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Analytical Digest of Cases: Court of Review,

273

curity on merchandize at sea belonging to him, creditors' assignees, although the bankruptcy although at the time he is ignorant of the par- is not disputed. Exparte Potts, 1 De Gex, ticulars of which it consists. Exparte Kelsall 326. and others, 1 De Gex, 352.

See Annuity.

SET-OFF.

SHARES.

TAXATION.

The retainer by the solicitor under such circumstances, of the amount of his bill of costs as taxed by the commissioner, and the allowance of such retainer at the audit, held no such

See Proof of Debt, 3; Reputed Ownership, 1. payment of the bill as to preclude taxation.

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Rescinding contract. A vendor of cotton in America, by direction of the purchasers in England, ships the cotton on board a vessel belonging to the latter, who became bankrupt before its arrival. A mortgagee of the ship, who happens to be an agent of the vendor, takes possession of the ship under his mortgage, and sells the cotton under a supposed right on the part of his principal to stop it in transitu, and the principal sanctions the transaction as between himself and the agent by accepting a credit in account for the proceeds of the cotton. The assignees of the purchasers then bring an action against the mortgagee for this seizure, and he pays them, under a compromise, the amount for which the cotton sold.

Held, that under the circumstances, the contract was not rescinded by the seizure of the cotton, but that the vendor was entitled to prove for the purchase money. In re Humberston, 1 De Gex, 262.

SURRENDER.

Exparte Rees and another, 1 De Gex, 205.

TENANT IN TAIL.

Confirmation by commissioner of conveyance in fee.--Where a trader sold an estate and conveyed it as tenant in fee simple, with the usual covenant for further assurance, and became bankrupt, and it was afterwards considered that he was tenant in tail only, it was ordered that the commissioner should be at liberty to execute a deed of confirmation to the purchaser. Exparte Tripp and another, 1 De Gex, 293.

TRADING.

Cowkeeper.-A farmer who rented 104 acres of arable land, which he principally used for the cultivation of carraway seeds, and who kept four cows which were not used for the purposes of his farm, but sold the whole of the milk, was held not to be a cowkeeper within the meaning of the Bankrupt Laws. Exparte Dering re Cramp, 33 L. O. 356.

TRUST.

1. Question as to who are the cestuis que trustent. Upon a petition to appoint new trustees, the Court of Review will not decide any question as to who are the cestuis que

trustent.

In case of doubt, all who by possibility may be held to fill that character must be parties. Exparte Congreve, 1 De Gex, 267.

2. Monies employed in trade. Breach of trust.-Construction of will.-A testator directed that it should be lawful for his wife to retain in her hands and employ in his business any part of his assets not exceeding 6,000l., so long as she should think fit, if she should continue his widow, and appointed her and his son executor and executrix. The widow took the son into partnership with her in the trade, and they both became bankrupts. Held, that the

use of the 6,000l. in this trade was not an em

1. Petition. A bankrupt, who has not surrendered, may yet be heard, upon a petition for annulling the fiat, provided, that he was not in default, at the time when it was pre-ployment of it in the testator's business accordsented. Exparte Hodson, in re Hodson, 33 ing to the directions of the will, but was a breach of trust on which proof might be made against the joint estate. Exparte Butterfield, 1

L. O. 260.

2. Costs. Where the bankrupt left England

on account of his embarrassments, and consequently did not hear of the fiat till after the time for surrendering had expired, he was not allowed his costs on petitioning for leave to surrender. Exparte Perry, 1 De Gex, 377. And see Annulling Fiat, 3.

SUSPENDING ADVERTISEMENT.

The official assignee represents the creditors sufficiently to enable the court to suspend the advertisement by consent before the choice of

De Gex, 319,

3. Impeachment of Deed. A trust deed, which could not have been impeached under a fiat sued out by any creditor, held incapable of being impeached under the bankrupt's own fat. Exparte Philpott, 1 De Gex, 346.

WARRANT.

See Committment, 3.

274

Superior Courts: House of Lords.

RECENT DECISIONS IN THE SUPE-
RIOR COURTS.

REPORTED BY BARRISTERS OF THE SEVERAL
COURTS.

House of Lords.

