Tb. 42; 1 Prest. Abs. 331); but it will be otherwise if the tenant to the præcipe be made by deed (3 Atk. 312; 2 Ves. 403); or if the party appear by attorney; because, being non compos mentis, he is incapable of appointing an attorney (12 Rep. 124; Collinson on Idiots and Lun. 413, et seq.; see also Co. Litt. 247; 2 Blac. Com. 355; Prest. Shep. Touch. 21 n. 100). And notwithstanding the fine or recovery of a non compos will, generally speaking, be as effectual in equity as at law, still, where any fraud has been practised (Rushley v. Mansfield, Toth. 42; Wright v. Booth, Ib. 166; Coleby v. Smith, 1 Vern. 205; Addison v. Mascal, Ib. 678); or those assurances have been obtained by any undue means, though a court of equity will not absolutely set them aside, it will nevertheless relieve the injured party by treating those who have taken under those assurances in the light of trustees, and would decree them to reconvey the estate to the parties prejudiced by the fraud. (Day v. Hungat, 1 Roll. Rep. 115; see also Vern. 307; 1 Ves. 289; Clark v. Ward, Pre. Cha. 150; Co. Litt. 365, n. 17; 1 Fonbl. Eq. 53, n. k). Persons of weak intellects.-With respect to persons of weak intellects, but not actually insane, there is nothing to prevent their entering into contracts which will not be relieved against even in equity, unless some kind of fraud has been practised upon them. (Osmond v. Fitzroy, 3 P. Wms. Danish 129. 3. Infants. ........... -Deferred Dutch Two-and-a-Half per Four per Cents. Chilian 261 261 261 261 261 261 361 361 36 361 361 362 112 112 1124 1124 110 109 39 391 39 39 39 39 563 56 561 56 57 57 311 312 313 314 314 314 16 16 16 16 16 17 17 Public Sales. By Messrs. FAREBROTHER, CLARK, and LYE, at Garraways. The life interest of a gentleman, aged 43 years, in a tree years at 2807. 10s. per annum; also two policies amounting If an infant enter into a contract for the sale or purchase of an estate, he can neither enforce a specific performance, nor can it be enforced against him; for courts of equity, acting merely upon equitable principles, will not lend their aid where the remedy is not mutual; and as a specific performance could not be decreed against an infant, it shall not be enforced at his suit. (Flight v. Bolland, 4 Russ. 298; see also Howell v. George, 1 Mad. Rep. 1; Law-hold residence, No. 4, Old Burlington-street; let for 134 renson v. Butler, 1 Sch. & Lif. 13.) Yet if he contracts to buy an estate and pay a deposit, he cannot, in the absence of fraud, recover it back, because he declines to complete the purchase; although it would be otherwise if he could shew that any fraud has been practised upon him. (Capes v. Hutton, 2 Russ. 357.) Confirmation by infant after attaining his majority how far binding.-A contract of an infant may be confirmed by him after he attains his majority, and which, if once done, cannot afterwards be avoided by him; for all such acts and deeds of an infant as are merely voidable, may be ratified by him when he comes of age. (Bac. Abr. Infancy, c. 3; 1 Woodes. Vin. Lect. 400; Zouch v. Parsons, 3 Bur. 1805; Gibbs v. Merrell, 3 Taunt. 313; Goode v. Harrison, 5 B. & Ald. 159; R. v. Inhabitants of Chillingworth, 4 B. & C. 100.) Consequently, if an infant makes a lease rendering rent, and accept rent after he is of full age, he cannot afterwards avoid the lease. (Ashfield v. Ashfield, Sir W. Jones, 157; Clayton v. Ashdown, 9 Vin. Abr. 393, pl. 4.) Tuesday, March 10. don.-Fox, R. G. wine merchant, last exam. March 31.- Wednesday, March 11. Cunningham, H. bookseller, div. next week. Johnson, London.-Dixon, F. currier, div. next week. Follett, Lon don.-Nail, J. H. builder, last exam. April 11.-Shaw, J. victualler, assignees, April 21. Thursday, March 12. Aplin, J. scrivener, div. next week. Turquand, London. -Baker, R. stonemason, last exam. May 6.-Baker, H. merchant, fin. div. next week. Green, London.-Banister, C. J. draper, fin. div. next week. Green, London.-Cleary, J. builder, last exam. passed.-Hawkins, J. butcher, assig nees, April 17.-Mohon and Co. wine merchants, fin. joint div. and sep. Mohon, next week. Green, London.-Sanderson, W. W. baker, last exam. April 21.-Tubbs, T. cowkeeper, last exam. April 22.-Tuddenham, J. builder, last exam. April 15. Friday, March 13. Barnes, E. wine merchant, last exam. passed.-Chapman, T. dairyman, fur. div. next week. Groom, London.-Clark son, W. bootmaker, div. next week. Groom, London.Clayton, E. victualler, last exam. passed.-Ellis, T. bottle merchant, last exam. April 3.-Ellis, T. bootmaker, div. next week. Johnson, London.-Emanuel and Co. goldsmiths, last exam. May 15.-Gamble, H. grocer, last exam. sine die.-Hague and Co. engineers, fin. div. Hague next week. Whitmore, London.-Harris, H. hide salesman, div. next week. Alsager, London.-Maniglier, J. watchmaker, div. next week. Alsager, London.-Maynard, J. bookseller, div. next week. Johnson, London.-Neale, G. S. innkeeper, last exam. passed.-Oakley, T. farmer, last exam. May 21.— Perkins, W. upholsterer, div. next week. Bell, London.Pettigrew, R. jun. tailor, div. next week. Whitmore, London.-Quy, J. cattle dealer, div. next week. Alsager, London.-Thompson, B. innkeeper, last exam. passed.—Watson, L. smith, fin. div. next week. Bell, London.-Wilson, T. scrivener, div. next week. Alsager, London. Oficial Assignees are given, to whom apply for the Ayton, J. J. draper, second, 3d. Baker, Newcastle.-Bucklee, J. B. mercer, first, 5s. 6d. Valpy, Birmingham.-Carter, C. miller, first, 1s. 5d. Whitmore, Birming. ham. Chapman, G. cowkeeper, further, 11d. (making 3s. 11 d.). Belcher, London.-Creigh, T. R. cartwright, first and final, 6d. and 9-10ths of 1d. Baker, Newcastle.Cross, B. B. glover, further, 62d. (making 11s. 92d.). Belcher, London.-Haywood, G. bricklayer, first, ls. 3d. Belcher, London.-Last, G. general merchant, final, 14d. Whitmore, Birmingham.-Mann, J. grocer, first, 38. 9d. Whitmore, Birmingham.-Marland, J. jun. roller maker, first, 9s. Fraser, Manchester.-Noel and Noel, bootmakers, joint, 3d.; sep. of G. Noel, 7s. 10d.; sep. of W. Noel, 38. Belcher, London.-Thomson and Co. cornfactors, first joint, 25. Groom, London.-Thorn, J. paper hanger, first, 4s. 2d. Groom, London.-Thorniley, B. grocer, second, 6d. Fraser, Manchester.-Todhunter, B. drysalter, 24d. Belcher, Lon don.-Tomlin and Mann, shipowners, second joint, 22d. Whitmore, London.-Wartnaby, J. ship broker, first, 54d. Whitmore, London. Insolvents' Estates. 3. To Trustees for the benefit of Creditors. Gazette, March 13. Chambers, J. woolstapler, Framwell-gate, Durham, Feb. Trusts. G. Carter, woolstapler, Darlington, and W. Ramshaw, bank agent, Durham. Sol. Watson, Newcastleupon-Tyne.-Clayton, W. carpenter, Sutterton, Lincolnshire, Jan. 31. Trusts. C. Faulkner, carpenter, York-rd. Lambeth, and R. Naylor, feather merchant, Boston. Sol. Millington, Lincolnshire, March 5. Trusts. T. Smith and G. Edwards, merchants, Spalding. Sel. Maples, Spalding -Proctor, S. C. brewer, Sheffield, Jan. 29. Trusts. J. Jones, draper, R. Gascoigne, plumber, and J. Fowler, ironfounder, Sheffield. Sol. Fernell, Sheffield.-Swan, S. jun. stockbroker, Leeds, March 6. Trusts. A. Smith, broker, and J. Hughes, gas fitter. Sol. Bulmer, Leeds. Gazette, March 17. So where an infant, on coming of age, mortgaged IMPORTANT SALE.-A sale of property belonging his property to a lessee by deed reciting the lease to the late Dean of Lincoln took place at the City granted during his non-age, it was held to have Arms Hotel, on Tuesday last, and attracted confirmed the lease. (Story v. Johnson, Exch. the attention of the capitalists of the neighbour-Boston.-Hogg, R. wheelwright and beer retailer, Cowbit, June 26, July 5, 2 You. & Coll. 586.) And hood. The farm across the race-course, known if a person continues in possession without ob- as the Waves Farm, was not sold. Thomas Winn, jection, after his full age, of premises leased esq. was the last bidder at 3,000l. 141 shares in to him during his infancy, such continuance the Witham navigation, sold at from 941. to 981. each. 21 shares in the Lincoln Gas Company sold at from will be construed as a ratification of the lease, 461. to 481. The Birmingham and Derby Railway and render him liable even for the arrears of Debentures for 1,000l. each, fetched 1,010l. being rent which accrued during his minority. (1 Roll. 20s. per cent. premium; the Witham Debentures Abr. Enfants (K) 731; Ketsey's case, Cro. Jac. went off at a similar premium. — Lincolnshire ing-lane and Gateshead, Jan. 31. Trusts. T. Baker, gent. Cummings, G. G. glass manufacturer, America-sq. Minc 320; Kirton v. Elliott, 2 Bulstr. 