all proved the will, and acted thereunder. C and D refused to be admitted tenants of the copyhold, and by a deed made between them and B, reciting that C and D were desirous of releasing their estate and interest in the copyhold to B, to the intent that B alone might be admitted tenant thereof, to hold the same upon the trusts of the will, C and D "granted, released, and confirmed" the said copy- hold tenement to B, to the intent that she might be solely seised thereof B thereupon claimed to be admitted to the entirety of the copyhold, and to pay only a single fine. The lord claimed a treble fine : — Held, that the deed should be construed so as to carry into effect the intention of the parties, as a disclaimer by C and D of their right to be admitted; and that their having acted in tlie trusts of tlie will would not prevent its having this operation ; and that, consequently, A became the sole tenant of the copy- hold, and the lord was entitled only to a single fine. Wellcskij V. Withers, 21 Law J. Rep. (n.s.) Q.B. 134; 4 k &B. 750. (D) Forfeitdbe. An act of parliament incorporated certain persons COPYHOLD— COPYRIGHT. 205 as a company for the purpose of making a canal, and gave them powers to purchase and hold lands for the purposes of the act ; it authorized persons to "contract for, sell and convey their lands," gave a form of conveyance "of all the estate, right, title and interest" of the person conveying, and enacted that all such contracts, agreements, sales, conveyances and assurances should be valid to all intents, &c. S was a tenant of copyhold land, a portion of which was wanted for the purposes of the canal; he sold it to the company, and executed a conveyance according to the form given by the act. The land was then applied to the purposes of the canal. On the death of S the lord made a pro- clamation for the heir of S to come in and be ad- mitted as a tenant on the rolls of the manor. No one appeared to claim admittance, and the lord seized the land qiumsqwe. He afterwards brought ejectment against the canal proprietors, and obtained jidgment against them on the ground that the con- veyance under the Canal Act iad only vested in them an equitable estate in the copyhold land. He then interfered to stop the course of the navigation. The canal proprietors filed a bill against him, pray- ing that the customary heir of S, or such other person as the plaintiffs might appoint, might be admitted to the copyhold premises, the plaintiffs undertaking to pay thefineand fees upon such admission; andfurther, praying for a perpetual injunction and general relief. The Vice Chancellor made a decree directing that the customary heir of S (who had been a party to the suit) should be admitted tenant to the copyhold premises in question, and when admitted should hold the same as trustee for the plaintiffs in the suit, and the amount of the fine was referred to the Master, and an injunction was granted as prayed: — Held, that the decree of the Vice Chancellor was right. Dimes v. the Grand Junction Canal Co., 3 H.L. Cas. 794; 8. c. 6 Law J. Dig. 192. Where a copyhold tenant makes a lease under a licence from the lord, and afterwards is guilty of for- feiture, the lease continues to subsist as against the lord ; and a defendant actually in possession by re- ceipt of rent, defending under the Common Law Procedure Act, 1 8i52, is entitled to set up the lease in an action of ejectment by the lord. Clarke v. Arden, 24 Law J. Rep. (n.s.) C.P. 24; 16 Com. B. Rep. 227. Qucere — Whether a bankrupt copyholder can com- mit a forfeiture. Ibid. Semite — that a licence enures as a lease between the lord and the lessee. Ibid. (C) Enfkanohisement — Costs of Petition fok Investment. A bishop, lord of a manor, enfranchised certain copyhold lands held of the manor under the Copy- hold Enfranchisement Act, and the consideration money was paid into court. A petition was presented by the bishop for the investment of the money : — field, that the Copyhold Commissioners had a right to appear at the hearing of the petition, and that their costs of the petition and those of the bishop were payable out of the consideration money. Ex parte the Bishop of Hereford, 21 Law J. Rep. (n.s.) Chanc. t)08; 5 De Gex & Sm. 265. COPYRIGHT. [International, see 16 & 16 Vict, c. 12 — Foreign reprints of books, see 16 & 17 Vict. c. 107. ss. 46, 166, and 18 & 19 Vict. c. 96. ss. 39, 40.] (A) Books and other Publications. (a) Title to the Copyright. (&) Actions amd Suits for Infrimgememt of Copyrigltt. (1) When maintainahle. (2) Undertaking as to Damages. (B) Dkamatio and Musical Pieces. (C) Prints and Engravings. (D) Designs, (E) Entry on Register at Stationers' Hall. (F) Assignment of. (A) Books and other Publications. (a) Title to the Copyright. There is no copyright at common law ; it is the creature of statute. Jefferys v. Boosey (in error), 24 Law J. Rep. (n.s.) Exch. 81; 4 H.L. Cas. 815: overruling Jefferies v. Boosey (in error), 20 Law J. Rep. (n.s.) Exch. 354; 8 Exch. Rep. 580. The statute 8 Ann. c. 19. was passed to encourage literature among British subjects. It does not ex- tend to foreigners resident abroad at the time of the publication of their works in this country, even though such works should be published here before they are published abroad. Ibid. In order to give the proprietor of a periodical a copyright in articles composed for him by others and pdid for by him, under the 18th section of the Copy- right Act, 5 & 6 Vict. u. 45, it is not necessary that there should be an express contract that he should have the property in the copyright. Sweet v. Bermimg, 24 Law J. Rep. (n.s.) C.P. 175; 16 Com. B. Rep. 459. Therefore, where the proprietors of a periodical containing law reports agreed to pay the reporters so much per sheet, and no mention was made as to the proprietorship of the copyright, — Held, that it must be inferred that the agreement was made on the implied terms that the copyright should be the property of the proprietors, and that they were, therefore, entitled to such property. Ibid. An author agreed with a firm of publishers that the author should prepare a legal work and correct proofs, &c. and the publishers should pay the ex- penses, and the author and publishers should divide the profits equally : if a second or subsequent edition or editions should be called for, the author was to make all necessary alterations, and the publishers were to print and publish on the same conditions; the account was to be finally settled at the end of five years. A first and second edition were published. One of the publishers retired from the concern, and a new partner was taken in. One of the new firm became bankrupt, and by two instruments all the interest of the new firm in the work and the unsold copies of the second edition were assigned for value to S & N. A third edition was prepared by the author and published by another publisher, and S & N filed a bill against the new publisher and the author, pray- ing an injunction and other relief: — Held, affirming 206 COPYRIGHT; (A) Books and other PnBLiOATiOKS. a decision of one of the Vice Chancellors, that the agreement between the author and the original pub- lishers was not an assignment of the copyright; that the agreement was of a personal nature, involving mutual duties and obligations, and was not of such a nature as could be assigned without the author's con- sent; and that the Court would not grant the injunc- tion. Stevens v. Benning, 24 Law J. Rep. (n.s.) Chanc.l63i 6DeGex,M. &G.223; lKay6cJ.168. A foreigner resident temporarily in England, pub- lished in England a work for the first time. A book- seller, being in the course of selling pirated copies of this work, Held, that the foreigner was entitled to the usual injunction to restrain the bookseller from selling them. Ollendorff ii. Blaclc, 20 Law J. Rep. (n.s.) Chanc. 165; 4 De Gex & Sm. 209. The plaintiff, who was the author of a guide-book, published the first edition before the passing of the Copyright Act, 5 & 6 Vict. c. 45, which was regis- tered at Stationers' Hall. Five subsequent editions were published after that act, but were not registered. Upon motion for an injunction to restrain the de- fendant fi-om publishing a book, which was alleged to be a piracy from the plaintiff's work, it was held, that the plaintiff could only sue in respect of the first edition of his work, and such parts of the subse- quent editions as were contained in the first edition, but could not be protected in respect of such parts of the subsequent editions as were new, without re- gistration under the Copyright Act. Murray v. Bogue, 22 Law J. Rep. (n.s.) Chanc. 457; 1 Drew. 353. Held, also, upon comparison of the two works, that the defendant had not made an unfair use of the plaintiff's book; and the injunction was refused. Ibid. Prints in books containing letter-press and prints, the prints being illustrative of the letter-press, are protected by the 5 & 6 Vict. c. 45. Bogue v. HouU ston, 21 Law J. Rep. (n.s) Chanc. 470; 5 De Gex & Sm. 267. The provisions of the 8 Geo. 2. c. 13. as to the date of the publication and the name of the proprie- tor being printed on every print, apply only to prints published separately, and do not apply to prints forming parts of books made up of prints and letter- press. Ibid. The plaintiffs alleged that they were the proprie- tors and pubUshers of a periodical containing original articles : that all the articles had been composed for the use of the plaintiffs by persons employed by them on the terms that the copyright therein should belong exclusively to the plaintiflis, and should be paid for by them : that the plaintiffs were entitled to the sole Uberty of publishing the articles in the said periodical, subject to the provisions of the Copyright Act, and that such articles were their exclusive pro- perty. An injunction had been granted ex parte to restrain the piracy of one of the articles in the plain- tiffs' publication : — Held, upon motion to dissolve the injunction, that actual payment to the author by the publisher of a periodical was a necessary condi- tion to the vesting of the copyright of any article in the publisher, but that the plaintiflFs had sufficiently alleged such actual payment. Jilchardson v. GilUrt^ 20 Law J. Rep. (n.s.) Chanc. 55.3; 1 Sim. N.S. 330. An alien residing abroad composed three musical pieces in a foreign country, and sold the copyright in the country to the plaintiff, a British subject, who published the work in London. The work was on the same day published in Prussia. On motion, in a suit instituted by the purchaser of the copyright against a person who, without leave, published the three musical compositions in this country : — Held, that the publication was within the Copyright Act, 5 & 6 Vict. c. 45, and the Court granted an injunc- tion restraining the unauthorized publication. Bux- ton V. James, 5 De Gex & Sm. 80. Where the plaintiff had contracted to correct and complete, from materials to be furnished by the de- fendant, a book which the defendant expressed his intention to write, and agreed also to supply the legal information connected with the subject, for which the plaintiff was to be paid a certain remune- ration, according to the number of the pages the work might contain, the Court refused an injunction to restrain the defendant from printing, publishing, or selling the legal part of the work (which the plain- tiff had contributed) with any material alteration or omission, and also refused an injunction to restrain the defendant from printing, publishing, or selling the work, until he had paid the plaintiff the sum agreed upon for his assistance and contribution ; for such payment may be enforced at law, and the title to it is not a ground for the interposition of a court of equity. Oox v. Cox, 11 Hare, 118. Semile unless there be a special contract, either express or implied, reserving to the author a qualified copyright, the purchaser of a manuscript is at liberty to alter and deal with it as he thinks proper. Ibid. (5) Actions and Suits for Infringement of Copy- right. (1 ) When maintainable. Under the Copyright Act, 6 & 6 Vict. e. 4S, an action will lie at the suit of the owner of the copy- right in a musical composition, for lithographing copies of it for the private use of the members of a musical society who perform gratuitously, and not for the purpose of sale or exportation. Novella v. lMdlow,il Law J. Rep. (n.s.) C.P. 169; 12 Com. B. Rep. 177. The 5 & 6 Vict. c. 45. s. 2. declares the word " copyright" to mean " the sole and exclusive liberty of printing or otherwise multiplying copies" of any book, and the 3rd and 4th sections define the terms for which such copyright is to exist. The ISth sec- tion provides that if any one print or cause to be printed either for sale or for exportation any book in which there is existing copyright, such offender shall be liable to a special action on the case : — Held, that this provision does not restrict the right conferred by the previous sections of the act, and that the owner of copyright is entitled by common law to his remedy by action for the infringement of that right. Ibid. The defendants published a monthly periodical professing to be a digest of the cases decided in the courts during the previous month, and inserted, among others, head or marginal notes copied verba- tim from the pltiintiffs' publication : — Held, diasen- tiente Maule, /., that the defendants were guilty of piracy under the ISth section of the act — Crovider, J. duUtante as to both points. Sweet v. Bcnnvinj, 24 Law J. Rep. (n.s.) C.P. 1 75; 1« Com. B. Rep. 459. The copyright of an alien was sold to a British COPYRIGHT; (D) Designs. 207 subject, who published it in this country in 1844. The copyright was infringed in 1849, but the state of the law then rendered it very doubtful whether the copyright was protected, and the purchaser merely protested against the infringement; but in 1851, within a reasonable time after the decision of a case in the Exchequer Chamber had established the general question of copyright in an alien, he filed his bill, and moved to restrain the publication of the pirated work : Held, that there had been no such delay as to disentitle him to an injunction, Buxton V. Jamet, S De Gex & Sm. 80. (2) Undertahmg as to Damages. A plaintiff claiming copyright in a work by a fo- reigner and assigned to him, obtained an injunction on giving an undertaking to abide by any order the Court might make respecting damages the defendant might sustain by reason of the injunction. The House of Lords (after conflicting decisions in the courts of law) decided, that a party in the situation of the plaintiff in this suit had no title to copyright; and the injunction was dissolved without opposition. The defendant moved for an inquiry as to damage, but one of the Vice Chancellors refused it, and merely dismissed the bill with costs, refusing the plaintiff's motion to dismiss without costs : — Held, upon appeal, overruUng part of the judgment of the Vice Chancellor, that the defendant was entitled to an inquiry what, if any, damage he had sustained. Novella v. James, 24 Law J. Rep. (n.s.) Chanc. Ill; 5 De Gex, M. & G. 876. (B) Dramatic and Musical Pieces. [See post, (E) Entry on Register at Stationers' Hall.] By the 3 & 4 Will. 4. c. 15. s. 2; persons repre- senting dramatic pieces without the consent in writing of the author are made liable to certain penalties: — Held, that the consent need not be in the hand- writing of the author, and may be given by any agent having due authority. If not limited in its terms, it may apply as well to dramas composed after it was given, as to those which were then in existence. Morton v. Copelcmd, 24 Law J. Rep. (N.S.) C.P. 169; 16 Com. B. Rep. 517. The plaintiff was a member of the Dramatic Au- thors' Society, which published prospectuses and rules announcing that leave might be obtained from the secretary to represent the pieces belonging to the members at certain prices mentioned in a list, and that lists should be published from year to year containing the names of the new pieces. In 1849, the secretary of the society gave the defendant leave in writing, signed by himself, to play " dramas be- longing to the authors forming the Dramatic Au- thors' Society, upon his punctual transmission of the monthly bills, and payment of the prices for the performances of such dramas." In 1854, the defen- dant performed three pieces of the plaintiff's which were composed after 1849, and had never been pub- lished in an annual list, the society having neglected to continue the publication of annual lists since 1846: Held, that the defendant was not liable to penalties; that the document given by the secretary in 1849 amounted, under the circumstances, to a " consent in writing of the author" ; that it applied to dramas which might be composed by the plaintiff after its date as well as those composed before ; and that the condition on which it was given was a con- dition subsequent and not precedent. Ibid. Semble, per Maule, J., that if the plaintiff had been entitled to bring the action for penalties, he would not have lost his right by accepting money paid under the agreement. Ibid. (C) Prints and Engravings. The proprietor of a foreign print cannot claim copyright therein under the International Copyright Act (7 & 8 Vict. c. 12) unless the date of publication and name of the proprietor are engraved on the plate and printed on the print, as required by the 8 Geo. 2. c. 13, Avanyo v. Mudie, 10 Exch. Rep. 203. (D) Designs. By 6 & 7 Vict. c. 65, a limited copyright is granted for " any new or original design for any article of manufacture having reference to some purpose of utility, so far as such design shall be for the shape or configuration of such article," provided such design is registered. Rogers v. Driver, 20 Law J, Rep. (N.s.) Q.B. 31 ; 16 Q.B. Rep. 102. A newly-invented brick, the utility of which con- sisted in its being so shaped that when several bricks were laid together in building, a series of apertures was left in the wall by which the air was admitted to circulate, and a saving in the number of bricks required was effected, is a design capable of being registered under the above statute. Ibid. Semble — that where the invention is the subject of a patent it may still be registered under the Copy- fight of Designs Act. Ibid. A design was registered for a new ventilator, consisting of an oblong pane of glass fixed in a frame, which was inserted into an ordinary window frame, and was hinged at the top so as to open and admit the air by means of a screw acted upon by cords passing over its head, and having a half pane of glass fixed in the lower portion of the frame in which the ventilating frame moved, so as to prevent a downward draught. The claim of the inventor was stated to be for the general configuration and combination of the parts, none of which if taken per se and apart from the purposes thereof were new or original : — Held, that this was not a design for the shape and configuration of an article of manu- facture within the 6 & 7 Vict. u. 65, and therefore not the subject of registration. Megina v. Bessell, 20 Law J. Rep, (N.s.) M.C. 177 ; 16 Q.B. Rep. 810. A conviction for the infringement of such a registered design was quashed for want of jurisdiction. Ibid. The Copyright of Designs Act, 5 & 6 Vict. c. 100. s. 4. excludes from the protection of the act the proprietor of any registered design applied to an article of manufacture, unless every such " article of manufacture" published by him has thereon the letters " Rd." One class of articles of manufacture mentioned in the statute is "paper-hangings." According to the usage of the trade, paper-hangings are sold for the purpose of papering rooms, in lengths of twelve yards, but it is also the practice of manu- facturers to sell, or otherwise issue in the way of their trade, patterns of paper-hangings in pieces of twenty-seven inches long, cut off from the lengths 208 COPYRIGHT— COSTS, AT LAW. of twelve yards, and where the design ig a registered one, the practice is almost universal of marking with the letters "Rd." each of these pattern pieces: — Held, that such patterns were an " article of manu- facture " within the meaning of the statute, and that a proprietor who had issued them to the trade without such mark was not entitled to recover against a party who had imitated the design, Ztis- sentiente Coleridge, J. Heywood v. Potter, 22 Law J. Rep. (n.s.) Q.B. 133; 1 E. & B. 439. The owner of a design, before it had been applied to any fabric or been registered, exhibited it to his customers in his place of business for the purpose of soliciting orders in respect of goods to which it was to be applied. Whether this amounted to a publi- cation of the design within the Designs Copyright Act, S & 6 Vict. c. 100 — qucere. Dalglishy.Jarvie, 20 Law J. Rep. (n.s.) Chanc. 475. (E) Entkt ow Reqister at Stationbbs' Hall. To entitle any one but the author of a literary work to register it at Stationers' Hall pursuant to the 5 &, 6 Vict. c. 45. s. 13, there must be an absolute assignment of the copyright. An entry having been improperly made on the register, the Court granted a rule to " vary or expunge it." Sx parte Bastow, U Com. B. Rep. 31. C brought an action against D for publishing three pieces of music alleged to be copyright of C. Before the action three entries had been made in the registry at Stationers' Hall, kept under 5 & 6 Vict. c. 46. s. 11. These entries as they stood would afford primd facie evidence of C's copyright in the three pieces. D obtained a rule nisi to expunge or vary those entries. It was obtained on an affidavit, by which it appeared that D claimed no copyright in the airs himself, but that his case was that they were old pieces, and that the persons who on the entries professed to be the authors were not really the authors; and the affidavit deposed to information and belief as to facts, which, if true, proved that the pieces were older than the supposed authors. The counsel for C refused to consent not to use these entries on the trial. The Court declined to expunge the entries, but enlarged the rule till the trial of an issue to determine the question of copyright in which C should be plaintiff, and on the trial the entries should not be used; proceedings to be stayed in the mean time. Ex parte Davidson, 2 E. & B. 677. (F) Assignment of. The defendant having been applied to by the plaintiff for permission to publish a work, wrote to him as follows : " You formerly made me an offer of 50?. for the exclusive right of publishing for ten years Captain M's work, ' Monsieur Violet,' which offer I accepted, and wrote to you to that effect. I possess bnt few of the copyrights of the earlier portions of Captain M's works, and they are many of them published in a cheap edition. I will let you know in a few days those of the works that belong to me that I feel disposed to offer to you. In the mean time, I shall be glad to know if you received my last letter, accepting your offer for ' ^Monsieur Violet,' and if not whether you still hold the same proposal." The 5QI. was afterwards paid, for which the defendant gave a receipt to the plain- tiff, expressed to be "for permission to publish Cap- tain M's work, ' Monsieur Violet,' so long as the copyright may endure, that right to be exclusively his own for ten years" : — Held, that this amounted to an express warranty by the defendant that he had the title to the copyright in question. Simms v. Mamjat, 20 Law J. Rep. (n.s.) Q.B. 454; 17Q.B. Rep. 281. Prior to the above transaction. Captain M, by an instrument in writing, not sealed or attested so as to pass the legal copyright, agreed to assign the copy- right in ' Monsieur Violet' to R B for 300?., with a stipulation that a deed of assignment of the copy- right should be executed. The 300?. was duly paid by R B : — Held, that the effect of this was to vest the equitable copyright in R B, who would be entitled to a decree for a specific performance of the contract, and that the plaintiff was consequently entitled to succeed upon issues denying the defen- dant's title to grant the copyright, and alleging that R B was equitably the proprietor thereof, and had the sole right to grant permission to publish. Ibid, An assignment of copyright by a foreigner resident abroad to another foreigner resident abroad, valid according to the law of the country where it was made, will not give to the assignee a title in this country to copyright in the unpublished work of which he is assignee, so that he can transfer it by assignment to an Englishman, though such last- mentioned assignment may be executed with all the forms required by the laws of this country. Jeffei^s V. Boosey, 24 Law J. Rep. (n.s.) Exch. 81 ; 4 H.L. Cas. 815 : overruling Boosey v. Jefferies (in error), 20 Law J. Rep. (n.s.) Exch. 354; 8 Exeh. Rep, 580, Qucere — whether there can be a partial assignment of copyright. Ibid. CORONER, [Compensation to, see CousTy.] CORPORATION. [See Company — Municipal Corpoea»ion.] COSTS, AT LAW. [In particular cases, see Arbitration — Attor- ney AND Solicitor — Bankruptcy — Company — Ejectment — Error — Execution — Executors AND Administrators — Mandamus — Practice, New Trial — Patent — Quo Warranto.] (A) In general. (a) By and against the Crown. {b) Concurrent Proceedings at Law amdim ( c ) Motions amd Rules. (1) Generally. (2) BuU making Judge's Order a Rule of Court, {d) Meaning of Words "On Payment of Costs'" iM Judge's Order. (e) Appeal from County Court, if) Actions by Paupers. COSTS, AT LAW; (A) Ik genebai,. 209 ((/) " Full Costs" under 17 Car. 2. c. 17. (h) Special Case wiihtmt Pleadhiffs. (i) £emwrrer. (B) Plaintiff's Eisbt to. (a) Certificate. (1) To deprive Plaintiff of Costs. ( 2 ) To give Plaintiff his Costs. ( Zi) Recovery by Verdict of less than 40s. (c) Operation of the County Court Acts and other Inferior Cowrts. {\) In general. ( 2 ) Where Title in Question. (3 ) Balamce of Account\see post, (9)]. ( 4 ) Judgment by Default, (a) Several Plaintiffs and Defendants [see post, (6)]. ( 6 ) Concuarent Jurisdiction — Hesi- deuce and Place of Business. ( 7 ) Officers of the Court. ( 8 ) Tender and Payment into Court [see post, (9).] ( 9 ) Amount recovered. (10) Judge's Order for Costs. (\) In what Cases. (ii) Whether discretionary or im- perative ;. 12. and the 121st of the General Rules of Hilary term, 1853. Dmchy v. the Great Northern Rail. Co., 24 Law J. Rep. (n.a.) Q.B.25; 4 E. & B. 341. {g) "FvU Costs,'' under 17 Car. 2. c. 17. The term "full costs," which occurs in the 1 7 Car. 2. c. 17. o. 3, has the same meaning as ordinary " costs." In an action of replevin, in respect of a distress for arrears of a rent-charge, both the plaintiff and the defendants had taken down the record for trial, and the defendants obtained a verdict: — Held, that under the 17 Car. 2. c. 7, which gives "full costs" to successful defendants in replevin, the de- fendants were entitled to ordinary costs only, and that they were entitled to the costs of taking down the record, but not to the costs of making the dis- tress. Jamieson v. Trevelyan, 24 Law J. Rep. (b.s.) Exch. 74; 10 Exch. Rep. 748. {h) Special Case wiffiovi Pleadings. Where, in a special case without pleadings under the Common Law Procedure Act, 1852, the plaintiff succeeds as to a part only of his claim, and the de- fendant as to the residue, the plaintiff is entitled to the general costs of the action, and the defendant to so much as he can satisfy the Master was ex- clusively expended upon that part of the case upon which he succeeded. Elliott v. Bishop, 24 Law J. Rep. (N.s.) Exch. 33; 10 Exch. Rep. 622. (i) Demurrer. [See AlUy v. Dale, post, (B) (c) (9).] Under the 3 & 4 Will. 4. c. 42. s. 84. the party who is successful upon a demurrer is entitled to a judgment for his costs irrespective of the termination of the suit; and where such judgment had been given for the plaintiff prior to the trial of the issues in fact, the withdrawal of a juror, with an agreement that no further action was to be brought, was held to be no waiver of the plaintiff's right to these costs. Bentley v. Dawes, 23 Law J. Rep. (r.s.) Exch. 279; 10 Exch. Rep. 347. (B) Plaintiff's Rioht to. {a) Certificate. (1) To deprive Plaintiff of Costs. A certificate to deprive the plaintiff of costs under the 43 Eliz. c. 6. s. 2. is inoperative if granted after final judgment, and it makes no difference that at the time of granting the certificate the amount of costs has not been inserted in the judgment book. The Court will, nevertheless, under particular cir- cumstances, give effect to the certificate by setting aside the judgment. Lyons v. Hyman, 20 Law J. Rep. (n.s.) Exch. 1 ; 5 Exch. Rep. 749. (2) To give Plaintiff his Costs. Under the 9 & 10 Vict. c. 95. s. 129. (the County Courts Act) a Judge of a superior court may certify for costs at any time before the costs are taxed. Tharratt v. Trevor, 20 Law J. Rep. (h.8.) Exch. 189; 6 Exch. Rep. 187. The Court will not lay down any rule to regulate the discretionary power as to certifying for coats, which is given by the 13 & 14 Vict. c. 61. ». 12. to the Judge who tries the cause. Palyner v. Richards, 20 Law J. Rep. (n.s.) Exch. 323; 6 Exch. Rep. 335. Where a plaintiff recovers 51. as damages in an action of tort in a superior court, a Judge may certify for costs, under the 13 &14 Vict. c. 61. s. 12. Garly v. Harris. 21 Law J. Rep. (k.s.) Exch. ICO; 7 Exch. Rep. 591. Under the City of London Small Debts Acts, l.v Vict. c. Ixxvii. ss. 119, 120, and 121, in actions on contract, where less than 20/. is recovered, the certi- ficate of the Judge must be granted at the trial ; but where the recovery is of a sum between 20/. and 50/. the certificate may be granted at any time. Chaplin r. Levy, 23 Law J. Rep. (s.s.) Exch. 200; 9 Exch. Hep. 673. (b) Recovery hy Verdict of less Hum 40». [See X'OSt, (c) (1), (4) and (9).] The first count charged the defendants with da- maging a party-wall by excavating it, and overload- ing it. Plea, as to the overloading, not guilty ; and as to the excavating, payment of 30/. into court. Replication, damages ultra. At the trial, the verdict was entered for the plaintiff, damages 2,000/., costs 40« , subject to the award of an arbitrator, to whom COSTS, AT LAW; (B) Plairtifp's Right to. 211 tlie cause was referred on the usual terms, but with- out power to certify for costs under the 3 & 4 Vict. e. 24. 8. 2, and he directed the verdict to be entered for the plaintiff on the first issue, with 205. damages, and for the defendant on the second : — Held, that the plaintiff had recovered by verdict less than iOs. damages, and that, therefore, the 3 & 4 Vict. c. 24. a. 2. applied, and deprived him of costs. Heid v. Ashhy, 22 Law J. Rep. (n.s.) C.P. 215; 13 Com. B. Eep. 897. In an action of trespass a verdict was taken for the plaintiff, subject to the award of an arbitrator, who was to have the powers of a Judge at Nisi Prius, and to enter the verdict as he thought fit. He entered it for the plaintiff, with less damages than 40«. and did not certify : — Held, that this was a recovery, by the verdict of a jury, within the meaning of the 3 & 4 Vict. c. 24. s. 2 ; and the plaintiff was therefore entitled to no costs. Cooper v. Pegg, 24 Law J. Rep. (n.s.) C.P. 167. (e) Operation of the Cownty Court Acts and other Inferior Courts. (1) In general. Plaintiff sued in trespass in the Supreme Court of the Island of Jamaica, laying his damages at 3,0002. a sum above the limit of the jurisdiction of the local Courts in the island, constituted by the Jamaica Act, 5 Vict. c. 26, and recovered a verdict for 403. : — Held, first, that the sum recovered by the verdict and sanctioned by the judgment, and not the sum laid in the declaration, was the test to be applied, to ascertain the right to sue in the Supreme Court, and to entitle the plaintiff to Supreme Court costs. Se- condly, that the plaintiff having recovered by the verdict a sum not exceeding 40«., he was not entitled to more costs than damages, and the judgment of the Court, giving Supreme Court costs, reversed. Emery v. Binm, 7 Moore, P.C.C. 195. (2) Where Title in Question. Where to an action of trespass qua/re claumm fregit the defendant pleaded "not possessed," but no question of title in fact came in question : — Held, that the jurisdiction of the county court was not ousted. Latham, f.Speddmg, 20LawJ.Rep. (n.s.) Q.B. 302; 17 Q-B. Rep. 440. (3) Balance of Account. {See post, (9) Amount Recovered.] (4) Judgment hy Defamlt. The e:(ception in the 11th section of the County Courts Extension Act, 13 & 14 Vict. c. 61, as to costs in the case of judgment by default, applies to interlocutory as well as to final judgment by default. Glyrnie v. Roberts, 23 Law J. Rep. (n.s.) Exch. 64; 9 Exch. Rep. 253. Where a plaintiff in an action of contract, after judgment on demurrer, recovers less than 20i. on an inquisition of damages, he is deprived of his costs by the 13 & 14 Vict. c. 61. s. 11, the case not coming under the exception as to judgment by default. Prem v. Sqmre, 20 Law J. Rep. (n.s.) C.P. 175; 10 Com. B. Rep. 912; 2 L. M. & P. P.C. 346. Quimre — whether the word "verdict" in the 12th section of the 13 & 14 Vict. c. 61. means a verdict at the trial of the cause only, or includes a verdict on a writ of inquiry — see Heed v. Shruisole, 18 Law J. Rep. (H.S.) C.P. 225. Ibid. (5) Several Plaintiffs and Defendants. ISee post, (6).} (6) Concurrent Jwrisdiction — Residence and Place of Business. Where one of several plaintifl^s dwells beyond twenty miles from the defendant, the superior courts have concurrent jurisdiction with the county court, under the 9 & 10 Vict. c. 96. s. 128, and the plaintiffs will be therefore entitled to costs under the 13 & 14 Vict. c. 61, notwithstanding less than '201. is recovered. Hickie v. Salomo, 21 Law J. Rep. (n.s.) Exch. 271 ; 8 Exch. Rep. 69. Where some only of several defendants reside within the jurisdiction of the county court within which the cause of action arose, the superior courts have concurrent jurisdiction with the county court within the meaning of the 128th section of the 9 & 10 Vict. c. 95. For this purpose the persons who fill the oflSce of sheriff of Middlesex are distinct persons. Doyle v. Lawrence and Robertson v. dun- ning, 2 L. M. & P. P.C. 368. Where the plaintiff in an action in a superior court, resided at Inverness, more than twenty miles from the defendant, but had been in the habit for some years of coming to London and residing for some months in Golden Square, for the purposes of his business, within the jurisdiction of a county court and less than twenty miles from the defendant, and was residing there during the whole time of the action, — Held, that the plaintiff did not " dwell" in Golden Square, within the meaning of the 128th section of the 9 & 10 Vict. c. 95, but at Inverness; and that therefore the superior court had concurrent jurisdiction with the county court under that section. Macdougall v. Paterson, 21 Law J. Rep. (n.s.) C.P. 27; 11 Com. B. Rep. 755. Semite — That if the plaintiff dwells at two places, one of them less and the other more than twenty miles from the defendant, the superior courts have concurrent jurisdiction. Ibid. The 13ih section of the 13 & 14 Vict. c. 61, which provides that if the plaintiff, in an action in a superior court, in which less than 201. is recovered, shall make it appear to the satisfaction of the'Court or of a Judge at chambers upon summons that the action was brought for a cause in which concurrent jurisdiction is given to the superior courts by the 9 & 10 Vict. c. 95. s. 128, the Court or Judge may direct that the plaintiff shall recover his costs, does not give the Court or Judge any discretion, but only confers upon them an authority to make such an order, which they are bound to exercise if it appears by affidavits that the case falls within section 128. [Overruling Jones v. Harrison and Palmier v. RicAao'ds.l Ibid. The defendant had entered into a written agree- ment to take 20,000 bricks of the plaintiff at a stated price. After the delivery of 3,000 he refused to take any more, or to pay for those already delivered, alleging that they were not the sort specified in the agreement. The plaintiff and defendant resided less than twenty miles apart, but in different county court districts. The bricks were delivered at the plaintiff's place of 212 COSTS, AT LAW; (B) Plaintiff's Right to. business, but the agreement was signed by the defen- dant at his own residence. The plaintiff sued the defendant to recover the price of the 3,000 bricks delivered, and recovered less than 201. At the trial the agreement was put in as part of the plaintiff's case : — Held, that the plaintiff was not entitled to recover his costs, as the cause of action arose in some material point within the jurisdiction of the county court where the defendant dwelt, and the action ought not to have been brought in the superior court. Norman v. Marchamt, 21 Law J.Eep. (n.s.) Exch. 2o6; 7 Exch. Rep. 723. Where a Judge has made an order giving the plaintiff his costs under 15 & 16 Vict. c. 24. s. 4. and 9 & 10 Vict. c. 9S. s. 128, on the ground that *' the cause of action did not arise wholly or in some material point within the jurisdiction of the county court within which the defendant carried on his business at the time of the action brought," the Court has power to review such order, and to rescind it if the Judge has drawn a wrong conclusion from the affidavits. Stokes v. Grissell, 23 Law J. Rep, (N.s.) C.P. 141; 14 Com. B. Rep. 678. Though the onus of proof in such a case is upon the plaintiff, it is the onus of proving a negative; and therefore when the plaintiff states that he is informed and believes, and gives some reason for his belief, that the defendant did not carry on any business at the time of action brought, it lies upon the defendant to satisfy the Court that he did carry on some busi- ness within the jurisdiction of the county court. Ibid. Per /cms, C.J. and Maule, J The " twenty miles" mentioned in the 9 cS; 10 Vict. c. 9b. s. 128, are to be measured " as the crow flies." Ibid. Under the 128th section of the 9 & 10 Vict. c. 95, which gives the county court a concuirent jurisdiction with the superior courts in cases where the plaintiff dwells more than twenty miles from the defendant, this distance is to be measured in a straight line upon a horizontal plane, and not by the nearest practicable mode of access. Lake v. Butler, 24 Law J. Rep. (n.s.) Q.B. 273. Corporations and quasi corporations, under the Joint-Stock Companies Act, 7 & 8 Vict. c. 110, are within the jurisdiction of "the county court, and plaintiffs suing them in the superior courts are within the operations of sections 128. and 129. of the 9 & 10 Vict. c. 95. depriving parties of costs in certain cases. The exception in those sections of cases where the plaintiff dwells more than twenty miles from the defendant either does not apply at all to corporations, or, if applicable, a trading cor- poration "dwells" at the place where its business is carried. Taylor v. the Cmwlamd Qas amd Coke Co., 24 Law J. Rep. (n.s.) Exch. 233. Semble — As there is no power in the county court to issue execution against members of a joint-stock company in the cases where such execution may be issued in actions in the superior courts under the 7 & 8 Vict. c. 110. s, 66, proof that a plaintiff can- not otherwise obtain satisfaction of his debt, is a sufficient reason for suing a joint-stock company in the superior courts within the 15 & 16 Vict. c. 54. s. 4, which enables the Court or a Judge to give full costs if there was sufficient reason for bringing the action in the superior court. Ibid. Upon a motion to enter a suggestion to deprive the plaintiff of costs under the London Small Debts Act, 15 & 16 Vict. c. Ixxvii. o. 119, it is enough if the affidavit shews with reasonable certainty that the plaintiff and defendant did not, at the time of tlie commencement of the action, dwell more than twenty miles apart. Shepherd v. Baker, IC Com. B. Rep. 544. And, it seems, the motion may be made at any time before the costs are taxed. Ibid. (7) Officers of the Court. If an action be brought in the superior courts against the high bailiff of a county court, in respect of a claim to goods and chattels taken in execution of the process of the court, and the jury give less than 20?. damages, section 139. of the statute 9 & 10 Vict. c. 95. deprives the plaintiff of costs, unless the Judge certify that the action was proper to be brought in such superior court; and the plain- tiff is not entitled to costs under section 12^, for the case falls within the exception in that section. Mann V. Buckerfield, 20 Law J. Rep. (h.s.) Q.B. 265; 2 L. M. & P. P.C. 55. On the plaintiff proceeding to tax his costs, it was admitted before the Master that the defendant was the high bailiff, and no objection was then taken that the defendant had not applied to enter a sug- gestion, and the Master declined to tax the costs; Held, that the objection of the want of proof that the defendant was high bailiff, and of the want of a suggestion, could not be taken on a motion to review the Master's decision. Ibid. (8) Tender and Payment into Court. [See post, (9).] (9) Amount recovered. [See^os*, (E)(J)>] The 129th section of the 9 & 10 Vict. c. 96. deprives a plaintiff who recovers less than 51. in an action on tort, in a superior court, of the costs of a demurrer on which he has succeeded, as well as the costs of issues in fact. Abley v. Dale, 21 Law J. Rep. (N.s.) C.P. 104 ; 11 Com. B. Rep. 889. Where the sum sued for, exceeding 20i.is reduced below that amount by a plea of tender of part (which is confessed), and a verdict is found for the plaintiff for the residue, the pfaintiff is not deprived of his costs by the county courts acts. Cross v. Seaman, 20 Law J. Rep. (n.s.) C.P. 177; 2 L. M. & P. P.C. 273. The words " balance of account " in section 58. of the County Coirrt Act are not limited to cases where the parties have met and settled an account; but include a debt reduced below 20/. by payment on account; and in such case where in- an action in the superior courts less than 20i. is recovered by the verdict, the plaintiff is not entitled to costs, unless the Judge certifies that the action is fit to be brought in the superior court. Turner v. Berry, 20 Law J. Rep. (.N.s.) Exch. 89; 5 Exch. Rep. 85.8. Under the City of London County Court Act, 15 & 16 Vict., c. Ixxvii. ss. 49, 119, 1 20, an attorney plaintiff is not deprived of his costs if he recoveis more than 201., though not more than 50i., his privilege to sue in the superior court when more than 201. is recovered not bemg taken away by that act. COSTS, AT LAW; (B) Plaintiff's Rioht to. 213 Sorradaile v. Nelson, 23 Law J. Rep. (n.s.) C.P. 1S9; U Com. B. Rep. 655. Where, in an action on a solicitor's bill of costs in Chancery, a verdict was given for the amount, subject to taxation, and a Judge's order was made to tax the bill, and the bill was afterwards taxed by an officer of the Court of Chancery, this Court refused to review the taxation. Ibid. The Judge's order for taxation directed that the parties, if the bill should be reduced on taxation, should remain in the same position as to costs as if the verdict had been found for the smaller amount; and between the making of that order and the taxa- tion the .Judge before whom the cause was tried died, so that it was impossible to get a certificate from him under the County Court Act to save the plaintiffs' costs. The Court refused, after the bill had been taxed under 501., to rescind the Judge's order so far as regarded the state of parties as to costs after taxation. Ibid. The rule that a plaintiff refusing a sum tendered by the defendant at one stage of an action and after- wards accepting the same sum, is to be deprived of his costs subsequent to the refusal, was held not to apply where thedefendant, having paid part, tendered 6.S". i^d. for the residue of tlie debt claimed, and the plaintiff refused it, but afterwards took 7s., paid into court by the defendant, the plaintiff having intended to go on bond fide for a larger sum, but having aban- doned his claim on account of the difficulty of proving it. Semble — that the rule does not apply where the sum accepted exceeds the sum tendered by any amount however small, Shmv v. Hv,yhe», 24 Law J. Rep. (h.s.) C.P. 84; 15 Com. B. Rep. 660. If a plaintiff, suing in a superior court for a debt exceeding Wl., take out and accept, in satisfaction of his cause of action, a sum under 201., paid in by the defendant, he is not deprived of his right to costs by the statute 13 & 14 Vict. u. 61. a. 11, as money so taken out is not a sum recovered in the action within the meaning of the above section. Chambers V. WiUs, 24 Law J. Rep. (n.s.) Q.B. 267. (10) Judge's Order for Costs. (■i) In what Gases. The Court, or a Judge at chambers, has the power of certifying to give costs under the 13th section of the 13 & 14 Vict. c. 61. (the County Courts Ex- tension Act), notwithstanding the power of certifying as a Judge at Nisi Prius to give costs under the 12th section of that act has by an order of reference been ■given to an arbitrator, who has failed to certify; the certificate under the 1 3th section being one which a Judge at chambers or the Court has power to give, and different from that which a Judge at Nisi Prius is empowered to give under the 12th section. Sharp V. Eveleigh, 20 Law J. Rep. (n.s.) Exch. 282. (ii) Whether discretiona/ry or imperative on Judge to gramt. [See Macdougall v. Paterson, ante, (6), and Or- chard V. Moxsy, post, (iv).] The power given by the 13 & 14 Vict. c. 61. o. 13. to the Court, or a .ludge at chambers, to make an order that the plaintiff in an action shall recover his costs, notwithstanding the provisions of the 11th section, is discretionary, and not in any case com- pulsory. Jones y. Harrison, 20 Law J. Rep. (n.s.) Exch. 166; 6 Exch. Rep. 328. The 13th section of 13 & 14 Vict. „. 61, which provides that where less than 201. is recovered in an action in the superior courts, and it shall be made to appear to the satisfaction of the Court or a Judge at chambers, that the action was of the description therein specified, such Court or Judge " may there- upon by rule or order direct that the plaintiff shall recover his costs," confers a power upon the Court or a Judge to grant costs, which is imperative in cases falling within that section. Crake v. Powell, 21 Law J. Rep. (n.s.) Q.B. 183. In all cases where the superior courts have a con- current jurisdiction with the county courts, imder the 128th section of the 9 & 10 Vict. c. 95, or where no plaint could have been entered in any county court, or where the cause is removed from the county court by certiorari, the Court or a Judge is boxmd, by the 13 & 14 Vict. c. 61. o. 13, on being satisfied that the case falls within the r28th section, to make an order that the plaintiff who has reco- vered less than 20/. in a superior court shall recover his costs. Asplin v. Blaclcman, 21 Law J, Rcpi (n.s.) Exch. 78; 7 Exch. Rep. 386. (iii) Application for. Where a plaintiff recovers in a superior court a less sum than those mentioned in the 13 & 14 Viet. c. 61. s. 11, in any of the actions there specified, the onus of proving that he is entitled to costs under section 13. of the same act is cast upon him ; and if he claims his costs upon the ground that title was in question, under the 9 & 10 Vict. c. 96. s. 58, he is bound to estabhsh the fact that the title did really iond fide came in issue, and not merely that the defendant so pleaded that it might possibly have come in issue. Ladiaim v. Spedding, 20 Law J. Rep. (N.S.) Q.B. 302; 2 L. M. & P. P.C. 378. No time is fixed within which an application for costs is to be made under the 15 & 16 Vict. c. 54. s.. 4, in cases where the county courts and the supe- rior courts have concurrent jurisdiction. Biced, or Bad, V. QwrdAier, 22 Law J. Rep. (n.s.) Exch. 253; 8 Exch. Rep. 651. Judgment was obtained by the plaintiff in Febru- ary 1852, and the damages paid, but no application for costs was made until January 18S3, the defendant having been out of the jurisdiction during that time : — Held, that the plaintiff was entitled to his costs. Ibid. A cause was, on the 2iid of April 1852, referred to arbitration : the costs to abide the event. On the 9th of the following June the arbitrator certified that the plaintiff was entitled to 6/. I85. 6d., in addition to the sum of \0l. which the defendant had paid into court. No steps were taken by the plain- tiff to obtain his costs until the 7th of February 1853, when an application for the same, under the 13 & 14 Vict. e. 61. s. 13. was made to a Judge at chambers. On the hearing of the summons it was objected that the application was too late. The learned Judge refused to decide the question, but referred the parties to the Court : — Held, that the application was not too late, and that the plaintiff was, therefore, entitled to his costs. Morris v. Bos- worth, 22 Law J. Rep. (n.s.) Q.B. 276; 2 E. & B. 213. 214 COSTS, AT LAW; (B) PXiAiMiPF's Right to. In any action in the superior courts in which the plaintiff shall primd facie be disentitled to costs by reason of section 11. of the statute 13 & 14 Vict. e. 61, if there be facts which would take the case out of the prohibition of that section, seiribU that the Master could not take notice of those circumstances, but that application should be made to the Court or a Judge under section 4. of the statute IS & 16 Vict. c. 54, for an order directing that the plaintiff shall recover his costs before the plaintiff applies to the Master to tax them. Levi v. M'Rae, 22 Law J. Rep. (N.s.) Q.B. 311. An application to a Judge by a plaintiff for costs under the County Courts Extension Act, need not be supported by affidaTit unless the facts are contro- verted bv the defendant. Power v. Jones, 6 Exch* Eep. 121. (iv) AppeaZ from Judge's Decision. [See StoJces v. Grissell, ante, (6).] Applications to review the decision of a Judge at chambers should be made in the course of the next term after the decision has been made. Meredith v, Gittem. 21 Law J. Eep. (n.s.) Q.B. 273; 18 Q.B. Eep. 257. In April 1851 the plaintiff recovered in a superior court less than 20^. In June 1851 a summons for costs, under 13 & 14 Vict. c. 61. s. 1 3, was taken out before a Judge at chambers, who indorsed it " No order." In January 1851 an application to the same effect was made to the Court : — Held, that this could only be by way of appeal from the decision of the Judgeatchambers,and was therefore too late. Ibid. Where a Judge declined to make an order to give the plaintiff his costs under the County Courts Act, 13 & 14 Vict. c. 61. 8. 1 3, and an application is made to the Court, fresh affidavits may be used in addition to those made use of before the Judge. Sanderson V. Procter, 23 Law J. Epp. (n.s.) Exch. 320; 10 Exch. 189. In a case where the Court of Queen's Bench had concurrent jurisdiction with the county court by Stat. 9 & 10 Vict. c. 95. a. 1 28, the plaintiff recovered only 40s. damages. This sum he accepted from the defendant without prejudice to any claim for costs : and he summoned the defendant to shew cause before a Judge at chambers why the costs should not be taxed, and paid by defendant to plaintiff. The Judge, considering that a discretion on this point was vested in him by stat. 13 & 14 Vict. c. 61. s. 13, refused to make an order. In the next term but one after this decision, the plaintiff moved the Court of Queen's Bench that the costs might be taxed and paid to him by the defendant; relying on a decision of the Court of Common Pleas, since the hearing at chambers, that the Judge, under section 13, was bound to grant costs: — Held, that the application was too late. Orchard v. Moxsy, 2 E. & B. 206. Qucere — whether the enactment in stat. 13 & 14 Vict. c. 61. 8. 13, that the Judge in the cases there mentioned, " may " order costs, be imperative or only permissive. Ibid. (11) Suggestiofi on the Roll. (i) Wfien necessaury. Where the defendants's affidavit?, on motion for a suggestion under the County Courts Act to deprive the plaintiff of costs, stated that the residence of the plaintiff was within twenty miles of that of the defen- dant, and that the cause of action arose wholly within the jurisdiction of the County Court of B, which facts were denied by the affidavit of the plaintiff, the Court refused to determine those questions on affidavits, and directed a suggestion to be entered. Lewis v. Forsyth, 20 Law J.. Eep. (n.s.) Exch. 25 ; 5 Exch. Eep. 904. QucBre — whether the London Small Debts Act, the 10 & 11 Vict. c. Ixxi., is affected by the 1 3 cSc 1 4 Vict, c. 61. so as to render unnecessary a suggestion on the roll for the purpose of depriving a plaintiff of coats under the provisions of the former act. Hewitt V. Paterson, 20 Law J. Rep. (n.s.) Exch. 337; 6 Exch. Eep. 689. The construction of the 119th and 120th sections of the City of London Small Debts Act is, that where a plaintiff in the superior courts recovers leas than 20 1 in an action on contract, or less than 5A in an action on tort, which might have been brought in the city court, he loses his costs, without any sug- gestion ; and if he recovers 20^., and not more than 60^., in an action on contract (except in certain spe- cified actions), he will lose his costs, if the defendant enters a suggestion. Castrigue v. Page, 24 Law J. Eep. (N.S.) C.P. 145; 13 Com. B. Eep. 458. (ii) Affidavit; lucessary Averments.. On motion for a suggestion to deprive a plaintiff of costs under the County Courts Act, an affidavit which stated that the plaintiff dwelt within twenty miles /com the defendant, instead of from the resi- dence of the defendant, was held to be bad. Room v, Gottam, 20 Law J. Eep. (n.s.) Exch. 24; 5 Exch. Eep. 820. An affidavit for a suggestion to deprive a plaintiff of costs under the County Courts Act stated as fol- lows : — " That the plaintiff now dwells, and at the time of the commencement of this action dwelt, at Birmingham, in the county of Warwick, which is within twenty miles from Bilston, the place where the defendant now dwells, and also within twenty miles from Wolverhampton, in the county of Staf- ford, the place where the defendant dwelt and car- ried on his business at the time this action was com- menced" : — Held, insufficient. Fry v. Whittle, 20 Law J. Rep. (n.s.) Exch. 231 ; 6 Exch. Eep. 411. (C) Defendant's Eight to. [See (A) In general, (e).] (a) For not proceeding to Trial. [See 15 & 16 Vict. c. 76. s. 99 Eeg. Gen. Hil. term, 1853, r. 39, 22 Law J. Eep. (n.s.) xi; 1 E. & B. App. X.] A remanet cannot be countermanded; therefore, where a cause was made a remanet from one sittings to another, and four days before the last sittings the plaintiff gave the defendant notice that he had with- drawn the record and should not proceed to trial, it was held that he was liable to pay costs. Temipany. V. Rigby, 24 Law J. Rep. (n.s.) Exch. 32; 10 Exch. Rep. 476. (6) On Discontiimance. [See Reg. Gen. Hil. term, 1853, r. 23, 22 Law J. Eep. (n.s.) ix; 1 E. & B. App. vL] The defendant having died after issue joined and COSTS, AT LAW; (E) Taxation op Costs. 215 notice of trial given, a suggestion of his death was (liily made, and his administratrix appeared and pleaded to the suggestion. The plaintiff afterwards applied to a Judge at chambers for leave to discon- tinue on payment of the costs of the pleas to the suggestion, but the Judge made the usual order on payment of full costs: — Held, that the order was right; for that the 138th section of the Common Law Procedure Act put the administratrix in the same position as if she had been the original defen- dant in the action. Benge v. Swame, 23 Law J. Rep. (n.s.) C.P. 182; 15 Com. B. Rep. 784. (c) Feigned Issue. Where the Court has granted an application for a feigned issue, under the statute 8 & 9 Vict. c. 118. 8. 44, to try whether a certain close be part of a par- ticular manor, and the applicant, the plaintiff in the feigned issue, fails on the trial, the Court will order him to pay the costs of it to the defendant in the feigned issue. Hegma v. Eelsey, 20 Law J. Rep. (N.s.) Q.B. 283; 2 L. M. & P. P.C. 134. (D) Security foe Costs. [See title Staying Pkooeedihgs.] (a) Application for. [See Reg. Gen. Hil. term, 18S3, r. 22, 22 Law J. Rep. (h.s.) ix; I E. & B. App. xi.] (5) Lischa/rge of Order for. A plaintiff who, being abroad, has, after service of the writ of summons on the defendant, been ordered to give security for costs, with a stay of proceedings in the mean time, and does not give security, but, on his return to England, has the order discharged, is at liberty to declare, although more than a year has elapsed since the service of the summons. Ross v. Green, 24 Law J. Rep. (n.s.) Exch. 193; 10 Exch. ' Rep. 891. (c) Residence Abroad. The plaintiffs, a railway company, whose line was in Ireland, carried on their business in Westminster, having no property of the company in Ireland, and their property in England not being sufficient to answer the defendant's costs. The most affluent of four-fifths of the shareholders resided in England, none of them except three had paid up more than 21. 10s. per share, and a considerable number of the said four-fifths were responsible to the extent of the capital not paid up. The plaintiffs were compelled to give security for costs. The Kilkenny and Oreat Southern and Western Rail. Co. v. Fielden, 20 Law J. Rep. (n.s.) Exch. 141; 6 Exch. Rep. 81 ; 2 L. M. & P. P.C. 124. If a plaintiff resident abroad has real estate in England liable to the defendant's execution for costs, he is not bound to give security for costs; but where the plaintiff's affidavit stated " that he was possessed of landed estates in the county of Durham, of con- siderable value over and above all charges affecting the same," the Court held, that it did not sufficiently shew that the estate was available to process by the defendant. Swinhowne v. Carter, 23 Law J. Rep. (N.s.) Q.B. 16; 1 Bail C.C. 209. A plaintiff resident abroad and engaged in the civil service of the East India Company as a civil and sessions Judge, is not exempt from the rule requiring plaintiffs to give security for costs. Plowden v. Campbell, 23 Law J. Rep. (n.s.) CI.B. 384. (d) Foreigners. Security for costs will not be required from a plain- tiff who is a foreigner if he is actually in this country. Tambisco v. Pacijico, 21 Law J. Rep. (n.s.) Exch. 276; 7 Exch. Rep. 816. It ia not sufficient ground for requiring security for costs that the plaintiff is a foreigner lately come to this country, having no family connexions or perma- nent abode in it and likely soon to leave it, if it be sivorn Jhat he has a permanent residence abroad. So held, where plaintiff was a negro sailor lately brought to England from America as cook of a merchant vessel and was paid off in London. And a rule nisi was refused. Srwmmond v. Tillinghist, 16 Q.B. Rep. 740. (c) Insolvents. The Court will require security for costs to be given by a plaintiff who is insolvent, and who sues not for his own benefit, but for that of the person to whom he has assigned the debt. Qoatley v. Em/mart, 24 Law J. Rep. (n.s.) C.P. 38; IS Com. B. Rep. 291. (/) Felons wider Sentence. Where a plaintiff, after being convicted of felony, sentenced to transportation, and confined in Portland Prison, brought an action, the Court compelled him to give security for costs. Ba/rrett v. Power, 23 Law J. Rep. (n.s.) Exch. 162; 9 Exch. Rep. 338. (E) Taxation or Costs. [See IS & 16 Vict. c. 76. s. 223_Reg. Gen. Hil. term, 1853, rr. S9, 60, 61, 22 Law J. Rep. (n.s.) vi.; 1 E. & B. App. xxviii,] (a) Notice -of Taxation. Where judgment has been signed, costs taxed, and execution issued for the amount of debt and costs without notice of taxation, the Court will not set aside the judgment or execution, but will direct a review of the taxation. Field v. Partridge, 21 Law J. Rep. (n.s.) Exch. 269; 7 Exch. Rep. 689. (5) Scale of Taxation. To an action for a money demand exceeding 20t the defendant pleaded a tender as to 23/., and never indebted, and other pleas to the residue. A verdict was found on the issue on the plea of tender for the defendant, and on the other issues for the plaintiff for 3/.: — Held, that the plaintiff was entitled to have his costs taxed on the higher scale, as the amount of the tender was part of the sum recovered in the action, which consequently exceeded iOl. Cooch v. Maltby, 23 Law J. Rep. (h.s.) CI.B. 305. Where a cause is referred on the usual terms, costs to abide the event, the costs of the reference and award to be at the discretion of the arbitrator, and by the award less than Wl. is recovered; and the costs of the reference and award are awarded to be paid by the defendant; the costs of the reference are not to be taxed on the lower scale. Holland v. Vincent, 23 Law J. Rep. (n.s.) Exch. 78 ; 9 Exch. Rep. 274. After writ issued, and before any pleadings, the cause and all matters in difference were referred ; the 216 COSTS, AT LAW; (E) Taxation or Costs. costs of the cause to abide the event, the costs of the reference and award to be in the discretion of the arbi- trator. The award directed that all further proceed- ings in the cause should cease, that the defendant should pay to the plaintiffs \90t. in satisfaction and discharge of all claims and demands in the cause and matters in difference, and then disposed of the costs of the reflirence and award; — Held, that the award was sufficiently final and certain, for that it was to be inferred that something was due to the plaintiffs in the cause, and the amount was im- material, as the rule as to costs upon the lower scale does not apply to awards. Nicholson v. Sykes, 23 Law J. Rep. (n.s.) Exch. 193; 9 Exch. Rep. 357. (c) Costs in the Cause. [See post, (j) Witnesses.] Assumpsit by an engineer for making the surveys and plans for a proposed railway. Pleas, general issue and payment. On the trial the cause was re- ferred, the costs to abide the event. To support his case the plaintiff relied on the evidence of H (who had been examined under a commission) to prove that the plans and surveys were correct. The de- fendant sent engineers down to examine the ground, and called them as his witnesses, to prove that the work was badly done. The arbitrator found for the plaintiff on the first, and for the defendant on the second issue. On the taxation of costs the Master disallowed the defendant the costs of cross-examining H, and the costs of the journies and surveys of his engineers, though he allowed the costs of their attend- ance before the arbitrator: — Held, that the Master was right on both points, with regard to H, as his evidence related only to the first issue, and with re- gard to the costs of the engineers that it is a general rule of taxation that expenses of preparing witnesses to give evidence are not costs of litigation chargeable to the losing party. Gravatt v. Attwood, 21 Law J. Rep. (n.s.) Q.B. 215. In an action by a carrier against a railway company, to recover back excessive and unequal charges made upon him for the conveyance of his goods, a verdict was entered for the plaintiff, for 10,000/., subject to a special case to be settled by a barrister, who, in the event of the Court deciding in favour of the plaintiff, was by the order of reference empowered to direct for what amount the verdict should be entered, and to whom the cause and all matters in difference between the parties were referred, subject to the special case, — the costs " of the action" to abide the event of the award, and the costs " of and incident to the reference and award" to be in the discretion of the arbitrator. The special case, as settled by the referee, divided the plaintiff's claim into six several heads; and, the Court having decided in the plaintiff's favour upon four of them, and for the defendants on the rest of the case, the matter went back to the arbitrator, who ultimately directed that the verdict should be entered for the plaintiff for 3,115?., and that so much of the issue as related to that sum should be found for the plaintiff, and the residue thereof for the defend^ut: and he further directed that all the costs of and'^cident to the reference and award should be paid by the de- fendants: — Held, that the coats of the attendances before the referee to settle the special case were costs in the cause; and therefore that the Master was justi- fied in apportioning them according to the decision of the Court upon the several heads of claim in the special case. Edwards v. the Great Western Rail. Co., 12 Com. B. Rep. 419. (d) Several Issues. [See IS & 16 Vict. c. 76. a. 80 Reg. Gen. Kil. term, 18S3, r. 62, 22 Law J. Rep. (k.s.) xii; 1 E. & B. App. xiii.] Where a plaintiff succeeds on all of several issues of fact, and the defendant has judgment of demurrer, the plaintiff is entitled to the costs of the issues found for him, under the 4 & 6 Ann. c. 16. s. 5. Callan- der V. Howard, 20 Law J. Rep. (n.s.) C.P. 66; 10 Com. B. Rep. 302; 1 L. M. & P. P.O. 755. [Supporting Bird v. Higyimson, 5 Ad. & E. 83; s. c. 6 Law J. Rep. (k.s.) K.B. 262; and Clarice v. Allatt, 4 Com. B. Rep. 335 ; overruling Partridge V. Gardner, 4 Exch. Rep. 303; s. c. 18 Law J. Rep. (k.s.) Exch. 415, and Howell v. Rodiard, 4 Exch. Rep. 309; s.c. 19 Law J. Rep. (k.s.) Exch. 350.} The defendant pleaded seven pleas to a declaration in assumpsit. Issues in. fact were joined on six of them, which were all found for the plaintiff at the trial. To the seventh plea, which went to the whole declaration, the plaintiff demurred, and judgment on the demurrer was, after the trial of the issues in fact, given for the defendant, on the ground that the declaration was bad: — Held, that the plaintiff was not entitled to the costs of the issues in fact found in his favour under the stjitute 4 Ann. c. 16. s. 5, as that statute applies only to cases where the declara- tion discloses a good cause of action. Partridge v. Gardner (in error), 20 Law J. Rep. (n.s.) Exch. 307; 6 Exch. Rep. 621. To debt for work and labour the defendant pleaded, except as to &Sl., never indebted; except, &c., set- off; except, &c., payment; and as to 59Z., payment into court. The cause was referred, and the plain- tiff gave evidence before the arbitrator, who found the first issue for him, and the other two for the defendant: — Held, that the plaintiff was not entitled to his costs as a witness, unless called to give evidence exclusively applicable to the first issue; and that evidence that a larger debt ever existed than was covered by the pleas of payment and set-off, was not exclusively applicable to the first issue. Clothier v. Gann, 22 Law J. Rep. (n.s.) C.P. 98; 13 Com. B. Rep. 220. The declaration contained three counts, to the first and third of which the defendant demurred, paying 255. into court on the second, and pleading non assumpsit to the fourth. The plaintiff joined in demurrer, took out the 25s. in satisfaction as to the second count, and joined issue on the plea to the fourth count. At the trial there was a verdict for the defendant on the issue upon the fourth count, and a contingent assessment of damages for the plaintiff on the demurrers : — Held, that the defendant havirig succeeded on the only issue of fact, was en- titled to the costs of the trial, — deducting the costs which the plaintiff would have been entitled to upon a writ of inquiry, as to the first and third counts. Smith V. Ha^iley, 11 Com.. B. Rep. 678. To a count in formedon, the tenant pleaded three pleas, upon two of which issues of fact were joined, and upon the third an issue in law. All the issues, as well of law as of fact, were found for the deman- dant : — Held, that he was not entitled to the costs of COSTS, AT LAW; (E) Taxation or Costs. 217 the issues of fact, under the 4 & 5 Ann. c. 1 6. a. £, that section not applying to real actions; but that he was entitled to the costs of the demurrer, under the 3 & 4 Will. 4. c. 42. s. 34, the words being general, and comprehending all actions, Oannon v. Rimmg- ton, 12 Com. B. Rep. 514. (e) Several Defendants. Where there are several defendants vfho defend separately and obtain a verdict generally, the costs of all need not be taxed at the same time. Brueford V. Griffin, 20 Law J. Eep. (n.s.) Exch. 287; 6 Exch. Rep. 461. (/) Two Plaintiffs smug by same Attorney. Two plaintiffs brought separate' actions and reco- vered damages against the same defendant, in respect of a distinct injury sustained by each of them from the same cause. The same attorney was employed by both plaintiffs, and the briefs in each case were to a certain extent similar. The Master, in taxing the plaintiffs' costs, treated those portions of the briefs in each action whicih were similar as a brief and a draft brief, and taxed the costs accordingly. He then added together the costs of such brief and of the draft, and allowed half the aggregate amount to each plaintiff : — Held, that the taxation was wrong, it not being the duty of the Master to take into con- sideration that the same attorney was employed by two parties, unless the action had been consolidated. Muclclow V. Whitehead and Openshaw v. tTie Same, 23 Law J. Rep. (h.s.) Exch. 37; 9 Exch. Rep. 384. (g) Evidence occasioned by Negligence. A bill of exchange on which an action had been brought having been burnt by the negligence of the clerk of the plaintiffs^ attorney, — Qucere, whether plaintiff were entitled on taxation to the costs of producing two witnesses at the trial to prove the destruction of the bill for the purpose of Tendering admissible secondary evidence of its contents. Per Pollock, C.B. and Ma/rtim, B., that they were not entitled to such costs. Per Alderson, B., and Piatt, B. that they were entitled. Mathews v. Livesey, 24 Law J. Rep. (h.s.) Exch. 2S2; 11 Exch. Rep. 221. Qi) Search for Documents. Replevin; and cognizance by the defendants, as -collectors of Crown rents. At the trial much old documentary evidence was adduced by the defen- dants, and they obtained the verdict. A new trial was subsequently granted for the improper reception of one of these documents, and a fresh notice of trial was then given by the plaintiff; but before the trial he discontinued the action : — Held, that the defen- dants were entitled to the costs of the search for all the documents properly admitted at the trial, and also of tile briefs then used; and that the search, having been made by an officer of the Crown, did not alter the right to the costs of such search. Damiel v. Wilkim,, 22 Law J. Rep. (k.s.) Exch. 73; 8 Exch. Rep. 156, if) Notice of Action am,d to admit. A company's act of incorporation, 5 & 6 WUI. 4. c. 107. s. 223, requiring that they should have a notice of action, — the plaintiff, at great labour and expense, prepared and delivered a notice accom- DiGEST, 1850—1855. panied by voluminous accounts of the several pack- ages upon which the overcharges were alleged to have been made, together with the dates and other parti- culars. The Master having allowed the plaintiff lOOi. for the preparation of the notice and the accompanying accounts, and 170i. for one fair copy only, — The Court, on the plaintiff's motion, refused to order a review of the taxation, on the ground that the allowance for preparing the notice was inadequate, and that two fair copies should have been allowed : and afterwards, upon the defendants' motion, di- rected a review, on the ground that the 10<)/. was an excessive allowance, inasmuch as this was an expense necessarily incurred by the plaintiff in preparing himself to bring the action. Edwa/rds v. the Great Western Bail. Co., 12 Com. B, Rep. 419. The Master also disallowed a charge of 666i. 17s. id. for a voluminous notice to admit, pursuant to the rule of Hil. term, 2 Will. 4. r. 20, setting forth descriptions of upwards of 21,000 tickets and re- ceipts for goods carried by the company for the plaintiff, and monies paid on account thereof: — Held, that the Master had exercised a sound discre- tion in so doing, — the notice, though apparently in strict compliance with, being virtually in fraud of, the rule of court. Ibid. (j) Witnesses. [See Arbitration.] Under the directions to taxing officers of Hil. Vae. 4 Will. 4. the allowance to witnesses for travelling is to be the expenses actually paid, not exceeding li-, per mile, unless under special circumstances : — Held, that the Masters are bound to allow only what has been reasonably expended by the witnesses, not ex- ceeding Is. a mile, and that they cannot look to what has been paid by the party to the witnesses for their travelling expenses. Hunter v. Ziddell, 20 Law J. Rep. (N.s.) as. 200; 16 Q.B. Rep. 402. The simple fact of a successful party to &fi action being examined as a witness is not sufficient to en- title him to recover his expenses as a witness against the opposite party, and if it appear that his attend- ance was unnecessary or for the purpose of superin- tending the conduct of the cause, such costs will not be allowed". Bowes v. Ba/rber, 21 Law J. Rep. (n.s.) a.B. 254; 18 Q.B. Rep. 588. The plaintiff, the captain of a ship, sued the owner for wages, and could only make out his claim by his own evidence or by sending out a commission abroad. He remained in England for the purpose of being examined at the trial, at which he recovered, and the Master made him the like allowance for main- tenance from the service of the writ until the day of trial as would have been made to a third person., ^ witness, under similar circumstances :— Held, that such costs were properly allowed. Ibid. * The expenses of witnesses employed by the plain- tiff to seek for the defendant, in order to identify him as the party who had committed the wrong of which the plaintiff complains in an action on the case, cannot be allowed as costs of the cause for the plaintiff after verdict in his favour, as they are not costs incidental to the trial, but merely expenses of qualifying the witnesses to give evidence. Small v, Batho, 21 Law J. Eep. (n.s.) Q.B. 254; 1 Bail C.C. 43. The plaintiff engaged a passage to Australia in the 2P. 218 COSTS, AT LAW-COSTS, IN EQUITY. defendant's vessel, but being turned out of it, and the ship having sailed withoiit him, he sued the de- fendants for not carrying him according to their contract. The plaintiff could have had another passage in the course of a few days, but he remained until the trial of the cause, several months, and gave evidence in his own favour. A verdict was found for him : — Held, on motion to review the Master's taxation of costs, that if the plaintiif was detained hond fide for the purpose of giving evidence in the cause, and it was proper to call him as a witness at the trial, he ought to be allowed the expense of his maintenance while so remaining in this country as costs against the defendant, although he was not a seafaring man. Ansett v. Marshall, 22 Law J. Eep. (n.s.) Q.B. 118; 1 Bail C.C.147. In an action for a wrongful dismissal, the plaintiff, who was a material and necessary witness on his own behalf, and was examined at the trial, ob- tained a verdict. A rule nisi for a new trial was obtained by the defendants, which, upon argument, was afterwards discharged. The plaintiff, it appeared, was a seafaring man, and had remained in this coun- try from the commencement of the action to the time of the rule for a new trial being discharged ; and he stated in his affidavit that, during the time of his residence here he had not earned any money, but had been wholly unemployed and unable to ex- ercise his ordinary occupation of a ship's purser, and to avail himself of numerous opportunities of em- ployment in the way of his business by reason of his being necessarily detained as a material witness in the cause. The Master, on taxation, allowed the plaintiff expenses of maintenance from the com- mencement of the action down to the discharge of the rule for a new trial: — Held, that, under the peculiar circumstances of the case, expenses of main- tenance between the 6rst trial and the discharge of the rule for a new trial might be allowed as part of the costs of the rule. But that as a general rule, it was not to be considered that a witness might be de- tained at the expense of the losing party after a rule for a new trial had been obtained. Dowdell v. the Royal Australian Steam Navigation Compamy, 23 Law J. Rep. (n.s.) CI.B. 369; 3 E. & B. 902. On taxation of costs, it is a general rule to dis- allow the expenses of a witness rejected by the .Tudge at the trial, as between party and party. Galloway V. KeywoHh, 23 Law J. Eep. (n.s.) C.P. 218; 16 Com. B. Rep. 228. The same rule applies to a witness rejected by an arbitrator; and where a case on being called on for trial was referred, and a witness who attended at the place of trial and afterwards before the arbitrator on the reference, was rejected by the arbitrator, the Master was held to have rightly disallowed his ex- penses, as between party and party. Ibid. The materiality of a witness is primd facie a question for the Master, but the Court may review his decision on that point. Ibid. In an action for a proportion of the saving of coals effected by a patent boiler erected by the plaintiff according to a contract, an engineer attended at the trial and before the arbitrator, who had not seen the boilers in question, but had seen the working of similar ones. QiuBre — whether he was a material witness. Semble, per Maule, J., that he was not material as between party and party. Ibid. If a witness does not arrive at an assize town until after the cause for which he has been subpoenaed has been referred to arbitration, his expenses will not be allowed as costs in the cause. Fryer v. StvH, 24 Law J. Rep. (n.s.) C.P. 1S4; 16 Com. B. Rep. 218. If he attends at the reference his expenses will be costs of the reference and not of the cause. Ibid. The Court allowed witnesses who came from a distance their expenses of one day to come to, and of one day to return from, the assize town. Ibid. Except under special circumstances, the expenses of the attendance of witnesses, on the commission day at the assizes cannot be allowed. Sa/rvey v. Divers, 16 Com. B. Rep. 497. An attorney who, in his affidavit of increase on taxing costs, represents that he has paid money to witnesses in the cause when he has not in fact paid it (though he may have taken steps for doing so), or who, without proper ground, makes statements tend- ing to heighten the costs payable to witnesses, with intent to favour such witnesses or to oppress the op- posite party, commits an offence for which, on a timely application, he may be punished by the Court. But, where the losing party in a cause com- plained that the adverse attorney had claimed pay- ments for the production of maps by witnesses at the trial, which maps, it was said, were not in fact pro- duced, and of a counterpart, produced by a witness but not used or required ; also for money alleged to have been paid by the attorney to a witness, whereas such money was not paid till long after the affidavit of increase was sworn ; but such complaint was not made till nearly a year and a half after the taxation, the complainant's attention having been drawn to the subject recently and by accident, — Held, that it was too late, unless upon a very strong case, to bring such details before the Court as charges to be an- swered by an attorney ; and a rule to answer matters was refused. Doe d. Mence v. Hadley, 17 Q.B. Rep. 571. COSTS, IN EQUITY. (A) In qenbrai,. (B) Petition. (C) Re-hearino and Appeal. (D) Motions. (E) Case sent to a Court op Law. (F) Administration Suits. (G) Creditors' Suits. (H) Trustees and Executors. (I) Hbir-at-Law. (J) Next Friend. (K) Setting off. (L) Upon WHAT Fund chargeable. (M) Taxation of Costs. (a) Practice as to, in general. (b) What Cha/rges are allowed. (c) Solicitors' Bills. (N) Rate of — Pauper Suits. (0) Security for Costs. (A) In general. At the hearing of special cases, under the 1 3 & 1 4 Vict. c. 36, the Court has power to give directions as COSTS, IN EQUITY. 219 to costs. Jackson r. Craig, 20 Law J. Rep. (n.s.) Chanc. 204. The Court has no jurisdiction, under the 3 & 4 Vict. c. 87 (Metropolitan Improvement Act), to order the costs and expenses of making out a title to land required by the Commissioners to be paid by them, or in the case of a tenant for life, out of the purchase-money. In re Strachcm's Estate, 20 Law J. Rep. (n.s.) Chano. 511; 9 Hare, 185. The defendant having satisfied the demand for which the suit was instituted, the Court refused to allow it to be proceeded with for the costs; but upon the terms of an agreement, to which the plaintiff had consented, but which the defendant had not strictly observed, ordered the defendant to pay the costs of the plaintiff out of pocket in the suit and on this notice of motion. Tapp v. Ta/mter, 20 Law J. Rep. (w.s.) Chanc. 669. A bill was filed on the authority of Tlie London and North- Western Railway Com/pamy v. Smith, and an injunction to restrain the defendant from proceed- ing under the compensation clauses of the Lands Clauses Consolidation Act was refused, and the bill was dismissed, without costs; but on appeal, (the cause, by consent, being considered as regularly on for hearing,) the defendant had leave given him to apply to the Court as to the costs of the suit if he should, before a given day, establish a right to com- pensation. The Sutton Ha/rbour Improvement Co. V. Eitchins, 21 Law J. Rep. (n.s.) Chanc. 668; 1 De Gex, M. & G. 161; 15 Beav. 161. Where a suit is instituted on the authority of a case, and the doctrine upon which the same was founded has been since got rid of, the plaintiff is entitled to have his bill dismissed without costs. Ibid. Of the two objects of a bill, one succeeded and the other failed. The costs not being easily separ- able, a decree was made without costs on either side. BochdaXe Carnal Co. v. King, 22 Law J. Rep. (n.s.) Chanc. 604; 16 Beav. 630. A suit heard twice in this court, and twice sent to a court of law, and afterwards carried by appeal to the House of Lords, when it was remitted to this court again, with a declaration that the plaintiff had no title : upon its coming on, — Held, that the decla- ration of the House of Lords must be inserted in the decree with a stay of all further proceedings ; that the plaintiff was not liable for the costs up to the first hearing, or for the first trial at law, or for the subsequent hearing before this Court; that the plain- tiff must pay the costs of the second trial at law, and the subsequent hearing before this Court; that the plaintiff and the defendant must each pay his own costs of the appeal to the House of Lords, and of the proceedings which the plaintiff had taken in the Master's ofiice, under the decree made after the second trial at law. Wilson v. Eden, 23 Law J, Rep. (n.s.) Chanc. 105. The general costs of a suit being reserved, the costs of two disclaiming defendants were ordered to be paid by the plaintiff without prejudice to the question by whom and out of what fund they ought eventually to be borne. Jones v. Powell, 1 3 Beav. 433. Costs of suit for dissolution of a partnership, on the ground that the defendant had become a lunatic, though not so found by inquisition, ordered, after decree declaring the partnership dissolved, to be paid out of the partnership. Jones v. Welch, 1 Kay & J. 765. Although there is no rule that in every instance in which a defendant takes several grounds of de- fence, one tenable and successful, the rest doubtful or invahd, that circumstance ought to avail the plaintiff on the subject of costs, yet where, upon the evidence, the plaintiff's case failed absolutely and wholly as a case for equitable relief, but the defen- dant had in the suit endeavoured to support claims without any just foundation, and had vexatiously disputed the legal title of the plaintiff: — Held, that the bill ought to be dismissed without costs. Clowes v. Bed, 2 De Gex, M. & G. 731. A bill contained charges of fraud which were neither supported nor repelled by evidence; but in- asmuch as the costs were not increased by such charges, — Held, that the costs of the suit ought not to be affected thereby. Stanilandy. Willott, 3 Mae. & G. 664. (B) PeWMON. An unopposed petition contained statements which were immaterial to the prayer. The Court inserted in the order a direction to the taxing Master, in tax- ing the costs, to have regard to such statements. Hyder v. Coleman, 21 Law J. Rep. (n.s.) Chanc. 692. Real estate subject to several incumbrances was sold by the first incumbrancer under a power of sale in his mortgage deed, and the surplus purchase- money was paid into court under the Trustees' Re- lief Act. The second incumbrancer, whose debt was greater than the fund in court, presented a peti- tion, stating the other incumbrances, and praying for payment of the fund to himself. This petition was served on the other incumbrancers, with a notice by the solicitor of the petitioner to each incum- brancer that, if he appeared on the petition the payment of his costs out of the fund would be resisted ; — Held, that the incumbrancers so served who appeared at the hearing of the petition were not eutitled to their costs out of the fund. So- berts V. Ball, 24 Law J. Rep. (n.s.) Chanc. 471; 3 Sm. & G. 168. Proceedings were stayed as against the legal per- sonal representative. A petition having been pre- sented, professing to deal with funds standing to the general credit of the cause, he was served therewith, and with a notice not to appear : — Held, neverthe- less, that he was' entitled to his costs of appearance. Rowley v. Adams, 16 Beav. 312. (C) Re-hearinq and Appeal. Where, upon appeal, the order of the Court below was varied, and, by inadvertence, the cause was heard on further directions by the Court of Appeal, — Held, that this circumstance ought not to affect the right of the successful party to those costs which he would otherwise have been entitled to. Malcolm v. Scott, 20 Law J. Rep. (n.s.) Chanc. 17; 3 Mac. & G. 29j 2 Hall & Tw. 440. Where a Court of Appeal agrees with the main part of the relief granted in the court below, it will not depart from its rule for adjudication of the costs, excepting in a very strong and clear case. Blenkin- sopp V. BUiMnsopp, 21 Law J. Rep. (n.s.) Chanc. 401; 1 De Gex, M. & G. 496. 220 COSTS, IN EQUITY. Where the Master of the Rolls or a Vice Chan- cellor has given substantial relief against a defen- dant, with costs against him personally, it is com- petent to this Court, in affirming the decree as to rehef, to vary it as to costs, if its dissent from the decree as to costs is strong, clear and undoubting. Heynell v. Sprye, 21 Law J. Rep. (n.s.) Chanc. 633; I De Gex, M. & G. 660. When a decree is affirmed upon the general merits of the case, an objection founded on an obvious inadvertency in such decree, and which might have been taken in the court below, ought not to affect the costs of the appeal, if taken for the first time in the Appellate Court. Smith v. Pin- comie, 3 Mac. & 6. 653. (D) MOTIOHS. A party was ordered to pay the general costs of certain suits. Pending an appeal, he moved for leave to file a supplemental bill in the nature of a bill of review, and obtained leave to do so on depo- siting 501. with the Registrar, and he was ordered to pay the costs of the motion. He paid the 501, but not the costs of the motion, and filed a supple- mental bill; but the Court held that the payment of the costs of the motion was a condition annexed to the order giving leave to file the supplemental bill, and that therefore all proceedings in the supple- mental suit must be stayed until payment of them. Sprye v. ReyneU, 21 Law J. Rep. (n.s.) Chanc. 664-, 1 De Gex, M. & G. 712. Where a party is ordered to pay the general costs of a suit, and also the costs of a particular motion, and then files a bill against the party entitled to all those costs, if the latter moves to stay all proceed- ings in the new suit until the costs of the particular motion are paid, that is a waiver of any right he may have to stay proceedings until the general costs of the suit are paid, and the Court will only stay the proceedings until payment of the costs of the parti- cular motion. Ibid, (E) Case sent to a Coukt of Law. In a suit against several persons A B and G, the decree directed an issue as to G, and reserved the costs of A and B, and the" subsequent" costs of all other parties, and further directions. G was success- ful on the issue : — Held, that he was entitled to all bis costs. Bice v. Gordon, 14 Beav. 508. (F) Administration Suits. In a suit for the administration of the estate of a testator, A brought in a claim upon the estate before the chief clerk. The claim was resisted by the executors, and disallowed : — Held, that the costs of the executors incurred in resisting the claim were payable by A. Hatch v. Scarles, 23 Law J. Rep. (N.s.) Chanc. 467; 2 Sm. & G. 147. The validity of a will having been questioned in the ecclesiastical court, the will was established, but the costs of the opposing party were ordered to be paid out of the estate. A suit was afterwards insti- tuted in this court to administer the estate : Held, that the costs of the litigation in the ecclesiastical court were to rank with other charges upon the estate, and must be postponed to the payment of the costs of the suit in this court. Major v. Major, 23 Law J. Rep. (N.S.) Chanc. 718; 2 Drew. 281. A died intestate, and letters of administration of his estate were granted to B, the solicitor of the Treasury, on behalf of the Crown. Afterwards C, one of the nex^t-of-kin, obtained a decree in the ecclesiastical court, by which the letters granted to B were revoked, and letters of administration of the estate of the intestate were granted to C, who there- upon filed a claim against B for the transfer of the estate of the intestate :-^Held, upon appeal, con- firming the order below, that the Crown was not entitled to the costs of the suit. ^, 23 Law J. Rep. (n.s.)' Chanc 50 ; Kay, App. ii. A general direction in a will that costs shall be paid out of a particular fund provided for that pnr- pose, is applicable only to discharge the costs which relate to the office of executors. Lord Brougham v. Lord William Powlett, 24 Law J, Rep. (n.s.) Chanc. 233; 19 Beav. !!». Where there are several estates subject to trusts 222 COSTS, IN EQUITY. for different persons, each must bear the particular charges affecting it, notwithstanding a fund has been created for the payment of costs. Ibid. Costs incurred for a purpose necessarily applicable to the whole of the trusts contained in a will, must be borne proportionately by the several estates affect- ed by the will. Ibid. In a suit between the owners of a ship for the sale of the cargo and a division of the proceeds : — Held, the fund being deficient, that the costs of all parties must be paid out of the fund ; that the captain, from having given a notice to the dock company not to part with the cargo until the freight was paid, was properly made a party to the suit; that he was liable for the wages of seamen, &c., and having been made a party, there were sufficient grounds for his not disclaiming, and that he must be paid his costs out of the fund. Alexander v. Simtns, 24 Law J. Rep. (n.s.) Chanc. 618; 20 Beav. 123. Executors and trustees having appropriated a legacy and divided the residue : — Held, that the costs of a suit to secure the particular legacy must be paid thereout. The Qorvernessea' Senevolent Inetitution v. Husiridger, 18 Beav. 467. A stock legacy bequeathed to several in succession was appropriated by the executors and the residue paid over. In a suit between the remainderman and the executors alone, the legacy was transferred into Court, and the costs of suit were paid thereout. The tenant for life afterwards filed a claim to have the amount of costs recouped out of the residue. It was dismissed with costs. Richardson v. Kusbridger, 20 Beav. 136. A testator devised his freehold farm called W upon certain trusts, and bequeathed his leasehold farm at H upon trust for sale and payment thereout of his debts, funeral and testamentary expenses, in exone- ration of his general personal estate, and subject thereto in trust for the trustees (who were also his executors) beneficially. Therewas a general residuary gift subject only to the payment of such of the testator's debts as the proceeds of the leaseholds at H should be insufficient to pay : — Held, that the costs of the suit to determine whether certain lease- hold land was comprised in the devise of W, the bequest of H, or the gift of the residue, were pro- perly payable out of the proceeds of H. Morrdl v. Fkher, 4 De Gex & Sm. 422. (M) Taxation op Costs. (o) Practice as to, in general. Practice of the Taxing Master's office as to the tsixation of costs not requiring service, or where service is dispensed with. Jn re Harvey's Settle- ment, 10 Hare, App. Ixxv. The plaintiffs were ordered to pay to the defen- dant so much of the costs " as had been occasioned " by one object of the suit, and a decree was made with costs as to the other objects. The Taxing Master considered the suit to be for two objects, and allowed the plaintiff one-half only of the general costs common to both : — Held, that he was right. Hardy v. Hull, 17 Beav. 3oS. (6) What Changes are allowed. Where the Court had ordered in a suit that money should be raised by mortgage, and the mortgage deed was submitted to counsel on behalf of the mortgagee, the fees for settling the deed were directed to be allowed by the officer in teixing the mortgagee's costs, the mortgagee having been ordered to have his costs, charges and expenses. Nicholson V. Jeyes, 22 Law J. Rep. (n.s.) Chanc. 833; 1 Sm. & G. App. xiii. Where, on the taxation of costs between party and party, the necessity of employing three counsel on one side has been considered, and the costs of the third counsel disallowed, the Court will not interfere with the discretion of the taxing Master. The Midland Rail. Co. v. Brown, 22 Law J. Rep. (n.s.) Chanc. 1092; 10 Hare, App. xliv. According to the new practice under the 15 & 16 Vict. c. 86. s. 56, in case of sale by the Court, an abstract of title is submitted to counsel to prepare the conditions of sale. Counsel having made certain queries upon four sheets of the abstract, the vendor's solicitor charged 11. Is. for perusing the same. Sec, and 41. 6s. 8d. for a second fair copy of the abstract for the purchaser's solicitor. The taxing Master disallowed the first item, and reduced the second to 13s. 4d., which he allowed for recopying the four spoiled sheets of the abstract to render it fit to be sent to the purchaser's solicitor. On a petition to review, held, that the taxing Master was right, and that they were matters entirely within the discretion of the taxing Master. Rwmsey v. Riimsey, 21 Beav. 40. The solicitor usually charges for drawing the con- ditions of sale, though they are really drawn by counsel, and he is thereby remunerated for the trouble of answering counsel's queries. Ibid. A second fair copy of abstract is not allowed except under special circumstances, as where the notes of counsel render the copy laid before him wholly unfit to go to the purchaser. Ibid. (c) Solicitors' Bills. A trustee is not a proper party to a petition pre- sented by a cestui que trust for the delivery and taxation of bills of costs paid by a trustee. In re Mole, 22 Law J. Rep. (n.s.) Chanc. 455. (N) Rate of — Pauper Suits. The Court of Chancery having given a married lady leave to sue in formd pa/uperis, on evidence that she could not procure a next ftiend, made a decree in her favour. One of the defendants ap- pealed, but the appeal was dismissed, with costs : Held, that the appellant defendant must pay the lady herself dives costs. WeUesley v. Wellesley, The Countess of Mornvngton v. ect whereof the defendant was such surety. ■J'he plaintiif replied by setting out the deed in hcec nrba. Tlie deed contained inter alia a proviso tltat nothing therein contained should prejudice or atftct any claim, demand or remedy which the several parties thereto and creditors of the said J F tiien had or should have by virtue of any mortgage, lien, charge or other incumbrance' against any per- son who mi^ht be liable for the payment of any of the debts of the said J F in the character of a surety or otherwise; and it witnessed that in consideration of the assignment thereinbefore made, the several p;irt'es thereto and creditors of the said J F cove- named with the said J F that they would not at any time commence or prosecute any action, suit or other proceedings against the said J F for any debt thi-n due from him to them, and that in case of any such action or suit being commenced or prosecuted l)y tliem contrary to the terms of the deed, the deed might be pleaded as a general release in bar of any such action or suit. Verification : — Held, on special demurrer to the replication, that it was good, inas- much as it admitted the effect of the deed as alleged in the plea, but avoided it by the terms of the proviso. Slcreiu v. Stevens, S Exch. Eep. 30fi. (K> Proceedings under the Aekangememt Act, 7 i 8 Vict. t. 70. The proposal of a petitioning debtor under the act for facilitating arrangements between debtors and creditors (7 & 1 Vict. c. 70), to set aside a portion ot' his professional earnings for a certain time, wag :tccepted by resolutions of his creditors at their first ncharge, &c. Plea, setting out the first indenture, and alleging in bar that at the time of the marriage of Louisa with the said W S she was under twenty-one, and that she so married without the consent or approbation of the trustees or either of them, nor was any settlement made by the said W S on her previous to such marriage: — Held, upon demurrer, that the above words, "when and so soon as she his said daughter should marry as aforesaid," were to be taken as referring merely to the fact of marriage before mentioned, and that although the limitations of the rent-charge in favour of Louisa's first husband could not have taken effect, yet those in favour of her sons by him or her after-taken husband would ; that a power of appointment became vested in Mrs. Clifford, and therefore that the first avowry was valid, and the plea in bar no answer to it. Beavmont v. Squire, 21 Law J. Rep. (n.s.) a.B. 123; 17 Q.B. Rep. 905. A testator devised his Maytham Hall estate to trustees upon trust for P M for life, and after hia decease for his first son for life, and after hia de- cease for the first son of such first son in tail male; and in default of such issue, in trust for all and every other the son and sons of P M successively, for the like interests and limitations; and in default of issue of the body of P M, or in case of his not leaving any at his decease, upon trust for T M for life, and after his decease for his eldest son, T G M, for life, and after his decease for his first son in tail male; and in default of issue of the body of T G M upon trust for all and every other the son and sons of T M, for the like estates and interests. Proviso, that if P M or T M, their or either of their issue, should become entitled to the Jodrell estates, then the devised estates should go to the next person entitled under the testator's will, as if the person succeeding to the Jodrell estates were dead. T M died in the lifetime of the testator. P M entered into possession of the devised estates and suffered a recovery to the use of himself in fee. T G M succeeded to the Jodrell estates as tenant in tail in possession, and suffered a recovery to the use of himself in fee. Afterwards P M died without having had a son, having disposed of the Maytham Hall estate by will. Upon bill by the eldest son of T G M, claiming the Maytham Hall estate, — Held, that the limitations to the issue of P M subsequent to the life estate of his eldest son were void for remoteness; and that the doctrine of cy-pr^s could not be applied, as it would let in- classes of persons not intended to be provided for, and postpone classes intended to be provided for; and consequently that P M took only an estate for life. Monyp^nmy v. Dermg, 22 Law J. Rep. (N.s.) Chanc. 313; 2 De Gex, M. & G. 145; 20 Law J. Rep. (n.s.) Chanc. 153. Held, also, that the gift over to T M and his issue in default of issue of the body of P M, &c., was valid as an independent clause, such gift over accord- ing with the previous valid limitation. Ibid. The cases of Pitt v. Jaclcson and Nicholl v. Nicholl observed upon. Ibid. Though a gift over on an event, expressed as a single event, but comprising in sense two branches, will not be construed as made on two events; yet it is otherwise where the testator has expressed two alternative events, one of which maybe comprehended in the other. Ibid. Held, also, that the recovery suffered by T G M of the Jodrell estates, to the use of himself in fee. 246 DEVISE; (A) Construction of, in general. did not prevent the shifting clause as to the May- tham Hall estate taking effect; and that, conse- quently, the latter estate passed over to his son the plaintilF. Ibid. A testator devised real estate to trustees, upon trust to pay the rents to his eldest son for life, with remainder for his first son in taU. By a codicil the testator revoked the trust of the rents for life, and in lieu directed the trustees to pay the son an annuity. No mention was made in the codicil of the surplus rents: Held, affirming a decision of the Master of the Rolls, that there was no resulting trust of the surplus rents in favour of the eldest son, the heir-at- law, and also that the estate tail of his first son was accelerated. Laimson v. Lainson, 24 Law J. Rep. (N.S.) Chanc. 46; 5 De Gex, M. & G. 764; 23 Law J. Rep. (n.s.) Chanc. 170; 18 Beav. 1. (6) Condition precedent or subsequent. A testator, after charging certain fee simple pro- perty in L with an annuity, devised subject thereto, " that provided that my said son J D (his heir-at- law) shall when requested by my son D D effectually convey and assure unto him, the said D D, his heirs, and assigns for ever, free from all manner of incum- brances, all that messuage, &c. called C in the parish of T, &c., then I ^ve and devise all and singular the aforesaid messuages, &c. out of which the said annuity or rent-charge is to be issuing as aforesaid unto him, the said J D, his heirs and assigns for ever; but if the said J D shall, when re- quired as aforesaid, refuse to execute such a convey- ance unto the said D D and his heirs, then I give and devise the said messuages, &c. so made liable to the payment of the said annuity, unto my said son D D, his heirs and assigns for ever." JD continued seised of both L and C until his death, C being all the time let by him to a tenant from year to year, and at his death he devised all his property to his wife. D D never requested J D to convey C to him; but after his death D D tendered a convey- ance for execution to J D's wife, which she refused to execute: — Held, that D D could not maintain an action of ejectment for the recovery of the pro- perty in L. Doe d. Davies v. Dames, 20 Law J. Rep. (n.s.) Q-B. 408; 16 Q.B. Rep. 951. An estate was settled to such uses as W D, a feme covert, should by deed or will appoint. W D devised the estate to R D, her husband, with power to sell and dispose of the same, and to raise any sum or sums of money thereon by mortgage or otherwise as he should think proper, but with this proviso *' Provided, and these presents are upon this express condition, that such part of all and every sum and sums of money as aforesaid raised by the said R D, either by sale or mortgage, as shall be unexpended at my (his) decease shall be charged upon the houses belonging to the said R D, situate at, &c., to be dis- posed of immediately after the decease of the said R D ; that is to say, that that sum shall be paid to my four nieces, share and share aUke." And in case the estate should not be mortgaged to its full value, the testfitrix devised the reversion to her said four nieces; and in case the estate should not be sold or mortgaged by R D she devised the same to her four nieces, and their heirs as tenants in common. R D mortgaged the estate, and died without having made any charge of the mortgage-money or any part thereof upon his houses: — Held, that the condition was not a condition precedent, and that the mort- gages made by R D were valid. Waikins v. Wil- liams ; Haverd v. Davis, 21 Law J. Rep. (n.s.) Chanc. 601; 3 Mae. & G. 622. A contingent gift or interest may be operated on, like a vested interest or estate, by a condition sub- sequent, and made to cease and become void. Egerton v. Earl JBrownlow, 23 Law J. Rep. (n.s.) Chanc. 348; 4 H.L. Cas. 1 : reversing 20 Law J. Rep. (n.s.) Chanc. 645; 1 Sim. N.S. 464. The Earl of Bridgewater devised large real estates to trustees to make a settlement in accordance with the limitations contained in his will. One limitation was " to Lord Alford for and during the term of ninety-nine years, if he shall so long live," remainder to trustees during his life to preserve contingent remainders, " remainder to the use of the heirs male of his body, with remainder in default of such issue to the use of C H C, for the term of ninety-nine years, if he shall so long live," remainders to trus- tees and to the use of the heirs male of C H C similar to those mentioned in the case of Lord Alford, " subject nevertheless as to the several uses and estates so to be limited to Lord Alford and C H C and to the trustees during their respective lives, and to the heirs male of their respective bodies, to the several provisoes for the determination thereof hereinafter contained." And the testator declared that in such settlement his estates were "not to be limited successively to the use of the first and other sons of Lord Alford or of C H C in tail male, but to the heirs male of their respective bodies, in the words of this my will, it being my intention that the vesting of my estates in the heirs male of their respective bodies shall be suspended during the lives of the said Lord Alford and C H C respectively." And he provided " that if Lord Alford shall die without having acquired the title of Duke or Marquis of Bridgewater, to him and the heirs male of his body, then and in such case the use and estate hereinbefore du'ected to be limited to the heirs male of his body shall cease and be absolutely void; * * and my real estates hereinbefore devised shall thereupon go over and be enjoyed according to the subsequent uses and limitations declared and directed by this my will as if the said Lord Alford were actually dead without issue male." Lord Alford came into possession of the estates, but died vrithout having acquired .the title of Duke or Marquis of Bridgewater, leaving an heir male, the appellant in this case : — Held, reversing the decision of the Court below and against the opinions of nine out of eleven Judges, that the contingent interest thus created in favour of Lord Alford's heirs male was not affected by the proviso, which was a condition subsequent, and was void as being against public policy; and, therefore, that the eldest son of the late Lord Alford was entitled to the estates as heir male, under the limitation. Ibid. A testator devised lands, after the several deceases of F S S and M his wife, " unto all the children of the said F and M already or hereafter to be born of their bodies, whether male or female, for and during their joint lives and the life of the survivor, but all the sons to take the name and arms of J W in addition to their own name," with remainder to trustees during the lives of all the said children, to DEVISE; (A) CONSTKUCTION OP, IN GEKEEAl. 247 preserve contingent remainders, in trust, neverthe- less, to permit and suffer all the said children to receive and take the rents, issues, and profits thereof in equal shares during their lives, and from and after their several deceases " unto and equally between all their issue, male and female," and for want of such issue, over : — Held, first, that the name and arms clause was not a condition precedent; secondly, that the words " already born or hereafter to be born" included only children living at the death of the testator, to the exclusion of such as had died between the date of the will and his death; thirdly, upon the general intention of the will, that the word " issue " must be construed as a word of limitation and not of purchase, and, consequently, the words creating a tenancy in common between the issue must be rejected, and the children of F S S and M his wife took estates tail, with cross-remainders in tail. Woodhouse v. Eerrick, 24 Law J. Eep. (n.s.) Chanc. 649; 1 Kay & J. 352. (c) Period of Vesting. A testator gave all the residue of his real and per- sonal estate to trustees, upon trust to convert and invest his personal estate, and to pay the interest, income and rents to A for life, and declared that they should, as soon as conveniently might be after the decease of A, convey, pay, assign, transfer and make over the residuary real estates and the trust monies and premises unto and among all and every the child and children of A, as and when they should severally and respectively attain their ages of twenty- one years, as tenants in common, and their respec- tive heirs, executors and administrators; and, if there should be but one child, then to such child, his or her heirs, executors and administrators. A died, leaving three children, two of whom died in their infancy : — Held, that all three children took vested indefeasible interests in the real and personal estate. King v. Isaacson, 22 Law J. Rep. (k.s.) Chanc. 455 ; 1 Sm. & G. 371- A testator devised freehold property to trustees, with power to let the same till ' all his nephews and nieces attained twenty-one, and after the youngest should have attained that age he directed that his estates should be sold, and the proceeds to go equally amongst all his nephews and nieces, except two specially named : — Held, that the nephews of the testator, who died after attaining twenty -one and before the period of sale, took vested interests in the proceeds. Parker v. Sowerly, 22 Law J. Rep. (n.s.) Chanc. 942; 1 Drew. 488. The gift of an estate to T A " to become his pro- perty on attaining the age of twenty-five years," — Held, a vested interest subject to be divested by dying under that age. Attwater v. Atiwater, 23 Law J. Rep. (n.s.) Chanc. 692; 18 Beav. 330. Devise of real estate to three daughters for life, and after their decease to three grandchildren, as tenants in common in fee, and in case of either of the grandchildren dying in the lifetime of the daughters, the share of them so dying to be " trans- ferred" to the "survivors," and if only one should be living, then to him or her so surviving. The survivor of the daughters outlived the three grand- children : — Held, that the survivorship had reference to the death of the last tenant for life, and not to a survivorship between the grandchildren, that the divesting clause never took e6fect, and that on the decease of the survivor of the three daughters the heirs of the three grandchildren took as tenants in common in-^ee. Littlejohns v. Eouseliold, 21 Beav. 29. (d) Mewnmg of Words. (1) " Isme." A testator devised freehold and leasehold pro- perty to his son John, his heirs and executors, so far as the nature of the property would admit, and ^ in case of his decease without leaving issue, gave the same to his son William and his heirs. He de- vised other property to his son William and his heirs, with a similar proviso in favour of John. And in the event of the decease of both John and William without leaving issue, he gave both pro- perties to his daughter M : — Held, that the combi- nation of personalty and realty in the same gift was not sufficient to vary the settled construction of the words " dying without issue " in the case of realty, and that, therefore, John and William took estates tail in the freeholds respectively devised to them, with cross-remainders in tail in the same. Ba/mford v. Ohadwich, or Lord, 23 Law J. Rep. (n.s.) C.P. 172; 14 Com. B. Rep. 708. Devise to trustees " upon trust for the children of her niece during their lives, and after the decease of the survivor then for all and every the lawful issue, male and female, of such of the children of her niece as should be living at her decease as tenants in common, and the heirs of the body of all and every of the issue of the said children, and on the death and failure of heirs of the body of any one or more of the issue of the said children, as well the original as the accrued share of him so dying, and of whom there shall be such, shall be in trust for the survivors or survivor of them as tenants in common, and for the heirs of the body of such surviving issue " : — Held, that the rule in Shelley's case did not apply, and that the children of the testatrix's niece took estates for life only, with re- mainder to their " issue " as purchasers. Parker v. Clark, 3 Sm. & G. 161. Superadded words following "issue," or other words having no technically defined meaning, tend more strongly to shew an intention that they should take as purchasers, than when superadded to words having a technically defined meaning such as the words " heirs " or " heirs of the body." Ibid. (2) " Children." A life interest in two freehold houses was devised to E D, and " should she marry and have issue then to go to her children ; if she have no issue, then to go to F W " :— Held, that E D took an estate tail, the word " children" being used synonymously with the word "issue." Voller v. Carter, 24 Law J. Rep. (n.s.) Q.B. 56; 4 E. & B. 173. {3) " Posthumous Child." Where a testator, in contemplation of immediate death, devised his lands to his wife for life, and re- mainder in fee to his nephew, with a condition that if his wife should give birth to a posthumous child, such child should take to the exclusion of the nephew, and afterwards, in the testator's lifetime, a. child was born, — Held, that such child did not take 248 DEVISE; (A) CoNSiauoTioN or, in orisrEBAL. bv implication under the will. Doe d. BlaHston v. Haslewood, 20 Law J. Rep. (n.3.) C.P. 89; 10 Com. B. Rep. S44. Semhle — that White v. Barber cannot be sup- ported. Ibid. (4) " Survivors." iSee post, (9).'i (5) "MaUSeir." A testator, being entitled to freehold lands held in gavelkind and to other freehold lands, by his will devised all his real estate to A for life, with re- mainder to his (the testator's) then heir male and his heirs in strict tail male : — Held, that, on the death of A, the testator's then heir-at-law, and not his gavelkind heirs, became, under the will, entitled to the lands held in gavelkind. Thorp v. Owen, 23 Law J. Rep. (n.s.) Chanc. 286; 2 Sm. & G. 90. (6) " Lawful Heir." A devise to A and "his lawful heirs" creates a fee and not an estate tail. The addition " lawful " in no degree affects the word " heirs," for the qualifi- cation of being lawful is implied in the word " heirs." Mathews v. Oardiner, 17 Beav. 254. Devise to testator's daughter and her lawful heirs, but in case she should not happen to have any child, then to his nephew and his heirs : — Held, that the daughter took a fee simple with an executory devise over to the nephew. Ibid. (7) " Living at Death.'" M D devised certain estates to his nephew, Sir J E, Bart, for life, and after Sir J E's decease to his second son and his heirs male ; and in default to the third son and his heirs male, and so on, with a pro- viso that if the baronetcy should come to or descend to the second son of Sir J E, the estates should go over to the next in succession. P J, the father of Lady E, by a will made subsequently to that of M D, devised his estates to his daughter, Lady E, for life, then to her eldest son for life and his heirs, and for default, &c. to the second son of Lady E for life and to his heirs ("in case he shall not become or shall not continue seised of the real estates of M D by virtue of his will"), and to the third and every other son of Lady E subject to the like con- dition, " provided always that if it shall happen that my said daughter shall have no issue male of her body limiig at her death, or no such issue male as shall be entitled, by the true meaning of this my will, to my real estates hereby limited and settled as aforesaid, then and in either of those cases I devise all my said real estates, subject respectively as afore- said, to all the daughters (if more than one) of the body of my said daughter who shall be living at her death as tenants in common, and their heirs," &c., with cross-remainders amongst them; "and if there should be but one such daughter living at my said daughter's decease, and no issue of any other such daughter then in being, then to such only surviving daughter and her heirs." At the time of the death of Lady E there were two sons and several daughters living; both sons afterwards died without issue : — Held, that the daughters of Lady E did not take any estate under the limitations of the will of P J, for that the words " living at her death " applied to both branches of the proviso, and that the contin- gency on which the daughters were to become en- titled determined at the death of their mother. Edm v. Wilson, 4 H.L. Cas. 257. (8) "Estate." The word " estate" in a will, -wiW. primd facie pass real estate, and the burthen of proof lies on those who contend the contrary. Patterson v. Huddart, 17 Beav. 210. A testatrix, after giving pecuniary and specific legacies, and after directing her charity legacies to be paid out of her personal estate, gave and be- queathed all the rest of her estate and effects what- soever and wheresoever and aU her diamonds and other jewels to trustees, their executors and adminis- trators, upon trust to sell and divide : — Held, that the real estate passed to them. Ibid. (9) " Accruing Sha/re and LTiiereSt." Testator devised his estate at S to trustees in fee, upon trust for his daughter A for life for her sepa- rate use, and directed that at her death the trustees should stand seised of the said estate, and also " of all accruing share and interest to which his said daughter might become entitled by survivorship un- der the trusts of his will or otherwise," upon trust for the children of his said daughter and the issue of such as should be dead, their heirs and assigns, aa tenants in common ; but in default of issue of his said daughter then for such persons as she should appoint ; and in default of appointment, in trust for his son W and daughter M, or such of them as should be then living and the issue of such as should be then dead, their heirs and assigns for ever; such last- mentioned issue, nevertheless, to take only the share or shares which their deceased parents, if living, would respectively have taken. Subsequently, in the same will, the testator devised his estate called the R estate to the same trustees in fee, upon trust for his daughter M for life, for her separate use, and directed that at her death the said trustees should stand seised of the said R estate, and also "of all accruing shares, &c. &c. to which his said daughter M might become entitled," &c., upon trust for the children of his said daughter M, and the issue of such as should be dead, their heirs and assigns; and in de- fault of such issue then for such persons as she should appoint; and in default of appointment, in trust for his son W and daughter M, or such of them as should be living, or the issue of such as should be dead, their heirs and assigns for ever ; such last-mentioned issue, nevertheless, to take only the share or shares which their deceased parents, if living, would respectively have taken : — Held, that the words " accruing share and interest to which his said daughter A might be- come entitled by survivorship under the will or other- wise," did not apply to the interest which A might take in the R estate in the event of her sister M dying without isstie and without having exercised the power of appointment, although there was nothing else in the will to which the said words could apply, and that therefore upon the death of M without issue, without exercising her power of appointment, A became entitled to a moiety of the Restate in fee. Greenwood v. Sutcliffe, 23 Law J. Rep. (n.s.) C.P. 98; 14 Com. B. Eep. 226. DEVISE; (B) What Peopemy passes. 249 {10) " By way of Joiniiwe. " A testator devised to his son R T an annuity or rent-charge of 300?. issuing out of land, and by a co- dicil declared, that in case his son should marry it should be lawful for him to settle an annuity of 300i. upon the woman he might happen to marry, hy way of jointure, to be charged on the premises in like manner with the sum of 300Z. devised by the will; and in case the said E, T should so settle an annuity it should be' by way of substitution for the annuity given by the will, and that on such substitution the annuity given by the will should cease. R T having married, by a deed-poll made in exercise of the power given by his father's will, settled and appointed an annuity hy way of jomtv/re on his wife, declaring the same to be charged on the testator's estate, in like manner as the annuity of 300/. was charged by the will : — Held, that this annuity took effect during the life of R T and his wife, and was not postponed till the death of R T; the testator's intention being that in the event of the wife surviving her husband she should receive the annuity by way of jointure and in bar of dower. Jamieson v. Trevelyan, 23 Law J. Rep. (n.s.) Exch. 281 ; 10 Exch. Rep. 269. (c) Who take as Devisees. A testator devised copyhold hereditaments holden of the manor of M to W G for life, with remainder to his eldest or only son and his customary heirs for ever; provided that if W G should leave no son or issue of a son living or tn venire sa mire at. his death, then the testator devised the same estate to the daughters or only daughter of W G as tenants in common, and their customary heirs for ever; pro- vided also, that if W G should have neither son nor daughter living oienvmire samire athis death, then over. On the death of the testator, W G was ad- mitted as tenant for life. W G had seven children, one son and six daughters; one of the daughters died in childhood, and the son died shortly afterwards in childhood, and before the births of the four daugh- ters; one of the four younger daughters also died in childhood. On the death of W G his four surviving daughters were admitted each to an undivided fourth share in fee. By the custom of the manor of M the descent was to the youngest son or youngest daugh- ter; and for default of issue of such customary tenant, to the youngest brother or youngest sister, and in default of such brother and sister, to the youngest kinsman or kinswoman of the whole blood of the cus- tomary tenant in possession how far soever remote : Held, first, that the devise was to all the daughters of W G, and not merely to such as should be living at the death of the tenant for life. Secondly, that the youngest daughter of W G was entitled as heir by the custom to the shares of her deceased sisters, although bom after their deaths, the inheritance shifting in accordance with the rule at law as often as a nearer heir was born. Rider v. Wood, 24 Law J. Rep. (N.s.) Chanc. 737; 1 Kay & J. 644. If the custom is alleged to be according to the tenure of borough English, the Court will take notice of all the incidents of the custom of borough En- ghsh; but if the incidents of the custom only are alleged, the Court will not go beyond the allegations. Ibid. A particular custom as to the descent from a cus- DiGEST, 1850—1855. toraary tenant will not apply where the tenant dies before admission, but the descent must be according to the common law. Ibid. Devise by the testator to his eldest son, who had died previously to the date of the will, leaving an heir: — Held, on the construction of the 23rd section of the Wills Act, that the heir of the devisee was en- titled. Wisden v. Wisden, 2 Sm. & G. 396. Devise and bequest of real and personal estate to trustees upon trust for the testator's daughter for her life (with power of sale on her consent), and after her decease for such person or persons as his daughter should by will appoint, and in default of such ap- pointment a devise and bequest of such real and personal estate to the testator's heirs and assigns ex parte maternd, as if he had died intestate, and power (by a codicil) to sink any part of the personal estate or proceeds of the sale of the real estate in the pur- chase of an annuity to the daughter: — Held, upon a claim of the daughter against the trustees for the conveyance of the real estate to her, that the heir ex parte maternd was the heir at the death of the testator, and that the daughter was such heir ; and the Court directed a conveyance to her accordingly. Rawlinson v. Wass, 9 Hare, 673. Bequest of property (monies to be laid out in land) to L, and afterwards to his eldest lawfully begotten son, &c., remainder to others in succession, with a direction that in case of the decease of an elder son in any of the eases, then the property to go to the second son, and so on according to primogeniture; but in every case a grandson to inherit before a younger son, and before the next named in the entail or any of his sons: — Held, upon the language of the whole will, that the testator did not regard L as the stock or stirps, but look«d to the sons of L as the parties from whom the property was to devolve in succession, and that L took an estate for life only. East V. Twyford, 9 Hare, 713. The fact that whenever a limitation occurred in the will in favour of sons it was accompanied by the provision that they should take in order of primo- geniture, and that there was no such provision as to grandsons : — Held, that the sons were intended to take by particular description, and the grandsons as a class. Ibid. (B) What Property passes by the Devise. (a) In general. A testator purporting to dispose of " all the rest, residue and remainder of his estates wheresoever and whatsoever," devised to his son D H " all those two cottages or tenements, the one occupied by my son, John Hubbard, and the other occupied by my grand-daughter, together with all the appurtenances thereto belonging." At tiie date of the will and death of the testator a room, originally part of a cot- tage, (but which had several years before the making of the will been partitioned off from the rest of the building, and had a separate entrance,) was occupied by John Hubbard as a separate dwelling, together with a hovel part of the testator's property. The rest of the building from which the room so occupied by John Hubbard had been taken, was in the sepa- rate occupation of the devisee, D H. There was also a room originally part of another cottage, but from which it had been similarly partitioned off, which, at the date of the will and the death of the 2K 250 DEVISE; (B) What Propeett passes. testator, was occupied by his grand-daughter as a separate dwelling, together with an adjoining pantry. The rest of the building from which the room so occupied by the grand-daughter had been separated was in the separate occupation of W H, as a distinct dwelling. There was also at the same dates a building occupied as a separate dwelling by J. Wes- ton, which was part of the testator's property. All these five dwellings had originally cousiated of two cottages only, which had been subdivided as before stated, and were copyhold, to which the testator had prior to the date of his will, but subsequent to some of the separations before mentioned, been admitted by the description of " all those two customary or copyhold messuages, cottages or tenements." In ejectment by the heir-at-law to recover the portions of the property other than those in the actual occu- pation of John Hubbard and the grand-daughter, — Held, by Lord, Campbell, C.J., Patteson, J. and Wightman, J., that the rooms occupied by John Hubbard and the grand-daughter respectively ful- filled the terms of the devise, and that consequently these rooms only, and not the whole of the cottages, of which they had formerly been part, passed to the devisee. That the maxim faha demonstratio non nocet applies only where the words of the devise, independently of the falsa demonstratio, are sufli- cient of themselves to describe the property intended to pass; and that therefore the words " in the occu- pation of John Hubbard and of my grand-daughter," could not be rejected. Also, that the question put to a witness who had made the wiU, " what did the testator say about the two cottages?" was improper, as leading to an answer which would be inadmissible in evidence. Held, by Erie, J., that the whole of the two cottages passed under the devise to D H, and that any declaration of the testator indicating that he spoke of his copyhold property by the description of the two cottages vrith their appur- tenances, would be admissible to explain the latent ambiguity raised by the evidence in the cause, and that if the question was confined to such declaration, it might be properly asked. Doe d. Hubbard v. Hubbard, 20 Law J. Rep. (n.s.) Q.B. 61; 15 Q.B. Bep. 227. A testator devised to J S "all those my three messuages with the gardens, close of land, and all other my real estate whatsoever, situate at Little Heath, in the pariah of F, now in the occupation of myself, A and B." At the date of the will, and at the death of the testator, he was possessed of three messuages with gardens and a close of land at Little Heath, which were in the occupation of himself, A and B. He had also the reversion in a house and garden, situate at Little Heath, which was in the occupation of C, who was entitled to it for life. Besides these he had no other property in the parish of F : — Held, that the house and garden, in the occupation of C, passed under the general devise to J S. Hoe d. Oampton v. Carpenter, 20 Law J. Eep. (n.s.) Q.B. 70; 16 Q.B. Eep. 181. Words of description following a general devise, will not be construed as restrictive, where the effect of doing so would be to render the general devise inoperative, and where they may be rejected as a false demonstmtion. Ibid. A testator, after giving certain legacies and annui- ties, gave and bequeathed all the rest, residue and remainder of his estate and effects, whatsoever and wheresoever, and every part thereof, to trustees, upon trust to invest in their names in the public funds, or at interest upon government or real securities, and to pay the interest in manner therein mentioned. The will contained no power of sale. The testator^s estate consisted entirely of personalty, except two shares in a chapel, which were realty : — Held, that the real estate passed under the residuary bequest. JFullerton v. Martin, 22 Law J. Rep. (n.s.) Chanc. 893. Under a devise of estates *' in BuUen Court, Strand, and Maiden Lane, in the county of Middle- sex": — Held, that each locality must be read sepa- rately, and that the gift included the two houses in the Strand, adjoining houses in BuUen Court, the whole having been purchased together and held under one title. Gavmtlett v. Carter, 23 Law J. Rep. (N.s.) Chanc. 219; 17 Beav. 586. A B having been in possession of a dwelling-houpe from 1822, without paying any rent for the same, by his will, dated in 1837, devised the same upon trusts for sale, for the benefit of his wife for life, and after- wards for his children. A B died in 1837, and his widow took out letters of administration, with the will annexed, and entered into posaession of the house, a portion of which she let in 1850 to C D, the eldest son of A B, as a weekly tenant. The widow died in 1852, and thereupon C D claimed the house as occupant, contending that A B had not at his death a devisable interest in it: Held, that it must be taken that the widow had been in posses- sion under the will, and that C D was her tenant; and, therefore, that C D could not claim as occu- pant. Hawlcsiee v. Hawksbee, 23 Law J. Rep. (N.s.) Chanc. 521; 11 Hare, 280. Real estate mil not pass by the words " all estate, eifects, and property whatsoever and wheresoever," when the trusts and general context of the will point to personal estate only, and aiford no index to shew that real estate was present to the mind of the testator when he made his will. Coard v. Holder- ness, 24 Law J. Rep. (n.s.) Chanc. 388; 20 Beav. 147. A testatrix proceeded thus : " And in respect of my real and personal estate" I direct the tenant to be continued, " And as to the rest, residue and remainder of my estate, including monies and secu- rities for money," I direct that it shall be divided, &c : — Held, that the real estate passed. Meeds v. Wood, 19 Beav. 216. The owner of an estate, after having devised it to an infant, agreed under compulsion to sell a portion of it to a railway company. The owner having died before the completion of the purchase, without having altered his will, — Held, that his executois, and not the devisee, were entitled to the purchase- money and to the compensation for severance; and, secondly, that the railway company was bound to pay the costs of the infant devisee. In re the Man- chester and Souihport Rail. Co., 19 Beav. 365. A testator "gave" to his wife for her use and benefit " his leases, monies, goods, furniture, plate, book debts, securities for money and all other pro- perty of every description, that he might be p'ls- sessed of": — Held, that the real estate passed. He the Greenwich Hospital Irwprmemewt Act, 20 Beav. 458. DEVISE; (B) What Property passes. 251 A vendor and a purchaser being in treaty fbr the sale and purchase of an estate, the vendor wrote to his solicitor stating that the piu-chaser had agreed to purchase his estate for 60,000i., and requested him to settle an agreement on that basis for them to sign, adding that he had given to the purchaser a copy of this letter not signed as a memorandum. The pur- chaser subsequently wrote to the vendor's solicitor, inquiring when he would forward to him the draft of the agreement relative to the purchase he had con- cluded with the vendor for his estate in that county. Prior to the execution of the conveyances the pur- chaser made his will, by which he devised the subject- matter of the treaty to trustees upon certain trusts: — Held, that at the date of his will the purchaser had a devisable interest in the estate. Morgam v. Sol- ford, \ Sm. & G. 101. Semble — a purchaser who had made but not signed a contract, the terms of which are proved and signed by the vendor, has a devisable interest in the subject- matter. Ibid. (6) Trust Estaie. A testator devised his real, copyhold and lease- hold estates to trustees, their heirs, executors and administrators, upon certain trusts, and authorized his said trustees and the survivor of them, his heirs, executors and administrators, to sell all or any part of his property. The surviving trustee died, having, by his will, devised his trust estates to two persons in fee, and appointed them his executors. They en- tered into a contract for a sale of a part of the testa- tor's copyhold property : — Held, on a special case, that the point was too doubtful to force the title on the purchaser. WiUon v. Bennett, 20 Law J. Rep. (n.s.) Chanc. 279. Bequest to A and B, their executors and adminis- trators upon trust, B, the surviving trustee, by his will bequeathed his trust estates to C and D, their heir.', executors, administrators and assigns, on the trusts; and he appointed C, D and E executors of his will : — Held, that C and D took only the legal estate, and that neither C and D by themselves nor C, D and E were capable of executing the trusts. Be Burl's Estate, 1 Drew. 319. A devise to trustees of certain copyhold estate, and all other the real estate of the testatrix, and a decla- ration of the trusts of the monies to arise from the sale of such copyhold estate, and a general devise of all other her real estate to three persons as tenants in common, — Held, not to pass the legal estate of the testatrix in certain copyholds of which she was merely trustee. In re Morley's Will, 10 Hare, 293. (c) Leaseholds. A testator, by will, made in 1815, devised "all the rest, residue and remainder of his personal estate, goods and chattels whatsoever and wheresoever," subject to the payment of debts and legacies, to his brother M J D to and for his own use and benefit, and appointed him sole executor. He further devised " all and singular his manors or lordships, rectories, advowBons, messuages, lands, tenements, &e. at or near W in the county of D, and B in the county of y, and all his real estates in the said counties and elsewhere, and all his estate and interest therein, to li E D Shafto." M J D pre-deceased the testator, who, in 1841, duly made a codicil appointing another executor and ratifying and confirming his will, and died in 1844. At the time of his making the will and at his death, the testator was possessed both of freeholds and leasehold estates in the county of D : — Held, that as, under 1 Vict. u. 26. o. 24, the will must be deemed to have been made in 1844, this was a general devise of the testator's lands within 1 Vict. c. 25. s. 26, and that the leaseholds passed by it to RED Shafto, and that the prior devise of all the personal estate did not shew a contrary intention so as to prevent the operation of the enacting part of the 26th section. WiUony. Eden, 20 Law J. Rep. (N.s.) Exch. 73; 5 Exch. Rep. 752. A testator gave and devised all his freehold and copyhold messuages, farms, lands, tenements, here- ditaments and real estate situate at Market Rasen, to his wife for life, and then to his son, his heirs and assigns for ever. The testator had no property at Market Rasen except a leasehold estate held for 1,000 years : Held, that the leasehold estate passed under the above clause. Nelson v. Hopkins, 21 Law J. Rep. (n.s.) Chanc. 410. A testator having devised the residue of his per- sonal estate, whatsoever and wheresoever, to A B, devised all his manors, lands, &c. at W, in the county of Durham, and at B in the county of York, and a parcel of land purchased of M L, and all other his real estates in the counties of Durham and York, and elsewhere, and all his estate and interest therein to C and D and their heirs to certain uses : — Held, under the 1 Vict. c. 26. s. 26. that his leaseholds in Durham passed to C and D with the real, and not to A B with the personal estate. Wilson v. Eden, 16 Beav. 153. The case of Wilson v. Eden, 1 1 Beav. 237, re- versed. Ibid. ( d) Legal Estate in Mortgage. The following devise, " I leave my wife, R H, to receive all monies upon mortgages," gives the wife the legal estate in the mortgaged premises. Doe d. Guest V. Bermett, 20 Law J. Rep. (n.s.) Exch. 323; 6 Exch. Rep. 892. A devise (since the Wills Act) by mortgagee in fee of {inter alia) the residue of his real property and securities, &c., after payment of his debts, &e. to residuary devisee for her own use and benefit, held to comprise the legal estate of mortgaged property of gavelkind tenure. In re Field's Mortgage, 21 Law J. Rep. (n.s.) Chanc. 175; 9 Hare, 414. A testator, a mortgagee in fee of real estate, gave and bequeathed to A all his monies, securities for money, and all his goods, chattels, personal estate and effects whatsoever and wheresoever, to hold to A, his executors, administrators and assigns, he paying thereout all his debts : — Held, that the legal estate in the mortgaged property passed to A. In re Sing's Estate, 21 Law J. Rep. (n.s.) Chanc. 673; 5 De Gex & Sm. 644. A testator, a mortgagee infee of real estate, gave and bequeathed to A and B all and singular his household furniture, goods, plate, linen and utensils whatsoever, and all and every other his goods and chattels, stock, stock-in-trade, monies, debts and securities for money, and all and every other his personal estate and effects whatsoever and wheresoever, upon trust to get in his debts and to sell his personal estate, and hold the money arising therefrom upon the trusts therein men- 252 DEVISE; (C) What Pboperty passes. tioned : — Held, that, under these words, the legal estate in the mortgaged property passed to the trus- tees. In the matter of WaUcer't Estate, 21 Law J. Rep. (n.s.) Chanc. 674. A testator being mortgagee in fee of an estate, bequeathed to trustees " all his money in the funds and on securities," upon certain trusts declared by his will : Held, that the legal estate in the mort- gaged property did not pass under these words. Ex parte Caufky, 22 Law J. Rep. (n.s.) Chanc. 391. (e) Tithes. A testator, by his will, gave and devised " all and every my shares, parts, and proportions of and in the tithes yearly arising, growing and renewing within the parish of L, and the titheable places thereof, save and except, &c., to hold the same, with the appurtenances,** to his nephew for life, subject to the proviso that, if at any time during his life he received from or by means of any ecclesiastical living or preferment an annual income of 4002. the said devise should cease and determine, and the shares, parts and proportions of the said tithes go and be possessed in like manner by a brother of the testator for life, and " then and after the expiration thereof to the several provisions and uses herein expressed and contained of and concerning my real estate." In a subsequent part of the will the testator gave and devised '* all my real estate of what nature or kind soever and wheresoever situate, subject to the payment of my just debts, &c. in aid of my per- sonal estate as aforesaid," to several persons succes- sively in strict settlement. He further bequeathed to his wife 5002. to be paid within twelve calendar months after his decease, upon condition of her binding herself to receive SOOZ. yearly in lieu of taking possession of the hereditaments settled upon her by way of jointure; and " all the rest and resi- due of his personal estates and effects of what nature or kind soever" he gave and bequeathed to his niece. The testator made four codicils to his will. By the first three he revoked some of the legacies in the will and gave others, and altered the dispo- sition in his t\t11 in so far as to place the name of one of his Eephews before that of another, and this for all estates, real and personal, possessed by him in his own right. By the fourth codicil, after providing for the payment of certain annuities, he gave and devised all his real estates of what nature or kind soever, subject to the charge thereinafter contained, to the defendant, in strict settlement; and on failure, &c., then he gave and devised all his said real estates in such manner as in that behalf mentioned in his said will, declaring it to be his will that the devises thereinbefore made should take effect in pre- cedence to the devises of his real estates in his said will, and that every person who should become entitled in possession to his real estates by virtue of the devises thereby made should, within twelve calendar months, obtain the proper licence to use the surname of Evans, &c. : — Held, that the gift of the tithes made by the will remained unrevoked, there being nothing to shew that it was the intention of the testator to use the words " real estates " in the fourth codicil in a difterent sense from that in which they were used in the will. Williams v. Erans, 22 Law Jt Rep. (s.s.) Q.B. 241; 1 E. & B. 727. (/) Money to ie laid out on Estate. A testator devised real estate in strict settlement, and prohibited the cutting of timber thereon. He also gave a sum of stock to trustees, upon trust to apply the dividends in keeping the buildings, &c. on the estate in repair for a term of years, and to pay the surplus to the persons in possession of the estate under his will, and, at the expiration of the term, to transfer the stock to the person in possession of the estate, if a son or descendant of a son of his, otherwise to the descendants of his brothers and sisters. The estate tail was barred before the expi- ration of the term, and it was held, that the person in possession of the estate (who was a son or descendant of a son) became entitled to an imme- diate transfer of the fund. In the matter of Cohan's Trusts, 23 Law J. Rep. (n.s.) Chanc. 155; Kay, 133. {g) Chose in Action. The Wills Act (1 Vict. c. 26. ) does not enable a testator to bequeath a chose in action so as to pass the right of suing to the legatee. Bishop v. Curtis, 21 Law J. Rep. (n.s.) Q.B. 391. {hy Airea/rs of Interest. The will of a testator, who at the time of his death was in possession of some household property, which had been mortgaged to him in fee to secure 1,5002. and interest, contained the following clauses ; — " I give all my interest and claim on household property in N. belonging to the successors of the late [mortgagee], on which I have a mortgage of 1,5002.," &c. "to the plaintiff, his heirs and assigns for ever," &c. " My widow shall pay my funeral expenses and other just debts, without interfering with the legacies to my family.*' During the tes- tator's lifetime, certain repairs which had "been ordered by him had been done to the mortgaged premises, but had not been paid for by him, but were paid for by his executrix after his death. There were also at the time of his death arrears of interest due on the mortgage : — Held, that, by the will, not only the principal sum of 1,5002., but also the un- paid arrears of interest, passed to the plaintiff as legatee. That the plaintiff was not liable to repay to the executrix the sum Ive had so paid for the repairs of the mortgaged premises. That the execu- trix was not justified in refusing to give up to the plaintiff the mortgage deed until he had paid to her the amount of the arrears of interest and of the bill for the repairs; and that, assuming that she had assented to the legacy, and that the sums were paid under duress, he was entitled to recover them hai'k. Gibbon V. Gibbon, 22 Law J.Eep, (n.s.) C.P. 131; 13 Com. B. Rep. 205. (») After-acquired PropertTf. A testator who, at the time of making his will in 1840, was possessed of personal property, after giving several legacies, gave and bequeathed all the residue of his goods, chattels, stock in trade, estate, and effects, of what nature or kind soever, not before given or bequeathed, to A and B, their executors, administrators and assigns, upon trust for sale and payment of the proceeds to his wife and children. DEVISE; (C) Particular Limitatioks. 253 He subsequently acquired real estate :— Held, that under the 7 Wi'll. 4. & 1 Vict. u. 26. o. 24, which provides that every will shall be construed to speak and take effect as if it had been executed imme- diately before the death of the testator, unless a contrary intention appear by the will, the after- acquired real estate passed under the gift to A and B. 0' Toole V. Broime, 23 Law J. Eep. (U.S.) Q.B. 282 ; 3 E. & B. 572. The Wills Act does not do away with the distinc- tion between real and personal property, and (except where it is otherwise expressly enacted) it leaves the operation of words in a will the same as before it passed. Ibid. Gift, devise and bequest (since the Wills Act) to A, without words of limitation, of all the testator's estate and effects whatsoever and wheresoever, and of what nature or kind soever, to be paid, assigned or transferred to him on attaining twenty-one, and in the mean time the interest, dividends or proceeds thereof, or so much of the principal thereof as should be necessary, to be applied in the discretion of the executors for his maintenance, education and advancement. Appointment of executors and guar- dians, with power to invest the testator's estate and effects on real or personal security, to change the invtstments, to reimburse themselves out of his said estate and effects, and to give receipts. In the event of A not attaining twenty-one, gift, devise and be- quest to the executors or the survivor of them (with- out words of limitation) of all the testator's aforesaid estate and effects : — Held, on special case, that the testator's after-acquired real estate (consisting of copyhold hereditaments) passed by the general devise in his will. Stokes v. Salomons, 20 Law J. Eep. (k.s.) Chanc. 343; 9 Hare, 76. A, by his will, dated in 1825, devised all his real estates of or to which he then was, or, at the time of his death, should be seised or entitled, to trustees, to the use of his wife for life, and, after her second marriage, as to one moiety, and after her decease as to the other moiety, to the use of his children as tenants in common in fee. In October 1827 A purchased other real estate at C, and the same was conveyed to him. In the following month he con- tracted for the purchase of a freehold estate at S, and afterwards executed a codicil, reciting the pur- chase at C, and the agreement for the purchase at S, and devising the property at C to the trustees upon the trusts of the will, and directing the trustees to complete the purchase at S and to hold the pro- perty upon the trusts of the will. In December 1827, after the date of the codicil, the property at S was conveyed to A to uses to bar dower. A died in 1832; his widow married in 1835, and died in 1853. Besides the eldest son, A left three other children, who respectively attained twenty-one in 1840, 1842, and 1851. The estate at S descended to the heir-at-law; but held, upon appeal, affirming the decision below, that upon the construction of the will, A intended to pass his after-acquired real estates, and that the heir was put to his election : and in case of his electing to take under the will, he must account to the youngest child for his share of the back rents since his right accrued; but to the two elder children, from the filing of the special ■ case only. Schroder v. Schroder, 24 Law J. Eep. (n.s.) Chanc. 510. (C) PARTioniAR Limitations. (a) Legal or JEquitaUe. [See Segina v. Bwgate, title Poor, Settlement, By Estate.] (5) Trust or Beneficial Estate. A testator devised " all my estate, both real and personal, to E E, his executors, administrators, and assigns, to and for the several uses, intents and pur- poses following; that is to say," — and then, after specifying various objects of his bounty, appointed " the said E E executor of this my last will and tes- tament." The trusts of the will did not exhaust the estate ; — Held, affirming a decree of Lord Chancellor Cottenham, that E E did not become entitled, for his own benefit, to the personal estate undisposed ofj but was a trustee thereof for the widow and next-of- kin of the testator, according to the Statute of Dis- tributions. (Dawson v. ClarJa, 18 Ves. 247, com- mented on, and Lord Eldon's opinions adopted). Blkoclc V. Mapp, 3 H.L. Cas. 492. The rule in such a case is, that where there appears a " plain implication or strong presumption" that the testator, by naming an executor, meant only to give the office of executor, and not the beneficial interest, the person named shall be considered a trustee for the next-of-kin of the surplus undisposed of. Ibid. A testator made his will in these terms :■ — " I give and bequeath all my property of whatsoever descrip- tion to my wife for the maintenance of herself and our children," naming them, and making her sole executrix ; — Held, that a trust was thereby consti- tuted for the benefit of the children, and that the executrix was bound to account. In re Harris, 21 Law J. Rep. (n.s.) Exch. 92; 7 Exch. Eep. 344. A testator devised to trustees a house and pre- mises upon trust to receive the rents and pay the same to his daughter, and after her decease to apply them towards the maintenance and education of hia daughter's children then living, during their minority ; and upon the youngest living of his daughter's chil- dren attaining the age of twenty-one years, he devised as follows : — " I give and devise the said house and premises unto all the children of my said daughter, who shall be then living, in equal shares and propor- tions, share and share alike." Other houses were also devised to trustees, who had authority to lease the whole, and an estate in fee was devised to one of the daughter's children on his attaining twenty-one years : — Held, that the estate given to the trustees was restricted to the life of the daughter and the minority of all her children; that the devise over was a direct devise to the children, and not in trust for them, and that they took life estates as tenants in common in the house and premises. Doe d. Kimher v. Cafe, 21 Law J. Eep. (h.s.) Exch. 219; 7 Exch. Eep. 675. A testator possessed of lands in England and Upper Canada, by his will made in England, gave the whole to a stranger and his nephew in trust to pay certain legacies, and to pay the residue between his six brothers and sisters, and appointed them executors and trustees of his will. By a codicil made in Canada, the testator' gave his property in Canada to two persons resident there, upon trust to sell, and after payment of his debts in Canada to SJ-t DEVISE; (C) Pabtioolak Limitations. remit any surplus to his nejAew, to whom he gave the rest of his estate in the said province, or in Great Britain or elsewhere, not otherwise given by that codicil or his will, and he revoked every clause in his will variant from that codicil : — Held, that the nephew was entitled to the surplus produce of the Canadian property absolutely, and not as trustee for the purpose expressed in the will. Schofield v. Cahuac, i De Gex & Sm. 533. A testator devised all his real estates- (except the hereditaments thereinafter particularly devised), in- cluding all estates vested in him upon trust or by way of mortgage, to trustees upon certain trusts. In a subsequent part of his will he devised his farm in A in the possession of T H to T R. He had two farms in A, called respectively S and M, both of which were in the possession of T H, but at different rents. On a question being raised which of these two farms the testator intended to give to T R, — Held, that the devise must be taken to have been made to T R for his personal advantage and not upon trust; and if, therefore, it could be ascertained that one of the farms was subject to a trust, or that the testator supposed or treated it to be so, it must then be inferred that such farm was not the one in- tended to be devised, but that the other was the one referred to by the testator. Blwndell v. Gladstone, 3 Mac. & G. 6fl2. In the present case it was sufficiently established by the evidence that during the lives of the testator and his father the proceeds of the farm, S, had been regularly paid to a Roman Catholic priest, and that the testator had uniformly dealt with it in conformity with a real or supposed trust affecting it for this purpose : — Held, therefore, that he must be taken to have intended to comprise it in the general devise of trust estates, and that consequently the farm M was the one devised to T B. Ibid. (c) Joint Tenancy or Teiiaiicy in common. Testator gave all his landed estates and all allot- ments of common now inclosed or to be inclosed to his daughters. A, B, and C, " to be jointly and equally enjoyed, or divided in case of the marriage of any of them; and they, or the survivor in case of death, are by this my will fully authorized to dispose of the same by will or assignment, as they shall think proper." The testator also gave personal property " to be equally divided and shared among them," and recommended them to remain together. A, B, and C made no disposition of the real estate by deed : — Held, upon appeal, confirming the decree below, that the entirety of the devised estates passed under the will of the last surviving daughter. Cookson v. Bingham, 23 Law J. Rep. (n.s.) Chanc. 127; 3 De Gex, M. & G. 668; 17 Beav. 262. The words of the will created either a joint tenancy in fee in the three daughters, or a joint tenancy for life, with a power of disposition by deed to the three or the two survivors, and a power of disposition by will to the ultimate survivor only. Ibid. (d) Fee simple. John W, the elder, being seised in fee of certain freehold estates, by his will, after appointing M W and others trustees, and directing the payment of his debts out of his personalty, and giving certain be- quests to his wife in lieu of dower, and other direc- tions, devised as follows : — " Eleventhly, I will that my son John having attained twenty-five years of age be let into possession of all my property real and personal which remains, on this express and unalter- able condition, that neither he nor his heirs to the third generation shall have power to sell or mortgage any part of the freehold estate now in my own occupation, or in the occupation of S E and F S; but mark, if the trustees do not sell the coal, but mort- gage the estate, I empower John or his heirs to sell it, to pay off the mortgage, but not otherwise; and in like manner, I debar him and his heirs from selling or transferring those cottages with cart-house and appurtenances built on the waste now in the occupa- tion of J H, R M, H M, J W and myself, it being my desire that they should be kept in the Westerman's name. Twelfthly, if it should happen that my son John die without leaving lawful issue, it is my will that my daughter Ann have his share, subject to the same restrictions, limitations and exceptions under which he has it. Thirteenthly, now if it should please God to take away both Ann and John under age, or without leaving lawful issue, I give and bequeath to my brother Joseph Wester- man and his heirs for ever all those cottages and cart-house built on the waste, occupied by R M and others, with their appurtenances. Fourteenthly, I order all that is left to be immediately sold ;" and the will then directed certain payments " out of the monies arising from such sale." J W the elder was illegitimate, and died in 1826, having had three children, A W, J W, and E W. E W died in March 1826. A W survived her father and died in 1829, an infant and unmarried, leaving J W the younger, who had not attained the age of twenty-one, her heir-at-law. J W, the younger, survived the testator and was his heir-at-law. The said J W the younger attained the age of twenty-five in 1838, and died in April 1842, leaving two children who died infants in 1844 and 1846 respectively, and by his will he devised all his real estates to J H and E D, their heirs and assigns : — Held, first, that the devisees of J W the younger had no estate in the hereditaments devised by J W the elder; secondly, that Joseph Westerman had an estate in fee in remainder, under the 13th clause; and thirdly, that the trustees had the power of sale of the remainder in the other tenements not comprised in the 13th clause, after the death of .John. Mortimer V. Hartley, 20 Law J. Rep. (h.s.) Exch. 129; 6 Exch. Rep. 47. Ejectment to recover two undivided third parts of an estate called " Horsecroft." J P, being seised in fee of Horsecroft, before his marriage with M C, executed an indenture of settlement, in 1770, whereby it was witnessed that in consideration of an intended marriage between himself and M C, and of the con- veyance and settlement by M C of the estate, money, &c. thereinafter mentioned, and of the benefit arising to J P by the marriage, and for settling a jointure and maintenance for M C and her children, and for settUng the free estate called Horsecroft belonging to J P, he, the said J P, granted, sold, &c. to trus- tees and to their heirs, all that freehold estate and right of J P to the said estate and other the premises intended to be released by M C. It was then fur- ther witnessed that in consideration of the marriage and of the jointure, and for settling the freehold DEVISE; (C) Paeticuiar Limitatioks. 255 estate, together with the other monies, &o. J P, bargained, sold, &c. to the trustees, in trust for M C, to the use of the first son of the said J P on the body of the said M C lawfully begotten, and to the heirs male of the said son lawfully begotten. J P had four children, John P, who died unmarried and intestate, and three daughters. The two lessors of the plaintiff are the heirs- at-law of two of the daughters, and the female defendant is the other daughter. J P, in 1823, made his will as follows : — "Also I give Horsecroft, my estate that I now live in, to my son John P, a lunatic." He then gave the residue of his estate to his d-iughter, the defendant : — Held, dissentiente Piatt, £., that the deed was inoperative; and by the whole Court, that the son John P. took under the will an estate in fee in Horsecroft. Doe d. Pottow v. Pricker, 20 Law J. Rep. (n.S.) Exch. 269; 6 Exch. Rep. 510. A testator willed and bequeathed freehold and leasehold property to be divided equally among his children in manner following, that is to say, " I will and bequeath to my eldest son A 6 one-seventh share of my property, to his heirs, executors and administrators." Then followed gifts in .similar words of one-seventh to each of his other six chil- dren. "And in case any of my sons or daughters die without issue, that their share returns to my sons and daughters equally among them ; and in case any of my sons and daughters die and leaving issue, that they take their deceased parent's share, share and share alike." All the seven children of the testator survived him, and one of them after- wards died leaving an eldest son and several other children : — Held, that this latter clause did not operate either by way of executory devise, or to cut down the estate of the parents to an estate for life, but that it referred to a dying of the sons and daughters of the testator in his lifetime, and that consequently the eldest son of the deceased child took the whole of his parentis share in the freeholds as his heir-at-law and in the leaseholds as his ad- ministrator. Gee v. the Mayor, &c. of Manchesier, 21 Law J. Eep. (n.s.) a.B- 242 ; 17 QB. Rep. 737. Devise made in 1826 in these terms: " I give and devise unto my wife, Elizabeth, the lands, &c., to hold the same unto her and her assigns, for and dur- ing her natural life, and after her decease I give and devise the same to my nephew S J, his heirs and assigns for ever ; provided always and my will is, that in case it should happen that my said nephew shall depart this life before he shall have attained the age of twenty-one years, and if after he shall have attained such age of twenty-one years he shall die un- married, or, having been married, without lawful issue, then I give the same unto my brothers, T J and J J, &c., and their heirs for ever, as tenants in common : " — Held, that the testator's nephew S J did not take an estate tail, but an estate in fee simple in the lands, with an executory devise over to the testator's brothers in the event of S J dying under twenty-one, or after that age dying without leaving lawful issue at the time of his death. Doe d. John- son V. Johnson, 22 Law J. Rep. (n.s.) Exch. 90 ; 8 Exch. Rep. 81. Devise made before the passing of the 7 Will. 4. & 1 Vict. c. 26. in these terms: "I give and be- queath to my son J W all that farm or estate I bought of Mr. B of Loudon, containing about twenty acres, situate at Quinlon, in the parish of H, in the county of S, and in the occupation of myself, my son GW and W J: — Held, that J W the son took an estate in fee. Burton v. White, 22 Law J. Rep. (n.s.) Exch. 129 ; 8 Exch. Rep. 720. A testator, after giving his wife a life interest in the whole of his freehold property, devised it as follows : — I give to my grandson R P that house and garden now in the tenure of H K ; also I give to my granddaughter A P this house which I now live in ; also I give to her a ground called W; also I give to my two granddaughters S P and J P a house at T ; also I give to the said S P and J P a piece of arable land in B, all to be equally divided ; also I give to my grandson R P 600^. ; also I give to my grand- daughter A P 600i. ; also I give to ray grand- daughters S P and J P 400Z. each. In ease either of them die without issue, that portion to be divided amongst the survivors : — Held, that the grand- children took estates either in fee simple or in tail, and not merely life estates. Butt v. Thomas, 24 Law J. Rep. (n.s.) Exch. 275; 11 Exch. Rep. 235. A testator devised an estate to his daughter for life, and after her decease to all and every the chil- dren of the body of his daughter lawfully begotten (in case she should leave more than one child), their heirs and assigns for ever, as tenants in common ; but in case his daughter should have only one chik', then he devised the estate to such one child in fee ; but in case his daughter should die without leaving any issue of her body, then he devised the estate to all such children of his body as he should leave or have living at the decease of his daughter, in fee. The testator's daughter had two children, both of whom died during her life : — Held, that the two children of the testator's daughter took absolute and devisable estates in remainder under the will, and their devisees were consequently entitled. In re TooTcey's Trust. In re the Bucks Railway Co., 21 Law J. Rep. (n.s.) Chanc. 402. A testator, by his will dated in 1795, gave certain pecuniary legacies, and then gave all the residue of his effects, real and personal, to A and B, and then gave an annuity for the life of C, and then gave all his lands in the county of Kent and elsewhere, witii his personal estate, to three trustees (naming them), their heirs and assigns, in trust for the purposes above mentioned : — Held, that A and B took an equitable estate in fee in the lands in the county of Kent. Lord Torrington v. Bowwxm, 22 Law J. Rep. (n.s.) Chanc. 236. A testator gave to his wife all his three houses or tenements, gardens, hereditaments and premises, mth all the appurtenances thereto belonging, to- gether with all his household goods, &c. of every kind whatsoever for her use and benefit for life ; and after her decease he gave all the aforesaid houses, &c. and all property whatever that should be re- maining after his wife's decease unto and equally between his children : — Held, that the children took a fee simple, and not a life estate only, in the real property, under the last clause in the will. Footner V. Cooper, 23 Law J. Rep. (n.s.) Chanc. 229; 2 Drew. 7. The 29th section of the Statute of Wills has no application to cases in which the words " dying with- out issue " are combined with other words, such as " dying under twenty-one," which additional words 25G DEVISE; (C) Particular Limitatioks. upon the authority of decided eases modify their meaning. Morris v. Morris, 17 Beav. 198. A testator devised an estate in fee to his son, but if he should die under twenty-one over. By a codi- cil he limited the estate over in the event of the son dying without issue "or" under twenty-one: — -Held, that "or " must be read " and," and that the execu- tory devise overtook effect only on the happening of both events, and consequently that A on attaining twenty-one had an absolute estate in fee simple. Ibid. ■ A devise to trustees and their heirs, — Held, to confer an estate co-extensive only with the trusts they had to perform. Ward v. Burbury, 18 Beav. 190. Devise of freeholds to trustees and their heirs, upon trust to receive the rents, and pay them to E W, a feme covert, for her separate use, and after her death upon trust, to sell and divide among her children, and in default to apply the rents towards the education of J "W until he attained twenty-one; and (continued the testator) " when J Wshall so have attained twenty-one, I devise to him and his heirs all my real and personal estate": — Held, on the death of E W without issue, that J W took the legal estate in fee. Ibid. Devise of "my property in houses, &c. at G," Held, (independently of the Wills Act) to pass the fee. BentUy v. Oldfield, 19 Beav. 225. A testator, in the first instance (as was held), de- vised freeholds to his three daughters equally in fee; and he further willed the several shares of his three daughters, as before mentioned, to have the interest for their own use during their natural lives, and after- wards devised equally among their children, and for want of children to go to their husbands, if living: Held, that the daughters took an estate for life, and in default of children their husbands, if living, took the fee. Ibid. Devise to A for life ; remainder to all and every the children of her body, their heirs and assigns, as tenants in common ; but in case A should die with- out leaving any issue of her body, then over. A had two children, both of whom died before her; one died leaving a child who survived A ; the other died without issue : — Held, that the word leaviny meant hamng, and that the two children of A took vested interests as tenants in common in fee. Ex parte Hooper, 1 Drew. 264. Devise by the testator to his three daughters of real estate, with the appurtenances, to hold the same in joint tenancy for their own sole use and benefit in succession, and not subject to the debts or controul of their husbands, the same not to be sold or dis- posed of, but held in succession by his three daugh- ters, with right of survivorship: — Held, that the daughters took as joint tenants in fee. Wlsden v. Wisden, 2 Sm. & G. 396. A testator by his will dated in 1819 devised his freehold estate as follows : " To my daughter Hen- rietta I bequeath the house I live in, being No. 11," &c., " to my daughter Martha I bequeath my house Ko. 10," &c., "but it is my will that the same be placed in trust, and that they shall only receive the rent during their life. In case of Henrietta's death without leaving behind her more than one child, then the said house No. 11 shall revert to my son David, son John, and daughter Mariha in equal shares; but if she leaves more than one (be it one, two, or more) they shall all share alike the said property left to their mother; but suppose that none of them live to twenty-one years of age, the said property shall revert to David, John and Martha as before men- tioned." Henrietta survived the testator, and died leaving two children, of whom one lived to attain the age of twenty-one years, and the other died under that age : — Held, that the two children of Henrietta took an estate in fee simple in possession in the house No. 11. Burhe v. Annk, 11 Hare, 232. (e) Estate Tail. A testator devised estates to trustees and their heirs, to the use of C E for life, to and for her sole and separate use, and independent of any husband whom she might marry, and her receipt (notwith- standing her coverture) to be a good discliarge for the rents, &c. thereof, with remainder to the same trustees to preserve contingent remainders, wjth re- mainder " to the use of the heirs male of the body of C E lawfully to be begotten who shall live to attain the age of twenty-one years, and to his heirs and assigns for ever, but in default of such heirs male, or there being such he or they should die before he or either of them should attain the age of twenty-one years without lawful issue," then to the use of M E for life, precisely in the same form, and with exactly similar remainders: Held, that if the trustees took the legal estate at all, they took it through the devise to C E and the heirs male of her body, in order to protect the interests of M E. Toller v. Altwood, 20 Law J. Hep. (n.s.) Q.B. 40- IS Q.B. Hep. 929. Held, also, that the words " heirs male of the body of C E " must have their technical meaning, and that the words of description " who shall live to attain the age of twenty-one years" must be rejected as inconsistent with the general intention of the testator, and that consequently C E took an estate in tail male. Ibid. Formedon in the descender. The count stated that A, being seised in fee of certain lands, devised them to his son B, the father of the demandant, and the heirs of B's body; that B died within twenty years of suing out the writ, leaving the demandant his heir. Pleas, that A did not devise modo etformd, and that the right, title and cause of action did not first descend and accrue within twenty years before suing out the writ. Issue was joined on these plea«. A third plea stated that more than twenty years before the suit, to wit, in January 1798, B discon- tinued the possession of the tenements and the receipt of profits therefrom. Replication, that in January 1738 B enfeoffed R in fee of the tenements and never afterwards was possessed of the tenements or received the profits. Demurrer. A, by his will, devised real and personal property to his executors and their heirs, to sell by auction to pay debts, &c., and stated that in case it should happen that upon sale of this property the same should be insufficient for the payment of his debts, then he gave and de- vised all his other lands to the same executors and their heirs, to be by them sold until the debts should be paid, and the residue he directed to be divided equally among all his children ; and he added a proviso, that in case the first devised property should DEVISE; (C) Partiotilak Limmatioks. 257 be Bufficient to pay all his debts as aforesaid, then he gave and devised to his son B his dwelling-house, &c for his natural life, and after his death to the issue of his body lawfully begotten, if more than one, equally among them. A died in 1 797. B took possession of the house, &c., and in 1798 enfeoffed R in fee of the premises and died in April 1831. The writ of formedon was sued out in March 1853 : — Held, that the action was not barred by the statute 3 & 4 Will. 4. c. 27, as the time of limitation ran only from the death of B and not from 1798, when B ceased to receive the profits, as B's right to enter and receive them had not been barred by a neglect to enter, but because he could not enter against his his own feoifment. Rimmgtonv. Oamnon (in error), 22 Law J. Rep. (n.s.) C.P. 153; 12Com.B. Rep. 18. Held, further, that the limitation in the will to B for life and the issue of his body, gave B an estate tail; that that limitation was not too remote to be valid, though it depended upon the contingency whether the firstly-devised property was sufficient, and ascertained by a sale to be sufficient, to pay the testator's debts, as it was to be presumed that such sale would be made and sufficiency or insufficiency ascertained within a year after the testator's death. Ibid. Held, also, that as the devise to B was dependent on the condition precedent of the sufficiency of the firstly-devised property to pay the debts, the evidence did not support the allegation in the count of an absolute devise to B and .the heirs of his body. Ibid. A testator, by his will, dated in 1789, devised real estate to his wife and granddaughter, during their natural lives; and in case his wife should marry again, he gave the whole of the said real estate to her during her life; and if his granddaughter should die leaving issue, then the testator gave unto her said issue, after the death of his wife and sister, all his freehold and copyhold lands, to be distributed be- tween them, share and share alike, as three gentle- men, learned in the law, or the major part of them, should affix the same; but in case his granddaughter should die leaving no issue, and after the death of his wife, the testator gave the same over. The testator's widow married again, and the grand- daughter survived her and the sister of the testator : — Held, that the granddaughter took an estate tail. Kavanagh v. Morlcmd, 23 Law J. Rep.(N.s.)Chanc. 41 ; Kay, 16. A testatrix devised all her real estate to trustees upon trust for three persons for life, with remainder to their issue in tail, "and for default of such issue then upon trust for the right heirs of her grand- father, deceased, by Mary his second wife, also de- ceased, for ever" : Held, that the ultimate limita- tion created an estate in tail special and not a fee simple. Wright v. Vernon, 23 Law J. Rep. (n.s.) Chanc. 881; 2 Drew. 439. A testator devised his real estates to G H A, his eldest son, for ninety-nine years, in case he should so long live, and subject thereto to trustees during the life of his son to support contingent remainders; and from and after the determination of the said estates to the heirs of the body of his said son, with divers remainders over. By a codicil, after con- firming his will, he devised all his freehold and copy- hold estates unto four trustees, in trust to convey unto the trustees of his marriage settlement so much Digest, 1850—1855. of the said estates as, with the provision in the said settlement, would make up his wife's jointure to ] ,200i. a year, and in trust for the payment of debts. G H A executed a disentailing deed, and died, leaving a daughter, and having by his will devised the estates to H A : — Held, upon appeal, confirming the decision below, that the rule in Shelley's case did not apply as to the limitations of the will, and that the only effect of the codicil was to give the legal estate to the trustees therein named, in trust, after fulfilling the limited purposes of their trust, to transfer the estate in the same course of enjoyment as it would have gone in under the will in the absence of the codicil; and that the plaintiff, as heir of the daughter of G H A, was entitled as tenant in tail. Ooape v. Arnold and Arrwld v. Coape, 24 Law J. Rep. (n.s.) Chanc. 673; 4 De Gex, M. & G. 574: affirming 2 Sm. & G. 311. Devise of real estates upon trust to pay the rents and profits unto or to the use of R L and his assigns for his life, and from and after his decease unto the first and other sons of R L, and in default of such issue in trust for the first and other daughters of R L, and in default of such issue in trust to pay the rents and profits as therein mentioned, and an ulti- mate remainder over: — Held, that R L did not take an estate tail in the devised premises, nor an estate for life with remainder to his first and other sons successively in tail, nor an estate' for life with re- mainder to his first son in fee. Bridget v. Eamaey, 10 Hare, 320. (/) Estate for Life. Where an estate for life is given by clear words, the mere imposition of a charge on the tenant for life will not have the effect of enlarging the estate. Ea^ V. Twyford, 4 H.L. Cas. 517. A testator, by a will written on the pages of a small note-book, divided his property into three classes, marked No. 1, No. 2, No. 3. He devised these classes of property to persons designated by letters. The order of " succession" was marked in one page (54) of his will. This page contained the words " The eldest and other sons to inherit before the next letter." The persons designated by the letters were all named in a card, which was referred to in the will, and which card was with the will ad- mitted to probate. K was the testator's wife, to whom was given an estate for life in all the classes of the property. The will required implicit obedience to certain orders of the testator on the part of "the in- dividual first to inherit after K ;"' and if not, "the property aforesaid set down and particularized in No. 1 to go to M, if not to L, and afterwards to his eldest lawfully begotten son, &c." There were similar expressions with regard to N and 0. The card shewed that these two letters were intended for the eldest sons of two nephews, but who were then unborn. The property No. 1 consisted of very large sums in stock, which the executors of the will were to invest in the purchase of real estate; and in page 54 L was named as the person to take No. 1 after the life estate of K. A grandson was " to inherit before the nSxt-named in the entail or any one of his sons." Class No. 2 consisted of a small estate in land, and by page 54, was, as to that, to succeed to K, and the estate there given to O was expressly a life estate, with remainder to his eldest and other sons in tail 2L 2o8 DEVISE; (C) Particolar Limitatioits. male; and it was there also said "a grandson legiti- mate shall inherit before a younger son." Class No. 3 consisted of certain estates in Suffolk; the " succession" there was (page 54) " first to K and then to M," and the devise (page i7) was " first to K and then to M, and afterwards to his eldest legiti- mate son, and then to his other legitimate sons in order of primogeniture, provided, but not else, the eldest have no issue male; if he have, it will go to him, and so on to the other sons in like manner. After the decease of K, I repeat, I bequeath all the property aforesaid to M and his heirs male, in the manner aforesaid, as in the case of L, &c., at page 2, and I mean and order that this mode shall prevail throughout the whole entail, under precisely the same injunctions ;" — Held that, reading all the parts of the will together, L only took a life estate in No. 1, with remainder to his eldest and other sons in tail male. Ibid. Held, also, that this was not an executory trust. Ibid. The Court of Exchequer, on an information filed by the "Attorney General for legacy duty, had held that L took an estate tail. On a bill to carry into effect the trusts of the will, the Vice Chancellor held that L took a life estate only. The Vice Chancel- lor's decision was affirmed ; but as the testator had himself created the difficulty, the costs were ordered to come out of the estate. Ibid. Meaning of words "son," and "grandson," and " inherit." Ibid. A testator, before the passing of the Wills Act, gave "all that his copyhold estate, called M," to hia niece Sally, the wife of H T for life, charged with an annuity to his brother ; and after the decease of his said niece, he gave and devised " the same copy- Jiold hereditaments" equally between all her children, share and share alike; but if his said niece should die in the lifetime of her said husband, without leaving any children, then he gave " all and singular his said copyhold hereditaments" to his nephew J S in fee. By a subsequent clause, he devised " all and every his other copyhold messuages," &c. to his niece Ann in fee, charged with an annuity to his wife; and there was a residuary devise of all his real estates not otherwise disposed of to the plaintiff in fee. H T died in the hfetime of Sally, who had no issue by H T, whom she survived, and married again and had issue and survived her second husband ; consequently, the gift over to J S failed : — Held, that under the devise to the children of Sally, an estate for life only piissed in the copyhold called M, and that the remain- der upon that estate passed under the residuary devise to the plaintiff, and not to Ann. VicJc v. Sueter, 23 Law J. Rep. (n.s.) Q.B. 212; 3 E. & B. 219. A testator devised real property to A for life, and after his decease to the first son of the body of A for life, and after the decease of the last-mentioned first son of A, to the first son of the body of such last- mentioned son, with remainder to the second, third and all other sons of the body of such last-mentioned son for ever, the elder being always preferred to the younger; and in default of £ill such issue, the estate to go and descend to the testator's own right heirs for ever. At the date of the will A had two sons and two daughters living : — Held, that A's first son took only an estate for life, with remainder in tail to his first and other sons, with an ultimate reversion to the right heirs of the testator. Kershaw v. Kershaw, 23 Law J. Rep. (h.s.) Q.B. 353; 3 E. & B. 845. A testator devised and bequeathed to his wife, during her life, the interest or rent of his house, to- gether with all his other goods and effects whatso- ever; and after the death of his wife he gave and bequeathed the said house, together with all his other goods and effects whatsoever, to his four children, to be equally divided between them : — Held, that the children took an estate for life only in the house. Harding v. Boberts, 24 Law J. Rep. (n.s.) Exch. 194; 10 Exch. Rep. 819. A gift by will (before the Wills Act) to two per' sons whom the testatrix constituted her sole execu- tors, of all and singular her lands, messuages, and tenements, with all her goods and chattels by them freely to be possessed and enjoyed, the executors to pay a legatee the sum of 20i, passed only a life in- terest in the real estate of the testatrix. Bromitt v. Moor, 22 Law J. Rep. (h.s.) Chanc. 129; 9 Hare, 374. A testator directed that two of his sons, if they desired it, should have the joint use and occupation of his marsh lands for their lives : this was accom- panied by directions that the stock and crops should be valued to and taken by them, and that the lands should be forfeited in the event of improper tillage; but was unaccompanied by any gift over in case they did not use or occupy the lands; — Held, that the two sons took estates for life; that they were not obliged personally to use or occupy the lands, and that no condition to that effect was either expressed or implied. Rabbeth v. Squire, 24 Law J. Rep. (n.s.) Chanc. 203; 19 Beav. 70. A devise to S M for life, remainder to the child and children of her body and the heirs of their re- spective bodies, and in default of such issue, Sec- Held, that the children of S M took estates for life, as joint tenants, with several inheritances in tail. In re (he Tiverton Market Act, ex parte Tanner, 24 Law J. Rep. (n.s.) Chanc. 6S7; 20 Beav. 374. A testator seised of property in fee devised it (by description) with all outbuildings, &c., according to the tenour of the testator's deeds, without any super- added words of inheritance. The Statute of Wills being inapplicable, — Held, that the devisees took life estates only. Sturgis v. Dunn, 19 Beav. 135. There were two devises of the same property to children in two different events: — Held, that the terms of the second devise could not by construction be introduced into the first so as to extend the estate thereby given. Ibid. A testator devised freeholds in terms which gave life estates to his children equally, and such chil- dren of such children as might be dead, who were to take their parents' share only : — Held, that the life estate of the children were not enlarged by the substituted gift. Ibid. Bequest of leaseholds to A for life, and after her decease to the issue of her body; and in case of her dying leaving no issue, then over: Held, by the Master of the Rolls, on the authority of /« re Wynch's Trust, that A took an estate for life only. Goldney V. CraU, 19 Beav. 338. (g) Vested or Contingent Estate. On the 8th of February 1788 Richard Bancks, by his will, devised five houses, of which he was seised in DEVISE; (C) PAaTicuLAR Limitations. 