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

The Lords Justices said, that the appeal must be dismissed, but without costs.

Master of the Rolls.

Baker v. Read. April 28, 29, 1854.

BILL TO

SET ASIDE SALE AS FRAUDU-
LENT.-LACHES.

A bill filed in 1850 was dismissed without
costs, to set aside the purchase in 1833 of
certain property by the defendant, and

which he held as executor under a will in trust for sale-where there was no excuse shown for the delay.

THIS was a bill to set aside the purchase of certain property by the defendant, and which he held, as executor, under a will in trust for sale.

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Baily and Grenside for the wife; G. Lake Russell for the husband; Fleming for the trustees.

The Vice-Chancellor said, the intention of the covenant was that property over which the husband had any power should be settled on the trusts of the settlement, and that in respect queathed to her separate use, he had no power, of the property in question, which was beand it must be transferred to such parties as she might direct for her exclusive use.

Flight v. Camac. May 9, 1854.

VENDOR AND PURCHASER. DEDUCTION OF
INCOME TAX ON PAYMENT OF PURCHASE-
MONEY INTO COURT WITH COSTS.

The deduction by a purchaser of income tax
on the interest payable, was disallowed on
payment of the purchase-money into Court,
under the 16 & 17 Vict. c. 34.

The Master of the Rolls said, that the transaction took place in 1833, and the bill was not filed till 1850. There was no evidence to show that the parties did not know at the time they Whitehead applied for the direction of the were selling to their trustee, although by the Court in reference to the right of a purchaser rules of this Court he was not permitted to to deduct income tax on the interest payable, purchase from his cestuis que trusts. It ap-on payment of the purchase-money into Court. peared they had a solicitor to advise and protect them, and, although, if the application had been sooner, they could have obtained a decree to set it aside, upon the evidence, that the property might have fetched a higher price, yet as no excuse was shown for the delay in coming to the Court, no relief could now be given: Champion v. Rigby, 1 Russ. & M. 539; Lord Selsey v. Rhoades, 1 Bli. N. S. 1; 2 Sim. & Stu. 41; Gregory v. Gregory, Coop. Chan. Cas. 201; Jacob. 631. The bill would therefore be dismissed, but without costs.

Vice-Chancellor Kindersley.
Ramsden v. Smith. May 8, 1854.

HUSBAND AND WIFE.-COVENANT BY HUS-
BAND TO SETTLE WIFE'S FUTURE PRO-
PERTY.-CONSTRUCTION.

In a marriage settlement the husband cove-
nanted that he would do all acts necessary
for settling to the same uses as those men-
tioned in the settlement all property which
might be given or bequeathed to his wife:
Held, that property bequeathed to her se-
parate use was not subject to the settlement,
which only affected such property over
which the husband had power, and that
therefore the wife was entitled to have the
same transferred to such parties as she
might direct for her exclusive use.

By the marriage settlement of Mr. and Mrs. Ramsden, the former covenanted that he would do all acts necessary for settling to the same uses as those mentioned in the settlement all property which might be given or bequeathed to his wife. The trusts of the settlement were for the husband for life, with remainder to the wife for life, with remainder to the issue of the marriage. It appeared that certain property had been afterwards bequeathed to her separate use, and the question was, whether there should be a settlement of the same.

It appeared that the practice had been under the 5 & 6 Vict. c. 35, to disallow the deduction, but as the 16 & 17 Vict. c. 34, s. 40, entitled and authorised the purchaser to make the deduction, while in the former Act (s. 102) he was only authorised to deduct income tax, the question was now raised.

Jones Bateman for the vendors.

The Vice-Chancellor said, that although it might be just a purchaser should be entitled to deduct income tax, yet as the opposite practice had prevailed' and there was nothing in the new Act to alter it, it must be adhered to, and if an alteration were desired an application must be made to the Lord Chancellor.

Vice-Chancellor Stuart.

Brook v. Biddall. May 3, 1854. ATTENDANCE OF WITNESSES BEFORE MAS

TER.

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ORDER FOR A COMMITMENT ON DEFAULT.-COSTS.

An order was made, with costs, on motion exparte for the attendance on the Master within four days to give evidence, of two clerks of a solicitor, or on default for their committal to the Queen's Prison, where they had omitted to attend in pursuance of a subpoena ad test. in consequence of their employer refusing to allow them to attend unless on payment of the usual fees. THIS was an exparte motion for an order on the two clerks of a solicitor to attend the Master within four days to give evidence, o on default for their committal to the Queer. Prison. It appeared that they had been served with a subpoena ad test., but had made default in consequence of their employer refusing to allow them to attend unless on payment of the usual fees.

