Common Law Practice.-Applications for admission and Renewal of Certificates. POINTS IN COMMON LAW MOTION TO SET ASIDE NONSUIT. 223 the bill would be taxed, and the petition for that purpose was presented in the course of a few weeks after the transaction occurred. If the Court were to refuse taxation in such a case as the present, it appears to me that it would put a mortgagor entirely at the mercy of the solicitor of his mortgagee. In this case, for instance, what course could the mortgagor have adopted? If he had adopted the offer of Mr. Barrow and paid the principal and interest without getting the title-deeds, he might have been put to expensive proceedings before they could have been recovered. If he had adopted the course he took in October, 1852, and applied for an order to tax Mr. Barrow's bill, the same course might have been repeated, and a fresh bill of costs brought in again at the end of six further months, together with the un- has no right to nonsuit the plaintiff, where avoidable imputation, that, in truth, his money there are several issues. was not ready, and that he was adopting these steps for the purpose of delay. PER Cresswell, J. :-" If the Judge tells the plaintiff's counsel that he will nonsuit him on a point of law, the latter does not by mere acquiescence lose his right to move; but if the Judge says he will nonsuit the plaintiff because there is no evidence to leave to the jury, that is a very different case; counsel, if they mean to object, should insist upon going to the jury, or they cannot afterwards complain. In strictness, no doubt, the Judge over I certainly have shown no disposition to open a settled account, or to refer to taxation the bill of a solicitor once paid. I have thought that the doctrine of pressure ought not to be extended, and that, without it, mere charges, even though gross, which the client might have detected before payment, should not induce the Court to take this course, and, above all, I have considered, that it is incumbent on the petitioner to come speedily; but when I find a bill containing a series of items which, in my opinion, are not mere overcharges, but charges for a whole class of business which ought never to have been done at all, the case appears to me to fall within the principle laid down by Lord Langdale, when he said, that the nature of the items might be such as to require this Court to direct the tax ation of the bill. "I shall, therefore, in this case, make the usual order for taxation." In re Barrow, 17 Beav. 547. * 糖 But, unless the counsel insist on the issues going to the jury, if the circumstances are such that the Judge ought, as matter of law, to have directed a verdict for the defendant, the nonsuit, though in invitum, ought to stand." Hughes v. Great Western Railway Company, 14 Com. B. 637. ADDITIONAL AFFIDAVITS ON APPEAL FROM A summons was taken out before Alderson, B., at Chambers, for an order allowing the plaintiff his costs, on the ground that it was a case in which the Superior Court had concurrent jurisdiction-as the plaintiff and the defendant dwelt more than 20 miles apart, but the Judge, on the facts, refused to make the order. Upon a like application to the Court, held that affidavits in addition to those read at Chambers may be used. Sanderson v. Proctor, 10 Exch. R. 189. 224 Admission and Renewal of Certificates.-Superior Courts: Lord Chancellor. Courtenay, Richard, Lewisham Crockett, Richard Singleton, Brighton; and Dawson, John Huntingdon, 2, Spring Ter., Wandsworth Road Drake, John, Launceston Moore, H., Shelsley Beauchamp; Plymouth; Guernsey; Cherbourg; and Boulogne Olive, Joseph, Twyford Buildings, Lincoln's Inn Fields Phelps, Isaac, South Brent Powell, Frederick, Knaresborough Roberts, Richard, of Langefni, Anglesea; Durant, Benjamin Chandler, 14, Belgrave and Cape Town, Cape of Good Hope. Street; Poole Gooday, John Francis, Sudbury Griffith, Thos. Aubrie, 15, Philpot Lane, City Harding, James Nott, Amwell Street, Pentonville; and Exeter Ionn, William, 44, Upper Winchester Street, Islington. Julius, Herbert A. H., Paul's Road, Camden Town; Warwick Court Kingdon, Joseph Francis, Barnstaple Lee, Edw. Alphonso, Kingston-upon-Hull Sanderson, William