What type of evidence consists entirely of tangible items that may be brought into a court of law?

Page 2

purposes of the statute, the time of passing the last however, nor could reasonably have been denied, that examination must mean the day of public sitting di- the intention ascribed to the testator by the appellants, rected by the statute to be appointed for that pur- was an intention which he had a right by law to enterpose by the Court. If the bankrupt did not on the tain and effectuate, if he thought fit; or that if he had day of that sitting pass his last examination, the al- inserted in the will such a clause as this, “It is to be lowance must cease. His Lordship thought that the observed, that by the word 'survivors,' I mean such, learned commissioner was wrong; and he must, there and only such, of the twelve devisees in remainder fore, reverse the order, and declare that the allowance herein named as shall outlive both myself and my ceased at the time when the bankrupt ought to have wife," the appellants would have been entitled to what passed. The appeal, therefore, would be allowed ; but they seek. And my opinion is, that the will, in its any payments already made to the bankrupt would not actual state, as plainly exhibits and declares the testabe disturbed. Subject thereto, the costs of the bank- tor's meaning and intention, in using the word “ survirupt, to the extent of 51., would be allowed out of the vors," to have been what the appellants contended for, estate.

as if such a clause, as I have just suggested, had been Note for reference-Griff. Bank. Act.

inserted in it. The testator had a right to say, and,

I think, said, that those of the twelve who should die, living his wife, should be excluded in favour of

those of the twelve who should survive both her and COURT OF APPEAL IN CHANCERY.

the testator himself; and if we are contradicting any GREGSON'S TRUSTS.—Nov. 23.

authority in so holding, I consider that we are not Will—Survivor-Death.

contradicting Wilson v. Bayly (3 Bro. P. C. 195), or Devise of real estate to A. for life, and on her decease, to any other authority binding on the Court. be shared amongst the following persons, or the sur

Sir G. J. TURNER, L. J., commenced by reading the vivors of them, viz. B., C., D., &c. :-Held, that the His Honor, hy the order made upon this petition, de

will, and stating the facts of the case, and then said-survivorship

, referred to the death of the tenant for life, clared that, according to the true construction of the and that only those of B., C., D., &c., who survived her, testator's will, and in the events which had happened, became entitled to share.

the devised estates vested at the death of the testator, This was an appeal from a decision of Sir W. P. subject to the life interest therein of the widow, in Wood, V. C., who held, on the construction of a de- the twelve persons named in the will, in equal shares vise in the will of James Gregson, that the word "sur- as tenants in common, and ordered the fund to be vivors” referred to the death of the testator, and not distributed accordingly; and he also ordered the costs to the death of the tenant for life. The facts, the to be paid by the corporation of Liverpool. It is cases cited, and the arguments used appear in the re- from this order the appeal is brought. It is brought port of the case, ante, p. 696.

by several of the persons named in the will, who surSir H. Cairns and Kay, for the petitioners, the six vived the widow, the tenant for life, contending that who died in the lifetime of the tenant for life.

the declaration contained in the order, and the direcRolt and E. R. Turner, for the appellants.

tions consequent upon it, are erroneous, and that the G. M. Giffard, Morgan, and North, for other parties. fund ought to be divided amongst such only of the

Sir J. L. Knight BRUCE, L. J.—The controversy, twelve persons named as survived the tenant for life. in the present case, is as to the construction to be The question which thus arises between the persons put on the word “survivors,” contained in the will, who survived the testator, and those who survived the dated in the year 1832, of Mr. James Gregson, who tenant for life, certainly cannot fairly be stated otherdied several years ago. [His Lordship then read the wise than as a question of doubt and difficulty, having will, and stated the facts in the case.]

regard to the state of the authorities upon it, but it The testator's widow has lately died, having out- may as certainly be stated, that it is in all cases purely lived six, and been outlived by the other six of the and simply a question of intention. The sole question twelve persons who, beside herself, were named in it, is, did the testator intend to give the property in as devisees of his real estate ; and on her death, the question to such of the twelve persons named in his question already mentioned has arisen between the will as should survive him, or to such of them only as surviving six and the representatives of the other six should survive both him and his wife, the tenant for devisees in remainder; the surviving claiming the life under his will? This question must, of course

, whole, and the representatives of the other six dis- depend mainly, if not wholly, upon the construction puting that claim. The dispute turns on the meaning to be put upon the particular devise contained in the of the word "survivors," as used in the will. Now, will. The terms of the devise have been already stated. that if the instrument is read and construed according The doubt which arises upon it is, to what period did to the ordinary rules of the English language, as the testator intend the survivorship to be applied? spoken and written by ordinary persons on ordinary To his own death, or to the death of his wife, the occasions, the word "survivors” must be understood tenant for life? I will first consider this point within the manner desired by the appellants, that is to out reference to the authorities. The principle which, say, as excluding the representatives of the deceased in this point of view, ought to be applied to the desix, is, I think, plain and clear.

termination, cannot, as I apprehend, be disputed. The But it is said against the appellants, that the rules words of a devise are to be construed according to of English law concerning real estate, and especially their common and ordinary meaning, and in the sense concerning contingent remainders in real estate, as in which they would be understood by persons of com those rules existed before and when the will was made, mon understanding. The word “survivors" is a term of render it incumbent on a Court to lean in favour of relation. It must have reference to some particular ascribing to the testator an intention to give to the period of time. It is in this will placed in immediate twelve devisees in remainder respectively, if surviving connexion with the death of the testator's widow, the him, interests vested at his death, and not as to any of tenant for life under the will ; " and on my wife's de them contingent interests, or interests liable to be cease my will is, that the above freehold property shall divested after his death. Ảnd in support of this pro- be divided, share and share alike, amongst the following position, Doe d. Long v. Prigg (8 B. & Cr. 231) and persons, or the

survivors of them." No other period of many other authorities have been cited. It has not, time, except that of the death of the wife, is referred

Page 3

the word " descendants” simply, and his great grand- | March, 1863, the plaintiffs served on the defendant father had no lineal descendants; it must, therefore, notices, in the terms of the proviso, of their desire to be taken that he meant collateral descendants. The purchase the fee in each of the plots of land" at the price Court will not so limit the word, especially when by of 2101., at the expiration of three months from the so doing there will be an intestacy, which clearly the date hereof." The three months specified in the notestator did not intend.

tices having expired on the 20th June, on the 1st July I am of opinion that the added words, “whose kin- | the plaintiffs sent draft conveyances to the defendant, dred with me originated from him," do not affect the who declined to waive the default, except upon terms, construction; for Joshua Stonehewer is the point of and refused to complete, on the ground that the conunion up to whom the testator traced his descent dition on which the right to purchase was given had lineally, and the defendants trace their descent col- not been complied with. The plaintiffs then filed laterally.

their bill. I will make a declaration that "descendants" in the Glasse, Q. C., and Purcell, for the plaintiffs, contestator's will, means “collateral descendants."

tended that time was not of the essence of this conThe disclaiming defendant must have his costs. He tract, and that the words “ at the expiration of such is one step more remote than the other defendants, notice" did not mean upon the day on which such and ought not to have been made a party.

notice expires,” but after such notice has been given. Note for reference-2 Jarm. Wills, 100.

[They cited Lawes v. Bennett (1 Cox, 167); Ripley v. Waterworth (7 Ves. 446); Townley v. Bedwell (14 Ves.

596); Daniels v. Davison (16 Ves. 254); Weeding v. VICE-CHANCELLOR KINDERSLEY'S COURT.

Weeding (1 Johns. & H. 424; 7 Jur., N. S., 908); and

Pegg v. Wisden (16 Beav. 239; 16 Jur. 1105).] LORD RANELAGH v. MeLTON.—Nov. 14, 15, and 25. Baily, Q. C., and Graham Hastings, for the defendSpecific performance-Purchase-Time. ant. The condition on which the plaintiffs are to have

the benefit of the option to purchase must be conWhere lessees had an option of purchasing the fee upon strued strictly, and the plaintiffs, having failed to com

giving, within seven years, three months' notice of their ply with it, cannot have a specific performance which desire to do so, and paying a fixed sum at the expira- the defendant could not compel, or there would be no tion of such notice-Held, that time was of the essence of the contract, and a bill for specific performance, defendant would be kept in suspense for an indefinite

mutuality. If“ at the expiration" means “after," the filed by lessees who had given due notice, but had not time. [They referred to Burrell v. Sabine (1 Vern. paid the money at the expiration of such notice, dis- 268); Endsworth v. Griffiths (3 Bro. P. C. 184), Davies missed, with costs.

v. Thomas (5 Russ. & M. 506); Joy v. Birch (4 Cl. & This was a bill filed by the trustees of the Conser- Fin. 57); Brooke v. Garrod (3 Kay & J. 608; 2 De G. vative Benefit Building Society, to compel the de- & J. 62); and Honyman v. Marryat (21 Beav. 14; 1 fendant, who was owner of certain plots of ground Jur., N. S., 857). near Brighton, specifically to perform an agreement Glasse, Q.C., in reply. for the purchase of the same.

Nov. 25.—Sir R. T. KINDERSLEY, V.C.-The plainIn 1857, Messrs. Banks & Vinall, builders, being tiffs insist that they were not bound to pay the 2101. about to take the plots in question on building leases for each of the five lots at the time of the expiration from the defendant, the plaintiffs agreed to advance of the three months; but that they might pay after them money thereon ; and by articles of agreement, such time, and that time was not of the essence of the dated the 22nd December, 1857, and made between the contract. The defendant, on the other hand, insists defendant (therein called the lessor) of the first part, that time was of the essence of the contract; and that the plaintiffs of the second part, and Messrs. Banks & is the question to be decided. Now, I apprehend that Vinall (therein called the lessees) of the third part, the the rule applicable to these cases is perfectly clear. defendant agreed to grant building leases of the plots There is no doubt that if the owner of lands, and a in question for ninety-years, to Messrs. Banks & Vinall; person disposed to purchase from him, enter into a and the deed contained the following clause :—“In contract, constituting, between themselves, the relacase at any time within the space of seven years from tion of vendor and purchaser, and there is a stipulathe 23rd day of June, 1856, the lessees shall be de- tion in such contract that the purchase money shall sirous of purchasing the fee-simple and inheritance of be paid on a certain day, this Court, in the ordinary all or any one of the said plots of ground, and of such case, has long established the principle, that time is their desire, shall give three months' notice to the not of the essence of the contract ; in other words, lessor, and shall, at the expiration of such notice, pay that the fixing a precise day for paying the money and unto him the sum of 2101. in respect of each plot completion does not put the parties into such a position, mentioned in such notice, and all rent payable to, and that the vendor may say, if payment is not made on including, the current quarter, then the lessor shall that day I will not complete.' On the other hand, it and will convey the freehold and inheritance of the is well settled, that where there is a contract between plot or plots mentioned in such notice, unto and to the owner of lands and another person, whether he be the use of the lessees, or as they shall appoint.” There a lessee or not, that if such other person shall do a cerwas also a proviso, that the heirs, executors, adminis- tain specified act he shall buy the property; then time is trators, or assigns of the respective parties to the of the essence of the contract. For the parties cannot deed should have the benefit of its provisions, as if be regarded as vendor and purchaser until the act to they had been originally parties thereto; and that the constitute that relation has been performed; the agreelessees, being satisfied with the title of the lessor to ment being this-" If you will do a certain act, I will the premises, should not call for evidence thereof, or convey to you my land,” this Court looks upon it as a make any objection thereto, but that in case they condition, on the performance of which the party who should exercise their option of purchasing the fee, the claims the benefit of the performance of the condition, lessor should be bound to deliver, to the satisfaction is to be entitled to certain privileges and benefits ; but, of the lessees, an abstract of title commencing with a in order to entitle him to them, he must perform the certain deed.

condition strictly; and if there is a day fixed for the On the 9th March, 1859, the lessees assigned all their performance of the condition, and it is passed over interest under the deed to the plaintiffs. On the 20th | by one single day, that prevents his having the right.

