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Analytical Digest of Cases: Appeals in Chancery.
"The legatees object to my paying the claim, though I think it just;" and "I not only do not dispute the claim, but admit it, thinking it just, but am compelled to refuse payment without an order of the Court."
Held, by the Lords Justices (varying the decision of the Master of the Rolls, reported 17 Beav. 330) that the debt was not revived, and that the real estate could not be subjected to it by any act of the devisees in trust, though they were also executors.— Briggs v. Wilson, 5 De G. M'N. and G. 12.
Cases cited in the judgment: Gleadow v. Atkin, 1 Cr.
And see Tenant for life.
See Vendor and purchaser, 1
Rectification of settlement - Mistake. - Upon a treaty of marriage the father of the intended wife said to the plaintiff, the intended husband, "I pledge you my word that, after the death of my wife and myself, my daughter will have £10,000 at the very least." Heads of articles, which were subsequently drawn up under the sanction of and approved by the father, and intended as instructions for a settlement, contained the following passage: "A covenant is to be drawn up by which Sir W. H. (the father) guarantees that his daughter shall, at the decease of both parents, have a property of not less than £10,000." In the settlement, which was afterwards executed before the marriage, there was a recital to that effect, but there was no express covenant by the father to make good that sum. On a bill filed by the husband, who had survived his wife, against the executor of the father: Held, dismissing with costs an appeal from the Master of the Rolls, that although the settlement, if it stood alone, could not have been rectified, yet that having regard to the articles and representation made by the father, there was sufficient evidence of mistake to authorise the court to make the settlement conformable to the articles, and that the estate of the father was bound to make up the portion of his daughter to the stipulated sum.
Held, also, that the representation of the father, though not afterwards fulfilled, yet being of intention merely, and not of fact, did not amount to such a misrepresentation as would entitle the husband to relief in equity on the ground of fraud. Bold v. Hutchinson, 5 De G. M'N. and G. 558.
Cases cited in the judgment:-De Biel v. Thomson, 3
See Jurisdiction; Marriage Articles.
See Will, 5.
See Equitable Mortgage; Foreclosure; Ship.
1. Will-Devise of land-Church Building Act.— A testator by his will, executed three calendar months before his death, devised two houses in Brighton to trustees, upon trust to sell and invest the purchase money, and to pay the dividends to his wife during her life, and at her death to make over and transfer the principal sum so invested to the treasurer for the time being of the Incorporated Society for Promoting the Enlargement, Building and Repairing of Churches and Chapels, to be applied to the uses and purposes of that society: Held, dismissing with costs an appeal from ViceChancellor Wood, 1 Kay and J. 145, that such a gift was not within the scope of the act 43 Geo. 3, c. 108, and could not be sustained either in its entirety or as a gift of the proceeds of the sale to the extent of £500, but was void under the Act 9 Geo. 2, c. 36.
The Act 43 Geo. 3, c. 108, was passed with a view of authorising limited dispositions of land by deed or will in favour of the charitable uses therein specified, but the intent of the legislature was, that the gift should be of specific lands for one or other of the specific purposes indicated in that act, and therefore a gift of the proceeds of land is not within the protection of that act, but is obnoxious to the provisions of the Statute of Mortmain, 9 Geo, 2. c. 36. Incorporated Church Building Society v. Coles, 3 De G. M'N. and G. 324.
2. Will-Construction-Bequest to corporation.Held, dismissing with costs an appeal from the Master of the Rolls, 18 Beav. 318, that a bequest to a municipal corporation, to be applied by them in such manner for such purposes as they should judge to be most for the benefit and ornament of their town, is not void under the Mortmain Act.
Where trustees have by the terms of a gift a discretion to apply the benefit of it either in a way which the law allows or in one which the law disallows, the presumption ought to be, that the discretion will be exercised in the former mode. Mayor, &c,, of Faversham v. Ryder, 5 De G. M1N. and G. 350.
Cases cited in the judgment: Attorney General v.
See Parent and child.
The Legal Observer,
SATURDAY, OCTOBER 4, 1856.
