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246 Society for Promoting the Amendment of the Law.— Tithe Commissioners' Report. tion by the state of those penal colonies, the the suitor or client does not derive an adequate difficulties of the due government of which and direct advantage. were specially suggested by the preceding in- The time has now arrived when your council quiries as to criminal punishments, your coun- is to surrender into your hands the trust you cil commenced an intended series of references have reposed in them. Hitherto its members to the colonial committee, by an inquiry “ as have been annually re-elected, without any to the law and practice relating to colonial change; but it is far from their wish that this judges, in respect to their removal from office." should be considered a matter of course, nor The committee has presented a report which would any individual deem himself aggrieved, has been received with general satisfaction. It if another, better qualified in the opinion of the demonstrates that the present state of the ad- society, should be substituted in his place. In ministration of justice in our vast colonial em- some instances, the pressure of other avocapire is in many respects unsatisfactory, and re- tions has prevented some of the members of quires careful, fearless, and unprejudiced in the committee of management and chairmen of quiry. That judicial independence, in all committees from giving to the society all the jurisdictions, is the first guarantee of good attention they would have desired. government, is a proposition so universally With every wish for your progress and prosadmitted, that your council would not pause to perity, and the fullest determination on the comment on it, but for the opportunity of sug- part of those, who may have the honour to be gesting that slight inconveniences arising from re-elected, to continue their exertions, the want of subordination are of little moment, council takes its leave. and of easy remedy, compared with the danger to be apprehended from any derogation from the judicial character. Your council trust that

TITHE COMMISSIONERS' REPORT. this committee will continue the deliberations which it has so well commenced.

THE Tithe Commissioners have made the Your council regret that the committee on following Report, addressed to Sir George the law of debtor and creditor has made no progress; and that the numerous bills on this Grey, the Home Secretary:intricate subject which have been brought into “ It is our duty to report to you the progress parliament during the present session are not of the Commutation of Tithes in England and destined to produce any immediate advantage to Wales, to the close of the year 1846. the trading and other classes interested in them. “We have received notices that voluntary

The progress, however, of a measure of the proceedings have commenced in 9,627 tithe last session in some degree diminishes that re- districts : of these notices 4 were received durgret. The council has viewed with great plea- ing the year 1846. sure the establishment of a system of local We have received 7,044 agreements, and judicature throughout England and Wales; lconfirmed 6,749 : of these, 13 have been reand, though it may be premature to speak at ceived, and 45 confirmed, during the year present of the ultimate operation of that mea- 1846. sure, we may be permitted, from all indications, “ 6,072 notices for making awards have been to anticipate great benefit to the community, issued, of which 5$3 were issued during the without any real loss to the profession.

It is indeed with very considerable satisfac- “We have received 4,470 drafts of compultion that your council is able to trace a great sory awards, and confirmed 3,878: of these, abatement in that species of self-interested 554 have been received, and 502 have been conopposition, which in former times so injuriously firmed, during the year 1846. impeded the amendment of the law. With a “We have received 9,565 apportionments, few exceptions, lawyers are now taking larger and confirmed 9,262; and of these, 570 hare views of professional protection ; they find that been received, and 602 confirmed, during the in most instances the public interest is their year 1846. own; and in the few cases of exception, or “ In 10,627 tithe districts, as will be seen supposed exception, they feel that a class-inter- from the above statement, the rent-charges to est cannot be permitted to stand in the way of be hereafter paid, have been finally established social progress. That laws are to be made by confirmed agreements or confirmed awards. for the benefit of the people, and not of the “ We have in our possession agreements and lawyers, is now an admitted truth: prolix drafts of awards as yet unconfirmed, which will pleadings and conveyances, useless and multi- include 887 additional tithe districts; and make farious appeals, motions and petitions of course, a total, when completed, of 11,514 districts in unattended warrants, unissued writs, fictitious which the tithes will have been commuted. procedure, unearned fees and sinecure offices, “ We have to repeat the assurance which we have had their day; and though a few yet re- have happily been able to give in all our former main, your council fully anticipate, that at no reports, that the process of commutation are distant day, they will be extinguished, (cer- going on, on the whole, tranquilly and satistainly that no new claims to compensation will factorily, be created,) and that they will yet see the time, “ We have adverted, in three former reports, when no judge, officer, advocate or attorney, to the state of the law under what is called Lord will look to profit from any source, from which Tenterden's Act.

year 1846.


Analytical Digest of Cases : Privy Council.

