490 Admission of Attorneys.—Sittings in Error.-Superior Courts: V. C. Kindersley. Roper, George Edward Trevor, 9, Huntley St., Sanders, Edward, The Grove, Lewisham Simpson, Henry Blythe, 46, Great Ormond Tosswill, Charles Speare, 8, Carlton Hill East, Walton, George Henry, 49, Guildford Street, Whittell, Eugene T. Curzon, 6, The Grange . To whom Articled, Assigned, &c. J. Stubbs, Birmingham. T. A. Fellowes, Chippenhamn. W. Mitchell, Petersfield; C. Rivington, Fenchurch Buildings. W. B. Collis, Stourbridge. B. Hope, Wells; T. Hyatt, Shepton Mallett. R. E. Burroughes, Norwich. J. J. Simpson, Derby. J. T. Church, Bedford Row. Messrs. Dyott, Lichfield. G. B. Lefroy, Piccadilly. Re-Admission of Attorneys on the last day of Easter Term, 1856. Garbett, Edmund, Dawley, Salap; 2. Clifton Terrace, West Brompton; and 16. Walbrook. Rising, Robert, 25, Regent Road, Great Yarmouth, and West Somerton. On the last day of Trinity Term, 1856. +Makinson, Thomas, Manchester. Sill, Richard, Walsall. Renewal of Certificates on the last day of Easter Term, 1856. Braund, Marwood Kelly, 22, Colly's Place, Camden Town, and Werrington Street. This case is in the Common Pleas. †This Notice has been given in all the Courts. EXCHEQUER CHAMBER.-SITTINGS Friday, the 1st and 2nd of May; from the IN ERROR. THE following days are appointed for holding Sittings in Error:-On cases from the Court of Queen's Bench on Thursday and Court of Common Pleas on Friday and Saturday, the 9th and 10th of May; and from the Court of Exchequer on Monday, the 12th May, THIS was an application for leave to set down this cause as a special case under the 13 & 14 Vict. c. 35 (Turner's Act). It appeared that the plaintiff was a married woman and claimed under the will of the testator a share in a legacy of 4201., which was given in trust to a class of persons generally, and also in the general residue in the event of a gift thereof being THIS was a petition on behalf of the above inoperative. The testator empowered the trus- company, to wind it up upon its becoming intees to give receipts, and they only had been solvent. It appeared that all the directors and made defendants to avoid the expense of add-one of the shareholders had been served. Superior Courts: V. C. Kindersley.-V. C. Stuart.-V. C. Wood. Held, that the enfranchisement of copyhold land is a re-investment of the purchasemoney paid by a railway company for land, under the 8 & 9 Vict. c. 18, s. 78, and for the costs of which the railway company is liable. It appeared that certain property at Holloway had been taken by the Great Northern Railway Company, part of which was copyhold, and that on the subsequent death of the owner the purchase-money, 3,500l., had been paid into Court. A suit had been afterwards instituted to administer his estate, and the land in question had, together with other property; been enfranchised, and this petition was filed for the reinvestment of the balance of the 3,500l. in other land, and for payment of the costs of the enfranchisement by the railway company. Baily and Collins in support; C. Chapman Barber for the plaintiffs; C. Purton Cooper, Glasse, and J. Hinde Palmer for the cestuis que trustent. In re Taylor, 1 M'N. & G. 210, was cited. 491 daughter for life, and after her death as she might appoint, and in default to her children. She appointed 30,000l. to her husband, and died without having appointed the residue. It appeared that the testator's estate was insufficient to produce the 120,000l. Held, that the husband's share must abate rateably with that of the children. A TESTATOR, by his will, gave a sum of 120,000l., upon trust, to pay the income thereof to his daughter, Mrs. Booth, to her separate took place during her husband's lifetime, upon use for life, and after her death, if that event and in default of appointment for her children. trust for such person as she should appoint, It appeared that she had appointed 30,000l., his lifetime without having appointed the resipart of such sum to her husband, but died in due. The question now arose, upon the estate of the testator being insufficient to produce the whole 120,000l., whether Mr. Booth should be paid in full, or whether his share should abate rateably with that of the children. Bacon, Malins, Elmsley, Craig, Selwyn, Shebbeare, Hardy, Mackeson, jun., and C. Hawkins, for the several parties. The Vice-Chancellor said, that the 30,000%. must abate rateably with the shares of the children in the residue of the 120,000l. originally intended to be given. Pickford v. Brown; Brown v. Brown. April 11, 1856. CUSTOM OF LONDON. A trust in a will to the testator's unborn grandchildren, on their attaining the age of 25 years, with directions for maintenance and to accumulate the residue, held, void for remoteness. Held, that the widow of a freeman of the City T. Stevens for the railway company, contrà, as to costs, referring to the 8 & 9 Vict. c. 18, GIFT VOID FOR REMOTENESS. WIDOW.s. 78, which enacts, that " upon the application by