'See Humble v. Humble, 12 Beav. 43; Holroyd v. Wyatt, 1 De G. & S. 125.

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Superior Courts: V. C. Stuart.-V. C. Wood.-Queen's Bench.

J. H. Palmer, in support, cited Hennegal v. Evance, 12 Ves. 201.

The Vice-Chancellor granted the application, with costs.

WILL.

Cooke v. Wagster. May 3, 1854.

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CONSTRUCTION. WHAT PASSES UNDER WORDS READY MONEY." A testator gave to his widow all his ready money and securities for money, money in the funds, and money in the bank, if any, which might be due and owing to him at his death: Held, that a sum in the hands of a person for investment, and for which the testator's personal representative had proved in an administration suit of such person's estate, passed to the widow, where there would otherwise be an intestacy. THE testator, by his will, dated in April, 1848, gave to his widow all his ready money and securities for money, money in the funds, and money in the bank, if any, which might be due and owing to him at the time of his death. It appeared that the testator had directed his solicitor to pay a portion of the proceeds of sale of a real estate to a Mr. Chambers, a surveyor, for investment; and that at the time of Mr. Chambers' death the same remained in his hands. The testator's personal representative had obtained the allowance in an administration suit of a claim for such amount after deducting a sum due from the testator, and the question now arose, whether such amount passed to the widow under the will.

Prior and Eddis for the plaintiff; C. Hall for the personal representative.

The Vice-Chancellor said, that, having regard to the circumstance that there would be an intestacy as to the amount in question if it did not pass under the gift, and the testator's intention would not be accomplished by its exclusion, it must be held to pass under the words "ready money" to the widow.

Vice-Chancellor Wood.

Clive v. Clive. May 4, 1854.

WILL.-CONSTRUCTION.- PERSONAL OCCU

PATION OF HOUSE.CALLS ON SHARES PAYABLE OUT OF RESIDUE.-DIVIDENDS. A testator gave all his freehold and leasehold property, &c., in trust to permit his wife pendente viduitate to have the use and enjoyment of his house, &c., and of all his household furniture, &c., for her natural life, and also the interest and annual income arising from shares in a navigation comvany: Held, on special case, that she was not restricted to the personal use and occupation of the house and furniture, that calls on the shares made soon after the testator's death were payable out of the residuary estate, and that she was entitled to the dividends thereon, upon the construction of the company's deed of settlement under which the dividend was held in suspense

until some other person became the proprietor.

THE testator, by his will, dated in June, 1852, after directing the payment of his debts and funeral and testamentary expenses, gave all his freehold and leasehold property, and his trades, ready money, mortgages, shares in public companies, and all other his estate and effects, in trust to permit his wife to have the use and enjoyment of his house, garden, and premises situate at Handsworth, free of ground rent, and also the use and enjoyment of all his household furniture, &c., then in and about the said house, for the term of her natural life durante viduitate, and also by codicils the interest and annual income arising from certain shares in the Peninsular and Oriental Steam Navigation Company. The testator died in November, 1852, and a call was afterwards made on some of the shares, and in the following December a dividend was declared in respect of the earnings up to the preceding Michaelmas. It appeared that by the company's deed of settlement the net profits were divisible rateably among the proprietors to such an amount as the directors should decide on and declare at the annual or half-yearly general meeting, and no holders of shares were entitled to any dividend thereon declared after they should have ceased to be proprietors thereof. This special case was now stated for the opinion of the Court, on the questions whether the widow was restricted to the personal use and occupation of the house and furniture, or whether she might let it; whether the calls on the above shares were payabble out of the residuary estate or by the widow; and whether the dividend declared in December formed part of the residuary estate or belonged to the widow.

Rolt and Karslake for the executors; James and Morris for the widow; Bovill and T. H. Terrell for other parties.

The Vice-Chancellor said, that the widow and all persons claiming under her were entitled to have the use and enjoyment of the house and furniture during her widowhood, and that in accordance with Jacques v. Chambers, 4 Rail. Ca. 499, the calls on the shares were payable out of the testator's residuary estate. As the testator must be taken to be aware of the effect of the deed of settlement, and the dividend would, under it, be held in suspense until some other person became the proprietor, and the case amounted to a specific devise, the widow was entitled to the dividend, and there would be a declaration accordingly.

