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Analytical Digest of Cases : Courts of Equity.

101 ANALYTICAL DIGEST OF CASES, tion. He then filed an affidavit in the Court

of Bankruptcy, stating that he had satisfied, and obtained a discharge from, all the creditors

named in his schedule; and that he had notiCourts of Equity.

fied such satisfaction and discharge by public CONSTRUCTION OF STATUTES.

advertisement. The plaintiff then applied to

the official assignee for a release of his estate, [ALTHOUGH the present is a short section which, according to the provisions of the act, of the Digest, we think it preferable to give it vested in such assignee on the prosecution of insertion in this shape, as distinguished from the petition ; but in the absence of any proviso other classes of decisions in the courts of official assignee in such a case, the plaintiff

in the act for determining the duties of the equity.]

was unable to obtain any release or re-conveyo

The plaintiff then filed his bill against Jurisdiction.- Construction of 9 & 10 W. 3, the defendant, as mortgagee, for the redempc. 15.- The Court of Chancery is one of the tion of an estate which had been mortgaged “Courts of Record” to which the statute 9 & before he presented his petition to the Court 10 W. 3, c. 15, gives summary jurisdiction for of Bankruptcy. Upon the objection of the the enforcement of awards. The statute ex

defendant, that the estate of the plaintiff (if cludes every jurisdiction to interfere with the any) was vested in the official assignee: Held, execution of awards made under it, except the that in the absence of any statutory jurisdicsummary jurisdiction expressly given by it. tion on the subject in the Court of Bankruptcy, And a bill will not lie to impeach an award and upon the submission of the assignee, the inade under the statute whether the submission plaintiff was entitled to sustain the suit at the under which it was made has or has not been hearing. Whether, if the defendant had demade a rule or order of court before bill filed. murred, the bill would have been sustained Heming v. Swinnerton, 2 Phill. 79.

quære. Preston v. Wilson, 5 Hare, 185. Cases cited in the judgmont: Nicholls v. Roe, 5

Cases cited in the judgment: Tarleton v. Hornby, Sim, 156; Joseph and Webster, in re, 1 R. &

1 Y. & C. 172; Thompson v. Denham, 1 Hare, M. 196 ; Pownall v. King, 6 V'es, 10.

358; Major v. Aukland, 3 Hare, 77 ; Ex parte

Newlands, 1 De Gex, 150. See Insolrent Debtor ; Interpleader.


See Interploader. CONTEMPT. 1 W. 4, c. 36.-Reference as to poverty. Pro confesso.- A party moving for his dis- Policy of insurance.- A life insurance comcharge, under the 13th rule of the 1 W. 4, c. pany received notice of an assignment, by an 36, may be at the same time remanded under insurer of a policy which the company had the 12th rule.

granted, and the insurer afterwards became Whether, pending a reference as to the bankrupt. Soon after the death of the person poverty of the defendant, time runs against the whose life was assured, the party to whom the plaintiff for taking the bill pro confesso ? assignment had been made applied for the Semble not. Potts v. Whitmore, 8 Beav, 317. payment of the sum due upon the policy, and CORPORATIONS.

the company inquired of the assignees of the 5.& 6 W. 4, c. 76.-The proper style of bankrupt whether there was any objection to municipal corporations in cities is, the mayor, assignees did not assent to the payment, but

payment being made to the claimant. The aldermen, and citizens,” and not the “ mayor, made no positive claim to the policy.

In the aldermen, and burgesses,” of the city.

meantime an action was brought upon the Leave given to amend the title of an answer, policy by the claimant, in the name of the although the application was opposed by the bankrupt against the company: Held, that it plaintiff. Attorney-General v. Worcester, Cor

was a case in which the company were entitled poration of, 2 Phill. 3.

to file their bill of interpleader against the EXCHEQUER, EQUITY.

plaintiff in the action, the bankrupt, and his See Jurisdiction.

assignees; and that the assignees who had in the suit shown no title to the policy, must pay the costs.

Edmonds, 5 Hare, 314. See Trustee.


