Company-Winding-up-Change of solicitor by official liquidator V. C. MALINS' COURT. R POTTER'S TRUST Will-Construction-"Nephews and nieces" V. C. STUART'S COURT. Will-Construction-Gift to a class OVEREND, GURNEY, AND COMPANY (LIMITED) v. GURNEY AND OTHERS Denarrer-Bill by company against its directors...... 649 649 632 654 656 Poor-rate-Occupation by one of the County Constabulary 658 EVANS (Administrator) e. BIGNOLD Life assurance policy-Insuring the life of another............ 65 COURT OF COMMON PLEAS. To Readers and Correspondents. J. B. The books which at first were the text-books of the Irish Church question, seem now somewhat out of date. The discussion has got past the stage at which books are of much value; and you had better study carefully the debates in both Houses upon the Suspensory Bill of last year, and the measure brought forward this session. There is, however, a useful little pamphlet in defence of the Church-"Facts Relating to the Present State of the Church in Ireland," by Dr. A. T. Lee (published by Rivingtons); while the writings of Dr. Maziere Brady are, so far as we know, the best on the other side. All anonymous communications are invariably rejected. THE Law and the Lawyers. THE state of the Nisi Prius business is positively 654 alarming. In the three courts in Middlesex the aggregate number of causes at the commencement of the after term sittings was no less than 395. Of these upwards of 200 are marked to be tried by special juries. Now, if all the eighteen Judges had attacked this mass of business, each would have had twenty-two cases to get through in the allotted fourteen days. As it is there are but six of them actually trying causes, which gives each one an average of sixty-six to try, and in the Queen's Bench the disposal of the first cause, which is going on at the time we write, has already absorbed four days. Therefore, taking the above average, the learned judge has sixty-five causes to try in the nine following days. If he disposes of a dozen it is as much as he can do, withdrawals and settlements being put aside, and it is ter672 rible to contemplate what will happen next November when the arrears are augmented by 663 ... 666 The great waste of judicial power is in the Exchequer Chamber. That court has been sitting during the past week, taking away six judges from the Nisi Prius courts. We say taking them away, but if they were available it is difficult to see where they could sit. If they were available, perhaps some attempt might be made to accommodate them. The first step, therefore, is to release them from their present appellate duties. That this must soon be done is obvious. It is far more important to the Profession that causes should be tried with dispatch than that there should be an intermediate court of appeal. INSTEAD of committing to the Election Judges the business of bankruptcy and pensioning off the present commissioners, as was proposed by the Bill now in committee, the ATTORNEYGENERAL has yielded to the general feeling of the House, that having so able and experienced a bankruptcy lawyer as Mr. Commissioner 148 BACON, it would be a waste of judicial power to 148 banish him and put into his place a Judge, or, rather, one of those Judges, altogether unlearned in bankruptcy law. The amended Bill provides that the first Judge in bankruptcy is to be taken 148 from the present commissioners, with the full understanding that Mr. BACON is to be preferred. The new Judge is to take rank with the other 149 Judges of the Superior Courts. 148 148 148 Impossible Assurance Companies English and Colonial Law SAYINGS AND DOINGS OF THE COURTS ESTATE AND INVESTMENT JOURNAL: Stock and Share Markets Public Companies LEGISLATION AND JURISPRUDENCE : House of Commons Notes of New Decisions.. Court of Common Pleas Creditors under Estates in Chancery Creditors under 22 & 23 Vict. c. 35 149 Unclaimed Stock and Dividends in the Bank of England 149 149 149 150 150 149 IT has been remarked both in and out of the House, that during the present session the ATTORNEY-GENERAL has risen as much above the 150 level of his former estimation as the SOLICITOR150 GENERAL has fallen below it. Sir ROBERT COLLIER has won golden opinions from both sides 150 of the House. Sir JOHN COLERIDGE has lost them in the same proportion. The explanation of this unanticipated result of the Ithuriel spear of office is, that official duties do not de153 mand oratorical skill so much as debating power, 152 readiness of reply, and tact. 150 150 151 152 151 The Nineteenth Volume of the LAW TIMES REPORTS is now complete, and may be uniformly and strongly bound at the LAW TIMES Office, price 48. 6d. THE jury system does not appear to work very well in the County Courts. On the 4th inst., two cases were heard in the Chester County Court. In the one case a verdict for 10l. was given in an action for false imprisonment, where the Judge thought that a guinea to a charity would have been sufficient. On a new trial being asked for, it turned out that the plaintiff's brother-in-law had been on the jury. In the other case, which involved the construction of a will, the jury were unable to agree, and the explanation given by the foreman was that one of the principal executors had been sitting with them, and would not submit to the view taken by his fellow jurymen. The parties, however, are alone to blame, as there is the same power of challenge in the County Courts as in the Superior Courts (9 & 10 Vict. c. 95, s. 73). Ar a meeting of the Board of Works for the Strand District, held on Wednesday evening last, at the Board Room, Tavistock-street, Covent-garden, it was moved by Mr. W. J. FRASER, seconded by Mr. J. JONES, and carried nem. con., that a petition be presented to the House of Commons by the board in favour of erecting the New Law Courts and Offices of Justice on the Carey-street site. A GRIEVANCE. MR. TAYLOR, who is carefully cultivating the character of grievance-monger and constituting himself the critic of Magistrates' Courts in general, has again met with a well deserved rebuke in the House of Commons. He preferred a complaint against the EARL of RADNOR and a Bench of seven Magistrates at Salisbury, for having fined two young women 20s. each for stealing what he called a handful of greens from a field; and he added that the noble Earl and his colleagues had caused a reign of terror in the neighbourhood by their severity in this and other cases. What were the facts? They were stated by the HOME SECRETARY, amid the cheers of the House, which thus marked its disapprobation of the calumniator. There had been repeated robberies of the same kind; the farmers and the labourers who held allotments had night after night their cabbages stolen. A watch was set, and the prisoners, aided by a younger child, were caught in the act of stealing them. Instead of a handful only of greens, the quantity taken exceeded one hundredweight, and filled two sacks, from the size and weight of which it was manifest that the purpose of the thieves was to have hidden them until their parents, who had set them to the work, could remove the plunder from its hiding place. The offence had been so often repeated that it was necessary to make an example; therefore, they dismissed the youngest of the party, and convicted the two eldest, who were of an age to know perfectly that they were committing a crime. The law, not the magistrate, inflicts imprisonment for nonpayment of a penalty. The fine in this case was designed to reach the parents, and the Bench were unanimous in their judgment. Thus explained, there is no person who will not say that the sentence erred in being too lenient rather than too severe. The cottager is as much entitled to the protection of his cabbages from thieves as is Mr TAYLOR to the protection of his watch or spoons. The necessity for the exposure of vegetables where they cannot be guarded night and day is a reason for punishing the plunder of them with greater, not with less, severity. his garden with walls; the poor man must be content with a hedge or a rude paling; but is he, therefore, to have no redress against thieves who leap the fence to