110 Superior Courts: Rolls.-V. C. Kindersley.-V. C. Stuart. within a week, or in default the bill should stand dismissed with costs. It appeared that the plaintiff's solicitor, although he had duly set down the cause for hearing, had omitted to serve the subpoena within the time limited, in the belief it would be sufficient to do so under Order 16 of 8 May, 1845, art. 46,' ten days before Michaelmas Term, whereupon a warrant to tax had been taken out. The bill was filed in 1845. Roupell and Drewry in support of the motion; R. Palmer, Ellis, and Cole, contrà. The Master of the Rolls said, that no case had been made out for the indulgence of the Court, and besides the motion should have been to obtain leave to restore the bill. The motion would therefore be refused, with costs. Lady Jervoise v. Jervoise and others. Dec. 5, 1853. A testator gave his jewels to his wife, the plaintiff, for life, and afterwards they were to be heir-looms. It appeared certain jewels had been presented to the plaintiff by her aunt, and the testator had also given her others in his lifetime: Held, that these were not included in the will, but were paraphernalia. Held, also, that as the representatives of the plaintiff could not recover, she had properly filed her claim as to the construction of the will, and the costs were directed to be paid out of the estate. go THIS was a claim for the opinion of the Court on the construction of the will of the late Rev. Sir Samuel C. Jervoise, whereby he directed all his "jewels" should be held in trust for the use of his wife, the plaintiff, for life, and afterwards should be treated and as heir-looms in his family. It appeared that the plaintiff was presented by her aunt with certain pearl ornaments, and had had them reset at her own expense, and that the testator had also given her a pair of diamond bracelets. The question was, whether these formed part of the plaintiff's paraphernalia, or were in cluded in the will. Glasse and T. H. Hall for the plaintiff; Haynes for the trustees. The Master of the Rolls said, the plaintiff Vice-Chancellor Kindersley. Price v. Bury. Dec. 3, 1853. EQUITABLE MORTGAGE OF COPYHOLDS. FORECLOSURE.-COSTS OF SURRENDER. Held, in a suit to foreclose, that the mortgagor was liable to pay the costs of a surrender to an equitable mortgagee of copyholds, by deposit of copies of Court rolls, &c. In this suit to foreclose an equitable mortof copies of the Court rolls, &c., a question gage of certain copyhold property by deposit arose as to the payment of the costs of surrender to the mortgagee. Glasse, De Gex, and W. W. Cooper for the several parties. The Vice-Chancellor said, that the mortgagee would, in the case of freehold, have to tender to the mortgagor a conveyance for execution, the costs of which the mortgagee would have to bear, but that in case of copyholds, the mortgagor had to take the initiative and to surrender his estate to the lord, in order to pass the same to the mortgagee, and therefore the mortgagor would have to bear the costs of such surrender. Vice-Chancellor Stuart. Thomson v. Partridge. Nov. 25, 1853. ENLARGING TIME FOR CLOSING EVIDENCE. The time was enlarged for closing the evidence on the defendant's application, where the plaintiff, who had obtained previous enlargements, had not filed his affidavits until two days before the time expired. Malins and Piggott appeared in support of this motion to enlarge the time for closing the evidence, on the ground the plaintiff had not filed his affidavits until Nov. 1 last, and that the defendant had been unable to obtain office copies until after Nov. 3, the period fixed for closing the evidence, under an order of enlargement obtained by the plaintiff. Selwyn, contrà. The Vice-Chancellor said, that as the plaintiff had obtained the prescribed period of nine weeks after issue was joined for closing the evidence,' to be enlarged to nearly twice that time, it was only fair the defendant should should have a similar indulgence, and leave 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 have made it afterwards, the costs of all parties would come out of the estate. was entitled to retain the ornaments in ques Which directs, that "a subpoena to hear judgment is not to be returnable at any time less than one month from the teste of the writ; and it is to be served at least 10 days before the return thereof." Exparte Lines. Dec. 5, 1853. ARREARS OF DIVIDENDS ON FUND TRANS- A petition for the payment of arrears of di- 'Under the 32nd Order of 7th Aug. 1852. Superior Courts: V. C. Stuart.