one, Basinghall-st. Com. Goulburn; Green, off. ass. ; Pain and Co. Basinghall-st. sols. Date of fiat, Jan. 24. A. Haynes and R. Barnes, wine merchants, Mincinglane, pet. crs. Meetings in the Country. MEETINGS FOR ALLOWANCE OF CERTIFICATES. paid by Brown.-Bryan, T. K. and Ward, J. M. butcher, div. MEETINGS FOR ALLOWANCE OF CERTIFICATES. BUNN, JOHN, builder, Norwich, Feb. 5, at twelve, March st. sol. OAKLEY, THOMAS, farmer and dealer in oil cake, Kingsbury-farm, St. Alban's, Hertfordshire, Feb. 13 and March 13, at eleven, Basinghali-st. Com. Evans; Johnson, off. ass.; Messrs. Baddeley, Leman-st. Goodman's-fields, sols. Date of fiat, Jan. 26. R. Fairlain, wine merchant, 396, Oxford-st. pet. cr. at eleven, Leeds. Gazette, Jan. 27. Briddick, W. B. dealer in iron, Durham, Feb. 13, at one, Newcastle. last exam.-Chaloner, J. currier and leather seller, Chester, Feb. 17, at eleven, aud. and Feb. 20, fin. div.-Findley. T. plasterer, Manchester. Feb. 10, at twelve, Manchester (adj. Jan. 20), last exam.-Gibb, W. soap manuf. Liverpool, Feb. 17. at eleven, Liverpool, aud.-Gundry, T. and J. mrchts. Goldsithney, Cornwall, Feb. 17, at eleven, Exeter, joint aud. Feb. 19, at eleven sep. auds. and Feb. 24, sep. divs.-Kelsey, J. joiner, Manchester, Feb. 10, at twelve, Manchester (adj. Jan. 20), last exam.-Liddell, T. cornfactor, farmer, and contractor, Boldon West Pastures, Durham, Feb. 16, at one, Newcastle (adj. Dec. 18), last exam. and at half-past one, aud.-Ockleston, W. hide merchant, Liverpool, Feb. 17, at twelve. Liverpool, div.--Parry, D. currier and leather dresser, Ruthin, Denbighshire, Feb. 17, at twelve, Liverpool, div.-Reynolds, J. cowkeeper, Fazakerley, Feb. 17, at eleven. Liverpool, aud.-Wright, J. calico printer, Wheelton, Feb. 9, at twelve, Manchester (adj. Jan. 12), last exam. MEETINGS FOR ALLOWANCE OF CERTIFICATES. Brooks and Brooks, curriers, Glastonbury, Feb. 26, at eleven. Bristol, as to James Brooks.-Gibson, H. G. chymist, Newcastle, Feb. 19. at half-past one, Newcastle.-Ibbotson, W. merchant, Sheffield, Feb. 24, at eleven, Leeds. Partnerships Dissolved. Gazette, Jan. 20. Insolvents Manchester, Petitioning the Courts of Bankruptes. PETITIONS TO BE HEARD AT BASINGĦALL- Arnati, W. A. clerk, Great Pulteney-street, Jan. 26, at twelve.-Arnold, W. public-house keeper, Canterbury, Jan. 24, at twelve.-Atkey, E. house carpenter. Ryde, Jan, 25, at twelve.-Benjamin. B. cab proprietor, French-alley, Gos well-st. Feb. 4, at eleven.-Bragg, J. J. beer retailer. Reading, Jan. 24, at twelve.-Briggs, J. out of business, Boswell. terrace, Lambeth-walk, Feb. 4, at eleven.—Carrell, A. jus. out of business, Rhayader, Radnorshire, Jan. 24, at tæ— Cumby, T. gas fitter, East-st. Manchester-sq. Jan. 26, at Hackney-rd. Jan. 29, at one.-Figg, W. Ordnaner derk, eleven.-Fielden, C. J. out of employment. Kilsford-place, Brighton, Feb. 4, at twelve.-Manning, T. out of business, York-st. Bryanstone-sq. Jan. 24, at half-past eleven.-Marray, A. out of business, Wigmore-st. Jan. 24, at eleven.— Newman, T. J. jun. tooth brush manufacturer, Cottageplace, Walworth, Jan. 24, at eleven.-Parry, J. chesce.LOLger, Deptford, Jan. 29, at one.-Pocock, J. grocer, Putney, Jan. 24, at two.-Rand, W. F. jun. china dealer, Kenting. ton-green, Jan. 26, at half-past eleven.-Reed, C. J. baker, Lydd, Jan. 26, at eleven.-Sandorer, W. tailor, Stockbridgest. Pimlico, Jan. 24, at eleven. COUNTRY. Affleck, W. and Frazer, E. drapers, High Wycombe, Oct. 1.-Baker, B. and Daris, J. butty miners, Kingswinford, Jan. 10. Debts paid by Baker.-Bagley, W. and J. market gardeners. Fulham, Sept. 29.-Barker, J. and Henderson, R. R. auctioneers, Stockton, Jan. 10.-Bynon, W. and Woods, W. Birmingham and Sheffield warehousemen, MitreBaragwanath, J. innkeeper, Falmouth, Feb. 3. at eleren, ct. Milk-st. Jan. 13.-Billingham, J. sen. and jun. curriers, Exeter.-Beamish, S. nurseryman, Cheltenham. Feb. 10, at St. John-st. Jan. 15. Debts paid by Billingham, sen.one, Bristol.-Brunton, H. T. ship builder, Southwick, Feb. Clarke, G. M. and Currie, A. tallow melters, Newman's-3, at twelve, Newcastle.-Dreadon, J. timber dealer, Piş. passage, Newman-st. Jan 1. Debts paid by Currie.-Clo-mouth, Jan. 29, at one, Exeter.-Edwards, J. boot maker. SANDERSON, WILLIAM WALTER, baker, 7, Great Russell-shire, Jan. 9. Debts paid by Clothier.-Daniel, R. and Solo-keeper, Motteram-in-Logendale, Feb. 3, at twelve, Masthier, J. W. C. and Impey, R. tanners, Street, Somerset- Trowbridge, Feb. 9, at eleven, Bristol.-Harrison, J. ingst. Covent-garden. Feb. 7, at half-past twelve, March 12, at two, Basinghall-st. Com. Fane; Whitmore, off. ass. ; mon, N. china manufacturers, Stoke-upon-Trent, Jan. 6. Messrs. Hilleary, Fenchurch-st. sols. Date of fiat, Jan. 16. Debts paid by Darby.-Fowler, J. and Mallinson, C. Darby, J. and Priest, J. coal masters, Rowley Regis, Jan. C. Haswell, flour factor, 19, Windsor-ter. City-rd. Melksham, Jan. 16.-Fox, W. Bailey, C. and Fox, E. merpet. cr. chants. Fenchurch-st. Jan. 12. TUBBS, THOMAS, cowkeeper and milkman, Palace-row, Gist, W. and Luscombe, J. malsters, Devonport, Jan. 12. New-rd. Feb. 7, at twelve, March 12, at half-past one, Debts paid by Gist.-Hill, T. and W. and Gilman, T. woolBasinghall-st. Com. Fane; Alsager, off. ass.; Rickards len drapers. Hanley, Dec. 25. Debts paid by W. and T. Hill. and Co. Lincoln's-inn-fields, sols. Date of fiat, Jan. 22.-Jordan, T. and Smith, J. W. stock brokers, Liverpool and J. Williamson, farmer, Northolt, pet. cr. 24. chester.-Parsons, J. mail contractor, Bristol, Feb. 9, at business, Exeter, Jan. 28, at eleven, Exeter-Woodhouse, eleven, Bristol.-Spry, T. seedsman, St. Thomas, Cornwall, Jan. 29, at one, Exeter-Thompson, W. H. jus. out of Debts paid by W. Fox.-S. B. hosier, Nottingham, Jan. 26, ai ten, Birmingham. Gazette, Jan. 23. PETITIONS TO BE HEARD AT BASINGHALL- D. green grocer, Great Saffron-hill, Feb. 4, at twelve Birkenhead, Jan. 1.-Lees, J. and Hollins, E. Manchester, June 30.-Lowe, T. and Lomar, J. colliers, Westleigh, Nov. 17. Debts paid by Lowe.-Magnus, G. and Hofman, W. Meetings at Basinghall-street. cap makers, Gravel-lane, Jan. 20.-Moore, R. and Morley. Gazette, Jan. 23. J. H. smock frock makers, Newark-upon-Trent, Jan. 16. Baldwin, B. warehouseman, Liverpool, Manchester, and Debts paid by Moore.-Mould, H. and Lock, J. timber merOld Jewry, Feb. 14, at two, aud.-Chambers and Chambers, chants, Nassington, Jan. 15. Debts paid by Lock.-Murray, PETITIONS TO BE HEARD IN THE COUNTRY. bankers, New Bond-st. and South Molton-st. Feb. 13, at E. D., Smith, A. jun. and Bogie. J. W. Liverpool, Dee. 31. Arnatt, H. A. baker, Leicester, Feb. 7, at one.-Bailey, eleven, proof of debts.-Coleman, R. and Hall, E. R. iron-Nottage, T. and W. livery stable keepers, Green Dragon-J. cloth manufacturer, Huddersfield, Feb. 3, at eleven, founders, Colchester, Essex, Feb. 17, at twelve, aud. joint card, Worship-st. Jan. 15.-Novelli, A., Watson, H. S. and Leeds. Harvey, R. carpenter, Teinsbury, Feb. 13, at and sep. div.-Lawrence, S. dealer in watches, Bedford-st. Seaton, J. F. commission merchants, London, Jan. 19.- eleven, Bristol.-Lockwood, J. smith, Bradford, Feb. 3, at Covent-garden, Feb. 17, at eleven, aud.-Littlewood, J. Petch. J. E. and Knight, J. wharfingers, Shad Thames, Jan. eleven, Leeds.-Lott, T. shoemaker, Scarbrough, Feb. 3, hosier and glover, New Bond-st. Feb. 13, at eleven, div.-16.-Pierson, T. G., Cane, W., and Coke. S. millers, Raw- at eleven, Leeds.-Mullett, S. brewer, Kinswinford, Feb. 24, Lowther, J. builder and house decorator, 8, Queen's-row, don Mills, Hertfordshire, Oct. 11. Debts paid J. M. Pierson, at eleven, Birmingham.-Murphy, F. cotton porter and Pentonville, Feb. 17, at one, div.-Mair, T. merchant, at his brewery, Hitchin.-Pinniger, J. and Westmacott, H. grocer, Liverpool, Feb. 6, at twelve, Liverpool.-Rushforth, Broad-st.-buildings, city, Feb. 13, at one, div.-Saunders, S. attorneys, John-st. Bedford-row, Jan. 1. Debts paid by J. plasterer, Carlisle, Feb. 12, at two, Newcastle.-Trainer, S. boarding-house-keeper, Golden-square, Feb. 17, at Westmacott.-Robinson, J. and Thornton, E. dyers, Saddle- F. hawker, Durham, Feb. 3, at two, Newcastle.—Weeks, W. eleven, aud.-Spencer, W. brewer, Wallingford, Feb. 5. at worth, Jan. 7.