259 fee, to Elizabeth his wife, for life, and after her death he devised two of these houses to his daughter Ellen, the wife of Gr. Fleming, for her separate use, with power to dispose of the same at her death amongst her children; and after the death of his wife EUza- beth he devised the other three houses to Ellen Bancks, for her sole use, with power to dispose of the same to and among her lawful issue her surviving, and their heirs for ever, as she should think fit. His will further provided, that if either Ellen Fleming or Ellen Bancks should die without issue living at the time of their respective deaths, the survivor should have that which was thereinbefore given to the de- ceased party for her own use, and if both should die without issue them surviving, the testator gave all the property in equal shares amongst his brothers, sister and others. The testator died in 1788, and Elizabeth Bancks, his wife, entered into possession of the five dwelling-houses, and enjoyed the same up to her. death in 1810. In 1798, Ellen Fleming in- termarried with John OUerton, the defendant, and died in 1848, without issue. On the death of Eliza- beth Bancks, the plaintiff and the defendant, in right of his wife, respectively entered into possession of their respective shares of the said hereditaments. By indenture dated the 12th of May 1843, and made be- tween the defendant and his wife Ellen of the first part, J C of the second part, John Lord and William Ackerley of the third part, after reciting the facts, and that the said Ellen OUerton was the testator's heiress-at-law, and that the said John OUerton and Ellen his wife were indebted to the said John Lord and William Ackerley for money lent, it was wit- nessed that the said John Olleiton and Ellen his wife, in consideration of the money so lent, and of 10s. paid to them by J C, the said Ellen OUerton joining therein, as well to release and convey the said here- ditaments firstly and secondly thereinafter described, as to release and extinguish every right and title to dower which she might have with or out of the said hereditaments and premises thirdly thereinafter de- scribed, and to the intent that the then reciting in- denture might operate and take effect by force or under the act for rendering a release as effectual for the conveyance of freehold estates as a lease and re- lease by the same parties, did grant, bargain and sell, release and convey to the said J C and his heirs firstly, those two dwelling-houses and premises by the said will devised to the said Ellen Fleming, now OUerton; and, secondly, all those three dwelling- houses and premises by the said will devised to Ellen Bancks, and all other lands, &c. which the said EUen OUerton was entitled to as heiress-at-law of the said testator, subject as to the premises secondly described, to the Ufe estate of the said Ellen Bancks, to the said J C and his heirs, to the use of the said John Lord and William Ackerley, for 1,000 years upon certain- trusts, and after that term to such uses as John OUer- ton and Ellen his wife should by deed in writing ap- point, and in default of any such appointment to the use of the survivor of them as he or she might ap- point by deed or direct by will, and in the mean time to the use of John OUerton and Ellen his wife during their joint lives, and the survivor of them, their heirs and assigns; and it was in the said indenture declared that the said term of 1,000 years was so limited to the said John Lord and William Ackerley for the purpose of securing the repayment of the said loan with interest. Ellen OUerton died without having joined with her husband in making any appointment under this settlement : — Held, that the circumstance of the remainder devolving on Ellen OUerton as heiress-at-law, at the same time that her life estate took effect under the will by the death of the testator, did not operate as a merger of the life estate so as to bar the contingent remainder. But held also, that the above deed, if duly executed by Ellen OUerton, so as to pass her interest in possession and reversion, ope- rated to destroy the contingent remainder; for the union of the two estates was necessary to raise the uses limited by the deed, and the life estate was therefore merged in the reversion in fee. Bomcks v. OlleHon, 23 Law J. Rep. (n.s.) Exch. 285; 10 Exch. Rep. 168. Testator devised an estate to his grandson M H for life, with remainder to all the children, both sons and daughters of M H, if more than one, as tenants in common, and their heirs for ever, and for default of such issue to all the children both sons and daugh- ters of the brothers and sister of the testator, as ten- ants in common, and their heirs for ever. The will then contained a precisely similar limitation of an- other estate to testator's only other grandson, W H H. Then followed a proviso, " provided always and my will and mind expressly is, that in case either of my said grandsons shall happen to die without issue of their bodies lawfully begotten, my said trustees shall stand seised of the same hereditaments and estates hereinbefore devised for the benefit of such grandson so dying, to, for, and upon the like uses and trusts as they shall stand seised of the hereditaments and estates before devised for the benefit of such survi- vor." M H, on the death of the testator, took pos- session of the estates devised to him, and afterwards had issue one only child, E H H, who died an infant in the lifetime of its father. M H died leaving chil- dren of the brothers and sister of the testator still Uving. W H H died without having had children in the lifetime of M H. The principal defendant was the heir-at-law of the infant E H H : — Held, that, under the first limitation in the will, M H took a life estate with a contingent remainder in fee to his child and children unborn, which vested in such child E H H immediately on her birth ; that the words in that limitation " for default of such issue" were to be construed as meaning " for default of such children of M H" ; that the words in the proviso " in case either of my grandsons shall happen to die without issue of their bodies lawfully begotten," did not vary the effect of the previous limitation as to the meaning of the expression " such issue": but that the whole ob- ject and effect of the proviso was to interpose a con- tingent remainder to each grandson and his children between the life estate of the other, and the devise over to the nephews and nieces of the testator. Fos- ter V. Rapes (in error), 24 Law J. Rep. (n.s.) Q.B. 161 ; 4 E. & B. 717 : affirming the judgment below, 22 Law J. Rep. (n.s.) CI.B. 329; 2 E. & B. 27. A testatrix devised to T for life, and at his death to his second son on his attaining twenty-one, but in default of there being a second son of T, to the second son of C on attaining twenty-one. After her death, T had sons, the second of whom, G, died before be attained twenty-one years. T died intestate : — Held, that G did not take in fee with an executory devise over, but took a contingent remainder, and that the 260 DEVISE; (C) Pabticdlab Limitations. contingency of G's attaining twenty-one years not having happened at the death of T, the limitation over failed, and the heir-at-law was entitled. Con- firming Fesiing v. Allen and Doe d. Hew v. Lucraft Alexander v. Alexander, 24 Law J. Rep. (s.s.) C.P. 150; 16 Com. B. Rep. 59. A testatrix devised a farm in trust for E K for life, and " declared that if E K should marry" then she gave the farm to J W for life. &c. E K did not marry : Held, that the gift to J W, &c. was vested independent of E K's marrying again. Meeds v. Wood, 19 Beav. 215. Estates H and S were devised to trustees upon trust for R W and the heirs of his body, but in case he should die under the age of twenty-one and without issue, as to estate H for A W and the heirs of her body, but in case she should die under the age of twenty-one and without issue, upon such and the same trusts as were thereinafter declared concerning estate S; and if R W should die under the age of twenty-one and without issue, as to estate S for the testator's son and daughter-in-law for their lives " and subject to the trusts hereinbefore thereof declared." Estate S was ultimately devised to other persons, R W and A W both attained twenty-one, but died without issue : — Held, approving the decision in Doe d. Jes~ sop, 12 East, 288, as opposed to that in Brownaword V. Edwards, 2 Ves. 242, that the double contingency not having happened there was an intestacy as to estate H, but that the ultimate devise as to estate S took eifect. Pearson v. RvMer, 3 De Gex, M. & G. 398. (A) Absohiie Gift of Personalty. A testatrix, by a will made before 1838, devised a house and lands to her granddaughter M A, and bequeathed to her 200Z. due on a bond; and the will then proceeded: "but in the event of M A dying without having any lawful issue" the house and lands, and the said 200/., to revert to other grandchildren: — Held, that M A took an estate tail and not an estate for life in the realty, and the absolute property in the personaltv. Cole v. GohU, 22 Law J. Rep. (N.S.) C.P. 148; 13 Com. B. Rep. 445. (i) Estate per autre vie. M, being seised in fee, devised to her daughter E, to hold to E, " her heirs, executors, adminstrators and assignsjfor and during the natural lives of ' E, E's hus- band, and their daughter, and of the survivor; and, in case the three "should all depart this life before the ex- piration of thirty-one years, to be computed from the day of my decease, then to hold " " unto the execu- tors, administrators and assigns" of E, " for and dur- ing the said term of thirty-one years, to be computed from the day of my decease." " And I do hereby give, devise and bequeath the reversion of the afore- said messuages," &c. " to my grandson" W O S, second son of J T S, " and to the heirs male of the said" WO S, remainder tii the third, fourth, &o. sons of J T S successively in tail male, and, in default of such issue, to the eldest son of J T S in fee : — Held, that E having died before the other two lives expired, her heir took the land, as special occupant. Carpen- ter V. Dunsmure, 3 E. & B. 918. (j) Executory Devise. Devise to E for life, contingent remainder to her unborn children, as tenants in common in fee ; devise over to her brother and sisters for life, in equal shares, with contingent remainders in fee to their respective children as to such shares. Then followed a limita- tion, " and further, in case of the death of my said son or of either of my said two daughters without leav- ing a child, if a son that shall live to attain the age of twenty-three years, or if a daughter who shall live to attain the age of twenty-one years," gift over in favour of the children of the surviving brother and sisters. E died without children. Afterwards A, one of her sisters, died without having had issue; and on the death of the latter, the lessor of the plaintiff, a child of the brother of E, claimed a share of the pro- perty of E which had come to A under the limitation over : — Held, that the lessor of the plaintiff was not entitled to recover, as the event on which the limita- tion over was to depend was too remote; that, although the event of A's not leaving a child who should live to attain twenty-three included in it the event which had happened, of A^s not having any child at all, the Court could not separate the compound event into two, and hold the limitation good as a limitation over in case of A's not having any children. Challis v. Doe d. Evers (in error), 21 Law J. Rep. (n.s.) a.B. 227; 18 a.B. Rep. 231: reversing Doe d. Evers v. Challis, 20 Law J. Rep. (n.s.) Q,.G. 113. Atestatorgave the residue of his property, both real and personal, to his son Matthew, his heirs, executors, administrators and assigns, with a proviso that in case his son Matthew should die without leaving any lawful issue of his body, such part of his residuary estate as might be in the nature of freehold should, at his death, be divided into equal parts, one half part whereof he gave to his son Charles and the other half to his daughter Frances: — Held, that the testator's son Matthew took an estate in fee in the freeholds, with an executory devise over to take effect in the event of his dying without issue living at the time of his death. Ex parte Davies, in re the Wilts, So/merset and Weymouth Rail. Co., 21 Law J. Rep. (h.s.) Chanc. 135; 2 Sim. N.S. 114. A testator, by his will, after giving certain legacies and annuities, devised and bequeathed real and per- sonal estate to his wife and his son, J V, during their lives, and after the death of his wife to his said son, J V, and to his heirs and assigns for ever ; and from and after the decease of his, the testator's, wife and of his said son, J V, without issue, he gave and de- vised all the residue of his worldly property, both real and personal, to be equally divided amongst the then surviving legatees, share and share alike: — Held, that J V took a fee simple, subject to an executory devise over in case he should die without issue in the lifetime of any of the legatees. Green- wood V. Verdmi, 24 Law J. Rep. (n.s.) Chanc. 65: 1 Kay & J. 74. A testator, by his will, devised real estate to W S, and to his heirs and assigns for ever, but in case the said W S should die without child or children law- fully begotten, he devised the same to the children of II G, their heirs and assigns for ever, on the de- cease of W S : — Held, that this was a devise in fee to W S, with an executory devise over in case he should die without child or children. Parlcer v. fSirlcs, 24 Law J. Rtp. (n.s.) Chanc. 117; 1 Kay & J. 15a. DEVISE; (E) Charges. 261 (D) Right of Pre-emption. A testator gave to his son the option of purchas- ing an estate at what to his trustees should seem " a iair and reasonable value." The trustees had a valuation made, which amounted to 1,5002. The valuation made at the instance of the parties inter- ested in the produce exceeded that by one-third : — Held, that the trustees having fixed what they considered a "fair and reasonable value," having authority to do so, it was incumbent on the plaintiff to shew that it was fraudulent in order to prevent the son's purchasing at 1,500Z. Edmonds v. Millett, 20 Beav. 54. (E) Charges. [See Sast v. Twyford, ante, (C) (/).] E H, by will, after charging all his real and per- sonal estate with the payment of his debts, funeral and testamentary expenses, and of a certain legacy, gave and devised the rents and profits of all his mes- suages, tenements, farms and lands, except his Bala houses, to A H his wife; and by the same will he gave her the whole of his personal estate, and ap- pointed her sole executrix: — Held, that the Bala houses passed to the heir-at-law of E H, subject in equity to the charge of debts, and that A H had no power to dispose of them for the purpose of pay- ing the debts. Doe d. Jones v. Hughes, 20 Law j. Bep. (n.8.) Excb. Hi; 6 Exch. Rep. 223. A testator, by his will, gave to his daughter A, so long as she should continue unmarried, all his copy- hold estates situate at P, and also all his live and dead stock, furniture, monies and securities for money, after payment of his just debts, funeral ex- penses, and the costs of proving his will ; and de- clared that, if A should be married after his death, or die unmarried, the whole of the estates, with the live and dead stock, furniture and goods whatsoever, should be sold, and the proceeds arising therefrom be divided between B, C and D : — Held, that the testator had charged his copyhold estates with the payment of his debts. Moores v. Whittle, 22 Law J.Rep. (h.s.) Chanc. 207. A testator devised his real estates to a devisee in fee, charged with certain annuities or annual rent- charges to two annuitants ; — Held, on special case, that the annuitants took the annuities for life ; that the 28th section of the Wills Act (1 Vict. c. 26.) only applies to estates vested in, or in the power of, the testator, and not to estates or interests created de novo by his will ; and that a purchaser could not maintain an objection to the vendor's title, or refuse to execute the contract for purchase, upon the ground that the annuities were given in fee and not for lives. Nicholla v. Hcmhes, 22 Law J. Rep. (h.s.) Chanc. 265; 10 Hare, 342. A testator devised real estate upon trust to raise portions, and, subject thereto, to his eldest son in fee. The latter, on marriage, covenanted to pay the por- tions, and to convey the estate, discharged therefrom, to the use of himself for life, remainder to the use of his wife for life, with the ultimate reversion to the use of himself in fee. He died in the lifetime of his wife, intestate, and without issue, and without having paid off all the portions: — Held, on special case, that the personal estate of the testator was not pri- marily liable to exonerate the real estate from pay- ment of the unpaid portions : and also that his widow and administratrix, on payment by her, was entitled, as against the owner of the reversion in the real estate expectant on her decease, to have the legacies kept on foot as subsidiary charges upon the real estate. Bcvrham v. Clarendon, 22 Law J. Rep. (n.s.) Chanc. 1057; 10 Hare, 126. A testator, by his will, directed that his debts should be paid by his executrix, and then, after spe- cific devises of freehold and copyhold property to A B, and freehold and leasehold property to his wife for life, and afterwards to A B, gave all the rest and residue of his real and personal estate to his wife, whom he appointed sole executrix. Upon the per- sonal estate proving insufficient for the satisfaction of the debts, it was held, that the deficiency was to be paid, first, out of the residuary real estate, and then out of the property specifically devised to the executrix, before resorting to the other property specifically devised. Harris v. Wafkins, 23 Law J. Rep. (U.S.) Chanc. 540; Kay, 438. A testator gave certain real estate to A B, subject to a charge of 7,000Z., which he directed his execu- tors to raise by mortgage or sale, the same to be ap- propriated as follows, namely, l,0OOZ. to the mother of A B, 1,000/. to his sister, l,O00i. to the children of his uncle, and the remaining 4,000t for the pay- ment of a debt. The sister died during the testator's lifetime : — Held, that the above devise was not a devise minus the 7,000J., but was a de.vise subject to a charge of that sum ; and, in consequence of the death of the sister, the legacy of 1,000Z. fell into the devise and belonged to A B. Swtcliffe v. Cole, 24 Law J. Rep. (n.s.) Chanc. 486; 3 Drew. 135. A testator (subject and charged with the payment of his annuities) devised his real estate to trustees, as to part for his wife for life ; and then, in the first place, out of the rents to pay the annuities, and subject to the life estate of his wife, and the annuities, to A for life, &c. &c. : — Held, that the real estates were liable to be sold for payment of the arrears of the annui- ties. Pica/rd v. Mitchell, 14 Beav. 103. A testator devised his E estate, subject to debts, &c. to his wife for life, with remainders over; and he devised his C estate, subject to his debts, &c. to his wife absolutely. He afterwards mortgaged his E estate: — Held, on a deficiency of the personal estate, that the estates E and C ought to contribute rateably towards payment of the mortgage. Middleton v. Middleton, 15 Beav. 450. A testator by his will made a general devise of his real estate to his nephews charged with his debts and legacies. By a codicil he devised a freehold house to A B, it being his wish that she should reside therein if she should think fit : Held, that the house was exempt from the charge of debts and legacies. Wheder v. Cla/ydon, 16 Beav. 169. A testator gave his real and personal estate to trustees for the maintenance of his four children until they attained twenty-one; as they arrived at that age respectively he directed it to be divided as follows: a legacy of lOOi. to his son, and his pro- perty at G (freehold) between his daughters : — Held, on a deficiency of personal estate, that the legacy was not charged on the real estate. JBentley v. Old- field, 19 Beav. 225. A testator gave his real and personal estate to trustees, and directed them to pay the income to his 262 DEVISE. wife for life, and after her death to sell his real estate, and out of the money to arise therefrom in the first place to pay to A, B and C the following sums (specifying them), and upon trust to invest " the remainder of the money to arise from such sale," and stand possessed thereof and of his per- sonal estate in trust to pay certain annuities, and he gave the residue to the plaintiff: — Held, by the Master of the Rolls, that the bequests to A, B and C were payable solely out of the real estate, but the decree was varied by the Lords Justices. Fream v. Dmclhg, 20 Beav. 624:. A testator directed monies required for the pur- poses of his will to be raised by mortgage of part of his real estate ; the Master found that the money could be more advantageously raised by a sale of part of the estate, but the Court declined to direct a sale. Drake v. Whitmore, 6 De Gex & Sm. 619. A testator in possession of lands devised the same to his widow for life, remainder to another tenant for life, with remainders over, and he gave to the plaintiff 200/., which he charged on specified land, part of his lands devised, payable after the widow's death. The widow was possessed for her life, and on her death a stranger entered into and kept pos- session of the lands of the testator; the plaintiff by his bill, to which the tenants for life and in remainder and the stranger were defendants, asked that the 2001. legacy might be raised out of the specified land. The tenant for life disclaimed, the stranger alleged a title paramount to that of the testator, and objected that he ought not to be a party : — Held, that the stranger could not be sued in this Court by any person claiming under the will, and he was dismissed with costs ; and the Court declared the plaintiff entitled to his legacy, appointed a re- ceiver, and ordered that the plaintiff should be at liberty to bring such action as he should be advised for the recovery of the specified land in the names of the tenants for life and in remainder, upon an indemnity. Da/niel v. Davies, 6 De Gex & Sm. 611. (F) Devise for Payment or Debts. A testator directed his debts to be paid out of a fund after provided; he directed his real estate to be sold, and out of the produce his debts and funeral expenses to be paid, the residue to be held by the trustees upon certain trusts; he afterwards gave certain legacies and annuities; and he then be- queathed his personal estate, " after and subject to the payment of his debts, funeral expenses, legacies and annuities," to the party chiefly interested under those trusts, absolutely : — Held, that the personal estate was the primary fund for the payment of the debts. Paterson v. Scott, 21 Law J. Rep. (h.s.) Chanc. 346; 1 De Gex, M. & G. 631. Held, also, that the doctrine of marshalling was applicable in favour of legatees and annuitants, who were, therefore, decreed to stand in the place of the specialty and simple contract creditors as against the real estate devised in trust for sale, and payment of debts. Ibid. Real estate devised, subject to payment of debts, to one for life, with remainder to three persons as tenants in common, where one of the shares in re- mainder lapsed : — Held, that the lapsed share was applicable for payment of debts in the same order as the devised estates, and not till after real estates which descended as having been purchased after the will. Wood V. OrdUh, 3 Sm. & 6. 125. A testator bequeathed legacies to A, B and C, payable out of his personal estate, and he devised his real estates, subject to the payment of his debts, to D and E. The personal estate being exhausted in payment of debts, the legatees were held entitled on the principle of marshalling to have recourse for payment to the real estate, to the prejudice of the devisees. Su/rtees v. Parhm, 19 Beav. 406. The testator, after directing payment of his debts, devised his real estate to his executors upon trust to sell, and he directed that the produce should be deemed part of his personal estate, and that the rents until the sale should be deemed part of the annual income of his personal estate, and that the same monies and rents should be subject to the dis- position thereinafter made of his personal estate and the income thereof ; and he bequeathed his personal estate to bis trustees to invest it in consols, upon trust to pay certain legacies : — Held, that the real and personal estate were blended, and applicable, pa/ri joassu, in payment of the debts and legacies. Simmons v. JRose, 21 Beav. 37. A testator, after directing that all his just debts should be paid by his executors, devised to his eldest son certain houses,subject, nevertheless, to his paying off the mortgage thereon, and then having devised to his other sons other houses which he had incum- bered, and to his daughters certain houses which were free from incumbrances, empowered his executors to receive all rents due to his estate, and to pay his debts, and to use such means as should be necessary for recovering all money due to his estate, and also to grant possession to his devisees and to reimburse themselves : — Held, not a general charge of debts on the whole of the real estate. Wisden v. Wisden, 2 Sm. & G. 396. A testator directed his real estate to be sold " im- mediately or so soon as conveniently might be," and applied in aid of his personal estate, in payment of his debts; but until the settlement should be made as after directed, the rents were to be applied in keeping down the mortgages, and the residue to be paid to the persons entitled under the settlement. He then directed the unsold hereditaments to be settled on A for life, with remainder over. The testator was greatly indebted on bonds, and his per- sonal estate was largely deficient. More than a year elapsed before the sale of the real estates: Held, that the interest on all the debts for the first year was payable out of the corpus of the real estate, but that the tenant for life was bound to keep down the subsequent interest. Oreialey v. Cheater- fidd, 13 Beav. 288. Testator, being possessed of real and personal estate, directed the latter to be invested in govern- ment securities, the interest whereof, with all the rents and profits from freehold, copyhold, or lease- hold property, after payment of all his debts, &c., he gave and devised upon certain trusts : — Held, that this did not evidence a sufficient intention to create a mixed fund, so as to exempt the application of the personal estate in the first instance from the discharge of his debts. Tidd v. Lister, 23 Law J. Rep. (n.s.) Chanc. 249; 3 De Gex, M. & G. 857. Testator devised inter alia all his estate, &c. to DEVISE. 263 t'rustees on trust out of the rents and profits during the lives of A and B and the survivor to pay debts, legacies and repairs, subject thereto to pay 2,000^ a year to A, who was his heir-at-law, and subject thereto to B for Hfe : — Held, that advowsons passed, that the next presentations belonged neither to A nor to B till the trusts for payment of debts, &c. were satisfied, and. must be sold for those purposes. Cocke V. Cholmondeley, 3 Drew. 1. A testator, who died in 1883, bequeathed two cottages to his executor in trust to sell and retain a debt due to him from the testator, and hold the surplus for other persons. The executor never proved the will, but retained the property in dis- charge of his debt. He bequeathed it by his will, and it was enjoyed by the tenant for life thereunder until 18S2. A legatee in remainder under the second testator, afterwards instituted a suit to recover the cottages, which was resisted by a person claiming under the will of the first testator. The executor's debt was alleged to be SOOl. and the value according to one side was 300/. and on the other 360/., but the value of the property had greatly increased from local circumstances. The Court, notwithstanding the lapse of time, granted relief by ordering a sale. Smilk V. Sokes, 20 Beav. 568. (G) Tbtjst roB Sale. A testator, by his will, appointed A, B and C to be his executors, in trust to dispose of his property in the following way ; he then directed that all his debts should be discharged by his executors, and that the residue of his property, real and personal, should be disposed of by them at the time therein men- tioned, save and except his estate at M, which he gave to A for life, and at A's death to be disposed of as aforesaid :-:— Held, that A, B and C had a power of sale of the estate at M : and that it was not neces- sary for them to shew that there were any of the testator's debts left unpaid. Mather v. Norton, 21 Law J. Rep. (h.s.) Chanc. IS. A testator devised his freehold estates to A, B, C and D, and their heirs, on the usual trusts for sale. He then ordered and directed that A, B, C and D, the executors of that his will, or the survivors or sur- vivor of them, or the executors or administrators of such survivor, should sell his copyhold estates. He then gave all his personal estate to the same persons, and declared the trusts of all the monies to arise from his real and personal estate. A died in the lifetime of the testator. The testator died in 1830. B and C sold the copyhold estates in 1832. In 18S1 D executed the usual deed of disclaimer. There was no evidence that D had refused to accept the execu- torship before the sale in 1832 : — Held, first, that copyholds were within the 21 Hen. 8. c. 4; and, secondly, that, under that act, the sale of the copy- holds had been made by B and C. Peppercorn v. Waymam, 21 Law J. Hep. (n.s.) Chanc. 827 j S De Gex & S. 20. A testator died in 1826, and by his will bequeathed all the residue of his estate to his executors, in trust, at such times as they should think fit, to convert into money, and to invest the proceeds in the public funds, and thereout to pay his just debts, and then to pay an annuity to his wife, to set apart certain legacies to his daughters, and to stand possessed of the re- mainder for his two sons absolutely; and he declared the receipts of his trustees should be sufficient dis- charges to purchasers. The testator's residue con- sisted.in part of two leasehold houses, the title-deeds of which the then trustees, A and H, deposited with the plaintiffs by way of mortgage for a loan which they alleged was required for the purposes of the will. A died in 1 846, and H paid interest on the loan up to 1847, and then absconded, having mis- appropriated the money. On bill by the lenders for relief as equitable mortgagees, — Held, reversing the decree of the Court below, that the mortgage could not be sustained as a due execution of the trust. Stroughill v. Anstey, 22 Law J. Hep. (ir.s.) Chanc. 130; 1 De Gex, M. & G. 636. Where the legal estate is given to trustees upon trust, by sale, to raise a particular charge, and sub- ject thereto the estate is given over, the trustees may be justified in raising the charge by mortgage; but where the trusts are for conversion out and out, and to apply the proceeds in payment of debts, and then for specified purposes, a mortgage is not a due exe- cution of the trusts. Ibid. Where, by will, there is a charge made on an estate, and by force of the charge an implied trust to raise money generally, and the estate is devised sub- ject to the charge, there the charge may be raised either by mortgage or sale. Ibid. If an executor or devisee sell, after a considerable lapse of time or under circumstances raising a fair presumption that the sale is not made with an inten- tion to execute the trust, but for his own purposes, the purchaser will not be safe in abstaining from inquiring into the propriety of the sale. Ibid. The rule that, where there is a charge of, or a trust for raising debts and legacies, the purchaser is not bound to see to the application of the purchase- money is founded upon this, — that the testator, by creating such charge or trust, has shewn that he intends to intrust his trustees with the power of receiving the money, because there may be debts; and by implication he declares that the purchaser shall be absolved. Ibid. A direction by a testator that his trustees shall stand seised and possessed of his real and personal estate upon trust to raise and pay an annuity, and, subject thereto, to raise out of his real and personal estate a sufficient sum to make up, with what his daughter A had received on her marriage, an amount equal to the property his other children would be entitled to under his will, and a devise of all his real estate, and the residue of his personal estate to his other six children as tenants in common; and until a sale of all his real and personal estate should be made, and in order that no such sale should be required to ascertain the amount of the share of his daughter A, he authorized his trustees, if they should think fit, to cause a valuation to be made of his real and personal estate, and according to its amount, after deducting debts, &c , to fix the share of his daughter A, which should be accepted by her, with a further direction that she should not be entitled to any interest on her share until each of his other children had received interest on a sum equal to the amount previously advanced to her, and that no valuation should be required to be made until each of the other children had received such equal sum, and a clause declaring that the receipts of the trus- tees shall be sufficient discharges for any money pay- 264 DEVISE; (H) Void Detise. able to them under his will, and that the person paying it shall not be liable to ascertain the necessity or regularity of any mortgage, sale or disposition under the trusts of the will : — Held, that the trustees had a power of sale of the whole real estate of the testator, which it was at their discretion to exercise in case they did not think fit to proceed by way of valuation. Bird v. Fox, 11 Hare, 40. A devise of real and personal estate to trustees, with a direction for sale with all convenient speed and within five years, and to apply the proceeds in payment of debts and legacies, and invest the residue upon trusts for the widow and children of the testator: Held, to empower the trustees to sell after the five years had elapsed. Pearce v. Gardner, 10 Hare, 2S7. (H) Void Devise. (a) Remoteness. A testator devised freehold and leasehold estates to trustees, upon trust to pay the rents to A for life, and, after her death, to pay the rents for the benefit of A's son Robert, and all and every the other son and sons of A, until he and they should attain their ages of twenty-five years; and, on his and their attaining that age, in trust for the heirs, executors and administrators of Robert and all the other son and sons of A as should attain twenty-five; but, in case they should all happen to die under twenty-five, then over: — Held, that the devise to Robert and the other sons and son of A gave them an immediate vested interest, and was not void for remoteness. James v. Wynford, 22 Law J. Kep. (n.s.) Chanc. 450; ] Sm. & G. 40. A testator gave freehold and leasehold estates to trustees upon trust for A for life, and directed them, after the death of A, to pay the rents, or so much thereof as should be necessary, for the maintenance of A's son Robert, and all other sons of A until he or they should attain twenty-five; and, on his or their attaining twenty-five, upon trust for him and them for their lives, as tenants in common, and, after their decease, in trust for the eldest son of Robert and the eldest of all the sons of A and the heirs of his and their bodies; and for want and in default of such issue, over : — Held, that the devise and bequest of the freehold and leasehold estates took efl^ect in favour of Robert and such other sons, and was not void for remoteness; and that there was an estate tail given to the eldest son of Robert and the eldest ofthesons of A. Ibid. A testator gave and devised to trustees all his freehold, leasehold and personal property, upon trust to sell, and the money arising from such sale was to be invested for the benefit of his three daughters; the interes-t thereof to be paid to each of them for their lives, and on the decease of each of them one half of the fund or share to be paid to the children of each daughter so dying, at the age of twenty-one, and the other half to such grandchildren for life only, and afterwards to their children at twenty-one : — Held, that the gift to the children of grandchildren was void for remoteness; that the daughters did not take an absolute interest, and that the undisposed of portion of the real property went to the testator's heir. Whitehead v. Rennett, 22 Law J. Rep. (n.s.) Chanc. 1020. W T, by his will, demised real estate to trustees, upon trust to receive the rents during the lives and life of the survivor of all the children which his daughter M 6 had or should have, and to apply the same in support of his daughter and her children in equal shares ; and whenever any of her children should attain twenty-one during the minority of her youngest living child, the share of such child in the rents was to be paid to him or her ; and when the youngest grandchild should have attained twenty-one the savings of the rents were to be paid amongst his grandchildren then living equally (with benefit of survivorship among his daughter and the survivors and survivor of the grandchildren) ; but in case any grandchild died, leaving issue, such issue was to take the parent's share ; and in case his daughter should be living, on the youngest grandchild attaining twenty-one, to pay her an annuity of 1002. for her life ; and to pay the rents from that time among his grandchildren, and the issue of those dying equally, and to the survivors and survivor of them until the decease of the longest liver of his grandchildren, such issue to take only the parent's share ; and after the decease of such surviving grandchild, upon trust to convey estate S unto the then eldest living grandson of his Saughter. The residue of his real estate was then to be sold and the proceeds divided among all his great-grandchildren (except the eldest) equally. The testator died in 1797. His daughter had six children living at his death ; two of whom died, un- married, in 1800 and in 1807 respectively, and one, the eldest son, died in 1837, leaving issue. The testator's daughter died in 1801. Upon a suit insti- tuted by J G, the youngest grandchild, — Held, upon appeal, substantially confirming the decree below, that the testator contemplated that all the children of M'G to be born at any time until an existing child should attain twenty-one, were to have the benefit of the trust ; that the testator's grandchildren took life estates only as tenants in common ; and that the trusts substituting the issue for the parents after the youngest child attained twenty-one, were void for remoteness ; that the trusts of the estate after the dSath of the last survivor of the children of M G, were also void for remoteness, and that the trusts of the produce of the residue of the real estate were also void for remoteness. Gooch v. Gooch, 22 Law J. Rep. (n.s.) Chanc. 1089; 3 De G. M. & G. 366; 21 Law J. Rep. (n.s.) Chanc. 238; 14 Beav. 565. A decree directing the trusts of a will to be carried into execution, does not imply that all the trusts are valid. Ibid. Devise of real estate to A for life, and after his decease to all his children, share and share alike, and all their children and their heirs ; but in default of issue of A, to Band C and their children, the mothers and children and their heirs to share the rents equally, as had been directed with regard to the children of A : — Held, that the gift to B and C was not too re- mote, and that they and their children living at the death of the testator took as tenants in common in fee. Cormack v. Copous, 17 Beav. 397. Limitations of a term to trustees, upon trust to raise portions for the children of A surviving A and B, " to vest in and to be paid and payable to " them at their ages of twenty-four years, with maintenance, &c. in meanwhile, out of the expectant or presump- tive shares, and a gift over on the death of all before their shares should become vested : Held, void for DEVISE— DISENTAILING DEED. 265 remoteness. In re Blakemore's Settlemeni, 20 Beav. 21i. A testator devised lands upon trust to pay the rents and profits to a tenant for life, and after her decease, and until her youngest child should attain twenty-five, to pay the rents and profits for the maintenance of her children; and on the youngest child attaining twentyfive, to sell and divide the proceeds among all the children of the tenant for life then living, and the issue of such as should be dead : — Held, that the trust for maintenance was separable from the rest, and was not bad for remote- ness, whether the trust for sale was so or not. Oood- ing V. Read, 4 De Gex, M. & G. 610. A testator bequeathed to his executors and trus- tees all his personal estate (except such goods as were by his will especially bequeathed), and also ex- cept his leasehold estates, which he declared it to be his intention to exonerate from the payment of his debts and legacies, upon trust, in the first place, to pay his debts, ftineral and testamentary expenses and legacies ; and in case there should be any residue of his personal estate (except as aforesaid), he gave the same to his son R. And after giving certain spe- cific legacies, the testator devised all his freehold hereditaments to the same trustees, upon trust for his said son R for life, with remainder to his grand- son W for life, with divers remainders over in tail. And the testator gave all his leasehold estates to the same trustees, in trust, to permit the clear rents thereof to be received, taken and enjoyed by the person for the time being entitled to the freeholds, until such person should by good assurance become seised of the freeholds in fee simple in possession, and then in trust to convey and assign the leaseholds to, him : ^Held,. that the limitations of the leaseholds be- yond the life estates of R and W were void for re- moteness, and that the interests thiis improperly at- tempted to be given did not belong exclusively to W as the last tenant for life, nor did it pass by the residuary bequest to R, because the exception of the leaseholds out of the residuary gift was not simply for the purpose of making a separate bequest of them, but also to exonerate them from payment of the debts and legacies ; and therefore held, that beyond Ws life estate, the leaseholds were undisposed of by the will, and belonged to the next-of-kin of the tes- tator. Warnmam v. Field, Kay, 607. (i) Lapse, A testator gave his residuary real and personal estate to his wife, her heirs, executors, administrators and assigns, but if she should die intestate then to his nephew and M E. The wife having died in the lifetime of her husband : — Held, that the gift over lapsed and could not take effect. Hughes v. EUis, 24 Law J. Rep. (n.s.) Chanc. 351; 20 Beav. 193. If a specific devise of lands fails, it will fall into and pass by a general devise of all real estates not before devised. Green v. Dmrn, 24 Law J. Rep. (n.s.) Chanc. 577; 20 Beav. 6. DISEASES PREVENTION'. [See 18 & 19 Vict. c. 121.] DISENTAILING DEED. The execution of a disentailing deed by a married woman may be acknowledged by her at any time, the acknowledgment not being limited by the six months required for the enrolment of the deed by the 3 & 4 Will. 4. c. 74. In re the London Dock Act, 1853, 24 Law J. Rep. (n.s.) Chanc. 606j 20 Beav. 490. By a disentailing deed under the Fines and Re- coveries Act, 3 & 4 Will. 4. c. 74, after reciting that A was tenant for life, with remainder to B in tail of the two estates therein comprised, and that A being called upon to pay a debt of 1 ,2002., had applied to C, who had agreed to advance that sum in considera- tion of B joining in the deed, which he had also agreed to do; in order to defeat all estates tail of B, and to convey the inheritance in fee therein, A and B jointly conveyed the two estates, and all the inter- est of A and B therein to C for 600 years, to secure the repayment of 1,200Z. and interest, with remainder to A for life, remainder to B in fee. In fact A Was tenant in tail, not tenant for life, of one of the two estates ; — Held, that the conveyance being for valuable consideration as to both B and C, the tenant in tail under A's entail could not be heard to say that such entail was not barred by the deed, the intention to convey the whole fee simple in the pro- perty so entailed being sufficiently expressed, and the operative words of the disentailing deed being large enough to bar such entail. Evwns v. Jones, Kay, 29. A settlement by which real estates were limited to the use of A for life, with remainder to her son in tail, contained a power of sale and exchange, to be exercised during the life of the tenant for life with her consent, signified by writing under her hand and seal. By a disentailing deed to which the tenant for life was a party, the tenant in tail, with the con- sent of his mother, the tenant for life, testified by her executing that deed, conveyed the settled estates subject to her life estate therein, and also other hereditaments of which he was tenant in tail in pos- session, to uses to bar dower in his own favour. This deed contained no recital of aiiy contract, but in the operative part its object was stated to be in order to defeat the estate or estates tail of the tenant in tail in the hereditaments therein comprised, and all other estates, powers, rights and interests limited to take effect after the determination or in defeasance of such estate or estates tail, aUd to limit the fee simple in such hereditaments, as to such parts thereof as were vested in the tenant for life, subject to her life estate therein, to the uses thereinafter expressed: — Held, that the concurrence of the tenant for life in the disentailing deed did not bar her power of assenting to a subsequent exercise of the power of sale and exchange, because this was a power to raise a use paramount to the estate tail, and there Was nothing in the frame of the deed from which a contract could be implied that the tenant for life Would not consent afterwards to tlj,e exercise of the power of sale and exchange. HiU v'. PrUdkmrd, Kay, 394. Digest, 1850—1865. SM 266 DISTRESS. DISTRESS. [Right of company to distrain engine improperly on their railway, see Company. And see Be- PLEVIN.] (A) Who may distbain. (B) What Goods are distrainablb, and for WHAT THEY MAY BE DISTRAINED. (C) Goods PRAUDnLENTLY removed. (D) Suspension of Right to distrain. (E) When the Distress operates as a Dis- charge. (F) Notice and Abandonment of Distress. (G) Wrongful and excessive Distress. (H) Podkd Breach. (A) Who may Distrain. [See Fairhwst v. tM Liverpool Adelphi Loan Asso- ciation, title Baron and Feme (A) (e).] A being tenant from year to year to six joint tenants of part of a cotton-mill and factory, four of the six executed an assignment of the whole of the factory to F, subject to the interest of A, who after- wards became the tenant of F. When the assign- ment to F was executed there was 111^ arrears of rent due from A : — Held, that after the assignment to F all right to distrain for such arrears of rent was gone. Stavdey v. AUodk, 20 Law J. Eep. (k.s.) Q.B. 320; 16Q.B. Rep. 636. Trespass to goods. Plea, that by an indenture, made in 1847, between Q. and the defendant, it was agreed between Q and the defendant, who was, during all the time thereinafter mentioned, possessed of certain premises for a certain term then to come and unexpired therein, that Q should hold the pre- mises as tenant at will to the defendant, at the yearly rent of 150^., for which rent it should be law- ful for the defendant to distrain as landlords may for rents reserved on leases for years; that Q held the premises under the said indenture and agreement ; that three years and a quarter's arrears of rent be- came due, during the time Q held the premises as such tenant, and the defendant was possessed of them as aforesaid ; and that the defendant distrained the goods for rent. The plaintiff set out the inden- ture on oyer, from which it appeared that Q, having become, in 1847, the lessee of the premises, under M, for twenty-one years, wanting one day, and having borrowed money from the defendant, demised the premises to the defendant by way of mortgage, at a peppercorn rent, and that the defendant re- demised the same to Q at a yearly rent of 150Z., with power of distress : — Held, on demurrer, that the plea was bad, in not shewing such an interest in the premises on the part of the defendant as entitled him to distrain. Pmkom v. Sonster, 22 Law J. Rep. (n.s.) Exch. 18; 8 Exch. Rep. 138. A mortgagor in possession ia, prceswmptione jixris, authorized to distrain as the bailiff of the mortgagee. Trent v. Etmt, 22 Law J. Rep. (n.s.) Exch. S18; 9 Exch. Rep. 14. A mortgagor in possession distrained for rent accruing due after the mortgage, but the notice of distress described the rent as due to himself: — Held, in replevin, that he could make cognizance as the bailiff of the mortgagee. Ibid. (B) What Goods are distrainablb and for WHAT they may BE DISTRAINED. The defendant being the landlord of certain pre- mises occupied by the plaintiff, seized as a distress for rent certain cotton spinning machines, which were fixed by screws, some into the wooden floor and some into lead which had been poured in a melted state into holes in the stone for the purpose of receiving the screws. The machines having been replevied by a replevin issued out of the Honour Court of Pontefract, the defendant entered and seized them a second time : — Held, that the ma- chines never became part of the freehold, and were distrainable. Hellwtoell v. Sastwood, 20 Law J. Eep. (N.s.) Exch. 1S4; 6 Exch. Rep. 295. A, by a contract in writing, demised to B, at a yearly rent of liSl. from the 14th of May 1851, certain premises, including a cottage occupied by C at the rental of 51. a year. B took possession of all the premises included in the demise except the cot- tage, as C refused either to go out or to attorn to B. Before the day fixed for the first half-yearly payment of rent, A and B verbally agreed that A should receive from C some arrears of rent, and that A should pay B 701. on the 14th of November 1851, and 701. on theUth of May 1852 -.—Held, that this was a. new demise, and that A was entitled to dis- train for the 701. due on the 14th of November. Watson V. Wa/rd, or Waud, 22 Law J. Rep. (K.s.) Exch. 161; 8 Exch. Rep. 335. The defendant let premises to a tenant, from the ISth of June 1815 for five years, at a yearly rent of 1001., to become due and payable in advance (if demanded) by equal quarterly payments, on the ' ISth of September, December, March and June respectively in every year : "Provided always, that if the yearly rent hereinbefore reserved, or any part thereof, shall be in arrear and unpaid for twenty-one days next after any of the days hereinbefore ap- pointed for payment thereof in advance, being first lawfully demanded upon or at any time after the said twenty-one days, and not paid when de- manded," then the lessor should have power to re- enter, &c. No rent was demanded until August 1852, when upon its not being paid the defendant distrained ; — Semile — that the construction of this demise was, that the rent was payable in advance, but was not to be actually paid until demanded, and, therefore, that the defendant was entitled to distrain. Williwm V. Holmes, 22 Law J. Rep. (n.s.) Exch. 283; 8 Exch. Rep. 861. Goods are privileged from distress during the time they are on the premises of an auctioneer, for the purposes of sale by auction. WUUams v. Holmes, 22 Law J. Rep. (n.s.) Exch. 283; 8 Exch. Rep. 861. (C) Goods fraudulently removed. Trespass for breaking and entering the plaintiff's house and seizing his goods. Plea, that one Thomas held a house as tenant to P, that the rent was in arrear, that the said goods being the goods of Thomas were fraudulently and clandestinely carried off by him from his house to prevent a distress, and were with the plaintiff's consent placed in the plaintiff's house, whereupon the defendant as bailiff of P seized the goods as a distress. Replication, that the goods were not the goods of Thomas, nor were they fraudulently DISTRESS. 267 and clandestinely carried off by him, &e. : — Held, on special demurrer for duplicity, that the replication was good. Thomas v. Waihins> 21 Law J. Eep. (N.s.) Exch. 215; 7 Exch. Rep. 630. Where by a demise rent was reserved due quar- terly, the 25th of December being one of the quar- terly days of payment, and the tenant on that day, and whije the quarter's rent was unpaid, fraudulently removed his goods oif the demised premises for the purpose of preventing a distress, — Held, {dissentiente Crowptm, J.) that the 1 1 Geo. 2. c. 19. s. 1. enabled the landlord to follow and distrain the goods within thirty days after their removal. Dibble v. Bcmater, 22 Law J. Rep. (n.s.) Q.B. 396; 2 E. & B. 564. A declaration in trespass alleged that the defen- dants broke and entered a close of the plaintiff called the stable, and broke the doors and seized and car- ried away his goods therein. Plea, under the 1 1 Geo. 2. c. 1 9. 8. 1, that at the time when, &c., one O was tenant of certain premises to the defendant at a cer- tain rent, and that half a year's rent was then due to the defendant from and unpaid, and that within thirty days before the said time when, &c. O fraudu- lently and clandestinely conveyed from the premises held by him as such tenant, the said goods, being the goods of the said O, in order to prevent the defen- dant from distraining them for the rent; and that because the said goods still remained in the said close, and were then locked up to prevent them from being seized as a distress for the rent, the defendant, whilst the rent remained due, and within thirty days after the goods had so been conveyed and locked up, entered the said close in order to seize the goods as a distress for the rent, and did at the time when, &c., and within thirty days after the goods had been so conveyed as aforesaid, seize them as a distress for the rent ; and that because on that occasion the goods were put and kept in the close, locked up so as to prevent them from being seized as a distress for the rent, and so that the defendant could not without breaking open and entering the said close seize the said goods, the defendant was obliged and did, in order to seize the said goods, first calling in to his assistance the constable of the place where the said close and goods were, according to the form of the statute, and with his aid and assistance, in the day time, break open and enter the said close in order to seize the said goods for the arrears of rent, according to the statute; and that the defendant in so doing did no unnecessary damage, &c. : Held, first, that although it was stated in the plea that the goods were the tenant's at the time of the removal, the plea ad- mitted them to be the plaintiff's at the time of the seizure, as averred in the declaration, and, therefore, that the plea was not bad in form, as amounting to an argumentative traverse that at the time of the tres- pass the goods were the property of the plaintiff; secondly, that the plea afforded a good primd facie defence to the action within the 11 Geo. 2. c. 19.8. 1. Williams v. Roberts, 22 Law J. Rep. (n.s.) Exch. 61 ; 7 Exch. Rep. 618. A plea framed under this statute need not shew that the goods have not been made the subject of a homdfide sale to persons not privy to the fraudulent removal as provided by the 2nd section; that fact ought to be stated in the replication. Ibid. Held, also, that the plea need not state that the party upon whose land the goods are seized is privy to the fraud; and a previous request is unnecessary, in order to give the landlord the right to break into the premises for the purpose of seizing the goods. Ibid. (D) Suspension or Right to distrain. A tenant being indebted to his landlord for rent, the agent of the landlord, without his authority or knowledge, took a bill of exchange from the tenant for the amount of the rent and paid over the amount of the rent to the landlord in his settlement of account. The bill was afterwards dishonoured whilst in the hands of a third party, and the rent was not paid by the tenant, whereupon the landlord dis- trained : — Held, to beaquestion for the jury, whether the bill was discounted for, or the money lent to, the tenant by the agent, or whether it was an advance by the agent to the landlord; and that if the bill was discounted for or the money so lent to the tenant the landlord was not entitled to distrain; otherwise he was entitled. Pa/rrott-v. Anderson, 21 Law J. Rep. (n.s.) Exch. 291; 7 Exch. Rep. 93. So in another case where on the rent becoming due the agent for both tenant and landlord paid the amount of rent to the landlord without any authority from either party, and the tenant afterwards failed to pay the rent, and the landlord distrained. (See Ibid, note (3) page 292.) (E) When the Distress operates as a Dis- charge. Half a year's rent being due from a tenant, who had committed an act of bankruptcy, his landlord put in a distress and was about to sell, but in con- sequence of a notice from the petitioning creditor, stating that he was proceeding against the tenant in bankruptcy, and requiring the auctioneer not to sell, and threatening to hold him accountable if he did, the landlord withdrew the distress without obtaining payment. At that time no adjudication of bank- ruptcy had been made, nor had any assignee been appointed : — Held, that the landlord was not justified in afterwards distraining a second time on the same goods to satisfy his claim for the same arrears of rent. Bagge v. Mcmiby, 22 Law J. Rep. (n.s.) Exch. 236; 8 Exch. Rep. 641. (F) Notice, and Abandonment of Distress. A notice of distress stated " that by virtue of an authority to me given, &c. I have seized the goods, chattels, and effects specified in the schedule here- unto annexed for the sum of 1701. due," &e. The schedule specified certain goods, and concluded thus : " and all other goods, chattels and effects that may be found in and about the said premises, that may be required in order to satisfy the above rent, together with the expenses": — Held, that this notice did not justify the seizure of any goods besides those specified in the schedule, Kerby v. ffarding, 20 Law J. Rep. (n.s.) Exch. 163; 6 Exch. Rep. 234. A distrained for rent due from his tenant B, a livery stable-keeper, and took a pony and carriage belonging to one of B's customers. While the broker was in possession, the owner, who was ignorant of the distress, was allowed to take his pony and carriage out as usual, the broker believing that he would bring them back ; — Held, that this was not an aban- donment of the distress, -and that the owner having 268 DISTRESS— DIVORCE. brought them back they were still subject to the distress. Ibid. (G) Wkongful and Excessive Distress. [See title Action (A) (/).] Under a warrant of distress for arrears of rent, a landlord has no power at common law to break open the outer door of anv building. Brown v. Glenn, 20 Law J. Rep.(N.s.)Q.B. 205; 16 Q.B. Rep. 254. Distraining for a greater amount of rent than is due is not per se actionable. An allegation in a declaration by a tenant against his landlord, that the defendant wrongfully seized and took divers goods and chattels of the plaintiff as a distress for certain arrears of rent then pretended by the defendant to be due and in arrear to the defendant, and that the defen- dant afterwards wrongfully sold the said goods and chattels as such distress for the said alleged arrears of rent and the costs of such distress, will not, even to support the declaration, and after pleading over, be held to mean that the defendant sold the goods for a sum equal to the alleged arrears and costs, but only that he sold them for the purpose of satisfying such arrears and costs. Tancred v. Leylcmd, 20 Law J. Rep. (n.s.) Q.B. 316; 16 Held, that B was a trustee for C of lOOt at the death of A. Ibid. A testator, upon his death-bed, gave a cheque of l,000i. to his wife, and, at his request, she changed it for the cheque of another person of the same amount. Thetestator'schequewas paid inhislifetime, and, after his decease, the widow obtained the l,000i. upon another cheque given to her for that for which she had parted with her husband's cheque : Held, that the gift to the wife was complete, and that the 1,0002. did not form part of the husband's estate. BouU\.EUia,22 1&w J. Rep. (n.s.) Chanc. 716; 4 De Gex, M. & G. 249; 17 Beav. 121. A father, having lent his sou a sum of money, took a deposit of the title deeds of an estate, to- gether with a bond. The son afterwards borrowed the deeds from his father and mortgaged the property to another person unknown to the father, who, during an illness from which he never recovered, gave his DONATIO MORTIS CAUSA— DOWER. 271 son the bond, at the same time using these Words : — "Take this, but do not wrong your children, and do not mortgage your property " : — Held, that this con- stituted a valid Aonatio mortis camA for the benefit of the son alone. Meredith v. Watson, 23 Law J. Kep. (n.s.) Chanc. 221. A being indebted to B in 2002., appointed him executor of his will. When on his death*bed, A gave to B a cheque for 9001. with the following me- morandum thereon : " C, 2002., B, 2002., executor- ship fund 5002." At the same time, A gave to B verbal instructions to keep 2002. in discharge of the debt, to hold 2002. for C, and to treat the remaining S002. as part of his estate. The cheque was cashed and the money placed to B's account at hia bankers before A's death : — Held, that the 2002. was a gift inter vivos in favour of C, and not a donatio mortis ccmsd. Tate v. Lextliead, 23 Law J. Rep. (h.s.) Chanc. 736 j Kay, 6S8. DOWER. (A) Election. (B) When barred. (C) Priority. (D) Proceewnqs fob. (A) Election. , A testator, by his will, gave all hia freehold and leasehold measuagea, tenements, &c., to trustees for all his estate and interest therein, on trust, to sell and apply the proceeds in manner thereinafter de- clared ; he then gave certain legacies out of his per- sonal estate; and the residue thereof, together with the proceeds to be derived from the sale of hia free- hold and leasehold estate, he directed to be divided into four parts; one-fourth he gave to hia wife and the other three-fourths to certain other relations. Amongst other legacies, sums of money were given in unequal amounts to his wife and the other de- visees. The testator, after the date of his will, had demised parts of his estates for terms of years, with an option to the lessees to purchase, and had permitted one lesaee to erect buildings, which had been done, and the estate was thereby greatly improved :_ Held, that the widow of the testator was not to be put to her election, but was entitled to dower, as well as to the benefits given her by the will, and that she would take her dower according to the existing value of the estate, since the acts by which the value of the propertv had been altered were not her acts. Gibson v. Gibson, 22 Law J. Rep. (n.s.) Chanc 346; 1 Drew. 42. A testator seised of real estates, of which his wife was dowable, devised and bequeathed all his real and personal estate to trustees upon truat, out of the income, to pay his widow, 202. a year, and gave his trustees a power of leasing over his real estate. The provision made for the widow was small, as com- pared with the whole income : — Held, that the widow was not put to her election between her dower and the provisions contained in the will, but was entitled to both. Warhvtton v. Warbuttan^ 23 Law J. Rep. (n.s.) Chanc. 467; 2 Sm. & G. 163. Where a testator, seised of real estate of which his wife is dowable, makes a provision for hia wife by will, and gives a power of leasing his real estate to trustees, such power is a strong circumstance in favour of hia intention to put his wife to her election between such provision and her dower; but ia not conclusive on the question, and, notwithstanding such power, she may be entitled to both. Ibid. A testator bequeathed all his personal property to his wife, and he gave her an annuity out of a par- ticular freehold estate, devised to J P in fee. He then devised all other his freehold estates to trustees, with power to let the same, and to cut timber for repairs, until all his nephews and nieces attained twenty-one; and after the happening of that event, he directed the estates to be sold, and the proceeds to be divided equally among all his nephews and nieces : — Held, affirming the decision below, that the widow was bound to elect between the benefits given her by the will and her claim to dower. Parker v. Soiverby, 23 Law J. Rep. (n.s.) Chanc 623; i De Gex, M. & G. 321 : affirming 22 Law J. Rep. (h.s.) Chanc. 942; 1 Drew. 488. To raise a case of election, it is not necessary that it should be apparent on the face of the will that the wife's right to dower was present to the testator's' mind; it, is sufficient that the disposition of the pro-- perty is inconsistent with the right to dower. Ibid. A testator gave annuities to his widow, charged on land, certain freehold parts of which he had no power to devise, and as to certain copyhold parts of which it was contended that they did not pass by his will. He declared that such annuities were in satisfaction of " all dower and thirds at the common law or other- wise, which she would or might have been entitled to in default of his will ;" — Held, that the widow was put to her election as well as to the freehold lands which he had no power to devise, as to the free bench out of the copyhold. Nottley v. Palmer, 2 Drew. 93,, (B) When barred. In the deed of settlement, made on the marriage qf E S, an adult female, it was recited, that " for providing a competent jointure and provision of maintenance for the lady in case she should survive her husband," the father of T D, the intended hus- band, had paid to T D 3,0002., and the father of the lady had paid to T D 8512. and had covenanted to pay him a further sum of 5002. ; and that it had been agreed that T D should give a bond to the trustees of the settlement, conditioned for the payment of 2,0002. within six months after the marriage; and it was declared that the trustees should hold the 2,0002, upon trusts for the benefit of the husband and wife for their respective lives in succession, &c. T Dgave the bondaccordingly, and died, leaving E S surviving him, having paid 5002. only in discharge of the bond. After the marriage, T D acquired real estate which he sold during the coverture. Upon bill by the wife against the purchaser, claiming dower: Held, upon appeal, that the settlement, being expressed to be " for providing a competent jointure," must be under- stood to be in bar of dower; and, reversing the deci- sion below, that the partial non-payment of the money secured by the bond, did not entitle the widow to claim against the purchaser of the hus- band's real estates her dower pro tamto. Dyke v. Eendall, 21 Law J. Rep. (n.s.) Chanc. 906; 2 De Gex, M. & G. 209. 272 DOWER— EASEMENT. Equitable bar of dower depends altogether upon contract; and has no analogy to legal bar of dower under the Statute of Uses. Ibid. The obaei;vation8 of Sir A. Hart, in Power v. Sheil (1 Moll. 311), disapproved of. Ibid. A conveyance of real estate prior to the 3 & 4 Will. i. c. 106. to a married man to uses to bar dower, with a declaration that it was "to the intent that the present or any future wife should not be entitled to dower," will not as against the heir-at-law deprive a second wife married after the passing of the act of her dower. Fry v. Noble, 24 Law J. Bep. (n.s.) Chanc. 591; 20 Beav. 598. An equitable right to dower entitles a widow to costs, if it is disputed by a party to whom the estate had been sold by the heir-at-law. Ibid. (C) Priority. By Sir John Romilly's Act freeholds and copy- holds of a deceased are now assets for the payment of his debts, and by the Dower Act all debts to which the land of a deceased are subject are " valid and effectual as against the right of his widow to dower ;" — Held, nevertheless, that the widow's right to dower or free bench has still priority over mere creditors of a deceased. Spi/er v. Hyatt, 20 Beav. 621. A widow dowable out of her husband's lands, having elected to ttike an annuity given by the will in lieu of her dower, the testator's estate being insufficient to pay the legacies in full : — Held, entitled to priority over the other legatees. Stahlschmidt v. Lett, 1 Sm. & G. 421. (D) Proceedings eoe. On a plea of tout temps prut to a declaration in dower under the Statute of Merton, replication of a demand and refusal to render dower before the writ sued out, rejoinder traversing the demand, and issue thereon found for the demandant, the demandant is entitled to damages from the death of her husband, and not from the date of the demand only. Watson v. Watson, 20 Law J. Bep. (h.s.) C.P. 25; 10 Com. B. Bep. 3. Dower may be demanded by another person on behalf of the widow; and a demand in the presence of witnesses is not necessary. Ibid. EASEMENT. [See Custom and Prescription — Light — Nni- SiNCB Water and Watercourse — Way.] (A) What is an Easement. (B) How the Bight may be acquired. (C) Pleading and Evidence. (A) What is an Easement. A water company which has laid pipes in a land tax division under a statutory power in that behalf, but which is the owner of no land within the division, is not assessable there to the land tax; the right in question being in the nature of an easement, and not " land " or " hereditament." The Governor a/nd Com- pany of Chelsea WaterworJcs v. Bowley, 20 Law J. Bep. (N.s.) Q,.B. 520; 17 Q.B. Bep. 358. The 8th section of the Prescription Act, 2 & 3 Will. 4. c. 71, only applies to the computation of the period of forty years' enjoyment, which, under the 2nd section, confers an absolute and indefeasible right to an easement. Where, therefore, a right of way was claimed under the 2nd section of the act in re- spect of twenty years' user as of right, and it ap- peared that, during a portion of that period, the servient tenement had been under leases for terms of years, and no resistance had been made either after or during the leases, to the user of the way, — Held, that the time during which the servient tenement had been on lease, was not, under the 8th section, to be excluded in the computation of the period of twenty years. Folk v. Shinner, 22 Law J. Bep. (n.s.) Q.B. 27; 18 Q.B. Rep. 568. Where the owner of land builds houses upon it, adjoining each other so as to require mutual support, there is, either by a presumed grant or by a presumed reservation, a right to such mutual support, and such right is not affected by subsequent subdivision of the property. Richards v. Rose, 23 Law J. Rep. (n.s.) Exch. 3; 9 Exch. Bep. 218. Therefore, where B, the owner in fee, demised land to P on a building lease, and P erected two houses adjoining each other, and subsequently under- leased to W, who mortgaged the two houses, and the assignee of the mortgagee imder a power of sale sold one house to the plaintiff, and subsequently sold the other to the defendant, it was held that the plaintiff was entitled to maintain an action against the defen- dant for excavating under his own house and removing his own soil, whereby the plaintiff's house was de- prived of support and sank. Ibid. A right claimed by the inhabitants of a township to enter upon the land of a private person and take water from a well therein for domestic purposes is an easement and not a profit d, prendre, and may, there- fore, properly be claimed by custom. Race v. Wa/rd, 24 Law J. Bep. (n.s.) Q.B. 153; 4 E. & B. 702. (B) How THE Bight may be acquired. Where, to an action of trespass, a claim of right acquired by thirty years' user without interruption is set up extending over a space larger than, but in- cluding, the locus in quo, and an interruption ac- quiesced in for a year is shewn to have existed as to the locus in quo, but as to no other part of the space over which the right is claimed, the right under 2 & 3 Will. 4. C.71. is disproved as between the parties to the action, and affords no justification of the trespass complained of. Dames v. Williams, 20 Law J. Bep. (n.s.) Q.B. 330; 16 Q.B. Bep. 546. An interruption of a right acquired by user within the meaning of 2 & 3 Will. 4. c. 71. s. 4. may be caused by the act of a stranger, and not the owner of the servient tenement. Ibid. Although under 2 & 3 Will. 4. c. 71. s. 4. no interruption will prevent a right from being ac- quired by twenty years' user unless it has been acquiesced in for a whole year, yet an interruption for a shorter period may have the effect of shewing that the enjoyment never was as of right, and thereby of preventing a right being acqnu-ed under section 1 . of the same act. Eaton v. the Swcmsea Water Co., 20 Law J. Bep. (n.s.) Q.B. 482; 17 QB. Bep. 267. In trespass qu. cl. fr., pleas of a user of the locus in quo as a road for a full period of twenty years, EASEMENT— ECCLESIASTICAL COURT. 273 and forty yeaTS, preceding the commencement of the suit under 2 & 3 Will. 4. c. 71, are not supported by proof of an user for twenty and forty yeara up to within fourteen months before the commencement of the suit. Loae v. Cwrpenler, 20 Law J. Rep. (n.s.) Exch. 374; 6 Exch. Rep. 825. Serrible — that to furnish proof of a right by user under that statute there ought to be an user at least once a year. Ibid. Whether mere non-user of a right amounts to an abandonment of the right, will depend upon the circumstances which caused the non-user. There- fore, where the use of an immemorial right of way to a close was discontinued because the occupiers had a -more convenient access to it over another close in their occupation, — Held, that the non-user afforded no evidence of an intention to abandon the right. Wwrdv. Ward, 21 Law J. Rep. (n.s.) Exch. 3.S4; 7 Exch. Rep. 838. By a deed between A owner of Greenacre and B owner of Blacfcacre, it was agreed that A should have, during the first ten days of every month, for the purpose of irrigation, all the water of a stream which flowed through Greenacre into Blaokacre, and that at all other times the water should be under the controul and at the disposal of B, his heirs and assigns, and be allowed to flow in a free and uninter- rupted course towards and into Blaokacre, through a channel therein particularly described; and that the owner of Greenacre should cleanse and repair the said channel, with liberty to B, his heirs, &c. to do so on his default: — Held, that this deed operated as a grant to B of an easement of the watercourse therein described, at all times except the first ten days of each month, and that he thereby acquired a right in respect of that channel, and that an alteration of this channel was an injury to his right in respect of which B might maintain an action, although no actual damage had occurred. Northam V. MwrUy, 22 Law J. Rep. (n.s.) Q.B. 183; 1 E. & B. 665. Held, also, that a declaration describing the right as an easement to which the plaintifi^ was entitled by reason of his possession of Blackacre, without referring to the deed, was sufficient. Ibid. (C) Pleading and Evidence. Under a canal act mill-owners within a specified distance of the canal were entitled to use the water for the purpose of condensing the steam used for working their engines. In an action against such a mill-owner, the declaration charged that he abstracted more water than was sufficient to supply the engine with cold water for the purpose of condensing the steam, and that he applied the water to other and different purposes than condensing steam. The plea alleged an user by the defendant, as occupier of the mill in the declaration mentioned, of the water as of right and without interruption for twenty years for other purposes than condensing steam, to wit, for the purposes of supplying the boiler of the engine and of generating steam for working the engine, and of supplying a certain cistern, to wit, a cistern on the roof of a certain engine-house. The replication traversed the user as alleged in the plea. The evidence was, that the defendant was the occupier of two mills, adjoining to each other and occupied together, each having a separate steam- DiGEST, 1850—1855. engine. The " old mill" was erected in 1823, since which time the defendant had used the water from the canal for twenty years for the purposes mentioned in the plea in respect of the " old mill." The " new mill" was built in 1829, and the water had been used as alleged in the plea for less than twenty years in respect of that mill. There was no cistern on the roof of any engine-house, but there were various cisterns in and about the engine-house in the old mill through which the water passed. The jury found that the two buildings formed one mill, and that there had been a twenty years' user as of right by the defendant : — Held, that the issue was divisible, and that the defendant was entitled to have the verdict entered for him, except as to the supplying a cistern on the roof of the engine-house, as to which the plaintiff was entitled to enter a verdict with nominal damages. The Proprietors of the JHochdale Carnal v. JRadclife, 21 Law J. Rep. (h.s.) Q.B. 297; 18 Q.B. Rep. 287. Held, also, (upon motion for judgment non ohstante veredicto) that the plea was bad, as the canal company had no right to grant the water for other purposes than for condensing steam, and that no such right could consequently be inferred from a twenty years' user by the defendant. Ibid. Upon the trial of an issue whether the plaintiff had acquired ^ right to a watercourse by a twenty years' user as of right without interruption, evidence was offered that during the twenty years the defen- dants (a water company), who claimed to be entitled to divert the water, had penned it back from the plafhtiff's land and had laid an information under their local act against the plaintiff's servant, who had removed the obstruction and who was convicted and fined a shilling, which the plaintiff paid : Held, that this evidence was properly admissible as negativing an enjoyment by the plaintiff as of right. Baton V. the Swansea Waterworhs Co., 20 Law J. Rep. (N.S.) Q.B. 482; 17 a.B. Rep. 267. EAST INDIA COMPANY. [See Stats. 16 & 17 Vict. c. 95; 17 & 18 Vict. c. 77. and 18 & 19 Vict. c. 93.] There is no legal obligation upon the East India Company to pay to the commander-in-chief of the Queen's or of the native forces in India the arrears of pay due to him, as such commander-in-chief, and a mandamus to pay such arrears cannot be granted. Fx parte Napier, 21 Law J. Rep. (n.s.) a.B. 332- 18 Q.B. Rep. 692. The English Statute of Limitations, 21 .Jac. 1. c. 16, extends to India, and applies to Hindoos and Mahomedans as well as Europeans, in civil actions in the supreme court. Ruckmahoye v. Mottichvmd, 8 IVIoore, P.C.C. 4; 5 Moore's Ind. App. 234. ECCLESIASTICAL COURT. [Defamation Suits, see 18 & 19 Vict. c. 41. s. 2. and see Exeoution Pbaotioe.] The 54 Geo. 3. c. 68. s. 9, prohibits a proctor from permitting or suffering "his name to be in any 2 N 274 ECCLESIASTICAL COURT— EJECTMENT. manner used in any suit, the prosecution or defence of which shall appertain to the office of a proctor, or in obtaining probates of will, letters of administra- tion, or marriage licences" for the benefit of any other person. The 10th section enacts, " that in case any person shall, in his own name, or in the name of any other person, make, do, act, exercise, or perform any act, matter, or thing whatsoever, in any way apper- taining or belonging to the office, function, or prac- tice of a proctor, for or in consideration of any gain, fee, or reward, or with a view to participate in the benefit to be derived from the office, function, or prac- tice of a proctor, without being admitted and enrolled, he shall forfeit 501." : — Held, that, construing these two sections together, the acts intended by the latter section to be prohibited were those which were legally incident to the office of a proctor; not those which, though usually performed by him, were not of right incident to his office. And, therefore, that a registrar of an ecclesiastical court, who, in cases where there was no testamentary contest, had pre- pared the documents and done the acts necessary for obtaining letters testamentary and probates of wills, and other similar matters, had not thereby subjected himself to the penalty imposed by the 10th section. Stephensom v. Higginson, 3 H.L. Cas. 638. On the trial of an action brought on this statute, evidence from certain ecclesiastical courts was ten- dered, to shew that it was customary for the registrar to do these acts, and to receive fees on account of doing them : — Held, that such evidence was properly admitted. Ibid. ECCLESIASTICAL LAW. [See Burial — Cleboy — Chcrch — Chueoh- WARDENS AND OVERSEERS.] EJECTMENT. [See the Common Law Procedure Act, 15 & 16 Vict.c. 76. ss. 168—221. Also, Reg. Gen. Hil.term, 185.'?, rr. 112, 113, and 114, 22 Law J. Rep. (k.s.) xvi.] (A) When maintainable. (a) Lessor's Title. (1) In general. (2) Musi he a Legal Title. (3) Tenamts im, Commwn. (4) Assigns. ( 5 ) Notice to quit and Dema/nd of Possession. ( c ) Satisfied Terms. (B) Practice and Procedure. (a) Appearance amd Defence. ( 5 ) Service. ( c) Particulars of Premises. (d) Lease or Agreement under 1 Oeo. 4. c. 87. (e ) Judgment. (/) Execution — Writ of destitution. (C) Mesne Profits. (D) Pleading. (K) Costs. (A) When maintainable. (a) Lessor's Title. (1) In general. The plaintiff applied to the defendant for a lease of certain premises, intending at the time he applied to use them as a brothel. The defendant, relying upon the innocent, though false, misrepresentation of a third party, to whom he was referred by the plaintifl^, that the plaintiff was a respectable man, and on the plaintiff's own fraudulent representation that he in- tended to carry on the trade of a perfumer, granted him a lease. The plaintiff accordingly entered into possession and used the premises as a brothel, where- upon the defendant forcibly evicted him. The plain- tiff having brought ejectment to recover possession, — Held, that he was entitled to recover, for that the fraudulent misrepresentations were as to matters col- lateral to the lease, and did not avoid it. Feret v. HiU, 23 Law J. Rep. (k.s.) C.P. 185; 15 Com. B. Rep. 207. Land of L having been delivered to H upon elegit, H brought ejectment against L. It appeared at the trial that the elegit had issued upon a judgment entered up under a warrant of attorney given (before Stat. 17 & 18 Vict. c. 90.) by L to H, to secure (as appeared by the defeazance) sums to become payable on bills of exchange having less than twelve months to run, which were given upon a loan at usurious interest It being objected that, so far as regarded the land, the proviso in stat. 2 & 3 Vict. o. 37. a. 1. took the facts out of the protection of the act, as being a security upon land, and therefore the execution was bad as being founded on an usurious contract: — Held, that, supposing the judgment or execution bad (as to which, qucere), the objection could not be taken in this action, but that the proper course would have been to move to set the judgment or exe- cution aisde. Hughes v. Lvmley, 4 E. & B. 274. (2) Must be a Legal Title. [See Doe d. PatricTc v. Beaufort, title Canal and Canal Company, (A).] Where a railway company have complied with the provisions of section 86. and have entered upon and taken land within the prescribed period for exercising their compulsory powers, their continuance in posses- sion after the prescribed period, without having the compensation assessed and the land conveyed to them, is not unlawful, and an ejectment cannot be maintained against them under such circumstances. Doe d. Armislead v. the North Staffordshire Rail. Go., 20 Law J. Rep. (n.s.) Q.B. 249; 16 Q.B. Rep. 526. A railway company by their special act were em- powered to purchase land, and enter upon and use the same for the purposes of the railway. But they were not, " except by consent of the owner or occu- pier," to enter upon any such lands, until they should have paid, or deposited in the Bank of England, the purchase-money or compensation agreed or awarded to be paid for all interest in the same. The com- pany, with the consent of the owner (the plaintiff), entered in 1847 upon certain lands required for the purposes of the railway ; the amount of compensation having been by an agreement between them referred to an arbitrator, who in 1849 awarded a certain sum EJECTMENT; (B) Pbaotiob and Pbooedubb. 275 as compensation. No tender of a conveyance nor payment of the sum awarded had been made, and after the award, a demand of possession was served upon the company: — Held, that an action of eject- ment could not be maintained against the company ; the plaintiff's only right being to enforce the payment of compensation under the award. Doe d. Hudson V. the Leeds and Bradford Rail. Co., 20 Law J. Kep. (n.s.) Q.B. 486; 16 Q.B. Rep. 796. (3) Terumts in Common. Where in an action of ejectment by tenants in common, it appeared that other parties, whose numbers were not ascertained, were also jointly inter- ested with the lessors of the plaintiff in the premises, Held, dissenliente Platt,B., that the lessors of the plaintiff were not entitled to a general verdict, but that the jury were bound to say to what portion of the premises the lessors of the plaintiff were entitled. Doe d. Hellyer v. Kimg, 20 Law J. Rep. (n.s.) Exch. 301; 6 Exch. Rep. 791. (4) Assigns. A lease, granted under a power contained in a settle- ment, recited the title of the lessor, and shewed that he had only an equitable interest. A right of re- entry for a breach of the covenants in the lease wna reserved to the lessor and his assigns : — Held, first, that the lessee was not estopped from disputing the title of the lessor so disclosed in the lease ; and, secondly, that " assigns " meant assigns of the set- tlor ; and that although the right of re-entry could not be well reserved to the lessor, yet that the owners of the reversion under the settlement for the time being were entitled to take advantage of it as "assigns." Oreenawayi . Ha/rt, 23LawJ. Rep. (n.s.) C.P. 116; 14 Com. B. Rep. 340. (6) Notice to quit amd Demand of Possession. A mortgage contained a power of sale, and then a proviso and covenant by the mortgagee that no sale should take place, nor any means of obtaining possession of the premises be taken, until the expi- ration of twelve calendar months after notice in writing of such intention had been given to the mortgagor. It also contained a covenant by the mortgagee for quiet enjoyment by the mortgagor as tenant at will to the mortgagee, on payment of a yearly rent, in lieu of and as interest upon the mort- gage money. The mortgagor remained in possession of the premises, but no livery of seisin was made to the mortgagor. Prior to the cominencement of the action, there was a demand of possession, but no notice to quit was ever given to the mortgagor : — Held, that the effect of the deed was to create a tenancy at will only ; and that a demand of posses- sion without any notice to quit was sufficient to en- title the mortgagee or his assignee to maintain eject- ment. Doe d. Dixie v. Da/vies, 21 Law J. Rep. (n.s,) Exch. 60; 7 Exch. Rep. 89. (c) Satisfied Terms. By deed of settlement of 1813 freehold premises were limited to T S C for life, with remainder to such of his children as he should appoint ; in 1844 T S C duly exercised the power of appointment in favour of his eldest son, the plaintiff. In 1840 T S C, assum- ing and covenanting that he was seised in fee, sold the premises to D (through whom the defendant claimed) and two terms for a thousand years (origi- nally created for mortgage purposes), which in 1773, being then satisfied, had been assigned in trust to at- tend the inheritance, were at the same time, in 1844, duly assigned to a trustee for D, and D had no notice of the settlement of 1813. In 1778 the premises had been settled in strict settlement on the marriage of the plaintiff's grandfather, but neither in that set- tlement nor in the settlement of 1818 was any notice taken of the outstanding terms : — Held, first, that if a jury might, on the authority of Doe d. Putland v. ffUder, presume that the terms had been surren- dered, the Court could not make such presumption. Cottrell V. ffughes, 24 Law J. Rep. (n.s.) C.P. 107; 16 Com. B. Rep. 632. Secondly, that as the terms would have afforded the defendant protection against the settlement of 1813, if they had continued to subsist, they were within the exception in the 8 Sc 9 Vict. c. 112, s. 1, and must be considered as still subsisting. Ibid. Semile That the Court would not now act on the authority of Doe d. PuUand v. Milder. Ibid. (B) Praotiob and Peoobddre. (a) Appea/rance a/nd Defence. Upon an application under section 127. of the Common Law Procedure Act, 1852, to be allowed to appear and defend an ejectment in respect of a part of the premises sought to be recovered, the Court will not consider nice questions as to the ap- pliffant's right of possession. It is enough if a primd facie case be shewn by affidavit, stating that the applicant is in possession by himself or his tenant. Croft V. Lwmley, 24 Law J. Rep. (n.s.) CI.B. 78; 4 E. & B. 608. Where, therefore, in an ejectment to recover the Opera House in the Haymarket, it was stated upon affidavit that some of the boxes had been let to the applicant for a term of years, with free and uninter- rupted ingress, egress and regress, and the full use of the same by tickets of admission during the nights of public performance (except balls and masque- rades), and all profits and advantages and appur- tenances belonging to the said boxes ; with a cove- nant for quiet enjoyment ; and further, that after the execution of the lease, the applicant entered into possession of the boxes and fitted them up, and had ever since continued and still was in possession of the same, with all the rights, privileges and appurten- ances thereto belonging, and that the applicant was advised that it was material for the protection of his interests that he should be permitted to defend, — Held, that enough appeared to entitle the applicant to be allowed to appear and defend the action. Ibid. But where the applicant was a tenant by elegit, who had recovered the premises by ejectment against the defendant, but had never been put into actual possession, the Court declined to permit him to come in and defend. Ibid. Under the Common Law Procedure Act, 1852, s. 172, which provides that any other person not named as a defendant in a writ of ejectment, shall by leave of the Court or a Judge, be allowed to ap- pear and defend on filing an affidavit shewing that he is in possession of the land either by himself or his tenant, a landlord who is in possession by his tenant 276 EJECTMENT; (B) Pkacticb and Procedure. is entitled to appear as a matter of right, and the condition of giving security for costs cannot be im- posed, although he be resident abroad — per Pollock, C.B., Piatt, B., and Martin, B.; Parke, B. dubitante. Btdler v. Meredith, 24 Law J. Eep. (n.s.) Exch. 239; 11 Exch. Rep. 85. (5) Service. Where a declaration in ejectment has been served previously to the passing of the Common Law Pro- cedure Act, 15 & 16 Vict. c. 76, proceedings are to be continued according to the old form. Doe d. Smith V. Roe, 22 Law J. Kep. (lf.s.) Exch. 17; 8 Exch. Rep. 127. Service upon one of two joint tenants, the notice being addressed to that one only, is not sufficient. Doe d. Brahy v. Roe, 10 Com. B. Rep. 663. Q^iKBre, whether the affidavit (required bythell2th rule of Hilary Term, 1853,) of service of the writ of ejectment under the 170th section of the Common Law Procedure Act, 15 & 16 Vict. c. 76, should shew (as under the old practice) that the nature and object of the service were explained to the party served. Edwards v. Griffith, 15 Com. B. Rep. 397. At all events, an irregularity in that respect is waived by a subsequent attornment. Ibid. (c) Particulars of Premises. The Court will only under special circumstances grant an order for particulars of the premises sought to be recovered in an action of ejectment. Doe d. Saxton V. Twrner, 11 Com. B. Rep. 896. (d) Lease and Agreement imder 1 Geo. 4. c. 87. The lease or agreement which the landlord must produce in court, under the 1 Geo. 4. c. 87. s. 1, on a motion calling upon the tenant to enter into the undertakings and give the bail prescribed by that sec- tion, should be annexed to the affidavits in support of the motion. Doe d. Poucan v. Roe, 2 L. M. & P. 322. (c) Judgment. The Court refused a rule nisi for judgment against the casual ejector in a country cause where two terms had been allowed to elapse since service of the declaration, by reason of negotiations pending be- tween the parties as to the settlement of the action ; it not being shewn that the tenant had taken advan- tage of the delay to avoid fresh service. Doe d. Panton v. Roe, 21 Law J. Rep. (n.s.) C. P. 160 ■ 12 Com. B. Rep. 267. A rule for judgment as in case of nonsuit cannot be granted in an action of ejectment, since the Common Law Procedure Act came into operation. Doe d. Leigh v. Holt, 21 Law J. Rep. (n.s.) Exch. 335; 8 Exch. Rep. 130. (f) Execution — Writ of Restitution. If a judgment in ejectment be irregularly ob- tained, and possession delivered under it, and then the judgment be set aside, the Court will, in the first instance, grant a rule requiring possession to be restored ; but if such rule become ineffectual by reason of the party on whom it is to be served having absconded, a writ of restitution will be awarded. Doe d. Whittington v. Hards, 20 Law J. Rep, (n.s.) Q.B. 406. -It is not necessary that a writ of restitu- tion should be founded upon matter of record. Ibid. Writs of habere facias possessionem in ejectment are within the 3 & 4 Will. 4. c. 67. s. 2. and are properly made returnable immediately after the execution thereof. Doe d. Sudson v. Roe, 21 Law J. Rep. (n.s.) a.B. 359; 18 Q.B. Rep. 806. Where a rule of Court ordered possession of lands to be restored to A, B and C, or to D, their tenant, a demand by A alone, without any special authority from B and C, was held sufficient. Cortett d. Cly- mer v. NichoUs, 2 L. M. & P. P.C. 87. Upon a refusal to comply with that demand, the Court granted an attachment, although the affidavits in support of the rule nisi did not negative that pos- session had been delivered to B and C, or to D. Ibid. Semble — that such omission would be fatal, where the rule is a rule absolute in the first instance. Ibid. (C) Mesne Profits. [See Matthew v. Osborne, title Copyhold.] A party having mortgaged his premises to the plaintiff in 1846, and being allowed to remain in possession, let them in 1848 to the defendant. In October 1849, the plaintiff, without having made an entry on the premises, or having been otherwise in possession, brought ejectment against the defendant, who gave his consent to a Judge's order dated the 31st of October. The order directed proceed- ings to be stayed till the 15th of November then next, the tenant in possession undertaking on that day to give up possession to the plaintiff, and that in default the plaintiff should be at liberty to sign final judgment and issue execution against the tenant for the costs of such judgment, execution, writ of pos- session, costs of levy, &c. On the 15th of Novem- ber the plaintiff first entered into possession of the premises and brought an action for mesne profits accrued between November 1848 and the 15th of November 1849: — Held, that the plaintiff not having been in possession of the premises prior to the 15th of November could not maintain the action, his entry on that day not having relation hack to his title as mortgagee; and that the Judge's order made no difference in the case. Litchfield v. Ready, 20 Law J. Rep. (n.s.) Exch. IS ; 5 Exch. Rep. 939. The doctrine of entry by relation applies to the case of disseisor and disseisee only. Ibid. In an action for the mesne profits of a copyhold, to which the defendant pleads not possessed, the plaintiff may reply, by way of estoppel, a judgment in ejectment in his favour, and if he does not reply it, the judgment is not conclusive evidence of his title. Matthew v. Osborne, 22 Law J. Rep. (h.s.) C.P. 241; 13 Com. B. Rep. 919. Trespass for mesne profits; pleas, first, not pos- sessed; secondly, that before the said times when, &c., W was seised in fee, and demised for twenty-one years to T, who demised to the defendant, who entered by virtue of the demise. Replication, by way of estoppel, as to trespasses since the 26th of October 1858, setting out a writ in ejectment, in which the plaintiff was claimant, and dated the 26th of October 1853, directed to the defendant as the tenant in possession. Averment of judgment thereon by default, and entry by the plaintiff by virtue of the EJECTMENT— EMBEZZLEMENT. 277 judgment : — Held, on demurrer, a good replication to both pleaB ; and that it was not necessary to aver notice of the proceedings in ejectment to the defen- dant, or that a writ of posseasion was issued or exe- cuted; and that entry by the plaintiff, if necessary, was sufficiently averred. WUkvnson v. Kirby, 23 Law J. Rep. (n.s.) C.P. 224; IS Com. B. Bep. 430. Held, also, that the estoppel was from the date of the writ, and that the plamtiff's title would be pre- sumed to continue until by rejoinder it was shewn to have determined. Ibid. SenMe that section 75. of the Common Law Procedure Act applies to affirmative pleadings in answer to the action, and not to pleadings by way of denial of the cause of action. Ibid. In ejectment by landlord against tenant under 15 & 16 Vict. 0. 76. 8. 214, mesne profits may be re- covered although not specially claimed in the writ or issue. Smith v. Telt, or Tett, 23 Law J. Eep. (n.s.) Exch. 93; 9 Exch. Rep. 307. (D) Pleading. The 83rd section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), which permits equitable defences in " all causes," applies only to causes where there are pleadings, and therefore does not apply to the action of ejectment, in which all pleadings are abolished by the 168th and 178th sec- tions of the Common Law Procedure Act, 1862 (15 & 16 Vict. c. 76). Neave v. Avery, 24 Law J. Rep. (h.s.) C.P. 207; 16 Com. B. Rep. 328. By the 178th section of that act, the issue in ejectment is to be made up by the plaintiiF without pleadings ; and therefore, where the plaintiff, instead of making up the issue, demurred to an equitable plea which the defendant had pleaded, the Court struck the demurrer out of the paper; leaving the plaintiff to apply for leave to strike out the plea and make up the issue. Ibid. (E) Costs. To entitle a plaintiff in ejectment to call upon parties who are strangers to the record to pay the costs, it must be clearly shewn that the defence was conducted by them for their own benefit in the name of a pauper defendant : it is not enough to shew that they are interested as equitable mortgagees of part of the premises, and that they have endeavoured to make terms with the plaintiff after judgment signed. Anstey v. Edwards, 16 Com. B. Rep. 212. After a verdict for the plaintiffs in an action of ejectment against the tenants in possession of the premises, it appeared upon affidavit that the appear- ance to the action in the names of the tenants in possession had been entered, and the defence of the action conducted by an attorney employed by H and S, who had themselves no interest in the pre- mises, but had conducted the defence solely for the benefit of another person whom they reasonably believed to be the person really entitled to the pre- mises : — Held {Erie, J. differing in opinion), that H and S would have been before thfe passing of the Common Law Procedure Act, 1852, liable to pay the plaintiffs' costj in the action, and that act had made no difference in the former practice, and, therefore, that the plamtiffs were entitled to a rule fpr the purpose of enforcing the payment of such costs. And, per Erie, J., that the application was to be considered as against strangers, so far as juris- diction was concerned, and therefore, that the Court had no power to make the rule absolute for enforcing payment of the costs ; the proper proceeding on the part of the plaintiffs for any injury occasioned by the conduct of the defence being (if at all) by action. Hutehi/nson i. Greenwood, 24 Law J. Rep. (n.s.) Q.B. 2; 4 E. & B. 324. ELEGIT. [See Ejectment — Execotion.] In a suit for enforcing securities it is the duty of the creditor to prove that his security is existing, and he is answerable for his acts, neglects, and omissions; and a creditor, by elegit, having taken from a trustee for sale a conveyance in fee of a part of the lands of which he was in possession under extents issued upon two elegits, his tenancy under them held to be extinguished in the remainder of the estate, and the judgments on which they were issued were held to be satisfied. Mele v. Lord Bexley, 22 Law J. Rep. (n.s.) Chanc. 1007; 17 Beav. 14. If a term in gross exists on an estate, and has not been attendant upon the inheritance, no surrender will be presumed, and such a term is liable to an extent; but the judgments having been satisfied by purchase of part of the estates extended, the ten- ancy by elegit was gone, and the parties entitled may enter. Ibid. Though the elegits are satisfied, an outstanding unsatisfied claim will still be considered in taking the accounts under a trust for the benefit of incum- brancers. Ibid. EMBEZZLEMENT. [See Stat. 14 & 15 Vict. t. 100. s. 13.] (A) The Offence, in qeneral. (B) Receipt by Servant fob and on acoodnt OP HIS Master. (C) Vende. (D) Evidence. (A) The Offence, in oeneral. The prisoner was a carrier, whose only employ- ment was to carry unsewed gloves from a glove manufacturer at A, to glove-sewers who resided at B, to carry back the gloves when sewed, and to receive the money for the work and pay it to the respective glove-sewers, deducting his charge. On some occasions, instead of paying over the money received for certain of the glove-sewers, he denied the receipt of it, and appropriated it to his own use : — Held, that he could not be considered the servant of the persons defrauded, and therefore was not liable to be convicted of embezzlement, for his offence was a mere breach of trust, as he was a bailee of the money. Megima v. Gibhs, 24 Law J. Rep. (N.s.) M.C. 62; 1 Dears. C.C. 445. A master suspecting his shopman of defi:auding him gave a friend a marked crown-piece to spend at his shop. The friend went to the shop, bought an 273 EMBEZZLEMENT. article of the shopman, and paid for it with the marked coin. The shopman kept the coin, and did not account for it, and it was found on him : — Held, that the shopman was guilty of embezzlement, and not of larceny. Segina v. Gill, 23 Law J. Rep. (NS.) M.C. SO; 1 Dears. C.C. 289. The prisoner, who was clerk to the prosecutor, was indicted in three different counts for embezzling certain monies belonging to his master. The evidence shewed that the prisoner had received at different times several sums of money from the prosecutor, -a dealer in skins, for the purpose of purchasing skins. The prisoner obtained the skins on credit, and applied the money to his own use, but debited prosecutor in his day cash book with several sums of money as having been paid for the skins. The jury found the prisoner not guilty of embezzlement, but guilty of larceny : — Held, that the conviction was wrong. Segina V. Ooodenough, 1 Dears. C.C. 210. (B) Receipt by Sektant fob and on accoont of HIS Master. "W engaged with a railway company to find horses and carmen to deliver the company's coals. He also contracted that he or his carmen should day by day duly account for and deliver to the company's coal manager all monies received from customers in payment of coals. The delivery notes and re- ceipted invoices of the coals were handed to Ws carmen by the company's officers. The delivery notes were entered by W in his book, the receipted invoices being given to the customers. The prisoner was a servant of W and was employed by him in the delivery of coals of the company. It was the pri- soner's duty to pay over direct to the clerk of the company any money he might receive from cus- tomers. Such monies never formed items of account between W and the company. The prisoner appro- priated to his own use a sum of money which he had thus received in payment for some of the company's coals delivered by hira as servant of W: — Held, by a majority of the Judges, that these fiicts shewed that such a privity existed between the prisoner and the company as to make the latter the company's agent to receive the money and to pay it over to them; that the money could not be considered as money received on account of W, but on account of the company, consequently that the prisoner could not be indicted as Ws servant for embezzling Ws money. Jiegina v. Beaumont, 23 Law J. Rep. (n.s.) M.C. 54; 1 Dears. C.C. 270. The prisoner, the miller of the mill in a county gaol, was appointed by the county magistrates, at a weekly salary, which was paid him by the governor of the gaol out of the county rates, who received the money for that purpose from the county treasurer. It was the duty of the miller to direct persons bringing grain to be ground to obtain from the porter a ticket specifying the quantity of the grain, and the ticket was the miller's order for receiving the grain. He was to receive the grain with the ticket, to grind the grain, to take the money for the grinding, and to account for it to the governor, who had to account to the treasurer. The miller had no right to grind any grain at the mill for his own benefit. The pri- soner ground some grain for certain persons who never obtained a ticket, and who were not directed by the prisoner to get one, and he applied the money paid for the grinding to his own use : — Held, that the prisoner could not be convicted of embezzlement, as the conclusion to be drawn from the facts was that he had made an improper use of the mill by grinding the corn for his own benefit, and consequently that he did not receive the money on account of his mas- ters, whoever they might be. QiMere — who were his masters." Regina v. Harris, 23 Law J. Rep. (n.s.) M.C. 110; 1 Dears. C.C. 344. (C) Venue. It was the duty of the prisoner to go into the county of D every Monday, and sell goods on account of his master, and receive the money there, and to return with it to his master in the town of N on a Saturday. The prisoner received money for his master in the county of D, but did not return on the following Saturday, or at all, to hie master. There was no evidence what became of him until two months after, when he was met in N by his master, who asked him what he had done with the money ; he said that he was sorry for what he had done, and that he had spent it: — Held, that there was evi- dence for the jury of an embezzling in the town of N. Regvna v. Mwrdock, 21 Law J. Rep. (n.s.) M.C. 22; 2 Den. C.C. 298. (D) Evidence. W entered into the following agreement with C : " W engages to take charge of the glebe lands of C, his wife undertaking the dairy and poultry, at 15s. ■■\ week, till Michaelmas 1850, and afterwards at a salary of 25Z. a year, and a third of the clear annual profit, after all expenses of rent and rates, labour and interest on capital, &c., are paid, on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which time the cottage to be vacated by W, who occupies it as bailiff, in addition to his salary" : — Held, that this agreement consti- tuted the relation of master and servant between C and W, and not that of partners; that W was not a menial servant, but a labourer; and that the agree- ment was admissible in evidence, though unstamped, as it fell within the exemption in the Stamp Act as an agreement for the hire of a labourer. Hegina v. WorOey, 21 Law J. Rep. (n.s.) M.C. 44; 2 Den. C.C. 333. The firm of S & Co. kept a book containing in one column the names of their creditors, and oppo- site to them in another column the sums due to each respectively. The course of business was, that when any person called and received money from S & Co. on behalf of a creditor, he wrote his name in an intermediate column between the name of the cre- ditor and the sum due to him. No other receipt was taken by S & Co. The prisoner, who was in the employ of a creditor of the firm, went to S & Co. and received from them a large sum due to his em- ployers, and wrote his name in the blank space in the intermediate column in the ordinary way. On an indictment against him for embezzling the money, a clerk of S & Co. proved that he paid the money to a person who wrote his name in the book; evidence of the course of busmess as to the signing the book was given, and the entry, consisting of the creditor's name, the signature, and the sum, was tendered to prove that the signature was in the prisoner's hand- EMBEZZLEMENT— ERROR. 279 writing. It was objected that the entry was a receipt, and not being stamped was inadmissible either in whole or in part. The Judge received the entry and allowed it to be read to the jury, but only for the purpose of proving by means of the signature that the prisoner was the party to whom the clerk had paid the money : — Held, that the entry was a receipt and required a receipt stamp; that being unstamped it ought not to have been read to the jury at all, even for the collateral purpose of identi- fying the prisoner, as it had a material effect upon the direct question in issue whether the prisoner had received the money ; but that the prisoner's signature alone might have been proved for the purpose of identification. Regma v. Overton, 23 Law J. Eep. (N.S.) M.C. 29; 1 Dears. C.C. 308. EEROR. [See Stat. 15 & 16 Vict. u. 76. ss. 146- Stat. 17 & 18 Vict. c. 125. ss. 32. and 35.] (A) Where it lies. (B) Quashing and setting aside. (C) Practice and PROOEDnRE. (a) In general. { b) Error to the House of Lords. (c) Special Case. {d) Bill of Exceptions. (D) Costs. .176, and (A) Where it lies. [See post, (C)(c)and {d).] Error will lie on a nonsuit. Hitchms v. Hollings- worth, 7 Moore, P.C.C. 228. (B) Quashing and setting aside. Judgment having been given against the defen- dants on an indictment for conspiracy and obtaining money by false pretences, which had been removed by them into the Court of Queen's Bench, they brought a writ of error to the Exchequer Chamber, assigned errors, and demanded a joinder in error; and the prosecutor not joining in error, they obtained an order of a Judge, on which a rule of the Court of Exchequer Chamber was afterwards drawn up, that judgment be signed against the defendant in error, and judgment of reversal was entered accordingly. Subsequently, a rule was obtained in the Court of Queen's Bench quashing the writ of error, on the ground that the writ was sued out with a view to a compromise, and for the purpose of effecting such compromise. This rule was entered on the record. The defendants sued out a second writ of error, and assigned as special grounds of error various objections to the order of the Court of Queen's Bench. There was also a general assignment that there were divers other errors on the record : — Held, that the Court of Exchequer Chamber had no autliority to examine into the sufficiency of the rule of the Court of Queen's Bench quashing the first writ of error by virtue of its equitable jurisdiction, though the rule was improperly set out on the record ; that, as the writ was quashed, the judgment which had been pronounced by the Exchequer Chamber upon it was void ; that the Court of Exchequer Chamber would on motion set aside the judgment as it was void, though there was no application to set aside the writ of error itself; that the assignment of errors on the second writ was good, there being a general assignment of error, though the objections to the order of the Court of Queen's Bench were mere surplusage. Alleyne v. Regina, 24 Law J. Eep. (n.s.) Q.B. 282; 1 Dears. C.U. 505. Where a writ of error is sued out upon a judgment of the Court of Queen's Bench in a criminal prose- cution, for the purpose of enabling the parties to effect a compromise of such prosecution, that Court has the power under the 12 & 13 Vict. c. 109. s. 39, to set aside such writ of error, and will exercise that power; and after the writ of error has been so set aside by a Court of competent jurisdiction, the Court of Exchequer Chamber will set aside a judgment, signed thereon by order of a Judge, for want of a join- der in error. Regma v. AUeyne, 1 Dears. C.C. 505; 4 E. & B. 186. (C) Practice and Procedure. (a) In general. After issue joined on error in law either party may set down the case for argument four days before the day of hearing. The South-Eastern Rail. Co. v. the South- Western Rail. Co., 22 Law J. Eep. (h.S.) Exch. 72; 8 Exch. Rep. 367. Upon the argument of a writ of error on the ground that a plea which has been found for the defendant ia bad in law, it is no ground for a venire de novo that the finding upon that plea is inconsistent with the finding on another issue. Cooper v. Pairker (in error), 15 Com. B. Eep. 822. A verdict was found for the plaintiff in error, on error in fact coram nobis, that he being an infant had appeared in this suit by attorney. With a view to obtain reversal of the judgment, the plaintiff moved to have the cause put down in the paper for argu- ment : — Held, that this was a proper course accord- ing to practice. Jackson v. Marshall, 24 Law J. Rep. (U.S.) Q.B. 143. The 146th and following sections of the Common Law Procedure Act, ] 8S2, which prescribe a new mode of proceeding to error " in any cause," do not extend to informations in the nature of a quo wa/r- ranto, in respect of which the fiat of the Attorney General must still be obtained, and a writ of error sued out according to the former practice. Begina V. Scale and Regina v. Alford, 24 Law J. Eep. (n.s.) Q.B. 221. (5) Error to the Home of Lorrds, In a writ of error where no one appeared for the plaintiff in error, the counsel for the defendant in error was required to state the nature of the case, and the judgment of the Court below was then affirmed, with costs. Jones v. Camnock, 3 H.L. Cas. 700. Upon a suggestion being entered of error to the House of Lords from a judgment of the Exchequer Chamber, affirming the judgment of this Court, the Master will be directed, under the 155th section of the IS & 16 Vict. c. 76, to leave the judgment roll with the clerk in parliament until the c^se in error has been determined. Lame v. Hooper, 23 Law J. Rep. (n.s.) Q.B. 372; 3 E. & B. 731.. (c) Special Case. The 32nd section of the Common Law Procedure 280 ERROR— ESTOPPEL. Act, 1854, permitting parties to bring error on a judgment upon a special case, unless the parties agree to the contrary, applies only to special cases agreed to subsequently to the act coming into opera- tion ; and does not warrant error being brought on a special case which, though agreed to be drawn up previous to the act, was not finally settled until after the statute was in force. Sughes v. Lvmley (in error), U Law J. Rep. (n.s.) Q.B. 29; 4 E. & B. 358. (d) £iU of Exceptions. If, upon the trial of a cause, the Judge directs a nonsuit, and the plaintiff does not appear when called, and judgment of nonsuit is therefore entered against him, he cannot tender a bill of exceptions and bring a writ of error, assigning for error that the Judge improperly directed the nonsuit. The proper course is for the plaintiff to appear and require the Judge to direct the jury in point of law in his favour, and upon the Judge refusing to permit him to ap- pear, and nonsuiting him against his will, or refusing to direct the jury in his favour, the plaintiff may tender a bill of exceptions, and bring a writ of error. Corsar, or Oossar, v. Reed, 21 Law J. Rep. (n.s.) Q.B. 18; 17 Q.B. Rep. 540. (D) Costs. If the plaintiff below recovers judgment by default, and the defendant below, after payment of the debt and costs sues out a writ of error on which the former Judgment is affirmed in the Court of Exchequer Chamber, the plaintiff below is not entitled to his costs in error under the statute 3 Hen. 7. c. 10, as he has not been delayed in the execution of his judgment. SutJierlamd v. Mills, or Wills, 20 Law J. Rep. (n.s.) Exch. 28; 5 Exch. Rep. 980. A plaintiff in the Queen's Bench, after judgment there for defendant, suggested error in the Exchequer Chamber, which defendant denied. Plaintiff resided abroad out of the jurisdiction of the English Courts. He had, by order of the Queen's Bench, given secu- rity below for costs : and the costs incurred in that court exceeded the amount for which security had been given. On the application of the defendant, after denial of error, the Court of Exchequer Cham- ber ordered the plaintiff to give security for costs in error to the satisfaction of the Master of the court below, proceedings to be stayed in the meanwhile. Baugleux v. Swayne, 3 E. & B. 829. The 148th section of the Common Law Procedure Act, 1852, which abolishes the writ of error and makes the proceeding to error a step in the cause, does not alter the law as to the liability to costs in error; and, therefore, where judgment was simply reversed by a Court of error without any mention of costs, the party succeeding was not entitled to have his costs in error taxed as costs in the cause under the 69th of the Regulse Generates, Hil. term, 1853. Fisher v. Bridges, 24 Law J. Rep. (n.s.) Q.B. 165; 4 E. & B. 666. And see Marshall v. Jackson, in a note to that case. That rule provides only for the mode of taxing costs where costs are given by law, and has no fur- ther operation. Ibid. ESCHEAT. T C, the executor of S E, purchased the equity of redemption of an estate for 6151., subject to a mort- gage in fee (which contained a power of sale) to secure the repayment of 8001.; this security was transferred to Messrs. A and D. T C was illegiti- mate. He died unmarried and intestate in Decem- ber 1831. S B purchased the estate, which, on the 12th of August 1834, was conveyed to him in fee by A and D, the mortgagees, and by S A, the adminis- tratrix de bonis nan of S E. The deed recited that T C had purchased the estate in part with the money of S E. S B, the purchaser, died, and his estate was sold under the direction of the Court. Objec- tions were taken to the title, because the mortgagees had not executed their power of sale under the mortgage, and because no person claiming through T C had conveyed the estate or was a party to the suit; because there was no evidence shewing that T C was illegitimate, or that he died without heirs, or that he was a trustee for S E, and if those state- ments were true, the estate had escheated to the Crown; and because, as the equity of redemption had not been foreclosed, it was assets for the pay- ment of his debts, and his personal representative was not before the Court. The Master reported that a good title could not be made. Upon exceptions to his report, Held, that the evidence of T C being a mere trustee was not such that a purchaser could be compelled to take the title ; that, assuming T C had a beneficial title, the equity of redemption had not escheated to the Crown; that, as the equity of redemption might possibly be assets for the payment of the debts of T C generally and on covenant, no title could be made in the absence of the legal personal representative of T C. If it could, then mortgagees having the legal estate might hold the whole property against creditors discharged from the equity of redemption. The exceptions were, there- fore, overruled ; but, as it was on grounds different from those on which the Master had relied, without costs. Beale v. Symonds, 22 Law J. Rep. (n.s.) Chanc. 708; 16 Beav. 406. Under the Escheat Act trust monies may be followed into land against the lords of the fee ; and if it were otherwise, the estate in the hands of the lord by escheat is liable to the debts of the person whose estate has escheated. Hughes v. Wells, 9 Hare, 749. ESTOPPEL. [See Bond — Deed — Evidence — Pleadings.] In an action on a covenant for the payment of an annuity, the defendant, the grantor, is estopped from pleading that the annuity was granted for the fraudu- lent purpose of multiplying votes. Phillpotts T. Phillpotts, 20 Law J. Rep. (n.s.) C.P. 11; 10 Com. B. Rep. 85. Where a declaration set out a libel in which it was alleged that the plaintiff was tried for murder, and that " it was understood that the counsel for the prosecution were in possession of a damning piece ot evidence, viz., that he had spent nearly the whole ot the night preceding the duel in practising pistol- fiimg " ; and the plea stated that the plaintiff had ESTOPPEL. 281 committed murder, but did not shew that he had practised pistol-firing the night before, it was held that the justification was insufficient Sdsham v. Blaxkwood, 20 Law J. Rep. (n,s.) C.P. 187; 11 Com. B. Rep. Ill, Semite — that a replication to such a plea by war of estoppel, stating that the plaintiff was tried and acquitted, is not good. Ibid. Case. The declaration stated that the plaintiff and the defendant were attornies; that the defendant falsely represented to the plaintiff that he, the de- fendant, was authorized by one Fennell to bring an action, in Fennell's name, against one C and B, and that he was authorized by Fennell to retain the plaintiff to bring the action; that the plaintiff brought the action; that the defendant was not so authorized, and that the plaintiff was compelled to discontinue the said action and to pay costs. Other counts charged the defendant with similar acts with reference to other parties. Plea — that the plaintiff was not employed, and did not act as such attorney. Replication, that the plaintiff ought not to be ad- mitted to plead the said plea, because a Judge's order was made for taxing the plaintiff's bill of fees in the action, in the declaration mentioned, delivered to the defendant and one Oldershaw and one A. Jenkinson, and for the Master to certify what was due; that the defendant and A. Jenkinson should be at liberty to dispute their retainer; that the Master allowed 196;. 13s. Bd.; that the plaintiff sued the defendant, Oldershaw and A. Jenkinson for deter- mining the question of the retainer and recovering the sum of 19SI. 13s. Sdi-, that the question of the retainer being referred to the Master, he certified that such retainer by the defendant, Oldershaw and A. Jenkinson was • proved, whereupon the plaintiff signed judgment against the three parties for 247t 3s. lOd.; and that the plaintiff's bill of fees was for fees due to him for work done by him in bringing the actions in the declaration mentioned : Held, that the replication did not state a case of estoppel, and was bad. Callow v. Jenkinson, 20 Law J. Rep. (N.S.) Exch. 321; 6 Exch. Rep. 666. Tlie Westminster Improvement Commissioners were authorized by several acts of parliament to borrow such sums of money as they should think necessary for the purposes of the act, and to give bonds for the same, and which bonds were assign- able. In an action by the plaintiff, as transferee of one of such bonds, the condition of which recited that the defendants had, in pursuance of the said acts, borrowed of one T P 5,000/. for enabling them to carry the said acts into execution, the defendants pleaded that they did not borrow the said sum of the said T P, or any part thereof, for the purposes of the said acts, and that they were not authorized to make the said bond, and that the same was made contrary to the provisions of the said acts, of which the said T P and the plaintiff had notice at the time the bond was made and transferred to the plaintiff: — Held, upon general demurrer, that the plea was bad. Morton v. the Westminster Improve- ment Gommissioners, 21 Law J. Rep. (n.s.) Exch. 297; 7 Exch. Rep. 780. The defendants also pleaded, that at and before the bond was made, certain persons, namely, C M and W M, were entitled to receive from the defen- dants certain bonds; that the said T P and others Digest, 1850—1855. conspired fraudulently to procure for T P one of the said bonds to which the said C M and W M were entitled, and that by means of such conspiracy and fraud they procured the said C M and W M to authorize the defendants to give to the said T P one of the said bonds they were so entitled to; and that the bond sued upon was thereupon given to T P by the defendants, and that they the defendants had never borrowed any sum of money from the said T P, of all which premises the plaintiff at the time of the transfer to him of the said bond had notice : —Held, bad on general demurrer, because the de- fendants could not set up as a defence the fraud that had been committed upon C M and M W, by whose directions they had, in pursuance of their contract with them, given the bond to T P. Ibid. Mandamus to complete a line of railway, autho- rized to be constructed by a special act incorporating the provisions of the Lands Clauses Consolidation Act (8 Vict. c. 18). Return, that the undertaking authorized by the special act was intended to be carried into effect by means of a capital to be sub- scribed by the promoters, and that the whole of such capital had not been subscribed under a contract as required by the 8 Vict. c. 18. s. 16, or otherwise, and that the defendants had not been able to pro- cure the subscription of such capital, and that the lands required could not be obtained without the ex- ercise of the compulsory powers. Plea, by way of estoppel, that the defendants had given notices to other landowners on other parts of the line, in exer- cise of the compulsory powers, and that proceedings to arbitration, under the 8 Vict. c. 18, had been taken upon those notices: — Held, that the return was a good answer to the writ; that the plea alleging what was res inter alios acta could not operate as an estoppel; and that a peremptory mandamus could not, therefore, be awarded. Regima v. the Amber- gale, Nottingham and Boston amd Eastern Junction Rail. Go., 22 Law J. Rep. (N.s.) Q.B. 191 ; 1 E. & B. 372. Plaintiff, being a widow, but not executrix or ad- ministratrix of her former husband, was in possession of furniture which had formerly belonged to him. She afterwards married B, whom she supposed to be a single man, and together with him occupied the house in which the furniture was. In order to raise money to pay off a distress for rent, B sold to the defendant the furniture. The plaintiff actively in- terfered in this transaction, believing herself to be the wife of B. Shortly afterwards B was convicted of bigamy in marrying the plaintiff. The plaintiff then sued the defendant for the value of the furni- ture : — Held, that she could not recover as she had no title to the furniture ; and that, even if it were her property, she was bound by her concurrence in the sale of it by B to the defendant. Waller v. Draheford, 22 Law J. Rep. (ir.s.) Q.B. 274; 1 E. & B. 749. Declaration, alleging a wrongful imprisonment in the remand ward of the Queen's Prison. Plea, a. justification under two writs of execution to the sheriff of Yorkshire, and a habeas corpus, changing the imprisonment of the plaintiff from York Castle to the Queen's Prison. New assignment, stating a petition to the Insolvent Court, a reference of the petition to the county court, and thereupon an order of adjudication and a waraant of the county court 20 282 ESTOPPEL, Judge, delivered to the gaoler of York Castle, re- quiring him to discharge the plaintiff on the 12th of April 1852; that the plaintiff was afterwards com- mitted by habeas corpus with the said warrant to the custody of the defendant, with the detainere, and that the defendant imprisoned the plaintiff in the said remand ward after the said 12th of April. Plea, denying the commitment to the defendant's custody with the warrant, and the possession of the order of adjudication or warrant. It appeared upon the trial that the defendant, being in custody of the sheriff of Yorkshire, under two writs of ca. sa., petitioned the Insolvent Court, under the 1 & 2 Vict. c. 110, and his petition was referred to the County Court of Yorkshire. The county court Judge made an order for the discharge of the plaintiff on the 12th of April 1852, and a warrant in the terms of such order was delivered to the gaoler of York Castle, where the plaintiff was imprisoned. The plaintiff after- wards caused himself to be removed by habeas corpus to the Queen's Prison, a copy only of the warrant being sent with the plaintiff to the keeper of the Queen's Prison, and the plaintiff was there- upon imprisoned in the " remand ward " of the Queen's Prison. The defendant required that the plaintiff should obtain an order for his discharge on the 12th of April, and applications were in conse- quence made to the county court Judge and a Judge at chambers, who refused to make such an order, as being unnecessary ; and three days after the 12th of April the plaintiff was discharged without any order. The jury found that the defendant had only a copy of the warrant, and acted upon it as his sole autho- rity, and that he had led the plaintiff to believe that he was really acting upon the original warrant : Held, that the rule of law which prevents a party who makes a wilful misrepresentation, and induces another to a«t upon a belief in the truth of such misrepresentation to his prejudice, from afterwards disproving it, did not apply so as to prevent the defendant from proving that he had received only a copy of the warrant, and had acted upon it. Howard V. ffudson, 22 Law J. Rep. (h.s.) Q.B. 341; 2 E. & B. 1. Held, also, that the plaintiff's imprisonment in the " remand ward " was not any part of the cause of action, and was, therefore, no ground for judg- ment non obstante veredicto. Ibid. Upon the trial of an indictment against the inha- bitants of the township of H, for the non-repair of a highway, a prior judgment of Quarter Sessions upon a presentment by a Justice under the 13 Geo. 3. c. 78. for non-repair of the same highway by H, was put in. The presentment alleged that the highway was in H, and that H was liable to repair it. It also appeared by the judgment that two of the inhabitants of H had appeared and pleaded guilty, and that a fine was im- posed : — Held, conclusive evidence that the highway was in H, and that H was liable to repair it. The Queen v. ike Inhabitants of Saughion, 22 Law J. Rep. (H.S.) M.C. 89; 1 E. & B. 501. ■The presentment did not state how the township was liable to repair : — Held, that although it might be bad for this reason on demurrer or error, yet, that having been submitted to by thedefendant8,they were conclusively bound by it. Ibid. The fact of the fine imposed by the Sessions not being shewn to have been piiid did not prevent the judgment from acting as an estoppel, no fraud being imputed. Ibid. A recital in a private act (since repealed) that the road in question was in D, ia at most only evidence of that fact, and is not admissible against the estoppel. Ibid. In an action for goods sold, there was a plea of pay- ment, and it appeared that both the plaintiff and the defendant employed G as factor. G sold the goods to the defendant knowing he was factor. On a balance of accounts, 6 was indebted to the defendant. The plaintiff, who knew the state of accounts between G and the defendant, petitioned the Court of Bank- ruptcy to make G bankrupt, and alleged in his affi- davit that G owed him a sum of money for goods sold by G, as factor of the plaintiff, to the defen- dant, and for which he had received payment by means of goods sold by the defendant to G. The plaintiff having afterwards sued the defendant for the price of the goods, — Held, that the statement in the affidavit was not conclusive evidence estopping the plaintiff from denying that the defendant had paid for the goods; the allegation as to payment, so ex- plained, not being an allegation of fact, but of an inference of law drawn by the plaintiff. Morgam v. Couchmam, 23 Law J. Bep. (n.s.) C.P. 36; 14 Com. B. Eep. 101. The declaration stated that the plaintiff bought of the defendant divers lots of timber trees, to be felled and removed under certain conditions; and that the defendant would not permit the plaintiff to fell or re- move a certain remainder of the lots pursuant to the sale and conditions. The defendant pleaded, first, that before thebreach,the plaintiff felled and carried away and converted divers other trees of the defendant in substitution of the remainder mentioned in the decla- ration ; secondly, that before breach the plaintiff frau- dulently felled and removed other trees of the defen- dant not comprised in the lots sold, and to which the plaintiff had no right, and which exceeded in number and value the remainder in the declaration; that the plaintiff fraudulently pretended that the trees which he so took were the trees which he had purchased ; that they were taken in fraudulent substitution of those named in the declaration, and that the plaintiff converted them to his own use : — Held, that these pleas were bad ; that they shewed no rescission of the contract stated in the declaration, and that the plain- tiff was not estopped by his own fraud and trespass from bringing his action on the contract. Lewis v. Cliftmt, 23 Law J. Rep. (n.s.) C.P. 68; 14Com. R Rep. 245. An estoppel may be replied to a plea of liberam tenememtum. Femrsham v. Emerson, 24 Law J. Rep. (n s.) Exch. 254; 11 Exch. Kep. 385. Upon an indictment charging felony committed within the jurisdiction of the Central Criminal Court, plea, not guilty, a prisoner, was tried, con- victed and sentenced to imprisonment. After sen- tence application was made to this Court for a writ of ^aftecBCorptw for his discharge, upon an aflSdavit shewing that the offence was not committed within the jurisdiction as alleged : — Held, that the record was an estoppel, and the writ was refused. Ex parte Newton, 24 Law J. Rep. (n.s.) C.P. 148; 16 Com. B. Rep. 97. EVIDENCE. 283 EVIDENCE. [See Pkactiok ; Bill of Exceptions — PEODrOTioN AND IlfSPEOTION OP DOCUMENTS — WiTNBSS.] (A) General Points. (a) Evidence made admissible hy Consent, (h) Judicial Notice. (c) Admissibility of Unstamped Documents. (d) Admissibility of Particula/rs. (e) Proof of Hamdmriting. (f) Admissibility of Conduct. (g) Contradiction of Witness. (h) Proof of Deed by Admission of Party (E) ?! (K) (L) (M) (N) (0) (t) Recitals in Acts of Parliamient. Records and Judicial Documents. Public Documents. Private Writings. (a) Entries of Deceased Persons. lb) Swrvey amd Presentment of Jv/ry. (c) Deeds. (d) Agreem,enis, (e) Maps, if) Accowats. (g) Letters. (A) BUls of Costs. Secondary Evidence. (a) In general. ( b) Notice to Produce. (c) Search. Parol Evidence. Hearsay Evidence and Declarations. Privileged Communications. Presumptive Evidence. Admissions. (a) By Pleading. (b) Under Notice to admit, (c) By Conduct of Pa/rty. Confessions. Depositions. (a) Caption. lb) Bxaminatianof (c) Admissibility of, in, Prior Convictions. Practice, in Equity. on. Absence of (A) General Points. (a) Evidence made Admissible by consent. QsMEre— whether evidence inadmissible by the legal rulesof evidence can be admitted by consent. Ba/rbot V. Allen, 21 Law J. Rep. (n.s.) Exch. ISS; 7 Exch. Rep. 155. (J) Judicial Notice. The Court will take judicial notice that a city is a county of a city. Begima v. St. Mamice, 20 Law Rep. (U.S.) M.C. 221; 16 aB. Rep. 908. The Court will take judicial notice of the law of England as administered in equity. Sims, or Simms, v. Ma/rryait, 17 Q.B. Rep. 281; 20 Law J. Rep. (n.s.) Q.B. 454. A declaration in debt claimed 44/. The only pica was payment and acceptance of 15/. in satisfaction of the debt. After issue joined on a traverse to the plea, a verdict was found for the defendant: — Held, that the plaintiff was not entitled to judgment non obstante veredicto, because, although the general rule of law is, that payment of a smaller sum cannot be pleaded in satisfaction of a larger, yet since the Reg. Gen. of Trin. term, 1 Vict., which relieves a defen- dant from pleading payment when a plaintiff by his particulars gives credit for a payment, the Court will after verdict presume, unless the contrary be proved, that the plaintiff may have delivered par- ticulars, giving credit for payments, and so reducing the balance sought to be recovered to an amount less than that covered by the sum stated in the plea. Turner v; Collins, 20 Law J. Rep. (n.s.) Q,.B. 259; 2 L. M. & P. P.C. 99. The Courts will take judicial notice that the Queen's prison, being the prison of that Court, is in England. Wiclcens v. Qoatley, 21 Law J. Rep. (n.s.) C.P. 50; 11 Com. B. Rep. 666; 2 L. M. & P. P.C. 572. The Courts in this country will not take judicial notice of the meaning of a term in foreign law : SodStS anonyms. Oerluurd v. Bates, 22 Law J. Rep. (n.s.) Q.B. 364; 2 E. & B. 476. The Courts of common law will take judicial notice of the jurisdiction of the Court of Admiralty, though not of its practice. Place v. Potts, 22 Law J. Rep. (n.s.) Exch. 269; 8 Exch. Rep. 70S. (c) Admissibility of Unstamped Docmnents. In an action by the plaintiff against a stakeholder to recover a sum of money deposited as a wager on a trottingmatch by the plaintiff, whose horse was beaten, the plaintiff, for the purpose of proving fraud, which consisted in one horse having been substituted for an- other, tendered in evidence an unstamped agreement relating to the match : — Held, that it was admissible without being stamped. Holmes v. Sixsmith, 21 Law J. Rep. (n.s.) Exch. 312; 7 Exch. Rep. 802. An unstamped receipt for 40/., dated at Cologne, was held to be receivable in evidence here, and the fact that such a receipt would not be receivable in evidence at Cologne until it had been stamped on payment of a penalty, would make no difference as to its admissibility here, as our Courts do not take notice of foreign revenue laws. Bristow v. De Secgue- ville, 3 Car. & K. 6; 6 Exch. Rep. 276. The defendant guaranteed to pay the plaintiff ac- cording to his arrangements with J. On proof that the defendant had entered into a written agreement with J, the Judge decided that it should be produced; but on production, the objection being taken that it was unstamped and that the plaintiff ought to be non- suited, the Judge treated the agreement as a nullity, and found for the plaintiff:_HeId, that the Judge was wrong, as the document, though unstamped, w.as an agreement, and ought not to have been treated as a nullity, as it was capable of being stamped at any fiiture time. Delay v. A Icoch, 24 Law J. Rep. (n.s.') Q.B. 68; 4E. &B.«60. Upon the trial of an issue, whether A had agreed with B for the purchase of certain leasehold premises, a receipt for the purchase-money by B, not properly stamped, was received in evidence to prove the agreement to purchase. On motion for a new trial, — Held, that proof of the payment of the purchase- money was not a collateral matter, but went directly to the matter in issue; and, consequently, that the receipt, not bein^ duly stamped, was improperly ad- "^ 284 EVIDENCE; (A) General Points. niitted as evidence to prove the agreement to pur- chase. Evans v. Prothero, 20 Law J. Rep. (n.s.) Chanc. 448. A document, purporting on the face of it to he a receipt for purchase-money, but inadmissible as evidence of the payment of the money for want of a sufficient stamp, is nevertheless admissible as evidence of the agreement for sale, if it contain the requisite terms semble. Vide s. c. 20 Law J. Rep. (k.s.) Chanc. 448, contrii. £vans v. Prothero, 21 Law J. Rep. (n.s.) Chanc. 772; 1 De Gex, M. & G. 572. {d) Admissibility of Particulars. Declaration on the common money counts. Plea, set-oflf. Before the trial the defendant withdrew this plea, and pleaded puis darrein continuance, that the accounts between the plaintiff and the defendant had been settled by agreement, and a balance struck, which was agreed to be paid by in- stalments, two of which had been paid prior to the trial. Replication, that the agreement was obtained by fraud, on which issue was joined. At the trial, the plaintiff put in evidence the particulars of set-off, which had been delivered with the original plea, for the purpose of shewing a discrepancy between the statement of accounts upon which the agreement was founded, and that given by the defendant in the particulars of set-off: — Held, that such evidence was admissible. BuckmaMer v. MeicMe- john, 22 Law J. Rep. (n.s.) Exch. 242; 8 Exch. Rep. 634. (e) Proof of Handwriting. For the purpose of proving a document in which a word is spelt in a particular manner, ex. gr. Titchbome for Tichbome, to be in the handwriting of a party, other documents not in evidence in the cause, but proved to be in the handwriting of the party, and in which the word is similarly spelt, are admissible in evidence. Brookes v. Tichlorne, 20 Law J. Rep. (n.s.) Exch. 69; 5 Exch. Rep. 929. (/) Admissibility of Conduct. [deepest, (K) Admissions.] A contract having been made between the plain- tiff, who was insane, and the defendant, which it was sought to set aside, — Held, upon an issue whether the defendant had notice of such insanity, that evi- dence was admissible of the plaintiff's conduct both before and after the signing of the contract, in order to shew that the character of his disease was such that it must have developed itself to one having the opportunity of observation afforded to the defendant, though a stranger. Beavan v. M'DonneU, 23 Law J. Rep. (N.s.) Exch. 326; 10 Exch. Rep. 184. {g) Contradiction of Witness, The defendant being sued as executor of A, in respect of a promissory note, purporting to be signed by A and B, but alleged by the defendant to be forged, stated, in cross-examination, that he had not heard B admit having signed the note : — Held, that the plaintiff was not at liberty to contradict the defendant by shewing that the latter had heard B make the admission . PalTner v. Frower. 22 Law J. Rep. (n.s.) Exch. 32; 8 Exch. Rfcp. 247. (h) Proof of Deed by Admission of Party A party in a cause who is called as a witness can- not prove the execution of a deed by himself where there is an attesting witness capable of being called. Whymam v. Goth, or Garth, 22 Law J. Rep. (n.s.) Exch. 316; 8 Exch. Rep. 803. ( i ) Recitals in Acts of Parliament. A recital in a private act (since repealed) that the road in question was in D, is at most only evidence of that fact, and is not admissible against the estop- pel. Regina \. SaugTiton, 22 Law J. Rep. (n.s.) M.C. 89; IE. & B.501. (B) Records and other Judicial Documents. [See titles Estoppel—Hiqhwat — Perjury.] Upon the trial of an issue whether the plaintiff had acquired a right to a watercourse by a twenty years' user as of right without interruption, evi- dence was offered that during the twenty years the defendants (a water company), who claimed to be entitled to divert the water, had penned it back from the plaintiff's land and had laid an informa- tion, under their local act, against the plaintiff's servant, who had removed the obstruction and who was convicted and fined a shilling, which the plain- tiff paid : — Held, that this evidence was properly admissible as negativing an enjoyment by the plain- tiff as of right. Eaton v. the Swansea WaterworTcs Co., 20 Law J. Rep. (n.s.) Q.B. 482; 17 aB. Rep. 267. An order of removal, unappealed against or con- firmed on appeal, is conclusive, not only as to the facts directly decided, but as to those facts also that are mentioned in the order, and are necessary steps to the decision of the settlement. Regina v. tJie Town- ship of Sartvngton Middle Quarter, 24 Law J. Rep. (N.s.)M.C.98; 4E. & B. 780. Upon an appeal against an order adjudging the settlement of Esther Gould, a lunatic pauper, who had been removed from the respondent township of L to an asylum, to be in the appellant township of H, the respondents proved a former valid order of removal made between the same townships, adjudg- ing the settlement of John Gould, aged eleven years, and William Gould, aged five years (being at the time unemancipated), " the lawful children of Wil- liam Gould and Esther Gould" (the said lunatic pauper), to be in the appellant township of H. The removal of the said two children ftom the respondent township of L to the said appellant township took place, and there was no appeal against the said order. This was the only evidence relied upon by the re- spondents to prove a settlement of the said lunatic pauper in the appellant township, derived from her husband : — Held, that as the adjudication of settle- ment in both the orders necessarily depended upon the same two facts, namely, the settlement of W G the father, and his marriage with the lunatic pauper before the birth of their said two children, the former order unappealed against was conclusive as to those facts, and the appellants were estopped from proving that in truth neither the said husband of the pauper, nor the pauper herself, had ever gained a settlement in their township. Ibid, EVIDENCE; (D) Pbivatb Writings. 285 Tn 1798 a marriage was solemnized by licence between a man and a female minor. Three years afterwards, in pursuance of a previous agreement, the woman instituted a suit for nullity of marriage, and a decree of nullity was pronounced, on the ground of non-consent of the minor's father. Early in the following year a daughter was born : — Held, overruling the decision of the Court below, that evidence, shewing that the sentence of the eccle- siiistical court had been obtained by fraud and collusion, was admissible; and, upon its being satisfactorily proved to the Court, the legitimacy of the daughter was established. Harrison v. the Cor- poration of Sowthwmpton, 22 Law J. Rep. (u.s.) Chanc. 722; 4 De Gex, M. & G. 137 : overruling 22 Law J. Rep. (h.s.) Chanc. 372. Where a marriage of a minor was celebrated by licence, to which the consent of the father was requisite, his consent (the presumption of law being in favour of marriage and legitimacy, and against the commission of any crime or offence,) must be pre- sumed, until proved to the contrary; and the mere fact that the mother's name appeared in the register as the consenting party was not sufficient to contra- vene the presumption. Ibid. The certiiicate of the registration of a deed in the Island of St. Vincent, by the registrar there, not being a person authorized to administer oaths, is not within the terms of the 22nd section of the 15 & 16 Vict. e. 86, and, therefore, is not receivable in evi- dence without proof of the handwriting of the regis- trar. BailUe v. Jackson, 22 Law J. Rep. (n.s.) Chanc. 7S3; 3 De Gex, M. & G. 38. (C) Public Documents. [Registers, see Compant. And see Inferior Court.] Under the 14 & 16 Vict. c. S9. ». 14, an un- stamped copy of an Act Book of the ecclesiastical court is sufiicient evidence of the probate of a will to prove the executorship of the person named in it. Dorrett v. Meux, 23 Law J. Rep. (n.s.) C.P. 221; 15 Com. B. Rep. 142. Under the 14th section of the statute 14 & 15 Vict. c. 99. (Lord Campbell's Act) extracts from parish registers of baptisms, marriages and deaths, purporting to be signed, some by the " incumbent," some by the " rector," some by the " vicar," and some by the " curate" of the parishes, — Held, to be receivable in evidence on a petition for the payment of money out of court, the Court considering that each incumbent was an " officer to whose custody,'' &c. within the meaning of the act. In re Soil's estate, 22 Law J. Rep. (n.b.) Chanc. 177; 2 De Gex, M. & G. 748; 9 Hare, App. xvi. An entry in a printed copy of the Journals of the House of Commons is not receivable in evidence, unless it has been compared with some original at the House; but an examined copy of an entry in the minute book kept by the clerk at the table of the House was received in evidence. ChuVb v. Salo- mons, 3 Car. & K. 75. (D) Private Writings, (o) Entries of deceased Persona. [See title Tithe.] In order to prove the title of a lessor of the plain- tiff in ejectment, a book headed " Account of J. V. sen., receiver of the rents of the Earl of A," was produced from a proper custody. The book con- tained for several years up to 1795 successive entries of balances due to J V sen., at the foot of which was (in a different handwriting and signed by Lord A and J V jun., a reference to a general statement of account in 1795. The entry in 1795 was as follows : — " Balance to J V sen. 762. 19«. 'Jd. Feb. 18th, 1795. The above account was this day settled and the balance 76/. 19*. Id. due thereon to J V sen. was paid by the Earl of A to the undersigned J V jun. and the vouchers delivered up. A. — J V jun." No evidence was given of J V jun.'s death or hand- writing, or of his ever having been a receiver : — Held, that his death would be presumed after a lapse of fifty years, and that these entries were ad- missible in evidence as being made by a person accounting with Lord A for money which he acknow- ledges to have received. Doe d. Ashhwrnham v. Michael, 20 Law J. Rep. (n.s.) O-B. 480 ; 16 Q.B. Rep. 620. In order to prove that certain premises were parcel of the manor of H, an entry dated 1610 in an ancient book of the then steward of the lord of the manor of H was tendered in evidence. The entry purported to be a memorandum of the terms of certain leases and deeds. It commenced with a lease from S to H, from 1570, for fifty-one years, of land, including the premises in question, describing them as parcel of the manor of H, and stated the recitals of that lease as shewing that the lord of the manor of H had in 1559 granted a lease for one hundred years of the same land to L, and that L had underlet to S. The entry then added, that H had assigned to P, and P's widow to C, who claimed ten years yet to come in the premises. The lord of the manor of H was entitled to the reversion in the premises. There was no proof independent of the entry that there ever was such a lease from S to H : — Held, that the entry was not admissible as evidence of reputation, nor as an entry made in the course of business, nor as secondary evidence of the lease of which it pur- ported to state the effect. Doe d. PadwicTc v. Witt- comb, 20 Law J. Rep. (n.s.) Exch. 297 ; 6 Exch. Rep. 601. In support of the right of the Earl of L to a fishery in the Solway Frith, the defendants put in evidence the following entry in the book of a former receiver of rents of the Earl of L's estate : — " Received of T H the respective shares due from three pro- prietors (T H being one) of the raise net set in the Solway Frith in D in the year 1733." Dictum, the entry is evidence not only of rent having been paid by T H, but also by the two other proprietors. Percivai v. Nanson, 21 Law J. Rep. (n.s.) Exch. 1 ; 7 Exch. Rep. 1. Per Pollock, O.B If an entry is admissible as being against the interest of the party making it, it carries with it the whole statement. But if the entry is made merely in the course of a man's duty, it does not go beyond those matters which it wa,8 his duty to enter. Ibid. An entry of the receipt of rates by a deceased clerk of a collector, who was duly appointed, is evi- dence of payment of rates to satisfy the statute 4 & 5 Will 4. c. 76. Bcgima v. St. Mary, War- wick, 22 Law J. Rep. (n.s.) M.C. 109; 1 E. & B. 816. 2S6 EVIDENCE; (D) Peivate Wkitikgs. A deceased person who was employed to serve notices to quit, and whose duty it was to inform his employer of their service, was sent with a notice to serve on R C, and on his return he signed a memo- randum, " 29th September, served R C." It turned out that, in fact, he had served not R C, but his father, W C. It was then proposed to shew that he stated this fact to his employer on his return, but that the memorandum having been prepared before- hand was not altered : — Held, that this evidence was not admissible, as it was not made in the course of business or discharge of a duty. Sta/pyl- ton V. Clmgh, 23 Law J. Rep. (n.s.) Q.B. S; 2 E. & B. 933. Semhle — there is no difference in the admissibility of a declaration made by a deceased person, in the course of business or discharge of duty, whether such declaration be in writing or by word of mouth. Ibid. The S4th section of the statute 15 & 16 Vict. c. 86. is retrospective — per Lord Justice Turner, affirming a decision of Vice Chancellor Kinderaley ; Lord Justice Knight Bruce doubting The power given to the Court by this section is not to be exer- cised until the Court is satisfied that the means of obtaining the ordinary legal evidence has been' substantially exhausted; therefore, in a case where such means had not in the opinion of the Court been exhausted, an order of the Vice Chancellor making certain entries in books of account primd facie evidence of their contents was discharged without prejudice. Ewart v. Williams, 24 Law J. Rep. (n.s.) Chanc. 414, 366; 3 Drew. 21. Entry of a payment by a deceased person against his interest, held admissible. Orrett v. Corser, 21 Beav. S2. Entry by a deceased person shewing (ui contra- diction to a deed evidencing a rightful payment by him) that the payment had been made in breach of trust to A B instead of to the trustees, held ad- missible in evidence to shew the receipt by A B, on the ground that such entry tended to charge the maker of it. Ibid. (6) Survey attd Presentment ofjv/ry. Replevin. The lordship of Denbigh having been granted to the Earl of Leicester in the 9 Eliz. was shortly before his death, which took place in the 30 Eliz., mortgaged by him to the corporation of London. The corporation afterwards conveyed the lands to the Crown, covenanting to deliver up all muniments of title, surveys, &c., and the lands have remained in the possession of the Crown ever since. The defendants, for the purpose of proving that the Plds Bach, on which the distress was taken, was parcel of the lordship of Denbigh, tendered in evi- dence a survey, which ran thus : " Lordship of Denbigh. Survey taken in the reign of Queen Elizabeth, 11th. The presentment of the jury of survey for town lands within the Comot of Kin- merch." Then followed a statement that David ap John ap David occupied certain parcels of land in K, and amongst them " Place Baghe," and in the margin were the words " Examined with demise. Acres 112. \l. Zs. id." The defendants also put in evidence certain ministers' accounts taken in the 39 Eliz. relating to a messuage in the tenure of David ap John ap David, situate in K. In the margin were the words " Note, this is 6s. Gd. rent in the old survey in my Lord Leicester's time":— Held, that the survey being a private one was not admissible for the purpose of proving that the lands in question were parcel of the lordship of Denbigh ; and, semble, that the presentment of the jury of sur- vey was not admissible as evidence of reputation. Daniel v. Wilkin, 21 Law J. Rep. (n.s.) Exch.236; 7 Exch. Rep. 429. (c) Deeds. Where a party is subject to the obligation of shewing that an unprofessional person understood the contents of a deed which he executed, the mere proof of its having been read over to him, un- accompanied with proper explanations, is not suffi- cient to satisfy the Court that the person hearing it read understood it. Boghton v. Hoghton, 15 Beav. 278; 21 Law J. Rep. (n.s.) Chanc. 482. Deeds of appointment of a sum of 30,000/. for younger children's portions haying been properly executed, and being found in the custody of the family solicitor: — Held, that the onus was thrown upon the party disputing them to prove their in- validity as escrows. Rowley v. Rowley, Kay, 242. {d) Agreements. A claim for the specific performance of an agree- ment stated the agreement. An affidavit was made on behalf of the plaintiff, that the agreement had been made, and that the attesting witness to it was a clerk of the defendant, and that the defendant had refused to allow his clerk to prove the agreement. An affidavit was made by the defendant in which an allusion was made to " the agreement in the plaintiff's claim set forth." The defendant did not deny that the agreement had been made. No other proof was given of the agreement : — Held, that, under the circumstances, the agreement was suffi- ciently proved, and that the plaintiff was entitled to a decree. Tynle v. BuUer, 23 Law J. Rep. (n.s.) Chanc. 504. (c) Maps. In order to shew that a house was situated in the county of N the plaintiff tendered in evidence a map printed on paper from an engraved copper plate, having on the face of it these words, " A new map of the county of S, taken from the original map published by J K in 1736, who took an accurate survey of the whole county, now republi8he4, "i''' corrections and additions by J and W K, sons of the author, 1766, and engraved by J R." The map was produced by a witness, who was a magistrate of the two counties, N and S. He had bought it twelve years before the trial : — Held, that the map was not admissible in evidence. Hammond v. Bradstreet, (in error) 23 Law J. Rep. (n.s.) Exch. 332; 10 Exch. Rep. 390. (/) Accownts. A gave a bond to B for i.OOOl. and died, leaving C his executor. B died, leaving D his executor. Bill by D against C to enforce the bond. C filed a cross-bill against D, alleging that there had been various accounts between A and B, and that the bond ought to be taken subject to the account, and not according to the letter; and, in support of such EVIDENCE; (E) Secondabt Evidence. 287 allegations, adduced, as evidence, an account in the handwriting of B. A decree was made in the causes for taking the accounts between A and B, and for an Inquiry as to the circumstances under which the bond was given : — Held, on exceptions to the Master's report, that the account in B's handwriting was to be taken as evidence in favour of B, and against A, as well as in favour of A and against B. JMcJcin V. Ward, Ward v. Diclcm, 20 Law J. Rep. (N.s.) Chanc. 211 j 4 De Gex & Sm. 266. (ff) Letters. If a defendant give in evidence a letter of the plaintiff which purports to be an answer to a letter of the defendant, the defendant is not bound to give his own letter in evidence, even if the other side desire it; but the plai^tiff' s counsel may put in the defen- dant's letter as his evidence, or comment on its not being given in evidence. De Medina v. Owen, 3 Car. & K. 72. Where letters are written " without prejudice," with a view to a compromise, they cannot be given in evidence. HoghUm v. Hoghton, 15 Beav. 278; 21 Law J. Eep. (n.s.) Chanc. 482. (A) BiXla of Costs. A clerk of a solicitor, who was the solicitor of the mortgagor and mortgagee in the creation of the security, and who copied the bill of costs of the soli- citor in the transaction of making an appointment of the estate comprised in the security, and of pre- paring the mortgage deed which was founded on the title created by the appointment, may be received as a witness to depose to the handwriting on the docu- ment (which proof alone does not make it evidence); but he cannot be received to depose further as to the contents of the bill of costs, or the subject to which it relates, for an attorney's bill of costs is his history of the transaction, and the attorney could not be himself permitted to give evidence of the transaction against his client, or against those claiming under his client. Chant v. Brovm, 9 Hare, 790. The consent of the personal representative of the mortgagor, who was one of the clients of the solicitor, to the admission of a bill of costs in evidence does not make it evidence which can be admitted against the parties claiming under the mortgagee, the other client. Ibid. Communications with the solicitor of the mort- gagor only, or with the solicitor of persons having interests in the mortgaged estate in default of appointment, such solicitor not being the solicitor of the mortgagee, are not privileged communications when tendered as evidence in a suit to impeach the mortgaged security as having been founded on an appointment made in fraud of the power. Ibid. (E) Secondary Evidence. {a) In general. S, on the Sth of January 1746, being tenant in fee simple of lands in Tipperary, executed an inden- ture, which was, two days afterwards, registered under the Irish Registration Acts. The memorial represented that S had, by the indenture, demised, or agreed to demise, these lands to C for three lives, therein named, with " a clause of renewal after the expiration of said lives thereinbefore mentioned," provided that C, his heirs, &c., should, " within six months from the death of the last of said three lives, nominate such life or lives as he would have insert- ed," and pay all rent, and "the sum of Wl. 7s, 6d. for adding or renewing such life or lives for ever." The memorial was signed by C alone, and he regis- tered it. In February 17S0, S executed a settle- ment in contemplation of marriage, by which he made himself tenant for life only in the estate com- prised in the indenture of 1746. In March 1750, he executed a lease to C, in which the indenture of 1746 was recited, and in consequence of some changes in the lands a change was made in the rent. The lease recited the indenture as a demise to C for three lives and the longest liver of them, with a cove- nant to " renew the same for ever, on payment of 111. 7s- 6d. for renewing the same on the fall of every life, within six months next after the fall of each life." The habmdMm in the lease was for the same three lives; and S covenanted that,." upon the death or failure of the aforesaid life or lives, or any or either of them" (naming them), and upon C, his heirs, &c., paying " the sum of 11/. 7s. 6d. above the annual rent, within the space of six calendar months, and immediately after the death or failure of such hfe," and on nomination, &c., " S and his heirs," &c., would add the life so nomi- nated; "and so in like manner from time to time successively for ever thereafter on the failure of every other several life or lives in the said lease or thereafter to be nominated." Renewals had, from time to time, been made by the successors of S in the estate, sometimes after proceedings in Chancery to compel the same, sometimes without such proceed- ings; but in 1845, G, the descendant of S, having absolutely refused to renew, a bill was filed against him by B, who had become possessed of C's lease. The bill prayed for a renewal according to the lease, which B alleged to have been made in conformity with, and under the obligation of, the indenture of 1746. This indenture could not be produced, but the memorial was tendered and received in evidence. The defendant alleged that the lease was ineffectual to bind the inheritance, as it was made by a person who was, at the moment of executing it, only tenant for life, and he contended that there was no legal evidence of the indenture of 1746. He also relied on the difference between the terms of renewal con- tained in the indenture and those contained in the lease: — Held, affirming the judgment of the Court below, that the plaintiff was entitled to the renewal as prayed ; that the memorial was properly admitted as secondary evidence of the indenture; that that indenture was to be treated as an original lease, con- taining a covenant, under the obligation of which the lease of 1750 was executed; that the obligation entered into in 1746 being by the tenant in fee simple, his performance of it in 1750 was valid, although he was then only tenant for life; and that the acts of the successive tenants of the estate, though not evidence to prove the existence of the covenant, became, when the covenant had been otherwise proved, evidence of the construction which the parties interested had put upon it. Sadlier v. Biggs, 4 H.L. Cas. 435. Upon one of the occasions of renewal, the tenant for life against whom a bill had been filed was an infant. "The Court of Chancery in Ireland ordered his guardian to execute a lease in conformity with 288 EVIDENCE; (E) Secondaey EvidekcE. the covenant contained in the deed of January 1 746. Ibid. Per Lord St Leonards, that order was authorized by the Irish statute 11 Ann. c. 3. Ibid. An attorney subpcenaed to produce a document at a trial, may in his discretion refuse to produce it, on the ground that it has been entrusted to him by a client. He is neither bound to produce it, nor to answer a question with respect to its nature; and the Judge ought not to examine it to see whether it is a document which ought to be withheld. Volant v. Soyer, 22 Law J. Rep. (n.s.) C.P. 83; 13 Com. B. Rep. 231. An attorney stated that after the execution of a deed which he held for his client, a document was delivered out of his office to the defendant as a copy. The attorney having refused to produce the deed, — Held, that the document so delivered was not admissible as secondary evidence of its contents. Ibid. In order to prove a deed, a witness was called who stated that it was destroyed, and that he had seen the names of the parties to it in their respective handwriting. He also stated that the instrument bore the name of one B as an attesting witness; that B was dead, but that he did not know B's hand- writing, or whether the said name of B was written by B : — Held, that under the circumstances, secon- dary evidence of the contents of the deed was admissible without further proof of the handwriting of B. Segina v. the Inhabitants of St. Giles, Cam- berweU, 22 Law J. Rep. (h.8.) M.C. 54 ; 1 E. & B. 642. Per Brie, J. Where a document is lost and the attesting witness to it is dead, there is no necessity for proving his handwriting. Ibid. Semite — that secondary evidence is receivable of the contents of a private document in the possession of a party who is beyond the jurisdiction of the Court and who refuses to produce it. But held, that a mere demand of the document made by a stranger who does not even disclose his object in making it, is insufficient to render such evidence admissible. Eoyle V. Wisemcm, 24 Law J. Rep. (n.s.) Exch. 160; 10 Exch. Rep. 647. A copy of a document sent by the plaintiff to the defendant, with a letter stating it to be a copy, is re- ceivable in evidence for the defendant where the document itself would be so without production of or accounting for the original. Ansell v. Baker, 3 Car. & K. 145. A registered memorial of a lost deed, — Held, good secondary evidence. Cathroio v. JSade, 4 De Gex & Sm. 527. (5) Notice to produce. [See Eegina v. Kitson, title Aeson.] A notice to produce documents upon the trial of a cause applies not only to the first, but to all subse- quent trials of the same cause, and need not be re- peated. Hope v. Beadon, 21 Law J. Rep. (n.s.) Q.B. 25; 17 Q.B. Rep. 609. The object of a notice to produce a document is merely to give the opposite party sufficient oppor. tunity to produce it if he pleases, and not that he may be enabled to prepare evidence to explain, nul- lify, or confirm it; and, therefore, where the docu- ment is in court at the time of the trial, a notice to produce it immediately is sufficient to render secon- dary evidence of its contents admissible if it be not produced. Dwyer v. CoUins, 21 Law J. Rep. (n.s.) Exch. 226; 7 Exch. Rep. 639. The attorney of a party to a suit may be asked, and is bound to answer, whether a document which he has received from his client in the course of his professional employment is in his possession or else- where in the court. Ibid. (c) Search. A deed was delivered to T, with instructions not to give it up to any one but S and R M together, and it was given up by T to S and R M many j ears after. P and B were the trustees named in it. At S's death the deed was not found on her premises, but no pro- per search in the repositories of the trustees was proved : — Held, that the deed was intended to be operative, but that the search was insufficient to let in secondary evidence. Doe d. Richards v. Lewis, 20 Law J. Rep. (n.s.) C.P. 177; H Com. B. Rep. 1035. An agreement having been treiced to the possession of P, a witness was called, who stated that he went to P, and asked him whether there was any agree- ment between himself and the pauper respecting a house. P said, " I cannot say for a certainty ; I will search," and then directed his clerk to search. The witness and the clerk then searched P's office, and could not find the agreement; P was not called as a witness. The Sessions held, that there was no suffi- cient proof of search without calling P. The Court refused (upon a case stated) to interfere with the de- cision. Regina v. Saffron Hill, 22 Law J. Rep. (M.S.) M.C. 22; 1 E. & B. 93. (F) Parol Evidence. [See titles Bills and Notes — Cdstom and PkESCEIPTION — GUABAKTIE — ShIP AND ShIPPINO —Will.] A bill of lading provided that the goods specified therein should be delivered to the order of the con- signee or his assigns at Liverpool, " he or they paying freight for the said goods five-eighths of a penny ster- ling per lb. with primage and average accustomed " : .^Held, in an action by the shipowner against an indorsee of the bill of lading, who had accepted the goods, to recover the freight and primage, that the latter might give evidence of a mercantile custom existing at Liverpool, by which he was entitled to a deduction of three months' discount from the freight. Brown v. Byrne, 23 Law J. Rep. (n.b.) Q.B. 313; 3 E. & B. 703. The plaintiff contracted by parol with H, the de- fendant's agent, for the purchase of flour above the value of 10;. of the same quality as the defendant had supplied to M. On the next morning the de- fendant sent to the plaintiff a sold note, which described the flour simply as " Whites X S." On the following day flour answering the description of " Whites X S " was delivered. The plaintiff tried half a sack, and finding it not so good as the flour supplied to M, which was " Whites X S S," com- plained of it to H, but afterwards used two mure sacks and sold a third, and then paid the contract price under protest : — Held, that parol evidenoe was not admissible to shew that the plaintiflf had bar- gained for flour other than that mentioned in the EVIDENCE. 289 written contract, viz., " Whites X S ;'' and that the defendant, by delivering " Whites X S," had ful- filled his contract. Hmnor v. Qroves, 24 Law J. Rep. (n.s.) C.P. 53; 15 Com. B. Rep. 667. Held, also, that the plaintiff, aftei having used more of the flour than was necessary for the purpose of testing it, and sold a portion of it, was not at liberty to rescind the contract and recover the price paid as money had and received to his use. Ibid. A plea alleged that the agreement in the declara- tion was entered into " on the condition and subject to the terms" that the said J M should give refer- ences, &c. i — Held, that it was a bad plea, as endea- vouring to vary the terms of a written contract— disaenUemte Mmde, J., who held that the plea might mean that the contract in the declaration contained the condition and terms, though they were not set out. Ccmham v. Bwrry, 24 Law J. Rep, (n.s.) C.P. 100; 16 Com. B. Rep. S97. On a charter-party, by which a shipper agrees to load a full and complete cargo of sugar, molasses, ~T— other lawful produce, evidence is admissible to or prove that by the custom of merchants at the port of lading, a full and complete cargo of sugar and molasses in puncheons and hogsheads, is a compli- ance with such contract, although the same quantity of sugar, if packed in tierces, would not constitute such fiill and complete cargo. Cvthiert v. Cvm/mmg, 24 Law J. Rep. (n.s.) Exch. 198. (G) Hearsay Evidence and Declarations. Evidence of reputation is admissible in questions relating to matters of public and general interest, notwithstanding that matters of private interest may also be involved in the inquiry. Regvna v. fte Comity of Bedford, 24 Law J. Rep. (n.s.) Q.B. 81; 4 E. & B. 635. Therefore, on the trial of an indictment against the county of B for the non-repair of a bridge, to which they pleaded that A was liable ratione termrce to repair a portion of the bridge, evidence of repu- tation that A and his predecessors were liable to do the repairs to that part, was held to be admissible. Ibid. Qitasre — whether an appeal under the 35th section of the Common Law Procedure Act, 1864, lies in the case of an indictment? Ibid. In an action by an executor for work done, it ap- peared that his claim was for extras incurred in the making of a machine for the defendant by the testa- tor, beyond what was contained in an agreement and specification. The plaintiff did not produce the agreement, which was unstamped and in the hands of a third party, but proved that the defendant had ordered, and the testator executed additions and al- terations, and also that the testator had told a witness that he had received money from the defendant on account of the extras. On this evidence the defen- dant claimed a nonsuit, but the Judge allowed the case to go to the jury, who found for the plaintiff. The Court held, that the defendant was not entitled to a nonsuit, but, deeming the evidence insufficient to justify the verdict, made the rule absolute for a new trial. Mdie v. King^ord, 23 Law J. Rep. (n.s.) C.P. 123; 14 Com. B. Rep. 759. Slight reliance is to be placed on the declarations of deceased persons, said to have been made before, DiOEST, 1850—1855. but remembered after, the cause of litigation had arisen. Such evidence is usually given with minute particularity, but is subject to no worldly sanction. Well V. Hwycock, 19 Beav. 342. Declarations of deceased members of a family afford important evidence on questions of pedigree, if supported by entries and documents ; but the Court has been compelled to reject a case which depends exclusively on evidence of such declarations. Ibid. In pedigree cases resting on the declarations of de- ceased persons, the Court is compelled to regard with great suspicion the evidence of persons interested. Ibid. It requires very strong evidence to satisfy the Court that a parish register is not to be trusted in so material a matter as the Christian name of a child whose baptism is recorded. Ibid. In pedigree cases the question usually mainly turns on one link in the pedigree. Ibid. Observations on the little reliance to be placed on the evidence of persons who strive to work out and sustain a particular pedigree. Crouch v. Booper, 16 Beav. 182. In pedigree cases, if one link be attained any two persons may be proved to be related ; and, therefore, in such cases the difficulty usually consists in pro- perly weighing and considering the evidence relating to the connecting link. Ibid. In pedigree cases, it is a rule of evidence that the declarations of deceased members of the family post litem motam are inadmissible, and anterior de- clarations are little to be regarded, unless corrobo- rated by other circumstances. Ibid. When witnesses are once impressed with the be- lief of their relationship to a given individual, they are apt in time, by talking and discussing the matter, to bring themselves over to a conscientious belief of family conversations and declarations tending to support that relationship, but which never took place. Ibid. Evidence of conversations with deceased persons is not given under the ordinary worldly sanction, from the difficulty in such a case of convicting the witnesses of perjury. Ibid. The absence unexplained of the baptismal certifi- cate of the party forming the material link of a pedi- gree, while those of the other sons are carefully and regularly entered, forms a difficulty almost insuper- able in substantiating the alleged pedigree. Ibid. The evidence of " experts " as to the age of a document, and the character of the handwriting, may in some cases be valuable. Ibid. (H) Privilbobd Communications. A Judge is bound to decide the preliminary ques- tion of fact whether a communication is privileged or not ; and his decision, if erroneous, may be re- viewed. ClecMie V. /ones, 21 Law J. Rep. (k.s.) Exch. 105 ; 7 Exch. Rep. 421. In an action by the payee against the maker of a promissory note for money lent, the plaintifl', for the purpose of taking the case out of the Statute of Limitations, tendered an account-book containing an admission by the defendant of payment of interest to him. The defendant's counsel then raised a colla- teral issue as to the admissibility of the book, and proved that the plaintiff, being the attorney of the defendant, wrote to her for a statement of the debts 2P 290 EVIDENCE. and payments of her late husband, adding, " This ftom you will assist me in preparing the case for counsel," whereupon the book in question was sent to the plaintiff. The Judge having heard the evi- dence, rejected the book : — Held, that the commu- nication was privileged. Ibid. Per Martin, B., a communication by a client to his attorney made under a ionA fide, although mis- taken, belief of its being necessary to his case, is privileged. Ibid. The defendant, J. Taylor, was entitled to an annuity under a will, subject to a proviso, that if he attempted to charge or dispose of such annuity it should be applied by the executors for the benefit of the said J. Taylor or his wife, or such other persons mentioned in the will as the executors should think fit. A writ of sequestration having issued against J. Taylor, he assigned his annuity to a trustee for the benefit of his wife. The sequestrators filed this bill to set aside the assignment, alleging that it was a fraudulent arrangement to defeat their claims. The wife of the defendant J. Taylor, by her answer, stated that the object of the assignment by J. Taylor was to effect a forfeiture of the annuity, in the ex- pectation that the executors of the testator would apply it, or some porcion of it, for the benefit of his wife, and at the same time to defeat the claims of the plaintiffs. She submitted that she was not bound to produce the documents and communications ■which passed between her and her solicitor relative to the assignment. The answer was excepted to for insufficiency : — Held, that there was no fraud in this transaction ; that it was one as to which it was per- fectly lawful for a client to ask, and for a solicitor to give professional advice, and the documents relating to it were within the admitted rule of privilege. FoUett v. Jefferyes, 20 Law J. Eep. (n.s.) Chanc. 65 ; 1 Sim. N.S. 1. A party assigned his property for the benefit of his creditors, one of whom filed a bill to set aside the deed, and insisted that a particular clause inserted in it had been concealed from him. The assignor, in his answer, stated that the creditor had known of the insertion of the clause, and in support of his case proposed to examine the solicitor of the creditor, as to what took place on a certain interview between the solicitor and the assignor with reference to the deed. The solicitor demurred to the interrogatory on the ground that it inquired respecting matters which he only knew from confidential communica- tions made to him by or in his agency for his client while he was acting as his solicitor. The demurrer was overruled. Gore v. Harris, 21 Law J. Rep. (h.s.) Chanc. 10 ; 5 De Gex &. Sm. 30, nom. Gore v. Bowser. The rule which protects from disclosure confiden- tial communications between solicitor and client is not founded on the ground of confidence between them, but on that of necessity for the existence of the rule to enable the client properly to defend or prosecute his rights and interests. Therefore, the rule is inap- plicable in cases of testamentary dispositions, and as between parties claiming under the testator ; and where a question is raised, whether the executors are or are not trustees for the next-of-kin, the evidence of the solicitor who prepared the will as to what passed between himself and the testator, or his agent on the subject of the will, is admissible, on behalf of the next-of-kin, and will not be suppressed on the application of the executors on the ground of privi- lege ; but all communications between the executors and the same solicitor, acting as their solicitor, on the subject of the will of the testator and after his death, are privileged. Russell v. Jackson, 21 Law J. Rep. (n.s.) Chanc. 146 ; 9 Hare, 387. Evidence otherwise admissible will not be rejected on the ground that it may disclose an illegal purpose. Ibid. Senible The existence of an illegal purpose will, as in a case of fraud, prevent the privilege attaching ; because it is as little the part or duty of a solicitor to advise his client how to evade the law, as it is to contrive a fraud. Ibid. A defendant filled the character of solicitor only, and afterwards the double character of trustee and solicitor for others: — Held, that he was bound to produce all the documents and communications be- tween him and his client, except those which had taken place pending the litigation (per Lord Lynd- hwrst). Fev} v. Qwppy, 13 Beav. 457. Cases and opinions of counsel taken by trustees as such merely, are not entitled to protection in a suit by the cesUiis que trust against the trustees or their representatives. Devaynes v. Robinson, 20 Beav. 42. The same rule applies to cases and opinions taken before the time when the defendant (the represen- tative of a trustee) admits having first heard of the questions raised by the bill. Ibid. Where a solicitor had been employed by residuary legatees with reference to a proposed purchase by the executors of part of the trust estate, — Held, that the executors could not use the solicitor's depositions as to what took place between them and him upon the subject, for the purpose of shewing a participation on the part of the residuary legatees in the sale. Lodge V. Priclia/rd, 4 De Gex & Sm. 587. (I) Prescmptite Evidence. A recruit received enlisting money, knowing it to be such, from a soldier who was employed by a non-com- missioned officer in the recruiting service, and who had belonged to a regiment for a longer period than that within which he ought to have been attested accord- ing to the provisions of the Mutiny Act: Held,' that such soldier must be presumed to have been regularly attested. The fact that the soldier intended to have taken the recruit to be attested before a Jus- tice who had no authority to attest, affords no counter presumption that the recruiting soldier had been him- self improperly attested. Wolton v. Oamn, 20 Law J. Rep. (n.s.) Q, B. 73; 16 Q.B. Rep. 48. A receipt and also a delivery order, given by the plaintifftoawitness amonth after the sale, but dated on the day of the sale, and not otherwise shewn to be in existence before the sale, — Held, duhitante Pollock, C.B., to be admissible, as affording some evidence of the sale having taken place on the day of the date of the documents. Morgan v. Whitmore, 20 Law J. Eep. (N.s.) Exch. 289; 6 Exch. Rep. 716. Where a tenant encloses a portion of land which does not belong to his landlord, and occupies it for upwards of twenty years with and as parcel of the demised premises, the presumption at the expiration of the lease is, that as against the tenant it is included in the tenancy, and not that the encroachment was made for the benefit of the landlord. This presump- EVIDENCE. 291 tion ia one of fact, not of law. Andrews v. ffaika, 22 Law J. Rep. (n.s.) aS. 409; 2 E. & B. 349. A testator, by his will, gave all his real and perso- nal estate to W, in trust for his wife absolutely, " and in case my said wife shall die in my lifetime, then in trust for such of them my three children A, B and C as shall attain the age of twenty-one, or marry under that age ; or in case all of them shall die under the age of twenty-one years, being sons, or under that age and unmarried, being a daughter," then he gave all his property to W absolutely. The testator, his wife, and children were drowned at sea; the testator, his wife, and two of his children B and C, being washed off the deck of the ship by the same wave, and A was proved to have survived the others. W, as executor, proved the will. Upon a bill by the administratrix of A, claiming as under an intestacy, it was held, that, in the absence of evidence, the Court would not presume that the testator survived his wife; and that as against the next-of-kin the onus of proof rested upon the person claiming under a will to make out a perfect title, by analogy to the rule as to the heir-at-law in the case of real estate; and the fact of survivorship not being proved, the property would go to the next-of-kin ; and also, upon the con- struction of the will, that the benefits given to W were to be dependent upon the survivorship of the husband. Underwood v. Wing, 24 Law J. Rep. (m.s.) Chanc. 293; 4 De Gex, M. & G. 633 : affirming 23 Law J. Rep. (n.s.) Chanc. 982; 19 Beav. 4S9. (K) Admissions. (a) By Pleading. Although, in general, pleadings in one suit cannot be used in another, as evidence of the truth of the allegations contained in them, yet, where a pleading is signed by the party, it will be regarded in the light of an admission, and as such, it will be evidence against him, not only with reference to a different subject- matter, but in a suit maintained against a different opponent. MaricmsJci v. Cairns, 1 Macq. H.L. Cas. 212. "Where, in an action of contract against two, one of the defendants pleaded never indebted and the other never indebted and infancy, and the plaintiff joined issue on all the pleas except that of infancy, as to which he entered a nolle prosequi, — Held, that the plaintiff had thereby admitted that there never was any joint binding contract, and that he ought to be nonsuited. Beyle v. Webster, 21 Law J. Rep. (n.S.) a.B. 202; 17 Q. a Rep. 950. In trespass for breaking and entering the plaintiff's house and taking his goods, defendant pleaded a jus- tification under a fi. fa. and warrant of execution against the goods of one G H, which warrant was delivered to the defendant, a bailiff, to be executed, and that under the authority of the same the defen- dant entered, &c. The plaintiff replied de imjwid, admitting the writ, the making of the warrant, and the delivery thereof to the bailiff; — Held, that the existence of a warrant was admitted by the replica- tion, and that the defendant was not bound to prove it. Eevdtt V. Macquire, 21 Law J. Rep. (n.s.) Exch, 30; 8 Exch. Rep. 80. (h) Under Notice to admit. Where, in an action against the acceptor of a bill of exchange, plea, nan acceptavit, the defendant's attorney signed an admission tha.t the acceptance was in the handwriting of the defendant, without adding the usual clause, "saving all just exceptions to theadmissibility of evidence," — Held, that the jury were warranted in finding for the plaintiff, notwith- standing the non-production of the bill. Chaplin V. Levy, 23 Law J. Rep. (n.s.) Exch. 117; 9 Exch. Rep. 531. (c) By Conduct of PaHy. An abstract of title stating the recitals in certain deeds, and relied upon by the defendant when before a Master in Chancery in a suit in which he was plain- tiff, is admissible against him in an action as evidence of the matters recited, without producing the deeds. Pritchaa-d v. Bagshawe, 20 Law J. Rep. (n.s.) C.P. 161; llCom. B. Rep. 459. (L) Confessions. Theprisonerwasindictedfor an unnatural crime with a mare. T, who kept his mare in a stable at an inn, of which W was landlord, saw the prisoner in the stable with the mare under circumstances that made him sus- pect the commission of the offence. W and he after- wards went to the prisoner, and W said to the latter " I want to know what business you had in T's stable." The prisoner said " You know." W answered, " I don't know, and have come on purpose to know, and will know before I leave; and if you don't tell me I will give you in charge to the police till you do tell me." The prisoner again said " You know." W re- plied " I don't know; but from what I could see of the mare, it is the best of my belief that you had con- nexion with her." The prisoner then confessed. T was close by all the time: — Held, that as the confes- sion was made after the inducement of a threat held out by W, when T was present, it was the same thing as if T had used the threat; and that as T was the owner of the mare and likely to prosecute, he was a person in authority, so that the confession made after the inducement held out in his presence was inadmis- sible as evidence. Regina v. Luclchurst, 23 Law J. Rep. (n.s.) M.C. 18; 1 Dears. C.C. 245. A female servant being taken into custody by a policeman, on the charge of setting fire to her master's premises, expressed a wish to change her clothes. The policeman told her she might do so, but must remain in custody, and he gave her into the charge of a Mrs. A, a married daughter of her master, but who did not live in the house. Mrs. A took the girl apart and said to her, " I am sorry foryou; you ought to have known better. Tell me the truth, whether you did it or no." The servant said, " I am innocent." Mrs. A replied, " Do not run your soul into more sin, but tell the truth." The prisoner thereupon confessed: — Held, that there was no inducement held out to render the confession inadmissible; and, secondly, that Mrs. A was not a person in authority, competent to hold out an inducement which would prevent the reception of the confession in evidence. Regina v. Sleeman, 23 Law J. Rep. (n.s.) M.C. 19; 1 Dears. C.C. 249. A policeman who had a prisoner in his custody on a charge of felony said to him, " You need not say anything to criminate yourself; what you do say will be taken down and used as evidence against you" : — Held, that this observation of the policeman did not amount to any promise or threat to induce the pri- 292 EVIDENCE. soner to confess so as to render a confession which the latter made after it inadmissible. Regma v. Baldry, 21 Law J. Rep. (s.s.) M.C. 130. The prisoner, who was a maid servant, was indicted for the murder of an infant, of which she had recently heen delivered. A surgeon had been sent for to attend her, but before he came her mistress told her she had better speak the truth; in answer, she said she would tell it to the surgeon, and when he came, she, in the presence of her mistress, made a confession to him, which was offered in evidence : — Held, that as the husband of the mistress was not the prosecutor, and as the offence was not in any way connected with the management of the house, the mistress could not he considered as a person having authority over the pro- secution, and, therefore, the inducement held out by her did not affect the admissibility of the evidence. Jtegina v. Moore, 21 Law J. Rep. (h.s.) M.C. 199; 3 Car. & K. 153. (M) DEP03ITION8. (o) Caption. In a case of felony the depositions had one caption, which mentioned the names of all the witnesses, and at the end had one jurat, which also contained the names of all the witnesses, and to which was the signa- ture of the magistrate, and each witness signed his own deposition : — Held, to be correct. Regma v. Tovmg, 3 Car. & K. 106. (5) Examination of Witness on. On the trial of an indictment the counsel for the prisoner is not at liberty, when cross-examining a witness for the prosecution, to put into the witness's hand his deposition, taken before the magistrate, and then ask the witness whether, having looked at the paper, he still adhered to the statement already made in his evidence in court, the counsel not intending to put the deposition in evidence. Segina v. Ford, 20 Law J. Rep. (h.s.) M.C. 171; 2 Den. C.C.245; 3Car. &K. 113. (c) Admissibility of in Absence of Witness. The deposition of a witness who is too ill to travel to attend at the trial of a prisoner may be read as evidence before the grand jury as well as before the petty jury, by virtue of section 17. of the statute 11 & 12 Vict. c. 42. Segina v. Clements, 20 Law J. Rep. (n.s.)M.C. 193; 2 Den. C.C. 251. The deposition of a witness taken before a magis- trate upon a criminal charge is (independently of the 11 & 12 Vict. c. 42. s. 17.) receivable only in evidence at the trial in case the deponent is dead or is kept out of the way by the procurement of the prisoner. JRegina v. Scaife, 20 Law J. Rep. (n.s.) M.C. 229; 17 Q.B. Rep. 238. Where, upon the trial of three persons for felony, it appeared that a witness had been kept out of the way by the procurement of one only of the pri- soners, and the deposition was admitted in evidence against all the prisoners, it was held to have been improperly admitted against those who were uncon- nected with the absence of the witness. Ibid. The prisoner was charged before a magistrate with wounding A with intent to do him grievous bodily harm, and A's deposition was taken. A afterwards died of the wound, and the prisoner was indicted for his murder : — Held, that on the trial for the murder. the deposition of A might be read in evidence; as, although it was not on the same technical chsirge, it was taken in the same case, and the prisoner had had full opportunity of cross-examination. Segina T. Beeston, 24 Law J. Rep. (n.s.) M.C. 6; 1 Deara. C.C. 405. (N) Pbiob Comtictions. When an indictment for felony charges a previous conviction, the prisoner is to be arraigned on the whole indictment, but to the jury is to be read in the first instance only that part of the indictment which charges the new offence; after they have found their verdict, that part of the indictment is to he submitted to them (without their being again sworn) which charges the previous conviction. The statute 14 & IS Vict. c. 19. s. 9. has made no sub- stantial alteration in the practice. Segina v. Shuttle- worth, 21 Law J. Rep. (n.s.) M.C. 36; 3 Car. & K. 375. If a prisoner, charged with larceny in an indict- ment which contains a count for a previous con- viction, either call witnesses on his part, or cross- examine the witnesses for the prosecution to prove his good character, he gives evidence of his good character within the meaning of the statute 14 415 Vict. c. 19. s. 9, so as to entitle the prosecutor to give the previous conviction as evidence in answer to the jury, before they jeturn their verdict on the charge of larceny. Segina v. Shrimpton, 21 Law J. Rep. (N.S.) M.C. 37; 3 Car. & K. 373. If the prisoner give evidence of good character for a limited number of years last past, the previous conviction, though anterior to the period spoken to by the witness as to character, may be put in in answer to such evidence. Ibid. Several previous convictions against the same pri- soner may be set out in an indictment for felony. Segina v. Cla/rke, 22 Law J. Rep. (n.s.) M.C. 135; 1 Dears. C.C. 198; 3 Car. & K. 367. A prisoner who pleads guilty to an indictment, and who has been previously convicted of felony, is a competent witness against other prisoners charged in the same indictment; for although he is a party " uidividually named on the record," he is no party to the proceeding there and then before the Court. Segina v. Drury, 3 Car. & K. 190. (0) Pbactioe, in Equity. Where a claim, in which there are disputed facts, is brought on for hearing with defective evidence, it is competent for the Court to direct it to stand over, with liberty for the plaintiff to supply the defect. SmUli V. Constamt, 20 Law J. Rep. (n.s.) Chanc, 126 ; 4 De Gex & Sm. 213. Bill against infant defendants. The plaintiff had served defendants' solicitor with notice to produce a particular deed in his possession. The defendants' solicitor sent to the plaintiff a copy of the deed : — Held, that the production of the copy at the hearing did not amount to secondary evidence of the deed against the infant defendants. Bacon v. Cosby, 20 Law J. Rep. (n.s.) Chanc. 