III. BOOKS FOR THE VERULAM SOCIETY. The NEW ORDERS in CHANCERY, Edited, with Notes and a copious Index, by GEORGE S. ALLNUTT, No. 27. Warrant of attorney to confess judgment. 2s. Esq. Barrister-at-Law. Price 3s. boards; half-bound in calf, per doz. extra 1s. 6d.; bound in do. 2s. 6d.; interleaved, 1s. extra.

Parliamentary Papers...
MAGISTRATE-Summary.

Review of Magistrates' Cases during Michaelmas
Term.....

Parkhurst Prison

The Bastardy Law.

LAWYER-Summary

Leading Cuses--No. XIX.

Practice of Wills...

Review of Cases decided in the Common Law Courts
during last Term

PROMOTIONS, APPOINTMENTS, &c..
COURT PAPERS

LEGAL INTELLIGENCE

CORRESPONDENCE

Solicitors' and General Insurance Society
Ubiquitous Attorneys

Articled Clerks

Attorneys' Gowns

Satisfied Terms Act

Letter from "Inquirer"

LEADING ARTICLES

253
254
251

Page who had also taken frontages towards the canal, on
lease from the company. The company had put
down stones upon the premises so occupied by
the wharfingers, to mark the boundaries, acord-
255 ing to the defendants' claim, between their land and
256 the plaintiff's; and the bill alleged that the land being
257 in the occupation of tenants under lease, who per-
258 mitted such alleged boundary marks to be set up, he
258 could not interfere. The plaintiff was thus, as he
258 alleged, prevented from trying his right to the land
258 at law. The bill charged that the defendants had in
their possession certain maps and surveys, by which
the boundaries couid be ascertained by commission-
239 ers, and which contain entries shewing the bounda-
259 ries, and in particular maps and surveys, made upon
259 specific occasions, and by defined persons, were charged
201 to be in defendants' possession.

258
258

262

263
263

261 261 261

265 265

265

The defendants, by their answer, admitted the possession of a map and surveys of the strip of land, and 263 that seventeen acres of land had been conveyed for 4081. but they said there was a doubt whether that measurement had included the towing-path and back 263 cuttings, and they could not state otherwise how the 264 mistake in the quantity arose. They stated, that if 264 they had not originally a good title to the whole of the twenty-four acres now in their possession, they had gained a good title by adverse possession since 1824. In 1824 the company applied for an Act of Parliament, and on that occasion the lands in the occupation of the tenants were surveyed, and three copies of the map and survey were made; one being deposited with the clerk of the peace for the county, 268 one delivered to the plaintiff, and the third retained by the defendants. There was a contest before the par268 liamentary committee, when the plaintiff and defen270 dants both exhibited maps on which were certain 270 marks and figures. The company afterwards abandoned their bill, and the plaintiff brought actions of ejectment, which he afterwards also abandoned. 271 The defendants insisted upon the Statute of Limita tions, and said that they were willing to abide by the map of 1824, and they set out in schedules lists of such documents, maps, plans, surveys, &c. as they had in their possession, and they denied that they had in their possession any maps, surveys, &c. except such as were mentioned in the second schedule, by which the commissioners could ascertain the boundaries as charged in the bill; and further alleged that the maps, surveys, &c. in such schedule formed part of the evidence of their own title, and did not form any part of the title of the plaintiff.

270 271

THE MARQUIS OF BUTE v. GLAMORGANSHIRE
CANAL COMPANY.

Confusion of boundaries—Commission-Statute of
Limitation-Production of papers.
On a bill for a Commission to settle confused bound-
aries, the allegations that the defendants had gra-
dually encroached upon the plaintiff's land, and had
let their own land to as many as fifty persons, were
held to form a sufficient ground for entertaining the
suit in equity. The rule is, that a suit in equity can-
not be sustained on a mere confusion of boundaries,
unless there is something arising out of the conduct
of the parties which renders the interference of a
court of equity requisite, or it is necessary to prevent
a multiplicity of suits.
It is no objection to the production of books that they
are in daily use in the defendants' business, the usual
order in such cases being for inspection at the place
of business, at convenient times, and for sealing up
such parts of the books as do not relate to the matters
in issue.
Where documents in the defendants' possession are
sought to be produced as evidence of the plaintiff's
title to a commission to ascertain boundaries, it is not
sufficient to prevent their production to say that they
relate to and evidence the defendants' title, and do
not evidence the plaintiff's title.

Wood and V. M. James, for the plaintiff.
The LORD CHANCELLOR.-The plaintiffs are not
entitled to production unless there is an admission of
title or something equivalent.

732); Newton v. Beresford (1 Younge, 377); Smith
Wood cited Hardman v. Ellames (2 Myl. & Keen,
v. Duke of Beaufort (1 Phillips, 209); Edwards v.
Jones (1 Phillips, 501).

