148 Superior Courts : Queen's Bench Practice Court.-Common Pleas. he had done all that was required of him, and that the defendant was bound to have pleaded in due time. purpose. David Attfield | Cold Ashby | occupier of land above 50l. | Own occupation. | Prentice, contra, contended, 1st, that the payment of the costs was a condition precedent, David Ashfield, being sworn, stated that Nichols v. Bozon, 13 East. 185; and 2nd, that during the 12 months of his occupancy he had as the plaintiff had not tendered the full balance held a farm of Mr. Loveday of sufficient value according to the Master's allocatur, but had up to Lady-day, 1847, when he left it. At chosen to deduct 4s. upon a supposed miscal- | Michaelmas, 1846, he took another farm of culation, he had not tendered the proper ba- Dr. Walker, also of sufficient value, in the lance of costs, independently of which this was same parish, which he held at the then present not a case in which the plaintiff was justi- time, Oct. 7th, 1847. He had not made any fied in setting off costs, inasmuch as the Master new claim. The question for consideration on taxation had given no permission for the was, whether the claim already on the register was sufficient to entitle him to vote in respect of successive occupation. The said Edmund Singer Burton quoted the case of Bartlett v. Gibbs, Lutwyche's Reg. Cases, vol. 1, part 1, page 73, in support of his argument against the vote of the said David Attfield. The revising barrister was of opinion that the qualification of the said David Attfield was sufficiently described in the said list, there having been no hiatus between the said occupations, and that it was not necessary for him to send in a new claim, and that the case of Bartlett v. Gibbs did not apply, and the revising barrister accordingly retained the name of the said David Attfield on the list of voters for the said county. Patteson, J. The payment of costs was no doubt a condition precedent to amending, and I think the plaintiff was right in deducting his own from the defendant's costs in the way that he did, without seeking for permission to do so from any other authority. If, therefore, the actual balance had been tendered, I should have held that this is a regular judgment. But whether there was or was not an error in the casting up, the allocatur is for a precise sum, and the party who avails himself of his right to set of costs, should tender the exact sum as appears by the allocatur. As long as the allocatur remains, it must be taken to be for the correct sum, and therefore final. If there be a mistake, as it is said there was in this case, Humfrey, for the appellant. The question the party has no right to take upon himself to here is, whether a man who had in any previous correct it, but should have applied to the pro-year sent in his claim as occupier of land which per quarter to have had it set right. The judgment, therefore, in this case was irregular. Rule absolute. Common Pleas. Burton, appellant, and Gery, respondent. he then held, but who afterwards ceases to hold that land, and becomes the occupier of other land of the same tenure, and exactly answering the description in the register, was not bound to send in a new claim. Maule, J. Suppose a man living in a place called Rose Hill, and, there being several places of that name in the neighbourhood, he removes to another Rose Hill, I do not apprehend that without a new claim the act would be complied (Southern division of the county of Northampton.) QUALIFICATION TO VOTE AS OCCUPIER. with. It is to enable parties to look at the LANDS HELD IN SUCCESSION.-NEW NO- Where a party already on the register of property and see whether it was of sufficient value, that the claim is required by the act. Humfrey. Uuder the express provisions of the 4th & 5th sections of the Registration Act, a new claim is required, and, if sent in, would have appeared on the new list of claimants, and thus notice given to the public of the change. He referred to the cases of Bartlett v. Gibbs, 5 Man. & Gr. 81; and Gadsby v. Barrow, Lutw. Reg. Cas. Hayes for the respondent. The case of Gadsby v. Barrow was not applicable to the present case, as it related only to the joining of the value of certain property. So also the case of Bartlett v. Gibbs was decided on the ground AT the court holden before the barrister ap- of an insufficient description of a part of the pointed to revise the list of voters for the said qualification. But here the description was southern division of the county of Northamp- enough to embrace both the houses. Then, ton, for the revision of the list of voters for as to the provisions of the Registration Act, the parish of Cold Ashby, in the said division the 4th section only requires a claim to be of the said county, Edmund Singer Burton made where a person "shall not retain the objected to the name of David Attfield being same qualification as described in the register," retained on the said list. and that may mean the same as the register The facts of the case were as follow, the | will describe. Then, by the 40th section, it is 66 Superior Courts: Common Pleas.—Analytical Digest. 