Superior Courts: V. C. Kindersley.-V. C. Stuart.-V. C. Wood. pany, no provision had been made for the ་་ T THIS was a petition on behalf of the governors of the above school, part of the land belonging to which had been purchased by a railway company, for payment of the dividends on the purchase-money which had been invested. It appeared that in the orders for the purchase of other lands with part of the money which had been obtained provision had not been made for the payment of the future dividends. Goren and H. R. Young in support; Bovill for the company, contrà, as to costs. The Vice-Chancellor said, that the omission had occurred through the oversight of both parties, and each must therefore bear his own costs of this petition. Where a suit was instituted for an account against a trustee on behalf of the next friend of an infant, and there was no previous application to the trustee: Held, that the trustee was entitled to deduct the amount of his costs out of the balance in his hands before paying it into Court. The bill also asked the appointment of new trustees, held, that the plaintiff was not entitled to costs, as he should have applied under the Trustees' Act, 1850. In this suit by the next friend of an infant, the devisee under a will, against the trustee for an account and for the appointment of new trustees, it appeared that no application for such account had been made before the bill was filed, and the defendant in his answer stated, that he was then and always had been ready to account and to hand over the balance to the guardians. S. Smith for the plaintiff; Glasse and Welford for the defendant. 251 A decree for foreclosure was made on a claim by the first mortgagee against the mortgagor and second mortgagee, and a day was fixed with the consent of all parties: Held, that the second mortgagee could not apply to extend such day, and for a sale under the 15 & 16 Vict. c. 86, s. 48, where the first mortgagee did not consent, and his motion for such purpose was dismissed, with costs. In this foreclosure claim by the first mortgagee against the mortgagor and second mortgagee, the usual foreclosure decree had been made, and a certain day was fixed by the consent of all the parties for payment of the amount due, and in default for a foreclosure. This motion was now made on behalf of the second mortgagee for the extension of the time within which the foreclosure would operate, and for a sale under the direction of the Court in pursuance of the 15 & 16 Vict. c. 86, s. 48. Speed in support; Cairns, for the plaintiff, contrà; Druce for the mortgagor. The Vice-Chancellor said, that as the plaintiff did not consent, the motion must be dismissed, with costs. Vice-Chancellor Wood. Wilde v. Murray. July 6, 1854. SECURITY FOR COSTS.-CROSS-BILL.-MIS DESCRIPTION OF RESIDENCE. A motion was refused, but without costs, for an order on the plaintiff to give security for costs where he had described himself in the bill as of a house which was in the possession of a receiver appointed in a previous suit and let to another person, on the ground that the suit in question was in the nature of a cross-bill. THIS was a motion for an order on the plaintiff to give security for costs, on the ground that he was not residing at the house which he had given as his address in the bill. It appeared that a receiver had been appointed in a former suit against the present plaintiff, and that the house was let to another person. Karslake in support; Greene, contrà, on the ground that the present proceeding was in the The Vice-Chancellor said, that as the trustee should have been applied to before proceed-nature of a cross-bill. ings were instituted, he would be entitled to deduct the amount of his costs out of the balance in his hands, which would have to be paid into Court. No costs would be allowed to the plaintiff, who should have applied by petition under the Trustees Act, 1850, instead of by bill, for the appointment of new trustees.. The Vice-Chancellor said, that it was the settled practice not to require security for costs from the plaintiff in a cross-bill,' but that as he had described himself as of a house which at the time of filing the bill was actually let to another person, the motion would be refused, without costs. 252 Superior Courts: Vice-Chancellor Wood. SIGNEES OF EXECUTOR AND RESIDUARY In an administration claim by an executor Ir appeared, in this administration claim, filed by an executor and a residuary legatee, that upon his becoming insolvent his assignees were made defendants, and the question now arose whether they were entitled to separate costs. for any purpose whatever. The will then proceeded," It was my intention to have left the house, blacksmith's shop, and premises for the purpose of being converted into a school-room, but I find that the law of mortmain prevents me, and that the heir-at-law would take it." He therefore gave the same to N., "in the hope he will convert it into a daily school:" Held, that the bequest was valid, as the school might be established without purchasing