Imágenes de páginas

be necessary to pay the purchase-money into Court choose between two conflicting decisions ; one of Lord under the 44th section, “it shall be lawful for the Justice Turner, when Vice-Chancellor, the other the Court to order the expenses of all purchases from decision of Vice-Chancellor Kindersley now under time to time to be made in pursuance of the Act, or consideration. so much of the expenses as the Court shall deem The question was, whether the Commissioners were reasonable, to be paid by the Commissioners, who liable to pay the costs incurred in relation to the sale shall from time to time pay such sum or sums of to them of certain land, which Parliament had em. money out of the moneys applicable to the purposes of powered them to take. The Westminster Bridge Act, the Act as the Court shall direct.”

1859, was the statute which conferred the authority, Among the hereditaments comprised in the Act of but in accordance with a mischievous practice, it did 1859, there was some property held on trust for the not in itself contain any complete rule, but borrowed minister and churchwardens of St. Sepulchre's. The many of its provisions from the Westminster Bridge trustees agreed to sell the same for 3,3001., and this Act of 1853, and amongst them those relating to costs sum was paid into Court by the Commissioners.

of this nature. On reaching the Act of 1853, there A petition presented under the 44th section of the was however still another stage to traverse, for that Chelsea Bridge Act, was heard by his Honour Vice- Act did no more than refer to the Chelsea Bridge Act. Chancellor Kindersley, who made an order thereupon, The precise effect of these references might perhaps by which it was directed that pursuant to the West- be a question, but in the present case both sides were minster Bridge Act, 1859, the Commissioners should willing to take the rule as it was given by the latter out of such moneys as Parliament should provide and Act. The material sections of this Act were the 44th place at their disposal for that purpose, pay to the and 49th. The 44th section was only so far material, petitioners their costs and expenses of the purchase or

that it showed, that trustees and others dealing with taking of the lands in the petition mentioned by the the lands of persons under disability, were not allowed Commissioners, and of the conveyance thereof to the the ordinary power of trustees to deduct their reasonCommissioners.

able expenses out of the capital of the trust fund. The Commissioners appealed against so much of the The 49th section in effect provided, that wherever order of the Vice-Chancellor as directed them to pay money was paid into Court under the 44th section, it the costs of the sale and conveyance to them.

should be lawful for the Court to order the expenses of The Allorney-General (Sir Roundell Palmer) and

all purchases from time to time to be made in purA. Hanson, for the Commissioners.

suance of the Act, or so much of them as the Court 1st. The words "purchases from time to time to be

should deem reasonable, to be paid by the Com

missioners. made in pursuance of this Act” apply only to purchases made after the money has been paid into Court, time to time” apart from the context, and giving

The Vice-Chancellor had taken the words “from and not to the antecedent purchase by the Com- them their natural interpretation, hal extended the missioners, Re Strachan's Estate, 9 Hare, 185.

language of the section to all purchases made in pur: 2nd. The 82nd section of “The Lands Clauses missioners in the first instance, or those subsequently

suance of the Act, whether those made by the ComConsolidation Act, 1845,” would, it is true, if ap- made by other persons, out of the moneys arising from plicable, support the order, but the Chelsea Bridge sales. His Honour considered that abstract justice Act contains provisions of its own respecting the

required this interpretation. But his Lordship was purchase of land, and therefore the Lands Clauses unable to agree with the opinion of the Vice-ChanConsolidation Act is impliedly excluded,

cellor. It was impossible thus to isolate words from Re Cherry's Estate, 10 W. R. 305.

the context in which they were found, or to admit, Pontifex for the petitioners.

that in a case governed by positive law, abstract 1st. The Vice-Chancellor's construction of the lan-justice demanded any departure from established rules. guage of the 49th section is right.

A secondary meaning was indeed admissible, wherever 2nd. The first section of the Lands Clauses Con- the primary meaning would lead to an absurdity or an solidation Act applies all the clauses and provisions impossibility; but to depart from the obvious conof the statute to all subsequent Acts in pari materia, struction on mere grounds of abstract justice, was to unless they are expressly varied or excluded. The legislate and not to interpret. 82nd section, therefore, not being expressly excluded,

The Vice-Chancellor's attention did not seem to and not being inconsistent with the provisions of the have been called to the case of Ex parte Strachan (loc. Chelsea Bridge Act, must be considered as part of it. cit.). There the application was similar to the present,

and the words of the Act, on which the decision turned, The Attorncy-Gencral in reply.

were almost exactly the same. In that case the Vice17 FEB. 1864.