149 expressly enacted, that where the description | new claim be sent in, provided it is proved that of the property of any person who shall be in- on the last day of July he possessed "the same cluded in "any such list" shall be wholly qualification in respect of which his name has omitted, or be insufficiently described for the been inserted in such list;" were material to purpose of being identified, such barrister shall show that the 4th section was framed with a expunge the name of every such person from view of giving full information whereby to such list, unless the matter or matters so ascertain the identity and sufficiency of the omitted or insufficiently described be supplied claimant's property. It is just as important to the satisfaction of such barrister before he that a party who ceases to occupy the proshall have completed the revision of such list, perty in respect of which he has already in which case he shall then and there insert claimed should give notice of any change of the same in such list." property as that he should give the original Maule, J. That section puts you out of notice; the very object of the legislature being court, I think. There is some leniency shown that the qualification of the claimant should be therein to a defect in the description of a open to investigation. It seems to me that the party's place of abode, but with respect to the act requires a party claiming in respect of a qualification there is none. The proviso at the successive occupation to send in a notice of end of the section declares, that where a party claim of the property so held in succession, is objected to on the ground of his having and there was very good reason why the legis changed his place of abode "without having lature should so require. On the whole, theresent in a fresh notice of claim, it shall be law-fore, I think the party in the present case was ful for the barrister, on revising the list, to bound to send in a new claim, as he did not, retain the name of such person on the list of according to the words of the 4th section, roters, provided that such person, or some one tain the same qualification," and that the dein his behalf, shall prove that he possessed on cision of the revising barrister is erroneous. the last day of July the same qualification in respect of which his name has been inserted in such list, and shall also supply his true place of abode." Hayes. But what is to be taken as the meaning of the words "such list" in that section? Here there is a list containing a description which embraces both properties. Williams, J. The qualification described in the list which is alluded to in this case, the party it is shown, had ceased to occupy at Lady-day, 1847. Hayes. But the description equally applies to both the qualifications, and what necessity then can there be for sending in a new claim? Humphrey, in reply, was stopped by the court. Wilde, C. J. I entertain no doubt in this case either upon the strict construction of the statute, or the spirit and reason of its provisions. The 4th section expressly enacts, that where persons who are on a former register shall not retain the same qualification,-by which I understand not simply the same legal description of qualification, but the same property in respect of which the qualification had been claimed, they shall send in a new claim to vote. I find, also, that where a party changes his place of abode, the act requires that he shall send in a new claim, and this, as well as the proviso in the 40th section, enabling the barrister, in case of a change of the place of abode, to retain the voter's name, although no re Coltman, J. It is clear that the party here was entitled, as far as qualification is concerned, to be on the register, the only question is, whether he has taken the proper means of securing his being registered. It is rather by implication than by the express terms of the act that any forfeiture of the right arises in this case, because section 4 enacts that the overseers shall publish a notice requiring persons who "shall not retain the same qualification or continue in the same place of abode," &c., to send in a new claim, which certainly leads to the result that it was the intention of the legislature to oblige such parties to send in a fresh claim. But the clause does not say expressly that unless such claim be sent in the right to be put upon the register shall be forfeited. The proviso at the end of the 40th section, however, showed distinctly that unless such claim in the case of a change of qualification be sent in, the party loses his right to vote. Maule, J. Whether the qualification is the same or not is to be determined by looking at the property itself, describe it by what words you would, and if so, then it must be conceded that the party here is in the same situation as he would have been in if there had been a difference in the descriptions of the properties. There was just as much likelihood of being misled; and I thing, therefore, a new claim was necessary. Williams, J., concurred. ANALYTICAL DIGEST OF CASES. Courts of Equity. CONSTRUCTION OF STATUTES. ARBITRATION. Submission to arbitration.-Rule of court. Motion. The submission to arbitration may, under the 9 & 10 Will. 3, c. 15, be made a Decision reversed. rule of court, not only after the award has been made, but after the last day of the term following the publication of the award; and when, therefore, it is no longer open to either party to complain of the award, on the ground of corruption or undue practice. 