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Superior Courts: V. C. Knight Bruce.

he failed to do so, and by an order of July should have probably decided the other way, 1844, he was declared in contempt, but he had but finding it to be in existence he followed it. sworn that he did not get the notice to attend The bill failing on both points ought to be till after the day appointed. He petitioned dismissed. The fact of the existence of the now that the cause come on upon further proviso for cesser of the term was also urged, directions, that he might be declared not in and it was insisted that the husband, on the contempt, and a petition also was presented by marriage, obtained a legal estate for the life of the wife, praying a reference to the Master to his wife in the property, and on the birth of approve of a settlement. the child a legal estate for his own life as tenant by the curtesy, so that if the court did anything asked it would be taking from the man an estate he had acquired by purchase for value on his marriage. Nothing could be said in favour of the means by which that title was acquired, but it was a legal and not an equitable title, and the court had no jurisdiction to interfere with it.

Mr. Swanston and Mr. Prendergast for the plaintiff, argued that the court had full jurisdiction to make an order of reference for a settlement, firstly, on the ground that the husband was in contempt, and the court would deal with him on that contempt committed in the very matter before the court, so as to force him to make a proper provision for the wife, and secondly, by reason that the estate of the Sir J. L. Knight Bruce, V. C. There is so wife was equitable, for that the legal estate in much of moral justice and so much of fairness the property was outstanding in C. Pemberton in my Lord Chancellor's decision in Sturgis v. and J. Hawkins for the term of 200 years. Champneys, that it would, I suppose, be a The bill did not pray a settlement, but that was matter of general regret, if it were decided by not necessary, for an infant may have a decree the House of Lords, not to be according to the upon any matter relating to his case though law. Finding that decision, which I believe as not expressly prayed by his bill, as was held in I have said, to be one founded upon moral jusStapilton v. Stapilton, 1 Atk. 5, and that the court would deal with the real property of the wife in this matter was plain from Lord Cottenham's decision in Sturgis v. Champneys, 5 Myl. and Cr. 97.

Mr. Cole appeared for the trustees.

tice, and tending to general convenience, I gladly follow it. It is true, that in Sturgis v. Champneys, the person who claimed against the wife's equity was a plaintiff seeking the assistance of the court, but I do not collect that the learned judge, to whose decision I am referring, Mr. Russell and Mr. Malins for the husband, rests the case necessarily upon that. or considered insisted that the two grounds taken by the that if she had filed the bill she could not have counsel for the plaintiff failed, and the bill had the equity. He thus expresses himself: "It ought to be dismissed. In the first place, was argued, that it having been held in Lady Elialthough the husband was technically in con- bank v. Montolieu, that the wife may come into tempt so far as the order for declaring him so this court to assert her title to a settlement; was concerned, yet no process of contempt had the claim could no longer be just upon the been taken out upon it, and, therefore, he was not ground of compelling the husband or his fairly to be called in contempt; and secondly, assignee seeking equity to do equity. In this the title to the property was a legal and not an case, the assignee is plaintiff, and it is not, equitable title. The term of 200 years did not therefore, necessary to go beyond the facts now and could not interfere with the legal limitation before me. If that case be applicable to the to the tenant in tail general the wife, and was present, it would only prove that Lady Champonly to be called into existence and exercised neys might herself have come into the court then, if ever the jointure to the widow of Henry as plaintiff, to claim that which she now asks Hawkins should be in arrear, and indeed, even to have imposed as a condition of the decree then, it might not be asserted, for that lady had sought by the husband's assignee. The example powers of distress and entry served to istence of this higher equity could not deprive resume all her jointure out of the rents from her of what she so asks." And my opinion is, the tenants. Doe v. Thomas. 2 Barn. & Cress. that if it would be right to give this relief to 289, expressly decided that a term for raising the wife, being defendant, against the plaintiff portions could not be set up as a defence to an seeking the interposition of the court, and reejectment brought by a tenant under lease ex-sisting her equity, it is right, upon the cases, to ecuted by virtue of a power of leasing con- the principal one of which the Lord Chancellor tained in the same settlement subsequent to the term, and in Doe v. Finch, 4 Barn. & Adol. 283, the court held that a term granted to A with limitation over to B for life, or in fee, gave the immediate estate of freehold to B; and that notwithstanding the existence of a term for raising portions previously limited, B., the tenant in tail, was not prevented from levying a fine. Then with respect to Sturgis v. Champneys, that was a case governing similar cases, but this was not similar, and in Hanson v. Keating, 4 Hare 9, Vice-Chancellor intimated strongly, that had that decision not existed he

