CUMBERLAND. Carlisle, Saturday, May 8. (Before T. HASTINGS INGHAM, Esq.) Unsatisfied judgments-Case of Rudd v. Dobson (1 County Courts Chronicle) explained. The second court for this district was holden as above, when 250 cases stood for trial. His HONOUR, before commencing the business of the court, said, "I wish to remove an erroneous impression which may exist owing to some remarks made in that useful new periodical the COUNTY COURTS CHRONICLE, upon the case of Rudd v. Dobson, as decided by me at Appleby. I entertain no doubt but that an unsatisfied judgment in the old county court can be recovered by an action in this court, simply on the ground that every such judgment is a debt. The case of Rudd v. Dobson was decided upon the ground that a judgment in the County Court cannot be enforced under the 98th section of the new statute, because, although the 4th section of that statute would seem to intend this, yet, on reference to the 98th section, it will be found that it only applies to any unsatisfied judgment or order of any court holden under the new Act, or under any Act repealed by that Act. Now the old County Court not being holden under any Act, I am of opinion that the proper mode of proceeding upon these old judgments is by original summons." Alston, Wednesday, May 5. RIDLEY V. BAXTER and ANOTHER. (Jury case.) Disturbance of common. Stockall for the plaintiff; Turnbull for the defendants. This was an action for disturbance of common and injury to sheep. The plaintiff proved that the defendants were in the constant habit of setting their dogs upon his sheep, and driving them off the better portions of the common, and putting their own sheep upon them. The defendants set up a right of exclu. sive pasture upon the particular portion of the common, but entirely failed in establishing it. His HONOUR told the jury they were aware what broils and conflicts had been going on for years about this supposed right, but that upon these uninclosed commons all the commoners had equal rights, and their sheep ought to be quietly permitted to pasture wherever they might wander, and whoever disturbed those sheep, and injury might ensue, as in this case, the parties were liable. Verdict for the plaintiff, 101. damages. KENT. Faversham and Sittingbourne. not sufficient ground for an adjournment of the hear ing, and it will only be granted on payment of all the costs of the day. The five clear days' notice of special defence is to be exclusive both of the day of service and the day of hearing. Plaint for the use and occupation of a dwellinghouse, the use and hire of forty cows, and money found due on account stated; plaintiff's claim being 317. 48. 4d. the excess of 111. 4s. 4d. had been abandoned. An application was now made on behalf of plaintiff for leave to adjourn the hearing until next court, upon ground of the unavoidable absence of plaintiff's attorney. The application was opposed by defendant's attorney, except upon payment of the costs of the day. Notice of this application had been served on defendant the previous day. The JUDGE observed that the present was no ground for such an application. He was disposed to nonsuit the plaintiff, and would only give leave to adjourn upon payment by plaintiff of the costs of the day, defendant's mileage, he having appeared to the summons, and the costs of his attorney. The Judge in this case also decided that the five clear days' notice of special defence must be held to be exclusive of the last day and the day on which the notice is served. SCUTT v. PHILLIPS. Costs. Plaintiff having withdrawn his plaint after receiving notice of special defence, defendant is entitled to his costs up to the period of such withdrawing. In this case plaintiff had withdrawn the cause after having received notice of special defence under Statute of Limitations. The clerk of the court received notice pursuant to rule more than five clear days' before the court-day, and thereupon communicated such notice to plaintiff. The JUDGE, however, held that, as the cause was withdrawn without the consent of defendant, he was entitled to his costs up to the time of withdrawal, and granted an application now made by defendant's attorney for such costs. WORCESTERSHIRE. Shipston on Stour, June 4. (Before F. TROTTER, Esq.) GREENHILL v. Davies. Practice-Special defence-Costs of notice thereof, when cause withdrawn. Action for goods sold and delivered. The defendant gave notice of the Statute of Limitations as special defence. When he delivered the no. tice the clerk charged 1s. 1d. fees for the same. The plaintiff, on receiving the notice, withdrew the cause. Travers, of Campden, for defendant, applied for the above fees on the ground that the withdrawal of the cause was equivalent to judgment of non pros. ; but his Honour stated that as the cause was not before him, he conceived he had no power to order payment of same by the plaintiff. On Friday and Saturday, the 4th and 5th days of June, Charles Harwood, esq. the learned judge, opened his second courts. At Faversham fifty-five causes, and at Sittingbourne seventy-one causes, were Travers then called his Honour's attention to the set down for trial. Out of the foregoing numbers 88th section of the Act, and to the hardship that three summonses could not be effected in consequence would be inflicted on the defendant if the plaintiff of not being taken out till four o'clock in the after-could not be compelled to pay these costs. noon on the last day of serving, i. e. ten clear days His HONOUR made a minute of the case, and pro prior to the day of trial; the judge recommended that in future all summonses for any court day should be applied for fourteen clear days previous to the day of hearing the same, in order to afford sufficient time to the sub-bailiff to effect a personal service, and to ascertain (where that cannot be accomplished) that it had come to the defendant's knowledge ten clear days before the day of hearing. There were in all about eleven causes settled to plaintiffs and paid into court. The residue of the cases were chiefly amongst agricultural labourers, and the amounts so small that orders were made to pay by monthly and weekly instalments. Similar orders were made at the first courts he'd at the above-named places. When at Faversham there were only eighteen causes, and at Sittingbourne only ten causes, set down for trial; out of which number two were struck out, two withdrawn, and about ten settled by paying plaintiffs and into court, which rendered the highbailiff's fees next to nothing. The business of the County Courts in this locality, unless greatly augmented, cannot possibly pay for the trouble and incidental expenses necessary to enable the sub-bailiff to discharge his several duties; and at present the high-bailiff has no remuneration for the responsibility of his office, his time, his trouble, or his travelling expenses, in proceeding from one court to the other in the execution of his important duties. It is to be hoped the Legislature will grant some compensation forthwith, as the high-bailiffs cannot afford to be out of pocket. mised to give his opinion at the next Court. TO THE EDITOR OF THE LAW TIMES. SIR,-Having occasion to issue a warrant of commitment against a defendant, where he had appeared and was examined at the time of hearing under sec. 101 of the Act 9 & 10 Vict. c. 95, I found the Form of Warrant, as given-in the Rules of Practice and Forms, No. 35, so very defective, that I am induced to send you one corrected according to my notion of its applicability, and to make a few remarks upon it in this letter for your consideration and that of other clerks of courts. I would first remark upon the second recital in the Form: "And whereas the said defendant having personally appeared to the said summons." Now there is not one word said in the previous part of the warrant about a summons, but merely that the "plaintiff, by the judgment of the said Court in a certain suit, wherein the said Court had jurisdiction, recovered against the above-named defendant," &c. and thereupon it was ordered, &c. the second recital should run, To make the warrant consistent, it strikes me that And whereas the said defendant having personally appeared to the summons in the said suit," &c. It seems also, that the words "upon the application of the said plaintiff," in the same recital, are unnecessary, as you will observe, on reference to the section 101 of the Act, "the judge, at the hearing of the cause, &c. if the