222
Ex. 221 Emmet.

During the sittings of the Courts, THE WEEKLY NOTES will be published L. JJ. on Saturday, and will generally comprise Notes of the Decisions up to and including those of the previous Wednesday. All cases of permanent Winding-up-Contributory-Release of Class A. Contributory— interest noted herein will be reported in full in THE LAW REPORTS.

The owner of land mortgaged the fee, and afterwards, by a deed of settlement, purported to grant to his wife an annuity L. JJ. issuing out of the land, and also to grant a term to a trustee to secure the annuity. The owner of the land died, devising it to his three sons, who paid off the mortgage and took a reconveyance. They afterwards conveyed to a purchaser for value without notice of the annuity.

The widow filed the bill in this suit against the trustee of the term and the purchaser, praying for administration of the trusts of the term and for payment of the annuity.

The Vice-Chancellor James dismissed the bill (ante, p. 6). The plaintiff appealed.

part of the creditors of De Vecchj, nor had any trustee been appointed.

De Gex, Q.C., and Reed, for the appellant, contended that the petition for liquidation being a separate proceeding on the part of De Vecchj, the receiver had no power to restrain an action by a creditor of the firm to which he belonged to attach the joint assets. They referred to the 13th and 125th sections of the Bankruptcy Act, 1869, and the 260th Rule of 1870.

Swanston, Q.C., and Bagley, for the receiver.

married and died in her lifetime, submitted that they, under the
words" children or legal issue." were entitled to shares.
Cates, for a defendant in the same interest as the plaintiff.
THE VICE-CHANCELLOR:-The words of the codicil which have
created the difficulty, must be construed according to the con-
text, and in my opinion, there is nothing to shew that the word
"children" must be construed as a word of limitation. There
must be a declaration that the children of Ann West who sur-
vived the testator, or who were born in her lifetime, took estates
fee.

THE LORD JUSTICES were of opinion that the Court of Bank-in ruptcy had no power to restrain an action against the joint assets, the other partner not being before the Court. The order was discharged.

Solicitors: A. Rhodes; Abrahams & Roffey.

Solicitors: H. S. Williams, agent for O. T. Alger; Abbott, Jenkins, & Abbott, agents for F. T. White, Boston; Sharp, & Ullithorne, agents for J. Walesby, Horncastle; H. S. Williams, agent for Walker, Sons, & Rainey, Spilsby; Coverdale, Lee, & Co., agents for Simpson & Millington, Boston.

HOLLAND v. WOOD. Will-Construction-Devise by Will to A. W. in fee, and by Codicil "to all the Children or Legal Issue" of A. W. in equal Shares after the decease of A. W.

Gift to a Child during Life—Advancement. Luke Hepworth, by his will, dated in December, 1845, gave George Ward, who died in January, 1811, by will, dated the to each of his three granddaughters, the children of his only son 8th of August, 1809, after previous devises, said: "I give and Boughey Hepworth, the interest of 1000l. 37. per Cent. Reduced devise the same [estates devised by the testator to his wife for Bank Annuities, for life, and afterwards the capital to be equally life] unto and to the use of my daughter Ann, the wife of William divided between the issue of such grandchildren; and the testator West, her heirs and assigns for ever," and as to other heredita- appointed his son sole executor and residuary trustee of his will. ments the testator devised the same unto and to the use of his On the 6th of April, 1847, Luke Hepworth transferred the sum daughter Elizabeth Ward, her heirs and assigns for ever; and of 32007. Reduced Bank Annuities into the name of his son Boughey then by a codicil, made eleven days afterwards, the testator said: Hepworth. No deed or declaration of trust was executed upon "I order that all the messuages, lands, tenements, and heredita- such transfer, and there was no evidence shewing under what ments, as given by me in my last will and testament to my circumstances the transfer was made, the only document redaughter Ann, the wife of William West, to her and her heirs or lating thereto which could be found, being the "broker's note' assigns for ever, be not so given, but to all the children or legal | given upon the transfer. issue of my said daughter Ann, the wife of William West aforesaid, to be divided between and amongst them in equal and proportional shares after the decease of the said William and Ann West, and also I order that all the messuages, lands, tenements, and hereditaments, as given by me in my last will and testament to my daughter Elizabeth Ward, her heirs and assigns for ever, be not so given, but to her legal issue, to be divided between and amongst them in equal and proportional shares, &c., &c., but provided the said Elizabeth Ward happens to die without leaving any legal issue, in that case my will is, and I hereby direct, that the above-mentioned messuages, lands, tenements, and hereditaments, be divided in equal and proportional shares amongst the children and legal issue of my said daughter Ann, the wife