Barker, Leeds Vyner, Charles James, Nantwich Walker, George H., Newbold Grange, Rugby; Bombay; and the High Seas Williams, Thomas Caredig, 47, Queen's Rd., Notting Hill Whytehead, John, Kirby Moorside Windsor, O. Richard, 25, Baker Street, Lloyd Square Wright, Egerton Leigh, Wigan. RECENT DECISIONS IN THE SUPERIOR COURTS. Lord Chancellor. Thornhill v. Thornhill. Jan. 11, 1855. COSTS ON CONTEMPT BY INDUCING MARRIAGE OF WARD OF COURT. INJUNCTION. The guardians of a ward of Court had obtained an injunction to restrain C. from inducing her to contract a marriage with him, and afterwards he was committed for the contempt. Upon his release on an undertaking to pay the costs occasioned by his contempt, held that the costs of the motion for an injunction were included in such costs. contempt. It was a fallacy to treat the motion for an injunction as a separate proceeding, as it was only a step in the relief sought from the Court. The costs of the affidavits on the motion for an injunction come therefore within the scope of the order for payment of the costs of the contempt, and the report of the Master in that respect must be reviewed. As to the other items disallowed, the Master was right. In re Hodges. Jan. 12, 13, 1855. INFANT OUT OF FUND MAINTENANCE OF PAID IN UNDER TRUSTEES' RELIEF ACT. Held, that a Judge at Chambers has not ju risdiction under the 15 & 16 Vict. c. 80, s. 26, to make orders as to the maintenance of an infant out of a fund which has been paid into Court, under the 10 & 11 Vict. c. 96, without a petition being presented. THIS was an application, by direction of Vice-Chancellor Wood, on the question whether an allowance for the maintenance of an infant, out of a fund which had been paid into Court under the Trustees' Relief Act, 10 & 11 Vict. c. 96, could be continued without a petition being presented. THIS was an application for a direction to the Taxing Master. It appeared that an injunction had been obtained to restrain Mr. Chichester from inducing a ward of Court to contract a marriage with him, and that afterwards he had been committed for contempt, but was subsequently released on expressing his contrition and on an undertaking to pay the taxed costs occasioned by his contempt forthwith. The Master, upon the taxation, had disallowed the costs of the affidavits on which the injunction was obtained as not falling within the costs of the contempt, and also the costs of serving Lady Ferrers, and of Miss Thorn- By the 15 & 16 Vict. c. 80, s. 26, it is enhill's journey to London to see the Lord Chan-acted, that "the business to be disposed of by cellor. the Master of the Rolls and Vice-Chancellors respectively, while sitting at Chambers, shall consist of such of the following matters as the Judge shall from time to time think may be more conveniently disposed of in Chambers than in open Court, viz.," "applications as to the guardianship and maintenance of infants.” Turner and Roupell, jun., for the several parties. Cur, ad. vult. Baily and Renshaw for the guardians; Cairns and Rowcliffe for Mr. Chichester. The Lord Chancellor said, the charge against Mr. Chichester was, of having endeavoured clandestinely to remove Miss Thonrhill from the custody of her guardians with the view to a private marriage, and motions had been made to restrain such removal, and to commit for Superior Courts: Lords Justices.-V. C. Kindersley.-V. C. Stuart.-V. C. Wood. The Lord Chancellor said, that the jurisdic tion in such cases arose under the Trustees' Relief Act, which expressly provided that the proceedings should be by petition. The Masters in Chancery Abolition Act only gave jurisdiction to do at Chambers that which had been formerly done by the Court, but there must be the same foundation for such orders at Chambers as in Court, and that in cases like the present was by petition. 