Notes of the Week.-Superior Courts: Lord Chancellor.-Lords Justices.

C. J. Tylee, Romsey

G. Atkinson, Bedford-row

Added to the List pursuant to Judge's Orders.

THIS day, the 12th of August, has been an-Russia, we may expect that it will not re-asnounced by a Supplement in the London Ga-semble till next February.

RECENT DECISIONS IN THE SUPERIOR COURTS.

290

Superior Courts: Lords Justices.-Rolls.

tees in the stead of one who had died and of another who was of unsound mind, but not so declared by commission. The Vice-Chancellor Kindersley had, in In re Good Intent Benefit Society, reported ante, p. 271, declined to make the order on the ground that the petition should have been presented to this Court in lunacy.

now sought might be obtained by an order of revivor under the 15 & 16 Vict. c. 86, s. 52,1 and in future that course must be adopted, but that as the plaintiff might have been misled by the decision of the Dean, &c., of Ely v. Edwards, 22 Law J., N. S., Ch., 629, the order would be made in the present case.

Hallett and Cotton for the several parties. The Lords Justices, without deciding whe-Shaw v. Hardingham and others. July 22, 1854. ther the Vice-Chancellor had no jurisdiction, EQUITY JURISDICTION IMPROVEMENT ACT. made the order as prayed.

Master of the Rolls.

Attorney-General v. Pretyman. Aug. 4, 1854.

CHARITY LEASE.-IMPROVED RENT.-OUT-
LAY OF LESSEE.

Upon the expiration of a charity lease, an
increased rent was offered by another
person, and it appeared that the existing
lessee had expended a large sum in im-
provements on the faith of the lease being
renewed: Held, that he was entitled to have
the option of continuing at the higher rent,
or of having an allowance made for his
outlay.

THIS was a petition on behalf of the Master of the Mere Hospital, Lincoln, for leave to grant a lease of a farm belonging to the charity to a Mr. Harrison. It appeared that the recent lessee had paid a rent of 800l. a year, but had laid out about 2,000l. in improvements on the faith of obtaining a renewal of his lease. Mr. Harrison was willing to give a rent of 1,000l. a year.

R. Palmer and Shapter in support; Wickens for the present lessee; Terrell for the AttorneyGeneral.

The Master of the Rolls said, that the present lessee must be allowed the option of taking the farm at the increased rent, and that if he did not continue lessee he must have compensation for his outlay.

Edwardes v. Batley and others. July 18, 1854.
EQUITY JURISDICTION IMPROVEMENT ACT.

-SALE BY EXECUTORS IN FORECLOSURE
CLAIM.

In a foreclosure claim a motion was granted
under the 15 and 16 Vict. c. 86, s. 55, for
a decree for the sale of real estate by the
executors of the mortgagor's will, with a
power of sale on the death of a tenant for
life, and held that the persons entitled
upon the determination of the life estate
were sufficiently represented by the exe-
cutors under s. 42, rule 9.

THIS was a motion in this claim for foreclosure of a mortgage, under the 15 & 16 Vict. c. 86, s. 55,2 for a decree for sale on the defendants, who were the executors under the mortgagor's will. There was a power of sale upon the death of the tenant for life, who was made a defendant.

W. Hislop Clarke, in support, referred to s. 42, rule 9, which enacts, that "in all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the trust, in the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persons beneficially interested in such personal estate;

1 Which enacts that "upon any suit in the said Court becoming abated by death, marriage, or otherwise, or defective by reason of some change or transmission of interest or liability, it shall not be necessary to exhibit any obtain the usual order to revive such suit, or bill of revivor or supplemental bill in order to the usual or necessary decree or order to carry -ORDER OF REVIVOR. ADMISSION OF on the proceedings; but an order to the effect ASSETS BY REPRESENTATIVE OR AC- of the usual order to revive, or of the usual COUNT. supplemental decree may be obtained as of course upon an allegation of the abatement_of such suit, or of the same having become defective, and of the change or transmission of interest or liability."

