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Comyn's Dig. “Nuisance ;"
not been told for what purpose it was to be used, Waller v. Sclfe, 4 De G. & Sm, 315;
yet knowing the nature of the traffic carried on at the Pollock v. Lester, 11 Hare, 266.
station, he was bound to make some inquiries about (Wood, V.-C., said, his chief difficulty was caused it. He did not acccde to the view taken in argument, by the delay of the plaintiff in taking active steps. The that a person seeing a large chimney being built near first complaint was made in 1861.]
his house, could abstain from making inquiry or objecThis was not an interlocutory application, where the tion till he was injured. In a case frequently referred plaintiff's delay might have prevented his obtaining to by Lord Eldon,* a person seeing a mine opened, an injunction till he had established his right at law. which would be useless without a right of way over his
[Wood, V.-C., said, that under the old practice, the own land, and standing by, was not allowed subseplaintiff could not have obtained an injunction at all quently to stop such right of way from being in such a case till he had established his legal right.] acquired.
That had been altered by the Act 25 & 26 Vict. c. Up till 1861, the plaintiff had not only acquiesced 42. It would be no answer at law to plead that the in the traffic, but regarded it as beneficial. In Decemnuisance had continued for two years :
ber of that year he made his first complaint, but followed Flight v. Thomas, 11 Ad. & E. 638.
it up by no active proceedings till November, 1862, The plaintiff could not file a bill till he sustained during the whole of which time the traffic was steadily injury. He knew nothing of the purpose for which the increasing The plaintiff having thus delayed to take siding was to be used. If a large chimney was built any steps for more than four years, having brought no near a person's house, he was not bound to make any action to establish his legal right, having stood by and inquiries or objections till he saw whether it was used seen money laid out on the siding, and the traffic inoffensively or not.
crease, without making any objection, could not now Rolt, Q.C., and T. Stevens, for the company, were not be permitted to ask the Court to do what, in effect,
would be to stop the traffic of the company.
Minute.-Bill dismissed, with costs. Wood, V.-C., said, there were two classes of cases in which the Court interfered in aid of legal rights :-1st,
Note.-See as to acquiescence, in the case of bills quia timet, where an application
Bankart v. Hodghton, 27 Beav. 425. was made to the Court to restrain an alleged infringe
Colching v. Basseti, 9 Jur. (N. s.) 591. ment of a legal right, and the Court interfered if reasonable cause were shown, so as to give an oppor
Re HAMPSTEAD JUNCTION RAILtunity of trying the right by action at law; 2nd, in Wood, V.-C.
WAY COMPANY. the case of bills of peace, as where repeated actions of
19 Nov. 1863.
Ex parte Buck. ejectment had been brought and failed, and the Court prevented any further action being brought.
Practice Lands Clauses Consolidation Act, In the first class of cases, the Court formerly never
s. 82-Costs of Conveyance. interfered if the plaintiff had had ample opportunity of trying right; and on this point Bateman v.
Under section 82 of the Lands Clauses Consolidation Johnson (Fitz.-G. 106) mainly turned. In the present Act the only costs payable to the landowner are those case there had been ample opportunity of trying the incident to the conveyance, including those of deducing right; and the only question was, whether the recent and verifying the title to the thing conveyed : but no Act, 25 & 26 Vict. c. 42, enabling the Court to decide costs of ascertaining the thing convcyed can be given.
A landowner contracted with a company to sell cerlegal questions in suits properly instituted, had so far altered the practice as to enable the plaintiff tain lands at thirty-five years' purchase of the groundto wait for between four and five years, and then
rents : come into a Court of Equity without bringing an
Held, that the costs of apportioning the ground-rents, action, for no other reason than that it better suited under section 119 of the Act, could not be allowed to his convenience so to do. His Honour was of opinion
the landowner. that such was not the effect of the Act, and on this This was a motion on the part of the owners of cer. ground alone the relief sought could not be granted. tain lands taken by the above-mentioned railway to
It was clear that the present bill could not be vary the certificate of the Taxing Master, made in sustained as a bill of peace.
respect of a certain bill of costs which had been taxed There was, however, another reason for refusing by him. relief in this case. It was a doctrine of the Court, By special agreement between the landowners and that if a person saw his rights being infringed, and the company, the latter agreed to purchase certain stood by, so as to place the person who was infringing lands required by them for a sum equal to thirty-five them in a disadvantageous position, the Court would years' purchase on the ground-rents. not interfere. In the prescnt case the plaintiff Had seen the siding constructed, and though he had
+ See Jackson v. Calor, 5 Ves. 559.