Court of Queens Bench.
Exparte Bailey and another. May 1, 1854.
CONVICTION OF COLLIERS FOR ABSENTING
THEMSELVES FROM MASTERS' SERVICE,-
ORDER OF COMMITMENT.

Held, that the order of commitment by a
justice under the 4 Geo. 4, c. 34, of colliers
for absenting themselves from their masters'
service without their consent and without

Superior Courts: Queen's Bench.

any lawful excuse, need not set out that the witnesses were examined in their presence, provided it shows a contract to serve within the Act.

Ir appeared that two colliers had been convicted, on the complaint of the agent of Messrs. Marshall, for absenting themselves from their service without their consent and without any lawful excuse, and an order for their commitment to prison for two calendar months, with hard labour, was thereupon made by one of the justices for the county of Monmouth. The commitment set out that the defendants had contracted with Messrs. Marshall in the capacity of colliers for the term of one month, and so on from month to month, determinable upon either party giving one month's notice, for the wages of 1s. 10d. per ton for cutting coal. A habeas corpus had been granted, and the prisoners were discharged on recognizances, and this motion was now made to discharge such recognizances.

Smythies in support, on the ground that the warrant was bad for not setting out that the witnesses were examined in the prisoner's presence, that they had not entered into any contract of service, nor were guilty of any breach of contract.

Huddleston, contrà.

The Court said, the warrant appeared to have been made in execution of a preceding conviction, and did not therefore require the strictness contended for. It showed there was a contract to serve within the 4 Geo. 4, c. 34, and it was for the justice to determine whether there had been any breach. The motion would accordingly be refused.

Coke v. Bishop. May 1, 1854.

NEW TRIAL ON DISCOVERY OF FRESH EVI

DENCE.-PAYMENT INTO COURT.-COSTS.

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trial before Lord Campbell, C. J., at the sittings after Michaelmas Term last, the defendant had failed in establishing his plea of fraud in the representation of the amount of the business which afterwards only turned out to be about 127. a week, but it had been since discovered that the plaintiff had employed persons to purchase articles at the shop, and it was sought to have their evidence on the new trial.

E. James and Dowdeswell showed cause against the rule, which was supported by Chambers and Needham.

The Court said, that the rule would be absolute on payment of costs and the payment of the 2001. into Court.

Regina v. Justices of Staffordshire.

1854.

May 8,

LIGHTING AND WATCHING ACT.-ADOPTION
OF. MEETING OF RATEPAYERS.

Held, that the meeting under the 3 & 4 Wm.
4, c. 90, of ratepayers of a district in order
to adopt the provisions of the Act, must be
called by the churchwardens of the parish
in which the district is situate, and not by
the chapelwardens of such district.
The objection of the meeting being properly
convened may be taken on an application on
justices to issue a distress warrant for
rates, and is not affected by s. 66.

THIS was a rule nisi obtained on January 24 last, to issue a distress warrant for rates under the 3 & 4 Wm. 4, c. 90 (the Lighting and Watching Act).

150%.

It appeared that at a meeting, in the year 1851, of the ratepayers of the district of Brierly Hill, in the parish of King's Winford, it was resolved that the district should be placed under the provisions of the 3 & 4 Wm. 4, c. 90, and that inspectors had been accordingly appointed, who made an order on the overseers In an action to recover the balance due under for a rate for the current year amounting to an agreement for the purchase of a business, lected, the overseers went out of office, and an Before, however, the whole was colthe defendant pleaded fraud, but being un-order was made in 1853 for the collection of able to support the plea, the plaintiff ob- the arrears as well as of a new rate then made, tained a verdict. Fresh evidence was the same, they were summoned before the deand on the new overseers refusing to collect fendants, who however refused to issue their warrant an objection having been taken that the notice convening the original meeting of ratepayers was bad, and that the churchwardens of the parish, and not of the district, were the proper parties to convene the meeting.

