APRIL 3.] practice to omit the limitation to trustees to support contingent remainders. (Scriv. Cop. 476; Wat. Cop. 197.) It has, however, been suggested, that as the lord, in case of a forfeiture by a tenant for life, is entitled to the land for his own use during such particular estate (Lane v. Pannel, 1 Roll Rep. 238, 317, 438; Habergham v. Vincent, 2 Ves. 214; S. C. 4 Bro. C. C. 364), a limitation to preserve contingent remainders should be inserted in settlements of copyhold as well as of freehold estates. (Atherley's Mar. Set. 570; Wat. Cop. 197.) There can be no doubt, certainly, as to the prudence of adopting such a course, if the lord would consent to accept a surrender so framed; but it seems that he could not be compelled to accept a surrender which would be calculated to defeat his right of entry for an act of forfeiture incurred by the tenant for life. (See Mr. Coventry's note to Wat. Cop. 197; Scriv. Cop. 480.) With respect to assurances made subsequently to the 8 & 9 Vict. c. 106, it has been already observed that trustees, to preserve contingent remainders, are no longer necessary, even in settlements of freehold property (see ante, vol. 1, p. 315); but this statute, it must be ob(Ib.) served, is only prospective in its operation. Whether an estate in copyholds can be limited to commence in futuro.-A surrender of copyholds being construed as a deed at common law, and not as a will, it follows that an estate can no more be created to commence in futuro by surrender, than (Wat. Cop. it could by a common law assurance. 198; Clampe's case, 4 Leon. 8; Seagood v. Hone, Cro. Car. 366; Allen v. Nash, Noy. 152; Dunnal v. Giles, Brownl. 41; Simpson's case, Godb. 264; S. C. Cro. Jac. 376, by name of Sympson v. Sothern; S. C. 1 Roll. Rep. 109, 137, 253; and 2 Roll. Abr. 791, 794, by name of Simpson v. Southwood; see also Gilb. Ten. 260; Barker v. Taylor, Godb. 451; Bambridge v. Whitton, March, 177; see also Scriv. Cop. 200). Fee upon a fee.-Whether a fee can be limited on a fee of copyholds by surrender, is a point of less certainty, and the authorities on the subject are many of them irreconcileable with each other; whilst the opinions of learned lawyers are no less at variance than the cases. Mr. Coventry, however, in a note to his edition of Walker's Copyhold, p. 210, n. (1), gives the clearest view of the law on this subject, in which, after stating that he had inspected the numerous cases on this head in the reports themselves, he had arrived at the following conclusions: 1st. That an immediate surrender of copyholds cannot be maintained. 2ndly. That a fee may be limited on a fee in a surrender of copyholds, by way of condition, but not by way of springing, shifting, or secondary use. (Edwards v. Hammond, 3 Lev. 132.) 3rdly. That a surrender may contain a power of appointment or nomination, but not a power that will defeat uses once vested. (Beal v. Shepherd, Cro. Jac. 199; Drewer v. Thompson, 4 Taunt. 294; and see Bolt.'s Supp. to Ves. 323.) The same learned writer also remarks that "a condition cannot be made the means of limiting a fee upon a fee in the same manner, and to the same extent, as a limitation of uses in a statutable conveyance of freehold; neither can such power of nomination or appointment be made the medium of springing or secondary uses on freehold, since the statute. (See Scriv. Cop. 226). The cases in support of the doctrine that a surrender may be made in futuro, are, for the most part, cases on wills, where, by means of executory devises, such uses are admissible; and it appears never to have been doubted that the equitable ownership of copyholds is susceptible of shifting uses in the same manner as freeholds; and if there have been many instances of surrenders to future and springing uses engrafted on the legal estate of copyholds in any particular manor, it is highly probable that a court of equity would consider such uses as sanctioned by custom, and assist in establishing rather than overturning them on the doctrine in question." In conclusion, however, he observes, that a title depending on a question of this kind, depends on a very doubtful question, and that therefore a purchaser is not bound to accept it. THE LAW TIMES. sent day the Court of Chancery would doubtless potato salesman, div. next week. Edwardes, London.passed.-Park, G. tailor, last exam. March 30.-Pulling, C' Co. auctioneers, div. next week. Edwardes, London. Spratt, T. coachmaker, last exam. sine die.-Williams and Saturday, March 27. DIVIDENDS. Banks, W. C. builder, last exam. May 8.-Payne, J. H. last exam. June 4.-Snowden, E. painter, last exam. April Resulting trusts.-Where the surrender is made beer retailer, last exam. passed.-Smith, E. cheesemonger, to one party, and another pays the purchase-24; div. next week. Follett, London.-Stevens, T. W. G. money, the former will become a trustee for the hackney master, last exam. June 4.-Ternan and Ternan, latter, in like manner as in purchases of freehold builders, last exam. May 1. property, where the person taking the legal estate will in equity be decreed to be a trustee for him who advances the purchase-money. (As to which see ante vol. i. pp. 193, 197); see also Dyer v. Dyer, 2 Cox, 92; Zinzon v. Zinzon, T. Jones, 142.) In like manner if copyholds are granted for two or three lives in succession, and one only pays the fine, the others are trustees for him. (Benger v. Drew, 1 P. Wms. 780; Rundle v. Rundle, 2 Vern. 264; Rumbold v. Rumbold, 2 Eden, 15.) And this notwithstanding that the custom of the manor is that the lives shall take in succession. (Smith v. Baker, 1 Atk. 385; and see Clarke v. Danvers, 1 Cha. Cas. 210.) Still for all this a custom that the nominees shall take for themselves, unless a trust to exclude them appear on the rolls, has been held to be a reasonable custom. (Edwards v. Fidell, 3 Mod. 237.) To prevent questions from arising on this subject, an express declaration, where the nominees are to take beneficially or in trust, should always be inserted in or accompany (See also Coventry's note to Wat. the surrender. Cop. 214.) (To be continued.) Public Sales. By Messrs. DANIEL SMITH and SON, at the Mart. Part of Lot 2, comprising Cold Harbour Farm, with farm-house and 185a. 2r. 35p. of land-9,4507. Out Elmstead Farm, with farm-house, cottage, and about A plot of freehold arable land, containing 22a. 20p.