150 Analytical Digest of Cases: Courts of Equity. An objection to the validity of an award apparent upon the award, is not an objection to making the submission a rule of court under the statute. A motion to make a submission to arbitration a rule of court under the statute may be made exparte: Semble. Heming v. Swinnerton, 5 Hare, 350. Case cited in the judgment: Wilkinson v. Page, 1 Hare, 276. CORPORATION. Trust.-Construction of deed. -Vendor and purchaser.-Invalid contract.-The stat. of 27 Eliz. c. 20, authorized the corporation of Plymouth to construct a watercourse or conduit for bringing a supply of fresh water from a distance to Plymouth for public objects, as for supplying the ships and town, and to scour the haven. Mills were erected on the watercourse, and the corporation afterwards conveyed away a portion of their interest in the leat: Held, that the corporation had undertaken the formance of a public trust and could not divest themselves of the means of fully executing it; that the primary duty of the corporation was to provide for the public objects contemplated by the act, and that the surplus water only was after satisfying the public services to be applied for the use of the mills. The court also considered it to be doubtful whether the corporation could alienate the watercourse, or any part, for satisfying their own debt. per Upon the construction of the particular instruments, held, that by the conveyance of onefourth "of and in the leat or watercourse," the purchaser acquired no interest of the water, other than such a part as remained after supplying the public purposes for which the leat was authorized to be made. A hospital having a corporate charter, was established in close connexion with a municipal corporation. The ex-mayor was to be the governor, the master and assistants were elected from the corporation, and the mayor and the aldermen were visitors: Held, that the corporation and hospital were, in equity, incapable of contracting, and a purchase by the corporation of property belonging to the hospital was set aside. The Attorney-General v. The Corporation of Plymouth, 9 Beav. 67. CORPORATION TRUSTEES. The court will not make an order for filling up vacancies in charity trustees under the Municipal Corporation Áct, unless it be satisfied that the existing number is practically insufficient, and that inconvenience arises from not having more. Worcester Charities, in re, 2 Phill. 284. FOREST OF DEAN. Power of arbitrators.-Setting aside award. -Equity to enforce parol contract.-Commissioners appointed under an act of parliament to set out the metes and bounds of mines and quarries in the Forest of Dean, and to fix the rent to be paid for the same: Held, under the terms of the act, to have no power to compel a miner to pay in money for by-gone workings, or to exclude him from the award if he refused to make such payment. Commissioners appointed by an act of parliament to determine the respective rights of the Crown and the customary miners on Crown lands, had made an award giving a benefit to a miner, but had required such miner to submit to terms which they had no power to impose, and which the miner did not afterwards fulfil: Held, that after the time limited by the act for making the award had expired, the court would not set aside the award at the suit of the Crown, as it could not then restore the miner to his rights under the act. In the case of an award made upon the faith of a parol contract, entered into by a party taking a benefit under the award, that such party would pay a sum of money to the Crown, an information by the Crown seeking specific performance of the parol contract, and thereby in effect to add the parol agreement to the award, cannot be sustained. The agent employed by a miner in the management of his mines and in his communications with the commissioners for setting out the metes and bounds and fixing the rents and duties in respect thereof, is not therefore the agent of the miner for the purpose of making a contract with the commissioners, not within the powers which have been conferred upon them in that character. insist upon, Semble, The refusal to pay a certain sum of money according to an agreement upon the faith of which an award was made, although it was a stipulation which the commissioners making the award were not empowered to equity the party to whom the monies were to would be a ground upon which in have been paid might resist the performance of the award if the other party had sought the aid of the court to enforce it. Attorney-General v. Jackson, 5 Hare, 355. Cases cited in the judgment: Pember v. Mathers, 1 Bro. C. C. 52; Clarke v. Grant, 14 Ves. 524. FRAUDS, STATUTE OF. 1. Effect of repudiation of trust by trustee.— A. and B., for whom land had been purchased by C. with a view to its being resold in building lots on the land being conveyed to them, signed a paper writing purporting to be a memorandum of an agreement between them relative to the land, by which it was agreed “that they should each advance half the purchasemoney, and receive interest on the same at 5 per cent., and that they were to have each onethird interest in the purchase, and to reserve one-third of the profits arising therefrom for C. in lieu of his commission for purchasing, selling, surveying, valuing, and laying out the land in lots, or any other services that might be required of him; but that it was clearly and distinctly understood that C. should have no power or authority whatsoever over the land, and that he should not be entitled to receive any compensation therefrom until the whole was sold and paid for." The land having afterwards greatly increased in value, A. and B. refused to recognize C.'s interest in the specu Analytical Digest of Cases: Courts of Equity. 