she is to receive nothing. Such a proposition is contrary to plain principles of justice, particularly when it is considered that the Court has restrained her from getting the debt sooner. But the proposition which has been thrown out in argument, that the tenant for life is entitled to the whole of what has been recovered, because it amounts to less than the interest which has accrued due on the debt since the testatrix's death, is equally untenable. There is nothing in the will to entitle the tenant for life to the interest of the residue in its actual state of invest ment at the death of the testatrix; and the circumstances of the estate out of which this debt was to be paid may have been such as to make such a proposition doubly unfair towards the parties interested in the capital. Suppose that while interest was accruing upon the debts, the fund for payment of them was producing no interest at all, or a low rate of interest, it is obvious that the longer the recovery of debts was delayed the more the parties entitled to the capital would be prejudiced, for the proportion of the fund attributable to the capital would be continually lessening. I think, therefore, that the course which has been suggested is the proper one, that is, to ascertain what the bond would have realised if the debtor's estate had been administered at the expiration of a year after the testatrix's death, and to allow the tenant for life interest at four per cent. on that amount. I have not the means of knowing what that amount is, but the Master who knows the circumstances of the debtor's estate will have no difficulty in prosecuting the inquiry and coming to a conclusion. So much of the Vice-Chancellor's order as is the subject of appeal must be discharged, and I neither allow or disallow the exceptions, but refer it back to the Master to make the inquiry I have mentioned. February 27 and March 6. BUTCHART v. DRESSER. Practice-Parties-Public officer-Joint-stock banking company-Notice of motion-Costs. Where the public officer of a joint-stock banking company, duly registered according to the Act of Par liament (7 Geo. 4, c. 46), is changed after the com mencement of a suit in equity against such company, the plaintiff, in all subsequent proceedings in the cause, should treat the new public officer as the statulable officer; and no order of the Court or supplemental bill is required to bring such new officer before the Court. This was a motion, by way of appeal from an order of the Vice-Chancellor of England, refusing to order the production of the books and papers scheduled to the answer of the defendant Dresser, and also an original motion for an order on Dresser to produce those documents. partnership, the names and places of abode of all the The LORD CHANCELLOR.-What course did the Rolt.-The Vice-Chancellor held the plaintiff should have filed a supplemental bill. At law, the course is to enter a suggestion on the record. The LORD CHANCELLOR.-That is equivalent to a supplemental bill in this court. Rolt. In the case of a suit against churchwardens it was held that the change of officers did not render a supplemental bill necessary. The public officer of a banking company is a mere shadow. ser; the plaintiff only became aware of the charge of officers from the answer. The LORD CHANCELLOR.-I cannot act in the absence of the corporation or of the answer of their public officer. The Act has said he shall represent then. Rolt. Then the Court will allow the plaintiff now to serve the new public officer. The LORD CHANCELLOR.-The motion may stand over, because some of the necessary parties have not been served. At present I think it a motion in which there has been irregular service. March 6.-Rolt and Bagshawe this day renewed the motion, and, as an alternative, prayed that the suit might be prosecuted against Scott in lieu of Dresser, and that the banking company might be bound by Dresser's answer, or otherwise that Dres ser's answer might be taken off the file. The notice of motion had now been filed on the present public officer, Scott. Bacon for the Bank and Scott, the new public officer. The LORD CHANCELLOR.-Does the bank resist the motion now? Bacon.-The plaintiff should proceed regularly; the Act provides for the change of public officers, and the plaintiff had been informed by that answer that Dresser had ceased to be the public officer, and according to the practice of the Court he ought to have filed a supplemental bill. The LORD CHANCELLOR.-What change is there in the interest to render a supplemental bill neces sary. The Act says the corporation shall be represented in suits by a public officer. The corporation remains the same though the officer is changed, but he is no party to the suit. It is not much more than the change of solicitor. It is not supplemental matter, for there is no change of interest. The most parallel case is that of a female defendant who marries, and there you name her husband in the subsequent proceedings in the cause. The Act means that for convenience banking companies may be permitted to sue and be sued in the name of the public officer. That officer is to be registered, and the public have no knowledge of any change of the public officer except from the register. I think the proceedings are perfectly regular, provided the Bank will undertake to be bound by the answer put in by Dresser, the late public officer. I consider that the answer is to be taken as the answer of the Bank. The LORD CHANCELLOR.-When the corporation is plaintiff, there is no difficulty; but when the company is defendant, you must have the actual public Stuart and Tillotson for Dresser.-In Mostyn v. officer in some way before the Court. There is great Burdekin (not reported) what was done in a similar difficulty in saying how the new public officer is to case was to order that the name of the new public be brought before the Court, except by supplemen-officer should be introduced into the record, and then tal bill. The matter is of a supplementary charac- that the suit should be carried on in the name of the ter. You might take A. B. or C. on the ground of new public officer. The only question was, whether his being a new public officer, and the unfortunate the suit should be carried on in the name of the A. B. or C. would have no means of shewing that new public officer without an order. There had been he is not a public officer. a misapprehension on the part of the plaintiff, for which he must pay the costs of the motion. The defendant was, in September, 1846, when the bill was filed, the registered public officer of a jointstock banking company, in Yorkshire, called the Rolt.-There would be the same difficulty on a Yorkshire Banking company, against which the suit supplemental bill. The Act says, that the removal had been instituted. In December following, Dresser of the public officer shall not abate or prejudice any put in a full answer, on the behalf of the banking action or suit. The notice of motion had been served company, in which he stated that he had, in the sche- on the Banking Company and their solicitor, as well dules to his answer, set forth, by the permission of as on Dresser. This was the first time in which such the bank, a list of the documents, books, and papers, an objection had been taken by a banking company. inquired after by the bill; and as to certain letters, The suit was against the company, and the only use that it would be a work of great labour to set forth of a public officer was to serve as the machinery by the material contents thereof, but that he was will-which to enforce the decree against the company. ing to produce the same if the bank would permit Throughout the Act the suit is treated as one against him so to do, and admitted that these particulars re- the bank. lated to the matters in the bill mentioned. The defendant also stated, that he was not then the registered public officer of the banking company, but that one Scott had been appointed, and was then the company's registered officer. Upon motion, the ViceChancellor held that, Dresser being no longer public officer, the suit was against him as an individual only, and, consequently, that he could not be compelled to produce the documents. The notice of motion which had been served on the solicitors of the company, required that the defendant Dresser, or the present public officer of the company, or the company, or the directors of the company, should be ordered to produce the documents. Scott had been returned as registered officer on the 28th of February last. Rolt and Bagshawe, for the plaintiff. The LORD CHANCELLOR.-Was the public officer changed after the bill filed? Might not such a change be made at any time just before answer, and thus prevent discovery? He says be has the books, and will produce them with the permission of the bank. Rolt.