Lord Camoys v. Blundell. June 29, 1847. CONSTRUCTION OF WILL. TENANT FOR

--

LIFE. TRUST.-REVERSION.

described by his christian and surname and some other distinctive circumstances, and no person answers both descriptions, and there is nothing in the rest of the will or the admitted evidence to show who was meant, the name would prevail, and the descriptive circumstance be rejected. But the maxim "Veritas nominis tollit errorem demonstrationis" is not inflexible, as has been explained by Lord Chief Justice Gibbs in the case of Doe v. Hathwaite, 2 Moore's Reports, p. 323. For if it be clear,

The following is the opinion of the judges in upon the due construction of the will with re

this case:

Mr. Baron Parke.-Your lordships have requested the opinion of the judges upon the following question:

"Whether, upon the construction of the will of Charles Robert Blundell, dated 28th November, 1834, regard being had to the proofs in the cause, Thomas Weld Blundell is entitled, as tenant for life in possession, to the real estates devised by such will to John Gladstone, Robert Gladstone, and Thomas Robinson upon trust, (except such as were specifically devised to any other person or persons, and all real estates held by him in trust,) and entitled in reversion for his life to the houses and gardens by the said will devised to William Hall and James Massam respectively for the lives of the

said will mentioned?"

We have considered this question proposed by your lordships, and being all agreed upon the answer to be returned to it, and the reasons for that answer, we think it unnecessary to hear any further argument.

It appears to us, upon hearing the will, and looking only at the evidence of the state of the Weld family at the time the testator made his will, and without adverting to the parol evidence received in the Court of Chancery, and, as we think rightly received, that the meaning of the words used by the testator to designate the devisee are clear; that the devise is not void for uncertainty, and that the respondent Thomas Weld Blundell is entitled to the estates mentioned in the question. put by your lordships. The question is, who is the person whom the description of devisee in the will, applied to the facts, properly fits?

ference to the evidence of the state of the family as known to the testator, that the meaning of the testator as expressed by the will was that the person described, and not the person named, was to take, the description will prevail over the name; for the rule in question has no other object than to assist in discovering the meaning of the will, and is not applicable where it leads to a construction contrary to the expressed meaning of the testator.

Here, then, the question would be, supposing even this were a devise for a person by name, whether the context and the evidence of the state of the family does not cause the descripWe think the context, coupled with that evition to prevail over the designation by name? dence, clearly denotes that the name of "Ed

ward" is a mistake.

It may be admitted that the christian name name by which a person is commonly known, is not merely the name of baptism, but the and that in this case the evidence shows that Edward Joseph, the eldest son of Joseph, was commonly known by the name of Edward, so as properly to be described and take by that name if the devise had been to him. Nor is it worth while to argue whether the description "of Lulworth" (though certainly more applicable, in ordinary parlance, to the possessor of the place) would not be applicable to him though he only resided in Lulworth, and was not the possessor of the castle.

been nothing more than a devise to Edward Admitting that it did, and that if there had Weld of Lulworth, Edward Joseph the eldest son would have taken, we are of opinion that the other parts of the will, coupled with the evidence of the state of the family, do clearly point out that the devisee is the second son of Joseph Weld, the possessor of Lulworth

Castle.

In this case it is to be remarked, that he is designated not by name, but by description only; neither his christian nor his surname is mentioned, but he is described by his relation only to other individuals. The case, therefore, In the first place the devise is clearly framed is not the same as if it had been a devise to so as to show that the testator meant an exEdward Weld himself, upon which supposition a good deal of the argument at your Lordships' bar has proceeded. It may be conceded that, where a devisee is

isting person. The limitation to that son for life, with a devise over to his first and other sons in tail, is properly applicable to an existing person, as, if it were to one not in esse, the limitation over would be void. If it be said that the testator might not know the rule of The following judges were also present:-law, the context shows that he did, for he proMr. Baron Alderson; Mr. Justice Patteson; vides in the next clause, which comprises fuMr. Justice Coltman; Mr. Justice Maule; ture sons of Edward Weld, that the estate shall Mr. Baron Rolfe; Mr. Justice Wightman; be in as strict settlement upon each son and Mr. Justice Cresswell; Mr. Justice Erle; Mr. his respective issue male as the rules of law or Baron Platt; and Mr. Justice Vaughan Wil-equity allow. liams.

Secondly, on failure of the first taker and the

Superior Courts: House of Lords.-Rolls.-Vice-Chancellor.

other branches of Edward Weld's family, the next remainder is limited to the other brothers of Edward Weld except his eldest brother, and the will, therefore, describes Edward Weld as having an elder brother.

Thirdly, Edward Weld is described as the brother of Lady Stourton.

Taking all these descriptions together, and looking to the will alone, we have this as the description of the unnamed devisee: he is to be an existing person; the second son of an Edward Weld, and who certainly had an eldest brother, and was himself the brother of Lady Stourton.

