Hil. T. Examination.-Notes of the Week.-Superior Courts: Lords Justices.-Rolls. 175 HILARY TERM EXAMINATION. THE Examiners appointed for the Examination of persons applying to be admitted Attorneys, have fixed Tuesday, the 25th instant, at half-past nine in the forenoon, at the Hall of the Incorporated Law Society, in Chancery Lane, to take the Examination. The articles of clerkship and assignment, if any, with answers to the questions as to due service, according to the regulations approved by the Judges, must be left with the Secretary, on or before Tuesday, the 18th inst. Where the articles have not expired, but will expire during the Term, the Candidate may be examined conditionally, but the articles must be left within the first seven days of Term, and answers up to that time. If part of the Term has been served with a Barrister, Special Pleader, or London Agent, answers to the questions must be obtained from them, as to the time served with each respectively. A paper of questions will be delivered to each candidate, containing questions to be answered in writing, classed under the several heads of -1. Preliminary. 2. Common and Statute Law, and Practice of the Courts. 3. Conveyancing. 4. Equity, and Practice of the Courts. 6. Criminal Law, and Proceedings before Jus5. Bankruptcy, and Practice of the Courts. tices of the Peace. Preliminary Questions (No. 1); and it is exEach candidate is required to answer all the pected that he should answer in three or more and Equity being two thereof. of the other heads of inquiry,-Common Law NOTES OF THE WEEK. COUNTY COURT COSTS. WE understand that the Committee of County Court Judges have settled the proposed Scale of Costs to be allowed between party and now under the consideration of the Judges of party and attorney and client, and the same is the Superior Courts. LAW APPOINTMENT. Her Majesty has been pleased to appoint Richard Davies Hanson, Esq., to be AdvocateGeneral for the Colony of South Australia.— From the London Gazette of Dec. 31. RECENT DECISIONS IN THE SUPERIOR COURTS, AND SHORT NOTES OF CASES. Lords Justices. Lee v. Busk. Dec. 4, 1852. CONSTRUCTION. — RESIDUARY BE QUEST.-LIFE INTEREST.-TITLE BY IM PLICATION. A testatrix gave her residuary personal estate in trust for J. L., and directed that if he should die in her lifetime without leaving any child or children surviving, then the residue of her trust moneys should be in trust for C. L. Upon the death of J. L. before the testatrix, leaving children: Held, affirming the decision of the Master of the Rolls, that such children were not entitled by implication, but that C. L. took under the will. THE testatrix, Mary Tabitha Lee, by her will, dated in 1847, gave her residuary personal estate to the trustees therein named, in trust for John Lee, and she directed, that if he should die in her lifetime without leaving any child or children surviving, then the residue of her trust moneys should be in trust for the Rev. Chas. Lee. John Lee having left children at his death before the testatrix, this claim had been filed on their behalf claiming to be entitled to the fund by implication, and upon the Master of the Rolls having dismissed the same, this appeal had been presented. R. Palmer, Terrell, and Grenside in support; Faber and Greene, contrà, were not called on. The Lords Justices said, as it was impossible to determine from the language of the will whether the gift was to the personal estate of John Lee or to his children, the case was one of intestacy and passed under the residuary devise. The appeal must be dismissed-the costs to be paid out of the personal estate. Master of the Rolls. M'Donnell v. Hesilrige. Dec. 7, 1852. SETTLEMENT IN CONTEMPLATION OF MAR RIAGE. EFFECT OF, WHERE MARRIAGE WITH ANOTHER PARTY. Upon a marriage being contemplated between a lady and T., the lady's property was settled on trust for her sole use until the marriage, if any, of her and T. should be solemnized, or in case no such marriage should be solemnized, or in case of the solemnization, if any, of the same marriage, and from and after such marriage, upon certain uses: Held, that the settlement applied, although she married another party, and not T. UPON a marriage being in contemplation between Elizabeth Hesilrige and Mr. Taylor in 1834, a deed of settlement of her property was executed on trust for the sole use of herself until the marriage, if any, of her and Taylor should be solemnized, or in case no such marriage should be solemnized, or in case of the solemnization, if any, of the same marriage, and from and after such marriage to the uses therein contained. The marriage in question did not take place, but she married 176 Superior Courts: Rolls.-V. C. Turner. another gentlemen, and the question arose, administration claim, to issue his certificate whether the trusts of the settlement were ap-under the 18th Order of April, 1850,1 for the plicable. LITEM.