Grievances of Assessors of Small Debt Courts. 73 been sustained by Mr. George Drew, of Ber-court of requests was one, and such attorneys, mondsey, attorney and solicitor. Mr. Drew so appointed, were required to give up their has petitioned the House of Commons, setting practice within twelve calendar months. forth "That in the year 1825 he was appointed one of the chief clerks of the Southwark Court of Requests, with a salary of 500l. per annum. "That he continued to fill such office until the year 1845, when the 7 & 8 Vict. c. 96, was passed, abolishing imprisonment for debts under 201., by the operation of which act, the business of the court became so diminished that the fees were insufficient to pay the full amount of the petitioner's salary, and he became entitled, under the provisions of that act, to a yearly compensation for the deficiency thereof, and which he has since received from the treasury. "That the last-mentioned act empowered the commissioners of courts of requests to appoint an assessor. "That the commissioners of the Southwark court of requests having delayed appointing an assessor in consequence of their having memorialised the privy council to extend their jurisdiction, complaints were made that the suitors of the court were sustaining injury by such delay, and thereupon a special meeting of the commissioners was held, at which it was unanimously resolved that the petitioner should be requested to accept the appointment of assessor; and the petitioner having acceded to such request, a memorial, signed by nearly one hundred of the commissioners (being all but six of the whole number who had qualified) was presented to Sir Geo. Grey, Baronet, one of her Majesty's principal Secretaries of State, and its prayer was supported by the members for the borough of Southwark and for the eastern division of the county, and also by the members for Greenwich and other places, and her Majesty's said Secretary of State having been pleased to confirm such appointment, your petitioner thereupon resigned not only his said office of clerk (which he was entitled to hold for life,) but also his practice as an attorney at law. "That the petitioner, since his appointment as assessor of the court, has sat twice a-week from 10 o'clock in the morning until 4 o'clock in the afternoon, and has determined many hundreds of cases brought before him, as part of the ordinary business of the court, as well as executed the provisions of the act respecting fraudulent debtors, by which a considerable sum of money has been obtained for creditors which would otherwise have been lost. "That the petitioner is informed that since his appointment as such assessor, and until Christmas last (when it became known that the act of the last session would be put into operation at an early period), the business of the court had considerably increased; so much so as to make it probable that no further claim would be made for the deficiencies in the salaries of the chief clerk and high bailiff, whereby a saving to the government would be effected of more than 8007. per annum. "That the petitioner has reason to believe, and has been repeatedly assured that the care exercised by the petitioner in deciding the various cases brought before him as the assessor, and in carrying out the provisions of the act respecting fraudulent debtors, had given great satisfaction to the commissioners and suitors. "That the petitioner being informed that arrangements were in contemplation for forming the districts of the new courts, made a representation to the Lord High Chancellor of his appointment as assessor, and of his having relinquished his practice of an attorney-at-law, and soliciting his lordship to appoint him to be the judge of the court over which he was then presiding as assessor, but your petitioner received no reply, but afterwards learned that Mr. Clive, the police magistrate of the Hammersmith and Wandsworth court, had been appointed the new judge by a letter from that gentleman stating such his appointment. pleased to appoint the petitioner to some other district, but your petitioner has received no reply to this application. 66 "That the petitioner immediately thereupon addressed a letter to the Lord High Chancellor, "That in the month of August, 1846, a bill praying that as his lordship had appointed a was pending in parliament for the better re-judge for the Southwark district, he would be covery of small debts, in which provision was made that persons holding the appointment of assessors should be the first judges of the new courts, but such bill was afterwards altered, That the commissioners, accompanied by a and the clause confirming the assessors as the deputation from the district, and by the memfirst judges of the new courts was omitted. bers for the borough of Southwark, presented "That the petitioner, notwithstanding the a memorial to the Right Honourable the Lord omission of this clause, was induced to believe Chancellor in favour of the petitioner, and the that the claims of the judges of the existing petitioner believes that such deputation at the courts to appointments under the bill, when it same time presented a memorial to the Lord passed into law, would, if they were properly High Chancellor from nearly all the attorneys qualified, be considered as superior to all practising in the borough of Southwark, stating others; and he was confirmed in that belief by that the appointment of the petitioner as the finding that although attorneys in general were not qualified to be appointed judges of the new courts, yet provision was made for the appointment of such attorneys who might have been appointed to preside in any court held under certain acts, whereof the Southwark assessor of the court had given great satisfaction, and that they trusted the petitioner would have been appointed the judge under the new act. "That, relying implicitly upon the arrangement proposed in the Small Debts Bill when 74 Fees in Courts of Law and Equity.