carry off his cabbages? But Mr. TAYLOR cares nothing for this, so that he can find in it a text for attacking a magistrate; and, however reckless of truth are his comHe knows that plaints his purpose is served. to one who reads the answer, a hundred will read the accusation, and that if he but throws dirt enough some of it will stick. Probably he forgets that he soils his own hands in the process. The rich man can surround LIABILITIES OF RAILWAYS. THE limits of liability of railway companies as carriers of passengers have been very elaborately and accurately reviewed and defined by the Exchequer Chamber, in the case of Redhead v. The Midland Railway Company, very fully reported in the last number of the LAW TIMES Reports (20 L. T. Rep. N. S. 628.) The result is lucidly stated by the reporter in the head-note, and it is important alike to the public and to the companies that the real nature of their responsibility should be clearly understood, which certainly has not been the case hitherto. It is now distinctly laid down by the Judges that no contract either of general or limited warranty of safe conveyance is undertaken by a carrier of passengers. The contract and obligation is only to take due care, including in that term the use of skill and foresight; and negligence alone is a breach of this contract. "Due care means, however, a high degree of care, and throws upon carriers the duty of exercising all possible vigilance to see that whatever is required for the safe conveyance of their passengers is provided and kept in proper order and repair. But this duty will not make carriers responsible for injuries to passengers arising from a latent defect in the machinery they are obliged to use, and which no human skill or care could have either prevented or detected. It was further intimated, but not expressly decided, that even in the case of common carriers of goods, there is no warranty on the part of the carrier that his carriages are roadworthy. DEFENDANTS OUT OF THE JURIS- Ir may, perhaps, be in the recollection of our readers that in 1868 a case (Allhusen and another v. Melgarejo) came before the Court of Queen's Bench, in which the Court decided that unless the whole of a cause of action for which leave was sought to proceed against a foreigner residing out of the jurisdiction arose within the jurisdiction, leave could not be given to proceed against him under sect. 19 of the Common Law Procedure Act 1852. The case is reported very shortly in our reports (18 L. T. Rep. N. S. 323) but more fully in 37 L. J. 169, Q. B. The facts were that both the plaintiffs and the defendant carried on business at Newcastle-onTyne, but that the defendant resided in Spain. In January 1860, a contract was made between the plaintiffs and the defendant for the delivery at Newcastle to the plaintiffs of a quantity of manganese during certain months of the year 1866. A further contract was subsequently made in Spain for extending the contract to a further supply, and the defendant having made default in delivering a portion of the manganese, the plaintiffs brought their action, and issued a writ in pursuance of the section cited above. The defendant did not appear, and a summons REMOVAL OF NUISANCES. A RECENT decision has surrounded with more perplexity than ever the administration of this most perplexing law. In the case of The Guardians of the Hendon Union v. Bowles, 20 L. T. Rep. N. S. 609, the facts may be stated briefly thus: A large number of houses drained into a covered drain, the contents of which made their exit on the land of A., so near to the highway as to become a nuisance. The owners of the houses having a right so to drain, A. had no power to prevent them. The Board of Health applied to the justices for an order upon the owners and occupiers of the houses to remove the nuisance thus produced. It was proved that no nuisance existed upon the premises of the defendants; their drain was properly sealed, nor did its contents in any manner cause a nuisance, until they were discharged into the open ditch in the field of A. The justices were of opinion that, inasmuch as defendants, they had no power to make an order no nuisance was found on the premises of the upon them to remove what did not exist there, and that they could not order them to remove a nuisance upon the premises of another person, into which they had no right of entry, and where to touch even the sewage would be a trespass on their part. The justices were further of opinion that the order must be made, if at all, upon the person on whose premises the nuisance is found; that it was his duty to remove it, either by prohibiting the parties draining into his field from so doing, if JUDGES. WE mentioned in a leading paragraph last week that a deputation of County Court judges had waited upon the CHANCELLOR of the EXCHEQUER to bring before him their claims in connection Their principal object is to obtain an augmentamore particularly with the new Bankruptcy Bill, tion of their salaries and, as a collateral matter of equal importance, an augmentation of retiring pensions. No excuse, we apprehend, is necessary for our frequent recurrence to this question, inasmuch as the jurisdiction of the County Courts is in a transition state, and it would be most unwise that all the machinery should be altered and enlarged whilst the heads of the system remain advisedly, and not only with reference to the unprogressive. We use the word unprogressive To them an increase is due as a matter of bare, pecuniary remuneration of the present judges. which is in circulation, "Under the original naked justice. As stated in a memorandum County Court Act (1846), the judges were at first remunerated by fees according to the number of plaints, amounting, in some cases, to of cases in all County Courts is now more than more than 20007. per annum ; and, as the number doubled, the result would have been that in some circuits the remuneration upon that principle The judges were also at liberty to practise at the would now have exceeded 4000l. per annum. Bar, and, of course, to act as arbitrators." The work has increased; the privileges are reduced; yet a salary is given in proportion to the state of things existing in 1846. But the heads of the system will remain unprogressive in respect of judicial capacity so long as remuneration is stinted. We should not was taken out before the Master by the plaintiffs they had no right so to do; or, if they had such desire to detract in the least degree from the for leave to proceed in the action. This sum mons was dismissed, and Baron Martin, on appeal, confirmed the decision. The plaintiffs went to the court, when the decision of Baron Martin was upheld, Mr. Justice Blackburn saying, "The whole principle of our decision may be summed up by saying that a cause of action arising within the jurisdiction means that all things constituting the cause of action arose within the jurisdiction." We now learn that the plaintiffs were advised to commence proceedings in the Court of Common Pleas. They accordingly did so, and Mr. Justice Willes made the order which had been refused by the Master, Mr. Baron Martin, and the Court of Queen's Bench. On granting the order, Mr. Justice Willes made the following notes:-"I make this order according to the practice followed since the Act passed, and according to the construction of the Act which I have reason to believe was intended. The cases affecting the jurisdiction of the inferior courts are, I think, quite inapplicable. The Superior Courts had jurisdiction in such a case before this Act by proceedings in outlawry. They have such jurisdiction now on the subject matter confessedly. If the defendant chooses to raise the question, he can do so by motion, or perhaps by plea in abatement. I do not feel myself at liberty to depart from the usual prac tice without a decision of the court in which the process is, viz., Common Pleas." It is important that the existence of this construction of the Act should be known to the Profession, and, to show the practical benefit, which has resulted, we may state that the plaintiffs have by proceedings under Mr. Justice Willes's order, obtained the certificate of a Master of the Common Pleas entitling them to judgment for 5700l. as damages for the breach of contract. Had the decision of the Court of Queen's Bench prevailed, it is obvious that it would have been a direct encouragement of fraud. For example, either of the class of persons contemplated by sects. 