Analytical Digest of Cases: Courts of Equity. minee." A. and B. afterwards, by letter, requested the agents of the head landlord to make out the leases to B.; and by a subsequent document, signed by A. and B., and written and sent to C., a creditor of A., it was stated, that in case C.'s debt was not paid by a certain time, B. thereby undertook to hold the leases, subject to his claim upon A. for £, and interest for advances made by him to A. for the building of the said houses, and C.'s demand should be satisfied: Held, that if, independently of the usury laws, these documents vested in B., any interest or lien upon the property, they were usurious and void: Held, also, that assuming they did not vest any such interest or lien in B., yet as he, by his answer to a bill filed against him by the assignees under A.'s bankruptcy, insisted that he had such an interest or lien, he was not entitled, as against the plaintiffs, to the leases. 531 Chillingworth v. Chillingworth, 8 Sim. 404; Fereday v. Wightwick, 1 Russ. & M. 45, 50; Sevier v. Greenway, 19 Ves. 413; Ex parte Scrivener, 3 Ves & B. 14; Benfield v. Solomons, 9 Ves. 77, 84; Hindle v. O'Brien, 1 Taunt. 413; Matthews v. Lewis, 1 Anstr. 7; Gowland v. De Faria, 17 Ves. 20; Simpson v. Lord Howden, 3 Myl. & Cr. 97; Rex v, Drury, 2 Lev. 7; Doe d. Metcalf v. Brown. Holt, N. P. C. 295; Pike v. Ledwell, 5 Esp. 164; In re Naish, 7 Bing. 150; Gilpin v. Enderby, 5 B. & Ald. 954; Fereday v. Hordern, Jac. 144; Moore v. M'Kay, Beat. 282, 288; Goodman v. Grierson, 2 Ball & Beat. 274; Williams v. Owen, 12 Law J., N. S. Ch.207. VENDOR AND PURCHASER. 1. Trustee.-Costs.-Trustee of a term in trust for securing to a mortgagee in fee (with a power of sale) his mortgage money, and subject thereto in trust for the mortgagor, his heirs, &c. decreed, in a plain case, to pay the costs of a suit brought against him, to compel him to execute a deed for surrendering the term to a purchaser from the mortgagee. Hampshire v. Bradley, 2 Coll. 34. See Poole v. Pass, 1 Beav. 600. A., a builder, being lessee of lands for terms of 70 years, for building purposes, signed an agreement in writing, whereby, in consideration of monies to be advanced to him by B. for building, he agreed to assign the leases to B., subject to the ground rents, and to the several conditions therein contained, and to take the 2. Mortgage.-Priority.-Solicitor. -A sounderleases from B. (when the houses should licitor took a mortgage in fee from a client, and be completed) for the whole of the terms, entered into possession of the mortgaged prewanting ten days, at a rent that should amount mises. He afterwards transferred the mortgage to eight per cent. upon the money to be ad- to another client, and delivered to him the title vanced, such rents to commence from the time deeds, but remained in possession as the visible of the respective advances. By a subsequent owner of the property, paying interest on the document signed by A., in which he acknow- mortgage money to the transferee. Afterwards, ledged certain advances, and stated that he had in January, 1841, the transferee, upon the apbuilt two shops, after repeating the agreement plication of the solicitor, delivered to him the to pay B. rent at eight per cent. and to take title deeds (except the deeds of transfer) for the under leases, he added-"It is also agreed that purpose of preparing an abstract for a proposed I am to have the privilege of selling the two purchaser of the estate. The purchase was deshops, provided I repay you the amount ad- layed some time, in consequence of a defect of vanced on the shops, and all interest due there. title, but was completed in May, 1841, when on to the day you assign the lease or leases to the purchase money was paid to the solicitor, me or my nominee." Held, that these agree- and the title deeds (with the exception before mentioned) were delivered to the purchaser, who was let into possession, without notice of the transferee's title. In July, 1842, the solici tor absconded, and then, for the first time, the purchaser had notice of the transferee's title. Held, that if the transferee had not, before July, 1842, notice of the payment of the purchase money to the solicitor, and had not authorized or assented to such payment, he was not to be postponed to the purchaser. Stevens v. Stevens, 2 Coll. 20. ments were usurious. If A., his necessities requiring an advance of 1,000l., obtain it from B., upon a bargain, that in consideration of it, A., his executors and administrators, shall pay B., his executors and administrators, an annuity of 