« EelmineJätka »
Superior Courts: V. C. Kindersley.-7. C. Stuart,
156 time of his sisters, without issue, having left and the plaintiff, in trust by sale or mortgage the property to trustees for a term of years to to pay his debts, &c. It appeared that the be computed from the death of his surviving plaintiff paid the amount secured by the deed sister, in trust for their respective right heirs of December, 1824, to Mr. Reynolds, who as tenants in common. Jane Lloyd pre- gave a receipt for the same, but that no transdeceased her sister Catherine, who died a few fer of the mortgage was executed, and he unmonths after she had entered into the contract dertook to execute a transfer on its being tenwith the railway company, and her next of kin dered. This bill was now filed for a fore(of whom there were ten, but one declined to closure, and an objection was inade that Mr. join therein) now applied for leave to take pro- Reynolds should have been made a party. ceedings against the sister's heiress-at-law, Craig and T. H. Terrell, in support of the who claimed her moiety as unconverted, to de- objection, cited Wood v. Williams, 4 Madd. termine the right.
186. Amphlett and Bazalgette in support, citing Bacon and W. A. Collins for the plaintiff; Adams v. London and Blackwall Railway Como Wigram and Coryton for the trustees ; Shebpany, 2 M‘N. & G. 118 ; Exparte Flamank, 1 beare for other parties. Sim. N, S. 260.
The Vice-Chancellor said, that the case Cairns, contrà.
must stand over, with liberty to amend by The Vice-Chancellor, without giving any adding parties. opinion ou the question, said, that a reference must be directed at Chambers as to what pro- In re Forbes, exparte Buckinghamshire Railway ceedings should be taken-with liberty to any
Company. April 28, 1854. of the next of kin to authorise the personal representative to take such proceedings.
RAILWAY COMPANY. COSTS OF ADVERSE
CLAIMANT ON PETITION FOR INVEST-
Cook v. Gregson. April 29, 1854.
F. had, on the hearing of a petition by infants ADMINISTRATION OF ASSETS. PRIORITY
for the investment of the proceeds of land OF PAYMENT OF IRISH DEBTS OUT OF
taken by a railway company, appeared adIRISH ASSETS,
versely, but his claim was disaliowed, and [ A testator died in Ireland owing debts there
an order made as prayed, with costs of the and in this country, but his executors col.
petitioners and F. to be paid by the railway lected the Irish assets and brought them
company, ercept such as were occasioned here : Held, that the Irish debts were to be
by litigation between adverse claimants,
and the minutes were settled with this dipaid out of the Irish assets in priority to the English debts.
rection as to costs: An application was re
fused to strike out F.'s name, and the It appeared that the testator had died in
amount of cosis he should be allowed left to Ireland, and that his executors had collected
the Taring Masier. the Irish assets and brought them to this
On the hearing of a petition for the investcountry. The testator owed debts in both
ment of the proceeds of certain lands taken by countries. The Vice-Chancellor said, that it was the duty devised by the late John Forbes to the infant
the above railway company, and which were of the executors to have paid the debts in Ire. land before they brought over to this country peared and claimed adversely. An order was
petitioners, the present Sir Charles Forbes apany part of the Írish assets, and that payment made for an investment and in favour of the of such debts must be therefore made before infants, with costs of the petitioners and of Sir the English debts. Toller, Giffard, and Cotton for the several such as were occasioned by litigation between
C. Forbes to be paid by the company, except parties.
Chapman, for the railway company, now Vice-Chancellor Stuart.
applied with reference to the minutes of the Hichens v. Kelly. April 28, 1854.
order, and contended that as the claim of Sir
C. Forbes had been disallowed his name should FORECLOSÚRE SUIT. -TRUSTEE OF MORT
in the order. GAGE-OUTSTANDING LEGAL ESTATE.
Wigram, contrà. PARTIES.
The Vice-Chancellor said, that as the mi. Held, that the trustee of a mortgage, where nutes had been settled, it must be left to the i no transfer is taken on its being paid off Taxing Master to say what costs Sir C. Forbes 1 is a necessary party to a suit to foreclose should be allowed.
the mortgage, although he undertook to execute a transfer on its being tendered.