-8407. A freehold residence, with pleasure-grounds and paddock, The flour-mills in the town of Newbury; held under the By Messrs. SHUTTLEWORTH and SONS. By Messrs. DAVIS and VIGERS, at the Mart. A similar house, No. 30-5851. A house and shop, with double frontage, of the value of A house, No. 28, Hanover-place, of the value of 607.; A house and corner shop, No. 26, of the value of 557.; held A house, No. 25, of the value of 301. per annum; held for THE GAZETTES. AMOUNT OF DIVIDENDS DECLARED. The sum stated as the Dividend means so much declared in Buttifant, T. S. haberdasher, last exam. May 4.-Gros- Wednesday, March 24. Fennell, J. G. child-bed linen dealer, ass. none chosen.- Friday, March 26. Where no use is expressed.-It is said that if a copyholder surrenders into the hands of the lord Bond and Co. shawl manufacturers, last exam. passed.without declaring any use, that it shall enure for the benefit of the lord, and the copyhold will be- Bromley, B. cattle dealer, last exam. April 21.-Clarke, J. Edweek. Edwardes, London.-Haines, J. victualler, last exam. come extinguished, as on a surrender by a tenant painter, last exam. April 30.-Fielder, A. brewer, div. next for life to him in reversion. (Fisher v. Wigg, April 22.-Heathorn, J. L. shipowner, div. next week. 1 P. Wms. 17; Wat. Cop. 92.) But at the pre-wardes, London.-Lovett and Lovett, builders, last exam, Official Assignees are given, to whom apply for the Dividends. Archer, S. woollen manufacturer, second, 44d. Fraser, Manchester.-Bowerman, R. carrier, 18. 7d. Belcher, Lonsawer, 9d. Follett, London.-Cuthbert and Co. wine merdon.-Byford, G. grocer, second, 3d. Cazenove, Liverpool. Collins, W. tailor, 43. Belcher, London.—Cunningham, S. chants, d. Follett, London.-Fearnley, J. stuff manufac turer, second, 82d. and 2s. 8d. to new proofs. Young, 54d. Pott, Manchester.-Hallam, R. grocer, first, 5s. 6d. Leeds. Hague and Co. cotton-spinners, first W. H. 135. Valpy, Birmingham.-Humfrey, J. coal dealer, first, 25. lett, London.-Ledbeater, J. manufacturer of shirtings, second, 9d. and first and second 1s. 3d. new proofs. Fraser, Christie, Birmingham.-Lawrence, B. merchant, Is. FolManchester.-Lloyds, R. C. painter, first, 18. 7d. Morgan, Liverpool.-Lord, A. dyer, first, 18. 4d. Fraser, Manchesgett, S. ironfounder, first, 2s. 6d. Pott, Manchester.-Royle, ter.-Pullman, C. hosier, first, 2s. Cannan, London.-RodT. muslin manufacturer, second, 3d. Fraser, Manchester. Tappenden, T. tailor, 3s. 4d. Follett, London.-Yeardley Follett, London. and Co. flax spinners, second jt. 94d; first sep. J. Yeardley, 78. 6d. Kynaston, London.-Yorke, S. upholsterer, 3s. Insolvents' Estates. Burness, J. F. baker, Twickenham, first, 11d. Cannan, London.-Dale, A. butcher, Liverpool, first, id. Cannan, London.-Trimble, G. grocer, Liverpool, first, 6d. Cazenove, Liverpool. ASSIGNMENTS To Trustees for the benefit of Creditors. Dodwell, B. grocer, Kensington, Feb. 8. Trusts. J. Freeman, cheesemonger, and T. How, tea dealer, both of Highst. Southwark. Sol. Allen, Queen-st. Cheapside.-Johnston, G. builder, Tranmere, March 23. Trusts. W. Porteous, builder, J. Smith, slate merchant, and H. Fisher, builder, all of Birkenhead. Sol. Fisher, Birkenhead. Gazette, March 30. Gerard, M. A. schoolmistress, Oxford, March 25. Trusts, ford. Sol. Mallam, jun. Oxford.-Jones, G. H. draper, Guildthe Rev. J. Badcliffe, clerk, and W. Bayne, gent. both of Oxford, March 18. Trust. H. Honey, warehouseman, Wood-st. Sol. Sole, Aldermanbury.-Smyth, J. miller, Framlingham, March 25. Trusts. T. Johnson, farmer, Leiston, and G. Edwards, farmer, Framlingham. Sol. W. Edwards, Framlingham.-Wright, J. J. ship owner, South Shields, Feb. 24. Trusts. T. Vint, ship owner, and T. Glover, ship owner, both of South Shields. Sol. Ingledew, Newcastle. Bankrupts. DATE OF FIAT AND PETITIONING CREDITORS' NAMES. FRANCIS, JESSE, grocer and provision dealer, High-street, HUTCHISON, JOHN, wine merchant and commission agent, JOHNSON, MATTHEW, spindle maker, Leeds, April 12, 30, SCOTT, JEREMIAH, share broker, Leeds, April 22, and May read, Poplar, April 20, at half-past eleven, div.-Hopkins, HOWELL, HENRY, draper, Shrewsbury, April 10, at twelve, and May 8, at half-past one, Basinghall-street, Com. Goulburn; Follett, off. ass.; Soles and Turner, Aldermanbury, sols. Date of fiat, March 26. H. Sturt, B. B. Ward, J. C. Sharp, and J. Ward, Wood-street, warehousemen, pet. crs. HODGSON, WILLIAM, jun. licensed victualler, Halton, Leeds, April 19, and May 6, at eleven, Leeds, Com. West; Freeman, off. ass.; Jacques and Co. Ely-place, Holborn, and Greaves, Leeds, sols. Date of fiat, March 23. Bankrupt's own petition. Meetings in the Country. Gazette, March 26. MEETINGS FOR ALLOWANCE OF CERTIFICATES. Gazette, March 30. Chambers, J. C. needle manufacturer, Ipsley, WarwickJEBB, JOHN, grocer and publican, Stanwardine in-theFields, Baschurch, Shropshire, April 8 and May 1, at shire, April 21, at eleven, Birmingham, fin. div.-Cowper, W. F., B F. and P. E. linen drapers, Darlington, Durham, twelve, Birmingham, Com. Daniell; Valpy, off. ass.; Mot- April 20. at half-past ten, Newcastle, sep. auds. of W. F. teram and Knowles, Birmingham, sols. Date of fiat, and B. F. Cooper, and at twelve, joint aud.; and April 22, March 25. Bankrupt's own petition. LOVATT, WILLIAM HENRY, factor, Wolverhampton, April F. Cowper.-Dawn, A. draper, Mansfield, April 23, at ten, at twelve, first joint div. and first sep. div. of B. F. and W. 13, at eleven, and May 18, at twelve, Birmingham, Com. Sheffield, aud.-Green, H. button manufacturer, BirmingBalguy; Christie, off. ass.; Robinson, Wolverhampton, ham, April 21, at eleven, Birmingham, aud-Lockwood, W. and Mottram and Knowles, Birmingham, sols. Date of worsted spinner and stuff manufacturer, Hightown, York. fiat, March 26. Bankrupt's own petition. shire, April 20, at eleven, Leeds, aud. and April 21, at eleven, MARSHALL, EDWARD, pewterer, Clifton-street, Sun-street, div.-Longbottom, W. and Bentley, R. wool merchants, Finsbury, April 13, at two, and May 14, at eleven, Basinghall-street, Com. Holroyd; Edwards, off. ass. BuRochdale, April 22, at twelve, Manchester, aud. and April chanan, Basinghall-street, sol. Date of fiat, March 26. Mackay, J. tailor and draper, Liverpool, April 20. at eleven, 23, at twelve, joint div. and sep. of W. Longbottom.Bankrupt's own petition. SHARP, JAMES, coal merchant, Riddlesden, near Bingley, Liverpool, aud. and April 23, at eleven. div.-Rogers, G. Yorkshire, April 17 and May 6, at eleven, Leeds, Com.ironmonger, Gloucester, April 22, at one, Bristol, aud.West; Hope, off. ass.; Sharpe and Co. Bedford-row, Tees, April 20, at half-past ten, aud. and April 22, at eleven, Wilkinson, J. wharfinger and shipowner, Stockton-uponWeatherby and Co. Bingley, and Bond, Leeds, sols. Date Newcastle, first div.