Exchequer.-Prerogative.5 Vict. c. 5.5 & 6 Vict. c. 116.-Release by assignee. The whole equity jurisdiction of the Court of Bill for redemption. The plaintiff filed his pe- Exchequer, including that relating to the tition in the Court of Bankruptcy, under the revenue, was transferred to this court by the 5 provisions of the act 5 & 6 Vict. c. 116, for Vict. c. 5, s. 1. the relief of insolvent debtors not owing more The crown might, before the abolition of than 3001., and passed his examination, and ob- the Equity Exchequer, have proceeded on the tained his interim and final orders for protec-equity side in respect of a legal right, and may



Fenn y.




Analytical Digest of Cases : Courts of Equity. now proceed in the same way in chancery. bar created by 20 years' possession by a mortAttorney General v. Corporation of London, 8 gagee, is defeated by his having kept accounts Beav. 270.

of the rents received by him. Baker v. Wetton, Cases cited in the judgment: Attorney-general of

14 Sim. 426. the Prince of Wales, v. Sir J. St. Aubyn, Wightwick, 167.

Purchaser within 27 Eliz. c. 4.–An equitable And see Award.

mortgage by deposit of title-deeds, with an agreement in writing by the party making the

deposit, to execute a formal mortgage of the Entry on land for surveying, setting out property to the mortgagee for the balance which line, fc. — Notice. - Injunction. – 8. Vict. might be due to him, constitutes the equitable c. 18. -A railway company having power mortgagee a purchaser for good consideration to purchase a plot of land for their railway, within the statute 27 Eliz. c. 4, in respect of entered upon the same to survey and take such balance; and, it being a term of the levels thereof, and probe or bore to ascer- agreement that the mortgage to be executed tain the nature of the soil, and set out the should contain a power of sale, the court, on a centre line of the railway, and for that pur- bill to set aside a prior voluntary conveyance pose they dug a trig line or trench 2 inches by the mortgagor, as fraudulent android, deep and 14 inches wide across the plot of under the statute 27 Eliz. c. 4, decreed, that, land, but they gave the owners of the land no on default of payment, the mortgaged property previous notice of such entry as required by should be sold. the 84th section of the Lands' Clauses Con- Quære, whether after the bankruptcy or insolidation Act, (8 Vict. c. 18). Five days after solvency of a debtor, any creditor (other than the trig line was made, the owner of the land the assignees) can, in ordinary cases, sustain a discovered the fact, and 9 days from such dis- suit to set aside a conveyance made by the covery he filed his bill for an injunction. debtor prior to the bankruptcy or insolvency, Upon the affidavits on the part of the company on the ground that such conveyance is frauduthat the surveying and setting out of the line lent, within the statute 13 Eliz. c. 5; or of railway was completed on the day the trig whether it is necessary that any creditor seekline was made, and that they had no occasion ing to set aside such fraudulent conveyance to enter, and did not intend again to enter upon must previously recover judgment at law for the land until they had taken the legal steps his debt. Lister v. Turner, 5 Hare, 281. for permanently using it; the court refused Cases cited in the judgment: Buckle v. Mitchell, the injunction, but reserved the costs. Fooks 18 Ves, 100; Colman v. Croker, 1 Ves. jun. v. Wilts, Somerset, and Weymouth Railway 161. Company, 5 Hare, 199.

See Limitations, Statute of. LIMITATIONS, STATUTE OF. 1. Equitable waste.- Acquiescence.-Release.