80l. per annum, for a term of 70 years, commencing immediately, the annuity to be secured by the covenant of A., binding himself personally, and after his death, his assets generally, the transaction is usurious and bad on that ground, unless upheld by those provisions of the legislature, which have recently, as to certain cases, repealed or relaxed the usury laws. Assignees of bankrupt, who have entitled themselves to the declaration of a court of equity, that contracts entered into between the bankrupt and one of his creditors are usurious, are entitled to consequential relief, on the terms, not of paying to the creditor the amount of his advances, but of allowing him to prove under the fiat for the amount of these advances, with legal interest. Belcher v. Vardon, 2 Coll. 162. Cases cited: Evans v. Bicknell, 6 Ves. 174; VOLUNTARY DEED. 1. Consideration.—Bankuptcy.— A deed of settlement, in form voluntary, but appearing from extrinsic evidence to have been made for valuable consideration, supported against cre• ditors. A person Cases cited: Doe d. Titford v. Chambers, 4 who was in loco parentis to a marCamp. 1; Doe v. Gooch, 3 B. & Ald. 664; ried woman, devised to her a rent charge for 532 Analytical Digest of Cases: Courts of Equity. her life, and bequeathed certain personal property to her for her separate use. The will being inoperative, both as to the real and personal estate, the heir at law and next of kin of the testator made a partial sacrifice of their interests in order to carry the testator's intentions into effect; the property given up by them being invested in the funds and afterwards settled upon the woman and her children. At the time of the investment the husband of the woman was insolvent in his circumstances, and about three months after the date of the settlement he became bankrupt. Held, that the settlement was for valuable consideration, and was good against the husband's creditors. Pott v. Todhunter, 2 Coll. 76. 2. Heir at law. Semble, the heir at law of the author of a voluntary deed cannot avoid the deed under 27 Eliz. c. 4, by a conveyance for value. Parker v. Carter, 4 Hare, 409. WILL. 1. Equitable assets.-A trader devised his real estate to a person, whom he also appointed his executor upon trusts for sale; and he, by his will, declared, that the monies arising from such sale should be deemed part of his personal estate; he then directed that his personal estate, which should be remaining after payment of his debts, should be collected, and the convertible part of it converted into money, and that all the monies arising from the said real and personal estates should be invested in the funds or on real securities. Held, that the real estates were equitable assets, for payment of the testator's debts. Shakels v. Richardson, 2 Coll. 31. See Kidney v. Coussmaker, 1 Ves. jun. 436; 2 Ves. jun 267; Gibbs v. Ougier, 12 Ves. 413. 2. Survivorship.-Testator devised certain messuages to trustees upon trust, to pay the rents to his wife for her life, and after her decease he gave and devised the said messuages to the same trustees, upon trust to sell, &c., and apply the proceeds amongst all his the testator's nephews and nieces, children of his brothers A. and B., and his sister C., and the survivors and survivor of them, share and share alike, to be paid to them respectively as they attained the age of 21 years. The testator's wife survived him. Held, that the property was divisible amongst such only of the children of A., B., and C., as survived the widow. Williams v. Tartt, 2 Coll. 85. by her in the presence of the above three wit nesses. Upon the examination of the witnesses after the death of the testatrix, two of them deposed to the testatrix having signed the will in the presence of all the witnesses, but the third stated her belief that the will had been signed before the witnesses entered the room. Held, that, coupling the memorandum with the testimony of the witnesses, there was sufficient evidence of signing in the presence of the witnesses, or two of them, to satisfy the requisition of the power in that respect. Held, also, that the testatrix calling the witnesses to attest her will, sealing it, and declaring it to be her act, (which circumstances were given in evidence,) thereby published her will within the meaning of the power. Held, further, that as no attestation clause was required by the power, the omission of any statement as to publication in the memorandum (considered as an attestation clause) was immaterial. Held, therefore, under all the circumstances of the case, that the will was a due execution of the power. Where an attestation clause is not required, the mere circumstance that there is an attestation clause specifying certain things, does not exclude evidence that other things were done besides those which are attested. Postlethwaite, 2 Coll. 108. Warren v. Cases cited: Lempriere v. Valpy, 5 Sim. 108; V. Reilly, 2 Curt. 1; Peate v. Ougley, Com. 197; Strode v. Perrier, 1 Mod. 267; Hoil v. Clark, 3 Mod. 211; Wallis v. Wallis, 4 Burn's Ecc. Law, 100, (9th ed.); Trimmer v. Jackson, ib. 102; Miller v. Brown, 2 Hagg. 209; Ward v. Swift, 1 C. & M. 171; Johnson v. Johnson, 1 Cr. & M. 140; Curtis v. Kenrick, 3 M. & W. 461; Simeon v. Simeon. 