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Superior Courts : V. C. Turner.-V. C. Kindersley.-V. C. Stuart.


Lambert v. Lomas. Nov. 19, 1852. point some person to represent the estate for SUITORS' IN CHANCERY RELIEF ACT.

all the purposes of the suit.

The Vice-Chancellor said, the section reSTAMPS ON PRINTED COPY BILL WHERE ferred only to some persons indirectly interested WRITTEN COPY FILED WITH STAMP.

in the suit, and not to the person to administer Order on Record and Writs' Clerk to receive whose estate it was actually instituted, and

and file printed copy bill pursuant 10 under that an administration ad litem was insufficient,
taking, without additional stamp of 1l. and a general administration must be taken
thereon--the uritten copy filed under the out.
15 8: 16 Vict. c. 86, s. 6, having been duly

Dec. 8. — White v. Cohen — Injunction This was a motion in this injunction case 3

granted to restrain carrying on a poisy trade. for an order on Mr. Murray, the Record and

- 9.- Mayor, Sc., of Basingstoke v. Lord

Bolton - Demurrer to bill allowed, without Writs' Clerk, to file a printed copy of the bill

costs, with leave to amend. without a second stamp of 11, being affixedthe stamp having been duly paid on the written Cur. ad vult.

– 9, 10, 11, 13, 14.- Murray v. Boguecopy.

Amphlett in support. referred to the 15 & 16 Vict. c. 87, s. 12 (printed p. 113, ante), and the

Vire-Chancellor Stuart. 6th General Order of Oct. 25 last.

MʻIntosh v. Great Western Railway Company. The Vice-Chancellor, after consulting the

Nov. 11, 1852. other judges, roade the order as asked. IMPROVEMENT OF JURISDICTION OF EQUITY

ACT. - PRODUCTION OF DOCUMENTS. Dec. 8. — Duffield v. Denny - Inquiry di Order made for production of certain docurected as to evidence.

ments under the 15 : 16 Vict. c. 86, s. 20, - 8.- Van Sandau v. Gurney-Order for upon the afidarit of the defendant's solici. production of documents admitted by defend tor of his belief that the plaintiff had those ants to be in their possession.

documents in his possession - excepting - 8.-Smith vi Hurlbutt- Order for leave such as were privileged, and with liberty to enter memorandum of service of copy bill to the plaintiff to seal up, on oath, such on defendant, and special order for two weeks' parts as were privileged. further time.

This was a motion under the 15 & 16 Vict. - 7, 9. — Cowman v. Harrison Cur, ad. c. 86, s. 20, (printed ante, p. 19, Lote,) on becult.

half of the defendants, who had put in a suffi- 9, 10.-Bridges v. Ramsey-Part heard. cient answer, for the production by the plain

- 10,-- Fitzwilliam v. Kelly-Judgment on tiff on oath of certain documents in his posspecial case as to construction of will.

session. - 13.– Abbott v. Calton-Stand over for Bacon and Stevens in support, on an affida. production of further evidence at Chambers. vit by the defendant's agent of his belief that

- 11, 14.—Hay v. Willoughby Declara- the plaintiff had these documents in his postion that intestate's estate was liable by specialty session. in respect of five shares in banking company. | Russell and Bazalgette for the plaintiff,

contrà, on the ground that, although he had

some of the documents, their production would Vice-Chancellor Kindersley.

occupy much time and create great unnecesGroves v. Lane. Nov. 13, 1852. sary expense, and citing Fiott v. Mullins, EQUITY JURISDICTION IMPROVEMENT ACT.

ante, p. 19.


cited the motion was entirely unsupported by

evidence; and an order was therefore made for GENERAL ADMINISTRATION,

production, except of such documents as were Held, that the order under sect. 44, of the 15 brivilege

5 privileged to be specified by affidavit, and with 816 Vict. c. 86, for the appointment of liberty to seal up, on oath, such parts as were some person to represent the estate of any privileged. deceased party interested in the matters in question, only refers to parties indirectly | M Intosh v. Grect Western Railway Company. interested in the suit and not to an intestate

Nov. 11, 1852. debtor to administer whose estate the suit

U JURISDICTION OF EQUITY IMPROVEMENT was actually instituted ; and held also, that