of William West aforesaid."

Ann West died on the 7th of March, 1867. She had by her husband, William West, ten children, one of whom died in the lifetime of the testator, an infant and unmarried, and three children, who survived the testator, died in the lifetime of their mother. Two of these children died infants and unmarried, and the third left three children, two of whom died without issue, leaving the survivor their heiress-at-law. The remaining six children of Ann West married and had children, and some of them grandchildren, and all were made defendants.

C. Hall, and Speed, for the plaintiff:-The gift was to the children of Ann West, and the grandchildren were excluded. Dickinson, Q.C., and Shebbeare, for defendants in the same interest.

Laing, for the eldest son and heir-at-law of Ann West:-Ann West took an estate in tail, which now belongs to her heir-in-tail. If, however, the children of Ann West have any interest, it is for life only, and the fee belongs to the heir of the testator.

A. Thomson, for grand and great grandchildren whose parents were living:-All the descendants of the testator who came into existence between his death and the death of Ann West, about thirty-seven in all, are entitled to shares.

Greene, Q.C., and Villiers, for defendants in the same interest.
Nalder, for the grandchildren of the child of Ann West who

Luke Hepworth died in May, 1849, at the age of 94 years, having resided with his son Boughey Hepworth for the last ten years of his life, and at the time of his death he was not possessed of any sum of Reduced Annuities, in consequence of which the legacies given by his will failed.

Boughey Hepworth, soon after the date of the above transfer, and in the lifetime of his father, sold out the 32007. Reduced Annuities and applied the money to his own use.

In May, 1866, Boughey Hepworth made his will, and thereby gave a small portion of his property to his three daughters absolutely; but the greater portion he gave to his wife Ann Hepworth, for life, with remainder to his daughters and their children. He died in March, 1869, and this bill was filed by Ann Hepworth for the purpose of obtaining a declaration that the transfer by Luke Hepworth to his son Boughey Hepworth, in 1847, operated as an absolute gift to him of the 32007., and that it was not intended that such sum should be held by the son upon any trust whatever.

Glasse, Q.C., and Owen, in support of the bill.

Joshua Williams, Q.C., and A Anderson, for the defendants, the three daughters of Boughey Hepworth, or their representatives, submitted that the transfer of the 32001. in April, 1847, was made to Boughey Hepworth, as a trustee for his father, for life, and upon his death, as to the sum of 3000l., part thereof, for the legatees named in the will of his father, and that the estate of Boughey Hepworth was liable to make good such sums, together with interest thereon, from the time of the death of Luke Hepworth.

Knox, for the trustees of Boughey Hepworth's will.

THE VICE-CHANCELLOR said the law was not doubtful that if this had been a transfer to a stranger it would have operated as a trust; but where a gift was made in favour of a child the presumption of law was, that it was intended as an advancement. In this case the transfer afforded sufficient presumption of the father's intention to give the money to the son; and in His Honour's opinion the son was absolutely entitled to it. Solicitor for all parties: W. D. Davies.

V.-C. M.
Ex parte RECTOR OF LIVERPOOL.
Nov. 4.
Rights of Rector-Freehold of Churchyard-Receipt of Rents and
Profits-Lands Clauses Act.

