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Lards Justices.

In re Ashworth. June 19, 1856.

INFANTS.-GUARDIANS.-RESIDENCE.

The father of two infants on his deathbed, expressed great anxiety that his elder child should have the benefit of his sister's care with whom such child had been. His wife, who died soon afterwards, gave birth to another child, who also was under the care of such sister. The wife had however by will appointed her brother and her sister's husband as guardians, who consented to act. The children had since the wife's death resided with their father's sister, with the consent of all parties. An application had been made to Vice-Chancellor Stuart, who appointed the mother's brother and his wife, and another of the mother's sisters and her husband guardians, and directed them to reside with the former: On appeal held that the children should remain with the father's sister and her husband until further order, subject to the supervision of their guardians.

IT appeared that on the death of Mr. Ashworth in August, 1841, he had expressed a great anxiety that his infant daughter should have the benefit of his sister's care (Miss Ashworth, now Mrs. Patrick), with whom she had been, and a second daughter born soon after his death had the same advantage. The wife died in May, 1846, having by her will appointed her brother, Mr. Howarth, and Mr. Munn, her sister's husband, guardians, and they consented to act. The children lived with Miss Ashworth with the consent of all parties, and she had since married Mr. Patrick.

An application had been made to the Vice-Chancellor Stuart, who appointed Mr. Howarth and his wife, and Mr. Slater and his wife (another of the wife's sisters) as guardians, and directed the children to reside with the former, whereupon this appeal was presented.

Malins and Baggallay for Mr. and Mrs. Patrick, Bacon and Piggott for Mr. and Mrs. Slater in support. Cairns and Amphlett for Mr. and Mrs. Howarth, and Mr. Munn contrâ.

Jolliffe for the trustee.

The Lords Justices said that the children ought not to be separated by being sent to school; and it would be a strong course to remove them from Mrs. Patrick after the length of time they had been there. There was the best possible understanding between the parties, and it was to be hoped it would be continued. The order would be for the children to reside with Mr. and Mrs. Patrick, until further order, under a governess, and be subject to the supervision of the guardians.

Master of the Rolls.

Reimers v. Druce.-June 19, 1856. AFFIDAVITS, FILINGSWORN BEFORE FOREIGN JUSTICE.-OFFICE COPY.

Certain affidavits were sworn before a judge of one of the courts of justice at Emden, Hanover, whom the British Consul certified to be a person before whom, according to the law of Hanover, oaths could be taken. The affidavits were writ

ten in English on one sheet, and in German on the other. The Clerk of Records and Writs was directed to file the affidavits, but office copies of the English parts only to be given.

Ir appeared that certain affidavits in this suit had been sworn before a judge of one of the courts of Justice at Emden, Hanover, whom the British Consul certified to be a person, who, according to the law of Hanover was entitled to administer oaths. It also appeared that the affidavits were written in English, on one side of each sheet, and in German on the other. There was no evidence, however, that the English was a correct translation.

Bristowe, for the plaintiff, who resided at Emden, in support stated, he had examined the translation, and that it was correct.

The defendant consented.

The Master of the Rolls said that the affidavits might be filed, but that office copies would only be given of the English portions.

Vice-Chancellor Kindersley.

Alcock v. Kempson. June 19, 1856.

PAYMENT OF FUND TO SOLICITOR OF PARTY IN
AUSTRALIA.-UNDERTAKING.

Order made for payment out of Court, of the share of a fund to the solicitor of the party entitled, who was in Australia, upon his undertaking to account for the same to such person, and on the production of a letter from such party that the same should be done.

Ir appeared that one of the parties entitled to a share of a fund in court was in Australia, and this application was now made for payment of such share to his solicitor, upon his undertaking to account to him for the same.

Rasch, in support.

The Vice-Chancellor said that an order might be taken on the production of a letter from the party in Australia, to the effect that such payment should be made.

In re Electric Telegraph Company of Ireland. June 21, 1856.

PETITION-COSTS OF SECOND-AFFIDAVITS FILED SINCE ORDER ON ROLLS PETITION.

A petition was presented for the winding-up of a company, but it appeared that the clerk of the petitioners' solicitor had omitted to search at the Rolls, where a petition, having the same object, had been presented. Held, that the second petitioners must pay the costs of the other petitioners who appeared and opposed; and that no costs of any affidavits filed since the order at the Rolls could be allowed. THIS was a petition to wind up the above company. It appeared that the solicitor of the petitioners had directed his clerk to make the proper searches to ascertain whether any other petition had been presented, and that the clerk had only searched at the secretary to the Lord Chancellor, and not to the Master of the Rolls, with whom a petition, having the same object, had been presented.

