Page images

Thomas, T. 68
Thomas, W. 211
Thompson, H. 32
Thompson, H. J. 288
Thompson, J. 368
Thompson, J. jun. 548
Thompson, W. H. 327
Thompstone, J.93
Thorn, G. 508
Thornell, J. H. 211
Thornton, J. 68
Thornton, w. 468
Thorp, E. 368
Thorpe, R. 388
Till, D. 211
Tindall, W. sen. 259
Tippett, J. L. 428
Todd, J. 68
Toone, W. 168
Towers, S. 488
Towill, W. 32
Townend, J. & Moulding, A.

Townrow, C. 388
Towsey, W. 368
Tozer, S. J. 16
Tratt, J. 259
Tripp, G. 548
Truelock, J. 68
Truscott, c. 428
Tuck, G. 388
Tudor, C. L. 95
Tugwell, J. 1021
Tupling, w. 368, 488
Turbifield, J. 327
Turk, T. 527
Turner, C. 327

Turner, F. 368
Turner, J. 68, 259, 488
Turner, S. 488
Turner, S. F. 116
Turner, T. 368
Turner, W. 95, 488
Turrell, J. 408
Turton, G. 508
Turton, W. 508
Tuthill, J. 508
Tutton, S. 488
Tuxford, P. J. 428
Tyee, 408
Tymms, W. R. 347
Unwin, C. 488
Upperton, J. 388
Upton, J. 48
Urst, G. W. 288
Usherwood, J. 428
VERLEY, W. 448
Vessey, T. S. 16
Vexey, J. 488
Vickery, L. 48
Viney, J. 488
Voss, D. 240

Wakeley, C. 211
Wakeling, T. 508
Walker, A. sen. 488
Walker, S. 548
Walker, T. 95
Walker, W. 308
Waller, R. T. 527
Wallis, R. W. 192
Walmsley, J. 68, 163 -
Walters, P. A. 548
Walton, J. 508
Wand, W. 192
Warburton, S. 16
Ward, G. 192
Ward, J. 163, 192, 211, 259
Ward, P. 488
Waring, J. 548
Warne, J. 468
Warraker, J. 408
Warren, C. 259
Warren, L. 347
Warren, W. 48
Washington, G. 163
Waterhouse, R. 95
Waterman, C. 288
Watkins, -. 144
Watkins, A. 68
Watkins, c. 527
Watson, G. 259, 408, 488
Watson, H. 163
Watson, R. 368
Watson, T. 408
Watts, F. 308
Weall, J. 259
Wearing, J. jun. 163
Webb, J. 211, 240
Webb, J. R. 527

Webb, W. 68, 288
Webb, W. G. W. 508
Weberstadt, H. R. 448
Webster, E. 408
Webster, J. E. 114
Webster, W.327
Wedge, C. 32
Weedon, I 368
Welch, W. 488
Weller, S. S. 68
Wells, J. 192
Wells, T. 250
Werdon, W. 408
West, J. 308
West, T. 32
Wheaton, J. 2!1, 327
Wheeler, G. 240, 368
Wheelwright, T. 259
Whiston, C. 163
White, H. D. 488
White, J. 116, 368
White, J. T. 388, 488
White, R. 368
Whitehead, L. 116
Whitehouse, J. 368
Whitemore, G. 408
Whitmore, J. 308
Whittle, G. 327
Wickes, P. T. 163
Wickes, T. 259
Wicks, J. 483, 488
Widdicombe, W. 259
Widdison, W. 288
Wilby, B. 347
Wild, T. G. 288
Wilde, W. 388, 408
Wilding, R. 548

Wilkes, S. 548
Wilkin, J. H. 288
Wilkinson, J. T. 468
Wilkinson, T. S. 288
Wilkinson, B. 68
Wilkinson, J. 116
Willamant, J. 68
Willetts, W. 211
Williams, A. 527
Williams, C. 527
Williams, G. P. 211
Williams, J. 32, 428
Williams, M. 0. 448
Williams, R. 163, 308, 327
Williams, S. 211
Williams, T. 32, 144
Williams, W.211
Willimett, E. G. 116
Wills, T. L. 211
Willson, J. A. 48
Willson, W. 448
Wilson, -, 408
Wilson, J. 211, 327, 468
Wilson, J. W. 259
Wilson, R. 448
Wilson, T. 368
Wilson, W. 288
Wilton, H. 240
Wilton, R. K. 211
Winch, H. 488
Wingfield, J. 48
Winn, J. 288
Winsley, J. 259
Winstanley, T. 16
Winter, J. 488
Winteringham, J. 368
Wise, J. 388

Wood, G. 488
Wood, I. sen. 508
Wood, J. 259, 529
Wood, J. sen. 68
Wood, R. 347, 488, 527
Wood, T. 548
Woodcock, I. 288
Woodcock, J. 428
Wooden, T. 163
Woodgate, W. H. 308
Woodley, J. G. 192
Woolcombe, H. 68
Wooley, R. 327
Woolf, H. 281
Woolrich, J. 508
Wooster, J. 388
Wragg, J. 488
Wray, J. 68
Wray, W. L. 192
Wrensted, J. 388
Wrey, W. L. 103
Wright, J. 288
Wright, R. 240
Wright, T. 408, 488, 508
Wright, W. 527
Wrightson, T. 68
Wynn, S. 48
Wyrill, w. 116
YATES, U. 288
Yates, W.16, 116
Yeats, A. M. 48
Yeowell, W. 548
York, L. 329
Yorke, W. B. 327
Yorston, R. 428
Young, D. 448
Young, R. 527

Waddilove, W. A. 388
Wade, J. 259, 347
Wade, w. 68
Wadlow, T. 488
Wadoy, T. C. 388
Wager, J. 448
Waghore, W. 527
Waghorn, F. 408


ap. 85

ap. 96

ap. 80

ap. 32

ap. 60

ap. 48

ap. 60

BEDS-Park of Luton Hoo, Smith and Son, ap. 52 Kent and Sussex-Lidwell's Estate at Goudhurst, Winch Middlesex and Suffolk-Forty-one Inns and Public-houses
Berks-Estate of Bagnor, near Newbury, Smith and Son, and Son, ap. 84

Trundle, ap. 85
Lancashire-Foundry at Blackburn, Salisbury, ap. 76 Northampton-Cottage and other Property, Davis and
Estates near Shrivenham, Brooks and Green, ap.

- Manor of Great Singleton, Winstanley, ap. 68 Vigers, ap. 104

Next Presentation of Hesketh-with-Becconsall, Northamptonshire--Catesby Abbey, Robins, ap. 36
Estates of Wallingtons and Balsden Manor, Smith Rawstone and Wilson, ap. 62

-Manor and Farms at West Haddon,
and Son, ap. 85

Residence on the Lake of Coniston Water, Davis and Vigers, ap. 104
Forrest Lodge, at Binfield, Chinnock, 328 of the vol. Smithson, ap. 64

and Advowson of Whittlesea,
Freehold Estate, Bishop, ap. 53,
Law Life Assurance Shares, Shuttleworth, ap. 18

Smith and Son, ap. 16
Bucks—Birkin Manor House, Smith and Son, ap. 32 Lincoln-Manor and Estate of Thornton Curtis, Scholey and Oxfordshire-Residence at Benson, Brooks and Green, ap. 36
Building Land at Slough, Robins, ap. 36
Marsden, ap. 33

Rental of 1,0001 per annum, ap. 48
Farms, &c. at High Wycombe, Smith and Son, Lincolnshire--Langrick Ferry and other Estates at Boston, Reversion to one fourth share of 13,3931. 78. 1d. Davis and
ap. 104

Vigers, ap. 104
Hampden Estate, Smith and Son, ap. 16

Montgomeryshire-Blackhall Estate, Newtown, Smout, Reversion and Life Policy, Chinnock, ap. 77
Salt-hill and Slough Farm, Smith and Son, ap. 32 ap. 69

Somerset-Stream Farm at Weare and Cheddar, Barrow,
Residence, Hedger, ap. 21

Middlesex-Building investments in London, Robins, ap. 48
Hedger, 40
Chapel in Doctors' Commons, Single, ap. 26

and Devon-House and an Estate, Richardson and
The Lodge, Wendover, Smith and Son, ap. 18