land by hiring an existing house for the purpose. THE testator, the Rev. Richard P. Jones, by his will, desired that 3007., which he had lent Southgate for the plaintiff; Daniel and Rou-on debenture to the Bristol and Gloucester and pell for the defendant and co-executor; J. H. Birmingham Railway Company, should be Palmer for the assignees. The Vice-Chancellor said, that the plaintiff and his co-executor must have their costs as between solicitor and client, and the assignees as between party and party, as they were necessarily brought before the Court. In re Deacon's Trust. July 20, 1854. CHARITABLE BEQUEST. MISDESCRIPTION brought into the funds, and that such part of the interest as might be required should be applied to keep his tomb in repair, and that the remainder of the annual interest should be given every year during the month of December in bread or blankets to any 12 of the most deserving agricultural labourers of the parish of Charfield, whom the rector for the time being should appoint. The will then proceeded:-"There are 4,000l. standing in my name in the 3 per cents., 2,000l. of which I bequeath to my wife absolutely, and 2,000/ I leave to pay a master and mistress of a school, which I wish to have established after my death for the children of the Established Church; the interest of this 2,000l. will give 60%. a year, and it is my wish that the principal may not be spent or reduced for any purpose whatever, and I leave the management of the school to THE testator, Charles D. Deacon, by his will be under the superintendence of the rector for gave (inter alia) a legacy to the General the time being, and the rector's churchwarden. Lying-in Hospital for Unmarried Women in It was my intention to have left the house and London." It appeared, on inquiries before the blacksmith's shop, and premises, for the purChief Clerk, that there were two lying-in hos-pose of being converted into a school-room, pitals, viz., in the York Road, Lambeth, and but I find that the law of mortmain prevents Queen Charlotte's Hospital St. Marylebone. The Chief Clerk had certified in favour of the Lambeth institution. A testator gave a legacy to the "General Lying-in Hospital for Unmarried Females in London." It appeared there were two institutions for that purpose in London, but that one had been elsewhere mentioned in the will and provided for: Held, that the other was entitled to the legacy. James, W. Hislop Clarke, and Dickinson for the several parties. The Vice-Chancellor said, that as the Hospital at St. Marylebone was mentioned and provided for elsewhere in the will, the testator must have intended the institution at Lambeth, which was therefore entitled to the legacy. Hill v. Jones. July 22, 1854. CHARITABLE BEQUEST.-STATUTE OF MORT- me, and that the heir-at-law would take it. Under these circumstances, I therefore bequeath the house, blacksmith's shop, and premises occupied by Edward Hathaway to Mr. Joseph Neeld, of Guttleton, who is now patron of the living, in the hope that he will convert it into a daily school." The testator died in October last, having appointed his wife (the defendant) his sole executrix, and the question arose in this suit by the rector of the parish as to the validity of the bequest. G. M. Giffard for the plaintiff; Walford for the defendant. The following cases were cited-Longstaff v. Rennison, 1 Drewry, 28; In re Clancy, 16 Beav. 295; In re Laugham's Will, 1 Eq. Rep. 118; Edwards v. Hall, 1 Eq. Rep. 145. A testator directed a sum lent on railway debenture bonds to be brought into the funds, The Vice-Chancellor said, that a school and part of the interest to be applied in repairing his tomb, and the remainder for might be established without purchasing land, charitable purposes as therein directed. as an existing house might be hired for the He also directed that the income on a sum purpose: Attorney-General v. Williams, 2 Cox, of stock should be applied to pay the master 387,' and that the bequest was therefore valid. and mistress of a school which he wished to have established after his death, and that the principal should not be spent or reduced The Legal Observer, AND SOLICITORS' JOURNAL. SATURDAY, AUGUST 5, 1854. REMUNERATION OF SOLICITORS. first impression, may appear startling and difficult, if not impracticable, to carry into THE tide of public opinion has so effect; but the difficulties are greatly lesstrongly set in against the continuance of sened by examination and reflection; and all proceedings which may be deemed use- looking at the example of Scotland, India, less or unnecessary, that we can scarcely and other parts, we need not despair of expect the alterations will stop at the pre-establishing a similar scale of allowance in sent curtailment of legal proceedings; nor this country, which will not only be adcan we shut our eyes to the fact, that in vantageous to the Profession,-save infinite consequence of the remuneration for pro- trouble in the details of bills of costs,— fessional services being in a great measure afford a just recompense to the