18 and 19 of the Act of 1852 might enter into a contract abroad to deliver goods to the other parties to the contract in this country, and subsequently, finding that the market had gone up, refuse to complete the contract except at the market price, and there would be no remedy because the whole cause of action had right, then to prevent the nuisance by carrying the offensive matter through his land by a covered drain. It was also the opinion of the justices that, where a great number of houses drain into a common sewer, it would be impossible for them to ascertain by which of those houses a nuisance at the outflow of that sewer was caused. Against this decision the Board of Health appealed, all parties having concurred in a desire that a point of so much importance should be determined by a Superior Court. With this view, the case was prepared that is set out in the report. Mr. Serjt. Cox was the chairman of the justices by whom it was decided, and the case was settled by him and the parties with the express purpose of procuring an explicit decision of the court above upon the simple question, whether an order for the removal of a nuisance should be made upon the person on whose premises it actually exists, or upon the persons, if any, who produce the offensive matter, however distant they may be, and although their premises contain no nuisance whatever. But, notwithstanding the care thus taken by all the parties interested to secure, as they hoped, a decision that would guide them in the administration of the law of nuisances, it will be seen indeed, that alone for which its opinion was that the Court has avoided the principal question sought, and which, therefore, still remains to perplex alike the parish authorities and the justices. CAB LAW. reputation of any existing County Court Judge, but there do exist doubts whether all are qualified to deal with the singularly complicated adminis upon them. Undoubtedly they will well fulfil tration of the law now proposed to be imposed dictions, and they should be properly remutheir duties in the infancy of the new jurisdicnerated. But it is to be desired that the very highest order of legal capacity that can be secured should be placed upon the County Court bench. A very satisfactory result would follow the adoption of the suggestion of the deputation, namely, the increase of the salaries to 2000l. per annum. IMPOSSIBLE ASSURANCE COMPANIES. In an article on Mr. CAVE'S Bill dealing with the constitution of Assurance Companies, the Pall Mall Gazette sketches out what, according to its own notions, an Assurance Company ought to be. It is not surprising that this journal, which, in a measure, has led a newspaper crusade against the commercial immorality of the present day, should err on the side of honesty and good faith. But an error of this kind is no less an error, and, therefore, renders almost valueless any observations which may be advanced having that error as their foundation. It must be universally admitted that the failure of insurance companies has been a por tentous feature in commercial life of late. As remarked by our contemporary. "The Albert Company now represents twenty extinct companies. The Eagle has purchased the interests IN Cave v. Storey, 20 L. T. Rep. N. S. 618, the and business of nineteen others, and the EuroCourt of Exchequer decided that a railway-pean represents no fewer than thirty-three comstation is not a public place within the provi- panies which, unable any longer to support sions of the Hackney Carriage Act, and con- themselves, their liabilities, and their evil prosequently that a cab there is not bound by the spects, sold themselves as well as they could, provision of the statute which requires the and gave up the ghost." driver, under a penalty, to take any passenger who requires the use of it. It is a familiar trick with Cabby not to see certain customers when there is a chance of selection, having a decided preference for a party of three or four, or for a stranger visiting London. According to this decision of the Court of Exchequer, at a railway station he is privileged to do this, and it cannot be doubted that he will make good use of the privilege of refusing to take a fare whom he considers unprofitable. A railway-station should This simply proves that insurance companies, like other companies, have been got up to serve the purposes of promoters; the number so got up was far larger than the public required, and the consequence has been a ruinous absorption into the few stable societies. The question is, whether this justifies our contemporary in going to that extreme to which it does go by demanding that before a company is tolerated as a public company at all it shall demonstrate impossible things, and that, when tolerated, it shall carry on business in a way which cannot fail to work a loss instead of a profit. The following is the remarkable proposition of the Gazette:-"We have," it says, "always contended that no company ought to be allowed to take premiums and commence life assurance business until it could be certified that the capital was bona fide and fully paid up, that the directors and manager were not men of straw, that whenever a new risk is undertaken a sum should be immediately set aside sufficient to pay the policy at maturity, and that a clear and intelligible account of all such matters should be open to the inspection of all concerned, and should be certified to by a quaiified State official." Now, in the first place, how is it to be proved that the directors and managers are not men of straw? Are directors and managers to be compelled to open their bankers' accounts to inspection? And if they did, what would those accounts prove? Simply that at the date of the inspection so much stood to his credit. That evidence, of course, would be worthless. Then as to immediately setting aside sufficient to pay the policy at maturity, it is the business of an actuary to ascertain how little capital can be kept to meet the contingencies in order to free the remainder for profitable investment. If, immediately a policy were granted say for 1000, a like sum was invested in Consols to meet the liability at maturity, the small interest payable on those investments would render it impossible to carry on the business at a profit. The short conclusion is that the official reguLation of companies is a most difficult matter, in fact almost an impossibility. The public are in a great measure to blame for supporting young and doubtful institutions, but dishonest promoters are at the root of the evil. Until, therefore, our contemporary can invent a process for converting rogues into honest men, and giving the public sense and discretion, we fear matters will remain pretty much as they are. Will you allow me space for a few remarks on this case, reported in 19 L. T. Rep. N. S. 770. The decision is a most important one, and if upheld, must have a most serious effect upon the interests of British subjects who may have, or may have had, dealings with our colonies.' It establishes the power of a Colonial Legislature "to make a law altering altogether the character of a bygone Act" (Lusн, J., p. 776), and makes such a law binding and effective upon parties who have withdrawn themselves from colonial jurisdiction, and who base their claims upon English law, and are pursuing their remedies in English courts of justice. It has always appeared to me (and I have made the subject of colonial law an important part of my professional studies) that nothing short of an imperial Act could effect this result. And after attentively considering the judgment and arguments in this case, I am compelled to admit myself in the position of the man vinced against his will." 66 con The principle of the decision, so far as I can