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Recent Decisions: Lords Justices; Master of the Rolls; V. C. Kindersley.

RECENT DECISIONS IN THE SUPERIOR

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A sum of £1,000 was settled in default of children who should attain twenty-one or marry, and upon the death of the wife in her husband's life-time, to such persons as would have been entitled to her personal estate, in case she had died unmarried and intestate: Held, dismissing with costs an appeal from the Master of the Rolls, that a daughter surviving the wife who predeceased her husband was entitled to the fund, although she afterwards died under twenty-one, and unmarried, to the exclusion of the wife's brothers and sisters. UNDER a marriage settlement, a sum of £1000 was settled in default of children, who should attain twenty-one or marry, and, upon the death of the wife in the husband's lifetime, to such persons as would have been entitled to the personal estate of the wife in case she had died unmarried and intestate. It appeared that the wife predeceased her husband, leaving a daughter, who, however, died under the age of twenty-one, without having married. The Master of the Rolls, having held that the daughter was entitled to the exclusion of the wife's brothers and sisters, they presented this appeal.

Cairns and Archibald Smith in support; Lloyd and Hanson contrà; Shapter, Karslake, and Fischer for other parties.

The Lords Justices dismissed the appeal, with costs.

Master of the Rolls. Köhn v. Sturgis. July 8, 1856.

AL

MARRIED WOMAN-PAYMENT OF DIVIDENDS, THOUGH HUSBAND INSOLVENT ON STOCK SETTLED TO SEPARATE USE.

A sum of £1,000 stock in the London and North Western Railway Company had been assigned, upon trust, to pay the dividends to a married woman for life, for her own absolute use and benefit. Her husband afterwards became insolvent: A bill by his assignee in insolvency for payment of the dividends on such stock was dismissed with costs.

IT appeared that a sum of £1000 stock in the London and North Western Railway Company had been assigned in trust to pay the dividends thereof to a married woman for life for her own absolute use and benefit, and that, upon her husband having subsequently become insolvent, his assignee filed this bill, claiming payment of the dividends.

Amphlett for the plaintiff; Osborne for the provisional assignee; Lloyd and Surrage contrà; Hobhouse for the trustees.

The Master of the Rolls dismissed the bill, with

costs.

Vice-Chancellor Kindersley.

Wilton v. Colvin. July 16, 1856.

MARRIAGE SETTLEMENT-CONSTRUCTION OF COVENANT-FUTURE PROPERTY-POWER OF APPOINT

MENT.

A marriage settlement, after reciting that all property to which the wife might eventually become entitled should be settled, contained a covenant by the intended husband that, for the considerations aforesaid and in further pursuance of the said

COURTS.

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agreement, all and every the estate and effects of what nature or kind soever, whether real or personal, which the intended wife should become seised, possessed of, or entitled to, should be taken as a distinct estate from him and free from his debts and engagements, and should be conveyed, settled and assured upon the trusts of the settlement. It appeared that the wife at the date of the settlement was entitled to certain property under her father's will, but which was not received by her in consequence of his affairs being entangled, and that she had exercised her power of appointment in respect thereof reserved by the settlement: Held, that as the covenant did not include property to which the wife was entitled in possession, although the recital did, the fact of the deferred payment did not bring it within the scope of the covenant, and that her husband was therefore entitled.

Upon the marriage of Mr. and Mrs. Horne a marriage settlement was executed, whereby it was recited that all the property to which the wife might eventually become entitled in her own right should be settled; and the husband covenanted that, for the considerations aforesaid, and in further pursuance of the said agreement, all and every the estate and effects of what nature or kind soever, whether real or personal, whether the wife should become seised, possessed of, or entitled to, should be taken as a distinct estate from him, and free from his debts and engagements, and should be conveyed, settled, and assured upon the trusts thereinbefore expressed. There was a power of appointment reserved to the wife in the event of there being no issue of the marriage, and which she exercised over certain property to which she was entitled at the date of the settlement under her father's will, but which, by reason of his affairs being entangled, had not been paid.