petition of any party making claim to the money so deposited as last aforesaid, or any part thereof, or to the lands in respect whereof the same shall have been so deposited, or any part of such lands, 'or any interest in the same, the said Court of Chancery in England or the Court of Exchequer in Ireland may in a sumway, as to such Court shall seem fit, order such money to be laid out or invested in the public funds, or may order distribution thereof, or payment of the dividends thereof, according to the respective estates, titles or interests of the parties making claim to such money or lands, or to any part thereof, and may make such other order in the premises as to such Court shall seem fit." of London has no right by the custom to her four-ninths in such lapsed gift, in respect of which, the testator was intestate, but that it was distributable under the 22 23 Car. 2, c. 10, as the testator had made the property his own by attempting to dispose thereof. THE testator, Joseph Brown, by his will, gave certain property on trust for his unborn grandchildren, on their attaining the age of 25 years, and directed the trustees to make the usual advances for maintenance, and to accumulate the residue until the shares became payable. Rolt, Chandless, Daniel, W. M. James, Cairns, Baggallay, H. F. Bristow, Bilton, and F. G. A. Williams, for the several parties. The Vice-Chancellor said, that the limitations to the unborn grandchildren were void for remoteness, and after taking time to consider on the question, whether the widow was entitled to four-ninths of such lapsed gift, under the custom of London, said, the result of the au 492 Superior Courts: Queen's Bench.-Exchequer. In re gent., &c. April 15, 1856. ATTORNEYS, APPLICATION FOR CRIMINAL INFORMATION AGAINST.—BARRISTER. Held, that a motion for a criminal information against attorneys should be made by a barrister, and not by the complainant in person. THIS was a motion for a criminal information against two gentlemen, attorneys of this Court, for breaking into his house. thorities showed that by the custom of London | The Court said, that the rule must be made on the death of a freeman, one-third of his absolute. personal property became the property of his widow, one-third went to his children, and the remaining one-third became what was termed the dead man's part. Some doubts had arisen whether the father had any power of control over the orphanage part, but is was clear that subject to the payment of his debts he had not. The Statute of Distributions, 22 & 23 Car. 2, c. 10, specially excepted the property of London and York as to the orphanage part, and the 1 Jac. 2, c. 17, removed the doubts which had arisen whether the dead man's part was within the previous Statute or not by providing that it should be distributed according to that Statute, and not by custom, and the subsequent Statute of 11 Geo. 1, c, 18, s. 17, made the whole of the estate that of the testator. The testator had made the property his own by the the attempt to dispose thereof, and the custom did not apply: Wheeler v. Sheer, Moseley, 302, and the widow was not entitled to the fourninths she claimed in the portion as to which there was an intestacy, but it became divisible under the Statute of Distributions. Court of Queen's Bench. In re John Collins, gent., one, &c. April 15, 1856. ATTORNEY.-MISCONDUCT.-STRIKING-OFF THE ROLL. A rule was made absolute to strike an attorney off the Roils upon a similar order having been made in Chancery for his misconduct in instructing counsel to appear and consent to the payment of a fund out of Court, where he had no authority to do so. THIS was a rule nisi obtained on November 8 last, to strike John Collins off the Roll of Attorneys of this Court, upon an affidavit of his having been struck-off the Roll of Solicitors in Chancery by an order of the Lords Justices, dated August 2, 1855. It appeared that Mr. Collins was the solicitor of a gentleman of the name of Bastow, and also of his own niece, Mrs. Wheatley, and her brother, and of her husband, who were all interested in a fund in the Court of Chancery, and that Mr. Collins had, without authority, instructed counsel, on behalf of Mr. Bastow and Mr. and Mrs. Wheatley, to consent to the payment out of Court of the fund, for purposes alien and opposed to their interest. This rule had been enlarged on November 26, to enable Mr. Collins to apply to the Lords Justices for a rehearing in order to be restored to the Roll, to the first day of Hilary Term, and further enlarged on Jan. 31 last to the present Term. Their lordships having refused to restore Mr. Collins, the rule nisi now came on for hearing. Watson for Mr. Collins; H. J. Hodgson for the Incorporated Law Society, to whom the order of the Lords Justices had been directed to be communicated for the purpose of the present rule being obtained. The applicant appeared in person. The Court said, it was the settled practice that none but a barrister could move for a criminal information, and refused to entertain the motion accordingly.' Court of Exchequer. Guardiano v. Brown. April 15, 1856. COMMON LAW PROCEDURE ACT, 1854.