Page images
PDF
EPUB

$28

The Recorder of Hull-Correspondence.-County Palatine Chancery Bill, ✅

[merged small][ocr errors][merged small][merged small]

THE Hull Advertiser (a liberal paper) of the 15th instant, observes, that "The boy Regan. whose case gave the noble Secretary of State so much trouble a few months ago, was again tried before the learned Recorder of this boro gh, on Monday last (the 10th July), and having for the fourth time been found guilty of felony, was mercifully sentenced to four years' penal servitude. We do not believe that the Recorder ever appeared to more advantage upon the Bench than while trying and passing sentence upon this incorrigible lad. He spoke of the conduct of those who had addressed the Secretary of State as influenced by the promptings of a generous humanity; and he pointed out to the boy the ingratitude of which he was guilty in rendering himself unworthy of an interference so kind, and as regarded the Crown so successful. But it was the Re corder's account of what he himself had 'privately done to reclaim the lad, which told with such touching effect upon the audience. The Recorder had himself been the first to extend mercy to the lad, and to put him in the way of reforming, if moral reformation in Hull had been possible. He now felt it to be his duty wisely to remove him from the scene of so much temptation; and he discharged that duty with a dignity, a decorum, and in a spirit of kindness towards those who addressed the Se cretary of State on that occasion, which will be long remembered to his credit."

SELECTIONS FROM CORRE-
SPONDENCE.

[merged small][ocr errors]

THE clauses in this Bill giving jurisdiction to the Lords Justices to hear Appeals, are doubtless beneficial; but the power of compelling the appearance in this local Court of persons residing in London or Cornwall, or elsewhere, is very objectionable. Why should the County of Lancaster possess a Court of Equity, whilst Yorkshire and all other counties are denied a similar privilege? Why should executors, trustees, legatees, creditors, infants, and others, be required to appear in person or by unknown agents at Preston, or elsewhere, when the business can be more conveniently, expeditiously, and cheaply transacted in London? Even in the County Palatine itself, the suitors and their solicitors can in general more readily communicate with their London agents (to whom they are writing daily) than to their Preston correspondents.

The advantages proposed by the Bill are confined to the officers of the Palatine Court and the practitioners residing at Preston, at the expense and inconvenience of all the suitors, witnesses, and solicitors who do not belong to that locality. We conceive, that at Liverpool and Manchester, it would be preferable to conduct the business in London, where the leading solicitors of Lancashire, as well as their clients, have so frequently occasion to

resort.

COPYHOLDS.-NON-APPEARANCE OF HEIR.

THE tenant by copy of Court Roll dies; the usual presentment of death is made at the Court, and three proclamations for the customary heir, &c., to come in and be admitted; -but no one claiming adinission can the lord in such case, or his steward, issue a warrant to the bailiff to seize or must the lord bring ejectment?

R.

NOTES OF THE WEEK,

NEW QUEEN'S COUNSEL. Peter Erle, Esq., and Edmund Beckett Denison, Esq., of the Chancery Bar, and Thomas Phinn, Esq., and Robert Porrett Col lier, Esq., of the Common Law Bar, have been sworn in before the Lord Chancellor as Queen's Counsel; the two last-mentioned gentlemen with patents of precedence.

STAMP DUTIES BILL.-COUNTERPARTS. By the 16 & 17 Vict. c. 63, an ad valorem Mr. Erie was called to the Bar by the Hoduty was imposed on conveyances, in conside-nourable Society of the Middle Temple on ration of a year y rent charge, &c., but the Act June 1, 1821, and received his appointment does not provide for the stamps on the dupli-as Chief Commissioner under the Charitable cates of such conveyances. Can any of your Trusts' Act, in October, 1853. readers inform me whether anything is being done this session to remedy such omission? J. S. The Bill now before the House appears to supply this decct.-Ep.

Mr. Denison is M.P. for the Yorkshire West Riding, and was called to the Bar at Lincoln's Inn, November 22, 1841.

Mr. Phinn was called to the Bar at the Inner Temple, November 20, 1840, was appointed] Recorder of Portsmouth in July, 1848, and transferred to Devonport in December, 1851.