Chancellor held, that those words did not enable him The LORD CHANCELLOR said, — The present appeal to give the costs which the present petitioners desired. involved a nice question of construction, and he had to the case was decided in the year 1851, and had, no

doubt, since then been frequently referred to and strued in all respects as if the said last-mentioned ict followed, and ought, in his Lordship's opinion, to had been passed for the purpose of authorising the govern the present application.

laying down and construction of the new street by this But the Court was still able to pronounce the order Act authorised to be laid down and constructed ; and right, although dissenting from the reasons which the for the purchase and taking of hereditaments, and for Vice-Chancellor had given. It was, as every one the leasing, selling, managing, and disposing of the would feel, important that means should exist for re- hereditaments to be taken, and the building to be imbursing trustees and others acting for persons under erected thereon, and as if the hereditaments comprised some incapacity the costs properly incurred in these in the schedule to this Act had been comprised in the transactions. And the reason was, that if they were schedule to the said last-mentioned Act; and as if not allowed to incur such expenses as a prudent the moneys authorised to be raised by this Act bal management would entail, they would be compelled been authorised to be raised by the said last-mentioned to hand over the property to the Commissioners with Act, and as if the said street, hereby authorised to be out taking any measures to deduce a satisfactory title made, had been by the said Act authorised to be or to obviate objections—a course extremely preju- made, except that, &c."—the exception being for the dicial to the parties for whom they acted. Considera present purpose immaterial. tions of this nature had induced the Legislature to lay The complete relation, which these words required, down those general rules which were contained in the was inconsistent with the admission of a rule tales Lands Clauses Consolidation Act. It had been rightly from a subsequent Act. But the very principle, which argued, that the rule given by that Act as to costs in that case compelled the exclusion of the Lanis must be considered as incorporated in the Chelsea Clauses Consolidation Act, in this demanded its apdiBridge Act. The general provisions contained in the cation. The Court was carried back no further than Lands Clauses Consolidation Act were, by the 1st the 9 & 10 Vict. c. xxxix. (the Chelsea Bridge Act, lani section of that Act, to be treated as part of every there it took up the Lands Clauses Consolidation Act, subsequent Act of the like nature, unless expressly save in so far as it was expressly varied or excepted. varied or excepted.

For these reasons his Lordship was of opinion, that The general provisions as to costs, were therefore to the judgment referred to of Vice-Chancellor Turna be taken as part of the Chelsea Bridge Act, unless was right, but finding these costs expressly given by expressly varied or excepted. If the special Act itself a clause of the Lands Clauses Consolidation Act

, furnished a complete rule, that was necessarily an which, in consequence of there being nothing ** exception of the general Act. But suppose the rule exclude it, formed part of the Act now under consigiven by the special Act applied only to costs of one deration, he came to the conclusion that the costs kind, did that infer an exclusion of the general Act ought to be paid as the Court below had directed

The order, however, was drawn in an inconvenient Now the costs in question might be divided into form, inasmuch as it directed the costs to be paid two classes : first, the costs incurred by the persons according to the Act, that was, in fact, according to 3 whose lands were taken before the money was brought labyrinth of words. It would be better to order, that into Court ; second, the costs arising subsequent to the Commissioners should pay these costs, so far as that event. The Lands Clauses Consolidation Act the same were payable under the 82nd section of the provided for both. The 82nd section gave the rule Lands Clauses Consolidation Act. Subject to that as to costs of the former class. And since the 49th alteration, the order of the Vice-Chancellor would be section of the Chelsea Bridge Act applied, as the Court confirmed, and the Commissioners would pay the had determined, only to costs of the latter class, the costs of the rehearing. costs of the former class were left untouched, and the 82nd section of the Lands Clauses Consolidation Act was thus let in.

Lords Justices.

JOLLANDS v. BURDETT. In opposition to this view, the case of Re Cherry's

} Estate (loc. cit.) was urged. But that case really contained nothing inconsistent with it. There the Act Married Woman-Bond Debt-Apportiorka: directing the land to be taken, (9 & 10 Vict. c. 34, of Interest—" Due and Receivable." authorising the construction of a new street) referred to the 3 & 4 Vict. c. 87, which was prior to the Lands

A married woman was entitled for her separate sky Clauses Consolidation Act, and thus passing over this but without anticipation, to the interest payalde att last-named Act took the rule from an antecedent Act. bond debt as such interest should become " dus And not only so, but the Act in question contained receivable." By the terms of the bond the interest soli these remarkable words :-“All and singular the to be paid on the 31st day of October in each year.“ enactments, exemptions from stamp duties and pro

Held, that an assignment of her income as deerusid visions in the said last-mentioned Act, (that is, the de die in diem was invalid. 3 & 4 Vict. c. 87,) contained, shall extend and be con- This was an appeal against an order made by the

as to costs of another kind ?