-The notice of motion also asks, that if the plaintiff is not right in moving for production of the documents on the present notice, that the Court will order that the suit may be prosecuted against the new public officer Scott, or that Dresser's answer may be taken off the file, and a new answer put in by Scott. The LORD CHANCELLOR.-The 4th section of the Act directs the name of the public officer to be returned to the stamp office; and the question is, whether it is not conclusive that the public officer so registered shall be deemed the officer of the company; otherwise no effect would be given to that clause. Bagshawe.-If the Vice-Chancellor's construction was the right one, the bank might constantly change its public officer, for the sake of delay, in direct contravention of the Act which says the suit shall not be prejudiced. In this case an action had been brought by the bank, in which Dresser was the nominal plaintiff, and on the change of officers there had been merely an entry on the margin of the record. The substance of the answer shews that Dresser was in communication with the bank, and, in fact, the answer was put in by the bank solicitor. Stuart and Tillotson, for the defendant Dresser, contended that the proper course was, that the plaintiff should have filed a short supplemental bill, praying that the answer of Dresser might be adopted by the new public officer. The Act of Parliament says, that when one public officer is removed, the suit shall go on against the new officer, another person. The moment the plaintiff is told that Dresser had been removed and Scott appointed a public officer, he should have proceeded against Scott, yet he still continued to proceed against Dresser. Dresser only had been served with the notice of motion; there was no service on Scott. Roll.-By the 4th section of the Joint Stock Bank- The LORD CHANCELLOR. The Act says the ing Companies Act (7 Geo. 4, c. 46), that such com-registered public officer is to be the nominal defend. panies shall return an account, according to a form ant. Why was not Scott served? set forth in a schedule, of the title of the firm or Rolt. The bank was bound by the answer of Dres. The LORD CHANCELLOR.-That will turn very much upon one of the terms of the Act of Parliament. - The LORD CHANCELLOR.-Did Dresser, before he put in his answer, inform the plaintiff that he was no longer a public officer? When the bill was filed Dresser was the public officer, and there is no fault on the plaintiff's part. Stuart. When the plaintiffs read the answer of Dresser, they should not have proceeded against him. Roll, in reply. If Dresser had put in a short answer denying that he was public officer there might be some force in the argument, but he had put in a full answer on behalf of the Bank. The LORD CHANCELLOR.-It is the mere question of the costs of the motion. The plaintiffs know that there is another public officer, and they do not serve him. They need not have served Dresser. Rolt.-He took upon himself to put in the answer of the Bank. The LORD CHANCELLOR.-He does not speak of himself as the officer of the Bank, but as an individual. The subpoena was prayed against him only as public officer of the Bank. It seems to me clear that he was sued only as public officer, appearing on the register at the Stamp Office. So far the plaintiff is right. But then a change takes place, and another person is registered, in whose name the Bank is to sue and be sued. He does not give notice of the change, but puts in the answer of the Bank. The plaintiff conceived Dresser could not be dispensed with; but whether he might or not, having put in the answer as for the Bank he is not entitled to his costs. ROLLS COURT. Jan 22, and Feb. 8. BROWNE . HOME. Practice-Taking bill pro confesso-General Orders of May 1845-Decree-Preliminary order. By the 81st of the General Orders of the 8th of May, 1845, whether there be one defendant only, or more than one, the practice as to taxing bills, pro confesso, is now the same. The same Order is intended to apply only to the preňminary order in such cases, that the clerk of records and writs attend with the record of the bill at the hearing of the cause. The 76th of the same General Orders applies to the like practice, in cases of defendants absconding, or being served with notice. This case is briefly reported in 8 L. T. 291, but it came again before the Court, there being some difficulty as to drawing up the order. There was but one defendant who was attached for want of an answer. An order was afterwards made directing the clerk of records and writs to attend with the record of the bill on the first cause-day in last Michaelmas Term to have the bill taken pro confesso. The cause was set down by order obtained by the plaintiff, and coming on to be heard, a decree was made therein to take the bill pro confesso; but a difficulty arose as to the form of the order. Glasse directed the attention of the Court to the 76th and 81st General Orders of the 8th of May, 1845. The MASTER of the ROLLS said, the proper course was, that when the plaintiff was in a condition to take the bill pro confesso, he should obtain an order of the Court to do so; and he was then entitled, on the hearing of the cause on a subsequent day, to ask a decree that the bill be taken pro confesso. The order referred to in the 81st of the General Orders of May, 1845, for taking a bill pro confesso, was not the decree that the bill be taken pro confesso, but the preliminary order commonly termed the order to take the bill pro confesso. The preliminary order having been obtained, the cause was heard against the defendants not in default, and the clerk of records and writs attended with the record of the bill; the preliminary order was then read, and as against the defaulting defendant, the Court decrees the bill to be taken pro confesso. The practice had been uniform where an order was sought to take a bill pro confesso against one of several defendants; but in cases where there was only a single defendant, and he was in default, an irregular practice had crept in, viz. to procure the attendance of the clerk of records and writs on a seal-day, and at the same time, by motion, to procure as well an order to take the bill pro confesso against the defendant, as a decree on the merits confessed. The object of the 81st General Order was to provide in all cases whatsoever, a uniform practice, that in the first place the preliminary order should be obtained; then the clerk of the records and writs was directed to attend with the record of the bill; then the cause was set down, and the Court appointed day for the hearing of it, which was attended by the clerk of records and writs; then the cause was heard, and the decree was made by the Court. The like practice ought to prevail where defendants had absconded, or had been served with notice under the 76th of the General Orders of May, 1845. Monday, February 22!2it, TURNER V. HUDSON. Will-Construction-Legacy-Distribution-Per capita-Classes. a Richard Hudson gave a pecuniary legacy to each of his brothers and sisters, by name, living at his death; and then bequeathed his residuary estate in trust for his wife for life, and after her decease to distribute the same equally (after first paying the legacies given to each of his brothers and sisters then living) between his brothers and sisters, and such of their children as should be then living; the parents and children to be classed together and to take in equal proportions. The residue was held to be divisible, in equal shares per capita, among such of the brothers and sisters, and their children, as were living at the death of the tenant for life. of Mrs. Hudson, the testator's widow; and the other Koe and Boyle for other parties. Turner and Welford for the legal personal representatives of E. Greatwick, said, "Then living" referred to the testator's own decease, he having, in the gift of the 2501. referred to that period. ever having had any issue. The plaintiff, having taken out administration to his wife, filed his bill against the executors, and thereby claimed the 1,000l. Threeand-a-half per Cent. Stock, as being an absolute gift to his wife, subject only to the trusts, for the benefit of herself and her children, if she should have any, and so belonging to him as her legal personal representative, there being no children; and he insisted that, if the gift was not absolute, it was, in the events that had happened, undisposed of, and became distributable among the next of kin of the testator living at his death. The executors filed a general demurrer to the bill. K. Parker and Foster, for the legal personal representatives of the deceased children of the testator's Purvis and F. Bailey, in support of the demurrer. brothers, referred to the bequest of the 2501. as bear--In all the decisions in favour of absolute gifts, in ing on the time when the residuary bequest was to cases resembling the present, there was something take effect, the classes taking in equal shares and special, as in Whittell v. Dudin, 2 Jac. & W. 279. proportions. The word "annuities" applied to the interest of the stock as well as the 701. a-year, so that it was not an absolute gift of the 1,000 itself; nor was there any positive clear gift in the first instance on the face of the will, with subsequent modifications imposed upon it. If Mrs. Scawin took only a life estate, the executors, and not the next of kin of the testator, were entitled to the 1,000l stock. They cited Mayer v. Townsend, 3 Beav. 443; Campbell v. Brownrigg, 1 Phill. 