247 “We have to express our deep regret that

DIVORCE. that law remains as unsatisfactory, as ever. Colonial Appeal.- Practice.—The Charter of While this uncertainty continues, it is impos- Justice of the Mauritius gives no right of apsible for us to adjudicate with any justice to the peal to the Queen in council from a sentence of parties in very many cases which await our de-divorce. cision, and in which proceedings are necessarily But the Crown can, upon special petition suspended.

for that purpose, grant such leave. Appeal “After our preliminary adjudications, some granted by the Cour d'Appel in the Mauritius litigation in the superior courts and some cases from a sentence of divorce, á vinculo matrimonii, of contested and protracted appointments will upon petition of respondent, discharged as inassuredly follow. We have repeatedly ex-competent. But on special petition, leave to plained and lamented the very serious delays appeal granted by the Judicial Committee, which must thus result from the continued upon terms of the appellant's lodging his postponement of any rule, either legislative or printed case within a given time, or the appeal judicial, wbich we can apply to these cases. to stand dismissed. D’Orliac v. D’Orliac, 4 (Signed) T. Wentworth Buller, Moore, 374. “ RD. Jones."

See Will, 1.


Practice. The rejection of a witness in the

course of the hearing of a cause in the EccleIn our last number we closed the Series of

siastical Court, on the ground of interest, is

not of itself an appealable grievance, the hearthe Digest of Cases in the Courts of Equity : ing being one continuous act, and an appeal and it may here be convenient to refer to the being competent, after sentence, from any comseveral sections in the present volume of that partment of the cause. part of the Digest. They are as follow :-

A party in a cause in the Ecclesiastical Law of Wills, p. 56.

Court, in consequence of the rejection by the

court of a material witness, withdrew himself Law of Property and Conveyancing, p. 74. from the further contest of the cause; the Construction of Statutes, p. 101.

judge decreed the cause in pain of his conPrinciples of Equity, p. 127.

tumacy. Held, by the Judicial Committee, that

such withdrawal was not contumacious, so as Pleadings, p. 148.

to preclude him from his right of appeal from Practice, p. 173.

the sentence. Handley v. Edwards, 4 Moore, Evidence, p. 199.

407. Law of Attorneys and Costs, 224.

Cases cited in the judgment: Barry v. Butlin, 1

Moore, 98 ; Harrison v. Harrison, 3 Curt. i.
Priby Council.

And see Marriage,




By the stat. 59 G. 3.c. 134, s. 14, it is enacted,

See Will, 2. that it shall be lawful for the church-wardens of any parish, with the consent of the vestry, to raise and borrow money upon the credit of

Lower Canada.-Practice.-Registration.the church-rates of any parish, for the purpose being indebted to J. W., transferred 75 pro

The firm of S. & W. H., in Lower Canada, of defraying the expenses of any church or chapel. Held, by the Judicial Committee of missory notes to a factor, on his account. At the Privy Council, (reversing the judgment of

the time of the transfer S. & W. H. were en the Arches Court of Canterbury,) not to autho

déconfiture. A saisée arrêt having subserise churchwardens to borrow money upon the quently issued by order of the creditors of S. & credit of the church-rates, for repayment of a

W. H., the 75 notes in the hands of the factor debt incurred in past years for repairs to the were attached. Held, by the Judicial Comparish. Piggott v. Bearblock, 4 Moore, 399.

mittee, that the transfer having taken place be

fore the execution of the saisée arrêt, was valid Case cited in the judgment: Rex v. Church- by the French law in force in Lower Canada. wardens of Dursley, 5 d. & E. 10.

A commission for examination of witnesses in COLONIAL APPEAL.

Canada, to prove such déconfiture, in the cirPractice.- Appeal allowed, under the 7 & 8 cumstances, refused. Vict. c. 69, direct from the Court of Assize of

Semble. By the old French law, prevailing the Island of Jamaica, to her Majesty in council, in Lower Canadá, all Ordonnances not regiswithout bringing a writ of error in the Court tered are void. Hutchinson v. Gillespie, 4 of Errors (the intermediate court) in the Moore, 378. island.

Such appeal is not of course, but requires special grounds to be shown, to warrant the ap- la sentence passed in 1816, by the Consistory

Spiritual Court. -Sentence.--The validity of plication. Barnett, in re, 4 Moore, 453.





