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Hil. T. Examination.-Notes of the Week.-Superior Courts: Lords Justices.-Rolls. 175 HILARY TERM EXAMINATION. Law, and Practice of the Courts. 3. Convey

ancing. 4. Equity, and Practice of the Courts.

5. Bankruptcy, and Practice of the Courts. The Examiners appointed for the Examina

2016. Criminal Law, and Proceedings before Justion of persons applying to be admitted Attor

tices of the Peace. neys, have fixed Tuesday, the 25th instant,

Each candidate is required to answer all the at hall-past nine in the forenoon, at the Hall

Preliminary Questions (No. 1); and it is exof the Incorporated Law Society, in Chancery | pected that he should answer in three or more Lane, to take the Examination.

of the other heads of inquiry, - Common Law The articles of clerkship and assignment, if any, with answers to the questions as to

and Equity being two thereof. due service, according to the regulations approved by the Judges, must be left with the NOTES OF THE WEEK. Secretary, on or before Tuesday, the 18th inst. Where the articles have not expired, but will

COUNTY COURT costs. expire during the Term, the Candidate may be

| We understand that the Committee of examined conditionally, but the articles must county be left within the first seven days of Term, and

County Court Judges have settled the proposed

Scale of Costs to be allowed between party and answers up to that time.

party and attorney and client, and the same is If part of the Term has been served with a ! Barrister, Special Pleader, or London Agent, then

now under the consideration of the Judges of

ngent, the Superior Courts. answers to the questions must be obtained from them, as to the time served with each respec


A paper of questions will be delivered to each! Her Majesty has been pleased to appoint candidate, containing questions to be answered Richard Davies Hanson, Esq., to be Advocatein writing, classed under the several heads of General for the Colony of South Australia.--1. Preliminary. 2. Common and Statute From the London Gazette of Dec. 31.



Lords Dustices.

| whether the gift was to the personal estate of Lee v. Busk. Dec. 4, 1852.

John Lee or to his children, the case was one

of intestacy and passed under the residuary WILL. — CONSTRUCTION. — RESIDUARY BE-devise. The appeal must be dismissed-the

QUEST.-LIFE INTEREST.-TITLE BY IM-costs to be paid out of the personal estate.
A testatrix gave her residuary personal estate

Master of the Rolls.
in trust for J. L., and directed that if he
should die in her lifetime without leaving

M'Donnell v. Hesilrige. Dec. 7, 1852. any child or children surviving, then the SETTLEMENT IN CONTEMPLATION OF MARresidue of her trust moneys should be in

RIAGE.-EFFECT OF, WHERE MARRIAGE trust for C. L. Upon the death of J. L. WITH ANOTHER PARTY. before the testatrix, leaving children: Held, Upon a marriage being contemplated between affirming the decision of the Master of the a lady and T., the lady's property was Rolls, that such children were not entitled settled on trust for her sole use until the by implication, but that C. L. took under marriage, if any, of her and T. should be the will.

solemnized, or in case no such marriage THE testatrix, Mary Tabitha Lee, by her

should be solemnized, or in case of the sowill, dated in 1847, gave her residuary per

lemnization, if any, of the same marriage, sonal estate to the trustees therein named, in

and from and after such marriage, upon trust for John Lee, and she directed, that if he certain uses : Held, that the settlement ap. should die in her lifetime without leaving any

plied, although she married another party, child or children surviving, then the residue

and not T. of her trust moneys should be in trust for the UPON a marriage being in contemplation Rev. Chas. Lee. 'John Lee having left chil- between Elizabeth Hesilrige and Mr. Taylor dren at his death before the testatrix, this in 1834, a deed of settlement of her property claim had been filed on their behalf claiming was executed on trust for the sole use of herto be entitled to the fund by implication, and self until the marriage, if any, of her and upon the Master of the Rolls having dismissed Taylor should be solemnized, or in case no the same, this appeal had been presented. such marriage should be solemnized, or in

R. Palmer, Terrell, and Grenside in support; case of the solemnization, if any, of the same Faber and Greene, contrà, were not called on marriage, and from and after such marriage to

The Lords Justices said, as it was impossible the uses therein contained. The marriage in to determine from the language of the will question did not take place, but she married 176

Superior Courts : Rolls. V. C. Turner. another gentlernen, and the question arose, I administration claim, to issue his certificate whether the trusts of the settlement were ap- under the 18th Order of April, 1850,' for the plicable.

purpose of bringing the executors of a deRoupell, R. Palmer, C. Chapman Barber, ceased executor, who had received assets withWelch, and Cory for the several parties. out having accounted for the same, before the

