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Superior Courts : Lords Justices.-V. C. Kindersley.–V. C. Stuart.-V. C. Wood. 225 The Lord Chancellor said, that the jurisdic- This petition was presented for the payment tion in such cases arose under the Trustees' to the perpetual curate of Bruton, of the Relief Act, which expressly provided that the dividends on 1541., the purchase-money of proceedings should be by petition. The Mas- certain glebe lands taken by the Great Western ters in Chancery Abolition Act only gave ju. Railway Company. risdiction to do at Chambers that which had Messiter in support. been formerly done by the Court, but there Osborne for the company, contrà, as to costs, must be the same foundation for such orders at referring to the 8 & 9. Vict. c. 18, s. 71, which Chambers as in Court, and that in cases like enacts, that “if such purchase-inoney or comthe present was by petition.

pensation shall not amount to the sum of 2001.,

and shall exceed the sum of 201., the same Lords Justices.

shall either be paid into the bank, and applied In re Cameron's Coalbrook Steam Coal and in manner hereinbefore-directed, with respect Swansea and Loughor Railway Campany, ex- the same may lawfully be paid to two trustees,

to sums amounting to or exceeding 2001., or parte Green. Jan. 13, 1855.

to be nominated by the parties entitled to the APPEAL UNDER WINDING-UP ACT AFTER

rents or profits of the lands, in respect whereEXPIRATION OF THREE WEEKS. of the same shall be payable, such nominations An application was dismissed, with costs, for to be signified by writing, under the hand of

leave to appeal from the decision of the the party so entitled." Master of the Rolls after the expiration of The Vice-Chancellor said, that in the absence the three weeks limited by the 12 8. 13 Vict. of all evidence of refusal by the petitioner to c. 108, s. 33, although it was suggested that comply with the requirements of the section, the decision on which his Honour proceed the company must pay the costs as asked. ed had been questioned in a recent case by the Lords Justices.

Vice-Chancellor Stuart. This was an application for leave to appeal Beavan v. Earl of Oxford. Jan. 15, 1855. from the decision of the Master of the Rolls in this case, notwithstanding the expiration of REGISTRATION OF JUDGMENT under 1 & 2

Vict. c. 110.-SUFFICIENCY AS AGAINST more than three weeks, limited by the 12 & 13 Vict. c. 108, s. 33.

SUBSEQUENT INCUMBRANCER. Prendergast in support, on the ground

that In a writ of summons the defendant's name the decision on which the Master of the Rolls was set out as Lord Edward H., and the had proceeded had been questioned in a recent appearance was entered as Lord Alfred H., case by the Lords Justices.

and a Judge's order to enter up judgment Roxburgh contrà.

was drawn up in the name of Lord Edward The Lords Justices said, that the words of H. and was so registered. It was, howthe Statute were positive, and the application ever, afterwards registered as against Lord must be dismissed, with costs.

Alfred H., sued as Edward Lord H: Held,

sufficient under the 1 & 2 Vict. c. 110, as Vice-Chancellor Kindersley.

against subsequent incumbrancers. Exparte Perpetual Curate of Bruton. Jan. 12, A WRIT of summons was issued in Novem. 1855.

ber, 1839, against Lord Edward Harley and RAILWAY COMPANY. PURCHASE-MONEY

was duly served. The appearance was entered OP GLEBE LANDS, WHERE UNDER 2001. – as Lord Alfred Harley, and a Judge's order to COSTS.

enter up judgment was afterwards given, under

which it was entered up as against Lord Edward Certain glebe lands were taken by a rail Harley, and was registered in that name in Fe

way company, and the purchase-money, bruary, 1840. It was, however, afterwards reamounting to 1541. was paid into Court and gistered as against Lord Alfred Harley, sued. not to trustees, under the 8 & 9 Vict. c. as Edward Lord Harley. A question now. 18, s. 71 : Held, that as there was no evi- arose, whether the judgment was valid as: dence of the perpetual curate having re against subsequent incumbrancers. fused to comply with the section and nomi

