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Superior Courts: Lords Justices.-Rolls.

135 Lords Justices.

| Dec. 17. - In re Lougher-Appeal allowed Maxwell v. Maxwell. Nov. 3, 4, 1852.

|from Mr. Commissioner Bere."

- 17.- Esparte Broadhurst, in re BroadWILL.-CONSTRUCTION.-DESCENT OF ES-lhurst- Decision of Mr. Commissioner Daniell TATES NOT PASSED TO HEIR.-ELECTION. reversed. A testator, resident in England but having - 18.-In re Pennant and Craigwen Conheritable securities in Scotland, by his will, solidated Land Mining Company, exparte Fenn dated in 1821, and executed so as to pass -Order of Master and Vice-Chancellor Stuart real estate according to the English, but discharged. not according to the Scotch Law, devised - 20.-In re Midland Union, Burton-uponall his real and personal estates whatsoever Trent, Ashby-de-la-Zouch, and Leicester Railand wheresoever, and whether in possession way Company, exparte Pearson's executorsor in reversion, on trust to his wife for Names to be placed on list of contributories. life, with remainder to his children: Held, - 20, 21.-Foley v. Smith-Plaintiff held affirming the decision of the Master of the to be a creditor of defendant and order as to Rolls, that the eldest son, to whom the costs. heritable securities passed by the Scotch - 21.-In re Probyn-Order for recogLaw, was not put to his election, -the will nizances of committee of lunatic to be vacated. not exhibiting the least intention to give — 21.-Bowen v. Price-Cur. ad, vult. or affect any property which it was not

adapted to pass. By his will, dated in 1821, the testator, Mr.

Master of the Rolls. Peter C. Maxwell, devised as follows:-“By Wittinshaw v. Jones. Nov. 25, 1852. virtue of every right, power, and authority, JURISDICTION OF EQUITY IMPROVEMENT enabling me in this behalf, I give, devise, and bequeath unto and to the use of” the trustees

ACT.-ORDER UNDER S. 44.--DEATH OF

DEFENDANT. therein named, “all my real and personal estates whatsoever and wheresoever, and whether

Held, that the Court has not power under the in possession or reversion, upon trust” for his

15 & 16 Vict. c. 86, s. 44, to direct a suit wife for life, with remainder to his children.

to be prosecuted in the absence of the deThe testator was a Scotchman, but was domi

fendant's legal personal representative, or ciled in England, and possessed heritable se

to appoint a person to represent the estate. curities in Scotland. The will was in the

This was an application under the 15 & 16 English form, and executed and attested so as Vict. c. 86, 8. 44, for leave to prosecute this to pass real estate, but it was insufficient ac- suit in the absence of the legal personal reprecording to the Scotch Law to pass the heritable sentative of the defendant, Henry Thomas securities, which therefore descended to the Jones, or for the appointment of a person to eldest son. The Master of the Rolls having, represent the estate. on a special case, held that the son was not! Steere in support, put to his election, this appeal was presented.,

" The Master of the Rolls said, he did not

think the case came within the Act, but he Anderson and Fleming in support; R. thin Palmer and Bagshawe for the eldest son. I would consult the other Judges, and if he did contrà; Witham for the trustees.

not mention it again, the application must be The Lords Justices said, that the mere ge- considered to be refused.' nerality of the terms of a gift was not suffi. cient to create a ground of inference that it James v. James. Dec. 18, 1852. was meant to extend to property incapable of passing by the instrument. In the present

IMPROVEMENT OF JURISDICTION OF EQUITY case, the will did not exhibit the least intention

ACT.-SWEARING ANSWER BEFORE MASto give or affect any property which it was! TER EXTRAORDINARY. not adapted to pass, and the heir-at-law was The answer, which is directed by the 21st not therefore put to his election, and the ap section of 15 & 16 Vict, c. 86, to be sworn peal must be dismissed.

before a Master Extraordinary in Chan

cery, held necessary to be sworn before a Dec. 16.-Shrewsbury and Birmingham Rail solicitor not concerned for the defendant. way Company v. Birmingham, Wolverhampton,

