Notes of the Week.-Superior Courts: Lords Justices. 13 to 107;-of whom 101 were passed, five post- Chancellor intends to suspend the grant of poned, and one received a special certificate on further Commissions, at all events for the a question submitted to the Court regarding present. the sufficiency of the service of the clerkship. In re Minnitt, exparte Russell, April 28, 1854. out of the account. BANKRUPTCY.- ALLOWANCE TO OFFICIAL Held, that the official assignee in bankruptcy Ir appeared that in the Leeds district, and in part of the Birmingham district, a sum of 20 guineas was allowed to the official assignee for preparing the balance-sheet of a bankrupt, and also a similar sum for examining the same. By the 12 & 13 Vict. c. 106, s. 160, it is enacted, that "the bankrupt shall prepare such balance-sheet and accounts, and in such form as the Court shall direct, and shall subscribe such balance-sheet and accounts, and file the same in Court, and deliver a copy thereof to the official assignee 10 days at least before the day appointed for the last examination, or the adjournment day thereof for that purpose," " and the Court may, on the application of the assignees, or of the bankrupt, make such allowance out of the estate of the bankrupt for the preparation of such balance-sheet and accounts, and to such person as the Court shall think fit, in any case in which it shall be made to appear to the satisfaction of the Court, from the nature of the accounts or other good cause, that the bankrupt required assistance in that behalf." James and Hardy, for the creditors' assignee, contended that the allowance of a fee for preparing the balance-sheet was not authorised by the Act. Bacon and Prior for the official assignee. The Lords Justices said, that it was the duty of the official assignee to correct and examine the balance-sheet prepared by the bankrupt, and such duty was inconsistent with that of preparing the balance-sheet. The principle applicable was similar to that in respect of receivers, to which office a Master could not be appointed as he had to check the accounts, nor a committee of a lunatic for a similar reason, and on the same ground a bankrupt who had been appointed assignee of his own estate had been removed by the Court. The payment could Exparte Bailey and another, in re Burrell. BANKRUPT TREASURER OF BENEFIT BUILD ING SOCIETY.- PROOF BY TRUSTEES IN Held, dismissing with costs a petition of ap- THIS was a petition of appeal from the decision of Mr. Commissioner Goulburn,, refusing to allow a claim by the trustees of the Barnstable and Chafford Benefit Building Society for payment out of the estate of a bankrupt treasurer of the amount which he owed to the society. It appeared that the trustees had not taken proper security from the bankrupt before appointing him as treasurer. Swanston and Terrell for the trustees, in support; Rolt and Bagley for the assignees, contrà, Cur, ad. vult. The Lords Justices said, that the 12 & 13 Vict. c. 106, s. 167,' was confined to societies established under the Friendly Societies' Acts, 1 Which enacts, that "if any person, already appointed or employed, or who may be hereafter appointed to or employed in any office in any society established under any of the Acts relating to Friendly Societies, and being interested with the keeping of the accounts, or having in his hands or possession, by virtue of his office or employment, any moneys or effects belonging to such society, or any deeds or securities relating to the same, shall have been or shall become bankrupt, the Court shall, upon application made by the order of any such society, or any committee thereof, order payment and delivery over to be made to such society, or to such person as such society or committee may appoint, of all moneys and other things belonging to such society,-and shall 14 Superior Courts: Justices.-Rolls.-V. C. Kindersley. Vice-Chancellor Kindersley. and did not include the present society, which solvency, and there must be a specific performwas under the Acts relating to Benefit Build-ance on payment of the purchase-money less ing Societies. The Consolidation Act appropri- the amount deposited. ated the estate for the benefit of ali creditors equally, and it would be therefore inconsisten to give full payment to any one not specially provided for by the Act. The Commissioner had decided the case irrespective of the fact. whether the entries in the bankers' pass-book were or were not genuine, and it was unneces sary to give any opinion on that question. The petition would be dismissed with costs. Master of the Rolls. Rowe v. May and another. May 2, 1854. VENDOR AND PURCHASER.