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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 ne. cessary 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.
In re RAVENSCROFT.
A testator gave his residuary estate in certain portions between his two granddaughters and his four grandsons. He afterwards drew a line through the material parts of the bequest, and by a marginal note stated that one grandson being dead and the other three being provided for, he intended to bequeath 1,0001. to each of his grandsons, and the residue between his two grand
daughters :-Held, that the first bequest was the three sons, and the residue of my for. cancelled, and that the grand-daughters were tune not before herein disposed, to be entitled to the whole fund, subject to the three equally divided between the two daughters legacies of 1,0001.
of my said late son, George Ravenscroft;
my meaning is, which I do not think is In this case a petition was presented by clearly expressed in this will, that none of Lord and Lady Hereford, and the trustees these bequests to the three sons and two of their marriage settlement, and Mr. and daughters of my late son George RavensMrs. Fairfax, for the purpose of having the croft shall take effect until after the death opinion of the Court as to the effect of a of my wife, Emma Ravenscroft." partial cancellation in the will of the grand- At the death of the testator, the three father of the female petitioner.
remaining sons of his son George RavensThe petition stated that Edward Ravens- croft were still living, two of whom had croft, by his will, dated the 18th of April, since died; and the petitioners, Emma 1825, gave all his residuary estate and Jemima Viscountess Hereford, and Louisa effects to his trustees, upon trust, to divide Constantia Fairfax, were the only daughters the same into sixteen shares, and convey, of the said George Ravenscroft. The pay, transfer, or assign the same to the four widow of the testator died in August, sons and two daughters of his late son, 1848, and the residuary estate amounted to George Ravenscroft, in the following pro- 25,0001., and the executors and trustees of portions :-to each of his two daughters the will paid that sum into court under the who should attain the age of twenty-one Trustee Act (10 & 11 Vict. c. 96.), and the years, or marry, which should first happen, petitioners now sought for payment out to four sixteenth parts thereof; and to each of them in moieties, after deducting the three such of his four sons who should attain the legacies of 1,000l. each given to the three age of twenty-one years, two sixteenth parts grandsons of the testator by his will. thereof: the share of the sons to be payable Mr. Bethell and Mr. Freeling appeared on his or their attaining the age of twenty- in support of the petition, and contended one years; and of the daughters on her or that the grand-daughters were entitled to their attaining that age, or marrying with the whole, after payment of the three legathe consent of his trustees. Provided, cies of 1,0001. nevertheless, that if any such child or Mr. Rolt and Mr. De Gex appeared for children should attain the age of twenty- the representatives of one of the brothers, one years, or marry during the existence of and argued, that the cancellation was merely the trusts, or any of them thereinbefore deliberative and conditional on the testator's declared, then the payment of such share living to make another disposition; and or shares should be postponed until after that the memorandum might be construed the decease of his said wife, and be subject as applying only to the share of the brother to the several trusts by his will therein- who had then died. before declared.
Mr. J. Parker and Mr. Cairns appeared The testator, some time afterwards, struck for the trustees. out a portion of the said residuary bequest, commencing at the words “To divide the The Vice CHANCELLOR said, his opinion same," down to the words "twenty-one was, that the two grand-daughters of the years," and wrote in the margin of his testator were entitled to the whole of the will the following words :-“ One of the residuary estate, subject to the payment of sons is dead, and the remaining three sons the three legacies to the three grandsons of being otherwise provided for, I intend to 1,0001. each. The order must, therefore, be bequeath one thousand pounds to each of according to the prayer of the petition.
END OF TRINITY TERM, 1849.
ORDERS OF COURT,
Friday, December 29, 1848.
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. 1.-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 consist ent with the said act of parliament and with these orders, are to remain in full force and effect.
11.–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
the same days-and, 2. The vacations are to be observed at the
same times-and, 3. The clerk is to attend in the office during
the same hours, as are, for the same purposes and in relation to the same matters, appointed by the general rules of the Court of Chancery in the Office of the Clerks of Records and Writs, subject nevertheless to such alterations, as for some special reasons, may be at any time made by the Lord Chancellor, with the advice and assistance of the Master of the Rolls.
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 receiv. ing 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 resi. dence 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 one of her Ma. jesty'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.
Fees to be received by the Clerk of the Petty Bag.
£. s. d. For filing every qualification of a mem
For administering every oath and quaber of parliament... . .0 2 0 l ification in court (except on adOn every Dedimus Potestatem issued
mission of solicitors). ..... 2 2 0 from the Crown Office to swear a Jus
For swearing any officer of the court tice of the Peace . . . . . . . 0 2 6 whose admission is inrolled in the On filing every affidavit of execution of
Petty Bag Office (except solicitors) articles of clerkship, entering affida.
and inrolling the admission. ... 5 0 0 vit, and making the indorsements re
For attending with records or other quired by the act of 6th & 7th Vict.
documents in any court or place cap. 73. . . . . . . . . . . 0
(besides expenses to be retained by the For striking every solicitor off the roll,
officer to his own use) per diem . . 2 2 0 either at his own request or otherwise 0 7 6 For filing the returns to all special comFor altering the name of every solicitor
missions, articles of the peace on a on the roll .
supplicavit, and commissions and For every certificate of striking a solici
writs of every kind returned and filed tor of the roll, and for every other
in this office . . . . . . . . . 0 2 6 certificate not herein specifically men
Drawing and signing the certificate tioned . . . . . . . . . , . 0 2 6 under the officer's hand of any return For inrolling every surrender . . . . 1 100 being filed in this office where no office For the admission of every Master in
copy is taken . . . . . . . . 0 2 6 Chancery .......... 1 12 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.
