148 Superior Courts: Court of Chancery.-V. C. Kindersley.—Queen's Bench. living at the death of Mrs. Naylor were entitled to the annuity during their lives, and not to the annuity fund, and the order of the Court below would be varied in that respect. (Coram Lord Chancellor and Lords Justices.) WILL. CONSTRUCTION.-DISCHARGE OF Where a testator, by his will, empowered his THIS was an appeal from the decision of ViceChancellor Kindersley (reported 1 Drewry, 488). The testator, by his will, dated in August, 1833, after appointing his wife sole executrix, bequeathed to her all his personal property, to her own use, and he directed her out of the rents or arrears of rent due at his death to pay his debts, &c. He then gave an estate to his nephew, John Pollock, subject to an annuity of 40l. to his, the testator's wife, and after appointing certain persons his trustees, he gave to them all his estate at Sowerby Row, in the parish of Castle Sowerby, and his estate at Longlands, in the parish of St. Mary Without, with power to let the same, until all his nephews and nieces should be of the age of 21. He also gave to his sister 107. a year to be paid to her for life, the other part of the rents to pay his just debts, in the event of any bonds or notes standing against him at the time of his death; and he directed that after the youngest of his nephews and nieces should be of age, the estates should be sold by his trustees to the best advantage, and the price thereof go equally share and share alike amongst all his nephews and nieces, except the two named, and that, should his sister be living, then his trustees should secure her 207. a year during her life, and after her decease to be divided as above. No wood was to be cut or sold but what might be wanted for necessary repairs of the buildings which the testator left to the discretion of his trustees. The Vice-Chancellor having held that the widow was put to her election in respect of her right of dower in the Sowerby and Longlands' estates, this appeal was presented. Swanston and Bagshawe in support; Glasse and Murray, contrà; Willcock and Bovill for other parties. The Court said, that it was evidently the testator's intention to discharge the realty from the wife's dower, which was evidenced by the powers given to the trustees of cutting timber, of granting leases, and of sale, and the appeal would therefore be dismissed. Vice-Chancellor Kindersley. MENT OF REVERSIONARY INTEREST. Held, that the equity of a married woman to a settlement does not attach in respect of a reversionary interest to which she is entitled under a will, although her husband has been bankrupt, and an injunction was refused to restrain him from dealing with the same. THIS was a claim on behalf of a married woman to obtain the settlement of a reversionary interest in certain stock to which she was entitled under the will of a Mr. George Slack, in the event of his daughter dying without issue. It appeared that her husband had been twice bankrupt. An injunction was asked for in the alternative to restrain the husband from dealing with the reversion. A. J. Lewis, in support, referred to Ellis v. Ellis, 1 Vin. Abr. 475. Amphlett for the assignees, contrà. The Vice-Chancellor said, that although the inclination of the Court was to assist and protect the wife, yet in accordance with the decision of Osborn v. Morgan, 9 Hare, 432, 4 (cited by Darling, amicus curia), the declaration could not be made in respect of the reversionary property. Court of Queen's Bench. Meyers v. Tills. June 6, 1854. cOUNTY COURT APPEAL.-TROVER.—EVI DENCE OF CONVERSION. It appeared, on the trial of a plaint in the THIS was an appeal from the decision of the Judge of the Rutland County Court, directing a nonsuit in this plaint, to recover possession of certain goods which were stolen from the plaintiff and found in the defendant's possession. It appeared that on the plaintiff making a demand, the defendant had replied he should take advice, but had afterwards delivered them up to another party. The question was, whether such delivery amounted to a conversion. Hayes for the plaintiff; T. Campbell Foster for the defendant, on the ground there was only a qualified refusal, and that an appeal would not lie. The Court said, that the question, whether the facts amounted to a conversion, was one of law, for which an appeal would lie, and that as the defendant had given the goods up to a wrong party after a demand by the plaintiff, who was found by the case to be the owner, there was a conversion, and the nonsuit must be set aside with costs. Superior Courts: Queen's Bench. Held, that