-SPECIFIC PER- " In re Hardy's Estate, ex parte Sheffield Junction -COSTS OF ABORTIVE PETITION BY TE- Where on a reference to the chief clerk, upon In this petition by the tenant for life for the investment of the proceeds of certain land taken by the above railway company, the chief clerk had on a reference certified against the investment as inadvisable, it being in houses and not land. A question now arose as to the costs. Fooks for the petitioner, cited In re Woolley's Estate. 17 Jur. 850; Exparte Stevens, 15 Jur. 243; Humphreys for the railway company. Roberts v. Roberts. April 29, 1854. Certain property was put up to auction under a power of sale contained in a mortgage, subject to certain conditions of sale, and the plaintiff afterwards purchased, subject to such conditions, and paid a deposit to the auctioneer in accordance therewith: Held, that upon the insolvency of the auc tioneer and consequent loss of a portion of the deposit, the vendors, and not the vendee, must bear the loss, and on a suit by the The Vice-Chancellor said, that the cases vendee, a decree for a specific performance cited only applied when the investment prowas made on payment of the purchase- posed was proper and unobjectionable. The money less the amount deposited. order would therefore be for the payment of THIS was a suit for the specific performance the company's costs out of the fund in Court, of an agreement for the sale to the plaintiff of and no order would be made on the petition. certain premises at Camberwell. It appeared that the defendant, Mr. Wm. D. Pritchard had mortgaged to the defendant, Mr. Jas. B. May, for a term of years, with a power of sale, and that the property had been put up under the power to auction, subject to certain conditions of sale, but had been afterwards purchased by the plaintiff for 6301., subject to such conditions of sale. A deposit of 120l. was paid thereunder to Mr. Mills, the auctioneer employed by the vendors, and an abstract of title to the property was forwarded to the plaintiff's solicitor, but ultimately an arrangement was made, in consequence of there being many judgments against Mr. Pritchard, for the purchase of the term of years at a small reduction in price. Before, however, the matter was completed, the auctioneer became insolvent, and 50%. only of the deposit could be recovered, and the question now arose whether the plaintiff or the vendors were to bear such loss. WILL.-CONSTRUCTION. CLAIM OF NEXT OF KIN AGAINST HEIRESS AT LAW. REFERENCE TO CHAMBERS AS TO PROCEEDINGS. A railway company contracted for the purchase of land with the surviving tenant for life, who soon afterwards died, and her next of kin claimed under a will against the heiress-at-law of her sister, and nine out of the ten next of kin applied for leave to take proceedings against the heiress atlaw to determine their right. A reference was directed at Chambers as to what proceedings should be taken, with liberty to any of the next of kin to authorise the personal representative to take the same. IT appeared that certain lands had been taken by the Chester and Holyhead Railway Company, under a contract with Catherine Lloyd, the surviving tenant for life thereof, and which were devised under the will of a testator to Hugh Lloyd for life, with remainder to his first and other sons in tail male, with remainder to his sisters Jane and Catherine Lloyd for life, as tenants in common, with realso order payment out of the estate and effects mainder to trustees to preserve contingent reof the bankrupt of all sums of money remain-mainders, with remainder to their first and ing due, which the bankrupt received by virtue other sons in tail, with remainder to the testaof his said office or employment, before any tor's own right heirs. Hugh Lloyd died withother of his debts are paid or satisfied." out children before the testator and in the life R. Selwyn and Horsey for the plaintiff; Palmer and Goldsmith for the defendant. The Master of the Rolls said, that the auctioneer had been employed by the vendors, and it would therefore be unjust to make the vendee share in the loss occasioned by his in d Superior Courts: V. C. Kindersley.