19 FEB. 1864.


Master of the Rolls in Chambers in an administra in the will “due and received" must be read as due tion suit.

and receivable." Alfred Brettle, the testator, by his will dated 1852, bequeathed to trustees his residuary personal estate

Osborne, Q.C., in limine, objected to the present upon trust, during the life of Sophia Cunningham, appeal, as being from an order made in Chambers,

McVeagh v. Croall, 1 N. R. 408, 531. & married woman, to pay the income thereof from time to time, and as “the same shall be due and Selwyn, Q.C., and Beales, for Mrs. Cunningham, the received, but not in the way of anticipation, into appellant, distinguished McVeagh v. Croall from the the proper hands of her the said Sophia Cunning present case. Here counsel had been heard before the ham for her sole and separate use and benefit, ex- Judge in Chambers. clusively and independent of her said present, or As to the main point, the point in dispute really any future husband, and so as not to be subject or turned upon the effect to be given to the words “due liable to or for his or their respective debts, control, and received" in the will, which, not to force a harsh interference or engagements," and declared, “ that the construction, might be read as “due and receivable.” receipts in writing of the said Sophia Cunningham The object of the testator had been to prevent Mrs. shall alone, notwithstanding her coverture from time Cunningham from anticipating her income. She is to time as the same income shall become due, be not permitted to assign it until it has become "due effectual discharges for the same.”

and receivable” by her trustees. Now, The testator died on the 31st October, 1856.

Hemsworth v. Campbell, 1 N. R. 503, At the date of his death, the testator was a member before their Lordships, showed that a debt would not of a partnership, the articles of which provided, that on be considered as “due and receivable" until the debt the death of any member his share of the partnership could be enforced. By the terms of the articles of capital should be secured by the bond of the surviving partnership and the bond, the payment of the instalpartners, and be paid, together with interest, to the ment of principal and interest due to the executors for executors of such deceased partner, in fifteen annual the year 1860 could not be enforced until the 31st of instalments.

October of that year. They were not therefore “due The share of the testator in the partnership was and receivable." Still less could the income be con. found to be 57, 4071. 148. ; and, in accordance with sidered, in the words of the deed, as "then accrued the provisions above-mentioned, the surviving part- and become payable.” ners secured, by their bond, to the executors of the deceased testator, the payment of that sum by fifteen

Osborne, Q.C., and G. M. Colt, for Robert Cruttwell,

the respondent. annual instalments, on the 31st of October in each

The income consists of interest on a bond debt accruyear, together with the interest thereon. Mrs. Cunningham, having some difficulty in obtain- ing de die in diem,

R. Roger's Trusts, 1 Drew. & Sm. 338 ; ing payment of her income, owing to the proceedings

and, therefore, the income from October to May was in the suit, Robert Cruttwell, one of the executors, on several occasions paid various sums of money to her for in truth “due and receivable,” although the day of

actual payment was postponed. her maintenance, receiving from her assignments of the arrears of her income. The last of such assignments was

Beales in reply. by a deed dated the 23rd of May, 1860, whereby Mrs.

KNIGHT BRUCE, L.J., said, that the present ques. Cunningham assigned unto Cruttwell

, his executors, tion concerned interest due on a debt governed by administrators, and assigns, all the interest and annual produce, and the moneys which had then special circumstances, since the interest could only be

demanded once in each year, or, in ordinary language, accrued and become payable

" to her in respect of the residuary, real, and personal estate of the then alone became due. By the will of the testator

Mrs. Cunningham was restrained from anticipating testator, by way of further charge, for securing to Cruttwell , &c., the several sums of principal and her income “not due, or received,” but the word

“received” could not be construed otherwise than “reinterest due to him.

ceivable.” It was on the meaning of those words that The question was, whether this was a valid charge

the present contention arose. His Lordship's opinion in regard to the income accruing between the 31st of

was in favour of Mrs. Cunningham's contention. He October, 1859, and the 23rd of May, 1860, the date of

considered the instrument inoperative as a charge on the deed.

the income accruing from the 30th of December, 1860, The Master of the Rolls had had the point argued

to May, 1861. before him in Chambers by counsel, and made an order, the effect of which was to treat the charge as valid in TURNER, L.J., said, he concurred that the word regard to the income accruing between the 31st of received" must be read as “receivable,” and that the October, 1859, and the 23rd of May, 1860.

income must be considered as “due and receivable,"

according to the terms of the instrument by which the During argument the Court decided that the words income was “due and receivable." He could not hold, therefore, that the contention of the respondent held Ex parte Christ Church, 9 W. R. 474; good,'either as regarded the terms of the will, or of Ex parte The Governors of St. Thomas' Hospin the deed of May, 1860.

