Eng. Rep.] IN RE NEWMAN-DIGEST OF ENGLISH LAW REPORTS. taxed," every facility should be offered. On the 4th of January it is sald, "I will pay you the full amount if you like, but let us have taxation." When the matter comes to a close within a few days, and the party who is liable to pay is willing to pay the whole amount at once, provided the right of taxation be reserved, I think it is a special circumstance which would justify the Court in directing taxation, if when on looking at the bill of costs it substantially requires it. [His Lordship then mentioned a single item of charge, and said that without imputing any improper conduct, he should say it was a matter which justified taxation.] As to costs, there was the right to taxation, but there was an objection taken, and if the ob'jection taken, and if the objection be not absolutely frivolous, the rule is to let the costs of the hearing abide the result of the taxation. There is no rule that the costs shall abide the result of the taxation, where overcharge is the only ground of complaint. I think here there was mistake on the one side as to the right to tax, and that there was more required on the other than could be sustained. Upon the whole, I think justice will be done by letting the whole costs abide the result of the taxation in the usual manner. As to the costs of the appeal, considering that the main point brought from the Master of the Rolls is the question whether there should be taxation or not, I think it will not be unjust to let the costs of the appeal also abide the result of the taxation. Except in these particulars the order will be made by the Master of the Rolls. DIGEST. DIGEST OF ENGLISH LAW REPORTS. FOR THE MONTHS OF FEBRUARY, MARCH AND APRIL, 1867. (Continued from page 251.) ACCOUNT.-See EQUITY PLEADING AND PRACTICE, 3. ADMINISTRATION. 1. If one of the next of kin has received his share of his intestate's estate, the others cannot call on him to refund, if the estate is subsequently wasted; and the burden of proof lies on those calling on him to refund, to show that the wasting took place before the share was paid.-Peterson v. Peterson, Law Rep. 3 Eq. 111. 2. Administration was granted to a creditor, though his right of action was barred by the Statute of Limitations, on condition that he gave a bond to distribute the assets pro rata among all the creditors.-Coombs v. Coombs, Law Rep. 1 P. & D. 288. 3. A married woman, separated from her husband, and having obtained a protection order, died, leaving him a minor son. Admin. istration was granted to a guardian elected by the son, security being given, without citing the father.-Goods of Stephenson, Law Rep. 1 P. & D. 287. 4. The consent of next of kin, who are minors, and some of tender years, does not justify making a joint grant of administration, in the absence of special circumstances. —Goods of Newbold, Law Rep. 1 P. & D. 285. See EXECUTOR; PROBATE PRACTICE. 1. If an appeal has not been taken within the prescribed time, the court will be guided in the exercise of its discretion, in allowing or refus ing the appeal, by the special circumstances of each case.-Kelner v. Baxter, Law Rep. 2 C. P. 174. 2. Under the 21 & 22 Vic. c. 27, § 3, an order by the Lord Chancellor, confirming an order of a vice chancellor, on his own findings, upon a trial without a jury, is the subject of appeal to the House of Lords.-Curtis v. Platt, Law Rep. 1 H. L. 337. 3. If the court of appeal reverses the decree of the court below, and dismisses the bill with costs, the costs of the appeal will generally be given.-Phillips v. Hudson, Law R. 2 Ch. 243. See NEW TRIAL, 1, 3; REHEARING, APPRENTICE. A deed of apprenticeship provided, that, if the apprentice's health should fail before the 1st of August, 1866, the master should refund to the father £50 of the premium, and that a medical certificate should be conclusive evidence of the failure of health. The health of the apprentice failed, and he died in August, 1865. In March, 1866, a proper medical certificate was sent to the master, dated March 24, 1866, but referring to the health of the apprentice in June, 1865. Held, a sufficient compliance with the condition.-Derby v. Humber, Law Rep. 2 C. P. 247. ARBITRATOR.-See AWARD. ASSIGNEE.-See LEASE, 7. ATTORNEY,See SOLICITOR. WARD. 1. Arbitrators appointed under a submission, which was made a rule of the court of Chancery, having made their award after the time specified, that court, under 3 & 4 Wm. IV. c. 42, 39, and the Common Law Procedure Act 1854, 8, may enlarge the time, and remit the matter back to the arbitrators.