In this case, the defendant's answer had been and Stour Valley Railway Company and others

sworn before a Master Extraordinary in Chan-Appeal dismissed, with costs.

cery under the 15 & 16 Vict. c. 86, s. 21.2 - 16.-Little v. Newport, Abergavenny, and Hereford Railway Company-Stand over. - 16.-In re North of England Joint-Stock

| The case was not again mentioned.

| ? Which enacts, that “the practice of the Banking Company, exparte Bartram and another - Appeal from Vice-Chancellor Stuart said

said Court, of issuing commissions to take dismissed with costs.

| pleas, answers, disclaimers, and examinations - 16.-Clegg v. Fishwick-Order of Master in causes and matters pending in the said of the Rolls discharged by consent.

Court shall, with respect to pleas, answers, - 16. 17.-Jones v. Beach-Appeal allowed I disclaimers, and examinations taken within the from the Master of the Rolls.

* Ljurisdiction of the Court, be, and the same is,

ented

136

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

Mr. Berrey, the Clerk of Record and Writs, v. Coles, 6 Hare, 517; Wright v. Maunder, 4 had objected to receive it upon the ground of Beav. 512. its having been taken before the defendant's Rolt and Bevir for the defendant. own solicitor.

The Vice-Chancellor said, that the clause to Rasch now applied accordingly for the direc- sell within five years was directory only, and tion of the Court.

that the plaintiffs could execute the trust, notThe Master of the Rolls said, that the an- withstanding that period had elapsed, and were swer should be taken before an independent therefore entited to a decree for a specific persolicitor.

formance.

Dec. 15.—Congreve v. Palmer-Cur. ad. vult. Dec. 15.-Home v. Brown-Injunction dis

- 15.-Creemer v. Costerton-Judgment solved. for plaintiff and order for appointment of new - 15. - In re Morley's Trust - Vesting trustee.

order under the 13 & 14 Vict. c. 60. - 15.-Gray v. Austin-Judgment on con- – 16.—Cowman v. Harrison—Judgment on struction of will.

construction of will. - 16.-Norris v. Stuart-Stand over for – 17.-Barham v. Earl of Clarendon-Pertrial of action at law.

sonal estate held liable in exoneration of realty. - 17.-James v. James-- Inquiry directed - 18.-De Balinbard v. Bullock-On adas to share of deceased partner and for account. ministration claim, inquiries directed as to next

- 18.-Walker v. Mower-Judgment on of kin, and for accounts to be taken at Chamconstruction of will.

bers–the Judge to direct as to service of - 18.- Thomas v. Thomas - Cestuis que parties. trustent held sufficiently represented by trus- | – 20.- Harley v. Harley-Cur, ad. vult. tees in creditors' suit.

- 21.-Warwick v. Cocks-Common order - 20. — Attorney-General v. Hall - Part to dismiss bill by consent. heard.

- 21.-Ewington v. Fenn-Application re- 21.-Slater v. Dodd-Order approving fused for direction to Master to issue his certiof advance by trustees to husband on bond ficate under the 18th Order of April, 1850, but with two sureties.

leave given to file supplemental claim. - 21. - Bailey v. Wyche - Injunction - 21.-Moneypenny v. Baker-Part heard. granted on proof of service of notice of motion, but order for receiver refused.

- 21.-Yeoman v. M Gill and another-I. Vice-Chancellor Kindersley. Injunction granted on payment of money into In re Dover and Deal Railway Company, exCourt.

parte Beardshaw. Nov. 11, 1852.

RAILWAY COMPANY. - ABORTIVE UNDERVice-Chancellar Turner.

TAKING.-WINDING-UP ACTS.-CONTRIPearce v. Gardner. Dec. 20, 1852.

BUTORY.