judgment shall be given against the defendant, shall have the same power and authority of examining the defendant, and the plaintiff, and other parties, touching the several things hereinbefore mentioned, and of committing the defendant to prison, and of making an order, as he might have and exercise The unavoidable absence of the plaintiff's attorney is under the provisions herein before contained, in case DORSETSHIRE. Wareham, Monday, June 7. (Before EDWARD EVERETT, Esq.) SYMONDS v. HARTNELL. the plaintiff had obtained a summons after the judg ment obtained as hereinbefore mentioned." (See secs. 98 and 99.) By this section of the Act it does not seem at all necessary that the plaintiff should make application, but it is highly necessary that the judge should, at the time of the hearing, make an order of commit. ment, in default of obeying the previous order of the Court as to paying the debt, &c. In the third recital, I think the words " by a certain order, bearing date the day of should be omitted, and after the following words, "did order and adjudge," these should be inserted: "that in default of payment of the said sums of £ and £ in " pursuance of the order of the said Court, the said defendant should be com mitted," &c. Then should come a fourth recital, to this effect: "And whereas the said defendant hath disobeyed the order of the said Court, and the said sums of £ and £ remain unpaid to the said plaintiff." This would shew a clear connection of facts upon which the warrant is founded, which I take to be highly necessary. I have but one more remark to make, which will apply to this and the other wa rants of commitment, and it is on that part addressed to the gaoler "to receive the said defendant and him safely to keep in the for the term of days from the arrest under this warrant." Now, it not unfrequently happens that the defendant is arrested under the warrant one, two, or three days before he is taken to gaol, and the keeper of the gaol has nothing but the assertion of the bailiff or the party as to the time of arrest. Should not the warrant rather be, "from the time of his delivery to you," instead of "from the arrest?" I think this very important to the keeper of the gaol, and to the defendant himself. If you will submit these points to the consideration of the Profession, you will much oblige Salisbury, June 4, 1847. Sir, yours, &c. W. D. WHITMARSH. COUNTY COURTS. TO THE EDITOR OF THE LAW TIMEs. SIR, Observing in the current number of the LAW TIMES a report of the discreditable Chester County Court case, it put me in mind of a case which occurred in the Radnorshire County Court about s fortnight since. It was a solemn argument of a demurrer to a declaration filed in an action of debt com menced twelve months previously for the recovery of about twenty shillings! Such monstrous abuses as the above compelled the public, and also very many the wretched and expensive system which until lately of the attorneys, to call for and enforce a reform of prevailed. By the practice under the new Act, a defendant is not allowed to settle an action after five days before and called in Court, and the payment of calling-fees; the opening of the court, under pain of being exposed nor can a plaintiff and defendant compromise after debt and costs to the clerk with a further fee on paysummons, without actually sending the amount of ing in. This part of the practice, and some other portions, call loudly for amendment. I am, Sir, &c. June 7, 1847. STUDENS. APPOINTMENTS UNDER THE COUNTY COURTS ACT. An address has been moved by Sir F. Thesiger for a return of all the judges, clerks, and other officers appointed under the Act 9 & 10 Vict. c. 95, intituled "An Act for the more Easy Recovery of Small Debts and Demands in England;" and of the courts to which they have been respectively appointed, distinguishing in such return the judges, clerks, and other officers who have been newly appointed under the said Act, from the judges, clerks, and other officers who held any offices in local courts existing at the time of the passing of the said Act; and in these latter cases specifying whether the judges are barristers or attorneys, and the names of the offices so previously held; together with a retura of the remuneration which has been awarded or agreed to be awarded to any of such judges, clerks, or other officers. ETC. PROMOTIONS, APPOINTMENTS, [Clerks of the Peace for Counties, Cities, and Boroughs will oblige by regularly forwarding the names and addresses of all new Magistrates who may qualify.] The Queen has been pleased to appoint Charles Anderson, esq. to be Chief Commissary of Police for the Island of Mauritius, and T. J. Hugon, esq. to be Protector of Immigrants into that island. The Queen has been pleased to appoint John Mor gan, esq. to be her Majesty's Consul at Rio Grande do Sul. Jacop Kayat, esq. to be her Majesty's Consul at Jaffa. The Queen has been pleased to appoint Assaad 2 H -1 and writs attend with the record of the bill at the hearing of the cause. The 76th of the same General Orders applies to the like practice, in cases of defendants absconding, or being served with notice. This case is briefly reported in 8 L. T. 291, but it came again before the Court, there being some difficulty as to drawing up the order. There was but one defendant who was attached for want of an answer. An order was afterwards made directing the clerk of records and writs to attend with the record of the bill on the first cause-day in last Michaelmas Term to have the bill taken pro confesso. The cause was set down by order obtained by the plaintiff, and coming on to be heard, a decree was made therein to take the bill pro confesso; but a difficulty arose as to the form of the order. of Mrs. Hudson, the testator's widow; and the other Koe and Boyle for other parties. Turner and Welford for the legal personal representatives of E. Greatwick, said, "Then living" referred to the testator's own decease, he having, in the gift of the 2501. referred to that period. ever having had any issue. The plaintiff, having taken out administration to his wife, filed his bill against the executors, and thereby claimed the 1,000l. Threeand-a-half per Cent. Stock, as being an absolute gift to his wife, subject only to the trusts, for the benefit of herself and her children, if she should have any, and so belonging to him as her legal personal representative, there being no children; and he insisted that, if the gift was not absolute, it was, in the events that had happened, undisposed of, and became distributable among the next of kin of the testator living at his death. The executors filed a general demurrer to the bill. K. Parker and Foster, for the legal personal representatives of the deceased children of the testator's Purvis and F. Bailey, in support of the demurrer. brothers, referred to the bequest of the 2501. as bear--In all the decisions in favour of absolute gifts, in ing on the time when the residuary bequest was to cases resembling the present, there was something take effect, the classes taking in equal shares and special, as in Whittell v. Dudin, 2 Jac. & W. 279. proportions. The word "annuities" applied to the interest of the stock as well as the 70l. a-year, so that it was not an absolute gift of the 1,000 itself; nor was there any positive clear gift in the first instance on the face of the will, with subsequent modifications imposed upon it. If Mrs. Scawin took only a life estate, the executors, and not the next of kin of the testator, were entitled to the 1,000l stock. They cited Mayer v. Townsend, 3 Beav. 443; Campbell v. Brownrigg, 1 Phill. 301; Gompertz v. Gompertz, 2 Phill. 107; Ring v. Hardwick, 2 Beav. 352; Hulme v. Hulme, 9 Sim. 644. Kindersley and Toller, contrà.-Absolute gifts were given to three of the children in the clause immediately preceding that containing the gift in question. The interest on the 1,000l. stock was directed to be paid as it became due, and could not be intended to be paid quarterly, like the annuity of 701. ; and there was no gift of the stock to any one unless to Harriet, and therefore the next of kin, and not the exocutors, would take. Glasse directed the attention of the Court to the 76th and 81st General Orders of the 8th of May, 1845. The MASTER of the ROLLS said, the proper course was, that when the plaintiff was in a condition to take the bill pro confesso, he should obtain an order of the Court to do so; and he was then entitled, on The MASTER of the ROLLS.