alluded in the passage from which I have just read, to give her relief upon a record thus situated. The only question remaining, if I am right so far, is, whether this is an equitable interest? and upon that I really confess myself unable to doubt. I do not say an equitable chattel interest, but I say an equitable interest, for although she or her husband is the owner of the immediate legal fee, yet there is an equitable interest which prevents, the assertion of the title for any purpose but enjoyment, except in a court of equity. Whilst therefore the term of 200 years lasts the title she has is equitable,

Superior Courts: V. C. Knight Bruce.-Queen's Bench.-Q. B. Practice Court. 119

as I understand it. And it appears to me, therefore, that she is entitled to a settlement of the rents-if they are the rents which are in question-either during the joint lives, or until the determination of the 200 years. The question is, whether, if during the joint lives, the term of 200 years shall, (by force of the clause to which reference has been made,) determine, her settlement can endure beyond that. I will hear you upon that if you wish it. My impression is, that I ought to direct a settlement of, or out of the rents of the estate during the joint lives of the husband and wife, if they shall so long live. As soon as the term goes, her title is purely legal.

Swanston asked for leave to take the decree with liberty to apply.

Vice-Chancellor Bruce. I do not see any great harm, without prejudice to whether she may be entitled to a more extended settlement, which you have not argued. As to the contempt, I will continue the order of July, but you must be ordered not to issue any process of contempt without leave of the court. Take the decree in the language of Sturgis v. Champneys, leaving it to the Master, if he think fit, to give her the whole rents, so that it must be not merely "out of" the rents. The receiver and the maintenance must be continued without prejudice to the interests of the jointress in

the term.

Queen's Bench.

(Before the Four Judges.)

in the declaration, one on the subsequent agreement and the other on the charter-party generally. A summons was afterwards taken out by the defendant before Mr. Baron Platt, at chambers, calling on the plaintiff to show cause why one of the counts in the declaration should not be struck out as being in apparent violation of the new rules of pleading. The learned Baron refused to make any order, but indorsed on the summons, "No order, I being satisfied that there is a distinct cause of complaint."

Mr. Rew moved to set aside the indorsement on the summons on the ground that the effect of that indorsement would be to deprive the plaintiff of his costs, unless at the trial he should be able to prove two distinct subjectmatters of complaint. [Lord Denman, Č. J. Is not the order of the learned judge at chambers final?] The cases of Dewar v. Swabey, and Temple v. Keily, go to show that an order like this made by a judge at chambers may be rescinded by the full court. The joining these two counts is not in apparent violation of the new rules of pleading. The plaintiff may not be able at the tral to prove two distinct subject-matters of complaint, but if he fails in proving the indorsement on the charter-party as alleged in the first count, he may still have the count on the charter-party to rely upon. James v. Bourne, Hemming v. Trenery.d Cur, ad. vult.

C

Lord Denman, C. J. We are not disposed to interfere with the discretion exercised by Mr. Baron Platt at chambers, in making this

Heinod v. Wilkin. Michaelmas Term, 1847. indorsement on the summons. We do not

PLEADING.-SEVERAL COUNTS.

