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and one trustee was willing to sell, but the other refused to concur : Held that the Court would not interfere with the trustee's discretion. Marquis Camden v. Murray, 29 W.R. 190.
Vendor and Purchaser :(xi.) Ch. Div. F.J.-Conditions of Sale-Suggestiv Falsi-Suppressio Veri.
Conditions of sale of freeholds, provided that the title should commence with a document dated 27th December, 1861, which could be seen at the solicitor's office, and that the purchaser should assume that B. (vendor's predecessor in title) by the said document, and by his undisturbed possession, was, at the time of his death, seized in fee of the property. It appeared from the document that the vendor might have nothing more than a primâ facie possessory title: Held that the condition amounted neither to a suggestio falsi nor a suppressio veri.- Blenkhorn v. Penrose,
29 W.R. 237. (xii.) Ch. Div. D. J.-Conditions of Sale-Possession. The conditions of
sale of a piece of land, provided that the purchaser should be entitled to the possession or the receipt of the rents and profits from a certain date : Held that the vendor was bound to give possession to the pur. chaser on the date specified, and that evidence to prove a contemporary parol agreement varying the condition was inadmissible.-Anker v.
Franklin, 43 L.T. 317. (xiii.) C. A.-Specific Performance-Mistake.—Property correctly described
in the conditions of sale and of which a correct plan was exhibited in the sale-room, was bought by defenda ander the impression that his purchase included a piece of land usually occapied with, and not fenced off from, the property sold: Held that the defendant could not resist specific performance. — Tamplin v. James, L.R. 15 Ch. D. 215; 43 L.T. 520.
Water :(i.) Q. B. Div.-Overflow of Canal - Vis Major-Injuria absque damno.
After an excessive rainfall, the owners of a canal opened a sluice and discharged water from the canal into a brook which, in consequence, overflowed into plaintiff's mines. If the water had not been so discharged, the canal banks would have burst, and the mines would have been flooded to the same extent, though a few hours later: Held that there was no ground of action against the canal owners.—Thomas v. Birmingham
Canal Co., 49 L.J. Q.B. 851 ; 43 L.T. 435. Will :(xxv.) Ch. Div. V. C. M.-Charity-Mortmain-Charge on Realty and
Personalty - Apportionment.-Where part of a fund charged on real and personal estate is given to charities, the legacies to the charities will abate in the proportion borne by the realty to the personalty. -R6 Hill's
Trusts, 43 L.T. 623; 29 W.R. 211. (xxvi.) Ch Div. V. C. M.-Construction-Bequest of Leaseholds-Power to
retain Investments.—Bequest to trustees on trust for A. for life with remainders over, with power to retain any portions of testator's property in the same state in which it was at his decease, or to sell and convert as the trustees should think fit: Held that the trustees were at liberty to retain short leaseholds held by the testator for such period as they should think fit.-Gray v. Siggers, L.R. 15 Ch.D. 74; 49 L.J. Ch. 819;
29 W.R. 13. (xxvii.) Ch. Div. V. C. B.-Construction-Bequest of Leaseholds-Power of
Sale at Discretion.-Where a testator has given a discretionary power of
sale to his trustees, the rule in Howe v. Lord Dartmouth (7 Ves. 137) does not apply; and the Court will not interfere with such discretion.
Theobald v. King, 29 W.R. 234. (xxviii.) Ch. Diy. V. C. B.-Construction-Condition subsequent in Restraint
of Marriage—Real Estate.-Testatrix devised real estate in strict settle. ment to her brother for life, with remainder to his issue in tail, with remainders over in default of issue, with a proviso that if the brother married at any time a domestic servant, the limitations in favour of himself and his issue were to be null and void. The brother married a domestic servant after testatrix's death: Held that the condition was good, and the devises over took effect.-Jenner v. Turner, 43 L.T. 468;
29 W.R. 99. (xxix.) Ch. Div. V. C. H.-Construction-Erroneous Recital-Advance
Account.—Testator, having by his will given £7,000 upon trusts for the benefit of a married daughter and her children, by a codicil, after reciting that the daughter's husband owed him £5,000, directed that unless that som at least should be repaid before his decease, the sum of £5,000 should be taken in part payment and reduction of the legacy of £7,000 : Held that the legatee was not entitled to show that the recital in the will was erroneous, and that the sum of £5,000 must be deducted
from the £7,000.-Tomlin v. Underhay, 43 L.T. 530. (xxx.) Ch. Div. M.R.-Construction--Farming Stock.-Where the land is
given to A. and the farming stock in or about it to B., the latter is
entitled to the growing crops.-Evans v. Williamson, 29 W.R. 230. (xxxi.) Ch. Div. M. R-Construction-Gift at Thirty-Maintenance
Vesting.–Bequest to trustees in trust to pay income to B. for his main. tenance till thirty, and then to transfer the capital to him absolutely. B. survived the testator, and died under thirty : Held that B. took a
vested interest.—Isaacson v. Webster, L.R. 16 Ch. D. 47. (xxxii.) Ch. Div. V.C.H.-Construction-Gift over on death before Execution
of Trusts-Uncertainty. --Bequest of proceeds of real and personal estate (directed to be converted, with power of postponement) on trust for testator's three sons and daughter equally, the daughter's share to be retained for her separate use for life, and after her decease for her children; with a direction that in the event of any child of testator dying before testator, or before the execution of the trusts of the will, having issue, to pay to the issue the share which the parent would have taken if living : Held that the gift over on death before execution of the trusts of the will was void for uncertainty.--Roberts v. Youle, 49 L.J.