69; Evelyn v. Chronicle. Lime-st, and S. E. Carlisle, tea broker, Mincing-lane. Sol. Chichester, 3 Burr. 1719; Baylis v. Dineley, 3 M. It is rumoured in the city that an attempt will be March 10. Trusts. D. Smith, gent. Wood-st. and T. Wilson. Wailes, Newcastle.-M'Millan, T. draper, St. John-st.-rd. & S. 480; Holmes v. Blogg, 8 Taunt. 35; 2 Steph. shortly made to put into operation the 7th and 8th warehouseman, Watling-st. Sols. Surr and Gribble, Lom N. P. 2962; Chitt. Cont. 153; see also, Co. Litt. Victoria against several of the railway companies bard-st.-Morgan, J. S. chemist, Liverpool, March 6. 2, 172, 308; 1 Roll. Abr. 731; Godb. 363; whose affairs continue in a disputed and litigated Trust. T. Eyre, wholesale druggist, Liverpool. Sol. Gaskell, Franklin v. Thornbury, 1 Vern. 132.) But by the position. A case on the subject, we understand, has Liverpool.-Sutton, T. sen. farmer, Hillmorton, Warwickstatute 7 Geo. 3, c. 26, s. 6, all contracts for the been submitted to counsel, whose opinion is favour-shire, March 12. Trusts. N. L. Sutton, Bilton Grounds, T. purchase of annuities with any person under 21 able; and although some little difficulty apparently Berry, Bilton, and I. Swinnerton, Hartshill, all farmers. Sol. Wratislaw, Rugby. years of age are declared to be void; and the per-derstood, can be overcome by a loop-hole in the Act. exists respecting the service of notice, that, it is unsons who shall procure or solicit the grant of any Whether the attempt will be successful or not reannuity, &c. from any minor, are made liable to mains to be seen. The question, we believe, will be punishment by fine and imprisonment. raised in the course of a few days before the Bank. ruptcy Commissioners.-Times. But notwithstanding an infant will not be compelled to perform specifically any agreement entered into by him respecting his real estate during his minority, yet there are cases in which he will be bound by the acts of others; as in the case of an infant heir or devisee, who will become bound by the acts of his ancestor or testator; as will also the infant heirs of trustees and mortgagees. (To be continued.) THE GAZETTES. AMOUNT OF DIVIDENDS DECLARED. The sum stated as the Dividend means so much declared in Bankrupts. DATE OF FIAT AND PETITIONING CREDITORS' NAMES. BROADHEAD, DAVID, and HALBRO, AUGUSTUS JOHN, one. macott and Co. Gray's-inn, and Tyer, Liverpool, sols. Feb. 28.-Sharpus, T., Cullum, W. and Sharpus, J. W. Date of fiat, March 10. Bankrupt's own petition. Meetings at Basinghall-street. corns. Gazette, March 13. HARDING, WILLIAM, cotton manufacturer, Stockport, Cheshire, March 25 and April 15, at twelve, Manchester, Pott, chinamen, Cockspur-st. March 9.-Shaw, W. and T. maoff. ass.; Coppock and Woollam, Stockport, and Coppock, chine makers, Leeds, March 5. Debts paid by W. Shaw.Cleveland-row, sols. Date of fiat, March 10. Sir R. PenShephard, T. and Pye, P. lace makers, Sneinton and Notdlebury, Heaton Norris, pet. cr. tingham, Feb. 23. Debts paid by Pye.-Shoolbred, J., Cook, HUBERT, THOMAS, lighterman and corn and coal merchant, Bond, G. victualler, Epsom, April 3, at half-past eleven, ham-court-road and Grafton-st. East, so far as regards ShepG., Shepherd, W. and Brown, H. woollen drapers, Totten1, Great-hall, Hungerford-market, and 112, High Holborn, aud.-Evans, J. cheesemonger, 234, High-st. Shoreditch, herd, Dec. 24.-Travis, J., Bancroft, J. and Whitaker, J. March 24, at eleven, April 30, at twelve, Basinghall-st. April 3, at twelve, div.-Evill, T. L. and Dowglass, T. cloth woollen printers, Rossendale, March 4.-Tyacke, T. P. and Com. Evans; Johnson, off. ass.; Tribe, Barge-yard- manufacturers, Vigo-st. April 6, at half-past twelve, div.Plomer, J. G. attorneys, Helston, Feb. 28.-Waters, S. and chambers, sol. Date of fiat, March 1. Bankrupt's own Froeschlen, D. and Price, S. tailors, 19, Dover-st. Piccadilly, Freeman, G. straw hat manufacturers, Luton, July 29. petition. April 7, at twelve, div.-Gamble, H. grocer, Grimstone, Debts paid by Freeman-Williams, E. and E. schoolmisSCHOLEFIELD, JOSEPH, cutler and dressing-case manufac- April 2, at eleven, aud.-Glass, F. woollen factor, Basing- tresses, Newport, March 2.-Young, J. and Weston, H. turer, 124, Cheapside, March 24, at eleven, April 24, at hall-st. April 4, at twelve, aud.-Hulse, R. chemist, Lower linen drapers, Albion-place, King's-cross, March 9.-Young, twelve, Basinghall-st. Com. Fonblanque; Belcher, off. ass.; Tower-st. April 3, at three, aud.-Leman, E. Church-row, G. and Peppercorns, N. blacking manufacturers, Cousin Reed and Langford, Friday-st. sols. Date of fiat, March Newington, and Bryan, T. K. Old Swan-pier, Upper Thames- lane, Upper Thames-st. March 7. Debts paid by Pepper11. Bankrupt's own petition. st. wharfingers, Old Swan-pier, Upper Thames-st. April 7, SHIPTON, AARON, and JENKINS, JOSEPH WISE, clothiers, at eleven, joint div. and sep. Bryan.-M'Entire, R. comSmall's-mill, Painswick, Gloucestershire, March 30 and mission agent, Paternoster-row and Barnsbury-sq. April 7, Ansell, H. L. and Cuipers, P. lithographers, RathboneApril 27, at eleven, Bristol, Com. Stevenson; Hutton, off. at one, div.-Marshall, B. tallow melter, High Holborn, pl. March 12.-Appleton, A., Downie, W. and Malcolm, J. ass.; Paris, Stroud, sol. Date of fiat, March 9. Bank- April 3, at one, div.-Metford, J. jun. ironmonger, South-wholesale tea dealers, Catherine-ct. Trinity-sq. Jan. 31,hampton, April 3, at eleven, aud.-Ward, W. auctioneer, Baker, G. and Hart, G. E. grocers, Littlehampton, March9. rupt's own petition. SUTTON, THOMAS, jun. draper, Atherstone, Warwickshire, Manchester, April 6, at half-past one, aud. -Bastick, T. and Driver, J. S. scale makers, Holywell-row, March 24 and April 28, at twelve, Birmingham, Com. MEETINGS FOR ALLOWANCE OF CERTIFICATES. Shoreditch, Dec. 25.-Blackburn, J., Teall, W. and Ives, T. Balguy; Valpy, off. ass.; Wratislaw, Rugby, and Tarleton Cleary, J. builder, Church-rd. April 3, at half-past eleven. dyers, Wakefield, March 11. Debts paid by Teall.-Blodget, and Newton, Birmingham, sols. Date of fiat, March 3. T. -Ward, W. auctioneer, Manchester, April 6, at half-past S. C. and Hills, G. T. ship chandlers, Liverpool, March 10. Sutton, sen. farmer, Hillnorton, Warwickshire, pet. cr. Debts paid by Hills.-Bromfield, T. and Overton, J. tobacco WEST, JOSEPH ELLIS, and TENNANT, HENRY, stock and Gazette, March 17. manufacturers, Liverpool, March 9.-Brunton, W. and share brokers, Leeds, March 24 and April 13, at eleven, Gibson, C. Cheesemonger and grocer, South-st. Grosvenor- Whitehead, S. joiners, Bradford, March 11-Clarke, T. and Leeds, Com. Burge; Kynaston, off. ass.; Walker, Fur-square, April 7, at eleven, aud. Page, S. general provision brokers, Jeffrey's-sq. March 9.— nival's-inn, and Blackburn, Leeds, sols. Date of fiat, March Cyples, R. and Hughes, J. china manufacturers, Stoke-upon11. Bankrupt's own petition. Trent, March 7. Debts paid by Cyples.-Dawson, W. and Holt, J. reed makers, Bolton-le-Moors, March 9. Debts paid Gazette, March 17. AUSTEN, JOSIAH, draper, Devonport, March 27 and April by Dawson.-Evans, R. and Dods, G. brewers, Pontardawe 21, at eleven, Plymouth, Com. Bere; Hernaman, off. and Ynisderw, near Neath, or elsewhere, March 10.-Ferass.; Soles and Turner. Aldermanbury, and Little, Devon. gusson, W. F., Oswald, G., Seal, H. and Oliver, G. Manport, sols. Date of fiat, March 7. R. Lewellen, C. Truchester and Glasgow, Jan. 9.-Garlick, J. and Hall, J. man, and W. Hitchcock, warehousemen, Wood-st. pet. crs. plumbers, Leeds, March 11.-Holdsworth, S. and W. corn Andrews, H. J. apothecary and surgeon, Courtnay-st. millers, Driglington, Nov. 28. BLACKMAN. THOMAS, house and land agent, Biddenden, Debts paid by W. HoldsKent, March 24, at twelve, April 28, at eleven, Basinghall. Plymouth, April 8, at one, Exeter, to aud. and April 9, at worth.