Glasse and Roxburgh, in support; Selwyn and J. J. H. Humphreys, for the petitioners, at the Rolls, contrâ.

The Vice-Chancellor said, that as the petition at the Rolls had been first presented, the order must be

made primâ facie upon it. This had been done, and no order could, therefore, be made on the present petition. With respect to the costs, there had been an omission to search at the Rolls' secretary, and the petitioners must pay the respondents' costs; and no costs would be allowed of any affidavits filed since the order had been made at the Rolls.

Smale v. Hodgson. June 21, 1856. MASTERS' ABOLITION ACT.-MASTERS' REPORT OF

DELAY.-FURTHER DIRECTIONS.

The parties to a suit were summoned before the Master, under the 15 & 16 Vict. c. 80, s. 7, and a report was made under s. 8 on the whole case as to the cause of delay: Held that such report was general, and was properly set down on further directions.

It appeared that the parties to this suit had been summoned before the master under the 15 & 16 Vict. c. 80, s. 7, which enacts that "in order as expeditiously as may be to wind up all the causes, matters, and things which may from time to time be depending before or have been referred to the Masters in Ordinary of the said court, it shall be lawful for every master, at any time after the passing of this Act, to summon as he shall deem fit all or any of the parties to any cause, matter, or thing so depending, or their solicitors, and thereupon to proceed with such cause, matter, or thing, and give such directions and make such order as he may think necessary for the purpose of settling and winding up the same; but any such order shall be subject to be discharged or varied by the Court upon application made for that purpose; and the master shall be at liberty to proceed for the purposes aforesaid in the absence of any of the parties or solicitors neglecting or refusing to attend the summons ;" and he had reported generally on the whole case on the cause of the delay under 8. 8, which provides that "in case the master shall be unable, by reason of the conduct of parties, or otherwise, to finally dispose of any cause, matter, or thing, he shall be at liberty to dispose of any part thereof within his power, and to report or certify on the whole of the case; and upon such report or certificate the Court shall make such order as it shall think proper on all or any of the parties, for the further prosecution of the suit or matter, or for the final disposal thereof, and for the payment of the costs thereof, including any of the costs which may have been incurred by reason of the conduct of the parties."

The case had been set down on further directions. Glasse, G. Simpson, Giffard, and C. M. Roupell for the several parties.

The Vice-Chancellor (after consulting Mr. Registrar Metcalfe), said that the report was general, and had been properly set down upon further directions.

Vice-Chancellor Wood. Manby v. Bewicke. June 5, 1856. SECURITY FOR COSTS.-PLAINTIFF'S NON-RESIDENCE

WHERE DESCRIBED.

An application was granted for security to be given for costs by a plaintiff, a labourer, who had not resided at the place where he was described of in the bill since April, 1855, and his solicitor refused to give any information where he could be found, and although he duly paid his rent for such residence.

THIS was an application for an order on the plaintiff

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Otter v. Vaux. June 20, 1856. MORTGAGOR AND MORTGAGEE. SECOND MORTGAGEE'S RIGHT WHERE MORTGAGOR PURCHASES UNDER POWER OF SALE IN FIRST MORTGAGE.

A mortgagee sold under a power of sale, which was not expressly recited in a second mortgage, although the latter was subject to such mortgage, and the mortgagee covenanted for title except as appeared by those presents. The mortgagor bought of such purchaser, and the purchase-money was insufficient to pay the mortgage debt: Held that the second mortgagee was entitled to have a conveyance of the legal estate from the last mortgagee from the mortgagor.

Ir appeared that an estate was mortgaged to a Mr. Goode, with the usual power of sale upon default in payment of the mortgage money, and that the same property was afterwards mortgaged to Mr. Geach (of whom the plaintiff was transferee). This latter mortgage was made subject to the prior mortgage, which was recited in the deed, but no notice was taken of the previous power of sale; but the mortgagor contended for title in the usual manner, "free from incumbrances except as appears by these presents," and also for further assurance. Mr. Goode exercised his power of sale and sold to a purchaser, from whom the mortgagor subsequently bought, but the purchase-money was insufficient to discharge the mortgage debt, and he then mortgaged to оне Mostyn, who, however, had notice of the mortgage to Mr. Geach, and his transferee filed this bill for a conveyance of the legal estate.

W. M. James and Giffard for the plaintiff, cited Toulmin v. Steere, 3 Mer. 210.

Rolt, Amphlett, R. R. A. Hawkins, and C. M. Roupell for the defendants.