301; Gompertz v. Gompertz, 2 Phill. 107; Ring v. Hardwick, 2 Beav. 352; Hulme v. Hulme, 9 Sim. 644. The MASTER of the ROLLS.-The words in this will are not very accurately used or applied, but it is quite clear that in respect of his brothers and sisters he had in contemplation such of them only as should be "then living," that is, at the death of his wife; and he clearly also has in contemplation a class; but then he thought of both them and their children. After conversion he directs his trustees to pay 250l. to each Kindersley and Toller, contrà.-Absolute gifts were brother and sister then living; then he directs the given to three of the children in the clause immedistribution of the remaining fund (2501. to each be- diately preceding that containing the gift in question. ing previously deducted) in equal shares and propor- The interest on the 1,000l. stock was directed to be tions, between each (not all) and every of his bro-paid as it became due, and could not be intended to thers and sisters, and such of their children as be paid quarterly, like the annuity of 701.; and there shall be then living, the parents and children being was no gift of the stock to any one unless to Harclassed together; so that he contemplates brothers riet, and therefore the next of kin, and not the exeand sisters living at the death of the tenant for life, cutors, would take. and also children, and they were to be classed toge- The MASTER of the ROLLS.-In this case, as in ther. He has not put in the words "then living," all others of a like kind, the question is, what, having after the words "brothers and sisters," in that regard to its general purport, is the effect of the will; clause, but he has done so in making the bequest of that is, whether the words by which the legacy is 2501. to each of them, and he has also done so after given import an absolute gift, modified only by certhe words "such of the children." No doubt, how-tain subsequent restrictions, so as that the absolute ever, "persons then living" were meant to construe gift may have its full effect in all cases in which the it to mean a gift of the residue in equal shares among limitations and restrictions are not applicable; and such of the brothers and sisters, and such of their in like manner, having regard to the whole will, children as were living at the death of the tenant for whether the effect of the legacy is to give a restricted life, the testator's widow, the distribution to be made gift, which is to prevail only according to the restricamong them per capita, there being a clear presumptions and limitations in the circumstances to which tion of intention to that effect. Thursday, March 4. they are applicable, and not further or otherwise,that is the question. In this case I confess I cannot find any general scheme of this will at all sufficient to afford me the least clue to the construction of this particular bequest; nor do I think, in a case where a testator himself, providing for the benefit of his childA bequest was made to H. W. of a sum of money and also ren, shews such great variety of intention as this an annuity for life, payable quarterly, after attain- testator has shewn in the present case, that by any ing the age of twenty-one years and six months, which further consideration of the matter I could obtain two sums the testator directed to be in trust of his exe- the least light into his intention, to enable me to cutors not to permit H. W. to assign "her said an-judge of what he meant to give and to construe nuities;" and the interest arising from the sum of money was to be paid to her separate use as it became due, and the principal at her death was to be divided equally among her children: and the testator devised all his money in the funds, &c. to his executors; Held, that H. W. had only a restricted or limited John Watson, by his will of the 1st of January, 1829, gave certain absolute bequests to his three Richard Hudson, by his will, dated the 9th of July, children, Charles Alfred, Diana, and Octavius, whom 1813, made the following bequests:-"I also give he afterwards appointed his executors. To a fourth to my brothers and sisters, John Hudson, Benjamin child he made the following bequest :-"I give and Hudson, Elizabeth Greatwick, Eleanor Alcock, and bequeath to my daughter, Harriet Watson, 1,000l. Ann Jones, or to such of them as shall be living at out of my Three-and-a-Half per Cent. Reduced the time of my decease, the sum of 2501. each. All Stock, and also 70l. a year during her natural life, to the rest, residue, and remainder of my estate and be paid to her in four quarterly payments after she ateffects, whether real or personal, I devise and be- tains the age of twenty-one years and six months; queath unto my executors, hereinafter named, upon which two sums I direct and devise to be under the trust, to permit my wife, Catherine Hudson, to re- trust of my executors, namely, not to permit my said ceive the rents, profits, dividends, and annual pro- daughter to assign her said annuities to any one; and ceeds thereof to and for her own sole use and benefit the interest arising from the 1,000l. as it becomes due, during her life-her own receipt to be a sufficient and to pay the same to her for her life into her own hands, proper discharge for the rents and dividends to be re- and her receipt shall be a sufficient discharge, even if ceived by her; and from and immediately after her she marry; and at her decease, upon trust to divide decease, upon trust, to sell my freehold house in Ox-the principal sum of 1,000l. equally between and ford-street, and also my leasehold houses, by auction; amongst all and every her child and children." And and it is my desire that Mr. Edward Abbott be em- the testator also gave his daughter Harriet 107. a ployed as auctioneer;—and to convert the whole of year till she attained twenty-one years and six months. my estate and effects into money, and to distribute After making a bequest to another daughter, and apthe same in equal shares and proportions (after first pointing executors and trustees, he proceeded thus:paying thereout the sum of 250l. to each of my I devise all my money concerns in the funds, or in brothers and sisters then living) between and amongst notes, bonds, or estates mortgaged to me in fee, each and every of my brothers and sisters, and such whether freehold or copyhold, unto my said execuof their children as shall be then living; the parents tors, their heirs and assigns, it not being my intenand children to be classed together, and to share in tion that my heir-at-law may be in any way conequal proportions" (the children of Mary Hill are not cerned therewith;" and he directed his executors to included.) The testator appointed his wife, Ralph pay all the annuities and legacies. The testator died Lonsdale, and John Marks, his executors. At his in December 1829, his daughter Harriet being then death, the two brothers and three sisters named in an infant, and unmarried. In 1834 she attained the the will were living; but one of the latter, viz. Eli- age of twenty-one years and six months, and was zabeth Greatwick, died without issue in the lifetime married to the plaintiff; but in 1846 she died, without what he meant to give to one by what he has given to others. I am therefore under the necessity of confining myself entirely to the words of the bequest made in favour of this particular daughter, Harriet Watson. It is an extremely ill-drawn and incorrect will; and as to my arriving at anything like a distinct and clear notion of what the testator would have done if the events which have arisen had come under his contémplation, there is not the least means afforded me of doing so. I must take the words as they are; and upon the best consideration that I am able to give to this matter, my opinion is that this bequest does not amount to an absolute bequest, but that it is a restricted and limited gift, as if the testator had said (but which he has not said), "I give the sum of 1,000l. to trustees for the benefit of my daughter, in trust, to pay to her the interest arising therefrom during her life, with remainder to her children after her decease." If you put the words used by the testator together, it really comes to this, that the testator has given and bequeathed to his daughter, H. Watson, a sum, which he bequeaths to her under the trusts of his executors, with such restrictions, and so far and no further than I have mentioned; and not professing to think it can be made any clearer than it is at present, my opinion is that it is a restricted gift, and the next of kin do not take. Allow the demurrer, without costs. Kindersley asked for the costs of the suit out of the fund, but this was objected to by the other side. The MASTER of the ROLLS would not give costs out of the fund in a case on demurrer; that could only be done when an answer had been put in, and the cause brought on to a hearing in the regular way. Thursday, June 3. 