solicitor, dependent upon the length of documents, and be generally satisfactory to the public. the pruning knife may be still further employed, with far more disastrous consequences to the practitioner than we have hitherto witnessed. Of course the per centage would vary according to the amount sought to be recovered, and the nature of the duties to be performed; but it can scarcely admit of a In these circumstances, no time should question that a suitor would much more be lost by the Profession in taking into readily submit to the risk of a certain liabitheir serious consideration the best mode of lity of five, ten, or more per cent., than be guarding against the injurious consequences exposed to the possibility of having to pay to which we have alluded. It will not be double the sum sought to be recovered. It sufficient to wait in the hope of stemming is suggested, that were this rule established, the torrent when it comes. All attempts legal proceedings would be increased at that may then be made will be attributed least tenfold, and that had it been in opeto self-interest, and the outcy will be raised ration, the outcry for the larger part of that we are opposed to amendment because our modern Law Reforms could never have it will affect our own interests. The mem-been raised. At all events, the constant bers of the Profession should boldly take apprehension to which the Profession is at the first step, and show to the Public that present subjected from the incessant changes their only desire is to secure a fair remune- which are proposed, would be in a great ration for their services, and enable them to degree removed. maintain their station in society as gentlemen, which by rank and education they are entitled to claim, and in the maintenance of which the Public are as much interested as themselves. Architects and engineers are paid by a per centage on the cost price of the works executed under their plans and superintendence, and no one questions the propriety of the rate at which they are remunerated for We would again, therefore, recommend their skill and labour. For example, if the that it be considered whether some rules Temple Church, or Lincoln's Inn New Hall could not be established for payment of and Library, or the buildings of the Incorprofessional services by a per centage on porated Law Society, cost 30,000l., the the amount claimed or recovered in all suits payment of 5 per cent., or 1,500l., on that and actions in lieu of the present mode of large outlay would not be deemed extravaremuneration. This proposition, on the gant; and yet how much better is an ArchiVOL. XLVIII. No. 1,378. P 254 New Statutes effecting Alterations in the Law.-Abolition of Cinque Ports' Jurisdiction. tect remunerated than a Solicitor who investigates the title to, and prepares a conveyance of large property, or tries an action of great importance? COMMONS INCLOSURE (NO. 2.) 17 & 18 VICT. c. 48. An Act to authorise the Inclosure of certain Lands in pursuance of a Special Report of the Inclosure Commissioners for England and Wales. [24th July, 1854.] Whereas the Inclosure Commissioners for England and Wales have, in pursuance of We are aware, however, that there may be suits or actions, or other professional business, in which the per centage rule cannot apply, because the question to be decided is not a pecuniary one, or only par-"The Acts for the Inclosure, Exchange, and tially so. In such cases there should either be a special agreement, or the remuneration be regulated by the usual scale of a solicitor's charges; and to meet the objection that the client may not be able to ascertain the value of the services to be rendered, or may be unduly influenced by the solicitor, where such agreements are entered into, they may be subjected to the revision of a Taxing Master. Improvement of Land," issued their provi sional orders for and concerning the proposed inclosures mentioned in the Schedule to this Act, and the requisite consents thereto have been given: And whereas the said Commissioners have by a special report certified their opinion that such proposed inclosures would be expedient; but the same cannot be proceeded with without the previous authority of Parliament: Be it enacted— 1. That the said several proposed inclosures mentioned in the Schedule to this Act be proceeded with. With the principal part of these sugges2. In citing this Act in other Acts of Parlia tions, we have been favoured by a solicitorment, and in legal instruments, it shall be suf of much experience, and we trust they will be followed by other communications. NEW STATUTES EFFECTING ALTE- 17TH VICTORIA, 1854. THE Acts of the present Session printed in the present Volume, with an Analysis to each, will be found at the following pages :— Income Tax, cc. 17, 24, pp. 46, 134, ante. EVIDENCE IN ECCLESIASTICAL COURTS. 