Page 4

into the Amendment Act. Then the question is,

COURT OF QUEEN'S BENCH. cannot the Court hold different language to persons who come at once for indemnity, and to those who

TRINITY TERM. keep the money in their hands as here, the delay

[Before BLACKBURN and SHEE, JJ.] being attributable to them? Interest ought, therefore, to be paid from the day of the collision, as the

LATHAM and Others v. REG.-June 4. barque was in ballast. (The Dundee, 2 Hagg. 137). Conspiracy—Indictment—Finding of jury-Quarter sesIn The Amalia (13 Weekly Rep. 111), interest was

sions, jurisdiction of allowed from the time when, but for the collision, the Each count in an indictment is, to all intents and purvoyage would have terminated, the vessel there earning freight.

poses, a separate indictment in itself. Where, therefore,

it appeared by the record, that the defendants pleaded Rolt, Q. C., in reply. It would be impossible to ap- not guilty generally to an indictment containing two ply the moment the collision happens. We came here

counts, and that the jury found a verdict of guilty upon immediately after the decision of the Court of Ad- the one count, but it did not appear that they found any miralty. There is nothing in the act against us.

verdict upon the other-Held, that the conviction and Swanzy's case is with us, and the decisions of the Court

judgment upon the one were, nevertheless, good. of Admiralty are not binding on this Court.

The defendants were tried at quarter sessions upon an inSir W. P. Wood, V.C.-It is quite clear that justice dictment, one of the counts of which charged a conrequires, that when there is a debt due, if it is not 8piracy,“ by divers false pretences against the statute in paid, damages should be given in the shape of interest. that case made and provided, the said R. B. of his The question is, however, as to fixing persons with in- moneys to defraud, against the form of the statute," &c.: terest when there is no express contract to pay it.

-Held, that the count sufficiently charged a conspiracy The Court of Admiralty is quite right in saying, in to obtain money by false pretences, and that it must be that case of The Amalia, that “interest is not given taken, after verdict, that the conspiracy was one of which by reason of indemnification for the loss; the loss a court of quarter sessions had cognisance, under the is the damage which has accrued, but interest has

5 & 6 Vict. c 38, s. 1. been given for this reason, because the loss was not

This was a writ of error on an indictment tried at paid for at the proper time.” The parties were greatly the Lancashire quarter sessions, at Salford, in October, debtors at the time of the collision, but until the Le

1863. gislature again intervened, as they were to be liable

The first count charged Benjamin Latham, Edmund for the value of the ship and freight, the practice of Taylor (and six others), being servants employed by the Court of Admiralty has been to consider that they Richard Bedley in the manufacture of salt cake, with were liable for interest upon the estimated value, at having obtained money from him for wages, paid acthe probable time when the vessel would have been at cording to the amount of work, by falsely pretending its destination, and from that time. Then this Ameud- that they had used at the furnaces in certain saltment Act has substituted the limitation of 81. per ton, works divers charges of salt of lcwt. each. and I agree, though it has no bearing on the present

The second count charged that “they, the said Bencase, that it covers the value of the ship and freight. jamin Latham, &c., being evil disposed persons, and The question is, on what day are you liable; and it is contriving and intending to defraud the said Robert not because you pay interest that you are liable be- Bedley of his money, unlawfully, knowingly, and deyond the 81. per ton, but because you do not pay the signedly, did amongst themselves combine, conspire, 8l. per ton when you ought.

confederate, and agree together, by diverse false preThe difficulty is, how far can interest be given for tences, against the form of the statute in that case a tort; and I think the Court of Admiralty was right made and provided, the said Richard Bedley of his in The Amalia in consulting the registrar; and I agree, moneys to defraud, against the form of the statute," that if during a long series of years interest has always &c. been given, then, that being the settled course, it has

It appeared by the record, that the defendants become the law, and will continue to be followed, and pleaded not guilty to the indictment generally, and I shall therefore allow it here.

that the entry of the verdict and judgment was as folThen the question is, when was the money due? lows:-" The jury, being sworn to speak the truth The parties must, I think, be liable from the date of upon the premises in the indictment above specified, the collision, and interest ought to be given from that say that Edmund Taylor is not guilty of the premises period. It is said, that interest is not due except from in the indictment above laid to his charge, and that the period when the party comes to this court; but as Benjamin Latham and the six other defendants are this is a matter of principle, I ought to follow the guilty of the premises aforesaid in the second count of Admiralty in calculating it from the day of the col- | the said indictment above laid to their charge, as aclision; for the Legislature never intended that there cording to the form and effect of the said second should be two rules on the subject.

count of the indictment is alleged," &c. Minute of decree.—Declare the plaintiffs entitled to it is considered by the Court here, that Edmund Taythe benefit of the act; and it appearing that the amount lor of the premises aforesaid be discharged, and go is 57111., regard being had &c., let the plaintiff pay it, without day; and it is further considered and adwith interest at 41. per cent. from the day of collision, judged by the Court, that Benjamin Latham (and the into court. Injunction, account of loss, usual inqui- six others) be remanded to the custody of the goverries, and apportionment. Time to be fixed. Tax, and nor to the house of correction at &c., and be kept in plaintiffs pay costs of the Admiralty suit. Adjourn safe custody and to hard labour for the term of two. further consideration. Liberty to apply.

calendar months." Note for reference - Maude & Pollock’s Merchant Ship- the errors assigned being, that it did not appear by the

Upon this record error was brought by the prisoners, record and proceedings that the jury gave any verdict on each of the counts, but on one only, viz. the second count; and, secondly, that it did not appear that there was any offence charged in the second count of which the court of quarter sessions had cognisance.

Page 5

Although the keeping of a pig is prohibited within the bills of the Metropolis, and removing and preventing Nui

of mortality, yet, between the ambit of the bills of mor- sances and Obstruction therein,' shall, so far as the tality and the ambit of the Metropolis Local Manage- same is in force, and is not inconsistent with the proment Act, the keeping of a pig does not subject the owner visions of the recited act, and this act, extend and to a penalty and forfeiture, unless the pig is an annoy. | apply to the metropolis, as defined in the first-recited ance to others.

act, and in this act, including any unpaved streets, The 73rd section of the 25 & 26 Vict. c. 102, enacts, that and notwithstanding any exceptions therein con

the powers of improving and regulating streets, and for tained.” The object of the recited act is the prevention the suppression of nuisances, contained in the 57 Geo. 3, of nuisances rather than the removal of them; and c. 29, intituled “ An Act for" (inter alia)“ removing it must be taken that this provision is included in and preventing Nuisances” in the streets of the metro- the terms of the 73rd section of the later act. The polis, shall extend to the limits of this first-recited act. 68th section of Michael Angelo Taylor's Act, under The 68th section of the 57 Geo. 3, c. 29, forbids the which the complaint was made, enacts, that “no perkeeping of swine within forty yards of any street. B. son or persons whomsoever, at any time or times was summoned under this section for so keeping a pig hereafter, shall breed, feed, or keep any kind or spewithin the ectended limits, but it was not proved that cies of swine in any house, building, yard, garden, or the pig was a nuisance:-Held, that the provisions of other hereditaments, situate and being in or within the 68th section of the recited act did not extend to the forty yards of any street or public place, in any parodistricts between the ambit of the former act (the bills of chial or other district within the jurisdiction of this mortality) and the ambit of the Metropolis Local Ma- act, nor shall suffer any kind or species of swine benagement Act, so as to compel a magistrate to convict longing to him or them, to stray or go about in any for the keeping of a pig not found to be a nuisance. street or public place in any parochial or other district This was an appeal from a decision of a magistrate. risdiction of this act was the bills of mortality; but

within the jurisdiction of this act.” The original ju* Case.—James King, the respondent, was summoned byəthe act of Victoria the limits were extended. The to appear before me, Henry Selfe Selfe, Esq., one of place in question being within those limits, it is liable the magistrates of the police courts of the metropolis, to be suppressed by the express words of the Legissitting at the Westminster Police Court, upon a com- lature, and it was not for the magistrate to inquire plaint made by Charles Lahie on behalf of the vestry whether, in point of fact, there was a nuisance or not, of St. Luke's, Chelsea, the appellants, 'for unlawfully when by the terms of the section the mere keeping of keeping swine in a yard within forty yards of a street the swine was forbidden. called Symons-street, in the parish of Chelsea, within

The respondent was not represented by counsel, the metropolis, contrary to the stats. 57 Geo. 3, c. 29,

ERLE, C. J.-In the statute called Michael Angelo s. 68, and 25 & 26 Vict. c. 102, s. 73.' ** It was proved that the respondent kept certain Taylor's Act (57 Geo. 3, c. 29, s. 58), is contained a

provision that no person shall keep any kind of swine swine in a yard called Brook's-yard, within forty yards on any premises within forty yards of any street. of Symons-street. It was not proved that they were Michael Angelo Taylor's Act extended to the bills of so kept as to be in any way a nuisance or injurious to mortality, in those days a dense focus of population, health. " The stat. 57 Geo. 3, c. 29. does not apply to the visions regulating the streets, making them convenient

if I may so say; it contains a great number of proparish of Chelsea, or to the place where the swine are for passage, and freeing them from nuisances; and it kept, unless it applies to it by virtue of the stat. 25 & contains a number of provisions for getting rid of 26 Vict. c. 102, s. 73.

actual nuisances, prior to sect. 68. That section pro- The appellants contended, that the whole of the hibits the keeping of any kind of swine, in whatever 68th section of the stat. 57 Geo. 3, c. 29, was extended

manner they might be kept, nuisance or no nuisance; to the metropolis by the stat. 25 & 26 Vict. c. 102, the existence of the animal within the bills of mors. 73; that its provisions were imperative; and, there- tality, if within forty yards of a street, is prohibited. fore, that I was bound, in point of law, to convict the So stood Michael Angelo Taylor's Act; and after that respondent.

came the Metropolis Local Management Act (25 & 26 - doubted whether (the swine in question not being Vict. c. 102), which extends to a much larger arca, a nuisance, nor straying in the streets) the case came

taking in several districts that are in their nature within the 73rd section of the 25 & 26 Vict. c. 102, rural, as well as several districts that are so densely which extends to the metropolis only so much of the populated as the neighbourhood of the Post-office; it 57 Geo. 3, c. 29, as relates to the powers of improving extends from below Woolwich to about Fulham, and and regulating the streets, and for the suppression of from Hampstead to a good deal further southward. nuisances; see especially sect. 67 of the last-mentioned It has taken in, therefore, a very large area, and the act. And, having regard to the provisions of the Po

Metropolitan Board have very extensive powers, lice Act, 2 & 3 Vict. c. 47, s. 60, clause 5, and to the originally created in that statute, for the removal Nuisances Removal Act, 18 & 19 Vict. c. 121, s. 8, I of every kind of nuisance actually existing. But the dismissed the complaint, on the ground that I was not question raised here is, whether the power of removing bound, in point of law, to convict the respondent.

a pig, and imposing a penalty for keeping the pig, and * The appellants, being dissatisfied with my decision, adjudging that the pig is forfeited, and so on-a very and conceiving it to be erroneous in point of law, I special clause-- whether that power is extended by the request the judgment of the Court of Common Pleas Metropolis Local Management Act to the local board whether I was bound, in point of law, to convict the by sect. 73 thereof, containing the following words :-respondent.