NEW COURTS, OFFICES AND
WITH A PLAN OF THE LAW DISTRICT AND
It is understood that the measures which the government contemplate submitting to the legislature in the next session are either now, or soon will be, under the consideration of the several departments to which such measures belong. We deem it, therefore, a fitting opportunity again to call attention to the necessity of erecting new courts and offices of law and equity in the neighbourhood of the inns of court. The subject may also be appropriately brought forward in connection with the proposed great central street from St. Paul's to Long Acre and thence to Piccadilly. The press has not been silent on this matter, and recently the Times noticed the progress of the street improvements, and particularly those in and near Chancery-lane, where many new building are in progress.
It will be recollected that the intended central street, so much needed for the constantly increasing traffic of the metropolis, is designed to pass by an archway over Farringdon-street; thence on the north side of the State Record Office and along Carey-street, through part of Clare Market to the top of Bow-street, where a new street to the north has recently been formed.
The best site for the new courts and offices being between Lincoln's Inn and the Temple, the new street would run on the north side of the building and the Strand on the south. On the west side a street would be formed in continuation of Serle-street, and Turnstile widened into Holborn; the east side would be bounded by Chancery-lane.
The unquestionable advantage of this site is, not only that it forms the centre of the law district, but the centre of the metropolis; and is therefore equally convenient to the public as to the profession.
We may bear in mind likewise that the palace of Westminster, containing the Houses and Offices of Parliament, is now nearly complete, except for the necessary removal of the old, inconvenient and insufficient courts adjoining Westminster Hall, the space of which is absolutely required to perfect the palace. It cannot be long before those discordant buildings are pulled down. It is to be deeply regretted that Parliament would not adopt the suggestions made in the petition of the VOL. LII. No. 1,491.
Incorporated Law Society in the year 1840, when Lord Truro, then the Solicitor-General, obtained a Select Committee, before which the most conclusive evidence of judges and their officers, of counsel and solicitors, was adduced, establishing the necessity of a removal of the courts to the vicinity of the inns of court. The judges, as in and prior to 1824 (when the present courts adjoining Westminster were re-constructed), will soon be obliged to sit in the halls of Serjeants' Inn, Grays' Inn, and other societies, until the new building be erected.
It is scarcely necessary to remind our readers that since the case was before the House of Commons, the necessity of new courts has been greatly augmented. Then the Master of the Rolls did not sit at Westminster; then there was one Vice-Chancellor; now there are three. There were no Lords Justices. There were no chief clerks of judges; now there are eight. We have now six taxing masters, and the number of registrars is largely increased, all requiring offices for themselves and numerous clerks. The business of the AccountantGeneral has immensely increased. He has charge of sixty millions of suitors' money, and receives or pays fourteen millions annually. Where is the security against fire for his books and papers, and where is the accommodation for his staff of clerks?*
We suppose the delay in providing adequate courts and offices has been occasioned by the apprehension that a large sum was requisite for the purpose. We come, therefore, to the consideration of the " ways and means" for defraying the expense; but first a word as to the amount of that expense.
It appears from the evidence before the Commons committee, that the purchase of the whole site, from Chancery-lane to New Inn and Clement's Inn, and the cost of the building, would be nearly £1,200,000; but deducting the value of ground rents of land not required for the courts and the value of
*The chief clerk of the Accountant-General of the Court of Chancery described to the committee the insufficient and inconvenient condition of the offices in that important department of the business of the court, showing that the former fire-proof rooms were obliged to be used for the additional registrars of the court; that the books relating to the large funds in court were not secured from fire; that the money in court, when the offices were built in 1775, was six millions, aud had now increased to sixty millions; that the annual amount received and paid in the previous year was nineteen millions; that the business had largely increased, there being now ten registrars where formerly there were only two, and twenty-six clerks of the AccountantGeneral, instead of four. He also stated that there was an impossibility of increasing the accomodation in the present offices.