Bethell and Colville, for the defendants, commented
on the frame of the bill, and cited Speer v. Crawter
(2 Merivale, 410); Wake v. Conyers (1 Eden, 331;
2 Cox, 360); Miller v. Warrington (1 Jac. & Walk.
484); Adams v. Fisher (3 Myl. & Cr. 549); Hunger-
ford v. Golding (2 Vernon, 38); Baker v. Mellish (10
Ves. 544). They said there could be no decree at the

hearing.

The LORD CHANCELLOR.—If am satisfied no decree can be made at the hearing, even if the documents do establish the plaintiff's title, I shall not order their production.

Wood, in reply.

JUDGMENT.

spective parties. The defendants, in their answer, deny the encroachment, and the acts attributed to them by the plaintiff, alleging that the parties occupying the frontage were their tenants, but submitting that, under the circumstances, the warehouses and buildings may have been erected partly on their land, and partly on that of the plaintiff's, and that, if there is any such encroachment as that alleged in the bill, they claim a possession, without disturbance, of more than twenty years, and set up the statute.

The plaintiff in his bill alleges that the defendants have in their possession or power certain maps, plans, surveys, and other documents, which, if produced, would prove the plaintiff's title to the land in question. The defendants, by their answer, admit that they have maps, plans, and surveys in their possession, and they set out certain leases, and other documents, but they submit that they form part of their own title, and that, if produced, they would not appear to form any part of the title of the plaintiff. The usual motion for the production of papers was made in the court below. The Vice-Chancellor appears to have refused the motion, but the papers handed up by the parties do not disclose the grounds on which that refusal is founded. It merely appears that the Vice-Chancellor had read the affidavits in the cause, and he did not think a case had been made out by the plaintiff to warrant his granting what was asked. The plaintiff moved in the usual manner to discharge the order. The first question is, whether the plaintiff has made out a case for the appointment of a commission. The main objection on the part of the defendants is, that the dispute between the partics relates to contiguous property, and that the remedy for an encroachment on boundaries is to be sought in a court of law, and not in a court of equity; therefore, that the bill cannot be sustained. As far as I understand it, I conceive the rule in such cases to be this-that a mere allegation of a confusion of boundaries will not support a bill for a commission to ascertain them, unless there is a something arising out of the conduct of the parties, or that it appears the interference of the Court would tend to prevent a multiplicity of suits. (Wake v. Conyers, 1 Eden. 331.) In that case Lord Northington is reported to have said, that "a court of equity will entertain a bill for a commission where there are some equities superinduced by the acts of the parties, such as particular circumstances of fraud, or confusion, where a party has ploughed too near the land of another, or the like." I think that in the present case, the allegations in the plaintiff's bill are sufficient to support the bill, and that the evidence proves the allegations of a confusion of boundaries, and of gradual acts of encroachment, and other acts which would render it necessary to bring a obtain possession. great number of actions to determine the right and

With reference to the case inade for the production of documents, I cannot refuse the order on the ground that no case for it has been made by the bill. If that is really so, then the defendants might have demurred to the bill, but they have chosen to answer and have answered fully; and, having admitted the possession of the documents, they are bound to produce them, unless some special circumstances can be shewn to the contrary. The defendants have stated reasons for refusing to produce those documents; but for the greater part of them, I must say they are no reasons at all, the principal portion of them alleging that they are the private books and daily statements

