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Law of Costs.-Legal Miscellanea.
tion in the court in which such action was brought, then and in any such cases the court in which such action is brought, or the said judge at chambers, shall thereupon, by rule or order, direct that the plaintiff shall recover his costs, and thereupon the plaintiff shall have the same judgment to recover his costs that he would have had if the before-mentioned act of the 13 & 14 Vict. c. 61, had not been passed."
We think, therefore, under the 13 & 14 Vict. c. 61, s. 11, the amount recovered is the criterion to guide the Master, and that, when he sees that the sum recovered is under £20, and there is no certificate, and no rule or order under the 4th section of the 15 & 16 Vict. c. 54, he is not to allow the plaintiff any costs. That construction, in our opinion, satisfies every provision of the act. In the present case, the plaintiff has brought an action in the superior court, for which a plaint might have been entered in the county court, and he has recovered less than £20. He, therefore, is entitled to no costs." Ashcroft v. Foulkes, 18 Com. B. 261.
ANCIENT DEED OF EARL DERWENTWATER.
JAMES the third Earl of Derwentwater having been engaged in the Rebellion of 1715, was convicted of treason, and, notwithstanding his youth and amiable character, was beheaded on Tower-hill. The estimation in which he was held rendered him the more dangerous. His brother Charles, who was
wholly ruinous and vnhabitable, without being at more charge with the rebuilding and repairinge of it than he believed the same would ever be worth to him, and not being able to pay the then rents and fines in arrear, did, about seaven yeares since, give upp the right, title, customary estate, interest, and possession which he, the said Thomas Harris, had in the said mansion house and garth, into the lord s hands, disclaiming any further interest, either to him or his heirs, in the same. Now know that the lords of the said manor, having ever since the time aforesaid successively had the said house and garth in their hands and possession, and the said Thomas Harris being desirous to purchase of the said Earle of Darwentwater the said house and garth, into tennancy or into customary estate of inheritance, as the same was anciently held by the said Grisdale, or former tenants thereof, by the same rents, customs, dues, and services, only save that when any fine shall happen to fall due to the lord or lords of the said manor, by death of lord or lords, or alienation of tenant, the tenant of the said house and garth shall only pay a fine certain of four years ancient rent for a fine, to be paid within six months next after the said fine shall fall due, by the death of the lord or by the death or alienation of tenant, as several other tenants within the said manor, some considerable time since, did purchase their tenements to the like fine certain. Now this Endenture witesseth that the said James Earle of Darwentwater,
for divers considerations him thereunto moving, and especially for and in consideration of the sum of eight pounds of lawful money of Great Britaine, paid in hand to his lordshipp's steward for his lorddemned at the same time, effected his escape, but shipp's use, the receipt whereof the said earle doth
was afterwards retaken, and his case furnished a singular instance of doubtful identity. Under his former sentence he was beheaded in 1745. earl's large and numerous estates in several counties were forfeited. An original deed, executed by the earl in 1711, and other memorials of him, may be seen at the valuable museum of Mr. Crossthwaite, at Keswick. The deed contains some curious recitals, and purports to be a conveyance of a house in Keswick, freed from fine arbitrary, to fine certain, in consideration of £8. The following is a copy:
This Endenture, made the tenth day of August, in the tenth year of the reigne of our Sovereigne Lady Ann, by the grace of God of Great Brittaine and Ireland Queen Defender of the Faith, and in the year of our Lord one thousand seven hundred and eleven, hetweene the Right Honourable the Earle of Darwentwater, Viscount Radcliffe and Langley Baron of Lindale, and lord of the manor of Castlerigg and Darwentwater of the first part, and Thomas Harris, of Portingskill, in the county of Cumberland, yeoman, on the other part: Witnesseth that, whereas one Edward Grisdale was anciently seized of one customary messuage and a close or garth on the back of his house, called Grisdale's House and Garth, situate and being in Keswick, within his lordsipp the Earle of Darwentwater's said manor of Castlerigg and Darwentwater, of the ancient yearly rent of eight shillings and threepence, and paying a fine arbitrary at the will of the lord; and whereas the said messuage and garth did, some years since decend upon one Thomas Ilarris as cousin and next heir to the said Edward Grisdale, and the said Thomas Harris refusing to pay either the rents or fines then in arrear, or to be admitted tenant to the same, by reason the said house was become
acknowledge, and thereof and every part thereof doth acquitt and discharge the said Thomas Harris, his heirs, and assigns; give, grant, bargain, and sell unto the said Thomas Harris the said messuage and garth, called Grisdale's House and Garth, with their appurtenances, to hold to him, the said Thomas Harris, his heirs, and assigns, as a customary estate of inheritance, as the same was formerly held by the said Grisdale. Heildinge and paying, therefore, yearly to the said James Earle of Darwentwater, lord of the said mannor, his heirs, and assignes, the said anncient yearly customary rent of eight shillings and threepence, at the feast days or tymes accustomed; and likewise paying suits of court at the Lords' Court, or courts when held, and suits of mill at the lord's mill or mills within the said mannor, and all other anncient duties and customs which have been annciently paid, and are now due, to be paid by the owner of the said house and garth, save only that, as aforesaid, the said Thomas Harris, his heirs, and assignes are only to pay a fourpenny fine-that is, four years' anncient reutat the death of the lord, or at the death of tenant, or alienation of tenant, at the several days and tymes as the rest of the fine certain tenants within the said mannor doe pay, or are obliged to pay, the same. En witness whereof, the parties to these presents have interchaingably sett to their hands and seals the day and year first above written.-(Signed) DARWENTWATER (L. s.).