A charter party was made between the plaintiff and defendant, but before the voyage was completed a subsequent agreement was made between the parties varying the terms of the original contract. The plaintiff ob

tained leave to have two counts in the declaration, but the defendant afterwards applied to a judge at chambers to strike out one of the counts as being in apparent violation of the new rules of pleading. The judge refused to make any order, but indorsed on the summons, "No order, I being satisfied that there is a distinct cause of complaint."

On motion to rescind the indorsement, the court declined interfering with the discretion exercised by the judge, but expressed an opinion that if the facts stuted were established at the trial, the plaintiff would not incur any risk of losing his costs under the new rules of pleading.

THIS was an action on a charter-party. The contract was, that the vessel should proceed to a certain port, take in a cargo, and return. After the outward voyage was completed, a subsequent agreement was made between the parties with respect to the voyage home, altering the terms of the original contract. Under these circumsances, Mr. Justice Wightman gave leave for the plaintiff to have two counts

think that the plaintiff incurs any risk of los if he fails to establish a separate cause of action ing his costs under the new rules of pleading, on each count, provided he is able to establish before the judge who tries the case the fact which have been stated to us.

Rule refused.

Queen's Bench Practice Court.

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(Before Mr. Justice Erle.)
Exparte William Gray. November 25, 1847.
ATTORNEY.-REFUSAL TO RENEW CERTIFI-

CATE WHEN CONVICTED 18 YEARS AGO OF
A CONSPIRACY.

An attorney was convicted 18 years ago of a conspiracy to concert a fiat in bankruptcy. It was sworn that the judge who tried the cause expressed doubts of the guilt of the applicant in his summing up, and that he was not guilty of any fraud in the transaction. He had since acted as clerk to various attorneys up to the present time. The court nevertheless refused to grant an order for the renewal of his certificate. Prentice moved for an order authorising the registrar to issue a stamped certificate to Mr. William Gray, authorising him to practise as an attorney. It appeared by the affidavits, that the applicant was duly admitted an attor

a 11 Adol. & Ellis, 913. b 1 Man. & Gr. 904. 4 Bing. N. C. 420. d 9 Adol. & Ellis, 926.

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Superior Courts: Queen's Bench Practice Court.

Under all the circumstances of the present case, therefore, it was submitted, that as the case was a very doubtful one as against the attorney, the court would think that he had been sufficiently punished for the share he had taken in the crime with which he was charged, and grant the present rule. In this case it was to be observed that ample time had been given for inquiry into the character of Mr. Gray, and his conduct for the last 18 years.

ney of this court in July, 1813, and that he regularly took out his certificate to practise up to the year 1829, when he ceased to do so by reason of his having been convicted on an indictment charging him with conspiring with other persons to concert a fiat in bankruptcy. The trial took place before the Lord Chief Justice Abbott, and who, it was sworn in the affidavit of the applicant, in summing up the case to the jury, expressed himself of opinion that the evidence against Gray was by no Erle, J. I feel it my duty to refuse this means conclusive, but admitted of great doubt application, and I do so with less hesitation with respect to his guilt or innocence of the because, earlier in the term, a similar applica charge. He was, however, convicted. A new tion was refused in the full court, where the trial was moved for in the Queen's Bench, but facts presented to the court in favour of the the rule was refused on the ground that the attorney were stronger than those relied on in other defendants did not join in the application, the present case. The jurisdiction of this and not on the merits. The applicant swore court over an attorney as its officer, is expositively that he was not guilty of the offence ercised not only in holding out to the world with which he was charged, and that if there that there is no reason to distrust the capacity was any fraud connected with the fiat, he was of the persons who are admitted to practise in not a party thereto, but merely acted as solici-it, but also as a guarantee for their honesty as tor in the regular way of business, and that attorneys. The court then, in exercising its just before the trial the attorney for the prose- jurisdiction in inflicting penal consequences on cution offered to remove him out of the indict-its officers for any misconduct, should take care ment if he would give evidence against the that no inducement is held out to them to act other parties, but this he could not do as he dishonestly, and to believe that crime may be had no evidence to give. After the expiration committed by them with impunity. Now here of his sentence the applicant did not in any way, directly or indirectly, practise as an attorney on his own account, but acted as clerk to and assisted various attorneys of this court in their business, and had thereby supported his family up to the present time; he was, however, now anxious to resume practice on his own account, and to be allowed to take out an annual stamped certificate for that purpose.

