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91; (xxviii.) 124; Partition
130; Probate, 31, 67, 102, 134 Winding up, see Company (iii..
xx.) 10-12; (xxvii. xxxiv.) 51,
131 Withdrawal of Appeal, see Prac. tice (cix.)
Withdrawal of Defence,
Practice (iv., viii.) 26; (clxvii.) 131 Witness, see Bankruptcy (viii.) 4;
Defamation (v.) 88 : Evidence
90 Woman Past Child-bearing, see Settlement (xiv.)
105 Woodlands, see Poor Law (v.) 61 Workman, see Master and Ser. vant (ii.)
58 Writ of Summons, see Practice
Law Reports, Law Journal Reports, Law Times
Reports, and Weekly Reporter,
FOR AUGUST, SEPTEMBER, AND
AND OCTOBER, 1880.*
By Henry M. Keary, of Lincoln's Inn, Barrister-at-Law.
Administration:(i.) Ch. Div. V. C. H.-Costs of Probate Action-Legacy Paid into Court
-Set-off.—Legatees who had brought an action against an executrix, who was residuary legatee, to set aside probate, were ordered to pay the executrix her costs of action. The executrix having paid into Court in an administration action the legacies, afterwards obtained a charging order against the share of one of the legatees in' respect of her costs. The shares of the legatees had been assigned or incumbered : Held that the executrix was entitled to be paid the costs of the probate action out of the shares of the legatees in priority to incombrancers.—Knapman v.
Wreford, 43 L.T. 25. (ii.) Ch. Div. F. J.-Executor-Assent to Legacy-Debt of Legatee.
Executors who have appropriated assets to meet a legacy cannot retain or impound any part of the appropriated assets to meet a debt due from the legatee to the general estate of the testator.-Bullard v. Marsden,
49 L.J. Ch. 614; 28 W.R. 914. (ii.) Ch. Div. M. R.-Intestacy-Inquiry as to Advances-Form of Order
-22 & 23 Car. II., c. 10, s. 5.—In administering the estate of an intestate the inquiry as to advances should follow the words of sec. 5 of the
Statute of Distributions.-Waterton v. Ennis, 28 W.R. 885. (iv.) Ch. Diy. M. R.-Intestacy–Next-of-Kin—Legitimacy-Domicil.— The
words “brothers' and sisters' children," in the Statute of Distributions, mean children legitimate according to English law.-Re Goodman's
Trusts, L.R. 14 Ch. D. 619; 43 L.T. 14; 28 W.R. 902. (v.) Ch. Div. V.C.M.-Intestacy-Next-of-Kin Found-Right to Interest.
When money of an estate has been paid to the Solicitor of the Treasury in default of next-of-kin, and afterwards an applicant establishes his
* Cases reported only in the Law Times Reports or Weekly Reporter for October 30th, are postponed till the February Digest.
right to the money as a next-of-kin, he is entitled to interest on the balances from time to time in the hands of the Crown.-Re Gosman, 49
L.J. Ch. 590; 42 L.T. 804. (vi.) C. P. Div.-Judgment Creditor:- Priority-Judicature Act, 1875,
s. 10.—The priority of a judgment creditor over simple contract creditors in the administration of assets under an administration decree is not affected by sec. 10 of the Judicature Act, 1875.--Smith v. Morgan,
L.R. 5 C.P.D. 337. Agreements and Contracts ::(i.) Ch. Div. F. J.-Agreement to withdraw from Prosecution-Public
Policy.-An agreement to withdraw from a prosecution for any felony or any misdemeanour of a public nature, with a view to private benefit is bad ; and where a party had deposited deeds to secure the carrying out of such an agreement, he was held entitled to have them returned.
Whitmore v. Farley, 43 L.T. 192; 28 W.R. 908. (ii.) C. A.-Foreign Loan-Failure of Object of Loan-Right of Majority of
Bondholders.--A foreign loan having been raised on bonds with the express object of subsidising a company to construct certain railway and other works, and with a provision that £600,000 of the loan should be placed in the hands of trustees to be applied from time to time in pay. ment for the works : an action was brought by the majority of the bondholders claiming a return of the £600,000. The Court being of opinion that the carrying out of the works had become impossible : Held that the majority of the bondholders had a right, in spite of the dissent of a minority, to insist on a return of the £600,000.
