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Held, reversing the decision of the Vice-assign the same to them. In the event of Chancellor Wood, that the gift over took either of his grandchildren dying in the lifeeffect. time of his said daughters, he desired the share of them so dying should be transferred to the survivors, and if only one to him or her so surviving. Catharine Mary Peche died in 1836 intestate, leaving the defendant her only daughter. William Littlejohns died in 1842, having devised his property to his wife in fee, who died intestate, leaving the plaintiff her heir at law, and Christiana Littlejohns died in 1852 also leaving the plaintiff her heir at law. The last of the three daughters died in March, 1854. The question now arose whether the survivorship referred to the death of the tenants for life or not.

THE testator, by his will dated in July, 1852, gave the residue of his property in trust to invest 1,2001. thereof and to pay the annual proceeds thereof to his daughter for life or until her marriage, and after her decease or marriage, whichever should first happen, 9007. thereof to be paid to her children by her late husband William Bennett, and the remaining 3001. between her three children by her former husband Thomas Wylie. It appeared that the daughter was a widow at the date of the will, but that she had again married before the death of the testator. The Vice-Chancellor Wood having held, that she was entitled notwithstanding such marriage, this appeal was pre

sented.

Freeman for the plaintiffs and executors; Rolt and Faber in support of the appeal; W. M. James and G. M. Giffard, contrà.

The Lords Justices said that the 24th section of the Wills' Act, which enacted that a will shall be construed with reference to the real and personal estate comprised in it to speak and take effect as if executed immediately before the testator's death, did not apply to the interests taken in such estate by the objects designated by the will, but applied only to the real and personal estate itself. The deci sion of the Vice-Chancellor must, therefore, be reversed.

Master of the Rolls.

Littlejohns v. Household. June 22, 1855.

Roupell and Evans for the plaintiff; R. Palmer and Hetherington for the defendants.

The Master of the Rolls held, that the survivorship referred to the death of the tenant for life, and that the gift over divesting the shares given to the grandchildren did not take effect, and the defendant was entitled to onethird.

Gibson v. Seagrim. June 25, 1855.

MARSHALLING ASSETS. FIRST AND SECOND
MORTGAGES.

The first mortgagee on two estates sold them
in a foreclosure suit, and after paying
himself handed over the balance to the
mortgagor's assignees. There was a second
mortgagee on one of the estates only:
Held, that he was entitled to marshal the
assets as against the first mortgagee.
THIS was a suit by the second mortgagee
an estate to compel a first mortgagee
thereon, together with another estate, to have
recourse in the first instance to such other
estate. It appeared that in a suit by the first
mortgagee to foreclose the mortgage, both the
estates had been sold, and that he had, after
paying himself, handed over the balance to the
mortgagor's assignees.

WILL. CONSTRUCTION.-SURVIVORSHIP AT on
DEATH OF TENANT FOR LIFE.

A testator by his will gave (subject to the life
interest of his three daughters therein) a
freehold house to his three grandchildren,
Catherine, Christiana, and William, their
heirs and assigns, equally, and he directed
that in the event of either of his grand-
children dying in the lifetime of his
daughters the share of them so dying
should be transferred to the survivors or
survivor. All the grandchildren pre-
deceased one of the daughters: Held, that
the gift over not taking place, the gift
among the grandchildren had not been

divested.

THE testator by his will, dated in October, 1822, directed his executors and trustees to permit his three daughters (naming them) to have the use, occupation, and enjoyment of his freehold house, No. 2, High Street, Kensington, free from interest for life respectively, if they chose to reside therein, but if either of them chose she might dispose of her interest therein to the others willing to reside therein; and subject to such life interest he gave the house to his three grandchildren, Catharine Mary Peche, Christiana Littlejohns, and Wm. Littlejohns, their heirs and assigns equally, and he authorised his trustees to convey and

Giffard, for the plaintiff, cited Baldwin v. Belcher, 3 Dru. & War. 173; Lanoy v. Duke of Athol, 2 Atk. 444; Aldrich v. Cooper, 8 Ves. 382; Averall v. Wade, Lloyd & G. 252.