Chelsea, Houses, Smith and Son, 32

Co. ap. 62
Winkfield Lodge, Smith and Son, ap. 18

Estate at Stanmore, Brooks and Green, ap. 81

Staffordshire-Freehold Estates, Harris, ap. 18
Cambridgeshire-Farms near Cambridge, Nockolds and

near Euston-square, Houses, Smith and Son, Suffolk-Brettenham Hall, Smith and Son, ap. 16
Elliott, Smith and Son, ap. 44

Estate of Brettenham Hall, Bury, Smith and Son,
Carmarthenshire-Broadway Estate at Langharne, Smith

Farms at Harrow and Stanmore, Brooks and
and Son, ap. 52
Green, ap. 81

Farms at Debenham, Robins, ap. 36
Estates, Smith and Son, ap. 40
Fifty noble Mansions, Chinnock, ap. 50

Residences near Ipswich, Robins, ap. 36
and Glamorganshire-Quarries, Manu-

Ground-rents, Bromley and Son, ap. 29 Surrey-Building Land at Croydon, Davis and Vigers, ap. 77
factories, &c. Brown, Llanelly, ap. 16

at Homerton, &c. Moore, ap. 48

Camberwell, Ground-rents, Chinnock, ap. 12
Cheshire--Lands, &c. at Macclesfield and Rainow, Fer.

Hoxton, Islington, &c. Deben-

Dwelling-houses at Battersea, Chinnock, ap. 77
guson, ap. 46
ham and Storr, ap. 8

Elderslie-lodge, Reigate, Brooks and Green, ap. 68
Cornwall-Estates, Brooks and Green, ap. 24

-in Milton-st. Dorset-square, Chin-

Estates at Walton-upon-Thames, Nightingale, ap.
Denbeigh-Freehold Estates and Sporting Manor, Lloyd, nock, 328 of the vol.

in Paddington, Chinnock, ap. 50

House and Shop in Commercial-road, Moore, ap. 80
Devon-Advowson of Tedburne St. Mary, Hussey, ap. 84

in Paddington and Chelsea, Chin-

Houses and shops at Brixton, Davis and Vigers,
Aller Estate, near Newton Abbott, Gillard, ap. 60 nock, ap. 50
Dorset- Manor of Alton Pancras, Percy, ap. 60

in St. George's, Bromley and

Ten Houses and Shops in Commercial-road, Moore,
Essex-Farm in the Jendring hundred, Laing, ap. 53

Son, 96 of the vol.
at Walton-le-Stoken, Smith and Son, ap. 40
House in Kenton-street, Brunswick-square,

Mortlake, Villa Residence, Cain, ap. 32
New Mount Sale and Dale Hall Estate, Southmin- Brooks and Green, ap. 53

Residence, Cain, ap. 1
ster, Smith and Son, ap. 80

Houses in the City, Donne and Taylor, ap. 38

Peckham, Houses, Sing'e, ap. 26
Gloucestershire, Stapleton Mansion and Estate, B. Smith,

in Mile End, Single, ap. 26

Residence at Battersea, Chinnock, ap. 77
at Notting Hill, Humphreys and Wal.

Residences at Newington, Davis and Vigers, ap. 60
Hants-Furlington House, near Portsmouth, Smith and Son, len, ap. 76

Residence at Richmond, ap. 56
ap. 104

at Stepney and Hackney, Moore, ap. 62

Stoke Newington, Building Ground, Winstanley,
Hyde House, Winchester, Brooks and Green, ap. 40

in various parts, Moore, ap. 96
Land at Crookham, Single, ap. 26

at Westminster, Winstanley, ap. 36 Sussex-The Beeches Estate, near Brighton, Smith and
Herts Albury Hall, Smith and Son, ap. 1, 46

Italian Villas at St. John's Wood, Chinnock, 328 Son, ap. 80
Copyhold Field, at Barnet, Rae, ap. 21
of the vol.

Beechwood Farm, near Lewes, ap. 8?
High Elms Estate, near Watford, 'Smith and Son,

Keppell-street, Russell-square, &c. Residences,

Farms, Mansell, ap. 10
Chinnock, ap. 12

Wales-Estates, Smith and Son, ap. 1
Residence called Tag's End, Smith and Grover,

Leasehold premises in the City, Withall, ap. 44 Wilts-Coate Manor Estate, near Swindon, Smith and Son,

Mile End-road, Ground-rents, Single, ap. 26
Huntingdon-Estate at King's Ripton, Smith and Son, ap.

Mile End and Commercial-road, Houses and

Down Estate, near Devizes, Smith and Son, ap. 32
Shares in Cemetery Company, Moore, ap. 16

-Highworth, Tithe-free Estate, Smith and Son,
Isle of Man-Estate of Balgian, Clucas, ap. 50

Residence or Chambers, John-street, Bedford.
Wight-Shanklin House and Grounds, Butt and row, Hammond, ap. 41

Worcestershire-The Priory, Great Malvern, Brooks and
Worsley, ap. 13

Residences at North Bank, Regent's-park, Green, ap. 24
Kent-Building Land at Deal, G. Cooper, ap. 84

Hedger, ap. 24

York--Deighton-grove, Residence, Garwood, ap. 5
Estate of Petham, near Canterbury, Smith and Son,

Residence, Regent's-park, Brooks and Green, -Property, near Pocklington, Smith and Son, ap. 80

Yorkshire -- Advowson at Beverley, Smith and Son, ap. 18
Freehold Land in Old Kent Road, Winstanley, ap.

at St. John's Wood, Brooks and

- Building Ground at Leeds and vicinity, Richard-
Green, ap. 60

son, Smith, and Sadler. ap. 50
House at Town Malling, Brooks and Green, ap. 53

Stanmore Hall, Smith and Son, ap. 32

-Building Land at Leeds, Chinnock, 328 of the vol.
Houses at Eynsford, Single, ap. 26

Trade Premises in the City, Marsh, ap. 44

-Dwelling Houses at Leeds, Chinnock, 328 of the
Houses in Hampstead Road, Brooks and Green, ap.

Verulam Buildings, Chambers, Brown and vol.
Roberts, ap. 1

-Ebberston Estate, Acton, ap. 92
Mansion, &c. at Bishopsbourne, Smith and Son, ap.
Villas at Kilburn, Chinnock, 328 of the vol.

- Donner and Woodall, ap. 56

Whitechapel, Houses, Single, ap. 26
Strode Park Estate, near Herne Bay, Smith and Son,

ap. 80

ap. 2

ap. 36

ap. 40

ap. 62

ap. 80

ap. 32

ap. 60

ap. 24

-Estates at North Frodingham and Beeford, Adi.
and Surrey Cottage Residences, Moore, ap. 29 son, ap.

Uphill Farm, Folkestone, ap. 88
Norfolk-Mansion and Grazing Marshes, Butcher, ap. 76

-Manor and Estate of Kirby Misperton, Haxby,
Walworth, Houses, Winstanley. ap. 36

Watton Green Estate, Spelman and Son, ap. 101

ap. 64

ap. 37

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to, but refused to join them in the petition ; and the habit of deciding questions of retainer, and ther


Page stating that there were inany items which were not is nothing in the circumstances of this case as they

Rolls Court..

payable by them, and in respect of which they had appear on the affidavits to make it necessary to have

Vice-Chancell, Bruce's Court

Court of Rer ....

not retained Hare ; but at the same time offering to the question tried at law. If the solicitor likes, let


pay what should appear to be due to Hare'on taxa. him have a verdict in the action ; but there must be

Business of Parliament.

tion of the bill in respect of the business done for the taxation, and the question of retainer nust be left

The Debates

firm, and any other business for which the petitiouers untouched. Reserve costs.

Report on Private Bills

or either of them were liable ; and praying that an


Tithe Cominutation Average

injunction should be pranied to restrain Hare from


LAWYER-Summary ...

prosecuting the action. There was an affidavit by

Leading Cases in Mercantile Law, by A. Pulling, esq. 7

Hare, in which he stated that none of the business Practice-Next friend of married woman-Staying

Wednesday, Feb, 24.

