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and pecuniary demands, and not to torts.—The sheriff or his deputy has the power to nonsuit.— Watson v. Abbott, 2 C. & M. 150; 2 D. P. C. 215.
2. Where an action is tried before the sheriff under the Writ of Trial Act, and the jury give £20 for the debt, and 10s. for interest; semble that the verdict is bad as to the 10s.—Burleigh v. Kingdom, 2 D. P. C. 351.
3. (New trial.) A motion for a new trial under this act can only be made on an affidavit of the facts, or on the under-sheriff's notes, verified by affidavit.—Johnson v. Wells, 2 D. P. C. 352.
4. (Nonsuit—Amendment.) On the trial of an issue, in an action of debt on bond, before the sheriff, under the 3 & 4 Will. 4, c. 42, a variance appeared between the bond as stated in the declaration, and as produced in evidence; the penalty stated being £260, the real penalty £200: but the sheriff refused to nonsuit, and the plaintiff obtained a verdict The Court refused a rale for a nonsuit (or, as it appears, for a new trial) though no amendment had been made, and the facts had not been found specially according to s. 24 of the act.—Hill v. Salter, 2 D. P. C. 380.
(Containing 5 Bligh, Part 4; and Mylne & Keene, Part 2.)
[The case of The Attorney-General v. Browne Mill, in Bligh, has been before abstracted.]
Where there was a fund in Court standing to the separate account of a married woman, whose husband survived her, and died before administering to her estate, the fund was ordered to be paid to the wife's legal personal representative, although such representative had not also obtained administration to the husband's estate.—Gulteridge v. Stiluiell, M. & K. 486.
, BOND TO SECURE INVESTMENT OF STOCK.
Bond to replace stock, and pay meanwhile sums equal to dividends, a bonus afterwards declared, the lender has an equity to be placed in the same situation as if the stock had remained in his name, and is consequently entitled to the replacement of the original stock, increased by the amount of the bonus, and to the dividends in the meantime, as well upon the bonus as the original stock.— Vauefian v. Wood, M. & K. 403.
1. (Petition.) Upon a petition under the 52 G. 3, c. 101, the Court will adjudicate between the conflicting claims of different charities, where the point to be decided is simply a question depending upon the construction of a particular instrument.—In re Upton Warren, M. & K. 410.
2. (Administration of.) Where property was given to a schoolmaster, to be applied partly for the purposes of a free-school, incorporated under the name of the schoolmaster and guardians, and partly for other specified charitable purposes, and no intention could be presumed of giving individual benefit to the person filling the office of schoolmaster, the surplus income having increased beyond the extent of a reasonable compensation for the schoolmaster's duties, the Court directed the surplus to be applied to other charitable purposes.—Attorney-General v. The Master of Brentwood School, M. & K. 376.
3. (Jurisdiction.) A gift of a specific sum, out of the rents of an estate, to one of the chartered companies in the City of London, "for increase oi their stock of corn for the service of the market of London;" and a gift of the residue of such rents to the same company, "for the further increase of theirstock of corn," are donations for the benefit of the company and its revenues, and not subject, therefore, to the jurisdiction of the Court as charitieSi—Attorney-General v. Haberdashers' Company, M. & K. 420.
4. (Construction.) A devise of estates to the Fishmongers' Company, subject, among other things, to a charge to distribute among the poor 138 quarters of coals, or else money to buy the same coals unto the same number at the price of Sd. per quarter, reciting that the sum total in money for the same coals, at the price aforesaid, amounted to 41. 12s. a year; and further directing, that if the coals be bought for a less price, then more
'coals should be given, leaves it optional with the company to distribute either the quantity of coals, or the 4/. 12s. annually.—In re Jordeyn's Charity, M. & K. 416.
5. (Construction.) An annual sum was given to trustees, to be paid as an apprentice-fee for a boy who should be chosen out of a particular parish; failing which, out of certain other parishes, and in default of the sum being claimed, then for the benefit of Christ's Hospital. The sum was not claimed for many years, and considerable arrears accumulated in consequence: Held, that Christ's Hospital was not entitled to such arrears, but that they ought to be applied according to a scheme.—In re Upton Warren, M. & K. 410.
COMPOSITION WITH CREDITORS.
The partners in a firm executed mortgages of the partnership property to O., to secure 15,000/. in future advances, and D., one of the partners, conveyed to O. the equity of redemption in an estate, his separate property, which was already in mrrtgage, to secure advances on account of the firm to the amount of 10,000/. Advances were made by O. on account of the firm, which afterwards becoming insolvent, a deed of composition was executed, by which the creditors bound themselves to accept 7s. in the pound, for which J., one of the partners, became solely liable; D. retiring from the firm, and being released from the debts: the deed of composition was signed by O. "without prejudice to the securities which he held." The equity of redemption in the partnership property was subsequently conveyed to O. in discharge of the sums secured upon them, and he at the same time bound himself to take 8000/. instead of the 10,000/. secured on the separate estate of D. On a bill filed by O. to raise the 8000/. by sale of the mortgaged premises, and a cross-bill by D. insisting that the composition was taken by O. for his whole debt, and that the separate estate of D. ought not to be applied in payment of the debts of the firm until the partnership funds had been exhausted: Held, that the signature of the composition-deed by O. was not, under the circumstances, a waiver of the security, and that the equity of D. was lost by acquiescence, and barred by want of interest.—Duffy App., Orr Res., B. 621,
CONVERSION OF PARLIAMENTARY STOCK.