of the accounts of the defendants in constant use, and therefore cannot be produced for the inspection of the plaintiff without great inconvenience to their busiNov. 8, 1845.-The LORD CHANCELLOR.-The ness. I propose to make in the cause the usual order bill states the sale of a narrow slip of land on the under the circumstances so alleged; namely, that the side of the canal of the extent of seventeen acres plaintiff is to have inspection of the documents at the under the authority of an Act of Parliament in the offices of the defendant, at such convenient times as year 1803, by the then owners, to the representatives may be arranged, and that the books are to be inThe plaintiff in this case, the Marquis of Bute, had of the defendants. The bill alleges that of this land spected with those parts which do not relate to the moved in the Court of the Vice-Chancellor of England the defendants have formed towing-paths, and con- matters at issue, staled up in the customary manner. for the production of certain maps, plans, and surveys, structed works for the more convenient navigation With respect to the plea put forth on the part of the admitted by the answer of the defendants, the Gla- of the canal; and that this towing-path was ori- defendants, that these documents form part of their morganshire Canal Company, to be in their posses-ginally divided from the land of the plaintiff by a deep title, and that, therefore, they cannot be ordered to sion. The Vice-Chancellor having refused the motion ditch or trench, and that the defendant had, by divers produce them, I do not think it is sufficient. The the plaintiff appealed to this Court. modes, filled up that ditch or trench, and encroached documents are not asked for as evidence of the title of The bill was filed by the plaintiff to have the bound- on the boundaries formed at the time of the sale. It the plaintiff, but merely as evidence of his title to a aries between his land and the land of the defend- further states that they have divided the frontage of the commission to ascertain the state of boundaries. I do ants ascertained. In 1797 the ancestors of the Mar- land into a great number of portions, on which are erected not think the case can be well distinguished from that quis had conveyed to the company 17 acres of land, wharfs, stores, and other buildings, from the occu- of the Duke of Beaufort v. Smith, which was heard in consideration of 241. per acre, or 4081l. It was ad- piers of which they have taken acknowledgments, and by the Vice-Chancellor Wigram, and afterwards came mitted that the company was now in possession of from whom they received payments as rents for occu to this court on appeal. It has been further contended 24 acres. The bill charged that there had been a pation; these wharfs, stores, and buildings, being, that the charges in the bill are contradicted by the ditch between the land of the plaintiff and his ances- as the plaintiff alleges, erected on his land. It is answer; that this contradiction ought to form a tors and the slip or slang of land sold to the company, stated that the occupiers of these portions amount to ground for refusing the application, and Adum v. which had been filled up, and that gradual encroachmore than fifty persons, and that, by reason of this Fisher has been cited as an authority. It ought to be ments had been made by the company. One mode of occupation, it has become impossible for the plaintiff recollected, however, that the question there was the encroachment suggested by the bill was, that the canal to sustain proceedings at law for the recovery of the production of the documents to sustain an action at being at a higher level than the surrounding country, land which he claims. The bill further alleges that, law, and that for such a purpose several of the docuthe pressure of the water had caused the banks to instead of the original seventeen acres, purchased ments required seemed to be obviously necessary. In bulge or spread. This was not much insisted on by the under the authority of the Act of Parliament, the Adam v. Fisher, Lord Cottenham said, "that if the plaintiff's counsel in argument. Another cause of en- defendants now lay claim to twenty-four acres, plaintiff asked for any documents not necessary to croachment was this: vessels using the canal were accus- through the means of these gradual encroachments, make out his equity, he was not entitled to see them. tomed to throw out the sand they had carried as baland that they have erected posts and set down pillars Whatever made out his title he might see. The doculast, which ran down the banks, and in time filled up to define the boundary of the land which they now ments asked for were not, however, necessary to make the ditch. There being a great demand for wharfs, claim. The plaintiff, by his bill, asks for a commis-out Adam's title, and the production of them could not the plaintiff bad let land to various tenants for wharfs, sion to ascertain and settle the boundaries of the re- aid the equity which he asserted in his bill." So that

VOL. VI. No. 144.

it is evident he did not ask for something to support
his equity, but merely for something consequent upon
it. That case, therefore, does not affect the question.
Under all these circumstances, I am of opinion that
the order of the Vice-Chancellor must be discharged,
and the documents produced. I dismiss the appeal,
and give a month's time for the production.

VICE-CHANCELLOR OF ENGLAND'S

COURT.

Tuesday, Nov. 4.

MARQUIS OF HERTFORD v. SUISSE.
Practice-29th, Order, 8th May, 1845.
The above Order directs that "if any defendant, not
appearing to be an infant, or a person of weak or
unsound mind, unable of himself to defend the suit,
is, when within the jurisdiction of the Court, duly
served with a subpoena to appear to and answer a
bill, and refuses or neglects to appear thereto within
eight days after such service, the plaintiff may, after
the expiration of such eight days, and within three
weeks from the time of such service, apply to the
Record and Writ Clerk to enter an appearance for
such defendant; and no appearance having been en-
tered, the Record and Writ Clerk is to enter such
appearance accordingly, upon being satisfied by affi-
darit that the subpæna was duly served upon such
defendant personally, or at his dwelling-house or
usual place of abode; and after the expiration of
such three weeks, or after the time allowed to such
defendant for appearing has expired, in any case in
which the Record and Writ Clerk is not hereby re-
quired to enter such appearance, the plaintiff may
apply to the Court for leave to enter such appearance
for such defendant; and the Court being satisfied
that the subpoena was duly served, and that no ap.
pearance has been entered for such defendant, may,
if he so thinks fit, order the same accordingly.
The defendant having appeared to the original bill, put
in his answer thereto. The plaintiff then amended
his bill, and, as the defendant was out of the juris-
diction, served a subpoena to appear and answer upon
the defendant's solicitor :-Held that under the above
order the plaintiff could not enter an appearance for.
the defendant.

The defendant in this case had put in his answer to
the original bill, he having appeared thereto by his
solicitor. Upon the answer coming in, the plaintiff
amended his bill and served the defendant's solicitor
(himself having gone out of the country) with a sub-
poena, to appear to and answer the amended bill. An
affidavit was made that no appearance had been en-
tered for him.

Schomberg, on the part of the plaintiff, moved under the 29th Order, to be at liberty to enter an appearance for the defendant, upon the ground that although not in letter, yet in spirit the case came under the provision of that Order.

