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ANDERSON, Alfred, 270
BAKER, John, 169
Bear, Mary, 244
Beazley, Francis, 420
Beckwith, Henry Bruce, 194
Benton, Sarah, 457
Bettle, Thomas William James, 517
Biddles, James, 442
Binckes, Henry, 169, 456
Blackburn, T. 538
Blanchard, Elijah, 538
Blense, Peter, 538
Bloomfield, Robert, 270
Borwick, Henry Thomas, 194
Bowen, Samuel, 538
Burrow, Dinnis and Hannah, 538
Burrows, Elizabeth, 216, 270
Burroughs, Mary, 169
Bye, Theanah Haynes, 478
CALLOW, Rebecca Worthington, 420
Carlyle, James C. 331
INDEX TO HEIRS-AT-LAW, &c.
Cooper, Frances, 124
Cooper, John, 478, 538
Crouch, John, 331
Campion, Jane, 291
DALMAHOY, Mary, 244
De Coston, Angelina, 169
EATON, Benjamin, 398
Elliott, Mary, 270
FALLS, Sophia, 244
Fullwood, Charles, 216
GARLICK, Lawrence and Mary, 456
Garner, James, 291
Garner, Jonathan, 291
HABERMAYER, J. J. F. 148
Hall, Betsey, 517
Hill, Esther, 129, 244, 478
Hilliard, John, 169
Crouch, Samuel, 331
Crouch, Thomas and James, and Edward Humphreys, Mab, 478
and Stephen, 331
Hunt, Samuel, 420
Hyde, George, 420
IRVING, JAMES, 291
JACKSON, Decimus, 194, 216
James, Elizabeth, 557
James, Richard, 244
Jezeph, Ann, 244
James, William, 557
Jaffery, Elizabeth, Robert, William, Mar- Paul, John William, 557
garet, Catherine, John, 477
Pearce, Thomas, 420
Poulson, William, John, Joseph, Cicely, and
QUICK, John, 420
RAEBOUT, Verneuil, 331
Richardson, Richard, Charlotte, and Cathe
KAYE, John, 457
LACROIX de, Irenee, 331
M'GREGOR, Alexander, 216
Marson, William, 169, 456, 477
Martin, Esther, 194
Martin, John, 194
Mason, Christopher, G. 124
Moore, Thomas, 194, 270, 331
NASH, James, 148
Napper, John, Mary, and Charlotte, 379
Nedham, Samuel, 99
Owen, Capt. James, 124
OAKLEY, Ann, 194, 216
PAGE, Ann, 124
Riortean, Jane, 169, 457
SALMON, Robert, 420
Scott, James, 124, 194
Scott, John, 291
Scottowe, N. W., Geo. B., Elizabeth, Thos.-
Seddon, Alice, 538
Smith, Philip, 442
Smith, Thomas, 291
Starke, Richard J. H. 244
Thomasett, Frank, 194
Williams, John, Philip, Thomas, and Louis
Walton, John, 244
TAPRELL, W. 99
Wood, Robert, 148
Wright, M. Elizabeth and George, 477
White, Elizabeth, 194, 216
White, John, 331
Whitehead, Frederick and Edward, 457
Wilkes, Richard, 216
Williams, Ann, 538
YATES, William or Mary, 358
| Young, Robert, 124, 270.
21 21 21
Page the trusts of this my will ; and that they shall not be time might elapse before that could be effected, the Roroang
charged and chargeable with, or answerable or ac purchase of the Exchequer bills for this temporary Lord Chancellor's Court ....... Vice-Chancellor of England's Court». «...
countable for, any sum or sums of money other than purpose might perhaps be a proper and prudent act,
1 Rolls Court ...
2 such as shall actually come to their respective hands, in order that the money might not be unproductive to Vice-Chancellor Bruce's Court
or with or for any loss or damage which may happen the estate in the interval ; I feel compelled, how. Vice-Chancellor Wigram's Court
3 by depositing any moneys to be received by them as ever, to come to the conclusion, after much anxious Court of Queen's Bench
4 aforesaid, in any bank or banker's hands, or else consideration, that the defendant was not justified in Court of Common Pleas
where for safe custody, or by laying out or investing leaving these Exchequer bills to so large amount, and Commissioners' Courts-London Bristol ......van..
the same, or any part thereof, in any real or govern- for so long a period, in the hands of the brokers. It Central Criminal Court
ment securities, or any of the public funds, or by any was, in effect, substituting the brokers for himself as Irish Reports
8 alteration or transposition thereof, respectively, nor guardians and trustees of this property. It was LIGISLATOR-Summary ....