ACT --ORDER TO TAKE EVIDENCE UNDER a general administration and not an ad

NEW PRACTICE. ministration ad litem to his estate must be

Order made, on defendants' application, for taken out.

the evidence to be taken under the 15 g. 16 In this creditor's suit for the administration Vict. c. 86, and the 39th Order of August of the estate of an intestate debtor, it appeared 7, in a suit relating to mutual accounts, that no administration had been taken out, and although the issue was joined in May last, an order was sought under the 15 & 16 Vict. and one of the witnesses had been examined c. 86, s. 44, (printed ante, p. 37 note), to apo/ de bene esse, under the old practice.

116 Superior Courts: V. C. Stuart.- Queen's Bench.- Common Pleas.-Exchequer Chamber. This was a motion on behalf of the defend

Common Pleas. ants, for the evidence in this suit to be taken Hamilton, appellant ; Bass, respondent. Nor. under the 15 & 16 Vict. c. 86, and the 39th

12, 1852. Order of Aug. 7. It appeared issue was joined FREEHOLDERS' CLAIM TO VOTE. – HOW on May 18 last, and one of the witnesses had YEARLY VALUE OF QUALIFICATION TO BE been examined de bene esse.

COMPUTED. Bacon and T. Stevens in support; Russell Held, that, in computing the annual value of and Bazatgette contrà.

premises as a qualification to tote, the The Vice-Chancellor said, that the present amount of landlord's repairs must be decase, which related to mutual accounts, was ducted from the rent under the 8 Hen. 6, peculiarly within the view of the legislature in c. 7. The decision of the revising barrister framing the statute, and made the order as was therefore affirmed, with costs, disal. asked accordingly.

lowing the claim of 30 persons as 40s. free

holders, where their qualification consisted Dec. 8.-Great Northern Railway Company of premises of the yearly value of 631., but v. Lancashire and Yorkshire Railway Company

on which the annual expenditure was 41. -Injunction granted.

In this appeal from the decision of the re- 8.-In re Midland Union, Burton-upon- vising barrister for the eastern division of Trent, Ashby-de-la-Zouch, and Leicester Rail Cumberland, it appeared that certain premises way Company, exparte Pearson's Executors of the yearly value of 631. were held in fee by Motion refused, with costs, to remove names 30 persons, but that the average expenditure in from list of contributories.

repairs amounted to 41. a year. The claim of - 9.-Grote v. Byng-Application to ap- the owners to vote as 40s. freeholders having point receiver to be made in Court, but at been rejected, this appeal was presented. Chambers where in place of a former receiver. Mellor, Q. C., in support, referred to 8 Hen.

- 9, 10.- Rawlins v. Daglish-Claim dis. 6, c.7; 10 Hen 6, c. 2; 19 Geo. 2, c. 28, s. 5; missed, without costs.

and King v. Bermingham, Burr. Sees, Cas. - 11, 13. -. Morgan v. Holford Cur, ad. 748; Colville v. Wood, i Lutw. Reg. Cas. 483. vult.

S. Temple, contrà, cited Copland v. Bartlett, - 13. – Attorney-General v. Attwood — 6 C. B. 18; 2 Lutw. Reg. Cas. 102; Beamish Stand over.

v. Overseers of Stoke, 2 Lutw. Reg. Cas. 89; – 14.- Colombine v. Penhall; Penhall v. Lee v. Hutchinson, 8 C. B. 16. Colombine - Part heard.

The Court said, the question was, what were

the premises worth, and as it appeared a Court of Queen's Bench.

tenant would only give 591. if he had to repair,

the qualification was insufficient, and the apKipling v. Ingram. Nov. 9, 1852.

peal must therefore be dismissed, with costs. LOCAL PAVING ACTS.-RATE ON OCCUPIER


Tewkesbury, respondent. Nov, 12, 1852. Under the Local Paving Act for St. Luke's,

. REFORM ACT.-QUALIFICATION OF VOTER. Middlesex, (2 Wm. 4, c. xii.) rates were


THERETO. imposed on the occupiers of tenements abutting on streets paved, &c., under the