-White, R. merchant, Thorney-close of fiat, March 22. Bankrupt's own petition. and Sunderland, April 20, at eleven, Newcastle, aud. SIVILL, THOMAS, publican, Liverpool, April 16 and May 7, at twelve, Liverpool, Com. Ludlow; Bird, off. ass.; Ches- MEETINGS FOR ALLOWANCE OF CERTIFICATES. ter and Co. Staple-inn, and Avison and Co. Liverpool, Gandell and Brunton, commission agents. Birkenhead, sols. Date of fiat, March 25. Bankrupt's own petition. SOAR, GEORGE ATKINS, glass cutter and lead merchant, April 20, at eleven, Liverpool.-Morris. R. coach builder, April 20, at eleven, Liverpool.-Gandel, J. H. Rock-ferry, 20, Great Marylebone-street, April 5, at half-past one, Gloucester, April 22, at one, Bristol.-Thompson, N. factor, May 3, at half-past twelve, Basinghall-st. Com. Shepherd; Liverpool, April 20, at twelve, Liverpool.-White, R. mer. Graham, off. ass.; Bicknell and Co. Connaught-terrace, chant, Thorney-close and Sunderland, April 20, at half-past Edgware-road, sols. Date of fiat, March 27. Bankrupt's eleven, Newcastle. own petition. SWAIN, WILLIAM, builder, plumber, and glazier, Cheltenham, Gloucester, April 14 and May 14, at one, Bristol, Com. Stephen; Hutton, off. ass.; Winterbotham and Co. Cheltenham, sols. Date of fiat, March 25. J. Denley, quarryman, Withington, pet. cr. W. Partnerships Dissolbed. Gazette, March 23. Baldwin, H. and Walker, H. worsted spinners, March 15. TIPPER, AUGUSTA SOPHIA, HENRY ROE, and ALFRED,Banbury, J. C. and Bennett, J. jun. wholesale milliners, wholesale stationers, 42, Upper Thames-st. and Horton Addle-st. March 17-Britcher, T. and C. bricklayers, NorMills, Bucks, April 9, at two, May 7, at eleven, Basing-wich, March 18.-Cheetham, W. Jessup, J. and Dyson, E. hall-st. Com. Foublanque; Belcher, off. ass.; Spicer, jun. woollen cloth manufacturers, Huddersfield, so far as reGreat Marlow, Bucks, sol. Date of fiat, March 22. Bond, builder, Great Marlow, Bucks, pet. cr. TRANTER, JAMES, jun. timber-merchant, April 14 and May 5, at eleven, Birmingham, Com. Daniel; Valpy, off. ass.; Palmer, Rugeley, and Smith, Birmingham, sols. Date of fiat, March 17. Joseph Palmer, timber-merchant, Ruge. ley, pet. cr. Meetings at Basinghall-street. gards Cheetham, Feb. 24.-Dowding, W. J. and S. woollen Calstone, Wiltshire, Aug. 6.-Glover, G. jun. and Luter, J. manufacturers, New Weston-st. Bermondsey, and Calne and K. warehouse-keepers, Liverpool, Feb. 23.-Grime, G. and J. drapers, Hull, March 16. Debts paid by G. Grime. Haggitt, J. and Powell, E. tailors, Southampton, March 17. Debts paid by Powell.-Harding, M. and Hunter, E. Cheadle, Dec. 25.-Hart, P. Walmsley, S. and Mangnall, R. starch manufacturers, Liverpool, so far as regards Hart, March 19. Debts paid by the remaining partners.-Himsworth, R. and E. grocers, Salford, March 17.-Howard, J. Allen, J. B. brick-merchant and ironmonger, Brixton and and Barker, B manufacturers, Bramley and Leeds, Jan. 1. Hatton Garden, April 6, at eleven (adj. Feb. 19), last exam. Debts paid by Barker.-Ladley, J. and Butler, J. R. brush -Bourgain, F. H. watch manufauturer and importer, Nor-makers, Old Burlington-st. March 17. Owen, D. and thampton-square, April 16, at eleven, div.-Latham, S. M. Eaton, H. hat manufacturers, Manchester, March 19. Debts baker and ship agent, Dover, Kent, April 16, at one, div. paid by Eaton.-Sherrard, J. and Winterton, T. trimming sellers, Tottenham-court-road, March 22. Debts paid by MEETINGS FOR ALLOWANCE OF CERTIFICATES. Winterton.-Skikelthorpe, J. and Gilman. C. oil warehouseBrowne. C. M. schoolmaster, Newchurch, April 16, at men, Oxford-st. March 19.-Spence, H. and Markiand, W. twelve.-Elworthy, J. B. draper. Bridgewater, April 16, at coppersmiths, Manchester, March 15. Deb s paid by Marktwo.-Gilliam, J. jeweller, Frith-st. April 17, at eleven.— land.-Swann, J. and R. and Heath, M. and J. vinegar manuJohnson. J. grocer, Chelmsford, April 16, at twelve,-Mab-facturers, Stourport, March 1. Debts paid by Swann.son, G. M. potatoe-dealer, High-st. Whitechapel, and Whitechapel-road, April 16, at one. Travis, T. and Lomontt, A. hat manufacturers, Stockport, Gazette, March 26. Axon, C. (deceased) and Walsh, R. cotton-spinners, clothiers, St. John-st. Clerkenwell, Feb. 27.-Brewster, W. and Seabrook, B. T. surgeons, Brighton, March 25.-Broadwood, H. Mundell, R. C. Huggins, W. and E. and Broadwood, T. C. brewers. Broad-st. Golden-sq. so far as regards R. C. Mundell and T. C. Broadwood, March 22. Debts paid by the remaining partners.-Brown, W Shipley, J. Hamil ton, F. A. Priestman, J. M. Brown, J. Bowen, S. Nicholson, S. and Brown, W. E. Liverpool, so far as regards Priestman, March 1-Burton, T. and H. Aldersgate-st. March 25.-Cameron, W. Bowdin, D. Werry, W. Jones, T. Thomas, O. Gribble, B. Floyd, P. Fleming, A. and Millicun, T. grocers, Ulverston, Jan. 30. Debts paid by Cameron.Cheadle, P. and M. Wilson, J. and Windram, J. innkeepers, Coventry, Sept. 29. Debts paid by P. Cheadle. - Clarke, D. R. and Tennant, S. C. Havana, March 1. Debts paid by R. Clarke.-Coward, G. Green, W. jun. and Taylor, W. and M. slate merchants, Ingleton, so far as regards W. and M. Taylor, March 23. Debts paid by the remaining partners.Ellis, W. and Wales, G. R. auctioneers, March 25.-Evans, J. Casson, T. and Mitchell, R. coach-builders, Liverpool, so far as regards Casson, Feb. 13.-Fuller, G. and R. W. estate agents, Jan. 27. Debts paid by W. R. Fuller.Gething, R. and Jones, G. W. Newport, March 3.-Gladstone, M. A. Hannay, A, and Gladstone, J. M. sail makers, Liverpool, so far as regards Hannay, March 20.-Glover, G. jun. and Suter, J. K. warehouse-keepers, Liverpool, Feb. 23.Hunt, W. Morris, A. Clarke, F. and Stones, W. hosiers, Manchester, March 20.-Manser, D. and Jenner, T. attor neys, Rye, July 9, 1842.-Murray, J. and Carson, A. tea dealers, Nantwich, March 13.-Posnett, J. and Thomas, J. stone masons, Lower Tranmere, March 22.-Readdy, J. and R. as coopers, St. George's in the East, March 25. Debts paid by J. Readdy.-Smith, T. T. and Steer, G. J. stock brokers, Old Broad-st. March 25.-Smith, G. C. and E. drapers, Blockley, March 23.-Thompson, H. sen. and jun. grocers, Framlingham, March 1. Debts paid by Thompson, sen.-Turton, J. G. and W. manufacturers of fancy goods, Kirkheaton, March 16. Debts paid by Turton.-Watkins, W. and E. shoe manufacturers, Thornton-st. Horsley-down, March 25.