229

Notes of Week.Superior Courts: Lord Chancellor.-Lords Justices.-Rolls. He was first returned for Bath in July, 1852, papers for the use of the Court to the proper and is still the M.P. for that city. Mr. Collier was called to the Bar at the officer, and he felt it his duty for the future to Inner Temple, January 27, 1843, and is Re-act on the Order of the 3rd April, 1828, which corder of Penzance. He has represented Ply-empowered the Court to make the solicitors mouth since July, 1852. neglecting to deliver the papers pay personally the costs occasioned by such neglect.

COLONIAL LAW APPOINTMENT.

George Smoult Fagan, Esq., Barrister-at- APPOINTMENT OF LECTURERS AT THE INLaw, has been appointed senior magistrate at Calcutta.

NEGLECT IN DELIVERING COURT PAPERS. The Vice-Chancellor Stuart intimated that much inconvenience and loss of time resulted from the neglect of solicitors to deliver the

CORPORATED LAW SOCIETY.

Mr. Archer Shee has been appointed Lecturer for the ensuing year, on Equity and Bankruptcy; and Mr. Charles Pollock on Common Law and Criminal Law.

The Lectures will probably commence on Friday, the 3rd November.

RECENT DECISIONS IN THE SUPERIOR COURTS.

ww

Lord Chancellor.

Exparte Pope, July 15, 1854.

CORONER.-WHERE ELECTION VOID.-TAK

ING RETURN OFF FILE.

On the election of a coroner certain votes were decared insufficient for want of qualification by the Court of Queen's Bench, and a new writ issued for the election of a coroner: An order was made on motion to take the return of the coroner who had been elected by reason of such votes off the file, with liberty to the sheriff to make a fresh return, but a declaration that the other competing candidate was coroner without a fresh election was refused.

It appeared that on the election taking place to the office of coroner for the district of Heinel Hempstead, Herefordshire, Mr. Pope was in a minority in consequence of the votes polled on behalf of the other candidate, Mr. Frederick Day, of about 70 persons, who claimed to vote in respect of their right of pasturage over cert in waste land at Boxmoor, which had been held insufficient by the Court of Queen's Bench (reported ante, p. 110), and that the undersheriff had refused the scrutiny demanded. A new writ for the election of a coroner having issued,

[blocks in formation]

Tripp now applied for a declaration that Mr. Pope was coroner without a fresh election. The Lord Chancellor ordered the return of Mr. Day, as coroner, to be taken off the file, with liberty to the sheriff to make a fresh re-to turn, the writ in the meantime to be suspended, but said that the declaration asked could not be made.

[blocks in formation]

EVIDENCE OF

The testator and his wife were swept off the deck of a vessel at the same time, and were not seen to rise afterwards, but their daughter was a short time after seen by a sailor, who gave evidence thereof in a suit by her representative: Held, that the death of the testator and his wife must be presumed to be simultaneous, and that the plaintiff was entitled as against the defendant, to whom there was, under the wife's will, a gift over, in the event of the testator survicing herse'f, and who, under the testator's will, took upon the death of both and of their children.

THE testator, Mr. Underwood, by his will, dated in October, 1853, gave all his property his wife for life, in case she survived him, and afterwards to their children, with a gift over to the defendant (whom he appointed his executor) absolutely, upon her previous death, and none of the children attaining 21, or if a daughter marrying. Mrs. Underwood had also, on the same day made a will, under a if he survived her, with a gitt over to the depower, whereby she appointed to her husband, fendant, in case her husband died before her. It appeared that they embarked in the Dal

230

Superior Courts: Rolls.-V. C. Kindersley.

housie for the purpose of proceeding to Aus-other Judges) said, that examiners were bound tralia, and that they were drowned when it was to take down the depositions in their own wrecked off Beechy Head. One of the sailors handwriting, but that in the present case, as gave evidence that when the ship was struck the parties had acquiesced in what had been the testator and his wife, together with two of done, the depositions would be filed. his children, were standing together and were all swept into the sea, and were not afterwards seen to rise to the surface, and that their other daughter, Catherine, was a short time after seen by him struggling in the water, and was lashed by himself and another seaman to a spar. The plaintiff, as personal representative of this daughter, who also perished, claimed the property as against the defendant.