-V. C. Stuart. time of his sisters, without issue, having left the property to trustees for a term of years to be computed from the death of his surviving sister, in trust for their respective right heirs as tenants in common. Jane Lloyd predeceased her sister Catherine, who died a few months after she had entered into the contract with the railway company, and her next of kin (of whom there were ten, but one declined to join therein) now applied for leave to take proceedings against the sister's heiress-at-law, who claimed her moiety as unconverted, to determine the right. Amphlett and Bazalgette in support, citing Adams v. London and Blackwall Railway Com pany, 2 M'N. & G. 118; Exparte Flamank, 1 Sim. N. S. 260. Cairns, contrà. The Vice-Chancellor, without giving any opinion on the question, said, that a reference must be directed at Chambers as to what proceedings should be taken-with liberty to any of the next of kin to authorise the personal representative to take such proceedings. April 29, 1854. Cook v. Gregson. ADMINISTRATION OF ASSETS. PRIORITY OF PAYMENT OF IRISH DEBTS OUT OF IRISH ASSETS. A testator died in Ireland owing debts there and in this country, but his executors collected the Irish assets and brought them here: Held, that the Irish debts were to be paid out of the Irish assets in priority to the English debts. Ir appeared that the testator had died in Ireland, and that his executors had collected the Irish assets and brought them to this country. The testator owed debts in both countries. The Vice-Chancellor said, that it was the duty of the executors to have paid the debts in Ireland before they brought over to this country any part of the Irish assets, and that payment of such debts must be therefore made before the English debts. Toller, Giffard, and Cotton for the several parties. Vice-Chancellor Stuart. FORECLOSURE SUIT. — TRUSTEE OF MORT- PARTIES. Held, that the trustee of a mortgage, where no transfer is taken on its being paid off is a necessary party to a suit to foreclose the mortgage, although he undertook to execute a transfer on its being tendered. THE testator, in December, 1824, had assigned certain leasehold property in Cornwall by way of mortgage to Mr. Wm. T. Reynolds to secure a sum of 6001., with interest, advanced by Mrs. Sarah Clarke, and by his will he gave all his leasehold property to his son 15 and the plaintiff, in trust by sale or mortgage to pay his debts, &c. It appeared that the plaintiff paid the amount secured by the deed of December, 1824, to Mr. Reynolds, who gave a receipt for the same, but that no transfer of the mortgage was executed, and he undertook to execute a transfer on its being tendered. This bill was now filed for a foreclosure, and an objection was made that Mr. Reynolds should have been made a party. Craig and T. H. Terrell, in support of the objection, cited Wood v. Williams, 4 Madd.. 186. Bacon and W. A. Collins for the plaintiff; Wigram and Coryton for the trustees; Shebbeare for other parties. The Vice-Chancellor said, that the case must stand over, with liberty to amend by adding parties. In re Forbes, exparte Buckinghamshire Railway RAILWAY COMPANY. COSTS OF ADVERSE F. had, on the hearing of a petition by infants On the hearing of a petition for the investment of the proceeds of certain lands taken by devised by the late John Forbes to the infant the above railway company, and which were peared and claimed adversely.. petitioners, the present Sir Charles Forbes apmade for an investment and in favour of the An order was infants, with costs of the petitioners and of Sir C. Forbes to be paid by the company, except such as were occasioned by litigation between adverse claimants. Chapman, for the railway company, now applied with reference to the minutes of the order, and contended that as the claim of Sir C. Forbes had been disallowed his name should not in the order. appear Wigram, contrà. The Vice-Chancellor said, that as the minutes had been settled, it must be left to the Taxing Master to say what costs Sir C. Forbes should be allowed. Tottenham v. Emmett. April 29, 1854. ANT'S SETTING DOWN FOR HEARING. One of the defendants set down the cause for ́ 16 Superior Courts: V. C. Stuart.-V. C. Wood. WILL. - hearing and obtained a decree dismissing Walcot v. Botfield. Ir appeared that this bill had been set down by one of the defendants for hearing, and that on the plaintiff not appearing, a decree was made dismissing it with costs as against him. Malins and H. Wright also appeared on behalf of a co-defendant, but who had not been served with a subpoena to hear judgment, and made a similar application. The Vice-Chancellor said, that the defendant was entitled to a similar decree to dismiss the bill with costs. Vice-Chancellor Wood. Thornton v. Thornton. April 24, 1854. CHARITABLE BEQUEST OF MONEYS SECURED BY MORTGAGE OF RATES. MORTMAIN ACT. -- March 17; April 24, 1854. CONSTRUCTION. CONDITION ATTACHED OF RESIDENCE ON ESTATE DEVISED. A testator directed the person who should for the time being come into possession of his mansion-house, to reside therein for the period of six months in each year, computing from January 1 in one year to January 1 in the next year, with a forfeiture of certain sums in default: Held, that the word "residence" implied a personal