378 Analytical Digest of Cases: Common Law Courts. FEME COVERT. A feme covert who succeeds on a plea in bar of coverture, is entitled to costs. Findley v. Farquharson, 4 D. & L. 185. INTERPLEADER. Issue.-Judge at chambers.-Where a judge at chambers has directed an interpleader issue, any subsequent application as to costs, &c., must be made to the same judge, and not to the court. Marks v. Ridgway, Collins v. Ridgway, 34 L. O. 255. JUDGMENT AS IN CASE OF A NONSUIT. Costs. Semble, that a defendant is not entitled to judgment as in case of a nonsuit, when the plaintiff has allowed two assizes to elapse without proceeding to trial after issue joined on a feigned issue under the Tithe Commutation Act, 6 & 7 W. 4, c. 71, s. 46, but should move for the costs of the action under that section. The discretion as to allowing costs in such a case is to be exercised in accordance with the general rule which gives costs to the successful party, unless there be special circumstances to justify a departure from such general rule. When, therefore, the plaintiff declined to proceed to trial, because a decision of the court had so narrowed the issue as to render it inexpedient for him to incur the expense of a trial: Held, that the defendants were entitled to their Tomlinson v. Boughey, 2 C. B. 844. costs. MANDAMUS. of a cause on payment of costs of the day, he must give notice of taxation of such costs, otherwise the other party may go on to trial. Waller v. Joy, 16 M. & W. 60. POSTPONEMENT OF TRIAL. Appointment to tax. Where a defendant obtains a judge's order to postpone a trial on payment of costs, he should serve an appointment to tax with the order; and where he omitted to do so, and the plaintiff treated the order as a nullity, and proceeded to trial, the court refused to set aside the verdict so obtained, except upon payment of costs by the defendant, Waller v. Joy, 4 D. & L. 338. See Witness. REGISTRATION APPEAL. Effect of judgment.-After the court has granted costs on the final determination of a registration appeal, it will not entertain an application to rescind the order with respect to costs. Gale v. Chubb, 33 L. O. 355. REMANET. 1. The costs occasioned by a cause being a remanet are costs in the cause not taxable as costs of the trial, on a rule for a new trial on payment of costs. Bentley v. Carver, 2 C. B. 817. 2. In an action of trespass the defendant pleaded four pleas, upon which issues were joined. The cause was entered for trial at the assizes, and made a remanet. The defendant afterwards obtained an order to amend one of 5 & 6 W. 4, c. 76, s. 92.-Certiorari. —The the pleas, and the cause was tried at a subsetown council of L. dismissed A., the town clerk, and refused to allow him compensation.quent assizes, where a verdict was given for the defendant on the amended plea (which covered A mandamus issued, and the town council re- the whole cause of action) and for the plaintiff turned that they had dismissed A. for miscon- on the other pleas: Held, on motion to review duct, and set out the grounds of dismissal. the taxation, that the plaintiff was entitled to The return was traversed, the jury found a the costs of the remanet. Walker v. Blacklock, verdict for A., and a peremptory mandamus 4 D. & L. 4. issued to award compensation. Held, that the town council, acting under a bona fide supposition that A. had been guilty of misconduct, the costs of these proceedings were properly allowed out of the borough fund, under the 92nd section of 5 & 6 W. 4, c. 76. That a retainer given by the town council to their attorney to show cause against the writ of mandamus, was sufficient to justify him in the subsequent proceedings taken in resisting the claim for compensation. It is no objection to this order returned by certiorari, that no bill of costs had been properly delivered. A notice of a meeting to take into consideration the accounts of the borough is sufficiently explicit; at all events, the party objecting should have attended the meeting, and there have objected to the payment of these costs. The Queen v. The Town Council of Litchfield, 34 L. O. 104. NOTICE OF TAXATION. Postponement of trial.-Where a party obtains an order for the postponement of the trial SEVERAL ISSUES. In an action on the case for defamation, the declaration contained three counts. At the trial the verdict was for the defendant on the two first counts, and for the plaintiff on the third count, with 1501. damages: subsequently the judgment was arrested on the third count: Held, that the defendant was only entitled to his costs of the issues found for him, and not to the general costs of the cause. James v. Brook, 34 L. (. 