312; amending description of bail, 312 Insurance, Marine

constructive total loss, 18. See Limitations, Statutes of

claim for affidavit of insufficient Mortmainassets, 293

Pleading

on bill of exchange for a bet, 26; in action for diverting watercourse, 40; declaration for excessive distress, 53; accord and satisfaction, bad plea of, 54; in abatement, 74; puis darrein continuance, 82; issuably, 95; declaration in an action for calls, 131; right of common, 140; for traverse too large, 166; plea of justification and estoppel, 166; parties, 87, 119, 120; misjoinder, 119; exceptions for scandal, 161; trespass, right of way, 198; bankrupt's certificate, 232; covenant by lessee, 233; payment of money into court, 243; traverse, 244; averment and venue, 272; receipt in exoneration of demands, 310

Pontefract Manor Court
jurisdiction of, 96
Poor-

Poor Law Board, jurisdiction of, 38;
removal after residence with step-
mother, 61; lunatic order by jus-
tices of a city, 62
Settlement-by serving office of clerk

of district church, 74; by appren-
ticeship, 92

Poor-rate liability of literary institutions to, 75

Removal absence of husband abroad, a breach of residence, when, 90; residence broken by relief, 90; by order of removal, 93 Appeal mandamus to hear, 170 Overseers seizing property of lunatic criminal, 106

Guardians-election of clerk to, 140

Power

exercise of, 302

Practice, Common Law

under Trustee Act, 25, 49; amendment, 40; motion for habeas corpus, 43; writ of restitution in ejectment, 49; security for costs from foreigner, 50; discharge of insolvent prisoner, 60; omission of signature to notice in ejectment, 51; declaration for illegal distress, 53; plea of accord and satisfaction, 54; amendment of plea, 56; permitting fresh evidence after case closed, 61; irregularity in number of jury, 65; as to discharge of prisoner on death of plaintiff, 67; judgment as in case of a nonsuit, 77; waiver of tort to bring money had and received, 80; joinder of co-plaintiff, 80; costs of demurrer under County Courts Act, 95; writ of trial to County Court judge, 97; death of one of the parties, 98; form of affidavit in suggestion, 98; taxation of costs, 99; in error

to reverse outlawry, 107; order to
elect between two actions for same
cause, 141; affidavit to enlarge
peremptory undertaking, 156; dis-
tributable issue, 164; judgment as
in case of nonsuit, 170; issues
raised in action on contract, 179;
payment of money under award,
184; security for costs in action
for penalties, 192; pleading right
of way, 198; service of writ of
summons, 200; reversal of out-
lawry, 202; plea of justification to
a libel, 236; pleading payment of
money into court, 243; venue,
272; costs where issues of law and
fact, 294

Practice, Equity

RAILWAY COMPANIES-
mortgages and shares in not within
Mortmain Act, 175; engineer made
agent of, 179; rating of branch
lines, 180; specific performance,
210; liabilities as carriers, 223;
rating of, 71; right of action
against by landowner, 73; com-
pensation by, 73; damage by ob-
structing way, 74; mandamus to
complete after expiration of com-
pulsory powers, 92; assessment of
compensation by justices, 93; lia-
bility for injury to post-office ser-
vant, 123; liability as carriers,
125; proving calls against bank-
rupt's estate, 133; mandamus to
construct, 153; action will lie for
not completing, 154; covenants in
lease to, 157; purchase of charity
lands, 161; construction of private
Act, 164; compensation and costs,
165; agreement for compensation
enforced, though no damage done,
267; when agreement of secretary
not binding, 269; injunction to re-
strain contract refused, 275; exe-
cution on property of in hands of
receiver, 298; contract to purchase
land not required enforced, 301;
liable for damages not permitted
by Act, 304; contract with for
conveyance of servant, 304; ille-
gal proceedings of directors no
ground for refusing payment of
calls, 306. See Joint Stock Com-
panies' Lands Clauses Act.
Rating-

of railways, 71; costs of certiorari
in, 106; for repair of sea-wall,
162; of branch lines of railway,
180; chemical works, 182; vali-
dity of rate, 225
Real Estate-