225 THIS petition was presented for the payment to the perpetual curate of Bruton, of the dividends on 1547., the purchase-money of certain glebe lands taken by the Great Western Railway Company. Messiter in support. Osborne for the company, contrà, as to costs, referring to the 8 & 9 Vict. c. 18, s. 71, which enacts, that "if such purchase-money or compensation shall not amount to the sum of 2007., and shall exceed the sum of 201., the same shall either be paid into the bank, and applied in manner hereinbefore-directed, with respect to sums amounting to or exceeding 2004., or Swansea and Loughor Railway Campany, ex- the same may lawfully be paid to two trustees, parte Green. Jan. 13, 1855. Lords Justices. In re Cameron's Coalbrook Steam Coal and APPEAL UNDER WINDING-UP ACT AFTER An application was dismissed, with costs, for THIS was an application for leave to appeal from the decision of the Master of the Rolls in this case, notwithstanding the expiration of more than three weeks, limited by the 12 & 13 Vict. c. 108, s. 33.' Prendergast in support, on the ground that the decision on which the Master of the Rolls had proceeded had been questioned in a recent case by the Lords Justices. Roxburgh contrà. The Lords Justices said, that the words of the Statute were positive, and the application must be dismissed, with costs. Vice-Chancellor Kindersley. Exparte Perpetual Curate of Bruton. Jan. 12, 1855. RAILWAY COMPANY. PURCHASE-MONEY Certain glebe lands were taken by a rail- Which enacts, that "no notice of motion for a rehearing before the Lord Chancellor of Great Britain or Ireland respectively of any order of the Master of the Rolls in England or Ireland, or of any of the Vice-Chancellors in England, under the said Act or this Act, shall be given after the expiration of three weeks after the order complained of shall have been made." to be nominated by the parties entitled to the rents or profits of the lands, in respect whereof the same shall be payable, such nominations to be signified by writing, under the hand of the party so entitled." The Vice-Chancellor said, that in the absence of all evidence of refusal by the petitioner to comply with the requirements of the section, the company must pay the costs as asked. Vice-Chancellor Stuart. Beavan v. Earl of Oxford. Jan. 15, 1855. VICT. C. 110.-SUFFICIENCY AS AGAINST In a writ of summons the defendant's name A WRIT of summons was issued in November, 1839, against Lord Edward Harley and was duly served. The appearance was entered as Lord Alfred Harley, and a Judge's order to enter up judgment was afterwards given, under which it was entered up as against Lord Edward Harley, and was registered in that name in Fe bruary, 1840. It was, however, afterwards re gistered as against Lord Alfred Harley, sued as Edward Lord Harley. A question now arose, whether the judgment was valid as. against subsequent incumbrancers. Bevir for the plaintiff; Kemplay for the judg ment creditor; Bacon, Cole, Toller, Rogers, and Speed for the other creditors. The Vice-Chancellor said, that the registra tion was sufficient notice to the subsequent ine cumbrancers of the judgment, and was there→→ fore valid under the 1 & 2 Vict. c. 110. Vice-Chancellor Wood. Boyse v. Colclough. Jan. 13, 1855. STAYING TRIAL OF ISSUE AS TO VALIDITY OF WILL PENDING APPEAL FROM IRISH 226 Superior Courts: V. C. Wood.-Queen's Bench. A motion was refused to stay the trial of an issue as to the validity of a will, relating to English and Irish estates, until the decision of the House of Lords on an appeal from the Irish Court, as to the Irish estates. THIS was a motion to stay the trial of the issue directed in this suit, as to the validity of a will relating to English and Irish estates. It appeared that an appeal was pending from the decision of the Irish Court as to the validity of the will, and it was now sought to stay the trial pending the appeal. J. V. Prior in support; Rolt and Cairns, contrà. Court of Queen's Bench. LIABILITY TO MUSEUM POOR-RATE. OF THE CROWN. Held, on special case,that the Museum of Prac tical Geology, which was built on a portion of the Crown lands at the public expense, and kept in repair by the Commissioners of Public Works, and the expenses defrayed by the Lords of the Treasury out of an annual Parliamentary vote, is not liable to be rated to the poor under the 43 Eliz. c. 2, notwithstanding the students paid 201. The Vice-Chancellor said, that the question on entrance and 201. a year, and the prowas for the discretion of the Court: Nerot v. fessors who delivered lectures were allowed