difficulty immaterial, and I need not say that the united opinion of his Honor and the Lord Justice is very probably correct.-Appeal dismissed without costs. Note for reference-1 Jarm, Wills, 657, note (ƒ), 2nd ed.

ROLLS COURT.

BANNISTER v. BIGGES.-Jan. 31.

Injunction-Nuisance-Rifle range.

The Court granted an injunction to restrain the further use of a rifle range, which had been certified by the War Office, until the same should have been rendered free from danger to the plaintiff, his family, and workmen. Motion for an injunction.-The bill prayed that the defendants, the lessees of a rifle range at Willesden, might be restrained from using it, or permitting it to be used for that purpose, until it should have been rendered perfectly safe and free from danger to the plaintiff, his family, and workmen.

The range was laid out and the butts were erected in the early part of 1861. The sanction of the War Office was obtained, and ball practice was commenced in June, 1861, and was continued without interruption till shortly before this bill was filed in December, 1864. The butts were placed at the foot of a slight hill, at the top of which a look out was stationed, whose duty it was to stop the firing by a signal whenever anybody passed within the line of the firing.

The plaintiff, who was a cowkeeper, at Christmas 1863 became tenant of the Manor Farm for a term of years. It consisted of 104 acres of pasture land, and lay in the rear of the butts. The nearest field was more than 400 yards distant from the hill, upon which stood the flagstaff and look-out station, and a road to Willesden Green intervened. The plaintiff, who had about 220 cows on his farm, first occupied it in June, 1864. In July a bullet struck the brickwork of his house, about a foot from a window which a woman was cleaning. A cow also was hit by one of the bullets. Many bullets had been picked up in the plaintiff's fields, some of them within a short distance of his residence. No complaints had ever been made by any previous occupier of the farm; nor did the plaintiff make any complaint until the 12th November, when his solicitor wrote to require the use of the butts to be discontinued. The firing was consequently stopped; and, at the suggestion of Colonel Morris, the assistant inspector of volunteers, the defendants intended to raise the butts ten feet, and make other alterations to remedy the evil complained of. It was contended by the defendants, that when these alterations were completed the range would be practically safe. The range had always been closed for six weeks during the hay harvest, and all the precautions required by the War Office had been uniformly adopted.

Southgate, Q. C., and Haynes, for the plaintiff. Selwyn, Q. C., and Ware, for the defendants.-The plaintiff could not stand in a better position than his landlord, or the former occupiers of the farm, and he could not now, after so long a delay, obtain an injunction. Every precaution had been taken to prevent an accident, and there was not a rifle range in the country which might not be stopped, if the Court granted this injunction. The military officer specially appointed for the purpose had approved of the range, and this Court would not interpose to reverse his decision.

Sir J. ROMILLY, M. R.-I have no doubt that the plaintiff is entitled to an injunction.

The case has been argued as if I were asked to stop altogether the use of the butts, which is not at all my

intention to do. I believe, and it is obvious the witnesses for the defendants believe, that this butt can be rendered free from all danger to the plaintiff, his family, and workmen, and I am of opinion that the defendants are bound to make it free from all danger accordingly; and the only effect of my injunction will be to restrain the use of the range until it shall have been made free from all danger to the plaintiff, his family, and workmen.

It is impossible to say that a case of acquiescence has been made out. It is true, that the firing has been going on for three or four years before the plaintiff came to the farm. I think he first occupied the about the effect of the firing, but he assumed that farm in June, 1864; at that time he knew nothing it was free from danger. He finds, however, that one of his cows is injured; then, that a ball strikes the house within twelve inches of the place where a woman was engaged cleaning the windows; that another ball was seen by a boy to enter the ground; and that upwards of fifty bullets were picked up on one of the plaintiff's fields. It is impossible, under these circumstances, to say that the range is safe; and it is also quite clear that it can be made safe, Whether the defendants have since made it so or not, I do not know; but if they have done so, they will not violate this injunction by going on with the firing; if they have not, they must make it safe, in compliance with the terms of my injunction. The plaintiff first applies to the parties upon the subject in November; not getting a satisfactory answer, he files his bill in December; and an injunction is now moved for upon notice. I am of opinion that the plaintiff is entitled to the injunction which he asks; and if, in point of fact, proper means have been taken to make the range safe, then my injunction will not do the defendants any harm at all. The prayer of the bill contains some words which are a little obscure. I do not know what is meant by the words " 'perfectly safe." I believe they amount to nothing, but I prefer to leave them out; and I will grant an injunction in the words of the first paragraph of the prayer of the bill, omitting those words. The order will then run in this way"until the same shall have been rendered free from danger to the plaintiff, his family, and workmen."