-In re Warner & Powell's Arbitration, Law Rep. 3 Eq. 261. DIGEST OF ENGLISH LAW REPORTS. 2. A testator gave his children in succession an option to purchase a certain estate, at a price to be fixed by an award of arbitrators; the time for exercising the option was two months, within which time the child purchasing was to make such an agreement for completion as the arbitrators should approve. The award was left, on May 5, in the office of the solicitor of the testator's family, who also acted for the eldest son. The solicitor, on May , informed the eldest son of the price. The son, on June 16, wrote that he elected to take the estate, and, on July 6, signed an agreement, approved by the arbitrators, and shortly after completed the purchase. The son having sold the estate, and filed a bill for specific performance, held, that the title was marketable, because the formal agreement was signed within two months after the award was communicated to the son by the solicitor, before which time the son was not to be deemed to have had knowledge of it. Semble, also that the option was effectually exercised by the letter of June 16.-Austin v. Tawney, Law Rep. 2 Ch. 143. See VENDOR AND PURCHASER, 3. In an action by the indorsee of a bill against the acceptor, a plea that the bill has been satisfied by the drawer is not good, unless it shows that the plaintiff is not the lawful holder of the bill. In such an action, a plea that the bill was given for goods to be supplied by the drawer, that only part of the goods were supplied, of which the defendant accepted a part, and that, by the non-completion of the contract, the part supplied became valueless to the defendant, and also that the plaintiff is not a holder for value, is good, provided the value of the goods accepted is shown to be a definite sum.-Agra & Masterman's Bank v. Leighton, L. Rep. 2 Ex. 56. CARRIER.-See SHIP, 4. CHARTER-PARTY.-See FREIGHT, 1; Stup, 4. COMPANY. 1. A. gave money to directors as deposit money for shares in their proposed company: they formed the company for more extensive purposes than those proposed, and A. had on that ground obtained from the court an order that he should be struck off the list of shareholders. Held, that he could maintain a bill in equity (not alleging fraud) for the deposit money, neither against the company, nor the directors: not against the company, because the money in their hands was not impressed with a trust; not against the directors, because relief in such a case of excess of authority must be at law. Stewart v. Austin, Law Rep. 3 Eq. 299. 2. A subscriber for shares in a company cannot be relieved from his contract, because, after his application, and before allotment, a change has taken place in the direction not communicated to him.-Hallows v. Fernie, Law Rep. 3 Eq. 520. 3. After appointment of a receiver of a railway, made in a 'suit on behalf of debenture holders, a debenture holder recovered judg ment, and petitioned for leave to issue execution. Held, that he was not entitled to execution otherwise than as trustee for all debenture holders entitled to be paid pari pasu with himself; but an inquiry was directed whether it would be for the benefit of the debenture holders that the receiver should take any proceedings to make the judgment available for them. -Bowen v. Brecon Railway Co., Law Rep. 3 Eq. 541. See DIRECTORS; INJUNCTION, 1; PRINCIPAL AND AGENT, 2, 6; RAILWAY; SPECIFIC PERFORMANCE, 4; WITNESS, 2. CONDITION PRECEDENT.-See LEASE, 2. A., a nephew of a former trustee of E., being sent by his uncle to advise B., who was twentythree years old, and of extravagant habits, on the settlement of his debts, and to advance him money for that purpose, offered to give him £7,000 for his estate, under which there were coal mines. Pending the negotiations, in which a separate solicitor was employed for B., A. obtained from C., a mining engineer, a valuation of the minerals under the estate at £10,000, which he did not communicate to B.; nor did he suggest to B. to consult a mineral surveyor. B. accepted A.'s offer, and died before conveyance. Held, on a bill by B.'s administrator, that the sale to A. should be set aside.-Tate v. Williamson, Law Rep. 2 Ch. 55. CONFLICT OF LAWS.-See FOREIGN COURT. CONSIDERATION.-See BILLS AND NOTES; CONTRACT. CONTEMPT. 1. A colonial house of assembly has not, by analogy to the houses of parliament in England, or to a court of justice, which is a court of record, any power to punish a contempt, though committed in its presence and by one of its members; and a member imprisoned for such contempt has his action against the speaker and members of the house for false imprisonment.