The question was now raised on this special case whether such property came within the covenant. Anderson and Collins for the plaintiff; Goldsmid and Cotton for other parties.

The Vice-Chancellor, after referring to Hoare v. Hornby (2 Y. and C., Ch. 121) said that the words in the covenant imported futurity, and did not, therefore, apply to any property to which the wife was entitled in possession, and that the fact of her not having received her share under her father's will, to which she was entitled at the date of the settlement, in consequence of the entanglement of his affairs, did not bring it within the operation of the covenant, and the husband was therefore entitled.

Farrer v. Dain. July 17, 1856.

CHARITABLE GIFT-DECLARATION-COMMON ADMINISTRATION DECREE-SPECIAL ENQUIRIES.

A testatrix by will, after giving certain legacies and charitable bequests, gave the residue of her personal estate to trustees upon trust (inter alia) to the rector of a parish, to be applied in aid of a fund raised for the endowment of a thank offering church proposed upon the disappearance of the cholera in 1849: In a suit, the Vice-Chancellor refused to make a declaration in respect of this bequest, but made the common administration decree, with special inquiries as to whether tha residue consisted of pure personal estate, and also as to the charitable bequests in question.

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Recent Decisions: V. C. Kindersley; V. C. Stuart.

THE testatrix by her will, dated in May, 1854, after giving certain legacies and charitable bequests, gave all the residue of her personal estate to trustees in trust for certain charitable purposes therein mentioned, and, inter alia, one share thereof to the rector for the time being of the parish of St. Mary, Lambeth, to be applied by him in aid of the fund raised for the endowment of the thank-offering church proposed to be erected upon the disappearance of the cholera in 1849. She gave one other share to the same rector to be applied towards the education of the children of the poor inhabitants belonging to the Church of England of the district in which the said church should be situate.

The question was raised in this suit, whether this proposal to build a church had not been abandoned, and a declaration was now sought that the gift had accordingly failed.

Glasse and De Gex for the plaintiff; Baily and Bristowe for the defendant; Bevir for the executors.

The Vice-Chancellor said that the declaration could not be made at the present stage of the proceedings, but that the common administration decree 'would be made, with special inquiries as to whether the residue consisted of pure personalty, and as to the two gifts in question.

Smedley v. Potter. July 19, 1856.

PARTITION SUIT-LEGAL ESTATE IN DEVISED SHARE -TRUSTEES AND TENANT FOR LIFE-NEXT OF KIN.

A testator devised an estate to certain persons in twelfth parts, and one of such twelfths was again devised by such devisee in trust for his wife for life, with remainder to his next of kin at her death: Held, in a partition suit, that the trustees of the devisee's will and the tenant for life (who now appeared by counsel and consented to the partition) sufficiently represented such devisee's estate, without having any one to represent his next of kin.

In this partition suit, it appeared that the testator devised an estate in twelfths to certain persons, one of whom, Mr. George Marshall, devised his share to trustees in trust for his wife for life, with remainder to his next of kin on her death. Mrs. Marshall now appeared by counsel, and consented to the partition.

The question arose whether the next of kin of Mr. Marshall were sufficiently represented by the trustees under his will.

Teed, Baily, Glasse, Busk, Renshaw, C. Chapman Barber, Giffard, Hawkins, W. Morris, and Nalder for the respective parties.

The Vice-Chancellor said that the legal estate was vested in the trustees of the will of Mr. Marshall, and their appearance, with that of the tenant for life, was sufficient, without having some one to represent the next of kin.

Knight v. Knight. July 22, 1856.

TRANSFER OF FUND FROM SUIT IN ONE BRANCH TO SUIT IN ANOTHER BRANCH OF THE COURT-JURISDICTION-INTERIM INJUNCTION.

An order for the transfer of a fund from a suit in the Vice-Chancellor's Court to one in the Rolls' Court must be made to the Lord Chancellor or Lords Justices, intituled in both suits. Semble, that where an accounting defendant is entitled to a fund in another suit, in a different branch of the Court, the Lord Chancellor or Lords Justices have jurisdiction to direct a transfer to such

other suit.