Held, that upon the death, in an administration suit by an executor and trustee against the co-executor and the parties beneficially interested, of such defendant co-executor intestate, the order to revive under the 15 & 2 Which enacts, that "if after a suit shall 16 Vict. c. 86, s. 52, against his personal have been instituted in the said Court, in relarepresentative, will direct the admission of tion to any real estate, it shall appear to the assets, or in default an account. IN this administration suit by an executor and trustee against the co-executor and the parties beneficially interested, it appeared that a supplemental bill had been filed upon the death of the defendant intestate, against his personal representative, seeking the admission of assets, or in default an account.

The Master of the Rolls said, that the object

Court that it will be necessary or expedient that the said real estate, or any part thereof, should be sold for the purposes of such suit, it shall be lawful for the said Court to direct the same to be sold at any time after the institution thereof, and such sale shall be as valid to all intents and purposes, as if directed to be made by a decree, or decretal order, on the hearing of such cause.'

Superior Courts: V. C. Kindersley.-V. C. Stuart.-V. C. Wood.

and in such cases it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit; but the Court may, upon consideration of the matter, on the hearing, if it shall so think fit, order such persons, or any of them, to be made parties."

The Master of the Rolls held that the parties entitled upon the determination of the tenancy for life were sufficiently represented by the executors, and made the decree as sought.

Vice-Chancellor Kindersley. English v. Campbell. July 29, 1854.

SUBSTITUTED SERVICE OF SUBPOENA FOR

COSTS.

Vice-Chancellor Stuart.

Atlee v. Hooke. June 9, 1854.

291

PAYMENT OF LEGACY TO WIFE OF CONVICT.

-CONSENT OF CROWN.

A sum of money had been carried to the separate account of a married woman in an administration suit: Held, that she was entitled to be paid over the same on her receipt where her husband had been transported for life before the testatrix, under whose will she took, died, without the Attorney-General being served.

THE testatrix in this administration suit, by her will appointed the defendant, Mrs. Petley, one of her residuary legatees, and a sum of

An order was made, that service of the sub-cash had been carried in the cause to her ac

pæna for costs, at the London address of the defendant and on his solicitors, should be deemed good, where it appeared the answer was sworn at Carlisle, and that communications left at such London address were duly forwarded to the defendant. THIS was a motion for an order, that service of the subpoena for costs in this suit at the address given by the defendant in London, and on his solicitors, might be deemed good service. It appeared that the answer had been sworn at Carlisle, and that communications left at the London address were duly forwarded to the defendant.

Freeling in support, referred to Danford v. Cameron, 8 Hare, 329, in which Hunter v. 6 Sim. 429, is cited.

The Vice-Chancellor, upon the authority of the case cited, made the order accordingly.

count. This petition was now presented for
payment of the amount to her upon her re-
life before the death of the testatrix.
ceipt, her husband having been transported for

Chichester, in support, cited Newsome v.
Bowyer, 3 P. Wms. 37.

The Vice-Chancellor made the order, and without service on the Attorney-General.

Kane v. Reynolds.

June 10, 1854.

CROWN.-RIGHT TO COSTS IN EQUITY. Held, that the rule at law, that the Crown neither pays nor receives costs, does not prevail in equity.

Upon the Solicitor of Treasury, therefore, taking possession of the personal estate of an intestate under letters of administration which were afterwards revoked and granted to the next of kin, held that he was not entitled to deduct the amount of his costs of a suit by the next of kin to recover the property. IT appeared that upon the death of Mr. Thomas Kane, intestate, letters of administration were obtained by the Solicitor of the Treasury on behalf of the Crown, and he had received certain sums of money, part of the estate. The letters had afterwards been revoked and granted in July, 1853, to the plaintiff who now filed this claim for an account, the Solicitor of the Treasury. and for payment over of the sums received by

for the Solicitor of the Treasury, claimed to Bacon and Selwyn for the plaintiff; Wickens deduct the amount of his costs; Sheffield for other parties.

that the Crown neither pays nor receives costs The Vice-Chancellor said, that the rule at law did not exist in equity; Attorney-General v. Ashburnham, 1 Sim. & S. 394-7, and that the plaintiff was entitled to a decree for payment

without such deduction.