-Unqualified Practitioners.—Analytical Digest, first brought into your honourable house, the be heard, and we are quite sure that if unpetitioner resigned his office of clerk, to which qualified persons are, on any pretence, he had been appointed for life, and to which was attached a salary of 500l. a-year, and sub-permitted, the utility of the court and the interests of the public will essentially séquently gave up his practice as attorney at suffer. law and solicitor, and that the petitioner having for a period of twenty-two years acted as a public officer in the Southwark court of re-able determination, it will then be the duty quests, without any complaint against his con- of the attorneys to make an appeal to the duct, he feels that his non-appointment to the proper quarter, and we cannot doubt of office of judge will operate very injuriously to their ultimate success. his character and future prospects in his profession. FEES IN COURTS OF LAW AND If the judge should come to an unfavour ANALYTICAL DIGEST OF CASES, Courts of Equity. ANCING. THE Committee nominated on this inquiry are, Mr. Watson, Sir James Graham, Mr. LAW OF PROPERTY AND CONVEYAttorney-General, Mr. Solicitor-General, Sir Frederick Thesiger, Mr. Stuart Wortley, Mr. [FOR the sake, as well of useful classification, Romilly, Mr. Walpole, Mr. Bickham Escott, as convenient sub-division, the decisions reMr. Roebuck, Mr. Parker, Mr. Hume, Sir John Hanmer, and Mr. Ewart. The committee lating to the Law of Property and Conveyancare empowered to send for persons, papers, ing, are here separated from the other cases and records; and five members are to be a recently reported in 2 Phill. part 1; 8 Beav. quorum. UNQUALIFIED PRACTITIONERS parts 2 & 3; 14 Sim. part 3; 2 Coll., part 3; 5 Hare, part 1; and 33 L. O.] BIDDINGS AT SALES. See Sale; and Vendor and Purchaser, 4. DEED. Construction.-Limitation to executors and AMONGST other instances of complaint against the practice and course of proceed-administrators, for their own use and benefit.— ing in the New County Courts, we are in- Under a limitation by deed of a fund, to "the formed that at Sheffield, Mr. Walker, the executors or administrators of the settlor, to judge of that district, at the instance of the mayor and other inhabitants, has intimated an opinion in favour of allowing collectors of debts to appear in support of claims sought to be recovered before him. and for his and their own use and benefit." Held, under the circumstances, that the fund belonged to the next of kin, and not to the administrator. A. B. being under an obligation to make a settlement on his wife, by deed expressed to be In the Court Baron the attorneys were made in order to make such provision, conentitled to practise, but on the passing of veyed property to trustees in trust to permit the Court of Requests Act, which altered him and his assigns to receive the dividends, the constitution of the old court, the at-"to and for his and their own entire use and torneys were excluded. The suitors not benefit during the joint lives of himself and his finding it convenient to attend personally, wife;" and in case 4. B. survived his wife, and being deprived of professional assist- him, "his executors, administrators, and asance, were driven to employ collectors and accountants, and sometimes sold their debts to them. Thus sprung up this class of persons assuming to practise in the local court. But this can form no good ground for sanctioning in the New County Court the dangerous precedent of admitting any but attorneys to appear and plead. We trust that the learned judge will, on reflection, deem it right to adopt the practice in this respect of the other County Courts, and hear only duly qualified attorneys. It is manifestly the intention of the legislature that barristers and attorneys only should then in trust, after her death, to assign it to signs, to and for his and their own use and benefit;" but if his wife should survive him, then to her for life, and afterwards to assign it "unto the executors or administrators of A. B. to and for his and their own use and benefit." The wife survived. Held, that, subject to her kin of A. B., and not to his administrator. life interest, the fund belonged to the next of Meryon v. Collett, 8 Beav. 386. DEPOSIT OF TITLE DEEDS. Extent of lien.-Interest.-A deposit of title deeds prima facie creates an equitable mortgage upon the whole property comprised in them. A debtor deposited his title deeds with a creditor until such time as his account should not exceed 1007., at which time they were to be Analytical Digest of Cases Courts of Equity, restored to him. The debtor died indebted to the creditor in 2741.: Held, that the creditor's lien extended to the whole 2741. Quere, whether the deposit of title deeds, without a legal security, will make a debt bear interest which. does not in its nature bear interest. Ashton v. Dalton, 2 Coll. 565. DOWER. 