a steam tug is not within the 7 & 8 Geo. 4, c. lxxv., s. 37, which imposes a penalty on any person, not being a freeman of the Watermen's Company, navigating any wherry, lighter, "or other craft," on the riter Thames for hire. THIS was a case for the opinion of this Court on an appeal to the Sessions from a conviction under the 7 & 8 Geo. 4, c. lxxv,, s. 37,' against the defendant for navigating a steam tug on the river Thames both beyond and within the limits of the Act, in taking a merchant ship into one of the docks. It appeared that the defendant was neither a freeman of the company nor an apprentice to a freeman. M. Chambers and Ballantine in support of the conviction; Sir F. Thesiger and Milward, contrà, Tisdell v. Combe, 3 New. & P. 29, was cited. The Court said, that although the words "or other craft" might be so used as to include a steam tug, yet as this Act established a monopoly, and besides imposed a penalty, it should be construed strictly. These words must be ejusdem generis with the preceding words "wherry" and "lighter," and did not include a steam tug. The case cited at bar, and which decided that a steam tug was a craft within s. 57, did not apply, as that section was not to give a monopoly or impose a penalty, but power to make regulations for the safety of the public. The conviction would, therefore, be quashed. Jackson v. Henderson. June 7, 1854. RIGHT OF LESSEE TO MANUFACTURE TINPLATES UNDER LICENCE TO CARRY ON IRON MANUFACTORY. 149 question for the jury, and a rule for a new trial was refused. THIS was a rule nisi to set aside the verdict for the defendant and for a new trial. It appeared that the defendant occupied certain works in Cumberland, under a lease from the plaintiff, which contained a licence authorising him to carry on an iron manufacture on the premises, that since 1849 he had used them for the manufacture of iron plates, which were afterwards tinned, and that the number of chimneys had been consequently much increased. On the trial, the jury found, upon the question being left to them, that the works formed substantially an iron manufactory. Pashley, Udall, and Lloyd showed cause against tht rule, which was supported by Edward James and Brett. The Court said, that the question had been properly left to the jury, and the rule was accordingly discharged. Dress v. Savage. June 7, 8, 1854. RULE NISI TO ENTER NONSUIT.-OBTAINING On a rule nisi to set aside the verdict for the THIS was a rule nisi obtained on April 19 last, pursuant to leave reserved to set aside the verdict for the plaintiff and enter a nonsuit in this action of ejectment to recover possession of certain premises upon the expiration of an agreement for a lease for three years. It was contended that the defendant was a yearly tenant, and could not be ejected without notice. The Court struck out the case, upon its appearing when it was called on that the Judge's notes had not been obtained. It appeared that the defendant occupied certain premises under a lease, which contained a licence authorising his carrying on an iron manufactory, but that he had used the premises for the manufacture of iron plates, which were afterwards tinned on the pre- Regina v. Alleyne and others. June 14, 1854. mises. The jury, in an action by the lessor, had found the works were substantially an iron manufactory: Held, that it was a The rule was afterwards discharged on the application of Lush, who had been instructed to show cause. - ATTORNEY-GENERAL. RULE ΤΟ QUASH Semble, that it is not open to the Attorney- Which enacts, that "if any person, not being a freeman of the said company, or an apprentice to a freeman, or to the widow of a freeman of the said company (except as hereinafter is mentioned), shall at any time act as a waterman or lighterman, or ply, or work, or navigate, or cause to be worked or navigated, any wherry, lighter, or other craft, upon the said river, from or to any place or places, or ship or vessel, within the limits of this act, for hire or gain (except as hereinafter is mentioned) every The Attorney-General, Temple, and Huddlesuch person shall forfeit and pay for every ston, for the defendants, appeared to show such offence any sum not exceeding 10." THIS was a rule nisi to quash the writ of error upon the judgment in this prosecution, on the ground that it had been sued out with a view to a compromise. cause. 150 121 Superior Courts: Queen's Bench.-Common Pleas.