-The words in this the hearing of the cause on a subsequent day, to ask will are not very accurately used or applied, but it is a decree that the bill be taken pro confesso. The quite clear that in respect of his brothers and sisters order referred to in the 81st of the General Orders of he had in contemplation such of them only as should May, 1845, for taking a bill pro confesso, was not the be "then living," that is, at the death of his wife; and decree that the bill be taken pro confesso, but the pre- he clearly also has in contemplation a class; but then liminary order commonly termed the order to take he thought of both them and their children. After the bill pro confesso. The preliminary order having conversion he directs his trustees to pay 2501. to each been obtained, the cause was heard against the de- brother and sister then living; then he directs the fendants not in default, and the clerk of records and distribution of the remaining fund (2501. to each bewrits attended with the record of the bill; the preli-ing previously deducted) in equal shares and proporminary order was then read, and as against the de- tions, between each (not all) and every of his brofaulting defendant, the Court decrees the bill to be thers and sisters, and such of their children as taken pro confesso. The practice had been uniform shall be then living, the parents and children being where an order was sought to take a bill pro confesso classed together; so that he contemplates brothers against one of several defendants; but in cases where and sisters living at the death of the tenant for life, there was only a single defendant, and he was in de- and also children, and they were to be classed togeThe MASTER of the ROLLS.-In this case, as in > fault, an irregular practice had crept in, viz. to pro- ther. He has not put in the words "then living," all others of a like kind, the question is, what, having cure the attendance of the clerk of records and writs after the words "brothers and sisters," in that regard to its general purport, is the effect of the will; on a seal-day, and at the same time, by motion, to clause, but he has done so in making the bequest of that is, whether the words by which the legacy is procure as well an order to take the bill pro confesso 2501. to each of them, and he has also done so after given import an absolute gift, modified only by ceragainst the defendant, as a decree on the merits con- the words "such of the children." No doubt, how-tain subsequent restrictions, so as that the absolute fessed. The object of the 81st General Order was to ever, "persons then living" were meant to construe gift may have its full effect in all cases in which the provide in all cases whatsoever, a uniform practice, it to mean a gift of the residue in equal shares among limitations and restrictions are not applicable; and that in the first place the preliminary order should be such of the brothers and sisters, and such of their in like manner, having regard to the whole will, obtained; then the clerk of the records and writs was children as were living at the death of the tenant for whether the effect of the legacy is to give a restricted directed to attend with the record of the bill; then life, the testator's widow, the distribution to be made gift, which is to prevail only according to the restricthe cause was set down, and the Court appointed a among them per capita, there being a clear presump- tions and limitations in the circumstances to which day for the hearing of it, which was attended by the tion of intention to that effect. they are applicable, and not further or otherwise,clerk of records and writs; then the cause was heard, that is the question. In this case I confess I cannot and the decree was made by the Court. The like find any general scheme of this will at all sufficient to practice ought to prevail where defendants had abafford me the least clue to the construction of this sconded, or had been served with notice under the 76th of the General Orders of May, 1845. Richard Hudson gave a pecuniary legacy to each of his brothers and sisters, by name, living at his death; and then bequeathed his residuary estate in trust for his wife for life, and after her decease to distribute the same equally (after first paying the legacies given to each of his brothers and sisters then living) between his brothers and sisters, and such of their children as should be then living; the parents and children to be classed together and to take in equal proportions. The residue was held to be divisible, in equal shares per capita, among such of the brothers and sisters, and their children, as were living at the death of the tenant for life. Thursday, March 4. ecutors and next of kin―Costs. A bequest was made to H. W. of a sum of money and also John Watson, by his will of the 1st of January, 1829, gave certain absolute bequests to his three Richard Hudson, by his will, dated the 9th of July, children, Charles Alfred, Diana, and Octavius, whom 1813, made the following bequests:-"I also give he afterwards appointed his executors. To a fourth to my brothers and sisters, John Hudson, Benjamin child he made the following bequest :-" I give and Hudson, Elizabeth Greatwick, Eleanor Alcock, and bequeath to my daughter, Harriet Watson, 1,000l. Ann Jones, or to such of them as shall be living at out of my Three-and-a-Half per Cent. Reduced the time of my decease, the sum of 2501. each. All Stock, and also 70l. a year during her natural life, to the rest, residue, and remainder of my estate and be paid to her in four quarterly payments after she ateffects, whether real or personal, I devise and be- tains the age of twenty-one years and six months; queath unto my executors, hereinafter named, upon which two sums I direct and devise to be under the trust, to permit my wife, Catherine Hudson, to re-trust of my executors, namely, not to permit my said ceive the rents, profits, dividends, and annual pro- daughter to assign her said annuities to any one; and ceeds thereof to and for her own sole use and benefit the interest arising from the 1,000l. as it becomes due, during her life-her own receipt to be a sufficient and to pay the same to her for her life into her own hands, proper discharge for the rents and dividends to be re- and her receipt shall be a sufficient discharge, even if ceived by her; and from and immediately after her she marry; and at her decease, upon trust to divide decease, upon trust, to sell my freehold house in Ox- the principal sum of 1,000l. equally between and ford-street, and also my leasehold houses, by auction; amongst all and every her child and children." And and it is my desire that Mr. Edward Abbott be em- the testator also gave his daughter Harriet 101. a ployed as auctioneer;-and to convert the whole of year till she attained twenty-one years and six months. my estate and effects into money, and to distribute After making a bequest to another daughter, and apthe same in equal shares and proportions (after first pointing executors and trustees, he proceeded thus:— paying thereout the sum of 2501. to each of my I devise all my money concerns in the funds, or in brothers and sisters then living) between and amongst notes, bonds, or estates mortgaged to me in fee, each and every of my brothers and sisters, and such whether freehold or copyhold, unto my said execuof their children as shall be then living; the parents tors, their heirs and assigns, it not being my intenand children to be classed together, and to share in tion that my heir-at-law may be in any way conequal proportions" (the children of Mary Hill are not cerned therewith;" and he directed his executors to included.) The testator appointed his wife, Ralph pay all the annuities and legacies. The testator died Lonsdale, and John Marks, his executors. At his in December 1829, his daughter Harriet being then death, the two brothers and three sisters named in an infant, and unmarried. In 1834 she attained the the will were living; but one of the latter, viz. Eli- age of twenty-one years and six months, and was zabeth Greatwick, died without issue in the lifetime married to the plaintiff; but in 1846 she died, without | testator himself, providing for the benefit of his children, shews such great variety of intention as this testator has shewn in the present case, that by any further consideration of the matter I could obtain the least light into his intention, to enable me to judge of what he meant to give and to