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Notes of the Week.-Superior Courts: Lords Justices.- Rolls.
405 notice did not complete their testimonials of and John Mercer Johnson, jun., Esq., to be due service ; and the number entitled to be Solicitor-General and Members of the Execuexamined was only 82.
tive Council for the Province of New Bruns
wick. Of these, were absent
Her Majesty has also been pleased to apWithdrew during the Examination 2 point Antonio Micallef, Esq., C.M.G., one of Passed
her Majesty's Judges for the Island of Malta, Postponed
to be a Member of the Council of Govern5
ment of that Island-From the London Gazette The Examiners were Master Templer, of the of March 16. Court of Exchequer, Mr. Frere, Mr. Maynard, Mr. George Spilsbury, solicitor, has been Mr. Ranken, and Mr. Williams.
appointed Clerk of the Stafford County Court (Circuit No. 26), in the room of Mr. Thomas
Edye, resigned. COSTS AT THE EQUITY JUDGES' CHAMBERS. Messrs. M. Hume and E. D. Maddy have
In referring to the additional costs allowed been appointed First Clerks, and Messrs. F. in special matters under the order of 2nd Fe- Drake, W. Walter, and R. G. Harwood, have
been appointed Third Class Clerks in the Chaburary, 1855, not exceeding 101. 108., in lieu ritable Trust Commission. of the former sum of 1l. 18., an error was Mr. Henry Gordon has been appointed made at page 371, in the date of the previous Sheriffs' Clerk of Dumfriesshire. order, which should be 23rd October, 1852.
The Queen has been pleased to appoint the Right Honourable Sir John Young, Bart.,
Barrister-at-Law, to be her Majesty's Lord LAW APPOINTMENTS.
High Commissioner in and for the United The Queen has been pleased to appoint States of the Ionian Islands.- From the London Charles Fisher, Esq., to be Attorney-General, Gazette of March 20.
RECENT DECISIONS IN THE SUPERIOR COURTS.
sented under that Act, and the question arose, In re Fozard's Trust, March 16, 1855.
whether the fund was subject to the settlement,
or passed to her as tenant in tail absolutely. TRUSTEES' RELIEF АСТ. JURISDICTION The Vice-Chancellor Wood having held that
UNDER.—LEAVE TO FILE she took absolutely (reported i Kay & JohnBILL.
son, 233), this appeal was presented. On the marriage of an infant, her property to
Willcock and W. D. Lewis in support; Rolt which she was entitled under the marriage and Browell, contrà; Buchanan for other settlement of her father and mother as parties. tenant in common in tail, was settled, but The Lords Justices said, that they had no on her second marriage no settlement was jurisdiction to determine the question on the made. The property was afterwards sold, petition unless with the consent of the appeland a declaration of the trust was made in lants, and on their refusing to consent, the accordance with the settlement, but neither case was directed to stand over in order to file she nor her husband executed it. On pay- a bill. ment of the fund into Court under the Trustees' Relief Act, held that a declaration
Masicr of the Rolls. of the rights of the parties could not be made without the consent of her and her
Hatch v. Hatch. March 14, 15, 1855. husband, and on their refusal a bill was di- WILL.-CONSTRUCTION. – SUCCESSIVE
rected to be filed. It appeared that upon the marriage, in A testatrix by will devised the presentation 1790, of an infant, who was entitled under to a rectory to her son Henry upon his the marriage settlement of her father and obtaining a qualification to assume holy mother to a share in certain real estate
orders, and in default of his obtaining no as tenant in common in tail, a settlement of such qualification, then the presentation such property was made, but that none was
should vesi in her son Charles, and if he made on the death of her husband and second should not be qualified then to her third son marriage, although still a minor. The pro
Thomas. Neither Henry nor Charles were perty was afterwards sold, and a fine levied,
qualified, and Thomas died, having left his and a declaration of trust so far as regarded
interest to his son: Held, on special case, her share was made whereby it was declared to
that such son was entitled. be held on the trusts of the settlement, but This was a special case, from which it apneither she nor her husband executed the deed. peared that the testatrix, Mrs. Hatch, by her The money having been paid into Court under will devised the presentation to the rectory of the 10 & il Vict. c. 96, this petition was pre- Sutton, in the county of Surrey, to her son
DEVISE OF PRESENTATION TO RECTORY.