R. Palmer and Prendergast for the plaintiff; Roupell and Baggallay for the defendant.

The Master of the Rolls said, that the death of the testator and his wife must be presumed to have been simultaneous, and that the gift over to the defendant, upon survivorship, did not take effect, and the property, therefore, went to the plaintiff as next of kin and personal representative of the daughter.

[blocks in formation]

Held, that a special examiner, under the 15 & 16 Vict. c. 86, s. 32, is bound to take down the depositions in his own handwriting, and that it is insufficient when in that of his clerk, although signed by the witnesses and the examiner, but where the parties had acquiesced in what had taken place, the depositions were, under the circumstances, ordered to be filed.

THIS was an application for a direction to the Clerk of Records and Writs to file certain depositions taken before a special examiner, under the 15 & 16 Vict. c. 86, s. 32,' although not in the hand-writing of the examiner but of his clerk. It appeared that they were signed by the witnesses and also by the examiner.

J. Hinde Palmer and Bagshawe, jun., for the respective parties.

The Vice-Chancellor (after consulting the

Which enacts, that "the depositions taken down upon any such oral examination as aforesaid shall be taken down in writing by the examiner, not ordinarily by question and answer, but in the form of a narrative, and when completed shall be read over to the witness, and signed by him in the presence of the parties, or such of them as may think fit to attend provided always, that in case the witness shall refuse to sign the said depositions, then the examiner shall sign the same," &c.; and by s. 34, "When the examination of witnesses before any examiner shall have been concluded, the original depositions, authenticated by the signature of such examiner, shall be transmitted by him to the Record Office of the said Court to be there filed."

In re Rose's Settlement. July 14, 1854.
CONSTRUCTION. DIVIDENDS AC-
CRUING DUE WITHIN YEAR.

WILL.

The testator, by his will, in pursuance of a power of appointment under his wife's will, appointed a sum of 2,000l. among his ne phews and niece equally, the share of such as should at his death have attained 21 to be paid within 12 months next after the same should happen without the interest and dividends due thereon, and the share of such as should not have then attained 21 to be paid on attaining that age or mar riage, provided neither happened within 12 months next after his death; and in that case within 12 months next thereafter: Held, that the dividends accruing due during the 12 months after the tes tator's death on the shares of the adult children went to the regiduary legatee. THE testator, by his will, dated in July, 1851, in pursuance of a power of appointment under his wife's will, gave 2,000l., equally, unto and among his nephews and niece nominatim, share and share alike, and directed that the share or shares of such one or more of them as should at the time of his decease have attained the age of 21 years should be paid or transferred to him or her within 12 months next after the same should happen, without the interest or dividends due thereon, and the share or shares of such one or more of them as should not have then attained that age should be paid to them on their attaining that age, and the share of his niece on her attaining that age or marriage, provided neither of those events happened within 12 months next thereafter. Then followed a clause of survivorship, and a gift of the residue to Mr. Gray, his executor. The fund was paid into Court under the 10 & 11 Vict. c. 96, and this petition was presented on the question whether the dividends accruing due within 12 months after the testator's death fell into the residue or not.

Tripp for the legatees; Wickens for the residuary legatee; Elderton and Giffard for other parties.

The Vice-Chancellor said, the testator's intention was, that the dividends should not go to them, but to the residuary legatee, and that if any of them attained 21 within the 12 months, the transfer would not be made until 12 months after the testator's death.

Stock v. Whitmore. July 17, 1854. ADMINISTRATION SUIT, COSTS OF TESTA= MENTARY EXPENSES.-CONVERTING REAL ESTATE.

Held, that the costs of an administration sail

[ocr errors]
[ocr errors]

Superior Courts V. C.Kindersley V. C Stuart.-V. C. Wood.

