Chancery.

CHARITABLE FOUNDATION.

1. Discretion of Trustees.] Real estate was vested in trustees upon trust, that the incumbents of the parishes of A, B, C, and D, and their successors, should employ the rents to and for the maintenance and education and keeping at Oxford of a lad, in order to make him a minister of the Church of England, such lad to be chosen out of one of the said parishes, and of such parents who were not of ability to give him such maintenance and education, in case any such lad could be found in any of the said parishes whom the trustees should think eligible; but, if not, then from any parish in England or Wales; but in every instance where a candidate fit or proper in the judgment of the trustees could be found in any of the said parishes, he was to be preferred. A vacancy occurring, there were two candidates, G. a native of one of the said parishes, and J. a stranger. The trustees elected J. A petition was presented by the father of G. and others, praying a declaration that the election of J. was invalid, and that G. ought to been elected; or that a new election might be had. The affidavits of the trustees stated that on the day of election the cases of J. and G. were fully and impartially considered by all the trustees, and that in the fair and bona fide exercise of their discretion, without favor or ill-feeling towards any individual or class, they unanimously considered J. the proper object for the benefit of the charity; but no reason was given why G. was not considered eligible. The court, upon appeal, refused to interfere with their discretion. In re Beloved Wilkes's Charity, 73.

2. Control of the Court.] Where, in the exercise of a discretion given to trustees, there appears an absence of indirect motive, an honesty of intention, and a fair consideration of the case, the court will not examine into the accuracy of the conclusion come to by the trustees. Trustees are not bound to set forth the particular grounds of selec tion; and, semble, it is prudent not to do so; but where reasons are stated which do not justify the conclusion, or where it is admitted that they have acted upon an erroneous principle, the court will interfere. 1b.

3. Election.] It is the duty of trustees of a charitable foundation to give notice of their intention to proceed to an election; but where the fact was notorious to the parties interested, and it was not shown that any one was prejudiced by the want of formal notice, the court overruled the objection. Ib.

CLUBS.

Company-Winding-up Acts.] The affairs of a club were ordered to be wound up under the Joint Stock Companies Winding-up Acts. In re St. James's Club, 140.

CODICIL.
See WILL.

COSTS.

1. Railway Company-Land-owner.] A land-owner is entitled to costs upon an application for the money paid into court by a railway company, as compensation for taking land, where his refusal to take the amount awarded was not wilful. Railston, ex parte, 293.

2. Order for Taxation of] Two solicitors, A and B, dissolved partnership, and it was agreed, that B should be entitled to half the profits of a suit instituted by them. After some time, an order was made, by consent of both, for the taxation of the costs down to the date. Some of the costs had, unknown to B, been already taxed and received by A: —

Held, under the circumstances, that the order comprised all such costs, and the previous costs having been omitted in the master's certificate, the court, upon a petition to review the taxation, referred the matter back to the master. Greenwood v. Churchill, 296.

Chancery.

3. Payment to Solicitor.] By an order of the court, the costs to be incurred by a married woman suing by her next friend in a future proceeding, were ordered to be paid to A B, her solicitor. Pending the proceedings, A B was discharged, and C D appointed solicitor. A B received the whole costs:

Held, that the court had jurisdiction, on petition, to order A B to pay over to C D his share of such costs; and secondly, that A B could not set off, as against the amount, a debt due to him from the next friend. Bailey and Hope, ex parte, 203.

4. Trustees Liability for Costs.] Trustees had lent money on a technically insufficient security. In the master's office, they entered into evidence to prove its sufficiency, but failed; and they afterwards presented a petition for calling in and investing the money. This was done, and no loss occurred:

---

Held, that the trustees were entitled to their costs of both proceedings. Royds v. Royds, 251.

5. Special Agreement — Solicitor and Client Taxation.] Messrs. S. solicitors, promised, by letter, to conduct the professional business in which F. might be concerned "personally or otherwise," upon the terms of receiving agency charges. F. was a solicitor, but he had omitted to take out his certificate; at that time he was interested in a suit which he had procured to be instituted against himself, for the purpose of administering the estate of a testatrix, whose executor he was, and in whose estate he was beneficially interested. Upon the completion of this business, Messrs. S. obtained the whole of the money belonging to F. out of court; they repudiated the letter, and insisted upon their right to costs as between solicitor and client; they also refused all accounts, and never delivered any bills of costs. Upon a bill by F.:

Held, that the letter was a valid agreement; that Messrs. S. were not entitled to higher charges because F. was uncertificated; that his being uncertificated was immaterial, as such an agreement was legal if made with any client; that the transaction was such that it could not be taxed under the common order; and that it was necessary to file a bill and abandon the common order which had been obtained for taxation; and a reference was directed to the taxing master to tax the bill of costs as between principal and agent. Foley v. Smith, 117.