10 with or for any loss or damage which may bappen in transferring his duty to them. The circumstance of Bosiness of Parliament.....................
or about the execution of this my will, or any of the their acting to a certain extent as bankers, and occa. Bills in Progress.................nrr. The Debates............vvon.**.***.**
trusts therein declared, without their respective wil- sionally as his bankers, does not, I think, make any MAGISTRATE-Summary..
ful neglect or default." The defendant Brise sold the difference. They were allowed to mix these bills New Poor-Law Removal Bill ...
ii real estates, and in March 1840 the purchase-money with the general mass of securities in their possesReview of Magistrates' Cases decided in Hilary Term was paid into his account with Messrs. Oakes, of sion-securities in which they dealt--and to exercise
and Vacation (Grear Western Railway Case Rating) 12 Bury St. Edmunds, his bankers, by Mr. Almack, the an unlimited controul over them. I think in this he Practice of Summary Convictions continued)... Juvenile Offenders...
testator's family solicitor, who had conducted the sales. acted inconsistently with his duty as executor and Statistical Society
In April the defendant ordered the principal part of trustee of this fund. There was the obvious danger LAWYER-Summary ................
the money, amounting to 5,6n0l. to be invested in that if the Wakefields were at any time much pressed Practice of Wills.
15 Exchequer bills, by Messrs. Wakefield, of Broad- for money, they might not easily resist the temptaPROMOTIONS, APPOINTMENTS, &c...
16 street, the brokers and bankers. This was done in tion of making use of the bills, perhaps, at first, for COURT PAPERS....
10 order to make the funds productive duriog a treaty a temporary purpose, and afterwards be unable to LEGAL INTELLIGENCE
The replace them. Inns of Court
He was not justified in incurring this for a mortgage security which was going on.
16 PROCEEDINGS OF LAW SOCIETIES
Exchequer bills were left in the hands of Messrs. risk. It was his duty either to have kept the bills in Society for the Amendment of the Law..
16 Wakefield. The mortgage negotiation was pro- his own possession, or, if they were entrusted to any CORRESPONDENCE
tracted and eventually went off, so that part of the other custody, they should at least have been só Selections from Correspondence..
19 Excheqner bills, to the extent of 4,000l. remained in secured as to separate them from any other property NOTICES TO CORRESPONDENTS
19 the hands of Wakefields until the 6th of April
, 1841, in the possession of the person or persons with whom LEADING ARTICLES To Readers ..........
when they failed. Then it was dicoovered that they they were placed. Conveyancing..
20 had sold the Exchequer bills and applied the produce I am compelled to say. under these circumstances, Liabilities of Attorneys
20 to their own use, and their estate paid a dividend of that the defendant is responsible for the consequences Index Legum
20 only 6d. in the pound. Under these circumstances, of the insolvency and misconduct of the Messrs. Professional Malpractices..
the widow and younger children of the testator filed a Wakefield. Sham Lawyers. .
bill for the administration of his estate, and to ** Necessity," Lord Cottenham observes, which BIRTIS, MARRIAGES, AND DEATUS
make the defendant, Brise, liable for the loss which includes the regular course of business, in adminisTHE CRITIC Browell's Real Property Statutes
had been sustained by Wakefields' failure. The cause tering the property, will, in equity, exonerate the Scott's Law and Practice of Railway and Private Bills was heard at the Rolls, upon bill and answer, and a personal representative ; but if, without such neces. Riddell's Railway Parliamentary Practice..
22 correspondence which had taken place between the sity, he was instrumental in giving to the person fail. PROPERTY JOURNAL
defendant and Mr. Mathew and Mr. Almack, her ing possession of any part of the property, he will be Public Sales...... GAZETTES ........
23 solicitor, was admitted and read, for the purpose of liable." ADVERTISEMENTS.
shewing that the defendant had consulted and ap- The judgment must, therefore, be affirmed with prised them of all his dealings with the trust funds, costs.
and that he had been anxious to do what was most THE REPORTS.
for the benefit of his cestui que trusts. The Master VICE-CHANCELLOR OF ENGLAND'S
make good the loss which had been sustained by the
trust fund, with costs. (5 Beavan, 239.) LORD CBANCELLOR'S COURT, From that part of the decree the defendant
Friday, Jan. 23, 1846.