213; 4 De Gex & Sm. 241. A deed taken to be proved at the hearing by its production, and an affidavit of the handwriting of the parties who had executed it, on the ground of there being before the Court, at least, evidence of an EVIDENCE. 293 agreement to do a thing^ for valuable consideration. Ibid. A plaintiff's affidavit in support of a claim will be treated as evidence where there is no opposition or conflict of affidavits. Shardhw v. Oaze, 20 Law J. Rep. (n.s.) Chanc. 395. The Court has no jurisdiction to order a plaintiff to be examined imd voce before a Master under a decree. Ward v. Homfray, 20 Law J. Rep. (h.s.) Chanc. SS6. Evidence taken in an original suit may be read in a cross-suit imder the common order, the Court having judicial notice of both causes. Gray v. Haig, Haig V. Gray, 21 Law J. Rep. (n.s.) Chanc. 542. A cause was at issue before the Chancery Pro- cedure Amendment Act and the Orders made under it came into operation, but no evidence had been taken. The Court, in the exercise of its discretion, on the motion of the defendants, the plaintiff op- posing, ordered that the evidence in the cause should be taken according to the method prescribed by the act and Orders. Macintosh v. the Great Western Bail. Co., 22 Law J. Rep. (h.s.) Chanc. 70. Under Lord Campbell's Act (14 & 15 Vict. c. 99. B. 10.) the Court will receive as evidence an affidavit sworn before a Master Extraordinary of the Court of Chancery in Ireland without requiring proof of the signature or appointment of such Master. In re Mahon's Trust, 22 Law J. Rep. (n.s.) Chanc. 75 ; 9 Hare, 459. Upon a motion for a decree, after affidavits in reply, the defendant may obtain an order to cross- examine a plaintiff. Williams v. WiMams, 22 Law J. Rep. (n.s.) Chanc. 639; 17 Beav. 156. Where witnesses are examined iiivd voce on an appeal, whose evidence was not before the Court below, and the appeal is successful, the appellant is entitled to the costs of the appeal. La/ngford v. May, 22 Law J. Rep. (n.s.) Chanc. 978. It is not imperative that commissioners appointed by the Court to examine witnesses in a suit should be barristers-at-law. Menderson v. Philipson, 22 Law J. Rep. (n.s.) Chanc. 1037. Affidavits filed in a cause may be used as evidence in a subsequent petition in the same cause. Jones V. HhirnimU, in re Twrtibull, 22 Law J. Rep. (n.s.) Chanc. 1055. Since the 14 & 15 Vict. c. 99. a plaintiff may examine a defendant as a witness as to matters in which he is interested and yet obtain a decree against him. Sohinson v. Briggs, 22 Law J. Rep. (n.s.) Chanc. 1056. After the time for closing the evidence in a cause has expired, the Court will not extend the time to enable either party to answer it, the special leave mentioned in the 38th section of the statute 15 & 16 Vict. c. 86. being only to be obtained upon special application and under special circumstances; therefore, where a plaintiff had made repeated ap- plications for extension of time to file his affidavits, and the time for closing the evidence expired on the 3rd of November, and he did not file them till the 1st of that month, and the defendant did not see them till the 8th, and one of the Vice Chancellors had extended the time to enable the defendant to answer the plaintiff's affidavits, this Court discharged the order. Thompson v. Partridge, 23 Law J. Rep. (K.S.) Chanc. 158; 4 De Gex, M. & G. 794. Consistently with the terms of the SSth section of the statute, and of the 32nd Order of August 1862 made thereon, the parties to a suit may abstain from filing their affidavits till the last hour of the day fixed for closing the evidence in the cause. Ibid. Where the validity of a deed was impeached by the answer, although no cross-bill had been filed to set it aside, the Court refused to allow the plaintiff to prove the deed by affidavit at the hearing, the defendant having elected that the evidence should be taken orally. Hitchcock v. Gairem, 23 Law J. Rep. (n.s.) Chanc. 166; Kay, App. xiv. Where, under a decree directing accounts to be taken, no order was obtained under the S4th section of the statute IS & 16 Vict. c. 86, that the books of account should be taken aspnmii/ocie evidence, but the Judge's chief clerk so admitted them and granted his certificate, the court of appeal, upon a motion to discharge the certificate, refused the same, but without costs. Newberry v. Bmxon, 23 Law J. Rep. (n.s.) Chanc. 1003. P, confiding in the carefulness and secrecy of C, entrusted her from time to time (beginning in the year 1806) with money to invest in the funds on P's behalf. In 1839 P and C had a dispute about the amount belonging to P, and the dispute was termi- nated by S, the nephew of C (who, on account of C's growing age and infirmities, had for some time been accustomed to go with her to the Bank when she received her dividends), who drew up a paper in which it was stated that it was " agreed" that the sum belonging to P amounted to 4,300/. This paper was left in S's custody. For some few years afterwards S, on returning with C from the Bank, regularly paid to P dividends calculated on that sum. In 1845 S took out a commission of lunacy against his aunt and managed the commission. The verdict returned was, that C had been a lunatic since 1842. S was appointed committee of the lunatic. In 1847 S refused to give up to P the paper signed in 1839. P filed a bill against the lunatic and S, and an answer was put in. C died, and on a bill of revivor and supplement, S, who was her personal representative, put in a further answer referring to his first: — Held, that, under the circumstances of this case, the first answer was admissible in evidence against S in the second suit. Stanton v. Percvaal, 24 Law J. Rep. (n.s.) Chanc. 369; 5 H.L. Cas. 257. Qucere — By the Lord Chancellor, whether, as a general rule, the answer of a committee of a lunatic is admissible in a suit against the lunatic's personal representative to bind the lunatic's estate. Ibid. It is open to either party in a suit to produce fresh evidence until the time fixed for closing the evidence; and, therefore, where a plaintiff having closed his case, and stated that he had no further evidence to produce, proposed, after hearing the witnesses for the defendant, to adduce fresh evidence, the Court held, that he was entitled to do so. Wood v. ScaHh, 24 Law J. Rep. (n.s.) Chanc. 392. In a suit which was in the nature of a supple- mental suit, an order was obtained that the evidence in the original suit should be used in the supple- mental suit. A witness was examined in chief by the plaintiff in the original suit, and was also ex- amined by the defendant in the supplemental suit. The Court held, that the same witness might be 294 EVIDENCE— EXECUTION. cross-examined by the plaintiff. Lord v. Colmn, 24 Law J. Rep. (n.s.) Chanc. 517; 3 Drew. 222. It was also held, after consultation between the Judges, that witnesses examined in chief by one defendant may be cross-examined by the other defendants as well as by the plaintiff, and that all the evidence giveneither in chief or on cross-exami- nation will be common to all parties, and every party will have a right to take a copy. Ibid. A witness who was examined for the plaintiff to prove a contract was cross-examined for the defen- dant upon a subject irrelevant to the matter in dis- pute between the parties. The defendant then examined witnesses to contradict the statement made by the plaintiff's witness with regard to such irrelevant matter: — Held, that it was not competent for a party to call witnesses to contradict evidence which was immaterial to the question at issue. The affidavits of the defendant's witnesses were ordered to be taken off the file for containing scandalous and irrelevant matter. Goddard v. Parr, 24 Law J. Eep. (n.s.) Chanc. 783. The evidence of a defendant in favour of a co- defendant is admissible, under the 6 & 7 Vict. c. 85, if it proves the case of the witness himself. Triston V. Hardey, 14 Beav. 21. The cross-examination of a defendant tendered as a witness, is a waiver of his incompetency, where the objection must be assumed to have been known at the time of the cross-examination. Ibid. A motion for an injunction was ordered to stand over, with liberty to bring an action : — Held, that a witness, who had made an affidavit on the occasion might, afterwards and before the trial, be cross- examined under the 15 & 16 Vict. c. 86. s. 40. Lloyd V. Whitty, 19 Beav. 57. Depositions of witnesses examined under a bill to perpetuate testimony in aid of an ejectment, and who were resident abroad and refiised to come to this country, ordered to be published. Biddulph V. Lord Camoys, 19 Beav. 467. A similar application refused, as to a witness in England, who, on account of blindness and infirm state of health, was stated to be unable to leave home, and who had stated his age to be eighty-three. Ibid. The Court will not act on the testimony of a single witness against the express denial on oath of the defendant; but where the written evidence has been destroyed by the defendant pendente lite, the Court will assume that if forthcoming, it would have proved the statement of the single witness. Gray v. Haig, 20 Beav. 219. A witness examined under a bill to perpetuate testimony was very old and unable, through illness, to leave his home without danger; another was resident in Canada. Their depositions were ordered to be published and produced at the trial about to take place, and that either party might make such use of them " as by law they can." Biddulph v. Camoys, 20 Beav. 402. A, without authority, sold a trust estate to B. In a suit to recover the money from A, B, who was not a party, was examined as a witness. A suit was afterwards instituted against the representatives of B to recover the estate itself, and an order of course was obtained in it to use the depositions in the former suit, saving just exceptions. It was dis- charged as irregular. Hope v. LiddeU, 21 Beav. 180. The plaintiff's case was proved by a written docu- ment as well as by the examination of a witness who was also examined in chief by the defendants and in the course of such examination referred to the docu- ment. The plaintiff relied upon the document before the Vice Chancellor, but, on appeal before the Lord Chancellor, rested his case upon the examination of the witness only : — Held, that it was competent for him to do so, and that the defen- dant's objection to the reception of this evidence as secondary, could only be supported by his producing the written document. Ogle v. Morgan, 1 De Gex, M. & G. 359. The meaning of the act 15 & 16 Vict. c. 86. ». 54. is, that where vouchers have been lost or the accounts cannot be taken in the ordinary way, the Court may give special directions; but such directions will not be given unless it appears that the ordinary evidence cannot be had, or merely to save expense. Lodge v. Prichard, 3 De Gex, M. & G. 906; 1 Sm. & G. App. viii. Semble — that by the ordinary rules of the Court partnership books are admissible in evidence for and against all the partners and their estates. Ibid. Semble— that the 15 & 16 Vict. c. 86. s. 54. does not operate retrospectivelj'. Ibid. EXCHANGE. The General Inclosure Acts authorize the Com- missioners to sanction exchanges of estates in sepa- rate and distant counties, and to shift the title, though per the Master of the Eolls, not the tenure of the one estate to the other ; but, per the Lords Justices — quaere. Mvnet v. Leman, 24 Law J. Rep. (n.s.) Chanc. 545 ; 20 Beav. 269. Tenants for life or for other partial intesests may, notwithstanding the settlement under which they hold, initiate such exchanges, so as, when complete, to bind those in remainder. Ibid. A purchaser must complete his purchase of an exchanged estate, though, until the exchange, it was subject to limitations in strict settlement, under which the vendor had only a life interest. Ibid. Commissioners of Inclosure have no powers in exchanging /recAoH lands subject to heriots and re- liefs to make the allotted lands so subject.' Mayor and Corporation of Basingstoke v. Lord Bolton, 3 Drew. 50. EXECUTION. [Upon judgments of inferior Courts, see title In- ferior CoDKT. Landlord's claim for rent, see title Landlord and Tenant. Speedy execution, see IS & 16 Vict. c. 76. s. 120. As to issuing, executing, and renewing, see IS & 16 Vict. c. 76. ss. 121—125; 17 & 18 Vict. c. 125. s. 94 ; and as to the Cinque Ports, 18 & 19 Vict. c. 48. s. 2. As to priority of executions, see 15 & 16 Vict. c. 76. s. 124. And see Reg. Gen. Hil. term, 1853, rr. 70—77, 22 Law J. Rep. (n.s.) xiii ; 1 E. & B. App. xlviii—Sequestra- tion.] EXECUTION— EXECUTOR AND ADMINISTRATOR. 295 ^A) On a SrNDAT and COLLBSIVBLy. (B) Where the Sum recovered does not EXCEED 202. (C) Upon Rules and Orders. (D) Where Judgment registered. (E) What Property may be taken. (F) Elegit. (G) Setting aside. (A) On a Sunday and collusively. The summary remedy provided by the S & 6 Will. 4. c. 76. 8. 60. of committing to gaol town clerka or other officers appointed by a town council, who wil- fully refuse to account or deliver up books, &c. to the council, is in the nature of civil process, and an arrest under such a warrant of commitment upon a Sunday is illegal. JEx parte Eggington, 23, Law J. Eep. (n.b.) M.C. 41; 2 E. & B. 717. Nor can a prisoner so arrested be legally detained under a second warrant, subsequently lodged against him, which has been issued at the instance of the same parties, though not in their capacity of town council, but as Commissioners under alocalact. Ibid. But a detainer under a ca, sa., subsequently is- sued by a third party and without collusion, is a valid ground for refusing to discharge the prisoner. Ibid. Where a return to a habeas corpms states that a prisoner is detained under civil process, it is compe- tent to him to shew, by affidavit, that he was origin- ally arrested on a Sunday. Ibid. (B) Where the Sum recovered does not EXCEED 201. The S7th section of the 7 & 8 Vict. u. 96. enacts that, no person shall be taken in execution on a judgment in an action for a debt where the svm re- covered does not exceed 201. Where judgment was recovered for 6001. on a warrant of attorney given to secure payment of an annuity of 302., but only l&l. was due, the defendant, having been taken in execu- tion, was discharged under that section, the word "recover" being susceptible of two meanings, ac- cording to one of which only \5l. was recovered Dubifa/nte Williams, J. Johnson y. Harris, 24 Law J. Bep. (h.s.) C.P. 40 ; 15 Com. B. Kep. 3S7. (C) Upon Edles and Orders. In an action of trover, by churchwardens, to re- cover a parish book, Erie, J., to whom the cause was referred after verdict, by consent of the parties, made an order, which was made, a rule of court, that the costs of both sides should be paid by' the parish. The cause came on for trial a second time, when, by like consent, it and all matters relating to it were by order of Nisi Prius, which was made a rule-of court, referred to Williams, J., to direct in what manner the order of Erie, J. was to be carried into effect. Williams, J., on the 10th of August 18S2, made an order upon the defendants to pay the plaintiffs their costs on the Ist of March 1853, " unless in the mean time the sum be paid to the plaintiffs out of the parish fiinds." This order was made a rule of court in Michaelmas term 1862, and the defendants not having paid the money on the 1st of March 18S3, execution was issued against them : — Held, first, that the orderof the 10th of August was a Judge's order, and not an award, and that Williams, J. had not exceeded his authority in making it. Gibis v. Flight, 22 Law J. Rep. (n.s.) C.P. 256 ; 13 Com. B. Rep. 803. Secondly, that the order being conditional was not an " order to pay money " within the meaning of the 1 & 2 Vict. c. 110, upon which execution could issue. Ibid. (D) Where Judgment kbqistered. The plaintiff, after making an entry of a judgment obtained against the defendant in the book of the senior Master of the Common Pleas, pursuant to 1 & 2 Vict. c. 110. s. 1 9, with a view of charging the defendant's real estate, took him in execution under the same judgment. The defendant became insol- vent, and his assignee contracted to sell his real estate. The purchaser refused to complete the pur- chase in consequence of the entry of the judgment which charged the property. The plaintiff having refused to consent to an entry of satisfaction being made in the book, the Court, on the application of the assignee, granted a rule ordering the plaintiff's attorney to attend before the senior Master of the Common Pleas and consent to an entry being made, that the plaintiff had taken the defendant in execu- tion under the judgment after having made the entry. Lewis v. jjyson, 21 Law J. Rep. (n.S.) Q.B. 194; 1 Bailee. 33. (E) What Property may be taken. By the 1 & 2 Vict. c. 110. s. 12. money seized under zji.fa. is exactly in the same position as money the proceeds of goods seized. Therefore, where the sheriff seized bank notes and coin under a fi. fa. at the suit of A, against whom he held an un- executed fi. fa. at the suit of B, he was not justified in paying the amount over to B as money belonging to A under the statute. Colli/ngridge v. Paocton, 21 Law J. Rep. (rr.s.) C.P. 39 ; 11 Com. B. Rep. 683; 2 L. M. & P. P.O. 654. (F) Elegit. Under the 92nd section of the Municipal Cor- poration Act, 5 & 6 Will. 4. c. 76, a creditor of a corporation cannot have execution, in respect of a debt which accrued before the passing of the act, against property acquired by the corporation since the passing of the act. Arnold v. Sigge, 22 Law J. Rep. (n.s.) C.P. 235 ; 13 Com. B. Rep. 745. (G) Setting aside. Where judgment has been signed, costs taxed and execution issued for the amount of debt and costs without notice of taxation, the Court will not set aside the judgment or execution, but will direct a review of the taxation. Field v. Partridge, 21 Law J. Rep. (k.s.) Exch. 269j 7 Exch. Rep. 689. EXECUTOR AND ADMINISTRATOR. (A) Grant op Administration. (a) By what JwrisdAction. (6) Operation of; Title by Relation. (B) Rights, Duties and Disabilities. (a) Indemnity against Covenants, 296 EXECUTOR AND ADMINISTRATOR. ( b) Setting off Dehts due to the Deceased. ( c) Carrying on Trade. id) Selling and pledging Estate, e) Right of Action, when suspended. (C) Liabilities. (a) For Testator's Debts. lb) As to Policies. (c) As to Shares in, Public Companies. id) As to Value of Testator's Property. (e) For Default im selling Estate. (f) For Sums im/properly dealt with. (g) For Interest, (h) To Costs. (i) To Co-executors in respect of Assets. (D) Assets. (a) What constitute. (6) Admission of. (c) Administration of . (E) EXEOUTOK DB SON TORT. (F) Actions and Suits by and against. (a) What Actions mmntainaile. lb) When maintainable. Ic) Devastavit. (d) Pleas, le) Set-off. if) Practice. (A) Grant op Administration. (a) By what Jurisdiction. Where a mortgage deed, in the form prescribed by the General Turnpike Act, 3 Geo. 4. c. 126. s. 81, assigned the tolls and toll-houses of a turnpike road, to hold for the residue of the term for which the tolls were granted, unless the mortgage money, with interest, were sooner repaid, it was held that a mort- gage was bona notahilia where the road and toll- houses were situated, and not where the deed was at the time of the death of the mortgagee. Begina V. the Trustees of the Balby and WorTcsop TwrnpiTce Road, 22 Law J. Rep. (h.s.) Q.B. 164; 1 Bail U.C. 134. Under such a mortgage the mortgagee has only an equitable right to enforce payment of the principal and interest, and, consequently, no mandamus will be granted to compel the trustees of the road to pay the interest. Ibid. (6) Operation of; Title by Relation. The distribution of an intestate's estate amongst the next-of-kin before administration granted is not an act for the benefit of the estate ; so that a person who subsequently takes out administration will be entitled to recover the property, although it was dis- tributed with his assent. Morgan v. Thomas, 22 Law J. Rep. (n.s.) Exch. 152; 8 Exch. Rep. 302. (B) Rights, Duties and Disabilities. [See Debtor and Ceeditok.] (a) Indemnity against Covenants. The Court will compel the executors of a testator, who has covenanted to accept and execute a counter, part of a lease, to perform the contract of their tes- tator, although such lease contains personal covenants on the part of the lessee ; but it will see that the covenants are so framed as not to bind the executors personally. Stephens v. Hotham, 24 Law J. Rep. (n.s.) Chanc. 665; 1 Kay & J. 571. The executors of a lessee held entitled to no further indemnity against the covenants than the personal indemnity of the residuary legatees. Dean V. AUen, 20 Beav. 1. (6) Setting off Debts due to Deceased. An executor indebted to his testator's estate created a charge on his (the executor's) own freehold estate in favour of his wife and children, to the amount specified in the testator's will, as part of their share of his residuary estate: — Held, that the wife and children were entitled to the benefit of the charge, although the debt due to the testator's estate remained unpaid. StUweU v. Mellersh, 20 Law J. Rep. (n.s.) Chanc. 356. The executor of A sold A's book debts to B. At the time of A's death, A was himself indebted to several of the persons who appeared as his debtors in his books. The executor, instead of setting off the debts due by A against the debts to him, paid in full the debts due from A. In a suit for the adminis- tration of A's estate,.^Held, that the executor was entitled to be allowed these sums in his accounts. Chich V. Blachmore, 23 Law J. Rep. (n.s.) Chanc. 622; 2 Sm. & G. 274. (c) Carrying on Trade. A testator by his will, after making his debts, funeral and testamentary expenses a general charge upon his estate, gave to his wife A an annuity charged upon his real and personal estate ; he then gave all his real and personal estate to his wife and B upon trust for his son J absolutely; but directed that if J should die under twenty-one, the whole should go to A. The testator appointed A and B executrix and executor, and directed them to continue his business of a coal proprietor during his interest in certain mines, and declared that they should not be liable for any loss to his estate in carrying on such trade, and that they might compound debts and settle all matters relating to his estate. The testator at his death was entitled to a lease of the mines mentioned in his will for a term of years, of which eight years were then un- expired, and he died in 1844. At the time of his death, real estates of the testator were in mortgage to C, but the money was paid off by the executrix, the deeds remaining in the possession of the mortgagee, from whom at a subsequent time the executrix, who had previously married again, borrowed money for the purpose of carrying on the colliery, upon the security of the deeds. The equitable mortgagee filed a bill against the executrix and her husband to en- force this security. One of the Vice Chancellors made a decree in the plaintiff's favour, holding that the executors had the power of pledging the real estate of the testator for eight years after his death (that is, during the residue of the term in the mines), for the purpose of carrying on the business. But, on appeal, — Held, first, that the executors had no such power; secondly, that no portion of the assets beyond that which was employed in the trade at the time of the testator's death could be employed in carrying on the same; thirdly, (the executrix claiming a debt against the estate, the real and personal estate being made subject to the annuity and the payment of the EXECUTOR AND ADiMINISTRATOR. 207 debts, and her husband being entitled to the same debt in her right, and interested in the real estate in respect of the annuity), that the plaintiff was not entitled as equitable mortgagee by virtue of his deposit; but that he was entitled to stand in the place of the husband of the executrix against the real estate of the testator eomprised in the deeds deposited with him, in so far, if at all, as the husband had at the time of such de- posit any claim or demand against the real estate, and, therefore, to an account accordingly. M'Neillie V. Acton, 23 Law J. Eep. (n.s.) Chanc. 11; 4 De X3ex, M. & G. 744; 22 Law J. Rep. (h.s.) Chanc. 820. Held, also, that where a party advances money to an executor under circumstances sufficient to put him upon inquiry, (although as a general rule, where there is a power to raise money for payment of debts, a lender is not bound to inquire, and even if the money be not wanted, and be misapplied, the estate is bound,) he can be in no better position than those with whom he deals. Ibid. A testator who was seised and possessed of real and leasehold estate and of personal property (part of the leasehold being a colliery) specifically devised part of hia real estate to his son, and then devised and bequeathed all the residue of the real and the whole of his personal estate to trustees upon trust, .at some convenient time, with the approbation of his son, to sell and convert the same, and raise and invest and apply l,000i. upon certain trusts, and to pay two life annuities, and then to pay his, the testator's, daughter an annuity of 200i. a year for her life, over and above half the income of the real and personal estate given to the trustees. The tes- tator then directed that the daughter's annuity should not exceed 600i. a year, and that the profits of the mine should not be deemed income until 1 OZ. per cent, was set apart for expenses; and he gave all his property, subject to the legacy and annuities, to his son, and empowered his trustees to let his son into possession of all the property upon his securing the legacy and annuities. He appointed his two trustees and his son executors. At the death of the testator his debts exceeded the amount of the pure personalty. The son alone proved the will, the trustees having. disclaimed the trusts and renounced probate. The son entered into possession of the whole pro- perty.' The. colliery was worked out and yielded a profit of altogether 27,0OOZ. The daughter filed a bill against her brother and other parties for the ad- ministration of the testator's estate : — Held, that the son, having acted as sole executor and trustee, could not be allowed to make a profit of the trust; that the clear income of the colliery formed part of the capital of the testator's personal estate, and that, although the colliery ought to have been sold twelve months after tlie testator's death, yet, not having been so, the son was not entitled to have its value ascertained at that time and to be only charged with that sum and interest, but that the 27,00OZ. must be treated as part of the general personal estate, the son being allowed his reasonable expenditure on the colliery. Lord v. Wiglitwick, 23 Law J. Eep. (n.s-) Chanc. 235 ; 4 De Gex, M. & G. 803; 1 Drew. S76. Three executors and trustees (A, B and C) were authorized to carry on the testator's farm. A. (with the eoncuiTonce of B and C) managed the whole Digest, 1850—1855. affairs relating thereto : — Held, that in taking the accounts against B and C, A was to be considered their agent. Toplis v. liurrdl, 19 Beav. 423. Three executors were authorized to lend trust monies to A. One of the executors (C) employed part of the trust monies in his business. In 1812 A and C entered into partnership, when A took upon himself the debt, and gave security for the money to the executors. The amounts with further ad- vances were employed in the business, but the whole with interest was fully repaid. The ^esteis que trust after long delay insisted that they were entitled to a share of the profits made by the employment of .the trust funds in trade, but the Court held that the transaction amounted to a loan to A under the power, and dismissed the bill with costs. Parlcer v. Bloxam, 20 Beav. 295. (d) Sellmg and pledging Estate. E H, by will, after charging all his real and per- sonal estate with the payment of his debts, funeral and testamentary expenses, and of a certain legacy, gave and devised the rents and profits of all his messuages, tenements, farms and lands, except his Bala houses, to A H his wife ; and by the same will he gave her the whole of his personal estate and appointed her sole executrix : Held, that the Bala houses passed to the heir-at-law of E H, subject in equity to the charge of debts, and that A II had no power to dispose of them for the purpose of paying the debts. Doe d. Jones v. Hughes, 20 Law J. Eep. (n.s.) Exch. 148 ; 6 Exch. Eep. 223. An executor borrowed money upon a representa- tion that it was wanted for the purposes of his testa- tor's estate. The money was lent upon the personal security of the executor, who afterwards mortgaged part of the testator's property as a security for the money antecedently advanced : — Held, by the Vice CIrancellor, that the onus of proof lay on the person who advanced the money, to shew that it was applied for executorship purposes : but held, on appeal, that there was no evidence to shew that the advances were not made for executorship purposes; and the bill was dismissed. Miles v. Burnford, Burnford v. Wood, 21 Law J. Rep. (n.s.) Chanc. 667; 2 De Gex, M. & G. 641; 2 Sim. N.S. 234. The plaintiff was the representative not only of the executor, who had borrowed the money, but also of the original testator, and in the latter character he sought to impeach the mortgage : Held, by the Vice Chancellor, that the plaintiff, although he w;is executor of the original testator, in which character he might sue, could not repudiate the character of representative to the executor, who could not sue : but held, contra, on appeal. Ibid. An administratrix mortgaged the leasehold estates of an intestate, and gave the mortgagee a power of sale in case of default in payment of the mortgage- money : — Held, that a purchaser under such power was bound to accept the title. Russell v. Plaice^ 23 Law J. Rep. (n.s) Chanc. 441; 18 Beav. 21. If a testatrix has taken a doubtful security for money advanced, her executor, if after making all possible inquiries he thinks it expedient, will be justified in making further advances cut of the assets, to render the security available. OolUnson v. Lister, 24 Law J. Eep. (n.s.) Chanc. 762; 20 Beav. 356. 2Q 298 EXECUTOR AND ADMINISTRATOR; (C) Liabilities. An executor, however, will not be justified in bor- rowing money when no previous inquiries have been made, or when, had they been made, there would have been no apparent advantage in doing so. Ibid. (e) Right of Action, when suspended. The rule that when a creditor is appointed exe- cutor by his debtor, his right of action is suspended, because he is presumed to have retained the amount of his debt, and is the person both to pay and re- ceive, applies only where the executor has received assets. Lowe v. Peskett, 24 Law J. Rep. (h.s.) C.P. 196; 16 Com. B. Eep. 507. Semble — per Jei'vis, C. J. and Crowder, /., that it applies only where he has had legal assets, and not equitable alone. Ibid. The rale does not apply where the debt arises on a negotiable instrument, which has been legally trans- ferred by the executor. Ibid. (C) Liabilities. (a) For Testator's Debts. [See title Frauds, Statute of.] A, at his death, left among his papers two letters sealed, and directed to the plaintiff (who had been his housekeeper for some years, but had left his service after giving birth to a child, of which he was the father) containing two promissory notes for 400?. and 200/. respectively. In one letter the note was said to be " in consideration of the long and faithful services of the plaintiff"; in the other he had written " in addition to any sum I owe you I inclose 200/. as a mark of my respect." The defendants, who were the executors of A, paid 200/. after his death on account of these notes to the plaintiff, and pro- mised, in writing, to pay the residue, but subse- quently declined to do so ; and the plaintiff brought an action of assumpsit against them, in which were counts upon the notes, and a count upon an account stated with the defendants as executors : — Held, that the testator's estate was not liable in respect of the notes, as they had not been delivered by him to the plaintiff, and could not operate as testamentary dis- positions, because not in conformity with the 1 & 2 Vict. c. 26. (the Wills Act); and held, also, that the defendants were not liable upon the count for an account stated, because the payments and promise had been made under a mistake as to the liability of the testator's estate, and without consideration. Gough V. Tindon, 21 Law J. Eep. (h.s.) Exch. 68; 7 Exch. Rep. 48. The right of a succeeding rector to bring an action for dilapidations against the executor or adminis- trator of his predecessor rests upon particular cirstom, derived from ecclesiastical law; and it is an incident of such custom that the claim in respect of dilapi- dations is to be postponed in the distribution of assets to the payment of specialty and simple con- tract debts. Bryan v. Clay, 22 Law J. Rep. (s.s.) aB. 2.3; 1 E. & B. 38. Where therefore to a declaration in case, upon the custom, the defendant, an executor, pleaded that, alter the commencement of the suit, and before plea, he had paid and satisfied a bond debt, and several other debts due from the testator at his death, and that at the commencement of the suit he had fully admir.is'ered all the goods and chattels of the testator at the time of his death, which had come to his hand to be administered, except goods and chattels of a value which were not sufficient to satisfy the said bond and other debts paid by the defendant, — Held, on demurrer, that the plea was a good answer to the plaintiff's claim for dilapidations. Ibid. A testator by will devised 400/. to his daughter Mary, and, in the event of her dying without issue, the same to be divided amongst such of his other children as should be then living. Mary died with- out issue, the testator's other children having died iu her lifetime. Edward, the son and executor of the testator, covenanted by indenture with the defendant, another son, that the latter should apply the share of Mary, viz. 400/., towards the purchase of an estate, which Edward the executor had sold to him; that that sum should continue in his, the defendant's, hands, and be payable with interest to Edward, the executor, or to Mary; and that the defendant should be chargeable with such principal money as might become payable agreeably to the will of the testator. The indenture then witnessed, that in consideration of the said sum of 400/. trust money, &c, by these presents lent to the defendant, the latter covenanted with the executor for payment to him for the use of Mary of so much of the said principal money as might become payable agreeably to the said recited will. The plaintiff was the admi- nistrator of Edward, the executor: — Held, that this was money lent, and that the defendant was bound to repay it to the plaintiff, and was not entitled to delay pa\ ment, for the purpose of paying it to the administrator de bonis non of the original testator as soon as he should be appointed. Dodd v. Dodd, 24 Law J. Eep. (n.s.) Exch. 162; 10 Exch. Eep. 878. (6) As to Policies. At the death of a testator a sum of 4,000/. was due to the estate by a person whose life was insured for 2,500/. After the testator's decease his executor, finding that the debtor was quite incapable of pay- ing either the debt or premiums, effected a further insurance on his life for 2,500/. for seven years. After paying three premiums, the executor, of his own accord, allowed the policy to drop, on the ground that the assets of the testator were insufficient to meet the debts and legacies. Upon bill filed to render the executor liable for the full amount of the second policy, it was held, that the executor, having effected the policy, had made himself a trus- tee of it for the testator's estate, and was not justi- fied in allowing it to drop without the consent of the cealMi c. of Lichfield, 24 Law J. Kep. (n.s.) Q.B. 360. Trespass for pulling down a cottage. Plea : not guilty, by statute. The plaintiff was convicted by three Justices, under statute 5 & 6 Will. 4. c. SO, for an encroachment on a highway. The defendant, who was surveyor of the highways, pulled down the plaintiff's cottage, which was what the conviction referred to, but which was not in fact an encroach- ment within the meaning of the Act. No warrant issued directing the defendant to do the act : — Held, that statute 5 & 6 Will. 4. c. 60. ». 69, requires the surveyor to execute a conviction under that Act, by pulling down the encroachment, though there is no warrant; and that consequently the conviction, though not itself correct, was a defence to this action, as defendant was shewn to be in the position of a person bound to execute the judgment of a tribunal of competent jurisdiction. Keane v. Bey- nolds, 2 E. & B. 748. JUVENILE OFFENDERS. [See stats. 13 & 14 Vict. c. 37. and 17 & 18 Vict, c. 86.] LABOURER. [See Master and Servant.] LANCASTER. [Courts of, see stats. IS & 16 Vict. c. 76; 17 & 18 Vict. cc. 82, 125; and 18 & 19 Vict. cc. 15, 45, S8.] LANDLORD AND TENANT. [Recovery of possession, see Edma/rds v. Hodges, title Justice op the Peace, (B) (a).] (A) Of the Tenancy. (a) From, Tear to Tear. (J) At WUl. (o) Determinaiion. " ( 1 ) Surrender. ( 2 ) Notice to quit. (3) Forfeitwe, for insufficient Distress. (B) Contracts between. (a) For Repairs. ( 5 ) Relating to Husbajtidjry. \ c ) For gmet Enjoyment, {d) To give up Possession. (C) Op the Rent. la) Contracts, (i) Payment. (c) Apportionment, id) Arrea/rs. (e) Action for. (D) Tenant's Power to dispcte Landlord's Title. (E) Attornment. (A) Of the Tenancy. (a) From Tea/r to Tear. An agreement, dated the 19th of April 1841, by which part of a dwelling-house was let, stipulated for " the yearly rent of 42i. payable quarterly, the first payment of 71. 13*. 6d. to be made on the 24th of June next, being the proportion of rent from the 19th of April 1841 to that date." , And, further, that the tenant should hold and enjoy the possession " until one of the parties should give to the other six calendar months' notice in wilting to quit at the ex- piration of any such notice" : — Held, that a yearly tenancy was not created, and that a six months' notice to quit, expiring on the Sth of December, was a sufficient notice to put an end to the tenancy. 382 LANDLORD AND TENANT; (A) Op the Tenastcy. Doe A. King v. Grafton, 21 Law J. Rep. (n.s.) Q.B. 276; 18 Q.B. Rep. 496. M H and W R, by indenture of February 1805, granted and leased certain premises unto and to the use of J H, his heirs, executors, administrators and assigns for ever, yielding and paying therefor a yearly rent. Proviso for re-entry on non-payment of rent. Covenant by J H for payment of the rent, for repairs, and for insurance ; — Held, that, in the absence of proof that the premises were at the date of the instrument in the occupation of tenants, and the expressed intention of the parties precluding the presumption of livery of seisin, the instrument could not operate as a conveyance of the fee subject to a rent-charge, but only to create a tenancy from year to year. Doe A. Roherton v. Gardener, 21 Law J. Rep. (n.s.) C.P. 222; 12 Com. B. Rep. 313. Semlle — that if it had been necessary to presume livery of seisin in order to account for the possession under the instrument, the Court would have made that presumption. Ibid. Under an agreement to let for three years, though it is void as a lease for three years by the statute 8 & 9 Vict. c. 106. s. 3, the tenant holds from year to year, subject to the terms of the agreement, and is bound to quit at the expiration of the three years without a previous notice to quit. Tress v. Savage, 23 Law J. Rep. (n.s.) Q.B. 339; 4 E. & B. 36. Where a party became tenant, for a period ex- ceeding three years, under a lease, void at law as not being made by deed under the 8 & 9 Vict. c. 106. 8. 3, and the receipts given to him for rent, which he had paid for two years, stated the rent to be payable in advance ; — Held, that he became a yearly tenant, on the terms of paying the rent in advance. Lee v. Smith, 23 Law J. Rep. (n.s.) Exch. 198; 9 Exch. Rep. 662. A tenant holding over after the expiration of a lease for years may be taken to hold upon any of the terms of such former lease which are consistent with a yearly tenancy. Whether he does hold on any of such terms or not is a question for the jury on the facts proved. Hyatt v. Griffiths, 17 Q.B. Rep. SOS. A covenant in a lease for years ending at Michael- mas, that the tenant shall and may retain and sow forty acres of wheat on the arable land demised (consisting of 213 acres) at the seed time next after the end of the term, and have the standing thereof till the harvest then next following, rent free, with the use of premises for the threshing, &c. till a day named, is a term which may be made incident to a tenancy from year to year. Ibid. (6) At Will. Where a party having created a tenancy at will afterwards becomes insolvent, the vesting order and notice thereof to the tenant at will operate as a determination of the tenancy. Doe A. Davies v. Thomas, 20 Law J. Rep. (n.s.) Exch. 367; 6 Exch. Rep. 854. A tenant at will cannot put an end to his tenancy, even by an assignment, without giving notice to his Inndlord, Pinhom v. Souater, or Sonster, 22 Law J. Rep. (n.s.) Exih. 266; 8 Exch. Rep. 763. J \V HjbeiTig tenant of copyhold premises, granted a lease for twenty-one years, from Christmas 182.'!, renewable for another term of twenty-one years. In 1838 he died, and H H, L H, and B H were ad- mitted tenants by the lord as devisees. Previous to 1847, L H married A Y B, and in January of that year H H, R H, A Y B, and L, his wife, granted a lease of the premises to J M for twenty-one years, from Christmas, 1 844, with covenant for further re- newal, J M having previously purchased the interest of the preceding lessee. On the 24th of May 1847 J M leased to Quested; who, on the 29th of July in the same year, executed a mortgage of the premises to the defendant. By this deed Quested granted and demised the residue of his term except one day to the defendant, with a proviso for redemption on pay- ment of principal and interest at certain periods, and covenants for payment of the principal and inter- est. The deed also provided that Quested should hold the premises as tenant at will of the defendant at a yearly rent, for which rent the defendant might distrain, and that the rent thereby reserved should go in satisfaction of the principal and interest, and the residue (if any) to Quested. Quested subsequently as- signed to E F without notice to the defendant, and the rent above reserved being in arrear, the defen- dant distrained on the premises in pursuance of the above power. The warrant was to distrain the goods of Quested. The plaintiff's goods, being on the pre- mises, were taken : — Held, in an action of trespass for this seizure, that the above deed created a tenancy at will, which was not put an end to by the assign- ment to E F without notice to the defendant, and that the distress was regular. Ibid. Held, also, that a sufficient primd, facie title was made without proof of the death of J "W" H. Ibid. (c) Determination. (1) Surrender. The first count of the declaration averred that the plaintiffs C and S, being tenants to H of certain chambers, at a certain rent, payable quarterly, under- let them to the defendant, who undertook to pay the said rent to H, and agreed that if he did not do so, he would indemnify the plaintiffs in respect thereof, and that the defendant did not pay the rent to H, nor indemnify the plaintiffs: — Held, that whether the contract meant that the defendant was to pay to H the rent due from the plaintiffs to H, or to pay the rent under the demise from the plaintiffs, the promise of the defendant to pay did not extend beyond the term of his own tenancy. Pleas Sixth, surrender by operation of law; seventh, that the plaintiff C, on behalf of himself and the plaintiff S, agreed with the defendant that he should give up possession of the chambers, and that he did give up possession before the rent became payable; eighth, that C, with the sanction and authority of his co- plaintiff evicted the defendant; eleventh, (to counts for use and occupatioji, and on an account stated,) discharge of the defendant under the Insolvent Debtors Act ; — Held, that these pleas were good. Replication to the sixth plea, a special traverse, alleging that the defendant quitted possession of his own wrong; and that, according to the terms of an agreement, the plaintiffs recovered possession of the chambers, to the intent that they might let them for the benefit of the defendant, and not otherwise, absque hoc that they were duly surrendered : Held bad, on demurrer, because the inducement was in- consistent with the traverse. Replication to the LANDLORD AND TENANT; (B) Contbaots between. 383 seventh plea, traversing the agreement by the plain- tiff C on behalf of himself and S, and his perfonnance of the agreement; and replication to the eighth plea, traversing the eviction by C, with the sanction and authority of S : — Held bad, on general demurrer, as both being too large, from putting in issue the fact that C had authority from B. Eeplication to the eleventh plea, as to the third count, that the cause of action accrued after the order and adjudication in that plea mentioned : — Held bad, as amounting to an argumentative denial of the allegation in the plea, that the order and adjudication were made after the causes of action accrued. Smith, or Coles, v. Lovell, 20 Law J. Eep. (k.s.) C.P. 37; 10 Com. B. Eep. 6; 1 L. M. & P. P.O. 794. In an action of debt for rent on a demise for seven years the defendant pleaded, that whilst the demise was in force, and before the accrual of the rent, it was agreed between him and the plaintiff that the plaintiff should make certain alterations, and that in consideration thereof he the defendant should relinquish his interest under the demise, and take a new lease for seven years; and until such new lease should be tendered, that he should remain tenant from year to year ; that the plaintiff did make the alterations, and that be the defendant, in pursuance of the agreement, relinquished his interest under the lease, and entered upon the premises under the agreement; and that by means of the s:iid premises, he the defendant was tenant from year to year, and that his title under the lease was surrendered. Issue was taken on this plea, and at the trial no written agreement was proved, but the jury found a verdict for the defendant: — Held, that the agreement was an entire agreement, and the part relative to a lease for seven years being required to be in writing under the Statute of Frauds, no part of it could be proved by parol. Forqytet v. Moore, 22 Law J. Eep. (n.s.) Exch. 35; 7 Kxch. Rep. 870. A new letting to an old tenant, commencing im- mediately, operates as a surrender of the original term, because the lessor could have no power to create the new term if the original term had subsisted; and, for a like reason, a new letting to a third party, with the assent of the original tenant, has the same opera- tion. M'Bonnell v. Pope, 9 Hare, 705. The above principle forms the ground of the deci- sion in Thomas v. CooJc (2 B. & Ad. 119), and the authority of that ease ought not to be carried further than the reason on which it rests. Ibid. (2) Notice to quit. An agreement, dated the 19th of April 1841, by which part of a dwelling-house was let, stipulated for " the yearly rent of 421. payable quarterly, the first payment of 71. 13s. 6d. to be made on the 24th of Junenext, being the proportion of rent from the 19th of April 1841 to that date." And, further, that the tenant should hold and enjoy the possession " until one of the parties should give to the other six calen- dar months' notice in writing to quit at the expira- tion of any such notice": — Held, that a yearly tenancy was not created, and that a six months' notice to quit, expiring on the Sth of December, Was a sufficient notice to put an end to the tenancy. Doe d. Kinc/ v. Qrafton, 21 Law J. Eep. (w.s.) Q.B. 276. Though payment and acceptance of rent accruing after the expiration of a notice to quit amounts to a waiver of the notice, a demand of such rent does not necessarily operate as a waiver; and it is a question for the jury, and not for the Court, whether, under the circumstances of the case, the notice has been waived. Blyth v. Dennett, 22 Law J. Eep. (ir.e.) C.P. 79; 13 Com. B. Eep. 178. Under an agreement to let for three years, though it is void as a lease for three years by the statute 8 & 9 Vict. c. 106. s. 3, the tenant holds from year to year, subject to the terms of the agreement, and is bound to quit at the expiration of the three years without a previous notice to quit. Tress v. Savage, 23 Law J. Eep. (n.s.) Q.B. 339 ; 4 E. & B. 36. The defendant entered as tenant, under a written agreement, on the 7th of May 1850, but paid no rent : — Held, that a six months' notice to quit, ex- piring on the 7th of May 1851, was a good notice. Doe d. Cormiall v. Matthews, 11 Com. B. Eep. 675. (3) Forfeiture, for insufficient Distress. [See 15 & 16 Vict. c. 76. s. 210.] On a motion for judgment under section 210. of the Common Law Procedure Act, it is no objection to an affidavit that it alleges that more than half a year's rent is due, and that no sufficient distress is to be found on the premises countervailing the arrears then due. Doe d. Powell v. Boe overruled. Cross V. Jordan, 22 Law J. Eep. (n.s.) Exch. 70; 8 Exch. Eep. 149. (B) Contracts between. {a) For Repairs. An agreement, under which the defendants became tenants to the plaintiff, stipulated that the defendants would maintain and keep the demised premises in good tenantable repair and condition (the same being first put into good tenantable repair and condition by the plaintiff), and in such repair and condition deliver up the same at the expiration of the tenancy : — Held, in an action for a breach of the agreement by the defendants in not keeping and delivering up the premises in good repair, that the plaintiff's obli- gation to put in repair was a condition precedent and not divisible; and, therefore, that performance to the extent only of puttingapart of the preraisesin repair, did not entitle the plaintiff to recover for a breach hy the defendants as to that part. Neaie v. Eatcliffe, 20 Law J. Eep. (n.s.) Q.B. 130; 15 Q.B. Eep. 916. To a declaration on a covenant to repair, alleging that the defendant, during the term, to wit, on &c., and thence hitherto, permitted the premises to be out of repair, the defendant pleaded that, during the said term, the defendant did not permit the said pre- mises to be out of repair: — Efeld, that the plea was too large a traverse, as it put the whole time in issue. Aldis V. Mascm, 20 Law J. Eep. (n.s.) C.P. 193; 11 Com. B. Eep. 132. Covenant by the administratrix of the lessor, R L M, and the assignee of the lessee (W E). The declaration was upon an indenture containing a cove- nant by W E that he would, at his own costs, repair and put into good repair all the messuages, &c., the said W E having been allowed by the said ELM iOOl. 17». 8rf., being the valuation of the then dilapi- dations, exclusive of naked rough timber (but not on the stem), which was to be allowed by the said ELM 384 LANDLORD AND TENANT; (B) Coktbacts between. on some part of the demised premises, and that the said W E, his executors, administrators and assigns, would, at their like costs, from time to time, and at all times during the remainder of the term, repair and keep in good repair the said messuages, &c., being allowed timber as aforesaid, and bricks, tiles and stones on the said premises, or within five miles thereof, the stones to be dug, and, with the timber, &c., to be carried at the expense of the said W E, his executors, administrators and assigns, and would deliver up the premises, so repaired, at the expiration of the said term, and also would, during the said term, in every instance not in the indenture specified, use and cultivate the premises in a good husbandlike manner, and according to the custom of the country. There were also specific covenants as to the mode of cultivation. Covenant by R L M to find and pro- vide timber as aforesaid, to enable the said W E, his executors, administrators and assigns, to repair, and put in repaur the said premises, and after they had been put into good repair by and at the expense of the said W E, his executors or administrators, the said K L M would, during the remainder of the term, from time to time, within one month after request made, such request being made at a seasonable time of the year, find and provide sufficient rough timber as aforesaid, and also bricks, &o., for repairing the premises. The declaration then alleged that the de- fendant became assignee of the term, and so continued until the expiration thereof, and that.although the said R L M was ready and willing at all times to find for the said W E, and since the assignment, &c. the defendant and the said W E, sufiicient naked rough timber and rough timber not on the stem, to enable the said W E and the defendant to repair, &;c., of which notice, &c., and although the said W E did not, before the said assignment, repair or put into good repair the said premises, and although the said R L M performed all things on his part, yet the de- fendant did not, at any time after the said assignment, repair or put into good repair the said premises, and did not yield them up well and sufiiciently repaired, and that the defendant from the time of the assign- ment until the expiration of the term, in all instances not in the said indenture particularly specified, used and cultivated the premises in a bad, unhusbandlike manner, and not according to the custom of the country. Third plea, as to so much of the second breach as charged the defendant with not repairing, and for leaving premises out of repair, that the said R L M was after the assignment to the defendant, and more than one month before any breach by the de- fendant, and at a reasonable time of the year, requested by the defendant to provide sufficient timber, and also bricks, &c. on the premises, or within five miles thereof, for repairing, and that the defendant was ready to fetch, carry, and dig them at his own ex- pense, yet the said R L M would not provide the said timber, bricks, &c. Fourth plea, to so much of the second breach as charged the defendant with per- mitting the premises to be out of repair, and with leaving them out of repair, that the said R L M did not at any time from the assignment until the expi- ration of the term provide sufiicient rough timber (not on the stem) to enable the defendant to put the premises into repair. The defendant then demurred to so much of the second breach as was not pleaded to by the third and fourth pleas, on the ground that it was not shewn that naked rough timber (not on the stem) was found by the said R L M, and that the covenant to put into repair was personal to W E and not binding on the defendant, and that it was con- sistent with the breach that the premises had been put into repair by some one to whom they came by assignment before they came to the defendant. The defendant also demurred to the last breach of cove- nant, on the ground that it was uncertain in not pointing out what the custom of the country was, and how far it applied to the premises, and in not shew- ing the particular acts which constituted the breach of good husbandry, and because it was not averred that the said R L M during the said term provided rough timber or bricks, &c., or that the premises were ever put into such a state of repair as was provided by the indenture. The plaintiff demurred to the third and fourth pleas on the ground that readiness and willingness on the part of R L M to find the timber, and notice thereof, formed the only condition precedent on his part to be performed : — Held, first, that the covenants to repair and to yield up the pre- mises in repair ran mth the land, and were continuing covenants to the end of the term ; secondly, that readiness and willingness to find rough timber was a sufficient performance of the condition precedent relating thereto ; thirdly, that the allegation of the breach for non-cultivation, according to the custom of the coimtry, was sufficiently certain, as it followed the words of the covenant, and that the separate covenants for specific acts of cultivation were not irreconcileable with the custom of the country; and, fourthly, that the third plea alleging that materials were not found by the lessor was bad, as the breach to which it was pleaded was in respect of not putting the premises in repair, and the condition for providing the materials mentioned in the plea applied only to the future repairs, after the premises had been put in repair. Ma/rtyn v. Chte, 22 Law J. Rep. (n.s.) as. 147. As between the landlord and tenant of premises let from year to year there is no obligation upon the former to do substantial repairs, in the absence of an express stipulation to that effect. Therefore, a de- claration, which stated that the plaintiff had become tenant from year to year to the defendant of a house, that during the tenancy a certain chimney, without the default of the plaintiff, became insecure and out of repair, and that the defendant, after notice, refused to repair it, whereby it fell during the tenancy and injured the house, was held not to be maintainable. Gott v. Ocmdy, 23 Law J. Rep. (n.s.) Q,B. 1; 2 E. & B. U6. A declaration in covenant stated that G, who was lessee of premises for a term of ninety- nine years expiring on the 25th of December ] 849, during the term underleased to V and S for twenty-five years and a quarter, from the 25th of December 1823;"that, by this underlease, V and S jointly and severally covenanted with G, his heirs, executors, adminis- trators and assigns, that they, their executors, admi- nistrators and assigns, would, during the term granted to them, repair the premises, and at the end of the term deliver them up in repair to G, his heirs, &c.; that V and S entered, and that, during the under- lease, G granted his reversion to S (one of the under- lessees) and the plaintiffs, whereupon the term in the underlease was, as to one undivided sixth part. LANDLORD AND TENANT; (B) Contracts between. 38S mei^ed in the reversion, and S and the plaintiffs be- came, 33 joint tenants, possessed of the reversion of three undivided sixth parts of the premises, and the plaintiffs became, as joint tenants, possessed of the reversion of twajether undivided sixth parts of the pre- mises; that V afterwards assigned his interest in the underlease to S, and that thereupon the term granted by the underlease, as to one undivided sixth part, merged in the reversion in the three sixth parts whereof S and the plaintiff were possessed, and the plaintiffs became, as joint tenants, possessed of the reversion of two of the last-mentioned three sixth parts; that S died before the determination of the underlease; and alleged, as a breach, that, after S's death, V had neglected to repair, and to leave the premises in repair. The defendant paid money into court as to all the causes of action, except not leaving in repair at the end of the term; and as to such not leaving in repair at the end of the term, pleaded, that the premises were demised by .L for the term of ninety-nine years in the declaration mentioned to persons who assigned to 6, with covenants to keep and leave in repair ; that after G had demised to V and S, and before the assignment by S to V, V and S by deed demised the premises to T for twenty- three years from the 25th of June 1825, with cove- nants by T to keep and leave in repair. The plea then stated the death of T, and the devolution of his estate to M E T, his widow and executrix ; and that L, the person then entitled to the reversion, after the deaths of S and T, and during the continuance of all the terms, brought an action of covenant against the present plaintiffs for breaches in not rep^ing ; that an agreement in writing for settling the action was made, on the 12th of July 1844, between L, the plaintiffs, M E T, and the son of T, but without the privity or consent of V; whereby MET agreed to pay L 3002. and the costs of the action, and all rent up to the 24th of June then last, and the plaintiffs, as trustees of the property of G, agreed to pay L 2002. ; and MET agreed to deliver to the plaintiffs possession of the property; and the plaintiffs agreed to deliver up to F (a depositary) the indenture of lease for the benefit of L, but to be produced from time to time for the purpose of supporting any claim by the plaintiffs upon V, or any other person, for the recovery of any rent due or to become due to the plaintiffs, or contribution, &c. in respect of any monies to be paid by the plaintiffs under that agreement, in respect of the liability of the plaintiffs under the lease, or for any damages under any covenants con- tained in any underlease of the premises; and that when all such claims should have been satisfied, or in any manner put an end to, the said F should deliver the lease to L, and also that MET should, at the request of L or the person entitled to the reversion of the premises, execute a surrender of the lease; and the plaintiffs thereby agreed to concur in surrendering or assigning their interest in the said lease as L or the- person entitled to the reversion might require; and L also s^eed to accept the above sums, when paid, in full satisfaction of all claims, &c. whatsoever, under or by virtue of the said lease, for rent, dilapidations, or otherwise. The plea then stated, that the action was put an end to on the terms in the agreement specified; and that afterwards, in pursuance of the agreement, and at the instance and request, and with the privity, consent and procure- DioEST, 1850—1855. ment of the plaintiffs, but without the privity or con- sent of V, and before the terms, or either of them, had expired by effluxion of time, the possession of the premises was given up by M E T to L, who there- upon, without the privity or consent of V, entered into and kept possession thereof until, and at and after the expiration of that term by effluxion of time; and that by means of the premises, after the posses- sion had been so given up, V had been prevented from entering into the said premises and repairing the same, and from yielding up the same well repaired, and had been absolutely and necessarily hindered from keeping, and that it became impossible for him to keep, the covenant in that behalf as he might and would otherwise have done: — Held, on demurrer to the plea, that the prevention mentioned in the plea was stated only as a conclusion of law from the facts before alleged. That although V might be unable to perform his covenant during the twenty-three years for which the underlease to T had been granted, yet that he might have entered at the termination of that underlease for the residue of the term granted to him and S ; and that there was no- thing, therefore, to prevent him from then repairing according to his covenant. That the agreement, coupled with the giving up possession, could not, and was not intended by the parties to operate as a sur- render of the interest of the plaintiffs to L. Badehy V. Vigwra, 23 Law J. Eep. (n.s.) Q.B. 377; 4 E. & B. 71. Held, also, that the declaration was good, as the whole of the reversion which remained was vested in the plaintiffs alone, in respect of which they were entitled to sue on the covenant to repair. That under the conveyance by G to S and the plaintiffs, one-third of the reversion was at once destroyed by coalescing with half the interest under the lease which was in S; and that, consequently, S never took as reversioner; and there never was any suspension of the right of action by reason of S being a party to ' sue and be sued. That even if S took and remained interested in one-sixth of the reversion until that one-' sixth was destroyed by the assignment to him by V, still the right of action for not leaving in repair;- which arose only at the termination of the leasfej never accrued to S, and therefore was never sus- pended; the doctrine of a right of action being gone by suspension applying only to the case where there has once been a subsisting right of action, and not to a case where the objection is, that if it had accrued earlier, it could not have been enforced from the fact of the same person then being the party both to sue and be sued. That the plaintif& might recover on the privity of contract, transferred by the 32 Hen. 8. K. 34, although there were an apportionment of the covenant to repair; but that, in. the present case, there was no such apportionment, as the plaintiffs had the whole existing reversion, and were injured if the whole of the premises were not kept in repair. That the plaintiffs might recover on the privity of contract, transferred by the statute of Hen. 8, where the entire interest in the covenant had not passed to them. Ibid. < Covenant by lessee against an assignee for damages occasioned by the non-repair of premises by the assignee whilst he was such, pursuant to his covenant. It appeared that in 1843 the plaintiff assigned the' lease to the defendant; that in October 1 85 1 the 3D 386 LANDLORD AND TENANT; (B) Contracts between. defendant assigned to one T; that in June 1852 T assigned the lease to H, who, in August 1852, sur- rendered it to the ground landlord. Evidence was given for the plaintiff, that when H held the lease the premises were out of repair, and T stated that he put the premises in no better state than when he received them from the defendant. No further evidence was given, and the defendant was not called as a witness : — Held, that the Judge was right in directing the jury to give substantial damages; and that the jury were warranted in presuming that the dilapidations took place during the time the defendant held the lease. Smith v. Peat, 23 Law J. Rep. (h.s.) Exch. 84; 9 Exch. Rep. 161. The defendant became the lessee of premises, which at the time of taking them were old and in bad repair, under a demise containing a covenant to repair. The premises were destroyed by fire. The cost of reinstating them would amount to l,635i., but when so reinstated they would be more valuable by 600i. than they were at the time of the fire : — Held, that the defendant was liable to pay the sum of 1,035^. only, as damages for the non-repair, that being the amount of the plaintiffs' loss. Tates v. Dunster, 24 Law J. Rep. (n.s.) Exch. 226; 11 Exch. Rep. 15. (5) Sdating to Mushandry. A declaration stated that the defendant had become and was tenant to the plaintiff of a farm upon the following, among other stipulations ; that the defendant should not sell any hay, straw, &c. grown upon the said farm without the licence of the landlord under a specified penalty; and that the said penalty so made payable should be considered as additional rent, and recoverable by distress or otherwise as rent; and that in consideration thereof the defendant promised the plaintiff that he would pay all such penalties as he might be liable to pay according to the said stipulations for or in respect of any hay, straw, &c. which should be grown on the said farm, and sold by the defendant without the licence of the landlord. Averment, that the defen- dant without the licence of the plaintiff sold divers quantities of straw grown on the said farm during the last year of the said tenancy, whereby the defen- dant became liable to pay the said penalty. Breach, that he had not paid. Plea, that the said straw so alleged to have been sold was sold by the defendant after ihe determination of the said tenancy, and not otherwise. On special demurrer to the plea: Held (by Lord Campbell, C.J. and Patteson, J., disientiente Erie, J.) that the plea raised an imma- terial issue, and was no answer to the action. Massey v. Goodall, 20 Law J. Rep. (n.s.) Q.B. 526; 17 QB. Rep. 510. It is not an unreasonable custom that a tenant who is bound to use and cultivate his farm according to the rules of good husbandry and the custom of the country, should be entitled on quitting the farm to charge his landlord with a certain portion of the expense of the necessary drainage of the farm done without his landlord's consentor knowledge. Mousley V. Zudlam, 21 Law J. Rep. (n.s.) Q.B. 64. A testator, being the owner of B house and land and of two cottages, and the lessee of Little B farm from Miss M, and of certain crown lands, for a term of fourteen years expiring at Michaelmas 1849, and being desirous of selling B house and land, entered into a negotiation with the plaintiff for the sale thereof, and let to the plaintiff for one year B house and land, from the 29th of September 1848, by an agreement, in which the testator agreed that if he should be able to obtain a further lease from the Crown for fourteen years he would grant the plaintiff the same for thirteen years. By a subsequent agree- ment, the plaintiff, after stating that he was desirous of securing the occupation of Little B farm and lands, adjoining the B house and lands, and held by the testator of Miss M and of the Crown, agreed to take the said lands belonging to Miss M and the Crown, as under-tenant to the testator, "subject to the same rents, covenants and obligations in all respects as provided for in the leases by which Mr. C (the testator) holds or shall hold the same." By the terms of the Crown lease the custom of the country, which was, that the landlord should pay to the out-going tenant for fallows, half fallows, &c., was excluded. The plaintiff, on entering upon the Crown lands, paid the testator for fallows, half fallows, &o. The Crown lease, at the request of the plaintiff, not having been renewed by the testator, but having expired by effluxion of time at Michael- mas, 1849 : — Held, that the plaintiff, as out-going tenant, was entitled to be paid by the executors for fallows, half fallows, &c., the custom of the country to that effect not having been excluded by the agreements between the parties. FavieU v. Gashoin, 21 Law J. Rep. (n.s.) Exch. 85; 7 Exch. Rep. 273. To a declaration in trespass for assault, the de- fendants pleaded a justification in defence of the possession of a dwelling-house. The plaintiff new assigned that the trespasses were committed, not in a dwelling-house, but on a certain bridge and in certain yards and fields, parcel of a farm. The plea to the new assignment stated that W was possessed of the dwelling-house, and also of the bridge, yards, and fields, which belonged and were adjacent to the dwelling-house, and then justified the trespasses in defence of the possession of the house, bridge, yards, and fields, and then averred that the defendants removed the plaintiff from the bridge, yards and fields, and took him by the nearest way to n puSlic highway near to the dwelling-house, bridge, yards, and fields. The replication alleged the seisin of W in the farm, the demise of it by him to J as tenant from year to year, the entry of J, an assignment by J to B, to secure a debt, of the present and future growing crops on the farm, with a power to B, in default of payment, to take possession. It then alleged a default by J; that W, at the time of the default, was in possession of the farm, on which there then were growing crops which belonged to J after the date of the assignment; that the plaintiff, as servant of B, took possession, and continued in possession of the growing crops for a reasonable time; and that before a reasonable time had elapsed, the defendants removed him, and dragged him from the dwelling-house, across the bridge, yards, and fields, to the highway : — Held, that the plea was good, as it confessed and justified the trespasses committed on the bridge, yards, and fields, which were all that were alleged in the new assignment; and that the allegation in the plea, admitting that the defendant dragged the plaintiff from the bridge LANDLORD AND TENANT; (C) Op thb Reht. 387 to the highway might be treated as surplusage, as it was not made a ground of complaint in the new assignment. Haylimg v. Ohey, 22 Law J. Rep. (k.s.) Exch. 139; 8 Exch. Rep. fiSl. Held, further, that the replication was bad, aa it did not shew any right in B to place a person on the premises to retain 'possession of the growing crops after J's tenancy had come to an end, and the land- lord had regained possession; and that if B's right to do so depended upon the mode of the termination of the tenancy or the nature or condition of the crops, the replication ought to have set forth the circumstances which abridged ihe primd fade rights of the owner of the farm to remove all other persons from it. Ibid. A usage for arbitrators appointed to determine, as between outgoing and incoming tenants of a farm, the value of the away-going crop and the deductions for want of repairs of the farm buildings and fences, to make their award, on inspection of the crops and premises, without notice to the parties and without evidence, may be good ; but no usage can justify the arbitrators in hearing one party and his witnesses only, in the absence of and without notice to the other party. Oswald v. Grey, 24 Law J. Rep. (if.s.) a.B. 69. In an action by an outgoing tenant against his landlord for the value of hay and straw left on the premises, it appeared that the plaintiff held, subject to the terms of a draft lease, by which it was agreed, first, that the tenant was to consume the hay and straw on the premises, and not to sell it except as afterwards mentioned; secondly, that the tenant might sell his hay and wheat-straw (except the last year's) provided for each load he brought back two loads of dung or equivalent manure on the lands ; and, thirdly, that all the hay and straw not used for fodder arising from the last year's crop should be left on the determination of the tenancy, the tenant being paid at a fair valuation. It appeared in evi- dence, that the words " fair valuation" had been substituted in the draft for the words " consuming price." An umpire who had valued the hay and straw, neither at a market price nor at a consuming price, but at a fair valuation between outgoing and incoming tenant, was the only witness as to the value. The amount at a " consuming price" had been paid into court, and a verdict was given for the amount of the " fair valuation." It was contended, for the defendant, that, according to the terms of the agreement, a " fair valuation" must mean a " con- suming price." The Court held, without considering the effect of the alteration in the draft, that the plaintiff was entitled to keep his verdict, it being a matter of evidence what is a "fair valuation," and the only evidence on the subject being that of the umpire. Cumberland v. Glamis, 24 Law J. Rep. (N.S.) C.P. 46; IS Com. B. Rep. 348. Qucere — whether this Court could take into con- sideration the alteration in the terms of the draft lease. Ibid. (c) For Quiet Enjoyment. Upon a parol demise, the law will imply an agreement for quiet enjoyment, but not for good title. Where, therefore, a tenant under a written demise, containing no agreement for quiet enjoyment or for good title, having been distrained on by the grantee, of an annuity charged upon the land pripr to the demise, in an action against his landlord alleged in his declaration breaches for quiet enjoy- ment, and for good title, and obtained a verdict, the Court granted a new title, on payment of costs by the plaintiff, to enable him to amend by striking out of the declaration the allegation as to covenant for title. Bandy v. Ga/rtwright, 22 Law J. Rep. (N.s.) Exch. 286; 8 Exch. Rep. 913. ( (Z ) To give ii/p Possession. In a lease for forty-two years, which contained numerous covenants by the lessee, there was a pro- viso that if the lessee should desire to quit at the end of the first eight years, and should give eighteen months' notice beforehand of such desire, then and in such case, all arrears of rent being paid, and all covenants and agreements on the part of the lessee having been observed and performed, the lease should at the expiration of the eighth year cease, deter- mine, and be utterly void, as if the whole ternr of forty-two years had run out. The proviso concluded thus : " but, nevertheless, without prejudice to any claim or remedy which any of the parties hereto, or their respective representatives, may then be entitled to, for breach of any of the covenants or agreements hereinbefore contained" : — Held, that a performance of all the covenants by the lessee was a condition precedent to his right to determine the lease by notice. Friar v. Grey (in error), 20 Law J. Rep. (n.s.) Exch. 365 ; 5 Exch. Rep. 584 : affirmed 4 H.L. Cas. 566 ; s.P. and s.o. 16 Q.B. Rep. 891. (C) Of the Rent. [See title Distress.] ((s) Contracts. [See ante, (A) (c) (1).] A lessee covenanted to pay a certain rent, subject to a proviso for increasing or reducing it every year, according to the average price of wheat in everjr year (such average to be ascertained from the cur- rent year's average, under the Tithe Commutation Act, 6 & 7 Will. 4. c. 71. s. 56). These returns give an annual average computed from the averages of the last seven years, and no averages of the one year only: — Held, nevertheless, that the parties must be taken to be bound by the septennial average, published annually as the average for the year, Kendall v. Baker, 21 Law J. Rep. (n.s.) C.P. 110; 11 Com. B. Rep. 842. The defendant entered into a written agreement with the plaintiff to take certain premises at a rent of 20i. a week, payable on demand, and subject to four weeks' notice to quit on either side. During the continuance of this tenancy, a verbal agreement was made between the parties that the rent should be 16s. a week, and the defendant for several weeks paid this reduced amount, and on one occasion sub- mitted to a distress : — Held, that there was no fresh demise, and that the original rent continued to be the rent payable for the premises, and therefore that no proceedings could be taken in the county court under the 122nd section, as the jurisdiction of that Court does not attach where either the rent or the value of the premises exceeds 50/. a year. Crowley 388 LANDLORD AND TENANT; (C) Of the Rent. V. ViUy, 21 Law J. Rep. (n.s.) Exoh. 135j 7 Exch. Kep. 319. Replevin. Avowry, that the plaintiff was tenant to the defendant at a rent of iOOl. a year. The plaintiff heing the owner of a fann and lessee of the tithe commutation rent-charge, under the Dean and Chapter of W, at a rent of 601. a year, let the land verbally to the defendant at a rent of iOOl. a year, tithe free : Held, that as by the 80th section of the Tithe Commutation Act, 6 & 7 "Will. 4. c. 71, in the event of the defendant distraining for the tithe rent, she would be compelled to allow the same to the plaintiff in account, the plaintiff was tenant to the defendant at a rent of 400;., and therefore that the avowry was proved. Meggison v. Bowes, and Sells V. Bowes, 21 Law J. Rep. (N.s.) Exch. 284; 7 Exch. Rep. 685. A, by a contract in writing, demised to B, at a yearly rent of 145^ from the 14th of May 18S1, certain premises, including a cottage occupied by C at the rental of 51. a year. B took possession of all the premises included in the demise except the cot- tage, as C refused either to go out or to attorn to B. Before the day fixed for the first half-yearly pay- ment of rent, A and B verhaUy agreed that A should receive from C some arrears of rent, and that A should pay B 701. on the 14th of November 1851, and 701. on the 14th of May 18S2 :_Held, that this was a new demise, and that A was entitled to distrain for the 701. due on the 14th of November. Watson V. Ward, 22 Law J. Rep. (n.s.) Exch. 161; 8 Exch. Rep. 335. (5) Payment. Where a lessee covenants to pay rent at the time and in the manner reserved in the lease, no place of payment being named^ it is no defence to an action upon the covenant that the lessee was upon the land demised on the day the rent became due, with the money ready to pay the lessor, but that the lessor was not there ready to receive it. Haldwne v. John- son, 22 Law J. Rep. (n.s.) Exch. 264; 8 Exch. Rep. 689. (c) ApporiioTvment. A declaratiMi in account stated that A and B, tenants in common in fee, made a lease with a general covenant on the part of the lessee to pay the rent (without saying to whom) on Michaelmas and Lady- day. A died, and on the following Lady-day the tenant paid half a year's rent to B. It appeared at the trial that B, the plaintiff, the heir-at-law of A, received 12s. 6d. from B; but he claimed 61. 5s. which was the amount of half of the half-year's rent:— Held, that the Judge rightly directed the jury that B had received more than his share of the rent, and that he was accountable to the plaintiff for the excess. That the Statute of Apportionment, 4 Will. 4. c. 22, does not apply as between the exe- cutor and heir of a tenant in fee — confirming Browne V. Amijot — 3 Hare, 173 : s.c. 13 Law J. Rep. (n.s.) Chanc. 232. That as the demise purported to be a joint demise by tenants in common, with a general reddendmm not specifying to whom the rent was pay' able, the rent followed the reversion, and on the death of A, the reversion was spht, and the plaintiff became entitled to his share of the rent. Beer v. Beer, 21 Law J. Rep. (n.s.) C.P. 124;-12 Com. B. R'ep. 60. Held, also, on motion in arrest of judgment, that the declaration, which was in the usual form, was good, without any allegation that after a request to account a reasonable time had elapsed before the action was brought. Ibid, (cZ) Arrears. A landlord levied a distress for rent, and before he sold the tenant was adjudicated bankrupt, and then the sale took place under the distress. The Com- missioner decided that the landlord was only en- titled to retain one year's rent; but on appeal, — Held, that the landlord was, under the 42nd section of the 3 & 4 Will. 4. c. 27. (the Statute of Limita- tions) entitled to six years' rent out of the proceeds of the sale. Esc pa/rte Bayly, m re Laugher, 22 Law J. Rep. (n.s.) Banki. 26, Interest on arrears of rent and an apportionment, as between landlord and tenant, disallowed. Peert V. Sneyd, 17 Beav. 161, (e) Action for. J W and the plaintiff, being trustees under the will of W W, in 1847 demised a house to the de- fendant by indenture for four years ending at Michaelmas 1851, J W died in January 1848, An action for use and occupation having been brought by the plaintiff for rent accrued subsequently to January 1848, — Held, that the plaintiff was entitled to maintain the action, and was not bound to sue as surviving trustee. Wheatley v. Boyd, 21 Law J. Rep. (N.s.) Exch. 31; 7 Exch. Rep. 20. A let a house to B as tenant from year to year, and afterwards granted a lease by deed to C of the house and other property for twenty- one years: — . Held, that this transferred the reversion of the house to C, and that A could not recover against B for rent due after the lease. Sa/rmer v. Bean, 3 Car. & K, 307. (D) Tenant's Power to dispute Landlord's Title. A lease, granted under a power contarined in a settlement, recited the title of the lessor, and shewed that he had only an equitable interest, A right of re-entry for a breach of the covenants in the lease was reserved to the lessor and his assigns: Held, first, that the lessee was not estopped from disputing the title of the lessor so disclosed in the lease; and, secondly, that " assigns " meant assigns of the settlor; and that although the right of re-entry could not be well reserved to the lessor, yet that the owners of the reversion under the settlement for the time being were entitled to take advantage of it as '* assigns.** Q-reenwway v. Hart, 23 Law J. Rep. (n.s.) C.P> 115; 14 Com. B. Rep, 340. (E) Attornment, A demise by way of grant for a term of years to commence immediately, made by a -person entitled to an estate in tail in remainder expectant upon the determination of a life estate, during the lifetime of the tenant for life, operates as a conveyance of an estate for years carved out of the remainder, and vests the estate immediately in the grantee without entry, by virtue of the statute 4 Ann. c 16. s. 9, which makes such a conveyance effectual without an actual attornment of the tenant of the particular LANDS CLAUSES CONSOLIDATION ACT. S89 estate upon which the remainder is expectant. , Doe d. Agar v. Brown, 22 Law J. Rep. (n.s.) Q.B. 432; 2E.&B. 331. LANDS CLAUSES CONSOLIDATION ACT. (A) Purchase by Agreement. (B) Compulsory Powers of Purchase. (a) When they may ie exercised, (h) What is am Exercise of . (c) Taking part of a Manufactory. (C) Notice to take Lands. (D) ASSBSSMENT OF COMPENSATION. (a) By ArKtraiion. (1) In what Cases. (2) Appoimiment of Arbitrator. (8) Declaration hy Arbitrator and Urn- pi/re. . (4) Form amd Validity of the Award. (5) Costs of Arbitration. (6) Taking vrp the Awa/rd. (J) By a Jury. (i) WaiTant to svmmon Jury. (2) Qualification of Jury. (c) For ijohat Corwpensation may ie assessed. (d) Costs of the Inquiry. (E) Entry on Lands. (F) Application of Compensation. (a) In, Discharge of Incumbrances, ii) Pwrchase ^ other La/nds. (c) Where Lamd is in Lease. (d) Payment of small Sums to Pa/rties. (e) Investment of Compensation. (/) Costs of Deposit amd In/iiestmen,t of Ccrni- (G) Conveyance of Copyhold Lands. (A) Purchase by Aqbeement. A railway company, who were promoting in par- liament a bill for an extension of their line, which, if made, would pass through the lands of the plain- tiff, covenanted with the plaintiff, " that in the event of the proposed bill passing in the then session of parliament, the company should, before they should enter upon any part of the plaintiff's lands, pay to him 4,900i. purchase-money for any portion not ex- ceeding forty-three acres, which the company might, under the powers of their act, require and take for the purposes of their undertaking ; and that, in addi- tion to such purchase-money as aforesaid, the company should pay to the plaintiff, before they should enter upon any part of his said land, 7,100^., as landlord's compensation for the damage arising to his estate by the severance thereof, in respect of the lands not ex- ceeding forty-three acres to be taken by thetn :" — Held, that the company were not liable to pay either of these sums unless they entered upon some part of the plaintiff's lands. Qage v. the Newmarhet BaU. Co., 21 Law J. Rep. (n.s.) Q.B. 398. Held, also, that an absolute covenant to pay these sums to the plaintiff by the company would be 4Ura mres and vpid. Ibid, (B) Compulsory Powers of Purchase. (a) When, they may be exercised. Where a railway company is called upon by a landowner, over whose land their line is authorized to be made, but to whom no notice requiring his land has been given, to proceed to complete their railway and to purchase the land necessary for the purpose, it is no answer to a rule for a mandamus for that purpose, that the period prescribed for the exercise of the powers of compulsory purchase by the company has nearly expired, unless it is also shewn that it ia impossible for them to take the initiatory steps towards purchasing the land in ques- tion. Eegima v. the Torje, NewcasUe amd Berwick Bail. Co., 20 Law J. Rep. (n.s.) Q.B. 503| 16 Q.B. Rep. 886 : s. P. Begina v. tJie Lamcashire and York- shire Bail. Co., 20 Law J. Rep. (n.s.) Q.B. 507, n. Qu(sre — How far there is a legal obligation upon a railway company who have obtained an act of par- liament authorizing them to construct a line of rail- way over certain lands, to make and complete their railway. Ibid. The 1 Geo. 1. c. 24, by section 1 , empowered cer- tain persons to make the river Kennet navigable, and to dig and cut through the banks of the said river, and to erect in the said river, and upon the lands adjoining, weirs, pens, dams, &c., and to do all matters and things necessary for making, maintaining, or im))roving the said navigation, the said under- takers first giving satisfaction to the owners of such lands, weirs, &c. as should be digged, cut, or removed, or otherwise made use of, as the Commissioners named for the purpose should direct, in case the undertakers should not beforehand have agreed with the proprietors of such lands and hereditaments con- cerning the same. By section 2. Commissioners were appointed to mediate between the undertakers and the owners of lands and hereditaments intended to be made use of, and to settle eatisfiiction for such portion of the lands as should be cut, digged, or made use of; and a provision was made for filling up vacancies in the body of the Commissioners. By section 18. if any person should sustain damage in his mills by the owners of the navigation taking away or diverting the water, or any similar injury, the Commissioners should, by a jury impannelled as therein directed, assess such damage and award compensation to the party injured. The proprietors of the navigation obstructed the water Sowing to the defendant's mill by the erection of a dam, under the powers of the above act. All the Commissioners appointed under the act had died, and there were no Commissioners in existence by whom compensation could be assessed : — Held, under these circumstances, by Wightmam, J., Erie, J., and Crompton, J., that the powers of the proprietors to raise weirs for the necessary purposes of the navigation did not cease by reason of the right of the mill-owner to recover com- pensation for consequential damages through the Commissioners being lost. Held, by Lord Camp- bell, C.J., that the power to raise the weir and cut off the water flowing to the defendant's mill, could only be exercised during the continuance of the body of Commissioners, and that upon their extinction, the extraordinary powers of the proprietors ceased. The Kennet and Avon Carnal Namgation Co. v. », 21 Law J. Rep. (n.s.) Q.B. 419. 390 LANDS CLAUSES CONSOLIDATION ACT. Qvicere — whether any mode of recovering compen- sation by action or otherwise existed. Ibid. The 11 & 12 Vict. c. 43. (which did not come into operation until six weeks after its passing) by section 11. provides, that where no time is limited for making complaints or laying informations under acts of par- liament, such complaint shall be made and such in- formation laid within six calendar months from the time when the matter of such complaint or informa- tion arose : Held, that an order of two Justices, under the 8 Vict. c. 18, awarding compensation for damage done to a landowner by the construction of a railway, was within the above clause of the 11 & 12 Vict. c. 43. Eegina v. the Leeds and Bradford Sail. Co., 21 Law J. Rep. (n.s.) M.C. 193; nom. In re Sdmundson, 17 Q.B. Rep. 67. Held, also, that the above section had a retrospec- tive operation and invalidated such an order, where the complaint was not made within six calendar months from the time when the damage complained of occurred, although the order itself was made more than six months before the passing of the 11 & 12 Vict. c. 43. Ibid. By a railway act (with which the Lands Clauses Act was incorporated) a company was empowered to take a manufactory, belonging to A, In June 1853 the company gave A a notice that they required a part of this property. On the 11th of July A gave a notice to the company that he required them to take the whole of it. On the 27th of July the com- pulsory powers given by the special act expired. In September 1864 the company sent a letter to A, proposing to purchase the whole of the property. No agreement having been come to, the company on the 2nd of November gave A a notice of their intention to summon a jury to assess the value. On a motion by A for an injunction to restrain the com- pany from proceeding, — Held, that the requisitions of the Lands Clauses Act had been complied with, and that the company was authorized in proceeding with the purchase. Schwinge v. iJie Lmdon amd Blackwall Rail. Co., 24 Law J. Rep. (k.s.) Chanc. 405; 3 Sm. & G. 30. A notice given by a railway company under the 18th section of the Lands Clauses Act, and a counter- notice given to the company under the 92nd section, but the assent of the company to the counter-notice not given until after the expiration of the compul- sory powers given by the special act, — Held, that the notice, counter-notice and assent constituted the relation of vendor and purchaser, and that the com- pany was authorized by the special act to take the property which was comprised in the counter-notice. Ibid. A notice given under the 18th section, and a counter-notice given under the 92nd section, and an assent to take the property given by the company : — Held, first, that a fresh notice was not required to be given by the company under the 18th section; secondly, that the term of twenty-one days men- tioned in the 21st section was not applicable to that state of circumstances; but, thirdly, that the com- pany was bound to afford to the landowner an op- portunity for treating before proceeding to have the value settled by a jury. Ibid. Compulsory clauses in public acts of parliament will authorize the taking of lands, although the same are inalienably settled upon a family by act of parlia- ment, and the person having the present interest may sell and convey such lands. But no interest in the Crown can be affected without its being specially named in the particular act. In re the Cuckfidd Bwrial Board, 24 Law J. Rep. (n.s.) Chanc. 585; 19 Beiv. 153. Where land was taken for the purposes of a gaol hy Justices of a borough whose powers were after- wards taken away by the legislature and together with new powers given to other bodies, — Held, that the corporation of the borough represented the Justices, and that they must pay the costs of obtaining the money out of court. In re the Jus- tices of Coventry, 24 Law J. Rep. (n.s.) Chanc. 686; 19 Beav. 158. The service of a petition upon a material party does not necessarily insure him his costs. Ibid. (5) What is an Exercise of. The ascertaining the amount of compensation after lands have been entered upon and taken under section 85. of the Lands Clauses Consolidation Act is no exercise of a compulsory power on the part of the company. Doe d. Armistead v. the North Staffordshire Rail. Co., 20 Law J. Rep. (n.s.) Q.B. 249; 16 Q.B. Rep. 526. Section 68. applies to the case of lands entered upon and used under section 85; and the landowner is in such case bound to initiate proceedings for settling the compensation. Ibid. A was the owner of a field, the whole of which was contained in the books of reference of a railway company, but fifteen perches of it lay beyond the limits of deviation laid down in the plans. The company served a notice upon A requiring part of the field for the purpose of the railway. A then gave notice to the company that if they took part they must take the whole, to which they agreed. A afterwards receded from his notice. The company then entered upon the whole under section 85. of the Lands Clauses Consolidation Act : — Held, that the question, whether the fifteen perches were neces- sary for the works, was for the jury, and also that A having required the company to take the whole could not object that their entry on that portion was unlawful. Ibid. The expression " deviation," in 8 Vict. c. 20. B. 15, is used with reference to the medium jWmn of the railway as laid down in the parliamentary plans. Ibid. ' A notice given by a railway company to a land- owner requiring his land for the purpose of the undertaking, is an exercise of the powers for the compulsory purchase of land within the meaning of section 123. of the Lands Clauses Consolidation Act, 1845, and if such notice be given within the pre- scribed period, the steps necessary to acquire the possession of the land may be taken afterwards. The Ma/rguis of Salistv/ry v. tAe Qreai Northern Rail. Co., 21 Law J. Rep. (k.S.) Q.B. 185; 17 dB. Rep. 840. The entry on land, under section 86, is not the exercise of a power for compulsory purchase, hut is the exercise of a power for carrying that purchase into effect. Ibid. (c) Taking Part of a Manufactory. By the special act for a railway company certain LANDS CLAUSES CONSOLIDATION ACT. 891 clauses were introduced, requiring the securing to the owner of a certain property particular benefits by arching, making roads, &c., if that property or adjoin- ing property were taken. By another section no building was to be erected on part of the land re- quired by the company; and by another section, the company were required to buy certain specified pro- perty. The 92nd section of the Lands Clauses Con- solidation Act requires a company, if it takes part, to take the whole of a manufactory, and that act was incorporated with the special act. The company gave notice of an intention to take a small strip of land which was within the boundsiry line of a manu- factory, but which was not, at the time of the passing of the special act, nor at the time of the notice, built upon, but which was soon afterwards covered with buildings: — Held, first, that the land proposed to be taken formed part of a manufactory within the ineaning of the 92nd section of the Lands Clauses Consolidation Act; and secondly, that the sections in the special act were not inconsistent with the 92nd section of the general act. Sparrow v. the Oxford, Worcester, cmd Wohierha/mpton Rail. Co., 21 Law J. Rep. (n.s.) Chanc. 731; 2 De Gex, M. & G. 94; 9 Hare, 436. At the hearing, the company produced evidence to shew that what they required could be attained by making a tunnel under the land, and so not touch any part of the surface; but the Court held, that it was not competent for them to set up such a case at the hearing; and semble, that such a tunnel would be taking part of a manufactory; and finally, — Held, that where the construction of an act of parliament, which gives authority for the compulsory taking of land, is doubtful, it should be construed most favour- ably to those who seek to protect the land from innovation. Ibid. (C) Notice to take Lands. A notice under the 68th section of the 8 Vict. c. 18. was served upon a clerk of the promoters of the Blackburn Railway Company at their office, being addressed " To the promoters of the Blackburn and Clitheroe Railway Company." There was no railway company of the latter name, but the railway in question ran from Blackburn to Clitheroe. The company had not been misled : — Held, that the notice was good. Eastha/m v. the Blackhim Sail. Co., 23 Law J. Eep. (n.s.) Exch. 199; 9 Exch. Rep. IBS. A variance in the descriptions of hereditaments in the notice to treat and in the precept to the sheriff, under the 8 & 9 Vict. c. 1 8, is an irregularity merely, and is waived by appearing before the jury sum- moned to assess compensation, and, after the objec- tion taken and overruled, proceeding in the trial. Ex parte Bailey, I Bail C.C. 66. An annuitant having power of entry and distress, to secure his annuity charged upon certain leasehold houses, was served with notice by a railway company of their intention to buy. The company subse- quently purchased the property from a prior mort- gagee, who had a power of sale. The annuitant filed a bill, not containing any allegations of fraud, or other improper conduct on the part of the com- pany in their purchase from the iirst incumbrancer, praying payment of the annuity and all arrears, or of the amount proper for the redemption of the annuity : —Held, reversing the decision of one of the Vice Chancellors, that the plaintiff was not entitled, on such a bill, to the relief he asked, and it was dis- missed. Bill V. the Oreat Northern Sail. Co., 23 Law J. Rep. (n.s.) Chanc. 524; 5 De Gex, M. & G. 66 : reversing 23 Law J. Rep. (n.s.) Chanc, 20. A railway company, under the powers of an act of parliament authorizing them to widen their line, gave notice in July 1853, three days before the ex- piration of their compulsory powers, to the owners of certain manufacturing premises which lay on each side of the railway, of their intention to widen the railway, by means of beams resting on piers, not touching the manufactory; and that they were will- ing to treat for such right of way or easement. Immediately thereupon the proprietors gave a counter-notice, under the 92nd section of the Lands Clauses Act, requiring the company to purchase the whole of their premises. In May 1854 the company gave the owners notice of their intention to summon a jury to assess the value of the easement. On a bill filed by the owners, an injunction was granted, by Wood, V.C., restraining the company from pro- ceeding on their notice unless they would purchase the whole of the manufactory, the plaintiffs under- taking to sell the same. The company then aban^ doned their first notice, and gave notice of their intention to summon a jury to assess the value of the whole manufactory. A second bill was then filed to restrain the company from proceeding on this notice, and an injunction was granted ex parte in the vacation, by the Lord Chancellor, which injunction was subsequently dissolved by Wood, V.C.,who was of opinion that the company hadaright to take such an easement under the compulsory powers of the act ; — Held, upon appeal, affirming the decision below, but upon different grounds, that the plaintiffs by giving the counter-notice had esta- blished an equity against themselves, disentitling them to an injunction, and that the first injunction was properly granted upon terms. Pinchm v. the London and Blackwall Bail. Co., 24 Law J. Rep. (n.s.) Chanc. 417; 6 De Gex, M. & G. 851; 1 Kay & J. 34. SemMe, per the Lord Chancellor, an easement is not " land" within the meaning of the Lands Clauses Consolidation Act. Ibid. Specific performance of a contract by a railway company to purchase an interest in land, enforced at the suit of the vendor as falling within the provisions of the Statute of Frauds, in a case where the con- tract arose out of a notice to treat given by the com- pany, and where the proof of the writing was found in documents which had their origin in an intention to carry out the purchase under the provisions of the company's special act and the Lands Clauses Con- solidation Act, 1845. Inge-v. the Bvcmmgham, Wol- verhampton and Stour Valley Sail. Co., 3 De Gex, M. & G. 658; 1 Sm. & G. 347. To what extent the Court wiU interfere to compel the specific performance of contracts for .the pur- chase of land exclusively, under acts of parliament containing special provisions for that purpose guare. Ibid. A railway company is not entitled to take posses- sion of land under the provisions of the Lands Clauses Consolidation Act, 1845, until it has settled, not only with the persons in possession of the land, but also 392 LANDS CLAUSES CONSOLIDATION ACT. with all persons having any interest therein — semble. Ibid. A corporation having under an act of parliament a right to take land for the purpose of certain public works, gave notice to the owner of the inheritance of an intention to take it. They then entered regularly upon the land for the purpose of surveys, &c., and afterwards their contractors, without the knowledge of the corporation, but with the assent of the occupy- ing tenants, brought some waggons and rails and other implements on the lands, and there left them, but did not commence the works or do any damage. This was done»without obtaining the assent of the plaintiff, but it became known to his agent at the end of December. In the beginning of the following February, without any previous communication with the defendants, he filed his bill for an injunction to restrain them from allowing the waggons, &c. to re- main on the land, and from taking possession of the land, until they had complied with the provisions of the Lands Clauses Consolidation Act : — Held, that though the corporation were bound by the acts of their contractors the acts done were not a taking possession within the meaning of the act, and the bill was improperly filed. Standish v. &e Mayor of Liverpool, 1 Drew. 1. (D) Assessment of Compensation. (M.C. 127; 1 Dears. C.C. 369, (6) Determination of Maitment. The prisoner was employed by the prosecutor to sell clothes on commission. The prosecutor fixed the price of each article, and the prisoner was intrusted with the articles to sell at that fixed price, and he was to bring back the money or the goods if they remained unsold. The prisoner on one occasion took away a parcel of clothes on these termsr but instead of selling them he fraudulently pawned part and fraudulently applied the residue of them to his own use: Held, that there was but one bailment of all the separate articles forming the parcel; that the original bailment was determined by the unlawful act of pawning part of them; and that consequently the subsequent fraudulent appropriation of the residue amounted to a larceny. Regina v. Poyur, 20 Law J. Rep. (n.s.) M.C. 191; 2 Den. C.C. 233. The prisoner was convicted of larceny under the following circumstances. The prisoner was a com- mon carrier, and was employed by the prosecutor to carry a cargo of coals from a ship to a coal yard, and thence to another yard belonging to the prosecutor. The prisoner carted the coals to tlie first-mentioned coal Y.ard, and was engaged for several days in carting them from thence to the prosecutor's other yard. He left the first-mentioned coal yard on one of those days with two carts and a waggon all laden with coals; before he arrived at the other yard he delivered the two cart-loads to a third person on his own account; but he duly delivered the waggon-load at the prose- cutor's other yard ; — Held, that the conviction was wrong, the coals having been delivered to the pri- soner as a carrier, and there haring been no breaking of bulk or other determination of the bailment. Re- gina V. Cornish, 1 Dears. C.C. 425. (6) As regards the Thing laJcen. Pigeons if tame and reclaimed -may be subject* of larceny, though not in a state of confinement, but living in an ordinary dove-cote, which aflFords them free access at their pleasure to the open air. Regina v. Cheafor, 21 Law J. Rep. (s.s.) M.C. 43. An executory contract in writing, which requires a stamp, is not, though unstamped, the subject of lar- ceny; as it is merely evidence of a chose in action; and a person stealing it cannot be convicted on a count charging him with stealing a piece of paper — Parke, B. dissentiente. Regina v. Watts, 23 Law J. Rep. (H.Si) M.C. 56; 1 Dears. C.C. 326. Mortgage deeds which are subsisting securities for money, and therefore choses in action, are not properly described in an indictment as goods and chattels, Regina v. Powell, 21 Law J. Rep. (h s.) M.C. 78. (B) From a CorifTiNO House. The prisoner was indicted for stealing money from a counting-house. The proof was that he stole money from a building called " the machine-house," on the premises of a person who had large chemical works. Ail goods sent out were- weighed in this building, and in it the men's time was taken and wages paid. The books in which the men's time was entered were brought to the building for the purpose of making the entries, Init were kept in another building on- the premises called '* the office," where the general books and accounts of the concern were k-ept : — Held, that there was evidence that the building was a counting-house within the act 7 & 8 Geo. 4. c. 29. s. 15. Regina v. Potter, 2ff Law J. Rep. (N.s.) M.C. 170. (C) By Clerks and Servants. [See Stat. 14 & 16 Vict. c. 100. s. 13.] N sent his servant to a railway station to purchase a quantity of coals for him. The wharfinger at the station, on the servant's application on behalf of his master, weighed the coals out, and entered them against N's name in his book. The coals were then put into N's cart, and the servant drove it off, it being his duty to take the coals to his master's house. On his way home, the servant improperly appropriated some, of the coals to his own use, and deposited them at another person's house: — Held, that the servant's original exclusive possession of the- coals was determined, and his master's constructive possession of them commenced, when they were de- posited in the master's cart ; consequently that the servant, by afterwards taking thera, committed a trespass, and was gciilty of larceny. Regina v. Reed, 23 Law J. Rep. (n.s.) M.C. 25; 1 Dears. C.C. 257. It was the duty of the prisoner, who was a ser- vant of the prosecutors, in the absence of their chief clerk, to purchase and pay for, on behalf of his masters, any kitchen stuff brought to their premises for sale. On one occasion he falsely stated to the chief clerk that he had paid 2s. 3rf. for kitchen stuff which he had bought for his masters, and demanded to be paid for it. The clerk on this paid him 2s. 3e Bea/weoir v. J)e Beauvoir, 6 Law J. Dig. 384 : affirmed 3 H.L. Cas. 524.] The bequest of a legacy to a person or the wife of a person who has signed his name as a witness in a will, win not take effect, although it may be alleged {dehors the will) that the vritness signed only as attesting the marks of two previous witnesses (both marksmen) to the execution of the will. Wigan v. Rowland, 23 Law J. Rep. (n.s.) Chanc. 69; 11 Hare, 157. (S) Description of Legatee. A testatrix gave the interest of certain money in the funds to her daughter Mary for life, and after her decease the capital to be divided between the hus- bands of her daughters and her son, or such of them as might be living at the decease of her daughter Mary. One of the daughters married a second husband, after the death of the testatrix, who was living at the death of the tenant for life : — Held, that the testa- trix meant to designate the particular husbands living at the time she made her will, and that the second husband was not entitled to a share of the trust fund. Ex parte Bryan's Trust, 21 Law J. Rep. (n.S.) Chanc. 7; 2 Sim. N.S. 103. The Court will not hold a testamentary disposition to be void for uncertainty if there is a reasonable de- gree of certeunty as to the testator's intention. There- fore, where a testatrix bequeathed a legacy to the wife of a person by the name of one of their daugh- ters, an infant of tender years, — Held, on claim by the husband and wife, that they and not the daugh- ter were entitled to the legacy, and that the gift was not void for uncertainty. Ada/ms v. Jones, 21 Law J. Rep. (n.S.) Chanc. 352; 9 Hare, 485. A bequest of 500i to the Westminster Asylum for pregnant women, — Held, upon extrinsic evidence, and the context of the will, without any inquiry, a gift to " The General Lying-in Hospital." The Oe- neral Lying-in HospiUd v. Knight, 21 Law J. Rep. (h.s.) Chanc. 537. A testator bequeathed to each of the servants living with him at his decease, and who should then have lived in his service for three years, one year's wages : — Held, to be a bequest only to such servants as are usually hired at yearly wages, and not to extend to a gardener living on the grounds, and hired at weekly wages. Blachmell v. Pemnamt, 22 Law J. Rep. (n.s.) Chanc. 156; 9 Hare, 551. A testator, after giving legacies to various persons, some of whom were mentioned by name and others described as a class, bequeathed the residue of his property to his several legatees thereinbefore " spe- cially named," exclusive of the objects taking under the trusts for the distribution of blankets : — Held, that the testator, by excluding certain persons not mentioned by name from his residuary bequest, had sufficiently explained his intention ; and that under the words "specially named" those legatees who were not mentioned nomimati/m, but only described as a class, were entitled to share equally with the other legatees. In re Holmes's Trust, 22 Law J. Rep. (n.s.) Chanc. 393; 1 Drew. 321. A testator directed his executors to pay the sum of 500?. a piece "to each child that may be born to either of the children of either of ray brothers," to be paid to each at twenty-one: — Held, upon appeal, that this was not a bequest to a class, but to each individual who at the testator's death might answer that description. Storrs v. Benhow, 22 Law J. Rep. (n.S.) Chanc. 823; 3 De Gex, M. & G. 390. The plaintiff, a child of a nephew, was bom six months after the testator's death : — Held, that being in esse at the testator's death, he was within the de- scription, and entitled to a legacy of 500i. Ibid. A testator bequeathed a legacy to his cousin Ann, the daughter of his uncle Peter, and bequeathed a moiety of his residuary estate to another cousin by the description of Vincent, the son of his said uncle Peter. The testator's uncle Peter had two sons, named Frederick and Alexander, neither of whom was on terms of intimacy with the testator. Another of the testator's uncles, whose Christian names were Joseph Vincent, had an only son named George Vincent, who was generally known and called by the testator by the name of Vincent only, and was on intimate terms with the testator : — Held, on motion for a decree, the Court rejecting extrinsic evidence of the testator's intention, that George Vincent the son of Joseph Vincent was entitled to the residuary bequest in preference to Frederick, the son of the testator's imcle Peter. Bemasconi v. AtHnson, 23 Law J. Rep. (n.s.) Chanc. 184; 10 Hare, 345. A testator gave to Sarah S, the unmarried sister of T S and W S, an annuity of 201. a year for her life. He also gave to Mr. F, who married the sister, now deceased, of T S and W S, an annuity of SOI. for his life ; and in case Sarah S should depart this life be- fore F, he gave him an additional annuity of 201. for his life. There was no person of the name of Sarah S ; but T S and W S had two sisters only, Lucy, who had been married to J H, and Mary, who was never married, but who for many years had lived with F, by whom she had four children who were brought up by him. The testator had frequently called at the house where the legatees resided and made them gifts of money, and he did so after the death of Mary. The annuities were paid for some time after the decease of the testator, but payment was refused after the decease of Lucy H ; and, upon a bill filed, — Held, that F was entitled to the annuity of 30/. Ford v. Batley, 23 Law J. Rep. (n.s.) Chanc. 225; 17 Beav. 303. The will directed the executors to purchase the annuities in their names either from the Commis- sioners for Reduction of the National Debt, under the 10 Geo. 4. c. 24, or from any public company, &c.; but this was never done. Upon inquiry Lucy H 412 LEGACY i (B) Who take as Leoatees. was found to be the person intended by Sarah S, the unniarried sister of T S and W S ; and upon further directions, F was declared entitled to the additional annuity of 201., and he asked that the annuities might not be purchased, but that the money appli- cable to the purchase might be paid to him : — Held, that F was entitled to have a government annuity purchased, and that he had a right, in lieu thereof, to elect to have such a sum paid to him as would be applicable to purchase such annuities. Ibid. A legacy to the son and unmarried daughters of A equally : Held, on appeal overruling the decision of the Court below, that the gift was not a gift to a class, but referred to the state of circumstances at the date of the bequest, and that, therefore, daughters who married after that date, and one of whom was a widow at the time of division, were equally entitled with the son and the one daughter who never mar- ried. JTcdl 1. Robertson, 23 Law J. Rep. (h.s.) Chanc. 241; 4 De Gex, M. & G. 781: overruling 22 Law J. Rep. (s.s.) Chanc. 1054. A bequest to " The Carey Street Infirmary," — Held, upon extrinsic evidence, a gift to the Carey Street Dispensary. Emg's College Hospital v. Wheil- dm, 23 Law J. Rep. (n.s.) Chanc. 537; 18 Beav. 30. A testatrix devised all her property, subject to certain bequests, to her nephew, " Robert Mostyn, of Calcott Hall," whom she made her executor. Among these bequests were certain annuities, on the expira- ration of which the property was to fall " into the hands of my dear nephew ,Tohn Henry Mostyn, of Holywell, surgeon, but late of Calcott Hall; and should he not marry, to be divided equally between Samuel Mostyn, John Mostyn and Mary Davies, all of them late of Calcott Hall." The residue was to go to the executor. John Henry Mostyn, the only person who was properly named in the will, died un- married. There was no John Mostyn, but there was a Thomas Mostyn, bom between Samuel and Mary : — Held, affirming the judgment of the Court below, that this Thomas took no interest in the will. Mostyn v. Mostyn, 23 Law J. Rep. (n.s.) Chanc. 925; 5 H.L. Cas. 1S5: affirming 22 Law J. Rep. (n.s.) Chanc. 673; 3 De Gex, M. & G. 140; 17 Beav. S23. Lord Dormer, by his will, made such limitations of his estates as that they should in effect be enjoyed by the person who should for the time being hold the title of Lord Dormer. The testator, by a codicil, gave to B,his next heir after the death of A without issue male, an annuity of \&W. for life, but in case B should become possessed of the testator's title and estate, then the annuity was to be paid to his next male heir for life, and so on successively to all the sons of the testator's cousin, so that the next heir to the title and estate should always enjoy this annuity, A died without issue male, whereupon B became en- titled to the title and estate; and the annuity was from that time paid to C, the eldest son of the testa- tor's cousin (who was then the next heir presumptive to the title and estate of Lord Dormer). B then had a son born, who became heir apparent to the title and estate, and afterwards C died: — Held, that B's son could not take the annuity, as the gift was to the sons of the testator's cousin ; and that the second son of the cousin could not take, as he was not the next heir to the testator's title and estate, and conse- quently that the annuity ceased upon the death of C. Dormef v, Phillipps, 24 Law J. Bep, (k.s.) Chanc. 168; 3 Drew, 39: affirmed 4 De Gex, M. & G, 8S6. The testator also, by the same codicil, gave to C an annuity of 50/, "for life, to devolve to his next brother, and so on, in case of his becoming possessed of the annuity of 1501.:" — Held, that, upon the death of C, this annuity ceased, there being no longer any person entitled to the annuity of 160/. Ibid. A direction in a will that trustees should " divide" a reversionary fund equally between a testator's chil- dren living at the decease of the tenant for life, " or such others as would have been entitled to it at the death of their parents," — Held, not to include a grandchild whose father died after the testator, but before the tenant for life. Miller v. Chapman, 24 Law J. Rep. (U.S.) Chanc. 409. A bequest to T T of E, There was a J T of R, a nephew of the testatrix, and his brother, named T T, who was not of R :_Held, that T T might ad- duce extrinsic evidence to shew that he was in some sense rightly described as of R, and that J T might bring evidence to shew that there was a mistake in the name of the legatee, and a prior will being produced, made three years before, in which the testatrix gave a legacy to T T of R, surgeon, which was the profession of J T, was held to be conclusive evidence in his favour, as it was not shewn that the testatrix had discovered her mistake as to the name before she made her last will. In re Feltham's Trusts, 1 Kay & J. 528. A testator by his will gave to each person as a ser- vant in his domestic establishment at the time of his decease a year's wages, beyond what should be due to him or her for wages: — Held, that a head gar- dener who lived in one of the testator's cottages, and was not dieted by the testator, was not entitled to a year's wages under the will. Ogle v, Morgan, 1 De Gex, M. & G. 369. A testator bequeathed 100/. a piece to the four sons of A H by a former husband. She had four children by such former husband, but one of them was a daughter : — Held, that the daughter took a legacy of 100/. Zame v. Green, 4 De Gex & Sm. 239. A testator bequeathed a sum of stock in trust for a daughter for life, and in case there should be no child of the daughter living at her decease, or being such they should all die under twenty-one, then the testator bequeathed the stock unto all and every his children then living, and the child or children of such of his said children as should be then dead, in equal shares, but so that such his grandchildren should only have among them such share as their parents would respectively have been entitled to in case they had been then living: Held, that the children of a child of the testator known by him to be dead at the date of the will did not take any in- terest. In re Thompson's Trusts, 5 De Gex, M. & G. 280. A testator by his will gave to trustees 1,000/, stock on trust to pay the dividends to his nephew for life, and after his decease, in case his nephew's wife should survive him, to pay the same to her for life ; and afterwards on trust to pay the capital among his nephew's children. The nephew died unmarried, but left surviving a woman with whom he had co- habited for many years, who was supposed by the LEGACY; (B) Who take as Legatees. 413 testator to beliis wife, and was frequently referred to as such ; — Held, that the gift was void. In re Da- venport's Trust, 1 Sm. & G. 126. A testator, who died in 1819, bequeathed a legacy to accumulate in trust for the eldest daughter of A B, to be paid at twenty-one, and if none to the eldest daughter of C D, payable in like manner. A B never had a daughter, and died in 1861. C D had a daughter, G, born in 1821 and who died in 1827, and other daughters : — Held, that the repre- sentative of G was entitled to the legacy, and to the accumulations accrued down to 1827, together with simple interest thereon from that day to the day of payment in 1852. Bryan v. Collins, 16 Beav. 14.^ Erroneous description of a legatee rejected upon extrinsic evidence. In re BlacTeman, 16 Beav. 377. A, the grandchild of C, and B, the widow of a child of C, held under the circumstances entitled to a bequest made to A and B, widow, described as " children of C." Ibid. Bequest to " the treasurer of the fund for the superannuated preachers and widows of Wesleyan Ministers." There being no such fund, — Held, that " the Itinerant Methodist Preachers' Annuitant Society " might take. Bunting v. Marriott, 19 Beav. 163. Legacy to " my granddaughter E B." There were two of that name, one of them constantly visiting the testator and much noticed by him, the other not : • — Held, that the former was entitled to the legacy. Jefferies v. Michell, 20 Beav. 15. (c) Gift to a Class. (1) When and how ascertained. Where a sum of money is bequeathed to be divided among a class when the eldest attains twenty-one, whether the gift be vested or contingent, all the children who are born before the period of division are admitted to take shares. Mmm v. Thompson, Kay, 638. Where distinct sums of money are given to every individual of the class, but no time is limited for dis- tribution, the persons who answer the description at the death of the testator are alone entitled to take. Ibid. The construction is the same if the gift be of a certain sum to each of the children of A and B who should attain twenty-one, but in case any of them should die under that age, his share to go to his swrvvving brothers and sisters, although A had no children at the date of the will or at the death of the testator, but had children born after the testator's death. Ibid. " Surviving " in such a limitation cannot be read " other," so as to entitle a child to the share of a brother who died before he was born. Ibid. Devise and bequest to all the testator's children living at his decease (without naming them). A subsequent codicil confirmed the gift as mentioned in his will " to his surviving children " (naming them all). One died in the testator's lifetime leaving children who smvived the testator : — Held, that the survivorship had relation to the testator's death and not to the date of the will, and that the representa- tives of the deceased child took nothing under the 1 Vict. c. 26. s. 33. FuUford v. Fullford, 1 6 Beav. £65, Gift to A, a child of the testatrix, for life by weekly payments, remainder to " ray surviving children": Held, that this meant only children surviving the tenant for life. In re Pritcha/rd's Trusts, 3 Drew. 163. Testator gave real estate to his wife for life, and after her decease on trust to sell twelve months after her death, the proceeds to go " equally between all his children ; but if any of them should be then deceased leaving lawful issue surviving them, then the respective share or shares of such deceased child or children should be given to such issue, if more than one, in equal proportions." The widow died, living the testator; one of the children of the testator survived the widow and died, living the testator, leaving a husband and children : — Held, that her share went to the surviving children of the testator, and not to her issue, nor to her personal representa- tives under the Wills Act. Olmey v. Bates, 3 Drew. 319. The 33rd section of the Wills Act applies only to cases of strict lapse, not to the case of gifts to a class. Ibid. (2) Distribution per Capita or per Stirpes. Bequest of 3,000?. to trustees for L C for life, with remainder in default of appointment equally to and amongst her sisters or their children living at her decease : — Held, that the children of a sister who had died in the testator's lifetime before the date of the codicil took no interest. Congreve v. Palmer, 23 Law J. Rep. (n.s.) Chanc. 54. Held, also, that the children of the sisters sur- viving L C took per stirpes. Ibid. A testator gave real and personal estate to trustees during the lives of eight nephews and nieces, whom he named, and the survivors and survivor of them, upon trust to pay one-eighth of the rents to each during their respective natural lives; and directed that in case any should die without leaving issue, the share of him, her or them so dying should go among the survivors in the same manner as their original shares; and in case any of the eight legatees should die leaving issue, the share original and accruing of him, her or them so dying should be paid to and equally among such issue; and after the decease of the survivor of the eight legatees the testator devised such real and personal estate unto the issue then living of the eight legatees and their heirs, the share of the issue in the fee simple to be in the same pro- portion as the rents and profits he or they might then be in receipt of : — Held, that on the death of the survivor of the eight legatees the property be- came divisible and payable among and to the children living of the legatees who had died and left children, such children to take per stirpes, but the members of each stirps to take equally. Bradshaw v. Mellvng, 23 Law J. Rep. (n.s.) Chanc. 603; 19 Beav. 417. A testator, after the death of his wife, gave certain property to be equally divided between B J and A his wife, and A and S his wife, for their lives, after which to be equally divided between the children of B J and C A above named : Held, that the children of B J and C A were entitled ^cr capita. Airey v. Newman, 22 Law J. Rep. (n.s.) Chanc. 627; 16 Beav. 431. A testatrix bequeathed stock to T P and J S for their lives, and from and after their decease to the 414 LEGACY; (B) Who take as Leoatees. "surviving children" of the said T P and J S, share and share alike : — Held, that the children living at the death of the survivor of T P and J S were alone entitled, and that they took per capita and not per stirpes. Stevenson, v. Oullan, 18 Beav. 690. A testator directed his executors to pay and divide the residue " unto and amongst his own next-of-kin under the Statute of Distributions": — Held, that brothers and deceased brothers' children took pet" stirpes. Lewis v. Morris, 19 Beav. 34. The testator gave a residuary fund to his brothers and sisters for life, and from and after the decease of the survivor to pay the principal to their issue who should live to attain twenty-one, or the issue of such of them as should be then deceased, such class of issue, whether in the first or second degree, to take only as amongst themselves the shares which their parents would have been entitled to if living : — Held, that the children of the brothers and sisters took per stirpes^ and that the children of one of the testator's nephews who died in the testator's lifetime took with their uncles and aunts the share which their father would have taken if then living. Shcmd v. Kidd, 19 Beav. 310, The word " or " construed " and," Ibid. Bequest (in effect) to A for life, and in default of her appointment equally amongst " her sisters or their children living at her decease": — Held, first, that the children took by substitution, and therefore that the children of a sister, who was dead at the date of the will, could not take, and, secondly, that siKh of the children as were entitled took per stirpes. Congreve v. Palmer^ 16 Beav. 435. Distinction between a gift to several, with re- mainder to their children, and one to several with a substitutionary gift to their children in respect to their children taking per stirpes or per capita. Ibid. (3) Next-of-him. A testatrix bequeathed a fund to trustees in trust for A B for life, with remainder to her children at twenty-one; but in case she died without issue, then to pay or assign and transfer the fund to C D, if then living, but if then dead, then unto his next-of- kin in a legal course of distribution ex parte maternd. C D died in the lifetime of A B. A B died without issue. At the death of C D, A B was his sole next- of-kin ex p(vrte paternd, aiai also his sole next-of-kin ex parte maternd; at the death of A B, the then next-of-kin ex parte maternd of C D claimed the fund: — Held, affirming the decision of the Court below, that the next-of-kin were to be ascertained at the death of C D, and not at that of A B, and that A B, as next-of-kin ex pwrte Tnatemd, was not excluded because she also filled the character of next-of-kin ex parte palernd; and, therefore, her representatives were entitled to the fund. Qimdry V. Pinniffer, 21 Law J. Rep. (h.s.) Chanc. 405; 1 De Gex, M. & G. 602 : affirming 20 Law J. Rep. (U.S.) Chanc. 635; 14 Beav. 94. "Nexi^of-kin" means next-of-kin at the death of the party whose next-of-kin are spoken of. Ibid, A testator, by his will, gave personal estate upon trust for investment and accumulation for the period of twenty-one years, and at the end of that time to be paid to his " then nearest of kin in the male line in preference to the female line." At the end of the twenty-one years the fund was claimed by an only surviving sister of the testator, his then actual nearest of kin ; by a cousin of the testator, the son of the testator's paternal uncle, the then nearest relative of the testator tracing his relationship through males only; and, thirdly, by the sons of two deceased sisters of the testator, the then nearest male relatives of the testator : — Held, (affirming the decree of the Vice Chancellor, who had decided that the gift was made to the nearest of kin ex parte patemi, the tes- tator having died without children,) that the only surviving sister was entitled to the fund. Boys v. Bradley, 22 Law J. Rep. (n.s.) Chanc. 617; 4 De Gex, M. & G. 58 : affirming 10 Hare, 389. Bequest of a residue to A for life, with remainder to such persons as at the death of A would be the next-of-kin of the testator under the statutes made for the distribution of the effects of intestates: — Held, that the persons entitled under this description took as tenants in common. Horn v. Coleman, 22 Law J. Rep. (n.s.) Chanc. 779; 1 Sm. & G. 169. A testator gave his personal estate to trustees upon trust for his daughters, for their respective lives, in equal shares; and if any died without issue their shares were to be held in trust for the person or persons who would at their death respectively be entitled, as next-of-kin or otherwise, to their respec- tive personal estate under the statutes made for the distribution of intestates' effects, and in the same proportions and manner as they would be entitled by virtue of such statutes if they had then respec- tively died intestate. One of tie daughters died without leaving any child surviving: — Held, that her husband was not entitled to her share. Mihte V. Gilbert, 23 Law J. Rep. (n.s.) Chanc. 828; 2 De Gex, M. & G. 715; 5 Ibid. 510. Bequest to A for life; and afterwards in an event which happened, the testator directed advertise- ments to be made for his relations, to such only of whom as should claim within two months he left the property, to be divided according to the discretion of his executors. The executors died in A's life- time : — Held, that the next-of-kin of the testator according to the statute took equally, and that the class was to be ascertained at the death of A, and not at the death of the testator. Tiffin v. Longman, 15 Beav. 275. A testator bequeathed the residue to his wife for life with remainder to his children living at his death, and if there should be none (which happened) then he directed " that immediately after his wife's decease it should become the property of the person who should then become entitled to take out admi- nistration to his effects as his personal representa- tives" according to the Statute of Distributions, and in the proportions thereby pointed out in case he had died intestate and unmarried : — Held, that the next-of-kin at the death of the testator, and not those at the death of the tenant for life were entitled. Cahh V. Calle, 16 Beav. 507. Bequest to A for life, with remainder to B for life, and after their deaths to the testator's next-of-kin, but should no claimant appear within twelve months after their death, then to charities. A and B were sole next-of-kin at the testator's death : — Held, first, that the next-of-kin were to be ascertained at the testator's death; and, secondly, that A and B were not excluded from taking under the ultimate gift to the next-of-kin. Garhell v. Davison, 18 Beav. 566, LEGACY; (B) Who take as L'Sgatbes. 415 A bequeathed a leasehold for the benefit of B, and gave her a power to appoint it by will, and in default to A's " nearest of kindred precisely in the same manner directed by the statute made for the distribution of intestates' effects." On B's death without appointment, held that the next-of-kin of A at her own death, and not those at the death of B, were entitled. Mwrkham v. Ivatt, 20 Beav. 579. The term "nearest of kindred" with reference to the Statute of Distributions has the same meaning as next-of-kin. Ibid. A gift by will of real and personal estate to L for life, and then to L's husband for life, and then to her appointees by deed or will, and in default to her "next-of-kin according to the Statute of Distri- butions of personal estate, and in the hke shares and proportions as if she had died without having been married," with a direction to L to appoint trustees in whom the property was to be vested upon the above trusts. L died in the lifetime of the testatrix, leaving the testatrix, who was her mother, and one other person, who was the only child of her only sister, her next-of-kin according to the statute : — Held, first, that the gift to the next-of-kin had not lapsed; and, secondly, that the next-of-kin intended was not nearest of kin, but that the nephew took one moiety of the property. Nichols v. HavUcmd, \ Kay & J^ mi. A bequest to the next-of-kin of a person who is dead at the date of the will, held to be analogous to a gift to the testator's own next-of-kin as regards the period of ascertainment. Phil/ps v. Evams, 4 De Gex & Sm. 188. ' Therefore, where a testatrix bequeathed her per- sonal estate in trust for her sister for life, and after her death for the sister's daughter for her life, with limitations to the children of the daughter, and if there were none to another niece for life, with a limitation to her children, and in the event (which happened) of both nieces dying without leaving any child, the testatrix directed the residue to be paid and assigned to " the personal representative or next-of-kin" of her late father : — Held, that the case was in principle similar to Bird v. Imckie, and that the next-of-kin meant were those living at the testa- trix's death, although they all took separately under the wiU. Ibid. A testator gave his residuary estate to trustees upon trust to pay the dividends to J B, A L and J L for their lives and the life of the survivor of them, and on the decease of the survivor "in trust to divide the fund among the children of J L, and in default of such children for all and every my next-of-kin who shall be in equal degree, and those who legally represent them according to the statute." At the testator's death A L was his sole next-of-kin : .^Held, that she was entitled to the fund. In re die Trusts of Barber's WiU, 1 Sm. & G. 118. (4) Mepresentatms. A testator gave the residue of his property to his daughter for life, and after her death one-twelfth of such residue to be equally divided amongst all his cousins german then existing " or their representa- tives": — -Held, that the testator intended to use the word "representatives" in its ordinary legal sense, and that the executors or administrators of the cousins gennan, and not the next-of-kin, were en- titled to the twelfth part of the residue. In re Crmcford's Trust, 23 Law J. Eep. (n.s.) Chanc. 625; 2 Drew. 230. By a gift to "personal representatives" the execu- tors and administrators are primd facie meant. Athertony. Crowther, 19 Beav. 448. Under a bequest to "personal representatives" of children to lake per stirpes : — Held, first, that their executors and administrators were not entitled ; and, secondly, (principally upon the terms of the gift over to the testator's " next-of-kin," if there should be no "representatives"), that the descendants of the children were intended. Ibid. (5) Family. A testator directed his trustees to pay the interest of certain property to his wife so long as she should continue his widow, and at her decease the princi- pal sum to be equally divided share and share alike among his five sisters (naming them), and their re- pective families, if any: — Held, that on the death of the testator's widow the estate was to be divided into fifths, and as to each fifth, each sister and such children as she had living at the decease of the tes- tator would be entitled. In re ParJdnson's Trust, 20 Law J. Bep. (n.s.) Chanc. 224; 1 Sim. N.S. 242. The primary meaning of the word "family" is "children," and there must be some circumstance, either in the will or in the situation of the parties, to prevent that construction. In re Terry's WiU, 19 Beav. 580. Legacies were given to A and B, and in case they should pre-decease the testatrix " to their respective families." A having died before the testatrix : — Held, that her children alone took under the word " family." Ibid. A bequest to the family of G : — Held, not to be void for uncertainty ; but construed to be a gift to the children of G (an uncle of the testator known to and on terms of intimacy with him) as joint tenants, and not to include the parents or their grandchil- dren. Gregory v. Smith, S Hare, 708. (6) Offspring. A testatrix gave property to E. Thompson for life, and at her decease the interest to be divided between her children; " but if there should not be any child or offspring left," then the sum of 20/. to the plain- tiff, and the remainder to other persons. E. Thomp- son died without children, but left grandchildren : Held, that there being grandchildren, the plaintiff was not entitled, since the term " offspring" meant other offspring beyond children. Thompson v. Beas- ley, 24 Law J. Eep. (n.s.) Chanc. 327; 3 Drew. 7. (7) Issue. Bequest of personalty to A for life, and after his death to the issue of the body of A, with a gift over if A should die without issue : Held, that at the death of A all his issue, and not merely children, were entitled. Hall v. Nalder, 22 Law J. Rep. (n.s.) Chanc. 242. . The word "issue" includes all remote descendants of the person whose issue is referred to, and the bur- den of proof lies upon him who contends the con- trary. But when the word "parent" is used in reference to his " issue," the word is confined to his " children." Ross v. Soss, 20 Beav. 645. 416 LEGACY; (B) Who take as Legatees. The word " issue " in reference to the word " pa- rent" in a substitutional gift, — Held, from the con- text of the will not limited to " children." Ibid. Bequest to C R for life, with remainder to the children of C R who should be living at her decease equally, and the issue then living of such of her children as might have died in her lifetime, the issue to take the share which their parent would have been entitled to had he survived C R, and if but one then to take "a child's share." There was a gift over on the death of C R, " without leaving a child or issue," generally. One of C R's children pre- deceased her, leaving no children but only a grand- child, who survived C R : — Held, that he took a child's share with C R's children. Ibid. (8) Children. A testatrix bequeathed a share of her residuary estate to trustees for H L for life, with remainder after his decease unto his " present born children, their executors, administrators and assigns, equally to be divided between them, share and share alike." The testatrix, by a codicil to her will made after the decease of one of the children, gave the same resi- duary estate upon the same trusts so bequeathed by her will: Held, that the bequest was made to a class ; that there was no intestacy, and that the plaintiffs as surviving children were entitled to the share to which the deceased child, if living, would have been entitled. Leigh v. Leigh, 23 Law J. Rep. (k.s.) Chanc. 287; 17 Beav. 605. Bequest to a class equally, with a substituted gift, as to the shares of any who predeceased the testator, to his " children or remoter issue" per stirpes of their " parents' " or " grandparents' " shares : — Held, that .the grandchildren could not claim a. share, by substitution, in competition with children; but that the children alone were entitled to the exclusion of grandchildren. Amsonv. Harris, 19 Beav. 210. A testator bequeathed life interests in four dis- tinct funds to four nieces, respectively, and directed that upon the decease of any or either of them, the principal of the fund, the interest of which was to be received by her or them, should be held in trust for "the benefit of all and every the lawful children of her or them so dying, and of the survivors or survi- vor of any other nieces hereinbefore named in equal shares." One of the nieces having died leaving two children : — Held, that her fund was divisible among those children, and among the children of the three other nieces, it being proper to give some force to the word "of," and that word being referrable to the word " children," as the last antecedent. Pea- cock v. Stockford, 3 De Gex, M. & G. 73. (9) Illegitimate Children. A testator by his will gave a share of his residuary estate to his son for his life, and directed that, after his death, the interest should be for the maintenance of his wife and the education of his children. At his wife's death, the principal to be divided among his children. For some years previously to the date of the codicil, the son had been living with a woman to whom he was not married, and had by her four children. The testator was cognizant of these cir- cumstances, and recognized the children as the children of the son and his own grandchildren, and frequently had them staying with him : — Held, that the illegitimate children of the son were not included in- the bequest made in favour of the children. Warner v. Warner, 20 Law J. Rep. (n.s.) Chanc. 273. A testator gave the residue of his estate to B, the interest to be paid to her until her first-born son should attain the age of twenty-one years ; one-half of the said principal sum then to be paid to her afore- said son, the other half to be paid to his mother. Should his mother die before the said son, the whole to be paid to him. Should the aforesaid son die before his mother, his share to go to her. B had one illegitimate son at the date of the will, who was maintained by the testator : — Held, that this son was not entitled under the above bequest. Durrant V. Friend, 21 Law J. Rep. (n.s.) Chanc. 353 ; 5 De Gex & S. 3J3. A testator recited in his will that he had nine children, whom he named and described, and he bequeathed the income of his estate to his wife for life; and, after her death, the capital to be divided among his children by his wife then living, and the issue of them who should be then dead. Various other trusts were declared by the will, and among them that the trustees should pay the interest during the life of such of his " said children" as should be a daughter in a particular manner. One of the daugh- ters was illegitimate : — Held, (Lord Cranworth lay- ing great stress on the latter clause, but the Lord Chief Justice considering the will sufficient without it,) that the intention of the testator was on the will manifest that the illegitimate daughter should take a share with the legitimate children. Owen v. Bryamt, 21 Law J. Rep. (n.s.) Chanc. 860; 2 De Gex, M. & G. 697. There is no inflexible general rule that illegitimate children cannot participate in a gift to chUdren. Ibid. A gave a legacy to " the children of Mary, the wife of W B." W B and Mary B, although not married, had cohabited together for many years, and it was believed by the members of both their fami- lies that they were married, and they were generally reputed to be so. During this time they had several children. A was the aunt of Mary B and was on intimate terms with her and her family, and they frequently visited each other. At the date of the will Mary B was past the age of child-bearing: — Held, that the children of Mary B were not entitled to the legacy. In re Overhill's Trusts, 22 Law J. Rep. (k.s.) Chanc. 485; 1 Sm. & G. 362. Gift to a woman, designated by the testator as his wife, for herself and the children's benefit, held, by reference to a previous codicil, to include the child of another woman, though that woman repudiated the guardian appomted by the testator for her child. Hart V. Tribe, 22 Law J. Rep. (n.s.) Chanc. 890; 16 Beav. 510, nom. Ha/rtUy v. Tnhber. A testator gave a legacy to a woman whom he had deceived by pretended ceremonies of marriage, to be used for her own and the children's benefit, and he appointed her then: guardian : Held, with reference to a former codicil, to comprise her child and the child of another woman, both of whom were specifi- cally named in the former codicil. Ibid. A testator gave a legacy to all the children of his late nephew, J L. At the date of the will J L was LEGACY; (C) What Propehty "passes. 417 dead. J L left one legitimate and two illegitimate children: — Held, that the two illegitimate children were entitled to share in the legacy. Leigh v. Byron, 23 Law J. Rep. (s.s.) Chauc. 1064; 1 Sm. & G. 436. A natural daughter being included by description in a prior class of daughters, was held entitled to take with legitimate daughters under a subsequent general gift to "my daughters." Worts v. Cvibitt, 19 Beav. 421. (C) What Propbett passes. (a) In general. A testator bequeathed to his wife the interest of t^ie capital sum of 1,000?. for her sole use and bene- fit, independent of any husband she might marry, and her receipt alone to be a sufficient discharge to his executors. He also gave his china, plate, &c. to his wife absolutely, and the residue equally between his two brothers : — Held, that the gift of the interest of 1 ,000?. was tantamount to an absolute bequest of the capital. Humphrey v. Humphrey, 20 Law J. Rep. (N.a.) Chanc. 425; 1 Sim. N.S. 536. A specific enumeration of articles after a bequest to J E K of "all and everything I die possessed of," followed by a declaration that " I leave everything I die possessed of to J E K for her entire and sole use and benefit," held to be a general residuary bequest. In re Kendall, 21 Law J. Rep. (N.a.) Chanc. 278; 14 Beav. 608. A testator bequeathed certain chattels to A, and •afterwards insured them from loss by sea. The testator embarked with these goods in a ship, which was totally wrecked, and he and the chattels perished together: — Held, that A had no interest in the money recovered by the executors from the insur- ance office. Dwrrant v. Friend, 21 Law J. Rep. (w.s.) Chanc. 353; 5 De Gex & Sm. 343. A testatrix directed her trustees to pay the divi- dends arising from her personal estate invested at her decease in or upon any stocks, funds or securi- ties whatsoever, yielding interest, to certain persona mentioned in her wilL The testatrix, at her death, left a balance in the hands of her banker, who was in the habit of allowing his customers interest upon the amount standing to their credit on a particular day in the year : — Held, that this balance did not come within the terms used by the testatrix, but was undisposed of by the will. Archibald v. Hwrtley, 21 Law J. Rep. (u.g.) Chanc. 399. A testator, by his will, gave the residue of his per- sonal estate to A, B and C, to be equally divided between them. By a codicil, he gave A the arrears of rent due to him for his real estate, and the amount of any salary due to him, and also bequeathed to A all his clothes and any other property, goods and articles belonging to him at the time of his death. By another codicil, he revoked the bequest made to B by his will : — Held, that the gift to A, by the first codicil, was a general one, and that the words " pro- perty, goods and articles" were not to be confined to articles ejvsdem generis with clothes ; and that, consequently, A was entitled to two-thirds and C to one-third of the residue. Everall v. Browne, 22 Law J. Rep. (n.s.) Chanc. 376; 1 Sm. & G. 368. By the rules of an unincorporated assurance company each shareholder was required to effect an insurance of a stated amount, and it was provided Digest, 1850—1855. that one-third of every bonus on the policy should be added to the capital of the company. A share- holder, by his will, bequeathed all and every his shares and interest in this company, and all the advantages to be derived therefrom, and he be- queathed shares in other companies, in reference to which he also used the expression " shares and interest": — Held, that the policy effected by the testator, and the bonus which had been declared thereon, did not pass to the legatee. Harrington v. Moffat, 22 Law J. Rep. (ir.s.) Chanc. 775; 4 De Gex, M. & 6. 1. A debt being secured by an English bond, and also collaterally by a Scotch bond, which is a herit- able security, was held to pass by the will of a testator domiciled in England, who died intestate as to Scotch estates. Oust v. Goring, 24 Law J. Rep. (N.a.) Chanc. 308; 18 Beav. 383. Bequest of "all the funded property in my name" : — Held, to pass Irish bank stock and Irish 3J?. per cents, belonging to the testator and standing in his name jointly with three others. Mamgin v. Mangim, 16 Beav. 300. A testatrix having two leaseholds at X and Y bequeathed those at X to one for life, and directed that after her decease they should " form the residue of her leasehold estates thereinafter bequeathed." She then bequeathed all the residue of her lease- holds " whatsoever and wheresoever" not therein- before otherwise disposed of : — Held, that the lease- holds at Y also passed under the residuary gift. Matrkham v. Ivatt, 20 Beav. 579. A testator bequeathed to his daughter his twenty shares in the S. Office, or in any other office in which the same had beeu or should be transferred, and all his right therein or in the monies arising or that might arise from the sale thereof: negotiations of which the testator was aware were then pending for the transfer of the business of the S. Office to the A. Office, which were afterwards concluded, and in lieu of the S. shares the testator received a number of A. shares and a sum of 1,200?. : — Held, that the A. shares passed under the bequest, but the money did not. Phillips v. Turner, 17 Beav. 194. Accruing share held to go over with the original share by force of the words "part, share and interest." Douglas v. And/rews, 14 Beav. 347. A testator gave his estate to' one for life, with remainder to her children equally, with a gift over (in case of the death of any child in the life of the tenant for life) of the "part and parts, share and shares and interest" of such ehiM to his issue : Held, that the gift over comprised the accrued as well as the original share. Ibid. The general rule is, that where a fund is given to a class of persons, with a direction that on the death of any of them their "shares" are to go over, the original and not the accruing shares will go over. But a testator may express a contrary intention, thus — where he shews an intention to keep the fund "aggregate" and unsevered, the rule does not apply. Ibid. Bequest of all the testator's Great Western Rail- way shares, and all other the railway shares of which he might be possessed at the time of his decease ; — Held, to pass Great Western Railway shares which he had at the date of his will, and which were after- wards, by a resolution of the company, made under 3H 418 LEGACY; (C) What Pkopertt passes. the authority of an act of parliament, converted into consolidated stock; but, held, not to pass consoli- dated stock in the same company purchased by the testator after the date of his will. OaJces v. OaJces, 9 Hare, 666. A testator was the keeper of a tavern fiilly fur- nished as such, but which he occasionally but very rarely slept in ; he had also household furniture at his private dwelling-house, remote from the tavern, in which he resided and usually slept : — Held, that though the furniture at the tavern might have formed part of the testator's stock in trade, yet the furniture there, as well as that in the dwelling-house, passed under the gift as " household furniture." Manning V. Purcell, 2 Sm. & G. 284. (6) Monies. A testator, by his will, appointed A and B to be his executors, to take and receive all monies that might be in his possession or due to him at the time of his death, to be by them placed in the fiinds or otherwise laid out on security, the interest thereof to be paid to his wife for her life, and directed them, after her death, to divide the monies held in trust by them between his two nieces. The testator had at his death only a small balance at his bankers, and the sum of 1,2001. consols : — Held, that the consols were disposed of by the will under the term of monies. Waite v. Combes, 21 Law J. Rep. (n.s.) Chanc. 814; 5 De Gex & Sm. 676. In May 1 847, A paid B a sum of money, with a direction that he should invest it, according to his discretion, for the benefit of A. In October 1847 B died without having made any investment. A made his will, dated April 1848, and thereby gave to C all his ready money and securities for money, money in the funds, and money in the bank or banks (if any) which might be due and owing to him at the time of his death. A died in July 1848 : — Held, that the debt due from B's estate to A passed to C under the above bequest. CooJce v. Wagster, 23 Law J. Bep. (n.s.) Chanc. 496; 2 Sm. & G. 296. A testatrix gave to A B " the whole of my money" for his life, at his death to be divided between C D and E F, and after giving her clothes, watch and trinkets to C D and E F, declared that the longest survivor of C D and E F was " to become possessor of the whole money." At her death, the testatrix was entitled to sums of stock, and to some small sums of money : — Held, that the sums of stock did not pass to C D and E F under the above bequest. Lowe V. Thomas, 23 Law J. Rep. (h.s.) Chanc. 616; 5 De Gex, M. & G. 315; 23 Law J. Rep. (n.s.) Chanc. 453; Kay, 369. A testator by his will bequeathed to his wife all his monies, household furniture, plate, books, linen, wearing apparel, &c. and his residue to his wife for life, and after her death to his children. The testator had, as a house of business, a tavern and betting office and a private residence, both containing furni- ture, and he lived at the latter, but sometimes slept at the former. At the time of his death, he had at a bank 2,0002. on a common banking account, and 5,0002. on a deposit account, for which latter interest was allowed; he had placed 6,0002. with certain stakeholders to abide the event of a bet, and after his death it was repaid to his administratrix ; and he held monies for wagers, some of which were decided in his lifetime, but others not; all of which the ad- ministratrix paid : Held, affirming a decision of one of the Vice Chancellors, that the 2,0002. and the 5,0002. deposit account passed to the widow under the word " monies." Mcmning v. Pwcell, 24 Law J. Rep. (n.s. ) Chanc. 622 ; 23 Law J. Rep. (n.s.) Chanc. 423; 2 Sm. & G. 284. Held, also, but reversing the same decision, that the 6,0002. did not so pass. Ibid. Held, further, that only so much of the furniture at the tavern as was kept by the testator for his do- mestic or personal use passed under the gift of "house- hold furniture." Ibid. Held, also, that the payments made by the ad- ministratrix in respect of wagers decided in the testator's lifetime were unauthorized, and could not be allowed against the estate; but that those made in respect of wagers not so decided were good pay- ments, those undecided wagers being illegal contracts which either party might determine, and which she, by payment, must be taken to have determined. Ibid. (c) Dividends. A testator bequeathed shares in companies in which he was an original shareholder to his son, when he completed his majority : — Held, that the legatee, on at^ining twenty-one, was entitled to the dividends from the testator's death, and to have the shares fully paid up out of the residuary estate. Wright v. Wa/rren, 4 De Gex & Sm. 367. (D) What Interest vests. (a) Absolute. [Ecclea v. Birkelt, 6 Law J. Dig. 389; 4 De Gex & Sm. 105.] A testator, by his mil, dated in 1837, left his en- tire fortune to be equally divided between his two daughters A and B, who were his only children, with a declaration that the share of his daughter A should devolve, im case of her dying without children, to B and her children. At the date of the will A was married, but had no children; and B was married and had two children. A died without ever having had a child : — Held, that A took an absolute inter- est in the personal estate bequeathed by the testa- tor. JBacon, v. Cosby, 20 Law J. Rep. (n.s.) Chanc. 213; 4 De Gex & Sm. 261. A testatrix directed her executors to pay to or permit and suffer M S, or her assigns, to take, re- ceive, &;c. the interest of her residuary estate; she afterwards said, "and from and after the death of M S" she gave to several persons by name 1,0002. : — Held, that the bequest to M S was not confined to a life interest, but that the gift being of the interest, without limit as to its continuance, the principal passed. Jenings v. Saily, 22 Law J. Rep. (n.s.) Chanc. 977; 17 Beav. 118. A gift for the " present expenses of a wife and the children" : — Held, that she was absolutely entitled, though one of the children was an adopted child, and was taken away from her. Hart v. Tribe, 23 Law J. Rep. (n.s.) Chanc. 462; 18 Beav. 215. Bequest to a woman of the dividends of a sum of stock for her separate use, with a direction that at her death she might leave it to her children, or whom she might choose :_Held, an absolute gift, and that LEGACY; (D) What Imtebbst vests. 419 !ih6 was entitled to payment. Southows* v. Bate, 16 Beav. 132. A legacy was after certain limitations " to revert to the possessor of the estate": — Held, that the tenant for life of the estate took it absolutely. Man- gin V. Mangin, 16 Beav. 300. A testator gave the residue of his estate to trustees upon trust, to permit his wife to receive the rents, issues and profits, and carry on his trade for her own benefit, and to enable her to bring up, maintain and educate his children dwra/nte vidrntate: — Held, that the wife was absolutely entitled to the business. Jama v. Greatwood, 16 Beav. 527. A testator gave his personal estate to A for life, and after the decease of A he directed his executors to divide it among the six children of his late sister A J (naming them) " who should be living at the time of his decease, and the issue of such of them as should be living at his decease, and the issue of such of them as should then be dead leaving issue then living, the issue to take only such part or share as their parents, if then living, would have taken." If any of the children should die without leaving issue, his or her share was to go over to the others; and if any of the children should die leaving issue, they were to take as therein mentioned. All the six chil' dren of A J survived the testator and the tenant for life, and some of them had issue : — Held, that the six children were entitled to the fund absolutely, and that in the events which had happened their issue took nothing. Johnson v. Cope, 17 Beav. 661. A testator bequeathed as tbllows : I will to S B " if living the interest of my property in the Three- and-a-Half per Cents., and if not living at my de- cease, I will the interest of that property to E S for life, and afterwards to be divided amongst her children" : Held, that S B took an absolute interest, and that the gift over only took effect in the event of S B predeceasing the testatrix. Boosey v. Qa/rdmer, 18 Beav. 471. A testator bequeathed his residuary personal estate (after a life interest) to his grandson to and for his own use, but if he should die under twenty-one without leaving lawful issue, or if he should attain twenty-one and die without leaving issue, and with- out having disposed of the same by his will or other- wise, then over: Held, upon the construction of the whole will, that in the event (which happened) of the grandson attaining twenty-one, he took an absolute " interest. In re Talden, 1 De Gex, M. & G. 53. A testator bequeathed the interest of certain per- sonal property to his wife for life; " at her death one-half of the said property I give to my son G M, the remaining half to be equally divided between my two daughters, and at their deaths such shares to be equally divided among their children respectively " : Held, that the son took an absolute interest in the moiety. Scrivener v. Smith, 2 De Gex, M. & G. 399. A testator bequeathed the interest of his property in the funds to his wife for life or widowhood, and the capital at her death in equal shares unto and among the children of his brothers, J and E, and of his late brother, S, as should be living at the death or second marriage of his wife. By a codicil he declared it to be his wish that H M M (a niece) might have her share equally with his brothers', E and S's, children :— Held, that H M iff topk her share absolutely and not contingently upon her sur- viving the tenant for life. Biggs v. CHbis, 5 De Gex & Sm. 744. (6) For Life. If there is a valid gift over on alienation by one entitled to a life interest in personalty, it will take effect on insolvency, and the interest of the insolvent will not pass to his assignee. Rochford v. Hack- man, 21 Law J. Bep. (n.s.) Chanc. 511; 9 Hare, 475. A testator, by his will, directed his debts, &c. to be paid, and then gave, devised and bequeathed all and every his estate and effects whatsoever and wheresoever to his wife, for her sole and separate use and benefit; and further gave, willed and directed that, at her death, whatever remained of his said estate and effects should go to the persons therein named : — Held, that the widow was entitled to an estate for life only in the residuary personal estate of the testator after payment of his debts and funeral and testamentary expenses. Constable v. Bull, 22 Law J. Rep. (n.s.) Chanc. 182. A testator directed his property to be invested in the funds, 1,000Z. in each child's name, and 1,0002. in his wife's ; the interest to be received by them for life, and afterwards to their descendants; except his wife's, which was, at her death, to be divided amongst them. By a codicil, he alluded to the funds being increased, and directed the same division and appro- priation to be made, except that, as any share should fall in, it was to be added to the others, in case the original holder should have no children : — Held, that upon the will and codicil taken together, the children were only entitled to the interest of their respective shares for life, and that the share of- any child dying without children would go over. Bio'd v. Webster, 22 Law J. Rep. (N.s.) Chanc. 483; 1 Drew. 338. A gift to a wife " to be used for her own and the children's benefit as she shall think best," and recom- mending her not to diminish the principal : — Held, that the fund must be invested, and that she was en- titled to the income for her life, and that the children had an interest in the capital, and that the wife had a discretion to exercise in disposing of it; and liberty was given to apply. Ha/rt v. Tribe, 23 Law J. Rep. (H.s.) Chanc. 462; 18 Beav. 215. A testator by his wiU gave a legacy to his daughter for life for her separate use, with remainder to her children. By a codicil headed as " instructions to his solicitor " to add to his will, he gave another legacy " to his daughter and children for their sole use and benefit, &c. &c.," and one-third of the resi- due " to his daughter and children for their sole use and benefit " : — Held, that the daughter took a life interest in the gifts by the codicil. Cator v. Oator, 14 Beav. 463. Bequest of testator's residuary personalty equally between his four children (nominatim), to be equally divided between them, share and share alike; and in case of the death of either of them leaving issue, the issue of such child to take the parent's share; but in the event of their dying without leaving issue, then the share or shares of the one so dying to form part of the residue: Held, that the testator's children took for their respective lives only. Cooper V. Cooper, 1 Kay & J. 668. 420 LEGACY; (D) What Interest vests. (c) Jomt-Tenancy. By a gift to a person and his or her children, when children are in existence at the date of the will, the parent and children take together, either as joint tenants or tenants in common, according to the par- ticular words of the hmitation. But if there are superadded words which shew an intention to settle the property, then the parent takes a life estate only, notwithstanding the existence of children. Mason V. Ckvrhe, 22 Law J. Rep. (ii.s.) Chanc. 956; 17 Beav. 126. A bequest of residuary personal estate to A for life, and should she have a child or children, then to it or them for ever. After the death of the testatrix A married and had issue: — Held, that pursuing the intent of the gift, and by analogy to estates created by way of use or devise, as distinguished from estates raised by conveyance at common law, the children of A, notwithstanding their interests vested neces- sarily at different times as they came into esse, took as ioint tenants. Kenworihy v. Ward, 11 Hare, 196. Testator, after desiring his trustees to divide a .principal sum unto and equally between his nephew and four nieces, share and share alike, directed, in case any of them should die leaving issue of his, her or their body or bodies before their shares of the trust fund should become payable under his will, that the share or proportion of each of them his said nephew and nieces so dying of and in the said trust fund should be paid to his or her children respec- tively, the children to stand in the place or stead of their respective deceased parents, and to be entitled to receive their respective parents' shares of his trust funds accordingly : — Held, a gift to such children as joint tenants, the effect of the word " respectively " being to allot the several families of children each to its respective parent. In re Hodgson's Trust, 1 Kay & J. 178. Heath v. Heaih (2 Atk. 122, 12.3) remarked on. Ibid. (d) Trmt or Beneficial. A testator, by his will, gave all his real and per- sonal estate to his wife to enjoy the same " in the fullest manner, subject to the following provisions." The testator then gave certain legacies. He then desired that ail his property should continue at in- terest, in the same situation as at the time of his death, for the benefit of his wife, and that his wife should make a will and divide the property between his and her relations, in such manner as she should think they deserved. He then declared that, if his wife should be rendered unable to make a will in the manner before suggested, this property should be sold and that the. money should be divided in the manner therein mentioned. The testator then de- clared that the last clause was " not to do away with or prevent his wife from exercising the entire right over his property, should she be enabled to carry it into effect in the way he had left it to her, or in any other most agreeable to herself." The widow of the testator by h«r will gave some legacies to her rela- tions, but did not dispose of the residue of her estate: — Held, that the testator's property had, under hia will, vested absolutely in the widow, and went to her nextrof-kin. Hmkissmi v. BiUrje, 20 Law J. Rep. (k.s.) Chanc. 209; 4 De Gex & Sm. 245. A testator, by his will, gave all his personal pro- perty to his wife absolutely; but a codicil in the form of a letter, addressed to his wife, contained these words, " I hope my will is so worded that everything that is not in strict settlement you will find at your command. It ia my wish that you should enjoy everything in my power to give, using your judgment as to where to dispose of it amongst your children, when you can no longer enjoy it yourself. But I should be unhappy if I thought it possible that any one not of your family should be the better for what I feel confident you will so well direct the disposal of" : — Held, that the testator's widow took the property absolutely. Williams v. WilKams,. 20 Law J. Rep. (H.S.) Chanc. 280; 1 Sim. N.S. 358. A testator, by his will, bequeathed a policy of assurance on his own life to A and B upon the uses of a letter signed by them and himself. At the date of the will there was no such letter. Subsequently the testator addressed a note to his executors and signed a memorandum, by which he stated his wishes as to the disposition of the monies to be re- ceived in respect of the policy. The testator kept the policy in his possession until his death : — Held, that no trust was created by the memorandum, and that the policy formed a part of the residue. Johnson V. Ball, 21 Law J. Rep. (u.s.) Chanc. 210; 5 De Gex & S. 85. A testatrix by her will gave to S P, whom she appointed her sole executrix, 3,000t, and a like sum of 3,000/. in addition for the trouble she would have in acting as executrix ; and she gave all the residue of her personal estate to S P, her executors, admi- nistrators and assigns, " well knowing that she will make a good use and dispose of it in a manner in accordance with my views and wishes." Among the papers of the testatrix were found some memoranr dums in writing made since the statute 1 Will. 4. u. 40, and unattested, specifying certain charitable and other bequests which the testatrix desired to be made, one of which was addressed to S P. S P by her answer denied all knowledge of the " views and wishes" of the testatrix previously to her death : — Held, affirming the decision of the Court below, that upon the words of the will S P did not take the residue beneficially, but that she was a trustee for the next-of-kin. Briijgs v. Penny, 21 Law J. Rep. (h.S.) Chanc. 265 ; 3 M. & G. 546. Qtuere — whether the unattested papers were- admissible in evidence for the purpose of explaining the intentions of the testatrix. Ibid. A testator bequeathed all his property to his widow, her heirs, executors, administrators and assigns, for her sole benefit, in full confidence that she would appropriate and apply the same for the benefit of his children : — Held, that this amounted, to a gift of an estate for life in the property to the widow, with a power of appointment in favour of the children, with a gift in default of appointment to the children as joint tenants. Wace v. MaMard,. 21 Law J. Rep. (h.s.) Chanc. 355. A testator, by his will, bequeathed all his pro- perty of whatsoever description to his wife, her executors, administrators and assigns, to and for her and their own use and benefit, upon the fullett LEGACY; (D) What Interest vests. 421 trust and confidence reposed in her, that she would dispose of the same to and for the joint benefit of herself and his children : — Held, that the widow of the testator was entitled to have the entire resi- duary property transferred and paid to her for her own use and benefit. Webb v. Woolls, 21 Law J. Kep. (N.s.) Chanc. 625; 2 Sim. N.S. 267. W L, by his will, directed his executors to pay the residue of his property to M F, but in case of her death then to pay the same to the executors or executrixes which M F might appoint. M F died before W L, and by her will gave the residue of her property to I W, and appointed M L her executrix. Upon a bill filed by M L against I W,_Held, that M L did not take the residue of W L's estate bene- ficially, but that she took it as part of the personal estate of M F, and that she was to hold it upon the trusts and for the purposes of M F's. will. I/ong v. WatMnson and Long v. Lo/ng, 21 Law J. Eep. (n.s.) Chanc. 844; 17 Beav. 471. The expression of a testator's particular recom- mendation, desire and direction that his widow would at her decease will or divide amongst his children what she might have saved out of the yearly income bequeathed to her by the testator, is merely a precatory gift of an uncertain subject, and does not raise any trust in favour of the objects of the testa- tor's wish. Cowman v. Harrison, 22 Law J. Hep. (M.S.) Chanc. 99S; 10 Hare, 234. A testator gave his shares in certain freehold and leasehold property to his wife for her sole use and benefit, adding, " And I beg and request that at her death she will give and bequeath the same, in such shares as she shall think proper, unto such members of her own family as she shall think most deserving of the same." The testator also gave to his wife his personal property, for her sole and separate use and benefit, requesting that she would give what should be remaining, unto such members of her own and his family as she should think most deserving and entitled to the same. By a codicil, he gave his residuary estate to his wife : — Held, that there was an absolute gift of all the testator's property to his wife, without being subject to any trust. Green v. Marsden, 22 Law J. Rep. (n.s.) Chanc. 1092: 1 Drew. 646. A testator gave all his real and personal property to his widow, her heirs, &c. absolutely and for ever in the full assurance and confident hope that she would bring up, educate and provide for his children as it would have been his intention if living : — Held, that though the words " full assurance and confident - hope" would create a precatory trust, yet the trusts were too obscure to carry into effect, and that the widow took absolutely. Maenah v. WMtbread, 1 7 Beav. 299. Testatrix gave her residuary estate to A, his heirs, executors, administrators and assigns for ever for his own use and benefit, as she had full confidence in him that if he should die without lawful issue he would, after providing for his widow during her life, leave the bulk of her said residuary estate to B, C, D and E equally : — Held, that this language did not describe the subject of gift with sufficient cer- tainty to create a precatory trust. Palmer i. Sim- vumds, 2 Drew. 221. (e) Separate Use. A testator, by his will, gave to A, a married woman, an annuity for her life for her separate use, and, by, a codicil, gave to A, in addition to the legacy mentioned in his will, the sura of SOOl. No legacy had been given to A by the will : — Held, that A was entitled to the 300^ for her separate use. Warwielh v. Hawkins, 21 Law J. Rep. (n.s.) Chanc. 796; 5 De Gex & S. 481. In 1837 A was convicted of felony, and trans- ported for life. A testator, who died in 1852, bequeathed a share of the residue of his estate to B, the wife of A, and, in a suit for the administration of the estate of the testator, a sum was carried over to the account of B ; — Held, that B was absolutely entitled to this sum. Atlee v. Hoolc, 23 Law J. Rep. (n.s.) Chanc. 776. (E) On what Pkoperiy chargeable. A testator directed his debts to be paid, and then gave all his real and personal estate to trustees upon trust to pay certain legacies, and then declared cer- tain trusts of all the rest, residue and remainder of his freehold, copyhold and leasehold estates, and all other his estate aiul effects : — Held, that the personal estate was the primary fund for the payment of the debts and legacies; and that the real estate was only charged with them as a subsidiarv fund. Blemn v. Bell, 21 Law J. Eep. (n.s.) Chanc. 811 ; 5 De Gex & Sm. 652. A testatrix by will gave real and personal estate to trustees to pay debts and legacies; by a codicil she devised the said estate to her sister for life, and directed it, at her death, to be sold for payment of legacies ; she then gave various legacies, amounting to 50,000?^ — Held, upon the personal estate proving insufficient to pay the legacies, that the said estate was not made the primary fund for payment of legacies, and that, subject to the life estate of the sister, the said estate was an auxiliary fund. Whieh don V. Spode, 21 Law J. Rep. (n.s.) Chanc. 913; 15 Beav. 537. A testator, after making certain pecuniary and specific bequests, gave to A B 160/., to be paid to her on her marriage, and after disposing of an inter- est in part of his real estate, gave all the residue of his estate and effects, real and personal, to C D, whom he appointed his executor. C D paid the debts and several of the legacies, but did not pay A B her legacy on her marriage. A B and her husband filed a bill against C D, and upon taking the bill pro confesso, it was held, that the legacy was charged upon the residuary real estate. Franeis v. Clemow, 23 Law J. Rep. (n.s.) Chanc. 288 ; Kay, 435. A testator by his will devised and bequeathed all his real and personal estate to trustees upon trust ta convert his personal estate into money, and thereout to pay his debts and a legacy of 101. to A, and to be possessed of the residue of his money and his real estate, upon trust out of the rents of his real estate to pay such debts as his personal estate might be insufficient to satisfy, and, subject thereto, to stand possessed of all the residue of his estate for his grand, children. The testator made a codicil to his will, and thereby directed that «fte trustees or trustee acting wider his mil should pay a further legacy of 40/. to A and an annuity of IQOl. to B : — Held, that the legacy and annuity given by the codicil were charged on the testator's real estate. GaUemore v. 422 LEGACY; (F) Vested or Cobtimqent. GUI, 23 Law J. Rep. (».s.) Chanc. 604; 2 Sm. & G. 158. A testator gave all his real and personal estate to trustees upon certain trusts, but charged with an annuity of 5001. :_Held, that, as between the heir- at-law and the personal representatives of the testa- tor, the annuity was primarily payable out of the personal estate — dubitante Knight Brmce, Z.J. Tmch V. Clieese, 24 Law J. Rep. (n.s.) Chanc. 716; 19 Beav. 3. An annuity bequeathed by will, and directed to be paid out of a moiety of the rents, issues, profits, divi- dends, interest and proceeds of the real and personal estate of the testator, after the expiration of a life interest therein : Held, not to be primarily payable out of the personal estate of the testator, but to be apportionable between the real and personal estates. Falkner v. Grace, 9 flare, 282. A legacy directed by an appointment in pursuance of a will to be raised by mortgage of the moiety of the residuary real and personal estate, on the expi- ration of a life interest in such moiety, and the resi- due of such legacy, and another legacy, directed to be raised and paid by mortgage or sale of the whole or any part of the real and personal estate, on the expiration of another life interest : — Held, not to be charges primarily payable out of the personal estate, but to be apportionable between the real and per- sonal estate. Ibid. The rule, where there are two classes of legatees, the one having a charge upon real estate, the other having no such charge, and the personalty is not sufficient to satisfy both, — that the legatees, whose legacies are so charged, shall be paid out of the land, in order to leave the personal estate to those who have no other fund, applies equally to tlie case where one of the legacies only is charged upon real estate. Scales v. Collins, 9 Hare, 656. The Court does not construe a charge upon real estate of one only of several legacies if the personal estate should not be sufficient, as intended for the exclusive benefit of that legatee, but construes the intention of the testator to be that all his legacies shall be paid : and therefore that the charge is to take effect, if the personal estate be insufficient for the payment of all the legacies. Ibid. A testator bequeathed to the treasurer for the time being of the General Infirmary at Leeds the sum of 1 0,000t, to be raised and paid out of such part of his ready money, goods and personal effects, as he could by law charge with the payment of the same ; and he made other charitable bequests in similar terms, besides a number of bequests to indi- viduals given generally, and not made payable out of any particular portion of his property. The testator's estate consisted partly of pure personalty, and partly of personalty savouring of realty ; the latter being more than sufficient for the payment of the general legacies : Held (reversing a decision of the Vice Chancellor Knight Bruce, by which the charity legacies were directed to abate in the pro- portion which the personal estate savouring of realty bore to the whole personal estate, and without reference to the question of what was the precise character to be attributed to the charity legacies, but having regard only to the intention of the tes- tator to be gathered from the will), that the general legacies ought to be paid out of the personalty savouring of realty, so as to leave the pure personalty for the payment of the charity legacies. Mobinaon T. Gddard, 3 Mac. & G. 735: reversing 18 Law J. Rep. (H.s.) Chanc. 454. Held, also, though not as the ground of the deci- sion, that in the present case the charity legacies were analogous to, and had the same incidents as demon- strative legacies to individuals, except so far as re- gards the right of satisfaction out of other assets than the fund out of which they were directed to be paid, a right from which they were debarred by the stat. 9 Geo. 2. c. 36. Ibid. (F) Vested or Cohiinoeht. (a) In general. A testator bequeathed the interest of 3,000i. at hi. per cent, to his daughter for life, and, after her death, he gave the said sum of 3,0002. to trustees in trust for all the children of his daughter, share and share alilse, to be paid to sons at their ages of twenty-one and daughters at their ages of twenty-one or days of marriage, with interest in the mean time on their shares for their maintenance and education, and benefit of survivorship, in the event of any of the said children dying without issue. The testator's daughter had five children living at his death, one of whom attained twenty-one and died in her lifetime without issue : Held, that the representatives of the de-^ ceased child were entitled to his share. Tribe v. Newland, 21 Law J. Rep. (k.S.) Chanc. 283 ; 5 Be Gex & S. 236. A testator gave his residuary estate to R S, the eldest son of P S, and failing him, to the next male child of P S, and failing the male children of P S, to seven persons by name, and the survivors and survi- vor of them, in equal proportions, their respective shares to be at their free will and disposal. R S died in the lifetime of his father, and P S died with- out any other issue : — Held, on the authority of Crippa V. Wolcott, that the gift to the legatees named was contingent, and that the word " survivors" referred to the period of distribution ; and as they had all died in the lifetime of P S, before it could be ascertained whether a child of his could claim, that the gift had failed,' and that the residue passed to the next-of-kin of the testator. Macdmuild v. &-yce, 22 Law J. Rep. (n.s.) Chanc. 779; 16 Beav. 581. A testator bequeathed 3,000t to trustees, upon trust to pay the income for the maintenance of S S and C S, and when the youngest should have been born twenty-one years to divide the principal equally between them, if they should then both be living, but if either of them should be then dead, the testa- tor gave his moiety to the children of M B, C S died an infant. S S attained twenty-one, but died before C S, the youngest, would have been born twenty-one years : — Held, that the interest of S S was vested in one moiety of the fund, and that it passed by his will. In re Smith's WUl, 24 Law J. Rep. (n.s.) Chanc. 466; 20 Beav. 197. Bequest of residue equally between A and B (the wife of C), and if C survived B for him for life, and afterwards to their four children : — Held, that the children took only in the event of C surviving B. Catlley v. Vincent, 15 Beav. 198. Bequest of residue to A for life, and, after her LEGACY; (F) Vested or Contihqent. 