construe what he meant to give to one by what he has given to others. I am therefore under the necessity of confining myself entirely to the words of the bequest made in favour of this particular daughter, Harriet Watson. It is an extremely ill-drawn and incorrect will; and as to my arriving at anything like a distinct and clear notion of what the testator would have done if the events which have arisen had come under his contemplation, there is not the least means afforded me of doing so. I must take the words as they are; and upon the best consideration that I am able to give to this matter, my opinion is that this bequest does not amount to an absolute bequest, but that it is a restricted and limited gift, as if the testator had said (but which he has not said), "I give the sum of 1,000l. to trustees for the benefit of my daughter, in trust, to pay to her the interest arising therefrom during her life, with remainder to her children after her decease." If you put the words used by the testator together, it really comes to this,-that the testator has given and bequeathed to his daughter, H. Watson, a sum, which he bequeaths to her under the trusts of his executors, with such restrictions, and so far and no further than I have mentioned; and not professing to think it can be made any clearer than it is at present, my opinion is that it is a restricted gift, and the next of kin do not take. Allow the demurrer, without costs. Kindersley asked for the costs of the suit out of the fund, but this was objected to by the other side. The MASTER of the ROLLS would not give costs out of the fund in a case on demurrer; that could only be done when an answer had been put in, and the cause brought on to a hearing in the regular way. Thursday, June 3. How do corporate bodies and public companies not incorporated prove their debts? Can a creditor who has an equitable mortgage prove his debt under any and what circumstances? State the rules regarding the bankrupt's leasehold property at the time of his bankruptcy. When may a claim be entered instead of the proof of a debt? Is there any and what property in the bankrupt's possession at the time of his bankruptcy, which will not pass to his assignees? To what property accruing to the bankrupt after the fat are the assignees entitled, under any and what circumstances? Is there any protection, and to what extent, of a purchaser from a bankrupt, where such purchaser is unacquainted with the commission of an act of bankruptcy? before the examiners at a special meeting, and un- Act. That every person who by the present Act is authorised to take and convey any poor person before any sheriff or justice, shall, in the execution of this Act in that behalf, have and exercise all the rights, privileges, powers and immunities with which a con stable is by law invested. Then follows the inter PROCEEDINGS OF LAW SOCIETIES. MENT OF THE LAW. THE LATE MR. O'CONNELL'S WILL.-It is said that the whole of the landed property in Kerry, in-pretation clause. cluding Darrynane Abbey, and the town residence in Merrion square, have been bequeathed to Mr. Maurice O'Connell, M.P. Mr. Daniel O'Connell, jun. is left 5,000l. being part of a policy of insurance effected upon the life of his father. The name of Mr. Morgan O'Connell, who is already handsomely provided for SOCIETY FOR PROMOTING THE AMEND. in the Prerogative Court, is not, it is added, mentioned in the will. These are the only items that have transpired, but as it is generally believed that there will be a tolerably heavy draw upon the funds of the What is an election by the assignees to take pre-insurance offices, consequent upon the death of Mr. mises held by the bankrupt at the time of his bank- O'Connell, it may be inferred that provision has ruptcy? been made for other members of his numerous family. PREROGATIVE COURT, Saturday, June 5. (Before Sir H. J. FUST.-The learned Judge, in disposing of several ordinary motions under the Wills Act, took occasion again to express his strong disapprobation of the various printed forms vended for the drawing up of wills. They were, he observed, calcu lated, in the first place, to deceive the parties, and in the second they opened an easy door to fraud. VI. CRIMINAL LAW, AND PROCEEDINGS State the distinctions between murder, manslaugh. ter, and homicide. The like between felony and misdemeanor. What offences are usually tried before the Courts of Quarter Session, and what offences cannot be tried before them? What is burglary, and what is housebreaking? What buildings are to be considered part of a dwelling-house in burglary and stealing from a dwelling-house? Is it burglary to break and enter a shop, warehouse, or counting-house, and stealing therein any chattel, money, or personal security? What effect has a conviction of felony on the real and personal property of the party convicted? To what extent have justices jurisdiction in cases of personal assault, and under what circumstances is such jurisdiction taken away? To what extent have they jurisdiction in trespass to real or personal property, and when taken away? What evidence is now necessary to obtain an order of affiliation in bastardy, against the putative father? For what can sureties be required of a person for good behaviour? What are the different modes by which a parochial settlement can now be gained? If a person, resident in a parish where he is not legally settled, applies for parochial relief, what is the proper course to be pursued to ascertain the place of his legal settlement? and when ascertained, under what authority and by whom is he taken; and if that parish intend to dispute the alleged legality of the settlement, before what tribunal is it to be tried, and is there any appeal against its decision? Is a witness in a criminal matter entitled, before leaving home, to be paid his travelling expenses and for his loss of time? In what cases of misdemeanor are prosecutors at the Assizes or Sessions entitled to their costs? LEGAL INTELLIGENCE. THE SMALL DEBTS ACT.-(Before Mr. Commissioner FANE.)-Mr. Buchanan, Basinghall-street, applied to his Honour to grant a summons under the Small Debts Act, calling upon the defendant to shew cause why he should not have a warrant of commitment issued against him for having failed to pay an instalment of half-a-crown, which sum had been ordered to be paid by Mr. Commissioner Fane. Mr. Commissioner Fane said that it would be a great hardship upon the plaintiff to grant his application. The expenses of such a proceeding (serving the warrant, &c.) would probably amount to a guinea, and then, when the defendant came into court, he might pay the half-crown, and the plaintiff would be at all the expense, as there was no power by this Act of Parliament to allow the costs until after a warrant had been obtained. He considered the recent decision of the Judges of the Court of Common Pleas upon this subject most extraordinary; and it appeared to him (the Commissioner) that the Judges had thought that the creditor ought to be harassed in every possible way. First, there is a personal service of the writ; next, there is a personal service of the Small Debts summons, and so on. Under these circumstances, the Court must refuse to grant the application. Mr. Buchanan said that for the future he should advise his clients not to proceed under this Act, and put up with the costs of the action. The class of persons who were summoned under this Act were only persons who paid under coercion, and most diffi cult to serve.. The application was then refused. RESULT OF THE EXAMINATION. The newspapers report a very large increase of attorneys this Term. The true numbers at the recent examination are as follows:-93 passed, 7 postponed, and 2 still under consideration. We regret to hear that the answers of one of the candidates were palpably copied from another. They were both subsequently called Dublin, June 9. THE POSTPONEMENT OF THE CIRCUITS. The Mail of this evening has the following statement in reference to the course the judges have adopted before finally making up their minds to yield to the force of public opinion, as universally expressed against the injustice of deferring the holding of the Summer Assizes to the month of September or October next. It is, however, pretty clear that there will be no postponement; and this decision might just as well have been announced three days ago as in a week hence; but "there is a form in these things" which, it is to be presumed, their Lordships felt