Burnand, 2 Russ. 56; Suisse v. Lord Lowther, to receive a portion of such sum. 2 Hare, 439. The parties might desire the trial of the issue before the argument of the appeal, THIS was a special case as to the liability of as the decision of the jury might be influenced the Museum of Practical Geology, in Jermyn Street, Piccadilly, to be rated to the poor under by the judgment of the House of Lords. It was besides desirable that no delay should inter- the 43 Eliz. c. 2. It appeared that the building vene, as the parties might be put to much was erected at the public expense by a parliainconvenience by the death of any of the wit-mentary grant on land which formed a portion of The motion would therefore be re nesses. fused. the hereditary domains of the Crown, and that it was kept in repair by the Commissioners of Public Works, and the expenses defrayed by the Lords of the Treasury out of funds annually Exparte Governors of Hawkins' Hospital, Chat- voted by Parliament. The museum containe-1 ham. Jan. 13, 1855. INVESTMENT IN CONSOLS OF PURCHASE MONEY OF HOSPITAL LANDS. Upon lands belonging to a hospital being taken by a dock and railway company and the purchase-money, amounting to 440l., paid into Court, an order was made on petition for the investment of the same in consols in the names of the governors, ind for the dividends to be paid them as on their other stock. THIS was a petition for the investment by the Accountant-General in consols, in the names of the governors of this hospital for the relief of aged or decayed seamen, of a sum of 440., the purchase-money of certain lands taken by the Thames Haven Dock and Railway Company, and paid into Court. It appeared that there was a considerable sum already invested in consols, and it was sought to have this amount added, and the dividends thereon received together with the rest. models of machinery for working mines and specimens of rocks, ores, and minerals, and lectures were delivered by professors, who received, besides the sum paid them by the Treasury, a portion of the fees paid by students, and which were 207. on admission and 201. a year. Pashley and Keane in support of the rate; Attorney-General and Willes contrà. The Court said, that as the property was in the exclusive occupation of the Crown for public purposes, it was not liable to be rated, Her Majesty was seised in fee simple, and although the Commissioners were entitled under the 8 & 9 Vict. c. 104, to take and use the property, it was not for the purpose of occupation, but only to manage. There was only a user by certain persons with the sanction of the Lords of the Treasury, but no beneficial In point of fact, there occupation in any one. was no distinction between this case and that of the British Museum, or Royal Academy, and the appellants were therefore entitled to judgment. Speed, in support, referred to the 8 & 9 Vict. c. 18, s. 73, which enacts, that "all Regina v. the Justices of the East Riding, Yorkshire. Jan. 13, 1855. sums of money exceeding 201., which may be LAIN OF HOUSE OF CORRECTION. payable by the promoters of the undertaking in MANDAMUS.-RETIRING PENSION TO CHAPrespect of the taking, using, or interfering with any lands under a contract or agreement with any person who shall not be entitled to dispose of such lands, or of the interest therein contracted to be sold by him, absolutely for his own benefit, shall be paid into the bank or to trustees in manner aforesaid." The Vice-Chancellor made the order, as asked. The chaplain of a house of correction had resigned and a successor was appointed, but he afterwards applied for a retiring annuity under the 4 Geo. 4, c. 64, s. 32, on the ground that his resignation was caused by age or infirmity, and at a subsequent sessions a motion was carried for the same by a majority of 9 to 7 jus Superior Courts: Queen's Bench.-Common Pleas.