Superior Courts: Vice-Chancellor Stuart.

211

66

THIS was an application for liberty to file an affidavit, which was sworn in Scotland before one of the former Masters Extraordinary, but who had described himself as a Commissioner for taking affidavits to be used in the Court of Chancery." The Clerk of Records and Writs refused to receive the affidavit on the ground that the 16 & 17 Vict. c. 78, did not extend to Scotland, and that the description should have been as a Master Extraordinary. Smythe in support; Malins for the other parties.

The Vice-Chancellor, upon the other parties consenting, directed the affidavit to be filed, but without deciding the question.

Smith v. Smith. July 7, 1854.

EXECUTORS.

INDEMNITY

AGAINST BREACHES OF COVENANT BY TESTATOR.

-VARYING DECREE ON PETITION.

Hooper v. Hooper. July 9, 1854.

MARRIED WOMAN. VOLUNTARY SETTLE

MENT.-RENOUNCING.-ELECTION.

Certain leaseholds were assigned by a voluntary settlement by the testator in trust for sale and for payment of the dividends on the proceeds to himself for life, and after his death to the proper hands of the plaintiff for her sole and separate use without power of anticipation. The premises were sold, but the testator received the proceeds, and by his will gave the plaintiff and her husband a life interest only in his estate, with a gift over to his nephew. The plaintiff had endorsed a memorandum on the settlement upon the sale taking place, that she resigned all her interest thereunder, and that it was the desire of all parties it should be treated as a nullity: Held, that the plaintiff could not claim under the settlement, but that even supposing she were so entitled she was put to her election.

It appeared that by a deed of settlement dated in November, 1831, and which was voluntary, the testator assigned certain leaseholds in trust for sale and for payment of the dividends and interest on the proceeds to himself for life, and from and after his decease in trust to pay the income to the proper hands of the plaintiff for her sole and separate use without power of anticipation. The premises were sold in 1840 under an authority from the testator, but he received the proceeds himself, and it appeared that the plaintiff had on the occasion endorsed a memorandum on the deed to the By a decree in an administration suit, the effect that she resigned all her interest thereproceeds of certain leasehold property, of under, and that it was the desire of all parties which the testator was lessee, were directed it should be treated as a nullity. The testator to be divided among the residuary legatees. died in 1843, having by his will given the rents The covenants to keep in repair and to in- and profits of his estate to the plaintiff and her sure were alleged to have been broken: husband for life, with a gift over to his nephew Held, on the petition of the executors, that on their decease. This bill was now filed to they were entitled to have an indemnity, obtain a declaration that the trustee under the and that if the parties differed as to its ex-settlement, who was also the executor of the tent, the case would be adjourned to will, held under the settlement in trust for her. Chambers. Bacon and Steere for the plaintiff; Craig and E. Steere for the defendant.

Baggallay appeared in support of this petition, which was presented by the executors of the testator in this administration suit, in which a decree had been made to distribute among the residuary legatees the proceeds of certain leasehold property, praying to have set apart a portion of such proceeds as an indemnity against the alleged breaches of the nants to keep in repair and to insure.

cove

De Gea for the plaintiffs, contrà, on the ground that the decree could not be varied on petition; Berrey for other parties.

The Vice-Chancellor said, that the executors were entitled to an indemnity, and the case must be adjourned to Chambers in the event of the parties differing as to its extent.

The Vice-Chancellor said, that the settlement was in its form perfectly voluntary, and it was contended the plaintiff had no power to resign her interest thereunder, by reason of the clause against anticipation. She, however, did not anticipate, but evidently renounced her interest in consideration of the benefits to be derived under the will of the testator; and even if she were not bound thereby she was liable to elect. The bill would therefore be dismissed but with

out costs.

Thomas v. Cooper. July 11, 1854.

EQUITABLE DEPOSIT OF DEEDS TO SE-
CURE ADVANCES BY BANK. INTEREST
PAYABLE.

A deposit of deeds was made to the trustees

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Superior Courts: V. C. Stuart.-V. C. Wood.-Court of Exchequer.

of a bank to secure the amount to be found
due by the plaintiff, and also a warrant of
attorney. The plaintiff paid 7001. on the
defendants' having given notice of their in-
tention to proceed to a sale if the balance
due were not paid, and S. paid the re-
mainder, taking an equitable assignment:
Held, that an account must be directed to
ascertain what portion of the securities
were on the land, in order to show to what
part the 2 & 3 Vict. c. 47, applied, so that
no more than 5 per cent. interest could not
be charged.

It appeared that the plaintiff, being indebted to the Chichester branch of the London and Coventry Joint Stock Bank, had deposited with the defendants, the trustees of the bank, the title deeds to certain real estates to secure a sum of 5,500/., with interest at 5 per cent., together with a warrant of attorney, but it was to be as a security for the sum to be found due on a settlement of the banking account. The defendants afterwards gave the plaintiff notice of their intention to proceed to a sale unless the balance due were liquidated, and he accordingly paid 7007., and a Mr. Slade paid the remainder, taking an equitable assignment. This bill was filed, charging that more than 5 per cent. was claimed by the defendants, and that the transaction was void under the 2 & 3 Vict. c. 37, as being secured upon real property.

