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FRAUDU

SET ASIDE SALE AS

LENT.-LACHES.

VENDOR AND PURCHASER. DEDUCTION OF

INCOME TAX ON PAYMENT OF PURCHASE-
MONEY INTO COURT WITH COSTS.

Superior Courts : Lords Justices.-Rolls.-V. C. Kindersley.-V. C. Stuart. 35 The Lords Justices said, that the appeal must Baily and Grenside for the wife; G. Lake be dismissed, but without costs.

Russell for the husband; Fleming for the

trustees. Master of the Rolls.

The Vice-Chancellor said, the intention of Baker v. Read. April 28, 29, 1854.

the covenant was that property over which the BILL TO

husband had any power should be settled on

the trusts of the settlement, and that in respect A bill filed in 1850 was dismissed without queathed to her separate use, he had no power,

of the property in question, which was becosts, to set aside the purchase in 1833 of, and it must be transferred to such parties as certain property by the defendant, and she might direct for her exclusive use. which he held as executor under a will in trust for sale--where there was no excuse Flight v. Camac. May 9, 1854.

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.

The deduction by a purchaser of income tax The Master of the Rolls said, that the trans- on the interest payable, was disallowed on action took place in 1833, and the bill was not payment of the purchase-money into Court, filed till 1850. There was no evidence to show

under the 16 . 17 Vict. c. 34. 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 pro- It appeared that the practice had been under tect them, and, although, if the application had the 5 & 6 Vict. c. 35, to disallow the deduction, been sooner, they could have obtained a decree but as the 16 & 17 Vict. c. 34, s. 40, entitled to set it aside, upon the evidence, that the pro- and authorised the purchaser to make the deperty might have fetched a higher price, yet as duction, while in the former Act (s. 102) he was no excuse was shown for the delay in coming only authorised to deduct income tax, the questo the Court, no relief could now be given : tion was now raised. Champion v. Rigby, 1 Russ. & M. 539; Lord Jones Bateman for the vendors. Selsey v. Rhoades, i Bli. N. S. 1; 2 Sim. & The Vice-Chancellor said, that although it Stu. 41; Gregory v. Gregory, Coop. Chan. Cas. might be just a purchaser should be entitled to 201; Jacob. 631. The bill would therefore be deduct income tax, yet as the opposite practice dismissed, but without costs.

had prevailed and there was nothing in the new

Act to alter it, it must be adhered to, and if an Sice-Chancellor Kindersley. alteration were desired an application must be Ramsden v. Smith. May 8, 1854.

made to the Lord Chancellor. HUSBAND AND WIFE.-COVENANT BY HUS

Vice-Chancellor Stuart.
BAND TO SETTLE WIFE'S FUTURE PRO-
PERTY.-CONSTRUCTION.

Brook v. Biddall. May 3, 1854.
In a marriage settlement the husband cove-| ATTENDANCE OF WITNESSES BEFORE MAS-

ranted that he would do all acts necessary for settling to the same uses as those mentioned in the settlement all property which An order was made, with costs, on motion exmight be given or bequeathed to his wife: parte for the attendance on the Master Held, that property bequeathed to her se- within four days to give evidence, of two parate use was not subject to the settlement, clerks of a solicitor, or on default for their which only affected such property over committal to the Queen's Prison, where which the husband had power, and that they had omitted to attend in pursuance of therefore the wife was entitled to have the a subpæna ad test, in consequence of their same transferred to such parties as she employer refusing to allow them to attend might direct for her exclusive use.

unless on payment of the usual fees. By the marriage settlement of Mr. and Mrs. This was an exparte motion for an order on Ramsden, the former covenanted that he would the two clerks of a solicitor to attend the do all acts necessary for settling to the same Master within four days to give evidence, o uses as those mentioned in the settlement all on default for their committal to the Queer. property which might be given or bequeathed Prison. It appeared that they had been served to his wife. The trusts of the settlement were with a subpoena ad test., but had made default for the husband for life, with remainder to the in consequence of their employer refusing to wife for life, with remainder to the issue of the allow them to attend unless on payment of the marriage. It appeared that certain property usual fees. had been afterwards bequeathed to her separate use, and the question was, whether ere should See Humble v. Humble, 12 Beav. 43; Hole be a settlement of the same.

royd v. Wyatt, 1 De G. & S. 125.