231

are not included in "testamentary ex- in support; Bacon and Shebbeare for the next penses," to which the whole of the testator's of kin; Goodeve for the executor of the will. property, consisting of personal, mixed, and The Vice-Chancellor said, that the rule of real estate was made liable, and that they law which presumes the death of a person who were payable by the several parties benefited had not been heard of for seven or more years by the estate being administered. was subject to exception, where, as in the preHeld, also, that the costs of converting real sent case, it was unlikely the party missing estate fall exclusively on such real estate. would have had communication with her THE testator, by bis will, gave the residue friends or relatives. It appeared she had of his property, which consisted of personal, quarrelled with her family and become a mixed, and real estate, after payment of his Roman Catholic, and there must therefore be debts, funeral and testamentary expenses, and further inquiries directed. legacies, as therein directed, and he subjected the whole of his property to the payment of specific debts and legacies. It appeared that a suit had been instituted to administer the estite, and the matter now came on upon the question, whether the costs were testamentary expenses and payable out of the residue.

Feed, Baily, Glasse, Tenison Edwards, Greene, and Jones, for the several parties.

The Vice-Chancellor said, that the costs of the suit were not included in the testamentary expenses, and were to be borne by the several parties benefited by the estate being administered. The expenses, however, of converting the real estate must fall exclusively on the real

estate.

Bice-Chancellor Stuart.

Bouden v. Henderson. July 17, 1854.

LEGATEE. PRESUMPTION OF DEATH.
EVIDENCE.

Where a person entitled to a share in a le-
gacy had not been heard of since Feb. 1835,
when she was living in France, although in-
quiries had been made and an advertise-
ment inserted in La Presse, but it appeared
that she had quarrelled with her friends and
had become a Roman Catholic, and it was
unlikely she should again communicate with
her friends or relatives: Held, that the
rule of law presuming her death was inap-
plicable under the circumstances, and
further inquiries were directed.

THE testatrix, by her will, dated in May, 1834, gave a sum of 1,7001. stock in trust for the five children of Mr. Joseph Langton, in equal shares, and appointed her sister Sarah Walker, of whom the plaintiff in this suit was the legal personal representative, her residuary legatee. It appeared that one of the children, Letitia, had parted from her family and left England for France about the year 1828, and had, after residing for a short while at Calais, gone to Paris as a governess. She had written in February, 1835, to a relative in this country, stating she had become a Roman Catholic, and was going to take another situation as gover ness and housekeeper to a Mons. Bonboutier ; but, although inquiries had been made after her, and an advertisement inserted in La Prassa,shes could not be heard of, and the plaintiff accordingly claimed the share in the fund to which she was entitled. Elagley and JD Lewis, for the plaintiff,

[ocr errors]

Waters v. Waters. July 18, 1854.

SUIT BY DEVISEE AND SOLE EXECUTOR
AGAINST HEIR-AT-LAW. ISSUE AS TO
TESTATOR'S SANITY.-COSTS.

An issue had been directed in an administration
suit by the devisee and sole acting executor of
a testator against the heir-at-law and parties
beneficially interested to a Court of Law,
at the instance of the heir, as to the sanity
of the testator, but the will was established,
and an application for a new trial had been
refused with costs: Held, that as the heir-
at-law had not raised the question of sanity
improperly or dishonestly, he was entitled
to his ordinary costs of suit, including
those at law.

In this administration suit by the devisee and sole acting executor of a testator against the heir-at-law and parties beneficially interested, an issue had been directed to a Court of Law, at the instance of the heir, as to the sanity of the testator. The will was, however, established, and an application for a new trial had been refused, with costs (reported 2 De G. & S. 591). The question now came on upon further directions and costs.

Hallett, for the plaintiff, cited Berney v. Eyre, 3 Atk. 387, and contended the heir was not entitled to the costs of the issue.

Osborne and B. L. Chapman for other parties.

The Vice-Chancellor said, that as the heir-atlaw had not raised the issue of the testator's

sanity improperly or dishonestly, he was entitled to the ordinary costs of suit as between party and party, including the costs at law.

[merged small][merged small][merged small][ocr errors][merged small][ocr errors]
[ocr errors]

232

Superior Courts: Vice-Chancellor Wood.

Rolt, Rudall and Hooper, for other parties;
Wickens for the Attorney-General.

The Vice-Chancellor said, that in accordance with the decision of Attorney-General v. Ruper, 2 P. Wmns. 125, the money must be paid to the trustees of the chapel and not to the minister, for the purposes of repairing the same.