7 Bear. 586; 6 Law T. 234, or affect the construction there put upon the words "the last of the answers." General observations on the cases of Forman v. Gray, (suprà, p. 2), and Arnold v. Arnold (suprà p. 70), as to the distinction between discharging orders of course obtained at the Rolls for irregularity, and discharging them for impropriety, considered with reference to the merits, and as to the mistakes commonly made upon that subject. The Master of the Rolls can only consider the irregularity of the order, unless the cause is attached to the Rolls Court; but the Lord Chancellor has a wider jurisdiction, and may, on appeal to him from the Rolls, consider both grounds of discharge. Shapter, in this case, moved, on behalf of the defendant, Sir Thomas Reynell, to discharge the bill for want of prosecution, under the 114th of the New Orders of May, 1845. The answer of the defendant now moving was filed on the 25th of February last, and the four weeks since it was to be deemed sufficient had therefore expired, and accordingly the defendant was clearly entitled to move. Kindersley admitted that the four weeks had expired since the answer was to be deemed sufficient, but nevertheless he would ask the Court for further time: the last of all the answers was only got in on the 2nd of June. Walpole (amicus curia) said, the Lord Chancellor was reported to have overruled the case of Dalton v. Hayter, in the late case of Arnold v. Arnold, on appeal from this Court. The MASTER of the ROLLS.-Oh, no! it is a mistake. Kindersley.—It is generally understood among the Profession that Dalton v. Hayter was affected by the Lord Chancellor's decision in Arnold v. Arnold, and I am glad that it has now been mentioned. Shapter.-According to the report of Arnold v. Arnold in the Jurist, The Lord Chancellor did differ from the view taken in Dalton v. Hayter. The MASTER of the ROLLS.--Oh, no! I know all about it. I had occasion to communicate with the Lord Chancellor immediately after the case of Arnold v. Arnold was before him, and bis Lordship then told me what he had been doing. The case went up from this Court where the mere question of irre gularity was considered; and the Lord Chancellor, after considerable discussion, made the suggestion that the word "irregularity" should be struck out, to which the parties consented, and then his Lordship discharged the order on the merits, as I should have done in the same circumstances. Shapter. The report of Arnold v. Arnold in the Jurist, certainly does advert to the last of the answers on the file. because, the cause being before myself, I had jurisdiction to take into consideration both the regularity of the order and its impropriety, on the ground of the conduct of the parties. It so happened, the very same day, the case of Arnold v. Arnold came before me. That was also a motion to discharge an order to amend, for irregularity: but the cause was attached to another branch of the court; and as I could do nothing more than consider the mere question of irregularity, I was obliged to refuse the motion. The case then went before the Lord Chancellor, and after much discussion his Lordship suggested to the parties to amend, by striking out the word "irregularity;" and the parties having consented to do so, his Lordship made an order discharging the order of course on the merits, as his jurisdiction enabled him to do, and as I should have done, had my jurisdiction been co-extensive. But if I were to take into consideration any thing more than the mere regularity or irrregularity of orders of course obtained at the Rolls in causes attached to other branches of the court, I should soon draw here all the motions on orders of course, and so govern all the practice of the other courts. It is therefore quite necessary carefully to distinguish the irregularity and the impropriety of orders in causes attached to other branches of the court, the former alone being within the jurisdiction of this court. Kindersley. In this particular case, the original bill of Reynell v. Sprye was filed on the 3rd of April, 1846; and on the 29th of August following, the answer was put in. On the day before, the defendant in the original bill filed a cross bill against the plaintiff and a third party; and on the 25th of February last the plaintiff in the original bill answered the cross bill, and on the 2nd of June the other defendant also answered. On the 22nd of April, however, the plaintiff in the cross suit was obliged to change his solicitors, and to retain new solicitors, who are now busy preparing amendments, which are very voluminous. [The MASTER of the ROLLS.-Have you an affidavit as to the amendments? The time having expired as to this defendant, you must shew merits on sufficient evidence.] We have an affidavit, and the new solicitors swear that they only came in to the cause on the 22nd of April, and that they are doing all they can to prepare the amendments, which they say are so voluminous as to require a month's time to enable them to get them ready, and that they cannot do so in less time. exhibits in this cause, and state of whose handwriting the same respectively are or is, as you, for any and what season, or by any and what means, know or believe." To so much of these two interrogatories as called on witness to produce any correspondence in writing with reference to the settlement to be made on the marriage of J. C. B. Trevanion and Charlotte his wife, on the part of the said J. C. B. Trevanion and J. T. P. B. Trevanion, the witness demurred to so far as regarded the production of any letters which he received relating to the aforesaid matters from the said M. T. Brereton and C. Trelawny, or either of them; and for cause of demurrer said, that such letters did not refer to any particular estates to be settled on such marriage; and that he received such letters in the character of confidential solicitor to the said M. T. Brereton and C. Trelawny, and he there. fore submitted to the Court as to whether he ought to produce the same. The 29th interrogatory was the following:—“* Are ar is there, or not, in your possession, enstody, or power any books or book, papers or paper, containing any enties or entry relating to or connected with the settlement made, or intended to be made, on the part of the said J. C. B. Trevanion and J.T. P. B. Trevanion, or either of them, on the marriage of the said J. C. B. Trevanion with the said C. Trelawny? If yea, produce and identify the same, to be marked as exhibits or as an exhibit in this cause, and point out each and every such entry to be marked as an exhibit in this cause. To whom did, and to whom do or does such books, and papers, book, or paper belong, and by whom were or was the same kept, and from whose custody or possession are the same respectively, or is the same produced? Of whose hand-writing or respective hand-writings are or is each and every or any or either of such entries respectively as you, by any and what means, or for any and what reason, know or believe, and where and when, and on what occasions or occasion were they respectively or it made?" To so much of this last interrogatory as required witness to produce and identify the books or papers containing any entries or entry relating to or connected with the settlement to be made on the part of the said J. C. B. Trevanion, and J. T. P. B. Trevanion, or either of them, on the marriage of the said J. C. B. Trevanion with the said Charlotte Trelawny; and towards the end of the said interrogatory the witness demurred, and for cause of demurrer, said that "the book or ledger contained particulars of confidential matters between himself and his clients; and he therefore submitted to the Court whether he was bound to produce the same." The MASTER of the ROLLS.-Well, let the motion stand over till the first day of the sittings after Term-a much less time than a month; but you have said enough to induce me to grant you so much indulgence, and to prevent me from making the order to dismiss now. Mr. Shapter, however, was quite The MASTER of the ROLLS.