“ The powers of improving and regulating streets, and July 14, 1864.

"HENRY S. SELFE."

for the suppression of nuisances,"contained in Michael D. D. Keane, for the appellants.—The decision of Angelo Taylor's Act, the act of the 57 Geo. 3, intituled the magistrate was wrong.

The 73rd section of the An Act for the better paving, improving, and reguMetropolis Local Management Act, 1862, enacts, that lating the Streets of the Metropolis

, and removing " the powers of improving and regulating streets, and and preventing Nuisances and Obstructions therein," for the suppression of nuisances, contained in the shall extend to the larger area comprised in this sta57 Geo. 3, c. 29 (local and personal), intituled 'An Act tute. Now, is the power contained in sect. 68, of infor better paving, improving, and regulating the Streets flicting a penalty for keeping a pig within forty yards

Page 6

nefit when they check the disorderly, injury when dent in England, on the subject of returning to France, they molest the discreet; and we consider that, by and settling there till death, and to express the same construing the exception in a wide sense, we save wish and intention in his letters, but these were all from vexatious restriction many who have a right to burnt; and it seemed that these expressions were be trusted with self control, and at the same time mostly used in the earlier part of his stay in England. leave the prohibition in force as far as the interests of In this country he lived in the neighbourhood of Manreal piety are concerned. The result is, that the case chester, where his business was, always in furnished should be sent back. We place great reliance on the lodgings, and described himself in his will as “merlocal knowledge of magistrates. They can tell whether chant, of Manchester.” His executor, the defendant, the appellant believed, with reason, that his guests was his nephew; he was universal legatee. He had were travellers, taking refreshment according to the been, and was at the time of his death, resident in exception above given, or were seeking a pretence to Manchester, and engaged in his uncle's business. The that character, for the purpose of profaning Sunday, property bequeathed, besides the estate in France, conand passing it in drinking. Probably it would not be sisted chiefly of English railway shares. worth while to proceed further against the appellant Bovill and C. Pollock shewed cause.—They argued upon the present facts, because, unless he raises the that the domicil was, and the testator was, French. The question again by his future conduct, the information domicil of origin was never lost. (Thompson v. The will not have been without effect. If he does raise Advocate-General (12 Cl. & Fin. 1; Moorhouse v. Lord, 10 the question again, the principles which have been ex- H. L. C. 272; Hodgson v. De Beauchesne, 12 Moo, P. C. plained may probably guide to a decision in accordance 314; Munro v. Munro, 7 Cl. & Fin. 876). Secondly, as with our view of the law.

to the claim for succession duty, in the alternative of the deceased being found to have had a French domicil, it is contrary to the principle of the Succession

Duty Act to apply it in this way. (They cited Boosey COURT OF EXCHEQUER.

v. Jeffreys (6 Exch. 593).] There is nothing to lead TRINITY TERM.

us to construe the Succession Duty Act otherwise than [Coram POLLOCK, C. B., MARTIN, BRAMWELL, and

the Legacy Duty Act. Although the words which imCHANNELL, BB.]

pose the duty may be taken to apply, à priori, to

English property, wherever situated, they must be Re Domingo CAPDEVIELLE. — May 28 and 29, and taken to be limited by the maxim, mobilia sequunJune 13.

tur personam. [They cited also Aikman v. Aikman (3 Property of person domiciled abroad subject to succession Macq. 877); Bremner v. Freeman (1 Deane & S. 192);

duty-Wallop's Trusts (ante, p. 328)-Domicil. Brown v. Smith (21 L. J., Ex., 356); La Virginie (5 Rob. A native of France , having lived twenty-nine years in 98); and Lovelace's Settlement (4 De G. & J. 347).]

Sir R. Palmer, A. G., Sir R. P. Collier, S. G., and England, engaged in commerce, and having died here, Hanson, contra.—The facts of this case shew the case possessed of personal property here-Held, Per Martin and Channell , BB.-That (following Moor- and was desirous to regain it, but never did so. He

of a person who had lost his French domicil of origin, house v. Lord, 10 H. L. C. 272), he did not_acquire an English domicil; but that (following Wal- acquired a domicil here according to all the received

definitions of the word. (Phillimore on Domicil, 11, lop's Trusts, ante, p. 328) his estate was subject to 122, 144; Story's Conflict of Laws, s. 42, p. 50). The

succession duty. Per Pollock, C. B.—That, having acquired an English contains some expressions which go further than we

recent case in the House of Lords (Moorhouse v. Lord) domicil, his property was subject to legacy duty..

are prepared to follow ; but looking at the facts of the Bramwell, B., doubting whether he was not domiciled in England, and whether, if he were domiciled in France

, case, and the effect of the decision, it is not necessary

to contend that that decision is in itself exceptionthe decision in the case of Wallop's Trusts was correct. Per Pollock, C. B.-Semble, that a man may acquire an

able; indeed, it is in any case a binding authority.

[They referred also to the cases of Cockerell v. CockeEnglish domicil, for the purpose of testamentary duty, rell (2 Jur., N. S., 727); Bruce v. Bruce (2 B. & P. 229, without losing his domicil of origin.

note); Lyall v. Paton (23 L. J., Ch., 746); and The AtA writ of summons had been served upon the de- torney-General v. Rowe (8 Jur., N. S., 823.)] Secondly, fendant, executor of Domingo (or Dominique) Capde- assuming the domicil to be French, the case of Walvielle, deceased, calling upon him to shew cause why lop's Trust (ante, p. 328) is a direct authority that the he should not pay legacy duty or succession duty on Crown is entitled to succession duty. The case of the will of the deceased. The defendant contended Thompson v. The Advocate-General was decided upon that the deceased was not domiciled in this country. the particular words of the Legacy Duty Act. [They The facts bearing on this question appeared on the also cited Arnold v. Arnold (2 My. & C. 256).] affidavits, as follows:- The deceased was a native of

Cur, adv, vult. France, born at Montory, in the Pyrenees, and in 1808 MARTIN, B., delivered judgment on behalf of himhe removed to Cadiz and engaged in commerce. He self and Channell, B.-There are two questions in soon after proceeded to Gibraltar, and in 1830 to this case. First, was the testator Domingo CapdeEngland, where he remained till his death, which hap- vielle domiciled in England ? This is a question of pened in the year 1859, with the exception of two fact, to be determined upon affidavits which have been visits to France, which he paid in the year 1846 ; and produced by the executors, and which I think we are during the first of these visits he bought an estate in bound to consider as substantially true. We have no his native place for 125,000 francs, and established reason to suppose they are otherwise. They state that his niece in the house upon it, with orders to have a the testator was born in France, and left that country room always prepared for himself

. In the year 1846 prior to the year 1807 or 1808, to avoid the conscriphe executed a legal document to keep alive his rights tion. He first went to Spain, and thence to Gibraltar, in the inheritance of the family property at Montory and in 1830 came to England to commence the busiHe also carefully preserved his right to join in the ness of a commission agent at Manchester, and conelection of members of the Corps Legislatif, and sub- tinued it till the 6th January, 1859, when he died. scribed to several charities in France. He used fre- He was twice in France during that period, and purquently to talk with a fellow countryman, also resi- chased some real property there. I think it is a true

Page 7

that the domicil of the testator was English. Still, | An English single lady long resident in Germany held the case in the House of Lords to which my learned domiciled in England. brethren have referred, does undeniably convey the notion, that, in the opinion of the noble Lords who duty or succession duty on the will of Sarah Dallas,

English information and answer, on claim for legacy delivered judgment in that case, the definition of

deceased. Story is wrong, and a new definition of domicil

may be given, and acted upon. The judgments of no Court las (Chief Justice in the Common Pleas, temp. Geo. 4),

The deceased was the daughter of Sir Robert Dalare binding as judgments, except so far as the judg. and was born in the year 1804; she lived in England ments necessarily determine some certain point in the till the death of her mother, the last surviving parent, suit. They are not binding to the extent of the rea

till the year 1849, and then went to live at Baden sons given, although all who take part in the judgment Baden with the defendants, her sister and brotherconcur in those reasons. To this rule, the House of in-law, and continued to live there till her death, Lords is no exception. If the reasons for a judgment which happened in 1863, with the exception of occabe not necessarily bound up with the decision so as to sional visits to England to see her relatives, which took be a necessary part of it, they are, no doubt, to be place in 1850, 1854, 1857, and 1859. She lived in the spoken of with great respect, and every judge should house of her brother-in-law, and contributed 3501. per defer to them if he can; but he is not bound to do so; he is bound only by the essence or principle of the the end of her life, a new room was added to the house

annum to the expenses of the establishment. Towards judgment. On the case of Scotch domicil in question, for her particular use. Í should have come to the same conclusion as the her to Baden. Her property remained in the English

She took her library with House of Lords: I should not have thought it neces

funds. sary to introduce a new definition of domicil, and cast doubt upon the prior decisions on the subject. 1854. In it she describes herself as visiting at Colonel

Her will was made during her visit to England in For practical purposes (and all law, be it remembered, Parry's, Cumberland-terrace, Regent's Park. She left is of importance only as it is practically applicable to her sister, the countess, her sole legatee and executrix, the affairs of human life), I consider Story's definition and made two Englishmen trustees of the will. The the most reasonable of any. I am not inclined to will provided that the property should remain in the adopt the definition of Lord Wensleydale, which was English funds. The will was made according to Ennot necessary for the decision of the case before the House of Lords. I am more inclined to adopt the glish law; but it also satisfied the law of Baden. She arguments which have been advanced in the present same. While in Germany she discha

had previously made a will in Baden substantially the

ged her English, case by the Attorney-General. On these grounds, I consider the domicil to have at Lichtenthal (a beautiful spot at the extremity of

and took a German, maid. She desired to be buried been English; but suppose it French, we are met by the valley in which Baden lies, containing a convent the case in Chancery on the subject of succession and a small hamlet). And the Countess de Wahlstatt duty, which decided that the personal property of a deposed that she had stated to her, nothing should inperson domiciled abroad was liable to that tax. The duce her to return to England, even if the countess Court which decided that case is not a court of co-or

died, but she would stay in Germany. dinate jurisdiction with this Court in matters of revenue ; but the authority of that Court and of the Locke (Uanson with them), for the Crown.-In any

Sir R. Palmer, A. G., Sir R. P. Collier, S. G., and learned persons who compose it, is highly to be regarded, and is entitled to the greatest weight. If I

case the Crown is entitled to the sum claimed in the were to hold the domicil French, I personally should shape of legacy or succession duty. (Capdevielle's have considerable difficulty in deciding that this pro- case). But we are entitled to legacy duty, for there perty was liable to our succession duty ; but I so

was no change of domicil. It is said if we tax this far respect the opinions of the learned persons who property, so may the Duke of Baden. [Bramwell, B. gave the judgment in question, that I should be — They might make the same excuse in Baden, and so disposed, for my own part

, to adopt their decision, pay nowhere.] The deceased did not express an inthough I have very great doubt whether it be the cor

tention to gain a Badois domicil. She says, “ Gerrect one. But whether one takes one view of the case

many," and she may have desired a Prussian one. or the other, if the domicil be French, and if the deci- [Most of the cases cited in Capdevielle's case were re

ferred to.] sion of the Lords Justices be correct, the Crown is entitled to our judgment. So, if the learned Attor

Coleridge, Q. O., and Kay of the Chancery Bar), ney- 7-General be correct in saying the domicil is En- contra.-As to the first point: if what this lady did glish, which I think is really the correct view of the is not sufficient to work a ange of domicil, it is imsubject, then, no doubt, the Crown is entitled to our possible to say what would be. She could not do judgment. I therefore concur with the rest of the more. She had nothing but her books to take to GerCourt in giving judgment for the Crown, and I have many, and she took them. She had an English maid thought it right to make these remarks, concurring in about her, and she discharged her. She said she would that view of the case, because there are many parts of live in Germany as long as she lived, and actually the argument as to the principles that are involved in chose a resting-place; and when she went to England our decision, which I think by no means free from she described herself as a visitor. If a visit to Engdoubt.-Judgment for the Crown.

land would revest her domicil, so it would her sister's.

