8 New Bills in Parliament.—Superior Courts: Lord Chancellor. Common Law at Westminster, for any debt or portant questions have been already decided in demand in which the sum sought to be re- that suit. A further question was now raised covered and endorsed on the writ of summons upon a petition presented in the cause by some shall not exceed twenty pounds, it shall be of the legatees, praying an order for payment lawful for the Court in which such suit shall be of their legacies, free from the legacy duty. depending, or any Judge of any of the said The petition was opposed by the Crown officers. Courts, to order and direct that the issue or Mr. Wigram, Mr. Bethell, and Mr. Sharpe issues joined shall be tried before the sheriff for the petitioners.-The estate of the testator of the county in which the action is brought, in India was transmitted to England for the or any Judge of any Court of Record for the purpose of distribution among the legatees, to recovery of debt in such county: And whereas whom the executors might have paid it directly, the trials under the provisions of the said act and if they had done so, there could be no have given great satisfaction to suitors, and it question or doubt that the legatees were exis expedient that the provisions of the said act empt from the legacy duty. The law upon should be extended to debts not exceeding the subject was doubtful formerly, and there fifty pounds; Be it therefore enacted, by the were several decisions which could not be King's most excellent Majesty, by and with easily reconciled. But all these doubts were the advice and consent of the Lords Spiritual removed by the late case of The Attorney Geand Temporal, and Cominons, in this present| neral v. Forbes and Juckson,Þ where the House Parliament assembled, and by the authority of of Lords held that the personal estate in India, the same, that from and after the passing of of a testator domiciled there, making his will this act, the powers, authorities and provisions and dying there, being transmitted to this of the aforesaid recited act, relating to the country for distribution, was not liable to letrial of issues in actions for any debt or de-gacy duty, under the 36 G. 3, c. 52, or any mand not exceeding twenty pounds before the sheriff, shall be and the same are hereby extended to debts or demands not exceeding fifty pounds. SUPERIOR COURTS. LEGACY DUTY. other act. The learned counsel adopted the arguments of the respondents' counsel in the case cited, which, they contended, was like the present case in every point of view. The Solicitor General and Mr. Romilly, for the Crown, submitted that the domicile of the testator, or the locality of the property, could not be admitted as principles to govern the liability to the legacy duty Attorney General v. Cockerell, Attorney General v. Beatson ;d Logan v. Fairlie. The true construction of An Englishman residing in India with his the acts of parliament, and the rules of the family, and having the bulk of his property Court were, that when the personal estate of a there, by his will executed there, gave lega- testator, a subject of the Crown of England, no cies to persons in India and in England, matter where he lived and died, came to be adand appointed executors in both countries, ministered in our Courts, the legacy duty atand the ill was proved in both. The exe-tached on that property. A departure from cutors in India remitted the estate there to the executors in England, who vested the same in the public funds. A suit was instituted against them by legatees. Held, that the property remitted from India was not subject to legacy duty. that rule, instead of placing the law on a sound principle, would let in much difficulty and uncertainty. A perusal of the acts of the 20th, 23d, and 29th G. 3, which first imposed the duty on legacies by way of stamp duty on receipts, would lead the Court to a true construction of the subsequent acts of the 36 &. 48 of G. 3. Lord Brougham, in his judgment in Attorney General v. Forbes, said that case did not overturn the previous cases of The Attorney Generalv. Cockerell, and Attorney General v. Beutson; but that they were distinguishable from it, and so was the present case. Mr. Wigram in reply.