rather, is that colonists must be considered as -foreigners" whose rights are altogether to be regulated by what is equivalent to "foreign" LAW. I think I am justified in thus stating the ratio decidendi. Counsel, in arguing on behalf of the paintiff, wished to consider the colonial legisature on the same footing as that of any foreign country," but Mr. Justice LUSH (p. 776) said that, in order to make the analogy complete, the parties must also be considered to be foreigners, "instead of two British subjects." And, in delivering judgment, Lord Chief Justice COCKBURN says, referring to colonial legislatures, "the same comity which obtains among nations should be extended to them by the tribunals of this country when their law conflicts with ours in respect of acts done within he ambit of their jurisdiction." This consequence would seem to flow from the decisions--once a colonist, always a colonist always subject to colonial law with respect to what you have done, or the rights you have acquired, founded on acts done "within the COURTS. [CONTRIBUTED BY THE REPORTERS OF THE SEVERAL COURTS.] ambit" of colonial jurisdiction. If the colonial SAYINGS AND DOINGS OF THE Legislature can follow you and declare that to have been lawful which was unlawful at the time it was done, is there any reason why should be incapable of declaring the conversethat to have been unlawful which was lawful at the time? If it can take away a right of action, it can grant one; and colonists who have long since returned to the domicile of the mother country may yet find their interests materially affected by the ex post facto legislation of the same character as the Jamaica Act of Indemnity. I certainly never had taken that view of the position of a colonist. The powers of a colonial legislature are derived either from charter or from an Act of the Imperial Parliament. They are subordinate and limited by the terms of such charter or Act of Parliament, and are only valid so far as they keep within the prescribed limits. I conceived, therefore, that a colonist, though living within the local jurisdiction of a colonial legislature, had, as a British subject, certain rights and privileges, for the enforcement of which he could rely upon the imperial law, as well in respect of the Acts of a colonial legislature as in respect of the acts of an individual. Where there has been no modification of imperial law by the colonial legislature, the imperial law prevails; and, in becoming a colonist, the rights and privileges of a British subject are prejudiced so far only as they may have been or may be affected by that colonial legislation to which he voluntarily and for the time submits himself. In the present case, assuming both the parties to have been colonists, one breaks the law to the injury of the other, and the right to a remedy, thereupon, vests in the plaintiff-in this caseby virtue of the paramount authority of the law of England; not by virtue of any colonial law, or right or privilege which he enjoyed as a colonist simply, but, by virtue of his right, to English law, which, as a subject, he carries with him in every part of the British dominions, liable only to restriction or modification by the Acts of colonial legislatures, to whose jurisdiction he chooses, for the time being, to submit himself. Lord Chief Justice COCKBURN says (p. 770), "There is no doubt that a cause of action vests by the English law when a man sustains a wrong in a colony." And assuming the colonial legislature had unqualified power within their jurisdiction, that they might have originally made the act of the defendant lawful, might have closed the courts of the colony to the plaintiff after the commission of the alleged wrong, and have deprived him of his right to damages there by other means, it is difficult to conceive on what authority they could claim to go further, and to purfrom the colonial jurisdiction. sue a British subject who has withdrawn entirely because at the time the plaintiff's right first Is it simply accrued the parties were living in the colony? the circumstances out of which the plaintiff's or is it, as appears from the judgment, because right arose occurred within the ambit of colonial jurisdiction, and might have been (but were not Neither of these grounds appear to me satisat the time) affected by colonial legislation? factory, but I am unable to suggest any other from a perusal of the report. I observe that a point with which we, as South Australians, are familiar, whether such an Act is authorised by the charter as one "for the peace, welfare, and good government of the colony," does not appear to have been raised during the argument. The question of "repug nancy" was mooted, but was summarily disposed of by reference to the recent imperial Act (28 & 29 Vict. c. 63, s. 3), which was the result of action taken in this colony some few years back. Another point seems hardly to have been argued, which may have some bearing upon this case-to what extent a governor, acting as such, can be affected by colonial law. His office and duties are regulated by imperial law. I am glad to hear that an appeal is pending. I trust the result will be to show that a colonist in the position of the plaintiff is not in the posior was entitled by foreign law only, and that he tion of a foreigner claiming rights to which he is does not by becoming a colonist deliver up entirely, and without remedy or power of recall, his rights and privileges as a British subject to the control of a colonial legislature. HOUSE OF LORDS. On Friday last their Lordships (the Lord Chancellor, Lords Chelmsford, Westbury, Colonsay, and Cairns) gave judgment in the case of Partington v. The Attorney-General, in error from the Exchequer Chamber. The facts were these: In 1819 a widow lady named Shard died intestate, leaving personal assets to a considerable amount. The Crown, by Mr. Maule the then solicitor to the Treasury, took out administration to the estate, and the sum received by Mr. Maule and his successor on that account amounted to 23.8841. In 1823 Isabel Cook, the wife of Ellis Cook, both she and her husband being domiciled in the United States, applied to the Crown, claiming to be next of kin to Mrs. Shard. Her claim was not recognised, and she died in 1825 without taking any steps to establish her claim. In 1830, Ellis Cook died intestate without having taken posses. sion of, or any steps to recover, the money in the hands of Mr. Maule, and without having adminis tered to his wife. After the death of their father, the children of Mr. and Mrs. Cook applied to Mr. Partington (the present appellant) a solicitor in London, to take proceedings on their behalf, and a personal representative to Isabel Cook's estate being necessary, James Cook, one of the children, executed a power of attorney authorising Partington to take out administration to the estates of both Isabel and Ellis Cook. Grants of administration to both these estates were accord. ingly made to Partington on July 23, 1855, by the Prerogative Court of Canterbury. By these authority was given to administer "the goods, chattels and credits which, whilst living, and at the time of death, did any way belong to the estate." A suit was instituted in the Court of (31 L. T. Rep. 7; 27 L. J. 505, Ch.), and ultimately, Chancery, under the title of Partington v. Reynolds on June 26 1858, Vice-Chancellor Kindersley made an order, under which the above sum of 23,8841. with 34,1241. for interest thereon at 4 per cent., was paid to Partington, as the personal repre sentative of Isabel Cook. Partington paid the money over to James Cook, in America, who gave a release for the same both in regard to his mother's estate and also as administrator in America of his father, to whom he had there taken out administration. The Commissioners of Inland Revenue claimed that the stamp duty on the letters of administration should be paid of the administration in 1855; and also that the upon the entire value of the property at the date letters of administration for the estate of Ellis Cook should be stamped at the same rate. This claim the appellant disputed, and two questions were thereby raised: (1.) Whether the stamp duty on letters of administration was to be constituted the property at the time of the calculated on the principal moneys only, which death, or also on the accumulation of interest between the death and grant of administrajudgment for the Crown, and that judgment tion? On this point the Exchequer gave was affirmed in the Exchequer Chamber. (See letters of administration having been taken out to 6 L. T. Rep. N. S. 900; 10 Id. 751.) (2.) Whether both Isabel and Ellis Cook, stamp duty was pay able on both, and at the same rate? This was below. Their Lordships now affirmed the judgChamber, reversing the judgment of the court decided in favour of the Crown by the Exchequer ment of the Exchequer Chamber for the Crown on both the above questions, and decided, first, that duty was payable on the interest as well as on the principal, on the construction of 58 Geo. 3, c. 184, sched 3, taken in connection with sect. 38 of the Act, and on the authority of Doe d. Richards v. Evans. 