Tottenham v. Emmett. April 29, 1854. The testator, in December, 1824, had assigded certain leasehold property in Cornwall DISMISSING BILL WITH costs on DEFEND
ANT'S SETTING DOWN FOR HEARING. by way of mortgage to Mr. Wm. T. Reynolds to secure a sum of 6001.
, with interest, adyanced by Mrs. Sarah Clarke, and by will
DECRER. he gave aít his leasehold property to his son One of the defendants set down the cause for
WILL. CONSTRUCTION, CONDITION AT
TACHED OF RESIDENCE ON ESTATE DE-
BY MORTGAGE OF
Superior Courts : V. C. Stuart.-V. C. Wood. hearing and obtained a decree dismissing Walcot v. Botfield. March 17; April 24, the bill with costs as against him upon the
1854. plaintiff not appearing: A similar decree was made on the application of a co-defend. ant, although he had not been served with a subpona to hear judgment.
A testator directed the person who should for It appeared that this þill had been set down
the time being come into possession of his by one of the defendants for hearing, and that
mansion-house, to reside therein for the on the plaintiff not appearing, a decree was
period of six months in each year, computmade dismissing it with costs as against him. ing from January 1 in one year to January
Malins and H. Wright also appeared on be- 1 in the next year, with a forfeiture of cerhalf of a co-defendant, but who had not been
tain sums in default : Held, that the word served with a subpæna to hear judgment, and “residence” implied a personal presence, made a similar application.
that a residence of six lunar months or 168 The Vice-Chancellor said, that the defendant
days was a compliance with the direction, was entitled to a similar decree to dismiss the
that the residence need not be consecutive, bill with costs.
and that presence for any part of a day
was residence for the day. Vice-Chancellor wood.
The testator, William Botfield, by his will, Thornton v. Thornton. April 24, 1854.
dated in Nov. 1849, directed that his nephew,
Beriah Botfield (who was tenant for life), or CHARITABLE BEQUEST OF MONEYS SECURED his sons or daughters or any person taking in
MORTMAIN remainder after him, who should for the time
being come into the possession and beneficial Held, that sums of money secured by an as- enjoyment of his mansion-house of Decker
signment by wuy of mortgage of the Bir-Hall, in the county of Salop, should reside mingham Town Hall rates under the hands therein for the period of six months in each and seals of the Commissioners, were with year, computing from January 1 in one year to in the 9 Geo. 2, c. 36, s. 3, as securities January 1 in the next year, or that in default offecting land, inasmuch as the power of thereof should forfeit and pay for the first year collecting the rates vested in the Commis- of such non-residence 1,cool., for the second sioners passed io the mortgagee; and a be- year the like sum, for the third year 2,0001., quest of such moneys was therefore held and for the fourth year 3,0001., to be applied void.
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 re
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 two sums of 1,0001. each, secured by an as
of Parliament, and the keeping up of a suitable signment by way of mortgage of the Birming- establishment, should be equivalent to the six ham Town Hall rates, under the hands and months' residence. It appeared that the tesseals of the Commissioners, under the 9 Geo. 4,
tator's nephew had kept up an establishment c.liv., s.95. A question now arose, on exception of servants between 1st January 1852, and 1st to the Master's report, whether these securities January 1853, but had not resided there six were not within the 9 Geo. 2, c. 36, s. 3, and months in the whole, although, frequently the bequest therefore void.
visiting and sleeping there, This bill was filed W. M. James and Baggallay for the trea- by the trustees of the will to take the opinion surer of the society, in support of the excep
of the Court as to its construction. tions; Rolt and Cole for the next of kin,
The Vice-Chancellor, after quoting the above contrà, were not called on ; C. M. Roupell for clause in the will, imposing the forfeiture on the trustees.
non-residence said, that by the use of the word The Vice-Chancellor said, that according sence, and such was the sense it had in the
“residence" the will implied a personal preto 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 places, could not be allowed to do away with rates when actually collected, it appeared that 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 compliar.ce 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 orerruled.
for any part of a day must be considered as residence for the day. There would be a de
NEXT OF KIN.