-Exchequer. The Court granted the application. Court of Exchequer. The Court said, that the Attorney-General property to which she was entitled, without the ought to appear officially on the part of the concurrence of her husband, whom, it ap-' Crown, and not for the defendants. The peared, she had left in Jamaica in the year ground for the rule was, that the Attorney- 1829, and had not heard from since 1840. General, on whose fiat the writ had issued, had Byles, S. L., in support. been imposed upon. Though there was, according to our criminal jurisprudence, no public prosecutor whose duty it was to appear in all cases on behalf of the Crown, in such a case as the present the Attorney-General ought ex necessitate rei to appear in his official capacity. It was to be regretted that the defendants should be deprived of the highest assistance at the Bar, but in a case like the present it was essentially necessary for the Attorney-General to attend, not in his private capacity as an advocate, but to assist the Court in the administration of justice and to see that justice was done. As counsel, however, for the defendants, it would be the duty of the Attorney-General, although it might be not per fas et nefas, to use his utmost exertions to obtain the decision of the Court in their favour. He had also the power to enter a nolle prosequi, and his predecessor in office had been consulted on this very proceeding. The Attorney-General said, that under these circumstances he would retire, and the case accordingly stood over to allow the parties an opportunity of retaining other counsel. Clayton v. Percy. June 6, 1854. INFRINGEMENT OF PATENT.-ATTACHMENT. The plaintiff had recovered a verdict in an action for the infringement of a patent, and a Judge's order in the nature of an injunc-TM tion had been obtained and made a rule of Court and personally served on the defendant: Upon his continuing the infringement, a rule was made absolute for an attachment. THIS was a rule nisi granted on May 27 last, for an attachment against the defendant, against whom the plaintiff had recovered a verdict in an action for the infringement of a patent. It appeared that an order in the nature of an injunction had been granted by Platt, B., and had been made a rule of this Court and served personally on the defendant, but that he continued the infringement of the patent at his manufactory in Manchester. Chance now moved on an affidavit of the service of the rule nisi to make the rule absoEdwin James and Hawkins appeared for the lute, upon the defendant not appearing to other side. Plowden v. Campbell. June 15, 1854. PLAINTIFF IN SERVICE OF EAST INDIA COMPANY.-SECURITY FOR COSTS. Held, that the plaintiff in an action, who was in the civil service of the East India Company, and resided in Bengal as a civil and sessions Judge, was liable to give security for costs. THIS was a motion for a rule nisi to rescind an order made by Crompton, J., at Chambers, on the plaintiff, to give security for costs in this action. It appeared that he was in the civil service of the East India Company, and resided in Bengal as a civil and sessions Judge. Hawkins in support, on the ground that the plaintiff was engaged in the public service. The Court said, that as in the present case the domicile was changed, and there was only a remote prospect of the plaintiff's return to this country, he must give security for costs, and the rule would accordingly be refused. Court of Common Pleas. An application was granted for leave to a married woman to execute a conveyance without the concurrence of her husband, from whom she has not heard since 1840. THIS was an application under the 3 & 4 Wm. 4, c. 74, for leave to Mrs. Delany, a married woman, to execute a conveyance of certain show cause. The Court made the rule absolute accordingly.' Vasing v. Watson. June 12, 1854. ACTION FOR PREFERRING INDICTMENT.- Held, making absolute a rule for the new trial A RULE nisi had been granted for a new 1 The attachment was on June 15 discharg 560 T ed on payment of costs. Superior Courts: Court of Exchequer. bones in the fire used by the plaintiff. The magistrate had dismissed the charge which the defendant preferred on the advice of a policeman, whereupon this action was brought. The learned Judge directed the jury that there was a want of reasonable and probable cause, and left the question of malice to the jury, who found for the plaintiff, with 207. damages. Miller, S. L., and O'Brien showed cause against the rule. The Court (without calling on Macaulay and Field in support) said, that although the total want of reasonable cause was evidence from which a jury might infer malice, yet it must be an absolute absence to justify them in finding malice. All which was necessary to justify a charge of felony was a