ROLLS COURT.

Nov. 24 and Dec. 4.
ROUTH v. HUTCHINSON.
Will-Construction-Accumulations.
A testator gave his real estate to trustees on trust, to
demise, &c. till his eldest son should attain 21, and
then to convey to him; but, if he should not attain
21, on trust to sell; and the rents and purchase-
money were directed to be part of the residuary per-
sonal estate, and to be subject to the trusts thereof:
the testator then directed the trustees to invest all
his residuary personal estate, and, after paying
thereout an annuity to his wife, to apply a com-
petent part for the maintenance of his five children
during their minorities, and to accumulate the surplus
for the benefit of the residuary legatees: and he
directed the accumulations to form part of the re-
sidue; and he directed the trustees, subject as afore-
said, to pay to all his said children the residue when
and as they attained 25 in certain proportions.
There was a provision that the respective shares
should vest at 21, and if any of them should die under
21 the share of that one to fall into the residue.
And there was a discretionary power to the trustees
to pay the share before 25; and between 21 and 25
they were directed to pay the income on what should
appear to be the share of each at 21, and if any ad-
vances should be made to sons for a superior education,
or for business, it was to be deducted before the final
division took place :-Held, that the eldest child (a
daughter), on coming of age, was entitled to her share
of the personal estate and the accumulations up to
that time; and that the rents, up to the eldest son's
attaining 21, were part of the personal estate to
which she was entitled as capital and not as income;
but that she was not entitled to any of the after-
accumulations on the other five shares. In like
manner the second was entitled to a share of the
personal estate and accumulations up to her age of 21,
and so on.

Kindersley and Calvert, for Mrs. Hutchinson, contended that she had a right to a share of the accumulations, because they were to form part of the residue, and she was one of the residuary legatees, all of whom were to take; and though she was entitled to her share at twenty-five, and the interest thereof at twenty-one, yet it was only that which should appear to be her share then. It was clear that she was intended to take after accumulations, for the rents continued for eight years after she came of age, up to Oswald's attaining twenty-one, to fall into the residue of which she was to have a share by the express words of the will.

Turner and Faber, for Catherine Elizabeth, took the same line of argument.

Tinney, Daniell, Roupell, and H. Clarke, for the other children.