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 1,0001., to be WILL.--CONSTRUCTION.- REFERENCE AS TO applied at their discretion in building, drain. ing, or other permanent improvements on the
The testator gave personal estate in trust for estate.
his daughter for life for her sole and sepa
rate use, and directed, in the event of her Harvey v. Harvey. March 21 ; April 24, 1854. dying without issue, his trustees to pay, asEXECUTOR.-ADVANCE BY TO DISCHARGE
sign, and transfer the same unto the execuINCUMBRANCE ON ESTATE.--DEPOSIT OF
tors or administrators, or other legal repreDEEDS.-STATUTE OF LIMITATIONS.
sentatires of his daughter, of her own A testator died in 1816, devising a farm to
proper blood and kindred: Heid, that her the defendant mortgaged for 7001., and he
next of kin, and not the executors appointed directed the residue of his property in
by the daughter, who died without having money and debts due to be applied in pay
married, were entitled, and a reference was
directed to ascertain the same. ment of the expenses of the purchase (one instalment of the purchase-money only hav
The 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 425l. 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 kindred. It appeared that the daughier, on the plaintiff without, hourrer, any memo- her death without having married, had apranium of deposit. There ius no pay pointed by her will, dated in August, 1849, ment of interest within 20 years : Heli, her brother and another person as her executhat although the advance constituted á tor3, whereupon her next of kin claimed to be charge, the claim was barred by the Statule entitled, and filed this petition as to the conof Limitations.
struction of the will. The testator having purchased a farm in! J. V. Prior in support ; W. Hislop Clarke Essex for a sum payable by instalments, and Hallett for executors, contrà. Cur. ad. vull.
and Roche for parties in the same interest ; of which the first instalment of 1001, had been paid, died in February, 1816, and by his will be taken to exclude any interest in the hus
The Vice-Chancellor said, that the will must after devising inter alia a farm to his son, band if the daughter had married, and to proRobert Harvey (the plaintiff), he gave the farm in Essex to his son, Edward Harvey (the would therefore be a declaration that her next
vide for its going to her own relatives. There defendant), “mortgaged for 7001.," with benefit of survivorship as to both; and he directed of kin were entitled, and an inquiry be directed the residue of his property in money and debts to ascertain the same. • due to him to be applied in payment of the expenses of the purchase and the mortgage of
In re Ward's Estate. April 29, 1854. such farm. It appeared that a sum of 1,6251. LUNATIC. was due of the purchase-money, and the plaintiff, who was acting executor, had applied the funds in hand in discharge thereof, and had An order was made on the petition of the papaid the remainder, amounting to 425l. bim- rish officers for the sale of a sufficient part self
. The conveyance was taken to the de- of a sum of stock in Court, to which the fendant, with remainder in fee tail to the plain- lunatic was entitled, to meet the expenses of tiff, and the title-deeds were handed to the his maintenance and support by the parish, plaintiff, as was alleged, to secure the advance, together with the costs. but there was no memorandum of deposit. It appeared that Robert Prosser, a lunatic, No interest had been paid, nor was there any had been maintained by the parish of St. receipt given to the plaintiff for the sum he Marylebone at the Peckham House Asylum advanced.
PAYMENT OUT OF FUND IN COURT TO PARISH OFFICERS OF EXPENSES OF MAINTENANCE.
and Colney Hatch, and that he was entitled to Chandless and Howe for the plaintiff; Rolt a third share in a sum of stock paid into Court and Selwyn for the defendant.
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 Upfulls Trust, 3 MÅN. & G. 281. interest within 20 years, the claim was barred The Vice-Chancellor made the order accordby the Statute.
Superior Courts : Queen's Bench.
held, that as the justices had exercised their Harris y, Carter. April 24, 1854.
discretion under sect. 8, the rule must be
refused. ACTION BY SEAMAN AGAINST OWNERS FOR
This was a motion for a rule nisi for a INCREASED WAGES, CONSIDERATION FOR
mandamus on the justices of the county of FRESH ARTICLES.