6. F. had also mortgaged his interest to Messrs. S. to secure a sum of 150l., which they were to pay for F.; but though they omitted to make the payment, and retained that with other money in their hands, the court treated it as an ordinary sum of money in hand, and declined to direct the taxing master to allow the plaintiff interest upon those sums, though the mortgage, which was to include them, was bearing interest. Ib. 7. Land Clauses Consolidation Act, 1845, ss. 80, 82-Public Undertaking — Land vested in a Trustee-Costs of taking.] The South Wales Railway Company took some land, part of a copyhold estate, which was vested in a trustee, who died leaving an infant heir. The company having required a surrender of the lands to be made to them, the parties beneficially entitled to the estate presented their petition under the 11 Geo. 4, & 1 Will. 4, c. 60, and obtained an order that a party should, in the place of the infant, surrender the whole estate to a new trustee, who surrendered to the company the land taken by them for the purpose of their undertaking. Upon a petition by the railway company objecting to the payment of the costs of and incident to this petition:

Held, that the taxing master was wrong in allowing, as against the company, the costs of procuring a new trustee and tenant. South Wales Company, in re, 48.

8. Allowing Suit to proceed for.] The defendant having satisfied the demand for which the suit was instituted, the court refused to allow it to be proceeded with for the costs; but upon the terms of an agreement, to which the plaintiff had consented, but which the defendant had not strictly observed, ordered the defendant to pay the costs of the plaintiff out of pocket in the suit and on this notice of motion. Tapp v. Tanner, 57.

9. Mortgagor-6 & 7 Vict. c. 73, ss. 37, 38, 43 — Solicitor's Bill — Delivery — Taxation.] A solicitor, acting on behalf of mortgagees, sold the mortgaged premises, and on the 27th of June, 1850, he retained the amount of his bill of costs out of the pro

Chancery.

ceeds of the sale. On the 29th of June, 1850, he sent a copy of the bill to the solicitor of the mortgagor, and on the 27th of June, 1851, the mortgagor applied for an order for taxation : —

Held, that the taxation might have been had upon the common order; that the petition was presented in time; that it could scarcely be considered a payment of the bill of costs until the petitioner had the means of knowing the amount of the surplus, and that he was entitled to taxation, but that he must pay the costs beyond the costs of the common order. Steele, in re, 59.

10. Married Woman - Next Friend - Security for Costs.] Security for costs ordered to be given in a suit in which a married woman was plaintiff by her next friend, the next friend being a laborer. Stevens v. Williams, 91.

See PRACTICE.

TRUSTEE.

COMMISSION.

Return of]

See PRACTICE. EXECUTors.

Real Estate

CONTRIBUTORY.

See WINDING-up Acts.

CREDITORS' SUIT.

Heir-at-Law - Issue devisavit vel non-Parties.] The title of a cre

ditor is paramount to that of the testator's heir-at-law:

Held, therefore, on claim filed by a creditor against the devisees in trust and the heirat-law of a testator for payment of debts out of the testator's real estate, that the heirat-law was not entitled to have the claim dismissed as against him, or to an issue devisavit vel non. Spickernell v. Hotham, 138.

CROSS EXAMINATION.

See WITNESS.

DEED.

Deed, Cancellation and setting aside of― Solicitor and Client· ·Solicitor, Duties of in Preparing Deeds.] A deed of settlement, whereby the settlor is delivered bound hand and foot as to the property settled into the power of his trustee, cannot be maintained in equity without the clearest proof that it was made at and with the request, consent, knowledge, or instance of the settlor; and a solicitor who takes upon himself to prepare such a deed for execution by his client, without the clearest evidence of the concurrence of the latter, does so, subject to all the consequences and liabilities of the deed being set aside, notwithstanding the solicitor may have been influenced by motives for the benefit of his client, in preparing the settlement. Therefore, where the plaintiff, alleged by the defendant to be young and extravagant, applied to a solicitor to raise a certain sum on mortgage, and the latter, with a view to prevent the former from dissipating his fortune, tied up the whole of his property and constituted himself sole trustee, the court, on bill filed by the plaintiff, alleging that the deed of settlement had been prepared without his authority, consent, or knowledge, and there not being any evidence to the contrary, declared the deed void in equity, and directed a reconveyance of the trust property by the trustee. Moore v. Prance, 17.

DEMURRER.

See INSURANCE. REVIVOR.

