248 Analytical Digest of Cases: Privy Council. SLAVE TRADE. Court of London, decreeing a divorce, à vinculo, in a suit of nullity of marriage, may be im- Abolition Act.-A party attached for nonpaypeached 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 disBut 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, c. 113, the captors of a vessel employed contrary to the provisions of the act, are only entitled to a moiety of the proceeds of the sale thereof, after deducting the costs of the prose An allegation, impeaching a sentence, and pleading facts which, if proved, might amount to fraud, but not collusion, rejected. Meddowcroft v. Huguenin, 4 Moore, 386. Case cited in the judgment: Thomas v. Kette-cution. Jennings v. Hill, 4 Moore, 369. riche, 1 Ves. sen., 333. OFFICER OF THE COURT. By a general order, made on the equity side of the Supreme Court of Madras, it was ordered that, "whenever it shall appear that the property of any infant is unprotected, and not secured for his or her benefit, the registrar shall, with the previous consent of the court, or a judge, institute proceedings on behalf of such infant, for the purpose of protecting his or her person or property." In pursuance of this order, the Registrar of the Supreme Court, upon petition, obtained an order giving him liberty to file a bill in the equity side of the Supreme Court, as the next friend, and on behalf of infants, for an account of the estate of their father, who died intestate, against their mother, the administratrix; and notwithstanding an appeal against such order, such bill was filed, to which the defendant put in a plea, which being overruled, a further appeal from such decision was interposed to her Majesty in council. By the practice of the Supreme Court, the registrar is entitled to a commission of 5 per cent. on all sums of money paid into court. Held, by the Judicial Committee, that the order of the equity side of the Supreme Court, being made under the general jurisdiction of the Supreme Court, and not under the stat. 2 & 3 Vict. c. 34, was void, it being against public policy to allow an officer of the court to institute suits in the conduct of which he might have a direct personal interest, and the orders made in pursuance thereof reversed. Kerakoose v. Serle, 4 Moore, 459. PATENT. Term of letters patent, for refining sugar by filtration through beds of granulated animal charcoal, extended for six years, on the ground of the advantage the public had reaped from the discovery, notwithstanding that the novelty of the invention was small. Where the party applying for an extension is resident abroad, and has no manufacture in England, advertising in the newspapers published in the towns or county where the persons to whom he has granted licenses are resident, is a sufficient compliance with 5 & 6 W. 4, c. 83, s. 4. Derosne's Patent, in re, 4 Moore, 416. See Church-Rate. RATES. WILL. 1. Domicile.Republication.—A domiciled Englishman (while resident at Milan) executed, in October, 1838, a codicil, disposing of personal property situate in the United States of America. This codicil was holograph, signed, though not attested, but was well executed according to the Austrian law. Held, by the Judicial Committee (affirming the judgment of the Prerogative Court,)-1st, that the validity of the codicil was to be governed by the law of the domicile; and 2ndly, that the provisions of the 1 Vict. c. 26, applied to testamentary papers made in foreign countries by a domiciled Englishman. Testator, by his will, made in 1823, directed his executors to pay any legacies he might afterwards give by any testamentary writing, witnessed or not; and, after making various codicils, he, in 1838, made a codicil, which was signed, but not attested; and by a further codicil, in 1839, duly signed and attested, he declared that he thereby "ratified and confirmed his said will and codicils. Held, that such general reference was not sufficient to identify and incorporate the codicil of 1838 in that of 1839, and probate of such codicil refused. The stat. 1 Vict. c. 26, extends generally to wills made previously to the passing of the act, where alterations have been made affecting such bills, subsequent to the 1st of January, 1838. Croker v. Marquis of Hertford, 4 Moore, 339. Cases cited in the judgment: Brooke v. Kent, 3 Moore, 334; Andrews v. Turner, 3 Q. B. 177; Wilson v. Marryatt, 8 T. R. 31; Maltass v. Maltass, 3 Curt. 231; Habergham v. Vincent, 2 Ves. jun., 231; Smart v. Prujean, 6 Ves. 561. 