-Hughes, T. and Graham, J. linen drapers, Oxfordst. Com. Fane; Whitmore, off. ass.; Piercy and Hawkes, April 6, at twelve, Manchester, first div.-Fay, W. inn- Schletter, M. C. brass bedstead manufacturers, Birmingham, one, div.-Collins, J. common brewer, Salford, Lancashire, st. March 12. Debts paid by Hughes.-Hulse, W. and Three Crown-court, sols. Date of fiat, March 11. Bank-keeper, Bath, April 6, at half-past twelve, Bristol, aud.- March 7. Debts paid by Phipson.-Jessop, G. B. and Briggs, BROWN, THOMAS DUNLOP, commission merchant and Gray, J. upholsterer, Manchester, April 6, at twelve, Man-J. blacksmiths, Halifax, March 3.-Kreckeler, J. C. F., A. chester, aud.-Holman, J. victualler, Exeter, April 8, at one, forwarding agent, Liverpool, March 27 and April 24, at Exeter, aud.-Nightingale, J. innkeeper, Rusholme, Man- gards A. G. Kreckeler, March 7. Debts by the remaining G. and R. A. saddlers, London-st. Greenwich, so far as reeleven, Liverpool, Com. Phillips; Morgan, off. ass.; Vin-chester, April 7, at twelve, Manchester, final div.-Samford, partners.-Lowton, T. and Walker, R. card makers, Rochcent and Co. Temple, and Jones, Liverpool, sols. Date F. draper, Manchester, April 6, at twelve, Manchester, aud. dale, March 9. Debts paid by Walker.-Lewis, J., Hare, G., of fiat, March 9. Bankrupt's own petition. BURMAN, WILLIAM EDWARD, hat and shoe dealer, 120, Lincolnshire, April 4, at twelve, Birmingham, div.-Tom- bert Colliery Company, so far as regards Humpidge, March -South, S. maltster and coal dealer, Spittlegate, Grantham, Hampidge, J. and Dancocks, H. H. coal miners, Prince AlHigh-st. Whitechapel, March 26, at twelve, April 27, atkinson, W. wine merchant, Stoke-upon-Trent, April 3, at 2.-Mauhood, G. and Hider, W. victuallers, Brown-st. eleven, Basinghall-st. Com. Shepherd; Turquand, off. eleven, Birmingham, aud. ass.; Ambrose, Chancery-lane, sol. Date of fiat, March Edgware-rd. March 11.-Parkinson, W. and Lord, J. cotton 12. J. Furnival, builder, Osborne-st. pet. cr. MEETINGS FOR ALLOWANCE OF CERTIFICATES. brokers, Liverpool and Manchester, Dec. 31. Debts paid by COOPER, THOMAS, umbrella manufacturer, 22, New Bond- Brown, J. joiner, Liverpool, April 6, at eleven, Liverpool. watch makers, Red Lion-st. so far as regards A. Scott, March Parkinson.-Scott, A., Wing, W. and Scott, C. clock and street, April 1, at one, April 28, at half-past two, Basing--Nash, T. jun. builder, Stourbridge, April 4, at twelve, 12.-Smith, R. and Greenhalgh, T. calico printers, Rosehall-st. Com. Holroyd; Edwards, off. ass.; Pullen, Ba- Birmingham.-Sykes, J. hosier, Doncaster, April 9, at eleven, bank, near Ramsbottom, March 11. Debts paid by Greensinghall-st. sol. Date of fiat, March 13. E. Dollman, Leeds. gent. Lewisham, pet. cr. halgh.-White, T. sen. and jun. and E. tanners, Moretonhamstead, Jan. 5. rupt's own petition. MEETINGS FOR ALLOWANCE OF CERTIFICATES. Meetings in the Country. Gazette, March 13. Gazette, March 17. DAY, FREDERICK, money scrivener, Hemel Hempstead, Armstrong, R. shipwright, Newcastle-upon-Tyne, April 7, ter, pet. cr. HABGOOD, WILLIAM, merchant, Manchester, March 30 and April 21, at twelve, Manchester; Fraser, off. ass.; Williamson and Hill, Verulam-buildings, and Myers and Birkbeck, Manchester, sols. Date of fiat, March 13. P. Butterly, gent. Manchester, pet. cr. LANGFORD, GEORGE, grocer and brewer, Saint Mary-st. Southampton, March 27 and April 28, at twelve, Basinghall-st. Com. Fonblanque; Belcher, off. ass.; Fitch, New Bridge-st. sol. Date of fiat, March 9. J. C. Conway and T. Brown, grocers, White Horse-yard, Friday-st. pet, crs. LITTLER, SAMUEL, draper, Liverpool, March 27 and April MEETINGS FOR ALLOWANCE OF CERTIFICATES. Partnerships Dissolved. Gazette, March 10. Insolvents Petitioning the Courts of Bankruptcy. PETITIONS TO BE HEARD AT BASINGĦALL- Bolton, W. general dealer, King-st. Hammersmith, March 18, at twelve.-Dando, J. tailor, Church-row, Fenchurch-st. March 18, at twelve.-Gimber, H. professor of music, Edenplace, March 20, at eleven.-Hunn, E. lodging-house keeper, Waterloo-place, Commercial-rd. Limehouse, March 18, at eleven. Missenden, D. farmer, Newton Longville, March 18, at twelve.-Reece, W. beer-shop keeper, Edmonton, March 19, at twelve.-Roper, W. jun. paper hanging manufacturer, Parsons-st. East Smithfield, March 20, at eleven. White, L. out of employ, Rawstone, March 20, at eleven. PETITIONS TO BE HEARD IN THE COUNTRY. Elias, John, carpenter, Gloucester, March 26, at eleven, Bristol.-Gardner, T. stone mason, Cheltenham, March 23, March 17, at twelve, Manchester.-Parker, C. dyer, March 23, at twelve, Bristol.-Haworth, J. plumber, Bolton-le-Moors, at half-past twelve, Bristol.-Player, J. B. out of business, Bath, March 23, at eleven, Bristol. Gazette, March 13. at Campbell, P. F. A. out of business, Gravesend, March 16, two.-Collins, W. B. out of business, White Lion-st. Pentoville, March 18, at eleven.-Easton, J. publican, Sodentist, Gloster-st. Park-st. Camden-town, March 18, at mersham, March 26, at eleven.-Parkinson, W. T. surgeon eleven.-Shickle, R. out of business, Lakenham, Norfolk, March 26, at eleven.-Sweeny, C. S. M.D. North-st. Westminster, March 25, at eleven.-Truebridge, J. carpenter, Charles-st. Westminster, March 12, at half-past elevenWilliams, C. French polisher, Clarke's-place, Broad-st. St. Giles's, March 26, at eleven. PETITIONS TO BE HEARD IN THE COUNTRY. Appleton, T. brewer, Manchester, March 24, at twelve, Manchester.-Cooke, T. baker, Cheltenham, March 23, at eleven, Bristol.-Cooper, P. E. draper, Sutton, Macclesfield, March 18, at twelve, Manchester.-Cummings, J. publican, South Shields, March 27, at half-past one, Newcastle.-Garlick, J. victualler, Mottram, Longdendale, March 20, at twelve, Manchester.-Henley, T. painter, Bath, March 30, at eleven, Bristol.-Wilde, R. butcher, Melverley, March 21, at half-past ten, Birmingham, Aitken, J. and Mapleton, J. leather dressers, Russell-st. Bermondsey, March 6. Debts paid by Aitken.-Alexander, W. and J. sadlers, Hungerford, Jan. 1.-Archer, E. T. and Taverner, T. J. paper stainers, Old-st. and Milton next Gravesend, March 5. Debts paid by Archer.-Boura, A. and J. dyers, Rathbone-place and Edgeware-road, March 1. Debts paid by A. Boura.-Brand, W. F. and R. C. linen drapers, Wigan, March 5. Debts paid by W. F. Brand.Cottrell, G. H. and Morley, T. morocco leather dressers, Barbican, March 6. Debts paid by Cottrell-Cole, C. and Gell, W. furniture brokers, Nottingham, March 5. Debts SLEDDON, THOMAS, cotton spinner, New Mills, Derby-paid by Cole.-Cruikshank, P., Melville, J., Ramsay, R. and shire, and cotton broker, Liverpool, March 27 and April Street, W. F. Austin-friars, so far as regards Ramsay, Dec. 24, at twelve, Liverpool, Com. Phillips; Cazenove, off. 31.-Day, H. and Marshall, E. school keepers, Balham-hill, ass.; Gregory and Co. Bedford-row, and Rogerson and Feb. 20.-Donaldeon, H. and Hudson, T. Mark-lane, July 1. Ratcliffe, Liverpool, sols. Dat of fiat, March 10. Bank--Grimley, G. and Kirkby, W. boot manufacturers, Notrupt's own petition. tingham, March 5.-Harratt, E. and Balbirne, T. builders, Kirkup, J. coal merchant, Rotherhithe. - Collins, W. STREETER, THOMAS, draper, High-st. Camden-town, Huntingdon, Feb. 16. Debts paid by Harratt.-Hopwood, tailor, Rugby, Warwickshire.-Bryant, J. draper, Mayfield, March 24, at halt-past one, and April 30, at two, Basing- J., Mence, W. C. and Jackson, H. coal masters, Barnsley, Sussex.-Harris, I. clothier, Croydon.-Ward, H. paper hall-st. Com. Evans; Johnson, off. ass.; Reed and Lang- Feb. 9th.-Maude, J. M. and E. cement manufacturers, manufacturer, Ludgate-street.-Stone, W. dealer and chapford, Friday-st. sols. Date of fiat, March 3. J. Scott Rotherhithe, March 2.-Perry, C. and Lateward, J. coach man, Wood-street.-Ellison and Goodworth, linen manufac and R. Kerr, shawl warehousemen, St. Paul's church-yd. builders, Wolverhampton, March 3.-Rigg, J. and Boykett, turers, Barnsley, York.-Whalley, J. and C. seedsmen, Lipet.crs. C. slaters, Liverpool, March 6. Debts paid by Rigg.-Ro-verpool.-Preston, R. B. coal dealer, Leigh, Gloucester.— TRIBE, SARAH, innkeeper, Liverpool, April 3 and 24, at berts, J. B. and Cheetham, E. stockbrokers, Sheffield, March Brady, C. commission agent, Aston-nigh, Birmingham.— eleven, Liverpool, Com. Ludlow; Bird, off. ass.; West-6.