-Salmon, J. and J. D. builders, Chelmsford, out of business, Bath, Feb. 4, at eleven, Exeter. half-past one, proof of a debt.-Todhunter, B. drysalter, mel, Morley, tailors, Conduit-st. Dec. 31. Dec. 31-Sparding, H., Hummel, H. Mortimer and HumMincing-lane, Feb. 13, at two, div.-Whittington, G. T. Debts paid merchant, Great St. Helens, Feb. 13, at half-past one, div. by Richardson and Co. accountants, Warwick-st.-Turley, MEETINGS FOR ALLOWANCE OF CERTIFICATES. and Burnett, W. coal fitters, Sunderland, Jan.1.'Debts paid by W. and Cooper, J, stock brokers, Leeds, Jan. 17.-Vint. J. Ashcroft, W. sen. cooper, Bere-st. Feb. 17, at twelve.Bond, W. H. ale merchant, Bow-lane, Feb. 17, at half-past chester, Jan. 14.-Weels, W. and Claxton, J. coal merW. Burnett.-Watts, J. W. and Brown, W. T. tailors, Man eleven.-Brown, J. builder, Hornsey-road, Feb. 13, at two.-chants. Bankside, Jan. 14.-Willis, G., Pesterre, T., and Maylard, J. grocer, Fetter-lane, Feb. 17, at one.-Sawyer, Schmidt, L. drapers, St. James's-st. so far as regards ParG. tailor, Lewes, Feb. 17, at eleven-Youle, W.commission terre, Jan. 1.-Wilson, J. and Schofield, C. saw manufactuagent, Addle-st. Feb. 13, at twelve. rers, Sheffield, Dec. 27. Debts paid by Wilson. Gazette, Jan. 27. Behnes, W. marble and stone merchant, and sculptor, Osnaburgh-st. Feb. 19, at half-past eleven, aud. and div. -Howell, T. hotel keeper, Queen's Head-passage, Newgatest. Feb. 6, at half-past one, (adj. Dec. 5), last exam.-Taylor, F. wax chandler. Orange-st. Feb. 18, at eleven, aud. Gazette, Jan. 23. Jan. 20. Debts paid by Atkinson.-Bell, G. and M. drapers, From the Gazette of Friday, January 27. Bankrupts. Oakley, A. seedsman, Southampton.-Curtis. W. bulder, B Page 361 364 364 372 373 1845, a notice of motion was given by the plaintiff for the second seal in last Michaelmas Term, for leave to 362 amend the bill after the time for amending had expired. 363 That motion was supported by affidavits, stating that 363 the matter proposed to be introduced by amendment was considered to be material, and that it had been discovered by the inspection of documents in the defendant's possession. The affidavit of Mr. Peacock, 375 the clerk, stated that the documents consisted of ...... 376 21,745 papers and books, contained in eleven boxes, 378 not arranged, but "confused, irregular, and promis. 378 cuous;" that he had been called away after the 31st 378 of March to attend to other pressing business in his employer's office, and he also accounted for the in379 terval between the 18th of May and the 26th of August by stating that he had been engaged in preparing for and in the trial of two important actions at Winches381 ter and Maidstone Assizes, and that, until the long 382 vacation, he was too much engaged in other pressing 383 matters to be able to resume the inspection. The Vice-Chancellor of England thought these excuses 384 sufficient, and granted leave to amend. The Practice of Summary Convictions (continued) LAWYER-Summary.. PROMOTIONS, APPOINTMENTS, &C.... 378 379 381 384 384 385 386 387 387 Bethell and Selwyn, for the appeal motion, contended that reasonable diligence had not been used, 384 and that the affidavit of the solicitor's clerk did not 385 comply with the 68th Order of May 1845, which ....... 385 directs that, after the plaintiff has filed replication, or when the last answer is sufficient, "a special order for leave to amend the bill is not to be granted without 986 further affidavit, shewing that the matter of the proposed amendment is material, and could not, with ....... 386 reasonable diligence, have been sooner introduced 387 into such bill." This was in addition to the affidavit required by the 67th Order, namely, that the amendments had been settled and signed by counsel, and that they were not intended for delay or vexation, and that they were material. And such affidavits were required to be made by the plaintiff and his solicitor, or by the solicitor alone, in case the plaintiff, from being abroad or otherwise, is unable to join therein. Under the old practice established by the orders of 1828, it was required that the Court should be" satisfied by affidavit that the matter of the proposed amendment was material, and could not, with reasonable diligence, have been sooner introduced into the bill." They said that under the New Orders the plaintiff must define the nature of his proposed amendments, and that though here the plaintiff, being a corporation, could not join in the affidavit, yet the solici. tor, not his clerk, must make such an affidavit as will satisfy the New Orders. The present was a cross bill to an information by the Attorney-General to regulate the charity, and it is now stated the plaintiffs seek to limit and vary the statements of the bill with respect to the acts and dealings of the corporation with the charity, which were not discovered till the inspection of the documents. The amendments ought to be set out. (Attorney-General v. Fishmongers' Company, 4 My. & Cr. 1; Philips v. Goding, 1. Hare, LORD CHANCELLOR'S COURT. Jan. 16, 17, and 24. CHRIST'S HOSPITAL v. GRAINGER. Practice Due diligence-68th Order of May 1845Amendment after answer sufficient-Application to the Master-Jurisdiction-Affidavit by solicitor's clerk -Examination of documents. The Orders of May 1845 having been promulgated so long before they came into operation, the profession and the public must be deemed to have had full notice of them; and, consequently, where a step has been commenced under the old practice, it must be carried on, since the New Orders have come into operation, in conformity with those Orders. Under the New Orders, which abrogate the 13th Order of April 1828, all applications for leave to amend bills must, in the first instance, be made to the Master. Special applications for leave to amend must, under the 68th of the Orders of May 1845, positively state that the amendments are material to the questions in the cause, and that they could not, with reasonable diligence, have been made sooner, and such affidavit must be made by the plaintiff's solicitor; the affidavit of the clerk who has actually conducted the suit is not sufficient. 42.) The LORD CHANCELLOR.-Did you draw the attention of the Vice-Chancellor to the difference between the language of the two Orders-between "satisfied" and showing to the Court?" The Court, upon these affidavits, has no means of itself of knowing that the amendment is material. The affidavit states it is "considered to be material;" that is, some one considers it to be material. they had eleven boxes of papers, and many thousand documents; and set forth in the schedule to their answer accounts and documents relating to other estates as well as the charity estates; they did not distinguish what papers related to this suit, and what to other matters. The plaintiffs thought that answer insufficient, and exceptions were taken and allowed by the Master; but the defendants having excepted to the Master's report, the ViceChancellor allowed that exception on the 18th of Feb. 1845. This threw upon the plaintiff the duty of sifting the documents and extracting the material portions. Every thing done in the cause to the 28th of Oct. last was regulated by the old practice, and under the 13th Order the Master could not give leave to amend, but application must be made to the Court. (Haddelsea v. Nevile, 4 Beav. 28.) The LORD CHANCELLOR.-Of necessity, notwithstanding the general orders, the Court in extraordinary cases has power to give leave to amend. The construction contended for by the defendants would make the New Orders operate retrospectively. This proceeding is in fact under the old practice. The LORD CHANCELLOR.-The party may have been guilty of no negligence under the existing law, and the New Orders may have made him responsible for retroactive negligence. Parker. But the New Orders will not take away a right the party had before acquired under the old practice. By the 21st of the New Orders the Court has power to enlarge or abridge the time for doing any act or taking any proceeding in a cause upon such terms as the justice of the case requires, without being affected by those orders. The LORD CHANCELLOR.