17 & 18 VICT. c. 47. An Act to alter and improve the Mode of taking Evidence in the Ecclesiastical Courts of England and Wales. [24th July, 1854.] Be it enacted, That in any suit or proceeding depending in any Ecclesiastical Court in England or Wales, the Court (if it shall think fit) may summon before it and examine or cause to be examined witnesses by word of mouth, and either before or after examination by deposition or affidavit; and notes of such evidence shall be taken down in writing by the Judge or registrar, or by such other person or persons, and in such manner, as the Judge of ke Court shall direct. Annual Inclosure Act, 1854," or "The Acts ficient to use either the expression "The Second for the Inclosure, Exchange, and Improvement Abolition of the Cinque Ports' Jurisdiction.-Chancery Amendment Bill.-Review. that after the 30th September next, all process and judgments shall be executed as in other parts of the respective counties of such Cinque Ports. The parishes of Margate and other places, hitherto in the liberties of Dover, are to be severed therefrom, and form part of the county of Kent; and the towns of Winchelsea and Rye, are to form parts of their several counties. The prisoners in the gaol of Dover Castle are to be removed to the county gaol on the 30th September, without writ of habeas corpus. 255 It is also proposed that the powers given by the 15 & 16 Vict. c. 86, s. 63, of making general rules and orders shall extend to and include the summoning of jurors and witnesses, and the trial of issues of fact. The commencement of the Act will be from and after the 1st day of November next. NOTICES OF NEW BOOKS. The Charitable Trusts' Act, 1853. The Orders, Regulations, and Instructions issued pursuant thereto; and a Selection of Schemes, with Notes, preceded by a Summary of the Law of Charities. By OWEN DAVIES TUDOR, Esq., of the Middle Temple, Barrister-at-Law. London William Henry Bond; Wildy & Sons; and William Amer. 1854. Pp. 302. Thus, it appears, that the Government intend to put an end to the anomalous and peculiar jurisdiction of these old local Courts, which are obviously inconvenient in the general administration of justice, and to transfer the business to the ordinary Courts of the country. In like manner the Borough Court at Birmingham was lately abolished. In this work Mr. Tudor has arranged These measures clearly indicate the general the subjects treated of in the following design of simplifying and rendering our order :-1st. What constitutes a charitable system of judicature uniform. trust, and what under the 43 Eliz. c. 4, or Whether the County Palatine of Lan- otherwise, may be its objects. 2nd. What caster will form a permanent exception to constitute superstitious as contra-distinthe general rule, we know not. The Stan-guished from charitable uses. 3rd. What nary Court of Cornwall may also, perhaps, regulations the policy of the law prescribes be intended as another exception. These for the validity of gifts to charitable uses by peculiar tribunals having distinct Judges the 9 Geo. 2, c. 36. 4th. The jurisdiction and officers, and rules of practice, of course occasion additional expense, as well as interfere with the equal and uniform administration of the law. CHANCERY AMENDMENT BILL. ASSESSMENT OF DAMAGES. SINCE we laid before our readers the first edition of this Bill (see ante, p. 198), by which it is proposed to empower the Court of Chancery to award damages in cases of breaches of covenant, &c., the following important provision has been added -enabling the Court to empannel juries and to compel the attendance of witnesses : "For the better assessing such damages, and for determining any question of fact that may arise in any cause or matter, it shall be lawful for the said Court (if it shall so think fit) to empannel juries and compel the attendance of witnesses, and for such purposes to exercise all the powers for compelling the attendance of jurors and witnesses which are now vested in any of her Majesty's Courts of Record at Westminster." over charitable trusts. 5th. The mode of procedure in cases of charitable trusts, both according to the old practice and under the Charitable Trusts' Act, 1853. 6th. The construction of gifts to charities, and the administration of their funds. 7th. The powers and duties of trustees of charities, and the extent of remedies in cases of breach of trust. 8th. The appointment and removal of trustees, schoolmasters, and others connected with charities. 9th. Fiscal regulations as to property given to charities. In the Introduction to the Volume, Mr. Tudor remarks that charitable trusts present many anomalies when compared with other trusts :— "None at first are more striking than the peculiar favour shown by the Court of Chancery in holding gifts to charitable purposes to be good, which had they been given upon ordinary trusts would have been void, either on account of the uncertainty or failure of the perAgain, on the other hand, the mode in which sons or objects for whom they were destined. the Legislature has interfered by 9 Geo. 2, c. 36 (commonly called the Statute of Mortmain), to prevent gifts to charities of anything savouring of realty except in the manner there pre scribed; and the strict construction that Act |