105. SPECIAL CASE. 1. Where, upon the moving for a new trial, the parties agree to state a special case, (nothing being said about the costs, but no case is utlimately agreed upon, the costs of such abortive case are not costs in the cause. Foley v. Botfield, 16 M. & W. 65. mended a special case, which was acceded to 2. Where, after verdict, the court recomby both parties, but which was never finally settled, by reason of the defendant's default: Held, that the plaintiff, who held the general costs of the cause, was not entitled to the costs Analytical Digest.-Superior Courts: Lord Chancellor. 379 of the abortive special case. Foley v. Botfield, RECENT DECISIONS IN THE SUPE4 D. & L. 328. SUGGESTION ON RECORD. See Trespass. SUMMONS AT CHAMBERS. Costs after abandonment.-After a summons obtained before a judge at chambers has been RIOR COURTS. REPORTED BY BARRISTERS OF THE SEVERAL COURTS. Lord Chancellor. Jenkins v. Jenkins. July 29th, 1847. abandoned by the party obtaining it, this court NEW ORDERS (NO. 68).—LEAVE TO AMEND. will not entertain an application to compel such TAXATION. Arbitration. After issue joined in an action on the case for diverting a water-course, "all matters in difference in the cause "" were re ferred by a judge's order to arbitration, "the costs of the said suit to abide the event of the award;" but no power was given to the arbitrator to certify under the 3 & 4 Vict. c. 24, s. 2. The arbitrator found for the plaintiff on all the issues, and assessed his damages at 6d.; and the Master thereupon allowed the plaintiff the full costs: Held, upon motion to review the taxation, that the court would construe the meaning of the parties to be, that the 3 & 4 Vict. c. 24, s. 2, should not apply; and that, therefore, the taxation was correct. Griffiths v. Thomas, 4 D. & L. 109. See Notice of Taxation. TRESPASS. -REASONABLE DILIGENCE. Unless reasonable diligence be shown by the plaintiff in moving under the 68th Order of May, 1845, for special leave to amend his bill, the court will refuse such motion when the proposed amendment would entirely alter the frame of the bill and materially affect the other defendants. Mr. Collins moved to discharge an order of the Vice-Chancellor of England refusing the plaintiff leave to amend his bill by striking out the name of a co-plaintiff for the purpose of making the latter a defendant and thus obtaining his evidence in the cause. The bill was filed in October, 1846, with the object of establishing a charge of 100 pounds on a certain estate, under a deed in which the bill alleged that an erasure had been made of the 2 orts and the p, leaving merely the figure and letters of 1 ounds. The answer to the original bill was filed on the 2nd of November, 1846, and denied all knowledge of any erasure, or of the party by whom it had been made, or that it was the settlor's intention to charge the land with the sum alleged in the bill, and submitted that such could not have been his intention, as After notice.—3 & 4 Vict. c. 24.—Suggestion the space between the figure 1 and the letters on the record.--Where, in an action for a tres-ounds was not sufficient for the insertion of 2 pass committed after a notice not to trespass, orts and a p. Notice of motion to produce the the damages recovered are under 40s., and the deed was served in March, 1847, and on the judge at the trial does not certify, the plaintiff 7th of the following June the motion now apis entitled to enter a suggestion on the record of such notice, in order to obtain his full costs. A notice that, unless the defendant removed certain stakes in such a manner as should be pealed against was made by the plaintiff, but was ordered by the Vice-Chancellor to stand over for the purpose of affording to the plaintiff satisfactory to the plaintiff, a further action due diligence in proceeding with the suit since an opportunity of showing that he had used would be brought, is a sufficient notice not to the filing of the defendant's answer. trespass within the meaning of the 3 & 4 Vict. c. 24, with reference to the question of costs in a second action of trespass for continuing to keep up such stakes, Bowyer v. Cook, 34 L. O. 106. TRIAL. The motion was ultimately refused on the 17th of July. Some delay had been occasioned by going before the Master in May last, previously to applying to the Vice-Chancellor. Mr. Collins read an affidavit of the solicitor, stating the dates of several applications and in See Notice of Taxation; Postponement; quiries respecting evidence of the erasure, and Witness. WITNESS. Postponement of trial.