-The case of Logan v. Fairlie was reversed by the Lords Commissioners.g George Arnold, a Lieutenant Colonel in the East India Company's service, and residing with his family in India, died there in 1828, having in the same year made his will, by which he gave legacies to his wife and children, and to others in India, and to numerous relations in England, and appointed four executors, some in India and the others in England. One of the executors in India proved the will there, collected the estate, paid the testator's debts there, and transmitted the surplus of the personal estate (about 56,000/.) to the executors in England. They had proved the will in Eng-346-347. land, collected the testator's estate (not exceed. ing 2000.) and paid his debts there. The estate transmitted from India was vested by them in the funds, and they kept a separate account of it, called the "Indian account." In 1829 the testator's wife and their two children, infants, came to England; and a bill was afterwards filed on behalf of the children against the executors and others. Some im a See 2 Myl. & K. 365, and 9 Leg. Obs. b 2 Clark & Finnelly, 48. e 2 Sim. & Stu. 284. 1 Myl. & Craig. 59; S. C. 11 Leg. Obs. 181, where it is said, by mistake, that the Vice Chancellor held the duty not to attach, and that his order was affirmed. Superior Courts: Lord Chancellor; Rolls. 9 the House of Lords. It was therefore a case of the very highest authority, and the facts were the same as in this case, with one exception, that in the former case there was no representation by probate in this country. His Lordship was clearly of opinion that the fund in this case was not liable to the legacy duty. Arnold v. Arnold, at Lincoln's Inn, Dec. 22d, 1836, and at Westminster, April 20th, 1837. Rolls Court. CHARITABLE TRUST. A devise of a rent-charge to a Roman Catholic priest, and to peor Catholics, is a charitable trust, and may be enforced under the act 2 & 3 W. 4, c. 115; but if the suit to establish the charity was pending at the passing of that act, the disposition of it devolves on the crown, as before that act. 66 The Lord Chancellor, having taken time to consider the case, now gave his judgment. The question was whether the sum of 56,1697., which was appropriated, as found by the master's report, to the payment of legacies given by the testator's will, was subject to the legacy duty on the legacies payable out of it. The testator made his will in India, appointing four executors, and leaving his widow and two children | in India, one of whom was born after testator's death. The bulk of the property was in India -very little in England. The executors in England proved the will, collected the estate, and paid debts there. One executor alone in India proved the will there, collected the estate, and paid the debts of the testator there, and the surplus which was 49,1697. was remitted by him to the executors here, who vested it at interest in a separate account, called the "India account." A bill was filed in this country on behalf of the infant children against the executors, for an account, and the usual reference was made to the master, who reported in 1834 that the fund remitted from India, with interest since, This was an information filed in the name of amounting altogether to 56,1697. was for the Attorney General, at the recommendation payment of legacies. The question was whether of the charity commissioners in the year 1831, it was subject to the legacy duty on the lega- before the passing of the act of the 2 & 3 W. cies. Several cases have been decided on the 4, c. 115, an act for the better securing the act of the 36 G. 3, c. 52, the second section charitable donations and bequests of his Maof which imposing the duty is as general in its jesty's subjects in Great Britain professing the terms as it could be expressed. His Lordship catholic religion," and which puts catholics on having read the section repeated that the terms the same footing with protestant dissenters in were as general as could be used, and it could respect to their schools, places of worship, not be said that a testator domiciled out of Eng-charitable bequests, &c., provided that noland at the time of his death or of making his thing in this act should affect any suit then will was exempt. This property was remitted actually pending or commenced, or any profrom India to be administered by the executors perty now in litigation or dispute, in any of his here. That was unnecessary, and the executors Majesty's Courts of law or equity in Great in India might have avoided it by appropriating Britain." The information stated, among the legacies in India, or by paying them di- other things, that Mrs. Ursula Mountney, of rectly to those who were entitled to receive Stonecroft, in the county of Northumberland, them. The words of the act must mean per- widow, by her will dated the 16th of July, sonal estate in this couutry, and were not ap- 1680, granted to Ralph Clavering, of Callaley, plicable to such estate in India. If an exein the said county, his heirs and assigns, an ancutor abroad remits the legacies to the exe-nuity or rent charge of 321. issuing out of her cutors or to the legatees in this country, messuages, lands, tenements and hereditaments, they would not be subject to the duty; but situated in the several parishes of Warden, if