Bevir for the plaintiff; Kemplay for the judgnate trustees, the company were liable for ment creditor ; Bacon, Cole, Toller, Rogers, the costs of such payment in and of the and Speed for the other creditors. order on petition for payment of the divi- The Vice-Chancellor said, that the registrar dends to the perpetual curate.

tion was sufficient notice to the subsequent in Which enacts, that "no notice of motion cumbrancers of the judgment, and was there for a rehearing before the Lord Chancellor of fore valid under the 1 & 2 Vict. c. 110. Great Britain or Ireland respectively of any order of the Master of the Rolls in England or

Vice-Chancellor uwood.
Ireland, or of any of the Vice-Chancellors in
England, under the said Act or this Act, shall

Boyse v. Colclough. Jan. 13, 1855. be given after the expiration of three weeks STAYING TRIAL OP ISSUE AS TO VALIDITY after the order complained of shall have been

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DECISION.

OF WILL PENDING APPEAL FROM IRISH

made."

MUSEUM TO

LIABILITY

POOR-RATE.
OF THE CROWN.

nesses.

INVESTMENT IN

CONSOLS

226

Superior Courts: V. C. Wood.- Queen's Bench. A motion was refused to stay the trial of an

Court of Queen's Bench. issue as to the validity of a will, relating Regina (on prosecution of Rector of St. James, to English and Irish estates, until the de.

Westminster) v. de la Beche. Jan. 13, 1855. cision of the House of Lords on an appeal

OF GEOLOGICAL from the Irish Court, as to the Irish

EXCLUSIVE OCCUPATION estates. This was a motion to stay the trial of the

Held, on special case, that the Museum of Pracissue directed in this suit, as to the validity of

tical Geology, which was built on a portion a will relating to English and Irish estates.

of the Crown lands at the public expense, It appeared that an appeal was pending from

and kept in repair by the Commissioners of the decision of the Irish Court as to the va.

Public Works, and the expenses defrayed lidity of the will, and it was now sought to

by the Lords of the Treasury out of an stay the trial pending the appeal.

annual Parliamentary vote, is not liable to J. V. Prior in support; Rolt and Cairns,

be rated to the poor under the 43 Eliz, c. contrà.

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 by the judgment of the House of Lords. It was

Street, Piccadilly, to be rated to the poor under 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- the hereditary domains of the Crown, and that fused.

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 containe1 ham. Jan. 13, 1855.

models of machinery for working mines and

specimens of rocks, ores, and minerals, and

OF PURCHASE- lectures were delivered by professors, who reMONEY OF HOSPITAL LANDS.

ceived, besides the sum paid them by the TreaUpon lands belonging to a hospital being sury, a portion of the fees paid by students, taken by a dock and railway company and and which were 201. on admission and 201. a the purchase-money, amounting to 4401.,

year. paid into Court, an order was made on pe

Pashley and Keane in support of the rate; tition for the investment of the same in Attorney-General and Willes contrà. consols in the names of the governors, ind

The Court said, that as the property was in for the dividends to be paid them as on their the exclusive occupation of the Crown for other stock.

public purposes, it was not liable to be rated,

Her Majesty was seised in fee simple, and alThis was a petition for the investment by though the Commissioners were entitled under the Accountant-General in consols, in the the 8 & 9 Vict. c. 104, to take and use the names of the governors of this hospital for the property, it was not for the purpose of occuparelief of aged or decayed seamen, of a sum of tion, but only to manage. There was only a 4401., the purchase-money of certain lands user by certain persons with the sanction of taken by the Thames Haven Dock and Rail- the Lords of the Treasury, but no beneficial way Company, and paid into Court. It ap- occupation in any one. In point of fact, there peared that there was a considerable sum was no distinction between this case and that already invested in consols, and it was sought of the British Museum, or Royal Academy, to have this amount added, and the dividends and the appellants were therefore entitled to thereon received together with the rest. 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, sums of money exceeding 201., which may be

Yorkshire. Jan. 13, 1855. payable by the promoters of the undertaking in MANDAMUS.-RETIRING PENSION TO CHAPrespect of the taking, using, or interfering with LAIN OF HOUSE OF CORRECTION. any lands under a contract or agreement with

The chaplain of a house of correction had any person who shall not be entitled to dispose of such lands, or of the interest therein con

resigned and a successor was appointed,

but he afterwards applied for a retiring tracted to be sold by him, absolutely for his own benefit, shall be paid into the bank or to

annuity under the 4 Geo. 4, c. 64, s. 32, trustees in manner aforesaid.”

on the ground that his resignation was

caused by age or infirmity, and at a sub. The Vice-Chancellor made the order, as sequent sessions a motion was carried for asked.

the same by a majority of 9 to 7 jus.