2. Evidence. The factum of a will, held under the circumstances of the case, to be sufficiently proved, though one of the subscribing witnesses deposed that he did not see all that the testator wrote, only the large initials of his christian name; and the other witness stated, that she did not see what he wrote, but that he acknowledged the paper to be his will, in their joint presence. Evidence of illiterate witnesses as to acts affecting their interests, when opposed to the probable acts of an educated man, no fraud being in question, is to be received with great caution. The bill contained alterations and erasures, affecting the amount and 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 impeachevidence 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 erasures 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 name and bear the arms of Trevor. And also, upon the like condition to that I have made in my will of my Sussex estate, so far as the change of circumstances will permit, that the Case cited in the judgment: Larkins v. Larkins, 3 B. & P. 16. RECENT DECISIONS IN THE SUPE- said estate shall go over to the party next en RIOR COURTS. : THE following is the opinion delivered by the judges on the question of law propounded to them in this case by the House of Lords :Lord Chief Justice Wilde. The question proposed by your lordships has reference to a statement to the effect, that George Rice Rice Trevor died leaving no son, but leaving one daughter who had a son who attained 21; and that the mother and son have agreed to sell the Bedfordshire estates to A. B., and to make a good title thereto, and have brought an action against A. B. upon their agreement. And the question proposed by your lordships is, whether the only daughter of George Rice Rice Trevor, and her son, can, with the concurrence of the trustees, make a good title to those estates? 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 Bedfordshire estate unto the said Henry Brand, his heirs and assigns for ever." The question upon this devise is, whether under the word "issue "" or the words "issue in tail male" sons are only comprised, or whether daughters as well as sons were intended to take? "" in The trusts in the will being executory, it is clear George Rice Rice Trevor was not entitled to more than a life estate, and that his issue, whether males only or males and females, were to take by way of remainder as purchasers. It is not contraverted that the word "Issue its ordinary and proper sense includes all descendants, however remote, and includes females as well as males. That such is the proper construction of that word is too well established to render it necessary to refer to authorities upon the subject. In this will, therefore, "Issue as a word of purchase is synonymous with "children." But it is contended on the part of the appellant that the "issue" in this will cannot be in any manner severed in construction from the words "in tail male" which follow it; and that the words "issue in tail male" must be considered as one entire and indivisible expression, describing the first takers and the estate to be taken; and, 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 sethe exclusion of the daughters. cond will of Lord Hampden, which devise is expressed in the following words: "I give and devise unto General the Hon. Henry Brand (meaning the appellant) and Joseph Rogers, gentleman, and their heirs, all and every my real estates in the county of Bedford, whether freehold or copyhold, upon trust, that they or the survivor of them, or his heirs, do and shall In answer to that question I have to state, that it is the unanimous opinion of the judges who heard the argument at your lordships bar, that a good title can be made by the parties mentioned in the question to the estates therein referred to. The respondents contend that the word "issue" is used in its natural and admitted ordinary sense, including females, and that such sense is not varied, or in any respect affected by the words "in tail male." That the word "issue" expresses the parties to take, and the words "in tail male" the estate to be taken. It seems to be agreed that the construction of the devise as to the point submitted to the judges is not affected by the words "in strict settlement;" and we think that it is not. The devise, if read in the manner contended for by the appellant, must be deemed to be framed in a very untechnical and inaccurate manner. The issue are to take as purchasers, and the word "issue" is a proper and apt word to 250 Superior Courts: House of Lords.-Lord Chancellor. describe those who are so to take; but "issue in tail male" is not an usual or apt form of expression to describe the first taker of an estate tail. "Issue in tail male" is an expression only correct when used in reference to an estate already settled; "Issue in tail male" being the ordinary and correct form of expression to describe one taking by descent under an estate tail vested in the ancestor; and the words "issue in tail" are used in this sense and as contrasted with the ancestor or first taker by Lord Coke in the passages which have been referred to and in the text books. Lit. Sec. 638-642. Co. Lit. 326 b. 327 a. 327 b. The question in this case seems to be narrowed to the point, whether in construing this devise the word "issue" is to be read in its ordinary sense, as including females as well as males, or whether, by the addition of the words "in tail male" in immediate connexion with the word "issue," or from other parts of the will, it is manifested that the word "issue" was not used in such ordinary and usual sense, but in