£. s. d. For every congé d'élire for a bishop. 9 17 10 For every royal assent for an archbishop 19 15 8 Ditto for a bishop. ... 9 17 10 For every patent of assistance and writs
of restitution for an archbishop... 30 17 8 Ditto for a bishop . . . . . . . . . 15 8 10 For every appointment of a bishop for the
Isle of Man . . . . . . . . . 9 For preparing and issuing every certiorari
other than to remove causes from the
inferior courts . . . . . . . . 30 0 For preparing every mittimus and tran
script of commission of lunacy, return and inquisition thereon to the Lord
Chancellor of Ireland ...... 3 0 0 For preparing and issuing every special
commission to seize lands escheated to the Crown, or purchased by aliens, or
forfeited by felons, of one skin only , 6 0 0 For every additional skin . . . . . 3 0 0 For the writ of summons to every peer
and law officer, and for election of members . . . . . . . . . . 0 For making out the commission for
electing the peers of Scotland ... 5 14 For drawing and ingrossing the parlia
ment pawn . . . . . . . . . 10 0 0 Ditto for Ireland ........ 5 0 0 The bags for the writs ...... 0 10 0 Fee from the messenger to the Great
Seal . . . . . . . . . . . 5 5 0 For sealing every original writ of scire
facias to revoke letters patent or com
mission on petition of right. ... 5 0 For sealing every alias or testatum scire
facias . . . . . . . . . . . 2 10 For sealing every scire facias on recog
nizance or traverse . . . . . . . 1 0 0 For examining and filing every bond of
indemnity against costs and affidavits 1 0 0 For filing a traverse to an inquisition · 2 0 0 Entering appearance for every defendant For entering every rule requiring entry
only . . . . . . . . . . . 0 7 0 For drawing up and entering every
other rule . . . . . . . For drawing up and entering a special
order . . . . . . . . . . . 2 0 For signing every judgment or entry of
nolle prosequi . . . . . . . 1 0 0 For filing a record of issue on a scire
facias to revoke letters patent or tra
verse, and sealing the transcript . . 5 00 Ditto on a scire facias on recognizance,
or on a bill against an officer of the
court . . . . . . . . . . 2 0 For drawing and entering an order to
vacate letters patent . . . . . . 2 0 0 For filing order for delivery out of bond. 0 10 0 For swearing every deponent to an affi
davit . . . . . . . . . . . 0 1 6
€. s. d. For every exhibit thereto . . . . . 0 2 6 For taxing a bill of costs for every side. 0 1 0 For filing every affidavit . .
0 For office copy of affidavit, per folio. . 0 0 4 On filing every bill against an officer of
the court . . . . . . . . . . 0 10 0 For preparing, ingrossing, and perfect
ing the exemplification of any record,
if one skin only . . . . . . . . 5 5 0 For every additional skin ..... 1 6 8 For every search for a precipe or writ
filed. . . . . . . . . . . . 0 1 0 For searching the calendar for every year 0 1 0 For inspection of any record besides the
search . .. ...:: ::: 0 2 6 For the office copy of any record, per folio 0 0 4 For certificate of examination under the
officer's hand and the office seal .. 0 3 4 For the re-examination of the copy of
any record, if short . . . . . . 0 3 6 If long, per folio...
0 0 For sealing every writ of,
Audita querela . . . . . . . . 0 15 0 Ad quod damnum .. .
• 0 10 0 Accedas ad Curiam . . . Attachment . . . . . Commission of errors ... Contumace capiendo . ...
0 15 0 Coronatore eligend' or amovend... 0 10 0 Capias ad satisfaciendum . . . . . 0 15 0 Certiorari (except to remove a conviction for felony) · · · · ·
5 0 Dower. . . . . . . . . 0 5 0 Error . . . . . . . . . Ditto to Parliament . . . . . : 3 3 0 Excommunicato capiendo .... : 0 15 0 Elegit . . . . . . . . . . . 0 15 0 Executione Judicii ..... 0 5 0 False Judgment. . . . . . . . 0 5 Fieri facias . . . . . . . . . 0 15 Inquiry of damages . . . . . . Justicies . . . . . . . . . . . Levari facias ..
0 15 Mittimus upon certiorari or significavit 0 15 0 Ne exeat regno . . . . . . . .
0 10 0 Ne admittas . . . . . . . . . Pone . . . . . . . . . . . Procedendo .. . . . . . . . . Prohibition . . . . . .
0 10 0
. . Quare impedit. ..
0 10 0 Regardatore eligend' or amovend'.. Recordari . . . . . . . . . .. Supersedeas .... Scire facias (except those specially mentioned) . . .
0 10 0
. . . . Venditioni exponas . ... ... 0 15 0 Venire . . . . . . . . . . . 0 15 0 Ventre inspiciend' . . . . . . . 015 0 Viridario eligend' or amovend . . . 0 10 0 Writ of privilege ....... 015 0 For rescaling every writ. .... 0 2 6
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