The Master of the Rolls held, that tbe trust Court by writ of summons. It appeared the applied to her marriage with any other party. order was made against the surviving executor

alone. Patrick v. Andrews. Dec. 11, 20, 1852. The Vice-Chancellor said, the representaLUNATIC DEFENDANT. - GUARDIAN AD

| tives of the deceased executor could only be LITEM.—APPOINTMENT or soliCITOR.

made parties by a supplemental claim, and The Court refused to appoint as guardian ad I refusing this application.

gave leave accordingly for the same to be filed, litem to a lunatio defendant, the sole surviving trustee, his nephew, who was the Davenport y. Adams. Dec. 23, 1852.

family solicitor. This was a motion for the appointment of a

CLAIM.-LEAVE TO FILE. — SPECIFIC PERguardian ad litem to a lunatic defendant in


LEASE. this suit, which was instituted against him as sole surviving trustee by the cestuis que trustent

Leave given under the 6th Order of April, of a fund. It was proposed to appoint the

1850, to file a claim to enforce the specific nephew, who had acted as the family solicitor. |

performance of an agreement to grant a Freeling in support.

lease. The Master of the Rolls, after taking time to Amphlett appeared in support of this appliconsider, refused the motion.

cation for leave, under the 6th Order of

April, 1850, to file a claim to enforce the speVice-Chancellor Turner.

cific performance of a contract to grant a lease.

By Order 1, “Any person seeking equitable Keyse v. Haydon. Dec. 2, 1852.

relief may, without special leave of the Court, SPECIFIC PERFORMANCE OF CONTRACT. and instead of proceeding by bill of complaint TITLE.—PRACTICE.

in the usual form, file a claim in the Record The Court decided, at the hearing of a claim and Writ Clerks' Office," " in any case where

on behalf of a vendor for the specific per- the plaintiff is, or claims to be,"_"8. A person formance of a contract entered into by the entitled to the specific performance of an defendant, that the contract must be en- agreement for the sale or purchase of any proforced, and directed an entry to be made in perty, seeking such specific performance.” the registrar's book to that effect, and the | The Vice-Chancellor granted the application. cause to stand over for the title to be investigated.

Cousins v. Vasey. Dec. 17, 1852. This claim was filed by the vendor for the MOTION FOR DECREE ON NOTICE.–CERTI: specific performance of a contract, upon the FICATE OF RECORDS AND WRITS CLERK. purchaser refusing to complete on the ground | Direction to Record and Writs' Clerk to certify that his requisitions as to title had not been an

cause in fit state for hearing, in order to be swered.

set down by the registrar, under the 27th Rolt and Wright for the plaintiff ; J. Russell and Selwyn for the defendant.

Order of August 7, on motion for a decree

upon notice under the 22nd Order and the The Vice-Chancellor, after deciding that the

15 & 16 Vict. c. 86, s. 15, although the plaintiff was entitled to a decree, said, that an

answers had been filed before the Act came entry would have to be made in the registrar's

into operation. book to that effect, and the case stand over for the title to be investigated.

This was a motion for a direction on the

Clerk of Records and Writs to issue a certifiEwington r. Fenn. Dec. 21, 1852.

cate to the registrar, that this cause was in a

fit state for hearing, in order to its being set ADMINISTRATION CLAIM.- DECREE AGAINST

down under the 27th Order of August 7 last. SURVIVING EXECUTOR. - REPRESENTATIVES OF DECEASED EXECUTOR. — CER-i Which directs that if upon the proceedTIFICATE OF MASTER.

lings before the Master under any such order, Application refused for direction to the Mas. it shall appear to the Master that some persons,

ter to issue his certificate under the 18th not already parties, ought to attend or to be Order of April, 1850, to bring before the enabled to attend the proceedings before him, Court by summons the executors of a de- he is to be at liberry to certify the same; and ceased executor, in an administration claim, l upon the production of such certificate to the where the decree was taken against the sur-Record and Writ Clerk, the plaintiff may sue viving executor, but leave was given to file out a writ of summons requiring the persons a supplemental claim.

| named in such certificate to appear to the writ, W. Morris appeared in support of this ap- and such persons are thereupon to be named plication for a direction to the Master in this and treated as defendants to the suit."