On the second point, we cannot resist a judgment, for [Coram POLLOCK, C. J., Bramwell, CilanNELL, and this Court (for the present) will follow the case of

BRAMWELL PIGOTT, BB.]

Capdevielle.

Without calling for a reply, MICHAELMAS TERM.

POLLOCK, C. B., said — Adhering to the doctrine THE ATTORNEY-GENERAL v. COUNT AND COUNTESS which we laid down in Capdevielle's case, we find that BLUCHER DE WAHLSTATT.-Nov. 21.

the judgment must in any case be for the Crown. Legacy and succession duties in the alternative-Capde- But we also think, on the other point, that there is vielle's case-Domicil.

not sufficient evidence of change of domicil. Probably Capdevielle's case (supra) as to the testamentary duty on if the lady had been herself asked, she would have

the property of a person domiciled abroad, followed. said, that she knew nothing of the law of domicil, or

Page 8

unnecessary to express an opinion on it, which would ment of hypothecation, dated the 3rd May, 1860, and only have been necessary if he had held that the order executed, attested, and registered in conformity with for taxation should be referred to.

the law of Ceylon, certain coffee estates in that island The judgment of the Vice-Chancellor must be re- were mortgaged by their owner, a Mr. Heale, to the versed, by declaring that, in addition to the accounts Chartered Mercantile Bank, to secure the due paydirected, it be referred to the judge in chambers to ment at maturity of bills of exchange, amounting to tax the costs, charges, and expenses due from the de- 50001., drawn by Heale on, and accepted by, a firm of fendant James Cross to the petitioner at the time of Raphael, Gardiner, & Co., who were merchants in the mortgage security of the 1st February, 1862, with London and also at Colombo, in Ceylon, and which subsequent directions that such amount should be in- bills had been discounted, and were held by the bank. cluded in the accounts, and in the sum to be paid to The bond or mortgage, together with the title deeds the parties entitled to the equity of redemption ; the of the estates, were left in the custody of the manager costs up to, and including, the hearing to be given to of the bank at Colombo. Some of the estates were the plaintiff, the mortgagee. No costs of the appeal. subject to prior charges. By another mortgage, dated Note for reference-Morg. Ch. Acts.

the 8th June, 1860, and which was also duly executed, attested, and registered according to the law of Cey

lon, the same estates were conveyed by Mr. Heale to SICHEL v. RAPHAEL.—Nov. 11 and 12, and Dec. 5. Raphael, Gardiner, & Co., subject to the mortgage to Mortgage— Equitable assignment of-BondLaw of the bank, and also to the former charges, as a security Ceylon-Notice.

for all moneys advanced and paid by Raphael & Co. to

or for Heale, and of all bills of exchange that had been By a bond executed and registered according to the law or should be drawn by Heale upon, and accepted and of Ceylon, certain estates in the island were mortgaged paid by, Raphael & Co., and for all other loans, disby H. to a bank to secure the payment at maturity of counts, credits, advances, and payments of any and certain bills of exchange drawn by H. on, and accepted every description, by Raphael & Co., to or for the by, a firm of R., G., & Co., who were merchants in accommodation, or at the request, of Heale. By a England as well as at Ceylon. The bills were dis- deed-poll under the seal of the Chartered Mercantile counted by the bank. The bond and title deeds were Bank, dated the 19th June, 1860, after reciting the deposited with the manager of the bunk at Ceylon. By mortgage to the bank, and also reciting that it was another mortgage, also made according to the law of agreed, at the time of the giving of such security, that Ceylon, the estates were conveyed by H. to R., G., &

on payment of the said bills (meaning the acceptances Co., subject to the bank mortgage, as a security for money for 50001.), the Chartered Bank should hold the bonds advanced, and the payment of all bills of exchange that and mortgages at the disposal and for the benefit of had or should be drawn upon, and be paid by, R., G., & Raphael & Gardiner; and further reciting, that RaCo. By a deed-poll, under the seal of the bank, the phael & Gardiner had undertaken to pay the bills at bank covenanted, on payment of the bills by R., G., maturity, and had requested the bank to transfer the & Co., to assign to them the bonil. This instrument bond to them on payment of the bills; it was witwas not executed in such a manner as the law of Ceylon nessed, that the Chartered Bank did thereby covenant, required. in order to make it effectual. When the bills on payment of the bills at maturity, to assign and approached maturity, R., G., & Co.,applied to the transfer to Raphael & Gardiner, their heirs, executors, plaintiff's for a loan of money to take them up, and the administrators, and assigns, the said bond of the 3rd plaintiff's made the advance on the terms that the bond May, 1860, and all the right, title, and interest of the should be transferred to them; and accordingly one of bank therein and thereto, and to the debts thereby the partners of R., G., & Co. wrote to the bank, refer- intended to be secured. I think it is proved by the ring to the covenant entered into

, by the bank, and to the evidence, that this instrument was not executed and fact that they had paid the bills, and called upon the attested in such manner as the law of Ceylon requires bunk to assign to the plaintiffs the bond, and all other in order to make it effectual as a transfer of the mort. securities held by the bank. The receipt of the letter

gage. It was, therefore, a personal contract, and acwas acknowledged by the bank, with a statement that cording to the law of England, as administered in this they had sent a copy of it to their manager at Ceylon: court, would amount to a declaration of trust by the Tield, that the letter, according to the law of England, bank, of the mortgage securities in favour of Messrs. would have amounted to a valid assignment in equity to Raphael & Gardiner, in the event of their paying the the plaintiffs of the contract to transfer the mortgage bills of exchange. When the bills for 50001. approached securities; but that according to the law of Ceylon, maturity, Raphael & Co. applied to the plaintiffs for a neither the deed of covenant, nor the letter, nor the pay-loan of money to take them up, and the necessary ment of the bills of exchange, constituted a valid assign- sums for that purpose were advanced and lent by ment.

the plaintiffs to Raphael & Co., and were paid to the This was an appeal from a decision of Sir W. P. bankers of the last-mentioned firm to the credit of Wood, V. C. The facts will be found sufficiently de their account, and the bills of exchange were then paid tailed in the judgment below.

by Raphael & Co. This advance was made by the Sir Hugh Cairns, Q. C., and Jones Bateman appeared plaintiffs to Raphael & Co., on the terms and agreefor the plaintiffs, who were the appellants.

ment, that the bond or mortgage of the 3rd May, 1860, Rolt, Q. C., and Bowring, for the respondents, the for securing the bills of exchange, should be transbank.

ferred by the Chartered Bank to the plaintiffs; and Bateman, in reply.

accordingly Mr. Gardiner, who was in London (his The following authorities were cited :-Collyer v. partner, Mr. Raphael, having previously left England Fallon (Turn. & R. 459); Jones v. Farrall (1 De G. & for Ceylon), sent a letter, dated the 10th November, J. 208); Er parte South (3 Swanst. 392); Tibbits v. 1860, signed for himself and Raphael, to the CharGeorge (5 Ad. & El. 107); Williams v. Emril (14 East, tered Bank, in which, after referring to the deed of 585); Gibson v. Minet (9 Moo. C. B. 31); Garrow v. covenant, dated the 19th June, 1860, and to the fact, Lord Lauderdale (3 Sim. 1); Sand's Com. c. 7; Domat, that they had paid the bills for 50001., Raphael & GarCivil Law, lib. 3. tit. 1, s. 6; Scott v. Poncher (3 Mer. diner called on the Chartered Bank to assign and 652); and Waterhouse v. Stansfield (9 Hare, 234). transfer to the plaintiffs the bond of the 3rd May,

Dec. 5.—LORD CHANCELLOR.-By a bond or instru- | 1860, for 50001., and all securities held by the bank

Page 9

tion was precedent, it would be a gift which need not either proceed in the absence of them, or appoint some take effect within the legal limits, and the estate would person to represent her estate. be undisposed of, except as to the life estate given to His Honor directed a statement to be inserted in Mrs. Bennett. But if the condition is subsequent, no the order, to the effect that the estate of the testator time is pointed out within which it is to take effect, was insolvent. and I cannot import a time Majority is not men- Note for reference-Morg. Ch. Acts and Orders, 211, 3rd ed. tioned. The testator has said the estate is in him, and whenever he refuses to take the name, the gift over is to take place. But it is said on behalf of the eldest son, that the

VICE-CHANCELLOR STUART'S COURT, condition, if within the legal limits, has been performed, for the eldest son was baptised Millard, while the other

PHILLIPS v. PHILLIPS.-Nov. 23. side contend that he must take that name as a sur- Will — Construction – Gift to cousins-- Substitutionary name; and that although a Christian name is indelible,

clause. and a surname is not, that is not what the testator meant. But I do not see from the will that it was the A testator, in 1858, gare legacies to his cousins, the sons testator's intention that the surname should be taken. I

and daughters of the brothers and sisters of his late These shifting clauses must be looked at strictly, and

mother and father; and if it should happen that any of must only receive the strict construction the language

those cousins should die during his lifetime, and leave

issue which should survive him, he directed that the imports. And when the testator has said, “take the name of Millard," if quocunque modo the devisee has

legacies which would have been payable to any deceased taken the name, whether as a Christian name or a sur

parent should be paid to the children; and if the err

cutor's should fail to discover any one or more of his name, it is equally a compliance with the condition. There is no construction of this will which is not open to

saitl cousins who might be living at the time of his desome difficulty, but the construction I have put upon it

cease, or any one or more of the children of his cousins

as might have died during his lifetime, and no applicapresents less difficulty than any other. The view I take

tion should be made to the esecutors by any one or more is, that the testator has expressed an intention to give an estate for life to Mrs. Bennett, with a remainder

of his cousins, or by the children, within cightcen months in fee to her first-born son, vesting in him on his

after his decease, the bequests were to be voiel :-Held,

that the children of cousins who had died before the date coming into ease, with a divesting clause should he

of the will were entilled to legacies. not take the name of Millard. The same conclusion must be come to with regard to the personalty. There Edward Barber, by his will, dated in July, 1858, will be a declaration to that effect, and the costs of after making numerous bequests, gave to each and all parties will come out of the estate.

every other of his cousins, sons and daughters of the Note for reference-2 Jarm. Wills, 45, 173, 2nd ed.

several brothers and sisters of his late mother who were not personally named or otherwise mentioned in

his will, or in any codicil thereto, the sum of 1001.; LEYCESTER v. NORRIS.-Dec. 8.

and if it should happen that any of those cousins should Practice-Revivor.