MINTON v. CAVE,
Bethell, Trigram, and Shee, for the appellant, con. Will-Construction-Bequest - Tenancy in common.
tended that the defendant had done all that reason. T. M. by his will gare to his fire daughters, M. S., E., Investment of trust funds --Breach of trust-Deposit
able prudence dictated, and that he was not liable for J., and C. a sum of money, and directed the interest
the loss occasioned by the felonious act of the broker. to be paid to them in equal parts or shares during of trust securities-- Indemnity clause.
their lires, and the principal to be rested in the funds A trustee is bound not to entrust any person nith the (3 Atk. 480); Ex parte Belchier (1 Ambler, 218); They cited and referred to Knight v. Lord Plymouth
in trust for them, or the surrirors or surriror of possession of trust property, so as to enable it to Jones v. Jervis (2 Ves. sen. 240); Harrey v. Aston (1
them. After their deaths, the principal in equal be misapplied, to a greater extent than is absolutely Eden. 114) ; Routh v. Jones (3 Ves. 565); Massey v.
parts to the surriring children, as they should arrire necessary, including in that term the ordinary course Banner (í Jacob & Walk. 241); Langford v. Gas
at the age of trenty-one. E. one of the daughters, of business. Thus, where Exchequer bills had been coigne (ìi Ves. 333); Shipbrook v. Hinchinbrook (11
died rrilhout haring been married. Held, that the left by a trustee in the hands of the brokers, who Ves. 252); Underwood v. Stevens (1 Mer. 712); Clough
daughters who surrired took the whole for their lives, also acted to some extent in the capacity of bankers,
as tenants in common. pending a treaty for a mortgage, and had been sold : Bond (2 Myl. & Cr. 496); Hanbury v. Kirkland (3
Simons, 265); Ex parte Griffin (2 Glynn & Jame- The testator, Thomas Minton, by his will bearing by the brokers, who had applied the money to their son); Drever v. Maudslay (1 Ver. Real Prop. Cases, date 7th April, 1832, bequeathed as follows: "I give own purposes, it was held, upon the failure of the 183).
and bequeath to my daughters, Mary (now Mary brokers, that the trustee was liable to make good the
Russell and Chandless, for the respondents, the Campbell), Sarah, Elizabeth, Julia (now Julia Cave), loss to the trust estate.
plaintiffs, contended that the defendant, by leaving the and Catherine, 12,5001. chargeable on my real estate William Mathew, who died in 1834, by his will Exchequer bills in the hands of the Messrs. Wake- at Shelton alias Snape Marsh, and on my personalty devised certain real estates in the county of Suffolk, field, without any check or control, had enabled them money in the funds of the stock of England, or elseand also bequeathed his personal estate to the der to commit the misappropriation which had caused the where, the interest of the above sum, to be paid them fendant, S. R. Brise, and another trustee who died loss of the trust-fund. They cited and referred to in equal parts or shares during their lives, and the in the testator's lifetime, upon trast, to pay the io. Dawson v. Clarke (18 Ves. 254); Bacon v. Bacon (5 principal to be placed in the funds, or Bank of Engcome to the testator's widow for her life, and after Ves. 331); Salvay v. Salvay (4 Russell, 60 ; 2 Russ. land, in trust for them, or survivors or survivor of her decease to divide the principal amongst bis & Myl. 215); Shipbrook v. Hinchinbrook (16 Ves.472), them, and nothing but their receipts shall be a release executors of his will. The testator empowered and and the cases mentioned by the counsel for the appel- or discharge to my trustees ; nor shall any bank. laat.
ruptcy of themselves or their husbands, have any directed his executors and trustees to sell the real
Bethell, in reply.