Signed, sealed, and delivered in the presence of LEWIS ARTOIS, THO. ERRINGLON.
LEGAL OBITUARY, 1855-6.
ATTORNEYS AND SOLICITORS.
[Continued from page 342.]
(The names marked thus * were members of the Incorporated Law Society.)
Leach, Edward, of Pembroke, Tenby, and Haverford-
Loney, Joseph, of Macclesfield. Admitted on the
Lowless, William, of 2, Hatton-court, Threadneedlestreet (firm-Lowless and Nelson).
the Roll, Easter Term, 1826. Died, September, 1855.
*M'Ghie, Willoughby, of Bath. Clerk to the County Court. Admitted on the Roll, Mich. Term, 1819. Died, October, 1855.
*Millard, Philip, of North Walsham. Admitted on the Roll, Trin. Term, 1809. Died, July, 1855. *Minet, William Brissault, of 3, New Broad-street,
City (firm-Minet and Smith). Admitted on the
Morecroft, Thomas, of Liverpool (firm-T. J. and
Owen, James, of Liverpool. Admitted on the Roll,
Trin. Term, 1816. Died, September 3, 1855. Payne, James Edwin, of 15, Coleman-street, City,
and Wallingford. Admitted on the Roll, Hil. Term, 1843. Died, November, 1855. Peers, Joseph, the younger, of Ruthin. Admitted on
the Roll, Easter Term, 1851. Died, October, 1855. Phillips, Edward, of Burton-on-Trent. Admitted on the Roll, Hil. Term, 1804. Died, January 9, 1855.
Pigott, Henry, of Ely. Clerk to the County Court. Admitted on the Roll, Mich. Term, 1807. Died, March, 1855.
Pope, Charles Lee, of 35, Fenchurch-street, City (firm-Bolding and Pope). Admitted on the Roll, Easter Term, 1840. Died, January 1, 1855. Pridham, Joseph, of Plymouth (firm-G. and J.
Pridham). Admitted on the Roll, Trin. Term, 1830. Died, May 20, 1855.
Radcliffe, Henry, of Oldham (firm—Radcliffe and Murray). Admitted on the Roll, Easter Term, 1834. Died, June, 1855.
Raper, Robert, of Chichester (firm-Raper, Johnson, and Raper). Admitted on the Roll, Hil. Term, 1821. Died, December 3, 1855.
Read, George Thomas, of Bacup, near Rochdale. Admitted on the Roll, Hil. Term, 1843. Died, October, 1855.
Reed, John Frederick, of 19, Essex-street, Strand (firm-Jackson and Reed). Admitted on the Roll, Mich. Term, 1851. Died, May 5, 1855. Richardson, William, of 47, Bedford-row (firm— Richardson and Talbot). Admitted on the Roll, Easter Term, 1819.
*Roby, John Henry, of 73, Chancery-lane, and 2, Hanover Villas, Brook-green, Hammersmith. Admitted on the Roll, Trin. Term, 1849. Died, March, 1856.
Roumieu, John, of 9, New-square, Lincoln's Inn (firm-Roumieu, Walters, Roumieu, and Young). Admitted on the Roll, Hil. Term, 1813.