a suit for administration be necessary, and Hexam, &c. and commonly called Stonecroft, the property was brought to this country for Numbush, Holeclose, &c. payable half yearly that purpose, and subject to a course of ad- by even portions, with power of distress, and ministration, all which did not depend on the subject to such disposition as she might afterdiscretion of executors, the case was dif-wards make; and she devised all her said mesferent, as in Attorney General v. Cockerell; At- suages, lands, &c. to William Lord Wedrington, torney General v. Beatson; Logan v. Fairlie. his heirs and assigns, subject to the said annuiIn this last case, Sir John Leach held the ty. By a paper writing, dated 21 August, 1680, legacy duty to be payable, on the ground that Mrs. Mountney, after reciting her will as far as the executor's agent in England had no autho- it related to the annuity, and that by reason rity to pay the legacies free from the duty; but of the malignity of the times she could not dewhen that case came before this Court (Lords clare the trusts upon which she devised her Commissioners Pepys and Bosanquet) to be re- real estates, gave directions as to the letting of considered upon the petition of another legatee, her said land to a catholic tenant; and she dithe distinction was then seen and taken, that rected 201. (part of the 321.) to be paid yearly there was a clear appropriation of the legacies to a catholic priest of the Fransciscan order, in India. But the present case is decided by for his prayers, &c., and several sums, amountthat of Attorney General v. Forbes and Jacking together to 10., to be distributed yearly son, which was a decision of the Court of Ex- among the poor and discreet catholics of Warchequer the proper tribunal for revenue den, Hexam, and other parishes; and 21. cases-upon a case sent from this Court, after-yearly to be given to the person who should wards affirmed by this Court, and finally by receive and distribute the same for his trouble; 10 Superior Courts: Rolls; King's Bench. and she appointed B. Carr for life to receive croft and Numbush, regularly paid the annuand distribute the same; and directed that he ity. The information was amended in 1833, should appoint a discreet catholic to succeed after the passing of the act securing charitable him, &c.; and that on failure, the priest of donations to catholics; and then a claim was Stonecroft, with other priests, should appoint made for the priest, as well against the crown such person. In 1693, Lord Wedrington con- as against the defendants. He was of opinion veyed, in consideration of 150l., the estates of that this was a suit commenced, and pending Stonecroft and Numbush, to Thomas Gibson, at the time of passing that act; and therefore his heirs and assigns, subject to the said an-by the proviso in the 3d section, the bequest nuity; and Gibson covenanted for himself, his was subject to the same construction and opeheirs and assigns, to pay the same to R. Cla-ation of law, as if that act had not passed. The vering, his heirs and assigns. These estates remained in the family of the Gibsons until 1822, when they were sold and conveyed to John Todd for 68007., with notice of the annuity. The deed of conveyance had no covenant against incumbrances. The 107. a year to the poor catholics of the parishes before mentioned had been regularly paid by the Gibsons up to the time of this conveyance; but John Todd, and after his death his sons, refused to recognize the annuity, or any part of it. The information therefore prayed an account and payment of the whole annuity, and the arrears of it from the Todds. The information was amended after the passing of the act 2 & 3 W. 4, c. 115, by adding the assignee of the rent-charge, and other parties claiming the benefit of the bequest to the catholic priest. Mr. Kindersley, for the Attorney General on behalf of the crown, claimed the full benefit of the whole bequest. Admitting that the bequest had a superstitious use in it, he conten. ded that that which was superstitious in the use, would not avoid that which was charitable. If the gift had been for prayers and masses only, it would have been void; but the gift was substantially for the maintenance of the priest, and that made it a valid gift. Mr. Lynch for the trustees, the representatives of Ralph Clavering and of B. Carr, contended that the whole bequest was good, and was now available according to the intention of the donor, the late act of parliament having secured charitable donations to catholics as well as to his Majesty's protestant subjects. intention of the testatrix was clearly charitable, and looking to the cases, and to the statute law previous to the late act, he was bound to declare that this charity devolved on the crown, and