The MASTER of the ROLLS.-I have nothing to do with what is just or right for the testator to have directed; he might have had reasons for what he has done, which he has not thought fit to communicate. If I can find on this will what he meant should be done, I must give effect to it, unless it be contrary to law. The testator at his death, and the date of his will, had two natural and three legitimate children, the eldest being about fourteen, aad the youngest three or four years of age. He directed his real estate, and the produce thereof, to be taken as part of his personal estate during the minority of his son Oswald, to whom he gave it on his attaining 21; but if he did not attain 21, he ordered it to be sold. In respect of that disposition, the question of the appropriation of the accumulations is not raised at all; for each payment of rents was just so much of personal estate considered as capital, and not as income the produce of capital. I do not think that assists the construction of the other portion of the will. The testator directed his personal estate to be invested, and a competent part of the income to be applied for the maintenance of the children during their respective minorities. It is said, that has a special relation to the period of Cuthbert Routh, in 1819, by his will, devised to minority of the children. Then comes a provision three trustees in fee all his real estate on trust, to that the surplus, after maintenance, should be accu demise the same until his eldest son, Oswald, should mulated for the residuary legatees, and should form attain twenty-one, and then to convey the whole to part of the residue. It is clear that the framer of him; but if he should not live to attain twenty-one, the instrument, in penning that portion of it, had rethen on trust to sell and apply the rents thereof, and gard to the aggregate amount, or that which was colalso the purchase-money, if sold, as part of his lected and received by the executors and trustees, that residuary personal estate, and subject to the trusts that should be for the benefit of all, and that there thereof. The testator then gave an annuity of 50l. to should be maintenance thereout for all, and that the his wife, and also such other sum, not exceeding 501. benefit of the accumulations should be for all, till as his trustees should think fit, provided she did not some child should be entitled to have his share. Of interfere with the guardianship of the children. All necessity, the share of that child was to be ascer the residue of his personal estate he bequeathed to the tained at twenty-one, for he is then entitled to the trustees to invest, and, after payment of the annuities income; and, besides, the testator has directed that to his wife, to apply a competent part thereof for the each child shall have his share transferred at twentymaintenance of his five children-Emma, Catherine five, which is an imperative direction. The share was Elizabeth, Oswald, Cuthbert, and George-during to vest at twenty-one, and to be paid at twenty-five, their respective minorities, and to accumulate the with a discretionary power of paying between those surplus for the benefit of the residuary legatees; the ages. Therefore, of necessity, it must have been accumulations to form part of the residue, and subject ascertained at twenty-one. Now the eldest having as aforesaid on trust to pay to the children all the attained twenty-one, it was necessary to ascertain her said residue when and as they attained twenty-five, one-sixth share. What of? Why of the capital and in the proportions of one-sixth to each of the of the accumulations up to that time; also any outdaughters, and the remaining four-sixths to the three standing personal estate to be received, and certainly sons equally. There was then a proviso that the re- the rents up to Oswald's attaining twenty-one. That spective shares should vest at twenty-one, and if any was what appeared to be her share; but was she to should die under that age the share of that one should have any thing in the other five-sixths? The contenfall into the residue; with a discretionary power to tionis, that having gotten her share, and taken it out of the trustees to transfer the share of each after twenty-the aggregate fund, she is now entitled to have a share A father and his six infant children are residing to- one and before twenty-five. The trustees were of the subsequent accumulations on the five-sixths. gether out of the jurisdiction. Under these circum-directed also to pay to each the income from twenty- That she cannot have. What the trustees did was stances, it was held that seven subpænas and seven one to twenty-five, which should arise out of what this; when they appropriated Emma's share, they set copies of the bill ought to be served. appeared to be the share of each at twenty-one; and apart the other shares also to a separate account; but The above order directs that "where a defendant if advances should be made for giving any of the sons suppose they had not done so, but had severed Emma's in any suit is out of the jurisdiction of the Court, the a superior education, or setting them up in business, only, then when Catherine attained twenty-one they Court, upon application, supported by such evidence they were to deduct them from the share of each before would have to separate her share of the principal and as shall satisfy the Court in what place or county the final dividend took place. The testator died a few accumulations up to that time. I don't see any ambisuch defendant is or may probably be found, may days after making his will, leaving his wife and the guity, if it is kept in mind that the share is to be order that the subpoena to appear to, or to appear to said five children him surviving, the eldest being ascertained at twenty-one, and paid at twenty-five ; and answer the bill, may be served on such defendant fourteen years of age, and the youngest between but how, when you are directed to take from the in such place or county, or within such limits as the three and four; and the trustees entered upon the aggregate fund an aliquot part from time to time, you Court thinks fit to direct. At the time when such execution of the trusts. In September, 1826, Emma are to presume that the child so taking that part is subpœna shall be served, the plaintiff is also to cause attained twenty-one, and the trustees then divided to participate in the other shares, I do not undersuch defendant to be served with a copy of the bill the fund, both capital and accumulations up to that stand. Take the whole of the will together, and it is and a copy of the order, giving the plaintiff leave to time, in the proportions directed, and carried the easy. When Emma attained twenty-one, she was serve the subpoena." share of each child to a separate account, and also entitled to have her share ascertained; in like manner, the subsequent accumulations to a separate account. when Catherine attained twenty-one, she was entitled, The dividends were then paid to Emma on her share, and so on. I think that, except as to the past, which and ultimately, on her marriage with Mr. Hutchinson, directs accumulation for the residuary legatees (which the capital itself was transferred. When Catherine must be construed residuary legatees not having recame of age, she was also paid the dividends there- ceived their shares), there is no difficulty. First, after accruing on her share, and on her marriage the take all the personal estate, including all the rents capital itself was transferred, and so of all the rest. directed to fall into the residue and accumulations till Oswald attained twenty-one in June, 1832, and the Emma attained twenty-one, and divide it into onelands were conveyed to him, and the rents then ceased sixth parts, and give Emma one, and so of the rest, to fall into the residue. When George, the youngest, as each attained twenty-one. All parties to have attained twenty-one in January 1837, the accumu- their costs. The VICE CHANCELLOR made the order, appoint-lations of the surplus, after the allowance for maining two weeks for the parties to appear in, and six weeks after appearance to answer, but declined making the order of service on the father for the infants.

His Honour, the VICE-CHANCELLOR, thought
differently, and was of opinion that the plaintiff must
commence de novo, there being no provision for the
case in the 29th Order, and therefore refused the
motion.

Thursday, Nov. 13.
JONES v. Geddes.
Practice under 33rd order, 8th May, 1845-Service of
subpana and copy of bill upon the defendants out of
the jurisdiction.

Under the order a motion was made (supported by affidavits of the residence of the parties) for leave to serve a subpoena and copy of the bill upon the defendant, Arthur Geddes, at Ostend or any where in Belgium, and also to serve subpoenas and copies of the bill upon Archibald Leslie and his wife, and six children, who were infants, living at Portobello, in Scotland, or anywhere in Scotland.

SPAPER

Shapter, for the motion, asked that service of a copy of the bill on the father of the infants might be good service on the infants.

tenance, arising from the shares of the younger
children, amounted to upwards of 3,000l. and Emma
having set up a claim to a share of that sum as one
of the residuary legatees, the present suit was insti-
tuted by the trustees to ascertain the rights of the
parties.