-A trial was postponed, on the application of a defendant, from the Summer to the Spring Assizes. Proceedings were afterwards stayed on payment of debt and costs. The court held that the Master was right in allowing subsistence money to a material witness detained by the plaintiff from the time of his first attendance pursuant to the subpoena, to that of settling the action. Evans v. Watson, 4 D. & L. 193. Case cited in the judgment: Berry v. Pratt, 1 B. C. 276 2 D. & R. 424. submitted that the court would permit the amendment upon payment of the costs of the application and on giving security for those which had been incurred by the co-plaintiff, whose name it was now proposed to strike out. He referred to the case of Foreman v. Gray, 9 Beavan, (33 L. O. 452, 586). Mr. James opposed the application on the grounds that due and reasonable diligence had been made by the plaintiff in coming to the court for this order, as he admitted that the answer had been received early in November last, and had been ever since that time aware of the defence. 380 Superior Courts: Lord Chancellor.-Rolls. Mr. Collins in reply said, that such a defence had not been anticipated, and therefore no evidence had been prepared to rebut it. death of John Allen until the year 1842, it appears to have been assumed that the will of John Allen operated to pass the 5,0007. The sum The Lord Chancellor said, that the new was treated as part of his personal estate by his orders lay down certain principles which must executors in a suit of Attorney-General v. bind the court. He thought this the simplest Clarke, instituted in September, 1832, on becase possible for adjudication. The bill rested half of the above charities, and, by an order of on certain erasures; the plaintiff knows early the 7th May, 1842, made upon the death of in November the defence to it, what he has to Lady Allen, the 5,000l. was directed to be prove, and that he must have evidence. Nothing equally divided between the charities. Then, whatever is done, so far as the court is con- however, the want of any appointment of the cerned, until the latter end of May, except sum was discovered and the present suit instimaking inquiries for different persons in va- tuted. Three claimants to the stock now aprious parts of the country, and making a few peared,-1st, the plaintiff as next of kin; 2ndly, simple amendments to the bill. His lordship the representatives of Lady Allen, as entitled to should have thought that 8 or 10 days would a share under the Statute of Distributions; have been amply sufficient for ascertaining and 3rdly, the two charities, contending that the determining what should be done, and there-limitation in the settlement was either a gift to fore considered that the Vice-Chancellor had the personal representatives of John Allen, or come to a right conclusion. The new orders was void for uncertainty, and that in either of were made for defining and expediting the these cases the 5,000l. would pass by the will practice of the court, and must not be departed of John Allen as part of his personal estate, from, unless a strong case for indulgence be This view was also supported by his executors, made out, and where the other side will not be who were interested in preventing the personal prejudiced. In the case last heard by his lord- estate from being diminished, because the costs ship, (Wragg v. Wragg, 357, ante,) the defend- of the previous suit had been apportioned beant could not possibly be injured by granting the tween the real and personal estate, upon the indulgence asked; but here the whole frame assumption that the latter comprised the sum of the bill is required to be altered, and a new of 5,000. stock. case made out. The motion must be refused, with costs. Held, upon the construction of a settlement containing an ultimate limitation to the next of kin or personal representatives of A. in a due course of administration according to the Statute of Distributions, that the wife of A. who survived him was excluded. THIS was a bill by the nephew of a Mr. John Allen, claiming a sum of 5,000l. 31 per cents. standing in the name of Mr. John Leach as surviving trustee of a settlement made the 5th of September, 1806, upon the marriage of John Allen with Lady F. Turnour. The stock was settled after the deaths of the husband and wife, and in the event, which happened, of there being no children, in such manner as John