Superior Courts: Lord Chancellor; Rolls. Rolls Court. 315 PROFITS. TENANT FOR LIFE.- REMAINDER-MAN. A direction in a will to raise renewal fines up again, and then I will give you my bill SUPERIOR COURTS. Lord Chancellor's Court. NEW ORDERS IN CHANCERY.-FEES. The Duke of Marlborough, by his will duly executed, devised his estates, consisting chiefly of leaseholds, both for lives and years, to trustees, in strict settlement; limiting the first estate for life to his eldest son the present Duke; and he thereby directed the trustees to renew the leases; and for payment of the renewal fines, fees, and other expenses, to raise out of the rents and profits of the said estates the necessary sums. The renewal fines and expenses amounted to 38,000/. in the time of the present tenant for life, and part of that sum was paid out of the rents and profits annually received, and reserved for that purpose. Upon a bill filed by the Duke of Marlborough against For copies of decrees or orders, pronounced the trustees and remainder-man, praying for prior to the New Orders, but not passed, remuneration as to the sum so paid, two questhe old fees are to be received. tions arose,-first, whether the words of the will, directing the trustees to raise the renewal The Lord Chancellor having given his judg-fines, &c. out of "the rents and profits," aument, simply affirming an order of the Vice thorized them to mortgage or sell part of the Chancellor, in a motion made to re-open bid-estates for that purpose; and secondly, what dings at a sale: Mr. Stinton, of counsel for that motion, asked for his Lordship's construction of the New Orders, in respect of the fees to be paid for copies of Orders and Decrees, many of which were made by the Vice Chancellor in the cause, before the New Orders came into operation, but not passed in consequence of the press of business in the offices: some of them were not yet passed. It was desirable for the parties who require copies of these orders to be informed, whether they are to pay the old fee of 128., or the new fee, which would come higher. He presumed, from the words added to the schedules of fees, as approved by his Lordship and the other Judges of the Court, that the old fees were to be received for the orders made before the publication of them. The words were, "For every copy of any decree or order passed prior to these Orders coming into operation, the usual fees heretofore payable for such copies are to be received." In aid of this construction, it was to be remembered, that decrees and orders bear date of the day on which the judgment is delivered, and not of the day on which they are drawn up. The Lord Chancellor, after a little hesitation, said, the old fees were payable on such orders. Goodall v. Pickford, Lincoln's Inn Hall, Feb. 10, 1834. proportion, if any, was the present tenant for life to contribute towards the fines. These questions were argued by Mr. Tinney, Mr. Wray, and Mr. Romilly, for the different parties. The Master of the Rolls.-As to the first question, he held that the trustees might raise the sums for satisfying the renewal fines by sale or mortgage of part of the estates, as these sums might be immediately demandable, and could not await the annually accruing rents and profits. In the case of Allen v. Backhouse,a where the testator declared, that leases for lives should be renewed, and the renewal fines raised out of the rents and profits, Sir Thomas Plumer, Vice Chancellor, was of opinion that the words directing the trustees to raise out of the rents and profits a sum which could not await gradual payment, warranted them to raise the sum by sale or mortgage. The Court inferred, from that direction of the testator, an intention that the money should be so raised as to be ready for the occasion. His Honour stated the circumstances of the case of Allen v. Backhouse, and said it was impossible to doubt the correctness of the principle laid down in that case, and he would apply it to this part of the present case. With respect to the second ques a 2 Ves. & B. 65. 316 Superior Courts: Rolls; Exchequer. tion, he found it extremely difficult to follow the decision in Allen v. Backhouse. There a reference was made to the Master, to enquire what proportion of the capital, raised by sale or mortgage, was to be paid by the tenant for life. There was no principle to determine how the tenant for life was to contribute, and it was impossible for the Master to ascertain it. His first impression was that he should not contribute at all to the renewal fines. In no part of the will is it expressed that the tenant for life should contribute, and in his opinion the principle of general equity did not apply. But inasmuch as the case of Allen v. Backhouse was well considered, and decided on authority, and afterwards confirmed on appeal by Lord Eldon, he would give counsel an opportunity of again arguing that part of the case. The question was accordingly argued on a subsequent day by the same counsel. The Master of the Rolls said, that at first he could not see how the tenant for life could be called on to contribute towards the renewals, as his contribution must depend on the duration of his enjoyment, which could not be ascertained until after his death. If the testator had not directed the sum to be raised out of a particular fund, the Court might apportion it between the tenant for life and the remainder-man; but where a fund was pointed out, as in this case, for the renewals, it was hard to apportion the part of the tenant for life, as, after paying half of the sun, he may die next day without enjoying it. It is therefore impossible to determine before his death the proportion to be contributed by him, as it dedends on the period of his enjoyment, and the benefit to be derived by him from the payment of the fines. The intention of the testator did not appear through the obscure expressions in his will; and it is to be regretted that conveyancers still persevere in