-Doyle v. Falconer, Law Rep. 1 P. C. 328. DIGEST OF ENGLISH LAW REPORTS. 2. A., being an attorney and barrister of the supreme court of Nova Scotia, addressed a letter to the chief justice, reflecting on the administration of justice by the court. The letter was written by A. in his private capacity as a suitor, in respect of a supposed grievance as a suitor, and had no connection with anything done by him professionally. The court ordered A. to be suspended from practising in the court. Held, that, though the letter was a contempt of court, and punishable by fine and imprisonment, yet that the court could not inflict a professional punishment of indefinite suspension for an act not done professionally, and which, per se, did not render A. unfit to remain a practitioner of the court. In re Wallace, Law Rep. 1 P. C. 283. CONTRACT. 1. A promise to conduct proceedings in bankruptcy so as to injure as little as possible the debtor's credit, is not a good consideration for a contract.-Bracewell v. Williams, Law Rep. 2 C. P. 196. 2. A promise not to apply for costs under the Bankruptcy Act, 1849, § 85, is a sufficient consideration to support a contract to pay the amount of such costs.-Bracewell v. Williams, Law Rep. 2 C. P. 196. 3. A. died in 1831, owning estates of socage and borough English tenure, and also personal property, and leaving a wife and two sons. He made an incomplete will, leaving his property to his sons equally. Soon after the will had been refused probate, the elder brother declared that the invalidity of the will should make no difference, and that the property should be "not mine or thine, but ours." No written agreement was made, but the widow never insisted on her rights, and the two sons dealt with the whole property as if it belonged to them equally, till 1851, when their partnership was dissolved; the younger brother having died, and a bill having been filed by his representatives for an equal division of the property. Held, that there was sufficient evidence of a family arrangement, which the court would uphold, though there was no formal contract, and no rights in dispute, and that, sufficient motive being proved, the court would not consider the amount of consideration.— Williams v. Williams, Law Rep. 2 Ch. 294. See BILLS AND NOTES; CONVERSION; DIRECTORS, 2; FRAUDS, STATUTE OF; PRINCIPAL AND AGENT, 1, 2, 6, 7; SALE; SPECIFIC PERFORM ANCE. CONVERSION. A. contracted with a builder to erect a house on A.'s land, and died intestate before the house was finished. Held, that A.'s heir was entitled to have the house finished at the expense of the personal estate.-Cooper v. Jarman, Law Rep. 3 Eq. 98. COPYRIGHT. H., in 1863, registered an intended new magazine, to be called "Belgravia." In 1866, M., not knowing this, projected a magazine with the same name, and incurred expense in preparing and advertising it as about to appear in October. H., knowing of this, made hasty preparations to bring out his own magazine before M.'s could appear, and in the mean time accepted an order from M. for advertising M.'s magazine in his own publications. On September 25, the first number of H.'s maga zine appeared, and on that day he first informed M. that he objected to his publishing a maga zine under that name. M.'s magazine appeared in October. H. and M. each filed a bill to restrain the other from using the name. Held that neither bill could be maintained.-Maxwell v. Hogg, Law Rep. 2 Ch. 307. COSTS. - See APPEAL, 3; CONTRACT, 2; EQUITY PLEADING AND PRACTICE, 6, 7; EXECUTION; SET-OFF; VEXATIOUS ACTION. COVENANT. 1. A covenant against building, entered into by a purchaser of land with the vendor (the owner of adjoining lands), for the benefit of said adjoining lands, binds in equity those taking under such purchaser with notice, and may be enforced by a subsequent purchaser of part of such adjoining lands, who would be damaged by its breach, though he has overlooked small breaches of similar covenants by other owners, and has himself committed a small breach of a similar covenant, and though all persons entitled to the benefit of the covenant are not joined as parties: whether the covenant runs with the land, quære.—Western v. Macdermott, Law Rep. 2 Ch. 72. 