—Analytical Digest of Cases. tices. At the adjourned sessions notice was given to rescind this vote at the ensuing sessions, which was accordingly done by a large majority: A rule was made absolute for a mandamus on the treasurer to pay the annuity. Quære, whether the order was bad for not specifying whether the incompetency arose from age or from infirmity, and also that it was made too late? THIS was a rule nisi for a mandamus on the defendants to pay to the Rev. Wm. Hildyard the amount of an annuity, which had been granted to him under the 4 Geo. 4, c. 64, s. 32, on resigning the office of chaplain to the House of Correction at Beverley. It appeared that he was appointed in 1817, and had written a letter in December, 1852, resigning the appointment, and that a successor had been appointed. He afterwards applied for a retiring pension under the above Statute, and an order was made accordingly for an annuity of 607. by a majority of 9 to 7 justices. It, however, appeared that at the adjourned sessions, notice was given to rescind this order, which was done by a large majority, whereupon this rule had been obtained. Sir F. Thesiger, Watson, and Perronet Thompson showed cause, on the ground that the resignation was not caused by confirmed sickness, age, or infirmity, but because he was in pecuniary difficulties, that the order did not set out whether the incompetency arose from age or infirmity, and that it had been made too late. Bramwell and Hawkins in support. The Court said, that as there was some doubt 227 AND PAID TO On an execution being put in the rooms of the plaintiff's tenant, he requested the plaintiff to pay it out, and on his refusing, the brother-in-law (the defendant) was sent for, who said to the plaintiff, "If you will pay the money for me, I will pay you again on Monday" Held sufficient to support an action for money lent, and for money paid to the defendant's use, and a rule was refused to set aside the verdict for the plaintiff. THIS was a motion to set aside the verdict for the plaintiff, and for a new trial of this action, which was brought for money lent, and for money paid to the defendant's use. It appeared on the trial before Jervis, L.C.J., at the last Guildhall sittings, that a Lieutenant Sayer had taken rooms in the plaintiff's house, and that upon an execution having been put in at the suit of his tailor, he had requested the plaintiff to pay it out, and on his refusal the defendant, who was his brother-in-law, was sent for. It appeared that he said to the plaintiff, "If you will pay the money for me, there is a good fellow, I will pay you again on Monday." An objection was overruled to this being received in evidence as insufficient under the Statute of Frauds, and the plaintiff obtained a verdict. Byles, S. L., in support. The Court said, that the money was adthe rule would be made absolute for a manda-vanced by the plaintiff for the defendant, and mus, in order to have the questions decided. the rule must be refused. ANALYTICAL DIGEST OF CASES, SELECTED AND CLASSIFIED. SCOTCH APPEALS TO HOUSE OF LORDS. See Cross Appeals. CONTRACT. Duties arising by law distinguished from those by contract.-Where the law casts a duty on a man which, without fault on his part, he is unable to perform, the law will excuse him for non-performance. But where a man, by his own contract, binds himself to do a thing, he is bound to do it, if he can-notwithstanding any accidentbecause he ought to have guarded by his contract against it. Clark v. Glasgow Assurance Company, 1 Macq. 668. COVENANT TO REPAIR. And to rebuild on accidental fire.—Real burden. Where a conveyance by a feu-contract contains a covenant that the purchaser shall keep the premises in repair,-if the premises are accidentally burnt down, he is bound to rebuild them. A subsequent taker from the first purchaser will be similarly bound, if it appear that the obligation was intended to run with the land and form a real burden on the property. Clark v. Glasgow Assurance Company, 1 Macq. 668. CROSS-APPEALS. Remarks of the Lord Chancellor as to the time limited for bringing cross-appeals to the House of Lords. Clark v. Glasgow Assurance Company, 1 Macq. 668. HEIR OF ENTAIL. Power to alter order of succession and impose new fetters.-Lord Rutherford's Act.The opinion of Lord Justice Clerk Macqueen, that a person holding an estate under an entailing deed, is at liberty to do everything with it which he is not by the instrument expressly interdicted from doing, held to be erroneous. The instrument under which he takes, |