—SET TING ASIDE AWARD.—DELAY IN MOVING. Held, that where a porty is unable to move in the next following Term under the 17 & 18 Vict. c. 125, s. 9, to set aside award, leave of the Court should be obtained in order to such delay. And where such leave had not been obtained, held that the mere illness of the party whereby he was unable to attend to business was an insufficient excuse. THIS was a rule nisi obtained on Jan. 19. last, to set aside an award, which was made in July, 1855. Petersdorff showed cause on the ground that the application was too late under the 17 & 18 Vict. c. 125, s. 9, which enacts, that "All all applications to set aside any award made on a compulsory reference under this Act shall and may be made within the first seven days of the Term next following the publication of his award to the parties, whether made in Vacation or Terin; and if no such application is made, or if no rule is granted thereon, or if any rule granted thereon is afterwards discharged, such award shall be final between the parties." Watson and Joyce, in support, contended that the delay was satisfactorily accounted for by the affidavits of the plaintiff and his medical advisers of his being ill and unable to attend to business during the whole of Michaelmas Term. The Court said, that, under these circumstances, the plaintiff should have obtained leave to defer his application pon an affidavit of these facts. The rule requiring such applications to be made within the Term next after the making of the award was a salutary one, and the excuse offered was insufficient. The rule would therefore be discharged. 1 See In re-, 3 N. & M. 566: Exparte Pitt, 5 B. & Ald. 1077; 2 Dowl. P. C. 439. They have, however, arrived at the conIt will be recollected that the Commis- clusion, that it would be expedient further sioners, since their Report on the state of to extend the jurisdiction of Courts of the law and of the jurisdiction of the Courts Equity in cases in which the Courts grant in relation to matters testamentary, have equitable relief, but in which the relief canprincipally directed their attention to the not, according to the present course of the mode of taking evidence in the Court of Court, be extended to the final settlement Chancery, introduced by the Act for the of the dispute between the parties. They Improvement of the Jurisdiction of Equity state, for example, that a person injured by and the General Orders made under it; and a wrongful act, which would entitle him to they have recently considered the course of damages in a Court of Law, and to an inproceeding adopted in drawing up the de- junction in Equity restraining the further crees and orders of the Court. continuance of the wrongful act, applies for In their First Report they stated that an injunction in Equity without previously they proposed in a future Report to discuss resorting to a Court of Law for damages. the questions of abolishing the distinction A Court of Equity, though granting the between Law and Equity, and of blending injunction, has at present no jurisdiction to the Courts into one Court of universal juris- compel the wrongdoer to make compensadiction. They stated their opinion, that tion for the injury committed, except that without abolishing the distinction between in some cases, in which it can be shown Law and Equity, or blending the Courts that the defendant has actually derived into one Court of universal jurisdiction, a profit from the act complained of, the practical and effectual remedy for many Court has power to make him refund his evils might be found by conferring upon gains. The Commissioners are of opinion Courts of Law and Equity such jurisdic- that in all cases in which a Court of Equity tion as would enable them to administer interferes by injunction it should have jurisentire justice, without obliging suitors in the diction to give compensation in damages for one Court to resort to the aid of the other. the injury done, in addition to restraining In the mean time various changes have the commission of the injury for the future, been made in the jurisdiction and procedure, and that such damages should be given alboth of Courts of Law and Equity. The though the act complained of may have Common Law Procedure Acts and the produced no profit to the wrongdoer. They Chancery Amendment Acts have to a con- are further of opinion that a plaintiff obsiderable extent widened the ground com-taining an injunction in equity should not mon to the jurisdiction and procedure of be entitled to proceed at law for damages. both Courts; and the Commissioners think Again, they observe that a person entitled that until the effect of these changes has to the specific performance of a contract, been more fully ascertained by experience cannot in general obtain in equity compenthey could not usefully prosecute