2. A vendor having taken from each of several purchasers of land, formerly the same estate, a covenant to build only in a certain manner, permitted material breaches of the covenant by some of the purchasers. Held, that he could not have an injunction to compel another purchaser to observe the same covenant, though the cevenant was not only by the defendant with the vendor, but also by the defendant with all the other purchasers, and though the breaches had been committed before the defendant purchased or made his covenant. -Peek v. Matthews, Law Rep. 3 Eq. 515. 3. A. demised the exclusive right to take game on certain land, with the use of a cottage, DIGEST OF ENGLISH LAW REPORTS. to B. for a term; and B, covenanted to leave the land, at the end of the term, as well stocked with game as at the time of the demise. Held, that the right to sue on this covenant passed, by 32 Hen. VIII. c. 34, to the assignee of A.'s reversion.-Hooper v. Clark, Law Rep. 2 Q. B. 200. 4. A. covenanted that he, in his lifetime, or his heirs, executors or administrators, within three months after his death, would pay a certain sum. He died, having devised real estate to trustees, who refused to accept the devise, and, under order of the court, conveyed the estate to new trustees. Held, that an action of debt would lie against the trustees under the will and the heir, by the statute against fraudulent devises, 3 W. & M. c. 14, § 3; and execution would thus be obtained against the land, and the conveyance to new trustees was not such an alienation as would prevent the action. -Coope v. Creswell, Law Rep, 2 Ch. 112. See ELECTION, 2; LEASE, 1-5. CURTESY.-See HUSBAND AND WIFE, 1. A custom for inhabitants of a parish to exercise horses at all seasonable times, in a place beyond the limits of the parish, is bad.-Sowerby v. Coleman, Law Rep. 2 Ex. 96. See FREIGHT, 1; PRINCIPAL AND AGENT, 1, 4, 5. DAMAGES.-See LEASE, 3; LIGHT, 2; PATENT, 6; SET-OFF; SPECIFIC PERFORMANCE, 4. DEPOSITION.-See EXTRADITION. DEVISE. See COVENANT, 4; ELECTION; WILL, DIRECTORS. 1. On a bill filed by the official liquidator of a company against its late directors, alleging that a transaction by them was ultra vires of the company, and had been concealed by false descriptions in the company's books, held, on demurrer, that whether the transaction was ultra vires or not, the charges as to concealment must be answered.--Joint Stock Discount Co. v. Brown, Law Rep. 3 Eq. 139. 2. The prescribed quorum of directors in a company being three, the secretary affixed the company's seal to a bond, after having obtained the written authority of two directors at a private interview, and at another private interview the verbal promise of a third to sign the authority. Held, that directors acting under 8 Vic. c. 16, must act together and as a board; that the seal was affixed without authority, and the company was not liable on the bond.— D'Arcy v. Tamar, Kit Hill & Callington Railway Co., Law Rep. 2 Ex. 158. DOMICIL-See FOREIGN COURT. 1. A testator, after reciting that his two daughters, A. and B., would be entitled to property under a settlement, and that therefore he had not devised them so large a share as he otherwise should have done, devised to A. and B. certain estates, and to his two other daughters, C. and D., estates of much more value. In fact, the four daughters were entitled equally under the settlement. Held, that as the will did not purport to dispose of the settled property, and was only made under a mistaken impression, C. and I). were not put to their election.-Box v. Barrett, Law Rep. 3 Eq. 244. 2. A father, on his son's marriage, covenanted that he would, by will or in his lifetime, give one-fifth of the estate, to which he might be entitled at his death (subject to the payment of one-fifth of his debts), to trustees, on trust to pay the income to the son, till some event should occur whereby the income would (if the same were payable to the son absolutely) become vested in some other person; and then on trust for the son's wife and children, with a discretionary trust for the benefit of the son after his wife's death. By will the father charged his estate with his debts, and gave his estate to all his children who should be living at his death. He died, leaving five children. Held, that the gift in the will was not a satisfaction of the covenant so far as the wife and children were concerned, but was a satisfaction of the son's interest thereunder; and that the son must therefore elect between his life interest under the settlement, and one-fifth of the residue which would remain after satisfaction of the covenant. And the son having elected to take under the will, he'd further, that his life interest under the settlement was determined, and the income was payable to his wife. McCarogher v. Whieldon, Law Rep. 3 Eq. 236. See LEASE, 7. DIGEST OF ENGLISH LAW REPORTS. afterwards, L. owing money to N., N. obtained from him possession of his land, though on what terms did not appear, and then granted him a lease for a year of it. H. was in arrear with G., and H.'s tenants were in arrear with him. N. purchased G.'s interest in all the lands, and gave notice to the tenants to pay arrears, and take out renewal leases: this not being done, N. brought ejectment, and recovered possession. Held, that the circumstances did not raise an equity in favor of L.'s widow to have her jointure declared a charge on the lands.