Held, affirming the decision of the revising former act, 50 Geo. 3, e. exlix. 4 rate

barrister, that the occupation of a cottage made on the occupiers of a house abutting

and garden was not sufficient qualification on the City Road, which was kept in repair

under the 2 Wm. 4, c. 43, s. 27, where the by the tolls taken thereon, was held bad.

cottage alone was of insufficient value, and

the garden was at a distance therefrom of This was a special case. It appeared that

about 60 yards, although rented at one the defendant occupied certain premises adjoin

time and of the same landlord. ing the City Road, which was kept in repair This was an appeal from the decision of the by trustees out of the tolls taken thereon, and revising barrister, on behalf of a elaimant to that he had been rated by the paving commis- vote in respect of a cottage and garden. The sioners of St. Luke's, under the 2 Wm. 4, c. cottage alone was of insufficient value to xlii. s. 6, amending the 50 Geo. 3, c. cxlix. lqualify, and the garden was about 60 yards

Crowder, Q. C., and G. Denman for the therefrom, but they were both rented at one commissioners; Watson, Q. C., Lush, and time and of the same landlord. Hawkins, for the defendant.

Ker contended the occupation was sufficient, The Court said, that the presumption was in referring to the 2 Wm. 4, c. 45, s. 27. the first place against the rate, inasmuch as The Court affirmed the decision of the revisthere was no equivalent given, and it also ap- ling barrister, disallowing the claim. peared that the second act only imposed rates on the occupiers of tenements abutting on

Erchequer Chamber. streets, paved, &c., under the 50 Geo. 3, c. cxlix., whereas the City Road was paved by

Wesson v. Allcard. Nov. 30, 1852. trustees of the turnpike road, and the defend BILL OF EXCHANGE. - INDORSEE AGAINST ant was therefore entitled to judgment.



Superior Courts: Exchequer Chamber. -Analytical Digest of Cases. Held, affirming the decision of the Court of of which 14 days' notice had been given to all

Exchequer, that the indorsee of a bill of ex- the creditors, including the drawer of the bill change was not barred of his debt by a plea of exchange sued on, and stating that he did of the bankruptcy of the acceptor where he, not know the bill had been indorsed to the had not received notice of the first sitting plaint:ff, or that he was the holder thereof. under the 12 f. 13 Vict. c. 106, although Watson and Pearson in support; Hugh notice had been given to the drawer. Hill and Hawkins, contrà. This was an appeal from the Court of Ex- The Court said, that the plaintiff was not chequer, allowing a demurrer to the plea, to barred of his remedy, because he had received this action by the indorsee against the acceptor no notice of the first sitting appointed by the of a bill of exchange, setting out that he was a | Bankruptcy Court, as required by the 12 & 13 trader, and had presented a petition to the Vict. c. 106, and affirmed the judgment of the Bankruptcy Court under the 12 & 13 Vict. c. Court below accordingly. 106, and that the Court had appointed a sitting,



House of Lords.

parts of his prayer, and retain something in

significant merely to save his appeal from disAPPEAL.

missal. Anstruther v. East of Fife Railway 1. Competency.---Pleading.Dilatory defence. Company, 1 Macq. 98. -A plea which does not merely raise an objection to a particular form of proceeding, leav

BANK ing it to the plaintiff to proceed in a different Agreement of surety for conduct of clerk.form at another time, but which, if allowed, Discharge by fresh arrangement.-A. became entirely bars the plaintiff from his remedy, is a surety for B.'s conduct as a clerk in a bank. peremptory, and not a dilatory, plea, within B. was subsequently appointed to a better the 6 Geo. 4, c. 120, s. 5, and a decree thereon

situation in a branch of the same bank, and A. may be subject of appeal to this House. Geils

extended his suretyship to this ne v situation. v. Geils, 3 H. of L. 280.