New Courts, Offices, and Central Street, with a Plan of the Law District.
the present courts and offices, the ultimate cost would be reduced to £600,000. We conceive, however, that, instead of clearing, according to this estimate, no less than eight acres of ground, it would be sufficient (at all events, for the present) to take about four acres, commencing on the west side of Bell-yard, stopping on the east side of Boswellcourt; thus continuing Serle-street on the one side, and widening Bell-yard on the other. The sum required on this plan would, of course, be much reduced; but power should be taken in the act to complete the entire project.
The war being happily over, the State might justly be required to bestow half a million on the essential duty of providing a proper edifice for the administration of justice in this vast metropolis, the urgency of which is not, however, confined to the inhabitants of the metropolis, but extends to the entire United Kingdom. Fortunately, however, the object may be effected without any burthen on the Con solidatad Fund. There are four millions in the Court of Chancery unclaimed for a long period of time, the accumulated dividends on which amount to £1,200,000. Reserving the whole of the principal against the remote possibility of any part of it being required, it has been proposed to the government to take so much of this surplus accumulation of interest as will be sufficient to build these courts of justice. But then it should be recollected that the government are now paying a large annual rent for the offices connected with the courts. And to that extent, at least, the Treasury ought to reimburse the Fee Fund of the Court of Chancery. For under an act passed whilst Lord St. Leonards was Chancellor, it was directed that the surplus interest in question should be no longer accumulated, but paid into the fee fund, in order to reduce the fees paid by the suitors of the court.
This arrangement being made, we conceive that the Parliament might properly authorise the outlay required, and undoubtedly the suitors of the Court of Chancery would largely benefit by the establishment under one roof of all the courts and offices, whereby much of the time both of counsel and solicitors will be saved, and the business of the court proceed more rapidly and effectually.* The present
* At present the offices of the court are scattered in various parts of the law district, and many days in the busiest periods of the years are lost in passing from one office to another, and waiting if the officer be engaged, instead of being enabled in the same building of proceeding to another office where attention might immediately be given. Take the instance of taxing costs in the several courts. master be occupied, the attorney or his clerk, having several sets of costs, may go to another, and afterwards return to the first, thus, in one morning, despatching various matters. A term or sittings may often be last by the unavoidable delay that now occurs. The offices now situated in Chancerylane, Lincoln's Inn, Southampton-buildings, the Rolls-yard, Serjeant's Inn, and the Temple, if placed in one building, under one management. instead of separate establishments, would be better regulated and comparatively less expensive. For instance, where there are now separate halls and waiting rooms, one larger room may serve conveniently for several departments.
Lord Chancellor has practically admitted the necessity of abandoning Palace-yard, and has wisely settled that the sittings of all the equity courts shall be held in Lincoln's Inn and the Rolls-yard.
The following is a summary of the funds suggested as partly, if not wholly, applicable for the building of the courts:
The stock purchased with the surplus dividends arising from the suitors' fund, not directed to be invested, amounting to £1,241,188 9s. 7d.
The surplus fees, £201,028 2s. 3d.
The surplus fees of the three common law courts paid into the consolidated fund (out of which the Treasury pay pensions and compensations on abolished offices),* £350,000.
The value of the offices now occupied by the masters, registrars, clerks of records and writs, and other offices, which will be provided for in the new building, say £40,000.
The annual amount of rent paid for the taxing masters, lunacy offices, &c., £1,200, which at twenty years' purchase would amount to £24,000.
The annual rent of the Queen's Bench offices, Crown Office, Common Pleas Offices, and Exchequer of Pleas (amounting to £2,400), estimated at £48,000.
The value of the site at Westminster, now occupied by the courts there, estimated by Sir C. Barry at £86,000.
We have frequently during nearly 20 years brought this subject before our readers, and some years ago we laid before them a plan of the law district and the proposed site of the courts. It may be convenient again to devote a single page to this plan, of which we present a woodcut, taken in a diminished size from the designs of Sir Chas. Barry, and referred to in his evidence before the second
select committee in 1845.
The principal streets and the sites of Lincoln's-inn and the Temple are named in the plan, and the following are the Inns of Court and Chancery, and other places, indicated by the following numbers:
5. Lincoln's-inn New Hall.
8, 8, 8, 8. Proposed Chambers for counsel and solicitors on the east and west sides of the proposed courts.