4 Sim. 555; Bartlett v. Ramsden, Vin. Abr. Devise, . n. 2 pl. 16; 7 Taunt. 355; 9 Adol. & Ell. 950; 3 Rep. 31, a,; Moodie v. Reid, 7 Taunt. 551; Brett v. Rigden, Plowd. 343; Butler and Baker's case, 3 Rep. 31, b.; White v. Trustees of British Museum, 6 Bing. 310; 4 B. & Ad. 14; Forbes v. Gordon, 3 Phill. 628; Friswell v. Moore, 3 Phill. 135; Miller v. Brown, 2 Hogg. 209; Masterman v. Maberly, ib. 247; Allen v. Hill, Gilb. Eq. Rep.260; Keigwin v. Keigwin, S Curt. 607, 610; Burdett v. Spilsbury, 10 Cl. & Fin. 340; 9 Ad. & Ell. 974; Wright v. Wakefield, 17 Ves. 454; Jones v. Dale, Sugd. Powers, vol. 1, p. 284, 7th edit.; Pennant v. Kingscote, Jur. vol. 7, p. 754; Barnes v. Vincent, Jur. vol. 9, p. 260. 4. Inconsistent clauses.--Maintenance.-TePublication.-Attestation.-Execution of tees upon trust to pay certain annuities to his nant for life.-Testator devised estates to truspower.-A married woman having power under wife and other persons, with a direction, that her marriage settlement to dispose of personal during the life of his wife the surplus rents estate by a will to be signed and published by her in the presence of two or more credible witnesses, made her will in pursuance of the power, and signed her name at the foot of it. Then followed the signature of three witnesses, and below those signatures was a memorandum in the hand-writing of the testatrix, to the effect that the will had been signed and sealed Cases cited: Pope v. Whitcombe, '3 Russ. 124; Doe d. Long v. Prigg, 8 B. & C. 231; Leem. ing v. Sherratt, 2 Hare, 14; Taylor v. Beverley, 1 Coll. 108. 3. should be applied in discharge of incumbrances affecting the devised property, and subject to these trusts; he declared that the trustees should stand seised of the property, in trust for various persons (not in esse at the testator's death) successively in tail, with remainder to the testator's niece for life, with a direction, that during her minority the rents Analytical Digest of Cases; Courts of Equity. 533 Cases cited: Read v. Devaynes, 3 Bro. C. C. 95; 2 Cox, 285; Stackpoole v. Howell, 13 Ves. 417; Calvert v. Sebbon, 4 Bear. 222; 5 Beav. 630; Piggott v. Green, 6 Sim. 72; Cockerell v. Barber, 2 Russ, 585; Dix v. Reed, 1 S. & S. 257; Griffiths v. Pruen, 11 Sim.202; Christian v. Devereux, 12 Sim. 264; Milner v. Mil. ner, 1 Ves. sen. 106. should be applied as after mentioned; and then followed a clause to the effect, that if any person beneficially entitled to the rents should be in his or her minority, an annual sum not exceeding 3007. should be applied out of the rents to the maintenance of that person, and that the residue of the rents should accumulate, and the accumulations be applied in the discharge of incumbrances: Held, upon the construction of 8. Produce of sale.-Lapse to heir at law.— these inconsistent clauses, and other parts of Testator devised his real estates to his daughter the will, that the testator's niece was not (at for life, and after her death devised them to his least, during the life of the testator's widow) executors, with a direction to sell them and entitled to any part of the rents for her main- divide the sum arising from the sale, amongst tenance during minority. Williames v. Ed-"my grandchildren that are living at my wards, 2 Coll. 176. See Revel v. Watkinson, 1 Ves. sen. 93; Foljambe v. Willoughby, 2 S. & S. 165; Stopford v. Lord Canterbury, 11 Sim. 82. 