demanded, meaning a demand of tithes of particular matters as well as of all matters, the claim of discharge shall be held to be good and valid in law, and absolute and indefeasible, upon evidence, shewing the enjoyment of the land without payment or render of tithes, money, or other matter in lieu thereof for the prescribed periods. This payment or render of tithes is obviously the same as that before spoken of, namely, the tithes demanded, just as much as if the word "such" had preceded the word "tithes." If payment or render of any tithes was to negative the discharge as to all others, the word "any" would be necessary to precede the word "tithes ;" but the word cannot be implied, there being no antecedent to support it. The act makes the defence applicable to all claims of discharge, but the construction would confine it to claims for total discharge of all tithes. The 7th section provides, that it shall be sufficient to allege that the discharge claimed was actually exercised and enjoyed during the required period. In the case supposed, the discharge claimed was for the tithe of particular articles only; but by the construction contended for, the allegation must be not only of the exercise and enjoyment of the discharge claimed, but for a total discharge. Taking therefore the very words as they stand, I should not hesitate to consider the tithes not rendered or paid identical with the tithes demanded: but had there been doubt as to the meaning of the words, the extraordinary consequences which would follow from the construction contended for, would justify some violence being done to the ordinary meaning to avoid them; all claims to discharges for tithes of particular matters would be taken out of the operation of the act, and for what reason? If lands might be legally discharged from the tithes of the particular matters, though liable to tithes in kind for others, why was the new law not to be applicable to such cases? Were not suits in such cases productive of the expense and inconvenience which the act intended to prevent? and if within the mischief, why are they not within the remedy? And why, when the act provides a defence in all cases of claims of or to any exemption from or discharge of tithes, is it to be held that no such defence shall be available, except in cases in which the discharge claimed is for the tithes of all matters? The terms used in the act, and the provision it contains, and its unquestionable object, appeared to me to negative the construction contended for. Vice Chancellor Wigram distinctly raised this point, but in the case sent by Lord Lyndhurst to the Common Pleas there were not any facts stated to raise it; and when the case came before me, notwithstanding the observations of Chief Justice Tindal and Mr. Justice Cresswell upon this point, the counsel were contented to go to the Exchequer upon the same case. It was at the suggestion of the Barons that the alteration was made. Had this been otherwise, upon the construction of this part of the act, I should have found great difficulty in giving to the plaintiff in this cause the benefit of the construction contended for. The defendant has strictly followed the directions of the 7th section, in stating his grounds for a discharge from the tithes claimed. If the plaintiff meant to rely upon any matter of fact or law in answer to such defence, he ought under that section to have alleged it specially; but the fact of payment of other tithes is not alleged or put in issue, and no evidence is to be received of it if not so specially alleged. Having given to this case the most careful consideration which its importance and the diversity of opinion amongst the Judges called for, I am of opinion, that the defendant is, under the circumstances, entitled to the benefit of the act, and that the plaintiff's bill ought at the hearing to have been dismissed with costs. I therefore substitute an order for that purpose in the place of the decree of Vice Chancellor Wigram. daughters :-Held, that the first bequest was cancelled, and that the grand-daughters were entitled to the whole fund, subject to the three legacies of 1,000l. In this case a petition was presented by Lord and Lady Hereford, and the trustees of their marriage settlement, and Mr. and Mrs. Fairfax, for the purpose of having the opinion of the Court as to the effect of a partial cancellation in the will of the grandfather of the female petitioner. The petition stated that Edward Ravenscroft, by his will, dated the 18th of April, 1825, gave all his residuary estate and effects to his trustees, upon trust, to divide the same into sixteen shares, and convey, pay, transfer, or assign the same to the four sons and two daughters of his late son, George Ravenscroft, in the following proportions to each of his two daughters who should attain the age of twenty-one years, or marry, which should first happen, four sixteenth parts thereof; and to each of such of his four sons who should attain the age of twenty-one years, two sixteenth parts thereof the share of the sons to be payable on his or their attaining the age of twentyone years; and of the daughters on her or their attaining that age, or marrying with the consent of his trustees. Provided, nevertheless, that if any such child or children should attain the age of twentyone years, or marry during the