power over them or their said trustees, but solely for estates either by public auction or private contract,
their maintenance; the principal, after their deaths, and either altogether or in parcels, and to buy in the Saturday, Dec. 20.--The LORD CHANCELLOR.- in equal parts to the surviving children as they arrive same as often as occasion should require, without the defendant, who acted as the sole executor of the at the age of twenty-one." being answerable for any loss which might happen will of William Mathew, was directed from time to The testator died in the year 1836, leaving his from such buying in; and he directed that the receipts time, as any money should come to his hands, to above-named five daughters heirs, surviving him. of his trustees should be discharges to purchasers. manage the same at interest, by investing the same The bill was filed for the purpose of having the trusts And after giving a contingent annuity of 2601. to his in a competent share or shares of the Parliamentary of the will declared and carried into effect, and a de. wife, payable in part out of the money to arise from stocks or public funds of Great Britain, or in real cree was accordingly made in the year 1838, whereby such sales, “ gave all the stock and moneys to arise securities in England. He entered into an engage the testator's five daughters were entitled to life as aforesaid, and all his personal estate, of whatever ment to lend
a part of this money on mortgage, and interests for their separate use in the said sum of nature or kind, upon trust for the equal benefit and in the meantime, until the mortgage securities should 12,5001. with liberty to any person to apply upon the participation of all his younger children as tenants in be completed, he directed his brokers, the Messre. death of any of the above. named daughters. Elizacommon at 21 years of age;" and he directed his Wakefield, to lay it out in the purchase of Exchequer beth Minton, one of the said testator's daughters, said executors and trustees, from time to time, as bills. These Exchequer bills he left in the hands of died in September, 1845, without having ever been any moneys should come to their hands, to manage his brokers, who acted also, to some extent, as bank- married. Two of the other daughters were married, the same at interest by investing the same in a com. ers, and occasionally as the bankers of the defendant. several of their children were now living, but two of petent share or competent shares of the Parliamentary Considerable delay took place in settling the mort. them had died in their infancy. The question to be stocks or public funds of Great Britain, or on real gage securities, and the Exchequer bills were allowed decided was, therefore, to whom Elizabeth's share in securities in England, in their names, or in the to remain with' Messrs. Wakefield from 4th March, the trust fund was to go in consequence of her death. name of the survivor, bis executors or administra- 1840, to April 1811, when they became bankrupts. It, On the behalf of the residuary legatee it was contors; and he gave them the power, at their dis was then found that they had sold a part of the bills tended that none of the daughters were to take cretion, to vary such stocks, funds, and securities to the amount of 4,0001. and applied the money to by survivorship, for that " after their deaths,” was The will contained the following clause of indemnity: their own purposes.
to be taken after their respective deaths; the meaning ** It shall be lawful for my executors and the survi
The question is, whether the defendant is bound to of the testator being to give the share of each one of vor of them, his executors, &c. out of the moneys make good this loss? It is very painful to be called his daughters to her children.. Consequently, the which, by virtue of this my will, should come to their upon to decide cases of this description.
share of Elizabeth who died without leaving issue bands, to reimburse themselves, &c. all the costs
As it was necessary to be prepared with the money must go over to the residuary legatee. wbich' they shall incur or sustain in the execution of when the mortgage should be completed, and as some For the surviving children of one of the daughters,
VOL. VII. No. 157,
it was submitted that the testator's daughter took an 1844, this report was confirmed, when it was referred special Order, and the 68th for the case of a special absolute gift to them as tenants in common for life, back to the Master to ascertain what was due to cer-Order after replication. These Orders, therefore, do and to the survivors of them ; and that the expres- tain mortgagees of the said dwelling-house, &c.; alter the old practice, and that consistently with the sion “after their deaths," was a general one, sigoify- and by his report of 22nd April, 1845, found that 39th Order of the 26th August 1843, under which a ing nothing more than after their interests were 9081. was due to the said mortgagees. The sum of plaintiff might amend by adding parties, setting down determined, which interpretation would shut out the 1,6241., part of the said 2,7481. Consols, was accord- the cause on tbat objection only if taken by the an. residuary legatecs.