die during his lifetime, and leave issue which should

survive him, then he directed that the legacies which Where a plaintiff, beneficially interested in the subject would have been payable to any deceased parent

matter of an administration suit, and also next friend of should be paid to his or her children ; and to each and infunts plaintiff's therein, died after the ordinary admi- every of his cousins, sons and daughters of the several nistration decree, but before certificate, the Court, upon brothers and sisters of his late father, he gave the sum being satisfied that the estate was insolvent, ordered the of 1001., provided that in case it should happen that suit to be revived against the same defendant without the number of such last-mentioned cousins was less making the personal representative of such deceased than twenty, then in lieu of the several legacies given plaintiff a party.

to them, he gave to them collectively the sum of 20001., The testator in this suit bequeathed his personal to be divided between them equally ; and if it should estate to his wife absolutely, and devised his real es- happen that any of those cousins should die during his tate to his wife for life, with remainder to his two sons lifetime, and have issue which should survive him (the in fee, and appointed a sole executor. A suit was in- testator), then he directed that the several legacies stituted for the administration of his estate by his which would have been payable to any deceased pawidow, as a plaintiff and also as next friend of the two rent should be paid to his or her children ; provided, infant children, against the executor, and the ordinary that if it should happen that his executors should fail administration decree was made in 1862, under which, to discover and find out by such inquiry, and by such the personal estate being found insufficient to pay means of investigation as they might think it necesthe debts, the real estate had been sold, but the chief sary to adopt (and this he left entirely to their discreclerk had not yet made his certificate. The widow tion), any one or more of his said cousins, whether of died in October last; and

his father's family or of his mother's, who might be Rawlinson now applied for an order to revive the living at the time of his decease, or any one or more suit against the executor, who was the sole defendant, of the children of such of his cousins as might have without bringing any personal representative of the died during his lifetime, and that no application should deceased plaintiff before the Court. The estate being be to his executors by any one or more of his cousins, quite insufficient to pay even the specialty debts, it or by the children of such cousins as had died, or on was clear that the representatives of the deceased his, her, or their behalf by some person or persons plaintiff had no interest. [He cited Ure v. Lord duly authorised for the several legacies above given, (ante, p. 1042).]

or any or either of them, within the term of eighteen Sir R. T. KINDERSLEY, V.C. (after consulting with months next after his decease, then the several beMr. Colville, the registrar in court), said-Upon an al-quests hereinbefore made to them, or either of them, legation that there is no interest in the representa- should cease and be void, and no claim on account tives of this lady, I think I may make the order to thereof should thenceforth be allowed to them, or revive without bringing them before the Court; and either of them, their heirs, executors, administrators, or when the cause comes on for hearing, the Court can I assigns, on his estate, or upon the executors of his will,

Page 10

The testator bequeathed the residue of his estates to their parents had been alive.” In that case the testathe plaintiff, and died in 1860. The ten defendants- tor would have shewn that he saw the parent who was children of four of the testator's cousins who died in dead never could take anything; and, in my opinion, the testator's lifetime, and prior to the date of his these expressions must be considered as substituting will-claimed four legacies of 1001. each between them the children for parents, and be construed in a way in the manner mentioned in the bill, but the execu- in which the words shall have an intelligible meaning. tors would not pay them without the sanction of the What Sir W. Grant decided in Christopherson v. Naylor Court, and a declaration that they were entitled. was this, that a substitutionary gift could only be valid

Malins, Q. C., and Hardy submitted, that the gift in a case where children or other persons are substituted was one to that class of cousins who were living at the for persons who might take, and had a chance of surtime when the testator made his will, and that the viving the testator. The more I have considered the substitutionary clause applied only to the children of question, the more it seems to me that this is too narthose cousins who might afterwards die. If the gift row a construction of a gift, by way of substitution. had been to cousins merely, only first cousins could If, in the case of Christopherson v. Naylor the words have taken. All the children of those who were dead had been, not "shall happen to die,” but if the tesat the time the will was made must be excluded. There tator had said, "if any of my brothers and sisters are were no words of gift in the latter clause of the will. dead, or shall die in my life, the children shall take the The testator did not refer to any new class of persons, shares of parents," it is perfectly plain that a gift to but merely referred back to those previously men- the issue of the parents would have been valid. But, tioned. There was nothing to enlarge the import of according to Christopherson v. Naylor, that would have the preceding words, or to enlarge the words pre- meant a chance of taking any gift. Sir W. Grant was viously described. [The cases cited were, Parsons v. one of the greatest masters of reasoning who ever uttered Gulliford (ante, p. 231); Loving v. Thomas (1 Drew. & his words in public, and whenever he spoke it was imS. 497, 499); Christopherson v. Naylor (1 Mer. 320); possible not to understand his expressed thoughts; Waugh v. Waugh (2 My. & K. 41); Smith v. Pepper and there is no judgment more accurately expressed (27 Beav. 86); Coulthurst v. Carter (15 Beav. 421); than in Christopherson v. Naylor. Sir R. T. Kindersley, Congreve v. Palmer (16 Beav. 435); Crook v. Whiltey V. C., felt the force of it in Loring v. Thomas, but re(7 De G., Mac., & G. 490); and Stewart v. Jones (3 De jected the conclusion; and I must do so now, for my G. & J. 532).]

understanding rejects the notion that a substitutionary Bevir appeared for the executors; and

clause excludes a person who has only a chance of Greene, Q. C., and C. Barber, for the defendants, the taking. However, that which was decided by Sir W. children of former deceased' cousins, but were not Grant in Christopherson v. Naylor has no application to

this case, because here the language in the subsequent Sir J. STUART, V. C., said that this case, which had part of the will shews that those who were dead at the had been elaborately and carefully argued, was, like date of the will as well as those living at that time, most other cases of the same kind, one of very con- and might die in the lifetime of the testator, were in siderable difficulty:

his mind when he directed that the legatees should be The words which have occasioned the difficulty found out. The testator says, that any one or more here are those words which import futurity, and of his cousins, whether of his father or mother's which seem to exclude children of any cousin who family, who might be living at his decease, or any one was dead at the date of the will; and those words or more of the children of his cousins as might have are, “if it shall happen that any of those, my said died in his lifetime: “as might have died,” includes cousins, shall die during my lifetime, and leave issue." the whole course of his lifetime before his will was These words import futurity in the wide sense no- made as after it; and when I find these expressions, I ticed by Sir W. Grant in Christopherson v. Naylor. must do justice to the testator, and to do that it is This Court, however, does not construe them in that necessary, in my opinion, to hold in this case that the, wide sense, but it controls the meaning of those children of those cousins who were dead at the time words; and if they stood alone, would construe them the will was made are entitled to the share which they as meaning, “shall die in my lifetime.” This tes- now claim. tator has limited the gift in a way not referred to

Note for reference-2 Jarm. Wills, 151. in Christopherson v. Naylor, because he says,

" die in my lifetime.” The words“ if it shall happen that any of these, my cousins, shall die during my lifetime,” ex- MARSHALL v. SMITH.-Dec. 3, 5, and 6. tend necessarily to futurity, and exclude anything Dower-Statute of Limitations (3 & 4 Will. 4, c. 27). which has passed; and it is the duty of the Court to look at the context, to see if that restricted meaning 4 bill filed thirty-one years after the death of a teis enlarged by any other expression of the testator. nant in tuil in possession, by his widow and her preThere are directions in the will, that after the testa- sent husband, praying for a declaration that they were tor's death inquiries shall be made for the children of

entitled to dower out of the hereditaments which the those cousins who were dead; and in these directions

former husband was, during his marriage with her, for inquiries which are to be made, it is perfectly plain seised for an estate of inheritance, dismissed, with costs

, that he includes inquiries for cousins who might have

on the ground that dower is an interest in land, and that been dead at the date of his will. It is impossible for

proceedings to recover it must be commenced within the Court to shut its eyes to a direction of this kind,

twenty years after the right to it accrues. because, as I have already observed, in these gifts which This was a suit instituted in April, 1860, by William are called gifts by way of substitution, a case may oc- Marshall and Mary his wife, praying thať they, in cur of a gift, expressed to be by way of substitution, right of the latter, might be declared to be entitled to being a gift by substituting other persons for a person dower out of the hereditaments and premises, of which who never could have taken at all; and this testator Samuel Smith, the late husband of Mary, was, at any might well have said, as to the children of those cou- time during his marriage with her, seised for an estate sins, the children of the brothers and sisters of his of inheritance; for an account of such real estates; father and mother who were already dead, “ I direct that the plaintiffs might be let into possession and that their

children shall take the same share which receipt of the rents and profits of one-third part they would have taken under the preceding gift if thereof, and might be declared to be entitled to hold

Page 11

MICHAELMAS TERM.

statement of the nature of the plaintiff's interest in

the laid lands. [Before COCKBURN, C. J., CROMPTON, MELLOR, and

A rule was accordingly obtained ; against which, SHEE, JJ.]

Coleridge, Q. C., and Patchett shewed cause.— The HEALEY v. The Thames Valley Railway Com- question is, whether the notice served on behalf of PANY,- Nov. 3.

the plaintiff upon the company be a sufficient one, Company-Compensation—" Nature of interest" in lands within the meaning of sect. 68 of the 8 & 9 Vict. c. 18, --Notice under sect. 68 of the Lands Clauses Conso- and it is contended, that the requirements of the seclilation Act (8 & 9 Vict. c. 18)-Sufficiency of.

tion have been sufficiently complied with. [Cromp

ton, J.-Where the claimant requires that the question In a notice given to a railway company, under sect. 68 of of compensation should be settled by arbitration, he

the Lands Clauses Consolidation Act (8 & 9 Vict.c. 18), must serve a notice on the company, stating the nathe claimant's interest in the lands was thus stateil:-“ The ture of the interest in such lands," &c.; and if he prosaid lands and hereditaments are held by me on lease:” ceed under the latter part of the section, which pro-11eld (distinguishing Cameron v. The Charing cross vides for the settlement of questions by jury, his Railway Company (16 C. B., N. S., 430)), that the no

notice must state“ such particulars as aforesaid." tice was insufficient.

What we have to decide is, whether or no the notice This was an action by the plaintiff, under sect. 68 should state, not only the nature of the claimant's of the Lands Clauses Consolidation Act (8 & 9 Vict. tenure in the lands, but also such other particulars, c. 18), to recover 10311. 148. 6d., the amount of his such as the duration of a term (where such exists), claim for compensation in respect of lands taken by &c., as would enable the company to judge of the the defendants in May, 1863, and which lands were justico of the claim made upon them. Mellor, J.then held by the plaintiff for the residue of a term The clause under which you proceed is a highly penal of eleven years, commencing at Midsummer, 1853. one; should you not, in such a case, afford the cam

At the trial, which took place before Crompton, J., pany all possible information ?]. The company are at the Sittings at Westminster during last Easter Term, placed in no difficulty, inasmuch as under sect. 122 it appeared that the plaintiff having claimed the above they may require the production of the lease, and in sum, which the company declined to pay, his solicitor, case of the non-production thereof within twenty-one on the 7th December, 1863, served on the company a days, the claimant may be considered as a tenant from notice, purporting to be in pursuance of sect. 68 of year to year only. [Mellor, J.-Under sect. 68, the the Lands Clauses Consolidation Act, wherein the company are either to enter into a written agreement plaintiff's interest in the said lands was thus de- to pay the sum claimed, or summon a jury within scribed :—“ The said lands and hereditaments are held twenty-one days of the service of the notice upon them. by me on lease, and are used partly as and for private It does not seem to me that sect. 122 is applicable to grounds, and partly for farming and agricultural pur- this case.] It is material to note the difference beposes.” The company disregarded the said notice, and tween the language of sect. 68, where the company did not issue their warrant within twenty-one days to take lands without compensation tendered and invito the sheriff to summon a jury to assess the damage, the owner, and that of sect. 21, where they give notice whereupon the present action was brought. The jury of their intention to take lands for the purpose of found a verdict for the plaintiff for the amount their undertaking. Under the last-mentioned section claimed, leave being reserved to the defendants to they are entitled to demand of the owners

the

parenter a verdict for them, on the ground that the said ticulars of their estate and interest in such lands, and notice was not a valid one, within the meaning of of the claims made by them in respect thereof;" it is sect. 68° of the statute, as not containing a sufficient clear, therefore, that the Legislature intended' a dis

tinction between the two cases; and Cameron y. The Under sect. 68 of the 8 & 9 Vict. c. 18, “ if any party where a similar notice was held good, is in point.