Allnutt's Practice of Wills (continued). .

for which the bill was incurred was transacted in any


proceedinys-Changing next friend - Security for

Court; that the petitioners were present at the sale


Leading Article

of the private property of William, and signed the It is decided that it is no objection to a person becom-



contract; and that the business was done on the joint

ing the next friend of a married woman that he is


retainer of the tbree,


Kindersley and Hitchcock, for the petitioners, con-

poor, provided only he is solrent, and voluntarily


tended that they were clearly entitled to an order for

comes forward bona fide, and knowing the conse-


taxation. The retainer was denied, and Mr. Hare But where the solicitor of the plaintiff, e married wo-

quences of his act.

Mortgage Stamps

had merely said in his affidavit that the business was


man, being himself interested in part of the pro.


done on the joint retainer. [The MASTER of the

Solicitors' and General Life Assurance Society

Rolls.- Does not the Taxing-master always con.

perty comprised in her marriage settlement, made

his own cook next friend of the married woman, who

HEIRS-AT-LAW AND NEXT OF KIN, &c. WANTED.. 12 sider the question of retainer.] Yes; and the only

had instituted a suit for the purpose of enforcing


thing that can be objected is, that the petition is pre-

To Readers

sented after action brought, and judgment entered up

payment of the income of the part settled to her

Bankruptcy and Insclvency.

separate use for life, proceedings were stayed till

Solicitois' Life Assurance Office..

against William.

The Law Digest ..

Sidney Smith, contrà, contended, first, that there

security should be given for costs or the next friend



being a judgment against one of the defendants, it

Addison on the Law of Contracts
was equal to a verdict against the other two, and should be given by the plaintiff

, a married woman,

This was a motion to stay proceedings till security


there could be no taxation, according to the Act, with.

Hughes's Practice of Sales (continued)

for payment of costs, or the next friend should be

Public Sales..

out special circumstances (Re Becke and Flower,

5 Beav. 406 ; Re Whicher, 13 M. & W. 549; Hobby marriage of Mr. and Mrs. Lander, whereby cer-



In 1810, a settlement was made on the


v. Pritchard, 2 M. & W.124); secondly, that this was

tain freeholds were settled on the husband for


an application by two out of three, who did not admit life, with remainder to the children, and a certain

their liability to pay the whole bill; and there was no fund of personaity was settled on the wife for

instance of a successful application by one of several life to her separate use, with remainder, &c. and


asking taxation, and objecting to items in the bill Parr and Weston were appointed trustees. Sub-

merely as to quantura (Margerum v. Sandiford,

Equity Touris.

3 B. C. C. 233 ; Hazard v. Lane, 3 Mer: 285 ; Lock' sequently the fund was sold out, and the money

advanced to the husband, in 1815, on freebold

hart v. Hardy, 4 Beav. 224; Re Chilcole, 1 Beav: security. Parr died in 1824, and Robert H. Parr

421); and, lastly, that the action ought to go on to

became his personal representative.


try the retainer, and that William Cox ought to have

been served with the petition.

In 1826, the securities were re-assigned to Mr.

Wednesday, Jan. 27.

Lander by deed, to which Mrs. Lander was a party,

Kindersley, ia reply.


*Costs-Tuxation-Retainer-Petition by two of three statement in the petition, a partnersbip existed be.

The Master of the Rolls. According to the and the money repaid; but the bill charged that the

money was not repaid or only colourably so.

the 7th of July, 1846, the children of the marriage,
persons liable- Verdict in action without prejudice tween John, Joseph, and William Cox, and the three
to taxalion and relainer.

on going abroad, mortgaged their reversionary
partners employed Mr. Hare as their golicitor for cer-
Three partners employed a solicitor to act profession. tain purposes.

interest in the freehold to Mr. N. Gedye, a soli-
William Cox had an estate called the

citor. Mrs. Lander receiving no support from
ally in partnership matlers, the solicitor ulso trans- Cuckfarm estate, in which the other two had no in-
acted certain private business for one of them; and terest. Hare having transacted business for the of the settled fund not being paid to her, insti.

her husband, who lives abroad, and the income
in his bill of costs, made out against the three, he three in respect of their partnership, and in respect of tuted this suit against Weston and R. H. Parr,
included his charges for the private business so his separate estate for Williain, delivered his bill of by her next friend Miss Harriet Warner, to recover
transacted. The other two denied there was any costs to the firm, amounting to 1981. 13. 2d. and con- it, Mr. Gedye being the solicitor. On inquiry at
joint retainer as to that particular business, and taining items of charge against the three as well as
refused to pay that portion of the costs. The for the separate business done for William. The pe. Miss 'Warner, it was found that Mr. Gedye lived

No. 9, Saville-rov, Walworth-road, the address of

solicitor brought his action, to which the two pleaded, titioners say they never retained hiin for the separate there, and Harriet Warner was bis cook. Under

and the other allowed judgment to go by default. business, but they admit they did so for the joint bu.

these circumstances,

The two uho had pleaded then presented their peti-siness; and they ask taxation of the bill, and that
tion for taxation, and it was granted, but the soli. there may be an inquiry in the Master's office as to

Freeling moved to stay proceedings.--A clerk of
citor was allowed to go on to a verdict in his action

the defendant's solicitor had applied to Harriet War-
the retainer. Hare brought his action against the
without prejudice to taxation or the question of three for the whole amount of the bill, and he himself knew the consequences of being so; and she said

ner to know whether she was the next friend and

entered an appearance for William, one of the three, she was not.
Judgment by default in an action against one of three and obtained judgment against him. Under these and said she was recommended to Mr. Gedye by

She berself, however, denied this,

partners is not a ground of refusai of taxation to circumstances the petition is presented by the two, Mrs. Lander, and therefore it was she became her

the other two.

John and Joseph, and it is said that it ought not to

Though at laro, and also in equity, taxalion after judg. be granted : first, because there is a judgment in the

next friend, being acquainted with her family. It
ment is not allowed, yet in equity the Court will action entered up against William Cox, and that that, and therefore it was important to have soine secu

was evident the bill would be dismissed with costs,

order judgment in an action to recover a bill of costs therefore, ought to be looked on as a verdict against rity. The case of Dowden v. Hook, Beav. 399,

to be entered up without prejudice to taxation. the three. Nothing has been said in support of this threw some doubt upon the case of Penningston v.

Two out of three partners may present a petition for injurious argument, and because the verdict is, by Alvin, i S. & S. 264, which ought to govern this case.

tarution, admitting thereby their liability to pay all an ingenious turn, to be considered a verdict against

that is justly due, but disputing the retainer as to the three, therefore there is to be no taxation.

Welford.- It is true the next friend is in humble


part of the bill of costs relating to private business other objection is, that the petition is presented reason of her being next friend was the recommen-

circumstances, but so is the plaintiff herself; and the
of the third partner ; but the third partner must be by two out of three against whom the demand |dation of her by Mrs. Lander to Mr. Gedye. Mr.
served with the petition.

is made ; but it is a petition by two persons who ad: Gedye is a mortgagee of the property. The fund has
A question of retainer can be determined just as well mit their liability and are willing to pay what is legally been totally lost or misapplied; it is said it was

by the Master as by a jury, and judgment may be and justly due. And does Mr. Hare mean to say repaid, but that was only colourably, and so it would
entered up without prejudice to that question. that he wishes to have something which is not legally appear at the hearing if the plaintiff sustained the

This was a petition for the taxation of the bill of and justly due ?

costs of Mr. Thomas Hare, a solicitor ; and it was for there is manifestly collusion between the plaintint allegations in the bill. The question is, whether a

presented by John

and Joseph Cox, who, with their in the action, and the third partner ; or, if not, there poor person is to be precluled from establisbiug her

brother, William Cox, were copartners. Mr. Hare is oppression, which the third party is compelled to / nights. Dowden v. Look is in point.
had transacted certain matters in relation to a disso. subinit to. Special circumstances, it is said, must ap: that the case of Dowden v. Huok was rightly decided,

The Master of the Rolls-I au still of opinion
lution of the partnership, and to a proposed arrange, pear; but here there are special circumstances enough and if another case came before me in which the cir-
ment with William's creditors; and he had also acted to justify the Court in saying the solicitor shall not
professionally in the sale of a farm or estate which escape taxation. Many cases of the sort have oc- decision. But bere the circumstances are not the

cumstances were the sime, I should make the same
was William's separate property. On the 14th of curred here, and they are familiar enough. Courts
August, 1846, he delivered his bill of costs to the of law, indeed, do not allow taxation after verdict, friend who was solvent, but who could not say that

There was there an appointment of a next
firm, amounting to the sum of 1981. 1s. 2d. in. and that rule has been followed here; but in conse he was in a condition to pay costs is the bill should
cluding not only his charges for the partnership busi- quence of that, this Court has thought it necessary be dismissed.
ness transacted by bim, but also for the private busi-

He was, however, an indipendent
to secure taxation before verdict.