Superior Courts : Rolls.-V. C. Kindersley. Henry upon his obtaining a qualification to as- Other v. Iveson. March 14, 1855. sume holy orders, and if he obtained no such BANKER.–ADVANCE ON JOINT CHEQUE.qualification, then that the presentation should
RIGHT AGAINST ESTATE OF A DECEASED vest in her son Charles, and if he should not be qualified then to her third son Thomas. Neither Henry nor Charles were qualified, and
It appeared that on A. and T. being desirous Thomas devised his interest in the presenta
of borrowing money from a bank, the loan
was refused, unless W., their brother, joined tion to his son Henry John, who was now in possession.
in drawing the cheque, and which he acLloyd, R. Palmer, Faber, A. Smith, and
cordingly did. Upon W.'s death, held that
the bank could not treat the debt as seceral Bristowe, for the several parties. The Master of the Rolls said that the de
and charge his estate therewith, but that it vise was a successive devise to the three sons,
was joint, and the survivors H. and T.
alone were liable. and that after that to Henry and Charles had taken effect and been satisfied, it would go to
It appeared that on Mr. Arthur and Mr. Thomas, who had bequeathed his successive Thomas Iveson being desirous of borrowing a interest to his son, who was therefore entitled. sum of 500l. from the Swaledale and Wensley
dale Banking Company, the bank refused to Vice-Chaircellor Kindersley.
make the advance unless their brother William Yeates v. Roberis. March 6, 1855.
joined in the cheque, which he accordingly did
on June 2, 1848, in the ordinary form. WilFRIENDLY Society.-EXPULSION OF MEM- liam afterwards died, and the bank now filed BERS.- DELIVERY UP DEPOSIT NOTES TO this bill, by their public officer, seeking to
charge his estate with the debt, on the ground Under one of the rules, which were registered that the security was joint and several.
and duly certified under the 13 8. 14 Vict. Glasse and Fleming for the plaintiff; Baily
Thomas Iveson, without costs.
Houlding v. Cross. March 15, 1855. duly certified under the 13 & 14 Vict. c. 115,
WILL.- CONSTRUCTION.–FAILURE OF GIFT s. 13, it was provided that if any member
OF FURNITURE, &c., IN SPECIFIC HOUSE, should make default in the payment of his subscriptions he should first be fined 1s., next A testator, by his will, after describing himsuspended, and finally expelled. Disputes self as of “ Bromfield Place, Ealing, in afterwards arose between the members, and the County of Middlesex," gace inter alia the defendant and others refused to pay their to his wife for life, all the household subscriptions, and were expelled under the furniture, foc., and other articles and above rule, and the defendant refused to de- things which should be either liver up to ihe plaintiffs, who had been ap- his " said dwelling-house ” and belonging pointed trustees, certain deposit notes for
to him at the time of his deceast. He moneys paid from time to time into Messrs. afterwards removed to Battersea, where he Attwood and Spooner's bank at Birmingham,
died : Held, on special case, that the gift and which were in his possession as secretary
thereby failed. and grand-master, until the question of the This was a special case for the opinion of propriety of the expulsion were determined, the Court, from which it appeared that the whereupon the plaintiffs filed this bill to ob- testator, John Houlding, by his will, which tain the same.
commenced describing himself as of “BromSelwyn and Osler in support, citing Hodges field Place, Ealing, in the county of Middlev. Wale, W. R., 1853-4, p. 65.
sex,” gave (inter alia) to his wife for life, Glasse and Pown all for the defendant. all the household furniture, plate, &c, and
The Vice-Chancellor said that the plaintiffs other articles and things which should be in, were clearly entitled to receive the notes, and upon, or about his “said dwelling-house," and a decree was made accordingly, with costs. belong to him at the time of his decease. The
testator afterwards removed to Battersea, where
BY SUBSEQUENT REMOVAL.
upon or abont
MORTGAGE OF REAL ESTATES TO FIRM ON
Superior Courts: V. C. Kindersley.-V. C. Stuart.-V.C. Wood.