Royle, William, of Lymington. Admitted on the Roll, Trinity Term, 1828. Died, January 8, 1855.
Saunders, Joseph George, of Newbury and Greenham,
Shuttleworth, Samuel, of 14, Gray's Inn-square.
Simpson, James Brown, of Richmond, Yorkshire.
Smart, William, of 2, Fig Tree-court, Temple. Ad-
Stables, Henry Edward, of 1, Copthall-court, Throg-
Tillman, William Treby, of Devonport. Admitted on the Roll, Hil. Term, 1838. *Tindal, Thomas, of 10, New-square, Lincoln's Inn (firm-Law, Tindal, aad Hussey). Admitted on the Roll, Mich. Term, 1828. Died, April 29, 1856.
Professional Lists.—Recent Decisions: Lords Justices; Master of the Rolls.
Tresidder, William Edward Walmisley, of St. Ives,
Waugh, George, of 5, Great James-street, Bedfordrow (firm-Waugh and Mitchell). Admitted on the Roll, Easter Term, 1823. Died, January 16, 1856.
Admitted on the
Webb, James Michael, of Holt. Roll, Mich. Term, 1840. 1854.
Webster, Erasmus, of Belper, Derbyshire. Admitted
Weir, John Sims, of 27, Nicholas-lane, City (firm-
White, James, of Canterbury and Sandwich, Clerk to
Whittington, Thomas, of Bath (firm-Whittington
the Roll, Mich. Term, 1803. Died, July 9, 1855. Wilkin, James, of 217, Piccadilly. Admitted on the Roll, Trin. Term, 1835.
Williams, John, of Carmarthen. Admitted on the
Williams, Sir John Bickerton, Knt., of The Hall,
Admitted on the Roll, Hil. Term, 1816. Died, October 21, 1855.
Wright, William Rose, of Huntingdon. Admitted on the Roll, Hil. Term, 1832.
Wyatt, William, of 23, Red Lion-square, and 12, Cavendish-road, Wandsworth-road. Admitted on the Roll, Easter Term, 1853.
DISSOLUTIONS OF PROFESSIONAL PARTNERSHIPS.
From August 26th to September 19th, 1856, both inclusive, with dates when gazetted.
Henderson, Alfred, Frederick Willam Howard, and Frederick James Wilcocks, Bristol, attorneys, solicitors, and conveyancers, so far as regards the said James Wilcocks.Aug. 26.
Parnell, Hugh, and Thomas Butts Tanquery Willaume, 34, New Broad-street, City, attorneys and solicitors.-Sep. 2. Potts, C. T., and John Graham. Sunderland, attorneys and solicitors-Sept. 12.
Hadley, Nathaniel Layton, and Edward Jones Filder, 16, Gresham-street, city, and Ockley, Surrey, attorneys, solicitors, and conveyancers.-Sept. 16.
George, William Griffith, and William Wagner Mitchell, attorneys-at-law.-Sept. 16.
Abbott, George Washington, and Samuel Neale Driver, 13, Birchin-ldne, attorneys and solicitors.-Sept. 16.
Ward, Thomas, John William Ward, and Edward Collis, Newcastle-under-Lyne, attorneys and solicitors, so far as respects the said Edward Collis.-Sept. 19.
To Administer Oaths in Chancery. Appointed under the 16 &
Webster, Andrew. 3, Forth-street, Edinburgh, for Scotland.-Sept. 2.
RECENT DECISIONS IN THE SUPERIOR COURTS.
In re Viall exparte Sergeant. June 27, 1856.
PURCHASE UNDER DECREE-LUNATIC MORTGAGEE
COSTS OF ORDER UNDER TRUSTEES' ACT, 1850.
An estate sold under a decree in a creditor's suit was mortgaged, and the mortgagee was of unsound mind, although not so found by inquisition: Held, that the mortgagee was liable for the costs of a vesting order under the 13 and 14 Vict. c. 60, s. 3; the other costs to be costs in the cause.
THIS was a petition under the 13 & 14 Vict. c. 60, s. 3, by the purchaser under a decree in a creditor's suit for a vesting order of certain real estates directed to be sold and of which the mortgagee was of unsound mind, although not so found by inquisition.