-V. C. Wood. National Debt, was directed to stand over in order to make inquiries. G. M. Giffard appeared in support of this petition for payment of the arrears of dividends due on certain 3 per cent. annuities, purchased by the petitioner, and transferred, in the name of Mr. William Frederick Cannon, of Kirton, Hertfordshire, which was alleged to be a fictitious name, assumed in order to prevent the petitioner's wife from being aware of the transaction. It appeared the petitioner had received one dividend on part of the fund, which was purchased in two different sums, but had received nothing in respect of the other portion. The whole had been transferred to the Commissioners for the Reduction of the National Debt under the 56 Geo. 3, c. 60. Wickens for the Commissioners, contrà, on the ground further inquiry should be directed. The Vice-Chancellor accordingly directed the petition to stand over for the purpose of instituting inquiries, whether there was any person of the name in question, and also as to the circumstances under which the one payinent had been made. Vice-Chancellor Wood. ADMINISTRATION SUIT. DISTRIBUTION An order was made for the insertion, in an THIS was a motion in this administration suit for the insertion, in an order on further directions to apportion a fund in Court among creditors, of a direction that where the amount was less than 107. it might be paid to the solicitors of the respective creditors. Lewin appeared for the several parties, in support. The Vice-Chancellor said, the order could not be made without the written consent of the several creditors, verified by affidavit. Cole v. Burgess. Nov. 9, 1853. CREDITOR'S SUIT. STAYING ACTION AT 111 tuted, but no proceedings had been taken after notice of decree. Glasse in support. Shapter, contrà, citing Bear v. Smith, 5 De G. & S. 92. The Vice-Chancellor said, that as the execudebt, the motion could not be granted unless tor did not deny having assets nor dispute the on payment of the costs at law and of the motion. Lord Ricers v. Fox and others. Dec. 3, 1853. -ERECTION OF LABOURERS' COTTAGES. Under a will, the trustees were empowered to THIS was a motion for a decree under the 15 & 16 Vict. c. 86, s. 15, in this suit, which was instituted for a declaration to apply part of the proceeds of certain sales and exchanges effected under the powers of the will of the late Lord Rivers, dated March, 1823, in building 26 cottages for labourers and servants to be employed on the farms near the farm buildings. It appeared that the trustees were empowered to apply the proceeds of timber cut by them, and of sales and exchanges effected with the consent of the plaintiff, the tenant for life, in paying off incumbrances, debts, and legacies, or in the improvement of the manors and hereditaments by the erection of farm-houses and outbuildings, or by draining or planting, or otherwise; and that the farms were at a distance from any village, and could not be properly cultivated for want of cottages for labourers. It was also alleged that the value of the property would be increased to the amount proposed to be thus expended. Giffard in support; Hobhouse for the trus tees. The Vice-Chancellor made the declaration as prayed. Boyse v. Rossborough and wife, Nov. 4; WILL.-ESTABLISHING AS AGAINST HEIR- Held, that the Court of Chancery has juris- Where an executor did not deny assets nor dispute the debt, an injunction was refused to restrain an action at law by a creditor, which was brought before the creditor's 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, adfor 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 112 Superior Courts: V. Cood.-Queen's Bench. THIS was a motion for the appointment of one out of two solicitors at Maidstone to examine certain witnesses who were resident at a distance about 20 miles from London. Webb in support; Howe, contrà, on the ground the application should be made at Chambers, and that some of the witnesses had been examined in London before the Examiner. fendants, the testator's heiress-at-law, and Ler husband, had instituted a suit in Ireland to obtain a declaration that the will was void on the ground the testator was of unsound mind, and was under the undue influence of the plaintiff, and that on an issue being directed the will had been declared invalid, but an appeal was now pending to the House of Lords from decision of the Irish Court refusing a new trial. It also appeared that the defendants had taken no steps in this