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BREACH OF TRUST. DEED OF APPOINT

MENT OF NEW TRUSTEES.-SIMPLE CON-
TRACT DEBT.

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Superior Courts: Lords Justices.-Rolls.-V. C. Kindersley.-V. C. Stuart. 85 The Lords Justices, in making the order for The Vice-Chancellor said, that the Court had the examination of the witnesses, except the no power to declare the judicial factor a trustee one in question, according to the new practice, within the Act, but as the dividends were withdirected that the examination and any cross- in the power of the parties, an order for payexamination of such witness according to the ment of the dividends would be made if the old practice should be without prejudice to the insurance office entered the petitioners' names right of either party at the hearing to apply for in their books. his oral examination and cross-examination by the Court.

Wynch v. Grant. May 29, 1854.
Master of the Balls.
Freer y. Freer and another ; Shield v. Same.
May 29, 1854.

A breach of trust was committed in dealing ADMINISTRATION CLAIMS.-CRCDITOR AND with the trust moneys under a marriage HEIR-AT-LAW.-Costs.

seitlemcnt : Held, that the trustecs, who Separute cluims were filed for the admini- were appointed by deed, under hand and stration of the estate of an intestate by his seal, of assignment of the trust property, heir and by a creditor : an order was made but without any words of covenant, were for an administration on the two claims, the simple contract and not specialty debtors. heir to have the conduct of the proceedings. It appeared that a sum of 7,4001. was settled The defendants, who were the administrators, on the marriage of Mr. and Mrs. Wynch, on

had appeared by separate counsel, held that certain trusts, and that a breach of trust had

one set of costs could only be allowed. been committed in dealing therewith, and the These were administration claims filed by question now arose, whether the trustees were the infant heir and by a creditor of Mr. Wm. specialty or simple contract debtors. The Freer, who had died' intestate. It appeared deed whereby they were appointed contained that a claim was necessary, as there were real an assignment of the property to them on the estates subject to mortgages, and that an ap- trusts of the settlement, and gave them power plication at Chambers for the usual administra- to act as if originally appointed thereby, but tion order by the heir had been unsuccessful. there were no words of covenant in the deed, The defendants, who had taken out letters of which was made under their hands and seals. administration, appeared by separate counsel. Glasse and A. Smith for the plaintiff; W. His

Berkeley, Baggallay, and F. Webb for the lop Clarke for the tenant for life; Giffard and several parties.

Cairns for the executors. The Master of the Rolls said, that the order Adey v. Arnold, 2 De G., MN. & G. 432, would be made on the two claims, but that the was cited. heir would have the conduct of the proceed- The Vice-Chancellor said, that on the auings—the administrators to have only one set thority of the case cited, the debt was a simple of costs.

contract and not a specialty debt. Vice-Chancellor Kindersley.

Vice-Chancellor Stuart.
In re Alexander's Trust. May 26, 1854. Cope v. Arnold. March 2, 3 ; May 27, 1854.
TRUSTEES' ACT, 1850.—JURISDICTION OVER

JUDICIAL FACTOR IN SCOTLAND. — IN-
SURANCE POLICIES.

A testator by will decised real estates to his The judicial factor, appointed in Scotland to

eldest son for 99 years, if he should so long a testator upon the refusal of his executors

live, and subject to the term to trustees for to act, held not within the 13 d. 14 Vict.

his life to preserve contingent remainders, c. 60, s. 27, and the Court refused to de

and from and after the determination of clare him a trustee for the assignees of cer- the said estates, subject as aforesaid to the tain policies of insurance in this country,

heirs of the body of the eldest son. There or to appoint a trustee to assign ; but an

was a devise over in default of issue in the order for payment of the dividends to the

same terms to the second son, and in deassignees was made-the insurance office

fault of his issue to the heirs of the testaentering the assignees' names in their books.

tor's body, &c. By a codicil he confirmed This was a petition under the Trustee Act, the will, and devised all his freehold and 1850, 8. 27, for the appointment of a trustee copyhold estates to trustees to the use of to assign certain policies of insurance in the them in fee, upon trust immediately after Amicable Insurance Office, which had been his death to convey to the trustees of his assigned by the testator, upon the refusal of marriage articles a certain part to make his executors to act, and of the judicial factor, up his wife's jointure. The son executed u who had been thereupon appointed in Scot- disentailing deed, and devised the estates to land, to complete the assignment. It appeared the defendant, but it appeared that there that the insurance office had recognised the was a daughter of such son who had marassignees in their books.

ried, and the plaintiff was her eldest son : Cankrien in support; Anderson for other Held, that the plaintiff took as equitable parties.

tenant in tail under the will.