407 he died; and the question arose whether the
Vice-Chancellor UtODY. gift of the furniture, &c., failed.
Hinde v. Poole. March 14, 1555.
ADVANCES ON JOINT ACCOUNT.
UNDER POWER.---TITLE BY SURVIVOR. gift failed on account of the removal, as the word said, which referred to the furniture in
Certain real estate was mortgaged to T. H. the house at Ealing, could not be rejected.
and W. H., their heirs and assigns, to secure a sum of money advanced by them on
a joint account, and it was provided that in Vice-Chancellor Sitari.
case of default of payment it should be Andrew v. Andrew. March 14, 1855.
lawful for them, their heirs or assigns, to
sell the receipt of them their heirs, execuWILL. -REVOCATION BY SUBSEQUENT CON
tors, administrators, or assigns, to be a TRACT OF SALE, REFERENCE TO CHAM
suficient discharge to the purchaser. It BERS.
was also declared by them that the money A testator contracted to sell certain estates, was advanced on a joini account, and that
and a deposit was paid, and the purchaser if either should die while all or a part of eniered into possession, but on the death of the principal or interest should be owing, one intestate, leaving the other his heir-ut- the receipt of the survivor, his executors, law, und such other becoming bankı upt, his and administrutors, should be a sufficient assignees yave notice that they repudiated discharge. On the death of one, and upon the contract. The estates were sold by default being made, held that the survivor order of the Bankruptcy Court, und the could show a good title on a sale by auctestaior purchased, proving under the fiat tion. for the difference in price. It appeared he
By a mortgage deed, certain real estates hod, by will dated October, 1832, devised were conveyed to Thomas Hinde and William estates, including those contracted for sale Hill, their heirs and assigns, to secure a sum to the plaintiff, who filed a bill to ad- of money advanced by them on a joint account, minister the trusts of the will : Held, that and it was provided that in case of default as the Master found the contract of sale to being made in payment, it should be lawful for be binding, the will was revoked, and a re- them, their heirs or assigns, to sell the reference was directed to Chambers as to the ceipt of them, their heirs, executors, adminiestates included in the contract of sale.
strators, or assigns, to be a sufficient discharge The testator, Thomas Andrew, entered into to the purchaser. The deed also contained a a contract in writing in August, 1835, to sell declaration by them that the money was adcertain real estates in Lancashire to Messrs. vanced on a joint account, and that if either Henry and Aaron Lees, who paid 1001. as a de- should die while all or a part of the prinposit, and entered into possession. Mr. H. cipal sum or interest should remain due, the Lees died in 1836, intestate, leaving his brother receipt of the survivor, his executors, and adAaron his heir-at-law, who became bankrupt ministrators should be a sufficient discharge in December, 1837. The assignees gave no- for the same. It appeared that Hill died in tice to the testator that they abandoned all in- 1847, and that upon default having been made, terest under the contract of sale, and the pro- the plaintiff bad put up the property to sale by perty was put up to public auction under the auction, when it had been purchased by the order of the Court of Bankruptcy, when the defendant. A question having arisen whether testator became the purchaser at the price of the plaintiff could make out a good title, this 4,6001., and proved under the fiat for the dif- special case was filed to take the opinion of the ference of the former price. It appeared that Court. the testator had, in December, 1832, devised Rolt and R. Hawkins for the plaintiff; De the estates in question, with others, to the Gex for the defendant. plaintiffs, who now filed this bill to have the The Vice-Chancellor said, that there was a trusts of the will administered.
sufficient inference on the face of the deed that Bucon, Elmsley, Elderton, and Torriano for the power of sale should pass to the party enthe plaintiffs; Craig and Hall for the executor ; titled to receive the money. The whole legal Malins and J. H. Palmer for the heir-at-law. dominion over the property was given to the
The Vice-Chancellor said, that the only ma- mortgagees jointly, and the money advanced terial question on the facts found by the Mas- belonged to a joint account, and therefore the ter was, whether the contract of sale made by survivor had the same liberty of dealing with the testator in August, 1835, after the publica- and passing the estate as the two jointly had, tion of his will, revoked the devise of the and he therefore was entitled to exercise the estates in question. It was found by the Mas- power of sale. ter that the contract was a binding one, and that was conclusive as to the revocation. A re- Wood v. Grazebrook. March 15, 1855. ference would therefore be directed to Chambers to ascertain what estates were included in such contract of sale.