1. Mortgage.-A party died in 1830, having vested in him a mortgage in fee, and the lapse of time and circumstances were such as to render it very improbable that any party could now establish the equity of redemption. Held, nevertheless, that the widow was not entitled to dower. Flack v. Longmate, Beav. 420. 2. Arrears.— Groundless defence.-Bill for dower. The defendants in possession denied the title of the widow, alleging that the husband had not been seised of an estate of inheritance in the premises; that allegation on information as to the time of his death, which was believed to be correct, but afterwards found to be erroneous. Decree for dower and arrears for six years before the filing of the bill, but without costs. Semble, if the defence to a bill for dower be groundless, or founded on facts which the defendant knew, or with reasonable diligence might have known, to be true, the decree would be with costs. Bamford v. Bamford, 5 Hare, 203. See Deed. EXECUTORS. INTEREST. 75 her jointure 800l., to be charged upon the same hereditaments. The settlor, not having made any settlement in pursuance of the cove nant, by his will, confirming the settlement, devised his estates in the counties of Oxford and Berkshire to his wife for life. He afterwards, by deed, revoked his will as to the estates in Oxfordshire, which consequently descended to his heir at law. The jointress insisted that she was entitled to the Berkshire estate for life, free from any contribution towards her jointure; and that the Oxfordshire estates were exclusively liable to satisfy the covenant. But it was held, that, as no intention to benefit the jointress to the extent for which she contended appeared on the face of the will, the two estates were liable to contribute rateably to the satisfaction of the covenant. Eyre v. Green, 2 Coll. 527. Case cited in the judgment: Grigby v. Powell, 5 Sim. 290; 3 C. & F. 103. 1. Redemption.-A bill to redeem mortgage, filed before the mortgage has become absolute On a sale under the court, in June, 1839, it at law, is demurrable, notwithstanding the was provided by the conditions, that the ab- mortgagor may have tendered to the mortgagee stract should be delivered in 21 days, that the the purchase money, together with interest up purchaser should be entitled to the rents from to the day named in the proviso for redemption. October, and pay his purchase money in No- Brown v. Cole, 14 Sim. 427. vember, and if, "from any cause whatever," it 2. Sale-Bill by mortgagor against mortshould not be paid at that time, he should pay under the mortgage-deed set aside for fraud gagee and his solicitors, praying to have a sale interest at 5 per cent. The vendors were unable and oppression, dismissed as against the soto deliver the abstract within the time, and licitors, the main charges in the bill against them there was great delay and difficulty on their part in making out their title, which was not not having been made out, but without costs, complete till 1845. The purchaser had entered and authors of the sale, which, as between the on the ground that they were substantial movers into possession. On a motion made in 1845, to pay the purchase-money and interest into court, the court held, that it could not relieve the purchaser from payment of interest, but made the order without prejudice to any ap plication for compensation. Greenwood v. Churchill, 8 Beav. 413. And see Deposit of Title Deeds. LIEN. See Deposit of Title Deeds. JOINTURE. mortgagor and mortgagee, was proved not to be sustainable in a court of equity. Matthie v. Edwards, 2 Coll., 465. of sale cannot, as between him and the mort3. Power of sale.-A mortgagee having power gagor, exercise it in a manner merely arbitrary, but is, as between them, bound to act in a prudent and business-like manner, with a view to obtain as large a price as may fairly and reasonably, with due diligence and attention, be under the circumstances obtainable. Therefore, where a man who had a reversionary interest in Devise of Lands charged with jointure.- a sum of money expectant on the death of his Contribution in satisfaction of covenant.-The wife without issue by him, died in his wife's owner of estates in the counties of Oxford and lifetime after having mortgaged that interest, Berks covenanted on his marriage to convey and a few weeks after his decease the mortsuch part of them to trustees as should be of gagee, under a power of sale, advertised the the annual value of 9007., to the use of himself property for sale as a reversion expectant on for life, with remainder to the use and intent the death of a widow lady "now aged 30 or that his intended wife should yearly receive for thereabouts," and made no offer to satisfy the Analytical Digest of Cases: Courts of Equity. 76 4. Principal and surety.-Injunction.