FOR MONEY LENT

USE.
FRAUDS.

AND PAID TO
STATUTE OF

Superior Courts : Queen's Bench.--Common Pleas.-Analytical Digest of Cases. 227 tices. At the adjourned sessions notice

Court of Common pleas. was given to rescind this vote at the ensu

Pearce v. Blagrave. Jan. 11, 1855. ing sessions, which was accordingly done by a large majority: A rule was made ab- ACTION solute for a mandamus on the treasurer to DEFENDANT'S pay the annuity. Quære, whether the order was bad

for not spe- On an execution being put in the rooms of cifying whether the incompetency arose the plaintiff's tenant, he requested the from age or from infirmity, and also that

plaintiff to pay it out, and on his refusing, it was made too late?

the brother-in-law (the defendant) was sent This was a rule nisi for a mandamus on the for, who said to the plaintiff, If you will defendants to pay to the Rev. Wm. Hildyard the

pay the money

for me, I will pay you again amount of an annuity, which had been granted

on Monday :" Held sufficient to support to him under the 4 Geo. 4, c. 64, s. 32, on resign

an action for money lent, and for money ing the office of chaplain to the House of Correc

paid to the defendant's use, and a rule was tion at Beverley. It appeared that he was ap

refused to set aside the verdict for the pointed in 1817, and had written a letter in

plaintiff. December, 1852, resigning the appointment, This was a motion to set aside the verdict and that a successor had been appointed. He for the plaintiff, and for a new trial of this afterwards applied for a retiring pension under action, which was brought for money lent, and the above Statute, and an order was made ac- for money paid to the defendant's use. cordingly for an annuity of 601, by a majority peared on the trial before Jervis, L.C.J., at the of 9 to 7 justices. It, however, appeared that last Guildhall sittings, that a Lieutenant Sayer at the adjourned sessions, notice was given had taken rooms in the plaintiff's house, and to rescind this order, which was done by a that upon an execution having been put in at large majority, whereupon this rule had been the suit of his tailor, he had requested the obtained.

plaintiff to pay it out, and on his refusal the Sir F. Thesiger, Watson, and Perronet defendant, who was his brother-in-law, was Thompson showed cause, on the ground that sent for. It appeared that he said to the plainthe resignation was not caused by confirmed tiff, If you will pay the money for me, there sickness, age, or infirmity, but because he was is a good fellow, I will pay you again on Monin pecuniary difficulties, that the order did not day.” An objection was overruled to this beset out whether the incompetency arose from ing received in evidence as insufficient under age or infirmity, and that it had been made too the Statute of Frauds, and the plaintiff oblate.

tained a verdict. Bramwell and Hawkins in support.

Byles, S. L., in support. The Court said, that as there was some doubt 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 crder to have the questions decided. the rule must be refused.

It ap

ANALYTICAL DIGEST OF CASE S,

SELECTED AND CLASSIFIED,

APPEAL.

CONTRACT.

CROSS-APPEALS.

SCOTCH APPEALS TO HOUSE OF are accidentally burnt down, he is bound to LORDS.

rebuild them.

A subsequent taker from the first purchaser See Cross Appeals.