costs, 3, 11; of counsel in defence of
prisoners, 10; of Court of Chan-
cery as to continuing trade of part-
nership, 11; as to costs of party
conducting his own opposition, 11;
as to case under Turner's Act, 15;
in proceeding against former soli-
citor, 21; admitting counsel's notes
on brief. 37; in trying validity of
a will, 37; taking an account, 45,
57; as to claims, 15; affidavits in,
58; setting down as short, 59;
prayer to account, 70; revivor,
70; exceptions for insufficiency,
70; parties, 87, 119, 120; discre-
tion of Master, 88; special case
under Turner's Act, 89; amend-
ment of claim, 114; misjonder,
119; claim orders, 120; power of
Court to give relief at hearing,
120; under Trustee Act, 139, 150,
162; exceptions, scandal, 161; in-
terlocutory applications on claims,
162; estoppel, 166; on foreclosure
claim, 175; appearance for infants,
176; application for appointment
of charity trustees, 195; affidavit
of plaintiff in a claim, 196; excep-
tions to Master's certificate, 196;
in injunction, 196; under Trustee
Act, 207; in foreclosure, 208; dis-
solving common injunction, 217;
demurrer for want of parties, 218;
leave to amend 68th order, 219;
suit by claims, stay of decree, 220;
compromise of suit, 220; security
for costs, 223; pleading pending
of another suit, 224; motion to
discharge prisoner, 229; specific
performance, 229; appointment of
receiver to infant's estate, 231;
12th General Order of 2nd of Nov.
-injunction, 239; reference, 240;
absconding defendant, 241; ap-
pearance for lunatic, 241; costs of
investment under Railway Act,
241; claim by partner, 242; leave
to file claim, 242; claim for fore-
closure, 241; injunction to remove
nuisance, 248; prisoner for con-
tempt, 249; parties to claim, 250;
service of writ, 251; equitable set-
off, 252; fund in court belonging to
a married woman, 274; substituted
service of subpoena, 275; as to stop
order on a fund by judgment cre-
ditor, 281 petition by infants,
282; sufficiency of answer, 282;
where sought to make mother guar-
dian, 282; on non-appearance of
plaintiff in claim, 282; in claim for
appointment of new trustees, 283;
writ of trial cannot be sent to the
County Courts, 285; pleading by
one of several parties interested,
290; statement of counsel on effect
of deeds, 293; defect in supple-
mental bill, defendant not being a
party, 293; affidavit of insufficient
assets in claim for a legacy, 293;
execution against property in hands
of receiver, 298; claims-for in-
quiring into trusts of a will, 293;
costs of in appointment of a re-
ceiver, 293; infants must be
pro-
tected by separate counsel, 293;
leave of Court to file, 309; Trus-
tee Act-service of petition under,
308
Prescription-
user must be once a year, 203; right Sea Shore-
to lights, 246
Principal and Agent-

when agent may sue as principal,
27; when engineer of a company
constituted an agent, 179; money
received by, 202

what is, 1 Receiver

practice of, 22; to infant's estates,
231; costs of claim for appoint-
ment of, 293; execution on pro-
perty in hands of, 298

Receipt

in full of all demands, onus of proof
of, 310
Recognizances-

names of justices on, 91
Recovery of Tenements-

jurisdiction of justices, 84
Registration of Designs—
See Copyright of Designs
Removals, Poor-
See Poor
Rent Charge-
Extinguishment of by subsequent
conveyance, 226
Replevin-

of machinery distrained, 96; avowry
for tithe rent-charge, 106; what
facts will sustain avowry, 225
Residence, Breach of―
See Poor
Reversionary Interest-
of married women,

2

SALE OF OFFICE-
covenant for, 107
Salvage

right to where two sets of salvors, 204
School, public

removal of master of, 73
Scire facias-
form of, 91

Rights of manor on, 300
Sessions Quarter-

costs of mandamus to, 83; affidavit
of service of notice for certiorari,
84; cost of certiorari, 106

Set-off

See Poor
Settlement-

of real estate, construction of, 250 Sheriffsale by, 22 Shipping

Registry Acts, 161; indorsement on bill of sale, 161; liability of cargo for bottomry bond, 285

Slander

by suspicion of felony, 65 Specific Performance—

purchase from client by a solicitor, 87 Stamp

on counterpart of deed, proof of, 64; deed of settlement-appeal from commissioners, 128; agreement on note, 172; agreement stamp in terms of a school, 231 Statutes