Southampton, to make an order for the payment A seaman had shipped himself on board the by the county treasurer of the account of their
defendants' vessel to Melbourne and India surveyor, for extra services. It appeared that and back, at the rate of 31. per month, but an annual salary of 25l. was paid, but that ceron the desertion of some of the crew at tain allowances were made for extra services. Melbourne, the captain had entered into By the Statute of Bridges (22 Hen. 8, c. 5), fresh articles with such as should remain sect. 8, it is enacted, that “the justices of the at 6l. per month. In an action to recover peace, or four of them, shall have full power the 31. increased wages, held, that as the and authority to allow such reasonable costs plainlif' had not been released from the ob- and charges to the said surveyors and collecligation of the former articles, there was tors, as by their discretion shall be thought no consideration for the fresh articles, and convenient." the owners were not bound.
Maynard in support. This was an action by a seaman to recover
The Court said, the surveyor was to be refrom shipowners the amount of wages due to compensed in the “discretion ” of the magis. him, and on the trial before Platt, B., at the trates, who had not refused to exercise it, but last Liverpool assizes, it appeared that the had offered 100l. as the sum which he was enplaintiff had shipped himself in the defendants' titled to receive. The rule was therefore revessel to Melbourne and India and back, at the fused. rate of 31. per month, but that on the desertion of some of the crew at Melbourne, the captain
Regina v. Williams. April 29, 1854. had entered into fresh articles with such as should choose to remain at 61. a month. The POOR-RATE.—LIABILITY OF TENANT FROM defendants had paid the wages at the rate of 31. per month into Court, and denied their lia
OF KILLING GAME. bility to the additional amount. By the 13 & Held, confirming the order of sessions on a 14 Vict. c. 93, s. 46, it is enacted, that " every special case, that the yearly tenant of a master of a ship shall, on carrying any seaman farm, who also rents the right of taking to sea as one of his crew, enter into an agree. and killing game and rabbits thereon, is ment with him in the manner hereinafter men- liable to be rated to the poor in respect of tioned; and every such agreement shall be in such privilege as well as of his occupation a form to be sanctioned and issued by the
of the land. Board of Trade, and shall be dated at the time of the first signature thereof, and shall be
From this special case for the opinion of signed by the Master before any seaman signs Mr. Williams was yearly tenant of the Ham
the Court from the sessions, it appeared that the same," &c. A nonsuit having been directed, subject to
bleton farm, in the township of Boltby, Yorkleave reserved to set it aside and enter a ver- land, part of which consisted of moors, and
shire West Riding, and also of 700 acres of dict for the plaintiff, Milward accordingly now moved, citing thereof and also of the right of taking and
that he was rated to the poor-rate in respect Stilk v. Myrick, 2 Camp. 317, and contended killing game and rabbits on the whole land, it did not apply: The Court said, that as the plaintiff had not
which privilege he had rented of his landlord been released from the obligation of the ar
six months after the commencement of his ticles he had signed, the master had no autho
tenancy. rity to bind the owners by a fresh agreement, Price contrà, on the ground the privilege was
Hall in support of the rate; Welsby and for which there was no consideration, and the unconnected with the occupation and was perrule must be refused.
The Court said, that if the privilege had been Regina (Exparte Gover) v. Justices of South- disputed he would be liable to be assessed in rer
originally let with the land, it would hardly be ampton. April 28, 1854.
spect thereof, and under the circumstances the
ALLOWANCE TO party was in the same situation. The order of COUNTY SURVEYOR BY JUSTICES.-MAN- sessions would therefore be affirmed.
YEAR TO YEAR IN
RESPECT OF RIGHT
The magistrates had made an order for the Regina v. Justices of East Stonehouse. "April allowance of 1001, to the county surveyor,
29, 1854. appointed under the 22 Hen. 8, c. 5, for extra services. On a motion for a rule nisi REMOVAL OP PAUPER. — WIFE AND CHIL for a mandamus on them to make an order for the payment of the amount he claimed, The wife and five children of a person who
DREN OF MARINE.
ING THOROUGHFARE.- CONVICTION.
Superior Courts : Queen's Bench.-Common Pleas.
19 had entered in the marines many years Exparte Wright, in re April 29, 1854. since, kad resided in a parish for upwards APPLICATION ON ATTORNEY TO ACCOUNT of five years : Held, that they were irre.