-APPOINTMENT OF SOLICITOR. The Court refused to appoint as guardian ad litem to a lunatio defendant, the sole surviving trustee, his nephew, who was the family solicitor. THIS was a motion for the appointment of a guardian ad litem to a lunatic defendant in this suit, which was instituted against him as sole surviving trustee by the cestuis que trustent of a fund. It was proposed to appoint the nephew, who had acted as the family solicitor. Freeling in support. The Master of the Rolls, after taking time to consider, refused the motion. The Court decided, at the hearing of a claim on behalf of a vendor for the specific performance of a contract entered into by the defendant, that the contract must be enforced, and directed an entry to be made in the registrar's book to that effect, and the cause to stand over for the title to be investigated. THIS claim was filed by the vendor for the specific performance of a contract, upon the purchaser refusing to complete on the ground that his requisitions as to title had not been answered. Rolt and Wright for the plaintiff; J. Russell and Selwyn for the defendant. The Vice-Chancellor, after deciding that the plaintiff was entitled to a decree, said, that an entry would have to be made in the registrar's book to that effect, and the case stand over for the title to be investigated. Ewington v. Fenn. Dec. 21, 1852. ADMINISTRATION CLAIM.-DECREE AGAINST SURVIVING EXECUTOR. REPRESENTATIVES OF DECEASED EXECUTOR. — CERTIFICATE OF MASTER. Application refused for direction to the Master to issue his certificate under the 18th Order of April, 1850, to bring before the Court by summons the executors of a deceased executor, in an administration claim, where the decree was taken against the surviving executor, but leave was given to file a supplemental claim. W. Morris appeared in support of this application for a direction to the Master in this purpose of bringing the executors of a deceased executor, who had received assets without having accounted for the same, before the Court by writ of summons. It appeared the order was made against the surviving executor alone. The Vice-Chancellor said, the representatives of the deceased executor could only be made parties by a supplemental claim, and gave leave accordingly for the same to be filed, refusing this application. Davenport v. Adams. Dec. 23, 1852. CLAIM.-LEAVE TO FILE.-SPECIFIC PER FORMANCE OF CONTRACT то GRANT LEASE. Leave given under the 6th Order of April, 1850, to file a claim to enforce the specific performance of an agreement to grant a lease. Amphlett appeared in support of this application for leave, under the 6th Order of April, 1850, to file a claim to enforce the specific performance of a contract to grant a lease. By Order 1, "Any person seeking equitable relief may, without special leave of the Court, and instead of proceeding by bill of complaint in the usual form, file a claim in the Record and Writ Clerks' Office," "in any case where the plaintiff is, or claims to be,"-" 8. A person entitled to the specific performance of an agreement for the sale or purchase of any property, seeking such specific performance." The Vice-Chancellor granted the application. Cousins v. Vasey. Dec. 17, 1852. MOTION FOR DECREE ON NOTICE.-CERTI FICATE OF RECORDS AND WRITS CLERK. Direction to Record and Writs' Clerk to certify cause in fit state for hearing, in order to be set down by the registrar, under the 27th Order of August 7, on motion for a decree upon notice under the 22nd Order and the 15 & 16 Vict. c. 86, s. 15, although the answers had been filed before the Act came into operation. THIS was a motion for a direction on the Clerk of Records and Writs to issue a certificate to the registrar, that this cause was in a fit state for hearing, in order to its being set down under the 27th Order of August 7 last. 1 Which directs, that "if upon the proceedings before the Master under any such order, it shall appear to the Master that some persons, not already parties, ought to attend or to be enabled to attend the proceedings before him, he is to be at liberty to certify the same; and upon the production of such certificate to the Record and Writ Clerk, the plaintiff may sue out a writ of summons requiring the persons named in such certificate to appear to the writ, and such persons are thereupon to be named and treated as defendants to the suit." Superior Courts: V. C. Kindersley.-V. C. Stuart.-Queen's Bench. Notice of motion for a decree had been given, under the 15 & 16 Vict. c. 86, s. 15, and the 22nd Order of Aug. 7. A question had been raised whether the case was within the Act, the answers having been filed before the Act came into operation. Prendergast in support. 177 brought into the Master's office, supported by affidavit. THIS was a motion for leave to cross-examine viva voce before the Master or one of the examiners the plaintiff in this suit, in which the usual decree for redemption had been made, and for an account. A state of facts had been The Vice-Chancellor, after consulting the brought in by the plaintiff before the Master, other Judges, made the order as asked. Vice-Chancellor Kindersley. Sharpe v. Blondeau. Dec. 21, 1852. ALTERATION OF INDORSEMENT IN COPY BILL FOR SERVICE ABROAD. On order for leave to serve a copy of a bill upon a defendant abroad, a direction was given for the time in the indorsement within which an appearance is to be entered under the schedule to the 15 & 16 Vict. c. 86, to be altered from 8 to 14 days. LEAVE had been given in this case to serve a defendant abroad with a copy of the bill, and for the appearance to be entered within 14 days after such service. The indorsement, however, being printed in the form given in the schedule to the 15 & 16 Vict. c. 86, this application was made for such indorsement to be altered from 8 to 14 days. Leave given to amend action by