7 W. R. 425. Minute.—Declare Robert Cruttwell entitled to the G. S. Law, for the College, and Sergeant, Structen, balance of income up to the 31st of October, 1859, and Speed, for the other companies, in support of the only.

order, cited,

Re Byron's Estate, 2 N. R. 294 ; 32 L. J. Ch. Lords Justices.

(N. s.) 584 ; } Re MERTON COLLEGE,

Re The Maryport and Carlisle Railway Company, 20 FEB. 1864.

1 N. R. 506. Lands Clauses Consolidation Act, 1845—Costs

Hobhouse, Q.C., in reply. of re-investmentApportionment. Upon a single re-investment in land of moneys paid

TURNER, L.J., said, that though it was impossible into Court by more than one railway company, a small to lay down a general rule, which might not infiet proportion of the perchase-money was taken from the hardship in particular instances, it was important, in residue of a fund paid in by the I company, part of the interest of railway companies themselves, that which had been previously re-invested in land, and a

there should be some general rule in these cases. Suala further part of which was left for future re-invest

a rule had been laid down in the case of Ex parte The ment :

Bishop of London, subject to exception in cases of Held (lubitante, Knight Bruce, L.J.), that the extreme hardship. He could see nothing in the preL company must bear equally with the other companies sent case to distinguish it from that of Re Byron's the costs of the re-investment.

Estate ; and, having regard to the provisions of the

Lands Clauses Consolidation Act, 1845, he did not This was an appeal, by the London, Chatham, and think that any sufficient reason had been shown for Dover Railway Company, from an order of the Master of departing from the general rule. the Rolls, made upon the petition of the Warden and Scholars of Verton College, Oxford, for the sale and

KNIGHT BRUCE, L.J., was not quite satisfied 13 *. re-investment in the purchase of an estate of the fold the proper order to be made in this particular cas. lowing sums of Consols, standing to the credit of the He thought that there ought to be no costs of the College, viz., 5011. 108. 1d. paid in by the Midland appeal. Railway Company, 2601. 3s. 3d. paid in by the Wy- Minule.-Appeal dismissed without costs. combe Railway Company, and 5571. 68. 2d. paid in by the Bedford and Cambridge Railway Company, and so much of the sum of 2061. 78. paid in by the appellants, as should be required to make up the purchase-money

Master of the Rolls.

} Re YETTS. (13501.), and for the payment of the costs of the re

18 FEB. 1864. investment (except the ad valorem duty) by the four TaxationOrder of CourseSpecial Application. companies equally.

The 2061. 78. was what remained, after a previous A solicitor delivered a bill of costs with a cish *: investment in land, of a sum of 6631. 93. originally count at the foot, which shewed a balance due to kis paid in by the appellants; and they now contended larger than the amount of the bill, and then brought uz that, as they had already paid the costs of one previous action for the whole amount :investment, and, through the arbitrary selection made Held, that, under the circumstances, the contana by the College, they would have to pay the costs of at order to tax was improper, and that a special applica» least one future investment, while the other companies tion must be made. would only pay a portion of the costs of a single in

Joseph Yetts had been employed as solicitor ari vestment, they ought to be relieved altogether from the costs of the present investment, or at least to con

agent in a suit, by William Woodgate, and had de tribute to such costs only in proportion to their contri- livered to him at different times four separate bills o? bution to the purchase-money.

costs. Owing to the lapse of time, only the fourth of

these bills could now be taxed. This fourth bill cosHobhouse, Q.C., and Kekewich, for the appellants, tained at the foot a cash account, which debited Wordcontended that the Court had not laid down any gene- gate with the unpaid balance of the previous bills

, ral rule in

together with 3041. 68. 3d., the amount of the present Ex parte The Bishop of London, 2 De G. F. & J. bill, and (after crediting him with a cash payment

shewed a balance of 6231. 12s, in favour of Vetts. at all events, the rule could not apply to a case like Yetts commenced an action for this sum of 623, 124, the present, where its application would work a mani. and thereupon Woodgate obtained an order, as of fest injustice. They cited,

course, to tax the (fourth) bill of costs. This order,

14 ;