B.afterwards, while remaining in the same situa2. Petition to dismiss for incompetency. — tion, undertook, on having his salary raised, to Right to begin.-Costs. Where a petition to

become liable to one-fourth of the losses on dismiss an appeal for incompentcy has been discounts. No communication of this new ardirected by the Appeal Committee to be argued rangement was made to A. B. allowed a cusat the bar of the House, the counsel for the tomer considerably to overdraw his accounts, petitioner is entitled to begin.

and thereby the bank lost a sum of money : The petition was dismissed. but the costs Held, that the surety could not be called on to were reserved. Geils v. Geils, 3 H. of L. 280. make good this loss, though it fel

make good this loss, though it fell within the 3. Questions of law to the Judges. - This terms of the original agreement, as the fresh House is at liberty, without regard to the form arrangement was the substitution of a new of an appeal, or the points raised upon it, to agreement for the former one, and A. was put questions of law to the Judges. Brighé v. thereby discharged. Bonar v. Macdonald, 3 Hutton, 3 H. of L. 341 ; Hutton y. Bright, ib. H. of L. 226. 4. Regularity of.- Right to begin.- When

BURGH CUSTOMS. it is ordered that counsel be heard on a Bridge customs. - Exaction of tolls from question as to the regularity of an appeal, the railway companies. — Certain royal grants party objecting has the right to begin. Geils authorised the Magistrates of Linlithgow to v. Geils, 1 Macq. 37.

levy certain tolls and customs. These held to Cases cited : Gray v. Forbes, 5 CI, & F. 363: demandable from the Railway Company. On

M'L. & Rob. 345 ; Bald v. Kerr, Shaw & appeal, the cause ordered to be remitted, with M.L. 47.

directions for a “hearing in presence,” and 5. Petition against receiving.-Case in which with liberty to open up the record, and to before the appeal was received a petition was amend the pleadings. Opinions of the 13 presented by the party in possession of the Scotch Judges upon the question, how far, judgment of the Court below, praying that and in what sense, immemorial usage is to be such appeal should not be received, inasmuch taken as explanatory of a charter from the as the interlocutor was one repelling a prelimi- Crown; and how far, and in what sense, a connary or dilatory defence without leave obtained sideration is necessary to render such charter to appeal. Report by the Appeal Committee effectual. that the appeal ought to be received, and order Position of the record consequent on the made by the House accordingly. Warrender remit. Edinburgh and Glasgow Railway Comv. Warrender, 1 Macq. 43.

pany v. Magistrates of Linlithgow, 1 Macq. 1. 6. Withdrawal of material parts of prayer at Cases cited : The Flesber's case, Morr. 10,886; hearing. The House will not, at the hearing, Brett v. Beales, 1 Moo. & M. 416; 10 Barn. allow an appellant to withdraw the material & Cr. 508 ; Duke of Hamilton's case, 7 Bell, 1


Analytical Digest of Cases : House of Lords.

CREDITORS. Action notwithstanding forfeiture and cancel. Legal mortgagees and specialty creditors. lation of shares. — Notwithstanding the for- Corenant. — Trustees for Crown. — C. & Co. feiture and cancellation of shares, and the issu- were legal mortgagees and specialty creditors ing of new ones, the right to recover, in an for a sum of 30,000l, on Y.'s estate. Certain action for calls, held to remain unimpaired in official persons acting as trustees for the Crown the company. Inglis v. Great Northern Rail-paid off this debt, and received an assignment was Company, 1 Macq. 112.

of the mortgage, and of a covenant therein Cases cited : East Lancashire Railway Company contained with liberty to sue upon it, in trust

v. Croxton, 5 Excb. 287; Belfast, &c., Rail. for the Crown. way Company v. Strange, 1 Exch. 739, Great Held, that the Crown was legal mortgagee Northern Railway Company, v. Kennedy, 4 and specialty creditor for the 30,0001. origiEsch. 417.

nally due to C. & Co. Attorney-General v. COMPANIES' CLAUSES CONSOLIDATION ACT. Cox, 3 H. of L. 240; Pearce v. Attorney

Register of shareholders.--By the Companies' General, ib. Clauses' Consolidation Act, the book contain

DEFENCE ing the register of shareholders is required to be authenticated by the seal of the company;

Preliminary.--A defence which extinguishes but this “book” may consist of a series of vo

la demand, or puts an end to the cause of lumes, in which case it will be sufficient if the

1 action, though it may be preliminary, is not seal be affixed to the last; provided there be a

re bene dilatory, but peremptory. Geils v. Geils, i reference to the preceding ones, so as to iden."

| Macq. 36. tify and connect them together. Inglis v.