Martin v. Wellstead. July 17, 1854.

CHARITABLE BEQUEST.--VALIDITY OF.-
MORTMAIN ACT.

Thirtle v. Vaughan. July 17, 1854.

GENERAL DEVISE OF REAL ESTATE.
LAND CONTRACTED TO BE SOLD BY TES-
TATOR.

A testator devised all his real estates to his
three children, as tenants in common, with
a gift over to other parties, in case any of
them died under 21 without issue: Held,
that an estate which the testator had con-
tracted during his lifetime to sell to the
defendant was not included in the devise
but descended to the heir-at-law.

Gift of a sum of money to trustees in trust to THIS was a claim on behalf of the executors invest in the public funds or on real secu of a deceased vendor, for the specific performrity, and to pay the dividends or interest ance of a contract for the sale of certain land in such manner as they should think to the defendant, who had accepted the title. fit amongst poor persons of a town, and It appeared that the vendor had, by his will, after the death of the survivor of the devised all his real estate to his three children, trustees, then to the corporation of the as tenants in common, with a gift over, in case town as trustees, to be applied in a like any of them should die under 21 without leavmanner, and with power to the trustees to ing issue, of the respective estates, interests, apply the capital and interest for or to- and shares to which such child or children so wards establishing or promoting any alms- dying would otherwise have been entitled, and houses or other permanent establishment of any accruing share or interest therein, to for the relief or assistance of the poor of certain parties therein named as tenants in the town, and the testator desired that they common. It appeared that there were two should commence building such almshouses as children, both infants, one of whom was heirsoon as they conveniently could after his de-at-law, and this claim was necessary on the cease: Held, that the trust was within the question, whether the trust property passed to operation of the Mortmain Act, and was the devisees under the will, or descended to therefore void.

THE testator by his will gave a sum of 4001. to trustees, in trust to invest the same in the public funds or real security, and to pay the dividends and interest thereon in such mauner as they might think fit amongst poor persons of Rye deserving of the same, and after the death of the survivor of such trustees he gave the said sum and the securities on which it might be invested to the Mayor, &c., of the town (whom he appointed trustees) to apply the dividends and interest thereon in the like manner. The will also contained a power to the trustees to apply as well the capital as the interest of the legacy for or towards establishing or promoting any almshouses or such permanent establishment for the relief or assistance of the decayed or other poor persons of the town as the trustees might think advisable to establish or promote, and he desired them to commence building such almshouses as soon as they conveniently could after his decease. This bill was filed by the infant siduary legatees claiming the legacy as void under the Mortmain Act.

the heir-at-law.

Murray for the plaintiffs; Pearson and Babington for other parties.

The Vice Chancellor said, that the words of the will referred to the beneficial and not to the trust estates, which, therefore, descended to the heir, and in whom the legal estate vested.

Griffiths v. Hatchard. July 18, 1854. CONDITION OF SALE AS TO TITLE DEEDS.

-PURCHASER OF LARGEST LOT.

One of the conditions of sale on putting up an estate to auction in lots was, that the titledeeds should be given up to the purchaser of the largest lot: Held, that it referred only to the lots consisting of land and not to the ground-rents, and that the plaintiff, as the purchaser of the largest lot in acreage, was entitled to have the deeds.

Ir appeared, from this special case for the re-opinion of the Court, that upon an estate in the Isle of Wight being put up for sale by auction, in lots, the 8th condition provided, that the purchaser of the largest lot should have the custody of the title-deeds, entering into the usual covenant for their production to the other purchasers.

Rolt and Durt for the plaintiff; Pitman for the executors; W. D. Lewis for the Mayor, &c., of Rye; Wickens for the Attorney-General.

The Vice-Chancellor said, that the true construction of the will was that the trustees were to invest the fund until they could find a suitable plot of ground on which to build almshouses, when they were to build the same, and the trust was therefore within the operation of the Statute and was void.

Moxon for the plaintiff; Pearson for the defendant.

The Vice-Chancellor said, that the condition did not apply to the ground-rents, of which some of the lots consisted, and that the plaintiff, who was the purchaser of the lot largest in acreage, was entitled to the deeds.

[merged small][ocr errors]
« EelmineJätka »