AND PAY OVER BALANCE.-FRAUDULENT morable, and an order of sessions quashing such order of removal wus on special cause A., having been appointed to collect rents for affirmed.
different persons, arranged with an attor. This was a special case from the quarter
ney to introduce business to him, and that sessions, quashing on appeal an order for the
the attorney should pay over such sums as removal of the wife and five children of George
he might recover, deducting certain fixed Wawn, who had enlisted in the marines in
charges for what he should do, and that he 1834. It appeared that the parties were married
should make certuin charges on the debtor at East Stonehouse, and lived there as long as
in case the claim were not settled, and pay her husband was quartered in the place. It
over a certain portion to A. : Held, that was admitted the paupers had resided in the
the facts disclosed a fraudulent conspiracy, parish for five years.
and a rule was refused on the application Rowe in support of the order of sessions,
of A. on the attorney to account and pay referred to the 11 & 12 Vict. c. 111; Karslake,
over the balance. contrà.
This was a motion for a rule nisi on an atThe Court said, that as it could not be said torney to account fur certain sums received on the basband was removable his wife and chil- the account of the applicant, who had been apdren were irremovable, and the order of ses- pointed to collect rents for different persons, sions quashing the order of reinoval was there- and had arranged with the above attorney to fore affirmed.
introduce business to him, and that the attor.
ney should pay over such sums as he might Regina (exparte London Police Commissioners) what he should do. It was also arranged that
recover, deducting certain fixed charges for v. Wyng. April 29, 1854.
the attorney should make certain charges on METROPOLITAN POLICE ACT. — Obstruct the debtor in case the claim was not settled,
and pay over a certain portion to the present Quære, whether a conviction under the 2 & 3 ment over of the balance after the deduction of
applicant. The application asked also for pay, Vict. c. 47, s. 54, for wilfully obstructing certain costs. a thoroughfare is supported by evidence,
Quain in support. that the defendant waited with his em
The Court said, that the facts disclosed a ployers' cart for an hour while ar.other cart fraudulent conspiracy on the part of the appliwas unloading ut their warehouse. But the cant and the attorney, and the rule was accordCourt refused to decide the question on a ingly refused. The affidavits to be handed in special case, wil hout a regular information and filed, in order to determine what ulterior and conviction.
steps should be taken. It appeared that the defendant, who was the servant of Messrs. Travers, wholesale
Court of Common Pleas. grocers in St, Swithin's Lane, had been con- Wilson v. Wilson. April 28, 1854. victed under the 2 & 3 Vict. c. 47, s. 54,' for wilfully obstructing a throughfare. It appeared that he had waited an hour while another cart was unloading at his employers' warehouse. The defendant had been summoned
The defendant agreed to purchase the lease of and convicted, subject to a special case to this
a house for 1,1501., of which 501. was to be Court.
paid down, and that if either party broke Wilde in support of the conviction; Ballan
the bargain, a sum of 1001. should be fortine for the defendant,
feited and paid us a debt, and to be so rc"The Court said, that in order to obtain the
coverable. The defendunt paid 5l. down Opinion of this Court there must be a regular
and gave an 1 O U for the remaining 45l., information and conviction, and refused ac
but refused to complete on its appearing that cordingly to entertain the question.
the plaintif had committed a breach of the covenant to insure in the lease by not renewa
ing the policy until after its expiration : Which enacts that “ every person shall be
Held, that the plaintif could not recover on liable to a penalty not more than 408., who the 10 U nor the 100l. penalty, as there within the limits of the metropolitan police dis- was no consideration in consequence of the trict shall in any thoroughfare or public place" breach of covenant. "cause any cart,” &c., " to stand longer than
This was a rule nisi obtained by Byles, S. L., may be necessary for loading or uploading,"
of who by means of any cart,” &c., shall on April 19 last, to set aside a nonsuit and enwilfully interrupt any public crossing, or wil. ter the verdict for the plaintiff for 451. in this fully cause any obstruction in any thorough
action. It appeared on the trial before Tal. fare: 143
fourd, J., at the last sittings at Westminster, that the defendant had agreed to purchase the
lease of a public house for 1,1501., of which ny
ACTION TO RECOVER PENALTY ON CON
TRACT TO PURCHASE LEASEHOLD HOUSE.