C. Chapman Barber, for the defendant, referred to Barnes v. Racster, 1 Y. & C., Ch. 401; Hughes v. Williams, 3 M'N. & G. 683.

The Master of the Rolls held, that the assets should be marshalled, and made a decree for the plaintiff accordingly.

Vice-Chancellor Stuart.

In re Jones' Settled Estates. June 22, 1855.
INVESTMENT OF FUND IN LAND.-TITLE.—

CONVEYANCING COUNSEL.

Where the Court was satisfied as to the title, a reference was not made to the conveyancing counsel, under the 15 & 16 Vict. c. 80, s. 40, but the matter was adjourned to Chambers for inquiry.

THIS was a petition for the investment of

JUNE 30, 1855.]

Superior Courts: V. C. Stuart.-Queen's Bench, &c.

171

6,000l., part of the money paid for the Skerry | trading companies, this had been extended to Light House by the Trinity House, in the pur- all matters connected with the objects for chase of certain land. The title had been which they were constituted, and there would. perused and approved of by Mr. Samuel F. T. therefore be judgment for the plaintiff. Wilde, the conveyancer, and an order was now asked, without a reference to a conveyancing counsel.

Dart in support, cited Gibson v. Woollard, 24 Law J., N. S., Chan., 56; and the 15 & 16 Vict. c. 80, s. 40, which enacts, that "it shall be lawful for the Court or for any Judge thereof, when sitting at Chambers, to receive and act upon the opinion of conveyancing counsel in actual practice to be nominated as hereinafter-mentioned, in all cases in which, according to the present practice of the Court and of the Master's Office, it has been usual for the Master to require or receive the opinion of conveyancing counsel for his aid and assistance in the investigation of the title to an estate, with a view to an investment of money in the purchase or on mortgage thereof," &c. The Vice-Chancellor said, that when he was satisfied in his own mind as to the title, he acted without a reference to conveyancing counsel, and the matter would be adjourned to Chambers to inquire into the title.

Court of Queen's Bench. Henderson v. Australian Royal Mail Steam Packet Company. June 23, 1855.

UNDER

PUBLIC COMPANY.-APPOINTMENT
COMMON SEAL.-WHERE FOR PURPOSES
OF COMPANY.

Held, that where a matter is connected with
the objects of a company, the employment
of a person therein need not be under the
common seal.

Therefore, where a navigation company employed the plaintiff to bring from Sydney one of their ships which was unseaworthy, held that he could recover for his services, although his appointment was not under the common seal.

THIS was an action to recover remuneration

Court of Common Pleas.

Neve v. Avery. June 8, 1855. COMMON LAW PROCEDURE ACT, 1854.EQUITABLE PLEA IN ACTION OF EJECT

MENT.

Held, that an equitable plea under the 17 & 18 Vict. c. 125, s. 83, cannot be pleaded in an action of ejectment, and such a plea was struck out under s. 86, the Court refusing to give judgment on a demurrer thereto. THIS was a demurrer to a plea setting up a defence on equitable grounds under the 17 & 18 Vict. c. 125, s. 83,' in this action of eject

ment.

Unthank, for the plaintiff, in support; G.. Tayler, for the defendant, contrà.

The Court said, that immediately the defendant appeared the plaintiff was entitled to make up the issue, and there was no declaration in ejectment, without which there could not be aplea. The best course would be to strike out the plea under s. 86, but there could. be no judgment on the demurrer.

Court af Exchequer.

May v. Hawkins. June 12, 1855. COMMON LAW PROCEDURE ACT, 1854.INTERROGATORIES IN ACTION OF EJECT-MENT.-AFFIDAVIT.

Held, that the affidavit in support of an application to deliver interrogatories to the defendant under the 17 & 18 Vict. c. 125, s. 51, must state that the plaintiff has a good cause of action "". upon the merits," and a rule was discharged where those words were omitted.