-Salmon, J. jun. and R. C. coal merchants, Beaufort, Edwards, R. woollen-draper, Huddersfield. From the Gazette of Friday, March 20. Page ....... 517 Vice-Chancellor of England's Court.............. 518 ................ 519 Rolls Court... Vice-Chancellor Bruce's Court LAWYER-Summary PROMOTIONS, APPOINTMENTS, &C... LEGAL INTELLIGENCE.............................. PROCEEDINGS OF LAW SOCIETIES Dublin Law Institute CORRESPONDENCE Assize Courts.. Solicitors' Life Insurance. Solicitors' and General Life Insurance Selections from Correspondence... LEADING ARTICLES Railway Liabilities.. Irish Legal Education Another Advertisement. Liabilities of Shareholders (continued).. BIRTHS, MARRIAGES, and Deaths PROPERTY JOURNAL Practice of Sales (continued) Public Sales... Money Market.. GAZETTES ADVERTISEMENTS. THE REPORTS. 519 520 520 522 523 524 mortgage, out of the estate, for the plaintiff's benefit. and three other trustees, upon trust to pay the inte- Russell and Shadwell, for the plaintiff, in support of 527 527 530 The LORD CHANCELLOR.-Do you mean to say Sturton, for Lady Mountnorris. 530 530 530 631 JUDGMENT. Dec. 20, 1845.-The LORD CHANCELLOR.-In the settlement made on the marriage of Sir Henry Cavendish, in the year 1757, a provision was made for raising under the trusts of a term of 500 years the sum of 10,000l. for the portions of the younger chil532 dren of the marriage. 531 531 532 ........ 533 The portions were to be paid to such of the younger sons who should have attained the age of twenty-one 533 years, and to such of the daughters as should have 534 attained that age, or be married (which should first ..... 534 happen), after the decease of the said Sir H. Caven535 dish. The settlement directed, that if there should be two or more younger children of the marriage, the 10,000l. should be appointed between them, as Sir H. Cavendish and his wife, or the survivor of them, should appoint; and in the event of there being no appointment, then equally. The appointment of the 10,000l. was made among four of the children. The last appointment was of the sum of 3,000l. making up the whole sum of 10,000l. This sum was appointed to one of the children only, leaving two of the children without any appointment in their favour. The 3,000l. has not been raised. The Vice-Chancellor decided that this last appointment was not warranted by the power, and that each of the younger children was, therefore, entitled to an equal share of the 3,000l. The Statute of Limitations has no application between No complaint has been made of this part of the decia trustee and cestui que trust; and consequently sion. But then it was contended that as all the where a term of 500 years had been created to raise younger children had attained twenty-one in the lifeportions for younger children, it was held to be a subsisting trust for such of the children as had not time of Sir H. Cavendish, who died in 1804, the claim was barred by the Statute of Limitations received their portions, although upwards of twenty 3 & 4 Wm. 4, c. 27, s. 40, by which it is years had elapsed since the portions had become pay-enacted "that no action, suit, or other proceeding able, and the claimants had been under no disability. shall be brought to recover any sum of money se Neither the trustee of the term, nor the person taking cured by any mortgage, judgment, or lien charged the estate subject to the trust term, could set up the upon or payable out of any land or rent at law or in statute as a bar to a claim to have the unpaid por-equity or any legacy, but within twenty years next after a present right to receive the same shall have accrued to some persons capable of giving a discharge or release for the same." But in this case the term of 500 years is still in the trustees, and there is nothing therefore in the statute to prevent them from raising the residue of the 10,000l. in manner directed by the settlement. The money, when so raised, will be held by them as trustees for the purpose of the settlement, and therefore as to the two seventh shares for the plaintiff, the personal representative of two of the younger children. To a case of this nature, between the trustees and cestui que trust, the statute has no application. The trustee holds not adversely to his cestui que trust, but for him and for his use and benefit. The judgment, therefore, of the Vice-Chancellor upon this point must be affirmed, with costs. tions raised out of the estate. In 1757, a settlement was made upon the marriage of Sir Henry Cavendish and Sarah Bradshaw, afterwards Baroness Waterpark, by which a term of 500 years in the settled estates was limited to trustees, upon trust to raise 10,000l. for the portions of the younger children of the marriage. The settlement declared that if there should be two or more such children of the marriage, the 10,000l. should be paid to and distributed amongst them, in such shares as Sir Henry Cavendish and his wife, or the survivor of them, should appoint, and for want of appointment, equally between them. The portions were to be payable after the death of Sir Henry Cavendish and his wife, to the sons at twenty-one, and to the daughters at twenty-one, or marriage. There were seven younger children of the marriage, all of whom attained twenty-one in the lifetime of their father, who survived his wife. Different sums, amounting altogether to 7,000l. were at various times appointed to three of the children. In February, 1803, the remainder of the fund was appointed to George Cavendish, and in 1804 Sir Henry Cavendish died, no part of the fund having been appointed to Mrs. Lopez, Deborah, and Augustus, three of the younger children. In 1832, Deborah and Augustus having died, the plaintiff obtained administration to their effects, and in 1838, having discovered that Mrs. Lopez had filed a bill for her portion, and had obtained 1,0007. as a compromise, commenced the present suit, praying that all the appointments of the 10,000l. might be declared void, and that that sum might be raised out of the estate. The defendants in the suit were Lord Waterpark, the grandson of Sir Henry Cavendish, who was in possession of the estate as tenant in tail under the settlement, his mortgagee, and a trustee for the mortgagee, to whom the term of 500 years had been assigned with notice of the settlement. The Vice-Chancellor of England held that the appointments of the 7.000l. were good, but that the appointment of the 3,000l. the residue of the fund, to George Cavendish, was bad, and directed the trustee of the term to raise two seventh parts of 3,000l., by sale or VOL. VI. No. 156. such part of the principal as should not be dis posed of by any such direction or appointment, in trust for the executors or administrators of the said Robert Hamilton. And the testator empowered the trustees to lay out the sum of 2,5007. in the purchase of an annuity for the life of the said Robert Hamil ton, to be made payable to them, the said trustees. And the testator directed that the said annuity should be paid and disposed of by the said trustees, in like manner and under the like restrictions as before directed concerning the dividends, &c. of the 2,500l. The testator nominated the defendant, Williams, and the other trustees his executors. By several codicils the testator changed the trustees and executors, and died on the 26th of December, 1831. The will and codicils were proved by the defendants, Williams, Gatty, and Ritter. Robert Hamilton was a first cousin of the testator's, had been in the army, and was an extravagant man, and had been greatly assisted by his relative with loans of money, for which Robert Hamilton's promissory notes had been taken by the testator; but no interest had ever been paid upon the notes, and, with the exception of a sum of about 3001. all the advances had been made more than six years before the testator's death. Hamilton had left the army under circumstances which induced him to seek to explain his conduct to the authorities at the Horse Guards, and for that purpose he printed a pamphlet, in which he referred to the sum of 1,1007. (advanced to him by the testator, to purchase a captain's commission) as a debt due to the testator (who was then living), and which he, Hamilton, had solemnly engaged to pay. On