ingly sold out for the purpose of raising the said sum swer, as it was in this case. There are merits, but For other parties who represented the deceased of 1,608l., leaving the sum of 1,1241. Consols remain the cause being before the Vice Chancellor of England, children of a daughter, it was contended that “sur. ing. The Master also, by a report of 23rd December, they cannot be gone into here, the mere question of viving was confined to the period of the testator's 1845, made in pursuance of an order of 15th March, irregularity being the only point that can be disdeath,
1845, found that it would be fit and proper that so cussed. The VICE-CHANCELLOR.-In this case the testa- much of the said sum of 2,7481. Coosols should be Turner (with him Tennant), contrà.-It is conceded tor has, in the first place, given a joint tenancy in the sold as would be sufficient to raise the sum of that the Order of course is regular, unless the New fund to his daughters, and then a tenancy in common 9001., and that the sum when raised should be laid Orders bave altered the practice. Now the language during their joint lives. I say as tenants in common, out and invested in the purchase of certain lands and of the Orders of 1841 was just as strong as that of for he directs as follows : “nothing but their receipts hereditaments comprised in an agreement of the 1st the New Orders, and notwithstanding the Order of shall be a release or discharge to my trustees,”' &c. Now, March, which had been entered into by Mr. Cress. course to amend by adding parties was not restricted he must be presumed to have intended that this bequest well for the purchase of this land and hereditaments, to any particular time or state of the cause. (Bratlle should continue so long as any of his daughters should for the sake of having the benefit of it transferred to v. Waterman, 4 Sim. 125.) Besides, an order to require maintenance – that is, during their lives. the vicarage ; and the Master was of opinion that a amend by adding parties does not affect a plaintiff who He then goes on to declare that the principal, after good title could be made thereto. The present pe- has answered: their deaths, shall be given in equal parts to the sur-tition was now presented by Mr. Cresswell, stating, Dickenson, in reply.-The cases under the old praca viving children as they arrive at the age of twenty: among the foregoing matters, the existence of a mort. | tice do pot apply. So far as the Order is affirmative one. When, therefore, is the principal to go over ? gage on the last-mentioned property, then vested in the language is no stronger than before; but the The expression is “after their deaths"—that is, after the Rev. R. Shutte, and praying that the report of negative clause is applicable to all cases without ex. the deaths of all. There are no words of severance : 23rd December, 1845, might be confirmed, and that ception. after the death, therefore, of all of the daughters, the it might be referred back to the Master to ascer- The Master of the Rolls.-It comes to this, fund is to go to the surviving children, which I think tain what was due to the Rev. R. Shutte for whether or not a special application must be made for is intended to mean the aggregate class of children. principal and interest on the said mortgage se. leave to amend. i sball consider. My opinion is, that as the testator gives the money curity, and praying a sale of a sufficient part
March 2..-The Master of the Rolls said be to his five daughters during their lives, with a clause of the said sum of 1,1242 Cousols to raise the would grant the order asked, but without costs. directing their receipts and the gift over, it makes said sum of yout, and praying that it might be referred those four daughters who survived their sister Eliza- to the Master to tax all parties their costs, charges,
Tuesday, Jan. 20, 1846. beth tenants in common during their lives. When and expenses which might have been incurred in con.
Re COLQUnoun. another daughter dies, another question may arise in sequence of the investment of the said purchase or Taxation–Mortgagor and Mortgagee-Specific items respect to an accrued share.
compensation-money, in purchasing the said dwelling- -Special circumstances-Retaining money in pay
house, lands, and hereditaments, and in obtaining the ment. Saturday, Feb. 7.
said order of 15th March, 1845, and consequent A mortgagee haring sold the mortgaged premises under Re BRISTOL AND EXETER RAILWAY COMPANY. thereon, and that such costs, charges, and expenses, a power of sale, his solicitor retained out of the Ex parte CRESSWELL.
when so taxed, might be paid by the said Bristol and surplus moneys, after satisfying the mortgaged debt, Master's office-Costs of purchase by public company. Exeter Railway Company.
the amount of his own bill of costs, and paid over Under the Railway Act for the above-mentioned com. Stuart and Stevens, on behalf of the petition.
the balance to the mortgagor, who received it without pany money was directed to be invested in land; and
Bethell and Osborne, on the part of the railway at the time making any objection. There was nothing there had been two references to the Master relating company, contended that it was unfair that the com
to shew that the solicitor had used any pressure, or to the purchase of troo separate pieces of land, and pany should be called upon to pay all the costs of the that the mortgagor had not time enough to examine an account had been taken of the amount due on cer- different orders, amounting altogether to 408l., inas. the bill; and there were no specific items complained tain mortgages of the said pieces of land. Held, much as the dwelliog-house and the land might have of. A month after the retainer by the solicitor, but that the costs of the proceedings must be borne by the been included in the first petition in April, 1843, after wilhin the year, the mortgagor applied to the court railway company.