bound to comply with : took place on the 5th inst. at the Society's rooms, A public meeting of the supporters of this Society No. 21, Regent-street, Lord Brougham in the chair, supported by the Duke of Richmond, the Duke of Cleveland, Viscount Ebrington, M.P., Lord Ashbarton, the Earl of Devon, the Earl of Radnor, Mr. Roebuck, M.P., Mr. Hume, M.P., Mr. Ewart, M.P., Mr. Wyse, M.P., Mr. Serjeant D'Oyley, Mr. Bethell, Mr. D. Salomons, Mr. Commissioner Fonblasque, Mr. Commissioner Fane, Mr. Charles Phillips, &c. The Chairman opened the business of the day by expressing the pleasure he felt at presiding at the second anniversary meeting of this Society, especially as the last had been attended with so much scecess, and bad produced so great an effect both on the Profession and public at large, as well as in both houses of Parliament; for in consequence of the exertions of this Society, some important measures had been brought before the Legislature, with a view to the improvement and amendment of the law. Some of those measures had been completed, and others were in progress; and he hardly need repeat what he bad said on a former occasion, that nothing could be more entirely without foundation than the charge brought against the Society that it was rash and beadlong. On the contrary, their whole design was deliberately, cautiously, and by way of trial-and in case trial should fail, by consideration and subsequent trial-to proceed safely and above all things safely-to amend The learned Bench has not yet thought proper to the institutions of the country, for the purpose of allay public anxiety respecting the alleged postpone-preserving them. No doubt the great object of the ment of the Summer circuit. After a manner truly Society was to relieve those who suffered from abuses, Hibernian (or rather, according to the Rhadamantine or defects rather (for he could hardly say they were precedent, "Castigat auditque"), these learned per- matters for blame; into the best administered system sonages first determined, by a majority of eleven to abuses were sure to creep in course time), and that one, to defer the assiz's to a more convenient season; persons who wished to purchase property (and he and, on second thoughts, they resolved to institute singled out those instances because, in the House of an inquiry into the necessity for such a measure. Lords, active operations had been commenced for the Men of less character and learning would have first improvement of the law in this respect by the land inquired, and then resolved. But all in good time. committee, which was presided over by Lord BeatQueries have been issued to the proper quarters for mont) should have their burdens diminished with information respecting every gaol and bridewell in respect to conveyancing. But the expense attending Ireland, to ascertain the number of prisoners in con- the transfer of property was not the only evil of the finement, and the sanitary state of the prison, whe- present system, whilst the difficulty of getting a ther fever be prevalent therein, and the number of good title was the greatest evil of all. It was patients; also, the state of fever in the vicinity, &c. a very great hardship on a man having 1007. and As soon as the returns shall have been made, their who wished to buy a small property, that he should lordships are to deliberate for the third time, and have to pay nearly the same sum for the transfer come to a final decision. Meanwhile, it is antici- of that property as the man would have to pay pated that the assizes will go on as usual throughout who purchased an estate worth 150,000l. But the the country, with the exception of a few places in the worst of the system was, that the longer, the more south and west, where the epidemic is known to be prolix and complex the proceedings were, the greater very prevalent, as in Cork and Sligo. We have not was the chance of plunder, of which he could not heard that the assistant-barristers have made any give a better instance than a case in which he had stand for themselves, or have had any consideration been engaged, where, through the prolixity of the extended to them by those in authority. Yet a parity proceedings, the heir-at-law was shut out from all of reason would include them in the predicament of inheritance. That case had been tried in two courts the judges. of law; then in Chancery: it was then sent by Lord Chancellor Lyndhurst, one of his (Lord Brougham's) predecessors, to the Court of Queen's Bench, and from that it passed into the Court of Common Pleas. These two Courts gave opposite decisions. It REMOVAL AMENDMENT BILL.-By this Bill, afterwards came before the House of Lords, and they which has been brought into the House of Com-confirmed the decision of the Court of Common Pleas mons by Sir George Grey and the Lord Advocate, The title-deed said that the remainder was to go to it is proposed to enact, that it shall be lawful for the fifth, sixth, or seventh son; it afterwards stated, any guardian, relieving officer, or overseer of any "in the order of seniority." That, in the opinion of parish or union in England, to take and convey before the Court of Common Pleas, let in the first son; but two justices of the peace, without summons or war- many people thought it a wrong decision, and among rant, every poor person who he may have reason to others the Court of Queen's Bench. This was a rebelieve is liable to be removed from England under the markable instance of the great evil of prolix derds. 8 & 9 Vict. c. 117; and the justices before whom any Every sheet added to a conveyance multiplied the such person shall be so brought, shall hear and chances of such peraicious errors in a short deed as examine and proceed in the same manner in all re-well as a long one; but the long deeds are sanctioned spects as if such person had been brought before by no legislative authority, while they were liable to them under and in the manner directed by that Act. great dispute. In one case, a country schoolmaster, That it shall be lawful for any inspector of the poor, who had acted as conveyancer to the district in which or any other officer appointed by the parochial board he resided, put in some words of his own into a conof any parish or combination in Scotland, to take and veyance which he had drawn. These words subseconvey before the sheriff or any two justices of the quently occasioned much delay and expense, owing to peace of the county in which the parish or combina- the discussions which they gave rise to in the courts tion for which such inspector or officer acts, or any of law. The principle adopted by the committee of portion thereof, is situated, without previous com- which his noble friend (Lord Radnor) was an active plaint or warrant in that behalf, every poor person member as well as himself, and of which Lord Beauwho he may have reason to believe is liable to be re- mont was chairman, was this: a certain short formoved from Scotland, under the 8 & 9 Vict. c. 83, mula was agreed to, and those who chose to adopt 9. 77; and the sheriff or justices before whom any that were guaranteed by an Act of Parliament that such person shall be so brought shall make such that formula should do so and so that it should have examination, and proceed in the same manner in all all the effect of those long deeds. That had been respects, as if such person had been brought before adopted in Ireland by his (the chairman's) notie him or them under and in the manner directed by that friend (Lord Devon) near him. Last year it was Bills in Progress. The Earl of DEVON observed that it was of the highest importance that a branch, such as his noble and learned friend in the chair had alluded to, should be established; for he was persuaded it would prevent much of that crude legislation which they had all often witnessed with regret. Notwithstanding this society had already been of great advantage to the country, its objects and aims had been greatly misconceived and misrepresented. It had been accused of encouraging hasty legislation, when, in fact, its objects and effect had a decidedly opposite tendency, and, indeed, were the means of preventing hasty legislation. For these reasons he had much pleasure in moving a resolution approving of and appreciating the advantages likely to arise out of an unprejudiced and continued investigation of the defects in the laws and legal institutions of the country, and of the best means of remedying them. Lord RADNOR having briefly