This was a petition by the rector of Liverpool for payment to
him of the dividends on a fund amounting to 51507. which was
paid into Court in pursuance of the decree in Campbell v.
Mayor and Corporation of Liverpool (Law Rep. 9 Eq. 579;
see ante, p. 48), as the purchase-money of a portion of the
burial-ground of the parish church of St. Peter, Liverpool,
taken under the provisions of the Lands Clauses Act, incor-
porated with the Liverpool Improvement Act, 1864. The case
of Campbell v. Mayor and Corporation of Liverpool determined
that the burial-ground did not revert to the Corporation
on its being closed by an order in Council, and directed the pur-
chase-money to be paid into Court, leaving the question of the
right to it to be determined by petition in the usual way.
Cotton, Q.C., and Charles Stewart, for the rector of Liverpool,
now contended that the freehold of the burial ground was vested
in him, and that he was entitled to receive the burial fees, or any
rents and profits arising from the ground.

Millar, for the vestry and churchwardens of Liverpool, who were the parties to provide new burial-grounds, contended that the rector was not the person entitled to the" rents and profits" of the ground, his right to use the surface being subject to the right of the parishioners to be buried there, and that at Common Law he was not entitled to receive fees for burials.

Robinson, for the burial board, did not dispute the right of the rector to receive the dividends whilst the fund remained in

Court.

Freeling, for the Corporation.

THE VICE-CHANCELLOR held that the freehold of the churchyard was in the rector, and that he was entitled to any profit derived from it, and to use it in any way which did not interfere with the right of the parishioners to be buried there, and that no title had been shewn in any one else; and ordered that the dividends be paid to the rector for the time being till further order. Solicitors: Torr, Janeway, & Tagart; J. B. Batten; Sharpe, Parkers, & Pritchard; Field, Roscoe, & Co.

V.-C. B. GIRDLESTONE v. NORTH BRITISH MERCANTILE Nov. 4.
INSURANCE COMPANY.

Answer-Exceptions-Discovery.

Exceptions to answer.

given or made in the respective cases, and what is the form of the respective policies."

By their answer the defendant company had not given the that in the absence of any special agreement it was their habit information required by this interrogatory, but simply stated in cases similar to the plaintiff's to grant policies at the ordinary or at a special premium (according to the character of the life), leaving it to the assured to give notice when about to leave the country and apply for permission of the directors to do so upon payment of the extra premium. exception for insufficiency to this portion of the answer. Upon argument in July last, the Vice-Chancellor allowed an declining, and submitting that they were not bound, to take The defendant company had since put in a further answer, twenty instances of insurances granted by them on the lives of gentlemen about to start to India (following the terms of the interrogatory), or, in fact, to set forth any such particulars, or give any such discovery as sought by such interrogatory. The plaintiff had again set down his original exception. Wintle (Kay, Q.C., with him), in support of the exception. that plaintiff was not entitled to discovery as to the way in which Wickens, and H. Davey, for the defendant company, contended they shaped their case, and the evidence by which they supported it, and that there was no sufficient allegation in the bill on which

to found the interrogatory.
Wintle, in reply.

sufficient statement in the bill and in the equities suggested to
THE VICE-CHANCELLOR allowed the exception. There was a
sustain the interrogatory. The discovery sought was simply a
transcript from the books of the company, and the interrogatory
tion of their defence. When at the hearing the onus was upon
did not call upon them to disclose that which formed any por-
the plaintiff to prove what had been the whole course of conduct
of the parties, if he could then shew that in certain instances
before and after the granting of his own policy that course of
conduct on which he relied had prevailed, he was entitled to
submit that to the Court; but he would not be able to raise that
question if the defendants were at liberty to withhold the dis-
closure which he now required. On the former occasion he
thought that the defendants had not sufficiently answered, and
he thought so still.

Exception allowed with costs.
Solicitors: J. Girdlestone; Drake.

Bill of Sale-Apparent Possession-17 & 18 Vict. c. 36, s. 1—
Occupation.

This was an interpleader issue in which the question was whether or not the plaintiff, the grantee of an unregistered bill of sale, was entitled to the goods comprised under it as against the defendant, the execution creditor of the grantor.