Analytical Digest of Cases : Privy Council. Court of London, decreeing a divorce, à vinculo,

SLAVE TRADE. in a suit of nullity of marriage, may be im- Abolition Act. A party attached for nonpay, peached in a suit brought in 1842, in the Pre- ment of costs decreed against him in an appeal rogative Court, for granting letters of adminis- under the Slave Trade Act, in which the Crown tration, by the issue of the marriage, pro- and the captors were the respondents, upon nounced null and void by the sentence of 1816. supersedeas by the Crown, ordered to be dis

But in order to set aside such sentence, col- charged out of custody, notwithstanding the lusion between the parties, and fraud practised captors' objection to the crown receiving costs thereby upon the court, must be satisfactorily out of the proceeds of the sale of the vessel shown.

condemned. By the 44th section of 5 Geo. 4, An allegation, impeaching a sentence, and c. 113, the captors of a vessel employed conpleading facts which, if proved, might amount trary to the provisions of the act, are only ento fraud, but not collusion, rejected. Meddow- titled to a moiety of the proceeds of the sale croft v. Huguenin, 4 Moore, 386.

thereof, after deducting the costs of the proseCase cited in the judgment: Thomas v. Kette-cution. Jennings v. Hill, 4 Moore, 369. riche, 1 Ves. sen., 333.

1. Domicile. Republication. - A domiciled By a general order, made on the equity side Englishman (while resident at Milan) executed, of the Supreme Court of Madras, it was ordered in October, 1838, a codicil, disposing of per. that," whenever it shall appear that the pro- sonal property situate in the United States of perty of any infant is unprotected, and not se- America. This codicil was holograph, signed, cured for his or her benefit

, the registrar shall

, though not attested, but was well executed acwith the previous consent of the court, or a cording to the Austrian law. Held, by the judge, institute proceedings on behalf of such Judicial Committee (affirming the judgment of infant, for the purpose of protecting his or her the Prerogative Court,) — 1st, that the validity person or property.” In pursuance of this of the codicil was to be governed by the law of order, the Registrar of the Supreme Court, the domicile ; and 2ndly, that the provisions upon petition, obtained an order giving him of the 1 Vict. c. 26, applied to testamentary liberty to file a bill in the equity side of the papers made in foreign countries by a domiciled Supreme Court, as the next friend, and on be- Englishman. half of infants, for an account of the estate of

Testator, by his will, made in 1823, directed their father, who died intestate, against their his executors to pay any legacies he might mother, the administratrix; and notwithstand- afterwards give by any testamentary writing, ing an appeal against such order, such bill was witnessed or not; and, after making various filed, to which the defendant put in a plea, codicils, he, in 1838, made a codicil, which was which being overruled, a further appeal from signed, but not attested; and by a further such decision was interposed to her Majesty in codicil, in 1839, duly signed and attested, he council.

declared that he thereby "ratified and conBy the practice of the Supreme Court, the firmed his said will and codicils. Held, that registrar is entitled to a commission of 5 per such general reference was not sufficient to cent. on all sums of money paid into court. identify and incorporate the codicil of 1838 in Held, by the Judicial Committee, that the order that of 1839, and probate of such codicil refused. of the equity side of the Supreme Court, being The stat. i Vict. c. 26, extends generally to made under the general jurisdiction of the Su- wills made previously to the passing of the act, preme Court, and not under the stat. 2 & 3 where alterations have been made affecting such Vict. c. 34, was void, it being against public bills, subsequent to the 1st of January, 1838. policy to allow an officer of the court to insti- Croker v. Marquis of Hertford, 4 Moore, 339. tute suits in the conduct of which he might

Cases cited in the judgment: Brooke v. Kent, 3 have a direct personal interest, and the orders

Moore, 334; Andrews v. Turner, 3 Q. B. 177; made in pursuance thereof reversed. Kerakoose

Wilson v. Marryatt, 8 T. R. 31; Maltass v. v. Serle, 4 Moore, 459.

Maltass, 3 Curt. 231 ; Habergham v. Vincent, 2 Ves. jun., 231; Smart v. Prujean, 6 l'es.

561. Term of letters patent, for refining sugar by filtration through beds of granulated animal

2. Evidence.- The factum of a will, held charcoal, extended for six years, on the ground under the circumstances of the case, to be sufof the advantage the public had reaped from ficiently proved, though one of the subscribing the discovery, notwithstanding that the novelty witnesses deposed that he did not see all that of the invention was small.

the testator wrote, only the large initials of his Where the party applying for an extension is christian name; and the other witness stated, resident abroad, and has no manufacture in that she did not see what he wrote, but that he England, advertising in the newspapers pub- acknowledged the paper to be his will, in their lished in the towns or county where the persons joint presence. Evidence of illiterate witnesses to whom he has granted licenses are resident, is as to acts affecting their interests, when opa sufficient compliance with 5 & 6 W. 4, c. 83, posed to the probable acts of an educated man, 8. 4. Derosne's Patent, in re, 4 Moore, 416.

no fraud being in question, is to be received with great caution. The bill contained altera.

tions and erasures, affecting the amount and See Church-Rate.







