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Superior Courts: Rolls-V, C. Kindersley.--. C, Stuart. within a week, or in default the bill should Wice-Chancellor Kindersley. stand dismissed with costs. It appeared that the plaintiff's solicitor, although he had duly

Price v. Bury. Dec. 3, 1853. set down the cause for hearing, had omitted to EQUITABLE MORTGAGE OF serve the subpoena within the time limited, in PORECLOSURE.-COSTS OP SURRENDER. the belief it would be sufficient to do so under

Held, in a suit to foreclose, that the mortgaOrder 16 of 8 May, 1845, art. 46,' ten days before Michaelmas Term, whereupon a warrant to

gor was liable to pay the costs of a sur

render to an equitable mortgagee of copy. tax had been taken out. The bill was filed in

holds, by deposit of copies of Court rolls, 1845.

&c. Roupell and Drewry in support of the motion; R. Palmer, Ellis, and Cole, contrà.

In this suit to foreclose an equitable mortThe Master of the Rolls said, that no case gage of certain copyhold property by deposit had been made out for the indulgence of the of copies of the Court rolls

, &c., a question Court, and besides the motion should have arose as to the payment of the costs of surren

der to the mortgagee. been to obtain leave to restore the bill. The motion would therefore be refused, with costs.

Glasse, De Gex, and W. W. Cooper for the

several parties. Lady Jervoise v. Jervoise and others. Dec. 5, woull, in the case of freehold, have to tender to

The Vice-Chancellor said, that the mortgagee 1853. WILL.-CONSTRUCTION.-GIFT TO WIFE OF costs of which the mortgagee would have to

the mortgagor a conveyance for execution, the JEWELS FOR LIFE.--PARAPHERNALIA.- bear, but that in case of copyholds, the mort

gagor had to take the initiative and to sur. A teslator gave his jewels to his wife, the render his estate to the lord, in order to pass

plaintif, for life, and afterwards they were the same to the mortgagee, and therefore the to be heir-looms. Ii appeared certain mortgagor would have to bear the costs of such jewels had been presented to the plaintif surrender. by her aunt, and the testator had also given her others in his lifetime : Held, that these

Vice-Chancellor Stuart. were not included in the will, but were paraphernalia.

Thomson v. Partridge. Nov. 25, 1853. Held, also, that as the representatives of the ENLARGING TIME FOR CLOSING EVIDENCE.

plaintiff could not recover, she had properly filed her claim as to the construction of the

The time was enlarged for closing the evidence will, and the costs were directed to be paid on the defendant's application, where the out of the estate.

plaintiff, who had obtained previous enThis was a claim for the opinion of the

largements, had not filed his affidavits until Court on the construction of the will of the

two days before the time expired. late Rev. Sir Samuel C. Jervoise, whereby he

Malins and Piggott appeared in support of directed all his “jewels” should be held in this motion to enlarge the time for closing the trust for the use of his wife, the plaintiff, for evidence, on the ground the plaintiff had not life, and afterwards should be treated and

filed his affidavits until Nov. 1 last, and that

go as heir-looms in his family. It appeared that the defendant had been unable to obtain office the plaintiff was presented by her aunt with copies until after Nov. 3, the period fixed for certain pearl ornaments, and had had them re- closing the evidence, under an order of enlargeset at her own expense, and that the testator ment obtained by the plaintiff. had also given her a pair of diamond bracelets.

Selwyn, contrà. The question was, whether these formed part

The Vice-Chancellor said, that as the plaintiff of the plaintiff's paraphernalia, or were in- had obtained the prescribed period of nine cluded in the will.

weeks after issue was joined for closing the Glasse and T. H. Hall for the plaintiff; evidence,' to be enlarged to nearly twice that Haynes for the trustees.

time, it was only fair the defendant should The Master of the Rolls said, the plaintiff should have a similar indulgence, and leave was entitled to retain the ornaments in ques- would therefore be granted to the defendant to tion, as they clearly formed part of her para- file his affidavits until Dec. 10, and the evidence phernalia; and that as it was necessary the to close on the 21st Dec. plaintiff should make claim thereto during her lifetime, and her representatives could not hare Exparte Lines. Dec. 5, 1853. made it afterwards, the costs of all parties would come out of the estate.


COMMIS " Which directs, that “a subpæna to hear judgment is not to be returnable at any time A petition for the payment of arrears of diless than one month from the teste of the writ; vidends due on stock transferred to the and it is to be served at least 10 days before Commissioners for the Reduction of the the return thereof."