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 Duties arising by law distinguished from v. Glasgow Assurance Company, 1 Macq. 668. 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

Remarks of the Lord Chancellor as to the for non-performance.

time limited for bringing cross-appeals to the But where a man, by his own contract,

House of Lords. Clark v. Glasgow Assurance binds himself to do a thing, he is bound to do Company, 1 Macq. 668. it , if he can notwithstanding any accident, because he ought to have guarded by his con

Power to alter order of succession and imtract against it. Clark v. Glasgow Assurance Company, 1 Macq. 668.

pose new fetters.-Lord Rutherford's Act.The opinion of Lord Justice Clerk Macqueen,

that a person holding an estate under an en. And to rebuild on accidental fire.— Real bur- tailing deed, is at liberty to do everything with den.- Where a conveyance by a feu-contract it which he is not by the instrument expressly contains a covenant that the purchaser shall interdicted from doing, held to be erroneous. keep the premises in repair,—if the premises The instrument under which he takes,

HEIR OF ENTAIL.

COVENANT TO REPAIR.

POOR RATE.

228

Analytical Digest of Cases : Scotch Appeals to House of Lords. though not in all respects perfect, will be the mother of a bastard, instead of marrying the measure of his dominion, and the law of his father of the bastard, marries another man, who enjoyment. Hence, he cannot alter the order dies, she can afterwards, by marrying the of succession or impose new fetters on those father of the bastard, render the bastard legitiwho succeed him.

mate from the date of her second marriage, but Where an heir of entail has erroneously not from the date of the bastard's birth. made up his title under an instrument which Semble, Kerr v. Malcolm, Sec. Ser., vol. 2, he subsequently finds to be invalid, he is not p. 764, approved of by the House. thereby precluded from instituting proceedings A child born a bastard in a foreign country to have it set aside, and to have the proper in- not recognising the doctrine of legitimation per strument established. Menzies v. Menzies (the subsequens matrimonium, is an alien, although Culdares case), Haile's rep. 969, approved. his putative father was a Scotchman domiciled

The 43rd section of 11 & 12 Vict. c. 36, all his life in Scotland, and although such pucommonly called “Lord Rutherford's Act,” tative father afterwards married the mother of is not retrospective. Urquhart v. Urquhart, 1 the bastard for the express purpose of renderMacq. 658.

ing the bastard legitimate. INTERPRETATION.

The children of natural born subjects, who, Of words in England and Scotland.--Semble, under the 4 Geo. 2, c. 21, are to be considered Terms of art may have different significations natural born subjects of this kingdom, must in England and Scotland; but popular lan- have been legitimate from their birth, and not guage meant to express ordinary agreements

rendered so by the subsequent marriage of their sides of the Tweed ; and where the English born of a British father ; but a bastard, nullius ought to have the same interpretation on both parents,

To be within the Act, the child must be Courts have for a long time attached a certain meaning to certain words, the Scotch Courts, filius, can have no father. Shedden v. Patrick, having no decision to the contrary, may safely

i Macq. 535.

"OWXER.”
follow them. Clark v. Glasgow Assurance
Company, 1 Macq. 668.

See Waterworks.
JUDGMENTS.
Fraudulently obtained. - When affirmed by

See Waterworks.
House of Lords.-Where a judgment has been

PUBLIC DECISIONS. obtained by fraud, and more especially by the Of Superior Courts of Justice.-Semble, that collusion of both parties—such judgment al- the Imperial Legislature may be taken to have though confirmed by the House of Lords, may, cognisance of the decisions of the Superior even in an inferior tribunal, be treated as a Courts of Justice—especially when they relate nullity.

to questions of a public nature. Edinburgh But the allegations of fraud and collusion Water Company v. Hay, 1 Macq. 682. must be specific, pointed, and relevant; other

SOLICITOR. wise they cannot be admitted to proof. To set aside a judgment had by fraud, the

Undertaking conflicting duties.- Remarks by confirmed by the House of Lords, is to apply duties which conflict with each other. Shedden proper course, when such judgment has been the Law Peers on the danger which arises

from the assumption by professional persons of to the House for direction. Hence it is wrong to ask the Court below,

v. Patrick, 1 Macq. 536. upon proof of the fraud or collusion, to set

SPECIFIC PERFORMANCE. aside a judgment confirmed by the House. Method of compelling the specific perform

Whether the House, in such a case, can ance of agreements in Scotland and form of direct an issue, quære? Shedden v. Patrick, prayer. Clark v. Glasgow Assurance Company, 1 Macq. 535.

i Macq. 668. Case cited in the judgment: Meadows v. Duchess

STATUTE. of Kingston, Ambi. 756.