a restricted and limited sense, as including males only. It cannot be necessary to cite any of the numerous determinations in which the rule of construction has been recognised in the courts of law and equity, and affirmed by your lordships' house, that in a will, words, whether technical or otherwise, are to be understood as used in the sense ordinarily and properly applied to them, unless from the whole context of the will it shall appear satisfactorily and clearly that the words to be construed have been used, and were intended to be understood in some other sense. issue, there seems no good reason according to the ordinary rules of construction for deeming this devise ambiguous. The argument on the part of the appellant to prove that the devise in question ought to be read as including males only has been mainly derived from other parts of the will, and especially from those parts which refer to the disposition and limitations relating to the Sussex estates contained in the first will, and in showing that the testator has limited those estates to males only, and from thence inferring that the testator intended to limit the Bedfordshire estates also to males only. We think it would be dangerous, and lead to a great uncertainty in construing a devise relating to one estate, to infer an intention not expressed in it, from the intention apparent in regard to a totally independent estate, and devised in terms altogether different; but we see no ground for inferring an identity of intention on the part of the testator in regard to the two estates. Indeed as it appears that the first will is distinctly, aptly, and correctly framed to effectuate the intention of limiting the Sussex estates to descendants through males only, the reference to the terms of that will appears to the judges to afford arguments rather opposed to the appellant's construction of the devise in question, than in support of it. The numerous and important authorities regarding the true rules of the construction of wills, determine that a departure from the ordinary meaning of the words contained in it should only be adopted from necessity and in cases where the context or other parts of the 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, and that such meaning is not controlled or affected by the words "in tail male" which immediately follow the word "issue," or by any other part of the will. The words" issue in tail male" were a convenient and not incorrect form of expression to denote the first purchasers, and the estate to be taken. The takers by the word "issue." The estate to be taken by the words "in tail male." There is no reason against an estate "in tail male" being limited to a female, or an estate in tail female to a male, and the limitation of an estate tail of one kind or the other has no necessary effect in denoting the sex of the first taker, the effect of the words of such limitation not being to describe the first taker, but simply to make the course of descent from such first taker. If the word "issue" may be correctly construed as describing the first purchasers, and the words "in tail male" be a correct legal description of the estate to be taken by such purchasers, there should be found some very distinct and substantial reason for so construing the entire expression, as to render it an incorrect form of devise. Therefore, as an estate in tail male may be limited to a daughter as well as to a son, and as daughters come within the description of those decisions, many of which have received the sanction of this house, the judges are unanimously of the opinion I have before expressed, namely, that the only daughter of George Rice Rice Trevor and her son mentioned in the statement, with the concurrence of the trustees, can make a good title to the Bedfordshire estates. Lord Chancellor. Cope v. Russell. May 22nd, 1847. SUBSTITUTED SERVICE. In a suit, the object of which was to render a judgment obtained in an action at law a charge upon the real estate of the defendant who was out of the jurisdiction, the court refused to allow substituted service of subpæna upon a person who had been the defendant's attorney in the action, but who was not proved to be still his agent. application for leave to serve the defendant's Mr. R. Levinge Swift stated that this was an attorney in a previous transaction with a subpœna to appear to the plaintiff's bill, under the obtained judgment against the defendant in an following circumstances:-The plaintiff had action at law, to restrain which the defendant had filed a bill which was ultimately dismissed, Superior Courts: Lord Chancellor.-Vice-Chancellor.-Queen's Bench. 