WILL AND CODICIL. - CONSTRUCTION,

EQUITABLE TENANT IN TAIL.

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ACTION FOR ASSAULT AND MALICIOUS PRO

OF ACTION.

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Superior Courts : V. C. Stuart.- Queen's Bench. Mr. George ARNOLD, by his will, de- sult by implication to one to whom an express vised certain real estates to his eldest son for estate was given for a term of years : Fearne's 99 years, if he should so long live, and subject Conting. Rem. (10th ed.), vol. 1, p. 42; Adams to the term to trustees for his life to preserve v. Savage, 2 Salk. 679; Rawley v. Holland, contingent remainders, and from and after the Vin. v. 22, p. 189, pl. 11; Tippin v. Cosin, 4 determination of the said estates, subject as Mod. 380; Carth. 272; Else v. Osborn, 1 P. aforesaid to the heirs of the body of such eldest Wms. 387. But the present case was not emson; and in default of issue subject as afore- barrassed with these difficulties, as no part of said to his second son for 99 years, if he the equitable freehold could result by operation should so long live, and subject to such term of law, except so far as the limitations failed to to trustees for his life to preserve contingent exhaust the whole beneficial interest; and as remainders, and from and after the determina- the testator had disposed of the whole fee tion of such estates to the heirs of the body of simple, legal and equitable, by a series of valid the second son, and in default of issue to the limitations, which enhausted the whole and left heirs of his own (the testator’s) body, and in no part of the freehold or beneficial interest default thereof to his wife during widowhood, undisposed of for any period. As the whole and after her death or marriage to such per- of the defendant's case depended on the notion sons and for such estates as his eldest son of an equitable freehold resulting by implicashould by deed or will appoint, with similar tion to the eldest son, and there was no ground powers of appointment to the second son and for that implication, the defendant's case must the widow, and with the ultimate remainder as fail, and a declaration made in the plaintiff's fatherein mentioned. By a codicil, the testator, vour as equitable tenant in tail. after confirming his will, devised all his freehold and copyhold estates to trustees to the

Court of Queen's Bench. use of them in fee, upon trust immediately after Taylor v. Dove; Taylor v. Nesfield. May 25, his death to convey to the trustees of his mar

29, 1854. riage articles such part thereof as his trustees should in their discretion think fit, and as would, with the estates comprised in the ar.

SECUTION.-MISDIRECTION.-NOTICE ticles, make up his wife's jointure to 1,2001. per annum, and he empowered his trustees to

The defendant, a constable, was called on by sell and exchange or mortgage any part of his

the chairman of a public meeting to remove estates, and that their receipts should be suffi

the plaintiff on his attempting to interrupt cient discharges. The testator's eldest son had the proceedings, and in doing so an assault a daughter who married Mr. James Cope, and

was committed, for which the plaintiff was the plaintiff was their eldest son and now

indicted, but the grand jury threw out the claimed as equitable tenant in tail. It appear.

bill : Held, in an action against the coned that the testator's son had executed a dis. stable to recover damages for the assault entailing deed, and had by his will devised and for maliciously and without probable the estates to the defendant.

cause causing the plaintiff' to be indicted, Wigram, Malins, Toller, Rogers, C. Chap

that the question of there being reasonable man Barber, and Boyle for the several parties. and probable cause should have been left to

Cur, ad. vult.

the jury, and a new trial was ordered, the The Vice-Chancellor said, it had been argued

jury being directed to find for the plaintiff, that the effect of the codicil being to vest the

as the defendant was bound to prove he had whole fee simple of the legal estates in trustees,

legal authority, and to make the limitations in the will effective

In an action against the chairman, who justionly as giving equitable estates, the devise to

fied under the 11 & 12 Vict, C. 44, the the heirs of the body of the eldest son coalesced

notice of action omitted the word maliwith the equitable estate, said to have resulted

ciously.A rule was discharged for a to him for his life, according to the rule in