10 Q. B. 476. Second, that the same duty was payable on each administration, because there were, in fact, two grants of administration, and the duty must be paid on each, and because there were two devolutions of the beneficial ownership, and, therefore, two grants were necessary to complete the title of the claimant. On the same day judgment was given in the case of Singleton (or Scott) v. Lord Napier. The Ordinary and of the First Division of the Court appeal was against interlocutors of the Lord of Session, pronounced in an action of declaration at the suit of Mr. John Scott, the late husband of the appellant. The question at issue related to the right of exclusive property in the two most important lochs in the south of Scotland, viz., the lochs of St. Mary's Kirk of the Lochs, in the of Buccleugh, Lord Napier, Mr. Murray, and Mr. county of Selkirk. The lochs are surrounded by lands belonging to four proprietors, viz., the Duke property with the other three riparian proprietors. Scott. Mr. Scott claimed a joint right and common Of these, Lord Napier alone opposed Mr. Scott's claim. Lord Napier contended that he had an exclusive right to the whole of the lochs and their solum, and that he was entitled to drain them and ROLLS COURT. Several cases worthy of record have occurred to use and dispose of the area of land which they during the past week. Lees v. Hibbert was a suit ledge of the source from whence it came, was a founded on an original grant of James VI. of instituted before the passing of the Partition Act dered him liable to repay the amount under cover as being his own property. This plea he Scotland, in 1607, and also on prescriptive possession, quâ dominus. The Court of Session (Lord Deas and Lord Ardmillan; Lord Curriehill dissentiente) decided in favour of the defender, the present respondent. That judgment was now reversed by the House of Lords (Lord Chancellor, Lords Chelmsford, Colonsay, and Cairns). Their Lordships considered that Lord Napier's title was insufficient to give him an exclusive right to the property in these lochs, because the grant of 1607 was a grant ultra vires of the Crown, and never formed part of Lord Napier's title, and because Lord Napier had failed to prove the exclusive user and possession of the lochs. Judgment was therefore given for the appellant, with costs in the court below. the Oldham, known as the New Earth Estate, two un1868, to obtain the partition of an estate at divided fifths of which belonged to the plaintiffs as joint tenants, and the remaining three-fifths to two of the defendants, who were trustees thereof to the suit. Part of the surface of the estate had for other persons, who were also made defendants been let on long leases for building purposes, coal and minerals underneath being reserved. The plaintiffs now asked that a sale might be directed under the 3rd section of the Partition Act 1868, which empowers the court on the request of any of the parties interested to direct a sale of the property instead of a division, where by reason of the nature of the property, or of the number of the parties interested therein, &c., or of any other The Shedden case still " drags its slow length." distribution of the proceeds would be more circumstance, a sale of the property and a Miss Shedden was speaking the whole of Mon- beneficial for the parties interested than a day and Tuesday. On Thursday week she and division of the property among them. They also her father appeared at the bar of the House, relied on the 5th section of the Act, which enacts and the latter said that his daughter was too that, if any party interested requests the court to ill and weak to continue her address. The Lord direct a sale instead of a division, the court may, Chancellor asked what was to be done where unless the other parties interested or some of a lady insisted on pleading her own cause, occupied thirteen or fourteen days in argument, requesting a sale, direct a sale. The plaintiff's them undertake to purchase the share of the party when three or four would have been amply sufficient, and then complained that much speak-dants, or to consent to the property being put up were willing to purchase the shares of the defening prevented her from proceeding? Miss Shedden for sale by auction with a good price reserved upon endeavoured to continue her speech, but shortly swooned, and was carried out of the House. The it, as they wished to purchase it in order to get House then adjourned till Friday, when, at the the coal. The defendants objected to the sale at conclusion of the above judgments, Miss Shedden present, as the value of the surface for building again spoke till the end of the day. The Lord Chan- said that he was quite clear that the court had purposes was rapidly increasing. His Lordship cellor, when the House rose, said that their Lord- jurisdiction to direct a sale under the Act, and ships expected Miss Shedden to conclude her case suggested that there should be a direction for a on Monday, and on that day the Lord Chancellor sale at such time and in such manner as the parreminded her that it was the last day of her argu- ties should agree upon. After some discussion, ment, and urged her to avoid digressions. Monday it was arranged that the cause should stand was the seventeenth day of the hearing. The Lord Chancellor, however, yielded to Miss Shedden's to some arrangement among themselves. over to enable the parties interested to come solicitations that she might be allowed to continue her address, observing that Miss Shedden's digressions and repetitions, and her rhetorical amplifications of matters quite obvious and simple, had caused a most unparalleled lengthening of the case, to the great inconvenience of other suitors. His Lordship added that no counsel would have been allowed to conduct an argument in the way Miss Shedden persisted in adopting. On Tuesday Miss Shedden again spoke during the whole of the day, and at the end of the sitting applied to have the papers in the case handed over in support of the application to Lord Penzance for a new trial in the Divorce Court. The Lord Chancellor said that the papers were in custody of the House, and could not be given up for the purpose named, while the suit was pending before their Lordships. Miss Shedden's argument seemed on Thursday as far from a conclusion as ever. In future cases, where ladies appear in person, surely some modification of the use of the -clepsydra might be introduced with advantage. JUDICIAL COMMITTEE OF THE PRIVY The Judicial Committee commenced their sittings on Monday last, when the Master of the Rolls (Lord Romilly), Sir William Erle, Sir James Colvile, and Sir Joseph Napier were present. The list contains forty-eight causes, of which thirty are appeals from India, four from Victoria and New South Wales, and even from the Admiralty Court. The case of Sheppard v. Bennett, on appeal from the Arches Court, will be heard this day (June 19). No day is as yet fixed for the hearing of the case of the Bishop of Capetown v. The Bishop of Natal, on appeal from Natal. On Monday the Beta, on appeal from the Admiralty Court, was argued. A French sailor on board the brig Xiste, was injured in a collision between that vessel and the Beta, and thereupon instituted a suit in rem to obtain compensation. It was contended in the court below that the Admiralty Court had no jurisdiction, but Sir Robert Phillimore overruled that objection, and judgment was given for the petitioner. Mr. Clarkson appeared for the owners of the Beta (the appellants), and argued against the jurisdiction of the Admiralty Court.