251 as against Chadwick and Nicholson, and that Nicholson might be restrained from proceeding with his action. To this bill Nicholson demurred for multifariousness. and the plaintiff now sought by his present suit the one for 1,500l. endorsed over to Nicholson; to render such judgment a charge upon the de- it also charged that Nicholson was a trustee fendant's real estate. The defendant was out for Chadwick, and prayed for a general account of the jurisdiction, and the party upon whom it was wished to effect the substituted service had been his attorney in the said action, and his solicitor in his suit to restrain it. Mr. Swift read extracts from a correspondence, but could not produce any evidence that this party still acted for the defendant. He contended that the subject-matter of the action and this suit was the same, and he cited Hobhouse v. Courtney, 12 Sim. 140; Hornby v. Holmes, 4 Hare, 306; and Murray v. Vipart, 1 Phill. 521. Mr. Wickens, in support of demurrer, contended that as the bill prayed for a general account, and defendant Nicholson had nothing to do with any of the other transactions which took place between plaintiff and Chadwick, it was clearly multifarious. He cited Miller v. Walker, 9 Jurist 197. peared from the bill that plaintiff was entitled to such an account. He cited Attorney-General v. Corporation of Poole, 4 Myl. & Cr. 17; and Turner v. Robinson, 1 Sim. & St. 313. The Lord Chancellor said, that there must be Mr. Prior, contrà, urged that defendant Nisomething to show that the party upon whom cholson was so mixed up with all the transservice was to be substituted had been autho- actions that had taken place between plaintiff rised by the defendant to accept it. In Hob- and Chadwick, that the only remedy plaintiff house v. Courtney, (suprà,) there was a power had was to have a general account as against of attorney given; and in Murray v. Vipart, both defendants, and that it sufficiently ap(suprà,) there was an acting in the same suit. But here the suit was at an end, and the correspondence merely showed that the former attorney and solicitor now merely considered himself as a channel of communication between The Vice-Chancellor said it appeared to him the plaintiff and defendant. From the short that all the matters alleged in the bill, except statement of the facts in the report of Hornby as regarded the transaction with respect to the v. Holmes, it was difficult to ascertain them, bill for 1,500l., were things with which the but in Hobhouse v. Courtney all the cases had defendant Nicholson had nothing to do, and been carefully reviewed by the Vice-Chancellor that the claim which arose on that bill for of England, and if the former case went fur- 1,500l. was totally distinct from any account ther, his lordship should not be disposed to as between plaintiff and defendant Chadwick. follow it. Nothing could be more dangerous If the plaintiff had any equity as against than to make such an order as was now re- Nicholson, he might have brought it forward quired in the absence of any evidence showing by a bill in equity. Demurrer allowed, with that the party sought to be served was the de- costs. fendant's agent; but if any further evidence should be procured, the plaintiff might make a short application to the court. Motion refused. Vice-Chancellor of England. Knill v. Chadwick. June 21, 1847. DEMURRER.-MULTIFARIOUSNESS. Where a bill prays for a general account, as against two defendants, and it appears that one of them is connected with the plaintiff, merely as being the endorsee of a bill of exchange accepted by plaintiff. A demurrer for multifariousness allowed. Queen's Bench. Doe dem. Hemming and others v. Barratt. In an action of ejectment in which a verdict was found for the defendant, costs taxed, and the Master's allocatur for the amount indorsed on the consent rule, which was served on the attorney for the lessors of the plaintiff, and the amount not being paid on demand made on one of the lessors of the plaintiff, the defendant issued a writ of fieri facias. Held, this was an order for the payment of costs under the 1 & 2 Vict. c. 110, s. 18, and the court discharged a rule obtained for the purpose of setting aside the writ for irregularity. In this case, the plaintiff had been engaged in certain railway contracts with Chadwick, and money transactions had taken place between them, and a bill for 1,5007. drawn by Chadwick was accepted by plaintiff, and endorsed to Nicholson, another defendant. Nicholson commenced an action against plaintiff, on the bill, upon which plaintiff filed his bill THIS was an action of ejectment in which a in equity, making Nicholson a defendant. The verdict was found for the defendant, but a writ bill stated that various money transactions had of error was pending. The costs were taxed, taken place between plaintiff and defendant Chadwick, and that plaintiff had signed many bills of exchange for which no consideration had been given ; and that one of such bills was and the Master's allocatur for the amount of the costs was made and indorsed on the consent rule, which was served on the attorney for the lessors of the plaintiff, and demand made on 252 Superior Courts: Queen's Bench.-Queen's Bench Practice Court.