-Whitchurch, S. and S. jun. wine merchants, Speenhamland, March 12.-Wilson, A. and J. carpenters, St. George's East, March 23. Debts paid by Joshua Wilson. Insolvents Petitioning the Courts of Bankruptcy. Cockerell, J. jun. blacksmith, Langdon-hills. Essex, April 8, at eleven.-Diddell, M. out of business, Downham, April 15, at eleven.-Doe, W. out of business, Peel-st. Kensington, March 29, at one.-Ford, T. grainer, Queen's-row, Pentonville, April 1, at eleven.-Harris, J. laundryman, Shepherd'sbush, March 29, at one.-Heath, W. carpenter, South Lambeth New-road, March 29, at eleven.-Hocknell, M. shoe maker, Tabernacle-sq. March 31, at eleven. Kemp, W. baker, Great Yarmouth, April 15, at eleven.-Lorell, A. painter, Caroline-st. Camden-town, April 15, at half-past eleven.-Norris, G. painter. Peel-st. Kensington Gravelpits, April 1, at eleven.-Ratcliff, H. baker, Springfield, April 15, at half-past eleven.-Rod, J. shoe maker, Rayleigh, March 29, at twelve.-Shalders, H. agent, Helmet-court, Strand, March 29, at twelve.-Tatman, E. baker, Deptford, April 15, at eleven.-Vessey, T. S. attorney, Arbour-st. East, Stepney, March 29, at eleven.-Winstanley, T. commercial agent, Clifton-place, Finsbury, March 29, at one.—Yates, W. surgeon dentist, April 1, at eleven. PETITIONS TO BE HEARD IN THE COUNTRY. Allsop, B. framework knitter, Leicester, April 9, at eleven, Nottingham.-Birks, W. crate maker, Longton, April 13, at eleven, Birmingham.--Calladine, R. grocer, Sillby, April 9, at engineer, Hansworth, April 3, at eleven, Birmingham.eleven, Nottingham.-Eckstein, G. P. foreman to a civil Loddor, J. baker, Bishop's Hull, March 30, at eleven, Exeter.-Pearson, G. joiner, Manchester, March 31, at eleven, Manchester.-Perkins, T. butcher, Kates Hill, bailiff, Llangathaw, April 16, at twelve, Bristol.-Roscow, April 13, at half-past eleven, Birmingham.-Puntan, H. Tozer, S. J. plumber, Little Birch, April 1, at half-past T. beer seller, Farnworth, March 30, at twelve, Manchester. ten, Birmingham. MEETINGS IN THE COUNTRY. Grey, T. schoolmaster, Newcastle, April 13, at half-past eleven, Newcastle. Gazette, March 26. PETITIONS TO BE HEARD AT BASINGHALLSTREET. Brownlow, R. hotpresser, Downham-rd. Islington, April 15, at one.-Craddock, J. G. printer, Holywell-st. April 7, at eleven.-Cubitt, R. haberdasher. Cable-st. St. George'sin-the-East, April 8, at eleven.-Gingell, F. painter, Gillingham, April 15, at twelve.-Hall, T. out of business, Brunswick-st. Stamford-st. April 8, at eleven.-Ketley, J. coal carter, Upminster, April 8, at eleven. PETITIONS TO BE HEARD IN THE COUNTRY. Baxendale, J. collier, Adlington, March 31, at twelve, Manchester.-Davies, H. G. clerk, Liverpool, April 7, at eleven, Liverpool.-Dickson, T. out of business, Thirsk, April 20, at eleven, Leeds.-Dillon, J. Manchester, March 31, at twelve, Manchester.-Duggins, W. blacksmith, A-ton, April 3, at eleven, Birmingham.-Goodall, C. and Furniss, R. painters, Wakefield, April 23, at eleven, Leeds.-Hartley, W. wool dealer, Bradford, April 20, at eleven, Leeds.Hazeldine, H. horse dealer, Oldswinford, April 3, at eleven, Birmingham.-M Ewen, D. provision shop keeper, April 8, at twelve, Manchester. MEETINGS IN THE COUNTRY. From the Gazette of Friday, April 2. Jones, H. oilman, 14, Grosvenor-row, Pimlico.-Cook, APRIL 10.] REPORTS THE LAW TIMES. delay and expense the plaintiff finds that he has not Page got a decree that suits him. CONTENTS. 17 Lord Chancellor's Court Vice-Chancellor Bruce's Court Vice-Chancellor Wigram's Court....... Circuit Reports 25 25 25 26 26 26 26 26 26 27 27 29 29 29 ..... 29 Stamping executed Deeds and Agreements.... Bacon.-Some delay had arisen from the necessity of communicating with the West Indies. Wood in reply.-It has been settled that an executor may discharge himself by payment to a creditor; and by handing over the estate to the lawful executor, he may also discharge himself, provided he do so before an action is brought. If the Vice-Chancellor's decision be right, an executor de son tort can never be settled without a suit. The LORD CHANCELLOR.-I cannot preclude any other person interested in the estate from taking the account. Wood.-The addition must be refused on the ground Nov. 9.-The LORD CHANCELLOR.-In this case stances of the case, justice required should be done. Friday, March 5. Where two suits had been instituted for the administra- This was an appeal by Mr. Flight the plaintiff in the first suit and a defendant in the second, against a Marriott is the executor and trustee of the part of the decree of the Vice-Chancellor Knight Bruce. will of Mr. Phillips the testator in these causes, who gave the residue of his real and personal estates to James, Thomas, and William Rollings, when the youngest of them should attain the age of twentyIn May 1844, W. Rollings, the youngest one. nephew, being then twenty-four years of age, Thomas and William had borrowed of Mr. Flight, a moneylender, the suns of 100. and 851. upon bills of exchange, which had been dishonoured. They then entered into a treaty with Flight for a loan of 1,500l. for a year, which was completed on the 28th of June, 1844, in the following manner :-It was agreed that if Flight died before the end of the year that the defendants T. and W. Rollings should not be called upon to repay the principal at all; but if Flight lived until W. Rollings attained twenty-five in the followNow, in the first place, this appears to me to pro-ing year, that they would pay to Flight 2851. above ceed on an erroneous view of the practice of the Court. the principal sum of 1,500l. It was also agreed that defendants. Where a suit was instituted against an administratrix It is quite true that where the accountability of the the life of W. Rollings should be insured by Flight and her son, as executor de son tort, and on a decree defendant to the plaintiff is established, and a settled himself for 2,000l. at a yearly premium of 1067.; and for an account generally, with liberty to state special or stated account is suggested by the answer, it is the one of the terms of the policy was, that if the premium circumstances, it was held, that such was the proper practice of the Court to introduce such a direction as should be regularly paid for twenty years, the money form of decree: the son's defence being, that he is now asked, because in such a case the direction insured should be paid to W. Rollings himself, if then had accounted to the administratrix, and that no does not go to the root of the accountability of the living. A similar assurance