new trial upon the defendant having thereShelley's case, i Rep. 104 a; and it was said upon obtained a verdict. that, as the legal estate during his life was A RULE nisi had been obtained on April 20 given to the trustees, the freehold resulted to last, to set aside the verdict for the plaintiff him as an equitable estate, and uniting with and for a new trial in this first action, which the equitable devise to the heirs of his body was brought to recover damages for an assault, made him equitable tenant in tail. Unless it and for maliciously and without probable cause could be shown that an equitable estate of causing the plaintiff to be indicted for an asfreehold resulted, the case of the defendant sault upon the defendant in the execution of must fail. But there was an express devise of his duty as constable at Bakewell. It appearthe beneficial interest for 99 years, and if an ed that the constable had been called upon by equitable freehold resulted by operation of law, the chairman of a public meeting (the defendeither the term must be merged in the freehold, ant in the second action), to remove the plainor there must have been two equitable estates co- tiff on his interrupting the proceedings, when existing-one for the term of years and the other assault in question was committed. The grand the freehold by operation of law. There were jury had thrown out the bill on the indictment difficulties in holding, however, consistently of the plaintiff for an assault. On the trial at with decided cases, that the freehold could re- the last Derby assizes, before Jervis, L. C.J.,

as

Superior Courts: Queen's Bench.-Common Pleas.

87 the plaintiff obtained a verdict against the con- 16 Vict. c. 76, s. 17, for leave to proceed stable under the direction of the learned Judge as if personal service had been effected, and that the defendant was bound to prove he had the proprietor of the asylum was directed legal authority to turn the plaintiff out, but to be applied to produce the defendant, failed in the action against the chairman, who and in default a habeas corpus. justified under the 11 & 12 Vict. c. 44, on the This was a motion for a rule nisi, under the ground of insufficient notice of action, where- 15 & 16 Vict. c. 76, s. 17, for leave to proceed upon cross-rules had been obtained.

personal service had been effected in this Macaulay and Brewer for the plaintiff; action, which was brought on a bill of exMellor and Hayes for the defendants.

change, against a lunatic confined in an asylum. The Court said, that the rule would be made It appeared that application had been made to absolute for a new trial of the first action on Dr. Bush, the proprietor of the asylum to see the ground of misdirection, the question of the defendant, but that he refused, except on there being reasonable and probable cause not the order of his friends, whom, however, he rebeing left to the jury, but the rule would be fused to state ; and upon failing to discover discharged in the second action, the notice of them, a copy of the writ had been left with Dr. action having omitted the word "maliciously,” Bush and on the attorney, who had formerly which was necessary.

acted for the lunatic.

Paterson in support. Regina (exparte Harding and others) v. Vicar, The Court said, that the application must be

fc., of Bourn. May 29, 1854. refused, but that the course would be to inform SMALL TENEMENTS' RATING ACT.-RIGHT Dr. Bush he ought to produce the lunatic, in

OF OCCUPIERS TO VOTE AT ELECTION OP order to his being served, if it could be done CHURCHWARDENS. MANDAMUS.

without injury to his health, as otherwise there A mandamus was refused on the vicar and would have to be a habeas corpus for the pur

churchwardens of a parish, in which the 13 pose. & 14 Vict. c. 99 had been adopted, to con

Court of Common Pleas. dene a vestry and proceed to the election of Hopkins v. Tanqueray. May 26, 1854.

. churchwardens for the remainder of the ACTION ON WARRANTY. — SALE OF HORSE current year, although the officers elected had been elected by the owners, and the It appeared that the plaintiff was examining votes of the occupiers had been excluded.

on the previous day the defendant's horse, This spas a motion for a rule nisi for a man- which was for sale by auction, but on the damus on the defendants to convene a vestry defendant saying, You have nothing to and to proceed to the election of churchwardens look for, he is perfectly sound in every re. for the remainder of the current year. It ap- speci," the plaintif replied, " If you say peared that the parish had adopted the 13 & 14 80, I am satisfied,und purchased at the Vict. c. 99, in the year 1850, but that on the auction the next day when the horse was election for churchwardens the votes of the put up without warranty: Held, making owners only and not of the occupiers had been absolute a rule to set aside the verdict for admitted at the vestry held for such purpose. the plaintiff and enter a nonsuit, that the

Lush in support, on behalf of the occupiers words merely amounted to a representation, who claimed to vote, referred to ss. 1, 6, and 7 and not to a warranty. of the Act, and cited Rex v. Rector, &c., of This was a rule nisi to set aside the verdict Birmingham, 7 A. & E. 254.

for the plaintiff and to enter a nonsuit in this The Court said, that in the case cited the action, which was brought on the warranty of previous election was void, which was not the a horse sold to the plaintiff by auction. It apcase here, merely because certain persons peared on the trial before Talfourd, J., that the claimed to vote and were not allowed, and the plaintiff was examining the horse on the day rule would therefore be refused.

before the sale, and that the defendant had

BY AUCTION, REPRESENTATIONS.