See Corporation. -Length of time. The statutory rule which gives to a remainder-man 20 years from the See Contempt. time when his title accrues in possession for bringing an action or suit for the property, applies to a claim for compensation for equit

Conversion.Realty and personalty.Double able waste, as well as to a claim to the land operation of probate.-As to the right of the itself. And therefore an account of equitable

crown to probate duty on realty of a deceased waste was decreed against the estate of the party impressed, in equity, with the character tenant for life 38 years after the waste was

of personalty. committed, the title of the plaintiff, as re

J. S. conveyed fee simple estates, upon trust, mainder-man in tail, having accrued within by sale, &c., to pay certain debts, and the re20 years before the filing of the bill.

sidue to himself, his executors, administrators, Upon a claim to compensation for equitable favour of his heirs or real representatives, not

and assigns, without any equity thereon in waste, the court does not consider whether the act complained of was, or was not, a sound withstanding the estate might remain unconexercise of discretion with reference to the verted at the time of his death. The estate was

sold after his death : Held, that no part of the state of the property, and to the interests of the family to which it belongs, for a tenant for produce was liable to probate duty. life has no right to alter the nature of property and authenticating the title of the executor to

Operation of a probate in evidencing the will belonging to another person.

Distinction between acquiescence and the property not comprised within the grant of adrelease of a right. Duke of Leeds v. Earl of

Swift, 8 Beav, 368.

ministration. Matson v. Amherst, 2 Phill. 117. Cases cited in the judgment : Bennett v. Colley,

See Contempt. 2 Myl. & K. 225; Kemp v. Westbrook, Ves. sen. 278.

See Insolvent Debtor. 2. Mortgage.-Quære, whether, since the late Statute of Limitations (3&4W.4,c.27, s.28), the 1. Infant. - Under the 1 W. 4, c. 60, the













Analytical Digest of Cases.--Superior Courts : Lord Chancellor.

103 Master has no power to appoint a person to circumstances, the bill ought to have been disconvey. It is for the Master to “ approve,” missed with costs ; and secondly, that the appeal and for the court to “appoint.” Fowler v. involved the principle of giving costs, and would Ward, 8 Beav. 488.

therefore lie." Upon the first point they cited 2. 1 W. 4, c. 47. - Infant.The 12th section Turner v. Turner, 2 P. Wms. 297; Meyrick v. of the 1 W. 4, c. 47, does not apply to a case Whishaw, 4 Madd. 272; Baily v. Taylor, 1 where an estate is devised to a trustee during Russ. & Myl. 73; Bacon v. Spottiswoode, the life of a cestui que trust, with remainders Bacon v. Jones, 1 Beav. 382; Millington v. over; and by the disclaimer of the trustee, the Fox, 3 Myl. & Cr. 338 ; and Peachy v. Somerset, legal estate descends on the heir.

i Strange, 447 ; (the passage apposite to this A conveyance by an infant, under the 11th question will be found at page 455.) Upon the section of i W. 4, c. 47, passes only such in- second point they cited Owen v. Griffith, terest as the infant, if of full age, might pass. Ambler 520, and i Ves. sen. 249; Cowper v. Heming v. Archer, 8 Beav. 294.

Scott, 1 Eden, 17 (mentioned in Wirdman v.
Kont, 1 Bro. C. C., p. 141, n., Blunt's ed., where

most of the early cases on this point are colSee Limitations, Statute of.

lectedd); Burketi v. Spray, 1 Russ. & Myl. 113 ;

Taylor v. Southgate, Eyre v. Marsden, and RECENT DECISIONS IN THE SUPE- Angell v. Daris, 4 Myl. & Cr., pp. 203, 231, RIOR COURTS.

360; Tod v. Tod, 1 Bligh, 638, N, S.

Reference was also made during the argument to Maguire v. Maddin, 2 Bro. P. C. 393; Calcraft v. West, 2 Jones & Lat. 123; Marquis

of Waterford v. Knight, 3 & 11 Cl. & Fin., pp. Lord ( vancellor.