A circular was sent by the directors to the SPECIFIC PERFORMANCE OF CONTRACT.

allottees containing an express undertaking TRUSTEES FOR SALE WITHIN FIVE YEARS,

to return the deposits if the act were not WHERE PERIOD ELAPSED.

obtained, and a further circular was afterA testator, by his will, directed his trustees

wards sent requesting them to attend in to sell, with all convenient speed and within person or by proxy a meeting for the purfive years from his death, his estate : Held, pose of expressing confidence in the directhat this clause was directory only, and tors, and stating that it was necessary to that the trustees might enforce the specific obtain an act in order to secure the experformance of a contract which had been penses guaranteed by a rival company : entered into after the five years had ex Held, reversing the Master's decision, that pired.

the appellant was not liable as a contribuIn this claim to enforce the specific perform tory on the ground of having created a ance of a contract entered into in July, 1852, fresh contract by sending a proxy to the it appeared that the plaintiffs were trustees for meeting. sale under a will, dated in 1846, of a testator, This was an appeal from the decision of the who directed them, with all convenient speed Master placing the name of Mr. Beardshaw on and within five years, absolutely to sell and the list of contributories to the above company dispose of his estate.

in respect of 200 shares. It appeared that a Campbell and Bright, for the plaintiffs, cited circular had been sent to the appellant with Whitchcot v. Souch, 1 Chanc. Rep. temp. Car. the other allottees, containing an express un2, 97; Chambers v. Howell, 11 Beav. 6; Cole dertaking on behalf of the directors to return

the whole of the deposits in case the act were hereby abolished; and any such plea, answer, not obtained. A second circular was afterdisclaimer, or examination may be filed with-wards sent requesting the allottees to attend out any further or other formality than is re- personally or by proxy a meeting for the purpose quired in the swearing and filing of an affi- of expressing confidence in the directors, and it dayit.”

was stated that in order to secure the expenses Superior Courts : V. C. Kindersley.--V.C. Stuart.- Queen's Bench. 137 guaranteed by the South Eastern Railway! Dec. 21.--Sharpe v. Blondeau-On order for Company, it was necessary for the directors to leave to serve copy bill upon defendant abroad, obtain an act. The appellant appointed a endorsement directed to be altered to 14 inproxy, and he had recovered at law the re-stead of eight days. mainder of his deposits.

I — 21.-King v. Mullins-Motion to dissolve Malins and Smale in support; Glasse and injunction refused, with costs. Martindale, for the official manager, contrà. — 21.-White v. Cohen-Injunction refused,

The Vice-Chancellor said, that there was an with liberty to bring action. express agreement to return the deposits in case the act was not obtained, and the subsequent conduct of the appellant in signing the

Vice-Chancellor Stuart. proxy did not render him liable under the cir

Grote v. Byng. Dec. 9, 1852. cumstances stated in the circular of its being APPOINTMENT OF RECEIVER. – APPLICAnecessary to carry out an arrangement with the South Eastern Railway Company, and the

TION FOR. -PRACTICE. appeal must therefore be allowed.

Held, that an application for the appoint

ment of a receiver in the first instance

should be made to the Court, but where Scorey v. Thompson. Dec. 20, 1852.

only to supply a vacancy, at Chambers. SPECIFIC devise.- CONSTRUCTION.- PRO- This was an application for the appointment MISSORY NOTE.

of a receiver. J. S. devised the income of his property and Bagshawe in support. effects, which he should leave in the Cape of

The Vice-Chancellor, in making the order, Good Hope, to his wife for life: Held, that said, that where a receiver was sought to be the devise passed a promissory note given appointed in the first instance, the motion for by a party resident there at J. Si's death, the purpose should be made in Court, but

although it was payable in London. where only to supply a vacancy by death or THE testator, James Scorey, by a codicil to otherwise, the application should be at Chamhis will, dated in June, 1847, devised all the income of his property and effects, of what nature and kind soever, which he should leave in Dec. 15.–Fallows v. Lord Dillon-Motion the colony of the Cape of Good Hope, to his wife refused, with costs, for appointment of receiver.