The Vice-Chancellor said that the power of sale was a mode of enforcing payment of the debt, and was now usually inserted in mortgage deeds; and that any one taking subject to a prior mortgage must be considered as having notice of its contents, and therefore of the power of sale. If the mortgagor had simply paid off the first mortgage, the effect would be to set up the second mortgage, and the mortgagor would not be able to set up the anterior charge against it, and there was no difference between that case and the present. The mortgagor could not set up the transaction against his own act, and it was analogous to the rule that a mortgagor could not, by obtaining an assignment of the mortgage debt to a trustee for himself, set up such assignment against a subsequent mortgagee. Then it was argued that where an estate produced a surplus the second mortgagee would be getting a lien both on the surplus and on the estate; but the mortgagor would have the full benefit of this, as the charge of the second mortgagee on the estate would be not for his whole debt, but only for such part as the surplus was insufficient to discharge. The estate in the

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mortgagor's hands was therefore liable to the plaintiff's claim, and a decree would be made for a conveyance, and for the appointment of a receiver in the meantime.

Court of Queen's Bench.
Bennett v. Thomson. May 31, 1856.
ACT.-CERTIFICATE

COUNTY COURTS'

FOR COSTS,

AFTER TRIAL.

THIS was an action for a nuisance, and on the trial before Channell, Serjeant-at-Law, at the last Somerset assizes the plaintiff obtained a verdict with 40s. damages, and Mr. Serjeant Channell had certified for a special jury, and that the action was brought to try a right. An application was afterwards made to him to certify under the 13 & 14 Vict. c. 61, s. 12, which enacts that "if the plaintiff shall in any such action as aforesaid recover a sum less than the sum in that behalf hereinbefore mentioned, by verdict, and the Judge or other presiding officer before whom such verdict shall be obtained, shall certify on the back of the record that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered in any such County Court as aforesaid, or that it appeared to him at the trial that there was a sufficient reason for bringing the said action in the Court in which the said action was brought, the plaintiff in such case shall have the same judgment to recover his costs that he would have had if this Act had not been passed." And this application was now made on the question whether he had power to certify. J. D. Coleridge in support.

The Court said that the section did not provide the certificate could only be given at the trial, and the learned Serjeant having co-ordinate power with a Judge of the Superior Court as acting under the Queen's Commission of Assize, could give the certificate asked for.

Queen's Bench Practice Court.
(Coram Wightman, J.)

In re Wright. June 7, 1856.

BILL OF SALE.-AFFIDAVIT.—PRACTICE.

The affidavit of execution of a bill of sale under the 17 & 18 Vict. c. 36, was taken before a Country Commissioner to administer oaths in Chancery, instead of a Commissioner in the Queen's Bench, A second copy was filed with the affidavit properly sworn: Held, that the course was to move for leave to take the first bill of sale and affidavit off the file.

Ir appeared that the affidavit of the execution of a bill of sale had been sworn at Bristol before a Country Commissioner to administer oaths in Chancery instead of a Queen's Bench Commissioner. After the bill of sale was filed, a fresh affidavit had been made, and the bill of sale was again filed with the second affidavit.

Keane now applied for leave to add a memorandum in respect of the first bill of sale.

The Court said, that the proper course would be to move for leave to take the first bill off the file, and granted the rule accordingly.

Court of Exchequer.

Jessel v. Chaplin. May 24, 1856. COMMON LAW PROCEDURE ACT, 1854.-INJUNCTION. -TAKING DOWN WALL.-OBSTRUCTING ANCIENT LIGHTS.

A rule was made absolute for an injunction to restrain the defendant from continuing to obstruct the plaintiff's ancient lights, and although it involved his taking down so much of the building, constituting such obstruction.

THIS was a rule nisi for an injunction on the defendant to restrain him from continuing to obstruct the ancient lights of the plaintiff. An action had been brought in which the plaintiff obtained a verdict.

By the 17 & 18 Vict. c. 125, s. 79, it is enacted that "in all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, he may, in like case and manner as hereinbefore provided with respect to mandamus, claim a writ of injunction against the repetition or continuance of such breach of contract, or other injury, or the committal of any breach of contract or injury of a like kind, arising out of the same contract, or relating to the same property or right; and he may also in the same action include a claim for damages or other redress"; s. 80 enacts that "the writ of summons in such action shall be in the same form as the writ of summons in any personal action; but on every such writ and copy

thereof there shall be endorsed a notice that in default of appearance the plaintiff may, besides proceeding to judgment and execution for damages and costs, apply for and obtain a writ of injunction; ' and s. 81 that "the proceedings in such action shall be the same, as nearly as may be, and subject to the like control, as the proceedings in an action to obtain a mandamus under the provisions hereinbefore contained; and in such action judgment may be given that the writ of injunction do or do not issue, as justice may require; and in case of disobedience, such writ of injunction may be enforced by attachment by the Court, or when such Courts shall not be sitting by a Judge."