THIS was a rule nisi for leave to the plain

Which enacts, that "It shall be lawful for for the plaintiff's services in bringing home the defendant or plaintiff in replevin in any from Sydney one of the defendants' vessels cause in any of the Superior Courts in which, which was lying there and supposed to be un-if judgment were obtained, he would be entitled seaworthy. The defendants pleaded that they to relief against such judgment on equitable were a corporation and could not contract ex-grounds, to plead the facts which entitled him cept under their common seal, to which the to such relief by way of defence, and the said plaintiff replied that they were a trading com- Courts are hereby empowered to receive such pany, and that his engagement was within the defence by way of plea; provided that such scope of their business as such. The defend- plea shall begin with the words for defence ants rejoined setting out their charter, to which on equitable grounds,' or words to the like the plaintiff demurred. effect.'

Willes and Thorpe for the plaintiff in sup-
port, citing Clarke v. Guardians of Cuckfield
Union, 21 Law J., N. S., Q. B., 349; Copper
Miners' Company v. Fox, 16 Q. B. 229.
Lush and Mayne, contrà.

The Court said, that formerly the relaxation in favour of contracts by municipal corporations not under seal was infrequent and in insignificant cases, but that latterly and in regard to

2 Which provides, that "In case it shall appear to the Court, or any Judge thereof, that any such equitable plea or equitable replication cannot be dealt with by a Court of Law so as to do justice between the parties, it shall be lawful for such Court or Judge to order the same to be struck out on such terms as to costs and otherwise as to such Court or Judge may seem reasonable."

tiff in this action of ejectment to deliver inter- transferred, but subject to the approval or disrogatories to the defendant under the 17 & 18 approval of the directors to be signified to the Vict. c. 125, s. 51. The affidavit of the plain-transferor and transferee, within seven days tiff in support stated that he believed that there was a good cause of action for the breach of the covenant to insure which was contained in the lease from himself to the defendant.

after notice. This rule had not been complied with, in consequence of there having been no meeting of the directors. The plaintiff obtained a verdict, subject to a rule to enter a nonsuit, which had accordingly been obtained.

Byles, S. L., Edwin James, and Beasley showed cause; Bramwell and Honyman in support.

Watson and Aspland showed cause, referring to s. 52, which enacts, that "the application for such order shall be made upon an affidavit of the party proposing to interrogate, and his attorney or agent, or in the case of a body corporate, of their attorney or agent, stating that The Court said, that although the defendthe deponents or deponent believe or believes ant might have called on the secretary to comthat the party proposing to interrogate, whe-plete his title, yet as regarded the plaintiff he ther plaintiff or defendant, will derive material was not liable, and the rule would be absolute benefit in the cause from the discovery which to enter a nonsuit. he seeks, that there is a good cause of action or defence upon the merits, and if the application be made on the part of the defendant that the discovery is not sought for the purpose of delay."

Lush in support.

The Court said, that the act required the plaintiff to state he had a good cause of action "upon the merits," and the rule would accordingly be discharged.

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Wilks v. Plant. June 23, 1855.

COMMON

LAW PROCEDURE ACT, 1854.

DA

APPEAL FROM RULE ABSOLUTE FOR NEW
TRIAL ON GROUND OF EXCESSIVE
MAGES.

An appeal from a rule absolute for the new
trial of an action, on the ground of the
damages being excessive, will not lie under
the 17 & 18 Vict. c. 125, s. 35, and al-
though the rule nisi was moved also on the
ground of misdirection, inasmuch as the
question of misdirection would be on the
second trial.

THIS was an action for maliciously preferring an indictment against the plaintiff for conspiracy and obtaining money on false pretences, and on the trial before Platt, B., at the last Guildford assizes the plaintiff obtained a verdict with 1,500l. damages. A rule nisi was obtained for a new trial, on the ground of excessive damages and misdirection, against which

Hawkins, Wordsworth, and Robinson showed cause: Shee, S. L., and M. Chambers in support.