Chancery.

DEVISE.

Mortgage.] A mortgagee in fee of lands of gavelkind tenure gave and devised all the residue of his estate personal, and real property, moneys, and securities, and all other effects, which should remain after paying his just debts, funeral and testamentary expenses, to his wife for her own use and benefit:

Held, that in consequence of the devise by the will, no estate in the mortgage premises remained vested in the infant co-heirs in gavelkind of the mortgagee; and an order was therefore refused, upon a petition presented under the Trustee Act, 1850, praying an order vesting the infants' estate in the petitioner. John Field's Mortgage, in re, 260.

In Bankruptcy.]

See ANNUITIES.

DISCHARGE.

See BANKRUPT.

DONATIO MORTIS CAUSA.

1. Gifts.] A lent B 500l. in October, 1843, on which occasion B wrote and signed the following document: "Received of A 500l., to bear interest at 4l. per cent.," and gave it to A. In June, 1845, A being dangerously ill, gave the document to her servant, with an expression to the effect that she wished the debt to be cancelled. Ten days after this delivery, A died:

Held, that this was a donatio mortis causâ in favor of B. Moore v. Darton, 134.

2. Gifts of this nature have not been abolished by the last Wills Act. Ib.

1. Evidence of Co-Defendant.] The evidence of a defendant in favor of a co-defendant is inadmissible under the 6 & 7 Vict. c. 85, if it proves the case of the witness himself. Triston v. Hardey. 204.

2. Cross-Examination.] The cross-examination of a defendant, tendered as a witness, is a waiver of his incompetency, where the objection must be assumed to have been known at the time of the cross-examination. Ïb.

3. Affidavits.] A class of children being interested, the court, instead of directing the preliminary class inquiry, received the affidavit of the parents proving the class, and then allowed the cause to be heard. Bush v. Watkins, 215.

EXCEPTIONS.

See WITNESS.

Chancery.

EXECUTORS.

1. Unsettled Accounts - Intermediate Dividends of Fund in Court.] Where executors had invested money to answer claims on unsettled accounts between their testator and other persons, and paid the dividends to the tenant for life under the will, on a claim filed after the death of the tenant for life, by a party entitled to the fund, the court directed an inquiry before the master as to who was the party entitled to the capital, and ordered the dividends to be paid in the mean time to the person entitled to the testator's estate. Blachford v. Toller, 246.

2. Executors in India of an indigo planter held entitled to a commission of 51. per cent. on the gross assets collected by them, whether such assets be collected by themselves or their agents, and not merely on the balance remaining after satisfying the claim of the agents for their advances, interest, and commission. Matthews v. Bagshawe,

244.

3. Authority of] A mere authority, in a will, to continue the testator's assets in trade, does not authorize the executors to trade with them; and partners trading with such assets, with notice, are bound to inquire into the trusts upon which they are held, and are liable in respect of them. Travis v. Milne, 195.

4. An executor, not proving the will until after his co-executors had improperly invested the testator's assets, cannot justify taking no step in respect of or interfering with them for a considerable period. Ib.

FACTOR.

See ACCOUNT.

FAMILY SETTLEMENT

1. Voluntary Deed.] The heiress-at-law of a supposed intestate and her husband, and her illegitimate son, an expectant devisee of the supposed intestate, for the purpose of avoiding questions and differences between them touching the estate of the intestate, and of making an amicable settlement of their respective claims, settled their interests upon certain trusts for the benefit of themselves and certain legitimate and illegitimate children of the heiress and her husband:

Held, to be a valid family settlement, and not voluntary or void under the statute of Eliz. c. 4, as against subsequent mortgagees (without notice) and others claiming under the heiress and husband. Heap v. Tonge, 189.

2. Whether the court will in such a case take the title deeds out of the hands of the mortgagees,quære. Ib.

FEME COVERT.

Rights of Suitors.] A wife, in person, has no right to be heard on behalf of her husband upon an application by him to the court. Oldfield v. Cobbett, 56.

FORECLOSURE

1. Practice.] Upon a bill of foreclosure by first mortgagee, there was a contest between the defendants, the puisné mortgagees, as to their respective priorities.

The court held that it must, in the first instance, direct an inquiry. Duberley v. Day,

188.

2. Extension of Time.] Even in the case of infants, the court will only extend the time for payment of the mortgage money, upon the terms of immediate payment of the interest and costs. Coombe v. Stewart, 167.

3. Claim-Mortgage.] In a suit by claim for foreclosure, it is optional with the plaintiff to take the usual order at the hearing, or an inquiry as to other incumbrances. Robinson v. Turner, 138.