-The Court has the power to do so independently of the 21st Order. By the old practice the party was within time to do a certain act, and then under the New Orders he was not in time. Parker. The direction that the New Orders are to take effect in the existing suits is necessarily very ambiguous, and the Courts have thus dealt with cases like the present, where a step had been begun to be taken under the old practice a reasonable construction was given that it might be so perfected. The LORD CHANCELLOR.-But where a particular form of affidavit is required by the new Orders, there is no injustice or inconvenience in requiring that form to be adopted. If it won't work injustice, the new Orders should be adhered to. Parker.-In Phillips v. Goding (1 Hare, 40), the application was refused on other grounds, and then the Vice-Chancellor added, by way of caution, that counsel should consider whether it would not be proper to specify the nature of the proposed amend ments. (Bartolozzi v. Johnson, 2 Hare, 632.) The word "show" in the 68th new Order, means no more than was implied in the former Order, namely, show to the satisfaction of the Court. Mr. Maberley, the solicitor, says the plaintiff, had been advised to amend the bill in consequence of the information derived from documents mentioned in the schedule to the defendant's answer, and which had been inspected on the behalf of the plaintiff;" he also said that the "draft of the amendments had been settled, approved, and signed by counsel; that they were not intended for the purpose of delay or vexation, but because the same had been considered material for the case of the plaintiffs; and that the object of the amendments was to limit and vary the statements of the bill as to the acts and dealings of the corporation with respect to the charity estates." This was a motion, by way of appeal, to discharge Bethell.-Another point is, that applications of this an Order of the Vice-Chancellor of England, giving kind ought to have been made to the Master, and can the plaintiff leave to amend his bill after the time for only come before the Court in the way of an appeal. amending had expired, upon affidavits accounting for By the 3 & 4 Wm. 4, c. 94, s. 13, all special applicaThe LORD CHANCELLOR.-Can I be satisfied that the delay in the manner hereinafter mentioned, and tions for leave to amend were directed to be made in stating that the matter of the amendments had been the first instance to the Master. But by the 13th they are material unless somebody swears that they are recently discovered, and had been settled and signed Order of 1828, it directed that no such Order to amend material? Can the Court come to the conclusion that by counsel, and were not made for the purpose of delay should be made unless obtained within six weeks they are material because they seek to limit and or vexation. This was a compliance with the old after the last answer was deemed sufficient, and qualify the statements in the bill? The affidavit does practice, but not with the Orders of May 1845, which therefore any application to amend after that time not say to what extent they do so, Even if this case came into operation on the 28th of October, 1845. must have been made to the Court. No such direc-is held to be governed by the 15th Order of the The bill was filed by the Mayor and Aldermen of tion is now contained in the late Orders, and the 13th Orders of 1828, the Court must be satisfied that the London as the Governors and Trustees of Christ's Order of 1828 is annulled; so that the provision of amendments are material. I don't see why the soliHospital, against the Corporation of Reading, to en- the Act which directs all applications for leave to citor should not have made an affidavit as to all that force an alleged forfeiture of a charity estate which amend shall be made to the Master is again unre- has been stated by the clerk. He might have spoken had been devised to the Corporation of Reading in stricted. (Lloyd v. Wait, 4 Myl. & Cr. 257; Smith to his confiding in his clerk, and his clerk might have 1645 upon certain charitable trusts, with a devise Webster, 3 Myl. & Cr. 244.) The Vice-Chancel- deposed to the details of the proceedings. lor had therefore no jurisdiction to entertain the apover, in the event of their non-performance of those trusts, to Christ's Hospital. The present bill alleged those trusts had not been performed, and claimed the estate as forfeited in consequence. The bill was filed in Dec. 1842, and the answer was put in in April 1843. In Dec. 1843 the plaintiffs amended their bill, and the defendants answered the amended bill on the 20th of June, 1844. By that answer various documents relating to the charity were admitted to be in their hands, and on the 20th of February, 1845, the plaintiffs obtained an Order for inspecting those documents. The 28th of March was the first day appointed for the inspection, and on that day the plaintiff's solicitor, Mr. Maberley, and his clerk, Mr. Peacock, attended at Reading, and that day, the 29th and 31st of March were applied to the inspection. On the 12th of May Mr. Peacock resumed the inspection, and continued it for six successive days; then discontinued it until the 26th of August, when in eleven more days the inspection was completed. On the 30th of October, VOL. VI. No. 149. plication. (14 sec. 3 & 4 Wm. 4. c. 94; 1 Daniell's Freeling cited Walker v. Hurst (9 Jurist, 1002), Feltham v. Clark (ibid.), Lovell v. Blew (ibid.), Routledge v. Gibson (13 Sim. 393), Glover v. Powell (9 Jurist, 1054), Spencer v. Adam (15 L. J. 31), and Tucker v. Scudamore (9 Jurist, 1071). Blunt for the Attorney-General, supported the The LORD CHANCELLOR.-I remember Lord El-order of the Vice-Chancellor, because the Attorneylenborough, on one occasion, to have said, that it General was desirous that this cause should proceed, could not be expected that a solicitor should neglect and the title to the charity estates cleared before the all his other business to attend exclusively to one par- information for the regulation of the charity was pro Bethell, in reply, cited Winnall v. Featherstonhaugh tings after Term arr openly stated to have been applied (9 Jurist, 1002), and contended that the affidavit of the solicitor, and not that of the clerk can be regarded. to other business. The LORD CHANCELLOR.-The affidavit of Mr. The LORD Chancellor.-I don't see that the solicitor swears that he could not, with reasonable Maberley was made under the old practice, and the question is, whether it happens to be good under the new Orders. It was made with reference to the old practice after the new practice was in force. Why did not Mr. Maberley make a new affidavit on the re swered, on the 20th of June, 1844, and stated that hearing? Parker. It was considered that the question on this appeal was, whether the Vice-Chancellor's order be right as it stood. The LORD CHANCELLOR.-The application is to discharge the Vice-Chancellor's order, therefore the solicitor might have made a new affidavit, to shew, that though the order had been made on insufficient materials, it ought not to be discharged. This is a rehearing, and Mr. Maberley might have made a new affidavit under the new practice. Bethell.--The affidavit only states that the amend ments are "considered to be material." The LORD CHANCELLOR.