of 300l. was effected on special direction on the subject was necessary; and party; but, assuming him to be accountable, it merely the life of T. Rollings. Formal policies of assurance even had such a special direction been necessary, this enables the master, in a certain event, to qualify the were executed by Flight; and the first year's preBut here the account miums on the two policies were deducted from the Court would not, after a delay of nine years in the mode of taking the account. is alleged to have been settled not with the plaintiff advance, as were also the amount two bills of exchange, Master's office, have altered the decree. An executor de son tort is subject to all the liabilities but with a co-defendant, and the result of introducing and the costs of the arrangement. The difference was such a direction in a case of that description would made up by a check for 1,100l. On the 28th of June, of an ordinary executor. be that there would be a decree directing account 1844, three bills were ante-dated on the 31st of May, against two defendants, and at the same time direct- and accepted by T. and W. Rollings, payable twelve ing the Master to enquire into a fact which, if estab- months after date, for three sums, making altogether lished, would shew that the Court was wrong in the above-mentioned sum of 1,7851. At the same in the Levant Mining Company, for 5251.; and gave decreeing an account against one of the defendants time, Flight sold to the two Rollings certain shares at all. them a written guarantee that such shares would, upon an average, produce the yearly income of 257. 6s. All these sums amounted to the aggregate sum of 2,4457.; for which T. and W. Rollings assigned their shares of the residuary real and personal estate of the testator, Thomas Phillips, to Flight, as a security. The money not having been paid on the 28th of June, 1845, Flight soon afterwards filed his bill against the testator's executor for the administration of his shares of T. and W. Rollings in the residue. Flight estate, and for payment of the sum of 2,4451. out of the was made a defendant in the second suit, and was served with a copy of the bill. The Vice-Chancellor, at the hearing of the two causes, dismissed Flight's bill with costs, and ordered him to be dismissed out of the other suit, simply on the ground that the securities were usurious and oppressive. From that part of the decree Flight appealed. This was an appeal from a decision of Vice-Chaucellor Knight Bruce. The testator in the cause having appointed his wife executor, his son, who was in Demerara, where much of the estate was, took possession of the testator's estate in Demerara, and afterwards accounted for it to his mother, the executrix, with whom he stated and settled an account. The bill was filed against the executrix, and also against the son as executor de son tort. The son, in his answer, stated the settlement of the account with the executrix, but it was not proved at the hearing. The decree for taking the accounts was made in 1834, and the Master allowed the account as stated and settled between the son and the executrix. The ViceChancellor held, that the Master under the decree had no power to make such an allowance, for which purpose a special direction to that effect would have been necessary. Bacon, for the appeal. Wood and Campbell, contrà. The LORD CHANCELLOR.-Do you mean to say executors cannot settle an account with a person who has received money (part of the estate) with authority? Is not an executor a person authorised by law to receive the money and entitled to settle an account? Bacon, for the plaintiff.-The account may have been settled by collusion. The LORD CHANCELLOR.-It is contended that the son was executor de son tort; but if so, he is at liberty to discharge himself by shewing that he has accounted to the person to whom money due to the It may stand over if estate was properly payable. Mr. Bacon thinks he can produce any authorities. It does not appear clear that he was executor de son tort; his father died, and he did what was necessary for the preservation of the property in Demerara. Nov. 7.-Bacon had not been able to find any authority directly applicable; but the principle for which he contended was supported by Trench v. Priest, 2 Sim. Rep. 137; Curtis v. Burl, ib. 587; Cox v. Clapp, 2 Barn. & Adl. 315; Webster v. Webster, 10 Ves. 93. An agent who has done wrong is personally liable. The LORD CHANCELLOR.-The cause has been nine years in the Master's office, and after all that VOL. IX. No. 210. Another objection to what is asked is, that it would If, therefore, the case were quite new, and suit were Stuart, K. Parker, and Rogers, for Flight, contended that there was nothing usurious in the transaction, because in every instance the principal was put in hazard; and, at all events, Flight ought to be paid the sum he had actually advanced. That the That recently Vice-Chancellor's decree was clearly wrong; for it had the effect of shutting out Flight from proving his debt, or even offering it for proof. There was no evidence of the usury laws had been greatly altered by the 2 and 3 Vict. c. 37. fraud or oppression; but the contract was one by two persons dealing with a contingent interest, upon terms which they entirely understood, and with which, on obtaining the loan, they were satisfied. They cited and mentioned Flight v. Chaplin, 2 Barn. & Adl.; King v. Hamlet, 4 Sim. 223, 2 Myl. & K. 456; Barker v. Van Sommer, 1 Bro. C. C. 150; Downes v. Green, 12 Mees. & Wels. 491. The clear principle was, that where all the money lent was risked, there Rolt and R. Palmer, for the assignees and trustees was not, even under the statute of Anne, any usury. of W. and T. Rollings, one of whom had become bankrupt, and the other had made an assignment for the benefit of his creditors, contended that the real transaction was one of loan, secured upon a fund composed of the produce of real and personal estate, and as such clearly came within the usury laws. That all the other matters were mere devices to take usurious interest, and that the pretended risks were only nominal. That the securities having been impeached on the ground of usury, it was incumbent on Flight to prove the transaction fair. The securities being charged on law, were still void if usurious. They cited and referred to Chesterfield v. Janssen, 1 Atk. 340, 2 Ves. Sen. 143; Burton's case, 5 Coke 69; Clayton's case, ibid.; Mason v. Abdy, Carthew's Reports. They read the evidence of Flight's clerk and some items of his attorney's bill in the transaction in order to show usury. The LORD CHANCELLOR.