reasonable ground of suspicion, and not such an amount of cause of suspicion as would insure a reasonable belief there would be a conviction. In the present case there seemed to have been reasonable cause, and the f.ding of the jury had been grounded on the want of such justification, and the rule would therefore be made absolute. Theobald v. Railway Passengers Insurance -ACTION ON POLICY OF. Def 151 railway, as he would not be disconnected until› he was safely landed on the platform upon ar riving at his destination. The rule, therefore, so far as sought to have the verdict entered for the defendants on the ground that the accident was not a railway accident, would be discharged. As to the other ground, it must be made absolute to reduce the damages, as the plaintiff could not recover under the policy either for loss of time or profit. It was only incumbent on the defendants, in cases of accident short of death, to compensate the assured to the extent of his expenses, as well as for the injury. Sauville v. Commissioners of Inland Revenue. STAMP ACT.- AD VALOREM DUTY ON PO- Held, that the amount of a policy of insurance By a marriage settlement the plaintiff transferred to trustees a policy of insurance for 4,000l. which he had effected on his own life with the United Kingdom Life Assurance Office. The defendants had held that an ad valorem duty of 5s. per cent was payable under the 13 & 14 Vict. c. 97, to that amount, whereupon this case was stated for the opinion of the Court. The plaintiff, whilst stepping out of a train on a railway for the purpose of continuing his journey by another train, missed his footing, and was injured: Held, that this The Schedule, tit. "Settlement," renders was a railway accident within the meaning chargeable to an ad valorem duty of 58. per of an insurance by the defendants against | cent. any deed or instrument, whether vorailway accidents. luntary or gratuitous, or upon any good or vaHeld, also, that the plaintiff could not re- luable consideration other than a bona fide pecover under the policy either for loss of cuniary consideration, whereby any definite and time or profit, but only in respect of his certain principal sum or sums of money (wheexpenses and compensation for the injury. ther charged or chargeable on lands or other THIS was an action on a policy of insurance hereditaments or heritable subjects, or not, or effected by the plaintiff with the defendants, for to be laid out in the purchase of lands or other the payment of 1,000l. in case of death, and a hereditaments or heritable subjects or not), or proportionate sum for injuries while travelling any definite and certain share or shares in any by railway. The defendants pleaded, that the of the government or parliamentary stocks or accident, with which it appeared the plaintiff funds, or in the stocks and funds of the gohad met by missing his footing while stepping vernor and company of the Bank of England, out of a train for the purpose of continuing or of the Bank of Ireland, or of the East India his journey by another train, was not a railway accident within the meaning of their insurance ticket. On the trial before Pollock, L. C. B., at the Guildhall Sittings, the plaintiff obtained a verdiet for 841. in respect of the accident, and 100%, for loss of time, subject to leave reserved to enter the verdict for the defendants, or to reduce the damages on the question, whether the accident was one for which the defendants were liable, and whether, if they were, their liability extended to the loss of time consequent on the accident. A rule had been accordingly obtained on April 24 last. Bramwell and Phipson showed cause against the rule, which was supported by Sir F. Thesiger and Davison. Cur. ad. vult. The Court said, that the accident had taken place while the plaintiff was a traveller on the Company, or of the South Sea Company, or of any other company or corporation, shall be settled or agreed to be settled upon or for the benefit of any person or persons, either in possession or reversion, either absolutely, or for life or other partial interest, or in any other manner whatsoever." P. Francis for the plaintiff; Pigott for the defendants. The Court said, that no duty was payable under the words in the schedule, and that the plaintiff was entitled to judgment. Beavan v. M'Donnell and another. June 12, ACTION TO RECOVER FORFEITED DEPOSIT On the trial of an action for money had and 152 Superior Courts: Court of Exchequer. 