A jointress, being entitled under a settlement to a rent-charge of 800/. a year, consented, for the purpose, of facilitating the sale of the settled estates, to concur with the trustees in conveying the estates, exonerated from her jointure, upon having it sufficiently secured; and a sum of 16,000/. Navy 5 per cents., part of the produce of the sale, having been invested, tlje jointress, by a deed declaring the trusts of the investment, agreed "to accept the dividends and annual produce of the stock in full discharge or satisfaction of her jointure or rent-charge of 800/." By the successive conversion of the Navy 5 per cents, into 4 per cents, and 3^ per cents., the income arising from the original investment was reduced to 588/. a year: Held, that it being clear from the general language of the deed and the nature of the transaction, that it was the intention of all parties that the 16,000/. stock should form a security for the full jointure of 800/., the jointress was entitled to a declaration to that effect; and that she had a lien on the capital sum to make up the deficiency from time to time by a sale of a sufficient part of the capital.—Arundell v. Arundell, M. & K. 316.
The heir may, without admittance, devise copyhold estates descended upon him. (Right v. Banks, 3 B. 6k Ad. 664.)— King v. Turner, M. & K. 456.
EXONERATION OF PERSONAL ESTATE.
The personal estate being primd facie liable to the payment of debts, funeral expenses, and legacies, will not be exonerated, unless the intention of the testator that it should, be satisfactorily made out from the whole context of the will; a direction to trustees to apply the produce of the real estate to these purposes not alone implying the exoneration of the personal estate. (Booth v. Blundell, 1 Mer. 193; Driver v. Ferrand, 2 R. & M. 681.)— Walker v. Hardwick, M. & K. 396.
A judgment creditor of the deceased tenant for life, under a marriage settlement, of an estate charged with the payment of certain debts, filed a bill in 1779 for the sale of the lands for payment of the debt; to which bill, there being no issue of the marriage then in existence, the tenant for life in possession and in remainder only was made a party, the trustees of the inheritance not being parties. In 1782 the creditor obtained a decree which directed the usual accounts, but no account was directed to ascertain what were the incumbrances affecting the lands. A trustee for the creditor became the purchaser under the decree for sale. After the decree, but before the sale, T., issue in tail, was born, but was not made a party to the suit. R., the tenant for life in remainder, afterwards made an application to the Court to set aside the sale, but he compromised the case with the creditor. T. having subsequently become entitled as issue in tail, in 1808 filed a bill, on which no further proceedings were taken until 1823, when the bill was amended, to set aside the decree and the purchase, and the Court below considering the transaction a fraud on the persons entitled to the inheritance, who were then infants of a tender age, set aside the decree accordingly. This decision was affirmed on appeal to the House of Lords, an objection that the suit had not been prosecuted with due diligence having been considered immaterial, the plaintiff having been in the King's service abroad, and the defendant not having moved to dismiss the bill.
An objection that an allegation in the bill, that the parties were out of the jurisdiction, was not proved, nothaving been taken at the hearing below could not be urged on appeal.—Mullins App., Townsend Res., B. 567.
An assignment of future freight by the owners of a ship is good.—Douglas v. Russell, M. & K. 488.
GIFT FROM EMPLOYER TO AGENT.
On inquiry as to the circumstances under which a bond was given, the reference having been made, under an order by consent, in a suit for the administration of the assets of the obligors, the master found that the bond was voluntary, and given as a bounty to the obligee; the latter having claimed it as a bond given partly for money lent and partly for services performed. The finding of the master being unsatisfactory to the Court, but being ultimately confirmed by the House of Lords, leave was given by the Court, upon petition by the personal representative of the obligors, to institute a suit to impeach the validity of the bond, considered as a gift from employers to their agent.—Earl of Winchelsea v. Garreliy, M- & K. 253.
[This order has since been reversed by the House of Lords.] INJUNCTION.
An injunction was granted on affidavit, before answer, to restrain the defendants, trustees of a chapel, erected by a Presbyterian congregation for religious worship, according to the usages, discipline, and doctrine of the Church of Scotland, from electing as minister a person not duly licensed by that church; but an injunction to restrain them from allowing persons, not so licensed, to conduct public worship or in any manner officiate, and from preventing persons so licensed and otherwise duly authorized, from officiating during the intermediate period prior to such election, was refused.— Milligan v. Mitchell, M. & K. 446.
A creditor having under a decree for the administration of assets brought in a claim on a bond of E. K., the testatrix, and M. K., her sister, the master found, under the circumstances, that the bond was a voluntary bond given to the creditor as a bounty by E. K. and M. K., without any consideration having been paid or given for the same. The plaintiffs excepted to the report, on the ground that the master ought to have certified that the bond was given as an indemnity. The creditor excepted, on the ground that the master ought to have certified that the bond was given partly for services, and partly for money lent. On the hearing on exceptions, the Master of the Rolls directed three issues in order to ascertain the nature of the bond: Held, on appeal to the House of Lords, that the Master of the Rolls, having the whole question in point of evidence before him, and being in as good a situation to draw a con