Notes of the Week.-Superior Courts: Lord Chan.-Lords Justices.-Rolls.-V. C. Turner. 85

RECENT DECISIONS IN THE SUPERIOR COURTS,
AND SHORT NOTES OF CASES.

fore dismissed with costs,-with liberty to the out of the estate.

Nov. 20.- Barrington v. Liddell-Appeal assignees to apply for allowance of the same

Nov. 24.-In re Vines, in re Hobbs-Part heard.

25.-Martin v. Pycroft-Decree for specific performance.

25.-Sheffield v. Earl of Coventry-Stand over for hearing before the full Court. 25.-Brenan v. Preston-Part heard.

Rhodes v. Buckland. Nov. 12, 1852. MORTGAGEES. REDEMPTION BY SECOND MORTGAGEE, SUIT FOR. INJUNCTION AGAINST PLAINTIFF.

Held, that the first mortgagee on an estate is not entitled to sell under a power of sale pending a suit by the second mortgagee to redeem.

THIS was a motion for an injunction to restrain the first mortgagee possessing a power of sale on an estate from selling, until the right of the second mortgagee to redeem had been

86

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

dence in a claim for specific performance of transactions, publication had been enlarged for a contract was insufficient to support the the purpose of examining witnesses, and the alleged agency on the defendant's behalf, matter had, by arrangement entered into in of the party contracting with the plaintiff, July last, stood over to Nov. 2. This motion the claim was dismissed and an order to was now made, on behalf of the defendant, to examine witnesses vivâ voce refused. proceed according to the new practice. THIS was an application on behalf of the Follett and Gordon in support; Bacon and plaintiff in this claim, which was filed for the Toulmin, contrà.' specific performance of a contract for the sale to the plaintiff of an estate, for an order to ex-well adapted to the examination of witnesses amine the witnesses vivá voce, under the 39th vivá voce, and made an order accordingly. Order of 7th August last. It appeared the contract was entered into by a Mr. Wild, as agent for the vendor, but that his agency was repudiated by the defendant.

Rolt and Bovill in support; Sir W. Page Wood and Webb, contrà.

The Vice-Chancellor said, that unless, if the case had stood on bill and answer, the Court would have directed an issue, it would not proceed under the new practice to examine the witnesses viva voce on the mere speculation as to what evidence might come out on such examination. And as there was not sufficient evidence to establish the alleged agency to have enabled an issue to be directed, the application must be refused, and the claim would be dismissed.

In re Batard. Nov. 24, 1852. LEGACY ACT.—PAYMENT OF MONEY OUT OF COURT, APPLICATION FOR.-PRACTICE. The application for the payment out of Court of money paid in under the Legacy Act (36 Geo. 3, c. 52, s. 32), is to be made at Chambers.

THE Vice-Chancellor, in this application for the payment out of Court of a fund paid in under the 36 Geo. 3, c. 52, s. 32, said, that the order was made, as of course, upon proper evidence that the legatee had attained 21, and should therefore be made at Chambers, and the costs of applying to the Court would not in future cases be allowed.

The Vice-Chancellor said, that the case was

Fullerton v. Newton. Nov. 25, 1852.

EQUITY JURISDICTION IMPROVEMENT ACT.
-ORDER UNDER s. 52. SUBSEQUENT
BIRTH OF PARTY INTERESTED.

Order made in the nature of a supplemental decree under the 15 & 16 Vict. c. 86, s. 52, upon the birth since the suit was instituted of a child interested as one of class therein. THIS was a motion for an order under the 15 & 16 Vict. c. 86, s. 52, in the nature of a supplemental decree. It appeared that a child interested as one of a class had been born since the suit was instituted.

Freeling in support.

The Vice-Chancellor said, that as the effect of the birth of the other party would be to vary the amount of the shares of each of the class, there was a change of interest," and the order was made as asked accordingly.