It is said let it go agent, and bona fide offered himself, knowing the

ness of William in relation to the sale, &c. The peti- to a jury, and so I shall escape.

Is that the way


tioners disputed their liability as to so much of the enforcing payment of a solicitor's bill, and of obtain himself suing for his owo benefit and making his own

consequences. But is that like the case of a solicitor

bill as exclusively regarded William, and refused to ing what is legally due? That which is just ought to servant the next friend of the plaintiff. Is it proper

pay it.

On the 27th of November, 1846, Mr. Hare be done; and what had been done in other cases

brought an action in the Cominon Pleas against the ought therefore to be done in this.

in any respectable solicitor? Certainly a next friend

The solicitor

petitioners and William for the recovery of the whole must not be allowed to go on to a verdict, by which consequences he has a right to be appointed. But a

may be poor, but if he exposes limself fairly to the
amount of his bill; and the petitioners pleaded thereto taxation may be prevented, but he must submit to respectable so’icitor should consider a little before
without getting William to join with them.
however, authoriset Hare or his agents to enter verdict for what shall be found due thereon ; or he acting in thut manner. Take your order.
an appearance for him in the action, and he

may go on to verdict without preju lice to taxation.
afterwards allowed judgment to be signed against It is argued that there should be a trial at law as to

Jan. 28 and March 11.
him by default. The petitioners now presented the question of retainer. Why? There is nothing

their petition for taxation of the bill, alleging in that question which cannot be tried in this court Practice- Residence abroad -- Security for costs or
that their brother William bad been applied just as well as at law. The Taxing-masters are in

dismissing bill-Form of order.

VOL. IX, No. 209.




Where a plaintiff resides abroad, security for costs will should stand ratified and confirmed by the order, Court for dismissal of the bill within four weeks after

be ordered as a condition of being allowed to proceed authority, and decree of this Court, to be observed his own answer is to be deemed sufficient (Dalton with the bill.

and performed by all parties thereto according to the v. Hayter, 7 Beav. 586 ; 6 Law T. 234); and having The form of the order in Cliffe v. Wilkinson, tenor and true meaning tbereof, unless the plaintiffs that right, the Court, on his application, will hold, if 4 Sim, 122, approved of and adopted.

and defendants, who were many in number, and lived there be no excuse offered by the plaintiff, that his Heathfield, for the defendant, asked that the plain- remote from each other, their respective clerks in bill should be dismissed, merely obtaining an order tiff, who resided in America, might be ordered to give court having notice thereof, sbould, within eight days of course to amend before the motion to dismiss is security for costs or that the bill be dismissed. He after such notice, shew unto the Court good cause to heard, not being a sufficient ground for indulgence. cited the cases on the subject in their order.

Camac the contrary.

That it appears by the affidavit of (Slinton v. Taylor, 4 Hare, 608.) Now see what bas V. Grant, i Sim. 349; Cliffe v. Wilkinson, 4 Sim. James Taylor, that on the 23rd of February, 1824, been done here. No step was taken by the plaintiff 122; Fort v. Bank of England, 10 Sim. 616; Veitch | he, the said James Taylor, as solicitor for the plain for a whole year till we moved to dismiss; whereupon v. Irving, 11 Sim. 122.

tiffs in tbis cause, received from his clerk in court a she obtained an order of course to amend : and the The Master of the Rolls-Is there any one on copy of the said order, dated the said 12th of Febru- only reason assigned for the delay is the saving of whom it can be served ?

ary, and which he believed was duly served on the expense in case of admendment being necessary after Heathfield-No one except the solicitor. The de said plaintiff's clerk in court by or on behalf of the the answer of the other defendants, the defendant fendant must be delivered from the suit some time of said Margaret Price, the purchaser; the words Forman being only a formal party. That is no exother.

"served 25th February, 1824," beiog written thereon cuse, for except Mr. Forman, the pocket-defendant, March 11.-The MASTER of the Rolls-You may by the clerk or agent of the said James Taylor's Mr. W. G. Gray was the last defendant who had to take an order to give security for costs within a clerk in court. That the said Margaret Price, neg- answer, and his answer was suficient so long ago as limited time, or in default to dismiss the bill. That lecting to procure the said order to be made absolute, the middle of March 1845, form of order will be in conformity with the order the plaintiff obtained the office copy of the said order, Heathfield, contrà.-The former motion was to made by the Vice-Chancellor of England in Cliffe v. and which was signed by one of the deputy registrars discharge the order for irregularity, and, failing, in Wilkinson, 4 Simons, and Veitch v. Irving, 11 Simons. of this Court; and it appears by the affidavit of that, they now seek to discharge it on the ground of There was an intervening case of Fort v. Bank of Charles Hirst, that he did, on the 5th day of Febru- fraud: but there is no authority to shew that the England in 10 Simons, in which his Honour's atten- ary inst. serve Mr. Jackson, Mr. Smith, and Mr. course pursued at all objectionable. If there was tion was not drawn to Cliffe v. Wilkinson, and Veitch Wainewright

, the clerks in court, for all parties in a clear case of fraud made out, doubtless the Court v. Irving was subsequent, and in that his Honour's

at. this cause, with the said copy of the said

order, dated would give relief; but nothing of the kind is shewn. another case of Lautour

v. Holcombe, i Phill. 262, shewn against the said order, as by the registrar's motion to dismiss and before the hearing thereof, and in which the Lord Chancellor ultimately stayed pro- certificate

appears. It was therefore prayed that the the case

was therefore reduced to a question of ceedings, though at first he allowed them to go on ; said order may be made absolute, which is ordered costs.

The defendant bas not shewn that he but there were peculiar circumstances in that case, accordingly." Reg. Lib. A. 1826, fol. 925.

did not then know all the facts he now states in and it does not affect the present. Take the order as March 23.-Hubback now renewed his motion. support of his motion; and if he did, he ought to I have said.

[The MASTER of the Rolls.-Chillingworth v. Chill. have asked that the case should stand over that he

ingworth is the only authority; the other two cases might have time to bring forward his reasons. He Feb. 24 and March 23.

wbich were cited do not apply. The order not being did not do so; and he has got his costs. It is said ROBERTSON v. SKELTON.

made upon motion is the material thing.) I rely on the delay is not fully explained; the reason giren Practice-Confirmation of report as to purchaser- the conditions of sale, which provide that the pur. was poverty. Orders nisi and absolute, common and special. chaser is to pay the costs, and not on the practice of

The Master of the Rolls.-The question is, A purchaser, who was unable to comply with the con- the Court. He cited Snow v. Hole.

whether the plaintiff has used due diligence io get. ditions of sale strictly, obtained an order nisi lo The MASTER of the Rools held that the plaiotiffs ting in the answer. confirm the Master's report allowing him to be the might have proceeded, and served the order nisi, and Heathfield.—You may have one order of course purchaser, and took no further step; some time confirmed the same absolutely, and therefore be re- to amend any time so long as the defendant lies by after, the rendor, upon notice to the purchaser, fused the motion, and gave the purchaser his costs without taking any step, and the plaintiff may make mored specially for an order to confirm the report thereof.

use of tbe liberty given him. absolutely :- Held, that the order to confirm ab.

March 13.-Elderton, ia reply. solutely being a common order ought not to be moved

March 11, 13, and 23.