expressed his hearty concurrence in this resolution, The CHAIRMAN put it to the meeting, and it was carried unanimously. Mr. HAWES (brother of the member for Lambeth) seconded the resolution, and commented upon the law of debtor and creditor, stating, as a proof of its objectionable character, that of the insolvents in London who went through the Bankruptcy Court, ten out of every eleven the public never heard of. It had been ascertained that the yearly amount of insolvency in England was no less than 50,000,000l. ; and the reason why so comparatively few insolvents were proceeded against in the Bankruptcy Court, was the troublesome and expensive nature of the proceedings. The CHAIRMAN then put the motion to the meeting, and it was passed nem. con. The Duke of RICHMOND moved the next resolution, and expressed his satisfaction in being a member of the Society, and his desire to assist in promoting its success. He agreed in all that had been said with respect to the objectionable state of the law, and was anxious to shew his approval of those who directed their attention towards that point; therefore he had great pleasure in moving, as the opinion of the meeting, "That the labours of the committee appointed by the House of Lords to inquire into the criminal law, had been of great public benefit, more especially in directing attention to the question whether the principal object of the law should not be the reformation of the criminal, and not be confined to the deterring from crime." Mr. Serjeant D'OYLEY having seconded this resolution, it was put from the chair, and carried unanimously. proposed that the same principle should be extended which it was taken, it might be a very bad one in therious in their operations; and he had become a memto farm leases, mortgages, wills, settlements, &c., but Act in which he embodies it. The clause, for ex-ber of this Society because he thought it well calcu the subject was postponed for further consideration, ample, might say, "so and so, as aforesaid." How lated to remedy the great evil. After dwelling at because great improvements had been suggested by could this clause be construed? It could not be done some length on the state of the law of debtor and his noble friend Lord Cottenham. He (the chair-"as aforesaid," when there was nothing as aforesaid creditor, his lordship concluded by moving the followman) would mention another circumstance that oc- in the Act. But this clause was taken out of an Act ing resolution :-viz. "The representation of the curred last year, he meant the Act that passed for in which there was something aforesaid-they took bankers, merchants, and traders of the city of Lonthe extension of terms. Some did not understand out the consequent without the antecedent. If there don, on the operation of the recent laws respecting the extraordinary absurdity and iniquity of the old were any rules more clear than others, they were imprisonment for debt, are deserving of respectful law in respect to terms. An outstanding term of 900 those that in framing an Act of Parliament you must attention; and without pronouncing any opinion years was mentioned to entitle the parties to raise always use the same word in the same sense, and thereupon, it is manifest that as the experience of the money by the lease. The money was raised, and the when you use a different word, take care that it is not working of these important alterations in our system whole thing considered completely at an end, and in the same sense. The third rule was to use the may have shewn defects, and suggested remedies, the term ought to be considered at an end also. language so as to give to every word some force and there can be no reason against taking the whole mat At present this was the case, but formerly it was effect; fourthly, not to use more words than were ter into further consideration, with the benefit of that not so. What was the consequence? The term was necessary to express the meaning; and in the fifth experience." unsatisfied, and its ghost of the term continued to place, not to use fewer words than were necessary. haunt one of the parties. One person lent his money, These rules were obvious to common sense, but and then another person lent, and then a third per- almost every one of them had been neglected and son, who, in point of law and equity and justice, broken through in almost every Act of Parliament. ought to come in after the other two, was enabled The importance of the great objects of the Society to come in by the law, and, to use a picturesque and were felt more and more every day. Nil actum est si expressive phrase, to squeeze out" the person who quid superesset agendum must be their motto; and by had the middle place, and get possession of the estate. endeavouring to relieve the owners of property and Some lawyers called this "squeezing out," others the purchasers of property by the amendment of the "pressing out." By the bill drawn by that Society, civil law, they would entitle themselves to the respect and examined and approved of by Lord Cottenham, and confidence of the public. On resuming his seat, Lord Campbell, and himself, and which was passed the noble chairman was greeted with loud cheers; into a law, those gross frauds and also those grievous after which expenses had been put an end to. If a person died intestate, there might be a difficulty in satisfying the law, which required that you must find the last person that had the estate. Nobody might know where such a person was even buried. Advertisements might be frequently seen offering a reward for the person alive, or, if dead, to know where he was buried. The person must be found out, and if he had no representative an administration must be taken out. A delay of ten or twelve months might possibly occur before all this could be done, and, after all, possibly an Act of Parliament might be required, which, in the case of a small estate, was out of the question. In one case that he had heard of, it cost 550l. to come into the possession of an estate worth 1,500l. It cost the Duke of Cambridge last year 5,000l. in the conveyancing of an estate of 7,000l. or 8,000l. a year. The same expenses would be incurred on an estate not worth one-tenth of that sum; for those expenses were not ad valorem. One important feature in that Society was, that it was always ready to re-consider anything it had done, and to retrace its steps wherever it had erred. He regarded the abolition of the Lord EBRINGTON then moved the second resoluimprisonment for debt as an important improvement of tion, to the effect that the expense and delay insepathe law; but in its working it was found to operate as rable from the present method of inquiring into the a great hardship on the creditor. The former law title to land, and the present forms of conveyance, operated more grievously on the debtor. The mer-impeded the transfer of landed property, greatly dechants, bankers, and citizens of London had peti-preciating its value, and operating as a social evil. tioned against the law. Although he should carefully The meeting had, therefore, observed with pleasure consider their objections to it, still his opinion was in its favour. But, after all, the law was only an experiment. No one could say he had so much circumspection as to know all that might occur after the Legislature had passed an Act. Cases frequently occurred the very day after an Act was passed which developed someting connected with its working that had never been thought of before. If the Legislature had been wrong in passing that Act, it was their duty to retrace their steps. If, in giving this great relief to the debtor, any of those guards had been omitted that might have been employed for the safety of the creditor, this was the time, when experience had pointed out the error, to adopt a remedy. His own opinion remained still the same upon this question. He differed entirely from the petitioners, but he was willing to re-consider the law in order to profit by experience. Lord Lyndhurst, one of the members of the Society, had been very much opposed to the abolition of imprisonment for debt, but he was obliged to give way to the overwhelming mass of evidence of the evils of that system. The House of Lords were informed by petition that twenty-five people were confined in a place ten feet square, without any bed, not even straw or water. The House was alarmed at this statement, and the Legislature, in consequence, passed an Act abolishing all