66

Held, that the purchase-money of lands taken under the compulsory powers of an Act of Parliament, and which had been paid into Court, went to the heir as impressed with the trusts of real estate, and not to the per sonal representatives as converted into per sonalty.

In this petition, it appeared that certain land had been taken by the Manchester Improve ment Commissioners under the compulsory powers of their Act, and that the purchasemoney had been paid into Court, and the divi

By the 39th Order of August 7, 1852, it is directed, "that in suits in which issue shall have been joined when these orders come into operation, the evidence to be used at the hear ing of the cause shall be taken according to the existing practice of the Court, unless the parties shall consent, or the Court shall order, that the same shall be taken in the mode prescribed by the Act 15 & 16 Vict. c. 86, and these orders."

87

Superior Courts: V. C. Stuart.-Queen's Bench.-Q. B. P. Court.-Common Pleas. dends paid to the tenant for life. The estate Nov. 24.-In re Lord Canning and Berrington was devised to a tenant for life, with remainder-Rule nisi to set aside award. to Mr. H. J. Cramer, in the event of the tenant for life having no issue.

Smyth for the heir, in support, urged the fund represented the real estate, citing Midland Counties' Railway Company v. Oswin, 1 Coll. 80; In re Taylor's Settlement, 9 Hare, 596. Greene, contrà, referred to Cookson v. Cookson, 12 C. & F. 121; In re Cross's Estate, 1 Sim. N. S. 260.

24.-Regina v. Day-Rule nisi for quo warranto on coroner for district of Hemel Hempstead, Hertford.

24.-Regina v. Justices of Salop-Rule nisi on defendants to issue warrant of distress

for road-rate.

25.-Regina (on the prosecution of Gedye) v. Mulcock-Rule discharged, without costs, for criminal information for libel.

25.-Regina v. Ashton-Rule absolute for certiorari to remove conviction against pub lican under the 9 Geo. 4, c. 61.

25.-Regina v. Judge of County Court of

The Vice-Chancellor, in accordance with the decisions cited on behalf of the petitioner, said, the money paid into Court must be considered as possessing the character of real estate, and would therefore go to the heir. The costs of Westmoreland-Rule nisi for prohibition. 25. Edwards v. Lowndes Rule disall parties to be paid out of the fund. charged to enter verdict for plaintiff. 25.-In re Harrison and another, exparte Nov. 24, 25.-James v. Lord Wynford-Ford-Rule discharged, with costs, on attorCur. ad. vult.

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25.-In re Vale of Neath Brewery Com-neys to deliver copy of bill of costs. pany, exparte Wood-Order striking name of appellant off the list of contributories as exe

cutor.

Court of Queen's Bench.

Cobbett v. Hudson. Nov. 3, 20, 1852. RIGHT OF PLAINTIFF CONDUCTING HIS OWN CASE ON THE TRIAL TO BE EXAMINED AS A WITNESS IN HIS OWN BEHALF.

A rule was made absolute for a new trial of an action, where the presiding Judge had refused to receive the evidence of the plaintiff, who conducted his case in person, in his own behalf.

Queen's Bench Practice Court. Nov. 24.- Regina v. Earnshaw-Rule nisi for quo warranto on town councillor of Oldham.

24.-Regina v. Potts-Rule discharged for criminal information for libel, on payment of costs.

24.-Regina v. Gregory-Rule nisi for quo warranto on town councillor of Reading. 24, 25.-Arnies v. Kelton-Rule discharged for inspection of machinery.

25.-Regina v. Justices of DerbyshireRule absolute for mandamus on defendants to enter and hear appeal.

25.-Regina v. Mayor and Corporation of Leicester-Rule nisi on defendants to execute bond for payment of annuity to town clerk.

25.-Regina (on prosecution of Croll) v. Tallis-Rule discharged, on payment of costs, for criminal information for libel.