· Under the 32nd Order of 7th Aug. 1852.






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

111 National Debt, was directed to stand over tuted, but no proceedings had been taken after in order to make inquiries.

notice of decree.

Glasse in support. G. M. Giffard appeared in support of this petition for payment of the arrears of dividends

Shapter, contrà, citing Bear v. Smith, 5 De

G. & S. 92. due on certain 34 per cent. annuities, purchased by the petitioner, and transferred, in tor did not deny having assets nor dispute the

The Vice-Chancellor said, that as the executhe name of Mr. William Frederick Cannon, debt, the motion could not be granted unless of Kirton, Hertfordshire, which was alleged to be a fictitious name, assumed in order to pre

un payment of the costs at law and of the

motion. vent the petitioner's wife from being aware of the transaction. It appeared the petitioner had received one dividend on part of the fund, Lord Ricers v. For and others. Dec. 3, 1853. which was purchased in two different sums, WILL. - POWER TO ERECT OUTBUILDINGS. but had received nothing in respect of the - ERECTION OF LABOURERS' COTTAGES. other portion. The whole had been transferred to the Commissioners for the Reduction of the National Debt under the 56 Geo, 3, c. 60.

Under a will, the trustees were empowered to Wickens for the Commissioners, contrà, on

opply part of the proceeds of sales and exthe ground further inquiry should be directed.

changes in the erection of farm-houses and The Vice-Chancellor accordingly directed the

outbuildings : Held, on motion for a decree, petition to stand over for the purpose of insti

that the trustees might build cottages for tuting inquiries, whether there was any person

labourers which were absolutely indispensof the name in question, and also as to the

able to the cultivation of the farms. circumstances under which the one payment

This was a motion for a decree under the had been made.

15 & 16 Vict. c. 86, s. 15, in this suit, which

was instituted for a declaration to apply part of Vice-Chancellor Wood.

the proceeds of certain sales and exchanges

effected under the powers of the will of the Downing v. Picken. Nov. 6, 1853. late Lord Rivers, dated March, 1823, in buildADMINISTRATION

ing 26 cottages for labourers and servants to

be employed on the farms near the farm build. AMONG CREDITORS. - PAYMENT TO SOLI

ings. It appeared that the trustees were em

powered to apply the proceeds of timber cut by An order was made for the insertion, in an them, and of sales and exchanges effected with order for distribution of a fund among the consent of the plaintiff

, the tenant for life, creditors, of a direction for payment to the in paying off incumbrances, debts, and legacies, solicitor of the respective creditors, where or in the improvement of the manors and here. the fund was under 10l., on the written ditaments by the erection of farm-houses and consent of the creditors, verified by affi- outbuildings, or by draining or planting, or davit.

otherwise ; and that the farms were at a disThis was a motion in this administration tance from any village, and could not be prosuit for the insertion, in an order on further perly cultivated for want of cottages for ladirections to apportion a fund in Court among bourers. It was also alleged that the value of creditors, of a direction that where the amount the property would be increased to the amount was less than 101. it might be paid to the so-proposed to be thus expended. licitors of the respective creditors.

Giffard ir support; Hobhouse for the trusLewin appeared for the several parties, in tees. support.

The Vice-Chancellor made the declaration as The Vice-Chancellor said, the order could prayed. not be made without the written consent of the several creditors, verified by affidavit.

Boyse v. Rossborough and wife, Nov. 4;

Dec. 5, 1853.
Cole v. Burgess. Nov. 9, 1853.

Held, that the Court of Chancery has juris-

diction in a suit to establish a will against Where an executor did not deny assets nor the heir-at-law, although there is only a

dispute the debt, an injunction was refused simple devise of land and no trust; and a to restrain an action at law by a creditor, demurrer to a bill was accordingly overwhich was brought before the creditor's ruled. suit had been instituted, unless on payment

The testator, by his will, gave and devised of the costs at law and of the motion.

all and singular his real and personal estate to This was a motion on behalf of an executor, his wife (the plaintiff), her heirs, executors, ad. for an injunction to restrain an action at law, ministrators, and assigns, to and for her and by a creditor, a decree having been obtained in their own absolute use and benefit. It apthis creditor's suit. It appeared the action peared that part of the property was situate in had been brought before this suit was insti- | England and part in Ireland, and that the de






Superior Courts : v.C. eod.- Queen's Bench. fendants, the testator's heiress-at-law, and Ler This was a motion for the appointment of husband, had instituted a suit in Ireland to one out of two solicitors at Maidstone to exobtain a declaration that the will was void on amine certain witnesses who were resident at a the ground the testator was of unsound mind, distance about 20 miles from London. and was under the undue influence of the