270 & 653; and Sheehy v. Muskerry, 7 Cl. &

Fin. 1. Chappell v. Purday. March 20th & 26th, and

Mr. Rolt and Mr. Chandless argued contrà, April 1st.

and Mr. Anderdon replied. COSTS

The Lord Chancellor, after briefly stating PLAINTIFF'S TITLE FAILS AT LAW.-AP.. the facts and proceedings, said, that where a PEAL FOR COSTS ONLY.

plaintiff who claiins relief in this court on the This court has no jurisdiction to mulet the de. such title, it is a matter of course that the bill

grounds of a legal title fails in establishing fendant in his costs of an injunction suit, should be disinissed with costs. The first deupon the grounds of a vexatious and expen- cree of his Honour was, therefore, quite correct, sire defence of the action at law, wherein but the second was inconsistent with it, and the plaintiff failed to show a title to the therefore they could not stand together. With subject-matter of the bill.

respect to the defence to the action, the courts An appeal for costs only will be entertained of law were competent to visit upon the defend

whenever a principle is involved, or the prac- ant any impropriety in conducting the trial tice of the court requires to be defined, or a with urinecessary expense, and the costs there particular estate or fund has been charged would not affect the costs here, where the only with them, or they have been refused, con- question was on the plaintiff's right to restrain trary to the usual practice, as in a bill for the defendant in the manner prayed. As to discorery, &c.

the question on the right to appeal for costs Mr. Anderdon and Mr. J. W. Smith stated, only, it was of great importance to understand that this was an appeal by the defendant from it correctly. The cases were numerous in which Vice-Chancellor Wigram, who had dismissed the doctrine of appealing for costs only had the plaintiff's bill without costs. The plaintiff been defined. The general rule is, that there claiming to be entitled to a certain copyright, cannot be an appeal for costs which depend filed the bill to prevent the defendant from upon the discretion of the court adjudicating using the same for his own benefit. Various upon them from circumstances before it, and proceedings took place in the course of the suit, with which circumstances this court may not and ultimately the bill was retained for a year, be acquainted. The exceptions to this rule are, with liberty for the plaintiff to try at law her where a principle is involved-practice to be alleged title to the copyright in question, other- defined-a particular estate or fund to be wise the bill to be dismissed with costs. An charged-or the costs have been refused in a aetion was accordingly brought, when a ver. bill of discovery-or contrary to general prac, dict was given for the plaintiff, which was tice. In Owen v. Grifith, Ambler, 520, Lord afterwards entered for the defendant, (see 14 Hardwicke heard an appeal for costs only where Mees & Wels. 303.) The plaintiff's right be- a mortgagee who is entitled to them by the ing thus negatived his Honour subsequently practice of the court had been refused them. dismissed the bill but without costs, and ex- This case was followed by Lord Northington, pressed an opinion that the defendant was not in Cowper v. Scott, i Bro. 141. His lordship entitled to his costs, as he had entailed unne- then referred to two cases decided by himself; cessary expense upon the plaintiff by a defence viz., Taylor v. Southgate, and Angell v. Davis, in certain portions of which he had failed. The suprá, in which an appeal for costs only had learned counsel submitted, first, that under the been entertained on the same principle and



Superior Courts : Rolls.– Vice-Chancellor.- Queen's Bench. upon the ground of miscarriage in the court Mr. Bourdillon feared that the words of the below, and concluded by saying that he thought act did not apply to the case. the decree on further directions in the present The Vice-Chancellor then said, that as there case was a miscarriage, as the plaintiff had was nothing in the act authorizing him to failed to make out at law the title which alone grant what was asked he should refuse the could give him the relief sought, and conse- application; if he granted it the effect would quently that the bill must be dismissed with, be to make the court a stock-jobber for the instead of without, costs.

benefit of the railway company, and that par

ties similarly situated would be continually Rolls Court.

changing their investments whenever an adLautour v. Halcombe. April 15, 1847.

vantageous opportunity occurred. DISMISSAL OP BILL. The order staying all proceedings against one

Queen's Bench. defendant to a suit, is no answer to a mo

(Before the Four Judges.) tion to dismiss by another defendant for The Queen v. The Town Council of Litchfield. want of prosecution as against him.