Retrospective operation. In general, Courts LEGITIMATION,

of Justice will be slow to ascribe a retrospecPer subsequens matrimonium. — From what

tive operation to any Statute. Urquhart F. period it operates.- Alien Statutes.-Children

Urquhart, 1 Macq. 658. without parents.-By the law of Scotland le

WATERWORKS. gitimation per subsequens matrimonium ope- Assessment to poor-rate. - Import of word rates only from the time of the marriage, not owner in 8 & 9 Vict. c. 83.- Under the 8 from the time of the birth.

& 9 Vict. c. 83, a waterworks' company are Semble, that the ancient fiction, which sup- liable to assessment for relief of the poor, as posed an interchange of matrimonial consent owners and occupants of the land through at the moment of conception, is not sanctioned which their pipes run. by the law of Scotland.

The word • owner" occurring in the Act Semble, that the doctrine of mid-impediments does not necessarily mean owner of the fee. It is also without foundation in the law of Scot- may mean the owner of a partial interede land.

Edinburgh Water Company v. Hay, 1 MaciqSemble, that by the law of Scotland, if the 682.

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WHAT SHOULD

BE

LIMITED LIABILITY PARTNER- (opposition to the just claims of those creSHIPS.

ditors, to have "the concern” first applied

to pay the debts of the concern, and not as THE FRAME OF THE now, in great measure to be set apart to LAW TO ESTABLISH THEM?

replace itself; so as, perhaps, out of the diWe cannot doubt but that any of our vidend taken in competition with the trade readers who have given even slight attention creditors, to start itself over again in busito this subject, must see that "family cre- ness. ditors" advancing capital to the trade, ought, We have premised this much, by way of in justice to the general trade creditors of a introducing a few comments on the report concern, to be postponed to such trade cre- of the Committee of the Law Amendment ditors. The "family" capital, worked by the Society, on the paper of Mr. Edgar we trader and in his reputed ownership,” is lately published, and, indeed, on Mr. Edthe real thing to which trade credit has been gar's paper itself. The report and paper given ; and it is, therefore, the thing which propose to establish the principle of posteminently and preferentially should pay the poning the right of the family creditor (we trade debts. Our law now allows, however, use this term as denoting all who really are that a large slice of it should be withdrawn capital advancers) to those of ordinary from the trade creditors, under the shape of trade creditors, only very partially and pera dividend to itself. Is this right or not? missively; and to do it, as far as they do Now this question will be found to be the it at all, through regulations affecting the same question as that of the propriety of mode of bringing in the capital—of regisallowing limited liability partnerships to be tering the facts of partnership—the name established; at least to include such second of the firm—the business, &c., &c.—with question,

the registrar of joint-stock companies. If the trader's books are rightly and This seems to us altogether a mistake; and fairly kept, he opens a “capital account, now that some legislation is about to take and makes the trade debtor to “capital,” and place it is very desirable that the true basis "capital” debtor to his father, uncle, &c.; of legislation should be well canvassed. and when he fails “capital” (or that which This true basis lies, we believe, simply in corremains in the trade after paying the debts) recting the error our law has made, in saying should, in all justice, and, according to the that all who participate in the profits of a buvery books themselves, be the re-payer. Now, siness shall be personally liable to its debts, this is exactly the state of things arrived at even notwithstanding that the creditors under a system of limited liability or com- never dreamt of these participators being mandite partnership. Those who (agitated partners, or gave a particle of credit on by a fear of opposition to their own trades, their responsibility. This erroneous rule or by some phantom of their own creating) (which has no base in natural justice) oppose the allowance, by our law, of the drives those who would otherwise desire to be system under consideration, profess to do secret partners, into the position of “family so for the benefit of trade creditors; whereas, creditors," taking---now there is no usury in fact, they are arguing in the most direct law-a large share of the profits in the shape VOL. xlix. No. 1,403.

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