Superior Courts : V. C. Kindersley.-P.C. Stuart.- Queen's Bench. 177 Notice of motion for a decree had been given, brought into the Master's office, supported under the 15 & 16 Vict. c. 86, s. 15, and the I by affidavit. 22nd Order of Aug. 7. A question had been This was a motion for leave to cross-exraised whether the case was within the Act, amine viva voce before the Master or one of the the answers having been filed before the Act examiners the plaintiff in this suit, in which came into operation.

the usual decree for redemption had been made, Prendergast in support.

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.

supported by affidavit, and the question arose

whether the Master had power to examine or Vice-Chancellor Kindersley.

cross-examine him since the passing of the

recent Act. Sharpe v. Blondeau. Dec. 21, 1852. Wigram and Hitchcock for the defendant in ALTERATION OF INDORSEMENT IN COPY support ; Bacon and W. M. James for the plain

BILL FOR SERVICE ABROAD. tiff, did not oppose. On order for leave to serve a copy of a bill The Vice-Chancellor directed the plaintiff to

upon a defendant abroad, a direction was attend before one of the examiners to be crossgiven for the time in the indorsement within examined as asked: which an appearance is to be entered under i the schedule to the 15 & 16 Vict. c. 86, to Martin v. Hadlow. Dec. 18, 1852. be altered from 8 to 14 days.

EQUÍTY JURISDICTION IMPROVEMENT ACT, LEAVE had been given in this case to serve

SALE OF REAL ESTATE.-INQUIRIES ON a defendant abroad with a copy of the bill, and

CLAIM PENDING. for the appearance to be entered within 14 days Order for sale made under the 15 & 16 Vict. after such service. The indorsement, however, C. 86, s. 55, of real estate, devised on trust being printed in the form given in the schedule for sale and division amongst the petitionto the 15 & 16 Vict. c. 86, this application was ers, although inquiries were still pending made for such indorsement to be altered from before the Master in a claim. 8 to 14 days.

R. W. E. Foster appeared in support of this Prendergast in support.

petition, on behalf of the parties beneficially The Vice-Chancellor said, the indorsement interested, for an order to sell real estates might be altered, and that in future the in- which were devised on trust for sale and didorsement on bills would not be printed to vision of the proceeds amongst the testator's avoid any future questions.

children, the present petitioners. It appeared

that a reference had been made to the Master Robinson y. Hewetson. Dec. 11, 21, 1852. on a claim for the usual inquiries, which was PETITION BY FEME SOLE. - SUBSEQUENT

still pending. MARRIAGE. AMENDMENT BY ADDING! By 8. 55 of the 15 & 16 Vict. c. 86, it is enHUSBAND.-STAMP.

acted, that “if after a suit shall have been in

stituted in the said Court in relation to any real Leave given to amend action by feme sole,

e, estate, it shall appear to the Court that it will who had married after it had been an- l be necessary or expedient that the said real swered, but before it was put into the

estate or any part thereof should be sold for the paper, by adding the name of husband

purposes of such suit, it shall be lawful for the without a fresh stamp being affixed.

said Court to direct the same to be sold at any This was a petition for the payment of a time after the institution thereof, and such sale legacy out of Court, but it appeared that the shall be as valid to all intents and purposes as petitioner had married after it was answered, if directed to be made by a decree or decretal but before it was in the paper, and this appli- order on the hearing of such cause.” cation was therefore now made for leave to The Vice-Chancellor granted the order as amend by adding the husband as a petitioner prayed. without a fresh stamp. Metcalfe in support.

Court of Queen's Bench. The Vice-Chancellor, after consulting the other Judges, granted the application.

| Catchpool v. Ambergate Railway Company.

Nov. 19, 1852.
Vice-Chancellor Stuart.


CER TO REGISTER TRANSFER OF SHARES. Hextall v. Cheatle. Dec. 15, 1852.


PLAINTIFF BEFORE EXAMINER TO BE The plaintiff handed to the secretary of a CROSS-EXAMINED VIVA VOCE.

railway company the deed of transfer of In a suit, where the usual order to redeem and certain shares to be registered, but it ap

for an account had heen made, an order was peared that this was omitted to be done, made for the plaintif to attend before one and the shares had been declared forfeited of the examiners to be cross-examined viva for nonpayment of calls made in respect of voce, as to the state of facts which he had such shares upon the former owner : Held,

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 value of 5l., and that it was mortgaged, with for such neglect to register and unlawful other land of the annual value of 501., for 300l. forfeiture of shares.