Easter Term, 1847. This was a motion by the assignees of one of the defendants to dismiss the bill as against costs UNDER TRE 5 & 6 w. 4, c. 76, s. 92, him for want of prosecution. It was opposed upon the ground that the plaintiff was detained

The tỷwn council of L. dismissed A., the town in prison for non-payment of costs to another

clerk, and refused to allow him compensation. defendant, in a previous cause for the same

A mandamus issued, and the town council object as the present, and that all proceedings returned that they had dismissed A. for against this defendant being stayed till payment misconduct, and set out the grounds of disof these costs, it was impossible for him to missal. The return was traversed, the jury prosecute the suit effectually against the de

found a verdict for A., and a peremptory fendants, who were now moving to dismiss; mandamus issued to award compensation. and it was stated that the plaintiff was then en

Held, that the town council, acting under a gaged in negotiations to raise money for the

bonâ fide supposition that A. had been payment of these costs. Mr. Roundell Palmer for the motion.

guilty of misconduct, the costs of these proMr. Kindersley and Mr. Elderton, contrà.

ceedings were properly allowed out of the Lord Langdale inquired, whether the plaintiff

borough fund, under the 92nd section of would undertake to pay the costs within a week,

58. 6 W. 4, c. 76. but as the plaintiff could not give any such un- That a retainer given by the town council to dertaking, said, that the bill must be dismissed, their attorney to show cause against the observing, that here the plaintiff was stopped

writ of mandamus, was sufficient to justify by his own default in proceeding against an

him in the subsequent proceedings taken in other defendant; an excuse for delay which he

resisting the claim for compensation. could not consider as at all sufficient to de- It is no objection to this order returned by cerprive a defendant who had performed his duty, tiorari, that no hill of costs had been proof his right to have the bill dismissed for want perly delivered. of prosecution against him.

A notice of a meeting to take into considera.

tion the accounts of the borough is sufficiently Vice-Chancellor of England.

explicit ; at all events, the party objecting In re Harwich Railway. May 25, 1847.

should have attended the meeting, and there

have objected to the payment of these costs. 9 & 10 Vict. c. 20.

A RULE nisi had been been obtained for the Application to allow the security on which purpose of setting aside an order marle on the money had been invested under an order of field, for the payment of the sum of 2001. to

16th Dec., 1846, by the town council of Litchthe court to be changed, refused, there being Mr. Edgington, the present town clerk of the no authority for doing so in the act 9 & 10 borough for costs. In 1844, Mr. Simpson was Vict. c. 20.

dismissed from the office of town clerk of this This was a petition by the Harwich railway borough. He applied for compensation, which company for the purpose of obtaining a direc- was refused. He then obtained from this court tion for the sale of the sum of 13,500l., which a writ of mandamus, and the town council had been paid into court and invested on ex- made a return to the writ, stating that Mr. chequer bills under an order of the court pur- Simpson was dismissed for alleged misconduct, suant to the act 9 & 10 Vict. c. 20, and that and set forth the grounds on which he had been the same might be converted into cash and re- dismissed. Mr. S. pleaded to the return, and invested, the present state of the funds rendering traversed the allegations in the return. The it advantageous for the company to have it done. case went down to trial, and a verdict being

Mr. Bourdillon appeared for the petition.
The Vice-Chancellor asked if the act 9 & 10 awarded to grant compensation. The costs in-

found for Mr. S., a peremptory mandamus was Vict. c. 20 gave any authority for doing what curred in resisting this claim the town council was required.





Superior Courts : Queen's Bench.-Queen's Bench Practice Court.

105 had ordered to be paid to Mr. Edgington out of Queen's Bench Practice Court. the borough fund, under the 5 & 6 W. 4, c. 76,

(Before Mr. Justice Erle.) s. 92. The order being removed into this court by certiorari, a rule nisi was obtained to James v. Brook. Hilary Term, Feb. 1 & 21. set it aside. Mr. Sergeant Talfourd and Mr. Coroling