THIS was a rule nisi for a new trial, obtained on May 24 last. On the trial of the action, which was brought against the keeper of the Queen's Prison, for a false return to a writ of habeas corpus, before Lord Campbell, C. J., the plaintiff sued in formá pauperis, and conducted his own case, and stated he should tender himself as a witness on his own behalf. The 25.-Regina v. Sadlers' Company-Rule learned Judge having intimated that he could nisi for mandamus on defendants to restore not act as counsel and be examined as a wit-person to court of assistants, who had been ness, the case proceeded, upon the plaintiff removed for bankruptcy. refusing to consent to an adjournment in order to instruct counsel on his behalf, without his evidence, and the defendant obtained a verdict. Watson and Unthank showed cause; the plaintiff in person in support.

Court of Common Pleas.

Roberts and another v. Cobbett. Nov. 5, 1852.
COLLIERY.-BOUNDARIES.- EVIDENCE OF
COMMISSIONER FOR ASCERTAINING.-
MISDIRECTION.-QUESTION FOR JURY.

On the trial of an action relating to the
boundary of a colliery, the only surviving
Commissioner under the 1 & 2 Vict. c.
43, appointed to investigate and ascertain
the limits of the mines, &c., in the Forest
of Dean, was called to give evidence of the
knowledge he had of "the old works,"
which were specified in the award and plan
as bounding the plaintiffs' colliery on one
side: Held, refusing a rule nisi for a new
trial, that the evidence was properly ad-
mitted, inasmuch as it was not in explana-
tion of the award and plan, but of the state

88

Superior Courts: Common Pleas.-Exchequer.-Exchequer Chamber.

of facts; and held that the question of boundary was properly left to the jury, and was not one of law to be decided by the Judge from the award and plan.

THIS was a motion for a rule nisi for a new trial on the ground of the improper reception of evidence. It appeared that the Commissioners who had been appointed under the 1 & 2 Vict. c. 43, to investigate and ascertain the limits of the mines, &c., in the Forest of Dean, had published an award and a plan in which one of the boundaries of the Cooper's Level Colliery, belonging to the plaintiffs, was stated to be "the old works." It appeared that a question arose as to the meaning of these words, and this action had been directed to be brought by the late Vice-Chancellor Parker, to ascertain the boundaries. At the trial before Cresswell, J., at the last Gloucester Assizes, Mr. Sapwith, the surviving Commissioner, was called to state the knowledge he had of "the old works" at the time the award was made, and an objection to the reception of his evidence as explaining the award and plan was overruled, and the defendant obtained a verdict, whereupon this motion was made.

Whateley, Alexander, and Phipson in support, and on the ground that the Judge ought not to have left the question of boundary to the jury, but have decided from the award and plan what their meaning was.

The Court said, the rule must be refused, as the Commissioner was only called to speak to a matter of fact, and not of opinion, and that the question had been properly left to the jury.

Held, therefore, that they could not recover on a bill of exchange given by way of collateral security by the defendant upon the plaintiffs advancing the deceased a sum of money on his effecting the policy in ques

tion.

THIS was an action by the directors of the Commercial and General Life Assurance Company against the defendant, upon his promissory note for 2007., which he had given by way of collateral security in 1850, on their advancing that amount to a Mr. William C. Knight, to which the defendant set up by way of defence the policy of insurance, which Mr. Knight had effected on his life with the plaintiff, for 600l., but which upon his becoming insane and committing suicide in May, 1851, they had declared to be void, on the ground of the fraudulent concealment by the deceased that his mother and brother had died insane. It appeared that one of the questions put by the office to the deceased was, whether he was aware of any disorder or circumstance tending to shorten life or to make an assurance more than usually hazardous, and that this had been answered in the negative. The defendant having obtained a verdict, this motion was made for a rule nisi for a new trial, upon the ground of misdirection, on the trial before Martin, B.

Edwin James in support.