Webb in support; Howe, contrà, on the plaintiff, and that on an issue being directed ground the application should be made at the will had been declared invalid, but an ap- Chambers, and that some of the witnesses had peal was now pending to the House of Lords been examined in London before the Examiner. from decision of the Irish Court refusing a The Vice-Chancellor said, it was not comnew trial. It also appeared that the defendants pulsory to make the application at Chambers, had taken no steps in this country in respect of although it might have been made there, and the real estates here, which were in the posses- that as the former practice in respect of witsion of the plaintiff, and this suit was therefore nesses resident more than 20 miles from instituted to have the will established as against London was not altered, the order would be the defendants, and for an issue if deemed ne- made, but that, under the special circumstances cessary. The bill also alleged that the state- of the case, a barrister, to be agreed on between ments on which the decision had been obtained the parties, must be appointed, -the costs to in Ireland were untrue, and the refusal of a be costs in the cause. new trial erroneous.

Russell and Younge in support of a general demurrer for want of equity, there being a

Court of Queen's Bench. sinple devise and no trusts to execute. Regina v. Inhabitants of Llanfaethly. Nov. Solicitor-General, Rolt, and Cairns contrà.

19, 1853. Cur. ad, vult. The Vice-Chancellor said, the jurisdiction of MENT OF RATE.-PRODUCTION OF RATEthis Court to decide on the validity of wills, BOOKS.-SECONDARY EVIDENCE. seemed to have arisen before the passing of the 32 Hen. 8, c. 1, the Statute of Wills, and it

On the hearing at the Sessions in a pauper appeared on reference to early decrees so far

removal case, it appeared a subpæna duces back as 1573, that the Court had taken on it

tecum had been served on the parish officers

to produce the rate-books to show the pay. self, by inquiry before the Master, to determine such questions, but shortly before the Statute

ment by the pauper of a rate, and on their of Frauds, 29 Car. 2, c. 3, a reference was sent

not attending, secondary evidence of such to a Court of Law, the cause still being retained

payment was tendered : Held, that it had in this Court. The origin of the jurisdiction

been properly rejected, as the persons subin establishing wills against the heir-at-law was,

pænaed were not parties to the case. however, involved in great obscurity, but it ap

In this case, from the Anglesea Sessions, it peared to have been acquired gradually and was alleged that a pauper named Hughes had silently, and it was difficult to see how such rated a tenement and paid a rate of 2s. 6d. in jurisdiction could have been assumed, merely respect thereof, but on the hearing the fact of because there were trusts to execute.

But such payment was proved, but the rate-books whether there were a trust or no trust, could were not produced to show the payment was make no difference with respect to the heir, of a lawful rate. A subpæna duces tecum had who was always entitled to an issue, and when been served on the parish officers to produce the will was found valid thereunder, this Court the books, but it was stated to have been served would establish it. The demurrer would there on the wrong party. Secondary evidence of fore be overruled, but without costs - the de- their contents was thereupon rejected, and an fendants to have a month's time in which to order for his removal was made. put in their answer.'

M. Lloyd in support of the order ; Welsby, contrà, citing Rex v. Inhabitants of Coppull, 2

East, 25.
Read v. Prest. Dec. 5, 1853.

The Court said, that in the case cited the persons declining to produce were parties to

the case, which was not so here, and the reHeld, that the former practice as to the ap- medy was against them for disobeying the

pointment of an examiner still exists where subpæna, and the evidence had been properly
the witnesses are resident more than 20 rejected. The order of Sessions was therefore
miles from London, and an order was made confirmed.
on motion for the appointment of a barris-
ter to take such examination, although it Regina v. Mayor, &c. of Manchester. Nov.
appeared some of the witnesses had been

19, 1853.
already examined in London before the ex- POOR. — LIABILITY OP GASWORKS TO BE

aminer. The application may be made to the Court as By the 14 & 15 Vict. c. cxix. s. 138, continuwell as at Chambers.

ing the 11 Geo. 4, and 1 Wm. 4, C.

xlvii., s. 107, certain gasworks, &c., were ' An immediate issue was then tendered by exempted from poor-rate so long as the the plaintiff, but was rejected.

property was held in trust for the town





Superior Courts : Queen's Bench.