leaving the army, Hamilton engaged in the wine trade, and on the 27th of Janu ary, 1832, about a month after the testator's death, became bankrupt. The assignees applied to the executors for payment to them of Hamilton's legacy, which the executors declined to pay except under the direction of the Court. The assignees and creditors refused to take any proceedings against the executors, and an arrangement was then come to with Robert Hamilton, under which the fiat was annulled, and his creditors agreed to withdraw all claim to the legacy on securing to them 10s. in the pound upon the amount of their debts. In carrying out that arrangement, the legacy had, after some intermediate assignments, become vested in the present plaintiff, who had filed her bili against the executors for payment of the legacy. Robert Hamilton was examined before the commissioner under his bankruptcy, and then stated that the sums advanced to him by the testator were loans and not gifts. In this suit Sir John Hamilton, brother of Robert Hamilton, and a confidential servant of the testator, had been examined, who stated that the testator had declared he never intended to require repayment of his advances from Robert Hamilton. Vice-Chancellor Wigram had referred it to the Master to inquire whether Robert Hamilton was indebted to the testator at the time of his death. The Master found the particulars of the debts, &c. of which the result is above stated. To that report the plaintiff excepted, and the cause upon further directions and the exceptions were heard together. The Vice-Chancellor decreed that the total amount of Statute of Limitations-Admissions sufficient to take Robert Hamilton's debt to the testator, amounting to a debt out of the statute-Executors-Retainer-2,3351. ought to be set off against the capital of the Set-off. legacy of 2,5001. From that decree the plaintiff Although the circumstances under which money had appealed. March 5 and 7. COURTNEY v. WILLIAMS. been advanced as loans to a relation by the testator Malins and Rudall for the appeal, cited and referred to Wickett v. Raby (2 Bro. Par. Cas. 386); Foley v. Hill (1 Phillips, 9 Geo. 4, e. 19, s. 4); Shears v. Hartley (3 Espinasse, 81; 1 Maddock Chancery Practice, 787); Steel v. Beasant (5 Barn. & Adol.); Higgins v. Score (2 Barn. & Adol.); Leek v. Lord Kilmorey (Turn. & Rus. 207). Lowndes and Glasse for the defendants, cited Eden v. Smyth (5 Ves. 341); Flower v. Martin (2 Myl. & C. 459); Hopkinson v. Leech (1 Madd. Ch. Pr. 728.) JUDGMENT. Where a debt is due from a legatee to the testator, the to be clear to me that the sums advanced were originally loans and not gifts. The legatee, Mr. Hamilton, was a relation of the testator, and a person in whose prosperity in life he appeared to have taken an interest. Hamilton was also an extravagant and needy man, dependent in a great measure on the bounty of this relative. There was nothing therefore unnatural in the supposition that he should advance him sums of money by way of loan, never indeed expecting to be repaid, but nevertheless taking a security for payment, and reserving to himself the right of proceeding on that security if he thought fit to do so; or if the altered circumstances of the debtor or a change in his feelings with respect to him, gave him the inclination to insist on being repaid. That is the first point in the question of these advances not being gifts. The second and most material one is to be found in the conduct of the legatee himself. It was his obvious interest to make these advances appear to be gifts, and not loans; and yet they had his own admission that he considered them debts due to the testator. There was also a pamphlet published by Hamilton as a letter to Lord Fitzroy Somerset in justification of his conduct in the army; and in that letter he alleged as a defence against imputations which might have caused him to be compelled to sell his commission, that he was under a binding engagement to repay the testator the 1,100l. advanced to him for the purchase of his commission. If the evidence of the intentions of the testator, as gathered from the construction of the will, and supported by the testimony of his brother, Sir J. Hamilton, stood alone, I should have little doubt in coming to the conclusion that the loans were converted into gifts; but when they had this clear evidence of the legatee's own view of the case, I think the weight of evidence is against the assumption that the debt did not exist at the time of the death of the testator. The question then arises whether the remedy of this debt is barred by the statute; or, being so barred, whether it may not be set off against the claim for the legacy. It is quite clear that no action can be brought by the executors to recover the debt. They are expressly prohibited by the statute. The barring of the remedy for the recovery of debt does not, however, extinguish the debt. The debt remains, notwithstanding the legal obstacle to its recovery; and if any circumstance exists through which the party having the claim can make the debt available to the estate entitled to the benefit of it, he is bound to avail himself of it. The executors in the present instance are the trustees of the estate of the testator. The debt due by the legatee is a part of the assets of the testator. The legatee claims to have the sum paid to him out of the assets in satisfaction of a legacy. The legatee had a part of the assets, out of which the payment was to be made, in his own hands. Are not the executors entitled to say, "Pay yourself as far as the money in your hands allows?" That is a payment pro tanto. That is the true principle on which such cases ought to proceed. The executors have a right to say to the legatee, "You have assets of the estate in your hands, apply them to the payment of your demand." That is the rule; and it is so set forth in a case cited in the course of the argument. In that case the debt had not been barred by the statute; but it was held that a payment made in that way by the executors was a payment pro tanto. I am therefore of opinion, that the Vice-Chancellor has come to a right conclusion on the question; but inasmuch as that learned Judge has expressly stated one of the points to be a new one, on which the Court had hitherto avoided a decision, I shall dismiss the appeal, but give no costs. From the statement in the bill, it appears that in the year 1832 the plaintiff, F. Rolfe, together with his father, James Rolfe, and the plaintiff's brother, William Rolfe, carried on in copartnership the business of tailors. In the month of September in that same year, they agreed to dissolve the partnership, and a deed for that purpose was accordingly executed by them, which, after reciting that the said James Rolfe and William Rolfe had respectively agreed to give up to the plaintiff all their respective interests in the goodwill of the said business, and of the stock in trade, &c. in consideration of the plaintiff securing to the said James Rolfe during his life an annuity of 2001. and to Elizabeth Rolfe, wife of the said James Rolfe, if she should survive him, an annuity of 50l. and in consideration of 1,0501. to be paid to the said William Rolfe, the said James Rolfe and William Rolfe, for the considerations aforesaid, assigned all their interest in the said partnership business to the plaintiff, his executors, administrators, or assigns. The deed contained the following covenant on the part of the said James Rolfe and William Rolfe, respectively: "That in consideration of the premises they, the said James Rolfe and William Rolfe respectively, should not, nor would at any time or times thereafter, carry on, or practise, or engage in, alone, or with any other person or persons, the trade or business of a tailor, or of a tailor or draper, within the space of twenty miles, from the Standard at Cornhill in the city of London. And further that they, the said James Rolfe and William Rolfe respectively, or their respective exccutors or administrators, should not, nor would at any time or times thereafter by themselves respectively, or by any agent or agents, do, or omit respectively, any act, matter, or thing whatsoever, by the doing or omission whereof respectively, the