See Appeal, 1. Great Northern Railway Company, 1 Macq.


1. Costs.--Reversal of interlocutor, except as COMPROMISE.

to costs.-In a suit for a divorce a mensá et Of doubtful rights. Title paramount, - thoro, the wife obtained judgment in the Court Upon a compromise of doubiful rights, a below, with costs. That judgment was rethird party cannot come in and claim the versed by the Lords, on the ground that the fruits of that compromise by a title paramount. remedy sought was not the proper one; but Lord Advocate for Scotland v. Humilton, 1 the interlocutor was allowed to stand so far as Macq. 46.

it gave the wife the costs in the Court below. CONSTRUCTION OF ANCIENT STATUTES.

| The wife, however, was not allowed the

costs of the appeal. Paterson v. Paterson, 3 Several statutes on same subject.-Ancient H. of L. 308. statutes are to be construed with reference to 2. A mensá et thoro.- General principle. the state of things at the time of their passing. Neglect, silence, shunning the wife's company,

It is a rule that several statutes on the same and declarations by the husband that he will subject are to be read as one statute. M Wil

never cohabit with her, do not constitute that liam v. Adams, 1 Macq. 120,

“ cruelty and maltreatment,” in respect of CONTRIBUTORIES.

which the law will grant to the wife a divorce Who are ?_Contract with creditor.-Con-1“

a mensá et thoro. tributories are those only who have contracted,

Where, in a case of this sort, the Court of by themselves or agents, with a creditor, or

d; Session had pronounced for a divorce, the who have agreed to indemnify or repay, in

Lords reversed the interlocutor. part or in all, those who have contracted with

Actual personal violence, or the immediate the creditor on their own account. Bright v.

menace of it, is not the only ground of mal. Hutton, 3 H. of L. 341; Hulton v. Bright, ib.

treatment in respect of which such a divorce

V. bright, ib. will be granted. See Provisional Committee-man.

Qucere, whether constant revilings and accosts.

cusations of all sorts of crimes made, and Against the Crown.-Refusal of the House falsely made, before friends and servants, to award costs against the Crown.

would constitute a ground for such a divorce. State of the authorities regarding the rule. The general principle of the law as to dithat the Crown neither pays nor receives costs. vorce a mensá et thoro is the same in England Lord Advocate for Scotland v. 'Hamilton, il and Scotland. Macg. 46.

But it seems that a special principle exists And see Divorce, 1; Exceptions; Will, 1. in the law of Scotland, which permits a divorce

for a wilful desertion continued for four years. COUNSEL.

Paterson v. Paterson, 3 H. of L. 308. Where two respondents having separate in. terests.- Where, in an appeal, there were two

Cases cited in the judgment: Evans v. Evans, 1 respondents, having distinct interests, the

Hagg. Cons. Rep. 69; Colquhoun v. Colqu.

boun, Mor. Dict., vol. 15, app. Husb. & W. House allowed two counsel to be heard for

pt. 1, case 5, p. 10; Duke of Gordon's case, each.

ib. vol. 14, case 112, p. 5,902; 1 Fownf. 773; Proper course in such a case. Parish of Letham v. Letham, 2 Shaw & Dunl. 284; South Leith v. Allan, 1 Macq. 93.

Shand v. Sband, 10 Shaw & D. 384.

Analytical Digest of Cases: House of Lords.

119 3. In Scotland after divorce in England.-land, where the wife instituted a suit for diPlea in bar.-Upon a suit in Doctors' Com-vorce a vinculo. The husband pleaded the mons by the husband against the wife, for re-proceedings in the Arches Court as a bar to stitution of conjugal rights, she puts in a re- further proceedings in Scotland. sponsive allegation charging him with adultery, Held, that this plea raised a peremptory or and praying sentence of divorce a mensá et substantial defence, and that a judgment thoro. Such sentence accordingly pronounced thereon might be made the subject of appeal by the Court of Arches. She then institutes to this House. Geils v. Geils, 3 H. of L, 280. proceedings in the Court of Session in Scot

INJUNCTION. land for a divorce a vinculo. Plea in bar, that she has already obtained redress. This plea! Or interdict against railway company.-06repelled by the Court below, and leave to ligation to complete. --Landowner.-Affirmance appeal not given. Appeal taken nevertheless. I of a refusal to grant an injunction or interdict Objected to as incompetent, under the 6 in a case where it appeared that a judgment Geo. 4, c. 120, s. 5. Right of appeal allowed. I negativing the right had been pronounced by Geils v. Geils, 1 Macq. 36.

the Court below, in an action of declarator

brought after the refusal of the injunction. EXCEPTIONS.