An objection was overruled, that the 15l. This was a demurrer to the declaration in interest could not be apportioned rateably this action, which was brought to recover da- amongst the property, as each part

amongst the property, as each part was liable mages from the defendants for neglecting to to the whole interest. register the plaintiff's name as a shareholder,

name as a shareholder Poulden in support. and for unlawfully declaring the shares for

The Court dismissed the appeal, with costs. feited. It appeared that upon the shares being transferred to the plaintiff, he handed the deed

Court of Erchequer. of transfer to the secretary to be registered, Henshaw v. Brice. Nov. 23, 1852. and that a call was afterwards made on the

| ACTION FOR DAMAGE CAUSED BY OCCUPIER former owner, and the shares had been de

OF GROUND FLOOR TO UPPER FLOORS clared forfeited upon non-payment of the


ATIONS. Willes in support of the demurrer; Bram

Held, discharging a rule for a new trial of well contrà. The Court said, the defendants had been

an action, brought by the occupier of upper guilty of an omission in not registering the

floors to recover for damage caused by the plaintiff's name as a shareholder, and for de

occupier of the ground floor of a house for claring the shares forfeited in consequence of

improper alterations, that the defendant the non-payment of calls which arose from the

was entitled to repair when necessary, default of their secretary, and overruled the de

taking all proper precautions, and that he

was not liable for any inevitable injury murrer accordingly.

arising from so doing, but otherwise where

he made unnecessary alterations. Common Pleas.

This was a rule nisi for a new trial of this Moore, appellant ; Overseers of Carisbrooke, action which was brought to recover damages respondents. Nov. 17, 1852.

sustained by the plaintiff, who occupied the

...upper floors of a house, for injuries occasioned REGISTRATION OF VOTERS.-SUFFICIENCY

thereto by the improper alteration of the baseOF QUALIFICATION, — MORTGAGE.-IN

ment and ground floor by the defendant. On TEREST APPORTIONABLE AMONGST LAND

the trial before Lord Campbell, C.J., the deCHARGED.

fendant obtained a verdict. J. S. claimed to vote in respect of a qualifica-l Miller, S. L., and Hayes showed cause

tion consisting of land of the yearly value against the rule, which was supported by of 5l. It appeared, however, it was mort- Mellor and Prowett. gaged, together with other property of the

Cur. ad. vult. annual value of 50l., for 300l., on which The Court said, the defendant, as owner of 151. a year interest was payable : Held, the lɔwer floor, was bound so to manage his affirming the decision of the revising bar- property as not to injure the upper floors, but rister, that the qualification was sufficient, she might repair it when necessary, taking all the interest being apportionable rateably proper precautions to support the upper floors, the interest being apportionable rateadly proper precautions amongst the property.

and he was not liable for any inevitable injury

uppe inevitable injury This was an appeal from the decision of arising from so doing. It was, however, otherthe revising barrister retaining the name of wise in the case of unnecessary alterations, James Sanders on the list of voters. It ap- but as it appeared from the Judge's notes that peared that he claimed to vote in respect of a the law had been properly left to the jury, the piece of freehold land called Edward's Land, in rule would be discharged.




Reference of claim to arbitration, and that Before trial under Reg. Gen. Hil. 4, Wm. 4, | labour, to which the defendant pleads the

nothing is due.-In an action for work and c. 20.- Interlineation discovered after. - A

general issue, a statement made by the plaintiff, party who has been called upon in the ordinary

that the claim which forms the subject of the form (Reg. Gen. Hil. 4 Wm. 4, c. 20, and.

action was referred to an arbitrator, who found Form A.) to admit a document before trial,

hal, by his award that nothing was due to the and has done so, cannot, at the trial object to

object to plaintiff, is evidence against the plaintiff under such document on the ground that it has an fhe cene

an the issue raised by that plea. Murray v. Greinterlineation not accounted for by evidence,

gory, 5 Exch. R. 468. unless it appear that the interlineation was made after the admission. Freeman v. Steggall,

ADMISSIONS. 14 Q. B, 202.

Undertaking to make relieved by Court.—The


Analytical Digest of Cases : Law of Evidence.

179 Court relieved a party from an undertaking to Greaves v. Ashlin, 3 Campb. 426; Ford v. make an admissian upon a trial at law, the law Yates, 2 M. & G. 549; 2 Scott, N. R. 645; on the point having, since the undertaking, Syers v. Jonas, 2 Excb. R. 111. been placed in a state of uncertainty, by

ANSWER. reason of conflicting decisions in different Courts. Cocks v. Purday, 12 Beav. 451.