National Bolivian Navigation Co. v. Wilson, 43 L.T. 60. (iii.) H. L. – Guarantee against Loss by Embezzlement - Prosecution
Condition Precedent.-A company agreed to reimburse F. any pecuniary loss ap to £1000, which might arise from any such fraud or dishonesty of A., in his employment by F., as should amount to embezzlement, and it was provided that the employer should, if and when required by the company, prosecute the employed to conviction for any fraud or dis. honesty in consequence of which a claim should be made on the company : Held that the prosecution of A. for embezzlement was a condition precedent to F.'s right of action against the company. - London
Guarantee Co. v. Fearnley, 28 W.R. 893. (iv.) C. P. Div.-Infant-Promise of Marriage—Ratification-37 & 38 Vict.,
c. 62.-In 1875 plaintiff and defendant agreed to marry : being then infants. After they both came of age defendant asked plaintiff to fix the wedding day, which she did, and he assented : Held that there was a fresh promise made after defendant came of age, and upon good con.
sideration.—Ditcham v. Worrall, L.R. 5 C.P.D. 410; 49 L.J. C.P. 688. (v.) Ch. Div. V. C. M.-Promise to leave by Will— Marriage on Faith
of Promise.-B. wrote a letter to A. to the effect that a settlement pro. posed by A. to be made on his marriage with B.'s daughter, was satisfactory, and that he had by his will settled his money equally on his daughters. A. married B.'s daughter, but never made a settlement, and his wife died leaving children. B. died subsequently, having made a fresh will by which he left all his property to another daughter: Held that there was no contract by B. to leave anything to A.'s wife which
A. could enforce.-Hinks v. Allen, 49 L.J. Ch. 553. (vi.) Ch. Div. V. C. M.—Release-Construction-Knowledge of Parties.
A release will not be construed to apply to circumstances which could not have been within the knowledge of the parties at the time it was executed.—Turner v. Turner, L.R. 14 Ch. D. 829; 28 W.R. 859.
(vii.) Ex. Div.- Representation Influencing Conduct-Mutuality-Interest in
Lands-Statute of Frauds, s. 4.-Defendant was induced to serve an intestate as his housekeeper without wages for many years, by his promise to leave her a life estate in his farm : Held that this amounted to a contract based on good consideration, that sec. 4 of the Statute of Frauds did not apply as defendant had performed her part of the contract, and that she was entitled to hold the farın against the heir-at
law.-Alderson v. Maddison, L.R. 5 Ex. D. 293. (viii.) C. A.-Sale in Consideration of Payment of Debts-Insolvency-Breach
-Damages. -A firm of traders sold their business to defendant on condition that he should pay certain of their debts. He failed to do so and left a balance of £1,750 unpaid. The firm having liquidated their affairs, the trustee brought an action against defendant for breach of contract: Held that the trustee was entitled to recover £1,750.
Ashdown v. Ingamells, L.R. 5 Ex. D. 280. (ix.) Q. B. Div.-Sale of Goods-Offer— Refusal.-Defendant wrote from
London to plaintiff at Middlesborough, offering to sell him some iron at 40s. a ton, and stating that he would hold the offer open till Monday. On Monday morning plaintiff telegraphed, asking defendant to reply by telegraph, whether he would accept 40s. a ton for delivery over two months, or what other limit he would give. Defendant did not reply, but gold the iron to another purchaser, and telegraphed to plaintiff that he had done so. Plaintiff in the meantime had sent a second telegram to say that he would accept defendant's original offer: Held that defendant's offer was still open when plaintiff accepted it.—Stevenson
v. McLean, 49 L.J. Q.B. 701 ; 42 L.T. 897 ; 28 W.R. 916. (x.) Ch. Div. M. R.-Sale of Business-Trade Name-Goodwill.-On the
sale of business and goodwill it was agreed that the purchaser might use the name of the vendors for two years. At the end of the two years the vendors recommenced business under a name similar to that of the old firm, and solicited their former customers': Held that they must be restrained from soliciting or dealing with their former customers.
Ginisi v. Cooper S Co., L.R. 14 Ch. Ď. 596 ; 49 L.J. Ch. 601. (xi.) C. P. Div.-Withdrawal of Offer—Letter sent by Post-Continued
Breach-Waiver.-In order that the withdrawal of an offer may be effectual, it must be communicated before the offer is accepted, and if communicated by post, the withdrawal takes effect when the letter con. taining it is received. If there is a continued refusal to perform a contract, the neglect of the other party to treat the first refusal as a breach will not prevent his suing for a breach.-Byrne v. Van Tienhoven, L.R. 5 C.P.D. 344.
Arbitration :(i.) C. A.-Award made Rule of Court.-Though in cases of agreement for
arbitration the submission ought to be made a rule of Court, yet where the reference to arbitration has been made by the Court, and the award has been made an Order of Court, it is as binding as any other Order.
Jones v. Jones, L.R. 14 Ch. D. 593; 43 L.T. 76. (i.) C. A.–Submission made Rule of Court.-An application to make a sub
mission to arbitration a rule of Court should be made ex parte by summons.—Re Davey and Railway Passengers Assurance Co., 49 L.J. Ch. 568.
Bankruptcy:(i.) C. A.--Act of Bankruptcy-Debtor's Summons-Proof of Service.-On a bankruptcy petition by a creditor, founded on a failure by the debtors