See Municipal Corporations Trust

presumption of, 59 Trustee Act

payment into court under, 25; affi-
davit, 49; proceedings under, 207;
order under cannot be made in
petition, when, 231; power to
appoint under sec. 32, 241; ap-
pointment of new trustees, 251.
See Practice (Equity)
Trustees-
appointment of new, under Trustee
Act, 71; transfer of stock to, 71;
breach of trust, 118; suit by,
under new Act, 118; breach of,
119; liabilities of, interest to be
paid by, 196; for calls in a com-
pany, 206; under Trustee Act,
207; liability for contribution,
224; power to appoint under 32nd
sec. of Trustee Act, 241; unequal
division of estate by, 247; testa-
mentary guardian, liable as, 249;
when Court will appoint, 251;
claim for appointment of new prac
tice, as to, 283; bill by, to recover
trust fund, 290; indemnity fund
by, how applied, 294. See Trustee
Act

Turner's Act-
practice under, 15

[For Index to General Matter see end of Volume.]

THE REPORTS.
Equity Courts.

VICE-CHANCELLOR KNIGHT
BRUCE'S COURT.

Reported by GEO. S. ALLNUTT, Esq. of the Middle Temple,
Barrister-at-Law.

Friday, Feb. 14.

MORRISON T. HOPPE. Will-Construction-Property-Real estate. Real estate held to be included in the word "property," although the testator referred to the income arising from his property under the terms "dividends" and "interest."

Samuel Kirkman, by his will, dated the 19th day of April, 1820, after appointing executors and trustees of his will, proceeded as follows:-"It is my will that my dear wife have for her own use during her natural life 4007. per annum, arising from stock in the 5 and 4 per cents standing in my name, and at her death to cease, and the principal to be added to my other property, and to be divided equally, share and share alike, to each of my three daughters, Mrs. Martha King, Mrs. George Biggs, and Mrs. E. Toswill; and I give to each of them 607. per annum, arising out of the stock in the funds, the interest arising out of all my property. Now, I wish it to be so understood, that the property so left to my daughters be secured to them, that their husbands shall have no power whatever to control, or constrain, or sell, or mortgage, any part of the property left to each of my daughters, or apply it to any other use; but that the executors see the dividends received by them and paid to my daughters regularly. And in case of the death of either of them, and at the death of each of their husbands, then to be left in trust for their children, and, at the age of twenty-one, to have share and share alike if more than one child be living. And I wish to give to the Missionary Society, for spreading the Gospel at home in the villages round about London, 107.; and also 107. to the Bible Society, and 51. to the Society for the Relief of the Widows of Ministers, held at Spa-fields Chapel, and 57. to the school of Spa-fields Chapel. As there will be a considerable residue, viz. canal shares, of the annuities of Mr. J. Lidley and Mr. Gascoigue, and the share stock from the Equitable and Amicable Society, which, and all other remaining property, to be consolidated and laid out in the public funds, or in the most secure and profitable way possible, to increase the property; and at the death of Mrs. Kirkman, to be divided, share and share alike, to each of my daughters, and at their death to each surviving child or children, share and share alike, to be so secured as they shall not be at liberty to dispose of it, or to alienate the property from them or their children. Mind this! that their husbands shall have no power to dispose of the property left to each of my daughters, Mrs. M. King, Mrs. Selina G. Biggs, and Mrs. Elizabeth Toswill, either by annuity, mortgage, or anything else; the interest to be received by them through their trustees.

The question arising in this suit was, whether some real estate, of which the testator was seised at the time of making his will, passed under the will, or descended to the testator's co-heiresses at law, as undisposed of by the will.

Wood, Cairns, Frith, Malins, and Toulmin, for parties interested under the will, contended that the real estate was included in the terms used by the testator, and cited Doe dem. Wall v. Langlands, 14 East, 378; Doe dem. Morgan v. Morgan, 6 Barn. & Cres. 512; Saumarez v. Saumarez, 4 Myl. & Cr. 331; The Midland Counties Railway Company v. Oswin, 1 Coll. 74; Ford v. Ford, 6 Hare, 486; and Warner v. Warner, 16 Law. T. 320.

R. Palmer and Selwyn, for the co-heiresses of the testator, cited Doe dem. Bunny v. Rout, 7 Taunt. 79; and Sanderson v. Dobson, 1 Ex. 141. The Attorney-General and Fooks, for the trustees. Brett, for another party.