-Hickson v. Lombard, Law Rep. 1 H. L. 324. 3. The court of chancery, and not a court of law, is the proper tribunal to determine a questian of title depending on the validity of its own orders. Howard v. Earl of Shrewsbury, Law Rep. 3 Eq., 218. See COMPANY, 1. EQUITY PLEADING AND PRACTICE. 1. A bill to perpetuate testimony relating to a matter, the subject of an existing suit against the plaintiff, is demurrable, though the plaintiff could not himself have made such a matter the subject of present judicial investigation. Earl Spencer v. Peek, Law Rep. 3 Eq. 315. 2. In a case where, under the old practice, the court would have directed, at the hearing, an inquiry on a question of fact, it may now examine a party or a witness viva voce under 15 & 16 Vic. c. 86, § 39.-Ferguson v. Wilson, Law Rep 2 Ch. 77. 3. A plaintiff cannot open a settled account, unless his bill states specific errors in the account.-Parkinson v. Hanbury, Law Rep. 2 H. L. 1. 4. Under 15 & 16 Vic. c. 86, § 55, the court can order a sale before the hearing of a suit, if it is for the benefit of the property.-Tulloch v. Tulloch, Law Rep. 3 Eq. 574. 5. The court of chancery will not set aside an order not appealed against, provided the facts were duly before the court when the order was made, except when there is such broad and palpable error that it is plain the court must have miscarried.-Howard v. Earl of Shrewsbury, Law Rep. 3 Eq. 218. 6. A defendant having several times obtained an extension of time to answer, filed at last a document stating that he could not answer in the absence of information, for which he had sent to the continent, but which he had been unable to obtain. On motion, the document was ordered to be taken off the file, and the defendant ordered to pay the costs of the motion, and all other costs occasioned by filing such answer.-Financial Corporation v. Bristol and N. Somerset Railway Co., Law Rep. 3 Eq. 422. 7. In a foreclosure suit, a defendant, having been served with the bill and interrogatories, wrote to the plaintiff that he claimed no interest in the subject matter of the suit, and that, if an answer was insisted on, he should apply for costs. The interrogatories not having been withdrawn, he put in an answer and disclaimer, and at the hearing applied for costs. Held, that as he had not simply disclaimed, but had answered and appeared for the purpose of claiming his costs, he was not entitled to any costs.-Maxwell v. Wightwick, Law Rep. 3 Eq. 210. See APPEAL, 2, 3; INJUNCTION; New TRIAL; ESTATE TAIL.-See TENANT IN TAIL. ING AND PRACTICE, 1, 2; EXTRADITION; EXECUTION. A sheriff's officer went to the defendant's premises to levy under a fi. fa., and, without doing or saying anything more, produced his warrant, and demanded the debt and costs, together with poundage and expenses of levy. The money was paid under protest. Held, that this was not a levy, so as to entitle the sheriff to poundage, or the officer to fees.-Nash v. Dickenson, Law Rep. 2 C. P. 252. EXECUTOR. 1. In an action against the executor of A., the declaration alleged that the plaintiff had recovered judgment against A., executor of R., and that A. had been guilty of a devastavit. The defendant pleaded that R. appointed A. and B. his executors; that B. was still living; that A. at his death, and after his death B., had effects of R. sufficient to satisfy the judgment and that the defendant never had in his hands any effects of R. as executor. Held, that the plea was bad, as, by the 30 Car. II., c. 7, the defendant was responsible as executor for A.'s devastavit, which the plea admitted.-Coward v. Gregory, Law Rep. 2 C. P. 153. 2. A. was entitled to a life income from her husband's estate, and died in 1861. A bill was filed by her executor, in 1862, against her hnsband's executor, for an account of income due her estate. In 1863 accounts were directed. In 1866 a certificate was made, finding a large sum due from the husband's executor. Held, |