plaintiff, his executors, administrators, or assigns, should or might be hindered and obstructed from receiving the full benefit of the goodwill thereinbefore assigned, or intended so to be, or any of them, or any part or parts thereof respectively; but, on the contrary, that they, the said James Rolfe and William Rolfe, respectively, and their respective executors and administrators should and would, upon every reasonable request to be made for that purpose by the plaintiff, his executors, administrators, or assigns, make, do, perform, and execute all and every such further and other lawful and reasonable acts, deeds, matters, and things whatsoever as he, the said James Rolfe, his executors, administrators, or assigns, should advise and require to be done for the better effectuating these presents; and every assignment, power, clause, matter, and thing thereinbefore contained, and for the better and more speedily and effectually recovering, receiving, and getting in by plaintiff, his executors, administrators, and as. signs, the effects and premises therein before assigned, or intended so to be, and every part thereof, and for the enjoyment by the plaintiff, his executors, administrators, or assigns, of the said goodwill; and also should and would give their respective assistance, and use their respective best endeavours that the said debts, effects, and premises might be speedily and effectually got in and received by the plaintiff, his executors, administrators, or assigns, and the said good will enjoyed by him and them. And it was further witnessed, that in pursuance and further performance of the said agreement on the part of the plaintiff, and in consideration of the premises, the plaintiff did thereby for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree with and to the said William Rolfe, his executors, administrators, and assigns, that he, the said William Rolfe, should be employed as a cutter in the said business so to be carried on by VICE-CHANCELLOR OF ENGLAND'S plaintiff, his executors, administrators or assigns, so long as the said business should be so carried on by him or them, or so long as he, the said William Rolfe, diligently and faithfully attended to the said business, and devoted the whole of his time thereto; and during such time, and so long as the said William Rolfe should be so employed, the plaintiff, his heirs, executors, administrators, and assigns, should and would, from time to time, pay, or cause to be paid, unto the said William Rolfe, by way of salary for such employment, such a sum of money as should, for the time being, be equal to the rates and proportions following, that is to say, during the life of the plaintiff, at the rate of 61. 5s. per centum on the amount of money received on account of the said business, and after the decease of the plaintiff, then at the rate of 71. 10s. per centum on the amount of money received on account of the said business. And, lastly, the said William Rolfe, for the observance and performance of all and singular the covenants and agreements in the said indenture on his part contained, did thereby bind himself, his heirs, executors, and administrators, to the plaintiff, his executors, or administrators, in the full sum of 1,000l. of lawful money of Great Britain, as liquidated damages, and not as a penalty, or relievable against either at law or in equity." COURT. Thursday and Friday Jan 29 and 30. ROLFE v. ROLFE. Practice-Injunction on an agreement enforcible in part, and as to another part not. This was a dissolution between two tradesmen A and B. 1B, one of the partners, in consideration of A, the other * ̈* partner, paying him a certain sum of money, made an assignment of all his interest in the said business to A, and entered into a covenant not at any time to carry on or practise or engage in alone, or with any other person, the trade or business of a tailor within the space of twenty miles from London. In a subsequent part of the same deed, A covenanted that B should be employed as a cutter in the said business so long as it should be carried on, or so long as B should diligently and faithfully attend to the said business. Upon an injunction bill filed to restrain B from carrying on the business of a tailor :Held, that although so much of the agreement as referred to the employment of B could not be enforced in a court of equity, yet there being a good consideration for B's negative covenant not to carry on business, &c. the Court would enforce that part of the agreement. Held, also, that acting as the foreman for another party in the business of a tailor, was a violation of the agreement on the part of B. cutter down to the month of October last, when, in consequence of his inattention to and neglect of plaintiff's business, and of the plaintiff having overpaid the defendant, as regarded the per centage, upwards of 1,3001. he had declined paying him any more salary until he had repaid himself the amount which he had overpaid defendant; that the defendant then withdrew from plaintiff's employment altogether, and commenced business in London, as a tailor, in partnership with another person. The bill, therefore, prayed that the defendant might be restrained from further carrying on, or practising, or engaging in, alone or with any other person or persons, the trade or business of a tailor and draper, within the space of twenty miles from the Standard in Cornhill, in the city of London, and from interfering with, injuring, or disturbing the enjoyment by plaintiff of the goodwill in the said trade or business. The plaintiff now moved for the injunction. Several affidavits were filed by the defendant in opposition to the motion, for the purpose of shewing, amongst other things, that the defendant was only acting in the capacity of a foreman to a person by the name of Willis, in the business of a tailor; Willis being at that time a bairdresser and perfumer. Bethell and T. H. Terrell, in support of the motion. James, Parker, and Gifford, on the other side, contended that unless the Court could carry the whole agreement into effect it would not interfere as to part only; and that the performance of the second part of the agreement could not be enforced if a specific performance could not be decreed as to the whole. If as to a part of the agreement, the Court could not give relief as where the remedy was in damages at law, the Court would not say, "So far you may come into equity, but the other party must be left to his remedy at law." Moreover, the covenant was in itself unreasonable, namely, that the defendant should not even work at his trade within twenty miles of London. And lastly, by the defendant's acting as foreman of another person he was not doing any thing in violation of the covenants, and could not thereby be considered as a trader within the meaning of the bankrupt laws. Cases cited:-Kemble v. Kean (6 Sim. 333): Kimberley v. Jennings (Ib. 340); Hooper v. Brodrick (11 Sim. 47). Bethell, in reply, contended that in the first men. tioned case cited by the other side, the prayer of the bill was that the agreement might be specifically performed, and, in the mean time, that the defendant Kean might be restrained from acting at Drury-lane Theatre, and that the observation of the Court in that case was most conclusive, namely, that the injunction was sought by the plaintiff as ancilary only, which differed from the present case, as also did the other two mentioned cases; since that part of the agreement relating to the employment of defendant by the plaintiff being wholly independent of that part which related to the negative covenant, it was capa ble of being enforced by the Court. The VICE-CHANCELLOR.