-In Dalton v. Hay-regular in coming as he has done. ter I did not decide that "last of the answers 11 meant the last answer on the file, but the very reverse. It is strange that such a misconception should VICE-CHANCELLOR OF ENGLAND'S Herring v. Clobery, 1 Ph. 91. prevail, when it is stated, and appears on the very face of the report, that in no case have the words in question that meaning. As to motions to dismiss, a defendant is not to be prevented from moving because another defendant has only just put in his answer: a defendant may move whenever his own answer becomes sufficient, irrespective of any other defendant; but then the plaintiff may be able to shew cause to the Court why the motion should not be granted; and if he is able to do so, the Court, with whom it is discretionary, and not imperative, to grant the motion, will give the plaintiff time, (a) on the ground of the merits so shewn at the time the motion is made. COURT. Tuesday, April 27. WALSH v. TREVANION. Witness-Interrogatories-Demurrer. A witness, who was a solicitor and had been engaged in preparing a marriage settlement, in his examination demurred to such parts of interrogatories as required him to produce certain correspondence in writing, and documents, on the ground of professional privi. lege. The demurrers were overruled, as they did not contain any distinct statement that such correspondence was in itself confidential, or that the books or Kindersley.-I am glad the matter has been men- documents contained matters of confidential commutioned, as there was undoubtedly an impression pre- nication with reference to the subject of that identivailing that the decision in Dalton v. Hayter was cal interrogatory as between himself and clients. affected by that of the Chancellor in Arnold v. Arnold. A settlement bad been made in the year 1827 upon The MASTER of the ROLLS.-There is not the the marriage of John Charles Bettesworth Trevanion least ground for it; but probably some part of the and Charlotte Trelawny, and the present suit was inmistake may have arisen from the mode in which the stituted for the purpose of rectifying that settlement. cases of Forman v. Gray and Arnold v. Arnold were The gentlemen who were professionally employed in disposed of in this court. In Forman v. Gray, a preparing the settlement on the part of Miss C. Tredefendant whose answer was to be deemed sufficient lawny and her mother, Mary Trelawny Brereton, were served notice of motion to dismiss for want of prose-Messrs. J. and W. Burley. The former of these gencution, there being then one defendant who had not tlemen, Mr. J. Burley, having been examined as a auswered; whereupon the plaintiff obtained the witness for the plaintiffs in the suit, some of the incommon order to amend before the motion to dismiss terrogatories exhibited to him were as follows:-The was actually made: and the defendant then moved to fifteenth interrogatory: "Was there any correspondischarge the order so obtained, for irregularity; but dence, and whether or not in writing, in reference to the order being quite regular, the defendant's motion the settlement to be made on such marriage on the failed. It so happened, however, that the cause was part of the said J. C. B. Trevanion and John Trevanion attached to this court, and the defendant afterwards Purnell Bettesworth Trevanion (father of J. C. B. renewed his motion to discharge the order, not, as Trevanion), or either, and which of them? If yea, probefore, on the ground of irregularity, but on the duce the same and identify the same, and let them or it ground of its being a fraud on the Orders of the be marked, if not already marked, as exhibits or Court; and it being clearly shewn to be a case of an exhibit in this cause, and state of whose handfraud, I discharged the common order to amend on writing the same respectively are or is, as you, for the merits so appearing. This I was enabled to do, any and what reason, or by any and what means know and believe." The 17th interrogatory: "Was there or not any, and if yea, what correspondence in writing between any persons or person, and whom, in relation to the said exhibit Z, or the property therein contained, described, or referred to, after the said exhibit had been written? If yea, produce the same; and, if produced by or to you, identify the same, and let them or it be marked, if not already marked, as (a) An order of course to amend, obtained after a notice of motion to dismiss, and before the motion is made, is no longer an answer to the motion, on payment of costs by the plaintiff. By a General Order of the 13th of April last,-"The plaintiff is not to obtain an order of course for leave to amend his bill after a defendant being entitled to move) has served a notice of motion to dismiss the bill for want of pro scoution." Stuart and Beavan, in support of the demurrer, contended that witness was not bound to produce the letters and other documents in question, inasmuch as they fell within the principle of confidential communi. cations. Cases cited, Carpmael v. Powis, 1 Ph. 687; Bethell and Willcock, on the other side, contended that there did not appear from the demarrer any reason to consider that the letters were confidential. Cases cited, Duffin v. Smith, 1 Myl. & K. 109; Parkhurst v. Lowton, 2 Swan, 202; Jones v. Pugh, 1 Ph. 96. Stuart, in reply, cited Strathmore v. Strathmore, 1 Dan. Ch. Prac. 926. The VICE-CHANCELLOR.-The witness ought to have made it clear that, according to his own construction, the subject-matter of the communications themselves was altogether of a confidential nature. Now the only question to be settled is, whether he has sufficiently stated that in these demurrers. But what does he say-"To so much of the fifteenth and seventeenth interrogatories as call on me to produce any correspondence in writing, with reference to the settlement to be made on the marriage of J. C. B. Trevanion, and Charlotte bis wife, &c. I demur as far as regards the production of any letters I received with reference to the aforesaid matters;" which amounts to giving a partial discovery. And he says Such letters do not refer to any particular estates to be setted on such marriage, and I received such letters in my character of confidential solicitor." This may indeed be true, and yet these letters may not at all contain in themselves any thing that is confidential. I think that is a fatal defect, when this statement is made the basis of an objection to answer. Again, with respect to the twenty-ninth interrogatory, the witness says "The said book or ledger contained particulars of confidential matters between himself and his clients." But he does not allege that they contain matters of confidential communication relating to the subject of this interrogatory, as between these two ladies, or either of them, and himself. I must therefore overrule both demurrers, but without prejudice to the witness demurring again, VICE-CHANCELLOR ENIGHT BRUCE'S COURT. April 26 and 27. Debtor and Creditor-Composition deed. proceedings; the case need not have gone to sessions at all. Thinking, therefore, that this practice, so far as it has extended, ought to be stopped, and as it does happen that the order is not before us, in answer to the distinct application which was made to allow it to be brought up, I think that we ought not to do so. Then, as to the case itself, I believe that before this question of practice arose, we had all read the examination, without entertaining the least doubt that it is good. There never was a case more free from doubt, unless we are to make presumptions against the order. [His Lordship then read the examination.] What Hartpury is meant? The particular locality, so called? Clearly, it can only mean that Hartpury which is capable of receiving paupers under an order of removal, and of giving monthly relief. Can there be the least doubt that the authority of the parish is referred to? Then it is said that the examination does hot shew that it was parochial money that was given; but is that ever stated? Surely if it is said that the Jarish gives it, that is enough. PATTESON, WIGHTMAN, and ERLE, JJ. conenrring. Rule discharged. Saturday, May 29. REG. . THE OVERSEERS OF THE SEVERAL PARISHES OF THE OLDHAM UNION. Election of guardians-Appointment of returning officer -Order of commissioners. This Court made absolute a rule for a mandamus to compel the overseers of the several parishes of an union to assemble for the purposes of appointing a returning officer, to act at the election of guardians for such union, pursuant to the order of the PoorLaw Commissioners to that effect-that order not having been removed into this court by certiorari. A rule nisi having been obtained for a mandamus commanding the overseers of the several parishes in he Oldham Union to assemble, and proceed to the election of a barrister to act as returning officer at an election of guardians for that union, pursuant to an order of the Poor-Law Commissioners to that effect, Cobbett now shewed cause. This order of the Poor-Law Commissioners is bad. They have no authority to issue such an order to the overseers. [Lord DENMAN, C. J.-But must not their order be obeyed, until it has been removed by certiorari, and declared invalid by this Court? (Stat. 4 & 5 Wm. 4, c. 76, s. 105.)] Not if it is made without juris diction. -- Tomlinson (who appeared in support of the rule). The object of the Legislature was, to prevent the occurrence of any interval during which the poor could not be relieved; and hence the provision that all orders are to be obeyed until quashed by this Court upon certiorari. PATTESON, J.