arrests, either on execation or mesne process under 201. This Society had had nothing to do with that measure. If that Act had come through the Society it would have been carefully examined and deliberated upon by a com- Mr. HUME moved the next resolution, and exmittee; it would have been thoroughly sifted before pressed his strong disapprobation at the present mode it came before the Legislature, and guards would of legislation; at the same time he entirely approved have been inserted in it for the protection of all of the objects of this Society. The hon. member parties. The last point to which he would direct concluded a lengthy speech by proposing a resolution, attention was the great improvement which would be the purport of which was, that the meeting had seen effected in the legislation of the country by having with pleasure the recent attempts to improve the select boards of professional men appointed to pre-mode of conducting the private and local business of pare public Acts of Parliament. Unless one and the Parliament; and it trusted those efforts would be same board prepared those Acts, he defied the wit of man (even if forty instead of four judges sat in each court upon them, and perhaps forty would only make the matter worse) to understand them. Acts of Parliament were now drawn mechanically by steamthey were made with the scissors. A man cuts out a clause from one Act, and embodies it in another, and although it might be a good clause in the Act from that her Majesty's government had appointed com- Mr. BETHELL, in moving the next resolution, signified his approval of the Society's objects, and the good results he anticipated would be produced by its operations. The resolution was as follows-"That this meeting declares its entire adoption of the following sentiments which Lord Lyndhurst, when Lord Chancellor, is reported to have addressed to the House of Lords- As far as the great charities are concerned, the Court of Chancery is a tribunal without exception, in some respects; but even in regard to these it is impossible not to feel that enormous expenses are incurred; in the case of charities of moderate amount ruinous expenses are incurred; but with respect to the smaller charities, the doors of the court are absolutely closed against them;' and this meeting expresses its earnest hope that this subject will receive the early attention of the Legislature." Mr. Commissioner FANE, in seconding this resolution, regretted the absence of his learned friend Sir Fitzroy Kelly, who had been unavoidably prevented from attending the meeting. Having been withdrawn from the Court of Chancery for so many years, he was afraid he should be unequal to the task he had undertaken. In the absence of better eloquence, he would rely on the eloquence of facts which had lately come to his knowledge, and he was sure they would carry more weight with them than anything he could say. In one instance which had come under his notice, a London banker had shewn him a case in which the bill was filed in 1828, and now, nineteen years having glided by, he was no nearer to justice; yet the banker was rich enough to pay for justice. Another London banker, equally rich, had stated to him a case where the bill was filed in 1807, and he, too, after forty years, was still waiting for justice; but this was an Irish court. To what was this attributable? To the system of tossing the suitor from the judge to the master, and the master to the judge, again and again, a system of appeal absolutely endless. He then read from a letter addressed to Lord Cottenham, by a most respectible solicitor-" In a suit which I had the misfortune to be obliged to institute in the Court of Chancery, about fourteen years ago, and just ended, assets were realised to the amount of more than 3,7001. and the whole, except about 3837. had been spent in litigation." He then read from a pamphlet lately addressed to Lord Lyndhurst by a London solicitor"In our own practice we were concerned for a specialty creditor in a suit, where 2,500l. were got in, and after payment of costs, the sum of 351. only was left for division among the specialty creditors.' He would trouble the meeting with only one more quotation, but it was from a joint letter signed by Lord ASHBURTON, in moving the fourth resolu- two solicitors, both of high standing, one of London, tion, observed that the Acts of Parliament were got the other of Newcastle, and addressed to a member up in a confused and unintelligible manner, altoge- of Parliament-"We have made extensive enquiries, ther discreditable to the Legislature, as well as inju./ and cannot learn that any litigated case of partner persevered in until a complete remedy for the evils so Mr. EWART warmly supported the resolution, Osborne appeared for the petitioners. The VICE-CHANCELLOR.-It is quite clear the Railway Company must bear these costs. As they insisted on purchasing the land, it was but fair they should pay all the expenses incidental to the proceeding; I shall therefore make the order according to the prayer of the petition. Monday, May 31. STEDMAN v. POOLE. Will-Construction - Clause against anticipationFeme covert-Lease-Sub-lessee-Notice. When a bequest of property to a married woman to her separate use for life directs that the property shall "not be sold or mortgaged," these words amount to a clause against anticipation; and where the married woman joined her husband in granting a lease for valuable consideration, for a term dependant upon her life, the Court set it aside on the application of the wife. A married woman joining her husband in a lease is notice of the title of the wife to sub-lessees, and they are bound by any defect in their lessor's title in consequence of her want of power to make the demise. This was a suit by the grantor of a lease by her next friend to have the lease declared void, on the ground that the demise was inconsistent with the interest the grantor had in the property. Thomas Scrooby, by his will, bequeathed his leasehold estates, situated in the parish of Paddington, to his daughter, Mrs. Steedman, one of the plaintiffs, "for her whole and sole use during the term of her natural life, and free from the control of her present or any future husband, and not to be sold or mortgaged, and after her decease to her heir or heirs; and provided her child or children should die before her, then she, at her decease, may leave them to whom she pleases for the remainder of the term." Testator's daughter was married to Thomas Steedman, at the date of the will, and death of the testator. The plaintiff, with her husband and defendant, had various money transactions together, up to the year 1840, when the plaintiff and her husband, being indebted to the defendant, he pressed for payment of what was due; whereupon the plaintiff joined her husband, and executed the lease in question to the defendant, whereby, in consideration of 3201. Steedman and his wife demised certain houses situated at Kemp-place, Paddington, to the defendant for a term of twenty-six years, should Mrs. Steedman so long live, at an annual rent of 107.: these houses formed part of the property bequeathed to Mrs. Steedman under the will of her father. Mrs. Steedman, by her next friend, now sought to have that lease declared void. Romilly and Southgate, for the plaintiffs, contended that the effect of the words used by the testator amounted to a clause against anticipation; and should the Court be of that opinion, there was no alternative but to declare the alienation of this property void. Wood, Fooks, and Tremenhere, for the defendants, being the lessee and his under-lessees, contended that the Court could not make a decree as prayed by this bill, for the plaintiffs were attempting a gross fraud upon the defendant (who took the lease) and his under-lessees. There was a valuable consideration here given: Mrs. Steadman was entitled to her separate use, and joined in the lease; and even though the Court should be inclined to support the plaintiff as against the defendant Poole, the lessee, there could be no ground for injuring the interests of the sub-lessees, who were innocent parties-who had no notice of the interest Mrs. Steadman had in the property; and finding her name joined with her husband was a presumption that she was justified in joining in the grant of the lease, and ought to prevent her work ing an injury against them by avoiding their lessor's title, which appeared to have been created by her own act. The VICE-CHANCELLOR (after reading the clause above set forth from the will).