Charing-cross Railway Company (16 C. B., N. S., 430), shall be entitled to any compensation in respect of any lands, or of any interest therein, which shall have been taken for, [Mellor, J:-There the injury was to the occupation or injuriously affected by, the execution of the works, and for only, and had no reference to the legal interest of the which the promoters of the undertaking shall not have made claimant in the premises.] [They also referred to satisfaction under the provisions of this or the special act, or sects. 38 and 51, and to Re The North Staffordshire any act incorporated therewith; and if the compensation Railway Company v. Landor (2 Exch. 235).] claimed in such case shall exceed the sum of 501., such party Bovill, Q. C., and Ilorace Lloyd, in support of the may have the same settled either by arbitration or by the rule.-Cameron v. The Charing-cross Railway Company verdict of a jury as he shall think fit; and if such party de, is distinguishable. That decision proceeded upon the sire to have the same settled by arbitration, it shall be lawful grounds that the injury was not an injury to the for him to give notice in writing to the promoters of the undertaking of such his desire, stating in such notice the nature estate, but to the occupation of the plaintiff

, affecting of the interest in such lands in respect of which he claims his trade only; and even under those circumstances, compensation, and the amount of the compensation so Erle, C. J., says, “ It is certainly the barest notice that claimed therein; and unless the promoters of the under- can possibly pass. I cannot bring my mind to nontaking be willing to pay the amount of compensation so suit the plaintiff, though I entertain great doubt;" claimed, and shall enter into a written agreement for that and to the same effect are the judgments of the other purpose within twenty-one days after the receipt of any such members of the Court. Then the terms, “particulars notice from any party so entitled, the saine shall be settled by arbitration, in the manner liereinbefore provided; or if the reference to the previous words, “nature of the in

as aforesaid,” in the latter part of sect. 68, taken in party so entitled as aforesaid desire to liave such question of terest,” must be understood as explanatory of them, compensation settled by jury, it shall be lawful for him to and as shewing that something beyond the nature of give notice in writing of such his desire to the promoters of the claimant's interest was required to be stated. [They the undertaking, stating such particulars as aforesaid; and unless the promoters of the undertaking be willing to pay the

were then stopped.] amount of compensation so claimed, and enter into a written

COCKBURN, C. J.-I am of opinion that this rule agreeinent for that purpose, they shall, within twenty-one days after the receipt of such notice, issue their warrant to be liable to pay to the party so entitled the amount of comthe sheriff to summon a jury for settling the same, in the pensation so claimed, and the same may be recovered by manner herein provided; and in default thereof, they shall him, with costs, by action in any of the superior courts."

Page 12

and terminating before the occupation ceased ; the condly, that at the time of contracting the alleged notice, therefore, was rightly held to convey all the debt the defendant Charlotte Mary Henrietta was an information that the circumstances required. Here, infant; thirdly, payment. The plaintiffs replied to the however, something more strict and definite in the plea of infancy, that the debt was in respect of necesway of information is necessary to enable the com- saries; and upon this application, and the other pleas, pany to offer the proper amount of compensation; issue was joined. and, inasmuch as this has not been afforded, we must The action came on to be tried, before Erle, C. J., hold the notice to be insufficient.

and a common jury, on the 12th February last, when, SHEE, J.-I am of the same opinion. In consider by the consent of the parties, the jury found a verdict ing the effect of this section, we must look not only to for the plaintiffs for 731. 58. 6d., subject to the followthe terms of the section itself, but also to the terms ing special case :- The plaintiffs are attorneys and soof sect. 18, which is necessarily connected with it; licitors, practising at Gloucester; the defendant Capand further, as incidental thereto, to the provisions of tain John William Clayton was, in the summer of sects. 38 and 51. Sect. 68 provides for the settlement 1862, engaged to be married to his present wife, then by arbitration or jury of questions of compensation ; about eighteen years of age, and residing at Gloucesand if we look back to the earlier sections, we find that ter with her father, Colonel Somerset, with whom she after the expiration of the twenty-one days from the had always resided since her birth. On the 14th Auservice of the notice under sect. 18, the case is to be gust, 1862, Colonel Somerset called at the office of the treated (in case no arrangement be by that time en- plaintiffs, who had occasionally previously acted as his, tered into) as one of disputed compensation ; and then Colonel Somerset's, solicitors, with a letter from the the Legislature further requires, under sect. 38, that defendant John William Clayton, containing probefore the promoters issue their warrant for summing posals for a settlement on the terms following:up a jury, they shall give not less than ten days' no

“11, Portman-square. tice of their intention to cause such jury to be sum

“Dear Colonel Somerset,-I am not a rich man,

but moned, and to state therein what sum they are willing to give for the interest in the required lands, and for on my marriage. As all the rest of my property is

am able to settle on your daughter the sum of 10,0001. the damage sustained ; and if they offer less than is entailed, provision is made in my father's will for my subsequently awarded, then, by sect. 51, the costs of wife and children. I shall be much obliged if you will the inquiry are to be borne by themselves. These nominate a trustee; and I refer you to my solicitor

, sections appear to be incorporated with sect. 68; and Mr. Charles Barnard, 4, Gray's-place, Gray’s-inn, W.C. it appears to me imp ble that, under this latter sec

I can also allow the young lady 1001. per annum pin tion, the Legislature could have intended otherwise

money. than that the notice to the company should furnish

" I am &c., them with such information as might be reasonably

“ J. W. CLAYTON." necessary for their guidance in making their offer of compensation. Here, the notice does not furnish the Colonel Somerset instructed the plaintiffs to take slightest means of doing so, and the rule should be, the necessary steps in the matter for the lady, his therefore, made absolute.-. Rule absolute.

daughter, and named his cousin, Mr. Granville Somerset, as trustee on behalf of the lady, and requested Messrs. Helps to put themselves in communication

with him. The plaintiffs acted accordingly, and Mr. COURT OF COMMON PLEAS.

Granville Somerset, on behalf of the three. On the MICHAELMAS TERM.

14th August, 1862, the plaintiffs wrote as follows to [Before Williams, Willes, Byles, and Keating, Mr. Barnard, the then attorney for Captain Clayton :

KEATING JJ.)

“1, Barton-street, Gloucester,

14th August, 1862. HELPs and Another v. CLAYTON and Wife.-June 25

“Dear Sir,– We are instructed by our client, Coand Nov, 10.

lonel Somerset, to prepare the settlement on the Marriage-Expenses of settlement-Liability of husband approaching marriage of his daughter with Captain -Necessaries.

Clayton. We understand Captain Clayton's father Where parties have intermarried, the retainer of the lady's proposes to settle 10,0001. on the young people, and solicitor to draw a settlement of personal property by Somerset has been asked to name a trustee, and we

to allow the lady 1001. a year for pin money. Colonel the husband is the act of the lady or her parent, as the case may be, but usage makes the husband liable

are instructed to name his relative, Granville Somerto indemnify whoever, on the part of the wife, has pro- Will you kindly at once prepare proposals for the set

set, of 3, Tanfield-court, Temple, barrister -at - law. perly incurred the expense. A settlement which affords a provision to an infant, who tlement, and supply us with an abstract of any will or on her marriage had no other certain provision, is a

family settlement (if any such abstract should be re

quired) to shew the title to the money. We undernecessary. Quære, whether the provisions in the settlement may be said stand the marriage is to take place very shortly. We absolutely to bind the infant?

shall, therefore, be glad to see you as soon as pos

sible. This was an action brought by the plaintiffs for

“ We are, &c., money payable by the defendant Charlotte Mary Hen

" RICHARD HELPS & Son." rietta, whilst she was sole and unmarried, to the plaintiffs ; for work done and materials provided by the

To this letter Mr. Barnard replied, as follows:plaintiffs for the said Charlotte Mary Henrietta, whilst

“ 4, Gray's-inn-place, Gray's-inn, W.C. she was sole and unmarried, at her request ; for fees

18th August, 1862. due and of right payable from the said Charlotte “Gentlemen,- I have to acknowledge the receipt of Mary Henrietta, whilst she was sole and unmarried, your letter of the 14th inst., and I would have anto the plaintff's, in respect thereof; and for money paid swered it before, but that I was out of town. Capby the plaintiffs for the said Charlotte Mary Henrietta, tain Clayton some time since instructed me as to the whilst she was sole and unmarried, at her request. settlement, the draft of which I have already pre

The defendants pleaded, first, never indebted; se- 1 pared, and it is now before counsel for settlement. I

Page 13

have been very proper that the judge's discretion | hearing might be received on the signature of a should be exercised upon evidence which may not counsel who was not engaged in the matter on the have been brought before him in the regular way; and former hearing. It appeared, that the senior counsel in that case it is very probable that I should not have in the case had declined to sign the petition, and the arrived at a different opinion from the Vice-Chancel junior counsel had retired from the bar. lor without having more of the facts which were with- THE LORD CHANCELLOR said that the records of in the knowledge of the Vice-Chancellor. But here I the court had been examined by the registrar, but he have only to consider whether the Vice-Chancellor had been unable to find that a petition of rehearing was justified in making the order that Mr. Settle was had ever been received which had not been signed, at to repay this sum of 1001. This is not a matter in least by one of the counsel engaged in the hearing which I can refer to his Honor for a statement of below. In the present case, it appeared that the circumstances known to his Honor, not in accordance plaintiff had been represented by two counsel ; one of with the ordinary rules of evidence. I think, there whom, the junior counsel, had retired from the bar, fore, that, in point of jurisdiction, this order ought and the other, one of her Majesty's counsel, had denot to have been made; but, waiving the point of clined to certify that it was a proper case for a jurisdiction, I do not find any circumstances in evi- rehearing. Under these circumstances, his Lordship dence which would warrant the exercise of the juris- could not accede to the request, that the signature of diction, even if it had been competent to the Court to a counsel not engaged in the cause in the court below exercise it. I must reverse the order, so far as it di- should be deemed sufficient. rects 1001. to be repaid, and direct the 1001. to be re

Note for reference-1 Sid. Szpith's Ch. Prac. 719. turned to Mr. Settle; and, under the circumstances, I shall abstain from saying anything as to the costs of this application. Note for reference-1 Sid. Smith's Ch. Prac. 127.

COURT OF APPEAL IN CHANCERY.

Smith v. WHITMORE.—May 31 and July 28.
Baring v. HARRIS.-Dec. 8 and 9.