-I recollect a case where the commissioners had made an order upon overseers to collect certain statistical information, which, of course, was bad, as it had nothing to do with the administration of the Poor-Law; but that order was brought up by certiorari. Lord DENMAN, C. J.-I am clearly of opinion that the Poor-Law Commissioners have full power to do any act that relates to the carrying of the PoorLaw Amendment Act into effect for the purpose of affording relief to the poor. They have exercised their power in this instance, and that which they have done can only be questioned in a direct manner on the removal into this court of one of their orders by certiorari. An order of the Poor-Law Commissioners, while it remains unquestioned by certiorari in this court, is, in some cases, equivalent to an act of the Legislature; and unless removed here and quashed, it must be obeyed. It will, of course, be bad if on the face of the order itself it should appear to have been made in a matter over which the Poor-Law Commissioners have no jurisdiction, and if Mr. Cobbett means to contend that such is the case in the present instance, the Court will hear him on that point. Cobbett. I cannot contend that a returning officer, though not expressly named, is not contemplated in the provisions of the Poor Law Amendment Act; but clearly that Act gives no authority to order the overseers of different parishes to assemble for the appointment of such an officer. The 15th section only gives the commissioners a general power to make rules and orders for carrying the Act into effect; the 40th section provides for the election of guardians, and requires the votes to be collected and returned as the commissioners shall direct; but the overseers of the different parishes cannot be required to perform this function; the Act gives the commissioners no such authority over them. This order attempts to make them union officers instead of parish officers. The 46th section authorises the commissioners to direct the overseers of any parish or parishes to appoint paid officers; but that clause does not touch the present case. Tomlinson contrà, was not called upon. Lord DENMAN, C. J.-It does not appear to me that there is any question as to this being a matter connected with the general execution of the Act. Then that mode should be considered by this Court incorrect, when properly brought before us, the order would be set aside; but "unless and until the same shall be declared illegal by this Court," it continues in full force. PATTESON, J. concurred. COLERIDGE, J.-I agree in the decision of the Court upon this case, but I entertain considerable doubt as to the preliminary point. I have no doubt as to the intention of the Legislature; but considerable doubt whether the words carry that intention into effect. The words ought to be quite clear in order to take away a common-law right. ERLE, J.-I think that this decision is correct upon the limited view that the Poor-Law Commissioners have power to regulate the election of guardians; and upon the terms of the 40th section it seems clear to me that they have authority to appoint a returning officer. If, then, they may direct the overseers of a particular parish to appoint a return. ing officer at the election of guardians for that parish, I cannot understand how it would be more out of their jurisdiction to order the overseers of several parishes to assemble for the purpose of appointing a returning officer at the election of all the guardians of the union. As to the certiorari, what I understand is, that no informality can be taken advantage of, unless the order be brought into this court by cerRule absolute. tiorari. Monday, May 31. Re THE CLERKENWELL IMPROVEMENT COM MISSIONERS. Notice of intention to take lands under local ActAssessing compensation-Mandamus. The 3 & 4 Vict. c. 112, authorises certain commissioners to take lands for improvements in the neighbourhood of Clerkenwell, and contains a clause providing for the summoning of a jury in case of disagreement. It also contains a clause providing that after notice of the intention of the company to take property, the owner and occupying tenant are to deliver an account of their claims within a month: Held, upon the construction of these clauses, that al. though the latter had not been complied with, the commissioners might, after notice of their intention to take lands, be compelled by mandamus to summon a jury to assess the price. A rule nisi had been obtained for a mandamus, commanding the commissioners, under the Clerkenwell Improvement Act, 3 & 4 Vict. c. 112, to issue their precept to the sheriff to summon a jury for the purpose of assessing the compensation to which a Mr. Tawell was entitled for property, with regard to which he had received a notice that it was the intention of the company to take it for their works. this Act of Parliament provides for the summoning Kennedy now shewed cause.-The 47th clause of of a jury only when the parties cannot agree, and when the claimant is entitled to compensation; but the 46th section makes it a condition precedent that one month after notice by the commissioners the claimant shall send in to the commissioners an account of his claim, and this has not been done. In R. v. The Hungerford Market Company, 4 B. & Ad. 327, and all the similar cases, the Acts of Parliament contained no such limitation of time as that which is imposed by the 46th section of this Act. Pashley, contrà, was not called upon. Lord DENMAN, C. J.-The latter part of the 47th clause removes all doubt; because it says generally that in any case in which an agreement cannot be made, the jury may be summoned. The other Judges concurring, Rule absolute. Ex parte H. J. SMITH. Validity of order of commitment under 8 & 9 Vict. c. 127 (The Small Debts Act). made by one of the Commissioners of Bankrupts Pashley moved for a certiorari, to bring up an order under 8 & 9 Vict. c. 127, for the commitment of H. J. Smith for forty days, in order that it might be quashed. The applicant had been summoned before one of the Bankruptcy Commissioners, to shew cause why he should not pay 191. 198. which had been recovered against him in one of the superior courts; and upon the hearing of that summons, an order for the payment of the debt by instalments of 11. per month was made. All that was due upon that order had been paid on the 15th of March last; but on the 19th a letter was sent to Mr. Smith, informing him that his creditor had got a warrant for his commitment, and should execute it unless he paid the costs of obtaining it. That warrant was dated Feb. 8, and must have been obtained upon some default in pay ment of one of the instalments. He submitted that that order of commitment was bad, because it did not appear that the applicant had been summoned to shew cause why he should not be committed. May 29 and June 1. ROBSON v. Oliver, Suspension of action-Notes payable on demandExcuse for presentment. In assumpsit for goods sold and delivered, the defendant pleaded that he delivered to the plaintiff certain promissory notes of A. B. payable on demand, and that the same were not presented within a reasonable time. The plaintiff replied, that at the time of such delivery A. and B. were bankrupt and insolvent, and unable to pay their debts, although this fact was unknown to him, the plaintiff, and that within a reasonable time after such knowledge, and within reasonable time for presentment, he returned the notes to the defendant: Held, upon demurrer, that a sufficient excuse for the non-presentment appeared, and that the plaintiff's right of action revived upon the notice of such facts being given to the defendant within a reasonable time after the time for presentment. A plea that a note payable to bearer, and on demand, was given for and on account of the debt, and that the same was not duly presented, is prima facie a good answer. Assumpsit for goods sold and delivered: the fourth plea was, that the defendant delivered to the plaintiff, for and on account of the debt, certain promissory notes of Messrs. Latham and Co. bankers, at Dover, payable to bearer on demand, and that the plaintiff had not presented them in due time. The fifth plea was similar, but stated that the defendant had not due notice of dishonour. The plaintiff replied to the fourth plea, that at the time of the delivery of the notes, although without his knowledge, the said bankers were bankrupt and insolvent, and unable to pay their debts; and that if the notes had been presented they would not have been paid, and that after so taking the notes, and within a reasonable time, for presentment, and within a reasonable time after these circumstances had come to his, the plaintiff's, knowledge, he gave notice thereof to the defendant, and requested him to receive back the notes. dant demurred to this replication, as not shewing any sufficient excuse for non-presentment. To the fifth plea the plaintiff replied in a similar way, and the defendant rejoined that the notice was not given within a reasonable time for presentment; to which the plaintiff demurred. The defen Rew, for the defendant. In addition to the special grounds of objection that there is no sufficient statement of the position of the makers of the notes, so as to shew that presentment would have been fruitless, the defendant contends that the holder of a note payable, like this, on demand, is bound absolutely to present. (Storey on Bills, 476; Chitty on Bills, 352; Mole v. Brown, 4 B. N. C. 266; Bowes v. Howe, 6 B. & C. 373.) 