existence of the trusts, or any of them therein before declared, then the payment of such share or shares should be postponed until after the decease of his said wife, and be subject to the several trusts by his will thereinbefore declared. The testator, some time afterwards, struck out a portion of the said residuary bequest, commencing at the words "To divide the same," down to the words "twenty-one years," and wrote in the margin of his will the following words :-" One of the sons is dead, and the remaining three sons being otherwise provided for, I intend to bequeath one thousand pounds to each of the three sons, and the residue of my fortune not before herein disposed, to be equally divided between the two daughters of my said late son, George Ravenscroft; my meaning is, which I do not think is clearly expressed in this will, that none of these bequests to the three sons and two daughters of my late son George Ravenscroft shall take effect until after the death of my wife, Emma Ravenscroft." At the death of the testator, the three remaining sons of his son George Ravenscroft were still living, two of whom had since died; and the petitioners, Emma Jemima Viscountess Hereford, and Louisa Constantia Fairfax, were the only daughters of the said George Ravenscroft. The widow of the testator died in August, 1848, and the residuary estate amounted to 25,000l., and the executors and trustees of the will paid that sum into court under the Trustee Act (10 & 11 Vict. c. 96.), and the petitioners now sought for payment out to them in moieties, after deducting the three legacies of 1,000l. each given to the three grandsons of the testator by his will. Mr. Bethell and Mr. Freeling appeared in support of the petition, and contended that the grand-daughters were entitled to the whole, after payment of the three legacies of 1,000l. Mr. Rolt and Mr. De Gex appeared for the representatives of one of the brothers, and argued, that the cancellation was merely deliberative and conditional on the testator's living to make another disposition; and that the memorandum might be construed as applying only to the share of the brother who had then died. Mr. J. Parker and Mr. Cairns appeared for the trustees. The VICE CHANCELLOR said, his opinion was, that the two grand-daughters of the testator were entitled to the whole of the residuary estate, subject to the payment of the three legacies to the three grandsons of 1,000l. each. The order must, therefore, be according to the prayer of the petition. END OF TRINITY TERM, 1849. ORDERS OF COURT, Friday, December 29, 1818. THE Right Honourable CHARLES CHRISTOPHER LORD COTTENHAM, Lord High Chancellor of Great Britain, with the advice and assistance of HENRY LORD LANGDALE, Master of the Rolls, DOTH HEREBY, in pursuance of an Act of Parliament made and passed in the Session of Parliament held in the Eleventh and Twelfth Years of the Reign of Her present Majesty, intituled, "An Act to regulate certain Offices in the Petty Bag in the High Court of Chancery, the Practice of the Common Law side of that Court, and the Inrolment Office of the said Court," and in pursuance of all other powers enabling him in this behalf, ORDER AND DIRECT, that all and every the Rules, Orders, and directions hereinafter set forth shall henceforth be, and for all purposes be deemed and taken to be general Rules and Orders of the High Court of Chancery on the Common Law side thereof, viz. :— Introductory. I. All former rules and orders regulating the practice and proceedings in the Petty Bag Office, so far as the same are now in force and are consistent with the said act of parliament and with these orders, are to remain in full force and effect. II. These orders, as to all suits, matters, and proceedings now pending or hereafter to be commenced, are (so far as the same are applicable to the state of such matters and proceedings) to take effect on the 1st day of January 1849. Official Attendance and Vacations. 1. The office is to be opened and closed on 2. The vacations are to be observed at the 3. The clerk is to attend in the office during as are, for the same purposes and in relation to Clerk of the Petty Bag. IV. The clerk of the Petty Bag is to have the care and custody of the Chancery Common Law Seal, and is to use and employ the same for sealing such several writs and all such documents and writings as are, by the said act, authorized to be sealed with the same seal. V.-Affidavits, affirmations and declarations to be used in any proceeding on the common law side of the Court are to be sworn, affirmed, or declared before the clerk of the Petty Bag, or before a Master Extraordinary of the High Court of Chancery, and are to be filed in the Office of the Petty Bag. VI.-Every writ, rule, or document issued or delivered out of the Petty Bag Office is to be tested or dated on the day on which the writ is sealed, or the rule or other document is made. VII.-Every writ returned by the sheriff is to be immediately filed, and thereupon the day and hour of the filing are to be indorsed on the writ. VIII. The clerk of the Petty Bag, upon receiving the return of the transcript of the verdict of the jury, and proceedings or judgment of any Court of common law, upon any issue in law or in fact, is to file the same in the Petty Bag Office, and is to cause an entry to be made of such verdict and proceedings or judgment, and such transcript is to be annexed to the original record in the Petty Bag Office, and thereupon, the judgment of the Court of Chancery is to be entered on, or annexed to, the same record, in conformity with the judgment of the Court from which the transcript is returned. Attorney. IX.