that it was for the Attorney General to apply for the King's sign manual for directions as to the manner and to what purposes the funds arising from the charity should be applied. He therefore decreed the amount as prayed against the defendants, with costs. The costs of the trustees he directed to be paid out of the arrears of the rent-charge. Attorney General v. Todd, Sittings at the Rolls, February 18th, and April 10, 1837. King's Bench. [Before the Four Judges.] GRANTING RULES TO PRISONER. A person committed for contempt of Court is to be considered as in custody for a criminal act. The discretion of the marshal to grant the rules, does not extend to commitments of that nature. The prisoner must apply to the Court for the rules. This was a rule calling on Henry Gompertz and upon the marshal of the King's Bench prison, to shew cause why the said Henry Gompertz should not be deprived of the benefit of the rules, and why the marshal should not confine him within the walls of the prison. The affi Mr. Pemberton for the defendants, submitted that the gift to the priest was superstitious and void. The testatrix knew she was at-davits on which the rule was obtained, set tempting to create an illegal trust. The trustee could not be compelled to perform the trust. In this case therefore, either there was a resulting trust to the heir at law of the devisor, or the estate went free to the devisee, his heirs and assigns, and came unaltered to the purchaser, the father of the defendants. forth that Gompertz was committed into custody upon an attachment for contempt, for not putting in an answer to a bill filed against him in the Court of Equity Exchequer that he had applied to the marshal and had obtained the indulgence of the rule; and that he was now occupying two houses in the neighbourLord Langdale, M. R., having taken time to hood of the prison, and living in a style of much consider the question, now stated the matters splendor; and not only visited different parts of the information as above. The defendants, of London, but occasionally went into the by their answer, insisted that the rent-charge country; and that since he had had the rules he was not confined to the estates of Stonecroft had been down to Ascot Heath races. The and Numbush purchased by their father, but affidavits alleged, that while these indulgences extended over all the testatrix's estates. The could be enjoyed by Gompertz, he would information which was first filed in 1831, in-never comply with the order of the Court, and sisted that Lord Wedrington by the deed of purge himself of his contempt by answering. 1693, well charged these estates with payment On the other side, affidavits were filed to shew of the whole rent-charge, and exonerated that Gompertz's health required such indultherefrom the testatrix's other estates, and ac-gences; and that the marshal had only con- · cordingly the owner of the estates of Stone- ceded the rules upon being fully satisfied that Superior Courts: King's Bench. he health of Gompertz would be seriously endangered by their refusal. 11 titled to the rules. (Mr. Justice Coleridge.— Do you know what is the practice with respect to insolvents who are remanded by the Court?) The practice is not known with regard to them; but it is known with regard to prisoners committed for contempt from Courts of Equity : those Courts, if such prisoners are committed to prisons within their jurisdiction, always hold that such prisoners are not entitled to the rules. In the present case, the Lord Chief Baron stated that if he possessed any authority over the marshal of the King's Bench, he should direct Gompertz to be taken into the prison. There was an anonymous case, where the Court held that when a prisoner was in contempt, it was the duty of the gaoler to keep him a close prisoner; but the Court there declined to make an order to that effect till the gaoler should have made default in letting him have the rules. Hill v. Arnold was an authority in favor of this rule, for it shewed that the application by the prisoner must not be made to the marshal, but to the Court; and that was the result of the cases as stated in Tidd's Practiced The refusal of the Court Mr. Platt shewed cause on the part of Gompertz, and relied strongly on the alleged necessity of the case. As to the practice, he referred to the cases of Sir Watkin Lewis and Mr. John Joseph Noel, who, under similar circumstances, enjoyed the rules for years. Mr. Knowles shewed cause on behalf of the marshal. He contended, first, that the marshal had the authority to grant, at his discretion, the rules to prisoners, including those who were committed for contempt; and secondly, that in this case the discretion had been rightly exercised. The first case upon the subject was that of Landen