-The question is, whether what is stated on affidavit is sufficient to satisfy the Court that the amendments are material? Does the clerk state that they are material? And, if so, whether it is the practice to receive the affidavit of the clerk; and should it appear that such a practice exists, whether it can be sustained? I am told that in the Attorney-General v. The Corporation of Plymouth, the Master of the Rolls refused to take the affidavit of the Solicitor, who had not personally attended to the business, unless confirmed by that of the clerk who had superintended it; and that that was confirmed on appeal. That is not inconsistent; the Court might have wished to know what the clerk who did the business would say on the subject. Parker replied on the new case cited. JUDGMENT. framed with a view to the old Orders, they do not The next question is, whether it was proper in the [FEB. 7. tion of the testator that it was his will, amounted to Goodeve for other parties in the same interest Walker and Collins, on the other side, contraded that there was no attestation of publication, and that the requirements of the power were not in this respect fully satisfied; that a clear distinction existed between a general and a special attestation. In the present case a special attestation was required, and that the law in this respect is, that if only part of that which is required is expressed, you cannot introduce the whole." Cases cited: Waterman v. Smith (9 Sim. 629); Ward v. Swift (1 C. & M. 171); Curtis v. Kearick (3 Mee. & W. 461); Simeon v. Simeon (4 Sim. 555); Lempriere v. Valpy (5 Sim. 108); Moody v. Reid (1 Madd. 516); Buller v. Burtt (4 Adol. & Ell. 16); Walters v. Melford (2 Curt. 221) George v. Reilly (Id. 1); Wright v. Wakeford (17 Ves. 454); Sug. on Powers. The VICE-CHANCELLOR.-The question is, whether signing before the witnesses be not a sufficient publication; or, in other words, whether it suffi. ciently appears by the attestation, not only that the will was duly signed, but that it was also published. The words of the attestation are, "We, the undersigned, attest to have seen the above testator sign the above will." It is not, therefore, a general, but a special attestation; and it appears to me that this is of itself a sufficient testification by the witnesses of their having seen the testator sign what they knew to be his will; and it is perfeetly indifferent in what manner or in what words that fact was communicated to them. It seems, however, that on the face of the attestation, they were present, and saw him sign what they believed to have been his will. My opinion, therefore, is, that they have sufficiently attestated pub. lication. Monday, Dec. 16, 1845. ABRAM V. WARD. Practice-Pleading-Amendment of ball, Under the limitation in a will those in remainder upen the decease of the prior taker, filed their bill against certain parties in possession, alleging their own legal right; that they had commenced an action of ejectment, but that the defendants intended to set up an outstanding term of 2,000 years, and praying that they might be enjoined from so doing. The defendants, in their answer, stated that they were mort. gagees of the property in question for the abone-mentioned term, and that their mortgage-debt had not been paid. The plaintiffs then amended their bill, and thereby altered it into a bill to redeem the mortgage. The defendants thereupon moved that the first bill might be dismissed with costs, and the amended bill be ordered to stand as the original bill. This motion was refused with costs. From the original bill it appears that John Abram was seised of certain property in fee-simple, and being so seised, duly made his will bearing date August 10, 1809, whereby, after charging his estates with an annuity of 101. a year for his wife, he gave all the The next question relates to the affidavit on which the motion is founded. By the new Orders it is enacted that the affidavit for that purpose shall state positively that the application for leave to amend is made with regard to matters that are material to the question at issue, and not for the purpose of vexation or delay; and, moreover, that such application for Saturday, Jan. 24.-The LORD CHANCELLOR.-leave to amend could not with all fair and reasonable Various arguments have been advanced at the bar diligence have been made at an earlier period. It is with regard to the Order in question. The first point also directed that the affidavit for that purpose shall for my consideration is, whether the motion is to be go- be made by the solicitor engaged in the cause and verned by the Orders of April 1828, or by the new Orders by the plaintiff, unless in the event of the plainissued in May 1845. The Orders of 1845 were pub- tiff being out of the country. Now the affidavit lished in May, and were to come into force and take in the case before the Court has not been made by Mr. effect on the 28th of October in the same year. There Maber ey, the solicitor, but by his managing clerk; a was, therefore, an ample notice of the Orders to the course which, under the circumstances, does not, in profession and to the public. The notice of the mo. my opinion, satisfy the requisition of the 68th of the tion to amend the bill was given a day or two before New Orders. I have read the affidavit with much atthe 28th of October, the day the Orders came into tention, and I have come to the conclusion that the operation. By the first of these Orders, it is declared facts also are not set forth in this affidavit in such a that the Orders of the 20th of April, 1828, which are manner as to justify the Court in the conclusion that there enumerated, are to be abrogated from the time the amendments which the plaintiffs desire to make when the Orders of May 1845 came into effect. are material, or that reasonable diligence has been Amongst the Orders expressly mentioned as being so used in making the application. In that respect also abrogated, are the 13th, 15th, and 16th, and other the plaintiff has not complied with the requisition of Orders relating to the practice of amending bills. It the Order. It has been argued that the managing seems, therefore, a difficult matter to contend that a clerk is generally more conversant with the details of motion to amend a bill, of which notice was given a the cause than the solicitor himself; therefore that his few days before the Orders came into effect, and which affidavit fully satisfies the exigencies of the Order. In could not come on for hearing until after they came that assertion I cannot concur. The Court, in requir into effect, is to be governed by the old Orders, which ing the affidavit of the solicitor himself, asks for a the new Orders expressly abrogate. I am, therefore, guarantee of the facts, resting on the professional of opinion, on that distinct ground, that the case is character and responsible position of the solicitor; not to be governed by the Orders of April 1828. It and unless the affidavit was made by him, I do not is said, however, by the counsel who supports the think there would be a sufficient justification for makOrder of the Vice-Chancellor, that such a construction ing the order to amend. Considering all these matwill give the new Orders a retrospective effect. My ters, I feel bound, but most reluctantly, to declare answer to that is, that the Orders in question are that the order of the Vice-Chancellor cannot be mainmerely Orders regulating the evidence upon which tained, and that the appeal must be allowed. As, permission to amend is to be given; evidence of however, the question is one of some doubt and pecufacts, too, which, if they do not exist, the Court liarity, I give no costs, except those of the application will have no justification to amend. In addition in the Court below. to that, I think that, under the construction the Court will put on the Order, as far as relates to the VICE-CHANCELLOR OF ENGLAND'S rest, residue and remainder of his real and personal present motion, if there are any circumstances to shew that, previously to the Orders being promulgated, that which was done would have been considered reasonable diligence under the old orders, the Court, in applying the new Orders to the facts, will give the parties credit for the same reasonable diligence under the new Orders. Therefore no injustice shall be done The testator died in 1817, and thereupon his son, on that point. Looking at the authorities on the Hodgson Abram, entered into possession, and conquestion, there is a distinct authority of the Vicetinued in such possession until his death, which hap Chancellor himself for a course opposite to that he C. Bartholemew by his will dated the 5th January, pened in 1841, without ever having been married; has taken in the instance now under consideration. 