-This agreement may be divided into two parts. The first part is, that a thousand guineas should be paid to William, and an annuity to the father. The partnership was to be dissolved, and the business carried on by Francis; part of the stipulation being that William was not to carry on the business of a tailor within a certain distance mentioned in the agreement. Then comes the second part of the agreement, which, upon the very face of it, was only intended to be continued during the option of either of the parties; for the terms are not absolutely laid down that William should be employed and a definite sum paid to him; but either party might, under the terms, put an end to it; and no relief is sought in reference to this part of the agree ment. Now this part of the agreement was to the effect that Francis would employ his brother William during the continuation of the business, or so long as William "diligently and faithfully attended to the said business," and during the time he should be so employed, Francis was to pay him a certain per centage upon the money received on account of the said business. It was, therefore, competent for Francis at any time to put an end to the agreement by ceasing to carry on the business, and for William, by not faithfully and diligently attending to the business. Now it is very clear that no Court could interfere with the terms contained in this part of the agreement, but does it follow that, because an optional arrangement formed a part of the consideration, that part of the agreement which was really absolute cannot be enforced? There was a consideration given for the defendant not to carry on the business withia a certain distance; this, of course, is an agreement which this Court can enforce; the other is, I admit, one which cannot be enforced by this Court; but this is wholly distinct, and as no relief is sought in respect of the latter, but only an injunction in respect to that part which is plain, I am of opinion the injunction ought to be granted. An objection has been offered on behalf of the defendant, that he has never violated the agreement. This objection I do not think at all The bill also stated that the 1,0507, was paid by reasonable. The terms of the agreement are, “ that the plaintiff to defendant-that the plaintiff continued they, the said James Rolfe and William Rolfe respecthe said business, and employed the defendant as atively, should not, nor would at any time or times thereafter, carry on, or practise, or engage in, alone, or with any other person or persons, the trade or business of a tailor and draper." Now can it be asserted, that, when William Rolfe engages himself with Willis, in carrying on the business of a tailor, within the limits prescribed, whether as a foreman or not, it is not a breach of the agreement? Injunction granted. ROLLS COURT. Wednesday, Feb. 11. GREEDY V. LAVENDER. Practice-Preliminary inquiries—5th Order of 9th May, 1839. In an administration suit, the only one of certain preliminary inquiries asked for under the 5th Order of 9th May, 1839, which was granted, was the inquiry as to parties. This was an administration suit instituted by one of the parties beneficially interested in the estate of the testator in the cause against the executors, and the other persons interested. The testator, by his will, after giving an estate for life to his wife, bequeathed his stock and residue of his personal estate to his executors in trust for his "second cousins," sons and daughters, children of his first cousin, therein named, share and share alike, as tenants in common, to be a vested interest in them at twenty-one. The plaintiff's title was admitted by all as one of the class of persons among whom the distribution was to be made. It appeared also that some of the children had incumbered their reversionary shares during the life of the widow. Blunt now proposed, under the 5th Order of the 9th May, 1839, in the first place that there should be a preliminary inquiry as to who were proper parties; next, that the Master should inquire whether the testator's first cousin named in the will had any children at the testator's death, and after; and whether they were living or dead; and if they were dead, who were their personal representatives; what incumbrances there were; who was meant by Elizabeth, one of the legatees, wrongly named Mary, as was supposed, &c.; with liberty to state special circumstances. Hallett.-The only preliminary inquiry that can be granted is merely an inquiry as to who are parties. The MASTER of the ROLLS.-That is all. Blunt asked to have it added, that if the Master found that the parties were proper parties, he should go on to make the other inquiries. The MASTER of the ROLLS.-Not, if Mr. Hallett objects. Turner, for one of the reversioners. Blunt consented to take the order as to parties merely. Saturday, Feb. 14. TRISTRAM v. ROBERTS. Solicitor and client-Privileged communicationsDemurrer to interrogatories. A solicitor who is called upon as a witness, must answer as to any particular matter of fact, for the benefit of third parties; as, for example, he must prove the execution of a deed, though by doing so he may injure his client; but if he is asked as to any point which may be the result of a course of conduct or a series of transactions, he is not bound to answer. This was a suit by the plaintiff to enforce the specific performance of a contract for the purchase of real estate, by the defendant, Thomas Roberts. In making the purchase, Mr. Williams acted as the solicitor of Mr. Roberts; and the plaintiff, the vendor, in taking his evidence, examined Mr. Williams as a witness on his behalf. The fifth interrogatory was to this effect: whether he was the solicitor of any and which of the parties in the suit, in all or any of the transactions in the pleadings mentioned; whether, as solicitor of Thomas Roberts, he had raised any objection to the plaintiff's title to the property contracted to be purchased by Roberts from the plaintiff, and what were those objections; and whether the objections were waived by the defendant, or by any one acting as agent for him. The witness, in answer to this interrogatory, said, that from the beginning of 1836 to the close of 1840, he was the solicitor of Thomas Roberts, and acted as such solicitor in the purchase of the estate in question. The remaining part of the interrogatory he declined answering, on the ground that it related to transactions and communications which he considered privileged, because of the existing relation of solicitor and client. The witness having thus demurred to answering the interrogatory, except to the extent already mentioned, the matter came before the Court, and the propriety of the demurrer was now discussed. Temple (with him Harwood), for the demurrer, after some discussion gave up the point as to the fact of objections having been or not having been raised to the title, but insisted that the witness was not bound to answer as to the waiver. Lowndes (with him Wilcock), contrà.-To give it the character of a waiver, it must be a communication to the vendor or his solicitor; and the question is, not whether the defendant informed his solicitor that his intention was to waive, or that he had waived the objections, but whether they were waived. There was nothing to shew that any of the matters sought to be ascertained by the interrogatory ever became known to the witness in his character of solicitor of the defendant, or by communications from him. The word "confidential," it is to be observed, does not occur in the demurrer, and the information sought is not in contravention of the rule of privileged communications. They cited Morgan v. Shaw (4 Mad. 54); Parkhurst v. Sowten (2 Swanst. 194, 1 Meriv. 