Jones, a where it was said "he was committed for a contempt, and moved to have the benefit of the rules, which was denied." That was the whole of the report, which could not therefore be relied on as an authority, for there could be no doubt that some special reason existed for the refusal. This was shewn by a much more recent case, where it appeared that the general power to grant the rules in all cases, where a person was committed for contempt, was re-in Hill v. Arnold to proceed against the marfused; but where a special power to grant shal did not shew that the Court recognised them, under particular circumstances, was his power to grant the rules in cases of comconceded to the marshal. In Hall v. Arnold, mitments for contempt: it only shewed that it was held, that a prisoner in custody for con- in that particular case the Court held that the tempt is not entitled to the rules of the King's circumstances of necessity excused his irreguBench except in a case where he is dange- larity in exercising a power that did not berously ill, and might die through confinement. long to him. The practice in the Courts of That was exactly the present case, for the affi- Equity had been uniform since the year 1740, davits here went to the extent of saying that in which year a case occurred that was thus close confinement might occasion the pre-entered in the register's book :e" 4 June 1740, mature death of the prisoner. In that case too, the Court refused to proceed against the marshal, by ordering him to pay the money for the non-payment of which the prisoner was in contempt, and dismissed the application with costs. The Court therefore shewed its inclination to be in favor of the discretionary power of the marshal. The present was a proceeding against the marshal, quite as little justifiable as in that case, and it ought to have the same result. b Goodwin v. Baynes. Prisoner in the Fleet for non-payment of money. The prisoner had been frequently out upon rules out of term time. Ordered, by the Lord Chancellor, that he should be confined a close prisoner within the walls." It was clear that if this prisoner was thus allowed the benefit of the rules, he would never put in an answer, the contempt of the Court would never be purged, and the ends of justice would be defeated. Lord Denman, C. J.-This case has been Mr. W. H. Watson and Mr. Elderton (of the put upon the broad and important principle Chancery Bar), in support of the rule.-There that whatever indulgence may be allowed to was nothing whatever of hostility to the marshal | prisoners who do not pay their debts, and in this proceeding. It was not even intended however consistently with the security of their to be said that he had exercised his discretion persons they may be allowed to enjoy liberty improperly: the doctrine now to be contended to a certain extent, that rule of indulgence for was, that he had no discretion to exercise does not apply to criminals. The only quesin a case in which the party was committed tion, therefore, is whether this person was to for contempt. A commitment for contempt be considered a criminal. That question does was intended to be a punishment, but it could be none if the prisoner was to enjoy every possible degree of liberty. The authority of the Court would be defeated by such a practice. In one case, in re Bryant, the defendant was in custody for contempt; and there was a motion that he should be deprived of the rules, and this Court acted on the principle, that being in custody for contempt, he was not en a 2 Strange, 817. not present any doubt to my mind. It seems to me perfectly clear, that a person who is in prison in contempt, is there for criminal misconduct, and that the marshal ought not of his own authority to give such a person the indulgence of the rules. If the case makes it necessary, in order to preserve the health of such a person that he should have the indul c Barnardeston, 374. d Vol. 1, p. 373, ninth edit. 12 Superior Courts: King's Bench; K. B. Practice Court Rule absolute. In re Gompertz, E. T. 1837. King's Bench Practice Court. PAYMENT IN LIEU OF BAIL. gence of the rules, that person ought to apply marshal cannot take upon himself to remit to the Court; and such an occasion having such punishment. This rule must be absoarisen here, and having happened in term time, lute. such an application might have been made without difficulty. The case of Sir Watkin | K. B. F. J. Lewis has been mentioned. It does not appear to me, that that case at all affords an authority on the present occasion; for it does not seem that the granting of this indulgence to an unfortunate and ruined man, had ever been opposed; but if it had been, the Court must have dealt with this case as with that of others. I need not enter into the question of the particular abuse to which the allowance of the rules in this case is said to have given rise. It is sufficient to say that the prisoner here is not in a condition in which the marshal is at liberty of his own authority to grant him the indulgence of the rules. When bail are sought to be justified in order to take money out of Court, paid in under the statute, no objection exists to the justifi cation, as the right to have the money out of Court must depend on subsequent conside ration. In this case the defendant had put in bail, and when the cause came on for trial, he was desirous of calling one of the bail as a witness. Mr. Justice Littledale.