The Master of the Rolls.-I will not decide the for specially, and the motion was dismissed with


point now; but I may observe that there has been Practice-Order of course to amendIrregularity, gross delay. The question is this : [here his lordHubback moved, on behalf of the plaintiffs in this

Impropriety-Delay-Pocket defendant - Evasion of ship stated the facts and dates.] The defendant case, that the Master's report of the 4th of November, general orders-Jurisdiction at Rolls.

might have moved to dismiss in the middle of March, 1846, allowing Henry Higinbotham to be the pur- By Order 66 of May, 1845, one order of course for 1846; and if he had so moved, it might then be a cbaser of the estates comprised in lots one and two,

leave to amend as plaintiff may be advised may be good reason, on the part of the plaintiff, for the purmight be confirmed absolutely, and that the purchaser obtained any time before replication, and within pose of resisting the motion, to shew that there was might pay the costs of the motion. The purchaser four weeks after the last answer of the last answer. one defendant who had not put in his answer, and had obtained an order nisi to confirm the report on

ing defendant is to be deemed sufficient; and an that might have formed a sufficient excuse to defeat the 16th of December, 1846, but be bad not moved to order of course so obtained at the Rolls under any the motion to dismiss. Nothing, however, was done confirm it absolutely; and the plaintiff, the vendor, circumstances cannot be considered irregular, nor is by either party till the 17th of December, 1846, a now did so.

it liable on that account to be discharged.

year after the answer of this defendant, wbo now The Master of the Rolls.-Take the order.

But though such an order may not be irregular, it moves, was put in. Between the time when the Slcere, for the purchaser, objected that the motion, may nevertheless be very improper if obtained under notice of motion was given, and the morning of the is under the circumstances of the case proper to be circumstances involving gross misconduct of the par. day on which the motion was to be made, viz. the roade, was a motion of course, and not a special ties, and may on that account le discharged. 21st of December, 1846, an order of course to amend motion with notice so as thereby to inflict unveces

Such an order, however, if regular, cannot be dis was obtained ; and the question is, whether it is an sary costs on the purchaser; and he cited, in support charged at the Rolls if the cause in which it is made order wbich is sustainable, and if it is quite regular of his view of the case, Chillingworth v. Chillingworth, is attached to another branch of the Court; the juris. whether credit is to be given to it, and a party ob1 Sim. 291; Lidbetter v. Smith, 5 Beav. 377; diction at the Rolls in such a case being strictly con- taining it may take the benefit of it to defeat a moRoberts v. Williams, 2 Hare, 151. If the purchaser fined to the question of irregularity, and not ex. tion to dismiss. The motion to discharge the order is bound by the conditions of sale, that was not a tending to the impropriety of the order founded on for irregularity could not be granted, because the right course, for he cannot comply with them ; but he the conduct of the parties.

order was quite regular. The 66th of the New did the next best thing he could, which was to get the But if the case is in the Rolls Court, the question of Orders says, one order of course for leave to amend Master's report and an order nisi for its confirma- impropriety can be considered there of course in the may be obtained at any time before filing a replication, and the other parties were not served. Be- saine manner as in any of the other courts.

tion, and within four weeks after the answer, or the sides, no application before notice of motion was This was a motion to discharge an order of course last of several answers, is to be deemed sufficient, made to him to go on; but in the cases referred to, for leave to amend the bill, which had been obtained but no farther order, &c. Now theo an order of notice was given by the other side. This was not a by the plaintiff, to take the amended bill off the file, course has been obtained in this case, because the case for costs at all.

and to dismiss the original bill. The bill was filed by last answer was not put in; how did it happen that The Master of the Rolls said he would inquire the plaintiff, a married woman, on the 23rd of July, it was not put in? The plaintiff may oppose the as to the practice in such cases, and ascertain 1845 (vide same case, 8 Law T. 491), and amended motion to dismiss, on the ground that the answer is whether it should be a special or common order. on the 29th of July. On the 16th of December not in; but I never heard of a case in which the The plaintiffs had a right to get the order to confirm William Gover Gray, the defendant, on whose be- question why the answer had not been got in, was absolutely if the purchaser neglected to do so. There balf this motion was made, put in his answer, which not asked; and if a good reason is assigned, the Court is this reason also for the order being a special order, became sufficient on the 10th of February, 1846 ; and will deal with that reason, and admit it as an that the matter is thereby taken out of the hands of the time for obtaining an order of course to amend excuse; and the motion to dismiss will not be allowed, the purchaser, and some notice thereof should be expired on the 10th of March. On the 1st of June though the defendant may be in a condition to move given; but then an adverse motion is a different an appearance was entered by the solicitor of the according to the practice of the Court. And if this thing. He was sorry there had been no communi. plaintiff for Mr. Forman, who was the husband of case had been one of a sort analogous to that, the cation between the parties, but such civility is not the plaintiff

, and the only defendant who had not then order under consideration must have been sustained, perhaps always to be expected. The question of costs answered. Nothing more was done till the 17th of If after appearance for the defendant the plaintiff had had raised this storm.

December, when the defendant W. G. Gray served wished to amend, the question would be, are you The Master of the Rolls having subsequently the plaintif with a notice of motion for the 21st to entitled to an order to amend? Yes, it would be obtained a full copy from the registrar's book of the dismiss the bill for want of prosecution ; whereupon said, we are in a condition to do so by reason of the Order of the 25th of April, 1827, in Chillingworth v. the plaintiff, on the morning of the 21st, served last answer being outstanding. And why is it so? Chillingworth, he commuvicated the same to the the defendant with an order of course to amend, The answer to that is, the defendant, the husband of counsel on both sides. The following is a copy of and paid 20s. costs. This order the defendant the plaintiff, is under the guidance and control of that order :-"Upon motion this day made into this Gray, on the 28th of January last (ride 8 Law T. the solicitor of the plaintiff. The answer is not in, Court by Mr. Girdlestone, jun. of counsel for the p. 492), moved to dismiss for irregularity; but not says the plaintiff; why? It is not convenient to get it plaintiffs, it was alleged that by an order, dated the being successful, he served a notice of motion on the in because it is desired to have only one answer to the 12th of February, 1824, it was ordered that the report 8th of February last for the same purpose, but on a origioal and amended bill. Now, if that were the reaof Mr. Trower, one of the Masters of this Court, different ground, alleging that under the circum- son, the order ought to have been obtained after the dated the 9th of September, 1823, whereby Rees stances the order had been obtained in a manner last answer was to be deemed sufficient. Is there Price, on behalf of Margaret Price, was allowed the involving a fraud on, or an evasion of, the General any excuse for the delay ? No, no valid excuse. best purchaser of the premises in this said report Orders of the Court. The motion now came on to be Well, then, if there has been wilful delay, and the mentioned, comprised in lot No. 16, part of the heard.

only ground for an order to amend is that the last estates in question in this cause, at the sum of 5151. Elderton for the motion.-The 114th Order, Art. 1, answer has not been got in, would that be available to and all the matters and things therein contained l of May 1845, enables any defendant to come to the la party standing here to oppose a motion to dismiss ?

But here are the Orders, it is said ; and in cases where staoces were as follows :--John Ogilvie, the owners and in the Trieste house, which has been so frequently there is a distinct declaration, it is argued that I am of the ship, on the 19th of September, 1835, entered mentioned, is as follows :—“Sir, understanding that bound to act according to it: that is my doubt. into a charter-party with Ker, on behalf of his house the ship Margaret Ogilvie, is addressed to your There may be a neglect or omission in these Orders in of Freeland and Co. of Rio de Janeiro, by which the house at Trieste, we beg to acquaint you that on benot providing for that case. I will consider. ship was to sail to the Clyde, there load from factories half of our clients, Messrs. Glasscott, Brothers, as