423 decease, a gift of 3,000!. each to B and C (grand- daughters), for their absolute use ; and if either of them should be dead at the decease of A, her ZfiOOl. was to go to the grand-daughter who should be then living ; but in case such grand-daughter should hare left children, they were to take her legacy. B died first, leaving children ; C then died without issue, leaving A surviving. On the death of A, — Held, that C'b legacy was vested and passed to her repre- sentatives. In re Srk/ht's Trust, 21 Beav. 67. A testatrix bequeathed her residuary estate upon trust for her sister for life, and after her sister's death to pay, divide, and apply the trust fund in manner following (that is to say): one-tenth to or for the use of R H, and another one- tenth to or for the use of C B, for their respective lives, and in case either of them should die in the lifetime of the tenant for hfe, or afterwards, leaving lawful issue, then the testatrix directed that the part of him or her so dying leaving lawfiil issue should go to and be equally divided among his or her children as they should attain twenty-one: — Held, that a child of C R who survived the tenant for life and attained twenty- one, but died in the lifetime of C R, took a vested interest. Boulton v. Bewrd, 3 De Gex, M. & G. 608. The trustee of the will who, acting upon the opinion of counsel, had distributed the whole estate according to a different view, was ordered to pay to •the representatives of the child tiie amount of the child's share and the costs of the suit. Ibid. A testatrix bequeathed the interest of long annui- ties to her sisters, and in case of one or both of their deaths before hers, " gave the whole of interest in long annuities" to her brother for life. At his death half of the interest she gave to a daughter of the brother till she attained twenty-one, and " then to receive half the capital" Likewise the testatrix bequeathed to a son of her brother the other half; — Held, on the construction of the whole will, that the bequest to the niece and nephew were not contingent upon the sisters' deaths in the testatrix's lifetime. Boosey v. Oardener, 5 De Gex, M. & G. 122. Legacies of 1,0002. each to the three children then living of A, the testator's daughter, with a provision for the payment of the interest for their mainte- nance during minority, and a bequest of 2,000/. to trustees upon trust for A for her life, and from and after her decease for all and every her children living at her decease equally to be divided, with a proviso that if any one or more of the children of A should die under twenty-one, without leaving issue, the original and accrued legacies and shares bequeathed to the child or children so dying should go to the others and other of the said children equally ; and a declaration, that if all the children of A should die under twenty-one, and without leaving issue, the legacies of 1,0602. a-piece shall not be raiseable ; but from and after the decease of the last surviving child, the said legacies — and from and after the decease of her daughter the 2,0002. — should sink into the re- sidue : — Held, that the rights of the children of A in the legacy of 2,000/. were contingent upon their surviving their mother. Farrer v. Barker, 9 Hare, 737. Some of the reasons, which have influenced the Court in decisions in favour of vesting legacies in children, have no application in the case of grand- children, where there is nothing to shew that the testator had placed himself m loco parentis. Ibid. (J) Period of Vesting. A testator bequeathed his residuary personal estate to trustees, upon trust for A for life, and after the death of A the said trust-money and income in trust for all and every the children of A, share and share alike, to the son or sons when they should have attained the age of twenty-one, and for the daughter or daughters at that age or marriage ; with a gift over, if A should die without having a child, or, having any, such children should die, being sons before twenty-one, and daughters before twenty-one or inarriage. A died leaving an only child B, who died under twenty-one: — Held, that the trust pro- perty had vested in B, so that the income between the death of A and the death of B belonged to B's estate. Sidgway v. Sidgway, 20 Law J. Rep. (k.s. ) Chanc. 2S6j 4 De Gex & Sm. 271. A testator directed the proceeds of the residue of his estate to be divided between his three Children in certain shares during their lives; and after the decease of any one or two of his said children, until the de- cease of the survivor, the shares that belonged to the parents in their lifetime were to be divided amongst the children of such one or two of his said children so dying; and after the decease of the survivor of the three children, the whole residue was to be divided between his grandchildren who should be then living equally per capita, and not per stirpes; and if any of his grandchildren should be then dead leaving issue, such issue were to stand in the place of their deceased parent, and receive the same proportion of the estate as such parent would have been entitled to if living. One of the daughters, who died first, had three children, who died in her lifetime. The trustees accumulated the shares of such daughter until th& death of the survivor: — Held, that the representative of the three deceased grandchildren was entitled td such acci^mulations. Homer v. Gould, 20 Law J. Rep. (n.s.) Chanc. 667; 1 Sim. N.S. 541, nom. Somer v. Qould. A testator gave 25,000J. to trustees upon trust to pay the income to his daughter for life, and after her death to pay the capital to the children of his daughter equally, upon their attaining their ages of twenty-one years ; the interest of their shares until their becoming entitled to the principal to be applied for their maintenance; and in case any of the chil- dren should die before being entitled in possession to bis, her or their shares, the shares of those so dying should go to the survivors. The testator's daughter had two children living at his death, who both attained twenty-one, one of whom died in the lifetime of her mother: — Held, that the representatives of the de- ceased child were entitled to a moiety of the fund. In the matter of Yates's Trust, 21 Law J. Rep. (n.s.) Chanc. 281. A testator at his decease left a widow and three children, all of whom attained twenty-one and sur- vived the wife. By his will he gave real and personal estate to trustees " to transfer to each of his children their share after the death of his wife, or as soon as they arrived at twenty-one years, but if one of the three children should die leaving no children, his or her share should be equally divided between the other two, and their heirs for ever." One of the 424 LEGACY; (F) Vested or Contingent, testator's children married, and died, leaving no chil- dren, but leaving his wife surviving : — Held, that he took a vested interest in his share of the testator's property not liable to be defeated upon his afterwards dying without leaving a child surviving. Edwards v. Edwards, 21 Law J. Eep. (n.8.) Chanc. 324; IS Beav. 357. A testator bequeathed to his son William the divi- dends, interest and annual produce to arise from the sum of 3,000i. h\l. per cent. Bank annuities for his life: and after his decease he gave fte said principal sum of 3,S00i. to all and every the child or children of Ilia said son, to be equally divided between them, or if only one child, then the whole to such only child, to be pnid on their respectively attaining the age of twenty-oHe: the interest in the mean time to be applied for their maintenance and education. The testator gave two further sums of 3,000/. to another son and daughter in similar terms: and upon the death of either of his said sons and daughter without issue, then he directed the interest, dividends and produce so given to him, her or them so dying, to be paid to the survivors and survivor in equal shares and proportions. The testator's son 'WiUiam had one child only, who died an infant during his father's lifetime ; — Held, that the infant took a vested inter- est in the 3,000/., liable to be divested by the death of his father without leaving issue living at his death ; and that event having happened, the gift over took effect. Westwood v. Southey, 21 Law J. Rep. (n.s.) Chanc. 473; 2 Sim. N.S. 192. A testator gave a leasehold house, which was let for twenty-eight years, to trustees to pay the rents and profits for the benefit of his five children, whom he named, or the survivors or survivor of them, in equal shares and proportions, share and share alike: — Held, that the words "survivors or survivor" re- ferred to the death of any of them in his lifetime; that the words "share and share alike" referred to those children who should survive him, and created a tenancy in common, and that the interests were vested in the children on the death of the' testator. Ashford v. Haiiies, 21 Law J. Eep. (ir.a.) Chanc. 496. A testator, who died in June 1837, by a will made in 1819 directed, after the decease of his wife, that one moiety of his residuary estate should be divided into five equal parts, which he gave to five several parties, whom he named, and in case of the death of any or either of them before his wife, then their respective shares to go to their respective husbands or wives; and if none, to their respective children ; and on failure of children, to the survivors of them, share and share alike. And as to the other moiety, he gave 10/. thereof to A E, should she be then living ; Aid as to the remainder of the moiety, he gave it to five parties whom he named, and in case of the death of any or either of them, then their respective shares to their children; and if none, then to the survivors of them, share and share alike. The testator's widow died in 1849. It appeared from the inquiries directed as to the first moiety, that all the five persons named as legatees were alive at the date of the will ; three died in the lifetime of the testator, leaving children, six of whom were still living, and defendants to this suit. The remaining two legatees survived the testator, but died before the tenant iar life. They both left children, seven of whom were now living, and defen- dants to this suit. As to the second moiety, A S, one of the legatees, died before the date of the will, leaving four children, all now living, and defendants to this suit. Two others died in the life of the tes- tator, one without issue, and the other leaving chil- dren, two of whom were now alive, and defendants to this suit; and H K, the fifth legatee, was the only one of the legatees named in the will who had sur- vived the tenant for life: — Held, that the legatees took as tenants in common: that children of legatees who would have taken if they had survived tlie tenant for life, were entitled to their parents' share : that the gift to A S, who was dead at the date of the will, and in case of her death, to her children, passed her share to her children who were living at the death of the tenant for life : that the legal personal representative of a son of one of the legatees was entitled to parti- cipate with the other children of the legatee: that the children of a deceased legatee took vested inter, ests in the parent's share whenever the class of those children was to be ascertained : and upon the death of C K, one of the legatees of the second moiety, in the life of the testator, the other legatees then living took vested interests in his share. Ive v. Kmg, 21 Law J. Rep. (s.s.) Chanc. 560; 16 Beav. 46. A testator devised real estate to A in fee, charged with an annuity to B for life, and directed that after the death of B, the estate should be charged with the payment of lOOi a-pieee to X, Y, and Z, and that the same should be paid to them respectively within six calendar months after the death of B, or such of them as should be then living. X died in the life- time of B: — Held, that the legacy to X had not vested, and was not payable to his representatives. Ooodmm v. Drwry, 21 Law J. Rep. (n.s.) Chanc. 680. A testator gave to his wife all his stock in trade, working jewellery and implements of every descrip- tion whatsoever, and all his book debts, ready cash, money in the funds, bills, bonds, notes, or other secu- rities whatsoever, for her life, if she should so long continue his widow; but at her death, or second mar- riage, he gave the said stock in trade, monies, debts and assets, and also all his household furniture, to be equally divided among the children he then had, or might thereafter have. But in case his wife should not marry again, then the testator bequeathed to her all and every his personal estate and effects whatso- ever for her life, and the same to be equally divided amongst such of his children as should be living at her decease, share and share alike: Held, that the first clause in the will was not intended to be a spe- cific bequest, and the last a residuary bequest; but that both clauses were intended to deal with the whole property, and were applicable to different events: the first applying to the testator's widow marrying again, the latter to her dying without mar- rying again; and the latter event being the one which happened, the children living at her death became entitled, to the exclusion of the representatives of those who had died. Wiggins v. Wiggins, 21 Law J. Rep. (n.s.) Chanc. 742; 2 Sim. N.S. 226. A testator gave to trustees a sum of money on the usual trusts for investment, and directed them to pay the income to A for life, and, after his death, to divide the principal between the children of A who should be living at the time of his (A's) death, and the issue of such as should be then dead, leaving issue, so that LEGACY; (F) Vested ok Contingent. 425 the issue of such child so dying should take the part which their deceased parent would have taken if living, to be paid to such children and issue upon their attaining, and in case they should live to attain, twenty-one. A had a child B, who died in his life- time, leaving four children. Two of these children died in their infancy, in the lifetime of A :— Held, that the class to take was all the children left by Bj and that the gift had vested absolutely in all those children. £a/rker v. Barker, 21 Law J. Rep. (n.s.) Chanc. 794; 5 De Gex & Sm. 7S3. Bequest of a sumof money to trustees upon trust to pay the income to A for life, and then to transfer the capital to the child or children of A, aa tenants in common, when they should attain their ages of twenty-one years; and, in case any child should die before his share became payable, leaving issue, such share should go to his issue; and if any child should die before his share should become payable, leaving no issue, such share should go to the survivors; and in case A should leave no child, then that the trustees should pay the same in the manner therein mentioned. A had a child who attained twenty-one, and died in her lifetime: — Held, that the legacy had absolutely vested in A's child. In re Thomson's Trusts, 22 Law J. Rep. (n.s.) Chanc. 273; 5 De Gex & Sm. 667. A testator gave his executors the sum of 20/. long annuities, upon trust to pay the same to H for life, and after her decease to apply such annuity towards the maintenance of her children till twenty-one, and then to transfer the said annuity equally between them J but if H should die without leaving issue, then upon trust to apply the annuity towards the main- tenance of her brother and sister during their mino- rities, and on their attaining twenty-one to assign and transfer such annuity equally between them, but if either of them should be then dead, then upon trust to transfer the whole of the annuity to the survivor absolutely. And the testator gave the residue of his estate and effects to his wife and son. The brother and sister of H both attained twenty-one, but died during her lifetime: — Held, that the residuary lega- tees were entitled to the 201, long annuities, and not the representatives of the brother and sister of H. Widdicomle v. Miller, 22 Law J. Rep. (n.s.) Chanc. 6U; 1 Drew. 443. A testator declared trusts of his estate to be for his wife for life, and after her death he gave the same estate to his first cousins by his mother's side and the issue of such of them as might happen to be dead per stirpes, and to their heirs, executors, adminis- trators and assigns for ever as tenants in common: — Held, that the period for ascertaining the class to take was the death of the testator's widow. Baldwin v. JRogers. 22 Law J. Rep. (n.s.) Chanc. 665; 3 De Gex, M. & G. 649. Held, also, that the first cousins c« ^(Wte »»aier«(J, living at the death of the testator, took vested inter- ests, subject to open so as to let in all other first cousins ex pwrte matemd born before the period of distribution. Ibid. A, by her will, gave legacies of 30i. each to the surviving children of her sister N; and then gave the residue of her property to C N for life, and after her decease such property to be equally divided be- tween her surviving children. At the death of the testatrix C N had five children living; and, at the Digest, 1850—1855. death of C N, four only of her children survived her: —Held, that the words "surviving children" in the gift of the residue must be construed " surviving C N," notwithstanding that in the gift of the legacies they must be' construed as surviving the testatrix. Neathvjay v. Beed, 22 Law J. Rep. (n.s.) Chanc. 809; SDeGex, M. & G. 18. A testator gave all his residuary estate to trustees, upon trust to pay the proceeds to his wife for life, and after her decease upon trust to sell the property and to stand possessed thereof, as to one seventh part, in trust, to lay out and invest the same in a government annuity for the life of his son, and upon further trust to pay such annuity when and as the same should become payable, not by anticipation, to his said son, for his life, for his own use; but the testator declared that in case his son should, either before or after his (the testator's) death, become bankrupt or insolvent, or should do any act to in- cumber the annuity, then the property was to go over to other persons. The testator's son survived the testator and died in the lifetime of the tenant for life, without having become bankrupt or insolvent, and without having done any act to incumber the annuity : — Held, that his personal representatives were entitled to the property. Day v. Day, 22 Law J. Rep. (n.s.) Chanc. 878; 1 Drew. £69. A testator gave to two trustees, in trust for the child or children of his daughter-in-law, the sum of 700?. to each child, to be paid by his executors as soon as each child became of the age of twenty-one years (or by mutual agreement the trust was to Continue longer after each child should have passed the age of twenty-one); the aforesaid sums to remain in the stock and possession of his executors until the whole sum be paid to the said trustees, for the sole use of the said children; but should either child or both children of his daughter-in-law die without leaving issue, then the 700/. for one child (or if both die and leave no issue living), ] ,4002. for the use of other persons: — Held, that the grandchildren of the testator upon attaining twenty -one took abso- lute interests in the money, liable to be divested in the event of their dying without leaving issue. Cottony, Cotton, 23 Law J. Rep. (n.s.) Chanc. 489. A testator gave a portion of his property in trust for each of the seven children by name, of Mary H, by his son, W H, together with every other child thereafter to be born of Mary during the life of his son or within nine months after his decease in equal shares, with benefit of survivorship. He also directed that the trustees should apply such portion of the dividends as they should think fit for mainte- nance, &c. of such children until the youngest should attain the age of thirty, and then upon trust for them respectively and the survivors in equal shares absolutely; and the trustees were authorized, if they should think fit, to make the distribution sooner, provided the youngest child had attained twenty-one : — Held, that the interests of the children were to be ascertained at the death of the testator's son, and that the share of a child who died during the son's life would go to those children who should be living at his decease. Hodson v. Micklethwaite, 23 Law J. Rep. (n.s.) Chanc. 719; 2 Drew. 294. Testatrix, by her will, gave her residuary estate to trustees to invest and pay the dividends to A for life; and after his decease, in case he should leave 426 LEGACY; (F) Vested or ContingeSt. a child or children, in trast for all and every such child or children equally at twenty-one, the share of each such child to be considered a vested interest in him or her; and, in ca^e A should leave no such child or children, the will contained a gift over to third parties. A had one child, H E F, who attained twenty-one, and died in his father's lifetime, leaving a widow and child surviving him. On a suit by the widow of H E F claiming, as his admi- nistratrix, that he was absolutely entitled to the fund, — Held, upon appeal, affirming the decision below, that the persons claiming under the gift over were entitled. Bytliesea v. Byihesea, 23 Law J. Eep. (n.s.) Chanc. 1004. A testatrix gave one fourth part of her residuary property to trustees, upon trust to pay the annual income to her son for life, and after his decease, upon trust, to transfer and pay the capital of the said trust fund unto and amongst the children of her said son in manner thereinafter mentioned. Then followed a clause giving another fourth of the pro- perty to another son, in the same way as the preced- ing fourth, and afterwards a clause providing for the bankruptcy of either of her sons. And she subse- quently declared that the shares of her sons' children should be payable at the age of twenty-one or mar- riage, whichever should first happen : — Held, that the first clause, comprising the gift to the son's children, and the subsequent clause, as to the time at which the shares were to be paid, did not consti- tute a substantive gift in the first place, with a sepa- rate direction to pay, but the two clauses formed only one general direction to pay the trust fund unto and amongst the children in manner following, that is to say, at twenty-one or marriage. The children consequently did not take vested interests until they attained twenty-one. Other parts of the will were referred to, as confirming this view of the case. Stium v. Eobhs, 24 Law J. Eep. (n.s.) Chanc. 377; 3 Drew. 93. Upon a bequest to trustees upon trust to pay the income of the trust property to the testator's daugh- ter for life, and after her decease to divide the capital equally amongst all her children then living, pro- vided all had attained twenty-one; but if not, to apply the income towards the maintenance of all such children until the majority of the youngest, and when that should happen, to divide the capital among the children then living and the issue of such as should be dead : — Held, that the legacies vested at the death of the daughter, notwithstanding a doubt created by a subsequent part of the will. BrocTclehank v. Johnson, 2-1 Law J. Kep. (n.s.) Chanc. SOS; 20 Beav. 205. A testator devised property to trustees for the maintenance of his four children until they severally attained twenty-five, at which time he devised unto such of his said children as should attain that age one- fifth of the property, to hold to them and their heirs. There was a gift over to the " survivors or survivor" 'f any died before attaining twenty-five and left no issue, or if they should die after attaining twenty-five and should leave no lawful issue : Held, first, that their interest did not vest till twenty-five, and secondly, that the words "survivors or survivor" Avas not to be read " other or others." Sleacl y. Piatt, IS Btav. SO. Gift over after an absolute bequest in the event of death, without leaving issue surviving, construed upon the context such a death under twenty-one.. Brotkerton v. Bury, 18 Beav. 65. A testator gave his personal estate and the pro- duce of his real estate (which was to be sold on his youngest child attaining twenty-one) between his children equally. There was a gift over if any child should die after the testator's decease without leaving issue surviving him (omitting the words un- der twenty-one). There were a maintenance clause out of interest and an advancement clause out of capital, until the shares should become payable and transferable, and which referred to the time when the legatees would be absolutely entitled to receive as being or attaining twenty-one. A child died after attaining twenty-one, without leaving issue : Held, that his share did not go over, but belonged to his representatives. Ibid. A testator bequeathed one-third of his residue to his daughter, her executors, &c., to be vested at twenty-one, but not to be payable until twenty-five. He declared it should not be subject to the controul of any husband, but should devolve and be settled by deed upon her as a feme sole, and that the income should not be anticipated, and that until her marriage, she should only be entitled to receive the dividends and retain the power to bequeath the capital by will. The daughter being unmarried : Held, that she took absolutely, and was entitled to payment of the fund out of court on attaining twenty-one. In re Tomtg's Settlement, 18 Beav. 199. Bequest of 2,000/., in trust to pay one half of the interest to Nathaniel for life and the other to Thomas for life, and afterwards to their wives for life; and in case at the death of Nathaniel and wife there should be issue of Nathaniel, to transfer a moiety to the children at twenty-one, and in case there should be no such issue, or they should die under twenty-one, then over, " and so in like manner upon the decease of Thomas and wife, the other half to be transferred to his lawful issue"; and in case of no such issue, or they shall all depart this life before they shall attain twenty-one, then over: — Held, that a child of Thomas, who attained twenty-one, but died in the lifetime of her mother, took no interest Wilsan, v. Mount, 19 Beav. 292. A testator bequeathed leaseholds to trustees to pay the rents to his wife till his son attained twenty- one, and then to assign them to his son. The wife died during the minority of the son : Held, that her legal personal representative was entitled to the rents until the son attained twent3'-one. Laxton v. Eedle, 19 Beav. 321. A testator bequeathed a pecuniary legacy in trust for his sister for life, and after her decease to pay it to her children equally, to be paid at twenty-one, with benefit of survivorship in case of death under twenty-one, with a clause for maintenance. There was a gift over to other parties in case there should be no child living at the death of the sister, such parties to take in the same manner "as is heiein- before directed had any or either of the children of my sister survived so as to become entitled thereto." There were three children; one of them only sur- vived the sister: — Held, that such child took the whole fund. Daniel v. Gossett, 19 Beav. 478. A testator gave a fund to his wife for life, with a power for her to appoint it by will amongst "A, B, C, LEGACY; (F) Vested ob Comtihgent. 427 and their respective children"; and in default of appointment he directed the same at his wife's death to go amongst all the said children equally. The wife made no appointment : — Held, first, that the children alone took to the exclusion of their parents; secondly, that they took per capita; and, thirdly, that the fund vested in the children living at the death of the testator, subject to its being either divested by the exercise of the power or by the birth of other children before the death of the tenant for life. Pattison v. Pattison, 19 Beav. 638. Under a pecuniary bequest, upon trust for the testator's daughter for life, with remainder in trust for her husband for life, and after the decease of the survivor to pay and divide the trust fund to and among the children of the daughter, if more than one, equally to be divided among them, share and share alike, when and as they attained twenty-one : . — Held, that the children took vested interests before attaining twenty-one. Williarm v. Clarlc, 4 De Gex & Sm. 472. A testator gave his residuary estate upon trust to pay to A an annuity during her life, and to accumu- late the surplus income till the expiration of six months after A's death, and then to divide the residue and accumulations into as many shares as there should be children "living" of A and of B who should have lived to attain twenty-one, or in case of any of them being dead under that age, who should have left issue, and pay and apply one share to each of the children of A and B that should have lived to attain twenty-one, and to their respective executors, administrators and assigns, and one share to the issue of each child who should have died under that age leaving lawful issue : — Held, that the word " living" was not referable to the period of distribution but to that of the testator's death, so that each child on attaining twenty-one took a vested interest absolutely. Kidd V. NoHh, 3 De Gex, M. & G. 947, A testator directed the proceeds of his real estate to be invested in stock, upon trust, to pay the divi- dends to his two daughters in equal shares during their natural lives, and " fiom and after their decease to go to their respective children for their support and maintenance until they shall attain the age of twenty-two years severally, they to receive the prin- cipal and interest as they attain such age in equal shares;" should either die before twenty-two, the shares of either of them so dying before the attain- ment of such age to be equally divided among the •survivors or survivor of them : — Held, that the children took vested interests. The divesting clause was held to be void. Hobbs v. Parsons, 2 Sm. & 6. 212. A testator having given certain annuities, gave his real and personal estate to trustees on trust to pay i;hem, and from and after the decease of the last survivor but one of the several annuitants, his chil- dren and grandchildren, upon trust to sell the same, and to render the residue of his estate into money, and to divide the same among the said survivors, whose annuity shall then cease, and all and every bis grandchildren who should be living, if any should be born after the date of his will, and the children of such of his grandchildren, either the said annui- tants or born after the date of his will, as tenants in common, except only that the child of any grand- child who should survive its parent should take its parent's share. The children being all dead and two annuitants hving, — Held, a great-grandson of the testator took a vested interest. Bellamy v. HiU, 2 Sm. & G. 328. A bequest of residuary estate to be invested in consols, and to be held by the executors in trust for all and every the grandchildren of the testator, to be divided equally amongst them at the expiration of twenty years after his decease, held to confer im- mediate vested and transmissible interests to the grandchildren living at the death of the testator; subject to be opened and let in grandchildren who might be born before the expiration of the twenty years. Oppenheim v. Semry, 10 Hare, 441. In a bequest of l.OOOi. to certain persons for life, and (after their decease) of 400/.,-'part thereof, to A and B, part and part alike, viz. 200Z. to A and 200/. to B, for the trouble they might have in the execu- tion of the will; but "in case of either of their death" to the survivor, " and in case of both their deaths to the heirs, executors and administrators of such sur. vivor 200L only." The words "in case of death" were held to refer to death in the lifetime of the tenant for life of the 1,000/. Green v. Barrow, 10 Hare, 4S9. Testator gave personal estate outstanding on secu- rities to his wife for life, remainder in a moiety to six of his children, provided that if any one died before receiving his or her share without leaving lawful issue it should go over. One of the children died, after the wife's death, but before the securities were real- ized and the produce divided : — Pleld, that the proviso contemplated the time when the children should be entitled to receive their shares, not the time of actual payment, and that the representatives of the de- ceased chad took a share. In re Vodgson'a jTrust, 1 Drew. 440. A will contained a gift to children and the issue of deceased children in language that clearly did not vest it in any until the youngest child should have attained twenty-one. In a subsequent part there was a declaration as to the vesting of the shares expressed with much obscurity and partially incon- sistent with the language of the gift : — Held, that it must be rejected, and the clear gift must take effect; consequently that the shares did not vest till the period prescribed, and the representatives of a child who died before the youngest attained twenty-one took nothuig. Bichford v. Chalker, 2 Drew, 327. Bequest of residuary estate upon trust for testator's wife during her widowhood, and after her decease or second marriage in trust for all and every his child and children who should be living at his decease as tenants in common, to become vested in them re- spectively after the decease or second marriage of his wife, when and as they should severally attain twenty-one, with interest on their respective shares, for maintenance and education in the mean time, and with equal benefit of survivorship in case of the death of any of them under age and without issue, with gift over in case of the death of any of the testator's children in his lifetime, or during the widowhood of his wife, leaving issue who should survive the decease or second marriage of testator's wife, to such issue of their parent's share. And the testator empowered his wife to advance to all or any of his children such sums as she might think ad- visable for their advancement in hfe, and to take 428 LEGACY. their promissory note or receipt for the same, and declared that such advances should be received by his children and accounted for to his executors as part of the share of the estate to which they would be entitled at the decease or second marriage of his wife, such advances not to exceed one-half of what they would at the time of such advances be con- sidered as likely to be entitled to at the death or second marriage of testator's wife : — Held, having regard to the proviso for advancement, and to the circumstance that any other decision would have resulted in intestacy as to the share in question, that one of five children of the testator who attained twenty-one and died, leaving issue which died during the widowhood of the testator's wife, took a vested interest in one-fifth of the estate, which passed on his death to his personal representatives. Walker V. Simpson, 1 Kay & J. 713. (G) Specific and Dtemonstrative. Bequest of 10,000/. sterling, "being my share of the capital now engaged in the banking business," &c, : — Pleld to be a demonstrative and not a specific legacy. Sjiarrow v. Josselyn, 1 Beav. 1 35. The produce of a specific legacy misapplied by A, an administrator, being traced into post olnt securities given by B to C, the Court held that the cestui que trust was entitled to a charge on the secu- rities. Harford v. Lloyd, 20 Beav. 310. A specific legacy of 6,000/. consols bequeathed to the plaintiffs was unnecessarily and improperly sold out by the administrator, A, with the aid of B, and the produce carried partly to the banking ac- count of A and the remainder to that of B. A series of shuffling of cheques and transfer of monies took place, but 2,908/. was traced to B. About this time B laid out monies in the purchase of a post obit security, and though the trust monies could not be distinctly traced into the securities, yet the Court held, from the suspicious character of the trans- actions, that such was the just inference so far as to throw on the other side the onus of disproving it, and this not having been done, the Court held that the plaintifls had a charge on the securities for the 2,908/. and interest. Ibid. In addition to this, B had sold and transferred the securities to C in consideration of a debt then owing; C liad notice that the money by which the securities had been obtained had been derived from A, though she had no notice of the breach of trust: Held, that C could not set up an adverse title as against A, and d fortiori that she could not do so as against the plaintifi's (A's cestuis que trust). Ibid. Where, in a residuary gift, specific property is bequeathed, the bequest may, nevertheless, be specific as to that particular property, though general as to the rest. Mills v. Brown, 21 IBeav. 1. A testator bequeathed his consols to A, and directed his executors to sell all such parts of his estate and effects as should not consist of ready money or money in the funds, " and to stand pos- sessed of the monies to arise thereby, with such ready money and the money he might have in the Long Annuities upon trust" for A, B and C r Held, that the Long Annuities were specifically bequeathed, and not liable to contribute towards the payment of general legacies. Ibid. A legacy of a sum of money owing to the testator by A B upon a mortgage of certain premises therein mentioned, and which mortgage was paid off in the testator's lifetime, after the date of the will, held to be a specific and not a merely demonstrative legacy, and to be redeemed by such payment. Sidebotliam V. Watson, 11 Hare, 170. The testator placed part of the mortgage money received by him from A B in a bank, and afterwards drew out a part of such deposit, leaving in the bank at the time of his death a balance amounting to a moiety of the sum which had constituted the mort- gage debt; but it was held, that the specific legatee of the mortgage debt was not entitled in respect of such legacy to the money so remaining in the bank. Ibid. Leasehold property was charged with two demon- strative legacies, being a fixed sum to the executrix and another fixed sum, the estimated remainder of its value, to a legatee, who had also the option of purchasing at the estimated value. The property was held of an ecclesiastical corporation for forty years, renewable every fourteen years, and the execu- trix twice renewed the term out of her own money, but at the end of thirty years she declined to renew a third time. The executrix, on passing the residuary account, had valued the leasehold property at the price fixed by her testatrix; upon this statement a very small general residue appeared. The legatee, who was also tenant of the property, did not exer- cise the option of purchasing, but he retained the interest on his legacy, and paid the balance of rent, which did not keep down the interest on her legacy, to the executrix. On a suit by the legatee, — Held, that there was an admission that the particular pro- perty, not the general assets, was sufficient for pay- ment of the legacy, and that the executrix was not personally liable, but that by the course of her con- duct for thirty years she had lost her priority. Severs v. Severs, 1 Sm. & G. 400. A will contained an absolute specific bequest to an individual, and a limited gift of the residue to the same individual ; the Court, seeing that the absolute specific bequest and the general bequest contained each a distinct and specific subject and object of gift, — Held, that there was an absolute specific bequest, and a limited gift of the residue. Manning v. Pv/r- ceU, 2 Sm. & G. 284. (H) Cdmclative ok Substitutional. A testator by his will gave to each of two daugh- ters the sum of 1,000/., as and when they should re- spectively attain the age of twenty-fivo years, or be married with the consent of his executors ; but in case either should die under the age of twenty-fivo years, or should marry without consent, he directed that the legacy to such one as should die under that age or marry without consent should, after such de- cease of them respectively, or their respectively mar- rying without consent, tall into the residue of his estate ; — Held, that the legacies vested respectively on the happening of either alternative, and were not contingent on the happening of both alternatives, namely, marrying with consent and attaining twenty- five. Tliompson v. Teulon and Teulon v. Tenlon, 22 Law J. Kep. (n.s.) Chanc. 243. 'i'he testator by the same will directed the sum of 1,000/. to be invested, as and when each of the same daughters should respectively attain twenty-five, to LEGACY. 429 te Settled upon trust for them respectively for life, with remainder to their respective children, with a proviso that, if either should die without leaving issue, the trustees of the will should stand possessed of the last-mentioned trust property in trust for the survivor upon the trusts of her original bequest :^— Held, that the legacies directed to be settled were cumulative upon, and not substitutionary for, the legacies of the same amount previously given, but that they were respectively contingent upon the daughters respectively attaining twenty-five years of age; and therefore that the daughter who attained twenty-five, and had issue, did not take any interest in the legacy directed tp be settled upon the other daughter, who died without issue and without having attained twenty-five. Ibid. Bequest of 5001. each to the four children of his niece A B, nomiTiatim, followed by a like gift to each of the children " that may be born" to any nephew or niece : — Held, not to include a fifth child of A B, born at the date of, but not named in the will. Early v. Middleton, 14 Beav. 453. Held also, on the same will, by Sir John Leach, that a child born after the testator's death was not entitled, and by Sir J. L. Knight Bruce, that the four children did not take cumulative legacies. Ibid. A testator bequeathed to his daughter A l,000i. and lOOl. banking shares, and to his daughter B 3,000/. and 1001. shares. By a codicil he revoked both gifts to A, and bequeathed to her 5001. and the 100/. shares specified in his will ; but as to B, he re- voked the 3,000^ only, and gave to her 1,800/. and 100/. shares :_Held, that B was eiititled to 200/. shares, the legacies being cumulative. LohUy v. Stocks, 19 Beav. 392. A testator directed two trustees to stand possessed of 5,000/. in a certain event, upon such trusts as were thereinafter declared concerning the sum of 20,000/. thefeinafter bequeathed in trust for the benefit of his son William, his wife and children. He afterwards bequeathed to two other trustees 20,000/. in trust upon a different event to pay William's wife an an- nuity of 200/. a year: — Held, by the Master of the B.olls, that she was entitled to two annuities, one out of each fund, if the income were adequate. Himdie V. Taylor, 20 Beav. 109 : reversed 25 Law J. Rep. (N.s.) Chanc. 78. By her will a testatrix gave 1,000/. stock to trus- tees upon trust to apply the dividends for the maintenance of her granddaughter until she attained twenty-two, and then in trust for her absolutely; but if she died under twenty-two, then in trust for the testatrix's children living at the granddaughter's death. By a codicil the testatrix revoked the above trusts, and in lieu thereof directed the trustees to apply the dividends for the maintenance of the grand- daughter until she attained twenty-two, and then in trust for her for life, for her separate use; and in the event of her dying either above or under twenty-two, leaving lawfiil issue, in trust for her children equally; but if she should die without leaving lawful issue, then in trust for the testatrix's children living at the granddaughter's death, and the children of any child who had previously died. By a subsequent codicil the testatrix declared that she had altered her views respecting her granddaughter as to the 1,000/. left in the will, which (the testatrix now thought) might prove a snare for her, and the testatrix left 500/. for schooling and board :_Held, that the legacy of 500/. was given in addition to, and not in substitution for, that of 1,000/. given by the codicil. SoMrey v. . Eiimney, 5De Gex & Sm. 698. (I) Conditional. A testator, by a codicil to his will, declared that in ease his daughter should carryjout her intention of taking the veil, becoming a nun, continuing to reside in a convent, or in any other way associating herself permanently with any Roman Catholic establishment of that nature, she should forfeit all claim to, or benefit from, the bequest of 10,000/. given her by his will for life, and afterwards to her children; and he thereby in that case revoked the said bequest ; and in order to prevent any portion of his property from being appropriated to other purposes than the benefit of his family, he excluded his said daughter from all reversionary advantages whatever from his said will. The testator's daughter having associated herself with a convent of nuns at Hammersmith, the trustees of the will paid the 10,000/. into court under the Trus- tee Act. Upon petition by the daughter, that the said sum might be paid out for her benefit, it was held, that the condition imposed was a lawful con- dition, although the will contained no bequest over, and the legatee had forfeited all claim to the legacy. Petition dismissed. In re Dickson, 20 Law J. Rep. (N.a.) Chanc. 33; 1 Sim. N.S. 37. A testator, by will, directed his executors to pay to A 6,000/. upon her marriage, with all the accu- mulations of interest thereon from the time of his death : Held, that the marriage of A was a condi- tion precedent to the vesting of the legacy. Morgan V. Morgan, 20 Law J. Rep. (n.s.) Chanc. 109 ; 4 De Gex & Sm. 164. A testator gave a legacy to A, with the accumu- lations of interest from his death, upon a certain contingency, and gave the income of the residue of his estate to H for life, with remainders over. Some years after the death of the testator it was ascertained that the contingency never could happen : — Held, that H was entitled to the interest of the legacy from the death of the testator until that period. Ibid. A testator directed his executors to sell the whole of his real and personal estate, and invest the pro- ceeds in some government annuity for the benefit of his wife and M L, to be equally divided between them, and at the death of either of them her share was to pass to the survivor, and in case either his widow or M L should marry or live in a state of adultery, then her share to pass to the other, but if they both should marry, then their shares to go to his nephew. The testator also directed his wife and M L out of their annuity to keep in good repair the tomb in which he was buried : — Held, that the re- striction upon marriage was good as related to the widow, but was not good with respect to M L, who was a single woman. Moyd v. Lloyd, 21 Law J. Rep. (n.s.) Chanc. 696; 2 Sim. N.S. 255. Held, also, that the direction to the testator's widow and M L to repair the tomb, which was con- fined to the lives of the annuitants, was not void on the ground of perpetuity. Ibid. A testator gave the residue of his estate to trustees, upon the usual trusts for conversion and investment, and directed them to pay such sums for the mainte- nance and education of his sons M and N, during 430 LEGACY. their minorities, or for apprenticing them, as his trustees should think proper; and declared that, when his sons should have attained their ages of twenty-one years, his trustees should pay the then residue of the monies unto his two sons, provided that they should be, in the opinion of his trustees, of competent understanding and sufficient discretion to manage and take due care thereof. M and N were both lunatic at the time of their attaining their ma- jority: Held, that the qualification as to the sons being of competent understanding did not make the gift to them conditional, and that the testator's e«tate vested in them absolutely. Wright v. Wright, 21 Law J. Rep. (n.s.) Chanc. 775. A testator, by his will, gave to trustees a sum of money, upon trust to invest and pay the income to his nephew for his life, weekly, monthly or quarterly, as they should think fit. The testator declared that his nephew should not have power to anticipate, assign or incumber the income or his interest therein, or any part thereof, and declared that if he did so, or attempted to do so, the trust should be void. Tho testator declared that from and after his nephew's death, or any such attempt, the trustees should hold the capital as part of the residue. The income was in arrear and the nephew assigned, as a security for money lent (so far as he lawfully could without creating a forfeiture of his interest in the income of the legacy), all money due to him on account of the income, but not any future income : — Held, over- ruling the decision of the Court below, that the restraint did not apply to income due at the time of the assignment, but only to future income, and that the assignment, so far as it appHed to only past income, was valid. In re Stultz, 22 Law J. Rep. (".s.) Chanc. 917; 4 De Gex, M. & 6. 404. A testator directed his trustees to pay an annuity to a single woman, by whom he had an illegitimate child, during her life, provided that she should con- tinue single, and that she should neither cohabit nor have connexion with any man ; his reason being that if she were to marry, her child would be neglected; and for a further reason, that no man should have the spending of his hard-earned money. The annui- tant having married, it was held, that the proviso against marriage was valid, the condition being incorporated with the gift, and the object being to protect the child of the testator. Potter v. Richa/rds, 24 Law J. Rep. (n.s.) Chanc. 488. In a gift to A (without any limitation of interest), " and if he should happen to die leaving lawful issue," then to such issue, the contingency has refer- ence to the death of A, and not to that of the testa- tor. A therefore does not take an absolute interest. Oosling v. Tovjmhend, 17 Beav. 24.5. A testator directed his property to be placed in the funds, and the income to be paid to his wife for her Ufe; after her death he bequeathed two legacies of 6,000i. and l,OO0i.; the remainder of his property he left " at the disposal" of his wife if she remained a widow. If she should marry she was to have no controul over his property, but the executors were to pay her an annuity during her life, and the remainder of the testator's property after paying the above legacies was to be divided among his nephews and nieces : — Held, that the widow, who did not marry again, took the capital of the residue, subject to the legEicies. NowUm v. Wahh, 4 De Gex & S. 584. By deed a fund was limited in trust for two bro- thers, Thomas (who was in India) and William, in equal shares; and in case Thomas should die intes- tate without leaving a child before he should return to England, then the whole was to be in trust for William. William died having bequeathed all his property to Thomas, and made him his execntor. The trustees paid the money into court under the Trustees' Relief Act. On the petition of Thomas, Held, that the condition was capable of release, and that the will of William operated as a release of the condition. Ex parte Paimer, 5 De Gex & S. 649. Whether Hoss v. Ross and Cuthiert v. Purrier be reconcileable with Doe v. Glover — gmere. Ibid. (J) StJRVIVOESHIP. A legacy to A for life, remainder to two persons, by name, share and share alike, with remainder to the issue of such as should be dead, and in case either should die in the lifetime of A without leaving issue, remainder to the survivor : — Held, that the one surviving the tenant for life was entitled to the whole fund, though the other died in the life of the testator. In re Domvik's Trusts, 22 Law J. Rep. (n.s.) Chanc. 947. A testatrix directed her trustees to place out a sum of 1 ,0002., and to pay the interest to B R for life, and after his decease the principal to be divided between his son and daughter; but in case of the decease of either of them before the same should be payable, then such principal and interest to be paid to the survivor of them. The daughter of B R died before the testatrix: — Held, that the daughter's share in the 1,000/. did not lapse, but that the whole legacy was vested in the son, subject to his father's life interest, and was not liable to be divested by the death of the son during the life of his &ther, Sms V. Jackson, 23 Law J. Rep. (n.s.) Chanc. 51. Bequest to A for life, and at her decease to her surviving children when they have attained twenty- one : Held, that the survivorship had reference to the death of A, and that those children only who survived her were entitled, Huffam v. ffubhard, 16 Beav. 579. A gift of residuary estate to A, and such of the children of B as should be living at the death of C, their respective heirs, executors, &c. in equal shares as tenants in common, and not as joint tenants; but if any such children should die under twenty-one, their shares to be in trust for the survivor or survivors, and other or others of them the said children of B and the said A living at the decease of C, and his and their respective heirs, executors, &c., in equal shares as tenants in common, and not as joint tenants, so and in such manner that the children of B attaining twenty-one and surviving C and the said A, in case A survive C, should take equally per capita: — Held, that A surviving the testator and dying in the lifetime of C took, nevertheless, with the children of B, who survived C, a vested share in the residuary estate. Fallener v. Grace, 9 Hare, 282. (K) Payment or. The testator bequeathed certain pecuniary lega- cies, and he gave his leasehold estates to his exe- cutors to sell and apply the proceeds in part payment of the legacies : — Held, that the leaseholds were to LEGACY. 431 be applied as far as they would extend in payment of the legacies, and that the deficiency was to be paid out of the general personal estate, Bimting v. Mar- 1-iott, 19 Beav. 163. Bequests to the sons and daughters of D of 200i. each, also to the children of a son of D 200?., to be equally divided among them, to be paid twelve months after the decease of the testator's widow : Held, to be postponed as to all the bequests till after the widow's death. Child v. Ehworth, 2 De Gex, M. & G. 679. (L) In VESTMENT. A testator devised his real and personal estate to trustees upon trust to sell and put out one-ninth of the produce in government or real securities, and to pay the interest to A for life, and afterwards to her children. By a codicil he bequeathed a lease- hold to the trustees to hold upon the same trusts in all respects, and for the same persons, and subject to the same powers, provisoes, conditions and limitations, as the above one-ninth : — Held, that A was not en- titled to enjoy the leasehold in specie, but that it must be sold and invested for the benefit of the persons entitled in succession. Mwton v. MarTcby, 18 Beav. 196. (M) Abatement. A, having become possessed of property under the will of E H, expressed a desire in his will to make gifts to her relations. He then gave legacies to several persons by name, and added, " but if the personal estate and eflfects I became entitled to under the will of E H should fall short in paying these legacies, my desire is that 500?. out of any other part of my personal estate shall be applied for that purpose." The legacies given amounted to 2,800?.; the personal estate of E'H amounted only to 1,279?. Bs. 6d., and after adding the &001. was in- sufficient to pay the legacies in full by 1,020?. 1 4s. 6d. : — Held, that the general personal estate of the tes- tator was not liable to make up the deficiency. That the sums of 1,279?. 5s. 6d. and 500?. were alone ap- plicable to "pay the legacies, and that they must abate proportionately. Bead v. Stramgways, 20 Law J. Rep. (n.s.) Chanc. 487; 14 Beav. 139. A testator gave all his property to trustees in trust to pay his debts and funeral and testamentary ex- penses, and to invest the residue in the funds, and out of the interest and dividends to pay certain an- nuities to his daughter and other persons, and after payment thereof to pay the remainder of the interest and dividends to his wife for life; and after her decease, in case his daughter should have no child, to pay to his daughter a further annuity during her life ; but if .his daughter should have a child living at the decease of his wife, or bom afterwards, her annuities should cease, and his trustees were to raise 20,000?. out of his trust estate, and hold it in trust for his daughter for life, and after her death for her children ; and if the children should die under tvventy.-one, that it should sink into his residuary estate thereinafter disposed of ; and he further directed that after the decease of his wife, his trus- tees should pay the sum of 5,000?., part of his resi- duary estate, to such person as his wife should appoint by will, and he gave his wife power to dispose of 1,000?. either by gift in her lifetime or by will to her three co-trustees. The estate was insufficient to pay the annuities and sums of 5 000?. and 1,000?. in full : — Held, reversing the decision of the Court below, that the annuities and legacies must abate proportionably, and that the annuitants were not entitled to have their annuities made up out of the corpus of the estate. Miller v. ffuddle- stone, 21 Law J. Eep. (n.s.) Chanc. 1 ; 3 Mac. & G. 513: reversing 17 Sim. 71. A testator having a power of appointment by will over a sum of stock, bequeathed two sums of 5,000?. and 500?. sterling thereout to A and B, and the residue to his son. The stock became in equity liable to his debts, and by payment thereof and of the costs of the suit, the fund became less than 5,600?. sterling : — Held, that the pecuniary and residuary legatees were not liable to abate propor- tionably, but that the residuary gift failed altogether. Petre v. Petre, 14 Beav. 197. A bequest of an annuity to an executor for his trouble in the conduct and management of the testator's aifairs, has no priority over other legacies, in case of a deficiency, and it must abate. Duncan •■ "^""1, 16 Beav. 204. Legacies directed to be invested and to become payable and paid in a certain order with interest from the testator's death. The assets being deficient, the Court, on the context, — Held, that they were payable pari passu. Lord Bunboyne v. Brmider 18 Beav. 313. ' A testator by his will directed 60,000?. to be invested in lieu of 6,000?. secured by his marriage settlement, and the interest to be paid to his wife for life, and after her decease the principal to be applied as therein mentioned. He then directed sundry legacies to be invested for certain relatives to be paid within a year after his death, if they should be of age ; and if not, upon coming of age, with mterest in the mean time; but the principal sums were not to be paid till after the payment or invest- ment of the 60,000?. He then gave other legacies, and directed that the several sums given by his will' and not thereinbefore particularly directed, "should' be invested in the order, and become payable and paid m the manner thereinafter mentioned;" and that the 60,000?. should be the sum first paid and mvested ; that a legacy to one of his sisters should be next paid and invested, and so on: Held that except as to the 60,000?., the priority intended was a priority of administration or realization of assets and not of rights and interests ; and, therefore (the estate being insufficient), that all the legacies excent the 60,000?., abated i)TO rate. Ibid. The testatrix by will " out of the residue of her property'' gave a legacy to A. By a codicil, she directed her executors " out of the residue of her estate, in case there should be sufficient," to invest a legacy for B. The residue being deficient,_Held that these legacies must abate jxwi passu. EoAie- staffv. Austin, 19 Beav. 591. (N) Ademption and Satiseaotion. The doctrine of ademption is of a purely equitable character, and does not prevail in a court of law Jamieson v. Trewlyan, 10 Exch. Rep. 269. By the settlement made on the marriage of A and B, their trustees T), E and F were directed to stand possessed of 10,000^., il. per cent, consols, which 432 LEGACY. had been transferred into their namee, on trust forB for life, with remainder for the children of the marriage. D was the father of B. T>, E and F lent 2,0001., part of the trust funds, to A, who became insolvent. D, by his will, directed 6,000^., 3\ per cent, annuities, to be placed in the names of the trustees of the settlement of his daughter B, and in the name of C, his executor, whom he appointed a trustee in his place ; — Held, that the legacy of 6,000?. was a satisfaction of the debt of 2,000?. due from D to the trust estate in respect of the breach of trust. Bensusan v. Nehemias, 20 Law J. Rep. (n.s.) Chanc. 536 ; 4 De Gex & S. 381. A testator gave to his wife the dividends which should happen to become due and payable in her lifetime, upon several specific sums of stock standing in the names of three persons, and after the decease of his wife he gave all subsequent dividends upon the said sums of stock to be apphed for certain charitable purposes for ever. After the date of the will one of the persons in whose name the specific sums of stock were standing died, and thereupon the testator became absolutely entitled to such sums of stock, and caused them to be transferred into his own name : — Held, that there had been no ademp- tion of the specific legacies of the stock ; that the gift of the dividends of stock for charitable purposes for ever passed the corpus of the fund, and that there must be an apportionment of dividends, in which the widow took a life interest, for the period intervening between her death and the half-yearly days of payment. Tyrrell v. Clarh, 23 Law J. Rep. (h.s.) Chanc. 283 ; 2 Drew. 86. A testator gave one-third part of the " amount of money" that might accrue from his claim on a testator's estate in course of administration in Chan- cery to his son, and the other two-third parts thereof to his wife and son-in-law for their lives, with remainder to his son. The larger part of the amount was, after the date of the will, received by the testator, under orders of the Court, and invested in his name in consols ; some .small part of which he sold, but afterwards re-purchased in part. The executrix on the testator's death treating this stock as the subject of the legacy, transferred the son's one-third to him, and she also transferred the two- third parts to trustees who paid the income to her and to the son-in-law : — Held, on the principle of the Civil Law, that the testator having set apart a specific fund received by him in order that it may te expressly reserved for the benefit of the legatee, it was not adeemed. ClarJc v. Browne, 2 Sm. & G. £24. Held, also, that the acts and course of dealing for a period of thirty-two years, with the fund as appro- priated to answer the legacy, was a circumstance of great weight in rebutting the case of ademption, and the claim on the footing of a resulting trust. Ibid. The confirmation of a will by a codicil, does not revive a legacy adeemed in the interval between the will and codicil. Montame v. Montague, 15 Beav. 565. A testator bequeathed " the principal sum " secured to him by a mortgage in fee. It was after- wards voluntarily paid off in the testator's lifetime : — Held, that the legacy was adeemed. Phillips v. Turner, 17 Beav. 194. A bequest to the trustees of a chapel towards the reduction of their debt on that chapel, — Held, to be payable to the trustees, though the debt incurred in building the chapel had long before been paid off, and the only debt since incurred was one owing by the trustees in respect of the chapel, but upon their own individual responsibility. Bunting v. Marriott, 19 Beav. 163. " After payment of his debts" the testator gave certain legacies, one of ,160?. to E B, and he directed his executors to pay " my bequest only to the individuals herein named." The testatoj owed E B 150?.: — Held, that the legacy was not a satis- faction of the debt, but that E B was entitled to both. Jefferies v. Michell, 20 Beav. 15. (0) Remission op Debt. By an indenture, dated in May 1850, A conveyed all his real and personal estate to trustees upon the usual trusts for sale, and directed them to apply the proceeds in the payment rateably of the debts in the schedule to the deed set opposite to the names of certain specified creditors; and such creditors covenanted with A that they would not bring any action, &c. against A in respect of such debts, and that, if any action, &o. should be brought, the deed might be pleaded as a release. B, one of A's credi- tors, executed this deed in respect of a certain debt, and made his will in June 1 850, whereby he gave a legacy to A, and directed that, if any legatee should be found indebted to him in any sum on bond, &c. or otherwise, such sum should be taken as part of his legacy. B died in December 1850. B's executors received only 7*. in the pound on the debt : Held, that B's executors were not authorized to set off the difference between the debt and the composition from A's legacy. Golds v. Greenfield, 23 Law J. Rep. (n.s.) Chanc. 639; 2 Sm. & G. 476. (P) Assent of Executor. T F the elder bequeathed certain leasehold pre- mises to T F the younger, in trust to sell the same, and out of the proceeds to retain for his own use 150?., to reimburse himself funeral expenses, &c., and to divide the surplus, if any, amongst the testator's children and grandchild. T P did not take out probate of his father's will, but entered into possession of the premises in question, and retained them till his death, having, by his will, bequeathed them to his executors, who demised them to the defendant. The plaintiff having taken out administration with the will annexed of T F the elder, and brought ejectment to recover the pre- mises, — Held, that he was not entitled to recover, as the act of bequeathing the premises by T F the younger was evidence of the latter having elected to take the premises as legatee, Fenion v. Clegg, 23 Law J. Rep. (n.s.) Exch. 197; 9 Exch. Rep. 680. The widow of a testator, who was his executrix and also legatee for life of certain leaseholds, with a limitation over on her death to the testator's chil- dren, entered into possession of the leaseholds, and received and applied the rents to her own use. From the Master's report, it appeared that the widow, during the whole of her life, had been in advance to the testator's estate: — Held, upon appeal, confirming the decision below, that, under the cir- cumstances, such receipt and application of therents LEGACY. 433 did not constitute an implied assent to the legacyi Trails. Bull, 22 Law J. Rep. (n.s.) Chanc. 1082. (Q) FOEEEITURB. A testator gave certain shares in his property to his nephevrs and nieces, and he revoked all legacies and bequests which any of his legatees should endeavour to sell, mprtgage, or in any way antici- pate; and in case any of his nephews or nieces should at any time before their respective legacies became due and payable, become bankrupt or com- pound with his or their creditors, then he revoked the legacy to such person. One of the nephews, before his share became payable, executed a deed assigning all his stock-in-trade, &c., and all his pro- perty and estate, both real and personal, of which he was possessed, or to which he was entitled, to trustees, to make an inventory thereof, and to pro- ceed to sell the same for the benefit of his creditors: Held, that the deed was not a composition with creditors; that there was no forfeiture of the legacy; and that it did not pass under the deed of assignment, but went to the representatives of the nephew. In re Waley'a Trust, 24 Law J. Rep. (n.s.) Chanc. 499; 3 Drew. 165. (R) Void. A testator directed his trustees to set apart suffi- cient stock to produce TOOL a year, and pay, among others, an annuity of 200L a year to his brother Thomas for life, and after his decease to continue it among his brother's children then living, in equal shares, during their lives, and, at the decease of any of them, the stock, from which the 200^. a year arose, was to be sold, and the produce divided equally amongst the children of him or her so dying, as they should severally attain twenty-one, with interest in the mean time to be applied for their benefit; and he said, "I give them vested interests therein;" and if any of his brother's children should at his decease be dead, and have left issue, such issue should be entitled amongst them to the money they would eventually have been entitled to had their parent outlived his brother. If any of the parties antici- pated the payment, or sold his interest before due, it was declared to be forfeited, and applied as if such parties had died before the legacy fell due. The testator then appointed his trustees, executors and residuary legatees. 23,3332. 6s. 8d. was set aside to answer the 7002. a year. The testator's brother Thomas died leaving six children, of whom Richard was one, living at the date of the will, and he, after the decease of his father until his death, received an annuity of 33i. 6s. 8d., being one-sixth of the200i. a year. Richard died leaving three children surviving, one of whom was born in the lifetime of the original testator :— .Held, that the children of Richard were not entitled to the money representing the annuity to which he was entitled, but that it feU into the testator's residuary estate. Qreenviood v. Roberts, 21 Law J. Rep. (n.s.) Chanc. 262; 15 Beav. 92. A testator directed trustees to pay the interest of a sum of 1,0002. to A for life, and, after her death, to divide the principal between the child and chil- dren of A, and if there should be only one child, then the whole to such child, to be a vested interest or vested interests on their respectively attaining the age of thirty years, and directed that, if any Digest, 1850-1855. child should die under thirty years, without lawful issue, the share of him or her so dying should go to the survivors or survivor, and become vested at the same time as their original shares. B, one of the children of A, died in the lifetime of A under thirty years of age : — Held, that the gift to B as one of the children of A was a valid bequest, and that the gift over on the death of B without issue was void for remoteness, and therefore that the representatives of B were entitled to a share of the fund. Taylor v. Frobisher, 21 Law J. Rep. (n.s.) Chanc. 606; 6 DeGex&Sm. 191. Gift to trustees for E W for life, and after his decease to assign, &c. to all his children who should be living at his decease, and who should be or live to attain twenty-five, and to apply the income in the mean time for their maintenance. E W died in 1837, leaving eleven children ; the testator died in 1845. Pour only of the children of E W survived : the youngest attained twenty-five in 1848 : Held, (following Williams v. Teale, 6 Hare, 239), that the gift was void for remoteness. Southern, v. Wollaston, 22 Law J. Rep. (n.s.) Chanc. 664; 16 Beav. 166, 276. A testator, who was an Armenian merchant, by his will, made in India in the year 1791, directed that his property of every 'description should be administered according to the law of England. He then gave various legacies and directed the residue of his estate and effects to be divided into sixteen shares, six of which were to be placed in the govern- ment funds of Great Britain, there to remain for ever in the testator's name, and the interest thereof to be received by his three sons, Alexander, John and Lewis, successively for life, and after the death of the survivor of hia three sons the interest to be received by the first and other sons of Alexander and their issue in succession for life; and in default of issue of Alexander the interest to be received by the first and other sons of John and their issue in suc- cession for life, with a similar direction in default of issue of John, for the benefit of the issue of Lewis: — Held, that after the life estates to the testator's three sons, the rest of the gifts were void for remote- ness. Haphael v. Boekm; Gocklwrn v. Raphad, 22 Law J. Rep. (n.s.) Chanc. 299. A testator, by his will, gave the residue of his estate to his children for their lives; and declared that if any daughter should die, leaving a husband, her share should be paid to him for his life, and, after his death, should be divided between the chil- dren of such daughter then living in equal shares : — Held, that the gift to the children of such daughter was void for remoteness. Lett v. Randall, 24 Law J. Rep. (n.s.) Chanc. 708; 3 Sm. & G. 83. A testatrix appointed a trust fund to two trustees in trust to pay the dividends to A for life, and after his decease she gave the dividends to two others, B and C, for life; and after the decease of the survivor she gave, bequeathed, willed and directed the prin- cipal to be divided into two parts, and one of them to be " transferred or paid" to the children of those two persons respectively at the age of twenty-five years :_Held, that the gift to the children was void for remoteness. Chamce v. Chance, 16 Beav. 572. Bequest of personal estate to A for life, remainder to the children of A equally, and in default of issue of A upon trust to sell and divide equally amongst 3K 434 LEGACY. B and C and all their children " then" living, share and share alike: — Held, that the gift was too remote, and that B and C and their children, living at the death of A, alone took the personal estate as tenants in common absolutely. B died before A, but never- theless she was held to take a share both in the realty and personalty. Cormack v. Copcma, 17 Beav. 397. A testator bequeathed the income of his residuary estate between his three children, and when any child died, his part to be equally divided amongst the testator's surviving grandchildren; and like- wise, if any of. his grandchildren died, their part to be divided amongst the survivors of his other grandchildren : — Held, that the gift over upon the death of a grandchild to the surviving grandchildren was void for remoteness. Courtier v. Oram, 21 Beav. 91. Gift by the testator to his wife for life, or until her second maa-riage, of the interest of his real and personal estate, which, whether arising from rents or public securities, was to be applied for the benefit of herself and children; and if she married again, he declared that her power and benefit under his will should cease; and when thirty years were expired, he ordered all his property, both freehold and leasehold, to be sold, and two-thirds to be divided amongst his children living at that period or to their heirs, and one-third to be invested for the benefit of his wife; and after her decease he bequeathed such third to his children then living and to their heirs : — Held, that the gift at the end of thirty years was not hable to objection on the ground of remoteness; that there was no substitution of the legatee created by the gift to the children "or to their heirs," but that the word " or" must be read " and," and that the children of the testator living at the end of thirty years (who were also the same children as were living at the death of the widow) were entitled to the proceeds of the sale of the estate, and also to the intermediate rents after the death of the ^vidow and before the expiration of the thirty years. Laclikm v. Reynolds, 9 Hare, 796. (S) Revoked. H W, by his will, gave the use, income, and enjoyment of his personal estate to his brother, F O W, for life, and, after his death, the testator gave all his property to the eldest son then living of Capt. W, who had three sons, of whom W was the eldest. By a codicil, the testator said, " I revokes© much of my will as relates to W, and I leave my brother F W in full enjoyment of all my pro- perty " : — Held, that the codicil revoked the gift to the eldest son of Capt. W, and F O W took all the property absolutelv. WeUs v. Wells, 23 Law J. Eep. (n.s.) Chanc.'691; 17 Beav. 490. A testator bequeathed one moiety of his personal estate to pay certain legacies, and then to pay the residue of such moiety to J 3, and in the event of the death of J J, living H, then over, provided if J J left a widow, to pay to her 200^, part of the monies so given to J J. By a codicil the testator revoked the gift of the moiety to J J : Held, that the 200/. legacy to his widow was revoked by the revocation of the gift of the monies out of which it was to be paid. Grice v. Pimmell, 1 Sm. & G. 130. A codicil revoked valid bequests in a will, and be- queathed the property to a fund which was being raised for the purpose of buying land for a charity : — Held, that although the gift by the codicil failed, the revocation, nevertheless, took effect. Onions M.Tp-er (1 P. Wms. 343) distinguished. Tnpper V. Tupper, 1 Kay & J. 665. (T) Lapsed. A testatrix gave her residuary estate, after the death of three persons, upon trust to pay and assign it equally between G B and E B, their executors, administrators and Eissigns; but if neither of tliem should be living at the death of the survivor of the tenants for life, she gave the same to F H. G B died in the lifetime of the testatrix, but E B survived the tenants for life : — Held, that the gift lapsed as to a moiety of the residuary estate; that no joint estate was created between G B and E B; that no right by survivorship arose by implication; that the event had not happened upon which the gift over was to take effect; and that one moiety of the re- siduary estate was undisposed of and belonged to the next-of-kin of the testatrix, and that the costs must be paid out of her estate. Baxter v. Losh, 21 Law J. Eep. (n.s.) Chanc. 5S; 14 Beav. 612. A testator by his will recited that on his marriage he had entered into a bond to leave his wife the sum of 800?. on his death, and that he intended shortly to distribute a sum of 6,000/. in his lifetime amongst her relations, in lieu of any claims under the bond. The testator then directed that, in case of his death before carrying his intention into effect, the said sum of 6,000/. should be divided between and amongst the said relations of his wife in such manner, shares and proportions as would have been the case if his wife had died possessed of the said sum a spinster and intestate. The testator's wife had died before the date of his mil, and had left sixteen next-of-kin, five of whom died before the testator : Held, that the eleven surviving next-of-kin took each one six- teenth of the 6,000/., and that the shares which the other five would have taken had they lived lapsed, and went to the testator's residuary legatees. In re Sam^s Trust, 21 Law J. Rep. (h.s.) Chanc. 217; 2 Sim. N.S. 106. Held, also, that the lapsed shares, being the only residuary property over which the Court had power, should bear the costs of the petition for determining the question raised upon the construction of the will. Ibid. A bequeathed a legacy of S,000/. to B, with a declaration that if B died in his lifetime, the legacy should not lapse, but should go and devolve on his personal representatives. B died in A's lifetime, having, by his will, appointed C, his widow, and D his executor and executrix, and given all his personal estate to C, and leaving C and three children his next-of-kin according to the Statute of Distributions. C and D both proved the will : — Held, that C in her own right was alone entitled to the legacy of 5,000/. Hewitson v. Todkimier, 22 Law J. Eep. (n.s.) Chanc. 76. A testator, by his will, dated in 1822, appointed A (his widow) and B his executors, and gave B a legacy for his trouble, and bequeathed his personal estate to A and B, on the usual trusts for conversion, and directed that the income of the proceeds should be paid to A for life, and that after fier death, his LEGACY. 435 trustees, or the survivor of them, or the executors or administrators of such survivor, should stand pos- sessed of one-half of the capital for A, her execu- tors, administrators and assigns. A died in the life- time of the testator. The testator had been illegiti- mate : — Held, that the lapsed part of the testator's estate belonged to the Crown, and not to B, the executor. Powell v. Mareti, 22 Law J. Eep. (n.s.) Chanc. 408 j 1 Sm. & G. 381, nom. PoweU v. Mer- rett. A testator bequeathed a sura of 5,000i. in trust for his widow for life, with remainder to the separate use of his two nieces equally, or in the alternative to the children, living at the death of the tenant for life, of such of the nieces as should die in her life- time, as tenants in common. The testator also be- queathed the residue of his funded property in trust for his widow for life, with remainder, in trust for the henefit of his two nieces in the manner thereinbefore directed as to the sum of 5,000/. One of the nieces pre-deceased the testator, leaving three children : Held, that the children of the deceased niece were not entitled to the moiety of the residuary funded property bequeathed to her, and that the testator died intestate as to that moiety, except as to his widow's life interest therein. Lumley v. Bohhins, 22 Law J. Rep. (n.s.) Chanc. 869; 10 Hare, 621. (U) Eesidub. [Lichfield V. Baker, 4 Law J. Dig. 345; 13 Beav. 447. Mofpp v. Ellcock, 6 Law J. Dig. 399 : affirmed 3 H.L. Cas. 492.] A testator, by his will, devised and bequeathed all his freehold and copyhold estates and his personal estate to trustees, upon trusts for sale and conversion into money, and directed them to pay certain lega- cies, but did not make any residuary bequest. The testator, by an unattested codicil, gave other legacies out of the mixed fund, and appointed A, B and C his residuary legatees : — Held, that A, B and C were entitled to the surplus produce of the copyhold estates. Wildes v. Davies, 22 Law J. Rep. (n.s.) Chanc. 495; 1 Sm. & G. 475. As to the residue " of his estate and effects, what- soever and wheresoever, canal shares, plate, linen, china and furniture," the testator devised and be- queathed the same to his wife: — Held, that the residuary personal estate passed, and that the general words were not limited to things ejusdem generis with canal shares, &c. Fisher v. Hepburn, 14 Beav. 626. Cnder the law prior to the 1 Will. 4. c. 40, the gift of a legacy to the wife of the executor does not prevent his taking the undisposed-of residue bene- ficially. Fruer v. Bouquet, 21 Beav. 33. (V) Intbeesi ok. Legacies given by will which directed them to be paid within three months after a testator's decease will bear interest at il. per cent, from the expiration of the time at which by the will they were so directed to be paid, although the fund out of which they were made payable and their manner of pay- ment were varied by codicil. Lord Londesborough v. Somerville, 23 Law J. Rep. (n.s.) Chanc. 646; 19 Beav. 295. The allowance of interest upon a legacy charged upon real estate, and due lipwards of six years, is to be calculated from the filing of the bill, and not from the date of the decree, though the bill is not filed by the legatee. Chappell v. Sees, 1 De Gex, M. & G. 393. A bequest of a legacy upon trust to apply so much of the interest as the trustees should think proper in the maintenance of the testator's grandson until twenty-one; and upon his attaining that age to pay the whole of the interest of the legacy to the grandson for his life ; and a direction that after the decease of the grandson the trustees were to stand possessed of the legacy and interest, and all accu- mulations, in trust for the grandson's children, with remainder, in default of such issue, over : — Held, that the provision for the maintenance of the grand- son during his minority, out of the interest of the legacy, shewed that the interest was intended for him ; that the legacy vested in interest (although not in enjoyment) before the grandson attained twenty-one; and that the grandson was therefore entitled to the interest which accrued during his minority, and was not applied in his maintenance. That the unapplied accumulations during the minority of the grandson did not go with the capital of the legacy, because the disposition of the capital after the grandson attained twenty-one was of the interest and certain specific accumulations, not including the accumula- tions during the minority. In re Bonse''a Fstate, 9 Hare, 649. A legacy to a child carries interest, on the ground of the presumed intention of the parent to fulfil his moral duty of providing for the maintenance of his child; but if he has discharged that duty by pro- viding for the maintenance of the child out of another fund, the legacy does not necessarily carry interest. Ibid. (W) Annuity. A testator, by his will, gave to E L " 501. per year for she and her children, and after her decease the money shall be paid to each of them as they attain the age of one-and-twenty; but if either of them die, to be paid to the survivor" : — Held, affirming a de- cision of the Master of the Rolls, that the bequest was of a perpetual annuity. Potter v. Baher, 21 Law J. Rep. (n.s.) Chanc. 11 : affirming 13 Beav. 273. See also 15 Beav. 489. A testator gave an annuity of 100/. to his son for life, and he died leaving a child him surviving ; he continued the same annuity for such child's benefit, to be paid to his or her mother : — Held, upon appeal, reversing the decision of the Court below, that the son's child took an annuity for life only, to be paid during minority to the mother. Tates v. Maddcm, 21 Law J. Rep. (n.s.) Chanc. 24; 3 Mac. & G. 532: reversing 18 Law J. Rep. (n.s.) Chanc. 310 ; 16 Sim. 613. An annuity of &001. given by a father to a son, by a will, and made payable generally out of the rents of real estate, — Held, to be no satisfaction of an annuity given by deed and charged upon real estate. Lethbridge v. TJmrlow, 21 Law J. Rep. (n.s.) Chanc. 538; 15 Beav. 334. The gift of an annuity " clear of legacy duty and every other deduction whatsoever," or " without any deduction for legacy duty or otherwise," will not authorize .the payment of the income-tax out of the testator's e^ate. Ibid. 436 LEGACY; (W) Annuitt. A testator devised real estate to B, charged with an annuity to A for her life, with powers of distress and entry. The rents fell short of the annuit)', and an arrear became due to A. A sum of money (less than the arrear) was paid into court by a railway company in respect of a part of the estate which had been taken by them : — Held, that A was entitled to this sum in respect of her arrears. In tke Tnatter of Tinkler's Trusts, 21 Law J. Eep. (n.s.) Chanc. 672; 5 De Gex & Sm. 722. A testator directed three trustees to raise a fund sufficient to pay an annuity to one of them, and gave power to resort to the residue if the fund should become deficient. The three trustees invested more than enough on mortgage, and paid the annuity out of it. On the mortgage being paid off, the annuitant (a trustee) received the money, and misapplied it. The annuity had been assigned, and the assignment recited the appropriation. The purchaser filed a bill against all the trustees to compel them to pay the money misapplied, or for a resort to the residue to make good the same : Held, that there had been an appropriation, that the recital was binding on the purchaser as to appropriation, and that the pur- chaser had no claim upon the residue, the fund not having become deficient within the meaning of the will. Sa/rnett v. Sheffield, 21 Law J. Rep. (n.s.) Chanc. 692; 1 De Gex, M. & G. 371. A testator directed the investment of personal estate sufficient to pay 2/. a week to J W during his life; and after his death, the capital to fall into the residue. He directed that when his youngest child attained twenty-one, the residue of his personal estate should be divided equally among his, the testator's, children, except J W, and in like manner, on the death of J W, to divide the fund invested for the annuity among all the testator's other children then li\ ing, and the issue of such as were then dead equally. The residue was invested, and was not sufficient for payment of the annuity. The Court below held, that, as the corpus was given in a subsequent clause of the will to different persons than the residue, the annuitant was only entitled to the dividends of the fund, for that there was no specific gift of the annuity charged on the whole personal estate; but, on ap- peal, — Held, that the annuitant was entitled to his annuity in full, and to have the arrears and future payments made good by a sale, from time to time, of the capital of the appropriated fund. Wright v, Callender, 21 Law J.Bep. (n.s.) Chanc. 787; 2 De Gex, M. & G. 652. A testator, having real estate and personal estate invested in foreign funds, by his will, gave certain pecuniary legacies, and proceeded: "1 desire that my executors shall purchase annuities for each of my two sisters, A and B, of lOOZ. a year each, the said annuities to be purchased in the British funds." And, after giving several other annuities, he directed his real estate to be sold, and the produce to go " in carrying out" the said annuities; and should such produce not be sufficient, the remainder was to be made up out of his personal property; and after directing a sale of his personal property, he desired that after the annuities had been " effected," the re- mainder of his personal property should be laid out in the purchase of an annual income in the 3/. per cent, consols for the benefit of the Middlesex Hos- pital: — Held, upon appeal, reversing the decision below (dUseniiente Lord CranvjorthJ, that the an- nuities given to A and B were perpetual annuities. Xerr v. the Middlesex Hospital, 22 Law J. Kep. (H.S.) Chanc. 3SS; 2 De Gex, M. & G. 576. A direction to purchase an annuity in " the Bri- tish funds" cannot be construed as a direction to purchase a government annuity. Ibid. A testator bequeathed an annuity to an unmarried woman for the term of her natural life, if she should so long remain unmarried : — Held, that the words created a limitation, and were not a condition, and that on the marriage of the annuitant the annuity ceased. Heath v. Lewis, 22 Law J. Rep. (n.s.) Chanc. 721; 3 De Gex, M. &. G. 954. A testatrix gave A B an annuity for life, and after her " death the principal reverts to her father and his children." The investments were not to be al- tered without her consent, the overplus of the income to go to the father and his children : — Held, over- ruling a decision of the Court below, that this was a gift of an annuity for life, and a gift over of the pro- perty subject to the annuity; that the case was that of annuitant and residuary legatee, and not that of tenant for life and remainderman. Croly v. Weld, 22 Law J. Rep. (n.s.) Chanc. 916; 3 De Gex, M. & G. 993. A testatrix directed her trustees, as soon as pos- sible after her decease, to invest in consols such a sum of money as might be nectssary to realize such an amount of dividend as would be fully sufficient, with the rent of her land at Kenilworth at that time payable, to make up the sum of 50t per annum, which she directed to be paid to T J during his life, and after his decease the principal to go in the man- ner pointed out by her will : — Held, that the invest- ment was to take place from the expiration of one year after the death of the testatrix. No provision was to be made for future reduction in the rent of the land at Kenilworth, and no deduction to be cal- culated in respect of land-tax or other taxes. Hiiet V. /oeiiow, 23 Law J. Rep. (h.s.) Chanc. 51. In a suit instituted to carry into effect the trusts of a will, the Court refused to allow interest upon the arrears of an annuity granted upon the marriage of the testator's son, though it was secured by his bond. Laimson v. Lainson, 23 Law J. Rep. (n.s.) Chanc. 170; 18 Beav. 7. A testator directed an annuity to be purchased for the life of his two sisters, to be equally divided be- tween them : — Held, that the annuity was only to continue during the joint lives of the two sisters. Grant V. Wimbolt, 23 Law J. Rep. (n.s.) Chanc. 282. If a trust is existing, and an estate is to be admi- nistered in this court, a claim against that estate will not be barred by the Statute of Limitations, espe- cially if litigation in other courts has prevented the efiectual prosecution of the claim. Playfair v. Cooper, 23 Law J. Rep. (n.s.) Chanc. 341. A testatrix, in execution of a power in her mar- riage settlement, directed the trustees of her will to raise 100/. a year out of the income, and pay it to R P for life, and to pay the residue to F C for life. The income was insufficient to pay the whole an- nuity: — Held, that the arrears were a charge upon the income and corpus of the settled estate, and that the administratrix was entitled to payment. Ibid. A testatrix, by her will, dated in 1832, gave to trustees the sum of 20/. per annum, Bank long an- LEGACY; (W) Amnuitt. 437 nuities, ot " an amount or yearly sum equal thereto," upon truat to pay the same to A B for her life, and after her decease to transfer the principal stock or money, which should be set apart for the payment of the said yearly sum unto A B's children who should be living at A B's decease. At the date of her will the testatrix had 502. long annuities, and she continued to possess the same until her death. These long annuities being terminable in 1860, it was held that the testatrix intended to give a permanent an- nuity of 202., and that the trustees were bound on behalf of the children of A B to take the course most beneficial for them, and to have a permanent fund invested, producing 20/. per annum. Haggar V. Neatly, 23 Law J. Eep. (n.b.) Chanc, 465; Kay, 379. The gift of an annuity "from my funded pro- perty," — Held, to he a gift from income, and an investment was directed out of the residuary estate to make up the deficiency. Attwater v. Atl/waier, 23 Law J. Rep. (n.s.) Chanc. 692; 18 Beav. 330. A gift of 60/. a year out of 4/. per cent, stock, whicli was not to be sold till after the death of the annuitant, &c., — Held, to be a gift of a perpetual annuity. Pawson v. Pcmson, 23 Law J. Eep. (n.8.) Chanc. 954; 19 Beav. 146. A testator, by his will, gave all his real and per- sonal estate to trustees, upon trust to pay his widow an annuity of 1,200/. for her life, and after her death to divide the said sum of 1,200/. per annum between his children who should be then living, share and share alike: — Held, that the annuity of 1,200/. a year was not a perpetual annuity, but was limited to th e lives of the widow and children. Lett v. Ran- dall, 24 Law J. Eep. (h.b.) Chanc. 708; 3 Sm. & G. 83. A testatrix being entitled to an annuity during the life of B, effected an assurance on B"s life, and be- queathed the annuity to C : — Held, that the policy did not pass. HamMtony. Baldiem, 16 Beav. 232. Bequest in 1829 of 40/. a year to each of the seven children now living of J S Y. He had nine children then living: — Held, that they all took. Teaia v. Yeati, 16 Beav. 170. A testator directed the investment of a suflScient sum " to raise and pay an annuity or clear yearly sum of 100/.," which was given to parties in succes- sion : — Held, that it was not free from legacy duty. Pridie v. Field, 19 Beav. 497. Distinction between such a gift and a direct be- quest of a " clear annuity." Ibid. A life estate and a life annuity charged on the same estate, and devised to the same person : — Held, not to have merged. Byam v. Sutton, 19 Beav. 556. A testatrix devised to the defendant, a married woman, a reversionary life interest in an estate, and she bequeathed to the defendant for life, and for her separate use, an annuity charged on the same estate, and to commence immediately. She also bequeathed other annuities similarly charged. At the death of the testatrix, the prior limitation having failed, the defendant became tenant for life in possession. The defendant afterwards became discovert, and the pro- perty having become insufHcient to pay all the an- nuities, — Held, that a merger of the defendant's annuity in her life estate by operation of law would not be presumed. Ibid. The corpus of an estate charged with annuities was held liable to their payment. Ibid. The testator gave his real and personal estate on trust to raise such a sum of money as, when invested, the dividends would realize the clear annual sum of 200/. a year, and to pay such dividends to his widow for life, and afterwards to stand possessed of the principal or trust monies in trust for his brothers and sisters. There was a gift to the same persons of the residue, " after raising thereout the money sufficient to realize the annuity to his wife." On a deficiency of assets, Held, that the corpus was liable to make good the widow's annuity. In re Balcer, Baker v. Baker, 20 Beav. 648. The testator directed the investment in the funds of sufficient to produce 40/. a year, and the dividends to be paid to his wife for life ; and he bequeath«d his general residue, and the fund invested (after her death), to other persons. An investment was made in five per cents, which were reduced, and produced less than 40/. : — Held, that the widow was entitled to have the deficiency made good out of the corpus of the fund. Mills v. Drewitt, 20 Beav. 632. The widow had received less than 40/. for thirty- three years : — Held, that there had been no laches or acquiescence, the question now relating to the respective rights of parties to an existing trust fund. Ibid. A testator entitled to freehold estates and to a leasehold for years, determinable on lives, charged by his will an annuity on both rateably, and directed that in the event of his interest in the leasehold expiring before the annuity, the proportion of the annuity chargeable on the leasehold should thence- forth issue out of designated freehold estate. Sub- ject to the annuity, he devised and bequeathed the freeholds and leasehold to different persons. The legatee of the leasehold surrendered the lease, and took a new one, determinable on different lives ; — Held, that the new lease was not for the purpose of the annuity substituted for the old, but that on the death of the last cestui que vie named in the surrendered lease, the leasehold ceased to be charged with the annuity, and that the part apportioned to the leasehold became charged on the designated freehold. Kempe v. Eeimpe, 6 De Gex, M. & G. 346. A testator gave an annuity and declared that it should be yearly issuing out of his lands and here- ditaments, and empowered his executors at their discretion out of his personal estate, or his real estate, to appropriate sufficient monies to answer the annuity, declaring that thereupon the hereditaments should be discharged ; and he proceeded to devise certain parts of his freehold and leasehold property specifically, and to devise the residue of both (but as to the whole real estate, charged in aid of his per- sonal estate with his pecuniary legacies), and if the funeral and testamentary expenses, debts and pecu- niary legacies, and any money appropriated to answer the annuity should absorb the whole resi- duary real and personal estate, the deficiency should be made good out of the specific devises, and that the, whole of the annuity, or so much thereof as should not be provided for by any such appropri- ation, should be charged upon the specific devises rateably. The executors did not appropriate any fund to answer the annuity: — Held, that it was 438 LEGACY. primarily payable out of the specifically devised estates. WoodJiead v. Turner, 4 De Gex & S. 429. A testator after bequeathing two pecuniary lega- cies, bequeathed three "clear" annuities for the lives of the annuitants. He then bequeathed his residuary eslate in trust to pay a clear annuity of 1,000;. to his widow, and upon trust, after payment of the four annuities, to pay the residue of the in- come, during the life of the widow, to A. The capital of the residue after the widow's death was to be held as to 5,0002. upon such trusts as the widow should appoint, and subject to her appointment the B,OOUl. was to be held in trust for B for life, and after her death to fall into the general residue; and subject to sufh disposition aa aforesaid, and as to the residue of the testator's estate and effects after the widow's death, and subject as to the 5,000^, and the interest thereof as aforesaid, upon trust to pay certain lega- cies amounting to l,000i. with an ultimate residuary gift to E. And there was a direction that, upon the deaths of the several annuitants, the funds on which the annuities were secured should follow the ultimate destination of the residue: — Held, — 1. That the two first-mentioned pecuniary legacies, and three annui- ties, had priority over every other gift. 2. That the annuities were given free of legacy duty. 3. That the annuities were charged on the capital of the residue, but that A was entitled to retain the surplus income paid to her in one year, and to re- ceive the surplus for another, although the income was in the subsequent years insufficient to answer the annuities. 4. That on the death of an annuitant in the lifetime of the widow, the ultimate residuary legatee did not become at once entitled to the fund eet apart to answer the annuity. 5. That after the widow's death the 5,000/. would have no priority over the other reversionary legacies. 6, That the reversionary legatees were not entitled to have any surplus income during the widow's life set apart to secure payment of their legacies. JJaynes v. Haynes, 3 De Gex, M. & G. .5S0. A testator bequeathed so much of his personal estate as when invested in stock would produce 1 25/. a year to trustees upon trust to pay the divi- dends of such stock to A for life, with a direction that the capital stock should at A's death fall into the residue of his (the testator's) estate, and a pro- vision that if the stock should before the trusts were fully performed, be paid off or reduced, by which any loss or deficiency might arise, the persons re- spectively interested therein should bear and sustain such loss or deficiency out of their respective inter- ests, upon their becoming entitled thereto. The dividends on the stock were reduced during the life of A : — Held, that A was not entitled to have the reduced dividends made up to 125/. a year by sale of a portion of the capital of the stock. Bagne v. Dwmergue, 10 Hare, 462. Amongst several gifts of sums of 300/. each to the grand-nephews and nieces of the testator, some of which were to be paid at different ages, and others to be sunk in annuities for the lives of the respective legatees, occurred two bequests as follows: — "Joseph Walker, 300/. annuity for life ; Martha , 300/., an annuity for life": — Held, that Joseph and Mar- tha were each entitled to annuities of 300/. for life. Walker v. Tipping, 9 Hare, 800. A testator gave an annuity of 250/. to his widow. and directed that a competent part of his money should be invested to the intent that the widow might receive the annuity "out of the interest, dividends, proceeds and produce" thereof; and he gave the monies to secure, but subject to, the annuity, and his residuary personal estate to the plaintiffs : — Held, that the annuity was a charge on the capital, and that the assets being deficient, the executors had properly paid the annuity out of the capital. Mimer v. Baldwin, 1 Sm. & G. 522. (X) Reoovekt op Legacy. A testator bequeathed his property to C M and J. Wilson, their executors, &c., in trust for certain purposes, and the residue of his property he be- queathed to the same parties, upon trust, as to one- sixth part, to pay the same equally between the four children of his sister. He then appointed C M and J. Wilson executors and trustees of his frill. He afterwards added a codicil, whereby he appointed S E an executor of his will, in the room of C M deceased, and to act in conjunction with the other "executor in his said will." The plaintiff's late wife was one of the four children of the testator's sister ; and the plaintiff as her administrator brought an action in the county court, to recover from the defendant, J, Wilson, " a fourth part of the sixth share of the residue," and the action in the county court was described in those terms in the summons and in the particulars of demand. A motion for a prohibition after sentence having been made on the ground that the bequest amounted to a trust and not to a legacy, and, therefore, was not within the juris- diction of the county court, — Held, first, that this was a legacy to the plaintiff within the meaning of the act, and not a legacy to the executors in trust ; and, therefore, that the county court Judge had jurisdiction. Pears v. Wilson, 20 Law J. Rep. (n.s,) Exch. 381 ; 6 Exch. Rep. 833; 2 L. M. & P. P.O. 515. The Wills Act (1 Vict. c. 26.) does not enable a testator to bequeath a chose in action so as to pass the right of suing to the legatee. Bishop v. Curtis, 21 Law J. Rep. (n.s.) Q.B. 391. (Y) Eights and Liabilities oe the Legatee. A testatrix bequeathed leasehold property to R A absolutely during the residue of her term, subject to the payment of the rent and performance of the covenants reserved and contained in the lease ; and, as to her residuary estate, subject to the payment of her debts, &c., the gave the same to J B absolutely: — Held, upon appeal, reversing the decree below, that R A took the leaseholds cum onere, namely, with the liability to make good the dilapidations that had accrued during the life of the testatrix ; and that R A should indemnify the executors against liability under the covenant to repair before he was let into possession. Hichling v. Boyer, 21 Law J. Rep. (n.s.) Chanc. 388; 3 Mac. & G. 635; 1 De Gex, M. & G. 762. A testator gave to his wife during her life the interest and annual income arising from all his shares in the P and Company. A dividend was declared some days before the testator's death, but the war- rants were not issued nor was the dividend payable until after his death. After the testator's death, also, a call was made in respect of some of the shares. LEGACY. 439 By the company's deed, it was provided that share- holders should hot receive any dividend after they ceased to be proprietors, but that the dividend should remain in suspense until some person should have become proprietor of the shares : — Held, that the calls were payable out of the testator's general per- sonal estate, and not by the legatee for life. Olive V. Olive, 23 Law J. Rep. (n.s.) Chanc. 981; Kay, 600. Held, also, that the legatee for life was entitled to the dividend. Ibid. Where the interest of a testator in the subject- matter which he professes to bequeath is comfilete, the future calls fall on the legatee and not on the general personal estate ; but when further payments are required to make perfect that interest, the gene- ral personal estate is applicable fur that purpose. Armstrong v. Burnet, 24 Law J. Rep. (n.s.) Chanc. 473 ; 20 Beav. 424. A testator bequeathed shares in a banking com- pany, upon which all calls had been paid, and which, at his decease, was complete and carrying on business j five years after his decease a further call was required : — Held, that the legatees must pay the call, and that it was not a charge upon the general personal estate of the testator. Ibid. (Z) Legacy Duty. [See 16 & 17 Vict. c. 51.] Prior to the alteration of the law by Mr. Glad- stone's Act, legacy duty was not chargeable upon real estate except where its conversion into personalty took place under some imperative trust or direction to that effect. Hence, where the conversion was a thing done at discretion, for the convenience or benefit of the parties, the claim of the Crown did not arise. In sucii cases the words " to pay " did not necessarily denote conversion. They might be taken for " to transfer." Tfie Achocate General v. Smith, 1 Macq. H.L. Cas. 760. The case In re Eeans, before Lord Chief Baron Lyndhurst, held by Lord St. Leonards not to have been overruled either by Attorney General v. Simcox or by Attorney General v. Mamgles. Ibid. An officer in Her Majesty's army serving in the East Indies died there intestate, leaving the whole of his property, except 921. due to him from the War Office, actually situate there. His widow took out letters of administration in Bombay, paid the debts, funeral expenses, &c. and invested the residue there for the benefit of herself and child as next-of-kin. A year and a half afterwards she returned to England, and took out letters of administration in this country for the purpose of recovering the sum of 921. : — Held, that as the intestate was domiciled in this country, the widow was bound to account for and pay legacy duty on the whole of the property in the East Indies. Attorney Geiieral v. Napier, 20 Law J. Rep. (h.s.) Exch. 173; 6 Exch. Rep. 217. A B, and C his eldest son and heir apparent, by indenture dated the 9th of January 1800, joined in conveying certain lands and hereditaments of A B to trustees for a term of 100 years, subject to certain trusts during the joint lives of A B, and C, and with po.wer of revocation, and with divers remainders over. By indenture of the 18th of May 1814 reciting (inter alia) that A B was not possessed of sufficient personal estate to pay the debta he might owe and the legacies he might bequeath at his death, without the sale of his family pictures, &c., A B, and C, after revoking the trusts of the deed of the 9th of Januaiy 1800, appointed that the said lands, &c. should be held by certain trustees, in trust, to sell within six months after the death of A B so much as would raise a sum necessary for the payment of his debts and legacies, not exceeding 50,000^., the same to be paid to his executors and applied in aid of his per- sonal estate, (only certain portions of which personal estate were by deed-poll of the 18th of May 1814 directed to be used prior to such S0,000i. being raised) with a further trust to convey what should not be sold to C for life, with certain remainders and limitations, and in default of such taking effect with remainder as to one undivided third to Lady S and S, a daughter of A B for life, with remainders to her sons in tail, and as to the two other undivided thirds to D and E, two other daughters of A B, severallj', with divers remainders over. By will, dated the 25th of June 1814, and several subsequent codicils, A Bappointed M and other executors, and bequeathed to them two sums of 10,000i. in trust for such pur- poses as notwithstanding her coverture Lady S and S should appoint, and in default of appointment to her separate use. C died in the lifetime of A B without issue, and A B himself died the 2Sth of December 1824 without altering his said will and codicils, and leaving Lady S and S, D and E respectively married and surviving. The personal estate of A B was in- sufficient for the payment of his debts and legacies without part of the 50,000/. being raised. By virtue of common recoveries the respective estates tail of the sons of Lady S and S, C, D, and E were barred, and by deed dated the 11th of .July 1826, between all necessary parties, it was-agreed that a partition of the estates mentioned in the deed of the 18th of May 1814 should tij(ke place. The partition was accord- ingly effected Ijy deed of the 21st of July 1826, and by indenture of the 20th of September 1826 one un- divided third part was settled to such uses as Lady S and S, her husband and her eldest son ,1 F, &c. or the survivor of them should appoint. By deed of January 1827 between Lady S and S, D and E,and their respective husbands and other necessary parties, after reciting that a partition had taken place and certain lands, &c. were allotted to Lady S and S; that the debts and legacies had been paid, except the two sums of 10,000i., which were raiseable by sale of so much of the estate as might be required, but that the parties had agreed that instead of a sale taking place each undivided third part should be charged with one third of such legacies; that certain sums had been paid to the executors of A B in part satisfaction of two of the respective third parts, it was witnessed that certain lands specified in a schedule annexed to the deed marked A were conveyed to the use of the executors of the will of A B for a term of 1,000 years, and subject thereto to the uses declared by the indenture of the 20th of September 1826, upon trust to raise by mortgage or sale thesum of 14,166/. 1 3s. id., being the amount left unpaid of the two legacies of 10,000/. to Lady S and S. By deed, dated the 6th of February 1827, Lady S and S appointed the sum of 5,833/. 65. 8d., which had been received by the executors as above mentioned, to her husband, and also the residue in default of further appointment, and died on the 6th of October 1834, without having 440 LEGACY; (Z) Legacy Duty. made any such appointment, leaving her husband her surviving; but prior to her death the 14,166/. waa by further payments reduced to 11,452/. 5s. Sd. By indenture, dated the 12th of August 1836, made between Lord S and S, and T F his eldest son, the lands, &c. comprised in the said schedule A, were conveyed subject to the said term of 1,000 years for securing the said sum of 11,452/. 5s. 3d. to the use of the said Lord S and S and T F, and the survivor of them.' On the 13lh of November 1844 Lord S and S died, whereupon the said son T F became seised of the lands, &c. comprised in the deed of the 12th of August 1836, and was entitled as residuary legatee under the will of his father to the said residue of the two legacies of 10,000/. By deed of the 10th of July 1845, made between the surviving executors of A B and T F (then become Lord S and S) the said term created by the deed of the 6th of .Tanuary 1827 was surrendered and became merged in the inherit- ance, and Lord T F accepted the said merger in full satisfaction and discharge of the legacies of 10,000/. and 10,000/., and the said residue was thereby satisfied and discharged : — Held, that the legacy duty was payable by the executors of A B upon the whole 20,000/., as so much of the 50,000/. as was required ■was personalty, and the transaction by which the term was merged amounted to a payment of the resi- due of the legacies. Attorney General v. Metcalfe, 20 Law J. Rep. (n.s.) Exch. 329; 6 Exch. Rep. 26. A testator made his will in these terms: — "I give and bequeath all my property of whatsoever descrip- tion to my wife for the maintenance of herself and our children," naming them, and making her sole executrix: — Held, that a trust was thereby consti- tuted for the benefit of the children, and that the executrix was bound to account. In re Harris, 21 Law J. Rep. (u.s.) Exch. 92; 7 Exch. Rep. 344. The first Lord H, by his will, directed the pur- chase of estates in Suffolk to be made with the pro- ceeds of estates in Essex. The wiU contained a clause enabling the tenant for life, who should be entitled to the rents and profits of the estates, to direct them to be sold and a deed of settlement to be made of them, and that there should be inserted therein a power that the tenant for life should be entitled to the rents and should have power to charge such estates with an annual sum, not exceed- ing one-third part of the annual value thereof, for the benefit of any woman whom he might marry. The first Lord H. was succeeded by his son the second Lord H, who, by his will, charged the Suffolk estates with an annuity for the benefit of his wife during her life ; the said sum to be in the nature of and in full for her jointure, and to be in bar, lieu, or satisfaction of and for her dower or thirds at common law, &c. The defendant was in possession of the estates, and was heir of the deceased Lord H. No deed of settlement was ever executed: Held, that the defendant was liable to pay legacy duty in respect of the value of the annuity, as the grant of it could not be considered as a purchase of Lady H's right to dower, but was a gift of a legacy in execution of the power in the will of the first Lord H, though upon a condition imposed by the second Lord H. Benrdker v. Attorney General (in error), 22 Law J. Rep. (n.8.) Exch. 41; 8 Exch. Rep. 257: in the Court below, Attorney General v. Henniker, 21 Law J. Rep. (n.s.) Exch. 293; 7 Exch. Eep. 331, S H by will, after directing payment of his debts and legacies out of his personal estate, devised his real estate to his executors as trustees, upon trust by mortgage or sale, or out of the rents and profits, or by other means, to pay the said debts and legacies, so far as his personal estate should not extend, and on further trust, to pay yearly two annuities of 300/. each to his daughters H H and L H. The will also provided for raising certain portions for the children of his said daughters, according as they should appoint, and that if the sums so raised should not be appointed as portions pursuant to the will, then they should fell into and be considered as part of the residue of the testator's real estate. The will then directed that, subject to the trusts aforesaid, the trustees should stand seised of the real estates in trust for G H for life, with remainders over; but that, notwithstanding any of the said trusts, it should be lawful for the trustees, with the consent of 6 H, during his life or after his death, with the consent of the persons beneficially entitled in reversion or remainder, to sell the whole or part of the said real estate, and invest the proceeds to pay the said annui- ties. Part of the real estate was sold under the will to pay debts and legacies, and the rents of the resi- due being found insufficient to pay the annuities, a bill was filed in the Court of Chancery by 6 H and his children, who were infants, against the executors and the two daughters, H H and L H, praying for a sale of the residue, and stating that the trustees had refused to sell. Under a decree of the Court in this suit, the real estate was sold, and the proceeds in- vested in Bank annuities, and an annuity account of 20,000/. Bank annuities was opened, and out of the interest the two annm'ties of 300/. were paid, and the interest of the surplus was paid to G H during his life. By the deaths of G H, L H and H H the children of G H became entitled to the 20,000/. Bank annuities. On a case stated as to whether legacy duty was payable, — Held, that if the sale was ordered by the Court, under their general power of ordering sales of real estate, to secure the payment of an annuity charged thereon, the legacy duty waa not payable; but that if the Court acted on the clause in the testator's will, and compelled the trus- tees to execute the discretionary power given to them, the legacy duty was payable. Sobson v. Neale. 22 Law J. Rep. (n.s.) Exch. 175; 8 Exch. Eep. 368. J T mortgaged his real estates, covenanting in the usual way to pay the mortgage monies, and at his death devised all his real estate to his brother B T, whom he also appointed Sxecutor. His personal estate was insuflScient to pay his simple contract debts. B T entered into possession of the real estates, but did not pay off the mortgages, although he kept down the interest. By his will B T gave all his real and personal estate to his two sons J T and BT, who paid off the mortgages out of his personal estate: — Held, that legacy duty was payable in respect of the amount so applied. In re Taylor, 22 Law J. Rep. (n s.) Exch. 211; 8 Exch. Rep. 384. A testator, after devising his real estate to trustees upon trust for certain persons in tail male, empow- ered his trustees at any time after his death to sell or exchange such real estate, and to invest the monies arising from such sale in the purchase of other real estate to be settled and conveyed upon LEGACY; (Z) Legacy Dutt. 441 the same trusts. The will also empowered the trustees, until such purchases were made, to invest the produce of the sale in the funds, or on mortgage of real estate. The trustees having sold part of the estate under this power, invested the produce in the funds : Held, that legacy duty was not payable in respect of the money so invested. Beale v. Knigm and Mules v. Jeimmgs, 22 Law J. Rep. (N.s.) Exch. 358; 8 Exch. Rep. 830. In a Chancery suit, filed by the trustees for the establishment and performance of a will containing similar clauses, a decree was made accordingly, and one of the trustees having prayed a sale of part of the real estate it was referred to the Master, who reported favourably, and although there were no debts, an order for sale was made. The produce of the sale was paid into the Bank of England to the credit of the cause, and subsequently laid out in consols, and the interest paid to the tenant for life. On his death a decree was made for transferring the stock to the party absolutely entitled to the real estate according to the terms of the will : — Held, in this case also, that legacy duty did not attach. Ibid. A testator, by his will, directed his executors to assign the residue of his personal estate to the trus- tees of the settlement of his niece Mrs. A, the wife of W A., on trust out of the annual income to pay to het during the joint lives of herself and husband an annuity of 2,000/. for her separate use, and that they should stand possessed of the residue upon such trusts and for such persons, interests, &c., as were expressed in a deed of settlement of the said Mrs. A. The deed of settlement provided that the trustees should stand possessed of the settled property upon trust, during the joint lives of the said W A and his intended wife Mrs. A. to pay her an annuity of SOO/., upon trust to pay the residue or surplus of the dividends and annual produce of the stocks, funds, &c. unto W A, and authorized him to receive the same during his life, and after the decease of either of them, to pay the dividends to the survivor, and authorized him, her or them to receive the same during the life of the survivor. The 36 Geo. 3, c. 52, imposing duties on legacies, by section 8. en- acts that the value of any legacy given by way of annuity for life or for years determinable on any life or for years or other period of time shall be calcu- lated, and the duty charged according to the tables in the schedule: Held, that the duty was to be charged on the value of 2,000?. a year to Mrs. A. for the joint lives of herself and her husband W A, and on the value of the residue of the income for the single life of W A. Attorney Qeneral v. Wyn- ford, 23 Law J. Rep. (h.s.) Exch. 223; 9 Exch. Rep. 746. A testator having large sums of stock invested in the joint names of himself and his wife made his will, by which he gave several specific legacies to his wife, to whom he also devised certain real estates. He also made several devises and bequests of real and personal estate to trustees, upon trust for his wife for life, and after her decease for the benefit of other persons ; he also gave a legacy of 10,0002. to his daughter for life, with remainder to her children, and he appointed his wife sole executrix. Upon the decease of the testator his personal estate was found wholly insufficient to pay several specialty debts and DioEST, 1850—1865. the legacies given by his will, and under a deed executed by his wife reciting these facts, she trans- ferred 36,0002., and 1 0,5002. stock, part of the funds which had been invested in the joint names of herself and her husband, to the trustees of his will, for the purpose of being applied to satisfy the debts, among others the legacy of 10,0002. The Commissioners of Stamps and Taxes claimed legacy duty in respect of this payment; but upon a petition by the execu- tors of the testator and his wife, who had since died, to obtain the opinion of the Court, — Held, that no claim for legacy duty had arisen under the 36 Geo. 3. c. 52, or the 45 Geo. 3. c. 28, and that none was payable. Lawrie v. Chttton, 21 Law J. Rep. (n.s.) Chanc. 226; 15 Beav. 131. A testator gave real and personal estate, subject to one " clear" yearly rent-charge or annuity of 1002. a year to S G: — Held, that it was to be paid without any deduction for legacy duty, and that the legacy duty was to be paid out of the real estate, as the personal estate of the testator was exhausted. Bailey v. Boult, 21 Law J. Rep. (n.s.) Chanc. 277; 14 Beav. 595. A testator bequeathed the residue of his personal estate to his executors, in trust for his wife for life, and, after her decease, for his nephews and nieces, whereby legacy duty would be payable at the death of the wife, — Held, that under the 36 Geo. 3. c. 52. s. 1 3. the executrix of the surviving executor might, during, the life of the widow, transfer the trust fund to new trustees of the will appointed by the Court. In re Jones's Tnist, 21 Law J. Rep. (n.s.) Chanc. 566. A testator devised certain freehold estates to trustees, to the use of his son for life, and then to his son's children. The will contained a power to his son to charge the estates with a jointure for any wife he might marry, such jointure to be in bar of dower. The son executed the power, and charged the estates with the jointure. He died in 1841, and a suit was afterwards instituted to administer his estate. The Attorney General presented a petition, praying that the receiver appointed in the suit might be ordered to pay the legacy duty in respect of the jointure, at the rate of 102. per cent. : — Held, that the jointure was to be treated as a legacy given by the original testator, and that legacy duty was payable at the rate of 102. per cent., the son's wife being a stranger in blood to the. testator : and the petition was granted, with costs. Sweeting v. Sweeting, 22 Law J. Rep. Xn-S.) Chanc. 441; 1 Drew. 331. A testatrix by her will gave the whole of her pro- perty to her sister, but the will being improperly witnessed, the gift was void. Before her death the testatrix had transferred a sum of stock in the Bank of England into ithe names of herself and her sister, in order, as she declared, to save her sister the pay- ment of legacy duty: — Held, that the stock so transferred formed no part of the property of the testatrix, but that it belonged to her sister as the sur- vivor of the two. Deacon v. Colguhoun, 23 Law J. Rep. (n.s.) Chanc. 16;' 2 Drew? 21. Legacy duty on income arising from a residue directed to be laid out in land must be paid by the tenant for life entitled to such income, although the will contained a direction for payment of the duty on all annuities and legacies out of the general personal estate. Lord Londeshorough v. Somerville, 3L 442 LEGACY— LIBEL. 23 Law J. Rep. (n.s.) Chanc. 646; 19 Beav. 295. The Legacy Duty Acts are to be construed strictly and in fiivour of the subject. Hobson v. Neale, 17 Beav. 178. A will empowered the trustees, with the consent of A, to sell the real estate, and invest a sufficient sum to answer two annuities. The rents being deficient to pay the annuities, the Court ordered a sale out of the produce, and 20,0001 consols were purchased to provide for the annuities. Legacy duty being claimed on the corpus of the consols : Held, that the validity of this claim depended on whether the sale had taken place under the general jurisdiction of this Court, or under the power in the will ; and the Court, having held the former, deter- mined that no legacy duty was payable. Ibid. The Attorney General attended in a cause, to which he was not a party, to support a claim for legacy duty upon a fund in court. The claim failed : — Held, that the Crown was not entitled to costs. Ibid. LIBEL. [See Slander.] (A) PCBLICATIOir. (a) Generally. (i) In Newspapers. (c) Heporfs of Judicial Proceedings, (d) Privileged Communications. (e) Justification of. (B) Action for. (a) Pleadings. (5) Evidence of AufhorsMp. (C) Scire Facias on Eeoogsizances. (D) Ibpormation for. (A) Publication. (a) GeneraUy. The defendant had lodged at the plaintilF's house, and on leaving missed a memorandum book and other articles, whereupon he wrote to the plaintiff's wife a letter in which he accused the plaintiff of having taken them, and threatened to expose him if he did not return them ; the jury found that the letter was a libel, but that there was no malice in fact : Held, first, that sending the letter to the wife was a publication; and, secondly, that it was not justified by the occasion. Wenmam, v. Ash, 22 Law J. Kep. (N.S.) C.P. 190; 13 Com. B. Rep. 836. (i) In Newspapers. In an action for libel, the defendant pleaded the general issue and also a plea, under the 6 & 7 Vict. c. 96, denying actual malice, and stating an apology. On the trial, the plaintiff', in order to prove malice, tendered in evidence other publications of the defen- dant, going back above six years before the publica- tion complained of: — Held, that these publications were admissible in evidence. Bowett v. Long, 3 H.L. Cas. 395. If J H and M Y be registered at the stamp office as " the sole proprietors " of a newspaper, " that is to say, the said J H as legal owner as mortgagee and M Y as owner of the equity of redemption," this is sufficient to fix J H as a proprietor of the newspaper in an action for a libel contained in it. Brwnswich v. Banner, 3 Car. & K. 10. (c) Reports of Judicial Proceedings. By the law of England a fair account of what takes place in a court of justice may be published, but the reporter ought not to mix up with it com- ments of his own. And if the report contains only a fair account of what takes place in a court of jus- tice, the person who publishes it has only to prove that fact under the general issue, and he is entitled to entire immunity. It is not essential that every word of the evidence, of the speeches, and of what was said by the Judge should be inserted, if the report is substantially a fair and correct report of what took place in a court of justice. Andrews v. ChapwAm, 3 Car. & K. 286. (d) Primleged Oommwiications. [See Wenmam v. Ash, ante, (o).] A schoolmaster of a national school belonging to a parish having been dismissed, proposed to setup a school on his own account in the same parish. The rector of the parish thereupon printed a letter ad- dressed to his parishioners. It professed to contain a few words of warning against the projected new school, and stated as the cause of the schoolmaster's dismissal his refusal to teach the Sunday as well as the national school, and objected to his setting up an opposition school in the parish. Then followed the observations which the schoolmaster complained of as libellous : — " The very attempt betrays a spirit of opposition to authority," &c. " No rightly- disposed Christian who receives in simple faith the teachings of inspiration, ' Obey them who have the rule over you and submit yourselves,' can expect God's blessing to rest upon such an undertaking, under the circumstances. I conceive it to be my duty to warn all my parishioners against affording any countenance whatever to the projected new school, either in the case of the richer by subscrip- tions or of the poor by sending their children to it for instruction. It will be to all intents and pur- poses a schismatical school, for its tendency will be to produce disunion and schism in a matter which of all others requires union, the education of the poor. Those who aid and abet him in any way will be partakers with him in his evil deeds. Mark them which cause divisions and offences, and avoid them." On the trial of the action for libel, it was shewn that the defendant, the rector, had given one copy to a parishioner and another to a person in the adjoining parish, who had sent her children to the plaintiff's school : — Held, that the letter was not a privileged communication; that even if it were, there was evi- dence from the facts proved of express malice for the consideration of the jury, and that the jury were at liberty to look at the letter and consider its ex- pressions with a view to the question of malice. Qilpm V. Fowler (in error), 23 Law J. Rep. (n.s.) Exch. 162; 9 Exch. Rep. 615. (e) Jmtification of. [See post, (D).] In an action for libel, it is no justification that the LIBEL. 443 libellous matter was preTiously published by a third person, and that the defendant, at the time of his publication, disclosed the name of that person, and believed all the statements contained in the libel to be true. Tidman t. Ainslie, 10 Exch. Bep. 63. (B) Action foe. (a) Pleadings. [See Stat. 15 & 16 Vict. c. 76. s. 61 j and schedule (B) Nos. 32, 33.] In an action for a libel imputing to the plaintiff the commission of a crime under aggravated circum- stances, it is necessary to justify the aggravating portion as well as the substantial charge of crime. Silshwm V. Blachwood, 20 Law J. Rep. (if.s.) C.P. 187; 11 Com. B. Rep. 111. So, where the declaration set out a libel in which it was alleged that the plaintiff was tried for murder, and that " it was understood that the counsel for the prosecution were in possession of a damning piece of evidence, viz. that he had spent nearly the whole of the night preceding the duel in practising pistol- firing"; and the plea stated that the plaintiff had committed murder, but did not shew that he had practised pistol-firing the night before, it was held that the justification was insufficient. Ibid. SenibU — that a replication to such a plea by way of estoppel, stating that the plaintiff was tried and acquitted, is not good. Ibid. Action for a libel. Plea justifying, as true, part of the libel, which comprised several libellous alle- gations. Replication de mjti/rid. On the trial, the Judge asked the jury to find separately as to the truth of the several allegations justified. The jury found that some of the allegations were not true, and that others, forming an important part of the libel, were true. A general verdict was entered for the plaintiff. A Judge made an order that the Master should not allow plaintiff the costs of the witnesses called only to disprove that part of the plea which was found to be true. On a motion to rescind this order, — Held, by Lord Campbell, C.J., Patteson, J. and Coleridge, J., that the order was improper, the issue being indivisible; Erie, J. dis- eentiente. Biddulph v. Chamberlayne, 17 Com. B. Rep. 351. (J) Evidence of AwtkoraMp. For the purpose of proving a document in which a word is spelt in a particular manner, ex. gr. Titchborne for Tichborne, to be in the handwriting of a party, other documents not in evidence in the cause, but proved to be in the handwriting of the party, and in which the word is similarly spelt, are admissible in evidence. Brookes v. Tichborne, 20 Law J. Rep. (U.S.) Exch. 69; 5 Exch. Bep. 929. (C) Scire Facias on Recognizances. Where writs of execution have been sued out without effect, on a judgment in an action for libel against the publisher of a newspaper— gwcere, whether a scire facials will be issued on the recog- nizances of the sureties taken under 60 Geo. 3. c. 9. and 1 Will. 4. c. 73. without the fiat of the Attorney General. Ex parte Brvmaviich, in re Lowe, 21 Law J. Rep. (N.S,) Exch. 113; 6 Exch. Rep. 22. Semble—per ParJce, B., that it may be so issued ; hut, per Pollock, C B., Alderson, B. and Piatt, B., that the fiat of the Attorney General is requisite. Ibid. A plaintiff having obtained a verdict, with damages, against a newspaper proprietor, for whom the defen- dants had become sureties for the payment of fines and damages under the 60 Geo. 3. c. 9. s. 8, the Crown, at the instance of the plaintiff, issued a scire facias against the sureties for the recovery of such damages, under the 1 Will. 4. u. 73. s. 3. The plaintiff having subsequently become an outlaw, the defendants pleaded that the scire facias had issued at the instance of and for the benefit of the plaintiff, and not of the Crown. The Crown having de- murred, and having taken no steps to bring on the (Jemurrer for argument, but the plaintiff having obtained a rule for the appointment of a day for the argument, the Court, on the application of the de- fendants, stayed the argument of the demurrer, on the ground that the application for the hearing of the demurrer was made not on the part of the Crown, but for the benefit of the plaintiff, who was an out- law. Regina v. Lowe, 22 Law J. Bep. (n.s.) Exch. 262; 8 Exch. Rep. 697. (D) Information for. [See title Costs in Criminal Cases, (B).] On the trial of an information for a libel contain- ing imputations upon the character of the prosecutor, to which there is a plea justifying the libel as true under the 6 & 7 Vict. c. 96. evidence that the same imputations on the prosecutor had been previously published, is not admissible on the part of the defen- dant Begina v. Newman, 22 Law J. Rep. (n.s.) Q.B. 1S6; 1 E. & B. 288; 1 Dears. C.C. 85; 3 , Car. & K. 252. To a criminal information for a libel containing several distinct charges against the prosecutor, the defendant pleaded not guilty, and also a plea under the 6 & 7 Vict. c. 96. s. 6, alleging the truth of all the matters complained of as libellous, and averring that it was for the public benefit that they should be published. To this plea the prosecutor replied, that the defendant wrongfully published the libel without the cause alleged, and issue was joined on this replication. At the trial, evidence was given by the defendant in support of some only of the matters alleged in the plea of justification, and the jury found that only one of the charges was true, and a general verdict was entered on this issue for the Crown. A new trial being afterwards moved for, on the ground that the verdict was against evidence, it not being suggested that any evidence could be given in support of the charges which had not been attempted to be proved, the Court refused to grant a new trial, as, admitting that the verdict was wrong in respect of some of the charges, the Crown would still be entitled to have the issue found for it on the ground that the whole of the plea of justification was not proved, and that the issue could not be found distributively. Ibid. Where a plea of justification is pleaded to a criminal prosecution under the 6 & 7 Vict. c. 96. B. 6, if the defendant fail in proving the plea, the Court, in pronouncing sentence, is to consider whe- ther his guilt is aggravated or mitigated by the plea and the evidence given to prove or disprove it, and to apportion the punishment accordingly. Ibid. 444 LICENCE— LIGHT. Where a new trial is moved for in a criminal case, it must be moved, or a notice that counsel is prepared to make the motion be given, within the first four days of term. Ibid. LICENCE. [See titles Alb and Beekhotjses — PnBiio Entertainments — Trespass — Tkotbb. Also, Adams v. Andrews, title CnnRCH, (B) Pews.] An auctioneer employed to sell goods on the premises of the proprietor has not such an interest in the goods as will make a licence to enter on the premises irrevocable. Taplm v. Florence, 20 Law J. Rep. (n.b.) C.P. 137; 10 Com. B. Rep. 744. A parol agreement, by which a person is autho- rized to enter on premises cannot malie the licence to enter irrevocable. Ibid. The declaration stated that the plaintiff had been tenant to one B, and during his tenancy had put up certain fixtures; that before the expiration of the tenancy B granted to the plaintiff leave and licence to keep the said fixtures on the premises after the expiration of the tenancy, in order that he might sell them to the incoming tenant, and to enter and recover them if such tenant would not purchase them; that the defendant subsequently became tenant; that he would neither purchase the fixtures nor allow the plaintiff to enter and remove them. The defendant traversed that B granted such licence to the plaintiff. At the trial the plaintiff gave in evidence the follow- ing letter written to him by B's attorney : " Mr. B has no objection to your leaving the fixtures on the premises and making the best terms with the incom- ing tenant" : — Held, that this document, if it gave a licence at all, gave one coupled with an interest in land; and that therefore, not being under seal, it * could not be enforced against the incoming tenant. Ruffey V. Henderson, 21 Law J. Bep. (n.s.) Q.B. 49; 17 Q.B. Rep. 574. Trover will not lie for fixtures which a tenant has left annexed to the freehold after he has quitted possession, with the leave of his landlord, for the purpose of enabling him to make terms as to their purchase by the incoming tenant. Ibid. The following stipulation in a lease not under seal, " All the hedges, trees, thorn bushes, fences, with the lop and top, are reserved to the landlord," is evidence for the landlord under a plea of leave and licence in an action against him by his tenant for entering the close and drawing the trees when cut down over the close. Heviitt v. Isham, 21 Law J. Kep. (n.s.) Exch. 3S; 7 Exch. Rep. 77. LIEN. [See Chilton v. Carrmgton, title Contract, (C) (a) — and title Innkeeper.] On a lease being granted the lessee deposited it with the lessor's solicitors (who acted for the lessor and lessee), together with a bill of exchange, as a security for the costs of preparing the lease, which the lessee was to pay. The lessee afterwards mort. gaged the term, and the defendants (who were his solicitors on that occasion), in order to obtain the lease, paid the bill of costs of the lessor's solicitors and received from them, without any authority of the lessee, the lease and bill of exchange ; — Held, first, that without express contract the defendants acquu-ed no lien on the bill of exchange beyond the amount which they had paid to the lessor's solicitors; second- ly, that evidence of an express contract would not support such a lien without proof that the defendants had explained to their client, the lessee, his rights independently of express contract. Oibson v. May, 4 De Gex, M. & G. 512. LIGHT. [See title Water and WATBRCorBSE.] If the occupier of a house pay rent under a parol agreement to the owner of the adjoining land for the liberty of keeping windows open looking upon the land, the occupier of the house will, after twenty years' enjoyment of the fights, acquire the right to such enjoyment, and the owner of the land cannot after that period obstruct such lights, as the payment of the rent is not an interruption of the enjoyment under the statute 2 & 3 Will. 4. c. 71. s. 3. The Plasterers Co. v. the Parish Clerics Co. (in error), 20 Law J. Rep. (n.s.) Exch. 362; 6 Exch. Bep. 630. Where a party who has a right to the access of light and air through certain ancient windows, makes an alteration in the size of his windows, so as to exceed the limits of his ancient right, he thereby acquires nothing in addition to his former right ; and if the excess cannot be obstructed by his neighbour in the exercise of his lawful rights on his own land, without at the same time obstructing the ancient right, such party must be considered as having by his own act suspended and lost for the time his former right. Eenshaw v. Bean., 21 Law J. Rep. (N.s.) Q.B. 219; 18 Q.B. Rep. 112. Quaere — whether the former right is entirely de- stroyed by the alteration. Ibid. The plaintiff, being the owner of a house in which there were ancient windows, rebuilt it within twenty years, and in so doing raised it a story, putting windows in the new story, and altered the position of and enlarged the lower windows, so that portions of them occupied spaces where there had before been no aperture. The defendant, who occupied a house separated from the plaintiff's by a passage belonging to the plaintiff, also rebuilt and raised his premises within twenty years after the rebuilding of the plain- tiff's house, and thereby obstructed the windows in the upper story of the plaintiff's house, as well as those in the lower stories : — Held, in an action against the defendant for this obstruction that the defendant was justified in so obstructing the new lights, and that the plaintiff could not complain that as a neces- sary consequence the privileged windows were also darkened. Ibid. Held, also, that this defence was well raised, under a traverse of the plaintiff's right to the windows. Ibid. LIMITATIONS, STATUTE OF. 445 LIMITATIONS, STATUTE OF. (A) Whbs available. (o) In general. (6) In Aetume and Suits relating to Jleai Property vmder 3 TRACTS and Contetanoes. (B) Property of. (C) Allowance got op Estate of. (D) Maistenance. ( a ) Application of Property for. (6) Justices'' Orders for Maintenance a/iid Settlement. (1) Under 8 bill due to his employer in cash, and set off the residue against a debt due from himself to the debtor, and afterwards render to his employer an account of the cash, but omit to mention the set-off, eemble, that this would not be a good ground of discharge unless it were done "fraudulently and wilfully." Ibid.^ One servant has no right to beat another; and if an under-servant misconducts himself an upper servant is not justified in striking him, but should inform their master. Regina v. Huntley, 3 Car. & K. 113. A, an under-servant, who had lost his right arm, was beaten by B, an upper servant, for misconduct ; A took out a knife and wounded B : — Held, on a trial for feloniously wounding, that if A did this in self-defence only, he ought to be acquitted ; but if A used more violence than was necessary for that purpose, he ought to be convicted of the misde- meanour of wounding only, under the statute 14 & 15 Vict. c. 19. s. 5. Ibid. (C) Liability op the Master. [See titles Company — Pkincipal and Agent.] {a) For Acts of Servants, Trespass for false imprisonment. The plaintiff having seen an advertisement of an excursion train from Monk's Ferry to Bangor and back, inquired of the clerk at the Monk's Ferry station, which be- longed to the defendants, as to the return of the train, and was informed that he could return that day by the half-past 7 train. The plaintiff then took a ticket, proceeded to Bangor, and returning thence by train at the time appointed arrived at Chester, where the train stopped. The Chester station was used by the defendants and by other railway companies. A railway servant, who had charge of the train, took the plaintiff's ticket, and informing him that he ought not to have gone by that train, demanded 2s. 6d. more. Payment being refused, the railway servant and the superintendent took the plaintiff into custody. The plaintiff's attorney having written to the secretary of the de- fendants' company, asking for compensation, received an answer fiom the secretary, requesting that he might be furnished with the date of the transaction and promising to make inquiries. The secretary also stated verbally that it was an awkward business, that the blame would fall upon the station clerk at the Monk's Ferry station, who gave the plaintiff the false information, and he also offered to return the 2s. Gd, Qacere whether there was evidence for the jury of the railway servant, who made the arrest, being a servant of the defendants. Roe v. the Sirhenhead, Lancashire amd Cheshire Junction Rail. Co., 21 Law J. Rep. (n.s.) Exch. 9 ; 7 Exch. Rep. 3G. But held, that, at all events, there being no proof of the defendants having the power of arresting the plaintiff, there was no evidence of their having ex- pressly or impliedly authorized or ratified the arrest made by the raili^ay servant, and therefore that they were not liable for his tortious act. Ibid. A railway train driven at the rate of forty miles an hour, according to the general directions of the rail- way company to the driver, ran over and killed some sheep which had strayed on the line in conse- quence of the defective fences of the company :— Held, that the train being under the direction and controul of a rational agent, the company were not liable in trespass for the injury; but that the proper form of action was by action on the case, either for permitting the fences to be out of repair, or for directing the servant to drive at such a rate as to interfere with the right of the sheep to be on the line of railway. Shamrod v. the London and North- Western Rail. Co., 20 Law J. Rep. (k.s.) Exch. 185;4Exch. Rep. 580. It was the duty of the defendants' carman after having delivered his masters' goods for the day to return to their house, get the key of the stable, and put up their horse and cart in a mews in an adjoining street. On his return one evening he got the key, but instead of going to the mews, and without the defendants' leave, he drove a fellow servant in an opposite direction, and on his way back injured the plaintiff by his negligent driving : — Held, that the defendants were not liable. Mitchell v. CrasmeUet, 22 Law J. Rep. (n.s.) C.P. 100; 13 Com. B. Rep. 237. The declaration alleged by way of inducement " that the defendants were possessed of a cart and horse which was being driven by their servant," without stating " at the time of the grievance" com- plained of; — Held, an immaterial allegation, and not traversable. Ibid. The declaration also stated, that whilst the plain- tiff was crossing a certain street, the defendants, by their servant, negligently drove and injured the plaintiff: — Held, that the defendants, under not guilty, might shew that the driver was not at that time acting as their servant. Ibid. Qucere — whether, if this defence had not been open to them on the original record, the Judge bad power under the 222nd section of the Common Law Procedure Act to allow a plea, which would raise it, to be added at the trial. Ibid. The plaintiff employed the defendant to remove her goods in his cart, for hire. With the consent of 468 MASTER AND SERVANT; (C) Liability of the Master. the drfendant's carman the plaintiff got on the cart with the goods, and on the way the cart broke down and the plaintiff was seriously injured and her goods broken : — Held, that the plaintiff was not entitled to recover damages for the personal injury. Lygo v. Newlold, 23 Law J. Rep. (n.s.) Exch. 109; 9 £xch. Rep. 302. The plaintiff, a person of full age, contracted with the defendant to carry certain goods for her in his cart. The defendant sent his servant with the cart, and the plaintiff, by the permission of the servant, but without the defendant's authority, rode in the cart. On the way the cart broke down, and the plaintiff was thrown out and severely injured : — Held, that as the defendant had not contracted to carry the plaintiff, and as she had ridden in the cart without his authority, he was not liable for the personal injuries she had sustained. Lyga v. Nembold, 9 Exch. Rep. 302. The defendant, with the consent of the owner of the soil and the surveyor of the district, employed P, who was a labourer, but a person particularly skilled in the construction of drains, to cleanse a drain which ran from the defendant's garden under the public road, and paid P 5s. for the job. The defendant had never before employed P, and did not in any way interfere with or direct him in doing the job : — Held, that the relationship of master and ser- vant was established between the defendant and P, so as to render the defendant liable for an injury occasioned to the plaintiff, whilst riding on the public road, by reason of the negligent manner in which P had left the soil of the road over the drain. Sadler v. Henlock, 24 Law J.Rep. (n.s.) Q.B. 138; 4 E. & B. 570. (ft) For Acts of Contractors. A having contracted with a railway company to construct a branch line, made a sub-contract with F and H to erect a bridge for part of the line. C, who was foreman to F and H, at a salary of 250/. a-year for attention to their general business, con- tracted with F and H for a specific additional sum to erect the necessary scaffolding for the bridge, F and H furnishing the materials, the gas-lights included. One of the poles of the scaffolding rested upon a sleeper which was in the highway and above the level of the pavement. In consequence of the want of sufficient light to shew the obstruction, the plaintiff fell against the sleeper and was injured. Subsequent to the accident additional lights were put at the expense of F and H : — Held, that F and H were not liable, but that the plaintiff's remedy lay against C. Knight v. Pox, 20 Law J. Rep. (n.s.) Exch. 9; 5 Exch. Rep. 721. The defendants were employed to pave a district by A. They contracted with B to pave one of the streets, B's workmen in the course of paving the street left some stones at night in such a position as to constitute a public nuisance, and the plaintiff was injured by falling over these stones. No personal interference of the defendants with, or sanction of the work of laying down the stones was proved : — Held, that the defendants were not liable. Overton v. Freeman, 21 Law J. Rep. (n.s.) C.P. 52; 11 Com. B. Rep. 867. Matthews v. West London Waterworks Co., 3 Campb. 403, overruled. Ibid. The plaintiff's vessel received damage through the negligence and unskilfulness of the master of a steam- tug, which was employed in towing it in the harbour of N, By an act of parliament, which appointed Commissioners of the harbour, it had been provided that it should be lawful for the Commissioners to build or provide steam-tugs for towing vessels into or out of the harbour, and that any person requiring the assistance of a towing vessel should pay to the Commissioners such reasonable compensation as the Commissioners should fix. An arrangement had been entered into between the Commissioners and the proprietors of the steam-tugs which had pre- viously plied in the harbour without being subject to any controul of the Commissioners, that the pro- prietors should employ their boats at a reduced scale of charges, and that the Commissioners should pay them a sum annually, by way of compensation for their making the reduction. The steam-tugs had been by consent of the proprietors placed under the controul of the harbour master, who was authorized by the act to give directions respecting the manage- ment of vessels in the harbour. The plaintiff re- covered judgment for the injury to his vessel against the Commissioners in a county court, on the ground that they were responsible for the negligence and misconduct of the master of the tug: — Held, on appeal, that the judgment ought to be reversed, as on no inferences of fact that could legitimately be drawn from the case, could the judgment of the county court have been arrived at without an error in law. Cuthiertson v. Parsons, 21 Law J. Rep. (N.s.) C.P. 165; 12 Com. B. Rep. 304. If A employs another to do a lawful act, and he in doing it commits a public nuisance, A is not responsible. Aliter — If the act to be done neces- sarily involves the committing a public nuisance. Peachey v. Rowla/nd, 22 Law J. Rep. (n.s.) C.P. 81; 13 Com. B. Rep. 182. The defendants contracted with A to fill in the earth over a drain, which was being made for them across a portion of the highway from their house to the common sewer. A after having filled it in, -left the earth so heaped above the level of the highway as to constitute a public nuisance, whereby the plaintiff in driving along the road sustained personal injury. A few days previous to the accident, and before the work was completed, one of the defendants had seen the earth so heaped over a portion of the drain, but beyond this there was no evidence that either defendant had interfered with or exercised any controul over the work ; — Held, that there was no evidence to go to the jury of the defendants' liability. Ibid. Where a person is employed to do an unlawful act by which an injury is occasioned to a third person, the employer is liable to an action for such injury, though the party employed be a contractor, and the act that of his servants. Ellis v. the Shef- field Oas Consumers' Co., 23 Law J. Rep. (n.s.) Q..S. 42; 2 E. & B. 767. The defendants, a registered joint-stock company, contracted with W for the laying of their main gas- pipes in the streets of Sheffield, having no special powers for that purpose. The servants of W left a heap of earth and stones which had been thrown out of the trenches dug for receiving the pipes in one of the streets, and the plaintiff in passing along the MASTER AND SERVANT; (D) Jurisdiction oe Justices. 469 street tumbled over it and was injured : — Held, that the defendants were liable to an action for the injury occasioned to the plaintiff. Ibid. The defendant engaged a contractor to build a warehouse for him on his, the defendant's, premises. The contractor's workmen made a deep excavation for the foundation of the warehouse on the defen- dant's land, close to the boundary line, between the defendant's and the plaintiff's premises. In conse- quence of the excavation, the plaintiff's yard wall adjoining gave way and fell in; and the workmen, without any directions from the defendant, carried off the materials of the fallen wall. The plaintiff's house "was also injured by the excavation. Neither the house nor the wall had been built ten years, and the plaintiff's premises were not entitled to any sup- port from the defendant's land. In an action in a county court by the plaintiff against the defendant, for wrongfully and negligently excavating to the injury of the plaintiff's premises, and forwrongfuUy carrying away the materials of the wall, the Judge told the jury that as the defendant was in possession of the land adjoining the plaintiflf's, he was answer- able for the wrongful acts of any person allowed by the defendant to go upon his premises for the pur- pose of erecting the warehouse there; and that, therefore, the existence of any contract between the contractor and the defendant was immaterial; and that if the jury should be of opinion that the work- men, whilst they were on the defendant's land by his permission, for the purpose of erecting the ware- house, had, from want of due care, injured the plain- tiff's wall and buildings, and had carried away from the defendant's land materials belonging to the plain- tiff, the defendant was liable for the injuries arising from their acts : — Held, that the direction was wrong; that the action was not maintainable without proof that the plaintiff's premises were entitled to support from the defendant's land; and that the defendant could not be liable, though the acts were done on his premises, the workmen committing them not being his servants, and the acts not being done by his direction. Oayford v. Nicholls, 23 Law J. Rep. (n.s.) Exch. 205; 9 Exch. Eep. 70. (c) For Injwies to Servants. A master is bound to take all reasonable precau- tions to secure the safety of his workmen ; more especially if the work be of a dangerous character and the persons engaged proverbially reckless. Paterson v. Wallace, 1 Macq. H.L. Cas. 748. By the law of England, when the accidental death of a servant is occasioned by the negligence of a fellow servant, the master is not generally held responsible. This does not appear to be the law of Scotland — sed qucere. Ibid. How far the rashness of the deceased is an answer to a claim of reparation on the part of his relatives where negligence is established against the master. Whether the Enghsh and Scotch laws do not differ on this head — qutBre. Ibid. The plaintiff was a guard in the service of the defend^^its, a railway company, and his duty was to attach certain carriages to the engine of a goods train and to despatch the same within a certain time so as to avoid collision with a passenger train. In consequence of the plaintiff not having had another person to assist him, the engine started, threw him upon the rails and a truck passed over his arm. The plaintiff for three months previously had done the same work without any assistance and without making any objection : — Held, in an action by the plaintiff against the defendants for compensation for the injury, that the plaintiff having voluntarily undertaken the duty was not entitled to recover. Skip V. the Eastern Comities Sail. Co., 23 Law J. Rep. (h.s.) Exch. 23; 9 Exch. Eep. 223. (D) Jurisdiction of Justices. (a) Over Servamts ahsenting themselves or neglecting their Worh. A warrant of commitment issued by a Justice, under the statute 4 Geo. 4. c. 34. s. 3, recited that complaint had been made to the Justice that A had contracted to serve with B & C, in their business, for a term of one year, to commence from the 11th of November last, and that the term of his contract being unexpired, the said A did, on the 2nd of June instant, unlawfully misconduct himself in his said service by neglecting and absenting himself from his said master's service without notice or assigning a sufficient reason. The warrant adjudged the com- plaint to be true, and convicted A of the offence, and sentenced him to be imprisoned for a month : — Held, that A was entitled to be discharged from custody, as the warrant was bad for not stating either that the contract was in writing, or that A had entered into the service. In re Askew, 20 Law J. Rep. (n.s.) IM.C. 241 ; 2 L, M. & P. P.C. 429. A warrant of commitment, under the 4 Geo. 4. c. 84. s. 3, adjudged that J G having contracted to serve J S as a collier for a certain time, and the term of his contract being unexpired, "did unlawfully misdemeau and misconduct himself in his said service by neglecting and absenting himself from his said service without the leave of his master, without having given to his said master any notice thereof, and without assigning any sufficient reason for so doing" : — Held, that the warrant was bad, as it did not shew that J G had absented himself without lawful excuse. In re Geswood, 23 Law J. Rep. (N.s.) M.C. 35; 2 E. & B. 9S2. Senible — that such an instrument, although for some purposes equivalent to a conviction, need not set out the evidence ; at all events since the 11 & 12 Vict. c. 43. s. 17. Ibid. A B was committed to prison by a Justice under the Master and Servants Act by a warrant which, after reciting that complaint had been made on oath that A B did contract with Messrs. M in the capacity and employment of a collier for the term of one month, and so on from month to month, deter- minable on a month's notice, and for the wages of Is. lOrf. per ton for cutting coal; and that the said A B entered into the said service according to the said contract, and afterwards and before the term was completed was, in the execution of his contract, guilty of misconduct and misdem"eanour in unlaw- fully absenting himself without the consent of his masters, and without lawful excuse, proceeded, " and whereas the said A B was, this 10th day of December 1853, duly convicted before me, &c. of the said offence so charged upon him in and by the said information, and I, the Justice, adjudged that the said A B for his said offence should be committed to the said house of correction, &c., these are there- 470 MASTER AND SERVANT— MERGER. fore to command," &c. The warrant then directed the gaoler to detain the prisoner for the time speci- fied therein. Upon a return to a AaScas corpus consisting of the above warrant, — Held, first, that affidavits might be used for the purpose of shewing that there was no evidence before the Justice from which he could legally infer a contract creating the relation of master and servant between the parties; and so negativing jurisdiction. Ex parte Bailey, and Ex parte Collier, 23 Law J. Rep. (n.s.) M.C. 161; 3 E. & B. 607. But, it being assumed that the evidence before tlie Justice was that A B was employed by Messrs. M under a contract to serve until a month's notice should be given by either party; that the price to be paid should be Is. \0d. per ton of coal cut, and should rise and fall with the price in other collieries in the district, but that the price was not to affect the month's notice; that A B should serve Messrs. M exclusively, and should not work for any other per- son during the said service and until the expiration of the month's notice; that if trade was slack or the works stopped by accident, Messrs. M were to be compelled to provide him with work or to pay him reasonable wages; and that the evidence on the part of A B was that he was not bound to any hours of working, nor to cut any quantity of coal ; that the employment in the colliery depended on the demand for coal, and that there was not always full employ- ment, and that no allowance was made for loss of time when trade was slack or the works stopped by accident : — Held, that there was evidence from which the Justice might infer an obligation on the part of Messrs. M to employ and of A B to serve personally, and that he therefore had jurisdiction, and that the Court would not interfere with his decision. Ibid. Held, also, that this being a warrant of commit- ment purporting to be founded on a preceding coU' viction, it was good on its face, notwithstanding that it did not state that the evidence was given on oath or in the presence of the prisoner. Ibid. (6) To enforce Payment of Wages. H was hired as a dairy-maid at a farm, to serve for a year, and the duties to be performed by her were those of a dairy-maid, and to assist in the harvesting of the hay and corn, if required. She had also to keep house and to cook for the men- servants and labourers, and to make their beds, and when her master and sometimes his family visited the farm, which he did weekly, she cooked for and attended upon them. An order was made by two Justices under 20 Geo. 2. c. 19. upon the master for liayment of a year's wages to H as a servant in husbandry : — Held, that upon the above facts, the Justices might find that H was a servant in hus- bandry within the 20 Geo. 2. c. 19, and that the order, appearing to be vahd, ought to be enforced. Ex parte Hurjhcs, 23 Law J. Rep. (n.s.) M.C. 138. No right of appeal to the Quarter Sessions exists against an order of Justices, made under 4 Geo. 4. c. 34. s. 5, for the payment of an amount of weekly wages adjudged to be due from a master to his servant, upon a complaint under 20 Geo. 2. c. 19, although the Justices in making such order may have acted without jurisdiction. Regina v. Bedwell, 24 Law J. Rep. (n.s.) M.C. 17; 4 £. & B. 213. MERGER. A testator, by his will, after charging his real estates with the payment of his debts, legacies and funeral expenses, gave to trustees the sum of 6,000/., upon trust to pay the same to E W upon the day of her marriage, the sum to carry interest in the mean time, with a direction that if E W should die with- out leaving issue, the sum should sink into the resi- due of his personal estate, and go to his son G W; and he gave aU his real and personal estate to G W absolutely. G W, on his marriage, conveyed the real estates to uses, subject to the charge of the 6,000;. E W died, without leaving issue, and G W died subsequently, the charge never having been raised. On a bill by the personal representatives of G W to have the charge raised, — Held, reversing the decision below, that the charge had merged for the benefit of the persons entitled to the real estates; and that the result was not altered by the fact of G W having settled the real estates subject to the charge. Johnston v. Webster, 24 Law J. Rep. (n.s.) Chanc. 300; 4 De Gex, M. & G. 474: reversing 23 Law J. Rep. (k.s.) Chanc. 480; 2 Sm. & G. 136. Two terms were created in the same manor ; one for SOO years, in 1712; and the other for 600 years, in 1768. In 1791, the latter was assigned to A to secure a mortgage debt, and by a deed of even date the former was assigned to B as a trustee for A. A died, having appointed B, C and D his executors. In 1801, by a deed indorsed on the first assign- ment of 1791 and made between B, C and D, exe- cutors of A, of the one part, and E of the other part, B, C and D assigned the premises "and all the estate," &c. to E for the residue of the term of 600 years, subject to the equity of redemption : — Held, that the term of 1712 being held by B in what must be deemed his own right, did not pass by force of the words " and all the estate," &c., and was not merged. Hooper v. Harrison, 2 Kay & J. 86. Where the tenant in fee, or in tail of an estate, becomes entitled to a charge upon the same estate, the general rule is that the charge merges, unless it be kept alive by the party entitled to it; and where the merger of the charge would have let in other charges in priority, thereby rendering it the interest of the owner of the estate to keep alive his charge, the Court presumed that such was his intention, notwithstanding the absence of any other indication of such intention. Grice v. Shaw, 10 Hare, 76. Merger of a charge in the inheritance is not to be presumed, if it would be contrary to the interest of the owner of the estate and charge. Davis v. Bar- rett, 14 Beav. 542. A devised an estate to his heir, who in his own right had a charge on it. The heir bought up an incumbrance on the estate amounting to 11,5552. for 2,0002.: — Held, that he was entitled to the full amount as against the other incumbrancers on the estate. Ibid. A, the owner of a freehold estate subject to a mortgage in fee to secure 1,300Z., devised and be- queathed his real and personal estate to B, the mort- gagee. B, in his residuary account, stated that he had retained 4672. out of the personal estate towards payment of his mortgage debt. Afterwards, B de- vised the property to three relatives of A, " provided MERGER-MINE. 471 they undertake to receive the same with all the liabilities attaching thereunto": — Held, first, under the circumstances, that the mortgage had not merged in the fee; and, secondly, that the three took the estate, subject to the payment of the balance of the mortgage debt. Hatch v. Shelton, 20 Beav. 463. METROPOLITAN BUILDING ACT. [See Stat. 18 & 19 Vict. c. 122.] The Metropolitan Building Act (7 & 8 Vict. c. 84.) by section S. provides that " notwithstanding any- thing to the contrary in any act now in force," every building within specified limits shall be built in refer- ence (inter alia) to the walls, height, and to the projections and other parts or appendages of such building, in the manner and of the materials and in every other respect in conformity with the particulars contained in the schedules to that act, and subject in every case of doubt, difference, or dissatisfection in respect thereof, either between the parties con- cerned, or between any party concerned and the surveyor of the district, to the determination of the official referees appointed under that act. There are also provisions requiring buildings to be erected under the supervision of the surveyor, and enabling him, in case of irregularities, to require any build- ings to be cut into for the purpose of inspection. By the Metropolitan Paving Act (57 Geo. 3. c. xxix.) a power is given to Justices of the Peace to hear complaints by the Paving Commissioners against owners or occupiers of houses who refuse to remove any projections from their buildings over any public ways, vested in the Commissioners : — Held, that the provisions of the Building Act vested in the official referees the sole jurisdiction of determining questions connected with building operations, but did not ex- tend it to the decision of other matters in which the public is interested, and that, consequently, the right of a Justice to give redress under the Metropolitan Paving Act in case of encroachment on a public way was not taken away by the Building Act. Regina v. Jngham, 21 Law J. Rep. (n.s.) M.C. 125; 17 Q-B. 884. A house occupied by a tenant under a lease for twenty-one years was during the term accidentally burnt, and, being ruinous, was pulled down under the provisions of the Metropolitan Building Act. By the lease the tenant was exempted from paying rent for the time that the house was untenantable by reason of an accidental fire : — Held, that the expenses incurred could not be recovered from the landlord, a tenant for life of the reversion, under section 42. of the act, which throws the burden upon " the owner of every such building, being the person entitled to the immediate possession thereof." Ex parte the Overseers of Saffron Sill, 24 Law J. Rep. (n.s.) M.C. 56. METROPOLITAN PAVING ACT. [See Regina v. Ingham, title Metropolitan BniLDiKG Act.] To a declaration in trespass for entering the plain- tiff's close and pulling down a wall there, the defen- dant pleaded that the close in question was a paved public place, within the meaning of the Metropolitan Paving Act (57 Geo. 3. c. 29), and that the plaintiff had unlawfully, and contrary to the provisions of the said act, erected thereon the said wall; and because the said wall, at the said time when, &c. remained incumbering the said public pavement, and because the plaintiff, upon the request of the defendant, refused to remove the same, the defen- dant entered upon the said close and pulled down the said wall ; — Held (after verdict for the defendant), that the plea was bad, as it did not shew any neces- sity for the defendant's using the portion of the pavement obstructed by the wall, or that it interfered with the exercise of his right of passage. Bateman V. Bluck, 21 Law J. Rep. (n.s.) Q.B. 406. METROPOLITAN POLICE MAGISTRATES. [See Justice of the Peace.] MINE. [Right to Minerals, see title Incloscre, (B) (a).] (A) Grant. (B) Lease. (C) Company. (a) Powers, DwliesajndLiahilities, in general. ( 6 ) LiabiUty for Injvries in Working Mimes. (D) Cost-Book System. (E) Shares, Sale and Transfer of. (F) Inspection of. (A) Grant. [See title Limitations, Statute of.] Trespass for breaking and entering the plaintiff's closes and digging minerals therein. Pleas, first, not possessed ; and, secondly, a plea justifying the tres- passes by the defendant as assignee of a lease of the minerals, and of the right to work them for ninety- nine years granted by the owner of the fee in 1821. Replication, that the right to make an entry did not first accrue to the defendant or those through whom he claimed within twenty years next before the entry by the defendant, and that the defendant's right was, therefore, barred by the 3 & 4 Will. 4. c. 27. Issue was taken on this replication. It appeared that in 1821, while B was in possession, as tenant from year to year, of a farm, including the close in question, the owner of the fee by indenture demised the coal lying beneath the farm to B and P for ninety-nine years, with liberty to work the game. The interest of B and P under this demise became vested by various mesne assignments in the defendant, who in 1847 (during the term ) worked the coal. Uptol847no coal had ever been worked under the demise : — Held, first, that B must be presumed to have been in possession of the minerals, as well as of the surface, when the lease for ninety-nine years was granted, which thus became a lease in possession and not a mere interesse termini, and that this possession of the minerals continued and passed fo the defendant without any actual entry under the lease of 1821. Secondly, that the posses- sion of B enured for the benefit of himself and P. 472 MINE. Thirdly, that the second plea confessing that the plaintiff was de facto in possession when the tres- passes were committed, would be satisfied by a dis- possession of the lessees within twenty years before the defendant entered to commit the trespasses in question, and that the defendant might rely on the right of entry which accrued on such dispossession, and not upon a right of entry accruing as upon a grant of an interesse termini in 1821. Kei/se v. Powell, 22 Law J. Eep. (N.s.) Q.B. 305; 2 E. & B. 132. (B) Lease. In a lease of a coal mine the lessees covenanted to leave un worked a barrier of coal between the demised mine and the adjoining mines, except where the lease gave them liberty to break through it. The liberty was to make outstrokes, or other communications through the barrier for the purpose of conveying underground coals gotten in any of the adjoining collieries in the occupation of the lessees, from such colliery into the demised mine, and by such out- strokes and communications to convey underground the coals from sucb adjoining collieries into the de- mised mine, and from thence to convey and carry away all such coals, and also draw to bank at any of the pits or shafts, sunk or to be sunk by the lessees in any of the land and grounds demised, the coals from such adjoining colliery : — Held, that this liberty extended to authorize the lessees to break through the barrier for the winning coal of the demised mine and for winning coal of such adjoining mines, though the coal of such demised or adjoining mines when won was not to be nor was brought to the surface through a pit or shaft in the demised land, and al- though no such pit or shaft in fact existed. JamesY. Cochrane (in error), 22 Law J. Eep. (h.s.) Exch. 201 ; 8 Exch Rep. SS6 : affirming the judgment below, 21 Law J. Rep. (h.s.) Exch. 229; 7 Exch. Rep. 170. There were various provisoes in the lease which spoke of pits or shafts in the demised lands; but there was no express covenant to make any such pit or shaft. There was also a covenant that the lessees would draw to bank at some of the pits or shafts of the said colliery (provided that the same should be pits or shafts from which the coals of the demised colliery should not be worked by an outstroke), and lay in some convenient place on the lands of the lessors all the manure made by the horses employed underground in working the demised mine : — Held, that there was no express or implied engagement by the lessees that bound them to sink a pit in the demised land. Ibid. There was a further covenant that the lessees would not do or suffer to be done anything whereby the demised mine or any part of it should be damnified, drowned, or overburthened with water, or which might occasion any creep or thrust on the workings, shafts, aircourses or watercourses of the colliery, and that they would keep the levels, drifts and necessary staples for air clear and in good repair, order and condition from the surface of the earth down to the levels or drifts; and should and would draw all the water to come forth out of the colliery by means of fire or other engines to the surface of the earth or to some off-take or drift, and there discharge the same. Scmble — That suffering the workings and aircourses of an old seam of the mine which had been partially worked, but which was being worked no longer, to remain full of water, was not a breach of that part of the covenant which required the lessees to keep the levels, drifts, and 'necessary staples for air in good repair, order and condition. Ibid. Coal mines were demised at a certain royalty per ton upon the coal which might be got, and also at the rent of 300;. a year, or so much thereof as with the royalty should amount to that sum, such rent of 300;. to be a minimum rent for the coal demised. And the lessee covenanted to pay the rents and to work the mine : — Held, that a court of equity would not restrain an action by the lessor for the minimum rent, although the coal proved to be not worth the expense of working; but that if the lessor were to sue upon the lessee's covenant to work the mine, the Court would interfere. Ridgway v. Sneyd, Kay, 627. In applying the rule of caveat emptor to the case of leases of coal mines, it must be remembered that every one acquainted with that kind of property is aware that coal mines are liable to be interrupted by faults. Ibid. If all the coal had been gotten by ancient workings, that might be a case for equitable relief. Ibid. (C) Company. (a) Powei'S, Dviies and LiaUUties in general. [See Stat. 18 & 19 Vict. c. 32.] In an action of assumpsit, the declaration stated, that in consideration that the plaintiffs would sell to the defendants iron rails, the defendants agreed to furnish to the plaintiffs sections of the said railways, averring mutual promises, and alleging as a breach the non-delivery of the sections by the defendants. It appeared that the plaintiffs were incorporated by a charter, for the purpose of carrying on the business of copper miners, and that the contract in question, which was not under seal, had been made by an agent on behalf of the plaintiffs with the defendants: — Held, that the action could not be maintained by the corporation, as the contract was not under seal, and did not fall within any of the exceptions to the general rule, that a corporation can only bind itself by deed. That the contract was not incidental or ancillary to carrying on the business of copper miners, and was therefore not binding on the corpo- ration. That no other charter authorizing the com- pany to deal in iron could be presumed to exist, the charter which was given in evidence not supporting such an authority. That, as the corporation could not be sued upon this contract, and as the alleged promise by them formed the consideration for the defendants' promise, the corporation could not sue upon the contract. The Oovernor and Compamy of Copper Miners v. Fox, 20 Law J. Eep. (n.s.) Q.B. 174; 16 Q.B. Rep. 229. Semble — that the doctrine cannot be supported, that a corporation may sue as plaintiffs upon a simple contract, upon the ground that by so doing they are estopped from objecting that the contract was not binding upon them. At all events, such an estoppel could only support an action of covenant, as upon a contract xinder seal. Ibid. Where a bill was addressed to a mining company, and accepted by the defendant as manager, and it was shewn that he and three others had agreed to MINE; (C) CoMPANT. 473 form the company, and that the mine had been worked on the footing of that agreement, — Held, that the defendant was individually liable on the bill as a member of the company. Owen v. Vcm Uster, 20 Law J. Eep. (n.s.) C.P. 61; 10 Com. B. Rep, 318. The case of Vice v. Lady Anson, 7 B. & C. 409; s. 0. 6 Law J. Eep. K.B. 2i, commented upon. Ibid. The directors of a mining company have no implied authority to borrow money on the credit of the com- pany, for the purposes of carrying on the mines or for any other purpose, however useful or necessary to the objects for which the company is formed. Burmester v. Norris, 21 Law J. Rep. (s.s.) Exch. 43; 6 Exch. Rep. 796. By the deed of settlement under which a company was carried on, a capital of 50,OOOZ. was provided, and there were powers to create new shares, and to alter the provisions of the deed by the vote of a special general meeting. There was also a clause " that the affairs and business of the company shall be under the sole and entire eontroul of the directors, of whom there shall be not less than five or more than nine, and three of them shall, at all meetings of directors, and for all purposes, be competent to act": — Held, that under this deed the directors had no express authority to borrow money for the neces- sary purposes of the mines. Ibid. The defendant and other adventurers purchased a mine of B for 1,000/. down, and 15,000/. to be paid in cash or shares at the end of six months, should they continue to work it, such payment of the 15,000/. or the surrender of the mine to B being optional to them. At a meeting, at which the de- fendant was present, on the 21st of October, for the purpose of forming a company, on the cost-book principle, to work the mine, it was divided into 60,000 shares, 1,125 of which were allotted to the defendant, and for which he paid 100/., and 33,750 shares to A, B and C, who agreed to find the capital requisite for working the mine during six months from that date, and they, with others, including the defendant, were appointed a managing committee. During the six months the plaintiffs supplied ma- chinery necessary for the mining operations to the order of the purser : — Held, that the defendant was a partner in the mine during that time, and that the resolution of the 21st of October, that A, B and C should find the requisite capital for six months, did not exempt him from liability to the plaintiffs for the goods supplied. Peel v. Thomas, 24 Law J. Rep. (N.s.) C.P. 86; 15 Com. B. Rep. 714. A manager of a mine is authorized to incur debts for wages and goods necessary for carrying on the mine. In re the Germam Miming Compcmy, 22 Law J. Rep. (n.s.) Chanc. 926; 4 De Gex, M. & G. 19. (5) lAabilityfor Injuries in worhimg Mines. "When the surface of land belongs to one man, and the minerals belong to another, no evidence of title appearing to regulate or qualify their rights of en- joyment, the owner of the minerals cannot remove them without leaving support sufficient to maintain the surface in its natural state. The owner of the surface-close, while unencumbered by buildings and in its natural state, is entitled to have it supported Digest, 850—1855. by the subjacent mineral strata, and if the surface subsides and is injured by the removal of these strata, although the operation of removal may not have been conducted negligently nor contrary to the custom of the country, the owner of the surface may maintain an action against the owner of the minerals for the damage sustained by the subsidence. Humphries V. Brogdm, 20 Law J. Eep. (n.s.) Ci.B. 10; 12 Q-B. Rep. 739. A declaration, alleging that the defendant wrong- 'fully and improperly and without leaving any proper or sufficient pillars or supports in that behalf, worked certain coal mines under and contiguous to the close of the plaintiff, and dug for and got and moved the coals, minerals, earth, and soil of and in the said mines, and that by reason thereof the soil and surface of the said close sank in, cracked, swagged, and gave way, is sufficient, without an express allegation that the plaintiff was entitled to have his close supported by the subjacent strata. Ibid. A declaration in case by reversioners stated that certain buildings and closes of land were in the occu- pation of A and B as tenants to the plaintiffs, the reversion belonging to them. That the defendant so negligently, and without leaving proper support, worked certain mines near and contiguous to the said premises, and dug minerals out of the mines near and' contiguous to the said buildings and closes, whereby large portions of the buildings became in- jured, and the ground on which the buildings stood and the said closes swagged and gave way ; — Held, on motion in arrest of judgment, that the declaration was good; that, as it did not appear that the soil in which the mines were belonged to the defendant, or that the defendant had all the right to get the mines which the owner of the adjoining soil had, the defen- dant was primA facie a wrong-doer, and that it was unnecessary to aver in the declaration that the plain- tiffs had a right to have the buildings supported by the soil under which the defendant worked. If any circumstance existed which justified the defendant in getting the minerals without leaving sufficient support, that should have been pleaded by way of confession and avoidance. Jeffries v. Williams, 20 Law J. Rep. (u.s.) Exch. 14; 5 Exch. Rep. 792. The withdrawal of any part of the stratum to the support of which the owner of the adjacent soil or house thereon is entitled, is a cause of action, as an injury to the right, although no immediate damage ensues; and no fresh cause of action accrues by the occurrence of subsequent damage. Therefore, to an action for damage caused by such withdrawal, it is a good answer that a prior action has been brought for damage consequent upon the wrongful act, and an accord and satisfaction agreed to and performed be- tween the parties. Nictdin v. Williams, 23 Law J. Eep. (n.s.) Exch. 335; 10 Exch. Eep. 259. Declaration for wrongfully, negligently, and im- properly, and without leaving any proper or sufficient support, working certain coal mines under the land and buildings of the plaintiffs, whereby the said land swagged and sank, and the said buildings were cracked and injured. Plea, setting out an indenture of 1671, by which the land in question upon which the buildings were erected was conveyed by Sir R. Cole to E C, from whom the plaintiffs claimed title, reserving to the said Sir R. Cole the coal mines within and under the said land, with free and full 8 P 474 MINE— MONEY COUNTS. power to work, sink, dig for or mine, and to drive drifts and make watercourses, or to do any other act necessary or convenient for the working, winning, or getting the said coal, with free liberty of way-leave for leading and carrying to places convenient for laying or vending the same; and containing a cove- nant by the said Sir R. Cole, his heirs or assigns, for payment to the said R C, his heirs or assigns, of treble the damages, loss, or prejudice which the said R C, his heirs or assigns, should sustain by reason of the digging, working, sinking, breaking of ground, and way-leave, or other matter or thing used or ex- ercised in working or leading of the said coal. The plea then alleged that the plaintiffs were not entitled to have the said land and buildings supported by the said mines, otherwise than subject to the said rights, privileges, reservations, and matters excepted and re- served out of the said grant by the said deed. The title of the defendant to the said mines, with all the said rights, privileges, &c., was shewn; and it was further alleged, that the defendant worked, sunk, dug for and winned the said mines in divers parts of the said lands and premises, and drove drifts and made watergates and used divers ways, and did other acts necessary and convenient for working, winning, and getting the same in the said lands, and in so do- ing caused the damage complained of; the defendant doing the said acts carefully, diligently, skilfully and properly, and according to the course and practice of mining used and approved of in the county, and being ready and willing to satisfy and pay damages according to the said covenant in the said deed con- taiijed. Replication, taking issue, first, upon the allegation that the acts complained of were necessary for the working, &c. the said mines ; and, secondly, that the said acts were done carefully, &c., accord- ing to the course and practice of mining used, &c. Demurrer also to the plea. It was admitted at the trial of the issues that the defendant had skilfully and properly worked the said mines, except that he had removed all the coal and left no support for the sur- face land. It also appeared, that in 1671 and until 1810 the approved course and practice of mining in the county was to leave ribs of coal to support the surface, but since 1810 the practice had been differ- ent : — Held, that the primd facie right of the plain- tiffs, as owners of the surface, to sufficient support from the subjacent strata, was not interfered with by the powers of working and winning the coals, re- served by the deed of 1671, which were perfectly consistent with the exercise of them being subject to the plaintiffs' right to support ; and therefore that the plaintiffs were entitled to judgment upon the de- murrer. Smart v. Morton, 24 Law J. Rep. (n.s.) Q.B. 260. Held, also, that the plaintiffs were entitled to re- tain the verdict on the issues raised by the replica- tion. Ibid. (D) Cost-Book System. A lease of a mine was made to A B and two other persons, co-adventurers, who agreed to work it upon the cost-book system. Calls were made which AB did not pay, and his co-adventurers declared his shares forfeited. A B had not abandoned his right, but after three years he filed a bill, praying a disso- lution of the partnership and for an account : — Held, (affirming a decree of the Master of the Rolls) that there is no custom in mines worked on the cost- book system to forfeit shares for non-payment of calls without a special stipulation. Hart v. Clarice, 24 Law J. Rep. (n.s.) Chanc. 