-The Judicial Committee, by Lord Romilly, said that the case of the Sylph, 17 L. T. Rep. N. S. 519, was conclusive on the point, and that the Admiralty Court had power to entertain an action in rem for personal injuries done by a ship, under the Admiralty Court Act 1861 (24 Vict. c. 10), s. 7, taken in connection with sect. 514 of the Merchant Shipping Act (17 & 18 Vict. c. 104). The remainder of Monday, and the whole of Tuesday and Wednesday, were occupied with arguments in the cases of the Karnak, the Great Pacific, the Lion, and the Maggie Leslie, and in each case the Committee reserved judgment. On Thursday there was no sitting. Re The Joint-Stock Company (Limited), Fyfe's case, was an application by Dr. Andrew Fyffe that his name might be removed from the list of contributories to the above company, on the ground that he had sold and transferred his shares before the winding-up of the company commenced. In Feb. 1866, Dr. Fyffe, who was then the holder of twenty shares in the company, sold them to one Strawbridge; the transfer was executed by both parties, and left for registration at the offices of the company on the 15th of the same month. It was not, however, registered, and the order for the winding-up of the company was soon afterwards made. Dr. Fyffe's name being on the register of shareholders at the date of the order for windingup, he received the usual notice that he would be settled on the list of contributories. In June 1866, he attended at the chambers of the Master of the Rolls and resisted having his name placed on the list of contributories, but did not procure the substitution of Strawbridge's name for his own. Strawbridge died in June, 1867, without his name having been substituted for that of Dr. Fyffe, and during the past month the latter received notice that his name would be settled on the final list of contributories. His Lordship said that Dr. Fyffe was unquestionably entitled at one time to have Strawbridge's name substituted for his own, but that he had lost his right by delay and laches. In June 1866 Dr. Fyffe knew that his name remained on the register of shareholders, and that it would consequently be placed on the list of contributories, unless he succeeded in having it removed. But he had allowed a year to elapse without taking any steps to have Straw bridge's name substituted for his own; and as Strawbridge was now dead, and had no legal personal representative, there was no name to substitute for Dr. Fyffe's. The case was a hard one, but it was caused by the applicant's own laches, and the summons must therefore be dismissed with costs. Re Mason's Hall Tavern Company (Limited), Orgill's case, was an application by the official liquidator of the above company that Mr. Orgill, formerly a director of the company, might be compelled, under the 165th section of the Companies' Act 1862, to repay a sum of 500l. which he had received under the following circumstances. The company was registered in 1866. Shortly before the registration of the company, its promoter, a Mr. Nokes, asked Orgill to become a director, to which he consented on condition that he should be provided with the necessary qualification, viz., fifty fully paid-up 101. shares. Nokes agreed to this, and paid up in full fifty 101. shares, for which Orgill had applied. The property for the acquisition of which the company was formed was purchased by the company for 19,000l. from Nokes, who had agreed to purchase it from the Masons Company for 9000l., making thus a gain of 10,0001. on the transaction. The 5001. paid for Orgill's qualifying shares came out of this sum, and it was urged on behalf of the official liquidator that the receipt of this money by Orgill, with know. breach of his trust as a director, and renthe 165th section of the Companies Act 1862, which provides that where, in the course of the Winding-up of a company under the Act, it appears that any past or present director, &c., has misof any misfeasance or breach of trust in relation to applied any moneys of the company, or been guilty the company, the court may, on the application of any liquidator, &c., examine into his conduct and compel him to repay any moneys so misapplied, or the company by way of compensation in respect to contribute such sums of money to the assets of of such misapplication, misfeasance, or breach of trust as the court thinks just. His Lordship was of opinion that no case had been made out for compelling Mr. Orgill to repay 5001., or any sum, under the 165th section. He had not, in his Lordship's opinion, received any of the company's money, or been guilty of any misfeasance or the promoter under the agreement that the neces sary qualification should be provided for him, and there was no evidence that he had anything to do the purchase-money. The whole transaction ap with the sale to the company, or with the fixing of bona fide and straightforward, and the summons peared to his Lordship to have been perfectly must therefore be dismissed with cost. breach of trust. He had received the 5001. from Maltby, who is the leaseholder, for a term of which Maltby v. Ware was a suit instituted by a Mr. there are still eleven years to run, of the Bird-inhand public-house, in High-street, Hampstead, against his neighbour the defendant, to restrain him from building a certain wall to such a height as to interfere with the access of light and air to a certain window in the plaintiff's public-house. wall of his house, which forms one of the walls of In June 1868 the defendant pulled down the outer tween the premises of the plaintiff and defendant, a narrow passage running from High-street beinto which passage the plaintiff's tap-room window looks. The defendant began to rebuild the wall, and built it to a much greater height than before, so as to interfere with the access of light and air to the plaintiff's tap-room' and thereby, as the plaintiff alleged, seriously to interfere with his business. The plaintiff alleged that since the wall had been completed many of his customers had, on account of the darkness of the room, refused to be served in it, and insisted on being served in the parlour, which had the effect of driving away the better class of his customers, who used to fre quent the parlour before. The plaintiff had ob tained an ex parte injunction, and a motion on the defendant's part to dissolve this injunction had in August 1868 been refused with costs. The cause now came on for hearing. His Lordship was clearly of opinion that the increased height of the wall had materially darkened the plaintiff's tap room. The defendant's case was that the plaintiff had acquiesced in the erection of the wall, and that his loss of light in one direction had been compensated by gain in another. Compensation was no real ground of defence; and it could not be said that the plaintiff had acquiesced in the wall being built, because he had assented on the defendant's representations that the loss of light would be compensated; and when he found out that these representations were incorrect, it could not be said that it was then too late for him to seek his remedy. The suit was not a frivolous one, as the plaintiff's lease had yet several years to run. The plaintiff was entitled to a mandatory injunetion with costs, under which the defendant would be compelled to reduce the wall to its original height. His Lordship, after remarking how hardly this decision would press on the defendant, whom he believed to have acted bona fide in the belief that he had obtained the plaintiff's consent to the heightening of the wall, suggested that the plaintiff should waive his strict right, and leave it to his