1828, authorised and empowered Charles Arch Bar whereupon the plaintiffs, who were the the surviving Mr. Freeling cited to the Court a number of cases on tholemew, by his last will and testament in writing, grandchildren of the testator, became entitled to the the construction of the new orders, which do not ap- or any codicil or codicils thereto, to be by him signed said premises under the will of the testator. The pear to have, in principle, a very close application to and published in the presence of and attested by two bill stated that upon the death of Hodgson Abram, the question before the Court. But in citing these or more credible witnesses, to give, bequeath, appoint, the defendants, George Ward and John Repley, and cases he passed over, inadvertently no doubt, the case or dispose of certain Bank annuities, in the said will Margaret his wife, or some person under whom they of Winnall v. Featherstonhaugh, in the 9th Jurist, mentioned. C. Bartholemew, the first testator, died claim, took possession of the said hereditaments, the which is precisely in principle the case before the in 1533. Charles Arch Bartholemew died on 11th are still in possession thereof, or in receipt of the Court; and even stronger, for the notice of motion in August, 1837, having made a will, which was signed rents and profits; that the plaintiffs commenced their that case was given in the early part of 1845 for a by him and by three witnesses, with the following action of ejectment against the defendants; that day in April of that year, on which, according to or attestation: We the undersigned attest to have the plaintiffs had discovered that some outstanding dinary circumstances, it would have come on before seen the above testator sign the above will." The term of years was subsisting, which if set up the promulgation of the new orders, but being post will had been delivered to a district reviser in Ger. defeat the said action; and that the defendants poned till after these orders came into operation, the many before six witnesses, and declared by the tes-tended to set up the same as a defence. The inVice-Chancellor held distinctly that the motion was tator himself to be admissible. There was also a prayed that the defendants might be restrained by to be governed by the new orders, and not by the paper envelope at the same time, declaring that what Junction from setting up any outstanding term as a orders of 1828. If, therefore, the case requires an was therein contained was his unbiassed will, and defence to such action, and for further relief. authority, there is a distinct one that the Vice-Chan- that letters of administration had been granted with cellor himself thought a motion coming on after the the will and codicil annexed. The Master to whom of mortgage, The defendants put in their several answers, in new orders came into operation, is to be governed the cause stood referred, by his Report, found that whereby the testator had mortgaged the premis by these new orders of 1845, and not by the the said C. A. Bartholemew had, by his said will and question for a term of 2,000 years, to securter indenorders of 1828. I considered it necessary to enter at codicil, duly signed and published in the presence of of 5001., and interest; and they set forth other term so much length into that point, because it forms the and attested by more than two witnesses, fully exer- tures and circumstances, shewing that this a sum of foundation of nearly the whole argument in support cised the power of app tent by the seal the said was vested in them, and that there was still pluie. of the Order of the Court below; and the counsel for cihed the power of appointment by the will of the said money due to them upon the mortgage. The plated the plaintiff seems to think that such a conclusion parties now presented "petition to confirm the tiffs thereupon amended their bill, wherein the statemust be come to, because he states that the affidavits Master's Report, the only arguable point being the indentures of mortgage, and struck dots of ejectment as to the commencement of the action the principal question raised is, whether, although tended that the delivery of the will, and the declara- outstanding term, and striking out also from the Bethel and Gifford, in support of the petition, con-ment, and the defendants' intention of setting up the COURT. December, 1845. A will being made under the terms of a power which are inadvertently framed with reference to the old whether the attestation of publication was sufficient. Orders. I remarked the expression at the and estate to his son, Hodgson Abram, and to the heirs of his body lawfully begotten, for ever; but in case his said son, Hodgson Abram, died without children, the testator ordered the whole of the said property to be equally divided among the said testator's surviving grandchildren, share and share alike. prayer that part which asked for an injunction, and altering the bill in other respects into a bill for redemption. Stuart and Bury, for the defendant Ward, now moved that the original bill might be dismissed with costs, and the amended bill be ordered to stand as the original bill. That many decisions go to shew that where a plaintiff files his bill for a certain purpose, and upon the coming in of the answer he finds it necessary to alter his bill in such a manner as to tell an entirely different story, he is bound for the sake of doing justice to the defendant to pay him the costs of the former bill before he will be allowed to proceed with his second bill. In the present instance the titles made out by the two bills are entirely different. In the first it is pretended that the plaintiffs have the legal title, and pray for an injunction against setting up the outstanding term; but in the second they admit the legal title to be in the defendant, but allege that they have the equitable title, and the whole prayer of the first bill is therefore abandoned. Bethell and Taylor, for the plaintiffs, were not heard. The VICE-CHANCELLOR.-The plaintiffs are pursuing the same thing, only in a different course. It comes to this, namely, certain parties entitled under a limitation in a will, claim to be entitled to an estate, to which doubtless they would be, provided the purposes of the term were satisfied. The bill, therefore, prays that the defendants may be restrained from setting up that term. The defendants, however, in their answer, say that the term is not satisfied. Whereupon the plaintiffs adopt that position, and, admitting the case of the term being unsatisfied, pray that an account may be taken of what, if any thing, remained due on the mortgage, and that, upon pay. ment thereof, the defendants might reconvey the mortgage premises. Now is not that asking the same relief, but only in a different way? There is no variation in the title; that which they ask amounts to the same; the steps, however, to be taken are not for the removal of the term, but the satisfaction of it. Now suppose the plaintiffs had stated that a term had been created, and also had said that it had been satisfied, and prayed that the defendants might be restrained from setting it up, but if it did appear that the term was not satisfied, then that relief might be granted upon that state of facts; would such an alternative prayer have been inconsistent with the case? It is not true that the amended bill is not the original, the title being the same in both, namely, that a testator being entitled to certain property, created certain limitations, and upon the failure of certain persons, the plaintiffs became entitled. The defendants, however, in their answer set up circumstances which shew that a term remains unsatisfied; the plaintiffs then vary the narrative of the case, for the sake of shewing, not that they are not entitled under the limitation so made by the testator in his will, but that they are so entitled under certain terms. Motion refused with costs. ROLLS COURT. POTTS v. DUTTON. Nov. 20, Dec. 10, and Dec. 15. Taxation-Writ of fi. fa. setting aside-Clerical error. If an Order directing the joint costs of certain persons named, in certain proceedings, to be taxed as against a solicitor, and further direct the costs of the persons (naming all but one), when" so taxed as aforesaid," to be set off against the sum due to the solicilor, and the Master reports that he has taxed the costs of all the persons, and has set off the costs of all against the sum due to the solicitor, the balance being against the latter, and a writ of fi. fa. is issued in accordance with the report, under which the sheriff levies the balance under protest of the solicitor, the writ is not irregular. The writ of fi. fa. is not irregular because the Order does not mention a sum certain. A mere clerical error in the Order will not make any difference, when it plainly appears to be such. The facts of this case, and the proceedings which resulted in the present suit, are fully stated in 5 Law T. 343. Certain persons jointly interested, petitioned for the taxation of the bill of costs of Mr. Scholefield, and by an Order of the 8th of November, 1844, the bill was referred to the Taxing Master, who made his report on the 30th of April, 1845, among other things disallowing an item of 181. 