5. Whether "legacies" includes annuities.Upon the construction of a will: Held, that the word "legacies," did not include annuities. Cornfield v. Wyndham, 2 Coll. 184. shares. daughter's death, and by the present marriage, in the following manner:-I give and bequeath to my grandson A. one-fifth, to B. one-fourth, to C. one-fifth, and the other parts to be equally divided amongst the other children living at the death of my daughter by this present marriage." The testator died leaving his daughter his heiress at law, and also next of kin. She had at that time seven children, of whom A. B. and C. were three. A. and B. died in their mother's lifetime: Held, that their shares lapsed to their mother, as the testator's heir at law, as personal estate. Hatfield v. Pryme, 2 Coll. 204. See Tawney v. Ward, 1 Beav. 563; Bain v. Lescher, 11 Sim. 397. Cases cited: Shipperdson v. Tower, 1 Y. & C. C. C. 441; Rose v. Cunynghame, 12 Ves. 29; Sibley v. Perry, 7 Ves. 534; Swift v. Nash, 2 Keen, 20; Duke of Bolton v. Williams, 4 Bro. C. C. 361, 376, 385,; 2 Ves. J. 216. 6. Accruing shares.- Issue of children.Upon the construction of a will: Held, that accruing shares of personal estate were not 9. Derogation of absolute gift. - Testator subject to the trusts declared of the original gave his daughter 4. " 2,000l. after marriage." In a subsequent part of the will was the followTestator bequeathed one moiety of his resi-ing clause :-"As to my daughters, I trust that duary personal estate to trustees, upon trust to they will not dispose of themselves in marriage pay the interest and dividends equally amongst their assistance in drawing up proper articles, without consulting my executors, and getting such of his children as should be living at a certain period, for their lives; and after the to the intent that should any of them die without issue, then, on the decease of their respecdeath of any of them, upon trust to stand possessed of a proportionate share of the fund for tive husbands and themselves, their fortune to the use of the issue of the child or children so revert to their surviving brothers, share and dying, absolutely. "But in case of such child share alike." The testator's daughter A. maror children dying without leaving issue, then ried, and died without leaving issue, in the upon trust to stand possessed of the proportion-lifetime of three of her brothere. The brothers ate share of the child so dying, in trust for, and afterwards died in the lifetime of the daughter's husband. Held, that the gift (if any) in deroequally to be divided between and amongst my other children then living, and the issue of gation of the absolute gift of 2,000l. having such of them as may then be dead, such issue, failed, the gift remained absolute, and the nevertheless, only taking the share there, his, husband was entitled to it. Eaton v. Barker, or her parent would have taken if living." H., 2 Coll. 124. one of the children of the testator, who was living at the period of distribution, died, leaving issue a daughter, who died without issue; afterwards, W. and A., two other of the testator's children, died without issue: Held, that the daughter of H. took no interest in the shares 10. Vested interests.—Testator bequeathed of W. and A. Macgregor v. Macgregor, 2 Coll. the dividends of 10,000l. stock to his wife for 194. See Eyre v. Marsden, 2 Keen, 564; 4 her life, and after her decease he gave and beMyl. & Cr. 231; Crowder. Stone, 3 Russ. 217; queathed the principal unto and amongst A., Mackell v. Winter, 3 Ves. 536. B., C., and D., and all and every other the 7. Legacy to executor.-Examination of ori-child and children of N., that might be living ginal will. Upon the construction of a will: at the decease of his said wife, to be transferred Held, that a legacy was given to an executor, and paid to them respectively on their attainnot in his character of executor, and that he ing the age of 21 years, with benefit of surdid not lose the legacy by not proving and not vivorship in case any of them should die under acting under the will. that age. N. never had any other children Original will of personalty examined in order than those named in the will. They all attained to arrive at the true construction of certain be-21, and died in the lifetime of the widow. quests. Compton v. Bloxham, 2 Coll. 201. Cases cited: Knight v. Knight, 3 Beav. 173; 110. Held, that they took vested interests in the 534 Uunqalified Practitioners.—Superior Courts: Rolls.-Q.B. Practice Court. 10,0001. stock. 