Ch. 744. (xxxiii.) Ch. Div. V. C. B.- Construction - Gift to Children-Personce
Designatæ-1 Vict., c. 26, s. 33.—Testator directed his real estate and household furniture to be sold at his wife's decease and the moneys to be divided equally between his nine children; and he bequeathed the rest of his personal estate to trustees upon trust to sell and divide the same "equally to and between all my children : " Held that the gift of residuary personalty was to the nine children as persons designated, and therefore it fell within sec. 33 of the Wills Act. --Stansfield v. Stansfield,
L.R. 15 Ch. D. 84; 49 L.J. Ch. 750; 43 L.T. 310; 29 W.R. 72. (xxxiv.) Ch. Div. M. R.--Construction—Gift to Class-Gift at twenty-one
Maintenance-Vesting.–Gift of residue to trustees on trust to apply income or sach part as they should deem expedient, for maintenance of testatrix's children, until they should attain twenty-one respectively, and then to transfer the capital to her said children in equal shares, and to settle each daughter's share whether original or accruing; with power to the trustees to advance half of the presumptive share of any
of her children. The testatrix left three children of whom one died an infant: Held that the infant did not take a vested interest in his
share.-Barker v. Barker, L.R. 16 Ch. D. 44. (xxxv.) Ch. Div. V. C. H.-Construction - Lapsed Share of Residue
Intestacy.-B. gave real and personal estate to trustees on trust to sell, and out of proceeds to pay debts and divide the residue between five persons equally. By a codicil, B. beqeathed to the issue of R., one of the five legatees, all the effects which by the will were bequeathed to R., who was stated to be dead, but if there should be no issue living at B.'s decease, then such effects should fall into the residue of the personal estate. R. never had any issue: Held that R.'s share of the residue under the will was undisposed of.--Hetherington v. Longrigg, L.R. 15 Ch.
D, 635. (xxxvi.) Ch. Div. V. C. M.-Construction-Objects of Vertu and Taste
Furniture—Pictures.-One bequest in a will included all testator's jewels, trinkets, gold and silver plate, china, and objects of vertu and taste, and another bequest was of all the statuary, furniture, and other effects in his house: Held that pictures in testator's house valued at £15,000, passed under the second bequest.-Bridgeman v. Lord 0.
Fitzgerald, 50 L.J. Ch. 9; 43 L.T. 408. (xxxvii.) Ch. Div. M. R.-Construction, Power of Appointment--Sale
Ademption.—Testator had a general power of appointment over the reversion in fee of real estate, which the trustees had power to sell with his consent; part of the estate was sold and another part contracted to be sold with his consent in his lifetime. By a subsequent will he appointed the real estate to trustees for 500 years and subject thereto to the use of A. and his heirs, and subject to the previous appointment he gave all real and personal estate of which he was possessed or over which he had a power of appointment to B.: Held that the proceeds of
sale of the estate passed to B.-Blake v. Blake, L.R. 15 Ch. D. 481. (xxxviii.) Ch. Div. M. R.-Construction-Residuary Gift-Hotch-pot- Revo
cation of Share-Lapse.—Testator gave residuary estate to trustees and executors on trust for his six children nominatim equally, and he declared that none of his children who should receive from him any money for advancement should be entitled to any part of his residuary estate without bringing in sums so given with interest at £5 per cent. into hotch-pot. By a codicil he revoked the gift to his son J., whose share in consequence lapsed. J. had received an advancement: Held that the hotch-pot clause applied to the shares taken by the children in the lapsed share, but not so as to increase the share of the testator's widow therein.-Stewart v. Stewart, L.R. 15 Ch. D. 539; 49 L.J. Ch.
763; 43 L.T. 370. (xxxix.) Ch. Div. F. J. - Construction - Substitution - Vesting. - Gift to
trustees on trust after a given event to sell and divide amongst all the children of T. and W. and the issue of such of them as should be then dead, share and share alike, such issue taking only his, her, or their deceased parent's share: Held that the fund was vested in all the children of T. and W. who came into existence before the event and survived testator, subject to be divested on death before the event leaving issue, in favour of such issue.—Moore v. Bailey, 29 W.R. 171.
Law Reports, Law Journal Reports, Law Times
Reports, and Weekly Reporter,
FOR FEBRUARY, MARCH, AND APRIL, 1881.*
By HENRY M. KEARY, of Lincoln's Inn, Barrister-at-Law.