The landowners then employed a surveyor to appor cident to the conveyance; that is to say, all those tion the rents in accordance with section 119 of the incurred after the thing to be conveyed was ascer. Lands Clauses Consolidation Act, and in so doing con- tained, including those of deducing and verifying the siderable expense was incurred. At length a deed was title thereto. Thus it would be the duty of a solicitor, prepared in which the property conveyed to the com- when the draft deed of conveyance had been prepared, pany was described by reference to a schedule, embody- to verify the recitals by comparing them with the ing the result of the apportionment; and the draft of original deed ; and if a map or plan were annexed to this deed was approved by the company's solicitors, the deed, that would require verification; and costs subject to the approval of the schedule by the company's incurred for those purposes would be allowed. But surveyor.
no costs of ascertaining the thing to be conveyed The deed contained a clause providing that the would be allowed under that section ; they must be "company shall bear and pay all and singular the provided for by the agreement between the land. costa, charges, and expenses of and incident to the pre- owner and the company, and in case of difference, paration of these presents, and the execution thereof would be a proper subject of consideration for the by the several parties hereto."
jury or arbitrator, who determined the price to be A bill of costs incurred by the landowners in respect paid for the lands. of the sale of their lands was sent in to the company, Minute.- Disallow all costs occasioned by the apand contained numerous items relating to the expenses portionment of the rents, except any which might incurred in apportioning the rents. All these were have been incurred in employing a surveyor to verify disallowed by the Taxing Master.
the schedule annexed to the deed. Gifærd, Q.C., and R. H. Colt, on behalf of the landowners, now contended, that, under section 82 of the
THE WESTMINSTER BRYMBO Lands Clauses Consolidation Act, the items disallowed
COAL AND COKE COMPANY onght to be allowed, as being costs of matters relating
19 Nov. 1863.
(Limited) v. CLAYTON. to the conveyance of the property. This section was intended to include all legitimate costs as between Practice—Production of Documents—Right of vendor and purchaser,
Plaintiff to further affidavit as to Particular Rue Spooner, 1 K. & J. 220;
A plaintiff is entitled to a further afidavit as to docuThe schedule was strictly part of the deed, and could ments only when the defendant's answer and origina not have been made without the assistance of the affidavit are inconsistent, either with themselves or with surveyor.
one another, Further, if they were not entitled to these costs under
Affidavits in reply to an afidavit as to documents are the Act, they were entitled to them under the clause inadmissible. in the deed itself.
Semble, If a specific document is charged by a bill to
be in the defendant's possession, and specific information Sir H. Cairns, Q.C., and Speed, for the company, is required in respect of it, and the answer is insufficient, commented on the difference between the provisions exceptions would be allowed, even though they might not of the 80th and 82nd sections of the Act. The former be allowed if the interrogatory as to documents had been section provides for the costs of the purchase of land general, and the defendant had not answered it. taken from incapacitated persons; the latter for the
This suit was instituted to determine the boundaries costs of conveyances of land taken from persons sui juris. The costs of conveyance began with the deli- of certain adjoining coal mines, worked respectively very of the abstract of title ; and no other costs could by the plaintiff and defendant under leases. be given under section 82; the reason being, that any
The bill contained an allegation, that in January, previous costs would be included in the price paid for 1861, negotiations had taken place for an exchange of
certain of the minerals held by them respectively under Re South Wales Railway Company, 14 Beav. 418. their respective leases; and that, on this occasion, the If the landowners in the present case had desired to defendant had seen Mr. Napier, the manager of the have the costs of apportionment, they ought to have plaintiff's colliery, and given him a tracing from a bargained for them.
map which was represented by the defendant to be a As to the words in the deed, they pointed only to correct delineation of the boundaries of the lands held the professional costs of preparing it.
by the plaintiff and defendant,
The defendant, in the 31st paragraph of his answer, Giffard, Q.C., replied.