Award-Jurisdiction.
Practice—Costs of appeal.

An award upon a dispute between W. and S. was made Where on an appeal the decision of the Court below is in June, 1859. In December, 1859, W. brought an ac

reversed, the appellant is entitled to the costs of the ap- tion against S. on the award, and S. pleaded nul tiel peal.

agard. It was decided by the Court of law, in DecemIn this case a motion by way of appeal from an

ber, 1861, that under this plea the defendant could not order of Sir R. T. Kindersley, V. C., having been de

shew the award to have been invalid for irregularity, cided in favour of the appellant, and the order of the

and judgment was given for W. In March, 1862, S. Vice-Chancellor reversed, the question was raised whe

filed a bill to set aside the award on the ground of irrether the appellant was entitled to the costs of the ap

gularity :-Held, by Sir J. L. Knight Bruce, L. J., peal as well as those in the court below, and the case

that S. had lost his equity against the award. was adjourned to afford an opportunity to look into Held, by Sir G. J. Turner, L. J., that S. was not bound the practice.

to make the award a rule of court, and then proceed to Glasse, Q. C., and Kay, for the appellant, contended

set it aside at law, and was not too late to proceed in that it was now the custom of the Lords Justices,

equity. where an appellant was successful, to give him the Where a plaintiff has the right of proceeding either at laro costs of the appeal as well as those of the Court below,

or in equity, he does not lose his right to proceed in equity and referred to Lillie v. Legh (3 De G. & J. 204-210);

by not proceeding at lav). Ralli v. The Universal Marine Insurance Company (8 A dispute having arisen between Gilbert Smith, the Jur., N. S., 495; 10 Weekly Rep. 280); and Collins v. plaintiff in this case, and F. Whitmore, the matter Burton (4 De G. & J. 618, 619; S. C., 5 Jur., N. S., was referred to arbitration. The arbitrators made an 1113); all decisions of the Lords Justices, in which award that 3641. was due to Whitmore, but were this practice had been pursued. In Leidemann v. Schutz alleged not to have heard the parties. In December, (14 C. B. 52), a court of law had also held, that in all 1859, Whitmore brought an action against Smith on cases the costs should abide the event.

the award, to which Smith pleaded nul tiel agard. At Malins, Q. C. (amicus curiæ), referred to Powell the trial a verdict was given for the defendant on the v. Lovegrove (8 De G., Mac., & G. 357), another case ground of the irregularity of the award, but on appeal in which the Lords Justices had followed the same to the Exchequer Chamber, that Court decided, in

December, 1861, that the irregularity of the award Baily, Q. C., and Cotton, for the plaintiffs, admitted could not be shewn under the plea of nul tiel agard, that the old practice had been broken into by the and a verdict was entered for Whitmore, the plaintiff Lords Justices, but the Court exercised a discretion in at law. In March, 1862, Smith filed a bill to set aside each particular case.

the award on the ground of its irregularity, and the The LORD CHANCELLOR was glad to find that so cause came on to be heard before Vice-Chancellor wholesome a rule had been laid down, which his Lord - Wood, who dismissed the bill, mainly on the ground ship would follow; and in the present case the appel- that Smith might, by making the award & rule of lant must have his costs of appeal.

court, have raised the same question at law. The case Note for reference-1 Sid. Smith's Ch. Prac. 725. is fully reported ante, p. 65. The plaintiff Smith ap

pealed. The same counsel appeared, and the same ar.

guments were used, as before Vice-Chancellor Wood. PARKINSON v. HANBURY.-Dec, 13.

THEIR LORDShips reserved judgment. Practice- Appeal-Signature of one counsel. July 28.—Sir J.L. KNIGHT BRUCE, L.J.-The main An application to receive a petition of rehearing, signed by plaintiff in equity, can be relieved in equity against a

question in this case is, whether Mr. Gilbert Smith, the one counsel, was refused, on the ground that the counsel had not been engaged on the hearing in the court below. regularly in an action brought against him by Whit:

judgment at law obtained against him adversely and The plaintiff in person asked that a petition of re- more, one of the defendants in equity. The original

Page 14

pear, and if you do not find a contrary inference, that

COURT OF QUEEN'S BENCH. it must be assumed. But is not that assumption rebutted, when you find that the father is doing for Mrs.

TRINITY TERM. Campbell exactly what he did for Lady Cooper and

[Before BLACKBURN, MELLOR, and SHEE, JJ.] Mrs. Kemmis, and leaving exactly 50001. for the younger daughter, having tied down Lady Cooper to REG. v. THE DARLINGTON LOCAL BOARD OF HEALTH. å hotchpot clause in case of any more being unap

-June 8. pointed? Notwithstanding Mr. Bicknell's unfortunate Public Health Act, 1848 (11 & 12 Vict. c. 63)- Local want of memory, as far as his own impression goes, it

Government Act, 1858 (21 & 22 Vict. c. 98)- Intercertainly gives no contradiction to that view; and the ference by local board with river, &c.—Compensationmore I have read these letters the more am I satisfied

Action. that there is evidence sufficient on the face of them to shew that this was throughout intended to be a por- By sect. 73 of the Local Government Act, 1858 (21 & 22 tion raised by the estate, and that nothing but Mr.

Vict. c. 98, repealing sect. 145 of the Public Health Campbell's intervention and desire to have the money

Act, 1848 (11 & 12 Vict. c. 63)), " nothing in the act in hand occasioned the advance. That being so, I

is to be construed to authorise any local board to injuhold that the primâ facie case, that the motive was to

riously affect any reservoir, river, or stream, dc., or the increase the portions of the younger children, is re

supply, quality, or fall of water contained in any river butted. It is proved to my satisfaction that the mo

or stream, dc., in cases where any company or inditive operating on the mind of the father here was

viduals would, if the act had not passed, have been ensimply to get the money as soon as he could for Mr.

titled by law to prevent, or be relieved against, the injuCampbell, who was anxious to have it, and without

riously affecting any reservoir, river, stream, &c., unless any intention of deviating from the portion charged

the board shall have first obtained the consent in writing on the settlement; and, therefore, so far I must hold

of such company or individuals 80 entitled as aforesaid." that the father did not purchase this for the benefit

T., the occupier of a mill situate on the river S., and the of his other children, but purchased such share as

representative of the riparian proprietor, being entitled might be coming to Mrs. Campbell out of the moneys

to the uses of the water for the purposes of the mill

, obfor his own benefit. It would not be 50001., be

tained a mandamus against the defendants on the folcause no appointment was made; and, what is more,

lowing grounds :—First, that they constructed a sever, the mother was alive, who had a joint power of ap

running partly alongside of, and partly under, the river, pointment, so that I could not construe this as

commencing at a point above, and terminating at a point operating by way of appointment, or anything in the

below, the mill, for the flushing of which a portion of shape of appointment. All that was done was, that

the waters of the river was admitted, and diverted for the father bought for his own benefit such share as

two days, during which the mill was thereby prevented would be taken in any unappointed residue. Then

from working. Secondly, for the loss of water occa. comes the other question, what is unappointed ac

sioned to the defendant by reason of the percolation of cording to what I have held ? 10,0001. had been

certain underground springs into the sewer, which would appointed to the first two married daughters, and

otherwise have found their way into the river; and also there remained 10,0001. unappointed. Then Lady

the percolation of water from the river into the sewer. Cooper, being bound to bring her share into hotch

Thirdly, for the construction of trap-doors into the pot, is put out of the case ; therefore, there re

sewer, which were occasionally opened for the purpose main three persons to participate in the unappointed

of flushing it. And, fourthly, for the diversion of the 10,0001., namely, Mrs. Kemmis, Mrs. Campbell, and

surface drainage waters of the town of D. into the Miss Tynte. Each of these takes one-third of the

said sewer, which before had been conveyed by artificial 10,0001., or 33331. 6s. 8d. That would be the share,

drains into the river :-Held (assuming the alleged inas regards Mrs. Campbell's portion, which would

juries to have been such as to form just ground of combe coming to Colonel Tynte. Then, his daughter,

plaint), that the remedy was not by mandamus, but by

action. Miss Tynte, having died a spinster, and he having administered to her, he became entitled to her one- Mandamus to the Darlington Local Board of Health third, that is, another 33331. 68. 8d. He accordingly commanding them to make compensation to the prowould have become entitled to 66661. 138. 4d., being secutor Thomas Taylor for the damage sustained by two-thirds of the unappointed 10,0001., which would him by reason of the exercise by them of the powers have had to be raised out of the estate. He, however, of the Public Health Act, 1848, in making certain executed the deed of the 14th June, 1851, by which he drains and sewers, and thereby diminishing the quanreleased the whole for the benefit of the estate. It tity of water to which he was entitled for the working was said that this document could not be looked at of a mill. as a release, inasmuch, as though a deed-poll, Mr. and Return, that the defendants did not, in the exerMrs. Campbell are made parties, in order to give sanc- cise of the powers of the said act, divert or stop the tion to the narrative of his having so purchased the course of the said stream from flowing thereunto, or share. They are not, however, made parties to exe- diminish the quantity of the water; that the said cute any release whatever; and, as I have held, that Thomas Taylor had not sustained any damage by reahe did become the purchaser, their concurrence in son of the exercise by them of the powers of the said this deed was not a matter of the slightest importance Public Health Act, 1848; and that if the said board to its efficacy. The father executed it, and it was had stopped, or diverted or diminished, any water sealed and delivered in the proper form, although it which ought to have flowed into the said stream, &c., may have been kept in a chest or in his private drawer, such stoppage was not in the exercise of the powers but it was duly sealed and delivered. It is not an in- of the said act, or in or by the making or continuing denture by way of contract. It is simply a deed of by them of any drains or sewers; and that although release ; and I do not see why it is not to have such stoppage, &c. was done in the intended exercise its operation; and accordingly I hold that, as to these by them of the powers of the said act, and bonâ fide portions, there is only 33331. 68. 8d. now to be raised, intended by them to be done under the provisions of the rest having fallen into the estate.

that act, the same was not, in fact, done by them in, Note for reference – Lord St. Leonards on Powers, 629, nor was the same in, the exercise of any of the powers 8th ed.

of the said act, but was inadvertently done in excess

Page 15

fendant's credit. That he had no authority to do. order signed by the directors and that which makes [Pollock, C. B.- If you allow any one to cause you to Payne exclusively liable. This is essentially for the appear as owner, the case is the same as if you had jury. I believe, upon that ground, that we are all of expressly authorised the act to be done.] The ques- opinion that the judgment should be affirmed. I contions material to be decided are these :-Did the de- cur in all the reasons given in the court below. This fendant authorise, as a fact, the act of the secretary? was the setting up of a private agreement inconsistent And if not, did he hold himself out to the plaintiff with what had been done for exhibitions to the pubas a party responsible? It is submitted, that both lic; and this, it appears to me, is a sort of agreement questions must be answered in the negative. The that cannot be set up, at least to prevent the matter mere fact of a person agreeing to become a member going to the jury.-Judgment affirmed. of the provisional committee of an intended railway M. Chambers applied for the allowance of interest company amounts to no more than a promise, that he for such time as the executors had been delayed by will act with other persons appointed, or to be ap- the proceedings in error, pursuant to the 26th rule of pointed, for the purpose of carrying the scheme into Trinity Term, 1853.-Application granted. effect; and in Reynell v. Lewis (15 M. & W. 517) it was held, that the law would not imply, from the mere fact of a person so agreeing to be a member, an authority from him to the other members, or to the