Allen should appoint by deed or will, and in default of appointment, in trust for the next of kin or personal representatives of the said John Allen, in a due course of administration according to the Statute of Distributions. The settlement contained similar provisions in respect to property settled on the part of Lady F. Turnour. John Allen died on the 31st of May, 1835, leaving his wife surviving, and without having exercised his power of appointment, but having by his will bequeathed all his personal estate and effects after the death of his wife, to two charities,-the Refuge for the Destitute, near Shoreditch, and the Asylum for the Blind, near St. George's Fields. From the Mr. Turner and Mr. Rogers, for the plaintiff, cited Bailey v. Wright, 18 Ves. 49; Garrick v. Lord Camden, 14 Ves. 372; Atkinson v. Baker, 4 T. R. 229; Cholmondeley v. Ashburton, 6 to show that Lady F. Allen was excluded as not Beav. 86; and Worseley v. Johnson, 3 Atk. 75, being of kin to John Allen, and referred to the limitation in the case of the property settled by husband could never have been allowed to take the wife in support of this argument, for the the whole of that. for the charities, cited Scott v. Moore, 14 Sim. Mr. Tinney, Mr. Roupell, and Mr. Malins, 35; Smith v. Barnaby, 10 Jur. 748; Saberton v. Skeeles, 1 Russ. & M. 587; Attorney-General v. Malkin, 2 Phil. 64; Jennings v. Gallimore, 3 Ves. 147; and Godsall v. Well, 2 Keen, 99, to show that the gift to the legal personal representatives of John Allen in a due course of administration would preserve the 5,000l. as part of his general personal estate. A gift to the next of kin would be inconsistent with the direction that the fund should go in a due course of administration, for then it would be applicable in the first place to pay debts. Either, therefore, the words next of kin must be rejected, or the limitation treated as void for uncertainty, Lowndes v. Stone, 4 Ves. 650; see 2 M. & K. 794. Mr. S. Miller for the executors. } Mr. Kindersley and Mr. Roundell Palmer, for the representatives of Lady Allen, referred to Long v. Blackwood, 3 Ves. 486, to show the reluctance of the court to hold a will void for uncertainty, and that a course of administration included more than the payment of debts; and to Cotton v. Cotton, 2 Bea. 67; Booth v. Vicars, 1 Coll. 6; Walker v. Malkin, 6 Ves. 146; Robertson v. Smith, 6 Sim. 47; Minter v. Superior Courts: Rolls.-Vice-Chancellor. Wraith, 13 Sim. 52; Baines v. Otley, 1 M. & K. 465; Bridges v. Adam, 3 Bro. C. C. 226; the observations of the Vice-Chancellor in Elmsley v. Young, 2 M. & K. 787; Harrington v. Hart, 1 Cox, 130; and Shifferth v. Badham, 10 Jur. 893, to show that legal personal representatives did not necessarily mean executors or administrators, and that the words next of kin might mean those entitled to take under the statute; and urged that the alternative gift in the present case was intended to provide for the contingency of Mr. Allen surviving his wife or dying in her lifetime. 381 2007., and a like annuity of 2007. to M. A. Hay; and that, if occasion should require, should, out of the rents, issues and profits of his freehold and copyhold estates provide and pay so much or such part or parts, if any, of the same annuities or either of them, as his said personal trust estate should be insufficient to discharge. On the cause coming on for further directions, it appeared that the personal estate was exhausted, that the annual rents of the real estate were insufficient to keep down the annuities, and that there was a considerable sum due for arrears. The question was, whether these arrears should be raised by sale or mortgage of the real estate. Mr. J. Parker and Mr. Llewin for the plaintiff, the residuary devisee, urged that the annuities were charged merely on the rents, and not on the corpus of the real estate, and there was no authority whatever for selling or mortgaging the real estate to satisfy such arrears, citing Foster v. Smith, 1 Phill. 