there has been an attorney of this court, on a solemn inquiry before a judge and jury, convicted of a conspiracy, and, although it may be true that no crime varies more in its nature than the one of which the applicant has been convicted, yet still I have known cases of conspiracy to make a man bankrupt take place under circumstances of the most cruel and odious kind. I do not think it necessary to It was now submitted, that under all the enter particularly into the facts of this case, for circumstances of the case, it was one in which I am bound to think that the learned judge the court would grant the application; here who tried the case must have known and conthe applicant no doubt had been convicted of sidered the extent and enormity of the crime a conspiracy 18 years since; now no cases committed by the defendant; his opinion of varied more in the measure of guilt which that is of course measured by the amount of attached to them than convictions of conspiracy; punishment awarded, and I find that the in the present case it was of conspiracy to punishment awarded in this case went to the concert a fiat in bankuuptcy, which, in the present day, would not be considered a crime at all; here the attorney too swore that he was not guilty of the crime imputed, and it also appeared that the Lord Chief Justice Abbott seemed to have considerable doubt of the guilt of the defendant. The present application must be looked at as if the party were showing cause against a case for striking off the rolls. Now it is clear that it is not for every case of a conspiracy that the court will do that. There is an anonymous case in 1st Dowling P. C. page 174, on which Campbell showed cause against a rule for striking an attorney off the roll, on the ground of his having been convicted of a conspiracy two years before, and Parke, J., in discharging the rule says, “there are no cases in which there is more variety than in cases of conspiracy; they vary from the highest degree of enormity to the lowest degree of culpability. There is no case which goes the length of deciding that the mere fact of having been convicted of a conspiracy is a sufficient ground for striking an attorney off the roll."

extent of eighteen months' imprisonment. I gather, then, from this sentence, that the case against the defendant was by no means so slight a one as he would lead the court to believe. It cannot, therefore, be expected that, after 18 years have passed since his conviction by the highest court of criminal jurisdiction in the kingdom, that he is to be allowed again to practise as an attorney, and that too upon his own unsupported affidavit. I feel bound, therefore, to refuse this rule, and I do so the more readily as a somewhat similar case has been most fully discussed by all the judges. where the facts in favour of the applicant wer stronger than those in the present case.

Rule refused.

[Where the grounds of objection to the renewal of a certificate appear on the face of the applicant's affidavit, the Incorporated Law Society submit their suggestions through the Master. Such, we understand, was the course in this case.-ED.]

a

Exparte Macey, mte, page 65.

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Superior Courts: Exchequer.-Analytical Digest of Cases.

Exchequer.

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came, which provided, that the Chancellor

Green and others v. Lawrie and others. Nov. might issue a fiat without an act of bankruptcy,

24, 1847.

NOTICE OF AN ACT OF BANKRUPTCY.

Notice that a trader has filed a declaration of insolvency is notice of an act of bankruptcy at that moment, if a fiat afterwards issues

within two months.

THIS was a feigned issue between the plaintiffs, assignees of a bankrupt and execution creditors, to determine whether the latter had received notice of an act of bankruptcy before levying execution. The defendants were the representatives of the Union Bank of London. That bank having made advances to a trader, and not being paid in time took proceedings against him, which were admitted to be adverse, and obtained a judge's order. On the 1st July, 1846, he filed a declaration of insolvency in the office of the Lord Chancellor's secretary. On the 2nd July, a few moments before ten, A. M., a written notice of his having filed the declaration was served personally upon the manager of the bank, as notice of an act of bankruptcy, and at a few minutes before eleven, A.M., a similar notice was served on the attorney in the action, and on the sheriff. Judgment was signed soon after eleven, A.M.-the levy made at one, and the fiat issued in the course of that afternoon.