Now, by the evidence, we have at the time of the will made Thomas Weld an existing person, the second son of Joseph Weld, who had an eldest brother, and was the brother of Lady Stourton. And we have also a nonexisting child, and a possible father for him in an Edward Joseph Weld, not having an eldest brother, but himself the eldest, and having no sister Lady Stourton at all. And there is no other possible person whom the testator could have meant, unless it be one of these two. Add to this, that the description of the person as being " of Lulworth" is better adapted to one who is the possessor of that place, and not a mere resident there.

66

Under these circumstances, which was the devisee clearly meant by the description in the will? We entertain no doubt that Thomas Weld was that person.

It is to be observed that this construction is

alone consistent with the obvious intention of

the testator, that the remainder to the children of Lady Stourton should follow the remainders to the children of her brother, which would not be the case if the Edward Weld, whose second son was to take, be her nephew and not her brother.

We have to add, that the other extrinsic evidence, on which we have not relied, does not, taken altogether, lead us in the least to doubt the propriety of the conclusion to which we have come from the will and the extrinsic evidence to which we have referred as the ground of our opinion.

We, therefore, state our humble opinion to be, that the question proposed by your lord ships should be answered in the affirmative.

Rolls Court.

Lord Suffield v. Bond. May 7, 1847. 23RD ORDER OF 1842.-ANSWER.-NOTICE.

The 23rd Order of 1842, which requires notice of the filing of an answer, demurrer, plea, or replication, to be given the same day to the adverse party or his solicitor, must be strictly acted on. But where an answer was filed on a Saturday, and an order nisi served the same day, while notice was not given till the Monday following, but no inconvenience was shown to have arisen; the court refused to discharge the

275

order nisi, but made the defendant pay the costs of the motion to discharge it.

nisi, to dissolve an injunction upon the putting THIS was a motion to discharge an order in of the answer for irregularity. It appears that the answer was filed on the 24th of April, tained the same day as of course; but the nowhich was a Saturday, the order nisi was ob tice of the answer having been filed, which the 24th order of 1842 requires to be given "on the same day" to the solicitor of the adverse licitor, was not given until the Monday folparty, or to the party himself if he has no solowing.

Mr. Wilcock and Mr. Dickenson for the motion, contended, that the court could not carry the order into execution if it allowed an answer to be acted upon before notice had been given of its being on the file; that in the case of pleas, demurrers, or replications, to which the order equally applied, as well as in that of answers, great inconvenience might result from such a construction of the order. They referred to Bradstock v. Whateley, 6 Beav. 61.

Mr. Turner and Mr. Toller, contrà, said that the order was a substitution for the notice customarily given by the clerks in court, which in its origin was a mere act of eivility; that no substantial inconvenience had been sustained

by the plaintiff; and that by taking an office copy of the answer he had waived the irregularity; and asked how long were the consequences of such an irregularity to hang over the defendant's head.

the notice was for the day on which the answer Lord Langdale, after ascertaining that in form was filed, said, that he thought the order must be strictly enforced. It was true that it was a substitute for what was originally a courtesy of office only; but it had become a law of office ; he considered that when the order nisi was obtained, it was on an implied undertaking to serve the notice the same day. Then it was clear that here there had been a default: the question was only what was he to do. He was urged to discharge the order, whatever might be the result; but he did not think so. thought that it would be sufficient to let the order stand, making the defendant pay the costs. If any inconvenience could have been shown to have resulted to the plaintiff, it would have been his duty to have relieved him from it; but he could not find that any inconvenience had arisen. There was no suggestion that it had interfered with the right of excepting. Ordered, that the order nisi stand; the defendant paying the costs of the present motion.

He

Vice-Chancellor of England.
Druce v. Denison. June 16, 1847.
CONSISTORIAL COURT OF LONDON.-BONA
NOTABILIA.

A probate or administration granted by the
Consistorial Court of the Bishop of London,
is not sufficient to obtain the payment of
money out of court.

276

Superior Courts: Vice-Chancellor.

Gatland v. Tanner. July 6th, 1847.

ORDER OF 13TH APRIL, 1847.-38TH ORDER
OF AUGUST, 1841.-DISMISSAL OF BILL.-
APPEAL PENDING.