· life, with remainder to his children in egnall - 15.-Hextall v. Cheatle-Leave to deshares. It appeared the testator at his decease fendant to cross-examine plaintiff viva voce beresided at the Cape, and a question arose. Jfore one of the examiners. whether a promissory note as follows:-“ Lon-1 - 16.-Gregory v. Atkinson-Decree in addon, Sept. 1845, 500l. Seven years after date I promise to pay James Scorey, Esq., or order! – 18.-Morgan v. Holford-Judgment on 5001., with interest from the date hereof at the special case as to construction of will. rate of 41. per cent. per annum, payable quar- — 17, 20. —Colombine v. Penhall; Penhall terly, the said sum to be paid before the said v. Miller ; Same v. Elwin-Part heard. term of seven years, at my option. Payable at! - 21.-Bryson v. Warwick and BirmingJ. Boyers, St. Michael's Alley, Cornhill. Wm. Iham Canal Company-Order on defendants to Falconer,'--passed under the codicil as effects produce agreement to be stamped, on payment at the Cape. Mr. Falconer was also resident of duty and penalty by plaintiff. there. J. Russell and Martelli for the widow; Gif

Court of Queen's Bench. fard for the infant children; Selwyn for Mr. Falconer; Druce for the defendant.

Regina v. Judge of Dorsetshire County Court. The Vice-Chancellor said, that as the debtor

Nov. 23, 1852. upon the note was resident at the Cape, at the COUNTY COURT ACT. - PROHIBITION. time of the testator's decease, it must be con- TOLLS FOR PASSING HARBOUR.-—"TITLE.” sidered as property at the Cape, and therefore passed under the codicil.

A rule for a prohibition, under sect. 58 of the

9 & 10 Vict. c. 95, was made absolute to Dec. 15.— Brown v. Tuckett — Injunction

restrain the further proceeding with a

plaint to recover back the amount paid granted. - 15, 16.--Smith v. Swansea Dock

under the 32 Geo. 3, c. 74, for tolls to

Company-Bill dismissed, without costs.

maintain Ramsgate Harbour, where a ques18.– Frizwell v. King - Petition dis

tion was raised, whether the plaintiff's ship missed, without costs.

was liable to pay on her voyage home from - 20.-In re Banwen Iron Company-Stand

Memel to Poole, as well as outwards.

This was a rule nisi for a prohibition, grant- 21.-Robinson v. Hewetson-After a pe-ed on Nov. 3 last, on the defendant, under the tition for payment of a legacy had been filed 9 & 10 Vict. c. 95, s. 58, from proceeding with and stamped the petitioner married, held that the plaint of Adey v. The Master of the Trinity no new stamp was required under s. 53 of the House, which was brought to recover back the 15 & 16 Vict. c. 86.

sum of 11. 48., which the plaintiff had paid the

Over.

138 Superior Courts : Queen's Bench.-Common Pleas.-Exchequer.-Analytical Digest. defendant for toll, under the 32 Geo. 3, c. 74,||

Court of Erchequer. for the maintenance of Ramsgate Harbour. Leveroni v. Drury. Nov. 8, 16, 1852. The question was, whether the plaintiff was

LIABILITY OF SHIP-OWNERS AS COMMON liable to pay again on his return from Memel

CARRIERS FOR DESTRUCTION OF GOODS to Poole, or only once on his yoyage out.

BY VERMIN.-BILLS OF LADING.
Barstow showed cause ; Bramwell and
Willes in support.

Cheeses belonging to the plaintiff were deThe Court said, that as the title to the toll stroyed by rats, on the voyage from Genoa embraced those cases in which its existence was

to London, in the defendants' vessel. The disputed as well as the claim thereto, the rule

bills of lading, signed by the captain, confor a probibition must be made absolute.

tained merely a statement that the goods had been received, and were to be delivered

safely. The defendants, it appeared, kept Common Pleas.

cats and set traps to guard against the Lambert, appellant; Overseers of New Sarum,

casualty : Held, that they were neverthe

less liable in the absence of an express conrespondents. Nov. 12, 1852.

tract, as common carriers, to the loss susREGISTRATION OF VOTERS. -- NOTICE OF

tained by the plaintif. OBJECTION.--SUFFICIENCY OF.