Until such petition was presented, an injunction was granted to restrain the defendant from dealing with the fund in the meantime.

THIS was a petition for the payment out of court to the sequestrators appointed in a suit at the Rolls of Brotherton v. Knight, of a sum to which Hannah Knight, the accounting defendant in such suit, was entitled in the above suit, or for a transfer of the fund from this to the other suit.

Roberts in support; G. W. Collins contrà.

The Vice-Chancellor said that in the case of Wilson v. Metcalfe, 1 Beav., 263, Lord Langdale had ordered payment by a stranger, who did not dispute the right of the party to the money. Here this court stood in the place of the stranger, and not only did not dispute the right, but had recognised such right by its order. However, as neither this court nor the Rolls Court had jurisdiction to order the transfer of a fund from one suit to the other, a petition must be presented to the Lord Chancellor or Lords Justices, intituled in both suits for that purpose. An injunction would be granted, restraining Hannah Knight from dealing with the fund in the meantime.

Vice-Chancellor Stuart.

Gardiner v. Broadbent. July 17, 1856.

PATENT-INFRINGEMENT INJUNCTION EXPARTE

AFFIDAVIT.

Where the affidavit in support of a motion for an injunction exparte to restrain the infringement of a patent, merely stated the plaintiff's belief that the patent was still good and valid in all respects, without also stating clearly and distinctly his belief that at the time of the motion for the injunction the invention was new, or had never been practised in this kingdom at the date of the patent; the injunction was dissolved with costs, upon affidavits in the defendant's behalf that the alleged invention had been made use of for two or three years prior to the date of the patent. Semble, that the fact of a patent being recent is no ground for refusing an injunction to restrain its infringement.

This was a motion to dissolve an injunction which had been obtained to restrain the infringement by the defendant of a patent purchased by the plaintiff for improvements in cutting the terry or pile of certain textile fabrics used for saddle covers.

The injunction had been obtained exparte upon an affidavit that the plaintiff believed the letters patent were good and valid in all respects.

Malins and P. W. E. Forster for the defendant, in support, upon affidavits that the alleged invention had been used for two or three years prior to the date of the patent, and on the ground of the insufficiency of the affidavit, citing Sturz v. De la Rue, 5 Russ. 322.

Elmsley and G. Lake Russell for the plaintiff contrà.

The Vice-Chancellor said that the affidavit in support of an application for an injunction should state clearly and distinctly that the applicant believed the invention was new at the time of such application, or that it had never been used in this kingdom at the date of the patent. In the present case the affidavit was insufficient, and the injunction must be dissolved with costs. It was not, however, to be understood that the fact of a patent being recent was any ground for refusing an injunction to restrain its infringement.

The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, AUGUST 2, 1856.

RESULTS OF THE SESSION OF PAR- their practical importance to the profession

LIAMENT, 1856.

THE two Houses of Parliament, which were expected to be prorogued on Saturday last, the 26th, assembled on that day, and mutually agreed to various amendments made in several law bills, and adjourned to Tuesday, the 29th July, when the Royal Assent was given by commission to numerous bills for the alteration or amendment of the law, and Parliament was then prorogued nominally till the 7th October.

From the Queen's Speech, which was read by the Lord Chancellor, we extract the following passages, pointing out the four

measures of Law Reform which are the most highly prized by her Majesty's ministers as the result of their legislative labours during the last half-year.

"Her Majesty has given her cordial assent to the act for rendering more effectual the police in counties and boroughs in England and Wales. This act will materially add to the security of person and property, and will thus afford increased encouragement to the exertions of honest industry.

"The act for regulating Joint Stock Companies will afford additional facilities for the advantageous employment of capital, and will thus tend to promote the development of the resources of the country, while the acts passed relative to the mercantile laws of England and of Scotland will diminish the inconvenience which the difference of those laws occasion to her Majesty's subjects engaged in trade.