stated, that the tracing in question was taken from a
sketch or plan made by him for the purposes of the WOOD, V.-C., said, that, under the 82nd section of proposed exchange ; but denied that he had represented the Act, no costs could be given, except those in- it to be a corrected delineation of the boundaries,
though he believed it to be such. The answer then Wood, V.-C., said that the practice as to discovery proceeds as follows :
was founded on admissions made by the defendant, “I believe that I traced the outline of this sketch and he could not be called on to make a further affior plan from a working plan then and now in my pos- davit as to documents, unless his answer and original session ; but I gave the said sketch to the said Mr. affidavit were inconsistent either with themselves or Napier, and have no copy thereof, and do not exactly with one another, and that the Court had refused to recollect what it was; but, I believe, that if it shows allow him to be cross-examined on his affidavit for the western boundary of the said land, numbered 76, similar reasons. I did not take this from the said working plan, but I He was of opinion that the difficulty suggested by placed it at what I then understood to be the western the argument did not exist. Though the Court would boundary of the minerals at this spot as claimed by not allow any exceptions to an answer for insufficiency the company."
where the interrogatory was merely a general one and The defendant's aflidavit as to documents did not the same information could be got by a summons in include the working plan mentioned in the answer. Chambers,* yet there was no case which decided that
The plaintiff, thereupon, applied, in Chambers, that exceptions would not be allowed where a specific docuthe defendant should file a sufficient affidavit, “stating ment was charged to be in the defendant's possession, particularly whether he has not now in his possession and specific information was required in regard to it. or under his control, and if not, when last he had Further, his own practice in Chambers in cases where possession or control, and accounting for, a certain there was grave suspicion that documents had been working plan mentioned in the 31st paragraph of his omitted from an affidavit, was to direct the person answer filed in this cause, and by such answer sworn applying for a further affidavit to write a letter pointing to be then in his possession, and also stating whether out the nature of the information required. If after he has in his possession, or under his control, or when receiving such a letter the defendant refused to make a he had such, if not now, and what has become of further affidavit, he would place himself in an awkward certain surface and underground plans and sections, position : while if he made a false affidavit, the letter and working plans relating to the matters in question could be used in an indictment for perjury. in this cause.
In the present case his Honour held that there was This application was supported by an affidavit in such inconsistency on the face of the answer as to call which it was stated that the defendant's lease con- for further explanation. It was the right of the tained a covenant with the owner of the mine, to keep defendant, as much as of the plaintiff, to give such an accurate plan of the workings of the mine.
explanation. As to the covenant alleged to be in the The summons having been adjourned into Court, lease, he could not take any notice of it: first, because Rolt, Q.C., Giffard, Q.C., and Freeling, appeared in he could not presume that it had been observed ; and, support of it. They urged the following reasons :
secondly, because even if he could, there was nothing 1st. The answer of the defendant was inconsistent to show that the plans related to the matters in ques. with itself; and on this ground the plaintiff was en
tion in the suit. titled to call on him for a further affidavit.
He should order the defendant to make a further 2nd. The affidavit in support of the summons
affidavit as to documents in his possession. showed reason for supposing that the working plan
Note.*_See, however, related to matters in question in this suit; and
Hudson v. Genfell, 3 Giff. 388. was admissible in support of the application on the authority of Richards v. Watkins, 6 Jur. (N. s.) 168;
Wood, V.-C. Willett v. Thiselton, 1 N. R. 42;
21, 23 Nov. 1863. Noel v. Noel, 2 N. R. 294. These cases removed the difficulty as to obtaining
Will, Construction-Residuary Bequestdiscovery of documents occasioned by the practice of
Lapse. the Court, which did not permit an answer to be Where a testator gave one-third of the proceeds of the excepted to for insufficiency in regard to documents, conversion of his residuary real and personal estate to nor a defendant to be cross-examined on his affidavit as A for life with remainder to his children, and declared to documents.
that on failure of A's issue the one-third should sink (Wood, V.-C., said that the summons was quite into his residuary estate, and be held and applied irregular in point of form, and that an affidavit in accordingly; and then gave the other two-thirds to other reply to an affidavit of documents was inadmissible.]
persons; and A died without issueCotton, for the defendant, then argued that the
Held, that A's one-third was not given to the other answer was not inconsistent with itself; and that it residuary legatees, but was undisposed of. was not shown that the working plan related to
Humble v. Shore (7 Hare, 247), followed. matters in question in the suit.
The question in this suit, which was heard on motion
} Lightfoot v. BURSTALL.
tion of the fund.
for decree, was whether one-third of the testator's resi- Woon, V.C., thought that Humble v. Shore was duary estate was given to the legatees of the other rightly decided in principle. The fallacy of Mr. tvo-thirds, or had lapsed.