introducing such ambiguous expressions, from which so much litigation arose, in the construction of wills. His Honour, on a subsequent day, said he had considered the whole of this case attentively, and found it difficult to form a judgment on it. After referring to the cases of Stone v. Theed, Nightingale v. Lawson, and White v. White, he declared it to be his opinion, that, looking to the general intention of the testator, the burden of the renewals should fall on the tenants in possession. Where a testator gave leasehold property and directed renewals, there being no provision made by him with respect to the fund by which the renewal expenses were to be borne, those who enjoy the benefit of those renewals must be held to contribute a share of the expenses, according to their respective terms of enjoyment. Originally the rule was, that the tenant for life should pay one-third, and the other two-thirds should fall on those entitled in remainder. But that was b 2 Bro. C. C. 243. c1 Bro. C. C. 440. d 9 Ves. 554. not a principle which could be considered consistent with equity. It was reasonable, where the tenant for life was of such an age that, by calculating the duration of life, it might be considered his interest was equal to one-third of the entire property, but if he happened not to be of such an age, the rule became unequal, and consequently unjust. It applied to all tenants for life, whether of the age of thirty or ninety; and as the principle was that contribution should be according to enjoyment, it was absurd to say that one of the latter age had the same probability of enjoyment, and should pay as much, as if he had been sixty years younger. It had therefore been decided, that there should be no such calculation as to duration of life, and that the tenant for life should pay according to the actual term of his enjoyment. But even this rule was only capable of a just application after the death of the tenant for life, and the only way of avoiding the difficulties of such a case was to require him to give security for the payment of what at his death might appear due in respect of the period of his enjoyment. But the testator in this case, having provided a fund to meet the expenses of the renewals, there was no occasion to resort to any general equitable principle. From the nature of the limitations in the will, it was obvious that the intention of the testator was that the leasehold estates in question should be a permanently beneficial interest for all who should succeed to them. He had devised the leaseholds to the same trustees, who were appointed trustees to his freehold and copyhold estates, and the first trust in respect of the leaseholds was, not in favour of those who were to take his freehold and copyhold property, but, first of all, out of the rents and profits, to pay the renewal expenses. There was in fact no gift of the leasehold property, but subject to the express trust for renewals of the lease. It was his Honour's opinion, on the whole will, on the inference arising from the nature of the limitations, the effect of the expressions used, and the nature of the first trust, that annual rents and profits were the fund out of which the expenses of renewal should be provided for, and that the parties successively in possession of the leasehold property under the will, should, out of the annual rents and profits, pay the expenses of the renewals of all leases which should fall during the period of their enjoyment. Marlborough v. Shaftesbury, at Westmin.. ster, 6th, 18th, and 25th November 1833. Exchequer. SERVICE OF RULE.-ATTORNEY'S OFFICE. What is an insufficient service of a rule on an attorney. On motion to make a rule absolute on affidavit of service, it appeared from the affi In this case an action was brought by the present plaintiff against a person of the name of Tibbit, on a bill of exchange, and a verdict obtained against Tibbit. Execution was issued for 461. 10s., the amount of debt and costs. To this amount Tibbit objected, and a rule was obtained by him requiring Sibley, the present plaintiff, or Lester, his attorney, to refund a portion of the sum levied. The matter was ultimately referred to the Master, but he had WRIT OF CAPIAS.-DEFENDANT'S RESIDENCE. made no appointment for hearing the refer -IRREGULARITY. ence. Sibley then demanded a sum of 187. 10s. as the balance due to him out of the proceeds The defendant's residence must be stated of the levy. This Lester refused to pay, and on the original writ. In this case bailable process was issued by the plaintiff against the defendant, and on it the defendant was arrested. On the original capias the residence of the defendant was not stated. On the copy served on the defendant it was stated. A rule nisi was obtained on the part of the defendant to set aside the writ, on the ground of the irregularity in not stating the residence of the defendant upon it. On shewing cause against this rule, it was contended, that no injury could result to the defendant in consequence of the omission which formed the ground of the alleged irregularity. The object of the statement was merely to enable the sheriff to find the defendant, and no disadvantage could accrue to the defendant in consequence of his place of residence not being stated in the writ, because in the copy which was served upon him his address was introduced. With respect to the rule of M. T. 1833, it was provided by that rule," that if there is an omission in the writ of any matter required by the act, the writ shall not on that account be held void, but may be set aside as irregular upon motion." It was, therefore, a matter of discretion with the Court whether it would interfere in the manner prayed for by this rule. an action was accordingly brought by Sibley for the amount. During the pendancy of this action an application was made, and a rule nisi obtained, requiring the plaintiff to show cause why the proceedings in the action should not be stayed until