TER. ORDER FOR A COMMITMENT ON
DEFAULT COSTS.

CONSTRUCTION. - WHAT PASSES UNDER WORDS

36

Superior Courts : V. C. Stuart.-V. C. Wood.--Queen's Bench. J. H. Palmer, in support, cited Hennegal v. until some other person became the proDoance, 12 Ves. 201.

prietor. The Vice-Chancellor granted the application, THE testator, by his will, dated in June, with costs.

1852, after directing the payment of his debts

and funeral and testamentary expenses, gave Cooke v. Wagster. May 3, 1854. all his freehold and leasehold property, and his

trades, ready money, mortgages, shares in WILL

public companies, and all other his estate and READY MONEY.'

effects, in trust to permit his wife to have the A testator gave to his widow all his ready use and enjoyment of his house, garden, and

money and securities for money, money in premises situate at Handsworth, free of ground the funds, and money in the bank, if any, rent, and also the use and enjoyment of all his which might be due and owing to him at household furniture, &c., then in and about his death : Held, that a'sum in the hands the said house, for the term of her natural life of a person for investment, and for which durante viduitate, and also by codicils the inthe testator's personal representative had terest and annual income arising from certain proved in an administration suit of such shares in the Peninsular and Oriental Steam person's estate, passed to the widow, where Narigation Company. The testator died in

there would otherwise be an intestacy. November, 1852, and a call was afterwards The testator, by his will, dated in April, made on some of the shares, and in the follow1848, gave to his widow all his ready money ing December a dividend was declared in and securities for money, money in the funds, respect of the earnings up to the preceding and money in the bank, if any, which might be Michaelmas. It appeared that by the comdue and owing to him at the time of his death. pany's deed of settlement the net profits were It appeared that the testator had directed his divisible rateably among the proprietors to such solicitor to pay a portion of the proceeds of sale an amount as the directors should decide on and of a real estate to a Mr. Chambers, a surveyor, declare at the annual or half-yearly general for investment; and that at the time of Mr. meeting, and no holders of shares were entitled Chambers' death the same remained in his to any dividend thereon declared after they hands. The testator's personal representative should have ceased to be proprietors thereof. had obtained the allowance in an administra- This special case was now stated for the tion suit of a claim for such amount after de opinion of the Court, on the questions whether ducting a sum due from the testator, and the the widow was restricted to the personal use question now arose, whether such amount and occupation of the house and furniture, or passed to the widow under the will.

whether she might let it; whether the calls on Prior and Eddis for the plaintiff; C. Hall the above shares were payabble out of the refor the personal representative.

siduary estate or by the widow; and whether The Vice-Chancellor said, that, having re- the dividend declared in December formed gard to the circumstance that there would be part of the residuary estate or belonged to the an intestacy as to the amount in question if it widow. did not pass under the gift, and the testator's

Rolt and Karslake for the executors; James intention would not be accomplished by its ex. and Morris for the widow; Bovill and T. H. clusion, it must be held to pass under the Terrell for other parties. words “ready money” to the widow.

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 Vice-Chancellor UWood.

furniture during her widowhood, and that in Clide. May 4, 1854.

accordance with Jacques v. Chambers, 4 Rail. WILL.-CONSTRUCTION.- PERSONAL OCCU

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 A testator gave all his freehold and leasehold would, under it, be held in suspense until some

property, &c., in trust to permit his wife other person became the proprietor, and the
pendente viduitate to have the use and en- case amounted to a specific derise, the widow
joyment of his house, &c., and of all his was entitled to the dividend, and there would
kousehold furniture, &-c., for her natural be a declaration accordingly.
life, and also the interest and annual income
arising from shares in a navigation com-

Court of Queens Bench.
vany : Held, on special case, that she was
not restricted to the personal use and occu-

Exparte Bailey and another. May 1, 1854. pation of the house and furniture, that calls CONVICTION OF COLLIERS FOR ABSENTING on the shares made soon after the testator's

THEMSELVES FROM MASTERS' SERVICE, death were payable out of the residuary

ORDER OF COMMITMENT. cstate, and that she was entitled to the di- Held, that the order of commitment by a vidends thereon, upon the construction of justice under the 4 Geo. 4, c. 34, of colliers the company's deed of settlement under for absenting themselves from their masters' which the dividend was held in suspense service without their consent and without

Clive v.