151 lation, and offered him a money compensation inclosures or other lands in the township as for his services. Whereupon C., who had ob- they should deem necessary: Held, that the jected from the first to the clause in the memo- act did not empower the commissioners to alter randum which excluded him from all control the drains in the common lands so as to overas inconsistent with the original terms for load an ancient drain which flowed through the which he had verbally stipulated, filed his bill common lands from another township, and for an immediate sale of the land, and the thereby to obstruct the drainage of the lands court being of opinion that the defendants, by in such other township, to the damage and inrepudiating the trust as to C.'s share, had de jury of the owners of such land. volved upon the court the discretion which Where an act of parliament empowers certain they had by the memorandum reserved exclu- persons to deal with their own property or with sively to themselves as to the time of sale, de- property in a certain place or district, or defined clared C. entitled to one-third, and referred it by a certain description, and does not express to the Master to inquire whether it would be by words, or by necessary implication import, for the benefit of all parties that the land that the legislature intended to affect the rights should be sold. Dale v. Hamilton, 2 Phill. 266. of other persons in other property, courts of 2. Partnership in dealing with land.—Agree- | law do not construe mere general words in the ment made and signed by third persons.-A act as affecting the rights of strangers as to partnership agreement between A. and B. that property not within the description of that with they shall be jointly interested in a speculation which the act expressly purports to deal. for buying, inproving for sale, and selling Whether an act of parliament is to be deemed lands, may be proved without being evidenced a public act binding on all the Queen's by any writing signed by or with the authority subjects, or merely a private act, depends upon of the party to be charged therewith within the Statute of Frauds; and such an agreement being proved, A. or B. may establish his interest in land, the subject of the partnership, without such interest being evidenced by any such writing. Dale v. Hamilton, 5 Hare, 369. Cases cited in the judgment: Morphett v. Jones, 1 Swanst. 172; Mundy r. Jolliffe, 9 Sim. 413; HEIR. 1 W. 4, c. 47.-An estate was sold to a party to a suit for payment of the testator's debts, and which by the disclaimer of a trustee was vested in the heir pur auter vie, with legal remainder to the children of A. (who was living) as tenants in common. The purchase-money was in court. The case appeared to be within the 1 W. 4, c. 47, so that no effective convey ance could be made until the death of A. Held, that the purchase-money ought not to be distributed. Heming v. Archer, 9 Beav. 366. INCLOSURE ACT. the nature and substance of the case, and not upon the technical consideration whether the act does or does not contain a clause declaring that it shall be deemed a public act. Dawson v. Paver, 5 Hare, 415. Cases cited in the judgment: Sir F. Barrington's case, 8 Rep. 138, a.; Lucy v. Levington, 1 Ventris, 175; 2 Dwarris, 630; Stead v. Carey, 1 M. G. & S. 496. INFANT. Custody under 2 & 3 Vict. c. 54.-Order under the stat. 2 & 3 Vict. c. 54, that an infant daughter should be delivered out of the custody of the father into that of the mother. Is it not necessary, in order to enable the mother to apply under this act for the custody of her child, that she should have obtained or be entitled to obtain a divorce a mensa et thoro. Bartlett, exparte, 2 Coll. 661. INFANT TRUSTEE. ordered to convey real estate sold for payment INSOLVENT DEBTORS' ACT. 1 & 2 Vict. c. 110, s. 61.-- Misnomer.-JudgMr. H. under a warrant of attorney. ment. A judgment was entered up, &c. against In the judgment, warrant of attorney, &c., he was named W. H., his proper name being W. B. H.: Held, that the judgment was valid. Power of commissioners.—Public or private act.-Injunction.-Damage to watercourse or drain.-An act of parliament empowering commissioners to inclose the common lands in a certain township, reciting the titles of certain landowners, and that it would be greatly for the advantage of the proprietors of the common lands that the same should be divided and inA judgment was obtained against a party closed, enacted that it should be lawful for the under a warrant of attorney. He afterwards commissioners to set out and make such took the benefit of the Insolvent Debtors' Act: ditches, watercourses, and bridges, of such Held, that the judgment creditor was a necesextent and form, in such situations as they sary party to the conveyance of the insolvent's should deem necessary in the lands to be in- real estate to a purchaser, notwithstanding the closed; and also to enlarge, cleanse, or alter 1 & 2 Vict. c. 110, s. 61. Hotham v. Somerthe course of, and improve any the existing ville, 9 Beav. 63. ditches, watercourses, or bridges, as well in and on the same lands, as also in any ancient JUDGMENT DEBT. Debtor and Creditor.-4. was entitled to an 152 Analytical Digest of Cases: Courts of Equity. annuity, which was secured by a covenant and c. 10, s. 18.