-S., in consideration of a loan of 10,000l. from G., assigned to the latter two mortgages which he held upon an estate belonging to N., and executed another mortgage of an estate of his own by way of further security. Afterwards, on N.'s mortgage debts becoming due, S. brought an action against him on the covenants in his mortgage deeds, which G. filed a bill to restrain. On a motion before the Lord Chancellor to discharge an injunction which had been granted by the Vice-Chancellor: Held, that it ought not to have been granted, except upon the terms of the plaintiff reconveying S.'s mortgage, and releasing him from his mortgage debt, and the plaintiff now declining these terms, and S. undertaking that the sum to be recovered in the action should be paid to the plaintiff, the injunction was dissolved. Gurney v. Seppings, 2 Phill. 40. See Dower; Mortgage, 2. POWER OF APPOINTMENT. 1. Power by deed or will to appoint to "nephew and nieces, grand-nephews and nieces," in such shares, and subject to such trusts, &c. as A. should appoint: Held, not to authorize an appointment by will to a grandniece for life, with remainder to her children. Waring v. Lee, 8 Beav. 247. Cases cited in the judgment: Hussey v. Dillon, Ambler, 603; James v. Smith, 6th July, 1844. 2. Trust. A residue was bequeathed in trust for A. for life, and after his death, for his children, as he should appoint; and in default of appointment, for the children equally, with remainder over. Before A. was married or had exercised the power, some of the parties entitled in remainder, filed a bill to have the accounts of the testator's estate taken, and the residue ascertained and secured. Before decree, A. married and had a child; and four days after the child was born, he exercised the power; and then filed a bill against the plaintiff in the former suit, stating his marriage, the birth of his child, and the appointment, and insisting, that thereby the interests of the plaintiffs in the former suit, had been wholly determined and put an end to. The plaintiffs, however, contended, that the appointment was fraudulent and void in toto, inasmuch as, though it was made in favour of A.'s children, he would, in the probable event of their dying, become entitled to the property as their next of kin. But the court held, that under existing circumstances, the appointment was good, and therefore, that no decree ought to be made in the original suit, until the happening of the events which would entitle A. to the property. Butcher v. Jackson, 14 Sim, 444. Case cited in the judgment: Macqueen v. quhar, 13 Ves. 467, 479. Far And see Settlement. REDEMPTION. See Mortgage, 1. PROBATE, DIOCESAN. SALE. 1. Opening biddings. · A purchaser under the court died before the confirmation of the report: Held, that it was not necessary to serve his heirs with notice of an application to open the biddings. Templer v. Sweet, 8 Beav. 464. 2. Opening biddings.-The court declined to open biddings upon an advance under 101. per cent. Holroyd v. Wyatt, 2 Coll. 537. See Mortgage, 2, 3; Trust, 3; Conditions of Sale, 1. SETTLEMENT. Power of appointment.—Trustee and cestui que trust.—In a marriage settlement the property of the wife was conveyed and assigned in trust for the wife for life for her separate use, remainder to the husband for his life, remainder to the children of the marriage, and in default of issue of the marriage, to the brother of the wife and his children. After the marriage the husband and wife filed their bill, charging that the brother, who was one of the trustees of the settlement, in concert with the solicitor's clerk, who took instructions for, and attended the execution of the settlement, had fraudulently omitted or erased from the deed a general power of appointment by the wife, in default of issue of the marriage, and praying that the settlement might be rectified by inserting such a power. The wife did not prove the instructions for the insertion of such a power, nor the fraud in omitting or erasing it, but it appeared by the evidence that the power had been introduced in the draft settlement prepared by counsel, and also in the engrossment; and the answer of the brother stated, that the power having been noticed by him when the engrossment was read over to him, he objected to it, as not being according to his understanding of the intentions of the wife, when the solicitor's clerk admitted it was not, and struck it out. The court held, that it was the duty of the brother, as one of the trustees, not to have permitted the power to be struck out without the express directions of the intended wife on that point; and that relief might be given in the suit, subject to the question whether the wife knew, when she executed the settlement, that it did not contain the power. Harbridge v. Wogan, 5 Hare, 258. See Trust, 1; Voluntary Settlement. SPECIFIC PERFORMANCE. 1. Injunction.-Jurisdiction.-The jurisdiction of the court to restrain by injunction an act which the defendant is by contract bound to abstain from, is not confined to cases in which there are either no other executory terms in the contract, or none which a court of equity has not the means of enforcing. If a bill states a right or title in the plaintiff to the benefit of a negative agreement on the Analytical Digest of Cases Courts of Equity. part of the defendant, or of his abstaining from a given act, the court will equally interfere by injunction, whether the right be at law or under an agreement which cannot be otherwise brought under its jurisdiction. Dietrichsen v. Cabburn, 2 Phill. 