This was a motion for a rule nisi for a new A notice of objection to the name of a claim

trial or to reduce the damages in this action, ant to vote for the southern division of W., oh

W: which was brought to recover compensation was returned in the list of objections to for damages done to a quantity of Parmesan voters for the parish of St. T., where he

cheese, shipped on board the defendants' resided, in the southern division of W.:1

: schooner, Ann Sophia, at Genoa. It appeared Held, that the notice was sufficient under that the

that the injury, as to five of the tubs, was the 7 & 8 Vict. c. 18, s. 101.

caused by rats, and that the bills of lading, This was an appeal from the revising bar- signed by the captain, merely contained a staterister. The appellant claimed to vote for the ment that the goods, description unknown, had Southern Division of Wilts, and the notice of been received, and were to be delivered safely objection was returned in the list of objections at the port of London. The defendants reto voters for the parish of St. Thomas (in sisted the claim, on the ground that all precauwhich he resided), Salisbury, in the southern tions had been taken by keeping cats and setdivision of the county. The notice was ob- ting traps to guard against vermin. On the jected as insufficient, and calculated to mislead. trial before Martin, B., the plaintiff obtained a

Warren, Q. C., in support of the appeal from verdict. the revising barrister, who had held it was suf- Crowder in support of the motion. ficient, cited Allen v. House, 7 M. & G. 157;

Cur, ad, vult. 8 Scott, N. R. 987; 1 Lutw. Reg. Cas. 255 ; The Court said, that the defendants' liability Eidsforth v. Farrer, 4 C. B. 9; Woollett v.Jas common carriers was not affected by any exDavis, 4 C. B. 115.

ceptions in the case of rats, and that as it was The Court said, that the defect was cured not imported into the contract, the defendants by the 7 & 8 Vict. c. 18, s. 101, and dismissed were bound to make the loss good, even though the appeal with costs.

they had done their best to guard against it, and the rule would therefore be refused.

ANALYTICAL DIGEST OF CASES,

REPORTED IN ALL THE COURTS.

POOR LAW AND MAGISTRATES' It was received into the union workhouse, and
CASES.

there maintained, chargeable to S. On its be

ing taken before two aldermen, they urged the CERTIORARI.

guardians of the union to undertake the prose1. Defects in rule for certiorari, not retro-cution of the person who appeared to have ill spective.-Stat. 12 & 13 Vict. c. 45, s. 7, which used the child. The guardians did so : the enacts, that no objection on account of any defendant removed the case into this Court by omission or mistake in an order shall be al- certiorari, and was convicted. lowed on return to a certiorari, unless specified Held, that the guardians were entitled to the in the rule for issuing the certiorari, does not costs of the prosecution, under stat. 5 & 6 W. apply where the rule for a certiorari has been & M. c. 11, s. 3, having prosecuted, as officers, made before the time fixed for the statute on account of a fact that concerned them, as coming into operation. Regina v. Inhabitants officers, to prosecute. Regina v. Kenealy, 15 of Crowan, 14 Q. B. 221.

Q. B. 1060. 2. Il treatment of child.-Costs on removal by certiorari.—A child, six years old, was found

Case cited in the judgment; Regina v. Earl of

Waldegrave, 2 Q. B. 341. wandering in the parish of S., within the union of W., in London. It appeared to be destitute,

COLLECTOR OF RATE. and to have been assaulted and very ill used. Bond for payment.-In whose name action to

Analytical Digest of Cases : Poor Law and Magistrates' Cases. 139 be brought.-An Act of Parliament, after ap. Held, that this was no answer to the claim pointing a number of persons guardians of the of exemption : the provision not appearing by poor of a parish, and declaring that seven the case to be a pretext for accumulation. Reshould be a quorum, enacted, that the guar. gina v. Overseers of Manchester, 16 Q. B. 449. dians should sue and be sued in the name of 2. Premises, called the Portico, were held their treasurer; and that no action that might in trust for a society consisting of the subbe brought by them or any of them in the scribers for the time being, during such time name of the treasurer, should abate, &c. as they should continue members, pay their