Lordship to settle what compensation the defendant should pay to the plaintiff for the darkening of the tap-room, which course his Lordship was of opinion he had no jurisdiction to take without the consent of the parties. Some two weeks Re James Gray (a solicitor), the court was moved to suspend for a limited time the drawing up of the order, to afford Mr. Gray an opportunity of making reparation to his client, which he was earnestly desirous of doing. since his Lordship sentenced Mr. Gray to be sus pended from practising as an attorney or solicitor for ten years, on the ground of his having filed a bill for specific performance in the name of the assignee of a bankrupt without his knowledge, and also that he had allowed a client to make an affidavit the contents of which he knew to be false. His Lordship at that time intimated that that if reparation were made to the injured party, he would reconsider his decision. A short report of the case will be found in the LAW TIMES of May 29, p. 90. His Lordship now directed the drawing-up of the order to be deferred until after the last seal in the sittings after term; but if no reparation had been made by that time, the order should be drawn up. The Watford and Rickmansworth Railway Company v. the London and North-Western Railway Company, was a suit instituted for the purpose of obtaining the decision of the court as to the construction of an agreement entered into in June 1862 between the above companies, for the construction and working of a branch line from the Watford Station of the London and NorthWestern Railway to Rickmansworth. This agreement provided that all differences arising between the parties out of the subject matter of the agreement should be referred to arbitration. A dispute as to accounts having arisen between the parties, the defendant company proposed to refer the matter to arbitration; this the plaintiff company refused to do, on the ground that the accounts in question did not come under the agreement, but arose out of transactions between the parties subsequent to the date of the agreement, the arrangement as to which had never been reduced to writing, but had been made verbally between the officers of the two companies. The defendants, in resisting the taking of the accounts by the court, relied on the 2nd section of the Railway Companies' Arbitration Act 1859, which empowers railway companies, by writing under their common seals, to refer to arbitration "any then existing or future differences, questions, or other matters whatsoever in which they then are or thereafter shall be mutually interested;" and on the 26th section of that Act, which declares that full effect shall be given by all the Superior Courts of law and equity to all agreements, references, arbitrations, &c., in accordance with the Act. His Lordship, though he considered the accounts so complicated that they could not be taken by an arbitrator, nevertheless was of opinion that he could not, in the face of the objection raised by the defendants, decree an account. The words of the second section of the Act were very wide, and if the transactions as to which the accounts were sought to be taken did not arise immediately out of the agreement, the words "other matters,' in the second section, were sufficiently wide to include them so that, in his opinion, the jurisdiction of the court was excluded. The point was quite new to his Lordship; though it was quite settled that a reference to arbitration under the Commn Law Procedure Act did not take away its jurisdiction from a court of equity. He should dismiss the bill, but without costs, as the defendants had not sufficiently insisted on their objection to be allowed their costs; instead of answering the bill, they should have pleaded the agreement to refer to arbitration. If the defendants would agree to waive their objection, he would dispose of the matter in chambers, but if not. the bill must be dismissed, without costs, on the ground that it was covered by the arbitration clau-e. V. C. STUART'S COURT. The past week has produced the following cases worthy of notice. Sharp v. The Baron De St. Sauveur, in which the question was whether certain freehold and copyhold estates to which the late Baroness de St. Sauveur was entitled at the time of her death, passed under her will as realty or as personalty. The estates were, by a deed, dated the 10th March 1862, conveyed by the baron and his wife to trustees upon trust to sell, exchange, or make partition of them, and, in case of a sale, to pay one half of the purchase-money to a Mr. W. L. Loveday, and the other half to the baroness absolutely for her separate use, and until the sale the trustees were to pay the rents as the baroness should by deed or will appoint, and in default they were to be hers absolutely. The baroness by her will, dated in August 1862, bequeathed to her husband for life all her landed property, situate at Ealing, in the county of Middlesex. Now, as the baron was an alien he could not hold land in England, and if the Ealing property, which was subject to the trust for sale, but which had not been sold, was to be still considered as land, the bequest in favour of the husband could not take effect. Another question was whether the testatrix, by using the words "landed property" in her will, had or had not elected to treat the Ealing property as realty notwithstanding the trust in the deed and the rule in equity that what was directed to be done shall be considered as done in reference to the conversion of the property. The Vice-Chancellor, in giving judgment, said that apon the construction of the deed the property must be treated as personal estate, for if it were not so the manifest intention of the testatrix in favour of her husband would be defeated. The expression "landed property" in the will might be considered as equivalent to "all her estate and interest in land" at Ealing, and had those words been actually used by her they would have passed the purchase money or the right to receive the purchase-money of land subject to be sold. The baroness must be considered as having, by her his life. will, elected to treat her unsold land as personalty, and, therefore, there would be a declaration to that effect, and an order for a sale of the property and for payment of the income arising from a moiety of the proceeds to the baron during In Skidmore v. Bradford, which was a suit for the administration of the estate of a Mr. Jacob Bradford, a wholesale ironmonger at Manchester, the following question arose. Mr. Bradford had adopted a nephew, and brought him up to his business, and given him the management of one of his warehouses. In effecting the purchase of a warehouse shortly before his death, Mr. Bradford had directed his nephew's name to be entered in the contract as the purchaser, and after paying 1500l. on account, had taken the receipt in the nephew's name. Mr. Bradford had died suddenly, leaving the balance of 35001 unpaid, and the question was whether the nephew was entitled to be paid that sum out of the assets of Mr. Bradford's estate. The ViceChancellor said that if Edward Bradford, the nephew, had been a mere volunteer, there was no principle on which he could have come to this court to have the testator's act of bounty completed, and this claim admitted against his assets; but if, on the faith of the representations of the testator, he had involved himself in any liability or had incurred any obligation, he could not be considered a volunteer, and the testator's assets would be liable to make good the representation on the faith of which he had acted. In the present case it had been proved beyond all doubt that the real contracting party was Jacob Bradford, that in making the purchase his object was to benefit his nephew; that the nephew knew all the circumstances; that when the contract was prepared the testator desired his nephew's name to be inserted, and that in consequence of that insertion the nephaw lay under a legal obligation to pay the purchase-money. Having thus become liable to be sued and incurred the liability on the faith of the representations of the testator