-If the bill of costs had been in the possesssion of Mr. Flight, it might have been evidence against him; but if it was paid by the other party, as it appears to have been, and is not shewn to have been in his own possession, it is not evidence against him. Rolt. The points both of fraud and usury have been raised by the answers. The LORD CHANCELLOR.-If fraud had been relied on, the defendants should have filed a bill to set aside the securities. It is a transaction accomplished. The matter is not brought before the Court in such a manner as will enable it to deal with the case of fraud. Roll. It is therefore that usury is relied on.-He then went minutely through the transaction, to show that a profit had been taken as interest upon the money advanced, which would be deemed usurious. The LORD CHANCELLOR.-The money seems not to have been advanced until the 28th of June, though interest was charged from the 31st of May. Rolt. And besides, these several matters do not form a succession of transactions, but only one transaction, completed on the 28th of June. The LORD CHANCELLOR.-I want to know the particular transaction or part of a transaction you rely upon to shew usury. There must be a taking or reservation of more interest than 5 per cent. to constitute usury. Rolt. If more than the fair value of the risk is charged, the transaction will be usurious, according to the cases before cited. (Murray v. Harding, 10 Blackst. Rep. 859, 862.) The LORD CHANCELLOR.-Does the answer so set forth the particulars of the transaction as to raise that issue? Rolt read portions of the answers. It had been proved that the real value of the mining shares, for which 5251. had been charged, was less than 1007. (Cloyer v. Edwards, Cowper's Reports, 112; Richards v. Brown, ibid. 770.) In Barker v. Van Sommer, supra, it was said, where they talk about a loan, the transaction will be usurious whatever be the form. The LORD CHANCELLOR.-The question is, what is the real transaction? That may be a circumstance. Rolt cited Davis v. Harding, 2 Camph. N. P. C. 375; Cloves v. Gouch, 3 Barn. & Ald.; Hodkisson v. Wyatt, 4 Adol. & Ellis; Lowe v. Waller, 2 Dougl. 735; Prall v. Willes, 1 Espinasse, 40. Jas. Parker, Cooke, Teed, Willcock, Bacon, Elmsley, Drewry, Boyle, Terrell, and Gordon, on behalf of various incumbrancers and others, defendants to the suit of Sowden v. Marriott, supported the ViceChancellor's decree. Stuart, in reply, insisted that an inquiry should be directed before the Master as to the consideration paid by Flight, and that there was no usury. The LORD CHANCELLOR.-I have given much attention to this complicated case during the argument, and in my view of the facts, I think the best course will be to let Mr. Flight bring an action on the covenant contained in the security of the 28th of June, 1844, by W. Rollings and T. Rollings, to pay the sum of 2,4457. secured by that deed to be paid. By that action all these transactions will be sifted, and either established or declared void. The bill in the first cause must be retained in the meantime, with liberty to Flight to apply to the Court as he may be advised. He will of course still stand as a party in the other cause, and in both respects the decree of the Vice-Chancellor must be reversed. bring an action upon the covenant contained in his Rolt. On the notice of motion, the assignees had The LORD CHANCELLOR.-As to examining the parties, the Court always avoids a direction of that sort, unless the facts are only within the knowledge of the parties. Willcock, for Culverwell, an incumbrancer for Rolt.-Culverwell is a creditor who advanced money The LORD CHANCELLOR. The plaintiff has client at law without the leave of the Court. The LORD CHANCELLOR.-The assignees and W. Rolt. They should also have the control of the pleadings. The LORD CHANCELLOR.-There can be no difficulty, if the parties do what they ought to do. Friday, March 26. LANDER . PARR. stance. Whether the Court will not require security for costs money in the savings-bank; and the solicitor, Mr. Gedge, was a man high in the confidence of his clients, having a considerable practice. He had not volunteered his interference in the case, but had acted for Mrs. Lander through sympathy, upon her statement of the hardship of her case, and in consequence of the recommendation of the case by another client of great respectability. The next friend, Warner, had readily agreed to undertake the responsibility of that office, after full explanation, from her desire to serve Mrs. Lander. She was, in fact, the only friend Mrs. Lander had in England to whom her solicitor could apply. They cited and referred to Dowden v. Hook, 8 Beav. 399; Anon. 1 Ves. sen. 409; Ogilvie v. Hearne, 11 Ves. 598; Fellows v. Barrett, 1 Keen, 119. Freeling, for the defendant Parr, opposed the motion, aud contended that the defendant was entitled to the security of a substantial person as next friend, in case the bill should be dismissed with costs; and he referred to the bill to shew that the defendant Parr was the representative of a trustee who had died before the act chiefly complained of by the bill as a fraud had been done. The LORD CHANCELLOR.-The practice of the court protects a defendant sued by persons out of the jurisdiction, by giving security for costs; but if there being a nominal next friend is to prevent the rule applying, the rule itself would be often defeated. In Dowden v. Hook that question did not arise. That was a mere question as to the next friend, without questioning the authorities as to the next friend. What I want to know is, what is the practice of the court where the defendant would be entitled to security for costs, if it were not that one of the plaintiffs sues by a next friend? It would be very easy to evade that rule, by getting an infant, or any one who, by the practice of the court, ought to sue by a next friend, to be a co-plaintiff, and the defendant loses his security. It is laying down a rule and furnishing a means of evading it. Stuart. If there be one plaintiff within the jurisdiction, it will prevent the defendant from being entitled to security for costs. The LORD CHANCELLOR.-This affects the general practice of the court. I should be very glad to be thoroughly informed what has been done in such cases before I dispose of it. You had better mention it again. It will regulate the practice for the future. Stuart. That will leave the question whether this next friend is to be removed. The great point is, whether this next friend is to be removed. The LORD CHANCELLOR.