52; Hills v. Croll, 2 Phill. 60. Cases cited in the judgment: Kimberley v. Jennings, 6 Sim. 340; Yovatt v. Winyard, 1 J. & W. 394; Green v. Folgham, 1 Sim, & St. 398; Cholmondeley v. Clinton, 19 Ves. 261; Rankin v. Huskisson, 4 Sim. 13; Squire v. Campbell, 1 My. & Cr. 459; Martin v. Nutkin, 2 P. W. 266; Barrett v. Blagrave, 5 Ves. 555; 6 Ves. 104; Morris v. Colman, 18 Ves. 437; Clarke v. Price, 2 Wils, 157. 77 motion by the plaintiff (the vendor) after answer, notwithstanding the question in dispute in the cause might have been conveniently determined by the courts, without a reference. Curling v. Flight, 5 Hare, 248. 2. Whether the question in a cause be, what evidence of title the vendor is bound to give, or whether he is able to give sufficient evidence, the question is equally one of title, and the proper subject of a reference. Curling v. Flight, 5 Hare, 248. See Deposit of Title Deeds. TRUST. nants, they having expressly contracted on the subject; but that they had a discretion to exercise as to value, title, and locality; 2ndly, that leasehold houses were within the power. Beauclerk v. Ashburnham, 8 Beav. 322. 1. Investment in leaseholds. Settlement.Trustees were 66 authorised and empowered," 2. Misdescription.— Timber estate. -Com- with the "consent and direction" of the tenant pensation.-Bill by the vendor for the specific for life, to lay out the trust monies on "leaseperformance of a contract to purchase a timber hold hereditaments," "in some convenient estate, where the particulars of sale described place." Held, that it was imperative on the it as comprising a certain wood "with upwards trustees, on the requisition of the tenant for of 65 acres of fine oak timber trees, the average life, to invest in leaseholds, and that they could size of which approached 50 feet," and in the not refuse to do so on the ground of the particulars of the lot described it only as liabilities to be incurred by them on the cove❝65 acres, 2 roods, and 12 perches of growing timber." It appeared, on the evidence for the plaintiff, that the average size of the trees was about 35 feet, but on that for the defendant, that it was only about 22 feet; and the defendant, moreover, alleged that it was sold at a time when he had no means of seeing the wood, and that he relied on the particulars of sale: Held, that as the representation on the particulars of sale had proved to be incorrect, and as it was not shown that the defendant knew it to be incorrect at the time of making the contract, the court would not, at all events, enforce the specific performance of the contract without compensation; and that (inasmuch as the particulars of sale did not express what number of trees, or quantity of timber the wood contained,) it was not a case in which the court could measure the extent of the deficiency, or ascertain the amount of compensation; and that the bill must therefore be dismissed. Lord Brooke v. Rounthwaite, 5 Hare, 298. Cases cited in the judgment: Trover v. New- TENANTS IN COMMON. Occupation-rent.-Equitable set-off.-A freehold house was devised to several tenants in common, some of whom afterwards resided in it, but not under any agreement to pay rent, nor to the exclusion of the others. Held, that no rent accrued in respect of such occupation; and consequently, that the Master could not take the same into account for the purpose of establishing an equitable set-off against a legacy claimed by any one of such occupants from the executors of one of the deceased tenants in common. McMahon v. Burchell, 33 L. O. 234; S. C. 5 Hare, 322; 2 Phill. 127. 2. Equitable mortgages.-Priorities.-Legal estate.-Four trustees sell out stock, under an agreement that the proceeds shall be lent to two of them, upon equitable mortgage, by deposit of the documents of title of a copyhold estate which belonged to such two trustees in undivided moieties. The money was lent, and the documents deposited; but afterwards, by some unexplained means, they came into the hands of one of the two trustees who had borrowed the fund, and that trustee made a second equitable mortgage on his own moiety of the estate, by depositing the documents with a third person, who took them without notice of the first mortgage; that trustee afterwards became bankrupt, and the second equitable mortgagee purchased and obtained from the assignees of the bankrupt a surrender, and was moiety, having, at the time of such purchase of admitted tenant of the bankrupt's undivided the legal estate, received constructive notice of the first mortgage. In a suit by one of the trustees, (the lender of the trust fund, the other having become bankrupt,) for foreclosure, Held, that the second equitable mortgagee, who had taken the legal estate with notice of the obligations of the mortgagor to third parties, could only hold that estate subject to such obligations, notwithstanding that he had originally taken his mortgage security without notice. That, in the absence of any suggestion of a specific case, as against the plaintiff, charging enabled to commit the fraud, the mere fact of him with acts whereby the mortgagor was the possesion of the title deeds by the mortgagor was not sufficient to postpone the claim of the first mortgagee. That the fact of the loan of the proceeds of |