March 23. — The MASTER of the Rolls.-This of Freeland and Co. and proceed to Rio, and after mortgagees of that vessel, possessing an absolute was a case in wbich the defendant, W. G. Gray, delivering cargo, load with sugars and proceed power of sale, the particulars of which have been put in his answer to the plaintiff's bill on the to some part in the Mediterranean continent, communicated to your agent, Mr. Ker, of Glasgow, 16th of December, 1845; and the six weeks after which and deliver the same upon being paid freight we have instructed Messis. Reyer and Schlik, of the answer was to be deemed sufficient, and the four at a certain rate, less 3001. which was to be Trieste, to take possession of the vessel, and to forweeks after which the defendant was to be at liberty paid int he Clyde upon the vessel clearing out at ward her to London. As it is desirable to obtain a to move to dismiss the bill for want of prosecution, ibe custom-bouse, and what money the vessel freight for the vessel, if possible, and as you have a expired before the middle of March 1846. The plain- might take up, not exceeding 1001. The vessel serious interest at stake, on account of the advances tiff is a married woman, suing by her next friend ; was consigned to the agents of the charterers in made by you, which are secondary to our client's her husband is a defendant, and has appeared by the Clyde and Rio, and the other ports. The 300l. was claims, the co-operation of your house with Messrs. plaintiff's solicitor, but has not put in his answer. paid to Ogilvie on the 25th of September. Ogilvie Reyer and Schlik may be of essential service in doing On the 17th of December the defendant, w. being indebted to the plaintiffs and others in various the best for the vessel, so as to enable you to obtain G. Gray, who had long been entitled to move to sums, executed, on the 24th of October, 1835, a bill reimbursements, and at the same time may assist dismiss for want of prosecution, gave a potice of mo- of sale, duly registered, to the plaintiffs, of the vessel us. We shall therefore be glad of such cotion for the 21st of December. On that day the and her freight, &c. subject to redemption on pay- operation, if you see no objection thereto." Conplaintiff, who had obtained an order of course to ment by Ogilvie of the sums of money due to the sidering all the facts, of which the Rio house and amend, served it on the defendant, and produced it to plaintiffs and the other persons mentioned in the the Trieste house had notice, considering especially shew that the order to dismiss could not then be deed, with interest, on the 31st of March then next. this letter, am of opinion that it was impossible made. The defendant afterwards moved to discharge The vessel arrived in the Clyde in December 1835, for the house of Lang and Co. at Trieste, either the order to amend for irregularity simply. If I could and Ker bed notice of the mortgage by the indorse on behalf of themselves, or on behalf of the house at construe the words “last answer," in Order 66 ment of the registry certificate before anything be- Rio, to obtain from Mr. Spence, whether master or and Order 16, Art. 33, to mean the last answer yond the 3001. had been advanced. Ker, however, his mate, properly or effectually, the bond in question, filed at the time of making the order to amend, expended 2641. 198. 3d. for supplies, &c. and gave as it was obtained without communication or applithe order would have been irregular, because it was David Gray an undertaking to pay 100l. upon receipt cation to the Glasgow company, without communicamade long after the time allowed 'within which to of information of the arrival of the vessel at Trieste, tion or application to Pearce and Co. and without make it, if it were to be made within four weeks or of such an occurrence as to prevent her from ever communication or application to Reyer and Co.; upon after the time when the last aoswer was put in. But I arriving there. In January 1836 the vessel sailed for that ground alone I feel myself obliged to declare cannot persuade myself that it is the last answer put Rio, and arrived there in April, and sailed for Trieste that this bond cannot stand, and that it is a fradulent in which is intended by the Order ; it means the last in May. Before the vessel left Rio the charterers instrument in the sense in which I have before answer of the last-answering defendant. But at the expended in pecessaries, &c. for her 2621. the parti stated, that the term ought to be considered as used time this order in question was made, there was an culars being vouched by the captain, and the amount bere-in a sense pot disrespectful or disparaging answer not put in; it therefore, perbaps erroneously, endorsed on the register. On the 9th of October towards those who have ineffectually attempted to appears to me that the order of course to amend, 1836, the vessel arrived at Trieste, discharged her sustain this instrument in the prosecution and dethough obtained after gross and inexcusable delay, cargo, and re-loaded for London. On the 9th of fence of what they considered their just rights—in the was not irregular. The defendant's motion to dis- September, 1836, the plaintiffs wrote to Messrs. prosecution and defence of that which an honest and charge the order for irregularity having therefore Reyer and 'Schlik of Trieste, instructions to take pog. bonourable man might, however erroneously, have failed, he now moves to discharge it on another session of the vessel, and afterwards forwarded a considered to be his just rights. With regard to the ground-because it was made in evasion of the

Orders power of attorney for that purpose, the plaintiffs costs, it is impossible not to lament the great extent of May 1845. In considering orders at the Rolis

, having, on the 2nd of September, given Ker, at Glas- to which the costs in this suit have gone. These costs obtained in causes attached to other branches of the gow, formal notice of their bill of sale. On the 3rd have, as I suppose, been mainly occasioned by the Court, I have to distinguish irregularity in the

order of October, Ker, by power of attorney, authorised extent of the evidence to which the parties went upon so obtained, and which alone is to be examined in this Lang, Freeland, and Co. of Trieste, to take proceed. the occasion of the motion and the appeal-the motion Court, from impropriety in the proceedings in the ings against the ship upon her arrival at Trieste, to respecting the injunction - upon both of which occaother Courts, grounded on the misconduct of the recover 1471. 38. and interest. On the 16th of Novem- sions the plaintiffs succeeded. I am of opinion, though parties in the cause, wbich is not to be considered in ber, 1836, the master of the vessel executed a bot. not without some regret, that I am obliged by the this Court; and to avoid the assumption of jurisdic. tomry bond at Trieste in favour of Bryce, one of the conclusion to which I have come upon the inain ques. tion it is necessary to be very careful and to be cautious partners in the house of Lang, Freeland, and Co. for tion in the cause, and the general aspect of the case, not to interfere in a cause not within the jurisdiction 4831. 10. for necessaries, and the alleged amount to come also to the couclusion, in a sense and in a of this Court. If this had been a cause of that kind, due to Ker beyond the freight earned. No notice of manner not in the least degree disrespectful towards and within the jurisdiction of another Court, I should the necessity for the bottomry bond was given to the the defendants, that I cannot refuse the plaintiffs have refused to ioterfere ; but the cause is attached to plaintiffs, their agents, or the owner of the vessel, their costs of the suit. The decree must be, that the this Court, and may therefore be taken into consider. notwithstanding Messrs. Reyer and Schlik bad given bond be delivered up to be cancelled. ation here. Any defendant is entitled to move to dismiss notice to Lang, Freeland, and Co. of their instructhe plaintiff's bill, after four weeks from the time tions from the plaiotiffs. On the 15th of September,

Jan. 29 and 30. when bis answer is to be deemed sufficient; but the 1836, the solicitors of the plaintiffs addressed the

MOXHAY V. INDERWICK. circumstances of his case may be such that the de- letter to Mr. Lang, which is stated in the judgment. Specific performance-Abandonment of contract. fendant may be entitled to move before the plaintiff On the 21st of January, 1837, the vessel returned to A question upon the conveyance of land, pursuant to a is in a condition to take the next step, and the motion London, and the plaintiffs took possession of, and sold

contract, haring arisen in September 1839, 4 correto dismiss may be made before the plaintiff is able to her.

spondence was carried on between the solicitors, someproceed. If the motion to dismiss be so made, the Russell, Heathfield, and Prendergast, for the

times at longer sometimes at shorter intervals, until Court may, when it is being made, take into con plaintiffs,

1843, without any steps being taken on either sicle to sideration the circumstances of the case, and grant Wigram and Stinlon, for the defendants.

enforce the contract. A bill was filed by the purfurther time to the plaintiff, which is usually called The following cases were cited : Arthur v. Barton, chaser in 1843, and it was held that the coniract an indulgence : but the discretion, it seems, should 6 Mee. & Wells. 138 ; the Lochiel (Feb. 21, 1833, pot

could not be considered as avandoned. not be so exercised as to deprive the defendant of his reported); La Ysabel Bozo, 1 Dodson, 273; The

This was a suit instituted by the plaintiff for the right to dismiss, and the Court will look into the Augusta D'Bluhn, 1 Dodson, 283; The Orelia, 3 Hagg. purpose of compelling the specific performance of a causes of delay before granting any indulgence. In Adm. Reports, 75; The Hebe, 4 Notes of Cases in contract for the sale to him of the enclosed piece of this case it appears to me the plaintiff has not made the Ecclesiastical and Maritime Courts, 361.