Vice-Chancellor Wood.
Man v. Fuller. June 5, 1854.
LEGACY, WHETHER ADDITIONAL.-MISDE-

SCRIPTION.

A testator gave "the interest of two thousand to G. S., and at his death to his children,"

! And se: Moggridge v. Thackwell, 7 Ves. 88.

292

66

V. C. Wood.

Shebbeare in support.

The Vice-Chancellor said, that as no authority was shown to the son-in-law to act as the defendant's agent with respect to the property, and his possession might be adverse, the motion must be refused.

Superior Courts: and in a subsequent part of the will the sum of 1,000l. "in addition to one thousand before mentioned." There were other legacies of pounds sterling," and no sums of stock: Held, that G. S. was entitled to two thousand pounds sterling for life, and on his death the capital to go among his children, and to the one thousand pounds absolutely.

A QUESTION arose in this suit as to the construction of the will of a testator, whereby he gave "the interest of two thousand to Geo. Sergeant, and at his death to his children," and after giving two legacies of one thousand pounds, and one of two thousand pounds to certain parties named he gave the sum of one thousand pounds, to George Sergeant "in addition to one thousand before mentioned."

Rolt and Baggallay for the plaintiff; Eddis for the executor; C. M. Elderton, Messiter, Fane, J. Sidney Smith, H. Cadman Jones, and Reilly for other parties.

The Vice-Chancellor said, that as all the previous legacies were of pounds sterling, and there was no stock, the gift of the "2,000l." clearly meant pounds sterling, and gave an absolute gift of the capital to the children on their father's death. The gift of the additional legacy of 1,000l., referring to the former as 1,000l., did not raise an inference that the testator only intended to give 2,000l., nor did it cut down the former sum: Gordon v. Hoffmann, 7 Sim. 29, and he was therefore entitled to the 2,000l. for life, and to the other absolutely.

Bone v. Augier. July 6, 1854.
SUIT TO ENFORCE EQUITABLE MORTGAGE.

-SUBSTITUTED SERVICE OF COPY BILL
ON PERSON IN POSSESSION.

Substituted service under the 15 & 16 Vict. c. 86, s. 5, of the copy bill to enforce an equitable mortgage, on the defendant's sonin-law who was in possession-the defendant being in New South Wales-was refused, where it was not shown he acted as the defendant's agent in respect of the property and his possession might be adverse. THIS was a motion for an order under the 15 & 16 Vict. c. 86, s. 5,1 to substitute service of the copy bill to enforce an equitable mortgage on certain property belonging to the defendant, who was in New South Wales, upon his son-in-law, who was in possession.

Which enacts, that "the service upon any defendant of a printed copy of a bill of complaint, or of a claim in the said Court, shall be effected in the same manner as service of a writ of subpoena to appear to and answer a bill of complaint is now effected, save only that it shall not be necessary to produce the original bill or claim, which will be on the files of the Court; provided that the Court shall be at liberty to direct substituted service of such printed bill or claim, in such manner and in such cases as it shall think fit."

Hemming v. East. July 12, 1854.

EVIDENCE.-AFFIDAVIT FILED AFTER CER
TIFICATE OF CHIEF CLERK.

The Chief Clerk certified in favour of a deed
of assignment to the defendant, and that
he was entitled to set-off the amount of a
debt due from the plaintiffs, and thereby
assigned, against the purchase-money of
certain properly bought by him: Held,
that an affidavit afterwards filed on behalf
of the plaintiffs, showing the assignment to
be a mortgage and discharged, could not be
received on further consideration upon the
certificate, but with leave to counsel to state
the facts, in order to an inquiry if neces-
sary.

