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Superior Courts: Lords Justices.—Rolls.-V. C. Kindersley.


Lards Justices.

In re Ashworth. June 19, 1856.


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.

Ir 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.

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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.


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.


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

Superior Courts: V. C. Kindersley.-V. C. Wood.

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


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

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to give security for costs. It appeared that plaintiff was a labourer, and rented a cottage at Louth in Lincolnshire, and had duly paid his rent, but that he had not been there since April, 1855, and his solicitor refused to give any information as to where he could be found.

Toller in support, citing Bailey v. Gundry, 1 Keen, 53. C. L. Webb contrâ.

The Vice-Chancellor said that on the authority of the case cited the usual order must be made for security for costs.

Otter v. Vaux. June 20, 1856.


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.

It 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 one 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


Superior Courts: Court of Queen's Bench.-Court of Exchequer.

mortgagor's hands was therefore liable to the plain- | tiff'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.



diately after the making of such bill of sale or at any future time, to seize or take possession of any property and effects comprised in or made subject to such bill of sale, and every schedule or inventory which shall be thereto annexed or therein referred to, or a true copy thereof, and of every attestation of the execution thereof, shall together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occuIn an action for nuisance before a Serjeant-at-pation of the person making or giving the same, Law in the Commission of Assize, the plaintiff &c., be filed with the officer acting as clerk of the obtained 40s. damages, and a certificate was docquets and judgments in the Court of Queen's granted for a special jury, and that the action Bench, within 21 days after the making or giving was brought to try a right: Held that the Serjeant of such bill of sale (in like manner as a warrant of had power to certify for costs under the 13 g 14 attorney in any personal action given by a trader Vict. c. 61, s. 12, after the trial. is now by law required to be filed)."


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 herein before 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.


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.

By the 17 & 18 Vict. c. 36, s. 1, it is enacted, that "every bill of sale of personal chattels made after the passing of this Act, either absolutely or conditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power, either with or without notice, and either inme

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.

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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 herein before 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."

Montague E. Smith showed cause against the rule The Court (without calling on Bovill in support), said that the rule would be made absolute for an injunction, notwithstanding it involved the pulling down so much of the building as obstructed the plaintiff's enjoyment of his ancient lights.

The Legal Observer,



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ECCLESIASTICAL | the Registrars, Deputy Registrars and Proc


THE Solicitor-General's amended bill may now be considered as including within its clauses the several Bills of Sir Fitzroy Kelly and Mr. Collier, and we have before us the consolidated print as amended in committee and re-committed for further consideration. We shall proceed to notice briefly the principal parts of the measure as now under consideration, and the alterations which have been adopted since the bill was last before our readers.

There is to be a distinct "Court of Probate and Administration,” as well of real as personal estate, with power to grant certificates of intestacy, and to decide on the construction of wills, to declare the rights of the parties, and administer the assets of deceased persons (s. 6).

The judge must have been an advocate of ten years' or a barrister of fifteen years' standing. The judges of the common law courts, the Master of the Rolls, and the Vice Chancellors may sit with or in the absence of the judge (ss. 6, 12).

Then a

Testamentary Office is to be established in such place as her Majesty in council may appoint (we presume) in the metropolis; and also District Testamentary Offices in each of the circuits of the county court judges (ss. 22, 3).

The Officers of Court (with power to increase the number) are to be

In the Testamentary Office:
One principal Registrar;
Three Registrars;

Ten Official Proctors;

So many principal Clerks, Assistant
Clerks, &c., as may be necessary.

In the District Office:

One Registrar:

So many Clerks as may be necessary (s. 24).

The Accountant-General and Taxing Masters of the Court of Chancery are to act as such in the New Court (s. 67).

As to the Practitioners, it is provided that
VOL. LII. No. 1,478.

tors in the present ecclesiastical courts may,
within a year, be admitted as solicitors and
attorneys in the superior courts of law and
equity (s. 33); and the Articled Clerks and
Proctors who have already served, or may
entitled to admission on the roll of solicitors
hereafter complete their service, are to be
articled to solicitors (s. 34).
on the same conditions as if they had been

the Probate Court; and the commissioners for
All solicitors and attorneys may practise in
New Court (s. 35).
taking oaths in chancery may take oaths in the

Proctors, solicitors, or attorneys appointed to any office under the act are not to practice (s. 124).

to admi

The registrars are to have nister oaths (s. 125); and the judge may power appoint commissioners for that purpose (s. 126).

The Mode of Proceeding to obtain probate purpose of including applications to the disor administration has been altered, for the trict registrar.

Testamentary Office, or with a district regisThe will, and a copy, are to be left at the trar, as the case may be, with such affidavits as are requisite, according to the forms given in the schedules to the act.

registrar any question arising in the transacIn the case of an application to a district ferred to the principal registrar for the tion of common form business, may be redirections of the judge (s. 42).