PATION OF HOUSE. CALLS ON SHARES
PAYABLE OUT OF RESIDUE.-DIVIDENDS.

LIGHTING AND WATCHING ACT.-ADOPTION

OF. MEETING OF RATEPAYERS.

Superior Courts : Queen's Bench.

37 any lawful excuse, need not set out that the trial before Lord Campbell, C. J., at the sittings witnesses were examined in their presence, after Michaelmas Termn last, the defendant had provided it shous a contract to serve within failed in establishing his plea of fraud in the the Act.

representation of the amount of the business It appeared that two colliers had been con- which afterwards only turned out to be about victed, on the complaint of the agent of Messrs. 121. a week, but it had been since discovered Marshall, for absenting themselves from their that the plaintiff had employed persons to purservice without their consent and without any chase articles at the shop, and it was sought to lawful excuse, and an order for their commit- have their evidence on the new trial. ment to prison for two calendar months, with E. James and Dowdeswell showed cause kard labour, was thereupon made by one of against the rule, which was supported by Chamthe jastices for the county of Monmouth. The bers and Needham. commitment set out that the defendants had The Court said, that the rule would be ab. contracted with Messrs. Marshall in the ca- solute on payment of costs and the payment of paeity of colliers for the term of one month, the 2001. into Court. and so on from month to month, determinable upon either party giving one month's notice, Regina v. Justices of Staffordshire. May 8, for the wages of 18. 10d. per ton for cutting

1854. coal. A habeas corpus had been granted, and the prisoners were discharged on recognizances, and this motion was now made to discharge such recognizances.

Held, that the meeting under the 3 8.4 Wm. Smythies in support, on the ground that the 4, c. 90, of ratepayers of a district in order warrant was bad for not setting out that the

to adopt the provisions of the Act, must be witnesses were examined in the prisoner's

called by the churchwardens of the parish presence, that they had not entered into any

in which the district is situate, and not by contract of service, nor were guilty of any

the chapelwardens of such district. breach of contract.

The objection of the meeting being properly Huddleston, contrà.

convened may be taken on an application on The Court said, the warrant appeared to

justices to issue a distress warrant for have been made in execution of a preceding

rates, and is not affected by s. 66. conviction, and did not therefore require the This was a rule nisi obtained on January 24 strictness contended for. It showed there was last, to issue a distress warrant for rates under a contract to serve within the 4 Geo. 4, c. 34, the 3 & 4 Wm. 4, c. 90 (the Lighting and and it was for the justice to determine whether Watching Act). there had been any breach. The motion would It appeared that at a meeting, in the year accordingly be refused.

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 Coke v. Bishop. May 1, 1854.

under the provisions of the 3 & 4 Wm. 4, c. NEW TRIAL ON DISCOVERY OF FRESH EVI- 90, and that inspectors had been accordingly DENCE.-PAYMENT INTO COURT.-Costs. 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

1501. 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 plaintif ob- the arrears as well as of a new rate then made, tained a verdict. Fresh evidence was afterwards discovered, held, that a new the same, they were summoned before the de

and on the new overseers refusing to collect trial could only be granted on payment of fendants, who however refused to issue their the sum into Court as well as of the costs.

warrant an objection having been taken that This was a rule nisi obtained by M. Cham- the notice convening the original meeting of bers, Q. C., on April 19 last, to set aside the ratepayers was bad, and that the churchverdict for the plaintiff and for a new trial of wardens of the parish, and not of the district, this action, which was brought to recover the were the proper parties to convene the meeting, sum of 2001., the balance due under an agree- H. Hill and Cowling showed cause against ment entered into by the defendant to purchase the rule, which was supported by Keating and a business carried on by the plaintiff's wife in Bros. 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 30l. a week, where be discharged, but without costs. upon the agreement had been signed. On the

QUO

WARRANTO.