In this suit which now came on for further consideration upon the certificate of the Chief Clerk finding in favour of a deed of assignment to the defendant, and that he was entitled to set-off the amount of a debt due from the plaintiffs, and thereby assigned, against the purchase money of certain property bought by him, an affidavit was filed on behalf of the plaintiffs, showing that the assignment amounted to a mortgage and had been discharged.

The Vice-Chancellor said, that the affidavit was filed too late and could not be admitted, but that the facts might be stated by counsel, in order that an inquiry might be directed, if

Clarke v. Gill. July 24, 1854. EXAMINATION OF WITNESSES IN LONDON. -RIGHT OF MEDICAL MAN TO COMPENSATION FOR LOSS OF TIME.

Held, that a medical man whom it was proposed to examine before the examiner, was entitled to compensation for loss of time, although he resided in Bryanstone Square and within the bills of mortality.

On this motion for an injunction, an order had been made for the examination of witnesses, but it appeared that a medical gentleman, whom it was proposed to examine, refused to be sworn until payment was made as compensation for his loss of time.

Roxburgh now applied for the direction of the Court, and stated the witness resided in Bryanstone Square and within the bills of mortality, referring to the 5 Eliz. c. 9, s. 12.

The Vice-Chancellor said, that the witness was entitled to receive compensation before being sworn.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, AUGUST 19, 1854.

RESULTS OF THE SESSION OF 1854.])

tlement of the Poor, in order more effectually to promote the freedom of Labour in unison with the interests of Capital;—4th, Amendments in the Laws relating to the representation of the People, together with Measures for preventing Bribery and Corrupt Practices at Elections.

On closing the Session last Saturday, her Majesty said :-"I rejoice to perceive that Amendments in the Administ the Law have contiattentio

In the first place it may not be uninteresting briefly to advert to the record of her ACCORDING to custom, we proceed to Majesty's Speech on opening the late Sessum up the results of the Session of Par- sion of Parliament, particularly in regard liament which closed on the 12th instant. to the measures which were then intended In the first great outbreak of Law Reform, to be submitted to Parliament. They were, twenty-four years ago, this work was com 1st, the Bills for transferring from the Ecmenced. It has ever since been our duty clesiastical to the Civil Courts the cogto bring under the notice of the Profession, nizance of Testamentary and of Matrimoweek by week, the projects which have nial Causes;-2nd, for giving increased been devised or completed, not only by the efficiency to the Superior Courts of Law; distinguished personage who led the way, 3rd, the Enactments relating to the Setbut the numerous corps which followed in his train. At that time the only periodical devoted to legal subjects was the Law Magazine, which was edited by a young member of the Bar of great ability, and published quarterly. It appeared to the originators of the Legal Observer that the time had arrived for establishing a medium of communication between Attorneys and Solicitors throughout the kingdom; but the work, though chiefly devoted to their interests, uration of included within its scope a review of all ...nued to occupy your matters, whether parliamentary or judicis , and I anticipate great benefit in any respect affecting the D , from the improvements you have made in large. It was especially designed to call Courts of Law." After observing on the rotession at the Forms of Procedure in the Superior immediate attention to all projected altera-removal of the last legislative restriction tions in the Law and Practice, and to upon the use of foreign vessels, her Majesty afford a channel of communication for con- says:-" You have also revised and consoveying the views of the members of the lidated the whole Statute Law relating to Profession to their brethren, and discuss- Merchant Shipping." The Speech also ing the merits of the various proposed states that a willing assent was given to changes which rapidly succeeded each the measure for the prevention of Bribery other. We have again, therefore, to execute our a hope was expressed, "that it might and of Corrupt Practices at Elections, and annual task, and recall to the attention of prove effectual in the correction of an evil our readers, in a collective form, the seve- which, if unchecked, threatened to fix a ral amendments or alterations of the Law deep stain upon our representative system." which have taken place during the last The Act for the better government of the seven months, the details of which have University of Oxford, and the improvement been laid seriatim before them, and from of its constitution, was also noticed, time to time discussed in these pages. "trusting that it will tend greatly to increase the No. 1,380.

VOL. XLVIII.

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