130. Roberts v. Burder, 2 Coll. [paring and serving the notice, to dismiss which Cases cited: Dansen v. Hawes, Ambl. 276; UNQUALIFIED PRACTITIONERS UNDER THE POOR REMOVAL BILL. Mr. Bromhead now moved, in pursuance of the notice, contending, first, that the plaintiffs were not entitled to an order to amend, and secondly, that even if the order to amend were regularly obtained, the costs of the motion must be paid. He cited Waller v. Pedlington, 4 Beav. 124. Mr. Lloyd, contrà, said there were several defendants, and the time not having expired By the 15th section of this bill, the commis-with regard to some, the order to amend was sioners may authorise the board of guardians properly obtained according to the terms of to appoint a paid officer for the purpose of the 65th Order of May, 1845, which disattending to all matters relating to the settle- tinguished cases of a single defendant from those where there are several defendants. The ment and removal of the poor, and the commis-order, then, being regular, it was sufficient to sioners may make rules for regulating the mode tender the amount of the costs incurred, up to in which removals and all proceedings relating the time when the order to amend was served, thereto shall be conducted, and exercise the and it could not be disputed that the amount tendered was sufficient to cover them. same powers as are given by the Poor Law Amendment Act, 5 W. 4, c. 76. It thus appears, if we rightly understand the effect of this enactment, that instead of the clerks of boards of guardians being confined to proceedings at petty sessions, they may be authorised (though not admitted as solicitors) to act at the quarter sessions, notwithstanding the Attorneys' Act, 6 & 7 Vict. c. 73. The practitioners who are interested in these proceedings should bestir themselves to set this right. We are sure that, as well the interest of the public, as the profession, is concerned in the appointment of persons duly qualified to perform the legal business connected with the execution of the act. RECENT DECISIONS IN THE SUPE- REPORTED BY BARRISTERS OF THE SEVERAL Rolls Court. DISMISSAL OF BILL-COSTS. Semble, if a plaintiff who is served with a notice of dismissal of his bill for want of prosecution, obtains and serves an order to amend, (he being in time to obtain such an order,) and tenders a sufficent sum to pay the costs incurred in respect of the notice, he will not be liable to pay any further costs, if the motion is afterwards made. The bill in this case was filed the 6th of June, and the answer of some of the defendants was, according to the last general orders, to be deemed sufficient on the 13th of November, and on their behalf, notice to dismiss, for want of prosecution, was given on the 17th of December. On the 19th of December, an order was obtained for leave to amend, which was served on the same day, and a tender alleged to have been made of 20s., for the costs of pre The Master of the Rolls said, it might be an important question, whether, if an order to amend were regularly obtained, and sufficient costs were tendered to cover the expenses incurred up to the time of such tender, the parties who thus endeavoured to save the time of the court, and prevent farther litigation, should be charged with the costs of bringing on such a motion. With regard to the question of the regularity of the order, his lordship said he would consider of it. Mr. Lloyd, at the subsequent hearing of the case, admitted that no actual tender of costs had been made, and therefore, that the defendants were entitled to the costs of the motion. Lester v. Archdall. January, 12, 1846.b Queen's Bench Practice Court. POOR.-APPEAL TO SESSION.-WHAT CON66 STITUTES A HEARING." The consideration of a notice of appeal is merely preliminary to a “hearing" of the appeal; therefore, if at the trial of an appeal notice be objected to, and the sessions hold it to be bad, and dismiss the appeal, this court will, if the decision be erroneous, award a mandamus to enter continuances and hear. On the 15th of April, 1845, an order was made by two justices of Surrey, upon the application of the parish officers of St. Mary Magdalen, Bermondsey, for the removal of certain paupers to the parish of St. Anne's, Westminster, and the order was served upon the officers of the last-mentioned parish on the following * In Piper v. Guttery, 11 Sim. 282, it was held, that where a replication is filed after notice of motion to dismiss, and sufficient costs are tendered, and the motion is brought on by the defendant, he will be ordered to pay the costs of it. For the judgment of the court on the question of amendment see the report of this case, vol. 31, p. 416, ante. Superior Courts: Queen's Bench Practice Court.