410 Notes of Week.-Superior Courts: Lord Justices.-V. C. Stuart. Lords Justices. ingly. The executors to be at liberty at all Barlow and another v. Warburton and another. reasonable times to inspect the accounts, and an inquiry to be made at Chambers as to the sale of the partnership. March 13, 1856. Held, varying the order of Vice-Chancellor In re Claus, exparte Claus. March 14, 1856. BANKRUPT.-PETITION OF APPEAL.-CER- The Commissioner Stevenson refused a bank- THIS was an appeal from the decision of Vice-Chancellor Stuart granting an injunction THIS was an application that this appeal to restrain the defendants, the surviving part- from the decision of Mr. Commissioner Stevenners of Mr. Abraham Barlow, and of whom the The Lords Justices, upon his solicitor being plaintiff's were executors, from continuing the son refusing this bankrupt his certificate and business until the hearing, and for the appoint-protection, might stand over in order that the bankrupt, who was in Germany, might conment of a receiver and manager. It appeared sult his professional advisers, and for protecthat by the terms of the deed of partnership, tion in the meantime. It appeared that the in case any of the parties died before the expi- assignees intended to institute criminal proration of the term, the legal personal represen- ceedings against him. tative should have the option, upon giving one G. M. Giffard in support; Bacon and Aspimonth's notice, of succeeding him; but if no nall for the assignees, contrà. such notice were given, that the surviving partners might buy his share upon certain terms, or dissolve, in which latter case the unable to undertake that the bankrupt should assets were to be realised and the proceeds distributed. The plaintiffs had given notice to continue, but on being refused on two occasions to see the books, they filed this bill for a dissolution, accounts, and to payment of onethird, and in the meantime for the appointment of a receiver and manager and an injunction. Bacon and Druce in support; Malins and Bird, contrà. The Lords Justices said, that as the conduct of the surviving partners was not impeached, they were entitled, according to the practice of this Court, to be appointed receivers and managers, upon giving security, and the order of the Vice-Chancellor would be varied accord not leave the country with leave of the Court, refused to give protection ad interim, but allowed the petition to stand over. Vice-Chancellor Stuart. HUSBAND AND WIFE. ENLARGING TIME FOR CLOSING EVIDENCE FOR EXAMINATION OF WIFE.-UNDERTAKING. Order made to enlarge the time for closing the evidence and for the attendance of the defendant's wife before the examiner to be examined on the defendant's behalf, but on its appearing that she was in personal Superior Courts: V. C. Stuart.-V. C. Wood danger if her husband knew her abode, his counsel and solicitor were required to undertake no attempt should be made directly or indirectly to discover her residence, or in any way to molest her, and the solicitor also to sign the registrar's book. 411 place. It appeared that the abstract was not delivered until March 11, 1854, nor a complete title shown before the conveyancing counsel until Jan. 10, 1856,-an abstract of the earlier title having been required. The question now arose, whether the petitioners were liable to pay interest, which exceeded the rents by about 600l., from Jan. 2, 1854, to the present time. Bacon and W. Morris appeared in support of this motion on behalf of the defendant, to enlarge the time for closing the evidence for one month after the plaintiff's solicitor should Craig and Elderton for the petitioners; have given him a particular in writing contain-Wigram and Goldsmid for the vendors; Hobhouse for the railway company. ing the present abode of his wife in order to her being examined, and that the plaintiff's solicitor might give such particulars within two days after service of the order now applied for. Malins and Martindale for the plaintiff; Renshaw for the wife, contrà, on the ground that she was in personal danger if her abode were made known to the defendant. The Vice-Chancellor said, that there was ample power to protect the wife, but she ought to appear before the examiner and give evidence. The order would therefore be made for her attendance, but upon the undertaking of the defendant's counsel and solicitor that no attempt should be made directly or indirectly to discover her residence or in any way to molest her. The solicitor would also undertake and sign the registrar's book. In re Newcastle and Berwick Railway Company, exparte Dean and Chapter of Durham. March 14, 1856. VENDOR AND PURCHASER.—CONDITIONS OF SALE. INTEREST.