9. The Incorporated Law Society (which is about to be considerably enlarged). 10. Rolls-court and Record-office. 11. Serjeants'-inn and Clifford's-inn. 12. Serjeant's-inn, Fleet-street. 13. Clement's-inn and New-inn. 14. Lyon's-inn.
*The pensions and compensations on carrying law reforms into effect ought to be paid out of the consolidated fund.
3. Majority of owners present to bind minority. 4. Meeting to decide question of sale, and if decided in affirmative to appoint persons to be "elected trustees."
5. Certificate by two justices of consent of owners being obtained, and of names of "elected (if any), to be sufficient evidence. 6. If determined to sell advowson, the same to become absolutely vested in trustees, and trustees to proceed to a sale.
7. As to conveyance of the advowsons.
8. Receipts of trustees to be sufficient discharges. 9. Application of moneys.
10. As to investing moneys.
11. Concurrence of two thirds of trustees necessary to give effect to resolutions.
12. For supplying vacancies in the number of
13. Trustees not to be accountable for involuntary losses.
14. Vacancies in the incumbency before sale to be filled up.
15. Owners may consent to advance of money for purposes authorized by 17 G. 3. c. 53., 21 G. 3, c. 66, 7 G. 4, c. 66, and 1 & 2 Vict. c. 23. 16. Certificate of justices' evidence of consent. 17. Extent of act.
The following are the title, preambles, and sections of the act :
An Act to enable parishioners and others, forming a numerous class, to sell Advowsons held by or in trust for them, and to apply the proceeds in providing Parsonage Houses, augmenting small livings, and to other beneficial purposes; and for giving other powers to such persons.
[July 14, 1856] WHEREAS it is expedient to authorise the sale of advowsons in cases where the same are vested in, or in trustees for, inhabitants, ratepayers, freeholders, or other persons, forming a numerous class, and deriving no pecuniary advantage therefrom, in order that the monies arising from such sales may be applied to the erection, rebuilding, or improvement (where necessary) of parsonage houses, and to the augmentation of the livings (where the same are small), and to other beneficial purposes as hereinafter provided; and that other powers should be conferred upon such
The word "advowson" means an advowson vested in inhabitants, ratepayers, freeholders, or other persons, forming a numerous class, or in trustees appointed by or acting on behalf of such persons, such persons deriving no pecuniary advantage from the exercise of such right, but does not mean an advowson belonging to any endowed charity within the provisions of "The Charitable Trusts Act, 1853," and "The Charitable Trusts Amendment Act, 1855," or either of them;
The word "owners means the inhabitants, ratepayers, freeholders, or other class of persons in whom, or in trustees for whom, an advowson is vested, such persons deriving no pecuniary advantage therefrom;
mean the trustees in whom for the time being an advowson is vested, by virtue of any act of Parliament, deed, or other instrument, in trust for or on behalf of such owners, and includes the survivors and survivor of such trustees;
The words "existing trustees"
The words "elected trustees" mean the persons
The word "trustees," without the addition of the
2. The owners of an advowson may direct the sale of such advowson; and the incumbent for the time being of the church or benefice, if required in writing by ten owners, shall convene a meeting of the owners to be held at some convenient place near to the church, for the purpose of deciding whether or not such advowson shall be sold; and every such meeting shall be called by public advertisement, to be inserted once at least in four consecutive weeks in some newspaper circulating in the county and neighbourhood in which such church shall be situate, the last of such insertions being not more than fourteen nor less than seven days prior to any such meeting, and notice of such meeting shall also, not less than fourteen days prior to the holding thereof, be affixed upon the door of such church.
3. At the meeting so called the incumbent for the time being (if present) shall be the chairman, and if he be absent, then one of the owners present, being appointed by the other owners present, shall be the chairman, and the decision of the majority of the owners then present shall bind the minority and all absent parties.
4. Such meeting shall consider and determine the question whether the advowson shall be sold, and if