Ridgway v. Cannon. May, 29, 1854.

1 Which enacts, that “the service of the writ

of summons, wherever it may be practicable, COMMON LAW PROCEDURE ACT.-LEAVE TO shall, as heretofore, he personal; but it shall be

PROCEED AS IF PERSONAL SERVICE ON lawful for the plaintiff to apply from time to time, LUNATIC.

on afidavit, to the Court out af which the writ Application had been made to the proprietor of summons issued, or to a Judge; and in case of the lunatic asylum, in which the defend- it shall appear to such Court or Judge that reaant, to an action on a bill of exchange, was sonable efforts have been made to effect perconfined, to see the defendant, but he had sonal service, and either that the writ has come refused without the consent of the friends, to the knowledge of the defendant, or that he whose residence, however, he refused to give. wilfully evades service of the same, and has not Attempts had failed to discover them, and appeared thereto, it shall be lawful for such the copy writ had been left with the pro- Court or Judge to order that the plaintiff be at prietor of the asylum, and also with the liberty to proceed as if personal service had attorney who had formerly acted for the been effected, subject to such conditions as to lunatic: A motion was refused under 15 8. the Court or Judge may seem fit.”

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ACTION FOR DAMAGES ON DETENTION OF

BUILDING MATERIALS. EXCESSIVE DA-
MAGES.

88

Superior Courts : Common Pleas.- Court of Exchequer. said, “You have nothing to look for, he is that Court, and stated to be of the value of perfectly sound in every respect," and that the 4001. plaintiff had answered, “ If you say so, I am Worsley in support. satisfied.” The following day the auctioneer The Court said, that although there might announced the horse for sale without warranty, be some circumstances which would render it and the plaintiff purchased on the faith, it was proper to remove the whole case into this contended, of the prior representation. Court, yet in respect of this particular matter,

Byles, S. L., and Finlason showed cause which only involved the question of the exeagainst the rule; Edwin James and Lush, in cution of ihe judgment of the County Court, support, were not called on.

that Court alone had authority to decide, and » The Court said, that the words merely besides an interpleader suit could not be reamounted to a representation before the sale, moved by certiorari. The motion would thereand not to a warranty. The horse was sold by fore be refused, and also a motion thereupon auction without warranty, and the rule would made for a prohibition against the bailiff conbe absolute to enter a nonsuit.

tinuing in possession of the goods seized. Court of Erchequer.

Grey and another v. Willicombe. May 27, Amor v. Masters. May 26, 1854.

1854. ACTION IN TROVER.DISTRESS FOR POOR

RATES.-NOTICE OF ACTION. In an action to recover possession of a watch taken by the collector of poor-rates under a

The plaintiffs had contracted to erect a hotdistress warrant for rates in arrear, it ap

house for S., but upon their having dispeared that no notice of action had been

corered he had executed un assignment to given, and that the plaintiff only let a por

the defendant for the benefit of his credit. tion of his house, and would be liable under

ors, they demolished the building and col. the local act as occupier: A rule was made

lected the materials for remoral, but had absolute to set aside the rerdict for the

been prevented doing so by the defendant, plaintiff and for a new trial.

and they consequently applied to their atThis was a rule nisi by leave reserved

torney, and incurred an expense of 131. granted on April 22 last, to enter the verdict

odd: Held, that an action was maintainfor the defendant in this action, which was

able to recover damages from the defendant brought to recover possession of a watch taken

for such detention. by the defendant as collector of poor-rates of

This was a rule nisi for a new trial granted the parish of Marylebone under a distress war- on April 19 last of this action, which was rant for the arrears of poor-rates for a year and brought to recover damages from the defendant a half. The defendant pleaded (inter alia) that for having seized and detained certain goods behe was entitled to notice of action, which had longing to the plaintiffs which they were about not been given. The rule nisi was also granted to remove, and preventing their removal until for a new trial on the ground that the plaintiff after great delay and an expense of nearly 141. had only let a portion of his house, and not It appeared that the plaintiffs had contracted to the whole, and would therefore be liable under erect a hot-house for one Sweet, at Tunbridge the local act as occupier. On the trial at the Wells, but that upon their having discovered Sittings in Middlesex after Hilary Terın last, he had executed an assignment of his property the plaintiff obtained a verdict.

to the defendant for the benefit of his creditors, Pigott showed cause against the rule. they demolished the building and had collected

The Court (without calling on Watson and the materials for removal, when the defendant, Petersdorf in support) said, there must be a who was one of Sweet's trustees, had claimed new trial on the matters contained in the affi- the goods under the deed, and had prevented davits.

their removal until the plaintiff had obtained M'Kellar v. Summers, jun.; exparte Summers,

the assistance of the attorney, at an expense sen. May 27, 1854.

of 131. odd, and on the trial before Pollock, L, C. B., at the last Sitting at Westminster, they obtained a verdict, with 121. damages.