At the trial before the Lord Chief Baron, the verdict was entered for the defendants, leave being reserved for thr plaintiffs to move to have it entered for them. A rule having been accordingly obtained in Easter Term,

upon the application of a creditor. It was clear, therefore, that until the fiat issued the filing of the declaration was not an act of bankruptcy, but merely a proceeding that ought or might not eventuate in an act of bankruptcy. If a fiat should not issue, it would not be an act of bankruptcy, and from this it followed, that till the issuing of the fiat it was not an act of ankruptcy.

Pollock, C. B. When lying in prison for 40 days was an act of bankruptcy, it dated back from the first of the 40 days, and all who dealt with the bankrupt were bound to take notice of it as such.

Gurney. In Conway v. Nall, (1 Com. Bench Rep. 643,) it had been expressly decided that such a notice as this was not sufficient to invalidate an execution, all the forms required by the 6 Geo. 4, c. 16, s. 6, not having been complied with. That case was decided two years after the passing of the 5 & 6 Vict. c. 122, which He was bound dispensed with those forms. to admit that in the course of that case no allusion whatever was made to this enactment.

Rolfe, B. The statute provides expressly that the party shall be deemed to have committed an act of bankruptcy at the time of filing the declaration, if a fiat issues within two months.

Martin, contrà. This very point was decided in the Court of Common Pleas, on Friday last, in a case of Follett, (one of the official assignees of the London Bankruptcy Court,) v. Hoppee.

Pollock, C. B. I had decided the case at nisi prius in favour of the defendants, on the authority of Conway v. Natl. It is clear, however that the 5 & 6 Vict. c. 122, leaves no doubt on the question.

Russell Gurney now showed cause. The 2 & 3 Vict. c. 29, protected bona fide executions, unless the creditor had notice of an act of bankruptcy before the levy. Where was there notice of such an act in this case? The 6 Geo. 4, Parke, B. It is clear in the case of Conway c. 16, s. 6, provided, that if a trader filed a declaration of insolvency at the office of the Lord v. Nall, the judges never had their attention Chancellor's secretary, and such declaration called to the 5 & 6 Viet. c. 122, which plainly was within eight days afterwards advertised in enacts, that the filing of the declaration shall be the London Gazette, such declaration should deemed an act of bankruptcy if a fiat issues. be an act of bankruptcy. Then came the 5 & The only question then is, whether an execu6 Vict. c. 122, s. 22, which dispensed with this tion creditor having notice of that act of bankform, and provided, that when a trader should ruptey, is deprived of the benefit of the execufile a declaration of insolvency in the office of tion. I have no doubt on the question that he the Lord Chancellor's secretary, he should be is. deemed thereby to have committed an act of bankruptcy, provided a fiat issued within two months. The 7 & 8 Vict. c. 96, s, 41, next

The other Barons concurred.

Rule absolute to enter the verdict for the plaintiffs.

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Analytical Digest of Cases: Courts of Equity.

those three, at his request, wrote letters to him acknowledging the intended trust. After his death a suit was instituted by two of the devisees against the other two, the alien, the testator's next of kin, and the Attorney-General as representing the Crown, to have the rights of the parties declared.

The court refused to make any declaration, except that the lands were not subject to any trust. Burney v. Macdonald, 15 Sim. 6.

ATTORNEY-GENERAL.

Costs. In a suit to have the rights of the parties to the property in question declared, to which the Attorney-General was a defendant as representing the Crown, the court refused to give the Attorney-General his costs, though it gave all the other parties their costs as between solicitor and client. Burney v. Macdonald, 14 Sim. 6.

Case cited in the judgment: Attorney-General v. Lord Ashburnham, 1 Sim. & Stu. 394.

ANNUITY.