H. Hill and Cowling showed cause against the rule, which was supported by Keating and Bros.

afterwards discovered, held, that a new trial could only be granted on payment of ⚫ the sum into Court as well as of the costs. THIS was a rule nisi obtained by M. Chambers, Q. C., on April 19 last, to set aside the verdict for the plaintiff and for a new trial of this action, which was brought to recover the sum of 2007, the balance due under an agreement entered into by the defendant to purchase a business carried on by the plaintiff's wife in Pimlico. It appeared that on the purchase The Court said, that as the chapelwardens of being contemplated, the defendant had asked the district were not the persons to convene the the production of the books, but that it had meeting and to give the notices, what had been been stated none were kept, as it was a ready done was void, and the act had not been promoney business, and that thereupon the party perly adopted. The 66th section, which gave for whom the defendant purchased had at- a right of appeal, only applied where the act tended according to permission for a week, to had been lawfully adopted, and the objection see the extent of the business done, when it could now be taken. The rule would therefore appeared it amounted to 30%. a week, where-be discharged, but without costs. upon the agreement had been signed. On the

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Superior Courts: Queen's Bench.

Regina v. Brydges and others. May 8, 1854.

QUO

WARRANTO.

WHEN IMPROPERLY

MOVED.-COSTS.-ATTORNEY.

A rule was discharged, with costs to be paid by the attorney, for a quo warranto on a district burial board, on the affidavit of the relator that he had signed the affidavit on which the rule was obtained without having read it, and that he objected to be a party to the proceedings, and was a pauper, and the Court refused to allow another relator to be substituted.

A RULE nisi for a quo warranto had been granted in this case on the defendants, who were the members of a burial board at Melcombe Regis.

Sir F. Thesiger showed cause on an affidavit of the relator that he had signed the affidavit on which the rule had been granted without knowing its contents, and that he did not wish to be a party to the proceedings, and was a

pauper.

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was received by the post in the appellant parish on a Sunday morning: Held, that the service was good, and was as of Monday morning.

THIS was a motion for a rule on the defendants to show cause why they refused to hear an appeal against an order for the removal of a pauper lunatic from Greenwich to Kimbolton. It appeared that the order was received in Kimbolton by post on a Sunday morning, and the question was, whether the service was good. By the 29 Chas. 2, c. 7, s. 6, it is Lord's Day shall serve or execute, or cause to enacted, that " no person or persons upon the be served or executed, any writ, process, warrant, order, judgment, or decree (except in cases of treason, felony, or breach of the peace); but that the service of every such decree shall be void, to all intents and purwrit, process, warrant, order, judgment, or Lewis, resp., 2 Com. B. 60). whatsoever." poses (See Colvill, app., v. Deedes in support.

as

The Court said, that the service was good of the Monday morning.

Exparte Ainger. May 8, 1854.

ARTICLED CLERK. DISCHARGE OF AR.
TICLES ON ATTORNEY ABSCONDING.

An application was granted to discharge an
articled clerk from his articles, where the
attorney had absconded and gone to
America.

THIS was an application to discharge an articled clerk from the articles he had entered into with an attorney, who had since absconded and gone to America.

Keane in support.

The Court granted the application.'

Regina v. Registrar of the Pharmaceutical
Society. May 9, 1854.

On the assessment of damages before the Secondary, in an action for damages for breach of an agreement by the defendant, to take the plaintiff into partnership, evidence was adduced of the withdrawal by consent, of a plea of fraud: Held, that it was inadmissible, and a new trial was ordered. Ir appeared in this action to recover damages for the breach of an agreement whereby the defendant had agreed to take the plaintiff in RETURN TO MANDAMUS.-TRIAL BY COMpartnership, as a ship and insurance broker, that on the assessment of damages before the Secondary evidence had been admitted of the withdrawal by consent of a plea of fraud. A rule nisi had therefore been obtained for a new trial, on the ground of the improper admission of this evidence, whereby the amount of damages given was greater.

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Wordsworth showed cause; H. S. Giffard support.

The Court said, the question was what loss the plaintiff had sustained by the breach of contract, and these could not be affected by the plea of fraud, and the admission of the evidence of its having been pleaded would tend to inflame the damages. The rule would therefore be made absolute.

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MON JURY, WHERE QUESTION
CATED.

COMPLI

A motion was refused for a rule nisi to try by a common jury the return to a writ of mandamus on the registrar of the Pharmaceutical Society to make out a register of the members of the society under the 15 & 16 Vict. c. 56, where the question at issue was a complicated one.

THIS was a motion for a rule nisi to try by common jury the return to this writ of mandamus on the defendant to make out a register of the members of the society under the 15 & 16 Vict. c. 56 (reported ante, vol. 47, p. 284).