191). The MASTER of the ROLLS said that if this was a communication between the solicitor and a third party, the plaintiff would be entitled to his answer; for the solicitor could not object to prove a distinct fact, for the benefit of third parties, even though it might turn out to be detrimental to his client. But if he were called upon to answer as to a fact which might be the result of a course of conduct or a long series of transactions, it would be a different thing; he would not be bound to give evidence in such a case; and indeed he would be somewhat bold in venturing to do so; and even if he did do so, the evidence would only amount to an expression of opinion. The witness is not bound to answer the interrogatory in its present form. Temple proposed that the interrogatory should be put in a different shape, so as to enable the witness to answer without violating his duty to his client, and this was acceded to, and the matter stood over for that purpose. VICE-CHANCELLOR KNIGHT BRUCE'S COURT. Feb. 14, 16, 17, and 19. HOBSON v. EVERETT. Marriage with ward of court-Contempt. Observations as to the course to be taken where, to avoid executing the marriage settlements approved of by the Court, on behalf of one of its wards, the parties waited until the ward attained her majority, and then, after the execution of other settlements, the marriage took place. The circumstances under which the question alluded to in the remarks of the Vice-Chancellor arose, are fully stated by him. The parties in the suit agreed to a compromise, which precluded the necessity of a judgment by the Court, but the case is one of importance, and therefore it is considered proper to give the opinion entertained by the Court upon it. Wigram, Bacon, and Glasse for the plaintiff. Russell, Leach, Swanston, Anstey, Cholmley, and Hale, for the different defendants. The following cases were cited:-Ex parte Gardiner (2 Ves. sen. 671); Stackpoole v. Beaumont (3 Ves. 98); Hodgens v. Hodgens (4 Cl. & Fin. 323); Austen v. Halsey (2 Sim. & Stu. 123, n.); Long v. Long (2 Sim. & Stu. 119); Re Donne (2 Molloy, 490); Groves v. Clarke (1 Keen, 132); De la Garde v. Lempriere (6 Bea. 344); In re Barrington (2 Molloy, 249); and Simson v. Jones (2 R. & M. 365). Feb. 19.-The VICE-CHANCELLOR said, that although Mr. Ferraby's counsel had thought fit to accept the compromise which had been suggested by the Court, it might be proper to state the grounds up n which the Court had thought it desirable to recommend that compromise, and the course which might have been considered proper for the Court to adopt bad the compromise not been accepted. The matter stood thus:-Miss Abigail Everett, who was born on the 13th of May, 1813, was a ward of Court, and was a party to the cause of Hobson v. Everett. She had been, properly and honestly as one party would say, improperly and dishonestly as the other party would say, made a ward of this Court by a person who was her guardian and trustee and executor under her father's will, in a suit instituted, ostensibly or really, for the purpose of having the accounts of the testator properly taken. Her property under her father's will amounted to about 15,000l. An attachment arose between Mr. Ferraby and Miss Everett some time previous to the institution of the suit. The course of that attachment did not at first run smooth. Mr. Hobson, the young lady's guardian, reasonably or otherwise, refused his consent to the marriage. Things afterwards, however, took a more favourable turn, and a reference was made to the Master, with a view of ascertaining his opinion as to the propriety of the marriage and of Mr. Ferraby's proposals. After some delay, whether reasonable or otherwise, the Master, on the 28th of March, 1844, made his report, approving of the marriage and of the proposals, which appeared to be prudent, sensible, fair, and proper. This report was on the following day, upon the petition of Mr. Ferraby, confirmed, and the usual reference was made back to the Master. It appeared there had been some family quarrels. He used the expression "family quarrels," because Mr. Hobson was a cousin of the young lady's father. Mr. Hobson, whether with or without much reason, was not much liked or trusted by the young lady's mother and Mr. Ferraby; they accused him, whether justly or unjustly, of having committed certain breaches of trust. Mr. Hobson, nevertheless, persisted in proposing himself as a trustee of the settlement to be prepared before the Master. This proposition gave umbrage and displeasure to Mrs. Everett and Mr. Ferraby, or one of them-a displeasure not mitigated by the dislike entertained by Mr. Ferraby of the proposals confirmed by the Court. In this state of their feelings, instead of applying to the Master, the course taken by Mr. Ferraby and Mrs. Everett, and their solicitor, was this they resolved upon discontinuing all proceedings before the Master, upon having settlements made different from those which were to have been made before the Master, and having such different settlements executed upon Miss Everett's attaining her majority. This arrangement was made during her minority. Whether it was made with or without the knowledge of Mr. Hobson, he never consented to it; they acted upon it during her minority. Miss Everett attained her majority in May, 1844. The settlements differing from the proposals before the Master were then executed, and soon afterwards, namely on the 23rd of May, the marriage took place. The difference between the settlement and the proposals before the Master consisted in this, that whereas by the proposals the whole of the young lady's fortune was to be settled upon herself and the issue of the marriage, and a sum of 6,000l. to be settled by the husband; by the settlement the young lady's property was not wholly, but partially and objectionably settled upon herself and the issue; and her husband was released from the 6,000l. and settled nothing. This state of things having been brought before the Court by Mr. Hobson, the first question would have been whether the conduct of Mr. Ferraby, Mrs. Everett, and their solicitor, during the interval between the Order of March 1844 and the 15th May 1844, did not amount to a contempt of Court on the part of some one or all of these three persons. It was impossible not to feel strong disapprobation of such a line of conduct. That Mrs. Ferraby acted under the influence or guidance of Mr. Ferraby and Mrs. Everett, or one of them, of course he did not doubt. The question of contempt, however, was a difficult one. But, even in that view of the case, the course taken by the parties had been such during the minority of Mrs. Everett, as to intercept the declared intention and jurisdiction of the Court, and to substitute a less advantageous settlement for that which the Court had sanctioned, and that, but for the arrangement which had been entered into, his Honour had determined to compel Mr. Ferraby, Mrs. Everett, and their soli. citor to shew cause why they, or some or one of them, should not be committed as for a contempt. Another question would have been, how this Court would, in this suit, have acted, as to Mrs. Ferraby, treating her as not bound by the settlement, and with a view to affect her property; and he was of opinion that as she did not ask to be relieved against these settlements, he could not act against her property in this suit, though other proceedings to which his Honour more particularly adverted, might have been had for that purpose. Another question would have been, how the report and order of the Court could be confirmed, so as to bind Mr. Ferraby; and whether, under the cir cumstances which had taken place, he was discharged from the effect of that order and report. His Honour was of opinion that he was not; the report and order were a contract on his part, not only in favour of the ward of the Court, but of the children of the ward, who were the objects of the protection and care of the Court. The Court, on the faith of that contract, allowed a course of action deeply affecting that ward and her children, which it would not otherwise have allowed. The Court was entitled to believe, to trust, to expect that the conduct which took place between the 28th of March, 1844, and the marriage, or the end of the minority, would not take place, would not be wished to take place, would not have been permitted by any professional gentleman to take place. In this view of the case he was satisfied that neither on public nor private grounds could Mr. Ferraby be permitted to say, for any effectual purpose in this court, that from the treaty which he had thus made, and which was founded on the order and report, he had ever been discharged. His Honour added, that Mr. Ferraby must pay so much of the costs of the suit as related to these transactions. The Court viewed with marked and unqualified dissatisfaction the transactions connected with the deeds of 1844,-deeds which any friend of Mr. Ferraby should have advised him not to execute. He said this on the broad ground of integrity and uprightness. Every person had a right to expect this Court to act for the protection of the orphan and the helpless; it was not a court of honour, but it was a court of equity; and equity and honour was sometimes one and the same. |