113 ship of Manchester, and by s. 13, power 5 & 6 Wm. 4, c. 76, s. 60, for refusing to dewas given to apply a portion of the liver up certain accounts, &c., on his removal profits in the reduction of the water from the office of town clerk, on the ground of rates, under the 10 & 11 Vics. c. cciii. : the arrest having taken place on a Sunday (reHeld, that the property, including a part ported ante, p. 15). It appeared the prisoner purchased after the 6 & 7 Vict. c. xvii, was, however, detained under another warrant which transferred the power of the former issued by the Town Council as Commissioners Commissioners to the defendants, was ex- of Paving under a Local Act, and on Nov. 4 a empt from poor-rate, although other town-ca. sa. at the suit of a creditor was lodged, ships in the neighbourhood had been incor- under which the prisoner was now detained, porated with the town and contributed to and this rule had therefore been obtained for the expenses, but received no benefit from his discharge. the profits of the works.

Pashley for the Town Council, Griffiths for By the 32 Geo. 3, c. lxix., Commissioners the creditor, showed cause. were appointed for lighting the township of Gray in support, citing Barratt v. Price, 2 Manchester, with power to levy rates for the M. & Scott, 634 ; 9 Bing. 566; 1 Dowl. P. C. purpose on the inhabitants, and by the 9 Geo. 725. 4, c. cxvii., s. 49, the profits to be derived

The Court' said, that, although the prisoner from the gas-works were to be applied to was entitled to be discharged so far as the dethe improvement of the town of Manchester. tainer of the Town Council was concerned, who The works, by the 11 Geo. 4, and i Wm. 4, were substantially the same parties obtaining 6. xlvii., s. 107, were exempted from the the illegal arrest, and could not take advantage poor-rate, so long as the property was so held of their own wrong, he was not entitled to be in trust, and this exemption was continued discharged in respect of the detainer at the suit by the 14 & 15 Vict. c. cxix., 8. 138, which Act of a private creditor, and the rule must be disempowered the enlarging of the works, and by charged, but without costs. 8. 13, empowered the application of a portion of the profits in reduction of the water-rates levied Stephenson v. Rayne. Nov. 3, 23, 1853. under the 10 & 11 Vict. c. cciii. It appeared COUNTY COURT.-PLAINT BY CLERK OF PAthat the townships in the neighbourhood were ROCHIAL CHAPELRY.-TITLE. JURISincorporated in October, 1838, by charter in pur- DICTION. suance of the 7 Wm. 4, and i Vict. c. 78, with

On the trial of a plaint in a County Court by the town of Manchester, and contributed to the expenses, but the profits were only expended

the clerk of a parochial chapelry, to recover in improving the town. The defendants, to

from an inhabitant householder the amount whom the powers of the Commissioners were

of his wages, an objection was taken as to transferred by the 6 & 7 Vict. c. xvii. had been

jurisdiction, under the 9 & 10 Vict. c. 95, rated to the poor in respect of the lands and

s. 58the plaintiff's title to the office, and buildings occupied as such gas-works, part of

to the payment in question being disputed :

A rule was made absolute for a prohibition which was purchased after the passing of the

against the further proceeding in the plaint, 6 & 7 Vict. c. xvii., whereupon this appeal was presented.

and an application was refused for the de

fendant to declare in prohibition. Pashley and Wheeler in support of the rate, on the ground the townships derived no benefit

This was a rule nisi for a prohibition on the from the profits of the works; Hugh Hill and Judge of the Durham County Court, from Monk, contrà.

further proceeding in this plaint, which was The Court said, that the exemption still pre- brought by the clerk of the parochial chapelry vailed in respect of the whole property held in trust for the township, although it might ope- 18.8d., his wages for five years, at the rate of

ant, an inhabitant householder, the sum of rate very unjustly on the townships, and the appeal was therefore allowed.

4d. per annum from each inhabitant householder, and payable at Easter. On the trial

an objection was taken, that the Court had not Regina v. Eggington. Nov. 21, 1853. jurisdiction under the 9 & 10 Vict. c. 95, s. 58,' ARREST. -DETAINER

as the plaintiff's title to the office and to the PARTY AFTER ORDER FOR DISCHARGE.

payment of the sum demanded was disputed, An order had been made on habeas corpus for tion.

and judgment was postponed for this applicathe discharge of a prisoner improperly arrested on a Sunday for a civil offence.

Cowling showed cause against the rule, which The gaoler continued to detain him under a

was supported by Bovill.

Cur. ad. vull. ca. sa. at the suit of a private creditor : Held, that the detainer was regular, and a the claim was within the 58th section, as in

The Court said, the question was, whether rule for the discharge was dismissed, without costs.