66 received, and to which the defendants plead- before any person having by law or by consent ed that the same was paid as a deposit on of parties authority to hear, receive, and exaa contract for the purchase of an estate mine evidence, the parties thereto and the perand had been forfeited, evidence was ad- sons in whose behalf any such suit, action, or mitted of acts by the plaintiff before and other proceeding may be brought or defended after the contract, showing that his lunacy shall, except as hereinafter excepted, be comwas of such a nature as to have been mani-petent and compellable to give evidence, either fest when the contract was made. The vivá voce or by deposition, according to the plaintiff obtained a verdict. A rule for a practice of the Court, on behalf of either or any new trial on the ground of the reception of of the parties to the said suit, action, or other such evidence was discharged. proceeding;" but by s. 3, nothing herein To this action for money had and received, contained shall render any person who in any the defendants pleaded that the money was criminal proceeding is charged with the comoffence paid as a deposit on a contract for the purchase mission of any indictable offence or any of an estate, and had been forfeited. The plain- punishable on summary conviction, competent tiff replied that he was a lunatic at the time of or compellable to give evidence for or against entering into the contract, to which the defend- himself or herself." ants rejoined that they had entered into the contract fairly and in good faith, and did not know at the time of its being made that the plaintiff was a lunatic. On the trial before Wightman, J., at the last Hereford assizes, evidence was admitted of acts by the plaintiff, before and after the contract, showing that his lunacy was of such a nature as to have been manifest when the contract was made. The plaintiff obtained a verdict, and this rule had been granted on April 24 last for a new trial. Skinner showed cause against the rule, which was supported by Whateley, Gray, and Phipson. The Court discharged the rule. Attorney-General v. Radloff. June 14, 1854. INFORMATION.-EXAMINATION OF DEFEND ANT ON HIS OWN BEHALF. Quære, whether the defendant to an information to recover treble value of tobacco of which he had become possessed without payment of duty, is entitled to be examined as a witness on his own behalf. Watson and J. P. Wilde showed cause The Court (per Pollock, L. C. B., and Parke, B., dissentientibus Platt and Martin, BB.) held, that the present was a criminal proceeding within the proviso to the 14 & 15 Vict. c. 99, and that the defendant was not a competent witness. The rule would therefore fall to the ground; but Alderson, B., who had not heard the arguments, suggested the point should be re-argued before the 15 Judges. In re Stamp Duty on Potter's Deed. May 8; STAMP ACT.-DUTY PAYABLE ON SALE OF On the retirement from a firm of one of the It appeared that on the retirement from a firm of one of the partners, the others had covenanted to purchase the stock-in-trade for 19,000l. and the good-will for 20,000. The Commissioners of Inland Revenue claimed under the 13 & 14 Vict. c. 97, a duty of 2s. 6d. per cent. on the 19,000l., and 108. on the 20,000l., and this case was stated under s. 15, on the question, whether the value of the good-will in a business was "property" with THIS was a rule nisi granted on April 20 last, for a new trial of this information to recover treble value of tobacco of which the defendant became possessed without payment of duty. On the trial before Pollock, L. C. B., the defendant tendered himself as a witness on his own behalf, but had been rejected on the ground the proceeding was of a criminal nature. By the 6 & 7 Vict. c. 85, s. 1, "No person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition according to the practice of the Court on the trial of any issue joined, or of in the Act. any matter or question, or on any inquiry arising in any suit, action, or proceeding, civil or Hindmarch and Webster for the parties, criminal, in any Court, or before any judge, jury, sheriff, coroner, magistrate, or officer contrà, referred to Lyburn v. Warrington, 1 having by law or by consent of parties autho- Stark. N. P. C. 162; Warren v. Howe, 2 B. rity to hear, receive, and examine evidence," & C. 281; Belcher v. Sikes, 6 B. & E. 234; with the exception of the actual parties; and Blandy v. Herbert, 9 B & C. 396. by the 14 & 15 Vict. c. 99, s. 2, On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, or other proceeding in any Court of Justice, or Phinn for the Crown, cited Caldwell v. Dawson, 5 Exch. R. 1. Cur, ad. vult. The Court held that the duty claimed by the Commissioners was payable. |