10s. and thereby taxing off more than one-sixth of the bill. On the 22nd of May, 1845, the petitioners presented a petition praying a confirmation of the report, and that Scholefield should be ordered to pay them their costs, and that they should be set off against the sum of 431. 1s. 2d, found to be due to him by the report. On the 28th of the same month, Scholefield presented a petition praying that the report should not be confirmed, and that he might have liberty to except, or that it should be referred to the Taxing Master, to review, &c. On the 26th of June Scholefield's petition was dismissed with costs, and an Order was made referring it to the Taxing Master, "to tax the petitioners, Thomas Potts, and Mary Ann his wife, Maria Farrar, Elizabeth Farrar, plaintiffs, and Edward Farrar, was John Clarke, and George Carter, and Ruth his wife, defendants, their costs of the application on which the Order of the 8th of November, 1844 was made, and of the taxation thereby directed, and also of their present petition for confirmation, and of that of Thomas Schole field opposing the confirmation;" and directing the Taxing Master "to set off the costs of the last-named petitioners, John Potts, &c." (naming them all but Edward Farrar, whose name omitted) "so taxed as aforesaid, against the sum of 437. 1s. 2d. so found due to Scholefield," and that the balance should be paid by the party against whom it should be found, with other directions. In pursuance of this Order the Taxing Master certified on the 31st of July that he had taxed the joint costs of all the six parties (mentioning them by name), amounting to 1271. 11s. at 961. 158. and that he had deducted the 437. 18. 2d. the sum due from them to Scholefield, from the joint taxed costs of the six, and there remained due to them from Scholefield the sum of 531. 13s. 10d. On the 23rd of August Scholefield was served with the Order and the Taxing Master's certificate, but on being applied to did not pay the balance due. A writ of fi. fa. therefore, under the Orders of May 1839, was issued on the 1st and executed on the 3rd of October, whereupon Scholefield paid the money to the sheriff under protest, and took a receipt, but stating generally, without saying how, that the writ was irregular. Mr. Scholefield then moved to set aside the writ for irregularity, and that the Taxing Master review his report; and that motion having stood over, it was renewed in an amended form, that both the writ be set aside and the report of the 31st of July, 1845, be discharged for irregularity. The grounds of objection were-1st, the form of the Order; 2nd, no ascertained sum being mentioned; and, 3rd, too much being set off. Turner (with him Rogers), for the motion, contended, that as the Order only directed the costs of five to be set off, and as the Master had set off the costs of all the six, and as the writ had followed the report, and therefore varied from the Order, on which, however, it is founded, it was irregular. Suppose the balance had been in favour of Scholefield, he could not have any remedy against Edward Farrar, and why should there be a remedy in the converse case? In all orders the sum is mentioned as a sum certain, therefore, that not being so here, the writ is irregular. Supposing an error in the case, strictness is requisite, and there cannot be any relief; in the case of affidavits, a difference of names makes the affidavit bad. (Huntingtower v. Sherborn, 5 Beav. 162.) Kindersley, contrà, wished to know what it was desired by the motion to relieve Mr. Scholefield from; for he had not paid a sixpence more than he was bound to pay. The omission of the name was a mere slip, a clerical error, which, if Mr. Scholefield had mentioned before the Master (as he did not, for he did not attend) or since, could have been corrected; or, if it be thought desirable, we will apply to the Court to correct the record, and the Court will give us leave. Turner, in reply. Tuesday, Jan. 20. WAKEMAN v. FARMER. Practice-Mortgagor and mortgagee-Enlarging the time for payment of principal, interest, and costs, ascertained by the Master. This was a foreclosure suit, and the defendants in the month of November, 1843, obtained an order staying the proceedings and referring it to the Master to take an account of what was due for principal, interest, and costs, and directing the amount to be paid within six months after the Master should have made his report. By his report dated the 22nd of July, 1845, the Master found that the sum of 10,9191. 3s. 5d. was due on the mortgage; the time for payment expiring on the 22nd inst., Elwin on behalf of the defendants now moved that the time might be enlarged for six months from the 22nd inst. and that it might be referred to the Master, to compute subsequent interest and costs. In support of the motion an affidavit was read, stating that the estate was worth 18,000l. and that the defendants had been using their best endeavours to raise the money, and were now in treaty for a loan for that purpose. F. Bayley, for the plaintiff, opposed the application, and relied on an affidavit denying that the mortgaged premises were worth 18,000l. and stating that the plaintiff in the expectation that the mortgage-money would be paid on the 22nd inst. had been advertising for a borrower for the money, and had been put to expense in endeavouring to place the money out on a fresh security. The VICE CHANCELLOR made an order enlarging the time for payment of the principal and future interest and costs for four months, upon the defendant's undertaking to pay the interest and costs already due, including the costs of the motion, within a fortnight. Wednesday, Jan. 21. FARQUHARSON v. CAVE. Donatio mortis causá-Gift inter vivos. Circumstances under which a gift intended for the purpose of evading the legacy duty (the donor retaining his interest in the property during his life), was held to amount neither to a gift inter vivos, nor to a donatio mortis causâ. The bill in this case was filed by the residuary legatees under the will of James Farquharson, deceased, and prayed that it might be declared that certain Dutch bonds, and the dividends which had accrued due since the testator's death, formed part of the testator's residuary estate. The circumstances of the case were as follows. About two years before the testator's death he caused a tin box to be made, and the name of the defendant, John Cave (in whose house the testator lodged), to be painted upon it, and therein placed the Dutch bonds in question, and some title-deeds relating to property which, by his will, was given for the benefit of Cave, and his wife and children. The bonds were inclosed in a wrapper, on which the testator had written as follows:-"PriFrances Cave, and three younger sisters, 18, Southgate-street, Winchester. Mem.-This parcel to be delivered as above (unopened), and with care. J. F. Mem.