—I am entirely of the In order to render him competent to give evisame opinion. The difference in the powers dence, the defendant paid in Court the sum for of the marshal, arises from the difference of which he had been held to bail. The bail bethe causes for which the prisoners are in his ing thus released, he was called and examined custody. In cases where they are so simply by the defendant. The bail, which now sought for the non-payment of debts, if the marshal to justify, had there been put in, with the obtakes care of his own indemnity, as he will beject of ultimately applying to the Court to take answerable to the creditor in the event of an the money paid in as before described out of escape, he has a right to grant the indulgence Court. of the rules; but in cases of committal for contempt of Court, the Court alone is the proper authority to decide whether such indulgence shall be permitted. The causes of committal differ entirely in their principle and object. Mr. Justice Patteson-Early in the discussion, the question seemed in my mind to resolve itself into this simple point, whether the marshal of his own authority could suffer a prisoner committed for contempt of Court to have the rules, or whether such prisoner must not apply to the Court. It is clear that in a case of that kind, the granting of the rules is matter of special favour, and they cannot be obtained but upon application to the Court, for that is not a case on which the marshal can decide of his own authority. The case of Hall v. Arnold, fully explains the difference. There the Court would not proceed against the marshal and make him pay the money; but still it is clear, that the Court considered the authority to grant the rules in cases of commitments for contempt to be in itself, and not in the marshal. The principle on which we proceed is this, that wherever a prisoner is in custody for a contempt, such as he must purge himself from by an act to be done, and not in custody for the mere payment of money, he is in custody as a criminal. Talbot now opposed the bail, on the ground, that under the circumstances, the bail were not in a situation to justify. R. V. Richards contended, in support of the bail, that whether the defendant was entitled to have the money out of Court, was a matter for future discussion, when the defendant came to make the application for that purpose. There could not be any objection to bail justifying at present. Williams, J.—I see no objectiou to the bail justifying. If the defendant has no right to receive the money out of Court, when he applies to take it out, the matter will then be settled. Bail passed.-Llewellyn's bail, E. T. 1837. K. B. P. C. AFFIDAVIT OF DEBT.-ATTORNEY AND CLIENT. Semble, that it is insufficient for the purpose of holding a defendant to bail, that the person making the affidavit of debt is the clerk of the attorney who has the management of the plaintiff's affairs. R. V. Richards moved for a rule to shew cause why the defendant in this case should not be discharged, on the ground of a defect in Mr. Justice Coleridge.-This case resolves the affidavit to hold to bail. The defect comitself at last into this short question, whether plained of was, that the person who made the under such circumstances as exist here or affidavit described himself as the clerk to the under similar circumstances, the marshal may attorney to the plaintiff in the action, without take upon himself to grant the rules, or the shewing in any way that he had any peculiar prisoner must apply to the Court for them. knowledge which could give him any means of This question is to be answered by considering knowing the pecuniary claims of his master's the nature of the confinement. The ordinary client. His master, perhaps, might be able to custody is at the suit of a creditor, to enforce make such an affidavit, as from his peculiar payment of his debt: the other cases of cus-connection with his client, it might be pretody partake of the nature of a punishment sumed that he could be aware of his client's affor a criminal act, and where that is so, the fairs; or the clerk possibly might make such |