1843. CAIN ย. TEARE. ple absolute, or an estate for life, with an alternative executory trust, in fee, if Henry Allen pre-deceased her, an event which did not happen. It is impossible to deny that the word heir in a Deed, may be either a word of limitation, or of purchase; it is a flexible word, and even admitting that it is more properly a word of limitation than of purchase, yet being, as I have said, a flexible word, it is much more flexible when used in the singular than when used in the plural, to denote a class, as "heirs”. Their Lordships think they are able to elicit from this Deed a sufficient clear intention to warrant their considering the word heir as a word of purchase, pointing to the person who should be living and answer the description at a particular time. The question then is, at what time is the heir to take? The words of the trust are, "Upon the death of Henry Allen, to assure and convey unto the said Jane Allen and her heirs, if she should be then living, or, if she should be then dead, unto the heir-at-law of the said Jane Allen, and the heirs and assigns of such heir-at-law:" the word "then" is twice used by the settlor, and used clearly as an adverb of time; then at what time? Why unquestionably the time mentioned immediately before, namely, the death of Henry Allen. Their lordships are of opinion, therefore, that the decree of the Court below was right, and must be affirmed, and the Appellant must pay the costs of this appeal. ON PETITION FROM THE SUPREME COURT BETHEL HENDERSON Appellant, AND ELIZABETH HENDERSON and others - Respondents.* and 16th June 1843. Upon a petition stating that a party against whom a decree had been pronounSupreme ced by the Court of Newfoundland, was at the THIS was an application for leave to appeal from a final Decree of the Supreme Court of Newfoundland, made on the 6th of June 1841, in a suit in which the Respondents, Elizabeth Henderson, Charles Simms, and Joanna his wife, were Plaintiffs, and the Appellant was Defendant. The Bill was filed by the Respondents for an account of certain partnership transactions and dealings between the Defendant's father, William Henderson, and Jordan Henderson, both deceased; by an order of the Supreme Court the Bill ordered to be taken pro confesso, as against Defendant, for want of an answer. Upon a reference the Master reported certain sums to be due from the Defendant to the Plaintiffs, and the Supreme the Judicial Court decreed that the sums so found by the Master Committee gave leave to were due and owing by the Defendant to the Plaintiffs. appeal upon The Defendant being resident in England, and out of time resident was in England, and had no the * Present: The Lord President (Lord Wharncliffe), Lord Brougham, the Vice-Chancellor Knight Bruce, and the Right Hon. Dr. Lushing ton. representative within the Is land, or notice of proceedings against him; terms; not withstanding that he had not asserted an appeal within fourteen days from the final Decree as required by the Charter of Justice of Newfoundland. 1843. v. CASES BEFORE THE PRIVY COUNCIL. the jurisdiction, and having no one to represent him in HENDERSON the island, had no notice of these proceedings, and could take no steps therefore to avert them, or to appeal from the decree thus made, which was ex parte. HENDERSON. By the Charter of Justice and the Rules of the Supreme Court of Newfoundland, leave to appeal from any judgment, decree, order, or sentence, must be applied for within fourteen days after the same has been pronounced; this under the circumstances was impossible: the decree having been enrolled, the Plaintiffs had taken steps to enforce it against the Defendant here, by commencing actions in the Court of Queen's Bench in England, to recover two several sums of £8,883. 6s. 8d., being the sums mentioned in the Decree, as due from him to them. He accordingly presented a petition to Her Majesty in Council, setting forth these facts and circumstances, and the proceedings of the Court below, and prayed that he might be at liberty to prosecute an appeal from the original Decree, and the several orders and proceedings upon which the same was based, and in particular that the order for taking the Bill pro confesso against him, might be reversed and set aside for irregularity, and that in the meanwhile all proceedings in the actions in the Queen's Bench might be stayed by order of Her Majesty in Council. The petition was supported by an affidavit of the facts filed by the petitioner. Mr. Purvis, Q. C., for the petitioner, the Appellant. Mr. Rolt, for the Respondents. Their lordships granted leave to appeal from the 1843. 0. order for taking the Bill pro confesso, upon the terms of the petitioner giving security to the amount of the HENDERSON sums declared due from him, and prosecuting the appeal with due diligence, and ordered him to pay the costs of this application. By an Order in Council confirming the report of the Judicial Committee, leave was given to the petitioner to prosecute his appeal from the final order of 6th of June 1841, upon terms of lodging his case within three months, and lodging within thirty days from the date of the Order in Council the certificates of recognizance to Her Majesty, in a penalty of £18,100, entered into jointly and severally before one of the Barons of Her Majesty's Court of Exchequer, by two or more securities to be approved by the Clerk in Council, conditionally to stand and abide such determination and order as might be made on the said appeal. (a) (a) On the 31st May 1844, a demurrer to the action at law referred to in the petition, on the ground that it was not maintainable, being upon a Decree of a foreign Court of Equity, was overruled by the Court of Queen's Bench,* and on the 20th of July 1844, a demurrer for want of Equity, to a Bill praying for an injunction against proceeding in such action was allowed. The appeal allowed by the Privy Coun cil was not prosecuted. * Henderson v. Henderson, 6 Queen's Bench Reps. 288. ↑ Henderson v. Henderson. 3 Hare's Rep. 100. HENDERSON. ON PETITION FROM THE SUPREME COURT 16th June 1843. The Supreme Court at the Mauritius re fused to allow an appeal to the Queen in Council, from a definitive sentence in a suit for a di á vorce & vin Heard Ex parte. THE petitioner, William Bird Hulm, intermarried with the Respondent, Françoise Hulm, formerly Laboulaye, in the island of the Mauritius, in the year 1839. Some time afterwards, and during the absence of the petitioner from the island, the Respondent instituted a suit in the Court of First Instance, and obtained, in default, a sentence of divorce á vinculo, on certain allegations of personal violence charged to have been exercised by the petitioner on the person of his wife. The petitioner interposed an appeal to the Supreme Court of the island. This Court by its definitive sentence, in degregate sum of fault, confirmed the sentence of divorce appealed from. ling, for per- The Court of appeal in confirming the previous the Order in judgment by default, of the Court of First Instance, Council, to be nevertheless authorized the petitioner to appeal to Her peal, and the Majesty in Council against the said several sentence of thereby. On divorce, but only on condition of the petitioner giving petition, the Judicial Com- security in the aggregate sum of £1,200 sterling, that mittee allow is to say, £200 sterling for the costs of appeal, and the ed the appeal, culo, except upon terms of giving security in the ag £1,200 ster formance of made on ap costs incurred fixing the security at £300. * Present: The Lord President (Lord Wharncliffe), Lord Brougham, the Vice-Chancellor Knight Bruce, and the Right Hon. Dr. Lushing ton. |