Cooper and Bichner, for the trustees.

Nov. 8, Dec. 5, 9, and 16. Re EVANS. Taxation of costs after payment-Rights of a third party-Solicitor being a trustee-Charges as such. If the bill of costs of a solicitor, who is also a trustee. for doing certain acts which attach to the trust, and there is no proof of pressure being used at the time

LA

PENS

of payment, nor any observation made for some time | Master in rotation, who was Sir W. Horne. By the
after, and no item impugned, except the general
denial of the right to payment altogether, a third
party whose interest is affected by the payment, can
have no taxation of the bill, nor any relief as against |
the solicitor.

practice of the Court this ought to be returned to the
clerk of records and writs, but it was not. The
parties attended on the warrant taken out on that
and several occasions after, and Sir W. Horne was
the Master before whom they attended on those occa-
sions. Different proceedings were taken, down to
the 20th of March, and on the 14th of April the de-
fendant put in his answer, to which exceptions were
taken. I know nothing of these; but the question
is, whether they were properly referred. Within the
time the plaintiff obtained a reference in the form
frequently but not regularly adopted. He ought to
have told the secretary that the Master to whom the
former references were made was Sir Wm. Horne;
he did not; he took the order to the public officer;
and when there he ought to have said, "Here is a re-
ference to the Master in rotation, but there was a
reference before to Sir Wm. Horne in the same cause,"
and it would have been set right; or he might have
taken it back to the clerk of records and writs, and
he would have corrected it. Either way would have
done, but was not adopted. He might have exa-
mined the book also, but did not. He got it marked
with the name of Master Brougham, the Master in
rotation, the order itself being obtained on the 20th
March, in time. The defendant objected that Master
Brougham had no jurisdiction; and the plaintiff then
gets Sir Win. Horne's name inserted in the public
office, but is met with a like objection. It is a most
vexatious objection. It stood over for affidavits to
shew there was no improper delay; and now it is
here, and there is no evidence of any thing but an
omission on the part of the plaintiff. I regret that
the defendant can have no costs. The reference must

John Piper Burnard, the petitioner, was beneficially interested in certain property, subject to claims attaching thereon. This property having been sold by the assignees of one Bromley, the title to it could not be completed without the assignment of two outstanding terms which were vested in Mr. Hugh Evans as trustee. A draft deed of assignment was accordingly sent to him for his perusal, and he being a solicitor acted on his own behalf, and after returning the draft, he on the 3rd of July last delivered his bill of costs to Messrs. Pickering and Co. the solicitors of the vendors, saying, as the petitioner alleged, he would not execute till his bill was paid. In his affidavit, however, he swore that he did not refuse to assign, and that there was no pressure, and that the bill was paid by the Messrs. Pickering on the 5th of July, without any observation made from its delivery to its payment. Mr. E. P. Geary the petitioner's solicitor, however, having seen the bill, said the charges were extravagant, and that Mr. Evans as a trustee was not entitled to more than actual disbursements, and accordingly he himself taxed the bill amounting to 187. 178. 4d. at 51. 7s. and sent him word that if he did not accept that he must submit to have it taxed in the usual way. It was said that Mr. Geary had told Messrs. Pickering not to pay it, or if Mr. Evans would not assign unless it was paid, then to pay under protest and have it taxed. Mr. Evans denied there was any protest. This petition was then presented for an order to tax, on the refusal of Mr. | be to Sir Wm. Horne. Evans to refund. It stood over several times to allow affidavits to be filed.

Kindersley for the petitioner, insisted that Mr. Evans as trustee had no right to charge at all, and that though there were no specific items impugned, yet the whole bill was objected to. The case was so paltry, he would rather have the decision of the Court at once, than wait for further affidavits.

Dec. 15 and 22.
WHITMORE . SLOAN.
Practice-New Orders-Taking exceptions off file.
Te answer in this case was filed on the 15th of
August last, and exceptions thereto were filed on
the 10th inst.; and an application was now made to
the Court to take them off the file for irregularity,
inasmuch as they were filed after the six weeks al-

Wright and Evans for the respondent.
The MASTER of the ROLLS.-Solonga time as forty-lowed by the New Orders had expired.
eight hours, at least, elapsed between the delivery and
the payment of the bill and no notice was taken of it,
and therefore there can be nothing like pressure in the
case. Then it is to be recollected that a third party
can have no more right against a solicitor than his
own client himself could. I suspect the whole pinch
of this case lies between Mr. Geary and Messrs.
Pickering themselves, as to their respective liabilities.
But however that may be, as this petition comes here
on the ground of pressure, and none is shewn, but
the facts of the case are the other way, I dismiss it

with costs.

Omission.