feme sole, who had married after it had been answered, but before it was put into the paper, by adding the name of husband without a fresh stamp being affixed. THIS was a petition for the payment of a legacy out of Court, but it appeared that the petitioner had married after it was answered, but before it was in the paper, and this application was therefore now made for leave to amend by adding the husband as a petitioner without a fresh stamp. Metcalfe in support. The Vice-Chancellor, after consulting the other Judges, granted the application. supported by affidavit, and the question arose whether the Master had power to examine or cross-examine him since the passing of the recent Act. Wigram and Hitchcock for the defendant in Support; Bacon and W. M. James for the plaintiff, did not oppose. The Vice-Chancellor directed the plaintiff to attend before one of the examiners to be crossexamined as asked. Martin v. Hadlow. Dec. 18, 1852. EQUITY JURISDICTION IMPROVEMENT ACT. SALE OF REAL ESTATE. INQUIRIES ON CLAIM PENDING. Order for sale made under the 15 & 16 Vict. c. 86, s. 55, of real estate, devised on trust for sale and division amongst the petitioners, although inquiries were still pending before the Master in a claim. R. W. E. Foster appeared in support of this petition, on behalf of the parties beneficially interested, for an order to sell real estates which were devised on trust for sale and division of the proceeds amongst the testator's children, the present petitioners. It appeared that a reference had been made to the Master on a claim for the usual inquiries, which was still pending. By s. 55 of the 15 & 16 Vict. c. 86, it is enacted, that "if after a suit shall have been instituted in the said Court in relation to any real estate, it shall appear to the Court that it will be necessary or expedient that the said real estate or any part thereof should be sold for the purposes of such suit, it shall be lawful for the said Court to direct the same to be sold at any time after the institution thereof, and such sale shall be as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause." The Vice-Chancellor granted the order as prayed. 178 Superior Courts: Queen's Bench.-Common Pleas.-Exchequer.-Analytical Digest. overruling a demurrer to the declaration, Carisbrooke Fields, Isle of Wight, of the annual that the plaintiff was entitled to recover for such neglect to register and unlawful forfeiture of shares. THIS was a demurrer to the declaration in this action, which was brought to recover damages from the defendants for neglecting to register the plaintiff's name as a shareholder, and for unlawfully declaring the shares forfeited. It appeared that upon the shares being transferred to the plaintiff, he handed the deed of transfer to the secretary to be registered, and that a call was afterwards made on the former owner, and the shares had been declared forfeited upon non-payment of the J. S. claimed to vote in respect of a qualification consisting of land of the yearly value of 51. It appeared, however, it was mortgaged, together with other property of the annual value of 50l., for 300l., on which 151. a year interest was payable: Held, affirming the decision of the revising barrister, that the qualification was sufficient, the interest being apportionable rateably amongst the property. THIS was an appeal from the decision of the revising barrister retaining the name of James Sanders on the list of voters. It appeared that he claimed to vote in respect of a piece of freehold land called Edward's Land, in | value of 5., and that it was mortgaged, with other land of the annual value of 50%., for 3001. An objection was overruled, that the 157. interest could not be apportioned rateably amongst the property, as each part was liable to the whole interest. Poulden in support. The Court dismissed the appeal, with costs. Court of Exchequer. Henshaw v. Brice. Nov. 23, 1852. ACTION FOR DAMAGE CAUSED BY OCCUPIER OF GROUND FLOOR TO UPPER FLOORS OF HOUSE.-RIGHT TO REPAIR.-ALTERATIONS. Held, discharging a rule for a new trial of an action, brought by the occupier of upper floors to recover for damage caused by the occupier of the ground floor of a house for improper alterations, that the defendant was entitled to repair when necessary, taking all proper precautions, and that he was not liable for any inevitable injury arising from so doing, but otherwise where he made unnecessary alterations. THIS was a rule nisi for a new trial of this action which was brought to recover damages sustained by the plaintiff, who occupied the upper floors of a house, for injuries occasioned thereto by the improper alteration of the basement and ground floor by the defendant. On the trial before Lord Campbell, C.J., the defendant obtained a verdict. Miller, S. L., and Hayes showed cause against the rule, which was supported by Mellor and Prowett. Cur. ad. vult. The Court said, the defendant, as owner of the lower floor, was bound so to manage his property as not to injure the upper floors, but he might repair it when necessary, taking all proper precautions to support the upper floors, and he was not liable for any inevitable injury however, otherarising from so doing. It was, wise in the case of unnecessary alterations, but as it appeared from the Judge's notes that the law had been properly left to the jury, the rule would be discharged. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COURTS. LAW OF EVIDENCE. Before trial under Reg. Gen. Hil. 4, Wm. 4, c. 20. Interlineation discovered after.-A party who has been called upon in the ordinary form (Reg. Gen. Hil. 4 Wm. 4, c. 20, and Form A.) to admit a document before trial, and has done so, cannot, at the trial object to such document on the ground that it has an interlineation not accounted for by evidence, unless it appear that the interlineation was made after the admission. Freeman v. Steggall, 14 Q. B. 202. Analytical Digest of Cases: Law of Evidence. Court relieved a party from an undertaking to make an admissian upon a trial at law, the law on the point having, since the undertaking, been placed in a state of uncertainty, by reason of conflicting decisions in different Courts. Cocks v. Purday, 12 Beav. 451. ADMITTANCE TO COPYHOLD. 179 Greaves v. Ashlin, 3 Campb. 426; Ford v. ANSWER. Inaccuracy not wilful, no ground to reject it altogether. The existence of an error or an inaccuracy in an answer in the description of Title of Court.-In the entries in the Court- some document not in question, where there book of a manor, the proceedings at a Court is no ground for imputing wilful falsehood to were headed as held at a "Court Baron" of the the defendant, is no reason for rejecting the Reid v. manor. It appeared that this was the usual oath of the defendant altogether. form of entry for Courts at which both free- Langlois, 2 H. & T. 59. hold and customary tenants attended; and that admittances to the copyhold of the manor were granted at such Courts: Held, sufficient evidence that an admittance at the Court in from client and refusing to do so.-Secondary question was made at a customary Court. Doe dem Evans v. Walker, 15 Q. B. 28, AMBASSADOR. Domicile.-A foreign ambassador held, under the circumstances, to have acquired an English domicile. In 1819, a Sardinian came to England, and became attached to the Sardinian embassy. In 1821, he was dismissed, but he continued to reside 10 years in England. He was then for three years Chargé d'Affaires in London, and for three years minister in Holland. In 1837, he was appointed Envoy Extraordinary and Minister Plenipotentiary to England, and retained this office until his death in 1846: Held, upon the evidence of his declaration and acts, that he was domiciled in England. Heath v. Samson, 14 Beav. 441. AMBIGUITY. Evidence to explain a contract unambiguous upon the face of it, not admissible.-A contract for the sale of 30 bales of goats' wool at a certain price per pound, contained the following stipulation: Customary allowance for tare and draft, and to be paid for by cash in one month, less 5 per cent. discount:" Held, that the vendee was entitled to have the goods delivered to him immediately or within a reasonable time, but was not bound to pay for them until the expiration of the month. Held, also, that, there being no ambiguity in the language of the contract, evidence was not admissible to show that, by the usage of the particular trade, vendors selling under such contracts were not bound to deliver the goods without payment. Spartali v. Benecke, 10 C. B. 212. Cases cited in the judgment: Webb v. Fair- 729; 5 M. & R. 607; Hoare v. Graham, S ATTORNEY. Subpoenaed to produce document_received suit, attends on a common subpoena, and is evidence.-Where a person, not a party to a called as a witness, and refuses to permit the production of a document which his attorney has brought into Court, in obedience to a subdeclines to produce; the plaintiff, having done pœna duces tecum, but which the latter also everything that could be done to make apparent the impossibility of using the primary means of proof, is entitled to resort to secondary evidence of the contents, and is not precluded from so doing by his omission to serve the client with a subpoena duces tecum. Newton v. Chaplin, 10 C. B. 356. Cases cited in the judgment: Doe d. Loscombe v. Clifford, 2 Car. & K. 448; Doe d. Gilbert v. Ross, 7 M. & W. 102. CO-DEFENDANTS. Where interests not identical with examining defendants.-Two co-defendants were examined on behalf of defendants whose interests were not identical with their own: Held, that their testimony were admissible in evidence. Daniell v. Daniell, 3 De G. & S. 337. COMMISSION TO EXAMINE WITNESSES. 1. Waiver of irregularity in commission and in the order for it.-A commission issued under Stat. 1 Wm. 4, c. 22, s. 4, at the instance of plaintiff, for the examination of witnesses in Ireland. Defendant did not join in the commission. Neither the order for a commission nor the commission specified the place of examination. By agreement between the attorneys, prior to the granting of the order, the examination was taken at a particular place in Ireland. Cross-interrogatories were administered on behalf of defendant; and on the return of the commission he obtained copies of the examinations. On the trial, documents, obtained under the commission were used by plaintiff, who obtained a verdict. On taxation, the Master allowed plaintiff the costs of the commission. the omission to specify the place of examinat Held, on a rule to review his taxation, that tion in the order was, at most, an irregularity, which was waived by defendant's conduct; and that the costs were properly allowed. Howkins v. Baldwin, 16 Q. B. 375. 2. Oath of Commissioner dispensed with. |