Superior Courts: Lord Chancellor's. SUPERIOR COURTS. Lord Chancellor's Court. WILL.-CONSTRUCTION.-CHARITABLE PUR POSES. UNCERTAINTY. Held, that a bequest of the residue of funds, consisting of stock and dividends, “for such charitable or other purposes as testator's trustees should think fit, without being accountable to any person for such their disposition thereof," is void for uncertainty. 481 Bennet-pay and apply the whole of his said funded property, both stock and dividends, including his said bank stock, after the death of the said F. Bennet, to and for such charitable or other purposes as his said trustees, and the survivor, &c. should think fit, without being accountable to any person or persons whomsoever for such their disposition thereof. same. The Vice-Chancellor, before whom the cause came for hearing, decided in favor of the plaintiff on this point; upon which the trustees now appealed to the Lord Chancellor. The testator having made several codicils to his will, and changed one of the trustees, but without having made any further material alteration therein, died in May, 1831. W. R. Ellis died in September, 1831, without leaving any child, having by his will bequeathed all his property and effects of every description Peter Richard Latry, by his will, bearing to his wife, the plaintiff, and appointed her date the 10th of June, 1815, devised unto co-executrix of his will. She filed her bill William Richard Ellis his freehold lands and against the trustees, making the Attorneytenements, therein described, for his life, with General a party thereto, and she thereby remainder to his sons successively in tail male, prayed for a declaration of the Court, that the with remainder to trustees, upon other trusts ultimate bequest of the stock, dividends, &c. therein mentioned. The freehold property is "for such charitable or other purposes as the not in question in the case. The testator, trustees should think fit," was void, and that having considerable property vested in the the same vested absolutely, as part of the revarious public stocks, gave his bank stock sidue, in W. R. Ellis; and that the plaintiff, as (6007.) to Messrs. Wright, Selby, and Robin-his personal representative, was entitled to the son, on trust to pay the dividends and profits thereof to Frances Bennet for her life; and he further gave to the same trustees all his property in the stocks or funds, called the 41. per cents., 31. per cents. consols, 31. per cents. reduced, and 5l. per cents. navy bank annuities, on trust to pay the said W. R. Ellis the dividends and interest thereof during his life, and after his death-should he have issue of his body, lawfully begotten, male or female-on trust to pay the dividends and interest of said stocks or funds towards the maintenance and education of such issue during minority, and on attaining 21, to transfer the capital of the said stocks or funds to such issue, in the manner directed by the testator in his said will; and as to the 6001. bank stock, before given to Frances Bennet during her life, the testator directed his said trustees, after her decease, to pay and apply the same in like manner as he directed respecting his other stock in the 41. per cents., 31. per cent., and 31. per cents., and 51. per cents. navy bank annuities: and if the said W. R. Ellis should die without issue inale of his body lawfully begotten, in that case the trustees were directed to sell the freehold property before devised to him for life, and to pay out of the proceeds several legacies in the said will mentioned, and to retain to them (the trustees) a legacy of 100l. to each, and also to retain the residue of the proceeds of the said freehold property, on trust to pay, apply, and distribute the same to and for such charitable and other purposes as the said trustees, and the survivor, &c. should think fit, without being answerable or accountable to any person or persons whomsoever for such their disposition thereof: and should the said W. R. Ellis die without issue, male or female, of his body lawfully begotten, in such case it was the testator's will that his said trustees, and the survivor, &c. should-subject to an increased annuity to the said Frances Sir William Horne, Mr. Skirrow, Mr. Lynch, and Mr. Blunt, on behalf of the appellants, argued that they took the fund beneficially, and had complete disposition of it, without being accountable to any person. If the words of the trust were "for charitable purposes,” such a gift would be good. Middleton v. Spicer.a The word "charitable" took away all uncertainty from the gift, and distinguished this case from that of Morrice v. The Bishop of Durham.b But the learned counsel would go further, and insist that the addition of the words "or for such other purposes as the trustees thought fit, without being accountable," &c. gave the appellants complete power over the fund, and conferred on them a beneficial interest therein. The Solicitor-General, Mr. Knight, and Mr. Wyatt, supported the decree of the ViceChancellor, and relied on the Lord Chancellor's decision in the case of Williams v. Kershaw,c given by his Lordship when he was Master of the Rolls. Among the other cases cited, on both sides, were Ommuny v. Butcher, Fowler v. Garlike,e and the cases cited in both these. The Lord Chancellor, having taken time to consider his judgment, said he had not from the beginning entertained any doubt of the propriety of the decree of the Vice-Chancellor ; but as one object of the appeal seemed to him to be to bring under review the late decision a Bro. C. C. 201. 