PRACTICE. showed cause. There are several objections taken to this order of the town council. It is In an action on the case for defamation, the said that the costs and expenses of these pro

declaration contained three counts. At the ceedings are not properly payable out of the

trial the verdict was for the defendant on borough fund under the 92nd section of the the two first counts, and for the plaintiff Municipal Corporation Act; that Mr. E. had on the third count, with 1501. damages : not received a formal retainer from the town

subsequently the judgment was arrested on council. There was a retainer to defend these

the third count. Held, that the defendant proceedings, but it is said there was no retainer was only entitled to his costs of the issues to defend the return to the mandamus. It was

found for him, and not to the general costs also objected that no bill of costs had been de

of the cause. livered, and that the notice of the meeting of Case for defamation. The declaration conthe town council on the 17th Dec. was not suf- tained three counts. Pleas, “not guilty" to ficiently specific to show that the payment of the whole declaration, and a special plea of these costs would be taken into consideration. justification to each count. The plaintiff took They cited Regina v. The Town Council of issue on the plea of not guilty, and replied de Litchfield;" Regina v. Bridgewater;" Regina v. injuria to the special pleas. "At the trial the Thompson ;o Regina v. Mayor of Gloucester.d jury found a verdict for the plaintiff on the

Mr. Whately and Mr. Cole, contrà, were issue raised by “not guilty” as to the third heard in support of these objections.

count, and assessed the damages at 1501. They Lord Denman, C. J. On an application of also found for the plaintiff on the issues raised this sort, the answer, that the town clerk had on the special pleas, but for the defendant on heen dismissed for misconduct, would, if fully the issues raised by the plea of not guilty to the made out, constitute a justification to the town first and second count. Subsequently, judgcouncil. The jury said there was no such mis- ment was arrested on the third count, and the conduct as would justify dismissal. But it did defendant got the postea, On the taxation not follow thence that the town council had before the Master, the defendant contended, not acted on a bona fide belief that he had been that as judgment had been arrested on the guilty of misconduct such as to justify dis- third count, that he had succeeded on the missal. It was impossible, therefore, to say whole record, and therefore was entitled, not that the town council had been altogether only to his costs on the issues raised by the wrong. Then comes the question whether Mr. plea of not guilty to the first and second count, Edgington was employed by the town council to but also to the general costs of the cause. On the extent to which he had gone in defending the other hand, the plaintiff contended that he them from the claim made by Mr. Simpson. was entitled to the costs caused by the pleas of I think Mr. Edgington was justified in acting as justification, and that the defendant was only he did. We cannot help seeing, from all the entitled to the costs of the issues found for him, circumstances of this case, that the dismissal of and that neither party was entitled to the Mr. Simpson was on a fair and reasonable be- general costs of the cause. The Master allowed lief that he had been guilty of misconduct, and the plaintiff the costs of the issues raised by the that therefore Mr. Edgington was justified in pleas of justification, but gave the defendant going the length he did in resisting the claim his costs on the issues raised by “not guilty for compensation. Then, with respect to the to the first and second count, and also the notice of the meeting at which the order was general costs of the cause. made, that was a notice to enter upon the con- Hugh Hill having, on the 16th of January, sideration of the accounts of the borough, and obtained a rule nisi calling on the defendant to the parties who impeach this order have no show cause why the Master should not review right to assuine that no bill of costs, (which his taxation. clearly might form part of the accounts,) would Hoggins now (Feb. 1st,) showed cause, and be considered. The parties now applying to contended, that although there were no authothe court should have attended the meeting to rities on the subject, yet that it was always the see what was done, and have resisted the vote practice that one of the parties to an action got for payment

The non-delivery of the at- the general costs of the cause, and that upon torney's bill is not an objection at the present the present state of the postea the defendant time, it ought to have been made at the time, was entitled to the general costs. Here the deand then it could only have been a ground for fendant had obtained the verdict of a jury on postponing the payment. This rule, therefore, the only causes of complaint which the plaintiff will be discharged with costs.

had any right to carry down to trial, and as to Patteson, Wightman, and Erle, J.’s, con- the other, the court, by arresting the judgment, curred. Rule discharged with costs. had said that it was one not maintainable in law,

and ought never to have been placed on the • 4 Q. B. R. 893. b 10 Adol. & Ellis, 711. record. This being so, the defendant had sub5 Q. B. R. 477.

d Id. 862.


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