Page images

The spirit of this decision is entitled to commendation, but the evils which are necessarily incident to the popular election of judges are far beyond the reach of the power of courts.


RATE OF INTEREST AFTER THE TIME FIXED FOR PAYMENT. — In the recent case of Cook v. Fowler, L. R. 7 H. L. 27, the question was raised, what rate of interest was to be allowed for money after the day when it had become payable, under a contract for its payment at a fixed time with interest at a certain rate; and the judgments contain satisfactory statements of the principles upon which interest is allowed in such cases. William Bevan being indebted to Cook, on the 2d of May, 1864, gave him a warrant of attorney to secure payment of £1330, with interest at 5 per cent per month, on the 2d of the following month. On the 25th of the same May Bevan died, and a suit was instituted in Chancery for the administration of his estate. Cook came in as a creditor, and in 1867 claimed the principal sum due under the warrant, with interest at 60 per cent. per annum. An order having been made allowing interest at 5 per cent. for the first month, and at 4 per cent. per annum afterwards, Cook appealed; and it was contended on his behalf that he was entitled to the rate of interest fixed by the contract, until the money was paid. The House of Lords affirmed the order appealed from; and the rule was clearly and concisely expressed by LORD SELBORNE as follows :

"Unless it can be laid down as a general rule of law that upon a contract for the payment of money borrowed for a fixed period, on a day certain, with interest at a certain rate down to that day, a farther contract for the continuance of the same rate of interest after that day, until actual payment, is to be implied, the decision of the Vice-Chancellor in this case is not erroneous.

“I entirely agreed with those of your Lordships who have preceded me that no such contract is to be implied, unless there is something to justify it, upon the construction of the words of the particular instrument; and that, although in cases of this class interest for the delay of payment post diem ought to be given, it is on the principle not of implied contract, but of damages for a breach of contract. The rate of interest to which the parties have agreed during the term of their contract may well be adopted in an ordinary case of this kind by a Court or jury, as a proper measure of damages for the subsequent delay; but that is because, ordinarily, a reasonable and usual rate of interest, which it may be presumed would have been the same whatever might be the duration of the loan, has been agreed to. But in the case before your Lordships the agreed rate of interest is excessive and extraordinary ; and although no question is raised between the present parties as to its fairness or reasonableness, so far as it was matter of express contract, it by no means follows that it would have been fair and reasonable, or would have been so regarded by the borrower, if it had been indefinitely extended to every possible delay of payment after the stipulated time. In my opinion no Court or judge could, under the particular circumstances of this case, have adopted that rate of interest as a proper measure of damages, without a very great miscarriage of justice."

It appears to be the result of all the previous cases that where there is an express contract to pay interest up to a given day, interest after that day is

given by the jury as damages for the detention of the debt, and not as interest. Price v. Great Western Ry. Co., 16 M. & W. 244; Keene v. Keene, 3 C. B. N. S. 144.

STATUTE OF FRAUDS. GOODS DESTROYED BEFORE COMPLIANCE WITH THE STATUTE. An interesting question has been determined by the Queen's Bench in The Leather Cloth Company v. Hieronimus, 32 Law Times Rep. N. S. 307, in which an oral order had been given for goods, and a letter recognizing it and written after the goods had been destroyed while on their way to the purchaser, was held sufficient to satisfy the Statute of Frauds. The defendant, Hieronimus, gave an oral order to the plaintiffs for three cases of leather cloth to be sent to him at Cologne by way of Ostend. The plaintiffs proceeded to execute the order, but for certain reasons sent the goods by way of Rotterdam, and at the same time wrote a letter to the defendant containing an invoice and explaining the reason for the change in the route. The defendant received this letter, but did not reply. The goods were lost on the voyage to Rotterdam. The plaintiffs, three or four months afterwards, sent the defendant a statement of account, including the three cases of leather cloth, and asked for payment. The defendant then wrote to the plaintiffs two letters, in which he referred to and admitted the order for the goods, but complained that the goods had been shipped by way of Rotterdam, and on this ground declined responsibility for them. In an action for the price the plaintiffs obtained a verdict, the jury having found that the defendant by his silence had assented to the change in the route; and the Court held that the letters written by the defendant completely satisfied the Statute of Frauds, and that the substitution of one route for the other need not be in writing.

TESTATOR'S KNOWLEDGE OF CONTENTS OF WILL. READING OVER. The testamentary suit of Fulton v. Andrew, lately determined in the House of Lords, and reported 32 Law Times Rep. N. S. 209, illustrates the importance not only of reading over a will to a testator, but also of explaining to him and having him fully understand the effect of any clauses which are for the benefit of the persons who prepare the will. By the will of Hugh Harrison, who died in July, 1870, the residue of his property was given entirely to the respondents, Andrew and Wilson, and they were appointed executors. The validity of the will was contested by the nephew and nieces of the testator, and six issues were directed to be tried before a jury. Upon these issues the jury found that the will was duly executed; that the testator was of sound mind, memory, and understanding; that the execution of the will was not obtained by the undue influence of the respondents; that its execution, so far as it related to the residuary clause, was not obtained by their undue influence; that the testator knew and approved of the contents of the will with the exception of the residuary clause; but that, as to the residuary clause he did not know and approve of its contents. The Judge of the Probate Court, notwithstanding the last finding, granted probate of the whole will, including the residuary clause. From this decision an appeal was brought to the House of Lords, which reversed the order granting probate, and remitted the

cause to the Court of Probate to do what was right with regard to qualified probate of the will.