In this case a suit had been instituted for the The Vice-Chancellor said, that he should not admistration of the estate of the testator, Samuel make the order, if he did so, it would be alterDenison, and by a decree in the cause dated ing the usual practice of the court, but he reJuly 1801, it was declared that on the death of commended it to be mentioned to the Lord a tenant for life, the testator's next of kin would Chancellor. become entitled to a share of the testator's personal estate. The tenant for life had died, and M. A. Hoyle, who claimed under one of such next of kin, now presented a petition, praying that the Accountant-General might be directed to transfer to her the share to which she was entitled, as personal representative of such next of kin. The property consisted of certain sums invested in Bank 3 per cent. Annuities and Old South Sea Annuities, and the petition stated, that the various administrations and probates through which they made out her claim as such personal representation, had been granted by the Consistorial Court of the Bishop of London only, and the question was, whether they were sufficient for the purpose without going to the Prerogative Court of the Archbishop of Canterbury.

Where an appeal is pending from a case de-
ciding a point of practice material to the
conduct of a suit, on an application being
made to dismiss the plaintiff's bill for want
of prosecution, the court, on a proper case
being made out by the plaintiff, will direct
such application to stand over until judg-
ment on such appeal has been given.

In this case it appeared that plaintiff's bill was filed on the 12th October last; that on the 3rd of December, the defendant Tanner applied Mr. Shapter, for the petition. The adminis- for time to answer, and the Master gave him tration granted by the Consistorial Court is one month. On the 31st December, Tanner sufficient, and although a prerogative adminis- filed his answer: exceptions were immediately tration is usually obtained, yet it is more a pre- taken to it, and it was reported insufficient on cautionary measure than one absolutely neces- all the points excepted to. Exceptions were sary. The cases of Challnor v. Murhall, 6 Ves. taken to the Master's report, and on the 26th 118; Newman v. Hodgson, 7 Ves. 409; Thomas April last, they came on to be heard, when the v. Davies, 12 Ves. 417; and Docker v. Horner, Vice-Chancellor overruled the Master's report, 3 Brown, 240, although usually cited as prov- acting on his decision in Mason v. Wakeman, ing that a prerogative administration or probate Leg. Obs., Aug. 29th, 1846. No proceedings is necessary to obtain money out of court, do had since been taken in the cause, and Mr. not go that length; they were all applications Lewin now moved to dismiss the bill as against under provisional grants from courts other than defendant Tanner, for want of prosecution, the Consistorial Court of London, and not one with costs. of them appears to have been a London probate or administration. It must be admitted, that in The King v. Capper, 3 Price, 262, there is a dictum that stock for the purpose of probate and administration is supposed to lie within the archbishopric of Canterbury; but that was a mere dictum, and had nothing to do with the question then before the court.

The Vice-Chancellor. What species of chattel are you applying for? If it is a debt at all, it is one due from government, which does not reside anywhere.

Mr. Shapter. If the liability of government to answer for the debt were the test, the prerogative administration would be insufficient; the Archbishop of Canterbury having no jurisdiction in the province of York, in Ireland, or in Scotland. It is a debt due from government secured by act of parliament, and payable at the Bank, and therefore forms bona notabilia in London, for which a consistorial probate or administration is the proper one. The case of Smith v. Stafford, 2 Wills. Ch. Rep. 166, and Exparte Horne, 7 Barn. & Cress. 632, are parallel ones; and since the case of Scarth v. Bishop of London, 1 Hagg. 625; 1 Wms. exors. 228, note, the Bank of England always transfer stock on a probate taken in the Consistorial Court. He also cited Young v. Elworthy, 1 M. & K. 215; Pearce v. Pearce, 1 Keen, 76, and 1 Dan. Ch. Pr. 2nd edit. p. 305.

Mr. Miller, in opposition to the motion, urged that since the Vice-Chancellor's last decision in the cause, the case of Mason v. Wakeman had been brought on an appeal before the Lord- Chancellor, and his lordship had since heard the arguments, and had taken time to consider his judgment; that the proceedings in the cause had been delayed in order that the Lord Chancellor's decision might be known, and that, in case the Vice-Chancellor's decision should be affirmed, plaintiff intended immediately to amend her bill. He also contended that, by the Order of April 13th, 1847, 9 Beav. part 1, a discretionary power is given to the court either to dismiss plaintiff's bill, or to put him on terms, and that, under the circumstances of the case, it would be but reasonable that plaintiff's application should be postponed until the Lord Chancellor had given judgment in Mason v. Wakeman.

Mr. Lewin urged that it was unreasonable thus to wait; the Lord Chancellor might postpone his decision for an indefinite time; be

a In this case it was decided, that if the whole bill is demurrable, a defendant may, under the 38th Order of August, 1841, decline answering such portions of the bill as he objects to answer, although he may have answered the remainder.

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Superior Courts: V. C. Knight Bruce.-Queen's Bench.-Common Pleas

sides it was open for the plaintiff to appeal from any decision which the Vice-Chancellor might make in the cause.