-These are ten Dutch 5 per cent. Bonds of Grs. 1000 each." The box was locked, and the key given to John Cave; but the testator retained the possession of the box until the 1st October, 1843, with the exception of a month during which he was away from home. From time to time the defendant, John Cave, cut off the coupons or dividend warrants for the testator, and disposed of them as he directed. On the 1st of October, 1843, the testator's nurse, by his desire, brought the box from his room and gave it to John Cave, and, as was alleged by the latter, said that the testator had desired her to give it to Cave, and to tell him that all in the box was bis, and that he did not think it worth while to keep it any longer. The testator died on the 13th of Nov. 1843. The wrapper enclosing the bonds contained also a paper addressed to Mrs. John Cave, jun. and Miss Mary F. Cave, and three younger sisters. The paper contained an account of a division of the amount of the bonds among the persons to whom it was addressed, and Mr. Thomas Cave. There was also the following note on the paper addressed to "Mr. John Cave, jun. one of executors to my last will. My Dear fellow,-I have proposed the foregoing mode of procedure solely to evade the legacy duty (10 per cent.), and recommend perfect silence on the subject. Your's to the end, James Farquharson. 15, George-street, 10th September, 1839." And on another part of the paper was written the following: "Addenda. With regard to the foregoing donations, I beg it to be distinctly understood that the four sisters have not a vested interest in their several portions (as specified in the annexed list) during my lifetime, and that in the event of either or any of them departing this life before me, the portions of them so dying to go to and be equally divided amongst the survivors or survivor; but immediately after my death each of the four sisters, or the survi The MASTER of the ROLLS.-I regret to find such a motion as this coming before the Court; a more re-vate.-To Mrs. John Cave, jun., and Miss Mary prehensible proceeding I have seldom met. The motion is to set aside a writ of fi. fa. which had issued to levy the balance due by Mr. Scholefield on the Taxing Master's report, and for an order that the Taxing Master should review his report. There is no pretence whatever to discharge the writ as long as the Master's report stands, for it follows the report, and is, therefore, quite regular. Some pretence there is for discharging the report, but, upon examination, it is not the report, but the Order, that contains the error. Next it is said that the sum for which the fi. fa. issued was not a liquidated sum; but the Order of May 1839 is, that a writ may be sued out "of the form thereinafter stated, or as near thereto as the circumstances of the case may require ;" therefore, it need not contain an ascertained sum. Those two objections are, therefore, frivolous. But, next, it is objected there is a clerical error in the Now the costs of the Order of the 26th June. petitioners were the joint costs of the six; there is no pretence of there being separate costs of any one of them; there is no distinction of the cases. The amount of their taxed costs was to be ascertained. Scholefield was entitled to 437. 1s. 2d.; and the balance was to be paid to the party in whose favour it should be. Nobody doubts what was meant by the Order. The costs of the six were to be taxed, and the Master was to ascertain the balance, after setting off the costs of the persons last named so taxed as aforesaid. It would be an extraordinary proposition to maintain that only the costs of five of the six were to be set off. It is of great importance that the Orders of this Court be drawn up with as much accuracy as possible; they are, however, as to their construction, subject to the ordinary rules of the English language. In this case, it being stated that the costs to be set off are the costs" taxed as aforesaid," the meaning is clear. I refuse the motion with costs. harson." Russell and Collins, for the plaintiff, cited Edwards v. Jones (1 Myl. & Cr. 226); Walter v. Hodge (2 Swanst. 92); Thorold v. Thorold (1 Phillimore, 1); Bunn v. Markham (2 Marshall, 532); Gaskell v. Gaskell (2 Y. & Jerv. 502); Duffield v. Elwes (1 Bligh. 530); and Hedges v. Hedges (Prec. Chan. 269). Wigram and Birkbeck, for the defendants, cited Groves v. Groves (3 Y. & Jerv. 163); Lawson v. Lawson (1 P. Wms. 441); and Gardner v. Parker (3 Madd. 184). In the same year the plaintiffs expended very large sums of money in the erection of commodious refreshment rooms for the use of the public; and shortly after granted a sub-lease of the premises at Swindon to Griffiths for the sum of 6,000l. and an annual rent of 1,100l. per annum for seven years, and covenanted to secure to Griffiths all the benefits to be derived from the covenants in the original lease. рто vors or survivor, have a vested interest in their shares, refreshment of travellers upon the railway; and with pealed against; however, if the defendants de and may dispose of the same with its accumulation (if the view of securing to the plaintiff a sufficient re- sired it, he would not refuse, but it would any) as each survivor may deem proper. J. Farqu-muneration for his outlay, the company covenanted granted on their own responsibility. It was next to that there should be no other refreshment rooms for considered whether the covenants viewed with the the use of travellers on the railway; and that all other parts of the lease were such as should be protrains carrying passengers (except those sent by ex-tected by injunction. Messrs. Rigby, the plaintifs, press or for special purposes, and trains not under the had expended large sums on the faith of these eve control of the company, and except in cases of emer- nants; could any thing but a specific performance of gency or unusual delay arising from accident) should this covenant do them justice? To leave them to stop at the station for a reasonable time, namely, ten speculative damages, to be recovered by repeated minutes at least. And the plaintiff, amongst others, actions against the company, would not be doing covenanted to supply proper and convenient refresh them justice; to do so would be encouraging exces ment for all classes of travellers during the continu-sive litigation. The right here sought to be ance of the lease. And it was provided, that in case tected must be viewed in the light of a patent, cr The VICE-CHANCELLOR.-I regret very much to the Swindon station should cease to be used as a copyright, or other analogous case, in which damages come to the conclusion in this case which I think is place of refreshment for travellers by the Great could not be satisfaction for the injury done; it wa unavoidable. The first question is, how this case Western Railway Company, then the company co- no ground for depriving the plaintiffs of their right to would have stood without the writing and the wrapper venanted to buy the premises to be etected at a valu- an injunction because there were other covenants in found in the box. If considered without the writing ation to be found by arbitration. the lease which the plaintiffs might break, to the and the wrapper found in the box, it is quite imposinjuring of the company and inconvenience of the sible to suggest any trust or title inter vivos could be public. The more correct way, perhaps, of viewing considered as having been created by any thing that the effect of mutual covenants would be, that the has taken place. The custody was the mere custody parties would be entitled to proceed at law or equity, of an agent for the principal; nor would this be varied according to the nature of the injury inflicted by the by the last direction to place them in the custody of breach; it was clear that in husbandry leases, when John Cave. Whether you take the account of this mutual covenants were entered into between the land. from the evidence of the nurse, or from that of John lord and tenant, a court of equity would aid a Cave, the evidence is obviously insufficient to create In March, 1845, the Railway Company established landlord by injunction to restrain the tenant from any title against him. The defendant's title, there- quick trains, running to Exeter in five hours, and breaking ancient pasture, which he had covenanted fore, seems of necessity to require the introduction of staying ten minutes at the Swindon station; and in not to do; and an allegation by the tenant, that the the paper and wrapper found in the box. Then the May of the same year the Railway Company esta- landlord had covenanted to find timber for repairs, first question is, whether a title inter vivos was in-blished and advertised express