137; 6 De Gex, M. & G. 232; 18 Beav. 349. Held, also, (reversing the decree of the Court be- low) that the partnership was not determined at the time of the declaration of forfeiture, and that the plaintiff was entitled to an account, and to the ap- pointment of a manager and receiver, and that, the plaintiff having a legal interest in the mine, it could not be affected by the acts of his partners. Ibid. (E) Shares, Sale and Tkahseeb of. [See titles. Frauds, Statute of — Insolvent.] (F) Inspection op. [See Stat. 18 & 19 Vict. c. 108.] MISDEMEANOUR. [See the various titles of Criminal Lavt, and especially Burial — Conspiraoj — FoRaERT.] In some counts of an indictment, the defendant was charged with unlawfully and knowingly obtain- ing and procuring indecent and obscene prints and libels, in order and for the purpose of afterwards publishing and disseminating them. In other counts with unlawfully and knowingly preserving and keep- ing in his possession indecent and obscene prints and Kbels, with the intent and for the purpose of after- wards publishing and dissemmating them : — Held, on writ of error, that the former counts were good, as the obtaining and procuring the indecent prints and libels, for the purpose alleged, was an act done in commencing a misdemeanour, and, therefore, an indictable offence. But that the latter counts were bad, as they alleged no act done, and the possession of the prints and libels may have been come by inno- cently. Dugdale v. Regina (in error), 22 Law J. Rep. (N.s.) M.C. 50; 1 E. & B. 42S. MONEY COUNTS. [See title Account stated.] (A) Money paid. (B) Money lent. (C) Money had and received. (A) Monet paid. When a wife dies, her husband is bound to pro- vide her with a funeral at a reasonable expense; and if he does not do so, any person who voluntarily employs an undertaker and pays him for performing such a funeral, is entitled to recover the sum so expended, from the husband, in an action for money paid. Amlrose v. Kerrison, 20 Law J. Rep. (n.s.) C.P. 135; 10 Com. B. Rep. 776. A being in want of money applied to D and S, ■who were in partnership, for an advance. They sent him an acceptance by D alone, and A agreed that if he discounted that acceptance he would give to D and S his own acceptance. He discounted D's acceptance, but failed to give his cross-acceptance. MONEY COUNTS. 475 T> was afterwards sued on his acceptance by the holder of it, and paid it out of the money of D and S. D then sued A for money paid: — Held, that the action could be maintained by D alone upon the implied contract to indemnify him, ' which arose when he paid the acceptance upon which he alone was liable to be sued. Driller v. Bwrton, 21 Law J. Rep. (N.S.) Q.B. lS7j 17 Q.B. Bep. 989. A and B, being partners, kept an account with C as their banker. On the banker's claiming a balance against the firm, A demanded an explanation from B, and B wrote to him that the balance was his own private debt, and that the firm had nothing to do with it. Subsequently B gave the banker a promis- sory note for this balance signed in the partnership name. A having been compelled to pay this note, — Held, that he might recover the whole from B in an action for money paid to his use. Cross v. Ches- hire, 21 Law J. Rep. (n.s.) Exch. 3; 7 Exch. Rep. 43. (B) Money lent. [See Enthover v. Uayler, title Debentures.] M W deposited certain country bank notes, pay- able in London, representing 80?. in value, with a banking company, and received the following memo- randum, signed by the manager: — "Received of M W 80;., for which we are accountable. 80i, at Zl. per cent, interest, with fourteen days' notice." The notes were sent on the same evening by post to the London agents of the banking company, and were presented on the next day, and refused pay- ment. They were re-transmitted by that night's post to the banking company, who on the following day gave notice of dishonour to M W, and tendered to him the notes, which he refused. It turned out that the bank which had issued the notes had stopped payment upon the day when M W made the deposit with the banking company, but that neither M W nor the banking company were then aware of this: — Held, that, under the above circum- stances, M W could not maintain an action, either for money lent or for money had and received, against the banking company. Timmis v. Oibiins, 21 Law J. Rep. (n.s.) Q.B. 403. (C) Monet had and received. [See Edwards v. the Oreai Western Sail. Co., title Carrier, (C), and titles Assumpsit — Insolteht.] A and B, the defendants, went together to the house of the plaintiff's mother, and A seized there a sum of money belonging to the plaintifl'. There was some evidence of A and B having gone with the intent to get the money, but there was no evidence that B went into the Iiouse. They subsequently paid the money into a bank to their joint account : — Held, that the plaintiff might waive the trespass, and maintain an action for money had and received against the two defendants. Neat v. Harding, 20 Law J. Rep. (n.s.) Exch. 250; 6 Exch. Rep. 849. Deeds of the plaintiff were placed by A in the hands of the defendant, her attorney, and, upon application, A declined to give any information about them, unless upon payment of a sum of money which she claimed to be due to her from the person who had devised to the plaintiff's wife the property to which the deeds related, and ultimately referred the plaintiff to the defendant. He also refused to give them up, and the plaintiff, in order to obtain them, paid the amount claimed, saying, at the same time, to the defendant, " You shall hear of this again :" — Held, that this was not a voluntary pay- ment, and that the amount so paid was recoverable in an action for money had and received. Gates v. Hvdson, 20 Law J. Rep. (n.s.) Exch. 284; 6 Exch. Rep. 346. A landlord, who has sold his tenant's goods under a distress for rent, is not liable in an action for money had and received at the suit of the mortgagee of the goods to recover the overplus money in the landlord's hands; the proper remedy being by an action on the case against him for not paying over the overplus to the sheriff, pursuant to 2 W. & M. sess. 1. c. S. s. 2. Yates V. Eastwood, 20 Law J. Rep. (n.s.) Exch. 303; 6 Exch. Rep. 805. The Bristol and Exeter Railway is a continuation of the Great Western Railway, but . worked by a distinct company, and the act of incorporation re- quires that the charges for carriage of goods, &c. shall be the same to all persons under similar circum- stances. By the scale-bill issued at the stations on both lines, and purporting to specify the rates of carriage along both lines, the sum of %l. 6s. 3d. was stated as the price for the carriage of goods per ton from Paddington, being the London terminus of the Great Western Railway, to Taunton, a station on the Bristol and Exeter line. This charge included the cost of collection and of the delivery of the goods at the respective places. To the bill was appended a notice that persons collecting and delivering their own goods in London and Taunton would be allow- ed 2s. 6d. and Is. respectively. The plaintiff, who so collected and delivered goods which he sent by the railway from Paddington to Taunton, demanded a larger allowance, alleging that the sum of 3s. 6d. was not a reasonable compensation for the perform- ance of these duties, and upon several occasions he paid to the Bristol and Exeter Railway Company at Taunton the full amount of 21. 6s. Sd. per ton, less the allowance above specified, for the carriage of goods from Paddington to Taunton, but always under protest, although without ever tendering a smaller amount. He then brought an action for money had and received to recover the excess which he had paid above what would have been payable at an in- creased allowance. The jury found that the allow- ance of 2s. 6d. and Is. was too little, and returned a verdict for the amount so paid in excess : — Held, first, that the action for money had and received was maintainable. Secondly, that the whole sum so paid in excess was recoverable from the Bristol and Exeter Railway Company, although they received a portion of it as agents only for the Great Western Railway Company. Parlcer v. the Bristol and Exeter Bail. Co., 20 Law J. Rep. (n.s.) Exch. 442 ; 6 Exch. Rep. 702. L placed in plaintiff's hand a fund, out of which plaintiff was directed to satisfy certain acceptances; defendant falsely represented to plaintiff that he held one such acceptance, and thereby induced plaintiff to pay him the amount of the alleged acceptance out bf the fund: — Held, that plaintiff might maintain money had and received against defendant. SoU v. Ely, 1 E. & B. 79S. Semile — that L might also have maintained the action. Ibid. '^ 476 MONEY COUNTS— MORTGAGE. The will of a testator, who at the time of his death, was in possession of some household property, which had been mortgaged to him in fee to secure 1,500^. and interest, contained the following clauses: — "I give all my interest and claim on household property in N belonging to the successors of the late [mort- gagee], on which I have a mortgage of 1,5001.," &c. " to the plaintiff, his heirs and assigns for ever," &c. "My widow shall pay my funeral expenses and other just "debts, without interfering with the legacies to my family." During the testator's lifetime, certain repairs which had been ordered by him had been done to the mortgaged premises, but had not been ■ paid for by him, but were paid for by his executrix after his death. There were also at the time of his death arrears of interest due on the mortgage: — Held, that, by the will, not only the principal sum of 1,500?. but also the unpaid arrears of interest passed to the plaintiff as legatee. That the plaintiff was not liable to repay to the executrix the sum he had so paid for the repairs of the mortgaged premises. That the executrix was not justi6ed in refusing to give up to the plaintiff the mortgage deed until he had paid to her the amount of the arrears of interest and of the bill for the repairs ; and that, assuming that she had assented to the legacy, and that the sums were paid under duress, he was entitled to recover them back. Oibion v. Gibion, 22 Law J. Rep. (U.S.) C.P. 131; 13 Com. B. Rep. 205. E H L, who resided in New South Wales, being entitled to an annuity for his life, assigned it, in 1847, to trustees, to dispose of it for his benefit. The plain- tiff entered into a written correspondence with the trustees upon the matter of the purchase, and from the various letters which passed between the parties it appeared that the terms of the purchase were not finally determined and settled upon until the 28th of Pebruary 1849. Upon the 6th of February the an- nuitant died. The purchase-money was paid by the plaintiff in ignorance of the death, and came into the hands of the executrix of the deceased: — Held, that, as the annuity had ceased to exist at the time of its purchase, the plaintiff was entitled to recover ftom the executrix the whole of the purchase-money, on the ground of its having been paid without consider- ation. StricMand v. Turner, 22 Law J. Rep. (n.s.) Exch. 115; 7 Exch. Rep. 208. The plaintiff applied to the defendant, a parish clerk, who kept the parish registers under the direc- tion of the rector, for permission to search them. He told the defendant he did not want certificates, but only to make extracts, and was informed that the charge would be the same whether he made extracts or had certiGcates. He accordingly searched the registers and made extracts. The evidence was, that no mention of the charge was made before the search, but that the plaintiff was told by the defendant that the charge was 3s. 6(2. for each extract, the amount of which he paid : — Held, first, that the payment was not voluntary, and that the plaintiff was entitled to recover the excess paid in an action for money had and received ; secondly, that the defendant, and not the rector, was the party to be sued. Steele v. Wil- liamg, 22 Law J. Rep. (n.s.) Exch. 225; 8 Exch. Rep. 625. Semble — that the fees if taken by the clerk after the examination of the book, would have been taken coforeq^'c»i,andmight have been recovered back. Ibid. SembU, also— that the plaintiff was entitled to take minutes in the course of his search, but not to occupy an imreasonable time for that purpose, nor to have the registers in his hands, it being the duty of the clerk to superintend the search, and to keep a con- troul over the registers. Ibid. Where a party, to secure advances made to him, assigned to his creditor his present and also his after- acquired property, and' the former being insufiicient to pay the debt, the creditor sold the present and also the after-acquired property, with the assent of the debtor, who probably thought that the after- acquired property passed by the assignment, — Held, that the proceeds of the after-acquired property which had been sold under a mistake as to the law, but without fraud, could not be recovered back. PlaU V. Bromage, 24 Law J. Rep. (n.s.) Exch. 63. MORTGAGE. [See titles Lahdlobd and Tenant — Mekgek — Trover.] (A) Constitution and Extent of. (B) Equitable Mortgage. (C) Statutory Mortgage. (D) Mortgagor and Mortgagee — relative Position op. (E) Rights op the Mortgagor. (F) Rights of the Mortgagee and Oiheks CLAIMING US"DER HIM. (G) Possession of Mortgagee. (H) Lo.sT Title Deeds. (I) Priority. (J) Tacking. (K) Liability to Debts. (L) Power op Sale. (M) Assignment. (N) Right to redeem. (0 ) Redemption and Reconveyance. (P) Foreclosure. (Q) Receiver. (R) Accounts. (S) Interest. (T) Costs. (U) Practice. (A) Constitution and Extent of. A mortgage of a chattel may be made without deed. Plory v. Dermy, 21 Law J. Rep. (h.b.) Exch. 223; 7 Exch. Rep. 581. Trustees were empowered under a local act to 'purchase land, &c. for the purpose of making public docks, and to raise fund? by borrowing money on the security of the rates and tolls to be levied under the act, and of any property vested in the trustees by virtue of the act, and the mortgages executed for this object were to be pursuant to a certain form, and to be registered. In the course of the execution of the works a large quantity of tools, machinery, and ma- terials were purchased by the trustees for the purposes of the works, which they subsequently mortgaged to the contractor by two deeds which were not in the form given by the statute or registered. Subsequently these materials, tools, and machinery were seized under an execution against the company : — Held, that the MORTGAGE. 477 mortgage was valid, and the materials, &c. were not liable to be seized. M'Cormici v. Parry, 21 Law J. Eep. (n.s.) Exch. 143; 7 Exch. Eep. 35S. The purchase of a piece of land at an exorhitant price will not be allowed to stand when made the condition of a loan of money to a party whose neces- sities compelled him to borrow. CoctxU v. Taylor, Preston v. Collett, and CoUett v. Preston, 21 Law J. Rep. (n.s.) Chanc. 645 j IS Beav. 103. A mortgage of a fund in court in a suit of Oollett V. MavXe, by W G C, the purchaser of the land, to secure 6,000Z., the purchase-money, to G W F, the vendor, set aside, on the ground that the transaction was fraudulent. Ibid. An assignment of a chose in action must be taken, subject to all prior claims. Sub-mortgages of the fund in court, made without noticing G W F, were therefore set aside, as his title was either void or sub- ject to the prior equity of W G C, notwithstanding he had been induced to create or countenance such sub-mortgages. Ibid. The acts of W G C in joining to create the sub- mortgages were not a recognition of or an acquies- cence in the sub-mortgages, as they were done in entire ignorance of his rights, and under the idea that the original transaction with G W F was unim- peachable. Ibid. In 1815, real estate stood settled on the husband for life, remainder to his wife for life; remainder to the heirs of the body of his wife; remainder to the right heirs of the husband. The husband and wife barred the estate tail; and by a deed of the 30th of June 1817, it was settled to such uses as the husband alone should appoint. He, by a deed of the 1st of July 1817, appointed to such uses as he and his wife should jointly appoint; and in default, to himself for life; remainder to his wife for life; remainder to his son. in fee: and on the 2nd of July 1817, they appointed the estate by way of mortgage for a term, with a proviso for cesser of the term upon repayment. Between 1817 and 1826, various other mortgages were made under the power, the equity of redemption being reserved in terms consistent with the uses of the deed of the 1st of July 1817. In 1832, the husband and wife, under the power, mortgaged the estate in fee; the equity of redemption being limited to the husband and wife, their heirs or assigns, or to such other persons aa they should .direct : — Held, upon appeal, reversing the decision below, that the proviso for redemption in the deed of 1832 was not intended to alter the limitations in the deed of the l»t of July 1817. Wldthread v. Smith, 23 Law J. Eep. (n.s.) Chanc. 611; 3 De Gex, M. & G. 727: reversing 1 Drew. 531. Held, also, that the deeds of the 30th of June and the 1st and 2nd of July 1817, constituted one trans- action ; and that, consequently, the deed of the 1 st of July 1817 was not a voluntary deed, as between the son claiming under the limitations of that deed, and a purchaser from the husband. Ibid. A B, a tenant in tail subject to an existing life estate, borrowed money on mortgage, and the tenant for life joined in order to bar the entail, and he cove- nanted to pay the interest during his life. By the same deed the equity of redemption was resettled on A B for life, with remainder to his issue in tail, with limitations over, — the Court, ten years afterwards, set aside the resettlement of the equity of redemp. tion, on the ground that there was no proof of any contract to vary the existing limitations. Meadows V. Meadows, 16 Beav. 401. A widow who, under her marriage settlement and otherwise, was entitled to annual and other sums charged on her husband's estates, was one of the trustees of his will, whereby the estates were devised in trust to raise 2,0001. for her benefit, and subject thereto in trust, to convey the estates as the testa- tor's daughter by a former marriage should direct. The daughter borrowed money upon the security of the mortgage of some of the estates, in which the widow and her co-trustee joined, and whereby after reciting the will and the agreement for the loan, and that the daughter had directed the widow and her co-trustee to make such conveyance as was therein- after contained, the widow and her co-trustee, as devisees in trust, by the direction of the daughter, conveyed the estates to the mortgagee upon trust for sale and for payment of the mortgage-debt and of the surplus as the daughter should appoint, and subject thereto according to the trusts of the will : — Held, 1. That the mortgage did not pass the bene- ficial interest of the widow. 2. That, nevertheless, her charges must be postponed to the mortgage, she having concurred in it without reserving he» prioritv. Strong v. HawTces, i De Gex, M. & G. 186. A surrender by a husband and wife of the wife's copyhold estate was expressed to be to suclj uses in favour or for the benefit of the husband, his heirs and assigns, and with such powers of sale and other powers and provisoes, and chargeable with such sums as a mortgagee (to whom a conditional surren- der had some time previously been made to secure 601.) should, at the request and by the direction of the husband appoint, and subject thereto to the use of the mortgagee and his heirs, with a proviso for making the surrender void on payment of the sum of \00l. then advanced by the mortgagee to the husband : — Held, that the destination of the equity of redemption was completely changed by the last- mentioned surrender, and was not merely affected to the extent required for the purpose of the security thereby created. Held, also, that the lord having accepted a surrender in the above form was bound by it. Eddleston v. Oollins, 3 De Gex, M. & G. 1 ; 22 Law J. Eep. (n.s.) Chanc. 480. Senible — that he could not have been compelled to accept it. Ibid. Semhle — that in a foreclosure suit it is not compe- tent for the defendant to impeach the mortgage on the ground of fraud, without instituting a cross-suit. Ibid. A B, being seised in fee of four estates, mortgaged two of them, and subsequently settled the mortgaged estates, and one of the others, on himself for life, with remainder to his son in tail, and covenanted against incumbrances; but the settlement did not recite that there were any incumbrances. He after- wards mortgaged the fourth estate, and took the benefit of the Insolvent Debtors Act. After this, a creditor on certain bills of exchange became a registered judgment creditor, and then filed a bill against the tenant in tail, and the assignee under the insolvency, and the other incumbrancers, praying a sale in satisfaction of the judgment debt and what might be paid by the plaintiff in discharge of prior 478 MORTGAGE. incumbrances, subject to the estate and interest of the tenant in tail under the settlement: — Held, reversing a decree of foreclosure against the tenant in tail, that the settled estates must be regarded as exonerated from incumbrances as between A B, the settlor, and the tenant in tail ; and that the plaintiff was subject to the same equities as the settlor; and that as the judgment debt was itself subsequent to the settlement, the tenant in tail could not be affect- ed by the judgment. Hughes v. Williams, 3 Mac. & G. 683. Among other incumbrances on the estates in question, was a legacy of 800Z., subject to the pay- ment of which the estates had been devised to A B; the testator's death took place in 1810, and the bill was filed in 1843, at which time the legacy and the arrears of interest thereon remained unpaid : — Held, that the arrears of interest on such legacy could only be recovered from within six years from the filing of the bill. Ibid. (B) Equitable Mortqagb. T, being possessed of a plot of land for a term of years, by indenture, dated the 24th of April 1845, mortgaged the term to S, as a security for 300?,, vrith an absolute power of sale on default of payment. On the same day he executed a memorandum of agreement, by which he undertook to deposit with S a lease of another plot of ground when it should be executed, the draft of which was already prepared, as a further and collateral security for the sum secured by the mortgage. A mill and certain build- ings occpuied therewith stood partly on one plot of land and partly on the other. On the 18th of December 1848 the lease was granted to T, and then deposited with S, in accordance with the memoran- dum of agreement. By indenture of the 27th of August 1845, T executed a second mortgage of the term mortgaged to S, as security to H M for lOOZ. On the 2nd of March 1847, T assigned an undivided moiety of the premises comprised in the lease first mentioned and of those comprised in tlie lease of the 18th of December 1845, and of the mill and build- ings thereon, to A; and on the 20th of September 1847 assigned all his estate and effects to trustees for his creditors. By indenture of the 31st of August 1848 S and H M assigned to the defendant both plots of land, with the mill and buildings thereon, subject to such equity of redemption as was then existing. In April 1852 the defendant sold the premises by auction, the conditions stating that he sold the whole as mortgagee of T; but that as to the part comprised in the lease of the 18th of December 1845 he had only the equitable interest, and the legal estate was not vested in him, and that the purchaser should accept as to this part such title as the vendor was able to deduce and convey. The plaintiffs purchased both plots and paid the deposit thereon ; but on the abstract of title being furnished, and T refusing to join in the conveyance, they declined to complete, on the ground that the legal estate in the premises comprised in the lease of the 18th of December 1845 was outstanding and might be set up adversely to them. They then brought an action for the deposit ; — Held, that they were not entitled to recover as upon a failure of consideration, for that under the circumstances there was the same absolute power of sale as to the premises comprised in both leases, the deposit having been upon the same terms as the mortgage ; and that even if this were not so, the conditions of sale had been com- plied with, the defendant having expressly stipulated to sell an equitable interest only. Ashworth v. Mmimey, 23 Law J. Eep. (n.s.) Exch. 73; 9 Exch. Rep. 175. A bond creditor having obtained possession of the title deeds of certain real estate, was held, in the absence of any evidence of an agreement for a de- posit, not to be an equitable mortgagee, and the Court refused to direct any inquiry. Chapman v. Chapman, £0 Law J. Bep. (k.s.) Chanc. 465; 13 Beav. 308. G S insisting that J F, the owner of an agreement for a building lease, had deposited it to secure to him 900?., claimed payment of the money from the administrator of J F, who had expended money out of his own pocket in finishing the houses, and had obtained leases from the lessors, and questioned the deposit and the extent of the advance, if any had been made : Held, that the affidavits affording evidence of deposit, the Court was bound to act upon them; that when the deposit was made, it gave G S a title to a mortgage, and that he had a right to payment; and the Court made a decree for an account and sale of the houses comprised in the agreement. Sims v. Hdlvng, 21 Law J. Eep. (h.s.) Chanc. 76. The Court will, on claim by equitable mortgagee by deposit of deeds, order a sale of the property in mortgage, but will not, in the absence or without the consent of the mortgagor, deprive him of the usual period of six months to redeem. Lloyd v. Whittey, 22 Law J. Eep. (n.s.) Chanc. 1038. Certain leasehold property was assigned to a pur- chaser. The assignment, with the receipt for pur- chase-money, was executed, and the title-deeds were given up to the purchaser, but part of the purchase-money was left unfiaid. The purchaser, on the following day, deposited the title-deeds by way of equitable mortgage, to secure a sum of money previously advanced to him : — Held, that the equitable interests of the two parties, the vendor in respect of his hen for unpaid purchase-money and the equitable mortgagee, being in all other respects equal, the equitable mortgagee, by the possession of the title-deeds, had the better equity, and that the rule qui prior est tempore potior est jure can only apply where the equitable interests are in every respect equal. Rice v. Rice, 23 Law J. Eep. (n.s.) Chanc. 289; 2 Drew. 73. A and B were tenants in common in tail of a copyhold estate, with cross-remainders between them. A deposited the deeds with C, as a security for money advanced to him, and by a memorandum of deposit engaged to surrender his interest when required. At the foot of the memorandum B wrote, " I join in the deposit." A died without issue, and B thereupon became entitled, as remainder-man, to the entirety. On a bill by C for a foreclosure,— Held, upon appeal, affirming the decision of the Court below, that the charge affected the moiety of A only; and that B was bound to surrender such moiety to the plaintiff, and to bear the expenses of such surrender. Pryce v. Bury, 23 Law J. Eep. (n.s.) Chanc. 676; 2 Drew. 11,41. A deposit of title-deeds to indemnify " person MORTGAGE. 479 against lose, in consequence of his having joined as surety in a promisaoty note, entitles him to a memo- randum stating the purpose of the deposit. It will not entitle him to claim a legal mortgage upon the estate. SporU-v, Whaymwn,, 24 Law J. Rep. (n.s.) Chanc. 789; 20 Beav. 607. A party taking an equitable mortgage, with notice of a prior equitable mortgage, cannot by assignment to another without notice give him a better title. Fm-A V. White, 16 Beav. 120. Property in Middlesex was mortgaged to A and afterwards to B, and sulssequently to C, with notice of B's incumbrance. C registered before B, aiid afterwards assigned to D, who had no notice of B's mortgage : — Held', that the interests being equitable, D had no priority over B. Ibid. The assignees of a bankrupt mortgagor, who had no assets, disclaimed, and said that they would have disclaimed before suit if any application had been made to them : — Held, nevertheless, that they were not entitled to costs. Ibid. An equitable mortgagee as of right is entitled to a foreclosure, and not to a sale. Gox v. Tooh, 20 Beav. 145. The secretary of a banking company had a credit account with the bank to the extent of 3,000^., secured by a memorandum specifying certain secu- rities deposited by way of equitable mortgage. On his dying a debtor to the bank in 4,000/., there were found in his office in the banking-house the securities inentioned in the memorandum, with others tied in a bundle and indorsed and labelled as securities. There was evidence that he had stated that the bank was secured in 6,000i. : — Held, that the bank was equitable mortgagee of all the securities. Ferris v. MulUns, 2 Sm. & G. 378. A solicitor took a deposit of a policy from his client under a parol agreement that it was to secure his then existing costs. Afterwards he made ad- vances, and took an assignment of the policy to secure them, the deed saying nothing about the costs : — Held, that the deed expressing no agreement that it was to include the costs, the possession under it merged the possession under the deposit, and the policy was only a security for the advances. ToMghwn v. Vamderstegen, 2 Drew. 289. (C) STATUTORT MOETQAflE. A corporation in order to complete a canal raised money by mortgage of the canal and of other pro- perty. They obtained an act, enabling them to bor- row money, to complete the canal, by mortgage of the canal and tolls. They applied part of the money raised under the act in paying off the former mort- gages ; — Held, overruling a decision of one of the Vice Chancellors, that the corporation had no autho- rity to pay oif the former mortgages out of the money raised under the act; that the corporation were liable to repay to the statutory mortgagees the money so applied; that the statutory mortgagees had a lien on the corporation estates, other than the canal, included in the former mortgages to the amount of the money so applied; and that as be- tween the statutory mortgagees and the corporation, the estates of the corporation, other than the canal, included in the prior mortgages, constituted the primary fund for the payment of the money so declared due to them. Trevillicm v. the Mayor of Exeter, 24 Law J. Rep. (if.g.) Chanc. 157; 6 De Gex, M. & G. 828. Divers acts of parliament authorized the con- struction of docks, &c., which were vested in trustees, who, without being personally responsible, were to enter into contracts for works and materials; they were also to raise money by mortgage of the rates and tolls to carry on the undertaking, and if any action on contracts was brought against them, the damages and costs were to bepaid out of the money to arise under the acts. A creditor of the trustees obtained a judgment against the trustees, to whom the rates and tolls were payable, and subsequently an order to issue execution against the persons by whom the rents and tolls were payable. The mort- gagees then instituted this suit and obtained a re- ceiver; and upon a petition by the judgment creditor for leave to issue execution, and on a motion for an injunction to restrain him from proceeding further,— Held, that the priority of the mortgagees was not affected, though the Common Law Procedure Act, 17 & 18 Vict. c. 155, had enabled parties to issue execution against property not previously liable. Ames V. the Tri/yStees of the Birkenhead Docks, 24 Law J. Rep. (n.s.) Chanc. £40; 20 Beav. 332. Held, also, that the mortgagees might at any' time take possession of the rates and tolls, and deprive the judgment creditor of all advantage which might arise from the execution. Ibid. (D) MORiaAGOB AND MORTGAGEE — REIATITE Position as. A mortgage contained a power of sale, and then a proviso and covenant by the mortgagee, that no sale should take place, nor any means of obtaining pos- session of the premises be taken, until the expiration of twelve calendar months after notice in writing of such intention had been given to the mortgagor. It also contained a covenant by the mortgagee for quiet enjoyment by the mortgagor as tenant at will to the mortgagee, on payment of a yearly rent, in lieu of and as interest upon the mortgage money." The mortgagor remained in possession of the premises, but no livery of seisin was made to the mortgagor. Prior to the commencement of the action, there was a demand of possession, but no notice to quit was ever given to the mortgagor : — Held, that the effect of the deed was to create a tenancy at will only; and that a demand of possession without any notice to quit was sufficient to entitle the mortgagee or his' assignee to maintain ejectment. Doe d. Dixie v. Dames, 21 Law J. Rep. (n.s.) Exch. 60; 7 Exch. Eep. 89. By the law of Canada (before the passing of the Canada Chancery Act, 7 Will. 4. o. 2), the relative position of mortgagor and mortgagee was governed entirely by the Common Law, and there was no equitable jurisdiction for redemption or foreclosure. When a mortgage in fee was made, giving the legal title to the mortgagee, and the mortgagor remained in possession, if the mortgagee were desirous of obtaining possession, and making his title absolute, he could only do so by an action of ejectment, and the mortgagor could, during_ the pendency of such action, come in, and by payment of the money obtain a compulsory right of redemption; but if the mortgagor abandoned that right, and the mortgagee obtained possession, the title of the mortgagee be- 480 MORTGAGE. came absolute and indefeasible. Smyth v. Simpson, 7 Moore, P.O. 205. (E) Rights of the Mortgagor. [See title Parliament.] Trespass to goods. Plea, that by an indenture made in 1847, between Q and the defendant, it was agreed between Q and the defendant, who was, during all the time thereinafter mentioned, possessed of certain premises for a certain term then to come and unexpired therein, that Q should hold the pre- mises as tenant at will to the defendant, at the yearly rent of 150/., for which rent it should be lawful for the defendant to distrain as landlords may for rents reserved on leases for years; that Q, held the premises under the said indenture and agree- ment; that three years' and a quarter's arrears of rent became due, during the time Q held the pre- mises as such tenant, and the defendant was pos- sessed of them as aforesaid; and that the defendant distrained the goods for rent. The plaintiff set out the indenture on oyer, from which it appeared that Q, having become, in 1847, the lessee of the premises under 51 for twenty-one years, wanting one day, and having borrowed money from the defendant, demised the premises to the defendant by way of mortgage, at a peppercorn rent, and that the defendant re- demised the same to Q, at a yearly rent of 150/., with power of distress: — Held, on demurrer, that the. plea was bad in not shewing such an interest in the premises, on the part of the defendant, as entitled him to distrain. Pinhom v. Sonster, or Souster, 22 Law J. Kep. (n.s.) Exch. 18; 8 Exch. Rep. 188. A mortgagor in possession is, prwsumptione juris, authorized to distrain as the bailiff of the mortgagor. Trent v. Hrnit, 22 Law J. Rep. (n.s.) Exch. 318; 9 Exch. Rep. ] 4. A mortgagor in possession distrained for rent accruing due after the mortgage, but the notice of distress described the rent as due tohimself :— Held, in replevin, that he could make cognizance as the bailiff of the mortgagee. Ibid. (F) Rights of the Mortgagee and Others CLAIMING UNDER HIM. having mortgaged a piece of land to the plain- tiff, the defendants, a railway company, afterwards occupied it by laying their rails upon it, and being subsequently called upon by the plaintiff for com- pensation, negotiated with him in respect thereof. The plaintiff had never been in possession of the land, but gave notice of the mortgage to the defen- dants, and then brought an action for use and occu- pation. The Judge directed the jury that the plaintiff was in a condition to waive the trespass, in respect of the occupation of the land by the railway company, and to bring an action for use and occupa- tion ; — Held, first, that there was evidence for the jury of the defendants having held the land on the terms of paying for it. Secondly, that the plaintiff being a mortgagee out of possession, and not having entered upon the land previously to the trespass, nor having a judgment by default, or a verdict in eject- ment in his favour, was not entitled to maintain an action of trespass against the defendants. Turner V. Cameron's Ooalbroolc Steam Coal, and Swansea and Louglior Rail. Co., 20 Law J. Rep. (n.s.) Exch. 71; 5 Exch. Rep. 932. Qacere — supposing the plaintiff to have been in possession of the land, and the defendants to liave trespassed thereon and occupied it to his exclusion for some time, whether he would be entitled to recover for use and occupation on the principle that he might waive the trespass and recover in assumpsit. Ibid. Debt for use and occupation. Plea — that the premises in question had been mortgaged to L S to secure the repayment of 200(. and interest in six months. That before the defendant began to use and occupy the said premises, the said six months had elapsed, without the repayment of the said sum of 200/., which still remained due. That until the commencement of the suit, the mortgagor continued the controul and management of the premises. That before the commencement of the suit, the defendant was required by notice to pay to the assignee of the mortgagee the amount sought to be recovered, and that from the time of the giving of such notice the defendant was liable to pay the same to such assignee : — Held, upon demurrer, that the plea was no answer to the action. Wilton v. Dvmn, 21 Law ,1. Rep. (n.s.) Q.B. 60; 17 Q.B. Rep. 294. Semile that if payment had actually been made under a claim by the mortgagee, such payment might have been pleaded as a defence to the action. Ibid. Where there were cross-covenants in a mortgage deed, and the mortgagees did not execute, it was held they might, nevertheless, bring their action against the mortgagor, who did execute — distin- guishing the case of a demise by indenture, as in Swatman v. Ambler. Morgan v. Pike, 23 Law J. Rep. (k.«.) C.P. 64; 14 Com. B. Rep. 473. A lessee who had covenanted to insure against fire in the joint names of himself and his lessor, with a proviso that the policy monies should be expended in reinstating the premises, assigned them by way of mortgage, with a power of sale under which the mortgagee sold. The mortgage deed did not notice the policy. The premises were subsequently damaged by fire, and were reinstated by the mortgagee. On a claim filed by the mortgagee and his vendee, the mortgagor was decreed to deliver up the policy and join with the lessor in signing the receipt to the insurance office to enable the mortgagee to receive the money payable under the policy. A lessee in possession is not entitled as against his mortgagee to a lien on the policy monies for repairs done by him after a fire. Garden v. Ingram, 23 Law J. Rep. (n.s.) Chanc. 478. A creditors* suit was instituted for the adminis- tration of an estate, the plaintiff being a puisne mort- gagee, the bill impeaching a first mortgage and asking for the realization of the second security. The first mortgagee, who was a party, by his answer insisted on his rights. A receiver was appointed by the Court, the first mortgagee not opposing, and he, the mortgagee, took no part in, although he had notice of, the proceedings in the suit. Claims were set up by strangers against the estate paramount the mort- gages and the mortgagor's title, which were defeated in proceedings at law instituted by order of the Court; and the receiver was ordered to pay the costs of those proceedings, without prejudice to the question how they were ultimately to be borne. The Court ordered a sale of the estate, and directed that the first mort- MORTGAGE. 481 gagee, whose title to priority had been established, should join therein. The income of the estate be- came insufficient to pay the interest on the incum- brances, whereupon the first mortgagee presented a petition, praying the discharge of the receiver and that he might be let into possession, but the petition was dismissed by one of the Vice Chancellors: — Held, upon appeal, that the mortgaged estate was not, as against the first mortgagee, liable to the costs of the law proceedings of defending the estate, nor as ■ against him to the general costs of the creditors' suit; that he was entitled to have the receiver discharged, and to be let into possession without paying any of such costs. Jjomgton v. Ltmgton, 24 Law J. Rep. (n.s.) Chanc. 625. The Court has no jurisdiction in such a suit to order a first mortgagee to join in a sale ; and the fact that the title of such first mortgagee is equitable does not affect any of his rights as to costs or as to being let into possession. Ibid. This Court will marshal the proceeds arising from seTeral mortgaged estates so as to prevent the first and second mortgagees of different estates from ex- hausting the proceeds of one estate upon which alone a third mortgagee had taken a security. Gibson v. Seagrim, 2i Law J. Rep. (n.S.) Chanc. 782; 20 Beav. 614. A puisne incumbrancer ofiered to pay off the first mortgage, which being declined, he filed a bill to compel a transfer. The first mortgagee having after- wards proceeded to sell the property, was restrained from transferring the first mortgage and parting with the legal estate and title-deeds. Rhodes v. Buckland, 16 Beav. 212. Right of eigne as against a puisne mortgagee to enforce all- his remedies at the same time. By a deed the amount due to the first mortgagee was con- firmed to him by the subsequent incumbrancers, and he thereby agreed not to execute his power of sale for a limited time : — Held, that a party who, by his bill, contested the amount so admitted to be due to the first mortgagee, could not take advantage of the sti- pulation in the deed not to sell within the time, and an inj unction to restrain such sale was refused. Cockell V. Bacon, 16 Beav. 158. A B was the first mortgagee of Blackacre, and C D was the first mortgagee of Whiteacre, and the second mortgagee of Blackacre. A Band C D demised both properties together, reserving the whole rent to A B. The parties did not seem to have observed the distinction between their rights in respect of the two properties. The Court relieved C D from the mis- take by ordering A B to pay him an apportionment of the whole rent in respect of Whiteacre. H(who disclaimed^ of a deceased trustee; and an inquiry being asked at the hearing to ascertain the parties entitled to the equity of redemption, the Court refused, at the instance of a party having only a redeemable interest, to direct inquiries which, on the satisfaction of the mortgage, might become use- less. WetherUl v. GiwbMtt, 1 Sm. & G. 124. In a suit to redeem, the mortgagee having b_v mis- take omitted to attend at the timeand place fixed by the Master for payment of the sum computed to be due to him for principal, interest and costs, the Court upon motion with notice appointed a new time and place for the payment of the money ten days after the date of the order. Sughes v. WilUams, Kay, App. iv. In such a case the defendant is not entitled to sub- sequent interest. Ibid. , Certain tenements were upon a loan of 260i assigned; by theowner tothelender foralong term of years, upon trust to sell and out of the proceeds first to pay th^ . costs of sale; secondly, to pay the 2001. and interest; and, thirdly, to pay the surplus to the owner. The deed contained a covenant by the owner to pay to the lender the 2001. and interest at the end of six months, and also absolute covenants by the owner for title as upon a mortgage and forquietenjoyment by thelender after default. Upon a bill to foreclose the equity of redemption in the form No. 6. of Schedule A. to the Orders of April 1850, — Held, that the case was one for, a sale and not for a foreclosure. Jetikin v. Bow, B De Gex & S. 107, A B on his marriage settled certain estates, then fa mortgage, on himself for life, with remainder to his first and other sons in tail, and covenanted against incumbrances; he afterwards mortgaged other estates and became insolvent, A bill was filed by his assig- nee under the insolvency against the incumbrancers on all the estates and against the tenant in tail, pray- ing SLTi account of wbat was due on the several incum- brances, that their priorities might be ascertained, and for sale or redemption. A decree was made in the suit, directing that on the plaintiff and the defendant, the tenant in tail, paying what was due on the respec- tive incumbrances, the unsettled estates should be conveyed to the party redeeming, and that the settled estates should be conveyed on the trusts of the settlement, and in default of redemption that the bill should be dismissed.: — Held, by the Lord Chancellor, that the decree for redemption being permissive only as against the tenant in tail was>correct, and that a decree for sale would have been improper. Gliappell V. Reee, 1 De Gex, M. & G 335. MORTMAIN. £See title Charity.] A bequest of the proceeds of shares in a joint- stock banking company, formed under a deed of Settlement, and vkieh possessed freehold and copy- hold property, does not come within the Statute of Mortmain., 9 Geo 2. c. 36. Myers v. Perigal, 21 Law J. Rep (n.s.) C.P. 21,7; 11 Com. B. Rep.flO, 3E 490 MORTMAIN. A testator bequeathed shares in a joint-stock bank- ing company to his wife for life, and directed that after her decease the shares should be sold, and the proceeds invested in government securities for the benefit of certain charities. By the deed of settle- ment of the company, the directors were empowered to invest their surplus capital on mortgage, or in the purchase of freehold, copyhold and leasehold lands, and from time to time to call in and dispose of the same, and re-invest the proceeds in like manner; and it was declared that all the property of the company, as between the shareholders thereof, and as between their respective real and personal representatives, should be deemed personal estate. At the testator's death, the property of the bank consisted (among other things) of freehold and copyhold hereditaments and monies secured upon mortgage of real estate : — Held, upon appeal, reversing the decision of the Court below, and in accordance with the certificate of the Court of Common Pleas in the above case, that the bequest of the shares to the charities was a valid legal bequest within the 9 Geo. 2. u. 36. Myers v.Perigal, 22 Law J. Rep. (n.s.) Chanc. 431 ; 2 De Gex, M. cSc G. 599 : overruling 18 Law J. Rep. (n.s.) Chanc. 186; 16 Sim. 533. A testator bequeathed the residue of his estate to trustees, to be purchased into the funds, for the following purpose, viz. for opening new schools, sub- scribing to those already opened in England, Scot- land, Ireland, and elsewhere, and purchasing land to be let out to the poor at a low rent, such rent to be applied to any benevolent purposes his trustees might think proper : — Held, that the residue was divisible into two equal parts, and that one of such parts was applicable to the purposes of education, according to a scheme to be settled by the Court, and that the trusts of the other part were void under the Mortmain Act. Craftcm v. Frith, 20 Law J. Rep. (n.s.) Chanc. 198; 4 De Gex & Sm. 237. Shares in incorporated companies having interests in land, as canal companies, railway companies, &c. constituted by acts of parliament, under which the shares are declared to be personal estate, are not within the Mortmain Act, 9 Geo. 2. c. 36. Askton v. Lord LamgdaU, 20 Law J. Eep. (n.s.) Chanc. 234; 4 De Gex & Sm. 402. Debentures given by incorporated companies hav- ing interests in land, which merely contain a personal obligation, and do not convey the undertaking, tolls, &c. to the holder, are not within the Mortmain Act. Ibid. Shares in an unincorporated banking company, which was authorized to hold lands by way of mort> gage, and might have had interests in lands, and which had been constituted by deed of settlement, under which the shares were declared to be personal estate, held not to be within the Mortmain Act. Ibid. Railway scrip is not within the Mortmain Act. Ibid. Mortgages given by a railway company of the undertaking and tolls, rates and sums arising by virtue of the act of parliament under which it was constituted, held to be within the Mortmain Act. Ibid. Where exceptions to a Master's report relate only to matters of law, and not to matters of fact the Court will not make any order on the exceptions, but express its decision by way of declaration. Ibid. It was conceded by the parties interested in op- posing it, that a bequest to the Commissioners for the Reduction of the National Debt, to be applied in reduction of the National Debt, was a charitable use. Ibid. J O, by his will, directed his trustees, after the decease of his wife, to transfer funds of the value of 8,000i. sterling to the corporation of G, and a like sum of BjOOOi. to the corporate bodies of C, T 'nnd W, upon trust in each case thereout to raise 1,300/. and lay out the same in the foundation, building, and furnishing a hospital or almshouse for the city of G, and each of the other places, C, T and W, in the event of any land being given or granted to the corporation for the purpose of his charity within the period of ten years next after his decease, under the provisions of 9 Geo. 2. c. 36. And he declared that no part of the trust monies should be applied in the purchase of land; and in the event of no land being granted within the ten years, then the prin- cipal trust monies incapable of being applied were to fall into his residuary estate. Land as a site for the hospital was conveyed to the corporation of 6 and to each of the corporate bodies of C, T and W shortly before the expiration of the ten years, but the deed conveying the land to the corporation of G was not enrolled until five days after the ten years had expired :^ — Held, that the deeds convey- ing the land were good under the 9 Geo. 2. c. 36. That a bequest made on an inducement to third parties to convey land in mortmain, and not to take effect unless land should be conveyed accordingly, was void : and that a bequest which tended directly to bring fresh lands into mortmain was void ; and that a bequest of money to be expended in the erec- tion or repair of buildings was void, unless an inten- tion was clearly expressed that the money was to be expended upon land already in mortmain. Trye v. the Corporation of Gloucester, 21 Law J. Rep. (N.s.) Chanc. 81; 14 Beav. 173. A testator, a portion of whose property consisted of railway shares, bequeathed it to certain persons for their lives, and after the decease of the survivor to the British and Foreign Bible Society and the Home Missionary Society : — Held, that the railway shares must be sold and the produce invested in stock; and that the question whether the railway shares were within the provisions of the Mortmain Act was premature. Thornton v. Ellis, 21 Law J. Eep. (n.s.) 714; 15 Beav. 193. A testator gave a legacy to "the Society for Build- ing Churches." Uponarrference,theMasterreported that the society meant was " The Incorporated Society for Promoting the Enlargement, Building and Repairing of Churches and Chapels" : — Held, that the bequest was not void under the Statute of Mortmain. The Church Building Society v. Barlow, 22 Law J. Rep. (n.s.) Chanc. 339; 3 De Gex, M. & G. 120. A testator by his will directed that a sum should be invested in the names of trustees, upon trust to pay the income for the maintenance of a school to be established in the parish of W ; and declared that this sum should not be laid out in the purchase of lands, his expectation being that other persons would furnish lands and buildings for that purpose : ^Held, that the bequest was valid, and not void under the Mortmain Act. Cawood v. Thompson, MORTMAIN. 491 22 Law J. Eep. (n.s.) Chanc. 835; 1 Sm. & G. 409. A testatrix directed her executors, as opportunity migbt offer, to apply the residue of her personal estate, or such parts as by law might be legally applied to such purposes, in the endowment of dis- trict churches and chapels in populous places, so that the poor might have the Gospel preached to them; and the testatrix expressed her wish that a preference should be given to those parishes the churches of which were under the patronage of the trustees of her late friend the Eev. Charles Simeon, and other similar trusts: — Held, not to be a gift within the Statutes of Mortmain. Edwards v. HaU, 22 Law J. Rep. (n.s.) Chanc. 1078. Bill filed to set aside a deed by which an annuity, charged on real estate, was granted to trustees for charitable purposes. The deed was duly enrolled within six months, and executed eleven years before the death of the grantor, but after its execution it was left in tlie custody of the grantor, and the amount of the annuity was not paid during his life, although he contributed largely to the charities intended to have been benefited. The existence of the deed was not made known to the objects of the charity for ten years, at which period a cheque was given by the grantor for the arrears of the annuity, but the cheque was returned upon an alleged understanding between the parties to that effect : — Held, upon these facts and the evidence adduced in support of the bill, that an agreement or design existed among the par- ties to the deed, that payment of the annuity was not to be enforced during the .life of the grantor; that it was not necessary such design should be expressed on the face of the deed in order to bring the case within the St£(tute of Mortmain; and that the deed was, therefore, invalid; but as the litigation was caused by the grantor himself, the costs were to be paid out of the fund. Way v. East, 23 Law J. Rep. (n.s.) Chanc. 209; 2 Drew. 44. By his will a testator gave a reversionary interest in personal estate to the mayor, jurats, and com- moiiMlty of the town of F, to be applied by them in such manner and for such purposes as they should judge to be most for the benefit and ornament of the town : — Held, upon appeal, affirming a decree of the Master of the Rolls, that this was a good charit- able gift, although the discretion given to the trustees might extend to an application of the fund in viola- tion of the statute 9 Geo. 2. c. 36. (the Mortmain Act), the presumption being that where trustees of a testamentary gift for charitable purposes have, by the terms of the gift, a discretion to apply the bene- fit of the gift either in a )vay which the law allows or which the law disallows, they will act in a lawfiil manner. The Mayor, Aldermen and Bwrgesses of Pamershaiih v. Ryder, 23 Law J. Rep. (n.s.) Chanc. 905; S De Gex,M. & G. 350; 18 Beav. 318. A testator, by his will, gave all the residue of his personal estate (including leasehold property) to the mayor and corporation of S, upon trust to employ the income as they might think fit, in such manner as might best promote the study and advancement of the sciences of natural history, astronomy, anti- quities, and classical and oriental literature, in the town of S, such as by forming a public library, botanic garden, observatory, and collections of objects in connexion with the above sciences; such library, garden, and collections to be formed and kept at his leasehold houses in S : — Held, that this bequest was valid under the 8 & 9 Vict. c. 43. Barriscm v. the Mayor, (Sec. of Southampton, 23 Law J. Rep. (h.b.) Chanc. 919; 2 Sm. & G. 387. A testator gave 400i. to three trustees to invest in government or on real securities and to pay the income to poor persons of the town of R, and after the death of the survivor of the trustees, he gave the sum and the securities on which it might be invested to the corporation of R, whom he appointed trus- tees, to apply the income in manner aforesaid for ever. The testator afterwards empowered his trus- tees to apply the capital and income for or towards establishing any almshouses for the benefit of poor persons in R as they might think advisable; and added, that it was his wish that his trustees should commence the building of such almshouses as soon as might be after his death : — Held, that the legacy of 400i. was void within the Statute of Mortmain. Martin v. Wellstead, 23 Law J. Rep. (k.s.) Chanc. 927. A testatrix bequeathed to a charity the residue of her personal estate, including a sum secured on mortgage of the town hall rates of Birmingham. These rates were by act of parliament authorized to be levied upon theoccupiersof houses, and remedies were given for recovering the same by summons before a Justice of the Peace, who was empowered to issue a warrant to levy the rate by distress of the occupiers' goods and chattels and to sell the same, and in case of there being no sufficient distress, to commit the defaulting party to prison : — Held, that this mortgage was one " affecting" real estate within the Mortmain Act (9 Geo. 2. c. 36), and therefore that the gift of it to the charity was void. Thornton V. Kempson, 23 Law J. Rep. (n.s.) Chanc. 977; Kay, 592. A, having the intention of disposing of the bulk of his property after his death for charitable purposes, consulted a solicitor, who told him that if he should leave it by will upon trust for these purposes, the will would be void, by reason of the Statute of Mortmain ; and that, if he should leave it by will to his wife, B, without any trust expressed, but should impose on her an obligation to employ it for those purposes, the bequest to her would be void. A, after this advice, by a will, bequeathed all his property to B. B, from various conversations with A, knew of his wishes and intentions, and knew that he had an expectation that, if he left his property to her, she would employ it in carrying out his intentions. A bill was filed, by some of the next-of-kin of A, against B, for the purpose of having the bequest to her de- clared void, on the ground that the property was sub- ject to a trust prohibited by the Statute of Mortmain. No evidence was given that A had imposed any ob- ligation on B. B, by her answer (after an admission to the above effect), denied that any obligation had been imposed on her by A, or that she had made any promise to A. The bill was dismissed. Lomax v. Mpley, 24 Law J. Rep. (n.s.) Chanc. 254; 3 Sm. & G. 48. The doctrines of the Court as to secret trusts to evade the Statute of Mortmain. Ibid. The shares of incorporated companies holding land are real estate in the absence of any legislative decla- ration to the contrary, and as such are within the 492 MORTMAIN— MUNICIPAL CORPORATION. provisions of the Bfortmain Act. Ware v. Cwniber- lege, 24 Law J. Rep. (n.s.) Ghanc. 680; 20 Beav. 5113. .\ testator derised freehold estate to the then minister of the Roman Catholic chapel at L and his successors, ministers of the said chapel-, for ever. He also gave to T W, minister of the Roman Catholic chapel at K, and to his successors, for ever, certain other estates; and he further gave to the officiating minister of the chapel at Kendal the rents and profits of two estates for seven years next after his decease : Held, that all these devises were void, they being intended solely for the benefit of the church, and not of the individual. Thomber v. Wihan, 24 Law J. Rep. (x.s.) Chanc. 667; 3 Drew. 245. A testator, by his will, executed more than three calendar months before his death, devised two free- hold houses in Brighton to trustees, in trust to sell and invest the proceeds and pay the income to his wife for life, and at her death to pay over the prin- cipal to the treasurer for the time being of the "In- corporated Society for Promoting the Enlargement, Building and Repairing of Chm-ches and Chapels," to be applied to the uses and purposes of that so- ciety : — Held, (affirming the decision of Wood, V.C) that such a gift was not within the scope of the 43 Geo. 3. c. 108, and could not be sustained as a gift of the proceeds of sale to the extent of 500'/., but was void under the Mortmain Act, 9 Geo. 2. c. 36. The Incorporated Church BuiLdi-ng Society v. Coles, 24 law J. Rep. (x s.) Chanc. 713; 5 De Gex, M. & G. 324; 24 Law J. Rep. (N.8.) Chanc. 103; 1 Kay & J. 145. The intent of the act, 43 Geo. 3. u 108. was to pro- tect a gift for one specific church, chapel, &c., and not a vague and general gift for the enlargement, building and repairing of churches generally^ Ibid. A bequest of 4,500/. to the mayor and corporation of Newcastle, in trust for the purpose of establishing a hospital for twelve poor widows, with a monthly allowance of 20s. to each, the surplus to be applied in providing for them coals and clothing annually, or any other necessary they may require. The above bequest to be carried into eifect at the death of the testator's sisters, or during their lives if they should think proper, in which case they should be allowed to name the first inmates: — Held, that the Court could not execute this trust without providing per- manently a house for a hospital, and therefore the gift was void. Dunn v. Bamas, 1 Kay & J. 596. Nor was the gift rendered valid by proof that the testator was a member of the corporation of New- castle, and that he knew that the corporation had been in the habit of supplying land for the purposes of esta- blishing charities which were endowed by like be- quest, for the will should point specifically to land already in mortmain as that to which the gift was intended to apply in order to avoid the effect of the statute. Ibid. A bequest of a legacy to be applied towards esta- blishing a school at A, provided a further sum could be raised in aid thereof, if necessary, Held, to im- port an intended outlay of the sum in building a school-house at the place referred to; and, therefore, to be a void bequest within the Statute of Mortmain. Attorney General v. HuU, 9 Hare, 647. A bequest of shares in a canal navigation company for charitable uses, held to be good; but-a bequest of securities upon the tolls, rates and duties, and upon the general estate of the company, created by assign- ment thereof by way of mortgage, as being a charge upon land, — held to be void under the statute 9 Geo. 2. c. 36. In re JUmgliam's Ti'ust, 10 Hare, 446. Gift of stock **for the establishment of a charity school" held void. In re Clancy, 16 Beav. 295. Tothill Fields Improvements bonds held not to be within the Statute of Mortmain. Buniimg v. Mar- riott, 19 Beav. 163. MUNICIPAL CORPORATION. (A) Charter op iNooBPORATiorf. (By QOAMFICATIOH OP MEMBERS. (C) Election op Members. (a) Aldermen amd Councillors. (b) Votiiu) Papers. (D) Burgess Roll. (a) Who to he on. (h) Revising. (c) Signing. (E) Appointment, Salary and Duties of Officers. (F) Compensation to Officers. (G) Towx Clerk. (H) Bye-laws. (I) Borough Fund. (A) Charter of Incorporation. A charter of King James the Second granted and confirmed to the corporation of the master pilots, &c. of Newcastle-upon-Tyne, " that all persons, as well subjects as strangers born, being owner or owners of any goods, &c. brought in any ship from beyond the seas into the river Tyne, or the creeks or members aforesaid, or any creek or member belonging to the said port of Newcastle-upon-Tyne, shall from time to time, as often as such goods shall be brought in, pay an ancient duty heretofore lawfully, usually, and accustomably paid to the said company, &c. called primage, that is to say, id. for every tun of wine, &c and all other goods, &c. rated and accounted by the tun (fish killed and brought in by Englishmen only excepted), and Zd. for every last of flax, &c. or any other goods, &c. rated and accounted by the last, in manner following, that is to say, aliens and strangers born, and all other such person or persons which with their said ships or vessels shall arrive within the said port or in any of the said creeks or members, and not belonging to the same, before they depart with their ships or vessels from the said port or from the said creeks shall pay the duties aforesaid for and in the name of primage as is afore- said ; and every free merchant and other inhabitant of Newcastle aforesaid arriving with their said ships or vessels within the said river of Tyne shall pay the duties aforesaid within ten days after the landing of the said goods as aforesaid upon lawful demand." At the close of the charter there was a clause con- firming to the master pilots " all lands and privilegesj ancient duties and profits which they had theretotbre lawfully used and enjoyed." Then followed imme- diately a proviso "that the several and respective sums thereby granted or mentioned to be gtanted MUNICIPAL CORPORATION. 493 or confirmed, &c. were to be received and taken in lieu of all other duties, &c. theretofore granted or received, and that no further or other duties thould at any time be demanded, paid, or re- ceived on account thereof." The defendants below ve e natives and merchants of Sunderland, which wa< a creek or member of the port of Newcastle- upon-Tyne. They- brought their own goods by sea in their ships into Sunderland, and refused to pay the primage on such goods claimed by the cor- poration, who thereupon brought an action against them to recover it. On the trial the corporation put in the charter, and also gave evidence of ancient and modern usage, that all persona, including those resi- dent in Sunderland, who being owners of goods brought them into Sunderland in ships from beyond sea, had paid primage. The defendants objected that the charter did not impose the liability to the payment of primage on Sunderland merchants bring- ing their goods by ship into Sunderland, and that the evidence of usage was not admissible to aid in the interpretation of the charter : — Held, that the cor- poration were not precluded by the charter from claiming primage in respect of goods imported into Sunderland by Sunderland merchants; that the char- ter was not incompatible with such claim, and that evidence of usage was admissible in support of it. Bradley v. the Master Pilots amd Seamen of New- caatle-npon-Tyne, 23 Law J. Kep. (n.s.) (^.B. 35; 2 E. & B. 427. (B) Qdalifioatiou of Members. The name of the defendant, an inhabitant house- holder of a borough, appeared in the rate-books of the borough of 1848-9, in respect of the occupation of a public-house, for which also he paid his share of the rates in 1848. On the 14th of August 1848 he let the public-house, but retained in his occupation a warehouse that had formed part of the premises, and on the 4th of September 1848 gave notice to the overseers of his having so let the hovise, and claiming to be rated in respect of his occupation of another house in the borough. His name, however, was not regularly inserted in the rate-books in respect of the latter house until March 1849, nor did he pay any rate in respect of it until the 21st of September 1848, and upon the revision of the burgess lists for the year 1848-9, his name was objected to and struck out: Held, in an action for penalties, under the Municipal Act, S & 6 WiU. 4. c. 76. s. S3, for acting as a town councillor on the 14th of February 1849, without being duly qualified, that the defendant con- tinued entitled to be on the burgess list of the bo- rough for the year 1848-9, and therefore qualified in that respeet to act as a councillor. Wlwlley v. Bra/m- well, 20 Law J. Rep. (n.s.) Q,.B. 53 j 15 Q-B. Eep. 775. The question in such cases is the qualification with reference to his title to be upon the burgess list and not the burgess roll. Ibid. By section 28. of the Municipal Corporations Act (5 & 6 Will. 4. c. 76), no person is qualified to be elected a councillor during such time as he has any share or interest in any contract or employment with, by, or on behalf of the council : — Held, that a party who had entered into an existing contract for profit with the council was disqualified, although by reason of its not being under seal he could not have sued the corporation upon the contract. Megina v. Francis, 21 Law .1. Rep. (n.s) Q.B. 304; 18 Q.B. Rep. 526. By 7 Will. 4 & 1 Vict. «. 78. =. 23. all applica- tions for a qvko wwrrwnta to question the elections of corporate oflicers are to be made before the end of twelve calendar months " after the election, or the time when the person against whom application is made shall have become disqualified": — Held, that where a party had entered into a continuing contract with the council, the disqualification continued during the existence of the contract, and that a gao war- ramto might be applied for, notwithstanding more than twelve months had elapsed from the time of the election, or from the time when the disqualification first attached. Ibid. At an election for two councillors for St. John's Ward, in the borough of Blackburn, T was one of the candidates elected. Some of the burgesses who voted for T; after they had voted, received from T's agent a ticket, and were directed to go and did go to a particular inn, where they were shewn into a room, and upon presenting the ticket received the sum of 2s. 6rf., and from another agent of T. one or two id. tickets for ale and spirits, as a gift. Others of the burgesses entitled to vote at the said election, and who voted for T, signed the voting papers required to be handed in not in their real names, but in the names by which they were by mistake described on the burgess roll. The grounds of objection in a rule nisi for a quo warramto information against T were, the reception of votes for T from persons not entitled to vote; or who fraudulently personated persons who were entitled to vote; and the reception of votes from persons who had been bribed to vote for T : — Held, upon the first ground, first, that as the persons were entitled to vote, the objection taken was answered, the misnomer in the burgess roll being cured by the 142nd section of the S & 6 Will. 4. c. 76; and, secondly (supposing the objection had been raised), that the fact of the burgesses having voted in wrong names did not vitiate their votes; and, by Lo^-d Ca/mp- iell, G.J., upon the second ground, that as there ap- peared to be evidence from which a jury might have inferred an agreement with the voters before voting that they should receive 2j. 6d. for their votes, that would have been a ground for making the rule abso- lute. Eegina v. Thwaites, 22 Law J. Rep. (n.s.) as. 288; 1 E. & B. 704. A, who had contracted with the council of a bo- rough, acting as local board of health, for the per- formance of certain public works in the borough, bought of the defendant, who was a tradesman, arti- cles required in the course of these works : Held, that this was not such a contract or employment as disqualified the defendant from holding a corporate office under the 6 & 6 Will. 4. c. 76. s. 28. Le Femre V. Zamlcesier, 23 Law J. Rep. (n.s.) Q.B. 264; 3 E. & B. 530. The defendant and three other persons had con- tracted with the Commissioners under a local act to sink an artesian well for the purpose of supplying the town with water. This contract and the works were afterwards assigned over to the Commissioners by deed, who thereby released the contractors, and covenanted to pay them a certain sum which had been already incurred, and a further sum of 850/. in case the Commissioners should either abandon the works or complete them, and obtain a specified sup- 494 MUNICIPAL CORPORATION. ply of water from the well. The contractors also covenanted with the Commissioners for quiet enjoy- ment, and not to molest them in the completion of the works. All the powers and contracts of the Commissioners were transferred to the council, acting as local board of health, by the Public Health Act: . Held, that this contract was " a security for the payment of money only" within the meaning of the 5 & 6 Vict. c. 104. s. 1, and did not, therefore, dis- q\iKlifv the defendant from holding a corporate office under the 5 & 6 Will. i. c. 76. s. 28. Ibid. Qiuere whether section 28. of the 5 & 6 Will. 4. c. 7(J. disqualifies for the office of mayor as well as thiit of alderman or councillor. Ibid. Sembh — that a contract with the town council acting as local board of health in a corporate district operates as a disqualification under the Municipal Corporations Act. Ibid. The 5 cSc 6 Will. 4. c. 76. s. 28. enacts that no person shall be qualified to be a councillor unless (inter alia) he " be rated to the relief of the poor in such borough upon the annual value of not less than 15/." — Held, that this refers to the sum insert- ed in the rate-book as " rateable value," and not as "gross estimated rental." Baker v. Marsh, 24 Law J. Rep. (n.s.) Q.B. 1; 4 E. & B. 144. (C) Election ojf Members. (o) Aldermen and Councillors. At a meeting of the town council a minority of the councillors present delivered voting papers to the mayor for certain persons to be elected aldermen. The mayor and the majority of the town council- lors had been advised that the day was not the proper one for the election. The mayor conse- quently declined to proceed with the election, and no election was declared. It was, in fact, the duty of the council to have proceeded to the election of aldermen on that day, had they known the law : — Held, that the act of the minority was not the act of the town council ; that the election had not been part held, but that there had been no election; and that, consequently, a mandamus might issue calling upon the council to proceed to elect aldermen. Re- gina v. the Mayor, &c. of Bradford, 20 Law J. Rep. (N.s.) Q,.B. 226; 2 L. M. & P. P.C. 85. M was elected a town councillor of the borough of B without his knowledge or consent, but being informed that he would be liable to a fine if he refused to serve, he, on that ground, agreed to accept the office, and made the necessary declaiation. No application was made to him to resign the office. A rule nisi for an information in the nature of a quo warranto to shew by' what authority he held the office having been obtained, he, as soon as he heard of it, expressed his willingness to resign, and allowed the rule to be made absolute without supporting the validity of his election. Begina v. May, 20 Law J. Eep. (N.s.) Q.B. 268; 2 L. M. & P. P.C. 144. Held, that he was not liable for costs if within a week he made a valid resignation, or if an informa- tion in the nature of a quo warranto were filed at the expense of the prosecutor, if M at his own ex- pense within a week after the filing of the informa- tion put in an invalid disclaimer ; but that, failing these alternatives, the rule was to be ma,de absolute with costs. Ibid. S and H were rival candidates for the office of town councillor of a borough. An objection was taken at the election to the validity of certain votes in S's favour, which turned the election. The mayor overruled the objection, and S took his seat. The rival candidate obtained a rule nisi for an in- formation in the nature of a j»o warranto against S. The latter thereupon declined to shew cause, and expressed a willingness to resign his seat : — Held, that S was liable to the costs of the information, as he had been a candidate for the office. Begina v. Sidney, 20 Law J. Eep. (h.s.) Q.B. 269 ; 2 L. M. & P. P.C. 149. At an election for two councillors of a borough on the 1st of November 1861, A, B and C were candi- dates. A and B had the greatest number of votes, and were returned as elected ; but B was disqualified, and the voters had notice of his disqualification. In July 1852 judgment of ouster was signed in a quo warranto filed against B. On the 26th of October 1852, C, by a notice, required the council to admit him as a councillor, and to administer to him the declaration required by the 5 & 6 Will. 4. c. 76. s. 50. On the 8th of November 1852, C made the declara- tion, and on the 9th of November voted at the elec- tion for mayor, when his vote was rejected : — Held, that C was elected on the 1st of November 1851, and ought to have been then returned; and that having made the declaration before the 9th of No- vember 1852, he was entitled to vote at the election of mayor. Begina y. Cooks, 23 Law J. Rep. (n.s.) Q.B.i33; 3 E. &B. 249. Section 50. of the 5 & 6 Will. 4. e. 76, requiring persons elected councillors to make the declaration within five days after they have notice of their election, applies only to persons who are returned as elected ; and the live days are to be computed from their notice of their return. Ibid. (J) Voting Papers. At the election of a town councillor, a candidate, whose place of residence was " Newmarket Boad" was described in the voting papers as of " Gonville Place." " Gonville Place" was situated in a dif- ferent ward from "Newmarket Road," but had until a few days previous to the election been the residence of the candidate : — Held, that that was not an inac- curate description of a place stated in a voting paper which was cured by section 142. of the 5 & 6 Will. 4. c. 76, which applies only to the inaccurate descrip- tion of a light place, not to the accurate description of a wrong place. Begina v. Coward, 20 Law J. Rep. (n.s.) Q.B. 359; 16 Q.B. Rep. 819. The 5 & 6 Will. 4. c. 76. s. 32. enacts, that the election of councillors shall be by voting papers " containing the Christian names and surnames of the persons voted for, with their respective places of abode and descriptions"; — Held, that the words "place of abode" mean "place of residence," and that voting papers describing the candidate as of his place of business are void, even though it be found as a fact that he is as well known by that description as by his place of residence. Begina v. Hammond, 21 Law J. Rep. (n.s.) Q.B. 153; 17 Q.B. Rep. 772. Where at an election of councillors for a borough , the voting paper is signed with the surname and the hiitial of the Christian name of the burgess voting, it is a sufficient compliance with section 32. MUNICIPAL CORPORATION. 495 of the 6 & 6 Will. 4. c. 76. MeginOrV. Avery, 21 Law J. Rep. (n.s.) Q.B. 428; 18 Q.B. Rep. 676. The voting paper deacribed the property in respect of which a burgess voted, as " Pilton Street." He was described in the burgess roll as " of Pilton,'' and his qualifying property " House, in the Street." It appeared in evidence that Pilton consisted of only one main street, which was called " Pilton Street,'* or "the Street" indiscriminately: — Held, that the voting paper was sufficient. Ibid. In the voting paper handed in at the election of a councillor for a borough, the voter described himself " of King Street, in the parish," &c. In the burgess roll he appeared to be rated for a house in Minster Street. It appeared that King Street and Minster Street joined, and that in his business as a mercer the voter occupied jointly a house numbered in King Street, which was the corner house where the two streets met, and the adjoining house in Minster Street. They were separate houses, and had a dis- tinct entrance door in each street ; and in his bills the voter's place of business was described as of No. 8, King Street and 63, Minster Street : — Held, that as the houses were occupied as one, the descrip- tion in the voting paper was such as would be com- monly understood within the meaning of the 5 & 6 Will. 4. c. 76. s. 142, and, therefore, that the vari- ance between it and the burgess roll was no valid ground of objection under the 33rd section of the same act. Regina v. Gregory, 22 Law J. Eep. (n.s.) Q.B. 120; IE. &B. 600. (D) BuRQEss Roll. , (o) Who to he on. ' By a local act of the borough of K, owners of dwelling-houses within the borough of a less yearly rent than 10/. were to be rated to the poor instead of the occupiers. The overseers were, by section 2, empowered to compound with the owners at one- third the rate where the *' annual rent and value" did not amount to 7 1., and at one-half the rate where the annual rent or value amounted to 11. but did not amount to Wl. Sect. 15. provided that nothing in the act was to prejudice or affect any municipal or parochial franchises of the occupiers, but that they might claim to be put on the burgess roll as if that act had not passed, and the occupiers had been fated and assessed to the poor in their own names. M claimed to be put on the burgess roll of the borough of K in respect of a house which he occu- pied as tenant at a yearly rent of 11. The house was stated in the poor-rate to be of the gross estimated value of &l. 10*., and of the rateable value of 61. is. His landlord had compounded with the overseers at one-third the poor-rate, and had duly paid his com- position. The borough-rates of K were paid out of the popr-rates : — Held, that under the local act the criterion for composition was the rent which could fairly be obtained when the premises were let, or the value for which they could be let when they were vacant; but that the title of the occupier to be put upon the burgess roll could not be effected by any mistake in the amount of the composition between the owner and overseers ; that the overseers were en- titled to include the borough-rate in the composition as part of the poor-rate; and that payment of the composition was equivalent to the payment of the borough-rate. Regina v. the Mayor and Assessors of Kidderminster, 20 Law J. Rep. (n.s.) Q.B; 281; 2L. M. &P. P.C. 201. (5) Revising. A notice of claim, made under section 17. of the 6 & 6 Will. 4. c. 76, to be Inserted on the burgess roll of a municipal corporation must state the parish in which the property is situate in respect of which the claim is made> Regina v. the Mayor and Asses- sors of Kidderminster, 20 Law J. Rep. (n.s.) Q.B. 281; 2 L. M. & P. P.C. 201. A person whose name had been omitted by mis- take from the list of burgesses of a borough sent in a claim to be inserted on the bnrgess list. He s'gned the claim with the initials of his Christian names and with his surname in full. He did not attend before the mayor and assessors to support his claim, hut the overseer who had omitted the name by an over- sight stated that the claim was good, and shewed to the court of revision the poor-rate book contaiTiing the names of the claimant. There was no other person of the same name in the borough, and the court of revision were well acquainted whh the per- son and handwriting of the claimant. They, how- ever, rejected the claim, on the ground that the signature by initials of the Christian names was in- sufficient. The Court held, that the mayor and assessors had sufficient information as to the meaning of the initials to have warranted them in inserting ^the name of the claimant on the burgess list, and granted a mandamus to the mayor commanding him to insert the name on the burgess roll. Regi/na v. the Mayor of Hartlepool, 21 Law J. Eep. (n.s.) Q.B. 71; 2 L. M. & P. P.C. 666. If the burgess lists of a municipal corporation be defective and null, and the mayor and assessors decline to revise them, they are not bound to revise the lists of claimants who claim to be inserted on the burgess lists. In re the Mayor and Assessors of Harwich, 21 Law J. Rep. (n.s.) Q.B. 193; 1 Bail C.C. 13. The notice of objection to the name of a person being retained on the burgess list of a borough, given to the party objected to, was in the following form : — "To J B. I hereby give you notice that I object to your name being retained on the burgess list of the borough of H." The notice did not describe J B as he was described in the burgess list: Held, that the notice was sufficient under the 5 & 6 Will. 4. e. 76. ». 17. Regina v. the Mayor and Assessors of the borough of Harwich, 22 Law J. Rep. (h s ) Q.B. 216 ; 1 E. & B. 617 ; overruling s. o. 22 Law J. Rep. (n.s.) Q.B. 81; 1 Bail C.C. 95. (c) Signing. [See 16 & 17 Vict. c. 79. s. 14.] Under the Municipal Corporations Act, S & 6 Will. 4. c. 76. s. 15, each of the overseers, including the churchwardens, is bound to make out, sign and deliver the burgess list of the parish. Cla/rie v. Gant (in error), 22 Law J. Rep. (n.s.) Exch. 67; 8 Exch. Rep. 252. In an action for a penalty against a churchwarden for neglecting to sign the buigess list, though the declaration contained no averment that there were any persons in the parish entitled to be put on the burgess list, the Court, after verdict for the plaintiff; held the declaration good. Ibid, 496 MUNICIPAL CORPORATION. (E) Appointment, Salary and Duties of Officers. [See titles Bond, (B)— Coals] The Municipal Corporations Act, 5 & 6 Will. 4. c. 76. 3. 92. enacts, " That after the election of the treasurer in any borough, the rents and profits of all hereditaments, and the interest of all monies belong- ing to the corporation, shall be paid to the treasurer, and by him carried to the account of the ' Borough Fund,'' which fund shall be applied towards payment of the salary of the mayor, &c., and of the respective salaries of the town clerk and treasurer, and of every other officer whom the council shall appoint :" ^Held, that an officer appointed by the council with a salary cannot maintain an action of debt against the corporation for arrears of such salary. Addison V. the Mayor, &e. of Preston, 21 Law J. Rep. (n.s.) C.P. 146; 12 Com. B. Rep. 108. The Municipal Corporations Act, 5 & 6 Will 4. u. 76. B. 58. directs the council of every borough every year to appoint a treasurer, and to take such security for the due execution of his office as they shall think proper. The treasurer, by section .60, is to account to the council, at such times during the continuance of his office, or within three months after the expiration of his office, and in such manner as the council shall direct. By the 5 & 6 Vict. c. 89. s. 6, the treasurer, instead of being appointed annually, is to hold his office during the pleasure of the council, but no alteration is thereby made in the nature or duties of the office. M had, before the 6 & 7 Vict. c. 89, been elected treasurer of a borough for a year, and was ordered by the council to render an account of cash in his possession at every quarterly and adjourned meeting, and at any special meeting, if required. The defendant entered into a bond as surety for the due performance of his duty by M " during the whole time of his continuing in the said office in consequence of the said election, or under any annual or other future elections of the said council " : — Held, £rst, that the council might legally take such security to remain in force under any number of successive elections; and, secondly^ that the liability of the surety was by the terms of the bond extended to a continuance in office by M under an election during the pleasure of the council^ and that there was no alteration in the time or mode of accounting, by reason of his holding the office for an indefinite period, which would discharge the surety. Th£ Mayor, <&c. of Berwick-npon-Tweed v. Oswald; The Same v. Benton; and The Same v. DoUe, 22 Law J. Rep. (n.s.) Q B. 129; 1 E. & B. 295. To a declaration in covenant on this bond, the defendant pleaded that after the making of the bond, and before any of the breaches of covenant alleged, the said M and others as his sureties executed and delivered to the plaintiffs another bond (to the same effect as that declared upon) in full satisfaction and discharge of the said bond in the declaration men- tioned, and of all covenants, &c. therein contained, and that the plaintiffs then accepted the said other bond in full satisfaction and discharge of the said bond in the declaration mentioned and of all cove- nants, &c. : — Held, on demurrer to this plea, that it wasnot good either by way of accord and satisfaction, or of release. Ibid, The 102nd section of the Municipal Corporations Act, S & 6 Will. 4. c. 76, provides that it shall not be lawful for the clerk to the Justices of a borough to act in the prosecution of any offender committed for trial by the Justices to whom he is clerk ; "and any person being an alderman, or councillor, or clerk of the peace of any borough, who shall act as cleik to such Justices, or shall otherwise offend in the pre- mises," shall forfeit 100/. :_Held, that the penalty of 1 00?. did not attach to a clerk to the borough Justices (not being an alderman, councillor, or clerk of the peace of the borough) who acted in the prose- cution of offenders committed for trial by the borough Justices. Coe v. Lawrance, 22 Law J. Rep, (n.s.) Q.B. 140; 1 E. & B. 516. The 7 Will. 4. & 1 Vict. c. 78. s. 38. does not deprive the council of a city or borough of all con- troul over the government and regulation of the gaol or house of correction of the city or borough, which was transferred to the council by the 5 & 6 Will. 4. c. 76. Under the proviso in that section, the council have a discretionary power as to the salary to be paid to the governor of such gaol or house of cor- rection, and may refuse to confirm an order made by Justices of the city or borough, for the payment of an amount of salary which the council consider excessive. Segina v. the Mayor, cfcc. of York, 22 Law J. Rep. (n.s.) M.C. 73; 1 E. & B. 588. The 11 & 12 Vict. c. 14. s. 2. authorizes the estabhsnment of a " police superannuation fund " in boroughs, which is to be applied in paying suptr- annuation or retiring allowances to police-constables as follows : if a constable has served fifteen years he is entitled " to retire on a superannuation allowance^' equal to half his pay; but if he is then able and willing to continue to serve " he shall then receive'' his full pay *' and one-third also and no more of the above-named allowance from the superannuation fund." By section 3. "no police-constable shall be entitled to superannuation who is under fifty years of age," unless reported unfit for service : — Held, that a police-constable who had served fifteen years and continued in the force, but who was under fifty years of age, was not entitled to receive the reduced allow- ance under section 2. Mobson v. the Mayor, die. of Kmgstonr-wpon-EvU, 24 Law J. Rep. (n.s.) Q.B. 51 ; 3 E. & B. 986. The deputy day oyster meters of the City of London are entitled by immemorial custom to an account and equal distribution of all monies receiv- able by them for unloading the oyster boats withia the limits of the port of London; and that, not- withstanding they are deputies of a body, formerly the deputies of, and now represented by the corpora- tion of London (the measurers of all merchandise and wares brought into the port of London), and may consequently be subject to any alterations by the corporation in the rights and duties of their office. Tliom/pson, v. DaniA, 22 Law J. Rep. (N.fi.) Chanc. 507; 10 Hare, 296. The corporation cannot, either as representing its former deputies, or in its own corporate character, appoint deputy oyster meters, to hold their office upon terms different from those prescribed by the general body of the meters; but when the appointment is made by the corporation, the rights and duties inci- dent to the office attach upon the person whom tie corporation appoints. Ibid. MUNICIPAL CORPORATION. 497 A Court of equity will not charge a defendant with wilful default in respect of payments which the plaintiff has not any legal right to recover. Ibid. (F) Compensation to Oehoees. [To Coroners, see title County.] Where an oflacer of a corporation, who has been deprived of his oflSce, and is entitled to compensation under the Municipal Corporations Act, S & 6 Will. 4. c. 76, appeals against the amount awarded him by the corporation to the Lords Commissioners of the Treasury, the latter have, under section 66. of that statute, power to award him at their discretion either a gross sum or an annuity for life or for a less time, and to make the annuity commence at a future or at a bygone period. But they have no power to award such officer compensation in respect of any portion of the time during which he held such office. Segina V. the Mayor, &c. of Lichfield, 20 Law J. Eep. (n.s.) Q.B. 383; 16 Q.B. Hep. 781. On such an appeal by a town clerk discharged from office in January 1844, the Lords Commis- sioners of the Treasury by a Treasury minute stated that they had ascertained the annual average of profits of the office for the last five years before the passing of the "act, and had fixed the annual net amount of compensation at 50/. 18s., and subse- quently made an order averred to be made in pur- suance of such minute, and directed that the dis- charged town clerk should receive aa compensation 501. 18s. per annum, such annuity to commence on the 9th of September 1835; and they ordered a copy of the minute as well as of the order to be transmitted to the mayor. A copy of the minute was, in fact, transmitted to such discharged town clerk. The Court held, that in accordance with the intention of the Lords CommiBsioners the minute and the order might be read together; and as it then appeared to the Court that the Commissioners meant &hl. 18s. to be the full compensation for each year's loss of ofiice, and as they had awarded the annuity to commence on the 9th of September 1835, the town clerk not being dischai-ged until January 1844, that they had awarded compensation for a time in respect of which they had no power to give it, namel)', wliile the town clerk held office; and that the order, therefore, was bad 'pro tcmto. Ibid. (G) Town Cleeks. Although a town clerk, who has acted as soHcitor to a municipal corporation, cannot recover his pro- fessional costs against them in an action without prov- ing a retainer under the corporate seal, yet, where an order for payment of such costs has been made by the town council, the mere absence of a retainer under seal will not be a sufficient ground for quashing the order under 7 Will. 4. & 1 Vict. c. 78. s. 44, if the costs were incurred under resolutions of the town council. Regkm v. Prest, 20 Law J. Eep. (n.s.) Q.B. 17; 16 Q.B. Rep. 32. Where a town council, having laid a horough rate, proceeded to enforce its payment, but were threatened with litigation if they persevered, and in consequence directed their town clerk to consult counsel and take measures to ensure them against the threat, — Held, that the costs occasioned thereby were properly chargeable upon the borough fimd under 5 Si, Q Will. 4. c. 76. s. 92. Ibid. DlSESI, 1850—1855. A town clerk was appointed to hia office on the basis of a report which iixed his salary at 250/. a-year, and defined his duties to be (inter alia) " to prepare all precepts, orders, and other documents required for laymg borough rates, to abide by and see that all orders of the council are properly carried out, and all necessary documents prepared for so doing, and to act as the professional adviser of the mayor and council in the business of the council;" audit also provided, "that he be paid the usual professional charges for conducting or opposing bills in parliament, conduct- ing actions or suits, &c., preparing leases, &c,, and also be paid all travelling and other expenses out of pocket": — Held, that he was entitled to be paid all such extra costs as were hand fide incurred for the purpose of warding off threatened litigation, whether litigation did or did not in fact result. Ibid. By the 6 & 7 Vict. c. 18. the town clerks of boroughs are directed to prepare the lists of persona entitled to vote for the election of members of par. liament, and by the 55th section, " the expenses in» curred " by them in carrying the act into effect are to be repaid : — Held, that the words " expenses in- curred" are confined to costs out of pocket, and that a town clerk is not entitled to any fiirther remunera- tion for the time and labour he may devote to the performance of the duties imposed on him by the act. Hegina v. tJie Gfovernor and Guardians of the Poor of Kingstonron-Hull, 22 Law J. Eep, (n.s,) Q,B, 324; 2 E. & B. 182. (H) ByF.-iAws. [See Company.] The Mercers Company was one of the ancient guilds of the city of London, and by a charter of the 17 Ric. 2. the commonalty of the company were empowered to elect annually four wardens out of the commonalty. From 1391 to 1468 the practice was for the outgoing wardens to appoint their successors. Froni 1463 to the present time a select body had existed under the name of the court of assistants, who held their offices for life and supplied vacancies in their own body by self-election out of the whole com- monalty. The court of assistants had, since 1463, always elected the wardens from the commonalty of the company, and of late years exclusively from among the members of theirown court. No instance was to be found of wardens having ever been elected by the commonalty at large : — Held, that this usage was sufficient to warrant the inference of a bye-law delegating to the court of assistants the power of electing wardens; and that such a bye-law was valid, notwithstanding that it limited the right of election to a select and self-elected portion of the whole body. Regina v. Powell, 2S Law J. Rep. (ir.s.Y Q.B. 199; 3 E. & B. 377. (I) BoRouau Fund. [See ante, (6), and title Ale and Beerhouses.] The 92nd section of the statute 5 & 6 Will. 4. c. 76. enabled the surplus of the borough fund to be applied for the public benefit of the inhabitants and improvement of the borough . By an act subsequently passed, the corporation of the city of N were autho- rized to levy certain tonnage dues to be applied in a s,pecified manner, and after they were satisfied, the remainder to be applied to certain purposes, some of which were the same as those to which the surplus 498 MUNICIPAL CORPORATION— NEGLIGENCE. of the borough fund was made applicable; and dis- tinct accounts were directed to be kept of the tonnage dues and borough fund. The treasurer mixed the two funds at his bankers'. The corporation proposed to obtain an act of parliament for improving a river flowing through the city, and applied money from the funds at the bankers in paying certain expenses. An information was filed by the Attorney General, at the relation of rate-payers, praying an injunction - to restrain this application to parliament at the ex- pense of the borough fund, and the same was granted : and, on appeal from that decision, the appeal motion was refused, with costs. Attorney General t. the Corporation of Norwich, 21 Law J. Eep. (n.s.) Chanc. 139. The borough fund is a trust fund, and is so con- stituted by the Municipal Corporations Act. Ibid. Where a bill had been presented to parliament containing powers for the construction of waterworks, and for the doing of acts which, if done, would inter- fere with the stream of a river passing through a par- ticular borough town, so as to prevent the efficient action of the stream in removing the sewage of the town, and thus indirectly affect the value of the rate- able houses in the borough, the tolls of the market, and the other property forming the borough fund, and the corporation had applied part of the surplus of the borough fund in a partially successful opposi- tion to the passing of the bill, it was decided by one of the Vice Chancellors, that under the Municipal Corporations Act, the corporation, whether they had any surplus borough fund or not, were justified in applying their funds in opposing such a bill: and upon appeal it was held, that the payment of such expenses out of such a fund was not so clearly con- trary to the spirit of the 90th and 92nd sections of that act, which provides for the application of the surplus of the borough fund, as to warrant the Court in granting an interlocutory injunction to restrain such application. Attorney General v. the Mayor, Aldermen and Bv/rgesses of Wigcm, 23 Law J. Rep. (N.S.) Chanc. 429; 5 De Gex, M. & G. S2: Kay, 268. MURDER. [See BAIL—MANSLAUaHTER — WotlNDING.] Two prisoners were indicted for the murder of M P by violence. The third and most material count charged the murder to have been effected by blows inflicted by the prisoners on the 5th of Novem- ber, the 1st of December, and the Ist of January, and on divers other da3'3 between the Sth of Novem- ber and the 1st of January. On the trial evidence was given of assaults committed by the prisoners on the deceased, one on the Sth of November 1849, one about the end of November, and one about the 11th of December. The counsel for the prosecution, in his address to the jury, had opened these assaults as conducing to the death, but he added, that if he failed in proving that they had conduced to the death, they would furnish evidence of the animus of the prisoners. It was proved, by further evidence, that the death, which took place on the 4th of January, was caused exclusively by one particular blow inflicted shortly before the death; and as there was no evidence to shew that either of the prisoners had struck that blow, they were acquitted. Being subsequently indicted for having on the 10th of November 1849, assaulted M P, the prisoners pleaded a plea which, setting forth the indictment for murder, averred that the indictment included divers assaults against M P, and that the prisoners were acquitted upon the said in- dictment, and that the assaults included in the felony and murder charged upon them in the said indict- ment, were the same as those charged in the present indictment. The Crown replied, " that the prisoners were not acquitted of the felony and murder, includ- ing the same identical assaults charged in the present indictment." On the second trial, it was proved that evidence had been given on the former trial of the above-mentioned assaults, and no evidence was given on the second trial of any other assaults than of those proved on the first trial. On the second trial, as on the first, it was proved that the death was caused by the particular blow, distinct from these assaults. The Commissioner, before whom the second trial took place, told the jury that if they were satisfied that there were several distinct and independent assaults, some or any of which did not in any way conduce to the death of the deceased, it would be their duty to find for the Crown. The jury, thereupon, returned a verdict of guilty. On a case reserved, stating the above facts, it was held, by a majority of the Judges (eight to six) that the prisoners could not, on the trial for murder, have been convicted of assault under the statute 7 Will. 4. & 1 Vict. c. 8S. s. 11, as the assaults committed by them, although relied on by the Crown as conducing to the death, were proved by the evidence to have been unconnected with the homicide of the deceased; that, therefore, the general acquittal on the indictment for murder was no bar to a subsequent indictment for assault in respect of those very assaults. JRegima v. Bird, 20 Law J. Eep. (N.s.) M.C. 70; 2 Den. C.C. 94. MUTINY. [In the Navy, see 17 & 18 Vict. c. 6. And see title SOLDIEBS AND SaILOKS.] The Mutiny Act and the Articles of War apply only to Her Majesty's forces. Wolton v. Gavim, 20 Law J. Eep. (n.s.) Q.B, 73; 16 Q.B. Rep. 48. NEGLIGENCE. [See titles Carriee — Company — Master and Servant — Ship and Shippinh.] A having contracted with a railway company to construct a branch line, made a sub-contract with F & H to erect a bridge for part of the line. C, who was foreman to F & H, at u salary of 250i. a-year for attention to their general. business, con- tracted with F & H for a specific additional sum to erect the necessary scaffolding for the bridge, F & H furnishing the materials, the gas-lights included. One of the poles of the scaffolding rested upon a sleeper which was in the highway and above the level of the pavement. In consequence of the want of sufficient light to shew the obstruction, the plaintiff fell against the sleeper and was injured. Subsequent to the accident additional lights were put up at the expense of F & H :— Held, that NEGLIGENCE— NUISANCE. 499 F & H were not liable, but that the plaintiff's remedy lay against C. Knight T. Pox, 20 Law J. Kep. (N.S.) Exch. 9; 5 Exch. Rep. 721. The defendants, lessees of a ferry over a river, ran steamboats across for the conveyance of passengers and goods for hire. They also carried animals, but it was not their practice to take charge of the ani- mals when on board. The plaintiff having paid the usual fare, led- his mare on board at one side of the river, and remained with her until the steamboat reiiohed the other side. For landing the passengers and animals the defendants had provided a moveable slip, leading from the boat to a landing barge. The slip had a handrail which had been twice recently, to the defendants' knowledge, broken by the pressure of a horse on landing, and in the handrail was an iron spike which appeared whenever the rail gave way. The defendants had also been cautioned that the slip was unsafe. They, notwithstanding, con- tinued to use the slip, leaving the broken rail slightly tied up, so that it appeared sound. Over this slip the plaintiff proceeded to lead his mare towards the shore, but the mare pressed against the rail, the latter gave way, and the iron spike concealed in it injured her severely : — Held, that the defendants, as ferrymen, were bound to provide proper means for the embarkation and landing of the animals they carried for hire, and that, although the mare was' under the controul and management of the plaintiff, they were liable for the injury to her in consequence of their culpable negligence in allowing an improper slip to be used. Willonghly v. fforridge, 22 Law J. Rep. (n.s.') C.P. 90; 12 Com. B. Rep. 742. To sustain an action for an injury caused by the negligent driving of the defendant, the injury must have been caused by the negligence of the defendant only, without the negligence of the plaintiff contri- buting in any way to the accident. WUliams v. Biehards, .S Car. & K. 81. It is the duty of a person, who is driving over a crossing for foot passengers at the entrance of a street, to drive slowly, cautiously and carefully ; but it is also the duty of a foot passenger to use due care and caution in going upon such crossing, so as not to get among the carriages, and thus receive injury. Ibid, NEWSPAPER. [See Stamp.] NEW TRIAL. [See Pbaoiiob.] NIGHT POACHING. [See Game.] If persons to the number of three or more are together in one party armed by night in any land for the purpose of destroying game there, and the land consists of several closes, and one of such persons be in one close and another in a different close of the land, they may be convicted under the statute 9 Geo. 4. c. C9. s. 9. The conviction will not be affected by the circumstance that one of the closes is an inclosed field and another an open waste, and that each is in the occupation of different tenants. Eegina v. Ueizell, 20 Law J. Rep. (h.s.) M.C. 192; 3 Car. & K. 150. Where in a criminal case a witness is ill, and is attended by a surgeon, the Judge at the trial will not receive the witness's deposition in evidence under the 'Stat. 11 & 12 Vict. c. 42. s. 17, unless the surgeon attend at the trial to prove that the witness is unable to travel; but where a witness is permanently dis- abled and is not attended by a surgeon, other evi- dence that the witness is unable to travel may be sufficient; but where the witness is attended by a surgeon, and a person prove at the trial that he, on the 18th of March, saw the witness in bed, and that he appeared ill, the commission day being the 2l8t and the trial the 23rd, this is not sufficient proof of the illness of the witness to render his deposition admissible in evidence. Begina v. Riley, 3 Car. & K. 116. In an indictment for night poaching it is sufficient to allege that the land is land " of and belonging to J," without stating it to be "in the occupation of J." Ibid. NOTICE. [See Action — Evidekob — Landlord Tepaht — Practice.] akB NUISANCE. [See Stat. 18 & 19 Vict. cc. Ill, 116— and titles Animals — Easement — Injunction — Master ahd Sektaht—Minb — Peactioe; New Trial.] (A) Action for. (B) Abatement of. (A) Action for. A declaration in case alleged that the defendant was possessed of a theatre and of a stage therein, on which dramatic entertainments were perfonned, and of a dressing-room therein, and a floor underneath the stage, in which was a certain hole of great depth, across and along which said floor the performers at the theatre were accustomed to pass, from and to the said dressing-room, to and from the said stage; that the defendant hired the plaintiff to perform at the said theatre, and the plaintiff did perform in a certain opera, performed under the management and ■ for the profit of the defendant; and it then became and was the duty of the defendant to cause the said floor to be so sufficiently lighted, and the said hole to be so fenced and guarded, during and until a rea- sonable time after the said performance, as to prevent any accident to those passing across and along the said floor from the stage to the dressing-room. That the defendant, well knowing the premises, permitted the said floor to be insufficiently lighted, and the hole to be open without any sufficient fence, during and until, &c., by reason whereof the plaintiff, who immediately after the performance was passing from the stage along the said passage to the dressing-room, fell down the said hole, and was grievously injured : 500 NUISANCE— OUTLAWHY. —Held, first, that the facts stated did not raise the duty the breach of which was alleged; secondly, that the express allegation of duty was immaterial, and could not help; and, therefore, that the declara- tion was bad in arrest of judgment. Seynwur v. Maddux, 20 Law J. Eep. (n.s.) Q.B. 327; 16 Q.B. Eep. 326. If A employs another to do a lawful act, and he in doing it commits a public nuisance, A is not responsible. Pcacliey v. Bowla'iid, 22 Law J. Eep. (N.S.) C.P. 81; 13 Com. B. Rep. 182. Alifer if the act to be done necessarily involves the committing a public nuisance. Ibid. The defendant had, more than twenty years before the action, constructed a sewer or watercourse through property of his own, and then occupied by him. In 1845 the defendant let a house, shop and cellar to the plaintiff, which the defendant down to that time also occupied with the property. In 1851 the sewer or watercourse burst, and thereby the plaintiff's cellar and goods were damaged ; and the jilaintiff thereupon brought an action against the defendant for negligently and improperly making and constructing the sewer, and keeping and con- tinuing the same negligently and improperly made and constructed, and so causing the damage. The jury found that the sewer was not originally con- structed with proper care, and it was proved that it had been continued in the same state: — Held, that upon the letting of the premises to the plaintiff, a. duty arose on the part of the defendant to take care that that which was before rightful did not become wrongful to the plaintifF, because that would be in derogation of the defendant's own demise to the plaintiff; and that upon this ground, as also upon the principle sic utere iuo ut aliemim non kedas, the action was maintainable. Alston v. Gi-ant, 23 Law J. Rep. (n.s.) Q.B. 163; 3 E. & B. 128. (B) Abatement op. The Nuisances Removal and Diseases Prevention Act, 1848 (11 & 12 Vict. c. 123.) gives power to Justices to order the owner or occupier of premises to remove any nuisance therein, and if such order be not comphed with by such owner or occupier, the guardians of the poor may enter the premises to remove the nuisance. By section 3. all costs and expenses incurred in obtaining such order or in carrj'ing the same into effect, shall be deemed to be money paid for the use and at the request of the owner or occupier of the premises in respect whereof such costs and expenses shall have been incurred, and may be recovered by the guardians as such in any county court, or, if they think fit, before two Justices : — Held, that this provision overrides section ,58. of the ;i & 10 Vict. c. 93, and that the county court has jurisdiction to hear a plaint for such costs and exper.sc.«, notwithstanding that a question of title to land arises in it. Eegina v. Harden, 22 Law J. Eep. (n.s.) Q.B. 299; 2 E. & B. 188. Where a party is charged in a county court with a li.ibility arising from his being owner of land, and he disclaims being the owner of that land, this raises a question of title within the 9 & 10 Vict. t. .'I3. s. 58. Ibid. OATH. [See Stats. 17 & 18 Vict. c. 125. s. 20; also 16 & 17 Vict. u. 78. as to appointment of persons to ad- minister oaths in Chancery, and 17 & 18 Vict. c. 78. in the Court of Admiralty.] Of Abjuration. The statute 6 Geo. 3. c. 53. imposing the oath of abjuration is still in force. Solomons v. MUler (in error), 22 Law J. Eep. (N.s.) Exch. 169; 8 Exch. Eep. 778 : in the court below, MiUer v. Salomons, 21 Law J. Eep. (tf.s.) Exch. 161; 7 Exch. Eep. 475. Though the form of the oath given in the act is " I, A B, do truly and sincerely acknowledge," &c. " that our Sovereign Lord King George is lawful and rightful king of this realm," &c., in administering the oath, it is to be modified according to circumstances by using the name of the party swearing instead of A B, and by substituting the name of the sovereign on the throne for the name of " King George," with the other requisite verbal alterations. Ibid. The concluding paragraph, *' and I do make this recognition, acknowledgment, abjuration, renuncia- ciation, and promise, heartily, willingly, and truly, upon the true faith of a Christian," is an essential .portion of the substance of the oath, and no part of it can be omitted or altered. Therefore, where a Jew elected member of parliament, on taking his seat, repeated after the officer of the house the oath . of abjuration down to the expression " upon the true faith of a Christian," but purposely omitted those words, and afterwards voted as a member, it was held, that he had not taken the abjuration oath, and was consequently liable to the penalty for voting without having done so, imposed by the acts of 1 Geo. l.st. 2. c. 13. 6. 17. and the 6 Geo. 3. u. 53. s. 1. Ibid. Power to administer. A Master extraordinary in the Court of Chancery has no authority to admininister an oath in a suit in the Court of Admiralty. Segina v. Stone, 23 Law J. Eep. (n.s.) M.C. 14; 1 Dears. C.C. 25L An arbitrator appointed under the 77th section of the County Coiwts Act, 9 & 10 Vict. c. 95, has no authority to administer an oath; and if he does so, any party or witness cannot be convicted of perjury on an oath so sworn. Hegina v. HcHlett, 20 Law J. Eep. (n.s.) M.C. 197; 3 Car. & K. 130. OUTLAWRY. [See Bail — Libel.] Grounds and Proceedings for Reversal of. A plea is not issuable which has been already de- cided to be bad by the judgment of a Court. Beau- clerh V. HooTc (in error), 20 Law J. Eep. (n.s.) Q.B. 485. In error to reverse outlawry, the error assigned being that, at the time of issuing the exigi facias, the plaintifF in error was beyond the seas, the defendant pleaded that the plaintiff left the realm before the awarding of the exigi facias, and voluntarily remained absent; and that he had notice that he was about to be demanded at the county courts, and might have returned before they were holden : — Held, that this plea was not issuable. Ibid. OUTLAWRY— PARENT AND CHILD. 501 A rule to reverse an outlawry for error in fact, where the defendant in error has not pleaded to the assignment of errors within the time allowed, is a rule to shew cause only, and is not absolute in the first instance; but upon such rule being made absolute, no terms will be imposed. Howard v. Kersliaw, 20 Law J. Eep. (w.s.) Exch. 237; 6 Exch. Eep. S41. In a writ of error brought to reverse a judgment of waiver against a woman, the judgment was called a judgment of outlawry : — Held, upon plea of iml iiel record, that this was a fatal variance, and that the defendant in error was entitled to judgment. Surnett V. Phillips, 20 Law J. Rep. (n.s.) Exch. 337. The defendant, who had been outlawed in an action of assumpsit for a debt of 2042. brought a writ of error to reverse the outlawry on matter of fact. He still remained abroad, and appeared on the wi'it of error by attorney. After verdict in his favour, he obtained a rule for judgment, absolute in the first instance, and signed judgment of reversal of the out- lawry, without putting in special bail to the action. The Court, at the instance of the plaintiff', set aside the judgment as irregular, on the ground that the defendant was bound to have put in special bail on signing judgment of reversal, he having appeared by attorney, and the action being brought for a debt exceeding 20Z. OommereU v. Seauclerh, 21 Law J. Eep. (n.s.) Q.B. 137; 1 Bail C.C. 1. A rule to set aside proceedings to outlawry, for irregulsirity, was discharged with costs, on the ground that the affidavit did not purport to be made by an attorney duly authorized by the defendant. The irregularity being admitted, the defendant, although he had not paid the costs of the former motion, was allowed to make a second application for the same purpose, but only on payment of the costs of the second rule. Skinner v. Carter, 16 Com. B. Eep. oiS. PAEENT AND CHILD. [See Infant.] General Points. This Court will not support the re-settlement oi family estates between a father and son when the father obtains extensive advantages to the prejudice of the son and his family, in the absence of unequivocal proof that the whole of the facts were known to the son, that the purposes of '.the deed were fully ex- plained to him, and the operation of the respective provisions known to him. Soghton v. Hoghtmi, 21 Law J. Eep. (n.S.) Chanc. 482; 15 Beav. 278. Where, therefore, a re-settlement of family estates was made, in which the son, as tenant in fail, joined and re-settled the estates to such uses as the father and son should jointly appoint, with remainder to thefather for life, with remainder to theson for life, with remain- der to the first and other sons of the son successively in tail male, with remainder to such-uses as the father surviving should appoint, with remainder to the second and other sons of the father for life, with remainder to their first and other sons in tail male, with remainder to any other son of the father in tail male, with remainder to the daughters of the father successively for life, with . remainder to the first and other sons of each daughter successively in tail male, with remainder to the father in fee; and power was reserved to the father to appoint by deed or will jointure of 2,0002. per annum for any future wife, to be reduced to l,SO0/. per annum in case he ap- pointed 6002. per annum in favour of any stranger,! was set aside. Ibid. But various arrangements for the relief of the family estates from existing burthens, though the father obtained some advantages, were supported, on the ground that the effect of the transactions was known to the son, and even acquiesced in by him. Ibid. Affidavits under the 13 & 14 Vict. c. 35. not ad- mitted to prove that the son's marriage was entered into on the faith of that re-settlement. Ibid. A father claiming tct be tenant by the curtesy of land belonging in equity to his deceased wife, filed a bill in 1826 as next friend of his daughter for parti- tion. In 1830 a decree was made and partition ordered, and in 1833 the Court directed the daugh- ter's share to be conveyed to the father for a term until she came of age, upon trust to pay the rents for her maintenance, and the conveyance was so made. Before that bill was filed the father was advised that he had no claim as tenant by the cur- tesy, and on the conveyance he was advised, by other counsel, that he had, though his opinion , was after- wards retracted. 'The first and second opinions were communicated to him. He performed the trusts until the daughter came of age, and after that time he accounted for the rents to her. In 1847 she married, and on her and her husband bringing ejectment against the father in 18S2, he filed a bill claiming to be tenant by the curtesy, but the claim was dismissed by one of the Vice Chancellors, and he appealed from the decree: — Held, that the - plaintiff having entered as trustee for his daughter, had held the land as trustee after she attained tiventy-one, and could not set up that possession as his own; that the lapse of time between the decree of 1830 and the filing of the bill in 1852 was a bar; that the daughter having married on the faith of the father's representation that the estate was hers, he could not disturb her title, for although the Court will relieve against mistake in law, yet here the father, three years after the decree, had his attention brought to the state of his own title, and still con- tinued to treat the title of the daughter as para- mount to his own. Stone v. Godfrey, 23 Law J. Eep. (N.s.) Chanc. 796; S De Gex, M. & G. 76; 1 Sm. & G. 590. By merely making provisions for grandchildre.i, grandparents do not necessarily place themselves in loco pa/rentis. Lyddon v. Ellison, \S Beav. 565. In every case of a gift to a parent by a child shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has during the minority been guardian of the child's property, and in receipt of the rents of a considerable estate, and throws upon the parent the onus of shewing plainly and unequivocally that the gift was made not in conse- quence of representation on his part, but by the spontaneous act of the child, and that the child had full knowledge of the nature of the deed by which the gift was effected and of his own position and rights in reference to the property. Wright v, Vanderplajiih, 2 Kay & J. 1. A deed was executed by a lady five months after 502 PARENT AND CHILD— PARLIAMENT. she came of age, disentailing part of her estate, and giving, for a noininal consideration, an estate for life in the disentailed part to her father, who, during her minority, had been her guardian and in the receipt of the rents of her estates : — Held (obiter), that if a bill had been filed shortly after the trans- action, either before or possibly after the lady's marriage, which was solemnized sixteen months after the execution of the deed, the transaction could not have been supported, the deed itself not explaining the nature of the transaction, and it not being shewn that the daughter had proper profes- sional advice, that the nature of the transaction was explained to or understood by her, or that the gift was spontaneous or made at a time or under circum- stances when she was free from parental influence. Ibid. But a bill which, after the daughter's decease, and nearly ten years after the execution of the deed, was filed by her husband, on whom her rights had devolved, praying to have the father declared a trustee of the life interest, and an accoimt of the rents which accrued during his daughter's minority or afterwards, was dismissed on the ground of laches; it appearing (inter alia) that the plaintiff was aware of all the circumstances previously to his marriage; and the Court being of opinion upon the evidence that eight years before the bill was filed both the plaintifi' and his deceased wife had acquiesced in the transaction. Ibid. A father left his home where he was residing with his wife and children, infants, four daughters then ten, nine, eight, and four years of age, and two sons, aged six and three years. He was apprehended, committed and arraigned for the commission of an unnatural crime, but no witnesses appearing he was acquitted. He immediately left England, and re- mained abroad eight months. Five years after the trial he petitioned this Court, praying that his wife might be ordered to deliver up the children (the daughters being fifteen, fourteen, thirteen and nine years old, and the sons eleven aird eight years of age), and if necessary that writs of habeas corpus might issue for that purpose. The petition was supported by the afiidavit of the petitioner, and was served on the wife only. Affidavits were filed on behalf of the respondent, and amongst them an affidavit of the solicitor of the wife, who had been the solicitor for the petitioner, and in that capacity had interviews with him while in gaol awaiting his trial, offering to state conversations that took place between them if authorized by the petitioner so to do, and an affidavit by another witness referring, as an exhibit, to the depositions taken before the magistrates. The peti- tioner himself made two affidavits in reply, in one of which he denied the charge against him, and in the other, sworn three days later, he again denied the charge, and gave an explanation of the cause why he was at the place where and in the company in which he was when apprehended. The Court, being satisfied upon the materials before it that the petitioner had so conducted himself as that he ought to be treated as if he were a guilty man, dismissed the petition. Anonymovs, 2 Sim. N.S. 54. The Court will refuse to give possession of chil- dren to their father if he has so conducted himself as that it will not be for the benefit of the infants, or it will afl^ect their happiness, or if they cannot associate with him without moral contamination, or if, because they associate with him, others will shun their society. If it be established to the satisfaction of the Court that the father of children from ten to two years of age is to be considered as guilty of the perpetration of an unnatural crime, it is impossible to permit any sort of intercourse with his children, even after he has escaped conviction. Semble — that under such circumstances, if the children were witli their father, it would be the duty of the Court to remove them. Ibid. Desertion of Children. If a woman, in breach of her maternal duty, wil- fully abandons her infant child of too tender years to provide for itself, she is not indictable at common law unless her abandonment cause an injury to the health of the child. Evidence " that the child had suffered injury, but not to any serious extent," does not sufficiently support the averment in the indict- ment, that the health of the child had been greatly and materially injured. Megina v. Philpott, 22 Law J. Rep. (n.s.) M.C. 113; 1 Den. C.C. 179. If a woman be indicted for neglecting to supply her infant bastard child with proper food, and it be alleged that she was able and had the means of supporting it, it is not enough to shew that she might have obtained the means if she had applied to the relieving officer of the xmion. Regina v. Chandler, 24 Law J. Rep. (x.s.) M.C. 109; 1 Den. C.C. 453. An indictment alleged that the prisoner Mary H, with intent to injure the inhabitants of the parish of B, and to burthen them with the maintenance of her bastard child of tender age, then imable to move or walk or provide for itself or make its wants known, did unlaivfuUy and injuriously abandon and desert the said child in the said parish, without having provided any means for the support of the said child, the said child not being settled in the said parish, as she, the prisoner, well knew, to the great damage of the inhabitants of the said parish. There was a second count laying the intent to be to injure and burthen certain persons named, then being the over- seers of the parish of B : — Held, that the indictment was bad, as the abandoning the child with intent to throw on the parish the burthen of its maintenance as casual poor was not an indictable offence; and that the indictment could not be sustained as an indictment for neglect of natural duty in abandoning the child, as there was no averment that the prisoner had the means of providing for if, or that the child's health had sufl^ered injm'y by the abandonment. Regina v. Hogan, 20 Law J. Rep. (n.s.) M.C. 219; 2 Den. C.C. 277. PARLIAMENT. [As to the limitation of time for elections, see Statutes 16 & 17 Vict. c. 15. and 16 & 17 Vict. c. 68. In Scotland, 16 & 17 Vict. c. 23.J 1.— RIGHTS AND PRIVILEGES OF MEM- BERS. 2.— PRACTICE OF. 3.— REGISTRATION OF VOTERS. PARLIAMENT. 503 (A) Qdalipication. (a) Personal Disqualification, (h) Conveyances to multiply Votes. (c) In Cities and Borough. (c^ In Covmties. (B) Notice oe Claim. (C) Notice oe Objection. (D), Peactice. (a) Sigmimg Case. (b) Delivery of Paper Books. (c) Searing. 4..— BRIBERY. ^.—RIGHTS AND PRIVILEGES OF MEMBERS. [See title Oath.] On a trial a member of parliament may be asked whether Mr. L was Speaker of the House of Com- mons on a particular day, but if he be asked how a member voted, he will not be compelled to answer if he decline doing so, and have not the leave of the House to give evidence. Chubb v. Salomons, 3 Car. & K. 75. A member of the House who acts as a teller on a division is not an "officer of the house." Ibid. S.— PRACTICE OF. [See title Erkor.] The House of Lojds is at liberty, without regard to the form of an appeal, or the points raised upon it, to put questions of law to the Judges. Bright v. Button, 3 H.L. Cas. 341. Qucere — whether the House of Lords, like any other Court of Justice, may, in a subsequent case, overrule a previous decision of its own. Ibid. The Judges were required to answer a question put by the House. One of them differed from the rest. The opinions of the majority were stated by one of their number, and, in the statement, the prin- ciple on which the dissentient Judge formed his opinion was set forth to his satisfaction. The House did not require him to state his reasons at length. Salman v. Webb, 3 H.L. Cas. 510. The Judges were summoned to answer questions of law : they differed in opinion on these questions. Most of the Judges being on circuit, two of their number attended on a, day fixed by the House for receiving the answers, and proposed to read answers which embodied their own opinions and those of their brethren. The House adjourned the matter till the majority of the Judges should have returned from the circuit, so as to be able to attend in person, and individually express their reasons for their opinions. It was intimated that this permission to dispense with the attendance of any of the Judges to whom questions had been put, and who differed in their answers, must not be drawn into a precedent. Egerton v. BrovmVm, 23 Law J. Rep. (n.s.) Chanc. 345; 4 H.L. Cas. 1. A judgment of the House of Lords given on an appeal cannot be reversed ; but where such appeal and judgment have been obtained by suppression and misrepresentation,the House will afterwards discharge the order gi-anting the leave to appeal and the order constituting the judgment thereon. Towney v. ^"-"e, 4 H.L. Gas. 313. When it is orderefl that counsel be heard on a question as to the regularity of an appeal, the party objecting has the right to begin. Geils v. Qeils, 1 Macq. H.L. Cas. 36. Where there were two respondents, having distinct interests, the House allowed two counsel to be heard for each. The Parish of South Leith v. Allen, 1 Macq. H.L. Cas. 93. Proper course in such a case. Ibid. 3 REGISTRATION OF VOTERS. (A) QnALIEIOATION. {a) Personal Disqualification. By the 22 Geo. 3. c. 41. s. 1, "No commissioner, &c., or other officer or person whatsoever con- cerned or employed in the charging, collecting, levying, or managing the Customs or any branch thereof," is to have a vote. An "extra-glut tide- waiter " is a person whose name is on a list, confirmed by the Commissioners of Customs, of persons ready to act as occasional tide-waiters in boarding vessels for the purpose of watching the cargoes to be exam- ined by the proper officer of the Customs, and liable to be called on to act whenever there may be occa- sion. He is paid by the job, and makes the decla- ration required by 8 & 9 Vict. c. 85. s. 10. once for all upon his appointment, which declaration is made by all the officers of the Customs ; — Held, that such a person is " an officer or person employed in the collecting the Customs,'' and is not entitled to a vote. Pownall v. ffood, 21 Law J. Eep. (n.s.) C.P. 12; 11 Com. B. Hep. 1. (5) Comieyances to multiply Votes. [See Phillpotts v. PMllpotts, title Deed, ante, p. 239.] (c) In Cities and Boroughs. The premises in respect of which a vote for a borough was claimed, under 2 Will. 4. • c. 45. 3. 27, consisted of a two-stalled stable, built of brick, with another brick building annexed, but of a lower elevation, and to which also a wooden building was annexed, in three compartments, each of which, as well as the two brick buildings, had an opening into the same yard; but there was no internal communi- cation. All three were occupied together under the same landlord, and used by the claimant for a wheel- wright's business :-^Held, that this was "a building" within the meaning of the statute. Pownall v. Daw- son, 21 Law J. Rep. (n.s.) C.P. 14; 11 Com. B. Rep. 9. By 11 & 12 Vict. t. 90. no person is entitled to be registered as a voter unless, on or before the 20 th of July he shall have paid all assessed taxes which have become payable by him previous to the 6th of January preceding. By the 43 Geo. 3, c. 161. s. 23. the assessed taxes are payable, and are to be paid quarterly on the 20th of July, the 20tli of Septem- ber, the 20th of December, and the 20th of March. By the 48 Geo. 3. c. 141. s. 1. the collectors are directed to collect the assessed taxes in equal moieties within twenty-one days after the 10 th of October and the' 5th of 'April ; but with a proviso, that nothing therein contained shall be construed to alter the time when the duties are made payable by the previous acta. The quarter's house-tax due from the appel- 504 PARLIAMENT; (A) Qualification of Votees. lant on the 20th of December was not demanded till the 11th of April following, and he did not pay it before the 20th of July:_Held, that the quarter's assessed taxes, which by the 43 Geo. 3. c. 161. s. 23. become payable on the 20th of December, are taxes which, in the language of the II &12 Vict. c. 90, have become payable before the succeeding 5th of January, although no demand for payment has been previously made; and that therefore the appellant was not entitled to be placed on the register. Ford V. Smedley, 22 Law J. Rep. (n.s.) C.P. 35 ; 12 Com. B. Eep. 622. The appellant claimed to vote in respect of the occupation of premises described as a " house and garden," and held under the same landlord at one entire rent. The house alone would not let for \0l., and the garden was separated from it by waste land and a row of buildings : — Held, that the word " therewith" in the 27th section of the Keform Act had reference to time and not to locality, and that therefore the circumstance of the garden being separate from the house did not invalidate the qualification, as the house alone would not have let for 10/. Collim v. Thomas, 22 Law J. Rep. (n.s.) C.P. 38; 12 Com. B. Rep. 639. A, a freeman of the borough of Shrewsbury paying scot and lot, for upwards of two years last past, and down to the 25th of March 1851, occupied and re- sided in a house on the Wyle Cop, within the ancient and present limits of the borough, and, since the 25th of March, down to and on the 31st of July, occupied and resided in a house at Coton Hill, with- out the ancient but within the present limits of the borough. The revising barrister, holding him to be disqualified by the 2 Will. 4. c. 45. o. 32, expunged his name from the list of freemen voters: — The Court, without hearing any argument (the counsel for the respondent admitting that he could not sup- port it), reversed the decision. Janis y, Peele, 11 Com. B. Eep. IS. (d) In Counties. A mortgagor of freehold premises in possession of the rents and profits is not entitled to be registered as a county voter under 6 & 7 Vict. t. 18. s. 74, unless he receives therefrom iOs, by the year, after deduct- ing money paid annually by him by way of interest on a sum secured by a mortgage which contains no mention of interest, the time for repayment of the principal sum mentioned in such mortgage having expired; such annual payment being in fact a con- sideration for remaining in possession. Lee v. Mwtr- chinson, 20 Law J. Rep. (h.s.) C.P. 4; ti Com. B. Eep. 16. Per Maule, J. — The true construction of the words " over and above the interest of any money secured by mortgage" in the freeholder's oath, 28 Geo. 3. c. 36. s. 6. is, "money 6ecured,"not "interest secured." Ibid. A case stated that the respondent, being minister of a congregation, occupied premises worth more than 40s. per annum, under the trusts of a deed, one of which trusts was "to permit the minister for the time being to reside in the premises rent free," and that the evidence of the respondent's appointment was his own statement that it was for life. The legal estate was in the trustees : — Held, that there being no appeal upon questions of evidence, the case dis- closed an equitable estate for life in the respondent, entitling him to a vote. Bwrton v. Brooks and Bur- ton V. Cove, 21 Law J. Rep. (n.s.) C.P. 7; 11 Com. B. Rep. 41. The claimant, a member of a building society, pur- chased land of the yearly value of &l. and mortgaged it to the trustees of the society for the amount of the purchase-money, which they had advanced to him. He was also a holder of three shares in the society. By the rules' of the society he was bound to pay Is. Sd. weekly for each share (11/. 14s. per annum). And by the mortgage, which was in accordance with the rules of the society, power was reserved to the trustees, on neglect or refusal to observe any of the regulations, &c. to sell the premises, &c. and receive the rents. By the mortgage a sum equal to bl. per cent, as premium for prior advances was to be and was secured ; and the sum fixed to be paid for inci- dental expenses was 6s. per annum, which was also secured. Of the 11/. 14s. per annum, 11. 16s, was appropriated to the payment of interest on the money stiU due upon the mortgage, and for incidental expenses, and the remainder was taken in part dis- charge of the mortgage debt, and a receipt given from time to time ; — Held, that the whole 11/. 14s. must be deducted from the annual value of the estate, and therefore that the claimant had not an estate of the value of forty shillings by the year, within the meaning of 8 Hen. 6. c. 7. and 6 & 7 Vict. c. 18. s. 74, and was not entitled to a vote for a knight of the shire. Beamish v. Overseers of Stoke, 21 Law J. Eep. (n.s.) C.P. 9; 11 Com. B. Rep. 29. Where a person claimed a vote in respect of a freehold which was of the annual value of 5/., but it appeared that the land with other land of the claimant, of the yearly value of SO/., was mortgaged for 300/., and that the interest payable on the mort- gage was 15/. a year, — Held, that the interest might be apportioned, and that the claimant was entitled to his vote. Moore v. the Overseers of Carisbrook, 22 Law J. Rep. (n.s.) C.P. 64; 12 Com. B. Rep. 661. The appellant claimed, with twenty-nine other persons, to vote in respect of certain freehold pre- mises which were let at a gross rent. During the six preceding years the landlords had voluntarily paid for repairs : — Held, that the question whether the annual value of the freehold was reduced by such payments below 60/. depended upon the rent which could be obtained if the tenant had to keep the pre- mises in repair; and that the revising barrister, having found that the rent which could be obtained in that case would be less than 60/., the several persons in whom the freehold was vested were not entitled to vote. Hamilton v. Bass, 22 Law J. Eep. (n.s.) C.P. 29; 12 Com. B. Eep. 631. The 8 & 9 Vict. c. 6, an Allotment Act, empowers deputies appointed under its provisions to make small allotments of land to resident freemen of L, to be held by them so long as they shall he willing to hold the same, and pay the rent, and conform to certain regulations. All the land is vested in the deputies as trustees; and they have the power to sell with the concurrence of a majority of a meeting of freemen occupiers: — Held, that the allottees have freehold estates which entitle them to vote for members of parliament, as their estate may continue for life, and is not determinable on the mere will of the grantors. PARLIAMENT, 505 Beescm v. Bwrlon, 22 Law J. Eep. (n.s.) C.P. 33; 12 Com. B. Rep. 647. The owners in fee of a plot of land, subject to a rent-charge, granted a portion of it to ten as tenants in common in fee, subject to payment of U. 5s. as a proportion of the charge. The grantors covenanted to pay, and to keep the grantees indemnified as to the remainder of the charge; and that the grantees, if called upon to pay, should have power to distrain on the residue of the land, which was sufiicient to meet that remainder: — Held, that although each portion of the land was liable for the whole amount of the rent-charge, yet as the grantees could enforce contribution against the grantors for all beyond il. 5s., that amount only was to be deducted in estimating the grantees' interest with reference to the franchise. Barrow v. BiKhmasta; 22 Law J. Hep. (n.s.) C.P. 65; 12 Com. B. Eep. 664. The appellant claimed to vote in respect of a free- hold which he let for iOs. a year, he agreeing to pay the usual tenant's rates. If he had not so agreed he could only have obtained 40s. minus the amount of those rates : — Held, that the appellant had not an estate of the clear yearly value of 40s., and therefore that he was not entitled to vote. Moorhouse v. Oil- hertaon,2S Law J. Rep. (k.s.) C.P. 19; 14 Com. B. Eep. 70. The criterion of value of a freehold, for the pur- pose of voting, under 8 Hen. 6. c. 7, is not the annual amount which the land actually produces, but what it reasonably may produce. Therefore, where A bought two" pieces of land fit for building purposes from a freehold land society, for 1501., and they were conveyed to him in fee, and he had been offered a ground-rent of 151. a year for them, and it appeared they were worth 151. a year for building, but if let to a tenant for any other purpose they would not pro- duce a rent of 40s. a year, — Held, that A was en- titled to vote, although his land in its existing state was not worth 40s. a year. Astbury v. Henderson, 24 Law J. Eep. (n.s.) C.P. 20; 15 Com. B. Rep. 251. (B) Notice of Claim. Where the description in the notice of claim given to the overseers, under section 38. of 6 & 7 Vict. c. 18, of the situation of the premises in respect of which a borough vote is claimed, is not strictly ac- curate, but is, in the opinion of the revising banister, sufficient to give notice for what premises the claim really is, it is his duty, not to amend the claim, but to proceed as if the claim had been strictly accurate in its description. Eaden v. Cooper, 21 Law J. Eep. (n.s.) C.P. 32; 11 Com. B. Eep. 18. (0) Notice of Objection. The respondent claiming a vote for the city of C received a notice of objection from the appellant, who described himself therein as " on the list of freemen for the city of C." It appeared that besides the list of freemen for the city entitled to vote for members of parliament, there was a list called the Freemen's Eoll, kept for municipal purposes : — Held, that the revising barrister was right in deciding that the notice was sufficient, under the 17th section of the 6 & 7 Vict. c. 18, as affirming that the objector was on the list of freemen entitled to vote JDissentiente, Maule, J. Feddon v. Sawyers, 22 Law J. Eep. (n.s.) C.P. 15; 12 Com. B. Eep. 680. DlSESi, 1850—1855, The 7th section of 6 Vict. c. 18. requires that a notice in the form set out in Schedule A annexed thereto, or to the like effect, should be served upon the person whose vote is intended to be objected to : — Held, that a notice in the following terms, " Take notice, that I object to your name being retained on the list of voters for the parish of St. Thomas, New Sarum, in the southern division of the county of Wilts," was sufficient notice to a person that his vote for the county would be objected to. Lambert v. Overseers of St. Thomas,New Sarv,m,'2,2'Lii,vi 3. Eep. (N.s.) C.P. 31; 12 Com. B. Eep. 643. The overseers of parish C, in the city of W, have to prepare two lists of voters, one according to the form No. 3. Schedule B of the 6 Vict. c. 18. con- taining the names of the 10/. occupiers, and the other, according to No. 4. in the said schedule, containing the names of those whose rights were reserved under the Reform Act. T-he following notice of objection to the name of a 10/. occupier on the former list was sent to the overseers — To the Overseers of C : I give you notice that I object to the name of J A being retained on the list of persons entitled under the Reform Act to vote for the City of W;— Held, that the notice was sufficient. Huggett v. Lewis, 24 Law J. Eep. (n.s.) C.P. 38. (D) Practice. (a) Signing Case. Where the case transmitted to the Court of Com- mon Pleas contains no signature of the revising bar- rister at the end of it, the Court of Common Pleas cannot entertain the appeal. But the Court allowed an appeal to be argued, the respondent consenting to have the signature inserted. J3wi^on v. Bvoolcs, and BwrUm v. Cove, 21 Law J. Eep. (n.s.) C.P. 7; 11 Com. B. Rep. 41. Where the case transmitted to the Master, under the 6 & 7 Vict. c. 18. ss. 42, 64, is not signed, as well as indorsed, by the revising barrister, the Court will not hear the appeal, where the respondent does not appear. Burton v. Blake, 11 Com. B. Rep. 47. (J) Beliiiery of Paper Boohs, The Court refused to hear an appeal (or to allow it to stand over), where the appellant had failed, on the respondent's default, to deliver copies of the case to the two junior puisne Judges. Sheddon v. Butt, 11 Com. B. Rep. 27. (c) Eeari/ng. Where no counsel appears for the respondent, the counsel for the appellant will be heard, upon proving service of the notice of appeal. Pownall v. Hood, 2] Law J. Rep. (n.s.) C.P. 12; 11 Com. B. Eep. 1. The Court adjourned the hearing of an appeal, in order to give the appellant time to give the notice required by the statute 6 & 7 Vict. c. 18. ss. 42, 64, the case not having been settled and delivered to the appellant until the eighth day of term. Bwrton v. Blahe, 11 Com. B. Rep. 47. 4. BRIBERY. [See Stat. 17 & 18 Vict. u. 102.] Debt to recover a penalty, under the 2 Geo. 2. c. 24, for corrupting a voter. The first count of the declaration alleged the corrupting to have been by promising the voter, at his request, to pay to one W Gr 3T 506 PARLIAMENT— PARTIES TO ACTIONS. for and on the account of such voter 411. 5s., then claimed from the voter by W G; by then promising the voter to pay W G 10/., to wit, on &c., and the residue of the said sum by monthly instalments of 51. The second count stated the corrupting to have been by giving, at the request of the voter, to \V G 10/. for and on account ofa debt of 41/. 5s. claimed to be due from the voter to W G, and by then promising \V G, at the voter's request, to pay the residue of the said debt by certain instalments which were specified. Upon the trial, it appeared that the voter had ap- plied to the defendant for money to redeem his boat held by W G as a security for a debt of 41/., and thereupon the defendant promised to try and obtain the release of the boat, provided the voter would give Ills vote for a particular candidate named; that the defendant in London then corresponded on the sub- ject with H at Harwich, the person in possession of the boat, on behalf of W G, the result of which was that the defendant paid 10/. in London to the credit of H with the Harwich Bank on account of the debt to W G, and pledged himself to pay the balance of 31/. 5s. and the attendant expenses in monthly instalments of Bl, and the boat was thereupon released and given up to the voter, who afterwards voted for the candi- date named. It did not, however, appear that the voter had ever promised to vote for such candidate. — Held, first, that it is necessary to state accurately the actual agreement, when the means of corruption rests in agreement only, and therefore that had the first count stood alone, there might have been a fatal objection to the declaration, on the ground of variance. Secondly, that proof of the allegation in the second count of the actual payment.of 10/. by the defendant to W G at the voter's request, was sufficient to sup- port the action, and that the other allegations might be treated as surplusage. Baker v. Ausk, 20 Law J, Eep. (n.s.) Q.B. 106; IS Q.B. Rep. 070. Held, also, that the venue in the action had been properly laid in Essex. Ibid. PARTIES TO ACTIONS. ., (A) PiAlNMFPS. _ ! (B) iDeeendants. (A) Plaintiffs. Debt to recover 300/. as for a total loss under a deed-poll or policy of insurance, sealed with the common seal of the company (the plaintiffs in error). The declaration set out the policy, which, after reciting that the said M. Kearney had repre- sented that he was interested in or duly authorized, tL3 owner, agent, or otherwise, to m^ke the insurance thereinafter mentioned with the saicl, compauy, and had covenanted to pay a certain premium, stipulated, amongst other things, that it was agreed by and on behalf of the company that the capital, stock and funds of the said company should, according to the provisions of the deed of settlement of the said com- pany he subject and liable, to make good an,d should be applied to pay and mate goocl, all sudi losses and damages as might happen to the subject-matter of the said policy in respect of,thp| sum of 300/i . insured, which insurance was thereby declfiied to be upon cargo, goods, or freight (valued at interest), of and inthegood shipilf a}'?/, whereof Noonan (the other defendant in error) was master; that the capital stock and funds of the company should alone be liable, according to the deed of settlement, to make good all claims and demands whatsoever under or by virtue of the said policy, and that no shareholder of the company should be in anywise liable to any claims or demands, nor be charged by reason of the said policy beyond the amount of his shares in the capital stock of the company. It was then averred that the defen- dants (the plaintiffs in error) became insurers for 300/. upon the freight of the said vessel; that divers goods had been shipped on board the said vessel to be carried for freight, and that from thence until the happening of the loss the plaintiffs (the defendants in error) were interested in the freight of the goods so shipped: — Held, first, that there was an absolute covenant on the part of the company to pay the sum insured when a loss should happen, and that it was not necessary to aver in the declaration that the capital stock and funds were sufficient according to the deed of settlement; the want of funds being a matter to be pleaded, on the part of the company, if a defence at all. Secondly, that an action of debt was maintainable. Thirdly, that Noonan was suffi- ciently designated in the deed-poll as a party inter- ested with whom the company contracted, to entitle him to join as a plaintiff in the action. Tlie Sunder- land Marine J(mwdnce Co. v. Kea/rney, 20 Law J. Rep. (n.s.) Q,'.:&.'il7; 16 aB.Rep. 925., , „ The plaintiff, acting on behalf of the member's of an orchestra, to which he himself belonged, signed a proposal, ',' on behalf of the members of th^, orches- tra," to continue their services, provided the.defen- dantwould guarantee certain salary then due to them. Tlie defendant accepted this proposition, but failed to pay the salary due. The plaintiff alon^ brought an action for the whole money due to himself and the rest, and stated the contract to be with himself an,dthe rest. The jury found, that he acted on behalf of himself as well as the resli :; — Held, that the con- tract was joint, and ihat he could not recover. Lucas V. PmU, 20 Lavjr J. Rep. (li.s.) C.P.134; lOCom^ B. ,Rep. 739., ,.,The defeifdant, as surveyor of the highways, had incurred large, legal expenses in defending certain appeals against orders for stopping up highways, without the previous sanction of the palish. At a meeting. of the vestry, wl^ere his accounts were gone into, the items for these expenses were objected to, and ppposition.was threatened to , be, made to his accounts before the J,u3tiirties, although some of them not being next-of-kin of the settlor, must be so, and cause ordered to stand over, that one of the infants not being next- of-kin might appear by counsel at the hearing. Head V. Prest, 1 Kay & J. 1S3. Where one of two executors was indebted to the testator at the time of the testator's, decease, and was sued by his co-executor for the recovery of the debt and the realization of a security which had been given for it : Held, that the eestuis gue trust under the will were not necessary parties to the suit. Pedlce v. Ledger, 4 De Gex & Sm. 137. A joint-stock banking company, subsisting under the 7 Geo. 4. c. 46, having become insolvent and ceased to carry on business, the public officer insti- tuted a suit charging certain of the directors as de- fendants with losses during the time when the business was carried on by means of unauthorized speculations in shipping and collieries, and of a fraudulent trans- action by a deed of arrangement with a debtor to the company, who was also made a defendant, and praying relief in respect of all these matters, and particularly to have the deed set aside. On the demurrer of one of the directors, — Held, that the suit was properly instituted by the public officer, although the company had ceased to carry on busi- ness; that it was not necessary to make the directors and trustees who were not charged with the improper transactions and firauds parties; but it appearing that the manager was mixed up in the transactions, that it was necessary to make him a party. Sairison v. Brovm, 5 De Gex & Sm. 728. Held, also, that although there were several dis- tinct transactions, as to which the liabilities might be several, yet that it would lead to a mischievous mul- tiplicity of suits if the demands were divided, and a demurrer for multifariousness was disallowed. Ibid. On a bill for the execution of the trusts of a will, directing the sale and distribution of the proceeds of real estate, framed according to the old practice, and bringing all the residuary devisees and legatees before the Court : — Held, that the trustees of a settlement of the share of one of the residuary legatees, made on her marriage, ought to be parties; but that the children of the marriage would be sufficiently repre- sented by such trustees. Denserii v. El/worthy, 9 Hare, App. xlii. Where a plaintiff at his option may either file his bill against A and B, or against A alone, and he takes the former course, and B afterwards dies, he cannot at the hearing by waiving relief against B's estate proceed against A alone in the absence of B's repre- sentatives. T/ie London GasUglit Co. v. Spottisiooode, 14 Beav. 264. Where one of several trustees dies pending a suit which does not seek to charge them personally in that character, his representatives are not necessary parties, for the trusteeship survives. Ibid. A cause was ordered to stand over to make the assignees of a bankrupt defendant parties. They were made parties by amendment. An objection raised by the co-defendants, that they ought to have been made parties by supplemental bill, was overruled. Ibid. Bequest in trust to invest and pay the interest of a moiety to A, and afterwards to her children, and the other moiety to B, and afterwards to her children. The interest on a moiety of 1,000Z. invested on mort- gage was paid to A for thirty years. On her death the mortgage was got in: — Held, that A's children could maintain a suit for their moiety without making B and her children parties. Mores v. Stringer, 15 Beav. 206. PARTIES TO SUITS; (A) Necessary oe Pbopee Paetibs. 509 , A testator gave the interest of his residue to W and his wife, with remainder to the testator's grand- children, W died twenty-nine years after the tes- tator, and his wife applied for the income. The Court, being unable to decide on her right, in conse- quence of the absence of some parties, allowed her in the meanwhile to receive a portion of the income, on her undertaking to refund if necessary. Moffat V. Burnie, 16 Beav. 298. Where all persons beneficially interested areparties to a special case, the trustees ought to be omitted. Dairby v. Darby, 18 Beav. 412. (6) Administration Suits. Bill by four of the next-of-kin of an intestate, for the administration of his estate, on behalf of 'them- selves and all others the next-of-kin. The bill alleged that the next-of-kin were very numerous, but no evidence of that fact was adduced. Upon an affidavit, under the 13 & 14 Vict. c. 35, that the next-of-kin were upwards of twenty in number, the Court made the usual administration decree. Smith V. Leathart, 20 Law J. Rep. (n.s.) Chanc. 202. One of three executors and trustees filed a claim to have the testator's real and personal estate admi- nistered, making his co-executors alone (notincluding any person beneficially interested) parties: — Held, that the suit was defective. Leslie v. Smith, 5 De Gex&Sm.78. , The testator after .giving the income of his resi- duary real and personal estate to A for life, and after her decease to B for life, directed his trustees then to sell his estates and divide the proceeds amongst " the following persons or their heirs for ever, — the grand- children of C, the grandchildren of D, and the grand- children of E:"^^Held, that the word " heirs" was to be construed heirs according to the nature of the property, and it being in this case given as mojiey, " heirs" was construed " next-of-kin"; thatthegrand- children of C, D and E living at the death of the testator, and afterwards bom during the lives of the tenants for life, and the next-of-kin of any of them who predeceased the surviving tenant for life, were entitled, to the, residuary estate, the next-of-kin of efich deceased grandchild taking the deceased grand- child's share ; that the words " for ever " did not alter the character of the persons who were, to take, the only import of such words being that the persons who were to take took absolutely. Doody v. Higgi/ns, 9 Hare, App. xxxii. . That the Court being satisfied that neither the heirs-at-law nor the personal representatives of the deceased grandchildren had any reasonable ground of claim, it was not necessary to ,make them parties to the suit, Ibid. That the other grandchildren and the next-of-kin of the deceased grandchildren pf the testator must be brought before the Court on the further prosecution of the suit, by being served with notice of the decree, under the 8th rule of the 42nd section of the Act, 15 & leYict. c,,86. ,Ibid. Where an estate, is to he sold under the decree of the, Court the general rule (with a possible exception in some cases of extreme difficulty), isjithfit all the parties interesteid in;,thei procpeds must, to ,sec,u,i;e a proper and advantageous sale and .protect th? t\\\e of purchasers from being open to inquiry or inipeach- ment, be parties to the suit, or be served with notice; of the decree under the 8th rule of the 42nd section of the act, 15 & 16 Vict. c. 86. Ibid. The Slst section of the act, 15 & 16 Vict. c. 86, which empowers the Court to adjudicate on questions between some only of the parties, does not render the decision binding on the absent parties, as the 42nd section of the same statute does, when notice of the decree has been served under the 8th rule. Ibid. The expense of ascertaining the kinship of the next-of-kin of the deceased grandchildren ought to fall upon the general estate of the testator, as such next-of-kin are, equally with the surviving grand- children, his legatees; and, therefore, as the number of grandchildren must be ascertained before the fund could be divided, it would be unj ust to the next-of-kin of the deceased grandchildren that the inquiry should stop without ascertaining their kinship, thereby throwing the expense of such proof upon their shares of the fund. Ibid. A distinction between suits by creditors and suits by legatees is, that in suits by creditors, where one sues on behalf of others, the law gives a power to the trustees to deal with the estate, which it dqes not give in the case of legatees. Ibid. Form of order for administration, dispensing with the representatives of deceased executors and trustees as parties to the suit, when incapacitated persons are interested in the estate. Whittington v. Qoodimg, 10 Hare, App. xxix. , Cases in which the residuary estate of one testa,tor having devolved upon another, it is proper to join the executors of the first testator in a suit to administer the estate of the, second, and to take the accpunt of both in one suit. Young v. Hodges, 10 Hare,' 158. In a 'suit for administration against the adminis- trator with the will annexed, and the widow, to whom the assets had been assigned, such administrator was alleged and proved to be out of the jurisdiction:— Held, that the suit could not proceed in the absence of a legal personal representative. Donald v. Bather, 16 Beav. 26. Some of the residuary legatees under a ^vill may file a claim against the execiitors, without making the other residuary legatees parties ; but the others ought to be summoned before the Master. Watson v. Yotmg, 1 Sim. N.S. 114. ' (c) Creditors' Suits. ' ' By a deed between A of the first part, B and C, stated to be, creditors of A, , of the second part, and the creditors of A who should execute, the deed, of the third part, A assigned his property to B and C, on ,trust to pay H a giim of money in, respect of a lien on some of the property, and to divide the resi- due among the creditors. B never executed the deed, and his executors filed a bill to set it aside. The bill alleged that Ij had died, directly after the date of the, deed, thatC was a bankrjupt, that H had not any lien, and h^d acted improperly in the matter, and that it was the interest cifthe creditors who had exe- cuted the deed that it should be set aside. The only ■defendants were 0, his assignees, and H : — Held, that one or mpfe of the creditors who had executed the •deed were necessary parties to the suit.. Gore, v. JSairis, 20, Law J. Eep. (n.s.) Chanc. 74. The ividpw of a deceased debtor, without taking <)ut| letters of a4miDistration, got in all the assets of her husband and compounded with his creditors. 510 PARTIES TO SUITS. Upon a claim by a creditor to obtain payment of a debt due to him in full, Held, that a legal personal representative of the intestate ought to be made a party, and leave was given to amend. Creasor v. Robmson, 21 Law J. Eep. (tr.s.) Chanc. 61; 14 Beav. 589. A testator dying in the Mauritius appointed exe- cutors in that country, and left the residue of his property to his'mother in;England. The executors in the Mauritius transmitted the residue to England, but the mother of the testator having died, the am cunt was paid to her executors, who paid all her debts exceeding the amount to which she became entitled from the testator's estate. The plaintiff was a cre- ditor of the testator, and filed a claim to obtain pay- ment of his debt, or to have the testator's estate administered: — Held, that the Mauritius executors were improperly made parties to this claim, and that the plaintiff could not have relief against the executors of the testator's mother without having a legal per- sona] representative of the testator constituted in this country, a party to the suit. Silver v. Stein, 21 Law J. Eep. (n.s.) Chanc. 312. (d) Mortgage Suits. In a suit for foreclosure commenced under the old practice, the trustees of the equity of redemption if in settlement do not sufficiently represent the cestuis que trust under the Chancery Procedure Amend- ment Act (15 & 16 Vict. u. 8S. s. 42, r. 9). The cestuis que trust will still be necessary parties to the suit. Goldsmith v. Stonehewer, 22 Law J. Rep. (s.s.) Chanc. 109; 9 Hare, App. xxxviii. In a foreclosure suit, the devisees and executors of the mortgagor represent the cestuis que trust of the equity of redemption under the Chancery Pro- cedure Amendment Act (15 & 16 Vict. c. 86. s. 42. 1. 9), and the cestuis que trust are not necessary parties to the suit. Eannam v. Riley, 22 Law J. Ilep.(if.s.) Chanc. 110; 9 Hare, App. xl. In aforeclosure suit all thepartieawhohadcontroul over as well the mortgaged property as the personal estate of the mortgagor were on the record : and the Court held, under the 42nd section, rule 9, of the 15 & 16 Vict. c. 86, that the cestuisque trust of the ' mortgaged estate were not necessary to be rnade parties. Sale v. Kitson, 22 Law J. Eep. (n.s.) Chanc. 344 ; 3 De Gex, M. & G. 119. On the hearing of a foreclosure claim, it appeared that the equity of redemption was vested in trustees on certain trusts, and that the persons interested under the trust were not made parties. The Court ordered that the persons so interested should be made parties, or that evidence should be given that they knew of the proceedings, and did not object. Tudor V.Morris, 22 Law J. Rep. (n.s.) Chanc. lOol; 1 Sm. & G. 503. As a general rule, all persons beneficially interested in an equity of redemption ought to be made parties to a foreclosure suit. The object of rule 9. s. 42. of the Chancery Amendment Act is merely to give authority to the Court in certain cases to treat a trustee as representing the property, and to dispense with the making the cestuis que trust parties. Crop- per y. MeUersh, 24 Law J. Rep. (n.s.) Chanc. 430. In a suit for foreclosure against the infant heir-at- law of the mortgagor, the Court refused to act on the 15 & 1 6 Vict. c. 86. ». 42. r. 9, dispensing with the parties beneficially interested in the equity of re- demption of the mortgaged premises, where the devisees in trust under the will of the mortgagor had disclaimed, and there were not before the Court any adult parties who could be in possession of funds to redeem the estate. Young v. Ward, 10 Hare, App. Iviii. Upon a claim by a mortgagee against mortgagors, and against the trustees under an assignment of the equity of redemption for the benefit of the mortgagors' creditors, whose names appeared in a schedule to the deed which they executed : Held, that although the deed gave the trustees a power of sale, with a clause making their receipts good dis- charges, the scheduled creditors were necessary par- ties to the suit. Thomas v. Dunnixig, 5 De Gex & S. 618. In a foreclosure suit a trustee, in whom was vested the legal estate in the mortgaged property, and who had agreed toconvey it to the plaintiff when required, is a necessary party. Hichens v. Kelly, 2 Sm. & G. 204. Since the 15 & 16 Vict. o. 86, the tnistees of a mortgage represent the cestuis que trust sufficiently to protect the mortgagor; but where the trustees, or the representatives of the trustees, alone are parties, the Court requires the cestuis que trust to be also re- presented, in order to secure the due application of the trust property. Stansfield v. Bdbsmi-, 1 6 Beav. 189. A, being- tenant for life of an estate, and the owner of achargeof 20,000i. thereon, mortgaged the 20,000^. to B for 14,000;. He afterwards mort- gaged it and other property to G for 24,0()02. A died, and the Succeeding tenant for life prayed a re- demption against C, on payment of such a sum as was due on account of the 6,000^. (thus splitting the charge of 20,OOOZ. into two portions) : Held, that both B and the executors of A were necessary par-" ties to such a suit. Lord Kensington, \ , Bov/verie, 16 Beav. 194. Pending a suit by a mortgagor for redemption the plaintiff became an insolvent, and he also aliened the property. Neither his assignees nor his alienee were made parties, and in their absence an order was made foreclosing the plaintiff: — Held, that the assignees in insolvency were not boundi by it, the assignment to them by the insolvent being in invitum, but that it was binding on the alienee pendente lite, and those claiming under him. Held, Silso, that the latter could not avail themselves of the objection of the absence in the suit of the former. Weod/v. Surr, 19 Beav. 561. ' (B) Joinder of. One of several cesiais que trust, who is also the personal representative of a deceased defaulting trus- tee, cannot ba joined as co-plaintiff with thfe other cestuis que trust in a bill to charge the estates of the other deceased co-trustees with the loss of the trust funds. Such a bill will be dismissed for misjoinder, with costs as to the defendants who raised the objec- tion by answer, and without costs as to all the other defendants. Griffith v. Van Jleyihuysen, 20 Law J. Rep. (h.s.) Chanc. 837; 9 Hare, 85. In a suit so framed, the defect was first disclosed by amendment to the original bill, and the newly- appointed trustees, against whom no relief was pray- PARTIES TO SUITS-PARTITION. 611 ed, did not insist upon the objection, either by their answer or at the hearing, and were desirous that the suit should proceed : — The bill was, notwithstanding, dismissed as against them, without costs. Ibid. The joining in a claim parties whose interest is contingent, to ask for the preservation of a fund is not multifarious, Or a misjoinder of parties. Dames V. Dames, 21 Law J. Eep. (n.s.) Chanc. 543. A testatrix gave certain- property to her two daughters, and made one of them her executrix. The two daughters mortgaged a portion of the real estate by deposit of title deeds, and the money bor- rowed was partly for the purpose of paying the debts of the testatrix and partly for the private pur- poses of the two daughters. The daughter who was executrix died, and appointed as her executrix the plaintiff, who thereby became the representative of both mother and daughter. A bill was filed, by a creditor, to have both estates administered, and a decree was made for the sale of the mortgaged estate. The plaintiff now filed a bill against the equitable mortgagees to have the title deeds of the estate deli- vered up : — Held, that under the new law providing that no suit shall be dismissed on account of mis- joinder, the plaintiif, in her character of representa- tive of the daughter and of the mother, was entitled to file this bill. Carter v. Sanders, 23 Law J. Rep. (n.s.) Chanc. 679; 2 Drew. 2i8. . Held, also, that the plaintiff, though, personal re- presentative only, might obtain relief as to the real estate; and thi)t as the deeds, were only deposited with a creditor for advances, relief could be granted against tlie. equitable mortgagees; Ibid. ■■' A bill by. a married woman suing by her next friend i:o set aside a compromise of her right to cer- tain real estates, as having been fraudulently -obtain- ed, against the parties to the fraud and her husband, alleging I that- the, latter had refused to join as co- plaintiff ; 4;hi3 refusal was not proved in the cause, and the husband appeared in support of the bill. An objection to the frame of the suit, that the hus- band -ought to have joined as co-plaintiff, held invalid.. Smith Vv Pineomte, 3 Mac, & 6. 653. A bill was filed by-husband, and wife, partly in respect of the wife's separate estate; but, she sued by her next friend. An objection for misjoinder was meimled. Meddmecrofty. Campbell, 13 Beav. 184. A defendant objected to a suit for want of parties alleged to be interested! under an instrument not proved. The objection was overruled, and a decree made reserving their rights. , Ibid. A defendanty A B, objected tliatC D was a neces- sary party. A B's titlein the suit being disallowed, the objection was also overruled. Ibid. (C) Objbctioss AS TO..,, , , The defendants raised an objection for want of parties to the plaintiff's bill. -The plaintiff amended the bill, and added these parties, but omitted to serve them, allegi-ng; that they resided -in Scotland, out df the. jurisdiction: — Held, .that the plaintiff having' acceded to the objection," and-" having added the parties by amendment; wasbound to serve them; and that their residing- in .Scotland was not a valid reason for their not being served. . Moodie y..Ba/iv^'' nister^'ii Law J. Eep. (si.s.) Chane. 1062 ;-)l Drew. 514..- ■■■'. , >:■; .. .- ; -'. - ' -.i;'.-, -,, • '. --■ ■ Held, al30,'\hat the' objection having' been taken by the answer and allowed, the defendants were entitled to the costs of tlie day. Ibid. PARTITION. Form of a decree for partition, since the 13&14 Vict. c. 60, where infants are parties to the suit for the partition. Bowra v. Wright, 20 Law J. Rep. (n.s.) Ghanc. 216; 4 De Gex & S. 265. The partition of a manor and its franchises will be decreed in equity. Ha/niury v. Sussey, 20 Law J. Rep. (n.s.) Chanc. 557; 14 Beav. 152. Tenants in common, plaintiffs in a suit for redemp- tion, are not entitled to a decree for partition in the same suit against the will of the mortgagee. Wat- Mns V. WiUiams, 21 Law J. Rep. (n.s.) Chanc. 601; 3 Mac. & G. 622. In a suit for partition of an estate between two sisters, the Commissioners appointed under the de- cree divided the property into moieties, but were unable to agree as to which moiety should go to each sister. The Court pointed out what circumstances ought to be taken into consideration, and directed the Commissioners to make a separate return. Upon their continuing to disagree, a new commission was directed, and a third Commissioner appointed, in order to avoid the necessity of making a partition by drawing lots. Camming v. Calming, 23 Law J. Rep. (n.s,) Chanc. 879; 2 Drew. 434. A suit foj partition. The plaintiffs were entitled to a moiety, of an estate, and the other moiety belonged to A for life, with rejnainder to B, an infant, in fee. A scheme of partition was prepared under the direction, of the plaintiffs and A. The Court, at the hearing, made a decree for partition according to the scheme without a commission^, Stanley v. Wrigley, 24 Law J. Rep. (n.s.) Chano. 176; 3Sm. &6,,18. Upon the partition of certain lands the mines of lead and coal,, and oth^ mines and minerals, were ejtcepted,:— 7-Held,, that, tliej .term, "minerals" in- cluded only such substances as were dug out of the earth by means of a mime, that is, by means of a '■ pitior tunnel having a roof overhead, and did not include limestone rock, which in the present instance was worked by means of an open quarry having no- . roof. Darnell v. }lopei;i 24 Law J. Rep. (n.s.) Chanc. 779; 3 Drew. 294. iThe plaintiff in a. partition suit was entitled toi 8i3c-sevenths of „the estates, and bad the title-deeds ! - -^Held, that the propei; form of- decree as to the- documents of title was for the delivery to the defen- dant of suchof them as related exclusively to the land which should be allotted to him, and for: thei retainer by the, plaintiff of the rest, he undertaking to abide by any order which the Court might maUfe as to the same, with liberty for either party to .apply. Jows V, SoMnson, S De Gex, M. & 6. 910. , . - - *Sewible — that a devise on.frust to sell anddispose of property; consisting partly, of an undivided share, does not authorize the trustees to concur in a parti- tion-; but wheretrusteeswhohadsucha trust concurred in^.a partition which was shewn to f be beneficial to the oestms que trust, who weie infants, the Court on a claim.: to which the infant cestmisquetrnst were parties! made a decree that the lands shonWbe taken to be dividedrafccordingto the partition already 512 PARTITION— PARTNERS. made. Brassy v. Chalmers, i T>e Gex, M. & G. 528. One of two tenants in common of an estate agreed to grant a lease of the mines under it : — Held, that the lessee was entitled to a decree for specific per- formance and for a partition of the estate. Heatan V. Dewrden, 16 Bea?. 147. A partition will not be set aside on light grounds, or for light matters, or for mere inequality of value of the allotments, if, in making it, the Commissioners have honestly exercised their own judgment. Peers V. Needham,, 19 Beav. 316. It is not necessary that in making a partition an aliquot share of each species, or of each house (if it be house property), should be allotted to each of the tenants in common. Ibid. But where, under a decree for partition amongst three tenants in common, which did not empower the Commissioners to order owelty of par- tition, the Commissioners, upon some previous un- derstanding that two of the tenants in common were willing to take one of the two houses comprising the property without severance, allotted that house to them and the other to the third tenant in common, the return was suppressed. Ibid. PARTNERS. (A) Paktnership. (a) Constitution and Effect of. (1) In general. (2) Participation of Profits. (5) Dissolution of. (1) What amounts to. (2) Notice to dissohe. (3) Cause of Dissolution, (i) Agreement to dissolve. (c) Construction and Validity' of ' Contracts creating it. ' (d) Change of Firm. \e) Effect of Death of Partner. If) Accomtts. (B) Rights and I.iabiuties. "' (C) Po-«rEKs, AHD Disabilities, ,(D) Actions and Suits. (A) PabtnEsship. (a) Constitution 'wnd_ Effect of. (1) III geiieraZ. [See Caldicott v. QriffiAs, title Parties io Actions.] A deed of assignment in the usual form to trustees, for the benefit of creditors, which empowers the trustees to employ the debtor or other person in winding up his aifairs and in collecting and getting in his estate, and in caiTying on his trade. If thought expedient, is a valid deed, and does not constitute a partnership between the creditors. Coate v. Wil- liams, 21 Law J. Rep. (n.s.) Exch. 116; 7 Exch. Rep. 205. A, being entitled to certain letters patent, for a money consideration granted ati exclusive licence to B & Co. for the whole of the term; and by deed covenanted mth B & Co. to serve them as manager of the business for the same period, with power to B & Co., in case of the bankruptcy or insolvency of A, or breach of the covenants on his part, to deter- mine the engagement by notice in writing. B & Co. covenanted with A, that each of the partners would diligently employ himself in the business, and that A should have the management thereof under their directions; that, if A should have duly observed the covenants, B & Co. would pay him a gross sum of money at the expiration of the licence; and further, by way of salary, such a sum of money, every quarter-day, as should be equal to iOl. per cent, of the net proceeds of the business, and in ease of A's death before, would pay his executors during the remainder of the term 30?. per cent, upon the net profits; and it was provided that, in case B & Co. discontinued the business, A should have the option of purchasing their interest in the licence and the stock, &c. ; but that nothing therein contained should constitute A a partner. After the business had been carried on for a time under this arrangement, B & Co. discharged A from being manager on the ground of neglect, who thereupon filed hia bill, praying that B & Co. might be enjoined from excluding him from the management, and for an account : — Held, upon appeal, that the interest of A was not that of a partner in the concern, and that he had no equity; and an injunction before the hearing granted by the Court below was discharged. Stocker v. Brockelhank, 20 Law J. Rep. (n.s.) Chane..401; 3 Mac. & G. 250. Observations as to the style and character of affidavits. Ibid. A mere authority in a, will to continue the testa- tor's assets in trade, does not authorize the executors to trade with them; and partners trading with such assets, with notice, are bound to inquire into the trusts iipon whidh they are held, aiid are liable in respect of them. Travis v. Milne, 20 Law J. Rep. (n.s.) Chanc. 665; 9 Hare, 141. The usual annual stock-takings of a firm do not necessarily represent the'lrue value of a partner's share in the partnership property; and if the object be merely to ascertain the profit and loss of the year, the correctness of the value set upon the items and liabilities of the firm is of infinitely less importance than where the object is to ascertain the exact value of a partner's shate and interest. Ibid,' - '' An executor not proving the will until after his co-executors had iniproperly invested the testator's assets cannot justify taking no step in respect 'of or interfering with them for a considerable period. Ibid. By mercantile custom, one partner may by advances for the purf)ose of business become a creditor of the firm for the amount, and has a right to be credited with interest, if there be no express contract to the contrary — Per Lord Justice imght Brace, Lord Justice Turner doubting. In re the German Miming Compamy, 22 Law J. Rep. (n.s.) Chaho. 926; 4 De Gex, M. & G. 19. ■ -■ ■ Surviving partners held by inference deduced from their conduct to have carried on their business on the same terms as the original partners. King V. Oliucli, 17 Beav. 325. In a partnership between A, B & C there was a stipulation that if one died the sutvivbrs should take PARTNERS; (A) Pahtnekship. ai3 the business and pay his executors hia capital as appearing on the last account. A died, and B and C carried on the business without articles. B after- wards died. The Court from the conduct of the parties inferred that B and C carried on their busi- ness on the same terms as to winding up on the death of either as those which applied to the first partnership between A, B & C, and decreed C to pay to B's executors his capital as appearing on the last account. Ibid, (2) Pmiicipation of Profits. W entered into the following agreement with C: " W engages to take charge of the glebe lands of C, his wife undertaking the dairy and poultry, at 15s. a week, till Michaelmas 1850, and afterwards at a salary of 251. a year, and a third of the clear annual profit, after all expenses of rent and rates, labour and interest on capital, &e., are paid, on a fair valuation made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which time the cottage to be vacated by W, who occupies it as bailiff, in addition to hia salary: — Held, that this agreement consti- tuted the relation of master and servant between C and W, and not that of partners; that W was not a menial servant, but a labourer; and that the agree- ment was admissible in evidence, though unstamped, as it fell within the exemption in the Stamp Act as an agreement for the hire of a labourer. Regina v. Worthy, 22 Law J. Rep. (n.s.) M.C. 44. The plaintiff and the defendant were tailors; the plaintiff employed the defendant to obtain orders for him, and agreed to allow him a certain share of the profits by way of commission upon such orders. The defendant carried on the business with the plaintiff, but his name was not joined with that of the plaintiff. All goods were ordered and paid for by the plaintiff, and all debts were paid to hira alone; the defendant set up a partnership; but it was held, that a right to a share of the profits did not necessarily create a partnership; and there was no evidence to prove a partnership on the part of the defend&nt. Andrews v. Pugli, 24 Law J. Rep. (n.s.) Chanc. ,68. ' (J) Dissolutiok of. (1) What amoimts to. Two solicitors carried on business in co-partner- ship, but for no definite period; one of them gave notice of an immediate dissolution; and refused the other access to the offices: — Held, that the part- nership was to be considered as in existence until wound up, and that the excluded partner was entitled to have access to the offices. Moherts v. Eberhardt, 23 Law J. Rep. (N,s.),Chanc. 201 ; Kay, 148. (2) Notice to dissolve. Under articles of agreement between three part- ners, the partnership was to be dissolved by notice from any of them, on breach of the articles by the others or other. Notice of dissolution having been given by one of the partners, in consequence of a breach of the articles by another, and the third partner having adopted the notice, it was held, that the partnership was dissolved as to all, but without the consequences of the non-oifending partner which attached, under another clause of the articles, to a Digest, 1850—1855. general dissolution. Smith v. Mules, 21 Law J, Rep. (N.s.) Chanc. 803; Hare, 55C. (.B) Cause of Dissolution. Decree made for the dissolution of a partnership in consequence of the lunacy of one of the partners. Leafy. Coles, in re Coles, 1 De Gex, M. & G. 171. (4) Agreement to dissolve. By a deed of dissolution of a partnership the retiring partner agi-ced to assign to the continuing partner all his share in the partnership property, subject to the payment of the retiring partner's share of the debts, and it was agreed that a deed should be executed by which the continuing partner should covenant to pay the debts, and to indemnify the retiring partner and his estate therefrom. No further deed was executed. The continuing partner six years afterwards assigned a policy of assurance which had formed part of the partnership property to a mortgagee for securing money lent, the mortga- gee having had notice of the deed of dissolution. The continuing partner became bankrupt, having neglected to pay some of the debts of the partner- ship, and such debts were recovered against the estate of the retired partner who had died : — Held, (affirming a decision of the Master of the Rolls), that the provisions of the deed of dissolution did not- create a charge upon the property assigned in favour of the retired partner: — Held, also, ^er Im'd Justice Knight Bruce, that even if it had created a charge, still, as the debt was not scheduled or specified, the receipt of the continuing partner would effectually discharge the mortgagee. In re LoMgmead'a Trusts, 24 Law. J. Rep. (n.s.) Chanc. 