presence, that a residence of six lunar months or 168 days was a compliance with the direction, that the residence need not be consecutive, and that presence for any part of a day was residence for the day. THE testator, William Botfield, by his will, dated in Nov. 1849, directed that his nephew, Beriah Botfield (who was tenant for life), or his sons or daughters or any person taking in remainder after him, who should for the time being come into the possession and beneficial enjoyment of his mansion-house of Decker Held, that sums of money secured by an assignment by way of mortgage of the Bir-Hall, in the county of Salop, should reside mingham Town Hall rates under the hands and seals of the Commissioners, were with in the 9 Geo. 2, c. 36, s. 3, as securities affecting land, inasmuch as the power of collecting the rates vested in the Commissioners passed to the mortgagee; and a bequest of such moneys was therefore held void. re therein for the period of six months in each year, computing from January 1 in one year to January 1 in the next year, or that in default thereof should forfeit and pay for the first year of such non-residence 1,600l., for the second year the like sum, for the third year 2,000/., and for the fourth year 3,000l., to be applied by the trustees at their discretion in building, THE testatrix, by her will, after giving vari- draining, or other permanent improvements on ous charitable pecuniary legacies, gave the the estate; and it was provided, that in the sidue of her estate to the treasurer for the time event of the party being a Member of Parliabeing of the British and Foreign Bible Society. ment, the residence for three months including It appeared that part of her estate consisted of an occasional residence there during the sitting of Parliament, and the keeping up of a suitable two sums of 1,000/. each, secured by an assignment by way of mortgage of the Birming-establishment, should be equivalent to the six ham Town Hall rates, under the hands and seals of the Commissioners, under the 9 Geo. 4, c.liv., s. 95. A question now arose, on exception to the Master's report, whether these securities were not within the 9 Geo. 2, c. 36, s. 3, and the bequest therefore void. W. M. James and Baggallay for the treasurer of the society, in support of the exceptions; Rolt and Cole for the next of kin, contrà, were not called on; C. M. Roupell for the trustees. months' residence. It appeared that the tesof servants between 1st January 1852, and 1st tator's nephew had kept up an establishment January 1853, but had not resided there six months in the whole, although, frequently visiting and sleeping there, This bill was filed by the trustees of the will to take the opinion of the Court as to its construction. The Vice-Chancellor, after quoting the above clause in the will, imposing the forfeiture on non-residence said, that by the use of the word 66 residence" the will implied a personal preThe Vice-Chancellor said, that according sence, and such was the sense it had in the to Finch v. Squire, 10 Ves. 41, money secured Statutes having reference to the clergy, by assignment of poor and county rates was which had a considerable bearing on the queswithin the Mortmain Act and could not pass tion. The fact of its being inconvenient for to a charity, and there was no essential differ- the party, who had property at a distance to ence between that and the present case. As to superintend, to have residences in the two the point that the assignment was only of the rates when actually collected, it appeared that places, could not be allowed to do away with the express words of the will. Six lunar the Commissioners had clear power under months' residence, however, that is, 168 days the Act to collect the rates, and such power in the aggregate, would be a compliance with passed to the mortgagee, who had therefore an the direction, and it was not necessary that the interest affecting land. The exception would residence should be consecutive, and presence accordingly be overruled. for any part of a day must be considered as residence for the day. There would be a de Superior Courts: Vice-Chancellor Wood. 17 claration accordingly, and for the trustees to In re Morgan's Trust. April 22, 29, 1854. retain out of the rents and profits 1,000l., to be WILL.-CONSTRUCTION.-REFERENCE AS TO applied at their discretion in building, draining, or other permanent improvements on the estate. Harvey v. Harvey. March 21; April 24, 1854. EXECUTOR.