-Tenant for life of estates decreed in a creditor's suit to be sold for payment of debts, is a trustee for the purchaser within the meaning of 1 W. 4, c. 60, s. 18. Re Milfield, 2 Phill. 254. by an assignment of leaseholds to her in trust to sell Held, that her interest under the deed might be made available under 1 & 2 Vict. c. 110, s. 13, for payment of a judgment debt due from her. Harris v. Davison, 15 Sim. 128. LANDS CLAUSES CONSOLIDATION ACT. Form of condition of bond.-The condition of a bond given by the railway company, under the 85th section of the 8 Vict. c. 18, on taking possession of land before the purchase money was ascertained, was "on demand to pay to the owner, or on demand to deposit in the bank the amount of such purchase money when determined:" Held, that the condition was bad as giving the party claiming to be owner the option of compelling payment, either to himself or into the bank, whatever the title might turn out, and an injunction was granted till a proper bond should be executed. Poynder v. Great Northern Railway, 2 Phill. 330. LIMITATIONS, STATUTE OF Case cited in the judgment: King v. Leach, 2 LUNATIC MORTGAGEE. Extra costs of reconveyance occasioned by lunacy.-The costs of proceedings under the 1 W. 4, c. 60, s. 3, for the purpose of obtaining a reconveyance of a mortgaged estate from a lunatic mortgagee, are to be borne by the lunatic's estate. In re Townsend, 2 Phill. 348. Case cited in the judgment: Exparte Richards 1 J. & W. 264. RAILWAYS. essence of a transaction.-A railway company Shares.-Option to purchase.-Time of the having resolved on the 25th July to create a certain number of new shares, gave at the same time an option to every registered proprietor to take a certain number of those shares, provided he declared such option on or before the 10th August following. One of the registered proprietors, who was resident at Naples, was not apprized of the resolutions until the 12th August. But on that day he wrote to the secretary to the company declaring his option to take his proportion of the new shares. Held, that the time fixed by the resolutions was final, and consequently that the plaintiff's declaration was too late. Pearson v. London and Croydon Railway Company, 14 Sim. 541. 1. Deed poll. Assignment. Equitable charge.-Expectant legacy.—In 1816, A. mortgaged an estate to B., and covenanted to pay the mortgage money. In July 1817, A., and B. as his surety, conveyed the property to C., on trust to sell, and pay first a debt from A. to C., which A. and B. also covenanted to pay; and secondly, to pay B.'s debts. In August following, A. executed to B. an equitable charge other property. In 1834, C. sold the estate and applied the produce in part payment of B.'s demand. In 1842, a bill was filed by B. against A. to realize the equitable charge: 1 & 2 Vict. c. 110, s. 18.- Costs.-The Held, that until the trust of the deed of July general rule that a suit cannot be revived for 1817 was exhausted in 1834, the covenant in costs remains in force, notwithstanding the the deed of 1816 subsisted wholly unaffected 1 & 2 Vict. c. 110, s. 18, gives the effect of by time; that the debt and the personal remedy to recover it subsisted at the time the bill was filed, and that the equitable charge was therefore then operative. A deed poll, in the form of a power of attorney, held in equity to amount to an assignment or to a covenant to assign. Effect given to an equitable charge for valuable consideration upon expectant legacies. Bennett v. Cooper, 9 Beav. 252. 2. Mortgage.-Tenant in common..-Issues.The personal representative of a deceased tenant for life of a mortgaged estate is not a necessary party to a bill by the mortgagee against the remainder-man, although the bill pray payment of an arrear of interest which accrued during his lifetime. Where a mortgagee is also tenant for life of the mortgaged estate, the Statute of Limitations does not begin to run against the mortgage title until his death, and the same applies where the mortgagee is a tenant in common with others of the mortgaged estate. Form of issues directed in a foreclosure suit, to ascertain whether a mortgage deed, 45 years old, had ever subsisted as a security, and if so, whether it had been satisfied. Wynne v. Styan, 2 Phill. 303. REVIVOR OF SUIT. judgments to decrees and orders of courts of equity. Andrews v. Lockwood, 15 Sim. 153. Case cited in the judgment: Jenour v. Jenour, 10 Ves. 562; Jupp v. Geering, 5 Madd. 375. TENANT IN COMMON. Liability to account to co-tenant.-Stat. 4 Anne, c. 16.-Whether one tenant in common of a farm, who has alone occupied and culti vated it, is liable, independently of contract, to account with his co-tenant for a moiety of the profits, quære? An executor who had been tenant in common with his testator of a farm which the latter had alone cultivated, claiming to be a creditor of the estate for a moiety of the profits, the court directed an action to be brought to try the right. Henderson v. Eason, 2 Phill. 308. Case cited in the judgment: Wheeler v. Horne, Willes, 208. And see Frauds, Statute of, 2. TRUST. See Corporation; Frauds, Statute of, 1; Infant Trustee; Lunatic Trustee. TRUSTEE, NEW. Appointment on petition. -1 W. 4, c. 60, s. 22.-The court may appoint a new trustee under 1 W. 4, c. 60, s. 22, although the instrument creating the trust contains a power to Decree of sale of real estate. Stat. 1 W. 4, appoint new trustees. Re Foxhall, 2 Phill, 281. LUNATIC TRUSTEE. |