Section 3 enacts that "when any lunatic or person of unsound mind shall be seised or possessed of any lands upon any trust or by way of mortgage, it shall be lawful for the Lord Chancellor, intrusted by virtue of the Queen's sign manual with the care of the persons and estates of lunatics, to make an order that such lands be vested in such person or persons in such manner and for such estate as he shall direct; and the order shall have the same effect as if the trustee or mortgagee had been sane, and had duly executed a conveyance or assignment of the lands in the same manner for the same estate."
Wigram and Hemming in support; Elderton and Southgate for other parties.
The Lords Justices in making the order said that the costs of obtaining it must be paid by the mortgagee, the other costs to be costs in the cause.
Master of the Rolls.
Gilley v. Burley. July 15, 1856.
ON POLICY OF LIFE INSURANCE.
Under a marriage settlement it was recited that the deceased had agreed to insure his life in £2,500, and that the same had been effected in the names of the trustees, and the said sum of £2,500 was settled upon the trusts therein declared, and he covenanted to pay the premiums. At the deceased's death there was a considerable amount of bonuses, which in the absence of any directions as to their being applied in reduction of the annual premiums had been added to the sum insured: Held, that the trustees of the settlement and not the husband's executors were entitled thereto.
Ir appeared that under his marriage settlement, dated in 1825, it was recited that the deceased had agreed to insure his life in £2,500 in the Rock Life
Recent Decisions: Vice-Chancellor Wood.-Analytical Digest of Cases.
Assurance Company, and that the same had been effected in the names of the trustees, and the said sum of £2,500 was settled upon the trusts therein declared, and he covenanted to pay the premiums thereon. The policy had, however, not been effected until a short while afterwards, when it was taken in his own name. By the rules of the office parties assuring were entitled to have the bonuses either in cash or in reduction of the annual premiums, or added to the amount of the policy. The deceased had never directed which way he would have the bonuses applied, and they were accordingly added to the sum insured by the policy, and upon his death his executors claimed the amount thereof as against the trustees of the settlement.
Selwyn and Surrage in support; G. Lake Russell, for the trustees, contrà.
The Master of the Rolls said that it was intended to settle the policy and not the specific sum of £2,500, and that the trustees were therefore entitled to the bonuses as well as the sum insured.
M'Nicol v. Kaye. August 1, 1856.
VENDOR AND PURCHASER-SPECIFIC PERFORMANCE -COSTS OF INVESTIGATING TITLE AT CHAMBERS.
Held, that a purchaser, against whom a decree is made for the specific performance of a contract on a sale by auction, is liable to the costs of investigating the title at chambers, but the number of attendances for that purpose to be allowed was limited to two on the taxation of costs. UNDER the decree in this suit against a purchaser for the specific performance of a contract on a sale by auction, a reference as to title had been made to the chief clerk, who found that a good title was made out on February 20th last. The case now came on upon further directions.
Piggott and Druce for the plaintiff; Chandless and Hoare for the defendant.
The Vice-Chancellor said, that as the purchaser had put the plaintiff to the necessity of filing his bill he must bear the expense of investigating the title at chambers, but that only two attendances before the chief clerk would be allowed in the case.
ANALYTICAL DIGEST OF CASES.
SELECTED AND CLASSIFIED.
Where a common foreclosure claim was supported by affidavits of the attesting witnesses to the mortgage deed, and the defendant, who was the heirat-law of the alleged mortgagor, did not cross-examine the witnesses, but set up, by affidavit, the insanity of the alleged mortgagor at the time of the alleged mortgage: Held, on appeal from the Master of the Rolls (reported 18 Beav. 300), that, without instituting a suit of his own to set aside the mortgage, he might have its validity tried by an issue or an ejectment. Jacobs v. Richards, 5 De G. M'N. and G. 55.
Question of evidence.-A question of foreign law, being one of fact, must be decided in each cause on evidence adduced in it, and not by a decision or on evidence adduced in another case, although similarly circumstanced. McCormick v. Garnett, 5 De G. M'N. and G. 278.
FRAUDS, STATUTE OF.
Agreement in writing Demurrer.-A defence founded on the Statute of Frauds may be taken by demurrer.
A demurrer, for that it appears on the bill that the agreement therein alleged to have been entered into, is not in writing signed by the defendant, is not a speaking demurrer.
A memorandum that A. had paid to B. £50 as a deposit in part payment of £1,000 for the purchase of a house, the terms to be expressed in an agreement to be signed as soon as prepared: Held, not a sufficient agreement in writing.