Alderton, for the motion, referred to the 14th Order, r. 2, as to the long vacation not reckoning in the computation of time in the present case; and to the 8th Order, r. 3, as fixing the commencement of the long vacation on the 10th of August and the end on the 28th of October. The day, therefore, when the time within which exceptions might be filed commenced to run, was the 29th of October; and six weeks being the time allowed by the 16th Order, r. 22, for filing the exceptions, that time expired on the 9th of December; and therefore, as they were filed on the 10th of December, they were one day too late.

In the

LORD DENMAN, C.J. now delivered the judgment of the Court. This was an action of replevin for distraining the plaintiff's cattle in a place called Common, to which the defendant pleaded in justification, in the forest or place called Dartmoor, and the adjoining unenclosed lands, a custom of driving the cattle, and feeding there, to a place called Cattle-pond, within and parcel of the place in which, &c. in order to ascertain whether they were rightfully there, and whether any commoner had surcharged the common, and to impound such as were not rightfully there. The plea stated that the plaintiff was a freehold tenant of certain lands, and entitled to common for cattle lerant and couchant, and justified the driving the cattle under the custom, and of distraining them damage feasant. To this the plaintiff replied, after admitting the allegation in the inducement to the plea, that the defendants, of their own wrong, and without the cause assigned, distrained the plaintiff's cattle, and the defendant demurred to the replication, on the ground that the replication de injuria was inapplicable;-that the plaintiff should have traversed or admitted the custom, and that the justification was under an authority of law. There is no question which has given rise to more discussion in the courts of law than the application of the resolutions in Crogate's case; and it is by no means easy to determine a case to bring it within any one of these resolutions. The general rule as laid down in Crogate's case is that de injuria may properly be pleaded when the defendant's plea constitutes matter merely of excuse, and no matter of interest whatever, but that it cannot be replied where matter of record is part of the issue, or where the defen lant derives any authority remote or immediate, or if the defendant by himself or his servant claims an interest in it founded on au thority given by law, or where the defence is not excuse merely, but satisfaction or discharge. argument, it was contended for the defendant that the custom must be specially traversed,-that the authority of the defendant was immediately derived from the plaintiff as one of the commoners, that the defence is founded on authority of law, and that the plaintiff ought not by this general replication to oblige the defendants to prove the plaintiff's right to the common. With respect to the first of these points most relied upon by the defendant, that the the custom should be either traversed or admitted, several cases are cited to shew thereplication de injuria to a plea justifying under a custom is bad ; Banks v. Farquhar (Hob.), and Bell v. Wardell (Willes, 202), are express authorities on this point, and Fitch v. Rawling (2 Hy. B. 394); and Selby v. Robinson (2 T. R. 758), where the defendant justified under a custom, and the replication traversed the custom; but in Wells v. Cotterel (3 Levinz, 48), it was held by the majority of judges that de injuria to a plea justifying under a Sheffield, on the same side, cited -v. Scuda-custom was good. It is to be observed in the case more (6 Law T.) of Banks v. Parker, the Court gave no reasons for their judgment. In Bell v. Wardell the replication was admitted by the plaintiff's counsel to be bad, because it put several matters in issue, which according to the authorities was a fatal objection unless the different matters make up one defence. The older authorities are not very clear or consistent with each other as to the cases in which de injuria may be replied or not. It was said by Chief Justice Eyre, in Jones v. Kitchin (1 Bos. & P. 76), that de injuria Monday, Dec. 22.-The MASTER of the ROLLS.- can only be replied when an excuse is offered for a The answer was filed on the 15th of August, in the personal injury. The modern authorities, however, long vacation. The New Orders came into opera- have greatly extended the use of the replication de intion on the 28th of October, on which day the long juria, and it is now held that where the plea contains vacation under those Orders ended. On the 29th, merely matter of excuse, it does not fall within any of the time for filing exceptions began to run, and the exceptions reported, and the replication is in all ended on the 9th of December; the exceptions were cases to be allowed for a tort. The case of Selby v. filed on the 10th, and are therefore one day too late. Bardons (3 B. & Ad. 1), affirmed in error, is the This is a slip so venial, so accidental, and so little leading modern decision on that point. Though Lord likely to happen again, that I regret advantage should Tenterden differed from the rest of the Court, the law have been sought to be taken of the irregularity. I may be now considered as settled, though its applicawould also allow the exceptions to be filed if an ap- tion in some cases may not be easy. If the rule plication were made to me. I therefore make no be as above stated, there is no reason why the cusorder on this occasion, and give no costs on either side. Let the exceptions remain, and allow four days of next Term to elect whether the exceptions will be submitted to or not.