KNIGHT BRUCE'S COURT.

ever, was not sufficient in his opinion to warrant the
Court to depart from the ordinary meaning of the
'words used, and particularly when it was impossible
for any person reading this will to suppose that the
testator intended to die intestate as to any portion
of his property.

the four sons of
The only issue of
three sons and a

LANE v. GREEN.
Will-Construction.
A testator gave 1001. apiece to
A. B. by her former husband.
A. B.'s former marriage was
daughter:
Held, that these three sons and a daughter took
4007.

KNIGHT BRUCE'S COURT.

letter of application, and founded on the prospectus. Evidence is here that the applicant saw the prospectus, and he must be assumed to have applied on the footing of that document, which authorises the incurring of expenses of plans and other matters. With respect to Maudslay's case, there was an order to wind up a formed company. It was a company incorporated, holding the certificate of the Board of Trade, and having a deed of settlement, and Messrs. Maudslay were allottees who did not accept shares. Here, however, there is not a formed company in any sense whatever. It was an abortive scheme, and in all other matters different from that of Maudslay. Nothing farther need be said of Carmichael's case, than that it is one of a provincial Henry Wright, the testator in this cause, by his committeeman, and not applicable on the present will dated the 30th of June, 1846, gave 1007. occasion. Matthew's case governed this, where he apiece to the four sons of Amy Hazell, wife of was held liable unless there was any fraud. Hazell, of Chorley, near Wallingford, by her former House of Lords have held that if there be no liability husband." The testator died on the 1st of July, at law, the Winding-up Acts have not the effect 1846. From the Master's report in the cause it ap- of creating a liability, and that is the whole extent peared that Amy Hazell was married but once before of the decision. Counsel also cited and observed the marriage to Hazell, and that of the first mar-on Parbery's case, and Woolmer v. Toby, 4 Railriage the issue was three sons and one daughter, and way Cases, 713. that these children were living at the date of the testator's will and death. The Master reported that these three sons and one daughter were the persons intended in the will of the testator by the description of "the four sons, &c." The cause now came on upon further directions.

The

The VICE CHANCELLOR during the arguments asked whether the present case was governed by that mysterious case which every one who spoke of or alluded to, whether sincerely or insincerely he could not say, professed not to understand; and at the close observed that where Courts had been contradicting Wilcock, for the plaintiff. each other for years, this Court could do no otherHeadlam and E. G. White, for some of Mrs. wise than follow the last decision. As this case if deHazell's children, relied upon the case of Lord cided in favour of the official manager must directly Selsey v. Lord Lake, 1 Bea. 146. contravene the principle laid down by Lord CranBagshawe, Winstanley, Bichner, and Riley ap-worth, a course which his Honour was not in any peared for other parties in the cause. degree disposed to pursue, he should order the name of the appellant to be removed. The costs must be paid out of the estate.

The VICE-CHANCELLOR said that he thought it impossible to say that the testator did not intend to give 4007.; and as there was no dispute as to the parties intended, he thought on this particular will the three sons and daughter of Mrs. Hazell should take the 4007.

Monday, March 24.

Ex parte HIRSCHEL, re THE BRIGHTON, LEWES,
AND TONBRIDGE WELLS RAILWAY COMPANY.
Joint-Stock Companies Winding-up Acts-
Contributory-Allottee.

An allottee of shares in a company, by the pro-
spectus of which it was stated that power was given
to the committee to apply the funds in payment
of expenses incurred in its formation, &c., was
Held, not to be a contributory of the company.

This was a motion on behalf of Mr. Daniel
Hirschel, by way of appeal from the decision of
Master Horne, whereby Mr. Hirschel had been
placed on the list of contributories of the above-
named company, in respect of ten shares. The
company was provisionally registered in September,
1845, and in the prospectus issued, the following
passages occurred :-

"Until an Act of Parliament shall be obtained, the affairs of this company will be under the control of the committee of management for the time being, to whom power given to allot the shares, and to apply the funds of the company in payment of all the expenses incurred in its formation, and in the preparation of the plans and sections to be submitted to Parliament. Power will be applied for in the Act, and in the meantime is hereby given to the committee of management, as above, to raise any additional capital, to abandon any part of the line, to make branch lines, or enter into any arrangements with any other company or companies, and also to nominate the first directors of the company."

Tuesday, March 25.

Ex parte CROXTON, re THE OUNDLE UNION
BREWING COMPANY.