Quære, whether a landowner, having proOverruled. - Costs. This house, in over-perty along the line of a railway, for the execuruling exceptions which had been allowed in tion of which an act has been obtained, but in the Court below, but which ought to have pursuance of which act nothing has been done, been overruled there, gave the costs in the can compel performance of the work. Court below. Attorney-General v. Cox, 3 H.] Quære, whether he can prevent the company of L, 240 ; Pearce v. Attorney-General, ib. from asking Parliament for an act of dissolu

tion. Anstruther v. East of Fife Railway EXECUTOR.

Company, 1 Macq. 98. Residue.- Trust. - A testator devised “all |

JUDGE'S OPINION. my estate, both real and personal to L. E., his executors, administrators, and assigns, to and

Practice where one of the Judges differs in for the several uses, intents, and purposes fold | opinion.--The Judges were required to answer lowing, that is to say;" and then, after speci

a question put by the House. One of them fying various objects of his bounty, appointed

ated differed from the rest. The opinions of the “the said E. E. executor of this my last will

will majority were stated by one of their number, and testament." The trusts of the will did not and, in the statement, the principle on which exhaust the estate.

the dissentient Judge formed his opinion was Held, affirming a decree of Lord Chancellor set forth to his sa

set forth to his satisfaction. The House did Cottenham (2 Phill. 793: 15 Sim. 568), that not require him to state his reasons at length. E. E. did not become entitled, for his own

un Salmon v. Webb, 3 H. of L, 510. benefit, to the personal estate undisposed of,

JUDGMENT. but was a trustee thereof for the widow and Alteration of former.- Quære. whether this next of kin of the testator, according to the House, like any other Court of Justice, may, Statute of Distributions. (Dawson v. Clark, 18 in a subsequent case, overrule a previous deVes. 247, commented on, and Lord Eldon's cision of its own. Bright v. Hutton, 3 H. of opinions adopted).

L. 341; Hutton v. Bright, ib. The rule in such a case is, that where there appears a "plain implication, or strong pre.

JURY. sumption," that the testator, by naming an Challenge of juryman.-Town councillor. executor, meant only to give the office of exe- Irish Jury Act.-A town councillor is, by the cutor, and not the beneficial interest, the per- 3 & 4 Vict. c. 108, disqualified from being a son named shall be considered a trustee for the special juryman. The name of a town counnext of kin of the undisposed surplus. Ellcock cillor stood on a special jury list after it had p. Mapp, 3 H. of L. 492.

| been reduced. HUSBAND AND WIFE.

Held, that under the Irish Jury Act, 3 & 4

Wm. 4, c. 91, he was liable to challenge for Plea of proceedings in Arches Court in bar this disqualification, when about to be sworn. of suit in Scotland for divorce a vinculo.-A The right of challenge against a juryman is Scotchman was married in England to an a Common Law right, which cannot be taken Englishwoman, and then returned to Scot- away, except by the express terms of a Statute, land, where he was domiciled. Some years and quære, whether it is taken away by the 3 & afterwards, the wife quitted Scotland, and re- 4 Wm. 4, c. 91, except in cases where corpoturned to England, where she lived separate rate bodies are parties, and kindred or affinity from her husband. He came to England, and with a member of the corporate body is the instituted proceedings in the Arches Court for ground of challenge, a restitution of conjugal rights. The wife, in It is not taken away by the effect of the 3 & her responsive allegations, charged him with 4 W. 4, c. 91, in respect of a disqualification adultery, and on that charge prayed for a di- created since that Statute. vorce a mensá et thoro. Judgment was given Where a challenge in respect of such disin her favour. The husband returned to Scot-qualification was made after reducing a special

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