482 Superior Courts: Exchequer. A rule nisi having now been granted, in the case of Williams v. Kershaw, he thought | objection again taken. A case was cited it to be his duty to reconsider the matter, and where the Court, under similar circumstances, to examine again the cases cited, before he had granted a rule nisi, but the rule had never pronounced his decision. His Lordship, hav- been argued. ing referred to the material parts of the will, and to the arguments of counsel, said, no question arose on the devise of the freehold. The first question was, whether the fund, consisting of the personal property, passed to the trustees and executors for their own benefit. They had each a legacy of 1007. under the will. If they were to have the residue of the personalty for their own use and benefit, it was unnecessary for the testator to say any thing about their not being accountable for the disposition of it, for they had the fund already given to them. But the testator, not intending the fund for them absolutely, directed them to apply it to charitable or other purposes, &c. The codicils made it clear that the testator did not intend this fund for the trustees' own use; for by one of them, Mr. Holmes, who was substituted as trustee and executor for Mr. Wright, deceased, was to have legacies of 100%. and 150/., as Wright had; but the testator did not give Holmes any beneficial interest in the residue. His Lordship, after commenting on the cases, said he was clearly of opinion that the gift of the residue of the personalty was not an absolute bequest to the trustees and executors, but was, like the residue of the proceeds of the real property, given in trust; and that it went to the next of kin, who had the life interest in it. He affirmed the decree of the Vice-Chuncellor, but without costs. Ellis v. The Attorney General and others. Westminster. Hilary Term, 1836. Exchequer af Pleas. RECOVERY OF BILL OF COSTS BY ASSIGNEE SIGNED BILLS OF COSTS ACT 2 G. 2, c. The amount of a bill of costs due from u 66 This was an action of debt, brought by the plaintiff as assignee of an insolvent debtor, who was an attorney, for the amount of a bill of costs. The defendant pleaded, never was indebted." At the trial an objection was taken that the bill of costs was insufficient, as it did not shew the Court in which the business charged for was done; but the Court overruled the objection, granting permission, however, to the defendant to move to enter a nonsuit, a verdict having been returned for the plaintiff. A motion was accordingly made, and the Cause was shewn, and it was contended, that as the present plaintiff was only suing as an assignee, he could only make out a bill from the entries which he found in the books of the insolvent, and could not therefore state those minute particulars which otherwise would be required, if the attorney himself were the plaintiff in the suit. The various statutes, referring to bills of costs, did not allude to assignees. The acts 3 James 1, c. 7, and 2 G. 2, c. 23, s. 23, required that all attorneys should give a true bill to their clients or masters, or their assigns, of all charges concerning the suits which they had for them, subscribed with their own hands and names, before they should charge them with the fees and charges, and that they should not commence any suit for the recovery of the amount of the said bill, until one month had expired from the period of its delivery. On the first mentioned act a case was decided, that an executor of an attorney might sue without a signed bill; and it had also been held, that the word "attorney" did not apply to the executor of the attorney, but to the attorney alone; and although a sixth was taken off on taxation of a bill of costs, the executor was not ordered to pay the costs of the taxation. It was true, that in one case where an action was brought by an executor of an attorney, the Court of Common Pleas referred the bill to be taxed; but in another case, the Court had also held, at nisi prius, that the act applied only to an attorney, and not to his executor, and that the latter might recover without proof of a bill delivered, according to the statute. The principle laid down in these cases must also apply here. In this case it was shewn that a bill was delivered, signed by the insolvent, and the only omission complained of was that of the name of the Court in which the business was done. This objection could not prevail. In support of the rule it was urged, that as the act of James required that a true bill of charges should be delivered, no debt accrued until that was done. The case of an executor differed materially from that of an assignee. An executor was positively unable to comply with the act; but the assignee had no such excuse to make. By the Insolvent Act, he was placed precisely in the situation of the insolvent, and had all the debts, &c. transferred to him. The bill could not be said to be a true bill of all the suits and charges, unless the Courts in which those charges were incurred were specified; and as that had not been done, the plaintiff could not know what he was bound to answer. The present rule ought therefore to be made absolute. Parke, B. said, that the act of Geo. 2. was only a personal prohibition on the attorney himself to sue, and an assignee was not within the act. That statute required that attorneys. Superior Courts: Eachequer. 