Joint-Stock Companies Winding-up Acts-
Contributory.

The transferor of shares in a company had been
placed by the Master on the list of contributories
in respect of the shares up to the day of transfer;
but, upon appeal, the Court

Held, upon the construction of the deed of settlement, that the transferor was not a contributory. This was a motion on behalf of Mr. George Croxton, that the decision of the Master (Richards) charged with the winding up of the above-named company made on the 13th day of March instant, whereby the name of the said George Croxton was placed or directed to remain on the list or addenda to the list of proprietors or contributories of the said company, in respect of twenty-five shares of 251. each, until the 21st day of October, 1842, might be reversed, and that the name of the said George Croxton might be struck out of the list of proprietors or contributories of the said company, or that the said decision might be varied.

The Master inserted the name of George Croxton on the list of contributories, class 1, as a shareholder who had signed the deed and paid on his shares in full in respect of twenty-five shares of 201. each, as liable in respect of those shares to the 10th October, 1842; and on the same day the Master put the name of Charles Frederick Yorke on the list of contributories, class 4, as a transferee of the same shares as liable from the 10th day of October, 1842.

The company's deed of settlement, dated the 29th day of September, 1836, contained provisions for the transfer of shares and the registration of such transre-fers, which had been duly complied with upon Mr. Croxton's transferring the shares in question to Mr. Yorke on the 10th of October, 1842. The deed also contained the following clauses :

On the 7th of October, 1845, Mr. Hirschel wrote a letter of application for ten shares, in the form quired by the company. On the 10th of October, 1845, the allotment committee was appointed, and they met on several occasions, and on the 17th of November ten shares were allotted to Mr. Hirschel. but no deposit was paid by him. It was contested in the Master's office whether Mr. Hirschel ever received the letter of allotment; but on the appeal the fact that he had received it was admitted.

Malins and Southgate appeared in support of the motion, and said that at the time of the allotment the scheme had been virtually abandoned.

"13. That no member of the said company, his, her, or their executors or administrators, shall in any case or event (as between himself, herself, and themselves, and the other members thereof) be answerable or liable for or in respect of any debts, calls, or demands upon the said company, after he, she, or The VICE-CHANCELLOR said he should have sent they shall have ceased to be a member or members this case to a court of law, if either of the parties of, or to have a share or interest in the capital stock had desired it. Neither of the parties, however, had The VICE-CHANCELLOR called upon the counsel of the said company in his, her, or their own right desired it, but, on the contrary, they had all agreed for the official manager to distinguish the present or rights, or by representation, save only and except in requesting him to decide it; and it was not neces-case from those recently before Lord Cranworth. for and in respect of any sum or sums which he, sary that he should decline doing so. The question Bacon and Daniel for the official manager. The she, or they shall or may be liable to pay by reason was, whether the word "property," as it occurred letter of application for shares was founded on the of any forfeiture, penalty, or misconduct under no less than eight times in the will, or, as used in any prospectus, and the latter, therefore, formed part of some clause or provision in these presents conone or more of those times, was to be construed in the contract. As by the terms of the prospectus tained." its ordinary, correct, and proper sense, or otherwise. authority was given to incur expenses, this gentleman, "34. That from and immediately after any such The burden laid on those, who said that it was not by his application, entered into a contract to bear transfer or assignment, as last aforesaid, shall be to be construed in the ordinary, correct, and proper his proportion of such expenses. He is not now at made of any share or shares, the former or last prosense, to shew that it was not. In his Honour's liberty to say that he is not liable. This case is dis-prietor thereof shall thenceforth be for ever acquitted opinion those parties had not discharged themselves tinguishable from Capper's case, Maudslay's case, and discharged of and from all covenants, agreeof that burden. The only argument he thought ments, regulations, obligations, and liabilities whatcolourable, ably as the case had been argued on soever, under or by virtue of these presents, for or both sides, was, that the testator had expressed himin respect of the share or shares which shall have self here and there in the words "dividends" and been by him, or her, or them, so assigned or trans“interest," when he meant income. That, how ferred, save only in respect of any penalty, forfeiture, VOL. XVII. No. 417.

and Carmichael's case. In Capper's case the letter
of allotment was conditional, that condition was not
agreed to, and there was, therefore, no accepted con-
tract. Here there was an acceptance by the receipt
of the letter of allotment, sent in pursuance of the