THIS was an action against a shareholder of the Court Grange Silver Lead Mine, to reThe Court having made the rule absolute on cover the amount claimed by the plaintiff as the ground the damages were excessive, retheir broker at Aberystwith. On the trial fused an application under the 17 & 18 Vict. c. before Martin, B., it appeared that the defend- 125, s. 35, for leave to appeal, as the question ant had purchased 10 shares in the mine, of misdirection would be on the second trial, which was conducted on the cost-book prin- and held that the section only applied to matciple, and had sent in the transfer to the secreters of law. tary, and that in a subsequent letter to him he had stated himself to be the holder of 10 shares in the company, and made certain inquiries as to its prospects. By one of the rules it was provided, that the shares might be

Which enacts, that "in all causes in any of the Superior Courts, by order of the Court or a Judge, the plaintiff may with the declaration, and the defendant may with the plea, or either of them by leave of the Court or a Judge, may at any other time deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought."

Which enacts, that "In all cases of motions for a new trial, upon the ground that the Judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal, provided any one of the Judges dissent from the rule being refused, or when granted being discharged or made absolute, as the case may be, or provided the Court in its discretion think fit that an appeal should be allowed; provided that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence, or otherwise no such appeal shall be allowed."

The Legal Observer,

AND

SOLICITORS' JOURNAL

-"Still attorneyed at your service."-Shakespeare

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SATURDAY, JULY 7, 1855.

STATE OF LAW REFORM.

tates amongst Next of Kin instead of Heirsat-Law. 5th. Stamping Bankers' Drafts.

The Bills which remain may be enumerated according to the several stages at which they have arrived.

We are now, it may be presumed, within a few weeks of the end of the Session of Parliament, and may not inappropriately take a brief review of the measures affecting Those which stand for second reading in the interminable subject of the so-called the HOUSE OF COMMONS relate to the Law "Amendment of the Law," which have of Ireland, namely, Mr. Whiteside's six hitherto been under consideration, and Chancery Bills, the short titles of which are: those which yet remain for parliamentary Jurisdiction ;-Procedure ;-Receivers ; decision. -Sales of Estates ;-Appeals ;-Stamps. Most of the Acts which have actually Some of these measures might well be conpassed have been already submitted in ex-solidated. Subdivisions are useful to secure tenso to our readers. They are the 18 Vict. distinctness, but the same Bill might have c. 15, for the Protection of Purchasers in treated,-1st, of the Jurisdiction of the regard to Judgments of the Courts of Lan- Court; and 2nd, of its Procedure:-taking caster and Durham; the Re-registration of in Receivers and Sales of Estates in the Judgments of the Superior Courts, Orders former, and Appeals and Stamps in the in Bankruptcy, Annuities and Rent Charges; latter. -the 18 Vict. c. 13, amending the Lunacy Next follows Mr. Cairns' Bill for the Regulation Aet by enabling the Lord Chan- alteration of the Bankrupt Law in Ireland. cellor to empower Committees of Lunatics' This also has progressed no further than a Estates to grant Leases binding on Issue first reading; and like the Chancery Bills, and Remainder-men; the 18 Vict. c. 26, can scarcely be expected to pass through authorising the Judges to alter the Forms all the other stages in the Commons in of Pleadings; the 18 Vict. c. 30, relating time for consideration in the House of to the Law of Sewers ;-the 18 Vict. c. 27, Lords. repealing the Newspaper Stamp Duty ;-the The Bills which have been read a second 18 Vict. c. 32, extending the Jurisdiction time and are now "in Committee," may of the Stannary Courts ;-Ecclesiastical be thus :- The Limited Lia-Courts Jurisdiction for Defamation, c. 41; bility and Partnership Bills. These the the Administration of Oaths abroad, c. 42; Government intend to carry forward to maand Infants Marriage Settlements, c. 43. turity. Perhaps the lawyers have no perThe measures which have been proposed sonal concern with these alterations of the and abandoned or negatived for the present general law, which do not affect the practice are, 1st. The Testamentary Jurisdiction of the Courts, nor the immediate interests Bill. 2nd. Vacating Seats in Parliament. of the Practitioners; but as Contracts of 3rd. Execution of English Judgments in Limited Liability Partnerships must geneIreland and Scotland, and of Irish and Scotch Judgments in England. 4th. The distribution of the Real Estates of Intes VOL. L. No. 1,426.