The Vice-Chancellor ordered the motion to stand over until the Lord Chancellor had given his judgment in Mason v. Wakeman.

Vice-Chancellor Knight Bruce.
Cope v. Russell. March 23, 1847.

PRACTICE.

Substituted service of the subpœna to appear and answer on the solicitor of a defendant, that defendant being out of the way and his place of abode unknown, was refused on motion made for that purpose.

Swift moved that service of the subpoena to appear and answer, might be made on Mr. C., the solicitor of the defendant, who was out of the jurisdiction of the court, and whose address was not known. The plaintiff had recovered judgment against the defendant in an action at law, and the defendant then filed a bill to restrain the levying of execution, but such bill was dismissed. In the action and in the suit, Mr. C. acted as the defendant's solicitor, and in another action by another party against the defendant, Mr. C. also acted as his solicitor. The defendant having withdrawn himself, and it not being known where he was, an attempt was made to make a compromise of the demands of the plaintiff, and of the other party who had brought his action, in all which Mr. C. acted as the solicitor of the defendant. Under these circumstances, and on the authority of Hobhouse v. Courtney, 12 Sim. 140; Kinder v. Forbes, 2 Beay. 503; Hornby V. Holmes, 4 Hare, 306, and 9 Jurist, 225, 796,

the motion was made.

His Honour intimating, that the last cited case was a strong authority for the motion, still declined to make the order, as, if made, it had better be so by a higher branch of the

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Queen's Bench.

(Before the Four Judges.)

b

In re Ford. Easter Term, 1847. JUDGE'S ORDER. ATTORNEY.-COSTS. F. & R., attorneys in partnership, are employed by J. R. dies, and F. is afterwards employed by J. as his attorney, and in respect of work done after the death of R. certain deeds are given into the custody of F. by J. The bill of costs for work done by F. after the death of R. was paid by J., but the joint account was unpaid. Held, that F. had no lien on those deeds so us to enable him to retain them in respect of the bill of costs due from J. to F. & R.

b The motion was made before the Lord Chancellor, on the 25th of May, and refused.

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AN order had been made by Mr. Justice Erle, at chambers, requiring Ford, an attorney, to deliver up certain deeds and documents to one Jones, under the following circumstances: -Ford and Rogers had been in partnership as attorneys. Rogers died, but before his death they had been employed as the attorneys of Mr. Jones, and since the death of Rogers, Ford had acted as the sole attorney for Mr. Jones, Two bills of costs had been delivered in, one amounting to 521. 6s. 8d. for work done by Messrs. Ford and Rogers, and the other amounting to 2861. for work done by Ford alone. The latter bill has been paid by Mr. Jones, but the amount of the first bill was barred by the Statute of Limitations. The deeds and writings now required to be delivered up had been deposited with Ford in respect of business done since the dissolution of Mr. Justice Erle was of the partnership.

opinion that Ford had no lien on them.

Mr. Wordsworth applied for a rule to show cause why the judge's order should not be set aside, and contended that Ford had a lien upon these deeds, and was entitled to retain them till the bill of costs due from Jones to Ford and Rogers had been paid.

is

Lord Denman, C. J. It seems to me that it quite right, and that we ought not to interfere with this order.

Patteson, Mr. Justice. I think it is quite right. Copartners are in the nature of agents for one another. Ford received these articles, which he is called on to deliver up, not on the part of himself and another, but of himself only. Yet it is said that he has a lien on them,-a lien which has attached on them for a debt due to him and to another person for whom he is an agent. But it does not appear that he had held the things for any one else but himself. Wightman and Erle, J.s, concurred.

Common Pleas.

Rule refused.

Sharland v. Leifchild. Easter Term, 1847.

PLEA TO A DECLARATION ON CONTRACT.
DENIAL. WHAT
-ARGUMENTATIVE
AMOUNTS TO THE GENERAL ISSUE.

Where the declaration in an action of assump-
sit complained of a breach by the defendant
of a condition on which the sale of certain
houses had been made to the plaintiff,
"that the vendor would deliver an
namely,
abstract of title to the purchaser, or his or
her solicitor," and the plea of the defendant
stated hat at the time of the promise it was
agreed as part of the contract, that the de-
fendant should deliver an abstract of the
title, commencing with a certain specified
deed, and that extent only. Held, that the
plea was an argumentative denial of the
contract in the declaration, and bad as
amounting to the general issue.

ASSUMPSIT. The first count of the declaration alleged a sale of divers houses by auction, upon certain conditions, and amongst others,

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