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Superior Courts : House of Lords.

249 objects of the testator's bounty, the existence of settle and convey the same to the use of or in which, at the time of the execution, the attest- trust for the Hon. George Rice, son of Lord ing witness could not depose to: Held, by the Dynevor (now the respondent the Hon. George judicial committee, in the absence of all direct Rice Rice Trevor) for life, without impeach. evidence as to the alterations and erasures, that ment of waste, except permissive waste or spolithe presumption of law was, that such altera-ation, with remainder to his issue in tail male, tions and erasares were made after the execu- in strict settlement, upon condition that all tion of the will

, and probate of the will granted person or persons from time to time to come in its original form. Cooper v. Brockett, 4 into possession of the said settled estates do Moore, 419.

and shall, within one year afterwards, take the Case cited in the judgment : Larkins v. Larkins, name and bear the arms of Trevor. And also, 3 B. & P. 16.

upon the like condition to that I have made in

my will of my Sussex estate, so far as the RECENT DECISIONS IN THE SUPE- said estate shall go over to the party next en-,

change of circumstances will permit, that the RIOR COURTS.

titled, or the person for the time being possessed becoming entitled, to the barony of Dynevor; and in default of such issue of the said George Rice, I devise my said Bedford

shire estate unto the said Henry Brand, his Khouse of Lords.

heirs and assigns for ever.” Hon. H. Trevor v. Hon. G. Trevor June 28, The question upon this devise is, whether 1847. under the word

or the words “issue

in tail male ISSUE."

sons are only comprised, or

whether daughters as well as sons were inMALE.”

tended to take ? The following is the opinion delivered by The trusts in the will being executory, it is the judges on the question of law propounded clear George Rice Rice Trevor was not entitled to them in this case by the House of Lords :- to more than a life estate, and that his issue,

Lord Chief Justice Wilde." — The question whether males only or males and females, were proposed by your lordships has reference to a to take by way of remainder as purchasers. It statement to the effect, that George Rice Rice is not contraverted that the word “Issue” in Trevor died leaving no son, but leaving one its ordinary and proper sense includes all dedaughter who had a son who attained 21; and scendants, however remote, and includes fethat the mother and son have agreed to sell the males as well as males. That such is the proBedfordshire estates to A. B., and to make a per construction of that word is too well esgood title thereto, and have brought an action tablished to render it necessary to refer to against A. B. upon their agreement. And the authorities upon the subject. In this will, question proposed by your lordships is, whether therefore, “Issue" as a word of purchase is the only daughter of George Rice Rice Trevor, synonymous with “children.” But it is conand her son, can, with the concurrence of the tended on the part of the appellant that the trustees, make a good title to those estates ?

“ issue in this will cannot be in any manner In answer to that question I have to state, severed in construction from the words " in that it is the unanimous opinion of the judges tail male” which follow it; and that the words who heard the argument at your lordships bar, “issue in tail male” must be considered as one that a good title can be made by the parties entire and indivisible expression, describing mentioned in the question to the estates therein the first takers and the estate to be taken ; and, referred to.

consequently, that the parties thereby desigThe answer to your lordships' question de- nated as the first purchasers are the issue pends upon the construction of the devise of male, or sons of George Rice Rice Trevor, to the Bedfordshire estates, contained in the se- the exclusion of the daughters. cond will of Lord Hampden, which devise is ex

The respondents contend that the word pressed in the following worde: “I give and “issue” is used in its natural and admitted devise unto General the Hon. Henry Brand ordinary sense, including females, and that (meaning the appellant) and Joseph Rogers, such sense is not yaried, or in any respect gentleman, and their heirs, all and every my affected by the words “in tail male.” That real estates in the county of Bedford, whether the word "'issue expresses the parties to take, freehold or copyhold, upon trust, that they or and the words “in tail male” the estate to be the survivor of them, or his heirs, do and shall taken.

It seems to be agreed that the construction * The following judges were also present :

of the devise as to the point submitted to the Mr. Baron Parke ; Mr. Baron Alderson ; Mr. judges is not affected by the words “in strict Justice Patteson : Mr. Justice Coleridge ; Mr. settlement;" and we think that it is not. Justice Coltman; Mr. Justice Maule; Mr.