483 should deliver a true bill of their charges be- the nonpayment thereof on its accruing due; fore they should charge their clients. This, and that afterwards, the said second bill was therefore, could not apply to the assignees. indorsed to one Frederick Seagood, to whom With regard to the objection respecting the a sum of money was paid, in full satisfaction form of the bill, the two acts differed on that of the sum of money in the last mentioned bill point. Under the act of James 1, the delivery specified, and all damages sustained by the was sufficient; but it had been held, that an said plaintiff by reason of the nonpayment executor was not comprised within the act of thereof when the same became due and payGeo. 2; because, unless the testator had de-able. And the defendant further said, that livered a bill before his death, the executor the first bill was not indorsed to the said John could not sue at all; a restricted interpreta-Aldridge, in the declaration mentioned, until tion was in consequence put on the words of long after it became due and payable, and the act. It was true that an assignee was not until the said Braithwaite and Jones had reunder the same physical impossibility of com-ceived the second bill. The plea concluded plying with the act, as an executor; but a with a verification. ecutor. different construction of the act would some- Demurrer. That the plea was insufficient times place him in situations of equal diffi- in law, because it did not allege that the said culty. The present case, therefore, fell within | second bill was payable to the order of Braiththe principle laid down in the case of an ex-waite and Jones, or was negotiable; and therefore, that the said Frederick Seagood had no legal right or interest in the bill, and that he was not entitled to receive its amount, or to give any acquittance for the same; and it did not therefore appear that the bill had ever legally been paid or satisfied; and by the plea it was alleged that the money was paid in satisfaction of damages by the plaintiff, by reason of the nonpayment thereof; but it did not appear that the plaintiff was entitled to any Rule discharged.-Lester, assignee, &c. v. damages; and the plea was therefore unintelLazarus, H. T. 1836. Excheq. Alderson, B. said, the bill was clearly good, under the statute of James, and might also be considered so under that of Geo. 2. It was not expressly required by either, that the Court in which the business was done should be set forth; and if it should become material, it might be shewn by extrinsic evidence. The rule must therefore be discharged. The rest of the Court concurred. ligible and informal. Joinder in demurrer. In support of the demurrer it was now subASSUMPSIT ON A BILL OF EXCHANGE BY IN- mitted, that the plea was bad, because it did DORSEE AGAINST ACCEPTOR.-PLEA, A SE- not shew that the second bill was negotiable; and the indorsement to Seagood would be FIRST BILL.-SECOND BILL PAID TO IN- therefore void and useless. Unless the second DORSEE.- DEMURRER.NO ALLEGATION his statement were correct, should have withdrawn the first bill from the hands of Messrs. Braithwaite. bill was negotiable, it would be no satisfaction for the first bill, which was. There was noIn an action of assumpsit on a bill of ex-holder for value received. The defendant, if thing to shew, also, that the plaintiff was not a change by an indorsee against the acceptor, the defendant pleaded that he had given a bill to the persons by whom the first bill was indorsed to the plaintiff, which was paid in full satisfaction of all damages sustained by the plaintiff by reason of the nonpayment of the first bill. It was not stated, however, that the second bill was negotiable. On demurrer, the pleu held sufficient. The Court said that the plea would have been sufficient, even if it had stopped at the averment of the payment of the second bill; but it did more, it alleged that that sum was paid in satisfaction of the first bill, which was not indorsed to the plaintiff until after it became due, and after the second bill had been received in satisfaction of the first. Judgment for defendant.