Kindersley opposed the motion on two grounds: Wednesday, Dec. 10. first, if the long vacation terininated on the 28th, we TUCK V. RAYMENT. are still within the 42 days, for the auswer was filed Practice-Master in rotation-Irregularity-Delay-on the 29th. [The MASTER of the ROLLS.-The answer was filed on the 15th of August. The quesThere having been steps taken in a cause, and a refer- tion is, when the time begins to run.] If the 29th ence to the then Master in rotation, every subsequent of October were the day on which the answer was reference must be to the same Master; and it is irre-filed, we should just be in time; and according to the gular to obtain an order of reference from the officer former Orders we had two months, and the long vawithout mentioning that there have been references to cation did not count; and so we should be in time if a Master already; but if there is evidence that the the old practice prevailed, as it ought in this case, irregularity was a mere omission, and not a wilful for the New Order relating to the commencement and delay fraudulently to gain time, it will be excused. end of the vacations cannot apply to the particular This was an application by the plaintiff in the cause vacation at the end of which only it begins to operate. for an Order of the Court that one of two Masters, [The MASTER of the ROLLS.-Why not the terminawho both repudiated the jurisdiction, should take tion of a particular time, if not the beginning] There cognizance of exceptions to the defendant's answer. The case is reported in 5 Law T. 535, and it stood over for affidavits to shew that the plaintiff's mistake was accidental, and did not result from a fraudulent intention to gain time by delay. These having been produced,

Kindersley (with him Hubback), in the absence of Addis, stated the case, and read the affidavits. The plaintiff could have no object in delaying; for his bill is to redeem a mortgaged estate, and he is in prison for the very same debt for which the estate is mortgaged, and with which, as he alleges, he is unjustly charged. And, besides, he is suing as a pauper, so he can have no wish to delay.

Greene, contrà.-The affidavits do not touch the question of negligence at all; they merely state how the thing happened. The plaintiff attended three references, and knew very well who was the proper Master; but he was wilfully negligent and perverse, and shut his eyes, or at all events neglected to open them. We are purchasers, and are put to expense in this and every way by the plaintiff, for he has filed another bill against us. The motion ought to be refused.

The MASTER of the ROLLS.-In this case I lay aside from my consideration every thing that has been said as to the plaintiff being "wilful" and "perverse," and as to his obstinacy in a cause not now before me. The case is simple. The defendant being required to put in his answer, asked for additional time, and having obtained the ordinary certificate of the bill being filed, got the order marked with the

are no merits.

Elderton, in reply, contended that the case cited amounted to nothing. The time for excepting commenced from the filing of the answer, and the New Orders applied. They were promulgated, too, in May last, and there was time enough to prepare; there fore, there was no case for indu'gence. They might have made a special application.

The MASTER of the ROLLS said he would consider, as it might turn out to affect other cases.

tom may not be included in the general traverse; it is a mere matter of excuse, not coming within any of the exceptions in Crogate's case; nor is there any sufficient reason to contend that the defendant's authority was derived from the plaintiff; on the contrary, it would be derived from the master forester of the forest of Dartmoor. Nor is the defence founded on

The Cambria arrived at Algiers on the 15th of March, 1842, but, owing to the number of vessels then lying there (there being at that time nine other vessels chartered by the defendants, and waiting in turn to be discharged) she did not commence discharging until the 29th of April, 1842. No demurrage was due to the plaintiff if the lay days were to be calculated from the time when the Cambria had her turn to deliver assigned to her by the French authorities at the port, and the question therefore was, what was the meaning of the words in the charter-party, "ready to unload and in turn to deliver?" Evidence was given by the defendants that, amongst brokers and merchants in the coal trade, the words "in turn to deliver" in the charter-party were well understood as being applicable to all ports receiving coals on government account, and that, according to the known usage of the trade, they meant, that the vessel should unload in turn, in the order of arrival with other vessels employed by the same merchant and consigned to the same place. The admission of this evidence was objected to on the part of the plaintiff, but his lordship overruled the objection, and received the evidence, leaving it to the jury to say whether there was proved such a known definite usage as shewed that the words were understood in the meaning contended for by the defendants. The jury found a verdict for the defendants. A rule nisi having been obtained by the plaintiff for a new trial, on the ground that the evidence of usage so tendered by the defendants was inadmissible, and that if it was admissible, the verdict was against evidence,

Channell and Shee, Serjts. (Bovill with them), shewed cause, and contended that the words in question, if the charter-party was to be construed strictly and independent of usage, shewed that the vessel must be one of a series, and was not to unload directly on its arrival at the port. If, however, there was any ambiguity, the words must be construed according to the meaning they had acquired in the mercantile trade, and the following cases were cited as shewing the grounds on which such evidence is receivable:-Robertson v. French (4 East, 130); Hutton v. Warren (1 M. & W. 466); Haynes v. Holliday (7 Bing. 587); Lewis v. Marshall (8 Scott, N.R. 477). Sir Thomas Wilde, in support of the rule, contended that no contracts which the defendants might have made with the marine department of the French government, under which the defendants might have bound themselves to observe certain regulations for the unloading of vessels, could affect the plaintiff, who was no party to such contract, nor had any notice of