TURNER v. EVANS. [*746] that must be interpreted, or aided in its interpretation, by the context-by the object for which, and the circumstances under which, it has been used. Now, what has the defendant done? Having or not having (it is immaterial which) a dwelling-house, counting-house, cellars, and a stock of wine, at Chester, but having not any one of these things in the county of Caernarvon, nor any establishment of any kind there, he may, with sufficient accuracy for every present purpose, be represented as having gone into Caernarvonshire, there solicited and there obtained orders as a wine merchant from inhabitants of that county, and executed those orders by supplying to the persons from whom he received them, the wine ordered, by sending it from another county to them in Caernarvonshire, thereby making them, of course, his debtors for the price; and it is said, that nevertheless he has not carried on the business of a wine merchant in Caernarvonshire. But a person selling wine with a view to profit is, I apprehend, not necessarily a person having a dwelling-house, a counting-house, a shop, or cellar, or even wine itself. It is or may be true that, at the time of the execution of the instrument under consideration, the defendant had, and the plaintiffs, who were parties to it, intended also to have, all those things; not one of them is or was essential, however, as I think, to the idea or notion of a person selling wine with a view of profit. There are upholsterers, haberdashers, managers of theatres, and other dealers quorum plaustra ragas rite trahunt domos, and why not wine merchants? Are there not dozens or hundreds of coal merchants, for instance, in this town who own neither house, nor ship, nor waggon, nor yard, nor coals, but who obtain orders, and execute them by giving corresponding orders to some other dealers in coals who possess such things? 66 Do none carry on business in Smithfield but the surrounding householders? Do we carry on" a war only at head quarters? and what is meant by "carrying on a design? Ought the words "carry on," as used in the contract, to be read as meaning or including the meaning of "pursue" or 66 prosecute?" If they ought, the defendant must surely, I suppose, be in the wrong here. But if they ought not, I am still not persuaded that the plaintiffs are so. If, however, it is not essential to a wine merchant to have a house, or counting-house, or cellars, or stock, but is only essential that he should sell or endeavour to sell wine, does he not "carry on" that business not necessarily where his home (if any), his countinghouse (if any), his cellar (if any), or his stock (if any), is, but where he does the essential act? I am of opinion that he does. If he has a counting-house or a cellar he may probably or certainly be said in a sense to carry on his business there, but not necessarily there exclusively. The consequence is, that the defendant, in my judgment, has broken his contract, and, thinking that he has done so in bad faith and dishonestly, I consider that the plaintiffs have shown a sufficient title to an injunction, at least in the words of the instrument before *us. But my learned brother being of opinion that the order of the VICE-CHANCELLOR ought to remain as it is, it will of course remain so, and I need not add how likely a conclusion that has the concurrence of two such men is to be correct. The action was tried at the Caernarvon Assizes, when a verdict was found for the defendant. During Easter Term, 1853, a rule was obtained to show cause why the verdict should not be entered for the plaintiffs, with nominal damages. On cause being shown on June 6th, 1853, the rule was made absolute, the Court of Queen's Bench being unanimously of opinion that the acts in question amounted to a breach of the covenant. On the 23rd of June judgment was signed for the plaintiffs. On the motion being renewed before the Vice-Chancellor on this day, a decree was taken by consent, granting a perpetual injunction in the words of the covenant, and directing payment by the defendant of the costs of the suit. IN THE MATTER OF NEDDY HALL'S ESTATE. (2 D. M. & G. 748-749; S. C. 20 L. T. O. S. 187.) Extracts from parish registers signed by persons, describing themselves in such signatures as "rectors " or "vicars," held sufficient within the Evidence Act, 1851 (14 & 15 Vict. c. 99), but not where the description was "incumbent" or "curate" without further evidence. THIS was a petition for the payment of money out of Court, and a difficulty having been raised in the Registrar's office as to the sufficiency of some of the documentary evidence under the 14 & 15 Vict. c. 99, the case was, at the request of Vice-Chancellor Turner, mentioned to their Lordships, in order that the practice might be settled. In re NEDDY HALL'S ESTATE. [ *749 ] The documents in question purported to be copies of or extracts from parish registers, and were signed thus, *" A. B., Incumbent,” or "A. B., Rector," or "A. B., Vicar," or "A. B., Curate." Their Lordships expressed their opinion that the words “rector," "vicar," in the copies, might by a reasonable intendment be taken to mean "rector" or "vicar" of the parish or place mentioned in the copy, but that where the words were only "incumbent" or "curate," it might be a question whether such persons were the proper persons to have the custody of registers. Lord CRANWORTH observed that solicitors would save themselves and the Court much trouble, and their clients expense, if in all such cases, to the name of the person signing the extract, the words "of the aforesaid parish were added. 1852. Nov. 8, 9. WARD V. THE OXFORD, WORCESTER, AND (2 D. M. & G. 750—771; S. C. 22 L. J. Ch. 905; 1 W. R. 9.) 