country in respect of the real estates here, which were in the possession of the plaintiff, and this suit was therefore instituted to have the will established as against 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 simple devise and no trusts to execute. Solicitor-General, Rolt, and Cairns contrà. The Vice-Chancellor said, it was not compulsory to make the application at Chambers, although it might have been made there, and that as the former practice in respect of witnesses resident more than 20 miles from London was not altered, the order would be ORDER FOR REMOVAL OF PAUPER. -PAY- On the hearing at the Sessions in a pauper The Vice-Chancellor said, the jurisdiction of this Court to decide on the validity of wills, seemed to have arisen before the passing of the 32 Hen. 8, c. 1, the Statute of Wills, and it appeared on reference to early decrees so far back as 1573, that the Court had taken on itself, by inquiry before the Master, to determine such questions, but shortly before the Statute of Frauds, 29 Car. 2, c. 3, a reference was sent to a Court of Law, the cause still being retained in this Court. The origin of the jurisdiction in establishing wills against the heir-at-law was, however, involved in great obscurity, but it appeared to have been acquired gradually and silently, and it was difficult to see how such jurisdiction could have been assumed, merely because there were trusts to execute. But whether there were a trust or no trust, could make no difference with respect to the heir, of a lawful rate. who was always entitled to an issue, and when the will was found valid thereunder, this Court would establish it. The demurrer would therefore be overruled, but without costs-the defendants to have a month's time in which to put in their answer. 1 Read v. Prest. Dec. 5, 1853. EXAMINATION OF WITNESSES IN THE COUNTRY.-PRACTICE. such sub In this case, from the Anglesea Sessions, it was alleged that a pauper named Hughes had rated a tenement and paid a rate of 2s. 6d. in respect thereof, but on the hearing the fact of payment was proved, but the rate-books were not produced to show the payment was A subpoena duces tecum had been served on the parish officers to produce the books, but it was stated to have been served on the wrong party. Secondary evidence of their contents was thereupon rejected, and an order for his removal was made. M. Lloyd in support of the order; Welsby, contrà, citing Rex v. Inhabitants of Coppull, 2 East, 25. 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 subpoena, 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 barrister to take such examination, although it appeared some of the witnesses had been already examined in London before the examiner. The application may be made to the Court as well as at Chambers. An immediate issue was then tendered by the plaintiff, but was rejected. Regina v. Mayor, &c. of Manchester. POOR. 19, 1853. Nov. LIABILITY OF GASWORKS TO BE RATED.-EXEMPTION IN LOCAL ACT. By the 14 & 15 Vict. c. cxix. s. 138, continuing the 11 Geo. 4, and 1 Wm. 4, c. xlvii., s. 107, certain gasworks, &c., were exempted from poor-rate so long as the 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 de- By the 32 Geo. 3, c. lxix., Commissioners Pashley and Wheeler in support of the rate, on the ground the townships derived no benefit from the profits of the works; Hugh Hill and Monk, contrà. The Court said, that the exemption still prevailed in respect of the whole property held in trust for the township, although it might operate very unjustly on the townships, and the appeal was therefore allowed. Pashley for the Town Council, Griffiths for the creditor, showed cause. Gray in support, citing Barratt v. Price, 2 M. & Scott, 634; 9 Bing. 566; 1 Dowl. P. C. 725. The Court said, that, although the prisoner was entitled to be discharged so far as the detainer of the Town Council was concerned, who were substantially the same parties obtaining the illegal arrest, and could not take advantage of their own wrong, he was not entitled to be discharged in respect of the detainer at the suit of a private creditor, and the rule must be discharged, but without costs. Stephenson v. Rayne. Nov. 3, 23, 1853. COUNTY COURT.