But no probate or administration is to be granted through a district office, unless the deceased had a fixed place of abode in the district and the personal estate does not exceed £1,500 (s. 43). And it is not obligatory to apply to a district office (s. 45).

A note of the probate and a copy of the will or of the administration is to be sent by the district registrar to the principal registrar (s. 46).

Probate and other official copies of wills or administrations are to be printed under the diections of the principal registrar, and printed copies sent to the Metropolitan Register Office of births and deaths; the Prerogative Office in Dublin; the Commissary in Edinburgh; where the deceased died, &c. (ss. 47, 48.) the clerk of the county court in the district



The Amended Ecclesiastical Courts Bill-Testamentary Jurisdiction.

These printed copies may be inspected for a fee of 6d., and printed official copies may be obtained, or official extracts (ss. 50, 52).

Provisions are made as to the time of proving wills and rendering inventories, &c. (ss. 53, 56). And for entering caveats, and as to proceedings to establish wills (ss. 58, 65).

The court is empowered to appoint a representative of real estate (ss. 67, 73). And the powers of such representatives are defined (ss. 74, 82). Power is also given to appoint administrators (ss, 90, 96).

Appeals are to lie from the Probate Court to the Lords Justices, and thence to the House of Lords; or to the House of Lords in the first instance (s. 38).

The Trial of Issues on questions of fact arising in suits in the Probate Court, may be directed to take place before itself by a special or common jury, or before any judge of assize (ss. 100, 104).

Jurisdiction of the County Courts. If the personal property be under £200, the county court of the district where the deceased died may decide all disputed questions. So where the real and personal property is under £300 (ss. 105, 106). And the clerk of the county court is to transmit to the registrar a certificate of the decision of the county court (s. 107).

The Fees of the court are to be regulated by the Lord Chancellor, and to be paid by stamps (ss. 131, 134, 137).

The Salaries are specified in Schedule F., viz. :

Principal Registrar, £2,500; Three Registrars, each £1,500; Sixty District Registrars, each £500; Ten Official Proctors, each £800. Compensations to the judges and officers of the abolished courts appear to be most amply provided; and the advocates of Doctors Commons may practise not only in the Probate Court but in all the superior courts.

The compensation to the Proctors is to be estimated by the Lords of the Treasury, and annuities granted equal to one half the net profits of each proctor in respect of testamentary causes and matters, founded on the average of five years immediately preceding the commencement of the act (ss. 145, 146).

And, as before stated, the proctors are to be entitled to admission within twelve months in all the superior courts as solicitors and attorneys.

Such are the proposed enactments in the amended bill, and we are assured there is every probability that it will be passed; yet we are now in the first week in July, and it is rumoured that the session will close before the end of the month. The measure has yet to pass through all its stages in the Upper House. If, however, the compensations have been accepted, and a satisfactory compromise

made with the former opponents of the reform, there is time in two or three weeks to steer to the haven of royal assent.

The preceding statement will have shewn several of the last alterations made in the Solicitor-General's Bill; and we subjoin the following notes, more particularly calling attention to the new clauses:

Section 23 establishes DISTRICT testamentary offices in the circuits of the county court judges, and provides a distinct registrar, clerks, messenger, &c.

Section 39 enacts that, persons desirous of proving a will or obtaining administration must apply personally or through a solicitor at the Testamentary Office, and leave the will and also a copy, with an affidavit, according to the form in schedule C. But where the application made to a district registrar the person applying may employ a solicitor or agent.*

The district registrar is to administer oaths; and by the 40th section he is directed to transmit to the principal registrar the original will, affidavit, and other papers, and the principal registrar shall thereupon cause probate, &c. to issue, and forward the same to the district registrar, with such number of printed official copies as shall be required.

The district registrar is then to enter the probate or a note of the administration in a "district search


The registrar or district registrar is then to deliver or transmit a probate through the post to the person applying as his solicitor.†

But no probate or administration, according to section 43, can be granted in a district office, unless the intestate or testator had a fixed place of abode within the district, and unless the personal estate does not exceed £1,500.

The 45th section gives the option of applying either to testamentary or the district office.

Then the 46th section enacts, that a copy of the will or note of administration is to be sent to the registrar, monthly, by the district registrar of wills and administrations granted during the preceding month.§

The jurisdiction of county courts is provided by the 105th section, where the personal property is under £200, in which case the county courts may decide all disputed questions. So by the 106th section, where the real and personal estate is under £300, the judge of the county court is to have the same jurisdiction as the court of probate.|| Section 107 directs the clerk of the county court to transmit to the registrar a certificate of the decree for the grant or revocation of probate.

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