A bond for the due performance of a poor subscriptions (21. 10s. per annum), and conrate collector's duties having been executed to form to the rules. Their number was 400. seven of the guardians, held that an action Books and newspapers were provided out of upon the bond was well brought in the name the annual subscriptions. The portico conof the treasurer. Kingsford y, Dutton, 1 L. sisted of a library of 15,000 volumes on scienM. & P. 479.

tific and general subjects, for reference and LITERARY AND SCIENTIFIC SOCIETIES.

for circulation among the subscribers ; a read

ing-room, containing magazines, reviews, and 1. Rating.- Poor-rate was assessed on part other periodical works; and a news-room, in of a building occupied by a society, the rules which were the newspapers, gazettes, reports of which declared, that its purposes were “the of the markets, notices of sales, &c. promotion of literature, science, and the arts." Held, that the society was not exempt, by The Society was partly supported by annual Stat. 6 & 7 Vict. c. 36, from poor-rate in revoluntary contributions, and had obtained a spect of the premises; for thatcertificate that it was entitled to the benefit of 1st. The purposes to which they were apstat. 6 & 7 Vict. c. 36, s. 1. Objections to the propriated were not exclusively purposes of claim of exemption under the Act were raised science, literature, or the fine arts; and for the decision of this Court, under the follow- 2nd. The promotion of these was not the ing circumstances :

primary object of the society, inasmuch as the Ist. The building was the property of the so- use of the premises and their contents was ciety. The part in question was occupied by confined to the members themselves. Regina it wholly for its own purposes : the rest was let v. Gaskell, 16 Q. B. 472. to tenants : the tenants were rated in respect of 3. Science and fine arts. — The United their own occupations. The rents were received Service Institution was maintained by the subby the society, and formed part of, and were scriptions of its members, chiefly naval and applied as its general funds:

military men, and consisted of a museum of Held, that this fact did not affect the exemp- natural history, curiosities, and armour, a lition from rates of the part occupied by the brary, a lecture-room, and rooms for meetings society.

of its members and for the transaction of bu2nd. The society exhibited on the premises, at siness. It was established (according to the intervals, works of art, which it allowed to be deed of trust by which its property was settled) sold there. The society paid the carriage of as “a central repository for objects of professuch works of art as were sent to its exhibition sional art, science, and natural history, and from a distance, and on the sale of such of for books and documents relating to those these as were sold received 5 per cent. on the studies or of general information, and the deprice to defray the expense of carriage, to which livery of lectures on appropriate subjects." purpose, however, the receipt was not adequate. By the rules, its members were to be,-Princes Strangers were admitted to the exhibitions on of the Blood Royal, officers of the army and payment at the door.

navy and East India Company's service, militia Held, that, the exhibitions appearing to be and yeomanry, lords lieutenant and deputy made boná fide with a view of promoting the lieutenants of counties; and persons who had fine arts, the receipt of money, as above, in the retired from the above services and capacities, course of such exhibitions did not affect the candidates for commissions, above a certain exemption.

age and properly recommended, civil func3rd. In the trust deed of the society was a tionaries attached to the naval or military depower to use the premises “for the imparting partments, and navy and army agents, were and diffusion of education and knowledge con- admissible by ballot. Eminent persons and sistent with the general purposes of the insti- benefactors of the institution, not within the tution.”

above descriptions, the corps diplomatique Held, that these words did not authorise the contributing to the institution, and some other use of the buildings for the diffusion of educa- classes of persons (defined by the rules), were tion, or knowledge, except as connected with admissible as honorary members. Subscribers the general purposes of the institution, viz., the paid il. as an entrance fee, and 10s. yearly. promotion of science, literature, and the fine Members might introduce visitors to all the arts; and therefore did not prejudice the ex- rooms, except the library. emplion.

On appeal against a poor-rate assessed on 4th. T'he trust deed of the society contained a the premises of the institution, and on a stateprovision, that on its dissolution the property | ment of a case for this Court showing the should be sold, and the proceeds divided among above facts, held the then members.

| 1st. That the benefits of the Society were not

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