Inaccuracy not wilful, no ground to reject it

altogether. The existence of an error or an inADMITTANCE TO COPYHOLD. accuracy 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 manor. It appeared that this was the usual oath of the defendant altogether. Reid v. form of entry for Courts at which both free-Langlois, 2 H. & T. 59. hold and customary tenants attended; and

ATTORNEY. that admittances to the copyhold of the manor were granted at such Courts: Held, sufficient from

Subpænaed to produce document received evidence that an admittance at the Court in l'anidens

from client and refusing to do so.-Secondary

the question was made at a customary Court. Doe

' evidence.Where a person, not a party to a dem Evans v. Walker, 15 Q. B. 28,

suit, attends on a common subpæna, and is

called as a witness, and refuses to permit the AMBASSADOR.

production of a document which his attorney Domicile.--A foreign ambassador held, under.

has brought into Court, in obedience to a sub

pæna duces tecum, but which the latter also domicile.

declines to produce; the plaintiff, baving done In 1819, a Sardinian came to England, and

everything that could be done to make apparent became attached to the Sardinian embassy. In the impossibility of using the primary means 1821, he was dismissed, but he continued to

of proof, is entitled to resort to secondary evireside 10 years in England. He was then for

dence of the contents, and is not precluded three years Chargé d'Affaires in London, and from so doing by his omission to serve the for three years minister in Holland. In 1837,

client with a subpæna duces tecum.. Newton v. he was appointed Envoy Extraordinary and

a Chaplin, 10 C. B. 356. Minister Plenipotentiary to England, and re

Cases cited in the judgment: Doe d. Loscombe tained this office until his death in 1846 : Held,

v. Clifford, 2 Car. & K. 448; Doe d. Gilbert upon the evidence of his declaration and acts,

v. Ross, 7 M. & W. 102. that he was domiciled in England. Heath v.

CO-DEFENDANTS. Samson, 14 Beav. 441.

Where interests not identical with examining AMBIGUITY.

defendants.-Two co-defendants were examined Evidence to explain a contract unambiguous

on behalf of defendants whose interests were upon the face of it, not admissible.- A contract |

not identical with their own : Held, that their for the sale of 30 bales of goats' wool at a cer

testimony were admissible in evidence, Daniell tain price per pound, contained the following

v. Daniell, 3 De G. & S. 337. stipulation :--.“ Customary allowance for tare 1 COMMISSION TO EXAMINE WITNESSES. and draft, and to be paid for by cash in one

1. Waiver of irregularity in commission and month, less 5 per cent. discount:" Held, that in the order for it.-A commission issued the vendee was entitled to have the goods de- | under Stat. 1 Wm. 4, c. 22, s. 4, at the inlivered to him immediately or within a reason stance of plaintiff, for the examination of witable time, but was not bound to pay for them

und to pay for them nesses in Ireland. Defendant did not join in until the expiration of the month.

the commission. Neither the order for a comHeld, also, that, there being no ambiguity in mission nor the commission specified the place the language of the contract, evidence was not lof examination. By agreement between the admissible to show that, by the usage of the attorneys, prior to the granting of the order, particular trade, vendors selling under such the examination was taken at a particular place contracts were not bound to deliver the goods l in Ireland. Cross-interrogatories were adwithout payment. Spartali v. Benecke, 10 ministered on behalf of defendant; and on the C. B, 212.

return of the commission he obtained copies Cases cited in the judgment: Webb v. Fair of the examinations. On the trial, documents, maner, 3 M. & W, 473; Rugg v. Minett, 11 obtained under the commission were used by East, 210; Hinde v. Whitehouse, 7 East, 558; 1 plaintiff, who obtained a verdict. On taxation, Chase v. Westmore, 5 M. & S. 180; Craw- the Master allowed plaintiff the costs of the shaw v. Homfray, 4 B. & Ald. 50; Cowell v. commission. Simpson, 16 Ves, 275; Adams v. Wordley, 11 Held, on a rule to review his taxation, that M. & W. 374; Foster v. Jolly, 1 C. M. & R. I the omission to specify the place of examinat 703 ; Free v. Hawkins, 8 Taunt. 92 ; 1 J. B. Moore, 535; Moseley v. Hanford, 10 B. & C.

:tion in the order was, at most, an irregularity, 729; 5 M. & R. 607; Hoare v. Grabam. 3) which was waived by defendant's conduct; and Campb. 57; Rawson' y. Walker, 1 Stark. that the costs were properly allowed. Howkins N, P. c. 361; Webb r. Plummer, 9 B. & v. Balduoin, 16 Q. B. 375.. Ald. 746; Hutton v. Warren, 1 M. &'W.466 ;| 2. Oath of Commissioner dispensed with.

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