An allegation that the defendant had approved of a draft agreement, but had asked that, in order to save him the trouble of waiting till it was copied he might be allowed to call and sign the fair copy in the morning, which he promised, but failed to do: Held, by the Lords Justices, overruling the decision of Vice Chancellor Stuart (reported 2 Smale and G. 115), not a sufficient allegation of fraud to preclude him from setting up the Statute of Frauds as a defence. Wood v. Midgley, 5 De G. M'N. and G. 41.
Cases cited in the judgment: Foster v. Hodgson, 19 Ves. 180, 184; Maxwell v. Mountacute, Prec. in Ch. 526; Hammersley v. De Biel, 12 C. and F. 45; Walker v. Walker, 2 Atk. 98; Muckleston v. Brown, 6 Ves. 52.
Analytical Digest of Cases: Appeals in Chancery.
HUSBAND AND WIFE.
Scotch domicile-Equity to settlement.-Where a husband and wife are domiciled in Scotland, in which country a wife has no equity to a settlement: Held, on appeal from the Vice-Chancellor Stuart, that the court here will order payment of the wife's legacy to an assignee of the husband. McCormick v. Garnett, 5 De G. M'N. and G. 278.
And see Will, 7.
See Principal and surety.
Probability of success at hearing requisite.-On a motion for an injunction as to a matter merely pecuniary, the plaintiff cannot succeed without satisfying the court, not merely that there is a case to be tried, but that there is some probability of the bill not being dismissed at the hearing.
An information to restrain a municipal corporation from applying the borough fund or raising a rate for the purpose of opposing a bill in Parliament, the object of which was to interfere with the sewage and drainage of the town: Held, affirming the decision of Vice-Chancellor Wood (reported 1 Kay, 268), not a suit in which success was sufficiently probable to entitle the relator to an interlocutory injunction. Attorney-General v. Mayor, &c., of Wigan, 5 De G. M'N. and G. 52.
And see Appeal; Public Company; Vendor and purchaser, 1.
See Vendor and purchaser, 4.
Parties-Provisional assignee.-A life insurance company received notice of an assignment by an insurer of a policy, which the company had granted, and the insurer afterwards became insolvent. Soon after the death of the person whose life was insured, the assignee for value applied for payment of the sum due upon the policy, and the company inquired of the provisional assignee of the insolvent whether he would consent to payment being made to the assignee for value. The provisional assignee said he could not give such consent, but that it must be sought for from the Court of Insolvent Debtors. The insolvent himself gave notice to the company not to pay over the policy monies to his assignee for value, on the ground that the debt for which it was assigned as a security was satisfied. In the meantime an action was brought upon the policy by the assignee for value, in the name of the insolvent, against the company: Held, reversing the decision of Vice-Chancellor Wood, that it was not a case in which the company were entitled to file their bill of interpleader against the plaintiff in the action, the insolvent and his provisional assignee, the insolvent having no title, and the title of his provisional assignee being subordinate to that of the assignee for value. The case of Fenn v. Edmonds, 5 Hare, 314, overruled. Desborough v. Harris, 5 De G. M'N. and G. 439.
Specific, of leaseholds charged with annuity-Renewed lease-Graft.-A testator entitled to freehold estates and to a leasehold for years determinable on lives, charged by his will an annuity on both rateably, and directed that in the event of his interest in the leasehold expiring before the annuity, the proportion of the annuity charged on the leasehold should thenceforth issue out of a designated freehold estate. Subject to the annuity, he devised and bequeathed the freeholds and leasehold to different persons. The legatee of the leasehold surrendered the lease and took a new one determinable on different lives: Held, dismissing with costs on appeal from the Master of the Rolls, that the new lease was not for the purpose of the annuity substituted for the old, but that on the death of the last cestui que vie named in the surrendered lease, the leasehold ceased to be charged with the annuity, and that the part apportioned to the leasehold became charged on the designated freehold.-Kempe v. Kempe, 5 De G. M'N. & G. 346.
And see Limitations, Statute of.
See Will, 2.
LIMITATIONS, STATUTE OF.
When may be set up by residuary legatee-Acknowledgment—Evidence.-Where an indorsement on a promissory note of payment of interest, made by the authority of deceased holder, appears to have been made after the Statute of Limitations had run, it is not evidence to exclude the operation of the statute.
Where the Statute of Limitations had run against a debt, due from a testator before his death, aud the executor wrote thus to the creditor,