-I think it will be better that security should be given for costs generally, and that the married woman should continue to act by her present next friend. I find nothing against the next friend; on the contrary, it seems to me to be an act of friend. ship towards a person who has gone abroad. Neither can I see any thing to blame in the conduct of the plaintiff's solicitor. As to his being interested, no doubt he is interested in the result, because he has an interest in the cause; notwithstanding that, there seems to be no reason to suppose that he will not be well disposed to do justice to the parties on whose behalf he is security. He had not displayed any improper interest in the cause. I think that the best course for all parties will be, that the plaintiff should consent to give security for costs according to the practice of the Court where plaintiffs are out of the jurisdiction; and the plaintiffs so consenting, the order of the Master of the Rolls, directing the substitution of another next friend, must be discharged. Freeling applied for costs of the appeal. The LORD CHANCELLOR.-I have varied the order of the Master of the Rolls, and there will therefore COURT. Friday, March 13. EDGE v. DUKE. In this case, reported in the LAW TIMES of last week, in the Court of the Master of the Rolls, it appeared that a trust had been created by marriage settlement, for the benefit of Mr. and Mrs. Lander and their children. The property consisted of a real estate of the value of 4,000l. and of 1,8181. Consols. The latter had been sold out and the money advanced to Mr. Lander by the trustees, upon the security of his life interest in the real estate, and a policy of assurance on his life. In the year 1826, these securities were given up to enable Lander to sell his life interest, on the pretence that Mr. Lander had repaid the sum of 1,500l. the amount for which the stock had been sold. In 1846, the children being all of age, an application was made to Mr. Gedye, solicitor, by an old client be no costs. of respectability, to lend them 3,000l. on the security of the real estate, which he consented to do. On VICE-CHANCELLOR OF ENGLAND'S examining their title, it was found that the loan of the 1,5007. had not been repaid, nor the trust stock replaced, and that the trustees had conducted themselves in respect of the trust in such a manner as to render themselves liable to the loss of it, and the children were advised to file a bill for its recovery, with interest. Mrs. Lander, the only one of the family who had not left to settle in America, had become so reduced in her circumstances as to be obliged to take a place as a servant, and had, since this discovery, joined her children there. She had a lifeinterest to her separate use in the stock which had been sold out. H. Warner, formerly her fellowservant, and then cook to Mr. Gedye, the plaintiff's solicitor, had consented to appear in the suit as her Rolt, for the assignees of Thomas Rollings in bank next friend. The defendant Parr, the sole surviving ruptcy, who were also the trustees of William Rol- trustee, had moved in the court below that some lings under his deed of assignment for the benefit of other more substantial person should be substituted creditors. The assignees required that the action for the next friend, or that security should be given directed to be brought by Flight under the decree as to pay costs incident to the suit. To this application varied by the Lord Chancellor, should be brought the Master of the Rolls had acceded; intimating that against them, or, at all events, that they should have the bill filed appeared to him to have for its object the the conduct of the defence. In strictness, the only per-increase of the solicitor's security for the mortgage on son against whom the action could be commenced by Wright was William Rollings, who, in consequence of the assignment had no real interest in offering an effectual defence. He therefore proposed to alter the minutes, to direct that Flight should be at liberty to March 20. These causes were spoken to upon the minutes. the estate. From this order the plaintiff now ap- Stuart and Welford moved to discharge the order. Practice-Injunction― Amendment without prejudice to-Want of due diligence. When a plaintiff has exercised proper diligence in the progress of a suit and in support of an injunction, and at length conceives it to be necessary to amend by adding a party, this does not amount to such a case of due diligence as will entitle him to an order to amend when he has suffered the usual time for amen ment to expire. By 60th Order, 8th May, 1845, it is directed that the plaintiff in an injunction cause having obtained the common injunction to stay proceedings at law (either before or after the answer of a defendant is put in, and whether such injunction be or be not continued to the hearing of the cause) obtain one order as of course to amend his bill without prejudice to the injunction; and if such bill be amended pursuant to such order, such defendant may thereupon, and although he may not have put in his answer to such bill or the amendments thereof, move the Court on notice to dissolve the injunction, on the ground that such bill as amended does not, even if the amend ment be true, entitle the plaintiff thereunto, APRIL 10.] THE LAW TIMES. dict, leave being reserved for the defendant to move Bethel and Chicester, in support of the motion, con- By the 35th Article of the 16th of the above Orders Stuart and Bigg appeared in support of the motion. Saturday, March 27. HEATH V. UNWIN. Patent-Infringement of—Action at Law-Injunction. The Court of Chancery will not refuse to grant or continue an injunction merely on the ground that a defendant has succeeded at law upon the question whether he has infringed the plaintiff's patent right or not, the Court of Exchequer having decided that there had been no infringement. The animus with which a party may have committed a wrongful act is only to be taken into account in criminal matters, and has nothing to do where the question is respecting an injury done to a man's civil rights. VICE-CHANCELLOR KNIGHT Feb. 19 and 22. Mary Rebecca Falkner, one of the defendants in This was a bill filed for an injunction to restrain the defendant and his workmen from using carburet or oxide of manganese with