"Her Majesty has seen with satisfaction that you have given your attention to the arrangements connected with County Courts. It is her Majesty's anxious wish that justice should be attainable by all classes of her subjects, with as much speed, and with as little expense, as may be consistent with the due investigation of the merits of causes to be tried."

We proceed now to enumerate the statutes which have passed in this the 19th and 19th & 20th of her Majesty's reign, placing them under the respective heads-1st, of the Law of Property; 2nd, of the Law and Practice of the Superior Courts; 3rd, of Mercantile Law; 4th, of Criminal Law, Police, Public Health, &c.; 5th, Stamps and Taxes; 6th, Marriages and Parochial Law, &c., 7th, Miscellaneous Acts.

I. THE LAW OF PROPERTY.

they appear to be as follow:

Leases and Sales of Settled Estates, 29th July.*
Drafts on Bankers, June 23rd.
Intestates Personal Estates, 29th July.
Advowsons, 14th July.

Episcopal and Capitular Estates, 29th July.
Drainage Advances, 14th March.
Charities, 29th July.

Commons Inclosure, 11th April.
Commons Inclosure (No. 2), 29th July.
West India Loans, 30th June.
Turnpike Trusts Arrangements, 11th April.
Turnpike Trusts Continuance, 14th July.
Insurance on Lives, 30th June.

Incumbered Estates (Ireland), 21st July.
Deeds (Scotland), 29th July.

Here are no less than fifteen acts more or amongst them are few only which particularly less affecting the Law of Property, but concern the legal practitioners in England. They are, 1st, the Leases and Sales of Settled Estates Act, with the section applicable to Hampstead Heath, and substituting the Court of Chancery for the Parliament in a large class of matters relating to private estates. The parliamentary agents will suffer some loss by in favour of the parties interested in settled this beneficial measure, which will operate estates and their solicitors.†

2nd. The Drafts on Bankers' Act is acceptable, in no small degree, to the members of the profession, through whose hands vast sums of money pass in the course of a year, and the power of limiting the payment of cheques to bankers will afford important security in conveying the money to the right hands.

3rd. The Intestates Personal Estates Act, which abolishes the special customs in the cities of London and York and other places, interfering with the general law in the rest of the kingdom, is also a beneficial measure, tending to effect a uniformity in this branch of the law, and somewhat to relieve the legal adviser from responsibility.

II. COURTS OF LAW AND EQUITY. County Courts, 29th July.

*We give the dates of the Royal Assents, and are unable at present to state the chapter of each act, but which will appear hereafter in the general List of Public and General Acts.

† As a considerable number of parliamentary agents are not qualified as attorneys or solicitors, "THE LEGAL OBSERVER AND SOLICITORS' JOURNAL" cannot be expected to

Placing this class of acts in the order of deplore this change.
VOL. LII. No. 1,482.

P

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Results of the Session of Parliament, 1856.

Evidence in Foreign Suits, 29th July.
Cursitor Baron of the Court of Exchequer, 29th
July.

Court of Exchequer (Scotland), 21st July.
Small Debts Imprisonment (Scotland), 14th July.
Judicial Procedure (Scotland), 29th July.
Bankruptcy (Scotland), 29th July.
Court of Chancery (Ireland), 29th July.
Court of Appeal in Chancery (Ireland), 29th July.
Courts of Common Law (Ireland), 29th July.

Of these ten new statutes, which it will be observed were all passed within the last fortnight of the session, the only one of material importance in this part of the kingdom is the County Court Act, which received the royal assent on Tuesday last. We shall as early as possible lay before our readers the several alterations effected in the jurisdiction and practice of the courts.

It will be observed that four of this class of acts relate to the law and practice in Scotland, and three in Ireland. It may be desirable to notice such parts of those enactments as bear upon professional matters in which English solicitors are occasionally engaged.