16 East, 112; S. C. 1 M. & S. 555; Camidge v. Allenby, Cowling, contrà.-The pleas are substantially bad, as delivery of a promissory note, payable on demand, for and on account of the debt, is no suspension of the right of action, the debtor so delivering being no party to the notes. There is no express or implied agreement to present. [ERLE, J.-Is it not now settled that such a plea is good?] Still, the cause given by the replication is sufficient. There is an ample statement to shew that presentment would have been useless, and then the notice of the facts was given to the defendant within such time as would have sufficed if presentment had been actually made and payment refused. There is no laches shewn here, which was the ground of the judgment in Camidge v. Allenby, 6 B. & C. 373, as explained in Henderson v. Appleton. (See Turner v. Stones, 1 Dowl. & L. 126; Price v. Price, 16 L. J. 9 Ex. was also cited.) Lord DENMAN, C. J.-I am not quite without doubt as to the allegation in the plea with reference to the allegation of reasonable time after the time for presentment had expired, when circumstances excuse inability to pay, that should be communicated imme presentment. It may be that, where there is a known diately. But it does not arise here, as it is admitted that it was a reasonable time upon the facts. The replication I consider clearly good. The statement that the party was bankrupt and insolvent, and unable to pay, is sufficient, for what more conclusive reasons could be given. PATTESON, J.--This is an action for goods sold and delivered. The plea is that the defendant delivered certain promissory notes of a banker, payable to bearer, for and on account of the debt, and that the same were not presented within a reasonable time. I take it to be now settled, that giving a promissory note either of the debtor or of any other person (for Price v. Price, 16 L. J. 99, Ex. has no bearing upon the present question), either on demand or otherwise, it is incumbent upon the person who so takes it on account, to present it in proper time, just as much as upon a regular indorsement. The plea, therefore, is good. The replication says that the notes were not presented, but the reason was, that the bankers were, at the time the notes were received by the plaintiff, bankrupt and insolvent, and unable to pay, although Pashley moved for a writ of habeas corpus in this this was not known to the plaintiff, and if they had Ex parte KINNING. this order is the mode which the commissioners have case, on the same ground. thought proper for carrying their object into effect; if | Rule nisi. Rule nisi. been presented they would not have been paid; and after taking the notes, and within a reasonable Osborne appeared for the petitioners. The VICE-CHANCELLOR.-It is quite clear the Railway Company must bear these costs. As they insisted on purchasing the land, it was but fair they should pay all the expenses incidental to the proceeding; I shall therefore make the order according to the prayer of the petition. Monday, May 31. STEDMAN U. POOLE. Will-Construction - Clause against anticipation— Feme covert-Lease-Sub-lessee-Notice. When a bequest of property to a married woman to her separate use for life directs that the property shall "not be sold or mortgaged," these words amount to a clause against anticipation; and where the married woman joined her husband in granting a lease for valuable consideration, for a term dependant upon her life, the Court set it aside on the application of the wife. A married woman joining her husband in a lease is notice of the title of the wife to sub-lessees, and they are bound by any defect in their lessor's title in consequence of her want of power to make the demise. This was a suit by the grantor of a lease by her next friend to have the lease declared void, on the ground that the demise was inconsistent with the interest the grantor had in the property. Thomas Scrooby, by his will, bequeathed his leasehold estates, situated in the parish of Paddington, to his daughter, Mrs. Steedman, one of the plaintiffs, "for her whole and sole use during the term of her natural life, and free from the control of her present or any future husband, and not to be sold or mortgaged, and after her decease to her heir or heirs; and provided her child or children should die before her, then she, at her decease, may leave them to whom she pleases for the remainder of the term." Testator's daughter was married to Thomas Steedman, at the date of the will, and death of the testator. The plaintiff, with her husband and defendant, had various money transactions together, up to the year 1840, when the plaintiff and her husband, being indebted to the defendant, he pressed for payment of what was due; whereupon the plaintiff joined her husband, and executed the lease in question to the defendant, whereby, in consideration of 3201. Steedman and his wife demised certain houses situated at Kemp-place, Paddington, to the defendant for a term of twenty-six years, should Mrs. Steedman so long live, at an annual rent of 107.: these houses formed part of the property bequeathed to Mrs. Steedman under the will of her father. Mrs. Steedman, by her next friend, now sought to have that lease declared void. Romilly and Southgate, for the plaintiffs, contended that the effect of the words used by the testator amounted to a clause against anticipation; and should the Court be of that opinion, there was no alternative but to declare the alienation of this property void. Wood, Fooks, and Tremenhere, for the defendants, being the lessee and his under-lessees, contended that the Court could not make a decree as prayed by this bill, for the plaintiffs were attempting a gross fraud upon the defendant (who took the lease) and his under-lessees. There was a valuable consideration here given: Mrs. Steadman was entitled to her separate use, and joined in the lease; and even though the Court should be inclined to support the plaintiff as against the defendant Poole, the lessee, there could be no ground for injuring the interests of the aub-lessees, who were innocent parties-who had no notice of the interest Mrs. Steadman had in the property; and finding her name joined with her husband was a presumption that she was justified in joining in the grant of the lease, and ought to prevent her work ing an injury against them by avoiding their lessor's title, which appeared to have been created by her own act. Common Law Courts. COURT OF QUEEN'S BENCH. LANE v. RIDLEY.(a) Setting aside special demurrers-Appeal from decision of judge. This Court will discountenance applications to review the decision of a judge, setting aside a demurrer as frivolous. Willes, contrà, referred to Co. Litt. 211, a. Lord DENMAN, C. J.-The defendant seeks to relieve himself from payment of 1,300l. which he has received, by saying that his own deed is void; we will help him to be honest. Whatever the intention was when instructions were given for the deed, it appears that the parties, when they executed it, chose only to fix the year for payment, and to leave the day uncertain. There is a passage in Co. Litt. which shews what must be done in such case. Reasonable notice must be given of a day within the particular year; and if the defendant does not pay then, the breach will be complete. The duty to pay, therefore, is sufficiently disclosed by the terms of this covenant; and there must be judgment for the plaintiff. Judgment for the plaintiff. In Easter Term Bramwell moved for a rule nisi to rescind an order made by Mr. Justice Erle, setting aside a demurrer as frivolous. It was an action upon a bill of exchange by indorsee against acceptor. The plea was that the bill was accepted for the accommodation of the drawer, and that after it became due the drawer paid the full amount to the plaintiff, and that the plaintiff held the same without consideration. The A plaintiff replied that the bill was not accepted for the accommodation of the drawer, nor did he pay the said moneys to the plaintiff, in full satisfaction and discharge, in manner and form. The similiter was added by the plaintiff, and the issue delivered with notice of trial. To this plea the defendant demurred, for duplicity, and returned the issue; but upon a sum. mons being taken out before Mr. Justice Erle, his lordship set aside the demurrer as frivolous, and ordered the notice of trial to stand. It is submitted that this was a good ground of demurrer, as there were not two defences set up by the plea. He might be suing as trustee. He cited Reid v. Furnival, 1 C. & M. 538; Wiffen v. Roberts, 1 Esp. 261. The order made is also bad, as ordering the notice of trial to stand: it should have been that for judgment to be signed. ERLE, J.