-It is clear the property is given to Mrs. Steadman, subject to two qualifications: first, that it should be free from her husband's control; and secondly, that she should not have the power of alienating it. It is therefore clear she was given no, power to make this lease. As to the argument urged on behalf of the defendants, the under-lessees, I consider the rule of law to be, that where a person does not know that A. B. has any interest in a property, he is not bound to inquire whether he has or not; but if he does know that A. B. has some interest, he is bound to inquire what that interest is. In the present case, the circumstance that the wife had joined her husband in granting the lease to the defendant, was evidence that she had some interest in the property, and that was sufficient to lead the under-lessees to inquiry; they must therefore bear the consequences of their own neglect, and I shall make the decree in favour of the plaintiff. Common Law Courts. COURT OF QUEEN'S BENCH. LANE v. RIDLEY.(a) In Easter Term Bramwell moved for a rule nisi to re- ERLE, J.-The meaning of the ordinary order made is, that unless the notice is allowed to stand, judgment is to be signed. It gives the defendant the option. Cur, adv. vult. Willes, contrà, referred to Co. Litt. 211, a. Lord DENMAN, C. J.-The defendant seeks to relieve himself from payment of 1,300l. which he has received, by saying that his own deed is void; we will help him to be honest. Whatever the intention was when instructions were given for the deed, it appears that the parties, when they executed it, chose only to fix the year for payment, and to leave the day uncertain. There is a passage in Co. Litt. which shews what must be done in such case. Reasonable notice must be given of a day within the particular year; and if the defendant does not pay then, the breach will be complete. The duty to pay, therefore, is suficiently disclosed by the terms of this covenant; and there must be judgment for the plaintiff. Judgment for the plaintiff. DOE dem. HARRIS and OTHERS v. TAYLOR, A testator devised lands, &c. “to my son A. T. for Held, that the first son of A. T. took an estate tail. This was an action of ejectment to recover two pieces of freehold land in the parish of Mickleton, in the county of Gloucester; in which a verdict had been found for the lessors of the plaintiff, subject to the opinion of this Court upon a special case. The question turned upon the construction of the will of the defendant's grandfather, of which the material parts were as follows: "I give, devise, and bequeath all that my two closes or enclosed grounds lying and being in the parish of Mickleton, in the county of Gloucester; the upper close, commonly called or known by the name of Phipp's Hole;' the lower close, commonly On a subsequent day judgment was delivered by called or known by the name of Hunk's Walk,' Lord DENMAN, C. J.-Mr. Bramwell moved with my house I now live and dwell in, and all apfor a rule to rescind an order of Mr. Justice Erle, purtenances belonging to my said closes and house, for setting aside a demurrer to a replication for to my son, Albright Taylor, for and during the term duplicity, as frivolous. But according to Pursford of his natural life, so that he pay all my just debts v. Peek, 9 M. & W. 200, the plea was objection- and funeral expenses, and legacies hereinafter menable for duplicity, and the defendant has no right tioned, with and out of the real and personal estate, to demur to a replication for duplicity, which is which I do hereby charge with the payment thereof; occasioned by his own plea. (Reynolds v. Black- and from and after the decease of my son, Albright burn, 7 A. & E. 162; Pascoe v. Vyvyan, 1 D. Taylor, then to the first son of my said son, Albright N. S. 949.) And in refusing the rule which has Taylor, lawfully issuing; and for default of such first been moved for setting it aside, we feel it to be our issue, then to the use and behoof of the second, third, duty to declare our opinion that applications for such fourth, fifth, and all and every other son and sons, the rules ought to be discontinued. The Court must ob- heirs of his or their bodies, lawfully issuing, the elder viously possess a discretionary power to set aside to be always preferred, and to take before the younger frivolous demurrers, and preserve its own re- of such sons and the heirs of his body; and for decords from abuse, and the public time from being fault of such issue, then to the use and behoof of all wasted, and prevent the useless costs, to the impo- and every daughter of the body of my son, Albright verishment and ruin of the client and the ultimate Taylor, and the heirs of the body of such daughter advantage of those who ought to protect them from and daughters; and for default of such issue, then I the evil, and the delay, and the defeat, and the com- give, devise, and bequeath it to my son John Taylor, plete perversion of justice. It is manifest that this during the term of his natural life, and after his deevil would be aggravated if the exercise of a judge's cease to his first son, lawfully issuing; and for discretion is frequently to be made the subject of ap- default of such issue, then to the use and behoof peal to the Court. When the Court clearly sees that of the second, third, fourth, fifth, and all and the attempt is to secure a triumph to falsehood by every other son and sons, the heirs of his or their means of a bad plea, the possibility of doubt being bodies lawfully issuing, the elder to be always raised by arguments affords no reason for interfering preferred and take before the younger of such sous with the judge's discretion. It is sometimes said on and the heirs of his body; and for default of such this subject, that the suitor ought not to be deprived of issue, then to the use and behoof of all and every his writ of error by a summary proceeding, and if, daughter of the body of my son John Taylor and the indeed, he was barred from setting up a true defence heirs of the body of such daughter and daughters; by some supposed rule of pleading, that would be an and for default of such issue, then to remain to the oppression and injustice; but to prevent the sup-right male heir for ever. Item.—I give and bequeath pression of truth and the delay of justice by a writ of to my above son, John Taylor, the house I purchased error, is one of the greatest benefits that accrue from of Walwyn Graves, esq. situate in the parish of Micklethis jurisdiction, and it is also beneficial in a pecu- ton aforesaid, with all appurtenances thereunto be niary point of view to both parties. In this case we longing, for and during the term of his natural life. think the application to rescind the order ought to Item.-I give and bequeath to my said son, John be refused. Rule refused. Taylor, the interest of 400l.; that is to say, 161. a year, to be paid quarterly during his natural life, and after his decease to the heirs of his body lawfully issuing, to be paid by my son Albright Taylor and his heirs at the end of twelve calendar months after my decease; and in case my son John Taylor die without lawful issue, I give and bequeath the abovenamed house and 400l. to my son Albright Taylor and his heirs. Item.-I give and bequeath to my son John Taylor my four-post plod bed, bedstead, and bangings, with the small swing glass in my further room. Item.-I give him half of all the linen I die possessed of. Item.-I give him my oak chest of drawers and my smallest oak chest. Item.-I give him my oak dining-table now standing in my kitchen. Item.-I give him two large table-spoons which are silver, and half-a-dozen silver tea-spoons and silver tea-tongs. Item.-I will and desire my son Albright Taylor to pay to my loving wife Frances Taylor 61. per year in lieu of her dowry; and also the interest of 1007.; that is to say, 41. per year during the term of her natural life, and to be paid at the end of twelve calendar months after my decease; and in case she live with my son Albright Taylor, he to maintain her in lieu of her legacy. Item.-She is to have a being in my house during her life, and the use of the goods. Tuesday, June 1. A covenant to pay money on the day of A.D. 1845, is not void for uncertainty. Prentice, in support of the demurrer. The deed is (a) This was decided last Term, but stood over on account of a mis-statement in the judgment as delivered, which is now corrected. |