WHEN

IMPROPERLY

38

Superior Courts : Queen's Benck. Regina v. Brydges and others. May 8, 1854. was received by the post in the appellant

parish on a Sunday morning : Held, that MOVED.-COSTS.-ATTORNEY,

the service was good, and was as of MonA rule was discharged, with costs to be paid

day morning. by the attorney, for a quo warranto on a

This was a motion for a rule on the defenddistrict burial board, on the affidavit of the ants to show cause why they refused to hear relator that he had signed the affidavit on an appeal against an order for the removal of which the rule was obiained without having a pauper lunatic from Greenwich to Kimbolton. read it, and that he objected to be a party It appeared that the order was received in to the proceedings, and was a pauper, and Kimbolton by post on a Sunday morning, and the Court refused to allow another relator the question was, whether the service was to be substituted.

good. By the 29 Chas. 2, c. 7, E. 6, it is A RULE nisi for a quo warranto had been Lord's Day shall serve or execute, or cause to

enacted, that no person or persons upon the granted in this case on the defendants, who

be served or executed, any writ, process, warwere the members of a burial board at Mel. combe Regis.

rant, order, judgment, or decree (except in Sir F. Thesiger showed cause on an affidavit cases of treason, felony, or breach of the of the relator that he had signed the affidavit peace); but that the service of every such on which the rule had been granted without decree shall be void , to all intents and pur

writ, process, warrant, order, judgment, or knowing its contents, and that he did not wish

whatsoever."

poses to be a party to the proceedings, and was a

(See Colvill, app., Y. pauper.

Lewis, resp., 2 Com. B. 60).

Deedes in support: Pashley submitted that a new relator should be substituted.

The Court said, that the service was good The Court, however, refused to permit such

as of the Monday morning. substitution, and discharged the rule with costs to be paid by the attorney who prepared Exparte Ainger. May 8, 1854. the affidavit.

DISCHARGE OF AR

ARTICLED CLERK

TICLES ON ATTORNEY ABSCONDING.

AS

COMPLI

CATED

Herring v. Tomlin. May 8, 1854.

An application was granted to discharge an ACTION FOR BREACH OF CONTRACT.

articled clerk from his articles, where the SESSMENT OF DAMAGES-EVIDENCE OF

attorney had absconded and gone to WITHDRAWAL OF PLEA OF FRAUD.

America. On the assessment of damages before the Se- This was an application to discharge an ar

condary, in an action for damages for ticled clerk from the articles he had entered
breach of an agreement by the defendant, to into with an attorney, who had since abscond-
take the plaintiff into partnership, evidence ed and gone to America.
was adduced of the withdrawal by consent,

Keane in support.
of a plea of fraud : Held, that it was inad- The Court granted the application.'

missible, and a new trial was ordered. It appeared in this action to recover damages Regina v. Registrar of the Pharmaceutical for the breach of an agreement whereby the

Society. May 9, 1854. defendant had agreed to take the plaintiff in RETURN TO MANDAMUS. — TRIAL BY COMpartnership, as a ship and insurance broker, MON JURY, WHERE QUESTION that on the assessment of damages before the Secondary evidence had been admitted of the

A motion was refused for a rule nisi to try withdrawal by consent of a plea of fraud. A rule nisi had therefore been obtained for a new

by a common jury the return to a writ of

mandamus on the registrar of the Pharmatrial, on the ground of the improper admission ceutical Society to make out a register of of this evidence, whereby the amount of da

the members of the society under the 15 & mages given was greater. Wordsworth showed cause; H. S. Giffard

16 Vict. c. 56, where the question at issue

was a complicated one. The Court said, the question was what loss

This was a motion for a rule nisi to try by the plaintiff had sustained by the breach of a common jury the return to this writ of man. contract, and these could not

be affected by the damus on the defendant to make out a register plea of fraud, and the admission of the evidence of the members of the society under the 15 & of its having been pleaded would tend to in- 16 Vict. c. 56 (reported ante, vol. 47, p. 284). flame the damages. The rule would therefore

H. Lloyd in support, on the ground that the be made absolute.

question at issue was merely whether certain Regina v. Justices of Kent. May 8, 1854.

See Exparte Wilkinson, 9 Dowl. P. C.

in support.

320; Exparte Carnley, 2 Dowl. NS 945; SERVICE BY POST. 12 Law J., N. S, Q. B. 98 ; Exparte Hawke,

45 Leg. Obs. 283; Anon. 2 Chit. 62; Chit. The order for the removal of a pauper lunatic | 558, n.

ORDER OF REMOVAL.