1. Apportionment of arrears.-Gift of an annuity of 300l. to the testator's three daughters and the survivors and survivor, with a gift over to the last survivor of the sum set apart to answer the annuity. After the death of one of the daughters, the fund set apart was lost by the misconduct of the trustee, and the annuity remained unpaid for the rest of the lives of the other two; but after their deaths a sum of money forming part of the residue, but of less amount than the original fund becoming available: Held, (reversing the original decision,) that as the last survivor had had no opportunity of receiving the capital during her life, the annuity was to be considered as continuing for her benefit after her sister's death until her own, and therefore, that she was entitled to an apportionment in respect of the arrears of such annuity during that interval, as well as in respect of the principal fund. Innes v. Mitchell, 2 Phill. 346; 1 Phill. 710.

2. Leaseholds.

and every the children of A., in such parts or shares, and in such manner, and subject to such directions, contingencies, and restrictions as A. shall appoint, an appointment of the whole income of the fund to the children for their lives successively is invalid. Lloyd v. Laver, 14 Sim. 645.

2. Power. Attestation.-A will, in order to be a good exercise of a power, was required to be signed and published by the donce in the presence of, and attested by, two or more credible witnesses. The donee made a will, which was signed by him, and was attested thus:-"We the undersigned attest to have Held, that that clause was in effect an attestaseen the above testator sign the above will.” tion to the publication as well as the signature of the will, and consequently, that the power was well exercised. Bartholomew v. Harris, 15 Sim. 78.

ASSETS.

See Specialty Debts.

CHARITY.

sidue of his personal estate to his executors, in 1. Mortmain.-Testator bequeathed the retrust for the establishment or institution of a charitable receptacle, if the same could be done, for 54 poor old men; but if no such institution could be conveniently established, he desired that the residue should be disposed of in cha ritable donations of 67. each to persons of the same description.

Held, that the bequest was wholly void under the Statute of Mortmain. Attorney-General v. Hodgson, 15 Sim. 146.

2. Episcopal Church of Scotland.-Testator, who had been born in Scotland, and educated at Glasgow College, by his will, dated in 1677, and made while he was resident in England, gave the residue of his estate to trustees for the maintenance and education at the University of Oxford of scholars born and educated in Scotland, who should have spent a certain time as students at Glasgow College; and he declared it to be his will that every such scholar should, upon his admission at Oxford, execute a bond conditioned for payment of 500l. to the college, if he should not enter into holy orders, and if he should return into Scotland, there to be preferred or advanced as his capacity should deserve, but in no case to come back into England, nor to go into any other place but only into Scotland for his preferment. The testator died in 1679. Glasgow College was Presbyterian while the testator was a student there, but Episcopalian at the date of his will and of his death. In 1693 a decree was made by Lord Somers in relation to this charity, whereby it was declared that Baliol College should receive the testator's exhibitioners according to the condition of his will, and directions were given as to the number of students In 1759 this decree and their stipend, &c. was adopted by Lord Keeper Henley, with certain variations as to the increasing of the numbers of exhibitioners and the stipends of each. Under these decrees, students had been 1. Power.—If a fund is given in trust for all admitted for many years at Baliol College from

Testator bequeathed two leasehold houses to trustees in trust, out of the rents to pay 501. a year to his daughter-in-law so long as she should remain his son's widow; and to invest the surplus in stock, to be held in trust for his wife for life, remainder for his grand-daughters, and after his death, in case his daughter-in-law should be then married, or after her decease or second marriage, whenever the latter event might happen, to sell the houses and invest the proceeds in stock, to be held in trust for his wife for life, remainder for his grand-daughters. The daughter-in-law continued single, and the trustees paid her 501. a year out of the rents, and disposed of the surplus in the manner directed, until the lease of the houses expired.

Held, after the death of the testator's widow, that the stock purchased with the surplus rents was not subject to the payment of the annuity, notwithstanding the lease had expired. Darbon v. Rickards, 14 Sim. 537.

APPOINTMENT.

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