The bill was for the rectification of a policy issued on the 25th of December, 1862, by defendant company upon the life of the plaintiff, who soon afterwards proceeded to India as a civil servant. In ignorance, as it was alleged, of the plaintiff's departure for India, the company had not charged him the Indian extra rate, though an additional or special premium was charged Ex. on account of the bad state of plaintiff's health. In 1868, the days of grace for payment of the premium having expired, the company declined to reinstate the policy except upon the terms of payment to them of the Indian extra premium for the years that had elapsed since the assurance was effected, or at least for the current year. Under these circumstances the bill was filed, praying a declaration that the plaintiff was entitled to the benefit of his policy upon payment of the premium originally charged, with liberty to reside in India without extra premium. The interrogatories contained the following passage:-"State what was the habit of the defendant company in 1862 with regard to similar cases, and in particular take twenty instances of insurances granted by such company on the lives of gentlemen about to start for India in the Indian Civil Service, of which ten are the ten immediately preceding the 25th of December, 1862, and ten are the ten immediately subsequent thereto, and state the date of the policies respectively, and of the departure from England of the gentlemen whose lives were insured respectively, and whether any such licenses and extra payments were

The grantor was a seafaring man living, when ashore, at Nelson Street, Sunderland, and upon the 8th of July, 1868, he executed the bill of sale in question. He remained in possession of the goods until he went to sea later in the same year, when the Nelson Street lodgings were given up, and his wife, acting for him, took two rooms in Ward Street, Sunderland, to be ready for her husband's return, and for the purpose of warehousing the goods. During, the absence of her husband she usually resided with her mother, but on two or three occasions slept at Ward Street. When her husband came back he joined his wife at the mother's house.

On the 9th of May, 1870, the plaintiff, pursuant to the terms

of the bill of sale (which was in the common form), demanded | Session, or other competent court, may be con lucted in such payment of the debt, and default being made, the grantor manner and subject to such regulations as to making any persons directed his wife to take the keys to the plaintiff, conceiving that interested parties to the same, and as to the exclusion of any the furniture was his. She did so, and the plaintiff went to claimants who do not come in within a certain time, and as to Ward Street with the keys, opened the rooms, and put his name requiring security from the owner, and as to payment of costs, on some of the goods, which, however, he did not remove; on as the Court thinks just." leaving he locked the door. Next day the execution on the part of the defendant was put in. There was no evidence that either the grantor or his wife were at the rooms from the time the keys were given to the plaintiff until the execution.

At the trial before Cleasby, B., at the Durham Summer Assizes, the jury found in answer to the question left them, that the grantor had, at the time of the execution, abandoned occupation of the house in Ward Street. A verdict was thereupon entered for the plaintiff. Manisty, Q.C., moved for a new trial on the ground that at the time of the execution the goods were still, upon the evidence given, in the apparent possession of the grantor of the bill of sale within the meaning of 17 & 18 Vict. c. 36, s. 1, and, therefore, the bill of sale being unregistered, was invalid.

The 24 Vict. c. 10, s. 13, conferred a similar power of stopping proceedings on the Court of Admiralty as was conferred by the above section on the Court of Chancery. Acting under the authority of the last-mentioned statute the Court of Admiralty, in the course of the proceedings instituted by the defendants, made an order that "all actions and suits pending in any other Court in relation to the subject-matter of this suit, to wit, the liability of the owners of the Normandy, the plaintiffs in this suit [the now defendants] in respect of loss of life, or personal injury, or loss or damage to ships, goods, merchandise, or other things," on the occasion of the collision, "the plaintiffs undertaking to admit their liability in all such actions or suits as soon as this Court shall have pronounced for the damage proceeded for in the cause pending in this Court entitled the Normandy,' or for a moiety of such damage." A copy of this order was served on the plaintiffs in this action, who had, moreover, been represented by counsel in the Court of Admiralty.

