170 Superior Courts: Rolls.-V. C. Stuart. [LEGAL OBSERVER, 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 THE testator, by his will dated in July, of them so dying should be transferred to the 1852, gave the residue of his property in trust survivors, and if only one to him or her so to invest 1,2001. thereof and to pay the annual surviving. Catharine Mary Peche died in proceeds thereof to his daughter for life or 1836 intestate, leaving the defendant her only until her marriage, and after her decease or daughter. William Littlejohns died in 1842, marriage, whichever should first happen, 9007. having devised his property to his wife in fee, thereof to be paid to her children by her late who died intestate, leaving the plaintiff her husband William Bennett, and the remaining heir at law, and Christiana Littlejohns died in 3001. between her three children by her former 1852 also leaving the plaintiff her heir at law. husband Thomas Wylie. It appeared that the The last of the three daughters died in March, daughter was a widow at the date of the will, 1854. The question now arose whether the but that she had again married before the death survivorship referred to the death of the of the testator. The Vice-Chancellor Wood tenants for life or not. 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 decision 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 A testator by his will gave (subject to the life 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 testator by his will, dated in October, the plaintiff accordingly. 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 Vice-Chancellor Stuart. In re Jones' Settled Estates. June 22, 1855. 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 6,000, 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. 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 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 assist-defence on equitable grounds under the 17 & ance in the investigation of the title to an 18 Vict. c. 125, s. 83,' in this action of ejectestate, with a view to an investment of ment. 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. PUBLIC COMPANY.-APPOINTMENT UNDER Held, that where a matter is connected with 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. Unthank, for the plaintiff, in support; G. Tayler, for the defendant, contrà. The Court said, that immediately the de-fendant 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. e. 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 THIS was an action to recover remuneration 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 company, and that his engagement was within the scope of their business as such. The defendants rejoined setting out their charter, to which the plaintiff demurred. Willes and Thorpe for the plaintiff in support, 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 Courts are hereby empowered to receive such defence by way of plea; provided that such plea shall begin with the words for defence on equitable grounds,' or words to the like effect." 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 interrogatories to the defendant under the 17 & 18 Vict. c. 125, s. 51. The affidavit of the plaintiff 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. 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 deponents or deponent believe or believes that the party proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery which 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." The purchaser of shares in a mine carried on on the cost-book principle, sent his transfer to the secretary, but in consequence of there being no meeting of the directors it had not been approved of by them within the time limited by one of the rules: Held, that he was not liable as a shareholder to the company's broker, and a rule was made absolute to enter a nonsuit. [LEGAL OBSERVER. transferred, but subject to the approval or disapproval of the directors to be signified to the transferor and transferee, within seven days 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. The Court said, that although the defendant might have called on the secretary to complete his title, yet as regarded the plaintiff he was not liable, and the rule would be absolute to enter a nonsuit. Wilks v. Plant. June 23, 1855. APPEAL FROM RULE ABSOLUTE FOR NEW An appeal from a rule absolute for the new 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 1 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 SATURDAY, JULY 7, 1855. STATE OF LAW REFORM. tates amongst Next of Kin instead of Heirsat-Law. 5th. Stamping Bankers' Drafts. WE are now, it may be presumed, within The Bills which remain may be enumea few weeks of the end of the Session of rated according to the several stages at Parliament, and may not inappropriately which they have arrived. 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. Next follows Mr. Cairns' Bill for the alteration of the Bankrupt Law in Ireland. This also has progressed no further than a first reading; and like the Chancery Bills, can scarcely be expected to pass through all the other stages in the Commons in time for consideration in the House of Lords. 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 Regulation Aet by enabling the Lord Chancellor to empower Committees of Lunatics' Estates to grant Leases binding on Issue and Remainder-men; the 18 Vict. c. 26, authorising the Judges to alter the Forms of Pleadings;-the 18 Vict. c. 30, relating to the Law of Sewers;-the 18 Vict. c. 27, 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 classed: 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 Ireland and Scotland, and of Irish and >>Scotch Judgments in England. 4th. The distribution of the Real Estates of Intes VOL. L. No. 1,426. Limited Liability Partnerships must generally be prepared by professional men, and in the execution of them will often produce litigation, we cannot be indifferent to the L 174 State of Law Reform. [LEGAL OBSERVER, 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 1,2007. to 1,500l. 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. In the class of " Bills as amended to be considered," we have Mr. Keating's Bills of Exchange and Promissory Notes Bill for preventing frivolous defences. The Profession gives a decided preference to the remedy proposed by this measure over the Scotch 66 summary diligence" plan; and the House of Commons having so far pro powers of London Commissioners to the administration of oaths at their own offices or at the deponents' residence when sick. The inconvenience of attending at the Record Office during a limited time is to many persons very great, and now that affidavits are received as evidence conditionally, every facility should be afforded to collect such evidence. If this clause |