The following are parts of the judgment of the LORD CHANCELLOR (LORD CAIRNS) :

“It is said that it has been established by certain cases, to which I will presently refer, that in judging of the validity of a will, if you find that the testator was of sound mind, memory, and understanding, and if you find further that the will was read over to him, or read over by him, there is an end of the case; that you must at once assume that he was aware of the contents of the will, and that there is a positive and unyielding rule of law, that no evidence against that presumption can be received. My Lords, I should in this case, as indeed in all other cases, greatly deprecate the introduction or creation of fixed and unyielding rules of law which are not imposed by Act of Parliament. I think it would be greatly to be deprecated that any positive rule as to dealing with a question of fact should be laid down, and laid down now for the first time, unless the Legislature has imposed that rule in the shape of an Act of Parliament. But now let us see what is the authority for the imposition of such a fixed and unyielding rule of law. Before looking at the two cases which were cited I will take the liberty of reminding your Lordships of the law which has been laid down in general terms as to the mode of dealing with testamentary instruments like the present, where persons who are strangers to the testator, and who themselves have obtained or conducted the making of the will, are the persons benefiting by it. In the well-known case of Barry v. Butlin, 2 Moo. P. C. C. 482, Parke, B., delivering the opinion of the Judicial Committee, said this : •The rules of law according to which cases of this nature are to be decided, do not admit of any dispute so far as they are necessary to the determination of the present appeal; and they have been acquiesced in on both sides. These rules are two: the first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. These principles, to the extent that I have stated, are well established. The former is undisputed; the latter is laid down by Sir John Nicholl in substance in Paske v. Ollatt, 2 Phillim. 323, Ingram v. Wyatt, 1 Hag. Ec. 388, and Billinghurst v. Vickers, 1 Phillim. 187, and is stated by that very learned and experienced judge to have been handed down to him by his predecessors, and this tribunal has sanctioned and acted upon it in a recent case.' That recent case was the case of Baker v. Batt, 2 Moo. P. C. C. 317."

The Lord Chancellor then referred to the directions given to the jury in Atter v. Atkinson, L. R. 1 P. & D. 665, and proceeded:

“In the first place, the jury must be satisfied that the will was read over; and, in the second place, they must also be satisfied that there was no fraud in the case. Now, applying these observations to the present case, I will ask your Lordships to observe that we have no means of knowing what was the view which the jury in the present case took with regard to the reading over of the will. The only witnesses upon the subject were those persons who themselves were propounding the will. No person else was present, no person else knew any thing upon the subject.

It appears that those witnesses stated either that the will was read over to the testator, or that it had been left with him overnight for the purpose of being read over. The jury may have believed that statement. It by no means follows that the jury thought, even if there had been some reading of the will, that that reading had taken place in such a way as to convey to the mind of the testator a due appreciation of the contents and effect of the residuary clause. And it may well be that the jury, finding the clearest expression of the intention of the testator in the instructions for the will, were not satisfied that there was any such proper reading and explanation of the will as would apprise the testator of the change, if there was a change, between the instructions and the will. But, moreover, how does the qualification that there must be no fraud bear upon the present case? It is very difficult to define the various grades or shades of fraud; but it is a very important qualification to engraft upon the general state of things, that the reading over of a will by a competent testator must be taken to have apprised him of the contents. If your Lordships find a case in which persons who are strangers to the testator, who have no claim upon his bounty, have themselves prepared for their own benefit a will disposing in their favor of a large portion of the property of the testator; and if you submit that case to & jury, it may well be that the jury may consider that there was a want, on the part of those who propounded the will, of the execution of the duty which lay upon them, to bring home to the mind of the testator the effect of his testamentary act; and that that failure in performing the duty which lay upon them amounted to a greater or less degree of fraud upon their part.”

The other case referred to and explained was Guardhouse v. Blackburn, L. R. 1 P. & D. 109.

THE BENCH. - Sir Gillery Pigott, one of the Barons of the Court of Exchequer, died on the 28th of April, from the effects of injuries received by a fall from his horse.

Mr. Justice Huddleston has been transferred from the Common Pleas to the Exchequer, to fill the vacancy caused by the death of Baron Pigott.

Mr. Lindley, Q. C., of the Chancery Bar, the author of Lindley on Partnership, has been raised to the bench of the Common Pleas.


ACCESSORY. - Reg. v. Taylor. Two men quarrelled, and in consequence agreed to fight with their fists. In order to bind each other to fight, each put down a sum of £1, so that £2 might be paid to the winner; and the money was deposited with a third, named Taylor, as stakeholder, and he consented to hold it as such until after the fight, and then to pay it to the winner. There was nothing then, or at any time before the fight, to lead any one reasonably to suppose, and Taylor did not suppose,

that the fight would endanger the life of either of the combatants. One of them received such injuries in the fight that he afterwards dicd. Taylor was not present at the fight, but on being told who won, and without knowing the danger of the other, he paid over the money to the winner. Taylor was indicted as an accessory before the fact to the manslaughter, and was convicted. The Court of Criminal Appeal held that he was not an accessory, and quashed the conviction. The LORD CHIEF JUSTICE (COCKBURN) said:

“I am of opinion that the conviction cannot be supported. The defendant was indicted for being an accessory before the fact to the manslaughter of one Dulgar.

It appeared that Dulgar fought with a person named Tubbs, and received such injuries that he afterwards died from them. The prisoner was not present at the fight; and all that he did was that he agreed to act as stakeholder, and received one sover. eign from each of the combatants, and consented to hold the two sovereigns until after the fight, and then to pay them to the winner. In order to render the defendant liable to the charge, there must be some active proceeding on his part; he must procure them to fight, or encourage them to do so. In this case the defendant was perfectly passive, and it is enough to say that there is nothing to show such a participation in the fight on the part of the defendant as to make him an accessory before the fact to the manslaughter under the circumstances."

« PreviousContinue »