-Common Pleas · 535 the sessions to enter continuances and hear. day. On the 14th of June, notice and grounds / the appellant is turned round upon a prelimi of appeal for the next Surrey sessions, to be nary objection, which appears to this court to holden on the 1st of July, were duly served. be untenable, a mandamus will lie to compel At those sessions, accordingly, the appeal came on for trial; but after the appellants had proved service of the notice and grounds of appeal, by calling and examining the party who served them, the respondents objected to the sufficiency of the notice, and the justices, after considering the objection, held it to be fatal, and refused to hear, and dismissed the appeal. Under these circumstances, a rule had been obtained calling upon the justices of Surrey to show cause why a mandamus should not issue, commanding them to enter continuances, and hear the said appeal; against which Baldwin now showed cause, and contended that what had taken place amounted to a "hearing" of the appeal, just as much as if witnesses had been examined upon the merits, or the sessions had decided as to the sufficiency of the examinations; and that, such being the case, the decision of the sessions, whether right or wrong, could not be inquired into by this court. Regina v. Kesteven, 1 New Sess. Ca. 151; Regina v. The West Riding, id. 247. Pashley and Corner, contrà. Any discussion or adjudication upon the insufficiency of the notice of appeal is merely preliminary to entering upon a "hearing;" and, according to the statutes 9 Geo. 1, c. 7, s. 8, and 4 & 5 Will. 4, c. 76, s. 81, if the notice is held to be bad, any thing in the nature of a hearing would be illegal. The cases, with respect to the effect of an adjudication by the sessions, upon the sufficiency of the examinations, do not apply, for such an adjudication necessarily involves the whole merits of the appeal. Exparte Ackworth, 3 Q. B. 397, note; Regina v. Saint Mary, Lambeth, 2 New Sess. Ca. 36. Williams, J., after holding that the justices had wrongly decided against the validity of the notice of appeal," said that he had no doubt that a mandamus ought to go, but would take time to look into some recent cases. Cur. adv vult. On Jan. 31, his lordship delivered judgment, saying:-I am perfectly satisfied that there was no "hearing" in the present case, and it has been the constant usage to grant a mandamus when an appeal has been wrongfully dismissed by the sessions upon a preliminary objection. Rex v. Gloucestershire, 1 B. & Ad. 1, is a strong case to that effect. There, after an appeal had been gone into upon the merits, and a witness called, a preliminary objection was taken by the counsel for the respondents, upon which the sessions dismissed the appeal. The point made in the present instance was then raised, and it was expressly decided, that when • The objection to the notice was that it did not appear to be given by the whole body of the churchwardens and overseers of the appellant parish, but by a a majority only. His lordship held, that it sufficiently appeared to have been given by, or on behalf of, the whole body. Regina v. The Justices of Surrey. Hilary Term, 1846. WRIT OF Common Pleas. SERVICE OF COPY.-WAIVER. — APPEAR. The court held, also, that the irregularity was not waived, by an offer on the part of the other defendants to pay the amount claimed, the defendant in question not having appeared to the writ. A RULE had been obtained, calling upon the plaintiff to show cause why the service of the copy of the writ of summons made upon one of the defendants, James Perrott, should not be set aside for irregularity. The objection to the validity of the service was, that the defendant, James Perrott, was described in the copy of the writ as residing at Bristol, in the county of Gloucester, whereas Bristol was a city and county of itself. It appeared from the affidavits, that James Perrott was served with the copy of the writ at Bristol, and more than 200 yards from the county of Gloucester. Byles, Serjeant, in showing cause, submitted that the description of James Perrott's residence was sufficient, as Bristol, although not surrounded by the county of Gloucester, was partly situate within that county, and he referred to Rippon v. Dawson, 7 Dowl. 247. Tindal, C. J., observed that the service in question was not merely irregular, but unreal. Bristol could not be within the county of Gloucester, unless it were bodily within' the county, which it was not. Byles then contended that the irregularity of the service had been waived, as the attorney of the defendants had, since the writ was served, offered to pay the amount of the debt, and he cited Holt v. Ede, (1 Dowl. & L. 68,) and Rawes v. Knight, (1 Bing. 132.) Channell, Serjeant, in support of the rule, | argued that as the defendant, James Perrott, had never appeared to the writ, he could not be bound by the act of the attorney for the other defendants. Per curiam. Rule absolute. Levi v. Perrott and others. |