-The meaning of the ordinary order made is, that unless the notice is allowed to stand, judgment is to be signed. It gives the defendant the option. Cur. adv. vult. DOE dem. HARRIS and OTHERS v. TAYLOR. Devise-Estate tail by implication. testator devised lands, &c. "to my son A. T. for and during the term of his natural life, and from and after the decease of my son A. T. then to the first son of my said son A. T. lawfully issuing, and for default of such first issue, then to the use and behoof of the second, third, fourth, fifth, and all and every other son and sons, the heirs of his or their bodies. Held, that the first son of A. T. took an estate tail. This was an action of ejectment to recover two pieces of freehold land in the parish of Mickleton, in the county of Gloucester; in which a verdict had been found for the lessors of the plaintiff, subject to the opinion of this Court upon a special case. The question turned upon the construction of the will of the defendant's grandfather, of which the material parts were as follows: "I give, devise, and bequeath all that my two closes or enclosed grounds lying and being in the parish of Mickleton, in the county of Gloucester; the upper close, commonly called or known by the name of Phipp's Hole;' the lower close, commonly On a subsequent day judgment was delivered by called or known by the name of 'Hunk's Walk,' Lord DENMAN, C. J.-Mr. Bramwell moved with my house I now live and dwell in, and all apfor a rule to rescind an order of Mr. Justice Erle, purtenances belonging to my said closes and house, for setting aside a demurrer to a replication for to my son, Albright Taylor, for and during the term duplicity, as frivolous. But according to Pursford of his natural life, so that he pay all my just debts v. Peek, 9 M. & W. 200, the plea was objection- and funeral expenses, and legacies hereinafter menable for duplicity, and the defendant has no right tioned, with and out of the real and personal estate, to demur to a replication for duplicity, which is which I do hereby charge with the payment thereof; occasioned by his own plea. (Reynolds v. Black- and from and after the decease of my son, Albright burn, 7 A. & E. 162; Pascoe v. Vyvyan, 1 D. Taylor, then to the first son of my said son, Albright N. S. 949.) And in refusing the rule which has Taylor, lawfully issuing; and for default of such first been moved for setting it aside, we feel it to be our issue, then to the use and behoof of the second, third, duty to declare our opinion that applications for such fourth, fifth, and all and every other son and sons, the rules ought to be discontinued. The Court must ob- heirs of his or their bodies, lawfully issuing, the elder viously possess a discretionary power to set aside to be always preferred, and to take before the younger frivolous demurrers, and preserve its own re- of such sons and the heirs of his body; and for decords from abuse, and the public time from being fault of such issue, then to the use and behoof of all wasted, and prevent the useless costs, to the impo- and every daughter of the body of my son, Albright verishment and ruin of the client and the ultimate Taylor, and the heirs of the body of such daughter advantage of those who ought to protect them from and daughters; and for default of such issue, then I the evil, and the delay, and the defeat, and the com-give, devise, and bequeath it to my son John Taylor, plete perversion of justice. It is manifest that this during the term of his natural life, and after his deevil would be aggravated if the exercise of a judge's cease to his first son, lawfully issuing; and for discretion is frequently to be made the subject of ap- default of such issue, then to the use and behoof peal to the Court. When the Court clearly sees that of the second, third, fourth, fifth, and all and the attempt is to secure a triumph to falsehood by every other son and sons, the heirs of his or their means of a bad plea, the possibility of doubt being bodies lawfully issuing, the elder to be always raised by arguments affords no reason for interfering preferred and take before the younger of such sons with the judge's discretion. It is sometimes said on and the heirs of his body; and for default of such this subject, that the suitor ought not to be deprived of issue, then to the use and behoof of all and every his writ of error by a summary proceeding, and if, daughter of the body of my son John Taylor and the indeed, he was barred from setting up a true defence heirs of the body of such daughter and daughters; by some supposed rule of pleading, that would be an and for default of such issue, then to remain to the oppression and injustice; but to prevent the sup-right male heir for ever. Item. I give and bequeath pression of truth and the delay of justice by a writ of to my above son, John Taylor, the house I purchased error, is one of the greatest benefits that accrue from of Walwyn Graves, esq. situate in the parish of Micklethis jurisdiction, and it is also beneficial in a pecu- ton aforesaid, with all appurtenances thereunto beniary point of view to both parties. In this case we longing, for and during the term of his natural life. think the application to rescind the order ought to Item.-I give and bequeath to my said son, John be refused. Rule refused. Taylor, the interest of 4001.; that is to say, 161. a year, to be paid quarterly during his natural life, and after his decease to the heirs of his body lawfully issuing, to be paid by my son Albright Taylor and his heirs at the end of twelve calendar months after my decease; and in case my son John Taylor die without lawful issue, I give and bequeath the abovenamed house and 400l. to my son Albright Taylor and his heirs. Item.-I give and bequeath to my son John Taylor my four-post plod bed, bedstead, and bangings, with the small swing glass in my further room. Item.-I give him half of all the linen I die possessed of. Item.-I give him my oak chest of drawers and my smallest oak chest. Item.—I give him my oak dining-table now standing in my kitchen. Item.-I give him two large table-spoons which are silver, and half-a-dozen silver tea-spoons and silver tea-tongs. Item.-I will and desire my son Albright Taylor to pay to my loving wife Frances Taylor 61. per year in lieu of her dowry; and also the interest of 100.; that is to say, 47. per year during the term of her natural life, and to be paid at the end of twelve calendar months after my decease; and in case she live with my son Albright Taylor, he to maintain her in lieu of her legacy. Item. She is to have a being in my house during her life, and the use of the goods. Tuesday, June 1. GODDEN v. Watts. Deed-Blanks. A covenant to pay money on the -day of The VICE-CHANCELLOR (after reading the clause above set forth from the will).-It is clear the property is given to Mrs. Steadman, subject to two qualifications: first, that it should be free from her husband's control; and secondly, that she should not have the power of alienating it. It is therefore clear she was given no, power to make this lease. As to the argument urged on behalf of the defendants, the A.D. 1845, is not void for uncertainty. under-lessees, consider the rule of law to be, that Covenant.-The declaration stated the covenant where a person does not know that A. B. has any as being to pay 1,3007. in and during the year interest in a property, he is not bound to inquire 1845. The defendant craved oyer, and the covenant, whether he has or not; but if he does know that as set out, was to pay the sum of 1,3007. on theA. B. has some interest, he is bound to inquire what day of A.D. 1845. To this there was a genethat interest is. In the present case, the circum-ral demurrer. stance that the wife had joined her husband in granting the lease to the defendant, was evidence that she had some interest in the property, and that was sufficient to lead the under-lessees to inquiry; they must therefore bear the consequences of their own neglect, and I shall make the decree in favour of the plaintiff. Prentice, in support of the demurrer. The deed is void, for uncertainty. The parties intended some particular day as day for payinent, as was clear from Gray's-inn Dining Hall being specified as the place of payment. Attendance at that place would have avoided any damages being given. (Rowe v. Young, 2 Brod. & B. 191, per Richardson, J.; Com. Dig. tit. "Obligation," B. 5; Feiges v. Cutler, 3 Stark. 139; Coles v. Hulme, 8 B. & C. 568; Parkhurst v. Smith, Willes, 332.) (a) This was decided last Term, but stood over on account of a mis-statement in the judgment as delivered, which is now corrected. |