-PLAINT BY CLERK OF PA ROCHIAL CHAPELRY. TITLE. JURIS On the trial of a plaint in a County Court by the clerk of a parochial chapelry, to recover from an inhabitant householder the amount of his wages, an objection was taken as to jurisdiction, under the 9 & 10 Vict. c. 95, s. 58-the plaintiff's title to the office, and to the payment in question being disputed: A rule was made absolute for a prohibition against the further proceeding in the plaint, and an application was refused for the defendant to declare in prohibition. THIS was a rule nisi for a prohibition on the Judge of the Durham County Court, from further proceeding in this plaint, which was of Barnard Castle, to recover from the defendbrought by the clerk of the parochial chapelry ant, an inhabitant householder, the sum of 1s. 8d., his wages for five years, at the rate of 4d. per annum from each inhabitant householder, and payable at Easter. On the trial an objection was taken, that the Court had not jurisdiction under the 9 & 10 Vict. c. 95, s. 58,' as the plaintiff's title to the office and to the payment of the sum demanded was disputed, tion. and judgment was postponed for this applica Cowling showed cause against the rule, which was supported by Bovill. Cur, ad. vult. the claim was within the 58th section, as inThe Court said, the question was, whether Which provides, that "the Court shall not have cognizance of any action" in "which the title to any corporeal or incorporeal hereditaments" "shall be in question." 114 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, s. 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 was comprehended in the word "hereditament." The rule for a prohibition would therefore be made absolute, and an application was also refused for an order on the defendant to declare in prohibition. Warrington v. Early. Nov. 5, 23, 1853. PROMISSORY NOTE. MATERIAL ALTERA TION. INTEREST PAYABLE. The amount of a promissory note had been made payable with lawful interest from the date thereof, and it appeared a memorandum had been written in the corner that interest was to be paid at the rate of 6 per cent., without the defendant's concurrence: Held, that this was a material alteration, and the plaintiff could not recover on the note. THIS was a motion for a rule nisi to set aside the verdict for the defendant and enter it for the plaintiff on the plea in this action, which was brought on a promissory note to pay, six months after date, the sum of 1,000l., with lawful interest from the date thereof, which alleged that after the making of the note, and before it became due, it had been altered in a material particular, without his consent, by there being written in the corner of the note that interest at 6 per cent. was to be paid. On the trial, before Crompton, J., at Oxford, the defendant obtained a verdict, subject to this motion. Keating in support. Cur. ad. vult. lawful excuse. The rule had been granted on the ground that the commitment should have set out the evidence, citing In re Hammond, 9 Q. B. 92, and that it did not allege the defendant had no sufficient lawful excuse for leaving his employment. Scotland in support. The Court said, there was no authority to show that the evidence must be set out in a commitment, but the rule would be made absolute on the ground the warrant did not allege any offence had been committed within the Act, as the gist of the charge was, that the prisoner had been absent without assigning lawful excuse. any Shee, S. L., applied for leave to move the commencement of Hilary Term, as the evidence was very voluminous, and the trial had only terminated the previous day. The Court, however, said, the application 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 insertion as in the case of the place of payment, and the alteration being unauthorised the contract was vitiated. The rule would therefore be refused. Exparte Geswood. Nov. 24, 1853. COMMITMENT OF COLLIER FOR LEAVING OUT. A collier had been committed to prison under the 4 Geo. 4, c. 34, s. 3, for leaving his service without giving notice, and without assigning any lawful excuse: Held, that the prisoner was entitled to his discharge, on the ground the warrant did not allege he had no sufficient lawful excuse for leaving his employment. Held, also, that the warrant of commitment need not set out the evidence. A RULE nisi had been obtained on Nov. 15 last, to discharge from custody a collier who had been committed to Stafford Gaol for two months with hard labour by the stipendiary Regina (on the prosecution of Scott and others) CRIMINAL INFORMATION FOR LIBEL.-MO- Held, that a motion for a rule nisi for a cri- THIS was a motion for a rule nisi for a criminal information on the publisher of The Times for a libel on the directors of the London and South Western Railway Com |