Note for reference-Story's Eq., s. 925-6.

THOMPSON v. SMITH.-Feb. 11 and 13.

Ne exeat regno-Untaken accounts. For the Court to grant a writ of ne exeat regno, there must be the most distinct evidence of a debt due to the plaintiff. Mere belief on the part of the plaintiff, that if the accounts were taken a certain balance would be found due to him, is not sufficient.

This was an application for a writ of ne exeat regno.

Matthew Smith, deceased, gave his personal estate to his sons, George Smith and Thomas Smith, and the plaintiff, upon trust to carry on his business of a stone merchant until his youngest child attained twentyone.

The testator died in 1853, and from that time up to 1855 the business was carried on by his two sons, George and Thomas. George Smith died in 1855; and after his death the business was carried on by Thomas Smith alone. Thomas Smith died in 1864.

During the last illness of Thomas Smith, the defendant, another son of the testator, acted for him in the management of the business; and on Thomas Smith's death the defendant took upon himself, with the permission of the plaintiff, who had never personally interfered, the whole management of the business,

action, the whole thing is bad, unless it can be proved, not merely that the child knew what the transaction was, but that she was in no respect influenced by the peculiar relation in which they stood to each other. Here the whole evidence shews that the plaintiff was influenced. Neither can I regard the deed itself as other than a very improper one, because, if I understand the transaction rightly, if the deed were to stand, nothing would be more easy than for the mother to put the whole of this money into her own pocket, to the exclusion of all the children of the marriage. She has a power of exclusive appointment, under the settlement, in favour of any child who attains twentyone; and she might appoint it all to her daughter, and then, under this deed, take the whole of the property. It is true, that since this suit has been instituted (and this has probably been occasioned by the feelings which the suit has engendered) she has appointed the property to the two brothers of the plaintiff, who are both of them under age, and who, unless they attain twenty-one years, will not be able to take the property.

In another respect, also, I am of opinion that the deed is bad, as being a fraud on the marital rights. I think the principle laid down in Goddard v. Snow (1 Russ. 490) by Sir J. Leach is perfectly correct; and in Taylor v. Pugh (1 Hare, 608), Sir J. Wigram, who took extraordinary pains with his judgments, and investigated the principles of equity in a more searching manner than has been usual with most judges, certainly since the time of Sir W. Grant, says, "I take the rule of the Court to be correctly stated in Mr. Roper's Treatise. Deception will be inferred, if, after the commencement of the treaty for marriage, the wife should attempt to make any disposition of her property without her intended husband's knowledge or concurrence." He states his agreement with that, which I apprehend to be the real principle, which affects all these cases. There is the strongest evidence of concealment from the husband. The mother, Mrs. Crabbe, herself says, "With respect to the thirtysecond paragraph of my answer, the suggestion to keep the assignment secret came from me. I told my daughter that Mr. Chambers had nothing to do with it, as he had made no settlement. I told her there was no necessity to mention it to her husband." In other words, concurring with Mrs. Chambers's statement, when she says that she was told to conceal it. In every way, I am of opinion that the deed is bad, and that it must be delivered up to be cancelled. Note for reference-2 Rop. Leg. 162.

VICE-CHANCELLOR KINDERSLEY'S COURT. WEBB v. WARDLE.-Feb. 25. Practice Death of co-defendant-Revivor. The personal representative of a deceased defendant cannot be brought before the Court by amendment only. This was a motion that the plaintiff's amended bill and the interrogatories filed for the examination of the defendant Mary Wardle, should be taken off the file for irregularity.

The bill was filed by a cestui que trust under the will of Thomas Edwards, against Thomas Wardle and Mary Ashford, the representatives of the trustees and executors of his will, for the administration of his real and personal estate, praying for accounts, and charging divers breaches of trust on the part of the deceased trustees.

After the filing of the bill, Thomas Wardle, one of the two defendants, died, and the plaintiff amended

his bill, by making Mary Wardle the personal representative of Thomas Wardle, co-defendant with Mrs. Ashford.