-Lewis v. Lyster, H. T. 1836. Excheq. This was an action of assumpsit on a bill of exchange by an indorsee against the acceptor. The declaration alleged the bill to have been indorsed to John Aldridge, and by him to the plaintiff. The defendant pleaded, in answer to the declaration, that before the bill became due, it was indorsed to several persons, until DISTRINGAS FOR NOT ENTERING COMMON AP it reached the hands of one Chawner, by whom it was presented for payment. Default being made, however, he returned it to Messrs. Braithwaite and Jones, from whom he had received it; and afterwards, before the commencement of this suit, the defendant handed over to them a certain bill of exchange, drawn upon and accepted by the defendant, which they received in full satisfaction and discharge of the sum of money due on the first bill, and of all damages by them sustained, by reason of PEARANCE.SHERIFF'S RETURN OF LEVY. Where a distringas has been issued against a This was an application for leave to enter an appearance for a defendant, a distringas hav In debt, the plea of never was indebted" must be pleaded in the general issue, according to the terms of the rule of H. T. 4 W. 4; and the plea of "never did owe” was therefore deemed bad on demurrer. This was an action in debt, for work and labour done, and money paid. The defendant pleaded that he never did owe" the sum alleged to the plaintiff, or any part thereof, and the plea concluded to the country. The plaintiff demurred specially, that the plea was defective, because it should have alleged that the defendant "never was indebted," according to the rule, of Court of H. T. 4 W. 4, and also, because it was argumentative, inasmuch as that it did not shew positively whether it applied only to the original existence of the debt, or whether it alluded to its continuance. In support of the plea, it was subsequently urged, that the rule was merely directory, and not obligatory. It only provided, that the defendant might plead that he never was indebted in the manner and form in the declaration alleged, &c., but did not absolutely require that precise form of words to be adopted. The plea of "nil debet,” it was admitted, was prohibited; that was in the form that the defendant "did not owe" the sum demanded; but it was contended that the present plea was rather in the new form, and was precisely the same, in substance and meaning, with that form. The words "owe" and "indebted" were convertible terms, and the plea was quite regular, and did not infringe on the rules alluded to. The demurrer could not therefore be supported. Judgment accordingly.-Smedley v. Joyce, H. T. 1836. Excheq. SALE OF LANDS UNDER AN EXTENT.-CON- CONCERNED. In a conveyance of certain lands, sold by the Crown under an extent from the original purchaser to a sub-purchaser, at a less price, before any conveyance was made from the Crown to the former, the Court will not allow the name of the latter to be substituted in the conveyance from the Crown, for that of the former, to save the expense of two conveyances, unless with the consent of all parties concerned. This was an application for permission to substitute the name of a sub-purchaser for that of the original purchaser, in the conveyances of certain property, which had been seized and sold by the Crown, under an extent issued against the defendant. It appeared from the affidavits, that in the years 1822 and 1823, several writs of extent issued against the defendant, for the recovery of certain sums of money due to the Crown, and he was found to be seised in fee of certain property in Berkshire, on an inquisition which had issued. This property was put up to auction by an order of this Court; and, on the sale, one William Hand became the purchaser of certain lots, which, with timber, amounted to the value of 97431. 15s., and that sum was soon after paid into the Bank of England. Subsequently, however, and before any conveyance took place, the property was re-sold to the Rev. Henry Pole, for 85007.; and the present application was, that the conveyances might at once be made out to the latter person, to save expense. Notice had been given to all parties concerned, and on the part of the original purchaser, the words of the act were now pointed out. It provided, that when a purchaser should be found, the conveyance of the lands, &c., decreed to be sold, should The Court said, that a material difference be made to the purchaser, by His Majesty's existed between the issue raised by the two Remembrancer of the Court of Exchequer, forms of plea. This was clearly shewn by a or his Deputy, under the direction of the case recently decided in the King's Bench Court, by a deed of sale, to be inrolled in the Practice Court, where, to a plea of set-off, Court; and after the making and inrolment the plaintiff, in his replication, made use of of such conveyance, the bargainer in the said the new form of "never was indebted," and conveyance, his heirs, executors, administra. under that issue wished to prove, that part of tors, and assigns, should have, hold, and enthe sum claimed by the set-off had been paid.joy the said lands, &c., to his or their own The evidence was refused to be admitted by respective use and benefit. It was urged, that the secondary, before whom the cause was a liberal construction ought to be put on the tried; and on an application to the Court, this act. was held to be a proper direction. The new rules had proscribed only the plea of nil debet, but that still remained the proper form for the replication. An application was then made for time to amend the plea; and the Court consented, on a positive affidavit of merits being produced. The Court observed, that the act appeared to support this argument, as it appeared to contemplate the possibility of the conveyance being made to some one else besides the first purchaser. A case was referred to, where, under similar circumstances, the name of a sub-pur Superior Courts: Erchequer. chaser was allowed to be substituted for that of the