that he would give him the house, the case was entirely governed by Crosbie v. M'Donal, where the argument of Sir Samuel Romilly had been adopted by Lord Erskine in his judgment. Suppose a man, the frequent guest of another in the country, adjoining whose seat is a piece of ground that would add considerably to the beauty and enjoyment of the place, but an enormous price is asked; that the guest attached to the place desires his friend to contract for that piece of ground for him, and says he will pay for it, and the other contracts accordingly, and pays far beyond the value, would a court of equity permit that man to recede from his engagement? Would that not be considered as fraud in respect of the consideration-an engagement contracted at the request of another, into which, without that motive, the party contracting would not have entered ?" Lord Erskine said, "The Statute of Frauds had nothing to do with it, for this was not an engagement to answer for the debt of another, but upon the faith that he would deliver her from the consequences. The defendant in that case, who was a lady, undertook to bind herself. The principle of law upon these actions is that, though upon a mere voluntary promise an action does not lie, yet if one man binds himself to pay, and does pay money in consequence of an obligation undertaken by another, the one has money which in equity and conscience ought to be the money of the other; and that is not nudum pactum." Applying these principles to the present he considered that the assets of the testator were liable to make good the obligation which had been incurred by Mr. Edward Bradford, and that he was entitled to have the balance of the purchase-money paid out of his uncle's estate. case, a Sir Roger Charles Doughty Tichborne, Bart., v. Pyers Mostyn - Tichborne v. Tichborne, was motion that the time for retaining the bills filed in these causes might be extended to the last day of Easter Term 1870. It was stated that the evidence which is being taken under a commission issued by the Probate Court could not be completed sooner, the time fixed for the return of the commission being the 12th Oct. 1869. The ViceChancellor made the order. Tichborne v. Tichborne-Tichborne v. DeCastro, was a motion on behalf of the creditors of the late Lady Tichborne, for an order directing an account and payment of Lady Tichborne's debts, she having died intestate, and also for an account of her personal estate, or that a receiver might be appointed, ad litem, pending proceedings in the Probate Court. It appeared that the Probate Court had declined to appoint an administrator on the ground that as this court had appointed a receiver of the estate, there might be a conflict between the two officers in the discharge of their duties. The Vice-Chancellor said he thought the proper course for this court to take would be to give the parties leave, notwithstanding the appointment of a receiver, to apply to the Court of Probate as they might be advised. Ives v. The Shipley Local Board of Health, was a bill filed by contractors for an account of work done and moneys paid in respect of a reservoir. The Vice-Chancellor, in delivering judgment said that there were some peculiarities in this case which distinguished it from others of the same kind. The plaintiffs were employed by the defendants to construct a large reservoir according to the plaintiffs' specifications. The contract gave to the engineer the extensive and arbitrary powers usually given by such instruments, and it placed the contractor entirely under his control. The right to payment was made to depend on the certificate and award of the engineer. During the progress of the work the walls on the east and west sides of the reservoir, after being built to a certain height gave way. Great expense was occasioned to the plaintiffs in rebuilding these walls. They had been paid for the extra expense as to the east wall. But the more considerable expense for the west walls the engineer refused to include in a certificate, and the defendants refused to pay. The Vice-Chancellor then considered at some length, and said that there must be a decree declaring that the plaintiffs were entitled to be paid for the expense of taking down and rebuilding the west wall of the reservoir, and a decree for an account of what remained due to the plaintiffs in respect of the works; and in taking the account the plaintiffs were to be bound by all the certificates made prior to the filing of the bill, except so far as related to the taking down and rebuilding the west wall of the reservoir, but it must be declared that the plaintiffs were not bound by any admeasurement or certificates made after the filing of the original bill. The plaintiffs were entitled to the costs of the suit to be paid to them by the defendants up to and including the decree. Waterlow v. Sharp, Gardner v. Sharp, was a motion on behalf of the directors of the London, Chatham, and Dover Railway, to vary an order made by his Honour on the 7th May, by omitting from it words describing the Rev. Samuel Kettlewell and Mr. Cadman as representatives of the mortgagees of the general undertaking of the company. The object of the application was to prevent any mistake as to the parties to be joined in the proceedings. The Vice-Chancellor said the matter had better be referred to the Lords Justices, and declined to make any order. V. C. MALINS'S COURT. A few cases have occurred since our last notice which should be referred to. The first was Weeks v. Jackson, which came on upon a bill filed by a master mariner and part owner of a vessel called the Kestril, seeking to set aside an agreement and mortgage, and for delivering up of certain bills of exchange, on the ground that the defendants Jackson and Shepherd and one Strongman had joined to defraud the plaintiff. Jackson and Shepherd were joint managers of a marine insurance business, and they and Strongman, as it was alleged, negotiated for an agency for the sale in London by the plaintiff of the Preston Pans Brewery Company's beer, in respect of the purchase of which Shepherd procured a mortgage on the ship from Jackson (who, it was alleged, was his partner), and the plaintiff accepted certain bills, and executed a mortgage to Jackson at 101. per cent., the result being that Strongman became bankrupt, and the plaintiff lost his money, about 6007., the vessel being sold. The plaintiff's case was that he was in infirm health, incapable of transacting business, and was taken advantage of by the defendants. There was evidence on both sides, the case of the plaintiff being absolutely denied, and a letter was produced bearing a date very close to the transaction, which the Vice-Chancellor thought showed capacity above the average, and he dismissed the bill with costs, making very strong observations on the course pursued by the plaintiff in bringing forward such a case. The next case was Westbrook v. McKie, which was an old suit, relating to the property of Robert Briggs, formerly of the Island of Antigua, who by his will gave annuities and legacies, which were claimed by the Crown, on the ground of incapacity in the recipients, and also a legacy of 1000l. to a Presbyterian kirk in the island, in which the testator took great interest. It happened that at the time of his death, in 1861 (the will being made in 1838), the struggle between the kirk and the Free Church was at its hottest, and shortly after the well-known disruption occurred, and although one minister was inducted, he resigned after a year's residence, and ever since there had been only Free Church ministers. Under these circumstances, it was strongly urged that the doctrine of cy pres ought to be applied, this court having in Attorney-General v. Bunce so decided in the case of a Baptist congregation which had taken the place of a Presbyterian one at Devizes, and yet was held entitled under the most distinct gift to a congregation of "Presbyterians," sooner than that the gift should fail; and there were stronger cases. On the other hand, it was said that the doctrine of cy pres had been carried too far here, as the testator, being a |