-Every solicitor, whose name is duly inrolled as such in the High Court of Chancery, may act as an attorney in any action, suit, matter, or proceeding pending on the common law side of the same Court, and is to be therein named and treated as the attorney of the party by whom he is retained. X.-Any party changing or ceasing to employ his attorney in the course of any action, suit, or proceeding, is to cause an entry of such change or cessation of employment to be made and entered with the clerk of the Petty Bag, and to cause notice of such change or cessation of employment and of such entry to be served on every party to the action, suit, or proceeding, and until such entry and notice shall have been made and served, the former attorney is to be deemed and taken for all purposes of the action, suit, or proceeding, to be and remain the attorney of the party. Scire Facias. • XI. The name and addition of the prosecutor in an action of Scire facias may be inserted in the writ, by adding after the usual words "We are given to understand and be informed" words in the form following, viz.: "by A. B., of, &c.," stating at length the name, addition, and place of residence of the prosecutor. XII.-If the name of a prosecutor be inserted in a writ of Scire facias, the fiat of the Attorney General for the issuing of such writ is not to be filed, unless the same contains the name and address of such prosecutor. XIII. The proceedings and trial in an action of Scire facias may take place and be had in such one of Her Majesty's Superior Courts of Common Law, as may be chosen by the party applying to have the writ sealed. XIV. A writ of Scire facias to revoke letters patent is not to be sealed; 1, until the fiat of the Attorney General is filed in the Petty Bag Office; 2, until the name of some one of Her Majesty's Superior Courts of Common Law is indorsed or written thereon; 3, until a true copy of the writ and of any drawings or plans annexed thereto (to be verified by affidavit) has been filed in the Petty Bag Office. XV. If such writ has been sealed before the 1st day of January 1849, and the record of the action has not been carried or transmitted into the Court of Queen's Bench, the name of some oue of her Majesty's Superior Courts of Common Law is to be indorsed on the writ, and a memorandum thereof entered with the clerk of the Petty Bag Office before any subsequent proceeding is taken in the action. XVI. The trial and any proceedings in an action of Scire facias are to take place in the court of common law, the name of which is indorsed or written on the writ. XVII.-A bond of indemnity against costs to be incurred in the prosecution of an action of Scire facias, may (if so desired by the Attorney General) be taken in the name of the clerk of the Petty Bag, but the same is not to be deposited or filed in the Office of the Petty Bag, unless the intended obligors, and the sums for which they are to give security, be named by the Attorney General. XVIII. A bond of indemnity filed or deposited in the Petty Bag Office may, at the request of the Attorney General, be put in suit under such circumstances, and upon such terms and conditions as the Lord Chancellor or the Master of the Rolls may approve of. XIX. An appearance is to be entered by or on behalf of any defendant who has been summoned by the sheriff within eight days after the writ of Scire facias has been returned and filed. Fees. The clerk of the Petty Bag is, until further order, to receive and take the several fees which are set forth in the Schedule hereunder written, and is to account for the same and pay the amount thereof into the Suitors' Fee Fund, in the same manner and at the same times, as the clerks of Records and Writs receive, account for, and pay the fees received by them in their office. THE SCHEDULE ABOVE REFERRED TO. For filing every qualification of a member of parliament On every Dedimus Potestatem issued from the Crown Office to swear a Justice of the Peace On filing every affidavit of execution of articles of clerkship, entering affidavit, and making the indorsements required by the act of 6th & 7th Vict. cap. 73. £. s. d. 020 026 0 5 0 For administering every oath and qualification in court (except on admission of solicitors) £. s. d. 2 20 500 2 2 0 For swearing any officer of the court whose admission is inrolled in the Petty Bag Office (except solicitors) and inrolling the admission .. For attending with records or other documents in any court or place (besides expenses to be retained by the officer to his own use) per diem For filing the returns to all special commissions, articles of the peace on a supplicavit, and commissions and writs of every kind returned and filed in this office. ..0 26 Drawing and signing the certificate under the officer's hand of any return being filed in this office where no office copy is taken 0 2 6 1 10 0 1 12 6 0 2 6 For every congé d'élire for an archbishop 19 15 8 This order and the following order (the 12th) were abrogated by an order dated the 3rd of August 1849, |