" Which provides, that “the Court shall Is this case an order had been made on not have cognizance of any action " in "which Nov. 2 last, for the discharge from custody of the title to any corporeal or incorporeal herea prisoner, who had been committed under the ditaments ” “ shall be in question.”






Superior Courts : Queen's Bench. volving the title to an “ hereditament.” It was magistrate at Stoke-upon-Trent, under the 4 their duty to put a liberal construction on the Geo. 4, c. 34, 8. 3, for leaving his service withlanguage of the Act of Parliament, and an out giving notice, and without assigning any “office” was included in a "tenement,” which lawful excuse. The rule had been granted on was comprehended in the word “heredita- the ground that the commitment should have ment.” The rule for a prohibition would there- set out the evidence, citing In re Hammond, fore be made absolute, and an application was 9 Q. B. 92, and that it did not allege the dealso refused for an order on the defendant to fendant had no sufficient lawful excuse for declare in prohibition.

leaving his employment.

Scotland in support. Warrington v. Early. Nov. 1, 23, 1853. The Court said, there was no authority to

show that the evidence must be set out in a PROMISSORY NOTE. — MATERIAL ALTERA- commitment, but the rule would be made abTION.-INTEREST PAYABLE.

solute on the ground the warrant did not allege The amount of a promissory note had been any offence had been committed within the

made payable with lawful interest from the Act, as the gist of the charge was, that the date thereof, and it appeared a memoran- prisoner had been absent without assigning dum had been written in the corner that in. lawful excuse. terest was to be paid at the rate of 6 per cent., without the defendant's concurrence : Wilbraham v. Bickley. Nov. 25, 1853. Held, that this was a material alteration,

POSTPONING APPLICATION and the plaintif could not recover on the

note. This was a motion for a rule nisi to set

An application was refused to postpone, until aside the verdict for the defendant and enter it

the commencement of Hilary Term, the

motion for a rule nisi for a new trial, on for the plaintiff on the plea in this action, which was brought on a promissory note to pay,

the ground the evidence was very tolumi

nous and the trial had only ended the presix months after date, the sum of 1,000l., with

vious day. lawful interest from the date thereof, which alleged that after the making of the note, and

In this motion for a rule nisi to set aside the before it became due, it had been altered in a verdict for the plaintiff and for a new trial on material particular, without his consent, by the ground the verdict was against the weight there being written in the corner of the note

of evidence, that interest at 6 per cent. was to be paid. On

Shee, S. L., applied for leave to move the the trial, before Crompton, J., at Oxford, the commencement of Hilary Term, as the evi. defendant obtained a verdict, subject to this dence was very voluminous, and the trial had motion.

only terminated the previous day. Keating in support.

The Court, however, said, the application Cur, ad. vull.

could not be granted, and on the motion being :

The Court said, the alteration in the corner proceeded with refused the rule, as the presid of the note must be viewed in the same lighting Judge was not dissatisfied with the verdict. as if it had been made in the body. There was no particular usage of commerce to warrant its Regina (on the prosecution of Scott and others) insertion as in the case of the place of payment, v. Harrison. Nov. 25, 1553. and the alteration being unauthorised the con

CRIMINAL INFORMATION FOR LIBEL. MOtract was vitiated. The rule would therefore be refused.

Held, that a motion for a rule nisi for a criExparte Geswoud. Nov. 24, 1853.

minal information for libel will not be en

tertained on the last day of Term. COMMITMENT OF COLLIER

This was a motion for a rule nisi for a cri

minal information on the publisher of The EVIDENCE, SETTING

Times for a libel on the directors of the

London and South Western Railway ComA collier had been committed to prison under

pany. the 4 Geo. 4, c. 34, s. 3, for leaving his The Attorney-General and Bovill in support. service without giving notice, and without

The Court said, that, according to the pracassigning any lawful excuse : Held, that tice the motion could not be allowed to be the prisoner was entitled to his discharge, made on the last day of Term. on the ground the warrant did not allege he had no sufficient lawful excuse for leaving his employment.

In re William Marshall. Nov. 25, 1853. Held, also, that the warrant of commitment ATTORNEY. need not set out the evidence.

MASTER OF ROLLS' ORDER. A RULE nisi had been obtained on Nov. 15

An attorney had been struck of the roll of last, to discharge from custody a collier who this Court on an order by the Master of had been coinmitted to Stafford Gaol for two the Rolls to strike him of the Roll of Somonths with hard labour by the stipendiary licitors. On his being restored by the




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