III. MERCANTILE LAW.

Joint Stock Companies, 14th July. Mercantile Law Amendment, 29th July. Joint Stock Banks, 29th July. Mercantile Law (Scotland), 21st July. Joint Stock Banks (Scotland), 7th March. The first two of these acts are of great importance to the public as well as the profession. The Joint Stock Companies Act has for the larger part been submitted to our readers, and will be concluded next week. The limited liability sections appear to comprise very satisfactory regulations and safeguards applicable to that class of partnerships, and if in the practical working of the measure defects should be found, they may be readily supplied. The skill and ingenuity of the lawyer will no doubt be exerted in carrying the provisions of the act into effect, and we doubt not that the anticipations of the government, as declared in the Queen's speech, will be satisfactorily realised. Our expectations are not so sanguine of the probable success of the partial assimilation of the Mercantile Laws of England and Scotland. Still, such is the skill and ability of our merchants, that they will soon adapt themselves in their dealings and transactions to the altered state of the law-supplying omissions in the new enactments, and removing difficulties in carrying them into effect.

IV. CRIMINAL LAW, POLICE, PUBLIC
HEALTH, &C.

Police, Counties and Boroughs, 21st July.
Trial of Offences, 11th April.

Criminal Justices, 29th July.

Grand Juries, 14th July.

Lunatic Asylums, 29th July.

Metropolitan Police, 28th February.

Public Health, 23rd June.

Smoke Nuisance, 29th July.

Metropolis Local Management, 29th July.
Pawnbrokers, 23rd June.

Corrupt Practices Prevention, 29th July.
Annual Indemnity, 29th July.

Procedure before Justices (Scotland), 14th July.

In this department of the administration of justice, the speech from the Throne places the Counties and Boroughs Police Act in the foreground; and we trust the improvements which will take place under the authority of this statute will prove satisfactory both to the magistracy and the public. Looking over the list of the thirteen acts which appear to belong to this branch of jurisprudence, we may reasonably hope that whilst property will be better protected and offences better restrained, the public health will be promoted, more especially in this vast and increasing metropolis.

V. STAMPS AND TAXES

Stamp Duties on Articles of Clerkship and Proxies, 29th July.

Annuities, 7th March.
Annuities, 5th June.

Stock in Trade exemption, 7th July.
Duties on Fire Insurances, 5th June.
Banker's Compositions, 5th June.
Income and Land Taxes, 29th July.

The first of these acts relates to the articled clerks of attorneys, enabling the £80 stamp duty to be paid at any period during the clerkship, subject to a penalty and a charge proportioned to the time when the tax may be paid. We say "tax," although we believe the profession do not wish to see it removed, unless it were applied for purIt is remarkable, poses of legal education. however, that attorneys are burthened with a threefold taxation from which other profession are exempt. First, a heavy toll is exacted, in the outset of the young attorneys career (and often diminishing the fee of the skilful practitioner for instruction); at the second step a further stamp of £25 is required; and thirdly, an annual impost of £6 or £9. None of which three taxes are paid by the clerical or medical professions.

The other stamp and tax acts of the late session are above enumerated, though they do not exclusively bear on the legal profession.

VI. MARRIAGE AND PAROCHIAL LAW, &c, Marriage and Registration Acts Amendment, 29th July.

Marriage Law (Scotland), 29th July.
Formation of Parishes, 29th July.
Poor Law (Ireland), 29th July.

On these legislative acts we have at present no material observation to offer. We hope the Dissenters will now be content with the law of marriage, and Lord Brougham is entitled to the thanks of the public for putting an end to Gretna Green Matrimonial Conacts.

The power of amending the limits of parishes

New Statutes effecting Alterations in the Law.

and fixing boundaries, in some degree pro- | portioned to the altered population of various districts, having regard to vested rights and interests, will probably be productive of benefit both to clergy and parishioners.

VII. MISCELLANEOUS.

We have to add only the following acts which do not appear to belong to any of the preceding classes:

Industrial and Provident Societies, 7th July.
Factories, 30th June.

Obsolete Statutes Repeal, 21st July.

House of Commons Officers, 28th February.

We purpose next week to notice the numerous bills which have been under the consideration of Parliament and afterwards withdrawn, negatived, or postponed.

NEW STATUTES EFFECTING ALTERATIONS IN THE LAW.