COURT OF COMMON PLEAS. solicitor, to make contracts on behalf of the com

MICHAELMAS TERM. mittee. (And see Lind. Part. 45-47). In Fox v. Clifton (6 Bing. 776), Tindal, C. J., at p. 793, states, that

[Before ERLE, C. J., Byles and KEATING, JJ.] part of the evidence on which the plaintiff in that

MITCALFE v. WESTAWAY.-Nov. 21. case contended that the defendants permitted them. Trespass to land— Reservation of portion thereof-Right selves to be represented to the plaintiff as partners

of licensee of grantor. was, " that the secretary to the company had prepared a book, containing a list of the names of all those To an action of trespass to land, described to be land on persons to whom shares had been allotted in the con

each side of a certain slip, for placing tools and utensils cern; in which list the names of the seven defendants there, the defendant pleaded that the land was demised had been included;" and "that this list had been seen

by a company to W. S. A., excepting and reserving the by the plaintiff when he called about the subject of

said slip, and the machinery and apparatus connected the contract; and that the secretary once opened the

therewith, and the site thereof, and to the said company, book, and that the plaintiff looked over some of the

their successors and assigns, officers, servants, and worknames." His Lordship then observes, that “there was

men, free access at all times to and from the said slip, no evidence that the list was made up, or shewn to

for the purpose of working and using, or repairing the any one with the permission or knowledge of the defend

same, or otherwise; and that the said company gave and ants. The holding one's self out to the world as a

granted to the defendant their license and permission

to work and use the said slip, and that he used the same partner, as contradistinguished from the actual relation of partnership, implies at least the voluntary act

under the said license; and that because the defendant of the party so holding himself out.” [Shee, J.-I

could not have free access to and from the said slip for presume the resolution was passed with the intention the purpose of working it without entering or going on it should be acted upon?] Yes; but it was to be

the said land, and without placing on the said land on taken with what had been arranged between the direc

each side of the said slip the said boats, utensils, &c., tors and secretary. By shewing the resolution, only

the defendant did, for the purpose of having free access one-half of the real transaction was exhibited. There to, and of working and using, the said slip under the was no authority to pledge the defendants' credit;

said license, &c., enter and go on the said land," &c. and, indeed, it was contrary to the whole scope of the

On demurrer, held a good plea. understanding between the persons. [He referred also Declaration, that the plaintiff sued the defendant, to Swan v. The North British Australasian Company (8 for that the defendant on divers days and times broke Jur., N. S., 940) and The Trustees of Evans's Charity and entered certain lands of the plaintiff's, which the (5 H.L.C. 389).]

plaintiff described as land on each side of a certain Montagu Chambers, Q. C. (Murphy with him), contra. slip, and as abutting on the south side thereof on - The question is, ought the plaintiff to be nonsuited ? Lowestoft harbour, and placed on the said land of the On principle and express decision, clearly not. It was plaintiff on each side of the said slip divers tools, utenimpossible to withdraw the case from the jury. [Pol- sils, and shipwright's gear, pitch pots, pieces of timber lock, C.B.-I think the secretary was authorised to shew and wood, and other goods and materials, and braziers the resolution for all lawful purposes; in other words, and staves, and kept the same there for long times, when asked as to the character of the company, to tell and therewith greatly incumbered the said land of the the truth.] The defendant says he was deceived in plaintiff's, and, with the feet of divers persons, walked Payne; but is the deceit to operate against the plain and trampled on the said land of the plaintiff on each tiff, who was misled by him? (He referred to Hern side of the slip, and, with the wheels of carts and feet v. Nicholls (1 Salk. 289), and was then stopped.] of horses, trespassed and trampled upon the said land Lush, in reply.

of the plaintiff on each side of the said slip, and seized POLLOCK, C. B.-It is the opinion of the whole divers pieces of timber and wood, and other goods of Court that the judgment of the Court of Common the plaintiff, and carried the same away, and threw Pleas must be sustained. There is one point, that the same about; and, by so doing, greatly incommoded is above all others, clear, that the resolution which ar- the plaintiff, and prevented him from carrying on his dered the advertisements, was signed by the defendant. business of a ship-builder and repairer of ships, in so That is a fact that could not be excluded from the beneficial a manner as he otherwise would have been consideration of the jury, and it could not be effected able to do. by any private agreement between the provisional di- And the plaintiff claims 2001. rectors and their secretary. But if it could be so Pleas, that before the plaintiff was possessed of or

meet it by other evidence relating to that agreement. then Eastern Counties Railway Company, now called It would be a conflict between the direct result of the the Great Eastern Railway Company, were and still

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expect, from the state of our affairs, that this share- Montagu Smith, Q. C., and Philbrick, for the respondholder will have to pay a call.” The claim would have ent, were not heard. to depend on the state of the company, on their pros- ERLE, C. J.—The 6 Vict. c. 118, by sect. 17, properity, on a variety of contingencies; and it cannot be vides, that persons named in the list may object to said that a company is to forfeit its claim unless they others as not entitled to be in the list; and that seccome forward and disclose the whole of their concerns. tion further requires a notice of objection to be given It would involve a wide disclosure for a vague contin to the person objected to in the form given in the gency. If the shareholder has no funds, he must sub- schedule of the act; and it has been decided that when mit to a new bankruptcy on each call. I think the there are more lists than one, that the notice should discharge no bar to the action.

go further, and define in which list the objector's name Byles, J.-I am of the same opinion. At first sight is to be found, so that the person objected to may know these calls appeared to fall within a contingency pro- at once who objects to the voter. Now, the notice vided for by the 178th section of the 11 & 12 Vict. signed was as follows:c. 106; but, on reference to the authorities, we find "E. W. Cole, 69, Durnford-street, on the list of vothat that section applies where there is one, but not, as ters for the borough of Devonport and township of in this case, several, contingencies. There was first a East Stonehouse.” contingency whether it would be necessary to make a I cannot see how the person objected to could be call; next, that the bankrupt would at the time of the misled by this notice. I do not see how the notice call be the holder of the shares. Besides, if the bank- could be more explicit. I certainly could not imrupt be discharged at all, he is discharged from all prove it. future liability, so that a bankrupt, who holds the Byles, J.-I am of the same opinion. The main shares for his assignees, is discharged from all calls. argument for the appellant is, that there was, in fact, If the bankrupt cannot pay the calls when made, he no list for Devonport. That would create less ambimust become bankrupt toties quoties. The balance of guity. authority coincides with the balance of convenience. KEATING, J., concurred. ---Judgment for respondent. KEATING, J., concurred.—Rule discharged.

GAYDON, App., BANCROFT, Resp.--Nov. 18. REGISTRATION CASES.

Freeman's franchise-Perpetuity-Reform Act (2 Will. 4, CRAM, App., COLE, Resp.-Nov. 18.

c. 45, s. 32). Notice of objection --Separate lists – Form of notice - The Reform Act (2 Will. 4, c. 45, s. 32) provides, that

6 Vict. c. 18, s. 17, Sched. (B.), Form 11. no person shall be entitled to vote as a burgess or freeThe borough of D. consisted of parishes S. and E. There man in respect of birth, unless his right be originally

were two separate lists, one of persons entitled to vote derived from or through some person who was a burgess in respect of property in S., and another of persons or freeman, or entitled to be admitted a burgess or freeentitled to vote in respect of property in E. The notice man, previously to the 31st March, 1831. In the boof objection was signed “E.W.C., 69, Durnford-street," rough of B. the sons of freemen are entitled, on proving in the list of voters for the borough of D. and township their father's marriage, and that they are born of such of E.:-Held, that the notice was sufficient.

marriage, and that they have attained the age of twenty; This was an appeal from a decision of the revising

one, to be admitted freemen. The claimant's grandbarrister for the borough of Devonport. The borough

father was admitted a freeman in 1810. The claim.

ant's father was admitted a freeman in May, 1831, and of Devonport consists of the parish of Stoke Damerel

the claimant in 1856:-Held, that the claimant was and the township of East Stonehouse. The list stuck up by the church wardens and over

entitled to the franchise of a freeman under the above seers of Stoke Damerel was headed, “ List of persons

section of the Reform Act, as claiming through his entitled to vote for the borough of Davenport, in re

grandfather, though his father was not admitted a freespect of property occupied within the parish of Stoke

man till May, 1831. Damerel." The list stuck up by the church wardens This was a consolidated appeal from the decision of and overseers of East Stonehouse was headed, “ List of the revising barrister of the borough of Barnstaple

. persons entitled to vote for the borough of Devonport, The facts proved were as follows:- In the borough of in respect of property within the township of East Barnstaple there is a body of freemen. The sons of Stonehouse."

these freemen are entitled, on proving their father's The respondent had signed the notice of objection, marriage, that they were born of that marriage, and as follows:-"E. W. Cole, 69, Durnford-street, on the that they have attained the age of twenty-one years, list of voters for the borough of Devonport and town to be admitted freemen of the borough, but they ship of East Stonehouse.” It was objected to this no- can claim from or through no other relation, and in tice, that it did not appear from it on what list the no other way than that described. William Saun: objector's name was to be found, and, moreover, that ders was duly admitted as a freeman (by right of there was

, in fact, no such list as that described in the his birthright from his father) of the said borough on notice of objection. There is no other Durnford-street the 31st July, 1856; his father was admitted, also by in the borough of Devonport than the Durnford-street right of birth, on the 2nd May, 1831, having only in which the said E. W. Cole lives, and that is within come of age on the 4th April of that year. the township of East Stonehouse.

grandfather was admitted by right of birth on the The barrister disallowed the objection, holding the 14th October, 1810. On this state of facts it was com notice sufficient.

tended, on the part of the objectors

, that as the said Karslake, Q. C., and Lopes, for the appellant.-The William Saunders derived his right to be admitted as respondent did not describe himself properly in this no- a freeman of the said borough through his father, tice. The description must enable the person objected from and through whom alone he could claim, and as to at once to refer to the list to see who objects

to his it was necessary by the 32nd section of the Reform vote . Where there are separate lists it has been held, Act, that the father, to give him the right claimed

, that the objector must state in which list his name namely, to be on the list of freemen voting for the boois to be found. [They cited Eidsford v. Farrer (4 C. rough, should have been admitted a freeman, or have B. 9; Crouton v. Bradley (15 C. B., N. S., 536).] been entitled to have been admitted a freeman, pre

Page 17

Cottam, now moved the Court to condemn the other stated to have made it, or by his admission on oath.
respondent, the de facto husband, in her costs, and The promise itself need not be in writing, but there must
argued that a wife, when a party to a suit in the be some acknowledgment in writing of the fact that such
Matrimonial Court, was, in any case, entitled to have a promise had been made.
her costs taxed against her husband.

A marriage per verba de præsenti may be proved either THE JUDGE ORDINARY directed that notice of the by a person present at the time, or by any other legal motion should be given to the de facto husband, and evidence that satisfactorily shews the fact

. adjourned the application to the next motion day. A party to a marriage celebrated in Ireland by a Roman

Nov. 15.-The Queen's Advocate, on the part of the Catholic priest, who was born and bred a Protestant, de facto husband, now opposed the application. There and of a Protestant family, unless he has done some is no precedent for condemning one of two co-defend- act to denote a change of his religious persuasion, must ants in the costs of the other.

be deemed to be a Protestant, within the meaning of stat. THE JUDGE ORDINARY.-The words of the 51st 19 Geo. 2, c. 13, s. 1, which provides, that every marsection of the Divorce Act are very wide.