-TITLE. Conditions of sale provided for the purchasers to receive the rents and profits from Christmas, 1853, and for the completion of the purchase and payment of the money on Jan. 2 following; but that if from any cause whatever the purchase was not then completed, the purchasers should pay 5 per cent. on the purchase-money until completion. The abstract was not delivered until March 11, 1854, and a perfect title was not shown until Jan. 10, 1856: Held, that the purchasers were nevertheless liable to pay interest, and although it exceeded the rents by about 6001. pur IT appeared that the petitioners had chased by private contract in October, 1853, in the conditions as to the purchasers' right to The Vice-Chancellor said, that the stipulation the rents and profits and to pay interest must be treated as substantial and to have effect, the costs of the investment, &c., to be paid by the railway company. Held, that subsequent incumbrances on the reversionary interest in real estates devised in trust for sale, were entitled, having given notice to the trustees, in priority to a previous one who had not given such notice. CERTAIN real estates were devised, upon the determination of a life estate, in trust for sale, and it appeared that one of the shares in such reversion had been encumbered, but that the first incumbrancer had not given notice to the trustees. The estate having now been sold in this suit, the question arose, whether such incumbrancer was entitled to priority to the subsequent ones, who had duly given notice. Daniel, W. P. Murray, and Bilton for the incumbrancers who had given notice; Cadman Jones for the first incumbrancer; Rolt, Speed, Lambert, and Hatchard, for other parties. The Vice-Chancellor said, that in this case none of the legatees could have reached the estate except through the trustees and except in the shape of money, and that therefore the principle of Foster v. Blackstone, 3 C. & F. 456, applied, and the subsequent incumbrancers were accordingly entitled in priority to the first, who had not given notice. certain lands sold under a decree, with the Stiff v. Cassell and another. March 12, 1856. proceeds of other lands taken by the above railway company, subject to the purchase, title, and conditions of sale being approved by the Court. One of the conditions provided that they should pay the money into Court on or before Jan. 2, 1854, on which day the pur. chase was to be completed and the purchasers let into possession of the rents and profits from Christmas, 1853, but that if from any cause whatever the purchase-money should not be paid as aforesaid, they should pay interest at the rate of 5. per cent. thereon, from Jan. 2, 1854, until such payment should actually take BILL BY PROPRIETOR OF PERIODICAL 412 Superior Courts: V. C. Wood. cal, and the plaintiff was obliged to employ another person to complete the tale. A demurrer for want of equity was overruled, with costs, against a bill to restrain such defendant from writing in such paper. Ir appeared that the plaintiff, who was proprietor of the London Journal, had agreed that the defendant should write two tales for that periodical, extending over one year, the titles to be thereafter agreed on, and for which he agreed to pay 10l. per week for each number, and he agreed to continue to receive one number weekly during that term, conditionally on the defendant not writing for any other publication which should be sold or published at a price less than 6d. The defendant agreed to the arrangement, and supplied a portion of the tale, but afterwards he transferred his services to the defendant Cassell, the proprietor of the Illustrated Family Newspaper, and the plaintiff employed another gentleman to complete the tale. A motion for an injunction in a suit to restrain the publication of any work of fiction written by the defendant and to restrain the defendant from so writing, was directed to stand over until the plaintiff had established his right at law, but the defendant Smith demurred for want of equity. Willcock and W. Morris in support. The Vice-Chancellor said, that the contract was for a year certain, and there was no breach by the plaintiff in employing another person, upon the defendant's default, to complete the tale. The demurrer was therefore overruled, with costs. Ellice v. Forsyth. March 13, 1856. Tarratt v. Lloyd. March 13, 1856. EQUITY JURISDICTION IMPROVEMENT ACT. DEATH OF ONE DEFENDANT. REPRESENTATIVE UNDER S. 44. In a suit for the specific performance of an agreement for a lease, one of the defendants died in Havannah, as appeared from letters from that place giving details of his illness, death, and funeral, and also that he was insolvent, and an affidavit of his father declining to administer was produced: Held, that upon his father's refusing to