JOINT STOCK COMPANIES.

19 & 20 Vict. c. 47.

[Continued from page 223.]

Deeds.

42. Any company registered under this act may, by instrument or writing under their common seal, empower any person, either generally or in respect of any specified matters, as their attorney, to execute deeds on their behalf in any place not situate in the United Kingdom; and every deed signed by such attorney, on behalf of the company, and under his seal, shall be binding on the company to the same extent as if it were under the common seal of the company.

43. A promissory note or bill of exchange shall be deemed to have been made, accepted, or endorsed on behalf of any company registered under this act, if made, accepted, or endorsed in the name of the company by any person acting under the express or implied authority of the company.

44. In any mortgage made according to English law by any company registered under this act there shall be implied the following covenants (unless words expressly negativing such implication are contained therein); that is to say, a covenant on the part of the company to pay the money thereby secured, and interest thereon, at the time and rate therein mentioned; a covenant that they have power to convey or assure the property declared to be conveyed or assured to the mortgagee free from incumbrances; and a covenant for further assurance of such property, at the expense of the company, to the mortgagee or any person claiming through, under, or in trust for him; and if a power of sale is thereby given such power shall imply an authority to sell by public auction or private contract, altogether or in parcels, and to make, rescind, or vary contracts for sale or resale without being liable for loss, and also an authority to give effectual receipts for purchase moneys, and such mortgage may be in the form marked H in the schedule hereto, or as near thereto as circumstances admit.

45. In any bond and disposition in security made according to Scotch law by any company registered under this act there shall be implied the following obligations and undertakings (unless words expressly

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negativing such implication are contained therein); that is to say, an obligation on the part of the company to pay the money thereby secured, and interest thereon, at the time and rate therein mentioned; an undertaking that they have power to convey the property declared to be conveyed to the heritable creditor free from incumbrances: and an obligation to make and execute, at the expense of the company, in favour of the heritable creditor, or any person claiming through, under, or in trust for him, any further deed necessary to give effect and validity to the security; and if a power of sale is thereby given, such power shall imply an authority to sell by public auction or private contract, altogether or in parcels. and to make, rescind, or vary contracts of sale or resale, without being liable for loss, and also an authority to give effectual receipts for purchase moneys; and such bond and disposition in security may be in the form marked I in the schedule hereto, or as near thereto as circumstances admit, and shall be registered in the general or particular or burgh register of sasines, as the case may be, and being so registered shall be equivalent to a bond and disposition in security in ordinary form, containing power of sale, with sasine thereon, duly recorded in the register of sasines.

46. In any conveyance or assurance made according to English law by any company registered under this act there shall be implied (unless words expressly negativing such implication are contained therein) the following covenants on the part of the company: (that is to say)

A covenant that, notwithstanding any act or default done by the company, they were at the time of the execution of such conveyance or assurance seised or possessed of the lands or premises thereby conveyed or assured for an indefeasible estate of inheritance in fee simple, free from incumbrances occasioned by them, or otherwise for such estate or interest as therein expressed to be assured, free from incumbrances occasioned by them;

A covenant that the person to whom such lands or premises are conveyed or assured, his heirs, successors, executors, administrators, and assigns (as the case may be), shall quietly enjoy the same against the company and their successors, and all other persons claiming under them, and be indemnified and saved harmless by the company and their successors from all incumbrances occasioned by the company;

A covenant for further assurance of such lands or premises at the expense of the person to whom the same are conveyed or assured, his heirs, successors, executors, administrators, or assigns (as the case may be), by the company or their successors, and all other persons claiming under them.

47. In any disposition of heritable property granted according to Scotch law by any company registered under this act there shall be implied, unless words expressly excluding such implication are contained therein, an obligation of absolute warrandice, and an obligation to complete the company's title at its own expense so far as necessary to validate or give full effect to such disposition, and an obligation to grant also at its own expense any further deeds which may be necessary to render such disposition effectual.

Examination of Affairs of Company.

48. Upon the application of one fifth in number and value of the shareholders of any company regis

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