509, 237; 20 Beav. 20. (c) Construction^ and Validity of Contracts creating it. Two persons seised of freeholds agreed to carry on business in partnership upon the premises for four- teen years, and that if either died during that term, the survivor should purchase the freeholds at a stated price. The fourteen years having expired, they by parol agreement continued the partnership " on tho old terms." One afterwards died intestate : Held, that the stipulation as to purchase was binding, and that the freeholds were converted into personal estate, and did not pass to the heir. jEssexy.Es.seso, 20 Beav. 442. Admissibility of evidence of a parol contract as to the continuance of a partnership where real estate is concerned. Ibid. A tradesman bequeathed his residuary estate, in- cluding his stock in trade, to trustees, with a direction to convert into money all such parts as should not consist of leaseholds or money in the funds, and to invest the same and pay the annual income to Sarah his wife, and after her decease to Mary, his wife's sister, and after the decease of thesurvivorof Sarahand Mary he gave his residuary estate to another person absolutely. After the date of the will, Mary married, and her husband and the testator entered into part- nership under articles, which contained a proviso that if the testator should die during the partnership leaving a widow surviving, such widow might, if she should think fit, continue to carry on tho parfner- sliip business with the surviving partner, and should be entitled to the testator's share in tho profits and SV 514 PARTNERS; (A) Paetnership. excess of capUal; and if the testator should leave no mdow, or his widow should not desire to enter into the business, or if the other partner should die during the partnership, the surviving partner to take upon himself the partnership business and property, accounting and paying for the same as therein directed. The testator died, leaving his widow, who, under this provision, claimed his interest in the part- nership: Held, that the provision in the articles took the testator's share of the business wholly but of the provisions of the will, and that the widow became entitled under the partnership articles to such share. Page v. Cox, 10 Hare, 163. A trust may well be created in the absence of any expression importing confidence, and the obligation on the surviving partner created by the partnership articles with reference to the legal interest in the partnership did not in substance differ from a trust, and therefore the articles of partnership created a trust in favour of the wife, to arise on the death of the testator leaving a widow surviving, which would attach on the property as it should then exist. Ibid. Articles made between three partners directed that the real and leasehold estate of the partnership should be treated as partnership stock, and that before any division of profits the rates, repairs, &c. should be paid, and 51. per cent, interest set apart on the capital and paid to the partners in the pro- portions in which they had advanced it. They afterwards purchased other estates, the purchase- money of which was by the conveyances expressed to be paid by the three partners in equal proportions. The partners subsequently executed a deed, reciting the fact that the purchase-money had been wholly paid by two of the partners, and declaring that until the third partner should pay into the partnership capital a sum equal to that paid by each of the other partners, he should stand possessed Of the undivided third part of the estate in trust for them (the other two partners). Upon the dissolution of the partner- ship, the third partner not having paid any portion of hia Capital, the Court held,' that the real and leasehold estate was nevertheless part of the part- nership capital, and that the effect of the declaratory deed was to charge the legal interest- of the third partner by way of mortgage, with the propbrticinate share of the capital wlirch he ought to have ad- vanced. TiUbits V. Phillips, Wiia.re,Z55. ' Held, also, that in the interini after a dissolution, and whilst the affairs of the partnership were being wound up, the third partner had ceased to be entitJed to the benefit of a provision inthe articles allowing him a salary and the occupation of a house belonging to the partnership, as managing partner, and that a receiver must be appointed. Ibid. Articles of partnership provided that it should be lawful for the holder of two-thirds or more of the partnership shares for the time being to expel any partner, by giving him notice theireof under their bands in the form thereby prescribed; and that im- mediately after giviiig such notice a ' notice ' of the (iissdlution as to the expelled partner should be signed by the partners and published, with power to any other of the expelling Jiartners to sign the name of the expelled partner; and it was provided, that if a partner became bankrupt, insolvent, or was ex- pelled, his interest should cease as to profit and loss as if he had died on the day of such bankruptcy insolvency, or expulsion, and tliat the amount of his share should be ascertained and payment secured by the same arrangement as would have been applicable in case of bis decease; and it was also provided that the shares of retired, deceased, bankrupt, insolvent, or expelled partners, should be disposed of in such way either to or between some or all of the continuing partners, or by the admission of a new partner or partners, as the holders of a majority of shares should determine. The articles provided that in the case of making certain arrangements there should previously be a meeting of the partners in committee, but did not express that any such meeting should be necessary previous to the exercise of the power to expel. The articles also provided for the adjustment of the partners' accounts within sixty days after the 30th of June in each year, when an inventory of all the stock, debts, &c. -should be made, with proper allowances, so as to ascertain the partnership pro- perty, profit and loss, and the shares of the respective partners, which shares were to be carried to their respective accounts; and it was provided that the share of any partner who might wish to retire, if his retirement were consented to by the majority of the others, was to be taken by the continuing partners at the amount at which the same stood at the time for making the yearly rest or settlement : — ^Held, that the power of expulsion of a partner might be exer- cised by two-thirds of the partners, without any pre- vious meeting of the partners in committee upon the question, and without any cause being assigned for such expulsion, but that the power must be exer- cised with good faith, and not against the truth and honour of the contract. Bludet v, Daniel, 1 Hare, in. That such a power must be understood to exist not for the benefit of any particular parties holding two-thirds or more of the shares, but for the benefit of the whole society or partnership, I' Ibid. That it could not be exercised' merely to enable the continuing partners to appropriate to themselves the share of the expelled partner at a fixed value less than' the true value. Ibid. That the power was not properly exercised at the exclusive instance of one partner, and in consequence of his representation to the other partners made without the knowledge and behind the back of the partner who was to be expelled, and without giving to sUdh partner the opportniiity of stating' his case, and of removing any misunderstanding on the pari of his co-paitners. Ibid. ' ' "" ' ' - , (,d) Change ofiwja,..^ The plaintifl', a customer of a banking firm, having brought an action against the firm, was nonsuited, on the ground of two of the defendantsmot being members of the firm at the time of the accruing of the cause of action. Negotiations on the subject of the actipn had been going on for severalyearSj during which the defendants had not questioned their liability to be sued, and in a bill in equity filed by them against the plaintiBi after pleading and before trial, had stated that the liabilities of the previous firmhad been transferred to themselves, and furtliei stated who the members of the firm were when the cause of action accrued. The Court, to prevent the operation of the Statute of Limitations, set aside the nonsuit, and gave the plaintiff leave to amend the PARTNERS J (A) Pamnbrship. 515 declaratioa by striking out the two defendants who had been erroneously included in the action. Ormo- Swi V. Oocfe, 20 Law J. Rep. (n.s.) Exch. 168; 6 Exch. Rep. 287. {^ Effect of Death of PaHner. The plaintiffs were the owners of a woollen mill, which had been occupied by a firm consisting of Abraham, Samuel and William R. William having become a debtor to the defendant, and having died intestate, Abraham took possession of the mill and machinery, and carried on the business without taking out administration to William. The plaintiffs hitving distrained for rent due from the firm, Abraham, on behalf of the firm, assigned to the plaintiffs, in the nature of a mortgage, the fixtures and machinery in satis&ction of the rent in arrear. The defendant afterwards brought an action against Abraham R, as executor de son tort of William, recovered judgment, and took the machinery and fixtures in execution :^-^■ Held, in an action of interpleader, first, that there was no survivorship as to the property in joint chattels in the case of partnership, whether existing between merchants or manufacturers, or any other description of traders. Suchley v. Barber, 20 Law J. Rep. (n.s.) Exch. 114; 6 Exch. Rep. 164. Secondly, that the surviving partners had no power, by virtue of the partnership relation, of transferring to the plaintiffs by. way of mortgage, a legal title; to the share of the deceased partner WiiUam; and that,: at all eventSj ithe transaction was not within the scope of any implied authority which asuriiving partner might have to wind up theaSiits of the partnership. Ibid, i ., - ,, ,. QucBre — whether the .partners could have given titleiby^a sale of the share of thedeceased partner William made for the payment of, his debts, and their own. Ibid. - .i, ,,,,,,; ■ Fourthly, admitting that Abraham, by joining ij), the conveyance, of all the property to the plaintiffs, wouMjitf he, had iheen, lawful executor, have been estDppfedfrom elaiiiing the property of his testator as against them, yet the act of an executor de son tort had no such effect, for his act being good against the true-represantatiivBionly .where it is-,lawful, and such as the , tr,ue representative is bound to perforni in Jthe due course of administjatitecutor, but' who' was not admitted into the''firai'?in that character; and the business continued to be carried on without any, separation or appropriation of the partnership assets as they existed at the testator's death". In a suit against the executor for the ad- ministration Of the testator's' estate, — Held;' thal/he IVas not accountable to the testator's estate for' the profits wbieh'he -had'' received as a partnei' in the bank. ''Simpson r. ChapUcmj i'.De Gex, M. & G. •15'4. '"''■■ " '■' •' -''"'- '■ •■ A partnership of a 'great nutnher of pets'ons Was c'dnstittited before'the passing 6f the' Joint-Stock Coni- pani^S Re'iistration Act. The members subscribed a certain sum aridreceived a sort of scrip certificate, spe- cifyingthe number of SharestO*hich each was entitled. No deed was' exectitedi nOi-HvaS any register 'of Share- holders kept. They'occasionally held meetings, at one of which the drf^ndant' and another person wWe appointed Sole directors and trustees of the property of the association, which 'Consisted ' of liiines, plant a;hd'8M'«'fei ih the i3razil?:'' The defendant sill'viv^d his-''co-trU3tee,'£lhd''displiteS' having arisen; it' hill 518 PARTNERS— PATENT. was filed against him by the plaintiff, who was a derivative shareholder, by purchase, of one of the scrip certificates, for an account of the receipts and payments of the defendant and of the debts of the association, and for payment of sucli debts and a division of the profits, and for a receiver and injunc- tion, but the bill did not pray for a dissolution. Pending a motion for a receiver and injunction, the defendant clandestinely left England for Brazil. Qucere — whether the association was legal; — Held, that the plaintiff having been treated by the defen- dants as a member of the association could maintain the suit. Held, also, that he had an equity to secure the property of the association, and for that purpose a receiver was appointed. Sheppard v. Oxenford, 1 Kay & J. 491. PATENT. (A) (B) (E) (E) When valid or void. (a) Novelty in the Invention. (6) New Combination. (c) Entering Caveat agaiMt, (d) Error in Eiirolment. Specification. {a) Validity and Construction of. (b) Enroiment and Disclaimer. Extension of Letters Patent. Eepeahnq Letters Patent. Assignment and Licence to use. Infringement. (o) What amounts to. (i) Injunction (c) Action for. (i) Injunction and Accowd. (1) Pleas. (2), Particulars of BreacJies and . Objections. (3) Inspection of Machinery. ""' (A) When VALID OR VOID. ; («), Novelty in (lie Inv(niiofi,. In the ordinary process of dyeing by means of madder, the colouring matter is obtained from fresh madder by the application of hot water: The refuel, after boiling, is.ealled " spent madder." It, had long been known to dyers that a portion of the colouring matter remained in the spent madder, but it was not known how to extract it, as it remained in combinar tiott with the plant. Recently it was discovered that by means of acid and hot water the pure colouring matter of madder called " garancine," could be obtained from fresh madder, and that this process extracted all the colouring matter of the plant. The plaintiff obtained a patent for a new manufac- ture of garancine by applying the same process of acid and hot water to the spent madder. Since his inventioa the spent madder, which was previously worthless, became valuable : — Held, in an action for an infringement of the plaintiff's patent, that it was not a question of law for the Judge, but of fact for the jury, whether the plaintiff's invention was a new manufacture of garancine. Sieiiier v. Beald, 20 Law J. Rep. cutting the. hides into shavings,, thin, slices, or, filnjs, whereby the use of blood in the process of purifier-, tion became unnecessary. The specification, did notistate whether they were to be cut wet or dry, or to .what degree of thinness, or what was the miniT mum of heat they ought, to be sul^ected to in the subsequent processes. It was proved that they might be cut either wet or dry, and that .the thinner they were cut. the. better if the fibrine t.ext\ji:e was preserved, and that the mostjsatisfactqry jesplt would be obtained if no, more heat was used thaa.wpvild dissolve the gelatine, in the shortest periodw. The defendant cut the hides, wet and about twelve to .the inch : — Held, that the invention was the subject of a patent, and that the defendant had infringed it. Wallingtmi .V. Dale, %Z Law J. Bep. (n.s.) Exch,. 49; 7, Exch. Rep.,888. , , , A patent had been obtained for improvement? in the means and apparatus for wording under water, in .order to produce excavations and building, founda- tions of lighthouses, ,, piers,, jetties, and , other struc- tures under water. The specification described, a cylinder or caisson of iron, divided into compart- ments and chambers, which was to be sunk to the bottom of the water, ia the place where the founda- tion was to be made. The water was toibe forced out and kept out of the caisson by an air-pump, 80 that by means of the valves and passages specified. PATENT; (A) When valid. $19 workmen might descend within the caisson and ex- cavate at the bottom, and send up the materials to the surface through it. When a sufficient depth was attained, the foundation was to be laid^ and built up of concrete or other materials within the caisson^ each chamber of which was to be thus filled in turn, until the surface was reached, and the lower portion of the caisson itself wag to be left as part of the permanent foundation, inclosing the solid mass of concrete or stone. The specification concluded by saying that the inventor claimed the mode of constructing the interior of a caisson in such a man- ner that the workpeople might be supplied with compressed air, and be able to raise the materials excavated, and to make and construct foundations of buildings as above described. In an action for infringement of the patent, it was pleaded that the invention was not any manner of new manufacture, and the defendants proved that a patent had been obtained for a caisson similar in its construction, but which was to be applied to facilitate excavating, sinking and mining, by keeping outj by means of the compressed air to be forced in, any water that might be met with during the operations : — Held, that the inventor claimed the construction of the caisson itself, and that as this was not new, the Judge was right in telling the jury that the invention was not a new manufacture. £mh v. Fox (in error), 23 Law J. Rep. (n.s.) Exch. 257-; 9 Exch. Rep. 257. The prior deposit of articleSjOf novel manufacture, in a warehouse for sale, is a suffix;ientipublicatiori to defeat a patentee's claim to novelty in the invention of similar articles: •■■MvMvasy. Hart, 3 Car. & K, 297 • ■'■'■■' ■•■ (b) Mew Combination. , A claim for a patent for improvements in the mode' of doing anything by a known processi' is sit^cient to entitle the claimant to a patent far' his improvements, when applied either to the process as known at the time of the claim or to the same pro- cess altered and improved by discoveries subse- quently published, BO long as it remains the same with rfegard to ■theiniprovementsiclairnedj'anditheir application. '' MieCtiie' Telegraph Oo. v. -Brett' and UttU; 20 Law J. Rep; (u.s.) O.P. 123; 1'0'Com. B. Rep. 83«.= ■ '•■ ". •■■ ■■■' ■' ■••■<- • ■■ " ,,,- ■ There may be a patent for a coitibination Of' old and new •mechanism; and such' patent will be in- iringed Ijy using ' so much of the combination as is rtiateirialj and'it will not be lessan infringement be- ctfuie the jfesult is attained by the substitution of a iriechanicEil fequivalent. Sillers y.'J)U}lciMs&n',i2^ Lait' J. Rep. (N.«.') ExCh. 417; 5 Eichl Rep. 312. Where a patent is' granted for a combination of several things, some of which are old and some new, the question for the jury is- whether, taking the specification altogether, that which' is teliimed is a whole is new;^hd the imitation by a' chemical or mechanical equivalent of a part of the Combination, which is both' material and new; is an inlfringement. Neibtmn v.th^Grcmd Junctioii BaUi'Co.,^0 Law J. Rep. (if.g.) Exch. 427, note', 5 Eith. Rep. 831. 'Declai'ation for inftingemrint of a patent for "'Cer^ taiii improvements in valvfes o* plugs for the pSssSge of Water or ■ other fluids." -Pleas— ^not guilty; that the plaintiffs were not the first inventors ; and that the invfention was riot new. At the trial, the plain- tiffs put in the specification, which, after, describing the invention, claimed as "the improvements" three things, each of which, taken by itself, was old:— Held, that on these issues the patentee might give evidence that the real invention he claimed was a combination of these three things, and that the specification was not conclusive evidence on this point. Bateman v. Gray, 22 Law J. Rep. (n.s.) Exch. 290; 8 Exch. Rep, 906. SerMe — that the specification was bad. Ibid. (c) Hireling Caveat against. Where a caveat was lodged-before the Great Seal was affixed to a patent, the Lord Chancellor declined to enter into the merits of the opposition, but re- ferred the matter back to the Attorney General, In re Fawcetfs Patent, 2 De Gex, M. & G. 439, (d) Eivor in Enrolment. Clerical error, consisting of the insertion of the name of " Charles " instead of " George " in the enrolment of a patent, ordered to be amended. In re I>ismore, 18 Beav, 338, (B) Speoipioation. (a) Validity and Construction of. A declaration in scire facias to repeal a patent " for improvements in instruments used for writing and marking, and in the construction of inkstands" contained suggestions, alleging want of novelty and utility in "a' certain 'part" of the said invention; and that the defendant had not properly described the " said " invention, &c. The pWas denied all the suggestions in the declaration. Objections were filed with the declaration under the 5 & 6 Will. 4. c. 83. B. 5. specifying (inter alia) claim No. 6. in the specification, as Objected to for want of novelty and utility. After issue joined, the defendant procured to be enrolled a disclaimer undi* the 5 & 6 Will. 4. c. 83. s. 1, disclaiming (inter alia) the claim No, 6, The claims not disclaimed were for improvements in pen-holders andipsncilrcases, and in the construction of inkstands. Those disclaimed were for pens, and instruments use5 for marking with a stainp : Held, first, that such disclaimer, thqughi eimtl'led' subse- quently to fs3ue'jdRed,-wasadmissible£orthe defen- dant, and .to be read as part of' the original specifi- cation pUt'in by the prosecutor, !; Secondly^ that it was not necessary to plead the. disblaimer' puis darrein continuance. Thirdly, that the objections filed with the declaration under the'S & 6 Will. 4. c;.83.i s. 5. are not part ^nd parcel of the record,iso as to be incorporated! with' the issues, arid shew that those- specific objections are in issue'; 'and that, there-j fore, iticould not be-taken thatisSuehadbeeh jaintea' upon the I Objections 'Which went to the disclaimed' parts ofithe-'inventionv and. that ■those'' issues must therefore he tried,' Fourthly, that the disclaimer, befeig admitted j proved the issues as to a' " certain parfof'tihe 'invention no£. being new or useful, in fevour of the defendant, the prosecutor at the trial having aibahdoned all objections, eicept to the sixth' claim in the specification, whidhhad beeiv disclaimed. Fifthly, that the title Of the patent as regarded "ins'truments used for writing and marking .'.-' was satisfied by the'inventionS fbr improvements in pen* holderk atid'pencil-caBeSj which may be describedaa 520 PATENT; (B) SPECinCATION. instraments used for writing and marking with pens and pencils. Eegina v. Mill, 20 Law J. Eep. (n.s.) C.P. 16; 10 Com. E. Eep. 379. SembU in actions or suits, not being proceedings by scire facias, and which were not pending at the time of the enrolment of a disclaimer under the 5 Sr 6 Will. 4. c. S3. ». 1, the disclaimer is to be deemed and taken to b"? a part of the patent or specification from the time of the granting of the letters patent, and not from the time of its enrol- ment only. Ibid. A declaration in case for the infringement of a patent, " for improvements in giving signals and sounding alarums in distant places by means of electric currents transmitted through metallic cir- cuits," alleged that the defendants had used "the said invention." The specification of the patent made nine several claims in respect of different im- provements. The jury having found an infringe- ment in respect of one of such improvements, that was held to be a sufficient finding of the infringement alleged in the declaration. The Electric Telegraph Co. V. Brett, 20 Law J. Eep. (n.s.) C.P. 123; 10 Com. B. Eep. 838. The title of the patent and every part of the spe- cification in which directions were given for putting the apparatus in use, mentioned " metallic circuits " as the means by which the electric current was to be conveyed, but no claim was made in respect of such circuits. At the time of the patent it was not known, but it was subsequently discovered, that the earth might be used to complete the circuit to an extent of almost one-half of the circuit, and that metal might be dispensed with to that extent, and the defendants had always used this new discovery : — Held, nevertheless, that the defendants, having been found by the jury to have adopted a part of the plaintiffs' invention, the patent had been infringed. Ibid. The jury found that " the sending of sigflals to intermediate stations " was a new invention of tlie patentees and had been adopted by the defendants. There was a distinct claim in the specification for this improvement, and the method of carrying it into effect was pointed out : — Held, that this was the proper subject of a patent; and that the idea and method being obvious and simple did not make any difference; and that the plaintiffs were entitled to a verdict in respect of such finding, although by the defendants' method signals were sent from as well as to intermediate stations. Ibid. The plaintiffs' system was worked by six wires, but no specific claim was made to any particular number of wires or any particular system of making the signals. The defendants used only one wire, and made the signals in a diflferent manner by counting repeated deflections of the needle : — Held, that a finding of the jury " that as a whole the system of counting with one wire and two needles is not the same as the system of the plaintiffs," did not entitle the defendants to a verdict, the plaintiffs' claim not being to any particular system, but to the particular improvements pointed out in his specification. Ibid. In the specificalion of a patent for "improve- ments in looms for weaving," the plaintiff declared that his improvements applied to tliat class of machinery called power-looms, and consisted " in a novel arrangement of mechanism, designed for the purpose of instantly stopping the whole of the work- ing parts of the loom whenever the shuttle stops in the shed." After describing the manner in which that was done in ordinary looms, the specification proceeded thus: — "The principal defect in this arrangement, and which my improvement is intended to obviate, is the frequent breakage of the different parts of the loom, occasioned by the shock of the lathe or slay striking against the 'frog' (which is fixed to the framing). In my improved arrangement the loom is stopped in the following manner: I make use of the ' swell ' and the ' stop-rod-finger' as usual; the construction of the latter, however, is somewhat modified, being of one piece with the small lever which bears against the ' swell,' but instead of its striking a stop or ' frog ' fixed to the framing of the loom, it strikes against a stop or notch upon the upper end of a vertical lever, vibrating upon a pin or stud. The lever is furnished with a small roller or bowl, which acts against a pro- jection on a horizontal lever, causing it to vibrate upon its centre and throw a clutch-box (which con- nects the main driving-pulley to the driving-shaft) out of gear, and allows the main driving-pulley to revolve loosely upon the driving-shaft, at the same time that a projection on the lever strikes against the 'spring-handle' and shifts the strap; simulta- neously with these two movements, the lower end of the vertical beam causes a break to be brought in contact with the fly-wheel of the loom, thus instan- taneously stopping every motion of the loom with- out the slightest shock." After the date of the plaintiff's patent, the defendant obtained a patent for " improvements in and applicable to looms for weaving," and amongst them he claimed a novel arrangement of apparatus for throwing the loom out of gear when the shuttle failed to complete its course. In the defendant's apparatus the " clutch-box " was not used, but instead of it the "stop-rod-finger" acted on a loose piece or sliding frog; but instead of a rigid vertical lever, as in the plaintiff's machine, the defendant used an elastic horizontal lever, and by reason of the pin travelling on an inclined plane the break was applied to the wheel gradually, and not simultaneously. The jury found that the plain- tiff's arrangement of machinery for stopping looms, by means of the action of the " clutch-box " in com- bination with the action of the break, was new and useful; also that the plaintiff's arrangement of ma- chinery for bringing the break into connexion with the flj- wheel was new and useful; and that the de- fendant's arrangement of machinery for the latter purpose was substantially the same as the plaintiff's : — Held, upon these findings, first, that the specifica- tion was good; secondly, that the defendant had in- fringed the patent. Sellers v. Dichinson, 20 Law J. Eep. (n.s.) Exch. 417; S Exch. Rep. 312. The specification of a patent for improved arrange- ments for raising ships' anchors, claimed as the inven- tion of the patentee, a cable-holder, which it described thus: — "The scolloped shell in which the iron chain cable appears in the drawing is upon a new plan, to hold, without slipping, a chain cable of any size, as shewn by the opening form of the scollops at the top and bottom of figure 2." It also claimed as the in- vention of the patentee, " the new form of a scolloped shell (as shewn in figure 2), in conjunction with the arrangements hereinbefore described." A drawing PATENT. 521 attached to the specification shewed that the inner sides of the<;able-holder and the scollops were not to be parallel, but should converge towai'ds the centre of the cable-holder. In an action for an infringe- ment of the patent, it was proved that the specifica- tion and drawings would enable a competent workman to make a cable-holder which would hold chains of ditferent sizes: — Held, that the specification did not sufficiently describe the nature of the invention; that it was at least ambiguous whether it was an invention of-a cable-holder to hold a chain and carry one size, or to hold cables of different sizes, and was therefore had. Rasiings v. Brown, 22 Law J. Eep..(i(.s.) Q,B. 161 ; 1 E. & B. 4S0. A obtained a patent for " an improved turning, table for railway purposes," and in his specification gave a description of the machinery, of which no part was, in fact, new, except certain suspending rods. The 'Combination, however, was both new and useful. In the specification, the patentee claimed as his invention the "improved turning-table hereinbefore described, such my invention being to the best of my knowledge and belief entirely new": — Held, that the specification was insufficient for not shewing what was new and what old. Hohaes v. the London and North- Western Eail. Co., 22 Law J. Eep. (n.s.) C.P. 37; 12 Cora. B. JRep. 831. Declaration for infringement of a patent for " cer- tain improvements in valves or, plugs for the passage of water or oth^r.,fluids." Pleas — Not guilty; that theplaintifFs were not the first inventors; and that the invention was not, new. At the. trial, the plaintiffs put-in thg specifica,tion, which, after, describing the( invention, claimed as, "the improvements," three things, .eacfi, of which, taken by itself, was old. JBate- many.Griiy, 22 Law J,. Rep. (n.s.) Exch. 29,0; 8 Exch, Rep. ,9,06. . Ah importer of a foreign invention, by which' the public is b^tjefited, is entitled to be put on the same footing as an driginal inventor, when applying for a prolongation f6r such' foreign importation. '/» »-e Serrfs Patent, 1 Modte, P.O. 13S. In a cSse, therefore, where' the invention was of considerable commercial value, and the importers had embarked a large capital upon machiner/in trying to' introduce it to general 'use, and incurred considerable loss in so doing, the Judicial Committee recommended an extension of the letters patent for six years. Ibid.' ■, " .■ To entitle an equitable assignee to appear with the 3X 522 PATENT. legal assignees of a patent, on a petition for a prolon- gation of the letters patent, the name of such equita- ble assignee must appear with the other petitioners, in theadvertisements, required bjsection i. of the statute 6 & 6 Will. 4. i;. 83, and rule 2, made in pursuance thereof. In re Nohle's Patent, 7 Moore, P.O. 191. The importer of an invention from abroad is an inventor within the meaning of the statute 5 & 6 Will. 4. c. 83, and entitled to apply for an exten- sion of the term. In re Claridge's Patent, 7 Moore, P.C. 394. But the Judicial Committee will look with jea- lousy into the merits of the invention imported. Ibid. Application for an extension by the trustees of a joint-stock company (the assignees of the patentee) refused; the invention imported having been in com- mon use in France, and no great risk or expenditure incurred by the patentee or his assignees in intro- ducing it to the public. Ibid. Application, under the statute 14 & 15 Vict. c. 99, e. 6, by parties who opposed an extension of letters patent, for production and inspection of the petition- ers* accounts previous to the hearing of the petition refused, with costs. In re Bridson's Patent, 7 Moore, P.C. 499. Costs given to all the opposers upon petitioner's abandoning petition before hearing. Ibid. Where the petition is abandoned, it is not neces- sary that the opposers should serve the petitioners with notice of their intended application. Ibid. On a petition for prolongation of letters patent, a day was fixed for hearing. Objections were lodged against an extension. Before the hearing the peti- tioners abandoned the prosecution of the petition. In such circumstances, costs of opposition allowed to opposer. In re Hornby's Patent, 7 Moore, P.C. 503. The Judicial Committee will not permit a party to be heard in opposition to an application for a pro- longation of the term of letters patent unless a caveat has been entered in his name. In re Lowe's Patent, 8 Moore, P.C. 1. Any one of the public has a right to enter a caveat and to be heard in opposition at the hearing. Ibid. The circumstance of there being lis pendens, respecting the validity of the letters patent, is no objection to the grant of an extension of the original letters patent. In re Heath's Patent, 8 Moore, P.C. 217. Term of letters patent extended for seven years on the ground of the meritorious nature of the in- vention, and the extensive litigation the patentee had been put to in protecting his patent rights which had prevented any remuneration. Ibid. Form of Order in Council, pursuant to the statute, 15 & 16 Vict. c. 83. s. 40, directing the Lord Chan- cellor to make and seal new letters patent, upon the report of the Judicial Committee recommending an extension of the term, under the provisions of the statutes 5 & 6 Vict. s. 83. and 7 & 8 Vict. c. 69. Ibid. No accounts were kept by the deceased patentee of the expenditure or receipts on account of his patent. Upon its appearing that his estate was of little value (his effects being sworn for administration under 100/.) the petitioner, the administratrix of the patentee, on the allegation that there had been no profits, but considerable loss, to such estate, was examiifed to prove that fact. Ibid. Where letters patent (for improvements in ma- chinery, tools, or apparatus for cutting, planing, turning, driUing, and rolling metals) embraced seve- ral subjects, one only of which, namely, the rolling of metals, bad been worked out, and that part of the patent was aifected by subsequent patented improvements by the same patentee, and could not be effectually used without such subsequent improve- ments, the Judicial Committee, before recommend- ing an extension of the term of the first patent, put the petitioner upon terms of disclaiming all the parts of the original patent not worked out, and restricted the prolongation to the unexpired term of the subse- quent patents. In re Bodmer's Patent, 8 Moore, P.C. 282. The provisions of section 25. of the statute 15 & 16 Vict. c. 83, enacting that letters patent obtained in the United Kingdom for patented foreign inventions are not to continue in force after the expiration of the foreign patent, apply only to patents granted in the United Kingdom subsequent to the passing of that statute. Ibid. (D) Bepbalino Letteks Pateht. Semhle — that on a trial upon a sci. fa. to repeal a patent, the on-m proiandi is on the prosecutor, and that he must shew that the patent is void on some one of the grounds contained in the suggestions, and that if the jury think that the case is left in doubt, they ought to find for the defendant. Under the statute, the effect of a caveat lodged at the chambers of the Attorney General is merely to entitle the party lodging it to notice. Begina v. Cutler, 3 Car. & K. 215. Application for liberty to sue on a bond given to the clerk of the Petty Bag for securing costs to the- defendant in scire facias to repeal a patent. Begina v.Mill, UBeav. 312. Pending a proceeding in sci. fa. to repeal a patent, the patentee disclaimed a part, under the 5 & 6 Will. 4. c. 83. The prosecutor still proceeded, and ultimately failed : Held, that he ought to pay the costs subse- quent to the disclaimer. Ibid. After a judgment in scire facias in the Court of Queen's Bench annulling letters patent, and direct- ing that they should be restored to the Court of Chancery to be cancelled, the Lord Chancellor has no jurisdiction to stay the execution of the judgment — his duty in cancelling the enrolment being only ministerial. Begina v. the Eastern Archipelago Co., 4 De Gex, M. & G. 199. Where a petition is presented in the Petty Bag in Chancery to the Lord Chancellor, the clerk of the Petty Bag is the proper officer to draw up the order pronounced on such petition. Ibid. A writ of scire facias having issued out of Chan- cery to repeal certain letters patent, the patentee presented a petition to the Common Law side of the Court, alleging, that the writ contained improper recitals and suggestions, which, if used as a defence in an action at law for the infringement of a patent, would be inadmissible, and praying that the writ might be quashed, or reformed, by striking out the objectionable matter: the Lord Chancellor declined to exercise the jurisdiction reserved to him by the 46th section of the Act 12 & 13 Vict. c. 109, on the ground that, by the 39th section of that act, jurisdic- tion, in such cases, was conferred on the Judges of the PATENT. 523 superior courts of common law, and that they could more satisfactorily dispose of the question of plead- ing involved in the ease. Begi/na v. Hwncock, 5 De Gex, M. & G. 332. (E) ASSIONMBNT AND LICENCE TO nSB. [See Helens v. Hooper, title Covenant, (C). Bower v. Hodges, title Covenant, (F) (c); and Hills V. Laming, title Deed, (C) (e).] The plaintiffs, the assignees of a patent, granted a licence to the defendant to use the patent upon the terms of his paying an annual rent of 2,0002., to be made up at the end of each year; and reserved to themselves the power of determining the licence in the event of default being made in payment of this rent. The defendant failed in paying the rent; but the plaintiflFs, notwithstanding, for several years al- lowed the defendant to use the patent, and received from him a less annual sum than that stipulated. At length, however, they determined the licence, having subsequently to the expiration of the previous year, received from the defendant payments on the tooting of the reduced rent : — Held, that, by so doing, the plaintiffs had elected not .to treat the previous breach as a forfeiture of the licence, and that consequently they were not entitled to an in- junction restraining the defendant from using the patent. Warwick v. Hooper, 3 Mac. & G. 60. (F) Infhingement. {a) What anwmnts to. [See The Electric (B) (o).] Telegraph Co. v. BreM, ;. 39. Eraser v. Hill, 1 Macq. H.L. Cas. 392. No pawnbroking contract stipulating to conceal the name of any partner can be valid. Ibid. But if the contract were legal in its inception, 526 PAWNBROKER— PAYMENT. the mode of carrying it on would not render it illegal. Therefore an equivocal exception which might mean either that the contract was illegal in its incep- tion or that the mode of carrying it on had rendered it illegal Held, a bad exception. Ibid. PAYMENT. [See title Acoobd and Satisfaction.] (A) What AMonsTS to. (B) Plea or Payment. (a) When necessary, {b ) Distributive Plea. (c) Proof of . (C) Of Money into Court. (A) What amounts to. [See Tumey v. Dodwell, title Limitations, Sta- tute OF, ante, p. 463.] A broker who had received money for the ship- page of goods on account of the owners of the ship, offered to pay it to the captain, who was also manag- ing owner, by a cheque. This the captain declined, preferring that the broker should open a credit for him at a bank in New Brunswick in favour of H, which the broker did. The bank accordingly paid H 250/., for which H gave a bill drawn by him in favour of the bank upon the broker, who ac- cepted and paid it when due. The broker having sued the co-ov/ners for the balance of his account, — Held, that this was a good payment of 250^. by the broker and binding the co-owners. Anderson v. Eillies, 21 Law J. JKep. (n.s.) C.P. IfiO; 12 Com. B. Rep. 499. To an action of debt on simple contract, the defendant pleaded, that after the accruing of the debts and causes of action, and before suit, the plaintiff drew a bill on one A B, who accepted the bill, and delivered it to the plaintiff for and on account of the said debts and causes of action, and that the plaintiff received it from A B on such account; that the plaintiff, before suit, indorsed the bill to C D, who was still the holder and entitled to sue A B thereon : — Held, a good answer to the action. Belsliaw v. Bush, 22 Law J. Rep. (n.s.) C.P. 24; 11 Com. B. Eep. 191. Wankford v. WanJcford, Ayloffe v. ScrimpsMre and Stracey v. the Bank of England considered and explained. Ibid. In an action for work done, the defendants pleaded that the work was done under an agreement made by the plaintiff with the defendants to build a church on certain terms; that the plaintiff stopped the works until another agreement was entered into with T P for completing the work ; that T P paid the consideration money under the second agree- ment, and that the plaintiff acccepted the second agreement, and the performance thereof by T P in full satisfaction and discharge of the agreement between the plaintiff and the defendants: — Held, that this plea was bad in substance, because it did not shew that the agreement and payment made by T P were made on behalf of the defendants, or that they adopted them; the case thereby being distinguish- able from Belshaw v. Bush. James v. Isaacs, 22 Law J. Rep. (n.s.) C.P. 73; 12 Com. B. Rep. 791. . The treasurer of a corporation paid to their former clerk (the defendant) his year's salary, both parties believing him authorized to make the payment. In fact, he had no such authority, and the corporation afterwards repudiated the payment, and discharged the defendant from his situation. The defendant kept the money, treating it as having been paid 0!i behalf of the corporation. The plaintiff having, as the present clerk to the corporation, brought this action to recover a sum of money paid to the defen- dant on account of the corporation, and the defendant having pleaded as a set-off the sum so paid to him for his salary, the plaintiff relied on the payment of the salary as an answer: — Held, that the payment was an answer to the set-off, the corporation being entitled to ratify the act of their ' treasurer at the time of trial. Simpson v. Eggington, 24 Law J. Rep. (n.s.) Exch. 312; 10 Exch. Rep. 84S. (B) PiEA OF Payment. (a) When necessary. [See Reg. Gen. Trin. term, 16 Vict., rr. 13, 14, 22 Law .T. Rep. (n.s.) ii; 1 E. & B. App. Ixxxi.] A declaration in debt claimed iil. The only plea was payment and acceptance of 15/. in satisfac- tion of the debt. After issue joined on a traverse to the plea, a verdict was found for the defendant: — Held, that the plaintiff was not entitled to judg- ment non obstante veredicto, because, although the general rule of law is, that payment of a smaller sum cannot be pleaded in satisfaction of a larger, yet, since the Reg. Gen. Trin. term, 1 Vict., which relieves the defendant from pleading payment when a plaintiff by his particulars gives credit for a pay- ment, the Court will after verdict presume, unless the contrary be proved, that the plaintiff' may have delivered particulars, giving credit for payments and so reducing the balance sought to be recovered to an amount less than that covered by the sum stated in the plea. Turner v. Collins, 20 Law J. Rep. (k.s.) Q.B. 259. (6) Distributive Plea. [See Stat. 15 & 16 Vict. ^. 76. ». 75.] Where the plaintiff at the trial proved a debt of 11/. 18«. Id., and the defendant established a defence under one plea as to 18s., under a set-off as to 7/. 8s., and also a payment of 4/. aftei- the commencement of the suit, thus affording an answer to the whole of the plaintiff's demand, — Held, that the payment having been made after the commencement of the suit, the plaintiff was entitled to a verdict with nominal damages, on the plea of set-off. Spradbery V. Gillam, 20 Law J. Eep. (n.s.) Exch. 237; 6 Exch. Rep. 422. (c) Proof of. A joint and several promissory note had been given by the defendant and K to the plaintiffs. K agreed with L and the plaintiffs that the plaintiffs should take L's promissory note in satisfaction of the defendant's liability on his joint and several note. The plaintiffs, having taken L's note on that under- standing, received payment of it from R, authorized by L to pay it : — Held, that in an action on the first note, the above facts might be given in evidence under a plea alleging payment by the defendant. PAYMENT. 527 Thome V. Smith, 20 Law J. Eep. (n.s.) C.P. 71; 2 L. M. & P. P.C. 43. On a settlement of accounts between the plaintiff and the defendant, the latter over-paid the plaintiff 1/. \\s. 5d., which they then agreed should go in discharge of the plaintiff's ensuing account. The plaintiff having afterwards done work for the defen- dant, sued him in debt on the common counts for the amount : — Held, that the defendant had a good defence as to \l. 11a. 5d. imder the general issue. Smith V. Winter, 21 Law J. Rep. (n.s.) C.P. 158; 12 Com. B. Rep. 487. A, being indebted to.B in 2Si, on an over-due bill, gave B 9^. and a fresh bill for the balance of the 2Sl. and interest on renewal, and asked B tOv take the money and the new bill in lieu of the old one. B refused to do so, and returned the fresh bill to A, but kept the 91. though A demanded it back : — Held, per Pollock, C.B. and Piatt, B., that this was evidence to support a plea of payment of SI. ; per Parke, B. and Martin, £., that it proved a set-off only, and not a payment, for that payment post diem requires the assent of both parties, and this payment was clogged with a condition which B refiised to comply with. Thomas v. Cross, 21 Law J. Rep. (n.s.) Exch. 251 ; 7 Exch. Rep. 728. By the rules of a SO/, money club, each member was to pay a weekly sum for each of his shares, and to take his share by sale as the sum of 50i. was paid in by the members, upon giving security to be approved of by the committee. Interest was to be paid from immediately after the sale. B being a member of such club for a 40i. share (which was subject to similar rules as the 502. shares) became a purchaser of a 402. share, and together with the defendant and another person gave a joint promis- sory note to the treasurer of the club for 402. payable on demand with interest. The weekly payments were duly made for some time by A and his sureties, but on their being discontinued an action was brought upon the note for the full amount : — Held, that the weekly payments were not evidence under a plea of payment. Jones v. Cfretton, 22 Law J. Rep. (n.s.) Exch. 247; 8 Exch. Rep. 773. (C) Or Money into Court. [See Stat. 15 & 16 Vict. c. 76. es. 70, 71, 72, 73, and titles Bond — Detinite.] Debt for work and labour. Pleas, except as to 102. parcel, &c. never indebted; secondly, as to 102. other parcel, &c. payment; thirdly, as to 102. ex- cepted, payment into court of 102. Is. in full satis- faction of the said sum of 102. and damages by reason of its non-payment. Replications, joining issue on the first plea; traversing the payment alleged in the second plea ; and to the third plea, that the plaintiff accepted and took out of court the amount paid in, in satisfaction of the causes of action in that plea alleged, and prayed judgment for his costs in that respect. A verdict was found for the plaintiff on the plea of never indebted, for 102. beyond the sum paid into court, and for the defen- dant on the second plea : — Held, that the plaintiff was entitled, under Reg. Gen. Trin. term, 1 Vict., to have allowed him, on taxation, all his costs of suit in respect of the cause of action to which the plea of payment into court had been pleaded, includ- ing the costs of the replication to that plea. Bvm- below V. Whalley, 20 Law J. Rep. (n.s.) Q.B. 262; 16 Q.B. Rep. 397. Payment into court in tort has the same effect as payment into court in actions of indebitatus assump- sit, namely, that of admitting a cause of action, with damages, amounting to the sum paid into court. Story V. Fitmis, 20 Law J. Rep. (n.s.) Exch. 144; G Exch. Rep. 123. Payment into court in tort has the same effect as in actions of vndehitatus assumpsit, namely, that of admitting a cause of action with damages amounting to the sum paid into court; but it has not the effect of admitting the cause of action stated in the decla- ration. Story V. Pimm supported ; Leyla/nd v. Tancred overruled. Schreger v. Garden, 21 Law J. Rep. (N.S.) C.P. 13S; 11 Com. B. Rep. 851. To an action of trover for the conversion of three cows and two calves, the defendant pleaded that the conversion of the cattle in the declariition mentioned, and for which the action was brought, was the sale of the cattle by the defendant, after he had, as surveyor of highways, seized and impounded them according to the statute. The plea then alleged payment of 1 02. into court, and no damages ultra : — Held, on demurrer, that the plea was bad, not being warranted hv the Reg. Gen. Hil.' term, 4 Will. 4. 8. 1 7. JCey v. Thimbleby, 20 Law J. Rep. (h.,s.) Exch. 292; 6 Exch. Rep. 692. Where the declaration in tort is general and un- specific, the payment of money into court admits a cause of action, but not the cause of action sued for; and the plaintiff must give evidence of the cause of action sued for before he can have larger damages than the amount paid into court. If the declaration is specific, so that nothing can be due to the plaintiff from the defendant, unless the defendant admits the particular claim made by the declaration, payment of money into court admits the cause of action sued for, and so stated in the declaration. Perren v. the Monmouthshire Sail, amd Comal Co., 22 Law J. Rep. (U.S.) C.P. 162; 11 Com. B. Rep. 855. The declaration stated a contract by the defen- dants to carry the plaintiff from N to E, and a negligent breach of duty in the performance of that contract, and damage to the plaintiff. Plea, pay- ment of 252. into court. Replication, damages ultra : — Held, that the payment into court admitted the contract and the breach of duty; and that as the damages werfe single, and depended solely on the breach of duty admitted, the plaintiff was not bound to prove negligence in order to entitle him to re- cover more than 252. Ibid. Plea in the general form given by the Common Law Procedure Act of payment into court of 2t, and that the same was enough to satisfy the claim of the plaintiff. Replication, that the defendant did what was complained of under circumstances which did not enable him to pay money into court in the action, and that there was not any statute under or by virtue of which the defendant was authorized or entitled so to do: — Held, upon demurrer, that although the action was one in which the defendant could only be entitled to pay money into court under the special provisions of a statute,'still that the plea in the above general form was good, and the replication, therefore, bad. Thompson v. Shep- i, 24 Law J. Rep. (n.s.) Q.B. 5; 4 E. & B. S3. 528 PERJURY AND FALSE DECLARATIONS. PERJURY AND FALSE DECLARATIONS. [See Oath.] (A) The Offexce of Perjury. (B) Indictment for. (C) Costs of Prosecutor. (D) EVIDEXCE. (E) False Declaratioxs.' (A) The Offence op Pekjuky. An arbitrator, appointed by an order of a county court, under the 77th section of the statute 9 & 10 Vict. c. 95, has no authority to administer an oath, and consequently false swearing by a party sworn before him in the course of a reference is not perjury. Eegina v. HaOett, 20 Law J. Rep. (n.s.) M.C. 197; 2 Den. C.C. 237. On the trial of an ejectment, with a view to prove probate of J's will, P falsely and wilfully swore that he had examined an entry on the copy of the will, which he produced, with the entry in the Act Book of the Ecclesiastical Court of L. The entry did not purport to be a copy of the Act of Court granting probate, but was merely a memorandum of pro- ceedings in the Ecclesiastical Court of L, copied from a book called the Act Book. The Judge was willing to receive the document in evidence, but ultimately it was withdrawn. It was a material question on the trial, whether J died before i particular person : — Held, as the probate of J's will would have been evidence material to the issue, and the document was offered as proof of the probate, and P's state- ments were made with a view to procure the admis- sion of the document in evidence, that P's false evi- dence was sufficiently material to render him indict- able for perjury, although the document was not legallv admissible as proof of the probate. Regina V. PiiillpotU, 21 Law J. Rep. (n.s.) M.C. 18; 3 Car. & K. 135. On the hearing of an application for a bastardy order before Justices, a witness gave false evidence on oath material to the inquiry. A similar applica- tion against the same party for the same matter had been previously heard, and dismissed on the merits : — Held, that whether the first dismissal of the appli- cation was conclusive or not, by way of defence, the Justices, on the second inquiry, had jurisdiction to try the case, and that, therefore, the false swearing was perjury. Regina v. Cook, and Regina v. Sick- ling, 21 Law J. Rep. (n.s.) IH.C. 136. In an action in the county court by an executrix, for goods sold, she falsely swore, on cross-examina- tion, that she had never been tried at the Old Bailey, and had never been in custody at the Thames Police Station : — Held, on the trial of an indictment for perjury, that this evidence was material. Regina v. Lavey, 3 Car. & K. 26. Senible — That whether the evidence be material or not, is a question to be left to the jury. Ibid. (B) Indictment foe. An indictment for perjury alleged, that on the trial of a certain indictment it was material to inquire whether the prisoner "ever got one MiloWilliams to write a letter for her." It then averred that the prisoner on such trial swore " that she never got a Mr. Milo 'Williams (he, the said Milo Williams, being then present in court during the said trial) to write a letter for her." It then proceeded, " whereas in truth and in fact the said M. A. Bennett did get the said Milo Williams to write a letter for her." It was proved that on the trial of the indictment referred to, the prisoner swore that she never got Mr. Milo Williams (who was pointed out to her in court) to write a letter for her; that a particular letter was then shewn to her, and the question put as to this letter, and that she repeated her denial : — Held, that the materiality of the matters assigned as perjury was sufficiently alleged; and that Mr. Milo Williams respecting whom the perjury was assigned, was sufficiently connected with the one Milo "Williams mentioned in the pre- ceding part of the indictment. Regina v. Bennett, 20 Law J. Rep. (n.s.) M.C. 217; 2 Den. C.C. 2-il. An indictment for perjury alleged that in the W County Court of Middlesex, holden, &c. before J M &c., then and there being the Judge of the said court, a certain action on contract then pending in the said court between A L &c. and R H &c. came on to be tried, and was then and there in due form of law heard and tried by and before the said J M, then and there being the Judge of the said county court as aforesaid. Upon which said hearing and trial the said A L &c. tendered herself as a witness on her own behalf, and was then and there, &c. duly sworn, Sic, before the said J M, then and there being Judge of the said court as aforesaid, and then and there having sufficient and competent authority to administer the said oath to the said A L in that behalf: — Held, that the indictment sufficiently shewed that the court was a county court constituted under the statute 9 & 10 Vict. c. 9S. Lavey v. Regina, 21 Law J. Rep. (n.s.) M.C. 10; 17 aB. Rep. 496. Held, also, that although it was not expressly alleged that the action pending in the county court, on the trial of which the oath was administered, was one over which that Court had cognizance, yet, that the jurisdiction of the Court over the action suffi- ciently appeared from the allegation that the action was pending in the court and came on to be tried, and that the Judge had sufficient and competent authority to administer the oath. Ibid. An indictment for perjury, which charges that the defendant "feloniously, corruptly, knowingly, wil- fully and maliciously" swore. Sec, omitting the word " falsely," but concluding " and so the defendant in manner and form aforesaid did commit wilful and corrupt perjury," is bad. Regina v. Oxley, 3 Car. Sl K. 317. (C) Costs op Peosecutob. Where a defendant was convicted on an indict- ment, for perjury in an affidavit, removed by himself by certiorari into the Court ot Queen's Bench, the prosecutors were held entitled to costs under the statute 5 & 6 Wm. & M. c. 11. as " parties grieved or injured," although the false swearing failed of its effect and the prosecutors were only interested as executors in the suit in which the false affidavit was made. Regina v. Major, 21 Law J. Rep. (n.s.) M.C. 221; 1 Dears. C.C. 13. (D) Evidence. On the trial of an indictment against the prisoner for perjury in falsely swearing that only one quar- PERJURY— PLEADING, AT LAW. 529 ter's rent was due from him to his landlord in June 1851, the prosecutor, the landlord, swore that five quarters' rent were due at that time. The prosecu- tor's son also swore that in August 1 8S0 the defen- dant admitted to him that three or four quarters' rent were then due ; — Held, that the evidence of the prosecutor's son did not corroborate his father's evi- dence so as to justify the jury in convicting the pri- soner of perjury, as what the son deposed to was equally consistent with the truth of the prisoner's statement as with that of the prosecutor. Megina v. Bmdter, 21 Law J. Eep. (n s.) M.C. 57; 3 Car. & K. 236. An indictment for perjury, at the Central Criminal Court, charged the prisoner with having committed the perjury on the trial of one D, on a previous in- dictment for a misdemeanour in the same court : — Held, that the minutes and entries of the trial of D made by the officer of the court, and produced by him on the trial of the indictment for perjury, were good evidence to prove that D had been so tried as alleged, and that it was not necessary to produce any record or certificate of the trial of D. Regina v. Nevyman, 21 Law J. Eep. (n.s.) M.C. 7S; 2 Den. C.C. 390. (E) False Declarations. To support an indictment on the statute 6 & 7 Will. 4. c. 86. 8. 41, for making a false statement touching the particulars required to be registered for the purpose of their being inserted in a register of marriage, it is essential that the false statement should have been made wilfully and intentionally, and not by mistake only. Regina Ti.Dv/riboyne, 3Car. &K. 1. Whether prosecution for this offence need not be commenced within three years, qimre. Ibid. PLEADING, AT LAW. (A) In general, (a) FntUlmg. (b) Immaterial StatemerUs. (c) Ceirtamty. {d) Conditions Precedent. (e) Profert wnd Oyer. (/) Oolowr. (g) VideUcet. (B) Declarations. (o) Oommencement and Conclimom. (V) Commum Forms. ( c) Joi/nder of Counts. (d) Exceptions and Conditions. (e) In Inferior Covets. (C) Pleas and Subsequent Pleadings. (o) Pleas amounting to the General Isstte. (i) General Issue hy StaMU. (c) De In}v/ri&. \d) Traverses. (1) General. (2) Special. (e) Nul Tid Record. (D) Equitable Defences. (A) In general. (a) Entitling. [See Stat. 15 & 16 Vict. ^:. 76. ». S4.] Digest, 1850—1865. (5) Immaterial Statements. [See Stat. 15 & 16 Vict. c. 76. s. 49.] (c) Certainty. A declaration against the sheriff for treble damages, under 29 Eliz. c. 4, stated in detail that five several writs of f,. fa. against the plaintiff were delivered to the sheriff, setting out the amount of the indorse- ments, and it was then averred that the sheriff after- wards, under the said several writs respectively, seized the plaintiff's goods to the value of the said writs. It then alleged that the sheriff took for executing the said writs a large sum, to wit, 52?. 12s. 3d., the same being more than he was entitled to by 35/. 18s. Gd., contrary to the form of the statute, whereby an action accrued to the plain- tiff for 1072. 15s. 6d., treble the amount of the damages. To this there was a special demurrer, for not setting out with particularity the amounts taken, and in respect of what fees the excess arose, and that it was not averred that the extortion took place within one year before the commencement of the suit: — Semble — that the declaration did not suf- ficiently shew whether there was one or more seizures, but that this objection was not sufficiently taken by the demurrer, and that in other respects the declaration was good, Berton v. Lawrence, 20 Law J. Rep, (n.s.) Exch. 46; S Exch. Rep, 816, To a declaration for differences on the sale of railway shares, the defendant pleaded generally that the contract was by gaming (under 8 & 9 Vict, c, 109, b, 18). On demurrer, the plea was held bad for vicious generality. Grizewood v. Bla/ne, 21 Law J. Rep. (N.s.) C.P. 46; 11 Com, B, Rep, 538. To an action on a bond, the defendant pleaded that after the making of the writing obligatory, an agreement was made by and between the plaintiff and the defendant, and divers other persons, and sealed with the seal of the plaintiff, and that it was agreed, by the said agreement, that the said agree- ment might be pleaded by the defendant in bar to all demands and proceedings with respect to the alleged claim : — Held, that the plea ought to have set out so much of the deed as operated as a re- lease, and to have expressly averred that the deed did so operate, and that the above plea was, there- fore, bad. Wilson v. Braddyll, 23 Law J. Rep, (n,s,) Exch, 227; 9 Exch, Rep, 718. A declaration stated that the plaintiff entered into the service of the defendant for a term of three years, under an agreement that he, the plaintiff, would during that time use his best endeavours to promote the interests of the defendant, and would attend to and carry out all reasonable requests :— Held, in an action for wrongful dismissal before the end of the term that a plea that the plaintiff did not whilst in the defendant's employ use his best endeavours to promote the interests of the defendant according to the agreement, wherefore he was dis-- missed, disclosed a good defence. Arding v. Lomam, 24 Law J. Rep. (n.s.) Exch. 80; 10 Exch, Rep. 734. (d) Conditions Precedent. [See Stat. IS & 16 Vict. c. 76. ». 57.] A building contract between A and B contained a proviso that the payments thereby agreed to be 3 Y 530 PLEADING, AT LAW. made by B should only be due provided the certi- ficate of the surveyor of B for the time being should first be obtained. A having sued in indebitatus assumpsit for the balance alleged to be due, — Held, that under the general issue, the absence of the cer- tificate was a good answer to the action, and that the plaintifi' was not at liberty to shew that it was withheld fraudulently and in collusion with the defendant. Milner v. Field, 20 Law J. Rep. (n.s.) Exch. 68; S Exch. Rep. 829. In an action by the vendor against the purchaser of an estate for the non-payment of the residue of the purchase-money, the declaration stated, that on, &c., in consideration of 90/. then paid to the plain- tiff by the defendant, and the fiirther sum of 820?. to be paid to the plaintiff on the Ist of November then next, the plaintiff agreed to sell and the defen- dant agreed to buy a certain messuage, &c,, and to pay the plaintiff the residue of the said purchase- money on the 1st of November then next; and that thereupon a conveyance of the said premises and the freehold and inheritance thereof should be made to the defendant by all proper parties at the expense of the plaintiff, provided that the plaintifiF should not be liable to pay the expenses of any attorney whom the defendant should employ to investigate the title; and the plaintiff agreed to deduce a good marketable title to the premises, but the defendant was to be satisfied with the usual conveyance of the freehold of the premises from the lords of the manor, &c. That it was further agreed upon between the plain- tiff and the defendant that, if the completion of the purchase should from any cause on the part of the plaintiff be delayed beyond the said 1st of Novem- ber, the defendant should pay interest on the unpaid portion of the purchase-money, at the rate of 10s. per cent., and if the delay should be caused by the defendant, at the rate of 51. per cent., from the 1st of November until the day of payment, the defen- dant being entitled to the rents and profits and to the possession of the said premises on and from the said 1st of November. The declaration contained a general averment that the plaintiff had performed all things on his part, &c. The defendant pleaded, first, that the plaintiff was not ready and willing to convey the premises; secondly, that the plaintiff did not deduce a good marketable title; and thirdly, that the plaintiff did not tender any deed for con- veying the premises to the defendant; and these pleas each concluded with a verification : — Semble that, according to the construction of the agi'eement, the defendant was not bound to pay the residue of the purchase-money until a good title to the pre- mises was made out by the plaintiff, and he was ready to convey to the defendant; but, held, that as the declaration contained a general averment of performance by the plaintiff of his part of the agree- ment, and the defendant had pleaded over, the declaration was good ; and, that the pleas were bad on special demurrer for concluding with a verifica- tion. Maniyi. Cremonim, 21 Law J. Rep. (n.s.) Exch. 288; 6 Exch. Rep. 808. In a declaration for the non-delivery of goods purchased, an averment of performance by the plaintiff of all conditions precedent, and that all things have been done and happened to entitle the plaintiff to have the goods delivered is sufficient without an averment of his readiness and willingness to pay. . Bentley v. Dawes, 23 Law J. Rep. (n.s.) Exch. 220; 10 Exch. Rep. 734. (e) Profertamd Oyer. [See 15 & 16 Vict. c. 76. ss. SS, S6.] Where a party under section 56. of the 15 & 16 Vict. c. 76. sets out any omitted part of a document pleaded by his opponent, the latter is not called upon to make any answer to it. Hegina v. ike Sadlers Co., 22 Law J. Rep. (n.s.) Q,B. 451; 1 Bail C.C. 183. Since the abolition of profert and oyer by the Common Law Procedure Act, the Court may, on proper cause being shewn, interfere, under its com- mon law jurisdiction, in an action brought by a plaintiff, as executor, to order a stay of proceeding's till probate be taken out and notice thereof given to the defendant. Webb v. Atkins, 23 Law J. Rep. (n.s.) C.P. 96; 14 Com. B. Rep. 401. Action on an award : plea setting out the award and concluding with a demurrer to the declaration : —Held, that by section 56. of the 15 & 16 Vict. c. 76. the award was part of the plea and not of the decla- ration, so as to enable the defendant to demur ; and judgment was given for the plaintiff. Sim v. Ed- mMids, 23 Law J. Rep. (n.s.) C.P. 229; 15 Com. B. Rep. ^40. Semble — that the defendant ought to have set the award out in his plea with or without a prayer of judgment, so as to enable the plaintiff either to traverse and raise any question of fact as to its being the award declared on, or to demur and raise any question of law as to its construction. Ibid. (/) Colom: [No longer necessary in pleading; see 15 & 16 Vict. c. 76. s. 64.] (ff) Videlicet. When a contract is alleged in pleading to have been for "a certain" time or amount, it is sufficient to prove that some specific time or amount was agreed upon, and it is not necessary to prove the precise time or amount laid under a videlicet. Har- ris V. Phillips, 20 Law J. Rep. (n.s.) C.P. 120; 10 Com. B. Rep. 650; 2 L. M. & P. P.C. 164. The declaration stated that the plaintiff promised to hire horses from the defendant, and employ them for a certain space of time, to wit, for the space of one year, and to pay the plaintiff for the use thereof certain hire and reward, to wit, 50^. a year for each of the horses, payable quarterly : — Held, that the allegations after the videlicet were immaterial; that although it was proved that the hiring was for a week, and from week to week, at the hire of 50Z. a year for each horse, payable weekly, there was no fatal variance; that the words "hire and reward" include time as well as amount, and therefore that the words ''payable quarterly" were covered by the videlicet as well as the sum. Ibid. (B) Declabations. (a) Commencement amd Conclusion. [Forms for, see stat. IS & 16 Vict. c. 76. ss. 59, 60.] PLEADING, AT LAW. 531 (5) CommuM Forms.. [See 15 &16 Vict. u. 76. schedule.] A declaration alleged that " the defendants were indebted to the plaintiff for freight," for the convey- ance of goods, &c.,: — Held, bad in substance, it not appearing that the debt was a money debt, or that it was payable before the commencement of the action, but an amendment was allowed. Place y. Potts, 22 Law J. Rep. (h.b.) Exch. 269; 8 Exch. Rep. 705. An action of debt is not maintainable upon an agreement that the defendant would carry certain goods for the plaintiff, in consideration that the defendant would carry a like quantity for the defen- dant. BracegirdU v. Himclcs, 23 Law J. Rep. (ir.B.) Exch. 128; 9 Exch. Rep. 361. A declaration stating that the plaintiff sues the defendant for money found to be due from the de- fendant to the plaintiff upon accounts stated between them, is a sufficient compliance with the form given in the schedule to the Common Law Procedure Act. Pagg v. Miidd, or Nvdd, 23 Law J. Rep. (ir.s.) Q.B. 289; 3 E.& B. 660. A declaration alleged that the plaintiff sued the defendant "for freight for the conveyance by the plaintiff for the defendant, at his request, of goods in ships," &c. : — Held, sufficient after pleading over. WUkiiison v. Sha/rlamd, 24 Law J. Rep. (h.s.) Exch. 116; 10 Exch. Rep. 724. The forms given by the 15 & 16 Vict. o. 76. sched. B, should be followed when applicable. Ibid. (c) Joinder of Cmmts. [See sat. 15 & 16 Vict. c. 76. s. 41; and Reg. Gen. Trinity term, 1853, 22 Law J. Rep. (h.s.) xii.; 1 E. & B. App. Ixxviii.] {d) Exceptions and Conditions. In an action by the freighters against the ship- owner for breach of a charter-party of affreightment, the declaration stated that it was agreed that the vessel should sail to S H and there load coals and proceed to L and deliver the cargo, a certain amount of freight being payable per ton (the act of 6od, the Qaeen's enemies, fire, and all and every other da/ngers and accidents of the sea, rvvers, and navigation of whatever nature and hmd dwimg the said voyage always excepted^. That the charter-party should be in force for six voyages, and that they should not he made later than the last day of February 1853. Averment, that the plaintiffs did all things necessary to entitle them to have the six voyages performed, and had always been ready and willing to do all things required, yet the vessel did not make the six voyages, and that the defendant did not permit the vessel for the fourth time, or for any time except three times after the making of the charter, to pro- ceed to S H and load coals. Plea, that after the making of the charter-party, and before the breach, the last day of February had expired ; — Held, on demurrer, first, that the plea was bad; secondly, that the declaration was good, it not being necessary for the plaintiffs to negative the fact of the defendant being witliin any of the exceptions in the charter- party, it being the duty of the defendant, if he relied upon such exception, to plead it. Wheeler v. Pa- mdge, 23 Law J. Rep. (n.s.) Exch. 221; 9 Exch. Eep. 668. To a declaration upon a written agreement, by which the plaintiff agreed to purchase of the defen- dant his unexpired term in a farm, and all the crops, &c., alleging that the defendant had not delivered up possession, the sixth plea stated that the defendant in his lease covenanted with the lessor not to assign without his consent; that the defendant, being de- sirous of parting with the farm, applied to the agent of the lessor, who stated that if he could find a suc- cessor eligible as tenant in the landlord's opinion, after they had had an opportunity of inquiring and a reference, there would be no obstacle ; that the agreement was made for the purpose of J M be- coming occupier of the farm, and the defendant was induced by the plaintiff and the said J M to enter into the said agreement on the faith and belief that the plaintiff knew, and the plaintiff, to induce the defendant to enter into it, represented, that J M was a person of respectability, and eligible, &c., and could give references; whereas J M was not a person of respectability, and could not give references, &c. , as the plaintiff well knew: — Held, that the sixth plea was a good, though informal, plea of fraud; and that the representation was material to the agreement, and not collateral — distinguishing Feret V. SUl. Oanham v. Parry, 24 Law J. Rep. (N.e.) C.P. 100; 15 Com. B. Rep. 597. (e) In Inferior Courts. The Common Law Procedure Act applies to all pleadings pleaded in the superior courts, whether the action was originally commenced there or not. Messiter v. Pose, 22 Law J. Rep. (n.s.) C.P. 78; 13 Com. B. Rep. 162. A declaration stated that the defendant agreed to serve the plaintiff, and not to leave his seryice with- out notice. Breach, that he left without notice. Plea, that the plaintiff insulted the defendant, and therefore the defendant gave notice that he should leave forthwith, and that he did leave. The plain--' tiff, without leave of the Court or a Judge, replied, talking issue on the plea, and further said that the notice in the declaration was a reasonable notice, and that the notice in the plea was not. The defen- dant thereapon signed judgment under section 86. The Court, without deciding that the judgment was regular, made absolute a rule for setting it aside on terms. Ibid. (C) Pleas akd subsequent Pleadings. (a) Pleas amounting to the general Issue. In an action on the indebitatus counts, the defen- dant pleaded that the debt was due for certain hops bargained and sold, that the plaintiff produced a sample at the bargain and sale, and promised to deliver the hops equal in quality and description to the sample, and that the hops were not equal in quality and description, wherefore the defendant refused to accept them, and broke his promise; On special demurrer, the plea was held had, as amounting to the general issue. Dawson v. ColUs, 20 Law J. Rep. (h.s.) C.P. 116; 10 Com. B. Rep. 523; 2 L. M. & P. P.C. 14. Semble — that on a sale of specific goods, with a warranty that they correspond to a sample, the vendee cannot refuse to receive them on account of their not corresponding, without an express condition to that effect; but that he is left to bring his cross- 532 PLEADING, AT LAW; (C) Pleas akd sdBSEQTJENi Pleadings. action, or to avail himself of the breach of war- rantv in reduction of damages in an action for the price. [Commenting on Street v. £lay, 2 B. & Ad. 456.] Ibid. The declaration claimed 1,000?. for goods sold and delivered, goods bargained and sold, and on an ac- count stated. The plea, pleaded as to 19\l., parcel, &c., averred that the debt to that amount was for goods bargained and sold. Qucere — ^whether the plea would not have been bad, on special demurrer, for attempting to limit the plaintiff in his proof as to the sum of 191?. Ibid. A declaration stated, that the plaintiffs were the promoters of a railway company, and the defendants members of a managing committee of a provision- ally registered railway company, and that the defen- dants were indebted to the plaintiffs in 3,000?. for certain plans, sections and books of reference, sold and delivered by the plaintiffs to the defendants, and by them used, and also for work and -materials. Plea, that at, &c. each of the said companies was a joint-stock company within the meaning of the Joint-Stock Companies Registration Act (the 7 & 8 Vict. c. 110), and not being a banking company; that it consisted of more than twenty-five members; and that a contract was made between the plaintiffs, as such promoters of the first company, on behalf of the same company, and the promoters, of whom the defendants then were two, of the said secondly- mentioned company, whereby the plaintiffs agreed that they, the plaintiffs, and the said first-mentioned company should perform certain services for the said secondly-mentioned company, which said services and the said payment of which were not necessarily required for the establishing of the said company, or either of them; that the work was done by the plaintiffs in their character of promoters, and an account stated also in the same character; and that neither of the companies was completely registered as required by the said act of parliament, or incor- porated by statute or charter, or authorized by statute or letters patent to sue and be sued in the name of any officer or person; and that the said plans, sections and books of reference at the time of the making of the said contract, and at the time of the said sale, &c., and using of the said plans, sections and books of reference were stores not necessarily required for the establishing of the said company; of all which premises the plaintiffs had notice at the time of the said making of the said contract and promise, and at the time of the said doing the said work and pro- viding the said materials, and so selling and delivering, depositing, appropriating and using the said plans, sections and books of reference, and so paying the said money, &c. : — Held, that as the contract for services and work was forbidden by the act, and was therefore illegal, the plea was not bad on special demurrer as amounting to non assumpsit; and that it was good on general demurrer, as it was a good answer to the action, Bull v. Chapman^ 22 Law J. Rep. (N.S.) Exch. 257; 8 Exch. Rep. 444. (6) General Issue hy Statute. [See Thomas v. Stephenson, title Weights ahd Heasdres.] The clerk of a county court, against whom an action of trespass is brought, may give special matter in evidence under a plea of " not guilty by statute," bv virtue of the 13 & 14 Vict. c. 61. s.l9. Dews V. li'yley, 20 Law J. Rep. (n.s.) C.P. 264; 11 Com. B. Rep. 434; 2 L. M. & P. P.O. 544. Case against the keeper of the Queen's Prison for not having the body of a debtor before the Ex- chequer pursuant to a writ of -habeas corpus ad satisfaciendum. Plea, not guilty by statute. The defendant had in his custody a debtor, detained at the suit of the plaintiff on a ca. sa. from the Palace Court. The debtor stibsequently petitioned the Insolvent Court for his discharge under 1 & 2 Vict, t. 110. B. 35. On the 7th of January the vesting order was made. On the 27th of March the plain- tiff sued out a habeas corpus ad satisfaciendum, returnable on the 16th of April, to charge the defendant in execution. On the 8th of April the Insolvent Court ordered the debtor to be discharged forthwiik as to debts due on the 7th of January, excepting a debt due from the plaintiff, and as to that that he should be discharged as soon as he should have been in custody at the suit of the plain- tiff for three months to ie computed from the time of the vesting order. The warrant, dated the 9th of April, directed the discharge of the debtor in con- formity with the terms of the vesting order, and on that day the prisoner was discharged. The defen- dant, on the 15th of April, returned to the writ of habeas that the debtor was discharged by a warrant of the Insolvent Court: — Held, that the defendant was entitled to give the act and the special matter in evidence under the plea of not guilty by statute, pursuant to the 1 & 2 Vict. c. 110. s. 110. Eaney V. Hudson, 20 Law J. Rep. (h.s.) Exch. 11; 6 Exch. Rep. 845. Qiiwre — if the defence was open to the defendant under the plea of not guilty. Ibid. The Municipal Corporations Act, 5 & 6 Will. 4. c. 76, by section 76. provides that constables ap- pointed for a borough shall, not only within the borough, but also within the county in which such borough is situate, have all such powers and privi- leges and be liable to all such duties as any constable duly appointed now has, or hereafter may have, within his constablewick by virtue of the common law or of any statute made or to be made; and by section 133. in all actions against any person for any- thing done in pursuance of that act, the defendant may plead the general issue, and give the special matter in evidence thereunder. The defendant, who was a borough constable appointed under the 5 & 6 Will. 4. c. 76, was sued in replevin for an act done in discharge of his duty as a constable under that act, beyond the limits of the borough, but within the county in which the borough was situate : — Held, that he was entitled, under the general issue of non cepit, to give the special matter of defence in evi- dence. Mellor V. Leather, 22 Law J. Rep. (n.s.) M.C. 76; 1 E. &B. 619. The Court allowed the defendant to amend a plea of " not guilty by statute," by inserting in the margin statutes necessary to justify the trespass complained of, after verdict for the defendant and a rule nisi to set it a^ide. Edwards v. Hodges, 24 Law J, Rep. (N.S.) M.C. 81; 15 Com. B. Rep. 477. (c) De Injurid, [See Worsley v. the South Devon Rail. Co., title Lands Clauses Act, (D) (6) (1).] PLEADING, AT LAW; (C) Pmas and subsequent PiEADiKGS. 533 In trespass for breaking and entering the plaintiff's house and taking his goods, defendant pleaded a jus- tification under a fi. fa. and warrant of execution against the goods of one G H, which warrant was delivered to the defendant, a bailiff, to be executed, and that under the authority of the same the defen- dant entered, &c. The plaintiff replied de injwrid, admitting the writ, the making of the warrant, and the delivery thereof to the baihff: — Held, that the existence of a warrant was admitted by the replica- tion, and that the defendant was not bound to prove it. Hewitt V. Macquvre, 21 Law J. Rep. (u.s.) Exch. 30; 7 Exch. Rep. 80. Trespass for breaking and entering the plaintiff's house and seizing his goods. Plea, that one Thomas held a house as tenant to P, that the rent was in arrear, that the said goods being thegoods of Thomas were fraudulently and clandestinely carried off by him from his house to prevent a distress, and were with the plaintiff's consent placed in the plaintiff's house, whereupon the defendant as bailiff of P seized the goods as a distress. Replication, that the goods were not the goods of Thomas, nor were they frau- dulently and clandestinely carried off by him, &c. : — Held, on special demurrer for duplicity, that the re- plication was good. Thomas v. Watkiris, 21 Law J. Rep. (n.s.) Exch. 215; 7 Exch. Rep. 630. (d) Trwverses. (1) General. The Common Law Procedure Act, 1852, (IS & 16 Vict. c. 76. ss. 77, 79), allowing a plaintiff to traverse the whole of a defendant's plea by a general denial, only enables him to traverse generally what he might have traversed in part before; and where a plaintiff, before the Common Law Procedure Act, must have new assigned, he must do so still. Glover v. Dixon^ 23 Law J. Rep. (h.s.) Exch. 12; 9 Exch. Rep. 168. To a declaration fur trespass the defendant pleaded a justification under a prescriptive right to enter a close and dig sand, alleging that the trespasses were committed in the exercise of that right, and the plaintiff joined issue on that plea: — Held, that the issue was proved by evidence of the right, although at the time of the trespass complained of the defen- dant did not exercise the right; and that the plaintiff ought to have new assigned. Ibid. (2) Special. The first count of a declaration averred that the plaintiffs C and S, being tenants to H of certain chambers, at a certain rent, payable quarterly, under- let them to the defendant, who undertook to pay the said rent to H, and agreed that if he did not do so, he would indemnify the plaintifft in respect thereof, and that the defendant did not pay the rent to H, nor indemnify the plaintiffs. Pleas — Sixth, sur- render by operation of law; seventh, that the plaintiff C, on behalf of himself and the plaintiff S, agreed with the defendant that he should give up posses- sion of the chambers, and that he did give up pos- session before the rent became payable; eighth, that C, with the sanction and authority of his co-plaintiff, evicted the defendant; eleventh, (to counts for use and occupation, and on an account stated,) discharge of the defendant under the Insolvent Debtors Act. Replication to ■ the sixth plea, a special traverse, alleging that the defendant quitted possession of his own wrong; and that, according to the terms of an agreement, the plaintiffs recovered possession of the chambers, to the intent that they might let them for the benefit of the defendant, and not otherwise, absque hoc they were duly surrendered: — Held bad, on demurrer, because the inducement was inconsistent with the traverse. Smith v. Lovdl, 20 Law J. Rep. (n.s.) C.P. 37; 10 Com. B. Rep. 6. Replication to the seventh plea, traversing the agreement by the plaintiff C on behalf of himself and S, and his performance of the agreement; and repli- cation to the eighth plea, traversing the eviction by C, with the sanction and authority of S: — Held bad, on general demurrer, as both being too large, from putting in issue the fact that C had authority from B. Ibid. In a special traverse, both the inducement and the traverse should be sufficient. The test whether the traverse be sufficient or not is, whether the former pleading would be sufficient if the allegation traversed were struck out of it. Boster v. CraVb, 21 Law J. Rep. (h.s.) C.P. 209; 12 Com. B. Rep. 379. In detinue for a deed, the defendant pleaded that S, one of two co-trustees, under the deed, for the plain- tiff, the cestui que trust, got possession of the deed ; that S delivered it to the defendant, to be redelivered to him on request, and that the defendant detains the deed on behalf of S, and by his authority. The plaintiff rephed, that G, and not S, was possessed of the deed, and delivered it to the defendant at the request and by the authority of the plaintiff, and that the defendant holds the deed by virtue of such request and authority, alsque hoc that S delivered the deed to the defendant, rnodo etformd: — Held, that the replication was good. Ibid. (e) Nul Tiel Record. The declaration in an action for slander alleged the plaintiff to be a trader, and that the words were spoken of him as a trader. The words were " He cheated me" (meaning that the plaintiff in the way of his trade was dishonest). " He is a thief and lobbed me of lOOi." (meaning that the plaintiff in the way of his trade had contracted a debt with the defendant, and in a dishonest manner avoided paying part of it). There were other similar words simi- larly explained in other counts. There was then an averment of special damage. Plea, judgment re- covered for the same grievances. Replication nul tiel record. On the trial by the record, a record of a previous action for slander by the plaintiff against the defendant was produced, in which the words were, " that thief is a villain, a scoundrel and a rascal, and I can prove him a thief any moment." In that action there was no inducement that the words were spoken of the plaintiff as a trader, and no averment of special damage: — Held, that the record produced did not support the plea that the grievances for which the judgment' had been recovered were the same. Wadsworth v. Bentley, 23 Law J. Rep. (n.s.) Q.B. 3; 1 Bail C.C. 203. Where on an issue on a plea of nul tiel record there appeared a variance between the sum recovered, as stated in the declaration and on the record, on motion for judgment the Court allowed the decla- ration to be amended, by inserting the amount as it appeared bv the record. Hunler v. Emmamuel, 24 Law J. Rep. (n.s.) C.P. 16; IS Com. B. Rep. 290. 534 PLEADING, AT LAW-PLEADING, IN EQUITY. (D) Equitable Defences. The 83rd section of the Common Law Procedure Act, 1854, (17 & 18 Vict. c. 12.5), which permits equitable defences in " all causes," applies only to causes where there are pleadings, and therefore does not apply to the action of ejectment, in which all pleadings are abolished by the 163th and 178th sections of the Common Law Procedure Act, 1852, (15 & 16 Vict. c. 76). Neave v. Avery, 24 Law J. Eep. (h.s.) C.P. 207; 16 Com. B. Rep. 328. By the 178th section of that act, the issue in eject- ment is to be made up by the plaintiff without plead- ings; and therefore, where the plaintiff, instead of malting up the issue, demurred to an equitable plea ■which the defendant had pleaded, the Court struck the demurrer out of the paper, leaving the plaintiff to apply for leave to strike out the plea and make up the issue. Ibid. It is not necessary, in order to give the Court power to grant a defendant leave to plead an equitable de- fence along with other pleas, (under the Common Law Procedure Act, 1854, s. 83.) that the defendant should be entitled tn unconditional relief in equity — contrary to The Mines Royal Societies v. Maynay. Chilton v. Oarrimgton, 24 Law J. Rep. (u.s.) C.P. 153; 16 Com. B. Rep. 206. In an action of detinue for a lease, the Court allowed the defendants, along with pleas traversing the detention and the property, to plead a plea stating that a previous action had been brought by one P for the detention of the same lease, and judg- ment for damages recovered, and that ISO/., as secu- rity for which the lease had been deposited, had not been paid, and a further plea, professing to be a " defence on equitable grounds," under the 83rd section of the Common Law Procedure Act, which alleged that the lease was deposited as security for the payment of 150/. by way of equitable mortgage, that the money was still due, and that the defendant had, after the commencement of the former action, tendered and offered to deliver up the lease on the payment of the money, and had tendered the costs of the action up to that time. Ibid. The effect of giving the common law courts juris- diction to receive defences on equitable grounds is to enable parties to set up only what would be absolute defences in equitv. Phelps v. Proihero, 24 Law J. Rep. (n.s.) C.P.'255; 16 Com. B. Rep. 370. In an action of trover the following plea wag allowed to be pleaded, with other pleas, upon an affidavit of its truth : " That the plaintiff' was the owner of certain chemical works; that the goods for which the action was brought were stock in trade and materials on the premises; that the defendant agreed to purchase the said chemical works from the plaintiff, and that the goods in question were included in the goods sold; that certain brokers were employed by the plaintiff and the defendant to make the contract; that they made it by bought and sold notes, and that by mij.take of the brokers they so made the notes that they include the goods in question; that posses- sion of the chemical works, with the goods in question, have been delivered to the defendant, and that the purchase has been completed, and the purchase- money paid ; and that the plaintiff is unjustly availing himself of what was a mistake in the drawing of the bought and sold notes so as before mentioned made by the brokers." Steele v. Haddock, 24 Law J. Eep. (h.b) Exch. 78; 10 Exch. Rep. 643. The plaintiffs having brought an action against the defendant, who was their tenant of a mill, for breaches of covenant in a lease as to paying rent and repairing, the defendant proposed to plead the following plea as an equitable defence ; that it was agreed between the plaintiffs and the defendant that the defendant should surrender by yielding up to the plaintiffs the premises in his occupation; and permitting the plaintiffs to receive the rent, and the tenants of the other portions to attorn, and that the defendant should pay the sum of 250/. and give up a quantity of machinery to the plaintiffs, in consider- ation of the tenancy being put an end to and in discharge of all claims under the said lease. That the defendant accordingly paid such sum of money and delivered up the lease, and withdrew from pos- session of the premises occupied by him, and per- mitted the plaintiffs to receive the rents of the tenants who were willing to attorn, and that the defendant relinquished also the machinery, and had done all conditions precedent, and had been ready and willing to do all other things necessary on his part for putting an end to the tenancy and by way of satis- faction as aforesaid ; and that this action was brought in fraud and breach of the faid agreement, and it was entirely the fault of the plaintiffs that such sur- render was not completed : — Held, that such plea did not constitute an equitable defence, within the 17 & 18 Vict. c. 125. ss. 83, 86, (the Common Law Procedure Act, 1854,) as a Court of equity would not either compel performance of the agreement between the parties or restrain the plaintiffs from executing their judgment without at the same time compelling the defendant to execute a surrender in writing, pursuant to the Statute of Frauds; and this Court had no power to compel the defendant to execute such surrender. Tlie Mines Royal Society V. Magnay, 20 Law J. Rep. (n.s.) Exch. 7; 10 Exch. Rep. 489. The power of the Court to act under the above sections is confined to cases where they are empow- ered to grant an injunction absolute and without terms. Ibid. PLEADING, IN EQUITY. (A) Bill. (a) Statements and Charges im. (b) Multifariousness. (c) Of Revivor. (B) Demubree. (C) Answer. (D) Plea. (A) Bill. (a) Statements and Charges in. A plaintiff in an administration suit upon a refer- ence for taking the accounts cannot include an inquiry as to wilful neglect and default, unless there is a specific charge to that effect in the bill. The general charge of neglect and default is not sufficient. Sawyer v. Mills, 20 Law J. Rep. (n.s.) Chanc. 80. The purpose of a bill of discovery is not altered PLRADING, IN EQUITY; (A) BiiL. 535 by words added to the prayer asking " that such other orders might be made as the nature of the case might require;" and a motion to dismiss the bill for want of prosecution was refused, but, in con- sequence of the addition to the prayer, without costs. Tlie Sovkih-Eastern Rail. Go. v. tlie Svhmanne Tele- graph Co., 23 Law J. Eep. (n.s.) Chanc. 183; 18 Beav. 429. (5) Midtifariousness. A bill is not multifarious because it includes matters which are incidentally included in another suit, in which it does not appear they could be satis- factorily determined, and which have become in- volved with other matters in the suit by reason of the dealings of the parties interested in them and other property. Rump v. Greenhill, 24 Law J. Rep. (n.s.) Chanc. 90; 20 Beav. 612. The joining parties in a suit who are interested only in the shares of particular parties in the suit will not make such suit multifarious; and a demurrer to the bill in such a suit was overruled. Ibid. The existence of an administration suit com- menced by summons will not prevent the institution of a suit by bill, if questions necessary to be deter- mined before admiuistration cannot be duly raised or determined in such suit. Ibid. The Court refused to make a decree in a suit for specific performance of several contracts for the purchase of lands by some on behalf of themselves and- all others of the purchasers, although the lands were held by the vendors under the same title, and the contracts were made under the same circum- stances, and their completion was prevented by the same accident, namely, the death of one of the two vendors, who had a joint power of appointment, but several purchasers and sub -purchasers under such distinct contracts having joined as co-plaintiffs in the same suit, and the parties interested m the estate not objecting for multifariousness, the Court decreed the specific performance of the different contracts in one suit. Ha/rgreaves v. Wright, 10 Hare, App. Ivi. (c) Of Revivor, A B being entitled to a share of the produce of a testatrix's real and personal estate, instituted a suit for its recovery and obtained a decree. C D after- wards filed a bill of revivor and supplement, stating that A B was domiciled at Stuttgard, and that by a decree of the Court there he had beeir appointed " cwraUyr honoruvi,'''' and directed to get in the pro- perty for A B's creditors. The bill prayed a revivor and liberty to prosecute the original suit for pay- ment and additional relief. A general demurrer was allowed, on the ground that the relief thus prayed could only be obtained bv original bill. Stackle v. Winter, 20 Beav. 550. (B) DBMnKREB. A covenanted with trustees to pay an annuity for the benefit of a woman. The trustees brought an action upon the covenant against A, the deed being good upon the face of it. A pleaded that the consi- deration for the covenant was future illicit cohabita- tion between himself and the woman, and he then filed his bill against the trustees for discovery in aid of the plea. Upon demurrer to the bill by the trustees, held, reversing the order below, that A was entitled to the discovery, notwithstanding he was particeps crim/mis. Benyon v. NettUfold, 20 Law J. Rep. (n.s.) Chanc. 186; 3Mac.&G.94: reversing 18 Law J. Rep. (n,s.) Chanc. 445. A plaintiff, whose case wholly fails, will not be allowed to perfect it by the gift or waiver of one defendant against another. Ilollingswarth v. ShaJce- shaft, 21 Law J. Rep. (n.s.) Chanc. 722 ; 14 Beav. 492. If the case made by the bill is clear, a defendant who brought the cause to a hearing instead of demur- ring, was refused all costs though he succeeded. Ibid. A bill in equity will not lie for a simple case of debtor and creditor account of monies received and paid by one party on account of another, notwith- standing the bill alleges that the debtor sold property of such plaintiff, and received thje proceeds on his account. Phillips v. Phillips, 22 Law J. Rep. (n.s.) Chanc. 141; 9 Hare, 471. The plaintiff, W A, a domiciled Scotchman, through his stock-brokers in England, had various transactions for the feigned purchase and sale of shares and stock in railway and other companies; it was never intended that they should be completed by delivery of the stock, being merely time-bargains, a gambling for differences between the prices at which the shares or stock were nominally purchased and sold. The brokers obtained from W A a deposit of certain shares as security for any balance "which might be due to them, and also stipulated for a bond or Judge's order both in England and Scot- land as a further security. The defendants rendered an account, and then sold the deposited shares, but as the proceeds did not discharge the balance due to them, they brought an action against him in the Sheriff's Court in Scotland for the balance, and arrested his goods there, and a commission was issued for the purpose of taking evidence in England. "W A then filed his bill in England, asking discovery and for an account; and for an injunction to restrain the defendants from proceeding with the action in Scotland, at the same time offering to pay what was due, and submitting all his property in Scotland, subject to the arrestments, to the jurisdiction of this Court. Upon a general demurrer to the bill, — Held, that the illegality of the transaction could not be then considered ; that it was no ground for .stopping the proceedings in a foreign court; that, from the allegation that evidence of the transactions could not, by the law of Scotland, be received in the Sheriff's Court from the plaintiff and the defen- dants, there was ground to suppose that complete justice could not be done there. The demurrer was therefore, overruled, and the costs were made costs in the cause. Ainslie v. Sims, 23 Law J. Rep. (n.s.) Chanc. 161. Parties interested, not being the legal personal re- presentatives of a testator, will not be allowed to sue persons possessed of assets of the testator, unless they satisfy the Court that such assets would probably be lost if such suit had not been instituted. Stainton V. the GarronCompany, 23 Law J. Rep. (n.s.) Chanc. 299; 18 Beav. 146. What acts will justify the institution of a suit by parties having no legal right to sue. Ibid. A shareholder of a trading company, who was also one of its managers, appointed three persons execu- tors and trustees of liis will, two of whom were also 536 PLEADING, IN EQUITY; (B) Demurrer. managers of the company. The testator, at his de- cease, had an account with the company, which was unsettled, and in respect of which disputes arose. Pending proceedings instituted by the executors, two of the residuary legatees filed their bill against the company and the executors for the settlement of all claims, and to obtain a transfer of the property of the testator from the company. Upon demurrer to the bill by the company, and by one of the executors and trustees who had not proved the testator's will, Held, that in order to maintain the suit, special circumstances must be shewn by the bill, as the plaintiffs had no legal right to sue; and sufficient grounds for sustaining such a bill not having been shewn, both the demurrers were allowed. Ibid. A party paid to an auctioneer, the agent for a proposed vendor, 50Z. "as a deposit and part pay- ment of IjOOOi." for the purchase of hereditaments, and received a receipt for the same, containing the words " the terms to be expressed in an agreement to be signed as soon as prepared." He had previously approved of the draft of the contract. At the time of taking the receipt, he agreed to sign the contract on the following morning. This he ultimately refused to do, and, by his solicitor, demanded back the 501, . The proposed vendor filed a bill for specific perform- ance, to which a demurrer was put in setting up the Statute of Frauds as a defence, no agreement having been signed : — Held, overruling a decision of one of the Vice Chancellors, that the demurrer was a good defence to the bill. Wood v. Midgley, 23 Law J. Rep. (N.s.) Chanc. 5S3; S De Gex, M. & G. 41; 2 Sm. & G. 115. Held, also, but in accordance with the Vice Chan- cellor*s view, that the demurrer stating *' that it ap- pears by the bill that neither the agreement which is alleged by the bill and of which the bill prays the specific performance, nor any memorandum or note thereof, was ever signed by this defendant, nor any other person lawfully authorized within the meaning of the statute," &c., was not a speaking demurrer. Ibid. Held, also, that the Statute of Frauds may be set up by demurrer as well as by plea. Ibid. Bill filed by two shareholders in a projected com- pany, on behalf of themselves and the other persons who had contributed, against the directors, charging fraud and misrepresentation in getting up the com- pany, and claiming repayment of the deposits. One of the defendants demurred, on the ground that he had not become a director until after the transactions of which the bill complained, and also that the two plaintiffs could not properly join together in suing, the fraud complained of by them being separate and distinct: — Held, that thedemurring defendant, though not an original director, had participated in and as- sisted to carry out the alleged fraud, and that there was no improper joinder of the plaintiffs, they having a common interest against the defendants. Beechiiig V. Lloyd, 24 Law J. Rep. (n.s.) Chanc. 679; 3 Drew. 227. The plaintiff demised a number of small lease- hold houses to the defendant, who having committed a forfeiture, the plaintiff re-entered and determined the lease. The defendant thereupon distrained on the tenants and prevented the plaintiff taking possession and repairing, and the plaintiff appre- hended a forfeiture. The defendant had also, being insolvent, received the rents; and, in consequence of his conduct, the property had become greatly depre- ciated, and some of the houses had been abandoned by the tenants. The bill prayed an account of the rents, an injunction to restrain the defendant from receiving the rents and distraining, and that the right might be determined under the Court. A general demurrer was allowed. Aldist. Fraser, 15 Beav. 215. A bill was filed by A and his wife alleging title in respect of the wife's estate tail. The defendant demurred for want of equity. While the demurrer was standing for argument the wife died, and then A filed a supplemental bill, alleging a disentailing deed before the date of the original bill under which A claimed in fee : — Held, that in this state of things the demurrer could not be heard; that such an alteration of the record was not properly the subject of either sup- plemental or of original bill in the nature of a supple- mental bill, or of a bill of revivor, nor properly of amendment, but the original bill ought to have been left to take its course and a new bill filed stating the real title. Wright v. Vernon, 1 Drew. 68. The case made by the bill was this : it alleged title under several instruments to certain real estates settled thereby, one of such deeds creating a term to raise a sum of money not yet raised. It alleged pos- session or receipt of the rents in some of the defen- dants, and that they had possession of some of the deeds, and that they had given notice to tenants not to pay rent to the plaintiff, and threatened to distrain^ it alleged that the trustee of the term refused to assign it to the plaintiff. It prayed, among other things, a declaration that, under certain of the instru- ments, the plaintiff was entitled to the estates, and that on payment of the money to be raised by the term by him he was entitled to a surrender or assign- ment of the term : — Held, that there was an equity for that relief, if for no more, and the hill was not, therefore, demurrable. Saunders v. Richardson, 2 Drew. 128. A filed a bill against B and the public officer of a banking company, seeking to make certain shares which B held in the bank available to the payment of a debt due to him from B. The bill alleged that, though the company had a prior charge on the shares for a debt due to them from B, yet that debt was amply secured by the shares of other persons in the bank, and by other securities held by the com- pany; and it prayed that an account might betaken of what was due to the company in respect of their charge, and that directions might be given for the satisfaction thereof out of the last-mentioned shares, and out of or by means of the other securities held by the company, or for enabling A to pay to them the amount of their charge, and therejipon to have such other securities assigned to him, and that the securi- ties might be marshalled so as to give the plaintiff the benefit of his charge. A demurrer because the persons who had pledged their shares, and given securities to the company for B's debt, were not made parties to the bill was allowed. Madntyre v. CanmeU, 1 Sim. N.S. 262. A bill contained a charge with a view to discover- ing who certain persons who were interested in the relief were, but it did not allege that the plaintiffs did not know who they were, and therefore a demurrer because they were not made parties was allowed. Ibid. PLEADING, IN EQUITY. S37 A bill to set aside on the ground of fraudulent representations an order in an action at law made by consent staying the action, and directing the payment of a certain sum of money by the defendant to the plaintiff, and which sum the plaintiff afterwards ac- cepted : — Held, to be demurrable, as it did not state that the plaintiff was ignorant of the alleged repre- sentation being fraudulent, not only at the time of the order, but at the time he received the money. Dwnm T. Cox, 11 Hare, 61. It appearing that a second action had been brought by the plaintiff, and had been stayed by the court of law in consequence of the consent order made in the first action, and that the plaintiff had taken regular proceedings at law to set aside the order staying the second action, but that order had been sustained, this Court refused to aid a suit in equity brought by the plaintiff by giving him leave to amend, upon allowing a demurrer to his bill to set aside the consent order on the ground of such alleged fraud. Ibid. (C) Aksweb. A, B & C carried on business in partnership as bankers. A died, having made B and D his executors, and S a residuary legatee. D was, after the death of A, admitted a partner in the business. A bill was filed by S against B and D for the administration of the estate of A. It stated that the executors had rendered imperfect accounts, particularly with refer- ence to A's capital in the business at his death; that the business had, since A's death, been carried on with his capital, and that the residuary legatees were entitled to one-third of the profits. It contained interrogatories, whether the business had not been carried on with A's capital — what were the profits since the death of A — what was the present capital — and what capital had been drawn out since A's death. C, the other partner, was not a party to the bill : Held, that in a suit so constituted, B and D were not bound to answer the above-mentioned interrogato- ries. Svnvpaait v. Ohapnum, 20 Law J. Eep. (n.s.) Chanc. 88. Bill filed by the cestui que trust under a marriage settlement against the trustee to compel him to pay a sum of money,, which the husband had covenanted to settle, but which covenant the trustee had neg- lected to enforce previously to the bankruptcy of the husband, which took place some years after his mar- riage. The bill alleged that for many years the hus- band was in prosperous circumstances, and the cove- nant ought then to have been enforced. The trustee, by his answer, stated as a reason for his not having been able to enforce the covenant, that the husband, at the time of his marriage, was in very needy and embarrassed circumstances, and continued so until his bankruptcy. The answer then set forth several transactions, alleged to have been fraudulently con- trived by the husband, and that hehad in various other matters, both previously and subsequently to his marriage, resorted to fraudulent means to supply his wants and avert discovery of his true position. The Master had allowed exceptions to such passages of this answer as contained allegations of fraud against the husband on the ground that they were scanda- lous and impertinent : — Held, upon exceptions to the Master's report, that where the bill alleged solvency it was not irrelevant for the defendant to introduce a statement of fraudulent practices committed from Digest, 1850—1855. time to time to conceal the fact of insolvency. £al- gwjf v. Broadhurst, 20 Law J. Rep. (n.s.) Chanc. 55. The answer of a defendant contained these pas- sages : — " The plaintiff is desirous of annoying and harassing the defendant to extort money from him." " The plaintiff is acting under the advice of ignorant but cunning persons, who are in expectation of ex- torting money from the defendant, in order to be relieved from being harassed by the vexatious and illegal couduct of the plaintiff." The plaintiff took exceptions to these passages for scandal. The ex- ceptions were overruled. Stanton v. Holmes, 20 Law J. Eep. (k.s.) Chanc. 203. A bill was filed by A against B & Co. stock- brokers, alleging that dealings and transactions were, in March 1848, contemplated between the parties, in respect of which money might become due from A to B & Co., and that A transferred to B & Co. rail- way shares as security for the balance, if any ; and that various dealings and transactions had taken place between the parties; and praying for a re- transfer of the shares and an account. The bill con- tained numerous searching interrogatories as to the stock transactions and the ownership and transfer of the railway shares. B & Co., by their answer, set out the 7 Geo. 2. c. 8. s. 8, and averred that A, be- fore the suit, had alleged that the transactions in question were illegal, and they declined to answer on the ground that such answer might tend to subject them to the penalties of the act: — Held, that the defendants were protected fi:om discovery. iShort v. Mercier, 20 Law J. Rep. (n.s.) Chanc. 289; 3 Mac. & G. 205: affirming 18 Law J. Rep. (n.8.) Chanc. 4flO; Semite — if a defendant states circumstances which on the face of them are not only consistent with the peril he alleges, but which also render it extremely probable, he entitles himself to protection from dis- covery. Ibid. Upon a bill charging the defendant with infringing the plaintiff's patent and asking for an account of his dealings and transactions, and seeking to make him answerable for the profits received by him in consequence of the infringement, — Held, that the defendant must answer the interrogatories, though he disputes the title of the plaintiff, and insists that the discovery will be an act of oppression upon him, and that there was little probability that the Court, at the hearing, would direct an account upon the facts if disclosed. Swmborne v. Nelson, 22 Law J. Eep. (H.s.) Chanc. aSlj 16 Beav. 416. Where there is no replication to the answer to a bill of revivor, is a plaintiff bound, if he relies on the original answer, to take it as absolutely true in all particulars." . Stcmtonv. Percival, 5 H.L. Cas.,267. Is an answer by committees binding upon the estate of the lunatic ? It is binding on them in any other character, Ih^d. Is a replication necessary to an answer to a mere bill of revivor ? Ibid. A defendant who had not by his answer claimed the benefit,of the Statute of Frauds, was not allowed to have it at the hearing. Bashett v. Cafe, 4 De Gex & Sm. 388. Where discovery is sought in relation to matters in which the plaintiff has no interest, but as conse- quential or resulting from a character or title denied by the answer, and not otherwise appearing on the 3Z 538 PLEADING, IN EQUITY. record, the plaintiff hna no equity entitling him to discovery. If, however, the plaintiff's interest in the discovery sought results from a character and title alleged in the bill, and if the bill properly avers that the discovery will establish that character and title, and also establish a case of fraud by the defendant affecting or destroying the plaintiff's renbedies, the defendant cannot withhold the discovery by generally denying the character and title claimed by the plaintiff.. Stainton v. Chadwick, 3 Mac. & G. S75 : affirming 13 Beav. 320. Although a litigant party has no right to a disco- very of the evidence of his opponent's title, yet he has a right to a discovery of the evidence in support of his own title, and in proof of any fraud which heis been committed to his injury; and the plaintiff's right to a discovery of material evidence in support of hia own case and title is not repelled, because by exer- cising that equitable right the defendant may be compelled to disclose the evidence in support of his (the defendant's) case and title. Ibid. The plaintiff and defendant respectively deduced their title from the heir-at-law of A, who died intes- tate in 1768, equitably entitled to certain premises, the legal estate of which was outstanding. In 1842 the defendant obtained exparte a conveyance of the outstanding legal estate under Sir E. Sugden's acts. The plaintiff then filed his bill, alleging that the defendant had obtained the conveyance of the legal estate to himself, as the heir-at-law of A, by false and fraudulent evidence. The bill contained interro- gatories addressed to the discovery of the alleged false and fraudulent evidence. The defendant having by his answer asserted his own title as heir-at-law of A, and having denied that of the plaintiff, refused to answer any of the interrogatories relating to the evi- dence on which he had obtained the conveyance, asserting that the discovery would disclose the evi- dence of his own title, and denying that the evidence was false or fraudulent, or that it would establish any of the allegations of the bill : — Held, that he was bound to make the discovery. Ibid. Matter ought not at the commencement of a suit to he treated as impertinent, which may at the hearing be found relevant. Reeves y. Baker, 13 Beav. 436. A trustee called on the defendant to set forth whether for the reasons in the bill stated, or some other and what reasons, he was not able to execute the trusts, " or how otherwise." The defendant in his answer imputed to the plaintiff's solicitor need- less delay in effecting a proposed compromise, his inducement being to favour another solicitor, his personal friend : — Held, that the statement was not scandalous. Ibid. (D) Plea. [Oust V. Southee, 6 Law J. Dig. 564; 13 Beav. 435.] At the hearing of a claim a defendant is at liberty to avail himself of the benefit of the Statute of Limit- ations without pleading it. Sneed v. Sneed, 20 Law J. Eep. (h.s.) Chanc. 630. Upon a plea of outlawry, it was held, that an order of the Court of Bankruptcy directing the plaintiff to prepare and file his accounts by a certain day, and the certificate and proclamation of the Court, that he had failed to surrender himself on that day, did not amount to a formal judgment of outlawry such as would support the plea Plea overruled. Win- throp V. ElderUm, 21 Law J. Rep. (if.s.) Chanc. 145. Bill by A against B. The bill stated that A and B carried on business in partnership at Calcutta and in England, and that A had commenced a suit against B in Calcutta, but that, from B having left the East Indies and come to reside in England, the suit could not properly be prosecuted. The biU prayed the usual partnership accounts. To this bill B put in a plea that a decree had been made by the Supreme Court at Calcutta, in the suit mentioned in the bill, wherehy it was referred to the Master to take an account of the partnership transactions be- tween A and B, and that the inquiries were still pending. The plea was overruled . Ostell v. Lepage, 21 Law J. Rep. (n.s.) Chanc. 501; 5 De Gex & Sm. 9h. A pending suit in a foreign or colonial court be- tween A and B cannot be pleaded in bar to relief sought in a suit in Chancery in England between the same parties relative to the same matters. Ibid. A bill was filed to administer a testator's estate by his six infant children. The executor of the testator, who was the defendant, died. A supplemental bill was filed by two of the plaintiffs who had come of age, alleging that they had taken out administration to the executor. The other plaintiffs also filed a supplemental bill alleging that administration had been granted to the two adult plaintiffs. The de- fendants to the latter bill put in a plea averring that letters of administration had not been granted at the time the hill was filed, though it was admitted they had since been obtained : — Held, that it was suffi- cient if administration was gi'anted before the hearing of the cause, and that the plea was untenable. Hor- ner v. Homer, 23 Law J. Rep. (n.s.) Chanc. 10. A plea that the description given of the plaintiff in his bill is false will lie, but the plea must suffi- ciently aver that the description was false at the time of filing the bill. Smith v. Smith, 23 Law J. Rep. (n.s.) Chanc. 231 ; Kay, App. xxii. A plaintiff, being entitled to several large sums of stock on the death of C C without issue, filed a bill, stating that C C had died without issue, but that the defendant insisted he was the son and only child of C C. The bill then stated facts from which it might be inferred that C C had never had a child, and that the defendant was not her son. By a plea the defendant averred he was the son of C C, but he omitted to answer the allegations which might have contradicted it : — Held, that the plea was bad ; and that the defendant must answer facts which, if in evidence, might dispfove the plea. It was therefore directed to stand for an answer, with liberty for the plaintiff to except. Hunt v. Penrice, 23 Law J. Rep. (n.s.) Chanc. 339; 17 Beav. 525. A residuary legatee filed a bill against an alleged debtor to the estate of the testator seeking to make him account, and stating that the executors had re- fused to call upon him to account. A plea was put in, which denied any refusal on the part of the exe- cutors to call the alleged debtor to account, and it was supported by averments of no collusion and of facte to shew there could have been no refusal by the executors. It was held, that the plea satisfied the requisition to reduce the matter to a single issue; that there might be many facts to raise a single issue, but that no distinct issues were raised by these aver- PLEADING, IN EQUITY— POLICE OFFICER, 539 menis ; that there was no case of delay or collusion against the executors, and that therewere no circum- stances to take this case out of the rule that the proper person to sue a debtor to a testator's estate is the executor. Plea allowed. Saimders v. Bruce, 24 Law J. Rep. (s.s.) Chanc. S93; 3 Drew. 140. To a bill for specific performance, a plea by a sole defendant of his bankruptcy subsequent to the bill filed was allowed. Lane v. Smith, 14 Beav. 49. The plaintiff described himself as of "Gray's Inn, barrister-at-law, and of No. 2, Cloisters, Middle Temple." The defendant pleaded that the descrip- tion was false, and that the plaintiff was not resident at No. 2, Cloisters, Middle Temple :— Held, that the plea was bad in form, not negativing a residence at Gray's Inn; but qiuare, whether, even if correct in form, such a plea could be supported. Bamtyrigge V. OHon, 20 Beav. 28. Bill for redemption by mortgagee of shares in a company transferred into the name of the mortgagor. Plea, that at the time of the bill filed, all the shares were by assignment vested in another person: — Held, the plaintiff had a title to sue, and the plea overruled. Wvnterbottom, v. Tayloe, 2 Drew. 279. assaults. The Commissioner, before whom the second trial took place, told the jury that if they were satisfied that there were several distinct and inde- pendent assaults, some or any of which did not in any way conduce to the death of the deceased, it would be their duty to find for the Crown. The jury, thereupon, returned a verdict of guilty. On a case reserved, stating the above facts, it was held, by a majority of the Judges (eight to six) that the prisoners could not, on the trial for murder, have been convicted of assault under the statute 7 Will. 4. & 1 Vict. c. 85. a. 11, as the assaults committed by them, although relied on by the Crown as con- ducing to the death, were proved by the evidence to have been unconnected with the homicide of the deceased; that, therefore, the general acquittal on the indictment for murder was no bar to a subsequent indictment for assault in respect of those very assaults. Eegina v. Bird, 20 Law J. Eep. (n.s.) M.O. 70. PLEADING, IN CRIMINAL CASES. The two prisoners were indicted for the murder of M P by violence. The third and most material count charged the murder to. have been effected by blows inflicted by the prisoners on the Sth of No- vember, the Ist of December, and the Ist of January, and on divers other days between the 5th of Novem- ber and the Ist of January. On the trial evidence was given of assaults committed by the prisoners on the deceased, one on the Sth of November 1849, one about the end of November, and one about the 11th of December. The counsel for the prosecution, in his address to the jury, had opened these assaults as conducing to the death ; but he added, that if he failed in proving that they had conduced, to the death, they would furnish evidence of the cmimus of the prisoners. It was proved, by further evidence, that the death, which took place on the 4th of January, was caused exclusively by one particular blow inflicted shortly before the death; and as there was no evidence to shew that either of the prisoners had struck that blow, they were acquitted. Being subsequently indicted for having, on the 10th of November 1849, assaulted M P, the prisoners pleaded a plea which, setting forth the indictment for murder, averred that the indictment included divers assaults against M P, and that the prisoners were acquitted upon the said indictment, and that the assaults included in the felony and murder charged upon them in the said indictment, were the same as those charged in the present indictment. The Crown replied, " that the prisoners were not acquitted of the felony and murder, including the same identical assaults charged in the present indict- ment." On the second trial, it was proved that evidence had been given on the former trial of the above-mentioned assaults, and no evidence was given on the second trial of any other assaults than of those proved on the first trial. On the second trial, as on the first, it was proved that the death was caused by the particular blow, distinct from these POISON. [Administering drugs, see Stat. 14 & 15 Vict. c. 19.6. 3.] POLICE OFFICER. (A) Appointment. (B) Power and Duty. (C) SUPEEAKNUATIOK. (A) Appointment. Where a party was appointed by the Police Com- missioners, under the 2 & 3 Vict. o. 47, a constable to keep the peace, on the written requisition of cer- tain churchwardens, stating that additional persona were required for the purpose of executing distress warrants to recover rates, — Held, that the appoint- ment of the party as constable for all purposes was good, and that the requisition of the churchwardens need not shew on the face of it the necessity for his appointment. A lien v. Preece, 24 Law J. Eep. (n.S.) Exch. 9; 10 Exch. Rep. 443. (B) Power and Duty. The plaintiff sued the defendants, who were police constables, in a county court, for a tort, charging them with having arrested and imprisoned him on a false and unfounded charge of furious driving. On the trial, the plaintiff stated that the defendants had taken him into custody and detained him in a police- station on the charge of furious driving; that the charge was false and unfounded, but that he had been convicted of it by two Justices and paid the penalty. The defendants thereupon objected that the plaintiff was put out of court by his own state- ment, and then proved the conviction. The statute 2 & 3 Vict. c. 47. B. 54. authorizes police constables to take into custody persons committing the offence of furiously driving in a public highway in their view. The case did not shew that the plaintiff com- mitted the offence of furious driving in the view of the defendants. The county court Judge directed the jury that the conviction was a conclusive answer to the plaintiff's claim. The Court of appeal held. 540 POLICE OFFICER— POOR. that the direction of the Judge below was wrong, and reversed the judgment. Justice v. Oosling, 21 Law J. Rep. (H.8.) C.P. 94; 12 Com. B.Rep. 39. Trespass for false imprisonment. The defendant Barnes having obtained a warrant to search the plaintiff's house, and to apprehend him on a charge of felony, the warrant being headed " To the con- stable of D, in the county of W," delivered it to the defendant Barton, a county constable, appointed under the 2 & 3 Vict. c. 93, who executed it within the parish of D by apprehending the plaintiif. The action was not brought until the expiration of six months from the time of the act committed : — Held, first, that trespass was the proper form of action; secondly, that the parish constable of D, and not the defendant Barton, was the proper party to execute the warrant, but that Barton was protected, the action not having been brought against him within six months, pursuant to the 24 Geo. 2. c. 44. s. 8, and that the other defendant was liable. Freegard, or Treegwrd,v. Barnes, 21 Law J. Eep. (n.s.) Exch. 320; 7 Exch. Rep. 827. The Municipal Corporations Act, 5 & 6 Will. 4. c. 76, by section 76, provides that constables ap- pointed for a borough shall, not only within the borough, but also within the county in which such borough is situate, have all such powers and privi- leges and be liable to all such duties as any constable duly appointed now has, or hereafter may have, within his constablewick by virtue of the common law or of any statute made or to be made; and by section 133. in all actions against any person for anything done in pursuance of that act, the defen- dant may plead the general issue, and give the special matter in evidence thereunder. The defen- dant, who was a borough constable appointed under the 5 & 6 "Will. 4. c. 76, was sued in replevin for an act done in discharge of his duty as a constable imder that act, beyond the limits of the borough, but within the county in which the borough was situate: — Held, that he was entitled, under the general issue of non cepit, to give the special matter of defence in evidence. Mellor v. Leather, 22 Law J. Rep. (n.s.) M.C. 76; 1 E. & B. 619. Replevin will lie where goods have been unlaw- fully taken, though not as a distress; and, therefore, where H and B were sued in replevin for taking a horse under a claim of property by A, who alleged that the horse had been stolen from him, and B had acted in the transaction only as a constable, — Held, that the action was maintainable. Ibid. The prisoner assaulted a police constable, who went away, and after two hours' time returned with assistance ; — Held, that the constable was not justi- fied in apprehending the prisoner for the assault after that interval. Regiim v. Walker, 23 Law J. Rep. (N.s.) M.C. 123. (C) Superannuation. The 11 & 12 Vict. c. 14. o. 2. authorizes the establishment of a " police superannuation fund " in boroughs, which is to be applied in paying super- annuation or retiring allowances " to police con- stables, as follows : if a constable has served fifteen years he is entitled " to retire on a superannuation allowance " equal to half his pay; but if he is then able and willing to continue to serve "he shall then receive *' his ftiU pay " and one-third also and no more of the above-named allowance from the super- annuation fund." By section 3. "no police con- stable shall be entitled to superannuation who is under fifty years of age," unless reported unfit for service: — Held, that a police constable who had served fifteen years and continued in the force, but who was under fifty years of age, was not entitled to receive the reduced allowance under section 2. Hohson V. the Mayor, &e. of Kimgaton-wpaa-HvU, 24 Law J. Rep. (n.s.) Q.B. 251. POOR. [For Pauper Lunatic, see title Lunatic] (A) Poor Law Commissionebs — Powers and Orders of. (B) Guardians. (a) Contracts hy. (b) Authority to Solicitor to me. (c) Cleric to. (d) Expenses of Be-investmeni, under 5 S; Q Will. i. c. 69. (C) Auditors. (D) Overseers AND CoLLEOTOBS. (E) Relief. (F) Settlement. (a) By Birth and Pajreniage. (1) Bastards. (2) Child/ren, under Sixteen. (3) Irish amd Scotch Children. (6) By renting a Tenement or paying Rates and Taxes. (c) By Estate. (d) By serving an Office. (e) By Apprenticeship. (/) Five Years' Residence, (g) Relief. (h) Effect of prior Order of Removal. (G) Order of Removal. (o) Illegal Removal T>y Pairish Officers, (p) Appeal against the Order. (1 ) When it lies. (2) j4< what Sessions. (3) Notice of Appeal. (4) Oroundt of Appeal. (5) Notice of Abamdonment. (c) Evidence. (d) Costs. (A) Poor Law Commissioners—Powers and Orders of. [See 14 & 15 Vict. c. 106 (continued by 15 & 16 Vict. c. 14. and 16 & 17 Vict. c. 77), and 18 & 19 Vict. c. 47, as to charging the maintenance of the poor in unions upon the common fund.] The 4 & 5 Will. 4. .;. 76. s. 46, which allows the Poor Law Commissioners to direct the guardians of a parish to appoint such officers as they shall think necessary, and also to direct the mode of appoint- ment and " determine the continuance in office and dismissal of such officers," applies as well to those parishes which are as to those which are not regu- lated by local acts. Regnia v. the Poor Law Com- missioners, in re the Vestrymen and Governors of POOR; (A) PooB Law Commissioners. 541 ihe Pom of St. Ja/mes'a, Wegtmmstei; 20 Law J. Kep. (n.s.) M.C. 236; 17 Q.B. Rep. 445. ' By the 2 & 3 Geo. 3. c. Iviii. s. 21. (local) the vestrymen of the parish of St. J W were required to nominate tnrenty-one persons who should become the directors of the poor, and who were to make rules and regulations for the maintaining of the poor, and which were to be subsequently confirmed by the vestry. In pursuance of this section, in 1 763, the vestry nominated twenty-one persons directors, by whom certain rules were made, which, among other things, appointed that the officers should be elected annually at Easter. These rules were duly con- firmed, and have never since been repealed. By an order, bearing date the 17th of July 18S0, and ad- dressed to the vestrymen of the said parish, the Poor Law Board directed, among other things, by the 67th article, that tJie directors, whenever a vacancy oc- curred, should appoint fit persons to fill certain offices, and the 83rd article that every officer appointed to or holding any office under the order should continue to hold the same vmMl he die, resign, or ie removed hy the Poor Law Board, or be proved to be insane to the satisfaction of the Board : — Held, that these articles did not exceed the powers conferred by the 4 & S Will. 4. c. 76. s. 46. on the Poor Law Board, and that the order was, therefore, valid. Ibid. The Poor Law Board duly madeand served certain rules and regulations for the government of the work- house of a parish. Before the making of such rules and regulations, the directors of the poor of the parish, under a local act, had appointed a chaplain to the workhouse for the term of one year, which had not expired when such rules were made, who had entered upon the discharge of his duties. The 67th article of the rules and regulations gave the directors power, when necessary, or a vacancy should occur, to appoint certain officets, the chaplain being one. The 68th article ordered that the officers so appointed to or holding any of the said offices, as well as all persons temporarily discharging the duties of such offices, shall respectively perform such duties as may be required of them by the rules and regulations of the Poor Law Board in force at the time, together with all such other duties, &c. as the directors may law- fully require them to perform : provided always, that every regulation applying to any officer holding his office under this order shall apply to any officer of the like denomination appointed by the directors, although such officer may have been appointed be- fore this order shall have come into force." The 83rd article provided that " every officer appointed to or holding any office under this order" other than the medical officer, should continue to hold the same until his death or resignation, or removal by the Poor Law Board, or he were proved to be insane. After the expiration of the year for which the chaplain had been appointed, the guardians refused to allow him iiirther to discharge his duties: — Held, upon demurrer to the return to a mandamus to admit the chaplain to perform his duties, that the proviso to the 68th article did not apply to the tenure of office of the officers mentioned in the previous part of the article, and tfierefore that the 83rd article was not a regulation within the meaning of that proviso, and consequently that the admission of the chaplain could not be enforced. Megina v. tke Governors, t&c. of the Poor of St. James's, Wesiminstei; 21 Law J. Rep. (N.S.) M.C. 97; 17 Q.B. Rep. 474. Guardians of a poor-law district, acting under a local statute which empowered them, or any five or more of them, to appoint officers, appointed a master pf the workhouse for a year, and, on its expiration, re-appointed him for another year. During that year the Poor Law Commissioners made an order, under Stat. 4 & 5 Will. 4. c. 76, requiring the guardians from time to time, on the occurrence of any vacancy, to appoint certain officers (among whom was a master of the workhouse) by a majority of the guardians present. Afterwards, and before the master's last- mentioned year of office had expired, the guardians passed a resolution that their officers were officers during pleasure, and that no annual election should take place. This resolution was not sanctioned by the Commissioners under stat. 4 & 5 Vict. c. 76. s. 22; and after the expiration of the year of office they ordered the guardians to appoint a master of the workhouse, which was not done : Held, on motion for a mandamus, that the first-mentioned order of the Commissioners was within their general jurisdiction under stat. 4 & 5 Will. 4. c. 76 ; that the resolution of the guardians, unsanctioned by the Commissioners, could not be alleged in answer; and that there was, at the end of the second year of office, a vacancy which ought to have been filled up as the Commis- sioners had directed. Segina v. Oaford (OuardiamsJ, 17 Q.B. Rep. 467, note. An order of the Poor Law Commissioners may (like an order of Justices) be quashed in part on cer- tiorari, if the parts be sufficiently divisible. Eegvaa v. BoUmon, 17 CI.B. Rep. 466. On motion for a certiorari to remove an order of the Commissioners containing several distinct articles, the Court granted the writ, pronouncing an opinion that two of the articles were illegal. The Commis« sioners made an order rescinding these, and gave notice of it to the.parochial body which had obtained the certiorari. The order was then brought up under the writ: — Held, that, in this state of the proceedings, it was not necessary to quash the rescinded parts of the order, but that the Court might quash, or refuse to quash, the whole residue or any part of it : — Held, also, that an article of the above order, directing that every officer appointed to or holding any office under the said order (which related to the government and care of the poor in a poor-law district) should continue to hold office till death, resignation, or removal by the Poor Law Board, was not beyond the authority conferred by stat. 5 & 6 Will. 4. c. 76. s. 46, although applied to a parish in which, by a prior local act, the governors of the poor had the power of dismissing the officers. But, held, that the above clause did not operate to keep a party in office without re-election, who had been appointed by the directors of the poor (authorized by their local act) and not under the order. Although by an earlier article it was provided that "every regulation'" applying to any officer hold, ing office under this order, should apply to any officer of the like denomination appointed by the directors, though appointed before the order should have come into force: the term "regulation" being construed as referring to a clause immediately preceding, which required that the officers appointed by the directors should respectively perform such duties (described in other parts of the order) as might be required of them 542 POOR; (B) GlTAKBIANS. by the rules and regulations of the Poor Law Board in force at the time. Ibid. Qi«Erc— whether, in such an order, the Commis- sioners could, under stat. 5 & 6 Will. 4. c. 76, change the term of an officer appointed before the makmg of the order from an annual holding to a holding for life. Ibid. , ^ The Poor Law Commissioners, by a general order directed to unions, amongst which was the union in- cluding the parish of W, directed "that whenever the day appointed in this order, for the performance of any act relating to or connected with the election of guardians shall be a Sunday or Good Friday, such act shall be performed on the day next following, and each subsequent proceeding shall be postponed one day:" and that every nomination for the office of guardian should be in writing, and should be sent, after the 14th of March and before the 26th of March, to the clerk or person appointed to receive nomi- nations; and such clerk or person "shall, on the re- ceipt thereof, mark thereon the date of its receipt, and also a number according to the order of its receipt; provided that no nomination sent before the 15th or after the said 26th day of March shall be valid:" and that, if the number of persons nominated should not exceed the number to be elected, the clerk should certify such persons as elected; other- wise the election to take place from those nominated. The parish W was to elect three guardians. Three persons were duly nominated. The 26th of March fell on a Sunday; and, on that day, a paper nomi- nating a fourth person, M, was delivered to the clerk of the union. The clerk, considering this last nomi- nation a nullity, certified the other three as elected guardians. Complaint being made to the Poor Law Board, they, under stat. S & 6 Vict. c. 57. s. 8, inquired into the case, and by an order declared the election of the three void. Motion being (within the time limited in that section) made for a certiorari to remove the last^mentioned order: — Held, first, that the legality of the order might, on such motion, be inquired into as to matters shewn by affidavit, though not apparent on the face of the order ; but, secondly, that the order was right, the nomination of M being valid. Westiury^jpon-Sevem Union Case, 4 E. & B. 314. (B) GOARDIANS. (a) OorUracts by. [See Armstrong v. JBowdidge, title Contract, (A).] If the guardians of a poor law union, at a board properly constituted and authorized to enter into contracts, give orders to a tradesman to supply and put up water-closets in the union workhouse, and he puts them up, and the guardians approve and accept them, they cannot afterwards defend themselves, in an action against them for the price, by shewing that there was no contract under seal, as the purposes for which the guardians were made a corporation require that they should provide such articles. Clarjee v. the Guardiwns of the Cuckjield Union, 21 Law J. Rep. (n.b.) Q.B. 249; 1 Bail C.C. 81. The guardians of a union, in pursuance of an order of the Poor Law Commissioners (under the 4 & S Will. 4. c. 76. s. 46. and the 7 & 8 Vict. c. 101. 0. 62) directing them to appoint collectors of the poor-rates, and also directing that such collectors should be paid by a certain poundage, appointed the plaintiff collector of the rates of several parishes at a poundage, in conformity with the terms of the order. The appointment was recorded in the minute- book of the meeting, and the entry read to the plaintiff, who performed the duties of collector, paying to the treasurer the money received on ac- count of each parish, and receiving his poundage from the respective overseers, with the exception of the parish of W : — Held, that an action was not maintainable by the plaintiff against the board of guardians for the unpaid poundage. Smart v. the Guardians of the West Ham Union, 24 Law J. Rep. (n.s.) Exch. 201 ; 10 Exch. Rep. 867. (6) Avthmity to Solicitor to sue. The guardians of a poor law union issued a sum- mons against the defendant as administrator of John I S, and also as executor of Jane S, widow of John, to recover 171,, expended by the parish for the sup- port of John I S and Jane, and their children. The defendant was the administrator of John I S, but was not nor had he acted as executor of the widow. No minute was produced by the attorney of the plaintiffs (a corporation), authorizing him to act on their behalf, pursuant to 5 & 6 Vict. c. 67. s. 17. Judgment was given for the plaintiflFs : — Semhle, that the decision was erroneous : but held no ground for a prohibition. The Guardiams of the Lexdem Union v. Southgate, 23 Law J. Rep. (n.s.) Exch. 316; 10 Exch. Rep. 201. (c) Clerhto. The office of clerk to the board of guardians of an union appointed under the provisions of 4 & 5 Will. 4. c. 76. s. 46. is an office created by statute and of a public nature, in respect of which a quo warramto will lie. Begima v. the Gua/edAams of St. Martin-in- the Fields, 20 Law J. Rep. (k.s.) Q.B. 423; 17 a.B. Rep. 149. Where, therefore, such an office is full, a manda- mus is not 1 proper mode of trying the validity of the election. Ibid. By an order of the Poor Law Commissioners regulating the proceedings of guardians of the poor in the parish of M, the election of officers was to be by a majority of the guardians present at a meeting of the board. By stat. 12 & 13 Vict. c. 103. s. 19, in case of an equality of votes upon any question at a meeting of guardians of any union or parish, the chairman has a " second or casting vote." At an election of clerk to the guardians of M twenty-two guardians attended. On their assembling, the chair- man said he should not vote for any candidate, but merely preside at the meeting as chairman. He did so, and took the votes, of which there were eleven for one candidate and ten for another. The former was declared elected, and entered upon the office. On motion for a guo warranto, — Held, that the chairman could not be considered as having, for the purpose of the election, withdrawn ; and that such election was void, as not having been determined by a majority of the guardians present. Itegina v. ~ ""i, 17Q.B. Rep. 164. (d) Expenses of He-investment wnder 5 ;. 76. ». 11.] A writ of summons was issued, date4 the 7th of November 1853, with a view to save the Statnite of Limitations. It was renewed on the 6th of May 1864. On the 6th of November following, the plain- tiff applied to the officer of the court to renew the writ again; but the latter refused, considering it too late, and that the six months had expired. The Court, without deciding that the renewal would be valid, directed that the writ should be renewed as of the 6th of November, nunc pro tunc, as the dates would appear on the record. Anonymovs, 24 Law J. Rep. (n.s.) Q-B. 23. Qiicere — whether the six months for which a writ of summons renewed under section 11. of the Com- mon Law Procedure Act, 1852, is to be available, are to be calculated exclusive or inclusive of the day of renewal. Anonymous, 24 Law J. Rep. (n s.) C.P. 1; o. c. nom. Blach v. Green, 15 Com. B. Rep. 262. Where a writ had been renewed on the 1st of May, and on the 1st of November an application to renew it again was made to the officer, and he had refused, the Court, on the 2nd of November, ordered the renewal seal to be affixed nuncpro tune, without expressing any opinion whether the renewal was in time or not. Ibid. (2) Special Indorsement of Particulars of Claim. [See 15 & 16 Vict. c. 76. s. 25.] Whrae a writ is specially indorsed under the Com- mon Law Procedure Act, — semile, that it is irregular for the plaintiff to deliver any other particulars of demand, besides those indorsed on the writ, without leave of the Court or a Judge. Fromant v. AsMey, 22 Law J. Rep. (n.s.) Q.B. 237; 1 E. & B. 723. But where the plaintiff delivered with his declara- tion other particulars, without leave, and the defen- dant, instead of objecting, pleaded and went to trial, he was held to have waived the irregularity, and the plaintiff was allowed to avail himself of the second particulars. Ibid. A plaintiff cannot sign final judgment under the 25th section of the Common Law Procedure Act, 1852, for want of appearance to a writ, specially indorsed, claiming (inter alia) the expense of noting and commission on a bill of exchange; the same DiflBST, 1850—1855. being unliquidated damages. Rogers v. Sunt, 24 Law J. Rep. (n.s.) Exch. 23; 10 Exch. Rep. 474. Where judgment was signed under the Common Law Procedure Act, 1862,15 & 16 Vict. c. 76. s.26, on a writ specially indorsed, claiming, inter alia, interest on an I O U, the Court refused to set aside the judgment on the ground that the defendant, by not appearing to the writ, had admitted a contract, express or implied, to pay interest. Bodway v. Lucas, 24 Law J. Rep, (n.s.) Exch. 155; 10 Exch. Rep. 667. Although the Common Law Procedure Act, 1852, b. 25, does not limit the right orspecially indorsing a writ with interest to cases where there has been either an express or implied contract to pay inter- est, yet in all cases, except bills of exchange and promissory notes, if any party not entitled to interest makes a claim for it by special indorsement to gain an improper advantage, the Court will set aside the judgment and compel the attorney making such in- dorsement to pay the costs. Ibid. (5) Service of. (1) On Public Bodies. [See 15 & 16 Vict. c. 76. s. 16.] By 1 & 2 Geo. 4. u. 93. s. 9. " the principal officers and Commissioners of the Navy" for the time being were empowered to bring and maintain any action of ejectment or other proceeding for recovering posses- sion of lands, &c. vested in them, and to bring, main- tain, or defend any other action in respect of the said lands, &c., and it was enacted that in every such action they should be called by the above name, without naming any of them. By subsequent acts, the powers, &c. of the above body were vested in the defendants. A writ in an action of debt against the defendants by their collective name was served upon A M, one of their number. It required the defendants to enter an appearance in an action of debt, and stated that, in default, an appearance would be entered for them. Upon a motion to set aside this writ and the service thereof for irregularity, the affidavits stated that the action was brought for half- pay, which was not a cause of action for which an action for debt could be maintained against the de- fendants by their collective name: — Held, first, that the Court could not upon this motion look at the affidavits as to the cause of action, and that inasmuch as the 1 & 2 Geo. 4. c. 93. s. 9. authorized some actions of debt to be maintained against the defen- dants by their collective name, there was no ground for setting aside the process as irregular; secondly, (per Maule, J.) that the proper method of effecting complete service upon the Commissioners is by serving each of them. Williams v. the Commis- sioners for executing the Office of Lord High A dmiral, 20 Law J. Rep. (n.s.) C.P. 245; 11 Com. B. Rep. 420; 2 L. M. & P. P.C. 456. Semble — that the Court will never, upon motion to set aside process for irregularity, decide that the plaintiff has no cause of action, and thereby deprive him of his appeal, however clear the matter may appear on the affidavits. Ibid. The Caledonian Railway is situated in Scotland, with the exception of six miles, which lie in Cumber- land. The railway company's act incorporates so much of the 8 Vict. cc. 16. and 17, (the English and Scotch Companies Clauses Acts), as m^y be necessary 4C 5G2 PRACTICE, AT LAW. for carrying into effect the object and purposes of the act in relation to the English portion of the railway. The plaintiff having a claim against the company in respect of the amalgamation of a Scotch company with the Caledonian Railway, served a writ of summons upon the secretary of the company in London:^ Held, that the company filled the double character of a Scotch and English railway company, and that the service was regular. Wilson v. the Caledonian Mil. Co., 20 Law J. Rep. (n.s.) Exch. 6; 5 Exch. Rep. 822. To an action on a judgment of the Court of Queen's Bench in Ireland, the defendants (a cor- poration) pleaded that they were not served with any process, and that the plaintiff, irregularly and behind the backs of the defendants, caused an appearance to be entered for the defendants, and obtained judgment when the defendants were not within the jurisdiction, and had not been served with process: — Held, that the plea was bad, for not shewing that the defendants did not know of the summons, or that they did not appear in the action. Sheehy v. the ProfesdonaZ Life Assv/rance Co., 22 Law J. Rep. (n.s.) C.P. 244; 13 Com. B. Rep. 787. Qucere — whether the 9th section of the 13 & 14 Vict. c. 18, which provides for substitution of service by the Irish Courts, applies to corporations. Semhle, per Maule,J.,ihat it does apply to service upon the agent of a corporation. Ibid. (2) On Lunatics, A Judge at chambers having made an order direct- ing an appearance to be entered for a lunatic defen- dant, upon an affidavit of service of the writ of summons by leaving a copy with the keeper of an asylum in which the lunatic was confined, without a previous writ of distringas, — the Court set aside the order. Blalce v. Cooper, 11 Com. B. Rep. 680. There is no provision in the Common Law Pro- cedure Act, 1852, for the service of a writ of summons upon a lunatic in a private house ; and as the writ of distringas is abolished, there is no means of pro- ceeding in an action against such lunatic. Holmes V. Service, 24 Law J. Rep. (n.s.) C.P. 24; 15 Com. B. Rep. 293. The 17th section of the act, which enables the Court to allow an action to proceed after reasonable efforts to effect personal service, applies only where the writ has come to the defendant's knowledge or he wilfully evades the service. Ibid. (3) On Prisoners. The governor of Cold Bath Fields Prison having, in obedience to an order of the visiting Justices, refused to allow service of a writ upon a defendant, who was in the prison under criminal sentence, the Court granted a rule to shew cause why an attach- ment should not issue against him ; after which the Justices permitted service of the writ. Danson v. Le Capelain, 21 Law J. Rep. (n.s.) Exch. 219; 7 Exch. Rep. 667. (4) When Defendant without the Jurisdiction. If a writ of summons be issued for service within the jurisdiction against a defendant supposed to be resident in England, and a Judge's order be obtained to allow the plaintiff to proceed to judgment if no appearance be entered by a specified time, on affi- davits shewmg that reasonable efforts have been made to effect service, but in vain, and that the writ has come to the defendant's knowledge, the defendant is entitled to have the order ( but not the writ) set aside, on his shewing that he has been resident out of the jurisdiction ever since the issuing of the writ. Ses- Teeth V. Fleming, 24 Law J. Rep. (n.s.) Q.B. 167. A writ of summons having been served upon the defendant in France, he appeared by attorney, and, the declaration having been delivered, he obtained an order to inspect and inspected the promissory notes on which the action was brought; he then applied to the Court to set aside the writ and all subsequent proceedings on the ground of the writ having been served beyond the jurisdiction of the Court, and of the action having been brought for a breach of a contract made beyond the jurisdiction of the Court : Held, that the writ being regular, and the appearance voluntary, the defendant was not entitled to set aside the writ and all subsequent proceedings. Forhes v. Smith, 24 Law J. Rep. (n.s.) Exch. 167; 11 Exch. Rep. 161. (5) Writ of Distringas or Order in lieu of. [See 15 & 16 Vict. c. 76. ss. 17, 24.] The defendant had no known residence, and could not be found, but he called occasionally at his soli- citors' for letters and answered such letters, posting them in London. The plaintiff's solicitor wrote to the defendant, inclosing a copy of the writ of sum- mons, directed to the defendant at his solicitors', and a correspondence afterwards passed between the plaintiff's attorney and the defendant respecting a compromise of the plaintiff's claim: — The Court granted a distringas to compel an appearance, though there had not been the usual calls and appointments. Qorrirnge v. Terrewest, 20 Law J. Rep. (n.s.) Q.B. 209; 2 L. M. & P. P.C. 12. Orders under the 17th section of the Common Law Procedure Act will in general be granted abso- lute in the first instance, and need not be served. Barringer v. Sandley, 22 Law J. Rep. (n.s.) C.P. 6; 12 Com. B. Rep. 721. (C) Appearance. [As to the mode of appearing to a writ of sum- mons, see 15 & 16 Vict. c. 76. s. 31 In person, see section 30. — By one of several defendants, see sec- tion 33 Non-appearance when writ not specially indorsed, see section 28. — Before judgment, see sec- tion 29.] An appearance sec. stat. having been entered for the defendant, who was an infant, the Court set it and all subsequent proceedings aside, without costs, notwithstanding a delay of several days in the appli- cation, but they required the defendant to undertake to appear by guardian within four days. Leech v. Clahbum, 21 Law J. Rep. (n.s.) Exch. 37. Where an appearance sec. stat. has been entered before the 24th of October, when the 15 & 16 Vict. c. 76. came into operation, the 27th and 28th sec- tions of that act do not apply. Therefore, where a writ was issued on the 29th of September, upon which an appearance sec. stat was entered on the 8th of October, and on the 27th of October a declaration was filed, with a notice to plead indorsed thereon, and no plea pleaded, — Held, that judgment signed, with- out any notice of filing the declaration having been PRACTICE, AT LAW. 563 given to the defendant, was irregular, and the judg- ment and execution thereon were set aside. Goodliffe V. Names, 21 Law J. Rep. (n.s.) Exch. 338; 8 Exch. Rep. 134. By the Common Law Procedure Act, 15 & 16 Vict. c. 76. 8. 27, in case of the non-appearance of the defendant where the writ of summons is indorsed in the special form therein provided, the plaintiff is enabled, on filing a Judge's order for leave to pro- ceed under the provisions of the act, and a copy of the writ of summons, at once to sign final judgment in the form contained in the schedule to the act. And by the same section it is enacted, that " it shall be lawful for the Court or a Judge, either before or after final judgment, to let in the defendant to de- fend upon an application supported by satisfactory affidavits accounting for the non-appearance, and dis- closing a defence upon the merits" : — Held, that an application to rescind the Judge's order may be mad« on affidavits contradicting those upon which the order was obtained, without disclosing a defence upon the merits. HaU v. Scotson, 23 Law J. Rep. (n.s.) Exch. 85; 9 Exch. Rep. 238. Qucere — whether, if the order stands, the judgment signed in pursuance of it can be set aside without auL'h affidavits as are mentioned in the statute. Ibid. QacEce —whether the words of the 27th section, being affirmative, take away the general power of the Court over its judgments, or are merely cumu- lative. Ibid. A plaintiff issued a writ of summons specially in- dorsed, which was served on the 11th of February. The 18th was the last day for appearance by the defendant, and in default of appearance judgment was signed : — Held, that execution might issue on the 27th of February, although the 26th was a Sun- day, the 174th rule of the Rules of Hilary term, 1853, not being applicable to such a case. Rowberry v. Morgan, 23 Law J. Rep. (n.s.) Exch. 191 ; 9 Exch. Rep. 730. (D) PARTICnLARS. [When they may be obtained, see Reg. Gen. Hilary term, 1853, 16 Vict. r. 20, 22 Law J. Rep. (n.s.) ix; 1 E. & B. App. vi. And see as to form of, NosMi v. Page, title Debt. Also title Evi- DBNOB, (A) ((Z).] (a) Where there are special Ootmts. The plaintiff's particulars of demand claimed " One year's salary from the Ist of June 1850, to the Ist of June 1851, at the rate of 2001. per annum, or damages for the dismissal of the plaintiff before the end of the year." The jury having negatived any employment for a year, — Held, that the plaintiff was entitled to recover under the above particulars, and upon a count for work and labour, for work actually done by him during the year as servant to the defen- dants. Sams V. Montgomery, 20 Law J. Rep. (n.s.) C.P. 221; 11 Com. B. Rep. 393; 2 L. M. & P. P.C. 426. (i) Owing Credits im. [See Reg. Gen. Hilary term, 1853, 16 Vict. r. 13, 22 Law J. Rep. (n.s.) viii ; 1 E. & B. App. Ixxxi.] To an action of debt for HI. 8s. the defendant pleaded payment of ISt in satisfaction, &c. ; — Held, upon motion for judgment non obstante veredicto, that the plea was good; inasmuch as since Reg. Gen, Trin. term, 1 Vict, credits given in the par- ticulars of demand need not be pleaded, a less sum than the debt in the declaration might, with credits so given, be equal to such debt. Turner v. Collins, 2 L. M. & P. P.C. 9S; 20 Law J. Rep. (n.s.) Q,.B. 259. (c) Delivery of, with Declaration. [See Reg. Gen. Hilary term, 1853, 16 Vict. r. 19, 22 Law J. Rep. (n.s.) ivj 1 E. & B. App. v.] Where a writ is specially indorsed under the Com- mon Law Procedure Act, — semble, that it is irregular for the plaintiff to deliver any other particulars of demand besides those indorsed on the writ, without leave of the Court or a Judge. But where the plaintiff delivered with his declaration other particulars, with- out leave, and the defendant, instead of objecting, pleaded and went to trial, he was held to have waived the irregularity, and the plaintiff was allowed to avail himself of the second particulars. Promant v. Ashley, 22 Law J. Rep. (n.s.) aB. 237; 1 E. & B. 723. (d) Further and better Particulars. In ordering further and better particulars, the Court will not compel the plaintiff to give particulars of pavments made by the defendant. Fnssell v. Qor- don, 13 Com. B. Rep. 847. (E) Deciaeation. (a) Time within which Plaintiff rrmst declare. [See 15 & 16 Vict. u. 76. ». 58.] A plaintiff who files a declaration within one year after the process is returnable is to be deemed out of court within the Reg. Gen. Hil. term, r. 35, unless he also serves notice of declaration within the same period. Eadon v. Roberts, 23 Law J. Rep. (n.s.) Exch. 8; 9 Exch. Rep. 227. On the 13th of April 1852, the plaintiff issued his writ of summons. On the 24th of October the Com- mon Law Procedure Act came into operation. On the 13th of November the plaintiff entered an ap- pearance for the defendant sec. stat. and filed a declaration, and on the 12th of November 1853 gave notice of declaration : — Held, that the appearance sec. Stat, was good, and that the declaration ought to be set aside. Ibid. A plaintiff who, being abroad, has, after service of the writ of summons on the defendant, been ordered to give security for costs, with a stay of proceedings in the mean time, and does not give security, but on his return to England has the order discharged, is at liberty to declare, although more than a year has elapsed since the service of the summons. Ross v. Green, 24 Law J. Rep. (n.s.) Exch. 193; 10 Exch. Rep. 891. (5) Notice to declare. [See 16 & 16 Vict. c. 76. s. 53.] (c) Rule for Time to declare. [See Reg. Gen. Hilary term, 1853, 16 Vict. r. 7, 22 Law J. Rep. (n.s.) viii; 1 E. & B. App. iii.] 564 PRACTICE, AT LAW. (F) Plea. (a) Time to plead. [Notice to plead, see IS & 16 Vict. c. 76. s. 62.— number of days, see section 63 after amendment; see section 90.] An order to plead several matters was obtained, after the rule office was closed, upon the day that the time for pleading expired. The pleas were delivered the same evening, with a copy of the order and a notice that the rule would be drawn up and served as soon as it could be obtained from the office. At 10 o'clock the following day the plaintiff signed judgment: — Held, that the judgment was regular. Glen V. Lewis, 22 Law J. Rep. (n.s.) Exch. 24; 8 Exch. Rep. 132. (J) Issuable Pleas. [See title Bond, (D) (c).] A plea is not issuable which has been already decided to be bad by the judgment of a Court. Beauclerk v. Hook (in error), 20 Law J. Rep. (n.s.) Q.B. 485. In error to reverse outlawry, the error assigned being that, at the time of issuing the exigi facias^ the plaintiff in error was beyond the seas, the de- fendant pleaded that the plaintiff left the realm before the awarding of the exigi facias, and volun- tarily remained absent; and that he had notice that he was about to be demanded at the county courts, and might have returned before they were holden : — Held, that this plea was not issuable. Ibid. A plea to the further maintenance of an action, brought by the indorsee against the acceptor of a bill of exchange, stating that the defendant was in- debted to T the drawer, that it was agreed between them that the defendant should pay by four instal- ments, and that the defendant should accept a bill; that the defendant accepted the bill in the declara- tion mentioned as security for the payment of the debt; that T indorsed to the plaintiff to hold the bill as bis agent; that the defendant paid three of the instalments before action, and the fourth after action, on the day when it became due, and that it became the duty of T to return the bill to the plaintiff, — Held, a bad and non-issuable plea. Be- sant V. Cross, 20 Law J. Rep. (n.s.) C.P. 173; 10 Com. B. Rep. 895. AVhere the plaintiffs stated in the declaration that the defendant was indebted to them for calls ou shares by virtue of the Companies Clauses Consoli- dation Act and the Railway Act, the defendants being under terms to plead issuably, pleaded that the action was upon contracts without specialty, and that the action did not accrue within six years, Pleld, that this was an issuable plea, and not a frivolous one on account of which the plaintiffs were entitled to sign judgment. Corlc and Bandon Rail, Co. V. Goode, 22 Law J. Rep. (k.s.) C.P. 147; 13 Com. B. Rep. 618. The abstract accompanying a rule to plead several matters described this plea as the Statute of Limita- tions, but the plea was held not to be objectionable on that account. Ibid. (c) Several Pleas. [See 15 & 16 Vict. c. 76. 8.81,] The defendant to an action of trespass ^wire elausum f regit may still plead together the pleas of not possessed and liberum tenementum, notwith- standing the former plea puts in issue the possession and also the right to the possession of the close in question. Slocombe v. Byal, 20 Law J. Rep. (n.s.) Exch. 96; 6 Exch, Rep. 119. A traverse of excuse for profert may be pleaded with other pleas in bar. Porch v. Cresswell, 21 Law J. Rep. (n.s.) Exch. 301. In an action by the public officer of a banking co-partnership, the Court allowed a plea denying that the co-partnership were, at the commencement of the suit, carrying on the business of bankers, in addition to pleas of non-assumpsit and accord and satisfaction. Eoe v. Puller, 21 Law J. Rep. (n.s.) Exch. 104; 7 Exch. Rep. 220. Parties may appeal to the Court against a Judge's order allowing several pleas on the ground that they are founded on the sameground of defence, although the Common Law Procedure Act enacts that all objections to pleadings on that ground shall be henrd on the summons to plead several matters. Griffith V. Selhy, 23 Law J. Rep. (n.s.) Exch. 226 ; 9 Exch. Rep. 226. To a declaration complaining of the breach of an agreement by the defendant to buy of the plaintiff, a patentee, all goods to be ordered by the defendant for the use of the patent, a Judge at chambers allowed the defendant to plead a plea denying the plaintiff's readiness and willingness to deliver the goods, and also a plea " that the goods which the plaintiff was ready and willing to deliver were not fit and proper for working the patent." The Court disallowed the latter plea, on the ground that the defence was available under the plea of readiness and willingness. Ibid. {d) Framed to embarrass. [See IS & 16 Vict. c. 76. s. 52.] [See Patent.] In an action of covenant for carrying on trade by the defendant, the declaration alleged that the plain- tiff was engaged in the trade in Liverpool, whereof the defendant had notice, and assigned as a breach that the defendant carried on the same trade in Liverpool contrary to his covenant. The defendant pleaded that he had no such notice, and the plaintiff demurred to the plea on the ground that the traverse was immaterial. The defendant applied to a Judge at chambers to set aside the demurrer as frivolous, or to strike out the allegation of notice in the decla- ration. The summons being dismissed, a similar application was made to the Court by the defendant, but no bad faith or trick being shewn to exist on the part of the plaintiff, the Court refused to gi-ant either alternative. Tallis v. Tallis, 21 Law J. Rep. (n.s.) Q.B. 26fl; 1 E. & B. .3!)7. Cutfs v. Surridge, 9 Q.B. Rep. 1015; a. c. 16 Law J. Rep. (n.s.) Q.B. 193, explained and qualified. Ibid. To an action containing two counts upon two mort- gage deeds, and two upon bonds collateral to them, the defendant pleaded to each count the Statute of Limitations, 3 & 4 Will. 4. c. 42; to which the plaintiff replied, that the defendant before the com- mencement of the suit made an acknowledgment that the debt remained unpaid and due to the plain- PRACTICE, AT LAW. 565 tiff, within the true intent and meaning of the statute, anil that the action was brought within twenty years after such acknowledgment : — Held, that this repli- cation was framed to embarrass and prejudice the fair trial of the cause, and must be amended by specifying one or more of the modes of aoknow- leilijment mentioned in the statute. Forsyth v. Bristowe, 22 Law J. Rep. (n.s.) Exch. 70; 8 Exch. Rep. 347. (c) Puis darrein Continuance. To an action on a recognizance of bail, the defen- diint pleaded, first, no record of such recognizance; secondly, no writ of ca. sa.; and thirdly, payment. The plaintiff having obtained judgment on the first two pleiis, the issue on the third came on for trial at Nisi Prius, when the defendant tendered a plea^ais darrein continuance, which was accepted by the Judge, and the jury discharged from trying the issue joined : — Held, that the plea puis darrein continue ance was properly received, as it was a waiver of those pleas which only remained to be tried. Wagner V. Inibrie, 20 Law J. Rep. (n.s.) Exch. 23S; 6 Exch. Rep. 380. (/) Withdrawing Plea. The plaintiff becoming insolvent after issue joined, the defendant, by leave of a'Judge, given under the statute 15 & 16 Vict. c. 76. a. 142, (the plaintiff's assignees not giving security for costs), pleaded a plea of the plaintiff's insolvency, withdrawing his old pleas. 'The plaintiff, confessing the plea and giving notice to tax his costs, under rule 23. of the JVew Pleading Rules, the Court held that the plain- tiff was entitled to costs under the rule if the plea of insolvency stood, but allowed the defendant to with- draw that plea, and to substitute his old pleas again and to go on with the action. Plummer v. Sedge, 24 Law J. Rep. (n.s.) Q.B. 24. (G) PlEADIKO and DEMnKRINQ TOQETHEK. [See IS & 16 Vict. c. 76. ». 80.] Where a party has obtained a Judge's order for leave to traverse and demur to a pleading under the 80th section of the Common Law Procedure Act, 1852, and judgment has been given against him on the demurrer, the Court will not rescind the order as to the traverse and strike it out. Sheehy v. the Pro- fessional Life Assurance Co., 22 Law J . Rep. (n.s. ) C.P. 24,9. Where a party applies for leave to plead by way of traverse, and demur to the same pleading, under the 15 & 16 Vict. c. 76. s. 80, he ought to swear that the allegations proposed to be traversed are untrue. Lurrdey v. Gye, 22 Law J. Rep. (n.s.) Exch. 9. Semble — that in such cases if the facts are within his own personal knowledge, he must swear posi- tively to that effect ; if not, then that he is so in- formed and believes; and if a third person is vouched he should shew either that he has made inquiry of that person, or that it would be impossible or incon- venient to do so. Ibid. In an action on a contract the Court allowed the defendant both to plead and demur to the declara- tion, although the validity of the contract had been affirmed on a motion for an injunction in the Court of Chancery, to which the defendant was a party, and in the decision of which Court he had acquiesced. Ibid. It is discretionary with the Judge whether he will allow a party to plead and demur together, although the affidavit may be made as required by the 16 & 16 Vict. c. 76. s. 80. Thompson Y. Knowles, 24 Law J. Rep. (n.s.) Exch. 43. (H) Demurker. [As to form of paper books, see Reg. Gen. Hil. term, 1856, 16 Vict. r. 17; 22 Law J. Rep. (ir.s.)ix; 1 E. & B. App. v.] Special demurrers pending at the time when the Common Law Procedure Act came into operation are not affected by its provisions, but must be decided according to the previous law. Pinhorn v. Sowster, or Sonster, 22 Law J. Rep. (n.s.) Exch. 18; 8 Exch. Rep. 138. The objection that paper books have not been delivered in time nor paid for, may be taken in the Common Pleas without any notice of an intention to take it. Borsett v. Asp'din, 2 L. M. & P. P.C. 625; 11 Com. B. Rep. 651. (I) SnQOESTION OF NeW MATTER. [See 15 & 16 Vict. c. 76. s. 143.] To entitle a defendant to a rule for a suggestion under the 143rd section of the Common Law Proce- dure Act, it must be clearly and satisfactorily shewn by affidavit, that the facts sought to be added by the suggestion will make the pleading good. Mamley v, Boycot, 22 Law J. Rep. (n.s.) Q.B. 265; 2 E. & B. 46. In order to entitle a party to a suggestion after a pleading has been adjudged defective under section 143. of the Common Law Procedure Act, he must shew by affidavit a clear and satisfactory ^rimiJ/acie case of the truth of the facts proposed to be suggested, and of their sufficiency to render the pleading good. Fisher v. Bridges, 22 Law J. Rep. (n.s.) Q,.B. 270; 2 E. & B. 118. (J) Trial. [Judgment for not proceeding to trial, see title Jddgment.] (a) Notice of Trial. (1) After Injunction. A town cause having been made a remanet, and then postponed by consent to the Sittings after Hilary term, 1849, further proceedings were stayed by an injunction obtained by the defendant on the 1 1th of January 1 849. The injunction was dissolved on the 7th of August 1850 :_Held, that the plaintiff was not bound to give afresh notice of trial for the sittings after Michaelmas term. The Stockton amd Dar- lington Rail. Co. V. Fox, 20 Law J. Rep. (n.s.) Exch. 96; 6 Exch. Rep. 127. (2) Short Notice. [See Reg. Gen. Hil. term, 1853, 16 Vict. r. 35, 22 Law J. Rep. (n.s.) xi; 1 E. & B. App. ix.] The defendant having obtained time to plead, taking short notice of trial, if necessary, before the sheriff, delivered two pleas on the 5th of August, whereupon the defendant on the 10th delivered a replication joining issue on the pleas, and on the following day delivered the issue with notice of trial 7 566 PRACTICE, AT LAW. ■f indorsed to try the issue before the sheriff on the 18th. The defendant having returned the i tion of it, by which it was recited that the judgment debt was paid off; but he said that in fact this was only done for the purpose of clearing the estate, and that he had taken an assignment of the debt : — Held, that if he had not been a mortgagee, he must have produced the deed, and 4,000?. having been paid to him without prejudice to any question in the cause, held, that he could not set off SSOl. of that as due to the judgment debt, but must be taken to be paid off as mortgagee, and therefore liable to pro- duce the deed. Cannock v. Jaimcey, 1 Drew. 497. Upon a claim, the Court refiised a motion made by the plaintiff under the 15 & 16 Vict. c. 86. s. 18, for the production of documents supported by the plaintiff's affidavit alone of their importance to the cause. Wing v. Harvey, 1 Sm. & G. App. x. A defendant held not bound to set forth a list of documents in his possession relating to his own title. Sutherland v. Sutherland, 17 Beav. 209. On a bill to set aside a deed filed by one plaintiff only, praying that, if necessary, it might be taken as in behalf of creditors generally, it appeared that A claiming under the deed had a power of appoint- ment, and that she had appointed under her power; the plaintiff moved for production of documents in the hands of the trustee of the deed, offering to confirm the appointment of A. The appointees were not parties :_Held, that the production could not be enforced in the absence of these persons. Ford V. Dolphin, 1 Drew. 222. (5) Privileged Documents. The defendant purchased an advowson, and then mortgaged it to the plaintiff, who subsequently filed a bill against the defendant and his agent who acted in the purchase and the mortgage. The bill prayed an account as to the amount due upon the mortgage, and charged that the plaintiff had been deceived in the value of the property. Upon motion for pro- duction of documents, it was held, that as there was no allegation that the documents were written after the dispute arose, or contained legal advice or opin- ions, they must be produced. Hawldns v. Gather- cole, 20 "Law J. Rep. (n.s.) Chanc. 303; 1 Sim. N.S. 150. The defendants in a. suit were shareholders in a company, and had been authorized by the otlier shareholders to wind up its affairs, and for this pur- pose among other things to send out agents to India. The plaintiffs in the suit having brought actions against the defendants as shareholders, in respect of certain debentures issued by the company, the de- fendants thereupon filed a bill on behalf of them- selves and the other shareholders to restrain the actions and to obtain relief in respect of the deben- tures. The plaintiffs then filed a bill against the defendants for discovery in aid of the actions. From the answers of the defendants to this bill, it appeared that they had in their actual possession certain letters which bad passed between the defendants and the directors and shareholders of the company, and the agents in India, after the dispute had arisen and in contemplation of and pending proceedings in respect of the dispute, and for the purpose of assisting the defence of the defendants and the other shareholders. On a motion by the plaintiffs for the production of PRACTICE, IN EQUITY. 585 these letters, the defendants submitted that they were not bound to produce them, first, because they held them on behalf of themselves and also of the other shareholders of the company who were not parties to the suit; and, secondly, because the letters fell within the class of privileged communications : — Held, ordering the production, that the defendants sufficiently represented the whole body of share- holders for the purposes of the litigation, and that, so far as the parties by or to whom the letters were sent were shareholders of the company, the letters were not privileged. Olyn v. Caulfeild, 3 Mac. & G. 463. Held, also, that the circumstance that the letters related to the matters in dispute, and arose out of communications between the shareholders themselves with a view to their defence in the suit, formed no ground of protection. Ibid. Professional privilege, as a ground of exemption from production of documents, is adopted simply from necessity, and ought to extend no further than absolutely necessary to enable the client to obtain professional advice with safety. Ibid. A defendant admitted that he had in his possession documents relating to the matters in the bill, but refused to set forth a list of them, because they had been procured by his solicitor since the institution of the suit, and for the purpose of his defence to it; and the same were, as he was advised and insisted, confidential communications : — Held, that the alle- gation relative to the documents did not justify the defendant's refusal to set forth a list of them, and therefore his answer was insufficient. Batgv/y v. Broadhwrst, 1 Sim. N.S. 111. The attorney of the plaintiffs in an action commu- nicated to the plaintiffs in another action against the same defendant, and involving, substantially, the same question, a case and opinion taken on behalf of the plaintiffs in the former action, with permission to copy it. The defendant in the actions filed a bill of discovery against the' plaintiffs, to whom the case and opinion had been lent : — Held, that they could not be compelled to produce the copy which they had made. Enthtmen v. Cobh, 2 De Gex, M. & G. 632; S De Gex & S. 595. Communications between a person and his legal adviser, who had been a solicitor, but, at the time of the communication, had, without his knowledge, ceased to practise, are privileged. The commu- nications had reference to the validity of a will, and passed between the plaintiff and his legal adviser between the date of tfie will and the death of the testator. It was objected that they could not have taken place in contemplation of a suit respecting the validity of the will, and were therefore not pro- tected : — Held, that this did not take them out of the rule. CalUy v. Richards, 19 Beav. 401. (c) Original Will. The probate of the will not being, sufficient to satisfy the Court that the testator's will was so set out as to enable them to construe it correctly, re- quired the production of the original, and did not confine its attention to the probate. Maimmg v. PwrceU, 24 Law J. Kep. (n.3.) Chanc. 522. (0) Intekrogatories. Where a, written bill is filed under the Chancery Digest, 1850—1865. Procedure Amendment Act (16 & 16 Vict. c. 86. s. 6.) interrogatories may be filed before the printed copy of the bill is filed. Lambert v. Lomas, 22 Law J. Rep. (n.s.) Chanc. 12; 9 Hare, App. xxix, Ivii. Only one stamp is to be paid for by a plaintiff filing a written and printed copy of a bill. Ibid. Under the 12th section of the statute 15 & 16 Vict. c. 86, and by the 17th and 18th Orders of the 7th of August 1852, requiring a copy of interrogato- ries to be delivered " to a defendant or defendants, or his or their solicitor," it is sufficient that such copy be left at the office of the sohcitor, and need not be served on the solicitor personally. Bowen v. Price, 22 Law J. Rep. (n.s.) Chanc. 179; 2 De Gex, M. & G. 899. The time within which the interrogatories ought to be delivered, under the 1 7th Order of the 7th of August 1852, having expired, the. Court, under the 20th Order, upon a motion, of which notice was given, enlarged the time within which such interro- gatories should be delivered. Empson v. Bowley, 2 Sm. & G. App. iii. Order to exhibit further interrogatories for the examination of witnesses under a commission, not restricting the further examination to the new wit- nesses. Paries v. Forbes, 9 Hare, App. Ixxvii. (P) ArFIDAVMS. At the hearing of a claim a plaintiff's affidavit cannbt be received as evidence of a disputed fact. Smith V. Constant, 20 Law J. Rep. (n.s.) Chanc. 126; 4 De Gex & S, 213. A defendant's affidavit on a claim is entitled to the same weight as a defendant's answer in a cause heard on bill, answer, replication and depositions on interrogatories. Ibid. It is competent for the Court to decide claims, where there are diluted facts and a conflict of evidence, on affidavit evidence alone. Ibid. The difference between affidavit evidence and depositions taken on interrogatories is not so great as to induce the Court, on the hearing of a claim involving questions of fact alone, to direct a bill to be filed. Ibid. In orders made upon claims, the affidavits of the plaintiffs and the defendants will be entered as read, with a direction to the Master that the plaintiffs' affidavits are not to be considered as evidence, and that the defendants' affidavits are to be treated in all respects as if they were their answers to bills filed against them, Cockbum v. Green, 20 Law J. Rep. (n.s.) Chanc. 216. An affidant will be permitted to be sworn in open court in case of urgency. The Mercers Co. v. the Witham NamgaUon Co. a/nd the Qreat Nortliem Rail. Co., 20 Law J. Rep. (n.s.) Chanc. 557; 14 Beav. 20. It is irregular to swear an affidavit before the solicitor of the deponent, and all proceedings conse- quent upon an affidavit so sworn will be set aside, with costs. HopTarn v. Hophin, 22 Law J. Rep. (n.s.) Chanc. 728; 10 Hare, App. ii. An affidavit sworn in Australia, before an officer describing himself as "a Commissioner for taking affidavits," is, under the 22nd section of the 16 & 16 Vict. c. 86, receivable in evidence,' without proof of the handwriting of the Commissioner, notwithstand- ing such affidavit was sworn before the said act came i F 586 PRACTICE, IN EQUITY. into operation. Baseman v. Cooke, 22 taw J. Rep. (n.s.) Chanc. 744; 3 De Gex, M. & G. 39. After a cause was called on for hearing, a motion was made by the plaintiff (upon special circumstances stated by him) that an affidavit, filed by him in answer to the defendant's affidavits, after the expira- tion of the time for closing the evidence, might be read at the hearing, or that the time for closing the evidence might be enlarged. The Court (consider- ing that the evidence ought to be admitted) ordered that the affidavit should be read at the hearing, saving just exceptions. Hope v. ThrelfaU, 23 Law J. Rep. (h.s.) Chanc. 33; 1 Sm. & G. App. xxi. The plaintiff, having elected to take evidence orally, moved for leave to read affidavits already filed and to be filed, on account of the age and infirmity of the witnesses and their residence in the country, the defendants to have liberty to cross- examine orally: — Held, that there were no circum- stances to induce the Court, under the 15 & 16 Vict. c. 86. s. 36, to allow aifidavits to be read; as a special examiner could be sent down, who might take the examination in chief orally, as well as the cross-examination; and that a question relating to an intricate pedigree, where the witnesses were in humble life, was one in which oral testimony was particularly desirable. Rogers v. Hooper, 23 Law J. Rep. (n.s.) Chanc. 449; 2 Drew. 97. Where a defendant had filed three insufficient affidavits as to documents, and upon the plaintiff's obtaining an attachment filed a fourth affidavit, the Court refused to take it off the file. Harford v. Lloyd, 23 Law J. Rep. (n.s.) Chanc. 710. The words " at their respective places of business" in the 2nd section of the 16 & 17, Vict. c. 78, are not to be construed as defining the place where the oath is to beadministered, but the area within which the solicitors are to be considered as practising. In re Cleric of Records amd Writs, 23 Law J. Rep. (H.s.) Chanc. 1002; 3 De Gex, M. & G. 725-, n. An affidavit was sworn in the United States .of America before a notary pubhc, and the jurat stated that fact. Appended to the affidavit was a certifi- cate of the British consul at New York, stating that the notary held such office, and that his signature was entitled to credit. The United States consul in England was sivorn to have alleged that notaries were entitled to swear affidavits ; — Held, that not- withstanding the words of the 22nd section of the statute 15 & 16 Vict. c. 86, the authentication was Buflicient. Haggitt v. Ineff, 24 Law J. Rep. (N.s.) Chanc. 120; 5 Ue Gex, M. & G. 910. An erasure in an affidavit occurring in the recital of the contents of an exhibit, held to be immaterial. Savage v. Hutchinson, 24 Law J. Rep. (n.s.) Chanc. 232. The jurat to the affidarit of a marksman, sworn in America before a notary public, containing a state- ment that the affidavit was read over to the deponent, which is the common form in use there, held to be sufficient. Ibid. Where, before the month of January 1855, issue was joined in a cause in which the plaintiff elected to take evidence orally and had examined his witnesses, a defendant applied, under the 7th Order of January 13tli, 1855, for leave to prove his case by affidavit, Lord Justice Turner, agreeing with the Master of the Rolls in the particular case before the Court, re- fused the application, Musgrove v. Smith, 24 Law J. Rep. (N.s.) Chanc. 439. Sums of money ought to be written in the body of affidavits in words at length, and not in figures. Crook V. Crook, 24 Law J. Rep. (N.s.) Chanc. 604. Persons making affidavits to be used in a iuit or other proceeding are, at the request of the parties, subject to be cross-examined upon them. Kay v. Smith, 24 Law J. Rep. (n.s.) Chanc. 788; 20 Beav. 566. Affidavit sworn abroad ordered to be filed, al- though the place at which it was sworn was omitted in the jurat. Meek v. Ward, 10 Hare, App. 1. Affidavits erroneously entitled, allowed to betaken off the file and re-sworn in their proper title without a fresh stamp. Pearson v. Wilcox, 10 Hare, App. XXXV. Affidavits made in one cause, or matter in this court, used as evidence in another cause or matter. In re Pickamce's Trust, 10 Hare, App. xxxv. Evidence of the propriety of a sale of an estate by private contract heard and approved of in court, and not referred to chambers. Pimm v. InsaU, 10 Hare, App. Ixxiv. When the evidence in a cause is taken orally, a general application under the 36th section of the 15 & 16 Vict. c. 86, to be at liberty to use, at the hearing, affidavits already filed, is irregular. The particular facts, or circumstances, proposed to be proved by affidavits, should be specified both in the notice of motion and in the order. Ivison v. Gras- siot, 17 Beav. 321. Affidavits as to matters directly in issue in the cause which are filed after the filing of the certificate of the Judge's clerk, will not be admitted at the hearing on further consideration; but, if necessary, upon the suggestion of counsel, an inquiry may be directed. Fleming v. East, Kay, App. lii. It is not enough to identify a document, that it should be inseparably connected with, and referred to as connected in the affidavit. The document must be impressed with some mark, to which the affidavit refers. Hewetson v. TodhwUer, 2 Sm. & G. App. ii. (Q) Special Examinees. A motion that a person should be specially ap- pointed by the Court to examine witnesses is not a motion of course, but ought to be made in court. M'Neill V. Acton, 22 Law J. Rep. (n.s.) Chanc. 584. In cases of urgency, the Court will appoint a special examiner to take the evidence of witnesses in a cause. Brennan v. Preston, 22 Law J. Rep. (n.s.) Chanc. 1040; 10 Hare, App. xvii. Form of order appointing an examiner in several colonies in Australia. Crofts v. Middleton, 9 Hare, App. Ixxv. Special examiners are entitled to a fee of five guineas a day only, and, aemble, their clerks are en- titled to 5s. per diem. No extra fee is payable for an extended sitting during a day, nor for the pre- liminary labour of reading the papers. Payne v. Little, 21 Beav. 65. The plaintiff moved that a solicitor might be ap- pointed to examine witnesses residing more than twenty miles from London : — Held, that the appli- cation might be made by motion in Court instead of PRACTICE, IN EQUITY". 587 at chambers; and that in case of witnesses resid- ing so far from London, the old practice was un- changed; but the evidence in this case being special, a barrister to be chosen by both parties, must be the examiner. Costs to be costs in tlie cause. Seed v. Prest, Kay, App. xiv. (R) Examination op Witnesses. Under a commission issued forth for the exami- nation of witnesses, both the plaintiff and the defen- dant examined witnesses: — Held, that the defendant was liable to pay his proportion of the expenses of the execution of the commission. Grove v. Yovmg, 20 Law J. Rep. (n.s.) Chanc. 167. In the absence of a special agreement, a Commis- sioner for the examination of witnesses will not be required to file the depositions taken in the cause without payment of his fees. Peters v. Beer, 20 Law J. Rep. (n.s.) Chanc. 424; 14 Beav. 101. Order for the examination of a witness who had been examined in the cause. Interrogatories for the examination of the witness settled by the Master, who issued his certificate. Objections to the inter- rogatories- ought to be made upon the depositions being taken, and not by exceptions to the Master's report. Barker v. Birch, 20 Law J. Rep. (n.s.) Chanc. 532. The Court having directed a commission to issue for the examination of witnesses upon the certificate of the Master, and that commission having miscarried, by reason of the defendant being deprived of an op- portunity of cross-examining the plaintiff's witnesses, a new commission was directed by the Court to issue without any further certificate of the Master. PoT' Byth v. Bllice, 21 Law J. Rep. (n.s.) Chanc. 