classed:

rally be prepared by professional men, and in the execution of them will often produce litigation, we cannot be indifferent to the

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proposed alterations of the law. Notwith-nounced in its favour, it may soon be carstanding some objections raised against the ried to the Upper House. There it will principle of the measure, and in spite of probably receive some check from Lord some difficulties in its practical details, we Brougham, who has a predilection in favour entertain a favourable opinion of the bene- of the Scotch system, but after the report fits which will result from the proposed of the Select Committee of the House of change, and conceive that by proper safe- Commons, the opposition of the noble lord guards the creditors of these partnerships ought not to prevail. If, however, his may not only be amply protected, but that lordship's influence should predominate, frequently, if not generally, they will be in the evil complained of will remain unrea better position in regard to the distribu- dressed, for the other Bill cannot, in contion of the assets of the firm, in cases of sistency, be now revived and pass this failure, than they are at present. Instead Session. of relations or friends who have lent money

Amongst the Bills for " third reading" to the trader being entitled, by the secu- is one relating to the Qualification of Jusrities they hold, to rank before other cre- tices of the Peace, which is expected to ditors, they will themselves be liable to the pass. And the Amendment of the Law extent of the capital subscribed, and can of Bills of Lading, seems likely to be obtain a dividend only where there is a sur- effected. plus after paying all the creditors. Conceiving that the interests of the Public and the Profession are closely united, we wish success to the proposed measure.

In this stage of progress there are some other Bills which may be briefly noticed. The Law of Bankruptcy and Insolvency in Scotland, and the Tenants' Compensation in Ireland, are important measures for those parts of the empire. There are also several Bills especially affecting the interests of the public,-viz., Metropolitan Buildings; Metropolitan Local Management; the Removal of Nuisances; the Public Health; and the Regulation of Passengers by Sea.

A Bill for the alteration of the Law of Mortmain is also in Committee, and another for the further amendment of the Law of Merchant Shipping.

The Church Rates Abolition Bill, if it passes the Lower, will probably be stopped in the Upper House; and the same result may be anticipated with regard to the alteration of the Law of Marriage with Sisters in-Law and Nieces. The Grand Juries Bill, if it should come out of Committee, will scarcely proceed much further.

The Cinque Ports' Bill which passed the Commons for abolishing the peculiar jurisdiction of those ports and transferring it to the ordinary jurisdiction in the county of Kent, has been altered in the House of Lords, and their amendments remain for consideration.

We turn now to the Bills which originated in the HOUSE OF LORDS and having there passed, are now in progress in the House of Commons.

Those which are appointed for second reading are the Leases and Sales of Settled Estates Bill and the Charitable Trusts Bill. There appears to be no serious objection raised to these measures, and we incline to think they will be beneficial.

The Lords' Bills in Committee of the Commons are the Criminal Justice Bill and the Despatch of Business in the Court of Chancery Bill. We understand the clause for increasing the salaries of the clerks of Records and Writs, from 1,200l. to 1,5007. on the transfer of the business of the Report Office has been struck out :-it appearing probably that three clerks of Records and Writs, with a considerable staff of The Youthful Offenders Bill, it is desir- clerks, will be competent to discharge the able should pass, and there is yet time to per- duties of the office without extra attendance fect it. This disposes of the Bills in Com- or laborious exertion. We are also inmittee, which have originated in the Com-formed that the Solicitor-General is conmons, and have yet to pass all their stages vinced of the inexpediency of limiting the in the House of Lords.

powers of London Commissioners to the In the class of "Bills as amended to be administration of oaths at their own offices considered," we have Mr. Keating's Bills or at the deponents' residence when sick. of Exchange and Promissory Notes Bill for The inconvenience of attending at the Repreventing frivolous defences. The Pro- cord Office during a limited time is to fession gives a decided preference to the many persons very great, and now that remedy proposed by this measure over the affidavits are received as evidence condiScotch summary diligence" plan; and tionally, every facility should be afforded the House of Commons having so far pro- to collect such evidence. If this clause

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