The Court held, that the deceased was not bound to communicate voluntarily to the office the manner in which his relations died, and that the policy was not invalid in consequence of such non-statement, and the plaintiffs were not therefore entitled to recover against the defendant, and the rule must be refused.

vult.

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26, 27.-West London Railway Company v. London and North Western Railway Com pany,-Cur. ad. vult.

Upon effecting a policy of insurance with the plaintiffs, the deceased had replied in the negative to a question as to whether he was aware of any disorder or circumstance 29.-Lord Henniker v. Attorney-General tending to shorten life or to make an as--Judgment of the Court of Exchequer afsurance more than usually hazardous. It appeared the deceased's mother and brother had died insane: Held, that the deceased was not bound voluntarily to disclose this to the plaintiffs, and that the policy was not void for withholding such circumstance:

firmed.

from the Court of Exchequer.
29.-Clarke v. Gant-Appeal dismissed

30.-Wesson v. Allcard-Judgment of the Court of Exchequer affirmed.

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

www

SATURDAY, DECEMBER 11, 1852.

ATTORNEYS' CERTIFICATE DUTY.

THE CHANCELLOR OF THE EXCHEQUER's

STATEMENT.

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lated, no doubt, by the increased facilities which the new system affords for obtaining judgment in undefended actions for debt, our sanguine contemporary bases the somewhat fantastic conclusion, "that law reform WE participate in the sense of disap will be a positive benefit to the Attorneys, pointment and regret felt at the omission however injurious it may be to the interests from the Chancellor of the Exchequer's of the Bar;" nay, that it will be found all financial statement of any reference what other law reforms that may be introduced ever to the repeal of that unjust and op-"will improve the fortunes of the Attorneys pressive burthen, the Annual Certificate and reduce those of the Bar." Duty. The Attorney's Certificate Tax is Our contemporary is certainly entitled to distinguished from all others by the cir- the merit of originality in the discovery that cumstance that it has been deliberately the recent changes have improved the forcondemned in the last Parliament by suc- tunes of the Attorneys. If his assertion be cessive majorities against the whole strength correct, it affords another and a remarkable and force of the late Government, a fact instance how ignorant men are of their own which would seem to have rendered it im- affairs, and how much better acquainted perative upon the present Chancellor to an- our learned contemporary must be with the nounce at least the grounds upon which he condition of the attorneys than the attor. has determined to maintain the tax, if in- neys themselves. In sober seriousness, deed maintained it is to be. In that di- however, we believe that the Attorneys and vision of the financial statement devoted to the Bar have been and are equally affected the suffering classes, injuriously affected by by the transitions to which the Profession recent legislation, the case of the Attorneys is subjected, and without any desire or design and Solicitors might have been not inap- to conceal the predominance of our sympapropriately introduced, notwithstanding the thies with the larger branch of the Professomewhat premature and ill-timed an- sion, we are convinced we express the nouncement of one of our legal contempo- feeling that prevails in that branch, when raries,1 copied into the daily papers, under we state that they do not believe they have the attractive title of "Law Looking Up," acquired, and have no desire to acquire, any that 1,065 writs have been issued from the benefits at the expense of the Bar. Both Courts of Common Law, between October branches have suffered, and must continue the 24th and November the 20th in the to suffer, from legislative changes, and the present year, beyond the number issued in only question really deserving of considerathe corresponding period of the last year. tion is, whether the general public is pro Upon this temporary increase, arising portionably benefited by the loss to which chiefly, we apprehend, from the uncer- the Legal Profession is subjected. tainty prevailing as to the future practice in respect of writs issued antecedent to the 24th October, when the Common Law Procedure Act. came into operation, but stimu

The Law Times, Saturday, Nov. 27. VOL. XLV. No. 1,292.

Recurring to the Chancellor of the Exchequer's statement, we are inclined to infer that the omission of all reference to the exceptional and peculiar fiscal grievance complained of by the attorneys was not an inadvertence, but indicative of a disposition

G