coal-tar, or other carbonaceous matter, in crucibles in preparing cast-steel, or putting forth the plaintiff's invention as his own. The motion which had stood over was now made. It appears that in the year 1839 the plaintiff obtained his patent for an improved method of manufacturing cast-steel, and by his specification set forth that his invention consisted in the carburet of manganese, in any process whereby iron was converted into caststeel; and particularly in putting common bars of blistered steel into a crucible mingled with malleable or cast-iron in small pieces, and carbonaceous matter, and about a thirtieth part of their weight of carburet of manganese, and exposing the crucible to a melting beat, sufficient for the purpose. Carburet of manC. M. Roupell now, on behalf of the plaintiff, applied ganese is a metallic substance, composed of black oxide of manganese and carbon, and is well known; to the Court, upon the Master's certificate, for a and the plaintiff claimed no more than the manufac- habeas corpus cum causis to bring the defendant to the turing this substance as his exclusive invention. Some bar of the court to answer her contempt, and for an time after the date of the patent, the defendant min- order that the proper officer should attend at the return gled black oxide of manganese, carbon, and blistered of the writ with the record, that the same might be steel in a crucible; and this mixture was proved by taken pro confesso against the defendant. A similar the evidence of scientific persons, when fused, to be-order had been made by the Vice-Chancellor of come carburet of manganese, without the agency of the blistered steel being called into action, which required a much greater heat before it would become fused. This circumstance, however, did not appear to have been known to the defendant. The plaintiff had brought an action at law against the defendant, but was nonsuited; but in a subsequent action he obtained a ver England Venables v. Bradon. The VICE-CHANCELLOR, after consulting with the Registrar, made the order without requiring notice to be served on the defendant. Feb. 27.-The defendant being this day brought to (a) See Law Times, ante, p. 405. the bar of the court, after some discussion it was Feb. 20 and 22, and March 19. Practice-Plea-49th Order of May 1845. the discovery, it is not a plea to the whole bill within Where a plea is to the whole of the relief and to part of the meaning of the 49th Order of May 1845. This was a motion on behalf of the defendant in the suit, that a plea might be taken out of the paper, it having been irregularly introduced there, and that the plaintiff might be ordered to pay the defendant's costs occasioned by the plea having been irregu The three weeks for setting down the larly set down. The bill was filed on the 30th of October last; and on the 23rd of January the plea was filed. plea expired on the 13th of February, and the plaintiff obtained an order, dated the 12th of February, to set it down, but did not, in consequence of a mistake of the clerk of the plaintiff's solicitor, set the plea down until the 15th of February. Russell and Toller, for the defendants, now moved that the plea so set down might be taken out of the paper, and the defendant's costs be paid by the plaintiff. Stevens, for the plaintiff, said that the order to set down the plea was obtained in due time, and that, through mistake alone, the plea was not set down. The 49th Order of May 1845 differed in terms from the 19th article of the 16th Order of that date; the former order speaking of setting down, and the latter causing to be set down. The VICE-CHANCELLOR.-It seems to me that the plea has found its way into the book irregularly, and that the plaintiff has brought it there. If this can be shewn not to have been the case, the matter may be viewed differently. I shall grant the defendant's motion without prejudice to an application by the plaintiff to amend. Feb. 22.-This case was again mentioned, and the decision in Matthews v. Chichester, 11 Jur. 49, was cited. The VICE-CHANCELLOR said, that it was a rule of practice laid down by the head of the Court, and that he felt himself bound to follow it; he therefore granted the defendant's motion. March 19.-On the 6th of March the plaintiff filed On the 10th exceptions to the defendant's answer. of March the defendant, pursuant to the 49th Order of May 1845, obtained an order as of course to dismiss the bill. Wigram and Stevens now, by leave, moved that the The bill related to a partorder of the 10th of March might be discharged for irregularity, with costs. nership, and the plea was to the whole of the relief, and to such part of the discovery as related to the partnership matters. The plea was not to the whole of the discovery, and therefore was not a plea to the whole bill within the meaning of the 49th Order of May 1845. That Order provides that where the plea is to the whole bill, the defendant, by whom such plea was filed, may, at any time after the expiration of the three weeks before mentioned, obtain, Russell and Toller, for the defendants, contended as of course, an order to dismiss the bill. that this was a plea to the whole bill within the meaning of the 49th Order. The VICE-CHANCELLOR said that ever since he had known the Court he had considered that a plea relief and part only of the discovery was another. He Assuming his to the whole bill was one thing, and a plea to all the was not aware it was not so now. opinion of the language of the Court to be correct, he found the order before him speaking only of a plea to the whole bill, and he must therefore construe that as meaning not a plea to part of the bill. He was Order discharged with costs, of opinion, therefore, that if this order could not be sustained by reference to the 49th Order, it could not Wednesday, Feb. 24. be sustained at all. JOHNSON v. BARNES. Practice-Irregular service of subpœna. Where the copy of a subpæna has been served upon a defendant without the indorsement required by the 3rd Order of December 1833, it is the right of the defendant, if he come speedily, to come to the court to have the service set aside with costs. Where an irregular service of a subpæna had been made in November, and the plaintiff had obtained an order to enter an appearance for the defendant, upon an erroneous allegation that the writ had been duly served, the Court, upon the defendant's application in February, directed the service and order to be set aside with costs. |