Mr. Cresswell had obtained his contract for the land. for an order of reference to tax, which was refused. The 9th section of the Bristol and Exeter Railway Moreover, the costs of taking the various accounts The retainer of a sum in payment of a bill of costs may Act reciting that the said railway was intended to be due on the mortgages being very complicated and ex- or may not be proper, according to the circumstances. formed in or on a part of the pleasure grounds aod or- pensive, it was against all principles of justice that This was a petition by a mortgagor, praying for an chards belonging to the vicarage of Creech St. Michael, the company should be fixed with those costs. As to order of reference to tax the bill of costs of the solici. as therein mentioned, enacts that the whole or any the second purchase, the rev. gentleman having tor of the mortgagee. He had sold the mortgaged part of the compensation to be payable to the vicar agreed to purchase it, he ought to have completed his premises under a power of sale, and his solicitor had in respect of the vicarage-house, pleasure-grounds, contract, and paid off the mortgages ; in that case, retained the amount of his bill of costs out of the sur. &c. taken from such vicarage for the purposes of the it would have come to the railway company free of plus, after satisfying the mortgage debt, and bad paid Acts, might, on petition to the Court of Exchequer, the present expense. The Act is not imperative as over the balance to the mortgagor. The sale of the be laid out and disposed of in purchasing other pro- to costs, but makes it optional for the Court to deal premises took place in June, 1844, and a settlement perty as therein mentioned. The 39th section provides with them according to its own principles of equity. between the parties was come to in May, 1845, on for the payment and investment by order of the Court Stuart, in reply, contended that the title of which which occasion there was nothing to sbew that any of purchase or compensation money, payable under the mortgages formed a portion had been approved of pressure had been used by the solicitor, or that the the Act, to corporations and persons under disabilities. by the Master, and that as Mr. Cresswell had entered mortgagor had not had abundant opportunity to exBy the 44th section it was enacted that where by reason into the agreement of the 1st March to purchase the amine the bill. In October 1845, the mortgagor preof
any disability or incapacity of any party entitled to lands in question for the benefit of the vicarage, he sented a petition for taxation, and the case now came any lands to be taken or used, or in respect of which was entitled to call upon the company, under the on to be heard. any satisfaction, recompense, or compensation should 44th section of the Act, to pay all the costs incurred. Winstanley, for the petitioner, complained that the be payable, under the authority of that Act, the The Vice-CHANCELLOR thought that the two charges were excessive. [The Master of the Rolls. purchase money for the same, or the money paid for purchases ought not to be included in the same re- --Does the petitioner complain of any specific item ? such compensation, should be required to be paid port; for until it were properly ascertained that the Is there any specific charge stated to be improper ?} into the Bank of England for the purpose of being in. dwelling-house were fit for the vicarage, it could not No; the petition is within the year. [The MASTER vested in the purchase of Consolidated or Reduced be determined whether the purchased land was 80 of the Rolls.-Yes, but the petition is not therefore Bank Annuities, or in government securities, to be situated in respect to locality as to be a proper pur- to be granted as a matter of course.) There was a applied in the purchase of other lands to be settled chase. The company must, therefore, pay all the correspondence between the parties, which will show to the like uses, in pursuance of that Act; it should costs.
that there was an understanding between them that be lawful for the said Court to order all the costs, Costs to be paid in pursuance of the terms of the the question should be left open. Besides, there was charges, and expenses of or which might be incurred Act of Parliament,
no actual payment, but only a retainer by the solici. in consequence of the purchase, or taking, or using
tor of the amount of his bill out of our moneys; and of such lands by the said company, under or by virtue
we took what we could get. [The MASTER of the of that Act; and also of the investment of the pur.
Rolls.—That retainer may or may not be correct. chase and compensation money in Consolidated or
The only question is, whether on the ground of Reduced Bank Annuities, or other government secu, Monday, Dec. 16, 1845, and Monday, March 2, 1846. the negotiation, and discussion which has taken rities, or of the re-investment of such purchase and
HitcHCOCK v. JAQUES.
place, I can let the petition stand over to amend.] compensation money in land, together with the ne- Practice- New Orders of 8th May, 1845-Order of The letters and the affidavits shew that there was cessary costs and charges of obtaining the proper
course to amend-Replication.
an understanding that there should be a discussion as orders for such purposes, and for the payment of the After filing a replication, it is irregular to obtain an to the items. dividends, interest, and annual produce of such Con- order of course to amend by adding parties; the old Kindersley, for the respondent, was not heard. solidated or Reduced Bank Annuities, or other govern. practice in that respect being altered by the Nero The Master of the Rolls.-This is a petition ment securities, to be paid by the said company out Orders.