-WHEN ARRIVING ON SUNDAY.

AS IMPROPERLY ISSUED.

PROHIBITION, EXECU

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

39 parties were entitled to be on the register with- plaintiff was arrested on the allocatur which out having undergone an examination. was afterwards given. An application for a

The Court said, that the question was a com- habeas corpus in order that he might move in plicated one, and the rule was accordingly re- person to be discharged had been refused, and fused.

on his taking the benefit of the Insolvent

Debtors' Act, an order was made for his disDawson v. Williams, clerk. May 9, 1854. charge at the end of 10 calendar months.

The plaintiff in person in support. APPLICATION TO SET ASIDE WRIT OP SE

The Court said, that even if the proceedings QUESTRATION -RULE ENLARGED.

were irregular, the application being after the A plaintiff who had recovered judgment tice of parties suing in person applying for

lapse of 12 months, was too late. The pracagainst 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 plaintif'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 plaintif. A rule to set it aside was enlarged in order that the assignee might, on the

Herman v. Shelby. May 9, 1854. return thereto of nulla bona, try the COUNTY COURT. question.

TION ISSUED AFTER PROTECTION ORDER. This was an application to set aside a se

A plaintiff had obtained judgment in the S. questratien issued by the plaintiff on the de- County Court against the defendant, who fendant's benefice. It appeared that he had

afterwards took the benefit of the Insolvent issued a levari facias, and that the writ of se- Debtors' Act, but the plaintif notwithquestration which issued thereon had been di

standing issued execution and transferred rected not to be executed, except it should be

the same to the D. County Court : A rule necessary for the purpose of maintaining his

was refused for a prohibition against the priority of claim in enforcing his judgment.

Judge of the D. County Court against Upon the defendant's afterwards becoming in

further proceeding in the matter; and held solvent and a provisional assignee being ap

that the proper remedy was by action or pointed, it was however discovered that the

application to the S. County Court. plaintiff had issued a prior sequestration, which

This was a motion for a rule nisi for a prowas now sought to be set aside. Byles, S. L., and Lush showed cause against County Court against further proceeding in

hibition against the Judge of the Dartford the rule, which was supported by Sir F. Thesiger and J. Addison : Badeley for the this plaint. It appeared that the plaintiff had bishop.

obtained judgment in 1851 in the Southwark The Court said, that the rule must be en

County Court against the defendant, who soon

afterwards obtained a final order for protection larged in order to enable the provisional assignee to bring an action upon the return of from the Insolvent Debtors' Court, but that nulla bona, to try the question at issue.

the plaintiff had notwithstanding issued execution and transferred the same to the Dartford

County Court, under which the sheriff had Dunn v. Coutts. May 9, 1854. levied on the defendant's goods. SETTING ASIDE

Duncan in support. GULARITY.-LACHES.--HABEAS CORPUS. The Court said, that even if the execution Where a lapse of upwards of 12 months had were wrongful, a prohibition was not the

taken place before an application to set proper remedy, which must be by action or by aside proceedings for an irregularity: Held, an application to the Court from which it had too late, notwithstanding the applicant had issued. The motion would therefore be re

fused. been in prison for 10 months under the order of the Insolvent Debtors' Court, and had been refused a habeas corpus to appear

Queen's Bench Practice Court.

(Coram Coleridge, J.) Held, also, that a habeas corpus for a suitor

Regina v. Robinson. May 8, 1854. to appear in person to conduct proceedings will only be granted under special circum- RULE TO ADMIT TO BAIL BANKRUPT COM

stances. This was a motion for a rule nisi on the

The Court refused a rule to admit a defenddefendant to set aside the judgment and all

ant to bail who was a bankrupt, and had subsequent proceedings on the ground of irre

been committed under the 12 8:13 Vict. c. gularity. It appeared that upon judgment in

106. s. 251, for trial for embezzlement, with the action having been given for the defendant,

intent to defraud his creditors. execution was issued for the costs, and the This was a rule nisi to admit the defendant

PROCEEDINGS

FOR IRRE

in person.

MITTED FOR EMBEZZLEMENT.

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