590. A testator gave the residue of his property to be held in deposit for the purpose of inquiring whether there were any relations of his blood living, and if so the said residue was to be divided equally among them. Upon a reference to the Master to make in- quiries in conformity with the above residuary be- quest, the Master reported that a commission ought to be sent to Venice to examine witnesses as to who were the next-of-kin. The Court, upon the appli- cation of the executors, made an order for a foreign commission, and also directed what sum should be allowed out of the testator's property for the ex- penses of the commission. Heaih v. Chapman, 21 Law J. Rep. (n.s.) Chanc. 614. The examination of witnesses de iene esse is within the Chancery Procedure Amendment Act (15 & 16 Vict. c. 86. B. 28). The examination of witnesses de iene esse is to be taken by one examiner. Cook V. UTall, 22 Law J. Rep. (n.s.) Chanc. 12; 9 Hare, App. xx. It is not necessary to obtain an order for liberty to examine a co-defendant under the 14 & 15 Vict. c. 99 (Lord Campbell's Act). Swarni, v. Worthy, 22 Law J. Rep. (N.s.) Chanc. 74; 9 Hare, 460. If, at the hearing of a claim, the defendant dis- proves a material fact alleged by the plaintiff, the Court will not, on the application of the latter, order the examination of witnesses irivd voce on the dis- puted fact. Wilkinson v. Stringer, 22 Law J. Rep. (N.s.) Chanc. 107; 9 Hare, App. xxiii. Semite in examining witnesses vivd voce at the hearing, under the Chancery Procedure Amendment Act (15 & 16 Vict. c. 86. s. 39), the Court will be guided by the rule adopted under the old practice of granting issues at the hearing. Ibid. Lord Campbell's Actt(U H 1,5 Vict. c. 99.) does not alter the practice of the Court in making orders. An order for the examination of a plaintiff de bene esse under the statute is an order of course, and the Court will not impose any condition in granting it. Forbes v. Forbes, 22 Law J. Rep. (n.s.) Chanc. 144; 9 Hare, 461. The Court will, if convenient to the examiner of the court, direct his attendance at the residence of a sick witness, to take his examination, but will not give leave in anticipation to serve short notice of any alteration which may unavoidably become necessary in the appointment. Pillam v. Thompson, 22 Law J. Rep. (n.s.) Chanc, 1006; 10 Hare, App. Ixxvi. Where further evidence is necessary after a decree, a special order of the Court is not necessary for the oral examination of witnesses before the examiner. Sections 40. and 41. of the statute IS & 16 Vict, c. 86. Anom/mous, 23 Law J. Rep. (n.s.) Chanc. 24. On a motion for an injunction, the defendant is entitled to cross-examine the plaintiff's witnesses before filing his own affidavits. Besemeres v. Bese- meres, 23 Law J. Rep. (n.s.) Chanc. 198; Kay, App. xvii. "The Court of Appeal has jurisdiction, under the 39th section of the statute IS & 16 Vict. c. 86, to require the production and examination before itself of a party to a cause, although he may not have been orallv examined in the court below. Hope v, Thrdfall', 23 Law J. Rep. (k.s.) Chanc. 631. The expression "upon the hearing " in the 39th section, means " whenever or wherever a cause is heard." Ibid. Under a decree in a cause certain inquiries were - directed. A witness, having been served with a sub- poena to attend before the Master, declined to attend. An order was made ex 'parte, with costs, that he should appear within four days, or be committed to " the Queen's Prison. Brook v. Biddall, 23 Law J. Rep. (n.s.) Chanc. 696. A special examiner, appointed to take the cross- examination of witnesses who had made affidavits on a motion for injunction, is at liberty to file the depositions from time to time, without waiting until the examination has been concluded. Clark v, QUI, 23 Law J, Rep, (n.s.) Chanc. 711 ; 1 Kay & J. 19. Semhle — that professional men, although residing within the weekly bills of mortality, may require compensation to be paid to them, and that before they are sworn. Ibid. It is not sufficient under the Chancery Practice Amendment Act, that the examiner should dictate to bis clerk the depositions of the witnesses, and authenticate them by his signature; but it is com- pulsory upon him to take down such depositions in his own handwriting. Stoba/rt v. Todd, 23 Law J. Rep. (n.s.) Chanc. 956. Where a witness has given evidence before the examiner inconsistent with previous statements made by him, and upon being examined as to the previous statements does not admit them, it is competent for the party producing him to bring forward evidence of such previous statements. Buckley v. Cooke, 24 Law .T. Rep. (n.s.) Chanc 24; 1 Kay & J. 29. The interpretation clause (section 99.) of the Common Law Procedure Act, 1854, does not con- 588 PRACTICE, IN EQUITY. fine the meaning of the word " Judge,'' in those sections nhich are extemitd by the 103rd section to every court of civil judicature in England and Ire- land, to a Judge of a common law court. Ibid. The return of a commission from Jamaica, which omitted to state that the Commissioners and their clerks had taken the oaths, ordered to be amended, and to be received in evidence, though, in addition, the signature of the Commissioners had not been affixed to the interrogatories. J)avis v. Barrett, 14 Beav. 25. A defendant or witness, if interrogated as to matters tending to criminate him, may decline to answer at any time, notwithstanding what he has disclosed may be sufficient to convict him. The decision in Ewin v. Osicddiston, 6 Sim. 608, disap- proved of. The King of the Two Sicilies v. WiM- cox, 1 Sim. N.S. 30. Attendance of the plaintiff and another witness for oral examination, ordered under the 39th section of the 15 & 16 Vict. c. 86, at the hearing of a claim founded on a legal demand, where prior to that statute the Court would have given the plaintiff leave to bring an action. DeaviUe v. Deaville, 9 Hare, App. xxii. Depositions are not vitiated by a difference be- tween the title of the depositions and the title of the cause, where the suit in which the depositions are taken is clearly identified. Harford v. Bees, 9 Hare, App. Ixviii. On a motion to dissolve an injunction to stay proceedings at law, the plaintiff in equity has no right, under the 40th section of the 15 & 16 Vict. c. 86, to require that the motion shall stand over in order that he might examine orally witnesses who have made affidavits for the defendant. Nomwm- ville V. Stanning, 10 Hare, App. xx. Order to read on the trial of an issue the deposi- tions of a living witness taken in a suit to perpetuate testimony, the witness being too infirm to attend at the trial. Wat]ci>is v. Atchison, 10 Hare, App. xlvi. The defendant having obtained an order for the payment of his costs by the plaintiffs, which order recited that the testimony of the witness had been taken, the depositions of the witness must be re- garded as having been completely taken, and are not therefore to be excluded on the ground of the want of sufficient cross-examination. Ibid. On the examination and cross-examination of an aged and infirm witness labouring under deafness, the questions were put and answers received through the medium of the daughter of the witness, and the examiner certified that the state of the witness did not permit the examination to be proceeded with without danger to her life, and that much of tlie cross-examination and all the re-examination had been pretermitted. The defendant afterwards ob- tained an order for his costs, which recited that the testimony of the witness had been taken : Held, that the defendant having concurred in the mode of examination adopted could not afterwards object to the use of the testimony by impeaching its fidelity on that ground. Ibid. Where a Commissioner for the examination of witnesses had taken upon himself notwithstanding the demurrerof a witness to examine her, — Held, that the deposition must be suppressed, although upon hearing the demurrer the Court held it to be unten- able. Held, secondly, that where the witness was not informed by the Commissioner that her statement as to the reasons for her demurrer should be upon oath, her demurrer was not invalid by reason of her not having been sworn to the truth of the statement. Held, thirdly, that the Commissioner ought not to have been served with a petition to suppress the depositions, and the petition as against him was dis- missed with costs. GoodaXe v. Gawthom, 4 De Gex & S. 97. In a cause at issue before the Orders of the 7th of August 1852, the parties in July 1852 agreed to postpone publication till the 2nd of November on the ground that the new practice would then come into operation. The case was one in which it was not clear, but probable that oral examination might be the most effective: — Held, that the postpone- ment of publication was not an agreement to adopt the new practice, but in the absence of special reasons to the contrary, there being a probability of advantage in applying the new practice, it ought according to the intention of the act to be applied. Howwrd V. Howard, 1 Drew. 239. The Court, under the 15 & 16 Vict. cc. 80, 86, directed that a party to a suit, a witness by affidavit on his own behalf in support of his own state of facts before the Master, should be cross-examined before the examiner instead of the Master, and that all the parties should be examined on interrogatories before the examiner as the Master should direct. HextaU V. CheaUe, 1 Sm'. & G. 78. The examination orally in court of a litigant party is not his right, but is a question for the discretion of the Court, and it was refused when asked on behalf of a plaintiff, who by his bill charged fraud against the defendant, which was disproved by his witnesses, and the plaintiflr had already before the hearing of the cause stated his case on his own oath. Oliver v. Wright, 1 Sm. & G. App. xvi. The omission by an examiner to sign his name to the depositions of a witness taken by him, and re- turned to the Record and Writ Clerks' Office, is not such an irregularity as to prevent the Court from directing them to be filed on terms; but where in a suit at issue before the new practice came into oper- ation a special examiner had been appointed by order of the Court, but no commission had been issued according to the old practice, and witnesses were examined upon interrogatories, and not orally, and there had been great delay, the Court refused to order the depositions to be filed. Stephem v. Wa/iMm, 19 Beav. 585. (S) Examination op Parties. Trustees sold out trust stock and handed over the proceeds to J, their solicitor, for re-investment, who misapplied the money. In a suit by the cestuis que trust against the trustees and J, the plaintiffs ex- amined J. as a witness, and the bill was dismissed as against him : — Held, that a decree might still be had against the trustees, on the ground that J. was not a necessary party to the suit in order to obtain the relief prayed against the trustees. Jtowland v. Witlierden, 21 Law J. Rep. (n.s.) Chanc. 480; 3 M^c. & G. 668. Qtuere — whether the efl^ect of the statute 6 & 7 Vict. c. 85. is to enable the Court to make a decree PRACTICE, IN EQUITY. 589 against a defendant in equity who has been examined as a witness in the cause. Ibid . A motion by a plaintiff that he might be at liberty to issue a subpoena addressed to the defendant, requiring him to appear at the hearing of the cause, to testify concerning matters in the cause, was. re- fused. May V. Biggenden, 22 Law J. Rep. (n.s.) Chanc. 429; 1 Sm. & G. 133. Where it is desired to examine a defendant who is out of the jurisdiction, the Comt will appoint an examiner to take the evidence vivd voce. Crofts v. Middleton, 22 Law J. Eep. (n.s.) Chanc. 706 j » Hare, App. xviii. Application to examine a plaintiff mvA voce in the Master's office refused. Wood v. Homfray, 14 Beav. 7. The Court refused to direct the oral examination of a party to the cause under a decree which had been made directing accounts and inquiries, before the new Procedure Act came into operation. Sher- wood V. Vincent, 9 Hare, App. xix. The plaintiff may since the 14 & 15 Vict. c. 99, examine as a witness a defendant in a suit in equity without prejudicing his right to a decree in the same suit against such defendant. Hwrford v. Sees, 9 Hare, App. Ixx. Where a defendant tendered himself for examina- tion vivd voce belon-, and the plaintiff opposed his examination, the Court of Appeal declined acceding to a proposition of the plaintiff to examine him. Hmdson v. Weafherill, 3 De Gex, M. & G. 301. (T) Etidenoe befoeb the Masteb. The plaintiff filed an ordinary creditors' bill against the executor of a testator. The plaintiff's debt was disputed, but the Court considered the debt to have been established by evidence and made a decree in his favour. It was contended that the plaintiff's debt having been so established theje was no obligation upon him to go into the Master's office in common with the other creditors to prove his debt over again : — Held, that the principle and practice were otherwise, and that the decree must direct the Master to take an account of what was due to the plaintiff and the other creditors of the testator. Meld v. Titmuss, 20 Law J. Rep. (n.s.) Chanc. 328; 1 Sim. N.S. 218. An inquiry was directed to be made by the Mas- ter; the Master made his report, which was not ex- cepted to. The parties were held to be at liberty, at the hearing of the cause for further directions, to refer to the affidavits and other materials used before the Master on his inquiry. Nedby v. Nedby, 21 Law J. Rep. (n.s.) Chanc. 446; 6 De Gex & S. 377. A party to a matter may be examined vivd voce by the Master on an inquiry directed to him. In re Kirly's Trust, 21 Law J. Rep. (n.s.) Chanc. 464; 5 De Gex & Sm. 228. The 15 & 16 Vict. u. 80. o. 15. and the IS & 16 Vict. c. 86. do not empower the Court to direct an examination of a defendant vi/od voce in the Master's office, in a suit at issue before the latter act was passed. Booth v. TomXinson, 22 Law J. Rep. (n.s.) Chanc. 75; 16 Beav. 251. (U) Comdcot of Sdit. Co-plaintiffs must act together, and cannot take inconsistent proceedings. Wedderbwa '^. Wedder- iv/m, 17 Beav. 158. One of several co-plaintiffs moved for liberty to take a state of facts into the Master's office, and pro- ceed thereon apart from the rest. The motion was refused with costs. Ibid. (V) Attending Pbooeedings. In the absence of directions made at the hearing of a cause, the Court will not, upon an interlocutory application, make any order to restrain the defen- dants, though very numerous, from attending the subsequent proceedings in the cause, though the result would be a very large saving to the estate of the testator. Day \. Crofts, 20 Law J. Rep. (n.s.) Chanc. 423; 14 Beav. 29. A wife, in person, has no right to be heard on be- half of her husband upon an application by him to the Court. Oldfidd v. CMelt, 20 Law .1. Rep. (n.s.) Chanc. S57; 14 Beav. 28. Order that interested persons not parties to the suit should be at liberty to appear at the hearing. Lewis v. Clowes^ 10 Hare, App. Ixii. (W) Staying Proceedings. Where an agreement to compromise a suit goes beyond the ordinary range of the Court in the exist- ing suit, and the right to enforce the agreement is disputed, and d, fortiori where the agreement itself is disputed, the proper course of proceeding is by bill for specific performance, and not by motion or petition to stay proceedings in the original suit. Askew V. MiUmgton, 20 Law J. Rep. (n.s.) Chanc. 608; 9 Hare, 6S. A creditor, who had brought an action against the executor of a debtor, received notice of a decree for the administration of his estates. After this notice, and before any application was made to stay his pro- ceedings, he went on with the action, and obtained judgment : — Held, that he was entitled to the costs of his proceedings after notice of the decree. Bear V. Smith, 21 Law J, Rep. (n.s.) Chanc. 176;- SDe Gex & S. 92. Where a decree has been made in a legatees' suit for administration of the testator's estate, it is an order of course to stay proceedings in a creditors' suit for the administration of the same estate, which suit had been set down for hearing after notice of the decree in the former suit. Odder v. Colder and Imcos V. Colder, 22 Law J. Rep. (n.s.) Chanc. 1S4; 9 Hare, 276. Where two suits were instituted in different courts for the same purpose, and decrees obtained in both suits, one Vice Chancellor refused to interfere to stay proceedings in the suit instituted in the court of another Vice Chancellor. Scotto v. Stone, 22 Law J. Rep. (n.s.) Chanc. 911. A suit will not be stayed upon an interlocutory application by a defendant paying into court all that a plaintiff claims by his bill, and leaving a portion of the claim to be adjudicated upon in a cross suit. The defendant in the first suit mvist wholly satisfy the claims of the plaintiff. Orton v. Bainbrigge and Bainbrigge v. Orton, 22 Law J. Rep. (n.s.) Chanc. 979. When an order, under a summons to administer an estate, will effect all that can be directed by a decree in a prior suit instituted by bill or claim for 590 PRACTICE, IN EQUITY. the administration of the same estate, the Court will, on motion, stay the proceedings in the prior suit on payment of the plaintiff's costs. Ritchie v. Bumherstone, 22 Law J. Rep. (n.s.) Chanc. 1006. (X) Supplemental Statement. A supplemental statement cannot be filed under the 15 & 16 Vict. c. 86. s. 53. after a decree has been made; nor can it be used before decree for the purpose of bringing forward new parties ; in such a case a supplemental bill is necessary. ComercdZ v. Hall, 23 Law J. Rep. (n.s.) Chanc. 631; 2 Drew. 194. Before decree, a plaintiff cannot, by means of a supplemental statement under the 15 & 16 Vict. c. 86, obtain the statutory supplemental decree under the 52nd section of the same act. Heath v. Leviis, 18 Beav. 527. The defendant, although he has the conduct of the cause, is not therefore enabled, under the 53rd section of the 15 & 16 Vict. c. 86. and the 44th General Order of the 7th of August 1852, to file a statement of additional facts or circumstances occur- ring after the institution of the suit, to be annexed to the bill. Lee v. Lee, 9 Hare, App. xci. (Y) Settino down and hearing Cause. The Court will, under circumstances, dispense with the usual certificate of counsel, that a cause is proper to be heard as a short cause. Ha/rgraves v. White, 22 Law J. Rep. (s.s.) Chanc. 640. The minutes of a decree having been agreed upon, the Court ordered the cause to be set down for hear- ing, notwithstanding that the record and writ clerk had refused his certificate on the ground that there were interrogatories unanswered on the file. hUtan V. Ehton, 24 Law J. Rep. (n.s.) Chanc. 408. (Z) Interlooutoky Applications. The Court will not give its decision upon im- portant questions of law upon interlocutory applica- tion. Bates V. Brothers, 23 Law J. Rep. (n.b.) Chanc. 922. The 55th section of the 15 & 16 Vict. c. 86. is applicable only to cases in which, for the protection of property or other like cause, it is necessary to ap- ply to the Court for a sale, and it was not intended to enable parties in a contested suit to obtain, upon an interlocutory application before the hearing, a decision upon the questions in contest. Prince v. Cooper, 16 Beav. 546. (AA) Assistance of Common Law Judge. A pplication for the assistance in equity of a com- mon law Judge under the 14 & 15 Vict. c. 83. is to be made through the Lord Chancellor. Hay v. Willoughhy, 22 Law J. Rep. (n.s.) Chanc. 10; 9 Hare, App. xxx. (BB) Orders and Decrees. (a) In general. The dividends of a sum of stock were ordered, upon petition, to be paid to A. for her life, and after her decease to B. for her life; but an order for the transfer of the fund, after the death of the survivor of them, was refused. The dividends of a small sum of stock, arising from the purchase-money of real estate taken by a railway company, were ordered to be paid to a party claiming under a will, upon pro- duction of the probate copy, with an affidavit thut it had been examined and was correct. In reLowndes's Trust, 20 Law J. Rep. (n.s.) Chanc. 422. Applications to discharge orders obtained as of course at the Rolls should be made to the Court to which the cause is attached. Cooper v. Knox, 21 Law J. Rep. (n.s.) Chanc. 383. Where errors in a decree are obvious, the Court will rectify them, even after it is enrolled. Pearon V. Desbrisay, 21 Law J. Rep. (n.s.) Chanc. 511. In directing accounts to be taken under the Masters in Chancery Abolition Act, the form of the order under the old practice referring it to the Mas- ter to take the accounts, is inapplicable, and the accounts are to be directed to be taken in a general form; In re Catling, 22 Law J. Rep. (n.s.) Chanc. 9; 9 Hare, App. vii. If defendant makes default at the hearing, the plaintiff will be only entitled to such decree as the Court considers him entitled to on hearing the pleadings and evidence. Hakewell v. Webber, 22 Law J. Rep. (n.s.) Chanc. 96; 9 Hare, 541. A female ward of court, before the passing of the statute 15 & 16 Vict. c. 86, married without the leave of the Court. She was the plaintiff in a suit at this time, and upon her marriage the suit was revived against her husband, and, under an order of the Court, a settlement was made on her and her issue, by which her whole property was vested in trustees. Upon an application, on behalf of the plaintifl', under the S2nd section of the statute, Held, that this was a change or transmission of in- terest within the spirit of the section, so as to autho. rize the Court to make an order against the trustees under that section to the effect of the usual supple- mental decree. Atkinson v. ParJcer, 22 Law J. Rep. (n.s.) Chanc. 20; 2 De Gex, M. & G. 221. Under a decree dire(!ting an inquiry to ascertain the nephews and nieces of a testator, nephews and nieces of the half blood will be included with those of the whole blood. Decrees are to be construed according to the general or ordinary meaning of the words used in them. Grieves v. Ha/wley, 22 Law J, Rep. (n.s.) Chanc. 625; 10 Hare, 63. Where an order has been made on motion and affidavit of service in the absence of parties, the Court will, on proper application, give the absent party leave to move to discharge the order. Mapp V. EkocJe, 22 Law J. Rep. (n.s.) Chanc. 707. A lease tor twenty-one years was granted to two partners jointly, and all the covenants were joint, and not joint and several. One of the lessees died during the term. The rent was paid up to his death; but it was alleged by the lessors that the estate of the deceased lessee was liable for any breaches of covenant which might talie place during the term, and that the executors ought to retain a sufficient portion of the estate to answer such liability. Upon a bill filed praying a declaration that all liability of the deceased lessee in respect of the lease had ceased at his death, it was held, that the Court had no power, under the 15 & 16 Vict, c. 86. 8. 50, to make such a declaratory decree. Jackson v. Turnley, 22 Law J. Rep. (n.s.) Chanc. 949; 1 Drew. 617. Semhle—thm. the Court will not, under the 15 & 1 6 Vict. t. 86, determine a mere question of law PRACTICE, IN EQUITY, 591 unnecessary to be decided previously to the question of equity, -for the mere purpose of making a declara- tory decree. The Trustees of the Birkenhead Docks V. the Birkenhead Dock Co., Laird amd another, 23 Law J. Rep. (n.s.) Chanc 457; 4 De Gex, M. & G. 732. The time within which a decree or order of Chan- cery may be varied on rehearing, has never been de- fined. The practice has been to allow a party to take his chance of success under a decree before the Master, and if unsuccessful to obtain a re-hearing of the decree. A decree was allowed to be reheard eleven and a half yearslafler it had been pronounced, and notwithstanding it had been acted upon during that period by sales, &c. Morgan v. Morgan, 14 Beav. 72. An order was made on petition and by consent,^ Held, that it could only be varied by a proceeding in the nature of one to correct the agreement on the ground of fraud or suppression of facts. Two solicitors, A & B, dissolved partnership, and it was agreed that B should be entitled to half the profits of a suit instituted by them. After some time an order was made by consent of both for the taxation of the costs down to the date. Some of the costs had, unknown to B, been already taxed and re- ceived by A. Held, under the circumstances, that the order comprised all such costs, and the previous costs having been omitted in the Master's certificate, the Court, upon a petition to review the taxation, referred the matter back to the Master. Greenwood V. Chwchill, 14 Beav. 160. Form of decree in an information without a relator, where a defendant is liable to pay the costs of a co-defendant. Attomei/ General v. the Corpora- tion of Chester, 1 4 Beav. 338. Rule of practice as to varying the minutes of decrees. The registrar must first complete the minutes, and any party dissatisfied may then give notice of motion, specifying the subject of complaint. Prince v. Soward, 14 Beav. 208. Form of order, by consent, for hearing a cause upon affidavits. Sparrow v. the Oxford, Worcester cmd Woherhampton Sail. Co., 9 Hare, 448. Order providing for a contingent annuity for the life of a future wife of the son of the testator. Aaron V. Aaron, 9 Hare, 821. Mode in which the directions of the Court are obtained on the question of what parties are to be served with the order or decree, and as to which of the parties service may be dispensed with, De Balinhard v. Bulloch, 9 Hare, App. xiii. Decree for the appointment of new trustees and conveyance of the trust estate in a suit by some cestwis que trust against the devisees of the last sur- vivor of the former trustees, and a direction to serve the other cestuis que trust with notice of the decree. Jones v. James, 9 Hare, App, Ixxx, Prospective order for the sale from time to time of so much of the capital of a fund in court as would be sufficient with the income to pay an annuity which the income alone was insufficient to pay. Lambie v, Lambie, 9 Hare, App. Ixxxiv. Prospective order enabling parties to pay money from time to time to the credit of the cause, obviat- ing the necessity of a repetition of the orders for the same purpose. . Hutchinson v. Sutchinson, 9 Hare, App. Ixxxiv. A creditors' suit was instituted in 1803 and in 1806 the usual decree was made and a sum was paid into court. The suit became defective in 1807 by the death of the personal representative of the debtor, and the decree was not prosecuted. In 1863 the representatives of the plaintiff (having revived the suit against the administrator de bonis non of the debtor) petitioned for the payment of his debt out of the money in court; the Court gave leave to pro- secute the decree as to the debts. Foster v. M'Kenzie, 17 Beav. 414. Case in which the Court refused to make a de- claration as to the interests of parties who might be entitled in reversion. Greenwood v. Sutherland^ 10 Hare, App. xii. Case in which the Court made a declaratory decree, under section SO. of 15 & 16 Vict. c. 86. Fletcher v, Rogers, 10 Hare, App, xiii. , The Court refused to make a declaratory decree on a special case during the lifetime of the tenant for life, with regard to the interests of parties entitled in reversion, Qa/iiick v, Zawson, 10 Hare, App. xiv. Case of a decree for the purpose of carrying into effect an arrangement as to a part of the estate of a testator without administering the estate or executing the trusts of the will generally. Prentice t. Prentice, 10 Hare, App. xxii. A memorandum of service of notice of the decree upon infants, and out of the jurisdiction, ordered to be entered. Chalmers v. Laurie, 10 Hare, App. xxvii. Where 300A, part of, a fund in court, was to be settled by the Court, the petition for the settlement was referred to chambers, and after consideration, the trusts were inserted in the order instead of the settlement being referred to the conveyancing counsel. Chan^erlaia v. Cha/mberlain, 1 Sm, & G, App, xxviii. A notice to draw up an order served one day for the next is regular. In re Christmas, 19 Beav. 519. Costs are not given on granting the four-day order. Ibid. Where there was error apparent in the decree, and the clerk's certificate, by directing payment out of personal estate instead of apportionment between real and personal estate, the Court altered and cor- rected the decree and certificate without a rehearing, notwithstanding the IS & 16 Vict. c. 80. a. 34. and the 51st of the Orders of the 16th of November 1852. Cradock v. Owen, 2 Sm. & G. 241. (5) Order to' reiiive. An order and decree of revivor and supplement by a plaintiif against a co- plaintiff' in a suit commenced by claim, is not within the Chancery Procedure Amendment Act (15 & 16 Vict. c. 86). A printed special claim of revivor and supplement must be filed. Yate v. Lighthead, 22 Law J. Rep. (n.s.) Chanc. 9; 9 Hare, App. li; nom. Tate v. Leithead. An order and decree of revivor and supplement in a suit, instituted by claim, is within the 15 & 16 Vict. u. 86. s. 52. (Chancery Procedure Amendment Act). Martin v. Hadlow,' 22 Law J. Rep. (n.s.) Chanc. 9; 9 Hare, App. lii. Where a suit had become abated, the Court made an order to revive at the instance of a creditor, whose debt had been reported due, and the report had been 592 PRACTICE, IN EQUITY. confirmed. Lowes v. Lowes and Lowes v. Ives, 22 Law J. Rep. (n.s.) Chanc. 179; 2 De Gex, M. & G.784. It is an order of course to revive a suit against an oiHcial assignee, whose predecessor, a defendant, had died without putting in his answer. Gordon v. Jesson, 22 Law J. Rep. (n.s.) Chanc. 328; 16 Beav. 440. In making an order, under the 15 & 16 Vict. V. 86. B. 52, to revive a suit against the executors of a deceased defendant, the Court will not order them to admit assets, or in default direct an account of their testator*8 estate to be taken. The Dean and Chapter of Ely v. Edwards, 22 Law J. Rep. (n.s.) Chanc. 629. The plaintiff in a foreclosure suit having after decree assigned his interest, the assignee must pay the costs of an order to revive under the IS & 16 Vict. c. 86. s. 52. James v. Earding, 24 Law J. Rep. (n.s.) Chanc. 749. To a bill filed in 1842, a demurrer was put in, which was allowed, but leave was given to amend. The demurring defendant died. The bill was after- wards amended, and no further steps were taken for ten years, when an order to revive was obtained in August 1854 against the demurring defendant's representatives, who entered an appearance, and after six months moved to discharge the order to revive : — Held, that the order allowing the demurrer did not have the effect of putting the original bill out of court, as leave was given to amend; and that the defendant not having moved to discharge the order to revive within the twelve days allowed by the new practice, the present motion could not be main- tained. Deelcs >. Stanhope, 24 Law J. Rep. (n.s.) Chanc. 580. On the death of one of several co-plaintiffs it was ordered that the survivors should revive within a limited time, or that the bill should be dismissed, notwithstanding there was no legal personal repre- sentative, it being their duty to obtain administration. Saner v. Deaven, 16 Beav. 30. The heir-at-law being made a defendant to a claim filed by a simple contract creditor of a testator died, having by his will devised the estate sought to be made assets, to his son, upon trust fbr sale, and upon further trusts out of the proceeds thereof to pay a legacy to his executors, — Held, on a motion to revive the suit against the devisee and executor of the heir- at-law, that this was a transmission of interest within the 52nd section of the 15 & 16 Vict. c. 86, but that the order, being ex parte, is liable to be dis- charged. Lowe v. Watson, 1 Sm. & G. 1 23. The order to revive under the 62nd section of the 15 & 16 Vict. c. 86. is of course, but where any- thing beyond the order to revive is required there must be a special application to the Court. Goodall y. Skerratt, 1 Sm. & G. App. vii. Pending an account directed by the decree, the accounting party died. An order wiis made on motion to revive against his executor, and that he might either admit assets or account for his testator's estate. Cartviright v. Shepheard, 20 Beav. 122. A suit having been instituted by A and B, his mortgagee, as co-plaiutifl's, B. died before decree. It was ordered, on motion, that A might carry on the proceedings against B's executors and devisees. JSall V. Clive, 20 Beav. 575. After a report in favour of the title in a specific performance suit, the defendant died. Upon a motion by his executors and devisees in trust, the Court ordered that if the plaintiff did not revive within six weeks, the bill should stand dismissed. Norton v. While, 2 De Gex, M. & G. 678. (c) Supplemental Order. The Court, knowing the facts of a cause recently heard, will make an order that an infant born pending the suit should be bound by the decree, though it was made in her absence, as a party to the suit. Jebh V. TugweU, 24 Law J. Rep. (N.s.) Chanc. 670 ; 20 Beav. 461. Before decree a supplemental order may be ob- tained under sect. 52. of 15 & 16 Vict: c. 86, against an infant who has been bom since the filing of the bill, and is a necessary party to the suit. Pichford V. Brown, 1 Kay & J. 643. Order in the nature of a supplemental decree for a creditor who had proved his debt, to carry on a cre- ditors' suit where the original plaintiff had become bankrupt. English v. Saymam, 9 Hare, App. Ixxxviii. Order made under the 52nd section of the act, 15 & 16 Viet. c. 86, for the prosecution of a suit against the assignees of a defendant became bank- rupt after appearance, but before answer, with liberty for the assignees to answer if they should be so ad- vised. Nash v. Miller, i De Gex, M. & G. 841. The birth of one of a class entitled as such after the institution of a suit, is within the 52nd section of the Chancery Improvement Act, and justifies an order for the usual supplemental decree, l^ullerton V. Martin, 1 Drew. 238. (CC) Issue and Case sent to I4AW. At the heari'ng of a foreclosure claim an issue was directed as to a question of notice, which issue was afterwards abandoned by the defendant : — Held, that before the claim could come on again for hearing, an order must be made on motion, that the issue should be taken pro confesso. Sartland v. Damcox, 24 Law J. Rep. (n.s.) Chanc. 449 ; 5 DeGex & S. 561. An issue was directed to a court of law to ascertain whether the right to certain hereditaments was, on a particular day, vested in the plaintiils or in the defendant. The Judge directed the jury, that if they could not make up their minds, then, inasmuch as the burthen of proof was on the plaintiffs, they must find for the defendant; the jury, in accordance with this direction, found for the defendant. Upon peti- tion for a new trial, it was held, that this verdict could not be taken as expressing the opinion of the jury that the right was vested in the defendant; that this Court was not at liberty to examine the evidence before the jury, in order to decide the ques- tion for itself; that the 79th section of the Lands Clauses Consolidation Act was intended only as a direction to the Court of Chancery how to act, when unable to decide who was entitled to money deposited by a company, and the Judge at law had properly omitted to direct the jury to have regard to this section ; that the above verdict was not such as this Court could act upon, and a new trial was directed by means of two issues, one to try the right, and the other the possession, each party being made respec- tively plaintiffs in the separate issues. The Freemen and StaUvngers of Sunderland v. the Bishop of PRACTICE, IN EQUITY. 593 Bmham, ,22 Law J. Rep. (K.s.) Chanc. 145; 1 Drew. 184. Practice as to praying a talts upon the trial of an issue directed by the Court of Chancery. Ellis v. Bowman, 13 Beav. 318. Except in cases of difficulty this Court will itself determine questions of construction in the first in- stance without seeking the assistance of courts of law. Wilson V. Eden, 14 Beav. 317. Upon a question whether a close had been com- prised in a deed of enfranchisement the Court re- tained the bill, with liberty for the lord to bring an action upon admissions to be made by the defen- dant. On the first trial the jury found for the lord, but on a new trial being directed the second jury found adversely to him, and the Court of law refused to grant a second new trial. It did not appear that there had been unfairness, surprise, casualty, or mis- carriage, or that any further evidence of importance had been since discovered : — Held, that assuming it to be competent to the Court to direct an issue or a fresh action in which the result of the former should not be set up, sufficient grounds did not exist for taking either of the courses, and that the bill must be dismissed. Aglionby v. James, 4 De Gex & S. 7. QucBre — Whether it is competent to the Court to direct such a new investigation in the case of an action. Ibid. In a suit to impeach the validity of a will, the bill was retained for a year, with liberty for the plaintiff to bring an action of ejectment. An action was tried and a verdict given for the defendant. On the plain- tiff's petition stating that after the time for obtaining a rule for a new trial had elapsed the plaintiff had discovered new and material evidence, and upon his paying the defendant's costs at law and of the appli- cation the bill was retained for six months longer, and the defendant put upon the same terms with respect to a second action as he was with respect to the former. Muddv.Suckermore, i DeGex &S. 13. A question of general law arising out of circum- stances which are likely to occur in other cases, and the decision of which might affect the rights of other persons, is a case in which this Court may properly seek the opinion of a Court of law. The ManchesUr, Sheffield and Lincolnshire Eailway Go. v. the Great Norihem Rail. Co., 9 Hare, 284. Terms imposed on the plaintiff in an issue both with regard to the costs and to the examination de iene esse of an aged witness, where the plaintiff had failed in trying the issue at the time directed by the Court. Seeve v. Hodson, 10 Hare, App. xxiv. The Court of Chancery is not exceeding its func- tions in deciding a purely legal question arising in a suit before it either with or without legal assistance, but ought to decide such a question where the con- troversy and material facts are plain. The Shrews- hwry and Birminghatm Rail. Co. v. th£ Stour Valley Rail. Co., 2 De Gex, M. & G. 866. This Court will not send a question to be tried by a jury, unless it entertains serious doubt on the matter. Gray v. Haig, 20 Beav. 219. The Court will not send to be tried by a jury a question which is supported by competent evidence, and which, if untrue, could have been disproved by evidence in the possession of one party who has taken means to prevent its being made available for the determination of the question by the Court. Ibid. Djobst, 1850—1855. A testator, by his will and three codicils, the last of which was dated in 1851, devised and bequeathed all his real and personal estate in favour of his eldest son and heir, subject to portions for the testator's younger children, and appointed his eldest son and another person executors. By the fourth codicil, dated in April 1853, he substituted another person as executor in the place of his son. And by a will, dated in May 1853, he altered the dis- position of his property, modifying considerably the benefit formerly given to his eldest son, and giving his younger children interests in remainder. At the suit of the younger children against the heir an issue was directed by the Palatine Court of Lan- caster to try the validity of the will of 1853. There- upon the eldest son and heir filed his bill in the High Court of Chancery to set aside the will of 1853, and also the codicil of that year, and to establish the' preceding will and codicils. Upon an interlocutory- motion in this suit, before the issue in the former suit had come on for trial, another issue was directed to try the validity both of the will and the codicil of 1853. Sopwood v. the Ea/rl of Se^'ly, 1 Kay & J. 265. It is not sufficient reason to change the venue of such an issue, that one of the parties interested, and whose conduct is impeached, is lord lieutenant of the county where the action is to he tried. Ibid. Heir-at-law defendant in a suit to establish a will, disputing the will on the ground of insanity, does not, as of course, lose his costs of the trial of an issue devisavitvel non, although he has gone into evidence' to prove insanity, and failed; but the question of costs is in the discretion of the Court : Obiter. Roierts v. Kerslake, 1 Kay & J. 751. Circumstances under which the heir in such a case will lose his right to costs, both at law and in equity. Ibid. (DD) References. (a) Generally, and Proceedings. A motion under the 19th section of the 13 & 14 Vict. c. 35. for a reference to the Master to take an account of the debts of a deceased person must be made in court. Inre Harrold, 20 Law J. Rep. (n.s.) Chanc. 168. A creditors' suit coming on for further directions, the fund applicable to the payment of the debts being small, a reference back to the Master to apportion it between the creditors was dispensed with, and the apportionment directed to be made by affidavit. Bear v. Smith, 21 Law J. Rep. (n.s.) Chanc. 176; 5 De Gex & S. 92. A bill was filed against trustees, praying that the amount of the trust fund which the trustees " had, or but for their wilful neglect or default might have, received, might be ascertained." At the hearing, the bill was dismissed as against one trustee, and the amount and particulars of the trust fund were directed to be ascertained. Nothing was said about wilful default, nor did the trustee ask that the bill might be dismissed as to wilful default. The Master made his report, which stated certain facts and referred to certain documents, from which it was alleged that it would appear that there had been wilful default. At the hearing upon further directions, a decree was made referring it to the Master to inquire whether the trustee " could with due diligence, and without 4G 594 PRACTICE, IN EQUITY. wilful neglect or default, have received" more than a particular stated fund, but upon appeal it was held, that the direction as to wilful default should be struck out of the decree. Coope v. Carter, 21 Law J. Rep. (N.g.) Chanc. S70 ; 2 De Gex, M. & G. 292. As a general rule, in order to obtain a direction for inquiry as to wilful default against an executor or trustee, the bill must allege a case, pray for it, and one case at least must be proved ; and, semble, that if from admission or proof a suspicion arises whether wilful default has or has not been committed, and it appears likely that further evidence can be obtained, the Court ought to direct an inquiry short of direct- ing wilfiil default, but in such a way as to call the defendant's attention to it, with the view to ground thereon a new order, at a future stage, directing an inquiry as to wilful default. Ibid. Upon a reference to the Master in an administra- tion suit to take an account of debts and legacies, a claim was carried in for a debt due to a builder ; the Master being unable to determine the justice of the demand, an action at law was directed. A petition was now presented that the order directing an action might be discharged, and that the matter might be referred to the Master, with power to call in the assistance of scientific persons: — Held, under the 42nd section of the Masters Abolition Act, that the Court had no right to delegate to the Master the power conferred by that section ; but the order for an action was discharged, and the matter was direct- ed to be heard in chambers, when the Judge could avail himself of the machinery of the 42nd section of the act. Mildmay v. Metkuen, 22 Law J. Rep. (h.s.) Chanc. 297; 1 Drew. 216. A testator left certain property to trustees for the benefit of the defendant, an infant, who from evi- dence appeared to be of weak intellect. The trustees filed a bill to carry the trusts of the will into execu- tion, and moved, under the 16th section of the 15 & 16 Vict. c. 86, for a reference to chambers to inquire into the state of the defendant's mind, the object being to save the expense of a commission of lunacy. The Court, in exercising a discretion given by the 16th section of the act, refused the motion. Adarm V. Smyth, 22 Law J. Rep. (n.s.) Chanc. 968. A private estate act enacted that from time to time certain matters relating to the management of the estate should be inquired into before a Master in Chancery. One of the Vice Chancellors having doubted on his jurisdiction to direct the inquiry before the chief clerk in chambers, this Court held, that to do so was within the spirit, if not within the letter, of the act, and directed the same accordingly. Thomhill V. Thomhill, in re Tliomhill's Estate Act, 22 Law J. Rep. (n.s.) Chanc. 98S. A reference directed to the Master fifteen years since will not be transferred to the Judge at cham- bers, although the Master certifies that he requires assistance to unravel complicated and voluminous accounts. Saward v. M'Dornmll, 23 Law J. Rep. (N.S.) Chanc. 880 ; 19 Beav. 528. A class of children being interested, the Court, in- stead ofdirectingthepreliminary class inquiry, received the affidavit of the parents proving the class, and then allowed the cause to be heard . Bush v. Wat- Utis, 14 Beav. 33. In an administration suit the Court, upon the certificate of counsel, will authorize a lease without a reference back to the Master to settle it. Day v. Croft, 14 Beav. 219. Where, in a suit referred to the Master, it is desired to obtain advantage of the new powers con- ferred upon the Court by the recent statutes, the proper course is to apply for the transfer of the proceedings to the Judge in chambers. The statutes do not give the Court power to authorize the Master to avail himself of their provisions. Morrdl v. Tinkler, 9 Hare, App. 1. Reference to the Master, under section 10. of the 15 & 16 Vict. c. 80, of a cause heard since the first day of Michaelmtis term, 1852. Piddocke v. Smith, 9 Hare, App. Ixxxvii. Inquiries directed by the decree transferred to chambers, upon the Master making a separate report as to part of the matters referred to him, where questions of law arose upon the other matters involved in the reference. Prichard v. Norris, 10 Hare, App. lii. Application to remove into Judge's chambers a reference which had been seventeen years in the Master's office refused, Wedderiurn v. Wedder- iurn, 18 Beav. 465. (5) To Chambers. Cases in which inquiries in chambers may be pro- secuted or made, with or without an order of the Court having been drawn up directing such inquiries. Kelson v. Kelson, 9 Hare, App. Ixxxvi. Practice in chambers and in the Master's offices, with regard to requiring copies of verified accounts. Cannan v. Evans, 1 Hare, App. ix. A .Judge in chambers is not empowered, under , the 26th section of the 15 & 16 Vict. c. 80. to entertain applications with reference to funds paid into court, under the Act for the Relief of Trustees, (10 & 11 Vict. c. 96. and 12 & 13 Vict. c. 74.) such applications must originate in and be founded upon a petition presented to the Court. In re Bodges, i De Gex, M.& G.491. (c) Adjowrnment from Chambers. No declaration of rights can be made upon a cause adjourned from chambers, but the Judge may certify the law. Morgam v. Batchdl, 24 Law J. Rep. (n.s.) Chanc. 135; 19 Beav. 86. On an inquiry directed to be prosecuted in chambers, witnesses, who had been examined before the hearing upon interrogatories, were examined again vivA voce as to the same matters. Rogers v. Mort, 10 Hare, App. liii. Proceeding by inquiries in chambers and by certi- ficate in a case where the consideration of the result of the evidence was adjourned for argument in court. Ibid. [d) Report. At the hearing of a cause on fiirther directions, the Court, if requisite, will, without order, adjourn the cause to chambers, for the purpose of investi- gating, with the assistance of the chief clerk, the correctness of the Master's report, made under the old practice. Savmders v. Walter, 22 Law J. Rep. (U.S.) Chanc. 11; 9 Hare, App. v. The only proper evidence of a purchase under decree, and payment of deposit, is the Master's report, which must be confirmed before a purchaser PRACTICE, IN EQUITY. 595 can apply to the Court to be discharged from his contract. M-Oalloch v. Gregory, 23 Law J. Rep. (N.s.) Chanc. 6i56. Error in a Master's report which had been con- tinued in a decree, whereby sums in Irish currency had been treated as English money, corrected upon petition. Ellis v. Maxwell, 13 Beav. 287. (EE) Exceptions. ifl) Answers. Exceptions for insufficiency were heard before the Court in the first instance, under Sir George Turner's Act (13 & 14 Vict. C.35. s. 27.) ; the costs of those allowed were set off against ihose disallowed. Willis V, Childe, 13 Beav. 454. Where exceptions to an answer for insufficiency are overruled, the practice is to overrule them with costs. Slent v. Wichens, 5 De Gex & S. 384. Exceptions for insufficiency of answer to interroga- tories as to books and papers under the new practice, generally discouraged. Law v. tite London Indis- putable I/ife Policy Co., 10 Hare, App. xx. Whether a company or corporation answering under thtir common seal, is a defendant against whom an order may be made under the 18th section ofthel5 & 16 Vict. c. 86 qucere. Ibid. (J) Reports and Certificates. Whether exceptions will lie to the Master's certi- ficate of undue delay, under the 8th Order of June 18S0 — qucere? The Attorney Qeneral v. the Got- poration of Chester, 14 Beav. 338. A vendor took an exception which contested the validity of his own title: — Held, that it was irregular. Bradley t. Munton, 15 Beav. 460. Exceptions will not lie to a Master's report for not stating "special circumstances." Knott v. Cottee, 16 Beav. 82. (c) Scandal and Impertimnce. Where exceptions for scandal and impertinence had been taken by the defendant to a bill filed for an injunction, but he neglected to set them down for hearing, the plaintiif was allowed to set them down. Coyle V. Alleyne, 20 Law J. Rep. (n.s.) Chanc. 424; 14 Beav. 171. Orders of Court do not take away its general jurisdiction. Ibid. (FF) Sales ahd Purchases under Dieeohok op THE Court. (a) Conduct of Sale. The plaintiff in a cause held entitled to the con- duct of the sale of partnership property, although, according to the contract, if performed without suit, he might not have been entitled to interfere in the sale. Dale v. Ha/milton, 1 Hare, App. vii. Leave will not be given to open the biddings until after the Master's report on the purchase. Love- grove V. Cooper, 22 Law J. Rep. (n.s.) Chanc. 154j 9 Hare, 279. When biddings are opened, the purchaser is en- titled to interest on his deposit at il. per cent. Banks v. Bamhs, 16 Beav. 380. A party opening biddings must deposit the amount of his advance; but he is not required in the first in- stance to pay into court the amount of the original deposit. Upon his neglect to make the required payment, the order to open biddings will be dis- charged with costs, to be paid by him. Ibid. The rule under which the Court permits a stran- ger to intervene for the purpose of opening biddings on a sale by auction before the Master, has no appli- cation to a sale before him by private contract, Mil- liean v. Vanderplanle, 11 Hare, 136. Where the Master has in the presence of the parties approved of a sale by private contract, whether under a special reference, or under the 4th General Order of the 16th July 1861, no stranger can intervene to prevent the confirmation of the re- port, nor will the sale be disturbed by the Court, on the mere ground that a larger price has been offered subsequently, and before such confirmation, unless there be some error or miscarriage in the proceed- ings, or the contract price be grossly inadequate. Ibid. Where there are grounds upon which the Court would refuse to confirm a sale by private contract approved by the Master, the fact that the purchaser has, after the approval of his contract and before the confirmation of the report, entered upon the pro- perty and expended money thereon, or incurred liabilities with respect to it, will not afford any reason for supporting the sale; for such acts before the con- firmation of the report are done at the purchaser's own risk, or in his own wrong; but when all the parties interested in the estate have approved of or acquiesced in the contract, and concurred in and en- couraged such acts of the purchaser, they may then constitute reasons for not disturbing the sale. Ibid. On a sale under a decree the signature of the cer- tificate of the purchase by the Judge in chambers is equivalent to the order nisi to confirm the Master's report under the former practice, and the certificate is liable to be discharged at any time within eight days after such signature. Consequently, an appli- cation to open biddings on the usual terms may be made within eight days after the certificate is signed by the Judge. Bridger v. Penfold, 1 Kay & J. 28. Order made, opening the biddings upon an under- taking to abide by the order of the Court, .as to the expenses of the re-sale, where the advance was only SI. more than the probable expenses of such re-sale. Ibid. (c) Purchasei: A purchaser under the Court, after having ob- tained his conveyance, ought not to appear upon a petition to obtain the purchase-money out of court, and h# will not be allowed his costs of so doing. Barton, v. Latour, 18 Beav. 626, After a certificate of purchase under a sale by the Court has become binding, by the lapse of eight days since the signature thereof by the Judge, the pur- chaser is considered to be so far the absolute owner that he may sell at an advanced price for his own benefit, Dewell v. FuffneU, 1 Kay & J. 324. (d) Conveyancing Counsel. When a deed is required to be executed under the direction of the Court, the deed when engrossed is to be marked by the Registrar, and an affidavit filed that the draft has been settled by one of the con- veyancing counsel of the Court. An order for its 596 PRACTICE, IN EQUITY. execution will then be made. Barvey v. Brook, 22 Law J. Rep. (n.s.) Chanc. 14; 9 Hare, App. xi. Where the Court orders a sale, and before the property is sold an offer is made by private contract, the Court has a discretion under the S6th section of the statute 15 & 16 Vict. c. 86. to dispense with the rule that the abstract of title shall be laid before the conveyancing counsel. Gibson v. WooUard, 2i Law J. Rep. (n.s.) Chanc. 56; 5 De Gex, M. & G. 835. A petition praying for the investment of the pur- chase-money of settled lands taken by a company in the purchase of other lands to be settled to the same uses, must, in the first instance, be referred to chambers. The Court, however, will not, when the petition is in chambers, as a matter of course, refer the title to conveyancing counsel, under the new Chancery Act; but, if satisfied by other means as to it, will approve of it there. In re Jones's Settled Estates, 24 Law .T. Rep. (n.s.) Chanc. 504. The deeds, which are settled by the conveyancing counsel of the court, are those which are made for the reinvestment of the monies of incapacitated per- sons, &c. Deeds for conveyance or transfer of trust property from old to new trustees, &c. are approved by the .Tudge of the branch of the court to which the cause is attached. Blaxlwnd v. Blaxland, 9 Hare, App. Ixviii. (GG) Patj.iext into Court. After a decree in a cause, a motion that the de- fendants might pay into court money which, by their answer, they admitted to be in their hands, was re- fused, with costs. Wright v. LvJces, 20 Law J. Rep. (n.s.) Chanc. 32; 13 Beav. 107, Where a purchaser of property sold under decree is satisfied with the title, the application for the pay- ment of the purchase-money into court is to he made to the Judge at chambers, under the 15 & 16 Vict. c. 80. s. 26. (Masters in Chancery Abolition Act). Davenport v. Davenport, 22 Law J. Rep. (n.s.) Chanc. 11; 9 Hare, App.J. Where the residue of a trust fund under a compo- sition deed has been duly invested by the trustees, and they claim a lien thereon for their costs under the deed, and there is no imputation of misconduct on their part, or of the fund being in danger, the Court will not, on motion by a cret deed miide for their benefit, miglit proceed against the trnstees without a personal representative of the deceased debtor, the author of the trust, where no such representative existed, and the estate was insolvent. Cliaffers v. Seadlam, 9 Hare, App. xlvi. Case in which the executors of a father, who sur- vived and became the sole next-of-kin of his deceased children, may be appointed by the Court, under the 4ith section of the 15 & 16 Vict. c. 86, to represent the estates of the deceased children for the purposes of the suit. Swallow v. Bimis, 9 Hare, App. xlvii. The Court will not under the 44th section of the 1-5 & 16 Vict. c. 86. dispense with the personal re- presentative of a trustee, when such personal repre- sentative has necessarily active duties to perform in the execution of the trust. Fowler v. Bayldon, 9 Hare, App. Ixxviii. The 9th rule of the 42nd section of the 15 & 16 Vict. c. 86. applies, not only to adoiinistration suits, but to all suits where the interest of the cestui que ti'ust is representtd by, and his powers are vested in, the trustee. Ibid. The 44th section of the IS & 16 Vict. c. 86. does not apply to the case where the estate to which it is desired to appoint the representative is the estate being administered by the Court. Silver v. Stein, 1 Drew. 295. A died in a colony and made colonial repre- sentatives, and bequeathed his residue to B. who afterwards died. B's representative received from A's colonial representatives his residue. The repre- sentative of B was also a creditor of A : — Held, that in a creditors' suit, the representative of B could not be compelled to bring the money into court so paid to him by A's colonial representatives. Ibid. One oftwo executors, co-defendants, who was also a residuary legatee, having died insolvent and without any representative, after an order for accounts and inquiries made upon an ordinary claim, — Held, that the suit might be prosecuted under the 15 & 16 Vict. c. 86, in like manner as if a legal personal representative had been served and had appeared. Sogers v. Jones, 1 Sm. & G. 17. Monies found due to the estate of a deceased per- son will not be paid over to the representative ap- pointed under the 15 & 16 Vict. e. 86. 8. 44. but will be carried over to a separate account. Byam V. Sutton, 19 Beav. 646. (WW) Intestment. The Court will not, on the application of a tenant for life, except in special cases, order a fund in court to be invested in any other security but that of consols. Darzviii v. Darwin, 22 Law J. Rep. (n.3.) Chanc. 1007. (XX) Traksfer of Stock. Where Bank stock is transferred to the Ac- countant General with a direction to pay the divi- dends to the tenant for life only, a per-centage off the dividends is deducted, unless otherwise ordered by the Court. Dale v. Hayes, 2 Sm. & G. App. vii. (YY) Income pexdexte Lite. An allowance of income pendeTile lite under the 15 & 16 Vict. c. 86. D. 57. will only be made upon the admission by the executor of assets. Knightv, Kniglit, 16 Beav. 358. A married woman, having a life interest to her separate use in real estate, with her. husband cut timber. A suit was instituted in one branch of the court to carry into effect the trusts of the settlement. In another branch a suit was in existence, in which a claina was made on the married woman's separate use in respect of the timber cut. Held, that in the first suit the Court could not decide the question as to the right to cut the timber; but the married woman securing the value of the timber cut, was allowed her income pending the suit. Stacey v. Sowthey, 1 Drew. 400. (ZZ) Undertakikg. A railway company, defendants in a cause, en- tered into an agreement or undertaking with the plaintiff not to do any act contrary to a then pending notice of motion, unless under the au- thority of parliament, until the hearing of the cause, or the further order of the Court. The company subsequently obtained an act of par- liament, which did not by positive enactment, nor, in the opinion of the Court, by necessary con- clusion from its provisions, take the case complained of by the plaintiff out of the reach of the undertaking, although it did not prohibit the act, and might have contemplated the act consistently with the provisions of the act of parliament: — Held, on motion by the plaintiff, that the undertaking was binding on the company until the further order of the Court: but that the company, on shewing merits, might have moved to discharge it ; and the Court, deeming such merits to have been shewn by the answer, ac- cordingly discharged the undertaking. Stevens v. &e South Devon Railway Co., 21 Law J. Rep. (n.s.) Chanc. 816; 9 Hare, 313. Undertaking, by way of agreement, to answer a possible liability, or to observe the order of the Court, entered into by a stranger to the cause, by signing the registrar's book. Onrney v. Behrend, 9 Hare, App. Ixxxix. Where money is ordered to be paid to one on his undertaking to satisfy another, the Court will enforce the undertaking. A sum was ordered to be paid to A B for part maintenance of an infant, on his under- taking to pay the infant's schoolmaster's bill. A B having shewn a disposition not so to apply the money, the Court stayed the payment, and ulti- mately, on the application of the schoolmaster, ordered payment to him out of the fund. Sirdejield V. Thackery, 18 Beav. 588. The defendants, a railway company, having en- tered into an undertaking, to leave certain lands in their then state until the further order of the Court, and the plaintiff having undertaken to bring an action at the then next assizes, the motion of the plaintiff for an injunction was ordered to stand over. The action was brought, and a special jury obtained, but on the jury being called at the trial, ten special jurymen alone attended. Each party declined to pray a tales, and the cause became a remanet. Upon a motion by the defendants that the action should be taken as tried, with a verdict for the de- fendants, and that the defendants should be dis- charged from their undertaking, — Held, that it is not a course of the Court to order that an action should PRACTICE, IN EQUITY— IN CRIMINAL CASES. 605 be taken as tried, and it being the fault not of the filaintiff alone that the action was not tried, the Court declined to discharge the defendants from their undertaking, but peremptorily ordered the plaintiff to try the action at the then next assizes. Bradbwry v. Mcmchester, Sheffield and Lincohishire Sail. Co., 5 De Gex & Sm. 624. (AAA) Copies of Pleadinqs. The clerk of records and writs is bound to furnish certified copies of Chancery pleadings on application under the 14th section of the 14 & IS Vict. c. 99. Seeve v. Sodson, 22 Law J. Rep. (n.s.) Chanc. 696; 10 Hare, App. xix. (BBB) Impektisenoe. On the hearing of a petition for the disposition of a sum of money paid into court under the Lands Clauses Act, an objection was made that an affidavit was oppressively long. The Court considered the question, and, being of opinion that it was so, made a direction to the taxing Master in the terms of the 122nd Order of May 8, 1845. In re Skidmuyre's Estate, 24 Law .T. Rep. (k.b.) Chanc. 711. Repetitions in a fourth examination of items con- tained in former examinations held impertinent; the principle applicable being the same as if the repetition had been contained in the same document. Allfrey v. Allfrey, 14 Beav. 235. It is no defence to an application to strike out impertinent matter to say that it will make the pleading inconsistent, unmeaning or insufficient. Ibid. The repetition of a material statement is imperti- nent. Ibid. (CCC) Irreqclaritt. By inadvertence an order referring an answer upon exceptions was directed to Master K, as the Master in rotation, the cause being already in the possession of Master B. The exceptions were argued, on both sides, before Master B, acting for Master K, who, after overruling an objection to the regularity of the order, allowed the exceptions, and gave further time to answer: — Held, upon motion to discharge the order, that the irregularity had been waived by the defendant arguing the exceptions. Lloyd V. Peers, 20 Law J. Rep. (n.s.) Chanc. 87. On taking accounts in an administration suit, it was found that the record had been defective from the beginning- A defendant without notice to the plaintiff filed a bill to remedy the defect. The plaintiff moved to dismiss the bill for irregularity; but the Court, in affirmance of a decision" of the Court below, refused the motion, with costs. Lee v. Lee and Lee v. Lys, 22 Law J. Rep. (n.s) Chanc. 862; 4 De Gex, M. & G. 219 : affirming 22 Law J. Rep. (n.s.) Chanc. 638; 10 Hare, App. Ixxii. Whether a plaintiff after he has been deprived of the conduct of a cause can apply to the Court in such a way as that, if successful, it would have the effect of bringing back to himself the conduct of the cause — qucere. Ibid. (DDD) Attachment. An attachment for want of answer is issuable against a feme covert who has obtained an order to answer separately from her husband. Thieknesse v. Acton, 21 Law J. Rep. (n.s.) Chanc. 215. By an order entitled in a cause and in the matter of the Trustee Act, A was ordered to transfer a sum of money into court. The affidavit of service of this order on A was entitled in the cause only. A was committed for contempt for refusing to obey the order. The writ of attachment was discharged for irregularity, on the ground of the difference between the title of the order and the title of the affidavit. Mackenzie v. Mackenzie, 21 Law J. Rep. (n.s.) Chanc. 386; 5 De Gex & Sm. 338. An attachment for want of an answer, returnable immediately, against a defendant resident out of the jurisdiction, is irregular. Zulueta v. Yinent, 21 Law J. Rep. (n.s.) Chanc. 414j 15 Beav. 273. A defendant, having been served with an un- stamped copy of a bill and not having appeared, was attached, and, after remaining some time in custody, was released, on giving a bail bond to the sheriff. On motion to discharge the order for attach- ment, and for delivery up of the bail bond to be cancelled, the Court gave the defendant the option of appearing and having the order for attachment discharged, with costs thereof and of the bail bond, and an inquiry at chambers as to compensation, or of not appearing and having the order for attachment simply discharged, with costs. Mutton v. Smith, 24 Law J. Rep. (n.s.) Chanc. 147. The Lord Chancellor has no jurisdiction under the 17th rule of the 16th section of the act 1 Will. 4. c. 36. to discharge a party in custody for the non- payment of a sum of money ordered to be paid in a suit. Dew V. Clark, 3 Mac. & G. 357. A sequestration having been only partially suc- cessful, a motion was made to revive an attachment : Held, that .the order could not be made ex parte. Knott V. Coatee, 19 Beav. 470. (EEE) Sequestration. The petition of a defendant had been dismissed with costs to the infant plaintiffs. A subpcena and fi. fa. was issued, but the defendant was in Paris, and no effects could be taken. A commission of sequestration was then issued, under which the sequestrators obtained monies which, by orders of Court, were paid in the cause to " The Sequestration Account, " and were invested in consols. Upon the petition of the infant plaintiffs the stock standing to " The Sequestration Account" was ordered to stand charged with payment to them of the taxed costs and interest from the date of the Master^s certificate, unless the defendant should within one month shew cause to the contrary. Service on the defendant's solicitor in England to be good service. Westhy v. ~" >, 5 De Gex & S. 516. PRACTICE, IN CRIMINAL CASES. A motion for a new trial cannot be made on be- half of the only defendant in a criminal case, upon whom sentence of transportation has been passed at the assizes, unless the defendant is present in court. Regina v. Caudwell, 21 Law J. Rep. (n.s.) M.C. 48. Semble — That where there are several defendants, all need not be present in court in order to entitle one or more of such defendants to move for a new trial. Ibid. 606 PRE-EMPTION— PRINCIPAL AND AGENT. Three prisoners were indicted for murder, and witnesses were called for the defence of one only : — Held, that the counsel for the prosecution was en- titled to reply generally on the whole case, and was not to be limited in his reply to the case as against the one prisoner for whom the witnesses were called, although the evidence adduced for the one prisoner did not at all affect the case as it respected the other two prisoners; but if the evidence against two pri- soners affect them with different offences, such as larceny and receiving, and one call witnesses, there is no right of reply against both. Hegma v. BIokTc- ium, 3 Car. & K. 330. PRE-EMPTION. A right of pre-emption held limited to the life of the owner of the property. Semhle — That a right of pre-emption " at all times thereafter" cannot be enforced after the death of the owner of the property. Stocker\. Dean, 16 Beav. 161. PRESCRIPTION. [See titles Cdstom and Pbesobipton — Ease- ment — Light.] PRESUMPTION. Almost anything will be presumed in favour of a grant made fairly, and under good advice on the part of the grantors, and acted upon for upwards of thirty years. Delarue v. Chit/i'ch, 20 Law J. Rep. (n.s.') Chanc. 183. After a lapse of twenty-eight years, a consent to marriage so as to avoid a forfeiture, was, under the circumstances, presumed. In re Birch, 17 Beav, 358. A legacy wms given conditionally on a marriage with the consent of trustees. The marriage took place in 182.5, and the party entitled in default never raised any question as to the consent having been given until 1852, after the death of the trustees and of A B ; — Held, that everything was to be presumed in favour of the consent, and though there was no distinct proof of consent, yet it was presumed from the conduct of the trustees subsequent to the mar- riage. Ibid. The presumption of death, after seven years' ab- sence, does not arise where the probability of intel- ligence is rebutted by circumstances. Bowden v. Henderson, 2 Sm. & G. 360. Where the date of a deed was subsequent by a few days to that of a will, and the testator's heiress had treated the property as having passed by the will, but was not shewn to have been aware of her rights, and forty years had elapsed, but without any ad- verse possession: — Held, that the Court would not presume a binding contract for purchase to have been entered into by the testator before the date of the will. Cathraw v. Bade, 4 De Gex & S. 527. A left this country on the 9th of November 1829. Onthel6th of June 1831 his brother-in-law received a letter from America on behalf of A, describing him as having changed his name to B. Three months after this A's wife sent a letter to him, ad- dressed to him as B, by the hand of a friend who could not find him. He was not heard of any more, and it did not appear that any other inquiries were made by his family : — Held, that on this state of facts there was not sufficient information to ground presumption of death, still less of the particular period of death. In re Creed, 1 Drew. 235. PRINCIPAL AND AGENT. (A) Of the Agency in general. (B) Rights and Liabilities of the Prin- cipal. (a) In general, (b) On Contracts of the Agent. (C) Rights, Duties and Liabilities of the Agent. (a) As regards his Principal, in general. (b) Right to Commission. (c) Duty to Accovmt. (d) As regards third Persons. (D) Power and Authority of the Agent. (A) Op the Agenct in general. [Ratification of the agency, see The Eastern Conimr ties Bail. Co. v. Broom, and Boe v. the Birkenhead, &c. Bail. Co., title Company (G) {I), ante, p. 159.] A declaration stated, that, in consideration that the plaintiff would employ the defendant as a coal- factor to sell certain coals on account of the plaintiff, the defendant promised the plaintiff that he would not sell the said coals otherwise than for ready mon£y, and alleged for breat^h, that the defendant sold the coals otherwise than for ready money, to wit, at two months' credit : — Held, that the action was not sus- tained by the production of the following letter of instructions given by the plaintiff to the defendant, and by proof of a sale of the coals at 15s. 6d. per ton, at a credit of two months : — " Please sell for me 250 tons of anthracite coal, at such price as will realize me not less than 15s. per ton, net cash, leas Tour commission for such sale." Boden v. French, 20 Law J. Rep. (n.s.) C.P. 143; 10 Com. B. Rep. 886. (B) Rights and Liabilities of the Principal. (a) In general. [See Thompson v. Bell, title Bankers, ante, p. 63.] If a person describes himself in a written contract as an agent for a principal not named, he is liable upon the contract, if proved to be the real principal. But where a charter-party contained a clause, "that this charter-party being concluded by C T J (the defendant) on behalf of another party resident abroad, it is agreed that all liability of C T J ceases as soon as he has shipped the cargo," evidence that the defendant had bought and paid for the goods in his own name, and that at the port of destination they had been claimed by and delivered to a person who produced an unsigned bill of lading, which the captain had delivered to the defendant, was held in- sufficient to render the defendant liable to an action PRINCIPAL AND AGEKT. eoif for the freight. Carr v. Jachson, 21 Law J. Eep. (N.S.) Exch. 137; 7 Exeh. Rep. 382. In an action for goods aold, there was a plea of payment, and it appeared that both the plaintiff and the defendant employed G as factor. G Sold the goods to the defendant, knowing he was the factor. On a balance of accounts, G was indebted to the defendant. The plaintiff, who knew the state of accounts between G and the defendant, petitioned the Court of Bank- ruptcy to make G bankrupt, and alleged in his affi- davit that G owed him a sum of money for goods sold by G, as factor of the plaintiff, to the defendant, and for which he had received payment by means of goods sold by the defendant to G. The plaintiff having afterwards sued the defendant for the price of the goods, — Held, that the statement in the affidavit was not conclusive evidence estopping the plaintiff from denying that the defendant had paid for the goods; the allegation as to payment, so explained, not being an allegation of fact, but of an inference of law drawn by the plaintiff. Morgan v. Ooitchman, 23 Law J. Rep. (n.s.) C.P. 36; 14 Com. B. Rep. 101. Where counsel at a trial does not ask that a cer- tain point should be submitted to the jury, but gets leave to move reserved, he cannot afterwards ask for a new trial, on the ground that that point was not submitted to the jury. Ibid. Where a contract is entered into by an agent in his own name the principal may sue upon it, even though it is in part to be performed by the agent personally. Phel/ps v. Prothero, 2i Law J. Rep. (N.S.) C.P. 225; 16 Com. B. Rep. 370. A, the defendant in an action as alien, in consider- ation of B's withdrawing the record, undertook to pay B certain monies, B undertaking to discharge A from liability to the covenants of the lease, upon his assigning all his interest in the lease : — Held, that the assignment of the lease was not a condition pre- cedent to the discharge; and that, therefore, in an action against B. on the contract, it was not necessary to aver that the defendant had assigned. Ibid. Qiiwre — whether, if the assignment had been a condition precedent, a general averment, under the Common Law Procedure Act, " that the plaintiff had done all things necessary to entitle him to maintain his action," would have been sufficient. Ibid. (6) On Contracts of the Agemjt. Plaintiff, being a widow, but not executrix or ad- ministratrix of herformer husband, was in possession of furniture which had formerly belonged to him. She afterwards married B, whom she supposed to be a single man, and together with him occupied the house in which the furniture was. In order to raise money to pay off a distress for rent, B sold to the defendant the furniture. The plaintiff actively interfered in this transaction, believing herself to be the wife of B. Shortly afterwards B was convicted of bigamy in marrying the plaintiff. The plaintiff then sued the defendant for the value of the furniture : — Held, that she could not recover, as she had no title to the fur- niture ; and that, even if it were her property, she was bound by her concurrence in the sale of it by B to the defendant. WaUer v. DraTceford, 22 Law J. Eep. (N.S.) Q.B. 274 ; 1 E. & B. 749. C & Co., merchants in London, being requested by their correspondents H, W & Co., merchants in America, in their own name, and through the inedivmi of a broker, arranged for the purchase from thedb- fendants M & Co., alsp London merchants,'of a bill of exchange, C & Co. having at the time funds of H, W & Co. in their hands for the purpose. The bill was drawn by the defendants M & Co. on a banker at Paris, in the following form :— ' A cinq jours de date, payez par cette premiere de change, la seconde, &c., dix-neuf mille quatre cents soixante dix-huit francs cinq centimes. Valuer de Messieurs Coates & Co., que passerez." The bill was handed over to C & Co. on one foreign post day, for a price then agreed upon to be paid, according to the custom of merchants in London, on the next foreign post day, and was forwarded to the plaintiffs P P mer- chants at Paris, to whom H, W & Co. were indebted in more than the amount of the bill, to he collected to the credit of H, W & Co. The plaintiffs acknow- ledged the receipt of the bill, and stated that they had placed it to the credit of H, W & Co. The bill was not presented until it became due, when it ■was refused payment by directions of the defendants; C & Co. having failed to pay the price agreed upon. H, W & Co. immediately reimbursed the plaintiffs the amount of the bill and cost of protest, and the defendants were thereupon proceeded against as drawers: Held, tliat the plaintiffs were bond fide holders of the bill for value, and were entitled to maintain the action, though H, W & Co. were really the parties for whose benefit the -action was pro- secuted, C & Co. not acting as agents of H, W & Co. in the purchase of the bill, so as to pledge their credit to the defendants for the price. Powier v. Morris, 22 Law J. Rep. (n.s.) Q,B. 313; 2 E. & B. 89. Where the agent of a wharfinger, whose duty it was to give receipts for goods actually received at the wharf, fraudulently gave a receipt for goods which had not been received, the principal was held not to be responsible, because it was not within the scope of the agent's authority in the course of his employ- ment, to give such a receipt. Confirming Grant v. Norway and Hubbersty v. Ward. Coleman v. Riches, 2i Law J. Eep. (n.s.) C.P. 125; 16 Com, B. Eep. 104. C was in the habit of buying corn, and directing the vendor to deliver it at R's wharf, to be conveyed by E to X ; and E's agent, B, gave receipts for all corn so delivered, and C, on the production of the receipt by the vendor, paid him the price. On one occasion, when C had bought wheat of L, B and L conspired together, and B gave L a receipt for the dehvery of the wheat, though it had not been deli- vered, and L in B's presence gave C the false re- ceipt and received the price of the wheat from him. In an action by C against R, B's principal, for the false representation, — Held, that even if E must be taken to have known that it was the course of business of C to pay the price on the production of B's receipts, he did not contract with C that he should give such receipts, and therefore was not answerable for B's fraud. Ibid. The plaintiffs sold goods to T (an agent of the defendant) in his own name, treating him as principal. The defendant, at a reasonable time after the sale, and not unduly early, bond fide paid T sufficient money to enable him to pay the plaintiffs : — Held, that the defendant was liable to the plaintiffs for the 608 PRINCIPAL AND AGENT. price of the goods. Heald v. Kenworthy, 24 Law J. Kep. (n.s.) Exch. 76; 10 Exch. Eep. 739. A B was authorized by the defendant to make a proposal of sale of some land to the plaintiff, but to be accepted within a week. The plaintiff wrote to A B within that time, accepting the offer, but A B did not communicate the acceptance to the defendant until long after : — Held, that there was a valid con- tract which was not destroyed by the neglect of A B to communicate the acceptance to the defendant. Wright V. Bigg, 15 Beav. S92. (C) EiHHTS, Duties and Liabilities of the Agent. (a) As regards his Principal, [See Jenhins v. Beetham, title Clerot (D).] A broker who had received money for the shippage of goods on account of the owners of the ship, offered to pay it to the captain, who was also managing owner, by a cheque. This the captain declined, preferring that the broker should open a credit for him at a bank in New Brunswick in favour of H, which the broker did. The bank accordingly paid H 250i., for which H gave a bill drawn by him in favour of the bank upon the broker, who accepted and paid it when due. The broker having sued the co-owners for the balance of his account: — Held, that this was a good payment of 250Z. by the broker, and binding the co-owners. Anderson v. Hillies, 21 Law J. Rep. (n.s.) C.P. 150; 12 Com. B. Rep. 499. The plaintiff, being owner of an estate, employed an agent and receiver, who paid into the defendants' bank the rents of the estate, to an account headed with the name of the estate, to distinguish it from his private account. The receiver's private account being overdrawn, he transferred the balance of the estate account to make up the deficiency due upon his private account. Upon a bill filed by the plaintiff, against the bankers, to refund this balance so transferred, it was held, — that, according to the principles of a court of equity, a person who deals with another knowing him to have in his hands, or under his controul, monies belonging to a third person, must not enter into a transaction with him, the effect of which is that a fraud is committed on the third person; and it appearing upon the evi- dence that the bankers were aware that the money was the produce of the rents of the plaintiff's estate, a decree was made against the bankers, for repay- ment of the amount. Bodenham v. SosMns, 21 Law J. Rep. (n.s.) Chanc. 864: affirmed 2 De Gex, M. & G. 903. A bill for an account by a principal against his agent cannot be sustained in equity where the trans- action is a single transaction, and not tainted with fraud, the plaintiff in such case having his remedy by an action at law. Navvlshaw v, Brownrigg, 21 Law J. Rep. (N.s.)Chanc. 57, 908; 1 Sim. N.S. 573; 2 De Gex, M. & G. 441. (b) Right to Commission. An agreement by a factor to sell upon a del credere commission need not be in writing, not being a pro- mise to answer for the debt, default or miscarriage of another person, within the 4th section of the Statute of Frauds. Couturier v. Hastie, 22 Law J. Rep. (n.s.) Exch. 97; 8 Exch. Rep. 40. The declaration alleged a contract by the defen- dants " to employ the plaintiff as their salesman and commission agent, at a salary of 250/. a year, pay- able quarterly on certain specified days; and not to dismiss the plaintiff at any time between any of the said quarterly days of payment without reasonable cause, or otherwise paying to the plaintiff the sum of 62i. 10s., as for the current quarter's salary." The evidence was, that the plaintiff had been employed by the defendants as a commission agent, and had been paid by them at the rate of 62Z. 1 0*. a quarter, "for commission": — Held, that this was not suffi- cient ^er se to support the contract stated in the de- claration. Butterfield v, Marler, 3 Car. & K. 163. A planter in India obtained advances from his agents, who by custom were entitled to a commission on their advances, and on the produce of the sales of the crop. The planter died, and his executors sold the factory, and got in the crops and remitted them to the agents, who sold the latter, and accounted to the executors for the balance, after deducting the amount due to them : — Held, that the executors were entitled to Bl. per cent, (Indian commission) on the gross proceeds of the factory and crop. Matthews v. Bagshaw, 14 Beav. 123. If an agent by his own conduct makes it impos- sible to ascertain the amount of profit realized, he will be disallowed the commission which otherwise, and according to the contract, he would be entitled to claim. Gray v. JHaig, 20 Beav. 219. The plaintiffs appointed the defendant their agent for the sale of spirits, at a commission. The defen- dant had made profits by the sale of the plaintiffs' goods for which he had not given credit ; he had also made profits by selling his own spirits mixed with those of his principals, and he had destroyed books of account pending the litigation. The Court dis- allowed him in taking the accounts 7,000i., the amount of commission which by the contract he would have been entitled to if his conduct had been proper. Ibid. A charge made by an agent for the sale of goods against his principal, for an allowance in respect of warehousemen's salaries, disallowed; no such claim having been made in the accounts for fourteen years. Ibid. The Court deals severely with any irregularities on the part of an agent, and requires him to act strictly in all matters relating to such agency for the benefit of his principal. Ibid. It is imperative upon an agent to preserve correct accounts of all his dealings and transactions, and the loss, and still more the destruction, of such evidence by the agent, falls heavily upon himself. Ibid. (c) Duty to accoiimt. Qwxre — Whether by the law merchant it is the duty of the broker in all cases to furnish his prin- cipal with a correct account of the contracts he has made. Thorn v. Bigland, 22 Law J. Rep. (n.s.) Exch. 243 ; 8 Exch. Rep. 725. The rights of principal and agent to sue in equity for an account between themselves are not correla- tive; the equity of the principal for such an account arising from the trust and confidence reposed in the agent; but secus as to the agent, who does not re- ciprocate any trust and confidence. Padv/ich v. PRINCIPAL AND AGENT. 609 y, 22 Law J. Rep. (n.s.) ■Chanc. 184; 9 Hare, 627. The relation of principal and agent is not alone sufficient to entitle an agent to an account in equity, when it can be determined at law. PadwicTc v. Hurst, 23 Law J. Eep. (N.s.) Chanc. 657 ; 18 Beav. S75. A bill for an account by a solicitor and agent against his principal, stating the receipt and pay- ment of monies, and also the transaction of various matters of business for the defendant, as well as ad- vances by way of loan and payments made by the plaintiff, and that the defendant had paid to the plaintiff various sums of money, and alleging that the accounts were complex and intricate, and that the plaintiff and defendant were mutually indebted upon an open and running account, cannot be main- tained when the facts disclose a case of set-off, with- out shewing any difficulty in taking the accounts at law; and a demurrer to such a bill was allowed. Ibid. {d) As regards third Persons. [See SoU v. My, title Monet had and re- ceived.] Declaration on a charter-party, alleging it to be made " between the defendant therein described as the owner of the good ship or vessel called, &c. of the one part, and the plaintiff, merchant and freighter, of the other part." The defendant pleaded non assumpsit. The charter-party, produced at the trial, was expressed to be made between the defendant of the one part, and the plaintiff "as agent of the freighter," of the other part, and amongst other things stipulated that, "being concluded on behalf of another party, it is agreed that all responsibility on the part of S (the plaintiff) cease as soon as the cargo is shipped." No principal was named in the charter-party, and it appeared from other evidence, that the plaintiff was in point of fact himself the real freighter, and not merely an agent in the matter : Held, that the plaintiff was entitled to sue as prin- cipal for a breach of the charter-party, notwithstand- ing he had contracted as agent, and that the above stipulation, applying only to his character of agent, had not the effect of limiting his responsibility as principal. Schmalz v. Avery, 20 Law J. Rep. (n.s.) Q.B. 228; 16 Q.B. Eep. 655. Deeds of the plaintiff were placed by A in the hands of the defendant, her attorney, and, upon ap- plication, A declined to give any information about them, unless upon payment of a sum of money which she claimed to be due to her from the person who had devised to the plaintiff's wife the property to which the deeds related, and ultimately referred the plaintiff to the defendant. He also refused to give them up, and the plaintiff, in order to obtain them, paid the amount claimed, saying, at the same time, to the defendant, " You shall hear of this again :" — Held, that this was not a voluntary pay- ment, and that the amount so paid was recoverable in an action for money had and received. Oates v. Hudson, 20 Law J. Rep. (n.s.) Exch. 284; 6 Exch. Rep. 346. A sale of certain property seized by the assignees of a bankrupt, being about to take place, the plain- tiff gave notice to the assignees of a claim to a por- tion of the property under a bill of sale by way of Digest, 1850-1865. mortgage, and thereupon the defendants, who were the attornies of the assignees, on the 26th of August wrote to the plaintiff's attorney a letter, stating that in consideration of the plaintiff consenting to the sale, they thereby on behalf of the assignees con- sented that the net proceeds of the effects included in the bill of sale, should be paid over to the plain- tiff to the extent of the balance due for principal and interest. This letter was written by the authority of the trade assignee, who had the management of the sale of the bankrupt's effects, but without the authority of the official assignee. Ill answer, the plaintiff's attorney, the next day, wrote, saying " that in compliance with the under- taking given by you herein," he, on behalf of the plaintiff, consented to the sale. The sale took place, and on the 2nd of December, the defendants wrote again to the plaintiff's attorney, referring to the former letter of the 26th, and stating that unless in- formed within two days of the course the plaintiff intended to pursue, "we shall consider ourselves absolved from our promise, and shall contest the validity of the bill of sale:" — Held, first, that as the letter of the 26th and 27th of August constituted a complete contract, the subsequent letter of the 2nd of December could not be looked at in construing such contract, and that the contract upon the face of it shewed that the defendants contracted merely as agents. Secondly, that the defendants had no authority to bind the official assignee to the under- taking. Thirdly, that although the defendants had no such authority, still they were not liable to be sued in an action upon the contract as principals. Lewis V. Nicholson, 21 Law J. Rep. (n.s.) Q.B. 311. A written contract expressed to be between V, a foreigner resident abroad, and the plaintiff, resident in London, whereby the plaintiff engaged to serve V abroad for a certain period, was signed in London by the defendant expressly for V: Held, that the defendant was not liable for V's breach of the con- tract in wrongfully dismissing the plaintiff from his service. Mahony v. KekvXS, 23 Law J. Rep. (n.s.) C.P. 54; 14 Com. B. Rep. 390. By a written memorandum made between the de- fendant for and on the part of N of the first part, and the plaintiff of the second part, the defendant, on the part of N, agreed to let, and the plaintiff agreed to take, certain premises for a term of years, paying rent to the defendant, for the use of N; and it was also agreed that no auction should be com- mitted on the said premises without the licence, in writing, of the defendant on the part of N, and that the plaintiff should take a lease and execute a coun- terpart thereof when called upon to do so by the defendant on the part of N. The memorandum was signed by the defendant in his own name without any reference to N: — Held, that the defendant was personally liable to be sued upon this agreement. Tanner v. Christiam, 24 Law J. Rep. (n.s.) Q.B. 91; 4E. &B. 691. By a charter-party between the plaintiff and the defendants, described as of London, merchants, it was agreed that the plaintiff's ship should proceed to Torrevieja, and there load a full cargo, at mer- chants' risk and expense, which the said merchants thereby bound themselves to ship, and being so loaded should proceed to Memel and deliver her cargo, being paid freight, half to be paid in cash on 41 610 PRINCIPAL AND AGENT, unloading and delivery, and remainder by good bills in London. Thirty running days to be allowed the said merchants for loading at Torrevieja and dis- charging at Memel. At the foot of the charter- party were the words " By authority of and as agents for M. A. H. Schwcdersky, of Memel," followed by the signatures of the plaintiff and the defendants: — Held, that the defendants were personally liable for a breach of the charter-party. Lmnard y . Rohinson, 24 Law J. Rep. (n,s.) Q.B.'275. A, who lived at Liverpool, brought to a bank at Liverpool a bill of exchange, appearing to have been drawn by B, and to have been accepted by C, who both lived in Yorkshire, and stated that he was agent for B, and inquired of the manager of the bank whether he would discount the bill for B, with- out requiring him. A, to indorse it. The manager agreed to discount the bill without an indorsement by A, and the bill was discounted accordingly, and the money was paid to A. It appeared afterwards that the signature of C had been forged by B, and the bill proved to be worthless. It was assumed that A was innocent, and had no knowledge of the forgery. A became a bankrupt. The bank ten- dered a proof against his estate in respect of the bill, which was allowed by the Commissioner, but no inquiry was then made whether the money had passed from A to B : — Held, on appeal from the de- cision of the Commissioner, first, that the bank had no claim against A in respect of the forgery of the bill ; and, secondly, that the bank had a right to an inquiry as to the relations of A and B after the dis- counting of the bill, with reference to the money paid to A, Ex parte Bird, in re Bourne. 20 Law J. Rep. (N.s.) Bankr. 16; 4 De Gex & S. 273. An agent is liable to account only to his principal, and the case of a charity forms no exception to the rule. The trustee of a charity managed its affairs by an agent, who received the income, and had the title-deeds in his possession. The agent was made a party to an information for an account and a scheme. Held, on demurrer, that he was not a proper party. The Attmney General v. ilie Earl of Chesterfield, 18 Beav. 596. In a case where A had agreed to remit certain consignments to B, and B had agreed to account with A for the proceeds of such consignments ; — Held, that it was not competent at any time after- wards for B to assert a paramount title to the pro- ceeds of such consignments. Zulueta v. Vinent, 1 De Gex, M. & G. 315. (D) Power axd AninoRiTy of the Agent. [See Morgan v. Mof^uis, title BAMiRDPiOT, ante, p. 77.J An agent appointed to represent a party on a reference to arbitration, and to conduct the reference on his behalf, though not an attorney, has authority to bind his principal by waiving an objection to an improper appointment of an umpire by lot. Bach- home V. Taylor, 20 Law J. Rep. (k.s.) Q.B. 233; 2 L. M. & P. P.C. 70. The plaintiff consigned pearls to a Liverpool merchant for sale, and drew bills upon him to an amount greater than the value of the pearls, which bills he accepted. The Liverpool merchant then handed the pearls to his London agent to be sold, and drew bills upon him, as an advance, upon ac- count of the pearls. The London agent accepted the bills, having notice that the pearls had been con- signed by the plaintiff for sale. The Liverpool merchant became insolvent, and the bills drawn upon him by the plaintiff were not paid. The London agent sold the goods to recoup himself the bills drawn upon him by the Liverpool merchant. Upon bill by the consignor alleging fraud and collusion, and praying that the London agent might be decreed to pay him the amount produced by the sale of the pearls, — Held, affirming the decree of the Court below, that the pledge was valid within the 5 & 6 Vict. c. 39. as made bond fide and in the ordinary course of business. Navulshaw v. Brownrigg, 21 Law J. Rep. (n.s.) Chanc. 908; 2 De Gex, M. & G. 441 : aflirming 21 Law J. Rep. (n.s.) Chanc. 57; 1 Sim. N.S. S73. Notice to the pledgee of the fact that the goods were transmitted to the consignee, with directions to sell simply, will not vitiate the pledge; secus, if the pledgee had notice that the consignee was prohibited from pledging. Ibid. The vendor of a bill of exchange, though no party to the bill, is responsible for its genuineness, and if it turns out that the name of one of the parties \s forged and the bill becomes valueless, he is liable to the vendee, as upon a failure of consideration, Gurney v. Womersley, 24 Law J, Rep. (n.s.) Q.B. 46; 4E. &B. 133. The defendants, bill-brokers, having received from A a bill of exchange drawn and indorsed by A, for the purposes of being discounted, took it to the plaintiffs, who were money-lenders, with whom the defendants had previously had similar dealings, and acting as principals, the defendants procured the bill to be discounted by the plaintiffs, without, however, indorsing or guaranteeing it, though asked by the plaintiffs to do so. The rate of discount charged by the defendants to A exceeded that charged by the plaintiffs to the defendants. The acceptance to the bill turned out to have been forged by A, and the bill proved valueless : — Pleld, that the plaintiffs were entitled to recover the sum paid to the defendants upon the discount of the bill as upon a failure of consideration. Ibid. A contracted with the plaintiff that he should en- deavour to sell a picture belonging to A, and if he succeeded A should pay him lUOA A died. The plaintiff endeavoured to sell the picture, and after A's death succeeded in selling it, and brought an action against A*s administratrix. The declaration set out these facts, and alleged that the defendant confirmed the sale as administratrix, and the plaintiff claimed the lOOi. from the defendant as administra- trix : — Held, that the declaration was bad. That the defendant was not liable as administratrix, or personally, for the 100^., the original authority having been revoked by A's death. Campanari v. Woodburn. 24 Law J. Rep. (n.s.) C.P. 13; 1.5 Com. B. Rep. 400. Semble — that the defendant might be liable per- sonally to the plaintiff, on the confirmation of the sale, for a quantum meruit, as on a fresh employ- ment by her to sell. Ibid. A power to a land-agent to "manage and super- intend estates" authorizes him, on behalf of his principal, to enter into an agreement for the usual and customary leases, according to the nature and PRINCIPAL AND AGENT— PRINCIPAL AND SURETY. 611 locality of the property. Peers v. Sneyd, 17 Beav. ISl. An agent employed to purchase cannot buy his own gooda for his principal; neither can an agent employed to sell purchase for himself his principal's goods. Principals may either repudiate such trans- actions altogether, or adopt and take the benefit of them. Bentley v. Cra/oen, 18 Beav. 76. The same rule applies to the case of trustee and cestui que trust and to other relations, and even though the transaction be perfectly hand fide. Ibid. PRINCIPAL AND SURETY. [See Bills and Notes — Bond — Guarantie.] A and B entered into a joint and several bond, conditioned for the payment of all monies due by B to a bank. After the making of the bond the bank, without the privity or consent of B, executed a deed, whereby they in terms released B from all actions, &c., with a proviso that nothing therein contained was to extend to prevent the bank ftom suing any other person than B, who might be liable to make good to the bank any money due from B, or as being jointly or severally bound with B in any bond, &c. as if the deed had not been executed, it being understood and agreed that, as regards any such suits, the deed should not operate or be pleaded in bar or as a release : — Held, first, that this deed operated only as a covenant not to sue B, and not as a release. Secondly, that A was not discharged by the execution of that deed without his consent; the effect of a covenant not to sue the principal debtor qualified by a reserve of the remedies against a surety being to allow the surety to retain all his remedies over against the principal, and the covenant not to sue operating only so far as the rights of the surety may not be affected. Price v. Barker, 21 Law J. Rep. (N.s.) Q.B. 130; 4 E. & B. 760. F & Co. bankers, were creditors of the firm of H, B Sz Co., which consisted of M A H and J B. S H, who was a married woman, with separate pro- perty, joined as surety with J B in several promis- sory notes and bills of exchange to F & Co., to secure a debt due to them from the firm of H, B & Co. The firm of H, B & Co. being then greafly indebted to F & Co. dissolved partnership, and thereupon articles of agreement were entered into between M A H and J B and F & Co., which pro- vided that J B should carry on the business alone; that J B shouldtake upon himself all the partner- ship liabilities, and should pay the debt due to F & Co. by monthly instalments, and should give a bond to F & Co. as an additional or collateral secu- rity only, but not as a release or extinguishment of the partnership debt. F & Co. agreed not to sue ■M A H for the partnership debt, or if that should be necessary for the sake of conformity, not to levy execution against M A H ; and also not to sue J B so long as the monthly instalments were duly paid; but the remedies against the sureties for the partner- ship debt were expressly reserved. J B becoming bankrupt, the bill was filed by F & Co. against S H and her trustees, to make her separate estate avail- able in respect of the notes and bills in which she had joined as surety. The Court below, on motion, made an order for a receiver : — Held, upon appeal. that the case upon the whole record presented too nmch doubt as to the creditor's rights against the surety to warrant the possession of the property being disturbed ; and the order for a receiver was discharged. Owen v. Boman, 20 Law J. Rep. (n.s. ) Chanc. 314; 3 Mac. & G. 378 : affirmed 4 H.L. Cas. 997. Qtiare — whether in a case where there is no com- munication between the creditor and the surety, the creditor is affected by fraudulent representations made by the principal debtor to the surety with a view t© induce the latter to join in the security. Ibid. Qaoere — whether a creditor by agreeing not to sue his principal debtor so long as certain instalments of the debt are duly paid, has thereby discharged the surety. Ibid. Semhle — ^where a creditor accepts, from one of two joint debtors by simple contract, a bond for the whole debt, with a proviso that the bond shall not operate to extinguish the debt, the simple contract debt is nevertheless merged in the specialty, and the proviso is void as repugnant to the deed. Ibid. J W joined in a bond as surety, and the creditor subsequently took a promissory note from the prin- cipal debtor, payable at two months, for the balance due upon the bond. The principal debtor becoming insolvent, and the note being unpaid, the creditor sued J W on the bond, who thereupon filed his bill for an injunction. It was proved that at the time of taking the note there was a general understanding between the principal debtor and the creditor that the remedies upon the bond should not be thereby aifected : — Held, that this general understanding amounted to a stipulation between the parties pre- venting the legal consequences that would have other- wise flowed from the transaction, and that the surety was not released. Wyhe v. Rogers, 21 Law J. Rep. (N.s.) Chanc. 611 ; 1 De Gex, M. & G. 408. An agreement that a dealing between the creditor and principal debtor shall not operate as a discharge of the surety may be proved by parol evidence. Ibid. A sum of money was borrowed from an insurance company, and a bond was given to secure the repay- ment of the money. The borrower at the same time insured his life as a further security; and the bond extended to the payment of the premiums for keeping up the policy. The insurance company having ceased to carry on business was dissolved, and the affairs being wound up, the company transferred, amongst other things, this bond and policy to another insurance company. No premiums were paid to the second company, and the policy was allowed to drop. The surety in the bond died, and the second insurance company claimed to be creditors against his estate for the amount of premiums unpaid, on tlie ground that the policies ought to be kept on foot until the money due upon the bond had been paid : — Held, as regarded the premiums, that this was not such a contract as the assignees of the first insurance company could enforce, although they had a good claim against the estate of the surety, quoad the amount secured by the bond. Atkinson v. Oylby, 21 Law J. Rep. (h.s.) Chanc. 848. The right of a surety to sue for his discharge does not arise until the principal is in a condition to en- force his rights in respect of their jmnt liability, and 612 PRINCIPAL AND SURETY. then only in cases where the principal or creditor refuses to sue the debtor. Padwich v. Stanley, 22 Law J. Rep. (n.s.) Chanc. 184; 9 Hare, 627. A surety, in answer to a letter informing him that proceedings were contemplated against him and his principal, stated, through hia solicitor, that he would in a post or two pay the amount and interest due on the joint security. The surety died, and the creditor sued the administratrix of the surety, and it was held at the Rolls that the letter was a promise to pay, for which the forbearance to sue was a suffi- cient consideration : but on appeal, — Held, that the surety had, neither at law nor in equity, rendered himself severally liable. Jones v. Beach, 22 Law J. Rep. (N.s.) Chanc. 42S; 2 De Gex, M. & G. 886: reversing 21 Law J. Rep. (n.s.) Chanc. 543. Upon the taking of a guarantie for the repayment of advances to a customer, a bank took from the customer a warrant of attorney to secure the debt, and entered into an agreement with the surety that the bank would, at any time when requested by the surety, enter up judgment and levy execution against the customer, the principal debtor, on the warrant of attorney. The surety made a request to that effect, and the bank took the goods of the customer in exe- cution to an amount sufficient to satisfy the debt. On the bankruptcy of the customer, the assignees brought an action against the bank for the goods, and they succeeded, the bank having neglected to comply with the requirements of the Bankrupt Law Consolidation Act, by not filing the original warrant of attorney or a true copy in proper time : — Held, affirming a decree of the Court below, that the neg- lect of the bank operated as a discharge of the lia- bility of the surety. As to the costs, the plaintiff in equity having pleaded and so put the defendant in equity to needless expense, as plaintiff at law, the Court in dismissing the appeal ordered the pUiintifF in equity to pay the costs at law subsequent to the declaration, and gave him the deposit only. Watson V. Alcoch, 22 Law J. Rep. (n.s.) Chanc. 858; 4 De Gex, M. & G. 242; 1 Sm. & 6. 319. A bond was given by two sureties for the faithful discharge of his duties liy an official assignee in bank- ruptcy. Immediately upon his death, by the ex- amination of his books, he was found to be a defaulter to a very large amount. Actions were commenced on the bond against the sureties. One of the sureties sought to restrain the action on the ground of the negligence of the officials whose duty it was to ex- amine the assignee's accounts, &c. There did not, however, appear to have been any want of compli- ance with the rules and regulations in bankruptcy by these parties, and the motion for an injunction was refused. Dawson v. Luwcs, 23 Law J. Rep. (n.s.) Chanc. 434; Kay, 2fl0. To discharge a surety for the due performance of duties there must be on the part of the obligee an act of connivance or gross negligence amounting to u wilful shutting of the e}es to the fraud, or some- thing approximating to it. Ibid. Two persons entered into partnership, and one gaVe to the other the joint and sever;il bond nf him- self and of another jjerson as hia siiruty, indemnifying the other partner irom all loss from the partnership business, iiy the artick-s of partnership, it was to con- tinue for five years, and it was agreed that if either partner should retire and the other continue the busi- ness, the latter might take the former's share of the assets at a valuation ; and it was also agreed that if at the end of the partnership either partner should wish to carry on the business, and should not take the share of the other at the before-mentioned valua- tion, the assets should be realized, the debts paid, and the surplus divided between them. The partnership expired by effluxion of time, neither partner having retired. At the end of the term, the partners con- tinued the partnership for a year and a half or more. The surety never was consulted on this proceeding, although he was cognizant that the concern had not been wound up at the end of the term. The partner (the obligee in the bond) retired, leaving the whole assets in the hands of the other to wind up the con- cern, and the partner, the obligor, three months afterwards, became bankrupt and absconded with part of the assets, and the obligee partner paid off all the liabilities. The surety died, and the obligee partner sued his executor on the bond, and a bill was filed to restrain the action : — Held, (overruling the deci- cion of one of the Vice Chancellors, who had dis- missed the bill, with costs,) that as the partnership affairs had not been wound up at the end of the five years pursuant to the stipulations of the deed, the surety and his estate were discharged from all liability on the bond, and a perpetual injunction was ordered to restrain all proceedings upon it as against the surety. SmaU V. Owrrie, 23 Law J. Rep. (n.s.) Chanc. 746; S De Gex, M. & G. 141; 2 Drew. 102. The surety in a bond having died, a creditors' suit "was instituted to administer his estate, and the obligee was declared a creditor for the amount due upon the bond. After the decree, the obhgee brought an action against the principal in the bond, and took a judg- ment by arrangement for payment of the debt by instalments : — Held, that this dealing with the prin- cipal did not take away the right of the creditor against the surety which had been established by the decree in the suit. Jenkins v. Robertson, 23 Law J. Rep. (n.s.) Chanc. 816; 2 Drew. 351. A principal debtor joined with a surety in a joint and several promissory note to a creditor of the principal debtor, for securing the debt. The principal afterwards executed an assignment of property for the benefit of his creditors, containing a release by the creditors, but no reservation was contained of the creditor's rights against the surety. The creditor to whom the promissory note was given, executed the deed with the privity of the surety, and on the understanding, as shewn upon the evidence, that his rights against the surety were not to be preju- diced thereby. The creditor to whom the note was given and two other creditors were the trustees of the deed, and those three persons were the only creditors of the principal who executed the deed. The principal debtor was adjudicated bankrupt, the act of bankruptcy being the execution of the deed. The surety had before committed an act of bank- ruptcy, and had been adjudged bankrupt. The Commissioner refused to permit the holder of the note and trustee of the deed to prove against the estate of the surety; but upon appeal, — Held, that he was so entitled, and the Commissioner's decision was reversed. Ex- j-inrte Ilarvey, in re Blahdy, and Ex i>cirte Hprinfifidd, m re the y^arae, 23 Law J. Rep. (:;.s.) Bankr. 26; i De Gex, M. & G. 881. A bank lent money to two brothers on condition PRINCIPAL AND SURETY. 613 that a third brother Bhould join in giving security. The three brothers drew and signed a cheque, and the money was paid to them. The third brother died, and the other two being unable to pay, a bill ■was filed against the executors of the deceased brother: Held, that the liability created by the three brothers was not joint and several. Other v. Iveson, 24 Law J. Rep. (n.s.) Chanc. 654; 3 Drew. 177. A B, who being one of several sureties had been obliged to pay a large sum for the principal debtor, filed a bill against his co-sureties for contribution. It was held, that, one co-surety being insolvent, the other sureties must pay the whole amount equally between them, and that the co-sureties must also pay interest to A B on their shares which had been paid by him. Hitchmanv. Stewairt, 24 Law J. Eep. (n.s.) Chanc. 690; 3 Drew. 271. It was further held, that the principal debtor and the insolvent surety were properly made parties to the suit; and all parties were ordered to pay their own costs. Ibid. Two owners of two reversionary shares of a fund in court assigned their shares to a creditor for securing 1,000/. A, one of the two owners, was principal, and B, the other, a surety. C, the creditor, obtained a stop-order, and subsequently assigned his mortgage to D and E, the trustees of his marriage settlement, who did not obtain any fresh stop-order nor give notice of their assignment to B, the surety. The solicitor of C, the original creditor, presented a peti- tion in the name of A, the principal debtor, for the payment out of court of A's share, falsely alleging therein that he had paid 5002,, part of the debt, and without any authority, the same solicitor instructed counsel to appear and consent on behalf of B, the surety, and C, the original creditor, and upon this petition A's share was paid out of court without the knowjedge of B or C or D or E. B, the surety, filed his bill praying that C, the original creditor, and his trustees, and all claiming under the settle- ment, might be held bound by the statements in the petition, and that the money of A, the principal debtor, received by the solicitor of C, ought to be treated as received for C, or for the trustees of his marriage settlement. One of the Vice Chancellors decided that as the primary fund was lost by reason of the neglect of the trustees in not obtaining a stop- •order, the creditors could not have recourse to the fund secondarily liable, and that the share of the surety was not liable to the debt : — Held, upon ap- peal, first, that it is not necessary to give a surety notice of an assignment of a debt, and that the share of the surety was not discharged by the want of notice; secondly, that the omission of the trustees to obtain a fresh stop-order on the occasion of the as- signment to them gave the surety no right or equity ; thirdly, that neither the principal nor the surety were bound by the allegations in the petition, the solicitor not being authorized to make them or to act in the matter; fourthly, that the share of the surety wa3 liable to make good any deficiency of the share of the principal debtor not occasioned by the default of the original creditor, although tlie principal security was lost through an order of the Court. Wheaikyr. Baslow, 24 Law J. Eep. (n.s.) Chanc. 727. The solicitor was ordered to shew cause why he should not be struck oiF the roll. Ibid. A party, relying on his ignorance of facts, must shew, not only that he had not the information, but that he could not with due diligence obtain it. Waion V. Wareimg, 15 Beav. 151. The plaintifi^, a surety, sought to set aside a deed, executed in 1848, on the ground that he had been released by a transaction between the principals in 1842, of which he was ignorant in 1848. It appeared that he had made inquiries in 1845, and was referred to persons who could give him the information, but neglected to do so until the end of 1849, when he obtained it : Held, that having in 1845 the means of acquiring the knowledge, he must be deemed to have had it in 1848, and his bill was dismissed. Ibid. A necessary consequence of a reservation in a com- position deed of a creditor's remedy against a surety, is the continuance of the surety's right to be indem- nified by the principal debtor, and this right will not be held to be abandoned unless a contract to abandon it is proved. Close v. Close, i De Gex, M. & G. 176. Therefore, where one of the creditors, who acceded to a composition deed, was also a residuary legatee of a surety for the compounding debtors to another creditor, and one of the compounding debtors hap- pened to be the surety's executor, — Held, that the residuary legatee's accession must be taken to have been in respect of his direct debt only, and did not preclude him from insisting on the surety's estate being indemnified by the debtors. Ibid. One of the makers of a joint and several promissory note, who was a surety for the other, eifected an in- surance on the life of the latter, with his privity and concurrence, for an amount equal to that secured by the note. The principal died, having appointed the surety his executor, and the surety received the insurance money : — Held, that to the extent to which it was not required for indemnifying the surety, it ought to be applied in payment of the debt. Xea v. Smton, 6 De Gex, M. & G. 823; 19 Beav. 324. In a suit by A against B and C, a conveyance of an estate by A to B was declared void and set aside for fraud, except as to an intermediate mortgage of the estate, made by B to D to secure a sum of money lent by D to B, and for which C had joined B, as his surety in a bond and covenant to D ; and the decree also directed B to redeem the estate and procure its reconveyance to A, and if he did not do so, gave A the right to redeem, and to use the name of B for that purpose, and to recover from B the money which A should pay to D for such reconvey- ance; and the bill was dismissed against C. A after- wards procured an assignment of D's mortgage to a trustee, and, in the name of the mortgagees, brought an action against C on his covenant and bond : — Held, that if A had redeemed D, the debt would have gone as against C ; that C, as the surety of B, would, on payment of the mortgage-debt, be entitled to the benefit of the security held by D, such secu- rity not having been disturbed by the decree ; that the charge of participation by C in the fraud, whereby B had been enabled to create the mortgage on the estate, was not a ground for depriving C of such right; and that C was therefore, in a suit for an in- junction to restrain A from suing him on the bond and covenant, entitled to such relief. Yonge v. Jleyndl, 9 Hare, 809. 614 PHINCIPAL AND SURETY— PRISONER, The circumstance of the dismissal, as against C, of the bill brought by A against B and C, which prayed that the mortgage-debt might be paid by B and C, was material to the case, though it was not alone conclusive, as it might well be that there might be no equity to compel C to pay the debt, though C might have no equity to be relieved from his legal liability to pay it. Ibid. The right of a surety to the benefit of the security held by the creditor is derived from the obligation of the principal debtor to indemnify his surety— semSfe. Ibid. The contract of suretyship entitles the surety to require that his position shall not be altered by any arrangement between the creditor and the principal debtor from that in which he stood at the time of the contract, and it therefore entitles him absolutely to the benefit of all the securities for the debt which the creditor held at the time of the contract; it also enti- tles the surety at any time to require that the creditor shall enforce against the principal debtor, not only all his remedies and all the securities for the debt which he had at the time of the contract, but also any securities for the debt which the cre- ditor may have acquired subsequently to the con- tract, and which he holds at the time that the surety requires him to proceed. And as a person paying otf a debt for which he is liable is entitled in equity to stand in the place of the creditor, and to have the benefit of the securities held by the creditor for such debt, so the surety, on paying oif the debt of the principal debtor, is entitled to require from the creditor the benefit, not only of the securities for the debt which the creditor had at the time of the contract of suretyship, but also of all the securities which he holds at the time he is paid ofi'. But there is no implied duty in the contract of suretyship which requires the creditor to retain for the benefit of the surety securities for the debt which he might subsequently receive from the principal debtor, and 'which, whilst the creditor holds them, the surety does not call upon him to enforce. And a creditor who, after the contract of suretyship, having taken a fur- ther security from the principal debtor, subsequently parts with that security, does not thereby, either wholly or pro tamto, release the surety. Newton v. Charlton, 10 Hare, 646. A, B and C contracted with a company to execute certain works on given terms; D and E gave a bond as their sureties for the performance of the con- tract; A and B retired from the partnership, and F was substituted. Afterwards disputes arose between the company and C and F as to the conduct of the works, and various transactions took place, by which the terms of the contract were vai'ied, and during which the company paid to C and F certain monies which it had been agreed originally should be paid to A, B and C. D and E, the sureties, were no parties to these transactions, and gave no express consent; but they had been the solicitors of A, B and C in the original contract, knew of all the sub- sequent transactions, and acted as the solicitors of C and F; and, as such solicitors, prepared many of the documents required for such transactions. The com- pany having brought an action on the bond against the sureties for breach of contract, they filed this bill to restrain the action : — Held, that the sureties were not discharged, and that the action could not be stopped. WoodcocJe v. the Oxford arte Ramshay, 21 Law J, Rep, (N.s.) Q.B. 238; 18 Q.B. Rep. 173. An instrument removing a county court Judge from office need not set out all the proceedings insti- tuted in order to the removal, with the specific charges shewing inability or misbehaviour, or the evidence adduced to support those charges. Ibid. If it be drawn up in the words of the act of parlia- ment it will be presumed, until the contrary is proved, that the Chancellor has duly exercised his jurisdiction. Ibid. Where a person has been elected to the office of councillor of a borough for which he was a candi- date, and has acted in such office, and afterwards, upon a rule jim for a quo warranto information being obtained against him, declined to shew cause, and submitted to resign, and, if necessary, formally to disclaim, the Court will make the rule absolute without imposing any terms upon the relator as to the costs of any subsequent proceedings. Regi/tm v. Earnsliaw, 22 Law J. Rep. (n.s.) Ci.B. 174. RAILWAY. Case against a railway company for constructing a portion of their works upon a part of the bed of the navigable river Ouse, so as to prevent its flowing in its usual and accustomed channel, and to hinder the plaintiffs from passing and navigating their barges, as they otherwise might and would have done. Plea, that the defendants had acted under their special act, the Lands Clauses Consolidation Act, and the Railways Clauses Consolidation Act; that plans and sections and books of reference had been deposited with the clerk of the peace, and that, subject to the provisions in the above acts, the defen- dants were empowered to construct their railway in the line and upon the lands delineated and described in the said plans and books of reference; that the said part of the river was in the hne and among the lands so delineated and described; and that the de- fendants did, for the purpose and under the powers mentioned in the said acts, construct a part of their railway upon the bed of the said river, thie same being necessary for the purpose of making and main- taining the said railway, as they lawfully might, &c. Replication, de injurid : — Held, that the defendants by their plea were not required to prove that they had taken all the preliminary steps necessary to vest in them the ownership in the bed of the part of the river in question, as in the ordinary case of lands purchased. A braJiam v. the Great Northern Rail. Co., 20 Law J. Rep. (n.s.) Q.B. 322; 16 Q.B. Rep. £86. Held, also, on motion for judgment non obstamte veredicto, first, that as against the plaintiffs, who had no interest in the soil of the bed of the river, it was not necessary for the defendants to aver and prove that such preliminary steps had been taken. Second- ly, that the first clause in the 16th section of the Railways Clauses Consolidation Act, applies to navigable rivers as well as rivers not navigable, and empowered the defendants to do the act complained of. Ibid. A declaration against a railway company stated that the plaintiffs, at the defendants' request, deli- vered, and the defendants received certain horses to be carried and conveyed for the plaintiffs by the defendants, in their carriages upon and along their railway, for reward to them in that behalf, from H to S; that after such delivery and acceptance the said horses were placed in certain carriages of the defendants to be so carried and conveyed; that after the said horses had left H, and whilst they were being conveyed along the railway, and whilst the said carriages and the locomotive power thereof were under the management of the defendants, one of the wheels of the said carriages caught fire, of which the defendants had due notice, and were afterwards at a convenient time and place, to wit, at the next station, requested by the plaintiffs not to persist in conveying the said horses in the said car- riage further, which the defendants refused to do, and in spite of such request did continue to convey the said horses in the said carriage; that afterwards the wheel again took fire by and for want of due precaution against friction, and in consequence thereof the said carriage was thrown out of its proper position on the railway and the said horses injured. Plea, amongst others, traversing the delivery and acceptance of the said horses to be carried modo et formd. At the trial, the defendants put in evidence a ticket signed by one of the plaintiffs on the occa- sion of the horses being received and placed upon the railway, in which was a memorandum stating that the ticket was issued subject to the owner RAILWAY. 621 undertaking all risk of injury by conveyance and other contingencies, and his seeing to the efficiency of the carriage before the horses were put therein, the charge being for the use of the carriages and locomotive power o'nly ; and that the company would not be responsible for any alleged defects in their carriages or trucks, unless complained of at the time of booking, or before the same lef't the station, nor for any damage whatever to horses, &c, travel- ling upon their railway in their vehicles: — Held, that the special terms of the memorandum dis- proved the bailment alleged in the declaration, which was material to the breach, and therefore that the defendants were entitled to the verdict on the above plea. Austim, v. the Manchester, Sheffield wad Lvncolnshvre Bail. Co., 20 Law J. Rep. (h.s.) Ci.B. 335; 16 Q.B. Rep. 600. An order of Justices, made under 8 Vict. c. 20. s. 58, directing a railway company to repair damage done by them to a road, need not specify the par- ticulars of the damage done or of the repairs ordered, if it states the length of road injured, and directs the damage so done to be made good. Tlie London and North-western Sail. Co. v. WetheraU, 20 Law J. Rep. (n.s.) Q.B. 337. Such an order as well as a conviction adjudging a penalty for its disobedience may include several roads situate in the same parish. Ibid. The conviction purported to be made by virtue of the Railn'ays Glauses Consolidation Act: — Held, sufficient. Ibid. Where within the prescribed period the promoters of a railway company gave notice to a landowner on the intended line of railway, that they required to purchase his lands, and the landowner served them with a notice to treat, and demanded that the amount of compensation should be settled by a jury, and no further steps were taken to complete the purchase until after the expiration of the period prescribed for the exercise of the powers of the company for the compulsory purchase and letting of lands ; — Held, that the company might, on the application of the landowner, notwithstanding the lapse of time, be compelled by mandamus to issue their warrant to the sheriff to summon a jury to assess the amount of compensation. The Birmingham and Oxford Junction Bail. Co. v. Regina (in error), 20 Law J. Kep. (N.s.) Q.B. 304; 15 Q.B. Rep. 634. A mandamus reciting that a railway crossed a certain public highway not on a level by means of a trench or cutting, in which the permanent way of the railway had been laid down, whereby the high- way was rendered impassable for carriages and pas- sengers, commanded the company to cause the said public highway to be carried over the railway by means of a bridge in conformity with the regulations of the Railways Clauses Consolidation Act, 1848. The mandamus was held bad, on the ground that, by the Railways Clauses Consolidation Act, s. 46, where the railway crossed a public highway not on a level, the company had an option either to carry the road over the railway or the railway over the road, and that it did not appear sufficiently on the manda- mus that the company had determined that option, so as to render it imperative on them to adopt the one alternative commanded by the mandamus, as although the company might have intended that the rails as laid down should be the permanent way, they were at liberty to take them up and lay them down in a different manner. The South-Bastem Bail. Co. V. Begina (in error), 20 Law J. Rep. (k.b.) Q,.B. 428; 15 Q.B. Rep. 813. A railway company having opened their main line for traffic, but not having completed the stations and works, are entitled under the Railways Clauses Act, 8 Vict. c. 20. 3. 16, to take compulsorily, within the time for completing the railway and works, any lands situate within the limits of deviation for the purpose of making a branch railway. Sadd v. the Maidon, Witham amd Braimtree Bail. Co., 20 Law J. Rep. (n.s.) Exch. 102; 6 Exch. Rep. 143. The words " turnpike road " in the Railways Clauses Consolidation Act, section 50, mean a road which is repaired by tolls payable by passengers for the use of the road. Begima v. the East and West India Docks and Bi/rmmgham Jvmction Bail. Co., 22 Law J. Rep. (N.s.) Q-B. 380; 2 E. & B. 466. A mandamus suggested that a railway company had constructed a bridge to carry over their line a street alleged to be a turnpike road, and had made the ascent of the bridge greater than 1 in 30 feet, and also that they had deviated from the levels of the railway to an extent exceeding two feet at the point where the bridge was erected, and that the said street was affected by such deviation, and commanded them to make the ascent of the bridge as by law they were bound to do, and also to make the levels of the railway, and any deviation therefrom in con- formity with the regulations of the Railways Clauses Consolidation Act. Upon the trial of issues raised upon a return, it was found that the street in ques- tion was a public highway, but not a turnpike road; that this level of the rail .vay was deviated from more than two feet at the point where the bridge crossed the line; and that in consequence of such deviation it was necessary to raise the bridge much higher than would have been otherwise necessary, and by reason thereof the said street was rendered more steep and inconvenient to the public ; and also that the ascent of the bridge was greater than 1 in 30 feet, but did not exceed 1 in 20 feet as permitted in the case of an ordinary highway : — Held, that as the first part of the writ could not be supported, no peremptory mandnmus at all could be awarded; and that a mandamus directing the defendants simply to lower the level of their railway would be useless, as it would not oblige them to alter the height of the bridge. Ibid. The provision in section 26. of the Railways Clauses Consolidation Act, that in the exercise of their powers the company shall do as little damage as may be, and shall make satisfaction to all parties interested for all damages sustained by them, applies only to cases of damage to individuals for which compensation may be made, and does not controul the enactment in section 50. as to the ascent of bridges over the line. Ibid. Under the 13th, 14th, and 15ih sections of the Railways Clauses Consolidation Act, 1849, 8 & 9 Vict. c. 20, where a tunnel is marked on the depo- sited plans of a railway, the line cannot be deviated within the limits of deviation, but the tunnel must be made on the place indicated, unless there be an agreement, or a provision in the special act, to the contrary. But if the railway be wrongfully deviated where a tunnel is laid down, the railway company 622 RAILWAY. is not bound to make a tunnel on the line so devi- ated. Little V. the Newport, Abergavenny and Hereford Sail. Co., 22 Law J. Rep. (n.s.) C.P. 39; 12 Com. B. Rep. 752. Two railway companies entered into a hon& fide contract by deed, by whicli it was provided tliat the defendants might for twenty-one years pass over the railways of the plaintifis and have free use of their works and conveniences for the purpose of carrying coal upon payment of certain tolls and under cer- tain conditions, that is to say, when the quantity of coal carried over any part of the plaintiffs' railways to the defendants' railway and thence south of Don- caster, together with the quantity of coal carried over the plaintiffs' railways by or for the defendants, or by any arrangement with them, to any other rail- way for transit to the south of Sheffield or Rother- ham should not amount to 125,000 tons in the period of six calendar months, then the defendants should pay to the plaintiffs such toll for such period of six calendar months as would with any clear profit which might be made by the plaintiffs for the same period after payment of all annual and half- yearly charges for interest and outgoings and all ex- penses of management or otherwise be sufficient to enable the plaintiffs to pay such dividends as might become payable in respect of any guaranteed or pre- ference stock of the plaintiffs already issued or here- after to be issued with the consent of the defendants, and also a clear net dividend at the rate of 32. per cent, per annum for such period of six calendar months, upon the ordinary capital stock for the time being of the plaintiffs then called up or thereafter to be called up with the consent of the defendants; and when the quantity of coal for any such period of six calendar months should exceed 12.5,000 tons and not 150,000 tons, such sum as would make up in man- ner before mentioned the dividend upon the pre- ference stock, and 3/. 5s. per cent, upon the ordi- nary stock, and when the quantity of coal, during the like period of six calendar months, should exceed 150,000 tons, and not 175,000 tons, such sum as would make up in the like manner the divi- dend upon the preference stock, and 3i. 10s. per cent, on the ordinary stock, and so on progressively up to the carriage of upwards of 400,000 tons during any such period of six calendar months, in which case the defendants were to pay the plaintiffs such sum as, together with the clear profits made by the plaintiffs during the same period, would pay the dividend upon the preference stock, and 6J. per cent, upon the ordinary stock. It was also provided that if the payment made by the defendants for any period of six months once made up H. 10». per cent, on the ordinary stock of the plaintiffs, it should never afterwards recede: — Held, in an action to recover the sum payable under the contract, 'per Parhe, B. and Piatt', B. (Pollock, C.B. dubitante, and Martin, B. dissentiente), that this was a legal contract, and not beyond the powers of the respective companies, the payments to be made being within the meaning of the word " tolls" in the 87th section of the Railways Clauses Consolidation Act, 8 Vict. c. 20. The South TorJcshire Bail, and River Dwn Co. V. the Great Northern Rail. Co., 22 Law J. Rep. (b.s.) Exch. 305; 9 Exch. Rep. 55. By the 14th section of the 13 & 14 Vict. c. IxL, the Great Northern Railway Act, the company were empowered to demand for any parcel not exceeding 500 pounds weight any sum they might think fit " Provided always, that articles sent in large aggre- gate quantities, although made up of separate parcels, such as bags of sugar, coffee, meal and the like, shall not be deemed small parcels, but such term shall apply only to single parcels in separate packages": — Held, that the defendants were not entitled to charge the plaintiff, for the carriage of packages containing small parcels, a larger sum than they charged to other persons. Crouch v. the Cheat Northern Rail. Co., 23 Law J. Rep. (n.s.) Exch. 418; 9 Exch. Rep. 556. The Shrewsbury and Chester Railway Company were, by various acts of parliament, empowered to make several railways, and also to build wharfs and warehouses for the purposes of the trafiSc of the company on the banks of the River Dee, the con- servancy of which was vested in other persons. The railway company brought a bill into parliament to pre- serve and improve the navigation of the river, though it had no power to apply any of the capital of the com- pany for that purpose. Upon a bill filed by one share- holder, — Held, that the directors of the railway com- pany could not legally apply any of the railway capital in payment of the expenses of preparing, prosecuting or promoting the bill in parliament, or for any other purpose not authorized by the acts of the railway company, and an injunction was granted to restrain them from so doing. Mwnt v. the Shrews- bury and Chester Rail. Co., 20 Law J. Rep. (n.s.) Chanc. 169. The E. C Railway Company had a bill before parliament for making a railway from W to S, with a line diverging from the main line to N. One of the objections to the bill was, that the diverging line would cross another railway line. When the bill was in committee it was ascertained that this objec- tion would be removed, if the company were to obtain an estate which stood settled on A for life, with remainders over, which estate, however, by their bill they would not be authorized to buy. An agreement was entered into between the company and A, by which the company agreed to purchase this estate from A, and to perform all such acts as might enable A to sell the estate. The bill was passed, without obtaining any powers to purchase A's estate, and omitting the diverging line. The line from W to S and everything connected with it were afterwards abandoned by the company. In a suit by A against the company for a specific per- formance of the agreement, — Held, that they were bound to perform it. JTawJces v. the Eastern Coun- ties Rail. Co., 20 Law J. Rep. (n.s.) Chanc. 243. The W. W. W. Railway Company was alleged to have obtained its act of incorporation by fraud, with the assistance of the S. W. Company, and through an illegal subscription for shares; and by similar means, and by the use of illegal votes, to have car- ried on the W. W. W. Company against the wishes and votes of the bond fide shareholders. Finally, the S. W. Company obtained an act of parliament to sanction as alleged the subscription to the W.W.W. Railway Company, and to appoint directors of the S. W. Company to be directors of the W. W. W. Company, but from the difficulties of the W.W.W. Railway Company, it was finally resolved to make a part of the line only, and a bill to obtain parlia- RAILWAY. 623 mentary sanction for that purpose was withdrawn upon a resolution to wind up the affairs of the W. W. W. Company : — Held, as the directors had resolved to wind up the affairs of the company, and had withdrawn the bill to obtain parliamentary sanction to make a part of the line, that an applica- tion for an injunction had become unnecessary, and it was refused, but liberty was given to apply upon a resumption of works. Logcm v. Ewrl Cowrtown, 20 Law J. Rep. (n.s.) Chanc. 347; 13 Beav. 22. Held, further, notwithstanding the subscription of the S. W. Railway Company to the "W. W. W. Railway Company was originally illegal, yet after an act of parliament to authorize the S. W. Railway Company to subscribe to the W. W. W. Company, notwithstanding the construction of the act was doubtful, that the Court, as the money of the S. W. Railway Company was at stake, would not restrain the directors of the S. W. Railway Company, acting as directors of the W. W. W. Railway Company, from interfering in its affairs. Ibid. Held, also, though the acts of the directors of the W. W. W. Railway Company appeared to have been improper, that the Court would not restrain the W. W. W. Railway Company from enforcing the payment of calls, as it was possible that there were legal obligations to answer, and an injunction was refused, but without costs. Ibid. Though a shareholder in a railway company has an equity to have an injunction to restrain the direc- tors from applying the funds of the company in the completion of a part only of the line with a view to the abandonment of the remainder, yet where the shareholder, with the knowledge of the intention to abandon the greater part of the line, remained pas- sive for eighteen months, while the directors were expending large sums in the completion of the remainder, the Court refused to interfere by injunc- tion. Graham, v. the Birkenhead, Lancashire and Cheshire Junction Rail. Co., 20 Law J. Rep. (n.s.) Chanc. 445. The M. Railway and Canal Company obtained several acts of parliament for improving their exist- ing canal and railways, and for making a new railway, but from want of funds they failed to complete the whole of the works within the time specified by their acts. Upon a bill filed by a shareholder to restrain the company from making a dividend out of the income arising from that portion of the property which was worked, — Held, that general demurrers filed on merely formal and technical causes were to be disapproved of; that the jurisdiction of the Court had been usefully exercised in cases arising from a combination of illegal acts, breaches of con- tract with the public or the shareholders, and erro- neous acts which shareholders could not rectify; that it could not safely be laid down that in no case ought joint-stock companies to be allowed to divide any profits or receive any tolls until all their works were complete; that it was necessary to distinguish be- tween the duty which the governing body had to perform to the public and to the shareholders; that the Court did not attempt to direct the performance of all the duties which a governing body owed to the shareholders, but left shareholders to enforce the duties to themselves arising out of internal arrangement; that it was imprudent to treat income as profit while the works and the contract )vith the public were incomplete; that the Court had not jurisdiction to interfere, on the ground that this was a violation of a duty to the public, and because the misapplication of income was the subject of internal regulations; and the demurrer was allowed, but without costs. Brown v. iAe Monmouthshire Sail, and Canal Co., 20 Law J. Rep. (n.s.) Chanc. 497; 13 Beav. 32. A railway company, incorporated by act of par- liament, contracted unconditionally with a land- owner, in consideration of his having withdrawn his opposition to their bill in parliament, to purchase certain of his land for the formation of their railway. The undertaking was afterwards abandoned, and the time for its completion, limited by the company's act, had expired : — Held, on claim filed by the landowner, that the company was bound to complete the contract. Weib v. the Direct Zcmdon amd Portsmouth Rail. Co., 20 Law J. Rep. (n.s.) Chanc. 666; 9 Hare, 129. The Court of Chancery will withhold its interfer- ence when called upon by either party to act in aid of an agreement, attempting to carry into eflFect without the intervention of parliament what cannot be lawfully done except by parliament, in the exer- cise of its discretion with reference to the interests of the public. The Great Northern Rail. Co. v. the Eastern Counties Rail. Co., 21 Law J. Rep. (n.s.) Chanc. 837; 9 Hare, 306. Whether railways are public highways — qucere. Ibid. A local railway act enacted that the whole of certain ground in a seaport town, conveyed to the company, should be used solely for the purposes of the railway and the buildings connected therewith, except for coke ovens or any purposes (other than the necessary purposes of the railway), which might cause nuisance or damage to the vendor's other property : — Held, not to restrain the company from allowing part of the building to be used as the Custom-house, for passing the luggage of passengers and travellers and other Custom-house duties. The Wao'den amd Assistants of the Saviour of Dover v. ths SouthrEastem Rail. Co., 21 Law J. Rep. (n.s.) Chanc. 886; 9 Hare, 489. Whether part of the buildings could be used as sleeping rooms in connexion with an hotel built by the company on the adjoining ground — qucere. Ibid. A railway company contracted with another that the first should have the use of the line of the latter for a term certain at stated tolls, according to the tonnage carried; and it was agreed that these tolls should be charged on the tolls and dues of the com- pany who had the use of the line, and that upon non-payment the other company might take and impound such tolls and dues, and deal with the same in the same way as with distresses for rent. On a bill filed to restrain the company who had the use of the line from dividing their funds among their shareholders, by way of dividend, until the debts alleged to be due to the other company were paid : — Held, that the Court would not interfere by way of injunction, but left the plaintiffs to proceed by action or - distress as they might be advised, the remedy of the plaintiffs being at law. The South Yorhshire Rail, amd River Dim Co. v. the Great Northern Rail. Co., 22 Law J. Rep. (n.s.) Chanc. 761; 3De Gex,M. & G. S76; 1 Sm. &G. 324. 624 RAILWAY. Semhie — That a railway company cannot legally or equitably mortgage its undertaking without the authority of parliament. Ibid. Semble — That such an agreement is not a contract for the use of a Hue, nor for an apportionment of tolls within the 87th section of the Railways Clauses Consolidation Act, 8 Vict. c. 20. -Ibid. A nobleman, through whose estate the lines of two projected and competing railway companies contem- plated passing, agreed with the provisional directors of one of the companies to withdraw his opposition to its bill in parliament, and to oppose the other com- pany upon certain terms, one of which was, that the company which he supported, if incorporated, should construct a certain station, at which all trains should stop for the accommodation of passengers, &c. It was also stipulated, that if the two companies should become amalgamated, the agreement between the parties should be binding upon the amalgamated company. The two companies ultimately became amalgamated, and the station constructed, at which all trains, except express trains, duly stopped : — Held, upon motion for an injunction to restrain any trains from passing without stopping at the station, that the agreement was binding upon the amalga- mated company, and an injunction was granted in the terms of the notice of motion. The Earl of Lindsey v. the Great Northern Rail. Co., 22 Law J. Rep. (n.s.) Chanc. 995; 10 Hare, 664. The Court will, on motion by mortgagees, appoint a receiver of the rents and tolls of a railway company, notwithstanding the company is a parliamentary cor- poration, and compellable by mandamus to do all things which it ought to do, and restrainable by in- dictment from acting unlawfully, and notwithstand- ing the act of incorporation has appointed a receiver and manager. Fripp v. cal Society of London, 3 E. & B. 807. The Linnean Society of London was incorporated ibr the cultivation of the science of natural history, and every kind of improvement in the arts and sciences. The society was managed by a president and some of the fellows. At the society's meetings, papers on natural history were read and discussed, .And some of them printed in the society's Transac- tions. Copies of the Transactions were circulated amongst the fellows, and given to other institutions, and copies were also sold for the purpose of defray- ing the cost of printing and publication. The society was supported in part by annual contributions paid by some of the fellows, and sums paid by others of :the fellows in lieu of annual contributions. Two of the rooms occupied by the society were used as a dwelling for the clerk, librarian and housekeeper of .the society, and the porter of the society also resided on the premises. These officers paid no rent, but the value of the use of their rooms was taken into ac- count in the amount of their salaries. The remain- der of the apartments were entirely appropriated to a museum, library and other rooms suitable and ne- cessary for the purposes of the society.. The society's premises were part only of what had formerly been occupied as one house, and then rated as No. 32, Soho Square. Part of the house was situate in Dean Street, and this part afterwards made distinct from the rest, and numbered 17. in the said street, and was, together with some of the rooms in the other part of the house, No. 82, Soho Square, underlet by the society to B. The society was assessed to the poor-rate in respect of the whole of the premises No. 32, Soho Square, their tenant B being assessed Digest, 1850—1855. in respect only of the distinct portion of the premises, numbered 17, Dean Street: — Held, first, that the society was established for the purpose of science exclusively. Secondly, that it was a society supported in part by voluntary contributions, and, therefore, within the exemption from liability to poor- rates provided by 6 & 7 Vict. c. 36. Thirdly, that the residence of the librarian, &.c. and porter on tbe premises being subsidiary and necessary for the pai- poses of the society, did not deprive the society of exemption from rateability. Fourthly, that the mere circumstance of the society underletting part of the premises did not deprive them of such exemption. That the society could not be considered as occupy- ing the part of the premises, No. 32, Soho Square, underlet to B, but that it was to be taken as part of the house, No. 17, Dean Street, for which B. and not the society was liable to be rated. 37ie Linnean So- ciety of London v. St. Anne's, Westminster, 23 Law J. Rep. (N.S.) M.C. 148 ; 3 E. & B. 793. The Cambridge Philosophical Society was esta- blished by charter for the promotion of philosophy and natural history among graduates of the Univer- sity, and occupied a building, part of which consisted of a library, chiefly of scientific books, rooms for holding meetings of the society, at which scientific papers were read, and a museum of objects of natu- ral history, and the residue of a readinc-room and apartments for the curator. Every fellow of the society paid a guinea by way of annual subscription to the society. In addition to the bye-laws regu- lating the society, there were certain reading-room regulations under whicb every fellow of the society, elected before 1822, was entitled to become a mem- ber of the reading-room on payment of the read- ing room subscription, and those elected since 182'2 were necessarily members of it. The annual sub- scription to tlie reading-room was 1;. 6s., to be payable during residence. The reading-room was supplied with reviews, magazines, and periodicals (some of which only were of a scientific character), and with the ordinary daily and other newspapers. It was open every week-day from 8a.m. toll p.m.,, and strangers .might be introduced to it, and non- resident fellows of the society visiting Cambridge were entitled to use it. The scientific meetings of the society did not exceed twelve in any year. The funds of the society consisted principally of the sub- scriptions of the members, and it had not made, and could not lawfully make any dividend, gift, or bonus to any of its members. The subscriptions to th« reading-room exceeded the subscriptions to thesociety, and the amount disbursed for newspapers was double that paid for books :^Held, that the society wasnot entitled to be exempted from rateability under the 6 & 7 Vict. c. 36, as the premises were not occupied for the purposes of science, literature or the fine arts exclusively ; and that the reading-room could not be separated for the purpose of exemption from the rest of the building. Pwchai v. the Holy Sepulchre, Canibridge, 24 Law J. Rep. (n.s.) M.C. 9; 4 E. & B. 156. (c) Rateable Value and Principle of Assessment. The legal principle of rating sanctioned by tlie Courts and recognized by the Parochial Assessments Act (6 .&, 7 Will. 4. t. 96.) is applicable to all cases where a company or an individual occupies in differ- 4M 634 RATE; (A) PooK Rate. ent parishes land forming one entire property ; and the value which the land occupied in each parish produces, after the proper allowances have been made, is that upon which the occupier must be rated in each. Regina v. the London, Srighton and Sovith-Coast Sail. Co., and Regiiia v. -Oie South' Eastern Sail. Co., and Segina v. the Midland Rail. Co., 20 Law J. Rep. (n.s.) M.C. 124; 15 Q.B. Rep. 313. The occupation of a railway company does not in its broad principles differ from that of a canal com- pany; and as the 6 & 7 Will. 4. c. SS. provides but one rule, and is intended to secure uniformity of rating, the same principle of assessment must be applied to both cases. Therefore, a rate is to be imposed upon a railway company upon the ordinary principle of ascertaining the actual rateable value of the land oc- cupied by the company in each parish through which it passes, by the rules which are applicable to any other land occupied by other bodies or persons for other purposes. Ibid. The rateable value of the portion of railway oc- cupied in any particular parish must be deduced from the net earnings in that parish, ascertained by a com- parison of the profits and outgoings arising in that parish; and not by treating the rateable vaWe, how- ever constituted, of the whole line of railway as entire, and dividing it among the several parishes simply according to the distance which the line passes through each. Ibid. In ascertaining the rateable value of a portion of a railway in any parish, the amount at which the company is rated in another parish cannot be taken into consideration. But any expenses, wherever arising, which are shewn to be necessary for keeping the hereditament in the parish at the value which is made the measure of the assessment may properly be taken into consideration in arriving at that value. Ibid. There is no insuperable difficulty in applying the principle of parochial earnings to the rating of rail- ways, as companies are bound to afford to parish officers the means of laying the rate fairly. Ibid. A railway company is entitled to an annual deduction from the ascertained value of their occu- pation, in order to countervail the depreciation which takes place in the value of the permanent way, and to maintain it in a state to command the sup- posed rent, according to the principle upon which such a deduction is allowed in all cases of property of a perishable nature. Ibid. Such a deduction is not included in the working expenses of the railway. Ibid, The company will not be disentitled to this deduc- tion, because no annual charge for the purpose of meeting the depreciation has, in fact, been made on their receipts, either by way of outlay or setting apart any sum; although such a course ought to be adopted by the company. Ibid. Semble, also, that whenever the time arrives for actually making the restoration, the company will be estopped from claiming more than the annual amount of deduction previously allowed to them. Ibid. Quaere — Whether the deduction could be allowed if the company had defrayed such expenses as had been incurred out of their capital instead of their revenues. Ibid. By an agreement between the B, Railway Com- pany and the S. Railway Company, the traffic of the latter passed toll-free over a certain portion of the line of the former, in consideration of the traffic of the former passing toll-free over a certain equal portion of the line of tlie latter. A portion of the line of the B. Railway, affected by this arrangement, was within the respondent parish ; but no part of the line of the S. Railway was within that parish : — Held, that in estimating the rateable value of the B. Railway within the respondent parish, the value of the tolls which would have been received in respect of the passage of the traffic of the S. Railway Com- pany was to be considered as rent in kind earned by the land, but that such earnings must be subject to exactly the same deductions as if they had been received in money, and therefore the B. Company were entitled to deduct the value of the tolls payable by them in respect of the passage of their traffic over an equal portion of the line of the S. Railway. Ibid. Where a rate made in November was based on the last published half-yearly accounts of the com- pany made up to the 30th of June preceding, but in the interval between June and November the vahie of the working plant of the company had greatly increased, the company were held to be entitled 'o have their deductions calculated upon this increased value, and to have the rate amended accordingly, the Sessions upon the appearhaving been put into possession of tjie state of facts really existing when the rate was made. Ibid. Parish officers are to make a rate upon the sup- posed prospective value of the occupation ascertained from the latest evidence in their power as to ante- cedent value; and although they are justified in rating a railway company upon their latest published accounts, if that is the latest information reasonably procurable, yet if a new state of accounts is com- municated to them by the company before they make the rate, they ought to take such new state of circumstances into account if they believe it to be true. Ibid. The Great Western Railway Company was assessed to the relief of the poor of the parish of T in respect of two miles and a half, being a portion of a branch line which was originally constructed as an independent railway, but was afterwards incorpo- rated with the Great Western Railway by act of parliament, and was worked by the company as part of their entire railway. A certain number of engines and carriages and a separate staff of officers and servants were appropriated to the branch. No separate account of receipts and expenditure was kept in respect of the branch as distinguished from the rest of the railway. The branch could be worked as a separate railway under independent management, but at a greater cost and with a larger moveable stock than was bestowed upon it. It was found that the actual expenses of the company were not in the proportion of the actual gross receipts either on the branch or throughout the entire railway, nor were either such gross receipts or such expenses at one uniform rate per mile throughout the entire railway. The parties were agreed upon the gross annual receipts from the whole railway, and the gross annual receipts from the two miles and half in T. In order to ascertain the net rateable value of RATE; (A) Poor Rate. 635 the entire railway, the company claimed, in addition to annuiil allowances for the repairs of the permanent way and of the moveable stock, to deduct specific gums for their ultimate renewal and reproduction :-^ Held, that such a deduction ought to be allowed. Seginav. the Cfreat Western Sail. Co., 21 Law J. Rep. (h.s.) M.C. 84; 15 Q.B. Rep. 379. In order to ascertain the net rateable value of the two miles and a half in T, the deductions from the total gross revenue ought to be distributed on the parochial principle, by ascertaining what ex- penses are incurred in earning the gross receipts on the two miles and a half. This principle does not preclude a consideration of expenses wherever aris- ing locally, which are necessary for keeping the subject of rate at the value which is the measure of the assessment Ibid, Wiserever such expenses in fact apply equally to every mile of a railway, it is a convenient and allowable mode to arrive by a mileage division at the proportional part to be assigned to the miles in any particular parish. Ibid. The company in ascertaining the net rateable value of the two miles and a half in T, claimed to separate the branch from the rest of the railway as to all the expenses, except a small portion of the gene- ral expenses of the entire railway, and to divide the expenses of the branch thus separated on the mileage j)rinciple : — Held, that under the circumstances ■. Pmhall, 1 Sm. & G. 228. In the same case it being objected that the fiat was no proof of bankruptcy as against the wife, — Held, that the fiat being the adjudication of a Court of com- petent jurisdiction is until set aside proof of the bankruptcy against all parties. Ibid. In a settlement, executed by a person in embar- rassed circumstances, being in part merely merito- rious, but untruly recited as valuable, where the operation of the deed was to withdraw property from the creditors of the settlor, the Court declared the deed invalid as against creditors, and set it aside. Penkall v. Elmn, 1 Sm. & G. 258. Semite — advances made by a parent to a child, which formed a debt, but had ceased by lapse of time to be a legal obligation, are yet a sufficient eonsidera- tion to support a deed by way of family arrangement, but not against creditors. Ibid. The Court in order to give effect to voluntary set- tlements requires, where the settlor is the legal owner, everything to have been done which is requisite to transfer the legal ownership, and where he is the equitable owner, clear and distinct evidence of a de- claration of trust in favour of the donee. Bentley v. Machay, 15 Beav. 12. A father being entitled during the life of his son to the dividends on funds ■standing in the names of him- self and three other trustees, directed two of tho trustees to pay over the dividends for the future to his son. They acted on the dirgction, and the testator afterwards recognized the gift ; — Held, that there was a valid and effectual voluntary settlement which this Court would give effect to. Ibid. This Court will not assist a volunteer by making effectual an incomplete gift. Weak v. OUive, 17 Beav. 252. A B directed the certificates of some United States Bank shares standing in his name to be delivered to his nephew, and in a letter to him stated that "he made a free gift of them" to him. A B also exe- cuted a power for transferring the shares, but which was not acted on in A B's life. The shares being found in A B's name at his death were held to form part of his personal estate. Ibid. WARRANT AND ORDER. The prisoner forged and delivered as genuine to B, who owed money to A, a letter purporting to be written by A, and addressed to B, in which, after setting out the amount due from B, A was made to say, " Sir, — I hope you will excuse my sending for such a trifle," &c., " but I am obliged to hunt after every shilling": — Held, that the document was a forged "warrant" for the payment of money within the meaning of the statute il Geo. 4. & 1 Will. 4. c. 66. 6. 3. Semble — that it was also a forged " order" for the payment of money. Eegiaa v. DoMson, 20 Law J. Rep. (n.s.) M.C. 102; 2 Den. C.C. 75. WARRANT OF ATTORNEY. It is a good preliminary objection on shewing cause against a rule to rescind a Judge's order, that the affidavits on which the order was made have not been brought before the Court. PococJe v. Piclcering, 21 Law J. Rep. (n.s.) Q.B. 365. After a rule has been discharged upon such an objection, a second application may be made. Ibid. A warrant of attorney was attested as follows: — " Signed, sealed and delivered in the presence of me, Henry Clarke, who at the request and in the pre- sence of the said Joseph Heathcote Brooks, James Coglan and James Henry Pickering, have set and subscribed my name as the attorney on their behalf, attesting the execution hereof, having first read over and explained to them and each of them the nature and contents thereof:" — Held, {Erie, J. dissenting) that the attestation was invalid, on the ground that the witness did not by necessary implication declare himself to be attorney for the persons executing the warrant of attorney as required by the 1 & 2 Vict. c. 110. s. 9. Ibid. A warrant of attorney, prepared by the defendant, was addressed to H, an attorney, by name. The Warrant of attorney— waste. 735 plaintiff introduced H to the defendant, who adopted him as hia attorney to attest the execution of the warrant of attorney, aiid H accordingly attested it. H afterwards, at the request of the plaintiff, signed judgment and issued execution on the warrant as attorney for the plaintiff. The Court refused to set aside the warrant on the objection that the attestation by H was insufficient. Lemnson v. Syer, 21 Law J. Eep. (n.s.) Q,.B. 16; 2 L. M. & P. P.O. 557. The Court, setting aside a warrant of attorney, the judgment signed thereon, and subsequent proceed- ings, on the ground that one attorney had attested the execution of the warrant for both plaintiff and defendant, refused to deprive the defendant of the costs of the rule, unless he would undertake not to bring an action. Cooper v. Orwrd, 21 Law J. Rep. (n.s.) C.P. 197; 12 Com. B. Eep. 154. WARRANTY. The defendant, being the owner nf a ship, inserted the following advertisement in ihe Shipping Gazette: — "The fine teak-built barque Intrepid, A 1, 286i tons register, built under particular inspection at Coringa, in 1842, of the best materials, shifts without ballast, carries a good cargo, has a poop and excellent height between decks, and is well adapted for a pas- senger ship; length 91-^ feet, breadth 22 feet 8 inches, depth 16 feet 8 inches; now lying at the St. Katherine Docks. For inventories and further particulars apply to J. H. Arnold, 3, Clement's Lane, Lombard Street." The plaintiff, having seen the ship, entered into a written agreement to buy hir, "as she now lies in the St. Katherine Docks, agfreeable to the inventory annexed." This document commenced thus: — ** For sale by private contract the fine teak- built barque Intrepid," &c., pursuing the terms of the advertisement down to the words " St. Katherine Docks." Then followed this statement: "Hull, masts, standingand running rigging, with all faults as they now lie." Under this was the word " Inventory," which was followed by a list of the ship's stores and tackle; and the document concliided with these words : " The vessel and her stores to be taken with all faults as they now lie, without any allowance for deficiency in length, height, quantity, quality, or any defect or error whatever. For inventories and further parti- culars apply to J. H. Arnold, 3, Clement's Lane, Lombard Street, London." The defendant signed his name to this inventory, opposite to the list of the ship's stores. The vessel proved not to be teak- built, nor of class A 1, nor adapted for a passenger, ship: — Held, first, that the contract of sale incor- porated the whole of the above document, and not merely the list of stores headed " Inventory." Se- condly, that the defendant was not guilty of a breach of warranty; Tanjlor v. Bvllen, 20 Law J. Rep. (h.s.) Exch. 21; 5 Exch. Rep. 779. A tradesman who sells an article which he, at the time, believes to be sound, but which is actually un- sound, is not liable for an injury subsequently sus- tained by a third person, not a party to the contract of sale, in consequence of such unsoundness. Long- meid v. HolUday, 20 Law J. Rep. (n.s.) Exch. 430 ■ 6 Exch. Rep 761. A declaration in case byahusband and wife stated that the defendant, who was the maker and seller of certain lamps called HoUiday's lamps, sold to the husband one of these lamps, to be used by his wife and himself in his shop, and fraudulently warranted that it was reasonably fit for that purpose; that the wife, confiding in that warranty, attempted to nse it, but that in consequence of the insufficient maieiials with which it was constructed it exploded and burnt her. At the trial, the jury found that the accident had been caused by the defective nature of the lamp; but that the defendant was ignorant of this unsound- ness, and had sold the article in good faith: — Held, that the fraud on the part of the defendant having been negatived, the action was not maintainable by the wife, who was not a party to the contract. Ibid. "WASTE. A testator devised to A for life, a house and other real estate, " he committing no manner of waste, and keeping the premises in good and tenantable repair." In July 1837, A entered into possession, and in November 1844 the house was totally destroyed by an accidental fire. In 1845, A was found lunatic by inquisition, and the lunacy was dated from the 1st of October 1843. Upon petition" in lunacy of the remainder-men, who were also committees of the person and estate, — Held, that the hmatic'a estate was liable under the terms of the condition to reinstate the house ; and a reference was directed as to what amount ought to be expended in rebuilding, and out of what fund the expense should be paid; with liberty to the next-of-kin to take a case to law upon the construction of the condition. In re SMngley, a lunatic, 20 Law J. Rep. (H.s.) Chanc. 142; 3Mac. &G. 221. Several persons were entitfed successively to life estates in real property limited in strict settlemf nt : they became bankrupt, and their assignees cut down timber left for ornament and shelter. Upon a b)Il filed on behalf of H L, the then first tenant in tail in existence, who was ail infant, the assignees were ordered to bring the money into court ; this, with the accumulations, amounted to 26,133?. 2s. lOd. Two of the tenants for life died withcmt issue; H L attained twenty-one, and being still the first tenant in tail, and entitled to the first estate of inheritance, he presented a petition for payment to him of the fund and the accumulations : which were ordered to be transferred to hini. iushington v. Boldero, 21 Law J. Eep. (us.) Chanc. 49; 16 Beav, 1. A rector is justified in cutting timber growing on the glebe, provided that he specifically applies it to the repairs of the rectory-house and the buildings on the glebe ; but he is not justified in cutting such timber and selling it. Tlie VuJce of Marlborough V. St. John, 21 Law J. Rep. (n.s.) Chanc. 381; 5 De Gex & S. 174. The circumstance that the rector had applied a much larger sum in the repairs of the rectory-house than the proceeds of the sale of timber cut by him, was held not to be an answer to a case made against him of cutting and selling timber, in a suit instituted by the patron. Ibid. A Court of equity will not interfere to make a tenant for life liable in respect of permissive waste. Potoys V. Ekigrame, 24 Law .T. Rep. (n.s.) Chanc. 142; 4 De Gex, M. & G. 448; Kay, 495. 736 WATCHING AND LIGHTING— WATER AND WATERCOURSE. WATCHING AND LIGHTING. [See title Rate.] In the parish of K a district for ecclesiastical pur- poses had been assigned under the 1 & 2 Will. 4. c. 38. to the chapel of B, for which chapelwardens were appointed, but they had authority only in ecclesiastical matters, all parochial business of the d istrict being always transacted by the churchwar- dens of K at large. A notice, convening a meeting for the purpose of considering whether the 3 & 4 Will. i. 0. 90. (the Watching and Lighting Act) should be adopted in the B. district, was upon a requisition of the rate-payers of the district issued by the district chapelwardens. The meeting was held, and the act adopted in the district ; and in- spectors were appointed, who made orders on the overseers of K to levy certain sums of money for the purposes of the act. The overseers having neglected to obey these orders, an application was, more than two years after the adoption of the act, made to Justices for a distress warrant against the overseers, but they refiised to issue it : Held, that the act had never been legally adopted in the dis- trict, as the notice for convening the meeting could only be properly given under the act by tlie church- wardens of the parish at large, who were the persons usually calling meetings on parochial business, and that consequently the Justices were not bound to issue their distress warrant. Held, also, that the whole of the proceedings being void, the objection was open notwithstanding the time which had elapsed. Regina v. the Overseei-a of Kmgswinford, 23 Law J. Rep. (n.s.) Q.B. 337; 3 E. & B. 688. WATER AND WATERCOURSE. To an action by plaintiffs, as the occupiers of a water grist-mill, against the defendant, as owner of land on one side of the stream, for diverting part of the water, for the irrigation of his tenant's meadows, the defendant pleaded — first, not guilty; fourthly, that his tenant was possessed of four closes on the bank of the stream above the mill; that the defen- dant, as servant of his tenant, diverted small and reasonable quantities of WKter for irrigating the closes, which, excepting such a small quantity as was absorbed and used in irrigation, were returned to the stream above the mill ; that the diversion was not continuous, but only intermittent; that the quantity of water absorbed and lost was very small, and "inappreciable;*^ and that the diversion caused no damage to plaintiffs' mill. It was proved that the diversion was not continuous ; that it took place when the stream was full ; and that it caused no diminution of the water cognizable by the senses. The Judge, in directing the jury, suggested that the word " inappreciable " might mean so inconsiderable as to be incapable of value or price. Qucere whether this was a misdirection ? Emlrey v. Owen, 20 Law J. Rep. (n.s.) Exch. 212; 6 Exch. Rep. 363. SemUe — that, assuming the word "inappreciable" to mean something incapable of being estimated or valued, the plea was not proved ; and that rejecting that word, the verdict on that issue ought to have been found for the plaintiffs. Water is pullici juris in this sense only, that all may reasonably use it who have the right of access to it. No man can have any property in the water itself, except in that particular portion which he may choose to abstract from the stream, and take into his own possession, and that during the time of his possession only. Ibid. The proprietor of the adjacent land has the right to the UBU&uct of the streams that flow through it, not as an absolute and exclusive right to the flow of all the water in its natural state, but subject to the similar rights of all the proprietors of the banks on each side, with a reasonable enjoyment thereof. Ibid. An action will lie for the unreasonable and unau- thorized use of the water, although there may be no actual damage. Ibid. The same law applies to the corresponding rights of air and light. Ibid. Held, therefore, in the present case, that as the irrigation took place not continuously but only at intermediate periods, when the stream was full, and no damage was done to the working of the plaintiffs' mill, and the diminution of water was not percept- ible to the eye, the use of the water by the defendant was reasonable, and was not prohibited by law. Ibid. The plaintiffs were the occupiers of paper-mills, and had for twenty years last past, and previously to the 11th of September 1817, enjnytd the waters of the rivers B and G for the use of their mills. The act of parliament which incorporated the Grand Junction Canal Company provided that before any of the brooks, streams, &c. supplying the rivers B and G should be used for the canal, and the B and G should be diminished, a reservoir should be made for collecting water to supply such rivers and the mills with a quantity equal to what should be taken for the supply of the canal, and that when there should be a want of water in the rivers for the supply of any mill, water should be let off from the re- servoirs to such rivers. Actions having been brought by the plaintiffs against the company for not making the reservoir, an agreement wa« ultimately made be- tween them and the company that the latter would apply for an act of parliament, and that they should not make any alteration in the state of the B and G, or any diversion of their waters. An act of parlia- ment was afterwards passed, which enacted that it should not be lawfift for the company to divert any of the waters of the B and G. In 1 849 the defen- dants sank a large well to the depth of seventy-two feet, close to the summit level of the canal, and by means of pumps and a steam-engine pumped into the summit level of the canal a quantity of underground water, which would otherwise have flowed under- grouud into the river B, and also other underground water, which would otherwise have percolated through the intervening chalk underground into the B, and would have flowed to the plaintiffs' mills. A portion also of the water of the B, which would have flowed to the plaintiffs' mills, was, by means of such pump- ing, drawn off through the intervening chalk, out of the river into the well, so that the plaintiffs in each of the above cases were prevented from working their mills as beneficially as they would have done: — Held, first, that as to the water which had been taken from the river, not by the reasonable use of it by another riparian proprietor, but by the digging of a well, which was clearly a diversion, an action would WATER AND WATERCOURSE— WATERMEN. 737 lie at common law against the company for the in- jury done to the plaintiffs. Di^Mmon v. «Ae Grand Jimction Canal Co., 21 Law J. Rep. (n.s.) Exch. 241; 7 Exch. Rep. 282. QacEre — whether the action would have been maintainable if it had appeared that the defendants were ignorant, and could not by any degree of care have ascertained before making the well, that it would have the effect of abstracting the water, and when they discovered that it did have that effect, could not have repaired the injury. Ibid. Secondly, that an action would lie at common law for the abstraction of the water, which never formed part of the river, but was prevented from doing so by the excavation of the well, whether the water was ■part of an underground watercourse, or percolated through the chalk. Ibid. Thirdly, that the taking away, by means of the well, of the water of the rivers or the supply of the rivers from springs and percolation, was a breach of the agreement and also of the act of parliament; the meaning of which was, that the defendants should not take water from the waters or springs which in their natural course would form part of the rivers in their then existing state. Ibid. Lastly, that proof of actual loss of profit by the plaintiffi, by their being unable to work the mills as before, was not necessary to enable them to recover; nor was it necessary at common law, if the defen- dants were not authorized to make the well. Ibid. A special verdict found that a pit in the plaintiff's close, adjoining a close of the defendant, in and since 1796hacl been principally supplied with water coming from the defendant's close through an agricultural tile drain for the better cultivation of the land, and which water flowed thence into a ditch and then into the pit. That the drain came from a hill-side through the defendant's close, through a wet, boggy soil, and not from any ascertained source, and that it aided in effecting the general surface drainage of the defen- dant's close. That the defendant, for the purpose of more effectually draining and cultivating his close, deepened the course of an old drain, and by making a communication between it and the drain which fed the plaintiff's pit, drew the water from the pit. The immediate object was to get a better fall of water from the defendant's close which previously had been so wet and boggy as to be comparatively unproduc- tive: — Held, that under the above circumstances no grant of the flow of the water to the plaintiff was to be presumed, and that the plaintiff had no right of action against the defendant for the diversion of the water. Oreatrex v. Bafwwr^, 22 Law J. Eep. (n.s.) Exch. 137; 8 Exch. Rep. 291. ' Permission was obtained from E and other land- owners, on behalf of a body of subscribers, to make a watercourse through their respective lands to sup- ply the town of G with water. It was alleged that the subscribers agreed to pay to E 2s. td. a^year, but this was denied. E subsequently diverted the water- course into the old channel; and upon a bill filed by several of the subscribers, — Held, upon its being amended, and made on behalf of the plaintiffs, and others whose names and residences were unknown, heing subscribers to the fund, that the plaintiffs were entitled to the use of the watercourse passing under the lands of E; and an injunction was granted to re- strain the defendant from preventing, obstructing, or DioEST, 1850—1856. interfering with the flow of water, or with the plaifi tiffs' use of the watercourse. The Duke of Devonshire V. Elgin, 20 Law J. Rep. (s.s) Chanc.' 49S; 14 Beav. 530. WATERMEN. The 37th section of the Watermen's Act (7 & 8 Geo. 4. c. Ixxv.) imposes a penalty on any person (other than a freeman of the Watermen's Company or an apprentice to a freeman or widow of a freeman) who shall work or navigate " any wherry, lighter, or other craft" from or to any place or places or ship or vessel within the limits of the act : — Held, that this does not extend to a person who works a steam- tug for the purpose of towing vessels on the river. Reed v. Ingham, 23 Law J. Eep. (n.s.) M.C. 1S6; 3 E. & B. 889. The appellant, who was not a freeman of the Comr pany of Watermen and Lightermen of the River Thames, or an apprentice to a freeman, was con- victed of an offence under the 37th section of the 7 & 8 Geo. 4. 0. Ixxv., which inflicts a penalty oiji any person not a freeman or an apprentice, &c. who, except as thereinafter mentioned, " shall at any time act as a waterman or lighterman, or ply, or work, or navigate, &c. any wherry, lighter, or other craft upop the said river from or to any place, &c. within the limits of this act for hire or gain." By the 101st section of the act it was enacted that this section should not extend to any western barges, and that all flat-bottomed boats and barges navigated from the town of Kingston, or any place beyond the said town, should be deemed western barges, and might be navigated on the river as far as London Bridge, The appellant was employed by the Great Wes-. tern Railway Company at a weekly salary in navi- gating the company's barges upon the river Thames, and at the time of the alleged offence the appellailt had the command of one of the company's barges, laden with goods in the possession and care of the company as common carriers, and which were in the course of being forwarded for delivery to the owners and consignees. The goods had been laden on board the barge at a private basin of the Grand Junction Canal, adjoining one of the company's stations and without the limits of the act. The barge was towed along the canal to the river, and steered by the ap- pellant upon the river and within the limits of the act, to a private wharf of the company west of Lout don Bridge. The barge, was flat-bottomed and of the same build as certain barges known as " western barges," and before it was purchased by the company it was known as a western barge, and was worked and navigated upon the river from Reading and places west of Reading, to the same wharf :— Held, that the barge was not, at the time of the offence, a western barge within the meaning of the lOlst section, and that the appellant had been properly convicted under the 37th section. Tibhle v. Beadon, 24 Law J. Rep, (jsr.s.) M.C. 104. By the 57th section of the Thames Watermen and Lightermen's Act, 7 & 8 Geo. 4. c. Ixxv., power is given to the Court of Mayor and Aldermen of the city of London to make such rules and by-laws as they should think proper for the government and regulation of the freemen of the Company of 5B 738 WATERMEN— WAY. Watermen and Lightermen, and the boats, vessels and other craft rowed or worked within the limits of the act, and to annex reasonable penalties and for- feitures, not exceeding 51., " provided the same rules and by-laws be not inconsistent with any of the laws of this kingdom or the provisions and directions in this act contained, or any of them." Under this section a by-law was made, which imposed a penalty of 40s., or not less than 10s., upon any freeman of the said company who should " set at work to row, or permit or suifer to be set at work to row, or in any manner navigate any lighter, barge, &c., within the aforesaid limits, any other person not being a freeman of the said company," &c. The appellant, a freeman of the company, employed a non-freeman, and permitted him to be set at work to row and navigate a barge within the limits of the act, and was convicted of an offence against the by-law: — Held, that, although there were no sections in the act which went to the extent of the by-law in pro- hibiting the employment of non-freemen in rowing and navigating barges within the limits of the act, still the by-law was good under the power conferred by the 57th section, there being nothing in its pro- hibition inconsistent with law or the provisions and directions of the act ; and that the conviction there- fore was valid. Edmonds v. the Company of Watermen and Lightermen, 24 Law J. Rep. (n.s.) M.C. 124. WAY. To a declaration in trespass quare clausum the defendant pleaded that he was occupier of a close called Backside Mead, with certain lands there- unto adjoining, and of another close called Mead, and divers, to wit, two other closes next adjoining thereunto, and justified under a right of way from the said Backside Mead over the hens in quo, and thence into the said Mead for the better use, occu- pation, and enjoyment of the said Backside Mead, the said lands adjoining thereto, and the said Mead and the said adjoining closes respectively : — Held, on special demurrer, that the plea stated with suf- ficient certainty the closes in respect of which the said right of way was claimed. Holt v. Da/w, 20 Law J. Rep. (n.s.) Q.B. 365; 16 Q.B. Rep. 990. The plaintiff sold to the defendant two dwelling- liouses, a coach-house and stables, and a field, together with all ways usually held, occupied, or enjoyed therewith, with free liberty of ingress, egress, and regress for the defendant, or for cattle and carriages, over the carriage road leading to the said dwelling-houses and stables. The defendant after- wards made a gate from the field which abutted upon the carriage road into the road at an intermediate part thereof, and drove horses and carriages along the road into the field, and back again ; — Held, that he was liable in trespass, the right of way being a right of way to the dwelling-houses, coach-house, and stables only. Hennirng v. Bv/melt, 22 Law J. Bep. (H.a.) Exch. 79; 8 Exch. Rep. 187. D was seised in fee of five closes ; two of them, named the Rye Holme close and the Moat close, were separated by two of the others from the only available highway. From 1823 the road A B was used by the tenants of the Rye Holme close, it being the most convenient road to the highway. In 1839 D sold the Rye Holme close to M, one of the other closes to N, and the remainder, over which the road A B passed, to E. The deeds of con- veyance bore different dates, but were all executed on the same day, and the order of priority could not be ascertained. In none of them was there smy special grant or reservation of any particular way, but the conveyance to M contained the usual words " together with all ways, roads, paths, passages, rights, easements, advantages, and appurtenances whatsoever, to the said close belonging or apper- taining." The occupier of Rye Holme close used the road for several years subsequent to the con- veyance. In 1842, E conveyed to the defendant part of the land, over which the road A B passed, at which time the plaintiff was tenant of the Rye Holme close under M. In an action to try the right of the plaintiff to use the road, — Held, that the plaintiff was entitled to the way by implied grant, if the conveyance to M was first executed ; or, if the conveyance to E was first executed, that the right of way was reserved to D, and subsequently passed to M, as appurtenant to Rye Holme. Fm- nvngton v. GaUand, 22 Law J. Rep. (n.s.) Exch. 348; 9 Exch. Rep. 1. By the Regent's Canal Act for enabling the Canal Company to purchase lands,' and which incorpo- rated the Lands Clauses Act, 1845, the company were authorized to take a field called " Clayfield," held by one W under a lease from the Warden and Fellows of All Souls, Oxford. Notice to take this field having been given under the act, and the par- ties being unable to agree as to the terms, an arbi- trator was appointed under the act to settle the question of disputed compensation. The company had taken a portion of Clayfield, but had left the rest in the possession of W, without, however, giving him any approach or access to it whatever ; but they had delivered to the Warden and Fellows a grant of a right of road to that portion which it was stipu- lated was to enure for the benefit of W and his tenants, the way so granted being more commodious than before. The arbitrator awarded to W a pecu- niary compensation and the lands taken by them. An application to set aside the award having been made on the grounds that the arbitrator had omitted to adjudicate on the right of way to Clayfield, and that he had not apportioned the rent of the leasehold land, or determined in what proportion the rent should remain chargeable, — Held, that the arbitrator bad acted rightly under the Lands Clauses Act in awarding a money compensation only, and that he would have exceeded his powers if he had adjudi- cated either on the question of the right of way, or of the apportionment of the rent. Ware v. the Regent's Canal Co., -23 Law J. Rep. (n.s.) Exch. 146; 9 ExL'h. Rep. 395. A plea under the statute 2 & 3 Will. 4. t. 71. of a user of a way as of right for twenty years over a close, is not supported by proof of a user of the way for part of the twenty years while M was the land- lord and owner as well of the messuage in respect of which the right was claimed as of the close over which it was exercised, and for the rest of the period when the defendant had acquired the freehold of the messuage. Winahi'p v. Hudspeth, 23 Law J. Rep. (N.s.) Exch. 268 ; 10 Exch. Rep. 5. WAY— WEIGHTS AND MEASURES. 