The purchaser of an estate was in receipt of
SPECIFIC PERFORMANCE OF CONTRACT.
ENTRY INTO POSSESSION.ACCEPTANCE
Superior Courts: Vice-Chancellor Wood.-Exchequer. the rents at the time as receiver, and after whereas the defendant was lessee at a groundreceiving back from the vendors answers to rent of 242. only. The plaintiff paid 5l. op achis requisitions on the abstract of title de- count, and gave his I 'O U for 691., the balivered, he wrote that he should retain the lance of the deposit money. It appeared that current rents as purchaser, and he also sent the rents had been raised the day before, and a subsequent letter that he should submit a that the tenants would leave if the rent was cuse to counsel as to the conveyance, but enforced. A draft of the underlease was afterwithout referring to the title : Held, that wards sent to the plaintiff's solicitor, who rethe title hed been accepted, and a decree turned it unperused, and requiring the agree. was made for a specific performance, with ment to be cancelled on the ground of fraud interest and costs.
and misrepresentation. The defendant then It appeared in this suit to enforce the spe- brought an action on the IO U, whereupon cific performance of a contract of purchase, this bill was filed for an injunction and to that the defendant was at the time in receipt annul the contract. It appeared that the of the rents of the estate as receiver, and had ground-rent of 501. would be high without the paid over to the plaintiffs from time to time payment of any premium. their respective shares. An abstract of the Rolt and J. Williams for the plaintiť; title was delivered, on which the defendant Daniel and Southgate for the defendant. made requisitions to which replies were given, The Vice-Chancellor said, that regard must and he then, in answer to an application for he had to the very little time for deliberation the current rents, wrote back that he should which had been given to the plaintiff, and to retain them as purchaser. It further appeared the haste with which he had been allowed to that he had subsequently written, stating he sign the contract, and which supported the should submit a case to counsel on a point re- view that he had been entrapped into signing lating to the conveyance, but without referring the agreement. The plaintiff had clearly to the title.
signed it on the representation that it was a Willcock and De Gex for the plaintiffs ; Rolt proper agreement for him to sign for the pur: and Shebbeare for the defendant.
pose of purchasing a lease for 75 years at a The Vice-Chancellor said, that the retaining moderate ground-rent under a given lease. It of the reats by the defendant amounted to an
appeared, however, that the defendant in sell. entry in possession, and that the letter which ing was about to fix the ground-rent, not acwas afterwards sent, only raising a question as cording to the original rate, but to what he to the conveyance, showed that the title had chose to impose; and a fair opportunity had been accepted, and there would be a decree for been given to release the plaintiff from the a specific performance, with costs and interest. agreement otherwise improperly obtained, and
it would therefore be annulled with costs. Barilett y. Salmon. March 16, 1855.
Court of Grchequer,
Brewer v. Jones. Jan. 30, 1855.
ATTORNEY.-LIABILITY TO BAILIFF'S FEES The plaintif had applied to the defendant in consequence of an advertisement for the
A rule was discharged to set aside ike verdict sale of leasehold property at a moderate
for the plainiij in an action brought by ground-reni, and on an appointment to meet
the bailij' to recover from an attorney the his clerk he signed an agreement which was
fees on executing a writ of fi. fa., ali kouge produced by the clerk and which specified a
the defendant had delivered the writ to the ground-rent of 501., whereas that paid by
sherif' without giving any directioa as to
its execution. the defendant was 241. only. It appeared that this was the full value without any
Semble, that the attorney, in order to avoid premium, and that the plaintif gave 51. and
such liability, should communicate with his
client. his I O U for 691. as deposit : Held, that there was such haste as to show that the
This was an action by a bailiâ to recover plaintif had been entrapped into signing : of fi. fa., and on the trial it appeared that the
from an attorney the fees on executing a writ and the agreement was annulled with cosis. This was a suit to annul a contract en without any direction as to its execution, who
attorney had delivered the writ to the sheriff
, tered into hy the plaintiff for the purchase handed it to the plaintiff. The verdict baring by private contract of an underlease of six passed for the plaintiff, this rule was obtained houses at Mile-end, and which were repre- to set it aside and enter it for the defendant sented by the advertisement, in consequence of which he applied, to produce a yearly rental of Quarterman, 3 Com. B. 94.