Craig and Moxon for the plaintiff; Malins and H. Stevens for the defendants.

certain district specified: Held, in a suit for the specific performance of the agree ment, that the terms were not too large, and that the plaintiff was entitled to a decree with costs, the form of bond to be settled at Chambers in case of difference.

THIS was a bill to enforce the specific performance of an agreement entered into by the defendant to give the plaintiff a bond for 2,000l., that he would not at any time after the Michaelmas next ensuing, or at any time dur ing the joint lives of himself and the plaintiff, directly or indirectly, be concerned in any trading establishment within the district comprised between Morwentstow and New Quay, and Launceston and Bodmin, in the county of Cornwall.

James and Karslake for the plaintiff.

Rolt and Giffard for the defendant, cited Horner v. Graves, 7 Bing. 735; 5 M & P, 768.

The Vice-Chancellor said, that the bond was not void by reason of the terms being too large, and the defendant had had besides the opportunity of taking the advice of his solicitor. There must be a specific performance with costs, the form of bond to be settled at Chambers if any difference arose.

Court of Exchequer.

Watson v. Spratley. April 29; May 2;
July 7, 1854.

PAROL CONTRACT FOR SALE OF SHARES
IN MINE ON COST-BOOK PRINCIPLE
STATUTE OF FRAUDS.

Held, that a contract for the sale of shares
in a mine, carried on upon the cost-book
principle, is not a contract for the sale of
an interest in land within the meaning of
the 4th section of the Statute of Frauds,
and is therefore valid, although not reduced
into writing.

THIS was a rule nisi granted on Jan. 13 last

The Vice-Chancellor said, that upon the result of the inquiry before the Master, which had been directed at the hearing as to the character of the mortage security and the dealings and transactions between the parties, the rate of discount charged was more than 5 per cent. It appeared that Mr. Slade had come forward and paid the balance due, in order to prevent the security from being enforced, in pursuance of the notice given by the defendants, and took an equitable assignment. When that balance to set aside the verdict for the plaintiff and was paid it was understood the accounts should be rendered, and although more than 5 per cent. could be charged upon personal security, excess beyond such amount could not be charged if the real estate were resorted to. There must, therefore, be a reference as to the amount of such excess, in order to ascertain which of the securities were within the protection of the Statute.

for a new trial in this action, which was tried before Martin, B., at the sittings in London after Michaelmas Term last. The action was brought to recover for the non-delivery of certain shares in a mine carried on upon the costbook principle, in pursuance of a parol contract.

Cur. ad. vult.

The Court (per Alderson, Platt, and Martin, BB., dissentiente Parke, B.) said, that the question was, whether a contract for the sale of shares in a mine carried on upon the costbook principle was a contract for the sale of an interest in land under the 4th section of the Statute of Frauds, and therefore void for not being in writing. All that passed by the sale was an interest in the profits or results of the speculation, and there was no such interest in the land as to bring the case within the Statute and to avoid the contract. The rule would therefore be discharged.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JULY 22, 1854.

THE REMAINING LAW BILLS BE- introduced for the purpose of enabling the

Lord Chancellor to accelerate the winding up and completion of all the suits and matters in the offices of the remaining Masters, by the appointment of additional them in concluding their labours. temporary clerks and accountants to assist The Bill also proposes an important addition to

the staff of officers of the Court of Chan

It was rumoured that this Bill was in

There are two Bills relating to the Court of Chancery: the first authorising cery in regard to Receivers' accounts. One the Court to assess damages in injunction clerks are to be appointed to take the acor more Clerks of Accounts, and junior cases for breach of contract, or against a counts of receivers, consignees, managers, wrongful act, or for specific performance of &c., with powers like those of the chief an agreement in lieu of sending an issue to clerks to the Judges. These new officers be tried before a jury, or leaving the party are to possess the same qualification as the to prosecute his remedy at Common Law.2 chief clerks, and to be subject to the same This is one step towards an amalgamation of the Jurisdiction of Courts of Law and regulations and restrictions. Equity, affording a complete remedy in tended to effect a very important alteration the first Court, to which the suitor is in the conduct of suits in the Court of entitled to resort. The Common Law Courts have already acquired the power of Chancery, and that the duties of the chief enforcing a discovery of evidence, and in clerks of the Judges would be very materithe Second Common Law Procedure Bill it ally altered by withdrawing from them the is proposed to enable them to issue injunc- and other suits; but it will be observed by investigation of accounts in administration tions. It is but equal justice, therefore, the 12th section of the Bill, at p. 219, post, that Courts of Equity, where a suit pro- that the duties of the Clerks of Accounts perly originates with them, should be en- will not be so extensive as was anticipated. abled to institute inquiries and afford com- An impression, no doubt, prevails, that plete redress. It is of course quite another question, whether there should, or not, be should be remembered that the complicated lawyers are not skilful accountants, but it a "fusion" of the principles of Equity parts of book-keeping, and the supposed and Common Law. At present we are dealing only with the jurisdiction and mode mystery of "double-entry," are rarely apof procedure in the respective Courts. We plicable to accounts in the Court of Chanthink there can be no objection to this

amendment of the Law.