739 A right of way of necessity can only arise by grant, express or implied. Proctor v. Hodgson, 24 Law J. Rep. (n.s.) Exch. 195; 10 Exeh. Rep. 824. Where, therefore, to an action of trespass g^w. cl. fr. the defendant pleaded that one N S until and at the time of his death was seised as well of the said close in which, &c. holden by him of the manor of H, as also of another adjoining close, called Y, holden of the manor of T, and that the said N S had no way to close Y except over the said close in which, &c., and that on his death the said closes respectively escheated to the lords of the manors of H and T, and that the lord of T, by virtue of the premises, from and after the death of the said N S until and at the time when, &c., necessarily had and still of right ought to have a certain necessary way on foot, &c., over the said close, Sec, to and from the said close called Y, at all times of the year, for the necessary use and occupation of the said close called Y, the same being such way as had been and was used in the lifetime and until and at. the time of the death of the said N S, and the most convenient way over the said close in which, &c., to the said other close; and the plea then justified the trespasses as the servant of the lord of the manor of T : — Held, after verdict for the defendant on an issue on this plea, that the plaintiff was entitled to judgment Tion obstante veredicto. Held, also, that, even assuming escheat were equivalent to grant, the plea would have been bad for the want of an averment that the lord of the manor of T had no other way at the time of the trespass. Ibid. Commissioners having, before the passing of the Municipal Corporation Act (5 & 6 Will. 4. c. 76), been empowered by a local act of parliament to levy rates not exceeding 2s. in the pound in any one year for paving, lighting, watching and improving the streets of a town, were, by the Municipal Corpora- tion Act, relieved of the duty of watching, and were, by the effect of the same act, prevented from levy- ing rates of more than Is. 3d. in the pound in any year: — Held, that although, if the powers of the Commissioners had been sought to be affected by a private act, they might have applied funds raised by them under their act in opposing such intended private'act, yet they could not apply any such funds in soliciting a new act to obviate the consequences of the public general act, or to extend the powers originally given to them by their local act. AUoritey General v. Eastlake, 11 Hare, 205. WEIGHTS AND MEASURES. Under "the 28th section of the 5 & 6 Will. 4. c. 63, an inspector of weights and measures is not authorized to seize and take away as forfeited, a weighing machine found to be incorrect and unjust. Thomas v. Stephenson, 22 Law J. Rep. (n.s.) Q.B. 258; 2 E. & B. 108. Section 39. of the same act provides, that in all actions for anything done in pursuance of the act, or in the execution of the powers or authorities thereof, the defendant may plead the general issue and give this act and the special matter in evidence, and that the acts were done in pursuance or by the authority of the act; and if they shall appear to have been so done, the jury shall find for the de- fendant, upon which verdict, &c., the defendant shall have his costs, &c. Section 40. further pro- vides that no plaintiff shall recover for any irregu- larity, trespass, or other wrongful proceeding made or committed in execution of the act, if tender of sufficient amends shall have been made before ac- tion brought, and in case of no such tender made that the defendant shall be at liberty, by leave of the Court, before issue joined, to pay money into court, as in other actions: — Held, that an inspector, who had illegally seized a weighing machine, under a hand fide belief that he was acting at the time under the authority of the act, was entitled to the protec- tion afforded by the 39th section; but that, con- sidered with the 40th section, such protection did not extend to entitle the inspector to a verdict in an action against him for the illegal seizure. Ibid. To an action for goods bargained and sold, the defendant pleaded that the contract for the sale and the sale by the plaintiff were made by a measure other than those authorized by the 5 & 6 Will. 4. c. 63, to wit, by the old gallon measure. Replica- tion that the contracts were for the sale of palm oil, at a certain price per gallon old measure, the said oil to be procured by the plaintiff's testator in Africa, and to be shipped there on board the defen- dant's vessel sent there for the purpose, the quality of the oil to be approved of before it should leave the shore; and that the contracts as to the measure- ment, delivery and receipt of the oil were wholly to be performed in parts beyond the seas. Rejoinder, that the contracts were made in England; and that the palm oil was to be paid for by the defendant in England : — Held, on demurrer, that this contract was not in violation of the Weights and Measures Act, 6 & 6 Will. 4. c. 63, as that act was intended to apply to bargains and sales in England, which were to be performed by measuring the articles in this couutry. Sosseter v. Oahhnan, 22 Law J. Rep. (U.S.) Exch. 128; 8 Exch. Eep. 361. A sale of wheat took place at a price per " hob- bit." It appeared that the " hobbit" was a term used in Wales to express a quantity consisting of four pecks, each peck weighing forty-two pounds; and that the wheat in question had been delivered to the purchaser in sacks containing six pecks or 252 pounds, and the custom was so to deliver it, the sacks on such occasions being weighed, and the quan- tity in each sack increased or reduced to 252 pounds: Held, that this was to be considered a sale by weight and not by measure, and, therefore, not contrary to the provisions of 5 Geo. 4. c. 74. s. 15. and 5 & 6 Will. 4. c. 63. s. 6. Hughes v. Humphreys, 23 Law J. Rep. (n.s.) Ci.B. 356; 3 E. & B. 954. A contract for the sale of goods by " the ton long weight" is legal and valid, as " the ton long weight," though it consists of 240,000 pounds avoirdupois, and is more than twenty hundredweight statutory measure, is yet a multiple of the standard pound. QUes V. Jones (in error), 24 Law J. Rep. (n.s.) Exch. 259; 11 Exch. Rep. 393: affirming s. c. Janes v. Giles, 23 Law J. Rep. (s.s.) Exch. 292; 10 Exch. Rep. 119. 740 WESLEYAN TRUSTS— WILL. WESLEYAN TRUSTS. A Methodist chapel was conveyed to trustees upon trust to mortgage and pay money already advanced and for repairs, and subject thereto to permit the chapel to be used exclusively by Methodist preachers duly appointed by the Conference, and with power to sell in case a new chapel should be required. The chapel was mortgaged, and ultimately the defen- dant Hardy became mortgagee; a new chapel was then built, which was conveyed to trustees, one of whom was Hardy, upon trusts similar to those of the old chapel. It was then mortgaged, and Hardy became subsequently mortgagee of this chapel also. Hardy applied for his mortgage-money lent upon both chapels, and not being able to obtain payment, the old chapel was sold by the trustees to Turner, who was a trustee of the new chapel, and Hardy transferred his mortgage on the new chapel to Hill, who brought an action of ejectment to recover possession. The bill was filed by two preachers ap- pointed by the Conference against all the trustees, alleging that a scheme had been formed by certain Wesleyan reformers to take all the chapels in their power out of the hands of the Conference, and to allow the reforming preachers to use them; that the trustees took part with the reformers, and had allowed preachers not appointed by the Conference to use the old chapel contrary to their trusts. The bill prayed that the trusts of the original deeds might be carried into effect; that the trustees might be restrained from preventing the plaintiffs from using the chapels for divine service; that they might be restrained from any longer acting in the trusts of those deeds, and that the action by Hill might be restrained : — Held, upon motion for an injunction, that the title of the mort^ gagees was paramount to the trusts of the original deeds, and the plaintiffs could have no relief except upon payment of the mortgage-money. Injunction refused. Attorney General v. Ha/rdy, 20 Law J. Hep. (n.S.) Chanc. 450 ; 1 Sim. N.S. 338. In 1750 land at B was purchased by subscription, and a chapel was erected thereon. By a deed, dated in 1751, this land and chapel, described as in the occupation of J N (who was an assistant preacher associated with John Wesley), was conveyed to trustees, upon trust to permit John Wesley or such other persons as he should appoint, from time to time during his life, to have and enjoy the free use and benefit of the said premises, to preach and ex- pound God's Holy Word, with similar trusts for C W and W G and their respective appointees, successively, during their respective lives; and, after the decease of the survivor, the trustees were to appoint preachers monthly or oftener to preach in the same manner as near as might be as God's Holy Word was then preached or expounded there. In 1749 John Wesley, assisted by the Conference, had issued certain regulations for the settling of chapels, by which, among other things, it was provided that after the death of the survivor of J W, C W and W 6, the trustees should permit such persons as should be appointed at the yearly Conference of the people called "Methodists" to use the chapels for the purposes aforesaid. By a deed of 1 782, reciting that in 1751 certain pious persons called " Method- ists" had purchased the said land at B, and had erected a chapel thereon, and that the members of the said society had agreed to enlarge the chapel, the trusts thereof were declared corresponding with those of the deed of 1751, except that after the death of the survivor of J W, C W and W G, certain other persons were associated with the trustees in the appointment of a preacher. By a deed-poll of 1784, executed by John Wesley, the appointment of preachers was vested in the Conference. An information was filed by some of the members of the Wesleyan body at B, praying relief on the ground that the provisions of the deed did not cany out the paramount object of the founders, and that the appointment of preachers by the trustees was contrary to the constitution of Methodism : — Held, upon appeal, varying the decree below, that the deed of 1751 being plain and unambiguous in its terms, parol evidence was inadmissible to shew a paramount intention, or thatsuch appointment by the trustees would clash with the general system of Methodism ; and the information was dismissed. Attorney Gene- ral V. Olapham, 24 Law J. Rep. (n.s.) Chanc. 177; 4 De Gex, M. & 6. 591: reversing 23 Law J. Rep. (N.s.) Chanc. 70; 10 Hare, 540. Trustees of a. Wesleyan Methodist chapel ceasing to be members of the Methodist body, held not to be a ground for their removal from the trusteeship, where the trust deed contained no provision on the subject; the dictum in Attorney General v. Hardy notwithstanding. Ibid. WILL. [See Devise — Legacy — Sbttlembkt.] (A) Construction of Wills. (a) General Points. (J) Power to appoint Trustees. (c) Conversion of Pa^hable Property, {d) Misdescription and AmMguity, dence to explain. (B) Validity. (a) Attestation. (b) Alteration and Interlineation. (G) Establishing. ( D) Publication and Republication. (E) Revocation AND Canoellaiion. (F) Spoliation. (G) Codicil. (H) Election undbb. (A) Construction of Wills. (o) General Points. A testator devised and bequeathed all his real and personal estate to trustees upon trust (after certain life estates) for the heir-at-law of his family then living, whosoever the same might be : — Held, that the next-of-kin of the testator according to the Statutes of Distribution had no interest under the above gift. Tetlow V. Askton, 20 Law J. Rep. (n.s.) Chanc. 53. A, the father of C, by his will, gave the income of his residuary estate (after the death of B the mother of C) to trustees, upon trust, to apply it as they should think proper for the benefit of C; and died in 1816. B, by her will, gave the income of her residuary estate to trustees, upon trust to apply a sufficient WILL; (A) CoNSTEUOTioN OP Wills. 741 part of the income for the maintenance of C during hia life, aud declared that, in case there should be a (surplus of income, sucb surplus should be considered as principal, and invested accordingly, and gave such principal on the trusts therein mentioned, and died in 1832. C was found a lunatic in 1818. The annual sums allowed for the maintenance of C were less than the annual income of both the estates of A and B : — Held, that the income of B's estate was to be first applied for the maintenance of C, in exoneration of the income of A's estate. Methold V. Turrit, 20 Law J. Kep. (n.s.) Chanc. 201; 4 De Gex & S. 249. The will of a testator contained the clauses fol- lowing : — " Let mj debts be paid. Let all my goods and chattels be sold, and the fund accumulated, except so lar as is needed for the comfortable settle- ment of the family, except 2001. a year to be laid by as a marriage portion for my daughter A A C. My son E C C is heir to the whole real estate": Held, that the above directions were void for uncertainty, and that the testator was to be taken to have died intestate, both as to his real and personal estate. Jackson v. Craig, 20 Law J. Rep. (n.s.) Chanc. 204. A testator, by his will, gave certain shares of his residuary personal estate to certain legatees. He then directed that " the whole of the legatees should have the benefit , of survivorship between them, in the event of any one or more of them dying without leaving issue": — Held, that "the dying without leaving issue" did not refer to death in the lifetime of the testator. iSmith v. Stewart, 20 Law J. Eep. (n.s.) Chanc. 205; 4 Ue Gex & S. 253. G T was entitled to a life interest in freehold and copyhold estates, and also in three sums of stock; the legal estate in the freeholds was vested in trustees, but the copyholds had never been surrendered to them, and many of the freehold and copyhold lands were let together; the three sums of stock were stranding in the names of the trustees in the Bank of England. G T was also absolutely entitled in re- mainder to a moiety of the freehold and copyhold estates, and in the stock. G T upon his second marriage, by a covenant and his bond, secured an annuity of 200^. a year to his wife for life, and by his will he confirmed the settlement, and said, " I charge all and every my freehold hereditaments and estate and monies standing in my name in the pubUc funds with the payment of the annuity to my wife; and subject to the said annuity, I devise and be- queath the same freehold hereditaments and estate and monies in the funds to my niece and godchild, S Q, her heu-s, executors, administrators and assigns, with remainder to her two sisters, &c. All the rest and residue of my real and personal estate, subject as to my personal estate to the payment of my just debts, &c. and legacies, I devise and bequeath unto my wife, her heirs, executors, administiators and assigns." The testator had no monies standing in his name, and upon a suit by the devisee, Held, that the testator meant his interest in the stock standing in thenameof the trustees, to which he was entitled in remainder. Quermell v. Ttimer, 20 Law J. Hep. (N.s.) Chanc. 237; 13 Beav. 240. Held, also, that the personal estate, as the primary fund for payment of the annuity, was not exonerated by the charge made upon the freeholds and the monies in the funds. Ibid. Held, also, in the absence of any intention appa- rent on the will, that the word " estate " did not in- clude the copyholds, and that they did not pass. Ibid. A gift to all the grandchildren of the testatrix, except , is not void for uncertainty, but takes effect in favour of all the grandchildren as a cla^s. Jllingworth v. Coohe, 20 Law J. Rep. (u.S.) Chanc. 612 J 9 Hare, 37. A testatrix directed her executors to pay the debt which she owed to two persons named, and for the security of the payment of which she had given her promissory note. The promissory note was volun- tary : — Held, that whether this was a good debt or whether it was a legacy was a question for a court of law, and that it was not a case in which the Court could call in the assistance of a common law Judge under the statute 14 & 15 Vict. c. 83. s. 8. Longstaff v. Rennison, 21 Law J. Rep. (n.s.) Chanc. ti22; 1 Drew. 28. Under a bequest for all and every the " issue" of E living at the decease of her and her husband, but if any of the issue of £ should die in the lifetime of the survivor of E and her husband leaving issue, the issue of such issue so dying should take the share his parent would have been entitled to : — Held, that the word " issue " meant children, and that if the testator had intended to express descendants, the words "issue of issue" would not have had any meaning. Pope v. Pope, 21 Law J. Rep. (k.s.) Chanc. 276; 14 Beav. 591. A testator bequeathed all the rents and arrears of rent, with timber felled, and other annual profits due to him at the time of his decease, from his Berwick Hill estate, unto the person or persons who should be entitled to the freehold " and " inheritance of the same estate in possession at his decease. On the death of the testator, his brother became tenant for life of this estate : — Held, that the words " freehold and inheritance " must be read " freehold or inheri- tance," and that the tenant for life was entitled to the rents, &c., specified in the above clause. Staple- ton V. Stapleton, 21 Law J. Rep. (n.s.) Chanc. 434; 2 Sim. ^.iS. 212. Held, also, that the tenant for life was entitled under this bequest to the rents payable from the last quarter day up to the day of the testator's death, and also to certain bricks, tiles, and brick-earth being upon the estate at the death of the testator. Ibid. A testatrix gave her real and personal estate to trustees, in trust for her niece for life; after the decease of her niece without issue, (which happened,) and of her niece's mother, she directed the real estate to be converted ; and as to one moiety of her residuary estate she gave it amongst the child and children of A A, and the issue then living of any child or children of A A dying in the lifetime of the niece, and to their respective execu- tors, administrators and assigns; and in case all or any of the children of A A should die without issue in the life of the niece, the share of him, her, or them so dying was to go " amongst the child and children of M H living at the decease of the niece, and to their respective executors, administrators and as- signs." The niece died in 1830 unmarried and with- out issue, having by will given her personal estate to her mother, who died in 1850. A A had seven children, but two alone, H C and M H, married an4 742 WILL; (A) CoNSTBUCTioN OE Wills. had issue. H C waa alive at the date of the will, but died in 1847, leaving J C her husband and J A C and R L her two only children. M H died in 1820 in the life of the testatrix and of both the niece and her mother. Seven of her children were still living, and this moiety of the residuary estate was claimed by J C as the husband and personal repre- sentative of H C, by J A C and R L as children of H C, by the children of M H and the personal representative of the niece : — Held, as to one-half of this moiety, that the children of M H were entitled, and as to the other half of the moiety that it was undisposed of, and passed to the next-of-kin of the testatrix. CouMhurst v. Carter, 21 Law J. Rep. (n.s.) Chanc. 555; 15 Beav. 421. A testator, by his will, bequeathed all the residue of his real and personal estate to his executors, upon trust to pay his wife the income and profits thereof, so long as she should continue his widow. A part of the personal estate of the testator, at his death, consisted of a debt of 12,000i. payable by annual instalments of 1,.500Z., with interest at 51. per cent, from the death on the debt or such part as for the time being should remain unpaid : — Held, that the tenant for life was entitled to il. per cent, on the debt or such part as should remain unpaid, and that the other 1^. per cent, ought to be invested for the benefit of the tenant for life and those entitled in remainder. Meyer v. Sinumson, 21 Law J. Rep. (n.s.) Chanc. 678; 5 DeGex&S. 723. A testator gave his freehold estate and " property whether real or personal" to M S for life, and after her decease he gave ^1 his said freehold estate and property to S H and'his wife for their lives, and after their decease he gave all his said freehold property to their children for an estate of inheritance in fee simple; but in case none should attain twenty-one, he gave his freehold estate and property to W M, his heirs and assigns, in fee simple. He charged his personal estate with the payment of several legacies, and the residue of what he should die possessed of was to become the property of M S : — Held, that M S was entitled to the personal estate, and that S H, his wife and children, took no interest in the personal estate. SoUingsworth v. Shakeshaft, and Andrews v. Shakeshaft, 21 Law J. Rep. (h.s.) Chanc. 722; 14 Beav. 492. A testator gave all his real and personal estate whatsoever to his wife and son, whom he appointed executrix and executor, upon trust, to permit his wife during her life to receive the clear rents, issues and profits, interest, dividends, and annual proceeds thereof, subject to all out>goings; and upon the death of his wife, then, as to all his said devised and bequeathed freehold and residuary real and personal estate, with their appurtenances, and of which his wife was to have the clear yearly income for her life, upon trust for his son absolutely : — Held, that cer- tain leaseholds belonging to the testator were to be held by his widow in specie, no intention of conver- sion being expressed, ffa/rris v. Poyner, 21 Law J. Rep. (n.s.) Chanc. 915; 1 Drew. 174. Shortly after the testator's death his widow was called upon to make good the dilapidations to the leaseholds, under a covenant in the lease : Held, that these expenses, which the widow had paid out of her income, were properly chargeable upon the corpus of the estate. Ibid. W B, by a will, dated the Sth of October 1837, gave all his property, real and personal, to trustees, to be divided between C S and the three boys of W W. By another will, dated the 13th of April 1838, he gave his household goods to C S, and he gave all his real estates to her for life, with remainder to W W for life, and after the decease of both, to W and G, the sons of W W; and by another testa- mentary instrument, dated the same day, he ap- pointed C S and W W his executors. By another instrument, without a date, the testator gave his real estate to trustees, to divide the rents into three por- tions, and pay one-third to C S for life, and as to the other two-thirds to all the children of W W, or to permit him to receive the rents for their maintenance, &c., until their arrival at twenty-one. The testator then directed his trustees, out of the rents to pay his debts, &c., and the costs of executing the trusts of his will : — Held, that revocation by inconsistency of disposition will only affect the prior will to the extent that such inconsistent disposition is operative; that the fourth will revoked the first altogether, and the second so far only as it related to real estate; that by the fourth will, two-thirds of the real estate were devised to the children of W W in fee simple; that the remaining third was given to C S for life, and that the reversion in fee in such third was undisposed of, and passed to the heir-at-law of the testator, but charged with debts, legacies, &c.,in exoneration of the testator's personal estate. Plenty V. West, 22 Law J. Rep. (n.s.) Chanc. 185; 16 Beav. 173. Bequest, by a will, dated in 1819, of a sum of stock to trustees, upon trust to pay the dividends to A, the wife of B, for life, and, after her death, if she should have no issue living at her death, to B for life; but, if she should leave issue, then to pay a moiety of the dividends to B for life, and the other moiety to be applied for the benefit of such issue, as the trustees should think fit ; and as to a moiety of the capital, after the death of A, and after the death of the survivor of A and B as to the whole of the capital, to divide the same among the children of A; and if A should die in the lifetime of B, leaving issue, and such issue should die in the lifetime of B under age and unmarried, then to pay the whole of the income to B for his life; and, after the death of the survivor of A and B, and the failure of issue of A, to transfer the stock to C. A died without issue, leaving B surviving: — Held, that by the word " issue" was meant children, and that by the words at the end of the will, " failure of issue," was meant failure of children. Bryan v. Mansion, 22 Law J. Rep. (h.s.) Chanc. 233; 5 De Gex & S. 737. A testator gave the residue of his estate to trustees to pay the dividends of 1 ,500i stock to A for life, and after to divide the dividends between E B and F R and the survivor of them. He gave the residue of his freehold, copyhold and leasehold estates, and all other his estate and effects upon trust to pay the dividends, interest, rents and annual produce to his wife, E B, for life, with remainder to F R for life, with remainders over. The testator had leasehold property, canal and insurance shares, and Dutch bonds. F R died : — Held, affirming a decree of the Court below, first, that E B was only entitled to a life estate in the dividends of the l,600i. stock ; and secondly, that she was not entitled to enjoy the WILL; (A) Construction op Wills. 743 shares and Dutch bonds in specie, though she was as to the leaseholds. Blamn v. Bell, 22 Law J. Rep. (n.S.) Chanc. 236 ; 2 De Gex, M. & G. 775; 21 Law J. Rep. (n.s.) Chanc. 811 ; 5 De Gex & S. 658. The testator bequeathed certain shares of the residue of his estate to trustees, upon trust to accu- mulate for such of his issue as his widow should by deed or will appoint. The widow by her will, refer- ring to the power, appointed certain definite sums to the issue, on the express supposition that the shares would realize a certain sum per share; but if not, then she directed that the legatees should receive in proportion to their respective bequests : Held, that the appointment extended to the accumula- tions of the shares. Thompson v. Teulon, 22 Law J. Rep. (n.S.) Chanc. 243. A testator, by his will, bequeathed his personal estate to trustees, upon trust to pay the income to his two sisters, A and B, for their lives, and to the survivor for her life; and then to pay the capital to their children; and in default of such children, to pay the income to C, his brother, for his life, and then to pay the capital to his children ; and in de- fault of such children, to the testator's next-of-kin. The testator, by a codicil, declared that he left his effects, failing his brothers and sisters and their heirs, to E. The testator had'two sisters only, A and B, and two brothers only, C and D, who all died with- out children : — Held, that the bequest in favour of E took effect. In re Pattison's Trusts, 22 Law J. Eep. (n.S.) Chanc. 286 ; 5 De Gex & Sm. 591. ■ A testator directed his trustees to hold 20,000i. Bank annuities, and pay the dividends to his son for life, with restrictions on alienation; provided that if his son should marry with the consent of his trus- tees, a settlement might be made of the fund, subject to the life estate, for the benefit of the wife and issue; and subject to the trusts of such settlement, or " in case none shall be declared," he directed that the fund should go to such persons as his son should by will appoint ; provided that, in case his son died unmarried, or having been married without leaving issue, and without having exercised the power of ap- pointment, the trustees were to hold one moiety of the fund upon the trusts mentioned. The son died without having been married, having by, his will ap- pointed 10,000i, part of the fund, to his two bro- thers : — Held, reversing the decision of the Court below, that the son, in the events which had hap- pened, had a valid power of appointment over the fund. Sheffield v. Coventry, 22 Law J. Rep. (n.s.) Chanc. 498; 2 De Gex, M. & G. 551. A testator devised real estate to his cousin S K for life, charged with annuities, and declared that "in case any of the annuitants should survive S K," he gave the same estate to the eldest surviving son of S K, " charged with the aforesaid annuities"-,! but "in default of issue male" he gave the same estate to T K, brother of S K, " charged in like manner with " the aforesaid annuities, and unto his eldest surviving son on the same conditions." The will then pro- ceeded, " but in default of issue male my will is, that the aforesaid demised premises do descend unto my heirs-at-law, charged, nevertheless, with the above- mentioned annuities or out-payments." AU the annuitants died in the lifetime of S K; after the death of S K, his eldest surviving son, J K, held the estate for his life ; he died, leaving a widow and a daughter, his only child. S K, the younger, a bro- ther of J K, and the next eldest son of S K, was then living, and claimed the estate under the limitations of the will : — Held, that the words " in default of issue male" meant " in default of issue male of S K"; and that the plaintiff was entitled to the estate as tenant in tail male, but subject to the dower of the widow of J K. Keyv. Key, 22 Law J. Rep. (jj.s.) Chanc. 641; 4 De Gex, M. & G. 73. A testator, who had made equal allowances during his life to four sons for their maintenance, and had settled property of the same annual amount on each of his three daughters on their respective marriages, made his will, dividing his real estate into seven por- tions, and described it in seven schedules. The annual rental of each portion, excepting "four" and "five," was of nearly equal amount. The testator was in- debted on mortgages of his real estates, and directed the trustees of his will, out of his personal estate, to pay to the son to whom he afterwards devised "four" an annual sum, while a piece of land which was comprised in " four" was unlet. He then directed the rents of "four" and "five," and equal portions (fifths) of the rents of the other five properties to be set apart to raise the annual sum, and to be accumu- lated till the mortgages could be paid off. He then directed that when the vacant piece of land should be let (which the testator himself estimated would make the rental of " four" about equal to each of the others except " five"), the annual sum for paying the mortgages should be raised by the whole rents of the lands comprised in the " fourth" schedule, and the re- mainder by equal sixth parts of the hereditaments comprised in the other schedules : — Held, overruling a decision of a Vice Chancellor, that the whole will shewed that the general intention of the testator was equality of division among the seven children, and that the word " fourth" in the place where it was used must be treated as there without design, with- out meaning, and memmper errorem scrihentis; and further, that "fourth" was written for "fifth," and the will must be so construed. Sort v. TnU:; Tulh v. EaH, 22 Law J. Rep. (n.S.) Chanc. 649; 2 De Gex, M. & G. 300. S S directed her personal estate to be invested, and after the death of a tenant for life she gave it to A S and H J or to, their respective heirs, as they respectively might deem proper, they or their heirs first paying 20^ to other parties. H J died without disposing of his moiety : — Held, that it vested in his next-of-kin according to the Statute of Distributions. /fflcoSs V. Jacobs, 22 Law J. Rep. (n..s.) Chanc. 668; 16 Beav. 557. A testator devised real estate to trustees upon trust to sell, and directed that the proceeds of the sale should sink into and be deemed part of his per- sonal estate, and be applied accordingly; and he bequeathed all the residue of his personal estate (in- cluding the proceeds of the real estate) to the same trustees upon trust for his seven children, nomino/- tim, share and share alike. One son died in the lifetime of the testator : — Held, that the lapsed share in the proceeds of the- real estate went to the tes- tator's heir-at-law. Taylor v. Taylor, 22 Law J. Rep. (n.S.) Chanc. 742; 3 De Gex.M. & G. 190. When the real and personal estate of a testator are constituted into one mass, and subjected to cer- 744 WILL; (A) Construction or Wills. tain charges, the charges are to be apportioned be- tween the real and personal estate and borne by them pro raid, according to their relative values. Sobin- son J, the Governors of the London Hospilal, 22 Law J. Rep. (k.s.) Chanc. 7.54; 10 Hare, 19. A declaration in a will that the proceeds of the sale of the testator's real and personal estate shall be considered to all intents and purposes as part and parcel of his personal estate, will not prevent his heir from receiving themoniesarisingfromthesaleofthereal estate, in exclusion of the testator's next-of-kin. Ibid. A B, by his will, dated in 1849, devised all his freehold and copyhold hereditaments in the county of D, which had or might thereafter come into his possession by inheritance from his father, to trustees for a term of 500 years, upon trust to provide certain sums. The testator died possessed of the Castle Eden estate in the county of D, which was conveyed to him by his father, and into the possession of which he entered in his father's lifetime. He was also pos- sessed of other estates in the same county, which were devised to him by his father's will, but which, being the heir-at-law, he took by descent. The descended estate was not sufficient to pay the sums for which the 500 years term was created ; — Held, that the Castle Eden estate was not included in the term. WilMnson v. Bewiclce, 22 Law J. Rep. (n.s.) Chanc. 781; 3 De Gex, M. & G. 837. A testator appointed his wife a trustee of his will jointly with W L, and he appointed her sole execu- trix ; he subsequently, on account of the arduous duties, revoked her appointment as executrix, and appointed W L and two other persons executors in trust of his will : — Held, that this did not revoke the office of trustee, which had been given by the testator to his wife. Graham v. Graham, 22 Law J. Rep. (n.s.) Chanc. 937; 16 Beav. SSO. A testator gave and bequeathed all the rest and residue of his estate and effects to trustees, in trust to collect, get in, and receive the same, and to invest the same in the funds, and pay the interest thereof to a lady for life, and after her decease to pay and divide the said residuary estate equally amongst her eight children : — Held, that the real estate as well as the personalty belonging to the testator, passed under this clause. D'Almaine v. Moseley, 22 Law J. Eep. (N.s.) Chanc. 971; 1 Drew. 629. Declaration in a will that it should not be lawful for the trustees to pay to the testator's sons the sums bequeathed to them, or to permit them to enter into possession of the real estates devised to them until they had executed a bond not to marry or cohabit with their cousins, will not, in a case of doubtful limitation over, be regarded by the Court, where the time of payment and vesting has arrived and the event intended to be guarded against has not hap- pened. Poole V. Bolt, 22 Law J. Rep. (n.s.) Chanc. 1042; 11 Hare, 33. A testator bequeathed the residue of his personal estate to his two brothers and his niece, the daughter of his sister Sarah, who had died before the date of the will, leaving an only child, a son, and never having had any daughter: — Held, on petition of the son under the Trustees' Relief Act, that the son was entitled to the share expressed to have been be- queathed to the daughter of his mother. In re Bichit's Trust, ex parte Wand, 22 Law J. Rep. (N.s.) Chanc. 1044; 11 Hare, 299. A testator, by his will, directed the lease of his residence to be converted into money, and invested in stock for his wife to receive the interest for life, and that she should receive all interest on all sums of money that he might have on any note of hand, bill or bond, except as therein mentioned. The tes- tator then directed a freehold estate to be sold, and the produce invested in stock, and that his wife should receive the interest of the same as well as of all stock standing in his name at his death. At the decease of his wife, the testator directed all interest and dividends to be invested half-yearly, and to he added to such stock which he bequeathed to his nephew, which stock and all accumulations by the addition of such interest, the testator declared should become the property of his nephew on attain- ing twenty-one. 'The will did not contain any resi- duary bequest: — Held.onpetitionundertheTrustees' Relief Act, that the nephew was entitled to the stock in which the produce of the leaseholds had been invested, as well as the stock in which the pro- duce of the testator's freehold estate had been in- vested. In re the Trusts of Cwrtois' Will, 22 Law J. Rep. (n.s.) Chanc. 1045. A testatrix gave 1,0002. to the trustees to pay the interest to the petitioner for life, and afterwards the capital to be divided between his children. There was also a power to the trustees, if they should think fit, to advance all or any portion of the 1,0002. for the " preferment, advancement, or establishment in the world " of the petitioner. A portion of the l.OOOZ. had been advanced under this power. The petitioner had had twelve children, five of whom were alive: and, being in embarrassed cir- cumstances, now asked, with the consent of the children and of the trustees, that the remaining por- tion of the money might be paid over to him under the power in the will ; — Held, that this was not such a case as was contemplated by the power. I/im/rd v. Pease, 22 Law J. Rep. (n.s.) Chanc. 1069. - Testatrix gave all her property to her mother for life, and at her decease directed the residue of her estate to be divided equally between the surviving brothers and sisters of the testatrix. The mother and four of the residuary legatees who survived her, pre- deceased the testatrix : — Held, on demurrer, that such only of the legatees as survived the testatrix were entitled to her residuary estate. Spwrrdl v. Spurrell, 22 Law J. Rep. (n.s.) Chanc. 1076 j 11 Hare, 54. A, by his will, bequeathed leaseholds to his daughter M for her life, and aiter her decease to her lawful issue, and "in default of such issue" to his son G and his issue. A codicil, made by the testa- tor, recited that he had bequeathed the leaseholds to G after the death of M, and " in default of her leaving lawful issue :" — Held, that the will might be interpreted by the codicil, and that the gift over in the will "in default of issue," being therefore capable of importing a bequest over on failure of issue living at M's death, it ought to be taken in that sense; and that even if the limitation in the will gave an absolute interest to M, there was a good executory bequest over to G and his issue. Darley v. Martin, 20 Law J. Rep. (n.s.) C.P. 249; 13 Com. B. Rep. 683. A testator by his will, made in 1815, gave "all the rest, residue, &c. of his personal estate, goods and chattels, &c." to M J D absolutely; and he WILL; (A) CoNSTR0CTioif op "Wilis. 745 further devised " all and singular his manors or lord- ships, rectories, advowsons, messuages, lands, tene- ments, tithes, and hereditaments, situate, &c. at or near W, in the county of D, and B, in the county of Y, and all other his real estates in the said coun- ties and elsewhere, and all his estate and interest therein," to uses in strict settlement. In 1841 the testator made a codicil ratifying and confirming his will. At the time of his making his will and of his decease, the testator was possessed of freehold estates in the county of D, and of some church leases in the same county, which were usually re- newable every sfeven years ; in some instances the leaseholds were let and occupied, with the freeholds, at undivided yearly rents. Upon part of the lease- holds, nearest to the freehold mansion, ornamental cottages were built, as well as buildings occupied by persons employed about the mansion and freehold estate : — Held, that, under the 1 Vict. c. 26. s. 26, the leaseholds passed under this general devise, and that no contrary intention appeared upon the will so as to prevent the operation of that section. Wil- son v. Eden, 21 Law J. Rep. (n.s.) Q.B. 385; 18 Q.B. Kep. 474. A testator bequeathed the one-half of certain personal property to his son, to be under his own controul, and the other moiety in trust for the children of his daughter. The son was made resi- duary legatee. The testator drew his pen through the words describing the property, and the will was admitted to proof, with a blank as to the amount of projjerty : — Held, that the Court not being able to regard anything but the probate, and the amount of property to be divided being omitted, the bequest was void, and the property went to the residuary legatee. Taylor v. JRichardson, 23 Law J. Rep. (n.s.) Chanc. 9; 2 Drew. 16. A testator devised Bradon Farm, a real estate, to trustees in fee simple, upon trust to raise " by sale or otherwise" out of such estate 2,000?. and invest the same, and upon trust to permit his son Philip to enjoy the same estate, " after raising as aforesaid," for his life, and then for his children; and if he should die without leaving issue the testator devised the estate to his sons Simeon and Thomas, in fee, as tenants in common. The trusts of the 2,000/. were declared, as to half, for the testator's daughter, Mary, for life, and after her death to be equally divided among her children; and as to the other IjOOOi., upon trust for his other daughter, Eliza- beth Cooper, for life, and after her death to be equally divided among her children. The testator gave the residue of his real and personal estate equally between Simeon and Thomas, their heirs, executors, administrators and assigns, for ever. All the three sons survived the testator; Simeon and Thomas died intestate, and never having in any manner dealt with their interests in the Bradon Farm estate or in the 2,000/. Philip was the heir- at-law of each of them. The 2,000/. was not raised during Philip's life, but he paid the interest to his sisters. Philip devised Bradon Farm to trustees in trust for certain persons. After his death the 2,000/. was raised, but Elizabeth Cooper died with- out ever having had a child, so that 1,000/. was remaining, the trusts of the same having thus par- tially failed ; — Held, affirming a decision of the Court below, that the 2,000/. was a charge upon the DiBBST, 1850—1855. Bradon Farm estate, and not an excSption out of the devise. In re Cooper's Trusts, 23 Law J. Rep. (N.S.) Chanc. 25; 4 De Gex, M. & G. 757. Held, also (also affirming, but Lord Justice Turner doubting), that the 1,000/., the trusts of which had partially failed, sank into and became part of the Bradon Farm estate, and passed by the will of Philip to his devisees in trust, the same having descended upon him as real estate, as heir-at-law of his brothers Simeon and Thomas. Ibid. A testator gave all his real and personal property to trustees, in trust for his eight nephews and nieces, naming them, in equal shares, as tenants in common, the shares of nephews absolutely, and the shares of nieces as they should by deed or will appoint, and in default of appointment for them absolutely, but for their separate use; and the testator also declared that in case any of his nephews and nieces should die in his lifetime, leaving children, or should sur- vive him and die under twenty-one, leaving children, then their shares to be in trust for their children; and if any of the nephews and nieces should die in his lifetime, without children, or should sur- vive him, and afterwards die under twenty-one, without leaving children, then the shares of each such nephews and nieces so dying should go to the survi- vors. By separate codicils the testator revoked the trusts in favour of two of his nephews. By another codicil he gave a legacy of 100/. to A W; by a sub- sequent codicil he appointed A W his executor, and gave him 600/. in lieu of the 100/., provided he should act as his executor. By a further codicil he revoked the appointment of A W as executor, and also revoked the legacy of 500/. : — Held, that the shares of the two nephews that were revoked were undisposed of, and went to the heirs and next-of-kin of the testator; that the share of a niece who died during the testator's lifetime, without children, was also undisposed of; and that the revocation of the 500/. legacy to A W did not revive the 100/. legacy, but that also was completely revoked. Boukott v. Boulcott, 23 Law J. Rep. (k.s.) Chanc. 57; 2 Drew. 25. A testatrix bequeathed the residue of her estate to such of her nephews and nieces as should be in England at the time of her death, and the children of such of her nephews and nieces as should be then dead, living in England, Two of the nieces were domiciled abroad at the date of the will. and the time of the death. A, another niece, at the time of the death, waa living with her husband, who was on duty with his regiment in Ireland ; and B, another niece, was staying with A in Ireland, on a visit at the same time : — Held, that A and B, though not actually in England at the time of the death, were entitled to shares in the residue. Woods v. Townley, 23 Law J. Rep. (n.s.) Chanc. 281; 11 Hare, 314. A testator gave all his real and personal estate upon trust for his brothers and sisters, A, B, C, D, and E, their heirs, executors, administrators and assigns. He then gave a power of sale to his trustees, and directed that the monies should be divided between his brothers and sisters. He then declared that if any of his brothers and sisters should die without leaving issue, his or her share should go. to the survivors, and that if any of his brothers or sisters should have left issue, such issue should be entitled to their parent's shares :^Held, that the, 5G 716 WILL; (A) CONSTBtCTlOK OF WllLS. brothers and sisters living at the testator's death were absolutely entitled to shares of his real and personal estate. Woodhume v. Woodbwme, 22 Law J. Rep. (N.s.)Chanc. 336. A testator gave " the interest of 2,000?. to 6 S and at his death to his children," and in a subsequent part of the will "the sum of l.OOOt to G S, in addi- tion to the 1,000?. before mentioned"; Held, that the first legacy was not reduced by the erroneous allusion to its amount in the second legacy; and that the latter legacy of 1,000?. was an absolute gift to G S of that sum. Mann v. Fuller, 23 Law J. Eep. (n.s.) Chanc. 54.3; Kay, 624. By the marriage settlement of Mrs. B, the manor of W, with the appurtenances, and other real estate, were conveyed to trustees, upon such trusts as Mrs. B should, by will, appoint, and in default upon the trusts therein mentioned. The trustees, under the powers of the deed, purchased lands, copyhold of the manor of W, which were surrendered to them accordingly; and these lands were, in the lifetime of Mrs. B, thrown into one farm with other lands, not part of the manor, and let together under one demise. Mrs. B died in 1813, having by her will appointed all her manor of W" to R H for life, with remainder to his first and other sons in tail male, and having appointed the residue of her real estate to trustees upon trust to sell. In 1814, the trustees of the will, presuming the purchased copyholds to have passed under the devise of the residue, sold them to R B, who continued in possession until his death in 1835; and in 1837 RB's devisees sold them to the defendant S. R H, the tenant for life, died in 1828, leaving two infant sons, R H, who died in 1831, a minor, and W H H, the plaintiff. In October 1849, W H H attained his majority, and, in Decem- ber 1850, filed his bill against S and others, claiming the purchased copyholds as being included in the devise of the manor of W : — Held, upon appeal, affirming the decision of the Court below, that there being nothing in the will absolutely inconsistent with such a construction, the word " manor" must have its legal effect, and S was decreed to re-convey to the plaintiff. Hicks v. Sallitt, 23 Law J. Rep. (n.s.) Chanc. 571; 3 De Gex, M. & G. 782. - Held, also, that the purchasers having notice of the will, eould not be held to have had a bond Jlde adverse possession; and that the plaintiff being an infant at the time his title accrued, and having asserted his rights without laches, was entitled to an account of the rents and profits from the time his title accrued. Ibid. For the purpose of construing a testamentary appointment, the Court is entitled to look at the instrument creating the power, the two constituting at law but one instrument. Ibid. Under a gift " to W M and his wife J for their lives, with remainder to my grand-children " : — Held, that the wife surviving was entitled for her life. Moffai v. Bumie, 23 Law J. Rep. (if.8.) Chanc. £91; 18 Beav. 211. Held, also, that the grandchildren named in the will, and those born during the life of W M, were entitled in remainder after the death of his wife. Ibid. A gift of the residue " of my property, whether freehold or personal, wheresoever situate," to a wife absolutely, " being fully satisfied that she will dis- pose of the same by will or otherwise in a fair and equitable manner to our united relatives, bearing in mind that my relatives are generally in better worldly circumstances than hers '' : — Held, that the word "freehold" must be read as " real," and that it included a copyhold estate. Seems v. Baker, 23 Law J. Rep. (n.s.) Chanc. 699; 18 Beav. 372. Held, also, that the wife took an absolute estate both in the real and personal property, and that it was not affected by any implied trust. Ibid. A direction in a devise of real estate " never to sell out of the family, but if sold, it must be to one of his brothers thereafter named," — Held to be a restraint on alienation, and void. Attwater v. Ait^ water, 23 Law J. Eep. (n.s.) Chanc. 692; 18 Beav. 330. The gift of a freehold house to J N A in reversion expectant on the death of two lives, " together with my copyhold and leasehold property at C, in the parish of N " : — Held, there being property in C and N, to pass the property in C only, though C was a tything merely of the parish of N. Ibid. Held, also, that a reversionary interest in the copyhold and leasehold estates expectant on the de- cease of two lives was alone given to J N A, and that the customary heir took the copyholds, and the next-of-kin the leaseholds, until the death of the survivor of the two lives. Ibid. A testator, after devising specific real estate, de- vised all the residue of his estate to trustees for ninety-nine years, without impeachment of waste; and, subject thereto, to his son W for life, without impeachment of waste; remainder to his grand- daughter C for life, without impeachment of waste; remainder to her issue in strict settlement. The trusts of the term were to raise money by mortgage or sale of the premises comprised therein. The will contained a proviso that no part of the timber upon the residue of his real estate should be cut until his granddaughter attained twenty-one, at which time his trustees were to cut such timber as they should think fit, and pay the proceeds to his granddaughter for her sole use. In 1835 W died, and in 1836 the granddaughter attained twenty-one, and died in 1842, leaving an only child and her husband surviving her, the trustees not having exercised the power of cutting timber. In 1843 the term was sold for the purposes of the trust : — Held, that the purchaser was entitled to the timber standing upon the estate at the time of the sale. Watlington v. Waldron, 23 Law J. Rep. (n.s.) Chanc. 713; 4 De Gex, M. & 6. 259. By his will, dated in 1843, a testator exonerated his sister, as follows, '* from all claims in respect of money laid out by me in improvements of the es- tates in Scotland, and which money has, according to the laws of Scotland, been charged thereon." At the date of the will some monies had been laid out and duly charged on the estates, and other monies had been laid out, but were not charged on the es- tates until after the date of the will. Further sums were afterwards laid out by the testator and charged on the estates. Held, that the exoneration was appli- cable only to the monies laid out and charged at the date of the will. Douglas v. Douglas, 23 Law J, Rep. (n.s.) Chanc. 732; Kay, 400. A, by his will, devised Whiteacre to B for life, WILL; (A) Construction or Wills. 747 with remainder to C in fee, and died. A vraa the father of B, and B was the aunt of C. C, by his will, made after the death of A, but during the life of B, devised all his real estate, except the real estate which he might derive from his aunt B or any of her family, in manner therein mentioned : — Held, that Whiteacre was excepted by the above terms from the general devise of B's real estate. James V. Lard Wynford, 23 Law J. Rep. (u.s.) Chanc. 767; 2 Sm. & G. 3^50. A testatrix, by her will, directed her real estate to he sold, and charged debts and legacies and a sum of 5,000?. upon the proceeds of the real estate and her personal estate as a mixed fund. The trust of the mixed fund was for A B for life, and after her decease, subject to the charge of SfiOOl. in favour of the appointees of A B by will, for C D absolutely. By a codicil the testatrix gave to A B, in fee, the real estate, freed from any charges created by the win : — Held, that the personal estate was subject to the whole of the 5,000i. charge. Tatlockv. Jenkins, 23 Law J. Rep. (n.s.) Chanc. 767; Kay, 6S4. . A bequest of leaseholds to A for life, remainder to B, remainder to C : — Held, that B took a life interest only. Earl of Lonsdale v. the Countess Berchtoldt, 23 Law J. Rep. (n.s.) Chanc! 816; Kay, 646. A testatrix devised all her freehold property to her son for life, with remainder to all or such one or more of his children as he should appoint; and in default of appointment, to his first and other sons in tail male; and upon failure of all such issue, to her own right heirs for ever : — Held, that in default of appointment by the son of the testatrix, and upon failure of the issue of his sons, the daughters would take no interest, but the estate would go to the testatrix's right heirs. Hardimgliam v. Tliomas, 23 Law J. Rep. (n.s.) Chanc. 910; 2 Drew. 353. Another testatrix gave the income of her real property to W T during his life, and also to any child or children he might have who should attain twenty-one years, in such manner as he should ap- point, and to his and their heirs for ever; with a gift over in default of such issue : — Held, that this was a gift, after the death of W T, to all his children in fee, he having the power to appoint in what man- ner they should take; but in default of appointment the estate would not go over unless he died without children living at his death. Ibid. A testator gave an annuity of 600/. " to A for her life, and the issue from her body lawfully begotten; on failure of which, to revert to my heirs; aud I re. quest B and C to act as my trustees for A, so that the said annuity may be secured for her separate use" : — Held, that A was entitled for life only to the an- nuity, with remainder to her. issue. In re Wynch's Trust, 23 Law .T. Rep. (n.s. ) Chanc. 930 ; 5 De Gex, M. & G. 188; 22 Law J. Rep. (n.s.) Chanc. 750; 1 Sm. & G. 427. In a will, the word " issue " is not a technical ex- pression ivnp\y'mg, primd facie, words of limitation, but will yield to the intention of the testator to be collected from the words of the will. Ibid. Assuming the word " issue" to have been a word of limitation, A's life estate would not have coalesced with the estate in remainder, as the one estate was equitable and the other legal. Ibid. The decision in Knight v. Ellis, 2 Bro. C.C. 570, approved of. Ibid. A testatrix gave all her leasehold and personal estate to trustees, upon trust to pay the rents and profits of two specified houses to A, and she gave the sum of 100?. Bank stock to B when he attained the age of twenty-one years, and in case of his death to C. At her death the testatrix had Bank annuities, but no Bank stock : Held, that A took an absolute interest in the leaseholds; that the legacy of 100/. Bank stock was contingent upon B's attaining twenty- one; that if he died under twenty-one, then C took absolutely; and that 100/. Bank annuities would not satisfy the gift of Bank stock, but that the trustees must purchase 100/. Bank stock out of the funds of the testatrix. Bignall v. Rose, 24 Li^w J. Rep. (ir.s.) Chanc. 27. A testator gave his residuary real and personal estates to trustees, upon trust to pay the income of one-fifth to a daughter for life, with remainder to all and every the children she should leave at her death. The other four-fifths he gave to his four other chil- dren in a similar manner; but provided that if any child should die without leaving any child at his or her death such share was to go to the testator's other children for their lives and the issue of any then, deadi, as before directed ; and after the death of his fivie children the rent and income were to be paid to all and every the children of his five children, share and share alike. The daughter died, leaving an only son, who afterwards died: — Held, that the parties claiming through the daughter's son had no interest in the rent and income during the lives of the sur- viving children of the testator; that cross-remainders between the testator's children could not be implied; and that the interest in the one-fifth share during the lives of the surviving children of the testator was undisposed of by the will. Rahheth v. Squire, 24 Law J. Rep. (n.s.) Chanc. 203; 19 Beav. 77. A testator being seised of estates at L, F, S and B, subject as to L and F to a mortgage of 1,200/., de- vised L, subject to 200/., part of the mortgage debt, to one in fee, and he devised to other devisees in fee, subject to 1,000/., the remainder of thedebt, his estate at F and also his estate at S, and died intestate as to the estate at B. The personal estate being insufijoient to pay the debts, — Held, first, that the apportion- ment of the charge did not exempt the personal estate from being the primary fund for payment of the mortgage debt; and, secondly, that the will did not impose any charge or condition on the estate at S.- GoodmAn, v. Lee, 24 Law J. Rep. (n.s.) Chanc. 306 ; 1 Kay & J. 377. A testator gave 5,000/. to each of his four daugh- ters for their separate use, and if they had any chil- dren the principal to be divided between them after her death, if they should attain twenty-one; if not, it was to be divided among her " surviving sisters." A B, one daughter,, died leaving two children, both of whom died infants, but one of them left a child surviving. Another daughter died before her sister, A B's childrep,leaving three children :^Held, that on the death of the surviving child of A B under twenty-, one, the surviving sisters became entitled to the fund ; which was aifirmed on appeal. Ca/rver v. Bv/rgess, 24 Law J. Rep. (h.s.) Chanc. 401; 18 Beav. 541. The testator had a fifth daughter for whom he had separately provided : — Held, that the separate pror vision was no reason for excluding her from taking under the words " her surviving sisters," Ibid, r-is WILL; (A) CoNSTBucTioN OP Wills. Maintenance having been allowed, by an order of this Court, out of the income of the legacy, and the surplus having been invested, it was held, that such surplus passed to the legal personal representatives of the infants. Ibid. A testator bequeathed the income arising from certain funds to A, a widow, for life or until her marriage; and after her death or marriage, which should first happen, he gave the principal amongst her children by two former husbands. A married again between the date of the will and the death of the testator, and he was aware of her marriage : — Held, overruling a decision of one of the Vice Chan- cellors, that A was not entitled to the income of the funds, but that the gift over upon her decease or mar- riage came at once into operation. Bullock v. Ben- nett, 24 Law J. Rep. (n.s.) Chanc. 512: overruling 24 Law J. Rep. (n.s.) Chanc. 397; 1 Kay& J. 31S. The 24th section of the Wills Act, 1 Vict. c. 26, which enacts that a will is to be construed to speak as if executed immediately before the death of the testator, does not apply to the objects of a testator's bounty who are to take the real and personal estate given by the will, but only to the real and personal estate comprised in the will. Ibid. A teslator, by his will, gave his widow an annuity for her life. He then disposed of the greater part of his property, but left a portion of his personal estate undisposed of, there being an intestacy on the face of the will. He then declared that the provision made for his widow was intended by him to be taken in discharge of all claims which she, at any time, might or could have, or which, without provision or declaration, she might have, at the time of his death, in any part of his real or personal estate in any man- ner whatsoever : — Held, that the widow was excluded from participating in the property of which the tes- tator died intestate. Lett v. Rcmdallj 24 Law J. Rep. (N.s.) Chanc. 708; 3 Sm. & G. 83. A testator gave, devised and bequeathed all his re- siduary personal estate, and also all his freehold and copyhold estate, unto and to the use of trustees, to pay the rents, issues and profits to his niece and her assigns for life; and after her decease he gave, devised and bequeathed his said real and persona! estates unto the heirs, executors, administrators and assigns of his niece, according to the several natures and qualities thereof: — Held, that as to the real estate the niece had a general power of appointment after her death, and in default of appointment her heir would take by purchase, and that the personal estate was given absolutely. Quested v. MicheU, 24 Law J. Rep, (n.s.) Chanc. 722. A testatrix, after directing her debts and legacies to be paid, and a fund to be set apart to answer the several annuities given by her will, left whatever money remained, or whatever money she might be entitled to, or might have left her, to her two great- nieces. She then gave various specific legacies, and concluded with these words : — " If I have omitted naming anything, I leave it to my two sisters": — Held, that these last words did not constitute a gene- ral residuary bequest; and that the fund set apart to answer the annuities came within the term " money," and passed, under the first clause, to the testatrix's great-nieces. Barrett v. White, 24 Law J, Rep. (N.s.) Chanc. 724. W W, by his will, dated in 1799, appointed trus- tees and executors, and devised to them all his estate in trust. He had freehold and copyhold estates (but both were mortgaged), and also personal property. He desired that his debts might be paid, and that the trustees should pay to each of his two grandsons, C W C and R C, an annuity of lOOi. for their main- tenance till twenty- three; that when C W C attained twenty-three, then, subject, &c. to the charges con- tained in the will, they should apply the rents and profits for the use and benefit of his grandson C W C (the elder of the two) for life, and after his decease he devised the said real estate, or the surplus thereof, to the eldest son of the said C W C, his heirs, &c, for ever, chargeable, however, with 1,000/. for the benefit of his other grandson, R C. There had not been any surrender of the copyhold property to the use of the will. The annuities, without fault on the part of the trustees, had not been paid : — Held, that the copyhold did not pass by the will; that the an- nuities were properly charged on the real estate de- vised by the will, and that interest was not payable on the arrears of those annuities. Torre v. Brown, 24 Law J. Rep. (n.s.) Chanc. 757; 5 H.L. Cas. 5S5. Where an estate for life is given by clear words, the mere imposition of a charge on the tenant for life will not have the effect of enlarging the estate. East v. Twyford, 4 H.L. Cas. 517. A testator by a will, written on the pages of a small note-book, divided his property into three classes, marked No. 1, No. 2, No. 3. He devised these classes to persons designated by letters. The order of " succession" was marked in one page (54) of his will. This page contained the words " The eldest and other sons to inherit before the next letter." The persons designated by letters were all named in a card, which was referred to in the will, and which card was, with the will, admitted to pro- bate. K was the testator's wife, to whom was given an estate for life in all the classes of the property. The will required implicit obedience to certain orders of the testator on the part of " the individual first to inherit after K;" and if not, " the property aforesaid set down and particularized in No. 1, to go to M, if not to L, and afterwards to his eldest lawfully be- gotten son, &c." There were similar expressions with regard to N and O. The card shewed that these two letters were intended for the eldest sons of two nephews, but who were then unborn. The pro- perty, No. 1, consisted of very largfe sums in stock, which the executors of the will were to invest in the purchase of real estate ; and in page 54, L was named as the person to take No. 1 after the life estate of K. A grandson was " to inherit before the next-named in the entail, or any one of his sons." Class No. 2. consisted of a small estate in land, and by page 54, O was, as to that, to succeed to K, and the estate there given to O was expressly a life estate, with remainder to his eldest and other sons in tail male; and it was there also said, "a grandson, le- gitimate, shall inherit before a younger son." Class No. 3. consisted of certain estates in Suffolk; the " succession" there was (page 54) " first to K, then to M," and the devise (page 47) was " first to It, then to M, and afterwards to his eldest legitimate son, and then to his other legitimate sons in order of primogeniture, provided, but not else, the eldest have no issue male; if he have, it will go to him, and so on to the other sons in like manner. After WILL; (A) Construction of Wills. 749 the decease of K, I repeat I bequeath all the pro- pertj" aforesaid to M and his heirs male, in the man- ner aforesaid as in the case of L, &c. at page 2, and I mean and order that this mode shall prevail throughout the whole entail under precisely the same injunctions" : — Held, that, reading all the parts of the will together, L took only a life estate in No. 1, with remainder to his eldest and other sons in tail male. Held, also, that this was not an executory trust. Ibid. The Court of Exchequer, on an information filed by the Attorney General for legacy duty, had held that L took an estate tail. On a bill to carry into effect the trusts of the will, the Vice Chancellor held that L took a life estate only. The Vice Chancellor's decision was affirmed; hut as the testator had himself created the difficulty, the costs were ordered to come out of the estate. Ibid. Meaning of the words " son," "grandson," and " inherit." Ibid. A testator gave his real and personal estate to A, B and C as tenants in common. By a codicil he declared that if any of the devisees should die in his lifetime his estate and interest should "go to the survivors or survivor of them, and the heirs, execu- tors, administrators and assigns of such survivor." A died in the testator's lifetime : — Held, that B and C took as joint tenants the share intended for A. Leigh v. Mosley, 14 Beav. 605. A testator bequeathed his residue to his nieces A and B; he then confined the gift to A and B and their children, without comprehending their husbands, unless his nieces should die without issue : — Held, that A and B took for their separate use for life, with remainder to their children, and that in default the nieces took absolutely. Bawso/n v. Bomme, 16 Beav. 29. Real and personal estate were given upon trust during the litis of A, out of the income to pay A 200^. a year, and one-third of the residue to B ; and on the death of A to sell and pay one-third to B; then a gift over on the death of B before his share should " become due and payable." B died in the life of A; — Held, that the gift over took effect. Creswick v, Oaslcdl, 16 Beav. 677. Bequest to A during widowhood, and immediately after her death or second marriage, whichever event should first happen, to trustees to sell and divide between several persons named, or such of them as should be living at the death of A. A married again ; — Held, that the property thereupon became immediately distributable. JBainiridge v. Cream, 16 Beav. 25. The doctrine laid down in Leake v. Robmson as to remoteness applies to real as well as to personal estate. WaOcer v. Mower, 16 Beav. 365. Devise and bequest of real and personal estate to trustees for A for life, and " afterwards to convey and assure" equally between all A's children on their respectively attaining twenty-one, with a gift over on A's death " without leaving any child." There was one child who survived A, and died an infant: — Held, that such child did not take a vested interest; and, secondly, that the gift over did not take effect. Ibid. Bequest of leaseholds upon trust to assign unto all the children of A B on their respectively attain- ing twenty-one, and if one child, to assign to such child (omitting "on attaining twenty-one"). An only child who died an infant was held to take a vested interest. Ibid. A testator gave his real and personal estate to his sister for life, and if she should have any family living at her decease they should have " their due proportion of the property," and in case of the demise of his sister's children, his two nephews were to stand in the same situation as his sister's children would have stood had they been living : — Held, that such only of the nephews as survived the sister and the children took ; and one of the nephews having died in her lifetime, that the other nephew was entitled to the whole residue. Lewis v. Lewis, 17 Beav. 221. A testator devised and bequeathed all his lands and property whatsoever in Australia, together with the arrears of rents, to A and B, their heirs and assigns; and he gave the residue of his estate and effects to C ; Held, that his personalty in Australia passed under the first gift. Robinson v. Webb, 17 Beav. 460. A testatrix gave her real and personal estate to three trustees, upon trust as soon as they, in their dis- cretion, should think most advantageous to sell and convert into money her real estate, and pay her debts and legacies. She gave the residue of her estate, and effects to her son J B : — Held, that J B took the residue of the realty in the character of personalty. Griesbach v. Fremamtle, 17 Beav. 314. J B, who was one of the trustees, paid the debts and legacies except one annuity, and remained in posses- sion sixteen years, and died intestate : — Held, (haying regard to his acts, and notwithstanding he was both co-trustee and owner,) that the property was re-con- verted into realty and passed to his heir. Ibid. Observation that the interest of a witness is apt to mislead his recollection. Ibid. A testator gave his freehold, copyhold and lease- hold estates, and all his stocks, shares and personal estate to trustees, in trust to receive the rents, issuer and profits, and thereout to keep the houses, &c. in good, substantial and tenantable repair, and renew his leaseholds, &c., and then to pay the net income arising from the residuary real and personal estate to his wife for life :-^Held, first, that the wife was entitled to the enjoyment in specie; and, secondly, that all ordinary repairs were to be paid out of the income, but not such extraordinary repairs as would amount to rebuilding the houses. Crowe v. Crisford, 17 Beav. 507. Part of the testator's property being at his death invested on insufficient securities, an inquiry was also directed, whether any and which of the outstanding debts due to the testator should be got in. Ibid. A testator, by his will, gave real and personal property to his daughter A absolutely, but by a codicil made subsequent to her marriage, he directed that " it should be settled to the exclusion of her present or any future husband, that the same might belong to her during her life, and be secured for the benefit of her children equally after her death, so that the issue of any such child dying in her lifetime might take his or her parent's share"; and in default of such children or other issue, over, — Held, that the property must be settled in trust for A for life to her separate use, without power of anticipation, and after her decease upon trust for such of her children as should survive her, and for the issue living at her 750 WILL; (A) Construction of Wills. death of such of her children as should not survive her equally as tenants in common, the issue to take per stirpes, but, inter se, equally as tenants in common. That there should be limitations in the nature of cross-remainders in favour of such of the children and issue as should survive A, in respect of the share of any child dying in her lifetime without leaving issue, and in respect of any share of any issue of any child similarly dying. That the realty should be settled as realty, and (as the testator by simply directing a settlement must have intended) with powers of leasing and sale and exchange, and with a receipt clause. That the settlement should contain provisions for maintenance, education and advance- ment, and a power to appoint new trustees. Tamer V. Sargent, 17 Beav, 515. A testatrix by her will appointed A and B execu- tors and trustees thereof. By a codicil she revoked the appointment of A as executor, and appointed C executor, and gave to C " all the powers and autho- rities to enable him to carry out the trusts of her will as were given by her will to A." The testatrix thereby also declared her intention to be, that the codicil should only ''affect the appointment of A as executor of her ^vill": — Held, that B and C were exe- cutors, and A, B and C trustees of the will. Worley V. TFbrZey, 18 Beav. 58. A testator resided in Camperdown House, and had eleven houses in Camperdown Place, and three in the rear in Ship Row, all being leasehold. He be- queathed his leasehold estates, situate Camperdown House, Camperdown Place, to his wife for life. After her death he bequeathed another leasehold to A, and the other leasehdlds, viz. fourteen houses, Camper- down, to B: — Held, that the fifteen houses passed to B. ArmsiroTig v. BvxMand, 18 Beav. 204. Bequest of long annuities to A and B jointly for their natural lives. " In case of one or both of their deaths before mine," the interest to C for life, &c. &c. A and B survived the testator: — Held, by the Mas- ter of the Rolls, that the gift to C failed; but the Lords Justices were of a different opinion. Boosey T. Oardrier, 18 Beav, 471. A bequest in favour of the testator's two children then born (by name), and the child "of which his wife was then eyiceinte'''' : — Held, on the context, to include besides the above three a fourth child, born three years after the date of the will. Goodfellow V. Goodfellow, 18 Beav. 356. A testator in 1831 devised his copyhold messuages to trustees upon trust, to permit his wife to occupy one of them during the minority of his youngest child, and to apply the rents of the others to the maintenance, &c. of his children, Thomas and John, " and the children or child of which his wife was then enceinte'''' during minority, making thereout a provi- sion for his wife. The testator then provided for the advancement of his "said children," the division of the messuages among them at twenty-one, and for benefit of survivorship among them. He also be- queathed his personal estate on the like trusts in favour of his "said children," and in all these cases he added the words "as well the children or child of which my wife is so enceinte as those already born ;" but in several instances he simply used the words "said children,'' and in one instance omitted the word "said." In 1847 the testator made a codicil disposing of freeholds and copyholds acquired since the date of the will on the same trusts, and confirm- ing the will. The child of which the wife was enceinte was afterwards born, and subsequently in ] 835 a fourth child was born : — Held, first, that the fourth child was entitled to a share, and, secondly, that the widow was put to her election. Ibid. A testator gave his property to his wife for life, and "if he should survive her" (which did not hap- pen) he ordered a sale, and gave the produce amongst his sisters: — Held, that the power of sale and the gift of the produce took effect on the death of the wife, although the testator did not survive her, Tiier v. Turner, 18 Beav. 185. A domiciled Englishman made his will in a Spanish colony, in the Spanish langUHge and form, and em- powered K,whom he appointed his universal heir, to make his (the testator's) will, making therein the de- claration, &c. and other matters, which had been and would be communicated to him. The will was ad- mitted to probate: — Held, first, that the will was an English will, and that in construing it, the Spanish language was only to be looked to in order to ascer- tain the equivalent expression in English ; and, secondly, that K being appointed universal heir, the beneficial interest, after performing the trusts, if any there were, belonged to K, and not to the testator's next-of-kin. Reynolds v. Kortinght, 18 Beav. 417. A testator gave his real and personal estate to trustees, upon trust to pay the income to foift per- sons for life, as tenants in common, and after the death of the survivor to sell the real estate, and stand possessed of the proceeds, and of the stocks, funds and securities upon which his pereonal estate should then be invested, upon certain trusts for a class of children. By the death of one of the four his portion of the income became released, and was accumulated until the death of the survivor of the four: — Held, that the accumulation of the real estate was undisposed of and passed to the heir, but that the accumulation of the personalty passed as residue to the children. In re Dralceley^s Estate, 19 Beav. 395. The testator gave an annuity to A for life, and the income of the residue to B and C " during their lives as tenants in common." The gift over to their re- spective children was only after the deaths of A, B and C; and though there was a provision for inter- mediate maintenance, it was only on a contingent event which never happened. B died : — Held, that C was not by implication or otherwise entitled to more than half the income for life. Ibid. Bequest of the interest of one property to two sisters, and of another property to a female cousin, and " in case of the death of the above three females," over: — Held, that the gift over took effect as each fund Wds liberated by the deaths of the tenants for life thereof respectively. Swan v. Holmes, 19 Beav. 471. A testator having three species of property, viz. his own property, property derived from his wife, and a reversion in 10,000/. consols, bequeathed his own property to his two sisters, with benefit of sur- vivorship; his wife's property to his cousin Margaret; and he proceeded thus — "in case of the death of the above three females, the interest to be divided amongst my cousins (naming four) for their lives," and the property, including the 10,000/. trust-money, " to de- volve" to the children of three of those cousins WILL; (A) CONSTETJCTIOK OP WlIiLS. 751 (naming them) in equal proportions ; — Held, that Margaret was not, by implication or otherwise, en- titled to more than the wife's property; secondly, that there was no intestacy between the death of the surviving sister and that of Margaret, but that the d liferent portions of the property went over from time to time, as they were liberated by the respec- tive deaths of the tenants for life thereof respectively; thirdly, that the four cousins took life-interests in the trust fund as tenants in common, and that on the deaths of each, their shares then set free went over to the three cousins per capita, and not per stirpes. Ibid. A testator devised his real estate to trustees to sell whenever it may appear to them advantageous. He directed annuities to be paid to charities out of his personal estate until his real estate should be sold, when he gave the produce to charities. But if the charity bequests should be defeated, he gave the principal money to the plaintiffs. No sale of the realty took place, the infant plaintiffs having (under the chief clerk's certificate finding it for their benefit) elected to take the land in lieu of the produce ; — Held, that the real estate must be considered as converted from the death of the testator, from which time the plaintiffs were entitled to the rents ; and, secondly, that the charity annuities ceased to be charges on the personal estate from the date of the chief clerk's certificate. Robinson y. Hobmsorit 19 Beav. 494. Bequest to a daughter's " younger children," held to mean the children other than the oldest of age, and therefore to exclude the eldest child, a daughter, and to include her younger brother, though under his parents'marriage settlement the family estates stood settled on him. Lyddon v. Ellison, 19 Beav. 565. The testatrix directed her trustees to settle her property, but in such a way that some of the limita- tions would be void for remoteness : — Held, that in carrying the direction into effect, the Court would modify the limitations so as to make them con- sistent with the rules of law and equity. Ibid. Bequest of personalty to trustees for a lady, to be paid at twenty-one, with a direction to settle her share on her for life, and afterwards on her children. The age of A rendering it impossible that she should have children, — Held, that the absolute interest given to her in the first instance remained intact, and that she was entitled to payment. Ibid. A female, aged fifty-six, was absolutely entitled to a fund, subject to the contingency of her having children. Payment was ordered on her own recog- nizances. Ibid. Under a direction to raise 6,000f. for the benefit of A and her issue, followed by a direction to raise and pay interest at 51. per cent, on that sum to A during her life, with a gift over to her children of the " principal sum," — Held, that interest at 51. per cent, was not to be charged on the estate during the whole life of A, but merely until the 6,000^ had been raised. Cole v. Zee, 20 Beav. 265. A testator empowered his, trustees to lend such part of the trust-monies as they should think proper to A and B, who were respectively his son and son- in-law : Held, that this authorized a several loan to either. Parker v. Bloxam, 20 Beav. 295. A, by will, directed trustees, upon the death of the present' incumbent, to present A to the living of S, in case he should take orders; and if he should not, or, taking orders, should die in the lifetime of B, then to present B, in case he should take orders, and after their several deceases, or of such of them as should take orders, and be presented, or in the event of neither taking orders, she devised the ad- vowson to C in fee : — Held, that the gifts in favour of A and B were in succession, and not alternative; and that on the death of A, B was entitled to be pre- sented. Hatch V. Hatch, 20 Beav. 105. A testator, having the power of disposing of an advowson (subject to the existing incumbency of A, and a contingent right of B to be afterwards pre- sented), devised "the next avoidance thereof" in favour of C : — Held, that the next meant the next the testator had power to dispose of, viz. that fol- lowing the incumbency of A and of B. Ibid. Bequest for maintenance of a child, held not to cease on his death, but to pass to his representative. Bayne v. Crowther, 20 Beav. 400. Bequest of leaseholds, in trust to pay one half of the rents to A for life, and the other half to B for life; and in case of the death of either, his share of the rents " to be paid and applied for the main- tenance of his children," until the decease of the sur- vivor of A and B, and then to sell and divide equally between the children of A and B. After the death of A, one of his children died : — Held, that his re- presentative was entitled to a share in the rents until the death of B. Ibid. A testator devised the residue of his real estate to a trustee until one of his grandsons attained twenty- one; and in case his grandson Thomas attained twenty-one, in trust to pay him the future rents. He bequeathed to the same trustees the residue of his personal estate, to accumulate until one of his grand- sons attained twenty-one; and he directed payment of the aggregate of the residue of his personal estate and its accumulations, and the accumulations of the rents, to his grandson Thomas from and after his attaining twenty-one. There was an interval of three years between the eldest grandson and Thomas attaining twenty-one : — Held, that the rents during that interval were undisposed of, and passed to the heir-a(>law. Marriott v. Turner, 20 Beav. 557. By a will, commencing thus, " I give and bequeath the several legacies and annual sums following," a testatrix bequeathed pecuniary legacies and an an- nuity, and directed two sums of money to be set apart sufficient to produce two other specified annual sums, which the testatrix bequeathed to two specified persons for their respective lives. She gave to trustees the residue of her personal estate, subject to the payment of her debts, funeral and testar mentary expenses, and the legacies and annui- ties which siie had bequeathed, or might thereafter bequeath by any codicil. And she devised her real estates to trustees for a term, upon trust to raise sufficient to pay her debts, legacies, funeral and testamentary expenses ; but directed that her personal estate should be the primary, and the term the secondary, fund for payment of her debts, lega- cies, funeral and testamentary expenses: — Held, that the separate specification of" annuities" in some parts of the will did not prevent annuities front being comprehended under the expression "lega- cies" in the trusts of the term. Heath v. Weston, 3 DeGex, M. &G. 601. 752 WILL; (A) CoKSTRtTCTiON OF Wills. A testator by his will desired that his wife might reside during lier widowhood in the freehold house in which he dwelt. After directing his business to be carried on by his executrix (who was his wife) and his executors so long as they thought expedient, he gave the house, stock-in-trade, and the residue of his property to his executrix and executors upon trust, to pay the wife an annuity of 201. so long as the business should be carried on, and when his youngest child attained twenty-one to sell the busi- ness, stock, and effect'', together with the house, and out of the proceeds to pay the wife during her widowhood an annuity of 54^. 10s. instead of one of 'JO/., and subject thereto trusts were declared for the benefit of the children ; — Held, that the widow's right to reside in the house ceased upon the sale. Chapman v. GUbeH, i De Gex, M. & G. 366. Upon the construction of a will, held, that the generality of the word " property" was not restricted by the use of the words " interest "' fyid " dividends'' with reference to the income. Morrison v. Hoppe, 4 De Gex & S. 234. A testatrix by will in 1841 gave to two devisees, who were also her executors, all her real and per- sonal estates upon trust for sale, and she gave out of the produce of her real and personal estate 50Z. to each executor for his trouble, and other pecuniary legacies. There was no gift of the residue, and after payment of debts and legacies a surplus remained. The testatrix left no heir-at-law or next-of-kin. The Court apportioned the legacies and costs of the suit between the proceeds of the real and personal estate, and the Crown was declared to be entitled to the surplus of the personal estate. CradocTc v. Owen, 2 Sm. & G. 241. Devise of lands to successive tenants for life, and then in strict settlement, with a condition that " he or they" should reside in the mansion-house on the lands, and a declaration of forfeiture in case of non- residence. The first tenant for life, who was a mar- ried woman, waa named as such in the will: — Held, that on breach of the condition by her, the estate for life was forfeited. Dvmne v. Duniie, 3 Sm. & G. 22. Held, also, that although the mansion-house was inadequate to the income of the devised property, and was also dilapidated, the tenant for life was not authorized to employ towards improving or repairing the mansion-house any part of the capital of funds directed by the testator to be laid out in the purchase of lands to the same uses. Ibid. Testator bequeathed Greenacre to Catherine S for life, with remainder to her son John S in fee, pro- vided that if he should die in his mother's lifetime, then and in such case the testator gave Greenacre, together with all the residue of his real and personal estate, to trustees in trust for Isabella A for life, re- mainder in trust as to one-fourth for such persons as she should appoint by will, and upon further trust to divide, convey, assign, and transfer all the rest, residue and remainder of the trust property unto and to the use of Maria C, Rose B, and John S absolutely. John S survived his mother, and Isa- bella A died intestate : — Held, that the trustees took the residuary real estate on the testator's death, and that Maria C, Rose B, and John S were not entitled to the one-fourth of the property which was sub- jected to Isabella A's appointment, but that it was undisposed of. Simmons v. JtudaU,lSim. N.S. 115. Before the Court can resort to the context of a will in search of a meaning for the words of a par- ticular clause, it must be satisfied that the meaning of the clause is different from that which the words naturally import. Walher v. Tipping, 9 Hare, 800. Bequest of the testator's property to his wife to bring up and educate his children, and when they should come of age to settle on them what she should deem prudent, reserving to herself a sufficient maintenance, and at her death the property remain- ing to be equally divided amongst his children, with a gift to trustees for the children in case of the mar- riage of his widow : — Held, that the widow took a life interest in the property, with a power to settle or appoint the same on or to the children of the testator, but not on or to his grandchildren, and that the children took vested interests in the property at the testator's death, liable to be divested by such appointment. Kennerley v. Kennerley, 10 Hare, 160. The testator bequeathed his residuary estate to trustees upon trust to pay the interest thereof af^er the decease of a tenant for life to John, Robert, and Ann, for five years, and at the expiration of that term to pay them 5,000i. a-piece, and then to pay the interest of the remainder for a further term of three years to John, Robert, and Ann, in equal shares, and at the expiration of that time to pay the whole to John, Robert, and Ann, in equal shares. Soon after the death of the tenant for life, and before the expiration of the five years, John and Robert claimed and obtained from the trustees payment of the whole of their two-thirds of the residuary estate of the testator; but it was held, that the husband of Ann was not entitled to immediate payment of her share of the capital, and that he was unable to give an effectual release or discharge for the same. Ilarley v. Sarley, 10 Hare, 325. A bequest of "the property which the testatrix had received by the death of B :" — Held, to pass not only the property which the testatrix actually received in her lifetime from the source referred to, but also pro- perty to which the testatrix was then entitled in possession, but which was not actually paid until after her decease, and was then received by her representatives. Girdlestone v. Creed, 10 Hare, 487. By a will, property was given to trustees to apply the rents, interest, and proceeds for the maintenance of the testator's son Edward for his life, and not to be paid to any person under an assignment by or ex- ecution against the son, and after the decease of the son, for the two daughters absolutely. By a codicil it was declared that in case of assignment by Edward the trustees should stand possessed of the property upon trust for the daughters of the testa, tor in the same inanner and form as declared by his will in the event of the death of Edward. By another codicil, the testator gave 600i. stock to Edward in addition to what he had left him by his will, subject to the same controuling powers and re- strictions as were appointed by the will ; and he gave a like sum to his son William, subject to the like controul, "and to the survivor of them; and in the event of both their deaths " for the benefit of the said daughters; — Held, that the true construction of the second codicil was, that in the event of the death of either of the legatees, both legacies of stock WILL; (A) CONSTEUOTION OP WllLS. 753 should go to the survivor, and not that on the death of either, his legacy should go to the survivor, which would cut down an absolute gift into a life interest. That although in one codicil the words " in the event of the death of Edward," meant upon the death of Edward, it did not follow that the words in another codicil, " in the event of both their deaths," meant upon both their deaths ; for one expression was applied to a life interest, and the other to a capital sum. That the period of survivorship must be referred to the period of distribution, namely, the death of the testator. That, therefore, Edward, having survived the testator, took the legacy of stock absolutely. In re More's Trust, 10 Hare, 171. The rule that added legacies are subject to the same conditions as the legacies to which they are added is not appUcable to the case, inasmuch as the application of the rule would alter the terms of the additional gift; and whether the rule applies to any cases except where the original legacy is absolute or defeasible in the party to whom the additional legacy is given — quart. Ibid, In a will made before 1838, a gift of " 4002." stock was obliterated, and the words " residue of my property " substituted, whereby the words admitted to probate were "residue of my property stock:" — Held, that the will by these words passed to the legatee all the funded property belonging to the tes- tatrix at the time of her death, although much of it was acquired after the date of the will and after the year 1838. Banks v. Thornton, 11 Hare, 176. The testator gave his property to C and D upon various trusts, and among others upon trust for sale; and empowered C and D and the survivor of them, his heirs, executors, &c. to give receipts for the pur- chase-money, and concluded by appointing his wife and C and D " trustees and executors" of his will : — Held, that this appointment conferred on his wife only the general powers and duties of executrix, and did not make her a trustee with C and D under the specific trusts of the will. Sidebotham v. Watson, 11 Hare, 170. A bequest of residuary personal estate to the tes- tator's wife, daughter, and son in-law (the husband of the daughter) successively for life, and after the death of the survivor, in trust for all the children of the daughter who should live to attain twenty-one or marry, other than and except the eldest and second sons, if any, and any other child who should by virtue of the limitations contained in the said will be entitled in possession to the said testator's estates thereinafter mentioned, or the rents and profits thereof. The estates referred to were by the said will appointed (subject to prior and existing limita- tions) to the use of the daughter for her life, with remainder to the use of her husband (the said son- in-law) for his life, with remainder to the use of the second and all and every other son and sons other than and except an eldest son of his said daughter, successively in tail male, with remainder to the use of the first and all and every other the daughter and daughters of his said daughter, successively in tail male, with remainders over. The testator's daughter left two sons and several daughters. The second son of the testator's daughter died an infant, unmar- ried, in the lifetime of his father (the testator's son-in-law), and thereupon the eldest daughter of Digest, 1860—1866. the testator's daughter became entitled in the said estates under the appointment contained in the will to an estate tail male in remainder expectant on the termination of the preceding estates (of which the life estate of her father was one) then subsisting. By a settlement made upon the marriage of the eldest daughter, and by a recovery, she, her father, her husband, and the other parties interested in the estates, concurred in declaring new uses thereof, whereby they were limited to such uses as the father, together with a previous tenant for life, and the daughter and her husband, should jointly appoint, and subject thereto and to the confirmation of life estates and certain existing powers and terms of years created by the anterior settlements, so far as they were subsisting, to the use of trustees for a term of ninety-nine years upon trust to pay the rents and profits to the eldest daughter for her separate use, and subject thereto to the use of the husband and his assigns, with remainders over. The eldest daughter died in the lifetime of her father, and, therefore, during the continuance of his life estate, and without having herself come into pos- session of the settled estates, or become entitled to receive the rents and profits thereof, — Held, that upon the death of the father, the husband of the eldest daughter, as her personal representative, be- came entitled to an equal share of the residuary personal estate of the testator, as one of the children of his daughter, notwithstanding he (the husband of the eldest daughter) became also, under the recovery and marriage settlement, entitled in possession to a life interest in the said settled estates. Wyndham v. Fane, 11 Hare, 287. The 24th section of the new "Wills Act, 7 Will. 4. & 1 Vict. c. 26, that every will shall be construed, with reference to the personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, " unless a contrary intention shall appear by the will," illus- trated. If I refer to a particular thing, e.g., a ring or a horse, and bequeath it as "my ring" or "my horse," aemble, the contrary intention to which the 24th section refers appears by the will, and the will speaks from the date of its execution ; but when a bequest is of that which is generic, of that which may be increased or diminished, the act requires something more on the face of the will for the purpose of indi- cating such contrary intention than the mere circum- stance, that the subject of the bequest is designated by the pronoun " my." Qoodlad v. BwriMt, 1 Kay & J. 341. Testatrix in 1850 bequeathed thus: " I give my new 3J per cent, annuities" : — Held, that the bequest comprised all the new Z^l. per cents, which she had at her death. Ibid. Testatrix gave to trustees 1,600?. and certain Danish bonds, which she described thus; — "My four Danish bonds, one of them for the sum of 485J., another of them for the sum of 1,004/., another of them for the sum of 1,31.5/., and the other of them for the sum of 716?., making in the whole, together with the said sum of 1,600/., the sum of 5,020/." She had not any Danish bonds for the specified amounts, but she had a mass of Danish bonds which before making her will she had received in exchange for other Danish bonds, bequeathed to h«r by her hus- band, comprising four lots purchased by him at four 5D ?54 WILL; (A) CoKSTRtrcTiON OF Wills. several periods, for sums corresponding with those specified in the bequest: Held, it appearing that none of such bonds had been sold by the testatrix, that the bequest was a specific bequest of so much of her Danish bonds as were received by her in ex- change for the bonds purchased by her husbands to criminate him, or whether the Court must be first satisfied that the question has that tendency. Ibid. The plaintiff directed the defendant, as his broker, to buy goods for him. The defendant bought the goods, and delivered to the plaintiff a bought note, which stated that he bought them from a prin- cipal, A B. The plaintiff paid the price, and received from the defendant a delivery order, which turned out to be void. The plaintiff having brought an action for money had and received and for non- delivery of the goods, was allowed to deliver inter- rogatories to the defendant, imder the 1 7 & 1 8 Vict, c. 125. s. 61, for the pui'pose of discovering Whether the defendant entered into the contract as agent or as principal, and if as agent, for whom and by what authority. Tliol v. Leaske, 24 Law J. Rep. (n.s.) Exch. 142; 10 Exch. Eep. 704. (E) Disobeying Siibp(ena. Where a witness served with a subpoena duces tecum to produce a written document either does not attend, or does attend and refuses to produce the document (not on the ground of privilege), the party seeking to avail himself of the document cannot give secondary evidence of its contents : the remedy is to punish the witness for a contempt. Megma v. the Inhabitwnts of Llamfaetlily, 23 Law J. Rep. (n.s.) M.C. 33; 2 E. & B. 940. On the trial of an appeal against an order of removal, the appellants, in order to prove a settle- ment by rating in a third parish, served a subpcena dmces tecum on the person in whose possession the rate-book was supposed to be, and also gave th^ respondents a notice to produce the rate-book. The witness did not attend, and the rate-book was not produced: — Held, that parol evidence of a rating in the third parish was not admissible. Ibid: (F) Expenses. A party served with a subpcena in a civil action, receiving a sum of money therewith, and making no further demand, may maintain an action, against the party on whose behalf he has been subpoenaed, for additional expenses incurred by him in attending 5 B 762 WORK AND LABOUR— WRIT, DE CORONATORE ELIGENDO. the trial, but not for loss of time. Pell v. Dwuhney, 20 Law J. Eep. (n.s.) Exch. 44; 5 Exch. Rep. 95S. WORK AND LABOUR. The plaintiff contracted by deed with the defen- dants, as a Local Board of Health, to execute certain works, according to a specification, and that the works should be begun, proceeded with, and completed, to the satisfaction of their surveyor. Payment was to be made by instalments, upon the certificate of the surveyor. By the deed it was provided " that if the plaintiff, from bankruptcy, insolvency, or any cause whatsoever, should not proceed with the works to the satisfaction of the surveyor, it should be lawful for the defendants, after three days' notice, signed by their surveyor, to employ other persons to complete the works ; and that the deed should, at the expiration of the said notice, be void, at the option of the de- fendants, and the amount already paid to the plaintiff should be considered the full value of the works which should up to that time have been executed, and the materials on the premises should become the property of the defendants without any further pay- ment": — Held, that this forfeiture clause might be enforced by the defendants, although the plaintiff had not become entitled to any payment for the work done. Dailies v. tJi£ Mayor, &c. of Swcmsea, 22 Law J. Eep. (n.s.) Exch. 297; 8 Exch. Rep. 808. WRIT OF TRIAL. A writ of trial from the superior courts cannot be directed to a Judge of a county court under the sta- tute 3 & 4 Will. 4. c, 42. s. 17, as a county court is not a court of record within the meaning of that statute. Owens V. Breeae (in error), 20 Law J. Rep. (n.s.) Exch. 359; 6 Exch. Rep. 916: in. the court below, Breese v. Owerts, 20 Law J. Rep. (n.s.) Exch. 228; 6 Exch. Rep. 413. In an action in which two issues were joined, the writ of trial directed the trial of "the issue" not " issues." The defendant, on the case coming on for trial, objected that the writ was irregular; but the objection being overruled, he did not appear at the trial, and a verdict was found for the plaintiff. The Court refused to set aside the writ of trial, or to arrest the judgment for the irregularity. Watson v. Hwm- phries, 21 Law J. Rep. (n.s.) Q-B. 336. WRIT, NE EXEAT REGNO. A writ of me exeat regno granted against a contri- butory in default under an order of the Master for a call in the matter of a company, under the Winding- up Acts, without bill filed. In re the North of Eng- lamd Joint-Stock Banking Co., Mawer'a Case, 4 De Gex & S. 349. Writ of ne exeat regno granted on an affidavit that the defendant, an Englishman, resident in Italy, was about shortly to return to Italy. Anonymous, 4 De Gex & S. 647. WRIT, DE CORONATORE ELIGENDO. After judgment of ouster upon an information in the nature of a quo toam-anto agamst a person re- turned by the sheriff as duly elected to the office of coroner, a new writ de coronatore eligendo issues as of course, and held to be no ground for withholding the writ that the judgment of ouster was founded upon the fact that the votes constituting the majority for the person returned were bad, and though it was alleged on oath that the result of a scrutiny would be to place the opposing candidate in a majority. In re the Coronership of Hemel Hempstead, 5 De Gex, M. & G. 228. Semile—the sheriff cannot under the provisions of the 13th section of the act, 7 & 8 Vict. c. 92, enter into the question of a scrutiny. Ibid. TABLE OF CASES EBFBRRBD TO IN THE PRECEDING ANALYTICAL DIGESTED INDEX. 1850—1855. \In tke folUming Table the asterish* signifies thai the case occurs twice in ihe same page.] Aaron v. Aaron, 591 Abbott, in re, 57 V. Calton, 731 •—^ V. Rogers, 170 V. Sworder, (Specific Perform- mance), 678; (Vendor and Pur- chaser), 731 Aberdeen Rail. Co. v. Blackie, 166 Aberdein v. Jerdan, 25 Abingdon v. Thornhill, 572 Abley v. Dale, 212; (Inferior Court) 343* ; (Insolvent) 357 Abraham v. Great Northern Kail. Co., 620 Abrey v. Newman, 413 Acaster v. Anderson, 578 Acraman v. Herniman, 78 Adams v. Andrews, (Pews), 138 ; (New Trial), 567 v. Jones, 411 V. Smyth, 594 Adamson, re, 55 Adcock V. Wood, 31 Addington v. Magan, 22 Addison v. Preston, Mayor, &o. of, 496 V.Tate, 192 Adey v. Arnold, 702 V. Trinity House, Deputy Master of, in re, 339 Advocate General v. Smith, 439 African Steam Ship Co. v. Swanzy, 666 Agassiz v. Squire, 555 Aglionby v. James, 593 Agriculturist Cattle Insur. Co. v. Fitzgerald (Company), 170*; (Deed), 240 Ainslie v. Sims, 223, 535, 574 Ainsworth v. Alman, 601 Alcard v. Messon, 80 Alcenius v. Nygreu (Alien), 20; (Bail), 60 Alcock V. Alcock (Baron and Feme), 96 ; (Costs), 223 Aldis V. Fraser, 536 V. Mason, 383 Alexander v. Alexander, 260 V. Brame, 225 V. Simms, (Costs, in Equity), 222; (Shipping), 673 V. Thomas, 99 Alhusen v. Prest, (Assumpsit), 43 ; (Guarantie), 323 Allen'sWill, Trusts of, 711 , ex parte, 689 V. Davis, 31 i V. Preece, 539 V. Loder, 578 V. Williams, 579 AUeyne v. Regina, 279 AUfrey v. Allfrey, 605 Allin V. Crawshay, 655 Allison, ex parte, 380 , in re, (Affidavit), 19; (Cer- tiorari), 127 V. Monkwearmouth Shore, Township of, 637 AUum V. Boultbee, 668 Alston V. Grant, 500 V. Sims, 515 Ambergate, Nottingham and Bos- ton and Eastern June. Rail, Co. V. Midland Rail. Co., 158 Rail. Co. V. Norcliffe, 150 Ambrose v. Kerrison, (Baron and Feme), 88 ; (Money paid), 474 Ames V. Ames, 582 V. Birkenhead Docks, Trus- tees of, 479 Amies v. Kelsey, 525 Amott v. Holden, (Bankruptcy), 69; (Bond), 115 Amsinck's case, 186 Amson V. Harris (Construction of Legacy), 410 ; (Who take as Legatees), 416 Anderson v. Fitzgerald, .363 V. Guichard, 599 V. Hillies, (Payment), 526; (Principal andAgent), 608 V. Kemshead, 45 V. Lanenville, 269 V. Noble, 854 Anderson v, Thornton, S63 Anderton v. Yates, 334 Andrew, in re, 55 V. Andrew, 758 Andrews v. Chapman, 442 — — V. Decks, (Bankruptcy), 79 ; (Practice, at Law), 670 V. Diggs, 79 V. Eaton, 35 T V. Hailes,,145, 291 ! V. Marris, 343 V. Pugh, 513 V. Shakeshaft, 742 Angelo, in re, 713 Anonymous, (Attorney and Solici- tor), 46, 48 ; (Bankruptcy), 80 ; (Fine and Recovery), 308 ; (Pa- rent and Child), 502; (Practice, at Law), 561* ; (Practice, in Equity), 572, 577, 583, 587, 600 ; (Writ, Ne exeat Regno), 762 Ansell V. Baker, 288 Ansett V. Marshall, 218 Anstey v. Edwards, 277 V. Hobson, 333 Anwyl V. Owens, 349 Archer V. Baynes, 315 Archibald v. Hartley, 417 Arden v. Goodacre, (Amendment), 25 ; (Sheriff), 656 Arding v. Lomax, (Master and Ser- vant), 467 ; (Pleading, at Law), 529 Armistead v. Wilde, 356 • v. White, 356 Armstrong v. Armstrong, 668, 669 — — V. Bowdidge, 195 V. Buckland, 750 V. Burnet, 439 V. Stockholm, 597 V. Storer, 489 Arnell v. Regent's Canal Co., 686 Arnold v. Coape, 257 V. Dimsdale, 376 V. Gaussen, 376 V. Hamel, (Action), 1 4 ; (Re- venue), 644 764 TABLE OF CASES. Arnold v. Rigge, 295 Amott V. Tyrrell, 557 Ash V. Dawnay, 657 Ashford v. Haines, 424 Ashley v. Sewell, 578 Ashlin, in re, 73 Ashton V. Langdale, 490 Ashworth v. Mounsey, 478 Askew, in re (Conviction), 379 i (Master and Servant), 469 T. Millington, 589 Askham v. Barker, 555 Aspland v. Watte, 702 Asplin V. Blackman, 213 Astbury v. Belbiii, 39 V. Henderson, 505 Atherton v. Crowtlier, 415 Atkinson, in re (Bankruptcy), 76 and 79; (Insolvent), 361 , ex parte, 79 V. Abbott, 50 V. Grey, 15 V. Gylby, (Accumulation), 15 ; (Principal and Surety), 611 V. Parker, 590 V. Stephens, 665 Atlee V. Hook, 421 Attenborough v. Attenborough, 652 V. London, 525 Attorney General v. Alford, (Cha- rity), 138; (Trust and Trustee), 706 V. Andrews, 347 V. Armitstead, 138 V. Beverley, Corporation of, 131 — — V. Birmingham and Oxford June. Rail. Co., (Injunc- tion), 354; (Railway), 625 V. Bradbury, 686 V. Carrington, 136 V. Chambers, 229 V. Chester, Corporation of, (Practice, in Equity), 591, 695 V. Chesterfield, Earl of, 610 V. Clapham, (Practice, in Equity), 584; (Wesleyan Trusts), 740 V. Dalton, 135 V. Davey, 136 v. Donnington Hospital, Go- vernors of, 579 V. Eastlake, (Charity), 131; (Injunction), 365; (Way), 739 V, Ewelme, (Almshouse), 131 V. Exeter, (Mayor, &c. of), (Charity), 134; (Practice, in Equity), 602 V. Great Northern Rail. Co., 624 V. Haberda.sher8 Co., 136, 137 V. Hall, 135 V. Hardy, 740 V. Henderson, 579 Attorney General v. Henniker, 440 V. Hudson, 680 V. Hull, 492 V. London, Corporation of,574 V. Louth Free School, 133 V. Magdalen College, 447 V. Metcalfe, 440 V. Moor, 132 T. Murdoch, 130 V. Napier, 439 V. Norwich Corporation, 498 V. Powis, Earl of, 700 V. Pretyman, 135 V. Radloff, 760 T. Rees, 229 V. Robson, 643 T. Rochester, Corporation of, 131, 133, 138 V. St. Cross Hospital, (Charity) 131, 133, 136» ' T. Salkeld, 137 V. Sheffield Gas Consumers' Co., 352 V. Sherborne Grammar School 136 V. Smythies (Apportionment), 27; Charity, 138 v. Southmolton, Corporation of, (Charity), 130, 1S6 V. Stephens, 145 V. Sturge, 132 V. Wigan, Mayor, &c. of, 498 V. Wilkins, 728 V. Worcester, Bishop of, 132 V. Wyggeston Hospital, 137 V. Wynford, 441 • V. York, Archbishop of, 133 Attorney General of the Prince of Wales V. Bristol Waterworks, 687 Attwater v. Attwater, (Devise), 247; (Legacy), 437; (Will), 746 Attwool V. Attwool, 647 Atwood V. Ernest, 244 Austin V. Llewellyn, 446 V. Manchester, Sheffield and Lincolnshire Rail. Co., (Carrier), 122;* (Rail- way), 621 V. Mills, (Action), 9 ; (Ar- rest), 39 Australasia, Bank of, V. Harding, 8 V. Nias, 8 Australia, Royal Bank of, in re, (Company), 178, 181* Avanyo v. Mudie, 207 Avards v. Rhodes, 338 Aveling v. Martin, 673 Avery v. Langford, 197 V. Scott, 29 Awde v. Dixon, 100 Ayles V. Cox, (Specific Perform- ance), 677; (Trust and Trustee), 714 Backhouse v. Taylor, 610 Bacon v. Cosby, (Evidence), 292; (Legacy), 418 ; (Will), 759 Badeley v. Vigours, 11 v. Vigurs, 385 Bagge, ex parte, 183 V. Mawby, 267 Bagne v. Dumergue, 438 Bagshaw v. Winter, 91 Bailey, ex parte, (Attorney and So- licitor), 48 ; (Bankrupt- cy), 66; (Friendly So- ciety), 317; (Justice of the Peace), 380 ; Lands Clauses Act), 391 ; (Mas- ter and Servant), 470 v. Boult, 441 V. Collett, 730 V. Hughes, 657 V. Richardson, 729 Baillie v. Jackson, (Evidence), 285 ; (Settlement), 652 Baily, ex parte, 184 « V. Curling, 36 Bainbridge v. Cream, 749 V. Wade, 323 Bainbrigge, re, 54 V. Baddeley, 598 — V. Bainbrigge, 598 v.Orton(Pleading, in Equity), 539 ; (Practice, in Equity), 589, Baines v. Holland, 663 V. Ridge, 572 Baker, in re, 437 V. Anthony, 578 V. Baker, 437 V. "Bradley, 717 V. Heard, 6 V. Marsh, 494 V. Read, 575 V. Rusk, 606 Baldwin v. Baldwin, 465 V. Bauerman, 18 V. Rogers, 425 Balfe v. West, 322 Balguy V. Broadhurst, (Pleading, in Equity), 637 ; (Practice, in Equity), 585 Ball V. Bowden, 72 Balzey v. Collett, 601 Bamberger v. Commercial Credit Mutual Assur. Co., 243 Bamfield v. Tupper, 452 Bamford v. Chadwick, 247 V. Lord, 247 Bancks v. Ollerton, (Devise), 269; (Fine and Recovery), 307 Bandy v. Cartwright, (Covenant), 225 ; (Landlord and Tenant), 387 Bangley's Trust, in re, 711 Banks v. Banks (Power), 557; (Practice, in Equitv), 59 399 ' Harcourt v. Seymour, 202 Harding, ex parte, 70 V. Hodgkinson, 760 '" v. Roberts, 258 ' Hardingham v. Thomas, (Will), 747,754 • Hardwiok, ex parte, 399 Hardy v. Dartnell, 573 V. Hull, 222 — ^v. Walker, 341 Hare v. Fleay, (Arbitration), 32, 37 - v. Hyde, 38 Hares v. Stringer, 508 Harford v. Lloyd, (Legacy), 428 ; (Practice, in Equity), 686 V. Rees, (Practice, iri Equity), 588, 589 Hargrave v. Hargrave, 603 Hargraves v. White, 590 Hargre^yes v. Wright, 535 Harland v. Binks, 235 Harley v. Harley, 752 Harman v. Johnson, (Partners), 516; (Prahtice, at Law), 567 v. Richards, 733 Harmer v. Bean, 388 v. Priestley, 485 Harnor v. Groves, 289 Harrington y. Moffiit, 417 ' v. Ramsay, (Inferior Court), 341* 345 Harris, in re, (Devise), 253 ; (Le- gacy), 440 y. Carter, 667 ^ V, Dreesman, (Inferior Court), 345; (Shipping), 658 v. Farwell, 16 v. Great Northern Rail. Co., 370 ^ v. Montgomery; 563 Mott, 682 ■ v. North Devon 150 . y. Phillips, 530 ■ y. Poyner, 742 ■ v. Watkins, 261 Rail. ' Co., 776 TABLE OF CASES. Harris v. Willis, 9 Harrison, ex parte, (Company), 185! (Highway), 328 's Tnists, in re, 701 V. Brown, 5(18 V. Creswick, 32 V. Goodall, 335 v. Great Northern Kail. Co., (Company), 161 ; (Judg- ment), 370 T. Kennedy, 487 T. Lane, 17 V. Masselin, 710 T. Kandall, (Trust and Trus- tee), 705,706 T. Round, 649 T. Southampton Corporation, (Evidence), 285; (Mort- main), 491 V. Tysan, PS Harrod v. Harrod, 464 Harrold, in re, 593 Harryman v. Collins, 481 Hart, in re, 459 T. Baxendale, 123 V. Clarke, 474 v. Eastern Union Rail. Po., 169 V. Tribe, (Infant), 332; (Le- gacy), 416,418, 419 V. Tulk, 743 Hartland v. Dancox, 592 Hartley v. Tribber, 416 Hartnall's Trusts, in re, 712 Hartwell v. Colvin, 601 Harvey, ex parte, 612 's Settlement, in re, 222 V. Brook, 596 T. Diverii, 218 V. Hudson, ( Pleading, at Law), 532; (Prisoner), 614 v. Palmer, 41 V. Starcey, 551 V. Towers, 105 Harwich, Mayor, &c. of, in re, 495 Hastie v. Couturier, 664 Hastings v. Brown, 521 Hatch V. Hatch, 751 T. Searles, (Bills and Notes), 101; (Costs, in Equity), 220 v. Skelton, 471 Havens v. Middleton, 407 Haverd v. Davis, 246 Hawker v. Field, 647 V. Hallewell, 361 Hawkes v. Eastern Counties Rail. Co., 622 Hawkins, in re, 302 T. Akril, 19 v. Baldwin, 761 V. Gardiner, 711 v. Gathercole, (Judgment), 370; (Practice, in Equity), 584 Hawksbee v. Hawksbee, 250 Hawtry v. East and West India Docks, &c. Rail. Co., 153 Hay T. Ayling, 322 Hay v. Flintoff, 185 T. Willoughby, (Company), 185; (Practice, in Equity), 590 Hayes v. Keene, 344 V. Kindersley, 93 Haylingv. Okey, (l?alse Imprison- ment), 304 ; (Landlord and Te- nant), 387 Haylock t. Sparke, (Action), 14; (Articles of the Peace), 40 ; (Jus- tice of the Peace), 377 Hayne V. Robertson, 19 Haynes v. Forshaw, 299 • — — V. Haynes, 438 Hayward v. Parkes, (Contract), 197; (Lease), 405 V. Price, 579 Haywood, in re, 67 Heald v. Carey, 697 V. Kenworthy, 608 Heale v. Knight, 441 Healey v. Spence, 2 Heap V. Tonge, 648 Hearn v. London and South-West- ern Rail. Co., 123 Heath, ex parte, 80 , in re, (Bankruptcy), 80; (Trust and Trustee), 704 's Patent, in re, 522 V. Chapman, (Charity), 130; (Practice, in Equity), 587 ■ V. Lewis, (Legacy), 436; (Practice, in Equity), 590 V. Samson, 270 V. Smith, 518 V. Unwin, 523 V. Weston, 751 Heathcote's Divorce Bill, (Baron and Feme), 96 ; (Evidence), 268 V. North Staffordshire Rail. Co., 678 Heaton v. Dearden, 512 Hebblethwaitev. Leeds andThirsk Rail. Co., 18 Hedges v. Hedges, 484 Hegarty v. Milne, 684 Hele V. Bexley, (Elegit), 277; (Mortgage), 488; (Practice, in Equity), 603 Hellawell v. Eastwood, (Distress), 266; (Court Baron), 347; (Re- plevin), 643 Helsham v. Blackwood, (Estoppel), 281; (Libel), 443 Kernel Hempstead, Coronership of, in re, 762 Hemsworth, in re, 79 Henderson, ex parte, 184 T. Eason, 4 v. Gilchrist, 299 V. Pbilipson, 293 V. Thomas, 575 Henniker v. Attorney General, 440 V. Henniker, 685 Henning v. Burnet, 241 v. Burnett, 738 Hereford, Bishop of, ex parte, 205 V. Anon., 140 Heritage, ex parte, 175 Hernaman v. Smith, 340 V. Barber, (Bankruptcy), 65, 68 Hersey v. Giblett, 406 Hervey v, Fitzpatriok, 373 V. Smith, 349 Heseltine v. Siely, 360 Hesketh v. Fleming, 562 Heslop, ex parte, 76 V. Baker, (Bankruptcy), 75*, 77 V. Chapman, 460 Heston, Churchwardens, &c. of, v. St Bride, Churchwardens, &c. of, (Lunatic), 457; (Poor), 548 Heward v. Wheatley, 62* Hewetson v. Todhunter, 586 Hewison v. Negus, 648 Hewitson v. Todhunter, (Legacy), 434; (Practice, in Equity), 603 Hewitt V. George, 410 V. Ishano, (Lease), 406; (Li- cence), 444 V. Loosemoore, 482 T. Macquire, (Evidence), 291 ; (Pleading, at Law), 533 V. Paterson, 214 Hewson, in re, (Baron and Feme), 87; (Lunatic), 455 Hextall V. Cheatle, 588 Key's Will, in re, 714 Heywood v. Potter, 208 Hiohens v. Kelly, 510 Hickens V. Kelly, 510 Hickie v. Salomo, (Costs, at Law), 211; (Inferior Court), 338 Hiokling v. Boyer, 438 Hicks v. Sallitt, 746 Higgins v. Frankis, 488 Higginson, ex parte, (Bankruptcy), 64, 81 High Court of Chancery, Suitors of, in re, 689 Hight, ex parte, 180 Hiles v. Moore, 487 Hill V. Audus, 666 V. Bexley, 453 V. Edmonds, 486 • V. Great Northern Rail. Co. (Lands Clauses Act), 391; ( Specific Performance), 679 ' V. Philp, 617 V. Pritchard, 265 V. Regina, 461 V. Swift, 338 V. Travis, 578 Hillman v. Westwood, 754 Hills v. Laming, 242* V. Macrae, (Parties to Suits), 508; (Practice, in Equity), 581 v. Mitson, 360 V. Rowland, 354 Hinckley v. Stafford, Mayor, &c. of, 686 Hind V. Poole, 484 TABLE OF CASES. 777 Hinder.v. Streeten, 731 Hindle v. Taylor, 429 Hindson v. Weatherill, (Attorney and Solicitor), 51; (Practice, in Equity), 589 Hinton, in re, (Attorney and Soli- citor), 48, 55 V. Galli, 598 V. Meade, 36 Hioms V. Holtom, 482 Hitchcock V. Carew, 293 Hitchings v. Hollingsworth, 566 V. Kilkenny, &c. Rail. Co., 191 Hitcliins v. Hollingsworth, 279 Hitchman v. Stewart, 613 Hobbs V. Parsons, 427 Hobby V. Allen, 89 V. Collins, 89 Hobson V. Kingston- upon -Hull, Mayor, &c. of, (Municipal Corporation), 496; (Po- lice Officer), 540 V. Neale, (Legacy), 440, 442; (Practice, at Law), 568 ■ V. Sherwood, 599 Hochster v. De Latour, 199 Hockpayton v. Bussell, 359 Hodges, in re, 594 V. Ancrum, 566 V. Blagrave, 409 Hodgson's Settlement, in re, 712 ■ , ex parte, 82 , in re, (Bankruptcy), 82 ; (Debtor and Creditor), 236 's Trust, in re,- 420 V. Powis, 151 Hodson's Will, Trusts of, in re, 711 V. Micklethwaite, 425 Hoghton V. Hogbton, (Evidence), 286, 287; (Parent and Child), 501 Holdgate v. Slight, 47 Holding V. Barton, 580 Holford V. Yate, (Mortgage), ,487; (Practice, in Equity), 577- Holgate V. Haworth, 17 Holland, re, 55 V. Fox, 524* V. Lea, 113 V. Vincent, 215 Holliday v. Overton, (Deed), 242 ; (Power), 551 Hollingsworth v. Shakeshaft, (Exe- cutor), 299 ; (Pleading, in Equity), 535; (Will), 742 HoUingworth, ex parte, 81 in re, 81 Holloway v. Holloway, 350 V.Phillips, 581 Holman v. Loynes, 51 Holme, ex parte, 186 V. Browne, 355 Holmes's Trust, in re, 411 V. Bagge, 304 V. London *^nd North- Western Rail. Co., 521 Digest, 1850—1855. Holmes V. Penney, (Attorney and Solicitor), 53; (Costs, at Law), 210 V. Service, 562 V. Sixsmith, (Evidence), 283; (Stamp), 683 V. Sparks, 656 V. Staines, 107 V. Tutton, (Attachment), 45; (Bankruptcy), 73 Holsgrove v. Hedges, 361 Holt, ex parte, 180 V. Daw, 738 V. Ely, 475 Holthouse, ex parte, 84 , in re, 82 Homer v. Gould, 423 Homersham v. Wolverhampton Waterworks Co., 160 Honeyman v. Lewis, 567 ■ v. Marryat, 723 Honiball v. Bloomer, 525 Honywood v, Honywood, 335 Hood v. Clapham, 755 Hook, ex parte, 190 Hookpayton v. Bussell, (Action), 9; (Insolvent), 359 Hooper, ex parte, ,256 Hope V. Beadon, 288 V. Hope, 334 V. Liddell, (Attorney and So- licitor), 59; (Evidence), 294 v. Threlfall, (Practice, in Equity), 586, 587 Hopkin V. Hopkin, 585 Hopkins v. Tanqueray, 727 Hopwood v. Derby, 593 Horlock V. Horlock, 652 V. Smith, 653 Horn V. Coleman, 414 V. Kilkenny and Great South- ern and Western Rail. Co., 192 Hornby's Patent, in re, 522 Horner's Trusts, 201 V. Gould, 423 V. Horner, 538 Horton v. Westminster Improve- ment Commissioners, (Bond), 115; (Costs, at Law), 209; (Es- toppel), 281 Horwood V. Griffith, 756 Hough's Estate, in re, 757 Houghton V. Bitrnett, 579 Howard, ex parte, 47 — , ill re, 713 V. Brownhill, 6 V. Howard, 588 V. Hudson, 282 V. Kershaw, 501 V. Prince, 601 V. Remer, (Action), 14; (In- ferior Court), 342 Howell V. Rodbard, 216 V. Williams, 579 Howes V. Barber, 217 Hubbard, re, 57 Hubbersty v. Ward, 667 Huddleston v. Whelpdale, 409 Hudson V. Carmichael, 93 V. Roberts, 24 Hues V. Jackson, (Legacy), 430, 436 Huffam V. Hubbard, 430 Huggett V. Lewis, 505 Hughes, ex parte, 470 V. Clark, 406 V. Ellis, 265 V. Great Western Rail. Co., 123 V. Humphreys, 739 V. Key, 702 V. Lumley, (Ejectment), 274; (Error), 280; (Judgment), 371 V. Morris, 669 V. Paramore, 451 V. Wells, (Baron and Feme), 93 ; (Escheat), 280 ; (Power), 553 ; (Trust and Trustee), 708 V. Williams, (Mortgage)) 478,, 489 Hull and Selby Rail. Co. v. North- Eastern RaiL Co., 596 Hulse, ex parte, 39 Hume v.. Bentley, (Specific Per- - formance), 678; (Vendor and Purchaser), 721 Hume V. Gilchrist, 270 i Humfrey v. London and North- western Rail. Co., 695 :■! Humphrey v. Humphrey, 417 V. Pearce, 34 Humphreys v. Jenkinson, 25 V. Jones, 160 Humphries v. Brogder, 473 : V. Smith, 358 Hungerford's 'Trusts, 400 Hunt, ex parte, (Bankruptcy), 82, - 87 V. Bishop, 226 V. Great Northern Rail. Co., 339 , ., . V. Hecht, 317 " ■■ V. Hewitt, 617 ■ V. Jessel, 647 V. Penrice, 538 V. Remnant, (Deed), 241; (Lease), 408 V. Wray, (Costs, at Law), 2 10 ; (Inferior Court), 346 Hunter, ex parte, 188 ; — — V. Emmanuel, (Amendment), 21; (Pleading, at Law), 533 V. Liddell, 217 Huntley, ex parte, 35 Hurst, in re, 307 ■ V. Hurst, (Practice, in Equity), 580; (Settlement), 654 Husband V. Davis, 113 Huskisson v. Bridge, 420 Hutchinson 's'Settlement, in re, 652 V. Greenwood, 277 V. Hutchinson, 591 50 778 TABLE OF CASES. Hutchinson v. Newark, 230 James v, Wynford, (Devise), 264; V. Sidney, 324 (Will), 747 . Surrey Consamers Gaslight Jameson v. Stein, 464 and Coke Association, 169 Hutton V. Cooper, 78 T. Cruttwell, 65 V. Rosseter, 300 V. Smith, 605 V. Thompson, 182 Hyatt V. Griffiths, 382 Jamieson v. Trevelyan, (Costs, at Law), 210; (Devise), 249; (Le- gacy), 431 Janes v. Whitbread, (Debtor and Creditor), 235 ; (Deed), 238 ; (Interest), 366 Jardine, in re, 72 Hyde v. Manchester, Mayor, &c, Jarvis v. Peele, 504 of, 394 Hyder v. Coleman, 219 Hyue T. Dewdney, 99 lUingworth v. Cooke, 741 Imperial Gas Co. v. London Gas Co., 449 Imperial Salt and Alkali Co., in re, 188 Imray v. Magnay, 656 Incorporated Church Building So- ciety V. Coles, 492 Independent Assurance Co, in re, Jenkin v. Row, 489 Jaynes v. Hughes, (Beed), 241; (Limitations), 446 Jeakes v. White, 314 Jebb V. Togwell, (Power), 556; (Practice, in Equity), 592 Jefferies v. Biggs, 577 V. Michell, (Legacy), 413, 432 Jefferys v. Boosey, (Copyright), 205, 208 Jeflries v. Williams, 473 Jenings v. Bailey, 418 Jenkins v. Betham, 141 v. Bryant, 50 • v. Robertson, (Administration of Estate), 16; (Principal and Surety), 612, Jenkinson v. Harcourt, 484 (Company), 170, 177*, 180 India and Australia Mail Steam- Packet Co., in re, 183 India and London Assurance Co. v. Dalby, 363 Ingate V. Christie, 119 Inge V.Birmingham, Wolverhamp- Jenkyn v. Vaughan, 581 ton and Stour Valley RaiL Co, Jennings v. Broughton, 728 391 _ ~ Inglis V. Great Northern Rail. Co., ISO Innes v. Sayer, 552 Irby, in re, 455 Iredell v. Iredell, 700 Irish West Coast Rail. Co., in re, 178 Isaacs v. Weatherstone, 597 . V. Wyld, 338 Isberg V. Bowden, 647 Ive V. King, 424 Ivens V. Elwes, 236 Ivison T. Gassiot, 236 V. Grassiot, 586 Jackson v. Burnham, 359 v. Chichester, 360 V. Craig, (Costs, in Equity), 219; (Will), 741 V. Jackson, 676 v. Marshall, 279 v. Turnley, 590 Jacobs v. Jacobs, 743 V. Richards, V. Paterson, 17 V.Roberts, 106 Jervoise v. Jervoise, 90 Jessop V. Lutwyche, 322 Jewell V. Parr, 100 Job V. Butterfield, 731 Jodrell V. Jodrell, 650 Johns V. Mason, 576 Johnson, ex parte, (Bankruptcy), 72, 73, 82, 84 , in re, 35 V. Ball, 420 V. Cope, 419 V. Diamond, 45 V. Gibson, 233 V. Harris, 295 V. Holdsworth, 371 V. Latham, (Arbitration), 30, 31, 32*, 38 V. Lucas, 6 V. Shrewsbury and Birming- ham Rail. Co., 199 V. Smiley, 725 Johnston v. Newton, 299 V. Webster, 470 (Mortgage), 486; (Practice, in Equity), 572, Johnstone, ex parte, 64 602 , in re, 64 James, ex parte, (Bankruptcy), 86; Joint-Stock Companies Winding- (CoTnpaoy), 173 up Acts, in re, (Company), 170, , in re, 56 175, 189 V. Cochrane, 60; (Covenant), Jolly v. Hancock, (Fine and Re- 225; (Mine), 472 covery), 327; (Vendor and Pur- V. Harding, 692 chaser), 725 V. Isaacs, (Accord and Satis- Jonas v. Adams, 345 faction ),4; (Payment), 526 Jonassohn v. Great Northern Rail. . V.Rice, 719 Co., 165 Jones, ex parte, (Bankruptcy), 71; (Justice ef the Peace), 379 's Settled Estates, 596 Trust, 441 V. Bailey, 372 V. Batten, (Praotice,in Equity), 572, 581 V. Beach, 612 V. Cannock, (Error), 279 ; (Lease), 407 V. Currey, 342 V. Davies, 698 v. Fo.xall, 701 V. Gibbons, 644 V. Giles, 739 V. Greatwood, 419 V. Gretton, (Bills and Notes)^ 105; (PaymentX 627 V. Harrison, 213 V. Howell, 582 V. Hutchinson, 22 V. Ives, 36 v. James, 591 V. Johnson, (Borough Rate), 638; (Replevin), 643* V. Jones, 616 V. Maggs, 691 V. Morrall, 299 V. Nicholson, 662 V. Phillips, 325 V. Powell, 219 V, Robinson, 511 V. Thomas, 367 V. Tinney, 487 V. TurnbuU, 293: V. Welch, 219 Jorden v. Money, 353 Jortin V. South-Eastern Rail. Co., 148 Jonle V. Taylor, (Action), 13; (In^ ferior Court), 346 Joyce, ex parte, (Churchwardens), 139; (Mandamus), 461 Judkins v. Atherton, 369 Justice V. Gosling, 540 Kane v. Reynolds, 220 Kavanagh v. Morland, 257 Kay V. Smith, 586 Keane v. Reynolds, 381 Keates v. Cadogan, 311 Keene's Executors' case, 181 Kekewicb v. Manning, 733 ■ V. Marker, 649 Kelly v. Webster, 313 Kelsey, in re, 507 Kelson v. Kelson, (Practice, in Equity), 594; (Voluntary Con- veyance), 733 Kemball v. Walduck, 576 Kemble v. Kean, 348 Kemp V. Balls, 4 V. Hurry, 357 V. Sober, 228 V. West of London and Crys- tal Palace Co., 625 Kempe v. Kempe, 437 TABLE OF CASES. 779 Kendall, In re, 417 V. Baker, 387 V. Wilkinson, 98 Kennedy, ex parte, 87 Kennerley v. Kenneriey, 752 Kennett and Avon Canal Navigation Co. V. Witherington, (Canal), 118; (Lands Clauses Aot), 389 Kensington \. Bouvefie; (Mort- gage), 488; (Parties), 510 Kent v. Jackson, 309 Kenworthy v. Ward, 420 Keogh's Estate, in re, 330 Kepp V. Wiggett, HI Kerby v. Harding, 2ff7 Kerkin t. Kerkin, 339 Kernot v. Pittis, 358* Kerry. Ailsa, 18 V. Middlesex Hospital, 436 Kershaw v. Kershaw, 258 Key V. Cotesworth, 689 V. Key, 743 V. Thimbleby, 527 Keyse v. Powell, (Limitations), 446; (Mine), 472 Kidd V. North, 427 Kilderbee v. Ambrose, "(Clergy), 143 ; (Land Tax), 401 Kilham v. CoUier, (Highway), 326 ; (Parties), 507 Kilkenny and Great Southern and Western Rail. Co. v. Fielden, 215 Killymaenllwydd v. St. Michael's, Pembroke, 550 Kimberley v. Jennings, 348 Kimpton, ex parte, 760 V. London and North- Western Rail. Co., (Arrest), 38; (W itness), 760 Kincaid's Trust, in re, 90 King's College, Cambridge, ex parte, 400 King's College Hospital v. Wherl- don, 412 King's Estate, 251 V. Chuck, 512 ■ V. Heenan, 488 V. Isaacson, 247 V. Malloott, 487 V. Mullins, 710 V. Phillips, 710 V. Savory, 52 Kingston - upon - Hull, Governor, Oiiardians, &c. of Poor of, v. Petch, 195 Kinning, ex parte, 343 JKirby's Trust, in re, 589 V. Simpson, 13 Kirk V. Unwin, 34 Kitson V. Julian, 1 16 KoUmann's Railway Locomotive and Carriage Improvement Co., in re, 184 Knaggs V. Knaggs, 368 Knapp V. St. Mary, Willesden, 138 Knight V. Cambers, 322 V. Fitch, (Gaming), 322 ; (Stock), 68« Khightv. Fox,.(Masterand Servant), 468; (Negligence), 499 V. Knight, 604 Knott V, Cottee, (Practice, in Equity), 595; {Trust and Trustee), 709 V. Coatee, 605 Knowles. in re, 710 V. Holden, 619 Lachlan v. Reynolds, (Legacy), 434; (Vendor and Purchaser)^ 722 ' ' _ Ladbroke v. Lee, 663 ' ' Ladbrooke v. Bleadoh, 602 Lafond v. Raddock, 449 Lainson v. Lainson, (Devise), 216; (Legacy), 436 Laird, in re, 85 Lake v. Bfuttoh, 488 v. Butler, (Costs, at Law), 212; (Inferior Court), 338 V. Currie, (Power), 556, 557 V. Plaxton, 145 Lamb v. Orton, 583 Lambardev. Older, 233 Lambert v. Lomas, 585 V. St. Thomas, New Sarura, Overseers of, 505 Lambeth Charities, in re, 132 Lambie v. Lambie, 591 La Mert v. Stanhope," 576 Lamotte v. C/)6ke, 716 Lancashire and Yorkshire Rail. Co., in re, 397 v. East Lancashire Rail. Co., 1«3 V. Evaiis, (Lands Clauses Act), 396; (Practice, in Equity), 575 Lancaster, ex patte; 363 Landmann v. Entwisle, 168 • Land- Tax Comihissioners, in re, 401 Lane v. Debenham, 708 V. Green, 412 V. Hill, 6 V. Hooper, 279 V. Hoi-lock, 719 ^ V. Jackson, 729 V. Smith, (Company), 148 Langdale v. Gill, 598 Langford v. May, (Evidence), 293;j (Injunction), 355 Langham's Trust, 492 Langhorn v. L9.nghorn, 714 Langmead's Trusts, 513 Langton v. Lan^ton, 481 Laslett V. Cliffe, 487 Latham v. Spedding, (Costs, at Law), 211,213; (Inferior Court), 339 Latt V. Booth, 333 Laurie v. Clutton, 441, 556 Laveroni v. Drury, 666 Lavey v. Regina, 528 Law V. Blackburrow, 33 Law V. London Indisputable Life Policy Co., (Insurance), ^62; (Practice, in Equity), 595 Lawes, ex parte, 182 Lawrence, in re, 48 V. Boston, 685 v.GreatNorthern Rail.Co,394 Lawton, ex parte, 174 v. Campion, 243 v. Swetenham, 655 Laxton v. Eedle, 426 Layton v. Layton, 91 Lazonby v. Rawson, 300 Lea (Rector of), ex parte, 398 . V. Hinton, 613 Leaf v.* Coles, (Lunatic), 455; S' (Partners), 513 ' Leake, in re, 719 LebMv. Carrell, 570 Lechmere v. Curtler, 131 Lee v. Busk, 410 ' ' -■^-^— V. Delane, 758 V. Egrembrit,. 648 V. Flood; (Administration Of Estate), 17; (Partners), 516 'ii' V.Hart, 66 y. Head, 556 V. Hutchinson, -504 V. Lee, (Practice, in Equity), 573^ 690, 605 V. Lys, 605 y.^mith, 382 ' Leech v. Clabbunl, 562 Leeds, Duke of, v. Amherst; Earl of, 5 Leeming, in re, 333 ■ V. Snaitli, 198 Lees, ex parte, 81 v. Laforest, 516 ' ' Le Fenvre y; Lankester, 493 Legge, ex parte, 79 , in re,' 807 Leggo v. Young, 31 Leideman v. Schultz, 657 Leigh V. Byron, 417 y. Leigh, 416 y. Mosley, 749 Lennard V. Robinson, 610 Leroux v. Brown, 313 Leslie y. Smith, 509 V. Tompson, 721 L'Estrange v. L'Estrange, 847 Lethbridge y. Thurlow, 435 Lettv. Randall, (Legacy), 433,437; .(Will), 748 ' - Letts V. London and Blackwall Rail. Co., 197 y. London Corn Exchange Co., 692 Leverick v. Mercer, 638 Levett's Trust, in re, 711 Levi V. M'Rae, 214 Levinson v. Syer, 735 Levy v. Moylan, 368 Lewellin v. Cobholdj (Baron and Feme), 95; (Practice, in Equity)^ 573 780 TABLE OF CASES. Lewin, in re, 55 's Trust, in re, 92 Lewis V. Bond, G82 V. Bright, 141 V. Clifton, (Contract), 200; (Estoppel), 2S2 V. Clowes, 589 V. Collard, 49 V. Duncombe, 489 V.Dyson, (Executor), 295; (Judgment), 370 V.Forsyth, 214 V. Hillman, 47 — — V. Lewis, 749 V. Morris, 414 V. Nicholson, (Attorney and Solicitor), 50; (Principal and Agent), 6(19 T. South Wales Rail. Co., 398 Lexden Union, Guardians of, v. Southgate, 542 Liddell v. Norton, 583 Lincoln, Mayor, Sic. of, ex parte, 132 _ _ V. Windsor, 220 Lindall v. Taylor, 671 Lindsey, Earl of, v. Great Northern Rail. Co., 624 Linegar v. Pearce, 32 V. Price, 32 Linnean Society of London v. St. Anne's, Westminster, 633 Litchfield v. Browu, 730 . v. Ready, /Ejectment), 276; (Trespass), 694 Little V. Newport, Abergavenny and Hereford Rail. Co., 622 Littledale, ex parte, 76 Littlejohns v. Household, 247 Liverpool Adelphi Loan Association V. Fairhurst, 88 Liverpool Bock Acts, in re, 398 Liverpool, &c. Rail. Co., in re, 400 Liverpool Marine Assurance Co., in re, 182 Liverpool, Mayor, &c. v. Chorley Waterworks, 353 Livingstone v. Ralli, 12 Llanelly, Local Board of Health of, ex parte, 619 Llewellyn's Divorce Bill, 269 Lloyd, ex parte, 178 V. Cocker, 660 V. Howard, 102 V. Lloyd, 429 V. Mansell, 58 V. Oliver, 100 V. Peers, 605 V. Powis, S29 V. Solicitors' and General Life Assurance Society, 581 V. Whittev, 478 v. Whitty, 294 Lohley v. Stocks, 429 Lock V. De Burgh, 27 . V. Lomas, 707 Lockttood, ex parte, 397 V. Fenton, 332 Lodge V. Pritchard, (Evidence), 290, 294 Logan v. Courtown, Earl of, 623 Loinsworth v. Rowley, 582 Lomax v. Ripley, 491 Londesborough, ex parte, (Com- pany), 187, 188 V. Mowatt, 168, 365 V. Somerville, (Apportion- ment), 26; (Legacy), 435, 441 London and Birmingham Rail. Co.'s Act, in re, 399 London and Birmingham Extension and Northampton, &c. Rail. Co., in re, (Company), 175, 176, 177, 188 London and North- Western Rail. Co.'s Act, in re, 399 V. Bradley, 396 V. Lancaster, Corporation of, 596 V. M'Michael, (Company), 149, 150, 151 V. Smith, (Lands Clauses Act), 395, 396 V. Wetherall, 621 London and North- Western Rail. Co. and Shropshire Union Rails. and Canal Co. v. Shrewsbury and Birmingham Rail. Co., 162 London and South-Western Rail. Co. ». South-Eastern Rail. Co., 166 London, BLshop of v.. M'Niel, 115 London, Brighton and South Coast Rail. Co., in re, 400 London Conveyance Co., in re, 173 London Dock Act, in re, 265 London Dock Co., in re, 653 London Gaslight Co. v. Spottis- woode, 508 London, Mayor of v. Parkinson, 144 Long V. Long, 421 V. Stone, 488 V. Storie, (Practice, in Equity), 603; (Usury), 718 V. Watkinson, 421 Longbottom v. Longbottom, (Cer- tiorari), 127; (Inferior Court), 340 Longmeid v. HoUiday, (Baron and Feme), 94; (Warranty), 735 Longstaffv. Rennison, 741 Ijongsworth's Estate, re, 26 Lonsdale v. Beckett, 703 ■ V. Berchtoldt, 747 Loosemore v. Knapman, 655 Lord Advocate v. Hamilton, 209 Lord, in re, 192 V. Colvin, (Evidence), 294; (Practice, in Equity), 583 v. Purchase, 302 V. Wightwick, 297 Lougher, in re, 388 Loveday, in re, 458 Lovegrove v. (jooper, (Administra- tion of Estate), 16; (Practice, in Equity), 595 Lovell V. Galloway, (Injunction), 356; (Practice, in Equity), 572 Low V. London and Nortli- Western Rail. Co., 160 Lowe, in re, 443, 645 's Patent, in re, 522 V. Carpenter, 273 - - V. Peskett, (Dijbtor and Cre- ditor), 234; (Executor), 298, 300 V. Thomas, 418 V. Watson, 592 Lowes V. Ives, 592 V. Lowes, 592 Lowndes' Trust, 590 V. Stamford and Warrington, Earl of, 27, 466 Luard v. Pease, 744 ~ Lucas V. Beale, (Contract), 198; (Parties), 506, 507 V. Golder, 589* V. Roberts, 52 Luckie v. Bushby, 661 Lucy, ex parte, 176 Ludgater v. Channell, 598 Lukey v. Higgs, 677 Lumley v. Gye, 565, 761 ' V. Robins, 435 — — ■ V. Wagner, 348 Lushington v. Boldero, 735 Lu.'.h's Estate, in re, 713 Lyddon v. Ellison, (Parent and Child), 501 ; (Practice,inEquity), 597; (Will), 751 Lygo V. Newbold, 468* Lyne v. Pennell, 366 Lyon V. Baker, 221 Lyons v. Hyman, 210 Lyth V. Ault, 43 Macaulay, ex parte, 397 Mac Birnie, in re, 70 's Trustees, 70 Macbride v. Lindsay, (Company), 153; (Parties to Suits), 508 M'Calmont v. Rankin, 668 M'Cormick v. Garnett, (Baron and Feme), 90 ; (Foreign Law), 309 V. Parry, (Company), 169; (Debentures), 232; (Mortgage), 477 M'Culloch V. Gregory, (Practice, in Equity), 596; (Watercourse), 726 i Macdonald v. Bryce, 422 V. Walker, 708 Macdonnell v. Evans, 760 v. Hesilrige, 648 M'Donnell v. Pope, 383 Macdougall v. Paterson, (Costs, at Law), 211; (Inferior Court), 338 M'Fee, ex parte, 341 M'Gachen v. Dew, 706 M'Gregor, ex parte, 85 Macgregor v. Deal and Dover, &c. Rail. Co, 154 V. Galsworthy, 13 TABLE OF CASES. 781 Macintosh v. Great Western Rail. Co., (Account), 5; (Evidence), 293; (Practice, in Equity), 574, S83 M'Intosh V. Great 'Western Rail. Co., 580* Macintyre v. Connell, (Com- pany), 169; (Pleading, in Equity), 536 ; (Practice, in Equity), 581 M'Kenna, in re, 87 Mackenzie v. Mackenzie, (Settle- ment), 649; (Trust and Trustee), 712 Mackenzie v. Mackenzie, 605 V. Sligo and Shannon Rail. Co., 192 M'Kenzie v. Sligo and Shannon Rail. Co., 174* M'Keone v. Seaber, 580 Mackinnon v. Penson, (Action), 12; (Highway), 326 V. Stewart, 235 Maclae v. Sutherland, (Banker), 61; (Bills and Notes), 100 Maclaren v. Stainton, 348 M'Lean's Divorce, 268 M'Leod V. Annesley, 709 ■ V. Lyttleton, 574 Macnab v. Whitbread, 421 M'Neill V. Acton, 586 M'Neillie v. Acton, (Baron and Feme), 9G; (Executor), 297 Macrory v. Scott, 316 Madrali v. Thelluson, 370 Madrid and Valentia Rail. Co., in re, 175 Magawley's Trust, 699 Magdalen Land Charity, in re, 137 Magnay v. Davidson, 704 V. Edwards, ( Bankruptcy), 74; (Covenant), 227 V. Mines Royal Co., 354 Magnus v. Buttemer, 631 Maguire v. Kincaird, 566 Mahon's Trust, in re, 293 Mahony v. Kekulg, 609 Mainwaring, ex parte, 179 Mais, in re, 712 Maitland, ex parte, 171 Major V. Major, (Bond), 115; — (Costs, in Equity), 220 Malcolm V. Scott, 219 Mallalieu v. Hodgson, 237 Man V. Rioketts, 596 V. Topham, (Specific Perform- ance), 683; (Vendor and Pur- chaser), 726 Manby v. Bewicke, 223 V. Cremonini, 530 Manchester and Leeds Rail. Co., in re, 399 Manchester and Southport Rail. Co., in re, 250 Manchester and Stafford Rail. Co. V. How, 578 Manchester College, in re, (Cha- rity), 134, 136 Manchester, Sheffield and Lincoln- shire Rail. Co. V. Great Northern Rail. Co., (In- junction), 349 ; (Practice, in Equity), 593 V. WaUis, 156 Mandeno v. Mandeno, 221 Mangin v. Mangin, (Legacy), 417, 419 Mangles v. Dixon, 482 Manico, ex parte, 84 Manierev.LeicesterandKamp, 581 Manley v. Boycot, (Bill and Notes), 104; (Practice, at Law), 565 Mann v. Buckeriield, (Costs, at Law), 212 ; (Inferior Court), 337 V. Fuller, 746 — — V. Thompson, 413 Manning's Trusts, in re, 713 ' V. Phelps, 446 T. Purcell, (Legacy), 418*; 428 ; (Practice, in Equity), 585 Manser v. Dix, 615 Mansfield, Earl of, v. Ogle, (Limi- tations), 447; (Usury), 719 Manson, in re, 458 Mant v. Leith, 701 Mapp V. EUcock, (Legacy), 435; (Practice, in Equity), 590 Mardall v. Thelluson, 302 Marianski v. Cairns, (Amendment), 21; (Evidence), 291 Maries v. Maries, 50 Marker v. Kenrick, 15 V. Marker, (Injunction), 347; (Parties to Suits), 507 Markbam r. Ivatt, (Legacy), 415, 417 Marks v. Hamilton, (Insolvent), 359; (Insurance), 364 Markwell, in re, 129 's case, 180 Marlborough, Duke of, v, St. John, 735 Marriott v. Turner, 751 Marryat v. Marryat, 596 Marsden v. Blundell, 578 V. Wardle, 618 Marshall v. Bremner, 755 Fowler, 90 NichoUs, 10 v. Sharland, 66 V. Sladden, 708 V. York, Newcastle and Ber- wick Rail. Co., 120 Marson v. Lund, 192 Martin, in re, 397 v. Forster, 335 V. Great Northern Rail. Co., 120 ■ V. Hadlow, 591 V. Hemming, 571 V. Hewson, 322 V. Pycroft, 676 V. Wellstead, 491 Martyn, ex parte, 82 V. Clue, 384 Marygold, in re, 64 Marylebone Vestry v. Zoological Society of London, 633 Mash, re, 57 Mason v. Clarke, 420 V. Harvey, 36 i Masselin's Trusts, in re, 710 Massey V. Goodall, 386 Masterman v. Midland Great Western Rail. Co., Ireland, 574 Masters v. Johnson, 38 v. Lowther, (Affidavits), 1 8 ; (Sheriff), 656 Mather v. Nortoii, 263 ; Matheson, ex parte, 83 Mathew v. Brise, 334 Mathews v. Gardiner, 248 ■ v. Livesay, 217 Mathison v. Clarke, 489 Matthew v. Osborne, (Copyhold), 204; (Ejectment), ?76 Matthews, ex parte, 46 V. Bagshaw, 608 V. Pincomb, 577 V. West London Waterfrcii'ks Co., 468 Mattison v. Hart, 640 Maude v. Maude, 581 Maudslay; ex parte, 183 Mauser v. Dix, 615 Mawby, ex parte, 139 Mawer's case, in re, 762 Mawhobd T. Milbanke, &3 Mawly, ex parte, 461 Mawson v. Blane, 333 Maxwell v. Maxwell, 759 ' May V. Biggenden, 589' Mayer V. Burgess, 345 Mayhew,'ex parte, 185', y V. Suttle, 465 , , Mays V. Caniiel, 33 -" Mead V. Bashford, 453 ' ''^ : Meadows T. Ttfeaidows, 477'' ' Mears v. Best, 487 Meddowcroft v. Campbell, 511 Medlicott v. Williams, 570 Medwin, ex parte, 368 Meeds v. Wood, (Devise), 250, 2^0 Meek v. Ward, (Practice, in Equity),' 582, 586 ' Meeus V. Thellusson, (Action), 8; (Foreign Law), 309 Meggison v. Bowes, (Landlord and Tenant), 388 ; (Replevin), 643 " Mellerish v. Rippon, 106 Mellers y. Devonshire, Duke of, 407 • ' Melling v. Bird, 400 V. Leak, 711 Mellor T. Leather, (Pleading, at Law), 532; (Police), 540 ' Melville v. De Wolf, 668 _ ^ Menzies v. Connor, 220 Mercer, ex parte,, 191 Mercers Co.v. Withaiii Navigation Co. and Great Northern Rail. Co., 585 782 TABLE OF CASES. Merchant Traders* Ship Loan and Assur. Association, in re, 188 (Chappie's case), 182 Meredith v. Gittens, (Costs, at Law), 2H; (Practice, at Law), 570 V. Meigh, 316 V. Watson, 271 Mesnard v. Welford, 701 Messiter v. Rose, 531 Messon v. Alcard, 80 Metcalf V, Hetherington, 674i Metherell, ex parte, 397 Methold V. Turner, 741 Metrbpolitan Carriage Co. (Clarke's case), 190 Metropolitan Rail. Junction Co., (Maikwell's case), 180 Metzner v. Bolton, 23 Meux's Executors, ex parte, 181 Mews V, Mews, 93 Meyer's case, 185 V. Simoiison, 742 Meynell v. Surtees, 682 Meyrick's Charity, in re, 129 Estate, in re, 712 Michelson v. Nicol, 669 Micklethwait v. Winter, 329 Middleton v. Losh, 691 T. Middleton, (Devise), 261 j (Will), 758 V. Younger, 597 Midland Great Western Railway of Ireland v. Leech, 159 Midland Rail. Co. \r, Ambergate, Nottingham and Boston and Eastern June. Rail. Co., 625 V. Brown, 222 Midland Union, Burton -upon - Trent, &c. Rail. Co., in re, (Com- pany), 176, 180» Milcham's Trust, in re, 597 Mildmay V. Methuen, (Administra- tion of Estate), 15; (Practice, in Equity), 594 Miles V. Durnford, 297 Milford V. Perle, 653 Miller v. Chapman, 412 V. Huddlestone, 431 V. Priddon, 704 V. Salomons, 50O Millican v. Vanderplank, 595 Mills V. Brown, 428 V. Brewitt, 437 V. Rydon, 139 Millward v. Littlewood, 465 Milne t. Gilbert, (Legacy), 414; (Practice, in Equity), 597 V. Marwood, 669 • V. Milne, 517 Milner v. Field, (Contract), 199j (Pleading, at Law), 530 Millies, in re, 29 V. Dawson, 105 Miner v. Baldwin, 438 Mines Royal Society v. Magnay, (Lease), 408 ; (Pleading, at Law), 531 Minet v. Leman, 294, Minn v. Stant, (Parties), 508; (Pleading, in Equity), 574 Minnitt, in re, 73 Minter, re, 47 Mitchell V. Crasweller, 467 V. Render, 338 Moffat V. Burnie, (Parties), 509; (Will), 746 Moffatt V. Dickson, 460 V. Laurie, 198 Mole, in re, 222 Moller V. Young, 671 Monday v. Waghorn, {Baron and Feme), 96; (Practice, in Equity), 600 Monmouthshire and Glamorgan- shire Banking Co., in re, (Bank- ruptcy), 70; (Company), 173, 186 Money, in re, 601 V. Jorden, 355 V. Money, 335 Monrow v. Taylor, 676 Montagu v. Kater, 559 Montague v. Montague, (Legacy), 432; (Power), 557; (Set- tlement), 658 V. Perkins, (Bil)s and Notes), 101; (Limitations), 449 V. Smith, 373 Montova v. London Assurance Co., 660 ' Monypenny v. Dering, 245 Moodie v. Bannister, 511 Moore, in re, (.Administration of Estate), 17 ; (Lunatic), 458 T. Carisbrook, Overseers of, 604 V. Darton, 270 V. Prance, 51 V. Shepherd, (Limitations), 448 V (Harbour), 626* V. Smith, 47 • V. Woolsey, 364 Moores v. Whittle, 261 Moorhouse v. Colvin, 197 V. Gilbertson, 505 More's Trust, in re, 753 Morewood v. Pollok, 665 Morgan v. Couchman, (Estoppel), 282; (Principal and Agent), 607 V. Hatchell, (Infant), 333; (Practice, in Equity), 594 v. Holford, (Devise), 251; (Frauds, Statute of), 316 V. Jones, (Interest), 366; (Judgment), 369; (Mort- gage), 488 T. Marquis, 77 v. Milman, 552 V. Morgan, (Legacy), 429; (Practice, in Equity), 591, 602; (Thellusson Act), 690*; (Will), 755* V. Pike, (Amendment), 22; (Mortgage), 480 Morgan v. Thomas, 296 v. Whitmore, (Bankruptcy), 77 ; (Evidence), 290 Morison v. Moat, 358 Morland v. Isaacs; 233 Morley's Will, in re, 251 Mornington v. Mornington, (Costs, in Equity), 222; (Trust and Trustee), 714 V. Keane, 222 Morrell v. Fisher, 222 V. Tinkler, 594 V. Wootten, (Assumpsit), 41; (Practice, in Equity), 582 Morris, in re, (Attachment), 44; (Bankruptcy), 81 V. Bosworth, (Costs, at Law), 213; (Practice, at Law), 570 V. Islip, 489 V. Morris, 256 Morrison, ex parte, 179 , in re, 7 1 V. General Steam Navigation Co., 673 V. Hoppe, 752 V. Moat, 348 V. Morrison, 1 93 Morritt v. Walton, 579 Mortimer v. Hartley, 254 V. Watts, 707 Morton v. Copeland, 207 Mosley v. Hide, 720 Moss, in re, (Attorney and Solicitor), 54, 55, 56 V. Bainbrigge, (Attorney and Solicitor), 51, 52 v. Barter, 558 v. London, Commissioners of Sewers of, respondents, 640 Mnssop V. Great Northern Rail. Co., 343 Mostyn, in re, 67 V. Mostyn, 412 Mount, ex parte, 458 V. Mount, 650 Mountcashel v. Barber, 143 Mountney v. Collier, (Inferior Court), 339, 346 Mousley v. Ludlam, 386 Mowatt, ex parte, 1 85 v. Londesborough, 168 Moylan, in re, 361 Moyse v. Dingle, 570 Mucklow V. Whitehead, 217 Mudd v. Suckermore, 593 Muirhead v. Evans, 374 Mules V. Jennings, 441 Mullins V. Hart, 51-9 Mullock v. Jenkins, 317 Munday v. Stnbbs, 86 Mungean v. Wheatley, (Certiorari), 127, 129 Munt V. Shrewsbury and Chester Rail. Co., 622 Murray's Executors, ex parte, 17J v. Bogue, 206 TABLE OF CASES. 783 Murray v. Glasse, (Baron and Feme), 92; (Tenant for Life), 689; (Trust and Trustee), 709 V. Parker, (Deed), 243; (Lease), 409 V. Wills, 507 Murrow V. Stuart, 102 Mnrton v. Markby, 431 Musgrove v. Smith, 586 Myers v. Perigal, (Mortgage), 489; (Mortmain), 490 V. Watson, 682 Napier, ex parte, (Easement), 27S; (Mandamus), 461 Narborough and Watlington Rail. Co., in re, 173 Nash V. Hodgson, 451 V. Miller, 592 Navulshaw v. Brownrigg, (Princi- pal and Agent), 608; (Inspec- tion), 610 Naylor v. Palmer, 662 ■ ^ V. Robson, 577 Neale, in re, 333 V. Davies, 707 V. Ratcliffe, 383 Neat V. Harding, (Administration), 15; (Money had), 475 Neatherway v. Fry, 551 Neathway v. Reed, 425 Neave v. Avery, (Ejectment), ^77; (Pleading, at Law), 534 Nedby v. Nedby, (Baron and Feme), 89; (Practice,in Equity), 589 Neilson, ex parte, 172 V. Hopkins, 251 Neve T. Holland, (Baron and Feme), 96 ; (Limitations), 452 Newall V. Wilson, 524 Newberry v. Benson, 293 Newbould v. Coltman, 627 Newby v. Paynter, 722 Newcastle, &c. Banking Co., (Spen- cer's case), 182 Newcastle, Shields, and Suther- land Union Bank, in re, 189 Newcastle-upon-Tyne Marine In- surance Co., in re, 184* Newcastle - upon - Tyne, Master Pilots, Sic. of, v. Bradley, 672 Newhouse v. Smith, 484 Newington, St. Mary, Governors, &c. of Poor of Parish of, v. Hammond, 686 Newman v. Graham, 374 V. Warner, 707 V. White, 579 Newmarket Rail. Co, v. St. An- drew-the-Less, Cambridge, 636 Newry, Warrenpoint and Rostrevor Rail. Co. ». Moss, 152 Newton, ex parte, (Estoppel), 282; (Habeas Corpus), 325 V. Charlton, 582 • V. Chbrlton, 614* Newton v. Ellis, 14 V. Farrall, 369 V. Grand Junction Rail. Co., 519 V.Thompson, 581 V. Vaucher, 518 Nichol V. Godts, 198 Nicholas, ex parte, 70 Nicholl V. Chambers, 720 NiohoUs V. Diamond, 101 V. Hawkes, 26 1 V. Jones, 32 Nichols V. Haviland, 415 V. Tuck, 647 Nicholson v. Jeyes, 222 v. Sykes, (Arbitration), S3; (Costs, at Law), 216 Nicklin v. Williams, (Action), 9; (Mine), 473 Nixon V. Phillips, 718 Noble, in re, 458 's Patent, in re, 522 V. Chapman, 21 V. Meymott, 703 Noden v. Johnson, 304 Norbury's case, 180 Norfolk, Duke of, v. Tennant, 396 Norman's Trust, in re, 650 — — V. Marohant, 212 V. Mitchell, 149 Normanville v. Stanning, 588 Norris V. Cooper, 182 ' V. Stuart, 729 V. Wright, 709 Northam v. Bowden, 697 V. Hurley, 273 Northampton Charities, in re, 135 Northampton Gas-light Co. v. Par- nell, 229 North British Insurance Co. v. Lloyd, 324 Northern and Southern Connecting Rail. Co., in re, 191 Northern Coal Mining Co., in re, 182, 183 North of England Joint-Stock Banking Co., in re, 175, 181*, 184*, 185, 186, 189, 190, 191; (Ne exeat regno), 762 ^ North Staifordshire, Justices of, in re, 639 North-Western Rail. Co. v. M'Michael, 149 V. Sharp, 49 V. Whinray, 113 Norton v. Cpoper,, 489 V. Steinkopf, (Practice, in Equity), 582; (Trust and Trustee), 705 V. White, 592 Norwich, Mayor, &o. of, v. Norfolk Rail. Co., 162 Norwich Yarn Co., in re, 176 Nosotti v. Page, 233 Nottley V. Palmer, 271 Novello V. .tames, 207 V. Ludlow, 206 Nowlan v. Walsh, 430 Nurdin v. Fairbanks, 569 Nurse v. Seymour, 682 Nutting V. Hebdin, 508 Nyssen v. Ruysenaers, 60 Oakes v. Oakes, 41 8 Gates v. Hudson, (Money had), 475; (Principal and Agent), 609 O'Brien v. Kenyon, 718 v. Osborne, 236 O'Connor v. Bradshaw, (Friendly Society), 317; (Lottery), 454 , , Oddy V. Seeker, 5 Ogle V. Morgan, (Evidence), 294; (Legacy), 412' Oldaker v. Hurst, 620 Oldfield v. Cobbett, (Practice, in Equity), 589, 603 V. Dodd, 67 Old Hutttin, Overseers of," ex parte, 456 Oliver, ex parte, 236 V. Wright, 588 Ollendorff V. Black, 206 Ollerton, in re, 307 Olney v. Bates, 413 O'Neill, ex parte, 343 Onion's case, 183 — — v. Tyrer, 434 Onslow V. Londesborough, 729 Openshaw v. Whitehead, 217 Qppenheim v. Henry, 427 Orchard v. Moxsy, 214 Organ V. Brodie, 667 Orme v. Galloway, 43 Orr v. Union Bank of Scotland, 109 Orrett v. Corser, (Evidence), 286; (Trust and Trustee), 707 . Orton v. Bainbrigge, 589 , Osbaldiston v. Crowther, 578 Osborn v. Morgan, 89 , Osborne v. London Dock Co., 761 Ostell v. Le Page, (Foreign, Judg- ment), 308 ; (Pleading, in Equity), 538 ' Ostler v. Cooke, 393 ^ Oswald V. Berwick-upon-Tweed, Mayor, &c. of, 112 V. Grey, (Arbitration), 31, 36; (Landlord and Tenant), 387 Other V. Iveson, 613 , O'Toole V.Browne, 253 Oulds V. Harrison, (BillsandNotes), 102; (Gaming), 322 Oundle BreWefv Co., (Croxton's case), 177, 183 Outhwaite V, Hudson, (Inferior Court), 343, 346; (Practice, at Law), 667 Overhill's Trusts, in re, 416 Overton v. Freeman, 468 Owen, ex parte, 74 v. Bryant, 416 V. Homan,(Bond), 110; (Prac- tice, in Equity), 59S1; (Principal and Surety), 61 1 V. Routh, (Damages), 231 ; (Stock), 688 784 TABLE OF CASES. Owen V. Van Uster, (Bills and Notes), 101; (Mine), 473 Owens V. Breese, (Inferior Court), 336; (Writ of Trial), 762 Oxenham v. Ellis, 488 Oxford, ex parte, 317 Oxford and Worcester Extension, and Chester Junction Rail. Co., in re, 178, 179*, 179 Oxford, Bletohley Junction and Buckinghamshire Kail. Co.'s Acts, in re, 397 Oxford, Worcester, &c. Rail. Co., in re, 397 Oxford, Worcester and Wolver- hampton Rail. Co. V. South Staf- fordshire Rail. Co., 626 Oyle V. Morgan, 412 Padwick v. Hurst, 609 V. Knight, 230 V. Stanley, (Principal and Agent), 608; (Principal and Surety), 612 Page, ex parte, 85 V. Cooper, 699 • V. Cox, 514 V. Page, 601 V. Soper, 551 Painter v. Newhy, 724 Palk V. Skinner, 272 Palmer, ex parte, 430 V. Cooper, 525 V. Naylor, 6G2 V. Newell, 734 V. Richards, 210 V. Simmonds, 421 • V. Trower, 284 V. Wagstaffe, (Patent), 623, 525; (Practice, at Law), 570 Pararaore v. Greenslade, 731 Paris Chocolate Co. v. Crystal Pa- lace Co., 681 Parker v. Birks, 260 V. Bloxam, (Executor), 297, 302; (Trust and Trustee), 710; (Will), 751 V. Bristol and Exeter Rail. Co., (Carrier), 125; (Cer- tiorari), 127; (Money had), 475 V. Clark, 247 V. Great Northern Rail. Co., 355 . V. Great Western Rail. Co., 125 V. Sowerhy, (Devise), 247; (Dower), 271 V. Watson, (Bankruptcy), 79; (Bond), 114 Parkin v. Thorold, (Vendor and Purchaser), 721, 727 Parkinson's Trust, 415 V. Chambers, (Practice, in Equity), 583, 601 v. Hanbury, 601 Parr v. Applebee, 673 V. Jewell, 312 Parrott v. Anderson, 267 Parsons v. Alexander, 322 V. Hardy, 580 Partridge v. Gardner, 216* Patch V. Graves, 769 Patching V. Dubbins, 227 Patent Fuel Co. i. Walstah, 355 Paterson v. Murphy, 733 V. Paterson, 268 V. Scott, 262 V. Wallace, 469 Patrick v. Andrews, 600 V. Shedden, 8 Pattenden v. Church, 299 V. Hobson, 299 Patterson v. Huddart, 248 Pattinson, in re, 459 Pattison's Trusts, in re, 743 V. Graham, 77 ■ V. Pattison, 427 Paul V. Roy, 308 Pauling V. Dover, Mayor, &c. of, 229 V. London and North-Western Rail. Co., 161 Pawsey v. Barnes, (Limitations), 447; (Practice, in Equity), 676 Pawson V. Pawson, 437 Paxton V. Newton, 677 Payne v. Little, 223; (Practice, in Equity), 586, 600, 601 Paynter v. Carew, (Practice, in Equity), 575, 598 Peace v. Hains, 235 Peachey v. Rowland, (Master and Servant), 468; (Nuisance), 500 Peacock v. Stockford, 416 Peake v. Ledger, 508 Pearce v. Gardner, 264 v. Watkins, 486 V. Wycomhe Rail. Co., 625 Peard v. Kekewich, 554 Peardon v. Underhill, 145 Pearse, in re, 76 Pears v. Wilson, (Inferior Court), 340; (Legacy), 438 Pearson's Executors' case, 180 ■ V. Beck, 692 V. Rutter, 260 • V. Wilcox, 586 Peatfield v. Benn, 704 Pedder's Settlement, 202 Peel v.- Thomas, 473 Peers v. Ceeley, 484 V. Needham, 512 • V. Sueyd, Landlord and Ten- ant), 388 ; (Principal and Agent), 61 1; (Vendorand Purchaser), 731 Pegg V. Wisden, (Vendor and Pur- chaser), 723, 726 Pellv. Daubney, 762 Pelly V. Wathen, 59 Pemberton, ex parte, 56 Penfold, ex parte, 72 Penhall v. Elwin, 734 Pennant and Craigwen Consoli- dated Lead Mining Co., in re, (Company), 183, 185 Pennell v. Alexander, 720 ■ v. Duffell, 705 V. Home, 77 — — V. Roy, 351 ■ V. Smith, 25 Penny v. Goode, 615 V. Penny, 576 V. Pickwick, 173 Pepper V. Chambers, 616 Peppercorn v. Wayman, 263 Percival v. Caney, (Limitations), 453; (Practice,in Equity), 580 V. Nanson, 285 Perkins v. Ede, (Vendor and Pur- chaser), 726, 731 Perks's Estate, 399 Perren \. Monmouthshire Rail, and Canal Co., 527 Perry v. Turpin, 572 V. Walker, 481 Peters v. Beer, 587 Peterson v. Ay re, 34 Peto V. Reynolds, 99 Petre v. Duncombe, 366 V. Petre, (Legacy), 431 ; (Li- mitations), 448 Petty V. Petty, 698 Phelps V. Prew, 615 V. Prothero, (Pleading, at Law), 534; (Principal and Agent), 607 V. St. John, 645 Phillipps, ex parte, 174 Phillips, ex parte, (Bankruptcy), 80; (Insolvent), 357; (Jus- tice of the Peace), 373; (Lands Clauses Act), 394 , in re, 1 76 v. Barker, 756 V. Higgins, (Arbitration), 32, 33 v. Phillips, (Baron and Feme), 90; (Conversion), 201; (Pleading, in Equity), 535 v. Pound, 38 V. Turner, (Legacy), 417, 432 Phillpottsv.Phillpotts, (Deed), 239; (Estoppel), 280 Philpotts, in re, 57 Philps V. Evans, 415 Phipps V. Daubney, 52 Picard v. Mitchell, 261 Piekanee's Trust, in re, 586 Pickering, in re, 70 Pickford v. Brown, 592 Pidcock V. Boultbee, 600 Piddocke v. Smith, (Lunatic), 459; (Practice, in Equity), 594 Pidduck V. Boultbee, 600 Pierce v. Williams, 324 Pigott, in re, 459 PiUan V. Thompson, 587 Pimm V. Insall, 586 Pinchin v. London and Blackwall Rail. Co., 391 TABLE OF CASES. 785 Pindar v. Barr, 143 Pinfold V. Pinfold, 576 Pinhorn v. Souster, (Distress), 266 ; (Landlord and Tenant), 382; (Mortgage), 480; (Practice, at Law), 565 Pinnington v. Galland, 738 Pitt V. Pitt, 601 Place, in re, 618 V. Potts, 21; (Evidence), 283 ; (Pleading, at Law), 531; (Shipping), 670, 671, 672 Plasterers Co. v. Parish Clerks Co., 444 Piatt V. Bromage, 476 V. Elce, 524 Play fair v. Cooper, (Legacy), 436; (Tenant for Life), 689 Plenty v. West, (Trust and Trus- tee), 714; (Will), 742 Plestow V. Johnson, 223 Plowden v. Campbell, 215 V. Hyde, 757 Plummer v. Hedge, 565 Plyer's Trust, in re, 713 Plymouth Great Western Dock Co. V. Inland Revenue, Commission- ers of^, 685 Pocock V. Pickering, (Practice, at Law), 570; (Voluntary Convey- ance), 734 Poirier v. Morris, (Bills and Notes), 107; (Principal and Agent), 607 Pollard V. Clayton, 680 V. Ogden, 63 Pollock V. Lester, 351 Pomfret v. Perring, 556 Poole V. Bott, 744 Pooley V. Budd, 699 Pope V. Fleming, 566 V. Pope, 741 V. Whitcombe, 236 Popham V. Jones, 27 Popple V. Henson, 221 Porch V. Cresswell, 564 Porritt V. Baker, 321 Port of London Shipowners' Loan and Assurance Co., ex parte, 178 , in re, 183 Porter v. Watts, 704 Potts V. Levy, 350 V. Warwick and Birmingham Canal Navigation Co., 153 Potter V. Baker, 435 V. Inland Revenue, Commis- sioners of, 685 V. Richards, 430 Powdrell v. Jones, (Administration), 16; (Copyhold), 202; (Partners), 515 Powell's Trust, 25 v. Hoyland, 697 . V. Marett, 435 v. Merrett, 435 Power V. Jones, 214 Powers V. Fowler, 316 Powles V. Hargreaves, 106 DiOEST/ 1850—1855. Pownall v. Dawson, 503 v. Hood, (Parliament), 503, 505 Powys V. Blagrave, 733 Prance v. Sympson, 451 Pratt V. Walker, 582 Preece and Evans's case, 186 Prentice v. Prentice, 591 Prescottv.Hadow, (Company), 174, 189 Preston v. Liverpool, Manchester and Newcastle-upon-Ty n e Junction Rail. Co., (Rail- way), 624; (Specific Per- formance), 676 T. CoUett, (Mortgage), 477 ; (Practice, in Equity), 575 Prew v. Squire, (Costs, at Law), 211; (Writ of Inquiry), 356 Price v. Barker, 611 v. Berrington, (Fraud), 312 ; (Lunatic), 454 V. Griffith, 678 V. Hewitt, 333 V. Lovett, 40 V. Macaulay, 723 V. Moulton, 110 V. Price, 732 V. Thomas, 569 Prichard, ex parte, (Company), 176, 191 V. London and Birmingham Extension, Northampton, &c. Rail. Co., 175 Pridie v. Field, 437 Prince v. Cooper, (Practice, in Equity), 590; (Tenant for Life), 689 V. Howard, 591 Prince of Wales, Attorney General of, V. Bristol Waterworks, S^t Pritchard's case, 177 Trusts, 413 V. Bagshawe, (Evidence), 291j (Limitations), 453 V. Norris, 594 ^ Proctor V. Brotherton, 569 V. Cooper, 372 V. Hodgson, 739 Prole V. Masterman, 171 Propert's Purchase, in re, 712 V. Tregear, 374 Prudential Mutual Investment and Loan Association v. Curzohj (Stamp), 684, 686 Pryce v. Bury, 478 Pugh, ex parte, 91 , . , in re, (Baron and Feme), 93 ; (Lunatic), 455 Pulsford V. Richards, 152 Purchas y. Holy Sepulchre, Cam- bridge, 633 . Pyecroft v. Pyecroft, 355 Pym, ex parte, 401 Pyrke v. Waddingham, 681 Guane v. Quane, 97 Guartermaine v. Bittlestone, 75 Queen Dowager's Annuity, 25, 20 Quennell v. Turner, 741 Quested v. Micliell, 748 Quilter, ex parte, (Attorney and So- licitor), 56 ; (Company), 175 Rabbeth v. Squire, (Devise), 258 ; (Practice, in Equity), 579; (Will), 747 Baby v. Ridehalgh, 709 Race V. Ward, (Custom), 230; (Easement), 272 Rackham v. Cooper, 577 Rackmaboze v. Mottichund, 449 Radcliffe v. Salmon, 872 Ralli y. Denistoun, 104 Ramsden y. Smith, 653 Ramshay,ex parte, (Inferior Court), 336 ; (Quo Warranto), 620 Randall'sWill, inre, 713 v. Hall, 724 V. Moon, 103 y. Stevens, 446 Ranger v. Great Western Rail. Co., (Company), 153, 200 Rannie v. Chandler, 17 Ransom, re, 54 Raphael v. Boehm, 433 Rashleigh v. South-Eastern Rail. Co. 225 Rastrick v. Derbyshire, Staffprd- shire and Worcestershire June. Rail. Co., 191 RatclifTe v. Winch, 302* Ratt y. Parkinson, 379 Rawlings y. Dalglei^h, 578 Rawlins v. M^Malion, 597 Rawlinson v. Medwin, 368 V. Wass, 249 Bayner v. Allhusen, 616 Bead v. Coker, (Action), 14 ; (Arti- cles of the Peace), 40 V. Fairbanks, (Damages), 231; (Deed), 242 v. Legard, 88 , -y. Prest, 508 v. Strangways, 431 Reade v. Lambe, 317 Records and Writs, Clerk of, in re, 586 Reddish v. Pinnoct, 189 Reece v. Taylor, 371 Reed v, Gardner, 213 V. Ingham, 737 V. Lambe, 317 V. Prest, 587 V. Shrubsole, (Costs, at Law), 211; (Writ of Inquiry), 356 Reedie v. London and North- West- ern Rail. Co. 159 Rees's Devisees, in re, 713 V. Watts, 302 , — V. Williams, 127 Reeve v. Hodson, (Practice, in Equity), 579, 593, 605 Reeves v. Baker, (Pleading, in Equity), 538 ; (Practice, in Equity), 573; (Will), 746 6H 786 TABLE OF CASES. Reeves v. "White, 320 Regina V. Abney, 117 V. Alford, 279 V. Alleyne, 279 V. Ambergate, Nottingham and Boston, &c, Rail. Co., (Company), 155 j (Estop- pel), 281 T. Ambergate Rail. Co., 462 V. Amos, 39 V. Anon., 223 V. Archer, 306 • T. Arnold, 456 v. Ashton, (Ale and Beer- houses), 20 ; (Gaming), 322 V. Avery, 495 — V. Balby and Worksop Turn- pike Road, Trustees of, (Executor), 296; (Devise), 461 V. Baldry, 292 T. Bannatyne, 321 • V. Barnes, (False Represen- tation), 305 ; (Larceny), 404 V. Bartholemy, 127 V. Beaumont, 278 V. Bedford, County of, (Evi- dence), 289; (Highway), 328 V. Bedwell, (Master and Ser- vant), 470; (Sessions), 646 V. Beeston, 292 V. Bengeworth, Inhabitants of, 545: V. Bennett, (Perjury), 528 ; (Poor), 546 V. Bessell, 207 V. Bilston, Chapel wardens of, 637 V. Binney, (Certiorari), 128; (Sessions), 646 V. Birara, 393 V. Bird, (Murder),498 ; (Plead- ing, in Criminal Cases), 539 V. Birkenhead Docks, 628 V. Birmingham and Oxford June. Rail. Co., 462 • V. Blackburn, 606 — — v. Blakeman, 375 V. Blakemore, (Arbitration), 29; (Highway), 328 . V. Boulter, 529 . V. Bradford, Mayor,' &c. of, ■^494 V. Brandt, 632 . . V. Brighthelmstone, Parish of, 547 V. Bristol, Recorder of, 646 v^ Brooks, 641 .- V. Buckingham, Justices of, _ 457 T. Buckinghamshire, Justices of, 549 ■ V. Buckiiell, Inhabitants of, (Poor), 548, 549 Regina v. Bucks, Justices of, 20 v. Burgate, Inhabitants of, 545 V. Burton, 404 V. Caldecote, 547 ■ V. Caledonian Rail. Co., 154 V. Carew, 549 V. Carlisle, 194 V. Carttar, 44 V. Caudwell, 605 V. Chandler, 502 v.Charlesworth,(Ale and Beer- bouse), 1 9 ; (Justice of the Peace), 378 V. Cheafor, 404 V. Clarke, (Evidence), 292 ; (Rape), 626 V. Claxby, Inhabitants of, 327 V. Clements, 292 — — ■ V. Coaks, 494 V. Cockburn, 646 V. Cohen, 403 V. Collins, 378 V. Cook, 528 V. Cooper, (Larceny), 404 ; (Poor Rate), 630 V. Corbett, 203 V. Cornish, 404 V. Cottle, 715 V. Coward, 494 V. Craddock, 641 V. Cutler, 522 V. Dadson, 674 V, Dale, (Ale and Beerhouse), 20 ; (Scire Facias), 645 V. Davis, (Bastardy), 97 ;-(In- dictment), 332 • V. Dawson, (Forgery), 310 ; (Voluntary Conveyance), 734 V. Dendy, (Copyhold), 204;* (Mandamus), 463 V. Denton, Inhabitants of, 327 V. Deny, 377 V. Derby, Recorder of, 549 V. Derbyshire, Justices of, (Lunatic), 457; (Sessions), 646 V. Derbyshire, &c. Rail. Co., (Amendment), 24; Com- pany), 191 V. Deverell, 378 V. Dock Co. Kingston-upon- Hull, 635 — V. Dolan, 641 -— — ■ V. Dovey, 641 V. Dowling, 358 V. Drake, 127 V. Drury, 292 V. Dulwich, Master, &c, of College in, 144 V. Dunboyne, 529 V. Durham, Justices of, 378 V. Eagleton, 305 V. Eardislaud, Inhabitants of, 328 V. Earnshaw, 620 Regina T. East Anglian Rail. Co., 464 V. East and West India Docks and Birmingham Juuc. Rail. Co., 621 V. East London Waterworks Co., (Lighting Rate), 639, 640 V. East Stonehouse, Inhabit- ants of, 546* V. Eastern Archipelago Co., 522 V. Edwards, 303 V. Ellis, 303 V. Elsey, 456 V. Epsom, Inhabitants of,(Ap- prentice), 28; (Poor), 546 V. Evans, 319 V. Everett, 339 V. Featherstone, (Crown Cases Reserved),229; (Larceny), 404 V, Ferguson, 331 V. Ferrall, 97 V. Ford, 292 V. Foster, (Coin), 144 ; (Jury), 375 V. Foulkes, 127 V. Francis, 493 ■ V. Frere, . (Company), 158 ; (Justice of the Peace), 376 V. Frost, 24 V. Garrett, 305 V. Gaskill, 631 V. Gibbs, 277 ■ V. Gill, 278 V. Goodenough, 278 V. Great Western Rail. Co., (Company), 155, 156; (Poor-rate), 635 V. Green, (Bastardy), 97 ; (False Pretences), 306; (Forgery), 310; (Justice of the Peace), 378 V. Greene, 543 V. Greenhalgh, 306 V. Greenwood, 144 ■ V. Gregory, 495 V. Griffiths, 542 V. Halifax, Township of, 546 V. Hallett, (Oath), 500 ; (Per- jury), 528 V. Hammond, 494 V. Hancock, 523 V. Harden, (Inferior Court), 336, 339; (Mandamus), 463; (Nuisance), 600 V. Harris, 278 V. Hartfield, Overseers of, 547 V. Hartington, Middle Quar- ter, Township of, (Evi- dence), 284; (Poor), 548 V. Hartlepool, Mayor of, 495 V. Harwich, Mayor, &c. of, 495 V. Harwood, (Inferior Court), 342 ; (Jury), 375 V. Haughton, 284 TABLE OF CASES. 787 Kegina t. Haughton, Inhabitants of, (Estoppel), 282; (High- way), 328 V. Hellier, 647 v. Henson, 24 V. Hewgill, 306 V. Hickling, 528 V. Hicks, 694 V. High and Low Harrogate, Commissioners of, 627 V.Hill, 760 v. Hills, (Bankruptcy), 71 i (Costs), 224 V. Hodgson, 224 T. Hogan, 502 T. Holbeck, Overseers of, 547 V. Holmes, 330 V. Hornsea, Inhabitants of, 327 -T. Huntley, (Master and Ser- vant), 467: (Poor-rate), 637 V. Husthwaite, Inhabitants of, 545 V. Hutchinson, 716 V. Hyde, (Certiorari), 127; (Game), 321 ; (Justice of the Peace), 379 ' V.Ingham, (Justice of the Peace), 378; (Building Act), 471 V. Ion, 310 V. Isaacs, 325 V. Johnson, 402 V. Kealey, 306 V. Keith, 309 V. Kelsey, (Costs,- at Law), 215 ; (Feigned Issue), 307 V. Kentmere, 628 V. Key, 374 V. Kidderminster, Mayor, &c. of, 495* V. Kingston - upon - Hull, Guardians of Poor of, 497 — — V. Kingston-upon-HuU Dock Co., 635 V. Kingswinford, Overseers of, 139, 736 V. Kitson, 39 V. Knapp, 20 V. Knaresborough, Inhabit- ants, of, 545 V. Lancashire and Yorkshire Rail. Co., (Company), 154; (Lands Clauses Act), 389 V. Lancashire, Justices of, 457 V. Land Tax Commissioners, 401 V. Langridge, 463 V. Larkin, 24 V. Latimer, 223 V. Lavey, 528 V, Lechmere, 224 V. Leeds and Bradford Rail. Co., (Justice of the Peace), 379; (Lands Clauses Act), 390 Regina v. Leeds, Recorder of, 98 Regina v. North and Sputh Shields v. Leith, 639 Ferry Co., 629 V. Lichfield, Mayor, &c. of. V. Gates, 306 497 V. Oddy,641 V. Liverpool, Manchester and V. Ossett, Inhabitants of, 546 Newcastle - upon - Tyne V. Overton, 279 Rail. Co., 150 V. Oxford, (Guardians), 541 V. Liverpool, Recorder of. V. Oxley, 528 (Mandamus), 462; (Poor), V. Pearcy, 97 549 V. Perkins, 641 V, Llanelly, Inhabitants of, V. Perry, 192 547 V. Petrie, 326 V. Llanfaethly, Inhabitants of. V. Pharmaceutical Society, (Poor), 550 ; (Witness), 689 -.- -. 761 V. Phillpott, (Parent and V, Llansaintfraid Glyn Con- Child), 502; (Perjury), way, Inhabitants of, 545 528 V. London and North-Western V. Pilkington,378 : -- — Rail. Co., (Company), 154; .^T. v.Pinder, 458 (Lands Clauses Act), 395 -r— y. Pocock, 464 V. London, Brighton and V. Poor Law Commissioners, Soutb-CoastRail, Co., 634 540 , - . . V. Longwood, Township of, 636 V. Potter, 404 . r- V. Lowe, (Libel), 443 J (Limit- — V. Povey,(Bigamy),-98;(Mar- ations), 464 . - . iriage)i 465,' V. Luckhurst, 291 V. Powell, (Laroejiy), 404 ; V. M'Gavaron, 223 ( Municipal Corporation), V. MajoE, 528 497 V. Mallinson, (Articles of the V. Poyser, 404 , , Peace), 39, 40 V. Pratt, (Game), 321 ; (Lar- V. Manchester, (Poor), 548 ceny), 403 V. Manchester, Mayor, &c. of, ^ — V. Prest, 497 :i ,," (Poor-rate), 628 - 1^^- — V. Priest Hutton, Inhabitants V. Manchester, Overseers erf, of, 456 , _ ,r- .. — (Poor-rate), 631 : ^ V. Raines, 339 V. Manchester, Township of, V. Reason, 405 (Poor-rate), 630 -- — Y. Reed, 404 ■ V. Reid, 40 V. Manktelow, 1 V. Richards, (Inferior Court), V. Manning, 402 341; (Mandamus), 462^ V. Marshall, (Inferior Court), V. Riley, (Larceny), 402 ; 337 ; (Information), 347 (Night Poaching), 499- , V. May, 494 , V. Robins, 403 - V. Mears, 194 V. Robinson, 541 V. Metropolitan Commission- V. Rochester, Dean,&c. of, 137 ers of Sewers, 655 V. Rose, 128 V. Middlesex, Justices -of. V. Rowlands, 194 (Poor), 549; (Lighting- V. Russell, 568 i > — - rate), 640 : — t^'V.'.'Rymes, 24!mii!fl ;• ^- V. Midland Rail. Co., 634 V. Sadlers Co., (Amendment), V. Mill, (Patent), 520, 522 24; (Mandamus), -463 ; V. Millard, 377 ' (Pleading, at Law),-530 V. Minster,Inhabitantsof,456 V. Saffron Hill* 288 —. — V. Mitchell, 644 V. St. Albails, Justices of, V. Moore, 292 (Certiorari), 128 ; (Turn- V. Moorhouse, 331 pike), 716i ,i. V. Morgan, 403 V. St. Andrew, Holborn, 547 V. Morrison, 636 V. St. Anne, Blackfriars,-S44 V. Much Hoole, Overseers of. V. St. George, BIbomsbury, 544 ' (Apprentice), 27, 28 ; V. Murdock, 278 — — T.M'Kean, 324 V. Stewart, 223 V. Jones, 336 Stilwell -y. Mellersh, 296 ; . tice,- in- Equity), 598 ; 757 ■ Stobart v. Todd, 587 Stocker v. Brockelbank, 512 V. Dean, 606 Stocky, ex parte, 180 '-. y. Dpbson,i70 Stockton and Darlington Rail. Co. V. Fox, 565, _ _ Stoessiger v. South-Eastern Rail. Co. 99 Stokes V. GrisseH, (Costs, a,t,L,a,w), 212; (Practice, at Law), 570 r-r- — V. Salomons, 253 ,■ . r— - V, Trumpei;, 49 Stone V. Davies, 574 y. Godfrey, 501 V. Jackson, 326 V. VanHeythuysen, 234 Stones V. Rowton, 704 Storm v,-Stirling, 99 Storrs v^ Bertbow, 41 1 , Storry v. Walsh, 726 ,, Story, ex parte, 618 V. Finnis, (Distress), 268; (Payment), 527 Strachan's Estate, in re, 219 ——T.Heard, 29 Straffon's Executors, ex parte, ^84 Strafford, re, 55 Strattop V. Pettit, 406 , , Stret'ton v. Ashmall, 709 ' Strickland v. Turner, 476, .' .Strong V. Hawkes, 477 ' Gold (Prac- (WiU), 792 TABLE OF CASES. Strong V. Moore, 578 • T. Strong,(Fraud),312i(Trast and Trustee), 701 Stroud V. Norman, 555 Stroughill V. Anstey, 263 Strutt V. Braithwaite, 551 Stuart V. Lloyd, 57* V. London and North-West- ern Rail. Co., 678 Stultz, in re, 430 Stump V. Gaby, 240 Sturgess v. Joy, 360 Sturgis, ex parte, 79 T. Curzon, 569 V. Dunn, 268 Sturt, ex parte, 84 Sudlow V. Dutch Rhenish Rail. Co., 309 Sullivan v. Beavan, 220 Summerfleld v. Prichard, 583 Sunderland, Freemen and Stallin- gers of, V. Durham, Bishop of,592 Sunderland Marine Insurance Co. V. Kearney, 506 Surcombe v. Pinniger, 314 Surtees v. Parkin, 262 Sutclifie V. Cole, 261 Sutherland v. Mills, 280 T. Sutherland, 584 V. Wills, (Error), 280 ; (Par- ties), 507 Suitors of Court of Chancery, in re, 689 Sutton, in re, 86 —^ Harbour Improvement Co. V. Hitchins, (Costs, in Equity), 219; (Lands Clauses Act), 393, 396 Swallow V. Binns, (Practice, in Equity), 604 ; (Settlement), 652 Swan V. Holmes, (Will), 750, 760 Swann v. Dakins, (Arrest), 39 ; (Habeas Corpus), 325 v. Wortley, 587 Swansea Dock Co. v. Levien, 151 Swatman v. Ambler, (Lease), 407 ; (Revenue), 643 Sweet v. Benning, (Copyright), 205, 206 Sweeting v. Darthez, 670 V. Sweeting, 441 Swift V. Grazebrook, 602 Swinborne v. Nelson, 537 Swiubourne v. Carter, 215 Swindell, in re, 458 Symes v. Magnay, 367 Symons v. May, 359 Taff Vale Rail. Co. v. Giles, 160 Taft v. Harrison, 172 Talbot, ex parte, 188 V. La Roche, 525 Tallis V. Tallis, 196 ; (Covenant), 228 ; (Practice, at Law), 564 Tambisco v. Pacifico, 215 Tancred v. Leyland, 268 Tanner, ex parte, (Company), 179; (Devise), 258 Tanner v. Christian, 609 V. Woolmer, (Guarantie), 324^ (Indemnity), 331 Taplin v. Florence, 444 Tapp V. Tanner, 219 Tarleton v. Liddell, (Devise), 239; (Fraud), 312 Tarrant v. Baker, 13 Tate v. Leithead, 271 Tatham v. Parker, 360 V. Piatt, 681 Tatlock V. Jenkins, 747 Tayler v. Tayler, 459 Taylor, ex parte, 72 in re, (Attorney and Solicitor), 54, 55 ; (Bankruptcy), 68 ; (Legacy), 440 's Settlement, in re, 201 V. Addyman, 244* V. Austen, 754 V. Best, 20 V. Bullen, 735 V. Crowland Gas and Coke Co., 212 V. Frobisher, 433 V. Gilbertson, 724 V. Hawkins, 675 ■ V. Loft, (Jury), 373 ; (Sewers), 656 V. Nesfield, (Action), 13 ; (Judgment), 369 V. Richardson, 745 V.Taylor, (Conversion), 201*; (Injunction), 350; (Will), 743 V. Warrington, 656 Tempany v. Rigby, 214 Temple v. Ecclesiastical Commis- sioners for England, 687 V. Pullen, (Bankruptcy), 70; (Bills and Notes), 101 Templeman, in re, 58 Tench v. Cheese, (Legacy), 422; (Thellusson Act), 691 Terrell, ex parte, 177 V. Hutton, 177 Terry's Will, in re, 415 Tetley v. Easton, 521 V. Taylor, 80 Tetlow V. Ashton, 740 Teulon v. Teulon, 428 Thackwell v. Gardiner, (Baron and Feme), 92 ; (Trust and Trustee), 705 Tharp, in re, 193 Tharratt v. Trevor, 210 Tharrett v. Trevor, 49 Theobald v. Railway Passengers' Assurance Co., (Damages), 230 ; (Insurance), 365 Thicknesse v. Acton, 605 Thistlethwayte's Trust, 41 1 V. Gamier, COl Thol V. Leaske, 761 Thorn V. Bigiand, (Fraud), 311; (Principal and Agent), 608 Thoma.s, in re, (Infant), 333; (Luna- tic), 459 Thomas v. Colsworth, 578 V. Cross, 527 v. Dunning, 510 V. Pinnell, 361 V. Russell, 303 V. Stephenson, 739 V. Walker, 572 V. Watkins, (Distress), 267( (Pleading, at Law), 533 Thompson, ex parte, 190 's Trusts, in re, 412 V. Beasley, 415 V. Bell, (Bankers), 63 ; (Debtor and Creditor), 234 V. Daniel, 496 V. Drew, 488 V. Falk, 616 V. Gillespy, 659 V. Harding, 301 ■ • V. Knowles, 565 V. Norris, 176 V. Nye, 675 ■ • V. Partridge, 293 V. Sheppard, 527 V. Teulon, (Legacy), 428; (Practice, in Equity), 583; (Will), 743 V. Whadey, 357 Thomson, in re, 47 — — 's Trusts, 425 Thornber v. Wilson, 492 Thome V. Smith, (Bills and Notes), K)5; (Payment), 527 Thornhill's Estate Act, in re, 594 V. Copleston, 601 V. Manning, 485 V. Thornhill, (Practice, in Equity), 594, 600 Thornthwaite, ex parte, 70 Thornton v. Court, 229 V. Ellis, 490 V. Kempson, 491 Thorp V. Owen, (Practice, in Equity), 597; (Devise), 248 V. Thorp, 700 Thoyts V. Hobbs, 357 Thurgood, in re, 58 Thurston v. Smith, 575 Tibbits V. Phillips, 514 Tibbie v. Beadon, 737 Tickner v. Smith, (Executor), 300, 302 Tidd v. Lister, (Annuity), 25; (Baron and Feme), 90; (Devise), 262 Tidman v. Ainslie, 443 Tielens v. Hooper, 225 Tierney, in re, (Affidavit), IS; (Fine and Recovery), 307, 308 v. Wood, 698 Tiffin V. Longman, 414 Tinstone's Trust, in ro, 711 Timmis V. Gibbins, (Bankers), 63; (Money lent), 475 Tindal, ex parte, 85 • , in re, 85 Tinkler's Trusts, in re, 436 TABLE OF CASES. 793 Tippins V. Coates, 110 Tiverton Market Act, in re, 258 Tobacco-pipe Makers Co. v. Loder, 233, 448 Todd, ex parte, 71 , in re, 597 V. Kellage, 466 V. Kerrich, 466 Toft V. Stephenson, 450 V. Stevenson, 728 Toller V. Attwood, 256 Tomson v. Judge, (Attorney and Solicitor), 51 j (Practice, in Equity), 574 , Tookey's Trust, in re, 255 Toplin V. Lomas, 314 Toplis V. Hurrell, 297 Topping, in re goods of, 223 V. Howard, 652 Torre v. Brown, 748 V. Torre, 655 Torrington v. Bowman, 255 Toulmiu V. Reid, 366 Tourney v. White, 503 Towne v. D'Heinrich, 717 Townes v. Mead, 449 Townley v. Bedwell, 602 Townsend, in re, 459 Tozer v. Mashford, 674 Tracey v. Lawrence, 484 Trail v. Bull, 433 Tratt, in re, 86 Travis v. Milne, (Partners), 512, 517 Treegard v. Barnes, 540 Trent v. Hunt, (Distress), 266; (Mortgage), 480 Tress V. Savage, (Landlord and Tenant), 382, 383; (Lease), 406 Trevillian v. Exeter, Mayor of, 479 Trevor v. Blucke, 689 Tribe v. Newland, 422 Trilley v. Keefe, 574 Trimmel v. Fell, 555 Trimmer v. Danby, 26 Trinity College, Cambridge, in re, 717 Triston v. Hardey, (Evidence), 294; (Insurance), 363 Trough ton v. Hunter, 517 Truscott V. Lautour, 369 Trutch V. Lamprell, 701 Tryddyn, Surveyors of Highways of, in re, 328 Trye v. Gloucester, Corporation o^ 490 V. Trye, 598 Tucker v. Hernaman, (Bankrupt- cy), 72; (Practice, in Equity), 581 Tudor V. Morris, 510 Tudway V. Jones, 361 Tuer V. Turner, (Baron and Feme), 91; CWill), 750 Tulk V. Hart, 743 Tunstall, ex parte, 714 'sWill, in re, 714 Tupper V. Tupper, 434 BiOBST, 1850—1855. TurnhuU, in re, 293 — — V. Warne, 578 Turner, ex parte, (Attorney and Solicitor), 57; (Bankrupt- cy), 72, 86 V. Berry, 212 V. Blamire, 352 V. Cameron's Coalbrook Steam Coal, and Swansea, and LaughorRail. Co., (Mort- gage), 480; (Trespass), 694 V. Collins, (Evidence), 283; (Payment), 526; (Prac- tice, at Law), 563 V. Evans, (Contract), 196; (Covenant), 228 V. Letts, 59 V. Liverpool Docks, Trustees of, 688 V. Sargent, 750 V. Turner, (Baron and Feme), 95; (Power), 554 Tumey v. Dodwell, 453 Two Sicilies, King of, v. Peninsular and OrientalSteam Packet Co., (Foreign Law), 309; (Shipping), 669 V. Willeox, (Foreign Law), 309; (Practice, in Equity), 588; (Inspection), 615 Twyman v. Knowles, 231 Tylee v. Tylee, '599 v. Webb, 48 Tyler's Trusts, in re, 712 Tynte v. Buller, 286 Tyrrell v. Clark, 432 Tyther, in re, 56 Udney v. East India Co., 568 Udny V. East India Co., 643 Underwood, ex parte, 190 V. Wing, 291 Universal Salvage Co., in re, 471 Upfill, ex parte, 185 Upfull's Trust, in re, 455 Vale of Neath and South Wales Brewery Joint-Stock Co., in re, (Company), 181, 182 Valpy V. Oakeley, (Bankruptcy), 77 ; (Damages), 231 Van Baggen v. Baines, 658 Vansittart v. Taylor, 567 Vardy, in re, 56 Varney v. Forward, 577 Varteg Ironworks Wesleyan Cha- pel, in re, 137 Vaughan v. Buck, 89 V. Vanderstegen, (Attorney and Solicitor), 59; (Baron and Feme)", 93* ; (Mortgage), 479 Vauxhall Bridge Co. v. Sawyer, 401 Vavasour, in re, 455 Versturme v. Gardiner, 651 Vick V. Sueter, 258 Vidi V. Smith, 524 Viner v. Hawkins, 359 Vines, in re, 57 Vincent v. Godson, 16 V. Sodor and Man, Bishop of, 552 v. Watts, 673 Violett, ex parte, 359 Volant V. Soyer, 288 VoUer V. Carter, 247 Von Dadelszen v. Swann, 686 Voyle V. Hughes, 733 Wace V. Mallard, 420 Wade V. Dowling, 34 V. Hopkinson, (Infant), 335; (Settlement), 651 Wadsworth v. Bentley, 533 V. Spain, Queen of, 44 Wagner Vi Imbrie, (Bankruptcy), 83 ; (Practice, at Law),' 565 Wainman v. Field, 265 Waite V. Combes, 418 Wakefield, ex parte, 84 Walbrook, St John's, Rector, &c. Of, V. Parishioners of, 138 Walcot V. Botfield, 754 Waldron v. Frances, 220 V. Sloper, 483 Waley's Trust, in re, 433 Walker, ex parte, 67 in re, (Attorney and Solicitor), 55 ; (Lands Clauses Act), 399 ^"s Estate, in re, (Conversion), 201 ; (Devise), 252 v. Bentley, 693 V. British Guarantee Associa- tion, 321 V. Broadhurst, 331 V. Drury, 90 V. Edmondson, (Bankruptcy), 64, 67, 80; (Insolvent), 360 v. Mower, 749 V. Simpson, 428 V. Tipping, (Legacy), 4385 (Will), 752 V. York and North Midland Rail. Co., 122 Wallace v. Anderson, 651 Waller v. Drakeford, (Estoppel), 281; (Principal and Agent), 607 Wallington v. Dale, (Patent), 618; 521* Wallis V. Bastard, 730 - V. Sarel, 729 Walmsley v. Jowett, 559 Walsh V. lonides, 338 V. Southwell, 640 V. Walsh, 334 Walshe v. Provan, 670 Walstab, ex parte, 183 Walter v. Selfe, 350 Walters v. Howells, 374 Waltham v. Goodier, 373 Walthew v. Crofts, 143 Warburgh V. Tucker, 71 Warburton v. Hill, 371 51 -94 TABLE OF CASES. AVarbutton v. Warbutton, 271 Ward V. Bromhead, 569 V. Burbury, 256 V. Cartwright, 579 T. Dickin, 287 V. Homfray, 293 V. Oxford, Worcester and Wol- verhampton Kail. Co., 676 V. Ward, (Easement), 273; (Trust and Trustee), 703 AVarde v. Warde, (Baron and Feme), 95; (Settlement), 655 Ware v. Cumberlege, 492 v. Egmont, 728 V. Polhill, 402 V. Regent's Canal Co., (Lands Clauses Act), 393 ; (Way), 738 Waring, in re, 89 Warkworth Dock Co., ex parte, 176 Warne, in re, 308 Warner v. Warner, 416 Warrington, ex parte, 719 V. Early, 100 Washbourne, ex parte, 68 Wason V. Wareing, 613 Wass, in re, 70 Warter v. Anderson, 704 Warwick, ex parte, 83 in re, 83 and Worcester Rail. Co., in re, 191 V. Cox, 576 V. Hawkins, 421 V. Hooper, 523 Waterfall, ex parte, 71 Waterford, Wexford, Wicklow and Dublin Rail. Co. v. Pid- coek, 151 V. Dalbiac, 152 Waterhouse v. Stansiield, (Conflict of Laws), 193; (Foreign Law), 309 Waters v. How ells, 374 V. Towers, 231 V. Wood, 756 Watkins v. Atchison, 588 V. Great Northern Rail. Co., 10 V. Williams, (Devise), 246 ; (Partition), 511 Watlington v. Waldron, 746 Watson, ex parte, 67 in re, 67 V. Alcock, 612 V. Humphrey, (Bankruptcy), 67 ; (Insolvent), 359 V. Humphries, 762 V. Knight, 236 V. Lyon, 59 V. Marshall, 90 V. Marston, 723 V. Spratley, 314 V. Ward, (Distress), 266 ; (Landlord and Tenant), 388 V. Watson, 272 V. Waud, 266 Watson V. Young, 509 Watts, in re, (Trust and Trustee), 703, 713 V. Jefferyes, 371* V. Porter, 688 V. Rees, 302 v. Salter, 167 V. Shrimpton, (Baron and Feme), 92 ; (Power), 557 V. Symes, (Mortgage), 485 ; (Practice, in Equity), 602 Waud, ex parte, 744 Waugh, in re, 55 's Trust, in re, 713 V. Middleton, 81 V. Waddell, (Attorney and Solicitor), 54, 55 V. Wyche, 706 Way V. East, 491 Wayn v. Lewis, 486 Wayne v. Hanham, 485 Weale v. Ollive, 734 Weaver v, Floyd, 466 Webb, ex parte, 71 V. Adkins, 569 V. Atkins, (Executor), 302 ; (Pleading, at Law), 530 V. Byng, 756 V. Direct London and, Ports- mouth Rail. Co., (Rail- way), 623 ; (Specific Per- formance), 678 V. Haycock, 289 V. Hewlett, 86 V. Ledsam, 703 V. WooUs, 421 Webster, Settled Estates of, in re, 400 V.Emery, (Amendment), 22 ; (Practice, at Law), 570 V. Kirk, 448 V. South-Eastern Rail. Co., .351 V. Webster, 94 Weddall v. Nixon, 725 Wedderburnv.Wedderburn, (Prac- tice, in Equity), 589, 594 Wegener v. Smith, 672 Weiss, in re, 175 Welch, in re, 332 Welland, ex parte, 44 Wellesley v. Mornington, 41 V. Wellesley, (Costs, in Equity), 222; (Trust and Trustee), 714 V. Withers, 204 Wells V. Wales, 599 V. Wells, 434 Wendron, Churchwardens, &o. of V. Stithians, Churchwardens, &o. of, 545 Wenman v. Ash, 442 Were, in re, 714 Wesson v. Alcard or Allcard, 80 West, ex parte, 69 V. Jackson, 42 V. Jones, 483 Westbrook v. Australian Royal Mail Steam Navigation Co., 569* V. Blythe, 370 Westbnry-upon-Severn Union case, 542 Westby v. Westby, 605 Westoby v. Day, 44 Weston V. Filer, 713 West London Rail. Co. v. London and North-Western Rail. Co. 165 Westwood V. Southey, 424 Wetherell, ex parte, (Attorney and Solicitor), 56, 58 Wetherill v. Garbutt, 489 Whalley, in re, 55 V. Bramwell, 493 V. Whalley, 50 Wharton, in re, 455 Wheatley v. Bastow, (Attorney and Solicitor), 48 ; (Principal and Surety), 613 V. Boyd, (Landlord and Te- nant), 388 ; (Parties), 507 Wheeler, in re, 488 — — V. Addams, 651 V. Bavidge, 531 V. Claydon, 261 Whicker v. Hume, (Charity), 130; (Costs, in Equity), 221; (Domi- cil), 270 Whieldon v. Spode, 421 Whitaker, ex parte, 85 V. Wisbey, 41 Whitbread v. Smith, 477 White V. Barker, 580 V. Barton, 596 V. Binstead, 657 V. Bluett, 42 V. Cohen, 351 V. Crisp, 666 V. Eastern Union Rail. Co., 374 V. Garden, 644 V. Grane, 655 V. Jackson, 299 V. Morris, (Action), 13; (In- ferior Court), 337 ; (Tres- pass), 695 V. Mullett, 75 V. Wilson, 555 Whitehead v. Lord, (Attorney and Solicitor), 48 ; (Death), 232 ; (Limitations), 448 V. Rennett, 264 Whitfield V. Parfitt, 673 Whitlow V. Dilworth, 91 Whitmore v. Mackeson, 47 Whittington v. Gooding, 509 Whitwick, Churchwardens of, v. Stinson, 117 Whitworth v. Rhodes, 485 Whyman v. Garth, 284 v. Gath, 284 Wickens v. Goatley, (Evidence), 283; (Insolvent), 360 Wickham v. Gattrell, 233 V. Nicholson, 486 TABLE OF CASES. 795 Gold 508; Widdicombe v. Miller, 425 Wigan V. Rowland, (Legacy), 411 ; ' (Practice, in Equity), 583 Wiggins V. Wiggins, 424 Wiglesworth t. Wiglesworth, 701 Wilbraham v. Livesey, 726 Wilde V. Slieridan, 340 V. Waters, 697 Wildes V. Davies, (Legacy), 410, 435 ; (Thellusson Act), 691 V. Morris, 657 Wiles V. Gresham, 701 V. Woodward, 242 Willies, ex parte, 80 's Cliarity, in re, 134 Wilkin V. Manning, 357 V. Reed, 22 Wilkinson, in re, 69 V. Anglo - Californian ' Mining Co., 172 T. Bewicke, 744 V. Fowkes, (Parties), (Practice, in Equity), 573 V. Hartley, 722 V. Kirby, 277 V. Shavland, 631 v. Stringer, 587 V. Wilkinson, 446 Willetts V. Green, 467 Williams, ex parte, (Company), 173; (Poor), 550 , in re, 56; (Bankruptcy), 74; (Justice of the Peace), 377; (Trust and Trustee), 712 V. Admiralty Commissioners, 561 v. Chard, 573 V. Clark, 427 V. Dormer, 269 V. Evans, 252 T. Great Western Rail. Co., 121 V. Holmes, 266* V. Lomas, 701 V. London Commercial Ex- change Co., 3 v. Powell, 299 V. Richards, 499 V. Roberts, 267 v. Smith, 450 V. Trye, 572 V. Williams, (Evidence), 293; (Legacy), 420; (Vendor and Purchaser), 723 V. Wilson, 32 Williamson, in re, 71 V. Parker, 573 V. Wootton, 681 Willins V. Smith, 450 Willis V. Childe, (Charity), 184; (Practice, in Equity), 595 Willoughby v. Horridge, 499 Wilmot V. Rose, 644 Wilson's Will, in re, 129 V.Bennett, (Devise), 251; (Trust and Trustee), 707 Wilson V. Birkenhead, Lancashire and Cheshire Junction Rail. Co., 152 V. Braddyll, (Pleading, at Law), 529; (Release), 642 V. Caledonian Rail. Co., 562 V. Dunsany, 16 V.Eden, 219; (Injunction), 25 1 *; (Practice.in Equity), 593; (Will), 745 V. Emraett, (Attorney and Solicitor), 50, 55 — — . V. Liverpool, Overseers of, 457 V. Mount, 426 V. Robertson, 672 V. Wilson, (Account stated), 6; (Power), 557; (Specific Per- formance),676; (Thellusson Act), 690; (Vendor and Purchaser), 725 Wilton V. Dunn, 480 V. Hill, (Practice, in Equity), 597, 601 Wiltshear v. Cottrell, (Deed), 241 ; (Practice, in Equity), 697 Wilts, Somerset and Weymouth Rail. Co., in re, 260 Winch V. Birkenhead, Lancashire and Cheshire Junction Rail. Co., 163 V. Williams, (Affidavit), 18; (Practice, at Law), 570 V. Winch, (Executor), 302; (Inferior Court), 340 Winchester, Bishop of, ex parte, 398 Windsor v. Cross, 597 Wingv. Harvey, (Insurance), 864; (Practice, in Equity), 584 Winship v. Hudspeth, 738 Winterbottom, re, 55 V, Tayloe, 539 Winthrop v. Elderton, 538 Wisden v. Wisden, (Devise), 249, 256, 262 Wise, ex parte, (Company), 173; (Trust and Trustee), 714 Wisewold, in re, 58 Witham v. Salvin, 573 Witte, ex parte, 334 Wolton V. Gavin, (Evidence), 290; (Mutiny), 498; (Enlistment), 675 Wolverhampton, Chester and Bir- kenhead Junction Rail. Co., in re, 180 Wolverhampton, Chester and Bir- kenhead Rail. Co., in re, 188 Wombwell v. Hanrott, 554 Wood V. Adcock, 31 V. Beetlestone, 203 V. Copper Miners Co., (Arbi- tration), 36; (Covenant), 226; (Statute), 687 V. Cox, 19 , ex parte, (Bankers), 62 ; (Bankruptcy),' 67, 86; (Com- pany), 181 Wood V. Finnis, (Administration), 15; (Sheriff), 657 V. Homfray, 589 V. Logsden, 600 V. Ordish, 262 V. Scarth, 293 V. Sutcliffe, 352 Woodburne v. Woodburne, 746 Woodcock V. Oxford and Worcester Rail. Co., 614 Woodhead v. Turner, 438 Woodhouse v. Herrick, 247 Woodman v. Robinson, (Injunc- tion), 351, 353 Woods, ex parte, (Bankruptcy), 81,83 V. Finnis, 15 V. Lyne, 367 V. Midgley, 536 V. Rowcliffe, 109 V. Surr, 510 V. Townley, 745 Woodward v. Watts, 375 Wodldridge, ex parte, 84 Woolmer, ex parte, (Company), 175, 189 Worcester Corn Exchange, in re, 187 Worley v. Worley, 750 Worsley v. South Devon Rail. Co., 393 Worth V. Mackenzie, 579 V.Newton, 113 Worthington v. Wigington, 760 Wortham, ex parte, 48 Worts V. Cubitt, 417 Wragge, ex parte, 84 Wright's Settlement, in re, 711 Trusts, re, (Assignment), 41 ; (Trust and Trustee), 711 V. Barlow, 576 V. Bigg, 608 V. C alien der, 436 V. Holdgate, 97 V. King, 335 V. Lukes, 596 V. Maidstone, 107 V. Morrey, 618 V. Vanderplank, 501 V.Vernon, (Devise), 257; (Pleading, in Equity), 536; (Practice, in Equity), 599; (Inspection), 615 V. Warren, 418 V. Wright, 430 Wryghte, ex parte, (Company), 176, 178 Wyersdale School, in re, 133 Wyke V. Rogers, 611 Wylam Steam Fuel Co. v. Street, 85 Wylde, in re, 459 's Estate, 410 Wynch's Trust, 747 V. Grant, (Executor), 301; (Trust and Trustee), 701 Wyndham v. Fane, 753 796 TABLE OF CASES. Yalden, in re, 419 Yate V. Lighthead, 591 Yates, ex parte, 705 's Trust, in re, 423 V. Dunster, (Damages), 231 ; (Landlord and Tenant), 386 V. Eastwood, 475 V. Gardiner, 6 V. Maddan, 435 V. Plumbe, 485 Yearsley v. Yearsley, 581 Yeates v. Roberts, 321 Yeatman v. Mousley, 572 Yeats V. Yeats, 437 Yelland, ex parte, 183 Yellowly v. Gower, 560 Yonge V. Furze, 26 V. Reynell, 613 York and North Midland Rail. Co. V. Hudson, (Company), 1 67; (Practice, in Equity), 602 V. Regina, 156 Yorke v. Smith, (Inferior Court), 344j (Sale), ^44 York, Newcastle and Berwick Rail- way V. Crisp, 123 Young, ex parte, 86 in re, 33 's Settlement, in re, 426 Young V. Clare Hall, Masters, &o. of, 692 V. Cooper, (Bankruptcy), 77; (Trover), 698 V. Cuthbertson, 326 V. Hodges, 509 V. Roberts, 484 V. Ward, 510 V. Waud, 66 V. White, 525 Zulueta V. Tyrie, 659 T. Vineut, (Injunction), 355; (Practice, in Equity), 574, 579*, 605; (Principal and Agent), 610 Zwilchenbart v. Henderson, 670 Printed by James HoLMts, 4, Took's Court, Chancery Lane. ■k-'^'iL''-''' ■■ r 'Ap- -?^ •-A:^ >S^H ^BflHU9iE«r_^^^^ <^^HH ■^ ^%'%*'^ ^ ^iV*' '/ ^E|l »^g||3 ^S -^k \ vl li- 3c??5 ' i^n -^