Master of the Rolls.} Greenovcu r. Storrock.

which was in the common form of an order to tax the Consols to the plaintiff, to secure 4001. and interest, after action commenced, contained the following and such further advances as might be made either clause :

to her or her husband. A further advance of 1301. "And it is ordered that all further proceedings at was made by the plaintiff in September, 1860, to law against the petitioner in respect of the said bill be Robert Ellis, the husband of Hannah Ellis, on his sole stayed pending such reference."

receipt and a promissory note for that amount. Notice Selwyn, Q.C., and Batten, now moved to discharge but they refused to pay the income as it accrued to

of both advances was given to the trustees of the fund, this order.

the plaintiff, who therefore instituted this suit. Wickens, contrá, contended that the order was proper; for if a defendant to an action at law had a

Kenyon, Q.C., and North, for the plaintiff, congood equitable defence to a part of such action, he tended that the two sums of 4001. and 1301. were was entitled in equity to an injunction to stay fur- valid charges on the separate estate of Hannah Ellis, thor proceedings in respect of that part.

and that she was not restrained from anticipation by

the terms of the will, THE MASTER OF THE Rolls said, that to stay Acton y. White, 1 Sim. & S. 429. further proceedings at law in respect of this bill of costs was to stay part of an action, which could not be done

Selwym, R.C., and Hetherington, for Robert and without staying the whole action, and to this Woodgate

Hannah Ellis, cited, contrà, was not entitled. A special application was necessary

Field v. Evans, 15 Sim. 375; in such a case as the present, unless the consent of

Baker v. Bradley, 7 De G. M. & G. 597. the solicitor to a common order to tax could be

(THE MASTER OF THE Rolls said, that as they had obtained. The present order must therefore be dis raised no objection by their answer on the ground of charged with costs. But if counsel could agree on an

Mrs. Ellis's power of anticipation being restrained, order to tax the costs which would meet the circum- they could only do so now at the risk of losing their stances, it might, to save the expense of a special appli- costs, to which, as the matter then stood, he thought cation, be inserted in the present order.

they were entitled.]

Baggallay, Q.C., and Rowcliffe, for the trustees,

were only heard on the question of costs. 9, 10, 19 FEB. 1864.

THE MASTER OF THE ROLLS said, that the mortMarried WomanMortgage of separate Estate, gage for 4001. created a good charge on Mrs. Ellis's

interest in the sum of Consols ; but it could not be Further advances.

extended to cover the further advance of 1301. It was A married woman mortgaged her separate estate to true that the mortgage was given by the wife to secure secure 4001. and further advances, to be made to her or moneys to be advanced at a future time to her or her to her husband. A further advance was made to the husband, as well as moneys which were actually adhusband alone:

vanced at the date of the mortgage ; but he thought Held, that the further advance was not a charge on

that some further act or signature of the woman herthe estate so mortgaged.

self, at the time of the further advance, was required

to make such further advance a good charge on her "The defendant, Hannah Ellis, under the will of her

separate property. To hold otherwise, would be to father, was entitled for her life to the dividends on a

do away entirely with the protection of the separate sum of Consols which was vested in the defendants Shorrock and Forrest, upon trust from time to time to pay the dividends as they should accrue, and be

Master of the Rolls. LYSAGHT v. WESTreceived into the proper hands of Hannah Ellis, or


19 FEB. 1864. to such person as she in writing, signed by her hand, should, notwithstanding coverture, appoint, for her Practice-Sub-mortgageRedemptionsole and separate use ; and it was declared that the

Form of Decree. receipt of Hannah Ellis, or of the person or persons to whom she should so direct or appoint the same

In a suit for redemption against the executors of the to be paid as aforesaid, signed with her or their original mortgagee and sub-mortgagee, a reconveyance hand or hands, should from time to time be a good

was ordered to be made by all the defendants, on the discharge for so much of the dividends as should be plaintif paying into Court what was due from him to therein expressed to be received.

the original mortgagee. Hannah Ellis, by deed dated the 11th of June, 1860, This was a suit for the purpose of having certain to which her husband was also a party, in consideration annuities granted by the plaintiff to Henry Westof 4001. advanced by the plaintiff to her and her hus- macott declared void, except so far as they were secuband on their joint receipt, mortgaged her interest in rities for money actually advanced to the plaintiff.



« AnteriorContinuar »