trains, which were and might hereafter refuse to do so, could not tended to be created. Now it is agreed on all hands not to stop at Swindon, and make the journey be set up as a ground for refusing the injunc. that the testator did not intend to part with the bene- to Exeter in four hours and a half. On the 10th tion. The Court, however, did not go the length ficial income during his life. Did he intend to con. of May the present bill was filed to restrain the of stating it would, in all cases, compel the specite stitute himself a trustee, so as to render that trust Railway Company from running their express performance of other covenants in the same lease enforceable against himself? I am of opinion that trains to Exeter without stopping at Swindon ten which might be termed mutual; but in this case the plainly he did not; whether from the instrument minutes for refreshment; the express trains began to covenant in question expressed that it was entered standing alone, or from the instrument taken in con- run on the 12th of May, and have continued to run into in consideration of the expenses incurred by the nection with the facts of the case. There is the letter ever since without stopping a sufficient time at Swin- plaintiff in building the premises, so that the deto Mr. John Cave-"My dear fellow, I have proposed don to enable the passengers to take refreshment. A fendants were already in possession of the considerathe foregoing mode of procedure solely to evade the demurrer was filed to the bill, and on the 13th of tion for this covenant. The plaintiffs had expended legacy duty (10 per cent.), and recommend perfect May a motion for an injunction and the demurrer were between 20,000l. and 30,000l. on the faith of the ful silence on the subject "-which silence, by the argued, when the demurrer was overruled and the in-filment of the covenant in question by the company, way, would not be necessary if it were a trust; junction refused, the company undertaking to keep an and they were not charged by the company with any for the legacy duty would not then have been irre. account of all trains called express trains, and also breach of the covenant they had entered info. The gularly saved. That expression would tend much to all such as should stop, and account for any loss sus- only excuse made by the company for the breach was give effect to the latter part of the paper as testa- tained in consequence of the express trains passing the public convenience and their own. The loss arising mentary. But this is not all; this paper is enclosed without stopping, provided the Court, at the hearing, thereby to the plaintiffs upon the evidence appeared in a wrapper, on which is the testator's handwriting, decided the company were bound by their covenants to to be 1,500l. per annum, and the additional inconveexpressing these words, "To Mrs. John Cave, jun. stop, and in the meantime the matters in dispute nience that the company would be put to by compel Miss Mary Frances Cave, and three younger sisters, were to be tried at law. Two actions were brought ling them to fulfil their covenant would not amount 18, Southgate-street, Winchester. Mem.-This parcel in the Exchequer; to one the defendants were directed to more than six minutes, as the loss of time arising to be delivered as above (unopened) and with care.- to demur, to have the legal effect of the covenant in from stopping and starting was at present incurred J. F." indicating an understanding that it would be the lease decided; the demurrer was overruled, thereby by their being obliged to stop for water. With regard in his own custody, or under his own control, until declaring the covenant binding upon the company. to their covenant in the lease, the Court at the hearhis death, or to be delivered by his executors un- In the other action the company pleaded, and a ver- ing would endeavour to see that perfect justice should opened-following the same idea expressed by the diet was found for the plaintiff, thereby declaring that be done to the company; in the meantime an i injunction of "silence on the subject," and the paper a breach of the covenant had been committed by the terim injunction must be granted, restraining the being marked "private." I am of opinion, thereGreat Western Railway Company, until the hearing fore, that whether you collect the testator's intention The loss sustained by the express trains not stop-of the cause on further order, from permitting the from the paper, or from the circumstances connected ping was calculated at 61. per day; the bill was after- trains or any of them to pass the Swindon station, up with it, it is impossible to arrive at the conclusion wards amended by stating that Griffiths had refused to or down, without stopping there for the refreshment that he intended to create a trust. But it is said join, notwithstanding an indemnity offered him by the of passengers, and from permitting any train not a that he created a trust by the delivery of the bonds; plaintiff. goods train, or a train to be sent by express or for I am of opinion that that delivery was not meant to special purposes, or a train not under the control of be inconsistent with what is expressed in the docuthe company, to pass the station up or down, save ia ment, nor to make any different interest or power. case of emergency or unusual delay arising from The act of delivery was merely subsidiary to the docucident, without stopping there for the refreshment of ment; I am of opinion that the testator was not a passengers, in conformity with the covenant in that trustee, nor was Mr. John Cave a trustee of this behalf contained in the lease of the 18th of December, property. I am clearly of opinion that there was not 1841. If the defendants desired it, they might have a donation inter vivos. I had some doubt, however, a case sent to a court of law, the plaintifs to under whether it might not be construed to amount to a take to keep their covenant, and leave was given to donatio mortis causâ, but for that purpose I must be apply generally. satisfied that there was a complete delivery. A mere delivery to an agent, as the agent of the testator, would amount to nothing; the delivery must be com plete, under the implied trust of returning it, if the testator should require it, or if he might recover. 1 am of opinion that the evidence fails to shew such a delivery, and that the custody of Mr. John Cave, on this occasion, cannot be considered other than the custody on other occasions. VICE-CHANCELLOR WIGRAM'S COURT. Jan. 14, 15, and 23. A Court of Equity will decree specific performance of In the year 1841 the Great Western Railway Company granted a lease of lands at Swindon (adjoining the railway) to the plaintiffs, for a term of ninety-nine years, for the purpose of erecting extensive rooms for company. Wood, Bayley, and Fitzherbert, now moved for an The VICE-CHANCELLOR.-In this case the Great For the convenience of the defendants, and in order to give them time to make arrangements to meet the order of the Court by changing their time bills, the order was directed not to be available to the plaintiffs until after the 31st of January. Common Law Courts. COURT OF QUEEN'S BENCE, Thursday, Jan. 22.* CHAWNER v. CUMMINGS. The Truck Acts-Stat. 1 & 2 Will. 4, c. 37. unvarying usage for a century in the hosiery glove manufacture of the Midland Counties has been as follows:-The master manufacturer contracts with an undertaker or middleman for the manufacture of his materials into goods with frames and other machinery belonging to the master, and kept in repai by him; the middleman then employs the framework-knitter, who works at the frame provided by the middleman on the premises of the middleman, and is paid according to the quantity of his work a certain agreed gross price per dozen, subject to the following charges, which are deducted from such gross price at each weekly settlement; first, a certain sum per week for the use of the frame; secondly, a certain sum per week for the use of the premises of the midloss of time and trouble in procuring and conveying dleman, for the standing-room for the frame, for his circumstances, but in the regular routine of daily The |