629. Lord Langdale, after stating the facts of the case and the different claims advanced, said, it appeared to him clear that the sum of stock in dispute did not form part of the general assets of the testator; the only question, therefore, was, whether the wife was entitled to a share in the events that had happened, or not. He thought that in such a case, there being no child and no appointment, it was the intention of the settlors that each of the sums settled should revert to the family of the settlor; that the husband, therefore, should give up his marital rights, and the wife, in like manner, all such interest as she might have in her husband's property. It had been argued with great ability, that the phrase "next of kin, or legal personal representatives, under the statute was intended to provide for the two alternatives of the wife dying before or surviving her husband; the former words applying to the first alternative, and the latter to the second. But he did not think that was the intention of the settlors. Cases had been cited to show that the works "legal personal representatives" would include the wife. But he did not think that these cases showed the words "personal representa- Brocklebank v. Whitehaven Railway Company. tives" to have acquired any such technical sense Mr. Shapter and Mr. De Gex, for the annuitants, contended, that the primary object of the testator was to provide for the annuities, and that all other directions in the will were subsidiary to that; that a trust to be performed out of the rents and profits will be considered a charge on the corpus, unless there is something in the will inconsistent with such a construction. They cited Allan v. Backhouse, 2 Ves. & B. 65; Baines v. Dixon, Ves. sen. 41; Arundell v. Arundell, 1 Myl. & K. 316. The Vice-Chancellor held, that the arrears of the annuities should be raised either by a sale or mortgage of the freehold and copyhold estates. July 19th, 1847. OF LAND. - EXPIRATION OF POWERS GIVEN BY A RAILWAY ACT.- as to oblige him to construe them in a way PURCHASE Vice-Chancellor of England. Fentiman v. Fentiman. July 15th, 1847. ANNUITIES CHARGED ON PERSONAL ESTATE Where a power for the compulsory purchase of land is given by act of parliament for the space of three years, and before the expiration of the three years a jury meet to assess the value of certain land, but do not find a verdict until after the expiration of the three years, Held, that such verdict went for nothing, and an injunction granted to restrain the company from proceeding to take possession of the land. Where by will certain annuities were charged AN act of parliament for making a railway on personal estate and the annual rents and from Whitehaven to Maryport received the profits of freehold and copyhold estates, and royal assent on the 4th July, 1844. At the time the personal estate was exhausted, and the of the date of the act the Lands Clauses and rents and profits of the real estate were in- Railway Clauses Consolidation Acts had not sufficient to pay the arrears of the annuities: passed, and the act in question contained all Held, that such arrears should be raised by the usual powers subsequently embodied in the sale or mortgage of the real estates. general acts. By the 220th section it is J. FENTIMAN, by his will, dated 23rd No- enacted that the powers of the company for the vember, 1836, gave all his personal estate on compulsory purchase of land should not be trust to be converted, and he directed that his exercised after the expiration of three years from trustees should, out of the annual produce the passing thereof. On the 5th March, the thereof, or if need be, by the sale of a sufficient company gave notice to plaintiff that they were part of the principal, pay his wife an annuity of desirous of purchasing a piece of land of him. Mr. Bethell and Mr. Wray now moved for an injunction to restrain the company from depositing the purchase-money in the bank, or from issuing a process to the sheriff requiring him to deliver possession of the land to the company, contending that the verdict of the jury went for nothing, inasmuch as the powers in the act had expired on the 4th of July. The plaintiff refused to accept the amount of the legal estate in the moiety of the premises so purchase-money offered; negotiations ensued, mortgaged to J. Robey the elder, and on the which ended in nothing, and on the 19th June 9th March, 1838, she and her husband filed the company gave notice to the sheriff requir- their bill against J. Robey the younger for reing him to impanel a jury to assess the value demption of the mortgaged premises and for of the land at the expiration of fourteen days an account of the rents and profits which had from the notice, pursuant to the power con- been received by the said J. Robey the younger. tained in the statute. On the 3rd of July the He put in his answer, by which he admitted jury assembled, but did not agree as to the that J. Robey the elder, and also that he himamount of purchase-money until the 6th of self, had entered into possession of the premises July. and into the