The second Chancery Bill has just been

It is said that the prorogation may take place on the 3rd, but more probably on about the 10th of August.

'See the Bill, p. 198, ante. VOL. XLVIII. No. 1,376

or

cery. The items generally consist of receipts and payments which are to be investigated and proved, and the difficulty consists not so much in the mode of stating the account, as in the evidence to be adduced by which the one party is to be charged with all that he has or might have received, and the other discharged by proof

214

The remaining Law Bills before Parliament.

of payments, and that such payments were debtors, and enforcing payment, under exe properly made. Now, this investigation is cutions in Scotland and Ireland. These and palpably more the business of the lawyer other proposed enactments, and the rules than the accountant, though the habits of and orders for carrying them into practical the latter may enable him more speedily to effect, will go far to complete the efficiency state and sum up the items; but to ascer- of our Superior Courts, and enable them to tain their correctness belongs properly to the regain the just confidence of the public. former. We cannot admit that solicitors Under this department may be menare deficient even in the mechanical part tioned the Bills which have already received of account-keeping. They are generally the Royal Assent for the Registration of well versed in money transactions both for Bills of Sale, in the same manner as Warthemselves and their clients. Every at- rants of Attorneys, Cognovits and Judges' torney of any extent of practice has a mul- Orders, and the Witnesses' Bill, authorising titude of receipts and payments to enter, the parties to an action to compel the at and many of them are professionally con- tendance of Irish and Scotch witnesses, oth cerned for merchants, manufacturers, and In this category may also be classed the traders, and frequently called upon to ex-proposed Summary Execution on disho amine disputed accounts. As a class, therefore, they are fully competent to the ac countant business of the Court of Chancery; and we are glad to find from this Bill that the Lord Chancellor confines the selection of the new officers of accounts to the same class of persons as the Judges and Masters' Chief Clerks, viz.,-Attorneys and Solicitors of 10 years' practice.3

noured Bills of Exchange, which we have frequently brought under the notice of our readers, and regarding which we have treated in a separate article at p. 220, posti

The Bill for removing doubts as to the Acknowledgments of Married Women before Perpetual Commissioners, one of whom is interested in the transaction, or the solicitor in the case, may be expected speedily to To these Equity measures may be added pass both Houses, and set at rest a quesa third, the Court of Chancery Bill for tion which affected a vast multitude of the County Palatine of Lancaster, authorising appeals to the Lords Justices. See the Bill, p. 175, ante, and Objections, p. 228 post.

Next in order may be noticed the Bankrupicy Bill for reducing the expensive establishment of the Courts, and offering some advantages to traders who resort thereto, provided they have assets to the amount of 1507.* This Bill has passed the House of Lords, and we are not aware of any sufficient reason to stop its progress in the lower House.

With regard to the Common Law Bills, it is peculiarly desirable that they should pass in the present Session, whereby many important improvements will be effected in the proceedings preparatory to trial, by the service of process out of the jurisdiction, by the examination of parties, the production of documents, and by the speedy reference of accounts; also at the trial by alterations in the rules of evidence in regard to handwriting, the stamping of deeds, the cross-examination of witnesses, and the adjournment of the trial;-again, in the discovery of the property of judgment

3 The Bill, however, authorises the Masters to call in the aid of accountants to wind up the old suits remaining in their offices,

See p. 195, ante is assitonal squito )

titles.

So also the Bill for the Examination of Witnesses viva voce in the Ecclesiastical Courts, which has passed both Houses.

The amendment of the Law relating to the Personal Estates of Married Women has made such progress that it may be ex pected to arrive at maturity.

The total repeal of the Laws against Usury may also probably be effected in the present Session, although introduced very recently. The House of Lords, however, may possibly pause on a measure which affects the landed interest, but the proposition is supported by the Government,

The Bill for amending the Law of Mortmain has undergone much discussion in the House of Commons. The clauses requiring wills for charitable purposes to be made three months before death, and notice to be given to the Charitable Trust Commissioners within a month after making the will, have been much opposed. We understand that the promoters of the Bill are willing to abandon the requisition of notice, and shorten the term before death from three months to che; but this concession is not deemed sufficient, and the Bill may yet be negatived. It is certainly inexpedi ent to confound superstitious uses with those which are purely charitable, such as schools and hospitals, and to prevent a tes

The remaining Law Bills before Parliament.

Conveyance of Real Property Act Amend- Practices.