Amphlett's argument was, that the words following The testator gave his real estate, and also his per- the bequest to F. Burstall and his children amounted sonal estate, to trustees, upon trust to convert to a gift. One might have some suspicion of an and out of the proceeds to set aside a sum to intention beyond what the law would imply, par an annuity, and to pay legacies ; and to and one might be inclined to think that these worils hold the surplus moneys, and the sun so set aside, ought to have some effect given to them. The argusubject to the annuity, upon trust as to one-third ment, however on the other side was at least as for his nephew, Francis Burstall, with remainder strong, that if the testator had intended to have to his children who should attain twenty-one as given this share over to the other two legatees, nothing tenants in common. The will then proceeded in the was simpler than for him to have said so. It was too following terms :-"If there should be no such child, much for the Court to imply that by using words then after the decease of the said Francis Burstall and which were mere surplusage the testator intended a such failure of his issue as aforesaid, the same trust
and personal estate unto, or in trust for, her cousin, Sarah moneys, and premises, shall sink into, and form part Whitaker, widow, her executors
, and assigns of my residuary real and personal estates, and be held
absolutely. “And whereas it is my will and meaning that and applied accordingly." Another third the testator the said Sarah Whitaker shall take and enjoy only a life gave to M. Bolton for life, with remainder to her interest in the aforesaid part or share of the said residuary children, and the remaining third he gave to M. B.
trust-fund, and, subject thereto, that the capital of the same
fund shall be disposed of as hereinafter mentioned; now, Lock, absolutely.
therefore, I direct." She then gives a direction, which I Francis Burstall died after the testator's death, with omit; becuuse it is inapplicable to the ultimato disposiout issue.
She then goes on to say what the dis
position of the capital shall be ; and, importing that into the Rondall, for the plaintiff, the surviving trustee of clause I first read, the case will be the same as if she had the will.
said, “I give her only a life interest in the aforesaid residu
ary trust fund, and, subject thereto, the capital of the same Roll, Q.C., and Wickens, for the next of kin of the shall sink into the residuo of my personal estate, and be distestator, relied on
posed of accordingly." Now, if she had simply said, “I will Humble v. Shore, 7 Hare, 247.
that she shall take a life interest only,” that would be equivaThey also cited
lent to a revocation of the bequest to her, except to the extent
of the life interest; and, in that case, Creswell v. Cheslyn Cresuell v. Cheslyn, 2 Eden, 23.
would have been a direct authority for the proposition that Amphlett, Q.C., and Bristowe, for the other residuary
the next of kin would be entitled to the property. The effect
would have been that, in law, the share, subject to her life legatees, contended ; 1st, that the testator's manifest interest, would havo sunk into the residue and would have intention was to give the whole of F. Burstall's share, been disposed of as such. If the testatrix, instead of revoking on failure of his issue, over to the other residuary the bequest to her, except to the extent of her life interest, legatees; 2nd, that the Court would arrive at the same goes on to say, “I will that it shall sink into the residue," she result by a process of infinite subdivision. At least
expresses no more than the law would imply, and the case
would be precisely the same as it was before, and the estate they were entitled to two-thirds of F. Burstall's third : Atkinson v. Jones, Johns. 246 ;
The whole question turns on this Besides saying it shall Evans v. Field, 8 L. J. (N. s.) Ch. 264 ;
sink into the residue, she gives a direction to her trustees Harris v. Davis, 1 Coll. 416, 426.
that it shall be disposed of accordingly, and the question is The report of Humble v. Shore could not be relied whether
, having willed it shall sink into the residue and be
disposed of accordingly, those words,“ disposed of accord01: neither the arguments of counsel nor the judgment ingly,” mean disposed of as residue, or whether they mean were given.
something else. On that point I will look into the will to see Nolder and Jackson for other parties.
whether from any parts of it I can collect an intention, or get
any certain guide to go on. Rolt read extracts from the short-hand writers' Tuesday, 16 March, 1847. notes of the judgment of Wigram, V.-C., in Humble v. Now the case of Creswell v. Cheslyn is a direct authority that, Shorc.*
where a share of the residue which is given absolutely by the
bequest is revoked, that share becomes residue undisposed of, * Saturday, 13 March, 1847.