The rule had been refused on the ground A motion was refused for a certiorari to re that the bill of sale was admitted in evimove an interpleader suit in a County dence without calling the attesting witness, Court to try the right to certain property but was granted on the other grounds that seized under an execution, although stated no trespass in law had been proved, that to be of the value of 4001., and a prohi- the goods were not the plaintiff's property, and bition was also refused on the bailif" that the damages were excessive. against continuing in possession of the Bovili and Wise showed cause; Bramwell goods.

and Rose in support. This was a motion for a certiorari to re- The Court said, that the action was mainmove an interpleader suit in the Rochester tainable, but that there must be a new trial on County Court to try the right of property in the ground of excessive damages, unless Mr. certain bricks seized under an execution out of Bovill consented to reduce them to 41., and the

case stood over accordingly.

a

COUNTY COURT.-INTERPLEADER.CER

TIORARI.PROHIBITION,

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JUNE 10, 1854.

IN THE

REJECTION OF THE TRUST CLAUSES from that view, and I shall endeavour to show

to your lordships that so far from its being

in any degree a complement to those measures, SOUTH SEA COMPANY'S BILL. the principle which you are asked to affirm in

this Bill is antagonistic to those measures-it

is a Bill to enable the South Sea Company, a THE Select Committee of the House of Lords, after hearing the evidence and the Seas and encouraging the fisheries, to under

company sanctioned for trading in the South arguments of counsel on both sides, met on take the management of private trusts--I shall Saturday last, the 3rd instant ; and, after show to your lordships that this is a measure deliberating about an hour and a half, the introduced as a private Bill, in which you are solicitors and agents were called in and in- asked to decide several most important prinformed that the Committee had determined ciples, entirely at variance with the decisions of that the South Sea Bill should proceed for your lordships' House, sitting as a judicial the purpose of winding up the company, but Legislature. You are asked, Ist, to establish

body, and also with the proceedings of the that all the clauses relating to the administra- the legality of trading interests, and making a tion of private trusts should be struck out. profit out of that trade ; 2ndly, you are asked

The Bill of the Executor and Trustee to establish the principle of limited liability of Society was rejected altogether.

trustees, and to absolve them from all perWe have several times briefly stated our sonal responsibility; 3rdly, you are asked objections to these joint-stock projects, but, to sanction an unlimited capacity in a corconsidering the importance of the decision poration to take land, and hold and manage at which the Select Committee has arrived, contradict a principle deliberately sanctioned

land, to any amount; 4thly, you are asked to and in order fully to record the various by the Legislature about 20 years ago, when reasons against the proposed alteration of they decided in the case of municipal corporathe Law, and if possible to prevent the tions who were possessed of large charity reviral of such measures in any future Ses- estates, in trust, that it was not advisable to sion, we deemed it expedient to make the allow them to continue in the hands of those following extracts from the able speech of corporations, but to appoint individual trusMr. Selwyn, on the 29th May, in support this on behalf of a body who have avowed

tees; 5thly, your lordships are asked to do of the petitions against the Bill by the In- before your lordships the intention of supercorporated Law Society, and numerous in- seding as far as possible, the established tridividual solicitors both in the metropolis bunals of the country.

“My lords, I shall hope to show to your At the close of the evidence adduced by lordships that the reasons upon which this the promoters of the Bill :

House has been asked to sanction these differ

ent matters are insufficient, and that they Mr. Selwyn said, "It now becomes my duty are not supported by any evidence of weight; to address to your lordships some observa- and also I shall endeavour to show your lord. tions, on behalf of the Incorporated Law So- ships that even if the evils which have been ciety, the petitioners whom I represent, in op- suggested do in fact exist, this measure is not position to this measure. The measure has a measure calculated to remedy those evils. I been described by my learned friend, Mr. Rolt, shall go further, and I shall endeavour to show as being a complement of those measures your lordships, that even if this Bill could which have been passed for the improvement of remedy all or any of those evils, still it would the Court of Chancery. I beg leave to differ introduce new and additional evils of much

VOL. XLVIII. No. 1,370.

and the country.

G

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