1852. Nov. 11. BLAKENEY v. DUFAUR. (2 D. M. & G. 771-775; S. C. 22 L. J. Ch. 389; 17 Jur. 98; 1 W. R. 9.) Where a plaintiff, not being in the public service, goes abroad pending a suit and remains there under such circumstances as to render it probable he will not be forthcoming when the defendant may be entitled to call upon him to pay costs, the Court will direct him to give security for costs. [For the practice under the Judicature Act and Rules, see now Massey v. Allen (1879) 12 Ch. D. 807, 48 L. J. Ch. 692, 41 L. T. 788, 28 W. R. 243.] 1852. Nor. 12, 13. KNIGHT Lord CRANWORTH L.JJ. [775] BLANN v. BELL. (2 D. M. & G. 775–783; S. C. 22 L. J. Ch. 236; 16 Jur. 1103; 20 L. T. O. S. 162; affirming 5 De G. & Sm. 658.) 1. A testator gave the residue of his freehold, copyhold, and leasehold estates and all other his estate and effects, upon trust to pay the dividends and interest, rents, profits, and annual produce to E. B. for life, with remainders over. This residue consisted of leasehold property, canal and insurance shares, and Dutch bonds: Held, that the tenant for life was entitled to enjoy the leaseholds in specie, but not the shares or Dutch 2. Under a bequest of residue, upon trust to pay the dividends of 1,500. THIS was an appeal from a decree of the late Vice-Chancellor PARKER. The following statement will be found sufficient for the purposes of this report. Thomas Blann, the testator, by his will, after giving his residuary estate to trustees, directed them to stand possessed *thereof, upon trust to pay the dividends of 1,500l. 31. per cent. Reduced Bank Annuities to a legatee for her life, and then the will proceeded as follows: "And at her decease I direct the dividends arising from the said sum of 1,500l. 31. per cent. Reduced Bank Annuities to be equally divided between my said wife Edith Blann and my niece Frances Rayner, and the survivor of them." Then followed trusts for payment of the dividends of 2,000l. 31. per cent. Reduced Bank Annuities to Robert Green for his life, for payment of the dividends of 1,000l. like Annuities to a Mrs. Ash for life, and of the dividends of 2,000l. like Annuities to a Mr. Cole for his life, with limitations over as to the dividends of each of these sums, in trust to be equally divided between Edith Blann and Frances Rayner and the survivor of them. The will then proceeded as follows: "And as to all the rest, residue, and remainder of my freehold, copyhold, and leasehold estates, and all other my estate and effects (subject to such power of appointment as is hereby vested in my said wife), upon trust to pay the dividends, interest, rents, profits, and annual produce thereof to my said wife Edith Blann, or otherwise permit and suffer to receive, and take, and enjoy the same for and during the term of her natural life." After the decease of his wife the testator gave the sum of 10,000l. sterling, "part of the said residue," to such person or persons and in such manner as his wife should by will appoint; and from and after the decease of his said wife the testator directed his trustees, as to such residue of his said estate and effects, subject to such power of appointment as aforesaid, to pay the interest, dividends, and annual produce thereof to his niece Frances Rayner for life for her separate use, and from and after the decease of the survivor of them the said Edith Blann and Frances Rayner, then to divide such residue of his estate and effects unto and among the child and children of his said niece Frances Rayner share and share alike; and in case she should die BLANN v. BELL. [ 778 ] without issue lawfully begotten who should live to attain the age of twenty-one years, then the trusts were declared to be from and after the decease of the survivor of them the said Edith Blann and Frances Rayner to pay to and divide among any child or children. of Edith Blann by any future husband 4,000l. as and when they should respectively attain the age of twenty-one. Other pecuniary legacies were given in the event of there being no children of the legatees for life who should live to attain vested interests; and then the will proceeded thus: "And as to the residue and remainder of my estates, in the event of my said niece Frances Rayner dying without issue lawfully begotten, who shall live to attain the age of twenty-one years, then from and after the decease of the survivor of them the said Edith Blann and Frances Rayner, I direct my said trustees to divide such residue into two equal moieties or half parts, and to hold the same in trust for the following charities, and to be disposed of as follows." The testator then bequeathed one-half of "such residue" to the Hertford Infirmary, and the other half to the Bath Infirmary. By the Master's report it appeared that the residuary personal estate consisted of three shares in the Brecon and Abergavenny Canal, sixty shares in the Avon and Kennett Canal, 193 bonds in the Dutch 21. 10s. stock, twenty shares in the Eagle Assurance Company, a leasehold messuage and a leasehold stream of water, and that the residuary real estate consisted of a corn mill and other hereditaments. By the decree under appeal it was declared that the widow was entitled to a life interest only in the dividends of the 1,500l. Reduced Annuities, that she was entitled to the specific enjoyment of the leaseholds, but not to that of the insurance and canal shares and Dutch bonds, which (although not wearing-funds) were directed to be converted, and the produce invested in 31. per Cents. From this decision the widow appealed. Mr. Malins and Mr. Collins, in support of the appeal, referred, upon the first point, to Humphrey v. Humphrey (1) and upon the second to Alcock v. Sloper (2), Collins v. Collins (3), Pickering v. Pickering (4), Daniel v. Warren (5), Sutherland v. Cooke (6), Oakes v. (1) 89 R. R. 182 (1 Sim. N. S. 536). (5) 60 R. R. 148 (2 Y. & C. C. C. 290). (6) 66 R. R. 162 (1 Coll. 498). |