original purchaser. On the part of the sub-purchaser, a readiness was expressed to agree to the terms proposed, provided the Court had the power to make the order. It was, however, submitted, that according to the words of the act, the conveyance could only be made to the real purchaser. The usual practice was, to take a conveyance to a trustee, which recited that the latter was a purchaser for the benefit of the real party. In this case, however, it would not be sufficient to state that the trustee was a purchaser for Hand, as two conveyances would then be necessary. The act required, that all monies which should become payable from any purchaser, should be paid, accounted for, and applied 485 Court granted a rule, calling upon him to give security for costs. This was an application for a rule, calling on the plaintiff to give security for costs. It was sworn, that after the defendant was arrested, the plaintiff had removed his goods, and had absconded, to prevent his being apprehended on a charge of bigamy. Notice of this application had been given to his attorney, who, however, declined interfering. The Court ordered a rule nisi, which was subsequently made absolute, no cause being shewn. Rule absolute.-Rogers v. Banger, H. T. 1836. Excheq. towards the discharge of the debt due to the ACTION BY ATTORNEY AGAINST HIS CLIENT Crown, and the expenses incurred in recovering the same, in such manner as should be ordered by this Court. Here another difficulty would arise; for if the name of Pole were given in place of that of Hand, the money, instead of being paid to the Crown for the discharge of the Crown debt, would go to Hand. There was nothing in the act which authorized a conveyance to an assignee. The Court said, that the best way would be to obtain the permission of the AttorneyGeneral, and all parties interested, for the substitution of the name of Mr. Pole for that of Hand. The title, otherwise, might not be secure. Subsequently, this consent having been obtained, an order was made that Henry Pole should be declared the purchaser of the land, &c., in question, in place and stead of William Hand; and on payment of 85007. by the former to the latter, he should be entitled to possession of the land, and to the rents and profits arising therefrom; and it was further ordered, that the tenants on the said land, &c., should pay the rent to the said Henry Pole, on the said payment being made; and that the Remembrancer of this Court, and all proper persons, should join to make conveyances to the said Henry Pole, in lieu of to William Hand; and the sum of 98437. 15s., paid into the Bank of England, should be expressed to be the consideration for the said estate and premises. All title deeds and papers relative to the land, &c., in the hands of William Hand, were also ordered to be given up to Pole; and it was also directed, that the latter should have, use, and take all such further proceedings in this Court, as should be necessary to vest the fee-simple and inheritance in him, his heirs and assigns, &c. Rex v. Rawlings, H. T. 1836. Excheq. SECURITY FOR COSTS.-PLAINTIFF ABSCONDED TO AVOID A CHARGE OF BIGAMY. Proof having been given that a plaintiff had absconded to avoid a charge of bigamy, the FOR COSTS.-DEFENCE,NEGLIGENCE.-CASE AND OPINION OBTAINED FOR CLIENT.-LIEN OF CLIENT. An action being brought by an attorney against his client for costs, and the defence being an allegation of negligence on the part of the plaintiff, the defendant will be entitled to a copy of a case, and an opinion obtained thereon at his instance, or he will be entitled to the original on his paying the costs attendant on the opinion being obtained. A rule nisi had been obtained, calling on the plaintiff to shew cause why he should not allow the defendant to inspect a case, and an opinion given thereon by the Attorney General, under the following circumstances:-The action was brought by the plaintiff, who had been employed by the defendant as his attorney, for costs, which it was alleged were due. The defence, which it was intended to set up, was negligence on the part of the attorney. The opinion, the subject of the present rule, was obtained at the instance of the present defendant by the plaintiff; and it was urged that the defendant had a lien upon it. There was a good defence to the action, but the case and opinion were necessary to establish that defence. Cause was now shewn; and it was urged that as the defendant had refused to pay the costs attendant on procuring the opinion, he surely could not be held to have any lien upon it. The case was similar to one, where an action was brought by ship owners against their broker; and on an application being made by the plaintiffs, that they might be allowed to take a copy of a letter, which had been received by the defendant as broker, and which was on the subject of the cause of action; the Court refused to grant their request, observing that they were merely fishing for evidence. The Court said, that the defendant might want the case for the purpose of shewing the negligence of the plaintiff. Besides, the case and opinion were evidently the property of the client, whether the attorney was guilty of negligence or not. The plaintiff must therefore furnish a copy of the case and opinion at the |