their in-sation for losses which he may have susVOL. LI. No. 1,468. DD 494 Third Report of the Chancery Commissioners. cally performed, or that he may have damages for its nonperformance, in case the Court should be of opinion that the contract ought not to be specifically performed, and that the Court should have jurisdiction to give such damages by way of alternative relief. tained by its nonperformance. It is obvious the Court be entitled in equity to a specific that the performance of a contract at a time performance of the contract, to ask in the subsequent to that at which it ought to alternative that the contract may be specifihave been performed may be a very inadequate remedy for the injury committed by a refusal to perform it; and they are of opinion that in all cases in which damages could be recovered at law for breach of a contract directed by a Court of Equity to be specifically performed, the Court should have jurisdiction to grant compensation in damages for the loss sustained up to the time of the contract being performed, in addition to decreeing its specific perform ance. They also think that the exercise of the jurisdiction as to damages should not be discretionary with the Court, but that the party should be entitled to require the Court to adjudicate upon his right, and if his right There are other cases of contract in should be established, to have the amount which the Court, without any default on of damages assessed; and the Commisthe part of the plaintiff, finds itself unable, sioners do not apprehend that there would from special circumstances, to grant him the be any difficulty in the damages being aspeculiar equitable relief of specific perform- sessed by a Court of Equity in such cases ance, and in which the Commissioners think as they have adverted to. Such a jurisdicthe Court should have jurisdiction to give the plaintiff such other compensation as he ought in justice to have. tion has been frequently exercised of late years upon applications for a writ of ne exeat regno, or an injunction, in which the Court has declined to interfere except upon the terms of the applicant undertaking to be answerable in damages in case it should appear that he was not entitled to the relief asked; and has afterwards proceeded to assess the damages. It very frequently happens, in suits for enforcing the performance of contracts, that the Court is satisfied that a valid contract has been entered into, and that a Court of Law would give damages for breach of it, but that there are particular circumstances in the case, which prevent the Court from In many of such cases it might be expedecreeing specific performance, and con- dient to have the amount of damages assequently it leaves the party complaining to sessed by a jury, on an issue quantum damhis remedy at law. For instance, a trustee nificatus, and power should be given to the may have contracted to sell a trust estate Court for this purpose, to send such issue without disclosing the trust, for an inade- to be tried at Nisi Prius, or before the quate consideration, or otherwise upon sheriff, or in the County Court. terms which, as between him and his cestuis que trust, would be a breach of trust. To enforce such a contract against the trustee by decreeing specific execution would be contrary to the established principles of equity, and accordingly the Court would decline to interfere, leaving the claimant, who, so far as his own conduct was in volved, had a perfectly unimpeachable case for equitable relief, to bring an action in another Court for breach of the contract. Other instances might be enumerated; and as the Court exercises its discretion in each case brought before it, according to its particular circumstances, it is often difficult to determine before suit whether the contract is one the performance of which can be enforced in equity, or one on which the plaintiff should be left to his remedy at law. The Commissioners think that it should be competent to a party who, except for such special circumstances as they have adverted to, would in the ordinary course of The questions of transferring to the Court of Bankruptcy the administration of the estates of deceased traders, and of making the Commissioners and officers of the Court of Bankruptcy auxiliary to the Court of Chancery, have also been considered by the Commissioners, and they expressed their views on these subjects in a memorandum laid before the Lord Chancellor in the month of May, 1854, a copy of which is subjoined. For the reasons therein set forth, they arrived at the conclusion, that an extension of the jurisdiction of the Court of Bankruptcy to the administration of deceased traders' estates would not be beneficial to the public, and that, having regard to the abolition of the office of Master in Chancery and of many formal proceedings in the Court of Chancery, it would not be expedient to make the Commissioners and officers of the Court of Bankruptcy auxiliary to the Court of |