praying for the taxation after payment of a solicitor's of the moneys to be received by virtue of that Act; The bill in this case was filed in April, 1844, and bill of costs, but containing no allegation of any and the said company
should from time to time pay the answer was put in on the 22nd July following. special circumstances on which to ground the order such sums of money for such costs, charges, and ex. On the 13th June, 1845, the plaintiff applied for an asked. It is stated, that the payment of the bill was penses as the said Court should direct.
order as of course to amend by adding parties; and by the solicitor retaining the amount out of a balance Subject to the provisions of the above Act the the defendant now moved to discharge that order for in his hands ; but it is not alleged that the bill was railway company took the dwelling-house and certain irregularity, the plaintiff having obtained it after filing then delivered, or that any pressure was used ; so lands, part of the vicarage and glebe lands, and paid a replication.
that there is nothing in the special circumstances of a sum of money by way of compensation, which was Dickenson, for the motion, contended that the com- the payment to make out a case for the petitioner. Nos invested in 2,7481. Consols.
mon order to amend by adding parties was irregular, is there any specific error alleged ; but it was not The Master, by his report dated 13th November, and that the old practice in that respect was now quite clear whether the correspondence might not afford 1844, made pursuant to a previous order of 18th altered by the effect of the New Orders. The 65th ground for giving leave to amend the petition. When, April, 1843, found that the Rev. Henry Cresswell, Order is positive, giving leave to amend at any time however, we come to the affidavits, and find no specific the vicar, was entitled to an estate in fee-simple to a for the purpose of rectifying a clerical error; but the item mentioned even in them-not one--I must disdwelling-house, &c.; and that the purchase thereof 66th is negative, declaring that no further Order of miss the petition with costs, but without prejudice to at the price of 1,6061. was a fit and proper purchase, course is to be obtained after replication except in the a new one being presented. and that a good title had been made thereto. By an case provided for by the previous Order. Then the order of the Court bearing date the 6th December, 1 67th Order provides generally for the granting of a
and on the 14th of September, 1843, the said
Saturday, March 7.
Will-Construction-Conversion of residue.
Chandless, for the plaintiffs.
that this was a residue accompanied by all the conse-
Monday, March 9. DALTON . LAMBETH. Practice-Costs of puisne incumbrancer in a foreclosure suit. This was a foreclosure suit, and some discussion arose as to the costs of one of the defendants, a puisne incumbrancer, who had by his answer disclaimed, but had not stated that he never had claimed any interest in the subject-matter of the suit. Russell, Malins, Faber, and Prout, for the several parties.
The VICE-CHANCELLOR.-In a foreclosure suit, a puisne incumbrancer has a right to disclaim; and unless there be any thing special-any thing more I think it is the right of the plaintiff (the first incumbrancer) to bring the cause to a hearing, and have his disclaimer at the bar, paying his costs and adding them to his own, unless there is any thing special. This applies only to foreclosure suits.
Russell and Daniell, for the plaintiffs.'
Wednesday, March 11.
Where a testator by his will directed the legacy duty on
Berir, for some of the legatees, contended that the
Tuesday, March 10.
ROEBUCK V. HABERSHON.
A testator, by his will, gave to J. H. all he had in the
March 12 and 23.
The testator died on the 26th of February, 1831, and his will was proved on the 16th of March, 1832, by the testator's brother, Joseph Habershon. Joseph Habershon died on the 11th of September, 1842, having, by his will, dated the 7th of February, 1839, appointed his sons, John Habershon and Matthew Habershon, the defendant, his executors,
Wm. Slater married in the year 1830, without having executed any settlement upon his wife or future family, and was then, and after his marriage, a draper by trade until the year 1841, when he was embarked in business as a salt manufacturer; and in the year 1842, being possessed of property in value three times the amount of his debts, and twice the amount of his debts and liabilities, he executes a voluntary settlement whereby he conveys and assigns certain freehold property, mining, and railway shares, to trustees upon trust for the benefit of himself for life, remainder to his wife and children. He retains possession of the title-deeds, and certificates of the mining
Shebbeare, for other parties, in opposition to the legatees, was not heard by the Court.
The VICE-CHANCELLOR.-I cannot hold that the word "herein " meant more than the particular instrument in which it was used, and therefore I cannot extend it to this codicil.
and railway shares, notwithstanding the settlement, and in July following the execution of the settlement, he deposits the title-deeds, and mining and railway certificates, relating to the property comprised in the settlement, with the Union Bank of Liverpool, in consideration of advances made, and to be afterwards made, by the bank not exceeding 2,000l. to his order. In Feb. 1843, Slater was declared a bankrupt; the amount claimed by the Union Bank was 1,000l.