represent his estate under the 15 & 16 Vict. c. 86, s. 44, an order would be made appointing another person-such refusal to appear on the face of the order. THIS bill was filed for the specific performance of an agreement for a lease, and it appeared that one of the defendants had since died in the Havannah in insolvent circum stances. This motion was accordingly made under the 15 & 16 Vict. c. 86, s. 44, which enacts, that "if in any suit or other proceeding before the Court, it shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court either to proceed in the absence of any person representing the estate of such deceased person, or to appoint some person to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons, if any, as the Court shall think fit, either specially or generally by public advertisements; and the order so made by the said Court, and any orders consequent thereon, shall bind the estate of such deceased CROSS-BILL. — DISMISSING FOR WANT OF person in the same manner in every respect as PROSECUTION.-COSTS. A cross bill was filed and stood over by arrangement, until the decree in the original suit. It appeared that if the plaintiff in the cross-bill had failed in the original, it would have been necessary to try the ques tion there raised. The decree in the original bill was however in his favour, and the cross-bill was not procceded with: A motion was granted to dismiss it with costs for want of prosecution. if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the Court." Druce in support, upon letters from the Havannah giving the details of the defendant's illness, death, and funeral, of his being insolvent, and on the affidavit of his father declining to administer. Selwyn, Pigott, and J. T. Humphry, for the THIS was a motion to dismiss this cross-defendants, contrà, on the ground of the inbill for want of prosecution, with costs. Dickinson in support; Daniel and Sargent, contrà, as to costs. The Vice-Chancellor said, the plaintiff in this cross-bill had evidently filed it to try a question, which was necessary, in case the original decree had gone against him. It appeared, however, that he had succeeded, and it became therefore unnecessary for him to proceed with the cross-bill, and as there appeared to be nothing in the correspondence but an understanding that the cross-bill should stand over until the hearing of the original suit, the motion would be granted with costs. sufficiency of the death and insolvency, and that the plaintiff should amend. The Vice-Chancellor said, that the evidence of the death was sufficient to have obtained letters of administration, and there was primá facie evidence of the insolvency. If, however, there were assets, the order would not prejudice the defendants, as they would be entitled to contribution from his estate. It would be better if the father, who would be entitled to administer, would consent to represent the estate, but if not, the order would be made, showing on the face of it that the father had appeared and declined to represent the estate, upon the usual affidavit of fitness. NEW COURT OF PROBATE. IN a subsequent part of this Number an analysis is given of the Solicitor-General's Bill, "to abolish the Jurisdiction of all the Ecclesiastical and peculiar Courts in England and Wales, in all matters relating to Wills and Administrations,-to establish a distinct Court of Probate, and otherwise amend the Law in relation to the Administration of the Estates of deceased persons." We propose in this place to state briefly the principal means by which these objects are sought to be attained. During the temporary absence of the Judge, the Master of the Rolls or a Judge of the Superior Courts, or a Vice-Chancellor may act as Judge. And during the absence of the Master of the Rolls or any Vice-Chancellor, the Judge of the Probate Court may act as Judge of the Court of Chancery. The Judge is to rank next after the Vice-Chancellors, and to have a Secretary, Usher, and Trainbearer.1 TESTAMENTARY OFFICE AND OFFICERS. A "Testamentary Office" is to be established in the Metropolis, and the following officers appointed : One principal Registrar-Salary 2,5007. Sixteen Official Proctors at 1,0007. Instead of transferring the jurisdiction of the Ecclesiastical, Manorial, and other Courts in regard to Wills and Administrations (as proposed last year) to a Branch of the Court of Chancery, it is now intended 6007. to establish a distinct "Court of Probate" and Administration. The proposed Act is to be called "The Testamentary Jurisdiction Act, 1856," and is not to extend to Scotland or Ireland, but probates granted in England are to be valid in Ireland and Scotland. JURISDICTION OF THE COURT. The Court is to have the same jurisdiction as now vested