receipt of the rents and profits, and that neither of them had ever accounted for the same. By a decree in the cause dated the 19th November, 1841, the Master was directed to take an account of the rents and profits of the mortgaged premises received by the said J. Robey the younger, and upon plaintiff paying to him what should be found due, with the taxed costs, within six months after the Master should have made his report, the defendant was ordered to surrender the one moiety to the plaintiff, clear of all expenses. In 1844, the Master by his report certified that he had not taken any account of the rents and profits received by J. Robey the elder, because he was not directed so to do by the decree, but he found that a certain sum was due to J. Robey the younger from plaintiff, for principal, interest, and costs on the said mortgage. Exceptions were taken by plaintiff to this report, The Vice-Chancellor, after reading the but they were overruled. The sum so ascerclauses of the act, said, he thought the case was tained by the Master to be due to J. Robey the very clear. By the 220th section it was pro- younger not having been paid to him at the vided that the compulsory power given by the time appointed, on December 2nd, 1844, he act for the purchase of land should not be obtained an order for the dismissal of plaintiff's exercised after the expiration of three years bill. A bill of review was then filed by plainfrom the passing of the act. According to the tiff, stating all the foregoing proceedings, and plain meaning of the words the power of com- insisting that the decree of 1841, which had pulsory purchase must mean the payment of been enrolled, was erroneous in not having the amount of purchase-money ascertained directed an account to be taken of the rents into the bank, pursuant to the 152nd section. and profits received by J. Robey the elder, and The jury not having given their verdict until in not having directed an occupation rent to be after the time limited by the act had expired, he was of opinion that the compulsory power given by the act had expired, and that the injunction must be granted as a matter of course. Mr. Stuart and Mr. Malins, contrà, submitted that the powers of the act were properly exercised, and that there was nothing in the act to intercept the authority given to the sheriff. In construction of law the verdict of the 6th was the verdict of the 3rd of July; the service of the notice created the relation of vendor and purchaser, and neither party could afterwards recede. Doo v. London and Croydon Railway, 1 Rail. Cases, 257; Stone v. Commercial Railway, 1 Rail. Cases, 375. Trulock v. Robey. June 2nd, 1847. BILL OF REVIEW,-DEMURRER. In a bill of review the error in the decree must be apparent on the face of it, and it is not sufficient to support such a bill that under the prayer for general relief of the original bill plaintiff might have obtained a fuller decree, it being admitted that he was not entitled to all the relief obtainable under such prayer. In this case, J. Robey the elder became entitled to one moiety absolutely of certain copyhold premises, and as to the other moiety, having a mortgage thereon, he entered into possession of the whole, and on his death J. Robey the younger, as customary heir of his father, became entitled in like manner, and entered into possession. Plaintiff, Mrs. Trulock, as heiressat-law of one J. Hutchins, became entitled to fixed on the property during the term that J. Robey the elder and J. Robey the younger had been in possession, and praying that the said decree might be reviewed and reversed, and that the order of December, 1844, might also be reviewed or discharged. To this bill a general demurrer was filed for want of equity, and further for their being no error or matter in law apparent in the decree for which it ought to be reversed. Mr. Bethell and Mr. Randall, for the demurrer, urged, that in order for a bill of review of the decree itself; that was not so here. To to hold, the error must be apparent on the face ascertain the error of the decree, it would in the present case be necessary to go through the whole of the original pleadings, and in fact rehear the suit. They cited Coombes v. Proud, Freem. 181; Brend v. Brend, 1 Vern. 213; Glover v. Portington, Freem. 182; Haig v. Homan, 8 Cl. & Fin. 321; Perry v. Philips, 17 Ves. 173. Mr. Koe and Mr. Miller, for the bill, contended, that there was an error apparent on the decree, inasmuch as it did not direct an account to be taken of the rents and profits received |