ground in Leicester: Square, and the statue of George out any title to indulgence, and it would therefore be The Vice-CHANCELLOR.-Fraud, as Mr. Stinton the First there. On the 25th of April, 1839, this great injustice to deprive the defendant of his right to has justly observed, is often used in this court with property was put up for sale by public auction, and in dismiss. The delay was very wrong and unnecessary ; reference to transactions over which the Court has a the particulars of sale, which had been prepared by nay, if it were not so, the plaintiff might have ap. jurisdiction, in a sense not imputing moral delin. Mr. George Robios, the auctioneer, without legal peared on the notice of motion to dismiss, and ac. quency. That is the sepse in which the word ought assistance, was the following statement :-" There is counted for it; and if he had, the case would have to be considered here, and a decision agaiost the de- malheureusement a covenant wbich restrains the posbeen considered, and reasonable indulgence allowed. rendants is perfectly consistent with an opinion that sessor of the fee-simple from building on this grand Not having done so, he cannot by an order of course they acted only under an impression that they were and unrivalled open space. An Act of Parliament, to amend prevent the defendant from exercising bis in a proper manner protecting their just rights. This however, might remedy the difficulty; and it will right to dismiss ; I therefore discharge the order to case, however, is one of very peculiar circumstances. perhaps be difficult for an enterprising character to amend, with costs, and order the amended bill to be I am not satisfied that if Mr. Ogilvie's interest in the withstand the temptation. But the leading feature is taken off the file. If the plaintiff, however, undertakes vessel had not been incumbered, this bond could for the certainty that in the immense improvements which to get in the remaining answer, and file a replication any period have stood for the whole amount for which are in full progress, this square must necessarily be in a week, the proceedings may go on.

it purports to have been given. That, however, is required, or failing to make suitable terms with the not the question, or not the only question here. His possessor of this valuable land, an extinguisher must

interest, if not wholly alienated, was heavily encum. of course be at once placed upon the grand plan which VICE-CHANCELLOR ENIGET bered. The first incumbrancers subject to the ques. is now upon the point of adoption, viz. to communiERUCE'S COURT.

tion in the bood, were the plaintiffs. The plaintiffs cate Covent-garden with Piccadilly, thus opening a

had a power of sale, and after paying themselves, grand thoroughfare to the city of London, and giving Feb. 10 and 11.

they would be accountable for the surplus, if any, of to her Majesty a decent and proper line of road when GLASCOTT 0. LANG.

the produce of the sale. They therefore had an she honours our national theatres with a visit." At Fraud-Bottomry-bond.

interest in the question as to the validity and rank of the sale, Hyam Hyams, one of the plaintiffs, was de. Circumstances under which a was, at the bond beyond and independently of the mere secu- clared the highest bidder at 4211. 10s. and Moxhay,

the instance of mortgagees of a vessel, ordered to be rity to themselves for their own money. The exist. the other plaintiff, afterwards purchased the contract delivered up to be cancelled on account of fraud. ence of this security was known to all parties. Every of him. On the 23rd of May, 1839, the abstract of

This was a suit instituted by the mortgagees of a person concerned in these transactions had notice of title was delivered ; on the 29th of July, in the same ship called the Margaret Ogilvie, and of her feight and it. Without entering, for it is unnecessary to enter, year, the drafts of the conveyance were prepared, andon earnings, for the purpose of having a bottomry-bond into all the details of the case with minuteness, it is the 14th of August were approved. A covenant, howdelivered up to be cancelled, as being in fraud of the sufficient to call attention pointedly to the letter of ever, on the part of the purchaser, was introduced plaintiffs, and for an injunction against any pro- the 15th of September, which preceded, by consider in the engrossment, to the 'effect that the purchaser ceedings in the Admiralty Court in respect of the ably more than a month, the transaction of the bond should properly maintain the ground as a pleasure bond. The case upon an appeal motion for an in- in question. The letter from the plaintiffs' solicitors ground.' To the introduction of this covenant objecjunction is reported 3 Myl. & Cr. 451. The circum. I to Mr. Laog, who was the partner in the Rio house, tions were made, and a correspondence ensued which continued till 1843, when the bill in this case was filed. Swanston, for the plaintiff, cited Johnson v. Evans, made of money having been offered to a witness to The principal questions discussed were as to the 7 Man. & Gr. 240.

make a particular statement, and it is to this alleabandonment of the contract, and whether the inser- Russell and J. T. Humphrey, for the defendant, gation that the Vice-Chancellor alludes in his judg. tion of such a covenant as that proposed could be contended that the partnership was dissolved upon the ment. enforced upon the purchaser. It appeared that is a 10th of May, 1841, and that the plaintiff was not en- S. Bell, in support of the application, contended conveyance of this piece of land in 1808, a similar titled to the relief asked. Chapman v. Koops, 3 Bos. that it was not necessary that the next friend of a covenant, but not so extensive, bad been eotered into & Pall. 289; Re Wait, i J. & W. 605; Dutton v. feme covert should be a person of substance. (Penon the part of the then purchaser ; but the introduc- Morrison, 17 Ves. 193.

nington v. Alvin, i Sim. & Stu. 264 ; Wale v. Salter, tion of the statement before mentioned in the particu- Swanston, in reply, cited Skip v. Harwood, 3 Atk. Moseley, 86; Drinan v. Mannix, 3 Dru. & War. lars of sale, was urged as a reasou against the present 564.

154.) In Dowden v. Hook, 8 Beav. 399, Lord Langpurchaser's being compelled to enter into any fresh The Vice-CHANCELLOR.-Circumstanced as this dale, after referring to Pennington v. Alvin and Dricovenant upon the subject.

case is, I am of opinion, without any doubt, that at nan v. Mannix, says, “ A decision of Sir John Leach, Russell and R. Palmer for the plaintiffs.

the date of the execution and assignment by the approved of by Sir Edward Sugden, is deserving of Wigram and Miller for the defendants.

sheriff, the assignment bad the effect of dissolving the greatest respect, and cannot be departed from The following cases were cited :-Morton v. Tewart, the partnership. Notwithstanding that seizure by without great hesitation. In ordinary cases such 2 Y. & C., N. C. 67; Forsler v. Hale, 3 Ves. 696; the sheriff and the language of the assignment by authority is sufficient to sustain a rule of practice ; Powell v. Dillon, 2 Ball

. & Bea. 416; Reynolds v. him, I am of opinion that it is still possible, in but the consequence of declaring that a married Nelson, Mad. & Geld. 18; Taylor v. Brown, 2 Bea. point of strict right, that something may, on the re. woman shall not be permitted to sue without giviog 180; Stains v. Morris, 1 Ves. & Bea. 8; Wilkins v. sult of an account or an inquiry, appear to be coming security for costs, or without a dext friend who can Pry, i Mer. 214 ; and Watson v. Reid, i Russ. & to the plaintiff, and that it is the strict right of the swear he is competent to answer the costs, appeared Myl. 236.

plaintiff not to have the bill dismissed. Without de to me to be very serious. It is obvious, indeed, that The Vice-CHANCELLOR said, that as the plaintiffs ciding what it was or was not by law in the power of there may be many cases in which such a rule would were willing to accept the title, and

insisted on a spe- the sheriff to seize, my impression is, that the plain- plainly prevent the woman from seeking to establish cific performance of the contract, whether the cove- tiff is entitled to an inquiry of this description--a re- the most just claim, and in that way would amount nant were inserted in the conveyance or not, they were ference to the Master to inquire what were the par- to an absolute denial of justice. I therefore thought entitled to the decree, and the only question would be ticulars of the stock in trade, debts, effects, and it right to make some inquiry respecting the practice as to the conveyance itself. Considering the purpose riabilities at the time of the execution; what 'debts of the Court in such cases ; and I have found two for which it was necessary, in order to establish a

were then due to the partnership; what was then cases, in which a married woman suing by her next right in the plaintiffs, for them to join as plaintiffs, due by the partners to the partnership; wbat, if any friend, has been admitted to sue in forma pauperis ; and considering the circumstances under which the thing, had been received in respect of the partnership, one in the case of Collier v. Young (25th of October, case stood, his Honour was of opinion that sufficient and by whom, and how the same had been applied, 1743), and the other in the case of Valentine v. Walker evidence had been given to satisfy the Court of the and whether the debts and liabilities of the partner (19th of May, 1843). In the last case, which occurred propriety of not refusing relief, upon the ground that ship at the time of the execution had been discharged, eleven years after Pennington v. Alvin, the order was the two individuals before the Court were jointly and by wbom.

made as an order of course, but after consideration, by plaintiffs, and sufficient also to render it unnecessary Russell asked that it might be declared that the Sir John Leach himself, on the authority of the former to send to the Master an inquiry as to their interest partnership was dissolved; but the Vice-Chancellor case of Collier v. Young. And as it appears from the or the interest of either of them. As to the alleged declined to insert such a declaration in the decree, cases, that a married woman may be admitted to suo abandonment and the alleged laches, he thought that considering that it was unnecessary.

in formâ pauperis, it seems too much to contend that no case had been made. The question, then, was as

she cannot, as in this case, sue by a next friend, who, to the form of the decree. The plaintiff, Mr. Mox.