in the Court of Chancery with respect to the Construction of Wills, the Declaration of the rights of parties, and the Administration of the Estates of deceased persons, with all the powers now exercised by the Prerogative Court. And an Appeal is to lie to the House of Lords. The Court is to sit in London or Middlesex. The Judge is to be an Advocate VOL. LI. No. 1,464. And so many clerks, &c., as the Lords Chancellor and the Lords of the Treasury think fit. The principal Registrar is to be an Advocate or Barrister of five years' standing, and the present Deputy Registrars, Clerks of Seats, &c., are to be retained. The future Registrars and Official Proctors must be selected from Advocates, Bar The Judge is to have a salary of 5,000l., the Secretary 300l., the Usher 2001., and the Trainbearer 100l.,-with retiring pensions. The Secretary's salary seems small, especially when compared with that of the Usher. 2 The duties of the 16 official proctors, with power to add eight more, do not very clearly appear in the Bill. Perhaps these appointments may furnish a convenient amount of patronage to disarm opposition. N 414 Abolition of the Ecclesiastical Courts. risters, Proctors, Solicitors, or Attorneys.3| The Accountant-General and Taxing Masters in Chancery are to act also in those capacities in the new Court. PRACTITIONERS OF PROBATE COURT. At the time of the passing of the Act, Advocates in the Ecclesiastical Courts are to be entitled to practise as counsel in any Courts of Law or Equity, and to take rank and precedence according to the date of their admission as Advocates. Proctors in the Ecclesiastical Courts may, within a year after the passing of the Act, be admitted Solicitors in Chancery on production of their admission as Proctors, and afterwards in like manner be admitted as Attorneys in the Superior Courts. These admissions, we presume, will take place without examination. Articled Clerks to Proctors are also to be entitled to admission as Solicitors in Chancery, subject to the like rules as if articled to a Solicitor or Attorney-of course they will be subjected to examination. Executors or administrators are to take probate or administration within two months, and within six months to file an inventory of the effects of the deceased. Suits may be instituted by bill, claim, or petition, to establish a will against the heir-at-law; and the Court may in a summary way order instruments which purport to be testamentary to be produced. The wills, &c., in the present Ecclesiastical Courts are to be transmitted to the Testamentary Office; and a safe and convenient depository for the wills of living persons is to be provided. The Court is authorised to appoint a representative of the real estate of a deceased person, with power to sell, convey, or mortgage. Provision is also made for pending suits, and remuneration may be directed to administrators. before the Court and a special or common Issues on questions of fact may be tried jury, and provision is made for the attendance of witnesses. New trials, also, may be granted if the Court be dissatisfied with the verdict. It is provided that Solicitors and Attor neys may practise in the Probate Court, and Rules of practice will be issued to reguthe Laws concerning Solicitors and Attor-late the Contentious Jurisdiction. neys are to extend to this Court, and the Commissioners for taking Oaths in Chancery may take Oaths therein. THE MODE OF PROCEEDING. To obtain probate or administration is set forth in the Bill, and copies of probates and administrations are to be printed. And the Registrar is to transmit copies to the following repositories: 1. The Metropolitan Register Office of Births and Deaths in London. 2. The Prerogative Office in Dublin. 3. The Commissary in Edinburgh. 4. The Registrar of Births and Deaths in the District where the party died. 5. Such other offices as the Lord Chancellor may direct. Such printed copies may be inspected for 6d. each, and printed copies sealed and stamped may be sold under due regulations which may prevent abuse. 3 Whilst the principal Registrar is to be selected from the rank of Advocate and Barrister, we think the other Registrars might properly be taken from the body of Proctors or Solicitors. See post where compensation to the amount of one-half their profits is provided. The original will and a copy, with an affidavit in a printed form is to be left at the office, or sent by post from the country. The deposit of copies of wills where the testator died will remove in a great degree the objection to a Metropolitan Office. COUNTY COURT JURISDICTION. Where personal property under 2007. the County Court is to decide all disputed questions, and so where the property is real and personal not exceeding 3001. |