H. Lloyd in support, on the ground that the question at issue was merely whether certain

See Exparte Wilkinson, 9 Dowl. P. C. 320; Exparte Carnley, 2 Dowl. N. S 945; 12 Law J., N. S, Q. B. 98; Exparte Hawke, 45 Leg. Obs. 283; Anon. 2 Chit. 62; 1 Chit.

The order for the removal of a pauper lunatic | 558, n.

Superior Courts: Queen's Bench.-Queen's Bench Practice Court.

parties were entitled to be on the register without having undergone an examination.

The Court said, that the question was a complicated one, and the rule was accordingly refused.

Dawson v. Williams, clerk. May 9, 1854.

APPLICATION TO SET ASIDE WRIT OF SE-
QUESTRATION AS IMPROPERLY ISSUED.
-RULE ENLARGED.

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plaintiff was arrested on the allocatur which was afterwards given. An application for a habeas corpus in order that he might move in person to be discharged had been refused, and on his taking the benefit of the Insolvent Debtors' Act, an order was made for his discharge at the end of 10 calendar months.

The plaintiff in person in support.

The Court said, that even if the proceedings were irregular, the application being after the lapse of 12 months, was too late. The pracA plaintiff who had recovered judgment tice of parties suing in person applying for against a defendant issued a levari facias writs of habeas corpus in order to conduct their and obtained a writ of sequestration against own litigation had become an extensive evil, his benefice, but it was directed not to be exe- and would not be allowed, except under special cuted unless it should be necessary to secure circumstances. Such parties must get others the plaintiff's priority. On the defendant's to conduct their case, and if not they must insolvency and appointment of a provi- take the consequences. The rule would theresional assignee, it was discovered a prior fore be refused. sequestration had been issued by the plaintiff. A rule to set it aside was enlarged in order that the assignee might, on the return thereto of nulla bona, try the question.

THIS was an application to set aside a sequestratien issued by the plaintiff on the defendant's benefice. It appeared that he had issued a levari facias, and that the writ of sequestration which issued thereon had been directed not to be executed, except it should be necessary for the purpose of maintaining his priority of claim in enforcing his judgment. Upon the defendant's afterwards becoming insolvent and a provisional assignee being appointed, it was however discovered that the plaintiff had issued a prior sequestration, which was now sought to be set aside.

Byles, S. L., and Lush showed cause against the rule, which was supported by Sir F Thesiger and J. Addison; Badeley for the bishop.

The Court said, that the rule must be enlarged in order to enable the provisional assignee to bring an action upon the return of nulla bona, to try the question at issue.

Dunn v. Coutts. May 9, 1854.

SETTING ASIDE PROCEEDINGS

FOR IRREGULARITY.LACHES.-HABEAS CORPUS.

Where a lapse of upwards of 12 months had taken place before an application to set aside proceedings for an irregularity: Held, too late, notwithstanding the applicant had been in prison for 10 months under the order of the Insolvent Debtors' Court, and had been refused a habeas corpus to appear in person.

Held, also, that a habeas corpus for a suitor to appear in person to conduct proceedings will only be granted under special circum

stances.

THIS was a motion for a rule nisi on the defendant to set aside the judgment and all subsequent proceedings on the ground of irregularity. It appeared that upon judgment in the action having been given for the defendant, execution was issued for the costs, and the

Herman v. Shelby. May 9, 1854.

COUNTY COURT.- PROHIBITION. -EXECU

TION ISSUED AFTER PROTECTION ORDER.

A plaintiff had obtained judgment in the S. County Court against the defendant, who afterwards took the benefit of the Insolvent Debtors' Act, but the plaintiff notwithstanding issued execution and transferred the same to the D. County Court: A rule was refused for a prohibition against the Judge of the D. County Court against further proceeding in the matter; and held that the proper remedy was by action or application to the S. County Court.

THIS was a motion for a rule nisi for a proCounty Court against further proceeding in hibition against the Judge of the Dartford this plaint. It appeared that the plaintiff had obtained judgment in 1851 in the Southwark County Court against the defendant, who soon from the Insolvent Debtors' Court, but that afterwards obtained a final order for protection the plaintiff had notwithstanding issued execu

tion and transferred the same to the Dartford County Court, under which the sheriff had levied on the defendant's goods.

Duncan in support.

The Court said, that even if the execution were wrongful, a prohibition was not the proper remedy, which must be by action or by an application to the Court from which it had issued. The motion would therefore be refused.

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