Feb. 24 and 26.

though not able to say that he has the present means hay, had elected to abide by his purchase rather than


of paying the costs which may be awarded against give it up; that was, that even if the contention of Practice-Purchase-money-Income Tax. him, does nevertheless swear that he is perfectly the defendant could be established against him as to the A purchaser paying in his purchase-money with interest solvent, and who is clearly personally answerable for covenant, still Mr. Moxbay would rather have it than

is not allowed to deduct the amount of the income any costs awarded against him, and left unpaid. give it up. The proper course would therefore be to

tax from the interest.

Under the circumstances, there seems reason to consend a reference to the Master to approve of a proper Pigott, on behalf of a purchaser under a decree in sider that the decision in the case of Pennington v. conveyance under the contract, the title being accept this cause, moved for leave to pay into court his pur- | Alvin may have depended more than appears by the ed; also inquiries whether the occupation since the chase-money and interest thereon, after deducting report upon the special circumstances which attended purchase had been beneficiai? whether the occupier from such interest the amount of the income tax. He it; and notwithstanding the authorities cited, I do had received any rent? and what, if any, he bad ex- referred to the terms of the Income Tax Act, 5 & 6 not think that I ought to grant this motion." pended in substantial repairs, and in the performance Vict. c. 36, s. 102.

The Vice-CHANCELLOR. - Suppose a married of the covenants ?

Spence, for the plaintiff, objected, and said that the woman has a clear right, and cannot obtain any person

course of the Court did not allow of such deduction to be her next friend, what is she to do? I have been Tuesday, Feb. 9. as was sought to be made.

much struck by those observations of Lord Langdale. HABERSHOX v. BLURTON.

The VICE-CHANCELLOR said that it appeared to In this case there is an adjudication that the woman

him that the application was reasonable, but he could is at least entitled to an inquiry, Partnership-Dissolution-Execution against partner. not take upon himself to alter the course of the Court. Teed and Collins, for the defendants, contended that Where an execution was issued against a partner, and He would, however, allow the application to stand a married woman, suing by her pext friend, should, at

under it his interest in the partnership stock, and over for inquiries to be made of the registrars. all events, have a next friend of sufficient substance effects, was sold, the Court held it to be a dissolution

Feb. 26.-Pigott mentioned that the registrars to pay costs. of the partnership.

being of opinion that the deduction of the income tax The Vice-CHANCELLOR.-I should have been A partner having purchased from the sheriff, under could not be made, he would take the order without disposed to make this order, except from what has an execution, the share of his partner in the partner- referring to the income tax.

been stated in the last affidavit, which appears to ship effects, the Court, under the circumstances of the

Order made accordingly. amount to a contempt of court. Subject to the ex. case, held that the latter was entitled to have an

planation which must be given of that circumstance, account taken of the partnership dealings and trans

Saturday, Feb. 27.

i direct that upon payment of the costs of this appliactions.


cation, and giving security for those already incurred, This was a suit instituted for the purpose of having

Practice-Taking traversing note off the file-58th the suit may be prosecuted in the name of the pro. a dissolution of a partnership carried on between the

Order of May 1845.

posed next friend. plaintiff and defendant as printers, and for an account Rasch, in this case, applied on the 24th inst, and of the partnership dealings and transactions. It ap- now renewed the application, to take a traversing peared that in February 1836, a partnership was note off the file. It appeared that the bill was filed

Bankrupt and Insolvent Courts. formed between the plaintiff and defendant for seven on the 3rd of December last; on the 23rd of January years, as from March in that year; and it was agreed the time for answering expired, and an application to that the defendant was to manage the business, and the Master for further time was refused on the 3rd

COURT OF REVIEW. receive a weekly stipend, but tbat the plaintiff was to of February a traversing note, and on the following be exempted from personal attention to the business. day replication, was filed; and on the 5th of Feb.

Tuesday, Feb. 2. During the years 1836, 1837, and 1838, the plaintiff ruáry the answer was prepared and engrossed, and

Ex parte HENBURY re CAVENDI9I. brought into the business 2001. aud in 1838 the de- would have been filed but for the traversing note. He

1 & 2 Wm. 4. c. 56, ss. 46, 65. fendant brought in 2001. and the plaintiff was repaid, cited the 56th and 58th Orders of May 1845, and The fees of 201. and 10l. payable under these sections out of the partnership assets, a sum advanced by him Rigby v. Rigby, 6 Beav. 255.

are to be paid prior to the costs of the solicitor to the as a temporary loan. The profits were never divided, Egan, for the plaintiff, opposed the application, fiat ; and that whether assignees have been chosen or but the assets and profits remained in the hands of contending that the Master had refused to extend defendant; and down to 1842 the plaintiff never the time for answering, and that the defendants did This was a petition for payment of the taxed costs received any sum, except that before mentioned, from not ask, by their notice of motion, for the removal of of the solicitor to the fiat, out of a sum of 271. stand. the assets of the partnership. In 1841 execution was the replication as well as of the traversing note. ing to the credit of the bankrupt's estate in the name issued upon a judgment obtained against the plaintiff ; The Vice-CHANCELLOR directed that the tra. of the accountant in bankruptcy. The 20l. and 101. and the sheriff, by a bill of sale, dated the 10th of versing note should be taken off the file.

directed by the 1 & 2 Wm. 4, c. 56, to be paid had May, 1841, in consideration of 2001. assigned to

not been paid, no assignees having been chosen, and Emanuel Pearson, the share, right, and interest of

Wednesday, March 10.

there being no probability of any being chosen. The the plaintiff of and in all and every the debts, furni.


bankrupt had obtained his certificate in November ture, chattels, and effects so seised under and by Practice - Married woman-Next friend. last, but the solicitor had received nothing on account virtue of the writ of fi. fa. and held by the plaintiff in After a decrce, the Court allowed the next friend of the of his costs. Several cases having occurred with re. partáership or joiot tenancy with the defendant. The

plaintif, a married woman, to be changed, although gard to the payment of these sums of 201. and 101. 2001. had been borrowed by the defendant of the said

the defendants opposed the application on the ground (see Ex parie Diamond re Diamond, ante vol. 4, Emanuel Pearson, for the purpose of this purchase; and,

of the proposed new next friend not being a person p. 378), this petition stood over until the Lord Chanon the 30th of September, 1841, the said share, right, of substance.

cellor had given an opinion upon the subject. and interest was assigned by the said Emanuel Pearson In this suit a married woman was plaintiff, and Forster for the petition. to the defendant. The bill alleged that the considera- her next friend had been twice changed. After a The CHIEF JUDGE now said that Mr. Ayrton, the tion for this purchase had been paid by the defendant decree an application was made to substitute another Registrar, had informed him that the Lord Chancellor out of the moneys of the partnership, and that the person for the then next friend. Affidavits had been had intimated that he was of opinion that the solicitor's purchase was but a payment of the plaintiff's, with filed on behalf of the defendants, and counter affida- bill was not payable out of the bankrupt's estate a portion of his share of the profits of the partnership; vits on behalf of the plaintiff, regarding

the pecuniary until after payment of the sums of 201. and 10!. reand that there was then due to the plaintiff, from the circumstances of the proposed next friend, who quired by the 1 & 2 Wm. 4. c. 56. His own opinion partaership, a larger sum than that paid to the sheriff. alleged by the defendants not to be a person of sub- had always been that, the language of the Act being The bill was filed in September 1845.

stance. In one of the affidavits an allegation was obscure, effect ought not to be given to a fiscal regu


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