In June 1843, the solicitor for the trustees of the settlement gave the Union Bank notice of their claim under the settlement; whereupon the Union Bank, by their registered officer, filed the present suit against the assignees of Slater, the trustees of the voluntary settlement, the bankrupt, his wife and children to have the voluntary settlement declared fraudulent and void, and the property comprised therein sold, and the produce applied in payment of their claim.
Anderton and James, for the plaintiff, cited Russell v. Hammond (1 Atk. 15); Walker v. Burrows (1 Atk. 93): Lord Townsend v. Wyndham (2 Ves. sen. 10).
Parker and Craig, for the defendant, cited Richardson v. Smallwood (Jacob, 552); Kerrison v. Dorrien (9 Bing. 76); Leech v. Wilkinson (5 Ves. 384); Norent v. Dodd (1 Craig & Phill. 100); Townsend v. Westmacott (2 Beavan, 340); Buckland v. Mitchell (18 Ves. 100).
The VICE-CHANCELLOR.-This case questions the validity of a voluntary settlement as against subsequent mortgagees of the settlor's property, and the object of the bill is that the plaintiff may be treated as a purchaser for a good consideration under the stat. 27 Eliz. c. 4, by virtue of which it is alleged the settlement must be treated as void, for it is contended that Slater, at the time of executing the settlement, was indebted to the Bank, and other creditors, in an amount exceeding what he was able to pay or secure,
and therefore that the deed of June 1842 was void under the statute of Elizabeth. I consider that Buckle v. Mitchell (18 Ves. 100) is a direct authority for holding that an equitable interest in land, entitling a party by contract to clothe it with a legal title, made such party a purchaser in the eye of the Court, and entitled the plaintiff to avoid the settlement and enforce his securities. As to the second question, the plaintiff being entitled under the 27th Elizabeth, it would have been unnecessary to notice the claim for relief under the 13th of Elizabeth, had not the defendant argued that this ground of claim for avoiding the deeds was altogether void, and that the plaintiff must therefore pay so much of the costs of the suit as had been incurred in respect to the claim. Those who contended that the claim could not be sustained under the 27th Elizabeth, could not, with success, urge that argument, unless they could shew that the evidence in the cause was insufficient to sustain the case. If the settlement was to stand, the deposit would become useless. The plaintiff had a direct interest in shewing that the settlement was invalid, and, if he succeeded in doing so, he thereby gave validity to his own security, as the plaintiff, by virtue of his security, had a specific interest in part of the property comprised in the deed. I consider he has an interest sufficient to entitle him to sustain this suit, and that he is entitled to sue for a decree under the 13th of Elizabeth; and that the plaintiff, as representing the Union Bank of Liverpool, is entitled to be considered as a purchaser for a good consideration within the meaning of the 27th of Elizabeth, and that the settlement is void as against the Bank, so far as it comprised the property mentioned in the deposit of July 1841. Let it be referred to the Master to take an account of the principal and interest due to the plaintiff under that security, and to tax the costs of the suit, the assignees to pay the Liverpool Bank what shall be found due for principal, interest, and costs within six months of the Master's report; and in default of payment, the property comprised in the plaintiff's security must be sold, and the proceeds applied in payment of what is due to the Bank; further directions and costs to be reserved.
Friday, March 13.
PARSONS v. MUNTZ and OTHERS. Practice-New Orders, May, 1845-Absconding— Service of Subpæna.
This cause first came before the Court upon a demurrer, which was overruled, and reported in the sixth vol. of the LAW TIMES, No. 148.
Hetherington now moved, on behalf of the plaintiff, for leave to substitute service of subpoena upon Messrs. Hill and Heald, the solicitors for the company, for Mr. Oliviera, one of the directors, who had absconded; he said the object of the plaintiff was to avoid the exposure consequent upon his taking the course directed by the 31st Order of May, 1845.
The affidavit in support of the motion stated that the plaintiff had called at Oliviera's house to serve him witha subpoena, when his servant said he was in France; he then served the subpoena upon his private solicitor, who returned it to the plaintiff, stating that Oliviera was abroad. Heald, the solicitor for the company, stated by his affidavit that at the conclusion of one of the meetings of the directors of the company, as one of the directors was leaving the room, he was served with a sub