The devise, if read in the manner contended Baron Rolfe ; Mr. Justice Wightman : Mr. for by the appellant, must be deemed to be Justice Cresswell; Mr. Justice Erle: Mr. framed in a very untechnical and inaccurate Baron Platt; and Mr. Justice Vaughan Wil- manner. The issue are to take as purchasers, and liams.

the word “issue” is a proper and apt word to



Superior Courts: House of Lords.-Lord Chancellor. describe those who are so to take; but “issue issue, there seems no good reason according to in tail male” is not an usual or apt form of the ordinary rules of construction for deeming expression to describe the first taker of an es- this devise ambiguous. tate tail. “Issue in tail male” is an expression The argument on the part of the appellant to only correct when used in reference to an es- prove that the devise in question ought to be tate already settled; “ Issue in tail male” being read as including males only has been mainly the ordinary and correct form of expression to derived from other parts of the will, and espedescribe one taking by descent under an estate cially from those parts which refer to the dispotail vested in the ancestor; and the words sition and limitations relating to the Sussex es“issue in tail” are used in this scuse and as tates contained in the first will, and in showing contrasted with the ancestor or first taker by that the testator has limited those estates to Lord Coke in the passages which have been re- males only, and from thence inferring that the ferred to and in the text books. Lit. Sec. testator intended to limit the Bedfordshire es638-642. Co. Lit. 326 b. 327 a. 327 b. tates also to males only.

The question in this case seems to be nar- We think it would be dangerous, and lead rowed to the point, whether in construing this to a great uncertainty in construing a devise devise the word “issue” is to be read in its relating to one estate, to infer an intention not ordinary sense, as including females as well as expressed in it, from the intention apparent in males, or whether, by the addition of the regard to a totally independent estate, and dewords “in tail male” in immediate connexion vised in terms altogether different ; but we see with the word “issue," or from other parts of no ground for inferring an identity of intention the will, it is manifested that the word “issue” on the part of the testator in regard to the two was not used in such ordinary and usual sense, estates. Indeed as it appears that the first will but in a restricted and limited sense, as includ- is distinctly, aptly, and correctly framed to effecing males only.

tuate the intention of limiting the Sussex It cannot be necessary to cite any of the estates to descendants through males only, the numerous determinations in which the rule of reference to the terms of that will appears to construction has been recognised in the courts the judges to afford arguments rather opposed of law and equity, and affirmed by your lord- to the appellant's construction of the devise in ships' house, that in a will, words, whether question, than in support of it. technical or otherwise, are to be understood as The numerous and important authorities reused in the sense ordinarily and properly garding the true rules of the construction of applied to them, unless from the whole context wills, determine that a departure from the ordiof the will it shall appear satisfactorily and nary meaning of the words contained in it clearly that the words to be construed have should only be adopted from necessity and in been used, and were intended to be understood cases where the context or other parts of the in some other sense.

will satisfactorily manifest that the language of We are of opinion that the word “issue " the will has been used in some other than such was used in the present will in its ordinary ordinary sense, and adopting the principles of sense, and comprised females as well as males, those decisions, many of which have received and that such meaning is not controlled or the sanction of this house, the judges are unaaffected by the words “in tail male” which nimously of the opinion I have before expressed, immediately follow the word “issue,” or by namely, that the only daughter of George Rice any other part of the will.

Rice Trevor and her son mentioned in the The words “ issue in tail male” were a con- statement, with the concurrence of the trustees, venient and not incorrect form of expression to can make a good title to the Bedfordshire esdenote the first purchasers, and the estate to be tates. taken. The takers by the word “issue.” The estate to be taken by the words “in tail male.”

Lord Chancellor. There is no reason against an estate “in tail male” being limited to a female, or an estate

Cope v. Russell. May 22nd, 1847. in tail female to a male, and the limitation of an estate tail of one kind or the other has no In a suit, the object of which was to render a necessary effect in denoting the sex of the first judgment obtained in an action at law a taker, the effect of the words of such limitation

charge upon the real estate of the defendant not being to describe the first taker, but simply who was out of the jurisdiction, the court to make the course of descent from such first

refused to allow substituted service of subtaker. If the word “issue" may be correctly construed as describing the first purchasers,

pana upon a person who had been the de

fendant's attorney in the action, but who and the words “in tail male” be a correct legal was not proved to be still his agent. description of the estate to be taken by such purchasers, there should be found some very application for leave to serve the defendant's

Mr. R. Levinge Swift stated that this was an distinct and substantial reason for so construing attorney in a previous transaction with a subthe entire expression, as to render it an incorrect form of devise.

pæna to appear to the plaintiff's bill, under the Therefore, as an estate in tail male may be obtained judgment against the defendant in an

following circumstances:- The plaintiff had limited to a daughter as well as to a son, and action at law, to restrain which the defendant as daughters come within the description of had filed a bill which was ultimately dismissed,


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