B. B. Rogers now moved, as above mentioned, on behalf of Mary Wardle, and contended that where an accounting defendant dies, the suit abates, so that no further proceedings can be taken in the suit. The motion is right, although Mrs. Wardle is not the sole defendant. (Drake v. Symes, 2 De G., F., & J. 81). The present is, however, a stronger case than that, because there the interrogatories were good as regarded some of the defendants. I rely upon the substantial grievance that we cannot use the evidence.

Baily, Q. C., and Welford, for the plaintiff.-There has been no evidence. Thomas Ashford died on the 10th April, 1864, and the summons for the order for amendment was taken out on the 25th November, the solicitors of Mr. Wardle being present when the order was made. The interrogatories for the examination of Mrs. Wardle were filed on the 27th December, and the other side are out of time.

Phear, for the defendant Mary Ashford, asked for his costs.

Sir R. T. KINDERSLEY, V. C.-The matter may appear a mere technicality, but if you want to bring before the Court the representative of a deceased defendant, it is a thing unheard of, and contrary to the whole course of practice in this court, that you should do so by amendment instead of revivor. I think Mrs. Wardle is entitled to what she asks, and that she has not by her delay deprived herself of her right, as she has taken no step, and there is nothing special brought against her. Then the only question seems to be, what is to be done as to the costs of the other defendant? I think Mrs. Wardle was right in serving the other defendant; and I do not see how she could make the motion in her absence. It appears to me, therefore, that the plaintiff must pay the costs of Mrs. Wardle, Mrs. Wardle adding to her costs those of the other defendant. The Court ought not to allow a practice to creep in of doing by amendment that which ought to be done by revivor and supplement.

Note for reference-Morg. Ch. Pr. 215.

WEEKS v. STOURTON.-Feb. 27 and 28.
Practice-Foreclosure-Affidavits of documents.

If the mortgagor, intending to redeem under the usual decree in a foreclosure suit, requires an affidavit of the documents to be delivered to him, he should give previous notice to that effect to the mortgagor.

Where a mortgagor had not given such notice, and the mortgagee was not prepared with such affidavit, a new day and place for payment was fixed on an application by summons in chambers.

Adjourned summons.-In a suit by an equitable mortgagee for foreclosure, an order had been made for payment of the mortgage debt and costs upon a fixed day and hour at the Rolls Chapel; that the plaintiff should deliver up to the defendant his "security, and all documents in his custody or power relating thereto, upon oath," and in default of payment, for a sale of the mortgaged property. The solici tors of both mortgagee and mortgagor attended at the time and place fixed, when the mortgagor's soliciter inquired whether the mortgagee in person was present, and being answered in the negative, said that he could not pay over the money, which was ready, without the production of a power of attorney from the mortgagee and an affidavit of documents. The mortgagor's solicitor was prepared with the power of attorney, but refused to give any affidavit of documents, as there were no documents other than the memeral

8

dum of deposit. The mortgagor's solicitor then declined to pay over the money without an affidavit of documents; and the plaintiff subsequently took out a summons to obtain an order for a sale, or for another day to be fixed for payment. This summons was now adjourned into court.

Glasse, Q. C., and Hemings, for the plaintiff.-The mortgagor ought to have paid the money first, after which he could, if he wished it, have at his own expense an affidavit of documents. [They referred to Hughes v. Williams (1 Kay, App. iv).]

Baily, Q. C., and Horsey, for the defendant. Osborne, Q. C., and F. Webb, for the trustees of the defendant's marriage settlement.-The defendant was entitled to an affidavit of documents at the time and place of payment; the plaintiff not having in that respect complied with the order, the order is gone, and he must obtain a new foreclosure decree unless he applies to the Court by special motion. [They cited Gurney v. Jackson (1 Sm. & G., App. xxvi).] Glasse, Q. C., in reply.

Sir R. T. KINDERSLEY, V. C.-Upon the abstract question of what ought to be the manner of payment and of delivering of the documents, when a mortgage is paid off under the order of the Court, and, without speaking of what the actual practice is, no doubt the party who pays is not under an obligation to do so without simultaneously receiving the documents, whatever they are; although, perhaps, the placing of the money in the hands of the mortgagee should have a momentary precedence.