Gray showed cause, citing Walbank. 130l., the lease being for nearly 80 years at a Hawkins in support. moderate ground rent, and the price was to be 420 guineas. The plaintiff met the defendant's case cited, the attorney was liable, and that in
The Court said that, in accordance with the clerk, and, after viewing one of the houses, order to avoid such liability he should com. signed an agreement purporting to be for an municate with the client. The rule would inde se, with a ground-rent of 501. a year, therefore be discharged.
CONTRACT TO PURCHASE UNDER-LEASE
AT MODERATE GROUND-RENT. - UNDUE
ON EXECUTION OF FI. FA.
The Legal Observer,
Still attorneyed at your service."-Shakespeare.
SATURDAY, MARCH 31, 1855.
OBJECTIONABLE RULES OF TAXATION.
REMUNERATION OF SOLICITORS. item, a large proportion of the evil would
remain, unless this difficulty could be grappled with and overcome.'
The Council consequently seized this We have to notice the important Debate occasion to represent the grievance of which which took place in the House of Lords on they have long complained, on behalf of the 26th instant, relating to the remunera- their brethren generally. They accordingly tion of Sulicitors. It arose in the Com- represented that t?e old vicious principle of mittee of their Lordships on the Bill for professional remuneration had been applied the “despatch of business in the Court of to the Chamber practice, restraining the l:Chancery.” That measure proposed, in its gitimate fees of Solicitors, and impelling title “to make further provision for the them to cause steps and forms to be mulmore speedy and efficient despatch of busi- tiplied in order to obtain anything like adeness in the Court of Chancery;" and the quate payment for their services. Thus in preamble recited that, "for the prevention order to be well prepared to pass a compliof delays and inconveniences in the carrying cated account, or establish a pedigree, a on of such portion of the business of the month's previous preparation may be necesCourt as is transacted by the Master of the sary; but for this labour and pains no fee is Rolls and the Vice-Chancellors respectively allowed ; while if the preparation be omitted sitting in Chambers, it is requisite that an and the work done in the officer's presence addition to the number of junior clerks at the solicitor receives his usual fees : the tached to the Courts of the Judges respec- Judge or officer's tirne is wasted, and untively should be forthwith made ;” and it necessary delay and expense are incurred. was also recited that “a further like addi
It was urged that measures should be tion may hereafter become necessary.” It adopted to give the practitioner a direct inwas therefore proposed to empower the terest in speedy instead of dilatory proMaster of the Rolls and Vice-Chancellors ceedings. The Society, therefore, prayed each to appoint an additional junior clerk their Lordships to refer the Bill then beforthwith, and to enable the Lord Chan- fore them, and the whole operation of the cellor to appoint other junior clerks here- recent Acts, for full investigation in a Select after.
Committee of the House. The laudable object of the measure was, The case of the Solicitors was brought to prevent delay in the business of the forward by Lord Lyndhurst with his acCourt; and the Council of the Incorporated customed clear, impressive, and logical Law Society thought it a favourable oppor- manner-remarking concisely, but forcibly, tunity to bring another important topic on the objects to be attained, and the course before the House of Lords which is also to be adopted which might lead to a satisproductive of delay,--namely, “ the faulty factory result. mode of remunerating professional men, It will be seen by the Report of the De. as described by Lord Brougham, who em- bate which follows, that the Lord Chanphatically declared that whatever other cellor and Lord St. Leonards objected to changes were effected to improve our sys- the general subject of Solicitors' costs being
VOL. XLIX. No. 1,412.