unless it is given to some one else. The question, therefore, WIGRAM, V.-C.-I will dispose of the question about the next is on the second codicil, whether there is a gift of Sarah Whitof kin, the only point I doubt about, on Tuesday morning. aker's share to anybody else. The first direction is that it With respect to the rest of the case, I can dispose of it now, sball sink into the residue of the estate. That of course is no and also in part dispose of the question even with respect to gift to any one else. But then there is a direction that it shall the next of kin, so far as stating the point on which I think be disposed of as after mentioned, and when you come to the sny judgmnent must eventually turn. The first question is, as words “after mentioned,” the direction is that it shall sink into to Mrs. Sarah Whitaker's share. By the will one-third of the the residue of the personal estate and be disposed of accordmadue was given to her absolutely. The testatrix, by her will ingly. The question is, whether the direction, that a share of (sil., but qu. codicilj
, recites that she had, by her will or testa- / the residue previously undisposed of is to be disposed of mentary appointment, given and bequeathed one-sixth of the accordingly, is a gift to the legatees. My opinion is it is not. moneys constituting the residuary fund arising from her real I cannot find any gift to the residuary legatees in those words.
would be distributed to the next of kin,
gift. Evans v. Field was a strong decision, but it was Insolvent Debtors' Court had, on the 22nd day of distinguishable from the present case ; for there the April, 1863, obtained his order of discharge, conditiontestatrix made a gift and disposal of what should fall ally upon his setting aside out of his pension of 1701. in. The shares in that case did not exhaust the fund, per annum, as such clerk, the yearly sum of 401. fo. and the Court must have arrived at its decision by some the payment of his debts. The first instalment of ths such process of subdivision as his Honour was asked 401. became due on the 1st day of October, 1863, bit to adopt here. This case was exactly like Humble v. the bankrupt alleging that he was acting under advice Shore ; and with that decision his Honour entirely refused to make any payment on account of it. agreed. The decree, therefore, would contain a declaration
Dowse, on behalf of the creditors' assignee of th: that one-third share of the testator's residuary real bankrupt, now applied under the 226th section of and personal estate had lapsed.
the Bankruptcy Act, 1861, for the committal of the bankrupt to prison, as having by such refusal wilfully disobeyed “the rule and order of the Court."
His Honour said, that here there was no such Goulburn, Comr. } Re R. W. YEO.
"rule and order of the Court" to the non-compliance 16 Nov. 1863.
with which the 226th section would apply. Committal for Disobedience of Order of Court
Sargood, for the bankrupt, submitted, that the Court Bankruptcy Act, 1861, s. 226.
had no jurisdiction, and that the application ought to An order of discharge, granted conditionally on a sum
be refused. being set aside by bankrupt for payment of debts, is not His Honour said, that the order of discharge could in itself such an order for payment of that sum, as that not be held to be per se
, an order for payment
, and, the bankrupt may be committed for refusing payment. in point of law, the application must fail.
The bankrupt, who had been a clerk in the late Minute.- Application refused.
TANTS OF STAPLETON.
Regina v. THE INHABI. | certain other persons, trustees of the charity herein26 JUNE, 4 Nov. 1863.
after-mentioned, against a rate made upon them Poor-rate-Exemption of Buildings used for
respectively as occupiers of certain premises in the
parish of Stapleton, the Court of Quarter Sessions for Public purposes-Charities.
the county of Gloucester amended the rate by striking Certain lands and buildings vested in trustees were
out the nanies of the said Richard Rowlatt and of the held by them under the provisions of a deed of settle- said trustees, subject to two special cases for the ment, for the purposes of a charitable institution for the opinion of this Court, by which the following facts education, clothing, and maintenance of a hundred appeared :poor boys. The trustees employed the necessary school
By indentures of lease and release, dated the 24th masters, paying their salaries and defraying all other and 25th of November, 1708, Edward Colston connecessary expenses out of the profits of the lands so vested veyed a messuage and lands to certain persons in fee in them. They had also the ordering and governing of upon trust to permit the master, wardens, and assistthe boys, and appointed one-half of their number; and ants, and commonalty of merchant adventurers within they held meetings from time to time at the school pre- the city of Bristol, and their successors, to hold and miscs. These consisted of a residence, and offices, and enjoy the said messuage and lands upon trust that a playground, and a garden of which the schoolmaster the said house should be for ever used and employed
The schoolmaster had also sepa- for a house, habitation, and abiding-place for a rate apartments allotted to him in the school premises, hundred poor boys, and one or more schoolmasters, where he resided with his family:
and for necessary servants to inhabit in : and for a Held, that the schoolmaster was liable to be rated in school to teach the said boys, and to provide them respect of the portion of the school premises used as his meat and clothing, &c. ; and a convenient allowance residence, and that the trustees were rateable in respect for such schoolmasters at the discretion of the trustees
, of the residue of such premises.
who might from time to time displace such school
masters if they should think fit; and also, from time Upon appeals by one Richard Rowlatt, and also by to time, to repair the said house ; and to pay and dis
had the cxclusive use.