But in ninety-nine cases out of a hundred the parties never raise a question so absurd as the present; and it appears that out of seventy cases, in which payment was ordered to be made at the Rolls Chapel, in only four was the transaction completed in that precise manner; the solicitors engaged commonly arranging the matter otherwise.

In the present case we have the common decree, directing and fixing the time and place, and delivery up on oath of the security and all documents, &c., and in default, that the premises should be sold. Now, on consulting gentlemen accustomed to these matters, they state that they never knew an instance where the affidavit question has arisen; still it is usual to have one, and no doubt the mortgagor can require it, but it must be at his own expense, the costs of such affidavit not being included in the bill of costs, which is taxed before the certificate. But if the mortgagor does require it, he should give the mortgagee notice, and then when the costs are taxed prospectively, the costs of the affidavit will be included, and certified as unpaid. I do not say that notice must necessarily be given, but it would be very convenient. In most cases the affidavit would not be required, and, therefore, there being no rule at present, I shall not lay down any. In this case the day is gone, and default has been made (I do not say whose default); and then comes in the provision made by the decree for sale; but as, under these circumstances, neither party is particularly to blame, no sale can be directed. There is still a readiness to pay, and the summons is right, and as binding as if the order had been made in court. I must repeat what I have said over and over again, that any party has a right, at any stage of proceedings in chambers, to require the matter to be brought before the judge personally. In the present case it is manifest, that the memorandum and certificate of the married lady are all the documents there can be. The real question is, whether either party is so wrong that he ought to pay any part of these costs. There being no fixed rule, and there being a miscarriage common to both parties, I think there ought to be no costs, the adjournment

VICE-CHANCELLOR WOOD'S COURT.

Re THE ISLE OF WIGHT FERRY COMPANY.-Feb. 20. Judgment- Execution creditor-Sale-27 & 28 Vict. c. 112. Stat. 27 & 28 Vict. 112, applies only to future judgments; and therefore a creditor, to whom land has been delivered in execution under a judgment obtained before the passing of the act, is not entitled to apply to the Court for a summary order for sale.

This was a petition by judgment creditors for an order, under the 27 & 28 Vict. c. 112, s. 4, for the sale of land delivered to them in execution.

The Isle of Wight Ferry Company was duly incorporated, and empowered to hold lands, by the Isle of Wight Ferry Act, 1856.

On the 9th March, 1864, the petitioners Richard Henry Wyatt and Arthur Metcalfe recovered judgment against the company for the sum of 12077. 16s. 1d.; and on the same day, Richard Henry Wyatt alone also recovered judgment against the company for the sum of 1338l. 168. 8d.

Both judgments were duly registered, and on the 28th January, 1865, a writ of elegit was issued under each of them. These writs were also duly registered, and placed in the hands of the sheriff of Hampshire for execution. He delivered certain of the lands and hereditaments of the company, specially mentioned in the petition, in execution to both the petitioners under one writ; and, under the other, he delivered the same lands and hereditaments to Richard Henry Wyatt, subject to the interest of himself and Arthur Metcalfe under the former writ.

The petition stated, that it was found by the inquisitions taken by the sheriff, that the company were seised in fee of the lands and hereditaments delivered in execution, subject to the judgments so entered up, and other incumbrances, but that notices had been given to the petitioners, that certain parts of the premises were claimed by other persons, and that applications would be made to quash the inquisition as to those parts.

The petitioners prayed for an inquiry, what other incumbrances affected the premises, and as to their priorities, and for all other proper inquiries; and also, that the lands and hereditaments might be sold, under the direction of the Court, and the proceeds applied in payment of the judgment debts and the sheriff's fees, and all other costs, charges, and expenses of enforcing the judgments, and of and incident to the application.

Rolt, Q. C., and Kay, for the petitioners.-The 27 & 28 Vict. c. 112, authorises the granting of this application, as the words "such judgment," in the 4th section, refer to the word "judgment" in the 2nd section, which would include any judgment. The 4th section is an enabling one, and ought to have the widest possible construction."

Daniel, Q. C., and Bedwell, for the company.-This is an attempt by a summary proceeding to obtain the same advantage as by a bill. The act only applies to future judgments.

Rolt, Q. C., in reply.

Sir W. P. WOOD, V. C.-It appears to me to be plain what is the right construction to be put upon this statute, We find an interpretation clause, explaining