The 17 & 18 Vict. c. 36, s. 7, enacts that personal chattels shall be deemed to be in the "apparent possession" of the grantor of a bill of sale so long as they shall remain or be in or upon any house, land, or other premises occupied by him, or as Butt, Q.C. (C. W. Wood with him), moved for a rule calling on the they shall be used and enjoyed by him in any place whatsoever. plaintiffs to shew cause why all proceedings should not be stayed. THE COURT held that goods could not be considered in the By the Common Law Procedure Act, 1852, s. 226," in case any apparent possession" of the grantor within this section of the action, suit, or proceeding, in any court of law or equity shall be Act of Parliament unless there was actual de facto occupation of commenced, sued, or prosecuted in disobedience of, and contrary the premises where the goods were, and that in this case the to, any writ of injunction, rule, or order of either of the superior house in Ward Street was not in the actual occupation of the courts of law or equity at Westminster, in any other court than that grantor when the execution was levied. Mere tenancy of the by or in which such injunction may have been issued or rule or premises was not enough. They therefore considered that the order made.... the said other court shall stay all further proplaintiff was entitled to the goods under the bill of sale. ceedings contrary to any such injunction, rule, or order." This Rule refused. order was not one of a superior court of law or equity, but as it was made by the Court of Admiralty exercising the powers of a court of equity under 24 Vict. c. 10, s. 13, this court in the exercise of its discretion, and acting in analogy to the course Law Procedure Act, 1852, s. 226, applied, ought to stay prothey would be obliged to adopt had the terms of the Common ceedings.

Ex.

Attorney: Briggs.

Nov. 8.

MILBURN v. LONDON AND SOUTH WESTERN RAILWAY COMPANY.
Practice-Staying Proceedings-Order of Court of Admiralty-
Common Law Procedure Act, 1852, s. 226-Superior Court of
Law or Equity.

This was an action brought to recover the value of two cases of goods, delivered to the defendants in March last, to be carried by them from London to Guernsey via Southampton. The goods were placed on board the ship Normandy, whereof the defendants were owners, at Southampton, and were lost in consequence of that ship being sunk on her voyage to Guernsey through having come into collision with a ship called the Mary.

In May, 1870, cross causes of damage were instituted against the Mary and Normandy in the Admiralty Court, and actions (of which the present was one) having been brought against the defendants for the recovery of damages in respect of loss of goods on board the Normandy, proceedings were taken by them in the Admiralty Court under 24 Vict. c. 10, s. 13, and 17 & 18 Vict. c. 104 (Merchant Shipping Act, 1854), s. 514, to determine the liability of the defendants as limited by 25 & 26 Vict. c. 63 (Merchant Shipping Amendment Act, 1862), s. 54.

The 17 & 18 Vict. c. 104, s. 514, enacts that "in cases where any liability has been, or is alleged to have been, incurred by any owner in respect of loss of life, personal injury, or loss of or damage to ships, boats, or goods, and several claims are made or apprehended in respect of such liability, then it shall be lawful, in England or Ireland, for the High Court of Chancery, to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability subject as aforesaid, and for the distribution of such amount rateably amongst the several claimants, with power for any such court to stop all actions and suits pending in any other court in relation to the same subject-matter; and any proceeding entertained by such Court of Chancery, or Court of

Costs-Certificate as to Costs of Reference by Registrar. ' This was a cause of damage instituted against the Amelia on behalf of the owner of the schooner Ouse and her cargo, and on behalf of the master and crew of the Ouse for the loss of their effects and wearing apparel. The defendants filed an admission of their liability, and a reference was directed to the registrar, assisted by merchants, to assess the damages.

The plaintiffs filed a claim for 7311. 7s. The registrar in his report certified that there was due to the plaintiffs the sum of 5361. 19s. only, and stated that he was of opinion that the plaintiffs were entitled to the costs of the reference.

E. C. Clarkson, on behalf of the defendants, moved that the costs of the reference should be disallowed, upon the ground that more than one-fourth had been struck off the claim of the plaintiffs.

Gibson, for the plaintiffs, cited Rule 114 of the "Admiralty Rules, Orders, and Regulations," by which the registrar is empowered, if he sees fit, to report whether any and what part of the costs of the reference should be allowed, and to whom. Motion refused, with costs.

Proctors for the defendants: Shephard & Skipwith.
Proctor for the plaintiffs: H. C. Coote.