Administration:(xiv.) Ch. Div. V. C. M.--Executor— Retainer_32 & 33 Vict., c. 46.-An
executor's right of retainer is not affected by 32 & 33 Vict., c. 46.
Crowder v. Stewart, L.R. 16 Ch. D. 368; 50 L.J. Ch. 136 ; 29 W.R. 331. (xv.) Ch. Div. F. J.-Executor's Year.-The Court may order administra
tion of an estate before the expiration of a year from the death of the
testator.- Prosser v. Mossop, 29 W.R. 439. (xvi.) Ch. Div. V. C. M.-- Executorship Account Advances by Banker. —
One of two executors, who was also a residuary legatee, opened an executorship account in his own name with a banker, and the banker advanced money to him for executorial purposes, and securities be. longing to the estate were deposited with the banker: Held that the banker was justified in making the advances, and entitled to have them repaid out of the proceeds of the securities.-Child v. Thorley, L.R. 16
Ch. D. 151; 29 W.R. 417. A greements and Contracts :(xiv.) Ch. Div. V. C. M.- Agreement to Settle--Subsequent Settlement.-A.
wrote to B., who had made proposals of marriage to A.'s daughter, that she would have £2,000 at once, and £4,000 on the death of A.'s wife. A year afterwards a settlement was executed by which A. settled £2,000 and the marriage then took place : Held that the settlement was a final arrangement between the parties.-Kingdon v. Tagart, 43 L.T. 688; 29
W.R. 278. (xv.) Ex. Div.-Breach – Damages - Renioteness. — Defendant agreed to
supply plaintiff with stabling for his horses, but did not fulfil his con
* Cases reported only in the Law Times Reports and Weekly Reporter for April 30th are postponed till the next Quarterly Digest.
tract, and plaintiff was obliged to take the horses about looking for stabling, and the horses caught cold: Heid that plaintiff could not recover damages for injury resulting from the illness of the horses.
- McMahon v. Field, 44 L.T. 175; 29 W.R. 472. (xvi.) H. L. - Breach of Forward Contract — Measure of Damages. - The
damages for the breach of a forward contract to accept goods for which there is no market is the amount of damage actually sustained, the person wbo broke tne contract not being liable in respect of additional loss caused by the other party not doing what he reasonably ought to do, and he not being bound to act otherwise than in the ordinary course
of business.—Lever v. Dunkirk Colliery Co., 43 L.T. 706. (xvii.) Q. B. Div.-Champerty-Money Lent to carry on Litigation.-An
agreement by a person having no interest in an action to furnish money to enable one of the parties to carry it on amounts to champerty, though the party who is to receive the money enters into no agreement to pro.
ceed with the litigation.-Ball v. Warwick, 44 L.T. 218; 29 W.R. 468. (xviii.) C.A.-Contract to pay money to Third Party.-An agreement between
two parties that one of them will pay a certain sum to a third party cannot be enforced by the third party.—Re Empress Engineering Co.,
L.R. 16 Ch.D. 125; 43 L.T. 742; 29 W.R. 342. (xix.) H.L.-Guarantee—Building Agreement, Completion of Houses.- Plaintiff
advanced money to T., who had agreed to build six houses for defendant, and defendant agreed to repay the money advanced on completion of the six houses in accordance with the contract between defendant and T. The contract provided that the houses were to be built under the direction of defendant's surveyor, and the first payment made on the surveyor's certificate of completion. In an action upon defendant's guarantee the jury found that the houses were completed according to the contract before commencement of the action: Held that the surveyor's certificate was not a condition precedent to the payment of the £110 to the
plaintiff.---Lewis v. Hoare, 44 L.T. 66; 29 W.R. 357. (xx.) C. P. Div.-Warranty-Estimated Quantity.- Plaintiffs were informed
by a commission agent that defendant had about 150 tons of old iron in his yard for sale, and they wrote to defendant saying that they understood he had about 150 tons of iron for sale, and offered him 80s. a ton. Defendant accepted the offer, but only delivered 44 tons, that being the amount in the yard. The agent had seen the iron in the yard, and had said to defendant that it seemed about 150 tons, and the reply was, “ Yes, or more:" Held that there was no warranty as to
quantity.-McLay v. Perry, 44 L.T. 152. Arbitration :(iv.) C. A.-Award-Mistake.-A mistake by the arbitrator as to the legal
effect of his finding is no ground for setting aside an award.- Greenwood
v. Brownhill, 44 L.T. 47. (v.) C. A.-Claim and Counter-claim--Costs to follow the Event. -A claim
and counter-claim were referred to arbitration by an order providing that the costs were to follow the event unless otherwise ordered. The arbitrator awarded that a certain sum was due from plaintiff to defendant in respect of all matters in the action: Held that the award must be referred back to the arbitrator to find specifically the issues between the parties, and that "event" in the reference must be read distributively
as if it were "events."-Ellis v. Desilva, 44 L.T. 209; 29 W.R. 493. Bankruptcy: (xl.) C. J. B.-Act of Bankruptcy-Bill of Sale-Past Debt.-A farmer gave
a bill of sale over all his available property to secure a past debt and