-Common Pleas. one of the lessors of the plaintiff, there being the notices required by the rule of Easter Term, several. The costs not being paid, a writ of fieri facias issued, in pursuance of the statute 1 & 2 Vict. c. 110, s. 18. A rule nisi was afterwards obtained to set aside the writ of fi. fa. for irregularity, with costs. Mr. Wallinger showed cause, and contended that the writ of fi. fa. had properly issued in pursuance of the statute 1 & 2 Vict. c. 110, s. 18. The cases of Jones v. Williams,a Hawkins v. Benton, are cases of awards where the courts have said that it was not a necessary consequence of the submission to arbitration that any money would become payable. But the cases of Jones v. Williams, Doe v. Bradley, and Hodson v. Patterson, are strong authorities to show that where the master has taxed the defendant's costs on the consent rule, nothing further remained to be done, and that the writ of fi. fa. properly issued. Mr. Hurlstone contrà. It is part of the consent rule that if a verdict shall be found for the defendant, or the plaintiff shall not further prosecute his writ, that the plaintiff shall pay the costs to be in that case adjudged. This depends on a contingency, and contemplates something more being done. [Wightman, J. That is supplied by the master's allocatur.] This is not an order for the payment of costs under the statute of Victoria. The principle of Jones v. Williams is the same, and that objection would apply. The consent rule forms no part of the record, and cannot be made such in any part of the proceedings. Lord Denman, C. J. I do not think that there is any irregularity in these proceedings. The case of Jones and Williams seems to me clearly distinguishable. Patteson, J. In Jones v. Williams it was only the submission to arbitration which was made a rule of court, but this is a common rule for the payment of costs which I think comes within the very terms of the act of parliament. Wightman and Erle, J.'s, concurred. Rule discharged. Queen's Bench Practice Court. Exparte Weymouth. June 7th, 1847. ATTORNEY.-STAMPED CERTIFICATE. NOTICES. Where an attorney has neglected to procure a stamped certificate to practise within twelve months from the time of his admission, the court will, under special circumstances, dispense with his giving the requisite notices under the rule of Easter Term, 1846, and allow him to take out his certificate at once, without payment of any arrears. H. T. Cole moved for a rule calling on the registrar to issue his certificate to the Commissioner of Stamps to enable Mr. T. Weymouth, an attorney of this court, to take out his stamped certificate to practise, without giving 1846. The application was made on affidavits which stated that Mr. Weymouth was admitted an attorney of this court in Easter Term, 1846, and had up to the present time neglected to procure a stamped certificate. Ever since his admission he had been acting as a clerk to his father, an attorney practising at Kingsbridge, Devon. When the new County Courts Act was brought into operation, Kingsbridge was selected as one of the towns in which a district court should be held, and Mr. T. Weymouth was anxious to practise in that court for his father, as he was to do so, having more important professional engagements to attend to. It was, however, sworn that the judges of the district courts, and particularly the judge of the district court holden at Kingsbridge, had decided not to allow any one to address the court or assist a suitor there in any way, unless he were a barrister or a solicitor duly authorised to practise. It was further sworn that Mr. T. Weymouth did not become acquainted with this decision of the judge until too late for him to give his notices pursuant to the rule of court of Easter Term, 1846, so as to enable him to apply at the end of the present term for his stamped certificate to practise; and that it would injure him in his profession of an attorney if he was prevented from practising in said County Court of Kingsbridge until after the next Michaelmas Term. It was also distinctly sworn, that Mr. T. Weymouth had never, either directly or indirectly, practised in his own name or on his own account. It was therefore submitted that, under these circum stances, the court would, if it had the power to do so, dispense with the usual notices, and allow Mr. T. Weymouth to take out his stamped certificate at once. Mr. Justice Wightman, after consulting the Master, granted the rule, and without payment of any arrears. Rule absolute to take out the certificate at once, without giving any notices or paying any arrears. Common Pleas. In re Kinning. Trinity Term, June 4, 1847. SMALL DEBTS ACT.-PAYMENT BY INSTAL MENTS. SUMMONS OR NOTICE TO DEBTOR BEFORE COMMITTAL. A creditor seeking, under the provisions of the Small Debts Act, 8 & 9 Vict. c. 127, s. 1. to obtain an order of committal against his debtor for default in not paying an instalment of his debt at the time duly fixed for that purpose, must first serve a summons or notice on such debtor, stating his intention to apply for such committal, Where therefore a judge, having jurisdiction under the provisions of the said act, granted · a warrant which simply set forth that the debtor had not paid the amount of the first instalment as directed by the order made for that purpose, although the time of the pay |