-ADVANCE BY TO DISCHARGE NEXT OF KIN. The testator gave personal estate in trust for his daughter for life for her sole and separate use, and directed, in the event of her dying without issue, his trustees to pay, assign, and transfer the same unto the executors or administrators, or other legal representatives of his daughter, of her own proper blood and kindred: Held, that her next of kin, and not the executors appointed by the daughter, who died without having married, were entitled, and a reference was directed to ascertain the same. A testator died in 1816, devising a farm to the defendant mortgaged for 700l., and he directed the residue of his property in money and debts due to be applied in payment of the expenses of the purchase (one instalment of the purchase-money only havTHE testator, by his will dated in January, ing been paid at the testator's death) and of 1825, gave certain personal estate in trust for the mortgage. The plaintiff, as acting exe- his daughter for life, for her sole and separate cutor, accordingly applied the funds to such use, and in the event of her dying without discharge, but had himself advanced a sum issue, he directed his trustees to pay, assign, of 4251. which was required to make up the and transfer the same unto the executors or amount due. The conveyance was to the administrators, or other legal representatives defendant, with remainder in fee tail to the of his daughter of her own proper blood and plaintiff, but the title-deeds were handed to the plaintiff without, however, any memoranium of deposit. There was no pay. ment of interest within 20 years: Held, that although the advance constituted a charge, the claim was barred by the Statute of Limitations. THE testator having purchased a farm in Essex for a sum payable by instalments, and of which the first instalment of 100%, had been paid, died in February, 1816, and by his will, after devising inter alia a farm to his son, Robert Harvey (the plaintiff), he gave the farm in Essex to his son, Edward Harvey (the defendant), "mortgaged for 7001.," with benefit of survivorship as to both; and he directed the residue of his property in money and debts due to him to be applied in payment of the expenses of the purchase and the mortgage of such farm. It appeared that a sum of 1,625. was due of the purchase-money, and the plaintiff, who was acting executor, had applied the funds in hand in discharge thereof, and had paid the remainder, amounting to 4251. himself. The conveyance was taken to the defendant, with remainder in fee tail to the plaintiff, and the title-deeds were handed to the plaintiff, as was alleged, to secure the advance, but there was no memorandum of deposit. No interest had been paid, nor was there any receipt given to the plaintiff for the sum he advanced. Chandless and Howe for the plaintiff; Rolt and Selwyn for the defendant. kindred. It appeared that the daughter, on her death without having married, had appointed by her will, dated in August, 1849, her brother and another person as her executors, whereupon her next of kin claimed to be entitled, and filed this petition as to the con struction of the will. J. V. Prior in support; W. Hislop Clarke and Roche for parties in the same interest; Hallett for executors, contrà. Cur. ad. vull. be taken to exclude any interest in the husThe Vice-Chancellor said, that the will must band if the daughter had married, and to provide for its going to her own relatives. There would therefore be a declaration that her next of kin were entitled, and an inquiry be directed to ascertain the same. In re Ward's Estate. April 29, 1854. LUNATIC. PAYMENT OUT OF FUND IN COURT TO PARISH OFFICERS OF EXPENSES OF MAINTENANCE. An order was made on the petition of the parish officers for the sale of a sufficient part of a sum of stock in Court, to which the lunatic was entitled, to meet the expenses of his maintenance and support by the parish, together with the costs. Ir appeared that Robert Prosser, a lunatic, had been maintained by the parish of St. Marylebone at the Peckham House Asylum and Colney Hatch, and that he was entitled to a third share in a sum of stock paid into Court and standing to the credit of this cause. This The Vice-Chancellor held, that the advance petition was therefore presented for the sale constituted a charge; and on the question, and payment to the parish officers of so much whether the claim was not barred by the of the stock as would raise the sum so exStatute-there having been no acknowledg-pended, together with the costs. ment by payment of interest or receipts-(after R. Moore in support, referred to the 7 & 8 taking time to consider) said, that as the plain- Vict. c. 101, s. 27, and 12 & 13 Vict. c. 103, s. tiff had been unable to make out payment of 16, and In re Upfull's Trust, 3 M'N. & G. 281. interest within 20 years, the claim was barred The Vice-Chancellor made the order accordby the Statute. ingly, |