the rule before the Master had been disposed of. It was contended that this proceeding by action, while the rule was on discussion, must be considered as a contempt of the Court. On shewing cause against this rule, it was contended, that as this money had been received by Lester, as the attorney of Sibley, he could have no right to retain it against his client. The enquiry before the Master could make no difference in his liability to pay the sum which he had received on account of his client. If the levy were improper or excessive his client would be liable, and not the attorney. Lester therefore ought to pay over the sum for which this action was brought to his client. Per Curiam. In the present case Lester, the defendant, received this money, which was the proceeds of the execution, not on his own account, but as the agent of Sibley. The person, therefore, who would be liable to any action to be brought on the ground of the levy being wrongful, must be Sibley, and not Lester. No part of the rule which had been referred to Per Curiam.-As there are certain forms the Master for him to report upon required or prescribed by the act of parliament, it is ex-suggested that Lester ought to refund the alceedingly important that those forms should he leged excess in the amount of the levy. He adhered to. It would be almost impossible, therefore could not be called upon to pay over and exceedingly dangerous, were we to en- that money, and consequently he had no right quire in every case whether the defendant has to retain it in his possession. The present rule, received any injury in consequence of dis-therefore, for staying proceedings in the action, obedience to the rules of Court, or of the sta-can only be made absolute on the condition tute. The only object of the rule of M. T. that Lester shall bring the amount of the money 3 W. 4, was to protect the party from an ac- for which the action is brought into Court within a week. tion. Rule absolute, with costs, and a common appearance to be entered-Rice v. Huxley, M. T. 1833. Excheq. Rule absolute, without costs, on the defendant bringing the money into Court within a week; and if not, the plaintiff to be at liberty to proceed with his action. Sibley v. Lester, M. T. 1833. Excheq. ATTORNEY AND CLIENT.- EXECUTION. RE TAINING MONEY. Where an attorney may not retain money in his hands, which are the proceeds of an 4. To authorize Dissenting Ministers to so- thereof. lemnize Dissenters' Marriages; 5. To allow to Prisoners the benefit of having Counsel and Attorneys to advocate their defence; RESOLUTION AS TO PRIVATE BILLS. The last day for receiving petitions to the House of Commons for bringing in Private 6. To amend the law as to Justices of the Bills, is the 21st inst; for the first reading Peace; 7. Parish Apprentices; 8. To regulate County Coroners. We have thus, in the course of a week, the announcement of not less than Eleven Bills, affecting the Laws and the Administration of Justice. In the present stage of these measures, it is unnecessary to dwell on the grounds on which they are to be supported. We shall take an early opportunity, after each Bill has been introduced, to consider its expediency. Although we have heard rumours of the preparation of other Bills, some of which will probably be originated in the House of Lords, it does not appear that any movement in Law Reform has yet been made in the Upper House. LOCAL COURTS. An intimation has been given by Lord Althorp, that it is the intention of the Ministry to bring in a Bill this Session for establishing Local Courts, and that it will be first introduced in the House of Commons. This might be very proper if the people had petitioned their representatives for such a measure; but we have heard of no disposition to petition gene SPRING CIRCUITS. 1834. Satur. Feb .22 Tuesday 25 Circuits of the Judges.-Answers to Queries.-Queries. CIRCUITS OF THE JUDGES. England and Wales. 319 NORFOLK. MIDLAND. HOME. WESTERN. OXFORD. N.WALES. S. WALES NORTHERN. J.Taunton. LCJ Denman LCJ.Tindal LLyndhurst B. Bayley J. Park Durham Reading Wednesday 26 Hertford Newcastle Thursday 27 Saturd. Mar. I Carlisle Monday 3 Aylesbury [ton Chelmsford Thursday 6 Bedford Friday Saturday 8 Lincoln and New Sarum Welch Pool Lancaster Monday 10 Huntingd' n Tuesday 11 Wednesday 12 Cambridge Bala Thursday 13 Nottingham Friday 14 [and town Saturday 15 Carnarvon Monday 17 Bury St. Ed. Lewes Tuesday 18 Wednesday 19 Beaumaris Cardigan Thursday 20 Exeter & Saturday 22 Norwich & [city Hereford Ruthin Monday 24 [city Kingston Tuesday 25 Wednesday 26 Leicester & [boro' Thursday 27 Saturday 29 Coventry & Wedn. Apr. [Warwick ANSWERS TO QUERIES. Common Law. APPRENTICE.-MASTER'S DEATH. P. 159. It is quite clear that the executors of B. can claim no service from A., the apprentice. Barter v. Burfield, 1 Bott. P. L. pl. 696, 6th edit. S. C. 2 Stra. 1266. And it seems equally clear that the executors of B., the master, are discharged from all agreements and covenants for the instruction of the apprentice; for these are considered as personal to the testator, and determined by his death. Rex v. Beck, 1 Salk. 66. Baxter v. Burfield, ubi sup. Wadsworth v. Guy, 1 Keb. 820. S. C. 1 Sid. 216. the covenant on the part of the master for maintenance of the apprentice, still continues in force. Rex v. Peck, ubi sup. S. C. nomine Rex v. Petts, 1 Show. 405. Baxter v. Burfield, Soam v. Bowden, Finch Rep. 396. But ubi sup. And therefore the executors are liable in an action of covenant, as far as they have assets, if they neglect to maintain him. But an order of magistrates, that the executors should maintain and provide for the apprentice, would be bad, and might be quashed. Rea v. Pett, ubi sup. S. C. Carth. 231. Rex v. Chaplin, Comberb. 324. But it may be as well to observe, that in the case of Rex v. Peck, it was laid down by Lord Holt, that by the custom of London the executor is bound to put the apprentice to another master in the same trade. I. V. W. |